Arbitrator: City can verify dependent coverage under Health Benefits Program

In 2010, San Antonio firefighters represented by IAFF, Local 624 had a "passive" enrollment during the open period of the City's health care plan. Employees were not required to affirmative confirm dependent coverage; if a firefighter did nothing coverage would continue for previously listed dependents. That same year the City arranged for an outside consultant to audit the health care plan. That audit concluded that appropriate documentation for dependent family members, including birth and marriage certificates, was missing from some employees records.

In 2012, in order to confirm or verify that dependents covered under the family medical plan remained eligible, the City notified employees that they must actively enroll during the annual open period. The Union challenged this action and, after a period of litigation, the dispute was submitted to Arbitrator Maretta Comfort Toedt for resolution.

The Union raised a number of claims in support of its grievance. Initially it asserted that the City's action in requiring verification of dependent coverage violated the Maintenance of Standards provision of the cba. The Union argued that the "standard" in question was the Company's practice of never previously having conducted  audits of covered dependents. Arbitrator Toedt rejected this contention, noting:

"Freedom from audits” does not fall within the parties’ definition of a standard, privilege, or working condition. While the City may not have conducted audits for the purpose of verifying eligibility for dependent coverage in the past, this is not the same as a standard, privilege, or working condition. I agree with the City on this point; the grievance does not properly identify a standard, privilege or working condition as contemplated under Article 9. 

The Union also claimed that the Company's conduct breached the cba's guarantee that health care benefits for active Fire Fighters "shall not be terminated, altered, modified or reduced during the term of the Agreement." The Arbitrator concluded that the Union's reliance on this provision was misplaced. She observed:

While Article 25, Section 3 provides that the City will not terminate, alter, modify or reduce health care benefits during the term of the Agreement, it does not prohibit the City from determining eligibility and terminating coverage for individuals if they no longer meet the eligibility criteria for receiving those benefits. [footnote omitted]

Finally, the Arbitrator concluded that the benefit plan's Master Contract Document, which was incorporated into the cab, "implicitly but clearly entitled the City to conduct reasonable inquiries from time to time to confirm eligibility and to determine coverage."

Arbitrator Toedt declined to rule on the stipulated question of whether the City had the ability to discipline or terminate employees for failing to provide dependent coverage information, noting the absence of any lie case before her. She noted :

The most that I can say is that any case in which an employee is disciplined or discharged for failing to provide such information must be decided on a case-by-case basis by the arbitrator to whom it is presented. The City must prove the facts underlying the discipline. That arbitrator must determine whether the discipline or discharge was for just cause, which may include, among other considerations, whether notice was provided, progressive discipline, the appropriateness of the discipline, and possibly other due process issues. I can say no more than that I have interpreted the language of the CBA/MCD to mean that the City can request such information without violating either the CBA or the MCD. 

The San Antonio Express News reports on the case, and links to Arbitrator Toedt's award, here

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.

June Update: Police suspensions, striker misconduct, a spitting teacher and a question of notice

Arbitrator reverses suspensions of police officers involved in fatal chase

Arbitrator Dennis Minni has sustained grievances filed on behalf of four Cleveland police officers.  The four grievants were supervising officers and were disciplined for alleged offenses including failing to request permission before joining the chase, leaving subordinates unsupervised, and failing to monitor the automatic vehicle locator ("AVL"). Initially, Arbitrator Minni explained that he believed the appropriate standard of proof was that of clear and convincing evidence. He noted his belief that most arbitrators utilized this standard in disciplinary cases because of the employer's control of the workplace and equipment and access to employees. Requiring this level of proof, in his opinion, "levels the playing field and helps insure that workplace due process occurs." Concluding that the City failed to meet this burden he sustained the grievances, noting also that he could not "escape a fairly pervasive feeling that these disciplinary decisions were designed to play to a different audience rather than correct and rehabilitate in the labor-management sense."

 Cleveland.com reports on the case and links to Arbitrator Minni's award here.

