LAYOFFS DOES NOT SUSPEND AGREEMENT

DEMOTION IS NOT APPROPRIATE PENALTY

LT. CAN PERFORM DUTIES AND NOT WORK OUT OF CLASS

CONTRACT REVISION ALLOWS CHANGE IN INSURANCE

TRANSFERRED EMPLOYEE HAS REASON TO ASSUME OLD RULES APPLY

CONTRACT DOESN’T LIMIT FREQUENCY OF USE

SEXUAL HARASSMENT NOT PROVEN; LIEUTENANT GETS HIS STRIPES BACK

OFFICER TERMINATED FOR DISHONESTY 

OFFICER NOT GUILTY OF EXCESSIVE FORCE; TIME RESTORED

DEPUTY TERMINATION RELATED TO ELECTION YEAR MISBEHAVIOR

ONE DAY SUSPENSION OVERTURNED

EMPLOYER CANNOT DISCONTINUE EXTRA DUTY ASSIGNMENTS

IT’S NOT THE TIME TO WIN LAY-OFF ARBITRATIONS

LAYOFFS ALLOW RESUBMITTING VACATION REQUESTS

FAILURE TO NOTIFY DISPATCHER RESULTS IN SUSPENSION

NOT PUBLISHING RULE RESULTS IN OVERTURNED SUSPENSION

PROJECTED DEFICIT WARRANTS LAY-OFFS

JUNIOR EMPLOYEE FAILS TO PROVE HE’S MORE QUALIFIED THAN SENIOR

EMPLOYEES ARE VICTIMS ON UNINTENDED CONSEQUENCES

ADDITIONAL JOB DUTIES ARE INCIDENTAL

CITY MUST PAY OVERTIME FOR TRAINING

FELONY CALL HANDLED O.K.-WARRANT SEARCH NOT

DISPATCHER ENTITLED TO ONLY 50% OF ACCUMULATED SICK LEAVE

CONTRACT CHANGE NOT ENOUGH TO WIN GRIEVANCE

PUNISHMENT EXCESSIVE, REDUCED TO WRITTEN WARNING

DEPUTIES ENTITLED TO WORK COURTHOUSE

EMPLOYER MUST BE UNIFORM AND CONSISTENT WITH DISCIPLINE

WHISTLE BLOWER GETS JOB BACK

REASSIGNMENT NOT DISCIPLINE

GRIEVANT NOT SERIOUSLY INSUBORDINATE

PAST PRACTICE WINS THE DAY

TERMINATION UPHELD FOR OFFICER’S MISBEHAVIOR

EVEN IF EMPLOYER REDUCES PREMIUM, HE CAN’T INCREASE DEDUCTIBLE

INVESTIGATION NOT COMPLETED IN TIME, GRIEVANCE SUSTAINED

DEPUTY NOT RECKLESS OR NEGLIGENT: ONE DAY SUSPENSION RETURNED

OFFICER RETURNED TO WORK: NO BACK PAY

TRAINING IS BARGAINING UNIT WORK

CITY CAN’T ERODE BARGAINING UNIT WITH TEMPORARY ASSIGNMENT

DESPITE LAST CHANCE AGREEMENT, GRIEVANT RETURNED TO WORK

PENALTY WAS EXCESSIVE; PUNITIVE

PROGRESSIVE DISCIPLINE REQUIRES REDUCTION FROM 30 DAYS TO 10

MOVEMENT WITHIN CLASSIFICATIONS DOESN’T ALTER LENGTH OF SERVICE FOR WAGE PLACEMENT

LAID OFF EMPLOYEE ENTITLED TO RETROACTIVE PAY

PROMOTIONAL PROBATIONARY GRIEVES; WINS

EMPLOYER NOT REQUIRED TO CONTINUE MISTAKE: NO PAST PRACTICE

HIGH SPEED PURSUIT; LEADS VIOLATION NOT ENOUGH FOR TERMINATION

DOCTOR’S EXCUSED ABSENCES DON’T COUNT AS “OCCASION”

LAYOFFS DOES NOT SUSPEND AGREEMENT

After the employer laid off ten Deputies, the employer changed the schedule of the Patrol Bureau Commander to a regular supervisory position. In addition, the contract allows Captains to flex their hours for very specific purposes. It does not, however, allow the use of flex time to avoid payment of overtime. The Captain regularly worked non- traditional hours, which did allow the grievants the opportunity to earn overtime. Also, the assignment of the Captain to a regular supervisory position meant a series of downward bumps, depriving the grievants of their contractually approved assignments.

Two members of the bargaining unit filed a class action grievance, though other members of the unit declined to participate.

When the Captain was reassigned, he signed a statement that he mutually agreed to flex his hours to address the fiscal emergency the County was facing. This was cited by the arbitrator as evidence of the employer’s intent to flex the Captains hours. Further, as argued by the attorney for the FOP/OLC, the agreement provided the “the employer shall designate the start of the work period or week, but shall not change the starting time of the period or week to avoid the payment of overtime.”

The employer argued that he had the right to assign personnel, and the fiscal emergency created a need to reassign the Captain to other duties with the department. The employer denied they were flexing the Captain’s schedule and that his schedule was permanent.

The arbitrator agreed, in part, in the Argument put forth by the FOP/OLC. The employer was definitely flexing the Captain’s schedule to avoid the payment of overtime. In addition, the employer had changed the starting time of the Captain’s shift to avoid the payment of overtime. Both were violation of the contract.

As a remedy, both grievants were placed on the shifts they had bid for and were initially assigned. The arbitrator ordered them to be fully compensated for their share of overtime hours claimed from the time of the contract violation.

(Issued August 23, 2010. Employer-Richland County Sheriff)

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OFFICER REINSTATED WITH FULL BACK PAY

The grievant and his partner were working plain-clothes at a near-by restaurant and watching a car when the front seat passenger of the car pointed a gun at the officers and laugh. The two officers immediately got out of the car, showed their badges and drew their sidearms. They ordered everybody out of the car and ordered the front seat passenger to drop his weapon. Instead, the passenger put the loaded weapon in the glove box. The grievant’s partner then grabbed the passenger and dragged him out of the car while the grievant provided cover. Back-up started showing up and assisted the grievant and his partner in getting everybody out of the car. The front seat passenger, who had been put on the ground to be handcuffed, went limp and refused to get to his feet as ordered. The grievant attempted to deliver a knee strike to the passenger in order to get him to comply. The grievant and his partner than “helped” the back seat passenger out of the car. When the officers returned to the station they all (the grievant, his partner and back-up) filled out reports, including Action-Response Reports.

While on the scene, the grievant is alleged to have said the he struck the front seat passenger in the head with his knee. In his written report, he stated he didn’t know if his knee had made contact. In an investigative interview, the grievant used another verb to describe his action. There was also a video tape from the restaurant which recorded the action. The employer found inconsistencies in the grievant’s statements and ordered him not to discuss anything with anyone. The results of the investigation ended in a pre-termination conference which the grievant did not attend. He was terminated for 1)excessive force; 2)removing the back seat passenger without documenting it;3)discussing the incident with his partner when ordered not to and 4)dishonesty in filling out his reports.

The attorney for the FOP/OLC addressed the employer’s case item by item. The employer conducted a biased investigation by not consulting its own training officer on the appropriate use of force. All witnesses to the incident were consistent in describing the grievant’s behavior, including the investigating Sgt.’s wife, who later changed her story in later reports. The employer brought up the grievant’s discipline record, which was compiled when the department was non-union and discipline was not contested (and which the arbitrator found suspect). The grievant and his partner were blood relatives, which made a ban on all conversations impossible. Further, the employer couldn’t proof the two ever discussed the case (the attorney insisted they hadn’t).

The employer relied on civilians to explain why the grievant should remain terminated.

The arbitrator found for the grievant. He was reinstated and awarded all back pay, including the IRS penalty the grievant had to pay for early withdrawal of retirement funds.

(Issued August 11, 2010. Employer-Akron University Police Department)

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EMPLOYER HAS RIGHT TO DENY PERSONAL DAY

Contract negotiations in 2009 led to an increase in personal days allowed each year. The entire section read as follows:

All employees covered by this agreement shall be entitled to four (4) personal days-off with pay in each contract year. Bargaining unit members may request usage of the fifth (5^th) personal day annually beginning January 1, 2010 at any time; however, the Employer may decline the request if the request generates mandatory overtime (or revoke previously approved requests).

The grievant put in a request on December 2, 2009, for personal day leave on January 1 and 2 of 2010. His request was disapproved with no explanation. Soon thereafter he filed a grievance with the following statement:

Denied Personal Days 1&2 on January 1^st and January 2^nd,2010.  Administration denied request due to mandated work load requirement.  Contract states that the usage of the fifth (5^th) Personal Day may be declined if the request generates mandatory overtime. Does not say that Personal Days 1,2,3,or 4 may be declined because of this.

The attorney for the FOP/OLC invoked the principle that the collective bargaining agreement did not mention the overtime ban for days 1 through 4 of personal day requests. The parties must have intended to do that or the overtime prohibition would have been included in the contract language.

The employer argued that the prohibition on personal day usage if it required overtime or created a manpower shortage long predated the change in the contract from 4 days to 5 days of personal time-off. The employer presented a list of 11 occasions, before and after the addition of the fifth personal day. On each of those requests the leave was requested for days 1 through 4 and denied because it created a shortage or required overtime. On none of those occasions was a grievance filed. The lack of a grievance indicated that all partied understood that personal leave requests could be denied if mandatory overtime was required to cover the request.

The arbitrator ruled that the FOP/OLC had not met its burden of proving that the Sheriff was prohibited from denying a personal leave request for the first four days if it involved an overtime cost, or that the employer had recognized a binding past practice.

(This case illustrates the importance of being diligent in filing grievances as soon as a violation occurs as the Arbitrator refused to find a past practice even though there had been one rule for many years because the Sheriff changed the practice 6 months before the grievance was filed and no one grieved )

(Issued August 12, 2010. Employer-Erie County Sheriff)

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ONLY LIMITATION IS TOTAL NUMBER OF HOURS

When the parties negotiated a new contract they settled on the following language:

An employee who has accrued more than a thousand (1000) hours or more of sick leave may sell the excess time back to the City.  In such circumstances, the employee may cash in three (3) hours of earned sick leave for one (1) hour of pay up to a maximum of forty (40) hours per year. Payment for sick leave cashed in under this section shall be made in the final pay period of the calendar year. Earned sick leave which is not used or cashed in before the end of the year shall be added to the employee’s balance of accumulated sick leave.

Three employees tried to cash in 120 hours of sick leave for the final pay of the year (120 hours at a three to one ratio for 40 hours of pay). Each had accrued in excess of 1000 hours, but all three had used sick leave in the calendar year for which they applied for a cash-in. The City denied their requests.

The attorney for the FOP/OLC argued that the only requirement for the cash-in eligibility was the accumulation of 1000 hours. There was nothing in the language of the cash-in section which limited the ability to cash-in sick leave to that which was accrued but not used during the calendar year. The City argued that what the language meant was accrued sick leave FROM THAT YEAR. Otherwise, the City was not getting what they thought they were getting.

Testimony from the staff representative for the OLC and a member of the bargaining committee indicated that at the time of negotiations both asked the Mayor whether an employee who used sick leave during the year would be eligible for the cash-in. Both were assured at the time that all that was required was the accumulation of 1000 hours. The testimony of the staff representative and the bargaining committee member went unrefuted.

The arbitrator came down on the side of clear and unambiguous language. He said that it was understandable what the City’s goals were, but those goals were not communicated to the FOP/OLC. To the contrary, the FOP/OLC was assured that they were getting an unhampered option. The City could not now claim that the City did not like what they were getting.

The grievance was sustained and the requests for sick leave cash-in were ordered to be honored.

(Issued August 6, 2010. Employer-City of St. Bernard)

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OFFICER TERMINATED FOR GIVING FALSE STATEMENTS

The arbitrator’s report is extensive. A new Township Trustee became interested in allegations that Township equipment was not properly accounted for and that certain firearms had been given away or sold. His inquiry led to the chief resigning with a settlement contingent on his not being convicted. The instant grievance centers on a subsequent inventory of the department’s firearms by the ATF and the conflicting statements made by the grievant, acting chief, the former chief and a part-time officer.

According to the grievant, two days before the inventory was to be taken, he was given permission by the acting chief to go to the former chief’s house and bring back to the station a weapon which the former chief had forgot to hand in when he severed employment with the department. He was also given permission to collect 6 weapons which were in the possession of a part-time officer, a sales manager at a local car dealership. The acting chief, a long time friend of the grievant, denied ever giving permission to the grievant. The issue of missing firearms and the former chief were a controversial subject. 

The grievant told this version on events in subsequent investigations and at the arbitration hearing. The Trustees had doubts about the validity of the statements at the time of termination and the grievant was unable to convince the arbitrator otherwise. The grievant’s version differed in significant and subtle ways from that of the acting chief, the part-time officer and even the former chief. The arbitrator believed the grievant had picked up the weapons without receiving permission, even disobeying an order to not make the pick-up, and misrepresented that fact in an official inquiry. The arbitrator made a point of remarking that the grievant had 18 years with the department, but that the preponderance of the evidence showed the department had just cause to terminate the grievant.

(Issued January 25, 2010. Employer-Perkins Township)

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EMPLOYER CANNOT VIOLATE EXPIRED AGREEMENT

The Sheriff had historically entered into agreements with some villages and townships within the county to provide additional service to those villages and townships which reimbursed the Sheriff for the costs. The employees were not considered to be members of the bargaining unit but the Sheriff agreed that they could be regulated by the bargaining unit. When such arrangements were made, the Sheriff and the FOP/OLC had entered into agreements which spelled out how the employees would be compensated and how their seniority would accumulate.

One such understanding, contained in a “Letter of Understanding”, provided that the full-time employees assigned to the villages and townships would be paid the same hourly rate as deputies under the contract but that if the policing agreement with the villages and townships were terminated the Sheriff did not have to absorb the employees into the deputies ranks and the employees could not displace a regular deputy. If the employees were hired as regular deputies their seniority would begin on the day they become regular deputies.

The Letter of Understanding was termed “non-precedential” and was designed to run concurrently with the policing agreements signed with the political subdivisions. The policing agreement ended on January 1, 2009. In June of that year a township agreed to reimburse the Sheriff for a part-time employee, but the Sheriff did not consult with the FOP/OLC about the conditions of this hire. The local Associate filed a grievance for the entire bargaining unit alleging a violation of the Letter of Understanding.

The employer raised the arguments that the Associate did not have standing to file the grievance, and the grievance was not based on the contract and was therefore not arbitrable. The arbitrator ruled on both those questions in favor of the FOP/OLC, but on the substantive issue, the arbitrator ruled that the Letter of Understanding had expired 5 months prior to the Sheriff hiring the part-time employee and therefore was inoperable. The arbitrator could not comment on the question of whether the Sheriff could hire seasonal or part-time employees because the issue was not raised in the grievance. The grievance stated that the Sheriff had violated the Letter of Understanding, which no longer had force and effect.

(Issued June 24, 2010. Employer-Tuscarawas County Sheriff)

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FAILURE TO REPORT INCIDENT IS REDUCED TO REPRIMAND

At some time in 2006, five employees were together at shift change, some coming to work, some leaving. The grievant said something to one of the oncoming officers about the officer’s wife. The offended officers drew his service weapon and pointed it at the grievant.

Two and a half years later the employer became aware of the incident and interviewed the four officers and one sergeant who were in the room at the time. As a result, the officer who had pointed his weapon received a three day suspension.  The other officers and the sergeant were found guilty of failing to report the incident and  offered a one day deduction of vacation leave and removal of the record of discipline after 15 months in exchange for an agreement not to file a grievance. All others took the deal, but the grievant insisted on having the matter heard by an arbitrator.

All statements gathered during the investigation indicated that the officer who pointed his weapon did not have his finger on the trigger, and none of the employees involved felt threatened. All of the officers said the sergeant saw the weapon drawn and shook his head at the behavior, but the sergeant, in his interview, said he did not see the drawn weapon. The grievant also stated that the sergeant saw the whole thing.

The attorney for the FOP/OLC argued that with the sergeant in the room and a witness to the event, the grievant was relieved of responsibility for reporting the incident. The sergeant was the grievant’s sergeant, and reporting the incident to a higher-up would have altered the chain of command. As the sergeant had seen what had transpired, the grievant felt he did not need to report the matter to his sergeant. The attorney conceded that pointing a weapon is a serious matter, but to charge the grievant with failure to report the incident when the person he should have reported it to had seen it all was to misplace the responsibility. At most, argued the attorney, the grievant should receive a reprimand.

The arbitrator agreed with the FOP/OLC.  The grievant would have breached protocol by reporting the incident outside the chain of command. The grievant was convinced his sergeant had seen everything and would duly report it. The grievant could have checked with his sergeant to see if he had reported the incident, so a reprimand might be the appropriate penalty, but any lost time was excessive. The arbitrator ordered the one day suspension be reduced to a reprimand

(Issued July 14, 2010. Employer-City of Harrison)

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SERGEANT PERFORMING LIEUTENANT’S WORK GETS LIEUTENANT’S PAY

When a Lieutenant in the Court Services Division retired, the grievant, a sergeant, agreed to assume the retired Lieutenant’s duties without any pay increase because the department was in a fiscal emergency. He was told that the vacancy would be filled when the fiscal emergency subsided and additional funds were available. More than a year later the grievant became aware that a lieutenant’s position was posted in another division. At that point he reasoned that the fiscal crisis was over and the lieutenant’s position he was filling should be posted as well. He subsequently filed a grievance.

The employer argued that the grievance was filed untimely. But the arbitrator ruled that the agreement to work at the higher level without compensation was altered when the grievant became aware of changed circumstances in the workplace. He filed the grievance within the time limits once the circumstances were discovered. In this section of the award, the arbitrator mentioned that any remedy would be limited to the time after which the grievance was filed.

Evidence at the hearing was overwhelming that the Sergeant was fulfilling the duties of the retired Lieutenant. The employer argued that not a the duties were equal, but the Attorney for the FOP/OLC pointed out that those duties which were not being filled by the grievant were those duties which only a lieutenant could perform. When the grievant took the position, the supervisor of the division stated that the grievant was  going to fill the duties of the retired Lieutenant. It was further observed that the grievant was performing his former duties as well as his newly acquired ones. The Lieutenant’s position was never abolished so it was a position which could be filled. Since the grievant was filing it the arbitrator ruled that he should be paid for it.

In granting the grievance, the arbitrator, consistent with his ruling on the arbitrability question, limited the back pay to the time the grievance was filed.

(Issued July 15, 2010. Employer-Hamilton County Sheriff)

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DEMOTION IS NOT APPROPRIATE PENALTY

At the end of his shift, a Sergeant was passing on information to the OIC of the on-coming shift.  Also present in the room were two other male officers who were finishing up training from the previous shift. There were no other people in the room. The Sergeant informed the OIC about a call he had handled earlier regarding a student who believed her roommate had sprayed perfume on her chicken.  The training officer interjected himself into the conversation by mimicking someone gagging on the phone asking how a person would sound while choking on chicken. The Sergeant responded that it would sound like the junior officer’s fiancé “gagging on it”. The junior officer later complained about the Sergeant.

The University conducted an investigation, and concluded the Sergeant had violated the sexual harassment policy. A year earlier the Sergeant had received counseling for conduct unbecoming involving a case of sexual suggestion; however discipline was held in abeyance, pending any further indiscretions. The employer considered termination for the instant offense, but decided instead to demote the Sergeant to Police Officer 1, which was two steps below the rank of Sergeant.

The grievant did not dispute what he said but denied that it was sexually related. Further, the grievant was never told the comment was not welcome. While the fact that everyone in the room were all of the same gender did not relieve the grievant of proper decorum, he at least should have been told that his comment was not welcome. The FOP/OLC attorney’s main argument, however, was that a demotion was not an appropriate penalty for this rule violation. A demotion would follow the grievant throughout his career, with the financial penalty amount accumulating year after year even into his retirement.

The arbitrator agreed with the penalty argument, but not with the seriousness of the offense. The demotion was set aside, but the arbitrator imposed a thirty day suspension on the grievant for his locker room comment.

(Issued June 25, 2010. Employer-Wright State University)

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CONCESSIONS BY ONE UNION DOES NOT OBLIGATE FOP

The City’s Police Department is represented by two different unions, with the FOP/OLC representing the Sergeants and above. The wages of the Sergeants and above were tied to the wages of the highest paid patrolman, with the FOP/OLC contract only mentioning a differential between the ranks.  Not unlike many municipalities of late, the employer found itself with a shortage of funds and looked to all City employees for concessions. All of the other unions agreed to furlough days, but the City did not pursue full negotiations with the FOP/OLC because they thought if the patrolmen’s wages went down, the Sergeants and above wages would have to go down as well.

When the pay reduction went into affect, the FOP/OLC filed a grievance. Two days later the FOP/OLC filed an unfair labor practice charge, alleging direct dealing and interference with Union administration. The ULP charge was dismissed, but the FOP/OLC pursued the grievance.

At the arbitration hearing the attorney for the FOP/OLC argued that the contract imposed an obligation to bargain mid-contract changes and the entire contract was premised on an 80 hour work period and that had always been the case. The base salary of the patrolmen had not changed and therefore the base salary of the supervisors should not be changed. Nowhere in the agreement is there reference to a possible reduction in wages, and while the agreement does make reference to possible adjustments during the life of the agreement, that implies changes specifically mentioned concerning Sunday pay and shift differential.

The City argued that they were obligated to pay the differential to the rate they negotiated with the patrolman. They had a new deal with the other union, and the FOP/OLC contract had to be adjusted accordingly. Further, they argued, the ULP charge was dismissed with prejudice. Allowing the grievance would encourage forum shopping by the FOP/OLC.

The arbitrator ruled that a bargain is struck at a specific point in time. At the time the FOP/OLC negotiated their contract, the patrolman’s wages were set at a specific amount. The City must have acknowledged that or they wouldn’t have tried to bargain mid-term with the FOP/OLC initially. They would have considered the FOP/OLC contract an extension of the patrolmen’s contract. The fact that SERB had dismissed the ULP charge had no bearing on the arbitrator’s role of interpreting contract language and was not considered. As to the City’s argument that the other City employees would resent the fact that the FOP/OLC were not making a like sacrifice to remedy the City’s  financial situation, the arbitrator understood but it was not his role to solve all the City’s problems.

All FOP/OLC members were awarded back pay for the furlough days they were required to take.

(Issued June 28, 2010. Employer-City of Canton)

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LT. CAN PERFORM DUTIES AND NOT WORK OUT OF CLASS

The agreement contains the following provision:

Any member of the bargaining unit who is assigned to duties of a position with a higher pay range than the employee’s own shall be eligible for out of classification pay. This pay adjustment will be based on the compensation for the higher pay classification. Those bargaining unit members who are assigned or otherwise placed in a supervisory position shall be paid at the appropriate supervisor level of compensation. Said pay adjustment shall trigger after the first hour of assignment in the higher position, at which time the pay adjustment reverts to the first minute of assignment.

The grievant, a Lieutenant with the department, worked in the jail. The Shift Commander, a Captain, was assigned to the Administrative Captain’s position. He served as both the Shift Commander and Administrative Captain for several months, when the grievant assumed the duties of Shift Commander. The grievant served as Shift Commander for 3 ½ months at the Lieutenant’s rate of pay. Believing he was entitled to a Captain’s rate of pay for this period (16% above the Lieutenant’s rate of pay), he filed a grievance claiming the higher rate.

The attorney for the FOP/OLC argued that Shift Commanders on first and third shift were Captains, and prior to the grievant’s experience, the Shift Commander on second shift was a Captain as well. The FOP/OLC pointed to the policy manual, which states “when the Captain/Shift Commander is on scheduled time off, the Lieutenant must follow the given instructions of the Captain/Shift Commander for his shift operations. Therefore, the FOP/OLC argued, the position of Shift Lieutenant is distinguishable from that of Shift Commander, which is intended to be filled by a Captain.

The arbitrator found no contractual provision which required the assignment of a specific rank of officer to perform the duties of Shift Commander, which would otherwise come under the general management rights section on assignment of personnel. However, a Memorandum of Understanding dealing with supervisory compliment stated “…the supervisory compliment in the Corrections Division…will be…One Captain OR Lieutenant seven days a week per each of three shifts” (emphasis added)  In light of the availability of Lieutenant to the contractually perform the Shift Commander’s responsibilities, the grievance was denied.

(Issued May 26, 2010. Employer-Summit County Sheriff)

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GRIEVANT NOT AWARDED OVERTIME

The employer is a park district, which provides security for an annual festival held on the employer’s grounds. The grievant worked his regular shift and then an additional two hours at the end of his shift to cover the festival.  The next day the grievant chose to use compensatory time and did not work. He filled out his time sheet claiming 2 hours overtime for his work during the festival. When he got his paycheck the overtime pay was not included. When he inquired about the omission, he was told that since he took compensatory time off during the pay period he did not qualify for overtime pay. He filed a grievance over the ineligibility of compensatory time in the calculation of overtime and a denial of call-in pay for the two hours.

The contract reads:

Overtime shall be paid…for all hours worked over forty hours per work week.

For the purposes of this article, an employee is considered on active pay status when the employee is eligible to receive pay, and includes holiday, vacation leave, sick leave, injury leave, and any approved paid leave of absence.

Call-in occurs when a supervisor specifically requests an employee to return to work after completion of his regular schedule but before he is scheduled to return to work.

The attorney for the FOP/OLC argued that when the grievant was taking compensatory time he was in pay status, which is when an employee is eligible to receive pay including a approved paid leave of absence. There is no question the grievant’s leave was approved, nor any question that he was paid for it. But the arbitrator saw it differently.

