City of Mansfield
International Association of Firefighters
121 LA (BNA) 1141
FMCS Case No. 0555999-8
October 10, 2005
Gregory P. Szuter, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
This arbitration arises from two decisions on the disciplinary demotion of a fire officer, H__, (herein “Grievant”) from a captain to a firefighter. Protesting the demotion decisions were several grievances filed by the International Association of Firefighters, Local #266 (herein “IAFF”) against the City of Mansfield, Ohio (herein “Employer”) pursuant to a collective bargaining agreement between the City of Mansfield and Local #266 of the International Association of Firefighters dated effective December 1, 2002 through December 1, 2005 (herein “Agreement” or “CBA”). The bargaining unit consists of regular full time firefighters, captains and probationary firefighters.
I. Statement of the Case
The arbitration was commenced following two grievances signed by the Grievant and given to the Union dated February 25, 2005 and one on June 26, 2005.
II. The Grievance
The events of January 5 and 6, 2005 involving the Grievant and the aftermath throughout the grievance procedure resulted in six grievances numbered Grievances 05-01, 05-02, 05-03, 05-10, 05-11 and 05-13. At hearing, of these 05-10 was represented as moot and 05-03 and 05-11 were represented as withdrawn without prejudice. As the subject of this arbitration were left grievances 05-01, 05-02 and 05-13.
III. Collective Bargaining Agreement
IV. Statement of the Issues for Decision
The Parties agreed to the City’s statement of the issue which appears in italics below. At the hearing, it was noted that the grievances presented included subsidiary issues. Those subsidiary issues as identified by the Arbitrator after discussion with the Parties as found from the grievances are also listed.
1. Did the City violate the collective bargaining agreement by demoting H__ from a captain to a firefighter? If not, what shall the remedy be?
(A) Does the City’s alleged failure to hold a meeting and provide an answer within the time limits of the grievance procedure result in granting the grievance by such a default?
(B) Was the City’s failure to hold a meeting and provide an answer within the time limits of the grievance procedure from the incident for which discipline is assessed preclude the decision to discipline from being considered in arbitration?
2. Since H__ had two incidents of alleged misconduct, did the City act properly in making the demotion apply to both incidents? If not, what shall the remedy be?
(A) Did the City’s decision the rescind discipline and replace with different discipline constitute double jeopardy?
(B) Did the City’s decision the rescind discipline and replace with different discipline constitute a proper application of the merger and bar doctrine?
VI. Positions of the Parties
A. The City’s Position
The City of Mansfield suffered an historic ice storm on January 5, 2005. On that day, at approximately 5:15 p.m., the Mansfield Fire Department began responding to calls about downed trees and power lines. At 9:40 p.m., Engine Company No. 6, captained by Grievant, was dispatched to a downed power line on Helen Ave. Engine 6 was not heard from again until after midnight when Captain Rippey, who was searching for the unit, found it parked on Helen Ave. next to a downed power line with its emergency lights off but with parking lights on. Capt. Rippey approached with a flashlight shined into the cab and then knocked on the door next to Grievant for some time before arousing the occupants. This legitimately gave Captain Rippey the inference of sleeping. Grievant told Captain Rippey that the Engine 6 was awaiting the electric company truck. Rippey told him to tape off the downed line and to proceed with other calls.
On January 6, 2005, Grievant stayed over for another shift due to the storm. He took a fuel tanker truck to the City’s fuel farm, filled the tanker with unleaded gasoline, and then proceeded to fill two diesel powered units with gasoline. The error was caught, but in the process of correcting the fuel mistake, the three units were put out of commission. At the hearing Grievant admitted the facts of this offense.
Grievant was charged with incompetency and neglect of duty for the Helen Ave. incident. After the pre-disciplinary conference, the Chief recommended that Grievant be demoted from captain to firefighter. This recommendation was sustained by the Service – Safety Director.
For the fuel tanker incident, Grievant was charged with violating the Department’s Rule and Regulation 104.92. After the pre-disciplinary conference, the Chief recommended Grievant be suspended without pay for two working days. Subsequently this recommendation was changed to a “conditional termination.” It was amended again after considering the ramifications of threatened litigation when the “conditional termination” was rescinded and Grievant was given a demotion from captain to firefighter for the fuel incident. This demotion was merged with the demotion given for the neglect of duty during the ice storm. The merger of the discipline was done in conformity with Ohio Administrative Code §124-3-05.
In summary, Grievant’s acts on January 5th and January 6th respectively constitute just cause acts. Examples of just cause listed in the agreement include incompetency, neglect of duty, and other acts of misfeasance or malfeasance or nonfeasance. Each act considered alone could have warranted discharge and certainly warranted the lesser disciplinary action taken.
The just cause inquiry is whether in the circumstances there is reasonable justification arising from the employee’s conduct to warrant discipline. Sleeping on the job has been held to be just cause.1 The acts charged were of serious misconduct and as such are not subject to progressive discipline (CBA 6.3). “Serious” misconduct, given its ordinary dictionary meaning, means having important or dangerous consequences. The City acted properly in demoting Grievant from a captain to a firefighter based on both incidents.
The grievance was given to the Chief on February 28, 2005. The Chief was to hold a meeting within seven days (CBA 7.5, D-Step 4(2)) and answer in writing within 14 days (i.e. seven days after the meeting) (CBA 7.5, D-Step 4(3)). From March 1 to March 14, 2005 the Chief was on leave due to his father’s terminal illness and death. On March 14, 2005 the Chief met with the Union on the two grievances. The Chief asked that the papers be put in order and the Union did so returning the grievances to him. He then asked for additional time and the Union representative refused the request. A Step 4 meeting was held on the following day, one day after the 14 day period for the City’s response. The City submits that this is a non-prejudicial failure to meet a technical requirement that can be justified in the circumstances without any harm to the Grievant and does not prevent the merits from being fairly considered in arbitration. A technical requirement that is non-prejudicial to the Grievant does not prevent a remedy through arbitration and a default award is not called for.2
The merger of the demotion for the fuel incident with the demotion for the Helen Ave. incident are fully compliant with Ohio Administrative Code, Sec. 124-3-05(C). Under its terms, the discipline of “conditional termination” was rescinded for the tanker incident and demotion was substituted. This revision was made on June 7, 2005.
