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City
of Margate
and
FMCS
Case No. 01/09602
40 (1952)
Govt. Employee Relations Rep. (BNA) 308
December
10, 2001
Robert B. Hoffman, Arbitrator
The parties agree that the arbitration initially concerns the arbitrability of the grievance. The City of Margate (“City” or “management”) maintains that the grievance filed by the Fraternal Order of Police (“FOP” or “Union”) contains a request for arbitration that is untimely by over one year. FOP contends that an agreement extended the grievance until the completion of the grievant's criminal action and that it timely filed for arbitration at that time. The City responds that no agreement exists; the document purporting to be an agreement was not produced by the Union until after the criminal trial and is not an agreement. At issue is whether the City has properly shown that the arbitration request is untimely.
On August 26, 1999 the grievant,
a police officer for the City, was relieved of duty with pay following a charge
that he used excessive force on August 20, 1999. On November 21, 1999 the State
Attorney's office charged the grievant with one count of misdemeanor battery
and on December 4, 1999, the City suspended the grievant without pay. The FOP
in-house representative, Karen Crici, filed a grievance relating to this
suspension on December 9, 1999. The Chief of Police denied the grievance on
December 21 and the City Manager denied it on December 18. No demand for
arbitration was made.
After
the City had completed its investigation, the grievant was terminated on
January 18, 2000 for violating City rules and regulations involving the
incident of August 20, 1999. Representative Crici then filed a grievance over
the termination that is the subject of this arbitration. The City denied it on
January 27. On this same date Union representative Puleo and Chief of Police
Blough had a telephone conversation about the termination grievance. Each of
them testified to a different version. The Chief recalled the conversation as
follows:
He
said, I can't believe you're going to terminate this guy. I said we are. He
said, well I'll deal with this after the trial is over. And I told him, do what
you have to do.
Representative Puleo related that the conversation was “rather
lengthy.” He testified:
I told him that A__ [the
grievant] was ... pending criminal investigation, and I had spoken to his
criminal attorney, and it would be against his best interest to have him come
in and proceed with the grievance procedure because he would have to give
testimony regarding his criminal case. The other reason was that had A__been
convicted of the charges that he was alleged to have committed, most likely the
matter would not go to arbitration. I explained to him that the FOP and the
City would both benefit by putting this case aside until his criminal case was
over, that had we gone to arbitration and he was convicted, it would be a waste
of money on both camps.
The
following day, January 28, 2000, the City Manager denied the grievance. The
City maintains that it failed to receive a request for arbitration within the
five days required by the collective bargaining agreement (“CBA”) after this
step. Its position is that no communication about this grievance was received
until alter the criminal trial, almost one year later. The Union contends that
as a result of the January 27 conversation, Representative Puleo sent a letter
to the Chief about holding the grievance in abeyance (see infra).
On January 11, 2001 a jury in
Broward County found the grievant not guilty. The grievant's private
investigator obtained a certified disposition of the case on February 6, 2001,
which he provided to the City along with a letter requesting certain records.
On February 10, 2001 Union representative Ayers wrote the Chief and requested a
meeting. About this same time Chief Blough told Representative Crici that the
Union had abandoned the grievance by not timely filing for arbitration. Crici
acknowledged this conversation and related that she then passed this
information to Union Representative Puleo. A meeting was arranged for February
21, but neither Ayers nor any Union representative appeared.
Representatives Puleo and Ayers and the grievant met with Chief Blough
on March 22, 2001. The Chief testified that Puleo asked for the grievant's job
back in light of the not guilty finding. The Chief told him that the Union had “dropped the ball,”
according to the CBA the grievance was abandoned. Puleo claimed that had spoken
to the Chief before; there would be no action until the criminal trial was
over. The Chief denied that this was an “accurate statement. ”Puleo raised his
voice and stated that this was a lie; he “thought” he had sent a letter to the
Chief. The Chief stated he did not receive a letter. Puleo told the Chief he
would go home and find the letter. After the meeting the Chief approached Puleo
in the parking lot; he was upset with being called a liar. Puleo offered a “deal”
and asked the Chief to talk to the City Manager. On April 4, 2001, Puleo faxed
to the City a copy of a letter he signed dated February 3, 2000 to the Chief.
