Fraternal Order of Police
Ohio Labor Council
119 LA (BNA) 1457
FMCS Case No. 04/52483
May 20, 2004
B.J. Speroff, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
Statement of Issue
There was no conjoint issue presented albeit the two central issues ad rem are: (1) whether the Township violated the labor agreement in denying the grievants incentive pay, and (2) whether the Township showed bias or partiality in waiving the educational requirements of other employees for a Criminal Justice degree but not for the grievants.
Position of the Union
The Union argues, in the main, the Township was violative of the labor agreement when it failed, under Article 35, Tuition and Education Incentives, Section 35.4, to award incentive bonuses to the two patrol officers; and that, moreover, the Township violated Article 36, Employee's Rights, Section 36.10, by not treating “... all members in an equal and fair manner”. It further posits the grievants are entitled to back pay dating to the time such violations became known to them.
Position of the Township
It is the stance of the Township the two grievants were properly denied the incentive bonus because they did not receive degrees “... in the criminal justice or related field pertaining to law enforcement or public administration ...”and thereby were not treated in an unfair or discriminatory manner. As to the matter of back pay it is posited back pay, if any is due, dates and commences from the time of the filing of the two grievances.
Findings of Fact and Discussion
The history of these two grievances is brief, empirical, and free of factual disputation. Both grievants, Sheri Howard and Ann Morgan, are patrol officers in good standing with three plus and almost two years of service respectively. First, anent Officer Howard, she provided evidence of possessing “... an associates degree in Applied Science in Radiation Therapy”; and further pointed out that other officers sans criminal justice degrees had received incentive bonuses. She initially grieved with a Sgt. Albert Fatute on 11 December 2003 asking for educational incentive pay “... due for 2001, 2002, and 2003”. This request was denied in Step 2 on 22 December 2003; thereupon the Union filed for arbitration on behalf of both Howard and Morgan on 29 January 2004 and culminating in the arbitration hearing held on 5 May 2004.
Second, anent Officer Morgan, she stated having a “... Bachelor of Fine Arts-Art ...” degree, and additionally added that at least one other officer, viz., a Greg Jenkins did not possess a criminal justice degree and yet was awarded an incentive bonus in December, 2003. She filed a grievance on 18 December 2003 with a Sgt. Matt Davis asking for incentive pay “...due for 2002 and 2003”. After a Step 2 rejection on 22 December 2003 the Union filed for arbitration on her behalf (as well as Howard supra) on 29 January 2004 and resulting in the arbitration hearing of 5 May 2004.
The Union representative, Keith Bullock, asserted, in the main, both grievants came to him and that he assisted them in the filing of their grievances; that he spoke with the Chief of Police, Steven Bailey, in Step 2 regarding reimbursing the grievants as per the educational incentive article; and, further, that he addressed the matter of other officers not degreed in criminal justice yet being paid the incentive bonuses. Finally, he averred speaking with the Township Administrator, David Duckworth, during Step 3 with particular emphasis on Detective John Swing and Officer Greg Jenkins drawing incentive pay despite not being degreed in criminal justice.
Police Chief Steven Bailey attested to the fact (that despite his somewhat collegial) memos of 4 December 2003 in re: Morgan and 1 December 2003 in re: Howard in the end neither officer met the requirements of Article 35, Section 35.4, and, accordingly, were deemed not to qualify for the educational incentive bonus. As to his anamnesis of the conversation with Bullock, he recalled telling him “... the contract language governs ...” and therefore the incentive entitlement was denied.
David Duckworth, the Township Administrator, propounded, in essence, neither officer met the degree stipulation, i.e., having a degree in criminal justice, and consequently both were denied the educational incentive bonus. He allowed as Sgt. Fatute did not qualify under Article 35.4 but took the chief's recommendation “... that his photography degree was needed as a job specialty”. He also asseverated that Officer Jenkins, who possessed a B.S. degree “... was thought to have a criminal justice minor ...” albeit it turned out not to be the case in fact.
