An evenly divided Supreme Court upheld a ruling from the Ninth Circuit Court of Appeals ruling supporting the right of public sector unions to collect fair share fees from employees they represent who are not members of the union. Friedrichs v. California Teachers Association. The result leaves intact a near 40 year old precedent in Abood v. Detroit Board of Education. Abood held that the First Amendment only applies to forced contributions to the union’s political activities. Public sector unions are the exclusive representative and are bound by a duty of fair representation to all bargaining unit members without regard to their union membership. Accordingly, the Court in Abood held that non-members should be required to pay their fair share of the costs of negotiating and administering the contract on their behalf.

Conservative antiunion organizations have been trying to get the Court to overturn Abood since it issued in 1977, whittling down it principles by imposing increasing burdens on unions seeking to collect fair share fees from non-members. When Friedrichs was argued on January 11th the Court seemed poised to overrule precedent. The conservative Justices expressed skepticism about virtually all of the major arguments proffered in support of fair share fees. It seemed almost certain that the high court would rule 5-4 that fair share fees are unconstitutional. But with Justice Scalia’s death there were no longer five justices to do so.

The result of the ruling is a victory for unions. But the decision was a one sentence opinion affirming the 9th Circuit “by an equally divided Court.” It does not set precedent at the Supreme Court level. The next appointment to the Court will have considerable power over this critical issue which undoubtedly will be raised again.

The Labor Arbitration Institute have arbitrators discuss hypothetical employment arbitration scenarios and state how he/she would have ruled. These “decisions” by arbitrators can be helpful in assessing how an arbitrator would rule in real world cases. In this scenario, a two-year employee rigged one of the two handles/levers on a press machine so that the machine would go faster and to alleviate some pain in his left arm that was hurting due to carpal tunnel syndrome. All five arbitrators on the panel would have upheld the discharge because the two levers were specifically there for safety reasons, the conduct was intentional, there was no prior request for an accommodation for carpel tunnel, he had prior discipline for other types of non-safety incidents, and the fact that the Company’s investigation may not have been 100% thorough was adequate enough.

What we can learn from the conclusions these arbitrators came to is that prior disciplines, even if they are for dissimilar conduct, can be used against you as progressive discipline, especially if it’s within a short span of time, and that relying on incomplete training or investigation as a basis for turning over a discipline/discharge comes up short in the face of other factors such as the ones discussed above.

Below is the complete discussion as issued by the Labor Arbitration Institute.

Conference Reporter – Labor Arbitration Institute

Safety Violation with a Poor Record

At this month’s program in Miami, the arbitrators on the panel discussed a case of a 2-year employee. He was a press operator. He had two years with the company, but had bid into a press operator position only 4 days earlier.

The press has two handles or levers. The reason for this is to ensure that the operator does not have either hand near the pinch point. In other words, the operator must use both hands at the same time in order for the press to work.

Four days into the job, the employee is discovered to have tied up the left-hand lever to a post. This allowed him to operate the press with just the right-hand lever. The supervisor asked him why he did this, and he gave two reasons. 1) he could work faster and thus, earn more incentive pay (true); and 2) his left arm was hurting due to carpal tunnel syndrome.

He was discharged for reasons which the panelists address below.

Decision

All five arbitrators on the panel would have upheld the discharge. What is interesting about this is how strongly they all felt, that:

1. There may not be a rule which specifically covers two levers, but the employer can rely upon its general safety rules.
The company went to the expense of providing two levers. These safety devices are there for a reason. The purpose of the device is to keep the employee out of harm’s way. The employee is jeopardizing his own safety.

2. It was intentional.
The union cited two prior cases in which employees were given a written warning. But in each case, the employees committed a one-time mistake. Both were the result of not thinking, and it doesn’t appear that either employee acted deliberately. On the other hand, the grievant did this for 3 days and it was intentional. In fact, is he cheating the other employees by gaining incentive pay that they cannot obtain the same way?

3. He didn’t ask for an accommodation.
He could have asked for an accommodation based on the carpal tunnel, but he didn’t.

4. He had a poor record.
He is a two-year employee, and he has this record: written warning for graphic statements to a supervisor and two written warnings & a 3-day suspension for attendance violations.