The arbitrator reasoned that because compensatory time was not mentioned specifically in the “active pay” definition, it must not be a qualifier for overtime hours. The arbitrator relied on “all hours worked” as necessary for overtime accrual, then stated that vacation leave was also a qualifier. He also did not see the merits of the call-in claim, stating that the grievant never left the worksite and therefore couldn’t have been called in.

If the grievant had utilized vacation leave instead of compensatory time, he would have been paid the two hours of overtime. Grievance denied.

(Issued May 15, 2010. Employer-Five Rivers MetroParks)

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TERMINATION NULLIFIED; REINSTATEMENT WITH FULL BACK PAY

On April 8 through 10 the grievant was attending training with employees from another department within the University. At the conclusion of the session on the second day, a female trainee placed her foot on a chair and bent over to tie her shoe. The grievant, a sergeant, allegedly stared at the female’s buttocks and made a remark to the effect “If I only knew you better”. The female turned and said “I would probably drop kick you.” The grievant replied, “It wouldn’t be the first time, I already have two ex-wives.”

The remarks were not immediately reported to anyone. A week or so later, the female’s co-worker who overheard the comments contacted their supervisor, who contacted the grievant’s Chief. An investigation was launched, including interviewing the female and her witness.  Eventually a pre-disciplinary hearing was held in May. A month after the hearing the Human Resource officer concluded “I am confident that a comment containing sexual innuendo was made…” The Human Resource officer determined the appropriate penalty was a demotion to Police Officer; attendance at an employee assistance program; and a last chance agreement. She sent a letter and presented those options to the grievant to be signed, which he refused because he believed that signing such agreement would preclude him from grieving the demotion. A second letter was sent on June 29 to the grievant which stated;

This morning you informed me that you “cannot sign” the required paperwork. This letter is to inform you that your employment with the University is terminated effective June 27, 2009.

When the grievant filed his grievance, the grievant claimed that the discipline was without just cause and that the termination was beyond the 60 days set forth in the labor agreement which states that “In all cases disciplinary action must be instituted within sixty (60) days of a complaint of the alleged misconduct.”

The attorney for the FOP/OLC argued that the imposition of discipline was untimely even by the most generous of calculation. Further, the complainant and her witness were interviewed together in violation of fundamental investigative techniques. And finally, the discipline was excessive, as conceded by the Human Resource officer when she determined that a demotion was the appropriate level of discipline but changed her mind when the grievant balked at signing a last chance agreement.

The arbitrator agreed with the FOP/OLC on all three points. He concluded that the discipline was untimely, but went on to write that in addition to the un-timeliness of the discipline, the employer had other flaws in the case which the FOP/OLC had pointed out. The grievant was ordered reinstated with back pay.

(Issued May 19, 2010. Employer-Wright State University)

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CONTRACT REVISION ALLOWS CHANGE IN INSURANCE

The parties had a long history of collective bargaining. In 2002 the employer implemented a health and prescription drug plan which increased the employees’ prescription costs as well as costs in other areas. The FOP/OLC filed a grievance and an Unfair Labor Practice charge which alleged the employer made a unilateral change to a mandatory subject of bargaining. The contract at that time stated that the employer would maintain benefits “as currently existed”. As a settlement of the grievance and the ULP, the parties entered into an MOU which reimbursed the employees for any out of pocket expenses they had incurred and agreed to negotiate the health insurance in 2003.

The 2003 contract dropped the requirement that the employer must provide benefits “as currently existed”. Instead, the contract set forth specific deductible caps and contribution amounts. The zipper clause of the contract limited the agreement to what it contained and excluded any side agreements that were not dated to coincide with the contract.

The 2006 contract did not alter the insurance section. But in 2007 the employer was served notice by their insurance carrier that premiums would go up by 27% for 2008 and by an additional 11.9% in 2009. The employer, in an effort to keep down costs, subscribed to a different plan in 2009, which increased out of pocket maximums, co-insurance, emergency care services and prescription costs. The employer also decided to discontinue the reimbursements under the 2002 MOU. The FOP/OLC demanded to negotiate the insurance changes and when denied, filed a ULP with the State Employment Relations Board. It also filed a class action grievance which was the subject of this arbitration.

The attorney for the FOP/OLC argued that when the employer proposed to delete the “as currently existed” language during the 2003 negotiations, the FOP/OLC was assured by the employer’s representative that it was not the intent to change insurance coverage. The contract did not change the insurance plan in the 2006 negotiations, nor did the employer make any changes. Since the contract specifically listed the specific plans by number, the employer was obligated to maintain the benefit levels of those two plans for the duration of the contract. Further, the 2002 MOU had been treated as if it were in effect through 2 successive contracts. It had to be considered still in effect since it had no expiration date and the Union had every reason to believe it was still being honored.

The arbitrator concluded that the changes in the contract, initiated in 2003 and rolled over in 2006, allowed the employer to make changes in insurance coverage without the consent of the FOP/OLC. The deletion of “as currently existed” language would allow the employer to change benefits when needs arose. Further, the Zipper clause made the MOU of 2002 no longer controlling and the employer no longer was obliged to abide by its terms. The grievance was denied in its entirety.

(Issued May 5, 2010. Employer-Five Rivers Metro Parks)

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NO MATTER WHAT YOU CALL IT, IT’S A PREMIUM INCREASE

The contract called for a limitation on increases in the insurance co-pay in the event the employer wanted to increase the co-pay by an amount that would be greater then the pay increase in any given year. The so-called cap had been in the agreement in its present form since 2003. The employer hated the cap, but had been unsuccessful in having it removed. The cap was the subject of 3 previous arbitrations, two decided for the FOP/OLC and one which was ruled inarbitrable. The agreement read:

The co-payment paid by bargaining unit employees for any specific insurance plan provided for in (the agreement) shall not increase from year to year by more than the percentage wage increase received by the employee’s classification group.

The members of the FOP/OLC were the only county employees to have such a cap on their insurance premium. The cap proved fortuitous when finances of the County called for, and the agreement allowed for, no pay increase for 2010. In January of this year the County Commissioners told all county employees that they had to fill out a form indicating whether they wanted to have their spouses covered by the county plan and to pay a $35 per pay “Spousal Surcharge”. Failure to fill out the form would allow the employer to pay the premium for single coverage only. All other employees complied with the County’s request, but the members of the FOP/OLC filed a grievance contending that the “Spousal Surcharge” was nothing more than a co-pay increase.

The attorney for the FOP/OLC argued that the cap contained in the agreement (which was awarded by a fact-finder) was designed to tie insurance costs to wages so as to avoid insurance costs eating up wage increases. With the agreement calling for no wage increase in 2010, the bargain called for no premium increase for employees. No matter what you called it, the “Spousal Surcharge” meant less money in the paycheck, which was what the cap was designed to avoid.

The employer conceded that if the “Surcharge” be deemed a co-pay, it would be prohibited.

The arbitrator opined that whereas the parties had been loose in the use of words to describe that part of the premium paid by employees, he reasoned that what they meant was that what the employees had to pay could not go up by a greater percentage than any pay increase. Since the employees received no pay increase in 2010, their co-pay could not increase either. He ordered all employees be reimbursed for any deductions made to pay checks and that such deductions cease.

(Issued May 3, 2010. Employer-Hamilton County Sheriff)

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SUPERVISOR CANNOT PERFORM BARGAINING UNIT WORK

A dispute arose between family members which escalated to the point where one of the participants died. Numerous employees of the Sheriff’s office responded, including the Crime Lab Supervisor. The Supervisor gathered evidence at the scene. When two suspects were arrested, he followed them to the County Jail to gather additional evidence. He also interviewed the suspects. He then returned to the crime scene and secured the area. The next day the Supervisor attended the autopsy and went back to the scene to take additional photographs. He was paid overtime for all the work he performed.

The grievant, who was off duty at the time, read about the activity in the newspaper, including the investigation of the Supervisor. He concluded that because neither he nor any other detective had been called out to investigate the incident, the Crime Lab Supervisor, a non-bargaining unit employee, had taken an overtime opportunity away from him, a bargaining unit employee. He also discovered that the Supervisor had been paid overtime for the evening’s work.

Due to budget cuts, the Detective Bureau had been disbanded, but for major crimes, former members of the Detective Bureau were called out, on an overtime basis, to perform the work. The relevant portions of the contract read:

The employer shall not attempt to interfere with, restrain, or coerce the bargaining unit or the rights of bargaining unit employees.

All overtime opportunities that are normally performed by bargaining unit employees shall be offered to said employees.  Overtime opportunities shall be distributed as evenly as possible within each division except in emergency circumstances.  All overtime opportunities shall be offered to bargaining unit employees before being offered to exempt employees.

The employer had settled a similar grievance several years prior to the instant grievance by paying the grievant overtime which he would have earned. The attorney for the FOP/OLC argued that the work should have been performed by a bargaining unit member.

The arbitrator followed the FOP/OLC’s reasoning. The agreement put a limitation on the employer’s ability have non-bargaining unit employees perform bargaining unit work. The grievant was awarded 8 hours overtime and the employer was ordered to cease and desist from any further infractions.

(Issued May 12, 2010. Employer-Richland County Sheriff)

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TRANSFERRED EMPLOYEE HAS REASON TO ASSUME OLD RULES APPLY

Due to an on-the-job injury, the grievant transferred from his job in corrections to court services. To be approved for leave, a corrections officer had to fill out a request form twenty-four hours in advance and submit it to his supervisor. If the request were not returned “denied”, the request was approved. The grievant, who had been in his new assignment for two weeks, filed out a leave form (twice as it turned out; the first time the requested date was incorrect) and did not receive a denial. When he took the requested day off, he was found AWOL and given a one day suspension.

It was well established that the department had no written policy on leave approval and it was well established that leave was regularly approved by not being denied. It was not even established that there was a different rule for court services than for corrections. The attorney for the FOP/OLC noted that the request had been processed as evidenced by the employers handwriting, and had never been denied. If the grievant was wrong to assume that the procedure was different, it was a simple mistake. He had, after all, been in the new assignment for a period of two weeks.

The arbitrator determined that due to the grievants short time with the assignment and the employer’s failure to meet with the grievant prior to the assignment and go over any change in protocol, the grievant could not be expected know different rules and procedures (if any). The grievant, however, was not totally blameless. He could have reviewed the duty roster to see if he were scheduled that day and followed up on his request, since it was the first one in the new assignment. The arbitrator returned the one day suspension and ordered the grievant’s personnel file be amended to reflect the change, but also ordered the grievant not be paid the day he took off.

(Issued March 30, 2010. Employer-Brown County Sheriff)

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CHANGED CONDITIONS GIVE RISE TO DIFFERENT INTERPRETATION

The grievants were part-time employees of the department. Although part-time, they were covered by a collective bargaining agreement in a unit of part-time only employees. They had been part-time since 2006, and had made it known that they were interested in full-time positions.

It had been the practice of the department to hire part-time employees to full-time positions when they came open. In the contract in effect until July, 2005, the relevant section read

Should the City…choose to hire a full-time officer from within the Police Department, it shall be made available to part-time officers first.

In July of 2005, the contract was changed to read

Should the City… choose to hire a full-time officer, part-time officers ON THE ELIGIBILITY LIST will be given first consideration (emphasis added)

In July of 2008 the Civil Service Commission of the City revised their rules to include a Veterans Preference to all civil service scores on civil service tests. The Veterans Preference amounted to a 20% credit to the total test score. At the same time, a credit of 5% was given to test scores to all part-time employees of the City who took the test.

A civil service exam was given using the respective credits and the grievants were ranked 28^th and 52^nd on the tests. This was in contrast to the exam which was administered in 2006 when one of the grievants was ranked 6^th. The new credits meant the grievants were not included in the top ten which were forwarded to the employer for consideration.  As a result of the ranking, they were not interviewed.

The grievants stated in their grievance that they should have been given consideration for the full-time positions. But the arbitrator ruled that the employer was under no obligation to consider them if they were not on the eligibility list, and they were not on the eligibility list because of the Veterans Preference. The contract change allowed the employer to change the practice.

(Issued March 29, 2010. Employer-City of Mt Healthy)

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CONTRACT DOESN’T LIMIT FREQUENCY OF USE

Prior to the instant dispute, a deputy sheriff who had resigned from the department had sought to be reinstated. The Sheriff was eager to have the employee back, but the contract at the time contained no provision to allow the former employee to come back to his former position at the same rate of pay and seniority. Therefore, the FOP/OLC proposed, and the employer accepted, a new section which stated:

A bargaining unit member with ten or more years of service within (the department) shall have the right to be reinstated after separation for not more than twelve months from employment either after resignation or after an approved unpaid leave of absence.  Any such member shall request reinstatement in writing to the Sheriff and the employee shall be returned to their (sic) previously held classification with the same rate of pay and credit for continued seniority.

A year and a half after the contract change, another employee resigned his position and made a run for the Sheriff’s office. After being declared ineligible to be elected, the employee had his attorney send a letter requesting reinstatement. He was reinstated pursuant to the contract and placed on paid administrative leave pending the outcome of an investigation which had begun when he was previously employed. Soon thereafter, the employee again resigned and remained in that status for another year.

Before the year was out the employee again sent a letter to the sheriff requesting reinstatement. This time the sheriff denied his request stating that he had already been reinstated once. The employee filed a grievance and asked for reinstatement.

The employer argued that their interpretation of the contract section was the only sensible one. If it were read any other way, an employee could quit and ask for reinstatement a year later for ever, accumulating seniority and never working.  Clearly such a reading would be absurd.

The attorney for the FOP/OLC countered that absurd or not, the contract placed no limitation on the number of times the section of the contract could be invoked and furthermore, the employer was aware of that potential. The employer’s own notes of the negotiations implied repeated use was a possibility and nevertheless the employer agreed to it.

The arbitrator had to agree with the FOP/OLC. While the arbitrator would not comment on the wisdom of such a section, he stated that the contract put no limits on reinstatement rights and therefore there were none. He did not, however, award back pay, because there was no evidence the grievant would have put himself in a pay status.

(Issued March 26, 2010. Employer- Mahoning County Sheriff)

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LAY-OFFS UPHELD

On a subject which has shown an alarming consistency in outcomes, a class action grievance was filed on behalf of 9 deputies and 4 dispatchers who were laid off due to funding cuts.

The Sheriff’s budget for the preceding year was $3,317,442. The Commissioners cut the Sheriff’s budget to $2,200,000. When the Commissioner’s made their appropriations, they reduced the Sheriff’s budget disproportionately. When the Sheriff was forced to make the cuts to function within his budget, the department was forced to lay-off a greater percentage of its employees than other departments in the county. The Sheriff’s employees felt they were making a bigger sacrifice than other county employees.

For the arbitrator, the issue was a simple one. The Sheriff clearly had a lack of funds, one of the requirements for a lay-off. The budget amount was not contestable. Determining a county budget was the prerogative of the commissioners. The Sheriff could spend only the amount allotted to him and because that amount was significantly less than in previous years, he had no choice but to lay-off employees.

The grievance was denied.

(Issued December 15, 2009. Employer-Belmont County Sheriff)

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DEPUTY TERMINATED FOR SOLICITING SEX ON DUTY

The grievant was hired in 2007. The grievant’s supervisor, although not serving in that capacity at the time, had not hidden his opinion that the grievant should not have been hired in the first place. The grievant became the subject an investigation when the supervisor was placed in charge of the grievant’s division. Prompted by a litany of allegations, rumors and innuendoes, none of the allegations were initiated by a complainant; they came from unaffected third parties.

The most serious of these allegations occurred when the grievant stopped at a local gas station and (depending on who’s recounting the events) questioned the store manager about the theft of some lottery tickets. The grievant asked the manager to meet him after the manager got off work at the manager’s home, so the manager would feel more comfortable answering questions. The manager lived with his parents. According to the manager, the grievant asked whether the manager’s co-workers were gay, and suggested that he (the grievant) was gay too. He then said, according to the manager, “What would you think if I asked you to give me oral sex?” The manager replied he had a boy friend and the grievant asked the manager not to say anything because he could get in trouble or “possibly lose his job.”

After the grievant had left the manager’s home, the manager called his boss and related the story, and the following morning the manager told a co-worker the same story. No one filed a complaint and the events faded into the past, until the grievant’s supervisor heard rumors about the encounter and asked the store manager about what happened and asked the manager’s boss and co-worker to verify the manager’s story.

The grievant had his own version of that night. The theft of the lottery tickets had happened a week before and the grievant didn’t even know about it. He had stopped at the gas station because he had a tip about drug activity around the gas station. He had suspicions about the manager driving a fancy car on a gas station manager’s salary, and wanted to talk to the manager away from the work place so they would not be observed. He contended he made no solicitation of the manager and such a solicitation would have made no sense with the manager’s parents at home and all the outdoor lights on.

The employer came to the hearing with other charges against the grievant, including sexual harassment and racial insensitivity(the grievant was African American) as well as failing to disclose a criminal conviction on his job application. The attorney for the FOP/OLC was able to show there was no substance to these charges, but the solicitation charge came down to the grievant’s version and that of his accuser and the two witnesses to whom he related the events of that evening when they were fresh in his mind. Although the arbitrator stated that he was generally inclined to believe an officer instead of his accusers, in this case the arbitrator had to question the motives of the witnesses against those of the grievant and believed the word of the accusers. The grievance was denied.

(Issued January 25, 2010. Employer-Miami County Sheriff)

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OFFICER TERMINATED FOR DISHONESTY 

At the time of discharge the grievant ant had been an employee of the department for 11 years. At the start of his shift, the grievant took a call of a citizen who had locked herself out of her car. The City regularly performs lock out service for its citizens. Arriving on the scene the grievant told the citizen that he didn’t have the right tool to let her into her car and further “we (the city) are starting not to do lock outs. We can’t even get into most modern cars now anyways.” When the citizen complained to the department, an inquiry was made and the grievant was issued a counseling and coaching for the way he had handled the situation. But during the inquiry, the grievant had stated that his Lieutenant had told him, in essence, to lie to the public if necessary regarding lock outs. The Lieutenant denied ever saying anything of the kind.

Soon thereafter the grievant was involved in a suspected case of drug abuse when he noticed someone using a syringe in his car. While transporting the suspect to the hospital, the man’s car was impounded. Since the grievant was the arresting officer, he was responsible for the administration of the impoundment. The arrestee contacted the grievant when he tried to retrieve his car. The grievant told the suspect a “holder” had been placed on the car because of possible drug charges. The grievant then told a fellow officer that the vehicle was scheduled for possible forfeiture, when this was not the case. The grievant then told his sergeant that it was a Lieutenant (not the same lieutenant as in the first case) who had placed the “holder” on the vehicle and was pursuing the forfeiture. As it happened, the Lieutenant knew nothing about the arrest or the “holder.” The suspect eventually got his car back.

The City launched a formal investigation into the actions and statements of the grievant and terminated him for 1) dishonesty towards the locked out citizen 2) dishonesty about the Lieutenant’s statements regarding assisting citizens with lock outs and 3) dishonesty regarding the “holder” on the suspects vehicle.

The attorney for the FOP/OLC got the charge for dishonesty towards the locked out citizen thrown out. The employer had issued a coaching and counseling to the grievant for the event and despite the employer’s contention that such counseling and coaching is not discipline, the agreement considered it otherwise. But despite the attorney’s effort to put the grievant’s statements in a positive light, the arbitrator considered the grievant to be dishonest on both occasions. The FOP/OLC’s effort to show disparate treatment towards the grievant could not be proved, and the level of disciplined was not reduced. The grievance was denied.

(Issued February 25, 2010. Employer-City of Springboro)

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SEXUAL HARASSMENT NOT PROVEN; LIEUTENANT GETS HIS STRIPES BACK

A female employee of the jail had received numerous evaluations, which indicated a history of difficult relations with supervisors and co-workers. She mentioned to her supervisor, the grievant, that other employees were not performing their duties as conscientiously as she was. The grievant advised her to discuss the matter with her co-workers. She sought other opinions from other supervisors. The other supervisors gave essentially the same advice. She pursued her complaint to the chief of the jail.

The following month she sent a memo to the director of personnel stating she was being harassed. She cited in particular the grievant having a YouTube video in the kiosk which she said had “offensive” lyrics She alleged an atmosphere supporting a “boys club in the kiosk” and disgust with the way she was being treated. The grievant was not aware of the memo. The next day the grievant reassigned the woman to another part of the jail, one where she would have limited contact with her co-workers. She fired off a memo to the Jail Chief. She complained about her treatment in general and the grievant in particular. The Jail chief assigned a sergeant to conduct an investigation.  He got the internet log and interviewed several employees but not the grievant. In the interview with the complaining woman, she specifically stated that her complaint was not about sexual harassment-just harassment due to her work schedule being changed.

Notwithstanding her statement to the contrary, several months later she filed a complaint with the EEO officer citing the specific incident of the “offensive” video as evidence of sexual harassment. This time a lieutenant was assigned to conduct an investigation and again the grievant was not interviewed. The investigation alleged the grievant had violated several rules, including unauthorized use of the internet and fostering a hostile work environment. The grievant was transferred to another facility. Soon thereafter, the woman filed a sexual harassment charge with the Ohio Civil Rights Commission naming not only the grievant but also the Jail Chief. The employer charged the grievant with insubordination, neglect of duty, dishonesty, computer misuse and, of course, harassment. He was judged guilty of the infractions and given a 90-day penalty, divided into forfeiting leave and the rest on paper, but most significantly, a reduction in rank from Lieutenant to Deputy.

The employer argued the liability it had if nothing was done to eliminate a sexually hostile workplace. The attorney for the FOP/OLC countered that the complainant herself had said that this was not a case of sexual harassment. The arbitrator noted that a single instance of inappropriate exposure to offensive lyrics did not constitute harassment. When the woman complained about the music, the grievant curtailed it. Likewise, he moved the woman not to retaliate but to ease the tension in the workplace-by temporarily getting her away from her co-workers. The rest of the charges were piling on, and the arbitrator was particularly upset that throughout the investigation the employer did not interview the grievant.

The arbitrator allowed the 90 days, with no time actually served, and gave the Lieutenant his stripes back with back pay.

(Issued March 5, 2010. Employer-Summit County Sheriff)

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EXCESSIVE FORCE GETS OFFICER THREE DAY SUSPENSION

A frequent visitor to the City jail, the suspect was ultimately cited for DUI and driving under suspension. The suspect was received at the jail by the grievant, who directed the suspect through the receiving area into the booking area, all while the suspect was handcuffed. The processing, all recorded on tape but without audio, shows the grievant placing his hand on the suspect’s shoulder, spinning her around, and placing his left arm under her chin and around her neck in what the grievant termed a chin lock. The grievant took a couple of steps with the suspect before releasing her as she passed through the door to the booking counter.

The next day the suspect was released. She complained to a fellow officer that she had been choked by the grievant the previous night, and the complaint was forwarded to the jail commander. Although there was some delay in viewing the tape, the grievant was eventually charged with use of excessive force and for failure to fill out a “Response to Aggression Report”. Following a pre-disciplinary hearing he was given a three day suspension.

At the arbitration hearing, the attorney for the FOP/OLC argued that the level of force was appropriate to the situation because the suspect was well known for her behavior and the grievant  feared that the suspect would spit on him. By using the methods that he did, the grievant was putting the suspect  on notice that such behavior would not be tolerated.

But the arbitrator noticed from the tape that at all times the suspect was compliant with the grievant and  continually followed directions, even after the handcuffs were removed. The force used by the grievant was unnecessary under the circumstances and the suspect rightfully complained. The arbitrator also took note that a similar infraction in 2004 (the record is not clear how a 5 year old incident got in) had merited a 15 day suspension, which showed that the corrective nature of discipline had not had the desired effect. The 3 day suspension was sustained.

(Issued August 14, 2009. Employer-City of Elyria)

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DISPATCHER WHO SAYS SHE CAN’T REMEMBER IS NOT LYING

Two dispatchers were busy on their shift. A call came into one of the dispatchers who couldn’t complete a search at her work station and scooted her chair over to the grievant’s computer and moved the mouse. The grievant slapped her hand “as if to tell me to get away.” There was no mention of the incident. Two days later another dispatcher, who was not present when the incident happened, reported to the supervisor that the grievant had “slapped” her co-worker. The supervisor asked around and then made a report to the chief reporting her findings as well as unrelated accusations.

A meeting was held in the chief’s office and the grievant was asked whether she had slapped the other employee. The grievant said she had not. When the questions was clarified as to whether she had slapped the employee’s hand, the grievant said she may have, she didn’t remember. The chief ordered an internal investigation. The investigators obtained a written statement from the slapped employee who said the grievant had indeed slapped her hand when she reached for the grievant’s mouse. On re-interviewing the grievant, she again said she couldn’t remember slapping anybody. The agreement called for polygraph exams to be given to employees under investigation (the FOP/OLC inherited the contract from another union) and the employee was instructed to give only yes or no answers. She was consistent in her answers in both tests (allowed under the contract) and with her answers to the chief. Both examiners said the grievant was being deceptive. The grievant was terminated.

At the arbitration hearing the employer made an extensive argument about the honesty requirement and how the arbitrator should not substitute his judgment for that of the employer. The polygraph exams requirement were an agreement with the union and the results of which could not now be challenged. There was an ongoing recording in the dispatch area with a slap-like sound on it which verified the slap, and the employer was justified in his actions.

The attorney for the FOP/OLC characterized the slap as a gentle tap and argued that the recording indicated no response from the other employee, hardly appropriate if the employee had been slapped as put forth by the employer. The grievant had admitted to the chief in the initial interview that she may have slapped the employee’s hand, she just didn’t remember. Throughout the inquiry she was consistent in her answers. The other employee also did not think it was a big deal.

