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Arbitration Law Memo July 2006
by Ross Runkel at LawMemo
Arbitration Law Memo July 2006
by LawMemo - World's Best
Also available by free monthly email.
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Arbitration - Individual Contracts ***
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Arbitration - Collective Bargaining Agreements ***
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DC - Homeland Security Department's collective bargaining system is enjoined.
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CA - Interest arbitration for agricultural employers and unions is constitutional (2-1).
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PA - Multi-part test for core function exception announced in reviewing arbitration awards (4-3).
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DC - FLRA owed no deference to arbitrator's application of "covered by" doctrine.
*** Arbitration - Individual Contracts ***
NLRB - Non-union employer's arbitration policy was an unfair labor practice (2-1).
U-Haul Co of California (NLRB
06/08/2006)
http://www.lawmemo.com/nlrb/vol/347/34.htm
A non-union employer adopted an arbitration policy as a condition of employment or continued employment. The policy listed a number of specific state and federal claims that would be subject to mandatory arbitration, and then added "any other legal or equitable claims and causes of action recognized by local, state, or federal law or regulations."
The NLRB held (2-1) that the arbitration policy violated the National Labor Relations Act because it would reasonably tend to inhibit employees from filing charges with the Board. Specifically, the phrase "any other legal or equitable claims and causes of action recognized by local, state, or federal law or regulations" reasonably includes the filing of unfair labor practice charges with the Board, and thus employees could reasonably believe that they are precluded from filing such charges with the Board. Chairman Battista, DISSENTING, argued that there is no evidence that the rule has been applied to the protected activity of invoking Board processes, that there is no evidence that it was intended to apply to such activity, and that the policy does not explicitly bar any Section 7 activity.
*** Arbitration - Collective Bargaining Agreements ***
DC - Homeland Security Department's collective bargaining system is enjoined.
NTEU
v. Chertoff (DC Cir 06/27/2006)
http://caselaw.findlaw.com/data2/circs/dc/055436A.pdf
Unions representing Department of Homeland Security (DHS) employees sued to enjoin implementation of portions of regulations establishing a human resources management system. The Homeland Security Act of 2002 provides for establishment of "a human resources management system." The DHS Final Rule defines the scope of collective bargaining, channels some disputes through the Federal Labor Relations Authority (FLRA), creates a Homeland Security Labor Relations Board, and assigns an appellate role to the Merit Systems Protection Board (MSPB).
The DC Circuit held: (1) The Final Rule unlawfully reserves to the DHS the right to unilaterally abrogate collective bargaining agreements that are lawfully negotiated and executed pursuant to the human resources management system. (2) The Final Rule violates the Act by limiting the scope of bargaining to employee-specific personnel matters (e.g., discipline, discharge, promotion) and not extending it to other terms and conditions of employment. (3) The DHS exceeded its authority by imposing onto the Federal Labor Relations Authority (FLRA) (an independent agency) a novel appellate function, defining FLRA jurisdiction, and dictating FLRA standards of review. (4) The unions' claim that DHS was not authorized to change the standard by which MSPB might mitigate a penalty for employee misconduct was not ripe for review. (5) The unions' claim that funneling bargaining disputes to the Homeland Security Labor Relations Board does not provide neutral adjudication was not ripe for review.
CA
- Interest arbitration for agricultural employers and unions is constitutional
(2-1).
Hess
Collection Winery v. California Agri Labor Rel Bd (California Ct App 07/05/2006)
http://caselaw.lp.findlaw.com/data2/californiastatecases/c045405.pdf
California Labor Code Sections 1164 et seq. provide that when a California agricultural employer and a union fail to agree on a collective bargaining agreement, they are required to engage in interest arbitration to write a contract.
After
a mediator (sic) wrote a contract for the employer and its certified union, the
employer sought relief. The California Agricultural Labor
Relations Board denied the employer's petition for review, and the
California Court of Appeal affirmed (2-1).
The
court denied the employer's claims that the statutory scheme
violates principles of due process in that it unreasonably interferes with the
right of contract, denies the right of judicial review, is aimed at
protectionism, violates equal protection, invalidly delegates legislative
authority, and is vague and overbroad. The
DISSENT argued that the statute delegated legislative power
unconstitutionally, and violated the equal protection guarantees of both the
state and federal constitutions.
CA – Transportation authority was obligated to bargain with union, even though bargaining unit represented supervisory and management personnel.
Santa
Clara Valley Trans Auth v. Rea (California Ct App 06/28/2006)
http://caselaw.lp.findlaw.com/data2/californiastatecases/h028841.pdf
The primary issue on appeal was “whether [California] state law requires the Santa Clara Valley Transportation Authority (VTA) to bargain with a certain labor union when the bargaining unit the union represents includes supervisory and management personnel.” The conflict arose from a conflict between two Sections of the California Public Utility Code (Sections 100301 and 100309). Section 100301 provides that all questions relating to the collective bargaining rights of VTA employees are to be resolved by application of the Labor Management Relations Act (LMRA). Under the LMRA, an employer may not be compelled to bargain with supervisors and managers. On the other hand, Section 100309 appears to require the VTA to bargain with a group of supervisory and managerial employees that transferred to the VTA in 1995. The court held that Section 100309, the more recent and specific of the two Utility Code provisions, controlled.