The determination of the penalty is properly the function of management and an arbitrator ought not to disturb it absent an abuse of discretion.3 The City’s decision to discipline Grievant was made in good faith upon a fair investigation and should not be disturbed.
B. The Union’s Position
The demotion must be overturned for a variety of reasons. First the City failed to comply with time limits for holding a meeting and issuing its answer in the grievance procedure. The express language of the Agreement requires that such a failure resolves the grievance in the Grievant’s favor. The just cause was not proven on the merits and the discipline was not progressive. The City did not meet its burden of proof that Grievant was sleeping. On the fueling incident, the City did not prove the infraction was more than a mistake. Double jeopardy prohibits the City from using the fueling incident as a basis for demotion because it had already previously assessed the conditional termination which was an unlawful form of discipline. Third, the time limit with respect to the fueling incident had passed.
The City cannot rely upon the ice storm incident because it failed to meet its burden of proving that the Grievant was sleeping. The Grievant repeatedly denied sleeping when asked at the pre-disciplinary hearing, grievance procedure and the arbitration. In pre-arbitration proceedings his crew also denied they were asleep. Contrary to typical sleeping cases, the Grievant was not observed by more than one person nor for a lengthy period of time. Captain Rippey had only been one minute on the scene to make his observations, give directions and proceed on.
Alternatively the Union submits that there is no rule that the crew could not sleep in the truck while waiting for the barricades that they had requested even if they had they done so. Only Rule 104.12 bears on sleeping. That deals with time spent by employees in their bunks and prohibiting sleeping in chairs in the fire house A Grievant cannot be disciplined for sleeping at a time that was not prohibited by department rules.4
Fueling incident was admitted by Grievant but explained as a mistake in the confusion at the tank farm. This does not prove deliberate misconduct. Additionally, the City’s demotion decisions fail to meet standard of progressive and uniform discipline. Progressive discipline is by nature corrective and not punitive.5
Timeliness is a factor in both incidents. The Chief’s response on March 15th was not timely because the contract requires that the Chief hold a meeting within seven (7) days of the grievance and then respond in writing within seven (7) days thereafter. Both elements are necessary. Failure to meet grievance procedure deadline is tantamount to granting the grievance. The Employer needs to both request and receive an extension to prevent such a consequence.6 Such provisions have been enforced in arbitration under their terms.7 The City’s position that the answer was timely provided with seven (7) days of the meeting and that the circumstances affecting the chief makes the timing a technicality is prejudicial to the Union. There can be no limit to when the answer would be due under the City’s argument that timeliness is non-prejudicial technicality.
The City argues that O.A.C. 124-3-05 states that once discipline is imposed for a particular incident, the discipline may be rescinded and another discipline substituted. That the administrative code section is limited to state and county agencies in health districts and has no effect as to cities. O.A.C. 124-1-01.
The City imposed demotion for the same incident that led to the “conditional termination.” Once discipline is imposed for an incident another discipline cannot be imposed for same incident.8 The City cannot rely upon the fueling incident to support demotion because the discipline is barred by double jeopardy and the period in which the City had to impose had elapsed.
VII. Finding of Facts on the Record Considered as a Whole
On the afternoon of January 5, 2005, a major two day ice storm began in the City of Mansfield, Ohio, causing widespread power outages, downed utility lines and tree falls. It was one of the worst ice storms in the 197 year history of the City. Over 66,000 people were affected. On the first day of the storm, beginning about 5:15 p.m. and until midnight, five of the engine and ladder truck companies of the City fire department averaged 15 calls each, or about two per hour arithmetically. One, Engine Company No. 6, had answered only 4.
Grievant, captain of the Engine Company No. 6, with his two man crew responded to three calls before the one to 139 Helen Ave. at 9:40 p.m. There they found a power line that was down and lying in the roadway which presented a hazard to any motor vehicle traffic that would use the road. It was a single house service line. It was not arcing. His crew placed a cone on the road and positioned the truck to block the road to deflect any potential vehicular traffic from the downed line. The running lights were left on the truck but the emergency lights were not activated. Grievant explained he believed the emergency lights would draw attention and possibly civilians to the scene.
Grievant called the City garage for barricades to block the road. He said he made repeated calls to determine when the barricades would arrive. He planned to barricade the road until the power company could attend to the line. However, with the damage from the storm, he said it was obvious the power company would be delayed. Each time he inquired, he said the garage promised that barricades would be sent but they never arrived before 12:20 a.m.
At 11:30 p.m. Captain George Rippey of Engine Company No. 4 and senior captain that night had finished a call at Woodland Ave. with his crew. He called the dispatcher about the location of Engine Company No. 6 which had been “out of action” for some time. The dispatcher told him that No. 6 was last at Helen Ave. Capt. Rippey said he would try to get there. Before he was under way, the dispatch gave him a call at Western Ave. which was near Helen Ave.
Captain Rippey testified he had not heard Engine No. 6 on the radio for “several hours.” It had been two hours and forty minutes since No. 6 was dispatched. If it were “hours” since the last contact, the calls to the garage must have been made sometime around the time No. 6 first arrived at Helen Ave. This means there could not have been many repeated calls for barricades.
