Sunday, August 30, 2015

A tardy teacher, tenure and due process

A recent case involving a school board's efforts to revoke a teacher's tenure for excessive absence, and an arbitrator's decision rejecting that effort, has received considerable publicity (New Brunswick teacher was late more than 110 times, but district can't fire him;  $90,000-a-year teacher late for work 111 times but keeps his job;  Chronically late N.J. teacher: breakfast routine was downfall).  The award of Arbitrator David Gregory explains his rationale.

Grievant had been late 111 times over two academic years. The School Board sought to revoke his tenure. Grievant claimed that despite his tardiness he delivered a "superb educational experience" to his students. Arbitrator Gregory rejected the positions of both the School Board and the grievant, finding both extreme and untenable.

He found that the Board had proven chronic tardiness and that grievant's "cascades of tardiness" was never plausibly explained. While acknowledging grievant's "innovative" legal arguments  he largely rejected grievant's purported justification, noting:

Assuming arguendo that Respondent is "all business" once he arrives, his self serving inflated characterization of his substantive abilities misses the essential point. His students are fully entitled to receive Respondent's very best-efforts for the entire period, and not merely for that remaining portion of the period following Respondent's chronically late arrivals.

The Arbitrator observed that withholding increment increases did not appear to have improved grievant's punctuality. Nevertheless he found that revocation of tenure was unsupported, noting:

...Respondent is entitled to due process and fundamental fairness. Due process is best understood as that which is due under the circumstances. With a decade and a half of service, progressive discipline and due process sufficiently militate against summary discharge in this case. Once charges are so well proven, I believe that the Employer is usually entitled to the imposition of the penalty sought. This is the established Elkouri principle. This case presents the rare exception to the general rule, and is also in full accord with the Elkouri principle.

Accordingly, Arbitrator Gregory concluded that Grievant should remain in unpaid status for the chronic tardiness until January 1, 2016.

Arbitrator Gregory's award can be found here.

Sunday, August 23, 2015

Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Grievant was employed as a bus driver with the Manhattan and Bronx Surface Transit Operating Authority. He worked as a bus operator for four hours per day, and he was also a union official and worked eight hours per day (on Transit Authority paid release time) on labor-management duties. In December of 2012 a bus dispatcher filed a complaint alleging that grievant had repeatedly sexually harassed her. In January 2013, at the request of the Union (Transport Workers Union of America, Local 100),  grievant was placed on union paid release time.

In April 2013 the Authority's EEO office issued a report finding reasonable cause to believe that grievant had engaged in conduct in violation of the Authority's sexual harassment policy. The TA presented disciplinary charges against grievant, but the Union disputed the Authority's power to maintain disciplinary action against an employee on union-paid release time. The Union claimed that placement on union paid release time created a "safe haven" protecting an employee from discipline.  The issue was submitted to an arbitrator  who upheld the Union's position. The Arbitrator concluded that the cba contained specific directives governing prohibited activities for employees on release time.

The Union filed an action seeking to confirm the award and the NY Supreme Court (the trial court) confirmed the award. The Authority appealed, and the Appellate Division has now reversed.

Initially the Court acknowledged  that:

in considering the issue before us, we must assume that the CBA itself calls for the remedy set forth in the Arbitrator's award; the question to be asked is whether the arbitrator's interpretation of the CBA — requiring reinstatement of the sexual harassment offender because the union-paid release time acts as a shield — runs counter to the identified public policy against sexual harassment in the workplace.

Answering the question in the affirmative, the Court held that assuming the arbitrator's award was contractually correct, the decision itself was contrary to public policy. While noting the limited scope of review of arbitrators awards, and the substantial deference they are owed, the Court determined:

...this is one of the relatively rare cases where a CBA award — reinstating a sexual harassment offender — runs counter to the strong public policy against sexual harassment in the workplace. If left to stand, the arbitration award will send the wrong message — that certain employees at the Transit Authority, mainly those who also performed union—related activities, may be free to create a sexually-charged atmosphere in the Transit Authority's workplaces because any complaints against them will be impeded by CBA protections. Knowing that complaints against employees like [grievant] will be impeded by CBA protections, victims of sexual harassment may hesitate to come forward to report opprobrious behavior, thereby undermining the Transit Authority's ability to promptly remedy such behavior. It is also imperative that employers have the unfettered ability to discipline employees such as [grievant] in order to both punish the offender and to deter other employees from engaging in such behavior.

The Court noted that it was not substituting its judgment for that of the arbitrator on the contractual question, nor was it imposing a remedy it felt was appropriate. Rather, "we simply vacate the award as violative of public policy."

