Department of Natural Resources
OPINION AND AWARD
In the Matter of Arbitration
Order of Police, Ohio Labor Council, Inc.
Ohio Department of Natural Resources
of Hearing: September 21, 2006
arbitration hearing was conducted on September 21, 2006, at the offices of the
Fraternal Order of Police, Columbus, Ohio.
At the commencement of the hearing the
Department of Natural Resources offered a procedural objection stating that
there was no record that there had ever been a demand for arbitration made by
After initial arguments the Arbitrator invited
the parties to present evidence and further argument on the threshold issue.
The Department requested the hearing be delayed
to allow Alicyn Carroll, Office of Collective Bargaining Staff, to arrive and
After a period of time the Department asked
that the hearing proceed on the merits and reserved its right to argue the
procedural objection later in the day. 
Prior to the hearing the Arbitrator, upon a
request of the FOP, issued a subpoena for various documents relating to this
grievance. In addition to the
documents acquired by subpoena, the parties jointly submitted the collective
bargaining agreement, the grievance trail and numerous other documents.
The issue before the Arbitrator can be stated
as, “Did the Department of Natural Resources violate Article 22 of the
Collective Bargaining Agreement when it assigned Watercraft Officers to
Hurricane Katrina Relief? If so,
what shall the remedy be?”
This situation arose in response to a request
received by the State of Ohio for assistance in the aftermath of Hurricane
Katrina. The Department of Natural Resources was notified that
assistance had been requested by the federal government to assist in the Gulf
The request was conveyed on September 2, 2005.
The initial request was for ten (10) Watercraft Officers and five (5)
At that time it was believed that the Parks Division of the Department
would also be sending a team.
On Saturday September 3, 2005, Chief Quinn
was notified that the plans had changed in that the Parks Division was not going
to send a team and the Watercraft Division needed a team of twenty (20) officers
and ten (10) vehicle units. The
team was to be deployed the following day, Sunday, September 4, 2005.
The Employer surveyed the Watercraft Officers
at the ten (10) area offices to solicit volunteers who would be willing to serve
on this search and rescue team.
Seventeen (17) FOP officers were selected along
with three (3) exempt supervisors and those twenty (20) persons departed for
Mississippi on Sunday. All
seventeen (17) FOP officers were in the Gulf Region for four days and all worked
in excess of forty (40) hours and earned overtime compensation.
Three identical grievances were filed regarding
this matter and all were designated as class action grievances on behalf of
those persons who had volunteered and who were more senior than one or more of
the persons selected.
PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT
22 - HOURS OF WORK AND OVERTIME
22.01 Work Week and Work Day
The normal work week for all full-time permanent employees shall be forty (40) hours. The work week shall commence at 0:00 hours on Sunday and end at 23:59 hours on Saturday. The normal work day shall be eight (8) consecutive hours, or ten (10) consecutive hours for those scheduled to work four (4) days a week.
The normal work week for Wildlife Officers and Liquor Control Investigators shall consist of five (5) eight (8) hour days.
work normally performed by Wildlife Officers within
an eight (8) hour day may include but not be limited to:
enforcement, public relations, phone calls, etc.
22.02 Posting of Work Schedules
is understood that the Employer reserves the right to limit
the number of persons to be scheduled off work at any one
time. Work schedules will be posted for a work period of four
(4) weeks or greater and shall be posted for a minimum of
four (4) weeks in advance. Work schedules shall not be established
solely to avoid overtime but for efficient operations.
After the schedule has been posted it will remain
in effect for the duration of the posted period and may
be changed only with four (4) weeks notice of a date or in
emergency situations. Less than full time (LTFT) employee
schedules may be modified with two (2) weeks notice
to facilitate time off for other officers and/or provide coverage for the
advanced scheduled absence of an officer and/or in the case of an emergency. LTFT employees’ scheduled
hours cannot exceed forty (40) hours in any week. For the purposes of
this Article, LTFT means part-time permanent
in the Departments of Mental Health and Mental Retardation/Developmental
Disabilities. For purposes of administration
of this Article, training opportunities and employee leave notices shall not in themselves constitute emergencies.
Records regarding work schedules shall be retained
for twelve (12) months in each facility. Within a classification,
requests for days off will be determined by classification seniority. Shift assignments will be established by
classification seniority within that classification, except that
all bargaining unit members classified as Police Officer 1 and
2 shall use bargaining unit seniority within the respective
agency. Employees at work facilities without work schedules
shall be notified of special assignments two (2) weeks in advance whenever
possible except for unforeseen or mitigating circumstances including emergency
The Employer will attempt to schedule employees so as to have two (2) consecutive days off.
The parties understand that employee cooperation will enhance the implementation of this section.
FOP/OLC staff representative and management may agree
to waive or modify any part of this Article...