PA - Multi-part test for core function exception announced in reviewing arbitration awards (4-3).
Philadelphia Housing Authority v. AFSCME
(Pennsylvania Cmwlth 06/20/2006)
http://www.courts.state.pa.us/OpPosting/CWealth/out/2405CD04_6-20-06.pdf
The arbitrator reinstated the employee after the employer had discharged him for sexual harassment of a co-employee. The trial court denied the employer's petition to vacate the arbitrators award. The Pennsylvania Commonwealth Court reversed. The general issue on appeal was whether the arbitration award drew its essence from the collective bargaining agreement (CBA), and more particularly, whether the core function exception to the essence test was established.
After reviewing cases with respect to the principles of the core function exception, the court announced a multi-part test. First, where serious misconduct was of a sort which had a direct negative impact on the public function of the employing agency, the core function test had been satisfied. Where the conduct was of a type which would have only an indirect or potential impact on the agency's public duties, two conditions must be met. The misconduct must be work-related and must involve dishonesty or other misconduct so egregious that if the agency was unable to curtail such behavior it risked relinquishing control of the orderly functioning of its operations. The court believed that the sexual harassment which involved physical assaults fell into this category.
The DISSENT argued that conduct between co-workers was merely a workplace condition that did not fall within the core function exception to the essence test because a workplace condition was traditionally the subject of collective bargaining. The dissent would apply the Pennsylvania Uniform Arbitration Act which explicitly sets forth the scope of judicial review of public sector agreements.
DC - FLRA owed no deference to arbitrator's application of "covered by" doctrine.
National Treasury
Employees Union
v. FLRA (DC Cir 06/23/2006)
http://caselaw.lp.findlaw.com/data2/circs/dc/051230a.pdf
The
union petitioned for review of the decision of the Federal Labor Relations
Authority (FLRA) holding the employer did not have a duty to bargain over the
Union's proposed leave swapping program. The DC Circuit denied the petition for
review. The issue on appeal was whether the proposed leave swapping program was
"covered by" the national agreement's system of seniority for granting
leave. The FLRA argued that it owed no deference to the arbitrator's application
of the "covered by" doctrine in favor of the union's position and that
it reviewed that part of the arbitrator's decision de novo. The court stated
that whether a subject was "covered by" an existing agreement was a
question of law.
OR - Judgment in related case precluded union from pursuing grievances regarding the treatment of members' pension plans.
Portland General Electric v. IBEW (Oregon Ct App 07/05/2006)
http://www.publications.ojd.state.or.us/A122868.htm
The employer sought a declaratory judgment that union members' grievances regarding the treatment of their pension plans were not subject to arbitration under the parties' collective bargaining agreement. The trial court determined that the grievances were not subject to arbitration and entered judgment for the employer. The court dismissed the appeal, stating "we conclude that a judgment in a related action, which was entered while this appeal was pending, precludes defendant [union] and its members from pursuing their grievances and therefore moots this appeal." The related appeal is Tittle v. Enron Corp., Civil Action No. H-01-3913 (SD Tex 2005). The court reasoned, "[b]ased on the express terms of the settlement agreement, we conclude that the settlement action in the Texas case precludes defendant and its members from pursuing the grievances underlying this case."
DC – Court lacked jurisdiction to review FLRA’s order reducing attorney fees awarded by arbitrator in grievance arbitration.
AFGE Local 2510 v. FLRA (DC Cir
06/27/2006)
http://caselaw.findlaw.com/data2/circs/dc/051123A.pdf
The federal employees’ union petitioned for review of a Federal Labor Relations Authority (FLRA) order reducing the attorney fees awarded by an arbitrator for representing the union in a grievance arbitration. The court dismissed the petition for lack of jurisdiction. The court noted, “[w]e do not have jurisdiction to review a final order of the Authority ‘involving an award by an arbitrator’ unless ‘the order involves an unfair labor practice under section [7116] of Title V, 5 USC Section 7123(a)(1)….’” The court reasoned that it lacked jurisdiction because “the Authority’s order addresses only the attorney’s fee, and therefore does not involve an unfair labor practice….”
DC – Federal employer revoked its consent to bargain over changes in shift rotation and regular days off for certain customs inspectors.
NTEU v. FLRA (DC Cir 06/27/2006)
http://caselaw.findlaw.com/data2/circs/dc/051266B.pdf
The National Treasury Employees Union sought review of Federal Labor Relations Authority (FLRA) decision upholding a grievance arbitration award rendered in favor of the federal employer. The FLRA concluded that the employer effectively revoked (via a revised National Inspectional Assignment Policy (RNIAP)) its consent to bargain over changes in shift rotation and regular days off for certain passenger customs inspectors. The court reasoned that the FLRA’s determination was not “arbitrary, capricious, or otherwise contrary to law.”
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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