It’s been a while since we’ve discussed a recent arbitration.  Anything having to do with contract analysis is helpful for those of us working with collective bargaining agreements, and the latest decision out of the BMS addressed that, including touching on everyone’s favorite issue: past practices!

In Cass Lake Bena Education Association and Cass Lake Bena School District, ISD 115, the union claimed that the district violated the terms of its agreement when it did not set the grievant’s date of hire to her original employment date with the district of 2011, even though she resigned from the district in 2016 and was rehired in 2017.  The union argued that the clear language of the collective bargaining agreement stated that seniority meant “initial date of service with the school District in a position requiring a license.”  Not surprisingly, the district disagreed.

In its defense, the employer stated that the grievant left the district with no intent to return to the district, and lost her seniority.  As such, her initial date of seniority was to be her return to duty with the district of 2017.  The district also argued that if the union’s position were awarded, the grievant would have bypassed 39 employees (and fellow union members) on the seniority list even though she left to work for another district.

In addition, the district put forth an argument that a past practice existed of placing employees who were re-hired by the district at the bottom of the seniority list.  The problem for the district was the language of the contract appeared to be clear: “Seniority for purposed of ULA means initial date of service with the school District in a position requiring a license.”

Normally, that would be the end of the discussion.  However, Arbitrator Jacobs addressed it with what he called the essential question of “whether the parties truly intended when this language was negotiated to allow a teacher to leave employment for a year or more and then return at some unspecified date with not only their continuing contract status intact, but also to receive seniority for the years they were not even employed with the District.”

Arbitrator Jacobs then went on to look to definitions for “seniority” in other sources as well as the “commonly understood notion of seniority itself.”  In that, he stated a “break in service due to a voluntary resignation is also commonly understood to cause a break in that seniority.”  He found that breaks in seniority were not discussed in the contract.  As such, he found the language to be ambiguous.  This opened the door to alternative analyses of the language.

Unfortunately, for the district, there was no documentary evidence of a past practice regarding the seniority of re-hired employees; just witness testimony.  “The testimony was sincere, but without any clear documentation of that the evidence on this record did not rise to the level of establishing a binding past practice.”  Arbitrator Jacobs determined because of that, the necessary elements of a binding practice could not be established.

However, what saved the district is the frequently relied-upon, but seldom successful argument that to award the union’s position would be to allow an “absurd result.”  Arbitrator Jacobs found this to be the “far more convincing argument” on the record.  With that, the District’s position was awarded.

This is definitely the road most traveled in order to get a desired result.  The District had to throw several forms of argument at the arbitrator in order to win.  What this award does is emphasize the importance of crafting language to fit the needs of the parties when the language is originally placed in the contract.  The district was lucky to have a rational mind in the room that understood the ramifications of simply taking the language that was in the contract at face value.  If you, or your organization need assistance in drafting contract language to meet your needs, or defending you in times when language is unclear, contact Wiley Reber Law, for experience that works.