Arbitrator Finds CBA Implicitly Bars Subcontracting

Written on 07/09/2021
Will Aitchison

The City of Grand Rapids, Michigan and the Grand Rapids Police Officers Association are parties to a collective bargaining agreement. In 2019, the police chief notified the Association that work performed by three employees in the Property Management, Traffic, and Detective Units would be transferred to civilian employees who were outside the Association’s bargaining unit. The Association responded by filing a grievance, and the dispute wound up before an arbitrator.

In an exhaustive opinion discussing many basic arbitration principles, the Arbitrator upheld the Association’s grievance. The Arbitrator began with the observation that “the longest CBA cannot anticipate or forestall all of the possible issues and scenarios.” Urged by both sides to follow the opinions of other arbitrators, the Arbitrator noted that “the other arbitrators’ wise counsel on matters of policy is entitled at least to consideration. They are at the same level as me, and I am not bound to follow their decisions – particularly when it is not a decision between the same parties and the same CBA as is now before me.”

The Arbitrator then turned to evidentiary objections made by the parties during the hearing, commenting that “rules of evidence are not binding in arbitration. Arbitration is in many senses an extension of the collective bargaining process. It serves as a place to air grievances and grudges as part of the in-shop process. It ought not to be hamstrung by artificial rules of evidence. In any event, with more than 40 years of experience, I am capable of separating the wheat from the chaff. I err on the side of too much of the irrelevant, rather than too little of the relevant. That the objections are overruled does not mean they are ignored. Rather, I have applied them as they relate to weight, not admissibility.”

The Arbitrator next addressed the structure of the CBA, which did not expressly prohibit subcontracting of the sort the City was proposing. The Arbitrator noted that the Grievance arose “from the intersection of different contractual provisions. The contract has a recognition clause, a management rights clause, and a maintenance of standards clause. I needed to read these together, as an integrated whole. Clauses should not be read so as to make them meaningless; it is presumed that they put them there for a purpose, not mere boilerplate. The CBA tries to balance the need for entrepreneurial/governmental efficiency with the needs for industrial governance and democracy. However, the management rights clause is not a universal trump card that negates the rest of the CBA. Its language recognizes that management’s rights are diminished by the express promises of the CBA.

“The maintenance of standards clause is confirmation of past practices, even if not expressly identified in a successor labor agreement. Although the clause does not directly involve the issue of subcontracting, the recognized decisional principles are applicable by analogy. It is the problem of maintaining the ‘proper balance between the employer’s legitimate interest in efficient operation and effectuating economies on the one hand and the union’s legitimate interest in protecting the job security of its members and the stability of the bargaining unit on the other.’

“A maintenance of standards provision may have little utility in preventing management from abolishing, changing or combining jobs. However, lack of a prohibition on subcontracting does not mean that there is not an implied obligation prohibiting it. Rather, it implicates a detailed and fact specific inquiry as to the nature of the changes, its effect on the union, and the reasons for it.

“Here the use of bargaining members to perform the disputed work has been consistent since at least 1996. At least in this bargaining unit, the memory of man runneth not to the contrary.

“The Employer has made much of its economic justification. For example, reduced income and adverse state revenue sharing is a harsh reality for it and the bargaining unit. I find persuasive, but not compelling, that there was a management study. It relates to their ‘good faith’ argument but is not a license to renounce solemnly made promises.

“Further, it cuts the other way. If there was a genuine need to make these changes, they could have, and should have, been brought up at the bargaining table. The Employer sat on the study. It dates all the way back to April 5, 2019, which presumably was in the midst of the negotiations for this contract. It is reasonably inferred that the City made a deliberate choice to not broach the subject.

“Loss of inside jobs was not a trifle. Inside work is very important. For police, it is like becoming a fire inspector in the fire department. Availability of such assignments is a critical safety valve; it can protect and preserve a career that is under threat. Being a police officer or sergeant is a stressful job that comes with a long list of occupational hazards. All jobs are not fungible goods, interchangeable, like peas in a pod. Having available inside jobs is an important benefit to the affected employees. They may need to get off street and have a place to work for this employer.

“If the Union can’t protect itself and its right to bargaining unit work, then its very existence and usefulness is necessarily called into question. In an era when the Michigan legislature has passed so-called ‘Right to Work’ laws, and the Supreme Court of the United States has opined on the subject, this is a real consideration.

“I find and declare that the Employer’s proposed elimination of the positions is a violation of the collective bargaining agreement. The Arbitrator orders that they cease and desist from those violations. Pursuant to the stipulation, I retain jurisdiction in the event the parties are unable to come to a mutual understanding of this award, or if they need for clarification. I leave it to the parties to meet and confer as to the need, if any, for further remedies incidental hereto.”

Grand Rapids Police Officers Association, GRPOA GR. #: 5-19 (Dobry, 2021).

The post Arbitrator Finds CBA Implicitly Bars Subcontracting appeared first on Labor Relations Information System.