Arbitrators improperly adding obligations to parties' contracts

Two recent decisions overturn arbitrators' awards, finding that the arbitrators acted in excess of their authority by adding obligations to the cba or by ignoring its provisions.

Definition of Gross Misconduct

In National Children's Center v. SEIU Local 500 the District Court for DC overturned the award of the Arbitrator, concluding that he had improperly ignored the terms of the cba.  The cba provided that just cause was defined as "NCC's determination that an employee does not meet this high standard [of performance, quality and care], so long as NCC does not exercise its discretion in a manner that is arbitrary, capricious or without foundation ...." NCC had also issued rules, as provided for in the cba, which defined gross misconduct as including removing, without permission, NCC property or the property of another employee.

Grievant had, at the request of an employee who had been dismissed, removed from the facility certain equipment the dismissed employee claimed belonged to her. After grievant informed NCC of what she had done, NCC terminated her employment for claimed violation of the rule.

The arbitrator concluded that grievant's conduct had violated the rule, but that her conduct did not constitute "gross misconduct." The arbitrator determined that NCC had therefore acted arbitrarily and capriciously when it terminated grievant's employment. He ordered grievant's termination reduced to a 30 day suspension.

NCC sought to set aside the award, and the District Court granted the motion. It concluded:

In this case, the arbitrator denied NCC the benefit of the bargained-for terms of its collective bargaining agreement, specifically, NCC's right to distinguish and define "gross misconduct." The arbitrator acknowledged that Section 703.6 fulfilled legitimate management purposes and that [grievant] had no reasonable excuse for her ignorance of the rule. ... Nonetheless, the arbitrator contravened the express terms of the collective bargaining agreement by finding that [grievant's] conduct "d[id] not rise to the level of gross misconduct." .... The collective bargaining agreement reserved to NCC the discretion to craft workplace rules and define "gross misconduct." See 2011 Collective Bargaining Agreement at 25. The arbitrator therefore ruled in contravention of the collective bargaining agreement by "substitut[ing] his [own] judgment or discretion for NCC's judgment or discretion." ...

 The court found that rather than interpreting the cba, the Arbitrator had substituted his judgment for "the clear management rights provided in the collective bargaining agreement."

The court therefore remanded the dispute to the arbitrator for a determination of whether NCC acted in an arbitrary and capricious manner when it fired grievant for what the rule defined as gross misconduct.

Implied terms of the cba


In County of Lebanon v. AFSCME District Council 89, Local Union 2832, the Commonwealth Court of Pennsylvania affirmed a lower court's refusal to confirm an award of Arbitrator Jane Rigler that had ordered the County to rescind the contracting out of a nursing homes' dietary department.

The contract between the County and the Union provides that "[i]n the event the [County] sells, leases, transfers or assigns any of its facilities" it is obligated to attempt to place the affected employees with the new employer and to provide thirty day notice to the Union. The Arbitrator concluded that this provision was applicable to the contracting of the dietary department, but that while the contract imposed no explicit prohibition on contracting out the work, an implied obligation of good faith and fair dealing barred the County from doing so without first  "fully and fairly dealing with the Union." The Arbitrator ordered the County to resume operation of the department and offer reemployment to all affected employees.

The County sought to set aside the award, and the Court of Common Pleas agreed. The Union appealed, and the Commonwealth Court has now affirmed.

In rejecting the Arbitrator's finding of an "implied obligation" the Court observed:

Notably, the Arbitrator ... found that the CBA "impose[d] no explicit constraint on the County's ability to contract out Cedar Haven, dietary services, work."... The Arbitrator then concluded that because the Article was silent as to the circumstances, the Article was also silent as to the County's pre-transfer obligations to the Union, and that such pre-transfer obligations should include participation by the Union in the decision-making process. Such a conclusion, however, is contrary to the plain language of Article XXXIII, which expressly lays out the County's dual pre-transfer obligations to the Union: (1) attempted placement of employees and (2) at least thirty days' notice. The arbitrator may not have liked the terms, or thought they offered the Union insufficient protection, but she was "confined to interpretation and application" of the CBA and was not free to "dispense [her] own brand of industrial justice." ... The Arbitrator, in other words, "was obliged to apply the agreement as written, without imposing additional terms that modify and limit what the parties expressed."

Concluding that the Arbitrator's decision attempted to impose duties that were not provided for in the cba, the Court affirmed the lower court's refusal to enforce the award. 

Employer not obligated to extend grievance settlement to different unit

A Steelworkers Local represents a unit of production and maintenance employees at 3M's Cottage Grove, Minnesota facility. IUOE Local 70 represents a combined unit consisting of certain employees at Cottage Grove as well as employees at another 3M facility in St. Paul.  Until April of 2010 employees represented by both unions at Cottage Grove were covered by a common Attendance Control Program. After that date, 3M introduced a separate program for Local 70, though the terms were essentially the same.

In January of 2012, 3M and Local 70 settled a grievance concerning the program. Pursuant to the agreement, after a transition period employees represented by Local 70 would not be charged with an occurrence under the Attendance Control Program for sick leave absences.

