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Max Rieker

The Case In Favor Of Shift Differential At The Bargaining Table

Late Fall and early Winter are “bargaining season” for most public sector employees.  The reality is that a wise advocate (for either the employer or the union) will approach bargaining, not only through how his client sees it, but also through the prism of how a factfinder or a conciliator would analyze and reasonably determine the parties’ open issues.  An even wiser advocate will recognize that there are fundamentally two basic types of neutrals.


Neutrals are human beings and like judges, juries, or sporting event officials, they have their own particular preconceived notions, biases, and inclinations.  One can drive himself to lunacy trying to “predict” how a particular neutral will rule on a particular issue based on the neutral’s past rulings.  Rather than engaging in such a frustrating exercise, it is far more beneficial to recognize that some neutrals are process-based neutrals and others are truly fact-based neutrals.

In this author’s opinion, process-based neutrals are primarily focused the process of the statutory impasse resolution procedure to obtain a contractual result that the parties can ultimately live with.  These neutrals generally seek to drive the parties toward middle ground and focus on the concept of “acceptability” by the parties.  During the factfinding process, the notion of acceptability is important for eventual purposes of ratifying the factfinding report; but the concept of acceptability is also important in the context of conciliation.  Once a conciliator issues an award, the parties must live with that result.  This could work out splendidly for one or both parties, or could result in significant undesirable strife in the labor-management relationship, depending on the nature of the issue and the effect of the conciliation result.

Fact-based neutrals tend to be less focused on acceptability and the results of unacceptability.  They are generally more concerned with strong objective rationale which is based on quantifiable or thoughtfully studied evidence in order to reach the correct result, whatever that may be.  As such, there is a greater likelihood for one party or another to “win big” or “lose big” with a fact-focused neutral, based on what the relevant evidence actually reveals.

Neither approach to the factfinding and conciliation process is entirely right or entirely wrong.  One suspects that most neutrals would probably claim that they are concerned with both the process to achieve acceptability and strong factual rationale, but the reality is that each neutral has his own traits and it is important to understand what tends to motivate the neutral’s decision-making process.


Shift differential is an item in law enforcement bargaining that serves three potential purposes, depending on how one looks at the issue.  First, it is a vehicle for additional compensation.  Second, it is a way to monetarily incentivize an employee to seek a less desirable shift where there is a clear need for that work to be performed.  Third, it is arguably a factually-justified attempt to make employees whole for the physical and lifestyle sacrifices that employees make when working night shifts.

The first two rationales may resonate with a process-based neutral in order to achieve overall acceptability by the parties.  This is a way to achieve additional economic influx to a collective bargaining agreement in order to garner ratification from the union.  It may end up being a desirable method of distributing the ultimate monetary value of a contract from the employer’s perspective because an employer may not be subjected to eventual liability for shift differential with others of the employer’s bargaining units, which are not 24-hour per day operations.  We refer to this as immunizing the employer from “internal comparability” problems.

The first and second rationales may not achieve union victory with a fact-based neutral, but the third rationale might.  In order to put together a convincing case in favor of achieving a shift differential with a fact-based neutral, one must present strong evidence, not merely the argument of “the next city over gets it, so we should too.”  That is simply not a good argument for a neutral who is focused on the facts and seeking persuasive evidence.

So, here are the facts:  a minority of law enforcement agencies in Ohio have some sort of shift differential system.  In Cuyahoga County, the state’s most populous county, only 42% of police departments have a shift differential.  For some reason grounded in decades of bargaining history, there seems to be even less of a likelihood for shift differential among county sheriff’s offices.

Based on the legitimate facts at hand, the number of police officers, sheriff’s deputies, corrections officers, and dispatchers who have shift differential should increase.


For our purposes, “work” is that which one does for the benefit of an employer which he or she would otherwise not do but for the worker being adequately compensated.  This begs the question, what is adequate compensation for working abnormal hours and how does one factually justify that compensation?

The human circadian rhythm is clearly designed for activity during the day and sleep at night.  Police work, corrections work, and dispatch work, do not neatly fit into those biological requirements.  That work must be performed to insure order in society, but at what physiological cost to the worker?

