Sunday, March 27, 2016

"No-add" language in cba doesn't prevent arbitrator from modifying contract

Can an arbitrator rewrite a contract to reflect the original intent of the parties despite language prohibiting the arbitrator from adding to or modifying the agreement? Arbitrator Michael Rapport said yes, and the District Court in Arizona has now confirmed that award. 

The cba between Asarco and the Steelworkers called for the payment of a Copper Price Bonus to unit employees on a quarterly basis, computed relative to the current price of copper. The agreement limited eligibility to employees accruing credit under the pension plan at the end of the calendar quarter.

In negotiation for a successor contract in 2011, the Company proposed that new employees would not be covered by the pension plan. It was undisputed, however, that there was no discussion of the impact of that proposal on the eligibility of new employees for the Copper Price Bonus or the link between pension eligibility and  eligibility for the bonus plan. The new agreement, with the Company's language on elimination of pension eligibility for new employees, was ultimately agreed to by the Union and ratified by the members.

After agreement was reached, one of the Company's HR representatives asked the Company's Director of Labor Relations about the impact of the pension language on bonus eligibility, explaining that as he read the language new employees were no longer eligible. The Director responded that "we have an issue here" and that this was new information for him. It was also undisputed that for several months after the new agreement became effective new employees were told that they would be eligible for the bonus.

As the time for payment arrived, the Company notified  the Union that it would not be paying the bonus to new employees. It maintained that the express language of the agreement rendered ineligible new employees not participating in the pension plan. The Union grieved the Company's decision and the dispute was submitted to Arbitrator Rappaport for resolution.

The Arbitrator issued an award upholding the grievance. He noted that while no contract language supported the Union's position, the doctrine of mutual mistake applied and warranted reformation of the contract. He found that neither party anticipated the impact of the elimination of pension eligibility on eligibility for the bonus payment. He rejected the Company's argument that language in the cba that withheld from the arbitrator "jurisdiction or authority to add to, detract from or alter in any way the provisions of [the] Agreement" prevented him from reaching such a conclusion. He observed:

What all this means is that the ultimate issue in this case is whether the Union met its heavy burden of showing that there was a mutual mistake made by the parties in negotiating and adopting the July 1, 2011 MOA. In situations of that kind, it has been recognized by numerous, but not all, arbitrators and other authorities that in the interests of justice and fairness, the arbitrator can rewrite a contract to correct what appears to be an obvious mutual mistake.

Accordingly the Arbitrator modified the cba to explicitly include eligibility of new employees for the Copper Price Bonus.

Asarco sought to set aside Arbitrator Rapport's award, arguing that he had exceeded his authority and that he had ignored the "no-add" provision of the cba. The Court summarized Asarco's claim:

 ASARCO argues that the Arbitrator exceeded the express jurisdiction and authority granted to him by the parties and dispensed his own brand of industrial justice by issuing an award that fails to draw its essence from the BLA [Basic Labor Agreement]  because it expressly violates the BLA. ... Citing United Food & Comm'l Workers Union, Local 1119, AFL-CIO v. United Markets, Inc.784 F.2d 1413, 1415 (9th Cir. 1986), ASARCO contends that if "the arbitrator's interpretation [of the collective bargaining agreement] violates the terms of the agreement, the court cannot enforce the award." (Doc. 1 at 11.) According to ASARCO, the award must be vacated because the Arbitrator added a new five-line term to the BLA, despite the BLA's express language stating that the Arbitrator did not have authority to vary the terms of the agreement.

Rejecting this claim, the District Court concluded :

The Court finds that the "no-add" provision did not close the door on the Arbitrator's authority to fashion relief when the undisputed facts revealed mutual mistake by the parties. The Arbitrator's reformation of the collective bargaining agreement only corrected the defect in the written document so that it reflected the true terms of the parties' agreement. The Arbitrator did not exceed his authority by applying ordinary principles of mutual mistake and reformation in the context of the "no-add" provision of the BLA.

The Court accordingly denied Asarco's request to vacate the award and granted the Union's request that the award be confirmed. The Court's decision can be found here.

A similar resolution is discussed at Correcting mutual mistake is not the same as modifying the contract

Sunday, March 13, 2016

Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer

Grievant was employed by the City of Chaska, Minnesota as a police officer. He had held that position for approximately 14 years with no significant discipline.

