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Title: City of Wilmington and Fraternal Order of Police
Date: May 25, 2005
Arbitrator: 
N. Eugene Brundige
Citation: 2005 NAC 133

OPINION AND AWARD

In the matter of Voluntary Arbitration

Between

The Fraternal Order of Police/ Ohio Labor Council, Inc.

And

The City of Wilmington, Ohio

Regarding

FMCS Case Number 04-08112-8
{Robert Houghton et. al.}

 

APPEARANCES:
FOR THE FOP:
Douglas Behringer, General Counsel 
Robert Houghton, FOP/OLC  
Robert Wilson, FOP/OLC  
Joshua Riley, FOP/OLC
Barry Gray, Staff Representative
FOR THE EMPLOYER:
David Blaugrund, Attorney & Advocate 
Laura A. Curtiss, Exec. Asst. to Mayor
David Kessler, Consultant
Mary Kay Vance, Deputy Auditor
Linda Eichelberger, Retired

            An arbitration hearing was conducted March 1, 2005 in the Mayor’s Office Conference Room, City Hall, Wilmington, Ohio.  The issues arose from a grievance filed May 26, 2004 by Robert Houghton on behalf of all bargaining unit members.

            The parties submitted joint exhibits including the relevant collective bargaining agreement, the grievance and the Mayor’s response to the grievance.

            Management phrased the issues as follows:

1.   Is the grievance timely?

2.   Are individual employees of the Clinton County Municipal Court “any group of bargaining or nonbargaining unit employees” as those terms are used in Section 18.1 of the collective bargaining agreement?

3.   Is the City required, pursuant to Section 18.1 of the collective bargaining agreement, to compensate bargaining unit employees by paying them the difference between the 3% annual increase in wages provided by the collective bargaining agreement and given to all city employees who work for the Mayor, and the highest percentage increase paid to any individual employee of the Clinton County Municipal Court?

            The FOP states the issue somewhat differently: 

                        1.  Did the Employer violate the Collective Bargaining Agreement, Article 18.1, when it refused to give the grievants the same wage increase granted to other City employees?  If so, what shall the remedy be?

            During the testimony presented regarding the threshold issue of timeliness, the employer withdrew this issue and agreed the grievance was timely filed.

            In that the issues presented appear to support the positions of the respective parties, the arbitrator will simply phrase the issue in a more neutral fashion:  Did the Employer violate Section 18.1 of the collective bargaining agreement?  If so, what shall the remedy be?

            The parties agreed that the matter was properly before the arbitrator for a determination.

            The hearing concluded on March 1 and the parties elected to file post hearing briefs in lieu of closing statements. 

            The briefs were received in a timely manner by the arbitrator.

            All parties were given full opportunity to call and cross examine witnesses, present evidence and arguments, which they did in a concise and comprehensive manner.

BACKGROUND:

            The City of Wilmington is located in south central Ohio and provides traditional police services to that community.  FOP/OLC Inc. represents the Patrol Officers within the Police Department.

            The current collective bargaining agreement includes a “me too” clause regarding wages that states if “the employer grants any group of bargaining unit or non-bargaining unit employees an annual wage increase in excess of the 3% annual increase provided by this agreement, the increase provided by this agreement shall be amended to conform to that higher percentage increase.”

            Some Municipal Court employees received raises in excess of 3% and the FOP believes its members are entitled to the difference between what they received and the 3% awarded in the agreement.

            The FOP also believed two employees within the City Prosecutor’s office received an increase larger than 3%. 

RELEVANT CONTRACT PROVISIONS:

Section 8.1 of the Patrol Officers Agreement

Section 18.1. Effective on the first day of the first full pay period following January 1 of 2004, 2005 and 2006, the pay ranges to which bargaining unit employees are assigned shall be in accordance with Appendix A of this Agreement. After the successful completion of the probationary period, an officer will be placed on Step A of the pay range schedule in Appendix A. For the year 2004 Appendix A reflects a 3.0% raise, 2005 a 3.0% raise, and 2006 each member receives a 3.0% raise.

In the event that the Employer grants any group of bargaining unit or non-bargaining unit employees an annual wage increase in excess of the 3% annual increase provided by this agreement, the increase provided by this agreement shall be amended to conform to that higher percentage increase. This provision does not apply in situations where the Employer grants individual employees wage increases due to wage corrections, enhanced compensation for out of classification or other extraordinary work assignments, or similar increases in compensation addressing unique situations of individual employees. (Emphasis added).

FOP/OLC Inc. POSITION:

            The FOP asserts that the City proposed the “me too” language during bargaining in order to correct past inequities.

            Robert Houghton, on behalf of the local FOP, began to hear rumors that Court employees were receiving increases beyond 3%.  On April 16, 2004 he sent a memo to Linda Eichelberger, Council Clerk at that time, sought and obtained that information.  It was later conveyed to Mr. Houghton.

