Arbitrator: City ordinance could not modify firefighters pension plan set forth in cba

Arbitrator Michel Ryan has upheld a grievance filed by IAFF Local 2748 against the City of Warwick, RI. (here)

 The grievance asserted that the City had unilaterally modified the firefighter's pension plan through passage of a City ordinance creating a two tier plan applicable to new hires.  Arbitrator Ryan initially rejected the City's claim that the grievance had not been filed in a timely manner, accepting the Union's explanation that it waited to file the grievance to see if the City would in fact implement the new plan. He noted further that, in any event, the grievance was timely "as a 'continuing' violation, which would have the same remedy because nothing actually changed more than 30 days before the grievance was filed."

On  the merits, he concluded that "There is really no dispute that the two-tier plan under the Amended Ordinance violates the CBA." He rejected the City's claim that, as a matter of law, the ordinance superseded the CBA, and noted further that the changes made by the ordinance had been "specifically and repeatedly" rejected during collective bargaining.

He concluded:

     As a general matter, the task of a labor arbitrator is to interpret and apply the collective bargaining agreement. The grievance-arbitration forum is not a court of general jurisdiction, and the expertise and authority of arbitrators do not extend to construing statutes and court precedent. More specifically, the parties here have agreed, in Article XII, §1, that the contractual grievance procedure "involv[es] the interpretation, application or alleged violation of the provisions of this Agreement and/or the rules and regulations of the Fire Department." This language does not include external law.
     Since the two-tier plan under the Amended Ordinance violates the CBA, we find for the Union on the merits issue. As a remedy, we will order the City to cease any enforcement or implementation of that plan, to comply with the terms Article XIV, and to make whole all affected members of the bargaining unit.

The City representative on the panel dissented.

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

Does administrative time off to vote apply to participation in caucuses?

That was the issue before Arbitrator Shyman Das in a case involving the US Postal Service and its three major unions.

The USPS Employee and Labor Relations Manual (ELM) provides:

519.321 Policy

...postal employees  ... who desire to vote or register in any election or in any referendum on a civic matter in their community are excused for a reasonable time for that purpose on a day they are scheduled for work.

The issue before Arbitrator Das was whether this provision applied to local party caucuses during which registered voters express their preference for a candidate to receive their party's nomination for President of the United States.  The particular dispute arose in connection with a Democratic caucus held in Nevada during the 2016 campaign. The Postal Service denied the request of an employee for paid time off to participate.

At the arbitration, USPS asserted that caucuses differ significantly from state level elections run by state governments. A caucus, they argued, was unlike a traditional election in that it required a participant to stay for the duration of the cause and could involve multiple rounds of voting. It also claimed that it had a consistent policy of not granting administrative leave for caucuses.

Rejecting the position of the Postal Service, Arbitrator Das concluded that the language was broad enough to encompass party caucuses. He noted:

The issue in this case is whether the policy expressed in 519.321 and the provision for paid leave therein extends to participation in local party caucuses in which registered voters express their preference for a candidate to receive the party's nomination for President of the United States. The results of such caucuses play a direct role in the selection of delegates who ultimately determine the party's nominee. Participation in such caucuses constitutes "voting" in an "election" and equates to voting in a primary secret ballot election in terms of an employee's "exercise [of] their voting rights." From the standpoint of the policy expressed in 519.321 there is no meaningful basis for distinguishing between voting in a Presidential nomination caucus and in a Presidential primary election for which administrative leave is granted in accordance with the provisions of 519.32.

[footnote omitted]

Arbitrator Das also rejected the Service's assertion of a consistent practice of denying administrative leave for caucuses. He noted that two letters from headquarters to the field articulated that position, but one related to the dispute that was the subject of the grievance, and a second was issued prior to the 2012 election when the Democrats did not hold caucuses. He also noted that in the 2008 election two grievances protesting the denial of administrative leave for caucus were settled on a non-citable basis. The Unions also pointed to two prior regional awards supporting their position which, while not binding, arguably provided guidance for this dispute. In light of all of this, Arbitrator Das concluded that the record was insufficient to support the existence of "any sort of practice or of a consistent policy  known to and acquiesced in by the Unions."

Arbitrator Das' award can be found here.

