Damages: Collective remedies, lost opportunity, unjust enrichment

In March of 2013, Arbitrator Mathew Franckiewicz determined that Southwest Airlines breached its cba with the Airline Mechanics Fraternal Association when it delayed the start of a fourth line for heavy maintenance of aircraft following its merger with AirTran. Since the arbitration was bifurcated between liability and damages, the parties then proceeded to discuss the remedy for this breach. Their initial positions differed by over 14 million dollars. While the gap was subsequently reduced, they were unable to agree and Arbitrator Franckiewicz was called upon to resolve the issue. Because of the parties' dramatically different approaches to the issue, the Arbitrator limited his opinion to resolving the proper approach to the calculation of damages, leaving it to the parties to then attempt to calculate precise amounts.

The area of greatest dispute was Southwest's potential liability for back pay for the period the start of the fourth line was delayed. Arbitrator Franckiewicz noted initially that the Union was not seeking back pay for the delayed hires, but sought instead a "collective remedy" for individuals on roll when the FAA issued a "single operating certificate". The Union maintained that there had been a collective injury to the bargaining unit and that a collective remedy was therefore appropriate. It relied in part on prior awards in cases involving claims of improper subcontracting, in which damages were paid to the Union for distribution to employees without an individual showing of proof of loss. It maintained further that such a remedy was warranted because the delay undermined job security, damaged the Union's standing and unjustly enriched Southwest, which had continued AirTran's practice of outsourcing maintenance during the period of the delay. The Union sought payment for those individuals who suffered delayed promotions and for the loss of Union dues.

Arbitrator Franckiewicz essentially rejected the Union's claim for a "collective remedy". In doing so he noted that the individuals for whom the Union was seeking relief suffered no harm from the delayed implementation of the fourth line. Observing that "[t]he goal in this case, in any labor arbitration make whole remedy case, is to restore all those affected to the economic position in which they would have been, but for the contract violation", the Arbitrator concluded:

Had the fourth line been implemented as of March 1, 2012, the additional work would not have been performed by experienced Southwest employees on an overtime bases, but by new hires. Thus the class of those injured is not the erstwhile members of the bargaining unit, but those who were outside the bargaining unit as of March 1, 2012. This is a critical distinction between the current case, and the subcontracting cases cited by the Union.

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Under the Union’s approach, some 80 percent of the total payout would be occasioned by wages in respect of additional bodies — new hires — but this money would not be paid to them but to “old” employees, whose earnings, in most cases would not have increased, and did not increase, as a result of the fourth line implementation, whether earlier or later.

He also found no evidence to support the Union's claim of "lost opportunity" for bargaining unit members, and, while employees may have felt some insecurity, no employee was laid off or suffered economic harm. Finding the Union's request for damages for lost job security or lost opportunity "comparable to damages in tort for pain and suffering or emotional distress"  the Arbitrator concluded that "these are not customarily redressed in labor arbitration." He similarly rejected the Union's claim of unjust enrichment, finding "what the Company gained is immaterial. The question is instead what did the Union or the bargaining unit lose ...."

However, the Arbitrator did find merit in the Union's claim for lost Union dues, and for back pay for individuals who would have been promoted to lead positions but for the delay in implementation of the fourth line.

AMFA Local 11 discussed the award, Membership Update: 4th Line Damages, and links to the full text here. 

Recent Developments-Teachers

Montana Supreme Court upholds arbitration award

Grievant was employed as a vocational agricultural instructor at the Lame Deer High School. Her employment was suspended and then terminated. She grieved the termination, and Arbitrator Michael D. McDowell denied the grievance, concluding that the School District had good cause to discipline her and that the termination should not be reduced to a lesser form of discipline. Grievant sought to vacate the award, but the District Court upheld the award. Grievant appealed, claiming that the court erred in failing to carefully evaluate the facts found by the arbitrator and that the School District did not have proper cause to terminate her employment. The Montana Supreme Court affirmed the lower court's decision, concluding "The District Court did not abuse its discretion in declining to revisit these issues. Requiring the District Court to conduct its own evidentiary hearing on an issue previously submitted to and determined in binding arbitration would undermine the finality and expediency provided by arbitration." The Court's decision can be found here.

Court enjoins arbitration on placement of  "excessed" teacher

The cba between Board of Education of Valhalla, NY and the Valhalla Teachers Association provides that where a teacher's position has been excessed and another position becomes available the Board must appoint that teacher to the position if they are certified in the teaching area in the available position. A dispute arose after a teacher had been excessed and sought to be placed in a position for which the Union claimed she had been certified. The grievance was not resolved and the Association sought arbitration. The Board went to court seeking a permanent stay of the arbitration, arguing that the cba provision conflicted with public policy and the mandates of the Education Law. The trial court denied the Board's request, and the case was appealed. The Appellate Division has reversed the lower court and enjoined the arbitration. The court determined "Whether a prospective candidate is possessed of qualifications 'is a responsibility of the type that may not be bargained away, as it is central to the maintenance of adequate standards in the classroom'. ... The CBA, in effect, divests the Board of its discretion by mandating automatic appointment of certified teachers without inquiry into any additional qualifications the Board may have prescribed. This discretion may not be bargained away." The Court's decision can be found here.

Interest on back pay award not against public policy

Relying in part on language in the cba between the Hawaii Department of Education and the Hawaii State Teachers Association, Arbitrator Walter Ikeda awarded interest on a back pay award. The cba provided "The arbitrator may award back pay to compensate the teacher wholly or partially for any salary lost." While a lower court vacated the award of interest, the Hawaii Court of Appeals has reversed that decision and confirmed the award of interest on the back pay. Rejecting the State's claim that the arbitrator had exceeded his powers, the Court observed:

The Arbitrator was expressly authorized to award "back pay to compensate the teacher wholly ... for any salary lost." He interpreted this provision to allow interest for the time [Grievant] was without pay. Even if he incorrectly construed the agreement or misinterpreted applicable law, he acted within his power to interpret the agreement and fashion a remedy in accordance with his interpretation.

The court rejected the State's contention that the award was contrary to public policy. The Court's decision can be found here.

Recent Developments- Law Enforcement

Arbitrator upholds termination of police officer for off duty discharge of weapon and lying

Arbitrator Andrea Mitau Kircher has upheld the termination of a St. Paul MN police officer who had been accused of firing a number of shots from his weapon into a fire pit while off duty and admittedly inebriated. During the investigation of the incident he also admittedly falsely told investigators that he was shooting blanks. While the officer subsequently admitted the falsification, Arbitrator Kircher concluded that the City had established just cause for the termination despite the absence of any previous discipline. She noted "police officers are held to a high standard of conduct, even off-duty. By discharging 10 rounds of live ammunition in his backyard and lying about it to his investigating superiors, the Grievant committed a violation of criminal law, created a potentially dangerous situation, and adversely affected his reputation for honesty and the public image he was sworn to uphold". Arbitrator Kircher's award can be found here.

Court overturns arbitrator, finds reinstatement contrary to public policy

According to news reports, a Massachusetts Superior Court judge has set aside the award of Arbitrator Arnold Marrow reinstating a former Swansea, MA police officer. The officer had been dismissed for a variety of alleged infractions, including separate incidents of driving under the influence of a narcotic, leaving the scene of an accident and obstructing a criminal investigation. The Arbitrator concluded the penalty was more severe than the ninety day suspension given another officer for driving under the influence and as a result reduced the termination to a ninety day suspension. In overturning the award, the Judge concluded "It is impossible for the court to comprehend a rational basis for the arbitrator's decision to reduce [Grievant's] termination to a mere suspension" and found anything other than termination to be contrary to public policy. The Herald News and South Coast Today report on the decision here and here.

