*1 modify petition or amend the supplement the need arise to Should this, too, hearing done to the so prior must be alleged, facts respond. has an opportunity defendant isolation; instead, we to do so attempt do not construe
We statutes v. Mt. Cranmore Soraghan statutory the overall scheme. harmony with (2005). Resort, two or more Ski interpreting N.H. When matter, we construe them so subject statutes that deal with a similar other, will lead to reasonable they do not contradict each and so Id. of the legislative purpose results and effectuate the statutes. 173-B:3, The 173-B:3, read in with RSA I. harmony
RSA VIII must be 173-B:3, limited to admit evidence under RSA VIII is power trial court’s 173-B:3, I, 173-B:3, I. the notice of RSA RSA sets requirement hearing contest. The trial court has broad discretion contours to facts pertaining alleged it deems “relevant and material” admit evidence 173-B:3,1, not admit on unnoticed to RSA but it should evidence pursuant charges.
Reversed. Galway C.J., JJ., concurred. Duggan, Hicks, Broderick, Employee Labor Board Public Relations No. 2006-525
Appeal County of Merrimack (New Board) Public Labor Relations Hampshire Employee 19, 2007 Argued: April 23, 2007
Opinion August Issued: *2 Atlas, (Susan P.C., Atlas & A. Atlas on the brief and orally), of Nashua for the petitioner. Branch, LLP, Meyer
Backus, of Manchester {Jon Solomon & Meyer, brief), Chemical Workers and International Purcell on the and Ellen Workers, 10I6C, Local Commercial Food & Union Council/United counsel, the brief and Vehar, on Akron, general assistant Ohio {Randall respondent. for the orally), County (county), appeals The Merrimack
Dalianis, petitioner, J. Union International Chemical Workers respondent, Council/United (union), Workers, cross-appeals Local 1046C Food & Commercial Board Labor Relations Hampshire Employee of the New Public decision (PELRB) an arbitrator’s award implement ordering the union. We employee represented by of an mandating reinstatement vacate and remand. part, part affirm employer is a following: public
The record supports 2006). 273-A:l, X The union is the (Supp. of RSA meaning within *3 at the county’s for certain workers bargaining representative exclusive a collective county signatories home. The and the union were nursing (CBA). are Particularly appeal relevant to this bargaining agreement 1,2,24 articles and 25 of the CBA:
n “any rights, Article 1 contained the that parties’ agreement virtue of the New authority existing by Hampshire
duties or in no beway Revised Annotated or other law shall Stat[ut]es that, to the abridged by or limited” the CBA and extent law, CBA such any provision “any was inconsistent of law shall provision(s) prevail.”
* gave right manage Article exclusive home, right discipline or
nursing including as limited or employees, “[e]xcept specifically abridged the terms of [the CBA].”
n Article 24 provided abuse/neglect/exploitation” “[r]esident
would not be tolerated and that instance of “[a]ny physical, verbal, any mental or medical abuse/neglect/exploitation resident shall be for immediate termination.” grounds n Article 25 contained and arbitration grievance procedures. arbitration, provided
In the case of this article be if it was binding” arbitrator’s decision would “final “within the of the Arbitrator scope authority power set forth within this This article also Agreement.” provided: “The function of the Arbitrator is to determine the of this It interpretation specific provisions Agreement. that the arbitrator shall have agreed no to add to, from, subtract or terms of modify any agreement.” this 31, 2002; The CBA on March expired parties did not enter into a new CBA until after the events herein described. May
Beginning employed Melissa Foote as a assistant, (LNA), resident and later as a licensed nursing assistant at the union, home. Foote nursing also served as a steward for the shop participating negotiations contract and representing bargaining unit members.
