Tuesday, December 8, 2020

Another case on zero tolerance, just cause, and a failed drug test

 A recent post discussed a challenge to an arbitrator's award where the Company claimed that the arbitrator ignored the violation of its zero tolerance policy for drug use and improperly reinstated an employee, albeit without back pay. Zero tolerance, a drug test and just cause.  A similar issue is raised by a complaint filed by Colonial Wholesale Beverage Company seeking to vacate an award of Arbitrator Lawrence Holden. The dispute arose from the termination of an employee who tested positive for cocaine during a random drug test. 

Grievant acknowledged having used cocaine on a Saturday evening, August 10, but maintained that this was a one time event caused by his celebration of obtaining his "dream house." His first report to work following the Saturday night use was Tuesday, August 13, and he worked through August 20 when he was notified that a random drug test administered on August 16 had tested positive. 

Following receipt of the test results, the Company terminated the employee pursuant to what it described as its zero tolerance policy for drug use and for reporting for work under the influence of drugs or alcohol. It relied on a provision of the cba affirming that "the Union and the Employer agree that employees shall not engage in the unlawful use, purchase or sale of illicit drugs," language in its Employee Handbook that prohibits employees from reporting to work or working while under the influence of drugs or alcohol and that "an employee who engages in the above prohibited conduct is subject to disciplinary action up to and including immediate termination." 

The Union challenged the existence of  a zero tolerance policy, arguing that the Company maintained a second chance policy for employees who successfully completed a post termination drug treatment program, and that the Employee Handbook indicated the Company retained disciplinary discretion when an employee failed a drug or alcohol test. Such discretion, it argued, was inconsistent with a zero tolerance policy. 

The issue submitted to Arbitrator Holden was 

Did the Employer have just cause to terminate the employment of the grievant ... on or about August 26, 2019? If not, what shall be the remedy?

In his award, Arbitrator Holden noted that it was undisputed that grievant had tested positive for the presence of cocaine in his system. He then observed 

The dispute in this case is over what should be the appropriate outcome for the grievance in light of his positive test result.

He concluded that the evidence established that the Company "has retained discretion, bound by the contractual principle of just cause decision-making, as to the manner in which it will deal with violations of the substance abuse policy." He based this conclusion in part on the absence of any reference to a "zero tolerance policy enforced by summary discharge" and the absence of illicit drug use from the list of "cardinal sins" in the cba for which no written notice must be given prior to discharge. He also observed that 

If there were a zero tolerance policy in place, more than likely the Employee Handbook would have said so by stating that any employee who participated in substance abuse shall be terminated immediately.

Resolving another  contested issue, he found that a Notice issued by a previous Human Resources Director describing a "one chance to rehab" policy had been posted in the workplace despite testimony from Company witnesses that they were unfamiliar with this Notice and had never observed it. 

Arbitrator Holden found that grievant had violated the contractual prohibition on use of illicit drugs, but he found no evidence that he was under the influence at work. He ordered that grievant be reinstated without back pay. 

The Company's effort to have the award vacated asserts that the Arbitrator improperly ignored the stipulated issue by focusing on the question of remedy rather than "the limited question posed to him by the parties, which was whether the Plaintiff had just cause to terminate [grievant]." It asserts also that he ignored the contract's grant of authority to the Company to relieve employees for legitimate business reasons and the discretion to terminate an employee without warning "for violating the broad catch-all of 'any serious matter'." It alleges that the Arbitrator exceeded his authority under the cba, improperly and contrary to the cba "added to or modified" then agreement  and requests that the Court vacate the Award. 

Update: The District Court rejected Colonial's request to vacate the award and granted the Union's request to confirm. Colonial Wholesale Beverage v. Local 59, International Brotherhood of Teamsters

Monday, November 30, 2020

Zero tolerance, a drug test and just cause

 The Eleventh Circuit reversed the decision of a District Court and upheld an arbitration award (here) reinstating an employee terminated pursuant to the Company's Zero Tolerance policy following a positive drug test. Georgia-Pacific Consumer Operations LLC, v. United Steel  Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Union, Local 9-0952.