            The document, Dated May 13, 2004 from Mary Kay Vance, to Linda Eichelberger, lists 17 employees.  Two are listed as receiving 9% increases, one 8%, one 7%, two 4.5% and one 4%.  The remaining 10 employees received 3%.

            Two of the employees listed were assigned to the prosecutor’s office and all the others to the Court.

            The FOP notes the Wilmington City Council appropriated funds to the Court and Prosecutor’s Office for raises in excess of 3%.

            The FOP argues that the “me too” clause applies to court personnel.  They believe court employees are City employees.  They note court employees are paid by the City and that City Council appropriates the funds and acts as the Courts fiscal agent.  They note court employees carry City Identification card, are under the City health insurance plan.

            The FOP goes on to argue that the “me too” clause is not limited to only those employees appointed by the Mayor.

            They note that the City drafted the language and could have clearly excluded court employees.  They argue that the City is the employer and not the Mayor.   

            The FOP argues the “me too” clause is not limited to wage increases given to a “group” of employees.  To buttress this argument, the FOP relies on a rule of contract interpretation wherein the more specific provision of a contract takes precedence over more general language.

            The FOP believes that Prosecutor’s office personnel did receive pay raises of 4.5% because City Council authorized those amounts. 

            They also believe the city had a burden to justify any exceptions to the “me too” clause by justifying the reasons individuals were given raises in excess of 3%.

            The FOP presented an arbitration decision from Lawrence County by arbitrator Thomas Sedwick dealing with Christmas bonuses that they believe, offers instruction in a similar situation.

            Finally, the FOP notes that that the hiring of Consultant Kessler is inconsistent with the argument of the City that the Court employees are not City employees in that it is the City who hired Mr. Kessler to develop job description after the grievance was filed.

POSITION OF THE CITY OF WILMINGTON:

            The City presented testimony of David Kessler, management consultant, who developed job descriptions for the Clinton County Court. Mr. Keller’s testimony was offered to justify the Court pay adjustments based on changes in the duties of the individual court employees.

            The City defends its actions in this matter by stating the “me too” clause does not apply because they do not believe the Municipal Court employees are City employees.  The City looks to Ohio Revised Code 1901.02 which established the court as the Clinton County Municipal Court as of July 1, 1992.  They note the Court has county-wide jurisdiction.

            The City explains that the only reference to the Court in the City’s Codified Ordinances Section 141.01 which provides for the purchase of motor vehicles for certain court personnel.

            The City views their role as limited to providing a funding mechanism for the Municipal Court.  They note the salaries of the Judge and the Clerk are split between the City and Clinton County.  The current operating costs of the Court are apportioned among all municipal corporations within the County.

            The City notes that neither the Mayor nor the City Council establishes the wages for Court employees.

            The City argues that the “me too” clause applies only to those departments for which the Mayor, or one of the Mayor’s appointees, is the “appointing authority.”

            Finally, the City argues the “me too” clause does not apply based upon the specific facts and circumstances of this situation.  They believe there are five distinctions from the language of section 18.1 of the collective bargaining agreement:

1.      Not given to a “group” of bargaining or non-bargaining unit employees.

2.      Are a result of a wage correction.

3.      Are a result of enhanced compensation paid for out of classification.

4.      Are a result of enhanced compensation paid for other extraordinary work assignments, or

5.      Are a result of a unique situation of individual employees.

            The City offered for instruction, arbitration decisions by Arbitrator’s Keenan and Ellman denied specific “me too” grievances.

DISCUSSION:

            The first issue in this case is to determine the definition of “employer” in this situation.  If the affected employees are under the same “employer” then the FOP has met its first burden in this case.

            This arbitrator shares a concern with FOP as to why Mr. Kessler was employed by the City of Wilmington to write job descriptions for the Municipal Court if the Court is a separate employer. 

            While the testimony offered by Mr. Kessler was professional and consistent with standard human resources and job analysis methodology, the question remains as to why it was done.

            After refection, it appears that the engagement of Mr. Kessler was, at least in part, a “belt and suspenders” effort by the City to defend against this grievance. 

            While, I have no doubt the job descriptions prepared for the Court will be an aid to good management, I do not find this defensive tactic to influence the basic issues in this case unless it is decided all affected employees are under the same employer.

            To determine the definition of “employer” in this case let us examine the Collective Bargaining Statute (ORC 4117) which governs collective bargaining for public employees within the state of Ohio.

            ORC 4117-01 (B) defines “public employer” as “the state or any political subdivision of the state located entirely within the state including, without limitation, any municipal corporation with a population of at least five thousand …..”

