CITY ORDINANCE RESOLVES GRIEVANCE

The grievant began his employment with the city in May. On his first paycheck the following January, he was credited with 56 hours of vacation. Based on his reading of the collective bargaining agreement, he assumed he would receive an additional 24 hours of vacation leave on the anniversary of his hire date. When he discussed this with human resources, he was told he would not get 80 hours (two weeks) until the following January. He filed his grievance.

The Fop/OLC attorney argued that there could be nothing more clear. On the grievant’s anniversary date he would have completed a year and therefore be entitled to 2 weeks vacation. The FOP/OLC presented evidence from an inter-office memo showing that the grievant would receive 2 weeks on his anniversary date (along with 4 other employee’s who would complete their one year’s service during the calendar year).

The City, however, argued the contract referenced the City Ordinance, which contained a different formula for vacation accrual than the contract language read in a vacuum. The Ordinance states

The City argued that the ordinance had always been applied the way it was applied to the grievant. No one could remember when an officer had been hired after March 1 when the pro-rata system would have granted a new hire with less that 80 hours in the next calendar year (one day a month up to 80 hour’s worth) But the ordinance was applied uniformly throughout the city and the Police Department’s contract made specific reference to the City Ordinance. Since the Ordinance referred to calendar year, the grievant was not entitled to 80 hours vacation until the following calendar year. The 56 hours he earned in the previous calendar year were the maximum to which he was entitled for the following year.

The arbitrator agreed with the City. By referencing the Ordinance, the parties were bound by the language of that Ordinance.

(Issued July 17, 2006. Employer-City of Cuyahoga Falls) 

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OFFICER REINSTATED 

The grievant received a five day suspension and demotion from road patrol to the jail prior to the instant case. After her termination in this case, another arbitrator determined that the five day suspension was appropriate but the demotion was not. At the time of her termination in this case, she was working in the jail, but after her first arbitration decision, her status was that of road deputy.

In this termination case, the grievant was charged with sleeping on duty. Several co-workers testified she had curled up with a blanket on many occasion,  was heard snoring on several occasions, and admitted to the investigating officer she had been “snoozing”, not sleeping. Prior to the pre-disciplinary hearing, the grievant requested copies of all the witness statements and tapes of the investigation interviews. The employer did not provide any of the evidence, and some of the evidence was not provided to the FOP/OLC attorney until a week before the arbitration hearing.

The FOP/OLC attorney took issue with the due process denied the grievant during the disciplinary procedures. The arbitrator, however, determined the grievant had not been prejudiced by the employer’s conduct. At the arbitration, the grievant testified she was taking medication which made her drowsy. The pod was cold, which explained the blanket. The arbitrator excluded evidence which the employer accumulated after the discharge, but determined evidence obtained prior to the discharge was adequate to find the grievant had fallen asleep on numerous occasions.

The arbitrator did, however, find mitigating circumstances to set aside the employer’s decision to terminate the grievant: the grievant was taking medication which caused drowsiness; she had no history of falling asleep while on road patrol; the employer was aware of her tendency for drowsiness but gave her no warning of the consequences and she did not try to hide from observers with an intent of going to sleep.

With the combination of the seriousness of the offense and the mitigating circumstances, the grievant was returned to work (as a road deputy) but with no back pay.

(Issued July 10, 2006. Employer-Ross County Sheriff)

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SUSPENSION REDUCED TO ONE DAY

When the sergeant failed to respond to a call in his area, his Lieutenant went to look for him. The sergeant was found walking out of a store with another officer. When asked what he was doing, the sergeant replied he was helping the other officer with a theft report. When the lieutenant asked why he hadn’t responded to the other call, the sergeant told the lieutenant there was an adequate number of officers responding and he didn’t want to add to the confusion. When the lieutenant told him to get back to his area, the sergeant asked if there were a policy of assigned areas for sergeants.  The sergeant then had conflicting stories of what happened next, but the sergeant allowed as how he raised his voice and cursed at the lieutenant, calling him names. Before the sergeant could get in his vehicle to return to his area, the lieutenant told the sergeant to go home. When they met back up at the department, the lieutenant again told the sergeant to go home. The sergeant went home.

The sergeant was given a three day suspension for discourtesy and insubordination, having cursed at the lieutenant and failed to follow the order to return to his area and his subsequent failure to leave the department and go home. He was also ordered to consult with a psychologist to correct his unacceptable behavior.

At the arbitration hearing, the employer suggested to the arbitrator that a three day suspension for insubordination was a light penalty, and if nothing else, the penalty ought not be reduced. The FOP/OLC attorney argued that the grievant had not started the argument, that he was headed back to his area when the lieutenant ordered him to go home, and left the department when the lieutenant met up with him and told him to go home.

The arbitrator allowed as how there was no question the grievant had been discourteous towards the lieutenant, regardless of how the argument had started. What the arbitrator did not see, however, was how the grievant had been insubordinate. He was on his way to his area when the Lieutenant told him to go home, and left the department when the lieutenant told him to go home, not just leave the area. Since the employer had not proved the more serious of the charges on which it based the suspension, the penalty was reduced to a one day suspension.

(Issued July 6, 2006. Employer-City of Warren)

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SUSPENSION FOR INSUBORDINATION UPHELD

According to the grievant, Deputies had always had the option of taking student “ride-alongs” or not. When radioed to pick up a student at the Sheriff’s office, the grievant responded that he didn’t take ride-alongs. When he arrived at the office, the grievant went to the supervisor’s office and was given a direct order to take the student along on his rounds. The grievant and the supervisor had a very civil conversation, but the supervisor reiterated that the grievant was being given a direct order to take the student. The grievant replied that the supervisor could send him home, but he was not taking the ride-along.

Soon thereafter, the grievant received a letter placing him on administrative leave until a pre-disciplinary hearing a few days letter. Included in the notice of a pre-disciplinary hearing was a reprimand for his insubordination. At the pre-disciplinary hearing the grievant and his local representative did not mention the reprimand issued with the notice of a pre-disciplinary hearing.

At the arbitration hearing, the FOP/OLC attorney made two arguments: the grievant believed he had an option to take along the student, and was exercising his option, but just as importantly, the FOP/OLC argued that the employer had already disciplined the grievant with a reprimand. To now tack on a three day suspension was double jeopardy. The employer insisted that the reprimand accompanied the notice of hearing, so the grievant knew there was more to come.

The arbitrator discounted the argument of double jeopardy by the circumstances under which the reprimand was issued.  According to the arbitrator, since it was clear to the grievant that more discipline was to come, he could not expect the reprimand to be the final word, especially since the grievant was placed on administrative leave, a precursor to major discipline. Further, the arbitrator wrote, a three day suspension for a case of blatant insubordination  was lenient on the employer’s part, and was allowed to stand.

(Issued June 28, 2006. Employer- Ottawa County Sheriff)

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VACATION REQUEST SHOULD HAVE BEEN ALLOWED

On September 9, the grievant requested 16 hours vacation leave for September 10^th and 11^th.  She had adequate leave available, but the employer denied the request, stating the request “did not meet time requirement per policy”.  She filed her grievance and requested 16 hours compensatory time as well as a cease and desist order as her remedy.

The applicable contract is the first one between the FOP/OLC and the employer. Prior to the contract, employees were governed by the County’s Personnel Policy, which included a 72 hour notification requirement for vacation requests of less than 2 days. Bargaining history of the applicable agreement indicated that the notification requirement was not included in the vacation section of the contract. The employer argued that since the contract was silent on notification and the employees were provided with a copy of the Personnel Policy which included the 72 hour notice, that under the rule making authority ceded the employer under management rights, the 72 advance notice applied to the grievant.

