Zipper Clauses, Past Practices, and Discipline Prior to Exhaustion of Appeals

The Court of Appeals of Ohio, First Appellate District has upheld a grievance arbitration decision that found that a fire department breached a collective bargaining agreement when it imposed discipline before an employee’s administrative appeals have been exhausted.

The case involved William Tillett, who was a lieutenant with the Anderson Township Fire Department. In 2017, Lt. Tillett surrendered his fire inspector certification prompting the fire department to initiate disciplinary action against him. Shortly thereafter, he was demoted to firefighter.

After his request for reconsideration was denied, and he unsuccessfully appealed to the Township Administrator and the Board of Trustees, Anderson Township Professional Firefighters Association IAFF Local 3111 filed a grievance on Tillett’s behalf arguing that “implementation of his demotion prior to the exhaustion of his appellate remedies violated the CBA and disregarded the parties’ longstanding past practice of not imposing discipline until the appeals process was completed.”

Following unsuccessful efforts to resolve the grievance, an arbitrator was appointed. The Township argued that the CBA allowed it to implement discipline immediately without waiting for the appeal process to conclude. It also contended that the CBA contained a zipper clause that prohibited the union from relying on a past practice.

The union countered that despite the zipper clause, the CBA was ambiguous about when discipline could be imposed, and that reliance upon the parties’ past practices helped shed light on the proper interpretation of the ambiguity. According to the decision:

• The arbitrator sustained the Union’s grievance.
• Construing the CBA, the arbitrator determined that the CBA language allowing for the imposition of discipline was clear and unambiguous, but that the CBA had a gap and was silent as to when the imposed discipline could be implemented.
• The arbitrator further 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.

The Township then filed suit in Hamilton County Court of Common Pleas to vacate the arbitrator’s award for exceeding her powers. More specifically, the Township contended that the arbitrator improperly added a new provision in the CBA allowing firefighters the right to exhaust their appeals before discipline can be imposed. The Township argued the arbitrator lacked the power to fashion a remedy that added a new provision to a CBA.

The Court of Common Pleas concluded the CBA was indeed ambiguous as to when the penalty could be imposed. It ruled the arbitrator’s award “drew its essence from the CBA”, and therefore it denied the Township’s request to vacate it.

The Township then appealed. In a ruling handed down yesterday, First Appellate District Court of Appeals ruled as follows:

• [A]n arbitrator’s award may only be vacated in very limited circumstances, including, as relevant to this appeal, where “[t]he arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”
• An arbitrator’s authority is limited to that granted to the arbitrator under the terms of the parties’ agreement, and an arbitrator exceeds that authority where her award does not draw its essence from the agreement.
• An award draws its essence from the parties’ agreement where “there is a rational nexus between the agreement and the award, and where the award is not arbitrary, capricious, or unlawful.”
• Deference must be given to the arbitrator’s decision.
• “[T]he arbitrator is the final judge of both the law and the facts, and a court may not substitute its judgment for that of the arbitrator. …
• Judicial deference in arbitration cases is based on a recognition that the parties have agreed to have their dispute settled by an arbitrator rather than the courts and ‘to accept the arbitrator’s view of the facts and the meaning of the contract regardless of the outcome of the arbitration.’
• Here, the arbitrator’s award did not conflict with the express terms of the CBA, and it drew its essence from that agreement, as there was a rational nexus between the agreement and the award and the award was not arbitrary, capricious, or unlawful.
• Consequently, we hold that the trial court did not err in denying the Board’s motion to vacate.

Here is a copy of the decision:

Just to clarify, there is no inherent right of an employee to have discipline held in abeyance while an appeal is being heard. While such a practice may be advisable, fair, and in some cases required by civil service systems, local ordinances, or collective bargaining agreements, neither principles of due process nor just cause mandate a fire department to withhold discipline until all of the employee’s appeals have been exhausted.

Also, zipper clauses are provisions within a contract that state that the written agreement is the entire agreement between the parties, and that neither side (aka… the employees) can bargain over or grieve matters outside of what is in the written agreement. Zipper clauses are often viewed by management attorneys as a tool to stop the employees from grieving changes to past practices and other matters not within the four corners of the agreement. While in theory a zipper clause (particularly when coupled with a strong management rights clause) would seem to prohibit any consideration of past practices, as this case shows the common-sense reality of collective bargaining often leaves the theory… just a theory.