In May of 2013, an employee represented by the Steelworkers was suspended for three days under the Attendance Control Program for a sick leave absence. The Steelworkers filed a grievance, asserting that it was "unfair and discriminatory" not to give grievant the same relief the employees represented by Local 70 had received. The Steelworkers claimed the circumstances were identical to those present in the grievance settled by 3M and Local 70. The parties were unable to resolve their dispute in the grievance procedure and the Union submitted the dispute to Arbitrator Thomas Gallagher for resolution.

Arbitrator Gallagher denied the grievance. He noted initially that at the time it negotiated it most recent cba the Steelworkers did not attempt to negotiate modification of the Attendance Control Plan to achieve the result it sought, even though it was aware of the IUOE settlement at that time. Noting that Steelworkers were now attempting to modify their agreement by means of a favorable award in the arbitration, the Arbitrator concluded "Contract amendment is not within the authority of a grievance arbitrator; it should occur only in the give and take of bargaining." The arbitrator also observed that 3M had presented evidence that the nature of the workforce represented by the two unions was different, and that the Company could tolerate greater absence among the IUOE employees. He concluded:

          That difference in the need for attendance is at least sufficient to show that the issue should not be resolved by an arbitrator's determination that relevant circumstances affecting both employee groups are identical.
          Rather, the interests of the parties should be resolved in bargaining. The bargaining process is better suited than arbitration to resolution of this kind of issue -- 1) because arguments of the Union in favor of uniform treatment of both employee groups may be able to lessen the Employer's concerns about maintaining production efficiency, 2) because arguments of the Employer may persuade the Union that good attendance will enhance production sufficiently to allow economic benefits, or 3) because the parties will find some other resolution in the give and take of bargaining. 

Arbitrator Gallagher's Award can be found here.

Weingarten and criminal investigations of employees

This is a subject addressed in two recent cases.

In Prince George's County v. Prince George's County Police Civilian Employees Association the Maryland Court of Special Appeals considered whether it was a violation of public policy for an arbitrator to conclude that the the County was obligated to inform an employee of his right to union representation "during an investigatory interview, when his  employer was conducting a criminal investigation."

Grievant, a civilian employee of the police department,was initially requested to meet with the Department's Criminal Investigation Division for an interview in connection with the investigation of a missing weapon. As that investigation progressed, Grievant was also asked about allegations he had impersonated a police officer, had engaged in the unauthorized use of the police radio while operating one of the Department's undercover vehicles, and improperly activated emergency equipment. A referral was made to the Department's Internal Affairs Division which ultimately issued a recommendation that greivant's employment be terminated. The recommendation was followed, and the Union pursued a grievance to arbitration over the discipline.

The arbitrator upheld the grievance on several grounds, one of which was that the Department had denied grievant his Weingarten rights during the interview.The Department sought to set aside the award, arguing that it violated public policy when it determined that grievant was entitled to a union representative during  a criminal investigation. The lower court confirmed the award, but the Court of Appeals reversed. Adopting reasoning similar to that adopted by courts in Illinois and New York, the Court concluded: 

As in Illinois State Police and City of New York, the arbitrator's award here and the circuit court's decision to uphold the arbitrator's award constrains the ability of the County's police department to conduct criminal investigations and interrogations of their union members. 
***
The serious crime of theft of a police officer's service weapon and impersonating a police officer cannot give way to an employee's Weingarten rights. To do so, as held by our sister jurisdictions, would interfere with the police department's ability to investigate crimes and violate the public policy of effective law enforcement. The public safety exception applies to this case because [Grievant] was being interrogated about several crimes by his police department employer rather than merely an employment issue and we thus reverse the decision of the circuit court affirming the arbitrator's decision.

Because it could not determine whether the Arbitrator would have overturned the termination on other grounds alone, it  vacated the award and remanded the dispute to a new arbitrator.


In contrast, the New Jersey Appellate Division, in  New Jersey Transit Bus Operations, Inc. v. ATU New Jersey State Council, affirmed a decision of the Public Employment Relations Commission (PERC) that denied a request by N.J. Transit to restrain arbitration of a claim that it had denied an employee his Weingarten rights during what the employer claimed was a criminal investigation by its internal police department.

Grievant had been dismissed for allegedly taking money from a fare box of a NJ Transit bus. He was interviewed at the worksite by officers of the NJ Transit Police Department. The Union claimed he was denied union representation during that interview. The employer filed a scope of negotiations petition seeking a determination that the Union could not rely on the alleged denial of union representation to exclude admissions made during the interview.

