California court rejects effort to apply Pyett, denies employer’s request to compel arbitration

A California court has rejected an effort by American Medical Response to have a wage and hour suit submitted to arbitration rather than proceeding in court. Bartoni v. American Medical Response West. The suit involved a claim by current and former employees of AMR that it had violated state law on meal periods, rest breaks and overtime. AMR appealed from an order denying its motion to compel arbitration pursuant to the arbitration provisions of the collective bargaining agreements covering plaintiffs during the relevant periods. The lower court had determined that the agreements did not contain a “clear and unmistakable” waiver of plaintiffs’ right to a judicial forum for their statutory claims.

The grievance language provided “In the event any grievance arises concerning the interpretation or application of any of the terms of this Agreement, and/or any dispute concerning wages, benefits and working conditions, such matters shall be adjusted according to the procedures and conditions set forth below.” According to the court, none of the agreements contained provisions requiring defendant to comply with the California Labor Code, applicable wage orders, or state or federal law in general.

Affirming the lower court, the Court of Appeal observed that the Supreme Court’s decision in 14 Penn Plaza LLC v. Pyett  established that provisions in a cba that “clearly and unmistakably” require union members to arbitrate statutory claims are enforceable as a matter of federal law. Reviewing case law applying the clear and unmistakable standard, including the Supreme Court’s earlier decision in Wright v. Universal Maritime Service Corp., however, the court concluded that the general language of the contracts in issue here was insufficient to establish such a waiver. The Court noted:

As observed by the Fourth Circuit, "[w]hile it is . . . possible to meet the clear and unmistakable waiver standard of [Wright], it is not easy." (Eastern Associated Coal Corp. v. Massey, supra, 373 F.3d at p. 534.) Where two plausible readings of the CBA are possible, we do not decide which interpretation is the correct one. "The fact that there are at least two plausible and competing interpretations . . . is enough to demonstrate that the [provision] fails to provide a clear and unmistakable waiver. […]" (Id. at p. 536, citing Carson, supra, 175 F.3d at p. 332 ["[w]e hold that clear and unmistakable does not mean general language that under ordinary principles of contract interpretation might very well be interpreted to require arbitration"].) A union waiver of employee statutory rights in a CBA can "be effected only by the most `explicit' language, without any resort to inference." (Marcario v. County of Orange (2007) 155 Cal.App.4th 397, 405.) This principle appears fully applicable here.

Accordingly the court concluded that the lower court did not err in denying defendant’s motion to compel arbitration.

Labor Arbitration in the News

Teacher transfer process violated contract

Arbitrator Jacquelin Drucker has issued a decision in a dispute between the Buffalo Board of Education and the Buffalo Teachers Federation. Upholding the Union’s grievance, Arbitrator Drucker concluded that the planned transfer of 54 teachers as part of a turnaround plan violated the procedures set forth in the cba. The Arbitrator rejected the Union’s claim that involuntary transfers were limited to individualized situations and that a past practice demonstrated that the Board was without authority to transfer teachers in non individualized situations. The Arbitrator noted “Even if that has been the longstanding history, however, future use of the management right to transfer is not barred simply because it was not exercised for many years. The Union in this case essentially is arguing that if an employer has a managerial right but has not used it, it may forfeit that managerial right. Past practice, however, does not work in that manner.” Nevertheless the Arbitrator found that the Board had violated the contract in developing and implementing the screening process called for in the contract. The violation included failing to solicit teacher preferences and having screening performed by unqualified individuals. buffalonews: Ruling: Teacher move violates union contract. Arbitrator Drucker’s award can be found here.

Union can proceed with arbitration despite death of grievant

The Eight Circuit has reversed a lower court’s decision and has held that the death of the grievant did not preclude the Union from proceeding to arbitration on a grievance challenging his termination. Sheet Metal Workers Local 2 v. Seligan Containers Manufacturing Corp. The court found no indication in the contract that the arbitration provision ceased to apply upon the death of the grievant, and rejected the employer’s reliance on the Supreme Court’s decision in Allied Chemical& Alkali Workers of America v. Pittsburgh Plate Glass Co. The court distinguished that case, finding “Unlike the interests of retirees the Supreme Court considered in Pittsburgh Plate Glass , the interests of employees whose grievances arise in the course of their employment, but who die before those grievances are resolved, do not diverge from the interests of current employees.”

