City of Oregon [Ohio]
and
Oregon Police Patrolmen's Assn.
117 LA (BNA) 236
February 11, 2002
James M. Klein, Arbitrator
The issue in this case is whether the Grievant is entitled to reimbursement of tuition expenses for college courses pursuant to Article 12, Section L of the Collective Bargaining Agreement (“CBA”).
A. Article 6, Grievance Procedure, Section C (Relevant Excerpt)
All expenses for witnesses or otherwise shall be borne by the party incurring the costs. However, any City employee called as a witness by either side shall continue to receive his/her regular rate of pay while on duty attending such hearings, not to exceed the normal hours he/she would have been on duty. The fees and expenses of the arbitrator shall be paid for by the party against whom the arbitrator renders an adverse decision.
B. Article 12, Section L, College Credit Reimbursement
Full-time employees who have
earned college credit hours in a regular college, community college or junior
college shall be reimbursed for up to two (2) courses per term at the State of
Ohio rate charged per hour, excluding books and other fees (activity fee,
parking, etc.)
In order for the employee to receive the above allowance, they must receive a passing grade of “C” or higher and all courses must be related directly or indirectly to the employee's employment with the City of Oregon. Employees are eligible to receive reimbursement for college credit hours for work done up to and including a Master's degree. The city will not pay for any Doctoral degree credits except those associated with a Jurisprudence Degree.
In the event that the employee is receiving additional funds (i.e., grant) to pay for all or part of the tuition of the classes approved by the City, under this Article the City will only pay the difference in the amount necessary to cover the cost of said tuition. The employee is responsible for informing the employer when this situation occurs.
All courses must receive prior approval from the Mayor or Mayor's designee. This approval must be requested by the employee in writing and attached to this request should be a copy of the curriculum. DPS Form #96 should be used by the employee when reimbursement is requested.
Employees shall be given preference under Section J of this Article to trade days when attending college courses.
The City of Oregon recognized and encourages bargaining unit members in the attainment of the following areas of law enforcement expertise:
1. Completion of a Bachelor of Arts degree;
2. Master Patrolman status (ten (10) years in the road patrol classification);
3. D.A.R.E. Officer:
4. S.R.T. Coordinator;
5. Certified instructor;
6. Detective.
III. Statement of
Relevant Facts
A. The Specific Grievance
The Grievant has been employed by the City of Oregon (the “City”) as a police officer since January, 1991. The Grievant has been pursuing a Bachelor of Arts degree in Criminal Justice over the past several years. The Grievant currently attends classes at Lourdes College in Sylvania, Ohio.
On December 12, 2001, the Grievant was advised that the Chief of Police would not approve reimbursement for tuition expenses for a religion class, “Great Religions of the Far East.” This course is a required course for the Grievant's degree. In response to the denial, the Grievant wrote an interoffice memorandum to the City Administrator appealing the decision in which the following explanation was given:
Since I am attending Lourdes College, I am required to take two religion courses. These courses, along with art, music, math, history and philosophy are all general education requirements necessary in completing my degree in Criminal Justice. My religion class choice, I felt, could best benefit me in my position as a road patrol officer. This course teaches the student about several religions in the East, many in which we are not all that familiar here in the western world. The course covers the customs and traditions of the religions as well as a general understanding. Like the Multicultural Diversity class that I just completed, this course teaches one the differences and similarities that people of a different faith have with oneself. It also can explain how or why someone behaves or reacts in situations of stress, violence or grief according to their customs and beliefs. Considering the diversity of our city and my job in maintaining peace and order, I felt this course would best help me in helping our citizens.
In a handwritten note, the City Administrator upheld the Chief's recommendation and asked the Grievant to “resubmit for a different class that is more related to job duties.” The Grievant testified that she had selected the proposed course from a number of potential courses in the attempt to find a course which had some applicability to her job as a police officer.
The Grievant completed a written grievance on January 7, 2001, in which she requested that “all classes required by the college for the degree shall be approved and reimbursed.” The Grievant's immediate supervisors agreed with the grievance, acknowledging that reimbursement should be provided. However, the requested remedy was not available at that step of the grievance. The Grievance, however, was denied by the Chief of Police. The matter proceeded to an arbitration hearing.
