The District Court in Massachusetts has vacated an award of Arbitrator Michael Stutz reinstating an employee dismissed by Steward Holy Family Hospital. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association . Grievant was employed by the hospital as a nurse. She was dismissed following an incident during which she was alleged to have "assaulted" another employee by grabbing her face and speaking to her "like a baby."The two had been in a dispute about conflicting vacation requests. Grievant denied any physical contact but Arbitrator Stutz found her denials not credible. While concluding that discipline was appropriate he concluded that termination was too severe and modified the discipline to a written warning. The hospital sought to vacate the award as beyond the arbitrator's authority. It noted language in the parties agreement that prohibited the arbitrator from substituting his judgment for that of the Hospital. Vacating the award, the District Court found:
Once the arbitrator determined that [grievant] had engaged in the specific alleged misconduct in violation of the Hospital's policy, his role was fulfilled. ... By going further and reducing the discipline imposed by the Hospital to what he believed was more appropriate, the arbitrator was prescribing his own brand of industrial justice in violation of the plain terms of the contract.
UPDATE: The First Circuit reversed the District Court. Steward Holy Family Hospital, Inc. v. Massachusetts Nurses Association It found that while the Arbitrator concluded the grievant had engaged in a "inappropriate, unconsented touching" nothing in the cba or the Hospital's policies compelled the Arbitrator to classify grievant's conduct as a Group III offense warranting termination.
Termination of Officer involved in Tamir Rice shooting upheld
Arbitrator James Rimmel has denied a grievance contesting the termination of the officer involved in the shooting of Tamir Rice. Arbitrator Rimmel's award can be found here. The termination was not because of any conduct related to the shooting, but from what the City claimed were misstatements or omissions in grievant's personal history statement submitted in connection with his application for employment and discovered during the investigation of the shooting. Arbitrator Rimmel found that the City had established grounds for discipline, and that termination was consistent with the Department's disciplinary matrix and not imposed disparately. He noted that while the shooting precipitated the investigation that led to the discipline "I am tasked solely to adjudicate whiter the City had just cause to terminate grievant for his alleged omission and/or failure to provide full and complete information his PHS when applying for employment with the City. That is my focus here!"
The Union has indicated it will appeal the arbitrator's decision focusing on "what they believe are inconsistencies in the ruling and that the arbitrator’s decision was affected by public pressure outside the facts of the case." Cleveland police union determined to return officer who killed Tamir Rice back to the force.
The question of the sometimes differing expectations of the real issue to be decided by the arbitrator is discussed in Reaction to police discipline award highlights mixed expectations about the issue to be decided.
The award addressing the discipline of the second officer on the scene is discussed at Arbitrator reduces suspension of officer involved in Tamir Rice shooting
Ninth Circuit upholds ASARCO liability for copper bonus
A previous post (Waiver of a challenge to the jurisdiction of an arbitrator and how to avoid it) discussed the Court's earlier opinion in this case. The Court has now withdrawn that opinion and replaced it with a new one. ASARCO LLC v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union . The Court again affirmed the District Court's decision refusing to vacate the award of Arbitrator Michael Rappaport. Arbitrator Rappaport found that the parties had made a mutual mistake concerning the impact on the negotiated exclusion of new employees from the Company's pension plan on the eligibility of those employees to participate in the copper bonus program. ASARCO sought to vacate the award, arguing that it was beyond the authority of the arbitrator given the language of the contract and its prohibition on the arbitrator adding to, detracting from, or altering it in any way. The District Court concluded that, after finding the parties were mutually mistaken as to the impact of the exclusion of new employees from the pension on eligibility for then bonus, he was authorized to reform the cba to provide for their eligibility. (No-add" language in cba doesn't prevent arbitrator from modifying contract). A majority of the Ninth Circuit (over a dissent asserting that its conclusion was "flatly wrong") has now determined that "Upon concluding that the parties were mutually mistaken as to the impact of the 2011 MOA on new hires' eligibility for the Bonus, the arbitrator was authorized to reform the CBA despite ASARCO's protest."
Sixth Circuit upholds NRAB decision on dispute over discipline and displacement rights
A panel of the National Railway Adjustment Board denied a grievance (here) challenging discipline imposed by CSX on an employee for having missed minimum availability requirements while considering his displacement rights.The Carrier claimed that work had been available to him but that he chose to forgo that work pending exercise of his seniority to the assignment he ultimately selected. Claimant maintained that he was protected from discipline for the full 48 hours the cba allowed for him to consider his displacement options. The panel concluded:
Section 1 of Article XII addresses only what happens after 48 hours if the employee has failed to exercise seniority to his next assignment during that time. Section 1 says nothing about the implications of delaying his selection, and thereby making himself unavailable, while work is otherwise available to him.
The Union sought to challenge the award, arguing that it was contrary to the plain language the contract, but the District Court granted summary judgment to CSX (here).The Sixth Circuit (over a strong dissent) has affirmed that decision. International Association of Sheet Metal, Air, Rail and Transportation Workers v, CSX Transp., Inc. The Court held that because the arbitrator was "arguably construing" the contract the award was entitled to enforcement, noting:
... it was within the arbitrator's discretion to find that the displacement policies govern the rights of senior employees vis-à-vis more junior employees, whereas CSXT's availability policies govern the rights of employees vis-à-vis their employer. As CSXT argued before the arbitrator, "Nothing in the Agreements creating the 48-hour period for exercising seniority to another assignment also created the right to be unavailable for work during that period." (R. 1-1, Page ID# 13.) The arbitrator acted within her discretion to credit this statement as true, based on the face of Article XII itself as well as the 1996 Q&As. To be sure, there may be reasonable disagreement as to whether the arbitrator's interpretation of the CBA was correct. But the arbitrator's reasoning does show that she "appeared to be engaged in interpretation," and the outcome she reached was not "ignor[ant]" of the CBA's "plain language."
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