Labor Arbitration in the News

 Arbitrator Richard Beens has upheld a 20 day suspension imposed on a bus driver for talking on her cell phone while driving. Bus driver disciplined for using a cellphone. Arbitrator Beens’ award can be found here.

Portland Mayor Sam Adams has indicated that he will not comply with an arbitrator’s award ordering the reinstatement of Officer Ron Frashour. Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour. The Portland Police Association has accused the Mayor of breaching a commitment that the arbitration award would be “final and binding”. The Police Association’s press release can be found here.

“Arbitrator Douglas Hammond concluded the district should assign field trips to drivers based on seniority without considering overtime costs” reports AZcentral.com. Paradise Valley bus drivers prevail in district dispute. The arbitrator concluded that the district violated the contract when it changed the way it assigned field trips to minimize overtime.

The Tahlequah Daily Press reports that an arbitrator has found that the City of Tahlequah, OK violated its cba with FOP Lodge 201 by applying a separate seniority list to grant funded officers. Arbitrator: City broke union pact. Arbitrator T. Zane Reeves concluded that an officer who transferred from a grant funded position to a position in the classified rank was entitled to keep his original seniority date.

Adjunct Law Prof Blog reports on a pending arbitration of a teacher claiming she was terminated for refusing to provide her employer with her Facebook password. Reportedly Teacher’s aide challenges Michigan district in arbitration claiming she was suspended for refusing to provide online passwords

The Society of Professional Engineers in Aerospace is preparing a lawsuit claiming that Spirit AeroSystems is refusing to honor the contractual grievance process. Spirit union to seek arbitration

The termination of an Albany NY police officer has been approved by arbitrator Sheila Cole. The officer had been accused of a number of off duty incidents including two arrests for domestic violence. Cop fired under ruling

A number of arbitrators who hear disciplinary cases for teachers and administrators are declining to accept new cases because of claimed slow pay by the State of New York. Arbitrators balk at slow pay from state

Arbitrator may review denial of unescorted access to Nuclear Facilities

The Seventh Circuit has reversed a district court’s decision concerning the ability of an arbitrator to review and remedy the wrongful denial of unescorted access to nuclear facilities.Exelon Generation Co. v. Local 15, IBEW. The Circuit rejected Exelon’s argument that the Nuclear Regulatory Commission’s regulations limit the ability to review the denial of unescorted access to the licensee. The court noted that there has been a lengthy history of NRC approval of arbitral review of denial of access decisions and nothing in either the revised regulations or the comments in the regulatory rulemaking record indicated an intent to change that policy


Update: The Seventh Circuit  has rejected a request for rehearing en banc, with Judge Posner writing a separate opinion calling for congressional or NRC action to address the issue of arbitrator's review of unescorted access questions.  The Court's decision can be found here.

Labor Arbitration in the News

An arbitrator has concluded that the Portland Public Schools unfairly increased the workload for remaining teachers following a layoff. New Ruling: PPS Teachers are Overtaxed; Decision Could Cost School District $1.5 Million. The award of Arbitrator William Reeves can be found here.

The Town of Stonington, Ct. spent close to $ 4,000. defending against a claim for $116. in overtime compensation. Arbitrator rules Town must pay worker $58.02. The underlying grievance involved a claim that the Town breached a commitment to equalize overtime. The Town noted that the case raised a policy issue that was likely to recur.

The Association of Professional Police Officers has filed a complaint asserting that the City of Aurora has failed to comply with an arbitrator’s decision on wages and health benefits. Aurora police union claims city not following contract

The New York Times discusses the careers of teachers reinstated as a result of an arbitrator's award.  Found to have misbehaved with students, but still teaching.

Three Police related Awards

Arbitrators have issued awards in three cases, each involving police department bargaining units.

Arbitrator Jane Wilkinson has ordered the City of Portland to reinstate a police officer terminated for his involvement in the shooting of an individual who turned out to be unarmed.  OregonLive summarized the decision; Arbitrator orders Portland reinstate Ronald Frashour as an officer, with lost wages, and links to the award.  While recognizing it as a “tragic case", the arbitrator concluded that the officer did not act unreasonably and that given the circumstances and the need for a quick decision “a reasonable police officer could conclude that had Mr. Campbell pulled a gun, he would have fired it- possibly at others, or perhaps at himself. The case law points to the conclusion that this is a sufficient basis for finding that there was an objectively reasonable basis for believing that Mr. Campbell posed an immediate risk of serious injury or death to others”  As a result, the arbitrator concluded that the City lacked  just cause for the termination. The decision has prompted protests and the Mayor has indicated an intent to appeal the award.  Arbitrator's ruling for Portland police officer's reinstatement sparks protest   Update: Arbitrator Janet Gaunt has issued an award,discussed here, addressing the conduct of three other officers involved in this incident.

In another police related case, Arbitrator Ira Jaffe has rejected the efforts of the Baltimore County Police Department to remove police lieutenants from the bargaining unit.  County Loses Arbitration Ruling to Police Union  (contains a link to the award). In the context of an interest arbitration proceeding, the arbitrator found that the County had not bargained in good faith by raising the issue of unit definition in this proceeding.

