"No-add" language in cba doesn't prevent arbitrator from modifying contract

Can an arbitrator rewrite a contract to reflect the original intent of the parties despite language prohibiting the arbitrator from adding to or modifying the agreement? Arbitrator Michael Rapport said yes, and the District Court in Arizona has now confirmed that award. 


The cba between Asarco and the Steelworkers called for the payment of a Copper Price Bonus to unit employees on a quarterly basis, computed relative to the current price of copper. The agreement limited eligibility to employees accruing credit under the pension plan at the end of the calendar quarter.

In negotiation for a successor contract in 2011, the Company proposed that new employees would not be covered by the pension plan. It was undisputed, however, that there was no discussion of the impact of that proposal on the eligibility of new employees for the Copper Price Bonus or the link between pension eligibility and  eligibility for the bonus plan. The new agreement, with the Company's language on elimination of pension eligibility for new employees, was ultimately agreed to by the Union and ratified by the members.

After agreement was reached, one of the Company's HR representatives asked the Company's Director of Labor Relations about the impact of the pension language on bonus eligibility, explaining that as he read the language new employees were no longer eligible. The Director responded that "we have an issue here" and that this was new information for him. It was also undisputed that for several months after the new agreement became effective new employees were told that they would be eligible for the bonus.

As the time for payment arrived, the Company notified  the Union that it would not be paying the bonus to new employees. It maintained that the express language of the agreement rendered ineligible new employees not participating in the pension plan. The Union grieved the Company's decision and the dispute was submitted to Arbitrator Rappaport for resolution.

The Arbitrator issued an award upholding the grievance. He noted that while no contract language supported the Union's position, the doctrine of mutual mistake applied and warranted reformation of the contract. He found that neither party anticipated the impact of the elimination of pension eligibility on eligibility for the bonus payment. He rejected the Company's argument that language in the cba that withheld from the arbitrator "jurisdiction or authority to add to, detract from or alter in any way the provisions of [the] Agreement" prevented him from reaching such a conclusion. He observed:

What all this means is that the ultimate issue in this case is whether the Union met its heavy burden of showing that there was a mutual mistake made by the parties in negotiating and adopting the July 1, 2011 MOA. In situations of that kind, it has been recognized by numerous, but not all, arbitrators and other authorities that in the interests of justice and fairness, the arbitrator can rewrite a contract to correct what appears to be an obvious mutual mistake.

Accordingly the Arbitrator modified the cba to explicitly include eligibility of new employees for the Copper Price Bonus.

Asarco sought to set aside Arbitrator Rapport's award, arguing that he had exceeded his authority and that he had ignored the "no-add" provision of the cba. The Court summarized Asarco's claim:

 ASARCO argues that the Arbitrator exceeded the express jurisdiction and authority granted to him by the parties and dispensed his own brand of industrial justice by issuing an award that fails to draw its essence from the BLA [Basic Labor Agreement]  because it expressly violates the BLA. ... Citing United Food & Comm'l Workers Union, Local 1119, AFL-CIO v. United Markets, Inc., 784 F.2d 1413, 1415 (9th Cir. 1986), ASARCO contends that if "the arbitrator's interpretation [of the collective bargaining agreement] violates the terms of the agreement, the court cannot enforce the award." (Doc. 1 at 11.) According to ASARCO, the award must be vacated because the Arbitrator added a new five-line term to the BLA, despite the BLA's express language stating that the Arbitrator did not have authority to vary the terms of the agreement.

Rejecting this claim, the District Court concluded :

The Court finds that the "no-add" provision did not close the door on the Arbitrator's authority to fashion relief when the undisputed facts revealed mutual mistake by the parties. The Arbitrator's reformation of the collective bargaining agreement only corrected the defect in the written document so that it reflected the true terms of the parties' agreement. The Arbitrator did not exceed his authority by applying ordinary principles of mutual mistake and reformation in the context of the "no-add" provision of the BLA.

The Court accordingly denied Asarco's request to vacate the award and granted the Union's request that the award be confirmed. The Court's decision can be found here.

A similar resolution is discussed at Correcting mutual mistake is not the same as modifying the contract

Burden of Proof, Racial Profiling, Untruthfulness - Arbitrator upholds termination of police officer

Grievant was employed by the City of Chaska, Minnesota as a police officer. He had held that position for approximately 14 years with no significant discipline.

 In May of 2014 grievant was rotated to the day shift. In an effort to get out of what he described as a "funk" and improve his statistics for actively enforcing traffic laws, grievant began using stationary patrols as his primary method of traffic enforcement. This involved grievant parking at a location and looking for traffic violations. The use of stationary patrols was neither encouraged nor discouraged by the Department.

