Tenure charges based on hearsay insufficient, charges dismissed

Arbitrator Walt De Treux has dismissed tenure charges against a Cinnaminson, NJ teacher, concluding that the charges were based on hearsay and conduct that was addressed 16 years ago.  Arbitrator De Treux's award can be found here.

The teacher had been employed by the District since 1996. In 2002, he was the subject of a newspaper article that described his alleged relationship with a minor in 1990.

 Shortly after the report was published, the teacher was placed on administrative leave for three weeks but was returned to duty with no further discipline.

In about December of 2018, "it was reported" that he had told a student "Look at me. Let me see your pretty green eyes. You don't see them too much anymore."

The tenure charges, sworn to by the Superintendent, alleged that the teacher had made the statements alleged and that the student reported the comment made her uncomfortable.

The teacher filed a Motion to Dismiss the tenure charges, claiming that they were procedurally deficient and were based on "hearsay, rumor, and innuendo."

Arbitrator De Treux granted the Motion. On the allegations relating to the alleged comments he found:

A description of the student’s reaction (feeling “uncomfortable’) without any indication to whom, if anyone, she reported that reaction or to how the alleged comment and reaction came to the Superintendent’s attention (i.e., the number of persons the account was passed through before he learned of it) gives Respondent no opportunity to properly respond to the allegation or to rebut those unknown persons that may have reported or passed on the alleged comment and description of the student’s reaction.
For all these reasons, I find that the charges as they relate to alleged current conduct, i.e., the one alleged comment to the female student, are based on hearsay, and therefore, are procedurally deficient and must be dismissed.

Similarly he rejected the Board of Education's reliance on the events of 202. Despite the BOE's assertion that "parental and societal views have changed" Arbitrator De Treux found that the fact that some parents now demanded his removal from the classroom did not provide the BOE with a second opportunity to address conduct of which it had long been aware.

 Accordingly he ordered the dismissal of the charges and the teacher's immediate reinstatement with back pay. 

Does an "absolute cause" for discharge provision of a cba preclude a just cause analysis?

Despite a cba's inclusion of a provision containing a list of offenses which would provide "absolute cause" for termination, the Eight Circuit has upheld an arbitrator's award reinstating an employee found to have committed the listed offenses. CenterPoint Energy Resources Corp. v. Gas Workers Union, Local No. 340

The applicable cba acknowledged the Company's right to terminate employees for cause, but also included the following language:

Without excluding other causes for discharge, the following shall constitute absolute causes from which there shall be no appeal to negotiation or arbitration between the Company and the Union (except that the question of whether the employee has been guilty of the facts constituting such absolute causes shall be a negotiable controversy) namely: 

1. Use of, or being under the influence of, alcohol or non-medical drugs at any time during the work day

2. Dishonesty

3. Neglect of Duty

4. Abuse of Sick Leave.

Grievant had been dismissed "for falsifying your time sheets and neglect of duty" on four dates.  The dismissal was appealed to arbitration and was ultimately submitted to Arbitrator Richard John Miller for resolution. In his award Arbitrator Miller found grievant "guilty of dishonesty or neglect of duty on some of the days in question," but concluded that termination was too severe for the offense. Rejecting the Company's argument that he was without authority to modify the penalty once he found grievant had committed the offense in issue, the Arbitrator observed:

In reviewing the language of Article 26, it is clear that the Parties did not intend that any employee found to have committed one of the four listed offenses could be summarily discharged without regard to the factors arbitrators normally consider in determining whether there was just cause for discharge ...
To interpret Article 26 in any other manner would violate all of the basic notions of fairness and due process firmly established in the history of industrial relations and implicit in Article 26, which also includes a just cause standard for discipline and discharge. 

CenterPont sought to vacate the award, and the District Court agreed. (here) In accord with the position of the Company, the District Court concluded that the Arbitrator exceeded the scope of his authority by ignoring the "plain language" of the cba by reinstating grievant  after finding he had engaged in the conduct alleged.

The Eight Circuit reversed. It noted that the Arbitrator's decision turned on his interpretation of the language of Article 26, not simply his own notions of industrial justice:

Here, the arbitrator explained at length why he interpreted the contract to allow for review of the discipline. Even if there was serious error in the analysis, the arbitrator was arguably construing the contract.

In the Court's view this distinguished this case from an earlier decision (Truck Drivers & Helpers Union Local 784 v. Ulry-Talbert Co., 330 F.2d 562 ) in which the  Arbitrator's award simply disagreed with the Company's decision but was not premised on any interpretation of the cba allowing such a result.

