Denial of unescorted access to nuclear facility found to be an arbitrable dispute

Grievant, an employee of MIT and a member of the bargaining unit represented by the Research, Development and Technical Employees Union, received an oral warning for allegedly removing mail from another employees mailbox without authorization. In addition, her authorization for unescorted access to the facility's nuclear reactor area was revoked. While she continued to perform duties commensurate with her job classification, she was assigned only to areas not requiring unescorted access. The Union pursued a grievance on her behalf, challenging both the warning and the revocation of her authorization for unescorted access. Unable to resolve the dispute in the grievance procedure, the Union sought to arbitrate both issues.

 MIT sought a declaratory judgment that the denial of unescorted access was not an arbitrable dispute, and asked the court to enjoin the union from pursuing the case to arbitration. The Massachusetts District Court did not immediately decide the issue; instead it remanded  the case to the arbitrator for resolution, including resolution of the arbitrability question and stayed the case pending the decision of the arbitrator.

Before the arbitrator, MIT conceded that the question of whether there was just cause for the oral warning, and whether the grievant was "transferred" within the meaning of the contract and if so whether it was for just cause were appropriate subjects for arbitration. It maintained, however, that the initial decision to revoke grievant's right of unescorted access, and the subsequent decision not to reinstate it, were not arbitrable issues. The arbitrator rejected MIT's position, finding the dispute arbitrable, and MIT then returned to court and renewed its argument on arbitrability.

The court summarized the arbitrator's award:

The Arbitrator concluded that while the language of the arbitration clause only permits arbitration of grievances "regarding the interpretation or application of [the] Agreement," and the fact that the Agreement is silent on the unescorted access issue seems to counsel against arbitrability of this issue in view of the arbitration clause's language, ... the revocation of unescorted access under the circumstances of this case amounted to discipline and thus implicated Article XX of the Agreement, .... As additional ground for his reasoning, the Arbitrator considered the Order's language and opined that the denial of unescorted access "must be for specific and valid and reliable reason(s)," and the determination of whether [grievant] showed a "pattern of trustworthy and reliable behavior" necessarily relied on "an investigation of the events leading up to her removal of access .. . which [could] only take place if this portion of the grievance" was arbitrable. ...Lastly, the Arbitrator reasoned that doubts as to questions of arbitrability should be resolved in favor of arbitration and as the Agreement "contains no provision which prohibits the grievance regarding the denial of access to proceed to arbitration," the issue must be substantively arbitrable.

Noting that the question of substantive arbitrability was a matter for a court to decide, the District Court first concluded that the presumption of arbitrability applied here in light of what it considered to be a broad arbitration clause. It noted that the"absence of a specific provision does not necessarily equate to an intentional exclusion" of any particular dispute from arbitration, and in the absence of evidence of intentional exclusion of the issue from arbitration the dispute was properly before the arbitrator.

The court then turned to MIT's contention that decisions concerning the denial of unescorted access to nuclear facilities falls outside the scope of arbitration for reasons of public policy. While noting that there was some support for MIT's position, it concluded that it agreed with the decision of the Seventh Circuit (discussed here)  that the applicable regulations did not prohibit an arbitrator from deciding this issue. It noted:

 While it is arguably in the public interest for a publicly accountable judiciary to review site access disputes for our nuclear facilities, it is not in fact the Commission's or Congress's policy or intent to exclude access revocation disputes from private (and largely secret) arbitration. Thus, MIT's policy argument must fail.

The courts decision in Massachusetts Institute of Technology v. Research, Development and Technical Employees Union can be found here.


The Nuclear Regulatory Commission is currently considering a petition to amend its regulations to prohibit "third parties (including arbitrators)" from restoring or granting unescorted access. Ineligible Access to Nuke Plants Questioned.

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.

"Brutal" hazing didn't provide just cause for termination when others involved weren't disciplined

The State of Iowa terminated the employment of a State Trooper following receipt of a report of hazing during police academy basic training class four years earlier.

Grievant was part of an Academy basic training class between June and October of 2008. As squad leader, grievant was assigned to assist another recruit who was having difficulties with the training. Grievant did not have a good relationship with the other recruit and believed he was unsuited for the training. He also believed the Academy would not dismiss the other recruit because his father was a trooper. Grievant engaged in what the other officer described as a pattern of threats and harassment. Grievant admitted he was attempting to induce the officer to quit. Grievant also engaged in "bonding' the other recruit. This involved handcuffing him to his bunk, pulling down his pants and rubbing Bond powder onto his "butt cheeks." While he did this, grievant called over other recruits to observe. It was undisputed that grievant was advised to stop verbally abusing the other recruit and that he did so, but there was conflicting testimony about whether the Academy leaders were aware of the physical interaction. Both individuals ultimately graduated.

