Sunday, March 30, 2014

Complaint under NY Health Care Whistleblower Law barred by arbitrator's award finding just cause for termination

The New York Supreme Court for Kings County has granted a Motion to Dismiss a Whistleblower complaint filed under the State's Health Care Whistleblower Law. While concluding that plaintiff was not an "employee" as defined in the statute, the Court also determined that the complaint was barred by an arbitrator's award which found plaintiff's termination to be for just cause.

Plaintiff was employed by Wycoff Heights Medical Center as a pharmacist. Her complaint alleged that her employment had been terminated in retaliation for her complaints of unsafe conditions in the pharmacy. The Hospital moved to dismiss the complaint on a number of grounds, including a prior arbitration award under the union contract covering plaintiff in which the arbitrator determined the termination was for just cause.

Agreeing with the Hospital, the Court determined:

[T]he prior arbitration award between plaintiff's union and Wycoff determined that the plaintiff's termination was for just cause, and not based upon her "exercise of any rights" under Labor Law Sec. 741 .... After a full hearing, the arbitrator found that plaintiff was culpable for misconduct on July 30, 2011, and concluded that "when evaluated as an additional incident in a sequence of uncooperative behavior justifying progressively severe discipline for recalcitrance and other unprofessional conduct [the Hospital] was justified in imposing increasing levels of substantial discipline, up to and including termination." Thus, as Wycoff argues, its decision to terminate plaintiff was predicated upon a legitimate, independent and non-retaliatory reason, namely plaintiff's culpable misconduct on July 30, 2011 and her past uncooperative behavior, rather than on any complaints plaintiff may have made about safety in the pharmacy...."

The Court rejected plaintiff's contention that she should not be barred from pursuing her whistleblower complaint since she was not a "direct party" to the arbitration, holding that a union arbitrating a grievance on behalf of a grievant acts as an agent of the grievant and the grievant is bound by all claims decided in the arbitration. This was true, the Court determined, even though grievant had not raised her allegations of unsafe conditions in the pharmacy during the arbitration.

The court's decision can be found here.

Saturday, March 22, 2014

Sexual conduct between teachers on school premises insufficient to support termination

The New York Appellate Division has concluded that the termination of two teachers accused of engaging in sexual activity on school premises, upheld by two arbitrators, was "shockingly disproportionate" to the misconduct.

The two teachers had returned to the school after dinner to attend a school musical competition. While the performance was underway, the two were discovered in an upstairs classroom. The school asserted that they were partially undressed and engaging in what appeared to be sexual behavior. The teachers denied any sexual impropriety and claimed that one had been rendering medical assistance to the other.

Arbitrators upheld the dismissal of both teachers, and the matter was appealed to the courts. In both cases, the Appellate Division found that termination of employment was too severe. Essentially accepting the arbitrators' findings that the two had engaged in the conduct alleged, the court nevertheless concluded that termination was unwarranted.  In both cases, the Court observed:

While petitioner's behavior demonstrated a lapse in judgment, there is no evidence that this incident, was anything but a one-time mistake ... Of critical significance is that, unlike matters involving some form of romantic involvement or other inappropriate conduct with a student, petitioner's engaging in what appeared to be consensual sexual conduct with an adult colleague is not in and of itself either criminal or otherwise improper. Indeed, lesser penalties have been imposed where a teacher had an ongoing relationship or engaged in inappropriate behavior with a student ...

Nor did the Court find that the extensive publicity the incident engendered justify termination, noting:

While it is unfortunate that the incident garnered so much attention and was exploited in the media, that in and of itself does not warrant the penalty of termination

Accordingly the court vacated the penalty of termination and remanded the cases for imposition of a lesser penalty.

The Court's opinions can be found here and here.

Sunday, March 16, 2014

Management rights, past practice and arbitrability

The Texas Fourteenth Court of Appeals has reversed the decision of a Texas District court and ordered the City of Orange to arbitrate a dispute about the involuntary assignment of a firefighter to the position of Fire Marshal.

The Orange Association of Firefighters claimed that the Chief had violated the parties' cba when he made an involuntary assignment rather than seeking volunteers. The Union maintained that the Chief's action was a deviation from past practice, and breached the "maintenance of standards" provision of the contract. That provision carried forward all economic benefits, privileges and working conditions in effect when the contract was signed unless continuation adversely interfered with normal operations of the fire department or was contrary to the cba. The City maintained that the contract's management rights clause reserved to the City the right to determine "the assigned work of employees" and the authority to "assign employee[s]."

When the City refused to submit the dispute to arbitration, the Union filed a declaratory judgment action seeking to compel arbitration. The District Court declined to compel arbitration, finding that the cba provided for the City's right to order an employee to accept the Fire Marshal position.