On working October Foote was at the home where her nursing duties included performing safety checks on certain home nursing half every responding residents hour and to their calls. At approximately 2:30 LNAs found p.m., two one of residents in his wheelchair. sitting He had defecated. One LNA that the thought wearing resident should be Foote, diaper, an adult but the other was unsure. as the LNA primarily resident, responsible for this was called to answer this Foote question. him responded to the resident’s accusation that she had not attended pointing him, his face and finger yelling, loudly interrupting what she had done that emphasize day. Ultimately, this incident was home, to the assistant director of at the reported nursing nursing who form, resident, filled out a asked a social worker to complaint interview the representative and called Foote and a union to her office to discuss what had happened. reported It was also to the New Hampshire Department (DHHS). Health and Human Services
Based from the upon recommendations administrator and assistant home, administrator of the nursing county’s board of commissioners *4 23, voted to terminate Foote’s employment effective November 2002. The recommendation, administrator testified that he based his at least in part, upon wrongdoing. Foote’s refusal to admit to The union then filed a grievance on Foote’s behalf.
The to arbitration. The parties proceeded arbitration issue to which was: “Whether there was cause for the stipulated just County to terminate not, Ms. Foote under the collective If bargaining agreement? what shall arbitrator, the be?” In its brief to the the remedy county agreed that 28:10-a, “under RSA have County employees employed who been for more than one are entitled to a cause’ of year ‘good discharge.” standard brief, According county to that the further that agreed “good would be examined under traditional cause standards.” After five of the arbitrator found that while had not days hearing, Foote resident, neglected verbally the she had abused him. The arbitrator found, however, further that her conduct “was no more serious than Home,” that and Nursing at the to work who have continued employees resident, not she would the verbally abused having Foote admitted to had terminating Therefore, arbitrator found the terminated. have been the which penalty” and unreasonable “overly harsh Foote was reinstate county the The arbitrator ordered cause. county lacked benefits, Foote’s upon conditioned Foote, or other lost pay without back The training programs. abuse/neglect management taking anger Foote, union to file an unfair prompting to reinstate county refused filed a counterclaim county the PELRB. The practice charge labor labor practice in an unfair engaged the union had alleging that asserted Specifically, Foote’s reinstatement. demanding it exceeded his and unenforceable because award was void the arbitrator’s The public policy. and because it violated under the CBA authority followed. cross-appeal favor. This appeal PELRB ruled in the union’s PELRB, findings to its of we defer reviewing When a decision law, will not set aside its fact, and, ruling an erroneous of we absent demonstrates a clear party unless appealing decision order or unreasonable. unjust of the evidence that the is preponderance (2003); Comm’n, 688, also RSA 149 N.H. see Nashua Police Appeal of (2007). presumptively PELRB’s of fact are Though findings 541:13 record its reasonable, support we require lawful (2003). Laconia, 91, 93 150 N.H. City Appeal determinations.
I
by enforcing
first
that the PELRB erred
argues
arbitrator’s award because the award exceeded the arbitrator’s
and, therefore,
“A
to arbitral
binding.
judicial challenge
was not final and
court to consider both the CBA and
authority requires
reviewing
R.W.F., Inc.,
submission.”
Larocque
arbitral
Rochester,
1993);
149 N.H.
City
see
Police Comm’n
Appeal of
(2003) (extent
is determined
jurisdiction
by parties’
of arbitrator’s
arbitrate;
question
submit even
agreement
parties may agree to
arbitrator);
Cargill,
Local 238 Intern. Broth. Teamsters v.
arbitrability to
(8th
1995) (“Once
Inc.,
gone beyond
have
parties
to an
actually
their
to arbitrate and have
submitted an issue
promise
arbiter,
we must look both to their contract and to the submission of
omitted)).
to the
to determine his authority.” (quotation
issue
concern whether the
have
overriding
contracting parties
agreed
is
“[T]he
arbitrate
not whether the
within the
particular dispute,
agreement
*5
Rochester,
CBA.”
