Arbitration Award
|
In
re the
City
of Edmond
and
the
Fraternal Order of Police
Lodge
No. 136
118
LA (BNA) 1094
FMCS
Case No. 031022/00997-8
April
15, 2003
Ed W. Bankston, neutral chairperson, selected by parties through procedures of the Federal Mediation and Conciliation Service; Arland V. Perkins, employer member; Bill Young, union member
Bankston, Arbitrator.
The parties to this dispute, the
City of Edmond (City) and The Fraternal Order of Police, Lodge No. 136 (FOP)
are signatories to a collective bargaining agreement (Agreement) effective July
1, 2001 until June 30, 2002. The City of Edmond is predominately a residential
suburb and is one of the fastest growing cities in the State of Oklahoma. With
a population of 70,000, the City covers about 101 square miles and is adjacent
to Oklahoma City. The Police Department employs 103 commissioned officers, with
a Chief, Deputy Chief, 3 Captains, 3 Lieutenants, 9 Sergeants and 11
Detectives. Others are Police Officers from whose ranks are promoted
Detectives. Detectives serve as criminal investigators and have no supervisory
responsibility or authority. The FOP represents “all permanent paid
commissioned officers ... of the Edmond Police Department,” except the Chief of
Police and his Deputy. As police officers, these grievants are members of the
bargaining unit.
The FOP complains that the detective promotion process at issue was
irregular and in violation of! the collective bargaining agreement, and in
violation of Police Department Policy on Promotions in that the process was not
“fair and equitable.”
At the hearing of the matter, the
parties stipulated to the following issue:
Whether the detective promotion
process conducted in May 2002 was in violation of Police Department Promotion
Policy Number 01-04?
If so, what is the appropriate
remedy?
In view of the nature of the
dispute as briefly described above, the issue to be resolved by your
arbitrator, and the positions of the parties with respect to the issue, it
appears that the following provisions of the Agreement are relevant to the
resolution of this dispute.
Section 7.1 The
Employer, except as otherwise specifically provided for in this Agreement,
retains and reserves unto itself, without limitation, all the powers, rights,
authority, duties, and responsibilities conferred upon it and vested in it by
the laws of the constitutions of the United States and the State of Oklahoma,
the Statutes of the state of Oklahoma, and the Charter of the City of Edmond.
Further, all rights, which ordinarily vest in and are exercised by employers
are reserved to and remain vested in the Employer, including but not limited to
the generality of the foregoing and the following managerial rights: * * *
(c) To
determine the size of the work force and increase or decrease its size.
(d) To hire and
assign employees.
(e) To direct
the work force, assign work within the Police Department, and determine the
number of employees assigned to any particular job, assignment or operation. * * *
(g) To select
employees for promotion to supervisory positions, to determine the
qualifications and competency of employees, and to evaluate their
performance. * * *
(j) To
determine Police Department Policy, including the right to manage the affairs
of the Police Department.
Article 10
Grievance Procedure
Section 10.1 It
is the intent of the parties to this Agreement to prevent grievances and to
settle any which may occur as fairly and as promptly as practical ... This
Article is not intended to limit the parties right to grieve or arbitrate any
matter which would otherwise be subject to arbitration by statute.
Section 10.2 A
grievance is any dispute, controversy, or difference between the Employer and
F.O.P. or the Employer and any individual employee on any issue falling in
either of the two categories:
(a) Meaning,
interpretation, application, or alleged violation of the terms and provisions
of this Agreement.
(b) Meaning,
interpretation, application, or alleged violation of policies and procedures of
the Edmond Police Department, including disciplinary and discharge actions. * *
*
Section 10.5
Grievances will be processed in the following manner and within the following
stated time limits: * * *
Step 5 ... If
either party rejects the mediator’s recommendations or mediation is not
requested, the grievance shall proceed with arbitration as follows:
(a) Within seven (7) calendar days from the date of the request for arbitration, the F.O.P. and the Employer shall each select and name one (1) arbitrator and shall immediately thereafter notify each other, in writing, of the name and address of the person so named. The two arbitrators so selected and named shall, within seven (7) calendar days from and after expiration of the seven (7) day period herein before mentioned, agree upon and select a third arbitrator. If, on the expiration of the period allowed therefore, the arbitrators are unable to agree upon the selection of a third arbitrator, the F.O.P. and the Employer shall request the Federal Mediation and Conciliation Service to provide a list of seven (7) arbitrators already selected and shall alternately strike the name of one (1) arbitrator from the list until one (1) name remains, with the Employer making the first strike from said list. The third arbitrator, whether selected as a result of an agreement between the two (2) arbitrators previously selected, selected from the list provided by the Federal Mediation and Conciliation Service, shall act as Chairperson of the Arbitration Board.
(b) ... The
hearing shall be informal and the rules of evidence prevailing in judicial
proceedings shall not be binding. Any and all documentary evidence and other
data deemed relevant by the arbitrators may be received in evidence. . . .
