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. 

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.

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.

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.