While engaging in these patrols grievant would randomly enter plate numbers of nearby vehicles to check for outstanding warrants and for individuals driving with a suspended or revoked license. This was a common method utilized by officers in the Department. Among the locations of grievants stationary patrols were the entrances and exits of two mobile home parks. Many of the residents of the mobile home parks were Hispanic and a number of residents were undocumented individuals who did not have drivers licenses. Per policy, if a plate check showed that the registered owner of a vehicle did not have a license, and if the driver generally matched the gender and age of the registered owner, it was appropriate to pull over the driver. Grievant continued to engage in these stationary patrols and, on a number of occasions, pulled over and issued citations to individuals who did not match the gender/age of the registered owner. Grievant's activities engendered a number of complaints to the Department alleging grievant was targeting Hispanics, and the Department instructed grievant to cease the stationary patrol at those locations. Grievant was upset at this directive but complied. Grievant was subsequently instructed to cease running random license plates and to cease arresting drivers for not having a license without the approval of a supervisor. In discussions with his supervisors concerning this directive grievant was alleged to have stated " I am personally responsible for sending over 100 illegal immigrants back to Mexico." Grievant denied making this statement. The Department thereafter arranged for an independent investigation of grievant's stops, and in April of 2015 terminated grievant's employment  asserting that he had "engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic/Latino drivers..." and that he had "provided untruthful answers during your interview ...."

The City's action was grieved and ultimately presented to Arbitrator Richard John Miller for resolution.

Arbitrator Miller rejected the grievance and upheld the termination.

Initially Arbitrator Miller addressed the question of burden of proof. Rejecting any effort to categorize the appropriate burden, the Arbitrator observed:


"Burden" and "quantum" of proof are two of the most involved aspects of the rules of evidence, which ordinarily are eschewed by arbitrators as being so complicated, theoretical and technical that they are unsuitable for such a relatively informal process. Consequently, rather than assigning to this case a quantum of required proof, such as proof beyond a reasonable doubt, preponderance of the evidence, clear and convincing evidence, or evidence sufficient to convince a reasonable mind of guilt, a better and more realistic approach to take is a determination of whether the Grievant is guilty of the appearance of and racial profiling by his patrol activity in the targeting of Hispanic drivers and, if so, was his misconduct the type serious enough to justify his discharge.

Applying this test, Arbitrator Miller concluded that the City had established the charges alleged. He found:

The Grievant asserts that his stationary patrol activity at the entrances and exits of the mobile home parks targeted traffic violations and not a specific class of people. However, that assertion is refuted by the evidence showing that the Grievant relied on racial and ethnic stereotypes as factors in selecting where to engage in stationary patrol and whom to stop and search. When the Grievant conducted stationary patrol at the entrances and exits of two mobile home parks widely known to have predominantly Hispanic residents, versus conducting stationary patrol on Highway 41 where the race of drivers could not be reasonably anticipated, his patrol activity effectively focused on racial and/or ethnic stereotypes as factors in his stops of Hispanic drivers since he associated no DL violations with Hispanics.

In light of this conclusion, the Arbitrator determined:

The Grievant engaged in patrol activity resulting in the unauthorized and unlawful targeting of Hispanic drivers in violation of CPD General Orders and the state statute. His conduct brought discredit to himself and the CPD and detracted from the respect and confidence of the community that is essential to law enforcement effectiveness.

 The Arbitrator also found that the evidence supported the City's claim that grievant had been untruthful, and that this provided an additional basis for the City's actions, noting:

A Police Officer is "granted special powers" and is held out as someone "the public can trust." City of Brooklyn Center v. Law Enforcement Labor Services, Inc., 636 N.W.2d , 244 (Minn. Ct App. 2001), rev. denied (Dec. 11, 2001). Police Officers are held to a higher standard of conduct than other public employees. This stems in part from the oath that Police Officers take to protect the public they serve. The public entrusts the safety and security of lives and property to the protection of Police Officers. In turn, Police Officers are expected to conduct themselves in an exemplary manner adhering to the regulations promulgated by the CPD. The CPD badge and uniform worn by all Police Officers are symbols of the public's faith and trust, and Officers must conduct themselves in such a manner to be a role model to all citizens by adhering to the CPD General Orders and the state statute.

Accordingly Arbitrator Miller deemed the City's action's supported by just cause and therefore denied the grievance. The Arbitrator's award can be found here.

