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Title: Reno Police Protective Association and The City of Reno
Date: July 2, 1999
Arbitrator: David Robinson
Citation: 1999 NAC 127

FMCS No. 90722-12635-A

ARBITRATION PROCEEDINGS

BEFORE DAVID K. ROBINSON, J. D., FMCS ARBITRATOR

In the Matter of Grievance Arbitration between       )

RENO POLICE PROTECTIVE                            )     Issue:   Transfers

ASSOCIATION                                                    )

            The Association,                                         )

and                                                                         )

THE CITY OF RENO,                                          )

            The City.                                                    )

______________________________________  )

Date and Place of Hearings: City of Reno Offices, Reno, Nevada, September 29 and 30 and November 18 and 19, 1998.

Appearances:

            For Association:  Michael E. Langton, J.D.,
                                       801 Riverside Drive,
                                       Reno, Nevada 89503;

            For City:  Richard M. Gonzales, J.D.,
                            PO Box 1900, Reno,
                            Nevada 89505

Grievants:  Ronald P. Dreher and David Kuzemchak for themselves and Derek Cecil; Pam Lodge, Jeff Freelove, Jay Brown, and Tom Yturbide.

Witnesses:

            For Association: Ronald P. Dreher, Grievant, Police Officer, President of the Association; Stephen G. Turner, Retired Former Sergeant in Reno Police Department (sometimes “RPD”); David Philip Jenkins, Reno Police Officer; Stephen Donald Pitts, Reno Police Lieutenant, Detective Division; Patricia L. Pointer, Reno Police Officer;  Glenn Withnell, Reno Police Officer; David Kuzemchak, Reno Police Officer.

            For City: Reno Chief of Police Jerry Hoover; Reno Deputy Police Chief (Sometimes

“D. C.”) Chief James D. Weston; Sergeant James A. Forbus of Washoe County Sheriff’s Department and Consolidated Narcotics Unit (“CNU”); Robert M. Galli, Reno City Deputy Chief; Lt. Richard Ross (Washoe County), formerly of CNU.

Other Stipulations:

            1. Post Hearing Briefs are Due on February 1, 1999 (by later stipulations delayed to March 15, 1999);

            2.  If damages are awarded, counsel will endeavor to agree on damages.  If no agreement is reached, Arbitrator shall retain jurisdiction as to damage award.

////

I.          ISSUE AS STIPULATED BY THE PARTIES

DID THE CITY OF RENO POLICE DEPARTMENT VIOLATE THE LABOR AGREEMENT BY ITS ACTIONS DURING REORGANIZATION AND TRANSFER?  IF “YES,” WHAT IS THE REMEDY?

II.         ARTICLES OF COLLECTIVE BARGAINING AGREEMENT  (“CBA” OR “AGREEMENT”) AND STATUTES CITED BY PARTIES

Local Government Employee-Management Relations Act.  NRS (Nevada Revised Statutes) 288.150 Negotiations by employer with recognized employee organization; subject of mandatory bargaining; matters reserved to employer without negotiation.

            .  .  .

            2.         The scope of mandatory bargaining is limited:

            .  .  .

                        (g) Total hours of work required of an employee on each workday or workweek.

                        . . .

                        (k) The method used to clarify employees in the bargaining unit.

3.         Those subject matters. . . . and which are reserved to the local government employer without negotiation include:

            (a)        Except as provided in (not applicable here) . . . the right to hire, direct, assign or transfer an employee, but excluding the right to assign or transfer an employee as a form of discipline.  (Emphasis added).

                        . . .

                        (c)        The right to determine:

                        (1)        Appropriate staffing levels and work performance standards, except for safety considerations;  

                        . . .

                        (3)        The quality and quantity of services to be offered to the public; and

                        (4)        The means and methods of offering those services.

NRS 288.270 Employer or representative; employee or employee organization.

            1.         It is a prohibited practice for a local government employer or its designated representative willfully to:

                        (a) Interfere, restrain or coerce any employee in the exercise of any right guaranteed under this chapter.

                        . . .

                        (c) Discriminate in regard to hiring, tenure or any term or condition of employment to encourage or discourage membership in any employee organization.

                        . . . 

                        (e) Refuse to bargain collectively in good faith with the exclusive representative as required by NRS 288.150. Bargaining collectively includes the entire bargaining process, including mediation and fact-finding, provided for in this chapter.

NRS 288.380.  Any controversy concerning prohibited practices may be submitted to the board [local government employee-management relations board].

ARTICLE NO. 2.  RECOGNITION

                        The City recognizes the Association and its agent, as . . . the exclusive bargaining agent, for purposes of establishing salaries, wages, hours, and other conditions of employment . . .

ARTICLE NO. 4.  RIGHTS OF MANAGEMENT

                        (a)        Those subject matters which are not within the scope of mandatory bargaining and which are reserved to the City without negotiation include:

                                    (1)        The right to hire, direct, assign or transfer an employee, but excluding the right to assign or transfer an employee as a form of discipline.

                                    . . .

                                    (3)  The right to determine:

                                                (I)  Appropriate staffing levels and work performance standards, except for safety consideration:

                                    . . .

                        (c)        The provisions of this Article include without limitation and the provisions of this section recognize and declare that ultimate right and responsibility of the city to manage its operation in the most efficient manner consistent with the best interests of all its citizens, its taxpayers and its employees.

                        . . .  .

ARTICLE NO. 5.  NON-DISCRIMINATION:

                        (1)        The City will not interfere with or discriminate in respect to any term or condition of employment against any employee covered by this Agreement because of membership in or activity as provided for in this Agreement on behalf of the members of this bargaining unit, nor will the City encourage membership in another employee organization.

ARTICLE NO. 7.  HOURS OF WORK

ARTICLE No. 24.  SPECIAL PAY PRACTICES:

                        (a)        Shift Differential Payments

                        . . .

                        (d)        Court Appearances

                        . . .

                        (g)        Investigator Pay

ARTICLE NO. 27. WORKING RULES

            The city may adopt and all rules and regulations not in conflict with Nevada revised statues . . . and this agreement.  The Police Chief shall have full authority in matters of training, safety, health and sanitation affecting employees on the job and he shall consider such suggestions and recommendations pertaining to these matters as may be from time-to-time presented by the employees or the Association.

ARTICLE NO. 29. DISCIPLINE / DISCHARGE

            (a)        That all discipline including discharge shall be for just cause.  .  .  .

ARTICLE NO. 30.  AMENDING PROCEDURES

            If either party desires to modify or change this agreement it shall  . . . give written notice to the other party of amendment, in which event the notice of amendment shall set forth the nature of the amendment or amendments desired.  . . .

ARTICLE NO. 31.  SAVINGS CLAUSE

                        (a)        This Agreement is the entire agreement of the parties . . . [T]he City or the Associate may request meetings relating to the administration of this Agreement when questions arise necessitating such meetings.

                        (b)        In the event the City intends to institute a change during the term of this Agreement of a subject which falls within the scope of mandatory bargaining as outlined in Subsection 2 of NRS 288.150, the City recognizes its duty to bargain with the Association over said change.  Disputes arising under this Article shall not be grievable under Article 28 of this Agreement, but shall be submitted to the Nevada local Government-Employee-Management Relation Board of resolution.

                        . . .

ARTICLE  NO. 33.  SENIORITY / LAYOFF

                        (a)        In the event of layoff or reduction in force due to lack of funds or lack of work, permanent employees will be laid off according to seniority within the classification being reduced starting with the least senior employee.

                        (b)        Subject to Civil Service regulations, employees shall be given opportunity to transfer in lieu of layoff, to any other positions for which he/she is or has qualified and is more senior than the least senior employee in that class.

                                    For purposes of this Article, seniority of permanent employees shall commence on their date of hire, and include any break in employment with the City not exceeding twelve (12) months.

                        . . .

ARTICLE NO. 36.  LABOR-MANAGEMENT COMMITTEE

                        The parties agree to the establishment of a permanent labor-management committee.  The Committed shall include three (3) members designated by and representing the Police Department Administration and three (3) members designated by and representing the Association, who shall serve without loss of compensation.  .  .