The cba in issue provided:

 The Company will establish a "zero tolerance" random drug testing program for all Company employees at the Naheola facility.

The Company's Corporate Policy relating to random drug screening stated:

All persons who test positive for any substances listed in Section 1 (Introduction) will be terminated, unless otherwise prohibited by a collective bargaining agreement or applicable law. All terminations must be coordinated by the location/division human resources manager.

Grievant was selected for a random drug test. The test showed a positive result for codeine  When informed of the result, grievant explained that he may have mistakenly taken some of his wife's prescription cough syrup instead of his own, non prescription, one. Because grievant could not produce a prescription in his own name for cough medicine containing codeine his employment was terminated under the Company's Zero Tolerance Policy.

The termination was grieved and submitted to Arbitrator James Odom for resolution. In his award, Arbitrator Odom described the dispute:

 Does the Contract require the Company to demonstrate just cause in order to terminate an employee who has tested positive for opiates during a random drug screen?

The Company argued that under its Zero Tolerance Policy the positive test result itself established the required evidence of just cause. The Union maintained that any discipline administered under the contract was required to meet the just cause standard, which required an evaluation of all the circumstances. 

Arbitrator Odom concluded:

Obviously, maintaining a safe, drug-free work place is a necessary and positive goal of the Company. And I understand the theory that a well-advertised, strictly interpreted zero tolerance policy requiring every employee who tests positive on a random drug screen be immediately discharged could have a greater tendency to reduce the presence of drugs in a workplace than a practice that is less forceful. But is an inflexible “test positive and you are terminated" rule enforceable? More to the point, under the parties Contract, is such a policy enforceable with regard to the grievant and given his circumstances? 

Section 2 of Article 8, Rights of Management of the Contract limits Management's right to discipline and discharge employees to just cause. As a labor arbitrator, I am unable to interpret as reasonable or just any decision to terminate that purposefully ignores the circumstances and causes surrounding the violation

Applying that standard, Arbitrator Odom determined that there was not just cause for the termination.  He found grievant's use of his wife's cough medicine was not intentional, and there was no evidence that he was under the influence of drugs while at work. 

While finding termination too severe, Arbitrator Odom did find that grievant had made "the error of mistake" and was responsible for the negative results. He reduced the termination  to a ninety day suspension and ordered grievant's reinstatement.

 The Company sought to vacate the award as in excess of the Arbitrator's authority in ignoring what it believed to be the contractual requirement that a positive drug result in termination. The Company's complaint can be found here. The Magistrate, in a decision adopted by the District Court (here), agreed with the Company and vacated the Award. The Magistrate concluded that the Arbitrator's finding that grievant had engaged in conduct that was defined in the cba as an offense subjecting him to discharge constituted an "implicit finding" of just cause which the Arbitrator was not free to ignore. 

On the Union's appeal, the Eleventh Circuit overturned that decision. The Court found that the Arbitrator was within his authority in resolving the interplay between the just cause requirement of the cba and the language relating to the Company's random drug test program:

Turning to Georgia-Pacific's position, [the arbitrator] distilled it as "[Irvin's] positive test is the required evidence of just cause." Then, the arbitrator characterized the part of the contract concerning Georgia-Pacific's the random drug-testing program as a "commitment" and asked whether Georgia-Pacific's interpretation of the policy made to fulfil that commitment was "under the Parties' contract, . . . enforceable with regard to [Irvin] and . . . his circumstances?"
The arbitrator's answer was no. Whether that's right or wrong doesn't matter for our purposes—all that matters is that the arbitrator's answer flowed from his interpretation of the contract. The arbitrator emphasized that another provision of the contract limited Georgia-Pacific's power "to discipline and discharge employees to just cause." He then explained why he couldn't conclude that "just cause" existed under these circumstances. If his efforts had simply been free-wheeling policymaking, then vacatur would have been justified. But they weren't, and so it wasn't.