The Western Ave. call was the second on the same problem and did not take long to handle. When No. 4 was between calls, Capt. Rippey proceeded to Helen Ave. looking for No. 6. When he arrived at there at 12:20 p.m., he found Engine No. 6 parked with the running lights on but the emergency lights off. He left his truck and approached Engine No. 6. Capt. Rippey flashed his light into the cab of Engine No. 6 and saw Grievant seated next to the door on the front passenger side in the typical captain’s position but no one else. Grievant did not react to the light. Capt. Rippey walked around the truck to assess the situation. He returned to the door and found that Grievant still had not responded to the light. Capt. Rippey knocked on the glass of the door next to the Grievant with his hand. Grievant did not respond to that either. Then Capt. Rippey rapped his flashlight on the glass next to the Grievant. At that point the Grievant’s attention was given to Capt. Rippey. Grievant got out of the truck cab when he saw Capt. Rippey’s expression. Capt. Rippey admitted the emotion of “disgust” and “looking unhappy” because the other engine companies had been responding to many calls all night while Engine Company No. 6 had been parked. The two members of the crew, who had been in back, then alighted from the fire truck.
Capt. Rippey testified that he believed that Grievant had been asleep based on his observations during the several attempts to arouse his attention. He believed the two crew members had also been asleep. Although he had not observed them until they came out of the truck, he thought they acted like men who had only just awakened.
At the time the engine of the fire truck was running. The radio was on and radio traffic could be plainly heard. In addition Grievant testified that there was an audible alarm that was malfunctioning on the dash. Grievant said that it would not turn off and it was constantly sounding but Capt. Rippey did not observe it.
In their brief conversation, Grievant said that he was waiting for the power company and the barricades. Capt. Rippey told Grievant to have his crew tape off the line and to “get into the game.” i.e. begin responding to other calls). He told Grievant that the service line was a hazard but was low priority considering the magnitude of the department’s responsibilities during the storm. Other crews were routinely taping off lines as was evident from the radio traffic.
Capt. Rippey and Grievant were of similar rank. However, Capt. Rippey was the senior captain whose orders are to be followed by a junior captain such as the Grievant. Grievant and his crew immediately went about doing as Capt. Rippey instructed.
In the ensuing investigation conducted by Chief Hartson at the pre-disciplinary conference Grievant denied that he was sleeping. He denied that as well in later steps of the grievance procedure and at the arbitration. At the arbitration hearing he cited the noise of the truck engine, the radio traffic and the malfunctioning alarm as circumstances corroborating the unlikelihood that he was sleeping. In pre-arbitration investigations, the other two crew members denied sleeping at the scene also. They were not called to testify at the arbitration by the Union.
Had Grievant and the crew not been sleeping, they would have heard radio traffic of the extraordinary demands on the other five engine and ladder companies. The five others were responding to 2 calls per hour. That is a City-wide average of 8 per hour which would have been evident on the radio at about once every 10 to 15 minutes on average.
Engine Company No. 6 would have also heard some of the nature of the calls. As Capt. Rippey testified they would have heard that other crews were taping off lines and moving on after securing the scene. With so many lines down according to the testimony on power outages, they would have known they were not responding to the only downed house line. Grievant admitted knowing the power company was too busy to get to the residential call on Helen. If he was not sleeping, Grievant took no initiative for at least two hours to inquire, or report or offer aid, even to the call given to Engine No. 4 on Western which was near Helen, the second call to that nearby location. With all that going on, he stayed at Helen Ave. for nearly three hours. The Arbitrator is convinced Grievant was sleeping and that his explanation is not plausible and is overreaching.
The storm continued into the following morning. At the end of his shift at 7:30 a.m. Grievant offered to stay over because the oncoming shift members were having difficulty reporting through the storm putting the department in need of staff. On his extended shift on the following day, January 6th, after having worked approximately 30 hours straight, Grievant was directed to fill the bulk diesel fuel tanker truck. He drove the fuel tank to the county garage fuel farm where there were several pumps. Normally he would have used a different facility. Other vehicles were also attempting to be fueled. He pulled into the county fuel tank farm next to a diesel pump. When other trucks began to arrive needing to be refueled more quickly than the fuel tanker, Grievant moved his truck to accommodate them. In the jockeying around the pumps, Grievant’s tanker ended up in front of a gasoline pump. Grievant then proceeded to fill the bulk tank with gasoline. He left the fuel farm and transported the gasoline to two other department vehicles in need of diesel fuel, Rescue Units 1 & 2. He filled them both with gasoline. However, when he realized the mistake he turned off the ignition of the other vehicles. Rescue Units 1 & 2 and the fuel tanker truck were out of service for 4.5 hours with an immediate cost to rectify the problem of $1,024.26. There was evidence of additional costs but the amount was not put in evidence. Grievant never denied these events but only added that fatigue and confusion contributed to the mistake which was unintentional.
Both incidents were separately investigated. At the conclusion of the investigation, a pre-disciplinary hearing was held separately on each incident. The two events of January 5 and 6 of 2005, each led to separate assessments of discipline and to respective grievances. A pre-disciplinary conference was held on January 20, 2005 on the ice storm incident with a notice stating the Grievant was charged with “sleeping on an emergency run.” At the conclusion of the pre-disciplinary conference on the ice storm incident, the Chief recommended the discipline of a reduction in rank from captain to firefighter for incompetence and neglect of duty. That was upheld by the City official acting for the Service –Safety Director. The demotion was effective February 26, 2005.
Also on January 20, 2005, a separate pre-disciplinary conference was held on the fueling incident. The charges stated the Grievant filled the tanker with gasoline instead of diesel and contaminated three vehicles. At the conclusion of that pre-disciplinary conference, the Chief recommended that discipline of a two-day suspension to be assessed for violation of Rule 104.134 “deliberate destruction of city property.” However this recommendation was not accepted. The City through the official acting for the Service – Safety Director determined that the Grievant would be terminated from employment upon his return to the rank of Captain. This is referred to as the “conditional termination.” The apparent intention of the City for a “conditional termination” was that, should the demotion for the ice storm incident be rescinded, the fueling incident would have supported termination. However, the City apparently failed to conceive of the opposite result. That is, Grievant could avoid termination only by losing an arbitration over the ice storm demotion or by not grieving the demotion whatsoever.
