Waiver of a challenge to the jurisdiction of an arbitrator and how to avoid it

The Ninth Circuit has affirmed a decision rejecting an effort by Asarco to vacate an award by Arbitrator Michael Rappaport. (The District Court's decision, and Arbitrator Rappaport's  award are discussed in "No-add" language in cba doesn't prevent arbitrator from modifying contract.) The Court  disagreed, however, with the District Court's decision that Asarco had not waived its challenge to the jurisdiction of the arbitrator to hear the dispute.

Arbitrator Rappaport upheld a grievance claiming that the parties had not discussed or understood the impact of an agreement to exclude new hires from the existing pension plan on the eligibility of the new hires to participate in a separate bonus plan. Concluding that the parties were mutually mistaken about how the pension modification would impact bonus eligibility, he ordered the contract amended to specifically provide for bonus eligibility for the new hires notwithstanding their exclusion for the pension plan. Asarco filed suit to vacate the award, arguing that the arbitrator had exceeded his authority by ignoring contract language providing:

The arbitrator shall not have jurisdiction or authority to add to, detract from or alter in any way the provisions of this Agreement.

The District Court rejected the Union's claim that Asarco had waived its challenge to the arbitrator's jurisdiction but, on the merits, "concluded that the arbitrator did not violate the no-add provision because the reformation corrected a defect in the [cba], which was the product of mutual mistake, to reflect the terms the parties had agreed upon"

On appeal, the Circuit Court found that Asarco had, in fact, waived its challenge to the arbitrator's jurisdiction. 

The Court reviewed several methods a challenge to an arbitrator's jurisdiction could be asserted:

Generally speaking, the issue of arbitrability is decided by the courts. ...  The parties may, however, agree to submit the question of arbitrability to the arbitrator. ... Additionally, as occurred here, the parties may stipulate that the controversy is arbitrable. If, however, a party "objects to arbitration on jurisdictional grounds, [it] may refuse to arbitrate the case."... The party seeking arbitration is "then put to the task of petitioning the court to compel arbitration." ... Alternatively, a party can "object[ ] to the arbitrator's authority, refuse[ ] to argue the [jurisdictional] issue before him, and proceed[ ] to the merits of the grievance." Id. at 1475. "[T]hen, clearly the [jurisdictional] question would have been preserved for independent judicial scrutiny." Id. "The same result could be achieved by making an objection as to jurisdiction and an express reservation of the question on the record." Id.

As another alternative, the objecting party can "take[ ] the initiative by seeking declaratory and injunctive relief prior to the commencement of the arbitration." .... The objecting party can take any of these steps to "obtain[ ] an independent judicial examination of the [jurisdictional] question."

The Court concluded that Asarco had not utilized any of these methods. It noted that at the beginning of the arbitration hearing Asarco had stipulated that the matters properly before the arbitrator and that the arbitrator had jurisdiction to decide the grievance. Finding a waiver, the Court observed:

When ASARCO argued to the arbitrator that the he lacked authority to reform the [cba], it submitted that issue to the arbitrator, and could not seek a different result from the district court. The argument was waived. Additionally, ASARCO's decision to argue the issue to the arbitrator suggests that it never really objected to the arbitrator's jurisdiction at all, but rather objected only to the arbitrator crafting the remedy that the Union sought.

Judge Ikuta, dissenting, would have vacated the award as an improper effort by the arbitrator to ignore the clear language of the contract and to dispense his own brand of industrial justice.

The Court's opinion can be found here.

Update: The Court has withdrawn the opinion discussed and substituted a new one. (here). The new opinion does not contain the discussion of waiver of  a challenge to the arbitrator's jurisdiction.

Arbitrator: City didn't prove rape, but "extremely poor judgement" found. Termination converted to a 40 hour suspension

In his award in Portland Police Association and City of Portland, Arbitrator David Stiteler reversed the termination of a Portland police officer, converting the discipline to a forty hour suspension. Grievant had been dismissed for having sexual intercourse with an acquaintance (A) when she was too intoxicated to consent (essentially an allegation of rape) and by acting unprofessionally and in a way that could bring discredit on the Bureau by having sexual contact with A after she had been drinking.

Grievant, his wife and A had been friends for some time. Grievant and A had occasionally flirted, and later A, at grievant's request, sent him sexually explicit pictures of herself. There was conflicting testimony about subsequent interactions between the two.