February Quick Hits

USM followed contract in layoff of faculty

Arbitrator Mark Irvings largely rejected a grievance filed by the Associated Faculties of the Universities of Maine  challenging the University's "retrenchment" (layoff) of faculty at USM resulting from economic pressures. While the Union challenged the need for layoffs, and offered its own analysis of the financial health of the system, Arbitrator Mark Irvings concluded that the University acted "for bona fide financial or program reasons" within the meaning of the cba. 

The Portland Press Herald reports on the decision USM followed contract when it laid off faculty members in 2014, arbitrator rules and links to a redacted copy of the award here. 

Court: Arbitrator did not ignore last chance agreement, upholds award

The US District Court for the Southern District has refused to overturn an award of Arbitrator Robert Simmelkjaer.  UNITE HERE Local 100 v. Westchester Hills Golf Club, Inc. Arbitrator Simmelkjaer sustained the grievance filed behalf of a bartender who had been dismissed. In 2010 Arbitrator Susan Mackenzie reinstated grievant following his termination for insubordination but imposed a last chance condition. Separately, the Golf Club entered into a last chance agreement with grievant in settlement of a dispute about a proposed termination in 201. In 2013 grievant was working as a bartender at a bereavement lunch. A participant complained about his behavior and the Club again terminated his employment. Arbitrator Simmelkjaer found that the Club had not established that grievant engaged in the conduct alleged. Additionally, he concluded that the last chance agreement entered into in 2011 was unenforceable because the Union was not a party to the agreement. He rejected the Club's claim that, since grievant was a shop steward, further participation by the Union was unnecessary. The Court concluded that the Arbitrator acted within the scope of his authority and his award was entitled to confirmation. (A similar issue is addressed in Last chance agreement doesn't bar arbitration when union is not a party)

City to appeal order confirming award reinstating police officer

Arbitrator Mark Reed sustained a grievance filed on behalf of a Guthrie, Oklahoma police officer dismissed for his actions in arresting his wife's ex-husband. Arbitrator Reed's award can be found here. The Arbitrator concluded that grievant's conduct warranted severe discipline but that an unfair investigation and grievant's length of service supported mitigation of the penalty. The City unsuccessfully sought to set aside the award, and it has now indicated its intent to appeal that decision. City Council appeals judge ruling that former Guthrie police officer should be reinstated.

Police discipline 

A column in the San Antonio Express News reviews the arbitration award that reinstated an officer involved in the fatal shooting of his girlfriend's ex-boyfriend and asserts Union undermines police chief in appeal process. The article links to the award of Arbitrator LeRoy Bartman here.

The issue of police discipline is the subject of news articles in Texas (Police disciplinary process questioned by McManus), Massachusetts (Discipline for Boston police officers frequently overturned Arbitrators rule in favor of officers three out of four times),  New York (Schenectady to appeal police discipline case to state's highest court) and California (How San Jose cop fired for combative Black Lives Matter tweets got his job back).

Court confirms award upholding termination of oboist

The District Court for the Western District of New York has rejected an effort to overturn an award of Arbitrator Robert Rabin upholding a termination. Grievant was an oboist with the Boston Philharmonic. The Court rejected the unsuccessful grievant's challenges to the arbitrator's evidentiary rulings, and declined the grievant's invitation to find a violation of public policy in the award. The Court denied grievant's claim that an award upholding a termination was contrary to public policy "because his profession as an oboist is extremely limited in terms of job opportunities."  The court's decision in Roy v. Buffalo Philharmonic Society, Inc. can be found here.

Court rejects public policy challenge to arbitrator's reinstatement of teacher accused of inappropriate touching

A music teacher employed by the Franklin [PA] Regional School District was accused  of inappropriately touching a student. The school conducted an investigation and ultimately charged the teacher with "immorality, incompetency and willful violation of school laws" and terminated his employment. The school, as required by law, also reported the allegation to the local police department and the County's Children's Bureau. Both of those organizations investigated and found no basis to prosecute or proceed further.

After a hearing, an arbitrator found that the school district had failed to establish that the teacher had engaged in any inappropriate touching, finding the allegation unfounded and unsupported by the facts. He found further that the conduct that grievant acknowledged engaging in, "snake biting" (squeezing a child's knee between his thumb and forefinger) and "good mannered threats to use a slapstick for discipline," did not support termination. 

The School District sought to set aside the award, asserting that it was contrary to public policy. The Common Pleas court agreed, in part, finding that the conduct the teacher acknowledged having engaged in violated school district policy and  that the award was "not in accord with established public policy of protecting students from impermissible touching by their teachers." As a result, the Common Pleas court modified the arbitrator's unconditional reinstatement and ordered instead a  prospective, and conditional, reinstatement. 