The arbitrator sustained the grievance. The grievant never said she did not slap her co-worker. She said she couldn’t remember. A slap to her meant a slap across the face. She would have remembered that. The grievant was reinstated with all back pay.

(Issued February 12, 2010. Employer-City of Brunswick)

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OFFICER NOT GUILTY OF EXCESSIVE FORCE; TIME RESTORED

The grievant was found to have used excessive force on two, unrelated occasions. In the first instance, the grievant answered a call to a local high school where a fight between students was reported. A deputy sheriff was already on the scene when the grievant arrived. The grievant observed a student making threatening gestures towards another student and moved to intervene. He wrestled the aggressive student to the ground and placed him under arrest. Two weeks later the student’s mother filed a complaint with the department.

The second instance occurred the day after the investigative interview over the first instance. This time, four officers responded to a report a case of domestic violence in which a knife was used. Included with the responding officers was the grievant’s supervisor. A cell phone was viewed by one of the officers to see if there were a picture of the suspect. They phone was then put down, only to ring a short time later. The grievant picked up the in the thought it might be the suspect. One of the woman tried to  wrestle the phone from the grievant, including twisting his fingers. The grievant grabbed the woman’s arm and sat her down. All of this activity was observed by the grievant’s supervisor. The grievant filed out an incident report, but not a resistance report  It was for failure to fill out the second report that the grievant was found in violation. For both cases the grievant was given two days without pay.

The department investigated both charges.  The arbitrator was not impressed with the investigation of the first charge. He (the arbitrator) found discrepancies in the statement of the arrested student, and implied that the interviewer had coached the student with his answers. He found that the grievant had acted reasonably under the circumstances and was not guilty of using excessive force.

In the second case, the employer cited their law director as stating the grievant did not have a right to answer the woman’s phone. But the grievant was not charged with a violation of a witness’s rights. The charge went to filling out a report, and further, the law director was not at the hearing. The grievant held the woman’s arm and sat her down. She filed no complaint and in fact was arrested for obstructing official business. The grievant thought, though mistakenly, that the presence of his supervisor obviated his need to file a report. That idea was reinforce when his supervisor did not ask him for a report. This charge, too, was dismissed  and the grievance sustained.

(Issued February 5, 2010. Employer-City of Lima)

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CONVICTION, PAST RECORD DOOM CORRECTIONS OFFICER

The grievant had been employed since 2004. Beginning in 2006 she had received the following discipline:

The final straw occurred when she was convicted of driving a motor vehicle while her license was under suspension. The license was under suspension for a financial responsibility administrative suspension, caused by default on an auto loan. The official cause for the termination was “conduct unbecoming”.

The attorney for the FOP/OLC argued that the grievant’s license had been suspended before but she was never disciplined for it, but the employer emphasized that it was the conviction, not the suspension that she was being terminated for. The grievant claimed she was a victim of discrimination, but she produced no evidence. The FOP/OLC argued that the inquiry into the conviction was the result into the employer’s investigation of the repossession of the grievant’s automobile, but the arbitrator concluded the inquiry was a legitimate follow up investigation. Finally, the FOP/OLC  argued that the infraction was not employment related, and therefore did not merit termination.

The arbitrator concluded that a conviction of a member of the law enforcement community could be grounds for termination, although it was not mandatory. The employer had decided, based on prior discipline, to terminate the grievant. Based on the record, the arbitrator decided not to set aside the termination.

(Issued January 25, 2010. Employer-Hamilton County Sheriff)

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CONTRACT QUALIFIES SERGEANT FOR EDUCATION PREMIUM PAY

The most recent contract, for which the grievant was a member of the bargaining committee, changed the education premium pay to read

Any member with a bachelor’s degree who did not major in law enforcement, but who has law enforcement credits equal to or greater than the credits required for an associates degree in law enforcement at Terra Community College (in any given contract year) shall receive the 4% wage premium currently granted to members with associate’s degree in law enforcement.

The grievant earned a Bachelor of Science degree in Natural Resources from Ohio State University in 1995. He therefore met the first test of qualifying for the education premium pay. To qualify for the second part, the grievant sought an opinion from Terra Community College as to whether he had law enforcement credits equal to or greater than the credits required for an Associate’s Degree in law enforcement.  The College Bulletin allowed for “credit for work or life experiences”. That credit, as described in the bulletin provides

Students may be granted credit for the learning proficiencies acquired through previous training, work or life experiences.  Required courses in a technology program may be waived for prior training or experiences.

After consulting with a professor in the college’s law enforcement program, the grievant believed he met all of the requirements for the equivalent of an associate’s degree in law enforcement and requested the educational premium pay. The Township questioned the equivalency of the college’s criteria and denied his additional pay. A grievance was filed.

At the arbitration hearing the attorney for the FOP/OLC had as a witness the professor at Terra Community who recommended that the grievant be given the credits. Although he could not testify as to the contract, he was certainly qualified to address the qualifications for achieving the degree. The grievant met every requirement for the equivalency of an associate’s degree in law enforcement. The city offered no witnesses to rebut the FOP/OLC’s witness.

The arbitrator ruled that in the absence of any evidence to the contrary, the grievant qualified for the education wage premium.

(Issued December 16, 2009. Employer-Perkins Township)

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DEPUTY TERMINATION RELATED TO ELECTION YEAR MISBEHAVIOR

The grievant, a nineteen year veteran of the department, was terminated for a variety of major offenses.

He was charged with insubordination for failure to answer questions during an internal investigation.

He was charged with insubordination for failure to follow a written directive from the sheriff by contacting the media and providing a written statement to the newspaper.

He was charged with insubordination for failure to follow oral and written directives to install and maintain a GPS unit on his cruiser.

He was charged with willfully demeaning, verbally abusing and/or humiliating another person.

He was charged with using his official position to harass a member of the public.

At the arbitration hearing, it was established that the grievant was not a fan of the incumbent sheriff, who was appointed to the position in January and subject to a vote of the people in November. He began to send blogs, using a pseudonym, which were not only critical of the sheriff but which contained personal matters which were of a private nature. When the employer questioned him about the blogs, he said he wanted his attorney (an attorney not affiliated with the FOP/OLC) present. When told he didn’t need an attorney, the employer chose a Union representative from another unit and asked her to be present at the inquiry. Although he was not given any Garrity warning, which the arbitrator said was irrelevant, he also was not given a direct order to answer the questions, an essential element to a charge of insubordination. The arbitrator ruled that the employer had not proved a case of insubordination for the grievant’s behavior during the investigation.

The grievant testified that he did not contact the media, that the media contacted him. However, the rule contemplates both circumstances and the grievant supplied the newspaper with a “prepared” statement. The arbitrator found that the employer had proven its case on this infraction.

The arbitrator thought the GPS installation was a case of miscommunication and found the employer had not proved its case.

The arbitrator was offended by the material which was disseminated in the blog, stories about the sheriff (who was identified by name) having an affair with another employee and his lieutenant who was “sleeping around”. The arbitrator determined the employer proved its case in this matter.

The grievant was also found to have threatened the operator of the blog, who refused to post some of the grievant’s comments.

Having found just cause for the grievant’s termination, the arbitrator denied the grievance.

(Issued December 8, 2009. Employer-Shelby County Sheriff)

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NEW SHERIFF CANNOT ALTER SENIORITY PROVISION

The contract has not changed for many years. It reads:

All bargaining unit members shall be entitled to a shift preference based on bargaining unit seniority….Once shift preference is established, then bargaining unit days off will be selected based upon bargaining unit seniority.

Notwithstanding the provisions of this article, the Sheriff may make all shift assignments as necessary to comply with the minimum jail standards issued by the state of Ohio concerning the reception, custody and release of prisoners.

The grievant, who was female, had always picked her shift preference and days off by seniority, regardless of the gender of the other applicants. With the new year came a new sheriff and a new administrator of the jail. According to his testimony, he discovered there were really two seniority lists, one for males and one for females. The males made their choice and the females could choose, based on their seniority, what was left. The grievant was denied her pick and a younger male employee got her days off.

The attorney for the FOP/OLC called 4 witnesses whose experience spanned 20 years who testified that seniority had always determined who got what days off, regardless of gender. In the instant case, the administrator wanted three females on a particular shift rather than the usual one, which caused the grievant to be denied her pick.

The arbitrator believed the testimony of the witnesses provided by the FOP/OLC. There was no state requirement for three females on a particular shift. The administrator was incorrect in describing the past practice and incorrect in the assumption that management rights allowed him to do as he pleased.

The employer was ordered to allow the grievant to exercise her seniority without regard to gender within 90 days of the award. Further, the employer was ordered to pay her overtime for all hours worked on her preferred days off after January 8, 2010 if there were any delay in the implementation of the award.

(Issued January 2, 2010. Employer-Ross County Sheriff)

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ONE DAY SUSPENSION OVERTURNED

The grievant responded to a bar fight. Most of the patrons of the bar were out in the parking lot cheering the respective combatants on. The grievant separated one if the fighters from the other and told him to stand at the other end of the parking lot. One of the onlookers approached the grievant and complained of chest pains, stating he had had a recent heart attack. The grievant called a medic and proceeded to interview the onlookers. No one, including the man with the chest pains and a woman who was involved in the initial fight, would identify any suspects. No one wanted to press charges. The man with the chest pains was taken to the hospital.

When the grievant got back on station he asked his sergeant if he had to do a report. He told the sergeant all the details, including the incident with the chest pains, and his sergeant determined that no one was willing to press charges and no one was hurt, therefore it was just a bar fight.

Two of the people who were at the bar showed up at the department later that day. The man the grievant pulled from the fight and the man who complained of chest pains. They wanted to complain about the grievant because he didn’t take their statements concerning the fight and wanted to file assault charges. They alleged he failed to do this due to their sexual orientation. The officer who took their complaint went out to the bar and interviewed the bartender who said that the only person he could indentify who was involved in the fight was the same man the grievant separated earlier that morning-the man who had come to the station to file the complaint against the grievant.

The grievant knew nothing about the complaints until he heard about them on the evening news. When he was told he was scheduled for an internal affairs interview, he said he wanted his staff rep to be present. His staff rep requested it be postponed until he could be there. The interviewer told the grievant he had to be interviewed without representation. The fact that the interview was to take place at midnight on a holiday weekend had some bearing on the availability of a representative.

The grievant got a one day suspension. He grieved a lack of just cause and the fact he was denied union representation for his interview.

The arbitrator found that the grievant was denied his procedural rights when he was forced to be interviewed without representation. The arbitrator also was suspicious of the complainant’s version of what happened. The grievant offered to help the situation but was rebuffed, until it looked like the men might be suspects, at which point they turned on the grievant. The arbitrator ordered the employer to return the grievant’s lost time based on the just cause language. He didn’t need to prescribe a remedy for the denial of Union representation.

(Issued December 22, 2009. Employer-Montgomery County Sheriff)  

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EMPLOYER CANNOT DISCONTINUE EXTRA DUTY ASSIGNMENTS

Ever since at least 1993, the City supplied and the officers worked extra duty traffic control for weddings held at an historic church in the City’s circle. The church had been owned and operated by the Ohio Historical Society, but since budgeting woes struck the state, the Society left operation if the church to the City. Eight months after the City assumed control of the church, the Chief put out a memo stating that future assignments would go to volunteer auxiliary officers. The Officers filed a grievance.

The City argued that they never owned the church and the assignment of officers was at the discretion of management. Whereas the Society had previously directly paid the officers in an arrangement between the officers and them, now that the City was in charge and the City could use anybody they wanted.

The attorney for the FOP/OLC pointed out that a section of the contract states

 …the Employer agrees that there will not be an elimination or modification of any previous benefit, privileges or practices of the Police Department without prior negotiations and a written agreement between the parties.

 The officers have enjoyed the benefit and privilege of providing traffic control at the facility for many years. While the Historical Society may have been in charge of their own operations, the officers were provided by the City, at the City rate of pay, at a City negotiated minimum number of hours(3). For the City to now claim that the arrangements have changed is disingenuous. Operational control of the church is not material to the case, argued the FOP/OLC.

The arbitrator agreed with the FOP/OLC. The extra duty at the church was a long established benefit to bargaining unit members, which could not be taken away without benefit of bargaining. The City was ordered to restore the traffic control duty to bargaining unit members.

(Issued October 16, 2009. Employer-City of Tallmadge)

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IT’S NOT THE TIME TO WIN LAY-OFF ARBITRATIONS

In what is becoming a pattern in futility, lay-offs continue to plague the law enforcement community as well as other public employees. The grievance/arbitration process is not reversing that trend.

In this case the facts are not as good as some others, so the outcome is not a surprise. The employer sent a letter to all organized employees in the City telling them the revenue shortfall and the effect it was having on the budget. The projected shortfall was significant and the City requested the representatives of the employees to open existing contracts or face lay-offs. The City wanted a 10% wage reduction to limit the number of lay-offs. Specifically the proposal to the FOP was a 10% wage reduction and three lay-offs. If there were no modification in the wage costs, there would be six laid-off FOP members.

The FOP voted not to reopen the contract. Three days later six FOP members got a lay-off letter (there was a dispute as to whether the letters gave a 14-day notice as required by contract. The arbitrator ruled that the 14-day rule had been complied with).

The six members filed a class action grievance alleging that the budget shortfall was a hoax and that the City was retaliating against the FOP for refusing to open up the contract.

The FOP/OLC attorney tried to argue that the lay-off required a “just cause” requirement for the layoffs(similar to discipline) and lost that, argued a violation of the grievance procedure (it was a non factor), argued that the City had been awarded a “cops” grant and therefore 2 fewer officers had to be laid off (the City argued they hadn’t received any money nor were they assured they would) and that the City could receive grants to provide computers and a new police car thus alleviating the need to appropriate additional for those items. The arbitrator would hear none of it.

The fact of the matter, concluded the arbitrator, was the City was out of money and the FOP knew it. The City had properly executed the lay-off and all the citations of the FOP were not going to cause the arbitrator to rescind the lay-offs.

(Issued November 30, 2009. Employer- City of Steubenville)

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LAYOFFS ALLOW RESUBMITTING VACATION REQUESTS

Eighty-seven members of the bargaining unit were laid off on December 24, prior to the conclusion of the fiscal year (December 31). The contract allows for requests to be submitted for vacations in the following year by December 31. A sheet is posted in October and states the maximum number of employees which can be off at one time due to manpower needs. Many of the employees had already submitted their requests before the layoffs occurred. The employer cancelled the sign-up sheet for vacation requests and put up a new sheet with a lower maximum allowed of at one time. The vacation selections are awarded by seniority.

A grievance was filed stating that the contract was clear-all vacation requests for a week or more of vacation must be submitted by December 31 and awarded based on the submission. Included in the remedy requested was reimbursement for any lost money from deposits etc…

The FOP/OLC attorney argued that the relevant portion of the contract says that “such vacation requests shall be honored” and that “an employee who has received approval of his/her vacation request …shall not lose his/her rights to that approved vacation request.”

The employer cited the management rights clause of the contract to justify their changing the vacation procedure. Citing safety needs, they argued that fewer employees on shift meant that they could allow fewer employees to take scheduled leave. Further, the notice of resubmission stated that a Deputy’s request would be honored if proof was furnished of a financial obligation related to the initial request or if the initial request was related to a family event, i.e. a wedding, anniversary etc. The employer’s cancelling of the initial notice was for manpower purposes only, and they were trying to make it as easy on the employees as possible.

The arbitrator agreed with the employer. The layoffs meant that the employer could allow fewer employees to take vacation at the same time. The employer had anticipated any hardship the employees might incur as a result of a change schedule, and did not violate the contract by asking that the selection be resubmitted.

(Issued October 29, 2009. Employer-Hamilton County Sheriff)

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INSURANCE CHANGE IS NOT SUBSTANTIALLY SIMILAR

The existing contract called for the employer to provide hospitalization insurance to employees with the employees making a 20% co-pay towards the premium. There was a $500 deductable which applied only to major illness or injury. The employer was free to change plans or insurance carriers, but was required to provide a plan “substantially similar” to the one in effect at the time the contract was signed.  In the spring of this year the employer, facing a financial hardship, changed insurance plans which called for a heath savings account (to which the employees alone would contribute) and insurance coverage after the employee met a $2500 deductable ($5000 for family plan). A class action grievance followed after the plan was initiated.

The attorney for the FOP/OLC called numerous witnesses who testified as to the ill effects the change in insurance plan had on them, including prescription costs which precluded employees from filling their prescriptions. Another witness testified to the out-of-pocket expenses for tests and procedures. One witness claimed that costs accounted for 50% of his income. A non bargaining unit employee said he couldn’t afford the insurance and simply turned it down.

The employer tried to paint the change in the best light she could. The premium co-pay, for example, decreased by $10. It was also argued that the change was permitted under the terms of the contract. And one witness, who testified about steps the employees could take to save money, “bordered on the absurd”, according to the arbitrator. It also came out, through documents the employer submitted, that the change in insurance plans resulted in a one million dollar savings county-wide.

The arbitrator ruled that the insurance provided by the employer was not substantially similar to the one enjoyed by the employees at the time the contract was entered into. He directed the employer to terminate the current healthcare plan and replace it with one that contained substantially similar benefits to the predecessor plan. He also ordered that employees be reimbursed for expenses that exceeded those in the replacement plan. Employees who did not participate in the employer’s plan because of cost could be reimbursed for expenses incurred.

(Issued August 21, 2009. Employer-Brown County Sheriff)

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SERGEANT GETS HER JOB BACK

The grievant, a sergeant since 2000, worked a limited time during the month due to illness. Upon her return to duty, she noticed that an inmate appeared to be “battered”. Needless to say, the condition of the inmate and the investigation of the circumstances which led to his condition led to a settlement with the inmate, in interest from the Department of Justice, and the termination of the grievant. The grievant was not dismissed for actual mistreatment of the inmate, but rather for her responsibility as supervisor of the shift which inflicted the physical abuse.

The employer tried to include extraneous charges in the decision to terminate, but the attorney for the FOP/OLC proved that such incidents occurred after the termination and ought not to have been considered (the merits of the charges were not addressed). The employer argued that the grievant was responsible for all activities on her shift, whether she was aware of them or not. The FOP/OLC allowed how this was correct, but that some rules were observed in the breach, such as reporting laser use on the inmates. The employer alleged that the grievant instructed her subordinate not to fill out laser reports, yet some reports were filled out on her shift while none were filled out on other shifts. The inmate, who called the jail after he was released, said the grievant was not present nor did she participate in the abuse. Although the inmate had a history of self-mutilation, the grievant was the only jail employee who reported the inmate’s condition to the jail nurse who had the inmate hospitalized.

The grievant was accused of not reporting the abuse up the chain of command, but the attorney for the FOP/OLC pointed out that the jail administrator walked by the inmate every day and saw him in the same condition as the grievant, yet reported nothing.  Further, the grievant asked to talk to the Sheriff about the inmate, but the Sheriff would not see the grievant. Under the circumstances, the grievant did more than any other employee to see that the inmate’s rights were honored.

Nevertheless, the arbitrator ruled that the grievant had failed to properly notify he superiors about the abuse. He determined that the penalty imposed was too harsh. He reduced the termination to time served and reinstated the grievant to her position. The matter is still under investigation by the FBI.

(Issued November 13, 2008. Employer-Belmont County Sheriff)

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FAILURE TO NOTIFY DISPATCHER RESULTS IN SUSPENSION

The grievant was a 7 year veteran of the department. One morning she observed a male suspect kneeling beside a van door. After parking behind the van the suspect came up to the grievant, gave a name and social security number, and then ran away. The grievant radioed in a description, and proceeded to follow the suspect in her car. She came across the suspect in a parking lot hiding beneath a parked car. The grievant stepped out of the car and told the suspect not to move. He ran away anyway. The grievant again radioed to other officers who subsequently apprehended the suspect. The grievant was eventually suspended for 7 days for

1)failure to obtain authorization from the shift supervisor before initiating a pursuit;

2)failing to notify dispatch regarding her location and situational conditions after initiating a pursuit; and

3)failure to notify dispatch when exiting and reentering her vehicle.

All of the above infractions have a corresponding rule in the code of regulations.

The attorney for the FOP/OLC argued that the grievant was not in pursuit because she did not have a visual of the subject, and was, in fact, in search of the suspect. The FOP/OLC also raised the issue of when the grievant got out of her vehicle vis-à-vis the activities of the suspect. The arbitrator did not see the distinction and found that the grievant had, indeed, violated the rules.

Unfortunately for the grievant, the employer had issued her a five day suspension not one year previously for the exact same offence. That suspension came on the heels of counseling and a warning. The arbitrator found that the corrective nature of discipline had not had its effect, and the seven day suspension was allowed to stand.

(Issued August 12, 2009. Employer-Cleveland State University)

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PRIOR PUBLIC SERVICE MEANS JUST THAT-EXCEPT FOR….

When the parties completed negotiations for the applicable agreement, it was on the heels of the employer granting a grievance filed by an officer who claimed additional vacation leave because of prior service with another department. The employer granted the grievance because it had done so for previous employees and because state law required it. The employee had been employed by the department for 4 years before he made his claim, which the employer wanted to avoid in the future. The language negotiated into the new agreement gave vacation credit for “prior public service” but required all employees to submit evidence of the entitlement within 60 days of the effective date of the contract or forever forego the vacation credit.

A grievance was filed by all affected employees when the employer failed to give credit for all documented prior service. The third step response was “There is still a difference of opinion of public service that qualifies for vacation credit…”

The attorney for the FOP/OLC argued that “prior public service” couldn’t be clearer. It means employment that is public and not concurrent. If the parties had wanted to limit the type of service that qualified, the words to do so were available. The bargain the employer got was the requirement that employees make their claim within 60 days (90 days for new hires) or forever forego the additional credit. In exchange, the FOP/OLC got credit for all prior service.

The employer claimed that all they recognized was prior service in which the employee was a full-time law enforcement officer. The employer was suffering from bad economic times and the FOP/OLC had to know the employer was not in a position to take on additional liabilities. The employer was stuck with a pig in a poke.

The arbitrator agreed that prior public service meant just that. The parties could easily have stated “prior law enforcement service” or “full-time service”, but they didn’t. But the arbitrator did not agree that the section was all that clear. He volunteered to fill in the “gap” created by unclear language.  He determined “prior public service” to mean service for which vacation was accruable.  Such an application is consistent with other contracts that have similar articles. The parties were instructed to go back and determine which prior service qualified under the arbitrator’s interpretation.

(Issued August 17,2009. Employer-Perkins Township)

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BREATHALYZER TESTER REINSTATED-NO BACK PAY

This case arises out of a celebrated incident involving Highway Patrol Troopers as well as two officers from this Northeast Ohio Department.

The grievant, a 14 year employee of the department, was responsible for renewing his annual license to operate a Breath Alcohol Content DataMaster. The test consists of a written exam of 50 questions and a proficiency exam administered by a Field  Inspector from the Ohio Bureau of Alcohol and Drug Testing. On the day of the testing, a Trooper showed up at the site with a sheet indicating the answers from the previous year’s exam. The exam did not change from year to year. The Trooper passed the answer sheet among his fellow Troopers. The grievant, not wanting to be left out, asked “what about me”. He was provided with a copy of the answer sheet. He then says he put the answer sheet on his desk, face down, with a stapler on top of it.

The proctor noticed a Trooper with a copy of the answers and removed him from the room. He then returned to the room sometime later, and asked whether anyone else had a copy of the answers. No one admitted to having a sheet. The grievant says he was not in the room at the time, having already finished his test. The proctor asked a group sometime later if they had the sheet, and two Troopers admitted they did. The grievant says he was in another room when the proctor asked a second time.

When the story leaked out and the newspapers printed it, the Inspector General conducted an investigation with the following result: 4 Troopers were removed but reinstated as a settlement of their grievances. A fifth Trooper was removed but successfully petitioned for reinstatement. 4 Troopers were reinstated pursuant to arbitration awards. Two Sergeants were removed but reinstated by an arbitrator. Three Sergeants were reinstated as the settlement of their grievances. Two Troopers, who had the sheet, were not charged.

In the grievant’s case, the arbitrator ruled that the employer could not prove that he had misled anyone by not confessing to having the sheet when he says he was never asked. He readily admitted having the sheet when asked directly by the internal affairs inquiry in his own department. But his conduct on the day of the examination was conduct unbecoming, and the arbitrator was not inclined to overlook the grievant’s behavior. The grievant was reinstated but without any back pay. He also had to take the test again.

(Issued August 11, 2009. Employer-Jackson Township)

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EXCESSIVE FORCE GETS OFFICER THREE DAY SUSPENSION

A frequent visitor to the City jail, the suspect was ultimately cited for DUI and driving under suspension. The suspect was received at the jail by the grievant, who directed the suspect through the receiving area into the booking area, all while the suspect was handcuffed. The processing, all recorded on tape but without audio, shows the grievant placing his hand on the suspect’s shoulder, spinning her around, and placing his left arm under her chin and around her neck in what the grievant termed a chin lock. The grievant took a couple of steps with the suspect before releasing her as she passed through the door to the booking counter.

The next day the suspect was released. She complained to a fellow officer that she had been choked by the grievant the previous night, and the complaint was forwarded to the jail commander. Although there was some delay in viewing the tape, the grievant was eventually charged with use of excessive force and for failure to fill out a “Response to Aggression Report”. Following a pre-disciplinary hearing he was given a three day suspension.

At the arbitration hearing, the attorney for the FOP/OLC argued that the level of force was appropriate to the situation because the suspect was well known for her behavior and the grievant feared that the suspect would spit on him. By using the methods that he did, the grievant was putting the suspect  on notice that such behavior would not be tolerated.

