Sunday, November 19, 2017

Quick Hits - Termination for Stalking, NLRB v. Arbitrator, Two tier contracts, and authority to appeal to arbitration

Arbitrator upholds termination of Sheriff's Deputy

Arbitrator Jeffrey Jacobs has upheld the termination of a Sheriff's Deputy accused of, among other things, stalking a woman he met on the internet, improper storage of his weapon, and possession of "injectable illegal drugs." The award can be found  here. During an investigation of the stalking complaint grievant's house was searched and police discovered drugs in his gun safe. An unlocked firearm was found in a knapsack by the entry door. Grievant was ultimately charged with stalking and felony level possession of illegal drugs.   He went to trial on the stalking charge and was acquitted. He entered an Alford plea on the drug charge, essentially acknowledging that the state had sufficient evidence of his guilt but not admitting to it. His employment was terminated, and the termination was submitted to Arbitrator Jacobs for resolution. Arbitrator Jacobs rejected the Union's argument that the acquittal on the stalking charge effectively cleared grievant of this offense. The arbitrator noted that the evidence produced at the hearing was sufficient to establish grievant's conduct and that the acquittal did not "absolve the grievant from any and all responsibility to the employer for the grievant's conduct." Similarly the arbitrator found no basis to conclude that the Alford plea somehow absolved grievant of responsibility for the possession of the legal drugs. Finally he also concluded that grievant's explanation for the unsecured weapon "rang particularly hollow."  With regard to the stalking issue, the Arbitrator acknowledged that, standing alone, this incident might not support termination. However, he found grievant's continued unwillingness to acknowledge the impact of his actions, and his claim that he had a first amendment right to contact the women made significant discipline appropriate. He concluded further that the possession of illegal drugs represented a clear violation of policy warranting discipline. Arbitrator Jacobs also agreed with the position of the County that the negative media attention these off duty incidents generated made them a matter of legitimate concern. Finding termination appropriate notwithstanding the absence of any prior disciplinary history, Arbitrator Jacobs noted particularly grievant's apparent lack of remorse. Grievant never acknowledged the wisdom surrounding the need to secure weapons, arguing that he did not think he needed to follow it. Finding grievant's responses generally "unapologetic" Arbitrator Jacobs concluded that grievant had not demonstrated any acceptance of responsibility and that "progressive discipline was shown not to apply in this unique scenario."

NLRB's unit determination prevails over arbitrator's contrary award

The District Court in Chicago has granted the request of Columbia College Chicago to vacate an award of Arbitrator Robert Perkovich, finding it contrary to a decisions of the NLRB. Part-Time Faculty Association v. Columbia College Chicago The issue arose from a dispute over the bargaining unit placement of certain full time staff of the College who also taught on a part time basis. The full time staff at the College were represented by United Staff of Columbia College Chicago (the Staff union).  Part time faculty were represent by the Part-time Faculty Association (PFAC). For some time, the full time staff who also teach (FTST) were paid the wages set forth in the PFAC Agreement but were not treated as part of that bargaining unit. In February of 2015, the Staff Union filed a petition with the NLRB seeking a self determination election among the FTSTs. The College opposed this petition, claiming in part that these employees were already included in the PFAC unit notwithstanding an exclusion from that unit of "full-time staff." The PFAC opposed inclusion of the FTSTs into their unit.  The Regional Director (here) dismissed the petition, concluding that the FTSTs were already included in the PFAC unit. PFAC sought review of the Regional Director's decision and also pursued a grievance to arbitration, contending that following the Regional Director' decision the College improperly and unilaterally granted the FTSTs bargaining unit seniority for times preceding the decision (and during which the employees had not paid dues). Arbitrator Robert Perkovich issued an award  concluding, as a matter of contract interpretation, that the FTST were not part of the PFAC bargaining unit. Arbitrator Perkovich determined "because the parties did not mutually intend to include the FTST employees in the bargaining unit ... the Employer violated ... [the] Agreement when it treated those employees as if they were in the unit." The College sought to vacate the award, and PFAC sought to confirm it. The District Court granted the College's request and denied that of the Union. The Court found that, on matters of representation, the Board's ruling "even if incorrect or unpersuasive" prevailed over that of an arbitrator.

Interest Arbitration panel won't impose two-tier residency requirement

An interest arbitration  panel, chaired by Arbitrator Marvin Hill, refused the request of the City of Springfield, IL to include in the police officers' contract a residency requirement applicable to new hires. The panel, with one dissent, was reluctant to impose a residency requirement where one had not previously existed, and was particularly disinclined to impose one limited to new hires. It noted that two tier provisions tended to be disruptive and were "disfavored." The award can be found here.

Union, not grievant, has  authority to appeal to arbitration

The Appellate Division of New York's Supreme Court reversed a trial court's decision and noted that pursuant to the express provision of the applicable collective bargaining agreement only the Union could appeal a case to arbitration. Since the Union had not done so the grievants demand "had no legal effect." Matter of Widrick

Sunday, November 12, 2017

Labor Arbitration in the News


Christie administration breached deal with Teacher's Union

The Washington Post reports on an arbitrator's award finding the City of Newark, NJ failed to follow its bargaining agreement with the Teacher's Union. Chris Christie’s administration violated teachers contract, arbitrator says. It’s going to cost a lot to fix. Arbitrator James Mastraini's award can be found here.

Police discipline, arbitration and public policy 

The Minneapolis Star-Tribune reports on an effort by the City of Richfield, MN to vacate an arbitrator's award reinstating a police officer whose employment had been terminated for allegedly using excessive force and failing to properly document his contact with the subject during his interaction. Richfield challenges arbitration system, saying it keeps problem cops on the job Arbitrator Charlotte Neigh overturned the termination, here, finding the force used by grievant was not excessive, and finding that failure to write a report of the contact was not an effort to conceal his actions but was unacceptable performance warranting a three day suspension.
The City maintains that the award is contrary to public policy The article links to the briefs of the City and the Union, and one of the several amicus briefs filed in the case. The article also links to a study by University of Minnesota law student Tyler Adams on Factors in Police Misconduct Arbitration Outcomes

Dispute over surviving spouse's pension benefit within jurisdiction of arbitrator

The Pennsylvania Supreme Court has upheld the jurisdiction of an arbitrator to determine the merits of a claim filed by the widow of a police officer who died while off duty challenging the City of Arnold's efforts to reduce the amount of the pension payable to the widow and seeking to recoup alleged excess payments. State Supreme Court: Arnold cop's widow entitled to half his pay The City had argued that the basis of the claim was statutory and therefore beyond the jurisdiction of the arbitrator. The Court found, however, that because the relevant statute was incorporated into the bargaining agreement the issue of interpretation of that statute was within the arbitrator's jurisdiction. The Court's opinion can be found here.

Arbitrator uphold termination of police officer for false reports

The San Angelo, TX Standard-Times reports on the decision of Arbitrator Ruben Campos upholding the"indefinite suspension" of a San Angelo police officer for allegedly falsely reporting her activities at a crime scene. Suspension of San Angelo police officer upheld Arbitrator Campos concluded that the City had established its claim and there was no evidence of mitigating factors warranting reversal of the decision.
Arbitrator Campos' award can be found here.

Sunday, November 5, 2017

Ninth Circuit-Award should be enforced even if it is "incorrect"

The Ninth Circuit, reversing the District court, has ordered the enforcement of an arbitration award between Holsum Bakery and the Bakery Workers. Holsum Bakery Inc. v. Bakery, Confectionary, Tobacco Workers, Local 232.  The dispute involved a claim by the Union that Holsum had breached the contract with the Union when it unilaterally ceased what the Union claimed to be a practice of paying "lap," or elapsed time, to certain employees.

The cba provided:

All non-voluntary hours scheduled or required to be worked by an Associate without a 12-hour break between shifts shall be paid for at time and one-half (1 1/2) the regular hourly rate ... for each  non-voluntary hour worked in the 12-hour (or 24-hour period on scheduled days off) ...

A prior arbitration between the parties addressed the issue of payment of lap time during weeks in which a holiday fell. After prevailing in that case, Holsum addressed what it claimed were inconsistent practices between supervisors concerning the payment of lap time in non-holiday weeks. The core of the dispute involved conflicting interpretations of what constituted  employees "scheduled days off." The Company claimed that schedules were posted every Friday for the following week, and that it had the right under the cba to vary employees' days off each week. The Union claimed that each employee had what was essentially a fixed "scheduled day off" regardless of the weekly schedule, and that lap time was owed for days an employee was scheduled to work on their "regular day off."