On the Union's appeal, the Court of Appeals reversed and ordered the City to submit the dispute to arbitration.

The Court noted that, while "the strong policy in favor of arbitration cannot serve to stretch a contractual clause beyond the scope intended by the parties," the dispute was properly one to be decided by an arbitrator. It observed:

The Association does not dispute the City’s contractually reserved rights to assign employees or determine the assigned work of employees, except as specifically limited by the Agreement. However, the Association’s grievance alleges the City’s violation of the Agreement’s "maintenance of standards" provision by altering its past practices of filling the position of Fire Marshal by voluntary assignment.
Interpreting the Agreement to decide how these provisions interact is a matter that the parties expressly agreed to submit to a grievance and arbitration procedure. When, as in this case, the Agreement’s grievance procedures are broad, as encompassing "[a]ny controversy between the City and the [Association] or any employee concerning the interpretation, enforcement, or application of any provision of this Agreement," we presume the Association’s grievance is arbitrable absent any express provision excluding the particular grievance from arbitration.

Finding no express provision of the cba excluding a grievance challenging the City's claimed deviation from past practice from arbitration, the Court concluded that the dispute involved "interpretation, application or enforcement" of the cba and was properly subject to arbitration.

The Court's opinion can be found here.

Sunday, March 9, 2014

Employer's failure to timely seek to set aside arbitrator's award precludes defense to Union's action to confirm

As noted in an earlier post, here, UFCW and King Soopers Inc were parties to a dispute about an employee's claim that a store had created a hostile work environment by failing to protect him from a disagreeable customer. An arbitrator determined that King Soopers had violated the cba and ordered it to take "all steps necessary" to provide a hostile-free work environment, including the establishment of a zero tolerance policy for violence and the exclusion of the offending customer from the store.

King Soopers did not comply with the award, but did not seek to set it aside within the 90 day period provided under Colorado law. The Union subsequently sought to confirm the award, and in its defense King Soopers asserted, inter alia, that the arbitrator had exceeded his authority by ignoring the plain language of the cba. The District Court agreed with the Union that King Soopers' failure to timely seek to set aside the award precluded it from raising affirmative defenses to the Union's enforcement efforts. However, on the Union's motion to confirm the award, the Court determined that the arbitrator had ignored the plain language of the cba and effectively altered it by ordering the store to establish a zero tolerance policy. Accordingly the Court refused to confirm the award.

The Tenth Circuit has now reversed the District Court and remanded the case with instruction to enforce the award. The Circuit Court noted:

Although King Soopers could have brought a timely action to vacate the award on the ground adopted by the district court, it did not do so. As we decided in International Brotherhood of Electrical Workers, Local Union No. 969 v. Babcock & Wilcox, 826 F.2d 962 (10th Cir. 1987), it therefore cannot raise that defense against the Union's action to enforce the award. For the same reason, we also hold that King Soopers cannot raise the defense that the arbitrator lacked authority to impose a remedy.

The Circuit noted that while there might be rare circumstances in which a court could refuse to confirm an award despite the absence of a timely challenge to it (e.g. an award whose substance is contrary to public policy or an award against a person not a party to the agreement) the lower court erred in setting aside the award on the grounds that it did not draw its essence from the cba.

The opinion of the Tenth Circuit can be found here.

Sunday, March 2, 2014

Employer's transfer of bus driver at school's request not disciplinary, just cause not required

The Connecticut Board of Mediation and Arbitration has issued an award in a dispute between First Student and Teamsters Local 671. The grievance was filed on behalf of a school bus driver employed by First Student who was transferred to a different route after a request by Manchester Public Schools that she not drive any of their students. The cba between First Student and the Union required (according to the Board) First Student to remove a driver at a school's request. Following the removal of the grievant from the route, she accepted a transfer to a different school district. The Union sought to challenge the removal and alleged that the employer had failed to conduct a thorough investigation of the conduct alleged to be the basis of the request for removal. Unsuccessful in the grievance process, the Union pursued the case to arbitration.

The Board of Mediation and Arbitration unanimously found no violation of the cba. Concluding that the Union had failed to meet its burden of proof, the Board noted:

The contractual language which governs this dispute is clear and unambiguous. It requires the company to remove a driver upon the request of a school district. The company met this request. Also, since the company was not discharging or disciplining the grievant it was obligated to make reasonable efforts to find the grievant other suitable employment at a different location. It met this obligation and the grievant was transferred to another nearby school district.

The Board further noted that while, as a practical matter, an investigation by the company might make sense in order to understand the reason for the school's request, "failure to investigate fully is not a basis for converting a reassignment into a disciplinary decision." The Board concluded that the company had no discretion to refuse the school's request, and thus this was not a situation in which just cause was required.

The Board's decision can be found here.