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.
City of Urichsville, Ohio
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?
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
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.”
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.
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.
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.
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 ...”
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.
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.