Monday, January 30, 2012

Statute incorporated into collective bargaining agreement subject to arbitration

The collective bargaining agreement between the Town of Saugerties and the Town Of Saugerties Policeman's Benevolent Association contained a provision that the Town "agrees to comply with the requirements of Section 971 of the Unconsolidated Laws of New York." That statute limited the ability of the Town to require a police officer to work in excess of 8 hours in a 24 hour period. The Union sought to arbitrate a dispute about the application of this provision, and the Town sought a court order staying the arbitration. The Town argued that resolution of the grievance would require application or interpretation of the terms of the statute and maintained that public policy would not allow an arbitrator to do so.

Affirming the lower court, the New York Appellate Division rejected the Town’s claims. It noted that the incorporation of the statute makes it a substantive provision of the agreement, and that no public policy precluded its interpretation by an arbitrator.  As it was clearly covered by the arbitration provision of the agreement there was no basis for a stay. 

The court’s decision can be found here.

Friday, January 27, 2012

Labor Arbitration in the news

Arbitrator Richard Bloch has found the Postal Service in breach of its labor agreement by its unilateral implementation of a work measurement system. Arbitrator Bloch Rules That the Postal Service's 2010 Time Study Violated Article 34

The City of Plattsburgh and AFSCME each prevailed in grievances involving the City's Finance department.

Montgomery County Md. is ordered to restore compensatory leave to employees also receiving longevity increases. Montgomery county ordered to repay comp time to more than 80 employees.

Arbitrator Michael Cavanaugh ruled that the City of Bainbridge Island violated a labor agreement that specified that layoffs and job reclassifications be carried out strictly in seniority order. Bainbridge ordered to rehire four laid-off workers, pay lost earnings. [ Arbitrator Cavanaugh's award can be found here]

Finally, while not directly involving labor arbitration, Eric Epstein has an interesting article in ADR Times concerning credibility resolutions in arbitrations involving claims of sexual harassment. She said, He said : How Does An Arbitrator Decide Who to Believe?

Monday, January 23, 2012

Arbitrator's reliance on past practice not beyond scope of authority

          A Texas Court of Appeals has rejected an attempt to overturn an arbitration award concerning buy back of unused sick leave.City of Laredo v. Mojica.

          The dispute arose when the City stopped buying back unused sick leave, claiming that the contractual buy back process was discretionary and the cost of buying back unused sick leave from all City employees would have been financially burdensome. The union asserted that the City’s decision to suspend the program violated the CBA.

          The arbitrator concluded that the contract did give the City discretion concerning the buy back issue, but “the City’s unvarying practice of exercising its annual option to purchase accumulated sick leave for more than 10 years reasonably has led the Union and its members to expect the City to continue to exercise the annual option absent a good faith reason to suspend the program.”

          In seeking to set aside the award, the City maintained that the arbitrator exceeded his authority under the contract by considering whether the firefighters’ expectation that the City would buy back their sick leave was subject to a “good faith” standard.

          In refusing to set aside the award, the court held:

Because Mojica alleged a violation of the CBA due to the City's past practices, this would affect the interpretation or application of the CBA's provisions. Therefore, we hold the issue of the City's past practices of buying back the firefighters' sick leave was an arbitrable issue
Here, the CBA did not expressly state that the City's past practice of buying back sick leave or whether the City acted in good faith could be considered. But, even if the arbitrator made a mistake of fact or misapplied the substantive law when he considered the City's past practices, we find his consideration of the City's past practice drew its essence from the CBA                    

Wednesday, January 18, 2012

Arbitrator Upholds Fire Department Staffing Requirement

          Arbitrator Dennis Maloney issued a supplemental award requiring the City of Springfield , Ill. to restore its 49 employee minimum staffing rather than the 46 employee plan implemented by the Fire Department. Arbitrator Maloney noted that the contract allowed for a reduction of the minimum staffing in the event of layoffs required by lack of funds. However, since the City agreed that layoffs would be avoided during the "difficult financial times", the minimum staffing promise prevailed and the Union's grievance was sustained.

          The Springfield State Journal-Register has an article describing the case, with a link to the award, here

Monday, January 16, 2012

Impossibility of performance no defense to breach of contract

Arbitrator Paul Glendon has issued an award finding that the City of Taylor, Michigan breached its labor agreement with the Taylor Professional Firefighters Association, Local 1252. The agreement between the City and the Union contained a minimum staffing guarantee. The contract was scheduled to expire on June 30, 2011 but, pursuant to its terms, was continued in effect during negotiations for a successor agreement. On July 1, 2011 the City implemented layoffs of firefighters, reducing the staffing below the guaranteed minimum. The City justified its actions based on seriously declining economic conditions. The City contended that “the present financial crisis ….results in a legal justification for breach of the collective bargaining agreement.”
Arbitrator Glendon rejected the City’s position. In doing so he noted that the contract did anticipate layoffs in certain situations, but no exception was made to the minimum staffing guarantee. He also rejected the City’s claim that any breach was justified by the financial impossibility of performance, writing that “it would be an abuse of arbitral authority to countenance the City’s unilateral attempt to alter or modify the contract … notwithstanding any dicta by the Ohio Court of Appeals concerning the applicability of general contractual defenses to arbitration of disputes arising under a collective bargaining agreement.”

Finally, Glendon observed that, in any case,the City’s evidence failed to establish that the layoffs were a matter of unavoidable necessity.

Thursday, January 12, 2012

Labor Arbitration in the News

Termination of Holland Mich. City Clerk upheld. Arbitrator decides Holland firing of clerk justified.

