Ohio Patrolmen's Benevolent Assn.
FMCS Case No. 02/00981
117 LA (BNA) 244
July 1, 2002
Philip W. Parkinson, Arbitrator -- selected by parties through procedures of the Federal Mediation and Conciliation Service
The grievance considered herein was filed by the Ohio Patrolmen's Benevolent Association Patrolmen (hereafter referred to as the “Union”), on behalf of Patrolmen employed by the City of Niles, Ohio (hereafter referred to as the “City”) in accordance with the parties' collective bargaining agreement.1 The grievance was filed on July 17, 2001 and states in relevant part as follows:
On May 30 2001 Detective Dixon retired from the Niles Police Dept. At the time of his retirement he was a Patrolman, assigned as the Dayturn Detective, he was assigned to this position approx. 9 years. Officer Dixon was also the Afternoon Detective a position he held until 1979. The position of “Patrolmen” investigator was started on May 8 1972 and has continued unbroken till the present. On 1/23/01 a memo was posted for any officers interested in assignment to the Detective Bureau. Two officer[s] applied no appointment has been made at this time. The Chief has made the statement that he is not going to fill the position with a patrolman, he is going to us[e] a capt. In May of this year Officer Mark Thou was promoted to the rank of lieutenant. Pryer [sic] to the promotion officer Thou was assigned to the C.O.P.S. program. This program was put into effect by ordinance on 12/18/96 for two officers. Officer Robbins is the remaining officer
The following “Adjustment/Remedy” was requested:
This is a position that a Patrolman has held since it was created in 1972. Fill the position with a patrolman as per the criteria set in the arbitration held on 7/10/01.
With the promotion of Officer Thou there is an opening in the C.O.P.S. program. Post for interested officers assign by criteria set in the arbitration held on 7/10/01.
On September 21, 2001, a Step 2 Grievance Meeting was held to discuss the grievance. By letter dated October 15, 2001, the City issued the following response:
The department at this time is under reorganization, and at this time the department is not posting job. It may or may not be posted at a later time.
Mr. Bernie Profato testified that he was employed by the City as a Patrolman for thirty-one years until his retirement in July of 2000. He explained that the special duty assignment of Traffic Officer was created in 1974 and that he held that assignment until his retirement. Patrolman Profato stated that in addition to Traffic Officer, Patrolmen have been assigned as Detectives, with as many as two Patrolmen at one time having held full-time assignments as Detectives. He also noted that a rank officer was assigned to the position of Juvenile Officer and supervised both himself as Traffic Officer and the Detectives. Patrolman Profato recalled that prior to retiring, he attended interviews for his replacement as Traffic Officer. He noted that three Patrolmen were interviewed for the job. He also pointed out that by letter dated June 7, 2000, the Chief of Police informed all officers in the patrol grade of the vacant assignment.
On cross-examination, Patrolman Profato acknowledged that Patrolmen on special duty assignments receive the same salary as Patrolmen who are not in special duty assignments. However, he maintained that special duty assignments offer perks, such as steady day turn with weekends off. He could not recall signing a list to bid for the Traffic Officer assignment. Patrolman Profato noted that when he retired in 2000, there was only one Patrolman assigned to the Detective special assignment.
Mr. Richard Dixon testified that he was employed by the City as a Patrolman for thirty-two years before retiring on April 30, 2001. He maintained that he was in the special duty assignment of Detective from 1976 to 1978 and from 1992 until his retirement. Patrolman Dixon testified that the City created the Detective Division in 1972, at which time two Patrolmen filled the assignment.
Patrolman Dixon stated when he was a Detective in the 1970s, he worked afternoon turn, while in the 1990s he worked day turn. He recalled that the City's Juvenile Officer, Captain Albert Kijowski, was his supervisor. He also explained that he was the only Detective during the 1990s and that another Patrolman, Bob Ludt, often filled in for him when he was on leave. Patrolman Dixon asserted that from 1968 until 2001, no rank officer held the special duty assignment of Detective. However, he acknowledged that after Chief Simeone took over as Chief of Police in 1997, rank officers also filled in for him. He maintained that the main perk of the Detective assignment was the opportunity to work steady day turn, Monday through Friday. He also noted that as Detective, he did not wear a uniform.
