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City of Margate
FMCS Case No. 01/09602
40 (1952) Govt. Employee Relations Rep. (BNA) 308
Robert B. Hoffman, Arbitrator
The parties agree that the arbitration initially concerns the arbitrability of the grievance. The City of Margate (“City” or “management”) maintains that the grievance filed by the Fraternal Order of Police (“FOP” or “Union”) contains a request for arbitration that is untimely by over one year. FOP contends that an agreement extended the grievance until the completion of the grievant's criminal action and that it timely filed for arbitration at that time. The City responds that no agreement exists; the document purporting to be an agreement was not produced by the Union until after the criminal trial and is not an agreement. At issue is whether the City has properly shown that the arbitration request is untimely.
On August 26, 1999 the grievant, a police officer for the City, was relieved of duty with pay following a charge that he used excessive force on August 20, 1999. On November 21, 1999 the State Attorney's office charged the grievant with one count of misdemeanor battery and on December 4, 1999, the City suspended the grievant without pay. The FOP in-house representative, Karen Crici, filed a grievance relating to this suspension on December 9, 1999. The Chief of Police denied the grievance on December 21 and the City Manager denied it on December 18. No demand for arbitration was made.
After the City had completed its investigation, the grievant was terminated on January 18, 2000 for violating City rules and regulations involving the incident of August 20, 1999. Representative Crici then filed a grievance over the termination that is the subject of this arbitration. The City denied it on January 27. On this same date Union representative Puleo and Chief of Police Blough had a telephone conversation about the termination grievance. Each of them testified to a different version. The Chief recalled the conversation as follows:
He said, I can't believe you're going to terminate this guy. I said we are. He said, well I'll deal with this after the trial is over. And I told him, do what you have to do.
Representative Puleo related that the conversation was “rather lengthy.” He testified:
I told him that A__ [the grievant] was ... pending criminal investigation, and I had spoken to his criminal attorney, and it would be against his best interest to have him come in and proceed with the grievance procedure because he would have to give testimony regarding his criminal case. The other reason was that had A__been convicted of the charges that he was alleged to have committed, most likely the matter would not go to arbitration. I explained to him that the FOP and the City would both benefit by putting this case aside until his criminal case was over, that had we gone to arbitration and he was convicted, it would be a waste of money on both camps.
The following day, January 28, 2000, the City Manager denied the grievance. The City maintains that it failed to receive a request for arbitration within the five days required by the collective bargaining agreement (“CBA”) after this step. Its position is that no communication about this grievance was received until alter the criminal trial, almost one year later. The Union contends that as a result of the January 27 conversation, Representative Puleo sent a letter to the Chief about holding the grievance in abeyance (see infra).
On January 11, 2001 a jury in Broward County found the grievant not guilty. The grievant's private investigator obtained a certified disposition of the case on February 6, 2001, which he provided to the City along with a letter requesting certain records. On February 10, 2001 Union representative Ayers wrote the Chief and requested a meeting. About this same time Chief Blough told Representative Crici that the Union had abandoned the grievance by not timely filing for arbitration. Crici acknowledged this conversation and related that she then passed this information to Union Representative Puleo. A meeting was arranged for February 21, but neither Ayers nor any Union representative appeared.
Representatives Puleo and Ayers and the grievant met with Chief Blough on March 22, 2001. The Chief testified that Puleo asked for the grievant's job back in light of the not guilty finding. The Chief told him that the Union had “dropped the ball,” according to the CBA the grievance was abandoned. Puleo claimed that had spoken to the Chief before; there would be no action until the criminal trial was over. The Chief denied that this was an “accurate statement. ”Puleo raised his voice and stated that this was a lie; he “thought” he had sent a letter to the Chief. The Chief stated he did not receive a letter. Puleo told the Chief he would go home and find the letter. After the meeting the Chief approached Puleo in the parking lot; he was upset with being called a liar. Puleo offered a “deal” and asked the Chief to talk to the City Manager. On April 4, 2001, Puleo faxed to the City a copy of a letter he signed dated February 3, 2000 to the Chief.
