Monday, July 30, 2012

Statute of Limitations to enforce arbitration award; six months, one year or six years?

The U.S, District Court for the Eastern District of Michigan has issued a decision enforcing an arbitration award, rejecting the employer’s claim that the action was barred by the statute of limitations. IBEW LOCAL 58 v. Metro Electric Engineering.

The Union had filed a grievance claiming that Metro Electric had violated the exclusive referral procedures of its combined bargaining agreement. On October 27, 2010, the Labor-Management Committee upheld the grievance and ordered Metro to make whole employees who had been improperly bypassed. Metro did not seek to set aside the award.

On July 13, 2011 the Union demanded payment of $408,086.33 as compensation for the affected employees. Metro again objected to the LMC decision on substantive and procedural grounds but did not challenge the calculation. Metro failed to comply with the award and on September 30, 2011 the Union filed a complaint seeking confirmation of the award. The parties thereafter filed cross motions for summary judgment.

Metro maintained that the Union’s action was untimely, arguing for a six month limitations period. The Union countered that the appropriate limitations period was one year.

The Court rejected both positions. Noting that while the law was clear on the limitations period for actions to vacate an arbitration award (three months in the Sixth Circuit), it found the law less clear on the period for enforcing an award. Analogizing the action to one for breach of contract, the court ultimately relied on the Supreme Court’s decision in Automobile Workers v. Hoosier Cardinal Corp. and concluded that the appropriate limitations period was six years, the state law limitations period for breach of contract. “Just as the United States Supreme Court applied Indiana’s six-year statute of limitations for a breach of a contract, the Court applies Michigan’s six year limitations period for a breach of contract claim to the instant Sec. 301 claim to enforce the LMC Decisions under the CBA.”

Because the employer had never timely filed to vacate the award it was precluded from challenging the award on procedural or substantive grounds.

Friday, July 27, 2012

Labor Arbitration in the News

School District seeks to set aside award reinstating teacher accused of using improper physical force

The Kewaskum, Wisconsin School District is seeking to set aside an arbitrator’s award reinstating a special education teacher who had been terminated for allegedly using improper force with students. School District asks court to uphold teacher's firing. The District claims that the Arbitrator failed to accord credence to student testimony unless it was corroborated by independent adult witnesses and that the award “represents deliberate indifference to the likelihood that more students will be deprived of the full benefit of educational programs to which they are entitled.” Arbitrator Stanley Michelstetter’s award can be found here.

Termination of teacher for improper contact with student upheld

The Pensacola News Journal reports on an award upholding the termination of an Escambia, FL teacher for improperly texting a student Teachers texting students: Escambia case raises questions, concerns. Arbitrator Jeanne Charles Wood upheld the termination, finding that Grievant’s texting of the student, which extended over a period of several days and included texts at various times through the day and into the evening, demonstrated “repeatedly exercised poor judgment” and that the escalation of personal contact was “sufficient to give the Employer grave concern as to whether the Grievant can be trusted in the school system” The Arbitrator concluded that the Employer has a duty to protect the children in its care and “placing the Grievant back in the school system would be a breach of that duty.” The full text of Arbitrator Wood’s award can be found here.

Arbitrator orders apology as remedy

Arbitrator Jonathan Monat has ordered the USPS District Manager to apologize to employees affected by the bullying and intimidation of a former supervisor. Arbitrator Monat found that the conduct violated the Joint Statement on Violence and Behavior in the Workplace and that LA District Management had failed for an extended period of time to address the problem. As a remedy, the Arbitrator ordered the LA District Manager to “issue a written apology to the employees in the Redondo Beach Post Office stating that it failed to act…. This apology shall acknowledge the feelings and concerns of the Redondo Beach employees and state that the District Manager will act proactively…” in the future. The Arbitrator also ordered the District Manager or his high level designee to personally apologize to the employees in the office. The text of the award can be found here.

NYC unsuccessful in efforts to overturn school closing award.

SchoolBookreports that a judge has refused to overturn Arbitrator Buchheit’s award concerning New York City’s efforts to close and reopen certain schools it believed were underperforming. Judge Backs Union in Turnaround Ruling. The Judge concluded that the Arbitrator acted within his authority under the contract. The City indicated it intends to appeal the ruling. The arbitrator’s original decision is discussed here.

