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.

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