Recent complaints to set aside awards - outsourcing, alcohol tests and piece rates

Several recent filings involve efforts to vacate arbitration awards.

 Churchill Downs Racetrack, LLC, v. Laborers' International Union of North America, Local Union No. 576

Churchill Downs Racetrack seeks to set aside an award of Arbitrator Mark C. Travis. Arbitrator Travis sustained a grievance claiming that the Company violated the cba when it subcontracted "all" housekeeping and maintenance work at one of its locations. The Company relied on language in the cba which, it asserted, expressly allowed its actions. The cba provided:

The Company shall have the right to determine whether and to what extent the Company's business and the work required in its business shall be performed by employees covered by the Agreement.

The Union's grievance claimed that the Company's actions were inconsistent with the parties' past practice of only using contractors to supplement the bargaining unit, were inconsistent with the explanation of the language provided to the Union during negotiation of the cba, and were contrary to the recognition clause.

Upholding the grievance, Arbitrator Travis essentially agreed with the Union's position.  He concluded:

The Union's argument is correct that taken to its logical conclusion, the Company could contract out all maintenance and housekeeping jobs covered by the CBA. For example, if an award upholding the Company's decision here were sustained as precedent, the Company could ostensibly decide to create a new subsidiary for the operation Churchill Downs and subcontract all housekeeping and maintenance duties at that location as well. That is a slippery slope indeed, and one that cannot be sanctioned in this case.

The Company's complaint alleges that the Arbitrator ignored the explicit language of the Agreement, added requirements not found in the Agreement, and simply substituted his own ideas of industrial justice.  (A similar issue is addressed in Contracting and erosion of the bargaining unit)


Cleveland Brothers Equipment Co., Inc., v. The International Union of Operating Engineers, Local 66,66A,B,C,D,O &R, AFL-CIO

Cleveland Brothers Equipment Co. is seeking to vacate an award of Arbitrator James Rimmel.

The award overturned the termination of a commercial truck driver who was found, as a result of a random alcohol screening test, to have a Breath Alcohol Test result of 0.034 on the first test and 0.029 on the second. These readings placed him in violation of regulations of the Department of Transportation/Federal Motor Carrier Safety Administrationl and, according to the Company, of the Company's Drug-Free Workplace Policy.

The Arbitrator found the test results undisputed, and concluded that it was "clear that grievant was in violation" of the regulation. However, he found that the language of the Company's Policy was ambiguous. He noted that the Policy contained an Exclusion Clause. That clause allowed the moderate use of alcohol at approved functions or in conjunction with customer business meals or entertainment  provided the employee did not reach a blood alcohol level of 0.04 which it defined as being "under the influence." This exclusion appeared just under a reference to the DOT/FMCSA regulations.

Arbitrator Rimmel concluded:

Cleveland's Policy is ambiguous as to what BAC level is acceptable for which class of employee. By placing the "exclusions provision" immediately following language generally incorporating DOT/FMCSA requirements for a certain class of employees, it is unclear whether the prohibited BAC level is 0.02 or 0.04 and/or to which class of employee each separate standard may apply. The ambiguity is only further highlighted by the fact that simple clarifying language could have been added setting forth the Policy's intent and Cleveland's expectations as to its employees. Moreover, the training provided by Cleveland does not provide additional color or clarification to the issue. The training is limited to providing guidance that a BAC level between 0.00 and 0.02 does not equate to a violation of DOT/FMSCA Regulation 392.5(a)(2). No evidence was proffered showing that the training informed employees as to the consequences of a BAC reading between 0.02 and 0.04 (as required by Regulation 382.601(b)(10)), or discussed in any cogent fashion the Policy's definition of "under the influence” as exceeding a BAC of 0.04. Under these circumstances, I am left to conclude that Cleveland did not have proper cause for the meted-out discipline because the inherent ambiguity in the Policy did not adequately inform grievant as to what level of alcohol body content was deemed acceptable. Subject to varying interpretations, it is not fair to impose upon grievant the onus of reconciling the ambiguity in the Policy. Simply put, had Cleveland desired to establish two (2) separate standards, one for DOT/FMCSA regulated employees and another for non-regulated employees, then it was incumbent upon Cleveland to clearly set forth such in its Policy and/or training
Accordingly, I find that this grievance must be sustained.

In its Complaint, the Company asserts that the award is contrary to the "well-defined  and dominant public policy interest as set forth in DOT/FMCSA regulations"  and "effectively condones permitting a commercial motor vehicle driver driving while in violation of established federal regulations ...."

Browning-Ferris Industries of Oho, Inc.  v.  International Brotherhood of Teamsters, Teamsters Local Union No. 20

The dispute before Arbitrator Robert Stein involved a claim that the Company breached its cba when it unilaterally changed the piece rate paid to drivers following the introduction of  new system for waste management. The Company claimed that the cba authorized it to make such changes when there was a change in service requirements. It relied on the management rights provision as well as Article 9.04 that provides:

The Company agrees to guarantee piece work rates for the term of this Agreement as long as service requirements remain the same, such requirements including, but not limited to, the location of disposal sites, volumes generated per units and equipment utilized to perform the service. A mere increase in house count shall not establish a change in service requirements, thereby justifying a reduction in the piece work rate. The Union reserves the right to grieve the adjusted rate.

 The Union's grievance asserted that the Company had sought unsuccessfully in prior negotiations to change or modify the language of Article 9.04. It also claimed that the new rate was below that paid to employees at the Company's other locations performing the same automated waste collection services.

Arbitrator Stein sustained the grievance (here), concluding:

 ... the Union has successfully met its burden of establishing that the Employer's acted in violation the Agreement's terms in determining or establishing a lower incentive or piece work rate than that which was in effect prior to the activation of the new Agreement without establishing that that was a recognized component resulting from the parties' negotiations.

The Company's complaint alleges that the Arbitrator exceeded his authority by adding restrictions on the Company's ability to change rates not contained in the cba and his reliance on the piece rate used in other municipalities.