By: Jim Cline and Geoff Kiernan
In the City of Markham, an Illinois arbitrator ruled that the city violated its CBA by assigning members of specialty units (traffic detail, detectives, community service, etc.) to fulfil the minimum staffing requirements of four full-time patrol officers. This case because the contract provision at issue was not developed during bargaining decided in interest arbitration.
It was undisputed that the CBA mandated that four full-time officers were required for patrol on any given shift. The parties disagreed, and the previous interest arbitration was largely silent, as to if that required four full-time patrol officers, or if the management rights provision of the contracts allowed for specialty units to be reassigned to fulfil that requirement.
The Union argued that while the plain language of the CBA may have been silent as to whether patrol officers were required, there were several footnotes in the original interest arbitration decision which laid out how the city would comply with the award. These footnotes state that four patrol officers are needed to cover any shift. Therefore the union argued that if a patrol member calls out sick the CBA, together with the footnotes of the award, required the city use a patrol officer, rather than an officer from a specialty unit, to fill the position. The union testified that this reading of the contract was necessary as matter of safety for the officers on patrol. They stated that the officers assigned to specialty duty did not respond calls, even if they were assigned to, because their respective responsibilities frequently meant they were unavailable for “hot calls.”
The city responded by asserting that under its management rights provision it had the authority to reassign officers to different duties, including patrol duties. It argued that all officers were required to respond to “hot calls,” thus there is no proof that having specialty officers respond to patrol calls has ever comprised the safety of the patrol officers. Furthermore the city contended that since the plain language of the CBA is clear there should be no need to use extrinsic evidence, such as the arbitration decision footnote, to interpret the contract provisions. The city argues it would not have adopted the interest arbitration decision if it would have limited its right to assign police resources.
The arbitrator did not agree with the city’s reading of the original interest arbitration decision finding that:
Despite the employers best efforts, I do not find that the [contract] may be read without consideration of footnote 14 of the Interest Opinion and Award. This is so precisely as the Union has suggested, because it is well established that an arbitrator’s award in interest arbitration becomes part of the parties’ collective bargaining agreement…the City was required to abide by the terms and conditions of Arbitrator Hill’s 2007 award.
The arbitrator found that the provision explicitly mentions that the City fulfill is staffing obligations through the use of patrol officers as “cover officers.” If the previous arbitrator would have wanted to allow the City to fulfil its obligations by using non-patrol officers, he clearly could have. Thus by assigning patrol work to specialty officers the city was reinterpreting the contract in a way that disregarded the intent of the original arbitrator.
The arbitrator noted that this was a special case because normally the fundamental rule of contract interpretation is to determine the intent of the parties when drafting the contract. However, when an interest arbitrator has crafted the language an arbitrator’s intent must be considered to, as the Arbitrator explained:
That it is in the light of the special circumstances of the interest arbitration process, namely, that the actual transaction is an imposed provision, not one bargained for at arm’s length by the Union and this Employer. What this means in this case is that extrinsic evidence of the Interest Arbitrator’s intent is relevant and admissible. In fact, such evidence is…critical to a proper determination of what the words mean.
Thus the arbitrator found that it was clear from extrinsic evidence that the interest-arbitrator intended that four full time officers, meant four full time patrol officers all of whose primary duty were patrolling. The Unions grievance was sustained.
In contract interpretation cases the parties’ intent is of paramount importance, especially where contract language is ambiguous. This case addresses a less common yet important question of the role of intent when the language is forced upon the parties through interest arbitration.
This grievance arbitration decision adopts the sensible approach that when the language is imposed by an interest arbitrator the evidence of intent must be acquired from the interest arbitration decision language rather than any particular statements made by the parties in negotiations. Interest arbitration effectively supplants the normal bargaining process.
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