A study released in November of 2014 in the scholarly journal Occupational and Environmental Medicine suggests that years of working night shifts prematurely ages the human brain.  The study was conducted by a team of researchers from the University of Swansea in Wales and the University of Toulouse in France.  Approximately 3,200 participants were tracked over ten years.  They were periodically assessed based on their memory, speed of thought, and wider cognitive abilities.

The study revealed that, while the human brain naturally declines as we age, working “antisocial shifts” accelerates this process.  Those who worked more than 10 years of antisocial shift work had the same cognitive results as someone who was 6.5 years older.  For example, someone who was 50 years old at the conclusion of the study and had worked more than 10 years of night shift work, had the cognitive abilities of someone who was actually 56.5 years old.

Dr. Philip Tucker, one of the researchers from the University of Swansea said, “It was quite a substantial decline in brain function, it is likely that when people [are] trying to undertake complex cognitive tasks…they might make more mistakes and slip-ups, maybe one in 100 makes a mistake with a very large consequence, but it’s hard to say how big a difference it would make in day-to-day life.”[1]

The published conclusion of the study is that “Shift work chronically impairs cognition, with potentially important safety consequences not only for the individual concerned, but also for society.”[2] There is some evidence that the negative effects of working night shifts can be reversed, but recovery of cognitive function only presents itself at least 5 years after one has ceased regular antisocial shift work.


Based on these findings and conclusions in this published study, one can and should make the argument in favor of instituting a shift differential where one does not currently exist.  It is scientifically proven that working abnormal shifts negatively impacts an employee’s cognitive abilities at a substantially greater rate than his counterpart performing the same work during the day.

This argument should heavily influence a fact-based neutral.  To such a neutral, monetary gain should be implemented in order to help offset the marked difference in working conditions which result in long-term impact on night shift workers and should help even the effective disparity between night workers and their colleagues.

All who have been deeply involved with the process know that creating a contract is akin to making sausage; but sometimes there are proposals that are advanced and adopted simply because they are the right thing to do.  A shift differential may very well be one of those contractual components.

[1] Gallagher, James.  BBC News - Health, Shift work dulls your brain, (Nov. 3. 2014).

[2] Marquie, Jean-Claude; Tucker, Philip; Folkard, Simon; Gentil, Catherine; Ansiau, David.  Occupational and Environmental Medicine.  Chronic Effects of Shift Work on Cognition:  Findings From the VISAT Longitudinal Study, (Published Nov. 3, 2014).



Max Rieker, Esq.

On April 29, 2014, the United States Supreme Court heard oral arguments in two cases involving warrantless searches of arrestees’ cellular phones.  For the most part, Fourth Amendment review cases by the Supreme Court do not get much attention.  Members of news media are far more interested in hot-button social issues than the minutiae of search and seizure litigation.  However, the cases of United States. v. Wurie (13-212) and Riley v. California (13-132) are of such import that every cell-phone carrying American should take notice of their outcome.  Law enforcement officers should pay particular attention as they will be bound by these Supreme Court decisions which are expected to be released in June.

When most practicing lawyers and current law enforcement professionals were trained, the warrantless search and seizure analyses were largely centered around the concepts of “stop-and-frisk,” “vehicle inventory searches,” the “Plain View Doctrine,” consent searches, the “emergency circumstance exception,” “searches incident to a lawful arrest,” and the like.  Since that time, technology has advanced both in the area of potential law enforcement capabilities and in personal electronic device capability, both of which have greatly complicated the warrantless search equation for all involved.

For instance the decision in Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001), expressly prohibited law enforcement from using thermal imaging technology aimed at a private home from a public street without a lawful warrant to do so.  In Kyllo, the Department of the Interior used a thermal imaging device to detect that a suspect was using high-intensity heat lamps to perpetuate his marijuana growing operation.  Justice Scalia delivered the holding of the split Court,

Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.[1]

When Kyllo was released, 53% of American adults owned a cellular phone.[2] These devices tended to be very basic in nature.[3] In 2014, 90% of all American adults own a cellular phone.[4] Of these phones, 58% of them are sophisticated “smartphones” which are essentially hand-held computer.[5] These devices have the ability to receive, store, and transmit fantastic amounts of data.  The public uses these devices to advance any number of business endeavors, including crime.