B. Applicable contract provisions: analysis and discussion
Prior to the advent of unionism the Employer was both the proposer and disposer of all the ways and means of organizational activities and behavior. With the entrance of unions and collective bargaining however the labor agreement became a living mosaic of industrial governance (and democracy) such that it alters, modifies, abridges, abrogates or even institutes conditions of employment previously vested exclusively as a management prerogative. Accordingly, any rights or terms of employment that are not part and parcel of the written agreement or otherwise not found within the confines or ambit of the agreement redound to management because it is not expressly denied to them.
The contract language per se usually is replete with either permissive or mandated words or terms that carry different values, meanings or interpretations so that one either is inclined to abide by the “spirit” of the law or the “letter” of the law in enforcing or carrying out its provisions. To this end, words such as “may, might, should, could” inter alia are permissive in nature and thereby affords the enforcer an option (emphasis added) in how to execute or carry out a course of action.
On the other hand, such words as “can, will, must, shall” inter alia require a defined, specific, invariable course of action to be followed sans options being applicable. Viewed from still another perspective, permissive language allows for subjective intervention whilst mandated language is subject to objective—or fixed-parameters such that there is small room for feelings, emotions or extenuating circumstances to become part of the enforcement equation. In short, use of the mot juste rules!
In the instant case there are four contract provisions that impact on these grievances. Article 6, Section 6, 1, a, Management Rights, holds that management will “determine matters of inherent management policy which include but are not limited to areas of discretion or policy such as functions and programs of the Township”. [Neither party specifically drew attention to this Article during the hearing yet it represents a management oversight and control factor over Article 35.]
Article 8, Section 8.6, b, Step 4, Grievance Procedure, accords the Arbitrator a latitude for possible remediation “. . . . occurring at any time in the contract period in which such right originated” [This article would come into play if, e.g., as in the instant matter, back pay should become a factor.]
Article 35, Section 35.4, Tuition and Education Incentives, the critical proviso herein, holds “An employee who has received a degree in the criminal justice or related field pertaining to law enforcement or public administration (emphasis added) shall be entitled to an educational bonus ...” This language is pellucid and mandates a bonus to be paid only if one holds a degree in the defined areas. Neither Howard with a degree in Radiation Therapy nor Morgan with Fine Arts thus qualifies for such a largesse!
Article 36.10, Employees Rights, is the linchpin of the Union's case, and this proviso states “The employer agrees to treat all members in an equal and fair manner”. Incontrovertible testimony presented by the three Union witnesses—and not challenged by the Township-indicated that at least three other officers were given incentive pay bonuses despite not having degrees in the criminal justice rubric. Clearly then disparate treatment has been shown to exist!
C. Probative findings and denouement
Without piling Ossa on Pelion, and in short, the salient facts are: (1) the two officers did not qualify for the incentive bonuses because they did not meet the standard of possessing a degree in criminal justice; and (2) the two officers were subjected to disparate treatment inasmuch as other officers were awarded the incentive bonus albeit they also failed to meet the standard of a degree in criminal justice.
Under Article 6, Management Rights, the Township manifestly has the right to determine and spell out the policies, functions and programs it wishes to pursue. Such an umbrella however is protected only as long as it is not violative of Federal or State laws and/or curtailed by contractual language, viz., in this instance, Article 36.10, Employee's Rights, to treat all employees “... in an equal and fair manner”. Hence, management can exercise its unfettered judgment as long as it does not demonstrate or practice partiality, bias or favor in instances of a like nature. In the situations both grievants were—in effect—commended by the Police Chief whilst being ultimately turned down by the Township Administration.
Not unlike Odysseus navigating between Scylla and Charybdis, it becomes evident Chief Bailey finds himself in an untenable—even unenviable—position for on the one hand he needs to maintain a collegial relationship with the Township Administration whilst on the other hand he has to demonstrate a bonhomie towards his fellow officers. Unfortunately, in his efforts to placate his subalterns and still present himself as being impartial, he takes on a role for which he is neither prepared nor trained to fulfill, i.e., of an ultracrepidarian. [In no way is this obiter dictum meant to disparage or deride the Chief's intellectual and diplomatic skills rather to point out that he finds himself bearing an unfair burden with a “sticky wicket.”