The dispute was submitted to Arbitrator Bonnie Prouty Castrey for resolution. The Arbitrator upheld the grievance, concluding that the contract language was clear and unambiguous, and the Union had established that employees had been paid lap time when they had been required to work scheduled days off. The Arbitrator's award can be found here.

Holsum sought to vacate the award, claiming that the award failed to draw its essence from the contract, that the Arbitrator had exceeded her authority and exceeded the scope of the issue presented, misapplied "basic principles" of contract construction in violation of public policy, and that the award manifested disregard of the law. The Union cross moved for enforcement.

The District Court vacated the award here. It concluded that the Arbitrator had "altered" rather than interpreted the contract, noting:

  Pursuant to the CBA, the Arbitrator does not have the authority to add to or alter the CBA. That is exactly what she did here. In Section 4D, the Company must post the next week's schedule each Friday. If every employee has  "regularly scheduled" time off, there would be no need to post a schedule. Additionally, Section 4A states that Section 4 "shall not be construed as a guarantee of hours of work per weaker days of work per week." ... The CBA clearly and unambiguously states that an employee shall be paid lap time if they non-voluntarily work on  "scheduled days off." The Arbitrator cannot arbitrarily add the word "regularly" to the CBA; "regularly scheduled days off" has a completely different meaning than "scheduled days off" as stated in the CBA, Section 4C. Here, the Arbitrator did not interpret the CBA; she modified it. Applying the plain meaning rule, the CBA needed no interpretation. ... To the extent the Arbitrator "interpreted" the CBA, she only "interpreted the meaning of "all" and "shall," neither of which were disputed by the parties. 

The Union appealed, and the Ninth Circuit reversed. Noting that an arbitrator's award must be upheld if the arbitrator is even arguably construing or applying the contract the Circuit concluded,  contrary to the District Court,  that this is what Arbitrator Castrey had done:

The arbitrator in this case concluded that the use of the word "all" in § 4.C of the CBA "means that every hour that is scheduled or required to be worked by an employee that is not voluntary is to be compensated." She also concluded that the specific language in § 4.C controlled over general language elsewhere in the CBA governing shift scheduling. And, the arbitrator found that, contrary to Holsum's assertions, employees did have regularly scheduled days off. Finally, she concluded that Holsum violated the CBA when it refused to pay "lap time" to "all employees who were scheduled or required to work on their scheduled day off." Because the arbitrator interpreted and applied the CBA in reaching these conclusions, the award, even if incorrect, drew its essence from the agreement.

Having determined that the Arbitrator's award may have misinterpreted the contract but didn't disregard it, the Court reversed and remanded, effectively confirming the award.

Sunday, October 29, 2017

Police officer "wasted" second chance. Domestic violence and related publicity supports termination

Grievant began his employment as a police officer with the City of Coral Springs, FL in 2005. In 2010 he was arrested and convicted of two counts of battery on a detainee and his employment was terminated. An arbitrator subsequently ordered his reinstatement but found significant discipline to be warranted and awarded no back pay for the approximately two years he was off the job. He returned to employment in December 2013.

On April 22, 2015, while off duty, grievant was involved in a "heated argument" with his wife. During the course of the argument grievant punched a hole in the wall and used a crowbar to deflate the tires on his wife's car.  Grievant was arrested for domestic battery and a "no contact" order was entered against him. The altercation was covered by the local news station, and the story included reference to his prior conviction and the current charge of domestic violence.

On April 28, 2015 a neighbor called 911 to report that grievant had entered the marital home. The Sheriff's Office arrived shortly after grievant's wife also arrived. The wife falsely informed the Sheriff's officers that her husband was not on the premises. Nevertheless, a SWAT team was deployed  and remained on the scene after an initial aborted contact with grievant. There was conflicting testimony about the amount of further contact with grievant. Grievant claimed he had not been aware that the SWAT team was outside the house. The City maintained that local officers had talked and texted with grievant and informed him that SWAT was outside the house and had advised him to cooperate with the Sheriff's officers. Ultimately grievant's wife texted him and persuaded him to come out of the house. Grievant was arrested for violation of the no contact order and was formally served with a restraining order for the April 22 incident.

Once again, local news stations were on the scene throughout and took pictures of the deployed SWAT team.

In early May, grievant's wife dropped all criminal charges against him and he was never convicted of domestic violence/battery.

Following an investigation, the City terminated grievant's employment, and that action was ultimately submitted to Arbitrator Martin O. Holland for review.

Arbitrator Holland upheld the termination.  He noted initially the importance of public trust in its police officers:

Police Officers have a widespread respect from the general public. The public recognizes the significant hazards and risks police officers face every day. Police officers are the first line of defense from attacks or criminal conduct. A police career provides good wages, pension and benefits. Public trust is paramount as police officers provide service and protection to their citizens. 

Addressing the conflicting testimony, Arbitrator Holland found grievant's claim that the had not been aware that the SWAT team was outside his residence "absurd." He also found grievant's testimony "flippant" and "pugnacious." Reviewing grievant's disciplinary history, the Arbitrator observed that following his earlier termination an arbitrator had reinstated him but found his past discipline "significant" and a "major infraction." Nevertheless, that arbitrator had given grievant a "second chance" to save his career.

On the merits of the current discipline, Arbitrator Holland also addressed the fact that the conduct in issue had occurred while grievant was off duty. Notwithstanding that, the Arbitrator found discipline appropriate:

Generally, off-duty conduct is not a basis for discipline. ThyssenKrupp Budd Co., 121 LA 164 (Goldberg, 2005)   Arbitrators consistently hold off-duty conduct as outside an employer's realm. However, because of the special nature of police employment, municipalities may impose discipline. Kitsap County, 118 LA 1173 (Gaba, 2003)   A police officer is always a police officer whether on or off duty. They often carry firearms and are expected to be a steward of public safety even off-duty. The City, here, enacted reasonable Rules and Regulations in General Order-4 spelling out the on-duty and off-duty expectations of its police officers.   Those rules and regulations are well-founded and universally applied throughout the United States. There is no surprise when a city enacts standards of conduct for both on duty and off duty conduct. Professional conduct is expected of all police personnel, 365 days per year and 24 hours per day. 

He also found that the absence of a criminal conviction was not dispositive of the grievance, noting that "Just cause is not defined by a criminal statute."

Upholding the termination, Arbitrator Holland concluded that grievant had "wasted" his second chance, finding:

The City's reputation was harmed by the actions of the Grievant. Widespread media reports of aberrant behavior by a police officer is conduct unbecoming.
 The seriousness of [grievant's] infractions of General Order - 4 warrants discharge. Multiple police calls, multiple arrests, and multiple investigations outweigh any mitigating factors. 

Arbitrator Holland's award can be found here.


Sunday, October 22, 2017

Arbitrator finds no contractual basis for claimed "constructive resignation"

Arbitrator Bruce McIntosh upheld a grievance filed by the Dayton Education Association on behalf of a teacher whose employment was terminated because of her alleged "constructive termination."

Grievant was involved in  an "altercation" with her principal which included "some physical interaction" between her and the principal. Following this altercation, grievant was placed on paid administrative leave. In May of 2016 the Dayton Board of Education notified grievant that it had received information that while on leave she had accepted employment with a local charter school effective April 1 of that year. The Board deemed the acceptance of a position with the charter school while grievant was on administrative leave a "constructive resignation." It notified grievant that it was terminating the leave and would be seeking reimbursement for all payments it made to her after April 1.

The Association grieved this action, arguing that there was no contractual basis for a "constructive resignation," that there was no prohibition on grievant accepting alternate employment while she was on leave, and that the District's actions amounted to a termination without the procedural protections of the collective barging agreement and was without just cause. The Board maintained that in seeking and accepting a position with an incompatible work schedule grievant had "indisputably abandoned" her job with the Board of Education and that she therefore had constructively resigned her position. It asserted that it was therefore not required to show just cause or otherwise provide notice to the grievant.