Two grievances were written on February 25, 2005, approved by the Union and submitted to the Chief no later than February 28, 2005. Grievant filed grievance #05-01 on the conditional termination for the fueling incident and grievance #05-02 on the ice storm demotion.
Beginning on March 1st and through March 14th the Chief was absent on leave due to the terminal illness of his father in Columbus, Ohio (60 miles distant) and subsequently his death. His father died March 8 and the bereavement leave ended March 11, 2005 with March 12 ad 13 being scheduled off days (weekend). The Chief returned on an occasion in the interim such as to sign payroll. However, he was generally off duty for the duration. According to the evidence, no acting chief had ever been appointed by the City during Chief Hartson’s tenure. The first deputy assistant chief sometimes substituted for the Chief in his absence but the grievances in question had already been provided to the assistant chief at Step 3.
The Chief received the grievance for Step 4 on February 28, 2005. On his return on March 14th the Chief met with two Union grievance committeemen, Union President Andy Heth and Matt Shafley, on the grievances. Neither of these testified for the Union. There appears to have been some disarray in the sequence of papers and the Chief asked the Union to sort the matter out and get back to him. The paperwork was returned the same day. Then the Chief asked for some additional time to respond. The answer was in the negative.
On March 15th the Chief acknowledging the correction and re-submission of the paperwork on March 14, gave notice of a meeting “today March 25” on 05-01 and 05-02. The Union brought this mis-date to his attention and he corrected it. The meeting was held March 15 with the Grievant present and two Grievance Committee members, Capt. Parsons and Capt. Strickland, but without President Heth. Apparently March 14 had been an off duty day for Grievant. The Chief again asked for additional time and was refused. The City’s answer the same day denied both grievances.
Both grievances which were then processed to Step 5 with the Service – Safety Director. The Step 5 hearings on grievance 05-01 and 05-02 were held on April 1 and on April 10, 2005. In the Step 5 meetings the Union focused almost exclusively on the timeliness at Step 4 and the contractual consequences for failure. Very little beyond the Grievant’s admission of the fuel incident and denial of sleeping was elicited with respect to the merits.
Grievant retained counsel and through communication with the City persuaded the City to rescind the conditional termination “to clear up a federal 1983 claim pointed out by your attorney.” The conditional termination was rescinded by the City on June 7, 2005. Grievant then filed Grievance 05-13 on June 26, 2005 contesting the demotion based on the fueling incident raising the doctrine of merger and bar, just cause and the time limits. It also addressed the ice storm incident since the City appeared to relate the two. It was denied ultimately at Step 5 by the Service – Safety Director on July 25, 2005. Grievances 05-01 (fuel tanker), 05-02 (ice storm) and 05-13 (merger and bar) were submitted to arbitration.
VIII. Application of the Agreement to the Finding of Facts
A. Timeliness in the Grievance Procedure
The timeliness challenge addressees two potions of the record. First the Union argues that the failure of the City to meet and respond to the Grievances at Step 4 in March, 2005, constitutes granting the grievance. Second, the rescission of the “conditional termination” decision as the penalty for the fuel tanker event and its replacement with a demotion decision in June, 2005, is so far beyond the precipitating incident that it should preclude hearing the fuel tank issue in arbitration.
1) Timeliness: February Grievances
The Agreement provides that the Chief “shall” hold a meeting within seven days of the grievance and that he “will” answer in writing within seven days thereafter. If the City “fails” to answer timely, the grievance is to be considered “resolved in favor of the grievant without precedent.”
Agreements that have default resolutions in favor of a grievant or union are uncommon. In one survey it was reported that such default provisions represent 2% of the collective bargaining agreements surveyed.9 Whether it continues as rare as that in other sectors and times, it likely remains a severe minority of cases. As such an anomaly it ought to be closely construed on the presumption that the bargaining parties knew they were in new territory and would expect to foray guardedly. Indeed the clarification that the default resolution was non-precedential recognizes that.
The City argues that the requirements of Step 4 are technical and ought not be enforced because there is no prejudice to any party in the arbitration. It says such technicalities ought not prevent the grievance from being heard on the merits allowing the Arbitrator to provide any necessary remedy. While it is true that some arbitrators have held that there is a presumption that a grievance ought to be processed to hearing on the merits rather than be dismissed on technical grounds,10 this Agreement presents a different situation. It calls for a default resolution for the Grievant. That removes the Step 4 procedures (and above) from being mere technicalities that do not prejudice the Grievant.
The Union is correct that holding the meeting and answering timely are mandatory steps notwithstanding the difference in verbs used. Here a meeting took place and the answer was timely.
The grievance arrived by February 28, 2005. Seven days later would set the meeting at March 7. On March 1 through March 14 the Chief was absent for the terminal illness and death of his father. The Chief’s father, who died March 8, must have been in extremis for much of the prior week. On his return, the Chief and the Union representatives held a meeting on March 14th. The evidence for this is exclusively the Chief’s description since none of the other attendees testified. The Chief states that it happened but not why, that the papers were in disarray and that he asked the Union to clear them up and get back to him. Also the Grievant was not available that day. The Grievance Committeemen left to clear up the pagination. The papers were returned to the Chief on the same day. The Chief asked for more time and he was refused.
The Parties met apparently voluntarily and not under protest on March 14th, notwithstanding that it would have been the last day for answer had the meeting been held on March 7. The fact that the Grievant was absent is irrelevant since Step 4 states the Grievance Committee would present the grievance. The fact that the meeting turned out to be paper shuffling does not change that it was a meeting. Indeed the Union testimony was indignant that the meeting was not more substantive and blamed the Chief for the paper mix up. The meeting continued that day when the papers were brought back but only long enough for the Chief to ask for an extension and to be refused. No doubt, there was a meeting on the grievance with the Union’s participation. It was well enough past March 7 that the Union is estopped from any insistence on the untimeliness of the meeting.