While we contractual interpret provisions de see Durham, 486, 487 (2003), Appeal Town 149 N.H. “the general rule [is] of of that the interpretation arbitrator, of a CBA is within the province of the subject to certain exceptions recognized by our case are law” that not N.H., 106, (2001); relevant here. Appeal State 147 N.H. 109 see of of (2006) (where Manchester, 289, Appeal City 153 N.H. 294 PELRB of had authority interpret CBA to determine whether claim was arbitrable, we interpretation novo); review PELRB’s of CBA de Appeal of Durham, (same). Town 149 at N.H. 487-88 the parties “[W]hen include CBA, an arbitration clause in their they choose to disputes have concerning constructions of the CBA resolved by Appeal arbitrator.” N.H., omitted). State N.H. at 109 (quotation brackets of “Because the parties have contracted to disputes by have settled arbitrator chosen them rather than judge, it is the arbitrator’s view of the facts and of the of the meaning contract that agreed have Misco, Inc., accept.” 29, (1987); v. Paperworkers U.S. 37-38 see Drivers, 170, (1st 2001). 8, 10 Keebler Co. v. Truck Local Cir. For reason, this the PELRB does not regularly jurisdiction have to interpret the CBA when it provides binding for final and arbitration. Appeal State N.H., 147 at N.H. 108.
Our review of the arbitrator’s interpretation of the CBA is similarly
(1st
limited.
Georgia-Pacific
See
v. Local
Corp.
1988). Just as the court
not
may
reject the arbitrator’s factual findings
simply
them,
because it disagrees
may
neither
the court
reject
arbitrator’s
interpretation of
CBA
because the court
simply
disagrees
Misco,
with it. See
484 U.S.
38.
at While the arbitrator cannot
ignore
CBA,
plain language of the
because the parties authorized the arbitrator
give meaning
to that
“a court
language,
reject
should not
an award on
the ground that the arbitrator misread the
long
contract.” Id.
as the
“[A]s
arguably construing
arbitrator is even
applying
acting
contract and
within the scope
authority,
of his
that a court is
he
convinced
committed
Id.;
serious error does not suffice to overturn his
Georgia-
decision.”
see
F.2d
Corp., 864
at 944. The court’s task is thus
...
“ordinarily
Pacific
limited to determining whether the arbitrator’s construction of the [CBA]
Union, Inc.,
is to
extent
any
plausible.” Exxon
v. Esso
Corp.
Workers’
F.3d
abrogated on other
Eastern
grounds by
(2000).
Workers,
Associated Coal
Corp. United Mine
Our conclusion is consonant with the decisions of other courts. See id.
cases). In Bureau
Communication
(citing
Engraving
Graphic
(8th
Union,
instance,
International
823-24
as
here, ordered the
employer
employee
arbitrator
reinstate
who
had
terminated for
thirteen unexcused
Unlike
accruing
been
absences.
here,
CBA at issue
the CBA in Bureau
included a
Engraving
just not, however,
Bureau
On
the
contended that the arbitrator had
appeal,
employer
the
which
language
policy,
the
attendance
authority by ignoring
plain
thirteen unexcused
was
remedy
that
the
for
absences
provided
termination,
analysis.
cause
Id. The court ruled
by conducting just
authority
conferred
on the arbitrator
to
parties’
the
submission
that the
analysis
interpretation
conduct a
cause
just
at
the court
“For
explained:
submission was reasonable. Id.
825. As
it,
to
to the
only
employer] agreed
stipulate
just
reasons known
to
[the
entered into the
cause
it is
analysis____Having
just
stipulation,
cause
to
now that the arbitrator acted
disingenuous
employer]
argue
for [the
the
asked it to
by conducting
very analysis
employer]
improperly
[the
(where
Id.;
Co.,
F.3d at 680
employer
undertake.”
see Homestake Min.
whether
had
cause to
requested
employer
just
arbitrator to determine
cannot
that arbitrator
lacked
discharge employee, employer
argue
(same).
issue);
Inc.,
to decide this
found
termination,”
separate remedy
he
“not free to fashion a
immediate
was
in the
Id. at 34.
parties’ agreement.”
from the one
apart
provided
contends,
before the
contrary
argument
also
to its
county
arbitrator,
did not ask the arbitrator to
parties’
apply
submission
the CBA’s
just
apply
implied
traditional
cause
but rather
principles,
CBA “was
“just
county
definition of
cause.” While the
concedes that the
standard,” the
silent with
to the articulation of a
respect
collectively bargained
asserts
that “the mere existence of a
labor
‘cause,’
...
agreement
employer
‘just
mandates that
demonstrate
Thus,
to the
the reference in
‘good
according
county,
cause’
cause.’”
