Labor Relations Fundamentals for Community College Districts

accept an argument that “qualifications” for the assignment include such things as reliability, dependability, etc., if the management’s rights clause were not in the Agreement?

5. B ARGAINING H ISTORY OF THE L ANGUAGE The history of negotiations may give the arbitrator clues as to what the language in question was meant to accomplish. Who initially proposed the language in question? What were the stated reasons given for proposing the language or for any objections the other side may have made to the initial language? What explanation was given as to how the language would be interpreted? What concessions, if any, were made by the initiating party in order to reach agreement?

The arbitrator may rely on oral evidence as to the history of negotiations, but such evidence may be challenged so records of written proposals or bargaining minutes are preferable.

Arbitrators are reluctant to allow a party to obtain through arbitration what they could not acquire through negotiation and, therefore, when a specific proposal was made but not agreed to during negotiations, the substance of that proposal will not, usually, be adopted through contract interpretation. 6. P RACTICE P RIOR TO N EGOTIATIONS Knowledge of management’s practices with regard to a given subject, coupled with bargaining history, may suggest either the parties meant to change such practices or merely guarantee their continuation by agreeing to the language in question. How management has interpreted the language in question since it was negotiated will presumably indicate how the parties intended the language to be interpreted. A union’s failure to grieve a practice, once it becomes aware of its occurrence, may be taken as evidence that the union agreed with management’s interpretation of the language. 8. H IGHER R EGULATIONS AND L AW If the negotiators would not have had the authority to agree to a provision that would conflict with some higher regulation, outside regulation, executive order or law, then given the choice between an interpretation that would pose a conflict and another interpretation that would not, an arbitrator will generally rule that the parties intended to comply with the higher regulation. 9. A VOIDING H ARSH , A BSURD OR N ONSENSICAL R ESULT Arbitrators generally will assume that the parties did not intend their language to have harsh, absurd or nonsensical consequences, unless other evidence clearly points in this direction. 7. P RACTICE S INCE N EGOTIATIONS

Labor Relations Fundamentals for Community College Districts © 2019 (c) Liebert Cassidy Whitmore 48