The Court rejected the Company's, and the District court's reliance on earlier cases finding an Arbitrator exceeded his authority by ignoring "express (and apparently complete) terms of a drug testing policy spelling out each provision in some detail." It found the language in this case "much less specific, as one might expect for an 'element' of a plan that the parties agree will be implemented later." Noting other detailed provisions of the cba relating to drug use and drug testing, it observed that the parties knew how to bargain clear, specific language that synthesized drug testing plans with the just cause provision, the Court found their failure to do so here left it within the Arbitrator's authority to resolve that relationship. 

Sunday, November 15, 2020

Back pay - Arbitrator rejects assumption of increased child care responsibilities as mitigation of back pay damages

 The New Hampshire Union Leader reports on the termination of a Manchester NH police officer and the subsequent arbitration of that discipline. City ordered to rehire 'proven racist' cop; status uncertain

The officer was dismissed for sending racially insensitive text messages to his wife on a Department issued cell phone. The newspaper links to voluminous documents related to the case, including the arbitrator's award on the merits as well as a subsequent award on back pay issues. 

Arbitrator Gary Altman overturned the termination, finding the penalty too severe. He converted the discipline to a thirty day suspension and ordered grievant's reinstatement. He further ordered that:

... grievant shall not be awarded back pay for the period of this thirty day suspension. Under this award the grievant is to be made whole for lost compensation until he returns to work pursuant to this Award, minus thirty days’ pay for the period of the suspension. In addition, his back pay shall be offset by any compensation that the grievant received during this time period. 

The Department refused to reinstate the grievant, and also claimed that grievant had failed to mitigate his damages by failing to make reasonable efforts to find seek employment after his termination. It was undisputed that grievant had failed to seek alternative employment during the period he was no longer working for the City of Manchester. Grievant noted that following this termination he assumed primary caregiver responsibility for his two sons, providing the opportunity for his wife to increase her hours and, presumably her income. According to grievant:

“My wife adjusted her work hours and schedule following termination, no longer being able to serve as primary caregiver for them”, and that his wife now “works as a nurse practitioner and adjunct professor of nursing. Those employment responsibilities combined, having been adjusted post termination, have her now working 7 days a week.”

The  dispute between the Department and the Union concerning the appropriate calculation of back pay due grievant was submitted to the arbitrator for resolution. Manchester Police Patrolman's Association and City of Manchester.

Arbitrator Altman separated the back pay period into three district time periods. Initially he noted that at the time of grievant's termination the Department also sought to have the County Attorney pursue criminal charges against grievant.  The County Attorney ultimately did not pursue those charges. For this initial period, Arbitrator Altman concluded that the pendency of potential criminal charges seriously limited grievant's ability to find employment in a substantially equivalent position. He observed:  

Considering the totality of circumstances, including the position held by the grievant, and the fact that he was under criminal investigation, Mr. Brown was not required to have sought employment during the time period he was under criminal investigation. In other words, it was reasonable for Mr. Brown to have waited until the criminal investigation was concluded for him to make any attempt to look for substantially similar employment.2 
2 The obligation to seek employment is not for any and all positions. Rather, an employee’s obligation is to seek employment in a position suitable to his background and experience, and one that provides comparable pay and benefits.

The second time period encompassed the period between the time the County Attorney's office advised that it would not pursue criminal charges and the date of the Arbitrator's award. For this period, Arbitrator Altman concluded that grievant had failed to mitigate, and denied back pay:

Circumstances changed after it was clear that the County Attorney decided not to pursue criminal charges. Undoubtedly, it would have been difficult for Mr. Brown to find work in the field of law enforcement after his discharge, but the difficulty of finding such position does not excuse him from making at least some effort, to look for work. It is the general rule in back pay cases that an employee must make at least reasonable efforts to find new employment, which is substantially equivalent to the position lost and is suitable to a person of his or her background and experience.
It is not as if Mr. Brown had to actually find employment but he must, at least, have made an effort to search for employment. It would be inappropriate to allow an employee to collect back pay during a period when the employee made no effort to mitigate damages by seeking employment and essentially dropped out of the labor market.

