Working Together

Lawyers like to believe that arbitration decisions concerning employee discipline should be made in accordance with the law and the applicable collective bargaining agreement, not solely by an arbitrator’s personal notions of fairness.  In a decision issued June 5, 2014, a Superior Court judge reminded us that while arbitration rulings usually are difficult to overturn, arbitrators do not have free reign to ignore contractual limits on their authority.

Town of Greenwich v. Greenwich Municipal Employees Association concerned an accounting clerk in the Town’s Fire Department with a lengthy tenure and generally laudatory reviews.  However, the Fire Department eventually discovered that this once-model employee had sent and responded to 9,600 personal/non-job related e-mails in the previous 18 month period.  In addition to this clear misuse of “company time,” the content of her e-mails included the release of confidential information, admissions of her “snooping” in the office, and multiple demeaning, unprofessional, profane, and/or derogatory comments about her supervisors and fellow employees.  All of this conduct violated the Town’s acceptable computer use policy.  The Town terminated the clerk’s employment.

The clerk’s union grieved the termination.  The issue for the arbitrators was whether the termination violated the collective bargaining agreement [“CBA”], since only CBA violations were grievable.  Here, there was no violation of the CBA, because there was no “just cause” provision in the CBA.  Nonetheless, the majority of the arbitration panel overturned the termination because 1) they felt that the termination was “excessive disciplinary action and unfair” and the employee was not provided with progressive discipline, and 2) the employee was subject to “disparate treatment” in that a fire marshal (who was not in the same union as the clerk) who received some of these e-mails had not yet been disciplined. The arbitrators ordered reinstatement, but without back pay.

The Town filed an application to vacate the arbitration award with the Superior Court.  The Court ruled for the Town and vacated the award.  While courts usually defer to arbitration awards, the award in this case still had to conform to the CBA, and the arbitrators were not free to ignore contractual limits on their authority.  Here, the arbitrators ignored the CBA-imposed limits and based their award on a policy that was not a part of the CBA.  Worse yet, the arbitrators appeared to be determining whether they felt the termination was “justified” or was “fair.”  As such, the Court noted that the arbitrators “strayed a long way” from their charge to determine simply whether  the termination violated the CBA, and thus exceeded their powers. The Court ordered  a rehearing by the arbitrators, who hopefully will adhere to the limits on their authority.  Stay tuned.

WHAT DID WE LEARN AND WHAT CAN WE DO?  This case highlights why it is important to have collective bargaining agreements that 1) restrict grievance arbitrations to alleged CBA violations, and 2) contain language explicitly prohibiting arbitrators from ignoring or amending the CBA.  As an aside, the Court’s decision tacitly reminds us of the danger of having a separate progressive discipline policy in the unionized (or any) workplace.  While the Court properly ruled that the policy here was not incorporated into (and instead was superseded by) the CBA, an employer should not take this risk (especially where there is no “just cause” provision in its CBA).  Finally, the Court’s decision does show that sometimes, it may be worth seeking judicial relief from the occasional far-afield arbitration ruling.