The incident culminating in grievant's termination occurred during a party at grievant's  home in October of 2015. A testified that during the party she felt sick, went upstair to vomit and and went to lie down in a guest bedroom. There was a dispute about what took place next, but both agree there was some sexual contact on more than one occassion. A testified that grievant put his penis in her mouth. She asserted grievant left but returned a second time and repeated his conduct. He then, according to her, returned a third time and briefly had sexual intercourse with her. A testified that she tried to tell him to stop but was unable to say anything. According to grievant the sexual activity that took place was at A's invitation.

The next day A had a rape kit done, and several days later filed a complaint with the County Sheriff's office. The Sheriff's office conducted an investigation, and submitted its conclusion to the prosecutor's office which declined to prosecute, finding insufficient evidence to prove beyond a reasonable doubt that grievant had committed sexual assault. The Bureau conducted its own investigation and submitted its report to grievant's superior. He recommended that the first charge not be sustained, finding insufficient evidence to make a determination between the two versions of what had taken place. However, he recommended the addition of a second charge, that grievant had "acted unprofessionally and in a manner tending to bring reproach or discredit" to the Police Bureau "by having sexual intercourse with (A) after she had consumed alcohol." He felt the second charge was warranted, and a 40 hour suspension appropriate,  because "grievant should have been aware of consent issues."  The recommendations were reviewed (and concurred in) by more senior officers and by the Police Review Board, and were ultimately submitted to the Chief. The Chief initially agreed with the recommendations on both charges. Later, however, he concluded that the allegations of the first charge should also be sustained. Grievant's employment was thereafter terminated.

The dispute was grieved and submitted to Arbitrator Stiteler for resolution. Arbitrator Stiteler initially rejected the Union's claim that because the alleged misconduct occurred while grievance was off duty, it was "largely beyond the City's reach." He noted:

It is well established that an employer has an elevated burden when imposing discipline for conduct outside work. In such cases, the employer must show some clear connection between the alleged misconduct and its legitimate business interests.
I agree with the City, however, that the mere fact that Grievant may have been off-duty does not, in and of itself, mean his conduct is beyond the City's reach. Policy directive 310.00 expressly addresses off-duty conduct, and is aimed at conduct that could damage the public image of the Bureau and the City. The conduct at issue, involving questions about whether sexual activity was consensual, is of the type that falls within the policy directive's proscriptions, and its impacts are connected to Grievant's employment.

He also noted that a police officer's conduct, both on and off duty, is subject to greater scrutiny:

It is also well established that there is a certain relativism in judging alleged employee misconduct. Employees in certain jobs or industries may be held to a higher standard.
Law enforcement is one such profession. A police officer occupies a unique position of trust. That carries with it a special responsibility to avoid conduct that may damage the public's perception. Thus, Grievant's behavior, though off-duty, was a legitimate concern for the Bureau and the City.

However, he found the first charge unproven. While reinforcing that he did not necessarily find A's testimony "not credible," he concluded that in the absence of persuasive evidence there was no reasonable basis for the Chief to reject the recommendations of virtually everyone who had previously reviewed the case. Accordingly he found the Chief's decision to terminate grievant's employment was without just cause.

Nevertheless, he also concluded that the City had sustained the allegations of the second charge:

Grievant knew or should have known that he needed to avoid questionable behavior or misconduct. He knew or should have known that A had been drinking, regardless of whether she appeared intoxicated. He knew or should have known that A had been less enthusiastic about their involvement since the August lunch. All of those things should have led him to make sure she was okay with any sexual contact the night of the party. Instead, he ignored those things and engaged in conduct that could have brought discredit on the City and the Bureau.

Finding grievant had "exhibited extremely poor judgment in his behavior with A on the night of the party" Arbitrator Stiteler upheld the initial 40 hour suspension that had been recommended.

Is there a "bright line" requiring the termination of a police officer found to have been untruthful in a police report?

That is the question the  Massachusetts Supreme Judicial Court is considering in a case addressing an effort to vacate an arbitration award reinstating an  officer found by the arbitrator to have been "intentionally misleading ... but less than intentionally false" in his report.