3M succesfully terminated a past practice but contract language supported grievance

The Steelworkers union represents a unit of production employees at 3M's Cottage Grove, MN facility. The facility is fueled by natural gas and, on January 5th, 2014, 3M was notified by the utility company that because of the severe cold it was curtailing their use of gas. As a result, certain gas-dependent production lines were shut down and, because of the resulting loss of work, the affected employees were temporarily laid off. This gas curtailment continued until the afternoon of January 7th. This was the first time in at least ten years that the gas supply to the facility had been curtailed. Because of continued cold weather gas supply was again curtailed from January 25th through January 29th. Once again, certain employees were temporarily laid off as a result of loss of work caused by the curtailment. The Steelworkers filed grievances claiming in both instances that 3M had breached its cba by laying off employees out of seniority order.

In support of the grievances the Union claimed that the Company had breached an established past practice of providing employees with a 40 hour work week guarantee. It also relied on language in the cba providing that "The principle of Plant Seniority shall be applied in cases of layoff, recall, promotion, demotion, reduction and transfer of employees ...." 3M maintained that even if a past practice had existed it was effectively terminated in the last round of negotiations It also pointed to language in the cba providing that employees reporting for work without prior notice that work was not available would be provided with a minimum of four hours pay "except in cases beyond the control of the Company" as evidence that the layoff language did not apply in this situation.

Arbitrator Mario Bognanno rejected the Union's claim of breach of a binding past practice. He found that 3M had notified the Union during negotiations that it was repudiating certain practices, including "Granting employees work when work is not available." He noted:

It is firmly established in labor law, labor arbitration and industrial relations that an enforceable past practice may not be changed during the term of a CBA, without mutual assent. This is the rule, whether the term of employment is implied (i.e., an enforceable past practice) or expressly stated in CBA language. However, absent mutual assent, implied and expressed terms of employment may be changed during the negotiations of a successor agreement. In the present case, 3M repudiated the practice in question (i.e., it withdrew “mutuality”), during negotiations of the current CBA. At that point, for the practice to have continued, the Union, through negotiations, would had to have the terms of the practice explicitly incorporated into the CBA or to have persuaded the Company to objectively retract its expression of repudiation. The record evidence is that the Parties neither incorporated the referenced practice into the current CBA nor did 3M recant. (Un. Ex. 6) For these reasons, the undersigned rejects the Union’s claim that 3M violated an enforceable past practice when it laid off the Grievants in January 2014.

The Arbitrator then turned to an analysis of the impact of the express language of the cba, ultimately reaching different decisions on the two layoffs. With regard to the first, the Arbitrator concluded:

 Record evidence supports the conclusion that the actual curtailment of gas on January 5th and the resulting need to close down production lines was unprecedented, or nearly so, even though Minnesota’s freezing cold January weather is anything but unprecedented. Thus, even though the gas curtailment in question was a possibility, at least to Mr. Rogers, it is properly and sensibly characterized as a condition that 3M could not have reasonably expected. ...

[A]s the Union accurately pointed out, the CBA does not expressly allow management to disregard Article 8, §8.01 and §8.07’s seniority rules. However, as the Company accurately observed, arbitrators often hold that layoffs may be exempted from the seniority rule when unusual, unexpected, unplanned, even emergency, circumstances dictate same. Mr. Wakefield’s decision to have immediately shut down the FATT production lines at 10:00 p.m. on Sunday, January 5th was a necessity.

...

The first of 3M’s two (2) January 2014 layoff events was an unforeseen emergency that required 3M to immediately shutdown the FATT production lines unfettered by the seniority rule and its time-consuming procedure. Under these circumstances, to penalize 3M would be unjust and wholly inequitable. Thus, under said circumstances, the undersigned concludes, to penalize 3M would be to impose a remedy that the Parties never intended under Article 8. For these reasons, Grievance #2014-14 is denied.