Both the School Board and the Union appealed, and the Commonwealth Court has now reversed that decision. Reaffirming that in reviewing an award of an arbitrator the court is bound by the arbitrator's factual findings, the Court concluded:

 common pleas improperly viewed the situation through another lens and usurped the arbitrator's fact-findings. .... the District acknowledged that [grievant's] conduct was not sexual in nature and that no criminal charges were pursued. We conclude, therefore, that the arbitration award does not pose an unacceptable risk of causing the District to flout its legal obligations and public duty. Accordingly, not only did the District fail to satisfy the narrow public policy exception, but the court also erred in modifying the bargained-for award.

The Commonwealth Court also rejected the School District's challenge to the arbitrator's use of a "beyond a reasonable doubt" standard of proof, noting:

 The arbitrator chose to use that standard in light of the fact that a discharge was at issue, involving, inter alia, an immediate loss of income, a blemish on an employee's record and potential difficulty in securing subsequent employment. In determining that the District did not prove the allegations pursuant to that standard of proof, however, the arbitrator noted that he would have rendered the same decision had he used the preponderance of evidence standard. In any event, the arbitrator has some discretion in choosing a standard of review. See Elkouri and Elkouri, How Arbitration Works, Chapter 15, Section 3(D)(ii)(a) at 15-24, 15-27 (7th ed. 2012) (acknowledgement that many arbitrators apply higher standards of proof in cases involving stigmatizing behavior). Accordingly, the District's argument is without merit.

The Court's opinion in Franklin Regional School District v. Franklin Regional Education Association can be found here.  An earlier decision of the Commonwealth Court upholding a public policy challenge to the reinstatement of a teacher found to have engaged in improper contact is discussed here.

Arbitrator's finding that police officer's use of force was reasonable precludes public policy challenge to reinstatement award

On March 30, 2012, Arbitrator Jane Wilkinson ordered the reinstatement of Portland police officer Ronald Frashour. Officer Frashour had been dismissed because of the Chef's conclusion that he had used  excessive force in his fatal shooting of an individual who turned out to be unarmed. The Chief deemed Officer Frashour's conduct contrary to the Department's  use-of-force policies. Arbitrator Wilkinson's award is discussed here. She concluded that the City had failed to establish that the officer's conduct was objectively unreasonable or contrary to the Department's policies. 

The City announced that it would not comply with the arbitrator's award (Mayor Will Not Follow Arbitrator's Order To Reinstate Frashour). It claimed, inter alia, that the award was contrary to public policy. The Portland Police Association filed an unfair labor practice charge with the State's Employment Relations Board. The ERB upheld the award (here), holding that in light of the Arbitrator's findings that there was no basis to the claim the Frashour had violated Department policy there was no public policy bar to his reinstatement. The City appealed the decision to the Oregon Court of Appeals. The City's claims, and the Union's response, are discussed in Police discipline and public policy.

The Court of Appeals has now affirmed the ERB's decision. Portland Police Assn. v. City of Portland. The Court agreed with the ERB's analysis that because the arbitrator found that Frashour "was not guilty of the misconduct for which discipline was imposed" there was no violation of public policy in enforcing the award. The Court also rejected the City's alternate argument that the arbitrator's failure to defer to the decision of the Chief was, itself, contrary to public policy: 

In the city's view, [the ERB's] approach was flawed because it failed to consider that the arbitrator's conclusion that Frashour did not engage in misconduct itself violated public policy, specifically, the public policy, "clearly defined in statute and case law, that deference be given to the determination by the Chief of Police of the City of Portland that Officer Frashour's use of deadly force violated the City's policies." As a result, according to the city, the award was unenforceable under ORS 243.706(1), and the board therefore erred in concluding that the city had committed an unfair labor practice when it refused to implement the award.

The Court noted that "the statute does not appear to impose that same 'public policy' limitation on the arbitrator's review of the misconduct determination itself."  Affirming the conclusion that once the arbitrator concluded that the officer had not committed the misconduct alleged the public policy exception to enforcement of the arbitrator's award simply didn't apply, the Court observed:

the city has failed to identify statutes or judicial decisions "clearly defin[ing]" a public policy requiring deference to a police chief's determination regarding whether an officer has violated a city's use-of-force policies. See Salem-Keizer Assn. v. Salem-Keizer Sch. Dist. 24J, 186 Or.App. 19, 24-25, 61 P.3d 970 (2003) (for ORS 243.706(1) to bar the enforcement of an arbitration award, "the award must order something that either the legislature or the courts have determined to be contrary to public policy").

The City is currently reviewing the decision and has not yet announced whether it will appeal further. Portland considers taking Frashour's reinstatement order to state Supreme Court.

