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

Arbitrator ignored Last Chance Agreement - Award vacated

The Sixth Circuit has affirmed a District Court decision vacating an award of Arbitrator John M. Felice. Tecnocap, LLC v. Graphic Communications Conference/International Brotherhood of Teamsters, Local 24M   Grievant was terminated after an absence caused by his car breaking down. Relying on a last chance agreement entered into by grievant and the Union, the employer terminated his employment. While acknowledging the LCA, the Arbitrator concluded:

 The fundamental principle underlying the discharge of an employee is that management must have just cause for imposing the discharge. The Company in the instant case appears to be applying its Policy in a punitive fashion. Simply because an employee is absent a specific number of times and accumulates a certain number of points does not, ipso facto provide for automatic discharge. No policy can vitiate the right of the Union to challenge whether the cause asserted for discharge is just under the CBA. To recognize such a policy through arbitration would be unreasonable since it would contravene the express intent and purpose of establishing and specifying cause for discharge under a labor agreement.

Finding that the Company had failed to meet the "fundamental indicia of just cause," the Arbitrator sustained the grievance and ordered the grievant's reinstatement with back pay.

The Company sought to have the award vacated and the District Court did so. here The Court concluded that the Arbitrator had exceeded his authority by ignoring the last chance agreement.

The Sixth Circuit (2-1) affirmed. It noted:

... an LCA is an agreed-upon predetermination of “just cause.” It is a concession by the employee (and the union) that the employer already had “just cause” to discipline the employee, who is thereafter on the grace of one “last chance” in exchange for a promise of compliance, the violation of which all three agree will be “just cause” for immediate discipline. ...  The employee is given ‘one last chance’ to correct his errant behavior, in exchange for which he agrees to certain conditions[,] . . . [the] failure to live up to [which] is [almost always] grounds for immediate dismissal, without the opportunity to file a grievance. . . .”). By signing the LCA in this case, both Witherow and the Union agreed that if Witherow had an unexcused absence in the next eight months, Tecnocap would have “just cause” to fire him.

Concluding that the LCA was an "agreed-upon predetermination of just cause" the Court affirmed the decision of the lower court.

Last chance agreements are also discussed in Last Chance Agreements- Arbitrability of triggering event

Arbitrator's reliance on "substantive due process" beyond the provisions of the cba, award vacated

The District Court in Kentucky vacated an award of Arbitrator Stephen L. Hayford reinstating an employee terminated pursuant to the employer's no fault attendance policy. Zeon Chemicals, L.P v. United Food and Commercial Works, Local 72D

Grievant's final absence resulted from his 30 day incarceration because of a plea to two charges of  battery in connection with an off duty incident. That absence put him at the point of termination pursuant to the employer's policy.  The Union grieved, arguing, inter alia, that the employer had the discretion under the policy to impose a thirty day suspension but refused to do so. The policy provided that, if an employee has 20 or more years of service "The Company may, at its discretion, impose a 30-day suspensions as an alternative to termination ... "  While acknowledging that grievant's accumulation of points under the employer's policy created prima facia proof that his discharge was for just cause, the Arbitrator concluded that other factors militated against termination. In particular he noted:

The substantive due process element of the contractual just cause standard contemplates that in this type of highly unusual situation, before terminating an employee under the ACP the Company will fully investigate the circumstances that led to the employee's exceeding  the 12 points total termination threshold of the Policy's progressive discipline procedure. This is especially imperative when the precipitating absences of an employee are due to off-duty misconduct that involves a felony criminal offense indicating moral turpitude on the employee's part. The Company's choosing not to investigate the events of July 15, 2015, that eventually resulted in [grievant's] being absent from the workplace ... was a serious omission on its part that arrived [grievant's] contractual right to substantive due process. It is a significant mitigating factor.

The Arbitrator reduced the termination to a 30 day suspension.

