Excerpts from recent LAI conferences in New York, Boston and Minneapolis:

Negotiated Rule on Workplace Threats

In Boston, the faculty was unanimous that a workplace rule which management and labor have sat down and negotiated has the legal effect of a collective bargaining agreement.  The parties hire the arbitrator to enforce the collective bargaining agreement, and this includes side-agreements.

At the conference, the discussion among the arbitrators on the faculty started this way.  The employer and union sign off on a zero-tolerance policy on workplace threats.  The policy clearly states that bringing a gun onto company property results in automatic discharge.  A few years down the road, and some employees have been discharged, and no grievances were filed.  But these were easy cases.

Then, a different case comes along.  The wife puts the gun in the car, so she can go hunting later and doesn't tell her husband.  Or the grievant drives his son's car to work.  Or the grievant helps his uncle move into a nursing home, which wouldn't accept the unloaded rifle, so the grievant leaves it in his trunk.

And in this one case, the grievant drove to the company, but parked outside the company lot because he was not going to work;  he was going to a physical exam and wanted to walk to the company doctor's office on company property.  When he goes back to retrieve some papers, he takes up the security officer's recommendation that he should save some time and drive back through the gate.  When he returns through the gate later in the day, it just happens that there is a random search.  Inside his vehicle is a loaded handgun, which is registered and he is licensed to carry.  He totally forgot that the weapon was in his glove compartment.

In the actual case, the grievant had 32 years of experience and no discipline record.  He lost his job and the arbitrator upheld the discharge.

The debate among the Boston faculty was whether the rule needed to address the issue of intent.  To violate the rule, does the grievant have to intend to bring a weapon onto company property?  In this case, the grievant's act looked to be unintentional.

For three of the arbitrators on the panel, the issue of intent was irrelevant.  In their view, when the parties decided on automatic discharge, they were deciding that proof of intent was not needed; hence, the word "automatic." The parties wanted to shift the responsibility to the employee.

But one arbitrator on the panel ruled that it would depend on how the zero-tolerance policy was worded.  He would uphold the discharge if the policy said:  If you bring a weapon onto company property, whether intentionally or unintentionally, the penalty is automatic discharge.  But he would reduce the discharge, if the policy did not specifically refer to unintentional acts.

Finally, bargaining notes or testimony that the parties actually discussed accidental or unintentional violations would influence his decision.

Public Policy Arguments

In New York, the faculty discussed the public policy arguments, usually made by employers to arbitrators.  The argument is borrowed from court decisions, which hold that, based on legislation, prohibitions against sexual harassment, drug use, racial discrimination, etc. have risen to the level of a public policy that should be universally applied.

In an arbitration case, the public policy arguments are valid, but there are two cautions, which the New York arbitrators pointed out:

First, one reason you are in arbitration is to avoid the courts.  Discipline cases arise under the collective bargaining agreement and the employer's rules.  Legislators and judges are not involved in this process.

If you represent a public employer or public employee, the collective bargaining agreement and the employer's rules are still paramount.  Moreover, the arbitrator's authority stems from the collective bargaining agreement, so many arbitrators feel that their decision needs to be consistent (or not in conflict) with public policy, but not be the source or basis for their decision.

Secondly, making a public policy argument suggests that you are ready to argue every element.  For example, in a sexual harassment case, you need to be ready to argue the significance of Title VII and the court decisions under Title VII.  If you represent management and an appellate court has already ruled there was no sexual harassment in a case factually similar to yours, you give the arbitrator a reason to rule against you, and vice versa for the union.

Third, there are multiple public policies.  There is a public policy, as referenced in statute and judicial decisions, that parties submit their disputes to final and binding arbitration.  There is a public policy under some statutes that rehabilitation be available to drug-users.

Finally, it is tempting to management to argue that public policy must be considered.  But this may be just another way of saying that the grievant's actions have jeopardized public safety or have adversely affected the employer's financial or legal exposure.  These latter arguments are more persuasive to arbitrator.

Categories of Cases Which Usually Settle

At the Minneapolis conference, the faculty discussed categories of cases that go to arbitration, but should have settled.

Here are 3 categories to look out for:

1.  The dispute involves contract language and a health insurance policy, and the parties cannot agree on whether the medical procedure or benefit claim is covered.  In one arbitrator's experience, 99% of these cases settle either before the hearing or after opening statements.  They settle because they are difficult and can have far-reaching implications.

2.  The grievant is a teacher, police officer, nurse, etc. where there is an expectation of a higher duty or professional service.  And the grievant has really messed up.  The activity was on or off-duty, but the grievant's actions are beyond the pale.  Yet the union takes the case to arbitration because the grievant has a good record and long service, there is a thread of a disparate treatment claim, or some other defense.  One overlooked settlement is resignation.  The grievant leaves without a discharge on his record and can find another job.

3. Evidence available at the time of the discipline/discharge is no longer available.  This seems obvious, but the arbitrators noted that advocates become so attached to their case that it always seems to be a winner, even when circumstances change.

Upcoming Conferences:

Philadelphia: November 9, 2007
Cleveland: November 15, 2007
Oakland: January 9, 2008
Los Angeles: January 17, 2008
Miami: February 10-12, 2008
Seattle: April 10, 2008
Chicago: May 1-2, 2008
Las Vegas: June 23-24, 2008

For more information, visit our website: www.laborarb.com