Union can arbitrate claim that retirees are eligible for prescription co-payments

The firm of Weissman and Mintz has a report on a recent decision of the N.J. Appellate Division. Appellate Court Affirms Unions’ Right to Arbitrate on Behalf of Retired Members Using reasoning similar to that of the Eight Circuit above, the Appellate Division has affirmed the determination of the state’s Public Employment Relations Commission that the FOP could arbitrate its claim that retired employees were entitled to prescription co-payments in effect at the time they retired. The court noted “The Township's argument that it need not negotiate with the FOP on the issue of co-payments for retired police officers is beside the point as far as this appeal is concerned. The grievance seeks to enforce what the FOP contends are the Township's obligations under prior and existing CBAs. It does not seek to compel the Township to bargain on the issue for future contracts.” Township of Voorhees v. Voorhees Police Officers Association, et al.

Fire Department not obligated to maintain staffing level

According to a report in Indeonline.com, the Massillon, Ohio Fire Department did not violate its agreement by allowing the fire department staffing to fall below 42. Arbitrator Jeffrey Belkin found that the firefighter’s union had failed to establish that an agreement entered into in 1984 guaranteed a minimum staffing level “forever.” He noted that the Union had subsequently negotiated staffing levels, and if they intended that staffing would not fall below 42 they would have said so in their agreements. Arbitrator rules against laid off Massillon firefighters

Reinstatement of employee dismissed for sexual harassment deemed contrary to public policy

The Pennsylvania Supreme Court has found an arbitration award reinstating an employee dismissed after being found to have engaged in sexual harassment to be contrary to public policy. Phila. Housing Authority v. AFSCME. Grievant was employed as a warehouseman by the Housing Authority. He was accused of harassing a co-worker by inappropriate touching and sexual comments. After the co-worker learned that grievant was going to be assigned to a desk next to her she advised her supervisor of grievant’s conduct and stated she did not want to work so close to him. When grievant learned of the report he and the coworker engaged in a verbal altercation. Grievant’s supervisor took grievant outside to discuss his behavior and told grievant to stop yelling at the coworker and not to touch her. Shortly thereafter, the altercation was reported to the PHA EEO Officer and an investigation was commenced. After the investigation grievant’s employment was terminated for sexual harassment.

The arbitrator determined that grievant’s conduct was “unacceptable”but that he had not engaged in further inappropriate sexual harassment after the “verbal warning” from his supervisor. As a result he concluded that the PHA did not have just cause to terminate his employment and ordered his reinstatement with back pay.

While noting the traditionally narrow review of arbitration awards, the Pennsylvania Supreme Court found this award contrary to the strong public policy against sexual harassment. It concluded:

Although we do not hold that termination was required under the circumstances here, we likewise reject the arbitrator’s and appellant’s counter-assertion that a public employer can be precluded from taking such decisive action against an employee following its investigation. A public employer should be empowered to implement a zero tolerance policy when appalling, assaultive, repeated sexual harassment is at issue. The arbitration award to the contrary in this case affirmatively encourages -- indeed it rewards -- sexual harassment in the public workplace.

…

To allow an arbitration award which finds that an employee engaged in “extraordinarily perverse” physical sexual harassment of a coworker, yet then simply dismisses the conduct as unworthy of an employer response beyond initial “counseling,”and reinstatement with back pay, would eviscerate the ability of employers to enforce dominant public policy.

…

In this case, a holding that the arbitrator’s award did not violate a well-defined, explicit, and dominant public policy would construe the public policy exception so narrowly that it would be, as a practical matter, completely negated.

 

 

The Court also distinguished cases arising in the private sector, concluding that in the case of public employees it would apply a less restrictive reading of the public policy exception.

 

Accordingly the Court vacated the arbitrator’s award. A concurring opinion, while finding the award “reflects such an alarming degree of disharmony as to justify the extremely rare recourse of judicial intervention”, would have remanded the case to the arbitrator for reconsideration.