24(B)
“grounds
“just
Article
for termination” was akin to a reference to
cause,”
provision, terminating
employee
and that under this
See
verbally abusing
per
Georgia-
a resident constituted
se
cause.
For all of the above we by enforcing err as a matter of law the arbitrator’s award.
II erroneously that the PELRB enforced the next asserts find, violated “To so we public policy. arbitrator’s award because award strong the PELRB’s order contravenes a must conclude statutes, controlling regulations, as public policy expressed dominant Pelham, law, authority.” common and other Town applicable Appeal (2006) omitted). 125, 129 154 N.H. such cases our review is (quotation “[I]n law, general limited to the confines of rather than considerations positive Id.; & v. Rubber supposed public interests.” see W.R. Grace Co. (1983). Workers, 461 U.S.
“In the context of an arbitration award that reinstates a fired
employee,
question
charged
public
is not whether the
conduct offends
remedy
or whether some
short of unconditional reinstatement...
policy,
Rather,
might have been
the sole
whether the
preferable.
question is
gives
award itself—the order
offense.” Mercy
reinstatement —
Ass’n,
Hospital v. Massachusetts Nurses
denied,
(2006);
cert.
The county argues that there are strong and dominant public policies against reinstating an LNA who has been found to have abused verbally a resident and who fails understand the wrongful nature of her conduct. To support argument, (2006). this the county upon § relies 42 C.F.R. 483.13 §
42 C.F.R. 483.13 that a provides long-term resident of a care facility, home, like the nursing verbal, “has the right sexual, be free from abuse, physical, mental corporal punishment, and involuntary 483.13(b). § seclusion.” 42 C.F.R. It also provides that a long-term care facility, home, like the nursing must employ “[n]ot individuals who have been... guilty abusing, [f]ound neglecting, mistreating by a residents law; court of or ... had finding a entered into the [h]ave State nurse aide abuse, registry concerning neglect, mistreatment of residents or 483.13(c)(ii). misappropriation § of their property.” C.F.R. disagree §
We that 42 C.F.R. 483.13 expresses strong and dominant public policy against reinstating an LNA who has been found arbitrator to have engaged one of verbal episode abuse who fails and/or to admit her wrongdoing. regulation While precludes nursing homes from employing individuals who have been found guilty by a court of abusing, neglecting residents, or mistreating as those terms are defined elsewhere, and from employing those for whom the State has entered an
46 aide it is silent with registry, respect
adverse into the State’s nurse finding as Foote. reinstating an LNA such in as that term is by engaged Foote was not found a court to have abuse 3002(1) 3002(1) 2007). § 42 defines (Supp. § in 42 U.S.C.A. U.S.C.A. used confinement, injury, “abuse” as the willful “infliction of unreasonable harm, intimidation, or resulting physical pain, or cruel punishment ... ... of or services that are anguish deprivation goods mental ... or harm, The mental or mental illness.” necessary physical anguish, to avoid definition and no as to express opinion did not use this we Foote’s conduct meets it. whether
Moreover, the
is silent with
to reinstatement.
regulation
respect
however,
scheme,
statutory
regulatory
in the same
provisions
Other
(and,
extension,
in
by
reinstating)
engages
an LNA who
hiring
reveal
to 42 U.S.C.A.
precluded.
a
of verbal abuse is not
Pursuant
single episode
for removal
may petition
§
a nurse aide
State
1395i-3(g)(Supp.
the State
registry “upon
her name from the
a determination
his or
aide does not
personal history
that...
nurse
employment
or
and ...
neglect;
neglect
reflect a
of abusive behavior
pattern
Thus,
was a
occurrence.”
under
original finding
singular
involved in the
law,
not
from
in its
nursing
precluded
having
employ
federal
a
home is
LNA,
Foote,
engaged
was found
an arbitrator to have
such as
who
§
abuse. We therefore conclude that
C.F.R. 483.13
episode
one
of verbal
reinstatement with
public policy prohibiting [Foote’s]
does not “establish
Medical,
Similarly misplaced
(Mich.
