2006 NAC 126 Ohio Department of Natural Resources and Fraternal Order of Police

Title: Ohio Department of Natural Resources and Fraternal Order of Police
Date: October 21, 2006
Arbitrator: N. Eugene Brundige
Citation: 2006 NAC 126

An 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 the FOP.

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 testify.

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. [1]

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 Coast region.

The request was conveyed on September 2, 2005. The initial request was for ten (10) Watercraft Officers and five (5) vehicle units.[2] 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[3] 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.

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.

Routine 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.

It 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 situations.

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.

The FOP/OLC staff representative and management may agree to waive or modify any part of this Article...

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.

Good 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.

The contract clause being grieved by the FOP (22.08) is very clear. The question before the Arbitrator is which contract provision governs.

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.

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 emergency situation.

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.

The 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.

The turnaround time was very brief. Notification was received on Friday and the teams were to depart on Sunday.

Assistant 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.

The 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.

The 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.

When 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.

I 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 this situation.

Both 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.

The 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.

If 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.

The record shows that overtime was approved thus the conclusion to be drawn is that no such restriction was placed.

Likewise, the realities of the situation to which the Department was responding require a different conclusion.

In 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.

The very fact that the Employer properly termed and identified this event as an emergency argues against such a limitation being expected of the employees.

The 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 occur.

Instead, 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.” [4]

Since 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. [5]

It 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.

The 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 this Article.”[6]

This 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.

For 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 Representative.

Having concluded, for the reasons herein stated, that the Collective Bargaining Agreement has been violated we turn to the question of the appropriate remedy.

Remedy for 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.

In 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.” [7]

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 contract.”[8]

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. “ [9]

“Where 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.” [10]

The FOP asks that each aggrieved bargaining unit member be paid for the hours missed.

I agree. Without evidence of a different past practice between the parties, I conclude the proper remedy is to pay those individuals identified.

The 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 and deployed.

The Arbitrator will retain jurisdiction to resolve any disputes that may arise regarding the implementation of this award.

[1] 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.

[2] Truck and Boat

[3] Chief Quinn was serving as Assistant Chief at the time this incident occurred.

[4] Management Exhibit 2.

[5] Testimony of Senior Staff Representative Joel Barden.

[6] Joint Exhibit 1, The Collective Bargaining Agreement, page 52.

[7] Price Brothers Company & Concrete Product Workers Local 217 (76 LA 10)

[8] Liquid Carbonic Corp., & General Warehousemen Union, Local 589 (84 LA 704) 1985

[9] In re WARREN COUNTY [Ohio] SHERIFF and WARREN COUNTY DEPUTY SHERIFF'S BENEVOLENT ASSOCIATION, (120 LA 925) 2004.

[10] In re GEORGIA-PACIFIC CORP. and UNITED STEELWORKERS OF AMERICA, LOCAL 1861 U (93 LA 4)

APPEARANCES:
FOR THE STATE: Brad Nielsen, Labor Relations Officer Buffy Andrews, Labor Relations Spec. Bill McGarity, Deputy Chief, Watercraft Michael Quinn, Acting Chief Erica Berencsi, OCB Abblie Workman, OCB Intern	FOR THE FOP/OLC: Paul Cox, Chief Counsel David Dobbins, Grievant Sally Hess, Grievant Renee Engelbach, Paralegal Joel Barden, Staff Representative