If Not Raised At Arbitration, Employer Waives Right To Object To Group Nature Of Grievance

On February 1, 2002, the Fostoria, Ohio Police Department laid off all three full-time members of its dispatcher unit in compliance with the City’s mandate that each department reduce its budget by 20 percent to avoid an impending $1.5 million budget shortfall. Because of those layoffs, police officers began to perform all dispatching duties.

One of the three laid-off dispatchers filed two grievances under the collective bargaining agreement between the City and the Ohio Patrolman’s Benevolent Association (OPBA). The dispatcher asserted that patrol officers could not perform dispatch duties for more than four hours per shift under a contract clause that read: “In the event of a reduction in force from the police department due to lack of work or lack of funds, patrol officers may be assigned to dispatcher duties no more than four (4) hours per shift except in case of an emergency.”

An arbitrator ordered the City to reinstate all three dispatchers and to reimburse them for their losses. The Arbitrator drew several conclusions. First, responding to the City’s position that its fiscal crisis constituted an “emergency,” the Arbitrator found that the parties had not expressed any intent to define “emergency” to include financial difficulties. After reviewing the operative language, the Arbitrator declared: “Any reasonable interpretation of ‘lack of funds’ must include a fiscal crisis of the type” at issue here. The Arbitrator decided that the contract therefore specifically prohibited patrol officers from performing dispatcher duties for more than four hours per shift due to a fiscal emergency.

The City challenged the Arbitrator’s decision through the court system. As the appeals progressed, the City’s appeals focused on its argument that the Arbitrator inappropriately treated the grievance as a “group grievance,” and had no power to award any relief to other than the dispatcher who filed the grievance.

The Ohio Supreme Court rejected the City’s arguments, faulting the City for not raising the “group grievance” argument before the Arbitrator. As the Court analyzed it, “the City, however, never addressed the issue of whether the collective bargaining agreement permitted the parties to arbitrate a group or class grievance during the arbitration proceedings. Instead, the sole issue presented to the Arbitrator concerned whether the City had violated the agreement by using patrol officers to perform the duties of all three dispatchers. Based on the unique facts of this case, this record demonstrates that the parties implicitly authorized the Arbitrator to resolve this case as a class grievance.

“The record demonstrates that the City never moved to separate individual cases or to dismiss any pending grievance; nor does the record reflect that the City at any time objected to the OPBA presenting the grievances on behalf of all three dispatchers in one arbitration proceeding. Moreover, the City never asserted during the arbitration proceeding that the OPBA or the dispatcher presented irrelevant evidence with respect to the other two dispatchers.

“A review of the record demonstrates that the parties treated this matter as a class grievance. For example, in the ‘Remedy Desired’ section of the grievance forms, the relief sought was to ‘return dispatchers and make them whole for all lost wages and benefits.’ At no time did the City ever make any motion to limit evidence or dismiss any claim; instead, only on appeal before the Common Pleas Court did the issue regarding whether the collective bargaining agreement permitted the parties to arbitrate a class grievance arise.”

The Court concluded that because the City failed to present the “group grievance” issue to the Arbitrator, the City waived its right to object to the scope of the arbitration.

City of Fostoria v. Ohio Patrolmen’s Benevolent Association, 833 N.E.2d 720 (Ohio 2005).

This article appears in the November 2005 issue