Per our telephone conversation,
the grievance on Officer A__ will be postponed until his criminal case has
ended.
Thank you for your cooperation in this
matter.
The Chief testified that he had
never seen this letter before receiving it on April 4, 2001. Puleo testified
that this was not a copy of the original letter; lightening destroyed his
computer and he had to recreate it on his son's computer. On April 17,
2001 the City received a demand to arbitrate. The parties agreed to arbitrate
the issue of timeliness only.
Article
17
Step 4:
... At all times, the procedure will be initiated at the grievant's appropriate
rank. The time limits set forth may be waived only by mutual agreement in
writing between the parties.
Step 5:
If the grievance has not been satisfactorily resolved in Step 4, the FOP
Representative shall present a written appeal to the City Manager within ten
(10) working days, after the Chief's response is due. The City Manager shall
respond, in writing, within ten (10) working days to the FOP Representative.
Arbitration Referral:
A. If
the employee grievance is not resolved at Step 5, the FOP shall, within five
(5) working days, submit a request for arbitration to the City Manager.
Time
Limits on grievance and arbitration procedures.
All
time limits on the grievance and arbitration procedures shall be strictly
adhered to unless extended by the parties in writing. Any grievance brought by
the Union or an employee which does not meet the time limits specifically shall
be deemed conclusively abandoned. Any time limit not met by management shall
automatically advance to the next step.
Any
grievance which is not initiated on a timely basis, as indicated herein, shall
be deemed conclusively abandoned.
1. The
City
The City maintains that the
Union never demanded arbitration within five working days; never had an
agreement by the parties in writing to waive the strict adherence to the above
time limitations of the collective bargaining agreement to demand arbitration;
did not even adhere to the waiver agreement that the claim was made. Time
limitations by the contract between the parties are to be strictly adhered to.
This language is contained in Article 17 in at least three places—page 17-2,
first full paragraph, page 17-4, next to last paragraph and the last paragraph.
The CBA provides specifically that a grievance or demand for arbitration by the
FOP that does not meet time limitations as outlined in Article 17 is to be
deemed conclusively abandoned. There was no evidence that the parties had
previously ignored the preceding language of the contract. Counsel for the FOP
argues that the grievant would not get his chance to arbitrate on the merits
and thus this would be an unfair and unjust result. However, an arbitrator does
not sit as a chancellor in equity. Where there are explicit and forceful time
limitations and no evidence of dealings by the parties to ignore same, the
contract between the parties cannot be ignored. See Painesville Township (Ohio)
Local Schools, 108 LA 333 (1997).
2. The
Union
The
City has to show by clear and convincing evidence when doubts about time limits
are at issue. Arbitrators and the courts favor a heating on the merits. It is
appropriate to thus afford the grievant the benefit of the doubt when there is
uncertainty. The grievance should be resolved on its merits. There are also
exceptions to strict compliance with contractual time limits. By asserting this
position the grievant does not abandon its primary argument that the parties
agreed to hold the grievance in abeyance pending the outcome of criminal
charges. Although the CBA requires an agreement in writing, it is clear that
the parties' actions may produce a waiver without writing. See Elkouri and
Elkouri, How Arbitration Works 5 Ed. at 277-78. The conduct here is when Chief
Blough failed to inform FOP of his contention that FOP had abandoned the
grievance before March 22, 2001, especially when representative Ayers requested
a meeting to discuss the termination after the criminal charges were completed.
The Elkouris also refer to a reasonable excuse being a “good faith mistake” or
a “difference of opinion.” Even using the Chief's version of his conversation
with Puleo, there is a sufficient basis to find a difference of opinion and/or
a good faith mistake by the parties.