 In an earlier case (Boston v. Boston Police Patrolmen's Ass'n.), the Court  addressed the "rare instances" in which an arbitrator's award must be vacated as contrary to public policy. In that case, the Court overturned as contrary to public policy an arbitrator's award reinstating a police officer found to have engaged in misconduct and to have demonstrated a lack of integrity:

The arbitrator, concluding that DiSciullo, while on duty, had engaged in “egregious” and “outrageous” “misconduct” toward two civilians and that his subsequent reports of the incident over a two-year period demonstrated that he was “lacking” in both “integrity and trust,” nevertheless determined that DiSciullo's actions warranted a one-year suspension without pay, rather than termination.   ...   We granted the city's application for further appellate review.   As we explain below, because DiSciullo's continued employment as a police officer would frustrate strong public policy against the kind of egregious dishonesty and abuse of official position in which he was proved to have engaged, we vacate the arbitrator's award.

In City of Pittsfield v. Local 447 International Brotherhood of Police Officers, the Court is being asked by the City to find that its prior decision creates a "bright line" test that requires the termination of any officer who  "lie[s] about a material matter in a police report."and to hold that an arbitration award ordering the reinstatement of such an officer is contrary to  public policy.

The award in issue is one decided by Arbitrator Michael Stutz, reinstating a Pittsfield police officer who had been dismissed for stating in a report that he had removed a prisoner from his vehicle “for her safety.” In fact, he had removed her from his vehicle after she had been arrested for shoplifting to allow the store security department to photograph her. Arbitrator Stutz found the report "intentionally misleading ... but less than intentionally false." He also noted that grievant had admitted during the Department's internal investigation and at the arbitration hearing that he had removed the prisoner from his vehicle to allow her picture to be taken, not for her safety, and acknowledged that he should not have done so.  He concluded:

... I find that the seriousness of the grievant's admitted inaccuracy was not so dishonest that it was a capital offense, and, therefore, there was no just cause to terminate for three misleading words in his arrest report.
Nonetheless, the misleading report was a serious offense that calls for progressive discipline. The grievant received a three-day suspension in 2011 and, more recently, warnings. Therefore I will return him to the three-day suspension level of progressive discipline. 

The City sought vacate the award as contrary to public policy. The Superior Court declined to vacate the award. (here). It noted initially that:

...the distinction between "untrue and intentionally misleading" and "intentionally false" escapes me. It seems to me, that if a statement is untrue and intentionally misleading, it is by definition intentionally false.

Nevertheless, the Court refused to vacate, observing:

The City argues that public policy not only permits but requires Eason's termination. It
claims that any lie, be it big or small, absolutely disqualifies a police officer from continuing to
serve in his position, and that any act of dishonesty, no matter the circumstances, requires
dismissal. However, such a "bright line" rule has evidently not been consistently applied by the
City, because, as the arbitrator pointed out, the drug task force member who illegally possessed
steroids received only a five-day suspension and is still a member of the department. There
appears to be some force to the Union's argument that this disparity violates "the principle of
uniformity and equitable treatment of similarly situated individuals." Falmouth v. Civil Service
Commission, 44 7 Mass. 814, 824 (2006). Beyond that, if an officer reported for work fifteen
minutes late and told his supervisor that he was late because his child was ill, and if it was later
discovered that he was late because he overslept, the Court would be hard pressed to conclude
that public policy required that he be discharged from his employment. Even (and perhaps
especially) in matters of public policy, there is room for nuance, judgment and discretion. I am
not convinced by the City's argument that termination is required in all cases of dishonesty,
without exception. Given the other facts found by the arbitrator (i.e., that Wynn's decision to
recommend termination may have been influenced by the 2015 incident in which Eason was
exonerated, that other officers received less severe punishment for similar misconduct, etc.), "it
was within the arbitrator's ample authority to conclude that these factors made progressive
discipline rather than termination an appropriate remedy." City of Springfield v. United Public Service Employees Union, 89 Mass. App. Ct. at 260.

On a direct appeal to the Supreme Judicial Court the City has renewed its argument. The Union argues against the application of any "bright line" rule compelling termination in all case involving dishonesty. Relying in part on two out of state decisions addressing similar issues, Kitsap Deputy Sheriff's Guild v . Kitsap Co., 219 P.3d 675 (Wash., 2009), and  State v. Pub. Safety Emp. Ass'n, 257 P.3d 151 (Alaska, 2011), the Union argues:

... there is no well defined, dominant public policy that requires the termination of every police officer who has made a misstatement without regard to the context, consequence, purpose, impact on the public or the department, or the severity of that misstatement . A bright line test holding that any misstatement requires termination of a police officer serves no purpose and unnecessarily deprives an arbitrator of the power to do what the parties have agreed an arbitrator should do: determine the facts and then determine what if any discipline is appropriate .