The District Court granted the Company's request to vacate the award. Rejecting the Arbitrator's reliance on the concept of "substantive due process" the Court concluded:

With this, it appears that the Arbitrator was not engaged in legitimate interpretation of the CBA, but referenced substantive due process solely to "dispense his own brand of industrial justice[]" in contravention of the explicit terms of the CBA. United Transp., 700 F.3d at 902 (citation omitted); see Mich. Family, 475 F.3d at 753. By employing the "interpolative reasoning underlying substantive due process," the Arbitrator effectively imposed upon the Company additional requirements found nowhere in the language of the CBA. The Arbitrator in this instance conflated the "just cause" language from Article III with the terms of the ACP to fashion a new requirement that the Company conduct an investigation into the facts surrounding an employee's accumulation of 12 points under the ACP. (Arbitration Award 21). Moreover, the Arbitrator essentially fashioned an additional subjective condition by requiring the Company "to make a full, fair and informed determination of whether exercise of its discretion to impose a suspension" and then held the Company failed in this regard, although the CBA explicitly leaves this determination to the Company's discretion and Jenkins never requested that he be suspended. (Arbitration Award 22). By the CBA's own explicit language, this provision of the ACP affords the Company the right to terminate any employee who exceeds 12 points under the attendance policy.

Finding that the Arbitrator "entirely disregarded" the plain language of the cba, the Court vacated the award.

Update: The Sixth Circuit reversed the decision of the District Court and reinstated the Arbitrator's award. Zeon Chemicals, L.P v. United Food and Commercial Works, Local 72D

Jury verdict finding excessive force insufficient to support termination

Arbitrator Peter R. Meyers overturned the termination of an Oak Park, Illinois police officer who had been dismissed for several alleged offense, most seriously the use of excessive force during his handling of a domestic violence call.  Illinois Fraternal Order of Police Labor Council and Village of Oak Park, Illinois.

An individual arrested and charged with domestic violence subsequently sued the Village and grievant, alleging grievant had used unnecessary and excessive force during the arrest.  A jury returned a verdict for plaintiff for $35,000. As a result of the verdict, the Chief ordered an investigation of the underlying incident. That investigation did not support a finding of excessive force, but did reveal what were alleged to be grievant's failure to have submitted a use of force form,  failure to properly secure evidence, and failure to provide the victim with paperwork required by the Illinois Domestic Violence Act.  Based on a review of transcripts in both the criminal trial for domestic violence and the civil case, the Village also concluded that "grievant had given untruthful testimony" that 'almost probably' met the standard of perjury under Illinois law.

Despite the initial conclusion that the evidence did not support a charge of use of excessive force, the Notice of Termination included this allegation as one of charges supporting grievant's ultimate termination.

In his award, Arbitrator Meyers noted that no explanation was provided for the inclusion of this unsupported claim except that the Chief's finding was based "almost entirely" upon the verdict in the civil case. Rejecting reliance on the jury's decision, the Arbitrator noted he must make the decision based on the evidence before him at the hearing, and that the award was entitled to no "precedential effect." He observed:

The Village has made much of the jury verdict in Durden’s favor in his civil rights suit against the Village and the Grievant, but this verdict has no impact here. Not only was the damages amount awarded to Durden basically nothing more than nuisance value, but Durden’s own testimony indicated that officers other than the Grievant were responsible for many of his claimed injuries and claimed civil rights violations. Just as a finding in an unemployment compensation hearing that the terminated employee was unfairly terminated has no weight or bearing on the subsequent arbitration over a just cause termination, so does a $35,000.00 judgment by a jury in a civil case where the standard of proof is different.

Based on the evidence and testimony presented at the hearing Arbitrator Meyers found no support for the allegation of use of excessive force. He also rejected several of the Village's other allegations as unsupported by credible evidence. Accordingly he found the termination to be without just case. Finding  merit to some of the other charges, Arbitrator Meyers converted the termination to a 30 day suspension.

