Q & A

From Colorado

Question: We have a member of our union that will be filing a grievance and it will likely go to arbitration. He is disputing the degree of discipline he received for allegations of creating a hostile work environment and sexual harassment. Management has given us some “friendly” advice to make sure this employee knows what he is getting himself into because allegations and evidence originally left out of the initial investigation could come to light and the arbitrator could implement even harsher punishment, likely termination, if he/she saw fit.

Our position is that the only allegations and evidence that can be examined in the grievance/arbitration process is that which initiated the original write up and discipline. If it wasn’t relevant to introduce initially, it’s not relevant now. And secondly, we believe the arbitrator cannot implement harsher discipline but only uphold or overrule the disputed decision. Who is right?

Answer: Unless there’s something totally unusual about your arbitration clause, you’re right and the employer is wrong. Arbitrators only decide the merits of the particular dispute tendered to them. In your case, that dispute would be whether the discipline meted out by the employer met the requirements in the collective bargaining agreement for valid discipline. An arbitrator could answer that question in three ways: Uphold the discipline, reverse the discipline completely, or uphold the conclusion of culpability but reduce the penalty. We’ve never heard of an arbitrator increasing the penalty given to the employee, and strongly suspect that an arbitrator wouldn’t have the jurisdiction to do so.

From Georgia

Question: How long should a law enforcement agency maintain Use of Force forms?

Answer: The answer to your question will likely come from two sources. First, your state likely has a public records law, which requires that public documents be maintained for specified periods of time. Second, the attorneys who represent your agency in civil liability lawsuits likely have an opinion on what would be the best records retention policy. We’d suggest that you check with them.

From California

Question: We are in the first year of a four-year contract and are experiencing a problem with attrition of senior officers. The City is proposing to add compensation to our existing contract, above and beyond their contractual obligations, in hopes of reducing this attrition. The City Attorney has rendered an opinion that in order to modify the contract in any manner negotiations must occur, thereby requiring the contract to be reopened. Can the employer add to an existing contract without formal negotiation as long as they meet their contractual obligations?

Answer: Normally, any change in a collective bargaining agreement (or, as they’re called in California, memoranda of understanding) must be accomplished through bargaining. The bargaining can be limited in scope to whatever the parties agree – in your case, it would be permissible to simply reopen the contract on the single issue of wages. Also, the bargaining can be quite truncated, and need not even involve an actual meeting so long as both sides agree. However, whatever ratification process is used by both sides must generally be followed when the agreement is finally reached.

The article appears in our April 2007 issue.