The briefs of the parties, and the amicus brief of the Massachusetts Police Chiefs Association, can be found on the Court's docket here. A video of the oral argument is available here (City of Pittsfield v. Local 447 International Brotherhood of Police Officers SJC-12450 Argue Date: Monday May 7, 2018)

  Update: The SJC has affirmed, refusing to find the award violates public policy  CITY OF PITTSFIELD vs. LOCAL 447 INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS  The Courts opinion is discussed in Police dishonesty, public policy and reinstatement - Mass SJC upholds arbitrator's award reinstating police officer who filed ""intentionally misleading" report

Quick Hits - Arbitrability Issues

Incorporation of AAA Rules gives arbitrator authority to decide question of arbitrability

The Second Circuit has rejected a hospital's efforts to vacate an award of Arbitrator Daniel Brent, concluding that the dispute was properly subject to arbitration

The grievance involved a claim by the New York State Nurses Association that Southside Hospital had, for extended periods of time, required nurses to perform excessive non-nursing duties in violation of the cba. Arbitrator Brent upheld the grievance, finding, contrary to the position of the hospital, that the matter was properly before him. The Hospital had claimed that the matter should first have been addressed by the Committee on Nursing Practice provided for in the cba. Arbitrator Brent found that efforts to rectify the situation through the Committee had been unsuccessful and that the Union was "entitled to an impartial determination of the language of Article3.10" which provided that nurses "should not be required to perform non-nursing functions as a part of their assigned duties ... "

The Hospital sought to vacate the award and the Union sought to confirm it. The District Court adopted the Report and Recommendations of the magistrate and confirmed the award (here). The  Second Circuit has now affirmed, (here) finding that the cba's express incorporation of "the existing rules of the American Arbitration Association" empowered the Arbitrator to decide the issue of arbitrability and that "the arbitrator's decision reflects a plainly reasonable application of the CBA, for reasons lucidly explained in the magistrate judge's thorough January 26, 2017 report and recommendation, which the district court adopted in its entirety."


Successor ordered to arbitrate claim that it failed hire employees allegedly terminated by predecessor


Business Resources and Security Services USA ("BRSS") was a subcontractor performing security services at a site in Washington D.C.  Preeminent Protective Services, Inc. took over the subcontract and, as required by the cba between BRSS and SEIU Local 32BJ, offered employment to the BRSS employees at the site and assumed the cba.  The status of two BRSS employees, however, was the subject of dispute. Preeminent claimed the two employees had been dismissed by BRSS prior to the time it took over the subcontract. SEIU claimed that Preeminent had treated these two as having transferred and had begun paying them. The Union sought to arbitrate what it claimed was Preeminent's termination of the two employees.  Preeminent refused, and the Union brought an action to compel arbitration.

The District Court granted the Union's request to compel arbitration. Service Employees International Union Local 32BJ v. Preeminent Protective Services, Inc. The Court determined:

In this case, Preeminent's and the Union's quarrel is not about whether the parties entered into a valid, enforceable contract, or whether the arbitration clause in the contract applies to the parties. Instead, Preeminent raises a threshold question of whether the officers were Preeminent employees, and posits that they were not because they were dismissed by BRSS, making the Union's claim against Preeminent untenable. ... The Union maintains that the officers were not dismissed by BRSS and that they were therefore Preeminent employees who were wrongly discharged by Preeminent.... Analysis of the principles summarized by the Supreme Court in AT&T Technologies counsel that the question is properly for the arbitrator to decide.

Noting that it was not predetermining the final decision, the Court analogized the case to one involving a dispute about whether an employee was probationary and therefore excluded from arbitration. In this case, the arbitrator could decide whether the employees had ever become Preeminent's employees, and determine which entity had terminated them.

FLRA "reexamines" approach to procedural arbitrability review

In United States Smal Business Administration and American Federation of Government Employees Local 3841 the FLRA has "reexamined" its approach to handling challenges to an arbitrator's ruling on procedural arbitrability issues.  Pointing to its decision in Indep. Union of Pension Emps. for Democracy & Justice, the Authority noted that it had previously found that "essence" challenges to an arbitrator's award provided no basis for finding an award deficient. In its SBA decision the Agency has now concluded that:

we now reexamine our precedent and hold that parties may directly challenge arbitrator's procedural-arbitrability determinations on essence grounds. Consequently, we will no longer follow Agency decisions holding otherwise.

