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In re
and
121 LA (BNA) 1624
AAA Case No.
32-390-100713-04
Harold D. Smith, Arbitrator.
Background
The Collective Bargaining Agreement (Contract) applicable
to the issues in this case is effective
The Grievant, Sergeant Michael Antonopoulos,
is a member of the supervisory unit. Antonopoulos
participated in the promotional process for lieutenant in May 2004. He is
challenging the right of another bargaining unit employee, Sergeant Michael Kirschner, to participate in the same promotional test
while on military leave, after being called up for active duty. Kirschner is a major in the United States Army Reserve,
who, at the time of the written test, was on active military duty in
The grievance was processed to arbitration and a hearing
was held on
Issue:
As stated by the Palm Beach County Sheriff’s Office
(PBSO):
Whether administration of a promotional
examination off-site to a bargaining unit member on military leave for a period
of extended active duty violates the Collective Bargaining Agreement. If so, what is the
appropriate remedy?
As stated by the Palm Beach County Police Benevolent
Association:
Was the off-site administration of the PBSO lieutenants’ promotional
examination to Sgt. Michael Kirschner in compliance
with the Parties’ Collective Bargaining Agreement and, if not, what shall be
the remedy?
The issue, as framed by both the PBSO and the PBA, involves
the basic question of whether there was a violation of the Contract by the
Employer in the off-site administration of the promotional examination for Kirschner.
Applicable
Contractual Provisions
Article 2 Recognition
The Sheriff recognizes the
PBA as the sole and exclusive bargaining agent for the bargaining unit of
employees as certified by the Public Employees Relations Commission,
Certification #1417 and #1416, with respect to the working conditions, rates of
pay and other conditions of employment for those employees of the Sheriff
working within the certified unit, to-wit;
Included
All
full-time certified and sworn law enforcement officers below the rank of
Sergeant, and all full-time certified and sworn law enforcement officers in the
ranks of Sergeant and Lieutenant.
Excluded
All other
appointees or employees, including appointees or employees of the Corrections
Division, and all managerial or confidential appointees or employees.
Article 5 Management Rights
The
PBA recognizes the right of the Sheriff to operate, manage,
and direct all affairs of his office, including the following:
B. To hire, rehire,
reinstate, promote, transfer, schedule, assign and retain employees in position
with the Sheriff’s Office.
I. The exercise of the
above-defined rights by the Sheriff shall not preclude employees or the PBA
from raising grievances should decisions on the above matters have the
practical consequences of violating the terms of this Agreement and/or
affecting any other conditions of employment.
J. The
PBA acknowledges that PBSO may make reasonable amendments, revisions,
additions, deletions and/or changes to PBSO General Orders, S.O.P.’s
Rules and Regulations and Policy Statements.
Article 13 Military
The PBSO will apply the
Military Leave Policy as stated in the PBSO
General Orders.
Article 30 Promotions
Section
1. Promotions will be made pursuant to
GO 305.0-1, except as provided below.
Section
5. There will be no make-up promotional
examinations. However, upon request and if the employee can make testing
arrangements suitable to PBSO with a state-approved police academy or an
accredited university, the PBSO will make special testing arrangements to
administer tests at the same date and time and under similar conditions to
candidates who cannot appear at the regular test site due to: 1) Sheriff’s
Office business, 2) approved bereavement leave requiring travel outside Palm
Beach County, or 3) a catastrophic health emergency involving the employee’s
family, which is limited to spouse, children, parents, and grandparents if they
reside with the employee.
Article 35 Maintenance of
Conditions
Section 1. All job benefits in effect at the time of the
execution of this agreement heretofore authorized by the Sheriff and not
specifically provided for or abridged by this Agreement shall remain in full
force and effect for the duration of this Agreement.
Section 2. The PBSO and the PBA shall meet at the request of
either party to negotiate to the extent required by law any proposed changes in
those rights and benefits not specifically covered by this Agreement, provided,
however, no changes shall be made except when a waiver exists or where the
change is negotiated or resolved in accordance with Chapter 447, Florida
Statutes.
