By Jim Cline and Troy Thornton

Arbitrator Matthew M. Franckiewicz found that the Employer, Allegheny County, Pennsylvania, correctly denied access to paid parental leave to Officer Randy Alexander. Allegheny Cnty., 2021 BL 159834, 2021 BNA LA 32Although the language in a new interest arbitration award allowed the leave to be taken at any point within the first 12 months of a birth, Arbitrator Frankiewicz held that the interest arbitrator’s award, which  specifically ordered the new language on a nonretroactive basis, was only meant to apply to births that occurred after the award was published.

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By Jim Cline and Troy Thornton

Arbitrator Patrick Halter found that a union representing federal corrections officers in Seagoville, Texas, failed to file a timely grievance on an alleged arbitrator transfer when it believed four of its members had been transferred arbitrarily. Halter ruled in Federal Bureau of Prisons, 2020 BNA 1413 that even though the employer failed to respond to the grievance in a timely manner, a greater error was made by the Union in failing to file a grievance within the 40 days allowed in the CBA.

            The Union had alleged that the Employer violated the CBA by transferring Officers Boykin, Horace, Smith, and Lapore away from their bid-for posts within the corrections facility. On November 21, 2019, Boykin and Horace were moved away from their post in the Segregated Housing Unit into the Phone Monitoring Room. On February 25, 2020, Smith and Lapore were also moved from the Segregated Housing Unit into the Phone Monitoring Room. The Union believed that these transfers were unnecessary, and the common link between the four individuals is that they were all under investigation for other disciplinary matters.

The parties met informally, as is suggested in the CBA, on March 5, 2020. After failing to reach a settlement through informal discussions, the Union formally grieved the issue on April 15, 2020.

            The Union argued that it should be entitled to a judgment in its favor without a hearing because the Employer failed to respond to its April 15, 2020 grievance. Under the language of the CBA, the Employer is allowed 30 days to respond to a grievance. Based on the April 15 filing date, the Employer’s response should have been received by May 15, 2020. Instead, the Employer failed to respond at all.

            The Employer, on the other hand, argued that the grievance should be dismissed on the basis that the Union did not file its grievance in a timely manner. Despite language in the CBA suggesting that the sides attempt to meet and resolve issues informally, the Union had 40 days to file a grievance, and failed to do so. For the transfer involving Boykin and Horace, 40 days from the date of the transfer would have meant December 31^st, 2019. For the one involving Smith and Lapore, 40 days would have meant April 5, 2020.

            Arbitrator Halter felt that the timeliness issue should be resolved before anything else and examined the grievance timing language. Because the language of the CBA required a grievance to be filed within 40 days from the event, or within 40 days of when the individuals involved should have been aware of the grievance, an issue existed as to whether the employees should have been aware of the issue on November 21^st and February 25^th. Ultimately, Halter determined that the actions involved were straightforward enough that the officers should have been aware that the actions might be grievable, which resulted in his ultimate determination that the grievance was not filed in a timely manner. As a result, the grievance was denied.

A reassignment is not an esoteric act unannounced to affected officers. In this situation officers were removed from their bid posts or assignments – their preferred posts – and placed in PMU pending investigations referenced by FCI under Article 30 – Disciplinary and Adverse Actions. The officers were reasonably aware when this grievable event occurred – November 21, 2019 (Officers Horace and Boykin) and February 25, 2020 (Officers Lapore and Smith) – as they were the recipients of it. The 40-day contract window to file a grievance was not extended by having the Union file a grievance April 15, 2020, identifying the Local as the grievants.

            Most arbitrators are reluctant to find the grievance is resolved on a “forfeiture” based on lapsed timeliness. But it does occur when grievances are filed well beyond agreed upon timelines. Always be mindful of when events occurred and what the Grievance Procedure timelines. They are mandatory, not optional.

