Holding: City violated the bargaining agreement when it refused to
pay a police officer for 12 partial days of jury duty, even though the city
changed his schedule so that jury appearances would not conflict with his
scheduled duty.
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In re
City
of Urichsville, Ohio
and
Fraternal
Order of Police
Ohio
Labor Council, Inc.
119
LA (BNA) 1723
July
13, 2004
Norman R. Harlan,
Arbitrator
The Grievance (Quoted as Written 07/18/02)
“Please accept this letter
as step 2 (filing a written grievance) of the grievance procedure as per
Article 5 Section 02 of the F.O.P./City contract. As you are aware I have
attempted to resolve this matter informally by speaking to you, my shift
supervisor. (Sgt. Dorland & Sgt. Beal are on vacation at this time) on
07-17-03.
Once again, as you are
aware, I have been serving on the Tuscarawas County Grand Jury every Tuesday
since May 13, 2003. I had notified Sgt. Dorland & Chief Ross of possible
selection & eventual selection of the same. The departmental schedule had been
changed to where I now have Tuesdays off as a regular day off. At the beginning
of said Grand Jury term, I was unaware of how Article 19, Section 01 read.
After learning that any full-time employees who are required to serve shall be
paid for each day served, as Article 19 01 in the contract states, I went to
Sgt. Dorland & advised him that I would like the schedule changed. The
intentions were so that if I was working a scheduled shift during court hours,
the City would not incur any overtime in paying me while I was on a day off.
Sgt. Dorland agreed to the fact that I should be payed (sic) for attending
Grand Jury due to the contract stating the same, however, he advised that he
did not wish to change the schedule & would rather me just turn in overtime
for my time served thus far. As discussed, on 07-03-03 I completed 7 overtime
slips documenting said times & dates served at Grand Jury. These were
turned in to the Chief of Police for the next payroll. On 07-11-03 my paycheck
(attached) that was issued did not reflect my court overtime. I should also
advise you that Chief Ross spoke to me about this matter on 07-10-03 &
stated he would not pay me for court time. His reason was that I was not
`working’ on court days, therefore ineligible for `overtime.’ He added that
Article 19 section 01 only applied if an officer was `onduty’ (sic) during jury
duty. This did not seem right to me, due to the fact that if a city officer
was/onduty’(sic) while serving on a jury, why would there be a need for
overtime computation as stated in the contract? Either way he stated he would
not approve my overtime and stated `you know how to try and get it.’
On 07-14-03 I received my
overtime slips that I had completed for Jury Duty in my work mailbox. All 7
were marked denied &subsequently marked with the same date (attached), Thus
(sic) causing this grievance.
It is my opinion, the
opinion of other officers, as well as stated in the contract between the City
of Urichsville and the members of the Urichsville Police Dept., FOP, Article
19, section 01(D) (attached) reads that days paid for serving on jury duty
shall be considered days worked for the purpose of computing overtime pay.
I ask you do what you can
given your position as Sgt. & supervisor to correct this matter.
Just as a reminder, you
have one week to answer this grievance after it’s (sic) receipt which is today.
I look forward to hearing from you by Jul. 25, 2003, before I go onto (sic)
step 3.
Thank you for your
time.
/s/ Ptl. Brandon
McCray
Did the Employer violate the labor agreement by refusing to pay Brandon
McCray at the applicable contractual rate for time he served on the Grand Jury?
Contractual References
Article 5—Grievance
Procedure
Section 02. “The following
procedure shall be utilized for the handling of a bargaining member’s
grievance:
a. Step 1—Informal
e. Step 5—Arbitration
If the grievance is not
satisfactorily settled at Step #4, the F.O.P. may file a request for
arbitration. The F.O.P. must file such request within seven (7) days of the
Step #4 decision of the Mayor or his designee.
The Arbitrator will be
selected pursuant to: the State Employment Relations Board, rules of selection
of a Conciliator (Arbitrator). If an arbitrator is not selected from the first
list, a second list shall be provided to the parties.