With regard to the second shutdown, however, Arbitrator Bognanno concluded that the Company was now on notice that a shutdown was a possibility, and the Union's grievance made it clear that the Union would be seeking to enforce the seniority provisions of the cba. He sustained the grievances regarding the second layoff, noting:

... it cannot be concluded that on January 26th 3M was confronted by an unforeseen emergency situation. Such an event either was or should have been reasonably anticipated. The record evidence does not credibly explain why 3M did not, as a contingency matter, execute Article 8’s bidding/bumping process among employees working in production operations that most likely would be affected by a gas curtailment. At a minimum, it should have done so during the week of January 19th.In effect, in a contract-compliant way, 3M should have pre-determined who to layoff in the event MERC again cut off its supply of gas. Under the circumstances that prevailed on January 26th, Article 8’s seniority rights would have no meaning whatsoever unless, facing layoff, the affected senior employees were given the opportunity to bid jobs held by junior employees, jobs that they were qualified to work. 

Arbitrator Bognanno's award can be found here.

Terminating a past practice

Arbitrator Paul Glendon has found that the City of Toledo breached its agreement with the Toledo Police Patrolman's Association when it unilaterally prohibited officers from engaging in outside employment at any establishment primarily in the business of dispensing alcohol.

The parties' agreement prohibits any employee of the City from accepting employment that is adverse to or in conflict with the employee's employment. Notwithstanding this language, and for in excess of thirty years, officers had been allowed to work outside of (e.g. in parking lots, streets, etc).establishments primarily engaged in dispensing alcohol. The parties referred to this as "projecting." The City, without objection from the Union, did prohibit projecting at  businesses that were the subject of an investigation or prosecution for criminal or liquor license violations.  In March of 2014, however, the Chief issued a Notice prohibiting all such employment. The City maintained the Chief was simply exercising a management right in deciding that any outside employment at such an establishment was adverse to and in conflict with police employment.

In addressing the Union's grievance, Arbitrator Glendon concluded that the ability of officers to work outside of establishments primarily in the business of dispensing alcohol was an established past practice that the City could not unilaterally alter during the contract term. He agreed with the Union that the thirty year practice "met the usual criteria of duration, consistency and mutuality to be a binding past practice clarifying the meaning of the 'adverse to or in conflict with' standard."

 Arbitrator Glendon cautioned that his determination did not mean that the practice could never be terminated, but found that the City had failed to establish a basis for doing so. He noted:

The City could give notice at the end of the contract term that it no longer would recognize it under a successor agreement, thereby making it a subject for bargaining. To justify unilateral termination of the practice during the contract term, however, the City had the burden of proving that circumstances under which it was established and perpetuated no longer existed and that current circumstances are such that it is reasonable to believe any and all  projecting would be adverse to or in conflict with police employment. Absent clear, convincing evidence to that effect, the City's unilateral mid-term prohibition of all projecting would be an arbitrary, unjustified exercise of its "administrative responsibility" recognized in [the cba].

Accordingly he declared the Chief's March notice to be void ab initio and remanded the dispute to the parties for negotiation of the monetary remedy.

The Toledo Blade reports on the decision here, and links to Arbitrator Glendon's Award here.

Seventh Circuit: Arbitrator's award ordering company to pay Local Union President and Benefits Representative violates public policy

Titan Tire purchased a tire manufacturing facility in late 2005. It subsequently entered into a cba with the Steelworkers. Until October of 2008, Titan paid the full union salaries of the Local's President and Benefits Representative. Starting in October, however, Titan ceased making these payments, claiming that they were in violation of Section 302(a) of the Labor Management Relations Act. Titan premised its claim on the fact that the individuals holding these positions did not work full time for it and were not subject to its control, and because the Local also represented employees of the Freeport School District. The Union filed a grievance which was sustained by an arbitrator. A District Court confirmed the award, and Titan appealed. The Seventh Circuit has now reversed and issued an extensive opinion discussing the Section 302 issue.

The Court summarized the Arbitrator's award:

After the hearing, the arbitrator issued an opinion sustaining the union's grievance and ordered Titan to reinstate direct salary payments to the President and Benefit Representative. The arbitrator reasoned that Titan's practice of directly paying the President's and Benefit Representative's salaries for two and a half years was "enough time to invoke the doctrine of past practice." The arbitrator further concluded that such payments were "by reason of their former employment" with Titan and "in accordance with the collective bargaining agreement" and as such were legal under Section 302(c). The arbitrator added that "[t]he effect of the bargained-for payment is significant," totaling nearly $80,000 annually for the President and about $50,000 for the Benefit Representative. And that "[t]his savings of expense could result in either lower Union dues or at least no raise in Union dues," and thus "[t]he payment by the Company of the President's and Benefit Representative's salaries is therefore a direct benefit to the Union membership."

