End of year Quick Hits - Public Safety, Public policy, Arbitrability and Injunctions pending arbitration

Public Safety - Sex on Duty, Facebook, Sexual Harassment, Intoxication and Domestic violence

Arbitrator Jerry Fullmer overturned the termination of a Columbus, Ohio police officer who had been dismissed for allegedly having sex with prostitutes in his police vehicle while on duty. City of Columbus and Fraternal Order of Police Capital City Lodge No. 9. Arbitrator Fullmer found that the failure to call the three alleged prostitutes as witnesses undermined the case for just cause. He noted that there was no evidence that the Department made any effort to compel their testimony. He did uphold two separate charges and ordered grievant's reinstatement without back pay.

An Akron, OH police detective's Facebook postings warranted discipline, but the Department's case for termination relied improperly on events that had timed out under the cba. City of Akron and Fraternal Order of Police, Akron Lodge No. 7.  Arbitrator Jeffrey Belkin overturned the termination based, according to the City, on the "totality" of grievant's record. Because a number of the occurrences included in this "totality" could not be used for discipline, the Arbitrator focused on  Facebook posts that fell within the period for which discipline could be considered. One, which the Arbitrator found clearly referred to persons attempting to cross the border with Mexico, said "just a thought....shoot 'em all." Arbitrator Belkin found this post "represents an incitement to violence against an ethnic minority." A second contained the question "How is it that no-one has offed that dipshit asshat Farrakhan?" that the Arbitrator found "even more deplorable." Arbitrator's Belkin concluded that this post violated not only the Department's Social Media Policy but "fell squarely" within the definition of "Conduct unbecoming an officer." He determined that the appropriate discipline for these offense was a total of a sixty day suspension. The Arbitrator rejected grievant's claim that his comments were protected by the First Amendment. Issues arising from an employees comments on social media are also discussed in Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media

In City of Omaha and Professional Firefighters Association of Omaha, Local 385 Arbitrator Peggy McNeive largely sustained a grievance filed on behalf of an Omaha firefighter who was accused of using a racial slur and assaulting a woman while off duty in a bar. The Arbitrator found the City's investigation of the misconduct inadequate, determined that it was the City rather than grievant who brought the issue to public attention, and that the Chief failed to consider grievant's prior history of service, prior discipline of employees in similar circumstances, and discipline short of termination. She did uphold a 5 shift suspension for grievant ignoring instructions not to contact the Fire Captain. The City has sought to vacate the award. City, Stothert appeal ruling reinstating fire union president, want it vacated

Arbitrator Jane Desimone upheld the suspension and six month probation imposed on a North Franklin PA Township Police Sergeant for his failure to act on a report of sexual harassment made to him by an officer under his supervision. North Franklin Township and United Teamsters Local 205

A firefighter who showed up intoxicated at a training class after he erroneously thought the course would be canceled because of bad weather was properly terminated according to Arbitrator Robert O'Brien.  Town of Bourne, Massachusetts and International Association of Fire Fighters, Local 1717

A San Antonio police officer had his termination upheld by Arbitrator Paul Chapdelaine. Police Officer Jason R. Ayers v. The City of San Antonio, Texas. The officer had been accused of striking an individual in an apparent instance of domestic violence,  causing severe bodily injury, and drinking to the point of being unfit for duty.

 Claims to vacate awards as in excess of authority/Contrary to public policy

In Veteran's Transportation Services, v. Teamsters Local Union No. 25, the District Court in Massachusetts rejected the Employer's request to vacate an arbitrator's award as either in excess of his authority or as contrary to public policy. The Court concluded that the arbitrator was interpreting the cba, and that the employer failed to show that the arbitrator disregarded the language of the cba in doing so. Similarly, the Court found that reinstatement of the employee, a sedan driver for the disabled who had been terminated for reckless driving, was not contrary to public policy.

While disagreeing with the award on the merits, the District court in Nebraska confirmed an award of Arbitrator Cary Morgen ordering the reinstatement of an engineer who was alleged to have defecated on a train-car knuckle. Union Pacific Railroad Company v. International Association of Sheet Metal, Air, Rail and Transportation Workers - Transportation Division The Court rejected UP's claim that the award added requirements that did not exist in its agreement, concluding that the award simply determined that, in this instance, termination was too harsh. Update: The Eighth Circuit rejected the carriers claim that the award was in exess of the arbitrator's authority. https://www.leagle.com/decision/infco20210217125

Injunctions Pending

In Newspaper, Newsprint, Magazine and Film Delivery Drivers, Helpers, and Handlers, International Brotherhood of Teamsters, Local Union No. 211 v. PG Publishing Co., Inc d/b/a Pittsburgh Post Gazette the District Court for the WD of Pennsylvania granted the  request of the Union for an injunction maintain the status quo pending resolution of its grievance concerning the paper's alleged violation of an "implied in fact" contract. The Union claims that the Company announced plans that will breach, inter alia, its obligation to obligation to maintain health insurance benefits for employees.

The District Court for the District of Columbia denied a request by the NALC for a status quo injunction pending resolution of its grievance claiming that a Postal Service initiative was in violation of its cba. National Association of Letter Carriers, AFL-CIO v. United States Postal Service. The Court concluded that an arbitration success by the Union would not be an "empty victory" and that an injunction was unnecessary to preserve the arbitral process.

Arbitrability

In a case the press has dubbed as involving "football flu," the New Jersey Appellate Division upheld a decision of the State's Public Employment Relations Commission. PERC had concluded that a dispute over whether an employee should be required to submit a doctor's note for an absence on the day of the parade celebrating the Philadelphia Eagles Super Bowl victory was subject to arbitration. Matter of City of Burlington Board of Education v. City of Burlington Education Association The Board of Education had challenged the arbitrability of the dispute, claiming that it was allowed by statute to require a physician's certificate for sick leave. The Court held that the "application" of the sick leave policy may be challenged through the contractual grievance procedures to arbitration.

The District Court in North Carolina addressed a dispute over the arbitrability of a claim that an employee had breached the nondisclosure provisions of a grievance settlement.  International Association of Sheet Metal, Air, Rail and Transportation Workers, v. Transit Management of Charlotte, Inc. The settlement provided: "Should [grievant] violate the confidentiality of this agreement the agreement is voided and he is subject to termination without grievance rights as set forth in the Collective Bargaining Agreement." After the Company terminated grievant's employment for alleged violation of the confidentiality provisions of the agreement, the Union sought to arbitrate the issue of whether a breach had taken place. The Court rejected the Company's claim that Union had waived the right to grieve or arbitrate the issue, concluding that because the settlement agreement was ambiguous and because the cba had a broad arbitration provision the dispute should be resolved by an arbitrator.

Arbitrator upholds termination of "Brady" officer after County Attorney declines to use him as a witness

Arbitrator Rolland Toenges upheld the termination of a Cloquet, MN police officer fired after the County Attorney notified the City that she would not use him as a witness. Arbitrator Toenges' award can be found here.