Monday, July 23, 2012

Teachers improperly denied “voice” and improperly required to attend after hours school concerts

The Neshaminy, Pennsylvania School District and the Neshaminy Federation of Teachers are parties to two recent arbitration decisions. In the first, Arbitrator Thomas McConnell found that the School District failed to give the Teacher’s Association “voice and status equal to other members of the committee” as required by the collective bargaining agreement. Arbitrator McConnell’s award can be found here.

The issue involved the District’s scheduling of the agenda for one of the in-service days referenced in the cba. The parties had a practice of scheduling three in-service days throughout the year. One was a District in-service day for which the District determined the agenda, a second was a Building in-service day for which the staff typically set the agenda, and the third was a split day with half the agenda set by the District and the other half determined by the staff with input from the administration. The grievance claimed that the District violated the cba by imposing a requirement that the building agenda include one segment exclusively devoted to state mandated proctor training. In agreement with the Association the arbitrator concluded that the District violated the contract’s requirement that “[w]hen any committee is established by the District which includes Employees, those Employees shall have voice and status equal with other members of the committee in the development of recommendations” by unilaterally mandating the inclusion of the training on the building portion of the agenda. Rejecting the District’s reliance on its contractual right to “final authority in matters of educational policy and developments” the Arbitrator noted:

While understandably each party wants to stake out positions in relation to ultimate rights, this case really underscores that the “marketplace of ideas” engendered by a collective process could have uncovered options-as it had in the past- which might very well have produced resolution to a problem rather than a conflict.

In a second case, Arbitrator James Darby found that the District violated the agreement by requiring elementary school music teachers to attend evening concerts without additional compensation for doing so. The District’s bargaining website links to the
award. The District argued that attendance at the concerts was an expectation of the teacher’s job and no additional compensation was required. The Federation maintained that teachers had always voluntarily attended the concerts, but they could not be required to do so.

Noting that the contract provides that the “normal work day” for classroom teachers is seven hours, Arbitrator Darby concluded that while the language clearly and unambiguously requires teachers to work a seven hour day, “[i]t also means that the District cannot expect teachers to work more than seven hours gratis.” He recognized that it might make little sense that a teacher who spent considerable time preparing students for the evening concerts could unilaterally decide to forego the concert, he concluded this was an operational, not a contractual, issue. Arbitrator Darby concluded:

 Teachers could reasonably be required to specify their attendance intentions well in advance of the concert for planning purposes. Concerts can be held during the normal workday, as has been done in the past. In any case, this operational concern cannot change the plain meaning of the parties’ Agreement and the seven-hour provision.

Friday, July 20, 2012

Alaska Supreme Court Recognizes Labor Relations Privilege

In its decision today in Peterson v. State of Alaska, the Alaska Supreme Court reversed a lower court decision and recognized an evidentiary privilege for communication between a union representative and an employee relating to the union’s representation of the employee.

Plaintiff was employed by the Alaska Department of Labor. After his employment was terminated he filed a grievance under the State’s contract with the Alaska State Employees Association. Pursuant to that contract, his grievance was handled by a non-lawyer union representative. The parties were unable to resolve the grievance, and the Union elected not to pursue the case to arbitration. Plaintiff subsequently filed a wrongful termination suit in superior court.

During discovery the State sought to compel production of the Union’s grievance file, including copies of all correspondence between plaintiff and the Union. Plaintiff sought a protective order, arguing that such communication was privileged from disclosure, but that position was rejected by the superior court.

On review the Supreme Court, while noting that no currently recognized evidentiary privilege protected these communications, determined, after reviewing cases arising under the NLRA, and New York’s public sector labor statutes, that a privilege could be “implied “ under Alaska’s Public Employment Relations Act(PERA). The Court summarized the limitations of its holding as follows:

The union-relations privilege we recognize today under PERA extends to communications made: (1) in confidence; (2) in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings; (3) between an employee (or the employee’s attorney) and union representatives; and (4) by union representatives acting in official representative capacity. The privilege may be asserted by the employee or by the union on behalf of the employee. Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.