But the arbitrator noticed from the tape that at all times the suspect was compliant with the grievant and  continually followed directions, even after the handcuffs were removed. The force used by the grievant was unnecessary under the circumstances and the suspect rightfully complained. The arbitrator also took note that a similar infraction in 2004 (the record is not clear how a 5 year old incident got in) had merited a 15 day suspension, which showed that the corrective nature of discipline had not had the desired effect. The 3 day suspension was sustained.

(Issued August 14, 2009. Employer-City of Elyria)

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NOT PUBLISHING RULE RESULTS IN OVERTURNED SUSPENSION

The grievant was given a one day suspension for “unsatisfactory work or failure to maintain required standard of performance” in which he allegedly failed to complete the paperwork for two citations he issued to an individual.

The attorney for the FOP/OLC pointed out that the bargaining unit members had never received a copy of the “Rules and Regulations” under which the discipline was assessed.  The contract stated:

Within six (6) months after the ratification of this agreement, all bargaining unit members will have current versions of the Department “Policies, Procedures and Work Rules Manual”. All bargaining unit members shall receive a copy of this Agreement and the manual.

The City had no explanation for why the members had not received a copy of the rules and procedures, but did not deny that they had not been distributed.

The arbitrator did not decide whether the grievant was guilty of subpar performance. He simply ruled that employees could not be held responsible for rules that were not published and therefore not known. He ordered that the one day suspension be rescinded and the grievant be paid for lost time and benefits during this suspension.

(Issued July 15, 2009. Employer-City of Mount Vernon)

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JUNIOR EMPLOYEE FAILS TO PROVE HE’S MORE QUALIFIED THAN SENIOR

The employer posted a position for an investigator for which there were three applicants. The grievant had an extensive history in law enforcement including a background as an investigator with another employer. He also had a Masters Degree in Criminal Justice as well as some post graduate work. The arbitrator’s decision included several pages on the grievant’s work history and his run-ins with the employer, all of which had been decided in favor of the grievant.

The contract provisions for determining the successful applicants for job openings included

1) Ability to do the job;

2) Qualifications:

3) Seniority; and

4) Employee work record

When the grievant was not awarded the position he filed a grievance, based on his opinion that his qualifications far outmatched the successful applicant.

The employer’s testimony centered on the grievant’s lack of ability to work well with others and command their respect. The Arbitrator’s decision in the case was much easier.

The successful applicant had more seniority than the grievant. It is the burden of the unsuccessful applicant in a “relative ability” clause to convince an arbitrator that he or she is “head and shoulders” above the successful candidate to outweigh the issue of seniority. Since the grievant had an alleged history of not working well with others, that factor worked against his other qualifications. Since the successful candidate had more seniority than the grievant, the grievance was denied.

(Issued June 12, 2009. Employer-Brown County Sheriff)

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PROJECTED DEFICIT WARRANTS LAY-OFFS

On November 28 the City issued a letter to five officers that “due to a lack of funds” they were being laid off effective December 31. The letter was sent on that date to meet the 30 notice requirement of the collective bargaining agreement. The employees filed a grievance challenging the City’s right to lay them off. In January the City sent a letter to a sergeant indicating that “due to a lack of funds” the city was going to lay him off but he could return to his former position as an officer. The lay-off was to take place in 30 days. He, too, filed a grievance, with the two grievances combined into one arbitration hearing. The issue before the arbitrator was whether the City had violated the agreement when it laid off the grievants due to a lack of funds.

The City maintained that it was the burden of the FOP/OLC to prove that the city incorrectly administered the contract, namely, that the City had adequate funds. The FOP/OLC argued that the City was the keeper of the records and it should have to prove a lack of funds, which it had failed to do. The arbitrator ruled that the burden to prove a contractual violation rested with the FOP/OLC, but the City had to make a prima facie case of a lack of funds.

As its initial argument, the City cited the Ohio Administrative Code which stated that “’lack of funds’ means an appointing authority has a current or projected deficiency of funding required to maintain current or sustained projected levels of staffing and operations”. The city then offered as evidence reduced income tax collections, unemployment statistics, reduced interest income, the phasing out of the tangible personal property tax, reduced building permits and home foreclosures. All of this, insisted the City, created a lack of general fund revenue to sustain the full compliment of Police Officers.

The attorney for the FOP/OLC rebutted this evidence item by item. The arbitrator, however, found that some evidence used by the City was convincing. Since there was some evidence, the lay-offs were allowed to stand. In an ironic twist, the revenue projections used by the City were not available when the letters of lay-off went out. The projections were not available until December 12. Since the evidence did not exist until December 12, the City could not send the notices with a thirty day notice until that date. Therefore the Officers were to be paid from January 1 to January 10, but then could be laid off. The sergeant’s letter was not sent until after the projections were available and was not entitled to any pay.

(Issued July 7, 2009. Employer-City of North Olmsted) 

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OFFICER GOT SAME DISCIPLINE AS OTHER CITY EMPLOYEE

The grievant, in order to qualify for a $400 bonus, took a blood pressure test and the results were 118/90. He could have qualified for an additional $400 if his blood pressure were below 120/80. He was told he could rest and take the test again. While waiting, a firefighter who served as a paramedic was waiting to take a body mass test. The firefighter went to the fire station bay, got a pill, and told the grievant to put the pill under his tongue and let it dissolve. He was told that the pill would lower his blood pressure. He took the test again but his blood pressure had not decreased. He eventually passed the test and received the $800 bonus. The pill, which had been provided by the firefighter, was nitroglycerin and was the property of the city. The employer found out about the abuse of a prescription drug and disciplined the grievant as well as the firefighter. The grievant filed a grievance alleging that the amount of his discipline exceeded that received by the firefighter. He wanted the City to “Treat Grievant the same as FD Employee that was disciplined.”

There was some confusion as to the grievance form and exactly what the grievant was asking for, but there was no question that the penalty was significant (280 hours without pay).  The city’s position was that the grievant and the firefighter had received the same amount of discipline and therefore the grievance was moot. The City had granted the grievant’s remedy.

The attorney for the FOP/OLC argued that the firefighter’s transgression was much more serious than the grievant’s, that the grievant’s suspension really amounted to 360 hours, not the 280 hours imposed upon the firefighter, and the grievant was not aware that he was doing a minor violation of the law.

The arbitrator looked the case over and concluded that the punishment meted out to grievant was the same as that given to the firefighter. Since that is all the grievant stated in his grievance, the arbitrator, who was forced to frame the question because the parties could not agree, concluded that the grievant’s prayer had been answered.

(Issued June 15, 2009. Employer-City of Huron)

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GRIEVANT GUILTY OF INSUBORDINATION; PROCEDURAL FLAW NEGATES PENALTY

The grievant was a 20 year veteran of the department. He was often reminded of reporting requirements and often had to do reports over. He was called into his sergeant’s office around lunchtime and his sergeant again reminded him of how reports were supposed to be filled out. In a pause in the conversation he said he was going to eat lunch and left the room. The sergeant told him to return to his office. The grievant continued to walk towards his lunch bag, got it, and turned around to walk back. In the meantime, a lieutenant overheard the sergeant telling the grievant to return to his office and came out of his office to see what was the matter. He then told the grievant to “get back in the sergeant’s office”. The stared at the lieutenant in a menacing way, walked into the sergeant’s office and closed the door with enough force for it to slam shut.

After the grievant eventually left the sergeant’s office, the sergeant and lieutenant discussed the grievant’s behavior and decided to recommend to the chief a 5 day suspension for insubordination. The grievant had a prior charge for failing to move his motorcycle when told to do so. The chief invited the grievant to his office for what turned out to be a pre-discipline hearing. The meeting with the chief was held on July 4. On July 23 he issued a letter of discipline calling for a 12 hour suspension. A grievance was filed soon thereafter, claiming a lack of just cause and a failure to issue a decision within one week of the pre-discipline hearing (as required in the contract).

The employer argued that the grievant was clearly guilty of insubordination (the City’s rule defined insubordination as willful disobedience…or any disrespectful…insolent…act or gesture toward a superior officer). They also argued that  failure to render a decision within a week of the pre-discipline hearing was “harmless error” and ought not set aside a legitimate cause of warranted discipline.

The attorney for the FOP/OLC conceded that the grievant could have handled the situation better, but his behavior did not rise to the level of insubordination. The grievant may have been slow, but he did comply with orders. As to the delay in the discipline decision, the contract was clear that the employer “shall” render a decision within one week. Nineteen days to make a decision could not be excused.

The arbitrator found that the grievant was guilty of insubordination. But he could not overlook the one week requirement. He therefore decided that the discipline was to stay in the grievant’s record, and admonished the grievant that continued misbehavior would be the basis for further discipline, but ordered the employer to pay him for the 12 hours he had served.

(Issued June 9, 2009. Employer- City of Hudson)

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OPERATIONAL NEEDS NEGATE CONTRACT

The contract allowed that the Chief had the exclusive authority to determine qualifications for assignments. It also provided that shift bids were to be accepted twice a year, and where two or more officers expressed the same preference for a shift, “seniority will prevail where all other variables are equal.” The “operational needs” section allowed the Chief  to change shifts assignments and days off for a bona fide operational reason. Where all other variables were equal (in the opinion of the Chief) the employee affected would be the least senior. But the chief could not be arbitrary or capricious.

Also included in the contract was a minimum manning requirement for two officers and a dispatcher on any given turn. The overtime provision stated:

“Overtime, with the exception of special assignments, shall be passed out on a rotating basis. The rotation shall begin with the oldest (most senior) officer and shall proceed through the seniority list to the youngest (least senior) officer. In the event that an officer is needed for overtime call-out and no officer volunteers, the least senior officer on the shift will be required to work the overtime…

The out of class article called for the most senior bargaining unit member on a shift to receive sergeant’s pay if no sergeant is working the shift.

In mid-contract the Chief put out a Directive which began “For the safety of this department” and spelled out that from that point on a senior employee (with 5 or more years service) would work each shift, including the requirement that a senior employee would be forced to work on a shift with two employees with less than 5 years service.

A class action grievance was filed alleging the violation of numerous sections of the agreement.

The seniority clauses contained in the agreement were standard for the industry and generally as good as those in private industry. In the words of the arbitrator:

In summary, the Arbitrator finds the Directive…is consistent with the Contract provision insofar as it limits the selection of an officer-in-charge to patrol officers having a minimum of five years seniority, permits the Chief to assign and change shifts so as to maintain as least one senior officer on each shift and authorizes the Chief to offer  senior officers with at least five years service the overtime opportunities to augment shifts when there would otherwise be no sergeant or senior officer on-duty.

The arbitrator did find a violation with senior officers being forced to work overtime, and ordered the employer to cease and desist.

(Issued June 19, 2009. Employer-City of Campbell)

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IF LANGUAGE IS AMBIGUOUS, LOOK TO BARGAINING HISTORY

In the preceding contract, officers were entitled to cash out unused holiday time in December of each year. That is, employees could take the holiday as a day off or could bank the time and take it as pay in December. The employer made a case at the bargaining table that certain administrative staff and detectives were scheduling themselves on holidays and then using the cash-out provision to their advantage. The employer insisted they were not needed to work on those holidays and the City needed some relief. The City proposed that all employees would be subject to their supervisor’s discretion as to whether they could work the holiday. The FOP/OLC agreed to creating two “floating” holidays, which were subject to a supervisor’s discretion but, they believed, the remaining ten holidays would be subject to the cash-out rule. At fact-finding the employer position and language were recommended. The parties jointly asked the fact-finder for a clarification, and his reply was that the City’s position was recommended “dealing with the two issues listed. The two floating holidays and the decision as to when holiday work was needed.”

In September of the year, the Chief sent a memo stating that all holiday time had to be scheduled and there would be no cash out of any holiday pay. A grievance was filed.

The City argued that the language could not be more clear:

At the discretion of the respective department head with consideration of workloads and department needs, an employee may work designated holidays. The employee may then elect to take the additional holiday compensation in the form of payment.

The City made the proposal at the bargaining table and prevailed at fact-finding on an issue that was very important to the City. The City did admit, however, that they never mentioned that the cash out option was eliminated for all 12 holidays, not just the two floating holidays which had been the subject of negotiations.

The FOP/OLC attorney argued, and all the Union’s witnesses testified, that their understanding was that two holidays (Veterans Day and the employees birthday) were to be taken at the discretion of the supervisor, but that the remaining ten holidays were to be remain the same. If there was confusion, the employer ought not benefit, as they knew that was the Union’s understanding and the fact-finder’s recommendation would have been rejected be the FOP/OLC if the City’s intent were known.

The arbitrator agreed that the language in the contract was ambiguous. As such, he was convinced that the FOP/OLC had the proper interpretation. If the City asked for relief for two of the twelve holidays, they could not be rewarded with relief for all twelve. The City was ordered to correct the problem the next year.

(Issued June 29, 2009. Employer-City of Eastlake)

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DEPUTY IGNORES MISSING PERSON REPORT: TERMINATION UPHELD

After talking on the phone with a family member, a woman and her husband got in an argument. The wife stalked out of the house, leaving her call phone. Her husband stated she had never exhibited that type of behavior in 45 years of marriage. After several phone calls to friends and family as to her whereabouts, the husband became alarmed and left the house at 2:00 a.m. to look for her. The husband flagged down the grievant who followed the husband to his house and did not find the missing wife. He told the husband to call the department in the morning if his wife did not return. Later that morning when the wife did not return home, the husband called the Sheriff’s Office as directed by the grievant. Another deputy took a report and checked several places where the wife liked to go. Later that afternoon the husband called and reported the wife had returned home after a night in a motel.

The second deputy checked the nightly log and located an entry where the grievant had been in the neighborhood of the couple’s home at the time the husband indicated he had flagged down the deputy. Several days later the deputy’s supervisor ordered the grievant into an investigative interview where he freely admitted he was the deputy who had made contact with the worried husband. He said he had made a mistake. He did not complete a report, contact dispatch or report the matter to the oncoming shift.

After a predisciplinary hearing the grievant was terminated for neglect of duty, insubordination, dishonesty and falsifying testimony during an investigation.

The attorney for the FOP/OLC was left little choice but to concede the facts. Instead she argued that the punishment was too severe. But the arbitrator took note of the grievant’s previous discipline record and concluded that a) the employer had just cause to discipline the grievant for his behavior on the night in question and b) in light of his discipline record the “corrective” phase of discipline had been exhausted. The termination was allowed to stand.

(Issued May 28, 2009. Employer- Erie County Sheriff)

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PROMOTIONAL PROCESS FAIR: GRIEVANCE DENIED

The employer posted a Lieutenant’s vacancy. Four sergeants applied, including the grievant. The applicant who was rated number one following the testing procedure was immediately promoted. The applicant who was rated number two was promoted several months later. The grievant, who was ranked number three, filed his grievance after the creation of the eligibility list but before the first promotion, challenging the testing procedure and alleging the employer had incorrectly applied the criteria for promotion contained in the collective bargaining agreement. The grievance was denied and preceded to arbitration.

The attorney for the FOP/OLC argued that the agreement called for seniority to be the deciding factor when test results and/or other criteria are equal. Further, the testing procedure was not a test at all, but rather an interview process. The applicants were asked 7 questions, one each from the seven interviewers, which resulted in various responses, none of which could be determined to be “right”. The interviews were highly subjective with no correct answer and could not in any way be considered a “test”. Further, the posting said a college degree was preferred, and the grievant had an associate’s degree, whereas the first individual promoted had none. All of this led the outcome to be suspicious, creating questions that the outcome might have been predetermined.

The employer responded that the collective bargaining agreement did not specify what kind of criteria or testing procedure would be used to determine the ranking of candidates. The applicants were asked the same seven questions and their responses were indicative of the experience they had gathered while employees of the sheriff’s office. The interviewees consisted of the Sheriff, the Chief Deputy, a Major and 4 Lieutenants. The scores, which were made available to the Union, were not uniform, precluding any claim that they were predetermined. And one of the successful applicants had more seniority in grade than the grievant.

The arbitrator could not discern any evidence that the procedure was anything but fair. He did not buy the idea that the procedure was not a test but an interview. The applicants were evaluated based on their responses, which gave an indication of the knowledge and experience. The process was fair, the results were not equal and the reliance on seniority was not necessary, and the grievant, although acknowledged to be a good sergeant, came in third.

(Issued June 1, 2009. Employer-Clark County Sheriff)

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REHEARING OF GRIEVANCE GETS MORE DEFINITE REMEDY

The first grievance was filed at the end of 2006 in which the grievant alleged that the employer made changes in the insurance without first consulting with the FOP/OLC.  The second grievance filed in April 2007 alleged that the employer overcharged bargaining unit members for their premium contributions when the contract clearly stated that the employees’ contribution was to be the “lesser of 25% of the total premium or the amount other participants of the County Health Insurance Plan are contributing for that particular option.” The arbitrator issued her first award in 2008. With respect to the first grievance, the arbitrator concluded the employer had failed to consult with the FOP/OLC prior to implementing the new insurance program and ordered the employer to reimburse the employees for the increased amounts they paid in 2007 that were over and above the amounts they paid in 2006.  With respect to the second grievance, the arbitrator ordered the parties to negotiate a definition of the “lesser of 25% of the total premium or the amount other participants of the County Health Insurance Plan are contributing for that particular option” and that such negotiated amount would establish the employee contribution rate for 2008.

Needless to say, the parties were unable to reach an agreement on the amount that would be the contribution rate for 2008 because there were some county employees, namely the Board of Elections and DJFS, who did not contribute anything towards their health care while; other employees contributed 20% of the total premium.  The arbitrator was asked to render a clarification and final decision.

The attorney for the FOP/OLC argued that because the contract language intended for members to pay the least amount that other county employees pay and since there were other county employees who contributed zero, the members of the bargaining unit should not have to pay anything either. The County countered that the Board of Elections was an independent board, over which the County Commissioners had no control, and they could not tell them how much they had to pay towards their health care. The employer further argued that the contract with the FOP/OLC did not contemplate that FOP members would get free health care.

But on rehearing, the arbitrator determined that’s exactly what the contract meant. If the contract stated that the bargaining unit members pay the “lesser of 25% ….or the amount other participants (pay)”, since there were other employees who paid nothing, the contract required that FOP/OLC members pay nothing also.  The arbitrator ordered the reimbursement of contributions paid by the employees.

(Issued April 20, 2009. Employer-Lawrence County Sheriff)

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EMPLOYEES ARE VICTIMS ON UNINTENDED CONSEQUENCES

When negotiating a successor agreement, the bargaining committee wanted to make the wage scale reflect the fact that more employees were making a career of their craft. The current wage grid consisted of 2 steps – the start step which covered employees with less than 3 years of service while the top step included employees with 3 years and more of service.  The bargaining committee wanted to extend the steps in the wage grid so the members would not have to wait for three years to get a step increase. After much back and forth, the contract set forth a total of six steps with automatic wage increases for each step along with the negotiated wage for each year of the contract. The Sheriff said the County Commissioners were very uneasy with granting two wage increases each year (annual increase and step increase) to those employees who were not yet topped out, so the deal was that those employees who were not yet at the top step would have to wait until their anniversary date to get their increases.

The problem was, the higher wage was payable to new hires. So it turned out that those new employees who were hired in the subsequent year and who had not been with the employer as long as some other employees were making more than the senior employees. Although such a situation had not been anticipated by the negotiators on either side, the employer was never-the-less obligated to pay according to the contract. The discrepancy would correct itself when the more senior employee reached his/her anniversary date, but it did not sit well with the employees who were making less than junior employees.

The FOP/OLC and the employer worked out a deal where the employer would contribute to a pool of money to be divided among the handful of members who were affected for the short period the discrepancy existed. The membership turned down the offer.

At arbitration, the records of the negotiations were presented to the arbitrator and the arguments were made.  The arbitrator concluded that there was insufficient evidence of a mutual mistake. The agreement represented a change in how compensation was earned and necessarily reflected a temporary aberration. The remedy to pay the affected employees the difference in wages was denied.

(Issued April 20, 2009. Employer-Miami County Sheriff)

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DIRECTIVE NOT CLEAR: NO INSUBORDINATION

The grievant had been in the employ of the department for more than 6 years and had a clean record. The grievant had always worked third shift.  The grievant was unable to work due to surgery for a non-work related injury.  The grievant exhausted all of his sick, vacation and compensatory time.  In anticipation of being released for light duty, he approached his chief and inquired if he could return on a “light duty” status. The employer is not required to provide “light duty” work. The chief did not dismiss the idea out of hand but told the grievant to come back after his appointment with his doctor.

As expected, the doctor released the grievant for light duty.  The grievant met with the Chief on Tuesday and presented a release for light duty effective the next day.  The grievant suggested he could “shadow” the officer who was performing the duties of the department clerk and who was expected to leave the department within a few weeks. The officer was scheduled to work night shift on Wednesday and Thursday.  The chief said no, he wanted the grievant to work day shift, Monday through Friday. The grievant was taken aback by the chief’s suggestion but agreed to a Monday through Friday, day shift schedule. He realized he would need to make alternate child care arrangements, although he did not mention any of this to his chief. The chief noticed by his “body language” (the chief’s words) that this new shift did not sit well with the grievant. The chief testified that he told the grievant “see you tomorrow”. The grievant denied that statement. When the grievant left, the chief, who sensed something in the grievant’s demeanor wasn’t right, wrote a memo to the grievant, with copies to supervisors, memorializing the conversation. He left the grievant’s copy in his mailbox at the department.

The following day, the grievant was taking his kids to day care when the chief called, asking where he was. The grievant said he didn’t think he was scheduled until the next Monday but would be in right away. When he got there, the chief informed the grievant that he was being charged with insubordination for failure to show up for work. He subsequently was given 3 days off, reduced to 2 days off by the Safety Director.

The FOP/OLC attorney argued that the employer failed to produce evidence that the Chief gave a clear directive, that the grievant understood the directive, that the grievant failed to perform the directive, and that the grievant understood the consequences of failing to comply. There was simply a miscommunication, for which the employer was equally responsible. It was not illogical for the grievant to think that a Monday thru Friday schedule would begin on Monday. The grievant was eager to work and had nothing to gain by purposely delaying his return to work. If the chief took time to write a memo about the conversation, he should have called the grievant or delivered the memo to the grievant to clear up any misunderstanding.

The arbitrator agreed with the FOP/OLC finding there was no insubordination. The 2 day suspension was removed.  The arbitrator allowed a written reprimand for failing to make an “affirmative effort” to clear up any misunderstanding.

(Issued March 29, 2009. Employer-City of North College Hill)

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GRIEVANT ABSOLVED. TWENTY DAY SUSPENSION LIFTED

In a case in which more is going on than meets the eye, a Lieutenant in the department was subject of an investigation in which it was alleged that he falsified a time claim for overtime in the amount of  2 1/2 hours. The charges were brought by the Safety Director, even thought Department Rules stated the Chief had sole authority to determine whether a rule had been violated. The Safety Director believed the Chief had abused his authority and brought the charges himself.

On the date in question, the grievant worked overtime on a drug investigation. He also worked on another project at the request of the Chief, but did not include this additional project in his statement of the reason for overtime. When Internal Affairs looked into the matter, it was established that it was a practice of long standing that when working overtime only the initial purpose of the overtime is listed. A report of a third party, commissioned by the department also came to the same conclusion. If you are given any additional assignment, it is not listed as the cause of the overtime. This third party and Internal Affairs recommended that no charges be brought. The Chief also recommended no charges.

The Safety Director took the case from the Chief and insisted the grievant be suspended 20 days for filing a false report. The Safety Director held a hearing, but it did not appear to the arbitrator that the grievant had been given prior notice as to one specific charge, only to the charges that had been included in the Internal Affairs report. It was the charge that was not included that called for the twenty day suspension. That was the one dealing with falsification of the claim. The arbitrator made note of this procedural flaw.

Even if a procedural flaw did not taint the case, the long standing practice of only listing the initial purpose of overtime usage when claiming overtime would exonerate the grievant. The employer could not apply a different standard without prior notice. The grievant didn’t do anything out of the ordinary. Witnesses said he worked the overtime, and he listed the reason as had been the practice. The Safety Director erred in his prosecution of the grievant.

Since the suspension had been held in abeyance pending the outcome of the arbitration, the arbitrator could not award back pay. The grievant lost 9.2 hours of accrued vacation/compensatory time, which was ordered to be returned to the grievant.

(Issued March 18, 2009. Employer-City of Canton)

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GRIEVANT WHO FAILS TO QUALIFY IS TERMINATED

The grievant had been terminated two times since hiring out in 2000. Each time he was put back to work through arbitration, the second time without back pay. With a lapse in employment of some 11 months for the second dismissal, the grievant was informed by OPOTC that certain legislative mandated courses were required before he could renew his commission. A letter from the Attorney General stated that the grievant “must cease performing the functions of a Peace Officer until he completes the 80 hour refresher course”.

The grievant failed the firearms qualification test after three attempts; therefore he could not take the final state exam. Usually one gets only two chances. Because the grievant could not meet the requirements of the position, he was terminated. He requested unpaid leave to retake the OPOTA refresher course and get another chance to pass the firearms test and be eligible to take the final state test. He could then seek reinstatement. His request was denied.

The FOP/OLC attorney raised the issue of the grievant having been denied a leave in order to retrain himself and meet the qualifications of the State. Conceding that an unqualified person could not expect to hold the job, the FOP/OLC took the tactic that the employer arbitrarily denied him the training necessary to successfully pass the test. The FOP/OLC maintained that

1)      the grievant did not have time to practice to qualify with his duty weapon

2)      he could not get access to the kind of duty weapon he would need for the test;

3)      he was the subject of disparate treatment.

