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Title: City of Tacoma and James V. Lindsay
Date: July 9, 1999
Arbitrator: Sandra Gangle
Citation: 1999 NAC 120

 

BEFORE SANDRA SMITH GANGLE, ARBITRATOR

In the Matter of the Interest Arbitration                         )

between                                                                       )

JAMES V. LINDSAY                                                 )                                                           

                                                 Grievant,                     )   ARBITRATOR’S AWARD

                                  and                                             )           ON MOTION

                                                                                    )   TO DISMISS GRIEVANCE

    CITY OF TACOMA,                                              )

                                              Employer.                      )

_________________________________________ )

 

Telephone Hearing Conducted:            June 17, 1999

 

Representing the Grievant                  Renee Paravecchio
                                                         MEIKLE & WOOD, P.C. Attorneys at Law
                                                         1107 ½  Tacoma Avenue South
                                                         Tacoma, WA 98402

Representing the Employer:                Kari L. Sand
                                                         Assistant City Attorney
                                                         City of Tacoma, Washington
                                                         747 Market St., Room 1120
                                                         Tacoma, WA  98109

Arbitrator:                                          Sandra Smith Gangle                                                           SANDRA SMITH GANGLE, P.C.
                                                          117 Commercial Street NE, Suite 310

                                                          Salem, OR  97301

Date of Decision:                                  July  9, 1999

 

BACKGROUND

            This matter comes before the arbitrator pursuant to a collective bargaining agreement between the Tacoma Police Union Local #6, I.U.P.A. and the City of Tacoma, Washington, effective between January 1, 1997 and December 31, 1998.  City Exhibit No. 5.  The Grievant, James V. Lindsay, initiated an individual grievance on or about April 2, 1999, by and through his personal attorney, Renee Paravecchio, of the Tacoma law firm of Meikle & Wood, alleging that the City had violated the agreement when it failed to reinstate him to his position as a police officer, upon his request for reinstatement following a voluntary resignation.  The Police Union has declined to file or pursue a grievance on behalf of the Grievant.[1]  

The City voluntarily participated, along with the Grievant’s attorney, in the selection of an arbitrator through procedures of the Washington Public Employment Relations Commission. The parties mutually selected Sandra Smith Gangle, Arbitrator, of Salem, Oregon, as the impartial arbitrator who would conduct a hearing and make a decision on the grievance.  A hearing date was initially agreed upon for Monday, June 21, 1999. 

However, the City contended that the grievance should be dismissed on procedural arbitrability grounds and requested, as a threshhold matter, that the arbitrator conduct a separate bifurcated hearing on its motion to dismiss the grievance.  The parties stipulated that the arbitrator would have jurisdiction to conduct a telephone conference hearing on the arbitrability issue, prior to taking evidence on the merits of the dispute.

A telephone hearing was conducted on June 17, 1999, at 11:00 a.m.  Representing the City was Kari L. Sand, Assistant City Attorney.  Representing the Grievant was Renee Paravecchio, Attorney at Law.  The Union did not participate. 

The parties had a full and fair opportunity to present evidence and argument on the arbitrability issue.  The Grievant was present throughout the conference call.  The arbitrator took notes of the conference.  Those notes are her own personal property and are not available to any party, organization or individual, by subpoena or otherwise.  Neither the arbitrator nor either of the parties recorded the hearing.

At the conclusion of the hearing, the arbitrator took the matter under advisement.  It was agreed by the parties that, if the arbitrator resolved the Motion to Dismiss in the City’s favor, the matter would be concluded and the arbitrator would have no further jurisdiction regarding the grievance.  If, however, the arbitrator resolved the Motion in favor of the Grievant, a hearing on the merits of the grievance would be conducted.  Therefore, a hearing date was tentatively set by the arbitrator and the parties for July 19, 1999.  That date was subsequently changed to July 23, 1999, due to a scheduling conflict of the City attorney. 

STATEMENT OF THE FACTS

The following facts are taken to be true, for the purpose of deciding the procedural arbitrability issue that is before the arbitrator at this time:

1.            On May 20, 1998, the Grievant submitted a letter, dated May 14, 1998, to the Tacoma Chief of Police.  The letter provided as follows:

This is to inform you of my resignation from the Tacoma Police Department.  My resignation will be effective June 3, 1998 [May 28, 1998 having been crossed out].  I will be turning in all department equipment within the next few days to Property and Finance.                      

I request that during the next two week period, my paycheck(s), to include my final paycheck, be mailed to my residence at [residence address provided].

 

I will be on vacation during this 14 days.