Arbitrator McIntosh agreed with the Union. He noted:

       A review of the CBA reveals that there [sic] it does not deal with paid administrative leave nor with constructive resignation. Additionally, there was no evidence of any restrictions placed on Grievant while on Leave except that she could not report to work and her presence on school grounds would be considered trespass. To assert that her employment by the charter school prevented her from being available for work with her former employer with the direction by it not to venture on the school's property, appears to be, at best, an anomaly.
       The Arbitrator is unable to finds any contractual basis for Grievant's acceptance for a separate school contract to be "good and just cause" for termination pursuant to [the cba].

Arbitrator McIntosh ordered the School Board to pay grievant for whatever wages she did not receive for the balance of the school year, less any sums she received from the charter school. The Arbitrator's award can be found here.

Sunday, October 8, 2017

Court: Employer waived interim earnings offset of back pay award by failing to raise the issue with the arbitrator


The Fraternal Order of Police, Lodge 10 grieved the termination of an employee of the State of Delaware. An arbitrator converted the termination to a suspension, ordered grievant's reinstatement, and directed the State to "[m]ake Grievant whole for all lost wages, benefits and seniority from the date of her termination, less the ninety (90) day period of time represented by the suspension."

Approximately nine months later the union filed a Petition to enforce the arbitrator's award. The State filed a Motion to Dismiss. The State did not seek to vacate or overturn the award. Rather, it sought a declaration from the Court that the term "make whole" used by the arbitrator required an offset of interim earnings. Alternatively, it requested that the issue be remanded to the arbitrator for clarification.  The Delaware Court of Chancery denied both of these requests. Noting the absence of any Delaware cases addressing the issue before it, which it described as "whether an arbitration award that is silent on the matter of the offset of interim wages should include an offset," the Court elected to follow the reasoning of the Seventh Circuit in International Union of Operating Engineers, Local No. 841 v. Murphy Co

The Court summarized the holding of the Seventh Circuit:

...if an arbitrator does not "mention offsets in his ruling it means that no offset was granted," especially when the defendant "knew or should have known that the issue of damages was before the arbitrator."... "To hold otherwise would only encourage employers to withhold evidence or comment on important issues, thereby undermining arbitration as a valuable tool for expeditiously and inexpensively resolving employer-employee disputes."[footnotes omitted]

The Court noted that the State had had ample opportunity to raise the offset issue but failed to address it other than to request that all of the Unions requested remedies be denied. The Court declined to adopt the State's argument that offsets of interim earnings is common in arbitration and the Court should assume that a "make whole" remedy includes an offset.

The Court also declined to order remand to the arbitrator, finding no ambiguity in the award. It concluded:

Defendant failed to ask the arbitrator to offset the back-pay award, and the arbitrator's silence as to offset in the Arbitration Award means that none was granted. Thus, there is no ambiguity that would allow me to remand the case back to the arbitrator for clarification.

The Court's opinion can be found here. A similar decision was reached by the Fifth Circuit in International Chemical Workers Union, Local 683C v. Columbian Chemicals Co.

Sunday, October 1, 2017

Termination of police officer for off duty DWI upheld



Grievant was employed as a Sergeant on the Litchfield, MN police department. The department consisted of a Chief and eight licensed officers. In the early morning of October 27, 2016, grievant, while driving off duty, was stopped by a Sheriff's Deputy. The Deputy administered a preliminary blood test that registered grievant's blood alcohol content at .146. He questioned grievant concerning whether he had drinking. According to the Deputy, grievant initially denied having been drinking but later claimed to have had two, or maybe three, beers a couple of hours earlier. Grievant was arrested and charged with "driving while impaired" (DWI). A blood alcohol test approximately two hours later placed grievant's blood alcohol content at .186.

Following an investigation, grievant's employment was terminated for violation of several Department policies, including "criminal, dishonest, or disrespectful conduct, whether on or off duty that adversely affects the members relationship with the department,"failure to maintain a current drivers license {grievant's license had been administratively revoked following the incident], giving false or misleading statements [related to grievant's denial of having been drinking when questioned by the Deputy], and conduct unbecoming.

The termination was grieved and ultimately submitted to Arbitrator Carol Tidwell for decision.

Initially, Arbitrator Tidwell found that the policies in issue were reasonable ones. She noted:

The arbitrator finds that the policies, principles, and procedures cited above which the Employer asserts were violated by the Grievant are all eminently reasonable, including the provisions that relate to off duty conduct. Police officers are charged with enforcing the law and their violation of the law, especially when this occurs in a public setting as is the case with a DWI violation on a public road, is especially harmful to the reputation and ability of the police to maintain law and order among the general population. This is just as true when the behavior occurs off duty. It is accurate, as the City’s rules state, that an officer’s ability to do his or her job is dependent upon the respect and confidence the local population has in the police. It is highly reasonable for the City to consider the potential effect that an officer’s behavior at any time, on or off duty, has on the community’s opinion of the officer and by extension the local police department, and to promulgate rules that require exemplary behavior of its officers at all times. 

She also found that grievant had in fact violated the rules. While the criminal charges against grievant remained pending, she found that the Department had established that grievant "was indeed driving his vehicle on a public road having consumed a large quantity of alcoholic a state of impairment ...," and had given false information to the Deputy who stopped him. Similarly she found that grievant's loss of his driver's license and the subsequent conditional reinstatement subject to an ignition interlock device posed legitimate safety concerns and would engender a negative reaction in the community. Grievant's actions, concluded the Arbitrator, were egregious and the impact that conduct  in a small community particularly severe.

Arbitrator Tidwell also found that the City had established that grievant "lied repeatedly" to the arresting Deputy. While agreeing with the Union that the existence of a Brady/Giglio disclosure obligation does not automatically require an officer's termination, "it does not mean that a Brady/Giglio officer must be retained in the Department if the Department cannot accommodate that officer."

Turning to potential mitigating factors, the Arbitrator noted grievant's prior alcohol related issues and his apparent unwillingness to confront his problem with alcohol. The Arbitrator also remarked on the absence of any other officer of the Department testifying in his behalf. She did, however, reject Department's contention that grievant's plea of not guilty to the DWI charge, and his action in contesting the validity of the claimed consent to a blood test, evidenced a refusal on his part to "take responsibility" for his actions, concluding:

The arbitrator is convinced ... that employees such as the Grievant in this case should not be effectively forced to forego their Constitutional right to a trial and to contest evidence against themselves in a criminal proceeding in order to maintain or regain their employment.

Finally the Arbitrator considered and rejected potential remedies short of termination. Demotion, she concluded, would remove his leadership responsibilities but would not address the violation of the standards of conduct expected of him. Reinstatement on a last chance basis, or after completion of an alcohol abuse program would of necessity be based on grievance's recognition of the need for such treatment and a willingness to undertake it, something she concluded he was not ready to do. In light of this she noted:


It is well-settled in labor matters concerning discipline that the punishment must fit the crime. The arbitrator concludes that upholding the Grievant’s termination meets this standard; indeed she concludes that it is the only appropriate remedy in this case.

Arbitrator Tidwell's award can be found here.  A case also addressing whether an officer's denial of acts of misconduct provide a basis for a charge of dishonesty is discussed at Police officer's denial of misconduct insufficient to establish untruthfulness

Sunday, September 24, 2017

Last Chance Agreements- Arbitrability of triggering event


Dontay Stokes was employed by Cenveo Corporation. In December of 2015, his employment was terminated for violation of the Company's Workplace Violence Policy. The termination was grieved and Cenveo and the Union (USW) entered into a Last Chance Agreement (LCA) in settlement of that grievance. The LCA provided:

I, Dontay Stokes, by affixing my seal and/or signature, acknowledge, in the presence of and witnessed by Cenveo management and USW Local 198G representation, that I have been issued disciplinary actions in accordance with progressive discipline guidelines as provided for in Cenveo Mt. Pleasant, PA Plant Rules. Additionally, I confirm that, I am subject to the last and final step of the progressive disciplinary process, which terminates my employment.