22.08 Overtime Assignment
Unscheduled overtime will be offered to employees on duty starting with the most senior qualified employee, except when the nature of the enforcement duties being performed need to be completed by the incumbent. If the overtime assignment is not filled by the above, it will be offered to the most senior qualified employee available who is assigned to that work location. If the overtime assignment cannot be filled by either of the above, the least senior qualified employee on duty will be required to work. If the least senior employee is unavailable, then the next least senior employee(s) shall be required to perform the overtime assignment(s). Scheduled events and overtime to be worked at other facilities will follow the selection procedure outlined above with seniority being determined in the defined area (i.e., facility, park, and region, state) from which the member is to be selected. In departments or divisions in which services and/or facilities are regionalized or in which regionalization is proposed or being implemented, regionalization shall be a viable topic for labor/management committees. Committees may discuss and make recommendations to the appropriate parties regarding scheduling and overtime in the regions. Wildlife Officers' scheduling of overtime will be governed by the directive currently in effect, except that changes may be made to such directive as deemed necessary by the Chief. If such changes affect the terms and conditions of employment, they will be negotiated in good faith with the FOP/OLC.
faith attempts will be made to equalize scheduled overtime at any one facility.
Scheduled overtime is defined as any overtime of which the Employer has
forty-eight (48) hours advance notice.
OF THE FOP:
The contract clause being grieved by the FOP
(22.08) is very clear. The question
before the Arbitrator is which contract provision governs.
The Employer has not disputed that overtime was worked.
The FOP notes that the question before the Arbitrator is can the Employer
submit a credible claim that it did not know whether overtime would be worked.
The FOP notes that there is no disagreement
that a one way trip to the Gulf Region is fourteen (14) hours in duration.
If the Employer believed that overtime would
occur then Article 22.08 must govern the assignment.
The FOP notes that the original answer to the
grievance is based on lack of proof that overtime was worked.
Only after the delivery of the materials required in the subpoena for
records, did the Employer abandon that defense.
The FOP requests that the grievance be granted
and that the persons covered by the grievances be compensated at the overtime
rate for hours they were denied by their non selection.
OF THE EMPLOYER
The Department of Natural Resources argues that
there was not a contractual violation. It responded to a national emergency quickly while taking
into account the needs of the boaters in Ohio as well as the people in need of
rescue in the Gulf Region.
It believes Article 22.02 is the governing
contractual provision in that it merely changed the schedule of employees in an
The Employer notes that the provisions of
Article 22.08 were properly applied to the group of employees assigned to the
Gulf Region in that all were afforded an equal amount of overtime.
The Employer notes that the Division did not
deem the situation as an overtime opportunity.
It also notes that the Employer was preparing a
second response team in case it was requested.
Persons not assigned to the first group would have had an opportunity to
be assigned to the second.
(Then) Assistant Chief Quinn then testified that he
considered seniority when assigning officers but also attempted to balance the
officers remaining in Ohio between junior and experienced officers.
He noted the occurrence of a busy Labor Day weekend at the same time the
volunteers were deployed to the Gulf Coast.
The Employer argues that it had a management
right to assign persons consistent with Article 22.02 of the contract and thus
the grievances should be denied.
facts in this matter are not in dispute. Soon
after Hurricane Katrina struck, the federal government issued a call for
assistance. The State of Ohio
agreed to send personnel to help with search and rescue.
turnaround time was very brief. Notification
was received on Friday and the teams were to depart on Sunday.
Chief Quinn began to seek volunteers to staff the effort. The needs of the State of Ohio were considered along with the
skills that would be needed to most effectively assist in the Gulf Region.
It was decided that only officers who had search and rescue training
would be appropriate. Likewise, the one paramedic within the group of employees
would be of great assistance.
decision was made that any persons who volunteered with added restrictions or
qualifications would not be considered due to the short time period for
finalizing the group.
evidence indicates that the State sent employees south with the expectation that
their travel would take fourteen (14) hours each way and the deployment could
last for up to two weeks.
the Parks Division of the Department of Natural Resources thought it would also
be sending a team, it called the FOP and consulted on how to accomplish the goal
without violating the Collective Bargaining Agreement.
do not totally agree with FOP Advocate Mr. Cox that the question the Arbitrator
must answer is which section of the Collective Bargaining Agreement governs in
sections must be complied with. There
is no question that the Department of Natural Resources can change schedules in
response to an emergency. An
emergency was clearly established in this situation.
more relevant question for this Arbitrator is whether the right to change
schedules excuses the Employer from the requirement to offer overtime to all
eligible employees if it is anticipated, even though the overtime will occur as
the result of an emergency situation.
the Employer could convince the Arbitrator that it planned to send employees on
this assignment with the expectation that they would remain within forty (40)
hours of work per week, or if the Employer had directed its on-site supervisors
to refuse to assign or approve overtime then the provisions of Article 22.08
would not apply.
record shows that overtime was approved thus the conclusion to be drawn is that
no such restriction was placed.
the realities of the situation to which the Department was responding require a
un-refuted testimony it was established that the trip was approximately fourteen
(14) hours in duration. The
deployed officers and supervisors were sent with the potential of saving lives.
