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.