The Court also held that the privilege “should not be lost if the grievance dispute is not resolved and the employee files a civil suit, otherwise the statutory protection is greatly undermined.”

This issue, and recognition of a similar privilege by statute in Maryland, is discussed here and here.

Labor Arbitration in the News

Ford did not violate “Equality of Sacrifice” letter

 Arbitrator David Grissom has rejected a grievance filed by the UAW that claimed Ford violated the Equality of Sacrifice letter included in the Ford/UAW contract as part of the modifications negotiated during the 2008-2009 fiscal meltdown. The full text of Arbitrator Grissom’s award can be found
here. Arbitrator Grissom concluded that the UAW had failed to meet its burden of proving a commitment by Ford to forego merit increases and 401K matches for salaried employees as a condition of the UAW’s agreement to contract concessions.

Busy week for Arbitrator Edwin Benn

 Both the Chicago School Board and the Chicago Teacher’s Union have rejected the recommendations contained in Arbitrator Edwin Benn’s report for solving their contract impasse. Chicagoist has a report on the reaction of both parties, and links to the full text of the arbitrator’s report.
School Board, Teachers Union Say No To Arbitrator's Report

Arbitrator Benn separately declined a remand from a Cook County judge who wanted him to engage in fact finding on whether the state had money to pay the raises called for in the union contract.
State Journal Register: Arbitrator demurs, state pay raise case back to Chicago court. Arbitrator Benn concluded it was beyond his authority as an arbitrator to engage in the additional fact finding.

Police Chief’s bypass of senior employee with highest test score upheld

 Arbitrator Chuck Miller has rejected a grievance filed by the Austin, TX Police Association challenging the decision of the Police Chief to bypass a senior employee for promotion. The Chief denied promotion to an officer who had recently received a fifteen day suspension for incorrectly filling out paperwork relating to traffic enforcement.
Austin For first time, police chief prevails when promotion case goes to arbitration.

Ninth Circuit to hear claim that company rep allegedly threatened arbitrator

According to Courthouse News Service, the Ninth Circuit is being asked to review the dismissal of a claim that a railroad representative on a Public Law Board allegedly threatened an arbitrator if she ruled in favor of the grievant. The plaintiff claims that the neutral arbitrator had prepared a preliminary decision upholding the grievance but, as a result of the threat, recused herself and a subsequent panel upheld the termination.
9th Circuit Asked to Reverse Worker's Firing. The District Court had dismissed the complaint, finding no fraud or corruption contributing to the final decision.

Monday, July 16, 2012

Union violated Most Favored Nation provision, ordered to reduce wages and benefit contributions

Arbitrator Rosemary Townley has issued an award finding that the New York District Council of Carpenters breached the MFN provision of its contract with the Manufacturing Woodworkers Association of Greater New York. Arbitrator Townley’s award can be found here. The arbitrator determined that the MWA was entitled to retroactive application of the better terms and conditions to the date of the more favorable contract.

The contract provided “Should the Union knowingly allow its members to work for competitors of the employers for less than the wages established by this agreement… then the wages and/or conditions contained in this agreement shall immediately be changed to conform to the more favorable conditions.”

While there was conflicting testimony over whether the companies involved were in fact competitors, the arbitrator found that:

Although the DC argues that Gilbert’s business is 95% trade show oriented, while the MWA’s is a small percentage of its overall business, such facts are irrelevant in light of Article XXIV which is silent with respect to the percentage of work to be performed by a company to qualify as a “competitor.” Rather, the issue is whether the Company has any sales in the same market as the MWA employees. If the parties intended to attach percentages to the level of competition, then they would have added such language to this provision of the Agreement.


Accordingly, Gilbert must be regarded as a “competitor” to the MWA employers, who are entitled to its requested remedy of the retroactive application of the better terms and conditions….

Update: Arbitrator Townley has issued her award on the remedial phase of the dispute here.

