By: Jim Cline and Jordan L. Jones
In Clark County Sheriff , the Arbitrator held the employer did not violate the CBA when it denied a Ohio deputy sheriff’s compensatory leave. The Arbitrator stated that the employer had proved that it did not have “sufficient manpower” available at the time that the deputy had requested compensatory leave in compliance with the CBA.
The deputy had requested for his compensatory leave to start at 6:00 p.m. at the beginning of a 3:00 p.m. to 11:00 p.m. shift. The deputy had believed that the CBA allowed authorized leave for two persons per shift. The deputy’s shift sergeant stated that she did not think it would be a problem to take compensatory leave at 6:00 p.m., but that the deputy should nonetheless check in with her around 6:00 p.m. to ensure leave was still appropriate. Due to other deputies responding to various calls, the sergeant did not approve the deputy’s leave until 8:27 p.m. and a grievance was filed.
The Union contended that “the clear language of Section 36.6 [of the CBA] alone, provides support for its position.” The Union argued that when the deputy reported for duty he observed that there was one deputy off on leave and that “Section 36.6 specifically provides that among the two (2) divisions entitled to have two (2) Deputies on leave per shift is the Road Patrol Division.” The Union also argued that “Section 36.6 constitutes a ‘guaranty’ that ‘two (2) people per shift per division’ are required to be granted leave.”
The employer on the other hand argued that Section 20.2 of the CBA provides that “sufficient manpower” needs to be available to permit the County compensatory leave and at 6:00 p.m. on the night in question, there was not “sufficient manpower.” The employer contended that if it had approved the deputy’s leave request at 6:00 p.m., there would have been only one other deputy available to respond to calls because various deputies were actively engaged in responding to calls.
The Arbitrator stated that “[s]ince . . . Article 36.6 deals with staffing with the Sheriff’s Office, it would be unreasonable to conclude that the Section provides a guaranty of leave for ‘two (2) people’ per shift per division.” The Arbitrator further stated that “[i]n the absence of clear and unequivocal language to that effect, I cannot conclude that Section 36.6 provides a guaranty of leave for two (2) persons. This conclusion is supported by . . . Section 20.2 . . . .”
The arbitrator noted that “[t]he first sentence of Section 20.02 provides how an employee may ‘bank’ comp time hours . . . [and that] if ‘sufficient manpower is available to permit comp time leave’, such leave shall be granted.”
The Arbitrator stated that because CBA Sections 36.6 and 20.2 conflict, the following contractual principle applies:
It is axiomatic in contract construction that an interpretation that tends to nullify or render meaningless any part of the contract should be avoided because of a general presumption that the parties do not carefully write into a solemnly negotiated agreement words intended to have no effect . . . . The contractual provisions in this dispute require both Sections 36.6 and 20.2 are to be given affect.
The Arbitrator found that the employer could deny compensatory leave to a deputy if “sufficient manpower” were not available. The arbitrator held that the employer “exercised good faith in determining that ‘sufficient manpower’ was not available at or shortly before or after 6:00 p.m. to grant comp time leave to the Grievant” in compliance with the CBA. The Arbitrator stated that had the shift sergeant “approved the Grievant’s leave at or shortly before or after 6:00 p.m., only one (1) other Deputy would have been available to respond to calls within the County.”
This case provides a lesson on the importance of careful review and drafting of contract proposals. Unfortunately, is not unusual to have two separate contract clauses in apparent conflict. Sometimes in negotiations parties negotiate on related subjects at different times and by amending different articles of the contract. Negotiators should take care to ensure that various sections of the contract are harmonized.
Another lesson here is that when there is an ambiguity in public safety contracts, arbitrators will sometimes give significant weight to management operational interests in addressing competing interpretations. In this case for example, the arbitrator seemed concerned about the employer interest in maintaining appropriate staffing levels and that concern ultimately controlled his conclusion.
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