Applying the  new standard to the case before it, the Agency determined that Arbitrator Barton Bloom's decision that the grievance before him was procedurally arbitrable "conflicts with the plain wording of the parties agreement."  Accordingly it set aside Arbitrator Bloom's award that while the Union had not complied with the fourteen-day the limit in the agreement to submit a form to FMCS, its grievance was nevertheless arbitrable because the Agency had waived the right to contest the timeliness of the submission by accepting and processing the form without objection, and failed to notify the Union that it had added the issue of timeliness to the FMCS form. Moreover, the Aritrator concluded that in any case, the grievance was procedurally arbitrable because the parties had a practice that allowed the Union not to strictly comply with time limits. Finding the Arbitrator's decision contrary to the language of the cba, the Authority noted:

arbitrators may not look beyond a collective-bargaining agreement- to extraneous considerations such as past practice - to modify an agreement's clear and unambiguous terms. 

 Update: Arbitrator Bloom’s award is available here. The discussion of the timeliness issue appears at pages 45 to 52. 

While the FLRA decision concludes that the Arbitrator's decision on procedural arbitrability failed "to draw [its] essence" from the provisions of the cba, the Award does set forth a detailed analysis of the cba's language on timeliness. 

 After reviewing the precise language of the parties agreement, Arbitrator Bloom determined:

The contractual provision requiring strict observance of time limits set forth in the Arbitration Procedure, however, is not absolute. As provided in Article 40, Section 1, adherence to the contractual time limits is expressly made subject to the existence of any mutual agreement to the contrary. Thus, if there exists an agreement between the Union and the Agency authorizing a relaxation of strict adherence to the time limits, the Union’s failure to abide by the required time limits might not result in forfeiture of its right to arbitration. To hold otherwise would be to ignore the plain language of the Master Agreement.

Noting that "there are numerous ways in which an agreement can be reached,” Arbitrator Bloom concluded :

... by virtue of their long-standing, uniform past practice of not requiring strict compliance with the time limit for submitting request for a panel of arbitrators, the parties have mutually agreed that strict observance of the time limit for submitting the request for panel of arbitrators and fees is not required.

Reaction to police discipline award highlights mixed expectations about the issue to be decided

A recent award, and the reaction to it, highlight the sometimes conflicting expectations involved in arbitration proceedings. While conflicting expectations may not be uncommon, they take on greater significance in matters of police discipline.

Arbitrator William Serda issued an award (here) overturning the termination of Ft. Pierce police Sergeant Brian MacNaught. Sergeant MacNaught had been dismissed following his involvement in the fatal shooting of Demarcus Semer.

Semer was involved in a police stop. During the course of the stop Sergeant McNaught approached the vehicle, which was till running, to open the passenger side door. At some point Semer put the car in gear. While the facts are not clear from the arbitration award, Sergeant McNaught was able to get in to the vehicle. The other officer involved in the stop began shooting at the vehicle. Sergeant McNaught believed the shots were coming from the driver. In an ensuing foot chase, Sergeant McNaught fatally shot Semer. According to McNaught he believed Semer had a weapon and was preparing to use it. In fact, Semer did not have a weapon but was found with a cell phone. (This description comes from a report of the Department's Internal Investigation summarized in an article on TCPalm.com Fort Pierce Police Department internal investigation reveals more details)

The shooting generated significant publicity, and a grand jury was empaneled to investigate. The grand jury returned a no bill, finding the officers' actions objectively reasonable. (here)

Ultimately the Department's internal investigation recommended that Sergeant MacNaught's employment be terminated, a recommendation the City adopted.

The termination did not involve the shooting directly. However, the City did claim that there was a "procedural issue" regarding the actions of the grievant during the traffic stop, and that, separately, the City had discovered during its investigation that he had retained a Department issued body camera despite orders that all body cams be returned to storage until a policy for their use could be developed.

The termination was grieved and submitted to Arbitrator Serda for decision. According to the award:

The Parties agreed in general, and the Arbitrator articulates the issue before us as:
Did the City, Ft. Pierce, FL., have just cause to terminate/discharge Grievant MacNaught on May 8, 2016, for the "body camera incident of April 23/24 2016?"
If not, what shall be the remedy

Notwithstanding this limited issue, the City did argue that:

 The totality of the events, the shooting and the body cameras, cumulatively create clear just cause for termination and meet the requirements of the commonly used "seven management tests for just cause."