I am in complete agreement and understanding that this agreement permits me to continue as an active employee, on a non-precedent setting basis, at the Cenveo Mount Pleasant Facility, with the stipulation if I have a violation of Cenveo Workplace Violence Policy, in the next six (6) month period, that generates a warning, it will result in immediate termination. Further, I consent to waive all bargaining unit agreement rights to the grievance process regarding such termination and agree to hold harmless, Cenveo management, USW Local 198G and its officers or representatives for such actions with respect to such termination.
                                                                ***


Pursuant to the LCA, Stokes was reinstated. Thereafter his employment was again terminated when the Company claimed that he had threatened to physically harm a supervisor. Stokes denied making a threat and grieved the termination. Cenveo denied the grievance and also took the position that the grievance was not subject to arbitration because of the provisions of the LCA.

Cenveo filed a complaint with the District Court seeking declaratory relief and an injunction against arbitration. Cenveo and the Union filed cross motions for Summary Judgment. Judge Cathy Bissoon granted the Union's motion and denied that of the Company. Cenveo Corporation v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Intern'l Union. Judge Bissoon found that the factual dispute about whether grievant had made the threat was properly subject to arbitration. In doing so the Court relied in large part on the Third Circuit's decision in United Steelworkers of America v. Lukens Steel. In that case, the Court held that in a dispute where the LCA did not specify who would make the decision of whether the grievant had committed the offense alleged to have triggered the LCA, determination of that threshold question was properly submitted to arbitration.

Judge Bissoon found that Cenveo had not rebutted the normal presumption of arbitrability, noting:

Where a collective bargaining agreement contains an arbitration clause, there is a presumption of arbitrability. See United Steel Workers of America v. Century Aluminum of Kentucky, 157 Fed. Appx. 869 (6th Cir. 2005) (citing AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 650 (1986)). The presumption of arbitrability may be overcome, however, if the collective bargaining agreement contains an "`an express provision excluding a particular grievance from arbitration,'" United Steelworkers of America v. Lukens Steel, 969 F.2d 1468, 1474 (3rd Cir. 1992) ... . In general, "[s]ettlement agreements (such as the Last Chance Agreements) between parties to a collective bargaining agreement containing a broad arbitration clause are arbitrable when the underlying disputes are arbitrable, except when the parties expressly exclude the settlement agreements from arbitration." ...

Judge Bissoon rejected the Company's efforts to distinguish Lukens, and its claim that the LCA in this case waived not just arbitration of the propriety of the disciplinary penalty but rather "all" rights to arbitration. The Court agreed with the Union's argument that, because the LCA did not expressly state who would make the initial determination of whether the grievant had committed the offense alleged, there was no waiver of the right to arbitrate that issue. The Court noted:

Cenveo has not presented "strong and forceful" evidence that Stokes waived his right to arbitrate the threshold issue of guilt. Indeed, Stokes's agreement "to waive all bargaining unit agreement rights to the grievance process regarding . . . termination" could be interpreted as a waiver only of his right to arbitrate his termination in the event that an arbitrator finds that he has violated the Policy. Plaintiff relies on Sterrett v. Giant Eagle, Inc., 2015 WL 791401 (W.D. Pa. Feb. 25, 2015), but that case is readily distinguishable. ... . In Sterrett, the last chance agreement states: "In the event that plaintiff is determined by the Company to have committed any dishonest act . . . the Company will have the right to discharge [Plaintiff]." ... . In contrast, the LCA at issue here does not explicitly state who will determine the threshold issue of guilt. Instead, the LCA provides that "if [Stokes has] a violation of Cenveo Workplace Violence Policy, in the next six (6) month period, that generates a warning, it will result in immediate termination." ... Such language leaves open the possibility that it will be an arbitrator, and not the Company, that will determine whether Stokes violated the Policy. Because the language of the LCA can be read to support either the Union's or Cenveo's position, the presumption of arbitrability applies.

Other issues arising from Last Chance Agreements are discussed in Can an arbitrator disregard a last chance agreement?, Reinstatement with Conditions - Last Chance Awards, and Last chance agreement doesn't bar arbitration when union is not a party

Sunday, September 17, 2017

Quick Hits - Fundamental fairness, racial profiling and sex with a (former) student


The ongoing dispute about the discipline of Ezekiel Elliott

Dallas Cowboy Ezekiel Elliott was notified that he was suspended for six games. The suspension was related to allegations of domestic violence. The propriety of that discipline was submitted for review pursuant to the provisions of the cba between the NFL Players Association and the NFL. Even before a decision was issued, the NFLPA sought to vacate "the forthcoming Arbitration Award." The Union claimed that Elliot was being denied a "fundamentally fair" hearing and that important information had been withheld in the disciplinary process and from the "unilaterally appointed" arbitrator. On September 5, 2017 Harold Henderson issued his decision. (here) He described the appeal process under the CBA as "a unique exercise in labor arbitration." Henderson concluded that the Commissioner's decision was not arbitrary or capricious and that the process described in the cba had been "followed closely, step by step." Thereafter, the NFL filed a complaint in a different federal district seeking to confirm the award. The Sports Esquires links to the various documents and pleadings in the cases here. On September 8, 2017 District Court Judge Amos Mazzo granted (here) the NFLA's request for a preliminary injunction, enjoying the imposition of the discipline until a final decision could be reached on the petite to vacate. Judge Mazzant concluded;

The question of what happened between Elliott and Thompson in July 2016 is not before the Court. Nor is the Court making any credibility findings. As previously stated herein, the Court has a limited role in this case. The question before the Court is merely whether Elliott received a fundamentally fair hearing before the arbitrator. The answer is he did not. The Court finds, based upon the injunction standard, that Elliott was denied a fundamentally fair hearing by Henderson's refusal to allow Thompson and Goodell to testify at the arbitration hearing. Their absence effectively deprived Elliott of any chance to have a fundamentally fair hearing. The Court grants the request for preliminary injunction.

The NFL has requested a stay of Judge Mazzant's preliminary injunction and has indicted its intent to pursue the issue to the Fifth Circuit.

Update: Judge Mazzant has denied (here) the NFL's request for a stay. 

Arbitrator rejects discipline of Criminal Investigator for alleged acts of racial profiling

In September of 2015 several employees of the Oregon Department of Justice, including Grievant, were asked to trial a new software program the office was considering purchasing. Grievant was assigned to the Fusion Center, and his primary responsibility was to conduct threat assessments. The software being tested enabled a user to, among other things, do a word search on public Twitter accounts. As part of his trial, and unrelated to any pending investigation, grievant conducted a word search for "#blacklivesmatter" and "fuckthepolice." The software also had a geo-locate function which enabled grievant to view usage of the terms in the immediate area of his office. In doing so he discovered a twitter account with images of what appeared to be a police officer in the crosshairs of a rifle scope. Further search disclosed a substantial number of images "including political cartoons, personal photographs ... and other hashtags." Grievant was unaware of the person to whom the account belonged, but another employee identified that person as the Department's Civil Rights Director. Grievant notified his supervisor of what he had found and was ultimately instructed to prepare a memo about the discovered images. The memo was eventually shared with the Attorney General who asserted that grievant had engaged in racial profiling in his search terms. An outside attorney was hired to conduct an independent investigation, and grievant's employment was ultimately terminated. The asserted grounds for the termination were alleged violation Oregon Statutes prohibiting the collection and maintenance of "... information about the political, religious or social views, associations or activities of any individual, group, association, organization, corporation, business or partnership unless such information directly relates to an investigation of criminal activities, and there are reasonable grounds to suspect the subject of the information is or may be involved in criminal conduct," violation of the Department's Privacy Policy, and dishonesty during the investigation. Reviewing the termination, Arbitrator David M. Blair noted that while repeated references were made to alleged racial profiling, no such formal charge was leveled against grievant but the use of that label "most likely had a significant impact upon the Employer's decision to discipline the Grievant." Overturning the termination, and ordering grievant's reinstatement with back pay, Arbitrator Blair noted a number of "self inflicted wounds" by the Department:

(1) it ordered the Grievant to capture the images which are the subject of this grievance, (2) shared preliminary personnel information directly with [Civil Rights Director] Johnson, (3) shared preliminary personnel information with prospective campaign donors, and (4) shared preliminary personnel information with the media. It is of no surprise that the Employer set in motion a series of events that could have no other outcome than to deliver severe punishment for the declared perpetrator.