Article 36 Grievance And Arbitration Procedure
4. The arbitrator shall not
have the power to add to, subtract from, modify or alter the terms of this
collective bargaining agreement in arriving at a decision of the issue or
issues presented, and shall confine his or her decision solely to the
interpretation or application of the agreement. The arbitrator shall not have the
authority to determine any issues not submitted.
The grievance alleges a violation of Article 30, and others
as may be related. The nature of the grievance is stated “Administration of
Lieutenant’s examination off-site (regarding Sgt. Michael Kirschner)
in violation of provisions pertaining thereto.”
Article 30 of the Contract provides that promotion will be
made pursuant to G.O. (General Order) 305.01. G.O. 305.01 is also referred to
as SOP 305.01 (Standard Operating Procedure). The PBA points out that SOP
305.01 makes no reference to how the off-site administration of promotional
testing should be handled for candidates who cannot appear at a regular test
site. However, the evidence shows that SOP 305.01 was followed in administering
off-site exams to employees on active military duty in 2002.
Grievant Antonopoulos argues that
Kirschner was provided more favorable treatment
because he was permitted to sit for his testing in his own hotel suite in
The PBSO argues that
off-site, promotional testing of employees on military leave for active duty is
required by the Contract, the Florida Public Employees Relations Act, and the
Uniform Services Employment and Reemployment Rights Act (USERRA). In its post-hearing brief, counsel for the PBSO states in
part:
First, the parties’ Agreement
requires that the agency continue existing “job benefits” that are not abridged
by the Agreement. PBSO’s Military leave policy is
such a continuing job benefit providing that employees preserve their
promotional status. Preserving promotional status requires that employees on
active military duty be permitted to participate in promotional testing so they
do not lag behind their co-workers.
Second, it would have been an
unfair labor practice to not provide off-site promotional testing in the
instant case. PBSO had offered off-site administration to active duty military
personnel before the parties negotiated the Agreement, and the Agreement did
not alter that practice. Thus, such off-site administration became the status
quo that could only have been modified by explicit agreement of the
parties.
Finally, employers covered by
USERRA, including PBSO, may not deny promotional opportunities to employees
called to active duty. Because make-up examinations are expressly prohibited
under the Agreement, the only reasonable way for the PBSO to meet this
obligation is to administer promotional testing off-site.
Summary of
Documentation and Testimony
Promotional testing and assessments result in establishment
of promotional eligibility lists. Pursuant to SOP 305.01.5.6, promotional
eligibility lists, also known as rosters, are active for two years from the
date they are established, unless they are exhausted sooner. The last two
lieutenant promotional rosters ran from
Supply us with the name and
address of your commanding officer, or his designee, who will receive the
testing materials and instructions for you.
Two employees on active duty elected to take the exam and
they did so off-site under the supervision of a proctor. One employee took the
exam at a military base in
The PBA distinguishes the 2002 exam from the 2004 exam on
the basis that Kirschner was permitted to sit for his
testing in his own hotel suite in
Transcript of witness questions and answers omitted.
* * *
Analysis and Opinion
As the moving party in this case, the
.... The general rule, followed
by most arbitrators in non-disciplinary proceedings, is that the grieving
party, typically the union, bears the initial burden of presenting sufficient
evidence to prove its contention. It is therefore usually up to the union to
demonstrate that the action taken by the management is inconsistent with some
limitation, contractual or otherwise, in the labor agreement.
Arbitrator F. M. Ingle in Combustion Engineering Co., 9 LA
(BNA) 515, explained: “The doctrine of burden of proof simply means that the
party who asserts a claim or right against another party has the burden or
responsibility of proving it.” That is true in the case at hand. In
International Minerals & Chemicals Corporation, 62-1 ARB 8284, [P. 4074],
Arbitrator Sears stated:
[“]Burden of proof[“]
really means that the party which has that burden must produce at the hearing
MORE evidence than the party which does not have that burden. It is rather rare
to find a discussion of burden of proof in the reported arbitration cases,
except in discharge or disciplinary cases. However, the Arbitrator firmly
believes that most arbitrators, at least subconsciously, are of the opinion
that in contract interpretation cases, such as this, the grieving party has the
burden of persuading the arbitrator that its position is the correct one.
