Quick Hits - Exhaustion of remedies, a full day's work, improper touching and revoking a resignation

DFR plaintiffs failed to pursue internal union remedies but case to be held in abeyance pending internal appeal

In what describes as "a case about process," the Sixth Circuit has reinstated a DFR/301suit against the UAW and Chrysler dismissed by the District Court (here) for failure to exhaust internal administrative remedies. Slight v. Local 12, United Automobile, Aerospace, and Agricultural Implement Workers of America, et al. Plaintiffs filed suit claiming that the Union had wrongfully withdrawn their grievance that Chrysler had not properly paid them. The District Court granted summary judgment to Chrysler and the UAW, finding that plaintiffs had failed to utilize the appeal procedure set for in the UAW constitution The Circuit agreed that plaintiffs had failed to exhaust their internal union remedies, but remanded with instructions to hold the case in abeyance while an internal appeal was pursued. The Court rejected plaintiffs claim that exhaustion would be futile, noting that an agreement between UAW and Chrysler authorized reinstatement of a withdrawn grievance if the withdrawal was overturned pursuant to an internal union appeal. It noted also that the International President had the authority to waive the time limits for filing an appeal and that "[t]here's good reason for the president to waive the time limits here since the employees failed to file an appeal because the union official told them (erroneously) that 'its too late to file an appeal,' and to' get a lawyer instead." Concluding that the Union's internal appeal process may provide plaintiffs with the remedies they seek, the Court remanded the case with instructions to hold it in abeyance while an appeal is pursued.


Arbitrator rejects claimed conflict between pension regulations and cba
Sanitation employees of the Town of Cheektowaga, NY worked under a cba that provided for an incentive system that allowed them to end their shift after six hours "with the satisfactory completion of their assigned routes or districts." According to the Union, a practice had developed pursuant to which employees staring at 6 a.m. would leave work at 11. The union maintained that these employees were eligible for two 15 minute breaks and a half hour for lunch which they didn't take, thereby meeting their six hour requirement. In February 2017, the Town advised the employees of a change in pension reporting it attributed to a directive from the State Controller's office. The Town informed employees that the state required work days of a minimum of six hours to be eligible for full pension credit and that employees who left prior to 12 noon would be given only prorated credit. The Union grieved this action, claiming a unilateral modification of the incentive system. Arbitrator Howard G. Foster sustained the grievance. Initially the Arbitrator rejected the Employer's position that the grievance was not arbitrable. He noted that the Union was not claiming that the arbitrator should ignore the State's requirement that employees work six hours to receive pension credit, but rather "that the reporting method that the Town used consistently before February 2017 was not in conflict with the regulations, since it was a standard work day of at least six hours." On the merits, he found that the Town had not established that the method the Union claimed was a past practice was in fact contrary to State requirements. Upholding the grievance, he noted:

I conclude from this record that there is nothing in the communications from the State resembling a "directive" from the State Comptroller, as stated in the February 1, 2017, letter. Nothing in those communications asserts to the Town that the work day, including break times, that has become the practice in the Sanitation Department does not qualify as a six-hour day within the meaning of the Comptroller's regulations. Should there be an authoritative determination from the Comptroller that the work day as established by the parties' practice does not in fact constitute a six-hour standard day as contemplated by the regulations, then the Town would be free to require that employees remain at work for the mandated six hours in order to receive full service credit. But such a determination, on the record before me, has not been made. Under these circumstances, the operation must be controlled by the parties' bargain.

The Town sought to have the award vacated, but the court rejected that effort. Arbitrator Foster's award can be found here, the Court's decision here.


Court upholds arbitrator's award revoking teacher's tenure for improper touching of students

In Dunkley v. Board of Education, Rockaway Township the NJ Appellate Division refused to set aside an arbitrator's award revoking a teacher's tenure. The teacher was alleged to have engaged in the inappropriate touching of two teenage special needs students. Arbitrator Andree McKissick upheld the teacher's removal (here) . He found the teacher's acts in this case, and conduct for which he was previously warned, warranted revocation of tenure. On the teacher's challenge to the decision, the Chancery Court, and now the Appellate Division, refused to vacate the award. Both courts rejected the teacher's argument that the arbitrator failed to consider the results of an investigation by the State's Department of Children and Families that found no sexual abuse. The Appellate Division affirmed the finding of the lower court concluding "[t]hat plaintiff was not charged with sexual abuse does not mean his conduct of inappropriate touching was [an] [in]sufficient basis to terminate him."