Even disregarding the March 14 meeting, the same analysis applies to the March 15th meeting. On March 15 a notice to the Union set a meeting for “today March 25” and recounted the paper shuffling of March 14. The Union had notice, informed the Chief of the date typo for his clarification, and attended as clarified. Two Grievance Committeemen returned on March 15th with the Grievant. Another extension was requested and refused. While the record is silent about the origin of the March 14 meeting, this one was partly established by the Union on March 15 rather than 25. This was either a continuation of the Step 4 meeting from the prior day or there was the only one Step 4 meeting on one of the two dates. Under any one of three analyses of the facts, the Union is estopped from denying that a Step 4 meeting with the Grievance Committee was held by the Chief. The Union actively participated in arranging it in part and so acquiesced in the timing. The answer was within time. The default resolution for the Grievant is not supported by the facts.
The time limits are respected with consequences understood by the Parties when the Union is late. However, that is under a different formula than the one that triggers the consequence of a default grant of the grievance. Other portions of Section 7.3 use language like “not timely appealed” or “not answered.” The consequence of those is the resolution of the City’s last answer.
With respect to the answer at Step 4 and above there is a different formula, “...if the City fails to timely answer ...”. That description refers to a different quality of dereliction. Failing implies a standard of a responsibility such as a failing grade. To fail must be “abandonment” or “wanting in action.” Cf. Black’s Law Dictionary 5th ed. Here action was not wanting in the sense that a meeting was held and an answer given. Here there was no active abandonment of the answer requirement. By contrast, there were various efforts to address it even with the Grievance Committee cooperation on March 14 and 15.
Having found no merit to the Union’s timeliness argument, only dictum remains. What must the Union do to have the benefit of the default in favor of a grievant? If it was secure in its reading, it would not have met at all, declared victory, and filed a grievance to obtain the benefit of the contract if the City disagreed. At least it might have reserved its protest early on, such as on March 8. Such a tack may be too chancy for the grievant who may prefer having his case decided on the merits. Bald refusal to meet has other hazards. The City asked at least twice for an extension in order to have a meaningful meeting. Under the circumstances well known to the Union, it ought not have been refused. Suppose it was the Chief that was gravely ill, or even that he might have expired at his desk before being able to meet or answer under Step 4. Would the Union be countenanced to refuse the City an extension? The obvious negative answer is compelled here. It is an equitable maxim that he who seeks equity must do equity. The Union is seeking equity in the form of reinstatement and back pay for Grievant. It behooves the Union to extend equitable reception to the City’s double requests for time in these peculiar circumstances. The default resolution in favor of the grievant is a rare sanction. The City’s provocation needs to be of some order of severity, at least a “failure.” The default resolution is not technical but applies to the unusual case of the City is dragging out the grievance process by not answering. That is not this situation.
Both bargaining parties have an obligation to make the pre-arbitration grievance adjustment process work. The Union knew the situation by March 7 and try to make the grievance procedure functional. Neither did the City but with less fault since the Chief was unavoidably absent. The Union cannot standby without exercising proper discretion in compelling circumstances in order to snap up a bargain. The City cannot, without a truly once in a lifetime exception, standby and expect that the time limits of Step 4 and above are mere technicalities to be honored in their breach.
2) Timeliness: June Grievance
The fuel tanker event was in January and Service –Safety Director affirmed the City decisions on the February grievances in April at Step 5. The rescission of the “conditional termination” decision as the penalty for the fuel tanker event and its replacement with a demotion decision took place in June, 2005. The Union argues that this is so far beyond the precipitating incident in January that it should be precluded from the arbitration based on the timing requirements of the grievance procedure. The third grievance (05-13) was filed and timely processed. It addresses this new decision under the double jeopardy and failure of merger doctrines. By arguing those issues in the guise of a time requirement and adds nothing substantively to the grievance.
B. Helen Ave.—Just Cause
The Agreement has an express just cause requirement, including for demotion (“reduction in rank.”) The agreed listing of just cause for discipline in the Agreement includes “Incompetency, ... neglect of duty, ... or other acts of misfeasance, malfeasance of nonfeasance....” Progressive application of disciplinary penalties is the norm except in cases of “serious misconduct.” The dictionary definition relied upon by the City for “serious” is apropos as having important or dangerous consequences.
The notice of the pre-disciplinary hearing stated Grievant was to respond to sleeping on duty. He denied it. Afterwards the discipline decision was made based on that investigation. Grievant was charged with incompetence and neglect of duty and penalized by reduction of rank.
There is no specific sleeping rule that is applicable, viz. Section 104.12. However, it is ingenuous for the Union to insist that sleeping on an emergency call is permissible because the City’s storm and while on a call is punishable as “Incompetency, ... neglect of duty” which are negotiated bases for just cause to discipline.
The inference from the evidence was either that Grievant was asleep on duty in a major weather event based on Capt. Rippey’s observations, or he was not sleeping and was consciously derelict of duty as a commander of first responders in a local disaster. Either conclusion of the facts is serious misconduct. Unfortunately, Grievant insists that he was not asleep. That is somewhat the worse state of facts. If so he was standing aside knowing his fellows, as he heard on the radio since he was awake, were in the thick of fighting a serious weather threat that exposed the public to power loss, home damage and severe cold. He used no responsible initiative for hours, including the minimal initiative to radio an offer to be of service in a serious weather event for the mid-Ohio climate. Thus the inferences from the facts on the Helen Ave. incident are that either Grievant consciously or negligently withdrew from the disaster.
As a captain, Grievant’s duty extends beyond that of a firefighter. He is obliged to the public to have his crew do the most good in the least time. Instead he wasted his crew’s time. Being out of the game when the public needed pro-active protection of life, person and property is serious misconduct. The Arbitrator is clearly convinced that the offenses charged constituted just cause and are serious enough that progressivity need not be followed. Grievant showed he was undeserving of the captain rank that day.
C. The Fuel Tanker Incident
This event was the subject of two grievances, 05-01 and 05-13. They raise just cause issues which includes due process issues that are considered as part of a just cause analysis. They are lack of progressivity, discriminatory discipline and the double jeopardy and merger and bar doctrines.