The arbitrator was not sympathetic to the grievant’s argument. The grievant was given ample time to qualify-he just didn’t utilize the time. There was no record that the grievant ever asked for a weapon with which to practice. And the fact the an employee 20 years earlier had got another chance did constitute a past practice for which the employer was applying disparate treatment.

Since the grievant did not qualify for the job, he could not hold the position. The employer did not abuse its discretion when it did not award the grievant unpaid leave in order to qualify.

(Issued March 19, 2009. Employer-Greater Cleveland Regional Transit Authority)

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GRIEVANT NOT WARNED OF IMPROPER CONDUCT

The agreement contained a physical fitness article which included the ability of bargaining unit members to work out at fitness facilities located at the department. The facilities could be used

…during normal straight time working hours, provided:

1.      No officer shall request more than one (1) hour per day or three (3) hours per week.

2.      The Chief or his designee shall have discretion to grant or deny any such request, but shall not deny any request arbitrarily or unreasonably.

Employees had a practice of working out for an hour or more at the beginning (or end) of their shift, then taking a shower and proceeding with the rest of their day. The grievant never worked out more than three hours a week. The then-chief had never said anything about this practice, although he had put out a memo advising officers not to abuse the physical fitness benefit.  This memo merely reiterated the contract language.  The Safety Director received an anonymous complaint about abuse of the work-out privileges and had the then-chief investigate it. The chief soon thereafter was placed on administrative leave and eventually severed his relationship with the department. The Safety Director asked the Law Director to complete the investigation. The Law Director concluded that the Grievant, a Lieutenant, should receive a three day suspension for abusing the rules and for allowing a subordinate, a Sergeant, to do the same.

The Grievant insisted that his behavior was no different than any other member of the department. He had always believed that the one hour work-out time did not include time for a shower. The memo written by the Chief had not clarified shower time or the meaning of the three (3) hours per week workout clause.  The grievant assumed there was no issue with his interpretation. He may have gone over his hour workout a day, but never exceeded the three hour weekly maximum.

The arbitrator found an ambiguity in the interpretation of the work-out time provision. The testimony at the hearing established that other officers had violated the rule as interpreted by the City but were not disciplined. The arbitrator concluded that the grievant could not be singled out for a common misinterpretation of the rule. The discipline was set aside for want of a clear warning of unacceptable behavior.

(Issued February 28, 2009. Employer-City of Oregon)

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DEPUTY REINSTATED WITHOUT BACK PAY

When the grievant failed to show up for work, his supervisor called and was told by the grievant that he had overslept following a long night involving his girl friend and an incident with another department. While following up on this story, the supervisor learned of another incident with the same department which led to a full scale investigation led by internal affairs.

Apparently the grievant’s girlfriend had been arrested on an earlier date while in the company of the grievant. On that occasion the grievant had become abusive and uttered some profanities at the arresting officer. When posting bail, the girlfriend’s brother was also present and was also “yelling and screaming”. During the interview of the grievant, he denied yelling profanities at the arresting officer and instead placed the blame with his girlfriend’s brother. When further probing into the grievant’s behavior, it was discovered he had violated OHLEG policy by accessing information related to his girlfriend, his girl friend’s brother, and his girlfriend’s former boyfriends. There were also some allegations of property damage, assault and telephone harassment. And to top it all off, the Sheriff added a falsification of the grievant’s job application to the list of other charges. The Sheriff terminated the grievant’s employment for conduct unbecoming, dishonesty and misfeasance.

The attorney for the FOP/OLC argued that the employer could not have been harmed by the grievant’s conduct when the other department did not even contact the sheriff to complain of the incident. Further, the grievant admitted to saying to the arresting officer that the incident was “bullshit”, but denied directing any comments towards another law enforcement officer. He admitted improper use of OHLEG but everybody had done what the grievant had done. The job application charge and the innuendo over unproven criminal charges were simply piling on to justify termination. The FOP/OLC attorney asked for reinstatement with full back pay.

The arbitrator agreed that the charge involving the job application was inappropriate. The employer knew of the discrepancy and hired the grievant anyway. The unproven charges of property damage and assault were not considered as simply rumor. And significantly, the arbitrator found that the employer had not proved that the grievant yelled “at” the arresting officer. Applying the penalties that other employees had received for OHLEG violations and for the conduct of the grievant the night of the arrest, the arbitrator reinstated the grievant but did not award any back pay.

(Issued March 4, 2009. Employer-Summit County Sheriff)

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ADDITIONAL JOB DUTIES ARE INCIDENTAL

This arbitration was held to resolve 56 grievances which involved a bargaining unit of dispatchers who alleged in the grievances they were required to do Records Clerk work.

The duties of the Records Clerks are to maintain all records of the Police Department and handle citizen requests for police reports and other police related documents, including walk-in reports. The Records Clerk position is not filled on Sundays and Mondays. They are in a separate bargaining unit represented by AFSCME.

When the Records Clerks are not working and the records room is closed, Dispatchers are assigned the duties of answering questions over a lobby intercom from citizens who are in the lobby area, answering telephone lines that are forwarded from the records room, and retrieving information from LEADS and other online services. All of these duties would be performed by the Records Clerks were they on duty.

The Dispatchers were aware of a grievance settlement with AFSCME in 2004 that dealt with AFSCME allegations that the FOP/OLC was performing AFSCME (Records Clerk) work. The settlement stated that when the records clerk office was closed a sign would be posted and no one but AFSCME members would perform the work of Records Clerks.

The FOP/OLC grievances were an attempt to enforce the settlement agreement from the other side-the Dispatchers not wanting to perform AFSCME work.

The attorney for the FOP/OLC made an impassioned argument that the Dispatchers were being forced to commit an illegal act by performing work the rightfully belonged to the Records Clerks. Such a jurisdictional work dispute could hold the FOP/OLC liable for intruding on AFCME’s work. If required to perform Records Clerks work, what next-janitor’s work?

The employer countered that AFSCME was not particularly concerned about the Dispatchers doing their work. Furthermore, the FOP/OLC had made a proposal in the last contract to receive an additional $1.00 an hour to do the Records Clerk’s job in similar situations. It was shown at the bargaining table that the work done was incidental and continued to be the case. It was the right of the employer to assign duties and the duties had been the same for 12 years.

The arbitrator agreed with the employer.

(Issued February 23, 2009. Employer-City of Elyria)

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FELONY CALL HANDLED O.K.-WARRANT SEARCH NOT

Both these phone calls came on the same day. In the morning, a deputy called the grievant and asked her to check to see if a warrant was still active. She transferred the call to the Records Room but the call got dropped. He called back three minutes later. The grievant told the deputy the warrant was still active. Since the warrants are kept in the radio room there was no reason to transfer the deputy to the Records Room. For this deviation from standard operating procedure, the grievant received a reprimand.

Two hours later a call came into 911 about a woman in the trunk of a car who was bleeding and crying for help. The grievant does not work for the 911 center and knew nothing of this call. The 911 operator transferred that call to the State Highway Patrol, even though it probably should have been referred to the Sheriff’s office, where the grievant IS employed. Minutes later another call reporting the same vehicle came in to the grievant’s station but did not mention anyone being in the trunk. The grievant, knowing nothing of the first call, listened to the caller describe the vehicle, the license plate, and the color of the vehicle. The caller then said the vehicle had just gone in the ditch. The grievant, thinking an accident had just occurred, told the caller she was transferring him to the Highway Patrol. The caller said O.K. For a call reporting an accident, such procedure was appropriate.

The problem for the grievant was that the woman in the trunk was the victim of a very serious crime. The press wanted to know why the response time was so slow. The Sheriff suspended the grievant for five days for her handling of the call.

The attorney for the FOP/OLC provided witnesses who testified that the grievant handled the call properly and the witnesses would have handled them the same way. On hearing a tape of the unidentified caller, he never mentioned there was a woman in the trunk and went about describing the vehicle and license plate. His demeanor was described “as if he were ordering a pizza”. There was no reason for the grievant to believe there was anything out of the ordinary from a report of an accident. The arbitrator found that the employer had not met its burden of proof. He, too, listened to the tape and concluded that the grievant had handled properly.

The arbitrator allowed the reprimand to stand, but ordered the grievant be made whole for the suspension time.

(Issued February 16, 2009. Employer-Lorain County Sheriff)

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CITY MUST PAY OVERTIME FOR TRAINING

When the City bought Tasers, training was necessary before their use. The City posted a notice that training was being made available in four separate dates. The memo stated “This is a school day. No O.T. (unless Chief and your supervisor agree to use it to cover a shift to get officers into this class). The memo made no specific provisions for how officers working the midnight shift were to secure training. The two grievants participated in training on their off days. They worked midnights and had worked their normal 40 hour week. They submitted claims for 8 hours overtime and those claims were denied. The grievances and subsequent arbitration followed.

The cited the overtime section of the contract:

All employees, for all work actually performed in excess of the regular scheduled shift, when approved of by the Chief, shall be compensated at the rate of one and one-half times the employee’s forty hour rate and for all time worked in any twenty-four hour period or any hours worked over forty in a regular work period.

The City objected vehemently to the grievance. No other employees had claimed overtime. They had no idea the grievant’s were going to make such a claim. Had they known, the City would have made other arrangements. The memo stated that no overtime would be paid unless approved, and the Chief didn’t approve.

The attorney for the FOP/OLC argued that the City made no provisions for officers on third shift to take the training. The training was mandatory and all other officers were able to take the training on City time. The grievants could not be expected to donate their time to the City. Further, the Fair Labor Standards Act (via the contract) required the payment of overtime after 40 hours. The grievant’s supervisor knew the grievants intended to take the training when they did. It was no secret. The Chief ‘s decision (to grant overtime) could not override Federal Law.

The arbitrator agreed with the FOP/OLC. The employer made no provisions for the midnight shift to receive training that did not involve their working the extra hours. If the City’s position were upheld, they would be receiving 8 hours of mandatory work for free. It was not a secret that the grievants would be receiving training when they did. Since that amounted to more than a forty hour work week, the employer was compelled to pay the overtime.

(Issued February 23, 2009. Employer-City of Bay Village)

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DEPUTY REINSTATED

After attending a birthday party, the grievant and some friends went to a neighborhood bar to finish out the evening. There were some words exchanged between the grievant and the barmaid, which resulted in another bar patron, whom the grievant knew, approaching the grievant in a menacing manner. The grievant punched the other patron the result being the owner of the bar shut the place down. As he was leaving the establishment, the grievant was again approached by the same person and again the grievant punched him. The grievant was not hurt, but the other patron filed a complaint against the grievant. The grievant entered into a plea agreement which called for participation in an anger management after which the charges would be dropped.

Following some procedural problems, the employer terminated the grievant for gross misconduct. At the hearing, the employer’s representative claimed there were aggravating factors involved in the decision to terminate the grievant, including three occasions where the grievant had had run-ins with other police agencies. The employer also alleged that the grievant had lied on his employment application about some misdemeanor charges. The employer further alleged that the grievant had a history of violence including a military release due to a personality disorder.

The attorney for the FOP/OLC dealt with the allegations one at a time. The employer’s representative had not made any of the additional allegations known at the time of the pre-disciplinary hearing. Had he done so, it would have been established that the run-ins with the other agencies were merely hearsay. The grievant had not lied on his application because a reviewing Captain conducting the background check found nothing amiss in the application. Further, his military release was common practice for enlisted personal who needed released, in the grievant’s case, to attend to his dying father.

In all, the arbitrator dismissed all charges except the one the grievant had actually been involved in. There was no getting around his being involved in a fight at a bar. But the employer failed to prove the grievant was intoxicated (none of the witnesses said he was), or that he provoked the altercation with the other bar patron. The other guy was much bigger than the grievant and the grievant took pre-emptive action. There was no reason to indicate the grievant had an anger problem. None-the-less, he was involved in a fight which he could have avoided. He was returned to his job without back pay.

(Issued February 17, 2009. Employer-Belmont County Sheriff)

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EMPLOYER CANNOT ESTABLISH PREMIUM COST FOR INSURANCE

When the employer renegotiated their health insurance coverage, it included the FOP/OLC as well other employees in the presentations by the various insurance carriers. The FOP/OLC voted to stay with a plan similar to the one they had, and with a higher premium, but the employer chose the plan that had a lower premium increase. But the employer then added a 25% surcharge to “encourage employees to forego the ‘buy-up’ plan in favor of the High Deductable plan.” For those employees who chose this plan, their premium went from 20% of the total premium to 45%. A class action grievance was filed protesting the premium increase.

The contract in effect stated that “The Employer shall pay 80% and the employee shall pay 20% of the applicable monthly premium for the hospitalization insurance”.

The employer argued that the surcharge of 25% was an incentive for employees to utilize the more efficient plan. The employer had paid more than 80% for some plans in the past and were entitled to pay less (collect more) in order to steer employees towards the less expensive plan. The employer further argued that the “applicable monthly premium” was set by the employer and could be adjusted unilaterally.

The attorney for the FOP/OLC argued that the premium was set by the insurance carrier and not the employer. If the employer’s position were adopted, employers could add a 100% penalty tax on to the premium and force employees to pay 100% of the cost and employers would pay nothing. The employer, continued the FOP/OLC attorney, is not free to set the premium at any level it wishes. It is contractually bound to pay 80% of the premium and not what it pleases.

The arbitrator agreed with the FOP/OLC. The premium for insurance is set by the carrier, not the employer. Whereas the arbitrator was sympathetic with the employer’s financial plight, the employer was bound by the language of the contract, which required the employer to pay 80% of the premium charged by the insurer, not some other figure. Grievants were ordered to be given back the additional sums they had paid for insurance.

(Issued February 5, 2009. Employer-Miami Township)

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GRIEVANT NOT ENTITLED TO SICK LEAVE CONVERSION

The grievant, age 37, had been employed by the department for 15 years. After consulting with the Police and Fire Pension fund, he decided to quit the department with a “service commuted retirement”. A week before his intended severance date, he spoke with the City Finance Director requesting a payout of a portion of his unused sick leave. He was told at that time that his separation from employment would not be considered a retirement. He filed a grievance and severed the employment relation.

The first issue at arbitration was arbitrability. The employer argued that the grievance was premature in that it was filed before the grievant’s separation date. The arbitrator found the grievance arbitrable in that it was filed upon being told that he would not be paid.

The arbitrator then wrestled with the proper interpretation of the applicable contract language. The contract read

At the time of retirement from active service with the city, an employee with ten or more years of service with the city…is to be paid in cash for the value of his/her accrued but unused sick leave in accordance with the following schedule..

The language in the contract had not changed since the very first contract in 1984. Furthermore, the language was a mirror of language in the Ohio Revised Code. The arbitrator, not having a ready interpretation of the contract, went to an interpretation of the Ohio Supreme Court to lend guidance to the parties to the contract. In a case out of Montgomery County known as the Davenport Decision, the court wrote that the plaintiff had not met the requirements of a retirement in that she had separated from employment but had not retired. In that case, she had the required number of years of service but did not have the necessary age to retire, thus she was not eligible to convert her sick leave because she did “retire from active service.” The arbitrator followed the court’s precedence, finding that the grievant did not retire in December 2006 because he was not 48 years of age and 25 years had not elapsed from the date of his full-time hire.  The arbitrator denied the grievance.

(Issued February 5, 2009. Employer- City of Sandusky)

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DISPATCHER ENTITLED TO ONLY 50% OF ACCUMULATED SICK LEAVE

The City was investigating the possibility of eliminating their dispatching functions and having them performed by another political subdivision. In anticipation of the event, the contract provided for the rights of existing employees and the benefits they could anticipate. Among other things, Section 38.01 of the contract called for a cash-in of up to 960 hours of accumulated sick leave “similar to that accorded to other (dispatchers) pursuant to Section 10.09 of this Agreement”  Section 10.09 reads the same as 38.01 except for the reference to Section 10.09. There is a distinction in that same Section between sick leave earned before 1984, which could be cashed in at 100%, and sick leave earned after that date, which called for a 50% cash-in rate. All of the grievant’s sick leave was earned after 1984.

The grievant took a job with the new employer. She asked that 40 hours of sick leave be transferred to the new employer and the rest paid out in cash. When she was paid only at the rate of 50%, she filed a grievance.

The attorney for the FOP/OLC argued that the employer had proposed the contract language during negotiations and never stated that the cash-in was less than 100%. They could have stated it was at the 50% rate but they didn’t. The FOP/OLC was not wrong in assuming the cash-in was at 100%. Only now was the employer saying the rate was only 50%.

The employer argued that the distinction between pre and post 1984 sick leave, as defined in the contract, was controlling. Since all of the grievant’s sick leave was accumulated after 1984, she received 50% of its value. The employer had been consistent in its application of this section with all city employees. To treat the grievant differently would be to create another class of employee, a notion which bordered on the absurd. The negotiations preceding the abolition of the dispatcher positions were designed to treat the dispatchers fairly, but such an interpretation as that proposed by the FOP/OLC  would put the grievant at an advantage over all other employees.

The arbitrator agreed with the employer. The record showed that the employer had never paid another employee as the grievant claimed, and no other employee had filed a claim.  The employer didn’t need to explain its proposed contract language. The parties each should have understood it.

(Issued January 25, 2009. Employer-City of Tallmadge)

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PUNISHMENT EXCESSIVE, REDUCED TO WRITTEN WARNING

During a routine inspection of jail keys issued to employees, the grievant was unable to produce a key to one of her units. After a short time, however, she found the key in her sweater pocket. The grievant received a written warning for failure to control her keys. The following day, the Corrections Chief was making rounds and met the grievant and two other employees and asked how they were doing. The two other employees responded “fine” but the grievant didn’t respond. When the grievant was asked again, her response was what the employer characterized as disrespectful. She was given a five day suspension for her behavior, which was the subject of the arbitration.

The employer’s rules classify infractions into “major” and “minor” offences, and provides a schedule of penalties for each infraction. Disrespect is a minor infraction which calls for anywhere from a written warning to a five day suspension. The rule goes on to state that second or third offences must result from violations of the same rule as the employee has been previously disciplined.

The employer argued that he considered prior discipline, the written warning received for the key violation, in assessing the penalty to the grievant, even though it was not a violation of the same rule. Inasmuch as the employer has some leeway, he chose to exercise it. Further, he argued, the disrespect occurred in front of two other employees, which further undermined the employer’s control.

The FOP/OLC attorney argued that the grievant, who was on good terms with the Corrections Chief, was upset about  the discipline of the day prior, not disrespectful. Because of her relationship with the Chief, who generally welcomed such discussion, she felt she could express her disappointment. Had the other employees not been present, the Chief would have had such a discussion. Since the offence was the first violation of the “disrespect” rule, and the grievant is a 16 year veteran of the department, the five day suspension was excessive.

The arbitrator agreed with the FOP/OLC. As a first offence, the grievant should have been given prior warning that the behavior demonstrated to the Chief was unacceptable. Under other circumstances, the grievant would have had a discussion with the Chief and no discipline imposed. The employer was wrong to rely on the maximum penalty in dealing with the grievant.

(Issued January 16, 2009. Employer- Summit County Sheriff)

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CONTRACT CHANGE NOT ENOUGH TO WIN GRIEVANCE

For the contract in effect between January 2004 and December 2006, each employee was credited with 10 holidays and 3 personal days at the beginning of each year. They contract stated:

In no case will this personal leave be carried over from one year to the next. The personal leave will expire at 11:59 on December 31^st of each year.

The old agreement continued:

Eligible employees must take at least 6 days of personal leave before July 1^st of any given year. The remaining 7 personal days must be taken between July 2^nd and December 31^st of any given year. Those employees that have not taken or made application for the use of personal days during the time frames listed will be assigned to take the leave be their supervisor.

The successor agreement eliminated the no carryover language and eliminated the partitioned allowance. The new agreement permitted accumulation of holiday/personal time and allowed its use any time during the year.

The grievant, an employee since 1996, took employment with another agency. His severance included unused vacation time and compensatory time, but did not include any holiday/personal time. He filed a grievance contesting the employer’s decision.

The employer argued that the contractual changes were limited to what was stated, and nowhere did the change indicate the ability to cash the time in at severance. Other portions of the contract stated what conditions had to be met for cash-in of vacation and sick leave, but the personal/holiday provision did not.

The FOP/OLC attorney argued, and the FOP/OLC negotiators testified, that the Union explained at the bargaining table that the change meant the employees would be able to cash in the unused time upon separation. Further, removing the prohibition against carryovers implied that the accumulated leave became the employee’s property, to be used and cashed in as other property upon separation.

The arbitrator sided with the employer. Other types of leave in the contract provided a cash-in formula. If the parties had meant to include holiday/personal leave as part of a severance package, they would have said so. Since they didn’t, and state law did not provide any cash-in, the employer was correct in not providing the grievant with his holiday/personal time.

(Issued January 29, 2009. Employer-Clark County Sheriff)

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EMPLOYER MUST BE UNIFORM AND CONSISTENT WITH DISCIPLINE

Two dispatchers were disciplined for the same activity on about the same dates and were subject to the same arbitration hearing before the same arbitrator.

It is undisputed that both grievants “accessed MySpace and blogged on the county computer during her work shift assignments…” They were charged with “unauthorized use of employer property or equipment” and violating the county’s “Use of Employer Computers and the Internet” sections in the employee manual. The grievants did not contest the facts at hearing. The one grievant, who had a written reprimand in her file, received a one day suspension without pay and a one day working suspension with pay. The other grievant, who had only a verbal reprimand in her record, received a one day suspension without pay. It was the penalty portion of the discipline which was the subject of the hearing.

The employer argued that there was a rule violation and that they were entitled to enforce their rules through discipline. The FOP/OLC argued that employees routinely accessed the internet for personal use during slow times and nothing was said about it. The employer could not claim that they were unaware of this activity because the employees did not try to hide it.  Besides, the supervisors were engaged in the same activity. The FOP/OLC argued that everybody did it and management, even if they did not condone it, at least tolerated it. To now pick two employees and decide to enforce a rule that had never been enforced before was disparate treatment.

The arbitrator agreed with the FOP/OLC and, while he determined that the discipline was excessive, he noted that a rule had been violated and the employer was entitled to correct the behavior. He reduced the one grievant’s discipline to a one day suspension without pay and the other grievant’s discipline to a written reprimand.

(Issued January 5, 2009. Employer- Miami County Commissioners)

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DEPUTIES ENTITLED TO WORK COURTHOUSE

Deputies had always provided security to the courthouse.  Although the county had owned walk-through metal detectors and x-ray equipment for several years, it had not put them into operation at the courthouse. When the decision was made to use the machines, the Sheriff met with the FOP/OLC to discuss hiring part-time deputies to operate this equipment. The FOP/OLC was unwilling to agree to such an arrangement.

With the FOP/OLC’s rejection of the employer’s proposal, the County Commissioners authorized the Administrative Judge to hire 4 civilians to operate the equipment. The FOP/OLC sought an injunction to prevent the hiring of the civilian employees, as well as filing the grievance which was the subject of the instant arbitration. The court failed to grant the injunction.

At arbitration, the employer argued the grievance was not arbitrable because it was the Judge, not the employer, who hired the civilian employees and that the Judge was not a party to the contract between the FOP/OLC and the Sheriff. The section of the contract relied upon by the FOP/OLC stated that:

the Employer and the County agree…not to contract with any agency or persons for the performance of any duties and/or responsibilities customarily and currently being performed by employees of the bargaining unit.

 The employer also argued that none of the duties performed by the civilian employees were ever performed by bargaining unit members; rather, they were new duties only recently assigned. So not only were the civilians employees of the court and not the Sheriff, they were performing duties which were not “customarily and currently being performed by employees of the bargaining unit”.

The attorney for the FOP/OLC pointed out that the contract stated “the Employer AND THE COUNTY agree” not to subcontract, not just the Employer. If the parties had not meant to include the County, they were free to do so. As it is, the bar on contracting out applied to the County and its agents, as the Commissioners had final approval. As to the work performed, the FOP/OLC’s attorney cited numerous arbitration awards which stated that the emphasis was on the purpose of the work, not the equipment used to perform it.  The security of the courthouse had always been provided by deputies.

The arbitrator agreed with the FOP/OLC. The County obligated itself not to subcontract. The Judge is an official of the County. When the Employer and the County agreed not to contract out except in certain enumerated circumstances, and the subject of the grievance did not fall within one of those circumstances, they were barred by contract from contracting out the security work.

(Issued December 16,  2008. Employer-Erie County Sheriff)

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WHISTLE BLOWER GETS JOB BACK

Soon after the beginning of his shift, the grievant noticed numerous marks and bruises on a prisoner who was being held in the intox area of the jail. He instructed a subordinate to take photographs of the prisoner in order to document his condition. The nurse on duty was notified of the prisoner’s condition after he was showered and cleaned up.

The grievant tried to give the Sheriff, who was a long time friend and co-worker, the pictures, but the Sheriff refused to accept them with the statement “get them out of here. You’re going to get me sued” (a response the Sheriff couldn’t recall making). The grievant ended up giving the pictures to a management consultant who was investigating the incident under the mistaken impression the consultant was a member of the FBI. In an out of court settlement, the prisoner was given several hundred thousand dollars due to  his treatment in the jail.

Five months later the employer held a pre-discipline hearing and terminated the grievant a month after that. He was found to have violated 9 rules of the department He immediately filed a grievance to protest the termination.

The employer tried to make the case that the grievant was a paranoid conspiracy theorist who had exposed the department to extensive liability. The arbitrator, however, was more interested in the arguments of the attorney for the FOP/OLC and the testimony of the grievant. The grievant was the only employee of the department who protected the rights of the prisoner. Though many employees were aware of the prisoner’s mistreatment, it was the grievant who documented the injuries and called them to the attention of the nurse. Though employer witnesses claimed they weren’t aware of the prisoner’s condition, the FOP/OLC attorney and the arbitrator found that hard to believe. The grievant tried to give his findings to the Sheriff but the Sheriff refused to accept them (even though the grievant was charged with withholding the evidence). All in all, the arbitrator found the grievant to be the only member of the department who acted in a responsible manner.

