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Staffing Grievance Is Arbitrable

The Watertown Firefighters Association in New York filed a grievance contending that the City violated provisions in its labor agreement relating to minimum staffing levels for shifts and regular operations within the City of Watertown’s Fire Department. The City refused to proceed to arbitration, contending that the staffing clauses were “unenforceable job security provisions that violate public policy.” A New York court ordered the City to submit to arbitration….

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What’s The ‘Continuing Violation’ Theory?

“Limitation periods,” whether imposed by the time requirements in a grievance procedure or a statute of limitations, are generally harsh creatures. If someone wanting to file a claim lets a “limitation period” lapse, the result is almost always the dismissal of the claim. One exception to the usual notion that missing a statute of limitations means the complete loss of a claim is known as the “continuing violation” principle….

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No Need To Exhaust Grievance Procedure On Constitutional Claims

Steven Helm is a lieutenant with the Williamsport, Pennsylvania Bureau of Police, and is the President of Lodge 29 of the Fraternal Order of Police (FOP). Helm’s wife has been a prominent critic of the leadership of the Police Bureau. In 2015, Helm filed unfair labor practice charges against the City, alleging that a captain’s negative Facebook posts and other activity by the Bureau was designed to intimidate members…

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Employer’s Beliefs About Grievability No Excuse For Not Processing Grievance

New Castle County, Delaware is party to a collective bargaining agreement with Lodge 5 of the Fraternal Order of Police. On June 27, 2017, Lodge 5 filed a timely grievance on behalf of a probationary officer terminated by the County. The County responded by refusing to “recognize” the grievance and failing to schedule a Step II grievance hearing “or any other hearing associated with the officer’s dismissal.” Lodge 5…

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No More Free Tolls For New Jersey State Troopers

For many years, the New Jersey Turnpike Authority and the South Jersey Transportation Authority – independent authorities that operate the State’s major toll roads – allowed State Troopers to travel over those roads in their personal vehicles without paying tolls. As a result, troopers were able to commute to and from work without incurring that expense. Nothing in the State’s collective bargaining agreement with the State Troopers Fraternal Association…

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Captain Entitled To See Notes Taken In Disciplinary Investigation

In June 2015, the Town of Kernersville, North Carolina terminated Fire Captain Kevin Bray, who had served the Fire Department for more than 17 years. Bray’s termination stemmed from a meeting he had with Town Manager Curtis Swisher and the Town’s human resources director to discuss some of Bray’s concerns about the Fire Department. In response to Bray’s concerns, Swisher interviewed other employees and took notes during the interviews….

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Q&A

From Washington Question: Are you familiar with cases where IA investigator pre-interviews complainant for two hours before going on tape but makes no reference to the pre-interview or provides any notes on the pre-interview in the IA file? Answer: This is a practice that used to be fairly common, but by now has largely disappeared in the name of transparency of the IA process. We wouldn’t recommend it. From…

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Arbitrator, Not Court, Determines Whether Grievance Is Timely

In June 2012, the Village of Tequesta, Florida terminated Officer John Cox’s employment. A collective bargaining agreement between Cox’s union and the Village provided for termination “for just cause.” The agreement set forth a three-step grievance and arbitration procedure to be followed in the event an employee challenged his or her termination. When the Village refused to process Cox’s grievance to arbitration, he brought a lawsuit seeking to compel…

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Firefighter Promotional Grievance Held Arbitrable

The City of Lockport, New York and the Lockport Professional Firefighters Association are parties to a collective bargaining agreement that defines a grievance as including “all claimed violations of any contract existing between the City and the employees covered by” the CBA. After the City’s Civil Service Commission created a new Municipal Training Officer position within the Fire Department, the City and the Association negotiated the terms and conditions…

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Disciplinary Transfer Held Subject To Grievance Procedure

Sergeant Charles Jenkins works for the Las Vegas Metropolitan Police Department as a property crimes supervisor. In February 2011, after investigating an internal complaint against him, the Department issued Jenkins a written reprimand for violating its harassment and discrimination policy. The reprimand, which Jenkins signed, did not mention a transfer to a new assignment. Nonetheless, the Department transferred Jenkins on the same day he signed the reprimand. The transfer…

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Federal Appeals Court Upholds Verdict Against Fire Union

Anthony Booth and Jerry Brown were emergency services workers for the Emergency Services Department in Pasco County, Florida, and were members of Local 4420 of the International Association of Fire Fighters. Both worked in the Department’s Station 14. In June 2007, Booth filed a Department grievance against the captain who supervised the station. The captain’s boss had warned Booth that he would be transferred if he filed a grievance,…

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Retirees Not ‘Members’ For Purposes Of Grievance Procedure

Philip Buff is a retired firefighter who worked for the Village of Manlius, New York. Buff sued the Village, seeking an order compelling to pay 80% of Buff’s health insurance plan premiums. Buff alleged that the Village paid that percentage when he was employed, pursuant to the terms of a collective bargaining agreement between the Village and the union representing Village firefighters. A trial court dismissed Buff’s complaint on…

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Firefighters’ Past Practice Grievance Subject To Arbitration