One key takeaway from this decision is that language encouraging the informal settling of grievances may come back to punish well-intending executive boards. Because the lapsed grievance situation arises so often under contracts that use an informal or verbal first step, Cline and Associates recommends against including such steps in the contact. Step 1 should be in writing with a required written and timely response by the employer. If you do have to deal with an informal grievance step, we recommend that you document the verbal communications over the status of the grievance in writing. A recurring issue we have seen is that management claims that it has fully responded to the informal grievance, while the grievant or union believes it is still awaiting an answer.

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By Jim Cline and Troy Thornton

Arbitrator Kenneth J. Latsch found that the Las Vegas Metropolitan Police Department had just cause to terminate Officer Raymond Cuevas for accessing the department database in furtherance of a romantic relationship. The termination occurred after the Department sustained “conduct unbecoming an officer” charges against Cuevas when he accessed the Department’s database to locate the address of a former romantic interests’ new boyfriend who  he then confronted at the discovered address.

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By Jim Cline and Troy Thornton

In Village of Skokie, 2020 BNA LA 1311, Arbitrator Sinclair Kossoff found that the employer did not violate the CBA when it denied an Officer’s bereavement pay request. The Union argued that vacation should be converted to bereavement leave when applicable. But the Arbitrator concluded that the Union position was not supported by CBA language.

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By Jim Cline and Troy Thornton

            Beginning with the contract covering 2012 through 2015, the parties’ CBA established two work schedules: a 40-hour workweek, and a shift schedule that consisted of 24 hours on-duty followed by 48 hours off-duty (as well as an off-duty Kelly day every ninth shift). During the negotiation of that CBA, TVFR accepted the Union’s proposal to limit schedule changes without first gaining the approval of the Union. In 2019, the parties agreed to a scheduling MOU due to now requirements posed by a change to Oregon law. Following the implementation of the MOU, Management established a new 42-hour work schedule for certain employees.

            The Union argued that the implementation of the new 42-hour work schedule, without first gaining the approval of the Union, violated the CBA between the parties. They relied upon the language negotiated for the 2012-2015 contract, which states that changes to the regular schedules would require “agreement between Labor and Management.” Additionally, the CBA contains language stating that employees working 40-hour schedules are owed overtime after working more than 40 hours in a seven-day stretch.

            Management attempted to rely on the plain language of both the CBA and MOU, claiming that they were not prohibited from implementing a 42-hour schedule, and met all of the CBA requirements for doing so. The employer also argued that the Union simply did not meet its burden of proving that their actions violated the CBA, which is typically required of the side claiming that there was a violation.

Arbitrator Latsch examined both the CBA and MOU to determine the “plain meaning” of the language contained in the documents. He found that the CBA language negotiated during the 2012-2015 contract cycle, specifically the language stating that there must be an “agreement between Labor and Management,” established stronger protections for the Union than the standard rule of law requiring bargaining to impasse over such issues.

In most cases, contracts deal with the parties’ mutual obligation to negotiate concerning the mandatory subjects of collective bargaining, wages, hours, and conditions of employment. Article 6.2.2 provides much stronger language, however. Article 6.2.2 specifies that pay and benefit accrual may be converted in an alternative workweek only after “agreement between Labor and Management”. In other words, the parties have recognized that there must be an agreement before changes could be made. This is more than the traditional requirement of bargaining to the point of impasse on a particular issue, and it narrows the Employer’s scope of action on any particular issue concerning alternative shift schedules.

            Because that language is clear, Arbitrator Latsch found that Management did in fact violate the CBA. In his ruling, he determined that Management had to discontinue its use of a 42-hour schedule and reinstate the schedule in place prior to the change. Additionally, Arbitrator Latsch ruled that employees must be made whole for any hours worked under the 42-hour schedule, which included overtime for any hours worked over 40 in a given week.

            It is noteworthy that the union also had a pending ULP complaint. Normally a unliteral change would be the subject of a ULP and absent clear “waiver” language, they would be successful on such a complaint on these facts. Presenting the issue here to an arbitrator did provide the union one additional remedy that may or may not have been extended from the ULP process — it was able to get overtime for hours worked under the unilaterally implemented schedule that exceeded the default under the CBA. This reflects the principle and practice of arbitrators to always find some type of meaningful remedy for any breach of contract.

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