Moral turpitude, just cause and an arbitrator's authority

The New Hampshire Supreme Court has affirmed a lower court's decision vacating an arbitrator's award overturning the termination of a University professor (the grievant).

The professor had intentionally lowered the evaluation students had given lecturer at the University of New Hampshire. He erased markings on the evaluations and entered different (and lower) ratings. The University concluded that this conduct amounted to an act of "moral turpitude" within the meaning of the cba and terminated his employment.

The cba defined just cause as "encompass[ing] professional incompetence, deliberate neglect of duty or moral turpitude." The cba further provided that "[i]f charges involving moral turpitude are sustained, the bargaining unit member may be terminated immediately and the bargaining unit member shall not be entitled to receive further pay or benefits.

The dispute was grieved, and Arbitrator Gary Altman overturned the termination. (Arbitrator overturns decision to fire UNH professor). Arbitrator Altman concluded that grievant had engaged in an act of moral turpitude, but nevertheless, because of several mitigating factors, found the termination did not comport with principles of just cause. H remanded the matter to the parties to negotiate an appropriate level of discipline.

The University sought to set aside the award as in excess of the Arbitrator's authority, and the superior court agreed, vacating the award.(UNH professor dismissed from job). The Union appealed, and the NH Supreme Court has now affirmed that decision. 

The Court concluded that:

  ... having found that [grievant] engaged in conduct constituting “moral turpitude” within the meaning of Article 14.2.1, “the arbitrator was barred from further inquiry because such additional probing constituted ignoring the plain language of the contract.” Poland Spring Corp., 314 F.3d at 34 (quotations and brackets omitted). “[O]nce an arbitrator finds that an employee has committed an act specifically listed in the collective bargaining agreement as providing just cause for termination, the arbitrator is not free to fashion a separate remedy apart from the one provided by the parties’ agreement.” Id. “If the parties intended mitigating circumstances to affect whether [moral turpitude] constitutes just cause for termination, then they would have expressed their intent in the contract.” Id. at 35. Because the arbitrator found that [grievant]  engaged in “moral turpitude” and that finding is not challenged on appeal, his decision to overturn UNH’s decision to terminate [grievant's] employment “due to mitigating circumstances impermissibly substituted his own notions of industrial justice over those established by the contract.” Id. 

The Court rejected the Union's argument that because the cba provides that a bargaining unit member "may" be terminated it did not preclude that Arbitrator from fashioning a remedy in accord with general just cause standards. The Court found that the cba expressly enumerated moral turpitude as a proper basis for discharge and that the arbitrator exceeded his authority by overturning that decision. 

The Court's decision (University Systems of New Hampshire Board of Trustees v. Dorfsman) can be found here. Two earlier post address court decisions finding that arbitrators did not exceed their authority in rejecting termination where the cba provided that certain conduct was "subject to discharge" or "subject to termination." See "Subject to discharge" and progressive discipline and "subject to termination" does not equal automatic termination.

Arbitrator upholds discipline of E-911 dispatcher for delayed dispatch

Grievant was employed for eighteen years with the County of Onondaga's Department of Emergency Communications. On the morning of November 29, 2012 she was working as a fire dispatcher. After receiving a report from the 911 call taker about an individual reporting trouble breathing, grievant appropriately dispatched a rescue unit. Approximately 22 seconds later the caller reported that he smelled smoke. The call taker coded the report as a residential fire and the information was transmitted to grievant. Contrary to protocol, Grievant did not dispatch fire equipment but sent another dispatcher to check with the call taker. There were several more reports which, according to the County, should have resulted in grievant dispatching fire equipment, but grievant failed to do so until approximately five minutes after the initial call.

The County issued a written reprimand, alleging several violations of County work rules, including a failure to follow job instructions, failure to transmit pertinent information in a timely manner and failure to update events as needed.

Rejecting the grievance challenging the warning Arbitrator Gordon Mayo noted:

Firefighting is not an exact science, and each structure fire poses its own problems in fire suppression. Nonetheless, this five minute delay in proper dispatching may have contributed to the caller's demise, as he did not survive the fire. 

The Arbitrator rejected grievant's claim of confusion, and her reliance on a claimed "five minute rule." Upholding the reprimand he concluded:

Mistakes happen in the workplace. Except in extraordinary circumstances, such errors do not result in death. An E-911 Center is different - there life and death outcomes depend upon the dedicated employees who staff these facilities. [Grievant] has been by all accounts a fine employee over her eighteen year career. Here, however, her failure to act in accordance with normal protocols may have contributed to a man's death. As a result, the penalty of a written reprimand is an appropriate punishment. 

Arbitrator Mayo's award can be found here.