NLRB ALJ refuses to defer to arbitrator's award,  finds picketer's racially charged statements protected

 Administrative Law Judge Thomas Randazzo concluded that Cooper Tire violated the National Labor Relations Act when it terminated the employment of a locked out employee for racial remarks directed to a replacement employee crossing the Union's picket line. The termination was submitted to arbitration, and Arbitrator Roger C. Williams upheld the termination. The Arbitrator found that grievant's conduct violated the explicit terms of Cooper's harassment policy and that the use of racial slurs on the picket line increased the possibility that the constant verbal exchanges would escalate into violence. Applying the Board's traditional standards (i.e. before those were modified in Babcock & Wilcox Construction Company), the ALJ found the Arbitrator's decision "clearly repugnant" to the Act and therefore refused to defer to the Arbitrator's award.
 
The ALJ's decision is available here.

Arbitrator upholds tenure charges against teacher accused of spitting at student

Arbitrator Tia Schneider Denenberg has upheld the dismissal of a tenured teacher, finding he spit at a student who had walked out of his classroom following a verbal altercation. While noting that the teacher appeared capable, with multi-lingual skills and good performance reports, "by responding intemperately to an aggressive student in defiance of a clear caution, he gave the district grounds for doubting his self-control." Accordingly she concluded that the district had shown cause for removing the teacher from his tenured position.

Arbitrator Denenberg's award can be found here.

Connecticut Supreme Court upholds arbitrator's award finding just cause for dismissal of family services worker

Grievant was employed as a social worker with the Connecticut Department of Children and Families.  She became the foster parent of a child who had been returned to the Department by another foster family. According to the grievant, the child fell from a bed. The child was taken to the hospital but was pronounced dead. Grievant was criminally charged with manslaughter and risk of injury to a child, and her employment with the Department was terminated. She was acquitted of the criminal charges, and the employment termination was submitted to an arbitrator for decision. The arbitrator concluded that in light of  the medical examiner's finding that the physical injuries on the child were not consistent with death from a fall, but rather from shaken baby syndrome, the Department had not carried its burden of establishing that grievant had committed the fatal abuse of which she was accused. However, the Arbitrator found that grievant's own explanation of the incident established that she had been negligent and the child's fall could have been the "last straw" for earlier traumatic injuries. The Arbitrator concluded that grievant's "moment of negligence" had unusually serious consequences and that the totality of circumstances made her unemployable by the government entity responsible for the care and welfare of children.
The Union sought to set aside the award, and the Superior Court agreed, finding that "The arbitrator exceeded her authority in using negligence as a standard and basis for her award. The charge of negligence was never made by the department at the [Loudermill] hearing or in the termination letter...." On the Department's appeal, the Appellate Court reversed, finding that grievant was adequately notified of the conduct in issue, even if the term negligence was not used. The Connecticut Supreme Court had now affirmed that decision, rejecting the Union's claim that grievant had not been properly notified of the charges against her. The Court held:

[Grievant] was clearly informed that the arbitrator would consider whether her conduct on the night of May 19, 2008, constituted just cause for termination. 
***

Although [Grievant] did not concede that she had been negligent, this was a legal conclusion that the arbitrator was free to draw from her testimony, one that is not subject to review by this court. Therefore,  [Grievant] was provided with sufficient notice to satisfy her right to due process and the notice provision of the collective bargaining agreement. 

 The Court's decision can be found here. The opinion of Justice Eveleigh dissenting on the due process issue can be found here.

Arbitrator rejects grievance but imposes a remedy - Union succeeds in vacating award

The cba between North Memorial Health Care and The Minnesota Nurses Association provides that an employee with thirty years service cannot be required to work weekends unless compliance would "deprive patients of needed nursing service." When grievant reached her thirty year mark she requested to be exempt from weekend work. Her request was denied, however, because the institution deemed the request inconsistent with necessary patient care. The Union grieved the denial, and the dispute was submitted to Arbitrator Richard John Miller.