Arbitrator Blair also faulted the Department's introduction of a new tool with no guidance or training on its use. He found no evidence of any improper motive on the part of the grievant and nothing to support a finding of intentional deception. Regarding the charge of dishonesty, the Arbitrator noted:

As this matter involves a most damaging accusation of dishonesty against a law enforcement officer, the arbitrator specifically negates such charge and orders the removal of any and all such references from the Grievant's personnel file as it relates to this matter

Arbitrator Blair's award can be found here.

PA Supreme Court declines review of challenge to arbitrator's reinstatement of teacher

The Pennsylvania Supreme Court has declined to hear an appeal by the Cornwall-Lebanon School District of a decision upholding an arbitrator's reinstatement of a teacher who was dismissed for, among other claimed offense, having a sexual encounter with a student on the night of her graduation.

An arbitrator had found that while the teacher had significant interaction and communication with the student prior to graduation, the sexual relationship did not begin until she had graduated. He concluded, therefore, that the teacher did not have culpability for the relationship that took place after graduation and after the student was over eighteen. The Court of Common Pleas granted the School District's request to vacate the award, finding that even if the actual sexual encounter did not take place until after graduation the District had established that the teacher's conduct posed an unacceptable risk of undermining the School's legitimate policies, and that the award reinstating the teacher was contrary to public policy.

The Commonwealth Court reversed (here). It found that the lower court had improperly ignored the arbitrator's findings of fact and intruded into the arbitrator's authority to weigh the appropriate penalty. The Supreme Court has now denied the District's Petition for allowance to Appeal.













Sunday, September 10, 2017

Arbitration panel upholds denial of recall because of 13 year old conviction


A Public Law Board including Neutral Joan Parker has rejected a claim that CSX Transportation improperly denied recall in 2014 to a furloughed employee because of his arrest and plea of guilty to a charge of involuntary manslaughter approximately 13 years earlier.

Claimant was furloughed on October 16, 2001. On October 10, 2001, while off duty, he had pointed a gun at another employee and the gun discharged, killing the other individual. Grievant was arrested and subsequently pled guilty. He was released on time served (June 1. 2002 through August 6, 2002) and was required to complete six years probation.

Claimant received a letter dated September 18, 2014, informing his that he was being recalled, subject to a medical exam and a background screening. After completion of the background screening he was charged with violating CSX's rules concerning "Concealment of facts under investigation" and "Criminal conduct that may damage CSX's reputation or that endangers CSX property , employees, customers, or the public." The Union (IBEW) challenged that decision arguing that CSX had waited thirteen years to charge the claimant despite being aware of the incident in 2001, and claiming  that the employer's decision was an abuse of discretion.

The Board found that claimant was properly found to be guilty of CSX's charges, and that dismissal was the appropriate penalty. It found no evidence that CSX had been aware of the incident in 2001, but that in any event "even had the Carrier been aware of the events of 2001, it would have had no cause to bring charges against Claimant in relation to those events unless and until he sought to be returned to service -- something he might not have done after being furloughed, so that the matter would never have arisen." The Board also found that Claimant had failed to timely disclose his earlier arrest and conviction. It observed:

Claimant acknowledged that he understood the recall letter that  he had received, and thus knew that a background screening would be performed prior to his return to service. Moreover, he called Manager Tim Hill after learning that he had passed the medical examination, and was told by Hill that he had to pass a background screening.  An employee with a felony conviction - especially one involving a firearm and the death of another person - must as a matter of common sense, suspect that he will not pass such a background screening. As Claimant acknowledged  he did not ask Hill any questions. That Claimant did not discuss his criminal conviction with Hill is both telling and, the Board finds, in itself a violation of Rule 104.4's prohibition of concealing facts under investigation. 

The Board's decision can be found here.

Sunday, August 27, 2017

Arbitrator addresses conflict between California Kin Care law and collective bargaining agreement


A dispute arose between Southwest Airlines and TWU concerning the relationship between their CBA and the provisions of California's Kin Care law. Kin Care allows an employee to use up to one half of accrued sick leave to care for an eligible family member.

Grievant, a ramp agent, was scheduled to work his regular 1:30 pm to 10 pm shift on January 8, 2017. He had also agreed to work an earlier shift the same day from  5:15 am to 1:30 pm. He called in sick before starting work that day to take care of his ill son. It was undisputed that the reason for this absence fell within the terms of Kin Care.

The dispute between the parties arose from the Company's decision to treat all of grievant's missed time (i.e. both his regular shift and the additional shift, a total of 15.7 hours) as covered by Kin Care and to pay out sick leave accordingly.The Union claimed that the CBA limited sick leave to a maximum of 8 hours in any one day and sought to have the remaining hours returned to grievant's sick leave bank.

The dispute was submitted to Arbitrator Joshua Javits for resolution.

The Union argued that the payout exceeded the contractual maximum and was an attempt by the Company to improperly force grievant to exhaust his sick leave as quickly as possible. It maintained that an employee should be permitted to choose how much Kin Care leave he/she wanted to use during any period of absence. Southwest argued that it was required by statute to treat all work scheduled but missed as covered by Kin Care notwithstanding the contractual maximum. It noted that if it didn't cover all of the hours missed, any hours not covered by Kin Care would be treated under the CBA as unprotected and would subject grievant to being charged one disciplinary point for an absence other than for his own illness. It argued that Kin Care protections were not waivable by a collective bargaining agreement.

In reaching his decision, Arbitrator Javits noted initially that an arbitrator is ordinarily limited to considering only the language of the CBA. Here, however, the parties' agreement anticipated that any particular provision might be rendered invalid by subsequent legislation and that in that case the relevant provision should be deemed invalid. He noted:

The prevailing view among Arbitrators is that external laws and legislation that are not expressly incorporated by reference in to the CBA should not be treated as part of the parties’ CBA. Arbitration is generally considered a forum for interpreting and applying the contract - not a forum for enforcing statutory rights. Only in the most limited circumstances would the Arbitrator be prepared to void a contractual term in order to incorporate external legislation. To strike down a contractual provision, the Arbitrator would require compelling evidence that the external legislation was entirely incompatible with the parties’ contract. The burden of proof for declaring a contract term invalid in this way is high and is not easily met, the Arbitrator believes.

Accordingly he turned to the question of the interpretation and potential application of the Kin Care statute. Arbitrator Javits noted that there was a clear disagreement between the parties concerning the Kin Care requirements. The case also presented the somewhat unusual situation in which the grievant argued that he did not wish to take advantage of all that Kin Care may provide.

Arbitrator Javits concluded that Southwest had not presented the "compelling evidence " he deemed necessary to deny the grievance. While the Company had presented its own interpretation of what the law required he noted:

...this is only the Company's interpretation of how the Kin Care law is to be applied; there is no ruling from a state court/agency that definitively provides that the Company must enforce the Kin Care law in this manner. Absent such a ruling, the Arbitrator believes that he is compelled to follow the clear and express language of the parties’ CBA. For Arbitrators to apply potentially 50 different state laws to a nationwide contract would result in a chaotic situation, one that was never contemplated by the parties, the Arbitrator finds.

Accordingly, Arbitrator Javits agreed with the Union that the explicit language of the cba that "the maximum for which an employee will be paid [in sick leave] is one shift per day" should prevail.

The Arbitrator's award can be found here.     

Update:  Arbitrator Javits has granted (here) the employer's request for a stay of his decision pending receipt of guidance to the parties from California's Division of Labor Standards Enforcement. 

Sunday, August 20, 2017

Verizon ordered to arbitrate benefits claim


A District Court in Pennsylvania has ordered Verizon to arbitrate a grievance filed by Communications Workers of America claiming that the Company breached a contractual prohibition on "Making any changes in the Verizon Pension Plan or the Verizon Sickness and Accident Disability Benefit Plan which would reduce or diminish he benefits or privileges provided by the Plans for employees within the bargaining unit without agreement of the Union." Communications Workers of America, AFL-CIO, District 2-13 v. Verizon Pennsylvania, LLC

The Union asserted that Verizon had discontinued a practice of providing healthcare and life insurance benefits to terminated employees who were receiving accident disability benefits. According to the Union, per the applicable plan an employee terminated while receiving benefits is eligible to continue to receive benefits until the employee is no longer certified as disabled or has been paid the maximum amount of benefits under the plan.