Officer's use of force not unreasonable, Chief's subjective evaluation not supported by objective analysis

Arbitrator Daniel Saling upheld a grievance filed on behalf of a Tallahassee, FL police officer dismissed following an Internal Affairs investigation into a shooting incident. Florida Police Benevolent Association and City of Tallahassee The facts were largely undisputed. While on patrol, grievant had pulled behind what he believed to be a suspicious vehicle. The Arbitrator summarized what happened next:

On March 17, 2017, the Grievant was checking on a suspicious vehicle in a parking lot in front of a city owned building. When the Grievant got out of his marked patrol vehicle to speak with the occupant in the suspicious vehicle, the suspicious vehicle was placed in reverse and struck the Grievant's patrol vehicle, which then stuck the Grievant. The Grievant was without backup in a deserted parking lot and he drew his firearm and fired six shots into the driver side of the suspect's vehicle.

The vehicle left the area and was chased by Sheriff's Deputies.

 The Chief assigned the Department of Internal Affairs to conduct an investigation into grievant's actions during the incident. The initial report from IA found grievant's use of force reasonable. The Chief review that report and questioned the decision because it did not address the issue of "imminent danger" as set forth in the Department's Policy. That Policy provides "Officers may use deadly force only when they believe it is objectively reasonable to defend their life or the life of another person from imminent threat of great bodily harm or death." The IA investigator rewrote there report, changing the conclusion, and finding that grievant had not used reasonable force.  Grievant's employment was terminated, and the dispute was grieved and ultimately submitted to Arbitrator Saking for resolution.

Upholding the grievance, Arbitrator Saling concluded that grievant in fact "reasonably and objectively determined" that he was in imminent danger. Rejecting the conclusion of the modified finding he found:

The investigation by the lA Investigator was completed and there was a decision that the Grievant's conduct on the date of the incident, was within the provision of General Order 60, but the decision was changed when Chief DeLeo met with the lA Investigator and indicated that he subjectively did not believe the Grievant was in imminent danger. Chief DeLeo subjective evaluation of the incident is not supported by an objective analysis of the facts surrounding the incident.

Finding the Department's decision failed to follow the admonition found in the Supreme Court's Graham decision that an officer's judgment should not be evaluated based on hindsight, the Arbitrator ordered the grievant be reinstated with back pay.

A case containing a similar analysis is discussed in Oakland Police SWAT arbitration award - Just Cause not determined by reference to "Best Practices"

February Quick Hits

USM followed contract in layoff of faculty

Arbitrator Mark Irvings largely rejected a grievance filed by the Associated Faculties of the Universities of Maine  challenging the University's "retrenchment" (layoff) of faculty at USM resulting from economic pressures. While the Union challenged the need for layoffs, and offered its own analysis of the financial health of the system, Arbitrator Mark Irvings concluded that the University acted "for bona fide financial or program reasons" within the meaning of the cba. 

The Portland Press Herald reports on the decision USM followed contract when it laid off faculty members in 2014, arbitrator rules and links to a redacted copy of the award here. 

Court: Arbitrator did not ignore last chance agreement, upholds award

The US District Court for the Southern District has refused to overturn an award of Arbitrator Robert Simmelkjaer.  UNITE HERE Local 100 v. Westchester Hills Golf Club, Inc. Arbitrator Simmelkjaer sustained the grievance filed behalf of a bartender who had been dismissed. In 2010 Arbitrator Susan Mackenzie reinstated grievant following his termination for insubordination but imposed a last chance condition. Separately, the Golf Club entered into a last chance agreement with grievant in settlement of a dispute about a proposed termination in 201. In 2013 grievant was working as a bartender at a bereavement lunch. A participant complained about his behavior and the Club again terminated his employment. Arbitrator Simmelkjaer found that the Club had not established that grievant engaged in the conduct alleged. Additionally, he concluded that the last chance agreement entered into in 2011 was unenforceable because the Union was not a party to the agreement. He rejected the Club's claim that, since grievant was a shop steward, further participation by the Union was unnecessary. The Court concluded that the Arbitrator acted within the scope of his authority and his award was entitled to confirmation. (A similar issue is addressed in Last chance agreement doesn't bar arbitration when union is not a party)

