Several recent awards

Several arbitration awards are the subject of recent news reports.  In one, Arbitrator Phil King ordered the reinstatement of a 911 dispatcher who had been dismissed for her handling of a call involving an officer’s shooting. Arbitrator: Dispatcher fired after Arlington officer's shooting should get job back | (Star-Telegram). The second involved the dismissal of two police officers for their alleged involvement in a controversial arrest. Arbitrator: Two Santa Fe cops wrongfully fired, get back pay « Santa Fe Crime.  Arbitrator Phillip Davis ordered both officers reinstated. A third involved the demotion of a police sergeant who claimed that the demotion was in retaliation for his support of the mayor’s opponent in an election. Arbitrator reverses demotion of Hialeah sergeant - Hialeah - MiamiHerald.com.

Award in Verizon Layoff Arbitration

Arbitrator Jack Tillem has issued an award in a dispute concerning the layoff provisions of the Verizon/CWA labor agreement. The dispute arose when Verizon notified the Union that it would be laying off certain employees in New York City.  The Union claimed that the contract required that layoffs take place in inverse seniority order from among all employees in the affected title in the 13 state bargaining unit. Verizon claimed that the relevant language limited the layoffs to employees in the affected work group.

Agreeing with Verizon, Arbitrator Tillem found the language of the agreement was not ambiguous and, by its terms, supported the Company’s actions.  He also noted the practical difficulties the Union’s interpretation would create, and concluded that the failure of the parties to address these difficulties in contract language tended to suggest that the union’s interpretation was not the intended one. A copy of Arbitrator Tillem’s award can be found here.

Three awards in pharmacy related cases

    The California law firm Kelly, Hockel & Klein links to three recent arbitration awards (here, here and here ) upholding the dismissal of pharmacy employees. Arbitrator Walter Daugherty upheld the dismissal of an employee for allegedly falsifying company records by claiming falsely that customers had refused to sign certain forms. Arbitrator Frederic Horowitz upheld the dismissal of a clerk who sold alcohol to a minor (an undercover decoy) without requesting an id verifying age.   Arbitrator Frank Silver upheld the dismissal of a pharmacy employee whose name appeared on the Office of Inspector General’s list of persons excluded from participating in Medicare and Medical programs as a result of a conviction for Social Security related fraud.

Federal Agency "taken to the woodshed" over layoff.

Joe Davidson at the Washington Post has a column reporting on a recent arbitration award involving a layoff by the Broadcasting Board of Governors. Arbitrator thrashes Cuba Broadcasting over worker treatment.  According to Davidson, who includes a link to portions of the award in his column, the Agency was “taken to the woodshed” by the arbitrator, who found the Agency improperly manipulated  the layoff process to target particular employees.

Rite Aid must comply with Card Check Agreement

A court has enforced an award of Arbitrator Richard Kasher, requiring Rite Aid to comply with the terms of a neutrality and card check agreement between Rite Aid and UFCW Local 1360. Rite Aid of New Jersey Inc. v. United Food and Commercial Workers Union, Local 1360.

Rite Aid and Local 1360 had entered into an oral card check/neutrality agreement in November of 1999. The parties subsequently entered into a series of collective bargaining agreements, all of which contained recognition language including an after acquired stores clause. The clause extended the bargaining unit to stores added via an NLRB election or “…other demonstrations of the Union status acceptable to the employer…” Rite Aid recognized the Union for approximately sixty three stores through the card check procedure, but later began insisting on an NLRB election. The union filed a grievance, claiming that the employer had improperly refused to accept the card check procedure, in contravention of the agreement and past practice. The arbitrator sustained the grievance, and Rite Aid went to court seeking to have the award vacated. Rite Aid argued, inter alia, that the arbitrator “failed to draw from the essence of the 2005 CBA and exceeded his power by amending or altering the 2005 CBA”.

The court rejected Rite Aid’s efforts and enforced the award. Noting the limited review of an arbitrator’s award, the court held that arbitrator’s award was grounded in the contract, and that the arbitrator could conclude that the language of the recognition clause was ambiguous and that the employer had agreed to accept the card check procedure. While it noted that it found Rite Aid’s interpretation of the CBA to be more persuasive, it had no basis to set aside the award.

Update: The Third Circuit's decision affirming the District Court is discussed here.

Arbitrator's modification of discipline not barred by contract

          The Third Circuit has affirmed a district court's decision enforcing an arbitration award.Wilkes Barre Hospital v. Wyoming Valley Nurses Ass'n.  Grievant had been dismissed for alleged patient care issues and insubordination. The arbitrator concluded that the employer did not have just cause for the dismissal and ordered grievant reinstated with full seniority and benefits, less a 10 day suspension. The employer sought to set  aside the  award, claiming the contract limited the arbitrator to either upholding the discipline in whole or reversing it entirely. The employer maintained that contract language that "The arbitrator shall have the authority only to deny or uphold the grievance" prohibited the arbitrator from modifying the discipline.
         The court noted that while the parties can limit an arbitrator's authority by contract, the language here did not explicitly limit the arbitrator's authority. Other language in the contract, referencing the discretionary award of damages, tended to support the arbitrator's interpretation and, in any event, the arbitrator's interpretation was grounded in the language of the contract and was entitled to deference. Accordingly the court affirmed the enforcement of the award.

Teacher discipline, student witnesses

          The Canadian law firm Miller Thomson has an update concerning the potential need to call student witnesses in an arbitration over a teacher's discipline. Student witnesses might be necessary to prove case. The update highlights the practical problems faced by a school board in proving misconduct in a case involving student/teacher interaction without the student's testimony. In the award discussed, the arbitrator rejected many of the school board's claims, finding that they were not supported by probative evidence. The arbitrator noted "While I recognize the practical difficulties the Board faces in locating former students to testify in a case of this nature and accept that I am entitled to rely on evidence that is not admissible in a court of law, I nevertheless substantially agree with the Association that I should not rely entirely on hearsay evidence to support the essential facts forming the basis of the Board’s discipline in the circumstances of the present case."
Similar concerns often arise from discipline cases involving  customer complaints  or allegations of customer mistreatment.