 

Thank you,

[s] James V. Lindsay

 

2.            On August 31, 1998, Deputy Chief James Hairston received the following letter from the Grievant, under date of August 28, 1998:

            Dear Chief Hairston:

 

By this letter, I am requesting to be reinstated in my former position as Police Sergeant with the Tacoma Police Department.  Since I had over 12 years of faithful service, resigned in good standing, and have not yet been gone for 90 days, I would hope there would be no problem with my reinstatement.  Should there be anything else I need to do to accomplish this, please contact me.

 

Thank you in advance for your consideration,

[s] Jim Lindsay

 

            3.            On September 18, 1998, Deputy Chief Hairston responded as follows:

            SUBJECT: REQUEST FOR REINSTATEMENT

            Dear Mr. Lindsay:

 

I am in receipt of your August 28, 1998, correspondence requesting reinstatement to your former position with the Tacoma Police Department.  Your request for reinstatement was reviewed by police administration.  After review and consideration of the matter, it has been decided that reinstatement is not in the best interest of the Tacoma Police Department.

 

            Your request for reinstatement is denied.

 

            Sincerely,

            [s] James O. Hairston

 

            4.            On January 22, 1999, Chief Hairston received a letter, dated January 21, 1999, from Attorney Renee Paravecchio, representing the Grievant.  The letter was also addressed to Bob Sheehan, Vice President, Tacoma Police Union Local 6.  The letter provided in pertinent part as follows:

            Dear Chief Hairston and Mr. Sheehan:

 

I represent [Grievant], . . . [who] resigned his position due to illness.  At the time [Grievant] resigned, he was suffering from serious depression.  [He] did not feel comfortable disclosing or discussing this illness with the Tacoma Police Department. . . .

 

            [Grievant] has recovered from his illness and is fit to return to work. . . .

 

This letter serves as [Grievant]’s request to return to work pursuant to Article 25.11 of the Collective Bargaining Agreement between Tacoma Police Union #6 and Tacoma Police Department.  This article provides that “a LEOFF II employee separated from City service due to an injury or illness shall be reinstated provided the employee is mentally and physically fit to perform the duties of the position.”  [Grievant] has met each of the requirements of this article. . . .

 

5.            On March 11, 1999, Cathy Parker, Assistant City Attorney, wrote to Ms. Paravecchio, in response to the January 21 letter.  By Ms. Parker’s letter, the City denied the Grievant’s request for reinstatement on several grounds, which are summarized as follows:

a.  Mr. Lindsay’s “grievance” was not timely;

b.  Mr. Lindsay’s separation was an administrative act, following his voluntary resignation, which had not been based on illness or injury;

c.  Mr. Lindsay did not demonstrate that his depression had required a resignation; and finally,

d.  The fitness for duty note, which Ms. Paravecchio had enclosed with her January 21, 1999, letter, was unpersuasive.

            6.             On April 6, 1999, the Tacoma City Attorney received a letter, signed by Ms. Paravecchio and Mr. Lindsay, under date of April 2, 1999, which purported to be a formal initiation of grievance, pursuant to Section 5.1, Step 1 of the collective bargaining agreement between the City and the Tacoma Police Union Local Number 6.  The letter contained an allegation that the City had violated the labor agreement “by refusing to return Mr. Lindsay to his former position”.  The letter also provided as follows:

“Please be advised that Mr. Lindsay’s request for reinstatement made on August 28, 1998 was based upon the provision which allows the Tacoma Police Department to reinstate an employee who requests reinstatement and has not yet been separated from the city for more than ninety days.  This grievance is not concerning Mr. Lindsay’s 1998 request for reinstatement.”

 

            7.            On April 16, 1999, Cathy Parker, on behalf of the City, denied the grievance that is referenced in paragraph 6.  The reasons for the denial which were stated alternatively, were:  (1) that the grievance was untimely; and, (2) that the grievance should be denied on the merits.

            8.            On May 6, 1999, the City received a letter from Ms. Paravecchio, dated May 3, 1999, in which she recited that the grievance was being moved to Step 2.  Accompanying the letter was a copy of a letter addressed to the Washington PERC, in which Ms. Paravecchio requested a list of seven arbitrators.

            9.            On May 17, 1999, the City Attorney sent a letter to the arbitrator which provided, in pertinent part, as follows:

The City of Tacoma and Mr. Lindsay’s counsel, Renee Paravecchio, have selected you to serve as arbitrator . . ., provided you are willing and available, of course.  Pursuant to Paragraph 5.2.D of the collective bargaining agreement governing the parties, each party shall share equally in the cost of your fee . . . .  Ms. Paravecchio and I anticipate that presentation of this case will take one (1) day.