The FOP/OLC attorney argued that under rules of contract interpretation, when the parties appear to purposely include or exclude language from a contract, they must have done so for a reason. Other leave request sections have minimum notification requirements, but the vacation section did not. There must be a reason for that, and the reason had to be that the parties meant to have no such requirement.

The arbitrator agreed with the FOP/OLC. The arbitrator ordered that employer to cease and desist from using the County Personnel Policy as the guide for allowing or disallowing vacation leave requests (leaving the door open for the employer to deny requests based on “operational needs”), but denied the grievant’s remedy of 16 additional hours of compensatory time because the case was one of first impression and the grievant had not lost vacation time as a result of the employer’s denial of her requested use.

(Issued June 20, 2006. Employer-Clinton County Sheriff)

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INSURANCE CO-PAY RETROACTIVE, TOO

Prior to the expiration of the agreement, the parties signed extension agreements which included retroactivity for all wages and economic benefits. When the parties were unable to reach an understanding for the successor agreement, a SERB appointed fact-finder was assigned to the case. Through mediation, the fact-finder achieved an understanding between the parties which was drafted for signature of the fact-finder.

Included in the fact-finder’s recommendation was a lump sum for the employees in the first year and additional co-pay for health insurance. The insurance read: “The Employer shall maintain, for each employee health and hospitalization insurance at the coverage existing at the time of the signing of this agreement at the Employer’s expense, except that the Employer shall deduct $35 dollars from the employee’s salary each pay period to apply to the cost of such insurance”.

When drafting the final agreement for ratification, the parties were not certain what the fact-finder’s report meant about retroactivity for the insurance co-pay. They called the fact-finder, whose only interpretation was “go forward and not backwards”.

When members received their lump sum payment for the first year, co-pays had been deducted back to the effective date of the agreement. A grievance was filed.

At the hearing, the FOP/OLC attorney argued that the phrase “at the time of the signing of this agreement” was new to the insurance article, and could only mean that the effective date of the agreement notwithstanding, the insurance rates were effective “at the time of the signing of this agreement”. The fact-finder had indicated to the FOP/OLC representative that they were to look “forward, not backward” which the FOP/OLC representative took to his members as the meaning of the insurance article which they were asked to accept.

The arbitrator agreed with the employer’s interpretation and allowed the deduction to stand. The clear (to her) language of the agreement applied all terms of the agreement retroactively, including the insurance co-pay. Members were assessed back to the effective date of the entire agreement.

(Issued  June 7, 2006. Employer- Perkins Township)

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PROMOTION PROCEDURE ALLOWED TO STAND

When the grievant was passed over for promotion from Road Deputy to Road Sergeant, he filed a grievance alleging the employer had misapplied the promotion criteria and deviated from past practice.

Promotions in the department had been the subject of a previous arbitration award, which both parties cited in their presentations. The principle FOP/OLC argument was that the article in the contract which required that past practices continue unless modified by the existing agreement had not been followed. In previous promotion situations, the minimum qualifications had been 8 years service as a road deputy. For the procedure in dispute, the employer had posted a 4 year minimum. Because the reduction in qualifications had increased the pool from 2 to 7, the grievant, in a “forced choice” ranking, had a lower test score than if he had gone head to head with the successful applicant.

At hearing, the employer walked the arbitrator through the process, showing how all contractual criteria had been applied. As to the reduction of experience from 8 years to 6, the employer based his decision on the fact that deputies topped out in pay after 4 years service and possible promotion to sergeant after 4 years gave deputies a wage increase opportunity. Further, pointed out the employer, in a previous promotion opportunity (10 years previous) the minimum requirement had been 5 years, which meant there was no consistent past practice the employer was obliged to follow.

The arbitrator agreed with the employer’s position. Both the grievant and the employer agreed there was no bias in the evaluation. The grievant’s position rested on the increased pool which diluted his chances. The arbitrator opined that the change in minimum requirements was not a violation of accepted past practice, and had a rational which was neither arbitrary nor capricious. The grievance was denied.

(Issued June 1, 2006. Employer- Erie County Sheriff)

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PROBATION PERIOD DEFINED, DISMISSAL ALLOWED

The grievant was hired as a corrections officer in June, 2004. The contract in effect for corrections officers called for a 1 year probationary period, during which time an employee could be dismissed without cause. Before her probationary period had expired, the grievant was given an opportunity to become a deputy sheriff, which also had a one year probationary period. When the grievant was released more than one year after her initial hire date but less than one year from her promotion date, she filed her grievance, stating she was a permanent employee entitled to the due process article of the agreement.

The contract allowed employees who failed their promotional probationary period to return to the classification from which they were promoted. The FOP/OLC attorney therefore argued that if the grievant were not a permanent employee due to her more than one year service, then she should be returned to her corrections position. The arbitrator did not see it that way.

While making a distinction between new hires and promoted employees, the contract also states that “a permanent employee who is promoted…must complete a promotional probationary period before being permanently promoted to the new classification” The arbitrator reasoned that since the grievant had not completed her initial probationary period, she was not a permanent employee, and therefore not entitled to the right of return to her previous position. Since she had never completed any probationary period, she was not entitled to the protection of a permanent employee. Even though the grievant was never told that she could be dismissed as a probationary employee if the Sheriff chose to do so, she accepted the promotion to deputy sheriff. The arbitrator would not speculate about choices the grievant might have made had she known this, and recognized that the grievant had entered a “no man’s land” when she took on a new probationary period without having complete her initial probationary period.

The grievance was denied.

(Issued May 25, 2006. Employer-Montgomery County Sheriff)

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ARBITRATOR ALLOWS DENIAL OF COMPENSATORY TIME USE

On July 4, the employer posted a notice that the department would be conducting department-wide training during the week of August 22-26. The notice stated that no discretionary time off would be allowed that week. On July 29, the grievant requested comp time use for August 22. His sergeant immediately denied the request, at which point a grievance was filed. The grievance originally requested the date for comp time be allowed, but was later amended to grant an additional 8 hours of comp time and asserted the real reason the original request was denied was to avoid the payment of overtime.

The contract provision dealing with use of compensatory time is not unusual, and ends with the phrase “… an employee will be permitted to take compensatory time off within a reasonable time after requesting it.” The employer stipulated that he could not deny the use of compensatory to avoid the payment of overtime. The employer argued that because of mandatory training, the functions of the department would be unduly disrupted if the grievant were granted his comp-time request. The FOP/OLC attorney argued that the request could have been granted if the employer had called in an employee to fill the vacancy.

In an odd twist, the arbitrator concluded that the controlling language on granting requests was the phrase “ within a reasonable time”. To quote from the award

Thus, employees may request a specific date for compensatory time off, and the employer may grant such request, or may deny it without violating (the contract). No reason for such denial is necessary. Only if the employer denies any compensatory time off within a reasonable time from the date the request is submitted does the reason for such denial come into play.

Since the grievant requested a specific date, the employer did not deny the grievant his request within a reasonable time, only a specific time. For this reason alone, the grievance was denied.

(Issued May 12, 2006. Employer- City of Perrysburg)

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EMPLOYER’S CASE NOT CLEAR AND CONVINCING-DEMOTION OVERTURNED

When the grievant responded to a disturbing-the-peace complaint, he and three officers responded and found loud music and a drunk responsible. The grievant, a sergeant, knew the person responsible for the noise and tried to talk to him. Depending to differing accounts, the grievant either entered the residence upon invitation or without. A citation was written, but the resident refused to accept it. According to the grievant, he tried to talk the resident into accepting the citation rather mailing it to him to save time and paperwork.  When the resident was in court some three weeks later, he made the representation that 3 officers had broken into his house without a warrant and ticketed him The department launched an investigation and found the grievant to have made an illegal entry and had used too many officers for a noise complaint. The grievant was demoted to a patrol officer with a review of his performance in 6 months.