Grievant was employed as a police officer for the City of Cloquet, MN since June 1997. On February 25, 2019, the Carlton County Attorney notified the City that grievant was a "Brady Cop." This designation was premised on three incidents of alleged misconduct reflecting dishonesty and credibility issues. These incidents took place on December 22, 2004, January 3, 2005 and July 24, 2017.

On June 4, 2019, the City terminated grievant's employment "based on his inability to perform essential duties of his position." The termination was grieved and submitted to Arbitrator Rolland Toenges for resolution.

The city argued that because the County Attorney determined that grievant was an unacceptable witness to testify in court proceedings, and that she would not prosecute cases where the grievant would be a witness, it would put public safety at risk to continue to employ him. It argued further "[w]hether the County Attorney's determination is righter wrong is not a matter within the Police Department's authority. The Police Department must accept that Grievant is not qualified to perform the essential duties of a Police Officer.  ... The only remedy available to the Employer is termination of the Grievant."

The Union questioned the County Attorney's decision to bar grievant from testifying, asserting that it was premised on her personal animosity toward grievant, and noting that a judge or jury could determine whether grievant's testimony was credible. It also claimed  that termination of grievant for the three earlier incidents, for which he had already been disciplined, constituted double jeopardy. Finally it argued that "Brady designation does not require discharge."

Arbitrator Toenges denied the grievance, concluding that "the City Attorney's position to not prosecute in situations where the Grievant would be a witness, renders him unable to perform an essential part of police officer duties." He rejected the Union's double jeopardy claim, noting that he was not terminated because of the prior misconduct "but due to the County Attorney's position not prosecute cases where the Grievant would be a witness." He concluded that the small Department had no other position for which it could use grievant.

The Arbitrator's decision is summarized in his Findings:

FINDINGS

1. Court testimony is an essential duty of a police officer.

2. Essentially all police arrests or investigations either will, or will likely, involve court testimony.

3. Based on the Grievant’s disciplinary record involving untruthfulness, the County Attorney will not prosecute cases where the Grievant’s testimony would be involved.

4. The effect of the County Attorney’s decision renders the Grievant unable to perform an essential duty of a police officer position.

4 The UNION in its Post Hearing Brief acknowledges there is “No mechanism to challenge Brady designation.”

5. The Police Department does not have the resources necessary to employ an officer who cannot perform essential duties.

6. The Police Department is without authority to change the County Attorneys position.

7. The County Attorney, as a member of the Citizens Advisory Board, has direct knowledge of the Grievant’s misconduct and disciplinary history.

8. It is axiomatic that the County Attorney having direct knowledge of the Grievant’s misconduct and discipline history is qualified to assess the effect application of the Brady Law may have on the Grievant’s creditability as a witness.

9. The County Attorney has confirmed that the decision to not prosecute cases where the Grievant would be a witness is final and not subject to reconsideration.

10. The County Attorney’s decision is not subject to the Arbitrator’s review. 

Brady issues are also discussed in  the following posts:

Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report 

Termination of police officer for dishonesty overturned, disparate treatment renders discipline excessive

Termination of police officer for off duty DWI upheld

Law Enforcement: Untruthfulness, reinstatement and Brady issues

Police officers, Brady/Giglio, dishonesty, exoneration and just cause

Update: Grievant has filed a complaint in federal court challenging the County's Brady policy and its application to him.  Available here.

Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement.

Dana Incorporated has filed a Complaint seeking to set aside an award of Arbitrator Daniel Kininmonth. The Company alleges that the Arbitrator filed to apply a Last Chance Agreement that he found to be applicable and to have been violated, and in doing so acted in excess of his authority.

Grievant had been placed on a Last Chance Agreement following a prior termination for attendance issues. The LCA included a provision stating “You are expected to adhere to the general plant safety and general rules of conduct as well as the attendance policy.” The LCA also contained language that :

In the event that you violate the terms of this last chance agreement your employment is terminated, you will not have access to the grievance procedure unless there is a question regarding the legitimacy of the termination.

Full compliance with the requirements of this agreement constitutes your conditions of continued employment. Failure to comply with all of the terms and conditions will result in discharge.

On May 21, 2018, toward the end of grievant's shift, a stamping press jammed. The Production Supervisor instructed grievant to clean up his work area while the machine was down. At the end of grievant’s shift, the production supervisor was told by a Group Leader that grievant had not cleaned his work area. They both inspected the area and confirmed that it had not been cleaned. They also noted that grievant had not fully completed the "hour by hour " board, used to allow employees on the next shift to be aware of what had taken place during the preceding shift.

The Production Supervisor met with grievant the next day and told him he was issuing him two ‘write ups,’ consisting of two written warnings, the first addressing the failure to clean up his work area and the failure to fully complete the board, and the second concerning unexcused absences.

On May 23, 2018 emails were sent to the Company’s Human Resources’s Manager describing the issues related to the write-ups. The HR Manager concluded that grievant had violated the LCA and she notified the Union that grievant’s employment would be terminated.

That decision was grieved and submitted to Arbitrator Kininmonth.

The Company maintained that grievant’s conduct was contrary to the LCA, and that the LCA defined “just cause” in these circumstances.

The Union raised several claims, including a claim that language had been added to the LCA without its knowledge, that it should  have been limited to attendance issues, that the Company had failed to properly investigate grievant’s conduct, and that he had been subjected to double jeopardy when he had first received written warnings for his conduct but was subsequently dismissed. Arbitrator Kininmonth rejected all of the Union’s claims except for that related to double jeopardy.

The Arbitrator rejected the Company’s claim that he had no authority to consider the double jeopardy question:

The Company argues that "There is No Double Jeopardy in the Context of a Last Chance Agreement." "The claim of 'double jeopardy' is not an issue within the authority of the Arbitrator when called upon to interpret the terms of the 'Last Chance Agreement.' This contention is another of those 'mitigating factors' that have been removed from the consideration of the Arbitrator via last chance agreement." Glatfelter, 126 LA 1774, 1779, 09-2 ARB ¶4694 (Allen, 2009) (Company Brief, p. 12).This arbitrator disagrees with this quotation from the Glatfelter decision. Double jeopardy is not a "mitigating factor" which cannot be considered by the Arbitrator in reducing the penalty under the last chance agreement. Double jeopardy is an "affirmative defense," not a "mitigating factor." The arbitrator can consider "affirmative defenses." ... Thus, the arbitrator can overturn discipline which subjects the employee to double jeopardy under a last chance agreement.

Arbitrator Kininmonth concluded that grievant was subjected to to "Double Jeopardy" when he was terminated after being disciplined by a written warning. He noted that Double Jeopardy is a "component" of industrial due process. While recognizing there are several views among arbitrators concerning how to remedy due process violations, Arbitrator Kininmonth aligned himself with those who believe "unless there is strict compliance with procedural requirements and due process the whole action will be vacated and nullified."

In accord with that belief, he reversed the termination and ordered the grievant's reinstatement with back pay. 

