Friday, November 30, 2012

City succeeds in setting aside award it won

The Rhode Island Laborers' District Council, Local 1033 filed a grievance, asserting that the City of Providence had violated a "stipulated award" calling for minimum staffing levels for the City's Department of Communications Police Control Center. The arbitrator concluded that while the City had in fact missed the staffing level for a period of twenty minutes, the violation was de minimis and denied the Union's grievance. Despite prevailing on the grievance, the City filed suit to set aside the award on the basis that the dispute was not subject to arbitration under the cba.

The cba provided for arbitration of disputes arising "out of the provisions of the agreement" and further provided that the contract was the "entire agreement and complete understanding" between the parties, and that the arbitrator had no authority to add to the agreement. While the parties had entered into new cba's ten times since the "stipulated award", the contract had never been modified to incorporate or reference the terms of that award. The Court described the issue to be decided as :

whether a dispute relating to a side agreement stipulated to by the parties in 1993, but never referenced by or physically incorporated into ten subsequent CBAs spanning over seventeen years, is arbitrable under the CBA in effect at the time the Union's grievance arose in 2011

In reaching its decision, the Rhode Island Superior Court in Providence first determined that the stipulated award should be most appropriately characterized as an agreement between the parties, rather than an arbitration award. It noted that the award made no reference to any contractual provision it was purporting to interpret and there had been no hearing on the merits of the underlying grievance. Nor did a subsequent court enforcement of the stipulated award convert it into an arbitration decision.

 The court then proceeded to analyze the substantive arbitrability of side or settlement agreements. After an extensive review of the case law reflecting a split in the circuits , and after noting that the issue appeared to be one of first impression in Rhode Island, the Court determined that the appropriate test was whether the agreement is "collateral" to the cba, i.e if the side agreement is collateral to the cba it is not subject to the cba's arbitration provision.

Applying this test, the Court concluded that the stipulated award was collateral, noting in particular the absence of any reference in the award to the cba, the absence of any revealing title such as "Amendment" of "Addendum" and the absence of any inclusion of the award in any subsequent cba.

The Court observed:

Whatever descriptive term is used to identify the 1993 agreement at issue— "stipulated award," or "side agreement," or "settlement agreement"—the inescapable fact remains that this understanding between the parties remained outside the lines, language, and intent expressed within the four corners of CBAs that were re-negotiated ten times, covering a seventeen-year period. The most accurate description of this agreement is that it was an outlier. There is nothing before the Court to suggest otherwise.
The Court also notes that the contract at issue is a municipal contract involving the capital city of this state and, as such, implicates the public interest as well. It is certainly not in the public interest to permit and enforce negotiated side agreements which are allowed to exist in perpetuity, which are shielded from view or examination, and remain unknown except to those who originally negotiated the settlement agreement, until a dispute arises.
Accordingly, the Court vacated the arbitrator's award.
The Court's decision can be found here.

Monday, November 26, 2012

Labor Arbitration in the News

Retiree benefits commitment survived contract expiration

The Maryland Court of Appeals has upheld an arbitrator's award finding that Baltimore County breached its agreement with the Baltimore County Fraternal Order of Police when it increased the retiree health insurance contribution of retired police officers. The Baltimore Sun reports on the decision. State's High Court sides with Balto. Co. police union. The Court found the arbitrator properly concluded the dispute was arbitrable despite the expiration of the collective bargaining agreement, adopting the vested rights analysis of Nodle Bros. and Litton. The Court also decided that in a case such as this, where a decision on arbitrability of a dispute requires consideration of the merits, the arbitrability decision initially lies with the arbitrator, not the courts. The Court's decision can be found here.

Police Officer eligible to return if he can obtain medical clearance

A Canton, Ohio police officer who had been terminated for his actions during a stop has been found eligible for reinstatement if he is medically cleared to return to work. Arbitrator Harry Graham concluded that while the grievant's conduct was admittedly an overreaction to a perceived threat, he was suffering from PTSD and his conduct was "defensible". Canton officer Daniel Harless wins job back. The article links to Arbitrator Graham's award. The officer involved is out on worker's compensation and has applied for a disability pension.