                        Change in Department work rules will also be discussed in this forum and recommendation by the committee shall be considered by the Chief.

III.  POSITIONS OF THE PARTIES

            City of Reno for Reno City Police Department (“RPD”)

            Within its reserved rights arising in the Collective Bargaining Agreement (“Agreement”) and within its rights under the applicable Nevada Revised Statutes, (“NRS”) the RPD under its new Chief, Chief Hoover, lawfully carried out a reorganization.  The reorganization was mandated by an audit report commissioned by the City Manager on Behalf of the Reno City Council (“Council”).  The audit was not published until January 1998.  Joint Exhibit “1.”  After a nationwide search for a new Reno City Police Chief, Chief Jerry Hoover was appointed in July 1997.  The audit was underway before the chief was selected.

            The RPD made its organization changes based on billets not on the identification of individuals filling the billets.  While the RPPA will claim that Detectives Dreher (sometimes “Dreher”) and Detective David Kuzemchak (sometimes “Kuzemchak”) were wrongfully transferred as a discriminatory or vindictive means of retaliating for their RPPA involvement of Dreher and Kuzemchak.  The position urged by the RPPA cannot survive scrutiny.  Because of the Report ordered by the Council, the RPD had to be reorganized to get more officers into Patrol.  There is no probative evidence to support any discrimination or retaliation or violation of the Agreement.  To insist that Dreher and Kuzemchak were singled out for transfer because of their union activities is simply wrong and will be emphatically denied by Chief Hoover.  RPD witnesses and witnesses from the Washoe County Sheriff’s Department will support the non discriminatory manner of selection of transfers.

            Neither Chief Hoover nor D. C. Weston, the Detective’s Commander and Acting Chief preceding Chief Hoover were out to get even with Dreher or Kuzemchak.  Neither Dreher’s nor Kuzemchak’s positions in or involvement in the RPPA had anything to do with the their transfers.

            Nothing in the Agreement requires that the RPPA be consulted about the transfers that occurred in this case.  Yes, Article 2 recognizes RPPA as agent but Article 4 to the Agreement and NRS 288.150 make clear that the right to assign or transfer is a right reserved to the RPD without any negotiation with the RPPA.

            The RPPA can show no conduct constituting violation of Article 5 of the Agreement.  The RPPA is mistaken in claiming any violation by the RPD of the Special Pay Practice Provision in Agreement Article 24.  For Article 24 to apply, the RPPA must first prove that the RPD violated the agreement and no sufficient proof was proffered or received in evidence.  Nothing in the General Order of 4/7/60 can be construed to require RPPA to have waited to transfer Dreher, Kuzemchak, or any other officers until a shift rotation.  The needs of the RPD and the compulsion arising from the Audit were controlling.

            Reliance by the RPPA on Agreement Article 29 (Discipline) is misplaced.  The reassignment had nothing to do with discipline.  The RPPA cannot show that the transfers had any disciplinary element.

            Agreement Article 33 (Layoff/Seniority) is triggered if there is a reduction in work force.  There was no reduction in the working force only reassignments to meet the mandate of the Audit.

            The case made by the RPPA is strictly circumstantial as RPPA acknowledged in its opening statement.

            The RPD denies each alleged violation of the Agreement.  Dreher’s transfer was consistent with the previsions of the Agreement, City Exhibit “1.”  Officer Dreher was most senior in his unit.  Kuzemchak volunteered to leave his special assignment and he was also most senior.

            The right to assign is reserved to the RPD under Article 4(a)(1).  RPPA can show nothing to support violation of Article 4.  Its mirror language is NRS 288.150.  The right to assign or transfer an employee is not within the scope of mandatory bargaining and the right is reserved to the RPD.

Reno Police Protective Association (“RPPA”)

            Certain involuntary transfers in the first half of 1998 triggered this grievance.  Before the transfers, Chief Hoover had told the RPPA that changes following the Audit Report would be gradual.  Historically, transfers of line personnel (officers covered by the Agreement) had been made at prescheduled “shift bids” and had occurred in June and December effective in July and January.  Officers Dreher, Kuzemchak, and other Detectives enjoyed compensation enhancements in their detective positions and had been assigned to their positions under a “3+1” or “1+1” tenure assignments under long established and operative RPD General Orders.  But they were transferred to Patrol suddenly, not gradually.  Involuntary transfers from the their billets back to Patrol were premature.

            Because of the premature transfers, the grievants lost wages and benefits, higher overall compensation and, consequently, higher allocations to their benefit plans including the Public Employees Retirement System (“PERS”).

            Kuzemchak, Dreher, and five other officers were prematurely removed from their special assignments and should receive compensation for their losses.

            The involuntary transfers of Dreher and Kuzemchak instigated by Chief Hoover and Deputy Chief Weston were for discipline reasons; and were discriminatory and retaliatory.  Dreher and Kuzemchak have been active in RPPA.  Ron Dreher is President of RPPA and took a leading role in opposing the appointment of Jerry Hoover to be Chief of Police.

IV. FACT SUMMARY

            The Reno City Council (“Council”) began a nationwide search for a new Reno City Police Chief in early 1997.  The RPPA was invited to and did participate in the selection process.  Jerry Hoover, the man finally selected by the Council in July 1997 was not the choice of the RPPA.  The RPPA had supported another man and vociferously and in newspaper ads in the Reno-Gazette Journal, Northern Nevada’s principal newspaper opposed the selection of Jerry Hoover.  Officer Ron Dreher, a grievant here, then and still heads the RPPA as its President.  Officer Dreher had run background checks on the candidates and emphatically opposed the selection of Chief Hoover.  Officer Dreher and the RPPA supported another out of state candidate.  Both Jerry Hoover and the candidate favored by RPPA were from out of state.  After his appointment as Chief, Chief Hoover and Officer Dreher, resolved to put the episode behind them.  RPPA President Dreher stood after the hiring was announced and said the RPPA would support the Chief now that he was hired.  As a witness at the hearing, Chief Hoover denied having participated in a meeting with the County Manager and a D. C. in which it was mentioned that the RPPA should be looked at for its support of the other candidate.  (Tr. 357).

             Chief Hoover replaced James Weston who, as a Deputy Chief, was the Acting Chief of Police for Reno City.  In the first phase of the reorganization under Chief Hoover, Deputy Chief Weston was assigned as Division Commander of Detectives and, before their transfer, including Detectives Dreher and Kuzemchak.

            Before Chief Hoover’s selection, the Council, through the Reno City Manager, Charles McNeely, had ordered an audit by a California firm to review the strengths and weaknesses of the Reno City Police Department (“RPD”).  Joint Exhibit 1 (Final Report for the Police Department Performance Audit).  The Report  (“Report” or “Audit”) was issued in January 1998, a few months after the appointment although preliminary drafts were reviewed by Chief Hoover before the issue date.

            Within the lengthy audit report at its page E-3 are these statements:

As currently staffed and deployed, the basic Patrol force is understaffed compared to workload with staffing workload imbalances occurring across all three Patrol districts and during most of the daytime and evening hours prior to midnight.  Indeed, under the current team structure and schedule, our analysis indicates that an additional 37 officers are needed in Patrol to handle call for service workload and provide basic time for community oriented policing activities.  (Emphasis added).

 Joint Exhibit 1, Volume I, Pages E-3, 29, 30 and 31.

            As to investigative services, the report noted:

Investigative services are adequately staffed and have the capacity to absorb some additional workload without commensurate increases in staffing.  Opportunities exist to reallocate staff between and among investigative units to better balance workload with staff, and as workload increases, the Department should pursue use of non - sworn staff in selected investigative functions before pursuing additional sworn staff.  (Emphasis supplied).

Joint Exhibit 1, Vol. 1 Page E-4, pages 39 - 46).

            The principal grievants were detectives.  During the reorganization of the RPD following the Audit Report, the grievants were transferred.  Grievances were filed.