Mr. Bob Ludt testified that he has been a Patrolman with the City since 1977. He explained that he was placed in the special duty assignment of Detective on a temporary basis when the permanently assigned Patrolmen Detectives were on vacation. Patrolman Ludt asserted that during Chief Simeone's tenure, no one has been permanently placed in the special assignment of Detective. He noted that when the available assignment was posted in June of 2000 after Patrolman Dixon's retirement, an issue arose as to the criteria to be used in the selection of his replacement. Patrolman Ludt pointed out that the assignment was offered to all Patrolmen and that he and another officer, James Robbins, applied for it. He asserted that he filed a grievance on June 1, 2001, protesting the placement of Patrolman Robbins in the Detective assignment. He noted that the grievance was appealed to arbitration and an Award was issued on August 28, 2001 by Arbitrator Thomas Hewitt. Patrolman Ludt asserted that the grievance did not allege that the City improperly placed a rank officer in the special duty assignment of Detective.
Chuck Wilson testified that he has been employed by the City since 1971 and has been a Captain in the Police Department for the past nine years. Captain Wilson asserted that since 1971, the City has never placed a rank officer in the special duty assignment of Detective. He noted that currently a Patrolman is not assigned full time as a Detective. He stated that the Police Department is currently understaffed and that on occasion, there are not enough Patrolmen to cover each shift. As a result, rank officers are assigned to fill in when necessary. Captain Wilson agreed that assignments have always been at the Chief's discretion.
Mr. Dennis Laskay testified that he has been employed as a Patrolman for seven years and is currently the Union Director. In this position, Patrolman Laskay handles grievances filed by the Union. He stated that he was involved in the grievance that resulted in the August 28, 2001 Award by Arbitrator Hewitt. He denied that that grievance was filed over the filling of the Detective special duty assignment with a rank officer, but rather in protest of the criteria used in filling the assignment. Patrolman Laskay pointed out that the grievance in this matter cited Article 42 of the Agreement concerning past practices and prevailing rights. He maintained that the grievance was filed after he learned from the Chief of Police that the special duty assignment of Detective was going to be filled with a rank officer.
According to Patrolman Laskay, the benefits associated with the Detective assignment include working day turn, wearing plain clothes, using an unmarked car, and having the opportunity to obtain additional training. He also cited the work performed by a Detective as an additional benefit. He asserted that captains are currently performing the detective work that was previously performed by Patrolman Dixon before his retirement.
Mr. Bruce Simeone testified that he has been employed in the City's Police Department since 1972 and has been the Chief of Police since 1997. Chief Simeone explained that the City covers approximately 12.5 square miles and is divided into four areas for patrol purposes. He maintained that since becoming Chief, he has implemented a restructuring process, by which more Patrolmen are assigned to those shifts with the most calls, i.e., the afternoon turn and the midnight turn. Chief Simeone stated that when he began as Chief of Police, the Department had several special duty assignments, which included one Patrolman assigned as Detective, one rank officer assigned as Juvenile Officer, one Patrolman assigned as Traffic Officer, and two Patrolmen assigned as C.O.P.S. Officers. He explained that in an effort to put more Patrolmen on the street, the special duty assignments were eliminated. He stated that as a result, the assignment of Detective was eliminated when Patrolman Dixon retired. Chief Simeone explained that detective work is now being performed by three captains. He stated that performance of detective work by rank officers was not the subject of the previous arbitration award.
On cross-examination, Chief Simeone acknowledged that Patrolman Robbins continues to perform special duty assignments as a C.O.P.S. officer and a drug officer. In addition, he agreed that Patrolman Robbins is assigned to investigations. Chief Simeone testified that the Department still has a C.O.P.S. special duty assignment as well as a Canine Officer special duty assignment.
Mr. Guy Simeone testified that he has been employed by the City's Police Department for nineteen and a half years. He stated that he has been a Captain for approximately one year, prior to which he was a Lieutenant for nine years. Captain Simeone stated that as a Lieutenant, he was a shift supervisor and was responsible for the C.O.P.S. program. He also helped out in the Detective rotation. He recalled that while he was a Lieutenant, there were two Patrolmen assigned as full-time Detectives. According to Captain Simeone, the Police Department subsequently underwent a restructuring which included the placement of a captain in charge of investigations.