Prevailing in arbitration and the "Laurie List"

Two recent articles discuss attempts by police officers who prevailed in arbitration to have their names removed from New Hampshire's "Laurie list", a list maintained to enable authorities to turn over to defense counsel information on police with potential credibility issues. The officers involved in the cases discussed prevailed in arbitration, with arbitrators concluding that the allegations against them were unsupported, but their names nevertheless remained on the list. Fosters.com reports Officer insists his credibility not an issue. The Union Leader reports Judge rules to keep officers on Laurie list.

Arbitrator rejects grievance on Sergeant's pay

Arbitrator Margaret Nancy Johnson has denied a grievance filed by FOP against the City of Chillicothe, OH. The grievance involved a dispute concerning the proper interpretation of a newly negotiated provision of the cba concerning compensation of police sergeants. In essence, the dispute turned on whether advancement to the next step on the pay schedule for a sergeant would be determined by their start date with the Department or the date of their promotion to sergeant. Rejecting the claim of the FOP that the language of the cba was unambiguous, the Arbitrator relied on bargaining history, interpretation of other provisions of the agreement, and "principles of contract interpretation" to conclude that the relevant date was the date of the officer's promotion to the rank of sergeant. The Chillicothe Gazette reports on the dispute here, and links to the award here.

Several recent decisions

Termination of Child Abuse hotline worker overturned.

Arbitrator Kathy Eisenmenger has overturned the termination of a child services hotline worker. The grievant had been terminated for allegedly failing to properly gather sufficient information concerning a report of child abuse. Based on the information received, grievant categorized the call as a Priority 2, calling for a response within 24 hours, rather than a category one, calling for an immediate response. Less than 24 hours later, the child who was the subject of the complaint was in a coma and subsequently died. The child's mother and stepfather now face child abuse and murder charges. Rejecting the employer's claims against grievant, Arbitrator Eisenmenger found no proof that grievant had violated the employer's policies on categorizing reports of abuse, and further found no causal connection between the grievant's actions and the child's death. In a supplemental award the Arbitrator also rejected the employer's claim that reinstatement of grievant would violated public policy.Noting that she had found no evidence of negligence on the part of grievant, she found application of the public policy defense had "no application" to this case. The Las Vegas Review- Journal reports on the award here, and links to Arbitrator Eisenmenger's award here.

No Boys Market Injunction to stop increased health care costs

The District Court in New Jersey has denied a request for an  injunction pending arbitration sought by 1199 SEIU Healthcare Workers East. The dispute involved a successorship claim that was scheduled for arbitration. The court concluded that the absence of evidence of irreparable harm warranted denial of the request. The Court noted "Although the Union raised a significant issue regarding the anticipated increase in the cost of employees' health benefits, it failed to substantiate its claim that the increased cost would force some employees to forgo health coverage altogether. ...  The Union's failure to demonstrate that any of its members would actually lose their benefits renders its claim of irreparable harm speculative." The court's decision can be found here.

Court rejects efforts to compel arbitration of claimed breach of oral agreement

The  District Court for the Central District of California has dismissed a complaint filed  by Hospital of Barstow seeking specific performance of an alleged oral agreement that disputes regarding the negotiation of a cba would be resolved by private arbitration rather than by the NLRB. The Hospital alleged that it had entered into an oral agreement with the California Nurses Association governing the Union's organizing efforts and the negotiation of an initial cba. The Hospital also alleged that the parties had engaged in private arbitration of disputes pursuant to the agreement. The Union., however, subsequently broke off negotiations and filed an unfair labor practice charge with the NLRB claiming bad faith bargaining. The Hospital maintained that this was in violation of its agreement. Rejecting this position the Court concluded that, assuming that it otherwise had jurisdiction to compel arbitration based on an oral agreement, the Hospital had failed to allege a factual basis for its claim. It further determined that any claim of waiver of the right to file charges with the NLRB was unenforceable. The Court's decision can be found here.

Transfer of bargaining unit work, an arbitrator's award and a "judicial clarification"

 The cba between New England Health Care Employees Union, District 1199 and Women and Infant's Hospital provided that all bargaining unit work would be performed by employees covered by the cba. It defined bargaining unit work as work "presently and routinely performed" by bargaining unit members. Following the acquisition of the Hospital by Care New England, a new telephone system was introduced. The new system was staffed by non unit  employees, and the employees formerly performing telephone related duties were reassigned. The Union grieved and ultimately arbitrated this assignment of work, claiming that it violated the cba.

Arbitrator Tim Bornstein concluded that the Hospital transferred approximately 25% of the work of the bargaining unit employees to a help desk staffed by non unit employees. He also determined that some of the tasks formerly performed by unit employees had become obsolete or had been automated or eliminated. Despite his finding that 25% of the work had been transferred, Arbitrator Bornstein denied the grievance, finding that the transferred work "is not the same work that is 'presently and routinely performed" by W&I employees. It is technologically different....There is no evidence--nor does the Union contend-- that the transfer of work to CNE's Help Desk was not made for reasons of business efficien[cy]." He further found that the management's rights clause, and the doctrine of residual rights, privileged the Hospital to make changes in its operation for legitimate, non-discriminatory reasons.

The Union sought to set aside the Award, and the District Court in Rhode Island has refused, instead granting the Hospital's request for confirmation. The court did so despite what it considered the Arbitrator's "slightly vague" and possibly ambiguous  discussion of the transfer of work issue. In confirming the award, the Court noted the deferential standard of review of arbitration awards, even when there was ambiguity in the award. The court also noted that the grieving employees had not suffered any adverse consequences as a result of the Hospital's actions.

However, observing that the parties would have an ongoing relationship, the Court did enter what it referred to as a "judicial clarification":

The workplace changes imposed by the Hospital in connection with the telecommunications system upgrade are described by the Arbitrator as "legitimate," "non-discriminatory" and efficient. Indeed, this Court concurs that the changes are reasonable. The issue, however, is not whether or not these changes are legitimate, reasonable, or made in the interest of business efficiency. Instead, the issue is whether or not these changes comport with Article XXX of the Contract. To the extent that the bargaining unit employees' work has stayed the same, or has been discontinued because it's obsolete, there is no contract violation. On the other hand, if specific tasks that were performed "presently" (that is, at the time of the filing of the grievance) and "routinely" by the bargaining unit employees have been transferred to non-bargaining unit employees, then Article XXX has been violated. The limitations that are imposed on the Hospital by Article XXX must be clear to both parties going forward.


 The Court's decision can be found here.

Denial of unescorted access to nuclear facility found to be an arbitrable dispute

Grievant, an employee of MIT and a member of the bargaining unit represented by the Research, Development and Technical Employees Union, received an oral warning for allegedly removing mail from another employees mailbox without authorization. In addition, her authorization for unescorted access to the facility's nuclear reactor area was revoked. While she continued to perform duties commensurate with her job classification, she was assigned only to areas not requiring unescorted access. The Union pursued a grievance on her behalf, challenging both the warning and the revocation of her authorization for unescorted access. Unable to resolve the dispute in the grievance procedure, the Union sought to arbitrate both issues.

 MIT sought a declaratory judgment that the denial of unescorted access was not an arbitrable dispute, and asked the court to enjoin the union from pursuing the case to arbitration. The Massachusetts District Court did not immediately decide the issue; instead it remanded  the case to the arbitrator for resolution, including resolution of the arbitrability question and stayed the case pending the decision of the arbitrator.

Before the arbitrator, MIT conceded that the question of whether there was just cause for the oral warning, and whether the grievant was "transferred" within the meaning of the contract and if so whether it was for just cause were appropriate subjects for arbitration. It maintained, however, that the initial decision to revoke grievant's right of unescorted access, and the subsequent decision not to reinstate it, were not arbitrable issues. The arbitrator rejected MIT's position, finding the dispute arbitrable, and MIT then returned to court and renewed its argument on arbitrability.

