Originally from 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.

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