By David Worley
In City of Chicago, 131 LA 902 (Goldstein, 2013), the arbitrator found no violation of the CBA occurred when the Chicago Police department did not elevate a Captain to position of Commander when the current Commander was temporarily absent even though the CBA specified that an available Captain (the grievant), would be elevated to that position when it became vacant. The arbitrator found a valid exercise of management rights when the City decided it was unnecessary to fill the vacant Commander position when the vacancy was for such a short period. Although during the vacancy, officers were instructed to look to a Commander at a neighboring district for “any questions or concerns”, the arbitrator found this did not constitute actually filling the vacancy.
The dispute arose when the current Commander of the 10th district went on a five day furlough and the Grievant, at the rank of Captain, requested to be elevated, albeit temporarily, to the commander position. The current commander stated to the grievant that he would not be promoted, and that that “questions and concerns” should be addressed to the 11th district Commander in his absence. The CBA provided that when the department needed to fill the commander position: “No other officer shall be assigned or permitted to fill the position of Acting District Commander when a Captain is assigned to the District and is available.” The arbitrator found the Union’s assertion that that the 11th district Commander filled the 10th district Commander’s position in violation of the CBA was ineffective.
First, the mere statement that “all questions or concerns” be addressed to the 11th district Commander did not clearly establish that the position was filled. The union could offer no other evidence to indicate the 11th district commander actually filled the position.
The “filling the position” language of [the CBA] connotes, to me at least, that some activity must have been established on the part of [the 11th district Commander] involving District 10 if the Union’s claim that [the 11th district commander] actually filled the position of [the 10th district commander]. [T]here is no evidence of what [the 11th district commander] actually did or did not do as far as 10th District work goes.
Second, the arbitrator noted that there was a management rights clause that allowed the City to “cover” temporary vacancies. From this right to “cover” he concluded that there was no affirmative duty to fill the position of commander instead of cover it. The CBA only required that when it is filled, it be filled by a Captain.
There is no mention of requiring officers to be assigned to act up by Management in [the CBA]. That is precisely the gap in the logic in the Union’s [argument]. Absent an affirmative duty in [the applicable CBA provision] on the City to assign rather than cover that trumps Management Rights to staff and assign work, [that CBA provision’s] terms are simply inapplicable to the factual circumstances at bar.