 Update: The Court confirmed the Award of Arbitrator Kininmonth  
Issues related to Last Chance Agreements are also discussed in the following  posts:  Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement

Recent Decisions - Last Chance Agreement, "substantive due process" and police use of force

Can an arbitrator disregard a last chance agreement?

Last chance agreement doesn't bar arbitration when union is not a party

Does employer provided alcohol mitigate an employee's intoxicated sexual harassment?

That was the issue presented to Arbitrator Robert E. Light in Aramark Uniform & Career Apparel and Teamsters Local Union No. 769.

Grievant was employed by Aramark as a Route Sales Representative. In acknowledgement  of his sales performance, he was invited to a Company recognition event consisting of a dinner and a limo to and from a Miami Heat basketball game. Alcohol was provided by the Company both at the dinner and in the limo.

While in the limo on the return from the game, grievant groped, touched and made sexual comments to another employee participating in the event. That employee, and another individual who was in the limo, testified and described the conduct of grievant. Grievant also testified, but said he could not remember much of what happened since he was already drunk when he went to the game.

The employee who was groped filed a complaint with the Company and, after an investigation, the Company terminated grievant's employment.  That action was grieved and submitted to Arbitrator Light for resolution.

While not condoning grievant's actions, the Union maintained that there were mitigating circumstances that called for discipline short of termination. It pointed to his approximately six years of employment with the Company, his clean work record, and his sales performance, including two years in which he was recognized as top sales person for the plant. It also noted  that the alcohol grievant was drinking had been supplied by the Company.

Arbitrator Light found at least some basis for the Union's argument, noting:

As was persuasively argued by Union counsel, the Company should have considered mitigation under these facts that would have led it to impose a lesser form of discipline. That is to say, as the facts reveal, the drinking that occurred in the limousine was due to the liquor being supplied by the Company. Does that fact in and of itself absolve the grievant from the conduct which he exhibited on the night in questions? The answer to that is no, however, it is a mitigating circumstance and must be taken into account by this arbitrator with respect to the penalty imposed upon the grievant. While it certainly does not absolve the grievant of the actions which he took, this arbitrator must take into account the aforementioned fact as well as the grievant's prior good record and the manner in which he testified at the arbitration hearing.

Arbitrator Light sustained the grievance in part, finding no just cause for termination but ordering grievant's reinstatement without back pay.

Aramark has sought to vacate the award (here), asserting that it is both contrary to the cba (which provides that "The Company shall not discharge or suspend any employee without just cause, excepting that no warning need be given employee before discharge if the cause for such discharge is ... sexual harassment") and to the "State's explicit, well-defined, and dominant public policy against sexual harassment in the workplace, and the affirmative duty of employers to implement that policy."

Another recently filed case also seeks to set aside an award reinstating an employee who had been dismissed for sexual harassment. In Welch Foods, Inc., A Cooperative d/b/a WELCH's v. General Teamsters, Local Union. 397, the Company seeks to vacate the award of Arbitrator Michelle Miller Kotula, asserting that it is contrary to public policy. Grievant had been dismissed as a result of his alleged conduct during a discussion with another employee. The discussion became heated, and grievant was alleged to have used "abusive, sexually explicit and derogatory language." The other employee involved was also initially dismissed but the Company later changed that to a two week suspension. Arbitrator Miller-Kotula found that grievant had " said inappropriate comments and used foul language during the incident" but concluded that the other participant had initially caused the argument and had also used inappropriate language. The Arbitrator reduced the termination to the same two week suspension that had been imposed on the other employee. The Company's complaint  alleges "The Award conflicts with and completely undermines the obligation of Welch's to prevent sexual harassment in the workplace and to apply sanctions against sexual harassment which creates a hostile or offensive work environment."

Update: The Aramark complaint has been dismissed with prejudice pursuant to the parties' settlement.

Arbitrator reverses termination for police officer's use of racial slur

Arbitrator Thomas Cipolla overturned the termination of a San Antonio police officer who had been captured on a body camera using a racial slur during an arrest. Arbitrator Cipolla's award can be found here. KSAT links to the video at San Antonio officer who repeatedly used N-word while arresting black man asks for job back.  

The facts of the incident were largely undisputed. The Chief described at the arbitration  hearing why he made the decision that termination was appropriate:

This particular incident puts -- would put not only [grievant], but the entire department at risk. How can you have an officer working in the community that is as diversified as here with African Americans as part of the population, after the public sees that he's out here calling people the N-word, the fucking N-word, to quote. It presents a liability to every officer out here who may hesitate to use force against an African American or person of color because of a charge of -- possible charge of bias or being racist or that this is a racist department. You have officers running around using the N-word, telling people they are being arrested because they're a fucking N-word. That is the most inappropriate language I have ever heard used during an arrest, especially to a minority.

Arbitrator Cipolla found that the evidence established a violation of the Department's Rules. He concluded that grievant's conduct brought "reproach and discredit" on both the grievant and the Department and that discipline was appropriate. However, while noting the severity of the offense, the Arbitrator found termination too severe in this instance. He cautioned that his decision should not be interpreted as coming from some "church of the second chance," but determined that:

At the end of the day, however, I find myself coming to the conclusion that the Appellant was off that day and said some awful things he should not have said and is now sorry for them. The Appellant was not himself that day and whatever set him off that day needs to be addressed. Perhaps the chaplain had some insight into the matter in that he believed the Appellant was pushed and goaded by citizen Robinson and said a lot of things he should not have said. As a longtime veteran in various police departments, this should not have happened to the Appellant. The Appellant should also know he will not be given another chance if he crosses this line again and should consider some anger management counseling and learn techniques to control himself. 

Arbitrator Cipolla converted the termination to a 10 month suspension and ordered grievant's reinstatement.

Similar issues are discussed in Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media

Deferral to arbitration of charges raising issues under the "contract coverage" test announced in MV Transportation, Inc. 368 NLRB No. 66

In  MV Transportation, Inc., the NLRB decided that it would no longer apply the "clear and unmistakable waiver" test in resolving charges that an employer had made unilateral changes in matters addressed in a collective bargaining agreement.  Instead, it would follow the "contract coverage" standard applied by a number of circuit courts. In a press release announcing its decision, the Board summarized the distinction between the two tests.

Under the “contract coverage” or “covered by the contract” standard, the Board will examine the plain language of the parties’ collective-bargaining agreement to determine whether the change made by the employer was within the compass or scope of contractual language granting the employer the right to act unilaterally. If it was, the Board will honor the plain terms of the parties’ agreement and the employer will not have violated the Act by making the change without bargaining. If the agreement does not cover the employer’s disputed action, the employer will have violated the Act unless it demonstrates that the union waived its right to bargain over the change or that it was privileged to act unilaterally for some other reason.
Under the now-abandoned “clear and unmistakable waiver” standard, the Board would find that an employer’s unilateral change violated the Act unless a contractual provision unequivocally and specifically referred to the type of employer action at issue.