The Court's decision Matter of Phillips v. Manhattan & Bronx Surface TR. Operating Auth. can be found here.

Sunday, August 16, 2015

Court confirms arbitrator's award upholding discipline for false statements in grievance documents

In April 2014, Arbitrator Harry S. Crump issued an award upholding the discipline of a Blaine, MN police officer for making false statements in her grievance. That award is discussed here. The officer had received a reprimand for allegedly working a “Reimbursable Police Services” assignment (i.e. overtime paid by a private entity) while on call. Blaine PD policy allowed on call officers to work this overtime provided they arranged for another officer to cover their on call duties. In the grievance challenging the reprimand, grievant asserted that she had made arrangements with “JS," another officer, to cover her  on call assignment and had informed her Sergeant of the change. Concerned about an apparent discrepancy between between the statement in the grievance and grievant’s previous statements, a Blaine Lieutenant arranged for an internal affairs investigation. That investigation concluded that the representations in the grievance were false, and as a result the Chief  imposed a four day disciplinary suspension. 

 Arbitrator Crump denied the grievance over the suspension, concluding:

there is no allowance in B.P.D. policies or [the Public Employment Labor Relations Act] for law enforcement officers to make false statements. The right to file a grievance does not provide a law enforcement officer with the right to make a false statement, nor insulate them from disciplinary action for violating B.P.D. policies and expectations relative to truthfulness. The Grievant did not claim on her grievance that she was "treated unfairly." The Grievant make [sic] affirmative representations that were false. The undersigned opines that the Employer has satisfied the Public Policy purpose to promote orderly and constructive relationships between all public employers and their employees.

The Union sought to set aside the Award as contrary to public policy. The Union claimed that disciplining an employee for statements made in the grievance process undermined what it believed to be an explicit public policy promoting resolution of workplace disputes through the use of grievance arbitration.

The district court rejected this effort, and the Minnesota Court of Appeals has now affirmed. Law Enforcement Services, Inc. v. Blaine Police Department

The Court summarized the Unions position:

the union asks us to recognize a PELRA-based public policy that prohibits a public employer from disciplining an employee based on the employee's statements in a grievance. The union argues that "PELRA's public policy [prohibits] a public employer from disciplining a grievant for lying in her grievance." 

The court declined to accept this position. Noting the limited scope of review of arbitration awards, and the Union’s inability to identify any explicit public policy supporting its position the Court concluded:

The arbitration award in this case does not explicitly conflict with PELRA's policy favoring grievance arbitration because the dispute between [Grievant] and the department was resolved in grievance arbitration. In fact, the award does not explicitly conflict with any of PELRA's provisions: although PELRA sets forth a public policy favoring the use of grievance arbitration to resolve disputes between public employers and employees, it does not prohibit discipline based on statements in a grievance. 

The Court therefore affirmed the district court's order confirming the arbitration award. 

Sunday, August 9, 2015

Arbitrator: City can verify dependent coverage under Health Benefits Program

In 2010, San Antonio firefighters represented by IAFF, Local 624 had a "passive" enrollment during the open period of the City's health care plan. Employees were not required to affirmative confirm dependent coverage; if a firefighter did nothing coverage would continue for previously listed dependents. That same year the City arranged for an outside consultant to audit the health care plan. That audit concluded that appropriate documentation for dependent family members, including birth and marriage certificates, was missing from some employees records.

In 2012, in order to confirm or verify that dependents covered under the family medical plan remained eligible, the City notified employees that they must actively enroll during the annual open period. The Union challenged this action and, after a period of litigation, the dispute was submitted to Arbitrator Maretta Comfort Toedt for resolution.

The Union raised a number of claims in support of its grievance. Initially it asserted that the City's action in requiring verification of dependent coverage violated the Maintenance of Standards provision of the cba. The Union argued that the "standard" in question was the Company's practice of never previously having conducted  audits of covered dependents. Arbitrator Toedt rejected this contention, noting:

"Freedom from audits” does not fall within the parties’ definition of a standard, privilege, or working condition. While the City may not have conducted audits for the purpose of verifying eligibility for dependent coverage in the past, this is not the same as a standard, privilege, or working condition. I agree with the City on this point; the grievance does not properly identify a standard, privilege or working condition as contemplated under Article 9. 

The Union also claimed that the Company's conduct breached the cba's guarantee that health care benefits for active Fire Fighters "shall not be terminated, altered, modified or reduced during the term of the Agreement." The Arbitrator concluded that the Union's reliance on this provision was misplaced. She observed:

While Article 25, Section 3 provides that the City will not terminate, alter, modify or reduce health care benefits during the term of the Agreement, it does not prohibit the City from determining eligibility and terminating coverage for individuals if they no longer meet the eligibility criteria for receiving those benefits. [footnote omitted]

Finally, the Arbitrator concluded that the benefit plan's Master Contract Document, which was incorporated into the cab, "implicitly but clearly entitled the City to conduct reasonable inquiries from time to time to confirm eligibility and to determine coverage."