 Approximately four years later, grievant met with a captain of the state police to report what had taken place during basic training. The captain initiated an investigation of what he described as a "sexual assault." As a result of that investigation, the employment of grievant and a second student who was deemed to have participated in the "bonding" was terminated. Other individuals who had observed the incident were questioned but not disciplined. The union pursued the dispute to arbitration, arguing that grievant had  been disciplined  at the time of the incident and that further discipline constituted double jeopardy. They also argued that grievant had been "set up" by Academy staff to cause the recruit to resign. The union claimed that, in any case, the discharge was not for just cause since the investigation took too long, the incident in issue was isolated, and that there was no showing of any impact of the incident on grievant's ability to perform his job.

Arbitrator Harvey Nathan rejected most of these contentions. He found no double jeopardy, noting that the warning grievant received while at the Academy "was directed to harassment generally, and specifically to the audacious verbal abuse...." He also found no basis to conclude that the Academy staff bore any responsibility for grievant's "loss of judgment" on the day in issue. However hid did conclude that if  the Academy had  more closely monitored activities in the barracks the  incident could potentially have been avoided.  Moreover, had the incident been reported promptly corrective action could have been taken immediately. Given the way the issue came to light, however, "there was little that could be done other than terminate the grievant. It was not the length of time of the investigation that prejudiced [grievant]. It was the Academy's failure to be on top of misbehavior in the barracks."

 While noting "there can be no minimizing of the brutal attack on a weak and innocent bunkmate," the Arbitrator ordered the Department to reinstate grievant with back pay from the date of the award.  Arbitrator Nathan concluded:

     While the grievant was the instigator of the assault, it would not have happened as it did if other recruits did not cooperate. Had the staff learned of what happened, either from [victim] or others, an investigation could have been opened as it was almost four years later. While obviously not as severe as forcibly stripping [victim] and pouring a substance on a private part of his body, standing there and cheering on the perpetrators was aiding and abetting the assault. There were many more people involved in this incident than just [grievant]. Someone there should questioned [sic] what was being done. The failure to intervene warranted discipline of several other recruits. Surely, the Academy needs to teach recruits that Troopers do not simply turn away when they see a colleague do something intolerable, let alone join forces with the miscreant after the hazing began.
     The defect in the Department's case was its failure to explore the incident after the meeting with [grievant] with the thoroughness that occurred in 2012. And with regard to that investigation, the Department should have disciplined all of the recruits, now Troopers, who directly or indirectly, were involved in the bonding incident. While this would have been difficult, once it decided to terminate [grievant] it was a violation of the "just cause" principle to ignore the several others who were involved.

Arbitrator Nathan's award (13-GA-0208 - State of Iowa (Dept. of Public Safety 10/5/2013) can be found here.

Note: According to a report in the Des Moines Register, here, the termination of the second student allegedly involved in the incident has been overturned by Arbitrator Clair Brooks.

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.

Use of confidential patient information in grievance process

Allina Hospital, d/b/a/ St Francis Regional Medical Center, terminated the employment of grievant for the "intentional use and disclosure of patient records containing confidential and protected health information without a permissible business reason...." While processing certain patient records, grievant observed initials on the documents suggesting to her that non-bargaining unit employees might have performed bargaining unit work.  Grievant redacted, at least in part, patient identifying information, made copies of the documents and turned them over to a Union steward. There was no dispute that grievant's purpose was the pursuit of a grievance, but the hospital viewed the nature of that purpose as "neither here nor there." It terminated grievant's employment and the Union (SEIU Healthcare Minnesota) pursued the matter to arbitration.

The hospital presented evidence that it had consistently terminated employees who had improperly accessed patient medical information without a valid business purpose. This included the termination of an employee who accessed her father's medical records, the termination of 32 employees who accessed the medical records of a high profile patient, and the termination of an employee with  more than 30 years of exemplary service. Arbitrators had upheld the hospital's actions in all of these cases. Arbitrator A. Ray McCoy noted, however, that none of those cases addressed the situation raised in this dispute, i.e. "the fact that the conduct giving rise to the employer's discipline of the Grievant was also protected union activity."

