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April 17, 2005
Can non-signatory successor union force arbitration?
At the time employee Shutt was discharged, AFSCME had a collective bargaining agreement with an arbitration clause. The next day, another union - WMEA - got certified as the collective bargaining representative. Later, WMEA grieved Shutt's discharge and took it to arbitration. Although WMEA was certified, it was not signatory to any collective agreement.
Q: Can WMEA compel arbitration?
A (by the arbitrator): No.
A (by the court): Yes.
The arbitrator's reasoning (says the court): "The arbitrator concluded that the grievance was not arbitrable because there was no statutory or contractual basis to arbitrate the grievance. In particular, the arbitrator determined that there was no evidence that the town agreed to be contractually bound to WMEA by the agreement negotiated by AFSCME."
The court then decided that the arbitrator "exceeded his powers."
The court's reasoning: Although there was a change in unions, the collective agreement continued, and so did the employer's duty to arbitrate. But with whom? Once a new union is certified, the old union has no rights, and the new union can enforce the collective agreement. Beyond that, "The arbitrator's interpretation of the agreement was not based on any specific contractual language, nor has any contractual language supporting his interpretation been brought to our attention." "Rather, his interpretation ... appears to be grounded exclusively in a misreading of labor law cases and statutes."
My view: The court has conflated two separate questions. First, is the question of whether the case should be sent to an arbitrator, and the answer is clearly yes. Second, is whether to affirm the arbitrator's decision that the case was non-arbitrable. At that point, the court seems confused, first saying that the arbitrator reasoned that there was no contractual basis to arbitrate, and then dumping on the arbitrator for not citing contractual language to support that conclusion.
But let's assume, as the court says, that the arbitrator exceeded his powers in the manner he concluded that the grievance was non-arbitrable. That should not transfer to the court the power to decide that the grievance was arbitrable. Ultimately, it should be up to an arbitrator to make that decision. The proper thing for the court to do is to remand to the arbitrator to re-decide the question of arbitrability.
Otherwise, the courts are doing arbitrators' work. If you have been following this blog, you know I think that is a bad thing.
Posted April 17, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
April 04, 2005
Reinstatement violated public policy
An arbitrator ordered reinstatement of a police officer whom the City discharged for egregious and outrageous misconduct toward a civilian followed by filing a knowingly untrue statement and providing a distorted version during an internal investigation. Oh, and let's add that the officer gave phony testimony at the arbitration hearing.
The arbitrator reduced the penalty to a one year suspension on the time-honored ground that the City had meted out penalties short of discharge for similar or more serious conduct.
The trial court and Court of Appeals were satisfied that the arbitrator's award should be confirmed, "albeit with a lack of enthusiasm."
The Massachusetts Supreme Judicial Court vacated the arbitrator's award on the ground that it violated public policy. City of Boston v. Boston Police Assn (Massachusetts 04/04/2005).
The court reasoned that an arbitrator cannot "order a party to engage in an action that offends strong public policy." Sounds like a high threshold, but later the court put it this way: The City must demonstrate that the officer's conduct was such that a penalty less than discharge "would frustrate public policy."
A statute prohibits appointing to a police officer position anyone "convicted of any felony." The fact that the officer was not convicted of a felony was "beside the point" because it is the conduct rather than the conviction that is determinative.
My view: I won't beat up on the arbitrator or the Massachusetts court. It's enough to point out that the parties picked arbitration and picked the arbitrator, and there was no showing that the arbitrator's award required the City to perform any unlawful act.
Posted April 04, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
Arbitrator went outside the contract
Can an arbitrator rely on an employer's rules that are not incorporated into the collective bargaining agreement? Maybe not, in Ohio.
The facts were simple in Cincinnati v. Queen City Lodge (Ohio Ct App 04/01/2005). A police officer lied during a criminal trial, the City discharged him, and he grieved under the collective bargaining agreement. An arbitrator reinstated him and imposed a three day suspension.
The arbitrator's reasoning was simple. The City could discipline or discharge an officer for just cause, and the City had just cause to discipline this officer. The City's Rules Manual provided for a one to three day suspension for a first time violation of the rule prohibiting giving misleading information. Therefore, the arbitrator reduced the penalty to a three day suspension.
The Ohio Court of Appeals concluded (2-1) that the arbitrator's decision did not draw its essence from the collective bargaining agreement, and held that the arbitrator's award should be vacated. This was because the arbitrator relied on a source outside the agreement, and there was no "rational nexus" between the agreement and the award.
My view: This case is a lesson on how an arbitrator should write an opinion. Always make it clear that the reasoning is rooted in the contract. There should be nothing wrong with referring to outside documents such as the employer's rules. But the Ohio court noted that this arbitrator relied entirely on the employer's rules. Why couldn't the judges see the connection between the rules and the contract? Because the arbitrator did not explain the connection.
Posted April 04, 2005 by Ross Runkel, Editor at LawMemo, publisher of Employment Law Memo. Try it.