Noting the limited scope of review of arbitrator's awards, and its obligation to accept the facts as found by the arbitrator, the Court nevertheless found the award contrary to the statute and therefore violative of public policy. The Court reviewed its own prior decisions in this area, and decisions of the Third, Second and Ninth Circuits addressing similar claims, with differing results. It noted that preventing bribery is not the sole purpose of the statute's prohibition of an employer providing  "money or other things of value" to representatives of its employees. It further noted that the prohibition also served the statute's goal of preventing conflict of interest. The Court was careful to explain that its decision in no way called into question no-docking clauses, but determined that the facts here went well beyond that exception. The Court concluded:

 The arbitrator found that the labor agreements between Titan and the union required Titan to pay the full-time salaries of Local 745's President and Benefit Representative. However, such an agreement violates the plain language of Section 302(a) of the LMRA and is not exempt by Section 302(c) because the President's and Benefit Representative's full-time salaries are not vested rights earned "by reason of" their former employment at Titan. Rather, the President and Benefit Representative earn their current salaries because of their service to Local 745 members. Because the arbitrator's order to Titan to reinstate direct salary payments to the President and Benefit Representative would require Titan to violate Section 302, its decision must be vacated. For these and the forgoing reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.

The Court's opinion in Titan Tire Corp. v. United Steel Workers can be found here.

Seniority, past practice, vacation selection and a police department reorganization

Arbitrator Harry MacLean has issued an award rejecting a grievance filed by the Denver Police Protective Association claiming that the City of Denver violated officers' seniority rights when it changed the unit in which officers selected vacations.

Prior to the change, the Denver Police Department had been divided into six districts. Officers selected their shift and regular days off on the basis of district wide seniority every 28 days. Once a year officers selected their vacation for the coming year, also on a district wide basis. Under the direction of a new Chief, the police department reorganized the districts into twelve teams. Each team had a regular shift and set days off for a twelve month period. The officers in each district bid by seniority onto  a team, and vacations were selected based on seniority within the team rather than within the district. The Union grieved the change, claiming that it violated the terms of its bargaining agreement. The contract provided:

Throughout the department, voting in each Bureau/District shall be by seniority in rank. ... Division chiefs may permit voting within individual units subject to the approval of the Deputy Chief of the affected area of Operations or Administration. The Chief of Police may establish exceptions to this rule as he deems necessary for the efficient operations of the department.

The Union maintained that the past practice of the parties had limited the definition of "individual units" to specialized units such as SWAT, and argued that the definition was limited to units as they existed when the most recent contract was adopted. The City, however, pointed to language in its Police Department manual defining a unit as "any number of officers ... regularly grouped together under one head to accomplish a police purpose."

Initially Arbitrator MacLean concluded that the Union had not established that the practice it claimed was "unequivocal", and that the Union had not established that the City had agreed to the limited definition suggested by the Union. The Arbitrator also noted that the City's Charter "is quite clear" in retaining the right to manage certain aspects of the Department. The Charter prohibits bargaining on police department staffing, the number of shifts, and the assignment of work to officers.

Arbitrator MacLean noted:

     [T] City has a right as it sees fit to organize the police department, to staff the police department, and to assign work to police officers. Any provision in the CBA which seeks to limit or restrict these rights is invalid as contrary to Section 9.8.3(C)(ii) of the Charter.

 The Union argued that it was not challenging the right of the City to reorganize the districts into teams, but only the manner in which vacations were selected under the new structure. Arbitrator MacLean determined, however, that the team concept would be "decimated" if officers were allowed to select vacations on a District wide basis. He concluded:

The Chief was clearly acting within the authority reserved to him in the Charter to reorganize the department. The new team models are sound and unquestionably beneficial. The language of the CBA provisions cannot reasonably be read in such a way that it in fact nullifies this otherwise legitimate exercise of managerial authority.

