Significant NAGE Arbitration Win Makes Retiree Whole for Lost Benefits
September 16, 2009
An arbitrator has ruled that the Commonwealth's Division of Insurance did not have authority to take two bites at the apple when it requested and was granted reopening of a tripartite panel hearing that subsequently overturned the panel's original decision. With this NAGE arbitration victory, a retired member of Unit 6, Local 207 was ordered to be made whole for any benefits lost as a result of the illegal second hearing. NAGE attorney Richard Waring successfully represented the union at arbitration.
"Attorney Waring did an outstanding job with this case and we congratulate him for his exceptional work," said Theresa McGoldrick, president of NAGE Local 207, which represents the grievant’s bargaining unit. "This was a huge win because the decision of this arbitration will have a lasting effect throughout the grievant’s retirement."
In May, 2006, the grievant retired from his position with the Division of Insurance. Prior to his retirement, he had received a "below" expectations on his 2005 annual performance evaluation—a rating that would negatively affect his pension. He appealed the "below" rating to a tripartite panel in accordance with the bargaining unit contract. Tripartite panels, as defined by the contract, consist of a union representative, a management representative, and a neutral designated by the chair of the state Board of Conciliation and Arbitration. The panel is charged solely with determining whether a "below" performance rating is justified. Contract language states that decisions of the panel are final and binding.
And it's that language that was the seed for this case.
On April 25, 2007, the neutral on the panel mailed copies of a decision sustaining the grievant’s appeal to both the union rep and the management rep. Both the neutral and the union rep signed the decision; management did not. With a 2-1 majority, the decision was final and binding in accordance with the contract.
However, two days after the decision was mailed, the employer filed a motion to reopen the hearing to consider excluded evidence, arguing it had a right do so because it had never signed the original decision mailed by the neutral. The neutral, erroneously in hindsight, allowed the hearing to be reopened, and this time, the "below" rating was upheld and the panel's new decision was signed by the neutral and the management rep.
The union signed this second decision in dissent and filed for arbitration, arguing in favor of case law that states that an executed and delivered arbitration panel's decision signed by a majority of the panel's members is final and binding.
The arbitrator ruled in favor of the grievant primarily on the basis of a legal doctrine called functus officio, which basically means that the tripartite panel had no right to act after its first decision because the first decision was final and binding. Once a decision has been made in a "final and binding" manner, the panel essentially ceases to exist, and therefore, can't entertain reopening.
The arbitrator wrote, "a majority of the panel indicated agreement with the first decision to reverse the "Below" rating by signing [the neutral’s] first decision in April 2007 ... There was no evidence that anyone retained any rights to reopen the matter after signing the decision.
"The remedy is to direct the Employer to make the grievant whole for lost benefits ..."