PIP improperly used for discipline

The New York Newspaper Guild prevailed in an arbitration challenging the use of performance improvement plans as a basis for discipline by Thomson Reuters. According to their report, Guild wins challenge to PIP use in discipline at Thomson Reuters, Arbitrator Carol Wittenberg determined that the use of these plans was inconsistent with a contractual commitment that performance management programs were not to be used in connection with discipline of employees. The Arbitrator observed that PIPs were supposed to be a positive tool for providing employees for feedback, not a basis for discipline or discharge of an employee.

Arbitrator challenged for ordering reinstatement to a different bargaining unit

According to a report in the Alton, Ill. Telegraph, a Madison County Circuit Court judge has remanded to the arbitrator a dispute arising from the Arbitrator's decision to reinstate a terminated police officer to a position as a jailer, a position she previously held but which was represented by a different union. Arbitrator must decide fired cop's fate. Arbitrator Steven Briggs had ruled that the officer's termination was not for just cause but apparently felt her effectiveness as a police officer had been compromised. Accordingly he ordered her reinstatement to a previously held City position.

Monday, November 19, 2012

Professor Drummonds on the public policy exception to enforcement of arbitration awards

Professor Henry Drummonds has written an article analyzing the current status of the public policy exception to the enforcement of arbitration awards. He summarizes the article:

This article argues that labor union advocates, management representatives, arbitrators, and reviewing courts and labor boards sometimes misconstrue the public policy exception. Union representatives often interpret the exception too narrowly, effectively denying its existence; conversely, management lawyers often attempt to use this narrow exception to excuse a failure to prove misconduct by, or the incompetence of, the employee. For their part, arbitrators sometimes fail to give the exception proper weight in their consideration of remedies. Although arbitrators properly exercise broad remedial discretion, nothing requires a rote award of reinstatement, as distinct from other forms of relief where a contract violation is found. Arbitrators should consider a variety of other remedies including, in appropriate cases, front pay for a reasonable time in lieu of reinstatement. (footnotes omitted).

The article was triggered in part by the controversy surrounding the arbitration award reinstating Portland police officer Ron Frashour (addressed herehere, and here).

Professor Drummonds discusses the current law in both the private and public sector concerning the public policy exception to enforcement of awards, and distills  "Seven Principles"  from the case law.

The article, The Public Policy Exception to Labor Arbitration Award Enforcement: A Path Through the Bramble Bush, can be found on the Social Science Research Network (SSRN)  here.

Friday, November 16, 2012

Arbitrator orders police officer reinstated

Arbitrator Richard Boulanger has upheld a grievance filed on behalf of a police officer for the Town of Salisbury, Mass. who had been terminated for allegedly studying for the bar exam while on duty and for what the Town claimed was the falsification of his credentials in connection with an Academy application.

The former police chief testified that he had given the officer permission to study while on duty, but grievant maintained he had nevertheless taken vacation and compensatory time to study and had not studied on duty. The arbitrator noted the absence of any "physical evidence" that the officer had used duty time to study, and rejected the Town's reliance on a claimed reduction in productivity prior to the exam. The arbitrator noted that the Town's review of productivity had not factored in the reduction in productivity caused by the vacation and comp time.

The claimed falsification of credentials arose from the former Chief's designation of grievant as "Chief of Detectives", a title not part of the official structure. The arbitrator noted that grievant had questioned the appropriateness of the title, and also raised the issue with the Academy. Nevertheless, Grievant was assured that use of the title was appropriate. Rejecting the Town's justification the Arbitrator observed:

The Town places heavy reliance on the grievant's admission ...that he was not Chief of Detectives, and yet allowed Chief L'Esperance to designate him as Chief of Detectives on his Justification Letter and curriculum vitae.... Implicit in the Town's falsification allegation against the grievant is the notion that the grievant could have and should have stopped Chief L'Esperance from using the Chief of Detectives rank on his curriculum vitae. Based on the Police Department's paramilitary chain of command structure with Chief L'Esperance as the ranking officer, it is not likely that the grievant could have blocked Chief L'Esperance's use of the Chief of Detectives designation.