The Union presented significant evidence of past practice between the parties regarding other classes that were approved for reimbursement. The following is a chronological summary of those previous approvals for police officers:
Date Course(s) .
April 1, 1992 Organization
Report Writing
September 4, 1993 American
History from 1865
December 31, 1993 Public
Administration and Organizational Report Writing
April 18, 1994 Interpersonal
Communications and Interpretation of Literature
April 20, 1994 Interpersonal Communications and
Government of Canada
March 31, 1995 Techniques
of Guidance; Police & Society
May 27, 1998 The
Self: Western & Eastern Views; Evolution and its Impact on Society
July 8,1998 Controversial
Environmental Issues; Economic Geography
January 20, 1999 TV
& Culture; Negotiation Workshop
May 26, 1999 Internet for
Information & Research; Myth & Mythic Consciousness
June 3, 1999 Urban
Life & Development; Criminal Justice Administration
September 9, 1999 Zen
Philosophy; Crime & Punishment
January 5, 2000 Introduction
to Ethics; Community Corrections
January 15, 2000 Senior
Thesis; Applied Business Math
July 5, 2000 Advanced
Police & Corrections Management; Poverty & Justice
September 27, 2000 Nutrition
{1}
January 24, 2001 Dynamics
of Marriage & Family; Multicultural Diversity
December 31, 2000 Dynamics
of Marriage and Family
In addition to the above summary, the Union presented the actual written requests for reimbursement that contained an explanation, and in some cases the sole explanation, that the courses were required for the completion of a degree. In fact, on or about May 4, 1998, a detective asked for reimbursement for two courses, “Clashing Views on Controversial Environmental Issues” and “Economic Geography of the U.S.” In response to this request, the Chief of Police's handwritten note to the Mayor indicated the following: “Courses are Necessary to Gain Award of Bachelor Degree.” (Emphasis added). The detective's request was granted.
On August 10, 2001, which is subsequent to the initial grievance filed in this case, the Grievant submitted a written request for reimbursement for two courses, “Art of the Western World” and “Ohio History”. Again, these courses are required for the Grievant's Criminal Justice Degree. The Chief of Police approved Ohio History, but did not approve the art course. The Mayor, however, declined reimbursement for both classes.
The Grievant filed another written grievance form, but labeled it as an “Addendum” to the initial grievance. The Addendum asked for the same relief, and as before, the Grievant's immediate supervisors believed that “the course work in question is job related due to their [sic] requirement for completion of a criminal justice degree[.]” The Chief of Police provided the following reply at Step 2:
Contract language in Article 12, Section L (College Credit Reimbursement) is clear “ ... all courses must be related directly or indirectly to the employee's employment with the City of Oregon” Companion Grievance Already in the Grievancy Process.(Emphasis added). Testimony was taken at the September 14, 2001 hearing regarding these later events over the formal Objection of the City.
IV. The Position
of the Parties
A. The Union
The Union contends that the City violated Article XII, Section L when it denied reimbursement for the Grievant's classes. The Union contends that the classes were “directly” related to the Grievant's employment because they were part of a degree requirement in Criminal Justice. The Union also argues that the term “indirectly” is ambiguous, and therefore, that it is necessary to consider past practice to determine what that term was meant to convey. After discussing the past practice evidence, the Union argues that the classes were indirectly related to the Grievant's job because, essentially, it provided her with a better understanding of a different culture that would be helpful with her work as a police officer.
The City contends, in principal part, that it has the ultimate discretion to determine what is, or is not, “directly” or “indirectly” related to the employee's employment. Therefore, according to the City, the Union must demonstrate that it abused its discretion when it refused reimbursement for classes that are needed for a Criminal Justice Degree. The City argues that the classes that were rejected did not have a nexus, directly or indirectly, to the Grievant's job as a police officer, and therefore, reimbursement is not proper. The City further argues that past practice should not apply because there is not enough evidence to support the argument. As argued by the City, although it may have been lenient in the past, “those few course approvals do not establish a past practice.”
