Sunday, November 23, 2014

Pay for Snow Days - Part 2

With record snow falls in the news, it's appropriate to revisit an issue first discussed in January. The earlier post, Pay for Snow day?- Same city, same storm, different results, discussed two awards from the Connecticut State Board of Mediation and Arbitration reaching different results on claims for pay for days employees were instructed to stay home because of record snowfall.

Since those two decisions, the SBMA has issued at least two other awards, involving the same town, the same storm, but different bargaining units.

In Town of Wallingford and IBEW, Local 457 a panel chaired by Arbitrator Douglas Cho sustained the Union's grievance. The award, covering two separate units represented by the Union, concluded:

Both agreements clearly set certain wages and hours and establish a normal work week as 40 hours worked Monday through Friday for Electric Division employees. Once the parties have agreed to certain hours and wages, the Town does not have the unilateral authority to decide not to pay its employees for work scheduled during the established days and hours. There is no specific or general provision allowing the Town to require employees to use vacation time in order to get paid for days the Town decides to close due to weather-related conditions.

While observing that there were not many examples of prior weather related closings which might establish a past practice, the majority noted there were no examples of prior weather related closings for which employees were not paid.

The second award, Town of Wallingford and AFSCME Co. 4, Local 1183, decided by a panel chaired by Arbitrator Nestor Diaz, reached a similar result. The majority concluded that while the circumstances were extraordinary, and the Town acted in good faith, "this does not mean that the Town has a right to deprive employees of a day's wage and instead urge them to take a vacation day to complete a week's wages."

Sustaining the grievance, the majority ordered the Town to make whole employees for lost wages or vacation time used.

Sunday, November 16, 2014

Reinstatement of police officer fired for dishonesty regarding personal conduct not violative of public policy

Grievant was employed as a police officer for the City of Sandusky, Ohio. He worked the night shift, which was supervised by a Sergeant who was also a personal friend. Grievant was approached by the Sergeant's fiancee who informed him that she and the Sergeant were "swingers" and that she wanted to have a sexual encounter with him. She advised the grievant that the Sergeant was aware of her request and had no objection to it. The Sergeant subsequently informed grievant that he knew of his fiancee's request and confirmed that he had no objection. Grievant turned down the offer.

Several months later the Sergeant's now wife began texting grievant. She and grievant began exchanging sexually explicit texts and photos. The Sergeant became aware of these texts and became angry that grievant had been communicating with his wife without his knowledge. He informed two higher level officers of his belief that grievant had been sleeping with his wife. The Department began an investigation and grievant described the solicitation he had received. However, on at least two occasions, he denied the existence of any explicit photos before ultimately acknowledging their existence.

The City terminated grievant's employment and the Union pursued the matter through arbitration. Arbitrator Robert Stein, while finding a basis for some discipline because of grievant's alleged insubordination, overturned the dismissal, finding it without just cause.

The City brought an action to vacate the award, contending, among other bases, that reinstatement of a police officer who had been dishonest during the investigation violated public policy. The Common Pleas court denied that request. The court initially noted that "the essence" of grievant's dishonesty involved off duty conduct and noted further that the Arbitrator had found no evidence that it had any direct negative impact on grievant's work performance.

Distinguishing other cases where the alleged dishonesty also violated criminal laws, the Court refused to vacate the award holding:

      Bearing in mind the standard of review which requires a reviewing court to make every reasonable indulgence to avoid disturbing an Arbitration Award, the Court cannot find it violates public policy to reinstate a police officer who was dishonest about something that was not job related, had no "direct negative impact on his work performance" and did not involve violation of a criminal statute.
      The Court finds that its review of an arbitration award must necessarily be very narrow. This Court cannot substitute its judgment for the judgment of the Arbitrator. The basis for vacating such an award are well established and very limited. Under the law, this Court cannot find that the Arbitrator exceeded his power or that public policy prohibits reinstatement, given the unique facts of this case. 

The Sandusky Register reports on the case here and here. The Court's decision can be found here .

(The City also terminated the employment of the Sergeant, for, among other reasons, "failure to display absolute honesty." Arbitrator Mary Jo Schiavone sustained the Sergeant's grievance and ordered his reinstatement. Arbitrator Schiavone's award can be found here.  The City did not seek to set aside that award.)