Captain Simeone explained that he is currently an afternoon supervisor. He stated that when another supervisor is present, he takes an investigative role. He maintained that three captains and one patrolman are currently performing investigations. Captain Simeone agreed that prior to the restructuring, a Patrolman was in charge of all investigations. He asserted that there is currently a shortage of Patrolmen such that supervisors are sometimes called out for patrol. Captain Simeone denied that the City is divided into patrol zones, noting that this designation has been abandoned.
Initially, the Union maintains that this grievance was timely filed in accordance with Article 9.3(A)(1) of the Agreement. It points out that the grievance was filed on July 17, 2001, one week after Chief Simeone stated at the July 10, 2001 arbitration hearing before Arbitrator Hewitt, that he was only going to use supervisors to perform the detective assignment. Moreover, as the Chief of Police indicated that he would continue to use supervisors in the detective position, the Union argues that a continuing violation of the Agreement has occurred.
With regard to the merits of the grievance, the Union asserts that Article 42 of the Agreement provides Patrolmen with a contractual right to be assigned to the special duty assignments of Detective and C.O.P.S. Officer if a past practice can be established. The Union specifically disputes the City's contention that manpower concerns provide it with an overriding right to assign Patrolmen only to patrol positions. It is argued that the shortage of Supervisors as well as Patrolmen is contrary to the City's argument that Patrolmen alone cannot be spared. According to the Union, the City has a past practice of posting available special duty assignments and selecting Patrolmen for those positions. In support of this practice, it points to the fact that when Patrolman Tedesco left the Detective assignment, the City appointed Patrolman Dixon as his replacement. It maintains that Chief Simeone repeatedly recognized and followed this practice, as demonstrated by the posted memos submitted as evidence. The Union asserts that the same process has been applied to the special duty assignment of C.O.P.S. Officer. The Union maintains that the practice with regard to these special duty assignments is consistent with the parties' Sidebar Agreement by which the parties were to determine the criteria to be used for special duty assignments, including that of Detective and C.O.P.S. Officer.
For these reasons, the Union argues that the grievance was timely filed and that the City has violated its past practice of placing Patrolmen in the special duty assignments of Detective and C.O.P.S. Officer. It therefore asks that the grievance be sustained and that the City be ordered to post all Detective and C.O.P.S. Officer positions for application by Patrolmen and to appoint the most qualified Patrolmen in accordance with the established criteria.
The City argues that the grievance was untimely filed, in violation of Article 9.3(A)(1) of the Agreement. It asserts that long before the July 10, 2001 arbitration hearing before Arbitrator Hewitt, the Union knew or should have known that Chief Simeone had not filled the special duty assignments of Detective and C.O.P.S. Officer. In support of this position, it points out that the original posting for the position of Detective was made by memo dated January 23, 2001, but the position still was not filled at the time of the July 10, 2001 arbitration hearing. According to the City, the delay should have informed the Union of Chief Simeone's intentions. Moreover, it asserts that at the very latest, the issue should have been raised during the July 10, 2001 arbitration hearing. Finally, the City notes that the grievance did not identify a specific date on which the aggrieved event occurred, thereby rendering the grievance defective on its face. For all of these reasons, it maintains that the grievance was improperly filed.
With respect to the merits of the grievance, the City points out that Article 36.1 of the Agreement, addressing work assignments, only states that the City will ensure that at least eighteen Patrolmen slots will be bid upon every six months. Noting that this provision does not reference special duty assignments, the City argues that the Union is now attempting to rewrite the Agreement so as to create the additional bid slots of Detective and C.O.P.S. Officer.
Next, the City maintains that the Ohio Revised Code provides the Chief of Police with exclusive control in the stationing and transfer of all Patrolmen. According to the City, the Sidebar Agreement reached by the parties was nothing more than an attempt to set forth the criteria that will be used by the Chief of Police when making special duty assignments. It asserts that nothing in the Sidebar Agreement states or implies that the Chief of Police is mandated to reassign Patrolmen from patrol duties to special duty assignments.