The employer used as part of its justification for the demotion an incident involving underage drinking to which the grievant had responded previously.  In response to the employer’s presentation, the FOP/OLC attorney dealt with the previous underage drinking incident and the unlawful entry case which prompted the arbitration hearing. After proving the grievant had done nothing wrong in the first incidence, the FOP/OLC attorney argued the entry case was one of he says-she says involving the drunken citizen and the grievant. The arbitrator was not persuaded by the employer’s evidence and presentation.

The grievant was reinstated to his position of sergeant with no record of any discipline whatsoever.

(Issued May 24, 2006. Employer-City of Bay Village)

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NATIONAL DAY OF MOURNING DOES NOT ADD CONTRACTUAL BENEFIT

Prior to the Mayor declaring a Day of Mourning for the death of President Reagan, the city’s unions were advised of how the City intended to compensate employees who would be required to work while others had the day off. The offer from the City was to compensate employees who worked first shift with compensatory time for hours actually worked during the shift. Employees working second and third shift were not additionally compensated. A class action grievance was filed requesting that the Day of Mourning be treated as a holiday for pay purposes, with all employees equally compensated.

At the arbitration hearing, the Mayor was adamant that the Day of Mourning was not an additional holiday, but a day to allow employees to observe the passing of the President. The holiday provision of the contract, which was cited in the grievance, made no reference to any additional days designated as off-days for other City employees, nor did it call for a universal application for all employees of the department.

The attorney for the FOP/OLC argued that the precedent for payment was established when President Nixon died and a Day of Mourning was declared by the same Mayor. The FOP/OLC was not able to present a document which outlined the method of payment, and the FOP/OLC Associate could only testify to a settlement of some sort being implemented. The FOP/OLC did argue, however, that all other City employees got a day off with pay, and the Police department ought not to be treated differently.

In the absence of evidence to the contrary, the arbitrator determined that the contract did not compel the employer to pay all employees of the department an additional 8 hours of compensatory time when only 4 employees actually worked during the time designated as the “Day of Mourning”.

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MIXED MESSAGES, SHERIFF’S BEHAVIOR NULLIFY DISCIPLINE

Employees of the department are required to pass a physical fitness and agility test annually. The department posted two dates in October and two dates in November for the test. The grievant did not make the two October tests and was advised by posting that testing for him and others similarly situated was mandatory for the November dates. On the second November date he called his supervisor throughout the day to say he was caught babysitting and couldn’t make the date. The supervisor told the grievant on the phone that he would be put on the discipline list.

After the November date, the grievant and 35 other employees were advised by posting of a make-up date in December, with the notation on the posting that failure to attend the make-up date would result in discipline. The grievant took the test in December and passed. Two months later the grievant received a notice of intent to discipline and given a three day suspension.

At the final step of the grievance procedure, the grievant went with his FOP/OLC staff representative to the Sheriff’s office for the hearing. The Sheriff threw the staff representative out of his office and declared he would not allow the staff representative to represent employees of his department. The sheriff then told the grievant he could find another representative or go it alone. The grievant said he did not want another representative and told the sheriff he did not think the discipline was warranted.

In his analysis, the arbitrator opined that an officer ought to know what the word “mandatory” means, and that his supervisor telling him he would be put on the discipline list when he failed to make the last November date should have put him on notice that discipline was imminent. However, according to the arbitrator, when the notice for the December make-up date made a notation that failure to take the test on that date would result in discipline, the grievant had reason to be believe he could complete the test in December and avoid discipline.

Further, when the Sheriff, without apparent cause, denied the grievant representation at his grievance hearing, any discipline that was subject of the grievance had to be set aside.

(Issued April 18, 2006. Employer-Hamilton County Sheriff)

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REPORT WRITING LEADS TO TERMINATION

While making a traffic stop, the grievant and his partner ran a check on the driver and the passenger. The passenger had an outstanding warrant, but the driver had no record. While processing the passenger, the driver left the vehicle and wandered around the scene. The crowd that gathered reported to the grievant that the driver was throwing things in a sewer. One person told the grievant that the driver was throwing away drugs. The grievant checked one grate, but was told it was the wrong one. He went to another grate and found a crack pipe. The grievant arrested the driver and took him to jail.

When he filed his report, the grievant stated that he had seen the driver dispose of the crack pipe. When a member of the crowd that had witnessed the arrest called to complain to the grievant’s supervisor that the grievant had not been thorough at the scene, an investigation started which included a review of the grievant’s report. The driver of the vehicle was released after 3 hours in jail.

The grievant admitted he had not actually seen the driver dispose of the pipe. He said he was trying to conceal the identity of the person who had seen the disposal, who was an informant. He also stated it had been a busy night and an oversight to report that he had actually seen the driver drop the pipe.

When the employer terminated the grievant for filing a false report, a grievance was filed and an arbitrator heard the case.

Despite the FOP/OLC attorney arguing an honest mistake and the employer’s disregard for progressive discipline, the arbitrator upheld the termination. According to the arbitrator, when an offense as egregious as filing a false police report is committed, the employer is within his rights to impose the maximum penalty on an employee without regard for disciplinary steps.

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TEN DAYS SUSPENSION ALLOWED TO STAND

When the grievant heard radio traffic from another department about a speeding motorcycle, he observed a motorcycle coming into his jurisdiction and gave pursuit. The motorcycle was traveling at 90 miles an hour with the grievant close behind. The grievant radioed his lieutenant about the pursuit and was told that as long as the motorcyclist was not making evasive moves he should make the stop on speed. If the motorcycle tried to evade, he should break it off. 

As the motorcycle slowed down, the grievant was told by his lieutenant that if he didn’t make the stop by a certain freeway exit to terminate the pursuit. As the grievant approached the exit, he radioed to say he was breaking off the pursuit. The lieutenant asked the grievant if he had a description of the operator and the grievant said he would try to pull up beside the motorcycle and get an identity. The grievant turned off all emergency equipment and pulled up beside the motorcycle. At that time the grievant indicated he was not pursuing the motorcycle but still had the motorcycle in view. Two and a half miles after the exit where the pursuit was to be terminated, the grievant was told to break off the pursuit.

Two weeks later the grievant was given a ten day suspension for violating the pursuit policy of the department.

The pursuit policy allows pursuits only in the case of felonies. The policy also calls for ending a pursuit if the operator is speeding excessively or using evasive tactics. Further, employees are to terminate a pursuit immediately when instructed by a supervisor.

Unfortunately for the grievant, he had been suspended twice before for violating the pursuit policy.

Despite an effort by the FOP/OLC attorney to convince the arbitrator that the radio instructions from the lieutenant were ambiguous, the arbitrator concurred with the position of the employer and allowed the ten day suspension to stand.

(Issued April 11, 2006. Employer- City of Eastlake)

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PROMOTIONAL DO-OVER ORDERED BY ARBITRATOR

During negotiations for the current agreement, the parties agreed to language involving promotional procedures. Included in the process was an interview with a select management committee, which followed guidelines subject to FOP/OLC consultation. If the guidelines were changed by the employer, the changes had to be submitted to the FOP/OLC prior to their use.

When candidate “A” was promoted to major over candidate “B”, candidate “B” filed a grievance alleging candidate “A” received an unfair advantage during the process. “B” alleged “A” received the interview questions further in advance than “B”, that interviewers consulted with each other during the grading process, and the changes in the scoring procedure were made without prior consultation with the FOP/OLC.

