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Title: Town
of Haverstraw and Haverstraw Town PBA
Date: February 4, 2007
Arbitrator: Phyllis
Almenoff
Citation: 2007 NAC 108
NEW
YORK STATE PUBLIC EMPLOYMENT RELATIONS BOARD
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In the Matter of the Arbitration
- Between –
Town
of Haverstraw
“Employer”
-and-
Haverstraw
Town PBA
“Union”
Case Number: A2006-172
Issue:
Overtime Eligibility - Sergeants
Site:
Garnerville,
New York
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APPEARANCES:
For the Employer (Town)
Ronald A. Longo,
Esq.
445 Hamilton Ave. 15th Floor
White Plains, NY 10801
For the Union (PBA)
Raymond G. Kruse,
Esq.
865 North Main Street
Spring Valley, NY 10977
BEFORE: DR. PHYLLIS ALMENOFF, ARBITRATOR
WITNESSES
TESTIFYING
EMPLOYER
Called by the Employer
John Lawless
President, Haverstraw PBA
Chris Doebler
Vice President, Haverstraw PBA
UNION
Called by the Union
Charles B. Miller
Chief of Police, Town of Haverstraw Police Department
Martin Lund Lieutenant, Town of Haverstraw Police Department
INTRODUCTION
This
grievance was submitted to Arbitrator Phyllis Almenoff pursuant to the terms set
forth in Article XVIII of the Collective Bargaining Agreement (CBA) between the
parties (Joint Exhibit 1) for a final and binding resolution of the issue.
The Arbitrator was jointly selected by the parties from a list submitted
to them by the New York State Public Employment Relations Board
The
grievance was sent via facsimile to the Town of Haverstraw Town Board on May 19,
2006 and received by mail on May 26, 2006 pursuant to Article XVIII fulfilling
the requirements of the third stage of the grievance procedure detailed in the
CBA without a satisfactory resolution. The grievance was properly before the
Arbitrator.
The
arbitration hearing took place on December 7, 2006 at the Town Hall located at 1
Rosman Road in Garnerville, New York. At
that time both parties were afforded a full and fair opportunity to present
testimony, offer evidence and arguments in support of their respective positions
and cross-examine witnesses. Testimony was taken under oath.
The Town of Haverstraw (Employer) was represented by Ronald A. Longo,
Esq. and the Haverstraw Town Police Benevolent Association (Union) by Raymond G.
Kruse, Esq. Both the Employer and
the Union agreed to send post-hearing briefs to the arbitrator and each other on
Monday, January 8, 2007. An extension of one week was requested by the Employer
and granted by the Arbitrator with the consent of the Union.
The record was closed on January 23, 2007 when both briefs were received
through regular mail.
STATEMENT
OF THE ISSUE
The
parties stipulated to the following issue (Joint Exhibit 4):
Did
the town violate the rights of squad sergeants under Article XIX of the CBA by
doing away with the combined overtime list?
If so, what shall be the remedy?
The
grievance (Joint Exhibit 2) states the following:
The Town has unilaterally restricted the Sergeants to
work overtime to cover shift shortages. This
violates a longstanding past practice of utilizing an overtime callout system
that was implemented several years back after negotiations between the Town and
the PBA.
The PBA demands reinstatement of past practice and
that the grievants be made whole.
PERTINENT
CONTRACT LANGUAGE (Joint
Exhibit 1)
Article V – WORK
WEEK
*
* *
b.
Effective January 1, 2001, the work
chart shall be changed to a 4-2 chart, thereby
eliminating the 17.5 chart days for patrol.
Upon implementation of the 4-2 chart, prior existing rules regarding use
of time off, with the exception of personal leave, shall be discontinued and the
following shall apply: Without
regard to officers off from; a shift because of sick leave, training, military
leave or personal leave, and without regard to minimum staffing set by the
administration for such shift, up to two (2) officers may apply and shall be
granted time off from such a shift as a matter of right.
Where the number of officers assigned to a given shift is nine (9) or
more, such number of officers permitted off on a given shift as a matter of
right shall be increased to three (3), and where the number of officers assigned
to a given shift is twelve (12) or more, such number of officers permitted off
on a given shift; as a matter of right shall be increased to four (4).
Article XVIII – GRIEVANCES
In order to maintain
a harmonious and cooperative relationship between the Town of Haverstraw and the
police officers subject to this agreement, it is hereby declared to be the
policy of the Town and of the following procedure, free from coercion,
interference, restraint, discrimination or reprisal. All of this procedure shall be liberally construed for the
accomplishment of this purpose.