City to appeal order confirming award reinstating police officer

Arbitrator Mark Reed sustained a grievance filed on behalf of a Guthrie, Oklahoma police officer dismissed for his actions in arresting his wife's ex-husband. Arbitrator Reed's award can be found here. The Arbitrator concluded that grievant's conduct warranted severe discipline but that an unfair investigation and grievant's length of service supported mitigation of the penalty. The City unsuccessfully sought to set aside the award, and it has now indicated its intent to appeal that decision. City Council appeals judge ruling that former Guthrie police officer should be reinstated.

Police discipline 

A column in the San Antonio Express News reviews the arbitration award that reinstated an officer involved in the fatal shooting of his girlfriend's ex-boyfriend and asserts Union undermines police chief in appeal process. The article links to the award of Arbitrator LeRoy Bartman here.

The issue of police discipline is the subject of news articles in Texas (Police disciplinary process questioned by McManus), Massachusetts (Discipline for Boston police officers frequently overturned Arbitrators rule in favor of officers three out of four times),  New York (Schenectady to appeal police discipline case to state's highest court) and California (How San Jose cop fired for combative Black Lives Matter tweets got his job back).

Court confirms award upholding termination of oboist

The District Court for the Western District of New York has rejected an effort to overturn an award of Arbitrator Robert Rabin upholding a termination. Grievant was an oboist with the Boston Philharmonic. The Court rejected the unsuccessful grievant's challenges to the arbitrator's evidentiary rulings, and declined the grievant's invitation to find a violation of public policy in the award. The Court denied grievant's claim that an award upholding a termination was contrary to public policy "because his profession as an oboist is extremely limited in terms of job opportunities."  The court's decision in Roy v. Buffalo Philharmonic Society, Inc. can be found here.

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

An employee of Southwestern Bell Telephone Company represented by the Communication Workers of America filed a grievance over her termination. At the initial step of the grievance process the Company, in the presence of a local Union representative, presented the grievant with a last chance agreement. Pursuant to the terms of the LCA, grievant would be reinstated but, for a period of 24 months, should grievant be suspended or terminated for conduct contrary to the Agreement "any grievance relating in any way to such suspension or dismissal will not be subject to arbitration." The grievant signed the agreement, but the Union did not.

Approximately three months later the employee was dismissed for poor work performance. A grievance was filed and pursued without resolution.  CWA demanded arbitration and the parties selected an arbitrator and scheduled a hearing date. At the hearing the Company, for the first time, refused to arbitrate the dispute. It claimed that the right to arbitration had been waived by the LCA. CWA filed suit to compel arbitration, and the District Court for the Western District of Missouri has granted the Union's request.

The Court described the issue before it as:

 whether the LCA entered into between [grievant] and SWBT supersedes the rights of CWA under the CBA with regard to the arbitrability of grievances. Specifically, Plaintiff contends [grievant's] termination, for alleged just cause, should be subject to arbitration pursuant to Article IV. Defendant claims the right to arbitrate under the CBA was waived when [grievant] voluntarily signed the LCA.

Rejecting the Company's contention that the right to arbitrate the dispute had been waived by the LCA, the Court concluded that the Union's absence as a party to the agreement rendered the agreement essentially unenforceable. The Court noted that the Eighth Circuit had previously held (in Coca-Cola Bottling Company of St. Louis v. Teamsters Local Union No. 688) that a last chance agreement between a Company and Union could effectively modify a cba and bar arbitration of the just cause issue in a subsequent dispute. It noted further, however, that the Eighth Circuit had more recently cautioned against too broad a reading of its decision. In Associated Electric Coop. Inc v. IBEW Local No. 53 the Court refused to bar arbitration where the Union was not a party to the LCA. The District Court also observed that in both cases resolution of the impact of the LCA took place after the arbitrator had issued an award. 