This grievance is analogous to
Ohmer Corp., 5 LA (BNA) 279 (1946), where the grievant was unable to pursue his
grievance because he was in the armed forces. Here the grievant had criminal charges
pending. He was confronted with either strictly adhering to the CBA time limits
or waiving his Fifth Amendment right against self-incrimination. This was also
a situation not of “his own choosing,”as the grievant in Ohmer. The grievant
here was in a “Catch 22” situation. If he testified in the arbitration before
his criminal trial he would have to waive his right not to testify at the
criminal trial; he would have provided the State Attorney with discovery and it
was “not from his own making.” If he exercised his constitutional right not to
testify at arbitration, he would not have been able to adequately defend
himself. Thus, when considering the balancing of equities and prejudice to the
parties, any delay in presenting the merits was not so material as to prejudice
the City's case. It would be more unfair to deny this grievance on a procedural
defect than it would be to hinder the City by allowing the dispute to be
addressed on the merits.
Moreover, the grievance was timely
pursed after the Clerk of the Court certified the grievant's judgment of
acquittal, as per the agreement of the parties. Even though the “not guilty”
verdict was returned a month earlier, the Union properly waited for the
certification. The FOP waited for a response from the meeting with the
Chief and received none. It then requested a list of arbitrators from the FMCS.
This chain of events shows that the Union did timely pursue the grievance after
the judgment of acquittal was certified. It was the City that delayed the
meeting until March 2001 and then never responded.
E.
Discussion and Opinion
There is no dispute that the
Union did not file a written request for arbitration within five days after the
City Manager's denial on January 28, 2000 at step 5, as required by Section
17-2 of the CBA. The arbitration request was not made until April 17, 2001,
some 15 months later. On its face the City has shown that there has been a
failure by the Union to abide by this critical time limit. The burden then
shifts to the Union to establish the reason for this 15-month delay and whether
it is sufficient to satisfy the CBA.
The
Union first contends that there was an agreement in writing between the parties
to waive the time limit to arbitration. The CBA is explicit that these time
limits must be “strictly” followed. It is also unmistakably clear that the
parties must first agree to any change in the time limits and then have this
understanding in writing. Section 17-2 allows for the parties to waive or
extend the time limits. In the step 4 provision of 17-2 there is reference to
the time limits being “... waived only by mutual agreement in writing between
the parties.” At the end of Section 17-4 there is reference to “all time limits
on the grievance and arbitration procedures shall be strictly adhered to unless
extended by the parties in writing.”Failure to do so means that the grievance
“shall be deemed conclusively abandoned.”
These
are strong words negotiated and agreed to jointly by these parties. They leave
no room for doubt. Time limits that “shall be strictly adhered to” are tough
words. They are firm and unbending. Just as uncompromising are the words the
parties used in the event the limits are not followed. It is not merely that the
grievance is “abandoned,” it is “conclusively abandoned.” The use of the word
“conclusively”unquestionably shows that the parties intended this abandonment
to be final or irrefutable. It leaves no room for any other time frame.
Of
course time limits cannot always been followed. The parties recognized in their
CBA that if this does occur an agreement would be required to override the
contractual limits. (Sections 17-2 and 17-2—an agreement between them that must
be in writing.) Placing an agreement in writing is an obvious effort to avoid
disputes over whether an agreement was made and if so, what it contained. It is
precisely the same concern that led to this procedural dispute.
The CBA
refers to an agreement that is “extended by the parties.” This means both
parties must reach a mutual understanding. It does not mean that one party may
on its own extend the limits merely by saying so and writing a letter. The
agreement does not allow for a unilateral statement of extension. The
arbitrator is most familiar with this type of provision from other arbitration
panels. When other parties administer this provision, both parties sign-off on
an extension of time. There is no dispute because the parties have each signed
the agreement to extend; they complied with the letter of the contract. Here,
where the substance of the telephone conversation between the Chief and
representative Puleo, as well as the letter itself, are disputed, the absence
of a signature from one party places the burden on the other to establish an
agreement was made.
Although the Chief and Representative Puleo have somewhat different
versions of this critical conversation, this much is undisputed—Puleo was
concerned that the grievant was being terminated before his criminal trial. He
likely expressed some of the pitfalls an employee faces when he loses his job
and is being charged with criminal conduct. But the issue is whether Puleo
simply expressed this concern or whether he expressed it and then reached an
agreement with the Chief to extend the time for the arbitration.1
The
grievant's Filth Amendment rights and concerns over testifying in a civil
matter with his criminal trial pending are obvious. The City's position also
makes sense. It had already decided to remove the suspension and terminate. To
delay the grievance for a long period pending the trial would be tantamount to
going back to the suspension. Thus, the logic of the respective positions does
not help in resolving whether an agreement did or did not result.
