Sunday, July 31, 2016

NHL seeks to vacate Wideman award, discharges arbitrator

The NHL recently announced that it was seeking to vacate the award of Arbitrator James Oldham that reduced the suspension of Calgary Flames defenseman Dennis Wildeman from 20 games to 10. Wideman had been suspended for 20 games for allegedly intentionally striking an opposing player. Arbitrator Oldham concluded that Wideman lacked the intent to injure and that the conduct was more appropriately  subject to a 10 game suspension.

The collective bargaining agreement between the NHL and the NHL Player's Association contains a newly negotiated right of appeal to a Neutral Discipline Arbitrator. Pursuant to the cba, the NDA

...shall determine whether the final decision of the League regarding whether the Player’s conduct violated the League Playing Rules and whether the length of the suspension imposed were supported by substantial evidence.

The NHL's complaint alleges that the arbitrator exceeded his authority by "disregarding the standard of review set forth in the CBA" and improperly conducting a de novo review of the suspension.

The Players' Association has filed a Motion to Dismiss or, alternatively, to confirm the award.

It has also been reported (NHL Dismisses Neutral Discipline Arbitrator Who Reduced Wideman's Suspension) that the NHL has discharged Arbitrator Oldham, as it may do under its collective bargaining agreement.

Sunday, July 24, 2016

Arbitrator: Fight on school grounds warrants dismissal even if no students are present

The Respondent in a teacher tenure proceeding was a tenured support staff employee of the Pleasantville, NJ school district. While she was working at the office of the vice principal another employee came to the office to deliver an item to the vice principal. Aware that this employee had recently been promoted to Director of the C.A.R.E program, Respondent asked the other employee why she had not been included on the C.A.R.E. provider list. The employee responded that "everyone knows she ... does not like children."

A short time later, Respondent approached the employee and asked her about the remark. An exchange of words escalated into a physical confrontation and the two "started to wrestle, punching, and pulling hair" until they were separated by security.

As a result of this incident the district filed tenure charges against both employees. Respondent was charged with participation in a physical altercation that "interfered with the quality of the educational and professional environment of the school, the students' education" which "created an unsafe working environment for other District employees."

The charge was submitted to Arbitrator Lewis Amis for resolution.

Arbitrator Amis rejected Respondent's contention that she had only been defending herself, concluding that she had become "too deeply embroiled" to avoid responsibility. While she had not been the first to become physical, she had become "fully engaged."

Finding the tenure charge supported by the evidence, Arbitrator Amis upheld the dismissal, concluding:

It goes without saying that violence in any workplace need not be tolerated. That principle is especially relevant in an educational setting where a core value should be the use of reason as opposed to irrational force to resolve differences. The Respondent's argument that there were no repercussions from the altercation that affected the pedagogical and administrative stability of the district, is without merit. Even though there were no student witnesses, the fight was a public event in a public school setting, and it was highly publicized. The district had no choice but to respond firmly, as it did. The Respondent's dismissal, therefore, will be upheld. 

Arbitrator Amis' award can be found here.

Sunday, July 17, 2016

Arbitrator's reinstatement of employee terminated for violation of workplace violence policy not contrary to public policy

Grievant was employed by the University of Chicago Medical Center as a custodial assistant. A coworker of grievant reported to UCMC's HR department that on several occasions grievant had referred to his supervisor as a "bitch" and stated he wanted to choke or strangle her. After conducting an investigation, the Medical Center dismissed grievant. That action was submitted to arbitration for resolution.

The arbitrator concluded that grievant made the statements he was alleged to have made, but that these comments, while serious, did not warrant dismissal. He ordered the Medical Center to reinstate grievant without back pay.

The Medical Center sought to vacate the award, claiming that the reinstatement order was contrary to Illinois' public policy against violence in the workplace. It argued that if grievant were reinstated he may make similar statements in the future, or even act on threatening statements, and that other employees may be deterred from reporting threats or acts of violence.

The District Court rejected this effort. It noted:

These same arguments have been advanced by employers in other cases, and they have consistently been deemed insufficient to show that a grievant's reinstatement violates a public policy against workplace violence. Notably, UCMC has not cited a single case, and I have found none, in which a court has found the public policy against workplace violence to have been violated by an employee's reinstatement. Indeed, even in cases involving conduct ostensibly more threatening than [grievant's], courts have steadfastly refused to vacate arbitration awards based on public policy.

The Court observed that the arbitrator had, at least implicitly, made a determination that grievant would pose no threat to others if returned to work.

In light of the arbitrator's factual findings, and the narrow scope of the public policy exception, the Court denied the Medical Center's request to vacate and granted the Teamsters request to confirm

The opinion of the Court in University of Chicago Medical Center v. Int'l Brotherhood of Teamsters can be found here.

Sunday, July 10, 2016

Arbitrator erred in refusing to consider evidence of blood alcohol content

The cba between the Monroe County Sheriff's office and the Monroe County Deputy Sheriff's Association provided that in reviewing disciplinary action, "the arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence."

Grievant, a Deputy Sergeant, was terminated after his involvement in a one car, rollover accident, after which it was determined that he was driving while intoxicated. He was charged with five violations:

(1) failure to obey Vehicle and Traffic Law § 1192 (3), DWI; (2) failure to obey Vehicle and Traffic Law § 1192 (2-a) (a), aggravated DWI with a blood alcohol content of .18 percent or greater; (3) failure to obey Vehicle and Traffic Law § 1192 (2-a) (b), aggravated DWI with a child in the car; (4) failure to obey Penal Law § 260.10 (1), endangering the welfare of a child; and (5) engaging in conduct unbecoming of his position.

disciplinary hearing was conducted during which grievant was represented by the Sheriffs' Association. The hearing panel unanimously sustained all five charges. On review, the arbitrator found certain evidence, including the chemical test establishing grievant's blood alcohol content at .18 percent, was inadmissible.  As a result, the arbitrator dismissed charges 1 and 5. On the remaining charges, the arbitrator found that other employees engaging in similar conduct had not been terminated, and reduced the termination to a demotion. 

The Sheriff's Office appealed the award, and the trial court vacated the award, finding that the arbitrator had exceeded his authority by improperly neglecting to consider evidence received at the disciplinary hearing. Accordingly it vacated the award and ordered a rehearing before a different arbitrator. 

On the Union's appeal the Appellate Division has recently affirmed the lower court's decision. The Court held:

...we conclude that the arbitrator clearly exceeded his authority as provided by the CBA. The CBA mandated that "[t]he arbitrator shall review the record of the disciplinary hearing and determine if the finding of guilt was based upon clear and convincing evidence." Rather than comply with that mandate and review the record from the hearing, the arbitrator considered a portion of the record only, deciding to exclude certain evidence from his review. Having failed to review that which he was required to review, the court properly concluded that the arbitrator exceeded his authority and vacated the arbitration award ...

The court also rejected the Union's claim that the court erred in ordering a rehearing before a different arbitrator.

The Court's opinion can be found here.