The employer raised an initial objection to the arbitrability of the question,  arguing that the position being sought by the candidates was not a bargaining unit position, and therefore not within the jurisdiction of the arbitrator. Citing a previous arbitration in which the employer used the exact opposite argument and citing past practice, the FOP/OLC convinced the arbitrator he had jurisdiction over the issue.

As to the merits of the grievance, the arbitrator concluded that the grievant had not been prejudiced by the process (the grievant could have asked for a postponement of the interview to study the questions given earlier to the other candidate; discussion of the interviews among the interviewers negated the possibility of a personal agenda of any one interviewer), but that the employer was required to submit changes in the guidelines to the FOP/OLC prior to their use, which the employer had not done. Because of this procedural flaw, the arbitrator ordered the employer to consult with the FOP/OLC over the new guidelines and re-interview the candidates.

(Issued March 17, 2006. Employer-City of Lima)

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TERMINATION REDUCED TO 30 DAY SUSPENSION

While patrolling early one morning in a high crime neighborhood, the grievant heard two men in a parking lot say loudly “What the fuck are the cops doing here?” The grievant stopped the cruiser and approached the men, asking for identification. One of the men started protesting, appeared to be intoxicated, and refused to comply with the grievant’s order. The grievant drew his taser and pointed it at the man, who finally gave the grievant his driver’s license. By the time the grievant had returned the license another deputy had arrived on the scene. The grievant returned the license and the two men departed. According to the grievant, he handed the man a form indicating the nature of the stop and put the department’s copy in his cruiser.

The next day the detainee, who is an attorney, filed a complaint with the department. Five weeks later, when interviewed, the detainee stated he was never provided a copy of the form the grievant said he gave him. The grievant had also failed to turn on the camera mounted on the cruiser when he got out of the vehicle. During the grievant’s interview, he stated he thought he had issued the form, but admitted he had failed to turn on the camera. Witnesses at the arbitration stated that not turning on the camera and not issuing a report were common infractions which received, at most, a counseling letter. In this case, the employer determined the grievant had been untruthful at his interview and terminated him.

At the arbitration hearing, the FOP/OLC attorney challenged the statement of the detainee about the form because all of the officers involved, including the officer in charge who got a call from the detainee soon after the incident, considered the detainee to be intoxicated at the time. The officer who arrived as the grievant was returning the detainee’s license admitted the grievant could have issued the form before his arrival. The FOP/OLC attorney also pointed out that information on the form could not have been obtained from any source other than the detainee, so the form must have been filled out before the detainee departed.

The arbitrator found more credibility with the grievant. Since the employer had not proved the grievant had lied during the investigation, the grievant was only liable for failure to turn on the camera. Since the grievant had previous discipline, the arbitrator imposed a thirty day penalty for the camera infraction. Otherwise, the grievant was returned to work.

(Issued March 17, 2006. Employer-Montgomery County Sheriff)

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BARGAINING UNIT WORK BELONGS TO BARGAINING UNIT MEMBERS

In years past, when the employer had used non contract employees to transport prisoners, the FOP/OLC had filed grievances. On some occasions, the grievances were settled with the employer promising that bargaining unit members would be used in future assignments. On other occasions, the grievant was granted pay for what should have been his work. When the employer used part-time employees to man a shift, the grievance had gone to arbitration and the arbitrator had awarded all adversely affected employees compensation to be distributed by the FOP/OLC.

The instant grievance was filed when a prisoner was transported from Detroit by a private prisoner transportation company.  The employer denied the grievance stating that the work “was not work customarily performed by bargaining unit members”.

The applicable contract sections read:

Work that is customarily performed by employees in the bargaining unit shall not be performed by other non-bargaining unit employees…
The Sheriff agrees not to contract out work customarily performed by bargaining unit members for the duration of this agreement.

Because there was a considerable amount of time between the filing of the grievance and the arbitration hearing, the employer first argued the arbitrability of the grievance. The Arbitrator concluded that no harm had come to the employer by the delay, and therefore allowed the proceedings to go forward.

On the merits, the employer used a circular argument that if the employer used non- bargaining personnel to perform the work, then it must not be work customarily performed by bargaining unit members. The FOP/OLC attorney was successful in arguing that past grievance history showed that the FOP/OLC had never ceded work to non-bargaining unit personnel and that past settlement of grievances had favored the FOP/OLC position.

The arbitrator agreed with the FOP/OLC. He ordered that all transport work first be offered to bargaining unit members on duty or called out on an overtime basis, and that the employer provide a list of all occasions since 2003 where non-bargaining unit personnel had performed bargaining unit work and forward the total compensation due to the FOP/OLC for distribution to the adversely affected members of the bargaining unit.

(Issued March 10, 2006. Employer-Columbiana County)

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ALL GRIEVANTS AWARDED 11 HOURS COMP TIME

In a grievance that took a long time to get to arbitration, the employer contested whether the grievance was even arbitrable.

The collective bargaining agreement had a clause which stated:

Should an employee of the County receive and additional holiday time off not included in Section 1 above (a list of holidays) bargaining unit employees shall receive compensatory time equal to holiday time off given to other county employees.

In January, the bargaining unit chairman would approach the employer with a list of county employees and the holiday time they had received in the preceding year and request compensatory time for members of the FOP/OLC bargaining unit  During the January in question, the collective bargaining agreement had expired and a successor agreement was being negotiated. The bargaining unit chairman made a list which included five days another county department did not work during the end of year holidays. The chair made a claim for those hours and 26 others, including some hours in the upcoming year. The employer offered to settle for significantly fewer hours, but the chairman declined the offer.

The FOP/OLC sent a notice of intent to arbitrate, and requested a list of arbitrators. The employer’s representative twice did not respond to requests to strike names. After several discussions with the FOP/OLC attorney, the employer finally agreed to take the question of arbitrability to arbitration, along with the question of merit of the grievance.

Determining that the grievance was arbitrable, the arbitrator sustained the grievance in part. The 5 days the other county agency enjoyed were not holidays but a year end accommodation of clients, and had been utilized by the agency for years and never been claimed by the FOP/OLC bargaining unit as qualifying for compensatory time. Since the new contract was retroactive and did not contain the old holiday language, the claim for time in the new year was also not allowed. In the end, bargaining unit members were awarded 11 hours of compensatory time.

(Issued February, 2006. Employer-Columbiana County Sheriff)

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GRIEVANT AWARDED FULL TUITION ALLOWANCE

The collective bargaining agreement contained a section which allowed:

Bargaining unit members may be reimbursed for non-mandatory training up to $500 annually for technical school or college course expenditures for job-related development. Reimbursement is subject to pre-approval of the City Manager and Chief of Police.

The grievant had received the maximum allowance ever since tuition reimbursement had been in her agreement. She had earned two bachelors degrees in criminal justice. Prior to enrolling in a masters program in community counseling, she received the chief’s approval to pursue that degree. For two years she received the full $500 reimbursement. When she applied for reimbursement in 2005, the City manager approved only $100. The City stated they were short of funds and the courses were not sufficiently job-related. A grievance was filed requesting full payment of the $500.

The FOP/OLC attorney argued that the City had granted prior approval for the program, had fully reimbursed the grievant for the first two years of her program, and had chosen to deny the third year’s payment because of the grievant’s union activities.

In the opinion of the arbitrator, the City acted arbitrarily and capriciously when it denied the third year’s reimbursement. The grievant had met all the requirements for eligibility, the City had recognized the validity of her claim for two years, and could not now claim that the course work was not job related. The grievant was awarded the balance due from the reimbursement program.

