By Jim Cline and Troy Thornton
In Village of Skokie, 2020 BNA LA 1311, Arbitrator Sinclair Kossoff found that the employer did not violate the CBA when it denied an Officer’s bereavement pay request. The Union argued that vacation should be converted to bereavement leave when applicable. But the Arbitrator concluded that the Union position was not supported by CBA language.
[Read more…]By Jim Cline and Troy Thornton
In Tualatin Fire and Rescue District, 2020 BNA 1300, an Oregon Fire District implemented a 42-hour work schedule following failed negotiations with the International Association of Firefighters local representing a group of Oregon firefighters. Because the parties had specific CBA language requiring Union agreement for any schedule changes, Arbitrator Kenneth James Latsch ruled that Management violated the agreement when it implemented the new schedule without doing first gaining Union approval and ordered the payment of overtime as an appropriate remedy.
Beginning with the contract covering 2012 through 2015, the parties’ CBA established two work schedules: a 40-hour workweek, and a shift schedule that consisted of 24 hours on-duty followed by 48 hours off-duty (as well as an off-duty Kelly day every ninth shift). During the negotiation of that CBA, TVFR accepted the Union’s proposal to limit schedule changes without first gaining the approval of the Union. In 2019, the parties agreed to a scheduling MOU due to now requirements posed by a change to Oregon law. Following the implementation of the MOU, Management established a new 42-hour work schedule for certain employees.
The Union argued that the implementation of the new 42-hour work schedule, without first gaining the approval of the Union, violated the CBA between the parties. They relied upon the language negotiated for the 2012-2015 contract, which states that changes to the regular schedules would require “agreement between Labor and Management.” Additionally, the CBA contains language stating that employees working 40-hour schedules are owed overtime after working more than 40 hours in a seven-day stretch.
Management attempted to rely on the plain language of both the CBA and MOU, claiming that they were not prohibited from implementing a 42-hour schedule, and met all of the CBA requirements for doing so. The employer also argued that the Union simply did not meet its burden of proving that their actions violated the CBA, which is typically required of the side claiming that there was a violation.
Arbitrator Latsch examined both the CBA and MOU to determine the “plain meaning” of the language contained in the documents. He found that the CBA language negotiated during the 2012-2015 contract cycle, specifically the language stating that there must be an “agreement between Labor and Management,” established stronger protections for the Union than the standard rule of law requiring bargaining to impasse over such issues.
In most cases, contracts deal with the parties’ mutual obligation to negotiate concerning the mandatory subjects of collective bargaining, wages, hours, and conditions of employment. Article 6.2.2 provides much stronger language, however. Article 6.2.2 specifies that pay and benefit accrual may be converted in an alternative workweek only after “agreement between Labor and Management”. In other words, the parties have recognized that there must be an agreement before changes could be made. This is more than the traditional requirement of bargaining to the point of impasse on a particular issue, and it narrows the Employer’s scope of action on any particular issue concerning alternative shift schedules.
Because that language is clear, Arbitrator Latsch found that Management did in fact violate the CBA. In his ruling, he determined that Management had to discontinue its use of a 42-hour schedule and reinstate the schedule in place prior to the change. Additionally, Arbitrator Latsch ruled that employees must be made whole for any hours worked under the 42-hour schedule, which included overtime for any hours worked over 40 in a given week.
It is noteworthy that the union also had a pending ULP complaint. Normally a unliteral change would be the subject of a ULP and absent clear “waiver” language, they would be successful on such a complaint on these facts. Presenting the issue here to an arbitrator did provide the union one additional remedy that may or may not have been extended from the ULP process — it was able to get overtime for hours worked under the unilaterally implemented schedule that exceeded the default under the CBA. This reflects the principle and practice of arbitrators to always find some type of meaningful remedy for any breach of contract.
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By: Jim Cline and Clive Pontusson
In Department of the Airforce, Arbitrator John Nicholas determined that a government employer had a right to set firefighter mustache standards because they had an effect on the employer’s ability to give fitness tests. The Union had filed a grievance because it felt the Department of the Air Force had applied the wrong rules under the CBA. The Arbitrator agreed that this was true, but also found that the union’s requested relief would incur additional costs—as a result, the best remedy was the employer simply applying the correct rule. [Read more…]
By: Jim Cline and Clive Pontusson
In Addeo v. Philadelphia Firefighter and Paramedic Union, a firefighter sued both the City of Philadelphia and his union for violating his due process rights and his right to fair representation. Addeo had been fired following a DUI, and when the Union decided not to pursue his grievance, he filed a personal lawsuit that accused both the City and the union of misconduct. However, a federal judge dismissed all of Addeo’s lawsuit, finding that both the City and the Union had behaved properly.
By: Loyd Willaford and Clive Pontusson
In Addison v. Sumter County Sheriff’s Office, a federal court in South Carolina ruled that a Sheriff’s Deputy had provided enough evidence to show that her 3-day suspension may have been in retaliation for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC). Even though the Sheriff’s Office argued that the time between her Complaint to the EEOC and her suspension for insubordination was too long to make a connection between the two events, the court disagreed and found that Addison’s case should be brought before a jury. [Read more…]
By: Loyd Willaford and Matt Baker
In Forest Preserve District of Cook County v. Fraternal Order of Police Lodge No. 166, two Forest Preservation sergeants challenged the Forest District’s decision to withhold overtime opportunities from them. The sergeants attempted to work shifts during which only one other sergeant was scheduled. A previous order by the District indicated that two sergeants would always be scheduled for these shifts. Relying on this policy, the sergeants submitted their names for overtime shifts but were denied. The sergeant’s Union challenged the District and an arbitrator issued the sergeants an award. The District appealed and an Illinois appellate court upheld the arbitrator award.
By: Loyd Willaford & Sarah Burke
In Koenig v. City of New Haven, a disabled police officer alleged he had been discriminated against after he was suspended with pay following racist and sexist remarks he allegedly made. The city argued that the suspension was not an adverse employment action and, even if it were, it was not done because of the officer’s disability. A United States District Court in Connecticut found the suspension was an adverse action, but that there was no evidence to show that the City suspended the officer because of his disability. The Court dismissed the officer’s claims.
By: Jim Cline and Geoff Kiernan
In City of Ada, Arbitrator Zane Lumley ruled that there was just cause for the termination of an Ada, Oklahoma firefighter who engaged in a tirade of angry and offensive Facebook posts in response to a police officer arresting his wife for public intoxication. Ultimately, the Arbitrator ruled that termination was proper because the firefighter showed a clear disregard for the City’s anti-harassment policy and his actions had made it very difficult for him to work with the Ada police department in the future.
By: Jim Cline and Geoff Kiernan
In Town of Stratford (Connecticut), the City attempted to vacate an arbitration decision that had reinstated a police officer who was discharged for lying to an independent neurologist by withholding medical information about his seizures and alcohol abuse. The City argued that the police officer must be fired because there is a public policy against intentional dishonesty in connection with police employment. The Court agreed that while there was a public policy against intentional policy officer dishonesty in connection with employment, the dishonesty at issue here was not so extreme as to make the arbitrator’s award a violation of public policy.
By Erica Shelley Nelson and Sarah Burke
In Yahnke v. Kane County, an Illinois deputy sheriff was terminated after he continued to hold a second job despite being asked to discontinue the work. The deputy sheriff believed the termination was due to his potential run for Sheriff and his political affiliation. The Seventh Circuit agreed, finding the deputy sheriff was entitled to a trial.
