Sunday, May 29, 2016

Quick Hits: Timeliness, vacation selection, Deflategate and conduct unbecoming

Arbitrator exceeded authority ruling on the merits after finding grievance untimely

 Amalgamated Transit  Union, Local 85 grieved the actions of the Port Authority of Allegheny County in unilaterally revising its performance code governing absenteeism. At the arbitration the Port Authority maintained  that the grievance was untimely, and even if timely was without merit. The Arbitrator agreed that the grievance as untimely but ruled further that in any event the PA had not breached the contract. The Union sought to vacate that portion of the decision addressing the merits of the grievance. It claimed that once the arbitrator determined the grievance was untimely the arbitrator was without authority to rule on the merits. The trial court rejected the Union's efforts, finding that the Union had never sought to bifurcate the procedural from the substantive issues. On appeal the Commonwealth Court of Pennsylvania reversed. It agreed with the Union, concluding:  " Because the merits portion of the arbitration award cannot logically flow from the CBA due to the arbitration panel's disposition as to timeliness, the arbitration award does not satisfy the essence test."
The Court's opinion can be found here.

City erred in canceling vacations during Republican convention 

The City of Cleveland, in anticipation of hosting the Republican National Convention, announced that no vacations would be approved for the time period surrounding the convention. The Cleveland Police Patrolmen's Association grieved this decision as contrary to its cba. The parties agreement provided for 52 one week "furlough" [vacation] periods during the calendar year and further provided that the same number of officers would be on furlough during each of the furlough periods. Arbitrator Alan Miles Ruben upheld the Union's grievance. He found that the management rights provision of the cba did not override the explicit language of the cba. However, in light of the disruption that would be created in recanvassing for vacation, and the undisputed need for an "all hands" response, he ordered the City to pay the most senior fifty (the number otherwise eligible for vacation)  Patrol Officers scheduled on duty, in seniority rotation, time at the call in rate overtime rate. reports  on the decision and links to the award here.

Two briefs filed seeking reconsideration of Deflategate decision

 The NFL Players Association has filed a request for reconsideration with the Second Circuit, seeking a rehearing of the Court's decision upholding the suspension of Tom Brady. A copy of the Union's brief is available here. The New England Patriots filed  an amicus brief in support of the request.

Termination of police officer for racially derogatory text messages upheld

Arbitrator Carey M. Fischer has upheld the termination of a Fort Lauderdale police officer who engaged in an exchange with coworkers of text messages containing "disparaging and offensive racial terminology." Arbitrator Fischer rejected the officer's claims that the messages had been improperly intercepted, that he had a right to privacy in communicating with fellow officers, and that his communications were protected by the First Amendment. The arbitrator observed: "The heat of battle is one thing; denigrating a whole group as part of one's personal entertainment is another. A slip of the tongue in a fit of pique or a one time indiscretion maybe allowable. But, the conduct in this case is not." Accordingly he upheld the decision of the City that grievant had engaged in "conduct unbecoming a police officer" and found sufficient cause for dismissal. Local10 reports on the case and links to Arbitrator Fischer's award here.

Sunday, May 22, 2016

CA9: Decision that an award is not "plausible" is insufficient to vacate

A dispute arose between Drywall Dynamics, Inc and the Southwestern Regional Council of Carpenters concerning attempts by the Company to withdraw from a multi employer bargaining arrangement. The Company's initial attempt to terminate its participation was rejected by the Union as untimely. A second rejection occurred after the association and the Union entered into a Memorandum of Understanding extending the cba for an additional year. In response to a grievance concerning the Company's claimed breach of the cba, an arbitration panel determined that the Company's purported withdrawal was untimely. 

The Union sought to confirm the award and the Company sought to vacate it. The District Court vacated the award, concluding that the arbitrator's interpretation of the agreement was not plausible, and that it was contrary to public policy.

On the Union's appeal, the Ninth Circuit has reversed. In doing so it recognized that language of several earlier opinions suggested that an award would be deemed to have drawn its essence from the parties cba as long as it was a "plausible interpretation of the contract." It determined however, that the plausibility inquiry did not authorize an independent basis for an attack on the merits of the award. Finding that the term was "somewhat misleading" the Court decided to eliminate its use. It concluded: is time for us to retire the use of "plausibility" as a term to describe the courts' role in reviewing labor arbitration awards. We do not, of course, propose any substantive change to the settled law in this area, nor could we. We merely reiterate, and emphasize, the fundamental concept  Hawaii Teamsters articulated, drawing on decades of Supreme Court jurisprudence: the quality—that is, the degree of substantive validity—of an arbitrator's interpretation is, and always has been, beside the point. Instead, the appropriate question for a court to ask when determining whether to enforce a labor arbitration award interpreting a collective bargaining agreement is a simple binary one: Did the arbitrator look at and construe the contract, or did he not?

