Statute incorporated into collective bargaining agreement subject to arbitration

The collective bargaining agreement between the Town of Saugerties and the Town Of Saugerties Policeman's Benevolent Association contained a provision that the Town "agrees to comply with the requirements of Section 971 of the Unconsolidated Laws of New York." That statute limited the ability of the Town to require a police officer to work in excess of 8 hours in a 24 hour period. The Union sought to arbitrate a dispute about the application of this provision, and the Town sought a court order staying the arbitration. The Town argued that resolution of the grievance would require application or interpretation of the terms of the statute and maintained that public policy would not allow an arbitrator to do so.

Affirming the lower court, the New York Appellate Division rejected the Town’s claims. It noted that the incorporation of the statute makes it a substantive provision of the agreement, and that no public policy precluded its interpretation by an arbitrator.  As it was clearly covered by the arbitration provision of the agreement there was no basis for a stay. 

The court’s decision can be found here.

Labor Arbitration in the news

Arbitrator Richard Bloch has found the Postal Service in breach of its labor agreement by its unilateral implementation of a work measurement system. Arbitrator Bloch Rules That the Postal Service's 2010 Time Study Violated Article 34


The City of Plattsburgh and AFSCME each prevailed in grievances involving the City's Finance department. http://pressrepublican.com/0100_news/x950977086/City-of-Plattsburgh-and-union-split-arbitration-decisions


Montgomery County Md. is ordered to restore compensatory leave to employees also receiving longevity increases. Montgomery county ordered to repay comp time to more than 80 employees.


Arbitrator Michael Cavanaugh ruled that the City of Bainbridge Island violated a labor agreement that specified that layoffs and job reclassifications be carried out strictly in seniority order. Bainbridge ordered to rehire four laid-off workers, pay lost earnings. [ Arbitrator Cavanaugh's award can be found here]


Finally, while not directly involving labor arbitration, Eric Epstein has an interesting article in ADR Times concerning credibility resolutions in arbitrations involving claims of sexual harassment. She said, He said : How Does An Arbitrator Decide Who to Believe?

Arbitrator's reliance on past practice not beyond scope of authority

          A Texas Court of Appeals has rejected an attempt to overturn an arbitration award concerning buy back of unused sick leave.City of Laredo v. Mojica.

          The dispute arose when the City stopped buying back unused sick leave, claiming that the contractual buy back process was discretionary and the cost of buying back unused sick leave from all City employees would have been financially burdensome. The union asserted that the City’s decision to suspend the program violated the CBA.

          The arbitrator concluded that the contract did give the City discretion concerning the buy back issue, but “the City’s unvarying practice of exercising its annual option to purchase accumulated sick leave for more than 10 years reasonably has led the Union and its members to expect the City to continue to exercise the annual option absent a good faith reason to suspend the program.”

          In seeking to set aside the award, the City maintained that the arbitrator exceeded his authority under the contract by considering whether the firefighters’ expectation that the City would buy back their sick leave was subject to a “good faith” standard.

          In refusing to set aside the award, the court held:

Because Mojica alleged a violation of the CBA due to the City's past practices, this would affect the interpretation or application of the CBA's provisions. Therefore, we hold the issue of the City's past practices of buying back the firefighters' sick leave was an arbitrable issue

                                         ***

Here, the CBA did not expressly state that the City's past practice of buying back sick leave or whether the City acted in good faith could be considered. But, even if the arbitrator made a mistake of fact or misapplied the substantive law when he considered the City's past practices, we find his consideration of the City's past practice drew its essence from the CBA                    

Labor Arbitration in the news

Arbitrator Janice Frankman finds Princeton, MN failed to properly pay employees for snow plowing duties. Arbitrator: City wrongly denied overtime | The Princeton Union-Eagle  Update: Arbitrator Frankman's award can be found here.

Ashtabula, Ohio seeks to vacate or modify arbitration award reinstating police officer. Ashtabula asks court to ‘modify’ or ‘vacate’ arbitrator’s ruling on police officer’s firing » Local News » The Star Beacon; Ashtabula, Ohio

Interest arbitration:

 Dover, Deleware    Dover's unionized police get pay hike following decision by state arbiter | The News Journal | delawareonline.com

Doylestown, PA  Arbitrator awards police 14 percent pay raises, refunds on health care co-pays - phillyBurbs.com : Doylestown: doylestown township, doylestown township police benevolent association, police contract,

Somerville, Mass . Judge denies attempt to block $4.3 million raise for Somerville firefighters - Boston.com

Arbitrator Upholds Fire Department Staffing Requirement

          Arbitrator Dennis Maloney issued a supplemental award requiring the City of Springfield , Ill. to restore its 49 employee minimum staffing rather than the 46 employee plan implemented by the Fire Department. Arbitrator Maloney noted that the contract allowed for a reduction of the minimum staffing in the event of layoffs required by lack of funds. However, since the City agreed that layoffs would be avoided during the "difficult financial times", the minimum staffing promise prevailed and the Union's grievance was sustained.

          The Springfield State Journal-Register has an article describing the case, with a link to the award, here

Impossibility of performance no defense to breach of contract

Arbitrator Paul Glendon has issued an award finding that the City of Taylor, Michigan breached its labor agreement with the Taylor Professional Firefighters Association, Local 1252. The agreement between the City and the Union contained a minimum staffing guarantee. The contract was scheduled to expire on June 30, 2011 but, pursuant to its terms, was continued in effect during negotiations for a successor agreement. On July 1, 2011 the City implemented layoffs of firefighters, reducing the staffing below the guaranteed minimum. The City justified its actions based on seriously declining economic conditions. The City contended that “the present financial crisis ….results in a legal justification for breach of the collective bargaining agreement.”

Arbitrator Glendon rejected the City’s position. In doing so he noted that the contract did anticipate layoffs in certain situations, but no exception was made to the minimum staffing guarantee. He also rejected the City’s claim that any breach was justified by the financial impossibility of performance, writing that “it would be an abuse of arbitral authority to countenance the City’s unilateral attempt to alter or modify the contract … notwithstanding any dicta by the Ohio Court of Appeals concerning the applicability of general contractual defenses to arbitration of disputes arising under a collective bargaining agreement.”

Finally, Glendon observed that, in any case,the City’s evidence failed to establish that the layoffs were a matter of unavoidable necessity.

Labor Arbitration in the News

Termination of Holland Mich. City Clerk upheld. Arbitrator decides Holland firing of clerk justified.

Arbitrator James Mancici converts termination to suspension. Brook Park policeman wins back job.

Arbitrator Lawrence Coburn awards police officers additional pay for working late shifts Nazareth officials must pay police back pay, arbitrator says.

An interest arbitration decision: Arbitrator decides on Nutley police contract