Adjunct Law Prof Blog

Virginia Supremes Hold That Supervisor Can Be Personally Liable In Public Policy Exception Case

A divided Virginia Supreme Court recently held 4-3 that a state law claim of wrongful discharge in violation of public policy may be pursued against an individual supervisor or manager who participated in the wrongful firing but was not the worker's actual employer (VanBuren v. Grubb, Va., No. 120348, 11/1/12).

Writing for the majority to answer a question certified by the Fourth Circuit, Justice Millette says the purpose of Virginia's wrongful discharge tort is to deter firings in violation of public policy. That purpose “is best served if individual employees in a position of power are held personally liable for their tortious conduct.” 

By contrast, the dissent would find "[o]nly an employer can breach that duty because only an employer has the ability to hire and fire.” 

Mitchell H. Rubinstein

Will Michigan Become A RIght To Work State

The Michigan Senate passed its own Right to Work bill SB 116<http://act.aflcio.org/salsa/track.jsp?v=2&c=kXw5bfqGK18wLzLHY2N%2BFTZ2QCr3oYcj> last night, 22 to 16. That bill now moves to the House, which passed its own right to work bill yesterday (HB 4054). More information can be found here<http://act.aflcio.org/salsa/track.jsp?v=2&c=VkkMFc5BR%2BmvIsADMBMHCDZ2QCr3oYcj>.

The “continuing jurisdiction” of the arbitrator once a final determination is made is not automatic

New York State Dept. of Corr. Servs. (New York State Corr. Officers & Police Benevolent Assn., Inc.), 2012 NY Slip Op 07242, Appellate Division, Third Department

Upon the conclusion of a disciplinary arbitration the arbitrator found the employee guilty of certain charges and made an “interim award,” imposing a penalty of suspension without pay for 45 days and directing that the employee “otherwise be made whole.”

The final award mirrored the arbitrator's interim award but further provided that the arbitrator was "maintain[ing] jurisdiction . . . in the event that any dispute [arose] between the parties over the implementation of [the] [a]ward."

After the employee returned to work he filed a grievance alleging that the Department of Correctional Services* had not restored all of the back pay, time accruals and other benefits due him as directed by arbitration award.

Ultimately it appears that the employee’s union, the New York State Corr. Officers & Police Benevolent Assn. [NYSCOPBA] asked the arbitrator to reopen the arbitration to ascertain whether employee had been made whole pursuant to the terms of his award. A hearing date was scheduled, but the Department, contending that the arbitrator was powerless to, among other things, reopen, modify or explain the prior award, objected.

Notwithstanding the Department’s objection, the arbitrator conducted a hearing in which only NYSCOPBA participated and subsequently awarded the employee approximately $4,000 in vacation and holiday accruals.

The Department filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking to vacate the award upon the ground that the arbitrator exceeded his power in reopening the proceeding. In rebuttal, NYSCOPBA argued that the Department had waived its right to seek vacatur of the award and cross-moved to confirm the award.

Supreme Court granted the Department’s application, vacating the award whereupon NYSCOPBA appealed contending that the Department “waived [its] opportunity to vacate the [challenged] arbitration award by, among other things, failing to challenge the arbitrator's assertion of continuing jurisdiction and/or participating in the [challenged] arbitration hearing."

The Appellate Division affirmed the Supreme Court’s ruling, rejecting NYSCOPBA’s argument that the Department had waived any of its rights. The court explained that the Department was “not immediately aggrieved by the arbitrator's purported retention of jurisdiction, the exercise of which admittedly was conditioned upon a future … entirely theoretical dispute between the parties as to the subsequent implementation of the award.”

Further, said the Appellate Division, while NYSCOPBA is correct that "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place," here the Department expressly objected to the proposed hearing in writing, and it is undisputed that it did not attend in the hearing. Accordingly, the Appellate Division said that it was satisfied that the Department did not "actively participate [in the arbitration]."

As to merits of NYSCOPBA’s appeal, the court said that it is well settled “that an arbitrator has broad discretion to determine a dispute and fix a remedy, and that any contractual limitation on that discretion must be contained, either explicitly or incorporated by reference, in the arbitration clause itself.’