Arbitrator Altman rejected the claim that grievant's assumption of increased child care responsibilities provided a basis for his failure to seek other employment. He noted:

The fact that Mr. Brown stayed home with his minor children while his wife worked additional hours does not satisfy the duty to mitigate. By this decision, Mr. Brown totally removed himself from the workforce. I know of no cases in which a discharged employee is excused from attempting to search for work because he decides to stay home with his children.

Finally, the Arbitrator found grievant was eligible for back pay for the period following the merits award ordering his reinstatement until the City actually returned him to employment:

The City has the right to challenge the Arbitrator’s Decision directing the reinstatement of Mr. Brown, as it deems appropriate. If the City complied with the Award, however, Mr. Brown would have been reinstated and would have begun to be paid the wages and benefits due to him under the parties’ Collective Bargaining Agreement. I know of no cases in which an employee’s obligation to mitigate continues after an award of reinstatement.  

Sunday, November 1, 2020

Quick hits - Union dues, self defense, and clearing a grievant's name

Arbitrator rejects City's claim the Janus supersedes dues deduction withdrawal window of cba

Arbitrator William Heekin rejected the position of a School District that the Supreme Court's decision in Janus effectively superseded a ten day "window" for withdrawal of union dues deduction authorization. Fairfield City School District Board of Education and OAPSE/AFSCME Local 4 AFL-CIO Local 205.  Grievant had signed a membership application as well as a dues deduction authorization  on August 12, 2018. That application, and the parties cba, provided for revocation of a dues deduction agreement only during a specified ten day period annually. Grievant resigned his membership, and sought to revoke his dues deduction authorization outside the contractual window.  The School Board honored that request. The Union grieved the Board's action action, disagreeing with the Board's assertion that allowing that revocation was compelled by the Supreme Court's decision.

In upholding the Union's grievance, Arbitrator Heekin concluded:

Janus does not supersede or interfere with the Article 38, contractual mandate of when and how authorization for a union membership dues payroll deduction is to be revoked.

Arbitrator Heekin noted that grievant had previously signed both a membership application and a dues deduction authorization. This, he found,  distinguished the case from the circumstances involved in Janus:

Simply put, Janus deals with the Constitutionality of a public sector employee who, unlike Clifford Heckler, chose to not become a union member and had not authorized the payroll deduction of an agency fee, which in accordance with his collective bargaining agreement and/or state law would be remitted to the union that represented him in collective bargaining. In other words, Janus is determined to have not addressed the subject of a public sector employee such as Clifford Heckler who, unlike Mark  Janus, voluntarily chose to become a union member and voluntarily authorized his public sector employer to deduct union membership dues from his employee paycheck. This follows where the Supreme Court in setting out its nearly fifty-page majority opinion in Janus did not once refer to the subject of a union membership dues, payroll deduction or the relationship between an employee who voluntarily becomes a union member and his/her union. Accordingly, in finding that Janus does not apply, it is held that what controls is the Article 38, contractually mandated “ten (10) day” window period and other requirements as to when and how union membership dues payroll deduction authorization can be revoked. 

Accordingly, he ordered the School Board, as requested by the Union, to "[m]ake OAPSE whole $ for [grievant's] Authorization of Dues, and begin deductions again."

Bus driver's physical altercation with passenger driven in part by self defense, termination too severe 

Arbitrator Colman Lalka was presented with a dispute arising from an incident between a bus driver and passenger. The dispute began as a verbal exchange and escalated into a physical altercation. Arbitrator Lalka largely sustained the grievance, overturning grievant's termination but agreeing there was just cause for discipline "according to [the Company's] Progressive Discipline Program." Greater Cleveland Regional Transit Authority and Amalgamated Transit Union, Local 268.

In making his determination, Arbitrator Lalka looked to the standards used to resolve claims of excessive force by police officers. Applying those standards, the Arbitrator concluded

The bus operator's primary function is to drive the bus, while providing courteous service to the Authority's patrons. In situations of irate and difficult passengers, the Authority's de-escalation protocol can be expected to be used. However, an Operator must have some leeway to exercise judgment and reasonably respond to clearly out-of-control passengers who provide the driver with a reasonable belief of bodily harm.