denied,
App.), appeal
AFSCME Local
Ill (1) following In its the union raises the issues: cross-appeal, whether erroneously PELRB dismissed the bifurcated “Reserved Issues” without (2) matters; for the union to address those whether the opportunity applied wrong legal PELRB standard when it failed to admit or take administrative notice of the union’s evidence that would have reinforced its position agencies primary responsibility that State with protect public recently interest had taken actions to Foote to as an permit practice (3) LNA; whether, if reinstatement to her former position improper, Foote to another in the may position county. light be reinstated of our award, decision to affirm the PELRB’s decision the arbitration upholding (2) (3) we conclude that issues are moot. (1), respect argues
With issue union that the PELRB erred when it dismissed the Reserved Issues sua The record on sponte. submitted 2,2006 appeal hearing reveals that the officer’s March notified the decision union that Issues “administratively Reserved would be dismissed unless either PELRB party request proceedings files further within 24, 2006, days.” The record further reveals that on March union request filed a for further PELRB on proceedings the Reserved Issues. Nonetheless, 19,2006, on the PELRB dismissed the April Reserved Issues as moot. violated Reserved Issues involved whether
The so-called (1999) (1) 273-A:5,1 reinstate Foote in contravention by: refusing to RSA award, her thereby interfering licensing obligations of the arbitrator’s (2) in anti-union discrimination engaging job prospects; and future (3) Foote; discovery failing refusing provide to reinstate refusing DHHS. The union argues in connection with a before proceeding materials “strengthen request would [its] anti-union discrimination proving Thus, remedies,” fees and costs. whether including attorney’s additional discrimination to reinstate by failing in anti-union county engaged moot. While the asserts that the Foote does not to be appear claim, the union’s anti-union discrimination already addressed *12 only mistaken. The arbitrator addressed whether Foote, it terminated not in anti-union discrimination when engaged to reinstate her. it did so when it refused whether record submitted on we therefore vacate appeal, light remand for of the Reserved Issues as moot and PELRB’s dismissal 273-A:6, IX consistent with this See RSA opinion. further proceedings (1999) (orders fact findings of PELRB shall contain of and and decisions law). conclusions of part; vacated in and part;
Affirmed remanded.
Galway concurred; Duggan, J., Hicks, JJ., with whom Broderick, C.J., joined, dissented.
DUGGAN, J., Because I that the arbitrator fashioned dissenting. believe affirming of industrial and that PELRB’s justice, his own brand in our state’s labor unnecessary uncertainty threatens to create decision why disagree I first I respectfully explain law I dissent. jurisprudence, and then set forth how I would resolve this majority’s analysis, with the case.
I the following The asked the arbitrator resolve arbitral submission County there was cause for the to terminate Ms. inquiry: just ‘Whether not, the collective If what shall bargaining agreement? Foote under submission, with the holds that this combined remedy majority be?” the arbitrator to ‘just fact the CBA “did not reference cause’” allowed exercise his essentially “‘traditional cause standard’” apply a for Foote’s discipline to determine the level of independent judgment conduct. verbal, of mental provides: “Any physical,
Article 24 of the CBA instance resident shall be abuse/neglect/exploitation any grounds or medical added.) The (Emphasis majority apparently immediate termination.” a difference between article and a meaningful concludes that there is verbal, mental provides: “Any physical, CBA that instance hypothetical any or medical resident shall be abuse/neglect/exploitation Moreover, drawing I do such a agree. for immediate termination.” not unnecessary uncertainty distinction threatens to create about how we will might language resolve future cases. For other CBAs contain example, (1) verbal, as: instance of mental or medical “Any physical, such any resident shall be reason for immediate abuse/neglect/exploitation (2) termination”; verbal, or instance of mental or medical “Any physical, any resident shall be cause for immediate abuse/neglect/exploitation where, continuum, along termination.” We will have to decide a this falls, language require parties bargaining alternative or at table to use another, i.e. cause” i.e. or synonym, “just “grounds,” one over “reason” “cause.”
Treatises, law, cause,” “just case and dictionaries the view that support “cause,” are not distinct are “grounds” concepts “reason” when collectively bargained-for agreement used to describe conduct that serves as an basis for Those offenses that are adequate discharge. “grounds,” “cause” “reason” for termination are necessarily “just Thus, cause” for termination. by expressly unambiguously providing termination, specific “grounds” “just the CBA did reference a cause” *13 standard.