Thus, although burden of proof in arbitration has less
impact than in a court of law, especially in contract interpretation cases, the
This arbitrator is mindful of the principles generally applied
when the issues involve interpretation of provisions in collective bargaining
agreements. In Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593,
597 [34 LA (BNA) 569] (1960), the Supreme Court held that, ... “[A]n arbitrator
is confined to interpretation and application of the collective bargaining
agreement; he does not sit to dispense his own brand of industrial justice. He
may of course look for guidance from many sources, yet his award is legitimate
only so long as it draws its essence from the collective bargaining agreement.”
...
The parties, in the instant case, included the Enterprise
Wheel doctrine in the Contract. Article 36, Section 4, Paragraph 4,
provides:
The arbitrator shall not have
the power to add to, subtract from, modify or alter the terms of this
collective bargaining agreement in arriving at a decision of the issue or
issues presented, and shall confine his or her decision solely to the
interpretation or application of the agreement. The arbitrator shall not have
the authority to determine any issues not submitted.
In this case, the applicable Contract was the first one
negotiated after the PBA was certified as the bargaining agent for the involved
employees. A collective bargaining agreement is a limitation on management’s
power to manage and direct the work force. In Powermatic/Houdaille,
Inc., 63 LA (BNA) 1 (Andrews, 1974), the arbitrator said:
It is now a well established
generalization that employers, except to the extent limited by contract or
statute, retain all power to manage a plant, make rules, and set working hours.
This is so even if the agreement does not list all of the rights that have been
retained by management or has no management rights
clause at all. The collective bargaining agreement operates as a limitation
upon the right of the employer to establish working conditions only to the
extent that such conditions of employment are covered by the agreement. The
pre-existing rights of the employer still continue as to all matters not
covered in the agreement. If the agreement is completely silent about a matter,
then the employer is free to make unilateral changes if such changes are not
inconsistent with the provisions of the current agreement....
.
See also, Saint Louis Symphony Society, 70 LA (BNA) 475 (Roberts,
1978) and
In Appalachian Regional Healthcare v. Local 14390, 245 F.3d
601 [166 LRRM 3011] (6th Cir. 2001), the court held that the agreement need not
include provisions permitting management action on every conceivable employment
matter; rather, on issues not discussed in the agreement, management retains
discretion, citing United Steelworkers of Am. v. Warrior & Gulf Navigation
Co., 363 U.S. 574 [34 LA (BNA) 561] (1960).
Arbitrators have consistently held that the terms of a
collective bargaining agreement are to be applied in a logical manner,
consistent with the language, intent of the parties, and with the entire
agreement. Cooper/T. Smith Stevedoring
The
Restatement (Second) of Contracts comments:
Meaning is inevitably dependent
on context. A word changes meaning when it becomes part of a sentence, the
sentence when it becomes part of a paragraph. A longer writing similarly
affects the paragraph.... Where the whole can be read to give significance to
each part, that reading is preferred....
In the arbitral domain, numerous decisions have invoked
this interpretative principle. One of the earliest stated:
The primary rule in construing a
written instrument is to determine, not alone from a single word or phrase, but
from the instrument as a whole, the true intent of the parties, and to
interpret the meaning of a questioned word, or part, with regard to the
connection in which it is used, the subject matter and its relation to all
other parts or provisions.
In the years that followed, the concept that the disputed
portions “must be read in light of the entire agreement” has received
widespread acceptance.
Typical of arbitral
thinking is the following:
Sections or portions cannot be
isolated from the rest of the agreement and given construction independently of
the purpose and agreement of the parties as evidenced by the entire
document.... The meaning of each paragraph and each sentence must be determined
in relation to the contract as a whole. Citations omitted
The authors also discuss Giving Effect to all Clauses and
Words. “It is only when no reasonable meaning can be given to a word or clause,
either from the context in which it is used or by examining the whole agreement, that it may be treated surplusage
and declared to be inoperative.” How Arbitration Works, P.