The General Counsel's Division of Operations Management has now issued guidance to the Regions concerning deferral of charges that raise issues potentially impacted by that decision. Memorandum OM 20-03.  Per the Memo, the Regional Office should first determine whether there has been an arguable violation of the Act, i.e. by a showing of a "material, substantial and significant change in a mandatory subject of bargaining without notice and a meaningful opportunity to bargain." If the Region concludes that there is no such violation the charge should be dismissed.

If there is an arguable violation, and the Union has filed a grievance over the same issue, the charge should be deferred under the Dubo procedures. Memorandum GC 19-03 Deferral under Dubo Manufacturing Company

If the Union has not filed a grievance, but the employer has committed to waiving procedural defenses to the filing and arbitrating of a grievance the Region may also consider deferral.

However, if both parties oppose deferral the Region should complete its investigation of the charge, including any defense that a proviso of the cba privileges the action, and the case should be submitted to the Division of Advice.

Recent Petitions to Vacate - Persona non grata, a dispute over back pay, and transfer of work to a non-unit employee

Teamsters Local 853 v. SFO Transporter, Inc. d/b/a Compass Transportation

The Teamsters Union is seeking to set aside an award of Arbitrator David B. Hart.  

 Grievant had been employed as a shuttle bus driver, driving for clients and customers of Compass. A client of Compass requested that grievant be removed from its account based on an anonymous complaints from  passengers. Shortly thereafter, Compass terminated grievant's employment. 

The cba between Teamsters and Compass provides:

Under direction from any client or customer, an employee may be removed from service of that client or customer if it is deemed the employee is not performing to the client or customer's satisfaction. The employee, however, may bid to work for another client or customer, unless the employee engaged in misconduct or actions warranting discharge from the Employer. If no positions are available with another client or customer, the will be deemed laid off.

 The dispute over grievant's termination was submitted to Arbitrator Hart for resolution. Arbitrator Hart denied the grievance. In doing so he relied on the "persona non grata doctrine." Essentially this doctrine applies when an employee, assigned to the premises of a third party is prohibited by that  third party from providing services to it. In certain circumstances an employer may be able to dismiss such an employee without proving just cause. Arbitrator Hart concluded:

... the Grievant became disqualified due to the fact that there were no bus driver positions available to him due to two clients/customers demanding his immediate removal from their accounts.

He found further:

The Company did not need meet the standard for termination of the Grievant's employment because of misconduct, even though his alleged and partially admitted behavior was a violation of the Driver Manifesto and multiple provisions of the parties' Agreement; rather, the Company properly terminated his employment due to his persona non grata disqualification.

 In its Petition to Vacate, the Union alleges that the Arbitrator improperly modified  the cba and ignored its requirement that an employee removed from a customer account who is unsuccessful in finding a position with another client or customer "will be deemed laid off." It notes that the cba protects an employees seniority upon removal from an account by a customer and asserts:

The Arbitrator's decision that the Employer could terminate the Grievant based solely on his "persona non grata" removal from an account and that just cause did not apply exceeded his authority and modified the parties CBA.

 The Union seeks remand of the dispute to the Arbitrator for resolution in a manner "consistent with the Court's opinion."


Indiana Michigan Power Company v. Local Union 1392 International Brotherhood of Electrical Workers

International brotherhood of Electrical Workers, Local 1393 v. Indiana Michigan Power Co.

These two cases (here and here) are competing efforts to vacate or confirm a back pay award of Arbitrator Cynthia Stanley. Arbitrator Stanley had previously sustained a grievance, ordering the grievant's reinstatement with full back pay and benefits. The parties were unable to agree upon the amount of back pay owed. The Employer calculated the amount as "negative" $29,166.51. The Union calculated the amount owed as $244,850.83 plus 31,604.64 in retirement benefits.

Arbitrator Stanley agreed in large part with the Union, finding the amount owed as $264,438.89.

The employer seeks to vacate that award, It asserts that the award includes amounts predating the termination, includes overtime and double time in amounts in excess of what grievant had historically worked, and failed to deduct any amount for work grievant could have performed during the back pay period. The Union seeks to have the award confirmed and for an award of its' attorney fees.


Lewis County Rural Electric Cooperative Association and International Brotherhood of Electrical Workers Local Union Number 2

The Company seeks to vacate an award of Arbitrator Richard Van Kalker sustaining a grievance claiming that it had violated the cba by reassigning work that had been done by a bargaining unit employee to a non bargaining unit individual. 

Certain work relating to the Company's website had ben performed by grievant. That work was transferred to the Company's Manager of Member Services/Government Relations. The Company raised a number of points in its defense of the grievance, including the management rights clause and the lack of impact on the grievant who suffered no layoff or reduction in hours. In his award, Arbitrator Van Kalker recognized the breadth of the management rights clause, but concluded that it "does not nullify, modify, diminish, or alter Article IV [the recognition clause] of the CBA." He concluded:

In the case before the Arbitrator, the Arbitrator finds that the administration of the Company's website is routinely and customarily performed by an employee of the bargaining unit, to wit, the Grievant has performed administration of the Company's website since its inception in 2002. The Grievant has the knowledge and skills available to perform such work. The Grievant has always performed the work in an excellent manner. The Arbitrator would be remiss of his duties to find that administration of the Company's website is not bargaining unit work. As such, it was a violation of the CBA for the Company to reassign the administration of the Company's website from a bargaining unit member to a non-bargaining unit member.

The Company argues in its Complaint that the award does not draw its essence from the lawful provisions of the cba, fails to follow the specific provisions of the contract and instead relies on "implied provisions." It notes specifically that the Arbitrator did not discuss the language of the cba authorizing the Company to contract out "any portion of its work; provided however, that it shall not do so if such would result in any of the employees of the Cooperative being laid off during the tern of the Agreement." 

Several recent cases address use of racial epithets or biased statements by employees - on duty, off duty and on social media

Teacher's use of N word "under his breath" found insufficient to revoke tenure

Arbitrator Peter Adomeit rejected tenure charges against a teacher in a New Jersey school district who was alleged to have used the  word while in class. The tenure specification asserted that the teacher "quietly said to himself something to the effect of  'I’m done with these n...s'  or 'I’m not trying to deal with these n...s' while walking away from certain students who were disruptive in the class.”  Arbitrator Adomeit rejected the teacher's denial that he had used the word, but found the denial was understandable since he had said it "under his breath" and it was therefore  stored only in his short term memory.

Nevertheless, finding the tenure charges unwarranted, Arbitrator Adomeit concluded:

The Charges relate to a single incident, not a pattern of misconduct. His conduct will have no harm or serious effect on the maintenance of discipline or the school system. It leaves open the ability of the District to discipline other teachers for direct and open and intentional verbal belittling of students. No student was injured. He did say it to the students. He made the comment under his breath under provocation from a student who refused his request to move the Chrome Book off the pile, challenged his authority, called him “lazy”, and when [grievant] walked over to take the Chrome Book, the student slid it over to another student. At the same time, [grievant] was trying to control other students and had to raise his voice. (This was the seventh period of the day. The students had been in school for a long time.) The impact on [grievant's] career would be devastating. He has good teaching ability, has good evaluations, is initiates regular contact with parents of struggling students, tries to help the students improve, hold all students to high standards, sets limits and adheres to them, and encourages students to meet the standards, regardless of background. Prior to this event, his record shows no discipline. The incident was not premeditated. He did not intend for his thoughts expressed to himself be heard by students; he did not intend to communicate to students. He was muttering to himself, under his breath.