Friday, July 13, 2012

Labor Arbitration in the News

Portland loses another police conduct arbitration

 OregonLive reports that Arbitrator Timothy D.W. Williams has reversed the two week suspensions imposed on two police officers arising from their involvement in the arrest and in custody death of an individual in September of 2006. Arbitrator reverses discipline against Chris Humphreys, Sgt. Kyle Nice in the Chasse case. Arbitrator Williams concluded that while “much could have been done differently,” the evidence did not support the discipline imposed for the officers for failing to have the suspect transported to the hospital by ambulance and for allegedly failing to properly notify the paramedic who cleared the transport that the suspect had been tasered. Arbitrator Williams’ award can be found here. As noted here, Portland is still involved in the controversy over its refusal to comply with another arbitrator’s award ordering the reinstatement of an officer involved in a shooting resulting in a citizen’s death.

Interest award issued in NRLCA/USPS dispute

 A panel chaired by Arbitrator Jack Clarke has issued an award settling the terms of the contract between the National Rural Letter Carriers and the US Postal Service. Arbitrator Clarke rejected the claim of the Postal Service that this interest arbitration was akin to a restructuring in bankruptcy, noting that structural and regulatory concerns were for Congress to decide; the interest arbitration was limited to setting the wages and benefits of the Rural Letter Carriers. The full text of the award can be found here.

Teachers can be required to teach six courses in school day

According to the Oswego, NY Palladium-Times, Arbitrator Robert Rabin has issued an award upholding, in part, a grievance challenging the School District’s directive mandating six period teaching days. The arbitrator ordered the District not to blanketly require all teachers to teach six periods but upheld the District’s right to require a sixth period assignment on an individual basis to bring the teacher closer to the contractually described student capacity and class load. Arbitrator renders decision on OCTA grievance

University’s change to cleaning method not barred by past practice.

Arbitrator Harry S. Crump has rejected a grievance filed by Teamsters Local 320 claiming that the University of Minnesota deviated from past practice and modified the process by which employees bid on areas to be cleaned. Custodians say team cleaning is still an issue. The University had switched from an “area cleaning” approach to a “team cleaning” process. In rejecting the Union’s grievance the arbitrator observed:

 The University also conclusively established that there is no binding past practice of having only one person bidding into or cleaning a defined area. There is actually a past practice of team cleaning, both before and after the MOU, and there is a past practice of more than one B&G Worker bidding into a defined area; and more than one B&G Worker cleaning in a defined area. In addition, the right to determine staffing is specifically reserved by the management rights clause of the contract and PELRA, and the bidding into and cleaning by more than one person into a defined area is an exercise of managerial discretion and cannot provide the basis for a binding past practice. Finally, the conditions upon which the alleged past practice was based have changed, and also, any binding past practice was clearly repudiated by the University giving timely and proper notification of intent to do so in 2001 before negotiations of the MOU. Any prior past practice limiting the number of FM B&G Workers bidding into or cleaning a defined area shall no longer be given effect.

 The full text of Arbitrator Crump’s award can be found here.

Monday, July 9, 2012

Just Cause is as defined by the Arbitrator

A judge in the Eastern District of Pennsylvania has rejected a medical center’s efforts to vacate an arbitration award as contrary to the “law of the shop.” Crozer-Chester Medical Center v. Crozer-Chester Nurses Association. Crozer-Chester Medical Center had terminated Grievant for her failure to use its wireless system that records patients’ vital signs and transmits them to all nurses working on the floor. Grievant had failed to resume the monitor after taking the patient for testing. Shortly thereafter, the patient stopped breathing and subsequently died. While the failure to resume the monitoring equipment did not cause the patient’s death it did prevent the patient’s cardiologist from ascertaining the precise cause of death. The medical center dismissed the employee.

The applicable cba provided that the medical center could discipline employees for just cause and also indicated that disciplinary action is “usually, but not necessarily, progressive in nature.”

The arbitrator concluded that both Crozer and the Union agreed there was “cause” since the Grievant did not reactivate the monitoring equipment as she was supposed to do. However, the remaining issue was whether the dismissal was “just.” The term “just cause” was not defined in the contract and the arbitrator rephrased the issue as whether the dismissal was proportionate in light of the nature of the infraction and the Grievant’s past record. Concluding that it was not, the Arbitrator reduced the discipline to a five day suspension.