The Quad City Times reports that Arbitrator James Cox has rejected a grievance filed by the Davenport Union of Professional Police seeking back pay for 25 police sergeants who claimed that a demoted Captain was paid at his Captain’s salary after his demotion to Sergeant. City wins grievance, won’t have to pay $399K. The article also contains a link to the arbitrator’s award. Arbitrator Cox concluded “Payment of one employee above scale is not remedied by paying all employees in the same classification the rate of the overpayment”

Arbitrator rejects Union's claim that past practice modified contract

Arbitrator Thomas Gallagher has issued an Award in a dispute between the City of Chisolm, Minn and AFCSME, Council 65, rejecting the Union’s claim that the City breached its agreement by allegedly ignoring a past practice concerning overtime. While the agreement contained a fairly broad management’s rights clause giving the City broad authority to “schedule work”, the Union claimed that the parties had established a practice by which employees called in to work early had the option to either leave after eight hours or continue to work their full shift, earning overtime for hours in excess of eight.

Both sides introduced evidence concerning prior incidents and grievance settlement agreements, but Arbitrator Gallagher found the evidence insufficient to establish that the past practice rose to the level of an amendment to the contract, modifying the management rights clause.

The arbitrator noted

In rare cases, arbitrators may rule that the parties to a contract have shown by their conduct—i.e., by practice—an intention to amend contract language that is not ambiguous. In such a case, however arbitrators require a showing, beyond mere practice, that the parties have a mutual intent to amend clear, unambiguous language. Arbitrators require not only a showing of longstanding and consistent conduct, but, in addition, some indication that both parties have understood that the practice conforms to an intended amendment of that clear language.

Finding nothing in the evidence showing the Employer decided to accept a limitation on its broad authority to schedule work, the arbitrator denied the grievance.

Labor Arbitration in the News

Courthouse News Service reports that Unite Here Local 25 survived a Motion to Dismiss its action seeking an injuction and arbitration over its claim that former owners of the Madison Hotel breached its successorship clause in its sale of the hotel. The court determined that the sale of the hotel did not moot the Union’s claim. Union Fight at Madison Hotel Won't Check Out

Arbitrator Jack Tillem has upheld a grievance claiming that The Port Authority of New York and New Jersey breached its contract with IBEW Local 3 when it ceased providing free tolls to retirees. Arbitrator Tillem concluded that the last contract provided the benefit to the retirees for “life”. Port Authority ordered to reinstate toll-free passes for retirees

Arbitrator Claude Dawson Ames has issued a decision allowing the Clark County, Arizona school board to reduce teacher’s salary to pay for increased pension contributions. Arbitrator sides with School District in $10 million pay dispute

New employees of Westport , CT Public Works department will be subject to a defined contribution pension plan rather than the current plan pursuant to an arbitrator’s recent decision. Arbitration Decision Issued in Long Running Westport Public Works Contract Negotiation. A somewhat similar decision affects certain Philadelphia employees. Arbitrator rules for city's hybrid pension plan, created to hold down costs

Award set aside because arbitrator ignored stipulated issue

A California Court of Appeals has refused to enforce an arbitration award granting back pay for “out of class” work to employees of the Victim’s Compensation and Government Claims Board (VCGCB). Department of Personnel Administration v. SEIU Local 1000. SEIU Local 100 filed a grievance on behalf of the VCGCB employees, claiming they were working “out of class” and were entitled to differential pay. While the employees were subsequently reclassified to the higher classification, the Union went to arbitration on the claim for back pay.

The cba addressed claims both that employees were working out of their classification and claims that they had been misallocated to the wrong classification, but a grievance could claim only one of these issues.

At the arbitration the parties stipulated the issue to be whether the subsequently reclassified employees “work[ed] out of class…”. During the course of the arbitration, however, the Union asserted that the issue was one of misallocation. The arbitrator noted that the original grievance sought reclassification and that “[o]n its face, the stipulated issue may reasonably be subject to dispute” He concluded that “considered in context” the issue presented was one of reclassification. On the merits the arbitrator found that the employees had not been working out of class as that term was defined in the contract, but that the employees had been performing the work of the higher classification and that reallocation was appropriate. He awarded back pay for the period prior to the reclassification.

The employer sought to set aside the award, contending that the arbitrator exceeded his authority by deciding an issue not before him (i.e. the reclassification issue) and awarding back pay when the contract permitted back pay only in working out of class cases. The trial court agreed, and vacated the award. The Court of Appeals affirmed the lower court’s decision, agreeing that the arbitrator exceeded his powers by deciding an issue not before him.

Like the lower court the Court of Appeals found no ambiguity in the stipulated issue. In affirming the decision to vacate the court observed:

The parties agreed to arbitrate the issue of whether the [employees] had been working out of class within the meaning of [the agreement]. The arbitrator based his ruling on whether the [employees] had been reallocated. In doing so, the arbitrator exceeded his delegated powers. The trial court properly vacated the arbitrator’s award on that basis.