Sunday, February 10, 2013

Comcast unsuccessful in effort to set aside award

Courthouse News Service reports on a decision rejecting Comcast's efforts to set aside an arbitrator's award. Comcast claimed that the arbitrator exceeded his authority by reading into the cba a provision that had been eliminated. Back Pay for Broadband-Certified Comcast Staff.

Comcast and IBEW Local 827 were parties to a cba providing a 5% pay increase for employees possessing a broadband certification (BBC). That provision was included in Appendix B of the parties' agreement. Appendix B also included wage rate schedules, wage increases, and a ratification bonus. During negotiations for a successor agreement, the union ultimately agreed to the company's final proposal. Paragraph 6 of that proposal began "Replace Appendix B with the following..." and set forth new pay scales and wage increases. It did not include any reference to a broadband certification. While initially transmitting a draft of the new agreement which continued the BBC provision, Comcast claimed this was an error, and transmitted a new draft without the BBC increase provision. When Comcast refused to pay the BBC increase the Union grieved, and ultimately arbitrated the non payment.

The arbitrator found that the phrase "Replace Appendix B with the following" was ambiguous concerning the BBC issue, and sustained the grievance. Comcast sought to vacate that award, but the District Court in NJ rejected that claim. Noting the arbitrator's careful review of the record and the parties bargaining history, and the limited scope of review of an arbitrator's award, the court confirmed the award, observing:

The Court finds that while the Arbitrator did not have the authority to modify the MOA,
he was called upon to determine whether the Parties intended to eliminate the BBC Increase
provision from the CBA. In his decision, the Arbitrator reasoned that, based on the structure of
the MOA, the word "replace" "under no circumstances means literally replace."' ...The Arbitrator stated that "[ o ]n its face, what follows in paragraph 6 is not language fit to be inserted into a collective bargaining agreement. Rather, it is a rough outline of what was to be included in the new Appendix B, with much additional clarification and reorganization required."                                                   

The court concluded that "the Arbitrator's reasoning shows how the interpretation can rationally be derived from the agreement when considering all of the language of the MOA and its context."

Courthouse News links to the court's decision here.

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