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.

Update: The Seventh Circuit has affirmed the District's Court's decision here.

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

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.

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.