Union Waived Rights To Contest Results Of Physical Fitness Tests

The collective bargaining agreement between Middlesex County, Massachusetts and the International Brotherhood of Correctional Officers contains a mandatory physical fitness test. Part of the physical fitness examination involved a running test.

When Thomas Doucette, a corrections officer, was unable to pass the running test due to a disability, the Brotherhood filed a grievance under its collective bargaining agreement challenging the County’s decision to terminate Doucette. The Brotherhood argued that the purpose of the test – the assessment of cardiovascular capacity – could have been accomplished through a test which did not require Doucette to run. The Brotherhood also argued that the decision to discharge Doucette violated the general obligation under the collective bargaining agreement not to discriminate against those with disabilities.

The Appeals Court of Massachusetts upheld a lower court’s order barring the Brotherhood from submitting the grievance to arbitration. The Appeals Court pointed to a provision in the physical fitness clause stating that “the provisions of this article are not subject to the grievance and arbitration provisions of this Agreement.” In the eyes of the Court, “the collective bargaining agreement clearly has removed such disputes from arbitration, and the employee has other remedies to vindicate such claims of discrimination, including individual statutory rights under state and federal antidiscrimination laws.”

The Brotherhood also argued that the collective bargaining agreement required the County to have just cause to discharge Doucette, and that it was entitled to arbitrate the grievance under the just cause provision in the collective bargaining agreement. The Appeals Court once again disagreed, finding that “to let the general duty to arbitrate claims regarding whether an employee was terminated for just cause overrides the specific exception dispensing with the duty to arbitrate terminations based on the physical fitness test would totally vitiate the article in the contract dealing with physical fitness. The parties deserve the benefit of the contractual provision for which they expressly bargained.”

Sheriff of Middlesex County v. International Brotherhood of Correctional Officers, 2005 WL 3159615 (Mass.App. 2005).

This article appears in the January 2006 issue