LANKFORD HOLDS THAT IT WAS NOT A VIOLATION FOR DOC TO UNDERTAKE NO EVALUATION OF ASSIGNMENT PAY BEFORE ITS ELIMINATION

Arbitrator Howell Lankford issued a perplexing and ultimately disappointing grievance arbitration decision yesterday that effectively changed his original interest arbitration award.  

In his original interest arbitration award, Lankford held that DOC must rationally evaluate the operational impacts of eliminating assignment pay. 

In the grievance arbitration decision, he held that the Department of Corrections was not required to do anything regarding the issue of assignment pay.  In fact, his decision of yesterday seems to acknowledge that DOC acted arbitrarily and capriciously when it decided to eliminate assignment pay for any affected employees: 

“Geo pay was eliminated by the Award itself.  The Department did not violate the CBA by deciding, arbitrarily and capriciously, to cease paying geo pay at the beginning of the contract period.  The grievance is dismissed.”

Oddly enough, the Department of Corrections did not even make this argument to the Arbitrator.  The Department implicitly acknowledged that its decisions about assignment pay (whether to eliminate it or reinstate it) could not be arbitrary and capricious because that is what Arbitrator Lankford originally ordered in the interest arbitration decision.  

In fact, at the grievance arbitration hearing, Arbitrator Lankford himself seemed to recognize this point:

"the dispute involves whether the Agency was arbitrary and capricious in a choice that I left to them under the terms of that award with the limitation that they could not choose to do or not to do something in an arbitrary and capricious fashion."

But when it came time to acknowledge that the Department’s failure to give any meaningful consideration to the assignment pay issue and its operational impacts prior to July 1, 2015 was arbitrary and capricious, Arbitrator Lankford did not hold the state accountable.

Arbitration decisions are generally not subject to an appeal process because the review standard is very narrow. We are evaluating our options in this regard.

No doubt, Lankford let the State off the hook in this case, but that doesn’t necessarily mean that he won’t issue a more favorable decision in our 2017-2019 interest arbitration case, if it should come to a hearing. Lankford is widely respected, viewed to be impartial and his past rulings reflect that.

I know this decision comes as a major disappointment to some of you. If you have questions or concerns, please do not hesitate to call me.