March 23, 2018

Colorado Court of Appeals: Body-Worn Cameras Are Not “Personal Safety and Health Equipment” and Therefore Do Not Mandate Collective Bargaining

The Colorado Court of Appeals issued its opinion in Denver Police Protective Association v. City & County of Denver on Thursday, February 22, 2018.

Labor Relations—Collective Bargaining—Body-Worn Cameras—Summary Judgment.

The City and County of Denver (Denver) and the Denver Police Protective Association (DPPA) are parties to a collective bargaining agreement. That agreement implements the City and County of Denver Charter (Charter), which sets forth Denver’s obligations regarding collective bargaining with certain of its employees. A category in the Charter that is not required to be subject to collective bargaining is officer health and safety matters, except for personal safety and health equipment.

In 2015, the Denver Police Department (DPD) promulgated, without bargaining or consultation with DPPA, a policy regarding the use of body-worn cameras (BWCs). The policy required “patrol officers and corporals assigned to all six police Districts, the Gang Unit and Traffic Operations” to wear and use BWCs. DPPA immediately contended that this was a mandatory subject of collective bargaining and demanded that Denver bargain. Denver refused.

DPPA sued, alleging Denver violated the collective bargaining agreement by implementing the BWC policy without first bargaining in good faith with DPPA. The parties filed cross-motions for summary judgment. The district court granted summary judgment in favor of DPPA and ordered Denver to bargain over the implementation of the BWC policy.

On appeal, the court of appeals considered whether the BWCs are “personal safety and health equipment” subject to collective bargaining as claimed by DPPA and agreed to by the district court, or if they are equipment that relates to “officer safety and health matters,” as Denver argued, and therefore are not a mandatory subject of collective bargaining.

Analyzing the Charter, the court concluded that it is reasonable to restrict the definition of “personal safety and health equipment” to equipment whose principal purpose is the safety of officers. The case thus turned on whether the principal purpose of BWCs is officer safety. While BWCs may incidentally impact officer safety, their principal purpose is not to increase the safety of the officer. The court therefore concluded that BWCs are not “personal health and safety equipment” under the Charter and are not a mandatory subject of collective bargaining.

The judgment was reversed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Collective Bargaining Agreement Provided for Payment for ELA Classes

The Colorado Court of Appeals issued its opinion in Denver Classroom Teachers Association v. School District No. 1 in the County of Denver and State of Colorado on Thursday, January 12, 2017.

Collective Bargaining Agreements—Damages—Statute of Limitations—Administrative Remedies.

School District No. 1 and the Board of Education of School District No. 1 in the County of Denver and State of Colorado (collectively, the District) and the Denver Classroom Teachers Association (DCTA) entered into several collective bargaining agreements (CBAs) and extensions from 2005 to 2015. From the mid-1990s until the 2006–07 school year, the District compensated teachers for attending English Language Acquisition (ELA) training. ELA is a program to train teachers to work more effectively with students who have limited English language proficiency. A federal consent order requires the District to have teachers who are trained to teach such students. After the 2006–07 school year, the District stopped paying teachers for attending the training. DCTA filed a grievance against the District alleging violations of the 2005–08 CBA. DCTA subsequently filed suit for breach of the 2005–08 and 2008–11 CBAs and the extensions, and a jury returned verdicts in favor of DCTA for breach of contract, but it held the District not liable in special interrogatories regarding breach for teachers in the Professional Compensation (ProComp) system.

On appeal, the District first contended that the CBAs and extensions were unambiguous and that they did not require the district to pay teachers for ELA training. Because the articles provide for payment for work beyond the 40-hour week, and because the ELA training may fall into that category, the contract was fairly susceptible to being interpreted to require payment for such work. Therefore, the CBAs were ambiguous, and the trial court properly let the interpretation go to the jury as a question of fact.

The District next contended that additional evidence showed unambiguously that it was not required to compensate teachers for ELA training beyond that year because (1) ELA training was a special condition of employment and (2) the parties’ bargaining history indicates that any requirement to compensate teachers for ELA training was purposely excluded from the CBAs. First, the CBAs were ambiguous regarding whether ELA training is a “special condition” regarding assignment of the teacher, requiring the teachers, not the District to pay for the training. Second, the District’s past practice of paying teachers for ELA training supported DCTA’s position that the CBAs entitled teachers to receive pay for ELA training.Therefore, the question was properly given to the jury.

The District also asserted that the trial court erred in not precluding recovery of damages that accrued before October 24, 2007, which was six years before the case was filed. The statute of limitations for breaching a CBA is six years. The District stopped paying teachers for ELA training starting with the 2007–08 school year, which began on August 13, 2007. DCTA filed its complaint on October 24, 2013. The trial court did not commit reversible error in deciding to award damages for the complete Fall 2007 semester.