It acknowledged that there was no policy or methodology violated by grievant, but asserted that "an experienced officer, applying common sense, should never have created and placed himself in, such a situation." It argued that the Sergeant's entering the vehicle while it was still running created a vulnerable situation should the driver move the car.

Arbitrator Serda rejected the City's reliance on "common sense" concerning the actions surrounding the stop, and concluded that grievant's failure to return the body cam to storage was not an intentional effort to disobey an order but was based on the mistaken belief that his use of the camera for demonstration in his meetings with the public on behalf of the department was exempt from the order.

Arbitrator Serda overturned the dismissal, ordering grievant's reinstatement subject to a one day suspension for his lapse in judgment concerning the return of the body cam.

The reaction of Ft. Pierce City Commissioner Sessions to the award indicates what was perhaps an erroneous expectation by him, and possibly by members of the public, concerning the issue before the arbitrator.  A  report in TCPalm.com (Fort Pierce commissioner wants police to buy out officer reinstated after death of Demarcus Semer) quotes Sessions as saying:

I was really devastated because based on the information that I received, that I was privy to, that it was a slam dunk to have him terminated," Sessions said. "Looking at the arbitrator's ruling, I think what happened was the ball was dropped with regard to what the real issues were. The real issue was this young man being killed where there was not a gun.

Commissioner Sessions called for the City to attempt to buy out Sergeant MacNaught in lieu of reinstatement, expressing concern about his safety should he return to patrol. 

The family of Demarcus Semer has also questioned the fairness of the result, and expressed their lack faith in the system, and the family's attorney indicated that they were pursuing a civil action relating to the shooting. Fort Pierce police officer fired after fatal shooting of unarmed man ordered to be reinstated

Update: Arbitrator Sergio Delgado has issued an award in connection with the termination of the other officer involved in this incident. Officer Robert Hughes was dismissed, not for the shooting itself, but for certain claimed policy violations in the manner in which the traffic stop was conducted, as well as claims that he improperly had a private long gun/rifle in the trunk of his patrol vehicle, and that he had been insubordinate in failing to follow an order to have the vehicles dash cam inspected to make sure it was properly functioning. Arbitrator Delgado sustained the grievance in part and ordered grievant’s reinstatement without back pay. In addition to questions about the severity of the claimed policy violations, the Arbitrator found a denial of due process in the untimely furnishing of information to Union counsel in connection with grievant’s Pre-Determination Hearing. Noting that the grievant was medically unable to return to patrol duties, he “directed that [grievant] be put on paid administrative leave until his application for disability retirement benefits is approved.” Arbitrator Delgado’s award can be found here.

Interest arbitration and the need for candor

Arbitrator Richard Miller reopened and reconsidered an interest arbitration between Hennepin County, MN and Law Enforcement Labor Services, Inc., Local No. 393, concluding that the County had "purposely withheld" information that had been requested by the Union.

 In the initial proceeding, Arbitrator Miller rejected the Union's requested wage increase for a unit of Licensed Supervisors, finding:

The Union is not a victim of disparate treatment. All County employees were treated the same. The County’s philosophy on collective bargaining was to offer uniform pay increases and benefit improvements across all bargaining units unless compelled by good evidence to do otherwise. ...   More importantly, the Employer never deviated from the internal wage pattern unless specific evidence - meeting defined criteria - justified doing so.
Only in those limited cases where attraction or retention problems warranted greater pay did the County voluntarily adjust wages outside the pattern.

Arbitrator Miller's original award, dated August 1, 2017, can be found here.

The Arbitrator's conclusion was based in part on the assertions of the County that it had a "strict" practice of rejecting above pattern increases absent a voluntary turnover rate at least twice the County average. The County argued that it "never broke its internal pattern unless specific evidence - meeting defined criteria - justified doing so. No supervisory job class in the county met those criteria"

In preparation for the interest arbitration, the Union had requested information concerning wage increases for other employees. The County responded to the request except that it failed to produce information about above-pattern increases for several non-organized job classes. 

The Union subsequently heard about a 7.5% increase, provided to the "non-organized classes of Chief Deputy and Sheriff's Majors," a group with no apparent attraction or retention problems,  about a month after the Arbitrator had rendered his initial decision.  In light of the new information, the County agreed to the Unions request to have the Arbitrator once again review the Union's request for market adjustments for the Licensed Supervisors. 

