Friday, October 12, 2012

Arbitrator can't order company to create Zero Tolerance policy

So ruled the magistrate in United Food & Commercial Workers, Local 7 v. King Soopers, Inc. (D. Colorado).

A bargaining unit employee had filed a grievance claiming that a customer created a hostile work environment and that King Soopers failed to provide him with a "hostile-free" workplace. On June 3, 2011, the arbitrator issued an award, finding that the grievance was arbitrable and that King Soopers had not fulfilled its duty to provide a "hostile-free" environment. He ordered the Company to take "all steps necessary" to provide a hostile free work environment, including "the creation of a zero-tolerance policy for violence...." King Soopers did not comply with the award and on September 27, 2011, the Union filed suit seeking to confirm and enforce the award.

The Court  ruled initially that King Soopers' defenses to enforcement were barred by its failure to seek to set aside the award within the applicable statute of limitations (ninety days in Colorado). Nevertheless, in ruling on the Union's motion to confirm the award, the Court concluded that the arbitrator had exceeded his authority and that the award did not draw its essence from the parties' contract. The cba limited the arbitrator's authority to arbitrating disputes arising over the interpretation or application of the agreement. Finding no cba provision relating to a duty to provide a work environment free of customer hostility, the Court determined the arbitrator based his decision on "federal and state laws, internet articles, prior arbitration decisions, and other materials unrelated to the CBA."

The Court also found the award contrary to the contract's explicit recognition that  the "Employer retains the right to manage the store ... and to make reasonably necessary rules and regulations ... not in conflict with the terms of this Agreement ...."

Rejecting the Union's request to confirm the award, the Court concluded:

Here, the arbitrator effectively altered the terms of Article 5, Section 14 when he ordered King Soopers to establish a "zero-tolerance policy for violence" and to exclude [the customer] from the store "until the parties are satisfied with his behavior." Those are matters reserved to King Soopers under Article 5, Section 14.

The arbitrator's decision is not related to a dispute or complaint over the interpretation or application of the CBA, and his award does not draw its essence from the CBA.

UPDATE: The Tenth Circuit reversed the District Court and ordered the arbitrator's award confirmed. Employer's failure to timely seek to set aside arbitrator's award precludes defense to Union's action to confirm


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