A reasonable person cannot reach the conclusion that the officers
participating in this rescue effort were expected to hold their hours to forty
(40) per week. Even if the
deployment had lasted for the possible two weeks, the officers would have been
limited to only twenty six (26) hours of work per week.
As the situation developed wherein they returned the same week, the
actual work time would have been limited to twelve (12) hours.
very fact that the Employer properly termed and identified this event as an
emergency argues against such a limitation being expected of the employees.
Employer bases much of its defense on the fact, “The Division did not deem
this to be an overtime situation.” (Nielsen’s closing argument). It is not necessary for someone to call a duck a duck for it
to be recognized for what it is. Likewise,
it is not necessary for someone to define, in specific words, an overtime
opportunity if the Employer should reasonably have concluded that overtime would
the record would indicate that the Employer considered the need for seniority
when (then) Assistant Chief Quinn addressed the situation in his memo to William
McGarity in which he stated, “I was informed that Doug Natoce spoke with
the president of the FOP and an agreement had been reached that we need not
worry about seniority for duty assignments, considering the gravity of the
deployment.. For that reason I
didn’t place seniority at a high priority.” 
the only application of seniority noted in the record of this case relates to
overtime, this Arbitrator must conclude that Assistant Chief Quinn relied, to
his detriment, on that representation which was never proven by the Employer and
vehemently denied by the FOP. 
is highly improbable that the drafters of Article 22 of the Collective
Bargaining Agreement anticipated a situation like this one. Thus it is unfortunate that well meaning people got into the
situation reflected in this case.
drafters of the Agreement did provide a vehicle for handing such unanticipated
situations with the language when they wrote in Article 22.02, “The FOP/OLC
Staff Representative and management may agree to waive or modify any part of
is a unique and helpful provision that permits flexibility in situations such as
this one. Its existence increases the responsibility upon management to utilize
it when unique situations arise.
the reasons herein stated, I must conclude that the Employer knew, or should
have known, that overtime would likely result from this assignment, thus the
language of Article 22.08 must be strictly applied - unless a waiver or
modification of the provision is worked out with the FOP/OLC Staff
concluded, for the reasons herein stated, that the Collective Bargaining
Agreement has been violated we turn to the question of the appropriate remedy.
improperly assigned overtime is always a challenge.
There is a reluctance on the part of many arbitrators to pay people for
work not performed and yet persons have been denied the opportunity to do the
work and thus to receive the overtime compensation. For many years the governing
arbitral practice seemed to be not to award monetary payment.
1980 Arbitrator Morris Shanker concluded, “The grievance is denied. The Company is not required
in all cases to remunerate in cash an employee entitled to an overtime
assignment who failed to obtain it. Rather, unless it is not feasible to do so,
the Company may remedy the situation by offering that employee a future overtime
work assignment.” 
In a similar case Arbitrator Fredric N. Richman
wrote, “Employer is not required to pay
employee for overtime opportunity lost when employer failed to reach him due to
inadvertent error, since there is no contractually specified punitive assessment
for failure to properly implement overtime and seniority provisions in the
Recently the trend appears to be that more
arbitrators remedy missed overtime opportunities by payment of the funds that
would have been earned had the employee been properly called.
The respected arbitrator James Clair Duff
points out another problem with a non-monetary remedy.
The awarding of the next overtime opportunity often inflicts a wrong on
another bargaining unit member who would have been entitled to the new
opportunity. Arbitrator Duff writes,
“It must be
observed that the Employer's suggested remedy is not one where it proposes to
create a make-up overtime opportunity. In fact, it suggests that it can
perpetuate or compound its cycle of contractual right infringement and continue
to take the next overtime opportunity from the person contractually entitled to
it in any given case as a remedy for the “wrong” already inflicted
previously on someone else, such as the Grievant.
Arbitrator John R. Thomas reached a similar
conclusion in 1989 when he wrote,
the remedy is not specified in the contract the weight of arbitral authority is
to award monetary relief. The practice of paying for lost overtime, in the
absence of express contract language, is consistent with fundamental contract
law that one who has suffered monetary loss due to breach of contract will be
compensated by payment of damages.” 
FOP asks that each aggrieved bargaining unit member be paid for the hours
agree. Without evidence of a
different past practice between the parties, I conclude the proper remedy is to
pay those individuals identified.
grievances are granted and the remedy requested is ordered.
Those Officers who volunteered without restrictions or conditions, who
were more senior than other Officers selected shall be compensated for an amount
of overtime equal to that earned by the less senior Officers who were selected
The Arbitrator will retain jurisdiction to
resolve any disputes that may arise regarding the implementation of this award.
Issued at London, Ohio this 21th day of October, 2006.
 At the conclusion of the respective presentations of the parties, the Employer withdrew its procedural objection. The parties then agreed that the matter was properly before the Arbitrator for determination.
 Truck and Boat
 Chief Quinn was serving as Assistant Chief at the time this incident occurred.
 Management Exhibit 2.
 Testimony of Senior Staff Representative Joel Barden.
 Joint Exhibit 1, The Collective Bargaining Agreement, page 52.
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