PERC rejected this request, and the Appellate Division affirmed. It quoted with approval the following excerpt from PERC's decision:

We reject NJT's argument that Weingarten rights never apply to interviews conducted by NJTPD because to allow such representation would frustrate the effectiveness of criminal interviews. While NJT asserts that NJTPD is akin to a municipal or State police force, NJTPD's jurisdiction is limited to "police and security responsibilities over all locations and services owned, operated, or managed by the [NJT] corporation and its subsidiaries." N.J.S.A. 27:25-15.1(a). The nature of the investigatory interview may have been criminal, but it resulted in an administrative termination of the employee's job. An investigatory interview conducted by the police arm of a public employer, as opposed to the public employer itself, is not, standing alone, a ground to render Weingarten protections inapplicable. In re Carroll, 339 N.J. Super. 429 (App. Div. 2001) (even though sheriff's officer was granted use immunity during an internal criminal investigation interview, he should have been allowed to consult with attorney and union representative); see also Dep't of Human Services, P.E.R.C. No. 89-16, 14 NJPER 563 (¶19236 1998) (finding a violation of the New Jersey Employer-Employee Relations Act when an employee interviewed by Human Services police was denied union representation where the employee had a reasonable basis to believe the information gathered at the interview was available for purposes of administrative discipline); see also U.S. Postal Service, 241 N.L.R.B. 141, 100 LRRM 1520 (1979) (finding that an employee interviewed by Postal Service inspectors and ultimately disciplined based on evidence obtained as a result of the criminal investigation was entitled to union representation). 

Correctional Officer Arbitration Awards

Several awards involving correctional officers have been in the news recently.

Correctional Officers Scheduling 

In State of Alaska and Alaska Corrections Officers Association, Arbitrator Kathy Fragnoli sustained a contract interpretation grievance involving the scheduling of vacations. She concluded that the Sheriff had violated the parties' cba by unilaterally imposing a leave restriction of 84 hour at a time. Most Correctional Officers worked schedules of seven twelve hour days followed by seven days off. The contract provided that leave selection should be based on seniority. Previously the CO's had selected vacations in one week increments using a round robin system. The Sheriff, claiming that this resulted in inequities and deprived junior employees the ability to schedule vacation in desirable times, imposed a limitation of one week of leave per month (which, when combined with days off resulted in three weeks off.) The State defended this restriction, claiming it was privileged by the management rights provision of the cba. Arbitrator Fragnoli rejected this claim, and rejected the State's argument that the restriction was necessary to equalize vacation opportunities, noting:

The other justification offered by the State—the equalization of vacation opportunities among
COs of varying seniority—is not a legitimate reason to restrict leave because it also violates the
contract. Article 20.1.E specifically states that leave selection is based on seniority. It is thus
clearly the intent of the parties ... that vacation leave be distributed based on seniority. The evidence indicated that the parties have utilized methods of leave selection (namely, the round robin) that achieve some level of equalization; any other unilateral attempts by the Department to undercut seniority as the primary basis for allotting scheduled leave violate Article 20.1.E.

The Arbitrator also rejected the State's reliance on the zipper clause of the cba, observing

Zipper clauses are construed very narrowly and clearly do not remove the need to bargain when an employer implements a new policy that directly contravenes bargained-for conditions of employment.

The Alaska Correctional Officers Association  links to the award of Arbitrator Fragnoli here.

The Association also notes here that the Alaska Superior Court has recently confirmed an earlier Award of Arbitrator Janet Gaunt (discussed here) reversing a change in scheduling of certain officers from a seven day to a five day schedule.  

Disparate Treatment 

In Iowa Department of Corrections and AFSCME Council 61, Arbitrator James Cox reduced the termination of a Correctional Officer to a forty day suspension. He did so primarily based on his finding of disparate treatment. Grievant had failed, on a number of occasions, to conduct inmate counts. Similar failures were found involving other night shift employees. In overturning the termination Arbitrator Cox observed that grievant's behavior was not as severe as that of another employee whose termination he had previously upheld. He also noted that the other employees who had engaged in similar conduct (although to a slightly lesser degree) had received only suspensions, concluding:

[Grievant] was one of 12 Officers disciplined for different degrees of similar misconduct in July 2013. It was unfair and unjustified to terminate [Grievant] while at the same time only suspending others involved in the same widespread abuse of the Count requirements in July 2013, whether for ten days or five days, for substantially similar misconduct involving between 2 and 4 occurrences rather than the 10 instances in which [Grievant] engaged. There was no identification of any factor other than the six occurrence differential to warrant his discharge. [Grievant's] discharge for similar misconduct constitutes disparate treatment especially considering the widespread failures to make and then represent having made Counts throughout the month and the number of Officers who were participants.

Accordingly, Arbitrator Cox reduced the termination to a forty days suspension.

Arbitrator Cox's Award can be found here.

Associating with a known criminal-his cousin

The Butler County, OH Sheriff has announced he will continue to appeal the decision of an arbitrator rejecting the termination of a corrections officer. The officer was dismissed after he allowed his cousin, who had recently been discharged from prison, to move in with him. The Sheriff maintained that this violated a contractual prohibition on associating with known criminals. According to a report in the Journal-News, Arbitrator Terry Bethel rejected the termination, noting that the cousin was not a notorious criminal and that grievant's actions would not substantially impair the reputation of the Sheriff's office. Sheriff ordered to rehire fired corrections officer. The arbitrator's award was upheld by the Butler County Common Pleas Court, and the Sheriff has indicated his intent to appeal that decision. Sheriff to appeal ruling reinstating corrections officer