Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies

   
Chicago Tribune, LLC v. Teamsters Local Union No. 727 (ND Ill.)

The Chicago Tribune seeks to vacate an Award of Arbitrator Amedeo Greco. Arbitrator Greco upheld a grievance claiming that the Company refused to pay employees "gap time" pay the Union claimed was required by the cba and past practice. The Tribune's Complaint asserts that the Arbitrator exceeded his authority and improperly modified the cba "when he gave legal effect to a past practice which finds no support in the clear and unambiguous terms of the CBA."  According to the complaint:

Despite the fact that the CBA does not provide for the payment of ten hour gap time pay to a driver for performing work during the driver's scheduled day or night shift, the Arbitrator wrote such a requirement into the CBA and disregarded the limitations on his authority.


Rockwell Collins, Inc. v. International Brotherhood of Electrical Workers Local 1362 (ND Iowa)

Arbitrator Robert Grey sustained a grievance filed by IBEW Local 1362, concluding that Rockwell Collins violated its CBA when it unilaterally outsourced the Custodian and Led Custodian classifications at its Cedar Rapids facility. (Award) Rockwell Collin’s  has filed a Complaint seeking to vacate the award, alleging that the arbitrator "ignored or went beyond the plain text of the collective bargaining agreement and essentially rewrote the collective bargaining agreement creating requirements on Rockwell Collins that did not exist in the agreement as negotiated by the parties."



The Harrison County Coal Company v. United Mine Workers and United Mine Workers Local 1501 (ND WVa)

The Company seeks to vacate an award of Arbitrator Thomas Hewitt sustaining a grievance claiming that the Company had improperly outsourced the installation of a belt drive. The Arbitrator rejected the Company's argument that the installation of a "new, never before used' belt drive was construction work which it could contract out. Arbitrator Hewitt concluded that "the building, installation and moving of belt drives is a totally protected activity at this mine ... ." The Company's  complaint  asserts that the Arbitrator exceeded the scope of his authority, that his award failed to draw its essence from the cba, and that his award of monetary remedies in the circumstances of the case was contrary to "binding arbitral precedent."'


The Monongalia Coal Company Mine Workers and United Mine Workers Local Union 1701

United Mine Workers and United Mine Workers Local Union 1701 v.The Monongalia Coal Company

These two cases involve the same parties, but address different disputes.

Monongalia County Coal Company seeks to vacate an  Award of Arbitrator Ralph Colflesh, finding the Company breached its contract with the UMW when it outsourced certain cabling work at its mine. He found, however, that no bargaining unit employee lost wages as a result because they were either working when the work was performed or had declined the opportunity to work.

Nevertheless, in light of his finding of a contract violation he “join[ed] Arbitrator Drucker in awarding damages to to the Union for this breach, and concur with the principle implied in her award that in general every sustained grievance must have some remedy.” In contrast  to Arbitrator Drucker, he declined to award compensation to employees, noting his belief that employees should not be rewarded for not working when they had the opportunity.” (Arbitrator Drucker’s award can be found here; the Company’s complaint to vacate that award here.)

Instead he ordered the Company to pay the Union its costs for preparing and presenting the grievance, including any legal fees incurred in the grievance preparation, as well as the per hour cost of the union advocate who presented the case at arbitration. In its Complaint  to vacate the award, the Company alleges that the Arbitrator “expressly rejected binding precedent” and exceed his authority by ordering payment of the Union's expenses which the contract required be borne by the union.

In its Complaint, the UMW seeks to vacate an Award of Arbitrator William Babiskin denying a contracting grievance. The Arbitrator declined to address the merits of the grievance because he found that there was no financial loss to any employee. Arbitrator Babiskin noted: " I am a strong believer in the principle of 'no harm, no foul." The Union's complaint asserts that the Arbitrator ignored "the plain language" of the agreement, denied the Union a fair hearing, and instead relied on his own notions of industrial justice to deny the grievance.

Update: The Court's decisions in the coal cases are addressed in  Coal Industry Decisions - Construction or maintenance, remedies for contracting, and "production of coal". The Rockwell Collins case was dismissed as settled. The Court in the Chicago Tribune case rejected the Company's request to vacate the award. It observed that "The Tribune's quarrel is not with the arbitrator's award but rather with its interpretation of it." It granted the Union's request to confirm the award but noted that a determination of whether there were any damages requires further proceedings. Chicago Tribune, LLC, v. Teamsters Local Union No. 727

Postal Service ordered to restore Union leave for partisan political activity

Arbitrator Stephen Goldberg has issued an award finding that the Postal Service breached its agreement with the American Postal Workers Union (APWU) when it unilaterally made changes to its Employee and Labor Relations Manual to prohibit Union Leave without pay for purposes of engaging in partisan political activity.

The Service's action was triggered by a report of the Office of Special Counsel asserting that leave for that purpose was prohibited by the Hatch Act. (OSC Report) 

The OSC investigation was triggered by a complaint submitted by Senator Ron Johnson, Chair of the Senate Committee on Homeland Security and Government Affairs. The Senator had received information from a constituent that thePostal Service was incurring unnecessary overtime costs by granting LWOP for employees to participate in election activities sponsored by the AFL-CIO. These activities included door-to-door canvassing, phone banks, and "get out the vote" efforts.

