Monday, February 27, 2012

Is there a privilege for union member/union rep discussions?

That is the issue that will be argued tomorrow before the Alaska Supreme Court in Petersen v. State of Alaska. In a civil suit filed by Petersen, the State of Alaska sought production of communications between Petersen and his union representative. Petersen resisted production, arguing that communications with his union representative, his sole representative in the grievance process, should be treated as protected from disclosure by either the attorney client privilege or “by a new privilege, hitherto unrecognized under Alaska law, for communications between a union member and a union representative during the grievance process” .The trial court (in an opinion linked at Alaska Employment Law here) rejected this argument and concluded that it was without the authority to create such a new privilege, leaving that to the Legislature or the Alaska  Supreme Court. 
The question of whether communications between a union representative and a bargaining unit employee is discussed by  Professor Mitchell Rubenstein at Adjunct Law Prof  Blog  Adjunct Law Prof Blog: New York Lower Court Effectively Rejects Labor Union Privilege,  and is the subject of an article by him, and the availability of such a privilege in the federal sector is discussed by Peter Jeffrey at “Are Communications Between A Union Representative And A Bargaining Unit Employee Privileged?” | The Jeffrey Law Group, PLLC | The Federal Employee's Law Firm

Update: The Alaska Supreme Court has recognized a labor relations privilege. The court's decision is available here.

Friday, February 24, 2012

Labor arbitration in the news

Arbitrator Shyam Das has sustained the grievance filed on behalf of Ryan Braun, overturning his 50 game suspension. Ryan Braun’s 50-game suspension overturned by baseball arbitrator Shyam Das - The Washington Post

The Jefferson Parish School Board Association and the Jefferson Federation of Teachers have begun an arbitration hearing before Arbitrator James Sherman concerning the propriety of last years teacher layoffs. Opening of arbitration on Jefferson Parish teacher layoffs suggests long sessions ahead |

Arbitrator James Cochran has issued an award concluding that watching cement dry is not within the primary duties of school custodians. Don’t ask Nashua janitors to watch cement dry, says arbitrator -

An arbitrator has upheld the termination of a Bethlehem, Pa police officer, allegedly for lying during an internal investigation. Arbitrator upholds firing of former Bethlehem police officer John Nye -

Monday, February 20, 2012

CNA’s Motion to Dismiss Kaiser’s action to compel arbitration denied

The US District Court for the Northern District of California has denied CNA’s  Motion to Dismiss Kaiser’s suit to compel arbitration. Kaiser is seeking to arbitrate its claim that the CNA breached the no strike clause in its collective bargaining agreement. The agreement’s no strike provision states:

There shall be no strikes, lockouts or other stoppages or interruptions of work during the life of this Agreement. All disputes arising under this Agreement shall be settled in accordance with the [grievance] procedure outlined above.

 CNA claimed that only the Union could file grievances or seek arbitration.

CNA based its argument in part on contract language that provided:

The [CNA], as the exclusive bargaining representative of the employees in the bargaining unit, has the sole and exclusive right to file, pursue, withdraw or resolve grievances at any step of the procedure. The parties agree that the grievance/arbitration procedure is the sole and exclusive remedy for any and all disputes or rights arising from or relating to the Agreement.

The Court observed that while the agreement is clear that only the union may file a grievance on behalf of employees, it was at least ambiguous about whether Kaiser may submit a grievance for arbitration. It further noted that if the contract were read to prohibit Kaiser from filing for arbitration it could leave Kaiser with no remedy for a Union breach.

Given the presumption of arbitrability, and the standards applicable to a Motion to Dismiss, the Court denied the Union’s Motion and allowed the case to proceed.

The Court’s decision can be found here.

Friday, February 17, 2012

Labor Arbitration in the News

Arbitrator Frank Kapsch has upheld the termination of a Hasting, Minn. police officer for his conduct in emailing a civilian and his inappropriate interaction with her. Arbitrator rules city was justified in firing Hastings officer, who had engaged in inappropriate relationship with domestic abuse victim | The Hastings Star-Gazette | Hastings, Minnesota.  A copy of Arbitrator Kapsch’s award can be found here.

In what it described as an “exquisitely close case”, the Rhode Island Supreme Court has declined to find a union representative engaged in the unauthorized practice of law in representing the union in a labor arbitration concerning minimum staffing levels. While noting that the presentation of evidence and the examination and cross examination of witnesses were activities usually performed by attorneys, the court was reluctant to disturb the widespread practice of lay representation in labor arbitration. It concluded that  “…we will not limit [non lawyer] involvement at this time. We may in the future, however, decide the generic issue of nonlawyers participating in public grievance arbitrations." Non-lawyers allowed to act in RI labor arbitration - The court’s decision can be found here.