            General Order (“GO”) 4/760.000 concerning Departmental Transfers/Special Assignments was received into evidence as Association Exhibit 7.  The approving Deputy Chief was Jim Weston and Chief Hoover re-issued the GO on October 8, 1997.[1]  The GO is almost the mirror image of a previous GO on the same subject except that the “Canine Unit” had been added to “indefinite Term” assignments within the past few years.  The general order shows an initiation date of January 29, 1991.  Among other things, the GO includes:

F.         “Three plus One” and “Indefinite Term” Assignments

            The length of time officers remain in a specialty assignment or [sic] generally governed by whether the assignment is classified as “Three plus One” or “Limited Term”.  Employees may request a voluntary transfer out of a specialty assignment before the completion of the term of assignment.  The division deputy chief may approve or deny a voluntary transfer request based on the needs of the department.

1.         Three plus One Assignments (Sometimes ‘3 + 1”).  Three plus one assignments are for a period of three years with an extension of a fourth year at the discretion of the division deputy chief.  All specialty assignments are three plus one other than those designated below.  Each division deputy chief may hold over an additional year beyond the four years (three plus one) up to 40 percent of the specialized assignment portions in his/her division.

2.         Indefinite Term Assignments:  Indefinite term assignments have no specific duration limit.  The division deputy chief will make an annual determination whether to extend the assignment for another year.  The determination will be based on the performance of the employee and/or the needs of the departments.  Some indefinite term assignments include: (4 categories including Major Crimes Unit (“MCU”). 

 

            The determination of which assignments shall be “Three plus One” or “Indefinite Term” will be made by the Chief of Police.

           A General Order (sometimes “GO”) bearing the same number (4/760.000) was reissued on October 4, 1995 when D. C. Weston was Acting Chief.  City Exhibit 4.  The Three Plus One and year-to-year category are there in Category “G” whereas they are in “F” in the 1998 reissue.  In the 1995 order, there is a line that time in assignment is at the discretion of the Division commander.  Whereas in the 1998 order, the determination of which assignment shall be Three Plus One or Indefinite will be made by the Chief of Police.  Differences between the two exhibits are insignificant.

            The general orders with their tenure position factors had their genesis in the 1991 and 1993 inter-office memos initiated by Sgt. Turner to Deputy Chief Jim Weston.  Both memos dealt with problems arising from detective rotation, a need for increased tenure for detectives and a need to retain qualified detectives by a tenure system.  Association Exhibits 5 and 5.1.  Retired Detective Sergeant Stephen G. Turner testified that the first applicable General Order was adopted by management right since the RPPA seemed reluctant to approve it.  Association Exhibits 5, 5.1, 5.2 5.3, 7 and 8 reveal the evolution and continuing use of the special assignment and tenure protocol, the shift bid rotation dates and the re-use of GO 4/760.000 as the reference number.

            Historically, since the first GO and successor reissued GOs, changes in job or position assignments had been twice per year at the shift bids in December of each year for assignment changes to be effective in January and in June of each year for assignment changes in July.  (Transcript 51, 77, 78 and 418). The shift bid changes and dates and tenure in position have come to be accepted and relied upon by RPD personnel including detective and command personnel.  For example, on February 12, 1998 before the reissued GO of April 16, 1998 (Assoc. Exhibit 8), Deputy Chief Weston issued an e-mail to “everyone” entitled “Rumor Control Bulletin #1.”  Association Exhibit A-15.  There, D. C. Weston said, among other things, that there were no mass transfers planned now or in the next bid, made reference to a new transfer policy that would have some new rules and reassured sworn officers again that there was no mass rotation at the next bid [shift bid].  Mid “shift bid”, changes historically were limited to positions opening up from resignations, retirement, or terminations.  (Emphasis added).

            There was no mention of the proposed rule changes affecting transfers or assignments made by Chief Hoover or any command staff at the February 11, 1998 Labor/Management Meeting.  But there was mention made under an entry for D. C. Johns that there had been a first run through of the GO on 12-18-97 with the RPPA.  That changes in the GO were pending was known to R.P.P.A. Association Exhibits 9, 10, and 11 disclose writings in October 1997 between D. C. Weston and RPPA President Dreher concerning proposed GO changes.

            On January 16, 1998, Deputy Chief Galli in a 2 page Email Memorandum to “Everyone” summarized the audit’s highlights.  He was reacting to a newspaper article appearing that day.  Among other things, D. C. Galli announced that the command structure would be reduced over 3 - 5 years and that it was recommended in the audit that 37 positions be assigned to Patrol.  “Obviously,” he wrote, “any additional positions to Patrol will require personnel from other assignments.  The Chief anticipates this process to occur over the next 3 to 6 months with some personnel / program changes at shift change [a.k.a. bid shift].”  Association Exhibit 11.

            On February 3, 1998, Chief Hoover issued a memo to “Departmental Personnel” about Departmental Reorganization.  Association Exhibit 41.  There he identified Phase II of the Reorganization as February 1998 to June 1998 and as “Transition to New organizational structure.”  Deputy Chiefs were reassigned.  No mention was made of specific anticipated line officer transfers although that the transfers would be occurring was clear. The Chief wrote:

During the next four months, further analysis of the audit will be completed and appropriate recommendations implemented.  This includes identifying sworn positions which can be reallocated to Patrol.  (Emphasis supplied).

. . .

Phase III- June 1998 to December 1998:  Implementation of additional restructure plan.

 

Readjustment of command assignments, reassignment of supervisor and line personnel, and the implementation of additional organizational, procedural, and policy changes.  (Emphasis supplied).

            Then, on February 17, 1999, D. C. Galli’s transmitted at 4:27 PM an Email to “Everyone” entitled Reorganization - Phase II continues.  (Association Exhibit 16.1).  There, specific billets (no mention of officers’ names) to be reassigned to Patrol were identified.  Two billets were to be reassigned from Detectives / Backgrounds and one from Detectives / CNU (but none from Detectives / MCU or Robbery / Homicide).  The note also included information that specific dates had not been set; some changes may occur within two weeks, and all reassignments will occur by the June shift change. 

            Concerned Employees wondered what could happen to them and when (Some of the events will be described later).

            Detectives Pointer and Withnell in Detectives / Backgrounds, for example, took action.  Detective Pointer went to her supervisor, Sergeant Holladay, and asked if she might be transferred.  He said he had no idea who would be transferred but be prepared to arrange to transfer.  (Tr. 257).  Next, realizing she had successfully tested for Detectives and was promised a 3+1 special assignment, she located the announcement document of October 10, 1995 from which she applied and tested for financial crimes and took it to Sergeant Holladay.  (Association Exhibit 6).  When nothing happening, Detective Pointer then went to Lieutenant Ditts, recently assigned to Detectives.  Lieutenant Ditts took the matter to D. C. Weston.  Shortly after, Detective Pointer was asked into D. C. Weston office.  He was then looking through seniority lists and said he would have to evaluate where she stood.  Later During the conversation, D. C. Weston told her she was promised the position and would stay in detectives.  (Tr. 260). 

            Detective Glenn Withnell, also in Detectives / Backgrounds, thought that if they wanted to “dump him out” because of last in - first out seniority, that was probably right.  Since only 2 people were in Detectives / backgrounds (Patsy Pointer and Glenn Withnell) Detective Withnell testified that he thought he would be going out.  He checked with Sergeant Holladay and found that he would be going back to Patrol.  In checking further with Sergeant Holladay, he learned that if he stayed, the most senior man, Officer Edgington would have to go.  Detective Withnell knew instantly that Sergeant Holladay wanted to keep the expertise of Detective Edgington.  Detective Withnell reasoned he would not face a comfortable tenure there if he were responsible for having Detective Edgington’s expertise removed from the department so he “volunteered out.”  He signed a memorandum authenticating his transfer on February 24, 1996.  (Association Exhibit 39).

            At the February 24 1998 meeting called by Chief Hoover, he [Withnell] told the Chief that he was not actually volunteering just fighting going back to Patrol.  He was told then to check with D. C. Weston.  A similar disclaimer of volunteering occurred with Detective Kuzemchak from Detectives / CNU at the same meeting (more discussion about Kuzemchak later).

