Jackson County Sheriff's Office,
The Fraternal Order Of Police,
Ohio Labor Council, Inc.
116 LA (BNA) 1753
FMCS Case No. 01/16348
March 8, 2002
Fred E. Kindig, Arbitrator*
Portions of Agreement Cited
ARTICLE 4 MANAGEMENT RIGHTS
Section 4.1 Management Rights
Except as specifically limited by this Agreement, the Employer reserves and retains each of its statutory and common law rights express or inherent. Such rights shall include, but are not limited to, those rights enumerated in Ohio Revised Code Section 4117.08(B) and (C). Examples of such rights reserved to and retained by the Employer include, but are not limited to, the following
A. The sole right to hire, discipline, and discharge for just cause, layoff, and to promote; to promulgate and enforce reasonable employment rules and regulations; to reorganize, or enlarge any department or division; to transfer employees (including the assignment and allocation of work) within departments or to other departments; to introduce new and/or improved equipment, methods, and/or facilities; to determine work methods; to establish or modify jobs; and to determine staffing patterns, including, but not limited to, assignment of employees, numbers employed, duties to be performed, qualifications required, and areas worked
B. To determine all matters of managerial policy which include, but are not limited to, areas of discretion or policy such as the functions, services, and programs of the Employer; available funds and budget; and the standards, methods, means, and procedures by which employees shall be required to perform the functions, services, and programs of the Employer;
C. To appoint, evaluate, assign, reassign, schedule, reschedule, train, retain, or reinstate employees;
D. To direct, supervise, and manage the work force; to determine the efficiency and effectiveness of the work force; to determine the composition and adequacy of the work force; and to select the personnel by which the Employer's operations shall be carried out;
E. To maintain or increase the efficiency and/or effectiveness of Employer services; to relieve employees from their duties because of a lack of funds or lack of work; to schedule overtime; and
F. To take appropriate action to carry out the functions, services, and programs in an emergency.
ARTICLE 12 LAYOFF AND RECALL
Section 12.2 Layoff Notification
When the Employer determines that a layoff or job abolishment is necessary due to lack of work or lack of funds, they will notify the affected employees at least twenty-one (21) calendar days in advance of the effective date of the layoff or job abolishment. The Employer upon request from the Labor Council, agrees to discuss with representatives of the Labor Council the impact of the layoff on Bargaining Unit employees.
Section 12.3 Layoff
The Employer shall determine in which classification layoffs will occur and layoffs of Bargaining Unit employees will be by seniority. Employees shall be laid off within each classification in order of seniority, beginning with the least senior and progressing to the most senior up to the number of employees that are to be laid off. In the event two or more employees began work on the same day, their respective appointment times shall determine seniority listing.
All temporary, intermittent, part-time, or seasonal employees shall be laid off prior to any Bargaining Unit employees and in no case shall such non-Bargaining Unit employees be used in such a manner as to affect the functional layoff by denying Bargaining Unit member work to Bargaining Unit members.
Section 12.4 Bumping
Bargaining Unit members may bump into any classification in which they are both (1) qualified and (2) in which they have previously satisfactorily performed the duties in the Jackson County Sheriff's Office.
Employees who elect to exercise their bumping rights must declare such intent in writing within five (5) calendar days of receipt of a layoff notice.
In the event that "grandfathering" is no longer available or additional training is necessary due to changing OPOTA requirements, the Employer shall absorb the costs of any such additional training.
Section 12.5 Recall
When employees are laid off the Employer shall create a recall list. The Employer shall recall employees from layoff as needed. The Employer shall recall such employees according to seniority, beginning with the most senior employee and progressing to the least senior employee up to the number of employees to be recalled. An employee shall be eligible for recall for a period of three (3) years after the effective date of the layoff.
When the Employer recalls persons from the list, they shall be recalled to their previous classification, but not necessarily to the shift on which they were working when laid off.
Section 12.8 Probationary Period
Recalled employees shall not serve a probationary period upon reinstatement, except that employees serving a probationary period at layoff shall be required to finish such probationary period.
ARTICLE 34 BARGAINING UNIT WORK FOR BARGAINING UNIT MEMBERS
All Bargaining Unit work shall be worked by Bargaining Unit Members. If the need for overtime work exists the members shall have first option within their respective classifications to work overtime. The Employer will not contract or privatize Bargaining Unit Work when such action would displace or cause a lay off of Bargaining Unit Members.