Labor Arbitration in the News

School District not entitled to reimbursement of Union officials salaries

Arbitrator Gary Axon has rejected an effort by the Douglas County Colorado School District seeking reimbursement for salaries paid to several union officials. The contracts in issue provided that the cost of compensation and benefits for the Union president would be paid proportionally by the District and the Union “according to an agreed upon percentage of 50/50”, and other representatives were also subject to a negotiated proportional payment. The District maintained that it became concerned that it was not able to demonstrate appropriate accountability for the costs and asserted that the Union president orally agreed to assume payment of 100% of the costs rather than have the affected individuals report to a District building. Arbitrator Axon concluded that the contract language was clear and unambiguous regarding the sharing of compensation costs, and that the claimed oral agreement was never reduced to writing and submitted through the contractually required approval process.  Arbitrator Axon’s award is available here.

Illinois Inmate transfer on hold pending arbitration

AFSCME Council 31 has won a temporary stay of transfers of prisoners in facilities targeted for closure while it arbitrates it grievances relating to the planned closure. Illinois inmate transfers halted; union and state to arbitrate closures.

Employees improperly laid off, backpay awarded to employees with increased work loads

According to a report in the Boston Globe, Arbitrator Michael Stutz has issued an award finding the Boston Public Schools violated its contract with the Boston Teachers Union when it cut the number of special education clerks in half, resulting in special education coordinators working hours of unpaid overtime each week. While finding that ordering the school to reinstate the clerks was beyond his authority, the Arbitrator found the coordinators were entitled to split half of the combined salaries of the clerks who were laid off. Boston special education cuts found to be wrongful.

Layoff Protection does not follow employee who transfers to different bargaining unit

Arbitrator Stephen Goldberg has issued an award in a dispute between the U.S. Postal Service and the American Postal Workers Union. The dispute involved the question of whether an employee who was represented by the APWU but who transferred to a bargaining unit covered by a different union continued to be covered by the Layoff Protection MOU of the APWU Agreement. After disposing of some procedural objections to the arbitrability of the dispute, Arbitrator Goldberg concluded that coverage did not transfer with the employee.

The MOU in issue provided protection from layoff for the duration of the cba for certain employees not covered by a more extensive contractual protection against layoff. The APWU asserted that an employee covered by the MOU who transferred to a different bargaining unit continued to be covered by the Layoff Protection MOU. In rejecting this position the Arbitrator observed:

It is a fundamental principle of American labor law, too well-accepted to require citation,

that a union which has been certified as the exclusive bargaining representative of employees in

a particular bargaining unit bargains on behalf of those employees only, and is without authority

to enter into agreements on behalf of employees in other bargaining units whom it does not

represent.

It is equally clear that, as a general rule, benefits that have been negotiated by a union on

behalf of employees in a bargaining unit represented by that union apply to those employees only

as long as they remain in that bargaining unit. An employee who leaves one bargaining unit to

join another does not generally carry with him/her contractual rights that were negotiated on

his/her behalf in the former unit, but is rather covered by the contract in the unit which he/she

joins, and is entitled to only the benefits contained in the latter contract.

Arbitrator Goldberg noted that while an employer and union could agree to rights that would continue in effect after the employee left the bargaining unit, such an agreement would create practical problems making enforcement difficult or impossible if the employee transferred to a different bargaining unit. In such a situation an employer could be faced with the dilemma of either violating the transferring employee’s rights under the original contract or being forced to engage in unproductive conduct in order to comply with its commitments under both contracts. Because of this, the Arbitrator would require “clear supporting evidence” of such an agreement

In this case, the Arbitrator concluded that the APWU’s position “would present such practical problems of contract administration and personnel management for USPS that it should not be adopted in the absence of persuasive evidence that USPS and APWU intended its application in those circumstances. Such evidence was found to be lacking.”

Accordingly he denied the grievance.

APWU links to the Award here.