            Detective Withnell was transferred back into Detectives a few months later at the June 1998 shift bid.  He found out about an opening in Detectives from hallway gossip and by checking with people and knew that Officer Jenkins who had “volunteered out” of Robbery / Homicide was leaving in June.  He went back to Sgt. Holladay and was told he was back on top of the list.  Detective Withnell is now backing in and Sgt. Holladay is again his supervisor.

          The RPPA learned on February 17, 1998 that changes were going to occur within two weeks.  Shortly after, Chief Hoover transmitted an e-mail to “Everyone” concerning Off Duty weapons and trainees.  In the memo, the Chief said “some of you have advised me that one RPPA member is telling people that I intend to expand this [off duty weapons rule] to all officers.  This is total garbage and if he is saying that to you, he is lying!”  RPPA President Ron Dreher and Officer Jenkins soon after met with Chief Hoover and discussed, among other things, the lying accusation, wanting to find out who allegedly lied.  In the same meeting, Officer Dreher in his personal role and not his RPPA role said he had heard he was being transferred involuntarily from the MCU.  At the meeting President Dreher told the Chief that what he was saying and what his Deputy Chiefs were saying was contradictory and needed clarification.  During this interchange on February 20, 1999 President Dreher informed the Chief that he [the Chief] was not considering the financial impact on employees.  All involuntarily transferred officers in investigator assignments would lose substantial promised pay and benefits.  Chief Hoover then said that no detective from MCU was being transferred and that the Deputy Chief Weston’s  (Detective Division Commander) memorandum identified two background and one CNU detective for transfer. 

            On February 20, 1998, both Chief Hoover and RPPA President Dreher issued separate e-mail messages inviting people to attend a February 24, 1998 meeting to discuss the situation.  Assoc. Exhibits A 22 and A 23.  At 9:00 A.M. on February 24, many employees from among Command Staff, the RPPA and non-sworn civilian employees were there.  The Chief limited the meeting to 4 matters and said there was no room for debate.  (Tr. 87, 89).

            At the meeting, President Dreher pointed out that for over two years, the RPPA in Labor-Management Conferences had complained that Patrol needed more staffing.  RPD command staff in the labor/management meetings said that they were backfilling Patrol slots and using uniformed special assignment officers, Downtown Tax Team Officers and Community Action Team officers in severe times.  The RPPA’s statements voiced through President Dreher were backed up by Deputy Chief Galli.  (Tr. 89.)

            RPPA President Dreher asked the Chief about why transfers were being made all of a sudden in the middle of shift bid and warned the Chief of a violation of the CBA or the General Order that he [Chief Hoover] had recently signed.  Later that same day (February 24, 1998), Chief Hoover e-mailed “everyone” as follows:

[A]ll of those people affected will have their personal commitments accommodated.  If that means . . . if they want to apply for another special assignment.  If that means they work a certain shift . . . so be it. They deserve that break.  This is to be worked out.  .  .  .  Also, if they are involuntarily transferred to Patrol, we will accommodate them if they want to apply for another special assignment.  This is to be worked out soon and all will be notified.  (Emphasis added).

The bottom line here is that I have been told by every Patrol employee group that I have met with that we need more cops on the street.  That is why this decision is being made.  I agree with them and I am committed to doing just that. . . . [R]on Dreher will be forwarding a written notice outlining the alleged contract violations because of these moves.  We will research all points made and notify all of you what we find.  Assoc. Exhibit 24.

            Chief Hoover said at the meeting that the speed up of reorganization and transferring people into Patrol was for reasons of “officer safety.”  The term  “officer safety” was not defined or clarified by explanation during the testimony except to the effect that summer was approaching and more people had to be in Patrol by then.

            Later in February 1998, D. C. Weston held a meeting of the MCU in the Detective Division’s Conference Room.  Sergeant Partyka and all six investigators assigned to MCU were there.  There, D. C. Weston announced that one billet from the total of billets in MCU and Robbery / Homicide would be taken out.  He then said that it was a MCU billet would go.  Detective Jenkins and others vehemently expressed concerns about the reorganization.  Detective Jenkins felt there were serious operational concerns that were not addressed by the proposal.  In order not to appear to be selfishly protecting HIS own position, he volunteered to transfer to Patrol.  Detective Jenkins made no limitations but had assumed that the change would not be immediate but at the June shift change.  (Tr. 180).  D. C. Weston seemed surprised that he volunteered.  (Tr. 183).

            Later D. C. Weston asked if he [Jenkins] could go immediately.  Weston said that it was at the direction of the Chief that the transfer be made immediately but because of the number of investigative matters he would entertain a paper shift (“TDY”) to give time to clear up investigations and not disrupt Jenkins’ family until the June shift bid.  Inasmuch as Detective Jenkins had volunteered to rotate back to Patrol but only after June, then Dreher was involuntarily transferred because, D. C. Weston said, Dreher was the most senior in the unit.

            The next day or a few days later, he was approached by two different detective sergeants asking him to reconsider.  A comment was made to him that “there was a bigger plan and he [Jenkins] should be careful to reconsider.”  Detective Jenkins testified that he thought he knew what that meant.  There was no follow up question.  (Tr. 186).  Detective Jenkins wasn’t surprised by the sergeant’s unusual meeting with him because he sensed from the beginning that he [Jenkins] was not the volunteer they were looking for.

            Detectives Jenkins and Dreher were both on year-to-year special assignment tenure status at the time.

            Detective David Kuzemchak was rotated out of his assignment in CNU on March 16, 1998.  At the time, he had not completed his 3+1 tenure.  No accommodation was offered for him to return to Detectives to complete his unexpired tenure.  Kuzemchak went into Detectives on a 3 + 1 assignment on April 1, 1996.  His 3-year rotation date was April 1999.  Association Exhibit 35, 1/7/97; 7/22/96; Detective Division Seniority / Rotation Roster).  Somehow, on the 8/5/97 roster (City Exhibit 6), Kuzemchak is shown as year to year.  Detective Eddie Dixon in CNU was senior to Detective Kuzemchak.

            The Combined Narcotic Unit (“CNU”) is a hybrid organization commanded at all times relevant to this matter by a Lieutenant from the Washoe County Sheriff.  CNU has component units from RPD, Sparks City Police, and from other law enforcement agencies.  A sergeant from RPD headed one unit in CNU.  Sergeant Forbus of Washoe County headed Kuzemchak’s CNU unit.  A Washoe County Lieutenant commanded CNU.  CNU’s location is not at RPD headquarters.  CNU is relatively isolated from the RPD and because of its special mission leads a somewhat independent existence.  

            In the fall of 1997, CNU Detective Freelove filed an allegation of misbehavior concerning the RPD Sergeant.  Freelove left CNU in December 1997, several weeks before the involuntary transfers began.

            Detective Kuzemchak filed an Internal Affairs Complaint against the same sergeant.  Soon after.  The CNU was abuzz as officers then “chose up sides,” according to Kuzemchak.  Internal Affairs pulled the Sergeant out during the investigation.  But even after Officer Kuzemchak had made known he was concerned about his personal safety, the Sergeant was back in CNU doing administrative work for one of the Washoe County commanders in CNU.

            A few weeks later, Detective Kinamon of RPD moved in to CNU to replace Freelove Shortly after Officer Kinamon arrived in CNU, Lt. Ross called two of the RPD detectives, including Kuzemchak in and told them that RPD was deleting a position from their complement of the CNU.  Lt. Ross told them he was looking for a volunteer.  (Tr. 303.304).  Kuzemchak said he would leave “if there were a big stink about it but that he will not voluntarily leave the unit.”

             At Chief Hoover’s February 24 1998 meeting for all personnel, Kuzemchak was announced as a volunteer by D. C. Weston.  Detective Withnell (Backgrounds) was announced as a volunteer too.  Both Kuzemchak and Withnell announced that they were not volunteering.  Chief Hoover told D. C. Weston that if they are not volunteers, you will have to do something to resolve the problem.  (Tr. 309).  Detective Kuzemchak later learned he would be transferred on the grounds that he was the most senior RPD detective in the CNU.  Detective Kuzemchak testified that he thought he was being transferred because of the Internal affairs investigation he had initiated.  He had previously told his own RPD Lieutenant in Detectives that he [Kuzemchak] wasn’t the most senior RPD detective in CNU.  (Tr. 311).