The collective bargaining agreement between the City of Orange, Texas and the Orange Association of Firefighters contains a grievance procedure with fairly standard wording. The contract defines as a grievance: “Any controversy between the City and the Union or any employee concerning the interpretation, enforcement, or application of any provision of this Agreement, or concerning any of the terms or conditions of employment contained in this Agreement.” When the…

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Union Entitled To Sick Leave Records Of Supervisors

Part of the obligation to collectively bargain in good faith is the obligation to exchange information about mandatory subjects of bargaining. This obligation frequently arises in a grievance arbitration setting, where either the employer or the union is seeking records in the other’s possession. A slight twist on the usual case occurred in Newark, New Jersey, where Lodge 12 of the Fraternal Order of Police (FOP) was processing four…

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The Importance Of How A Grievance Procedure Is Worded

Often, the parties to collective bargaining agreements pay little attention to how a grievance procedure is worded, simply renewing the old version of the grievance procedure each time a new contract is negotiated. A recent case from the Illinois Court of Appeals illustrates why the specific wording of a grievance procedure can be critical in how a contract will be interpreted. The case involved William Kovarik, a police officer…

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Los Angeles Required To Arbitrate Grievances Challenging Furloughs

After declaring a fiscal emergency, the City of Los Angeles adopted a mandatory furlough program for its civilian employees. Many employees represented by unions filed grievances against the City, arguing that the furloughs violated memoranda of understanding (California’s equivalent of a collective bargaining agreement) governing the terms and conditions of their employment. When their grievances were denied, these employees requested arbitration, and when the City refused to arbitrate, their…

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Non-Member Fails To Follow Grievance Procedure, Loses Termination Case

David Luginbuhl was a full-time police officer for the Gallup, New Mexico Police Department from October 27, 2007, until his termination on June 8, 2011. The City has recognized the Gallup Police Officer’s Association as the exclusive collective bargaining representative for officers and sergeants. Luginbuhl chose not to join the Association, did not pay dues, and never sought the assistance of the Association. The contract between the Association and…

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Without Agreement By The Parties, Arbitrator May Have No Right To ‘Retain Jurisdiction’ Over A Case

A common feature of grievance arbitrations is that, after issuing an award, an arbitrator will retain jurisdiction over the case to resolve disputes about the remedy. What is not always appreciated, however, is that depending upon how the underlying collective bargaining agreement is written, an arbitrator may have no inherent right to retain jurisdiction, but rather can only do so if the parties agree to it. A case recently…

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Grievance Over Shop Stewards Not Preempted By Bill Of Rights

Montgomery County, Maryland and Lodge 35 of the Fraternal Order of Police (FOP) are parties to a collective bargaining agreement. On August 11, 2009, the FOP filed a grievance with an arbitrator pursuant to its collective bargaining agreement alleging that the County violated the Agreement when it unilaterally terminated a 20-year old practice of allowing shop stewards in training to attend disciplinary interrogations conducted by the Police Department’s Internal…

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Corrections Officers Required To Arbitrate FLSA Claim

Corrections officers working for Butler County, Pennsylvania are covered by a collective bargaining agreement between the County and District Council 84 of the American Federation of State, County and Municipal Employees. The grievance procedure of the contract calls for the arbitration of “all disputes relating to the application or interpretation of the CBA and/or any dispute concerning the wages, hours, and working conditions of employees covered by this CBA….

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City Must Arbitrate Grievance Over Retirement Benefits

The City of Portland, Oregon has had a pension fund for police and fire employees for many years. In 2006, following public criticism of the Fund and its board, the City’s voters approved a ballot measure that, among other things, would restructure the Fund’s board and require new employees to become members of the statewide PERS system. After the election, the new Fund board determined that the Fund’s administrator…

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Court Orders Arbitration Of 15 Grievances

The Communications Workers of America represents corrections officers working for the Lexington–Fayette Urban County Government. When the Employer refused to process 15 separate grievances to arbitration, the CWA sued, seeking an order forcing the employer to arbitrate. The Kentucky Court of Appeals sided with CWA and ordered arbitration. The Court found that “it has been established that where the contract contains an arbitration clause, there is a presumption of…

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Arbitrator, Not Courts, Should Decide Whether MOU Settled Grievance

Dale England was a deputy sheriff in Chelan County, Washington and a member of the Chelan County Deputy Sheriff’s Association. England made a prank call to what he thought was a friend. Unfortunately for him, he misdialed his friend’s number and left a threatening message on a stranger’s answering machine. The recipient called police, who reported the call to the Department. Sheriff Mike Harum ultimately fired England. The Association…

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Union Must Label Grievance As Class Action To Receive Class-Wide Remedy

The Fraternal Order of Police (FOP) filed a grievance solely on behalf of Andrew Markowitz, a police officer with the City of Miami. The grievance claimed that the City was required to provide but denied light-duty work to Markowitz as he recovered from an off-duty injury. The FOP, on behalf of Markowitz, went through each step of the grievance procedure as set forth in the collective bargaining agreement and…

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Employer Can Assign Officers On Light Duty To Different Schedule

The collective bargaining agreement between the Kings Point Police Benevolent Association and the Village of Kings Point, New York has an “hours of work” clause that mandates a 12-hour rotating shift as the “sole schedule” for members of the bargaining unit. When a police officer who suffered a work-related injury that disabled him for more than three years returned to work, the Village assigned him to a four-day, eight-hour…

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