Labor Arbitration in the News

A Niles, Ill. police officer will receive in excess of $100,000. in settlement of a dispute over his termination. The officer had been terminated after being accused of sexually assaulting a waitress in a bar while off duty. In April of 2012 an arbitrator ordered the employee reinstated. Arbitrator Orders Suspended Niles Officer Reinstated. While the City initially threatened to seek to overturn the award, the parties reached an agreement to resolve the matter by reducing the back pay owed by nine months. Tap Reserves To Pay For Niles Officer's Return.

The City of Warwick, Rhode Island has been ordered to reinstate a DPW worker who had been terminated for alleged theft from the City. According to a report on 630WPRO.com, the arbitrator concluded that the employee had been improperly subjected to double jeopardy after the Mayor overturned an earlier decision suspending the employee and ordering his termination. DPW worker fired for stealing reinstated, Mayor reacts.

New Jersey has modified its teacher tenure law. One element of the change includes a process for arbitrators to make a decision when a tenure charge against a teacher is contested. The change is discussed in a report in NJSpotlight Tenure Reform Law: The Debates Ahead. According to the report, 25 arbitrators, all of whom must be members of the National Academy of Arbitrators, will be selected by the stakeholders (three, by the AFT; nine by the New Jersey School Boards Association and five by the New Jersey Principals and Supervisors Association).

A New Mexico court had enforced two arbitration awards finding that the state violated its union contracts by failing to grant employees their full contractually called for increases. NM may owe $20M in back pay to state workers. The state legislature had appropriated money for a lesser increase for both union and non-union employees. The court’s opinion can be found here.

Award reinstating teacher accused of improper contact with students set aside as violative of public policy

The Pennsylvania Commonwealth Court has affirmed a lower court decision setting aside an arbitration award reinstating a teacher accused of violating school district policies concerning sexual harassment of students.  Bethel Park School District v. Bethel Park Federation of Teachers. Grievant had been accused of engaging in unwelcome contact with seventh grade female students, including holding their hands, and/or rubbing their backs and legs when he would assist them. The School District placed Grievant on an improvement plan prohibiting him from contacting students outside structured classroom settings. Grievant allegedly defied this prohibition by continuing to meet with students during lunch and by continuing to have physical contact with them. Grievant was notified by the District of its intention to discharge him from employment. He was advised of his right to a hearing before the Board of Directors or, in the alternative, his right to challenge the dismissal through the grievance/arbitration procedures. Grievant elected to file a grievance, and the Arbitrator sustained the grievance in part. The Arbitrator concluded that “persuasive evidence establishes that the Grievant is guilty of serious misconduct which would ordinarily warrant discharge… [and] so long as he persisted in his behavior, the Grievant was unfit to teach.” Nevertheless, he found that the District had violated significant due process rights in conducting its investigation and ordered the Grievant's reinstatement albeit without back pay. The District sought to set aside the award, and the lower court vacated the award. The Federation appealed.

 The appellate court found that the Arbitrator improperly relied on the due process procedure outlined in the District’s Unlawful Harassment Policy. The Court noted that the policy was not part of the CBA and “[a]s such, the Arbitrator clearly went outside the CBA in making his determination.” As a result, according to the Court, the Arbitrator’s award was not rationally derived from the CBA.

Separately, however, the Court also concluded that the award was properly vacated “on the basis that it violates the well-defined and established public policy of protecting students from sexual harassment during school hours, on school property.” While noting that the Arbitrator had not made an express ruling finding Grievant guilty of sexual harassment, the court determined “his findings leave no doubt that Grievant, an adult male in power over seventh grade female students, persisted in unwelcome inappropriate touching during the performance of academic work which made the seventh grade female students uncomfortable.” Because the Court concluded that the award violated public policy “as pronounced in Title IX of the Civil Rights Act, the Federal Civil Rights Act, the Pennsylvania Human Relations Act, as well as the District’s zero-tolerance sexual harassment policy” it affirmed the lower court’s decision vacating the award.

According to a report in the Post-Gazette.com the Federation is reviewing whether to further appeal. Union weighs appeal of teacher's firing in Bethel Park. The report also identifies the arbitrator as Irwin Dean.