The City and the F.O.P.
shall share the cost of the arbitrator equally.
The decision of the
arbitrator shall be final and binding on the parties. The arbitrator shall not
have the power to add or subtract from or modify any of the terms of the
Agreement.”
Article 13—Management
Rights
Section 01. “Except as
limited by the provisions of this Agreement, the Employer shall have the right
to:
2. “Direct, supervise,
evaluate, or hire employees;
3. Maintain and improve the
efficiency and effectiveness of governmental operations”
5. “... assign, schedule
...employees;
6. Determine the adequacy
of the work force;
8. “Effectively manage the
work force;”
Article 19—Jury Duty
Section 01
A. “Permanent full-time employees who are required to
serve on a County, Municipal, Federal Jury or Grand Jury, shall be paid for
each day served, the difference between the amount paid for such services, and
the amount equivalent to the daily rate for such employees.
B. Employees must notify
their supervisor within twenty-four (24) hours after receipt of notice of
selection for jury duty.
C. Any employee called for jury duty and who is
temporarily excused from attendance at court must report for work if a
reasonable period of time remains to be worked in his shift.
D. In order to be eligible
for such payment, the employee must furnish a written statement from the
appropriate public official showing the date and time served and the amount of
pay received. Days paid for serving on jury duty shall be considered days
worked for the purpose of computing overtime pay.”
Background
The City of Urichsville is
located in east central Ohio in Tuscarawas County. It is about 50 miles south of
Akron and 125 miles east-northeast of Columbus. It has a population of some
6,000. The City has a collective bargaining agreement (CBA) with the Fraternal
Order of Police, Ohio Labor Council, Inc. The City and the FOP have had a CBA
for 20 years.
The bargaining unit is comprised
of three (3) Sergeants and five (5) Patrolmen.
Brandon McCray was hired October
28, 2001. In the Spring of 2003 he was subpoenaed to serve on the Grand Jury
for the County of Tuscarawas. He notified the City (Chief of Police) as
required by the contract. He was selected from the jury pool and served from
May to August, 2003. He served on twelve (12) seperate days. Patrolman McCray
submitted overtime reports totaling twenty one (21) hours for May 13, 20, 27,
June 3, 17, 24, and July 1, 2003. His request for Overtime Pay was denied July
14, 2003. He grieved. He continued to serve on the Jury until August, 2003. The
Parties met at prescribed Step of the Grievance Procedure without resolution
and the Union referred the Matter to arbitration.
Consistent with the provisions
of Article 5 the Parties requested a list of arbitrators from the State
Employment Relations Board (SERB) of Ohio. The Undersigned was selected to
serve as the impartial arbitrator.
Union
1. Brandon McCray is a permanent
full-time employee.
2. He was subpoenaed to serve on
the County Grand Jury.
3. Officer McCray did not grieve for money. He asked for the schedule
to be changed so the City would not have to be in a position to be required to
pay him overtime. This was refused by the City. His reasonableness should not
be held against him.
4. He submitted overtime slips but the City refused to pay him.
5. The Union is aware with an 8-man force there are scheduling
problems.
6. The F.O.P. was contacted by
the City. The Union advised the City it had to pay the claim under the express
language of Article 19, Section 01-D.
7. An employee should not be punished for fulfilling his obligation as
a citizen.
8. The City violated the labor
agreement and the employee, Brandon McCray, should be made whole.
Employer
1. What is intended by the
contract must be understood.
2. The City does not have an
attorney. It simply went by its interpretation of the contract.
3. The City should not be required to shoulder the burden of Jury Duty.
Jury Duty is not a punishment; it is a civic duty. At one time police officers
were not required to serve.
4. The City has flexible
scheduling of the police force. There is no set or regular schedule. There are
only eight (8) officers. The schedule is determined by the needs of the City to
serve the public.
5. There must always be at least
one officer on duty.
6. The City had no knowledge
that officer McCray had proposed changing the schedule, rather than asking for
pay.