The basic question pending before the Court is whether the government must obtain a warrant to search data on the cell phone of a person under arrest.  This is a question which must balance the legitimate concerns of law enforcement against the private interest of one’s reasonable expectation of privacy.  Where does one interest end and the other interest begin with respect to the information contained on an arrestee’s cell phone?  Should a cell phone, as a receptacle of information, be treated any differently than a common wallet, purse, brief case, or clothing pocket; or because of its nature as device which often interacts with every aspect of a person’s life, are its contents off-limits to a warrantless search?  The Court must also be cognizant that its decision on cell phones will carry far-reaching implications with warrantless searches of other electronic devices.

In the case of Riley v. California, college student David Riley was arrested in San Diego on a traffic violation.[6] He was driving with an expired registration and with a suspended license.  During the vehicle inventory search, he was found to have hidden loaded firearms under the hood of his car.  Arresting officers searched the contents of his smartphone (pictures, videos, text messages, contacts, etc.).  This data led to the realization that he was part of an organized crime syndicate and it was discovered that Riley was connected with a prior drive-by shooting.  He was convicted in state court on various offenses and sentenced to 15 years imprisonment.

In the companion case, Brima Wurie was arrested in Boston for selling crack cocaine.[7] When questioned, he gave officers a false home address.  Through searching Wurie’s flip phone, officers were able to determine his correct home address and were able to obtain a search warrant.  When his home was searched, more drugs were discovered in addition to weapons and ammunition.  Wurie was convicted in federal court and sentenced to 22 years imprisonment.

In neither case was a warrant sought to search the arrestee’s phone.  Riley’s conviction was upheld.  Wurie’s was overturned in a divided decision by a federal Court of Appeals on the basis of the cell phone search.  The Supreme Court accepted both cases to resolve the conflicting judicial interpretations of the Fourth Amendment.

During oral argument, the justices seemed to be divided on how to reconcile the primary issues at play.  Responding to Riley’s attorney who argued in favor of limiting police authority, Justice Kennedy pointed out that criminals too “are more dangerous, more sophisticated, more elusive with cell phone” than they previously have been.[8] Conversely, Justice Scalia opined that the idea of allowing law enforcement officers to search a cell phone without a warrant after a seat belt violation is “absurd.”[9]

As a practical matter, what observers of this important issue wonder is whether the Court will create a bright-line rule that cell phone content is off-limits to warrantless search; whether the Court will create a bright-line rule that says the ability for a law enforcement officer to search cell phone content is just as permissive as the ability to search the contents of an arrestee’s wallet; or whether the Court will craft a rule somewhere between these two extremes.[10]

Some justices appear to favor a complete prohibition of such phone searches.  Some seem to favor permitting nearly unfettered access to law enforcement searches.  In light of his questions during oral arguments, it appears that Chief Justice Roberts would be inclined to create a new rule which would permit a warrantless search incident to arrest if the potential content of the device is somehow relevant to the purpose of the original arrest.   It will be interesting to see whether he can persuade a majority of his colleagues toward that position.  If Chief Justice Roberts’ apparent inclination comes to pass, it may be the fundamentally correct Fourth Amendment analysis, but would undoubtedly complicate an already complex issue.

The authors of the Fourth Amendment could not have possibly contemplated the concept of an iPhone when drafting the Bill of Rights, but they certainly understood expectations of personal privacy and the need for government to thwart crime.  The centuries-old debate moves forward into a new uncharted era.

[1] Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001)

[2] Pew Research Center, The Web at 25 in the U.S. (Released February 27, 2014), citing Internet Project Surveys, 2000-2014 (http://www.pewinternet.org/files/2014/02/PIP_25th-anniversary-of-the-Web_022714_pdf.pdf)

[3] The first basic Blackberry model was released in 1999, but did not achieve wide-spread circulation for many years.  The first iPhone was released in 2007.

[4] Id.

[5] Id.

[6] Riley v. California, 134 S. Ct. 999, 187 L. Ed. 2d 847 (U.S. 2014).

[7] United States v. Wurie, 728 F.3d I (1st Cir. 2013).

[8] http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-132_h315.pdf at 26.  Another issue to consider is law enforcement’s ability to retain, record, or otherwise preserve whatever evidence may be contained on a smartphone.  Today, phones can be remotely locked, wiped clean of content, or otherwise rendered useless.  Some savvy law enforcement agencies have taken to using Faraday Bags, which prohibit remote access to the electronic device placed inside the protective bag.  Many Faraday Bags have windows so that content may be visually accessed without compromising the security of the device.