He ordered the teacher's reinstatement and found he should be made whole for any losses. His award can be found here.

The School Board has indicated its intention to seek to vacate the award. Teacher who allegedly used n-word must leave, parents and school board agree at contentious meeting

Officer's racially charged Facebook postings justified employer's two week suspension

Arbitrator Phillip LaPorte issued an award denying a grievance filed on behalf of an Orlando, Florida police officer who had challenged an 80 hour suspension arising from his Facebook activity.

Grievant had joined a Facebook exchange already in progress discussing Black Lives Matter, violence against police officers, and the protest activity of certain professional athletes, including Colin Kaepernick, Michael Bennett and LeBron James. The Arbitrator describes grievant's entry into the discussion:

At the point where the grievant entered the Facebook discussion, the Facebook posting exchange went from an open and cordial discussion between two individuals, ...  about violence against police officers and treatment of Blacks in America, to a tirade by the grievant, that included insults, name calling, and inappropriate dialogue laced with degrading and insensitive comments directed toward Blacks, women and people with disabilities. The grievant's comments could be categorized into four different areas: (1) racially based statements; (2) gender-based statements; (3) statements directed toward the disabled; and (4) generally profane and improper comments to citizens.

After complaints were filed about grievant's comments, an Internal Affairs investigation was conducted which resulted in grievant being suspended for 80 hours. The suspension was grieved. Grievant acknowledged he had engaged in a "serious" violation  of the Department's Social Media Policy but denied it was "extremely serious" within the meaning of the Department's policy. Instead, he argued that a suspension of 16 hours was more appropriate and consistent with actions taken against other individuals .  Arbitrator LaPorte rejected grievant's reliance on alleged disparate treatment, finding that the instances cited were not comparable. He also rejected grievant's explanation that his comments were triggered by the recent shooting deaths of two police officers in a neighboring town. While recognizing g that grievant was "an outstanding police officer" the Arbitrator found no basis to disturb the Department's decision on the length of the suspension. 

Grievant's Facebooks posts during his exchange included a reference to the three athletes as thugs and "savages". Arbitrator LaPorte found that this language, "aimed at prominent Black athletes" could reasonably be found to express bias in contravention of the Department's policies. 

This was not the first time grievant's use of the term "savages" resulted in his discipline.  In a prior arbitration, Arbitrator Joseph Schneider sustained a grievance, overturning grievant's suspension  for his comment to a crowd, (including a large number of minorities) he was trying to disperse "come on, you savages, its time to go home". (here)Arbitrator Schneider found "[w]hile no other person knows what [grievant's] inner thoughts were, based upon his past record, there was no indication that he intended to disparage any minority group or groups. He certainly could have used the term 'savages' to describe any group or groups engaging in such unruly behavior."

Arbitrator finds firefighter's use of N word didn't justify demotion

 Another Orlando case arose from a meal among firefighter. As dessert brownies were served, one of the firefighters, mimicking a scene from a movie, said that grievant should have the last one since "he needs it".  Grievant responded "Let the N**** have it." Shortly thereafter he apologized to the other firefighter, who accepted the apology.

Despite the apology, the Department followed up on the incident and ultimately disciplined grievant with a demotion from his Engineer position to a firefighter position. The Union grieved the discipline, arguing that a demotion was inappropriate and that it should be converted to a written reprimand.

Arbitrator Mary Greenwood sustained the grievance in part. (here) She found that, applying progressive discipline, the appropriate penalty should be a 24 hour suspension. Rejecting the Union's position that the discipline should be reduced to a written reprimand she noted:

I disagree with the Union that [grievant] should only have a written reprimand. He has had a written reprimand, even though not for bad conduct. The conduct deserves more discipline than a written reprimand. One of the employees who made vile comments about Hispanics got a 24 hour suspension. I think that sends the right message, but is not so severe to affect his total career. In setting aside the demotion, I have considered all the mitigating factors and the fact that the joking and teasing in this case may have gone too far. If [grievant] had not been mocked and likened to Milton in Open Spaces, this might never have happened.

 She ordered grievant returned to his former position and made whole for any losses less the 24 hour suspension.

Court confirms Arbitrator's award upholding demotion of Sheriff's Department employee for Twitter posts

The Minnesota state District Court confirmed an award of Arbitrator Jeffrey W. Jacobs. Judge affirms arbitrator's decision endorsing deputy's demotion. Arbitrator Jacobs upheld the demotion of a Rice County, Minnesota employee from Sergeant to Deputy because of his postings on a newspaper's Twitter page and subsequent statements to the press. This was an arbitration under the Minnesota Veterans Preference Act, but the standards are essentially the same as a traditional labor arbitration.

After reading an article about the settlement paid to Diamond Reynolds as a result of the police shooting of Philandro Castile, grievant posted on the newspaper's Twitter page "She'll have that spent in six months on crack cocaine."  A few seconds later he posted "I hope she loses all her State and County Aid now that she has this cash." Grievant repeated essentially the same comments again approximately 20 minutes later. When contacted about the postings  later by a local newspaper grievant claimed they had contacted the wrong person and denied he was a police officer and City councilman and claimed to be a contractor.

After an investigation, the County demoted grievant for violation of several County policies, including the policy on "Employee Speech, Expression & Social Networking." The dispute was submitted to Arbitrator Jacobs who upheld the demotion. The Arbitrator rejected grievant's assertion that his speech was protected by the First Amendment.

The Arbitrator found the employees conduct:

added to the already present perception by some that many law enforcement officers harbor racially negative views. Whether that is true or not is by no means the issue here but it demonstrates the disruptive nature of the impact of his actions here. As noted, the damage done to his department and to law enforcement in general was not merely “de minimus” as the veteran alleged. It was far greater than that and the Sheriff and Chief Deputy testified credibly and persuasively to that effect. The veteran’s actions here cannot be minimized or shrugged off as “no big deal.” The impact on his department was a very big deal and the damage to the public perception may be hard to judge by any objective measure and may well last long into the future. Clearly, the actions he took and the decision he made in this matter caused considerable disruption within the meaning of Pickering and its progeny. 
Troubling too was his reaction to being questioned about the post by the press. Instead of admitting to it, talking responsibility about it, trying to somehow explain it or even apologize for it, he lied to the reporter about his identity and claimed he was a general contractor. It was only later, when it was apparent that he indeed had sent the post that he acknowledged that the post was his. At that point, again instead of apologizing, he doubled down on the message and claimed that “history” supported his claims. It was clear that he had no intention of apologizing for his statements or acknowledging the damage they were doing and had done to the department. 

