Sunday, November 24, 2013

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.

Sunday, November 17, 2013

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.

Sunday, November 10, 2013

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.

Sunday, November 3, 2013

"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.