Basic
Standards and Principles
1.
Every police officer subject to this Agreement shall have the right to
present his grievance in accordance with the procedures described hereunder. The Chief of Police and the Police Commissioner shall be
responsible for carrying out the provisions of this procedure with respect to
grievances arising hereunder.
* *
*
Third Stage -
In the event the Police Commissioner is unable, after five (5) days
time
to satisfactorily resolve the grievance, the matter shall be referred to the
Town Board who shall sit as grievance board for all
grievances
which shall be referred to them hereunder.
All grievances and hearings thereon which shall be referred to the Town
Board shall set a date with all possible haste to hear and resolve such
grievance within thirty (30 )days and time shall be of the essence.
* *
*
Fourth
Stage -
In the event the Board is unable to
satisfactorily resolve the grievance within thirty (30) days of the referral of
the grievance to the Board, the grievance may be submitted to arbitration
through the Public Employment Relations Board and subject to its rules and
regulations concerning the selection of an Arbitrator.
The decision of the arbitrator shall be final and binding upon the
parties. The Arbitrator shall
render a decision within thirty (30) days of the close of the hearing. Costs of
The
Arbitrator shall be borne equally by
both sides.
Article XIX – FRINGE
BENEFITS
All fringe benefits accrued in the past and future will at no time be
relinquished.
Article XI - OVERTIME
COMPENSATION AND COMPENSATORY TIME OFF
1.
Overtime compensation at the rate of 1 and ½ hours for each hour of
overtime earned shall be compensated either in money, or in time off as provided
for herein.
*
* *
8.
The Chief of Police shall assign numbers to personnel
and said assignments shall remain in effect during the life of this contract,
except:
(a)
When in the opinion of the Chief of Police, a re-assignment of individual
police officers is in the best interest of the department or,
(b)
Upon request of individual police officers to mutually change numbers
subject to the approval of the Chief of Police, and provided change does not
necessitate payment of overtime to any police officer affected by a change under
this subsection.
Nothing in this Article is to be construed in such
manner as to deny the Chief of Police full latitude in the reassignment,
temporary re-assignment, or temporary additional assignment, of personnel for
emergencies as determined by the Chief of Police…..
OTHER PERTINENT LANGUAGE
Memo
From town of Haverstraw Police
department (Union Exhibit 3)
To:
All Officers
From:
Sgt. Nugent
Ref:
Overtime Procedures
Date:
5 December 2002
As per the Chief,
effective immediately, a new overtime procedure will be in place to facilitate
full-supervision in the patrol division. New
lists have been created for this purpose: (Sergeants, Officers, and Combined)
the following guidelines will determine which lists shall be used for call-out:
*
* *
BACKGROUND
The
Town Board of the Town of Haverstraw, herein referred to as the “employer”
recognizes the Town of Haverstraw PBA, herein referred to as the “employee”
as the exclusive bargaining agent for all full time police officers, with the
exception of Lieutenants and the Chief of Police, in accordance with the
provisions of the Public Employee’s Fair Employment Law of the State of New
York. The Grievants are represented by the Union throughout the grievance
procedure, including arbitration, in accordance with the Agreement.
The
last full written Collective Bargaining Agreement (CBA) negotiated between the
parties covers the period from January 1, 2000 to December 31, 2002. (Joint
Exhibit 1) That agreement was modified by an Interest Arbitration Award that
extended the CBA from January 1, 2002 through December 31, 2004. (Joint Exhibit
3) The Interest Award did not change any provision of the
Contract at issue in this arbitration. The Town and the PBA are awaiting an
Interest Arbitration Award covering January 1, 2005 through December 31, 2006.
The parties stipulated that proposed changes would not have any bearing on this
proceeding.
Prior to 2001 there was one (1) overtime list used by the Administration to determine the assignment of overtime to all uniformed personnel. (police officers and sergeants) Sergeants were not assigned to a particular squad. Rather, they were assigned to rotate along with police officers. Overtime was rotated amongst the entire bargaining unit using one list.
In 2001, pursuant to Article V(4)(b) of the collective bargaining agreement, a new work chart was put into place whereby members of the bargaining unit would work four (4) days on duty and have two (2) days off. Shortly thereafter, the Town agreed to increase the compliment of patrol sergeants so that there would be two (2) sergeants assigned to each squad.