Arbitrator James Mancici converts termination to suspension. Brook Park policeman wins back job.

Arbitrator Lawrence Coburn awards police officers additional pay for working late shifts Nazareth officials must pay police back pay, arbitrator says.

An interest arbitration decision: Arbitrator decides on Nutley police contract

Wednesday, January 11, 2012

Management rights clause properly subject to arbitral review

          The Eighth Circuit has affirmed enforcement of an arbitration award finding that Breckenridge O'Fallon violated its labor agreement by inconsistently applying its return to work policy. Breckenridge O'Fallon, Inc. v. Teamsters Local Union No. 682.

          Grievant was injured on the job and was out for an extended period. After a workers compensation physician released him to return to work , Breckenridge required him to complete a functional capacity evaluation (FCE) pursuant to its return to work policy. The FCE physician found him unable to return to work, as did another physician selected by grievant from a list provided pursuant to the policy.

          Grievant's personal physician subsequently released him to return to work without restrictions but Breckenridge refused to schedule a second FCE. Grievant and the Union claimed that Breckenridge was inconsistently applying its policy and ultimately arbitrated the issue.

        The arbitrator concluded that while the company had the contractual right to establish reasonable rules, including those relating to FCEs, it had to apply those rules consistently. Finding inconsistent enforcement, the arbitrator ordered the company to schedule grievant for another FCE and to restore his seniority if he passed.

          Breckenridge sought to set aside the award, arguing that it failed to draw its essense from the parties CBA. The district court rejected this claim and the circuit court affirmed.  The court noted that the case was an unusual one because "the grievance as resolved by the arbitrator involved only the CBA's management rights provision. " Nevertheless, the court concluded:

                    When a management rights provision is expressly limited to the right to establish            reasonable work rules, determining whether the employer acted reasonably in adopting and applying its work rules is within the scope of the arbitrators authority to decide a particular grievance the parties have submitted to him.

          The court rejected the company's challenge to the merits of the claim, observing that the correctness of the arbitrator's decision was beyond the scope of their limited review. The court also rejected the company's claim that the award was contrary to the employer's right under the FMLA to require the employee to obtain a third medical opinion when there were conflicting opinions, noting that this right was permissive rather than mandatory, and that nothing in the FMLA diminished the obligation of an employer to comply with its collective bargaining agreement.


Sunday, January 8, 2012

Eighth Circuit applies Pyett, sends FMLA claim to arbitration

           The Eighth Circuit has affirmed a district court’s decision dismissing plaintiff’s FMLA claim, sending the claim instead to arbitration. Thomson v Air Transport International LLC.

            Plaintiff was employed as a pilot by ATI. In early 2009 he missed eight weeks of work because of illness and related surgery. His employment was terminated after his return to work, allegedly because of a violation of operational procedures. He filed suit claiming the termination was in retaliation for his taking sick leave, in violation of the FMLA. 

            ATI moved to dismiss, arguing that the claims were subject to mandatory arbitration under the collective bargaining agreement covering his position. That agreement provided in relevant part:
                    [C]laims of discrimination arising within the employment relationship between Company and the Crewmembers, whether such claims are made under the collective bargaining agreement or in state or federal court and alleged to be violations of state or federal law ... are to be addressed, resolved  and finalized solely under Section V- Grievance and/or [Section] VI-Arbitration of the Agreement... 

          Plaintiff claimed that the mandatory arbitration provision was part of an unconsionable waiver of his FMLA rights, pointing to language of the Agreement that "each Crewmember waives each and every cause of action and remedies provided under these statutes and common law frameworks."

          Rejecting this claim, the Court noted that, when read in context ,the language plaintiff pointed to was not a waiver of substantive rights, but instead was a waiver of a judicial forum. The Court further noted that the Suprreme Court held in 14 Penn Plaza LLC v. Pyett that such a waiver could be made by a union as part of a collective bargaining agreement. As a result, the Court affirmed the dismissal of the lawsuit.

Thursday, January 5, 2012

Labor arbitration in the news

While I attempt to link to publicly available full texts of arbitration awards and court decions, its not always possible. Below are some recent new reports discussing labor arbitration issues

Lousiana teachers can arbitrate claims that layoffs violate contract. Judge rules in favor of Jefferson teachers union |

Police Lieutenant fired for covering up hit and run by fellow officer ordered reinstated. .Fired cop ordered reinstated, but demoted - Connecticut Post

Illinois State Board of Education ordered to pay employees for travel time. Daily Chronicle | Arbitrator rules ISBE must compensate employees for travel

City of Scranton’s efforts to overturn arbitration award rejected. Ruling over city arbitration award upheld - News - The Times-Tribune (links to decision)

Monday, January 2, 2012

Receipt of retirement benefits doesn't waive arbitration over termination

          A California Court of Appeal has reversed the lower court's refusal to order arbitration of a claim that San Joaquin County had wrongfully terminated grievant's employment. SEIU Local 1021 v. San Joaquin County. The County had initially agreed to arbitrate the termination grievance. When grievant subsequently applied for and received retirement benefits the County refused to proceed, arguing that the receipt of retirement benefits deprived the arbitrator of jurisdiction. The County also contended that once grievant retired from his job he was no longer an employee under the Memorandum of Understanding between the Union and the County.
        The Court rejected both arguments, concluding "[w]here  a former employee has been terminated, seeking retirement benefits does not result in a voluntary resignation from ... employment". The Court further noted that grievant's election to receive retirement benefits was independent of his interest in continued employment with the County and did not undermine his contractual right to arbitrate his termination.
       Accordingly the Court ordered arbitration of the dispute.