Management rights, past practice and arbitrability

The Texas Fourteenth Court of Appeals has reversed the decision of a Texas District court and ordered the City of Orange to arbitrate a dispute about the involuntary assignment of a firefighter to the position of Fire Marshal.

The Orange Association of Firefighters claimed that the Chief had violated the parties' cba when he made an involuntary assignment rather than seeking volunteers. The Union maintained that the Chief's action was a deviation from past practice, and breached the "maintenance of standards" provision of the contract. That provision carried forward all economic benefits, privileges and working conditions in effect when the contract was signed unless continuation adversely interfered with normal operations of the fire department or was contrary to the cba. The City maintained that the contract's management rights clause reserved to the City the right to determine "the assigned work of employees" and the authority to "assign employee[s]."

When the City refused to submit the dispute to arbitration, the Union filed a declaratory judgment action seeking to compel arbitration. The District Court declined to compel arbitration, finding that the cba provided for the City's right to order an employee to accept the Fire Marshal position.

On the Union's appeal, the Court of Appeals reversed and ordered the City to submit the dispute to arbitration.

The Court noted that, while "the strong policy in favor of arbitration cannot serve to stretch a contractual clause beyond the scope intended by the parties," the dispute was properly one to be decided by an arbitrator. It observed:

The Association does not dispute the City’s contractually reserved rights to assign employees or determine the assigned work of employees, except as specifically limited by the Agreement. However, the Association’s grievance alleges the City’s violation of the Agreement’s "maintenance of standards" provision by altering its past practices of filling the position of Fire Marshal by voluntary assignment.
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Interpreting the Agreement to decide how these provisions interact is a matter that the parties expressly agreed to submit to a grievance and arbitration procedure. When, as in this case, the Agreement’s grievance procedures are broad, as encompassing "[a]ny controversy between the City and the [Association] or any employee concerning the interpretation, enforcement, or application of any provision of this Agreement," we presume the Association’s grievance is arbitrable absent any express provision excluding the particular grievance from arbitration.

Finding no express provision of the cba excluding a grievance challenging the City's claimed deviation from past practice from arbitration, the Court concluded that the dispute involved "interpretation, application or enforcement" of the cba and was properly subject to arbitration.

The Court's opinion can be found here.