Specific
staffing ratios are utilized for a squad to provide supervision of police
officers by sergeants. An overtime
procedure is utilized to cover shortages of officers and sergeants. In December
of 2002, a new overtime procedure was put into place to facilitate full
supervision in the patrol division. New
lists and guidelines were created for this purpose. (Union Exhibit 3) A
Sergeants List; an Officers List and a newly developed Combined List were
created. The Guidelines were used to determine which list was to be used for
call-out depending upon specific shortages.
The Sergeants List was to be used when no sergeant was working.
The Combined List was to be used when one (1) sergeant was working.
The Combined List went into effect in December 2002 and was terminated by
the new Chief of Police in March of ’06.
Prior
to 2006, the Village of Haverstraw had its own police force and the Town of
Haverstraw had a police force. The
Village then disbanded its police force resulting in the Town being assigned
responsibility to police the Village. What is more, the Town had to absorb the
Village police force and integrate its staff into the Town Police.
This resulted in the addition of 23 police officers to the existing 45
police officers increasing the police staff by 50%. At the time of the transition there were five (5) sergeants
in the village force and nine (9) sergeants in the town force resulting in an
excess of sergeants based on established ratios for supervision.
The
grievance was brought on behalf of the sergeants.
POSITION
OF THE PARTIES
Position
of the Employee
The
Employee argues that Article XIX of the Collective Bargaining Agreement was
violated when the Town eliminated the Combined Overtime List. To support its
position, the PBA asserts the following:
1.
The use of the Combined Overtime List (COL) is a longstanding past
practice that was implemented in 2002.
2.
The use of the COL was agreed to by the Chief of Police and the PBA
President in 2002.
3.
The rescinding of the COL list in 2006 restricted the assignment of
Sergeants to work overtime in order to cover shift shortages. This was a unilateral action and was not negotiated with the
PBA.
4.
The Combined List was utilized for a period of time in 2006.
5.
The elimination of the Combined Overtime List was a fringe benefit of monetary
value to the sergeants and provided increased opportunity for Sergeants to have
time off. (Should the grievance be sustained, the deficit would need to
be established.)
6.
There was no need to eliminate the Combined list when the Village police
were transferred into the Town police force.
7.
The President of the PBA did not
have the authority to agree to the elimination of the Combined Overtime List.
Position
of the Employer
The
Town contends that the Contract has not been violated.
In support of its position, the Town offered the following arguments:
1.
The Combined Overtime List does not constitute a “fringe benefit.”
2.
Article VI is the “overtime” clause in the CBA and does not provide
any restriction on the Town’s ability to change the overtime distribution.
3.
The Village disbanded its police force requiring the Town to absorb the
officers resulting in an increase of 50% and an excess of police Sergeants.
Three of the Village Sergeants had more seniority than Town Sergeants.
The town did not reduce the rank of the excess Sergeants by reclassifying
them as patrolmen. All sergeant positions were maintained.
4.
The Town held several discussions with the PBA concerning the elimination
of the COL. Various concessions
were discussed including increasing the number of sergeants that could be off on
a shift.
5.
The PBA acquiesced to the change.
6.
The continued use of the Combined
Overtime List had potential cost implications for the Town.
ANALYSIS
OF THE EVIDENCE
The
issue to be determined in this dispute is whether the town violated the rights
of squad sergeants under Article XIX of the CBA by doing away with the combined
overtime list?
If so, what shall be the remedy?
There
are several issues that must be considered. They are as follows:
1.
Did the Chief of Police have the authority to revoke the use of the
Combined Overtime List (COL)?
2.
Did negotiations concerning
the elimination of the Combined Overtime List take place?
3.
Is the Combined Overtime List a fringe benefit?
4.
Was the use of the Combined Overtime List (COL) a long time past
practice?
With regard to the first issue
to be considered, the Collective Bargaining Agreement is silent on the issue of
the Combined Overtime List. However, Article XI which deals with overtime compensation
and compensatory time off states in part:
Nothing in this Article is to be construed in such
manner as to deny the Chief of Police full latitude in the reassignment,
temporary re-assignment, or temporary additional assignment, of personnel for
emergencies as determined by the Chief of Police…..
A memo issued by the Town of
Haverstraw Police Department on December 5, 2002 concerning overtime procedures
states the following:
As per the Chief,
effective immediately, a new overtime procedure will be in place to facilitate
full-supervision in the patrol division. New
lists have been created for this purpose: (Sergeants, Officers, and Combined)
the following guidelines will determine which lists shall be used for call-out.