In seeking to vacate the award, the Medical Center argued, inter alia, that the arbitrator had imposed his own heightened standard of “deliberate insubordination” for the agreed upon just cause standard, and that since the Grievant had been suspended within the past twelve months the proper level of discipline was termination. It maintained that the arbitrator had violated the “law of the shop”, i.e. the Medical Center’s normal employer disciplinary practices, in modifying the discipline.

Rejecting these arguments the Court noted:

The CBA does not define the phrase “just cause.” The fact that Crozer disagrees with the Arbitrator’s interpretation is “not grounds for vacating the decision.” …Crozer could have defined “just cause” specifically in the CBA or negotiated for a definition of “just cause,” but it did not.

The court also rejected Crozer’s law of the shop claim, noting “if the ‘law of the shop’ foreclosed nothing short of termination in this case, appealing to an impartial arbitrator to determine if Crozer discharged the Grievant for ‘just cause’ would have been a pointless exercise”

The Court granted the Union’s cross motion to enforce the award.

Friday, July 6, 2012

Labor Arbitration in the News

Termination of police officer for excessive force reduced to written reprimand

Arbitrator Edward Valverde has issued an award sustaining, in large part, the grievance of an Owasso, OK police officer who had been terminated for excessive force. While concluding that the evidence did establish “unreasonable and unnecessary force”, the arbitrator found that the City had not established “excessive” force. He noted “in evaluating each instance , the arbitrator finds the level of misconduct engaged in falls short of the case law standard for finding excessive force for, in each instance there was no evidence that although the force he used was unreasonable or unnecessary [Grievant] did not cause any injury to Citizen X.” Taking into consideration the officer’s prior demonstrated superior performance, and the Owasso Police Department’s previous “tolerance in meting out discipline when it comes to officer misconduct” the arbitrator concluded the discipline should be reduced to a written reprimand. The Tulsa World discusses the award, Arbitrator reduces Owasso officer's firing to a written reprimand, and  the award is available here.
APWU wins one, loses one
Arbitrator Shyman Das has issued an award addressing two grievance arising from the APWU/Postal Service “Non-Traditional Full-Time Duty Assignments” Memorandum of Understanding. Arbitrator Das upheld the Union’s grievance concerning the retreat rights of excessed employees, but, in the “unique circumstances” of the case, concluded that the Postal Service did not violate the agreement concerning the conversion of certain employees to nontraditional full time duty assignments. Arbitrator Das’ award can be found at the APWU website here.
California Supreme Court determines courts cannot compel arbitration if the issue conflicts with the Education Code
In United Teachers of Los Angeles v. Los Angeles Unified School District the Court refused to compel arbitration of a grievance concerning the conversion of an existing public school to a charter school. The Supreme Court reversed a lower court’s decision that had compelled arbitration after finding that there was a valid arbitration agreement that had not been waived. While ultimately remanding the case for further analysis of the precise contours of the union’s grievance, the Court held that the relevant statute precluded contractual restrictions on conversions to charter schools and any attempt to arbitrate such a restriction was not subject to arbitration as a matter of law.
Illinois State Workers wage dispute referred back to arbitration
A Cook County judge has referred to an arbitrator AFSCME’s pay raise claim. The Governor claims that the legislature did not appropriate sufficient funds to pay for the rises called for in the labor agreement. While agreeing with the Governor that he cannot pay for the raises if money has not been appropriated he referred to an arbitrator for additional fact finding on the question of whether the state doesn’t have money for the raises. Judge punts on Illinois state worker pay raises, sends back to arbitration

Monday, July 2, 2012

Teachers win arbitration over NYC school closings

Arbitrator Scott Buchheit has issued an award, with an opinion to follow, concluding that the City of New York violated its contracts with the United Federation of Teachers and the Council of School Supervisors in connection with its plan to close and reopen 24 schools. In accord with his finding the arbitrator ordered the remedy the parties had stipulated should a violation be found. The City has stated it intends to appeal the arbitrator’s award. The New York Times has an article about the decision, Mediator Halts City’s Plan to Overhaul 24 Schools, and links to the award here. The teachers at the closing schools will be given the opportunity to stay at their current schools, even if the school changes names.


GothamSchools links to Arbitrator Bucheit's Opinion here.