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 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.

Contracting and erosion of the bargaining unit

Right to subcontract didn't authorize eliminating unit positions by attrition

The District Court for the District of New Jersey has denied a request by ExxonMobil Research and Engineering to vacate an award of Arbitrator Joyce M. Klein.

The dispute arose over the Union's claim that ExxonMobil violated the cba when it permanently contracted certain bargaining unit positions the Company claimed were non core. While the contract allowed the Company to contract work, it required notice to the Union and prohibited  layoff of unit employees qualified to perform the work and required the recall of any such employee prior to the contracting. 

The Company notified the Union that it intended to contract certain non core positions through attrition in order to enable it to focus on core research and development positions.

Arbitrator Klein sustained the Union's grievance, relying in large part on the cba's recognition clause:

The Company seeks to retain an employee workforce consisting of "core" employees while permanently contracting other non-core positions included in the recognition clause of the parties' Agreement.) 
****
At issue is whether the Company has the authority pursuant to Article XVIII to contract out those positions on a permanent basis. Although Article XVIII was drafted broadly providing the Company with the authority to “let contracts," it was not designed to be without limitation.
****
Permanently contracting positions covered by the Recognition Clause has the effect, over time, as additional positions are contracted permanently, of changing the scope of the Recognition Clause and potentially eroding both the coverage and size of the bargaining unit. While the concept of unit erosion is not expressly included in the bargaining unit, the Recognition Clause expressly covers all of the job classifications "listed in Exhibit ll and who are based at the Clinton, New Jersey facility." While Article XVIII permits the Company to contract the work performed by these positions without express limitation, these positions remain covered by the collective bargaining agreement and bargaining unit members may work in those positions in the event of demotion or layoff. As a result, both Article XVIII and the Recognition Clause prohibit the permanent contracting of these positions.

The Union sought to confirm the award while the Company sought to vacate it. The Court confirmed the award. Independent Laboratory Employee's Union, Inc v. ExxonMOBIL Research and Engineering Co. Recognizing the limited scope of review of arbitration awards, and noting that it was not passing judgment on the wisdom of the arbitrator's conclusion, the Court found that the award was a good faith interpretation of the cba and was therefore entitled to be confirmed:

Whether or not this Court agrees with the Klein Award's analysis, the arbitrator's good faith interpretation of the CBA is reasonable, especially in light of the history between ILEU and EMRE on which the arbitrator relied. The Klein Award cites the 1977 comments of an EMRE vice president, stating that EMRE will hire independent contractors only when operational needs require and will never seek to reduce the number of ILEU-covered employees. Id. at 6. Those comments are consistent with the 1983 arbitration award which explains that the CBA's language does not justify a program of using the attrition of union employees to permanently replace covered positions with non-union contractors. See Florey Award at 13-14. EMRE's present plan directly conflicts with both its vice president's 1977 comments and the Florey Award's 1983 CBA interpretation. Given this history, the Court cannot say that the Klein Award "is so completely irrational that it lacks support altogether," or is "totally unsupported by principles of contract construction and the law of the shop." Sutter, 675 F.3d at 219-20; Akers, 712 F.3d at 160 (quoting Ludwig Honold, 405 F.2d at 1128).

Update: The Third Circuit has affirmed the District Court decision, similarly rejecteing the argumets for vacating the award.  here

Sixth Circuit refuses to vacate award finding subcontracted drivers and temporary employees were "one in the same" under language in a cba

Faced with a need for additional drivers, Economy Linen and Towel Service of Zanesville entered into a service agreement with ProDrivers for that Company to provide certified drivers on a contract basis. The Union representing Economy's drivers (Teamsters Local 637) filed a grievance challenging that action. The Unions asserted that the ProDrivers were being compensated at a rate higher than full time drivers in violation of the cba. The Company denied the grievance, asserting that it had contracted the work to ProDrivers as allowed by the cba, and it had no knowledge or control over how much ProDrivers paid its drivers. The dispute was unresolved in the grievance procedure and was ultimately submitted to Arbitrator Lawrence Roberts for decision.

In his award, Arbitrator Roberts saw the dispute as being resolved by the "unambiguous language" of the agreement, specifically the definition of temporary "on call" employees.

