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.

No comments:

Post a Comment