Washington Federation of State Employees v Washington State Department of Ecology. June 28, 2017

In a unionized environment, parties live and die by the language to which they have agreed. The collective bargaining agreement governs the labor-management relationship and, when conflict arises, parties rely on the terms of the contract to establish and support their respective positions. But it is not only the words of the contract that illustrate its meaning. Contracts are interpreted both by the meaning of the language to which the parties have agreed, and the meaning the parties have ascribed to the language by their conduct. Put differently, when deciding a contract interpretation case, arbitrators often will balance the plain meaning of the language with the parties’ general practices.

The Employer and the Union in this case were parties to an agreement which contained the following provisions:

An employee may examine his or her own personnel file, supervisory file, attendance file, payroll file and medical file(s). The Employer will provide access to the file within fourteen (14) calendar days of the request. Review of these files will be in the presence of an Employer representative during business hours, unless otherwise arranged…Written authorization from the employee is required before any representative of the employee will be granted access to these files…The Employer may charge a reasonable fee for copying any materials beyond the first copy requested by the employee or his or her representative.

The Grievant asked his supervisor to bring his supervisor file to a performance evaluation meeting. The request was made less than 3 hours prior to the scheduled meeting time. The supervisor informed the employee the file was not needed for that meeting, but would be made available at another time. The following day, the supervisor began a vacation and was out of the office for 10 days. On the day he returned, he emailed the Grievant to inquire whether he still wished to review the supervisory file. Grievant was out of the office on that day, but subsequently indicated he did still want to review it. There is no indication the Grievant made any further request for the file during the supervisor’s absence. The supervisor offered to arrange for the Grievant to view the file the following week. The Grievant did not respond to this offer but the supervisor nonetheless scheduled a meeting the following week for the Grievant to view the file.

On the day of the scheduled meeting, the Grievant’s union representative notified the supervisor he would not be attending the meeting and requested a copy of the file be sent to him via the employee. The Grievant did not appear for the scheduled meeting. Four days later, the Grievant’s shop steward raised a complaint to human resources staff that the file still had not been received. This was ostensibly due to the volume of documentation it contained (the Grievant’s file was more than 200 pages, while the average supervisor file was just 15-20 pages) and the amount of time needed to photocopy the file. A copy of the file was delivered to the Grievant that day, 28 days following his initial request. The Union grieved, alleging violation of the collective bargaining agreement. The case proceeded to arbitration, each party believing that the plain meaning of the language supported their position.

The resulting award cut both ways. Concluding that the language of the contract was clear and unambiguous, the Arbitrator agreed with the Union’s position that the Employer did violate the contract but, on the strength of the same provisions, sided with the Employer in finding that no remedy was required.

The Arbitrator acknowledged the Employer’s good-faith conduct throughout the matter and that its failure to meet the contractual deadline was not an intentional breach of the parties’ agreement. However, the Arbitrator found that the contract language, as written, mandated the Employer’s compliance within 14 calendar days, without exception. The parties’ selective use of the terms “may” and “will” within the relevant provisions “demonstrated an understanding of the difference between…discretion or permission to engage in a certain act, versus…unconditional obligation.” The Employer had therefore committed a “technical violation” of the contract by failing to provide the employee access to the file within the prescribed time period.

With regard to the Union’s requested remedies, the Arbitrator determined that the language of the contract did not require the Employer to provide copies of the file or that it be delivered in a particular format. This finding was substantiated by the parties’ conduct with regard to these provisions, which demonstrated that they mutually considered “access” to employee files to include, but not be limited to, the provision of copies. In addition to this, it could not be shown that the employee suffered any harm as a result of the Employer’s actions. In fact, the employee’s performance evaluation was completed on time, and the Grievant signed it and did not challenge any of its contents. Most grievances seek to make an employee whole for some injury or loss suffered as a direct result of the breach. However, here, the only remedies that could reasonably be requested would have required to the Arbitrator to exceed his authority. In other words, he would have to direct the Employer to do more than called for by the collective bargaining agreement in response to the employee’s request. Naturally, the Arbitrator declined to do so. Because the Grievant was found to have suffered no “measurable injury or prejudice” warranting an affirmative remedy, the Arbitrator ruled he would “not require anything additional of the Employer at this time.”

Effective contract language not only defines the parties’ mutual obligations, it also identifies where the limits are. A failure to meet one obligation does not automatically create another where it did not previously exist. Clear, unambiguous language carries immense weight in dispute resolution, but a clear, consistent practice can support or frustrate a party’s chosen position. Advocates must be prepared to demonstrate how their conduct or administration of the language was consistent with their positions on the issue.

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