Sustaining the grievance, the Arbitrator rejected the Company's reliance on its contractual right to subcontract. He found controlling the contractual provision that "In no event will a temporary or part time employee be hired at or given a higher rate than a full time employee." He noted that while the term "full time employee" was defined in the cba, "[t]here is no language found within the same Agreement specifically defining either a temporary or part-time employee in a similar context."

 Concerning the Employer's right to subcontract, he found that right "unimpeded until one reaches the Hours of Work and Overtime provision." There temporary ("on-call") employees were defined as "individuals who are on call to work when regular full-time employees are not available to work or to augment the work force in peak periods." Arbitrator Roberts found this language "precisely defined" the ProDrivers in  this case. He concluded:

The Parties clearly agreed to allow subcontracting, however, failed to specifically draw a distinction between a subcontracted employee and a temporary employee. The negotiators could have easily done so. However, the absence of any language in that regard makes it clear, at the face value of the Agreement, that a subcontract and a temporary employee are in fact, one in the same. And Article 6.08 is unambiguous, in that, it even leads off with the phrase "in no event." And in my view, that particular phraseology is definitive and without exception.

The Arbitrator also found that, while not necessary to his conclusion, the evidence suggested that Economy and ProDrivers were joint employers.

In line with his conclusion, the Arbitrator ordered the Company to pay to unit employees the difference between their hourly rate and the twenty dollar per hour rate paid to the contract drivers.

Economy sought unsuccessfully in the District Court  to vacate the award. (here) The Court found no basis to set aside the award. There was no allegation fraud and no claim that the issue wasn't properly before the arbitrator. Contrary to the Company's claim that the Arbitrator ignored the "unqualified" right to subcontract, the Court concluded that whether or not "correct," the Arbitrator's award was simply an interpretation of the relationship between the management rights provision and the temporary employee language. It found that, at its core, the Company's claim was simply a disagreement with the Arbitrator's interpretation of the Agreement.

The Company appealed, and the Sixth Circuit affirmed. Economy Linen and Towel Service, Inc. v. Teamsters Local 637. It noted the lenient standard of review of arbitration awards and, like the District Court, found that the award simply interpreted the interplay between several provisions of the Agreement. The Company's claim was simply one of "interpretive error" and was beyond the reach of the Court's review.

Concurring, Judge Batchelder wrote:

I write separately to say that I concur only because I am bound by law to do so. See Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S.Ct. 524, 529 (2019) ("We have held that a court may not rule on the potential merits of the underlying claim that is assigned by contract to an arbitrator, even if [the arbitrator's decision] appears to the court to be frivolous." (quotation marks omitted)).

At best, in my view, the arbitrator's interpretation of the provisions of the CBA at issue here is not totally implausible. That it is clearly wrong is not enough.

Note: Several days after this decision, a different panel of the Sixth Circuit reversed a decision confirming an award of Arbitrator Michael Long, finding that the Arbitrator's remedy for a claimed change in retirees' health care benefits didn't "construe the contract" but improperly relied on a plan other than the one set forth in the cba. The dissenting judge observed  "This case illustrates the difficulty of according appropriate deference to an arbitrator's decision. It is easy enough to say that we must affirm an arbitrator's decision so long as it was not "so untethered from the agreement that it casts doubt on whether he was engaged in interpretation." ... Perhaps it is sometimes less easy to apply this standard, but apply it we must. Unfortunately the majority did not do so here. Rather, it substitutes its judgment where the arbitrator's ought to remain." International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. TRW Automotive U.S. LLC.

Recent filings to vacate arbitration awards - Past Practice,Outsourcing, Remedies

   
Chicago Tribune, LLC v. Teamsters Local Union No. 727 (ND Ill.)

The Chicago Tribune seeks to vacate an Award of Arbitrator Amedeo Greco. Arbitrator Greco upheld a grievance claiming that the Company refused to pay employees "gap time" pay the Union claimed was required by the cba and past practice. The Tribune's Complaint asserts that the Arbitrator exceeded his authority and improperly modified the cba "when he gave legal effect to a past practice which finds no support in the clear and unambiguous terms of the CBA."  According to the complaint:

Despite the fact that the CBA does not provide for the payment of ten hour gap time pay to a driver for performing work during the driver's scheduled day or night shift, the Arbitrator wrote such a requirement into the CBA and disregarded the limitations on his authority.