5. The Company investigation was adequate enough.
The union argued that the investigation should have included an interview of the trainer. Then, management would have learned that his training lasted only 15 minutes. The company counter-argued that the co-worker who trained him was only a few feet away on each of the 4 days that he worked, and thus available for any retraining. All of the arbitrators on the panel felt that an investigation does not have to be 100 percent. A lesser investigation will not nullify the discipline when the employer’s reasons for the discharge (#1-#4) are as strong as they are here.

Employees who receive workers’ compensation benefits may not sue their employers in tort.  G.L. c. 152 Sec. 24.  Employees may, however, file claims against third parties.  G.L. c. 152 Sec. 15.  If the employee recovers damages from the third party, the employer is entitled to a statutory lien on the recovery, unless the recovery is greater than the amount the insurer paid the employee.  In that case, the employee may keep the “excess,” which is defined as “the amount by which the gross sum received in payment for the injury exceeds the compensation paid under this chapter.”

In DiCarlo v. Suffolk Construction Co., decided by the SJC on Friday, an employer who had paid out workers’ compensation benefits to an injured employee was seeking a portion of the “pain and suffering” damages the employee received from a subcontractor whom the employee had sued in tort.  The damages arose from a settlement agreement.  The employee agreed to accept less money from the third party than he had received in total from the employer in workers’ compensation benefits, but the agreement specifically allocated a percentage of the payout to pain and suffering.  The employer argued that pain and suffering damages should be included in its lien.  The employer took the position that the “gross sum received in payment for the injury” included pain and suffering.

However, the SJC allowed the settlement agreement to carve out pain and suffering damages for the benefit of the employee.  The court held that the workers’ compensation statute does not allow an employer to be “reimbursed” for pain and suffering damages, because an employee cannot recover for pain and suffering under the workers’ compensation statute – only for wages.  The court clarified that an insurer “cannot be reimbursed for something that it did not pay.”  The decision can be read here.

Late last year the Oregon Court of Appeals upheld the reinstatement of a Portland Police Officer, rejecting the city’s attempt to negate an arbitrator’s order under the guise of “public policy.” The case Portland Police Ass’n v. City of Portland arose out of the 2010 shooting death of a man named Aaron Campbell by an Officer Frashour. While responding to a disturbance at Mr. Campbell’s house, Officer Frashour fatally wounded the man, mistakenly believing the decedent was reaching for a gun in his waistband.

Portland’s police chief fired the officer in response to the incident after determining Officer Frashour had violated the city’s physical and deadly force policies. The Portland Police Association grieved the termination and, after a 16 day hearing, an arbitrator found Officer Frashour’s actions to be reasonable and ordered his reinstatement to the force. Despite this exoneration, the city refused to reinstate the officer. At the union’s appeal to the Employment Relations Board, the City contended that the award was unenforceable under ORS 243.706(1), which reads, in relevant parts; “as a condition of enforceability, any arbitration award that orders the reinstatement of a public employee . . . shall comply with public policy requirements . . . including but not limited to policies respecting . . . unjustified and egregious use of physical or deadly force.” In short, it was Portland’s position that the arbitrator did not have the authority to reinstate an officer who had violated the city’s stated public policy goal of preventing the unnecessary use of force by police.

The Board rejected the city’s position, finding that, because the arbitrator determined Officer Frashour was not guilty of the conduct for which he was disciplined, the statute was inapplicable. The Court of Appeals agreed with the Board’s determination that the statute only applies when an arbitrator finds an officer violated the city’s use of force policy, but nonetheless elects to alter the employer’s disciplinary decision. Essentially, because the city agreed to resolve certain labor disputes through binding arbitration, it could not overturn the arbitrator’s findings of fact regarding just cause simply because it disagreed with the arbitrator. Ultimately, the Court of Appeals’ decision supports the sanctity of arbitrator’s findings and emphasizes to public employers that they cannot play judge, jury, and executioner when it comes to employee discipline.

The full text of the case can be read here: http://cases.justia.com/oregon/court-of-appeals/2015-a152657.pdf?ts=1451492107

As a former SWAT team member, this police officer approached the small white package left on his police vehicle cautiously. It turned out to be a sweet “survival kit” of candies left by an anonymous Secret Santa thanking law enforcement officers like him for his service. For example, Lifesavers to “remind you of the many times you have been one.” A nice gesture of appreciation to those who keep us and our families safe.

The full article can be found here: http://patch.com/california/sanjuancapistrano/anonymous-thank-you-makes-deputys-day