Arbitrator Miller denied the grievance, finding that the contract expressly allowed the institution to invoke a patient care exception. He noted, however, that it would be arbitrary  and discriminatory to allow the Medical Center to deny grievant the opportunity to decline weekend work while allowing other, similarly situated employees, to do so. Accordingly he ordered that "if [North Memorial] invokes the 'exception' proviso to compel qualifying nurses to work on weekends the number of required weekends shall be equally shared (divided) among those qualifying nurses. . . ."

 MNA moved to vacate the award. The Union claimed that the Arbitrator had exceeded his authority by deciding an issue not submitted to him, and by effectively nullifying other provisions of the cba which prohibited a change in a nurse's written work schedule without the employee's consent.

The District Court agreed with both claims. It determined first  that:

The record reflects that neither party expressly asked the arbitrator to devise a remedy in the event he found a violation of the CBA. Of course, it may be implied that the parties agreed a remedy should issue if a violation occurred, as MNA suggested various scenarios in which it believed North Memorial could meet patient care needs while still offering the no weekend work benefit to Drake. ... Here, however, Miller found no violation but nonetheless imposed additional obligations on the parties. ... There is no indication that the parties intended Miller to issue a remedy without first finding a violation on the part of North Memorial. Indeed, Miller's own issue statement premised fashioning an appropriate remedy on first finding a CBA violation. .... Because Miller strayed beyond the issues submitted to him, vacatur is warranted.

The Court also agreed that by requiring North Memorial to divide weekend shifts equally among nurses who qualify for the no weekend benefit the award nullified other articles of the cba. The Court found this to be an independent basis for setting aside the award. 

The Court's decision in Minnesota Nurses Association v. North Memorial Health Care and North Memorial Medical Center can be found here.

Update: The Eight Circuit has affirmed the District Court's decision here.

Rhode Island Supreme Court finds arbitrator improperly ignored management-rights clause

Grievant was an officer for the Rhode Island Department of Corrections. The Department received information that two officers were smoking marijuana in a department vehicle while on duty. An investigation uncovered that one officer had in fact been smoking marijuana in the vehicle, and the second, the grievant, had been in the vehicle but had failed to report the incident. Grievant repeatedly denied seeing the other officer smoking until he was advised that of the existence of a witness, at which time he admitted that the other officer had been smoking marijuana on duty.  Grievant's employment was terminated for failing to report that the officer was smoking marijuana on duty and for dishonesty during the investigation.

 The dispute was pursued to arbitration and an arbitrator converted the termination to a 60 day suspension. In doing so the arbitrator noted that the cba did not contain a schedule of offenses and related discipline and he relied instead on evidence submitted concerning a prior incident of claimed dishonesty which resulted in a suspension. The arbitrator observed:

[i]f, over an extended period of time, management has responded to a particular type of offense with a range or band of discipline based on the individual circumstances and severity of a case, an arbitrator would be hard[-]pressed to go outside that defined spectrum of penalties unless the offense itself is significantly outside said spectrum.


The Department sought review of the decision, and the Superior Court vacated the award finding that the decision was based on a "manifest disregard" of the cba.  It concluded that the arbitrator had "exceeded his authority and reached an irrational result" when he ignored the management rights provision of the cba.

The Union appealed to the Rhode Island Supreme Court, which has now affirmed the lower court's decision.  The Supreme Court determined:

Here, the arbitrator did not resolve the dispute based on any provisions in the CBA. In fact, the arbitrator decided—improperly we conclude—that, because the CBA did not list offenses and corresponding penalties, he would not rely on the CBA in making his decision and instead would "look elsewhere for guidance on this question" to reach this result. Not only is the CBA pertinent to the determination of just cause in this case, the arbitrator's failure to consider its terms was a manifest disregard of the contract.

The Management Rights section of the CBA, specifically section 4.1A., provides that
"the employer shall have the exclusive right, subject to the provisions of this [CBA] and consistent with applicable laws and regulations: * * * To hire, promote, transfer, assign, and retain employees in positions within the bargaining unit, and to suspend, demote, discharge or take other disciplinary action against such employees[.]" (Emphasis added.)