Per our telephone conversation, the grievance on Officer A__ will be postponed until his criminal case has ended.
Thank you for your cooperation in this matter.
The Chief testified that he had never seen this letter before receiving it on April 4, 2001. Puleo testified that this was not a copy of the original letter; lightening destroyed his computer and he had to recreate it on his son's computer. On April 17, 2001 the City received a demand to arbitrate. The parties agreed to arbitrate the issue of timeliness only.
Step 4: ... At all times, the procedure will be initiated at the grievant's appropriate rank. The time limits set forth may be waived only by mutual agreement in writing between the parties.
Step 5: If the grievance has not been satisfactorily resolved in Step 4, the FOP Representative shall present a written appeal to the City Manager within ten (10) working days, after the Chief's response is due. The City Manager shall respond, in writing, within ten (10) working days to the FOP Representative.
A. If the employee grievance is not resolved at Step 5, the FOP shall, within five (5) working days, submit a request for arbitration to the City Manager.
Time Limits on grievance and arbitration procedures.
All time limits on the grievance and arbitration procedures shall be strictly adhered to unless extended by the parties in writing. Any grievance brought by the Union or an employee which does not meet the time limits specifically shall be deemed conclusively abandoned. Any time limit not met by management shall automatically advance to the next step.
Any grievance which is not initiated on a timely basis, as indicated herein, shall be deemed conclusively abandoned.
1. The City
The City maintains that the Union never demanded arbitration within five working days; never had an agreement by the parties in writing to waive the strict adherence to the above time limitations of the collective bargaining agreement to demand arbitration; did not even adhere to the waiver agreement that the claim was made. Time limitations by the contract between the parties are to be strictly adhered to. This language is contained in Article 17 in at least three places—page 17-2, first full paragraph, page 17-4, next to last paragraph and the last paragraph. The CBA provides specifically that a grievance or demand for arbitration by the FOP that does not meet time limitations as outlined in Article 17 is to be deemed conclusively abandoned. There was no evidence that the parties had previously ignored the preceding language of the contract. Counsel for the FOP argues that the grievant would not get his chance to arbitrate on the merits and thus this would be an unfair and unjust result. However, an arbitrator does not sit as a chancellor in equity. Where there are explicit and forceful time limitations and no evidence of dealings by the parties to ignore same, the contract between the parties cannot be ignored. See Painesville Township (Ohio) Local Schools, 108 LA 333 (1997).
2. The Union
The City has to show by clear and convincing evidence when doubts about time limits are at issue. Arbitrators and the courts favor a heating on the merits. It is appropriate to thus afford the grievant the benefit of the doubt when there is uncertainty. The grievance should be resolved on its merits. There are also exceptions to strict compliance with contractual time limits. By asserting this position the grievant does not abandon its primary argument that the parties agreed to hold the grievance in abeyance pending the outcome of criminal charges. Although the CBA requires an agreement in writing, it is clear that the parties' actions may produce a waiver without writing. See Elkouri and Elkouri, How Arbitration Works 5 Ed. at 277-78. The conduct here is when Chief Blough failed to inform FOP of his contention that FOP had abandoned the grievance before March 22, 2001, especially when representative Ayers requested a meeting to discuss the termination after the criminal charges were completed. The Elkouris also refer to a reasonable excuse being a “good faith mistake” or a “difference of opinion.” Even using the Chief's version of his conversation with Puleo, there is a sufficient basis to find a difference of opinion and/or a good faith mistake by the parties.