Finally, the District contended that DCTA should have been barred from any relief for the 2008–09 school year and beyond because it failed to exhaust administrative remedies for those years. DCTA filed a grievance only for the 2007–08 school year, which was under the 2005–08 CBA. Further efforts by DCTA to achieve payment for ELA training through administrative remedies would have been futile, and the trial court did not err in this finding.

DCTA, in its cross-appeal, contended that the trial court erred in giving the jury special interrogatories to decide whether teachers under the ProComp system were exempt from receiving extra pay for ELA training. Because competent evidence supported the assertion, the trial court did not abuse its discretion in allowing the jury to determine whether teachers under the ProComp agreement forfeited their entitlement to compensation for ELA training.

The final judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Federal Arbitration Act Provides Interlocutory Jurisdiction in Limited Circumstances

The Tenth Circuit Court of Appeals issued its opinion in International Brotherhood of Electrical Workers v. Public Service Company of Colorado on Tuesday, December 9, 2014.

In 2009, the International Brotherhood of Electrical Workers (Union) and Public Service Co. entered into a Collective Bargaining Agreement covering Union members who were Public Service employees. Public Service unilaterally amended the agreement approximately two years later, affecting prescription drug prices for retirees. The Union followed dispute procedures and eventually demanded that the issue be submitted to arbitration. Public Service refused, so the Union sued the company and asked the district court to stay the proceedings and compel arbitration. The district court denied the Union’s motion, and it appealed.

The Tenth Circuit first questioned its jurisdiction to hear the interlocutory appeal. The Tenth Circuit found that the instant appeal fell within one of the FAA’s exceptions providing for interlocutory appeals pursuant to Tenth Circuit case law and Supreme Court precedent in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

Addressing arbitrability of the issue at suit, the Tenth Circuit determined that the Collective Bargaining Agreement did not cover disputes related to retired workers, only to current employees. The Union argued the district court failed to apply the presumption in favor of arbitrability, but the Tenth Circuit disagreed, finding instead that the court evaluated the presumption and held it inapplicable. The Union also argued that the district court erred by addressing the underlying merits of the dispute, but the Tenth Circuit examined the record and found no evidence of merit review.

The Tenth Circuit affirmed the district court’s order denying arbitration. Judge Hartz concurred with the finding of jurisdiction but dissented with the panel’s finding that the dispute was not arbitrable.

Tenth Circuit: Threat to Hire Permanent Replacements Not Enough to Invalidate Entire Lockout

The Tenth Circuit Court of Appeals issued its opinion in Teamsters Local Union No. 455 v. National Labor Relations Board on Wednesday, August 27, 2014.

Harborlite, Inc. locked out union members during a collective bargaining dispute. Harborlite threatened to hire permanent workers to replace the locked out union members, and the Teamsters brought a claim with the National Labor Relations Board. The NLRB ordered Harborlite not to make future threats of termination and to post a notice to that effect. Teamsters appealed, alleging that the NLRB should have held the entire lockout unlawful and awarded back pay.

The Tenth Circuit first addressed the Supreme Court’s recent ruling in NLRB v. Noel Canning, 134 S.Ct. 2550 (2014), and found it had jurisdiction, since the NLRB appointment at issue was made during a Senate recess that was longer than the period specified as problematic by the Court.

Turning to the merits of the appeal, the Tenth Circuit could not support the Teamsters’ contention that the lockout became unlawful when Harborlite threatened to hire permanent replacements. The threat did not cause the Teamsters to change their position, and it was not acted upon. A mere threat and nothing more was not enough to convert an otherwise legal lockout to an illegal one. The petition to review was denied.

Tenth Circuit: Action to Vacate Arbitration Award Untimely

The Tenth Circuit Court of Appeals published its opinion in United Food & Commercial Workers International Union v. King Soopers on Friday, February 28, 2014.

The United Food and Commercial Workers International Union, Local No. 7 (the Union) sued King Soopers, Inc. under § 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185, to enforce an arbitration award. The United States District Court for the District of Colorado ruled that the award did not draw its essence from the Union’s collective bargaining agreement (CBA) with King Soopers and refused to enforce it.  The Union appealed.

The Tenth Circuit reversed. This appeal was controlled by the court’s decision in Babcock & Wilcox, 826 F.2d 962. Although King Soopers could have brought a timely action to vacate the award on the ground adopted by the district court, it did not do so. The passing of the 90-day time limitation period for an action to vacate an arbitration award completely barred, in a subsequent confirmation proceeding, the raising of defenses that could have been raised as grounds to vacate the award. King Soopers could therefore not raise that defense against the Union’s action to enforce the award. For the same reason, the court also held that King Soopers could not raise the defense that the arbitrator lacked authority to impose a remedy.