(Issued February 10, 2006. Employer-City of Newtown Falls)

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CONTRACT DOES NOT SUPPORT SEPARATE REQUESTS FOR VACATION

Patrolmen and ranking officers are included in the same agreement. The vacation article of that agreement calls for members to request vacation dates in November for dates in the following year. When a conflict arises in requested dates, seniority will prevail. The language had remained the same for several generations of contracts. After  an incident in which a patrolman was denied his vacation request because a sergeant had requested the same dates, he filed a grievance asserting that patrolmen and sergeants should be separated for the purpose of the vacation article and the selection process.

At hearing, the FOP/OLC argued that the patrolmen, sergeants and dispatchers should be treated all alike. The dispatchers have selection rights among dispatchers only.

The City argued that the dispatchers are treated differently because the dispatcher’s contract has different vacation language. That language reads “In the event the employer hires additional employees in dispatch, the employer and the union may agree to have such employees select vacations separate from patrolmen.” No such language exists in the patrolmen/sergeants contract. Because of this distinction, the parties obviously meant for dispatchers and patrolmen/sergeants to be treated differently. Since the parties had historically combined the patrolmen and sergeants when determining vacation dates, the contract must have that meaning.

The arbitrator agreed with the city. All contract language has meaning, either by inclusion or omission. Since the parties made a distinction in the dispatcher’s contract, they must have intended not to make the same provision apply in the patrolmen/sergeant’s contract. Further, stated the arbitrator, the parties had combined the two classifications for years, to the mutual understanding of both parties.

(Issued February 13, 2006. Employer- City of Ashtabula.)

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AGAIN-CHIEF MUST JUSTIFY DEVIATION FROM SENIORITY CHOICE

When an officer in the department was denied his shift selection pursuant to the seniority clause of the agreement, he filed a grievance which was heard by an arbitrator in July, 2005. The arbitrator in that case sustained the grievance, stating that in order for the chief to make a shift assignment contra the agreement, he must make a case for the assignment and allow the FOP/OLC the opportunity to contest his decision, so as to diminish arbitrary and capricious action on the part of the chief.

In the instant case, a junior employee bid for a shift which was awarded to a senior employee who was on a last chance agreement. The last chance agreement waived the employee’s right to select his shift and allowed the chief to assign him a shift. The chief assigned the last chance employee to a shift preferred by the grievant. Four days before the arbitration, the employer offered the grievant the shift he preferred and argued at hearing that the grievance was moot. The employer also argued that the parties were currently in negotiations with the intent of altering the shift selection process, thus making the arbitrator’s decision advisory. The arbitrator decided against the employer’s arguments of mootness and decided the grievance on the merits.

For the FOP/OLC attorney, the conclusion of this grievance was determined in the decision of the previous grievance. The chief had offered no justification for deviating from seniority based shift selection, and, in fact, could have assigned the last chance employee another shift without disrupting operations and allowed the grievant the shift he preferred.

The arbitrator agreed with the FOP/OLC and ordered the city to follow the opinion of the previous arbitrator and follow the seniority clause unless it can demonstrate an “extenuating circumstance that makes preemption necessary.”

(Issued January 31, 2006. Employer-City of Cuyahoga Falls.)

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TWENTY YEAR PRACTICE SUSTAINS GRIEVANCE

For as long as anyone on the department could remember, the employer would call in an officer for overtime duty whenever there was only one officer on a shift. With the City facing a budget crisis, the chief suspended the practice of calling an officer with the rationale that the chief or a detective fulfilled the need to have another officer on a shift. The department failed to call an officer on 11 occasions during a four month period, and a grievance was filed protesting all 11 occasions.

Language in the collective bargaining agreement had remained unchanged for at least 5 contracts, which stated “The City will continue the current call-out policy on overtime”.

The City argued that the management rights clause of the agreement permitted it to do what it liked with staffing levels, which was what the grievance was all about. The City noted that in several past negotiations the FOP/OLC had tried to insert a minimum staffing clause in the contract which called for three officer to be on duty at all times. The minimum staffing requirement had never been included in the final agreement.

The FOP/OLC attorney called witnesses, including a 28 year veteran, who testified that the City had always called an officer in at overtime rates when there was going to be only one officer on a shift. The practice had been followed by five different chiefs and the practice had never been violated. The fact that the FOP/OLC had proposed and failed to establish a minimum staffing of three officers did not alter the continued use of the language which called for calling in an officer when only one officer was serving on a shift.

The arbitrator concluded that the City had a contractual obligation to “continue the current call-out policy on overtime”. Whatever the City believed about its avoidance of minimum staffing, it had already agreed to a staffing of at least two officers on each shift and followed that practice for over 20 years. No matter what budget problems the City was facing, it could not simply abrogate the agreement and its long standing application.

Because of the economic implications of the award, the arbitrator accepted the FOP/OLC and City’s suggestion of remanding the issue to the parties for resolution.

(Issued November 14, 2005. Employer-City of Ironton)

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SUSPENSION REDUCED BY 20%

At 1:45 A.M. when the grievant called in to ask how the roster looked for his 8 A.M. shift, he was told by the dispatcher that there was a full compliment of officers for the shift He then requested the dispatcher to ask the on-duty supervisor to allow him to use compensatory time-off. The dispatcher relayed the word from the supervisor that there was to be a special detail the next day and the request was denied. If he wanted to find out if circumstances had changed, the grievant was told to call in a half hour before his shift to see if the Lieutenant could spare him. The grievant cursed at the dispatcher and said he wasn’t going to call again in the morning and was taking the time off. The grievant later apologized to the dispatcher. At the end of the conversation with the dispatcher, the grievant acknowledged he was expected to show up for work.

When the grievant didn’t show up for his shift, he was called at home and reported 2 hours after the commencement of the shift.

The grievant was charged with insubordination, shift strength and time-off usage, and a section pertaining to giving a full days work for a full days wages and given a ten day suspension.

The employer had a prima-fascia case of insubordination, which the FOP/OLC attorney could not get around. The attorney argued disparate treatment, citing instances in which other employees who had committed serious offences had received less punishment. The arbitrator, however, distinguished the differing cases and found no case of disparate treatment. The arbitrator did, however, give credit to the grievant for apologizing to the dispatcher and for acknowledging that the proper procedure for contesting the denial of compensatory time-off was to work the time and file a grievance over the denial.

With the grievant having an otherwise good work record and recognizing his failure to follow proper grievance procedures, the arbitrator reduced the 10 day suspension to an 8 day suspension.

(Issued December 20, 2005. Employer-City of Eastlake)

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POSTING REQUIRED FOR BARGAINING UNIT MEMBERS

Soon after a new Sheriff was elected, a lieutenant announced her retirement. Taking the opportunity to restructure the department, the Sheriff announced the abolishment of the Jail Administrator’s position and assigned the incumbent administrator to the vacancy in the Lieutenant’s position. The Lieutenants are included in the bargaining unit. The administrator’s position is not.

A class action grievance was filed by the Sergeants in the bargaining unit claiming the Sheriff had not followed the terms of the contract pertaining to the filling of bargaining unit vacancies.

The pertinent provisions include:

 “…all appointments to positions covered by this agreement, other than original appointments from eligibility lists, shall be filled in accordance with this article.

A vacancy shall be defined as any position which was formerly occupied but is now open for any reason including the death, retirement, promotion, discharge, or resignation of the incumbent and which the Sheriff intends to fill for a period in excess of 12 months.