This grievance is analogous to Ohmer Corp., 5 LA (BNA) 279 (1946), where the grievant was unable to pursue his grievance because he was in the armed forces. Here the grievant had criminal charges pending. He was confronted with either strictly adhering to the CBA time limits or waiving his Fifth Amendment right against self-incrimination. This was also a situation not of “his own choosing,”as the grievant in Ohmer. The grievant here was in a “Catch 22” situation. If he testified in the arbitration before his criminal trial he would have to waive his right not to testify at the criminal trial; he would have provided the State Attorney with discovery and it was “not from his own making.” If he exercised his constitutional right not to testify at arbitration, he would not have been able to adequately defend himself. Thus, when considering the balancing of equities and prejudice to the parties, any delay in presenting the merits was not so material as to prejudice the City's case. It would be more unfair to deny this grievance on a procedural defect than it would be to hinder the City by allowing the dispute to be addressed on the merits.
Moreover, the grievance was timely pursed after the Clerk of the Court certified the grievant's judgment of acquittal, as per the agreement of the parties. Even though the “not guilty” verdict was returned a month earlier, the Union properly waited for the certification. The FOP waited for a response from the meeting with the Chief and received none. It then requested a list of arbitrators from the FMCS. This chain of events shows that the Union did timely pursue the grievance after the judgment of acquittal was certified. It was the City that delayed the meeting until March 2001 and then never responded.
E. Discussion and Opinion
There is no dispute that the Union did not file a written request for arbitration within five days after the City Manager's denial on January 28, 2000 at step 5, as required by Section 17-2 of the CBA. The arbitration request was not made until April 17, 2001, some 15 months later. On its face the City has shown that there has been a failure by the Union to abide by this critical time limit. The burden then shifts to the Union to establish the reason for this 15-month delay and whether it is sufficient to satisfy the CBA.
The Union first contends that there was an agreement in writing between the parties to waive the time limit to arbitration. The CBA is explicit that these time limits must be “strictly” followed. It is also unmistakably clear that the parties must first agree to any change in the time limits and then have this understanding in writing. Section 17-2 allows for the parties to waive or extend the time limits. In the step 4 provision of 17-2 there is reference to the time limits being “... waived only by mutual agreement in writing between the parties.” At the end of Section 17-4 there is reference to “all time limits on the grievance and arbitration procedures shall be strictly adhered to unless extended by the parties in writing.”Failure to do so means that the grievance “shall be deemed conclusively abandoned.”
These are strong words negotiated and agreed to jointly by these parties. They leave no room for doubt. Time limits that “shall be strictly adhered to” are tough words. They are firm and unbending. Just as uncompromising are the words the parties used in the event the limits are not followed. It is not merely that the grievance is “abandoned,” it is “conclusively abandoned.” The use of the word “conclusively”unquestionably shows that the parties intended this abandonment to be final or irrefutable. It leaves no room for any other time frame.
Of course time limits cannot always been followed. The parties recognized in their CBA that if this does occur an agreement would be required to override the contractual limits. (Sections 17-2 and 17-2—an agreement between them that must be in writing.) Placing an agreement in writing is an obvious effort to avoid disputes over whether an agreement was made and if so, what it contained. It is precisely the same concern that led to this procedural dispute.
The CBA refers to an agreement that is “extended by the parties.” This means both parties must reach a mutual understanding. It does not mean that one party may on its own extend the limits merely by saying so and writing a letter. The agreement does not allow for a unilateral statement of extension. The arbitrator is most familiar with this type of provision from other arbitration panels. When other parties administer this provision, both parties sign-off on an extension of time. There is no dispute because the parties have each signed the agreement to extend; they complied with the letter of the contract. Here, where the substance of the telephone conversation between the Chief and representative Puleo, as well as the letter itself, are disputed, the absence of a signature from one party places the burden on the other to establish an agreement was made.
Although the Chief and Representative Puleo have somewhat different versions of this critical conversation, this much is undisputed—Puleo was concerned that the grievant was being terminated before his criminal trial. He likely expressed some of the pitfalls an employee faces when he loses his job and is being charged with criminal conduct. But the issue is whether Puleo simply expressed this concern or whether he expressed it and then reached an agreement with the Chief to extend the time for the arbitration.1
The grievant's Filth Amendment rights and concerns over testifying in a civil matter with his criminal trial pending are obvious. The City's position also makes sense. It had already decided to remove the suspension and terminate. To delay the grievance for a long period pending the trial would be tantamount to going back to the suspension. Thus, the logic of the respective positions does not help in resolving whether an agreement did or did not result.
