Arbitrator May Promote Successful Grievant
The Massachusetts Appeals Court chipped away at the foliage surrounding management rights when it upheld the authority of an arbitrator to order the promotion of a grievant wrongfully denied a job.
In City of Somerville v. Somerville Municipal Employees Assn, #06-P-1299 (July 23, 2007), the union challenged the mayor’s appointment of a non-unit employee to Veterans’ Affairs Director. The Mayor is empowered by statute to make this appointment and his decision, under the principle of “management rights” is not subject to arbitration. But the City and the union negotiated a provision that provides a preference to the most qualified, senior unit member. The arbitrator found, and the City did not dispute, that the grievant was at least as qualified as the Mayor’s appointee. As such, the arbitrator directed the City to appoint the grievant to the position.
The Appeals Court rejected the City’s arguments to overturn the arbitrator’s award. While appointment selections and assignments are entrusted to public employers, the Appeals Court affirmed that public employers and unions nonetheless may negotiate a process for the selection of an appointment or promotion. The seniority preference here fell into this exception to managerial rights.
This decision is noteworthy because it affirmed the power of an arbitrator in remedying the contract violation to direct an appointment. In other circumstances, such as civil service, tribunals are reluctant to vacate a management decision, no matter how erroneous. This Somerville decision should strengthen union challenges to personnel decisions by the public employers that violate a contract. In addition, the case shows that “management rights” is not a failsafe defense or magic wand.
One thought on “Arbitrator May Promote Successful Grievant”
Your article makes is seem as if the City negotiated a provision and then claimed it was an illegal provision. This is simply not so. Rather, it was the City’s position that the preference provision did not apply in this instance. The provision generally requires that Unit B employees be given preference, all things being equal, over non-union employees when applying for a Unit A position. The Veteran’s Services Director position is never mentioned or referenced in the collective bargaining agreement. Of the dozens of Unit A positions, only the Veteran’s Services Director was created by statute empowering the Mayor to appoint. So it was the City’s position that the preference provision was a legal provision that applied to all other Unit A positions except for the Veteran’s Services Director position where it was in conflict with the statute.
It may seem like a mere nuance, but I believe your article inaccurately paints the City in a negative light. I hope you can see the point.