The Employer and the FOP-OLC recognize that extraordinary circumstances may arise, such as court ordered additional Deputies, Special Jury venues, Special skills, and other circumstances outside the day to day duties of the Sheriff's Office. The Employer reserves the right to use available manpower from other sources for these situations.
On August 6, 2001, Sheriff John Shasteen notified the Union that in accordance with Article 12, Layoff and Recall, Section 12.2, Layoff Notification, three Bargaining Unit Members would be laid off, with said letter serving as the required twenty-one calendar day notification. A notification of Layoff, also dated August 6, 2001, was sent to each of said three employees, Deputy B. Scott Conley, Dispatcher Steve Wilbur, and Dispatcher Sue Yates, indicating that the layoff was effective immediately and that in honoring the contract the final workday would be August 27, 2001. Said layoff was necessary due to an alleged shortfall of funds.
On August 13, 2001, Deputy Conley filed a grievance on behalf of himself and Dispatchers Wilbur and Yates, claiming the layoff notice was improperly done and given without necessity. On August 30, 2001, Dispatcher Wilbur filed a grievance claiming a denial of his bumping rights into the jail. On September 5, 2001, Deputy Conley filed a second grievance claiming that auxiliaries and specials were working while bargaining unit members were on layoff, and on the same date filed a third grievance claiming a denial of his bumping rights into the jail. Said grievances led to the instant arbitration, with Dispatcher Yates quitting before the layoff and therefore no longer one of the grievants.
Position of the Union
Article 12, Section 12.2 of the Agreement allows for layoffs only when the Employer determines that "a layoff or job abolishment is necessary due to lack of work or lack of funds." Similar language is found in O.R.C. Section 124.321, and in order to fulfill the contractual and legal burden, the Employer must do more than state that its budget was cut. It must justify the budget cut, and the layoffs, and must prove that layoffs are necessary. The term "necessary" is one with real meaning that is supported by state statute, and the parties did not include any language to exclude the statutory rights of the grievants. If the parties had intended to grant the Employer complete discretion to layoff employees without any restrictions, they would not have included the term "necessary". Although Article 4 states that the Employer has "the sole right to hire, discipline, and discharge for just cause, layoff, and promote", said right is specifically limited by the Section 12.2 requirement of proving necessity for layoffs.
The Employer failed to meet its burden of proof that the layoffs in question were necessary, and the Employer cannot escape its responsibility by attempting to shift the blame to the Commissioners, arguing that they are not parties to the Agreement. Under O.R.C. 4117.10(B), the Employer, in this case the Sheriff, is required to submit a request to the legislative body for funds necessary to implement the Agreement, at which point O.R.C. 10(C) binds the Commissioners to the Agreement, without which the collective bargaining process could not function properly. O.R.C. Section 4117.14(I) contains a requirement that the Employer take whatever means are necessary to implement the Agreement, including the funding of the Agreement. The fact that the Commissioners do not sign anything does not relieve them of their legal duty and they are clearly a party to the collective bargaining Agreement.
The Employer stated that the Commissioners did not provide any explanation as to why the Sheriff's budget was cut by about $100,000, and the Employer did not address the fact that there has been a budgetary surplus carried over for the past three years totaling $237,464.03, but did state that the Sheriff's Office contributes $80,000 to $100,000 annually into the General Fund from the jail alone. Capt. Barger was told that other budgets were being cut, but not by how much or at what time. The Commissioners provided no explanation for why the Sheriff's budget was being targeted. The Commissioners notified Capt. Barger in March that they were not going to appropriate sufficient funds to pay for the Sheriff's budget through the end of the year. To force the layoff, the Commissioners were allegedly in such a financial crisis that they planned to cut the Sheriff's employees long term, due to some undisclosed financial crisis that was already known by the beginning of fiscal year 2001, despite the budget surplus, and that could not be resolved by FY 2002. The Sheriff's Office is obligated by law to provide for public safety, and as Arbitrator Imundo stated in a similar case, "the more deputies and support personnel (the Sheriff) lays off because of budget cuts is imposed on him, the greater the likelihood will be that he will be in violation of the law."
