Retroactive cba makes post expiration grievance arbitrable

  The cba between the City of Beverly, MA and AFSCME Council 93 had a term from 1992-2002. The agreement also contained an evergreen clause that effectively extended all contract provisions until a successor agreement was entered into. In Boston Housing Auth. v. National Conference of of Firemen & Oilers, Local 3, decided in 2010,  the Mass. Supreme Judicial Court held that evergreen provisions which extended the cba beyond three years were barred by statute.

In 2003, before a successor agreement had been entered inti,  a bargaining unit employee of the City was dismissed. The Union grieved and ultimately arbitrated the dispute. The arbitrator, in an award issued after the Court's decision in Firemen & Oilers, determined that the Court's decision should not be applied retroactively and sustained the grievance. The City sought to set aside the award and the Superior court vacated the decsion, concluding that there was no contract in effect at the time of the dismissal and that the Arbitrator was thus without authority to rule on the dispute.

On the Union's appeal, the Appeals Court  reversed and upheld the Arbitrator's decision.

Initially the Court acknowledged  that it is "axiomatic" that if there is no contract in effect requiring arbitration at the time a disputed event occurs an arbitrator is without jurisdiction to arbitrate the matter. After discussing whether the Firemen & Oilers decision should be applied to preexisting disputes, the Court found it unnecessary to resolve that issue. It concluded:

In any event, although we tend to agree with the arbitrator that Firemen & Oilers does not apply retroactively, and, therefore, would not invalidate the evergreen clause included in the 1999-2002 CBA, we need not decide the issue. The 2002-2005 CBA, by its plain terms, applied to [Grievant's]'s termination — namely, the CBA was explicitly intended to operate retroactively to July 1, 2002, even though it was executed in June, 2005, and the instant dispute concerning [Grievant's] termination arose during the life of that CBA. The parties' explicit intention to render the CBA retroactive belies the city's argument that it would be unfair or unjust to apply the CBA to [Grievant's] termination. If we were to conclude that the CBA does not have retroactive effect, we would undermine the parties' clearly stated intentions; in accordance with basic rules of contract interpretation, we refuse to do so here.

The  decision of the Appeals Court can be found here.

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.

Statute incorporated into collective bargaining agreement subject to arbitration

The collective bargaining agreement between the Town of Saugerties and the Town Of Saugerties Policeman's Benevolent Association contained a provision that the Town "agrees to comply with the requirements of Section 971 of the Unconsolidated Laws of New York." That statute limited the ability of the Town to require a police officer to work in excess of 8 hours in a 24 hour period. The Union sought to arbitrate a dispute about the application of this provision, and the Town sought a court order staying the arbitration. The Town argued that resolution of the grievance would require application or interpretation of the terms of the statute and maintained that public policy would not allow an arbitrator to do so.

Affirming the lower court, the New York Appellate Division rejected the Town’s claims. It noted that the incorporation of the statute makes it a substantive provision of the agreement, and that no public policy precluded its interpretation by an arbitrator.  As it was clearly covered by the arbitration provision of the agreement there was no basis for a stay. 

The court’s decision can be found here.

Management rights clause properly subject to arbitral review

          The Eighth Circuit has affirmed enforcement of an arbitration award finding that Breckenridge O'Fallon violated its labor agreement by inconsistently applying its return to work policy. Breckenridge O'Fallon, Inc. v. Teamsters Local Union No. 682.

          Grievant was injured on the job and was out for an extended period. After a workers compensation physician released him to return to work , Breckenridge required him to complete a functional capacity evaluation (FCE) pursuant to its return to work policy. The FCE physician found him unable to return to work, as did another physician selected by grievant from a list provided pursuant to the policy.

          Grievant's personal physician subsequently released him to return to work without restrictions but Breckenridge refused to schedule a second FCE. Grievant and the Union claimed that Breckenridge was inconsistently applying its policy and ultimately arbitrated the issue.

        The arbitrator concluded that while the company had the contractual right to establish reasonable rules, including those relating to FCEs, it had to apply those rules consistently. Finding inconsistent enforcement, the arbitrator ordered the company to schedule grievant for another FCE and to restore his seniority if he passed.

          Breckenridge sought to set aside the award, arguing that it failed to draw its essense from the parties CBA. The district court rejected this claim and the circuit court affirmed.  The court noted that the case was an unusual one because "the grievance as resolved by the arbitrator involved only the CBA's management rights provision. " Nevertheless, the court concluded:

                    When a management rights provision is expressly limited to the right to establish            reasonable work rules, determining whether the employer acted reasonably in adopting and applying its work rules is within the scope of the arbitrators authority to decide a particular grievance the parties have submitted to him.


          The court rejected the company's challenge to the merits of the claim, observing that the correctness of the arbitrator's decision was beyond the scope of their limited review. The court also rejected the company's claim that the award was contrary to the employer's right under the FMLA to require the employee to obtain a third medical opinion when there were conflicting opinions, noting that this right was permissive rather than mandatory, and that nothing in the FMLA diminished the obligation of an employer to comply with its collective bargaining agreement.


         

Rite Aid must comply with Card Check Agreement

A court has enforced an award of Arbitrator Richard Kasher, requiring Rite Aid to comply with the terms of a neutrality and card check agreement between Rite Aid and UFCW Local 1360. Rite Aid of New Jersey Inc. v. United Food and Commercial Workers Union, Local 1360.

Rite Aid and Local 1360 had entered into an oral card check/neutrality agreement in November of 1999. The parties subsequently entered into a series of collective bargaining agreements, all of which contained recognition language including an after acquired stores clause. The clause extended the bargaining unit to stores added via an NLRB election or “…other demonstrations of the Union status acceptable to the employer…” Rite Aid recognized the Union for approximately sixty three stores through the card check procedure, but later began insisting on an NLRB election. The union filed a grievance, claiming that the employer had improperly refused to accept the card check procedure, in contravention of the agreement and past practice. The arbitrator sustained the grievance, and Rite Aid went to court seeking to have the award vacated. Rite Aid argued, inter alia, that the arbitrator “failed to draw from the essence of the 2005 CBA and exceeded his power by amending or altering the 2005 CBA”.

The court rejected Rite Aid’s efforts and enforced the award. Noting the limited review of an arbitrator’s award, the court held that arbitrator’s award was grounded in the contract, and that the arbitrator could conclude that the language of the recognition clause was ambiguous and that the employer had agreed to accept the card check procedure. While it noted that it found Rite Aid’s interpretation of the CBA to be more persuasive, it had no basis to set aside the award.

Update: The Third Circuit's decision affirming the District Court is discussed here.