The court summarized the arbitrator's award:

The Arbitrator concluded that while the language of the arbitration clause only permits arbitration of grievances "regarding the interpretation or application of [the] Agreement," and the fact that the Agreement is silent on the unescorted access issue seems to counsel against arbitrability of this issue in view of the arbitration clause's language, ... the revocation of unescorted access under the circumstances of this case amounted to discipline and thus implicated Article XX of the Agreement, .... As additional ground for his reasoning, the Arbitrator considered the Order's language and opined that the denial of unescorted access "must be for specific and valid and reliable reason(s)," and the determination of whether [grievant] showed a "pattern of trustworthy and reliable behavior" necessarily relied on "an investigation of the events leading up to her removal of access .. . which [could] only take place if this portion of the grievance" was arbitrable. ...Lastly, the Arbitrator reasoned that doubts as to questions of arbitrability should be resolved in favor of arbitration and as the Agreement "contains no provision which prohibits the grievance regarding the denial of access to proceed to arbitration," the issue must be substantively arbitrable.

Noting that the question of substantive arbitrability was a matter for a court to decide, the District Court first concluded that the presumption of arbitrability applied here in light of what it considered to be a broad arbitration clause. It noted that the"absence of a specific provision does not necessarily equate to an intentional exclusion" of any particular dispute from arbitration, and in the absence of evidence of intentional exclusion of the issue from arbitration the dispute was properly before the arbitrator.

The court then turned to MIT's contention that decisions concerning the denial of unescorted access to nuclear facilities falls outside the scope of arbitration for reasons of public policy. While noting that there was some support for MIT's position, it concluded that it agreed with the decision of the Seventh Circuit (discussed here)  that the applicable regulations did not prohibit an arbitrator from deciding this issue. It noted:

 While it is arguably in the public interest for a publicly accountable judiciary to review site access disputes for our nuclear facilities, it is not in fact the Commission's or Congress's policy or intent to exclude access revocation disputes from private (and largely secret) arbitration. Thus, MIT's policy argument must fail.

The courts decision in Massachusetts Institute of Technology v. Research, Development and Technical Employees Union can be found here.


The Nuclear Regulatory Commission is currently considering a petition to amend its regulations to prohibit "third parties (including arbitrators)" from restoring or granting unescorted access. Ineligible Access to Nuke Plants Questioned.

Seventh Circuit: Arbitrator's award ordering company to pay Local Union President and Benefits Representative violates public policy

Titan Tire purchased a tire manufacturing facility in late 2005. It subsequently entered into a cba with the Steelworkers. Until October of 2008, Titan paid the full union salaries of the Local's President and Benefits Representative. Starting in October, however, Titan ceased making these payments, claiming that they were in violation of Section 302(a) of the Labor Management Relations Act. Titan premised its claim on the fact that the individuals holding these positions did not work full time for it and were not subject to its control, and because the Local also represented employees of the Freeport School District. The Union filed a grievance which was sustained by an arbitrator. A District Court confirmed the award, and Titan appealed. The Seventh Circuit has now reversed and issued an extensive opinion discussing the Section 302 issue.

The Court summarized the Arbitrator's award:

After the hearing, the arbitrator issued an opinion sustaining the union's grievance and ordered Titan to reinstate direct salary payments to the President and Benefit Representative. The arbitrator reasoned that Titan's practice of directly paying the President's and Benefit Representative's salaries for two and a half years was "enough time to invoke the doctrine of past practice." The arbitrator further concluded that such payments were "by reason of their former employment" with Titan and "in accordance with the collective bargaining agreement" and as such were legal under Section 302(c). The arbitrator added that "[t]he effect of the bargained-for payment is significant," totaling nearly $80,000 annually for the President and about $50,000 for the Benefit Representative. And that "[t]his savings of expense could result in either lower Union dues or at least no raise in Union dues," and thus "[t]he payment by the Company of the President's and Benefit Representative's salaries is therefore a direct benefit to the Union membership."

Noting the limited scope of review of arbitrator's awards, and its obligation to accept the facts as found by the arbitrator, the Court nevertheless found the award contrary to the statute and therefore violative of public policy. The Court reviewed its own prior decisions in this area, and decisions of the Third, Second and Ninth Circuits addressing similar claims, with differing results. It noted that preventing bribery is not the sole purpose of the statute's prohibition of an employer providing  "money or other things of value" to representatives of its employees. It further noted that the prohibition also served the statute's goal of preventing conflict of interest. The Court was careful to explain that its decision in no way called into question no-docking clauses, but determined that the facts here went well beyond that exception. The Court concluded:

 The arbitrator found that the labor agreements between Titan and the union required Titan to pay the full-time salaries of Local 745's President and Benefit Representative. However, such an agreement violates the plain language of Section 302(a) of the LMRA and is not exempt by Section 302(c) because the President's and Benefit Representative's full-time salaries are not vested rights earned "by reason of" their former employment at Titan. Rather, the President and Benefit Representative earn their current salaries because of their service to Local 745 members. Because the arbitrator's order to Titan to reinstate direct salary payments to the President and Benefit Representative would require Titan to violate Section 302, its decision must be vacated. For these and the forgoing reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.

The Court's opinion in Titan Tire Corp. v. United Steel Workers can be found here.

"Brutal" hazing didn't provide just cause for termination when others involved weren't disciplined

The State of Iowa terminated the employment of a State Trooper following receipt of a report of hazing during police academy basic training class four years earlier.

Grievant was part of an Academy basic training class between June and October of 2008. As squad leader, grievant was assigned to assist another recruit who was having difficulties with the training. Grievant did not have a good relationship with the other recruit and believed he was unsuited for the training. He also believed the Academy would not dismiss the other recruit because his father was a trooper. Grievant engaged in what the other officer described as a pattern of threats and harassment. Grievant admitted he was attempting to induce the officer to quit. Grievant also engaged in "bonding' the other recruit. This involved handcuffing him to his bunk, pulling down his pants and rubbing Bond powder onto his "butt cheeks." While he did this, grievant called over other recruits to observe. It was undisputed that grievant was advised to stop verbally abusing the other recruit and that he did so, but there was conflicting testimony about whether the Academy leaders were aware of the physical interaction. Both individuals ultimately graduated.

 Approximately four years later, grievant met with a captain of the state police to report what had taken place during basic training. The captain initiated an investigation of what he described as a "sexual assault." As a result of that investigation, the employment of grievant and a second student who was deemed to have participated in the "bonding" was terminated. Other individuals who had observed the incident were questioned but not disciplined. The union pursued the dispute to arbitration, arguing that grievant had  been disciplined  at the time of the incident and that further discipline constituted double jeopardy. They also argued that grievant had been "set up" by Academy staff to cause the recruit to resign. The union claimed that, in any case, the discharge was not for just cause since the investigation took too long, the incident in issue was isolated, and that there was no showing of any impact of the incident on grievant's ability to perform his job.

Arbitrator Harvey Nathan rejected most of these contentions. He found no double jeopardy, noting that the warning grievant received while at the Academy "was directed to harassment generally, and specifically to the audacious verbal abuse...." He also found no basis to conclude that the Academy staff bore any responsibility for grievant's "loss of judgment" on the day in issue. However hid did conclude that if  the Academy had  more closely monitored activities in the barracks the  incident could potentially have been avoided.  Moreover, had the incident been reported promptly corrective action could have been taken immediately. Given the way the issue came to light, however, "there was little that could be done other than terminate the grievant. It was not the length of time of the investigation that prejudiced [grievant]. It was the Academy's failure to be on top of misbehavior in the barracks."