            The billet change in the CNU involving Officer Kuzemchak was carried out under Deputy Chief Weston’s “get a volunteer first if you can and if you can’t apply first in first out seniority plan.”  In reality, Officer Kuzemchak was less senior than several other detectives in the Detective Division according to the January 7, 1997 Seniority / Rotation Roster (Assoc. Exhibit 35).  There were RPD detectives more senior also in CNU, Detectives Dixon and Freelove.  (City Exhibit 60.  Officer Freelove left the CNU in December 1997.  (Tr. 300, 301).  Another detective, Detective Kinamon was assigned from Patrol to CNU at or about the same day, Officer Kuzemchak was transferred back from CNU to Patrol.  Inasmuch as Freelove was gone, the RPD could have elected not to fill Freelove’s billet to accomplish the billet reduction goal.  Deputy Chief Weston agreed.  (Tr. 404, 405).  The CNU was commanded by Lt. Ross of Washoe County.  Commander Weston noted that when he had asked Lt. Ross, he [Weston] was told that the RPD assignments in CNU were fully staffed.

            D. C. Weston relied on Lt. Ross’s statement that Kuzemchak was most senior.  The Kuzemchak transfer back to Patrol went forward on the grounds of seniority not on the grounds of volunteering (Tr. 389).  Officer Kuzemchak was assigned to Detectives on a 3 + 1 basis.  However, City Seniority and Rotation Roster of August 5, 1997 (City Exhibit 6) show him as year to year.  The same rosters dated January 7, 1997 and July 22, 1996 show him as 3 + 1.  Association Exhibit 35.

Of the 12 positions relevant to this inquiry that were scheduled for or transferred to Patrol, holders of 5 became involuntary transfers: Officer Dreher; David Kuzemchak; Pam Lodge from Crime Prevention; Derek Cecil from Wellness / CDS was then transferred back on a temporary base of several days each week; Jack Muns of Problem Oriented Policing (“POP”) voluntarily reassigned but to a position already assigned to Patrol before the change, but is still temporarily assigned to the POP position and seldom handles Patrol calls; Jay Brown was involuntarily transferred to Patrol from Special Events Policing; Detective Glenn Withnell voluntarily transferred to Patrol and was transferred back a few months later to the Detective Division during the next following shift bid on June 8, 1998.  Officer Ross Aguiar’s position was already scheduled for rotation back to Patrol at the June 1998 shift bid.

            The special assignment Article 24 of the CBA covers special pay provisions, incentive, and other components of compensation.  That significant compensation loss to be taken by special assignment personnel involuntarily transferred back to Patrol is made abundantly clear in Article 24.

            In Chief Hoover’s Memorandum of February 27, 1998 to City Manager McNeely (Assoc. Exhibit 17) identifies 2 background officers and one CNU officer to be moved back to Patrol.  There is no mention of MCU personnel being transferred back.  

            Several exhibits discuss timing of changes.  None says that no changes or transfers will be made until the June Shift Bid Change.  Many, however, hint that changes will be made over time and before the June Shift Bid.  One, Association Exhibit 16 (Deputy Chief Galli’s 2/17 e-mail to everyone) says that all reassignments will occur by the June Shift Change.  The Chief’s memorandum of February 17, 1998 to the City Manager refers to the velocity of change as “We plan on making these changes over the next few months with a final target date of June 1998.”

            Whether or not Officer Dreher was the most senior in CNU and, thus, subject to rotation out remained unclear with conflicting views advanced by Officer Dreher and Deputy Chief Weston.  Chief Weston’s memorandum of February 26, 1998 (Association Exhibit 25) stated “Dreher’s rotation is based on his seniority in the Major Crimes Unit (MCU).”  MCU had evolved from Robbery / Homicide. 

            Investigative Services Bureau (“ISB”) pre-dated “Detective Division” as the identification for Detective Division.  Ron Dreher and Joe Depczynski were both appointed on September 28, 1987 according to Lieutenant.  Nick Bloomster’s memo to Assistant Chief Kirkland.  There, it was noted that they (and 2 others) would fill vacancies in ISB at the January 1988 shift bid.  There was no mention of a particular assignment in ISB.  Assoc. Exhibit 30.  On November 1, 1988 Lt. Glensor, ISB Commander selected Ron Dreher and Dave Jenkins for assignment from Burglary / Fraud to Robbery / Homicide effective on December 15, 1988.  Assoc. Exhibit 31.  On December 16, 1988, Lt. Galeoto, an ISB Commander, notified the Assistant Chief by writing that Ron Dreher was transferred within ISB from Burglary to Robbery / Homicide.  Detective Dave Jenkins was assigned to Robbery / Homicide in the latter part of 1988 before Detective Dreher’s transfer to Robbery / Homicide.  (Tr.192, L 4-13).  Unrebutted testimony of Detective Dave Jenkins was that he, Dreher and Depczynski all started in MCU when the unit was created (out of Robbery Homicide) that Depczynski was most senior, Jenkins next, and Dreher behind Jenkins (Tr. 188). 

            Deputy Chief Weston testified about seniority.  He referred to City Exhibit 6, the seniority list of August 7, 1997 (no other 1997 or 1998 list was introduced by either party).  Deputy Chief Weston testified that Dreher was the most senior person  “in the detective division” and that Dreher was “higher up in the list because he has more time in the department” than Detective Depczynski.  (Tr. II at 400.)  Both Depczynski and Dreher are shown as coming into the bureau on 1/88.  City Exhibit 6. 

            Deputy Chief Weston when searching for persons to rotate out of Detective and back to Patrol devised a “first cut” by asking for volunteers before invoking seniority.  Detective Dave Jenkins volunteered but assumed his rotation would be at shift bid at the end of June.  When Jenkins found that the rotation was to be immediate (referred to as March Rotation by Deputy Chief Weston), Jenkins demurred because he couldn’t move until June.  Tr. 396, 397.  Deputy Chief then invoked his seniority rule to rotate out Sgt. Dreher.  Deputy Chief Weston explained his seniority rule as:

            I had created a rule.  It wasn’t a bargaining agreement.  I have the right as a manager to make decisions on whom to transfer, and we had chanted the changed order policy at that time.[2]  We were reducing billets in the section.  And to reduce that number, I came up with a system, my system not that labor agreement, that I want to either use volunteers or seniority by the sections, and that’s the rule that I applied.  (Emphasis added).

            And we had a number of other things in that rule to try to make this as equitable as possible   If somebody got volunteered out of detectives, for example had less than four years, we would say you could come in as soon as a vacancy occurred so you could finish your term out.  If you had more than four years, we said, that your time is done for now.  You can re-test and try to come back later.  We try to be fair and keep some rotation in the division.  (Tr. 410, 411)

            The seniority provisions of the Agreement, Article 33, are last in - first out but apply to the events of layoff or reduction in force within classification.  The seniority rule enunciated by Deputy Chief Weston is a first in -first out rule.  The Weston plan had as one purpose furthering rotation and opportunity for career development by taking out long term incumbents.

            When D. C. Weston returned to Command of Detectives, he modified the working hours.  The net effect was that he changed the hours from nine to nine and one half by modifying the lunch break time.  As D. C. Weston said:

I simply went in, looked at the schedule, and wrote on a pad of paper, saying this is what the work schedule will be, and it didn’t violate the contract.  The hour of work -- most of the people were working those hours already, and I simply defined and kept everybody in the same shift and work schedule where there was, in my opinion, a lack of control in the work hours at that time. 

(Tr.  436).

Association Exhibit 25.1 of February 26 1998 is a Memorandum to Detective Division Employees.  Among other things, D. C. Weston extended the lunch break from the 30 minutes included as listed in the CBA to “employees will take an additional 30 minutes of their own time to extend the effective lunch break period to 60 minutes.”