One respected arbitration treatise observes: do, fact,
Most collective bargaining agreements require “just “cause” or cause” for or discharge discipline____ It is common to right include the for suspend “just cause,” cause,” cause,” “justifiable cause,” “proper “obvious or quite commonly simply for “cause.” There significant is no between these various phrases. difference Elkouri, (5th 1997)
Elkouri & How Arbitration Works 887 ed. (brackets added). omitted; emphasis See,
Numerous courts use these
interchangeably.
e.g.,
terms
Intern.
Co., Inc.,
(6th
1980)
474,
Broth.
Firemen v. Nestle
475-77
Cir.
of
“cause” and
(repeatedly using
“grounds” interchangeably); Bruce
UBC,
2713,
449,
(5th
Hardwood Floors v.
Indus. Work. No.
455
1997)
J.,
(Benavides,
dissenting) (using “ground”
synonym
as
for
cause”),
denied,
(1997);
“proper
cert.
interchangeably
cause.”); School Dist.
discharge,
per
immediate
se
ground for
(Mass. 2001)
Geller,
1241,
(summarizing
755 N.E.2d
1247 n.8
v.
Beverly
the terms
using
“just
reasons for dismissal and
cases where CBAs list
cause,”
cause,”
“grounds” interchangeably);
“cause” and
“proper
97-1780,
Union No.
No.
1998 WL
Marathon Oil Co. v. Local
(6th
25, 1998)(using“grounds”
synonymously).
*2
and “cause”
Sept.
at
well for a distinction
augur
dictionaries nor thesauruses
Neither
Heritage Dictionary
(3d
See,
799
e.g.,
these terms.
between
American
1992)(definition
grounds. The
provides:
underlying
“Often
“ground”
ed.
action;
grounds
suspicion;
ground
a cause:
prompting
condition
for
divorce.”);
356
THIRD New INTERNATIONALDICTIONARY
WEBSTER’S
for
2002) (“cause”
reason: a
good
adequate
ed.
means “a
or
(unabridged
—>”);
for
activating
employee discharged
sufficient
factor <an
RANDOM
Dictionary
English
Language
(1966) (similar);
House
Dictionary
(8th
1999) (“cause”
ground
ed.
means “A
Black’s Law
good
does not have cause to file suit>.
legal
plaintiff
action <the
reason____
The term is often used
legally
cause. A
sufficient
shown; just
cases.—Also termed
employment-termination
good
Legal
(2d
cause;
cause;
cause.”);
ed.
Thesaurus
lawful
sufficient
1992)(“cause”
are
“ground”
synonyms).
CBA,
arbitrator,
his
discretion to construe the
Even the
broad
Misco,
(1987),
Inc., 484 U.S.
did not specifically
Paperworkers
Instead, he
“grounds.”
acknowledged
offer an
of the word
interpretation
grounds
that article 24
that “certain kinds of conduct shall be
provides
members of the
“clearly put[s]
bargaining
immediate termination” and
unit,
Foote,
could
to immediate
including
subject
on notice that
be
Then,
decision,
as the basis for his
he
termination for incidents
abuse.”
“just
to have
used
cause” in the arbitral submission as
appears
essentially
or
to mete out a
that he did not find “harsh”
penalty
a vehicle
engage
In so
the arbitrator did not
contract
doing,
“unreasonable.”
Misco,
misinterpretation.
or even
contract
See
interpretation,
permissible
(“[A]s
arguably construing
at 38
as the arbitrator is even
long
U.S.
his
that a
acting
scope
authority,
the contract and
within
applying
not
to overturn
court is convinced he committed serious error does
suffice
decision.”). Instead,
at his
his
he
from the CBA to arrive
own
departed
*14
language
a result that is
justice,
prohibited
plain
brand of industrial
(“the
to,
have no
to add
subtract
of the CBA
arbitrator shall
from,
language
of this
modify any
agreement”),
plain
or
terms
(‘Whether
County
there was
cause for the
arbitral submission
not,
If
bargaining agreement.
terminate
Foote under the collective
Ms.
