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Arbitrators May Consider the Current Practice of Employers When Interpreting Collective Bargaining Agreements

In the case of Anderson Twp. Bd. of Trustees v. Anderson Twp. Professional Firefighters Assn., Laff Local 3111, 2019-Ohio-2302, an Ohio appellate court held that “arbitrators can look to the conduct of the parties to see how they have interpreted” a collective bargaining agreement (“CBA”) “[r]egardless of whether a contractual provision is considered ambiguous or silent.” Anderson at ¶ 19.

This case arose out of a dispute regarding whether an employer was permitted to impose discipline on an employee during an appeal process. The union argued that the CBA failed to specify when discipline should be imposed and that both the past and current practice of the employer and union was to wait until all levels of appeal have been resolved to impose discipline. The employer argued that the CBA was clear and unambiguous and that a zipper clause – i.e. a clause prohibiting any party from relying on a past practice – allowed the employer to impose discipline whenever the employer wanted.

At arbitration, the arbitrator “determined that the parties’ conduct, both before and after the controlling CBA took effect, required postponing the implementation of discipline until after the appeals process was completed.” Anderson at ¶ 7. The employer appealed the arbitrator’s decision arguing that “the arbitrator exceeded her powers by adding an exhaustion requirement to the language of the CBA.” Anderson at ¶ 14.

The Ohio appellate court upheld the arbitrator’s determination and found that, “[r]egardless of whether a contractual provision is considered ambiguous or silent, arbitrators can look to the [current] conduct of the parties to see how they have interpreted the agreement” even when the CBA contains a zipper clause. Anderson at ¶ 19. Specifically, the Ohio appellate court found that “the arbitrator was not enforcing any past practice; rather, she was looking to the parties’ current conduct following the effective date of the current CBA to determine how they interpreted the contract.” Anderson at ¶ 20.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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