The Arbitrator herein should note the significance of the absence of the county commissioners at the arbitration hearing. It makes sense that if they had a valid explanation for the budget cut, they would have appeared at the hearing to present it, leading to the presumption that there was no valid explanation for said budget cut. The only evidence before the Arbitrator is that the total amount available in the General Fund increased from $3,888,303.45 for FY 2000 to $4,664,572.40 for FY 2001. Evidence was also presented that the County is currently in the process of purchasing and renovating two buildings, in part for storage use, at considerable expense to the County. Moreover, the County is growing and therefore should provide a larger tax base in the future. Based on the overwhelming evidence, there was no reason at all for the layoffs. In the instant case, similar to the Swepston court case, the Employer provided no substantial evidence that the layoffs were the result of serious financial constraints, and according to said court, "job abolishments and layoffs shall be disaffirmed if the action is taken in bad faith." Specific evidence of bad faith was presented in the instant case in that Capt. Barger stated that the Commissioners had a personal vendetta against the Sheriff for exposing some of their corrupt activity to the state.
The Sheriff's Office was already understaffed and the layoffs exacerbated the situation, with numerous shifts having only one deputy assigned to the road. Backup support from surrounding areas is restricted to emergency assistance only, the total effect of the layoffs was to take two additional deputies off the road, and the activity in the County has not decreased. There is a long history of game playing between the Commissioners and the Jackson County Sheriff's Office. Various witnesses testified that the battle over funding has been going on for years, and there have been multiple threats of layoffs, despite the fact that vacancies have been permanently left unfilled. Members have given up wage increases four times to avoid layoffs, and such games must stop.
Section 12.4 of the Agreement entitles employees who receive layoff notices to bump into another classification in order to maintain employment, and herein, the grievants wanted to bump into the jail as corrections officers. Both employees met the bumping requirements; notifying their intent within five days of receipt of the layoff notices, and both were qualified and had previous experience in the position. However, the Sheriff only would allow the grievants to bump into the jail as new hires, with complete loss of seniority, at the lowest pay scale, and subject to a one year probationary period. Section 12.4 does not impose any penalty, such as loss of pay or seniority, on such employees who choose to bump in lieu of being laid off. By bumping into the jail, the grievants would be reinstated to positions with the Sheriff's Office, but would not be new hires, and Section 12.8 disallows the Employer from requiring the employees to complete a probationary period upon reinstatement, unless they were probationary employees when they were laid off. The Sheriff is not allowed to unilaterally add new language to the contract to penalize the grievants, who he did not hire.
In addition, the Agreement specifically prohibits the use of auxiliary officers and special deputies to do bargaining unit work. Although unpaid and not on the schedule to work certain hours, they are clearly working a great deal of hours. While the same use of auxiliaries and specials would not cause a problem under normal circumstances, since the office was already understaffed, it does cause a problem when there are laid off employees. The unpaid employees are clearly doing the work of the laid off employees, in violation of the Agreement. The auxiliaries work eight or nine hour shifts at times, and Ted Frazier, Ty Campbell, and some other unpaid employees, have been working regular shifts. They provide backup support and sometimes take calls and complete incident reports, with some even allowed to take home police vehicles and have their gasoline paid by the Sheriff's Office. Clearly this kind of work was performed by the laid off employees and is now being performed by unpaid employees in their place.
The Sheriff's Office is relying on auxiliaries and specials while bargaining unit members are laid off long term. There has been no shortage of work since the employees were laid off and clearly the Sheriff's Office could not have survived without the unpaid employees doing the work that was performed by the laid off employees. If permitted to continue to engage unpaid employees while laid off employees are collecting unemployment, there is nothing to stop the Sheriff from laying off the entire department and replacing paid employees with unpaid employees. Based on all of the above, the subject grievances should be sustained and the grievants should be reinstated with full back pay and benefits. In the alternative, the grievants should be allowed to bump into the jail without loss of wage rate or seniority, and the Employer should be ordered to cease and desist from using unpaid employees to do bargaining unit work, and to compensate the grievants for a percentage of the time worked by the auxiliary officers and special deputies as a further disincentive to the Employer.
Position of the Employer
The Employer contends that the Sheriff only needs to show a reasonable belief that there is a lack of funds sufficient to create a necessity to lay off employees. Capt. Danny Barger, in charge of the budget, testified as to the necessity to provide for the layoffs, and the necessity to budget for a fifty percent payment of the salary for unemployment benefits for a six month period because governmental entities are self insured. Based upon his reasonable assumption that the budget was not going to increase for the following year, by estimates from Auditors and County Commission, Barger realized that to plan ahead, he had to proceed with the layoffs at the time they occurred, to have any real savings for the year 2002.
Capt. Barger explained the necessity of layoff due to the decrease in budget and the increase in other uncontrollable expenses of the Sheriff, and that the cuts not only affected the Sheriff's Office, but all general fund departments county wide. There was no showing that the information of Capt. Barger was not accurate on this and the necessity to reduce expenditures. The Sheriff cannot wait until the end of the year in 2002 to see if there is enough money because then a partial layoff does not save enough because of being self-insured for unemployment. Based on this, the Employer showed the necessity to require layoffs due to the lack of funds available to continue to maintain the Sheriff's Office at the existing staffing level.
