28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

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

-----------------------------------------------------------------------------X

                                                

                                         

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

---------------------------------------------------------------------------X

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

 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028