‘Shall’ Removes Employer Discretion

The collective bargaining agreement between the City of Providence, Rhode Island and Local 799 of the International Association of Fire Fighters allows firefighters to use a number of personal leave days each year. The operative clause in the collective bargaining agreement begins that such leave “shall be granted for the following defined reasons…”

The City was encountering difficulty scheduling leave on June 17, 2007, which was Father’s Day. The City eventually rejected requests by firefighters for use of personal days on the night shift. Local 799 promptly challenged the City’s decision in arbitration.

An arbitrator sided with Local 799. The Arbitrator found that the use of “shall” required the City to grant leave if the leave was requested for any of the reasons listed in the contract. While the City argued that the contract left it the discretion to deny leave in situations where an “administrative nightmare” would result, the Arbitrator found that the contract language simply divested the City of discretion as to whether to deny leave requests for any reason not listed in the contract. The Arbitrator was also skeptical of the reasons advanced by the City for the denial of leave, commenting that “the City made no attempt to claim there was a crisis that necessitated its action on June 17, 2007 and acknowledged that it had other options for staffing. The City’s approach would turn the negotiated benefit into a chimera, available to employees only through the good will of supervisors.”

City of Providence and IAFF, Local 799, LAIG 6762 (Brown, 2009).

This article appears in the November 2009 issue