Arbitrator overturns termination Hartford Detective for use of racial slurs during his off day arrest for drunk driving - City appealing award

According to newspaper reports, the City of Hartford Connecticut is seeking to vacate an award of Arbitrator Elizabeth Neumeier reinstating a city detective who had been terminated for allegedly making racist slurs while being arrested on drunken driving charges. Hartford fights rehiring of detective who used racial slurs. I'm attempting to obtain a copy of Arbitrator Neumeier's award and will update this post if I can get a copy. The report indicates that Arbitrator Neumeier found termination  too severe, and ordered grievant reinstated without back pay.


Similar issues are addressed in:

Quick Hits - Back pay but no reinstatement, Arbitrator's reliance on external law, and Social media, law enforcement officers and the First Amendment

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

Termination of police officer for Facebook post overturned - City prematurely released information to media

Mayor improperly interfered with discipline of Fire Captain

Arbitrator finds dispute over eligibility to follow work is contractual, rejects assertion that it is a representation matter exclusively for the NLRB

Arbitrator Joseph Duffy has sustained grievance filed by Teamsters Locals 117 and 313 alleging that UNFI/Supervalu, Inc breached its cba when it denied bargaining unit employees the opportunity to transfer to a new facility after their current facility was scheduled to be closed. Arbitrator Duffy's award can be found here. 

The applicable language of the cba provided:

1.01.2 Movement of Existing Facility: In the event that the Employer moves an existing facility to any location within the jurisdiction of Joint Council of Teamsters No. 28, as currently defined excluding current facilities under the jurisdiction of and the service area of Teamsters Local Union No. 690, the terms of this contract shall continue to apply with respect to the new facility. In addition, all employees working under the terms of this Agreement at the old facility shall be afforded the opportunity to work at the new facility under the same terms and conditions and without any loss of seniority or other contractual rights or benefits. The designated Union will be required to show a majority representation in accordance with controlling law. In addition, the parties agree to enter into effects bargaining in accordance with controlling law regarding the impact on employees of the movement of an existing facility.

UNFI announced a plan to consolidate its distribution centers in Portland, Oregon, and  Tacoma, Auburn and Ridgefield, WA into a newly constructed facility in Centralia, WA. The grievance involved claims on behalf of employees at the Tacoma facility represented by the Teamsters locals. The Union claimed that these employees were contractually promised jobs at the new facility under the same terms and conditions they had in Tacoma.  The Company challenged the arbitrability of the dispute, arguing  that the it was primarily a representational matter concerning bargain rights at the Centralia facility and was therefore subject to the exclusive jurisdiction of the NLRB. It relied on the Board's decision in Teamsters Local Union No. 206 (Safeway, Inc), 368 NLRB No. 15 (union improperly recognized at new, consolidate facility because there was a question concerning representation).

It also claimed that the language of Section 1.01.2 applied only to relocation to a single facility, not a consolidation that creates a new operation. Finally, it claimed that even if Section 1.01.2 applied, the Union must first show "majority representation in accordance with existing law."

Rejecting the Company's position, Arbitrator Duffy found that the cba contained an "express promise" to allow all employees working in Tacoma facility to work at Centralia under the terms of the Tacoma agreement. Contrary to the position of the Company, he found that the dispute involved a question of contract interpretation, that the Union had not made a demand for recognition at Centralia and that "[t]he fact that a question concerning representation may exist at the new facility in Centralia is a separate issue from this contract interpretation dispute and the representation issue is not subject to this arbitration." He ordered the Company to allow employees at Tacoma to transfer to Centralia under the same terms and conditions they had in Tacoma.  

The Company has announced that it is "reviewing all potential actions with the National Labor Relations Board" and will pursue its claim in federal court. UPDATE: UNFI plans to fight ruling in contract dispute with Tacoma distribution workers 

Coal Industry Decisions - Construction or maintenance, remedies for contracting, and "production of coal"

Several recent decisions of the District Court for the Northern District of West Virginia address issues involving coal industry arbitration awards as the parties sought to confirm or vacate them.

Maintenance or construction

Two cases turned on whether the arbitrator correctly determined whether the work that was the subject of the grievance involved construction or maintenance. Generally speaking maintenance work could not be contracted out  while, with certain exceptions, construction work could.

In The Harrison County Coal Company v. UMWA and Local 1501 the Court confirmed an award of Arbitrator Thomas Hewitt. Arbitrator Hewitt had found that construction of a belt drive in a new section of the mine was more properly categorized as Maintenance work. In doing so he relied on a prior settlement between the parties that "recognized that belt drive installation work customarily performed at the Robinson Run Mine is classified work."

The Company sought to vacate the award, claiming that the Arbitrator exceeded his authority and substituted his own brand of industrial justice for the provisions if the cba. The Court rejected this claim, concluding "by focusing on the 2002 Settlement, the Arbitrator was not ignoring contractual language or applying his own notions of industrial justice. Recognizing the Court's extremely limited  role in reviewing labor arbitrators' decisions, the Courts finds that the Arbitrator's decision draws it essence from the Agreement."

In The Monongalia County Coal Company v. UMWA and Local 1702  the Court vacated another award of Arbitrator Hewitt. Arbitrator Hewitt had concluded that the Company's use of contractors to build cribs (a "supplemental roof support") was maintenance rather than construction work and sustained the grievance. In doing so he distinguished the case from one in which the District Court had previously held (here) that installation of a "pumpable crib" was construction, not maintenance work.  He further found:

An Employer who regulates/reduces the size of the workforce and assigns work that is unable to be performed within its self-imposed time limit if it uses only its current fully employed classified employees creates an "impossibility of performance" situation. If this Employer then relies upon Article A l, subsection (1) as authority to utilize sub-contractors to perform work customarily performed by classified employees, the Employer is circumventing the intent of the contract under Article I. This use of abuse of authority cannot then be relied upon as a reason to permit the use of outside contractors even when all classified employees are fully employed working no less than five (5) days a week, Obviously, this is not the intent of the drafters of the contract and this self-imposed scheduling may not be used to circumvent the intent and purpose of the NBCWA or diminish the use of the workforce under Article I.

 On the Company's Petition to Vacate the award, the Court found:

Here, under the guiding principles in the 2017 Decision, which considered a large amount of binding precedent, the work at issue was construction work because the contractors were hired to "build" new cribs (i.e., create something new at the mine). The Court agrees with Defendants that the work is production work, but it also falls into the secondary category of construction work pursuant to binding precedent.

The Court also found unsupported by the evidence the Arbitrator's finding of a "concerted effort to abridge the rights" of employees. Notwithstanding the limited role of Courts in reviewing arbitration awards, the Court found that the Arbitrator had ignored plain language in the contract and accordingly vacated the award.