The cba provides:

16.01 During the life of this Agreement the Company will not:

16.011 Make any change in the Verizon Pension Plan or the Verizon Sickness and Accident Disability Benefit Plan which would reduce or diminish the benefits or privileges provided by the Plans for employees within the bargaining unit without the agreement of the Union.

* * *

16.02 A claim that this Article has been violated may be submitted to arbitration under Article 10. A claim of an employee within the bargaining unit that they have been deprived of any benefits or privileges to which they are entitled under the Plans may be processed as a grievance under the provisions of Article 10, but shall not be subject to arbitration. However, nothing in this Agreement shall be construed to subject the provisions of the Plans or their administration or the terms of a proposed change to arbitration.

The Union's grievance claimed a violation of Article 16.011. Verizon refused to arbitrate, claiming that the grievance was a claim for benefits, expressly excluded from arbitration by the last sentence of Article 16.02. The Union filed a Petition to Compel Arbitration. The Court summarized the dispute before it:

At issue between the Union and Verizon is § 16.02 of the CBA. Verizon claims the Union's grievance is excluded from arbitration under the second and third sentences of § 16.02 because the grievance is merely a claim for benefits, which would require plan interpretation. ... Thus, Verizon argues that the remedy for former Verizon employees who claim to be denied benefits is the claims and appeals procedure outlined in SADBP § 9.1. ... In contrast, the Union contends that its grievance is arbitrable under the first sentence of § 16.02. ... The Union further takes issue with Verizon's construction and interpretation of § 16.02, claiming that Verizon's interpretation fails to take in account the distinction between claims being made by the Union on behalf of its members, and claims by individual members that they have been denied benefits.

Agreeing with the Union, the Court concluded that the dispute, as framed by the Union, was properly subject to arbitration. It noted:

...§ 16.02 makes a distinction between claims brought by the Union on a unit-wide basis, and claims by an individual that he or she has been denied benefits. The latter is not arbitrable because the second sentence of § 16.02 expressly carves it out of arbitration, stating that "[a] claim of an employee within the bargaining unit that they have been deprived of any benefits or privileges to which they are entitled under the Plans . . . shall not be subject to arbitration." (CBA § 16.02) (emphasis added). The second sentence of § 16.02 specifically states that a claim of an employee that he or she has been denied benefits is not subject to arbitration. Contrary to Verizon's interpretation, however, it does not necessarily follow that a claim by the Union on behalf of its bargaining members that there has been a reduction or diminishment in benefits is excluded from arbitration. If that were the case, then any claimed reduction in benefits would be excluded from arbitration and the second sentence of § 16.02 would swallow the first. In this case, we have a labor union that has made a claim of a violation of § 16.011 on behalf of all of its members. No other provision in the CBA or Article 16 forecloses that type of subject matter from arbitration. Accordingly, the Union's grievance is not excluded from the scope of the arbitration clause. [Footnotes omitted]

Finding no other "forceful evidence" that the parties intended to exclude grievances of this type from arbitration, and noting that it was making no decision on the merits of the Union's claim, the Court granted the Union's request to compel arbitration.

Sunday, August 13, 2017

Quick Hits - Deferral, neutrality, "flagrant misconduct" and excessive force


Court upholds NLRB’s refusal to defer to arbitrator

The Eight Circuit has affirmed an NLRB decision (available here) refusing to defer to an arbitrator’s award (here).  Cooper Tire had dismissed Anthony Runnion for his conduct on a picket line. Runnion had shouted racially charged comments to individuals crossing the picket line. Arbitrator Roger Williams upheld the termination, finding the conduct “. . . would have been serious misconduct in any context, but in the context of the picket line, where there was a genuine possibility of violence, his comments were even more serious.”  The Board concurred with the ALJ, finding the award “clearly repugnant” to the NLRA. Enforcing the Board’s decision, the Circuit Court rejected Cooper’s contention that the arbitrator’s finding of just cause demonstrated that the employee had been dismissed for “cause" within the meaning of the NLRA, and concluded that the Board acted within its discretion in refusing to defer to the award. Dissenting, Judge Beam would have “peremptorily reversed” the Board, noting:

When the Board unleashed its "repugnant to the purposes and policies of the Act" mandate in derogation of the arbitrator's rulings, it mentions not a single word of legislative language. That is understandable because there is none. Such purposes and policies are wholly of the Board's fabrication, done so to undergird, presumably, any whim and caprice that the Board may want to employ in arriving at its various conclusions. 

The Court’s opinion, and Judge Beam’s dissent, can be found here.

Arbitrability of neutrality dispute to be decided by arbitrator, not court

UNITE HERE and Shingle Springs Band of Miwok Indians were parties to a neutrality agreement concerning union organizing at the tribe’s Red Hawk Casino. The agreement provided for arbitration of disputes over “the interpretation and application” of the agreement. When two employees were dismissed, UNITE HERE sought to arbitrate their terminations, asserting that they had been dismissed because of the organizing activities in violation of the neutrality agreement. Refusing to arbitrate, the Tribe sought declaratory relief in the District Court. The Union sought an order compelling arbitration. 

Relying largely on the Ninth Circuit’s decision in Desert Palace, the District Court granted the Union’s request and ordered arbitration. On the arbitrability question the Court held:

Like the arbitration clause in Desert Palace, Section 10 of the MOA provides for arbitration of "any disputes over the interpretation or application of" the MOA (except for unresolved disputes regarding collective bargaining negotiations, which are not relevant here). (ECF No. 2 Ex. A at 7.) Thus, the parties have reserved for the arbitrator the question of arbitrability. The Court is "divested of [its] authority and [the] arbitrator will decide in the first instance whether [this] dispute is arbitrable." Desert Palace, 94 F.3d at 1310.

The Court dismissed the tribe's request for declaratory relief.

The Court’s opinions can be found here and here.

Court finds arbitrator’s award "clearly contrary" to the weight of the evidence, upholds termination 


The MO Court of Appeals affirmed a lower court’s refusal to enforce an arbitrator’s award reinstating an Assistant County Prosecutor accused of misleading the court and failing to meet his discovery obligations. International Association of Firefighters, Local 42 v. Jackson County  In overturning the termination, the arbitrator found that while grievant had committed “very serious” misconduct, termination was too severe because of the absence of any prior discipline and what he found was an “anything goes” atmosphere in the prosecutor’s office.

 After the award, and as allowed under the parties cba, the County Prosecutor and County Executive reviewed and reversed the award and upheld the termination. Affirming that decision the Court concluded:

When Mitchell intentionally and repeatedly lied to the court, he violated fundamental and obvious standards of professional conduct. Mitchell's misconduct was a "self-evident case[ ] of exceptional severity"; under the arbitrator's own analysis, progressive discipline and notice requirements were inapplicable to this egregious misconduct. The history of prior attorney discipline — or lack of discipline — in the Prosecutor's Office to which the arbitrator referred was insufficient to absolve Mitchell of responsibility for his flagrant misconduct, or immunize him from the appropriate consequences for that misconduct.
Given the arbitrator's findings that Mitchell intentionally and repeatedly lied to the court, his conclusion that Mitchell's immediate discharge was unwarranted was "clearly contrary to the weight of the evidence, viewed in its entirety." The Prosecuting Attorney and County Executive acted within their authority under Article VI, § 3(C) of the collective bargaining agreement in modifying the arbitrator's decision, and reinstating Mitchell's discharge.

Update: The Court of Appeals has issued a similar ruling involving another prosecutor International Association of Firefighters, Local Union No. 42 v. Jackson County

Correction Officer used excessive force, but termination too severe

  A Cuyahoga County Corrections Officer was dismissed for allegedly using excessive force against inmates on two separate occasions.  Arbitrator Robert Stein concluded that in the first incident there were mitigating factors that explained, but did not excuse, the officer's conduct. Regarding the second incident, occurring two days later, Arbitrator Stein found grievant's use of force "clearly excessive" and found that grievant had unnecessarily escalated the situation. Reviewing grievant's prior history the Arbitrator noted that while  a prior incident in which grievant had used uneccesary force raised a question of whether progressive discipline would correct grievant's behavior, his  recent performance appraisals were favorable. Each of these factors had to be weighed in determining the level of discipline that would be appropriate. Moreover,  Arbitrator Stein observed:

Finally, a determination in this matter cannot be done in a vacuum. It  also need to be tempered by the current mores of our society and the very real level of scrutiny that law enforcement and public employers face, which includes corrections. Over the past several years the media has frequently reported on examples of what is alleged and at times proven to be the use of excessive force in situations involving the treatment of those stopped by law enforcement, arrested and in held custody. While many of these reported situations only deal with a small fraction of interactions between law enforcement and the public, and are often inaccurately reported upon and become the subject of considerable distortions, some are real examples of abuse and result in public employers having to bear considerable liability for assuring their treatment of all people in their custody.