City did not constructively discharge employee by denying request to revoke resignation

A police officer in Hibbing MN, upset over an argument with his girlfriend, notified his Captain of his intent to resign. The Captain advised the officer to seek a psychiatric consult, which he did and which found situational depression but no need for a psychiatric hold. Later that evening the officer called the chief and agains stated his intent to resign. He was advised that he should not resign over the phone but should come in the following morning. He did so and after some discussion filled out the necessary paperwork and submitted his resignation. The next morning he expressed a desire to rescind his resignation. While the Chef did not object, the City Mangaer who had the final decision, elected not to accept the attempted revocation. The Union grieved that decision and the dispute was submitted to Arbitrator Stephen Befort. Arbitrator Befort denied the grievance. He rejected the Union's claim that the resignation could not stand in light of grievant's mental state. Reviewing the applicable principles, Arbitrator Befort noted:

As a matter of general principle, a voluntary resignation that is accepted severs the employment relationship in a matter that is not considered a discharge. Elkouri & Elkouri, How Arbitration Works 15-9. Arbitration decisions also have ruled that an employer has the right to accept or reject an attempted retraction of a resignation for any reason, Transcon Lines , 40 LA 469 (1963); Borden Co. , 38 LA 425 (1962) and that an employer's exercise of discretion to decline a retraction does not convert voluntary resignation into a constructive discharge, Fairmont General Hospital, Lab. Arb. Awards (CCH) 02-2 at 3199 (2001).

The Arbitrator concluded that despite his emotional turmoil, grievant acted in a calm and deliberate manner in resigning and did so for reasons that evidenced a rational thought process. While he ultimately regretted his decision, grievant's mental state "did not invalidate his resignation or the ability of the Employer to accept that resignation."

Arbitrator Befort's award can be found here.

Grievance timelines, threats in the workplace and public policy

All of these topics are discussed in the recent decision of the Eleventh Circuit in Peco Foods Inc. v. Retail Wholesale and Department Store Union Mid-South Council.

The case originated with the termination of an individual alleged to have made a threat of violence during a Company safety meeting. During the meeting, the supervisor advised the employees that individuals on the prior shift had been throwing ice, and reminded the employees that such conduct was contrary to Company policy. Grievant responded "I don't throw ice, I throw lead." Several employees laughed at this response. The supervisor reported this comment to his supervisor, and sometime later that morning grievant was called to a conference room where he as questioned about the comment. Grievant admitted he had made the comment but stated he hadn't meant anything by it. In response to a stewards question, grievant's supervisor acknowledged that he had not felt threatened by the comment but reported it because of a recent workplace shooting at another company. At the conclusion of the meeting grievant was sent home for the day. The next morning, grievant's employment was terminated. The termination was grieved and ultimately submitted to Arbitrator William H. Holly for resolution.

At the arbitration, the Company argued that the Arbitrator did not have jurisdiction to hear the dispute because the Union had waited too long to appeal the case to arbitration. The cba required an appeal to be made "within fifteen (15) calendar days of . . . [Peco's] answer at Step 3 of the grievance procedure." The Union had filed its appeal thirteen days beyond that deadline. On the merits, the Company maintained that grievant's undisputed comment was "tantamount to a workplace violence threat"and that based on recent workplace violence incidents any discipline short of termination would not be justified.

The Union argued that the parties did not have a history of strict adherence to timelines and that the Company had not raised this issue until the arbitration. It also argued that the termination of a long service employees for this comment was unjustified since the comment was not threatening, was not directed at any individual, was made in a lighthearted tone, and was not perceived as threatening by anyone present.