The Appellate Division said that the controlling provision of the collective bargaining agreement between the parties specifically provides that “[d]isciplinary arbitrators shall confine themselves to determinations of guilt or innocence and the appropriateness of proposed penalties . . . [and] shall neither add to, subtract from nor modify the provisions of [the CBA]." Further, said the court, the CBA agreement further provides that "[t]he disciplinary arbitrator's decision with respect to guilt[,] innocence [or] penalty . . . shall be final and binding upon the parties," which language “evidences a clear agreement by the parties to the CBA to ‘limit the discretion of disciplinary arbitrators.’"

While there may be circumstances where an arbitrator's retention of jurisdiction will be deemed permissible, in this instance the Appellate Division concluded that “such circumstances cannot — in light of the restrictive language of the underlying CBA — be said to exist here.”

Accordingly, court ruled that arbitrator's retention of jurisdiction in this matter "clearly exceed[ed] a specifically enumerated limitation [upon his] power” and the arbitrator's authority over the issues submitted to him ended once he rendered his decision.

* The Department of Correctional Services is now known as the Department of Corrections and Community Supervision. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07242.htm

Reprinted with permission New York Public Personnel Law

Mitchell H. Rubinstein

NLRB Regional Attorney Opening

On Oct. 22, 2012, the NLRB annoucned that there is an opening for a Regional Attorney in Region 22 which is located in Newark, NJ. I have no idea whether the job is still available, but I thought I would post it. Additional information can be found here.

Mitchell H. Rubinstein

Secunda and Hirsch Labor Law: A Problem Based Approach (LexisNexis 2012)

Move over Cox, there is a new labor law text in town. It is Secunda & Hirsch, Labor Law: A Problem Based Approach (2012) and it should be available from LexisNexis anyday. Readers may be familar with Professor Secunda and Professor Hirsch's work. They are two of the four editors of Workplace Prof Blog, a blog we often quote and which this blog is modeled after. 

What makes this book so outstanding is that it updates everything and I mean everything. The book focuses on recent caselaw and recent issues. The book is written with the student in mind and also provides several problems which are designed to stimulate interest in labor law and make the student think. 

The book also covers all the classic cases and covers all the basic issues; it just does it better. Most importantly, the cases are edited and many presented in less pages than in other texts. The book also quotes from several important law review articles.

Congratulations Paul and Jeff. Everyone teaching labor law should consider this book for adoption. 

Mitchell H. Rubinstein

Court Backs Arbitrator on Employee Raises; Union Won Award for Rollback of Increases

From The Nov. 29, 2012 Daily Labor Report:

A federal district court in Pennsylvania Nov. 26 upheld an arbitrator's ruling that a retail grocer violated its collective bargaining agreement with a United Food and Commercial Workers local by granting individual wage increases to unit employees without the consent of the union (Giant Eagle Inc. v. United Food & Commercial Workers Local 23, W.D. Pa., No. 12-cv-987, 11/26/12).

Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania granted summary judgment to UFCW Local 23 in a lawsuit brought by Giant Eagle Inc. under the Labor-Management Relations Act and the Federal Arbitration Act. Denying Giant Eagle's request to vacate the arbitration award, Schwab found the arbitrator acted within his authority in reaching a decision that could be rationally derived from the parties' labor contract.

A union forced to challenge unlawful unilateral wage increases is in a very difficult political position. I am sure that many do not challenge them. 

Mitchell H. Rubinstein

 

Census Bureau Releases EEO Data Regarding U.S. Labor Force Demographics

From the Nov. 29, 2012, Daily Labor Report:

The U.S. Census Bureau today began releasing its equal employment opportunity tabulation, a set of 107 tables describing the U.S. labor force, broken down by sex, race, and ethnicity, and searchable by geographic location, occupation, and other variables.

The data, which are based on the bureau's American Community Survey for 2006 through 2010, were compiled by Census at the request of four “sponsoring agencies,” the Equal Employment Opportunity Commission, the Labor Department's Office of Federal Contract Compliance Programs, the Office of Personnel Management, and the Justice Department Civil Rights Division's Employment Litigation Section.

Since the 1970s, Census has produced an EEO tabulation about every 10 years after conducting the decennial census. The most recent tabulation, then called the EEO special file, was released in December 2003.

Mitchell H. Rubinstein