The contract clearly shows that, in order to bump into a classification, an employee must be both qualified and must have previously satisfactorily performed the duties in that classification. Capt. Barger testified that neither of the laid off employees had previously satisfactorily performed the duties in the corrections department after the building of the new jail. He also testified that neither were qualified as correctional officers, due to lack of experience and training, even though one employee had worked some in the old jail. Even though the testimony regarding the law enforcement duties and transportation of prisoners was presented to show that they may be qualified, even if such work did qualify them, they have not successfully performed duties as correction officers and thus are not entitled to bump into that classification pursuant to the contract terms.
The Employer also contends that there was no specific testimony as to any actual extra work being given to auxiliaries or special deputies. The Employer contends that auxiliaries and special deputies were doing the same volunteer type work that they have been doing before the layoffs and that no additional such work was being performed in lieu of the laid off employees. There was no showing of any specific contract violation regarding the use of said people and there was no showing of extra use of them beyond the normal use and practice of the department as it had been prior to the layoffs. Based on all of these conditions, all of the instant grievances should be denied.
Analysis and Opinion
The Arbitrator would first consider the grievance involving the use of auxiliary officers and special deputies, referred to as auxiliaries and specials, in the grievance filed by Mr. Conley on 9-5-01, and the grievances involving the denial of bumping rights, filed by Mr. Wilbur on 8-31-01, and filed by Mr. Conley on 9-6-01. As to the use of auxiliaries and specials, Article 34, Section 34.1 of the Agreement is quite clear in stating that "All Bargaining Unit work shall be worked by Bargaining Unit Members. . . . The Employer will not contract or privatize Bargaining Unit Work when such action would displace or cause a lay off of Bargaining Unit Members."
There is nothing wrong with using such unpaid auxiliaries and specials to assist in the work of the Employer as long as there are no regular deputies on lay off. Article 34, Section 34.1 very clearly requires that "All Bargaining Unit work" shall be performed by bargaining unit members, which means that auxiliaries and specials are prevented from performing any duties performed by regular deputies when regular deputies are on lay off. Section 34.1 is also very clear on that subject "when such action would displace or cause a lay off of Bargaining Unit Members". The evidence is persuasive that after the layoffs, auxiliaries and specials were performing substantial amounts of bargaining unit work, to the extent of eight and nine hour shifts at times, and even working some regular shifts. As a result, said grievance must be sustained.
As to the issue involving the denial of bumping rights, Article 12, Section 12.4, Bumping is also quite clear and unambiguous. Said Section states that, "Bargaining Unit members may bump into any classification in which they are both (1) qualified and (2) in which they have previously satisfactorily performed the duties in the Jackson County Sheriff's Office. . . . In the event that ... additional training is necessary due to changing OPOTA requirements, the Employer shall absorb the costs of any such additional training." Both Grievants notified the Employer of their intent to bump into the jail as Corrections Officers within the five calendar days of receipt of the lay off notices as required by the Agreement. The evidence is persuasive that the Grievants in this case were qualified in law enforcement procedures sufficient to work as Correction Officers in the jail. Both performed some overlapping correction duties in the old jail and the Arbitrator fails to see any substantive effect on the duties of a corrections officer whether in the old jail or the new jail.
The use of probationary period applies only to newly hired or newly promoted employees, according to Article 29 of the Agreement and Article 12, Section 12.4 does not impose any penalty, such as loss of pay or seniority, on employees who choose to bump into another classification in lieu of being laid off. As noted by the Union, by bumping into the jail, the Grievants would be considered as being reinstated to positions with the Sheriff's Office, would not be new hires, and would not be required to complete a probationary period as per Section 12.8 of the Agreement. Article 12, Section 12.4 of the Agreement was definitely violated when the Employer refused to allow the Grievants to bump into the jail without losing pay and seniority, such that said grievances must also be sustained.
As to the issue of the layoffs themselves, the Arbitrator agrees that Article 12, Section 12.2 of the Agreement allows for lay off's only when the Employer determines that "a lay off or job abolishment is necessary due to lack of work or lack of funds." The Arbitrator also agrees that the term "necessary" specifically places the burden on the Employer to provide a valid justification for any lay off, and must show more than just a reasonable belief that there may be lack of funds by the end of the year sufficient to create a necessity to layoff employees. There certainly was no lack of work and clearly the right to layoff pursuant to Article 4, Section 4.1, of the Agreement is specifically limited by the requirement of proving the necessity for layoffs in Article 12, Section 12.2 of the Agreement.