            In direct examination, Chief Hoover summarized the audit as:

Well, it was a rather lengthy audit, but what they did is they looked at every division within the police department.  .  .  and the major finding of the audit that I was concerned with was, the organization of the police department wasn’t as effective in helping the Patrol division do our primary function, and that it, respond to calls for services by the public.  And in a nutshell, we need to beef up the Patrol divisions, add more personnel to it, either transfer people or actually change the structure of the Department, and that’s what we did.  (Tr. 50, 351)

            Officer Dreher’s Employee Performance Evaluation made by his immediate supervisor, Detective Sergeant Partyka, dated May 4, 1998 was received into evident.  Chief Hoover on May 14, 1998 signed as concurring in the evaluation.  Sergeant Partyka’s evaluation discloses an almost perfect employee in every category and includes text references to commendable activities and abilities in major crime cases identified by case number and brief reference to each matter.  Association Exhibit  34.

            In the aftermath, Officer Pam Lodge was involuntarily transferred back from the GREAT program on March 16, 1996 when she was carrying out 3 +1 assignment; Officer Derek Cecil involuntarily went to Patrol from training section on March 16, 1998 when he had an uncompleted 3 plus 1 assignment; and Officer Tom Yturbide was involuntarily transferred on June 18, 1998 back to Patrol from his incomplete 3 plus 1 assignment.

           

V. DISCUSSION AND FINDINGS

            An arbitrator should never substitute his judgment for the collective wisdom of the RPD command staff when it comes to deciding how or when to make transfers or reassignments or what positions should be eliminated.  I am limited to interpreting what happened in light of the management and employee relationship arising in the CBA and the common law of labor and employment arbitration.  

            There was no budgetary constraint driving the reorganization.  There was no downsizing of the total working force.  The Chief gave generalized instructions and left the actual planning for the force changes to the Deputy Chiefs.

In considering and applying the facts of this case, I am consolidating discussion under applicable and interrelated CBA Articles.

NRS 288.150

            I have no jurisdiction to decide any matter under NRS 288.150, that jurisdiction being reserved by statute to a local government employees management relations board.  My discussion will be based up the facts, the Collective Bargaining Agreement and application of the common law of labor arbitration unless the common law clearly differs from Nevada law.

Right to Transfer and Assign

            Unquestionably, the RPD retained the right to transfer and assign.  The right is a long-standing traditional right reserved for management and is clearly embodied in the language of Article 4 (a) (1) (3) (I).  Section (c) of Article 4, moreover, spells out the need for the retained right.  RPPA does not challenge the right.

            The retained right is not limitless.  No assignment or transfer can be used by RPD as a form of discipline as in Article 4 (a)(1).  The common law of employer and employee relations puts other limitations on the right -- the transfers and reassignments cannot be arbitrary, capricious, or taken in bad faith.  ELKOURI AND ELKOURI, HOW ARBITRATION WORKS, 660, N. 20 (M. Volz & E. Goggin 5th Ed. 1997), See, e.g. Williams Pipeline Construction, 70 LA, 664,666 (1978) (Barnhart, Arb.) and Reichhold Chem., 73 LA 636, 649 (1979) (Ralph C. Hon, Arb.)  The right can also be modified or limited by custom and practice in some situations.  More comment will occur later.

Issue of Retaliation and Transfers as a Form of Discipline, Articles 4, 5, 29

            CBA Article 5 forbids the RPD from interfering in or discriminating because of a person’s membership or activity in the RPPA.  Moreover, Article 4 (a) (1) bars discipline as grounds to transfer or assign.  Officer Ron Dreher, the lead grievant, is President of RPPA and is an effective and forthright advocate for the RPPA and its members.  Officer Kuzemchak has been active in RPPA.  Officer Kuzemchak was very vocal at a meeting of Command Officers when he opposed the reorganization and transfers.

            It is inviting to string together certain facts and come to a conclusion that there was an attempt to “get” Ron Dreher and Dave Kuzemchak and, to some degree, Officer Jeff Freelove.  Officers Freelove and Kuzemchak of CNU, both filed internal affairs complaints against a RPD sergeant at CNU.

            Indeed there were vigorous interchanges of ideas, particularly by Dreher for RPPA, but nothing at a level going over the line or that tended compellingly to show any retaliation or wrongfully applied discipline.  Without more persuasive evidence than was introduced, I cannot find that there was an attempt to “get” any of the three officers by a mis-use of discipline or any retaliation for RPPA activity.  It appeared to me that the rotation back of Officer Dreher was a surprise to Chief Hoover.  Chief Hoover had seen the schedules and had told Officer Dreher that a deletion of a billet in MCU was not scheduled.  Later, D. C. Weston initiated the involuntary transfer of Dreher based on seniority as D. C. Weston urged.

            D. C. Weston and Ron Dreher have been professionally associated at RPD for almost all of their professional careers with the RPD.  For several years in his work with RPPA, Officer Dreher has locked horns with the RPD management team including D. C. Weston from time to time.  The contentions arose in different settings when Officer Dreher was an RPPA advocate for officers in their individual disputes with RPD.  As an officer in and advocate for the RPPA Officer Dreher has disagreed with RPD frequently.

            President Dreher for RPPA resolutely opposed the appointment of Chief Hoover in summer 1997.  President Dreher has opposed decisions and practices of D. C. Weston energetically before and during time D. C. Weston was Acting Chief of Police before the appointment of Chief Hoover and since.  While sometimes sparked by strongly held beliefs, their opposition has apparently always been professional. 

            Chief Hoover convincingly testified that he held no grudges against the RPPA or President Dreher.  There was no persuasive evidence of any scheme or plan by RPD or by Chief Hoover or D. C. Weston to “get even” with Officers Dreher or Kuzemchak or with the RPPA.  The events leading up to and carrying out of the reorganization of the RPD under Chief Hoover sparked continuing disagreement.

            I find no persuasive evidence that Chief Hoover, D. C. Weston, or any other official with RPD discriminated against Officers Dreher and Kuzemchak or unlawfully disciplined them or retaliated against them during the reorganization or because of events occurring during or after the hiring of Chief Hoover.

            I hold that there was no violation of CBA Article 5 or of Article 4 (a)(1).

Article 33, Seniority  / Layoff

            Section (a) is the only provision possibly at issue.  This article is a traditional last in, first out seniority system.  Under the Article’s unambiguous language, the only events invoking the provision are lack of funds or lack of work.  There was no budgetary constraint and no showing of lack of work.  There was no break in employment for any of the grievants.  There was no layoff and no reduction in working force.  The circumstances here do not fit into Article 33.

            There was a downgrading in compensation and elimination of tenure for some officers and the deliberate creation by D. C. Weston outside the CBA of a different seniority plan for use by him in carrying out the transfers at issue here.  Those matters will be discussed later.

            I hold that there was no violation of Article 33 arising from the reorganization and involuntary transfers.

Article 36, Labor Management Committee; Article No. 27 Working Rules

             Three designees of the RPD and three of the RPPA meet monthly in a committee under Article 36.  The meeting is mandated by the CBA.  Its operative language foresees use of this committee for considering changes in work rules and, although silent on other purposes or issues, presumably is utilized to discuss ways and means the parties believe can benefit the overall working relationship between RPD and its RPPA employees.  The Article proclaims that recommendations “shall be considered” by the Chief.  The verb “shall” in law is construed to require an act.  The chief is required only to consider (but not to adopt) recommendations.  There was no evidence that there were any recommendation by the Committee, or any considerations put to the committee for its group consideration of any part of the method or plan of reorganization for more staffing of the Patrol.  Likewise, there was no evidence of reorganization matters being put before the Chief for his “consideration” that related to the transfers and rotation of officers from detectives back to Patrol.  There was little reference to the committee at the hearing at all beyond mention that the RPPA members had for over two years complained that Patrol needed more staffing.  (Tr. 89) and the receipt of Association Exhibit 29, Minutes of the February 11, 1998 Labor and Management committee Meeting show a number of topics being discussed and further matters for follow up.  The Chief, five of the D. C.s, the Internal Affairs Lieutenant, the Legal Adviser and the RPPA (no mention by name of RPPA representatives) participated in the February 11 meeting. There were many topics discussed including, among others, that the final draft of the Transfer General Order would be brought to the meeting and that the RPPA was concerned with safety in the area of Patrol Staffing.