51
well-settled,
added)),
persuasive
remedy
(emphasis
what shall the
be?”
country.
from
across the
overwhelming authority
jurisdictions
consistently
in
hold that where an
jurisdictions
Courts
other
for
grounds
lists certain behavior as
employment agreement
termination,
occurred,
there
a
that such conduct has
finding
where
is
remedy. Although
free to fashion his own
the term
the arbitrator is not
cases,
change
often
its
does not
“just
appears
cause”
these
absence
Food,
See,
v. United
Local
reasoning.
e.g.,
Spring Corp.
essential
Poland
(1st
(2003)
2002),
denied,
1445,
29,
Cir.
cert.
The cases relied are For upon Union, in Communication International Engraving Graphic Bureau of (8th 2002), F.3d Cir. the arbitral submission asked the Employer to determine ‘“Whether the had cause to arbitrator Puffer, not, Linda if what grievant, terminate the employment Thus, ease, to the instant the arbitral remedy?”’ should be the contrast made no reference to Engraving determining submission Bureau of an argument allowing depart cause “under the CBA." arbitrator submission, the arbitral stronger from the CBA is much when reason, and does not gives require whatever arbitrator broad him in the grounded parties’ agreement. to be America, Co. v. United Steelworkers Mining Homestake (8th 1998), 678, 680 Cir. the arbitrator determined that the worker’s Here, by did not a violation of the rule. employer’s conduct constitute contrast, elderly found that Foote did abuse the expressly resident. Trailer, Electronic, LLC Union In Trailmobile v. International
Electrical, Salaried, Workers, 223 F.3d Machine and Furniture (8th 2000), conduct that provision examples a handbook that listed warning” an to immediate without was “may subject employee issue, that the could enforce provided employer only at and the CBA case, In the instant there is no at issue provision “reasonable rules.” proscribed of “reasonable rules” and the regarding enforcement conduct into the CBA. directly is written 1195, 1196 Brotherhood,
In LB & B v. International Associates (10th provided employee engaged the CBA who Id. “‘may subject discharge.’” sexual harassment be to immediate omitted). The Tenth Circuit noted that if the CBA did (emphasis expressly a different outcome would have permissive language, not use such obtained. Id. at 1198n.2. The CBA here uses the word “shall.” See Dancart (1984) (the Co., *16 602 v. St. Albans Rubber 124 N.H. word “shall” Corp. character”). “commonly mandatory does have a 16, Local 21 Employees,
In Boston Medical v. Service
(2002),
2001),
denied,
there
at
provision
cert.
F.3d Eighth the Circuit found “an inherent tension between the CBA ambiguity” drug and a and alcohol that was not policy However, “written verbatim into the bargaining agreement.” collective the court stated that clearly the collective bargaining agreement “[i]f that an expressly provided employee who refuses to take an alcohol test terminated,’ “willbe we would agree with the district court’s decision that the arbitrator’s award ‘ignored plain the mandatory language’ Here, agreement----” Id. the CBA states that abuse shall be for grounds termination. No separate policy is involved. decision, order to the uphold the majority turns to a
seven-factor test. There are two why reasons we should not turn to that First, test in this case. the arbitral submission did not ask the arbitrator to decide: “Whether there was cause for County the to terminate Ms. not, Instead, Foote? If what shall the be?” it remedy asked the arbitrator to resolve the following concrete “Whether there inquiry: was cause for the County to terminate Ms. Foote under the collective bargaining not, added.) If agreement? Thus, what shall the be?” remedy (Emphasis the arbitrator’s decision had to be anchored plain language of CBA, language unambiguously lists the conduct that constitutes “grounds” “just cause”—to terminate. The arbitrator not was free — depart from that If the language. parties had no intention of requiring terms, arbitrator to enforce the unambiguous contract then would not have inserted the “under phrase the collective into bargaining agreement” the arbitral submission.