While rejecting the RTA's assertion that grievant's conduct warranted termination, Arbitrator Lalka concluded:

While the Grievant's actions did not rise to the level of a terminable offense, the Grievant's act of yelling to the female passenger to "shut up," nevertheless constituted a violation of the Employee Performance Code. That act was also in contravention of the Grievant's de-escalation training in dealing with difficult passengers. Just Cause exists for discipline lesser than termination and may be administered pursuant to the Authority's Positive Discipline Program.

 Arbitrator sustains grievance of Sheriff's deputy, "encourages" joint public announcement clearing grievant's name

Arbitrator Doyle O'Connor sustained the grievance of a Kalamazoo Sheriff's Deputy whose employment had been terminated for alleged neglect related to the death in custody of a jail inmate. Kalamazoo Sheriff & County and Kalamazoo County Sheriff's Deputies Association

The incident in issue arose in June, 2015. An inmate who had smuggled drugs into the jail died from an overdose while in custody. Following that death, an investigation was conducted which cleared grievant, and other employees, of any wrongdoing or negligence. In 2019, in the course of discovery in connection with a lawsuit filed by the family of the deceased inmate, an audio recording, previously believed not to have not been retained, was uncovered.  After review of the audio, the Department decided to reopen the investigation into grievant's actions. 

Arbitrator O'Connor rejected the Union's challenge to the reopening. He found that the recently discovered audio constituted new and substantive information and supported the reopening of the investigation despite the long delay. However, he found nothing in the new audio to alter the original conclusion that grievant had engaged in no misconduct or negligence. Responding to the Union's claim that the decision to terminate was driven by political consideration arising from the lawsuit, the Arbitrator noted that the evidence did not "compel" that conclusion but that "to the extent that such pressure had any impact on the Employer's decision making in this case, it would be inappropriate." While he found that there was no evidence that grievant had neglected his duties, the Arbitrator noted that there was evidence that another Deputy had neglected his duties regarding the inmate, had attempted to conceal that fact, but was not disciplined. 

Finding that the Department had failed to establish just cause for the termination he directed  grievant be offered reinstatement "immediately" and be made whole in all respects. He further noted:

Given the high public profile this case has already had, and the damage unfortunately caused to [grievant's] otherwise good reputation where in these especially fraught times he has been charged with culpability in the death of an inmate in police custody, the Parties are encouraged to endeavor to agree upon a joint public pronouncement regarding the outcome; failing at that, the Parties regardless remain free to address the matter publicly as they see fit.

Sunday, October 18, 2020

Arbitrator upholds termination of Sheriff's Deputy for off duty use of force

This case comes at a time one report notes " "[t]he issue of arbitration has come to the forefront of a national discussion on accountability in law enforcement."  Deputy fired after allegedly punching man in H-E-B parking lot loses fight to be returned to force 

In an Award involving a dispute between a terminated employee and the Bexar County, TX Sheriff's Office, Arbitrator Louise Wolitz has upheld the termination of a Sergeant in the Sheriff's Office who had been dismissed for his off duty use of what the Sheriff's Office asserted, and the Arbitrator found, was excessive use of force. 

The dispute involved a claim that the employee of the Sheriff's office struck another driver who he believed had backed into his truck and attempted to leave the scene while both were in a parking lot. The grievant maneuvered his vehicle into a position to block the other driver from leaving. When the other driver rolled down his window the parties engaged in a brief exchange, and grievant reached in a struck the other driver. During the investigation of the incident grievant maintained that he was attempting to stop the other driver from fleeing the scene and may accidentally have touched him while he was trying to grab the steering wheel. At the hearing, grievant acknowledged that he had struck the other driver.

Arbitrator Wolitz concluded that the Sheriff's Office was confronted "with a clear case of excessive use of force." 

