By Anthony Rice
In City of West Palm Beach, the arbitrator held the grievance was not arbitrable, because the captain (grievant) was outside the bargaining unit and the CBA contained no language concerning grieving a captain’s demotion.
The grievant, a police captain, a position outside of the police bargaining unit, was demoted to the rank of police officer as the result of an incident that occurred while he served in the rank of lieutenant. In its grievance, the union asserts that the grievant has earned the due process rights to be returned to his last held civil service rank of lieutenant in accordance with local law, and the right to file a grievance under the CBA for his demotion to the rank of patrol officer. The city countered by asserting that the grievant became aggrieved when he occupied a senior command position outside of the bargaining unit, and as such, the union’s grievance on his behalf is not arbitrable under the Agreement.
The arbitrator stated appreciation for the union’s argument that the long-term employee who accepted appointment to a position from which he can be removed “at will” must have due process protections. However, Article 35 of the CBA defines a grievance and outlines the authority and limitations of this arbitrator: Section 1, clearly defines a grievance as, “all disputes between the parties arising from the application or interpretation of this Agreement.” Thus, the question before the arbitrator was limited to whether the CBA can be interpreted to provide for arbitration for the grievant. The arbitrator turned to Article 2 of the CBA to answer this question.
Article 2, Recognition, Section 2, of the Agreement, expressly states that the Florida Public Employee Relations Commission (PERC) recognized and defined the bargaining unit for sworn officers of the City. Those recognized ranks in the bargaining unit are: Police Officer and Sergeant; and all other employees in the classifications of Crime Scene Investigator and Police Aide; and the rank of Lieutenant excluding two confidential assignments “and all other employees of the City of West Palm Beach.” Thus, the rank of police captain, which the Grievant held at the time of his discipline (the event giving rise to this grievance) was not part of the bargaining unit.
This arbitrator, therefore, held that the CBA is not susceptible to an interpretation that the instant grievance is arbitrable, however unjust the demotion may be.
Editor’s Note (Jim Cline): The union raised an interesting argument, although predictably a losing one. Although the grounds cited by the city related to events that occurred with the officer was in the bargaining unit, the action challenged was the city’s demotion from a non-bargaining unit position. Even though the captain was demoted back to an officer position represented by the union, the position he was demoted from was not covered by the CBA. Therefore, the arbitrator could not have asserted any contractual authority to rule upon Management’s action.