 While noting "there can be no minimizing of the brutal attack on a weak and innocent bunkmate," the Arbitrator ordered the Department to reinstate grievant with back pay from the date of the award.  Arbitrator Nathan concluded:

     While the grievant was the instigator of the assault, it would not have happened as it did if other recruits did not cooperate. Had the staff learned of what happened, either from [victim] or others, an investigation could have been opened as it was almost four years later. While obviously not as severe as forcibly stripping [victim] and pouring a substance on a private part of his body, standing there and cheering on the perpetrators was aiding and abetting the assault. There were many more people involved in this incident than just [grievant]. Someone there should questioned [sic] what was being done. The failure to intervene warranted discipline of several other recruits. Surely, the Academy needs to teach recruits that Troopers do not simply turn away when they see a colleague do something intolerable, let alone join forces with the miscreant after the hazing began.
     The defect in the Department's case was its failure to explore the incident after the meeting with [grievant] with the thoroughness that occurred in 2012. And with regard to that investigation, the Department should have disciplined all of the recruits, now Troopers, who directly or indirectly, were involved in the bonding incident. While this would have been difficult, once it decided to terminate [grievant] it was a violation of the "just cause" principle to ignore the several others who were involved.

Arbitrator Nathan's award (13-GA-0208 - State of Iowa (Dept. of Public Safety 10/5/2013) can be found here.

Note: According to a report in the Des Moines Register, here, the termination of the second student allegedly involved in the incident has been overturned by Arbitrator Clair Brooks.

Seniority, past practice, vacation selection and a police department reorganization

Arbitrator Harry MacLean has issued an award rejecting a grievance filed by the Denver Police Protective Association claiming that the City of Denver violated officers' seniority rights when it changed the unit in which officers selected vacations.

Prior to the change, the Denver Police Department had been divided into six districts. Officers selected their shift and regular days off on the basis of district wide seniority every 28 days. Once a year officers selected their vacation for the coming year, also on a district wide basis. Under the direction of a new Chief, the police department reorganized the districts into twelve teams. Each team had a regular shift and set days off for a twelve month period. The officers in each district bid by seniority onto  a team, and vacations were selected based on seniority within the team rather than within the district. The Union grieved the change, claiming that it violated the terms of its bargaining agreement. The contract provided:

Throughout the department, voting in each Bureau/District shall be by seniority in rank. ... Division chiefs may permit voting within individual units subject to the approval of the Deputy Chief of the affected area of Operations or Administration. The Chief of Police may establish exceptions to this rule as he deems necessary for the efficient operations of the department.

The Union maintained that the past practice of the parties had limited the definition of "individual units" to specialized units such as SWAT, and argued that the definition was limited to units as they existed when the most recent contract was adopted. The City, however, pointed to language in its Police Department manual defining a unit as "any number of officers ... regularly grouped together under one head to accomplish a police purpose."

Initially Arbitrator MacLean concluded that the Union had not established that the practice it claimed was "unequivocal", and that the Union had not established that the City had agreed to the limited definition suggested by the Union. The Arbitrator also noted that the City's Charter "is quite clear" in retaining the right to manage certain aspects of the Department. The Charter prohibits bargaining on police department staffing, the number of shifts, and the assignment of work to officers.

Arbitrator MacLean noted:

     [T] City has a right as it sees fit to organize the police department, to staff the police department, and to assign work to police officers. Any provision in the CBA which seeks to limit or restrict these rights is invalid as contrary to Section 9.8.3(C)(ii) of the Charter.

 The Union argued that it was not challenging the right of the City to reorganize the districts into teams, but only the manner in which vacations were selected under the new structure. Arbitrator MacLean determined, however, that the team concept would be "decimated" if officers were allowed to select vacations on a District wide basis. He concluded:

The Chief was clearly acting within the authority reserved to him in the Charter to reorganize the department. The new team models are sound and unquestionably beneficial. The language of the CBA provisions cannot reasonably be read in such a way that it in fact nullifies this otherwise legitimate exercise of managerial authority.

CBS Denver reports on the award DPD Reorganization Upheld, and links to Arbitrator MacLean's award here.

The issue of "nondelegable" rights is discussed in a previous post Arbitration, Management Rights and Public Policy.

Use of confidential patient information in grievance process

Allina Hospital, d/b/a/ St Francis Regional Medical Center, terminated the employment of grievant for the "intentional use and disclosure of patient records containing confidential and protected health information without a permissible business reason...." While processing certain patient records, grievant observed initials on the documents suggesting to her that non-bargaining unit employees might have performed bargaining unit work.  Grievant redacted, at least in part, patient identifying information, made copies of the documents and turned them over to a Union steward. There was no dispute that grievant's purpose was the pursuit of a grievance, but the hospital viewed the nature of that purpose as "neither here nor there." It terminated grievant's employment and the Union (SEIU Healthcare Minnesota) pursued the matter to arbitration.

The hospital presented evidence that it had consistently terminated employees who had improperly accessed patient medical information without a valid business purpose. This included the termination of an employee who accessed her father's medical records, the termination of 32 employees who accessed the medical records of a high profile patient, and the termination of an employee with  more than 30 years of exemplary service. Arbitrators had upheld the hospital's actions in all of these cases. Arbitrator A. Ray McCoy noted, however, that none of those cases addressed the situation raised in this dispute, i.e. "the fact that the conduct giving rise to the employer's discipline of the Grievant was also protected union activity."

Arbitrator McCoy noted that while the hospital presented evidence that it made a thorough review of the facts of this case, and a careful analysis of the conduct and its policies, the analysis proceeded from the erroneous assumption that, according to a hospital witness, "It was a well known fact that union activity was not a legitimate business reason." The hospital also relied on its conclusion that while its policy allowed it to use patient information in the processing of a grievance, the policy made no provision for the Union's use of that information.

Rejecting the position of the hospital, Arbitrator McCoy sustained the grievance and ordered the hospital to reinstate the grievant and make her whole for her losses. He concluded:

          the investigative and deliberative process[es] were fatally flawed and did not comply with the just cause standard called for in the Agreement. Given the specific facts regarding Grievant's conduct in this case, a proper balancing of the competing concerns, policies and rights should have led the employer to conclude that the Grievant had a legitimate business purpose for sharing the four files with her Union steward. A fair investigatory and deliberative process would have at the very least produced a concrete rationale for finding that such a balancing would still have led to the Grievant's termination. Here the Employer[] fails the just cause test because it specifically excluded a most critical fact even before undertaking its' investigation that both characterized and gave meaning to the Grievant's actions. It is only by stripping the very real fact that the Grievant's sole purpose was to pursue a right guaranteed her by the Agreement that one can conclude the Employer behaved properly. Doing so, however, would be in direct contravention of the Parties' Agreement.


Arbitrator McCoy's award can be found here.

Supervisors doing bargaining unit work- Court overturns arbitrator's award

An earlier post,  Plain meaning, conflicting contract terms and supervisors performing bargaining unit work, discussed an award of Arbitrator Linda Klibanow finding the LA Times in violation of its cba. Arbitrator Klibanow concluded that the relevant contract language was ambiguous, and relied, in part, on bargaining history to reach her conclusion that the paper could only have supervisors perform bargaining unit work in "emergency ... or ... non-routine but limited situations...."

The newspaper sought to set aside the award, on the basis that the Arbitrator had exceeded her authority in issuing the award and effectively rewrote the parties' agreement. The District Court has agreed with the Times and has vacated the award.

The dispute in large part turns on the language of the contract's management rights provision. Article II, Section 2.2 of the agreement provides:

Any work that can be assigned to bargaining unit employees may also be assigned or reassigned at any time to be performed by other employees, supervisors or managers or persons outside the bargaining unit at the sole discretion of the Employer. The assignment of work or functions to bargaining unit employees shall not be construed as conferring exclusive jurisdiction over same to either the Union or members of the bargaining unit. The Employer shall not use Section 2.2 for the sole purpose of replacing bargaining unit employees and Employer shall not use Section 2.2 for the sole purpose of avoiding the 'Recall' language under Section 11.6 of this contract.