What does help considerably is a close examination of the testimony about the January 27 conversation and the purported February 3, 2000 letter. In comparing their testimony about the conversation it is quite evident that neither the Chief nor Puleo refer to any agreement. Puleo told the Chief that it would not be in the grievant's best interest to testify because of the pending criminal case and that both parties would benefit. This is a statement. It is not an agreement. It is nothing more than a unilateral statement by Puleo of his position. Nowhere in this testimony does Puleo state that the Chief agreed with him or that they had any type of understanding. Puleo makes no request to postpone, no request for any sort of extension until the criminal trial is over, no request that the City revert to a suspension and absolutely no reference to Puleo confirming any of this conversation in writing. His version comes across simply as someone who is expounding on why it was unfair to terminate the grievant at this juncture. Puleo never mentions an arbitration, only that it is wrong to proceed with the grievance procedure. In that event, he had an obligation under Step 4 to place an agreement in writing prior to step 5 to confirm that there was an understanding not to proceed to the next step. The City Manager refers to no such agreement made with the Chief in his denial.
Puleo testified that not only did he have an agreement with the Chief, he sent him a letter in February 2000 confirming it, within five days alter receiving the step 5 answer.2 The City denies seeing any letter about an extension, except the one it finally received in April 2001. There is no evidence from the Union that it mailed the letter, no return receipt or other documentation showing it was mailed and received. The Union maintains that Puleo simply mailed it by regular U. S. Mail and it should not be held to prove that it was mailed and received.
The CBA requirement for a writing of the agreement to extend a grievance strongly suggests that proof of the writing and its receipt are necessary to establish the waiver or extension. It follows that the party relying on the waiver needs proof that one existed. Proof of receipt of such a critical document requires more than simply producing a copy of a letter when the other party denies receipt. The contractual requirement for an agreement, as seen above, would certainly be evidenced if both parties signed-off on a letter. Such signatures would demonstrate receipt of the letter and the agreement. Only Puleo signed this letter. Without both parties'signatures, the only other documentary proof of receipt would be a return receipt. Considering the importance of this extension agreement on the life of this grievance, it would be incumbent on the party relying on the agreement to make certain that it is well documented.
The absence of documentary proof could have been overcome by testimony from others who received it. No other City employee received the letter and no Union official testified that they even received a copy in February. It is most telling that the letter shows no copies to anyone. A letter of this significance surely calls for others to be aware of the agreement. The grievant himself should have been notified, and as seen the City Manager was actually the person who was authorized to make agreements by the City Charter. Yet, he was not copied in on the letter or sent the letter as the primary contact at the City.3 The record evidence fails to sufficiently establish that this letter existed in February 2000, or even if it could be found to exist, that it was then sent by Puleo and received by the City.4
Apart from the receipt problems, there is much concern about the contents of the letter. On its face the letter fails to state that the parties agreed to an extension. As with Puleo's version of the telephone conversation, it is mostly a bald statement that the grievance “will be postponed . ...” To state that it is “per our telephone conversation” merely refers to Puleo's version that contains no agreement by the City. It falls far short of being a convincing document that complies with the CBA's need to have a written agreement of the parties.5
The Union contends that the Chief maintained silence about the City's position until the parties finally met in March 2001. The argument is that the Chief owed some sort of duty to notify the Union that the grievance was abandoned and otherwise it can be presumed that the extension had been agreed to or that the City waived the time limits. The Union could point to no authority showing that the Chief has any obligation to inform the Union that they failed to agree to an extension.
