Arbitrator properly handled dispute involving the hiring of temporary, non-union workers

The whole point of arbitration is to keep labor-management disputes out of court. This means that when a party challenges an adverse arbitration ruling in court, they face an uphill battle. In this case, after losing the arbitration, management took the issue to court, which rules that the arbitrator did not violate the rules and that the arbitration ruling will stand.

The case is A&A Maintenance v. Ramnarian, issued on December 16. A&A provides janitorial and maintenance services to commercial real estate and educational institutions. Its workforce is unionized and the parties must therefore comply with a collective bargaining agreement that addresses when A&A may employ "substitute employees" to fill in for people who are out on disability or worker's compensation or extended leaves. When the union noticed an unusual number of new, non-union employees at a college one day, it tried to resolve that issue without arbitration, but the dispute eventually went to an arbitrator, who ruled in the union's favor, finding that A&A had hired and rehired these people to perform bargaining unit work, and it did so to save money and to effectively keep them on as probationary employees with fewer rights in the workplace.

We have two issues here. First the employer says the arbitrator improperly allowed the union to frame the arbitration issue differently throughout the process. The first issue statement was in the original grievance, claiming the employer violated the CBA in hiring these "substitute employees." The union later framed the issue for the arbitrator as whether the employer violated the CBA by using "temporary employees," "a term undefined in the CBA and broader in scope than substitute employees," to perform bargaining unit work. The difference between the two issue statements was that the first one mentioned substitute employees, and the second mentioned temporary employees. Management said the first issue statement was proper, not the second, because "substitute employees" carries a narrower definition than "temporary employees."

The arbitrator said the union could frame the issue the second time around this way, and the Court of Appeals (Sullivan, Katzmann and Calabresi) agrees, finding the arbitrator did not resolve an issue that was not properly before him. The Court says that management's argument elevates form over substance, as the substance of the union's initial grievance was its contention that non-union workers were improperly performing bargaining unit work, a dispute which covers A&A's use of temporary employees. The union's grievance was based on facts that were known to management when the union filed the grievance, even though the grievance did not explicitly use the terms "temporary employees" and "probationary employees."

Relatedly, the Court says, the arbitrator did not rewrite the CBA in ruling that A&A violated the contract by hiring temporary employees even though the CBA does not mention "temporary employees. This technical argument is also rejected, as the dispute arose when A&A tried to hire non-union temporary workers "by means of a strained interpretation of the probationary period [under the CBA]." Since the issue resolved by the arbitrator concerned the interpretation, application, or claimed violation" of the contract, the arbitrator was able to resolve this issue and did not exceed his authority in doing so.