The arbitrator wholly overlooked this section of the CBA in his decision.

 The Court rejected the Union's argument that the lower court had incorrectly found that the management rights clause superseded the just cause provision, observing:

 ...we do not agree with this characterization of the trial justice's determination. The trial justice concluded that the arbitrator exceeded his authority when he manifestly disregarded the management-rights provision of the CBA, not that the management-rights provision trumped the just-cause provision. We agree with her conclusion.

 Two justices "respectfully, but nonetheless forcefully," dissented. They believed that the majority was improperly substituting its judgment for that of the arbitrator and that the award was well within the arbitrator's authority to decide whether there was just cause for the discipline.

The Court's opinion in State of Rhode Island Department of Corrections v. Rhode Island Brotherhood of Corrections Officers can be found here.

Quick Hits - Law Enforcement

Officer's growing large amount of marijuana doesn't justify immediate dismissal

Grievant was employed as a police officer for the City of Buffalo. He was the subject of criminal and internal affairs investigations which revealed that he was growing large amounts of marijuana in a warehouse. He had visited the area of the warehouse on several occasions in his police vehicle. When confronted with the results of the investigations, the officer acknowledged that he had been participating in the marijuana grow operation since before he joined the Department. The Police Commissioner summarily terminated his employment. The Buffalo PBA pursued a grievance claiming that the City had failed to provide grievant with the contractual right to an informal conference and a formal hearing before terminating his employment. Arbitrator Jeffrey Selchick sustained the grievance, noting "the [contract] language brooks no exception based on the Commissioner's perception, no matter how reasonable and well founded, that the evidence of an officer's wrongdoing is overwhelming and termination is fully justified." The Arbitrator ordered the City to pay grievant for lost pay until the date of his guilty plea, less a thirty day unpaid suspension the City would have been contractually able to impose while it investigated.

 WIVB.com reports on the case, City to pay nearly $220k to dirty cop behind bars, and Arbitrator Selchick's award can be found here.

Public policy requires a determination of likelihood grievant will re-offend before reinstatement award can be upheld

An earlier post, Arbitrator overturns termination despite finding "unnecessary, unjustified, unreasonable" use of force because of due process considerations, noted an award reinstating a police officer who had been accused of using excessive force and of being less than candid with the Department. Although finding both of these allegations supported by the evidence, the Arbitrator found the delay in the Department's investigation and the failure of superior officers with knowledge of the incident to take timely action weighed against termination. Accordingly he ordered the grievant's reinstatement without back pay. The City sought to vacate the award, and the Circuit Court for Cook County granted the City's request, finding the award contrary to public policy. The Union appealed, and the Illinois Appellate Court has now reversed that decision and sent the dispute back to the arbitrator for him to make a specific finding on the likelihood that grievant would engage in similar conduct if reinstated. Clarification of the award is necessary, according to the Court, to allow it to "fully assess [the award's] public policy implications." The Court's opinion can be found here.

Sheriff's Deputy leaving official vehicle in the dark on side of highway and making false statement during investigation just cause for dismissal

Arbitrator James R. Cox has upheld the termination of a Sheriff's Deputy for parking his official vehicle at least partly in the traffic lanes, turning the lights off and then "intentionally making false and inaccurate reports of the circumstances to investigating officers." Pantagraph.com reports on the case, Ex-deputy's firing upheld by arbitrator, and links to the award of Arbitrator Cox here.

Dismissal of officer for discharging weapon while off duty upheld

The Connecticut State Board of Mediation and Arbitration has denied a grievance filed on behalf of a New Haven officer. Grievant was one of three off duty officers at a restaurant when the New Haven PD received a report of shots being fired in the area. Several spent shell were found in the area and it was determined that 5 of the 6 shells had come from grievant's weapon. The Union maintained that the evidence was insufficient to support a termination, or, alternatively, that lenience should be shown and a lengthy suspension be imposed. The panel unanimously rejected these positions noting "This incident was not a minor issue such as firing off a firearm in the woods by teenagers. This was an incident where a mature police officer fired off at least five rounds in the middle of a congested city where someone could have been wounded or killed by an off duty police officer sworn to uphold the law against such activity."

