Thryv, Inc. v. International Brotherhood of Electrical Workers, Local 1269

Background

Thryv and the International Brotherhood of Electrical Workers, Local 1269, were parties to a collective bargaining agreement. A 2014 letter agreement allowed Thryv to propose or amend performance standards, required the parties to negotiate for up to 30 days, and allowed the Union to ask an arbitrator to review whether proposed standards were fair and reasonable.

Thryv implemented a performance improvement plan in June 2018. The Union challenged the plan, and the parties submitted to arbitrator David Weinberg whether Thryv violated the collective bargaining agreement or Section 8(a)(5) of the National Labor Relations Act, and what remedy was appropriate. In May 2019, the arbitrator found that Thryv had made two substantive changes to the plan without giving the Union the required bargaining opportunity. He ordered Thryv to rescind the plan, bargain over a replacement plan, and make whole employees adversely affected by the implementation.

In September 2018, Thryv had canceled its oral extension of the prior agreement and implemented its last, best, and final offer. That offer removed the earlier letter agreement’s procedures for negotiating and arbitrating a performance plan, while stating that the June 2018 plan was “in place.” Thryv later terminated five employees between January and March 2019 based on the plan. Thryv declined to reinstate them, so the Union initiated a second arbitration.

In March 2021, the arbitrator found that Thryv had not complied with the first award because it had not rescinded the plan, restored the prior situation, and begun new bargaining. He determined that the five employees had been fired for performance reasons under the plan and should be made whole for lost wages and benefits, with interest beginning on the date of the award.

Parties’ arguments

Thryv asked the court to vacate the second arbitration award. It argued that the last, best, and final offer created a separate performance plan, removed the contractual basis for arbitration, and made the first award’s rescission remedy moot. Thryv also argued that the award conflicted with the National Labor Relations Board’s rejection of the Union’s challenge to the last, best, and final offer.

The Union asked the court to confirm and enforce the award. It argued that Thryv had left the June 2018 plan in place rather than creating a new plan, and that the National Labor Relations Board’s decision did not address the performance plan.

Court’s analysis

The court applied summary judgment principles and the exceptionally deferential standard governing review of labor arbitration awards. Under that standard, a court generally may not set aside an award merely because it disagrees with the arbitrator’s interpretation of the contract or believes the arbitrator made factual or legal errors. An award may be vacated in circumstances such as when it does not draw its essence from the collective bargaining agreement, exceeds the issues submitted to the arbitrator, violates public policy, or was obtained through fraud.

The court concluded that the arbitrator reasonably interpreted the parties’ documents as leaving the June 2018 performance plan in place. The last, best, and final offer did not expressly establish a new plan, and Thryv’s contemporaneous letter stated that the June 2018 plan was still in place. Although some evidence supported Thryv’s view that a new plan had been created, the court could not reconsider the merits of the arbitrator’s decision under the governing deferential standard.

The court also held that the arbitrator had authority to provide remedies for harm that occurred after the collective bargaining agreement ended when that harm flowed from Thryv’s earlier violation during the agreement’s term. No later collective bargaining agreement had divested the arbitrator of authority. The court therefore upheld the arbitrator’s determination that the five employees were entitled to relief for terminations resulting from the improperly implemented plan.

The court rejected Thryv’s argument that the award conflicted with the National Labor Relations Board’s decision. The Union’s charge concerning the last, best, and final offer did not mention the performance plan, and the Board did not address the plan. Because the arbitrator interpreted the last, best, and final offer as assuming the continued validity of the June 2018 plan rather than creating a new one, the court found no conflict between the two decisions. The court did not decide whether the arbitrator also found a violation of the National Labor Relations Act or whether the Union had waived its challenge to the arbitrator’s authority.

Ruling

The court denied Thryv’s motion for summary judgment. It granted the Union’s motion for summary judgment except as to attorneys’ fees, confirmed the arbitrator’s March 4, 2021 award, and ordered Thryv to comply with that award in all respects. The court denied the Union’s request for attorneys’ fees, entered judgment in favor of the Union, and closed the case.