1) Double Jeopardy/Merger and Bar
The rescission of conditional termination and substitution of demotion is double jeopardy according to the Union but is permissible under merger and bar by the City. The difference is the focus on either two penalties for the same event as the Union perceives, or one penalty for two events, as the City discerns.
The City contends that the cause for second discipline (fuel tanker) can be merged with the event that produced the first discipline decision (ice storm) and have the same penalty assessed, demotion. In other words it says there were two demotion decisions, and the two became one demotion. The basis for this is the civil service regulations.
The Union argues that multiple penalties for the same event (fuel tanker) is not permitted under the double jeopardy doctrine as developed in grievance arbitration. The Union also disputes that the merger/bar doctrine is aptly applied. The Union’s contention of double jeopardy is not well taken but it is correct on the merger and bar analysis.
The double jeopardy doctrine prohibits disciplining an employee twice for the same event where the second discipline is greater than the first. The purpose is to preclude an employer from imposing greater discipline after an investigation.11 Here the initial decision was “conditional termination” which was rescinded to demotion. Notwithstanding that the initial decision on the fuel tanker event was fraught with legal and contractual errors of due process, it was nonetheless a penalty greater than reduction of rank. The demotion constituted a lesser penalty and is not prohibited by the double jeopardy doctrine.
The Union is correct that the regulation applied by the City was a civil service regulation applicable to the state, counties and hospital districts and not to municipal corporations. O.A.C. 124-3-05. Ignoring that, however, it is apparent that the statement of the regulation incorporates the general principles which were not properly applied.
Disciplinary decisions to assess serious penalties must include all prior events otherwise those prior events are not grist for separate discipline, i.e. they are merged. If the incident occurs after the one on which the serious discipline is imposed, it may be used for an independent decision. That is, they are not merged. O.A.C. 124-3-05(A). Here the fuel tanker event came after the ice storm and may be the basis of a separate decision. Once discipline is assessed, the event cannot be used for a second disciplinary decision. This is the bar aspect. O.A.C. 124-3-05(B). Here there are two disciplinary decisions on the fuel tanker. The 1991 amendment to the regulation, O.A.C. 124-3-05(C), apparently sought to address this. An employer may rescind non-oral discipline and such rescission does bar issuing another non-oral discipline based upon the same allegations. In other words, greater discipline can be rescinded in favor of lesser. If it were the opposite, that lesser could be rescinded in favor or greater, then it would come afoul of the double jeopardy doctrine. The “bar” of the regulation and double jeopardy doctrine must be read in conformity.
The City’s application of the principles (or regulation) are incorrect. The City may reduce the penalty of conditional termination to demotion. However, it is arguing that the two demotions are merged. They are not merged. Consistent with O.A.C. 124-3-05(A), since the ice storm event is prior to the fuel tanker incident, it cannot be included in the second decision to demote Grievant. There are two decisions to demote Grievant and they each must stand on the merits and the later cannot be merged backwards with the earlier one that already had a penalty.
2) Fuel Tanker—Just Cause
The record is convincing that the fuel tanker incident was not deliberate. It was a mix up arising out of jockeying the trucks around fuel pumps at less familiar fuel farm so that the fuel tanker ended up in front of the wrong pump. This was due to Grievant’s inattention through fatigue or pure misadventure. It was also costly. The most immediate loss was time out of service for men and trucks and the waste of fuel even without regard to any potential mechanical problems that were not in evidence. However, the amount of damage is not indicative of the cause.
Section 104.92 referred to in the charge does not state that only deliberateness is to be punished but includes “contribution” to damage by any cause, even neglect. The Agreement requires that it must be “serious” misconduct to skip progressivity. To be serious enough to skip over the curative effects of corrective prior disciplinary steps requires some higher level of intent than is evident on the record. The demotion was not warranted for the fuel tanker incident.
The issue remains whether a lesser form of discipline might be justified. The record is convincing that it is the existence of two back to back events that lead to Grievant’s second punishment. The discipline had been escalated from a recommended two day suspension to conditional termination and finally demotion. The merger/bar doctrine precludes the later from being added to the earlier which had its own penalty. Since the second incident is at best a mix-up, having a worse (initially) penalty, proportionality of the penalty was lacking. While the HR Director stated the City was reticent to remove Grievant from employment, it imposed an arguable illegal discipline that is tantamount to termination for an issue of inadvertence at the very worst. This makes it difficult to analyze management’s decision making process on the appropriate penalty for the event. The City simply could not decide what should be done.
The City suggests that the type of discipline it finally chose (demotion) ought not be set aside unless that choice were an abuse of discretion. That standard is easy to apply in the fuel tanker incident. The discretion of the City was abused, in the first instance by reserving charges and holding them over the Grievant’s head.12 When the discipline decision to be tested in arbitration must be sought out of a history of shifting recommendations including a probably unlawful one and one that is argued to have been merged backwards with the earlier event, the abuse of discretion persists without a cure. The City’s decision making on the record of this incident, even assuming the benign intentions, is a muddle. The discretion used by the City was abused. This is apparent at the very least, by having its discretion being constantly reapplied without firm direction and resolution. At the worst it is obvious from assessing a probably illegal form of discipline followed by a final decision that violated progressivity and proportionality even if just cause were present.
3) What Shall the Remedy Be?
Lacking just cause to demote for the fuel tanker incident, the remedy remains to be determined. Based on the due process violations of the merger doctrine proportionality and progressivity and on the abuse of discretion evident in the assessment of the penalty, the fuel tanker mix-up does not constitute just cause to discipline Grievant to any extent. The make whole remedy is the one most obvious. To that end the Grievant’s record with respect to the fuel tanker incident will be expunged so that any record or reference to it for any purpose shall be precluded. However, he remains demoted as a result of the ice storm incident.
