Military leave, management rights and past practice-Arbitrator upholds grievance

Arbitrator Timothy Buckalew has sustained a grievance filed by New England PBA Local 550 claiming that the Worcester County, MA Sheriff's Department violated its collective bargaining agreement and past practice when it changed the method of compensating officers for weekend military drills.

The cba provided that officers were entitled to leave with pay of up to 17 days "for his/her annual tour of training duty." The evidence established that for at least six years officers were paid for weekend drills as well as summer annual training. In the summer of 2012  the Department stopped paying officers for weekend drills, based on a belief that the cba only provided for pay for annual training, not weekend drills.

The union grieved the dispute, and the matter was presented to Arbitrator Buckalew for resolution. Initially, the Department maintained that the dispute was not arbitrable, arguing that the management rights provision of the cba excepted from arbitration "the customary powers, authority and prerogatives of management ...including, but not limited to ...the allocation, scheduling and granting of all leaves ... " and provided that an exercise of a management right pursuant to the agreement was not subject to the grievance procedure. Arbitrator Buckalew rejected this position, observing that the express provisions of the contract governed military leave and that "[t]he existence of a contract clause covering the benefit is an express abridgement of management's rights ... and refutes the Employer's assertion that military leave is a matter solely of the Employer's discretion ... ."

On the merits, the Arbitrator determined that it was undisputed that the non payment for weekend drills represented a change in the administration of the cba. Finding no basis to conclude that the prior practice was contrary to state law, he upheld the grievance, noting:

The Employer has allowed paid leave for several years for weekend military training. That
payment was open and approved by the payroll department and the administration of the jail and
was not contested or questioned despite numerous instances of officers claiming the pay for
weekend drills. .... I find that the practice of treating weekend training as functionally the same as the annual tour training is long standing, repetitive and indicates a mutual understanding that Article 24 allowed such payments. ... . The failure to follow the established application of the contract violated Article 24 and shall be remedied by restoring the status quo and making whole officers who had unexpended earned military leave and were required to take unpaid days or to expend vacation or other leave to cover weekend drills.

NEPBA links to the Arbitrator's award here.