The vacancy shall be filled or abolished within 6 months of the occurrence of the vacancy.

….When the employer determines that there is a position opening in a recognized division of the Sheriff’s office and the employer intends to fill the position, a notice of vacancy shall be posted on the bulletin boards where employees notices are usually posted for 7 calendar days prior to filling the vacancy….Vacancies shall be awarded subject to the following conditions:

A.     Sick time usage

B.     Job performance and review of disciplinary record;

C.     Work experience and additional skills

D.     Classification seniority; and

E.      Personal interview

…If there are no applicants, the vacancy may be filled by a new hire or a less senior employee.

Promotions for (employees) will first be offered to employees within the classification where the vacancy exists. If the vacancy is not filled within the classification, then the employer may select a less senior or non-employee.

The employer began his presentation by arguing the sergeants who filed the grievance had no standing to file the grievance. Inasmuch as the employer had not raised this argument with the FOP/OLC prior to arbitration, the arbitrator dismissed the employer’s argument of standing (also stating that the Sergeants had standing whether the employer saw it or not.). The employer argued further that management rights allowed the Sheriff to fill the vacancy as he saw fit.

The FOP/OLC convinced the arbitrator that the clear language of the contract did not allow the Sheriff to simply fill the Lieutenant’s by demoting the Jail Administrator into the position.  The arbitrator held the employer placed the Jail Administrator into the position in violation of the Agreement.  As a remedy the arbitrator ordered the employer to post the vacancy created by the retirement of the lieutenant and to follow the procedures contained in the Collective Bargaining Agreement for the filling of a vacancy.  

(Issued November 21, 2005. Employer- Richland County Sheriff)

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VIOLATION OF LAW VIOLATES CONTRACT

When a corrections officer had surgery on her knee, a gender specific position  in the jail became vacant. The grievant, a dispatcher, was ordered by the lieutenant to work as a combination dispatcher/corrections officer to fill the need for a female in charge of female prisoners. The grievant had been an employee since 1992, when she was hired as a dispatcher/corrections officer. In 1999 the department created the classification of Corrections officer, and changed the grievant’s classification to dispatcher, having her relinquish all rights to matron duty.

Even though the grievant had, from time to time, volunteered to work as a combination dispatcher/corrections officer since 1999, when the lieutenant asked for a volunteer for the duration of the sick employee’s leave, the grievant did not volunteer and was ordered to work the double duty. The grievant had received no training for corrections work since 1999, and no instruction on various responsibilities including the distribution of meds. After ordered to serve double duty in the jail, she then filed her grievance. In all, the grievant served in the dual capacity for 65 days.

The contract allowed the employer to make assignment within the department, but the contract also provided that

Where (the) agreement makes no specification about a matter, the (parties) are subject to all applicable State or local laws pertaining to the wages, hours and terms and conditions of employment for public employees.

The contract also stated that the “(Employer) shall attempt to correct unsafe working conditions and see all that safety rules and safe working conditions are followed by the employees.

The employer argued at hearing that the contract allowed the assignment of employees to perform the work the grievant had performed.

The FOP/OLC attorney argued that a), the assignment and use of a dispatcher to perform corrections duty without training violated State rule requiring corrections employees to receive training with 60 days of  employment and b) that the use of a dual assignment created an unsafe condition not only to the grievant but to co-workers, inmates and the public at large.

The arbitrator concluded that the employer otherwise had the right to make assignments. But since the contract also required the employer to follow State Law concerning training, which the assignment violated, and provide a safe work environment, which the dual assignment created, the grievance was sustained.

As a remedy, the arbitrator ordered the employer to pay the grievant overtime rates for all hours worked during the 65 days she worked the dual assignment, granted the grievant seniority for all time worked in the jail, and ordered the employer to cease and desist from compelling the grievant to work in the jail without proper training.

(Issued December 21, 2005. Employer-Coshocton County Sheriff)

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TERMINATED EMPLOYEE RETURNED WITH FULL BACK PAY

The grievant, and eight year employee, had been living in another community with his girlfriend for a year and a half. An argument started which escalated into pushing and shoving by both parties. She grabbed the officer’s duty belt, which included his weapon, and started beating him and his vehicle. The officer called 911 to summon police officers. While waiting for help, he held his girlfriend on the ground. The police arrested both parties, and made the observation that the grievant had received the worst of the punishment. Both parties were charged with domestic violence. The prosecutor later reduced the charges to disorderly conduct, a minor misdemeanor, to which the grievant plead no contest and was fined $187.50.

The employer had an outside department investigate the incidence. The investigator recommended the grievant receive a ten day suspension. When the letter for a pre-disciplinary hearing went to the grievant, he was accused with gross misconduct, stating he had been charged with domestic violence, and that a ten day suspension was recommended. Given the option of waiving the hearing, the grievant informed the Chief he was exercising that option and waived the hearing. The Chief then wrote to the Mayor and recommended termination. The grievant was terminated pursuant to the Chief’s recommendation.

At the hearing on the grievance, the attorney for the FOP/OLC argued two main issues. The grievant was charged with gross misconduct, but the department’s rules defined gross misconduct as “…convicted of any criminal offence …excluding minor traffic offences and criminal offences classified as minor misdemeanors”. Since the grievant could not, by definition, be guilty of gross misconduct, and was not charged with any other violation, he should not receive any discipline. Moreover, argued the FOP/OLC attorney, it seemed the grievant was being punished for exercising his right to waive his pre-disciplinary hearing. He had not been put on notice that termination was on the table, so he did not see a need to attend the hearing, which was his right. For the employer to impose the termination penalty after advising the grievant that his job was not at risk, denied the grievant due process.

The arbitrator ruled in favor of the FOP/OLC and the grievant. The right to a pre-disciplinary hearing is a right of the accused. For the employer to put the grievant at a disadvantage for waiving his right based on knowledge given by the employer denied the grievant the fundamental right to defend himself against the employer’s decision. The employer had no justification for its action.

The arbitrator also believed the employer failed to prove its case that the grievant was responsible for the actions with his girlfriend. Had he wanted to hurt her, he most certainly could have, but all credible testimony indicated the grievant was trying to de-escalate an unfortunate situation. Because the grievant was not guilty of gross misconduct, as charged, no penalty could be imposed on the grievant. The grievant was ordered reinstated with full back pay and benefits.

(Issued December 15, 2005. Employer-City of Cuyahoga Falls.)

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GRIEVANT’S BEHAVIOR MERITS TERMINATION

The grievant was driving her personal vehicle toward her home when she approached a road repair crew working on a street along her normal route home. A flagger with the construction crew directed the grievant to take an alternative route. The grievant decided she was not going to be rerouted and inched toward the street which had recently been repaved. The flagger stood in the path of the grievant’s vehicle, but the grievant kept inching her way into the blocked-off street, pushing the flagger backward. The flagger stumbled and struck the grievant’s vehicle with the flagging pole. Both the flagger and the grievant called the police department at which the grievant was employed as a dispatcher.

The day the grievant was indicted an four counts, she was given a termination notice by the employer. However, the termination was rescinded pending an investigation of the incident, and the grievant was placed on administrative leave. Following the investigation, the grievant was again terminated. Following her termination, the grievant pled no contest to the two least serious charges and paid a fine as well as attended anger management classes. During the processing of her grievance, the employer amended the cause of discharge letter to include her being found guilty of the two minor misdemeanor charges.

Despite arguments made by the FOP/OLC attorney that the grievant and the flagger had mutually engaged in an argument, that the employer had made procedural mistakes with the disciplinary charges,  and that the grievant was the victim of disparate treatment because her husband was the chief of police involved in a dispute with the new city manager, the arbitrator upheld the termination. Though the procedure was flawed, said the arbitrator, the flaw was not prejudicial to the grievant, whose behavior was so egregious she would have been terminated under a perfectly executed procedure.