In the process of protecting his interests Grievant had the assistance of the Union in the grievance procedure. However, that process did not resolve the matter correctly by the Step 5 answer on April 12. Grievant needed resort to unfair labor practice charges and a private attorney. The City’s decision was not revised for two more months. To be made whole, Grievant should be awarded his attorney fees for the efforts that caused the City to revise its decision. That is the same sort of benefit the grievance procedure is meant to produce. Such an award of fees is not in the same vein as a collateral remedy such as a discrimination or wage and hour lawsuit. It is directed at a violation of the Grievant’s grievance procedure rights to adjust the conditional termination and resulted in the very decision that was submitted to arbitration.
The award of attorney fees is not an ordinary remedy in arbitration. However, where as here there is an affirmative finding that one party acted arbitrarily, capriciously, or in bad faith (i.e. abused its discretion) the remedy is given.13 An arbitrator may award attorney fees even in the absence of contract language authorizing the award in appropriate circumstances.14 Such awards have been upheld in courts.15
There is evidence Grievant sought fees in the process but the amount was not indicated. Without an amount to state as a liquidated sum, the Arbitrator hesitates to make an open ended award of fees which could only serve to prolong the dispute. One element of fees is the analysis of the benefit achieved. Had the Union accomplished the same, or better, in April, two additional months of negotiations by counsel would not have happened. The maximum measure of the benefit of counsel would be the differential between the firefighter rate and the captain rate for the period of April 12 (the Step 5 answer) to June 7, 2005. The availability of the grievance procedure and the effects of the ice storm demotion which has been held a proper decision that was properly processed in the grievance procedure on an overlapping time scale, militate against extending the use of the differential earlier than April 12. Therefore, Grievant will be awarded a sum for his actual attorney fees in seeking adjustment of the conditional termination decision but not to exceed the amount that would have been paid to him as a captain less the amount actually paid to him as a firefighter during the period of April 12 to June 7, 2005. The calculation shall assume the same work schedule for both classifications. The fees shall not be reimbursed for services outside of that period, and the amount and timing shall be supported by documentation of billings, or payment or retention agreement or similar contemporaneous documentation. This is not a payroll payment but uses payroll as a yardstick. It is an expense reimbursement which, although the method of payment is left to the Parties, is typically made jointly to the Grievant and his counsel.
The Arbitrator finds for IAFF Local 266 and against the City of Mansfield in part, and the Arbitrator finds for the City of Mansfield and against IAFF Local 266 in part as follows:
A. The Arbitrator finds for the City of Mansfield and against IAFF Local 266 as follows:
The Grievance 05-02 is denied.
B. The Arbitrator finds for IAFF Local 266 and against the City of Mansfield as follows: The Grievance 05-01 is granted to the extent that
(1) the discipline imposed on 2/16/05 for the January 6, 2005, fuel tanker incident shall be rescinded and Grievant’s record with respect to the incident will be expunged so that any record or reference to it for any purpose shall be precluded and
(2) Grievant is awarded a sum to reimburse him for actual attorney fees but not to exceed the amount that would have been paid to him as a captain less the amount actually paid to him as a firefighter during the period of April 12 to June 7, 2005, assuming the same work schedule for both classifications, and such fees shall not be reimbursed for services outside the period of April 12 to June 7, 2005, and the amount and timing of the fees for services to be reimbursed shall be supported by documentation of billings, or payment or retention agreement or similar contemporaneous documentation.
C. Grievance 05-13 is granted in part and is denied in part to be consistent with the awards as to grievances 05-01 and 05-02 above.
D. Finding that both Parties did not prevail in part (CBA 7.5(F) Step 6), the cost of the proceeding shall each be borne by the Parties separately and the fees, expenses and compensation of the Arbitrator shall be divided equally as between them.
E. This is the final and binding settlement of all issues presented and heard in the arbitration of this matter.
1 RCA Communications, Inc., 29 LA (BNA) 567, 571 (Harris, 1961); McElroy v. Snider, (June 29, 2000), 2000 Ohio App. Lexis 2918.
2 Avco Corp., 65 LA (BNA) 1195 (1975).
3 Stockham Valves & Fittings Co., 1 LA (BNA) 160, 162 (1945).
4 In re: EG & G Mound Applied Technologies and Oil, Chemical and Atomic Workers International Union, Local 7-4200, 102 LA (BNA) 60 (Heekin, 1993).
5 In Re: City of Benton Harbor and FOP, 103 LA (BNA) 816 (Allen, 1994). In Re: City of Mansfield FOP/OLC, 105 LA (BNA) 935 (Shanker, 1995).
6 In re Ball Corporation and Aluminum, Brick and Glass Workers International Union, Local 93, 98 LA (BNA) 233 (Duff, 1991).
7 In re Wisconsin Tissue Mills and United Paperworkers International Union, Local 1279, 102 LA (BNA) 601 (Jacobs, 1994), In re USS and United Steelworkers of America, Local 1219, 107 LA (BNA) 772 (Neyland, 1996).
8 Elkouri & Elkouri, How Arbitration Works (6th Ed. 2003) p. 980.
9 A Survey of Negotiated Grievance Procedures and Arbitration in Federal Post Civil Service Reform Act Agreements (Office of Personnel Mgt., 1980 at 35-36) cited in Elkouri & Elkouri, How Arbitration Works, 6th Ed. (BNA, 2003) Ruben, Editor, at p. 229 fn. 150.
10 Rodeway Inn, 102 LA (BNA) 1003 (Goldberg, 1994) at 1013
11 Discipline and Discharge in Arbitration, (BNA, 1998), Brand, Editor, at p. 47.
12 Cf. DeVry Inst. of Tech., 87 LA 1149 (Berman, 1986).
13 Common Law of the Workplace, 2nd Ed. (BNA, 2005) St. Antoine, Editor, “Remedies in Arbitration,” §10.35.
14 Leavenworth Times, 71 LA (BNA) 473 (Bothwell, 1978).
15 Glover Bottled Glass Corp., 91 LA (BNA) 77 (Simmons, 1987) aff’d 853 F.2d 59 (2nd Cir., 1988), 129 LRRM 2041.
The following are excerpts of the provisions of the Agreement cited by the Parties. Any emphasis herein is added for ease of reference by the reader.
