Worcester Fire Chief Ordered to Promote Most Senior, Qualified Candidate, Thanks to Atty Barrault and Local 1009

November 03, 2019

An independent Arbitrator agreed with Attorney Leah Barrault that the City of Worcester violated its collective bargaining agreement with Worcester Firefighters, Local 1009, when it failed to provisionally promote the most senior candidate as Deputy Chief. The Arbitrator handed Local 1009 another victory when she affirmed that the City is required to promote from a "short" Civil Service list (a list of fewer than three candidates) for promotions within the bargaining unit. This case involved a 2018 vacancy in the Deputy Chief ranks. The City decided to make a provisional, rather than a permanent, promotion to fill that vacancy. The collective bargaining agreement negotiated by Local 1009 contains an Out of Grade article that requires the Fire Chief to use the most senior candidate to fill in for an absent officer and to compensate that most senior candidate at the rate of the position being filled. The Chief disregarded that clear benefit. Rather than provisionally promote the most senior District Chief, the Chief promoted the ninth most senior one. The Arbitrator held that this action, especially where the Grievant was qualified to serve as Deputy Chief, violated the collective bargaining agreement. The Arbitrator rejected the City’s argument that the Out of Grade provision applies only to short term absences, and not provisional appointments, finding that the provision applied to all “vacant positions where civil service eligibility lists are not used.” The Chief's violation of this language deprived the Grievant of increased compensation and benefits during the time of the provisional promotion. The Arbitrator ordered the Fire Chief to make the Grievant whole and pay him as if he had been properly promoted. The Arbitrator also agreed with Local 1009 and Barrault that the City was obligated to make promotions from a Civil Service “short list” is subject to arbitration. The Arbitrator rejected the City’s argument that the Civil Service law prohibited the Union from using arbitration to enforce a past practice of promoting the highest-ranking individual from a Civil Service eligibility list, even if the list contains fewer than three names. She reaffirmed a prior Arbitrator’s holding that there was a binding past practice of promoting the top-ranked employee on a Civil Service eligibility list when making promotions to positions within the bargaining unit. This Award provides significant clarity and stability to procedures for future promotions within the Worcester Fire Department