The arbitrator also rejected a claim that the officer had falsely claimed he had not previously been disciplined, noting that while he had been previously terminated as a Reserve Intermittent Police Officer, that termination had been reversed and no record of discipline existed in his official file.

Arbitrator Boulanger's award can be found here.

Monday, November 12, 2012

Arbitrator finds Boeing improperly limited bargaining unit

The Society of Professional Engineering Employees in Aerospace challenged the actions of Boeing in limiting the extension of its cba to certain employees at its Edwards Air Force Base and Palmdale, California locations. Employees had initially been temporarily assigned to these locations from Seattle, where the Union was recognized as bargaining representative. At a later point these temporary assignments were made permanent and Boeing and the Union entered into an agreement extending recognition for employees "assigned to" these locations. Boeing also acquired the aerospace interests of Rockwell International, and merged with McDonnell Douglas, both of which had operations at these locations.

While initially keeping the operations of the former Rockwell and McDonnell Douglas operation separate, Boeing subsequently integrated these operations with existing Boeing operations in a new organization. While the heritage Rockwell and Boeing employees were grandfathered in their non represented status, a dispute arose concerning the extension of Union recognition to other employees placed in what the Union claimed were bargaining unit positions.

Boeing challenged the Union's efforts to arbitrate the dispute, asserting that the grievance was untimely. Rejecting this argument, Arbitrator Michael Beck concluded that the violation alleged was a continuing one. Arbitrator Beck also rejected Boeing's claim that the demand for arbitration was not timely filed. Noting the numerous discussions between the parties concerning the grievance, an action by the Union to compel arbitration, and the absence of earlier statements by Boeing challenging the timeliness of a demand, the Arbitrator found that Boeing "has waived the right to invoke timeliness as a defense to the Union's demand for arbitration."

Turning to the merits, the Arbitrator concluded that Boeing was collaterally estopped on the unit placement issue by a prior decision of an NLRB Regional Director (here) rejecting a request by Boeing to clarify the bargaining unit to exclude engineers and technicians working at Edwards/Palmdale.

He further ordered Boeing to make whole employees who suffered losses by not being covered by the cba, and to make whole the Union for lost dues.

SPEEA links to the award here.

Friday, November 9, 2012

Arbitrator finds firefighter minimum staffing grievance not subject to arbitration

The contract between the City of Pawtucket, Rhode Island and the Pawtucket Firefighters union called for a minimum staffing level of 30 firefighters on duty at all times. Because of fiscal constraints, the City unilaterally reduced the agreed upon staffing levels "for overtime purposes only"; i.e. it would not utilize overtime to bring the staffing to the contractually called for minimum. It also reduced the deployment of firefighting equipment below the level called for by the contract. The Union grieved these actions and sought to arbitrate the dispute. The City challenged the arbitrability of the grievance, asserting that the deployment of particular numbers of fire apparatus  and level of service decisions involved matters of "inherent management prerogative" and "entrepreneurial control", neither of which is appropriate for collective bargaining. The Union maintained that the City's actions involved mandatory subjects of bargaining and breached the clear and unambiguous language of the collective bargaining agreement.

Arbitrator Marc Greenbaum found the Union's grievance "not substantively arbitrable".  Arbitrator Greenbaum observed:

In what seems like ancient history, the role of the arbitrator was understood to be limited to contractual interpretation. The arbitrator’s expertise was in the "law of the shop", not external law. The previously impermeable barrier between contact and law has, however, been eroded by numerous factors. The increasing regulation of individual employment rights has poked holes in the barrier. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). A similar result has flowed from judicial decisions deeming issues routinely bargained in the private sector, as outside the scope of public sector collective bargaining and arbitration.