            ORC 4117-01 (C) defines “public employee” and then goes on to note exceptions to the definition which, in essence, precludes those persons from the protections of the Act.  Subsection (8) goes on to note, as one of those exceptions, “Employees and officers of the courts…” 

            In this case the evidence shows that the court employees in consideration are not under the control of the Mayor or any of the Mayor’s appointees. 

            Instead the FOP contends that the fact the financial appropriations made by City Council makes these employees of the court, city employees.

            An examination of ORC 4117.10 is helpful in considering this matter.  Section (C) states: “The chief executive officer, or his representative, of each municipal corporation …… is responsible for negotiations in the collective bargaining process, except that the legislative body may accept or reject a proposed collective bargaining agreement.

            The key point in ORC 4117.10 (C) is noted in the concluding section where it states: “When the matters about which there is agreement are reduced to writing and approved by the employee organization and the legislative body, the agreement is binding upon the legislative body, the employer, and the employee organization and employees covered by the agreement.” (emphasis added).

            This language indicates that the statute makes a distinction between the “employer” and the legislative body.

            Thus, it is my conclusion that the mere fact the City Council approves the appropriations of the Court, does not prove that court employees are city employees.

             For the FOP to prevail in this matter the language must be clear and unambiguous on its face.  If the language is unclear or ambiguous, I must look to the mutual intent of the parties and It is clear from the testimony of FOP Representative Barry Gray and retired city official, Linda Eichelberger that there was no shared understanding of the meaning of the “me too” clause.

            In that this case arises under the authority of Ohio Revised Code 4117, the arbitrator has reviewed pertinent opinions and case law of the State Employment Relations Board.  While SERB attempted to further define “public employer” in SERB 86-036, (SERB Reporter) the case is not instructive in this matter in that it deals with the distinctions between public and private employers.

            Likewise, a review of arbitration cases between the State of Ohio and the various Employee Organizations governing state employees yielded only one unreported case[1] in which Arbitrator Rhonda Rivera attempted to determine the definition of “employer” as it was used in the subcontracting language of a Collective Bargaining Agreement.  In that case she basically concluded that the meaning was unclear and ambiguous.

            In determining the clarity and meaning of contract language arbitrators often turn to dictionary definitions to determine the plain meaning of words. 

            Encarta defines employer as “person or group that hires workers, or a person, business, or organization that hires and pays one or more workers.”

            While it can be argued that the City “pays” court employees, there is no evidence to indicate that anyone under the direction of the mayor, has any authority related to hiring court employees.

            The Ohio Revised Code does not specifically define the term “employer” as it relates to municipal corporations, but does define the “Executive Authority” of cities in Chapter VII, Section 733.01

 §733.01. Executive power in cities.

The executive power of cities shall be vested in a mayor, president of council, auditor, treasurer, director of law, director of public service, director of public safety, and such other officers and departments as are provided by Title VII [7] of the Revised Code. 

The Statute goes on to state:

Such executive officers shall have exclusive right to appoint all officers, clerks, and employees in their respective departments or offices and remove or suspend any of such officers, clerks, or employees, subject to the civil service laws.  

            It is my conclusion, that the FOP has not prevailed in establishing that the term “employer”, as it utilized in section 18.1 refers to Clinton County Municipal Court employees.

            It is hard to believe that the Mayor, as the Chief Executive Officer of the City of Wilmington, would have included the Municipal Court in a provision proposed by the City, when it was apparent that the Mayor’s office lacked the ability to control raises granted by the Judge of the Municipal Court.

            That leaves the issue of the two employees of the Prosecutor, who were approved for increases of 4.5%.  Clearly they fall under the executive authority discussed in ORC 733.01.

            The FOP argues that because those employees were approved for 4.5% increases, then they are covered by the language of 18.1.

            This is not the case.  Grievances are ripe when they are based upon actual events, not on anticipated acts.

            The un-refuted testimony of Deputy Auditor Mary Kay Vance is that neither Lynn Turn nor the Law Director’s paralegal received pay raises in excess of 3% in 2004.  Thus, the issue before me is limited to the impact of the increases on Municipal Court personnel.

            Because it is my determination that the employees of the Municipal Court have not been shown to be covered by the term “employer” as it is utilized in section 18.1 of the Collective Bargaining Agreement, there is no need for me to deal with the second question regarding the definition of “group of employees” or the circumstances under which the Court employees were awarded their increases.

OPINION AND AWARD:

            After reviewing the Collective Bargaining Agreement and all documents submitted along with the testimony and arguments of the parties, it is my conclusion that section 18.1 of the Collective Bargaining Agreement has not been violated.

The grievance is denied.

Issued at London, Ohio this 25th of May, 2005.

____________________________ 
N. Eugene Brundige, Arbitrator


[1] OCSEA, Local 11, AFSCME, AFL-CIO and Ohio Department of Administrative Services, January 10, 1994.

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