            Unrebutted testimony was that the RPPA (and presumably its labor-management committee members) had been bringing up the need for more staffing in Patrol for a period pre-dating the Audit that spurred the involuntary transfers back to Patrol.  There was unrebutted testimony that the transfers signaled by D. C. Galli’s memo of February 17, 1998 to Everyone (Association Exhibit 16) in which he identified billets to be removed were not brought up in the committee.  Had the plans for billet reduction been brought before the Committee, perhaps some of the problems causing this grievance could have been amicably defused. 

            Article 36 is void of any requirement about what topics are to come before the Committee except as to changes in work rules.  If the minutes are a snapshot of committee work, there surely was ongoing employee and employer interchange at the Meetings.

            I hold that there was no violation of Article 27 or of Article 36.

Article 7, Hours of Work; Article 27; Article 30 Amending Procedure

            I now turn to  Article 7 (Hours of Work).  There is no ambiguity in the language of Article 7 (a):

The normal workweek of employees covered by this Agreement shall consist of forty (40) hours per calendar week, consisting of five (5) consecutive 8-hour shifts.  Normal workday shall be 8 hours per calendar day.  Meal periods shall be included.     . . . [D]etective Bureau is on a plan of five (5), nine (9) hour days one week, and three (3) nines and one eight (8) hour days(s) the second week . . .   .

(Emphasis added).

            When D. C. Weston returned to Command the Detective Division in early 1998, he unilaterally changed the working hours by adding 30 minutes per day, thus converting a 9 hour day into a 9 and one-half hour day.  He announced the change by his memo of February 26, 1998 to Detective Division Employees.  Association Exhibit 25.1.  After noting the existing 30 minute lunch break in his memo he then said, in relevant part, “[e]mployees will take an additional 30 minutes of their own time to extend the effect lunch period to 60 minutes.”  D. C Weston testified that he looked at the schedule, wrote it down, and then defined it.  There was a lack of control in the work hours, he said.  (Tr. 436).  There was no discussion with RPPA about the change and no negotiation.  While the change may have seemed necessary to D. C. Weston, he is required by the CBA to take the precaution of telling the RPPA, the Bargaining Agent recognized by the RPD for establishing salaries, wage, hours an other conditions of employment.  (CBA Article 2 (Recognition).  D.C. Weston ignored Article 30, Amending Procedures, too.  While the change in time may have seemed logical to him for efficiency and control to D. C. Weston, he cannot with impunity go ahead with the change he wanted unless there was notice to RPPA, discussion, and agreement.  Perhaps the RPPA would have agreed.  Perhaps not.  But the Bargaining Agent should have been notified and there should have been negotiation.  To make the change, as D. C. Weston so abruptly did, was a mockery of Article 27.

            The unilateral change of adding 30 minutes of the employees own time to allow for the lunch break made by D. C. Weston violated the CBA

 Article 24 .  Special Pay Practices:  Article 31, Savings Clause: Past Practice and Custom

            The CBA covers July 1, 1997 through June 30, 2001.  Article 24 is a particularly well-drawn zipper clause as a savings clause is often called in labor law.  The effect of the clause is to prevent bargaining on matters not covered by the agreement but that may occur during the course of the term of the CBA.  However, the NLRB in Eaton, Yale & Towne, and Unit Drop Forge considered whether the union really waived by contract its right to demand bargaining on mandatory matters during the term of the agreement.  The legitimacy of the waiver under Towne the town case should be tested by reviewing whether or not the waiver was fully discussed or explored and if the union consciously yielded and unmistakably waived its interest in the matter.  Here, a reorganization of the police department coupled with involuntary transfers to effectuate moving more officers into Patrol presented new circumstances not covered expressly or foreseen by the parties when negotiating the CBA.  Even if the zipper clause were held to apply, the past practice and custom principle in my opinion would over-ride the zipper clause here when analyzing the unique facts of the situation being considered.  I now move to past practice and custom.

            Whether or not a custom or past practice is allowed to be construed as binding and giving it effect as an implied term of the CBA is interpreted carefully in the common law of labor arbitration.  To be binding, the particular practice must be unequivocal, clearly enunciated and acted upon, and readily understood to be a practice accepted by both parties.  See, e.g. Fashion Shoe Products, 84 LA 325, 329-390 (1985) (Hilger, Arb.) and Univac, 545 LA 48, 52 (1969) Marlin L. Volz, Arb.).  The parties own mutual conduct suggesting a meeting of the minds of the parties may establish a binding practice if it occurs over sufficient time.

            The terms and conditions of the RPD General Orders regarding Departmental Transfers / Special Assignments fit convincingly into the entire three part test for a practice to become a binding practice and custom.  The practices are unequivocal, clearly enunciated by being periodically reissued and published showing the name of their Recommending Deputy Chief and the Chief of Police.  In 1993, Sergeant Stephen Turner and Captain Jim Weston (now D. C. Weston) began developing a plan to reduce the problems created by the then existing detective rotation policy and to further a talented core of Detectives by giving tenure to detectives for their benefit, the benefit of the RPD.  The citizens of Reno would have the indirect benefit of a professional and knowledgeable staff of detectives.  A proposal was hammered out.  See Inter - Office Memo of October 6, 1991,  (Exhibit 5.1).  The concept of 3+1 terms of assignment, 40% staffing with longer tenured positions (the so-called 40% hold back) and even longer tenure based on performance began.  Arising from an almost identical Memo between Sergeant Turner and Deputy Chief Jim Weston on the same subject but dated September 26, the concept was given official life.  (Association Exhibit 5.2).  At first, the RPPA was ambivalent.  Then, by management right, Jim Weston, Deputy Chief, Detective Division, adopted the program and initiated it on June 29, 1991.  Thereafter it became identified as General Order  (“GO”) No 4/760.000.  From then the periodically “reissued” General Order No 4/760.000 *DEPARTMENTAL TRANSFERS / SPECIAL ASSIGNMENTS has been a commanding presence in selection, hiring, tenure, rotation, training, and internal division transfers.  The GOs continue the long used shift bid practices.  The three plus one and year to year long term appointments carry through into seniority and rotation schedule in personnel management for the Detective Division.  Not only the RPD command but also its employees accept and rely on the GOs.  The three plus one, indefinite term assignments (year to year) and traditional shift bid rotation dates are now a part of the custom and practice between the RPD and the RPPA.

             GO 4/760.000 as periodically reissued and its manner of application and its terms and conditions became a binding custom and practice for circumstances of this grievance.  Moreover, the expectations of employees who successfully bid into a special assignment was that the extra pay and resulting benefits was a condign of their employment

Transfers; Seniority:  Effect of the Reorganization on the CBA

Deputy Chief Galli 2/178 Reorganization letter to Everyone (Assoc. Exhibit 16) in which billets to be transferred were identified created unanticipated turmoil among detectives in the application of Phase II of the RPD Reorganization.  The confusion seemed to extend to superiors expected to help carry out the reorganization, at least one appeared to be taken off guard by the Weston seniority rule.  The sudden mid shift bid transfers disclosed in the Galli Reorganization letter and the adoption by Deputy Chief Weston of his self-created seniority rule produced some curious results.  As a forerunner to the confusion, Chief Hoover’s memo of February 3, 1998 (Association Exhibit 41) distributed two weeks before D. C. Galli’s Memo did not clearly warn that line officer transfers would occur in February or March.  D. C. Gall’s memo of January 16, 1998 to “everyone” did warn that “[O]bviously any addition of positions to Patrol will require personnel from other assignments.”  D. C. Galli went on to describe that the process would occur over 3 to 6 months with some personnel / program changes at shift change [referring to semi annual shift bid].   When the D. C. Galli memo identifying Billets affected appeared on February 17 and it became clear that some involuntary transfers would occur in two weeks, cracks in carrying out the reorganization plan quickly surfaced. 