Finally, the City argues that the right to assign and direct Patrolmen is a management right as specified in Article 3.2 of the Agreement. It contends that Article 42 dealing with past practices does not apply to the issue raised by the grievance. While it agrees that Patrolmen performed Detective and C.O.P.S. Officer duties in the past, the City contends that it is within the sole discretion of the Chief of the Police to determine how to use Patrolmen. The City further points out that rank officers assisted and performed Detective duties when Patrolmen were assigned to that position. As it believes that no Patrolmen positions have been eliminated and the City believes that no Patrolman has suffered a loss of a privilege or a change in working condition, the City asks that the grievance be denied.
ARTICLE 9—GRIEVANCE PROCEDURE
Section 3. Grievance Procedure. The following are the implementation steps and procedures for the handling of bargaining unit members' grievances:
A. Chief of Police — Step 1
1. A bargaining unit member having a grievance shall immediately notify the OPBA, and present it in writing to the Police Chief within ten (10) of his working days after the events or circumstances giving rise to the grievance have occurred, or when the employee reasonably should have known of their occurrence. Grievances submitted beyond the ten (10) working day limit need not be honored, although they will be processed through this procedure if time limits are waived at this step.
ARTICLE 36—SCHEDULING AND WORK ASSIGNMENTS
Section 1. Every six (6) months the Patrolmen will bid the schedule June 1st to go into effect July 1st And December 1st to go into effect January 1st. During the life of this Agreement, the City will ensure that at least eighteen (18) slots will be on every six months (6) on each shift.
ARTICLE 42—PAST PRACTICE/ PREVAILING RIGHTS
Section 1. All rights, privileges and working conditions enjoyed by the Bargaining Unit Members at the present time which are not included in this Agreement shall remain in full force, unchanged and unaffected in any manner, during the term of this Agreement unless changed by mutual agreement. The only exceptions to this provision are: (a) employees may not work a part-time job within sixteen (16) hours of the completion of a shift that is missed due to sick leave; (b) the records clerk position may be filled with a civilian; (c) “new” take home cars will be provided so long as the City can afford such a benefit.
Initially, the City argues that this grievance was untimely filed and is therefore improperly before this arbitrator. In considering this argument, it is noted that Union Director Laskay testified that at the July 10, 2001 arbitration hearing before Arbitrator Hewitt, Chief Simeone stated that Patrolmen would no longer be placed in the special duty assignments of Detective and C.O.P.S. Officer. This grievance was then filed on July 17, 2001, seven days after the Chief's comments. As Article 9.3(A)(1) of the Agreement requires a grievance to be filed within ten working days of an occurrence, it is apparent that the grievance was filed within the prescribed time limit. While the City asserts that the Union should have been aware of the Chief's decision prior to the July 10, 2001 hearing, no clear evidence of this knowledge was presented. Moreover, it is also noted that the alleged violation is continuing in nature in that Patrolmen continue to be excluded from the special duty assignments. As such, each day that Patrolmen are deprived of this opportunity constitutes a new occurrence. For these reasons, it is concluded that the grievance was timely filed in accordance with the Agreement.
In addressing the merits of the grievance, the issue to be decided is whether Patrolmen have a contractual right to selection for the special duty assignments of Detective and C.O.P.S. Officer. The Union does not argue that the Agreement specifically provides bargaining unit members with the right to bid into special duty assignments. Indeed, as pointed out by the City, while Article 36 addresses the right to bid into eighteen Patrolmen slots, it makes no reference to special duty assignments. However, Article 42 of the Agreement provides as follows:
All rights, privileges, and working conditions enjoyed by Bargaining Unit Member at the present time which are not included in the Agreement shall remain in full force, unchanged and unaffected in any manner, during the term of this Agreement unless changed by mutual agreement.
In light of this provision, the more succinct question to be determined is whether the parties have an established past practice of filling Detective and C.O.P.S. Officer special duty assignments with Patrolmen.
By including Article 42 into the Agreement, the parties have memorialized the well-accepted principle that a labor agreement constitutes more than the words appearing on paper. Rather, it includes the mutually accepted practices that have grown up around the Agreement over time. Clear and long-standing practices can establish conditions of employment that are as binding as any written provision of a collective bargaining agreement, provided that they are not in conflict with clear and unambiguous language. To be enforceable, the practice must be of sufficient generality and duration.