Based on the untimelinessof King Soopers’ challenge, the Tenth Circuit REVERSED with instructions to enforce the award.

Tenth Circuit: Arbitration Award in Favor of Helicopter Pilot Affirmed

The Tenth Circuit Court of Appeals published its opinion in Air Methods Corporation v. OPEIU on Tuesday, December 3, 2013.

This case arose out of an arbitration award granted in favor of a helicopter pilot whom plaintiff Air Method Corporation had terminated following an incident in April 2010. The pilot, Jeff Stackpole, is a member of defendant Office and Professional Employees International Union, Local 109 (“OPEIU Local 109”). Mr. Stackpole was represented by OPEIU Local 109 throughout the arbitration process. After the arbitration award was granted in Mr. Stackpole’s favor, plaintiff filed a complaint against defendants Office and Professional Employees International Union (“OPEIU”) and OPEIU Local 109 in the United States District Court for the District of Colorado seeking to vacate the award. On cross-motions for summary judgment, the district court ruled in favor of defendants, thereby upholding the arbitration award. Plaintiff appealed.

The standard that courts apply to arbitral awards is among the narrowest known to the law. The Tenth Circuit’s review was extremely deferential, and it is with this deference toward the arbitrator’s award that the court considered plaintiff’s appeal.

The court initially considered whether the arbitrator’s award impermissibly altered or removed language from the parties’ collective bargaining agreement contrary to both a provision in the agreement forbidding arbitrators from modifying terms of the agreement and to Tenth Circuit law. Plaintiff argued there were three primary ways in which the arbitrator’s award impermissibly altered, ignored, or removed language from the collective bargaining agreement. The Tenth Circuit found none of these arguments persuasive. First, plaintiff argued the award failed to consider whether Mr. Stackpole’s actions qualified as “serious misconduct” for which “a Pilot may be immediately removed from the payroll and suspended or discharged without pay.” Second, plaintiff argued the arbitrator’s award impermissibly altered the collective bargaining agreement to require a pilot to engage in “willful and egregious” misconduct before he would be subject to immediate discharge. Third, plaintiff argued the arbitrator impermissibly ignored Section 37.3 and effectively removed it from the collective bargaining agreement, with the result that his award was contrary to the express language of the agreement. The court concluded that none of the alleged alterations or omissions of the collective bargaining agreement rendered the arbitrator’s award contrary to the express language of the agreement, nor did they violate the agreement’s proscription against modifying its terms. Therefore, the arbitration award drew its essence from the collective bargaining agreement and was upheld.

Second, plaintiff argued the arbitrator “intentionally disregarded and thus violated the clear, specific language of the contract, and created an escape hatch through which he could dispense his own brand of industrial justice.” However, the arbitrator found Mr. Stackpole had violated a company policy, which was found in the General Operations Manual and was closely related to Federal Aviation Regulations, and subjected him to a six-month suspension without pay as a result. Therefore, the Tenth Circuit held that plaintiff’s argument that the arbitrator ignored provisions requiring pilots to comply with company rules and policies and the Federal Aviation Regulations lacked merit.

Finally, the court held that the arbitrator’s award did not violate a clear public policy.


Tenth Circuit: Employees Constituted Management and Therefore Did Not Consent to Arbitration Under the Collective Bargaining Agreement, Which Was Aimed at Non-Management Employees

The Tenth Circuit Court of Appeals published its opinion in Communication Workers of America v. Avaya on Tuesday, September 11, 2012.

In March 2010, Communication Workers of America (CWA) commenced a union organizing drive aimed at Avaya “backbone engineers.” Avaya objected to the drive. A Neutrality Agreement (appended to the parties Collective Bargaining Agreement), governed union organizing efforts aimed at “non-management employees.” Avaya argued its backbone engineers were management, and refused arbitration. CWA filed a complaint in District Court to compel arbitration. After cross-motions for summary judgment, the District Court granted CWA’s motion to compel arbitration. Avaya appealed.

The Tenth Circuit stated the case required reconciliation of two competing principles: (1) courts must evaluate the threshold question of whether the parties consented to arbitration; versus (2) courts making this determination are not to rule on the merits of the underlying claims. The Tenth Circuit concluded that the Court’s duty to determine whether the parties intended the dispute to be arbitrable trumps its duty to avoid reaching the merits.

Without a judicial determination of arbitrability, the scope of the arbitration clause was determined by the pleadings. The Tenth Circuit concluded the record was clear that Avaya employees constituted management. Accordingly the record showed the parties never consented to submit the dispute of the backbone engineers to arbitration. REVERSED and REMANDED.