The Court agreed with CWA that:

CWA cannot be estopped from pursuing its right to arbitrate under the terms of the CBA in a contract between only SWBT and an employee. The terms of the CBA covering arbitration are between SWBT and CWA. Article IV references the Union and the Company's right to arbitrate. The CBA contains no provision which empowers an individual employee to waive CWA's rights under the CBA.

The Court's decision in Communication Workers of America v. Southwestern Bell Telephone Co. can be found here. Other issues arising under last chance agreements are discussed here and here.

Can an arbitrator disregard a last chance agreement?

Deciding what it describes as a case involving "unusual labor arbitration issues," the Eighth Circuit  overturns a district court and substantially confirms an arbitrator's award.

Grievant was employed by Associated Electric Cooperative, Inc. After being selected for a random drug test, grievant informed the Company that the test would show a positive result. He explained that he had smoked marijuana with family members while on leave to attend his brother's funeral. Grievant declined union representation, signed a standard form last chance agreement, and was suspended to undergo drug dependency treatment. When the test results were returned a little more than a week later, however, they were negative. Nevertheless, the Company kept grievant on the last chance agreement and continued his suspension and treatment. During his treatment grievant tested positive on two occasions and the Company terminated his employment prior to his return to work.

The Union (IBEW Local No. 53) grieved the termination and submitted the dispute to arbitration. The arbitrator upheld the grievance. He determined that the lca was "unconscionable" since the initial negative drug test established grievant had not broken any work rule, and that the continuation of the suspension after learning of the negative results was "indefensible."  He ordered the Company to reinstate grievant with back pay.

The Company sought to set side the award, and, in a decision discussed here, the district court determined that the arbitrator had exceeded his authority by disregarding the last chance agreement. The Union appealed, and the Eighth Circuit has reversed.

The Circuit court described the issue before it as:

 When an employer and employee enter into a last chance agreement ("LCA") enforcing the employer's drug policy without the union's participation, the employer subsequently invokes the LCA provision mandating discharge in the event of a violation, and the union claims this discipline was contrary to the "just cause" limitation in the grievance and arbitration provisions of the collective bargaining agreement ("CBA"), what is the appropriate standard of review (i) for the arbitrator, and (ii) for this court in reviewing the arbitrator's award?

While observing that it agreed with the district court's determination that the last chance agreement was not unconscionable when initially entered into, the Court concluded that the district court erred by reading the Court's previous decision in Coca-Cola Bottling Co. v. Teamsters Local No. 688 too broadly. In the Coca-Cola case, the court overturned an arbitrator who had disregarded a last chance agreement entered into between the company and union in resolution of a grievance. Here, however, the Union was not a party to the agreement and the lca itself was premised on the "mutual mistake" that grievant had violated the drug policy. In reviewing the instant grievance, the arbitrator "correctly focused" his decision on the just cause issue. According to the Court:

This focus did not permit the arbitrator to ignore the LCA, but it did mean he was not contractually bound to apply the LCA's mandatory termination clause if the evidence persuaded him there was not just cause to do so.

Noting the narrow scope of review, the Court concluded that the arbitrator decision on the termination was within his authority and his award should be confirmed.

The concurring opinion agreed that the award should be confirmed, but would not reach as far as it believed the majority had in determining that the absence of the union's participation in the lca rendered it unenforceable. 

The Court's opinion in Associated Electric Cooperative, Inc. v. International Brotherhood of Electrical Workers, Local No. 53, can be found here.

