Attorney Jillian Ryan Convinces Arbitrator That Boston’s Promotion Lacked Legitimate Purpose, Evidence.

The collective bargaining agreement between the City of Boston and Salaried Employees of North America (SENA), Local 9158 of the United Steelworkers permits the City to be the sole decisionmaker on certain promotions. The CBA requires the promotion to be upheld unless the Union establishes that the decision was “arbitrary or capricious.” This is a relatively high standard, as the Union must persuade the Arbitrator that the selection “was devoid of a legitimate, job-related rationale supported by credible evidence” (such as being unreasonable, unsupported by evidence, or powered by an unlawful motive to retaliate or discriminate). Attorney Jillian Ryan succeeded in doing so in this case.

Here, the City passed over a particular employee (the grievant) for a promotion because it determined that its ultimate choice (the incumbent) had more payroll, supervisory, and leadership experience, and because the grievant lacked proper motivation.

The neutral arbitrator heard testimony from the Union and the City, including the person who ultimately promoted the incumbent. The arbitrator concluded that the City improperly considered the timing of when the grievant filed his application (still within the posted application period); wrongly ignored the grievant’s considerable supervisory and payroll experience; inappropriately criticized the grievant for desiring to be promoted; and made illogical comparisons about the candidates’ leadership experience. In short, the City applied different standards to the two candidates. While the arbitrator sympathized with the difficulty of selecting among qualified candidates and recognized the considerable discretion afforded to City in promotions, she ultimately concluded that this challenge did not excuse the City’s haphazard rationale for its decision. She noted that the difficulty of this appears to have motivated the City “to make every inference against the Grievant while indulging in every inference favoring [the Incumbent].”

To remedy the City’s arbitrary and capricious decision, the arbitrator declined to order the City to promote the grievant. Instead, she ordered the City to reconsider its promotions decision and pay lost wages to the Grievant only if he the City ultimately selects him after reconsideration. The City is directed to constitute a three-person panel and, per the arbitrator’s instructions, “”disregard the dates that the candidates applied for the Budget Director position, use job-related questions, record the candidates' answers fully and accurately, grade the candidates' answers in a uniform manner, consider the totality of both candidates' job-related experience prior to [the date of initial promotion], and disregard the experience gained by [incumbent] following [the initial promotion].”

In addition to being a historic victory for the Union, this award serves as an important check upon arbitrary and irrational employment decisions by public employers.