Arbitrator McCoy noted that while the hospital presented evidence that it made a thorough review of the facts of this case, and a careful analysis of the conduct and its policies, the analysis proceeded from the erroneous assumption that, according to a hospital witness, "It was a well known fact that union activity was not a legitimate business reason." The hospital also relied on its conclusion that while its policy allowed it to use patient information in the processing of a grievance, the policy made no provision for the Union's use of that information.

Rejecting the position of the hospital, Arbitrator McCoy sustained the grievance and ordered the hospital to reinstate the grievant and make her whole for her losses. He concluded:

          the investigative and deliberative process[es] were fatally flawed and did not comply with the just cause standard called for in the Agreement. Given the specific facts regarding Grievant's conduct in this case, a proper balancing of the competing concerns, policies and rights should have led the employer to conclude that the Grievant had a legitimate business purpose for sharing the four files with her Union steward. A fair investigatory and deliberative process would have at the very least produced a concrete rationale for finding that such a balancing would still have led to the Grievant's termination. Here the Employer[] fails the just cause test because it specifically excluded a most critical fact even before undertaking its' investigation that both characterized and gave meaning to the Grievant's actions. It is only by stripping the very real fact that the Grievant's sole purpose was to pursue a right guaranteed her by the Agreement that one can conclude the Employer behaved properly. Doing so, however, would be in direct contravention of the Parties' Agreement.


Arbitrator McCoy's award can be found here.

Supervisors doing bargaining unit work- Court overturns arbitrator's award

An earlier post,  Plain meaning, conflicting contract terms and supervisors performing bargaining unit work, discussed an award of Arbitrator Linda Klibanow finding the LA Times in violation of its cba. Arbitrator Klibanow concluded that the relevant contract language was ambiguous, and relied, in part, on bargaining history to reach her conclusion that the paper could only have supervisors perform bargaining unit work in "emergency ... or ... non-routine but limited situations...."

The newspaper sought to set aside the award, on the basis that the Arbitrator had exceeded her authority in issuing the award and effectively rewrote the parties' agreement. The District Court has agreed with the Times and has vacated the award.

The dispute in large part turns on the language of the contract's management rights provision. Article II, Section 2.2 of the agreement provides:

Any work that can be assigned to bargaining unit employees may also be assigned or reassigned at any time to be performed by other employees, supervisors or managers or persons outside the bargaining unit at the sole discretion of the Employer. The assignment of work or functions to bargaining unit employees shall not be construed as conferring exclusive jurisdiction over same to either the Union or members of the bargaining unit. The Employer shall not use Section 2.2 for the sole purpose of replacing bargaining unit employees and Employer shall not use Section 2.2 for the sole purpose of avoiding the 'Recall' language under Section 11.6 of this contract.

As noted in the earlier post, Arbitrator Klibanow rejected the paper's position that the language was clear and unambiguous. The Arbitrator found an inconsistency between the employer's "sole discretion" to assign work and the contractual limitations on that discretion. The District Court has rejected that conclusion. Recognizing the limited scope of review of an arbitrator's award, and the arbitrator's authority to interpret the parties cba, the Court nevertheless concluded that, while postured as an interpretation, the award effectively rewrote the parties' agreement:

The Court begins by noting that the Arbitrator's "interpretation" conflicts with the plain language of the CBA. On its face, Section 2.2 provides that Plaintiff LA Times has "sole discretion" to assign supervisors to perform union work. Two provisions appear to narrow that discretion only slightly; Plaintiff LA Times may not assign supervisors for the "sole purpose" of replacing bargaining unit employees, nor may it do so for the "sole purpose" of avoiding recall. The Arbitrator read Section 2.2's apparent broad grant of discretion to Plaintiff LA Times to  prohibit Plaintiff LA Times from exercising any discretion to assign supervisors to perform union work. Instead, the Arbitrator found, Section 2.2 permitted the assignment of supervisors only in a very narrow set of specific circumstances. These circumstances have no basis in the text of the CBA.

The court concluded that this case represented one of those "rare instances" where an arbitrator's interpretation was so implausible that it could not be said to draw its essence from the cba and that by effectively adding "extensive restrictions" on the Times' discretion to assign work the arbitrator improperly rewrote or added to the parties' agreement.
 
The Union's website links to the court's decision in Los Angeles Times Communications v. Graphic Communications Conference Int'l Brotherhood of Teamsters here.