The undisputed sequence of events after the criminal trial does not establish any type of waiver or even an agreement to extend. In February 2001 Chief Blough told the Union's Labor Chairperson, Representative Crici, who had filed the grievance, that the Union failed to abide by the time limits for arbitration. Crici testified that she actually passed this information on to Puleo at that time. Given this crucial information, it would seem reasonable that an attempt would be made to quickly demonstrate to the Chief that an agreement existed by showing him the Puleo letter. It seemed as if the meeting on February 21 would be such an opportunity. But then no one from the Union showed up at the meeting. The Chief then had to phone Ayers and find out why the Union failed to meet with him. Ayers told him that he did not have the file. It would take another month for the parties to meet. Then, on March 22, the Chief reiterated the City position that the Union had not timely filed. For the first time the Union claimed a letter agreement existed. But Puleo failed to produce the letter, even though Crici admits to advising him of the City position one month earlier. Puleo would wait almost two weeks more to finally produce this letter.
It is evident that the Chief's mindset was not that the City was agreeing to meet because it was waiving the time limits. To the contrary the Chief was adamant to Crici in February and Ayers and Puleo in March that the Union had “dropped the ball” on the grievance and the City's position remained firm. Any notion that the parking lot incident whereby the Union asked the Chief to take “its deal” back to the City manager constitutes waiver of the time limit is simply misplaced. Offers to settle are not construed as waivers. Here the Chief made no settlement offer other than respecting the Union's offer and stating he would direct it to the proper City official. This is not a waiver.
The actions of the representatives after the trial are further evidence that no agreement existed to extend the time limits. Puleo waited almost two months to produce this letter from the time Crici told him about the City's position. This is not the action of someone who had a written agreement. If an agreement existed it is reasonable to conclude that Puleo and Ayers would have been at the meeting they set for February 21 armed with the letter instead of failing to even notify the City that they would not attend. If an agreement existed it is also reasonable to conclude that Puleo would have at least had the letter by the time of the March 22 meeting. To wait another two weeks to finally produce it strains credibility. To wait from February to April to finally uncover this document is asking the arbitrator to engage in a long stretch of the imagination as to what is plausible.
The Union contends that where there is doubt about the agreement, or a reasonable explanation for the failure to timely file, or a reasonable mistake has been made, or a difference of opinion the case should be heard on the merits. The arbitrator would normally prefer to hear cases on the merits and favors such an approach—but not where the CBA strongly favors the enforcement of time limits. To make an award that has no basis in the contract, places it in risk of being set aside.
The arbitrator has not found that there is doubt about the agreement. This record fails to establish doubt and instead is convincing and clear that no agreement existed to extend the grievance in abeyance. In addition, the Union argument that a mistake was made by Puleo in not obtaining an agreement and the arbitrator should overlook it and order a hearing on the merits is unconvincing. A simple reading of Article 17.2 was all that was needed. This is not a complex provision. In fact it is basic grievance and arbitration practice. It is not a mistake that is reasonable to make.6 Puleo admitted that he was unfamiliar with the CBA. On the other hand his testimony does not suggest that he was making a mistake. He appeared most adamant that he had an agreement with the Chief. This being so he had a contractual obligation to place that agreement in writing and make certain that it was sent and received. As shown, he did none of this.
It is also noteworthy that Puleo was not the only Union representative concerned with this grievance. To pin a mistake solely on him when others with more experience were also involved would be improper. Two other experienced representatives played a role in the handling of this grievance—Labor Chairperson Crici who filed both grievances, and Representative Ayers who set up meetings with the City. The obligation rested with the Union representatives to make certain that it complied with the extension provisions of the CBA.
Although the Union cites authority for its theories in the event no agreement is found, it is significant that none of these cases contain contracts with wording as explicit as this CBA. None of them provide that time limits must be “strictly''observed, that extensions are only permitted if agreed to and in writing, and that failure to meet time limits deems the grievance “conclusively abandoned.'' This CBA's strongly worded time limit provisions suggest that the parties meant what they agreed to and would not accept so-called reasonable explanations for excusing the failure to adhere to time limits.