[9] Id at 43.

[10] Interestingly, the California legislature passed a bill (Senate Bill 914) in 2011 which would have required police to obtain a search warrant before searching content of any portable electronic device.  Governor Jerry Brown vetoed the bill and deferred to the courts as the best avenue to resolve case-specific issues related to search and seizure.


Contract Interpretation: What Do The Words Of A Contract Mean And How Do We Determine That Meaning?

Contracts govern many relationships in our lives.  Our relationships with banks, with businesses, with cellular phone service providers, with utility companies, and with each other are often based on contracts.  We rely on the sanctity of contract performance to insure the good order of society.  The Roman Law maxim pacta sunt servanda (agreements are to be kept) reflects this characteristic in human nature.  The concept of an enforceable contractual relationship is particularly important for those public employees whose employment relationship is governed by a labor contract.


Before delving into the intricacies of interpreting labor contracts, one should understand what a contract is, as a legal term of art.  On its most basic level, a contract is formed when:

1)      One party to that potential contract makes an offer;

2)      The other party accepts that offer; and

3)      There exists “consideration,” or a bargained for exchange of value related to the underlying offer and acceptance.[1] 

One court deftly described the peculiar nature of what a contract actually is:

Unfortunately, contracts, like most of the basic terms constituting the intellectual tools of law, is conventionally defined in a circular fashion.  By the most common definition, a contract is a promise or set of promises for the breach of which the law gives a remedy or the performance of which the law recognizes as a duty.  This amounts to saying that a contract is a legally enforceable promise.  But a promise is legally enforceable only if it is a contract.  Thus nothing less than the whole body of applicable precedents suffices to define the term ‘contract.’[2]


A collective labor contract or collective bargaining agreement (“CBA”) is a contract vehicle, born out of statute, which provides an individual with greater bargaining power than if he or she were to bargain with the employer alone.  Since these CBA’s govern the employment relationship between an employer and perhaps dozens or hundreds of its employees, it is important to take great care in making the final contract product as clear and unambiguous as possible.

However, we all know that, as much as the parties may strive to eliminate ambiguity, there is always more than one way to read a given section in a CBA.  “The language of mathematics is precise.  The English language is not.”[3] It is entirely possible that three experienced, respected labor arbitrators could read the same CBA section and render three different results.

So how does one know what the correct, legally enforceable interpretation of a particular CBA provision is?  Unfortunately, there is no mathematically precise way of knowing.  Disputes often occur because the parties to a CBA have legitimate differences of interpretation.  While one cannot predict with certainty the outcome of a dispute of contract interpretation prior to litigation, it is helpful to understand some concepts and theories which arbitrators use as factors in their decision making process.


The objective theory of contract interpretation holds that the meaning of an ambiguous contract term is that which would be attached by a reasonably intelligent person who is acquainted with the operative usages, and knows the circumstances prior to and contemporaneous with the making of the contract.

The legendary judge and judicial philosopher Learned Hand captured the objective theory of contract interpretation in Hotchkiss v. National City Bank, 200 F. 287 (S.D.N.Y. 1911):

A contract has, strictly speaking, nothing to do with the personal, or individual, intent of the parties.  A contract is an obligation attached by the mere force of law to certain acts of the parties, usually words, which ordinarily accompany and represent a known intent.

In other words, under the objective theory, a judge or arbitrator would essentially insert the intent of the parties based on the usual and customary uses of the words contained within the contract itself.  The parties’ own meaning and intent is not relevant; rather, the words are enforced in accordance with the way in which an ordinary reasonable person would understand and enforce them.


The American Law Institute’s influential legal treatise Restatement (Second) of Contracts offers us further guidance as to how contract language is to be read and interpreted in context.

§ 202.         Rules in Aid of Interpretation

(1)   Words and other conduct are interpreted in the light of all the circumstances, and if the principal purpose of the parties is ascertainable it is given great weight.

(2)   A writing is interpreted as a whole, and all writings that are part of the same transaction are interpreted together.[4]

Essentially, adherents to this Restatement view of contract interpretation would read a contract as a whole.  Conflicting provisions within the same document must be reconciled and respective contract provisions must be weighed appropriately.