The City also argues that the Arbitrator does not have the authority to rule that the City must pay for all courses that are required for a degree. The City contends that this would be tantamount to “writing or rewriting the contract.” The City also contends that if that were the ultimate remedy, the grievance is untimely because the City first notified the Union of its intentions on June 22, 2000, when it discussed the Grievant's “Nutrition” class.
V. Opinion and
Award
A. Burden of
Proof
This is a contract interpretation case. The only burden of proof applicable in contract interpretation cases (as opposed to disciplinary cases) is the standard one of “preponderance of the evidence.” C Cair, Inc., 106 LA (BNA) 56, 60 (Nolan 1995). The Union bears the burden, since it filed the grievance, to demonstrate that the City violated the CBA when it refused to reimburse the Grievant for classes that, although required for a Criminal Justice degree, were, in its estimation, unrelated to the Grievant's employment. In making this finding, the Arbitrator rejects the City's argument that its conduct should be reviewed according to an “abuse of discretion” standard. This is not a management rights dispute. The City wrongfully attempts to “bootstrap” this dispute into a management rights issue by arguing that it has the ultimate and sole discretion to interpret what the CBA provides. Article 12, Section L does not indicate that the City has the ultimate discretion, or “sole” discretion to make that determination. Rather, the CBA clearly provides that an employee is entitled to reimbursement if the course is “directly” or “indirectly” related to the employee's employment. That is the language, which will be discussed in this Opinion according to well-established rules of contract construction.
Although there is some arbitral authority for the City's position, the Arbitrator believes that it is distinguishable. In the City of Grandview Heights, Ohio, 110 LA (BNA) 428 (Lorie, May 7, 1998), the arbitrator applied the stricter abuse of discretion standard to a tuition reimbursement case. However, in that case, the collective bargaining agreement provided that it was in the Chief of Police's discretion to determine when reimbursement would be provided. Moreover, in the past, the Chief of Police had approved course work by considering the individual value of each course. In the instant case, however, the contract language is much more specific, and provides that reimbursement “shall” be provided if course work is either “directly” or “indirectly” related to the employment. These specific provisions are absent from the contract language in the Grandview Heights case. Indeed, Grandview Heights distinguished cases much more like the instant case on the basis that in these other cases, tuition reimbursement was mandated. Finally, Grandview Heights did not address the past practice issue which is applicable to this case. {2}
Commentators recognize that no function of the labor management arbitrator is more important than that of interpreting a collective bargaining agreement (“CBA”). Elkouri & Elkouri, How Arbitration Works, Fifth Edition, p. 470. The first rule regarding the interpretation of a CBA is that “if the language of an agreement is clear and unequivocal, an arbitrator generally will not give it a meaning other than that expressed.” Id. at 470. The rule primarily to be observed in the construction of written agreements is that the interpreter must, if possible, ascertain and give effect to the mutual intent of the parties. Id. at 471. There is no need for interpretation unless the agreement is ambiguous. Id. at 470. To determine whether a contract is ambiguous, the Arbitrator applies the following rule:
An agreement is not ambiguous if the arbitrator can determine its meaning without any other guide than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends. But an agreement is ambiguous if “plausible contentions may be made for conflicting interpretations” thereof. Id. at 470 (citations omitted).
If the contract is determined to be ambiguous, one of the many rules that are applied, and which has significance to this case, is that “[o]ne of the most important standards used by arbitrators in the interpretation of ambiguous contract language is that of custom or past practice of the parties.” Elkouri & Elkouri, How Arbitration Works, Fifth Edition, p. 648. Indeed, the use of past practice to interpret ambiguous provisions is so well established that “no citation of arbitral authority is necessary.” Id. at 648. According to Elkouri, although a single incident does not necessarily establish a “practice,” “it seems reasonable that fewer instances would be required to establish a `practice' where the situation arises only infrequently than would be required where the situation arises often.” Id. at 650. Therefore, there are instances where even a single incident that was “fully parallel” to a situation before an arbitrator would suffice where parallel situations would not likely arise often. Id.
