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Clark County Sheriff Dept.
Fraternal Order of Police Labor Council
116 LA (BNA) 1266
FMCS Case No. 01/10019
December 11, 2001
Fred E. Kindig, Arbitrator*
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
This Agreement is made and entered into a Springfield, Clark County, Ohio, this ___ day of December, 1999, by and between the Board of County Commissioners of Clark County (the Legislative Body), the Office of the Sheriff of Clark County (the Employer), and the Fraternal Order of Police/Ohio Labor Council, Inc. (F.O.P./O.L.C. or the Union).
This Agreement is made for the purpose of promoting cooperation and continuous harmonious relations between the Board of County Commissioners, the Office of the Sheriff, the employees of the Sheriff's Office and their representative, the F.O.P./O.L.C., and to comply with the requirements of Chapter 4117 of the Ohio Revised Code.
Article 15 Vacancy and Show of Interest
Section 15.1 Filling Permanent Vacancies. The Employer shall post any and all permanent vacancies within the bargaining unit for five (5) days. Bulletin boards will be provided for the posting of these vacancies. The notice of vacancy will provide a description of the position, the rate of compensation, the shift or the hours associated with the position, the minimum qualification of the position and the person to whom interested employees should respond.
Interested employees shall make written notice to the person listed in the posting of the vacancy and will provide whatever information that may be required. The Employer will screen all applications and will consider all employees found to be qualified and eligible.
The Employer shall select the applicant who is most qualified and able to perform the duties of the position being filled. When the qualifications of two or more employees are found to be equal, seniority shall prevail in the final determination of who will be selected to fill the vacancy. Upon request made to the Employer within seven (7) days after a position is filled, any employee who applied but was not selected for the position, will be notified in writing of the reason(s) he/she was not selected.
Section 17.1 Procedure. The Employer and the Union recognize that in the interest of harmonious relations, a procedure is needed whereby employees can be assured of prompt, impartial, and fair processing of their grievances. The grievance procedure shall be the exclusive method of resolving grievances as hereinafter defined. However, it: is not intended that this procedure be used to effect changes in this Agreement.
Section 17.3 Definitions/Limits. The term “grievance” shall mean an allegation by an employee(s) that there has been a breach, violation, misinterpretation or improper application of this Agreement. Employees may grieve discipline that results in loss of pay or position but may not grieve reprimands beyond Step 4.
The Grievant, F__, was hired by the Employer as of November 17, 1980, and has been a Deputy in the Jail Division of the Sheriff's Department for all of the twenty plus years of service. In the spring of 2001 there was a vacancy in the Court Division and the Grievant applied for said position. When he was not awarded said position, pursuant to Article 15, Section 15.1 of the Agreement, he requested an explanation as to why he had not been selected for said position. As a result, he received the letter from Chief Deputy C__ dated March 6, 2001. Because the Grievant considered the letter to be degrading, derogatory, offensive and hurtful, the subject grievance was filed, which led to the instant arbitration.
At the hearing, the Employer contended that the grievance is not arbitrable because there has been no violation of the Agreement. The Preamble simply acknowledges that there is a labor agreement and provides that the purpose is to promote cooperation and continuous harmonious relations between the parties. In addition, Article 17, Section 17.3 indicates that there must be an allegation of breach, violation, misinterpretation or improper application of the Agreement, and the Grievant's claim does not constitute such. The letter was in response to the Grievant's request for reasons as to why he did not get the job, and the Employer simply responded to said request for reasons, which in no way violated the Agreement. The Preamble was not intended to allow employees to file grievances simply because they disagree with remarks made about them by supervision. Work performance comments are necessary and it would be a disservice if employees were not alerted to needs to improve themselves.
The Union contended that if the letter were so egregious that it upset the ability to promote harmonious relations between the parties, then said grievance must be considered arbitrable and the facts must be seen to determine said issue of arbitrability. Article 17, Section 17.1 also mentions an interest in harmonious relations between the parties and therefore the need for the grievance procedure and the fair processing of grievances. The letter by the Chief Deputy was so degrading, derogatory, offensive and hurtful that it did not lend itself to harmonious relations and, in fact, created disharmony and cannot be allowed. The Union notes that Article 17, Section 17.3 provides that employees may not grieve reprimands beyond Step 4 of the grievance procedure. However, in this case, the subject grievance should be sustained, the letter in question should be rescinded, and the Employer should be ordered not to issue such letters in the future.
The basic function of the Preamble to a collective bargaining agreement is, as stated in this case, to declare that the Agreement which follows has been made and entered into by the parties, and that it has been made to promote cooperation and harmonious relations between the parties. Article 17, Section 17.1 of said Agreement then provides that, in the interest of harmonious relations, there is a need for a procedure known as the grievance procedure, which “shall be the exclusive method of resolving grievances as hereinafter defined.”Article 17, Section 17.3 then defines a “grievance” to mean “an allegation by an employee(s) that there has been a breach, violation, misinterpretation or improper application of this Agreement.”
As in the Teledyne Monarch Rubber Company case cited by the Employer, on the basis of the unambiguous language used by the parties to the instant Agreement, it is clear that they intended to limit grievances to complaints alleging or claiming a failure by the Employer to adhere to the express terms and conditions of employment as set forth in the Agreement. The language defining a grievance in Article 17, Section 17.3 excludes general complaints that do not involve terms and conditions of employment as set forth in the Agreement. The language of the Preamble can not be extended to apply to allegations by an employee that his supervisor's personal comments about him constitute a violation of the Preamble. As argued by the Employer, if so, such would open the door to every employee filing a grievance if and when a supervisor makes a comment concerning said employee and the employee dislikes the comment.
The Grievant exercised his right, pursuant to Article 15, Section 15.1, to request reasons for his not being selected for the job vacancy in question, and Chief Deputy C__ apparently stated his personal reasons. The Grievant did not like said comments and thought the letter to be degrading, derogatory, and hurtful. Such claims, as in the subject grievance filed, simply cannot be considered a “breach, violation, misinterpretation or improper application of this Agreement.” Therefore, the claims made cannot be considered as arbitrable.
It is understandable that the Grievant should be shocked, hurt and intimidated by the letter he received in response to his request for reasons as to why he had not been selected for the vacancy. Said letter certainly demonstrates a complete lack of good supervisory counseling technique and hopefully does not represent Chief Deputy C__'s overall supervisory abilities, if the parties really desire to have harmonious relations. If the statements in said letter are untrue, and in retaliation for the past Union activity, as claimed by the Grievant, he may have a valid complaint in another forum, but his complaints simply are not arbitrable as a grievance under this Agreement.
In consideration of all of the facts in the case, the testimony and evidence presented, in accordance with the above opinion, the subject grievance is denied as not arbitrable. This ruling is confined to the conclusion that the Grievant's complaints concerning the C__ letter are not within the types of complaints or grievances that the parties intended would be dealt with through the grievance procedure of the Agreement.
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