 

RELEVANT CONTRACTUAL PROVISIONS

 

ARTICLE 1 – SUBORDINATION OF AGREEMENT

 

It is understood that the parties hereto and the employees of the City are governed by the provisions of applicable state law, the City Charter and City Ordinances.  When any provisions of the City Charter or City Ordinances conflict with or are different than the provisions of this Agreement, the provisions of this Agreement are paramount and shall prevail.

 

ARTICLE 5 – GRIEVANCE PROCEDURE

 

Section 5.1 – Every effort will be made to settle a dispute at the lowest level of supervision possible prior to reducing the dispute to a formal grievance.  Any resolution of a dispute at this level must be consistent with the terms of this Agreement.

 

The term “grievance” is hereby defined as a dispute arising from the application or interpretation of a specific Article of this Agreement that is brought in writing by the grieving party to the attention of the other party within thirty (30) days of the time the grieving party first became aware of the violation.  Such grievances shall be resolved in the following manner:

 

            Step 1:            The aggrieved employee or Union Representative shall submit a written grievance to the Chief of Police, or his/her designee within thirty (30) days of the time the grieving party first became aware of the violation.  The written grievance at this step and at all steps thereafter, shall contain the following information:  (1) a statement of the grievance and the facts on which it is based;  (2) the alleged violation of this Agreement;  (3) the remedy or adjustment sought;  and (4) the signature of the aggrieved employee or Union Representative.   The Police Chief, or his/her designee shall respond in writing to this grievance within twenty-one (21) days of its receipt. . . .

 

            Step 2:  If the grievance is not resolved at Step 1, the Union Representative shall notify the Human Resources Director in writing of submission of the grievance to arbitration within thirty (30) days after receipt of the Police Chief’s, or his/her designee’s written response at Step 1.

 

Any, or all time limits specified in the grievance procedure may be waived by mutual consent of the Union and the City.  Failure to submit the grievance in accordance with these time limits without such waiver shall constitute abandonment of the grievance.

Section 5.2 – Arbitration:

* * * * *

C.            The arbitrator’s decision shall be final and binding; however, the arbitrator shall have no power to render a decision that will add to, subtract from or alter, change or modify the terms of this Agreement, and his (sic) power shall be limited to the interpretation and application of this Agreement.  The arbitrator shall issue a written decision within thirty (30) calendar days of the close of the hearing, or issue a bench decision if mutually agreed to and requested by both parties to this Agreement.

 

D.             . . . .  The Union and the City shall share equally in the cost of services from the neutral arbitrator. . . .

 

ARTICLE 7  -  MANAGEMENT RESPONSIBILITY

 

The Union recognizes the prerogative of the City to operate and manage its affairs in all respects in accordance with its lawful mandate, and the powers or authority which the City has not specifically abridged, delegated or modified by this Agreement are retained by the City. . . .  The direction of its working force is vested exclusively in the City.  This shall include, but not be limited to the right to: . . . (b) . . . . retain employees; . . . provided, however, that items (a) through (g) shall not be in conflict with City ordinances and personnel rules.

 

ARTICLE 25 – SPECIAL PROVISIONS

Section 25.11     A LEOFF II employee separated from City service due to an injury or illness shall be reinstated provided the employee is mentally and physically fit to perform the duties of the position.

 

POSITIONS OF THE PARTIES

 

A.        THE CITY:  The City contends, first of all, that the grievance is time-barred.  It was not filed within thirty days of any reasonable date that can be fixed as the date the Grievant knew his request for reinstatement had been denied. 

            The City asserts that the Grievant was made aware that his request for reinstatement had been denied when Chief Hairston sent him the September 18, 1998 letter, informing him of the denial.  When he failed to file a grievance within thirty days of that September 18 date, therefore, he was deemed to have abandoned his right to grieve, under the clear language of the labor agreement.  The January 21,1999, letter, which was sent by Ms. Paravecchio, was simply filed too late.

The City also contends that the Grievant lacks standing to proceed with a grievance at Step 2 of the grievance procedure.  While the contract provides that the Union or an individual employee can file a grievance at Step One, only the Union can proceed with a grievance beyond Step One.  Therefore, even if the January 21, 1999 grievance letter were timely, the Grievant had no contractual right to proceed to arbitration, after the City denied the grievance at the Step One level.