As noted in the earlier post, Arbitrator Klibanow rejected the paper's position that the language was clear and unambiguous. The Arbitrator found an inconsistency between the employer's "sole discretion" to assign work and the contractual limitations on that discretion. The District Court has rejected that conclusion. Recognizing the limited scope of review of an arbitrator's award, and the arbitrator's authority to interpret the parties cba, the Court nevertheless concluded that, while postured as an interpretation, the award effectively rewrote the parties' agreement:

The Court begins by noting that the Arbitrator's "interpretation" conflicts with the plain language of the CBA. On its face, Section 2.2 provides that Plaintiff LA Times has "sole discretion" to assign supervisors to perform union work. Two provisions appear to narrow that discretion only slightly; Plaintiff LA Times may not assign supervisors for the "sole purpose" of replacing bargaining unit employees, nor may it do so for the "sole purpose" of avoiding recall. The Arbitrator read Section 2.2's apparent broad grant of discretion to Plaintiff LA Times to  prohibit Plaintiff LA Times from exercising any discretion to assign supervisors to perform union work. Instead, the Arbitrator found, Section 2.2 permitted the assignment of supervisors only in a very narrow set of specific circumstances. These circumstances have no basis in the text of the CBA.

The court concluded that this case represented one of those "rare instances" where an arbitrator's interpretation was so implausible that it could not be said to draw its essence from the cba and that by effectively adding "extensive restrictions" on the Times' discretion to assign work the arbitrator improperly rewrote or added to the parties' agreement.
 
The Union's website links to the court's decision in Los Angeles Times Communications v. Graphic Communications Conference Int'l Brotherhood of Teamsters here.

Teacher discipline, "Rubber Rooms" and judicial review

The New York City Board of Education has filed suit against the United Federation of Teachers, alleging that the Union has failed to implement an agreement to increase the number of arbitrators available to hear disputes involving claims of teacher misconduct or incompetence. A copy of the complaint can be found here. The issue arises from an April 2010 agreement between the Board and the UFT designed to expedite the process for arbitral review of such cases and eliminate the infamous "rubber rooms" to which teachers awaiting hearings were assigned. The Board claims that the Union has refused to agree to sufficient new arbitrators and has refused to follow the alternate process for selection of arbitrators when no agreement can be reached.

Two recent cases address issues of discipline for teacher conduct and competence and the scope of judicial review of those decisions.

 The Appellate Division of the New York Supreme Court has recently denied leave to appeal further the denial of an effort to overturn an award of Arbitrator Robert Grey upholding the termination of a New York City teacher. The dispute involved ten specifications (many with subparts) against the teacher. Among the allegation were "neglect of duty, failure to follow procedures and carry out normal duties, insubordination, and incompetent and inefficient service."

After hearing the evidence, Arbitrator Grey dismissed a number of the specifications. However he ultimately found merit to several others and upheld the termination. He concluded that the teacher "was unable to provide a valid educational experience for the students assigned to her classroom"  and that her "classrooms bordered on anarchy and had an unwarranted and unacceptable potential for danger that no student should be required to endure...." .The teacher sought to vacate the arbitrator's award, claiming that the process was biased, that  had been denied due process, that the decision was arbitrary and that the penalty was "shocking to the conscience"

The Supreme Court (the state's trial level court) rejected all of these claims. The court found neither  bias nor the appearance of bias and noted that the record showed the arbitrator "dismissed some of the specifications against [the teacher] because the conduct charged by school officials either did not rise to the level of the specification alleged, or  respondent had not met its burden of establishing [the teacher's] guilt of that charge. The remaining specifications that were not dismissed are well documented in that many of the exhibits that petitioner herself has provided in support of her petition." Among the specifications dismissed were allegations that the teacher had not provided "bell to bell" instruction and an allegation that she had :threatened to pass gas if students continued to converse in class. Supported, however, were allegations that she had failed to effectively manage and control her classroom, failed to maintain a "late log" and what Arbitrator Grey described as the teacher's "repeated failure to implement advice, counsel, instruction and recommendations..." concerning lesson planning , classroom instruction and classroom management.
Arbitrator Grey also rejected the teachers claim of disparate treatment

The court upheld Arbitrator Grey's award, concluding:

     The determination to terminate petitioner from employment is firmly supported by the extensive documentation of her incompetence. Therefore, the penalty imposed does not shock the conscience or one's sense of fairness.
     In view of the forgoing, respondent has met its burden of showing that petitioner does not demonstrate any statutory basis for vacating or modyfyibg the ward, and therefore, failed to state a cause of action. ... Furthermore, respondent has shown the hearing officer's award has a rational basis. Having failed to state a cause of action, respondent's cross motion for the dismissal of the petition is granted.

 The Supreme Court's opinion can be found here. The Appellate Division opinions affirming the decision and denying leave to appeal can be found here and here (p.64).


In contrast, a Supreme Court judge has overturned an award of Arbitrator Alan Berg upholding the termination of a teacher who was found in possession of 20 glassine bags of heroin as he was reporting for jury duty. Arbitrator Berg concluded that the teacher had subjected himself and the Department of Education to widespread ridicule, "compromising his ability to retain the respect of students and thereby throwing away his ability to be an effective teacher...." He noted that the teacher's conduct left the DOE with no way to know if the teacher had brought the same drugs to school.

Judge Manuel Mendez overturned the arbitrator's award, concluding:

Petitioner herein … was charged with Criminal Possession of a Controlled substance in the Seventh Degree 9a Misdemeanor),  and immediately at arraignment was given an Adjournment in Contemplation of Dismissal. After six months the charges were dismissed and the record sealed. The arrest was not for conduct at the school site or involving any of its students. There is no evidence that he as a criminal record, had been arrested before or since this one incident. There is no evidence that this one arrest or the publicity it generated has impaired his ability to reach, or that he has lost the respect of his students, or can be perceived by his students as a responsible adult to whom they pay attention. Petitioner has admitted he has a substance abuse problem; the arrest is a manifestation of that problem; he is receiving treatment for that problem and is progressing in his treatment. Under these facts, termination of employment is unduly harsh, an abuse of discretion and shocking to this court’s sense of fairness.

Judge Mendez's opinion can be found here.

Arbitrator's finding of improper subcontracting sufficient to support award of monetary damages

The United Mine Workers filed a grievance against Consolidated Coal, alleging that the Company had breached its cba by subcontracting certain work which the Union maintained should have been performed by bargaining unit employees. An arbitrator upheld the grievance and ordered Consolidated to pay damages for the violation.  He took the total amount of hours worked by the subcontractor, multiplied it by the cba's hourly rate, and ordered Consolidated to divide it equally and pay it to unit employees "who were available to work during the period of the subcontract work."

Consolidated filed a motion to vacate, arguing that since all bargaining unit employees were performing other jobs when the contracting took place no unit employee suffered any cognizable loss. Relying on the Fourth Circuit's decision in Baltimore Regional Joint Bd. v. Webster Clothes, Inc.,  Consolidated claimed that the award of damages in the absence of economic loss was an improper award of punitive damages and beyond the authority of the arbitrator. The District Court for the Northern District of West Virginia rejected this contention. Consolidated Coal Company v. United Mine Workers of America District 31, et al.. The Court observed that the Company did not claim that the work which had been subcontracted could only be done at a time  when all bargaining unit employees were performing other work. It further noted that the arbitrator had limited the remedy to those employees who were able to work when the contracted project was underway. 

Rejecting the claim that the award was an improper award of punitive damages the Court concluded:

this Court finds that the award was tied to a legally cognizable loss that is measurable in monetary terms. The bargaining unit employees lost a certain number of working hours due to the plaintiff subcontracting out work that based on the CBA, bargaining unit employees were to complete. The arbitrator fashioned an award based on those lost hours, multiplied those hours by the wage provided for in the CBA, and required the award be distributed to those employees who were able to work at the time the floor project was underway. This Court finds that it was within the scope of the arbitrator's authority to make such award. Thus, the award drew its essence from the CBA, as it was compensatory rather than punitive in nature

The Court granted the Union's cross motion for confirmation of the award, but denied its claim for attorney fees, finding that while the Company was unsuccessful its position had "an arguable basis in law."

