Attorney Hykel Proves Unions (And Haverhill Fire) Can Win A Contract Interpretation Arbitration Without Past Practice

Unions occasionally face the conundrum of discovering a great contractual benefit at the same time they discover that the benefit that has not been awarded consistently to members. Sometimes a consistent past practice against employees discourages the Union from enforcing it. This arbitration case showcases when the enforcement of previously-unenforced contract language can be successful. Attorney James Hykel, assisted by Attorney Leah Barrault, successfully represented the Haverhill Fire Fighters, Local 1011, IAFF here.

This grievance involved a new fully-integrated collective bargaining agreement executed in 2002 between Local 1011 and the City of Haverhill that provided a 9 percent differential to "all uniformed members *newly* assigned to administrative day positions by the Chief." The CBA provision specifically listed "Fire Prevention, Training, Education, Fire Alarm, etc." as eligible.

On the same day the above CBA was reached, the parties also executed a Side Letter modifying the above language: "All Personnel assigned to Day and Administrative Positions shall receive a minimum of the 9% differential.” Unlike the above provision, the Side Letter did not limit the benefit to "uniformed" members or members "newly assigned to administrative day positions. Also unlike the CBA, the Side Letter did not mention the positions entitled to this benefit.

Subsequent to reaching these agreements, the City paid the differential to the Fire Alarm Superintendent, Training Deputy and Fire Prevention staff (all uniformed positions). But the City did not pay it to non-uniformed positions of Master Mechanic, Mechanic and Signal Maintainer, who all work during the day.

The Union never sought to apply the 2002 Side Letter to non-uniformed members until 2014. Frankly, the Union had forgotten about the Side Letter. The Union President who negotiated the Side Letter soon became Acting Chief. The Union, under new leadership, learned of the Side Letter when the City provided a copy during discussions to integrate the collective bargaining agreement. (The CBA had not been integrated since 2002). The Union demanded that the City pay the differential to non-uniformed members who work only during the day. The City refused.

The attached Award sets forth an arbitrator's effort to interpret somewhat ambiguous language in the absence of past practice or bargaining history. The City contended the Side Letter does not apply to the above positions because they are not administrative employees assigned to day positions. The Arbitrator found some evidence in support of the City's interpretation, such as the lack of any past practice, the Union's failure to object to the lack of enforcement, and the former Union President's failure to pay this benefit when he became Acting Chief. The Arbitrator reasoned that the City's interpretation could be supported by a possible purpose of the language: to equalize earnings disparity between fire suppression and fire prevention personnel, a concern that that did not exist in the non-uniformed division.

Ultimately, the Arbitrator refused to let the result be dictated by past practice, especially because the CBA specifically said that a failure to enforce language could not be held against a party. The arbitrator wrote, "The past practice evidence alone relied upon by the City thus lacks the force necessary to achieve a result at variance with the language."

He instead interpreted the Side Letter to give reasonable meaning to the changes it represented. The Side Letter eliminated references to "newly assigned", "uniformed" and specific positions entitled to the benefit. As such, he concluded the language should receive a broad interpretation, and apply to non-uniformed members. He ordered the City to pay the differential up to one year prior to the filing of the grievance (The contract expressly provided for one year to file grievances).

The attached decision shows that past practice is not necessarily the "be and end all" of contract interpretation, even if the contract language is ambiguous.