Sunday, October 16, 2016

"Union member-union" privilege, grievance time limits - two recent cases

Mass. SJC rejects union privilege

In Chadwick v. Duxbury Public Schools, the Massachusetts Supreme Judicial Court has rejected an effort to have the country recognize a "union member - union privilege,"  at least beyond the labor dispute setting. Plaintiff, a union represented teacher, and a former local union president, sued her employer alleging discrimination and retaliation. When the School sought discovery, plaintiff objected to several of the requests, asserting that any discussions or communications she may have had with her Union were covered by a union member - union privilege. The trial court rejected plaintiff's privilege claim. The SJC has now decided what it described as an issue of first impression, i.e.

whether an employer, in defense of a lawsuit alleging discrimination in employment filed by a union member, may demand communications between the union member and her union representatives or between union representatives acting in their official capacity. 

Affirming the lower court's decision, the SJC declined to create such a privilege. Initially it found that nothing in the statutory language granting public employees the right to bargain over wages, hours and terms and conditions of employment implied such a privilege in the context of a civil action not directly connected to the collective bargaining context. 

The Court also found no basis to create such a privilege as a matter of common law. Declining to adopt the reasoning of the Alaska Supreme Court in Petersen v. State (discussed herethe Court observed that the creation of such a privilege was best left to the legislature. 

Maine Supreme Court - Arbitrator improperly ignored time limits on grievance processing

The Maine Supreme Court in  State v. Maine State Employees Association, SEIU Local 1989 reversed a lower court ruling and concluded that an arbitrator had exceeded her authority by deciding a case appealed to arbitration beyond the deadline established by the cba. 

The applicable contract called for requests for arbitration to be submitted within 15 days of receipt of the Step 3 decision. Because of the absence of two employees who normally handled these appeals, the Union requested a "break" from the employer on enforcement of timelines.  The employer responded:

Of course we will work with you/MSEA while the Member Support Specialists are out. I will notify everyone in this office and the Department HR directors that we are waiving time requirements form[sic] 8/27 through 9/13.
Let's plan to pick up the timelines on Monday 9/16. We can touch base later if this needs to change.

The Step 3 decision in this case was received on August 29. The appeal to arbitration was submitted  on October 22, more than fifteen work days beyond September 16. 

The employer challenged the appeal as untimely, but the arbitrator concluded that the employers response was not "so exact or precise" as evidenced by its commitment to touch base later if needed, and that it would be unfair to the grievant to deny her a hearing based on the actions of a temporary employee unfamiliar with the process. The arbitrator then proceeded to the merits, reducing grievant's termination  to a written reprimand. 

The State sought to vacate the award, but the lower court refused. On the State's appeal, the Supreme Court concluded: 

By attributing to the State an agreement to waive deadlines beyond the date to which it in fact consented, and then enforcing a waiver that is necessarily deficient under the CBA, the arbitrator, in effect, re-wrote the terms of the CBA. Instead, under any "rational construction" of the CBA, ..., MSEA's Step 4 arbitration request on behalf of [grievant] cannot be viewed as timely. Because the arbitrator's contrary determination represents a "manifest disregard" of the CBA, the arbitrator exceeded her powers and—reasoning that it would be unacceptable" if [grievant] were denied an arbitration hearing under the circumstances presented here—imposed her "own individual concept of justice." 

The Court remanded the case for entry of a judgment vacating the award. 

The issue of timeliness in grievance processing is also discussed here and here.

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