Failure to provide Loudermill hearing "fatal" to claim of just cause for dismissal

Grievant was employed by Mount Joy (PA) Borough. At approximately 4 a.m.on the morning of November 6, 2010, he and another officer were dispatched to respond to a complainant reporting that his bicycle had been stolen several hours earlier. During the course of their contact, the complainant began acting erratically and, according to both officers, came "charging out" of his front door toward the officers. Grievant used a taser in an attempt to subdue the complainant, and over the course of the next ten minutes used the taser a total of fifteen times against the complainant, who died as he was being transported to the hospital.

Grievant's conduct was investigated by  the  Pennsylvania State Police and the Attorney General's office. The investigations concluded there was no basis for any criminal charges against grievant. The Mount Joy Police Department conducted its own internal investigation and the Detective conducting that investigation concluded that grievant had not used excessive force. Nevertheless, the Chief recommended to the Borough that grievant be dismissed for use of excessive force, and his employment with the Borough was terminated.

After a hearing, Arbitrator William Lowe rejected the allegation of excessive force. Arbitrator Lowe concluded that, taking into account the totality of the circumstances as required by the Borough's Use of Force Policy, the evidence failed to establish that grievant's use of force was excessive.

Arbitrator Lowe also addressed the claim of the Police Association that grievant had been denied due process because he had not been provided with a Loudermill hearing prior to his dismissal. Arbitrator Lowe noted:

The Association provided a prior case decision by Arbitrator Scott Bucheit ... wherein he ruled the discharge was not properly effected in that no Loudermill hearing was extended, and hence, no showing of Just Cause and no due process although, in that case, he reduced the penalty from discharge to a thirty (30) day suspension because of some extenuating factors. In that decision, Burcheit cites several precedent decisions- among them, Arbitrator Walt De Treux's ... arbitration decision in Police Employees of Silver Springs Township and Silver Springs Township .... In that decision De Treux commented,
         

             In and  of itself, the failure to provide contractual due process is fatal to the Employer's       burden of proving just cause for discharge. It does not, however, negate the Employer's right to discipline....I find that the due process violation, while precluding discharge, does not negate the Employer's right to discipline (grievant) in this matter.

Agreeing with the analysis of Arbitrator's Bucheit and De Treux, Arbitrator Lowe found the failure to provide grievant a Loudermill hearing prior to his termination a "fatal error," resulting a in a lack of due process for the grievant.

Finding no due process, together with no just cause for discipline, Arbitrator Lowe ordered grievant reinstated with full seniority and back pay.

Lancasteronline reports on the decision and Arbitrator Lowe's award can be found here.

Union wins reinstatement but challenges Last Chance provision of Award

Grievant was employed as a police officer by the Borough of Fountain Hill, PA. On June 4, 2012 he was involved in an incident with an individual he and another officer had transported to the police station. The individual in custody was intoxicated and exhibited violent mood swings. The second officer was placing the handcuffed individual in a holding cell. While there was disparity in the testimony concerning what took place next, grievant was alleged to have grabbed the individual in custody and forced him to the ground, causing some injury to his mouth. The incident was captured on video, but no audio was recorded. Grievant was dismissed because of alleged excessive use of force. The matter was unresolved in the grievance procedure and ultimately was submitted to Arbitrator Steven Wolf for decision.  Lehigh Valley Ramblings blog links to Arbitrator Wolf's Award here.

Arbitrator Wolf noted that the dispute "illustrates ... the sometimes fine line that Police Officers must observe- namely, the exercise of appropriate force in order either to subdue or maintain safe control of a suspect in custody." Nevertheless, he concluded: "The Borough here argues that, under the circumstances present on June 4, 2012, the grievant crossed that line and exercised excessive force when attempting to render [the prisoner] compliant in the holding area. I agree."

The Arbitrator determined that the grievant's account of the incident was "materially incorrect," and at odds with the video. He concluded:

The totality of the evidence persuades me that the grievant patently exceeded the force reasonably needed to subdue the intoxicated, injured, and handcuffed [prisoner] on June 4, 2012. His Incident Report Form, both by commission and omission, is, in my view, a misrepresentation of the
relevant events. Severe discipline was surely for just cause.

However, noting that grievant had produced three character witnesses, and testified that it had become his lifetime goal to pursue Police work, the Arbitrator concluded that he should be afforded "one final opportunity" to do so. While noting he was not minimizing grievant's "reckless and unprofessional performance" he awarded a "last chance" to demonstrate he was capable of sustaining a career in law enforcement. Accordingly he reinstated him, but concluded that "Any further documented acts of excessive force will result in grievant's termination without recourse to the grievance and arbitration process."

According to a report in Lehighvalleylive.com, the Fountain Hill Police Association has filed a petition with the County Court claiming the Arbitrator's imposition of the "last chance" condition exceeded his jurisdiction by denying grievant a just cause determination for any future acts of excessive force. Arbitrator's controversial decision for fired officer leads to new legal challenge for Fountain Hill.  According to the Union's lawyer, the Arbitrator's Award would leave grievant without any meaningful review of future alleged acts.

The issue of an Arbitrator's conditional reinstatement of a grievant is discussed in a previous post here.

Arbitration, Management Rights and Public Policy

 Lawrence, Mass. Firefighters, Local 146 grieved the actions of the City of Lawrence in laying off a  dispatcher while retaining a mechanic with lesser seniority. The City rejected the grievance, claiming that the layoff of the mechanic would create a safety issue. The dispute was submitted to arbitration, and the arbitrator determined the City had breached the collective bargaining agreement by deviating from its practice of laying off employees in inverse order of seniority.

 The City sought to vacate the award, arguing that management of the fire department rests with the Chief, and "that with this responsibility comes the inherent right to make decisions regarding policy and staffing." The City maintained that this responsibility was particularly important in divisions  like the fire department, whose purpose was public safety. It claimed that the arbitrator exceeded his authority and that the decision invaded the City's "nondelegable" managerial prerogatives and violated public policy by putting the public at a safety risk. The Superior Court rejected these positions and confirmed the award. The Appeals Court has now similarly rejected the City's arguments and affirmed the lower court. City of Lawrence v. Lawrence Firefighters, Local 146, IAFF.

 The Appeals Court held that:

 While the city is correct that a decision to lay off employees is a nondelagable managerial prerogative, ...it is clear that a public employer may negotiate to follow certain procedures when such a decision is implemented, and the question whether the employer has followed these procedures is a matter subject to arbitration. 

The Court also rejected the City's public policy argument, finding "no 'well-defined' or 'dominant' public policy in favor of fire departments retaining mechanics over other department employees."

In contrast, in a decision also issued in August, the Mass Supreme Judicial Court overturned an arbitrator's award finding the City of Boston in violation of a contractual provision restricting the transfer of certain union representatives between stations or assignments.  City of Boston v Boston Superior Officers Association. The Court concluded that  assignment and transfer of officers within the Boston police department "are non delegable statutory powers of the Boston police commissioner ... and, accordingly, ... the grievance arbitrator exceeded his authority in reversing the officer's transfer."

A similar issue has been raised in Alaska, where the State is seeking to set aside an award of Arbitrator Janet Gaunt finding the State violated its cba with the Alaska Correctional Officers by changing the schedules of certain correctional officers from an eighty four hour, 7 days on/ 7 days off  schedule to a five day/ forty two hour schedule.

Applying a "context rule" of contract interpretation, Arbitrator Gaunt found that the management rights provision of the cba was ambiguous. Looking to the parties past practice, the Arbitrator concluded that the State could not unilaterally change the schedule. She ordered the State to make whole employees impacted by the change and to restore the previous schedule.