 In May of 2014 grievant was rotated to the day shift. In an effort to get out of what he described as a "funk" and improve his statistics for actively enforcing traffic laws, grievant began using stationary patrols as his primary method of traffic enforcement. This involved grievant parking at a location and looking for traffic violations. The use of stationary patrols was neither encouraged nor discouraged by the Department.

While engaging in these patrols grievant would randomly enter plate numbers of nearby vehicles to check for outstanding warrants and for individuals driving with a suspended or revoked license. This was a common method utilized by officers in the Department. Among the locations of grievants stationary patrols were the entrances and exits of two mobile home parks. Many of the residents of the mobile home parks were Hispanic and a number of residents were undocumented individuals who did not have drivers licenses. Per policy, if a plate check showed that the registered owner of a vehicle did not have a license, and if the driver generally matched the gender and age of the registered owner, it was appropriate to pull over the driver. Grievant continued to engage in these stationary patrols and, on a number of occasions, pulled over and issued citations to individuals who did not match the gender/age of the registered owner. Grievant's activities engendered a number of complaints to the Department alleging grievant was targeting Hispanics, and the Department instructed grievant to cease the stationary patrol at those locations. Grievant was upset at this directive but complied. Grievant was subsequently instructed to cease running random license plates and to cease arresting drivers for not having a license without the approval of a supervisor. In discussions with his supervisors concerning this directive grievant was alleged to have stated " I am personally responsible for sending over 100 illegal immigrants back to Mexico." Grievant denied making this statement. The Department thereafter arranged for an independent investigation of grievant's stops, and in April of 2015 terminated grievant's employment  asserting that he had "engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic/Latino drivers..." and that he had "provided untruthful answers during your interview ...."

The City's action was grieved and ultimately presented to Arbitrator Richard John Miller for resolution.

Arbitrator Miller rejected the grievance and upheld the termination.

Initially Arbitrator Miller addressed the question of burden of proof. Rejecting any effort to categorize the appropriate burden, the Arbitrator observed:

"Burden" and "quantum" of proof are two of the most involved aspects of the rules of evidence, which ordinarily are eschewed by arbitrators as being so complicated, theoretical and technical that they are unsuitable for such a relatively informal process. Consequently, rather than assigning to this case a quantum of required proof, such as proof beyond a reasonable doubt, preponderance of the evidence, clear and convincing evidence, or evidence sufficient to convince a reasonable mind of guilt, a better and more realistic approach to take is a determination of whether the Grievant is guilty of the appearance of and racial profiling by his patrol activity in the targeting of Hispanic drivers and, if so, was his misconduct the type serious enough to justify his discharge.

Applying this test, Arbitrator Miller concluded that the City had established the charges alleged. He found:

The Grievant asserts that his stationary patrol activity at the entrances and exits of the mobile home parks targeted traffic violations and not a specific class of people. However, that assertion is refuted by the evidence showing that the Grievant relied on racial and ethnic stereotypes as factors in selecting where to engage in stationary patrol and whom to stop and search. When the Grievant conducted stationary patrol at the entrances and exits of two mobile home parks widely known to have predominantly Hispanic residents, versus conducting stationary patrol on Highway 41 where the race of drivers could not be reasonably anticipated, his patrol activity effectively focused on racial and/or ethnic stereotypes as factors in his stops of Hispanic drivers since he associated no DL violations with Hispanics.

In light of this conclusion, the Arbitrator determined:

The Grievant engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic drivers in violation of CPD General Orders and the state statute. His conduct brought discredit to himself and the CPD and detracted from the respect and confidence of the community that is essential to law enforcement effectiveness.

 The Arbitrator also found that the evidence supported the City's claim that grievant had been untruthful, and that this provided an additional basis for the City's actions, noting:

A Police Officer is "granted special powers" and is held out as someone "the public can trust." City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 636 N.W.2d , 244 (Minn. Ct App. 2001), rev. denied (Dec. 11, 2001). Police Officers are held to a higher standard of conduct than other public employees. This stems in part from the oath that Police Officers take to protect the public they serve. The public entrusts the safety and security of lives and property to the protection of Police Officers. In turn, Police Officers are expected to conduct themselves in an exemplary manner adhering to the regulations promulgated by the CPD. The CPD badge and uniform worn by all Police Officers are symbols of the public's faith and trust, and Officers must conduct themselves in such a manner to be a role model to all citizens by adhering to the CPD General Orders and the state statute.

Accordingly Arbitrator Miller deemed the City's action's supported by just cause and therefore denied the grievance. The Arbitrator's award can be found here.