For example, a CBA has one provision which requires shift bidding by seniority.  That same CBA has another provision which infers that it is a management right to determine when, or even if, that shift bidding process ever takes place.  Under the Restatement view, those incompatible provisions must be reconciled in light of the totality of the circumstances.  The union’s position would be that it is incongruous to believe that the parties intended to include shift bidding by seniority language in the CBA, yet allowed for a mechanism which would prevent the implementation of that shift bidding process.


In the realm of labor arbitration, parties often raise or attempt to raise evidence as to the intent of the parties when litigating a contract interpretation case.  This extrinsic evidence is that which is not expressly contained within the “four corners” of the CBA, but which may help a neutral arbitrator understand why the CBA says what it says.

Parties may wish to cite the bargaining history of the parties as evidence.  In such an instance, first-hand participants in the bargaining process would be necessary witnesses to advance a party’s interpretation of the bargaining process and that which was born of it.  The contemporaneous notes or minutes of a past bargaining session might also prove valuable.  Keep in mind that the parties may have discussed the disputed language at length, but made a conscious decision not to alter it in an effort to secure agreement on a total agreement.  Often, sources of annoyance and discord between the parties will ultimately be glossed over at the bargaining table in favor of dealing with the greater issues of compensation and health insurance.

A party may also argue that a past practice controls a situation.  Past practice is also a legal term of art.  In order to be considered an enforceable past practice, “a practice must be perfectly clear and unequivocal, consistently followed with frequent repetition over a long period of time so that it is inferable that both parties had accepted the practice as part of their collective bargaining agreement.”[5] It may very well be that, by virtue of a clearly-established past practice, the parties themselves understood a contract provision in a certain way.  Thus, an arbitrator should enforce that long-held understanding.

Ultimately, as the old saying goes, there is more than one way to skin a cat.  There is more than one way to interpret a contract.  The best way to insure a lack of ambiguity is to be clear and precise during the process of contract formation, if that is possible under the bargaining circumstances.  If you have questions of contract interpretation, the first step is consulting with your OPBA representative to help assess the situation.

[1] Restatement (Second) of Contracts (1)  To constitute consideration, a performance or a return promise must be bargained for.  (2)  A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise.  (3)  The performance may consist of (a) an act other than a promise, (b) a forebearance, or (c) the creation, modification, or destruction of a legal relation.

[2] Loevinger, J. in Baeh v. Penn-O-Tex Oil Corporation, 258 Minn. 533, 537-39, 104 N.W.2d 661, 664-66 (1960).

[3] Elkouri & Elkouri, “How Arbitration Works,” 6th ed., (Alan Miles Ruben, Editor-In-Chief, 2003) at 441.

[4] Restatement (Second) of Contracts § 202 (1981).

[5] Elkouri, supra, at 608-609.

Last Updated (Saturday, 14 December 2013 17:03)


The Doctrine of Double Jeopordy in Emloyee Discipline Situations

One of the primary functions of the OPBA is to provide representation to members who are facing possible or actual disciplinary action.  Navigating the tangled web of employee discipline can be quite a difficult task.  This is particularly true if the employer either ignores, or as is often the case, does not understand, some of the major legal principles involved in employee discipline.  One of these concepts is the right to not be twice placed in jeopardy for the same employment offense.  Members often feel that they are being penalized more than once for the same set of facts.  Within the confines of labor law, sometimes they are being unjustly penalized more than once and sometimes they are not.


Before analyzing just what this “double jeopardy” idea means, it is important to review some basics of employee discipline.  All, or nearly all, collective bargaining agreements which cover OPBA members contain some sort of language which prohibits disciplinary action without “just cause.”  Just cause is a legal term of art.  One arbitrator explains the term as follows:

