Sunday, October 27, 2013

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.

Sunday, October 20, 2013

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.

Sunday, October 13, 2013

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.

Sunday, October 6, 2013

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.