CBS Denver reports on the award DPD Reorganization Upheld, and links to Arbitrator MacLean's award here.

The issue of "nondelegable" rights is discussed in a previous post Arbitration, Management Rights and Public Policy.

Statute of limitations, advisory opinion, past practice, contempt

The Massachusetts District Court addressed all of these topics in deciding cross motions to set aside and confirm an arbitrator's award. Western Massachusetts Electric Co. v. IBEW Local 455  The dispute arose when Western Massachusetts Electric sought to send electricians to Connecticut to assist a sister company in repairing storm damage. After its initial attempt to solicit volunteers proved unsuccessful, WME announced that it would assign employees to travel. Ultimately, however, enough employees volunteered and involuntary assignments proved unnecessary. The union nevertheless sought to arbitrate its claim that the Company was without authority to assign employees out of state without the Union's consent.

At the arbitration hearing the Union presented evidence it claimed showed that WME violated past practice by announcing that it would force employees to work in Connecticut. In contrast, WME maintained that it had previously sent employees to Connecticut for training, to pick up parts, and for recertifications. It also relied on its contractual right to assign the work force. Additionally it argued that the case was moot since no one was actually forced to go, and claimed that the Union was improperly seeking an advisory opinion. The arbitrator agreed with the Union, finding that the case was not moot since the dispute could readily recur and there remained a live dispute. In addition, relying on an earlier arbitration between the parties that found that past practices became equivalent to a written term of the contract, he found the evidence supported the Union's grievance. Because no one was harmed, however, he awarded no monetary remedy. WME filed suit to set aside the award, and in response the Union sought to confirm it.

The District Court first granted the Union's motion to dismiss WME's action as being barred by the applicable statute of limitations. WME had filed its complaint eighty nine days after receipt of the arbitrator's award. Rejecting WME's claim that the applicable limitations period was the ninety day period of the Federal Arbitration Act, the Court instead found that the applicable period in Massachusetts was the thirty days, borrowing the period from Massachusetts law. Accordingly, the court  dismissed WME's action to set aside the award, but then turned to the Union's motion to confirm.

The Court agreed with the arbitrator that the case was not moot, noting that the arbitrator applied essentially the same standard as would a court. The court also found the arbitrator plausibly determined that there was no past practice of unilaterally assigning employees out of state. Finding that the arbitrator's decision was within the scope of the cba the Court agreed that the award should be confirmed.

It rejected, however, the Union's contention  that any future violations would be subject to the court's contempt power, noting instead that in any future cases an arbitrator must determine the weight to be afforded to the earlier award.

Arbitrator concludes past practice prevails over clear contract language

Arbitrator Christine D. Ver Ploeg has issued a decision involving the City Of Minnetonka, Mn. and Teamsters Local No. 320. The dispute arose from a claim for severance pay for grievant, who had voluntarily resigned his position as a police officer for the City. The relevant language of the agreement provided that a departing employee would be eligible for severance when, inter alia, “the employee is eligible, based on age and/or service requirements, for an annuity from the Public Employees Retirement Association”.

At the time of his separation from employment grievant was 46 years old and had 23 years of service. To be eligible for an annuity from PERA an officer must be at least 50 and have three years of service or meat the “Rule of 90”, i.e. a combination of age and service totaling 90. Grievant did not meet these requirements. The City denied grievant’s request for severance. The Union grieved, claiming the contract required grievant to meet only one of the conditions, relying on the contract language providing eligibility if an employee met "the age and/or service requirements…”

The City argued that the language was ambiguous and, in any event no City employee had ever been granted severance based on the Union’s interpretation of the language. 

Initially, the Arbitrator concluded that the contract language supported the union. She reasoned: The question is whether the phrase 'based on age and/or service requirements'can in any way be construed to mean ‘both.’ It cannot. For this language to mean ‘both,’ it would have been reasonable, easy and obvious for the parties to use the word ‘and’ rather than ‘and/or.’ On its face ‘or’ does not mean ‘both.’

The Arbitrator next turned to the City’s past practice argument. She noted that the City faced a significant challenge on this point; it sought to amend the clear and unambiguous language of the contract. She noted that the Employer’s burden was high, but not impossible. 

