Union Does Not Breach DFR By Refusing To Bargain Seniority Issue

Written on 10/08/2022
Will Aitchison

Brandon Barth, Mark Cam­popiano, David Jubinville, Justin Rutkiewicz, and Ryan Shore (the Sergeants) are all sergeants in the City of Cranston Police Department in Rhode Island who sued their union, Local 301 of the International Broth­erhood of Police Officers, for breach of duty of fair representation. The dispute stemmed from an incident in 2013, when a sergeant by the name of Josefson accepted a demotion in order to avoid facing disciplinary charges following an internal affairs investiga­tion. In 2016, Josefson sued the City for civil rights violations relating to the demotion.

Josefson reached a settlement agreement with the City without the participation of Local 301. The agree­ment involved the entry of a Consent Judgment and the reinstatement of Josefson to the rank of sergeant. When Josefson was restored to his former rank, the Department employed 20 sergeants, though its collective bar­gaining agreement limited the number of sergeants to 19. The City decided to continue employing them all and to allow one position to go away through attrition.

The Sergeants were all promoted to the rank of sergeant during the three-year period between Josefson’s demo­tion and reinstatement, and Josefson’s reinstatement moved them all down one position in sergeant rank seniority. Seniority rights impact the Sergeants’ overtime, compensatory time, acting out of rank time, vacation picks, and attendance at trainings and schools. The Sergeants pushed Local 301 to file a grievance on their behalf to have their seniority restored ahead of Josefson’s. Local 301 refused to do so because it concluded, based on legal advice, that an arbitrator lacked the power to undo the Consent Judgment and reorder the sergeants’ seniority. The Sergeants then appealed to their national union, which denied the appeal.

Local 301 did, however, bring its own grievance, pressing the City to retain the 20th sergeant position permanently. Following arbitration, the Arbitrator found that the City had violated the CBA in “reaching an agreement with a private attorney, without involving Local 301” in the Josefson matter. The Arbitrator ordered the City to “bargain over the impact of the Consent Judgment to the extent that the subjects raised by Local 301 are mandatory subjects of bargaining.”

The Sergeants then sued Local 301 (among other defendants), alleging that Local 301’s failure to pursue their senior­ity claims was a breach of the duty of fair representation. The federal First Circuit Court of Appeals rejected the lawsuit.

The Court held that “in order to make out a claim for a union’s breach of this duty of fair representation, the Sergeants must show that Local 301 acted discriminatorily, in bad faith, or arbitrarily toward them any substantive examination of a union’s performance must be highly deferential, recognizing the wide latitude that negotiators need for the effective performance of their bargaining responsibilities.

“The Sergeants argue that Local 301 had a duty, after the Arbitrator ruled in favor of Local 301’s grievance, to bargain with the City over their seniority rights. None of the evidence set forth by the Sergeants would permit a reasonable jury to conclude that Local 301 acted in a manner that was discriminatory, in bad faith, or arbitrary. When the Sergeants filed their grievance, Local 301 opted not to pursue it based on its understanding of legal advice that an arbitrator would not be able to alter the terms of the Consent Judgment.

“As Local 301 points out, Local 301’s assessment as to whether the Consent Judgment could be altered by an arbi­trator did not even need to be correct to defeat a fair representation claim; it is sufficient that the evidence shows that Local 301 investigated the grievance and made a rational decision as to whether to pursue it.

“Nothing about the Arbitrator’s findings affects the rationality of Local 301’s decision not to press Plaintiffs’ se­niority rights with the City. Indeed, the Arbitrator’s decision states that ‘while the parties may have no authority to alter the court judgment, they do have the ability to negotiate other matters,’ which is in accordance with Local 301’s view that any remedy would have to be consistent with the Consent Judgment. Moreover, the Arbitrator ordered the City to bar­gain with Local 301, not the other way around. The Sergeants doubtless would have preferred Local 301 to bargain over reordering the sergeants’ seniority, but disappointment, without more, does not give rise to a claim against Local 301 for breach of its duty of fair representation.”

Barth v. City of Cranston, 2022 WL 3225382 (1st Cir. 2022).

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