Arbitrator Toedt declined to rule on the stipulated question of whether the City had the ability to discipline or terminate employees for failing to provide dependent coverage information, noting the absence of any lie case before her. She noted :

The most that I can say is that any case in which an employee is disciplined or discharged for failing to provide such information must be decided on a case-by-case basis by the arbitrator to whom it is presented. The City must prove the facts underlying the discipline. That arbitrator must determine whether the discipline or discharge was for just cause, which may include, among other considerations, whether notice was provided, progressive discipline, the appropriateness of the discipline, and possibly other due process issues. I can say no more than that I have interpreted the language of the CBA/MCD to mean that the City can request such information without violating either the CBA or the MCD. 

The San Antonio Express News reports on the case, and links to Arbitrator Toedt's award, here

Sunday, August 2, 2015

Arbitrator's failure to follow prior award not a basis for setting aside award

So held  the Eight Circuit in SBC Advanced Solutions v. Communications Workers of America. The grievance in issue involved a claim by employees that they were performing work of a higher classification and were entitled to a pay differential. The cba called for such a differential when "qualified" employees were "temporarily scheduled or assigned" to perform such work for a period of two or more hours in a week. Arbitrator William McKee sustained the grievance. He initially rejected the Employer's assertion that the employees must be test qualified to perform the higher level work to be eligible for compensation. In doing so he relied in part on prior awards he had issued as well as evidence of bargaining history to conclude that the Union had rejected a Company proposal during contract negotiations that would have required test qualification.

 He then turned to the question of whether the employees had been "temporarily assigned" to perform the higher level work. He concluded that "a]n assignment of higher-level work is temporary until such time as the Company chooses to change the job description of the lower titles to include those duties." In reaching this conclusion Arbitrator McKee "respectfully depart[ed]" from the awards  of two prior arbitrators who had determined that work assignments ceased to be temporary once they became a permanent part of an employee's workload. Arbitrator McKee found that these earlier awards would allow the Company to violate the contract as long as it maintained a violation long enough for the assignment to be deemed permanent. Accordingly he sustained the grievance and retained jurisdiction to resolve disputes about individual employees eligibility for the differential.

The Company sought to set aside the award, arguing that the award failed to draw its essence from the cba and that Arbitrator McKee had erred in failing to follow the earlier awards. The District Court rejected these claims (here), and the Eighth Circuit has now affirmed.

 With specific reference to the argument that the Arbitrator erred in failing to follow the earlier awards on the question of when an assignment was "temporary," the Court concluded:

Arbitrator McKee recognized ... that [his] interpretation was contrary to the interpretation of temporariness in the Heinz and Fowler awards. As we stated in Trailways  "we recognize that there may be situations where an arbitrator will refuse to defer to a prior award involving the same issue," including when "`(1) [t]he previous decision was clearly an instance of bad judgment; (2) the decision was made without the benefit of some important and relevant facts or considerations; or (3) new conditions have arisen questioning the reasonableness of the continued application of the decision.'" 807 F.3d at 1425 n.16 (quoting F. Elkouri & E. Elkouri, How Arbitration Works 428 (BNA 4th ed. 1985)).

Arbitrator McKee explained his declination of deference to a prior award involving a similar dispute by stating his disagreement with the prior decisions's interpretation of the contract's provisions. According to Arbitrator McKee, the Heinsz and Fowler Awards interpreted temporariness in a manner that gave the Company an incentive to violate the CBA as long as they violated it consistently for a given amount of time (or at least until the higher-classified job functions were performed long enough by lower-classified employees to be considered a permanent part of their job). Arbitrator McKee concluded that this interpretation was erroneous because it gave the Company the unilateral ability to render the temporariness requirement meaningless. In sum, Arbitrator McKee's decision to follow certain arbitration awards and not others, based upon those awards' factual and legal differences, does not authorize us to vacate his award under Trailways.

The Court acknowledged that on a second issue, i.e. what constituted an employee performing higher level work, the Arbitrator had not explained his decision not to follow an earlier award under the same contract. While finding that the Arbitrator "should have" explained his departure from the earlier award, his failure to do so did not compel a conclusion that his award should be set aside.

  Finally, the Court rejected the Company's contention that the doctrine of functus officio preluded the Arbitrator from retaining jurisdiction on the remedial issues, finding that while the award determined the Company's liability, it was not a final award triggering application of the doctrine.