In the instant case, the Arbitrator believes the term “directly” in the contractual language is not ambiguous. However, as indicated by the inconsistent interpretations of the parties to this arbitration, the term “indirectly” is more troubling. Each party's argument is, frankly, plausible. On its face, the language supports the Union's argument that there is an “indirect” benefit to the Grievant's employment with the City if the course is part of the overall requirements of a Bachelor of Arts Degree in Criminal Justice. On the other hand, if you ignore the requirements of the degree, and you consider each course in a vacuum, the language supports the City's argument that an art class does not benefit a police officer's employment with the City. Therefore, the Arbitrator finds that the particular clause is ambiguous. Therefore, he may consider the parties' past practice.
The Arbitrator believes that the evidence submitted to him is sufficient to consider the past practice of the parties. The City contended in its post-hearing brief that there was insufficient actions to consider any decision a “practice.” However, as indicated above, depending on the frequency of an event, a multitude of acts is not required. There was testimony in this case that the requests for reimbursement were not a common event. Therefore, the Arbitrator rejects that portion of the City's argument.
The evidence regarding past practice is compelling in the Union's favor. In the past, a good number of arguably “unrelated” courses were approved, including, American History from 1865, Government of Canada, The Self: Western & Eastern Views, Economic Geography, TV &Culture, Myth & Mythic Consciousness, and even Zen Philosophy. In one instance, the City approved an American History course, but then with respect to the Grievant, rejected an Ohio History course. The City's conduct is totally inconsistent.
The City attempted to justify the apparent inconsistency by indicating that a new City Administrator was in place, and that the Chief of Police, who has been with the City for five (5) years, always believed that it was not sufficient to merely state that a course was required for a degree. However, this claim is not supported by the evidence. The Union presented evidence of actual requests that contained an explanation, and in some cases the sole explanation, that the courses were required for the completion of a degree. Moreover, on or about May 4, 1998, a detective asked for reimbursement for two courses, “Clashing Views on Controversial Environmental Issues” and “Economic Geography of the U.S.” In response to this request, the Chief of Police's handwritten note to the Mayor indicated the following: “Courses are Necessary to Gain Award of a Bachelor Degree.” (Emphasis added). The courses were ultimately approved.
Based upon the evidence presented, the Arbitrator finds that the City violated Article 12, Section L of the CBA when it refused to reimburse the Grievant for classes that were required for her Criminal Justice Degree. This decision also applies to the Addendum to the initial grievance, involving the art class and the Ohio History class. As indicated by the Chief of Police's response at Step 2, the City considered the second submittal from the Grievant as a “companion” grievance.
This Arbitrator cannot, however, rule prospectively that all courses that are needed for a degree relating to the employee's employment must be reimbursed. This would amount to an unlawful advisory opinion. These issues must be dealt with on a case-by-case basis. However, this Arbitrator intends that his findings in this case may be used to support an “issue preclusion” collateral estoppel argument. To that end, the Arbitrator finds that the past practice of the parties supports the Union's contention that if a class is a required course for a degree that is related to the employee's employment, the City, in the past, has applied Article 12, Section L, in such a manner to support the argument that the parties intended to have those courses reimbursed. {3}
The Grievance is sustained. The Grievant is entitled to be reimbursed for the classes that were part of her initial grievance, as well as the “Addendum” to the initial grievance. Furthermore, pursuant to Article 6, Section C of the CBA, the City is ordered to pay for all of the Arbitrator's fees and expenses. The Arbitrator will reserve jurisdiction over this matter to insure that the award is implemented.
1 The City paid for this class, but sent a Memorandum on June 22, 2000 indicating that it was only paying for the class because it did not act on the request in a timely manner.
2 Other cases suggest that even where approval is discretionary, a “reasonableness” standard applies. Village of Franklin Park, Illinois, 109 LA (BNA) 103 (Witney, September 2, 1997); In re Shawnee State Univ., 112 LA (BNA) 42 (Bell, December 9, 1998) (in which a preponderance of the evidence standard was applied); In re City of St. Mary's, 113 LA (BNA) 708 (Talarico, September 17, 1999).
3 This issue can be more fully explored, if necessary to future disputes, by reviewing Elkouri & Elkouri, How Arbitration Works, Fifth Edition, p. 609.