For example, in JE 4 he has attempted to reconcile specific courses within a particular academic area that only an educational specialist would be qualified to certify and/or categorize.] It is obvious (at least in retrospect) the circumstances and conditions under—or by—which the three officers without criminal justice degrees were granted incentive bonuses could be attributable to extenuating and/or mitigating factors, e.g., in the instance of Sgt. Fatute, who possessed an “Associates of Photograph Technology” degree, Chief Bailey asserted this was a “...needed skill. . . .” (seemingly then lacking in the department).
Likewise, Officer Jenkins, who holds a B.S, in Physical Education & Recreation, was “... thought to have a minor in criminal justice”. As for Sgt. Swain it was found he actually holds a B.S. in Business Administration (though the circumstances of how this was uncovered were not dealt with in the hearing).
The argument could be advanced that under Article, Management Rights, the Township Administration, viz., Duckworth and Bailey, had the authority to issue dispensations or waivers to non-degreed criminal justice officers; however, the difficulty with such actions is one runs the risk of excepto probat regulam de rebus non exceptis (the exception establishes the rule as to things not excepted) (Chief Justice Sir James Mansfield, Rex v. Wickes (1769), 4 Burr, part IV, p. 2549); and, if such becomes the case that particular provision loses its significance, value and force and therein becomes a nullity and a non sequitur. Thus, one cannot act with impunity and then not encounter a Pandora's Box wherein exceptions “prove” the rule. In short, providing exemptions, waivers or dispensations opens a floodgate of future grievances! [As a precatory aside, if the Township wishes to have and/or reserve the ultimate right to exercise the use of discretionary power in matters relative to exemptions, and the like, such language should be incorporated specifically in the corpus of Article 35 or, at the very least, be appended as a Memo of Understanding as between the parties.]
In apercu, what one encounters herein is an instance—really two instances—wherein the Township Administration properly followed the “letter” of the contract, i.e., Article 35.4, in denying Howard and Morgan educational incentive pay, whilst at the same time violating the “spirit” of the contract, i.e., Article 36.10, by denying them such an emolument in the face of other officers being so rewarded and thereby being subjected to disparate treatment. In effect then one offense offsets the other and thereby raising the question as to what is the veridical nature and extent of the remedy to be exacted. [In this vein there is an anecdote that underscores the attendant problem at hand. A Chinese General in speaking to Ernest Hemingway said: “Let me tell you a Chinese story. Do you know why the British Staff Officer wears a single glass in his eye? He wears a single glass so he will not see more than he can understand” (Ernest Hemingway: A Life, Carlos Baker; NY: Chas Scribner's Sons, 1969, p. 361)]
In most cases of this nature with offsetting findings ceteris Paribus (other things being equal) an Arbitrator has recourse to the admonishment of Sir Francis Bacon who stated “When a Judge departs from the letter of the law he becomes a law breaker” (De Argumentis Scientiarum (1623)). While it is painful to deny the grievants their sought for remedy—and to avoid such contretemps in the future—a closing interjection by the Township posed a rather telling and ineluctable point that the adherence to the contractual language at this juncture should override the seeming “winking” at Article 35.4 by the Township Administration. Even this argument smacks of a rationalization, or attempted mitigation, of the Township's prior misuse and misapplication of this provision; nonetheless, in the absence of condign evidence there was an egregious, arbitrary, or pervasive application of disparate treatment afoot—and perhaps more so to serve as a tocsin for future grievance prevention by strictly adhering to the “letter” of Article 35.4 henceforth—the dictum abusus non tollit usum (abuse does not take away use) shall prevail in the instant matter.
Despite the fact the two grievant's academic credentials were clearly not within the ambit of Article 35.4, and despite the fact the Township manifestly discriminated against the grievants by denying them a bonus when it accorded this emolument to other officers who also did not qualify under Article 35.4, the Township would compound its errors—and quite possibly open itself up for a plethora of grievances by allowing for exceptions or exemptions to prevail as the means to an end—if it did not assert—at some point, sooner rather than later—its strict and unswerving adherence as well as application of this contractual provision. Accordingly, the two grievances are hereby denied.