Rockwell Collins, Inc. v. International Brotherhood of Electrical Workers Local 1362 (ND Iowa)

Arbitrator Robert Grey sustained a grievance filed by IBEW Local 1362, concluding that Rockwell Collins violated its CBA when it unilaterally outsourced the Custodian and Led Custodian classifications at its Cedar Rapids facility. (Award) Rockwell Collin’s  has filed a Complaint seeking to vacate the award, alleging that the arbitrator "ignored or went beyond the plain text of the collective bargaining agreement and essentially rewrote the collective bargaining agreement creating requirements on Rockwell Collins that did not exist in the agreement as negotiated by the parties."



The Harrison County Coal Company v. United Mine Workers and United Mine Workers Local 1501 (ND WVa)

The Company seeks to vacate an award of Arbitrator Thomas Hewitt sustaining a grievance claiming that the Company had improperly outsourced the installation of a belt drive. The Arbitrator rejected the Company's argument that the installation of a "new, never before used' belt drive was construction work which it could contract out. Arbitrator Hewitt concluded that "the building, installation and moving of belt drives is a totally protected activity at this mine ... ." The Company's  complaint  asserts that the Arbitrator exceeded the scope of his authority, that his award failed to draw its essence from the cba, and that his award of monetary remedies in the circumstances of the case was contrary to "binding arbitral precedent."'


The Monongalia Coal Company Mine Workers and United Mine Workers Local Union 1701

United Mine Workers and United Mine Workers Local Union 1701 v.The Monongalia Coal Company

These two cases involve the same parties, but address different disputes.

Monongalia County Coal Company seeks to vacate an  Award of Arbitrator Ralph Colflesh, finding the Company breached its contract with the UMW when it outsourced certain cabling work at its mine. He found, however, that no bargaining unit employee lost wages as a result because they were either working when the work was performed or had declined the opportunity to work.

Nevertheless, in light of his finding of a contract violation he “join[ed] Arbitrator Drucker in awarding damages to to the Union for this breach, and concur with the principle implied in her award that in general every sustained grievance must have some remedy.” In contrast  to Arbitrator Drucker, he declined to award compensation to employees, noting his belief that employees should not be rewarded for not working when they had the opportunity.” (Arbitrator Drucker’s award can be found here; the Company’s complaint to vacate that award here.)

Instead he ordered the Company to pay the Union its costs for preparing and presenting the grievance, including any legal fees incurred in the grievance preparation, as well as the per hour cost of the union advocate who presented the case at arbitration. In its Complaint  to vacate the award, the Company alleges that the Arbitrator “expressly rejected binding precedent” and exceed his authority by ordering payment of the Union's expenses which the contract required be borne by the union.

In its Complaint, the UMW seeks to vacate an Award of Arbitrator William Babiskin denying a contracting grievance. The Arbitrator declined to address the merits of the grievance because he found that there was no financial loss to any employee. Arbitrator Babiskin noted: " I am a strong believer in the principle of 'no harm, no foul." The Union's complaint asserts that the Arbitrator ignored "the plain language" of the agreement, denied the Union a fair hearing, and instead relied on his own notions of industrial justice to deny the grievance.

Update: The Court's decisions in the coal cases are addressed in  Coal Industry Decisions - Construction or maintenance, remedies for contracting, and "production of coal". The Rockwell Collins case was dismissed as settled. The Court in the Chicago Tribune case rejected the Company's request to vacate the award. It observed that "The Tribune's quarrel is not with the arbitrator's award but rather with its interpretation of it." It granted the Union's request to confirm the award but noted that a determination of whether there were any damages requires further proceedings. Chicago Tribune, LLC, v. Teamsters Local Union No. 727

Arbitrators improperly adding obligations to parties' contracts

Two recent decisions overturn arbitrators' awards, finding that the arbitrators acted in excess of their authority by adding obligations to the cba or by ignoring its provisions.

