Arbitrator Restores Vacation Benefit Given Consistent Past Practice and Bargaining History

Attorney Leah Barrault persuaded a neutral arbitrator to restore longstanding vacation benefit for fire fighters represented by Malden Fire Fighters Union Local 902, IAFF. The Award is attached.

The Collective Bargaining Agreement between Local 902 and the City of Malden limits the number of employees (or fire fighters) in a group on vacation at any one time. Many public safety contracts provide for such a cap, in order to ensure proper staffing and to contain overtime costs. Here, the contract language had always been interpreted to apply only to fire fighters assigned to the fire suppression division and not to fire prevention employees, dispatchers or as Deputy Chiefs.

Despite this clear practice, the Malden Fire Chief unilaterally issued a new policy in 2014 that reduced available vacation opportunities for fire fighters during summer months. The memo declared that deputy chiefs, fire prevention (or specialty positions) and dispatchers would now count toward the cap on the number of fire fighters on vacation at any one time during summer months.

The Union grieved the memo as a violation of the contract. The Fire Commissioner, otherwise known as the Chief's boss, agreed with the Union. During contract negotiations, the City tried but failed to introduce contract language that eliminated undocumented past practices related to vacations. After the parties settled a contract, the Chief issued another memo, this time alleging that deputies and dispatchers count toward the vacation cap. He agreed that fire prevention employees did not count toward the cap. The Union filed a new grievance.

The Arbitrator agreed with Attorney Barrault that even though the contract did not distinguish between types of employees, the clear practice and bargaining history revealed a shared understanding of "employees." The City never previously counted deputies and dispatchers toward the cap. The Arbitrator determined that this undisputed and uninterrupted practice defined that "employees" referred only to fire suppression employees. As such, the Chief's memo violated the contract.

The Arbitrator ordered the City to make employees whole and he agreed to hold onto the case for six months, in case the parties disagreed about how best to make employees whole and and comply with his Award.