As noted by the Union, this case is similar, in many respects, to the Perry County Sheriff vs. the FOP case, decided by Arbitrator Louis V. Imundo, Jr. The Employer cannot escape its responsibility under the contract by attempting to shift the blame to the Commissioners and then arguing that the Commissioners are not parties to the Agreement. For similar reasons as indicated by Arbitrator Imundo in his case, the County Commissioners herein are a party to the Agreement, at the very least to provide funding for the Sheriff's Office. Many of the same things must be said that cannot be said any better than stated by Arbitrator Imundo. For example, "...by law the Sheriff must preserve the public peace. Additionally the County Commissioners are legally required to provide funding for the Sheriff's Office. That funding must be sufficient for the Sheriff to preserve the public peace." Also as stated by Arbitrator Imundo, this Arbitrator "rejects any notion that there is no connection between layoffs in the Sheriff's Office and the Sheriff's ability to preserve public peace." There was absolutely no plausible explanation as to why the Sheriff's budget was targeted in this case.
The Sheriff's Office is the only one that operates twenty four hours per day and seven days per week. As Arbitrator Imundo stated, "the more deputies and support personnel that he (the Sheriff) lays off because of budget cuts imposed on him, the greater the likelihood will be that he will be in violation of the law." This arbitrator reemphasizes said statement, especially in the light of the present times, as also noted by Arbitrator Imundo. As indicated by the Union, if the County Commissioners had a valid explanation for the Sheriff's budget cut, at least one of them would have appeared at the arbitration hearing to present such. Said fact leaves the Arbitrator with the opinion that there was no valid explanation for said budget cut, and notes the fact that the money that would be saved by the layoffs was very nominal for FY 2001.
As a result, the overall record is persuasive that the budget cut was arbitrary and unreasonable, and therefore the layoffs were also arbitrary and unreasonable at the time. Captain Barger even testified that he thought the Commissioners were personally attacking the Sheriff and that they were playing hard ball with them, which if true is inexcusable, considering the importance of the Sheriff's Office in terms of the county, and the crippling effect of the layoffs on the operation of the Sheriff's Office. As a result, all four of the instant grievances are hereby sustained in their entirety. Therefore, the Grievants shall be reinstated immediately and returned to their previous positions with full back pay and all benefits that would have been available to them if not wrongly laid off. Any interim earnings and unemployment compensation are to be deducted from the monies owed to the Grievants.
The Arbitrator should also point out that Article 12, Section 12.3, Layoff, reinforces the decision concerning the use of auxiliaries and specials. Said section clearly states that, "All temporary, intermittent, part-time, or seasonal employees shall be laid off prior to any Bargaining Unit employees and in no case shall such non-Bargaining Unit employees be used in such a manner as to affect the functional lay off by denying Bargaining Unit member work to Bargaining Unit members." Auxiliaries and specials must be considered temporary and/or intermittent and/or part-time, and said provision also reinforces the decision that the layoffs in question were arbitrary and unreasonable at the time.
In consideration of all of the facts in the case, the testimony and evidence presented, and the post hearing briefs filed, in accordance with the above opinion, all four of the instant grievances are hereby sustained in their entirety.
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
1. The Employer violated the Agreement when it laid off the Grievants, on or about August 6, 2001, inasmuch as there was no showing that such was necessary due to lack of funds as required by Article 12, Section 12.2 of the Agreement.
2. The Employer violated Article 12, Section 12.4 of the Agreement when it did not allow the Grievants to bump into the jail at the time of the layoffs, thus sustaining the grievances in Joint Exhibits B-2 and B-4.
3. The Employer violated Article 34, Section 34.1 of the Agreement, when it used auxiliaries and specials to perform bargaining unit work during the time that the Grievants were on lay off. The Employer shall cease and desist from using unpaid employees to perform any bargaining unit work.
4. The Grievants shall be reinstated and returned to their previous positions with full back pay and all benefits that would have been available to them if not wrongly laid off. The back pay shall be on a no-gain, no loss basis, such that, for example, any interim earnings and unemployment compensation shall be deducted from the monies owed to the Grievants.
5. The Arbitrator shall retain jurisdiction of the matter in case there are any misunderstandings or disagreements over the intent of the Award.