In his award, Arbitrator Miller noted:

Labor relations is built on trust and honesty between the Parties and not on omission or failure to provide relevant information, which occurred in this case. Unfortunately, this trust was breached by the County. This is very disappointing. While it is true that Mr. Olness and others in his department may not have participated in the decision to grant the 7.5% market adjustments to the Chief Deputy and Majors (as it appears this was done solely by the Sheriff), they knew at the time of the interest arbitration hearing with the Licensed Supervisors that the Chief Deputy and Majors were going to receive this market increase for 2016 with no retention problem. ... Yet, the County made a purposeful decision to delay implementing the market adjustment, and not just until after the July 7, 2017 interest arbitration hearing, but until after the arbitration award was issued.

  In light of the new evidence that there in fact was not a "uniform policy" regarding market adjustments Arbitrator Miller concluded that the Licensed Supervisors should be treated the same as the Majors and Chief Deputy in terms of comparing their compensation to the external market and awarded a market adjustment he had previously rejected.

Arbitrator Miller's award on reopening can be found here.

 Update  The issue of claimed misrepresentations during collective bargaining in the private sector is discussed in an NLRB Advice Memo Haier U.S Appliance Solutions, Inc.

Two public policy reversals, last chance agreements, and call out pay

Minn. court overturns award reinstating police officer accused of failing to report use of force

The Minnesota Court of Appeals has refused to uphold an arbitrator's award reinstating a police officer who was dismissed for alleged use of excessive force and for failure to properly report the use of force. City of Richfield, v. Law Enforcement Labor Services, Inc..  The officer had responded to a report of a number of people driving erratically. During the course of his investigation grievant pushed one of the individuals he was speaking with and hit him in the back of his head. He did not file an incident report concerning his use of force. After a video of the incident appeared on Twitter, the department began an investigation and ultimately dismissed the officer both for his use of force and his failure to report that use of force. The matter was submitted to Arbitrator Charlotte Neigh who issued an award finding that force grievant used was not excessive, but that he had failed to properly report his use of force. She found that the failure was not intended to conceal the incident,which would have been misconduct, but was a lapse of judgement which was a performance issue. She ordered grievant's reinstatement subject to a three day suspension for the unacceptable performance. The City sought to vacate the award. It did not challenge the Arbitrator's finding on the excessive force issue, but argued that "an arbitration award reinstating an officer who failed to report his use of force—after he had been trained, retrained, counseled, and disciplined on this topic—violates public policy." The district court denied the City's request, but the Court of Appeals reversed. It found:

Reinstating [grievant]—an officer who admittedly failed to report his use of force when he should have and has had prior offenses and warnings regarding the same duty to report—interferes with the RPD's legal obligation to establish and enforce minimum standards of conduct for its police officers. Specifically, it interferes with the clear public policy in favor of police officers demonstrating self-regulation by being transparent and properly reporting their use of force. Further, the arbitration award interferes with the public policy against police officers using excessive force because the only way a city and police department can successfully uphold that public policy is if they are given the opportunity to review occasions involving the use of force.

  The Court noted that this was only the second time it has vacated an arbitration award reinstating a police officer as contrary to public policy but determined that:

To do otherwise would violate a well-defined and dominant public policy by jeopardizing public safety and undermining public trust in law enforcement.

NY Appellate Division rejects "irrational," "unsustainable" award reinstating employee dismissed for sexual harassment

Reversing the lower court decision confirming the award, New York's Appellate Division has refuse to enforce an arbitrator's award reinstating an individual who had been dismissed for alleged sexual harassment, finding the award contrary to public policy. Matter of New York City Transit Auth. v. Phillips. Concluding that the award effectively prevented the employer from complying with its legal obligation to protect against sexual harassment in the workplace the Court found:

... the arbitrator's decision is irrational as it purports to adopt the findings of the EEO in all respects, and yet arrives at the unsustainable conclusion that [grievant] did not violate the workplace sexual harassment policy. Among the express findings of the EEO — with which the arbitrator was "compelled to agree" — were that [grievant] offered to act as Melendez's "sugar daddy"; that [grievant] stated, in the presence of others, that he would "stay in bed all day" if he had a woman like Melendez and would "oil her down"; and that [grievant] placed his wallet on the ledge and stated in the presence of others, "I would give all of this" for Melendez.
Given such findings, it is unfathomable that the arbitrator could find that [grievant's] conduct did not violate the workplace policy against sexual harassment, which expressly defines sexual harassment to include behavior which "has the purpose or effect of unreasonably interfering with an individual's work performance or creates an intimidating, hostile or offensive working environment." This disjunction between the arbitrator's findings and his summary conclusion that [Grievant's] behavior nonetheless did[sic] "did not rise to the level" of sexual harassment is fundamentally irrational ...

