Arbitrator's failure to follow prior award not a basis for setting aside award

So held  the Eight Circuit in SBC Advanced Solutions v. Communications Workers of America. The grievance in issue involved a claim by employees that they were performing work of a higher classification and were entitled to a pay differential. The cba called for such a differential when "qualified" employees were "temporarily scheduled or assigned" to perform such work for a period of two or more hours in a week. Arbitrator William McKee sustained the grievance. He initially rejected the Employer's assertion that the employees must be test qualified to perform the higher level work to be eligible for compensation. In doing so he relied in part on prior awards he had issued as well as evidence of bargaining history to conclude that the Union had rejected a Company proposal during contract negotiations that would have required test qualification.

 He then turned to the question of whether the employees had been "temporarily assigned" to perform the higher level work. He concluded that "a]n assignment of higher-level work is temporary until such time as the Company chooses to change the job description of the lower titles to include those duties." In reaching this conclusion Arbitrator McKee "respectfully depart[ed]" from the awards  of two prior arbitrators who had determined that work assignments ceased to be temporary once they became a permanent part of an employee's workload. Arbitrator McKee found that these earlier awards would allow the Company to violate the contract as long as it maintained a violation long enough for the assignment to be deemed permanent. Accordingly he sustained the grievance and retained jurisdiction to resolve disputes about individual employees eligibility for the differential.

The Company sought to set aside the award, arguing that the award failed to draw its essence from the cba and that Arbitrator McKee had erred in failing to follow the earlier awards. The District Court rejected these claims (here), and the Eighth Circuit has now affirmed.

 With specific reference to the argument that the Arbitrator erred in failing to follow the earlier awards on the question of when an assignment was "temporary," the Court concluded:

Arbitrator McKee recognized ... that [his] interpretation was contrary to the interpretation of temporariness in the Heinz and Fowler awards. As we stated in Trailways  "we recognize that there may be situations where an arbitrator will refuse to defer to a prior award involving the same issue," including when "`(1) [t]he previous decision was clearly an instance of bad judgment; (2) the decision was made without the benefit of some important and relevant facts or considerations; or (3) new conditions have arisen questioning the reasonableness of the continued application of the decision.'" 807 F.3d at 1425 n.16 (quoting F. Elkouri & E. Elkouri, How Arbitration Works 428 (BNA 4th ed. 1985)).

Arbitrator McKee explained his declination of deference to a prior award involving a similar dispute by stating his disagreement with the prior decisions's interpretation of the contract's provisions. According to Arbitrator McKee, the Heinsz and Fowler Awards interpreted temporariness in a manner that gave the Company an incentive to violate the CBA as long as they violated it consistently for a given amount of time (or at least until the higher-classified job functions were performed long enough by lower-classified employees to be considered a permanent part of their job). Arbitrator McKee concluded that this interpretation was erroneous because it gave the Company the unilateral ability to render the temporariness requirement meaningless. In sum, Arbitrator McKee's decision to follow certain arbitration awards and not others, based upon those awards' factual and legal differences, does not authorize us to vacate his award under Trailways.


The Court acknowledged that on a second issue, i.e. what constituted an employee performing higher level work, the Arbitrator had not explained his decision not to follow an earlier award under the same contract. While finding that the Arbitrator "should have" explained his departure from the earlier award, his failure to do so did not compel a conclusion that his award should be set aside.

  Finally, the Court rejected the Company's contention that the doctrine of functus officio preluded the Arbitrator from retaining jurisdiction on the remedial issues, finding that while the award determined the Company's liability, it was not a final award triggering application of the doctrine.

Employer not obligated to extend grievance settlement to different unit

A Steelworkers Local represents a unit of production and maintenance employees at 3M's Cottage Grove, Minnesota facility. IUOE Local 70 represents a combined unit consisting of certain employees at Cottage Grove as well as employees at another 3M facility in St. Paul.  Until April of 2010 employees represented by both unions at Cottage Grove were covered by a common Attendance Control Program. After that date, 3M introduced a separate program for Local 70, though the terms were essentially the same.

In January of 2012, 3M and Local 70 settled a grievance concerning the program. Pursuant to the agreement, after a transition period employees represented by Local 70 would not be charged with an occurrence under the Attendance Control Program for sick leave absences.

In May of 2013, an employee represented by the Steelworkers was suspended for three days under the Attendance Control Program for a sick leave absence. The Steelworkers filed a grievance, asserting that it was "unfair and discriminatory" not to give grievant the same relief the employees represented by Local 70 had received. The Steelworkers claimed the circumstances were identical to those present in the grievance settled by 3M and Local 70. The parties were unable to resolve their dispute in the grievance procedure and the Union submitted the dispute to Arbitrator Thomas Gallagher for resolution.

Arbitrator Gallagher denied the grievance. He noted initially that at the time it negotiated it most recent cba the Steelworkers did not attempt to negotiate modification of the Attendance Control Plan to achieve the result it sought, even though it was aware of the IUOE settlement at that time. Noting that Steelworkers were now attempting to modify their agreement by means of a favorable award in the arbitration, the Arbitrator concluded "Contract amendment is not within the authority of a grievance arbitrator; it should occur only in the give and take of bargaining." The arbitrator also observed that 3M had presented evidence that the nature of the workforce represented by the two unions was different, and that the Company could tolerate greater absence among the IUOE employees. He concluded:

          That difference in the need for attendance is at least sufficient to show that the issue should not be resolved by an arbitrator's determination that relevant circumstances affecting both employee groups are identical.
          Rather, the interests of the parties should be resolved in bargaining. The bargaining process is better suited than arbitration to resolution of this kind of issue -- 1) because arguments of the Union in favor of uniform treatment of both employee groups may be able to lessen the Employer's concerns about maintaining production efficiency, 2) because arguments of the Employer may persuade the Union that good attendance will enhance production sufficiently to allow economic benefits, or 3) because the parties will find some other resolution in the give and take of bargaining. 

Arbitrator Gallagher's Award can be found here.