B.         THE GRIEVANT:            The Grievant emphatically denies that the grievance is time-barred.  The Grievant contends that the date on which his grievance was filed was January 21, 1999.  That was the date on which his request for reinstatement specifically identified that the reason for his resignation, in May of 1998, had been illness or injury.  That was also the date on which he clearly identified the labor contract as the basis on which his grievance was being filed. 

Prior to January 21, 1999, any correspondence which the Grievant sent to the City, requesting reinstatement to his position, was pursuant to Civil Service Rules, rather than the labor agreement.  The September 18, 1998 request had not indicated the reason for his resignation, nor did it cite the labor agreement as the basis on which the Grievant was requesting reinstatement.  Therefore, when the City denied that earlier request, the Grievant did not have to file a grievance within thirty days.

Regarding the standing issue, the Grievant contends that his attorney has stepped into the shoes of the Union for the purpose of filing the Step Two request for arbitration. 

DISCUSSION

The arbitrator’s sole function is to interpret and apply the collective bargaining agreement to the facts of a given matter.  The arbitrator’s jurisdiction derives from the agreement itself, which expresses the mutual intent of the parties. The terms of the agreement constitute the law of the case at hand and are entitled to be enforced as written.

The arbitrator reviews and construes the agreement as a whole, because it is a comprehensive and integrated document.  Its provisions are not isolated units.  Occasionally, there are inconsistencies or other ambiguities that are only revealed when the entire document is studied.  However, if the words of the agreement are plain and clear, and no ambiguity, either latent or patent, is discovered, then the arbitrator is bound to apply the agreement to the facts at hand.

I.  Standing:  The initial issue which the arbitrator must analyze is the standing issue.  The City has argued that the Grievant, as an individual, lacks standing to bring his grievance at Step 2 of the grievance procedure.  If the City is correct, then the arbitrator lacks jurisdiction and must dismiss the matter on that basis.

The City relies on Article 5 of the collective bargaining agreement, which expressly permits an “aggrieved employee or Union Representative” to bring a grievance at Step One, but references only “the Union Representative” as having the right to pursue the grievance at Step 2, which is the arbitration stage.  Therefore, in the City’s view, a necessary party, the union, is not involved in the grievance.  The Grievant has argued, in response, that his personal attorney has stepped into the shoes of the Union, as the Union has declined to represent him in the matter.

The United States Supreme Court, in Vaca v. Sipes, 87 S. Ct. 903, 918 (1967),  expressly rejected the notion that an individual employee has an absolute right to pursue a grievance to arbitration.  The Court accepted the proposition, however, that a union could not arbitrarily or discriminatorily ignore a meritorious grievance, thereby leaving a union-represented employee without any opportunity to obtain a remedy for a contractual violation. The Court held that, where the union has the sole power under the collective bargaining agreement to invoke the higher stages of the grievance procedure and the employee has been prevented from exhausting the contractual remedies by the union’s refusal to process the employee’s grievance, the employee has the right to seek judicial enforcement of the contractual rights, pursuant to Section 301 of the Labor-Management Relations Act. 

The Vaca v. Sipes rationale applies in this case.  The City is correct that the labor contract only permits the union to proceed to Step 2, the arbitration stage.  If the City had simply declined to respond to the Grievant’s individual attorney, when she sent the letter dated May 3, 1999, to the City attorney, requesting arbitration of the Grievant’s claim, the Grievant would have had to go to federal court and file a lawsuit, in order to assert his legal position, as an unrepresented employee, that the contract had been violated when he was not reinstated. 

The City, however, did not raise the standing issue at that point.  The City voluntarily participated with the Grievant’s personal attorney in choosing an arbitrator, after the Grievant, individually appealed his grievance at the Step Two level.  In other words, the City, by its conduct, voluntarily permitted the Grievant to use the Step Two process, even though the union was not representing him. 

The contract expressly permits the parties to waive, by mutual consent, any of the procedural requirements of the grievance procedure.  The arbitrator concludes that the City, by its conduct in choosing the arbitrator, waived the standing issue and agreed to permit the Grievant to proceed to arbitration without the union’s involvement.

II.  Timeliness: The contract requires that a grievance be submitted in writing “within thirty (30) days of the time the grieving party first became aware of the [alleged] violation” of the collective bargaining agreement.  See Section 5.1 Step 1.  A “grievance” is specifically defined as:

“. . .a dispute arising from the application or interpretation of a specific Article of this Agreement that is brought in writing by the grieving party to the attention of the other party within thirty (30) days of the time the grieving party first became aware of the violation.”

            Therefore, both the definition of “grievance” and the Step 1 procedural requirement for filing the grievance expressly reference a thirty-day time limit.  According to the definition of “grievance”, the thirty days begin to run on the date on which the grieving party “first became aware” of the facts that would constitute, in the mind of the grieving party, at least, a violation of some provision of the contract.