In another case, also addressing an issue of claimed dishonesty concerning off duty conduct, Arbitrator Norman Bennett rejected a claim that an Austin, TX officer had acted dishonestly in providing conflicting and contradicting statements to Internal Affairs during an investigation of his off duty actions while working security at a hotel. Arbitrator Bennett did so, however, for reasons of insufficiency of evidence without discussing whether there was a nexus to grievant's employment. The Austin Chronicle reports on the case and the decision is available here.

Sunday, November 9, 2014

Court-Arbitrator erred in awarding back pay to Union as penalty

A court has vacated a portion of an arbitration award ordering General Mills to pay almost three weeks of back pay, calculated at the grievant's rate, to the Union as a penalty for the Company's failure to timely provide information to the Union in a termination case.

The grievant was an employee who had been dismissed for allegedly falsely reporting her time of arrival on three occasions to cover up tardiness of from one to three minutes. The issue before the Arbitrator was whether there was just cause for that dismissal, and, if not, what the appropriate remedy would be. At the hearing the Union argued, among other points, that the Company had failed to have grievant sign Attendance Review/Reports, and had failed to timely provide certain documents to it.

Arbitrator Barbara Doering concluded that while the Company had done as the Union alleged, these actions didn't change the fact that the grievant had "knowingly and with intent to deceive" entered the wrong start time on the documents. However because she found that no one before had been fired for "falsifying" their time in, and because it was not clear that the certification language on the documents sufficiently warned the employee that failure to enter the actual start time would result in termination, the arbitrator reduced the termination to reinstatement with one week of back pay. The Arbitrator also ordered that General Mills pay to the Union three weeks of back pay:

which was the amount of time from 2/6/12 [the date of the initial meeting with the grievant] to 3/5/12 [grievant's last day of work] that the Company took to consider and investigate -for the fact that [grievant's supervisor] did not have grievant sign Attendance Reviews and the fact that the Company did not provide the Union with copies of the relevant documents at the suspension meeting.

The Company did not challenge the Arbitrator's decision on the termination, but did seek to set the award of back pay to the Union.

While noting the strong presumption against overturning awards, the Court nevertheless vacated this portion of what it described as the Arbitrator's "strange" decision. It determined that this issue was not encompassed by the stipulated issue and that there was no contractual basis for the award of back pay to the Union. The Court concluded:

The arbitrator's decision to punish the company for not providing documents by awarding the Union money in an amount calculated by the amount of wages [grievant] would have earned from the date the company first met with her to discuss the issue until the date she was discharged (even though [she] had actually been paid for the days she worked during that time period) sounds to this Court like the arbitrator's own brand of industrial justice. Because the award to the Union was outside the scope of the issue the parties agreed to arbitrate and because the award does not draw its essence from the Master CBA, the Court hereby vacates the portion of the August 10, 2013 arbitration decision that awarded money to the Union

The Court's decision in General Mills, Inc. v. BCTGM Local 316G can be found here.

Sunday, November 2, 2014

Unsuccessful effort to set aside arbitrator's award not a basis for an award of attorneys' fees

SEIU Local 24/7 prevailed in an arbitration claiming that Pacific Gas and Electric had improperly denied security officers compensation for meal periods when they were subject to being on call or were required to respond to emergencies. PG&E sought, unsuccessfully, to set aside the arbitrator's award on the basis that the Arbitrator had ignored relevant contract language. The Union then sought an award of its attorneys' fees in the amount of $146,582.

The District Court, in a decision here, rejected the Union's request for an award of attorneys' fees. The court found no evidence that the Company's position was frivolous or undertaken in bad faith.

The Union appealed, and the Ninth Circuit has now affirmed. The Circuit Court noted:

Attorneys' fees are appropriate as a sanction when a party engages in bad faith or engages in conduct tantamount to bad faith. ... A refusal to obey an arbitral order may constitute bad faith conduct. ... However, a challenge to an arbitral order on the grounds that an arbitrator did not apply or misinterpreted the underlying contract does not necessarily constitute bad faith.

The Court's opinion is available here.