464.
The PBA urges the arbitrator to apply the rule of expressio
unius est exclusio alterius
(`The expression of one thing is the exclusion of another’) to Article 30 of
the Contract. The
In addition, reading the Contract as a whole, the Military
Leave Policy, referred to in Article 13, must be
considered along with Article 30, Section 5. Article 13, of the Contract,
provides that the PBSO will apply the Military Leave Policy as stated in the
PBSO General Orders. The policy clearly states that, “During periods of
extended active duty, Sheriff’s Office personnel shall be entitled to preserve-promotional
status-in accordance with the Uniform Services Employment and Reemployment
Rights Act of 1994 (USERRA).”
Promotional status can only be preserved if there is an
opportunity to take promotional tests. The PBA does not dispute that, prior to the
existing collective bargaining agreement, employees in
the military were permitted to take the promotional exam at the military base
where they were serving. Stelling testified that this
was in accordance with the Military Policy and SOP 305.01. The tests were
administered by proctors at the military bases.
The PBSO not only has a right to continue the Military
Policy per Article 13, of the Contract, there is merit to the PBSO’s argument that it is obligated to do so by Article 35
of the Contract, and the USERRA.
In Fink v. City of
... by intentionally discriminating against him because of his military
service insofar as they failed to offer him a make-up promotional exam
immediately upon his return from military service in 1994 or to provide him
with appropriate study materials in 1997, when he was given a make-up
promotional exam.... 129 F.Supp.2d at 513
The court held that:
In addition to requiring a restoration of employment and seniority for
an employee on leave,-USERRA also prohibits an employer from denying employment
benefits to a member of the armed services because of his military obligation. 38 U.S.C. §4311(a). Specifically,
38 U.S.C. §4311(a) provides that:
[A] person
who is a member of, applies to be a member of, performs, has performed, applies
to perform, or has an obligation to perform service
in a uniformed service shall not be denied initial
employment, reemployment, retention in employment, promotion, or any benefit of
employment by an employer on the basis of that membership, application
for-membership, performance of service, application for service, or
obligation.
... Fink missed the original date of the examination precisely because
he was a veteran, and the entire point of USERRA is to prevent veterans from
falling behind their co-workers or suffering adverse employment actions while
they are away serving their country. Therefore, the defendants were under an
obligation to give Fink his promotional exam immediately upon his return from
duty.... 129 F.Supp.2d at 521
... A policy that requires all
persons, regardless of veteran status, to take their promotional exam on a given
date and gives no opportunity for a make-up examination systematically
discriminates against veterans.... 129
F.Supp.2d at 522
Since Article 30, of
the Contract in this case, prohibits make-up promotional examinations, the only
practical way to make promotional opportunities available to active duty
employees, who cannot attend the
Regarding other arguments
presented by the PBA, the arbitrator is not convinced that Kirschner’s
test score and assessment would have been any different had he taken the exams
at an accredited university, a state-approved police academy, or at the Palm
Beach County facilities. Calkins testified
that he followed the instructions in administering the test as a proctor.
The arbitrator also rejects the claim that the PBSO
violated Florida Statutes Section 447.501(1)(a) and
(b). The arrangement for Kirschner to take the exam
off-site did not constitute direct negotiations with a bargaining unit employee
in violation of said statute.
The
Kirschner’s testimony was corroborated by Calkins’ testimony, that Kirschner was on temporary duty assignment at the location
where the test was administered. Kirschner’s required
participation in the biannual security conference justified his request for an
accommodation to take the promotional exam at his duty station.
Award
The Palm Beach County
Sheriff’s Office did not violate the Collective Bargaining Agreement in
administering the Lieutenant promotion examination
off-site to Sgt. Michael Kirschner while he was on
military leave. Therefore, the grievance is denied.