Arbitration, Management Rights and Public Policy

 Lawrence, Mass. Firefighters, Local 146 grieved the actions of the City of Lawrence in laying off a  dispatcher while retaining a mechanic with lesser seniority. The City rejected the grievance, claiming that the layoff of the mechanic would create a safety issue. The dispute was submitted to arbitration, and the arbitrator determined the City had breached the collective bargaining agreement by deviating from its practice of laying off employees in inverse order of seniority.

 The City sought to vacate the award, arguing that management of the fire department rests with the Chief, and "that with this responsibility comes the inherent right to make decisions regarding policy and staffing." The City maintained that this responsibility was particularly important in divisions  like the fire department, whose purpose was public safety. It claimed that the arbitrator exceeded his authority and that the decision invaded the City's "nondelegable" managerial prerogatives and violated public policy by putting the public at a safety risk. The Superior Court rejected these positions and confirmed the award. The Appeals Court has now similarly rejected the City's arguments and affirmed the lower court. City of Lawrence v. Lawrence Firefighters, Local 146, IAFF.

 The Appeals Court held that:

 While the city is correct that a decision to lay off employees is a nondelagable managerial prerogative, ...it is clear that a public employer may negotiate to follow certain procedures when such a decision is implemented, and the question whether the employer has followed these procedures is a matter subject to arbitration. 

The Court also rejected the City's public policy argument, finding "no 'well-defined' or 'dominant' public policy in favor of fire departments retaining mechanics over other department employees."

In contrast, in a decision also issued in August, the Mass Supreme Judicial Court overturned an arbitrator's award finding the City of Boston in violation of a contractual provision restricting the transfer of certain union representatives between stations or assignments.  City of Boston v Boston Superior Officers Association. The Court concluded that  assignment and transfer of officers within the Boston police department "are non delegable statutory powers of the Boston police commissioner ... and, accordingly, ... the grievance arbitrator exceeded his authority in reversing the officer's transfer."

A similar issue has been raised in Alaska, where the State is seeking to set aside an award of Arbitrator Janet Gaunt finding the State violated its cba with the Alaska Correctional Officers by changing the schedules of certain correctional officers from an eighty four hour, 7 days on/ 7 days off  schedule to a five day/ forty two hour schedule.

Applying a "context rule" of contract interpretation, Arbitrator Gaunt found that the management rights provision of the cba was ambiguous. Looking to the parties past practice, the Arbitrator concluded that the State could not unilaterally change the schedule. She ordered the State to make whole employees impacted by the change and to restore the previous schedule.

 The State has filed a complaint to vacate the award. It alleges that the award violates public policy in that "the Alaska Constitution provides that criminal administration shall be based upon the need for protecting the public, and the Commissioner of the Department of Corrections has the statutory and contractual authority to protect the public by determining the hours of operation of correctional facilities and assigning the work shifts accordingly..." It also claims that the cost of compliance with the Arbitrator's order to restore the previous shifts "is so great as to result in an attempt to supersede the constitutional and statutory authority of the Commissioner of DOC and intrude on core management rights of the Commissioner to expend the public funds in accordance with the laws of the State."

The Alaska Correctional Officers Association links to Arbitrator Gaunt's award here and the State's complaint to vacate the award 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.