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What's good for the goose: Orange fire fighters compel arbitration

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Orange, Texas, population not quite 19,000, doesn't seem like a place to find a union shop winning anything.

It's as southern as municipalities come and buried so deep in rural East Texas, the locals are practically falling into Louisiana. But this week the Orange Association of Fire Fighters had reason to raise their beer mugs and toast.

The Fourteenth Court of Appeals in Houston reversed a trial judge's ruling in favor of the city and compelled the city into arbitration over a fire fighter's reassignment grievance.

This case was originally appealed to the Beaumont Court of Appeals, but the Texas Supreme Court transferred it "pursuant to its docket equalization authority." (I didn't know there was such a thing; that probably solves a question I had in my last column).

Arbitration is generally something the little guy wants to avoid because of the perception that arbitrators are biased toward the big dog in the room. In this case, the union got upset because in January 2012 the fire chief assigned Battalion Chief Victor Davila to be the new fire marshal.

Apparently, Davila preferred fighting fires to enforcing fire codes. He said he didn't want to be fire marshal and the chief said he didn't have a choice. The union stepped in and said this was a violation of past practice, which was to assign the position voluntarily.

A grievance procedure was initiated and the union sought arbitration, as was stipulated in its collective bargaining agreement. The city refused and the dispute went to trial court. The trial judge dismissed the case in favor of the city and awarded the city attorney's fees.

How it came to that is something of a surprise to me. After reading the March 6, 10-page opinion, this looks like a no-brainer.

Fourteenth District Justice Rebecca Simmons emphasized the broad language of the agreement, which states in part "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 ... shall be adjusted in the following manner ..."

There follows a five-step grievance procedure that culminates in arbitration, if unresolved.

The City of Orange argued that since the union wasn't arguing about compensation, hours or other conditions of employment, this dispute was outside the umbrella of issues addressed in the agreement. The city was being challenged over its right to management, and the agreement recognizes the city's right to "determine the assigned work of employees."

That sounds convincing, but the union said the exception to that was a deviation in the agreement's "maintenance of standards."

Case on Point: Port Arthur Police Ass'n v. City of Port Arthur, 2010; "the city's failure to pay police officers' inclement weather pay was a change in the city's past practices in violation of a collective-bargaining agreement's 'maintenance of standards' provision."

It comes down to this--the city can't just change the way things have always been done without checking with the union.

"When, as in this case, the agreement's grievance procedures are broad, as encompassing 'any controversy ...' we presume the association's grievance is arbitrable absent any express provision excluding the association's grievance from arbitration," Simmons wrote.

"The city points to no such provision in the agreement," she continued. "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."

The Fourteenth District reversed the dismissal and the award of attorney's fees and remanded the case to the trial court to reconsider who gets legal fees. The appellate panel also entered judgment compelling arbitration.

A young Austin attorney, Matt Bachop of Deats Durst Owen & Levy, represented the fire fighters association.

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