Second, as the United States Appeals Court of for the Eleventh Circuit explained, type has of broad cause” “just analysis embodied bargaining agreement into when a collective play
seven-factor test comes
adequate
conduct that shall serve as an
basis
spell
does not
out
Nav.,
It
not
employed
City of issues, noted that in approval, deciding just factor test with but to consider the issues and underlying has “the arbitrator necessary interpret apply express circumstances surrounding added.) reach a final decision.” (Emphasis the CBA and provisions of circumstances and found Here, surrounding the arbitrator examined of the CBA. apply express provisions He then compelled abuse. was Manchester authorizes Nothing Appeal City of a If we conclude provision CBA with seven-factor test. supplant express case, test in then employing every cause” means seven-factor “just specific types grounds will never be able to make of conduct employers *17 so, termination, do their anytime they try because to immediate to an arbitrator. subject upset by decisions will be disciplinary that if the was concerned that the arbitrator majority states Foote, to then it could have discharge its decision might second-guess whether Foote had in the only engaged asked the arbitrator to “determine true, accused.” If that is then both sides would conduct of which she was CBA, abuse, to the idea that under the agreeable have had to have been (and alone, to terminate employment. Clearly does constitute a valid basis case, the union never posture the of this would understandably), given fact, it seem that Foote for firing made such a concession. would have led the union to the case in the first impetus grieve was one abuse Furthermore, failing unfair to fault the for it seems place. would from the of the depart plain language that the arbitrator anticipate CBA. the First Circuit:
To borrow from
particular type
of a
to ...
for
right
[a
The reservation
if the
wholly
meaningless
would be
ineffective
conduct]
action,
to such
to review
pursuant
right,
subject
employer’s
If the reserved
appropriateness.
an arbitrator on the basis of
mean that
the
can take no
right
employer
is construed to
in excess of a
at its own risk
reprimand, except
action
disciplinary
in case an arbitrator should later
subject
penalties
to severe
that some milder action is
the
opinion
appropriate,
be of the
inherent
which has not
employer’s
right
effect would be that
contract is no
at all.
relinquished by
right
expressly
been
omitted).
Chevrolet,
5 (quotation
835 F.2d at
Metro
II
of the cases that hold that
Accordingly,
adopt
reasoning
I would
termination,
as
for
types
grounds
a CBA lists
of conduct
particular
where
has occurred.
ends when he finds that such conduct
inquiry
cases,
although
I would hold that
the “arbitrator
Consistent
those
grievance,
in the context of a
to consider the
authority,
ha[d]
underlying
surrounding
necessary
interpret
issues and
circumstances
decision,”
of the CBA and reach a final
apply
express provisions
Pelham,
(2006),
154 N.H.
his award
Town
Appeal of
CBA and the arbitral
nevertheless had to be consistent with the
1993).
R.W.F.,
Inc.,
submission.
96-97
LaRocque
Article 24
for
where
say
may
only
does not
termination
abuse
occur
(Boudin, C.J.,
or “fair.” See Poland
The paramount point to be remembered in labor arbitration is *18 power authority that the of an arbitrator totally is derived from bargaining the collective and that he agreement violates his to the if he obligation parties substitutes his own brand of justice industrial for what has been the agreed parties. omitted). at 33 (quotations
Id.
The
holding
rationale for this
is persuasive:
provisions
“contractual
like
the
clause ... are bargained
[termination
abuse]
for and inserted
precisely to take discretion
from
away
charged
arbitrators
with enforcing
the collective bargaining agreement.”
Spring,
Poland
[T]o [the this decision] notwithstanding the took pre-negotiation place, [is] of... that the equivalent saying parties engaged in a meaningless them rules and disciplinary incorporating by negotiating act agreement. says] bargaining [It into the collective to fashion remedies even when this right retained the arbitrator That is not given by parties. was not authority contractual the law.
Warren,
[i]t clearly restrict bargaining agreement the collective applied the arbitrator exercising arbitrator from bargaining may at the table happens here. The realities of what admirably CBA article at was illusory. issue] make this [The flexibility give some workers give management drafted to [prohibited instance of must every conduct] that not protection of that questioned why price termination. It can be mean guess to second should be to flexibility permit certain forgiving to be less management’s judgment [in instances]. J., dissenting). impose I would not (Lynch,
Poland 314 F.3d at Spring, dissent. respectfully such a and therefore price, BRODERICK,C.J., in the dissent. joins