It is common to include the right to suspend and discharge for ‘just cause,’ ‘justifiable cause,’ ‘proper cause,’ ‘obvious cause,’ or quite commonly simply for ‘cause.’  There is no significant difference between these various phrases.  These exclude discharge for mere whim or caprice.  They are obviously, intended to include those things for which employees have traditionally been fired.  They include the traditional causes of discharge in the particular trade or industry, the practices which develop in the day-to-day relations of management and labor and most recently they include the decisions of courts and arbitrators.  They represent a growing body of ‘common law’ that may be regarded either as the latest development of the law of ‘master and servant’ or, perhaps, more properly as part of a new body of common law of ‘Management and labor under collective bargaining agreements.’  They constitute the duties owed by employees to management and, in their correlative aspect, are part of the rights of management.  They include such duties as honesty, punctuality, sobriety, or, conversely, the right to discharge for theft, repeated absence or lateness, destruction of company property, brawling and the like.  Where they are not expressed in posted rules, they may very well be implied, provided they are applied in a uniform, non-discriminatory manner.[1]

This arbitrator’s last sentence, translated into modern terms, means that the ideas of progressive discipline and the prohibition against disparate treatment in meting out disciplinary actions are actually included into the arbitral theory of “just cause.”  While the words “progressive discipline” and “disparate treatment” may never appear in the four corners of a collective bargaining agreement, those requirements are implicit in the contractual requirement of just cause.  These are concepts of fairness and reasonableness under a particular set of circumstances.


As law enforcement personnel, the OPBA’s membership is familiar with the criminal law prohibition against “double jeopardy.”  The United States Constitution states, “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”[2] Likewise, there is a longstanding labor law prohibition against placing an employee twice in jeopardy for the same employment offense.

Jeopardy attaches in a disciplinary setting when:

(1)   The employer imposes discipline for a given offense;

(2)   that discipline is either accepted by the employee or the original penalty is not accepted by the employee; AND

(3)   the discipline is imposed with the understanding by the parties that it is a final disciplinary sanction.

Once these elements are met, the employer is prohibited from thereafter imposing an increased or additional punishment for the subject offense.  The double jeopardy doctrine prohibits employers from attempting to impose multiple punishments for what is essentially a single act or set of acts.  For example, one arbitrator held that the double jeopardy doctrine applied where the employer suspended an employee for 10 days while criminal charges were pending against him and then, when he was convicted, sought to discharge him.[3]

The arbitral concept of “double jeopardy” has been explained by one arbitrator thusly:

The key to this arbitral [double jeopardy] doctrine is not the Constitution but rather fundamental fairness, as guaranteed by the contractual requirement of ‘just cause’ for discipline.  Thus, when an employee has suffered a suspension for an offense it would be unfair…to fire him before he has committed a second offense.[4]

Just as the requirements of progressive discipline and lack of disparate treatment are read into the just cause contractual requirement, so is the prohibition against double jeopardy.  Once an employee has been disciplined and the parties understand that the employer’s action is the final disciplinary sanction, then the employee must be thereafter insulated from disciplinary action solely related to the offending act or acts.

Importantly, double jeopardy does not occur when an employer suspends an employee while conducting an investigation that ultimately leads to the employee’s discharge.[5] Where an employer “suspends the employee, conducts its investigation, imposes what appears to be a ‘final’ punishment, and then imposes additional punishment, double jeopardy exists.  Likewise, an employer cannot issue a disciplinary ‘warning’ and later, after deciding more serious punishment would have been preferable (because, for example, the employer fears a third party’s lawsuit related to the employee’s misconduct), impose a harsher punishment.”[6]

Double jeopardy does not trigger when the discipline is imposed with the understanding that it may not be final.  For example, an employee is not being subjected to jeopardy twice when he is notified via memorandum that further punishment may be meted out for the subject offense.  Additionally, “an employee who was terminated for failing to pass a drug screen and then, after being reinstated under a settlement agreement, was bypassed for promotion for the same reason was not subjected to double jeopardy.”[7]


One may ask, is it not double jeopardy where an employee suffers an enhanced penalty for Offense 2 because of prior disciplinary action taken as a result of Offense 1?  The answer is no.  Just as it is entirely proper for a court to take a criminal defendant’s prior criminal record into consideration for purposes of sentencing, it is permissible for an employer or an arbitrator to take an employee’s prior disciplinary record into consideration with respect to the severity of a penalty.

An employer has a legitimate and legal right to consider an employee’s record of performance and any prior rule infractions when it is considering how to handle a pending performance issue or rule infraction.  Prior discipline may certainly be considered in determining pending discipline, but the sanction related to the pending discipline may not be based solely on past violations for which discipline has already been imposed.