A great deal of testimony was presented regarding the alleged practice of placing Patrolmen in special duty assignments. Although the parties do not agree on some facts, others are well established by the record. As explained by retired Patrolman Profato, the City has utilized special duty assignments since the 1970s. Another retired Patrolman, Officer Dixon, testified that he held the special duty assignment of Detective from 1976 to 1978 and from 1992 until his retirement in 2001. Both of these witnesses maintained that without interruption from the 1970s until the year 2000, the City exclusively assigned Patrolmen to the special duty assignment of Detective. Additionally, Captain Wilson stated that since 1971, no rank officer has been utilized as a full-time Detective. Rather, until the changes grieved in this matter, rank officers have only been used to fill in for Patrolmen Detectives as necessary. With regard to the special duty assignment of C.O.P.S. Officer, Chief Simeone agreed that since the inception of the C.O.P.S. program, up to two Patrolmen have filled the assignment, with one Patrolman currently performing C.O.P.S. duties. Based upon all of this testimony, which was largely unrefuted, it is apparent that for approximately thirty years, Patrolmen have exclusively been placed in the special duty assignments of Detective and C.O.P.S. Officer.
The record also indicates that there has been a practice of posting available special duty assignments for interested Patrolmen. The documentary evidence reveals that vacancies in the special duty assignment of Detective were posted for Patrolmen by memo dated January 23, 2001. This evidence substantiates the Patrolmen's testimony regarding the practice.
Finally, it is noted that the parties have raised the issue of special duty assignments in a Sidebar Agreement to the current collective bargaining agreement. The Sidebar Agreement states that the criteria for the selection or appointment of special duty assignments is to be developed by the parties within ninety days of the execution of the Agreement, and if not so developed, the issue will be decided in the arbitration process. The fact that the parties agreed to discuss the criteria is evidence that the work belongs in the bargaining unit. The parties did not reach such an agreement, and the issue was placed before Arbitrator Thomas Hewitt. In his Award 2, Arbitrator Hewitt implicitly recognized that the parties have a past practice of awarding special duty assignments to Patrolmen, albeit by qualifications and not by seniority. He then proceeded to list the factors to be considered in choosing applicants for special duty assignments. As such, Arbitrator Hewitt's Award is consistent with the Union's allegation of an established past practice.
While the City correctly points out that Article 3.1 of the Agreement provides the Chief of Police with the authority to administer the business of the Police Department, such authority cannot be in conflict with the terms of the Agreement. Pursuant to Article 42 of the Agreement, all rights, privileges and working conditions enjoyed by bargaining unit members are to remain in effect during the term of the Agreement. The evidence reveals that the parties have an established practice of posting available Detective and C.O.P.S. positions for Patrolmen into special duty assignments and of filling those positions with Patrolmen, with rank officers only being used on a temporary basis or to fill in when needed. Contrary to the assertions of the City, the evidence also reveals that special duty assignments entail specific work duties and work hours that are considered perks and sought after as desirable working conditions by bargaining unit members. As such, it is concluded that the parties have an enforceable past practice with regard to Detectives and C.O.P.S. Officers that must be given effect when such positions are available.
The grievance is sustained. The City violated Article 42 of the Agreement when it failed to comply with the established past practice of posting special duty assignments of Detective and C.O.P.S. Officer for Patrolmen and filling those positions with qualified Patrolmen. The City is ordered to abide by this past practice with regard to any available special duty assignments of Detective and C.O.P.S. Officer and to appoint the most qualified Patrolmen in accordance with the established criteria. The City is to cease and desist the assignment of rank officers to these special duty assignments.
1. Labor Agreement by and between the Ohio Patrolmen's Benevolent Association Patrolmen and the City of Niles, Ohio, effective January 1, 2000 expires December 31, 2002 (hereafter referred to as the “Agreement”).
2. City of Niles, Ohio and The Ohio Patrolmen's Benevolent Association of Patrolmen, August 14, 1998, Arbitrator Thomas L. Hewitt.