By Jim Cline and Troy Thornton
Arbitrator Matthew M. Franckiewicz found that the Employer, Allegheny County, Pennsylvania, correctly denied access to paid parental leave to Officer Randy Alexander. Allegheny Cnty., 2021 BL 159834, 2021 BNA LA 32Although the language in a new interest arbitration award allowed the leave to be taken at any point within the first 12 months of a birth, Arbitrator Frankiewicz held that the interest arbitrator’s award, which specifically ordered the new language on a nonretroactive basis, was only meant to apply to births that occurred after the award was published.
Officer Alexander became a father on June 15, 2019. Due to his status as a new officer, he did not have enough leave accrued to use for time off to spend with his new child. The interest arbitration award, issued on April 22, 2020, allowed for six weeks of paid parental leave to be taken within 12 months of the birth of a child. The language also contained a caveat that “this benefit is not retroactive and shall go into effect on the date the neutral arbitrator executed this Award.” On April 24, 2020, Officer Alexander applied for leave to bond with his then 10 month old daughter, which was denied a few days later.
The Union argued that Officer Alexander’s use of the parental leave would not be considered retroactive. This is because the language in the contract allows for the leave to be taken within 12 months of a birth, and the birth of Alexander’s daughter had taken place only 10 months prior. Under the language of the interest arbitration award, officers may utilize the leave any time during that 12 month period.
The County, on the other hand, argued that Officer Alexander’s daughter was born roughly 10 months prior to the language being incorporated into the CBA. It claimed that Alexander’s attempt to utilize the leave is exactly the kind of retroactive leave prohibited by the new language of the CBA.
Arbitrator Franckiewicz determined that there are two requirements that must be satisfied for parental leave to be used under the language of the CBA. First, the employee must request to take time off from their position. That requirement was clearly met when Alexander applied for leave following the issuance of the arbitration award. Second, the leave must be requested after the birth or adoption of a child.
In summary, although the taking of the leave would have been after the award signature date, identifying the date of birth, that is also a precondition to eligibility, in this case necessarily involves reference to the time period prior to the award signature date and thereby implicates the retroactivity prohibition in the Paragraph 17 Note. So both the taking of the leave and the birth itself must occur after April 22, 2020 in order to avoid a retroactive look. I conclude that the “retroactive” provision in the Note applies to this situation, and that the grievance therefore should be denied.
While Alexander did in fact seek to take the leave within 12 months of the birth of his daughter, Franckiewicz concluded that the language awarded by the earlier arbitrator implemented a 12-month countdown after the birth of a child as part of the contractual language. Because the CBA requires that an unofficial timer starts at the occurrence of a triggering event, such as the birth of Alexander’s daughter, counting back to the start of that 12-month period would require retroactive application of the new CBA term.
This case demonstrates the issues that can arise with implementation of interest arbitration language. A grievance arbitrator is trying to figure out what an interest arbitration intended. When parties negotiate their own contract language, their “bargaining history” becomes a key element to interpreting new language. When an arbitrator crafts the solution, it can create conflicting opinions between the parties as to what was intended.
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