Arbitrator erred in voiding Last Chance Agreement

Associated Electric Cooperative sought to set aside an arbitrator’s award reinstating, with back pay, an employee who had violated a last chance agreement. The grievant had been placed on the LCA on April 18, 2011.  On that date he had been selected for a random drug test. Prior to taking the test, grievant informed management that he had smoked marijuana while on leave from the Company approximately 10 days earlier.  Grievant was then presented with an LCA. He declined union representation and was instructed to attend an EAP counseling session.  Grievant was placed on unpaid leave while attending the counseling and was required to submit to additional drug tests at the EAP office. Grievant’s initial drug test was ultimately determined to be negative, but a subsequent test in the EAP  office  was positive for traces of marijuana and a prescription drug (for which grievant did not have a prescription.)

On June 3d grievant was initially told that that he had been cleared to work, but later the same day he was contacted and advised of a positive result for an unprescribed drug.  On June 13, 2011 grievant was called by the plant manager and advised that his employment was terminated for violation of the LCA.

In the resulting grievance, the arbitrator concluded that the LCA, as applied in this case, was unconscionable. The arbitrator noted that at the time he signed the LCA grievant had broken no rule i.e. he had not smoked marijuana on company property, he did not act impaired at work and he had in fact passed the initial drug test.  Finding the LCA unenforceable, the arbitrator turned to the merits of the dispute and found grievant had been denied due process since he had been given no chance to explain before being terminated by phone, and because no investigation had been conducted.

The District Court in Missouri  granted AEC’s request to set aside the award. The court concluded:

While this Court does not sit in judgment of the arbitrator's factual or legal conclusions,... nor does it pass judgment on the validity of the arbitrator's interpretation of the agreement, as noted in Enterprise Wheel at 597, "an arbitrator is confined to interpretation and application of the [LCA]; he does not sit to dispense his own brand of industrial justice . . . . [H]is award is legitimate only so long as it draws its essense from the [LCA]." The record reflects that [Grievant] freely confessed to taking prescription drugs for which he had no prescription, an act proscribed by the LCA. [Grievant] expressly declined union representation. There is no evidence that [Grievant] was pressured or forced to sign the LCA. The employer is entitled to enforce a zero tolerance, drug free workplace, and the arbitrator cited to no authority supporting his conclusion that the employer was not entitled to rely on the terms of the LCA. Where the language of the [LCA] is clear, and unambiguous, and the parties agreed to it, they are bound by it.

The court's decision can be found here.

Update: The Eighth Circuit has reversed the District Court's decision. The Court's opinion is discussed here.

Reinstatement with Conditions - Last Chance Awards

Arbitrator Thomas Gallagher has issued an award in a dispute between the Teamsters and Associated Milk Producers. The case involved the termination of an employee for excessive absenteeism. While finding that the employee's record of poor attendance would ordinarily be sufficient  to justify his termination, the Arbitrator concluded that the employee's long service and his difficulty adjusting to a change from night shift to day shift merited a reduction in the discipline. Accordingly he ordered the grievant reinstated, but imposed certain conditions on that reinstatement:

   If the grievant fails to attend in accord with the conditions stated in the award, his reinstatement will end without the opportunity to grieve just cause issues. By force of this award, the parties will not be required to re-litigate just cause issues if grievant does not abide by the conditions of his reinstatement.
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 The award provided that grievant's reinstatement would end if he exceeded a listed number of tardies/lateness in the two years following his reinstatement. During the third year after his reinstatement the conditional nature of the reinstatement will end and grievant "will be subject to the same progressive-discipline standard the Employer follows for other employees..."

While reinstatement with conditions is not uncommon, especially in attendance cases or cases involving substance abuse, Arbitrator Anthony Sinicropi, in a presentation to the National Academy of Arbitrators in 1981, entered a note of caution:

It is important to stress that a conditional reinstatement may, in the abstract, be a suitable way of dealing with an industrial problem. In the final analysis, however, the parties must implement the award and, in the process, it is not uncommon that the conditions imposed by the arbitrator will cause another round of litigation in the arbitral forum, which in turn, may create continued antagonism between the parties. The arbitrator, rather than acting as the parties' contract reader, instead becomes a "legislator" and an important and sometimes unwanted fixture in the grievance process.