Arbitrator Holley, after reviewing the facts and a number of prior awards and treatises, sustained the grievance. He first concluded that the Company had waived any reliance on the Union's delayed appeal to arbitration. He observed:

In thus matter, the Company fully participated in meetings after the Step 3, in selecting the arbitrator, and in establishing a place, time, and date for the hearing without mention of a procedural defect in the processing of the Grievance. Therefore, the conclusion is that the Company accepted the grievance and waive[d] its challenge to the Grievance procedural arbitrability.

On the merits, the Arbitrator found

In this matter, [Grievant] was not specific; he did not direct his words at anyone; no one considered his words to "be threatening", even his supervisor; no one called the police; he was not sent home immediately; he apologized for making the statements a short time after he made the statement. [Grievant] could not explain what he meant because it was a "stupid" comment, but short of a threatening comment.

Peco sought to vacate the award, both as beyond the jurisdiction of the arbitrator because of the Union's untimely appeal and as contrary to "public policy against violence and threatening behavior in the workplace." The District Court (here) and now the Eleventh Circuit (here) rejected these efforts. Both found that the decision concerning the Employer's waiver of the time limits to be within the authority of the arbitrator. The Eleventh Circuit concluded:

We therefore agree with the district court that the arbitrator was acting within his broad discretion to interpret and apply the terms of the Agreement in concluding that Peco waived its challenge through its conduct. See, e.g., Mosher Steel, 796 F.2d at 1366 (courts must "uphold an arbitrable award that is premised on the arbitrator's construction of the contract and his understanding of the intent of the parties") (quoting Drummond, 748 F.2d at 1497).

  Both the District Court and the Eleventh Circuit also rejected the Employer's public policy claim, noting that the Arbitrator had found that no "threat" had taken place.  On  this point, the Circuit noted:

Peco's public policy argument rests entirely upon its assertion that [Grievant's] comment about "throwing lead" was a threat of workplace violence. But the arbitrator found that [Grievant's] statement was not a threat of violence, and this Court is not permitted to second-guess the arbitrator's findings of fact. ...  That is because "[t]he parties did not bargain for the facts to be found by a court, but by an arbitrator chosen by them." ... Nor are we permitted to second guess the arbitrator's findings of fact merely because we are "inquiring into a possible violation of public policy."

While upholding the arbitrator's award, the Court refused the Union's request for attorney fees, finding the Company's appeal meritless but not frivolous.

Arbitrator Holley's award can be found here.

Police use of force - arbitrator reinstates officer who "stomped" on suspect

On April 8 2017 Grievant arrived on the scene of another officer attempting to subdue a fleeing subject. According to the grievant, he observed the officer "wrestling" with the subject, flipping him on to his stomach and attempting to handcuff him. Grievant stated that one of the subject's hands was cuffed, but the other was free and the subject was continuing to resist. Coming to the aid of the officer, grievant "took his left foot and stomped down on [the subject's] left shoulder area to pin him to the ground." Grievant subsequently stated the he believed his actions were necessary because of the information he had received that the subject was armed and that shots had been fired in the area. The subject was arrested and, pursuant to Department policy, grievant filed a Use of Force Report. A Department Sergeant conducted an investigation, which including viewing a video that  had been taken of the incident  She found grievant's actions within Department policy. She noted that once the subject was secured grievant did not followup with any additional strikes. She also noted that the video was inconclusive as to whether grievant's boot actually made contact with grievants face. Grievant's Sergeant, Lieutenant and a Commander also concluded that, while there may have been other issues which should be reviewed with grievant he had not used excessive force. Review continued up the chain of command, with the Deputy Chief disagreeing with the conclusion that grievant's actions were within policy. The matter moved to the Chief who held a hearing, affirmed the Deputy Chief's conclusion that grievant had used excessive force, and determined that a 24 hour (three day) suspension was warranted. A further hearing was then held before the Director of Public Safety who issued a final decision, not accepting the Chief's recommendation concerning a suspension but raising the discipline to termination.

The termination was grieved, and the matter was submitted to Arbitrator Mitchell Goldberg.

Arbitrator Goldberg sustained the grievance in part.  He found grievant used excessive force:

It is clear, however, that the Grievant’s stomp or kick to the upper shoulder area with sufficient force to cause the momentum of the leg or foot to contact the suspect’s neck and head area is an untrained technique. Moreover, I find from the evidence, that because the Grievant had other less-excessive force options available to him, his use of an untrained technique amounted to excessive force that was a violation of policy, directives and the law.