Teacher discipline, "Rubber Rooms" and judicial review

The New York City Board of Education has filed suit against the United Federation of Teachers, alleging that the Union has failed to implement an agreement to increase the number of arbitrators available to hear disputes involving claims of teacher misconduct or incompetence. A copy of the complaint can be found here. The issue arises from an April 2010 agreement between the Board and the UFT designed to expedite the process for arbitral review of such cases and eliminate the infamous "rubber rooms" to which teachers awaiting hearings were assigned. The Board claims that the Union has refused to agree to sufficient new arbitrators and has refused to follow the alternate process for selection of arbitrators when no agreement can be reached.

Two recent cases address issues of discipline for teacher conduct and competence and the scope of judicial review of those decisions.

 The Appellate Division of the New York Supreme Court has recently denied leave to appeal further the denial of an effort to overturn an award of Arbitrator Robert Grey upholding the termination of a New York City teacher. The dispute involved ten specifications (many with subparts) against the teacher. Among the allegation were "neglect of duty, failure to follow procedures and carry out normal duties, insubordination, and incompetent and inefficient service."

After hearing the evidence, Arbitrator Grey dismissed a number of the specifications. However he ultimately found merit to several others and upheld the termination. He concluded that the teacher "was unable to provide a valid educational experience for the students assigned to her classroom"  and that her "classrooms bordered on anarchy and had an unwarranted and unacceptable potential for danger that no student should be required to endure...." .The teacher sought to vacate the arbitrator's award, claiming that the process was biased, that  had been denied due process, that the decision was arbitrary and that the penalty was "shocking to the conscience"

The Supreme Court (the state's trial level court) rejected all of these claims. The court found neither  bias nor the appearance of bias and noted that the record showed the arbitrator "dismissed some of the specifications against [the teacher] because the conduct charged by school officials either did not rise to the level of the specification alleged, or  respondent had not met its burden of establishing [the teacher's] guilt of that charge. The remaining specifications that were not dismissed are well documented in that many of the exhibits that petitioner herself has provided in support of her petition." Among the specifications dismissed were allegations that the teacher had not provided "bell to bell" instruction and an allegation that she had :threatened to pass gas if students continued to converse in class. Supported, however, were allegations that she had failed to effectively manage and control her classroom, failed to maintain a "late log" and what Arbitrator Grey described as the teacher's "repeated failure to implement advice, counsel, instruction and recommendations..." concerning lesson planning , classroom instruction and classroom management.
Arbitrator Grey also rejected the teachers claim of disparate treatment

The court upheld Arbitrator Grey's award, concluding:

     The determination to terminate petitioner from employment is firmly supported by the extensive documentation of her incompetence. Therefore, the penalty imposed does not shock the conscience or one's sense of fairness.
     In view of the forgoing, respondent has met its burden of showing that petitioner does not demonstrate any statutory basis for vacating or modyfyibg the ward, and therefore, failed to state a cause of action. ... Furthermore, respondent has shown the hearing officer's award has a rational basis. Having failed to state a cause of action, respondent's cross motion for the dismissal of the petition is granted.

 The Supreme Court's opinion can be found here. The Appellate Division opinions affirming the decision and denying leave to appeal can be found here and here (p.64).


In contrast, a Supreme Court judge has overturned an award of Arbitrator Alan Berg upholding the termination of a teacher who was found in possession of 20 glassine bags of heroin as he was reporting for jury duty. Arbitrator Berg concluded that the teacher had subjected himself and the Department of Education to widespread ridicule, "compromising his ability to retain the respect of students and thereby throwing away his ability to be an effective teacher...." He noted that the teacher's conduct left the DOE with no way to know if the teacher had brought the same drugs to school.

Judge Manuel Mendez overturned the arbitrator's award, concluding:

Petitioner herein … was charged with Criminal Possession of a Controlled substance in the Seventh Degree 9a Misdemeanor),  and immediately at arraignment was given an Adjournment in Contemplation of Dismissal. After six months the charges were dismissed and the record sealed. The arrest was not for conduct at the school site or involving any of its students. There is no evidence that he as a criminal record, had been arrested before or since this one incident. There is no evidence that this one arrest or the publicity it generated has impaired his ability to reach, or that he has lost the respect of his students, or can be perceived by his students as a responsible adult to whom they pay attention. Petitioner has admitted he has a substance abuse problem; the arrest is a manifestation of that problem; he is receiving treatment for that problem and is progressing in his treatment. Under these facts, termination of employment is unduly harsh, an abuse of discretion and shocking to this court’s sense of fairness.

Judge Mendez's opinion can be found here.