Section 6.1 The tenure of every employee subject to this Agreement shall be during good behavior and efficient service. No non-probationary employee shall be reprimanded, reduced in pay or position, suspended, removed or discharged except for just cause. Forms of disciplinary action are:
1) Oral Counseling;
2) Written Reprimand;
4) Reduction in pay and/or position;
Section 6.2 Incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, absence without leave, failure of good behavior, conduct unbecoming an employee, or other acts of misfeasance, malfeasance of nonfeasance shall be cause for disciplinary action.
Section 6.3 Except in instances where the employee is charged with serious misconduct, discipline will be applied in a progressive and uniform manner. Progressive discipline shall take into account the nature of the violation, the employee’s record of discipline and the employee’s record of performance and conduct. Disciplinary penalties shall be appropriate to the severity of the offense.
Article 7-Grievance Procedure
Section 7.3 All grievances must be processed at the proper step in the grievance progression to be considered at the next step. Any grievance not timely appealed to the next step of the procedure will be deemed to have been settled on the basis of the City’s answer at the last completed step. Any grievance not answered by the City within the stipulated time limits shall be considered to have been answered in the negative and may be appealed by the grievant to the next step of the grievance procedure; provided however, if the City fails to timely answer at step 4 or higher, the grievance shall be considered resolved in favor of the grievant without precedent. Any time limit set forth in the Article may be extended by mutual agreement.
Section 7.5 ....
D. Step 4-Chief of Fire
1. If the grievant is not satisfied with the Step 3 answer, the Grievance Committee shall present the grievance, the written report of the Grievance Committee, and the Step 1 and 3 answers to the Chief of Fire within seven (7) calendar days after receipt of the Step 3 answer.
2. The Chief of Fire shall hold a meeting within seven (7) calendar days following receipt of the grievance.
3. The Chief of Fire will respond to the grievant and the Grievance Committee in writing within seven (7) calendar days after this meeting.
E. Step 5-Service - Safety Director
1. If the grievant is not satisfied with the Step 4 answer, the Grievance Committee shall present the grievance, the written report of the Grievance Committee and the Step 1, 3, and 4 answers to the Service-Safety Director within seven (7) calendar days after receipt of the Step 4 answer.
2. The Service-Safety Director shall hold a meeting within fourteen (14) calendar days following receipt of the grievance.
3. The Service-Safety Director will respond to the grievant and the Grievance Committee in writing within fourteen (14) calendar days after this meeting.
F. Step 6-Arbitration....
As soon as the arbitrator has been selected, he shall proceed to schedule a hearing on the matter in dispute. The Union and the City shall be afforded a reasonable opportunity to present evidence and be heard in support of their respective positions. Each party shall bear the expense of calling its witnesses (including any lost wages) to testify in its case. The non-prevailing party shall bear the cost of the services of the arbitrator. Either party may demand that a written transcript of testimony be taken, at that party’s expense. The arbitrator shall make a decision within thirty (30) calendar days after submission of the case after such hearing. If such decision is within the authority herein conferred upon him, by this Agreement, it shall be final and binding upon the City and the Union and upon the employee or employees involved. It is agreed that the authority of the arbitrator shall be as follows:
1. The arbitrator shall have the authority to interpret this Agreement and apply it to the particular case under consideration, but shall be limited to the interpretation an application of this Agreement; and
2. The arbitrator shall have no authority to add to, strike from, or modify any of the terms of this Agreement, or to pass upon any issue excluded from arbitration by the terms hereof; and
3. The arbitrator shall have the authority to decide only the issue or issues which the parties have agreed to submit to the arbitrator as above provided.
4. The arbitrator’s decision will be final and binding upon all parties, subject to appeal to the Common Pleas Court of Richland County, Ohio, pursuant to Section §2711.05 of the O.R.C.
5. The question of arbitrability of a grievance may be raised by either party before the arbitration hearing of the grievance, on the grounds that the matter is non-arbitrable or beyond the arbitrator’s jurisdiction. If the arbitrator determines the grievance is within the purview of arbitrability, the alleged grievance will be heard on its merits before the same arbitrator.
Mansfield Fire Department Rules and Regulations
No on duty member shall be permitted to occupy beds in any of the fire stations between 0800 and 1600 hours, except in case of sickness or fire duty the night before, with permission granted by the officer in charge. No sleeping in chairs shall be allowed during the same hours, except between the hours of 1100 and 1300. All beds must be properly made by 0930 hours each day. Members, when asleep, shall not be unnecessarily disturbed.
Members who, by lack of judgment, knowledge, neglect or carelessness, cause or contribute to loss of life or damage to property, shall be held responsible for their actions.
Ohio Administrative Code §124-3-05
(A) All incidents which occurred prior to the incident for which a non-oral disciplinary action is being imposed, of which an appointing authority has knowledge and for which an employee could be disciplined, are merged into the non-oral discipline imposed by the appointing authority. Incidents occurring after the incident for which a non-oral disciplinary action is being imposed, but prior to the issuance of the non-oral disciplinary order, are not merged and may form the basis for subsequent discipline.
(1) For purposes of this rule, knowledge of an appointing authority will include knowledge of those persons with authority to impose non-oral discipline for the appointing authority.
(2) For purposes of this rule, non-oral discipline includes written reprimands and suspension orders. It does not include a written memorandum of oral counseling or written warnings.
(B) Except as provided in rules 124-3-01 and 124-9-04 of the Administrative Code, once discipline is imposed for a particular incident, that incident shall not be used as the basis for subsequent discipline.
(C) Upon written notice to the employee, an appointing authority may rescind non-oral discipline. Rescission of non-oral discipline under this rule shall not be a bar to issuing another non-oral discipline based upon the same allegations.