The evidence showed that the contract language in issue was copied verbatim from the City’s Personnel Policy and that there was no discussion during the negotiations concerning the terms or how the City applied them. Identical language was also contained in two other labor agreements the City had with different unions. The City presented evidence that for 18 years the eligibility language applied to virtually all employees, both union and non union, and that it had always required employees to meet both the age and service requirements to be eligible.

In response to the question of “whether the City’s evidence of a past practice is ...so compelling that it should overcome the clear and unambiguous language of Section 29.13,” the Arbitrator concluded that it was. She determined:

For at least 18 years all separating employees, including two bargaining unit members, have been required to meet both the age and service thresholds to be eligible for severance pay.
***
This has apparently been such an accepted practice that until this grievance no employee-either union or non-union- has ever protested.

Another basis for finding that the Employer’s past practice prevails over contract language is found in the fact that the parties never actually negotiated the terms of Article 29, Severance Pay.


Based on this history the Arbitrator concluded that their intent was to maintain the status quo. 
Accordingly she concluded that despite what she considered the clear language of the contract the grievance would be denied.

Firefighters, Police Officers, Teachers- Three Awards

Fire Prevention Bureau’s Condonation of misconduct warranted mitigation of discipline:

 Arbitrator Edwin Benn has issued an award reinstating four Chicago firefighters and reducing the discipline on 44 others. The Chicago Sun-Times has a report about the case Arbitrator: Mileage padding ‘almost a work rule’ in fire prevention unit and Chicago Tribune columnist Eric Zorn Arbitrator goes the extra mile to help fire department cheaters has a link to the award here. 

The firefighters were disciplined for what the Arbitrator found to be their essentially undisputed actions in knowingly submitting inaccurate mileage reimbursement reports, enabling them to claim the maximum reimbursement each month. Arbitrator Benn noted that the employees’ conduct “clearly violates reasonable expectations of employees in the workplace” and clearly violated the applicable rules. However he found that the actions were “condoned- indeed, encouraged (as well as engaged in) – by their supervisors”. But for that condonation the Arbitrator concluded that the City would have been within its rights in terminating all of the grievants. Nevertheless, he found that “the condonation and supervisory encouragement for the FPB employees to submit the maximum amount allowable for mileage reimbursement instead of submitting actual mileage expenses incurred was so deep, long-standing and pervasive that it went beyond condonation to rise to the level of becoming a work rule in the FPB.”

The Arbitrator also concluded that while the city had not constructively discharged two of the grievants it had improperly refused to allow them to rescind their resignations. He therefore treated them as employees covered by the grievance. 

Noting that “the purpose of discipline is to send a corrective message to employees” the Arbitrator found the discipline imposed excessive and reduced each of the suspensions and reversed the terminations.

Mayor Emanuel has indicated he will not seek to overturn the award. Emanuel won't appeal firefighter mileage padding case.


City did not violate contract when it terminated the Police Department’s Support Car program:

 Downes Fishel Hass Kim reports on a recent decision of Arbitrator Clarence Rogers, and links to the award. The dispute involved the City’s actions in terminating a program that assigned a vehicle to each officer in the department for his or her exclusive use in the performance of their duties, and allowed the officer to take the vehicle home at the end of their shift and use it for personal purposes. The program was not expressly referenced in the cba, but the agreement did provide that all working conditions would be maintained “until good faith efforts have been exhausted between the Chief of Police or his designee and the FOP”

The newly elected Mayor (elected following the recall of his predecessor) issued a memorandum prohibiting all City employees from taking City owned vehicles home. This action was protested by both the Police Chief and the FOP. The directive was delayed for a week to allow the Chief, the Mayor and the FOP to discuss the issue before the directive took effect. After that meeting, certain employees were allowed to continue to take the vehicle home, while the program was discontinued for the remainder. 

Rejecting the Union’s grievance, the Arbitrator concluded that the evidence of the City’s fiscal problems supported the City’s actions and the Union had not met its burden of proving a violation of the contract. The Arbitrator observed:

           Private sector employers get their income through profits; and answer to the board of directors. The City depends primarily on taxation from its citizens to fund its operations. As a result, elected officials listen and answer to the concerns of their constituents. It should be noted that testimony was presented to show that the immediate past mayor was recalled by the citizens of Portsmouth. Also, the levy tax that was on the ballot before the Program was eliminated failed. The tax levy that was on the ballot after the Program was modified was passed.