American Airlines has filed an action seeking to set aside an award reinstating a  pilot  after his termination for "lack(ing) the basic airmanship skills necessary to serve as an airline pilot." Up in the Air

Costs of arbitration in the USPS  USPS paid out $28 million in arbitration awards in 1st quarter and the MBTA  Big bucks for axed T stiffs.

Monday, February 13, 2012

Retired police officer, now firefighter, entitled to reimbursement of health care premiums

Finding the grievance both procedurally and substantively arbitrable, Arbitrator Francis Donal O’Brien finds that the Town of North Providence, Rhode Island violated its agreement with the Fraternal Order of Police by failing to reimburse a retired police officer for health care contributions required in his subsequent employment.
Grievant was employed by the Town as a police officer for over 20 years prior to his retirement. The applicable cba provided that upon his retirement he would be eligible to receive continued medical coverage, with the Town paying 100% of the premium.  The agreement also provided that if he became employed by a firm, person or corporation providing paid  family medical coverage his Town coverage would be suspended but the Town would reimburse him for any contribution required by the “new” employer
After his retirement from the police department ,grievant attended the North Providence fire academy as was hired by the Town as a firefighter.  The firefighters were represented by a union other than the FOP, and the contact covering them required a premium contribution for covered employees.  The Town refused to reimburse grievant for the required contribution, contending that it was not a “new” employer.
                While finding the Union and grievant “took an exceedingly long time” to file a grievance, the Arbitrator concluded that the grievance was a continuing one and the grievance was therefore timely. The Arbitrator also concluded that while grievant was no longer part of the FOP bargaining unit, the Union had the right to arbitrate a claimed violation on contract language specifically applicable to retirees.
                On the merits, the arbitrator found that the language of the cba applicable to continuing health care coverage was not dependent upon whether the subsequent employer was a “new” employer or the same employer. Accordingly he upheld the grievance.
The arbitrator's award can be found here.

Friday, February 10, 2012

Labor Arbitration in the news

Arbitrator Richard Boulanger found the city of Salem, Mass. bound by past practice to pay a retired police officer for paid holidays and vacation pay for the remainder of the year he retired.  Ruling: City must pay cop

Double secret probation? CWA reports on an arbitration award setting aside a ten year probation period imposed on an employee for, among other reasons, the Company's alleged failure to inform the grievant or the union of  the action. Arbitration Award: CWA Local 9003/Verizon Accident Plan

SEIU Local 1107 has filed suit seeking to enforce an arbitrator's award reinstating a grievant after the employer, a hospital, allegedly refused to reinstate the grievant who had been terminated for claimed involvement in a patient's death.  Union sues after Sunrise refuses to rehire nurse

Monday, February 6, 2012

Marriage not a basis for termination

          In a case involving the State of Maine and the Maine State Employees Association, Arbitrator Joseph Daly reversed the termination of an employee of the state’s Bureau of Insurance. The termination took place after Grievant submitted an inquiry about whether his participation in the Department’s audit of an insurance company where his wife was employed as a manager would constitute a conflict of interest. After receiving the inquiry, Bureau management, after consultation with its legal counsel, concluded that Grievant’s employment was in violation of a statute prohibiting a “connection” between Bureau employees and insurance company management. Grievant was terminated based upon a “conflict of interest” in violation of the statute.
          Arbitrator Daly concluded that the State failed to establish just cause for the termination. The arbitrator noted that Grievant’s marriage was well known in the Bureau, and that it was undisputed that his termination was not for any form of misconduct. In sustaining the grievance, the arbitrator observed:

          In this case, there is absolutely no evidence of any critical analysis or legal reasoning supporting the legal conclusion that Section 209 disqualified [Grievant] from continued employment with the Bureau. None of the statutory provisions or ethical guidelines introduced into the record clearly compelled [Grievant's] termination; and the notions of ‘fairness’ and ‘reasonableness’ required the State, when determining whether or not to discharge an employee with thirteen years of unblemished service to the State, to gather and present at least a modicum of evidence, or analysis, or reasoning to support its interpretation of the various statutes and ethical guidelines.

          In sum, the arbitrator concluded that the State failed to establish that its interpretation of the relevant statute was correct, and that it failed to demonstrate that it considered any alternatives to termination.

          Arbitrator Daly's award can be found here

Friday, February 3, 2012

Labor Arbitration in the News

          AFSCME Local 788 President Denise Nephew comments on an adverse award from Arbitrator Kenneth Toomey. In My Opinion-Behind the city lockbox program

          Niagara Frontier Transportation Authority must submit its unresolved labor agreement to binding interest arbitration. NFTA union wins right to arbitrate

The Pennsylvania Commonwealth Court has upheld an arbitrator's award requiring the City of Scranton to refund  increases in health insurance costs. Ruling against Scranton upheld. The court's decision can be found here.