Remedies for improper contracting - Confirmed, vacated, remanded

In UMWA and Local 1702 v. The Monongalia Coal Company the Court confirmed an award of Arbitrator William A. Babiskin.  The Union claimed that the Company had improperly contracted what it claimed to be unit work. Arbitrator Babiskin denied the grievance without addressing the merits, concluding:

It is not necessary to reach or decide the issues raised by the parties as there was no financial loss to the employees in this case. As held by me in Blacksville No. 2 Mine, Case 07-31-09-040, I strongly believe in the principle of "no harm, no foul." See ex. Sterling Winthrop Research Institute, FMCS 86K/07572; Wisconsin Public Corp., 52 LA 1028. Since Grievants suffered no financial harm, there is nothing to be remedied.

The Union sought to vacate the award, arguing that the Arbitrator failed to consider the evidence, ignored the issue, and adopted a principle of "no harm, no foul" that did not appear in the cba.

The District Court confirmed the award. It concluded that while the Arbitrator's description of the principle may have been inartful, it was an effort to apply "long standing" principles that monetary awards in absence of compensatory damages are improper. The Court held that:   

The arbitration award issued here is entitled to significant deference, and the Court will not substitute its own judgment based on Plaintiffs' preference for an arbitration award with a less-casual statement of a long-standing legal principle.

A somewhat similar issue was addressed in the Court's decision in Monongalia Coal Company v. UMWA and Local 1702. That case involved a challenge to the award  of Arbitrator Ralph Colflesh.  Arbitrator Colflesh found that the Company had improperly contracted work which should have been performed by the bargaining unit. However, he also found that no identifiable unit employee had suffered economic harm. Rejecting the Company's argument that there are some contractual violations that must go without remedy, he provided for an alternate remedy:

 Based on the foregoing, I join Arbitrator Drucker in awarding damages to the Union for the breech [sic], and concur with the principle implied in her award that  in general every sustained grievance must have some remedy. At the same time, I depart from any thinking that Union members should rewarded for not working when they had the opportunity.  Rather, remedial compensation in this case should go to the Union only for the costs of prosecuting this grievance. Such costs shall be reasonable and shall be based on the documented fees, if any, the Union's legal team billed for the preparation of the grievance as well as  the documented per hour cost of the work of Mr. Frey, who represented the Union here, that was spent preparing and presenting the case. The latter amount shall be calculated on his hourly salary as a Union staff member and based on a 40-hour work week.  The cost shall not include any costs of witnesses, nor shall it include the Union's share of the undersigned's fees and expenses, as those must contractually be divided equally by the parties. 

The Company sought vacate the award, and the District Court granted that request. Finding the ordered remedy beyond what was authorized by the cba, the Court  concluded:

Had the Arbitrator calculated Defendants' loss based on the actual breach, the award could possibly be upheld. As discussed above, compensating a Union based upon loss of Union work has been held to be permissible under the NBCWA. See Cannelton, 951 F.2d at 594. The Arbitrator did not, however, take that approach. His award contained no supporting findings of monetary loss to establish the award as compensatory, and it did not find any basis in the language of the contract. Instead, the Arbitrator chose to award Defendants their costs in preparing the grievance. The monetary award issued did not stem from the breach of the contract but, instead, stemmed from the Arbitrator's own sense of industrial justice.

Arbitrator Drucker's award, referenced by Arbitrator Colflesh, can be found here. That award was also subject to a petition to vacate, but the Court remanded the case to the Arbitrator for clarification as to how she determined the remedy. here.

In another case, The Monongalia Coal Company v. UMWA and Local 1702 , the court confirmed an award of Arbitrator Mathew Franckiewicz. Arbitrator Franckiewicz upheld the Union's grievance and ordered a make whole remedy. However he noted that the method of allocating the pay for the work performed by the contractors was not clear:

The evidence discloses the number of contractor employees and the number of hours they worked on each day in issue. There are more Grievants than there were contractor employees on any of the days involved. The easiest, but perhaps not the fairest, method for allocating damages would be to award a pro rata share to each  of the Grievants. This, however, would ignore individual considerations as to which individuals likely would have worked on particular days, or whether particular Grievants were or were not available on particular days. 

He therefore assigned to the parties the initial responsibility to allocate the damages, retaining jurisdiction in the event of a dispute. 

Rejecting the Company's Petition to vacate the award, the Court concluded:

After considering the arguments and the evidence, the Arbitrator found that it was more appropriate to categorize the work as "performing repairs, although extensive repairs," because many original components were reused. ECF No. 11-4 at 8. The Arbitrator then found, based on evidence presented, "that the repairs performed by the contractor were and are normally and customarily performed by bargaining unit employees." Id. at 9. He did so based on careful analysis of the contract and the evidence presented at the hearing.

Further, there are no grounds to overturn the Arbitrator's monetary award. The Arbitrator left the issue of damages up to the Parties to distribute, while retaining jurisdiction in case the parties cannot agree. The monetary award is clearly aimed to compensate because it left the issue of damages to the parties to decide. Further, as Defendants have noted, it "granted only the amount of time directly related to the amount of work performed by contractors." ECF No. 17 at 13. Because the NBCWA is silent as to an appropriate remedy, it is within the Arbitrator's discretion to select one, and the Court finds that this Award draws its essence from the NBCWA.

Production of coal and work jurisdiction

In The Ohio Valley Coal Company v. UMWA the Court vacated an award of Arbitrator Mollie Bowers that had found the Company in violation of its cba. The Court summarized the somewhat complicated facts as follows:

Ohio Valley formerly operated the Powhatan No. 6 Mine ("Mine") in Belmont County, Ohio. Defendant United Mine Workers of America, District 31 represented all bargaining unit employees of the Mine since it was constructed and commenced operation in 1972. The 2016 National Bituminous Coal Wage Agreement ("NBCWA") governs the terms and conditions of employment for all bargaining unit employees at the Mine.
***
The Mine was in operation through exhaustion of its coal reserves with production permanently ceasing on October 16, 2016. Ohio Valley finished processing mined coal from the Mine on December 15, 2016, and it was permanently sealed on December 31, 2016. The Mine, which once employed nearly 500, was staffed by only 16 classified employees when the underlying grievance was filed....
In 2001, an unrelated subsidiary of Murray Energy Corporation, American Energy Corporation, opened the Century Mine to mine a coal reserve contiguous with the Mine. Ohio Valley has no ownership interest in the Century Mine and the UMWA does not represent any employees at the Century Mine.
On July 15, 2002, Ohio Valley and American Energy Corporation entered into a Slurry Disposal Agreement. Ohio Valley licensed rights to dispose of coal slurry materials to American Energy Corporation in the impoundment on property formerly associated with the Mine.... Pursuant to the terms of the agreement, American Energy Corporation retains sole responsibility for the transportation of its slurry materials to the impoundment.... Ohio Valley did grant an easement and right-of-way entry onto its property for installation and maintenance of the necessary pipeline. ... American Energy continued to dispose of its slurry materials in the impoundment as of briefing in this matter.

