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Title: City of Tacoma and James V. Lindsay
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 Representing
the Employer:
Kari L. Sand Arbitrator: Sandra Smith
Gangle SANDRA SMITH GANGLE, P.C. 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
SANDRA SMITH GANGLE, P.C.
Telephone: (503)
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