City of Fostoria, Ohio
Ohio Patrolmen's Benevolent Association
117 LA (BNA) 1093
AAA Case No. 53-L-390-001712
August 30, 2002
Colman R. Lalka, Arbitrator
Statement of the Case
The OPBA represents three separate Bargaining Units in the City of Fostoria, Patrol Officers and Detectives, Command Officers, and Dispatchers. The Dispatchers Unit is comprised of three full-time Dispatchers. There are, additionally, three part-time Dispatchers who are not Bargaining Unit members.
Toward the end of 2001, the City of Fostoria learned of an impending deficit of $1,500,000.00 to $1,700,00.00 for 2002. The City, being prohibited by the State of Ohio from operating in a deficit, determined a 20% budget reduction was necessary in all departments. The only way to reduce the budget in the Police Department, it was concluded, was through a reduction in the number of personnel.
Layoffs were implemented February 1, 2002, and included the laying off of two Patrol Officers, all three employees in the Dispatcher Bargaining Unit, and the three part-time Dispatchers. Additionally, two employees in the IAFF Bargaining Unit, and two employees in an AFSCME Unit were laid off. Patrol Officers have been performing all dispatcher duties since the time the Dispatchers were laid off.
The Association grieves such performance of dispatcher duties as being in violation of Article 10, Section 2, of its Labor Agreement with the City. The grievance was processed, without resolution, through the steps of the Parties' contractual grievance procedure, and the matter is now before this Arbitrator for final and binding determination.
Did the City violate the Parties' Labor Agreement, under the facts of this matter, when it used Patrol Officers to perform dispatcher duties? If so, what is the remedy?
Collective Bargaining Agreement
The following provision of the Parties' Labor Agreement is applicable to these proceedings:
Article 10—Layoff and Reduction in Force
* * *
In the event of a reduction in force from the police department due to ... lack of funds, patrol officers may be assigned to dispatcher duties no more than four (4) hours per shift except in case of an emergency.
Article 10, Section 2 was first negotiated into the Parties' Labor Agreement in 1987, and was in response to a fear on the part of Bargaining Unit Members their positions would be eliminated in the event of a reduction in Police Department personnel. The impetus behind Article 10, Section 2, evidence of record convinces the Arbitrator, was the “darkening,” that is, the elimination, of one of two Meter Person positions. There was a rumor of additional layoffs, and Patrol Officers were of the stated position that if the rumor were true, the Dispatchers would be laid off first. The members of the Dispatchers Bargaining Unit, being fearful that while on layoff Dispatcher positions would be filled by Patrol Officers, negotiated Article 10, Section 2 into the Labor Agreement to ensure some measure of job security.
Article 10, Section 2 provides that in the event of a reduction in force in the Police Department as the result of a lack of funds, Patrol Officers may not be assigned to dispatcher duties for more than four hours per shift, except in case of emergency. The City argues two points. First, Article 10, Section 2 permits Patrol Officers to sit desk more than four hours in the event of an emergency, and, it is argued, the fiscal crisis in which the City found itself is just such an emergency. Pursuant to the language of Article 10, Section 2, the City concludes, the action of laying off the Dispatchers while Patrol Officers performed dispatching duties is permitted.
The word “emergency,” the City continues, is not defined in the Labor Agreement. In that event, the ordinary and popular meaning of the word must be used, and, the City points out, the dictionary 1 defines emergency as “A sudden, unexpected state of affairs calling for immediate action.” There is little doubt, the City concludes, the financial crisis was sudden and unexpected and required immediate action to avoid deficit spending.
Second, the City notes, no one Patrol Officer “sits desk,” that is, performs dispatcher duties, for more than four hours at a time. Pursuant to Police Department policy, there are three Patrol Officers assigned to street duties at all times. While three are on the street, a fourth Patrol Officer will sit desk. This is accomplished by having the four Officers rotate in the Dispatcher position during the course of one eight-hour shift.
