- The Washington Times - Monday, December 25, 2000

A federal appeals court decision in the District this month expanded the role of arbitration in collective bargaining agreements to include any disputes about whether arbitration can be used.

The decision involved a job rescheduling of unionized mailroom workers by The Washington Post. The Post did not want the issue decided by arbitration. The Washington Mailers Union No. 29 did want arbitration.

The U.S. Court of Appeals for the D.C. Circuit said that even if the disputed issue is whether arbitration should be used, an arbiter must resolve the issue.

In the Post case, management and mailroom workers disputed how to interpret wording in their collective bargaining agreement that defined when arbitration should be used.

"There's very little or any law on this issue in D.C.," said Mark Wilson, co-counsel for the Washington Mailers Union No. 29. "In essence what it does is say that if it's a toss-up, and it's unclear about whether it's arbitrable or not arbitrable, it's up to the arbitrator to decide. This really does break new ground in D.C."

Two years ago, The Post reached a collective bargaining agreement with the Washington Mailers Union No. 29. Months later, The Post announced that it planned to reduce the number of mailroom workers from 144 to 122. The company offered the 22 extra workers five shifts a week but with no fixed work schedule.

The union argued that the variable work shifts violated the collective bargaining agreement. The Post refused to arbitrate the issue.

When the union tried to compel arbitration in the U.S. District Court, the court ruled that agreement removed the layoff issue from arbitration. The court granted summary judgment for The Post.

The union appealed to the U.S. Court of Appeals for the D.C. Circuit. The union said The Post violated a guarantee of regular full-time employment in the labor agreement. The appeals court said arbitration should be used.

The Post also said the bargaining history of the labor agreement indicated that arbitration was not allowed. During negotiations, The Post tried to keep the agreement from interfering with its personnel decisions.

The appeals court said that because the interpretation of the agreement's wording was the main issue, arbitration was the proper method for resolving it.

"It is apparent that the underlying dispute really turns on the interpretation of "regular, full-time positions," the federal appeals court said. "It would appear that the proper interpretation of this section, which resolves the issue in this case, goes to the merits of the grievance and is not for us to decide."

Because the U.S. Supreme Court has said in previous cases that labor disputes include a presumption they can be arbitrated, this case also should be resolved through arbitration, the court said.

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