Definition of Gross Misconduct

In National Children's Center v. SEIU Local 500 the District Court for DC overturned the award of the Arbitrator, concluding that he had improperly ignored the terms of the cba.  The cba provided that just cause was defined as "NCC's determination that an employee does not meet this high standard [of performance, quality and care], so long as NCC does not exercise its discretion in a manner that is arbitrary, capricious or without foundation ...." NCC had also issued rules, as provided for in the cba, which defined gross misconduct as including removing, without permission, NCC property or the property of another employee.

Grievant had, at the request of an employee who had been dismissed, removed from the facility certain equipment the dismissed employee claimed belonged to her. After grievant informed NCC of what she had done, NCC terminated her employment for claimed violation of the rule.

The arbitrator concluded that grievant's conduct had violated the rule, but that her conduct did not constitute "gross misconduct." The arbitrator determined that NCC had therefore acted arbitrarily and capriciously when it terminated grievant's employment. He ordered grievant's termination reduced to a 30 day suspension.

NCC sought to set aside the award, and the District Court granted the motion. It concluded:

In this case, the arbitrator denied NCC the benefit of the bargained-for terms of its collective bargaining agreement, specifically, NCC's right to distinguish and define "gross misconduct." The arbitrator acknowledged that Section 703.6 fulfilled legitimate management purposes and that [grievant] had no reasonable excuse for her ignorance of the rule. ... Nonetheless, the arbitrator contravened the express terms of the collective bargaining agreement by finding that [grievant's] conduct "d[id] not rise to the level of gross misconduct." .... The collective bargaining agreement reserved to NCC the discretion to craft workplace rules and define "gross misconduct." See 2011 Collective Bargaining Agreement at 25. The arbitrator therefore ruled in contravention of the collective bargaining agreement by "substitut[ing] his [own] judgment or discretion for NCC's judgment or discretion." ...

 The court found that rather than interpreting the cba, the Arbitrator had substituted his judgment for "the clear management rights provided in the collective bargaining agreement."

The court therefore remanded the dispute to the arbitrator for a determination of whether NCC acted in an arbitrary and capricious manner when it fired grievant for what the rule defined as gross misconduct.

Implied terms of the cba


In County of Lebanon v. AFSCME District Council 89, Local Union 2832, the Commonwealth Court of Pennsylvania affirmed a lower court's refusal to confirm an award of Arbitrator Jane Rigler that had ordered the County to rescind the contracting out of a nursing homes' dietary department.

The contract between the County and the Union provides that "[i]n the event the [County] sells, leases, transfers or assigns any of its facilities" it is obligated to attempt to place the affected employees with the new employer and to provide thirty day notice to the Union. The Arbitrator concluded that this provision was applicable to the contracting of the dietary department, but that while the contract imposed no explicit prohibition on contracting out the work, an implied obligation of good faith and fair dealing barred the County from doing so without first  "fully and fairly dealing with the Union." The Arbitrator ordered the County to resume operation of the department and offer reemployment to all affected employees.

The County sought to set aside the award, and the Court of Common Pleas agreed. The Union appealed, and the Commonwealth Court has now affirmed.

In rejecting the Arbitrator's finding of an "implied obligation" the Court observed:

Notably, the Arbitrator ... found that the CBA "impose[d] no explicit constraint on the County's ability to contract out Cedar Haven, dietary services, work."... The Arbitrator then concluded that because the Article was silent as to the circumstances, the Article was also silent as to the County's pre-transfer obligations to the Union, and that such pre-transfer obligations should include participation by the Union in the decision-making process. Such a conclusion, however, is contrary to the plain language of Article XXXIII, which expressly lays out the County's dual pre-transfer obligations to the Union: (1) attempted placement of employees and (2) at least thirty days' notice. The arbitrator may not have liked the terms, or thought they offered the Union insufficient protection, but she was "confined to interpretation and application" of the CBA and was not free to "dispense [her] own brand of industrial justice." ... The Arbitrator, in other words, "was obliged to apply the agreement as written, without imposing additional terms that modify and limit what the parties expressed."

Concluding that the Arbitrator's decision attempted to impose duties that were not provided for in the cba, the Court affirmed the lower court's refusal to enforce the award.