The OSC recommended that the Postal Service expressly prohibit use of LWOP for partisan political activity.

Following OSC's recommendation, the Postal Service modified its ELRM to specifically prohibit use of LWOP for partisan political activity and to require employees applying for such leave to certify that it wouldn't be used for such purposes.

APWU grieved the Service's actions, asserting that they were contrary several provisions of its CBA, including a Section that provided:

The leave regulations in Subchapter 510 of the Employee and Labor Relations Manual, insofar as such regulations establish wages, hours and working conditions of employees covered by this Agreement, other than PSEs, shall remain in effect for the life of this Agreement.

The CBA also required notice and consultation prior to any changes not otherwise inconsistent with the agreement. 

The grievance was appealed to arbitration, and NALC and the National Postal Mail Handlers Union intervened.

 Sustaining the grievance, Arbitrator Goldberg rejected the Postal Service's argument that its action was compelled by the report and that the dispute was therefore not subject to arbitration. He noted:

The Postal Service argument fails to take into account the limited authority vested in the OSC. As the Unions point out, the OSC does not have the power to determine whether a violation of the Hatch Act has occurred, much less to determine an appropriate remedy for such a violation. OSC is authorized only to investigate allegations of Hatch Act violations, to prosecute alleged violations before the Merit Systems Protection Board, and to issue advisory opinions. It is only the Merit Systems Protection Board which has the authority to determine whether a violation of the Hatch Act has occurred, and if so, to impose an appropriate penalty. An opinion or allegation by OSC of a Hatch Act violation is thus without legal effect, and, contrary to the Postal Service assertion, may be ignored without penalty.
                                                              ***

There exists no basis for inferring that the arbitration provision of the National Agreement was intended to exclude any dispute in which the arbitrator’s decisionmay create the risk of legal proceedings against one of the parties.

For much the same reason, the Arbitrator found the Service's actions were inconsistent with its contractual obligations:

The OPS [sic] does not have the authority to enforce the Hatch Act; only the Merit Systems Protection Board possesses that authority. Hence, the OSC opinion that the ELM violated the Hatch Act is not that of a court (or agency) of competent jurisdiction, and the Postal Service may not rely on the OSC ruling as a defense to the otherwise valid Union allegations that the PostalService’s changes in the ELM violated Articles 5, 10.2, and 19 of the Agreement.

While noting that he was making no determination as to whether the OSC's view might ultimately prove correct, he ordered the Postal Service to rescind the changes to the ELM and make whole any employee who was disciplined or whose LWOP request was denied because they indicated they were requesting "union time" to engage in partisan political activity.  

Facebook postings grounds for dismissal of police officer, but delay in City's response warrants backpay

Arbitrator Eric Lindauer has found that the City of West Linn, Oregon was justified in terminating a police officer because his Facebook posts contained "what reasonably could be viewed as racist comments." Arbitrator Landauer's award can be found here.

He rejected the Union's claims that the City's policy was ambiguous and failed to adequately inform the employee that his Facebook postings could result in his termination (distinguishing an award of Arbitrator Chuck Miller making such a finding on what Arbitrator  Lindauer deemed to be different circumstances), that the City failed to prove that the posts were simply expressions of political views that were neither racially biased nor advocated violence, and that the views were comments by a private citizen about matters of public concern that were protected by the First Amendment. Concerning the First Amendment question, the Arbitrator observed:

In the Arbitrator's opinion. [Grievant's] Facebook postings amounted to more than just unpopular political speech. His postings were unnecessarily vulgar and disrespectful, could reasonably be construed as being racially motivated, and could reasonably be construed as advocating violence. [Grievant's] Facebook postings caused disruption in the City's operations and significantly undermined the public trust in the police department. Therefore, the Arbitrator concludes the Facebook postings were not protected by the First Amendment to the United States Constitution.

Finding termination appropriate, he noted as an "additional factor" the County Prosecutor's expressed concern that grievant's testimony in any potential criminal case could be compromised "... particularly in cases where a potential suspect was a minority person, may be politically motivated, or where force may have been used." He also noted what he described as grievant's lack of remorse.

However, Arbitrator Lindauer further found that grievant's supervisor, and several police officials, had been aware of the postings for some time and, contrary to the City's policy, failed to address them or to take action until they received local media attention. As a result he determined that the City bore "some responsibility" for its failure to take active steps to require grievant to remove the postings. He modified his remedy to take this failure into account:

Therefore, in determining the appropriate remedy in this case, the Arbitrator has considered the Department's condoning of [grievant's] Facebook postings. In the Arbitrator's opinion, the Department should be required to pay [grievant's] back pay. It is an approprate remedy because the Department management was aware of the content of [grievant's] Facebook page for a significant period of time and failed to appropriate action to have [grievant] remove the offending content. Instead, the Department did nothing until the issue became a matter of public concern. Therefore, the Department must bear some economic responsibility for its failure to follow its own Policies.

Recognizing that the remedy was "unusual," Arbitrator  Lindauer nevertheless deemed it appropriate in this case. The City reportedly intends to seek to appeal. Arbitrator: WLPD officer's firing justified, but warrants payout

For another case in which the arbitrator denied reinstatement but awarded back pay see Just cause for termination but grievant denied due process - Arbitrator awards back pay but no reinstatement