Friday, November 9, 2012

Arbitrator finds firefighter minimum staffing grievance not subject to arbitration


The contract between the City of Pawtucket, Rhode Island and the Pawtucket Firefighters union called for a minimum staffing level of 30 firefighters on duty at all times. Because of fiscal constraints, the City unilaterally reduced the agreed upon staffing levels "for overtime purposes only"; i.e. it would not utilize overtime to bring the staffing to the contractually called for minimum. It also reduced the deployment of firefighting equipment below the level called for by the contract. The Union grieved these actions and sought to arbitrate the dispute. The City challenged the arbitrability of the grievance, asserting that the deployment of particular numbers of fire apparatus  and level of service decisions involved matters of "inherent management prerogative" and "entrepreneurial control", neither of which is appropriate for collective bargaining. The Union maintained that the City's actions involved mandatory subjects of bargaining and breached the clear and unambiguous language of the collective bargaining agreement.

Arbitrator Marc Greenbaum found the Union's grievance "not substantively arbitrable".  Arbitrator Greenbaum observed:

In what seems like ancient history, the role of the arbitrator was understood to be limited to contractual interpretation. The arbitrator’s expertise was in the "law of the shop", not external law. The previously impermeable barrier between contact and law has, however, been eroded by numerous factors. The increasing regulation of individual employment rights has poked holes in the barrier. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). A similar result has flowed from judicial decisions deeming issues routinely bargained in the private sector, as outside the scope of public sector collective bargaining and arbitration.


While rejecting the City's arguments that the language of the contract could be interpreted as not requiring the City to maintain minimum levels of equipment and personnel, the Arbitrator concluded that "Rhode Island courts would find that the promises contained in Article XVI of the Agreement cannot be enforced in the arbitral forum." Whether called matters of entrepreneurial control, or inherent management prerogative, the Arbitrator noted that Rhode Island courts had limited a public employer's ability to contract away certain discretionary management decisions.

The Arbitrator recognized that the Union and its members may feel cheated "by a result that effectively renders a contract provision that was freely negotiated with the City unenforceable in arbitration,"  but determined that the judicial decisions trump the collective bargaining process.

Ethan Shorey reports on the decision for the Valley Breeze, Arbitrator rules for the city on minimum fire manning and links to the Arbitrator's award.

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