The Court found that the arbitrator's modification of the termination to a "meager 10-day suspension" was contrary to the well recognized policy of the State and "cannot stand." It remanded the case "to a different arbitrator to enter a finding that respondent Aiken subjected Melendez to inappropriate and unwelcome comments of a sexual nature in violation of petitioners' sexual and other discriminatory harassment policy, and to pass upon the appropriateness of the penalty of termination."

The Court had earlier found erroneous the arbitrator's finding that the Union's action's of placing grievant on Union leave effectively precluded discipline Arbitrator's award that cba precludes discipline of employee on union leave found contrary to public policy

Last Chance Agreement makes dispute not subject to arbitration

An earlier post (Last Chance Agreements- Arbitrability of triggering event) discussed a decision of the Western District of Pennsylvania concluding that, in the absence of specific language rebutting the presumption of arbitrability, a Last Chance Agreement didn't preclude the arbitration of the factual question of whether the grievant committed the act alleged to be in violation of the agreement. An Illinois Appellate Court has now reached a different conclusion on arguably similar facts. The Court's unpublished decision can be found here.  The Court concluded:

...the LCA explicitly stated that, were [grievant] to violate department rules again, he could not invoke the CBA’s procedure, including its final grievance-resolution step of arbitration, to fight the matter. Rather, any violation–any “non­ compliance”–would result in termination of his employment, leaving no room for debate. The LCA repeated this again two more times when it clarified that the “non-compliance” may be related to any directive, standard or protocol issued by [grievant's] supervisor, deputy chief or any administrator, and when it ordered him, “in the presence of” the Union and Employer, to acknowledge his understanding of this. And, most evident here is the paragraph of the LCA appearing immediately above its signature lines, which stated:
"As a condition of your acceptance of these conditions relative to this 'last chance agreement' and your acknowledgement [sic] of your agreement to waive all rights to grieve this corrective action, please sign this document along with your union representative."
Undeniably, Jordan and the Union, along with Employer here, signed this LCA and waived all rights to arbitration in any regard with respect to the issue of his employment and, likewise, its termination. The presumption of arbitration has been overcome.

Minimum hours guarantee applies "per call-out" 

The Pennsylvania Commonwealth Court has refused to vacate an arbitrator’s award finding that grievants were entitled to two minimum call out guarantees when they were called out twice on a holiday. City of Pittsburgh v. Teamsters Local Union No. 249 The cba provided that employees called out on a holiday were to be paid three times their hourly rate for all hours worked, and were guaranteed a minimum of eight hours at the triple time rate. Grievants, snow plow operators, were called out at 10 pm and worked through 10 am the following day (Presidents' Day). They received 12 hours pay at the triple time rate. They were again called out at 6 p.m. and worked for four hours. They were paid an additional four hours at the triple time rate. They grieved, claiming that they should have received an eight hour minimum for the second call out. The issue was presented to Arbitrator Christopher Miles who upheld the grievance. Rejecting the position of the City that the employees were entitled to one eight hour minimum per holiday, Arbitrator Miles concluded that nothing in the language of the contract specifying that the minimum guarantee was limited to one call out per holiday. Finding the language applies "per call-out" he sustained the grievance. The Common Pleas Court confirmed the award, and the Commonwealth Court has now affirmed that decision. The Commonwealth Court held:

Viewing the award as a whole, the Arbitrator based his decision on the language in Section 11.B. He did not add new words to the CBA; he interpreted it. So long as his interpretation is rationally derived from the CBA, it must be upheld. Here, we must conclude it is. The Arbitrator explained that, in his view, Section 11.B applied when an employee is "called out to work on a holiday." (Arbitrator Decision at 4.) This mirrors the language found in the second sentence of Section 11.B. While the City's interpretation is equally persuasive, as stated above, our standard of review is limited to determining whether the Arbitrator's interpretation is rationally derived from the CBA. "It is not necessary that this Court agree with an arbitrator's interpretation of a CBA for it to be sustained." ...

Arbitrator Miles' Award can be found here.