(Union Exhibit 3)
This memo that initiated the use
of the Combined call out list does not indicate that the issue was negotiated or
that there was agreement with the Union concerning the establishment of the COL.
Neither testimony, nor docnuments, nor signed agreements establishes that this
issue was negotiated by the Chief of Police and the PBA. The memo is not
jointly signed by the Union and the Employer.
The directive issued in 2002 is clearly attributed to the Chief of
Police..
The second issue to consider is
whether negotiations concerning the elimination of the COL took place.
Although the Union did not make a request for impact bargaining, there
was considerable testimony that discussions concerning the discontinuation of
the list took place. Various proposals and suggestions were made by the PBA
officers. The Employer offered
suggestions for compromise on the issues. The
Employer believed that there was agreement concerning the elimination of the
combined list.
In any event, even if there is a
duty to bargain, there is no obligation to reach agreement.
The third issue that needs be
considered is whether the COL constitutes a benefit under the Collective
Bargaining Agreement, and if it does, whether Article XIX is controlling.
All fringe benefits accrued in the past and future will at no time be
relinquished.
The negotiated agreement between
the parties does not provide a definition of “fringe benefits” nor does it
indicate those that will not be relinquished. The COL did benefit the sergeants
financially and in their ability to schedule time off. The question is whether
it is a bona fide fringe benefit such as retirement, hospital and dental
insurance, life insurance, vacation, holidays, sick leave, etc; All of these
fringe benefits were the result of negotiations and are enumerated in the
Contract. The COL was not a
negotiated fringe benefit. There is no reference to the Combined Overtime List
in the negotiated Agreement. The
use of the Combined Overtime List
does not meet the test of a fringe benefit.
The final issue to be determined
is whether a binding past practice exists with regard to the use of the Combined
Overtime List or whether it is a non-binding “present way of doing things.”
The use of the COL was put into effect in
December of 2002 to facilitate full supervision in the patrol division and was
utilized to insure that two sergeants were working on each squad on each shift..
The Combined List was to be used when one (1) sergeant was working.
The
circumstances surrounding the creation of the practice changed in 2006 when the
Village of Haverstraw disbanded its police force and the Town had to absorb the
Village police force and integrate its staff into the Town Police.
The Police force was increased
from
45 police officers to 68 officers or a 50% increase in police staff.
At the time of the transition there were five (5) sergeants in the
village force and nine (9) sergeants in the town force resulting in an excess of
sergeants based on established ratios for supervision.
When the transition occurred, all town sergeants retained their rank even
though some village sergeants were senior to town sergeants. The Combined List
went into effect in December 2002 and was terminated by the new Chief of Police
in March of 2006.
The
argument of past practice is rejected for the following reasons:
1.
The use of the Combined Officer List (COL) does not appear in the
Collective Bargaining Agreement.
2.
The use of the COL was initiated by the Chief of Police.
3.
A practice cannot be separated from the circumstances that led to its
creation. A change in these
circumstances permits the discontinuation of that practice.
Certainly, the assimilation of the Village Police Force into the Town’s
Force and the excess number of Sergeants constitutes a change in circumstances.
The Combined Overtime List was no longer needed.
4.
A limited response to special circumstances does not constitute a past
practice. It is well established
that an arbitrator may not expand its scope.
5.
The determination of staffing levels
represents a management function.
6.
The COL has only been is use for three years and four months and is not a
long standing practice.
CONCLUSION
The
parties stipulated to the following issue (Joint Exhibit 4):
Did
the town violate the rights of squad sergeants under Article XIX of the CBA by
doing away with the combined overtime list?
If
so, what shall be the remedy?
After
providing full, fair, and careful consideration to all evidence and arguments
presented by both parties, I conclude that the Combined Overtime List does not
have contractual status, does not constitute a past practice and is not a fringe
benefit.
The
burden of proof in a Contract interpretation case rests on the Employee. The
Union has not sustained this burden.
The
Collective Bargaining Agreement has not been violated.
The grievance is denied in all respects.
AWARD
Based
on the evidence and testimony presented, the Collective Bargaining Agreement has
not been violated. The Union’s
grievance is denied in all respects.
State of New York )
County of Nassau
)
I, Phyllis Almenoff, do hereby affirm that I am the
individual described in and who executed this instrument which is my award.
DATED:
February 4, 2007
______________________________
Phyllis Almenoff, Arbitrator
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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