 In light of its conclusion that the Arbitrator's award arose from his interpretation of the cba, the Court found the award entitled to be confirmed.

The Fifth Circuit's approach in somewhat similar cases is discussed in Fifth Circuit limits "implied finding" of just cause and More from the Fifth Circuit on "implied findings of just cause"

Tripartite arbitration and work jurisdiction disputes

Reversing the District Court, the Seventh Circuit has found that a dispute between Brock Industrial Services and two of its unions (the Carpenters and the Laborers) was a jurisdictional dispute excluded from arbitration under the Laborer's cba with Brock. Under the applicable cba, work-jurisdiction disputes were subject to a separate tripartite procedure. Brock Industrial Services, LLC v. Laborers International Union

Brock had initially assigned certain scaffolding work to employees represented by the Laborers. Shortly thereafter, however, it reassigned that work to employees represented by the Carpenters.

The Laborers filed a grievance under its own cba, and pursued that dispute through the dispute resolution procedure under the agreement. The Grievance Review Subcommittee of the National Maintenance Agreement Policy Council rejected Brock's claim that the matter was one of jurisdiction, outside the authority of the Subcommittee, and found that Brock had violated the cba when it reassigned the work to the Carpenters.

Brock sought to vacate that decision.The District Court rejected that effort, concluding that while the Subcommittee lacked authority if the grievance concerned a jurisdictional dispute, since the grievance concerned both a jurisdictional dispute and a wrongful termination claim the Subcommittee could properly decide the later dispute. The District Court's opinions can be found here and here.

Reversing, the Seventh Circuit concluded:

The gravamen of the grievance is work jurisdiction. The grievance and its supporting documents all complain that Brock improperly assigned work to the Carpenters instead of the Laborers. The Grievance Form Fact Sheet demanded that Brock "make proper assignment of work to the Laborers' Union," "reinstate the Laborers," and compensate workers for "lost wages and benefits." Indeed, the Subcommittee sustained the grievance because Brock "made a change of assignment." In other words, the Laborers complained (and the Subcommittee found) that Brock assigned work to the wrong union. That's the definition of a jurisdictional dispute. The Subcommittee therefore had no authority to arbitrate the grievance. The contract required tripartite arbitration in which the competing unions and the employer could be heard.

The Circuit distinguished earlier cases involving claims that an employer improperly subcontracted work to a employer who assigned the work to a different union, finding a subcontracting grievance "a district non-jurisdictional clam" not dependent on the identity of the employees who ultimately performed the work. Hutter v. Local 139, 862 F.2d 641 and Miron Construction Co v. International Union of Operating Engineers, Local 139, 44 F.3d 558. It found a third case (Alberici-Eby v. Local 520, International Union of Operating Engineers) "hard to reconcile" but noted in that case that the employer had failed to timely invoke the tripartite procedure.

In light of its analysis, the Court rejected the District Court's conclusion that the Laborers could pursue their bipartite grievance because several Laborers, who had been working on the project, were removed from the assignment, noting that this claim "necessarily implies that the work was misaligned" and thus "squarely on the work-jurisdiction side of the line."

It also rejected the lower court's conclusion that the Laborer's reliance on specific language in its cba provided the basis for an independent arbitration, noting:

The provision in question states: "During the existence of the [a]greement, there shall be no strikes, lockouts, work stoppages, or picketing arising out of any jurisdictional dispute. Work will continue as originally assigned, pending resolution of the dispute."
Grievances arising under this provision are indeed subject to bipartite arbitration. Like the subcontracting provisions in Hutter and Miron, a dispute under this provision can be separately arbitrated without interfering with a jurisdictional dispute. Suppose for a moment that the Laborers and the Carpenters submitted a jurisdictional dispute to tripartite arbitration, and to pressure Brock into taking its side, the Laborers Union called a strike, prompting Brock to file a grievance under Section 5. It would be completely consistent for one arbitrator to award the work assignment to the Laborers and another to sanction the Laborers for initiating a strike. Neither award would call the other into question.
But bipartite arbitration was not appropriate just because the Laborers labeled the grievance as one arising under Section 5. We look instead to the substance of the grievance. And in substance, this grievance is a work-jurisdiction dispute. As such, it was subject to tripartite arbitration, and the Subcommittee lacked arbitral authority.