Firefighters’ Past Practice Grievance Subject To Arbitration

The collective bargaining agreement between the City of Orange, Texas and the Orange Association of Firefighters contains a grievance procedure with fairly standard wording. The contract defines as a grievance: “Any controversy between the City and the Union or any employee concerning the interpretation, enforcement, or application of any provision of this Agreement, or concerning any of the terms or conditions of employment contained in this Agreement.”

When the City changed its past practice in how individuals were assigned to a fire marshal’s position, the Association filed a grievance under the maintenance of standards clause of the contract. The clause provides: “All economic benefits, privileges, and working conditions enjoyed by the members of the bargaining unit as of the effective date of this Agreement, unless contrary to this Agreement, shall remain unchanged for the duration of this Agreement, so long as those standards, privileges, and working conditions do not adversely interfere with normal operation of the Fire Department.”

The City refused to process the grievance, contending that it had the right under the management rights clause of the contract to “assign work,” and that the change in the method of assignment of the fire marshal fell within the scope of that right. The dispute as to arbitrability of the grievance wound up in the Texas Court of Appeals, which ordered that the grievance proceed to arbitration.

The Court ruled: “In our determination, we apply general principles of contract interpretation to the collective bargaining agreement. Any doubts as to whether the Association’s grievance against the City falls within the scope of the grievance procedures of the Agreement must be resolved in favor of arbitration. A court should not deny arbitration unless the court can say with positive assurance that an arbitration clause is not susceptible of an interpretation that would cover the claims at issue. The presumption of arbitrability is particularly applicable when an arbitration clause is broad as providing for arbitration of ‘any dispute arising between the parties,’ or ‘any controversy or claim arising out of or relating to the contract thereof,’ or ‘any controversy concerning the interpretation, performance or application of the contract.’

“We hold that the grievance is subject to the grievance procedures, including arbitration, contained in the Agreement. The Association does not dispute the City’s contractually reserved rights to assign employees or determine the assigned work of employees, except as specifically limited by the Agreement. However, the Association’s grievance alleges the City’s violation of the Agreement’s ‘maintenance of standards’ provision by altering its past practices of filling the position of Fire Marshal by voluntary assignment. Interpreting the Agreement to decide how these provisions interact is a matter that the parties expressly agreed to submit to a grievance and arbitration procedure.

“Under the unambiguous language of the Agreement’s grievance procedures, there is no express provision excluding any grievance challenging the City’s past practices from progressing to arbitration; the City points to no such provision in the Agreement. Additionally, the City provided no evidence of the parties’ intent to exclude a grievance relating to the ‘maintenance of standards’ provision or the ‘Management Rights’ provision from arbitration, nor any opposing evidence relating to its past practices in filling the position.”

Orange Association of Fire Fighters v. City of Orange, 2014 WL 891591 (Tex. App. 2014).