Appeals court hears whether BRAVE Act military-leave disputes belong in arbitration or court

The appeals court heard argument in Daniel Berg and IFF Local S 29 v. Commonwealth over whether military-leave benefits under the BRAVE Act must be arbitrated under a collective bargaining agreement or litigated in court.

Appellants' counsel James Eichel told the panel the CBA at issue expressly set the numeric leave calculations derived from earlier law and thus created a conflict with the BRAVE Act's amended entitlements. Eichel said unions repeatedly asked the Commonwealth to agree to grievance arbitration for BRAVE-Act disputes because the contract language locked in earlier statutory terms and the arbitral forum could not modify contract text to adopt the new statutory measure. "When the BRAVE Act was passed... there was no way the BRAVE Act could be administered under the current structure of the collective bargaining agreement," Eichel said; he argued the dispute therefore presents a statutory, not contractual, right for judicial resolution.

Gerard Sidrone of the attorney general's office said the arbitration clause is broad: grievances about the application or interpretation of the CBA go to arbitration and section 6 of the CBA cross-references chapter 33, section 59, and includes a saving clause to construe the contract "in conjunction with applicable law." Sidrone urged that questions about how to reconcile the CBA and statute are precisely the sort of interpretive disputes for an arbitrator.

Justices queried both sides about whether the contract language explicitly incorporated future statutory amendments and whether the arbitrator would be constrained to apply the law in effect at the time the dispute is resolved. The panel also discussed related pending litigation the court has solicited briefing on in a companion case.

Provenance: appellant argument begins at 02:09:57; AG response at 02:26:45.