What
does help considerably is a close examination of the testimony about the
January 27 conversation and the purported February 3, 2000 letter. In comparing
their testimony about the conversation it is quite evident that neither the
Chief nor Puleo refer to any agreement. Puleo told the Chief that it would not be in the
grievant's best interest to testify because of the pending criminal case and
that both parties would benefit. This is a statement. It is not an agreement.
It is nothing more than a unilateral statement by Puleo of his position.
Nowhere in this testimony does Puleo state that the Chief agreed with him or
that they had any type of understanding. Puleo makes no request to postpone, no
request for any sort of extension until the criminal trial is over, no request
that the City revert to a suspension and absolutely no reference to Puleo
confirming any of this conversation in writing. His version comes across simply
as someone who is expounding on why it was unfair to terminate the grievant at this
juncture. Puleo never mentions an arbitration, only that it is wrong to proceed
with the grievance procedure. In that event, he had an obligation under Step 4
to place an agreement in writing prior to step 5 to confirm that there was an
understanding not to proceed to the next step. The City Manager refers to no
such agreement made with the Chief in his denial.
Puleo testified that not only
did he have an agreement with the Chief, he sent him a letter in February 2000
confirming it, within five days alter receiving the step 5 answer.2 The City denies seeing any letter about an extension,
except the one it finally received in April 2001. There is no evidence from the
Union that it mailed the letter, no return receipt or other documentation
showing it was mailed and received. The Union maintains that Puleo simply
mailed it by regular U. S. Mail and it should not be held to prove that it was
mailed and received.
The CBA
requirement for a writing of the agreement to extend a grievance strongly
suggests that proof of the writing and its receipt are necessary to establish
the waiver or extension. It follows that the party relying on the waiver needs
proof that one existed. Proof of receipt of such a critical document requires
more than simply producing a copy of a letter when the other party denies
receipt. The contractual requirement for an agreement, as seen above, would
certainly be evidenced if both parties signed-off on a letter. Such signatures
would demonstrate receipt of the letter and the agreement. Only Puleo signed
this letter. Without both parties'signatures, the only other documentary proof
of receipt would be a return receipt. Considering the importance of this
extension agreement on the life of this grievance, it would be incumbent on the
party relying on the agreement to make certain that it is well documented.
The
absence of documentary proof could have been overcome by testimony from others
who received it. No other City employee received the letter and no Union
official testified that they even received a copy in February. It is most
telling that the letter shows no copies to anyone. A letter of this
significance surely calls for others to be aware of the agreement. The grievant
himself should have been notified, and as seen the City Manager was actually
the person who was authorized to make agreements by the City Charter. Yet, he
was not copied in on the letter or sent the letter as the primary contact at
the City.3 The record evidence
fails to sufficiently establish that this letter existed in February 2000, or
even if it could be found to exist, that it was then sent by Puleo and received
by the City.4
Apart
from the receipt problems, there is much concern about the contents of the
letter. On its face the letter fails to state that the parties agreed to an
extension. As with Puleo's version of the telephone conversation, it is mostly
a bald statement that the grievance “will be postponed . ...” To state that it
is “per our telephone conversation” merely refers to Puleo's version that
contains no agreement by the City. It falls far short of being a convincing
document that complies with the CBA's need to have a written agreement of the
parties.5
The
Union contends that the Chief maintained silence about the City's position until
the parties finally met in March 2001. The argument is that the Chief owed some
sort of duty to notify the Union that the grievance was abandoned and otherwise
it can be presumed that the extension had been agreed to or that the City
waived the time limits. The Union could point to no authority showing that the
Chief has any obligation to inform the Union that they failed to agree to an
extension.
