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Employers Cannot Apply Tougher Policies Retroactively to Employee Covered by CBA

Sending employers a strong message, a federal court in Minnesota has ruled that even an arbitrator’s award may be overturned where the employer seeks to enforce a disciplinary policy that was not in place when the employee’s alleged misconduct took place. National Football League Players Association (on behalf of Adrian Peterson) v. the National Football League, No. 14-4990 (DSD/JSM) (D. Minn., Feb. 26, 2015).

In a much-publicized news story, Minnesota Vikings running back Adrian Peterson was disciplined harshly by the NFL in the wake of public outcry over what many decried as the NFL’s excessively lenient application of its personal conduct policy toward Baltimore Ravens running back Ray Rice. Rice received only a two-game suspension for knocking his wife unconscious in a hotel elevator. Apparently in response to the unfavorable reaction his action received, NFL Commissioner Roger Goodell then changed the personal conduct policy, toughening the sanctions NFL players would receive for being involved in criminal offenses. Goodell said the existing League policy was deficient.

On August 28, 2014, the Commissioner issued an enhanced personal conduct policy increasing the sanctions for domestic violence and sexual assault incidents. The issue in this case arose because Peterson’s alleged misconduct, the injury to his child while Peterson was disciplining him, occurred in May 2014, well before the new policy was drafted or adopted. 

Nevertheless, Commissioner Goodell enforced the new policy against Peterson, suspending him for the remainder of the 2014 season, fining him six weeks’ pay, and ordering him to participate in counseling and treatment. Commissioner Goodell also warned that a failure by Peterson to cooperate during counseling or with the NFL’s supervision of his suspension could result in a lengthier suspension without pay. 

The National Football League Players’ Association (NFLPA) appealed the discipline and an arbitrator was appointed to resolve the dispute. Affirming Commissioner Goodell’s discipline in all respects, the arbitrator noted the Commissioner had “broad discretion” to impose discipline under the new personal conduct policy, which implicitly meant that he could impose discipline under it retroactively. The arbitrator also found, however, that the discipline imposed on Peterson was greater than that which was imposed in previous cases under the earlier personal conduct policy that was in effect when Peterson committed the misconduct. 

The NFLPA asked the U.S. District Court in Minnesota to vacate the arbitrator’s award against Peterson. The Union contended that the arbitrator’s award failed to draw its essence from the collectively bargained agreement between the NFL and the NFLPA and that the arbitrator exceeded his authority in affirming the Commissioner’s discipline based on the new personal conduct policy. The court agreed with the Union.

Noting that an arbitrator’s decision usually is given great deference by courts, the court found the former personal conduct policy (imposing a two-game suspension in a case like Peterson’s) was the “industrial common law” and the “law of the shop.” That is, prior interpretations and applications of the personal conduct policy were to be considered terms of employment between the union and the employer just as much as the collective bargaining agreement itself. Thus, they should have been given proper consideration in addressing Peterson’s misconduct.

The court found that in imposing and affirming the discipline under a new personal conduct policy that did not exist when Peterson committed his misconduct, the NFL’s and arbitrator’s rulings did not draw their essence from the collectively bargained terms between the NFL and the NFLPA. Therefore, on this ground alone the NFLPA was entitled to have the arbitrator’s award vacated, the court said.

On whether the arbitrator’s decision exceeded his authority, the NFL argued that the NFLPA had put in issue whether Peterson would have received the same punishment under the old personal conduct policy that he received under the new policy. The court disagreed. Rather, the court found the arbitrator had exceeded his authority in concluding that Peterson’s conduct would have resulted in the same punishment under the old personal conduct policy as under the new policy. The court remanded the case to the arbitrator for further findings based on its rulings. 

Lessons Learned: First, in general, employers should enforce only those policies in effect at the time alleged misconduct took place. Courts often look with disfavor on an ex post facto application of a new disciplinary rule, at least where that rule is more harsh or exacting than an earlier version. Second, employers must pay close attention to how other employees have been treated in the past for similar misconduct. Discipline for recent misconduct should be consistent with discipline for past misconduct of a similar nature, at least absent an intervening, prospective change in a rule with proper notification to affected employees. Finally, employers should remember that the collectively bargained terms for employment include not only what is in the collective bargaining agreement, but also may include the history of enforcement of those terms, and the negotiating history for those terms. As a result, employers, both during collective bargaining negotiations and in subsequent interpretations and applications of collectively bargained terms, should recognize that what they say and do may become part of collectively bargained terms for employment. Comprehensive notes on what is said at negotiations are a must. Maintaining a database of disciplinary records pursuant to various employer policies also is helpful.

Jackson Lewis P.C. © 2020National Law Review, Volume V, Number 63


About this Author

Kurt J. Erickson, Jackson Lewis, class action litigation attorney, discrimination charges lawyer

Kurt J. Erickson is a Principal in the Minneapolis, Minnesota, office of Jackson Lewis P.C. He has represented both public and private employers in state courts, federal courts, and in administrative proceedings before state administrative tribunals.

Mr. Erickson's experience also includes litigating class action cases brought by the Equal Employment Opportunity Commission (EEOC), as well as negotiating resolutions of discrimination charges, including class action discrimination charges, prosecuted by the EEOC.

Gina K. Janeiro, Employment Labor Attorney, Jackson Lewis Law firm
Office Managing Principal

Gina K. Janeiro is Office Managing Principal of the Minneapolis, Minnesota, office of Jackson Lewis P.C. She is certified as a Labor and Employment Law Specialist through the Minnesota State Bar Association.

Ms. Janeiro practices in all aspects of employment law and advises and represents clients in the areas of discrimination and harassment, disability management, employment contracts, wage and hour compliance, commission claims, noncompetition litigation, drug testing law, defamation, whistleblower and in closely-held corporation and partnership disputes. Ms. Janeiro has assisted clients obtain appropriate and effective resolution of these disputes through counseling, appeals, mediations, arbitrations, administrative hearings and all other aspects of litigation in Minnesota and other parts of the country.

Philip B. Rosen Jackson Lewis  Preventive Practices Lawyer & Collective Bargaining Attorney

Philip B. Rosen is a Principal in the New York City, New York, office of Jackson Lewis P.C. He is a member of the firm's Board of Directors and co-leads the firm's Labor and Preventive Practices Group. He joined the firm in 1979 and served as Managing Partner of the New York City office from 1989 to 2009.

Mr. Rosen lectures extensively, conducts management training, and advises clients with respect to legislative and regulatory initiatives, corporate strategies, business ethics, social media, reorganizations and reductions-...

Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
Office Managing Principal

Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major...

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