Weighing all of these factors, Arbitrator Stein concluded that while discipline was appropriate grievant should be reinstated without back pay. The arbitrator's award can be found here.

Sunday, August 6, 2017

Marriott challenges arbitrator's award on applicability of neutrality/card check agreement, impact of successorship language


Marriott International and Starwood Hotels & Resorts Worldwide were both members of a multi-employer Hotel Association and were  bound by an Industry-Wide Agreement (IWA) between the Association and the New York Hotel and Motel Trades Council.

During negotiations for the IWA effective July 1, 2012, the parties agreed to modify the impact of an earlier decision concerning the scope of the neutrality/card check provisions of the IWA. As set forth in a Stipulation of Facts:

During the negotiations for the 2012 IWA, the Union and the Hotel Assn. Bargaining Group Hotels  agreed that, in return for the Union not insisting on the unlimited temporal and geographic scope of the Parsippany Award, the Union and respective hotel chains would separately negotiate for certain hotels to be immediately covered by card check neutrality organizing under Article 60/Addendum IV even though the managerial, ownership and control interest preceded February 3rd 2012.

Both Marriott and Starwood reached agreements with the Union  identifying certain hotels that would be immediately subject to the card check/neutrality proven of the IWA. Per the Starwood side agreement, certain other of its hotels, including the W Hoboken and the Westin Jersey City Newport, would not be subject to neutrality/card check.

In September of 2016 Marriott completed its acquisition of Starwood. Thereafter, the Union sought to organize the W Hoboken and The Westin Jersey City under the card check/neutrality provisions of the IWA and the Marriott side agreement. The Union claimed that these hotels had been "acquired" by Marriott after February 3, 2012 and that they were therefore subject to neutrality/card check. In contrast, Marriott maintained that it acquired Starwood in a stock transfer, that Starwood continued to exist, albeit as an indirect wholly owned subsidiary of Marriott, and that all of Starwood's labor agreements remained in place. It pointed to the successorship  successorship language of the IWA which provided:

This Agreement shall be binding upon the successors and assigns of the parties hereto, and no provisions, terms, or obligations herein contained shall be affected, modified, altered, or changed in any respect whatsoever by the consolidation, merger, sale, transfer, or assignment of either party hereto or affected, modified, altered or changed in any respect whatsoever by any change any kind in the legal status, ownership, or management of either party hereto....

 and the related provision of the Starwood side agreement.

The dispute was submitted to Impartial  Chairperson Elliott Shriftman for resolution. Chairperson Shriftman concluded:

It is beyond,  or should be beyond, debate, that if the only agreements to be considered by the Chairperson are the 2012 IWA and the May 29, 2015 Side Agreement between Marriott and the Union, Marriott's acquisition of any hotel, not excluded from the latter, if falling within the geographic contemplated by the IWA, and occurring after February 3. 2012 would give the Union the absolute right to expect Marriott to comply with the card check neutrality provisions of the IWA as regards the W Hoboken and the Westin Jersey City Newport. This is made abundantly clear in Article 60(B0(1) of the IWA and Addendum IV.  Marriott, in fact, acquired those two hotels after February 3, 2012.

Responding to Marriott's argument regarding the successorship provision of the Starwood agreement, Chairperson Shriftman concluded:

The successors and assigns clause in the Starwood Agreement was plainly designed to benefit the Union and bind any purchaser of the named hotels subject to Article 60 and addendum IV should they be sold prior to the Union's invocation of those provisions. It was not intended to create an exclusion to the benefit of Starwood or any subsequent owner. These words, drawn from the Starwood Agreement, make plain that they were not to be enjoyed by a subsequent buyer. "...based on Starwood's ownership, management or control interest therein which predates February 3, 2012."

Accordingly, the  Chairperson directed Marriott to "promptly comply" with the Union's card check demands

Marriott has sought to vacate the award, claiming, inter alia, that the Chairperson has "evidenced a manifest disregard" for the terms if the Agreement, ignored its plain language, is contrary to public policy, and fails to draw its essence from the agreement.

Marriott's complaint, and the Award of Independent Chairperson Shriftman, can be found here.

Sunday, July 30, 2017

Assignment to light duty and seniority issues - Court upholds arbitrator's award

The PA Commonwealth Court has upheld an award of Arbitrator Mark McCloskey in connection with a grievance filed by the Allegheny County Prison Employees Independent Union against Allegheny County.

The issue before Arbitrator McCloskey was whether the County violated the seniority provisions of the cba when it assigned an employee to light duty and gave him work schedules and pass days that had been denied to more senior employees.

Because of a work related injury, Samuel Pastore was assigned to light duty positions, first as a security camera monitor and later in Internal Affairs. He was designated as a "Floater" and was granted an ongoing Monday through Friday 7:00 am to 3:30 shift with Saturday and Sunday as his "pass days" or days off. The dispute in this case arose when the Union claimed that Pastore's light duty assignment did not entitle him to bypass the bidding process.

The County argued that it retained the managerial prerogative to create light duty assignments, and that this right included "those tangential terms and conditions of employment which might otherwise constitute bargainable items ...." While agreeing that the creation of light duty assignments were a managerial prerogative, the Union asserted that shift assignments were still subject to the cba.

Arbitrator McCloskey sustained the grievance, concluding that the County could not award Pastore work schedules or pass days that had been denied to more senior employees.  The County sought to vacate the award, but the trial court upheld it in all respects. The County appealed to the Commonwealth Court which has now affirmed.

Applying the "essence test" the Court concluded :

The County exercised its managerial prerogative and assigned Pastore to a light duty position; Pastore was designated as a Floater while holding that position, and that status did not change.Pursuant to the CBA, officers who are Floaters express a preference for shift and pass days based on seniority. Because Article XXX provides for correctional officers in a light duty status to express their choice of shift and pass days according to their seniority and because Article XXVIII allows Floaters to express their preference for pass days which are awarded based on seniority, the CBA arguably addresses the situation of assigning shift and pass days to a Floater on light duty and subjects that situation to the seniority bidding process. Thus, the Arbitrator's Award, which relies on these provisions, is rationally derived from the language of the CBA. Moreover, the Arbitrator's Award does not direct the County to cease assigning Pastore the light duty position, nor does it necessarily eliminate Pastore's Saturday/Sunday pass days. Rather, the Award directs the County to cease assigning Pastore work schedules or pass days while denying those days to more senior members. The Arbitrator's interpretation can be reconciled with the language of the CBA, and it is not the role of this Court to override that determination by reinterpreting the CBA. Accordingly, we may not vacate the Award. [footnote omitted]

The Court's decision can be found here.

Sunday, July 23, 2017

Two recent cases discuss the appropriate standard of proof, progressive discipline and just cause


Two recent cases, reported by Minnesota's Bureau of Mediation Services, address the question of the appropriate standard of proof in a discharge case.

In Hennepin Healthcare System, Inc., grievant had been dismissed from his position as a Protection Officer in the Hennepin County Medical Center, allegedly for striking a patient. At the arbitration hearing, the Union argued that the Medical Center should be held to a "clear and convincing evidence" standard in its effort to prove just cause.

Arbitrator David S. Paull agreed, noting:

Since the issue is the propriety of Mr. Williams’ discharge, the appropriate standard of proof is, as the Union suggests, clear and convincing evidence. Pursuant to this standard, the County is obligated to supply sufficient proof to show that the existence of its assertions of fact is highly probable. The standard is equally applicable to the Union with regard to its affirmative allegations.