Just as an employee who has a long and good record with an employer would insist on raising his or her positive performance and lack of discipline as a mitigating factor, an employer can raise the opposite as an aggravating factor.

If you or another OPBA member ever feels that he or she is being subjected to multiple penalties for the same set of facts or circumstances, please contact your OPBA representative immediately in order to assess whether the employer is or is not complying with its requirements under the law.

[1] Elkouri & Elkouri, How Arbitration Works, 6th Ed., Alan Miles Ruben, Editor-In-Chief, American Bar Association Committee on ADR in Labor & Employment Law (2003), citing Worthington Corp., 24 LA 1, 6-7 (McGoldrick, Sutton & Tribble, 1955).

[2] U.S. Const., Am. V.

[3] Elkouri supra, at 982, citing Transit Mgmt. of Southeast La., 95 LA 74, 80-81 (Allen, Jr., 1990).

[4] Elkouri supra, at 981, citing United Int’l Investigative Serv., 114 LA 620, 626 (Maxwell, 2000), quoting U.S. Postal Serv., 87-2 ARB ¶18490, at 5952 (Nolan, 1987).

[5] Id at 981.

[6] Id.

[7] Id. at 982.

Last Updated (Thursday, 13 June 2013 20:16)


When is a Dispute a Greivance? When is a Grievance Arbitrable?

As students, we all learned about the rights guaranteed by the First Amendment of the United States Constitution.  Everyone remembers the subject matter of the first four rights:  religion, speech, press, and assembly.  The fifth right guaranteed by the Constitution is the oft times forgotten one, to “petition the Government for a redress of grievances.”  As a public sector employee covered by a collective bargaining agreement, your ability to seek “redress of grievances” does not flow from the Federal Constitution, rather it is an animal of contract law which is governed by the laws of the State of Ohio.  However, the concept is the same.  The Founding Fathers implemented the notion of citizens being able to legally check the actions of the Government when it oversteps its prescribed bounds.  Likewise, your collective bargaining agreement grants the ability to check the actions (or inactions) of your employer when it runs afoul of the agreed-upon labor contract.

Assessing “Grievability”

An OPBA member has a dispute with his or her employer.  That member wants to grieve the issue.  That member wants to arbitrate the issue and generally be made whole. This is an understandable and frequent reaction to the day-to-day employment disputes that affect the OPBA membership.  Often, the member has a legitimate argument for why he or she should be entitled to some sort of remedy.  At the very least he wants to have the ability to “petition” for the redress of the alleged grievance.  Sometime, that argument and ability is not so clear cut. Experienced OPBA Directors and representatives know that the first level of inquiry in any dispute with the employer is to determine whether something is actually a grievance.  A grievance is typically defined by the collective bargaining agreement under which the parties operate.  A grievance is essentially a breach of that labor contract.   There is a saying that every act of unfairness in the workplace is not necessarily an unfair labor practice; at least not an unfair labor practice charge that the State Employment Relations Board would be willing to take action upon.  Likewise, every dispute is not necessarily a grievance.  Quite often, a member will go to his OPBA representative alleging that a supervisor has treated him unfairly, or that a supervisor makes snide remarks, or that a supervisor is otherwise offensive.  The problem with many of these types of disputes is that collective bargaining agreements rarely contain any language which would be actionable to address such negative treatment.  Quite simply, it is difficult, if not impossible to succeed in obtaining contract language which would address the personality defects and egotistical tendencies of these supervisors at issue. 

Substantive Challenge to Arbitrability

While we sometimes see grievances alleging violations of the Family and Medical Leave Act or violations of the Fair Labor Standards Act, those allegations may not be grievable because they may not have anything to do with what is contained within the four corners of the particular collective bargaining agreement at issue. In order for a dispute to be substantively arbitrable, the parties (i.e., the employer and the union) must have agreed at some time in the past to arbitrate it through the terms of the collective bargaining agreement.  Binding contractual arbitration exists because the parties have either agreed to its existence or a conciliator has imposed it in some previous conciliation award. In AT&T Technologies v. Communications Workers, the Supreme Court held:
The first principle gleaned from the [Steelworkers] Trilogy [of cases] is that ‘arbitration is a matter of contract and a party cannot be required to submit to arbitrate any dispute which he has not agreed so to submit.’  (citation omitted)  This axiom recognizes the fact that arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration….