The grievant was found to have not followed the reporting procedures to a T and given a 7 day suspension, but was ordered back to work all but 7 days back pay.

(Issued December 23, 2008. Employer-Belmont County Sheriff)

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GRIEVANT WRONGLY DENIED INJURY LEAVE

The grievant reinjured his knee after initially injuring it in the line of duty. He was granted a time-loss claim by the Bureau of Workers Compensation. He was authorized to return to work by his physician with the proviso that he was to receive therapy for his knee. He was placed on light duty. While on light duty he continued to receive therapy three times a week. Most of the therapy dates were on paid time, but a few of them were not. The contract stated the “he shall be eligible for paid leave not to exceed forty-five days from the injury…” After the filing of his grievance the grievant eventually had surgery, but he claimed he should have been paid injury leave for all the time he was receiving therapy. In all, 48 hours was charged to his sick leave balance instead of coming out of his injury leave.

The employer argued that on the days he was required to use his sick leave the grievant could have returned to his light duty assignment. On those days the therapy appointment was early enough in the day to allow his return to work. Because he didn’t, he was charged sick leave. The employer didn’t deny that the grievant didn’t properly request injury leave, or that he didn’t report for duty every morning before reporting for therapy. They simply thought he should have returned to work on therapy days.

The grievant testified that his actual therapy would last approximately 2 to 3 hours, ending about 12 or 1PM.  However, the therapy caused his knee to swell up and he had to take pain medication and keep ice on his knee until the swelling went down. He admitted he went home after the therapy session, but claimed he was unfit to perform any work following the therapy. His testimony was unrefuted and credible.

The arbitrator agreed with the FOP/OLC attorney that the grievant was improperly denied injury leave on those days he attended therapy and could not return to work. The arbitrator ordered the return of 48 hours of sick leave to the grievant’s account.

(Issued December 31, 2008. Employer- City of Eastlake)

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DISPATCHERS NOT REQUIRED TO SEARCH PRISONERS

For many years the dispatchers of the department would search female prisoners if a female officer were not available to perform the search. When the dispatchers were moved from the police station to a fire station, the dispatchers were not so willing to perform the searches. They filed a grievance challenging the requirement that they had to search the prisoners.

The relevant contract language stated that:

…Except in emergency circumstances, Bargaining Unit Members will not be required to search, handle, shower, or contact prisoners or prisoner items…Emergency circumstances means a period of time in which a female police officer or a female supervisor is not working on the shift in which the prisoner contact is required, and said contact with the prisoner cannot wait until such time as a female officer or supervisor is able to perform the function.

When the department started to have the dispatchers perform the searches, there was only one female police officer. The department now employed 4 women. When the dispatching function moved to the fire station and was administratively put under a different department (informational services), the dispatchers no longer felt safe doing police work. Further, the searches were conducted when a female police officer was on duty but not at the fire station. Although a male officer stood outside the door of the woman’s restroom while the search was conducted, the dispatchers complained that they had received no training on searches and were vulnerable to unruly and psychotic prisoners.

The arbitrator felt little need to assess the safety of the situation. The contract stated that dispatchers were not required to perform searches when a female officer is working AND when the search cannot wait until a female officer can be called in duty. Clearly the dispatchers should not be used when a female is on shift, and if not on shift, a female officer should be called. The arbitrator could not determine who was responsible for deciding when an officer was to be called out, only that one should. The grievance was sustained.

(Issued December 24,  2008. Employer-City of Cuyahoga Falls)

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OFFICER THREATENS SUPERVISOR; DISMISSAL WARRANTED

When the grievant called his ailing wife at home, the only response he heard from his wife was “help, help”. He had permission to go home to check on her condition. Upon arriving at home, he found his wife in the yard, unconscious, and there was evidence of a sexual assault. He called 911. The emergency squad was unable to find his home, so he called the officer in charge so he could direct the emergency squad. When the squad arrived the grievant’s wife was transported to the hospital, with the grievant following in his vehicle. He had left the property in the hands of another jurisdiction, but when he called home to check how things were going, he was told that a lieutenant from his department was doing the investigation. He then called his department’s dispatcher and said:

Hey, you tell (the lieutenant) to get the f**k out of my house or I’m gonna break both his f**kin’ legs….I don’t want (the lieutenant) out there, I don’t want (him) on my f**king property. I’m gonna break both his f**kin’ legs.

The department investigated the conduct of the grievant, and eventually terminated him for, among other charges, insubordination, conduct unbecoming, harassment and workplace violence. He filed a grievance.

The FOP/OLC attorney argued 1) the threats occurred in only one phone call; 2) the grievant was upset at the time of the phone call due to an alleged assault upon his wife and 3) no consideration was given to his work record of 12 ½ years.

The tape of the threat was adequate evidence of the threat being made. The grievant admitted as such. But the arbitrator was troubled by the grievant’s apparent composure during the entire ordeal. He calmly gave instruction to the officer in charge, made calm calls to 911, and very calmly and deliberately threatened the lieutenant not once but twice, and the lieutenant was not posing any threat to the grievant or his property.  The arbitrator did not feel “comfortable” substituting his judgment for that of the employer, and the grievance was denied.

(Issued September 25, 2008. Employer-Ohio University Police Department)

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TERMINATION UPHELD FOR OFFICER’S MISBEHAVIOR

While making a traffic stop for OMVI, the grievant was alleged to have made remarks and engaged in conduct which prompted the filing of a complaint by the cited woman. While investigating that complaint, two additional complaints were filed, both alleging similar conduct.

In all three complaints there existed a similar pattern of events. The grievant would determine if the complainant had a husband or a boyfriend and would complement the complainant on her physical appearance. Then the grievant would take the complainant home after processing at the police department and would engage in inappropriate conversation with the complainant while in his cruiser. He would legally attempt to enter the complainant’s residence upon arrival. He would invite the women to his vacation home and ask them out to breakfast. He would start calling complaints multiple times and alarmed the complainants. One complainant had to urinate while in the grievant’s custody. He instructed her to lower her pants and go in a parking lot.

The investigation took over two months and resulted in terminating the grievant. The attorney for the FOP/OLC argued that the witnesses (the complainants) were not available at the arbitration and therefore the grievant was being denied the fundamental right to confront his accusers. The FOP/OLC attorney stated that the employer had not proved his case.

The arbitrator believed otherwise. The two month investigation was exhaustive. Transcripts were made of the interviews. None of the complainants knew each other nor knew the grievant. While the grievant denied he said or did the most damaging things in the accusations, the arbitrator concluded that the witnesses, not the grievant, were telling the truth. The termination was upheld.

(Issued September 24, 2008. Employer-Miami Township)

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CONTRACT CLEAR; PAST PRACTICE AMBIGUOUS

Patrol Officers work 12-hour shifts while officers working specialized assignments work 8-hour shifts.  The agreement calls for 10 paid holidays each year. To clarify, the contract includes:

All holidays shall be observed on the actual dates listed…All holidays are 12 hours in length. An employee who works a shift where the scheduled hours are on the holiday, shall be entitled to holiday compensation for hours worked on the holiday.

Employees not scheduled to work on a holiday…shall receive, as “holiday pay”, their normal hourly rate times the number of hours equal to their normal work day….

Employees required to work on a holiday …shall receive holiday pay as defined above, and shall additionally be paid their normal hourly rate for all hours      actually worked on the holiday.

There was also a section of the agreement which required a seven day notice for non-emergency changes in the schedule.

The officers working specialized assignments filed a grievance stating that they received an e-mail stating they were ordered NOT to work New Years Day 2008. The grievance requested that all officers be paid according to the contract, with interest.

Witnesses for the FOP/OLC indicated that specialized assignment officers were always allowed to work 12 hours on a holiday that fell on their normal work day and receive 12 hours holiday pay. Earlier in the year, the employer and union met in an attempt to ward off a grievance when an officer worked 8 hours on a holiday, put in for 12 hours holiday pay and was only paid 8 hours holiday pay.  The employer agreed that specialized assignment officers would be paid for 12 hours holiday pay regardless of the number of hours they worked on the holiday.

At the arbitration, the employer argued that this understanding was only a stop-gap measure pending the outcome of current negotiations. When the Chief showed the settlement language to the Board of Trustees with the intent of incorporating it in the new agreement, the Trustees said no. The contract was not changed. The employer argued that there was no established past practice that required the employer to pay the grievants what they asked. The contract was clear. If the contract had been changed along the lines of the grievance settlement that would have been a different story, but the contract was not changed and the grievants were properly paid pursuant to the express terms of the contract. They were only entitled to holiday pay for the number of hours equal to their normal work day.

The FOP/OLC attorney argued that a binding past practice existed which was reduced to writing in the clarification set forth in the settlement agreement earlier in the year, but the arbitrator did not feel a need to consider a past practice because the contract was clear. The arbitrator did, however, allow the grievance to the extent that 7 days notice was not given for the schedule change for New Years Day.

(Issued November 20, 2008. Employer-Miami Township)

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GRIEVANT FOUND NOT GUILTY; TERMINATION SET ASIDE

The grievant came to a 4-way stop, looked both ways, then proceeded through the intersection. After going a short distance, the grievant heard a “thud”, thought it was road debris, and proceeded through the intersection and stopped in the other side. He got out and saw a bicycle lodged behind his front tire. He looked around and saw someone who appeared to be the rider. The rider was back in the intersection and appeared to be unhurt. The grievant called for another officer to investigate the incident, but removed the bicycle from under his cruiser. The rider was eventually taken to the hospital for cuts and bruises.

The officer investigating the accident concluded that the grievant was not at fault, but the Chief, upon reviewing the report, ordered the investigator to change the report to find the grievant at fault and he was cited for “Improper Starting”. A court date was set for three months later.

The employer, however, terminated the grievant 10 days after the incident for violating policy and traffic laws. After the grievant was terminated, he appeared in Municipal Court and was found not guilty of all charges related to the accident. The matter ended up in arbitration.

The employer argued that the grievant was an inattentive employee. He had three “active” disciplinary actions in his file, the most severe of which was a one day suspension for excessive cell phone use during a recent divorce. The employer had sent the grievant to counseling and had referred him to a psychologist, all to correct what they believed was inattentive behavior. They believed the grievant to be guilty of conduct not in the employer’s “best interest”.

The attorney for the FOP/OLC argued that all consideration aside, the employer terminated the grievant for a traffic incident for which the grievant had been found not guilty. The other party to the accident gave illogical explanations for what transpired and could not be believed. The Judge had thought so too. To terminate the grievant for an incident for which he was not responsible failed to meet the burden of proving just cause.

The arbitrator agreed. The employer’s argument of “negligent retention” notwithstanding, the grievant could not be terminated for an incident which a court of competent jurisdiction found the grievant was not responsible. The grievant was ordered reinstated with full back pay and benefits.

(Issued December 2, 2008. Employer-City of Piqua)

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MUST NOTIFY CHIEF OF OUTSIDE EMPLOYMENT: PENALTIES UPHELD

The policy stated:

Sworn officers and other employees of (the department) may engage in non-law enforcement off-duty employment with permission of the Chief of Police. (Some employment) which generate a high potential for conflict of interest and/or reflect an abuse of official position, which could give rise to illegal or official unethical practices…

A request must be made in writing to the Chief of Police to obtain permission to engage in outside employment…

A detective asked for time off to attend a meeting of the American Society for Industrial Security to further his knowledge of private security for a business he wanted to get into for his retirement. His supervisor expressed some concern about the enterprise and discussed it with another supervisor, who informed him that the detective and two other officers of the department had a website advertising security services. With that information, the department looked into it further and discovered that the detective, two officers and an officer’s brother had incorporated with the Secretary of State to run a business which included services which the department may have considered to be a conflict of interest. One of the grievants was listed as the managing partner along with his home address and phone number. No one had made a written request to engage in outside employment.

When interviewed during the investigation, the grievants stated that they were under the impression that the detective had talked with the Chief and the Chief had said he “didn’t see any problem with it (the business)”.  However, the detective recanted that the Chief had given consent. The detective decided to retire, which left the two grievants.

The arbitrator found the evidence against the grievants to be overwhelming. The one grievant, who was appealing a one day suspension, had his grievance denied. The other grievant was terminated for violating a last chance agreement which was a condition of reinstatement awarded by the same arbitrator after a prior termination. The last chance agreement gave the employer discretion to terminate the grievant for any violation of rule, regulation, policy or procedure.  While the last chance agreement allowed for the arbitration of a termination issued during the last chance agreement, the arbitrator was limited in reinstating the grievant only if he found that no violation occurred.  In the event it was found a violation did occur, the arbitrator was precluded from modifying the termination.  The arbitrator found that the grievant had violated the policy and therefore the employer had the sole discretion under the last chance agreement to terminate him.  His grievance was denied.

(Issued December 8, 2008. Employer-Springfield Township)

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DISMISSED DEPUTY REINSTATED WITH FULL BACK

The grievant had been an employee of the department for 9 years and had no discipline. On the night of the incident, he had a cadet accompanying him. When a call came in from another jurisdiction that they were pursuing a vehicle near the grievant’s substation, the grievant entered the highway as the vehicle sped by. The grievant had been reminded of the no pursuit rule when a civilian was in his vehicle by his supervisor before he pulled in behind the speeding vehicle. He followed the vehicle, at times going 100 MPH, and turning his light and siren on and off. At all times he was in contact with his supervisor, who asked him to get the license of the vehicle. When told again he was not to pursue the vehicle, the grievant responded that he was not pursuing-only following.

When the pursued vehicle turned into a field, the driver lost control and the vehicle came to a stop. The grievant got out of his cruiser as the driver of the other vehicle tried to rock the vehicle free. The grievant ordered the driver to stop but he failed to do so. The grievant noticed there were passengers in the vehicle and a woman who had exited the vehicle and was somewhere behind it. When the driver ignored the grievant’s continued order to stop trying to free the vehicle, the grievant shot the front tire. Two more rounds were accidently discharged as the grievant stumbled.

The grievant was charged with insubordination for pursuing the vehicle with a civilian in the cruiser, with improperly discharging his weapon, with accidently discharging his weapon and with making false statements concerning the whole incident. Following a pre-disciplinary hearing, the grievant was dismissed.

The employer claimed that the grievant was in actual pursuit but lied about it in the investigation. They claimed that the use of force was permitted only if the deputy feared for his life or the life of others, which could not have been the case. Even if none of these violations was cause for termination, the totality of the of the offences warranted dismissal.

The attorney for the FOP/OLC argued that the grievant was following the vehicle, not pursuing it. His sergeant asked the grievant to get the vehicle’s license number, which meant getting close enough to read it. The sergeant knew what the grievant was doing and at what speeds, but at no time did he tell him to terminate the action. After the vehicle was stopped in the field, the driver failed to follow commands, which left the grievant questioning for fear of his life or the life of the woman who got out of the vehicle. And the FOP/OLC attorney explained that at no time in his accounting of the incident did the grievant try to deceive. His story only differed by its interpretation.

The arbitrator was bothered by the employer’s failure to stop the grievant from following the vehicle when the employer knew what was going on. Failure to tell him to stop was acquiescence, which could not be found to be insubordination. As to discharging his weapon, the grievant had every reason to be cautious, having followed the vehicle for some time with no response, having ordered the driver to cease trying to free the vehicle, and the element of an unknown person outside the vehicle. The grievant’s response was appropriate under the circumstances, and could not be second guessed. With all of the elements of the employer’s case refuted, the grievant was reinstated with full back pay and benefits.

(Issued December1, 2008. Employer-Summit County Sheriff)

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REASSIGNMENT NOT DISCIPLINE

When a road sergeant was made interim Chief, a vacancy was created for the road sergeant position. The grievant, who was a sergeant in support services, was reassigned to the vacant road sergeant position. She filed a grievance alleging that the transfer was disciplinary in nature and, as such, a violation of the collective bargaining agreement.

The relevant section of the agreement reads:

When a vacancy occurs to which no employee requests assignment, the Chief of Police shall assign a command officer with the least seniority in the affected rank to the position unless the Chief of Police certifies the vacancy as a “special need” situation requiring the assignment of a command officer with specific job skills irrespective of seniority.  A ‘special need” situation shall not be created or an assignment made as a substitute for discipline.

The attorney for the FOP/OLC argued that the grievant was the subject of an internal investigation into possible misconduct, and therefore the reassignment was a substitute for discipline which was in violation of the agreement. The employer knew that the grievant, a single mother, would suffer with a change in days-off. Further, in the past, when a vacancy occurred, a patrolman was assigned as an acting sergeant or the remaining sergeants filled the vacancy with overtime.

The employer was able to convince the arbitrator that discipline was not the reason for the grievant’s reassignment (the grievant was given a 2 day suspension several months after the transfer). The employer had offered the transfer to the two senior sergeants in the support services division who declined the transfer. By contract, the grievant, the junior sergeant, could be forced. Any other arrangement would have cost the employer additional expense in overtime. The two remaining sergeants in support services could take on the duties performed by the grievant. She was allowed to bid her shift and was able to retain the day shift, but her off days were Monday and Tuesday instead of Saturday and Sunday.

The arbitrator concluded that the transfer was legal except if done for disciplinary purposes and the FOP/OLC failed to prove it was done for disciplinary reasons.  The reassignment was allowed to stand.

(Issued November 29, 2008. Employer-City of Oregon)

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GRIEVANT NOT SERIOUSLY INSUBORDINATE

Grievant was a thirteen year veteran of the department. For most of that time he was assigned to a multi-county drug taskforce. He had been assigned to the road for about a year prior to the incident in question. When the drug officer obtained a search warrant for a property, the grievant was asked by the Sheriff if he wanted to assist in carrying out the search warrant. The grievant agreed. In preparation for executing the warrant, a meeting was held with the grievant, the Sherriff and the drug officer to go over responsibilities. Grievant was told that he was to be the inventory officer, which meant he was responsible for logging in and properly recording the evidence obtained during the search. He was told that he was not to leave that assignment to engage in any search for evidence. When a meeting was held in which all the participants in the raid were present, the grievant was told he would be in charge of the entry team. The Sheriff’s notes did not reflect that the grievant was assigned as the inventory officer or that he was not to engage in any search for evidence.

When the entry occurred, the grievant entered the premises along with the other deputies. While securing the premises and before he set up his evidence table, he asked a suspect if he could check her purse for weapons and drugs.  Upon consenting, the grievant found drugs in her purse. He then proceeded to set up the evidence table and inventoried evidence that was brought to him. When he realized that another downstairs room had not been checked, he asked another deputy to watch the evidence table while he searched the room. Upon finding drugs in that room, took them and showed them to the Sheriff. The Sheriff did not say anything to the grievant about leaving his responsibilities.

The Prosecutor obtained convictions from this execution despite the sheriff’s anxiety about a chain of custody defense.

Nine months later the grievant was suspended for 10 days for insubordination and neglect of duty.

The employer insisted that the grievant was aware of what was expected of him and deliberately disregarded his instructions. The FOP/OLC attorney stated that his instructions were unclear and that the employer must have thought so too, because he took no action against the grievant for 9 months. The FOP/OLC attorney suggested the employer was motivated in issuing this disciplinary action because the grievant took 12 weeks of FMLA leave for the adoption of a child as well as submitted a number of other requests for time-off.

The arbitrator found that there are varying degrees of insubordination. In this case, when the grievant entered the premises and searched the purse, he was not yet acting in his capacity as inventory officer. When he later searched the dresser and showed the evidence to the Sheriff, the Sheriff said nothing about the grievant being insubordinate or neglecting his duties. The grievant never left the evidence table unattended. Each time (a bathroom break was the other) he left the evidence table, he asked another deputy to watch it.  He collected and marked all evidence obtained and the raid resulted in convictions. The arbitrator also questioned the seriousness of the insubordination when the Sheriff took so long to bring charges. The arbitrator found that the grievant’s infraction warranted a written reprimand.

(Issued November 14, 2008. Employer- Fulton County Sheriff)

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PAST PRACTICE WORKS AGAINST GRIEVANT

The grievant worked a double shift on Sunday. The contract states: ”Classified civil service employees of the Police Department shall be compensated at one and one-half (1 1/2) times the hourly rate for hours worked on Sunday”. Rather than pay this Sunday rate for all 16 hours for which the grievant worked, the employer paid him 8 hours at the Sunday rate and 8 hours at the regular rate based upon the theory that the hours over eight would result in overtime payments by the end of the week. The Sunday rate had not been paid for all hours worked on that Sunday. It was for this reason the grievant filed his grievance.

The employer maintained that they had ALWAYS paid the first 8 hours worked on Sunday at the Sunday rate and any additional hours at straight time as overtime would result .   The Chief testified they had done it that way since 1978. The Payroll Clerk said that was the consistent method during her tenure. There was no evidence they had ever calculated it differently.

The FOP/OLC attorney argued that the employer had been misinterpreting the contract to its own benefit for many years. It should not allow them the unfettered right to continue to do so.

The arbitrator saw the reasoning of the grievance was to make the grievant eligible for overtime for his last day of the workweek, which the arbitrator found unreasonable. Given the longstanding interpretation of the language as well as the failure of any bargaining unit member to object to that interpretation , the arbitrator ruled this well established past practice was the proper interpretation to be given to the Sunday pay situation.

(Issued October 18, 2008. Employer-City of North Canton)

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TERMINATION UPHELD FOR OFFICER’S MISBEHAVIOR 

While making a traffic stop for OMVI, the grievant was alleged to have made remarks and engaged in conduct which prompted the filing of a complaint by the cited woman. While investigating that complaint, two additional complaints were filed, both alleging similar conduct.

In all three complaints there existed a similar pattern of events. The grievant would determine if the complainant had a husband or a boyfriend and would complement the complainant on her physical appearance. Then the grievant would take the complainant home after processing at the police department and would engage in inappropriate conversation with the complainant while in his cruiser. He would legally attempt to enter the complainant’s residence upon arrival. He would invite the women to his vacation home and ask them out to breakfast. He would start calling complaints multiple times and alarmed the complainants. One complainant had to urinate while in the grievant’s custody. He instructed her to lower her pants and go in a parking lot.

The investigation took over two months and resulted in terminating the grievant. The attorney for the FOP/OLC argued that the witnesses (the complainants) were not available at the arbitration and therefore the grievant was being denied the fundamental right to confront his accusers. The FOP/OLC attorney called no witnesses but stated that the employer had not proved his case.

The arbitrator believed otherwise. The two month investigation was exhaustive. Transcripts were made of the interviews. None of the complainants knew each other nor knew the grievant. While the grievant denied he said or did the most damaging things in the accusations, the arbitrator concluded that the witnesses, not the grievant, were telling the truth. The termination was upheld.

(Issued September 24, 2008. Employer-Miami Township)

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PAST PRACTICE WINS THE DAY

In a unique circumstance where Police and Fire were joined in an arbitration hearing against the employer, the issue was whether the employer could implement an administrative directive lowering the amount of vacation accumulation set forth in the contracts.  Both contracts contained the same language (though not identical, due to the nature of the work schedule) and the employer agreed to have both contracts interpreted by the same arbitrator.

The issue involved the accumulation of vacation leave and how much could be carried over from year to year. Both contracts contained the same vacation accrual rate which was followed by a provision:

Extension of annual leave by deferment and combination of not more than three years entitlement shall be allowed upon approval of the Police (Fire) chief.

The Director of Administrative promulgated a regulation which reduced the amount of vacation employees could accumulate, stating:

Employees may accumulate up to five weeks of vacation leave (or 12 tours of duty for 56 hour per week fire division employees); hereinafter referred to as 5 weeks- employees are limited to a maximum accumulation of 5 weeks leave at any given time…

Both the FOP and the IAFF filed grievances. For as long as anyone could remember (at least 30 years) employees could carry accrued vacation time over from year to year for up to three years automatically, without obtaining approval from the chief(s). The employer did not deny this. The employer argued that such a practice was costing the city money and they were within their rights to deny the accumulation of vacation leave which had been their right to deny all along.

The FOP/OLC attorney argued that an accepted past practice existed and the employer could not end it.

For the arbitrator, the existence of a past practice was demonstrated by all the following: 1) clarity and consistency; 2) longevity and repetition; 3) acceptability; 4) consideration of the underlying circumstances; 5) mutuality. A common practice which had lasted for 30 years could not be undone because the employer wanted to change it, no matter how laudable the motive. The arbitrator ruled in favor of the unions.

(Issued October 31, 2008. Employer-City of Urbana)

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INVESTIGATION NOT COMPLETED IN TIME, GRIEVANCE SUSTAINED

In an arbitration hearing which did not consider the merits of the disciplinary action taken by the employer, the grievance was sustained due to a procedural flaw committed by the employer.

The grievant was off duty and celebrating a birthday party in another jurisdiction when a fight broke out and the police were called. The grievant had been advised before this incident that his association with certain individuals in bars was unwise. The grievant was not arrested but an investigation was commenced. The grievant’s supervisor initiated an internal investigation on November 9. On December 7 (later moved to December 12 by mutual consent) the grievant was afforded the opportunity to give his side of the story. On January 11 a pre-disciplinary was held, with a four day suspension the penalty. The employer issued the order of suspension on January 29. The grievant filed his grievance soon thereafter.

The attorney for the FOP/OLC moved for dismissal of the case because the employer had not completed the investigation/discipline within the time limits imposed by the contract.

The article of the contract dealing with investigations states:

All investigations, except those concerning criminal charges, shall be completed within 30 days from the filing of the compliant.