 However, Arbitrator Goldberg also found termination too severe a penalty. He found that the grievant had been genuinely  concerned about the other officer's safety and that grievant believed that the application of force was required because the subject was armed and needed to be cuffed to prevent harm to others. He concluded that while grievant used more force than was necessary he had no intent to injure the subject. Contrary to the Director of Public Safety, Arbitrator Goldberg further found no evidence that grievant had engaged in any deliberate deception or coverup about his use of force. He noted that grievant "chose to stand by his original, but later established misguided and misjudged response to his perception." Finding termination unwarranted, Arbitrator Goldberg observed:

I find that the Grievant’s past good work record, and his performance at the highest rewarded level, combined with his intelligence level, is persuasive evidence that he has the ability to adjust his actions to conform with policies and directives in the future as they relate to his use of force in bringing dangerous suspects under control. I agree with the Chief’s finding that his use of an untrained level of force in this situation justified serious discipline that warranted an out of sequence penalty, but not the most severe penalty of a termination from his employment.

  
Accordingly he reduced the termination to a three day suspension, the penalty initially considered appropriate by the Chief. 

Arbitrator Goldberg's award can be found here. The report of the award in the Columbus Dispatch  links to a video of the incident here.

Same sex marriage, timeliness of a grievance and election of benefits

The Pennsylvania Commonwealth Court has denied the appeal of the Gateway School District seeking to overturn an arbitrator's award allowing a retired teacher to add his spouse to his medical benefits. Gateway School District v. Gateway Education Association

Grievant had retired in June of 2013 after more than thirty years service. While he had been in a same sex relationship for more than seventeen years, he was not allowed to add his partner to his retirement health care benefits. At that time neither the cba nor Pennsylvania law recognized same sex marriages. As a result, grievant elected single coverage. In 2014, after a federal district court in Pennsylvania found the failure to recognize same sex marriages unconstitutional, grievant married has partner. He then requested the School District add his spouse to his retirement health insurance coverage. The District refused, noting that at the time of grievant's retirement the cba had not recognized same sex marriages, and relying on what it claimed was its long standing practice of not allowing changes in a retiree's medical benefits even if the retiree remarried or married for the first time after retirement.  Grievant brought this issue to the teachers union, and a grievance was filed in January 2016.

The grievance was pursued through the grievance/arbitration process and an arbitrator ultimately upheld the grievance. The arbitrator rejected the School District's claims that the grievance was untimely and that past practice supported its decision, The arbitrator concluded that grievant "must be granted the same retiree benefits as other married couples at the District's expense. This would be as if they had elected the same married couple coverage at the time of retirement."

The School District unsuccessfully sought to vacate the award in Common Pleas court, and the Commonwealth Court has now affirmed the lower court's refusal to set aside the award.

Concerning the timeliness issue, the Court noted that the decision on this procedural issue was within the authority of the arbitrator, and that the arbitrator's award  "interpreted the deadlines specified [in the cba] .... to run from such time as it was possible for the Grievant [to] act." The arbitrator had observed that the decision on whether to pursue the grievance took place "in an ever changing legal environment until same-sex  marriage finally became law," and, moreover, the School District had not raised the timeliness issue during the grievance process. Given the limited scope of review of an arbitrator's award, the Court found no basis to overturn that decision. The Court also rejected the School District's argument that the arbitrator had improperly refused to accept the District's past practice argument. The arbitrator had considered but rejected the past practice claim, noting that the change in the law regarding same sex marriage represented a change in the conditions upon which the practice had been based.

Finally, the Court rejected the School District's challenge to the award as contrary to the "impairment of contracts" provision of the US and Pennsylvania constitutions, concluding that the change in circumstances caused by changed constitutional determination by the courts did not alter the parties' contract. The changing legal environment "merely changed Grievant and his partner's legal right to be married, and affected the arbitrator's interpretation of the CBA  ... ."

Accordingly the Court affirmed the lower court's decision, effectively enforcing the award.

Arbitrator Fabian's award can be found here.