On January 6, 2010, POAM and its affiliate the Highland Park Police Officers Association filed a grievance to uphold contract language requiring shifts to be led by a shift supervisor. An arbitration hearing was held on May 18, 2010.
TPOAM/POAM Business Agent Kevin Loftis argued that the City unilaterally violated the contract by failing to have lieutenants and sergeants lead a shift. The contract clearly stated that “a lieutenant or sergeant shall be in charge of each shift.” Loftis agreed that the Management Rights clause of the contract gives the Employer certain rights, except as otherwise modified by the contract. The contract modified the employer’s rights by expressly requiring lieutenants and sergeants to lead a shift. The settlement requested by the Union was that the sergeant or lieutenant who should have been offered the overtime assignment receive overtime pay at the rate of time and one-half for all hours a non-member of the bargaining unit worked as the shift supervisor. The City answered the grievance asserting that lieutenants and sergeants would not agree to accept comp time in lieu of overtime. Highland Park POA President, James Lant, testified the contract provides that only a lieutenant or sergeant shall lead a shift. He maintained that if a sergeant or lieutenant is unavailable, a lieutenant or sergeant not on duty should have been offered to lead the shift. If there is no one available, Lant stated that the lieutenant or sergeant on the next shift can be forced to lead the shift, or the lieutenant or sergeant on the preceding shift can be forced to stay over. Sergeant Lant also contended that on the dates listed in the grievance, none of the full-time officers were offered overtime. He further testified that two sergeants did not refuse to stay over to lead a shift and that he personally never refused to work overtime.
Highland Park Police Chief, Theodore G. Cadwell, II testified that overtime within the City had been severely limited by Mayor Hubert Yopp’s Executive Order No. 2 which stated; “I hereby order that all overtime for the police and fire departments must first be approved by the Mayor’s office. It is further ordered that any overtime that has not been approved by the Mayor’s office shall not be paid.” Chief Cadwell also testified to the financial emergency that exists in the City. He indicated that some lieutenants and sergeants agreed to work for comp time in lieu of paid overtime. Cadwell also testified that the dates detailed in the Union’s grievance represented situations where comp time was offered to command officers and that they refused it.
In his argument before Arbitrator Mark Glazer, TPOAM/POAM Business Agent Kevin Loftis maintained that the Financial Emergency Manager cannot override the requirements of the collective bargaining agreement under the Public Employees Relation Act (PERA). There were no discussions with the Union to amend the requirements of the contract. The City emphasized that it was $600,000 over budget when the Mayor issued his overtime moratorium, and his stipulation constituted the exercise of a management right. Chief Cadwell also reiterated that comp time was offered to command officers and they refused it.
Arbitrator Mark Glazer, in his opinion, held that when the collective bargaining agreement stated that a lieutenant or sergeant shall be in charge of each shift, the word “shall” meant that the requirement is mandatory. Arbitrator Glazer also stated that there is no exception in the contract based on the financial problems of the City. He also held that the Management Rights clause did not supersede the contract language because the Management Rights clause was limited where the rights of the employer are modified by the contract.
Arbitrator Glazer noted that the CBA makes it clear that an arbitrator cannot ignore the clear meaning of Article 5 stating that “the Arbitrator shall have no power or authority to alter, amend, add to or subtract from the terms of this agreement, nor to make any recommendation with respect thereto. The Arbitrator shall be restricted to a strict interpretation of the specific terms of the section of the agreement, which is alleged to have been violated.”
In his decision, Glazer offered sound advice as to why he couldn’t award 100% of the settlement requested by the Union. “I am persuaded that the lieutenants and sergeants at issue should have accepted the assignment when they were asked, and then grieved for overtime in lieu of the comp time, if they felt they were being forced to take comp time in lieu of overtime. Because these officers did not work first and then grieve for overtime, it would be inappropriate to compensate them for the straight time that they would have received, had they accepted the assignment and then grieved. However, the lieutenants and sergeants are entitled to the overtime portion of their pay that they lost by having auxiliaries work in their place. Therefore, the affected officers who could have worked on a comp time basis under protest should receive the overtime portion of their lost compensation, or .5 hours of compensation for each hour at issue.”
TPOAM/POAM’s Kevin Loftis and POA President James Lant were pleased with the decision and are hopeful that Highland Park can solve some of its economic woes. “We have worked, and will continue to work with the City on some of its revenue problems,” said Loftis. “But a violation of our contract to achieve those goals cannot be allowed.”