The
undisputed sequence of events after the criminal trial does not establish any
type of waiver or even an agreement to extend. In February 2001 Chief Blough
told the Union's Labor Chairperson, Representative Crici, who had filed the
grievance, that the Union failed to abide by the time limits for arbitration.
Crici testified that she actually passed this information on to Puleo at that
time. Given this crucial information, it would seem reasonable that an attempt
would be made to quickly demonstrate to the Chief that an agreement existed by
showing him the Puleo letter. It seemed as if the meeting on February 21 would
be such an opportunity. But then no one from the Union showed up at the
meeting. The Chief then had to phone Ayers and find out why the Union failed to
meet with him. Ayers told him that he did not have the file. It would take
another month for the parties to meet. Then, on March 22, the Chief reiterated
the City position that the Union had not timely filed. For the first time the
Union claimed a letter agreement existed. But Puleo failed to produce the
letter, even though Crici admits to advising him of the City position one month
earlier. Puleo would wait almost two weeks more to finally produce this
letter.
It is
evident that the Chief's mindset was not that the City was agreeing to meet
because it was waiving the time limits. To the contrary the Chief was adamant
to Crici in February and Ayers and Puleo in March that the Union had “dropped
the ball” on the grievance and the City's position remained firm. Any notion
that the parking lot incident whereby the Union asked the Chief to take “its
deal” back to the City manager constitutes waiver of the time limit is simply
misplaced. Offers to settle are not construed as waivers. Here the Chief made
no settlement offer other than respecting the Union's offer and stating he
would direct it to the proper City official. This is not a waiver.
The
actions of the representatives after the trial are further evidence that no
agreement existed to extend the time limits. Puleo waited almost two months to
produce this letter from the time Crici told him about the City's position.
This is not the action of someone who had a written agreement. If an agreement
existed it is reasonable to conclude that Puleo and Ayers would have been at
the meeting they set for February 21 armed with the letter instead of failing
to even notify the City that they would not attend. If an agreement existed it
is also reasonable to conclude that Puleo would have at least had the letter by
the time of the March 22 meeting. To wait another two weeks to finally produce
it strains credibility. To wait from February to April to finally uncover this
document is asking the arbitrator to engage in a long stretch of the
imagination as to what is plausible.
The
Union contends that where there is doubt about the agreement, or a reasonable
explanation for the failure to timely file, or a reasonable mistake has been
made, or a difference of opinion the case should be heard on the merits. The
arbitrator would normally prefer to hear cases on the merits and favors such an
approach—but not where the CBA strongly favors the enforcement of time limits.
To make an award that has no basis in the contract, places it in risk of being
set aside.
The
arbitrator has not found that there is doubt about the agreement. This record
fails to establish doubt and instead is convincing and clear that no agreement
existed to extend the grievance in abeyance. In addition, the Union argument
that a mistake was made by Puleo in not obtaining an agreement and the
arbitrator should overlook it and order a hearing on the merits is
unconvincing. A simple reading of Article 17.2 was all that was needed. This is
not a complex provision. In fact it is basic grievance and arbitration
practice. It is not a mistake that is reasonable to make.6
Puleo admitted that he was unfamiliar with the CBA. On the other hand his
testimony does not suggest that he was making a mistake. He appeared most
adamant that he had an agreement with the Chief. This being so he had a
contractual obligation to place that agreement in writing and make certain that
it was sent and received. As shown, he did none of this.
It is
also noteworthy that Puleo was not the only Union representative concerned with
this grievance. To pin a mistake solely on him when others with more experience
were also involved would be improper. Two other experienced representatives
played a role in the handling of this grievance—Labor Chairperson Crici who
filed both grievances, and Representative Ayers who set up meetings with the
City. The obligation rested with the Union representatives to make certain that
it complied with the extension provisions of the CBA.
Although
the Union cites authority for its theories in the event no agreement is found,
it is significant that none of these cases contain contracts with wording as
explicit as this CBA. None of them provide that time limits must be
“strictly''observed, that extensions are only permitted if agreed to and in
writing, and that failure to meet time limits deems the grievance “conclusively
abandoned.'' This CBA's strongly worded time limit provisions suggest that the
parties meant what they agreed to and would not accept so-called reasonable
explanations for excusing the failure to adhere to time limits.