The Court determined that the cba limited work jurisdiction to activities related to "the production of coal" and since the mine had been permanently closed, no work jurisdiction claim was viable. The Court rejected the Arbitrator's contrary conclusion as being based on a false premise.  Arbitrator Bowers had found that while production had ceased, work performed at the mine was essential to coal production and operation at an adjacent mine "which is also owned by the Company." The Court concluded that "Despite wholly inaccurate assumptions to the contrary, Ohio Valley was not engaged at any relevant time in the production of coal at the Mine as it was closed and sealed ...." The use of the property by American Energy "a separate legal entity" was insufficient to sustain a work jurisdiction claim. Finding the Arbitrator's decision based on an "inaccurate factual premise" the Court vacated the award. 

Recent cases - Untimeliness of an award, public policy challenges, and neutrality of party appointed arbitrators

Untimeliness of arbitrator's award doesn't warrant vacating award

In First Student, Inc v International Brotherhood of Teamsters, Local 959, the District Court for Alaska denied a request to vacate an award of Arbitrator Elizabeth Ford. The parties had submitted to Arbitrator Ford a dispute concerning the Company's alleged failure to seek an alternate assignment for a bus driver taken off his route at the client's request. The cba called for the arbitrator's award to be issued within 30 days of the closing of the hearing or submission of  briefs. The signed award of Arbitrator Ford was not submitted until almost four weeks beyond that date. 

Rejecting the Company's argument that this delay rendered the award void, the Court relied on the Ninth Circuit's decision in McKesson Corp. v. Local 150 IBT. In McKesson the Ninth Circuit noted :

In the absence of an express agreement to the contrary, procedural questions are submitted to the arbitrator, either explicitly or implicitly, along with the merits of the dispute. ... The question of the authority of the arbitrator to issue an award after the sixty day period involves just such a procedural matter. McKesson's contention that the time limit is jurisdictional in nature and may not be submitted to the arbitrator is in error. Courts have uniformly held that limitations on the time in which an arbitrator may render an award are procedural not jurisdictional.

The District Court concluded that the Arbitrator's decision to issue an award after the thirty day period was a procedural matter that had been submitted to the arbitrator along with the merits of the dispute and that the thirty day limitation was "precatory" and did not limit the arbitrator's authority.

Courts reject public policy challenges to awards

Two recent decisions reject employer public policy challenges to arbitrators awards.

In City of Duluth v. Duluth Police Union, Local 807 the Minnesota Court of Appeals denied an appeal by the City of Duluth from the lower court's order rejecting the City's challenge to an award of Arbitrator Mario Bognanno. Arbitrator Bognanno had found that grievant had improperly used excessive force, but found termination too severe. He ordered grievant's reinstatement without backpay. The arbitrator's award and the lower court's decision are addressed in City will appeal reinstatement of police officer dismissed for improper use of force. Observing that the public policy challenge must be to the arbitrator's award, not the grievant's conduct, the Court concluded "in sum, even though [grievant's] use of force was contrary to a public policy against unreasonable use of force, the arbitrator's award of reinstatement without back pay is not."

In Steward Carney Hospital, Inc. v. Massachusetts Nurses Association the District Court in Massachusetts rejected the Hospital's public policy challenge to an award of Arbitrator Michael Stutz reinstating a nurse in the Hospital's adolescent psychiatric unit. Grievant had been dismissed for allegedly failing to review a "safety tool" (a questionnaire used to identify important patient information including what makes them feel upset or unsafe, preferred methods on intervention and how best to communicate when the patient is upset) and for allegedly failing to intervene when another nurse was observed mistreating the patient. 

Arbitrator Stutz found that grievant was properly subject to discipline, but not termination. He converted the termination to a disciplinary warning.

The Hospital sought to vacate the award, asserting that the reinstatement was contrary to applicable regulations requiring that hospital staff  "meet 'clinical competencies and operational standards,' that all personnel be 'qualified' and demonstrate 'competencies' and that provide that the Hospital could lose its license it cannot provide proper treatment to patients."

Rejecting the Hospital's challenge, the Court concluded:

... nothing in the regulations establishes a policy that a nurse who committed the grievant’s conduct be prohibited from working at a hospital. See Bos. Med. Ctr. 260 F.3d at 23  (holding that the question is whether the order to reinstate the grievant violates public policy).  The only positive law that could be discerned from the Hospital’s argument is a policy against hospitals employing unqualified personnel. Notably, while the Hospital could have reported the grievant’s conduct to the Massachusetts agency governing the registration of nurses, the Arbitrator found that the Hospital did not file a report about the grievant’s conduct with any such state agency. Award [#1-7] at 9. The Hospital offers no connection between the Arbitrator’s Award and “some explicit public policy that is well defined and dominant and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests.” Misco, 484 U.S. at 43 (internal quotations and citations omitted).

Party arbitrators and neutrality

Matter of Patrolmen's Benevolent Association of the City of New York, Inc. v. New York State Public Employment Relations Board involved a challenge to the City of New York's anointment of a party arbitrator to a three person panel in an interest arbitration. The Union challenge the City's appointee, claiming that his service as a consultant to the City and prior representation of it demonstrated a lack of impartiality. Rejecting the challenge, the Appellate Division found no requirement that a party appointed arbitrator be "neutral." The Court observed:

We turn next to petitioner's claim that Linn should be disqualified based upon improper partiality and hostility toward petitioner. "[S]trange as it may seem to those steeped in the proscriptions of legal and judicial ethics," New York has no requirement that a party-appointed arbitrator must be impartial (Matter of Siegel [Lewis], 40 N.Y.2d 687, 690 [1976]). It is well recognized that tripartite arbitration has a "partisan character" (Matter of Astoria Med. Group [Health Ins. Plan of Greater N.Y., 11 N.Y.2d 128, 135 [1962]). "The right to appoint one's own arbitrator, which is of the essence of tripartite arbitration ..., would be of little moment were it to comprehend solely the choice of a `neutral.' It becomes a valued right, which parties will bargain for and litigate over, only if it involves a choice of one believed to be sympathetic to [the selecting party's] position or favorably disposed to him [or her]" (id.; see 13 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 7511.16). Notably, in tripartite arbitration, both parties are equally free to select the arbitrators they prefer. Further, party-appointed arbitrators typically have a depth of knowledge on the subject in question that "can be of assistance to the neutral member, who is not in a position to appreciate the problem and the fine points of its setting.... [T]o disqualify an arbitrator because of [partiality] ... would be to withhold from the [panel] a source of the specialized knowledge which contributes to the unique value of the arbitration process" (Matter of Astoria Med. Group [Health Ins. Plan of Greater N.Y.], 11 NY2d at 138 [internal quotation marks and citations omitted]). Consistent with these principles, CPLR article 75 provides for the vacatur of an arbitration award based upon the partiality of an arbitrator only when the challenged arbitrator was "appointed as a neutral" (CPLR 7511[b][1][ii]; see Matter of Meehan v Nassau Community Coll., 243 A.D.2d 12, 17-18 [1998], lv denied 92 N.Y.2d 814 [1998]). [footnote omitted]

The court held that the "evident partiality" of a party appointed arbitrator was not a basis for disqualification.