Concluding that the panel's  analysis was grounded in a reading of the parties' agreement the Court found that the award was entitled to be confirmed.

The Court also rejected the Company's public policy challenges to the award which had claimed the award violated a policy of voluntary relationships between employers and multi employer associations and that it improperly imposed union representation on the Company's employees. 

The Ninth Circuit's opinion can be found here.

Sunday, May 15, 2016

Working below classification, seniority and management rights

These were the topics in issue in a recent award by Arbitrator Richard Beens.

 The dispute arose between Boise White Paper and Steelworkers Local 159 and involved interpretation of the parties' cba. The agreement had what the arbitrator described as a strong management-rights clause providing:

Section 3.1 The Company has the right to assign work to employees, irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way. Further, nothing contained in this Agreement including, but not limited to, the Recognition Article shall limit in any way the Company’s right to assign work to employees covered by this Agreement or to other employees not cover by this Agreement.

The Company and Union were parties to a separate Memorandum of Understanding which also addressed the assignment of work and was designed to enhance efficient operation of the facility. It was the relationship between these two documents that formed the basis for the Union's claim. Specifically the Union challenged Company's temporary assignment of bargaining unit employees to jobs below their attained position on the seniority ladder. 

The Progression Ladder which had previously been in place at the facility engendered what the arbitrator referred to as a "not my job" refrain from unit employees. The MOA was designed to address that perception and enhance the efficiency of a struggling operation. The Union claimed, however, that the MOA did not authorize the Company to temporarily assign employees downward, and claimed that such an assignment violated employees' seniority rights.

Arbitrator Beens rejected these claims, concluding:

The Union argues that the giving the Employer the right to assign downward nullifies the seniority provisions of the CBA. I disagree. Union members continue to accrue seniority during their temporary assignments and are only assigned to positions for which they are qualified, again as required by the CBA. The Union presented no evidence that [Grievant's], or any other Local 159 member’s, seniority or qualification status was in any way affected by a temporary assignment.


In summary, Article 3.1 gives the Employer broad rights to assign employees, “...irrespective of any past practices or previous agreements which purported to limit or reserve the types of work to be assigned to employees in any way.” The CBA, MOA, and Pay for Knowledge provisions relied on by the Union do not modify the Employer’s rights to make temporary downward assignments under Article 3.1. Base[d] on the clear, unambiguous contract language, I must deny this grievance. 

Arbitrator Beens' award can be found here.

Sunday, May 1, 2016

MD Court: Arbitrator exceeded his authority when he relied on a cba provision the County was not authorized to negotiate

Prince George's County, MD and the Prince George's County Police Civilian Employees Association were parties to a cba that included  language providing that covered employees were entitled to a notice of their eligibility to have a Union representative present prior to an investigatory interview.

Grievant was the subject of both a criminal investigation regarding alleged crimes and an internal affairs investigation concerning workplace conduct. Grievant was interviewed by employees of the Department's Criminal Investigations Division concerning the alleged crimes, and separately by the Department's Internal Affair's Division concerning workplace issues. Grievant was provided the requisite notice concerning the Internal Affairs investigation but not for the CID interview. Grievant's employment was ultimately terminated. An arbitrator overturned the dismissal, concluding in part that the failure to provide notice of grievant's eligibility for the presence of a Union representative during the CID investigation violated the cba and undermined the County's claim of just cause

The City sought to set aside the award, arguing, inter alia, that the award was against public policy. The Court of Special Appeals granted the County's request, concluding (in an opinion discussed in Weingarten and criminal investigations of employees) that the award was contrary to an explicit , dominant, and well-defined public policy of effective law enforcement. The Union appealed, and the Maryland Court of Appeals has now affirmed, but on different grounds. The Court described the issue before it as:

whether a county has the authority under the county's code to enter into a collective bargaining agreement requiring that, before a criminal investigative interview of one of the county's police civilian employees, the employee be advised of the right to have a union representative present at the interview—i.e., that the employee be advised of a Weingarten right in the collective bargaining agreement.

Concluding that the County had no such authority, the Court went on to decide that the arbitrator had therefore exceeded his authority by relying on a provision of the cba that was beyond the County's authority to enter into. It noted: 

In sum, a careful review of Maryland case law and authority from other jurisdictions leads to the conclusion that an arbitration award may be vacated where an arbitrator exceeded his or her authority and that an arbitrator exceeds the arbitrator's authority by issuing an award where one of the parties lacked authority to enter into the underlying contract. For the reasons set forth above, we conclude that PGCC § 13A-109(a) does not confer upon the County the authority to enter into a collective bargaining agreement requiring that a police civilian employee be advised of a right to have a union representative present before a criminal investigative interview by the Prince George's County Police Department.

In light of this conclusion the Court found it unnecessary to decide the public policy question addressed by the Court of Special Appeals.

The Court's opinion in Prince George's County Police Civilian Employees Association v. Prince George's County, Maryland can be found here.