             Sergeant Holladay in Detective / Backgrounds seemed not to know about the Weston Seniority Plan or how it applied to his Fraud and Backgrounds Section when he was separately confronted by Detectives Withnell, Soderblom and Pointer.  Lieutenant Pitts, newly reassigned to Detectives, was unsure and, when challenged with Detective Pointer’s argument that she had tested in and had been promised a 3 + 1 assignment, it became clear that Lieutenant Pitts had not been fully informed by his superiors about how to handle that situation.  Detective Pointer was allowed to stay, by D. C. Weston because she had been “promised” a 3 + 1 billet.  The Weston plans to achieve billet reductions in Detectives seemed to be only partially understood by Section supervisors.  That there was confusion among the supervisors is further revealed in IV Fact Summary.

            Of course, an affected employee would instantly understand that when he or she would face being involuntarily transferred back to Patrol there would be a loss of the special compensations and benefits enjoyed by Detectives under the CBA.  To what extent the impact of loss of benefits and compensation was taken into account during planning was not disclosed at the hearing.  I will address this issue later.

            The resulting turmoil suggests that the Chief, his Deputy Chiefs and the Supervisors did not communicate or plan very well to circumvent the confusion.  That the traditional last in first out seniority plan would not be used and would be replaced by a “get a volunteer first, and if nobody volunteers, then apply the first in, first out Weston seniority plan” was new to department personnel and confusing.  That it was not completely understood by Sergeants and Lieutenants who had to deal with applying the plan was apparent too.  The testimony from affected employees did not reveal that they were told that the RPD would make accommodations for them as a way of compensating them.  Some Temporary Duty  (“TDY”) or paper assignment was discussed.  Some allowances were made for detectives to finish out some of their assigned work were made.  But no allowances were worked out or discussed to give effect to the expected benefits lost by the employees being unexpectedly cut off from the financial and professional advantages when they were denied their expectancy by being involuntarily transferred out.

            The Weston seniority policy was to work in tandem with a first effort to find a volunteer before his seniority rule would be invoked for an involuntary transfer.  Yet, neither Detectives Withnell nor Jenkins, both of whom had conditionally volunteered, understood after a Meeting called by D. C. Weston in the Detectives Conference Room that their voluntary transfers were supposed to be immediate rather than at the traditional shift bid coming up in June 1998.  Each had unfulfilled tenured special assignments at the time.

            No reduction in MCU detectives was scheduled.  Even Chief Hoover was surprised when he learned that one billet would be removed from MCU shortly after he had told Officer Dreher that there was no plan for removing a billet in MCU.  Although Officer Dreher was not the most senior detective in MCU, he was rotated back to Patrol when Detective Jenkins transfer was allowed to be delayed.  When he volunteered at the special meeting of detectives held by D. C. Weston, he had no inkling that the transfer was to be immediate instead of at the traditional shift bid time.  The warning signaled by the Seniority / Rotation Roster that Ron Dreher and Joe Depczynski entered the Investigator Bureau on the same day should have, but apparently did not, trigger a more careful consideration of who was the more senior of the two under the Weston Seniority Plan.

            CNU detectives were slated to be reduced by one billet.  Yet, detective Kuzemchak, was involuntarily transferred when the billet reduction had already been achieved before January 1998 when Detective Freelove transferred out a few weeks earlier.  Instead, another Detective was transferred in and Kuzemchak was transferred out on or about the same time.  It was clear the CNU command group was incompletely instructed about the plan of reorganization and how to carry it out.  Further, D. C. Weston took at face value what he had been told by a Washoe County Lieutenant serving in CNU about Kuzemchak’s seniority.  A more careful check of the RPD rosters by D. C. Weston and more fact-finding should have been undertaken.  Kuzemchak had made it known to his Lieutenant that he was not the most senior.  Yet he was involuntarily transferred based on seniority when he was, in fact, not the most senior.

            The application of the Weston Seniority Rule hit Officer Dreher in MCU in a roundabout way.  Detective Jenkins had come into the Department early on and knew the Detective Division history of himself, Detective Joe Depczynski and Detective Dreher.  He testified convincingly that Officer Dreher was not the most senior.  Depczynski and Dreher both are shown on the City Exhibit 6 Rotation and Seniority Schedule as coming into the Bureau (Detective Bureau) on 01/88.  Surely, given the red light that both had the same official starting date and that an involuntary transfer based on seniority was in the offing, more care should have been taken in making the seniority determination as to Dreher.

            When Chief Hoover sensed the depth of confusion and the impact on RPD after the morning meeting of February 24, 1998, the Chief, to his credit, e-mailed everyone that those who were involuntarily transferred would be accommodated if they wanted to apply for another especial assignment.  Association Exhibit 24. There, he again expressed his commitment to get “more cops on the street.”        

            Chief Hoover became properly concerned about the effect of the involuntary transfers on the affected employees.  Each was an incumbent in a 3 + 1 or a year-to-year special assignment.  Special assignment are coveted partly because of the increased compensated and benefits.  Income that would be lost by an employee who was involuntarily transferred was variously estimated at about $10,000 not including benefits allocated to the Nevada Personal Retirement System.  Chief Hoover expressed a desire to make accommodations for those who wanted to re-apply to get back on special assignment.

            The special assignment pay arises in the CBA.  The tenure of special assignments coupled with the performance based tenure additions was created in the General Order, is relied upon by employees and is referred to in writings by Command Staff.  The City cannot now deny the involuntarily transferred employees their expectation.  The affected employees themselves did nothing to cause their reduction in compensation and nothing to contribute to the impossibility of their being able to complete their assignments.  There was no budgetary pressure to remove the affected employees from the positions they held.  There was, in effect, a bargain between the employees and the city arising from the GO.

            The city broke its bargain.  While the City had the reserved right to make the transfers to Patrol it did not have a right to wipe out the expected compensation and benefits of those were fulfilling their assignments before they were involuntarily transferred back to Patrol.

            VI.  AWARD

            Under the stipulation by counsel, I retain jurisdiction as to damages.  Counsel shall agree upon the amount of “damages,” by stipulation.  If agreement is not reached, the parties shall notify me not later than by 5 P.M. on May 21, 1999, at which time I shall determine the compensation.

            A.        The City violated the CBA by not providing for compensation to officers who were involuntarily transferred back to Patrol and who at the time had uncompleted tenure in the affected special assignment position.

            B.         A plan shall be adapted and mutually agreed upon by RPPA and RPD as soon as is reasonably possible to accommodate those involuntarily rotated officers identified in “C” who wish to transfer back to their former special assignments or one closely similar.  Compensation in lieu of transfer back should also be considered.

            C.        The affected employees for whom compensation or special accommodation is to be awarded are Ronald Dreher, David Kuzemchak, Derek Cecil, Pam Lodge, Jay Brown, and Tom Yturbide.  The amount of “damages,” by stipulation, shall be agreed upon by counsel.  If agreement is not reached, the parties shall notify me not later than by 5 P.M. on May 21, 1999, at which time I shall determine the compensation.

            D.        The City violated the CBA when D. C. Weston unilaterally changed working hours in Detective Division by adding one-half hour to the lunch break.

            E.         All continuing work shall be ended not later than by May 28, 1999 by 5 P.M. at which time the matter shall be deemed to have closed if not sooner closed by action of the parties and the arbitrator.

            DATED this 14th day of April 1999

 

                                                                                    __________________________________

                                                                                    David K. Robinson
                                                                                    FMCS Arbitrator

 

CERTIFICATE OF SERVICE BY MAIL

            I certify that I mailed a copy of or the original of this Award by USPS, postage paid on the 14th day of April 1999 to persons or entity described at the addresses shown below

                                                                       

                                                                                    ___________________________________

                                                                                    David K. Robinson

Richard M. Gonzales, J.D.
Labor Relations Manager
City of Reno
PO BX 1900
Reno, NV 89505

Michael E. Langton, J.D.
801 Riverside DR
Reno, NV 89503

Federal Mediation and Conciliation Service
Division of Arbitration Services
2100 K ST NW
Washington, DC 30427


[1]               The Audit Report was issued in January 1988   The audit report was underway at the time Chief Hoover was appointed by the Reno City Council in July 1997.

[2]               General Order 4/760.000 Departmental Transfers / Special Assignments reissued on October 8, 1997 and April 16, 1998 (Association Exhibits 8 and 9).

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