            Grievance deadlines are commonly found in collective bargaining agreements.  They are similar to statutes of limitation in court proceedings.  They are designed to provide a reasonable window of opportunity, during which an aggrieved employee or union may raise and litigate alleged violations of applicable contractual rights.  Such deadlines are also designed to provide a reasonable time period during which the responding employer will risk receiving notice that the employer has committed an alleged violation of the contract. 

Thirty days may seem a short time period, but a thirty-day limit is very common in labor agreements.  The short time period is likely premised on the theory that workplace disputes should be investigated promptly and resolved as quickly as possible.  The longer the time passes, the more difficult it becomes for both parties to obtain accurate information from witnesses as to what happened in a particular situation; also, documents may disappear or other evidence may inadvertantly be lost, leaving one or both parties with an inadequate opportunity to prove what really occurred.

In this case, the police union and the employer expressly agreed, in their contract, that a grieving employee would have such a thirty-day time limit for filing a grievance, after the aggrieved employee became “aware” of an alleged violation of the contract.  There is no evidence that the City and the police union had a past history of lax enforcement of the 30-day time limit, by which an extension of time for filing this grievance might be justified. Therefore, the only issue that the arbitrator must decide is whether the grievance, which was filed on April 2, 1999 and is before the arbitrator in this proceeding, was filed within thirty days of the Grievant’s becoming “aware” that the City had committed an alleged violation of the collective bargaining agreement in its conduct toward him.  If he failed to meet the 30-day deadline from such “awareness”, his grievance must be dismissed as untimely.

The City contends that the Grievant became “aware” of the facts giving rise to his grievance when he received the September 18, 1998 letter from Chief Hairston, in which the Chief denied his written request for reinstatement, dated August 28, 1998.  Therefore, according to the City, the Grievant’s thirty days would have been up on or about October 17, 1998.

The Grievant argues, however, that his August 28, 1998 request for reinstatement was based on a Civil Service Rule which allowed reinstatement within ninety days of a resignation, and was not based on the collective bargaining agreement.  Therefore, the City’s response to that letter did not count, with respect to triggering the contract’s grievance time limitation.  In the Grievant’s view, the 30-day time period should only be computed from the date the City responded to his January 21, 1998, letter, because it was in that letter that he informed the City that his resignation had been due to depression, and that he was requesting reinstatement on a specific contractual basis (Article 25.11).  That date, says the Grievant, was the date he received the City attorney’s March 11, 1999 letter reaffirming the City’s refusal to reinstate him.  

 The arbitrator does not agree with the Grievant’s interpretation.  The Grievant’s letter to Chief Hairston, dated August 28, 1998, clearly requests reinstatement to his former position as a police sergeant.  By signing the letter, the Grievant necessarily implied that he was fit for duty in the position.  Even though he had additional information, which had not yet been communicated to the City  – namely, that his resignation in June had been based on the illness of depression – he was clearly “aware” of all the facts that would potentially give rise to a contract violation, if the City failed to reinstate him.  In other words, he knew or reasonably should have known, that by sending his August 28 letter, he was asserting his right, pursuant to Section 25.11 of the collective bargaining agreement, to reinstatement. 

Therefore, when the Chief responded to that letter, with a clear denial of reinstatement, on September 18, 1998, the Grievant had thirty days to file a grievance asserting the alleged contract violation.  It was incumbent on him at that point in time to provide a statement of the facts on which his grievance was based, which would include appropriate information about the illness of depression which had led to his resignation.  Such disclosure, which is clearly required by the contract, would have allowed the City to conduct an investigation and make a reasonable, informed decision as to whether its denial of reinstatement had, in fact, violated the collective bargaining agreement.   

It is reasonable to conclude that the Grievant received the City’s September 18, 1998 letter on or before September 21, 1998.  The grievance was filed on April 2, 1999, clearly more than thirty days after that date.  Therefore, it was untimely and must be dismissed.

AWARD

            For the reasons stated in the foregoing Analysis and Discussion, the grievance is dismissed as untimely.

DATED this 9th day of July, 1999.

                                                ___________________________________

                                                SANDRA SMITH GANGLE
   
                                                         Arbitrator

                                                SANDRA SMITH GANGLE, P.C.
   
                                                         117 Commercial St. NE, Suite 310
   
                                                         Salem, OR  97301

                                                Telephone:     (503) 585-5070
   
                                                         Fax:                   (503) 585-2412

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