AMBIGUITIES IN LABOR CONTRACTS: Where Do They Come From?
LaRocco, John B., Dispute Resolution Journal
Many articles have examined ambiguous language in arbitration agreements but few discuss how ambiguities come about. In this article, the author discusses the sources of such language to assist labor arbitrators in identifying and interpreting such language.
The employer runs a seven-day a week., 24-hour-a-day operation. Molly, a third-shift worker (10:30 p.m. to 6:30 a.m.), is required to report to jury duty on Tuesday at 9:00 a.m.. Molly performs her jury duty, reporting at the required time, and she is released at 5:00 p.m. Molly does not report to work for her Monday evening shift prior to her jury service. Nor does she report for her Tuesday evening shift. Yet she seeks to be paid for both missed shifts under the collective bargaining agreement, which provides, in relevant part:
An employee, who is required to report for jury duty who is unavoidably detained from the employee's assigned shift, shall be paid for that shift.
When the employer denies payment for both shifts, the union files a grievance. The employer argues at the hearing that Molly could go to jury duty and still work both shifts. Alternatively, it argues that, at most, she is entitled to miss one shift and receive pay for it.
Although the clause quoted above makes no mention of the shift prior to jury service, the union argues that Molly will be too tired to serve on a jury if she has to work the evening shift before appearing in court. As for the evening shift on the day of jury service, the union contends that Molly will be too tired to work that shift.
The employer argues that if the employer had wanted to pay its employees for the work shifts prior and after jury duty, it could have said so. Instead it agreed to the above clause, which uses the phrase "unavoidably detained from the employee's assigned shift." The employer argues this phrase requires the employee to work the shift prior to jury service and the one after it unless the service conflicts with the latter shift. It contends that "'unavoidably detained" must mean something not in the employee's control. Therefore, if Molly was released from jury duty in time to travel to work, she had no option but to return there, and if she did not she was not entitled to be paid.
The union argues that by using the word "detained," the negotiators meant that an employee cannot cover both the shift and jury duty in a single day.
As demonstrated by the above example, all too often, contract language negotiated in a collective bargaining agreement does not anticipate the dispute that has arisen. Thus, there is always great potential for the contract language to appear ambiguous. This article examines how to determine whether contract language is ambiguous and explains the possible reasons for the ambiguity.1
The starting point for construing the terms and conditions of a collective bargaining agreement is to interpret the express language used. The labor arbitrator must determine whether or not that language is clear, consistent and unambiguous. Understanding how ambiguities can arise in a collective bargaining agreement is integral to ascertaining whether particular language is clear or not. Evidence of negotiating history between the parties and any past practice is not admissible in deciding whether language in a collective bargaining agreement is clear or ambiguous.2
In a dispute over the interpretation of a contract, one party often contends that the language is clear and unambiguous while the opposing party takes the opposing view.3 However, a contract provision is not presumed to be ambiguous merely because one party alleges that the language is unclear.4 An ambiguity most often exists when contract language is susceptible to two reasonable, but differing, interpretations, but it may arise from other causes as well.5
In determining whether a provision is ambiguous, the arbitrator will apply a number of well-accepted rules of contract con- struction. …