(c) The
arbitrators shall issue a written opinion containing findings and
recommendations with respect to the issues presented. A copy of said opinion
shall be mailed or otherwise delivered to the F.O.P. and the Employer. In the
event no majority exists, the decision of the Chairperson shall prevail.
(d) The
decision, findings and recommendations of the Arbitration Board shall be final
and binding on the parties to this Agreement.
(e) The F.O.P.
shall pay for its arbitrator and the Employer shall pay for its arbitrator. The
cost of the third arbitrator shall be shared equally between the F.O.P. and the
Employer. If a transcript of the proceedings is requested, then the party so
requesting shall pay for it.
Policy and
Procedure #01-04
Promotions
Subject: This
policy shall govern the Edmond Police Department in regards to promotions to
all commissioned ranks, excluding Chief of Police.
I. Policy
A. It is the policy of the Edmond Police Department to
assure all employees a fair and equitable opportunity for advancement and to
identify the most qualified individual for advancement in a demonstrably
measured and organized manner.
The grievance arose from a
promotional procedure given for the position of detective in the Edmond Police
Department. The promotional process is governed by City’s Policy and Procedure
#01-04. Such policy is incorporated as part of the collective bargaining
agreement by law. As provided by the Oklahoma Fire and Police Arbitration
Act:
All rules, regulations, fiscal
procedures, working conditions, departmental practices and manner of conducting
the operation and administration of fire departments and police departments
currently in effect on the effective date of any negotiated agreement shall be
deemed a part of said agreement unless and except as modified or changed by the
specific terms of such agreement. (11 O.S. 51-111)
In late January 2002, the City
notified its police officers of a vacancy at the rank of Detective. Those
interested in the Detective’s job were invited to make application. According
to policy, the selection process consisted of: (1) a 100-point, four-hour
multiple choice examination of 100 questions to be administered on April 15,
2002; (2) a 50-point, four-hour written exam of four essay questions to be
administered on May 8, 2002; and (3) a 50-point, thirty-five minute interview
with the assessment board scheduled for May 9, 2002. Administration of the
100-item, multiple-choice examination was unremarkable and not herein at issue.
The grievance concerns administration of the written essay and of the interview
portions of the assessment center. Officers C.J. Wise, Richard Bercher and Tony
Newsom completed the selection process as scheduled. As the top applicant,
Officer Newsom was selected for promotion to Detective.
On May 22, 2002, Officers Bercher and Wise filed a grievance
complaining “that the detective promotion testing process ... was done in
violation of ...Policy and Procedure #01-04 ...” and the collective bargaining
agreement. The City
denied the grievance “because 1) you have made no effort to prevent or settle
the grievance prior to filing it, and 2) because you do not set out the reason
for the grievance.”
An internal Fact Finding
Committee was then convened to investigate the charges that the promotion
process was unfair and in violation of policy. The committee found that,
Specifically, some candidates during this process were allowed to use reference materials (laptop computer, notes, books, etc) during the written essay portion of the assessment process. Some candidates had not been informed they were able to possess these items prior to the written essay portion of the assessment. During the oral interview portion of the assessment center one candidate was allowed to take training records into the assessors. The assessors did not take, nor review the specific training records, but one assessor did make statements after the fact on recorded videotape to the other assessors that it did seem as though that particular candidate appeared more prepared. It was the opinion of the fact-finding committee that these incidents did cause an `unfair advantage’ and is in direct violation with the policy.
Upon review of the determinations
of the Fact Finding Committee, the City again denied the grievance as, “... the
instruction given prior to the assessment center neither allowed nor denied
candidates the ability to bring outside resources. The written exercise is
designed so that outside materials would be of no use.” Finally, the City
Manager denied the grievance because, “There is no written policy which
provides for what an officer may bring to this exercise ... Basing my decision
on the `fair and equitable’ language of the policy, I find that these incidents
did not effect (sic) the outcome of the process because no policies were in
place to require any different action on the City’s part.”
The grievance has now been
processed to arbitration. The Union asks as remedy that, “the written
assessment and oral assessment portions of the detective promotion process be
re-administered ... with new assessors, and that the successful applicant
should be compensated retro pay back to the date of the original placement of
05/11/02.”
The FOP—It is the position of the
FOP that the grievance ought to be sustained because “of the inconsistent
application of the rules to the procedure ... such that there was not a fair
and equitable opportunity for advancement, as required by Policy #01-04.”
According to the FOP, the three candidates solicited advice from varied sources
concerning whether the use of outside materials was allowed during the essay
and interview portions of the assessment. “They received varied answers.” As a
result, Officer Wise took nothing but pen and pencil to the written essay exam;
Officer Bercher took a laptop computer, a Title 21 book and a sourcebook for
detectives; and Officer Newsom “brought in some scrap notebook paper in case I
needed more room to write.” To the oral interview, Newsom took his training
records; Bercher and Wise took nothing.