Finding that the Medical Center had met this burden is establishing the facts of the incident, Arbitrator Paull turned to the appropriateness of the penalty. While recognizing that
the parties had agreed on a system of progressive discipline, Arbitrator Paull nevertheless found the facts sufficient to warrant an exception to progressive discipline if the discipline otherwise met the standard of just cause. Concluding that it did, he observed:

First, the nature of the conduct was both inappropriate and flagrant. In striking the patient while all of his limbs were in restraints, Mr. Williams clearly violated the applicable rules and his training. There is sufficient evidence to connect Mr. Williams’ behavior with his state of mind. The record shows that Mr. Williams was angry about being called in on that afternoon. It is reasonable to conclude that he permitted his anger, at least in some substantial degree, to dictate his actions.
Second, the failure of Mr. Williams to admit to striking the patient does little to advance his case. The essence of a penalty reduction in a discharge case is the likelihood that the employee will recognize his error and take steps to correct it. The chance of this occurring is lessened, however, in cases in which the employee refuses to admit to the mistake.


Arbitrator Paull found grievant's failure to take responsibility for his actions, his past demonstrations of temper and the nature of the act outweighed his otherwise good record and, accordingly, denied the grievance.

In Minnesota Department of Corrections the grievant, a corrections officer, was dismissed for allegedly assaulting, while off duty, a person engaged in an argument with his sister. Grievant was charged with assault but was subsequently acquitted of this charge.

At the arbitration the Union sought to have the Arbitrator impose a "clear and convincing" standard of proof on the County, both because it involved a termination and also because it involved claims of criminal acts. Arbitrator A. Ray McCoy accepted this position, concluding:

The Union argues that the Employer should be required to meet the clear and convincing standard of proof that it had just cause to terminate the Grievant. The arbitrator believes that a clear and convincing standard of proof is appropriate. Imposition of the clear and convincing standard is often applied in recognition that discharge is the ultimate penalty that can be issued by an employer. Discharge, in an immediate and fundamental way, throws the employee’s life into disarray including future employment prospects. The arbitrator accepts that the Union wishes to impose a very onerous burden on the Employer to make sure the Employer resorts to discharge only in cases where the evidence is clear that the employee engaged in misconduct.

Notwithstanding this burden, however, Arbitrator McCoy found that the DOC had established just cause for dismissal. Initially he noted that the acquittal of the criminal charges did not translate to an absence of just cause. While there may have been reasonable doubt of defendant's criminal responsibility, the Union had not effectively countered the DOC's proof in the arbitration hearing. He wrote:

The arbitrator’s focus, however, was on determining whether the Employer provided clear and convincing evidence that it satisfied its’ contractual “just cause” requirement. In doing so, the arbitrator took great pains to identify any evidence proffered by the Union that demonstrated that the Employer’s evidence should not be relied upon. In other words, casting doubt or blaming someone else doesn’t have the same level of importance in the arbitral proceeding as it might in a criminal one. It was incumbent upon the Union to do more than merely cast doubt or blame others. While it is the Employer’s burden to prove just cause, the Union cannot simply sit back and say our version of the events is more believable. The Union will need to demonstrate that the evidence put forth at the hearing by the Employer is simply inadequate, unreliable, or just plain false.

Finding nothing in grievant's work history to mitigate the penalty of termination, and noting instead prior instances of untruthfulness, Arbitrator McCoy denied the grievance.

Similar issues are addressed in Conflicting views on the appropriate standard of proof in termination cases, Acquitted of criminal charges, but just cause for dismissal, Off duty misconduct, just cause, burden of proof and leniency, Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer, and Arbitrator rejects termination of Sheriff's deputy based on allegation of theft, but finds post termination shoplifting warrants suspension

Sunday, July 16, 2017

Choke holds, use of force, public policy and arbitration

The Massachusetts Supreme Judicial Court has rejected an effort by the City of Boston to set aside an arbitrator's award reinstating a police officer who had been dismissed for allegedly using excessive force and then lying about it during an internal investigation.  City of Boston v. Boston Police Patrolmen's Association

On March 16, 2009, Officers David Williams and Diep Nguyen were dispatched to a the scene of a minor accident. While the officers were dealing with the situation, Michael O'Brien, one of the individuals involved, began filming the interaction and allegedly refused instructions to get out of the street. Officer Nguyen decided to arrest O'Brien who struggled and resisted efforts to handcuff him. Officer Williams came to the aid of his partner and "tackled" O'Brien, forcing  him to the ground using what he described as a "semi-bear hold." Officer Nguyen described the method used as a "choke hold." O'Brien was charged with resisting arrest, disturbing the peace and assault and battery on a police officer.

On March 19, 2009 O'Brien filed a complaint with the internal affairs division. The complaint was assigned to an officer but little investigation was done and, in May, O'Brien's counsel withdrew the complaint. O'Brien filed a lawsuit in September alleging unreasonable use of force, unconstitutional arrest and assault and battery. The following day counsel filed another internal affairs complaint. In January of 2010, O'Brien's counsel complained of inaction on the complaint and in April 2010, an initial interview of the officers involved took place. In February 2011Williams was placed on administrative leave. A second round of IAD interviews took place in March 2011, and in June 2011. Nguyen was exonerated but two specifications were issued against Williams. The specification alleged that Williams had engaged in the unreasonable use of force and was untruthful during the internal affairs investigation. Trial board hearings were held in November and December 2011 and on January 18, 2012 Willams' employment with the Department was terminated.  The  termination was grieved and on June 20, 2013 Arbitrator Michael Ryan issued an award upholding the grievance. (here)

Arbitrator Ryan, observing that the case ultimately turned primarily on credibility issues, found that the City had not established that Williams had used excessive force, even if he had used a choke hold. He found several factors undermined O'Brien's credibility, i.e. his intoxication, his concern for the impact of the incident on his future employment prospects, and the absence of objective physical evidence supporting his version of events.

Arbitrator Ryan noted further that "choke holds" were not specifically prohibited by the Department's use of force policy. While finding Williams conduct aggressive, he concluded that it was warranted by the circumstances. Accordingly, he concluded that the City had establish neither that Williams had not used excessive force nor that he had been untruthful during the investigation.

The City sought to set aside the award, but the Superior Court rejected this effort. The Mass. Supreme Judicial Court granted direct review and affirmed.

The Court held first that the arbitrator had not exceeded his authority by intruding on the nondelegable powers of the police commissioner to discipline officers. It found no precedent suggesting that  nondelegable matters extended to "core matters of discipline and discharge" and that the parties agreement to arbitrate disputes concerning discipline left the issue squarely within the arbitrator's authority. It next rejected the City's claim that the award was contrary to public policy. While recognizing that public policy clearly prohibited police use of excessive force, the Court noted that, in light of the facts as found by the arbitrator, there was no violation of public policy in this case. Given the deferential standard of review of arbitration awards, the arbitrator's findings that choke holds were not specifically prohibited by the Department's policies, and his conclusion that Officer Williams use of force was reasonable in the circumstances, the Court concluded that the award must be upheld. It noted, however, that "[h]ad the city prohibited choke holds as excessive force, an arbitrator who found a choke hold reasonable would have exceeded his authority." The Court also noted that the extended delay in the Department's investigation of O'Brien's claim of excessive force undermined the City's claim that public policy compelled termination.

In a concluding section describing what it called "prospective guidance," the Court observed:

First, it is incumbent on the city to clarify its own policies with respect to excessive force and specifically choke holds if it does not wish in the future to relinquish interpretive control of that term.
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Second, the city must investigate allegations of excessive force with substantially more alacrity than was evidenced here. Pursuant to its own existing rules, the department owes a duty, both to the public and to its own officers, to investigate allegations of excessive force thoroughly and promptly. As with the tension between a choke hold's dangerousness and the commissioner's desire to retain discretionary review of their use, it is difficult to reconcile the department's position that an officer's use of a choke hold requires termination with its protracted inaction in this case. [footnote omitted]

The Court also expressed concern about the impact of its decision, but ultimately suggested that any solution was a legislative one:

Last, we are troubled by the prospect that any use of force not explicitly prohibited by a rule of conduct is essentially unreviewable. It is difficult to fathom why we elevate the values of "expediency" and "judicial economy" so high as to eclipse the substantive rights of citizens who have no seat at the bargaining table. We recognize, of course, that public employers may or may not choose to adopt rules for the protection of the public from the excessive use of force. Without the benefit of such rules, however, arbitrators remain free to find reasonable any level of force that does not explicitly require termination. Absent legislative authority for a broader review of arbitration decisions, we are constrained in our ability to review the use of excessive force by public safety officials.