 The State has filed a complaint to vacate the award. It alleges that the award violates public policy in that "the Alaska Constitution provides that criminal administration shall be based upon the need for protecting the public, and the Commissioner of the Department of Corrections has the statutory and contractual authority to protect the public by determining the hours of operation of correctional facilities and assigning the work shifts accordingly..." It also claims that the cost of compliance with the Arbitrator's order to restore the previous shifts "is so great as to result in an attempt to supersede the constitutional and statutory authority of the Commissioner of DOC and intrude on core management rights of the Commissioner to expend the public funds in accordance with the laws of the State."

The Alaska Correctional Officers Association links to Arbitrator Gaunt's award here and the State's complaint to vacate the award here.   

Acquitted of criminal charges, but just cause for dismissal

Grievant was employed as a middle school teacher. In addition to his teaching duties he performed  a number of advisory and extracurricular functions, including organizing student dances and serving as faculty advisor to the Junior National Honor Society. He also supervised the student run "School Store" and the sale of candy for fundraising purposes.

During his tenure grievant personally handled the cash receipts from these activities, keeping the cash in his classroom. A new principal modified the cash management procedures and prohibited the retention of cash by teachers. Notwithstanding that directive, grievant continued to manage cash as he had done before. Because of growing concerns that grievant was diverting school funds to his own use, the school superintendent requested that the local police conduct an investigation. As a result of the investigation, grievant was charged with several counts of larceny. Following a trial, a jury found grievant not guilty of the charges.

Within a week of the verdict, grievant was notified of the termination of his employment.The charges against him included insubordination, untruthfulness, incompetence and conduct unbecoming a teacher - more specifically misappropriation of funds. The teacher's union pursued the dispute to arbitration, and Arbitrator Philip Dunn has rejected the grievance and upheld the termination.

Arbitrator Dunn rejected the Union's claim that the acquittal "should have ended the inquiry" on the misappropriation of funds, noting:

 the standard of proof applied in those criminal proceedings, proof beyond a reasonable doubt, is a significantly higher burden of proof than the one which the employer must meet in order to establish just cause for termination of the grievant’s employment. The findings of not guilty in the criminal proceedings, then, do not foreclose the Employer from seeking to prove by clear and convincing evidence that a misappropriation of funds occurred, thus establishing just cause for summary termination for that offense

He also rejected the Union's argument that the termination of grievant's employment was inconsistent with the principle of progressive discipline. The Arbitrator acknowledged that the principal:

     failed to apply lower levels of progressive discipline that might well have helped [grievant] appreciate the absolute necessity of conforming his behavior to the policies she had established. One has to wonder if Donais was disinclined to impose any discipline upon the grievant because he had in August been generous in helping her get prepared for her first year as principal, and/or because of her newness in the role of principal. In any case, she did not take any disciplinary action on any grounds against the grievant until January 2011, when matters had escalated especially regarding fiscal matters.
     To then cite this collection of relatively minor offenses which occurred months prior the
grievant’s placement on administrative leave, as part of the rationale for summary termination,
looks more like improper, “cumulative” discipline rather than the progressive discipline which is
an integral part of the just cause standard. It is inconsistent with the concept of just cause to
knowingly allow a bunch of lesser offenses over time to go undisciplined at a lower level, but
then to add them all up and assert that as accumulated, they justify summary termination.

Nevertheless, he concluded

in the case of egregious insubordination and misappropriation of student activity funds as occurred here, after and notwithstanding the clear and forceful directives from Assistant Superintendent Kosmes; and then followed by dishonesty as the school administration tried to learn what had in fact transpired; the Employer was justified in moving directly to termination of employment, without any progressive discipline. Moreover, given these facts, the best interests of the pupils in the school district were properly served by the summary termination of grievant’s employment, notwithstanding his many years of service to the Haverhill Public Schools.

Arbitrator Dunn's award in Haverhill Education Association and Haverhill School Committee can be found here.

Two APWU Awards

Arbitrators have recently issued awards in two USPS/APWU cases.

In the first, Arbitrator Stephen Goldberg interpreted the language of the parties' cba that provided for payment of a higher starting salary to certain Postal Service employees "with the concurrence of the Union" when an increase was necessary for recruitment or retention.The dispute arose when the Postal Service approached the Union seeking their concurrence and, according to the Postal Service, the Union made an unrelated demand as a condition of their concurrence. USPS maintained that the Union could only negotiate concerning the amount of the proposed increase. APWU maintained that nothing in the Agreement precluded it from conditioning its concurrence on issues other than those related to the amount of the hourly rate proposed.

After reviewing the language, and the bargaining history, Arbitrator Goldberg reached a conclusion somewhat between the positions taken by the parties. The Arbitrator determined:

 Since the disputed language was proposed by the Union to serve Union interests, Union concurrence was not likely to have been viewed by the Union as limited to the narrow question of the amount of the proposed PSE wage increase, but could logically include other matters related to the Postal Service's proposal. Similarly, because the core issue dealt with by the disputed sentence is PSE wage rates, it is wholly unlikely that the Postal Service would have agreed to give the Union a blank check to condition its concurrence on grounds wholly unrelated to the PSE wage rates under consideration. Accordingly, I conclude that the Union may condition its concurrence on a Postal Service proposal to increase PSE wage rates solely upon matters reasonably related to the Postal Service's proposal, including, but not limited to, the amount of the proposed increase. 

In the second case, Arbitrator Shyman Das was called upon to interpret language first include in the parties' 2006 Agreement. The issue before Arbitrator Das was whether language referencing a notice requirement for subcontracting decisions made at the "Field level" included run of the mill work contracted at the local level. The Postal Service maintained it did not intend the meaning attributed to the language by the Union. Arbitrator Das rejected this position, concluding:

The record in this case includes Article 32 Due Consideration Worksheets routinely completed
at the local level when a decision is made at that level to contract out what the Postal Service
characterizes as "run of the mill" work. Therefore, even taking the SIAG guidelines into account, the evidence does not support the Postal Service's argument that the Union had reason to know of the interpretation the Postal Service asserts it attached to the term "Field level" in Article 32.1.C during the 2006 negotiations, and, objectively, it must be concluded that the term "Field level" as used in that provision includes local, as well as district and area decision making.
     Accordingly, the Union's position in this case that Article 32.1.C requires notification to the local union of decisions to subcontract bargaining unit work at local installations made at the local, as well as district or area, level is sustained.

APWU links to the award of Arbitrator Goldberg here, and the award of Arbitrator Das here.

Off duty conduct, credibility and progressive discipline

Arbitrator Clarence Rogers has upheld the dismissal of a police officer who had allegedly attempted to report to work under the influence of alcohol. In doing so he discussed several topics he considered in making his decision.

Grievant had been out with friends on the evening before Thanksgiving. She was drinking, and a coworker called the officer in charge to report what he had observed. The OIC called grievant to remind her she was scheduled to work a voluntary overtime dispatch shift beginning at 3 a.m.  Grievant explained that she erroneously believed she was scheduled for the following night and had been drinking and would be unable to make the dispatch shift. Grievant was also scheduled to report for her normal tour at 7 amThanksgiving day. The OIC reported the incident to the Chief. The OIC also reported that grievant had been observed operating her vehicle by another officer, who arranged to drive her home. The Chief went to grievant's house shortly before 7 a.m. He observed grievant in full uniform, with her firearm, getting into a vehicle. After asking her what had happened the previous evening, he directed her to remove her firearm and arranged transportation for a drug/alcohol test. The test showed a blood alcohol content of .139. Grievant's employment was terminated and the case was ultimately submitted to arbitration.

