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 Plaintiffs filed suit claiming that the Union had wrongfully withdrawn their grievance that Chrysler had not properly paid them.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claim that exhaustion would be futile, noting that an agreement between UAW and Chrysler authorized reinstatement of a withdrawn grievance if the withdrawal was overturned pursuant to an internal union appeal.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.