By Jim Cline and Geoff Kiernan
In the City of Bay City, a arbitrator ruled that Michigan Fire Department’s unilateral implementation of a new social media policy for firefighters was appropriate under the management rights clause as it was within managements purview to give employees guidance on their conduct. However, the arbitrator did find the provision which required firefighters to report violations of the policy or else face discipline as being unreasonable and therefore unenforceable.
After affording the Union an opportunity to negotiate with the City over any new rule or regulation, the contract allowed the city to implement that rule unilaterally. The union was then allowed to arbitrate the “reasonableness” of that rule. It was the union’s positions that while the city may be allowed to prohibit certain speech, their right to do this is not absolute. The union held that many of the provisions in this policy are per-se unreasonable because they have a chilling effect on their member’s rights as both employees and as citizens. The city held that under the management rights clause it has the ability to create certain departmental rules and regulations, and require employees to comply with them. They held that this policy is narrowly tailored and reasonable.
The arbitrator largely agreed with the city, noting that he only could decide if the rule itself was “reasonable.” He explained that the reasonable standard is largely subjective and is generally a low burden. The Social Media Policy, he explained, is generally an appropriate concern for the employer. However he explained that the issue for Social Media Policy is not in how the policy was written, but in how it could be enforced. He explained:
It is entirely possible that the provisions of this policy applied in one case might be found proper and yet in another case upon the circumstances found to be unreasonable. The issue then is not in the promulgation of the rules, but rather in the application and enforce and in this regard the union has a right to object on behalf of its individual members.
Essentially the arbitrator explained that the rule itself is not unreasonable as written, however it could be interpreted in an unreasonable manner, in which case the union would be free to file a grievance. The arbitrator did find one aspect of the policy to be unreasonable, the clause which would require employees to notify to department when they saw violations of this policy. The arbitrator explained:
It seeks to require employees to report the actions of other employees…this is no right of the employer to require, in fact it very may well interfere with the rights of union members among themselves…it is for the employer to conduct investigations…it is not the obligation of the union or its members to raise such issues.
Since the arbitrator found this provision of the policy to be “unreasonable”, he held that employer may not enforce this provision. However, the bulk of the policy remained in place, waiting to be fleshed out in future potential grievances.
Normally policies that can result in discipline are negotiable but this CBA contained a common limited waiver provision which allowed management to implement such policies but only on the condition that they were reasonable. This case demonstrates the “double edged” sword involved in in such management rights clauses: You can challenge them but the challenge may be hard to win.
On the one hand, such clauses, as revealed here, do allow management to move forward to adopt working condition policies to which the union might object and might otherwise seek to modify during bargaining. Here the policy concerned an important subject which the union surely would have wanted to negotiate – social media. A requirement that the policies implemented by reasonable, though, provides at least some ability to challenge those policies.
This arbitration here revealed a couple aspects of this approach that are important to bear in mind when negotiating such language. First, the requirement that the language be reasonable is not a very high bar. Arbitrator’s tend to assume that policies are reasonable and more often than not defer to management’s judgment on close call cases. Even here, though, by grieving this the union was at least able to beat back one provision in the rule that overreached.
The other point to bear in mind, as indicated by this arbitrator, is that even if a rule is upheld as reasonable on its face, this still does not bar the union from challenging the rule as unreasonable in the application in a specific situation.