           I am not suggesting that the public has a right to control or overrule the Agreement of the parties. I am saying the Agreement is subject to an interpretation which is consistent with the interests of the public.
The Arbitrator concluded that the meeting between the Mayor, the Police Chief, and the FOP satisfied the City’s obligations under the cba. 

School Board improperly modified teacher layoff procedures:

Nola.com reports on an award by Arbitrator James Sherman finding that the Jefferson Parish School Board violated the parties’ cba by unilaterally changing the order of layoffs. Jefferson Parish school officials slammed in arbitration ruling. The Jefferson Federation of Teachers links to the award here.

The cba provided that “If the Board shall determine that it is necessary to lay-off any teachers, such lay-offs shall be in inverse order of seniority, provided the teachers remaining are fully certified to teach the department /subject areas remaining to be taught.” During the term of the cba, the Board issued a new Reduction in Force Policy. Pursuant to the new policy, a teacher whose most recent appraisal rating was “unsatisfactory” or “needs improvement” would be laid off first. The union challenged the new policy and a hearing was held before Arbitrator Sherman.

Initially, the Arbitrator rejected the union’s efforts to challenge the determination that lay-offs were “necessary”. The Arbitrator observed “This sort of decision is one of the most sacrosanct of management’s prerogatives. No arbitrator should delve into the minutiae of whether a school board should lay off a specific number of teachers with one specialty while recruiting twice as many with a different specialty that may be in shorter supply in the district. It is not just a simple matter of numbers. It is a complex and slippery slope to nowhere”.

On the merits of the contractual issue, however, the Arbitrator upheld the grievance in a strongly worded opinion. He noted:

This case may not involve an investigation into whether layoffs were necessary, but that is not the point. These Teachers were not laid off. They were fired for a single cause. The problem for the Board was that they never proved that any of the sub-optimal performance appraisals issued to any of the 50 or so Teachers gave them just cause. ***
You can call it a layoff, but if it looks like a discharge, walks like a discharge and quacks like a discharge, then it is not a layoff. It is a discharge. These were not layoffs. They were discharges for unproven causes. This was an end run around the due process rights and freedoms from arbitrary treatment that lies at the core of the Parties’ Agreement. It was a premature and risky end run around the established standards of proof and guarantees of due process that characterize workplace discipline in a unionized setting.

 The Arbitrator remanded the dispute to the parties to determine how the impacted grievants could be made whole “in all procedural and substantive respects” but retained jurisdiction for the purpose of resolving disputes about the implementation of the award.

Arbitrator's reliance on past practice not beyond scope of authority

          A Texas Court of Appeals has rejected an attempt to overturn an arbitration award concerning buy back of unused sick leave.City of Laredo v. Mojica.

          The dispute arose when the City stopped buying back unused sick leave, claiming that the contractual buy back process was discretionary and the cost of buying back unused sick leave from all City employees would have been financially burdensome. The union asserted that the City’s decision to suspend the program violated the CBA.

          The arbitrator concluded that the contract did give the City discretion concerning the buy back issue, but “the City’s unvarying practice of exercising its annual option to purchase accumulated sick leave for more than 10 years reasonably has led the Union and its members to expect the City to continue to exercise the annual option absent a good faith reason to suspend the program.”

          In seeking to set aside the award, the City maintained that the arbitrator exceeded his authority under the contract by considering whether the firefighters’ expectation that the City would buy back their sick leave was subject to a “good faith” standard.

          In refusing to set aside the award, the court held:

Because Mojica alleged a violation of the CBA due to the City's past practices, this would affect the interpretation or application of the CBA's provisions. Therefore, we hold the issue of the City's past practices of buying back the firefighters' sick leave was an arbitrable issue

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Here, the CBA did not expressly state that the City's past practice of buying back sick leave or whether the City acted in good faith could be considered. But, even if the arbitrator made a mistake of fact or misapplied the substantive law when he considered the City's past practices, we find his consideration of the City's past practice drew its essence from the CBA