On the propriety of termination, the Arbitrator noted:

The question of the punishment was for the Sheriff and the command officers to decide. After an investigation, they were unanimous in the decision to discharge Mr. Anderson. ... There was video evidence that [the other driver] was subject to an unjustified use of force by a law enforcement officer. This was clearly conduct unbecoming a law enforcement officer and, if it became public, would bring discredit on the Bexar County Sheriff’s Office. There was no reason to believe it would not become public. The records were subject to public release. The conduct would be detrimental and have an adverse affect on the Sheriff’s office if it were discussed in the media. ... Moreover, the fact that Mr. Anderson did not acknowledge his conduct and came up with an unconvincing story that he was simply trying to stop the car, called into question his honesty in other actions in the department and destroyed his credibility as a witness in court. His story was easily determined not credible by the available video evidence, especially when there were other ways to attempt to get [the other driver's] identification without using physical force. The disciplinary decision was for the command officers and the Bexar County Sheriff to make. There is no evidence in this record which requires the arbitrator to change their unanimous judgment.

Sunday, October 11, 2020

Two arbitrators address the issue of the COVID pandemic as a force majuere event

Two recent awards involve questions concerning the existence or impact of the Corona virus as a force majeure event, potentially excusing claimed violation of the parties' agreements.

In American Association of University Professors - University of Akron Chapter, Arbitrator Jack Buettner concluded that the force majuere clause privileged the University's actions when it implemented a "retrenchment." 

The effects of the COVID pandemic are certainly unforeseen and surely out of anyone’s control. The number of cases fluctuates from day to day, week to week, and location to location sending counties in Ohio from a Level 2, Orange, to a Level 3, Red, while hopefully avoiding the Level 4 designation which signifies severe exposure and spread and could result in another state of emergency. Cases of COVID on college campuses have been cited as one of the factors that have pushed counties into the Red zone. [Bamforth, E. (2020, September 4) Plain Dealer, p. A5.] The pandemic is affecting colleges in general as cited in Kiplinger’s Personal Finance. (5 Ways College is Changing. 9/2020, p. 44) There is lower enrollment as families struggle through the recession, tighter budgets as student revenue decreases, federal and state funding cuts, and declining government budgets. In an effort to balance college budgets, smaller staffs are being seen as faculty is laid off or furloughed. Circumstances remain in flux as the state grapples with the disease and its spread. COVID is, indeed, a catastrophic event, and it’s resulting impacts are unforeseeable and beyond the University’s control.

Having established that a force majeure did, indeed, exist, the University needed to satisfy the requirements in Section 1(A)  ...

Arbitrator Buettner concluded further that the pandemic did not relieve the University from complying with certain other obligations of the contract "which are feasible and possible to implement since there is no immediate financial impact  or time frame."

In Alaska Airlines, Inc. and Aircraft Maintenance Fraternal Association, Local 32 a panel chaired by Arbitrator Frederic Horowitz addressed a dispute that "arose as the product of economic disruption caused by the global COVID pandemic plaguing the travel industry." The parties disagreed about the scope of certain job security language in their agreement. 

Rejecting the position of the Company, the panel concluded that the applicable provisions "confirms the plain language of the parties' Agreement [and] supports the position of the Union."

    The parties are seeking expedited resolution from the System Board of good faith yet irreconcilable differences about the application of force majeure provisions in Paragraph 2. of LOA #9 to the job security provisions in Paragraph 4. of that LOA as well as to the impact if any of those protections on the seniority provisions in Article 9 K.2. of the Agreement. When negotiating the Transition Agreement in 2019, neither party anticipated the massive economic disruptions caused by the global pandemic in 2020. The System Board in these circumstances cannot attempt to presume or conjure what the bargaining parties would have done had the subject been raised in negotiations. Rather, the Board can only interpret and apply the existing contract provisions in a manner consistent with accepted standards of contract construction in light of the unique facts presented.

    In Issue No. 1., the evidence supports a finding the job security provisions in Paragraph 4. of LOA #9 are not subject to the force majeure provisions in Paragraph 2. based on the plain language of those provisions and the absence of a mutual intent manifested otherwise during bargaining.