(Issued December 10, 2005. Employer-City of Ashtabula.)

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TEN DAYS REDUCED TO THREE

A corrections officer was dealing at a “Texas Hold-em” tournament at a local tavern when the game was raided. She cooperated with the authorities and was not charged. The game had been advertised in the local newspapers and the tavern owner assured her the game was legal. The owner of the tavern and the operator of the tournament were each fined $500. The corrections officer was suspended 10 days.

At the arbitration hearing on her grievance, the FOP/OLC attorney argued that such tournaments were widely held, the Sheriff was aware that other employees had participated in such tournaments and had done nothing about it and the grievant was not aware such games were illegal. The FOP/OLC also presented evidence that another employee had been convicted in another jurisdiction if gross sexual imposition and underage drinking, served a three day jail sentence, and received a three day suspension, which he served concurrent with his jail sentence. The grievant in the case at arbitration had not been convicted of anything, yet was suspended for 10 days. The Sheriff’s response to this disparity was that the conviction of the other employee had occurred outside of the county and surrounding area.

The arbitrator concluded that the grievant knew, or should have known, that participating in the tournament was illegal, and therefore had violated department rules. The distinction the Sheriff drew between the levels of punishment for the convicted employee and the grievant in this case was lost on the arbitrator. The suspension suffered by the grievant exceeded the fine imposed by the operator of the tournament and the tavern owner. The arbitrator reduced the suspension to three days and ordered the return of lost wages in excess of the three day suspension.

(Issued November 23, 2005. Employer-Tuscarawas County Sheriff)

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NEW CONTRACT LANGUAGE DOES NOT ELIMINATE POLICY

The Sheriff had an absence policy whereby employees were charged with an occurrence for each unexcused absence and were able to earn a credit for having perfect attendance during each 122 day work period.  The policy also set forth various levels of discipline for an increasing number of occurrences.  The labor agreement merely referred employees to this absence policy.

When the parties negotiated a successor agreement, the Sheriff proposed an extensive sick leave article.  Included in this article was language that said “the Employer’s absence policy . . . shall be amended to comply with this Sick Leave article.”  The FOP/OLC understood this provision to mean that the new contract language replaced the absence policy thereby eliminating the occurrence/credit/discipline schematic under the policy.  The FOP/OLC accepted the Employer’s proposal and ratified the agreement.

When the FOP/OLC representative subsequently stated her understanding of the contract changes to the employer’s representative as to the elimination of the policy in lieu of the contract, the employer’s representative challenged the FOP/OLC representative’s interpretation in a series of letters between them. The FOP/OLC made it clear that the bargaining unit would challenge the policy the first time the employer imposed discipline based on the policy.

The contract (and the policy) included a requirement that employees calling off sick had to do so an hour before their tour of duty. Several months after the effective date of the new contract, the grievant, who tried to treat his illness to determine if he could report for duty, called in 53 minutes prior to the commencement of his shift. The Sheriff suspended the grievant for two days under the absence policy.  The grievant had previously received a one day suspension for a violation of the absence policy.  When the grievant filed his grievance, the Sheriff contested the timeliness of the grievance as well as the grievant’s objection to the application of the policy in light of the contract changes.

At arbitration, the Sheriff continued to argue the arbitrability of the grievance. His position was that the FOP/OLC had failed to grieve the language when it went into effect. Several months had passed since the effective date, which made the challenge to the policy untimely.

The arbitrator agreed with the FOP/OLC that the grievance was timely. When the employer’s representative did not question the FOP/OLC’s statement that the policy would be challenged the first time the policy was applied in a discipline matter, the employer acquiesced to the grievance as the proper vehicle for the challenge. 

The arbitrator did not agree, however, with the FOP/OLC’s interpretation of the contract negating the sick leave policy which had been in effect for 9 years and which was referenced in the contract itself. Despite the FOP/OLC’s impression, the clear language of the contract implied the continued existence of the sick leave policy, which was modified to include the new contract language. Because the policy remained in effect, and the grievant had violated the policy, the two day suspension was allowed to stand.

(Issued November 1, 2005. Employer-William’s County Sheriff)

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RULES NOT UNIFORMLY APPLIED, DISCIPLINE OVERTURNED

Soon after the department issued an order requiring all crime scenes to be processed, with the admonition “Everything will be printed and photographed”,  it issued a follow-up advisory that in the event a scene did not contain physical evidence, the investigating officer was to report the reasons for not obtaining any evidence. When an evidence technician did not take photographs or process evidence, a supplemental report was required.

When the grievant, an evidence technician, was summoned to a scene, she did not take photographs or dust for prints. In her supplemental report, she explained why no evidence was processed. The employer held a pre-disciplinary hearing and suspended the grievant for three days for failure to process the crime scene in violation of the department directive.

The relevant contract terms include:

…fair and equitable treatment will be given to all employees in regards to overtime, training, work assignments, discipline, promotions, wages, hours of work positions and terms of this contract…

…All such rules and orders shall be applied uniformly to the group of employees to which they are intended.

The grievance cited a violation of the above referenced portions of the agreement, but not a violation of the “just cause” provision.

At the hearing, the FOP/OLC attorney provided documents showing ten cases during a two month period in the same year in which the grievant had been charged where the officers, including evidence technicians, had not done what the department had suspended the grievant for not doing. The department’s witness’s response to this evidence was not adequate for the arbitrator. The FOP/OLC attorney successfully convinced the arbitrator that the employer had applied the rules differently to the grievant from other employees similarly situated to the grievant.

The grievance was sustained and three days back pay awarded to the grievant.

(Issued June 13, 2005. Employer-City of Riverside)     

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EMPLOYER PROVIDES PAID LEAVE; DENIES VACATION PAY

With 24 years and 9 months service, the grievant was determined to be medically incapable of providing continuous service to the employer. Alleging he was injured in the line of duty, the grievant and the FOP/OLC entered into discussions with the employer about processing the grievance concerning the denial of injury leave. As a result of those discussions, the City agreed to put the grievant on paid administrative leave after he had exhausted all of his sick and vacation leave in order to give the grievant 25 years of service and eligibility for a disability pension. The grievant withdrew his grievance concerning the denial of injury leave and was carried on the City payroll for 3 months of administrative leave 

Upon reaching his 25^th anniversary, the grievant severed employment with the City. Since his anniversary date also triggered the renewal date for vacation, he requested the City pay him for his accrued vacation. The City refused and a grievance was filed.

The arbitrator was faced with a situation in which the City had provided a benefit which was extra-contractual in an effort to resolve a grievance and as a favor to the grievant. There was no written record of the settlement discussions, but a recollection of the grievant asking the employer to “just get me to 25 years”. In his analysis, the arbitrator reasoned that the three months pay for which the City received no services more than offset the 5 weeks pay the grievant claimed as his due. Although the City might have made it clear to the grievant that upon his separation he would not receive the benefits to which he would have been entitled had he actually worked for the City, the arbitrator concluded the City could charge the vacation leave against the administrative leave time and was under no obligation to pay the grievant for his accrued  vacation leave.

(Issued July 18, 2005. Employer-City of Deer Park).