The panel's decision can be found here

Connecticut Supreme Court clarifies use of public policy in challenges to arbitration awards

Since first recognizing a public policy exception to the general rule of deference to arbitrator's awards, the Connecticut Supreme Court has issued six decisions in which an employer has sought to vacate, on public policy grounds, an arbitrator's award reinstating an employee. The Court summarized those decisions as follows:

 In one half of those cases, we held that reinstatement of the terminated employee violated a clear public policy of the state. See State v. AFSCME, Council 4, Local 391, supra, 309 Conn. 521 (correction officer engaged in persistent sexual harassment of coworkers); Groton v. United Steelworkers of America, 254 Conn. 35, 36–37, 757 A.2d 501 (2000) (weighmaster at municipal landfill pleaded nolo contendere to embezzlement charge); State v. AFSCME, Council 4, Local 387, AFL-CIO, 252 Conn. 467, 468–69, 747 A.2d 480 (2000) (correction officer placed obscene, racist telephone call to state senator). In the other three cases, we upheld the decision of the arbitrator reinstating the terminated employee. See Stratford v. AFSCME, Council 15, Local 407, supra, 315 Conn. 50–52 (police officer misrepresented history of alcohol use during official medical exam); State v. New England Health Care Employees Union, District 1199, AFL-CIO, supra, 271 Conn. 129–31 (Department of Mental Retardation employee shoved agitated client into chair); South Windsor v. South Windsor Police Union Local 1480, Council 15, 255 Conn. 800, 802–805, 770 A.2d 14 (2001) (police officer deemed unfit for duty after drawing gun on trespassers playing basketball in school gym). 

In its unanimous decision in Burr Road Operating Company II, LLC v. New England Health Care Employees Union, District 1199 the Court has, in an effort "to assure consistent, principled decisions," clarified the factors a reviewing court should consider when evaluating such a claim. The case arose from the arbitration of a grievance filed by an employee of a nursing facility. The grievant had delayed in reporting her suspicion that a resident had been abused. The arbitrator concluded that while the delay warranted some discipline, termination was too severe. The employer sought to vacate the award, but the Superior Court denied the request. The nursing home appealed, and the Appellate Court (in an opinion discussed here) vacated the arbitrator's award. The Appellate Court determined that the award violated the public policy calling for protection of nursing home residents. The Supreme Court has now used this case to clarify the factors to be used by courts in reviewing awards in the face of a public policy challenge, and to assist arbitrators in the types of factual findings they may make to assist a reviewing court in considering such a challenge. The Court synthesized a four pronged test for review:

Specifically, in determining whether termination of employment was necessary to vindicate the public policies at issue, both the majority and the dissenting opinions of this court have, either expressly or implicitly, focused on four principal factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible

Applying these factors to the case before it, the Court first found no serious challenge to the applicable public policy of protecting vulnerable nursing home residents. Concerning the second issue, the Court observed that it is a "rare case" in which the Court will vacate on public policy grounds an award reinstating an employee in the private sector. It recognized however, a limited exception when reinstatement of a grievant by itself would pose a serious threat to public safety (e.g. reinstatement of a pilot for operating an aircraft while drunk). The Court noted that residential nursing home facilities pose "something of an exceptional case" because of the state's interest in protecting vulnerable residents. It found this factor neutral with respect to vacating the award in this case. Turning to the third and fourth factors, the Court found an insufficient basis for overturning the award. It noted that, as found by the arbitrator, grievant had in fact ultimately reported her suspicions, and there was no evidence of a likelihood of recidivism. Finding that the Appellate Court had improperly substituted its judgment for that of the arbitrator, the Court reversed and remanded the case for consideration of a second issue not previously addressed by the Appellate Court.