Sunday, October 4, 2020

Last chance agreement, double jeopardy and just cause - Court confirms award reinstating employee notwithstanding Last Chance Agreement

 An earlier post, Arbitrator concludes that the principle of double jeopardy prevails over a Last Chance Agreement,  noted a complaint filed by Dana Corp seeking to set aside an award of Arbitrator Daniel Kininmonth.  That award involved the termination of an individual who was subject to a last chance agreement (LCA). 

The LCA provided:

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.

The Arbitrator found that grievant had engaged in the conduct he was accused of, and that this conduct was in violation of the LCA. However, observing that "An employee who signs a last chance agreement only gives up the rights him or her expressly agrees to give up" the Arbitrator found that the LCA in this case did not expressly exclude the principle of "just cause."

 Arbitrator Kininmonth found that grievant had been subjected to double jeopardy  he had  been issued a "written warning" for an offense he was subsequently terminated for.

The Arbitrator rejected the Company's claim that he was without authority to consider the question of Double Jeopardy in the presence of a Last Chance Agreement:

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.

The District Court for the Eastern District of Kentucky has now confirmed the award, rejecting the Company's claim that the Arbitrator  acted outside the scope of his authority and did not carry out his role of interpreting the LCA  but instead utilized his own notions of "just cause." Dana Incorporated v. International Union, United Automobile, Aerospace and Agricultural Implement Workers 

The Court concludes:

Dana argues that arbitrators may not examine just cause under last-chance agreements, pursuant to the Sixth Circuit rulings in Ohio Edison Co. v. Ohio Edison Joint Council, 947 F.2d 786, 787 (6th Cir. 1991) and Bakers Union Factory No. 326 v. ITT Cont'l Baking Co., 749 F.2d 350, 351 (6th Cir. 1984). ... But the Arbitrator distinguished those cases as involving instances where the arbitrator failed to follow the terms of the last chance agreement at issue by mitigating the employee's termination (when the agreement clearly called for termination). Instead, the Arbitrator advised that, he "had not ignored the LCA," ... and that the LCA "does not exclude the principle of `just cause.'"... Although the LCA here called for termination, the Arbitrator, after finding "just cause" and related procedural protections remained, found a procedural double jeopardy violation (which he deemed an affirmative defense, not a mitigating factor) when the Company punished Akerman twice for the same conduct. ... This Court need not decide whether that distinction is too fleeting to matter. Perhaps the jump from "defense" to "affirmative defense" was a mistake. Indeed, this Court may have reached a different conclusion, but this Court's "task is not to choose the best interpretation." ...

Finally, Dana argues that the Arbitrator went outside of his authority in considering affirmative defenses because the LCA did not allow for an affirmative defense.... True, but the LCA did not expressly disallow affirmative defenses either. The Company drafted the LCA and could have easily defined the term "legitimacy" to avoid this dispute and foreclose any procedural due process arguments. See Zeon Chemicals, 949 F.3d at 985 ("Had the company clarified two features of this agreement, we do not see how the arbitrator could have plausibly contradicted them.") Given the inartful language, the Court will "leave the parties to what they bargained for." Zeon Chemicals, 949 F.3d at 982. Here, they tasked the Arbitrator with determining the legitimacy of Akerman's discharge. This is precisely what he did. He applied the terms of the LCA (including its "legitimacy" provision) to the facts of Ackerman's discharge. Whether he reached the right outcome is neither here nor there. The parties "bargained for an arbitrator's interpretation of the contract, not a federal judge's." Econ. Linen, 917 F.3d at 513. With all of Dana's arguments met, the Court finds that the Arbitrator did not act outside the scope of his authority and that he was, at a minimum, "arguably construing or applying the contract." Zeon Chemicals, 949 F.3d at 983 (quoting Misco, Inc.,484 U.S. at 38). Given the deferential standard, the Court will not disturb his decision.

Arbitrator Kininmonth's award contains a detailed review of cases discussing the impact of a LCA on an Arbitrator's authority.