Arbitrator’s ‘Late Hit’ Requires Reversal Of Decision

The collective bargaining agreement between the City of Scranton, Pennsylvania and Local 60 of the International Association of Fire Fighters contains a “past practices” clause requiring the City to continue in effect all past practices except as modified by the contract. Beginning in January 2004, the City unilaterally issued a series of memoranda changing the standard deployment for automated alarms. In 2005, the City directed that due to inclement weather conditions, the modified response to an automated fire alarm would be a single-engine company only.

Local 60 filed a grievance challenging the memoranda under the past practices clause. During the arbitration hearing, neither party seriously debated whether past practices existed that would require higher staffing than the memoranda. Rather, the employer’s primary argument was that it had the management right to make changes in staffing.

The Arbitrator rejected the grievance. The Arbitrator concluded that “the two-engine company response complement appears to be one of the ‘other practices’ a prior arbitrator described. Its origins are unclear and it has not been shown to be the result of joint determination. Therefore, it should not by itself prevent the exercise by the City of what would otherwise be deemed a basic prerogative of management.”

Local 60 challenged the Arbitrator’s decision, arguing that the Arbitrator deprived it of its due process rights by basing its decision upon a “lack of evidence” on an issue that was not submitted or considered by the parties or made aware to the parties until after the Arbitrator’s decision was issued. Pennsylvania’s Commonwealth Court (Pennsylvania’s Court of Appeals) agreed with Local 60.

The Court concluded that “our review of the record of the proceeding reveals that neither party made any attempt to address the issue of the origin of the past practice, nor did the Arbitrator inform the parties that he considered such evidence to be significant in the case at hand. The City, in its reply brief, attempts to argue that because it raised the basic issue of management rights, the Union should somehow have known that the issue of the origin of the past practice was clearly before the Arbitrator. Such argument is without merit. Moreover, we note that at no point does the City state that it was aware that the origin of a past practice would be a component of the Arbitrator’s analysis. This Court does not believe that either party realized that such would be the case. Under these circumstances, we must conclude that the standards of fundamental fairness required for due process were not satisfied.”

Fire Fighters Local No. 60, IAFF v. City of Scranton, Pennsylvania, 2007 WL 4208636 (Pa.Cmwlth. 2007).

This article appears in the February 2008 issue