This is not to say that some circumstances may exist that simply makes compliance with the time limits unattainable. Emergencies, Acts of God, disasters and other like crises come to mind. But there is no showing of any extreme circumstances that would justify proceeding with this grievance, where the finding is that no agreement existed. The grievant's pending criminal trial is simply not the same as a grievant being in the armed services who is physically unable to participate in the grievance procedure, as in the Ohmer case cited by the Union. This grievant had a dilemma, but it was not one that was insurmountable. The parties anticipated in their contract that extensions and waivers could be made—but only by agreement and in writing. If the City refused to make an agreement, which it did here, the Union had the option of still filing for arbitration and then requesting that the arbitrator postpone the hearing pending the outcome of the criminal trial.7
The Union maintains that there is no prejudice for the City to hear this case on the merits. But there rarely is any such prejudice. Quite simply, prejudice is not the issue. Arbitration is a creature of the CBA and not of the arbitrator's own making to decide cases on the basis of prejudice. To do what the Union proposes, especially where the contract is so explicit and no extreme circumstances justify it, would be contrary to the authority this arbitrator has been given by the parties and would in effect nullify the time limit provisions of this CBA hereinafter.
Based on the above and the entire record, the grievance was not timely advanced to arbitration. Accordingly, it is found that the grievance was abandoned by the Union and may not be heard on the merits. The grievance is therefore denied.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service.
1. Additionally, as will be discussed, even if he had an agreement there is concern as to whether it was proper to make it with the Chief at step 4, or with the City Manager at step 5, which is the step just before arbitration.
2. It is unexplainable why Puleo did not date the letter January 27 when he spoke to the Chief instead of February 3, after the City Manager had answered. It is clear from the CBA that the Chief's only contractual responsibility was to answer at step 4. Another step remained—step 5 for the City Manager to respond. Arbitration occurs after this step. Thus, any agreement to extend the period for the Union to request arbitration would be an extension from the date of the step 5 answer. The agreement should have been made with the City Manager to extend the time frame after this answer. Whether this is an innocent mistake from a novice representative depends on the rest of the evidence, as will be discussed.
3. When Puleo talked about making a “deal” with the Chief in March 2001 he acknowledged that the Chief would need approval of the City Manager.
4. Adding to the weight of these conclusions is Puleo's precarious and unsupported explanation as to why he no longer had the computer he used to type the original letter that he maintains was typed and mailed in February 2000. After the City sought a pre-trial order to produce his hard drive to verify this February date, it was represented in the motion stage and Puleo so testified that lightning destroyed it in June 2000; he had to use his son's computer in April 2001 to recreate the letter. He offered no corroboration at the hearing, such as an insurance claim, repair receipts or receipts for replacement equipment.
5. If the agreement is that the grievance would be “postponed until the criminal case ended,” the criminal case finished on January 11, 2000 when the jury found the grievant not guilty. Even if the certification from the Clerk is taken as the date it ended, one month later, it is not until April that the Union then sought arbitration. Thus, there is no compliance with this purported agreement. As will be seen, the Union knew of the City's position as early as February 2001. The notion that the meeting with the Chief in March and the wait for his response thereafter may have tolled the time limit ignores the fact that this meeting occurred some two months after the trial ended. The agreement, if it existed, did not allow for such delay in filing.
6. The grievant asserts that it makes this argument without prejudice to the contention that an agreement exists. The problem is these are diametrically opposed factual contentions that cannot be separated in the factual record of this matter. It cannot be ignored that Puleo's admission on unfamiliarity with the CBA only contributes to the already convincing evidence that no agreement existed.
7. This arbitrator recently found that a pending criminal trial was a reasonable excuse for delaying a decision on termination for the very reasons cited by the Union here. There the Union claimed a due process violation because the employer delayed the decision instead of acting promptly.
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