While rejecting the City's arguments that the language of the contract could be interpreted as not requiring the City to maintain minimum levels of equipment and personnel, the Arbitrator concluded that "Rhode Island courts would find that the promises contained in Article XVI of the Agreement cannot be enforced in the arbitral forum." Whether called matters of entrepreneurial control, or inherent management prerogative, the Arbitrator noted that Rhode Island courts had limited a public employer's ability to contract away certain discretionary management decisions.

The Arbitrator recognized that the Union and its members may feel cheated "by a result that effectively renders a contract provision that was freely negotiated with the City unenforceable in arbitration,"  but determined that the judicial decisions trump the collective bargaining process.

Ethan Shorey reports on the decision for the Valley Breeze, Arbitrator rules for the city on minimum fire manning and links to the Arbitrator's award.

Monday, November 5, 2012

Teacher Re-Staffing Procedure Subject to Arbitration

The Rhode Island Superior Court has confirmed an award finding that the Providence School Board violated its contract with the Providence Teachers Union when it unilaterally declared that appeals relating to a decision to not invite a teacher back to a transforming school would be limited to "procedural improprieties".

Pursuant to the applicable cba, the Board and the Union were to work collaboratively to implement a Transformation Model for a school designated as "needing improvement" by the Rhode Island Department of Education. The Board and the Union worked together to create a process for teachers wishing to remain at the school. The process called for an initial interview with the principal. If the principal decided not to retain the teacher the teacher would be sent to an interview with a Recommendation Review Team. A teacher not invited back after a RRT interview could appeal that decision to a School Improvement Intervention Team. co-chaired by the Superintendent and the Union President. It was this final appeals process that the Board declared was limited to procedural irregularities.

In response to the Union's grievance, the arbitrator found the grievance arbitrable and the unilateral imposition of the limitation on the appeals process violative of the contract.
The Board sought to set aside this award, arguing that the dispute was not arbitrable in that it involved a "non-delegable duty" closely related to the school's educational mission.
The Superior Court rejected this argument and confirmed the award. It noted:

   the relationship between a decision about the level of process to be afforded a teacher who has not been invited back by a principal and then the RRT in his or her appeal to the SIIT is too remotely related to the essence of the educational mission to be considered a non-delegable duty and thus not arbitrable. ... If this Court were to find the Board's decision to be pursuant to a non-delegable duty, despite its remote relationship with the essence of the educational mission, then it follows that the entire procedure for evaluating teachers at a persistently-lowest achieving school could potentially be considered non-delegable. There would be no encouragement for the Board and the Union to work collaboratively, as they have largely done in this case, to implement the RIDE intervention protocols and provide a method for reforming our state's most needy schools.
The court's decision can be found here.

Friday, November 2, 2012

Arbitrator finds DC Fire Chief retaliated against Union President

Arbitrator (and former NLRB Administrative Law Judge) Leonard Wagman  has upheld a grievance filed by the International Association of Firefighters, Local 36. Arbitrator Wagman summarized the dispute:

Local 36 contends that the Department involuntarily transferred Captain Edward Smith from Rescue Squad 1 to Engine 7 because he engaged in union activity, and thereby violated Article 19, Section A, and Article 2, Section A of the CBA. The Union also argues that the Department's failure to comply with Captain Smiths request for the reason for that transfer violated Article 19, Section B(2) of the CBA. The Department seeks denial of the grievance on the ground that Local 36 has failed to show that union activity motivated the decision to transfer the  Grievant and that the Department has satisfied its burden of providing a written reason to Captain Smith for his involuntary transfer to Engine 7. As set forth below, I find merit in Local 36's contentions.

Arbitrator Wagman rejected the Department's defenses, finding its explanations for the disputed transfer "has gone from evasion to shifting reasons for its conduct."

Concluding that the transfer was in fact undertaken in retaliation for the Captain's union activity the Arbitrator ordered the Department to rescind the transfer and to reinstate him to his former position. links to the award here.