By Jim Cline and Kim Lowe
In City of Webster Grove, Missouri, Arbitrator Peña denied the grievances alleging that the City went back on its agreement to pay employee firefighters up to 6-months of differential pay when they are completing military service instead of the 120 hours designated in the City policy. Because the Union did not negotiate the collective bargaining agreement to include the updated military leave policy, and the City’s evidence that the policy was never changed was more credible, Arbitrator Peña held that unit members are only entitled to the 120-hours.
The Grievant is a firefighter and member of the Missouri Air Force National Guard. In 2016, before the effective CBA, he was notified that he would be deployed for 6 months. On finding out that City policy granted him only 120 hours of differential pay, he met with then-City Manager Wylie who agreed that the grievant would be paid 6-months. There is disagreement over whether Wylie also agreed to update the policy, but it is clear he did not take any affirmative steps to have it approved by the City Council. In 2019, the parties negotiated the effective CBA but retained the same 120-hour military leave differential language as the City had before. In 2022, another firefighter in the unit was called to serve for up to 6 months. He requested the same 6-month differential pay that the grievant received, but the new City Manager refused.
The Union argued that the City adopted a policy of paying military differential for up to 6 months in 2016 and that policy remains in effect. The Grievant’s recollection was that Wylie agreed to change the policy for everyone, and he believed it was a done deal when he left Wylie’s office in 2016.
The City argued on the contrary that there was no change to the policy because Wylie never agreed to it in the first place. Wylie instead exercised his authority to grant the grievant in excess of 120-hours in his specific case, but nothing more. The City also rejects that the 6-months payment to the grievant constitutes a past practice because it was one instance and because the 2019 CBA grants management the right to exceed benefits listed in the contract without becoming a past practice.
Arbitrator Peña denied the grievance in part on a credibility determination that, contrary to the grievant’s recollection, City Manager Wylie did not agree to update the policy when he met with the grievant in 2016:
“The Arbitrator finds that while Mr. Wylie agreed to pay the Grievant the differential for six months, he did not agree to amend the City’s Military Leave of Absence Policy.”
Because the City policy was then never changed and the 2019 CBA did not memorialize a new agreement between the parties, the actual policy of the City was the one recorded in the CBA which allows up to 120-hours of differential pay. Since the City agreed to provide up to 120-hours to an additional unit member in 2021, there is no evidence it violated the contract.
Webster Grove identifies one of the most important practical rules in labor relations: bargain terms into the contract and have a clear, signed, revised copy to give the Union the best chance at defending these rights before an arbitrator. Arbitrators generally will not read rights into the contract that have not been bargained.
The lessons here are to get management promises in writing, and also to get that writing into the contract (or at least an MOU). The verbal discussion here failed to be enforceable when management later had a different version of events. Under many state laws, including Washington, compensation promises may have to be in a written agreement to be enforceable. Washington’s constitutional provision against gifts of public funds can make verbal promises like the one involved here suspect.
Had the parties developed a clear past practice, there would have been an argument, but that didn’t develop. The failure to proper document this “agreement” caused this misunderstanding.
**Visit our Premium Website for more information on Off-Duty Employment and General Principles of Contract Interpretation**