The article dealing with discipline states:

If an employee is to be disciplined, the employer will commence the action within 30 calendar days after the event occurs or knowledge of the event comes to the official attention of the (employer) or within 15 calendar days after completion of an internal affairs investigation of the events in question, whichever is the latest.

 The employer argued that the articles dealt with different matters and were independent of each other.

The arbitrator ruled that the contract had to be read as a whole, and either the employer did not complete the investigation in a timely manner or he did not impose discipline in a timely manner.  Either way, the employer had not met his duty to complete the disciplinary action as required by the contract. The arbitrator ordered the employer to rescind the suspension and to make the grievant whole for any lost wages or benefits.

(Issued October 28, 2008. Employer-Central State University)

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EVEN IF EMPLOYER REDUCES PREMIUM, HE CAN’T INCREASE DEDUCTIBLE

Contract provision called for a sharing of premium costs after a certain amount for health insurance. The contract also provided that the choice of carriers was at the sole discretion of the employer

“so long as any change in carriers does not impair the employee’s rights with respect to general coverage conditions or total deductible accumulation.”

Three months before the contract expired, the employer changed its insurance plan from a zero deductible plan to a high deductible plan of $4,000 for family coverage $2,000 for single coverage.  Of those amounts, the employees pay $1000 (family) and $500 (single) towards those deductibles.  With that change, employees with family coverage saved $1,632 in premiums over what their premiums would have been had they stayed with the no deductable plan. A class action grievance was filed by all employees in both bargaining units. The patrol officers changed their contract during negotiations to reflect the insurance change and dropped their grievance. The sergeants retained the old insurance language in the new agreement and proceeded forward with the grievance.

The FOP/OLC attorney argued that the contract language could not be more clear. The employee’s rights could not be impaired with respect to general coverage or total deductible accumulation. In anticipation of the employer’s argument, the FOP/OLC argued that the employer could not say that such a safeguard for the employees only existed if the employer changed carriers and not if he stayed with the same carrier. Such a conclusion would be absurd. The employer changed the plan and that plan contained increased deductibles. Further demonstration of the employer recognizing the deficiency of the language was the change made in the patrol agreement. If the ability to change plans already existed, why change the contract language?

The employer’s argument rested more on how such a change was a better deal for the employees than on his contractual right to make a change. The employer demonstrated how such a change saved the employees money so there couldn’t be a contract violation. The arbitrator didn’t see it that way.

As stated in the arbitrator’s opinion, when an employer acts unilaterally in altering existing benefits it does so at its own risk. The prior insurance plan had zero deductible and the employer cannot impose one unilaterally. The arbitrator found for the grievants and ordered a return of all monies employees may have paid towards a deductible.

(Issued September 23, 2008. Employer-Miami Township (Clermont County))

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RULES MUST BE APPLIED UNIFORMLY

The Sheriff’s office stated, in a general order, that

All uniformed officers will comply with the following standards for specific articles of the uniform…Shoes are to be black, plain toe, highly shined and of the type provided by the Sheriff’s office for use by uniformed personnel. Alternate footwear, a boot selected by the Sheriff’s office, may be worn with a physician’s note and prior approval from the Sheriff…

In November of 2007, a nurse practitioner wrote on a prescription pad “this patient needs to wear boots to work due to weak ankles and arch support. Chukka boots are not acceptable or recommended.”

The following month the chief deputy wrote the grievant “In response to your request and the recommendation of your physician, please be advised you are now authorized to wear the leather chuck-a-boot.

The grievant protested that another member of the department had a similar foot condition and had been allowed to wear a different type of shoe to accommodate his condition. The grievant wanted the same consideration. The sheriff responded that the grievant would be limited in his selection to the shoes available. When the grievance was filed, a flurry of correspondence transpired between the sheriff’s council and the FOP/OLC attorney. It was explained that the other officer had been allowed to purchase the off-brand shoe because he required a size EEEE which was not available in the recommended brand. A note soon followed from the nurse that the grievant, too, needed a size EEEE. Whereupon the sheriff bought a foot measuring devise and ordered the grievant to submit to a measurement. The test, administered by a deputy in the morning, found the grievant to be an EE.

The FOP/OLC attorney argued that the grievant had complied with all the requirements of the general order. How could the employer approve the use of a different shoe to one employee and deny the very same shoe to another?  That was not a uniform application of the rule.

The employer seemed to think that the whole business was a charade, that the grievant got a Dr.’s note specifying a EEEE width because that got him of the recommended shoe list and allowed him the purchase the special shoes.

The arbitrator reasoned that if the employer had cause to question the attending physician, he could have got his own doctor and examined the grievant. Having a deputy with a store-bought measuring devise was not the equivalent of a signed physician’s statement. In the absence of such counter evidence, a uniform application of the rules required the sheriff to furnish the grievant with alternative footwear.

(Issued September 28, 2008. Employer-Hamilton County Sheriff)

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DEPUTY NOT RECKLESS OR NEGLIGENT: ONE DAY SUSPENSION RETURNED

A call came indicating a suspect had kidnapped a female and was in the area travelling at a high rate of speed. The city police was pursuing the vehicle and the grievant joined in. The grievant was joined in the pursuit by a third vehicle containing another deputy and a Lieutenant. When they reached the city limits the police vehicle dropped out of the pursuit and the grievant, along with the other deputy and Lieutenant in the car following. When the Highway Patrol placed stop-sticks in the road ahead of the suspect, the suspect turned onto a county road. Continuing the pursuit, the grievant lost sight of the suspects vehicle when it went over a crest in the road. The suspect’s vehicle also was kicking up a lot of dust, but the grievant was able to observe the tail lights of the vehicle. The suspect’s vehicle then hit a hedge row, lifted up, and landed in a grassy area. As the grievant came a stop the road ended and there was a drop off of about 18 inches, causing damage to the deputy’s cruiser. The grievant made the arrest and turned the suspect over to the jurisdiction which reported the original abduction. No one was hurt.

Total damage to the cruiser was less than $2000.

A month later the grievant was given a one day suspension for violation of the county’s “Use of County Vehicle and Equipment” policy.

There was an interesting question of arbitrability raised by the County. The contract stated that a suspension which could not have been appealed to the Personnel Board of Review could not be appealed to arbitration. Since the Board of Review had a three day threshold for appealing a suspension, a one day suspension could not be arbitrated. That section had been in the contract since 1984  (under another Union) but no suspension in that category had ever been handed out. On an issue of first impression, the arbitrator ruled in favor of arbitration.

As to merits, the FOP/OLC attorney questioned the Lieutenant and got him to admit that the grievant had followed county policy “up until the end of the pursuit”, which is when the vehicle was damaged. The arbitrator opined that if there had been no damage to the cruiser there would have been no discipline. The grievant’s primary attention was on the suspect and the suspect’s vehicle. The fact that he was unable to stop short of a drop-off in the road (though he tried) was not evidence of recklessness of negligence. The record of the accident was ordered removed from the grievant’s file and the one day’s pay was ordered returned.

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OFFICER RETURNED TO WORK: NO BACK PAY

The grievant and his wife were having financial difficulties to the extant that they refinanced their home, sold some stock and got some assistance from family members. The grievant’s spouse had a problem with credit cards, so part of the solution to their problems was to destroy their cards. The grievant also suspected his wife of infidelity.  The suspicion was confirmed when he get received a report from one of his wife’s co-workers that his wife had used a credit card to pay for a hotel room for her and her boyfriend. The grievant lost it.

Dressed in civilian clothes and off duty, he stormed into his wife’s place of work and cornered her in the “back room”. He yelled at her and a few female co-workers, struck his wife twice with his fist, and threw a candy dish across the room and broke it. He threatened his wife and said he would kill her and then “put the gun in my mouth” A co-worker called the police but the grievant left before they arrived. Passing them on the street, the grievant profanely admitted to being the cause of the call. His co-workers arrested him and took him back to the station. While there he swore at his chief of police before he was taken to jail. He was charged with “Domestic Violence”.

The grievant plead “no contest” to a disorderly conduct charge, received a 30 day sentence with 28 days suspended, and ordered to receive counseling. He was terminated for “conduct that may constitute a crime” and for “conduct which may bring discredit to the department.”

The FOP/OLC attorney argued, essentially, that the grievant deserved a second chance. His conviction of disorderly conduct was not a disqualifying violation. The chief admitted that the grievant could continue to carry a fireman under the law. Although the grievant did not have a spotless record (a couple of one days and a ten day) he had learned his lesson and could be productive member of the department. His wife testified he had responded to counseling from his pastor and they were civil in their interaction.

The arbitrator decided, as had the judge in the criminal case, to give the grievant a break. He was ordered to receive counseling from a professional who worked with police, and received a “last chance agreement” which would be in effect for two years. The grievant received no back pay, but was given, with the above conditions, his job back with full seniority.

(Issued September 11, 2008. Employer- Jackson Township (Stark County))

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TWO INSURANCE WINS IN ONE HEARING

The first grievance claimed a violation of the contract when the employer increased the employee’s contribution towards health insurance. The grievance claimed that the employer failed in its obligation to the FOP/OLC by “the Union representative will be given the opportunity to have input regarding the County Plan before action is taken by the Commissioners”. The grievance asked that all increases in employee’s contributions to the insurance premiums be returned to the employees because of the employer’s failure.

The second grievance followed 4 months later when the FOP/OLC found out that  some county employees were paying less towards their premium than the members of the FOP/OLC bargaining unit. The contract reads:

During this contract there will be a cap upon the amount any bargaining unit members will pay upon the County Health Insurance plan under this option as follows. Employees will contribute the lesser of twenty-five(25%) of the total premium or the amount that other participants of the County Health Insurance plan are contributing for that particular option.

In fact, the Board of Elections employees were paying nothing towards their premium, although they had since been required to pay something.  In addition, there were other participants who were paying less than 25%.

The grievances were combined for hearing.

The employer responded to the first grievance by stating that the Commissioners told the Sheriff that the plan was to go into effect, and the Sheriff failed to tell the FOP/OLC. Somehow that didn’t meet the contractual need for the FOP/OLC to be informed. The fact that articles appeared in the local paper concerning insurance did not relieve the employer of his obligation. The arbitrator found a violation in the first grievance and ordered the return of overpayments in the premiums over what they were previously.

In the second grievance, the FOP/OLC attorney argued that a significant change in contract language led to the “me too” becoming more encompassing. Dropped from the preceding contract was reference to the “me too” as being applicable to “General Fund” employees. Also dropped was language that the “me too” was not applicable to employees of independent elected officials or boards. Those changes have to have meaning. The current language meant that the “me too” was applicable to all other employees who participated in the plan. Besides the Board of Elections employees, there were other employees who were not paying what the FOP/OLC members were. The “me too” had to have meaning or it would not have been included in the contract.

On this grievance the arbitrator also agreed with the FOP/OLC.  Since the contract did not specify what level the FOP employees should contribute in situations when other employees pay less than 25% but in varying amounts, the arbitrator ordered the parties to negotiate the definition of “lesser of 25 percent of the total premium or the amount other participants of the County Health Insurance Plan are contributing for that particular option” and to apply that rate for the remainder of the contract and to reimburse employees if necessary. The arbitrator retained jurisdiction should any disputes arise.

(Issued August 17,  2008. Employer-Lawrence County Sheriff)

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LIEUTENANT RETURNED TO WORK WITHOUT BACK PAY OR RANK

The grievant was celebrating his wedding anniversary on Put-In-Bay with his wife and family. After dinner at a pizza parlor, the grievant and some family members went to a popular bar. His step-son, who followed some time later, phoned the grievant’s wife inside the bar to say that he was being denied entry because he did not have proper identification. The grievant and his family walked to the entrance of the bar to assist the step-son. The security personnel at the bar would not be convinced to allow the step-son entry, and the step-son and the grievant became loud and profane. The security supervisor told the grievant to leave the property or he would call the police. Grievant identified himself as a police officer but it did not dissuade the security personnel. The bar closed the entrance to the facility. The police arrived.

The local police officer who arrived immediately called for back up. Eventually the grievant left, but walked through the bar’s parking lot towards the back door of the bar.  Believing the grievant’s party was trying to gain entry that way, the chief of security asked the local police to arrest the grievant. The grievant “lightly touched” the arresting officer on the shoulder, but otherwise did not resist arrest. He did, however, make disparaging remarks about the local department. The grievant was charged with criminal trespass and aggravated disorderly conduct and later released on his own recognizance.

The local chief called the grievant’s chief. The incident was reported in the local paper as well as another incident involving the grievant about which the grievant’s chief knew nothing. The grievant was placed on administrative leave and an outside agency conducted an investigation. As a result of the investigation, the grievant was charged with an ethics violation, misconduct, misuse of official position, failure to report an incident, and insubordination (failure to answer the investigator’s questions truthfully and completely). The chief recommended dismissal and the city accepted the recommendation. Later the grievant was found guilty of disorderly conduct (minor misdemeanor) but not guilty of criminal trespass and aggravated disorderly conduct.

The arbitrator dismissed the insubordination charge, as the grievant had expressed an opinion in the interview which was clearly understood as such. Initially, the grievant said he was a police officer to lend legitimacy to his claim that the I.D. was proper. This was not improper. Only after he attempted to use his rank to intimidate the police and protest the denial of readmission was he out of line. On all other charges the arbitrator found the grievant guilty.

The arbitrator took note of the grievant’s spotless nineteen year record and his having attained the rank of lieutenant. While he recognized the severity of the violations, the arbitrator determined that returning the grievant to work without back pay and without command responsibilities was punishment enough for the grievant and enough deterrent for future misconduct.

(Issued August 6, 2008. Employer-City of Sandusky)

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EMPLOYER FAILS TO EQUALIZE OVERTIME

As in many agreements, the agreement calls for an equalization of overtime among members of the bargaining unit. More specifically, the contract states:

Subject to the other provisions of this article, the City will attempt to equally distribute overtime opportunities. A list shall be             kept current, updated weekly, with the number of overtime hours worked and overtime refused by each employee. Overtime will be offered to the employee with the fewest hours of overtime. Overtime will be offered to the employee with the fewest hours first, then moved thru the list until someone volunteers for the overtime…

The grievants noticed that at the end of the preceding year (2007) there was a discrepancy of 185.5 hours between the employee with the most overtime and the employee with the least. At the time of the arbitration hearing (2008) , there was a difference of approximately 50 hours. The grievants alleged a violation of the contract.

The employer argued that the management’s rights clause of the agreement allowed them to do what they were doing, for it allowed the employer to determine the hours worked and to determine what overtime, if any, would be worked. It cited a safety concern that overworking an employee could be dangerous. Its method of assigning overtime was to offer the overtime to the employee with the least overtime and on their day off, thus limiting the fatigue factor.

The attorney for the FOP/OLC pointed out that such a practice was clearly a contract violation. The employer could allow no such consideration other the amount of overtime worked. Furthermore, employees frequently worked double shifts if it was convenient for the employer. For the employer to argue that safety concerns caused them to alter the contract was disingenuous. The contract was very clear. Overtime was to be equalized.

The arbitrator agreed with the FOP/OLC. The language of the contract was mandatory. Assigning overtime to bargaining unit members based on their day off was not in the contract, and the employer was ordered to change his method of assigning overtime in compliance with the express terms of the contract.

(Issued August 23, 2008. Employer-City of Blue Ash)

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SENIORITY DETERMINATIVE WHEN QUALIFICATIONS EQUAL

….While the Sheriff shall develop such work schedules in the exercise of his discretion and judgment, he shall, as he deems practicable, give consideration to the preferences submitted by employees by classification seniority, qualifications and in accordance with this article, and, in doing so, the Sheriff shall not act arbitrarily or capriciously.

The grievant had been an employee of the department in the corrections division since 2002. In the year preceding the grievance, she was employee of the year. At the appropriate time, she submitted her bid to work 1^st shift (7am to 3pm).

Another corrections officer, who was hired in 2005, was given the assignment.  When management was questioned about the choice, the grievant was told it was a management decision and the chosen candidate had demonstrated marketing skills having received a Bachelors Degree in Business Administration approximately eight months prior to her date of hire. Not satisfied with that answer, a grievance was filed.

The FOP/OLC attorney pointed out that marketing skills are not included in the job description. The grievant had expressed an interest in working first shift so she could “have a life”. The grievant had an associate’s degree and the successful applicant had a bachelor’s degree. No degree is required for the position. The successful applicant stated she was interested in doing some administrative work on first shift, but at the time of the arbitration hearing had not performed any. The grievant had twenty years experience doing bookwork in the private sector but the successful applicant came to work for the Sheriff’s Department right out of school.

Whereas the Sheriff testified that he gave consideration to seniority when making his decision, he deemed his choice as being better for the Department.

The arbitrator stated that deference should be given to the Sheriff, the grievant had rights as well. The choice of the Sheriff could not be based on anything that could be demonstrated, especially since the successful candidate had not used the skills for which she was allegedly chosen. There was no justification or bona fide reason for the more senior employee to not be given the shift preference. The grievant was ordered to immediately be given the assignment.

(Issued July 18, 2008. Employer-Putnam County Sheriff)

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OFF DUTY PURSUIT WRONG; SUBSEQUENT ACTION LAUDED

The grievant is a fulltime deputy and owner of a gas station and grocery store. While off duty in an apartment attached to the gas station, his daughter, who was tending the store, yelled that a customer had driven off without paying for gas. The deputy, in a tee shirt and flip flops, grabbed his handgun, got in his cruiser and followed the suspect. He said he took the cruiser because cells phones do not work in that part of the county and he could use the cruiser’s radio. When he got close enough to read the license plate he radioed it in to the dispatcher. At that point the fleeing vehicle stopped and rammed the cruiser, then took off again. Now with lights on, the grievant followed the vehicle to a dead end road, where the vehicle stopped and again rammed the cruiser. The grievant got out of his cruiser and the suspect tried to run him over. He fired his service weapon and the suspect surrendered. The suspect was convicted and sentenced to prison. The grievant was given two weeks without pay.

The grievant was employed for nine years and had no prior discipline.

The FOP/OLC attorney pointed out that the pursuit of the suspect did not begin until the first ramming took place.  Up until that time the grievant was merely following the suspect to get identity information. He had taken the cruiser because his cell phone would not work. He radioed the information to dispatch. Only after the suspect drove erratically and rammed his cruiser did the grievant pursue the suspect.

The arbitrator agreed with the FOP/OLC. Whereas it was a violation of the off duty policy to get in the cruiser and follow the suspect, all subsequent action was necessary under the circumstances. The grievant was in the car because his cell phone wouldn’t work, he radioed the proper personnel and he did not make an arrest. For his initial error he was given a written warning.

(Issued July 2, 2008. Employer- Lawrence County Sheriff)

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CITY CAN’T ERODE BARGAINING UNIT WITH TEMPORARY ASSIGNMENT

Minimum manning calls for 6 total officers on duty on a shift with either a sergeant or lieutenant in charge. A week prior to the incident, the Safety Director asked the city’s Civil Service Commission to appoint the next person on the eligibility list to the temporary appointment of sergeant. When that temporary sergeant worked a shift, a member of the bargaining unit filed a grievance claiming a violation of the agreement and a lost overtime opportunity. Ironically, the grievance was granted by the chief, but a the city did not pay, so the grievance proceeded to arbitration.

The grievance comes on the heels of another grievance which awarded bargaining unit work to bargaining unit employees. In that case, police officers were filling in where sergeants and lieutenants were absent. The arbitrator in that case established the right of the ranking bargaining unit to protect its work. In this case, there is no such thing as a temporary promotion to which the FOP/OLC agreed. The law recognizes provisional appointments where a list does not exist, but that was not the case here. The city used a non-bargaining unit employee to perform bargaining unit work.

The arbitrator reasoned that when the city lost the initial arbitration involving this unit, the city came back with the temporary assignment option to try to achieve what it could not due initially. Both schemes are contrary to contractual principals and both were rejected as improper interpretations of the contract.

The city was ordered to cease and desist from any future such assignments, and the grievant was ordered to be made whole for her lost overtime opportunity.

(Issued July 20, 2008. Employer-City of Warren)

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TRAINING IS BARGAINING UNIT WORK

A Lead Dispatcher from outside the agency was hired and trained by other Lead Dispatchers on the first and third shifts. There was no Lead Dispatcher on the second shift, so the employer assigned the Dispatcher Supervisor to perform the training duties. A class action grievance was filed for the second shift violation, claiming the training differential for the other dispatchers and the overtime the dispatchers would have received had they been properly assigned the training work.

Relevant portions of the contract include:

In cases where a lead dispatcher is not available, members of the bargaining unit (who volunteer) shall be compensated at the rate of ($1.25) in addition to the regular hourly rate for each hour they serve (training)

Bargaining unit work shall be performed by bargaining unit members.

All overtime opportunities that are normally performed by bargaining unit employees shall be offered to said employees.

The Dispatch Supervisor shall perform bargaining unit work on an as need basis as determined by the employer. The work performed by the Dispatch Supervisor shall be as a supplement in times of need and shall not displace overtime for the bargaining unit members.

The employer argued that all references to training dispatchers should not apply to the training of LEAD dispatchers. That would mean that subordinates would be responsible for the training of their supervisor. According to the employer, there is no requirement to have a lead dispatcher (who can perform training) change shifts to provide training on another shift. The contract requires only that dispatchers train other dispatchers, not lead dispatchers.

The FOP/OLC attorney argued that the contract allowed no such thing. Whereas this was the first instance of a lead dispatcher being hired from outside the agency, the training opportunities were the exclusive responsibility of the bargaining unit. The Lead Dispatchers additional duties for being the Lead Dispatcher were de minimus. The training was primarily about dispatching, and therefore was the right of dispatchers.

The arbitrator agreed with the FOP/OLC. Since no lead dispatcher was available on second shift to train the new hire, the work should have been offered to a dispatcher who was willing to perform the work. The employer was directed to compensate the employees who should have performed the training. The arbitrator retained  jurisdiction in case the parties could not arrive at an appropriate formula.

(Issued June 30, 2008. Employer-Richland County Commissioners). 

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PENALTY WAS EXCESSIVE; PUNITIVE

During the processing of a female prisoner in the booking area, a male inmate was observed on the security camera touching her buttocks. The supervisor observing this called the grievant and told her of the situation. The male inmate was spoken to and stepped back, but soon was back and touching the female. The supervisor then entered the booking area, removed the female, and wrote the grievant up for a violation of General Orders. Following a pre-disciplinary hearing, the grievant was given a 7 day suspension. She had no prior discipline.

The General Orders alleged to have been violated were: (1 all prisoners were to be shackled when in the receiving area, 2) male and female prisoners were to be separated if unable to provide direct supervision, 3) no more than one prisoner was to be processed at a time and 4) male and female prisoners were not to be able to touch each other. The FOP/OLC attorney argued that the female had voluntarily come in to release her warrant and was not technically a prisoner; that the female was hardly a victim as she gave her phone number to the male prisoner; that she was trying to expedite the release of the female for fear that she would be disciplined for failure to do so; that it was common practice not to shackle prisoners in the booking area. If anything, the grievant deserved a reprimand.

The arbitrator agreed the grievant was not guilty of processing more than one prisoner at a time. She concluded, however, that the grievant was guilty of the other violations. But she was troubled by the inconsistent manner in which the employer applied the rules. The supervisor and the administrator of the jail conceded that the rule on shackling was not uniformly enforced, and no other corrections officer had received discipline for an infraction. If such were the case, opined the arbitrator, it was not fair to the grievant. Further, prior to the disciplinary hearing, counsel for the prisoner requested information on the jail’s operation and personnel. The jail administrator told the grievant that the Sheriff was being sued, which was not the case. And the grievant’s request that the suspension be served over two pay periods was not granted, though it had been in numerous other cases. The arbitrator observed that the grievant was not a problem employee, as she had since been given a promotion. All this led the arbitrator to reduce the 7 day to a 2 day, with back pay for the difference.

(Issued June 23,  2008. Employer-Richland County Sheriff)

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DESPITE LAST CHANCE AGREEMENT, GRIEVANT RETURNED TO WORK

In early 2007 the grievant was given a last chance option that future incidents of discourteous treatment of the public would warrant termination. Nine months later the grievant was terminated for what the employer called improper conduct and improper procedure. In light of the last chance agreement, the employer said it had no choice.

The FOP/OLC attorney focused on the most recent incident, as the last chance agreement was what it was. The basis of the offence in the prior case was verbal abuse of a citizen, which the FOP/OLC attorney maintained was not present in the most recent incident.

The grievant was called to a disturbance at the local mall. Upon arriving, he noticed that one of the principles was a youth whom the grievant knew from a previous situation. The youth was attempting to see the grievant’s daughter and the grievant had had run ins with the youth before. A complaint had been filed against the youth and another officer had investigated. Although no charges were brought, the youth was warned to have no further contact with the family. When the grievant confronted the youth at the mall, the employer contended he used profanity and threatened the youth. Such behavior was reminiscent of his previous incident for which the last chance agreement was negotiated. The employer believed he had just cause to terminate the grievant.

But the arbitrator was convinced by the argument of the FOP/OLC attorney that the grievant was within the boundaries of proper behavior. At no time did he threaten the youth (the incident was on tape) nor did he yell profanities at the youth. It was only after the grievant brought charges against the youth that he filed a complaint against the grievant.  The arbitrator believed the complaint was retaliatory and without merit. Because the behavior in this incident did not match the behavior in the previous incident, the arbitrator reinstated the grievant with full back pay and benefits.

(Issued June 9,  2008. Employer-City of Steubenville)

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CONTRACT IMPLIES M.O.U.-“ME TOO” APPLIES

 Through the Fact-Finding and Conciliation procedures, the parties got “me too” language dealing with heath insurance which read:

Should the Police Officers 2007 Contract include language on Anthem HMP/EPO benefits, the same language shall be             incorporated into the FOP/OLC (Gold) Contract.