This is
not to say that some circumstances may exist that simply makes compliance with
the time limits unattainable. Emergencies, Acts of God, disasters and other
like crises come to mind. But there is no showing of any extreme circumstances
that would justify proceeding with this grievance, where the finding is that no
agreement existed. The
grievant's pending criminal trial is simply not the same as a grievant being in
the armed services who is physically unable to participate in the grievance
procedure, as in the Ohmer case cited by the Union. This grievant had a
dilemma, but it was not one that was insurmountable. The parties anticipated in
their contract that extensions and waivers could be made—but only by agreement
and in writing. If the City refused to make an agreement, which it did here, the
Union had the option of still filing for arbitration and then requesting that
the arbitrator postpone the hearing pending the outcome of the criminal trial.7
The
Union maintains that there is no prejudice for the City to hear this case on
the merits. But there rarely is any such prejudice. Quite simply, prejudice is
not the issue. Arbitration is a creature of the CBA and not of the arbitrator's
own making to decide cases on the basis of prejudice. To do what the Union
proposes, especially where the contract is so explicit and no extreme
circumstances justify it, would be contrary to the authority this arbitrator
has been given by the parties and would in effect nullify the time limit
provisions of this CBA hereinafter.
Based on the above and the entire record, the grievance was not timely advanced to arbitration. Accordingly, it is found that the grievance was abandoned by the Union and may not be heard on the merits. The grievance is therefore denied.
Endnotes
* Selected by parties through procedures of the
Federal Mediation and Conciliation Service.
1. Additionally, as will be discussed, even if
he had an agreement there is concern as to whether it was proper to make it with
the Chief at step 4, or with the City Manager at step 5, which is the step just
before arbitration.
2. It is unexplainable why Puleo did not date
the letter January 27 when he spoke to the Chief instead of February 3, after
the City Manager had answered. It is clear from the CBA that the Chief's only
contractual responsibility was to answer at step 4. Another step remained—step
5 for the City Manager to respond. Arbitration occurs after this step. Thus,
any agreement to extend the period for the Union to request arbitration would
be an extension from the date of the step 5 answer. The agreement should have
been made with the City Manager to extend the time frame after this answer.
Whether this is an innocent mistake from a novice representative depends on the
rest of the evidence, as will be discussed.
3. When Puleo talked about making a “deal” with
the Chief in March 2001 he acknowledged that the Chief would need approval of
the City Manager.
4. Adding to the weight of these conclusions is Puleo's precarious and
unsupported explanation as to why he no longer had the computer he used to type
the original letter that he maintains was typed and mailed in February 2000.
After the City sought a pre-trial order to produce his hard drive to verify this
February date, it was represented in the motion stage and Puleo so testified
that lightning destroyed it in June 2000; he had to use his son's computer in
April 2001 to recreate the letter. He offered no corroboration at the hearing,
such as an insurance claim, repair receipts or receipts for replacement
equipment.
5. If the agreement is that the grievance would
be “postponed until the criminal case ended,” the criminal case finished on
January 11, 2000 when the jury found the grievant not guilty. Even if the
certification from the Clerk is taken as the date it ended, one month later, it
is not until April that the Union then sought arbitration. Thus, there is no
compliance with this purported agreement. As will be seen, the Union knew of
the City's position as early as February 2001. The notion that the meeting with
the Chief in March and the wait for his response thereafter may have tolled the
time limit ignores the fact that this meeting occurred some two months after
the trial ended. The agreement, if it existed, did not allow for such delay in
filing.
6. The grievant asserts that it makes this
argument without prejudice to the contention that an agreement exists. The
problem is these are diametrically opposed factual contentions that cannot be separated
in the factual record of this matter. It cannot be ignored that Puleo's
admission on unfamiliarity with the CBA only contributes to the already
convincing evidence that no agreement existed.
7. This arbitrator recently found that a pending criminal trial was a
reasonable excuse for delaying a decision on termination for the very reasons
cited by the Union here. There the Union claimed a due process violation
because the employer delayed the decision instead of acting promptly.
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