Negotiated last chance agreements have also, on occasion, generated their own disputes. Arbitrator Donald Ryce sets forth some of those issues in  Arbitrating A Last Chance Agreement (LCA).

Labor Arbitration in the Courts

General non-discrimination clause does not waive litigation rights, Pyett inapplicable

In Ibarra v. United Parcel Service the Fifth Circuit has held that a general non-discrimination provision in a collective bargaining agreement coupled with a grievance procedure that does not expressly apply to statutory claims is insufficient to waive an employee's right to a judicial forum for claimed violations of Title VII. According to the Court, the Supreme Court's decision in 14 Penn Plaza v. Pyett requires more than "broad but not specific language" to meet the clear and unmistakable waiver standard of Pyett.

Arbitrator's award that employee "retain seniority" does not require retirement service credit

An arbitrator found an employee had been disciplined for just cause but that termination was too severe. He ordered the employee reinstated but provided:"he is to retain his seniority, but to receive no back pay or benefits for the period he has been out of work..." The parties subsequently disagreed concerning the meaning of this phrase and the matter was ultimately presented to the Michigan courts. Reversing the lower court, the  Michigan Court of Appeals determined that the award did not require that the grievant be awarded retirement service credit for the time he was off work. Because grievant did not lose the seniority he had prior to his termination there was no failure to comply with  the award.  Michigan State Employees Association v. Department of Natural Resources.

Arbitrator must consider threshold factual issues to determine arbitrability

The contract between the Teamsters and Roundy's Supermarkets contained a provision that "the Employer may immediately discharge any Union members participating in any unauthorized strike, slowdown ...or other cessation of work, and such Union members shall not be entitled to, or have any recourse to, any other provision of the Agreement." Grievant was required to work overtime on a day he had planned to be off. His production level decreased, and Roundy's concluded that the reduction was  intentional, in protest of the overtime assignment. As a result they terminated his employment.The Teamsters disagreed with the conclusion that the decline in productivity was intentional, and sought to arbitrate that issue. Roundy's refused, and the matter ended up before the District Court in the Eastern District of Wisconsin. The District Court, analogizing the situation to a termination under a last chance agreement, concluded that the factual issue of whether grievant had engaged in an intentional slowdown had to be arbitrated.  If the arbitrator concludes that the precondition was met,however, grievant and the Union would have no further recourse under the contract. The Court found nothing in the contract that gave Roundy's the unilateral right to make the determination of the threshold factual issue. Teamsters "General" Local Union No. 200 v. Roundy's Supermarkets, Inc..

Reinstatement of grievant  who allegedly made racist comments upheld

Mesa Airlines sought to overturn an arbitrator's award reinstating a pilot, (who was also a union negotiator), who had been terminated after sending an allegedly racist email to several other ALPA members. Arbitrator Stanley Sergent  reversed the termination, concluding that the letter failed to rise to the level of harassment or threatening behavior as alleged in the letter of termination. Mesa claimed that the award violated public policy because it condoned racial harassment, that the System Board exceeded its authority by ignoring language of the cba and instead applying its own brand of industrial justice, and that the arbitrator exhibited bias by ignoring a piece of evidence. The District Court in Arizona reject all of these claims and confirmed the award. The court concluded "The Arbitrator did not exceed his jurisdiction by applying the workplace nexus standard or the progressive discipline standard because the CBA does not expressly mention either common industrial concept." Nor did the arbitrator ignore any relevant language in Mesa's anti-discrimination policy. Similarly, the failure of the arbitrator to comment on an email attached to Mesa's brief was insufficient to demonstrate bias. Finally, "Because no law prohibits reinstatement of an employee who makes offensive and racist statements that nonetheless do not constitute workplace harassment, " the court found no violation of public policy. Mesa Airlines, Inc. v. Air Line Pilots Association International.