This was the Board’s last major policy decision before it lost one member, which leaves it without a quorum to act.  President Obama has nominated Sharon Block and Richard Griffin to the Board.  Ms. Block is currently deputy assistant secretary of Congressional affairs with the Labor Department.  Mr. Griffin has served on the board of the AFL-CIO Lawyers Coordinating Committee since 1994 and is general counsel to the International Union of Operating Engineers.  Republicans may well block these nominations in an effort to prevent the Board from functioning at all.  More coverage here.

Introduction to the Jobs and the Economy section:

“Our nation has experienced profound economic change over the last three decades. Globalization, new technologies, and deliberate public policies shifted our economy from the production of goods to the production of knowledge and services. As millions of unionized factory jobs moved overseas, our nation lost a primary source of middle-class jobs for people without college degrees. Less-educated workers now have few options outside of non-unionized, low-wage service occupations.”

This is a summary of the Union’s argument:  Because national labor policy strongly favors arbitration as the means for resolving labor disputes, courts must apply a presumption of arbitrability to collective bargaining agreements that contain arbitration provisions, and direct the parties to arbitrate unless the parties have expressly agreed not to arbitrate a particular matter.  Any doubt or ambiguity regarding arbitrability is to be resolved in favor of arbitration. 

Here, the parties’ collective bargaining agreement and separate settlement agreement for grievant Brian Pollard require arbitration of the grievance regarding Pollard’s termination because Pollard was not a “new employee” when he was rehired in 2010.  Moreover, to the extent the settlement agreement is ambiguous about permitting Pollard’s grievance to be arbitrated, that ambiguity must be construed in favor of arbitration.  Therefore, defendant’s motion to dismiss should be denied, and plaintiff’s motion to compel arbitration – filed this same day – should be granted.

Here is a summary of the Union’s position: 

First, plaintiff’s claim should be dismissed for failure to timely effect service because plaintiff did not properly serve defendant before the 120-day deadline elapsed, and had no good cause for its failure to do so.  Second, plaintiff’s claim should be dismissed because plaintiff CFPTA was not a party to the arbitration decision that it seeks to vacate, has no standing to challenge the decision, and has provided no relevant authority to demonstrate that it is permitted to bring this suit under 28 U.S.C. § 185. 

Third, plaintiff’s claim should be dismissed for failure to state a valid claim to vacate the arbitration decision.  The arbitrator correctly determined that Professional Transit Management of Wilmington, Inc. (“PTM”) violated the controlling collective bargain agreement (“CBA”) in terminating the grievant, and to the extent there was ambiguity in the operative language of the CBA, the arbitrator’s interpretation cannot be disturbed by the Court.  Under the standard enunciated by the Supreme Court, plaintiff has also failed to show how the arbitrator’s decision to reinstate the grievant violates any clearly established public policy.  For all these reasons, the Court should award defendant its reasonable attorneys’ fees incurred in this litigation because plaintiff’s motion to vacate the arbitration award has no arguable basis in the law.

You would think that the latest, terrible monthly jobs report would convince those in power that the Great Recession continues unabated, doing terrible damage to working families.  Those unemployed for long periods face especially long odds of finding work in today’s economy.  And, even for those with good jobs, wages are continuing to be cut as even profitable employers take advantage of the ongoing crisis for workers.

Misguided worries about the budget deficit are allowing Republicans and the Deficit Commission to pursue Social-Security-cutting, Medicare-slashing, job-destroying agenda instead of a program that can end the Great Recession and put people back to work.  A new course of action is needed, and responsible policy options are out there.  For instance, check out the program set out by Our Fiscal Security, a collaborative effort of Demos, the Economic Policy Institute (EPI), and The Century Foundation (TCF).

The parent company here, Dr Pepper Snapple Group, is not alone in making large profits even as workers earn less and less.  Our economy, however, cannot start growing again on a sustainable basis unless workers’ wages increase.  The Great Recession shows that families need higher wages to prosper in the long run instead of relying on more and more debt.

The union challenged Corbett’s termination and the case was initially decided by an experienced labor arbitrator.  Corbett, a 34-year employee, did nothing wrong in getting fired, but was terminated without just cause because of Bridgestone’s unilateral decision.  This is commonly known as a persona non grata situation.  The arbitrator found that this firing violated the union’s contract with UNICCO, and award Corbett 68 weeks of pay as damages because she could not order Bridgestone to return him to work.  UNICCO challenged the arbitrator’s decision in federal court.

In his July 16, 2010 opinion, Judge Boyle affirmed the arbitrator’s award and granted the union’s motion to enforce it.  Judge Boyle reasoned: 

The CBA does not specifically provide for the persona non grata situation in the instant case. Rather, the CBA provides that employees may be terminated for just cause or laid off subject to seniority. Plaintiff admits that Corbett was not fired for cause, and the arbitrator determined that Corbett was not laid off because Corbett’s work was available and reinstatement based on seniority was not an option. Therefore, the arbitrator properly concluded that Corbett was terminated in violation of the CBA. The arbitrator’s recognition that Plaintiff acted in good faith and made every effort to find work for Corbett does not cure this breach. … Here, the arbitrator’s award is more properly viewed as damages for breach of contract rather than severance pay. And the CBA does not limit the remedy that the arbitrator may award for a breach of contract. As such, the arbitrator properly determined an award that drew its essence from the CBA. Therefore, Defendants’ Motion to Enforce is GRANTED, and Plaintiff’s Motion to Vacate is DENIED.

In the first, Granite Rock v. International Brotherhood of Teamsters, the Court ruled for the company, as ScotusBlog describes:

The parties had reached a collective bargaining agreement (CBA), but they disagreed about both when the CBA was formed and who should decide that question.  Today the Court, in an opinion by Justice Thomas, held that a court, rather than an arbitrator, should decide when the CBA was formed.  The Court explained that under the CBA, arbitration is required only when a dispute “arise[s] under” the agreement – which a dispute over when the CBA was formed does not.  The Court also held that the lower court properly declined to recognize a new federal common-law cause of action against the parent international union, which – according to the employer – tortiously interfered with the CBA.

In the second, Rent-a-Center v. Jackson, the Court sided with the employer, and held that the issue of unconscionability (a challenge to whether the arbitration agreement is valid in the first place), was to be decided by the arbitrator, as Workplace Prof Blog describes:

The Court held the issue was governed by the separability doctrine of Prima Paint: an arbitration agreement is assailable only if the arbitration agreement itself — not the overall agreement of which the arbitration is a part — is assailable on state-contract law grounds.  So far, so good for Jackson — until today, this separability doctrine has been applied only when an arbitration agreement was part of a broader (“container”) agreement that was not related to arbitration — e.g., an arbitration provision in a consulting-services contract or in a larger employment contract.  Jackson’s unconscionability argument was directed squarely at his arbitration agreement.

Today, however, the Court extended Prima Paint to hold that the arbitration agreement itself can be the container contract, and that unconscionability arguments must be directed toward specific provisions of the arbitration agreement.  Jackson’s unconscionability arguments, the Court held, were directed at the arbitration agreement generally, and therefore could not be grounds for voiding the arbitration agreement as a whole.

Read the whole post for its insightful analysis of how the Court erred, once again stretching the law to give a victory to employers over employees.