7. The City has never paid an officer under the circumstances presented
here. The Mayor was an officer for many years and never asked for extra pay.
8. The Jury Duty language in
Article 19 is intended to protect an employee from losing regular pay.
9. The City did not violate any
provision of the contract and the Grievance should be denied.
Discussion
The Union discussed both
overtime pay for officer McCray and regular rate of pay. As noted Officer
McCray submitted forms to be paid at his overtime rate for time served on the
County Grand Jury.
An analysis of Article 16
(Overtime) is germane prior to examining the language of Article 19 (Jury
Duty). Section 01. provides premium pay for “all hours worked in excess of 8
hours a shift or 40 hours a week.” Section 02. provides compensatory time “for
any overtime worked.” Section 05. states in pertinent part:
“Overtime worked shall be
done with a seniority list, providing the most senior member at the top of the
list most senior, etc ...” p. 15.
Clearly seniority plays no role
in the instant issue. Jury duty draws are not made on this basis. It should be
noted that the Union did not argue that Article 16 plays any role here. The
Arbitrator decided it would be prudent to address Article 16 to avoid any
possible confusion concerning overtime eligibility.
The F.O.P. stresses the language of Article 19, noting Mr. McCray is a
permanent full-time employee who was subpoenaed; thereby being “required” to
serve on the Grand Jury. He provided the
information to the City in a timely fashion as required by Section 01-D of
Article 19. It strongly emphasizes the last statement in 19-01-D which
states:
“... Days paid for serving on jury duty shall be considered days worked for the purpose of computing overtime pay.”
It is apparent in 19-01-D the
Parties contemplated a situation wherein an officer would be eligible for
overtime pay, namely, for “Days paid for serving on jury duty ...”
Conclusions
Article 13 is quoted, supra, p.
4. In part, it states the Employer has the authority to “schedule employees;”
“Determine the adequacy of the workforce;” and to “Effectively manage the
workforce.” The testimony of both Union and Management Witnesses clearly
establishes that officers do not work a regular shift. Officer McCray testified
he had been scheduled off twice on Sundays and Mondays over 3 years. He had not
been off on Tuesday on a regular basis.
When the City was notified by Officer McCray the Grand Jury would meet
on Tuesdays, it scheduled him off on Tuesdays. The Union is not questioning the
City’s right to do so. The evidence is persuasive the City, with only eight
officers, could not spare him. Thus, when he attended Jury Duty on the 12
Tuesdays when it met, he was off duty. Consequently, he was scheduled for his
5-day - 40 hour work week and did not suffer any loss of pay.
The Arbitrator is not
unsympathetic to the fiscal problems of any small city. The Arbitrator lives in
a small college town. Over the past ten years the population has shrunk from
3,000 to 1,500 and the college’s enrollment has dropped from 3,500 to 2,500.
There are vacant buildings, which formerly housed businesses. Having said this,
he finds it highly unusual that the City did not seek to have Officer McCray
removed from the Jury pool, not only because of its need to have him available
for work, but because of potential conflict of interest.
The City scheduled Officer
McCray to work five days and scheduled him off on Tuesdays. It is uncontested
that it had the right to do so. On the other hand, Article 19-01-D requires the “Days” McCray was paid
for while serving on Jury duty for twelve partial days to be considered as
overtime. He was paid for serving on Jury duty for thirty six (36) hours.
Arbitrators are cautioned not to make contract interpretations which are absurd
or nonsensical. It would be both absurd and nonsensical not to count partial
days as “Days” under Article 19-01-D.
Article 5, Section 02-e prohibits an arbitrator from amending the labor
agreement in any manner. As such, the Grievance is granted as specified below.
The amount is determined by multiplying McCray’s overtime rate of $19.08 per
hour by 36 hours less the $195.00 he was paid for Jury Duty service.
Award
1. $19.08 x 36 hours = $686.88,
less -195.00, $491.88
2. The City is directed to pay Officer McCray within thirty (30) days of receipt of the Award, the amount of $491.88 less Contractual and/or statutory deductions.