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EMPLOYER DID NOT FOLLOW DISCIPLINE PROCEDURES

The grievant failed to report for a special duty assignment. A pre-disciplinary conference was held with the grievant, his representative, the Chief of Police and the Human Resources Director. After consultation between the Chief and the H.R. Director, they decided to reprimand the grievant. Twenty-one days later, the grievant was issued a reprimand over the signature of the Assistant City Manager. The ensuing grievance did not allege a lack of probable cause for the reprimand, but for the failure of the City to follow discipline procedure as provided in the collective bargaining agreement. The grievant’s requested remedy was for the reprimand to be removed from the file due to the failure of the City to follow proper procedures. At the final step of the grievance procedure, after the City had denied the grievance, the Associate for the bargaining unit told the City’s representative that the FOP/OLC intended to arbitrate the grievance.

The applicable language for discipline reads:

Within five calendar days after the conference, the Chief of Police shall do one of the following:  Dismiss the allegations as unfounded without record; or Impose appropriate discipline of record

At the hearing, the employer argued that the arbitration was not timely, because the intent to arbitrate letter was not received by the City until for more than a month after the final answer of the City, while the contract required a notice within ten days.  The FOP/OLC argued that the Associate for the unit was fully empowered to notify the City of the FOP/OLC’s intent, as had been the case in previous grievances. Citing arbitration decisions provided by the FOP/OLC attorney, the arbitrator ruled that the notice-of-intent  had been properly served.

The arbitrator also agreed with the FOP/OLC that the employer’s handling of the discipline process was not in accordance with the agreement. 1) The discipline was not issued by the Chief of Police but by the Assistant City Manager. The contract required the Chief to issue discipline and 2) the agreement required the notice of the Chief’s decision to be issued within five days of the conference, and certainly not 21 days after the conference.

The Agreement does not allow for the arbitration of reprimands. The FOP/OLC did not argue the merits of the reprimand itself, only the procedure by which is was issued.  The FOP/OLC sought to have the reprimand expunged because of flaws in the procedure, but the arbitrator stated that the grievant was not harmed by the procedural flaw , since even if the City had followed the proper procedure the reprimand was not arbitrable, and therefore did not grant the requested remedy. The City was ordered to follow the contractual procedures in all future discipline.

(Issued October 28, 2005. Employer-City of Mason)

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NO INSUBORDINATION-SUSPENSION REDUCED

When a stolen vehicle was spotted, the grievant, along with two other officers and the sergeant, gave pursuit. After a while, the other officers and sergeant dropped off, but the grievant continued. The pursuit lasted for 18 minutes and went beyond the city and county boundaries. The Department’s rule for pursuit:

…officers are absolutely prohibited from initiating or participating in a vehicular pursuit unless the officer has probable cause to believe that the suspect or suspects being pursued has committed a felony, and element of which is the infliction, attempted infliction, or threatening infliction of serious physical harm to human life as defined in Section 2901.01 of the Ohio Revised Code.

The grievant followed the suspect at a high rate of speed into the next county. When on the radio with the chief, the grievant was told to continue the pursuit at “a slow rate of speed if you can”. Soon after the incident, the grievant attended a pre-disciplinary hearing at which he was found guilty of violating the pursuit policy and disobeying a direct order from the chief.

The City’s policy for a first violation of the pursuit rule is a three day suspension, so for that violation the grievant was given three days. For the insubordination violation, the grievant was given an additional 12 days, for a total suspension of 15 days.

At the hearing, the FOP/OLC attorney argued that only a month previous, another officer had engaged in a pursuit and received no punishment, thus establishing a precedent for permissible pursuits. As to the insubordination charge, the FOP/OLC argued that the chief had given a conditional order which the grievant had followed i.e. he slowed down.

In a short opinion, the arbitrator agreed with the City that the rule on pursuits was clear and unambiguous and the grievant violated it, the previous incident notwithstanding. However, stated the arbitrator, the grievant could not be guilty of insubordination because the chief had given a conditional order to the grievant which left the grievant with some discretion.

The City was ordered to return the time is had imposed for the insubordination charge.

(Issued October 26, 2005. Employer-City of Eaton)    

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CITY HAS THE RIGHT TO DENY ONE DAY OF VACATION

The grievant requested a week of vacation, which was granted. After reviewing his vacation itinerary, the grievant requested an additional day be tacked onto his initial request. The second request was denied. A grievance was filed.

The collective bargaining agreement divides vacation requests into two categories:

18.3….If the City approves vacation leave requests involving one or more weeks of leave, it will make every reasonable effort to allow the employee to take that approved leave, absent exigent circumstances.

18.4          …leave may be taken in increments of not less than one hour periods, subject to the operational needs of the division and the approval of the Chief of Police.  Requests…should not be denied unless the City has sound management reason for doing so…

During the previous contract negotiations, the FOP/OLC bargaining committee had complained about an inability to get vacation time off when they wanted it. The FOP/OLC had proposed a language change to the agreement that required the City to approve vacation leave requests unless the granting of the request would put the shift at more than one below the minimum City requirement. The City rejected the proposal, and compromise language was adopted which created a new section 18.3 which differentiated week-long requests from requests of shorter than a week.

During the hearing, the Chief justified his denial of the one day request because it would have required another officer to fill the shift at overtime rates. The chief believed that avoiding overtime was a “sound management reason for doing so”. The Chief conceded that had the original request included the additional day attached to the week-long request, he would have had to approve it.

The FOP/OLC attorney argued that the use of overtime was not a good reason for denial of the request. The additional day attached to the week-long request was not another request, but was part of the longer request previously approved which required “exigent circumstances” to deny the request, not “sound management reason”.

The arbitrator denied the grievance. When the parties negotiated the agreement which created two classes of vacation requests and different standards for denial of each, they were aware of what they had done. The arbitrator agreed with the City that the FOP/OLC was trying to achieve through arbitration what it could not achieve through negotiations. The grievant had made two separate requests, which the contract allowed to be handled differently.

(Issued June 17, 2005. Employer-City of Urbana)

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PENALTY REDUCED TO ONE DAY SUSPENSION

As a Deputy Dog Warden, the grievant was called to back up a co-worker when a dog owner became verbally abusive when asked for identification. When the dog owner refused to comply with the ID request and continued to be abusive, the grievant told the owner she was under arrest. According to the grievant, but denied by the dog owner, who was a witness at the hearing, the dog owner held up a can of mace and threatened the grievant. The grievant drew his weapon and pointed it at the owner, who fled inside her house and locked the doors. The City police arrived and issued the dog owner a citation.

Back at the station, the Warden, hearing the account of the incident, asked the grievant to submit a report. A week later, the Warden reminded the grievant about the requested report. When the report was not forthcoming, the Warden again requested a report. After the grievant returned from unrelated injury leave, the Warden gave the grievant a written order to complete the requested report, with which the grievant complied.

The grievant was suspended three days for violation of the firearms policy and failure to follow orders.

The employer cited the firearms policy which prohibited firing a weapon except in cases of imminent harm. The employer argued that implied in the rule is the unholstering of the firearm. Further, the grievant had ignored three requests to prepare a report. Though a report was finally provided, its preparation was not a timely response to the employer’s request.

The FOP/OLC attorney contended that the employer failed to meet its burden of proof  to sustain the discipline. The grievant never fired his weapon, as expressed in the rule, and there was no doubt the grievant felt himself at risk when the dog owner threatened to “(mess) up his face”. As to the failure to timely provide the report, the grievant construed the Warden’s expression as a request, not a direct order, and he simply was too busy to write the report. When issued an order, the grievant promptly complied.

The arbitrator agreed with the FOP/OLC that the grievant had not violated the firearms policy. However, the arbitrator concluded that the grievant was aware that the employer wanted a report and was not too busy to provide one. Since the employer had not proved part of his case involving the forearm violation, the arbitrator concluded that the three day sus