The Town of Bellingham must provide a police officer who was out on administrative leave with additional paid detail opportunities after an arbitrator found that the Police Department’s practice of giving “refusals” to such officers violated the collective bargaining agreement between the Town and the police union, Local 216 of the Massachusetts Coalition of Police. The union was represented by Attorney John M. Becker of Sandulli Grace, P.C.
The issue arose when the Police Chief decided to place the officer on administrative leave so he could send him for a fitness-for-duty examination. During the month-long leave period, the Department, according to a longstanding practice, recorded the officer as having refused every detail opportunity that he would have been offered had he been working. Such refusals placed the officer much lower on the list when he did return.
The Department had adopted this practice for officers on sick, injury and administrative leave to keep officers who were out for long periods from returning at the top of the detail list. The problem, the Union argued (and Arbitrator John Cochran agreed in an August 28, 2012 award), was that the clear language of the collective bargaining agreement stated that refusals were only appropriate when an officer was actually available to take the work and voluntarily refused. Thus, the practice of the Department violated the unambiguous language of the contract, and in such cases, the arbitrator ruled, the contract, not the practice, prevails. As a remedy, Arbitrator Cochran ordered the Department to give the officer another detail opportunity for each refusal he received.
In another portion of the case, the Town had argued that the grievance was not arbitrable because the Union had not filed for arbitration until 10 months after the contract violation. In this case, the contract language required the Union to give notice of intent to arbitrate within 14 days but had no deadline for actually filing for arbitration. Arbitrator Cochran agreed with an earlier arbitrator, who ruled that despite the absence of a strict time limit, the Union must file for arbitration within a “reasonable time” unless it had a good excuse for the delay. In this case, Arbitrator Cochran found that 10 months was unreasonable “on its face” but that the Union had a legitimate reason for waiting to file. The Union had also filed an unfair labor practice at the state Department of Labor Relations in relation to the same underlying facts as the grievance, and a win at the DLR would have given the officer the remedy he was looking for. But when the DLR dismissed a portion of the case, the Union realized it would have to go forward with the grievance in order for the officer to be made whole. Based on this explanation, Arbitrator let the grievance go forward on the merits and ultimately ruled in the Union’s favor on the detail refusal issue.
On November 22nd, Governor Patrick signed the Evergreen “Fix” bill into law. The bill was passed as an emergency act so it immediately goes into effect. Accordingly, municipal employers are bound to the terms of collective bargaining agreements with an evergreen clause until a new contract is negotiated. This is now the law, even if an evergreen clause extends a collective bargaining agreement beyond three years.
Last fall, the state Supreme Judicial Court overturned 30 years of history and held that “evergreen clauses” – clauses that extend collective bargaining agreements until a new contract is negotiated – were unlawful and unenforceable if the clause operated to extend a collective bargaining agreement beyond three years. This wreeked havoc in some communities because employers took advantage of the ruling by refusing to arbitrate grievances after a three- year contract expired. In addition, some employers took the position that they were not bound by any of the terms of the contract after three years, despite the fact that the employer had agreed to an evergreen provision.
This problem was corrected by the legislature on November 17thin House 3789-11. As a result of diligent efforts, persistence and lobbying by a broad coalition of public sector unions over the past year, the legislature enacted a bill that reverses the SJC ruling — reaffirming that evergreen clauses are enforceable even if they operate to extend the contract beyond three years. In addition, and again due to the extraordinary efforts of the labor coalition, the legislation contains a retroactivity provision. Section 2 of the new law restores evergreen clauses to any collective bargaining agreement that contained an evergreen provision and had expired after three years under the SJC decision. Evergreen clauses in such agreements are resurrected and enforceable going forward – even as to matters that arose prior to this legislation. So, if you are under a three year contract with an evergreen clause that had expired under the SJC ruling, the contract has been restored and is enforceable until a new contract is negotiated.
There is a narrow exception the retroactivity provision. The law does not apply are “specific matters” that “were pending or adjudicated in a court of competent jurisdiction” at the time that law was passed. There will undoubtedly be litigation about which cases fall under that exception. But the vast majority of matters are back under the umbrella of evergreen clauses. This bill is now awaiting the Governor’s signature.
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Massachusetts Arbitrator Mary Ellen Shea ruled that the City of North Adams is required to offer certain overtime shifts first to full-time police officers, under a collective bargaining agreement between the City and the North Adams Police Union, Massachusetts Coalition of Police Local 382, AFL-CIO. In light of this interpretation of the labor contract, Arbitrator Shea found that the City violated its contractual obligations when it refused to offer full-time officers the overtime caused by single-day training and vacation absences. The case involved the well-settled principle that clear contract language trumps a past practice, regardless of the duration of the past practice.
MCOP Local 382’s contract entitles full-time officers to work overtime shifts. The overtime provision states that the City, however, may offer vacancies to part-time reservists when it is reasonably determined that the full-time officer “will not be available for more than two continuous days.” The City claimed that this language permitted it to offer overtime shifts caused by vacation and training to part-timers because “not be available” refers only to when a full-time officer is physically incapable of working. Under the City’s interpretation, an officer on vacation or training is physically able to work, unlike an officer on sick leave. The Arbitrator rejected the City’s interpretation as seeming “strained and does not produce a logical and consistent result.” She concluded that the plain language required the City to offer these vacancies to full-time officers, regardless of the reasons for the vacancy.
Because the arbitrator found that the contract language was unambiguous and not susceptible to any reading offered by the City, she ruled that the City’s claims of a 30-year past practice were irrelevant and unpersuasive. In addition to the golden rule that clear contract language trumps past practice, Arbitrator Shea found that the City failed to produce credible evidence to show that its alleged practice of offering vacation and training vacancies to reservists was clear, consistent or accepted by the Union.
After concluding that the City violated the contract, the arbitrator ordered the City to pay the Union for the amount of the overtime shift lost to the reservist.
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