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

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.

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.