At the hearing, the Chief agreed that grievant was neither on duty nor on township property at the time she was sent to be tested. Grievant testified that she had been entering a friend's vehicle to use the cell phone to report off work when the Chief observed her.

Initially, Arbitrator Rogers noted:

The general rule is that an employer has no right to use its disciplinary power to regulate the lives and conduct of its employees outside the workplace. There are some generally accepted exceptions to this principle. The dividing line is the employer's legitimate business interest and the employee's right to privacy.¹
_____
¹The standards were first articulated by Arbitrator Louis C. Kesselman in W.E. Caldwell Co., 28 LA 435, 436-37 (1957), where he held that discharge for conduct away from the work place is impermissible unless: 1) behavior harms Company's reputation or product. 2) behavior renders employee unable to perform his duties.. 3) behavior leads to refusal, reluctance or inability of other employees to work with him ...

He noted, however, that off duty activity committed against the public, in public places, "requires special scrutiny," and that public employees, particularly those engaged in law enforcement, are held to an even higher standard. A law enforcement official who violates the law "destroys public confidence in law enforcement, demoralizes the entire enforcement agency, and brings discredit to his/her employer."

Assessing credibility, the Arbitrator rejected grievant's explanation that she was going to the car to call out from work. He noted that grievant was in full uniform, with a firearm, and did not immediately tell the Chief of her plan to call out. Had she intended to call out she would, he believed, have said so at the time.

The arbitrator further noted that while grievant had no prior discipline related to alcohol use, her prior record did not help her situation. He observed:

Progressive discipline is good employment relations practice, since it can correct bad performance and preserve a satisfactory employment relationship that benefits the employer and employee. Grievant has been progressively disciplined in the past. However, when an employee's misconduct is so severe that continued employment would undermine an employer's ability to function effectively, discharge is deemed appropriate. This is true even if the employee has received no similar discipline; and is unlikely to repeat the offense. Discharge serves the legitimate purpose of deterring other employees from engaging in such conduct. See e.g. Freemen United Coal Co., 82 LA 861, 866.

Based on the totality of the circumstances, the Arbitrator determined that grievant's actions justified the township's decision and that the discharge was for just cause.

Arbitrator Rogers' award in FOP Ohio Labor Council and Perkins Township can be found here.

Court: Arbitrator can compel employee to resign

Grievant was a police sergeant with the Trenton, OH police department. His employment was terminated for events relating to his issuing a traffic citation to the wife of a firefighter from a neighboring community. After the citation was voided by the Lieutenant, grievant sent a "clearly sarcastic" email to him and complained to the Chief. According to the Chief and Lieutenant, grievant was instructed to take no further action until a meeting among them could be scheduled. Nevertheless grievant went to the home of the individual to whom he had initially issued the ticket and reissued it. He also spoke with the firefighter-husband, telling him that the Lieutenant's action in voiding the ticket was unlawful and that he may face criminal charges. Grievant also investigated the Lieutenant's use of an impounded vehicle using a law enforcement data base and meet with the County prosecutor while on duty. After a hearing grievant was deemed to have violated the Department's Code of Conduct and his employment was terminated. The Ohio PBA filed a grievance and pursued the case to arbitration.

The arbitrator determined that grievant's reissuance of the traffic citation was insubordinate and deserving of disciplinary action. She also concluded that the conversation with the firefighter-spouse warranted "some significant disciplinary action." The arbitrator additionally noted that the circumstances leading to the discipline created distrust among the three commanding officers of a small police department. As a result, the Arbitrator concluded:

The grievance is sustained in part and denied in part. [Grievant’s] discipline shall be reduced to a thirty day unpaid suspension but he shall not be reinstated to employment. [Grievant] is awarded back pay from August 20, 2011 to the date of this Award together with benefits and any out of pocket loss as a result of the termination of benefits from the date of his termination to the date of this Award. The termination shall be removed from [grievant's] personnel file and [grievant] will be considered to have resigned from employment effective on the date of this Award.

The Union sought to vacate that portion of the award requiring grievant to involuntarily resign. The City sought to confirm the award. The Court of Common Pleas agreed with the Union, and the City appealed. The Ohio Court of Appeals has reversed and confirmed the Arbitrator's award.

Contrary to the lower court, the Court of Appeals concluded that the award drew its essence from the cba, noting that the cba defined available forms of discipline as written reprimands, suspensions without pay, and discharge. The Court observed:

The arbitrator further concluded that, because of [grievant’s] conduct in relation to his commanding officers, distrust was created within the Police Department that could not be eradicated. In addition, the arbitrator explained the advantages and disadvantages of resignation rather than termination. While the arbitrator determined [grievant’s] conduct warranted him leaving the police department, she did not want to obstruct his future employment in law enforcement. Thus, the arbitrator made one remedial determination, finding that [grievant] should serve a 30-day suspension without pay followed by resignation from employment while having the termination removed from his personnel file.

The court concluded that the arbitrator’s holding that grievant should resign fell within the essence of the cba “which permits the removal of an employee from employment.”

The dissent would have affirmed the lower court, noting "I think it inappropriate to allow an arbitrator the authority to force an employee to resign from employment when an employer does not have this type of power."

The court's opinion in Ohio Patrolmen's Benevolent Association v. City of Trenton can be found here.

Connecticut Supreme Court: Egregious sexual harassment compels termination, arbitrator's contrary award set aside

"The issue to be decided in this appeal is whether an arbitrator’s award violates public policy when an employer’s decision to dismiss an employee who has engaged in sexual harassment is reduced to a one year suspension without pay." This was the question decided by the Connecticut Supreme Court in State v. AFSCME, Council 4, Local 391.

The dispute arose from the termination of a correctional officer for sexual harassment. The grievant had been accused of making verbal comments to a coworker and touching him, allegedly in front of other employees and inmates. The acts were said to have occurred over an extended period of time.

While finding some of the witnesses may have "stretched the truth", the arbitrator concluded that the accusations were true and were substantiated by the witnesses. The arbitrator also concluded, however, that the offenses were not severe enough to justify termination of employment. Accordingly the termination was reduced to a one year unpaid suspension.

Affirming the lower courts, the Connecticut Supreme Court has determined that the award reinstating the correctional officer is contrary to the public policy against sexual harassment in the workplace. The Court held that the facts as found by the arbitrator compelled the termination of employment. The Court noted:

the grievant knowingly violated the state’s public policy against sexual harassment, as embodied in administrative directive 2.2, and ... his misconduct was both highly egregious and incorrigible. We also emphasize the undisputed fact that the conduct occurred in a prison in the presence of other employees and inmates, where the need for order, discipline and a culture of mutual respect among employees is particularly acute. Accordingly, we conclude that the public policy against sexual harassment in the workplace ‘‘require[d] nothing less than [the grievant’s] termination . . . .’’ Brantley v. New Haven, supra, 100 Conn. App. 863. We simply cannot conclude that ‘‘reasonable people [could] differ as to whether reinstatement or discharge [was] the more appropriate’’ form of discipline for this absolutely deplorable and repeated misconduct ...[footnotes omitted]

The Court also noted that the Union had presented evidence that other employees who engaged in sexual harassment had been disciplined short of termination, but concluded that:

although we must defer to the arbitrator’s factual findings with respect to these incidents, it is ultimately for this court, not the employer, to make the legal determination as to whether a particular form of discipline for a particular incident of employee misconduct complies with the public policy of this state. In other words, the fact that an employer has previously violated a public policy by retaining an employee who should have been dismissed does not alter the public policy or justify additional violations of the public policy.

The dissent would have confirmed the award, observing:

...the decision reached by the majority takes away the discretion of the arbitrator, when the collective bargaining agreement, as in this case, allowed for that very discretion. Further, the rule adopted by the majority effectively grants authority to the state to discharge an employee whenever sexual harassment is established, regardless of the nature of the harassment, thereby undermining the arbitration process voluntarily agreed to by the parties.