The duty of an Arbitrator, when rendering a decision in the grievance presented, is to determine and carry out the mutual intent of the Parties as expressed in their Labor Agreement. Here, the Arbitrator is convinced, there was never an intent for the word “emergency,” as found in Article 10, Section 2, to include a fiscal crisis confronting the City. Article 10, Section 2 specifically prohibits Patrol Officers from sitting desk in the event of a reduction in force due to a lack of funds. A lack of funds was the very reason for the reduction in force in the Police Department. Any reasonable interpretation of “lack of funds” must include a fiscal crisis of the type in the within proceedings.
The City's contention that Article 10, Section 2 permits Patrol Officers to sit desk as long as no one Officer does so for over four hours, is also without merit. The language of Article 10, Section 2 is clear and unambiguous, and provides that Patrol Officers, plural, may sit desk for no more than four hours per shift in the event of a reduction in force due to a lack of funds. The bargaining history of Article 10, Section 2 establishes the intent of the language was job security, and the language was negotiated into the Collective Bargaining Agreement to prevent the Dispatcher Bargaining Unit from being laid off while the work customarily performed by Bargaining Unit Members, that is, dispatching, was performed by Patrol Officers. The City's argument that Article 10, Section 2 permits Patrol Officers to sit desk an entire shift as long as no one Patrol Officer sits more than four hours would render meaningless the intent of Article 10, Section 2, and the argument must fail.
To address the definition of “emergency,” as cited by the City, the fiscal crisis in which the City found itself was not unexpected, nor did it call for immediate action. While the fiscal crisis was certainly not intended, it was known in advance, from the Auditor, the shortfall would be forthcoming. Additionally, the “state of affairs” of the fiscal crisis did not call for “immediate action.” Methods of meeting and overcoming the fiscal crisis were planned, and took at least eight weeks to implement.2 Thus, “A sudden, unexpected state of affairs calling for immediate action” did not arise, thereby authorizing Patrol Officers to sit desk for more than four hours pursuant to Article 10, Section 2.
Finally, the City contends, even if the Arbitrator were to rule in favor of the Union, the Union's requested remedy, that Dispatchers be returned to work and made whole for all losses, is improper. If the Dispatchers are returned and used for only half a shift, the City continues, they would work part-time and make the same money, or less, than they receive from Unemployment Compensation. This, the City concludes, shows the impossibility of the Union's position.
The Arbitrator disagrees. This matter is not about money, it is about bargaining unit work and job security. The importance of bargaining unit work and job security was set forth by Arbitrator Saul Wallen over fifty years ago in the oft cited passage from New Britain Mach. Co., 8 LA 720, 722 (1947):
Job security is an inherent element of the labor contract, a part of its very being. If wages is the heart of the labor agreement, job security may be considered its soul . . . .
The transfer of work customarily performed by employees in the bargaining unit to others outside the unit must therefore be regarded as an attack on the job security of the employees whom the agreement covers and therefore on one of the contract's basic purposes.
Moreover, while layoffs were necessitated by the City's fiscal crisis, the decimation of the Dispatcher Bargaining Unit, under the pretext of saving money, is questionable. Patrol Officers, by and large, are paid more than Dispatchers. Thus, except in the case of the most junior Patrol Officers, it costs the City more to have Patrol Officers sit desk than to have the Dispatchers perform dispatcher duties. In addition, since the layoffs other workers have been called back, and employees, those in Bargaining Units and those not, have been granted 3% pay raises. The wage increases were voluntary on the part of the City, that is, without the City going to Fact Finding and Conciliation with a claim of a lack of funds for those raises.
The City's layoff of the entire Dispatcher Bargaining Unit due to a lack of funds in February 1, 2002, while Dispatcher Bargaining Unit work was being performed by Patrol Officers, was in violation of Article 10, Section 2, of the June 1, 1999 Collective Bargaining Agreement entitled An Agreement Between City of Fostoria and Ohio Patrolmen's Benevolent Association, Dispatchers Unit, and the grievance is, therefore, sustained. All Dispatchers in the Bargaining Unit are to be returned to work and made whole for all losses sustained as the result of the City's contractual violation.
1. The City cited The Doubleday Dictionary for Home, School, and Office, Doubleday & Company, Inc., 1975.
2. On December 7, 2001, the Chief of Police forwarded a memo to the Safety Director discussing the layoffs, and it wasn't until February 1, 2002 that the layoffs were implemented.
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