Pyle Rome obtains arbitration decision that "evergreen clause" is effective and orders City of Lawrence to reinstate employee that was laid off in violation of the parties' CBA.

An arbitrator has found that the City of Lawrence violated its contract with SEIU, Local 888 by laying off an employee when it reassigned virtually all of his duties to another employee. The Employer laid off the grievant in June 2010 when the CBA was in effect. Although the contract permitted layoffs for budgetary reasons, in July, just after the CBA expired, the grievant’s duties were assigned to another employee outside of the bargaining unit. Attorney Ian Russell successfully argued that by assigning the grievant’s job duties to another employee, the City never really eliminated the grievant’s position and therefore lacked justification to layoff the grievant. As a remedy, the Arbitrator ordered the City to reinstate the grievant and make the grievant whole for all lost wages and contract benefits.

This decision is especially notable with regards to recently passed legislation that allows parties to extend the provisions of an expired CBA until a successor agreement is reached. The City erroneously argued that the grievance was not arbitrable, relying on the Supreme Judicial Court’s 2010 decision in Boston Housing Authority v. National Conference of Firemen and Oilers, Local 3 (“BHA”), which limited public sector contracts to 3 years, even if the contract, like the one here, contained an “evergreen” clause continuing the contract in effect, since the re-assignment of duties occurred after the contract had expired. Russell argued, and the Arbitrator agreed, that the Legislature effectively reversed the BHA decision retroactively and made evergreen clauses lawful when it passed Chapter 198 of the Acts of 2011. Because the law meant that the contract was in effect in July 2010, the Arbitrator found he could decide the merits of the grievance.