Unless the parties, through the existing contract language, agreed to submit a dispute to binding arbitration, there is a chance that it is in fact, not arbitrable.  If certain subject matter is not specifically referred to or dealt with in the labor contract, then the employer may attempt to refuse to arbitrate and could be justified in doing so.

Who Decides What Is Substantively “Arbitrable?”

Generally speaking, it should be the arbitrator who decides what is within the jurisdiction of the arbitration provisions of a collective bargaining agreement.  Unfortunately, some employers take it upon themselves to “determine” that a matter is not arbitrable, thus forcing the union to file a law suit to compel the employer to arbitrate.  As a practical matter, these procedures are particularly prevalent when dealing with employers who are difficult in the first place; i.e., those employers who are offended by the mere concept of having to do business with their employees in a collective manner.
Luckily, substantial amounts of case law exist which place the question of arbitrability squarely in the hands of the arbitrator when there is mention of the subject matter in the collective bargaining agreement.  In Steelworkers v. American Manufacturing Co., the U.S. Supreme Court stated:

The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator.  It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract.  Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator.  In these circumstances the moving party should not be deprived of the arbitrator’s judgment, when it was his judgment and all that it connotes that was bargained for.

The Court continued:

The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.  The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.  The processing of even frivolous claims may have therapeutic value of which those who are not a part of the plant environment may be quite unaware.

When there is not language in the collective bargaining agreement related to a particular matter in dispute, the parties may be forced to litigate the subject matter arbitrability in court.  A court may determine that a grievance is appropriate for arbitration, or a court may determine that the matter in dispute has nothing whatsoever to do with the terms of the collective bargaining agreement and may decline to order an arbitration hearing.

Procedural Challenge to Arbitrability

Aside from the subject matter challenge to arbitrability, an employer may also raise the idea that a matter is not procedurally able to be arbitrated.  These challenges may include failure to timely raise or process a dispute.  There may also be an allegation that a matter is not ripe to be arbitrated, meaning that no harm has occurred, even if there may be harm in the future.  The essence of a procedural challenge is to determine whether the rules of the road have been followed.  If they have, then the matter is arbitrable, if they have not, then the matter may not be subject to arbitration.
Unlike substantive challenges which sometimes require the intervention of a court to determine whether a dispute should be arbitrated, procedural challenges are generally left to the arbitrator and only the arbitrator to decide. A work published under the authority of the American Bar Association’s Section of Labor and Employment Law explains:

In respect to the determination of procedural arbitrability, the Supreme Court has ruled that questions of procedural arbitrability are for arbitrators to decide and not for the courts.  When a court has determined that the subject matter of a dispute is arbitrable (substantive arbitrability), the arbitrator is to decide all procedural questions that grow out of the dispute and bear on its final disposition.

There is good reason for this principle.  First, having an arbitrator decide whether a grievance is procedurally arbitrable saves considerable time and expense as compared to the court system making that determination.  Second, arbitrators can be expected to exercise the type of industrial relations experience that the parties contemplated when they provided for arbitration in the first place.   The ABA’s publication continued:

An American Bar Association committee has stated that ‘the function of the arbitrator to decide whether or not an allegation of nonarbitrability is sound could be compared to that of a trial judge who is asked to dismiss a complaint on motion for a directed verdict or for failure to state a cause of action.  This analogy indicates that a preliminary decision relating to arbitrability by the arbitrator is an inherent part of his duty.’  That arbitrators are capable of self-restraint is evidenced by the committee’s conclusion, based on examination of many awards, that ‘arbitrators generally are well aware of the limitations of their authority and scrupulously try to avoid any transgression of those limitations.’

What Does All Of This Mean?

Overcoming both a subject matter challenge and a procedural challenge to arbitration gets one’s foot in the door to allow for a determination on the merits of the case.  Most arbitration matters are not challenged in the manner described in this article, but some are.  It is important for the OPBA’s membership to understand that getting from the point of dispute into the arbitrator’s hearing room may not be a given and it may not necessarily be a smooth ride. As with any dispute or grievance, first check with your OPBA Director and your OPBA staff representative to help assess the best way to handle the matter.

Last Updated (Saturday, 15 December 2012 13:12)

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