At the time, the Blue Contract had not settled.

The previous language dealing with insurance in both the Blue and the Gold contracts had read “Anthem HMP benefits shall not change for the life of the contract”. When the Blue unit finally settled, that sentence had been deleted, with the rest of the article the same. However, there was a Memorandum of Understanding dated on the same date as the Blue Contract which stated: “This letter shall confirm that the Anthem EPO benefits as attached shall not change for the life of the contract” The letter was signed and confirmed by the City and the Blue representative.

The question before the arbitrator was:

Is the City violating the agreement by refusing to provide the HMO/EPO benefits contained in the Memorandum/Letter of Understanding with the (Blue Unit)?

The Arbitrator answered with a resounding “yes”. 

“The Collective Bargaining Agreement between the City and the Police Officers includes more than the instrument denominated as such. That document is not a complete “integration” setting forth the entire Agreement between the parties”. The M.O.U., a “side agreement”, is just as much a part of the C.B.A. as the instrument bearing that name. It is just as binding and therefore is a contract, which qualifies to be incorporated in the FOP/OLC contract.

The arbitrator ordered the City to include the FOP members in the Health Care Benefits Plan and to reimburse the Gold Unit members for any out-of-pockets expenses.

(Issued June 3, 2008. Employer-City of Warren)

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SHERIFF CANNOT UNILATERALLY CHANGE SENIORITY CALCULATION

On two separate occasions there were promotional exams given to members of the Gold unit who were eligible for promotion. As a result of the first test there were 4 people promoted, and the second test resulted in three people being promoted. Therefore there were 4 people with the same promotion date and 3 people with the same date. As had been the practice for many years, the person with the highest department seniority date was considered to be the senior promoted employee when promotions were made on the same day. When one of the junior employees who was promoted on the promotion date grieved his seniority date, the sheriff settled that grievance by putting him ahead of the other employees and stating that from now on seniority for employees promoted on the same date would be determined by test scores. The two employees who were deprived of their senior status filed grievances.

The contract defines seniority three ways:

Department Seniority. Defined as the uninterrupted length of  continuous service as a full-time Deputy Sheriff.

Supervisory Seniority. Defined as the uninterrupted length of continuous service as a full time supervisor with the rank of …..

Rank Seniority. Defined as the uninterrupted length of continuous full-time service from the original date of appointment….

As the agreement is silent on how to determine seniority ranking for employees promoted on the same date, the employer took the position that he could decide any way he wanted, and test score results rewarded the better employees. A combination of the management rights section and the zipper clause gave him the authority.

But the FOP/OLC attorney argued that the method originally utilized by the Sheriff had been the practice since at least 1979, with both parties aware of and accepting the method of determining seniority. With 30 years background as the only way seniority was calculated, the Sheriff could not scrap it for a method he preferred. The zipper clause notwithstanding, seniority had been calculated a certain way which had come to be expected by the employees, and if the employer wanted to change it, he would have to bargain it.

Both employees were given their position on the original seniority list with respect to others promoted on the same day based on departmental seniority, not test scores.

(Issued June 16, 2008. Employer-Summit County Sheriff)

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PROGRESSIVE DISCIPLINE REQUIRES REDUCTION FROM 30 DAYS TO 10

Grievant’s GPS system in his cruiser was malfunctioning, so he was told by the Lieutenant to leave the vehicle on station at the end of his shift to be repaired. A few hours into his shift, the grievant was told by his shift supervisor that he was working the fair the following day. Deputies assigned to the fair drive the vehicles onto the fairground to keep them available in case of emergencies. The grievant, therefore, did not leave his vehicle for the GPS repair but drove it home in anticipation of working the fair the next day.

The next day the Captain wanted to know where the grievant’s vehicle was. When told it was at the grievant’s home in anticipation of driving to the fair, the captain took the grievant out of service and charged him with insubordination. The grievant was eventually given a thirty day suspension for his misunderstanding.

While the employer argued that the grievant could have been terminated, the FOP/OLC attorney argued that the second order, telling him to show up at the fair, cancelled out the first order. What was the grievant to do? He chose to follow the shift supervisor’s directive to work the fair and would see to his GPS system at another time. Unfortunately, he did not discuss this with the Lieutenant who had issued the first order. He simply ignored the order, thinking it was superseded by the subsequent order.

The arbitrator agreed with the employer that it was a case of insubordination, but not gross insubordination, as he did not blatantly refuse to follow an order. He simply chose to ignore it thinking he was relieved of the responsibility to follow it. He had a prior 3 day suspension on his record, so, in the opinion of the arbitrator, this transgression warranted a ten day suspension.

(Issued May 23, 2008. Employer-Erie County Sheriff)

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OFFICER DISCOURTEOUS BUT DID NOT USE EXCESSIVE FORCE

While on patrol in a high crime area, the grievant saw a driver fail to stop at a stop sign. As he pulled her over for a citation, a state trooper pulled up and confirmed the driver had failed to stop. The trooper witnessed the grievant approach the driver, who was on her cell phone with the radio playing loudly. The grievant asked to driver to turn the radio down and identified himself and the reason he had made the stop. The driver said she didn’t see the stop sign and that she frequented the neighborhood and was frequently hassled by the police. The grievant made an unnecessary comment about the stop sign and suggested the driver not come to that neighborhood if she were treated badly by the police. The driver started honking the horn. The grievant told her to get out of the car. She continued to honk the horn and did not get out of the car.

Someone from a house started to approach the grievant gesturing and raising his voice. The grievant turned towards this person and told him to get back in the house. When he failed to do as he was told and continued to approach the grievant, the grievant tried to take him to the ground. When that failed, he tried to use his Taser which failed to fire. The grievant called for backup. Backup arrived and the third party was cuffed. It turned out the third party was the driver’s father. The driver, meanwhile, eventually got out of the car and began threatening gestures toward the grievant. The grievant, fearing for his safety, took the driver to the ground and cuffed her. Her father was charged with disorderly conduct and the driver pled guilty to disorderly conduct. The trooper was a witness to the entire exchange and both the trooper’s camera and the grievant’s camera recorded the entire event. The driver filed a complaint. An investigation ensued, and the grievant was terminated for discourtesy to the public and the use of excessive force.

The employer insisted the grievant had embarrassed the Sheriff’s office and his behavior was inexcusable. Although the investigation found that the grievant used an appropriate amount of force, the video tapes were very graphic and damaging. If viewing the tape had been unaccompanied by a dialogue provided by the witnesses and the FOP/OLC attorney, the employer might have proved its case. As it was, the grievant admitted that his remarks about the stop sign and visits to the neighborhood were inappropriate, but he was found not to have used more force than was necessary to effectuate the arrest. As a matter of fact, he used less force than he was authorized to use under the circumstances. For his poor judgment the grievant was given a thirty day suspension.

(Issued May 23, 2008. Employer-Montgomery County Sheriff)

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MOVEMENT WITHIN CLASSIFICATIONS DOESN’T ALTER
LENGTH OF SERVICE FOR WAGE PLACEMENT

The grievant was hired as a deputy in January, 1998. He was promoted to the rank of sergeant in August 2002. In 2007 he took a voluntary demotion and returned to the rank of deputy. Whereas the sergeants had one rate of pay for all sergeants, the deputies had a six step pay scale based on number of months of service. The grievant soon discovered he had been placed in a step of the pay range below where he thought he should be when he returned to the deputies’ rank. The employer failed to include the time he spent as a sergeant for placement in the deputies’ wage scale.  Further, his classification seniority had also been reduced by the amount of time he had spent as a sergeant. He filed grievances protesting his placement.

The collective bargaining agreement, which includes 5 bargaining units, has two definitions of seniority. The first is office seniority and the second is classification seniority. Office seniority accrues to those who remain in a classification “covered by this agreement”, whereas classification seniority is seniority which accrues while one is within a specific classification. When one leaves one classification to serve in another, his seniority is “frozen” in his former classification until, or if, he returns to that classification.

The FOP/OLC attorney successfully argued that office seniority was the determining factor in what step the grievant should be paid. As office seniority is determined by the length of service one has with the department, and the grievant had no breaks in that service, he should have been placed in the step which included all such service including the time he was a sergeant. In that respect, the grievance was sustained, with an award of the difference in pay between the assigned step and the correct step.

The question of classification seniority was not resolved in the grievant’s favor. Despite the FOP/OLC attorney’s request that the arbitrator take notice of past practice on the part of the employer, the arbitrator determined that the clear language of the contract determined the resolution of the grievance and it was denied.

 (Issued April 21, 2008. Employer-Scioto County Sheriff)

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POSTING DETERMINES WHO GETS ASSIGNMENT

The employer posted a “Position Opening” for a Detective with job duties which included:

Conducts investigations of crime scenes and criminal activity (secures scene, gathers and analyzes evidence, locates and interviews witnesses, develops informants, searches premises, makes judgments regarding probable cause for warrantless search, transports property or evidence, diagrams crime scene, documents evidence chain of custody etc.) presents results of investigations to prosecutor or grand jury. Prepares for and testifies in courts of law. Prepares investigative reports and documentation.

The posting also included general attributes as minimum qualification.

Five candidates applied. The position was awarded to the least senior applicant, who was selected, reasoned the employer, because 1) he had superior computer skills 2)he showed enough interest to pay for his own training, and 3) he was more motivated than the other candidates.

A grievance was filed by the most senior applicant, who had also served as a detective for 8 1/2 years but had stepped down for personal reasons.

The FOP/OLC attorney did not emphasis the seniority issue, as seniority was only a deciding factor if all other qualifications were equal. Instead, the argument was made that the selection was made based on attributes which were not included in the posting. The grievant received better reviews from his direct supervisors, but the higher ups, who made the recommendation to the chief, shifted the emphasis to computer skills, about which the grievant had not been asked.

It left the arbitrator to conclude that the employer had posted for a general detective and had really sought a specialized detective who excelled in a skill the other applicants had not been interviewed for. Only upon reaching this conclusion did the arbitrator decide that the grievant, with comparable skills for the position sought, should be awarded the assignment based on his seniority.

(Issued April 5, 2008. Employer-City of Ashland)

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UNIFORM APPLICATION OF RULES CALLS FOR REDUCTION IN DISCIPLINE

While working the central control booth in the county jail, the grievant allowed a municipal police officer in a restricted area. For this he was charged with substandard job performance and insubordination. The insubordination charge stemmed from a memo issued by the sheriff prohibiting members of the municipal police department from having contact with a specific prisoner. At a predisciplinary hearing the insubordination charge was dropped because the officer never had contact with the prisoner. The substandard job performance charge was upheld and the grievant received a one day suspension.

The grievant freely admitted he was guilty of a rule infraction.

But through his FOP/OLC attorney, he offered how he was being treated differently than another employee similarly situated. In order for the police officer to be in the control room, he first had to get through another restricted area which had 4 other employees. His presence in that area had not been of concern. He immediately notified his supervisor of the situation and was told “no big deal. Just let me know ahead of time the next time.” The other employees who had allowed the breach were not subjected to discipline.

But even more convincing to the arbitrator was an incident 2 days before where a corrections officer with the same disciplinary record had allowed another municipal officer access to the jail without any other corrections officer being present and received a reprimand for his behavior. When asked about this different treatment, the sheriff’s only response was that the instant case was different.

It was not different enough for the arbitrator. Recognizing the similarities in the offences, the arbitrator imposed the same penalty on the grievant-a written reprimand. His one day suspension was overturned.

(Issued April 24, 2008. Employer-Stark County Sheriff.)

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LAID OFF EMPLOYEE ENTITLED TO RETROACTIVE PAY

The grievant was a fulltime member of a bargaining unit which was engaged in negotiations for an initial contract when, due to financial problems, the city laid her off. The contract was ratified 5 months after her layoff. The new contract called for retroactive pay increases dating from January 1 of the preceding year, or about a year and 9 months of retroactive pay. A month later, she was called back to fill a vacancy created when a fellow employee had to take a medical leave. Approximately 2 months later she was returned to lay-off status. While on recall, she asked whether she were eligible for  the retroactive pay and was told no. She was also not given the 14 day notice prior to the lay-off which the new contract called for. She filed a grievance and proceeded to arbitration.

The employer argued that the grievant was severed from employment with her layoff and not eligible for retro pay and was a temporary employee when she was filling the vacancy for the employee on medical leave and not a member of the bargaining unit.

The FOP/OLC attorney argued that the contract stated that ALL employees were eligible for the retro pay and laid off employees had a continuing relationship with the employer for 24 months. The employee was not a severed employee but one on lay-off status, which gave her recall right for 2 years. She would have been entitled to retro pay even if she hadn’t been recalled to work for 2 months for the medical leave. The recall only strengthened the case.

The arbitrator agreed with the FOP/OLC. The grievant had a continuing relationship with the employee as if she had been an active employee. She was entitled to retroactive pay the same as any other member of the bargaining unit. She was not, however, entitled to a two week notice of her second layoff, since she was advised of the approximate duration of employment and was able to make plans accordingly.

(Issued May 18, 2008. Employer-City of Eastlake)

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EMPLOYER NOT REQUIRED TO CONTINUE MISTAKE: NO PAST PRACTICE

The FOP/OLC had represented the unit since 1991. During all that time, the article on holiday pay had read the same:

All employees who work on a recognized holiday shall receive one and one-half (1-1/2) their regular rate of pay for all hours worked on the holiday in addition to their regular holiday pay as provided herein.

And the employer had always paid the employees 8 hours regular pay and 4 hours overtime pay for the holidays they worked. The employees reasoned that’s what the article meant, and because that’s what the employer paid, they figured the employer reasoned that way, too. Employees who worked the holiday received 14 hours pay in addition to their holiday pay. Since the first contract.

In 2007 the payroll department informed the supervisor of the unit that the employees were being improperly paid. Instead of 14 hours, they were only entitled to 12 hours of compensation in addition to their holiday pay. The supervisor had previously signed pay sheets authorizing the greater pay.  With this knowledge, the supervisor altered employees pay sheets to reflect the change to the lesser amount. A grievance ensued requesting the additional 2 hours along with a request that the supervisor be terminated for altering a time sheet.

The FOP/OLC attorney argued that a practice of 15 years standing should be determinative of the case. The employer had conceded the Unions interpretation of the contract for long enough that he couldn’t go back and change it without negotiating.

The employer argued that there was no meeting of the minds on proper compensation. The supervisor had signed the time sheets in the past without knowing it created improper payment. Even if the supervisor had authorized the payment, the employer itself was not aware of the improper payment.

The arbitrator was not convinced that a proper past practice existed. The employer never accepted the interpretation as the proper one. And further, the FOP/OLC’s interpretation was contrary to the express terms of the contract. The employer caught his mistake, albeit 15 years late, and could not be expected to continue it. The grievance was denied.

(Issued March 15, 2008. Employer-Stark County Commissioners)

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PROMOTIONAL PROBATIONARY GRIEVES; WINS

The grievant was a dispatcher who was promoted to the position of Road Deputy. With the promotion came a one year probationary period. Halfway through her probation she received a memo from the Sheriff informing her she was being returned to her former position due to “unsatisfactory performance and/or failing to meet expectations of this office”. She filed a grievance.

The arbitration was bifurcated with the question of arbitrability the first to be answered. The contract contained two probationary periods. Initial hires had varying probationary periods depending on their craft, but common to all of them was the statement “A newly hired probationary employee may be terminated any time during his probationary period and shall have no appeal over such removal, nor a pre-disciplinary hearing.” Promotional probations had no such language. The contract reads “An employee serving a promotional probationary period whose performance in unsatisfactory shall be returned to their former position”. The FOP/OLC attorney argued, and the arbitrator concurred, that by omitting the ban on appeal of a promotional removal, the parties must have meant them to be subject to the grievance/arbitration process.

Because the contract contained a “just cause” provision for reductions in classification, a provision requiring pre-disciplinary hearings and a provision stating that “an employee serving a promotional probationary period whose performance is unsatisfactory shall be returned to their former position”, the employer was required to provide the employee with a pre-disciplinary hearing and establish that the employee’s performance was unsatisfactory.  The employer deprived the employee of her due process rights, refusing to advise her as to the why her probationary period had been terminated. As such, she was not permitted to give her side of the story to reasons the employer used to demote her. She was not given that opportunity until the arbitration hearing. The arbitrator found her testimony to be quite convincing and credible. The employer’s criticism of her “hair, makeup and liberal dress” and their description of her attitude as “assertive and aggressive” was inappropriate and suggested other reasons why the grievant was demoted. All criticism of the grievant’s performance were proven to be pre-textual and without merit.

The grievant was reinstated as a road deputy with deputy pay retroactive to the time of her demotion.

(Issued February 24,2008. Employer-Scioto County Sheriff)

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COURT TIME ALLOWED, LONGEVITY DENIED

This case involves two grievances. In the first, the grievant sought $300 in longevity pay which accumulated at $60 a year up to 25 years. The section dealing with longevity pay reads:

The City Manager, upon evidence of merit, will authorize longevity pay for all employees….  If an employee’s performance is less than satisfactory, the payment may be adjusted or eliminated to reflect substandard performance.

The grievant had been suspended 5 days as part of a settlement in the year preceding her eligibility for longevity pay. The Chief informed her via memo that she would not be receiving longevity pay that year, although the grievant was on injury leave and did not receive the memo. Regardless, the arbitrator ruled that longevity pay came under the category of “merit pay” and absent an abuse of the discretion, the contract conferred on the City Manager the right to deny her “merit pay”.

The second grievance dealt with 3 hours pay for court appearances on two different occasions while the grievant was on injury leave (wage continuation) and not working.  On the first occasion, the grievant, could have worked “light duty” and was listed on the schedule on the 2:30 P.M. to 11:00 P.M. shift.  The court appearance was in the morning. The arbitrator ruled that the grievant was ineligible for court pay because the employer could have adjusted her schedule to include the court appearance within her working hours. She had not let the employer know of her court appearance prior to making a claim for the time.  The arbitrator denied court pay for this first appearance.

The second court appearance occurred approximately a month later when her physician found her totally disabled.  The arbitrator found that court appearance was not during her regular tour of duty and that her schedule could not be adjusted.  The arbitrator allowed 3 hours of pay for that appearance.

(Issued February 4, 2008. Employer-City of Wyoming)

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RETIRED EMPLOYEE IS ENTITLED TO RETROACTIVE PAY INCREASES

The Sergeants collective bargaining agreement was not signed by the employer until May 24. The previous agreement had expired October 1. The agreement called for pay increases and increases in benefits to be retroactive to January 1.  The Deputies agreement was concluded on May 10. Pay increases in the Deputies contract were retroactive to January 1.  The Sergeant’s contract included a pay differential of 17% above the highest paid subordinate officer. The end result was the Sergeants were entitled to the benefit increases negotiated in their own contract and the differential increases negotiated in the Deputies contract.

The grievant retired from the department on April 30. The question to be answered was: is the grievant entitled to back wages if he is no longer a member of the department?

The FOP/OLC argued that the all bargaining units members are covered in the recognition clause of the agreement, and the grievant was a member of the bargaining unit when retroactive pay was awarded.

The employer argued that the grievant was not a member of the bargaining unit when the agreement was approved and adopted. Further, no employee who terminated his employment prior to the signing of a new agreement had ever reaped the benefits of the new agreement.

Citing precedence, the arbitrator stated that the past practice mentioned by the employer of no other employee ever claiming retroactive pay in a severance situation would only hold if it was an accepted past practice by both parties. The FOP/OLC Staff Representative said the Union was “never asked” if retroactive pay applied to severed employees. As to its applicability in general, the notion of retroactivity implies “that the parties intended that the specified increase should be treated as if the contract had actually been signed on the effective date.” The grievant was a member of the bargaining unit at the effective date of the new agreement and was entitled to whatever the new agreement called for.

(Issued February 28, 2008. Employer-Stark County Sheriff)

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DOCTOR’S EXCUSED ABSENCES DON’T COUNT AS “OCCASION”

The 28 year veteran of the department had experienced a record of inconsistent attendance. In 2003 she was absent 13% of the time, 12% is 2004, 10% in 2005, 9%in 2006, and at the time of the arbitration, had missed 5% of her scheduled shifts. In 2004 she received a 1 day suspension, 2 days in 2005 and a 5 day in 2006 that was reduced to a 2 day when she agreed to cooperate concerning her acid reflux condition. In February, 2007 the employer held a pre-disciplinary conference on the grievant and as a result gave her a ten day suspension for excessive absenteeism. In June of 2007 a new contract was finished up and made retroactive to January, 2007.

The contract made each use of sick leave an “occurrence”.  If an employee were absent one or more days, the employer counted it as an “occurrence”. Six or more occurrences in a twelve month period constituted “pattern abuse” and could result in discipline. New to the contract in 2007, however, was an exemption for absences supported by a physician’s statement. All but one of the grievant’s 7 “occurrences” in the preceding 12 months had been accompanied by a physician’s statement. The grievant, therefore, had only one absence which could be counted as an “occurrence”.

In light of the change in the contract, the arbitrator determined that the grievant merited a verbal reprimand and was awarded ten days back pay.

(Issued November 2, 2007. Employer-City of New Philadelphia)

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HIGH SPEED PURSUIT; LEADS VIOLATION NOT ENOUGH FOR TERMINATION

As students were leaving an on-campus event early one morning, several students reported a vehicle with a driver brandishing a gun in the campus parking lot. The grievant and his partner in one cruiser and another officer with his partner in a different cruiser attempted to stop the vehicle. The vehicle eluded both teams of officers and departed the university property.  With sirens and lights activated, the officers followed the vehicle and radioed for help from surrounding communities.  The other officer’s vehicle was disabled by stop sticks, but the grievant continued to give chase at speeds of 100mph. The chase went through neighboring communities and was joined by the Highway Patrol and other jurisdictions.  The chase ended in a crash involving the grievant’s vehicle and injuring the grievant.

Approximately six (6) months after the chase, while off due to the injury, the grievant requested a LEADS check on a former student of his at the Police Academy. The grievant said the check was to see if the person could apply for a job with the department. He had requested similar checks in the past, but always with the Chief’s permission.  He was on leave at the time.

Based on the chase and the alleged LEADS violation, the department terminated the employee. He filed his grievance.

In the course of the hearing, the employer tried to introduce additional information which had come to light since the time of the termination, but was disallowed at the hearing.  As to the high speed chase, the FOP/OLC attorney pointed out that the department had no policy on pursuits, which made it very difficult for the grievant to violate policy.  The Arbitrator agreed but did find the grievant guilty of poor judgment.  The LEADS violation turned on the possible personal gain the grievant achieved by doing the background check.  Seeing none and learning that the department had not lost their LEADS privileges, the Arbitrator determined a violation occurred but not a serious one.  In the end, the Arbitrator reduced the termination to a 30 day suspension.

(Issued November 28, 2007. Employer-Central State University)

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CITY MUST GO TO COURT TO RECOVER OVERPAYMENTS

Several years had passed since the FOP/OLC and the City had negotiated a change from an 8 hour to a 10 hour day. At the same time, the parties recognized that the number of hours required in roll call had decreased. When the ten hour day went into affect, the number of guaranteed hours for roll call went from 55 to 44 a year.

In 2007 the city realized that it had calculated the roll call hours wrong for the years 2003-2005. It notified the FOP/OLC of the error and invited individual members to work with the City Auditor on a repayment plan. Some members did, but the majority did not.  When the City made the deductions from the paychecks, the members filed a grievance, claiming the City had no authority to recoup their losses.

The grievance was initially handled by the Chief at step one. He granted the grievance, though not citing any contract provisions which allowed it. The Director of Human Resources eventually denied the grievance, but not without a certain amount of rancor.

The FOP/OLC Attorney argued that the City was not entitled to any return because the employees had actually worked the hours they were paid. Even if the City were entitled to be repaid, he argued, they should go to court to get a judgment just like any other garnishment.  The City said they were entitled to recover the overpayment and the FOP/OLC had refused to work out a repayment plan so the City was taking it all at once.

The Arbitrator found that the money was owed the City. The Union had the burden of proof to show the members were entitled to the overpayments and had not met that burden. However, the contract did not address how overpayments were to be recovered by the City, and since it was silent, the City could not just take it. The Arbitrator’s ruling was that the City had four months to file in the Court of Common Pleas to recover the money. If they had not filed during that time, the money had to be returned to the bargaining unit members.

(Issued January 4, 2008. Employer-City of Warren)

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HEARSAY EVIDENCE NOT GOOD ENOUGH FOR TERMINATION

The grievant worked as a security officer at a public utilities facility. He had some incidents of being rude to the public in his personnel file, for which he had been reprimanded and served a three day suspension. When the employer received additional complaints about his behavior, they solicited letters from the complaining parties. One complainant submitted a letter, the other dictated his over the phone. With these letters as evidence, they terminated the grievant.

While arbitrators are not bound by the rules of evidence, they nevertheless give weight to evidence on the record as a whole. The statements in this case were of a nature that accepting them would not have given the grievant a chance to defend himself. As pointed out by the FOP/OLC attorney, the statements made by the complaining parties were challengeable as to the facts, to say nothing about the arbitrator’s ability note the demeanor of the witnesses as opposed to that of the grievant. Even the employer had accepted a statement over the phone, without any effort to confront the witness. Some of the allegations were quite serious, including the use of force, but such allegations could not be sustained unless further questioning showed exactly what the witnesses meant.

In short, the only reliable witness was the grievant himself. The hearsay evidence was allowed, but was of such dubious value that the employer failed to prove his case for any discipline at all. The grievant was returned to work with no discipline.

(Issued January 3, 2008. Employer-City of Cleveland)

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