Court Orders Arbitration Of 15 Grievances

The Communications Workers of America represents corrections officers working for the Lexington–Fayette Urban County Government. When the Employer refused to process 15 separate grievances to arbitration, the CWA sued, seeking an order forcing the employer to arbitrate.

The Kentucky Court of Appeals sided with CWA and ordered arbitration. The Court found that “it has been established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.

“In the case at bar, the 15 grievances submitted by CWA addressed: 1) Promotions; 2) suspension/discipline; 3) interference with employee attendance at Union meetings; 4) failure to recognize Union grievances; 5) failure to recognize Union as bargaining agent; 6) gender discrimination in acceptance of grievances; 7) interference with Union business; 8) failure to have employee appreciation day; 9) requiring Union members to use time-clocks as a retaliatory tactic; 10) failure to notify Union of job vacancies; 11) discrimination in transferring employee to new department; 12) wrongful termination; 13) failure to follow involuntary transfer procedure; 14) disparity in providing salary stipend to certain employees; and 15) failure to arbitrate grievances pursuant to the contract.

“The contract itself says that ‘a grievance is a difference or dispute between an employee and the employer regarding the meaning, interpretation or application of the express terms of this Agreement, a violation of the County Charter, other applicable law regarding employment, or a disciplinary action.’ The contract contains 36 articles covering a variety of topics, including management rights, non-discrimination, CWA business, promotional vacancies, disciplinary procedures, and salary schedules. The 15 grievances indicate a specific employee, or the CWA on behalf of its members, asserted that the employer’s conduct in each instance was not authorized under the contract. We view such challenges as disputes ‘regarding the meaning, interpretation or application of the express terms of the agreement,’ as the CWA and the Employer obviously have conflicting interpretations of the rights afforded by the contract. We are not persuaded by the employer’s argument, as it clearly indicates the parties have conflicting interpretations of the rights afforded the Employer; consequently, the issue is appropriate for arbitration.”

The employer also argued that many of the grievances were not arbitrable, citing the fact that they were not processed in a timely fashion or had other procedural defects. Those arguments, the Court found, should be made to an arbitrator: “As the United States Supreme Court explained, procedural questions which grow out of the dispute and bear on its final disposition are presumptively not for the judge, but for an arbitrator. In the absence of an agreement to the contrary, issues of substantive arbitrability are for a court to decide and issues of procedural arbitrability, i.e., whether prerequisites such as time limits, notice, laches, estoppel, and other conditions precedent to an obligation to arbitrate have been met, are for the arbitrators to decide.”

Communications Workers of America, CWA Local 3372 ex rel. McCoy v. Lexington-Fayette Urban County Government, 2011 WL 6146203 (Ky. App. 2011).

This article appears in the February 2012 issue.