The FOP argues that the promotion
process is “tainted,” citing the “unfair advantage” of the use of outside
resources as determined by the joint labor management Fact Finding Committee.
The FOP argues that, “the promotional process was not done in a fair and
equitable manner ... in the sense that all officers had an equal opportunity to
use resource and reference materials during the course of the exam.” In
corroboration, the FOP highlights the fact that the City has now issued
clarification to the effect that officers, “will not be allowed to bring
anything ... into the testing area,” such that, “everyone will be on equal
ground.” The FOP asks that the grievance be sustained, that the written and
oral assessments be re-administered with different assessors and that back pay
be awarded to the successful candidate.
The City—The position of the City
is that the grievance ought to be denied for the following reasons. First,
there was no written policy relative to the use of outside materials, so there
can be no violation; second, the use of such materials at issue was of no
advantage due to the nature of the testing; third, “No unfair bias has been
demonstrated ... due to the use of outside materials”; and finally, the
equitable doctrine of “clean hands” disfavors the grievance of Officer Bercher.
The City asks that the grievance be denied.
At issue is the integrity of the
Spring 2002 promotion procedure for Detective, and whether such procedure was
properly administered pursuant to Promotional Policy #01-04. The Policy states
that:
It is the policy of the Edmond
Police Department to assure all employees a fair and equitable opportunity for
advancement and to identify the most qualified individual for advancement in a
demonstrably measured and organized manner.
The grievance properly falls
within Section 10.2 of the Agreement wherein “grievance” is defined as, “any
dispute ... on any issue,” concerning the, “meaning interpretation, application,
or alleged violation of the terms and provisions of this Agreement ... or
alleged violation of policies and procedures of the Edmond Police Department.”
The FOP alleges a violation of Promotion Policy #01-04 asserting that, “the
promotional process was not done in a fair and equitable manner, equitable in
the sense that all officers had an equal opportunity to use resource and
reference materials during the course of the exam.”
The FOP complains that while Officer Wise brought nothing to the
assessment center, Officers Bercher and Newsom brought along extraneous
materials that were used to their advantage. Bercher readily admits to “taking
a laptop, a Title 21 book, and a book on detective procedures” to the written
exam. Wise observed
Newsom to come into the room with “a drink in one hand and some rolled-up
papers in the other.” Newsom states that the rolled-up paper was actually “some
scrap notebook paper” just in case he “needed more room to write.” It is
interesting that all three candidates had consulted other officers for advice.
Wise and Bercher had consulted a common source, Sergeant Pratt, concerning the
efficacy of extraneous materials. Yet, while Wise decided to bring nothing, Bercher took the opposite
tack of bringing a laptop, a Title 21, and a sourcebook. Newsom took some blank
paper on which to write. Even with all Bercher’s apparent “advantage,” he was
out-scored by more than two-to-one (100%-42.5%) at the assessment stage of the
promotional procedure. So, where’s the rub? Where is the “unfair advantage”
supposedly accruing to Newsom as the prevailing candidate?
The FOP faults the process
because Newsom took his training records to the oral interview. But, “The
assessors did not take, nor review the specific training records,” and, Newsom
states the records “never left my hands ... was never opened while I was in the
room.” Clearly, there’s nothing here to fuss about. Clearly, Newsom gained no
“unfair advantage” merely seeming to be prepared. On this record, his advantage
was that he was entirely prepared! So, where’s the rub?
The FOP focuses on the fact of
the candidates’ disparate approaches to the exam, one bringing-in no stuff,
another bringing-in lots of stuff, and the third with unreviewable stuff, and
that, according to the FOP, is what provides the raison d’etre? So, let’s dig
some more.
The FOP complains of the lack of
guidance with respect to extraneous materials. Indeed, there is no policy, no
procedure, and no rule controlling the use of such resource materials. Ms.
Roberta Smith is the City’s Human Resources Director. She has “conducted all
the assessment centers in the city” for about the past 10 years, and she
conducted the promotion process at issue. Ms. Smith states that there is
nothing in the policy to “prevent people from bringing outside materials to the
essay portion” of the assessment. Indeed, the policy is silent on the issue.
Ms. Smith also acknowledges that in the past candidates have brought outside
materials to the testing, and without complaint or objection. Ms. Smith states
that, “prior to this, it (promotional policy) had never stated whether anything
could be brought or not brought. It was not an issue.” The FOP is in agreement
that there is no policy with respect to outside resource materials, and that
this is the first time it has been a problem. On the record, it appears that
“some people think they can bring outside materials and some people think that
they can’t.” That’s precisely what happened here. Wise understood that he could
not, so he did not; Bercher understood that he could, so he did; Newsom was not
exactly sure, so he was cautious. The City insists that in keeping with past
practice, each candidate made his own choice. And, that’s what the record
shows. So, where’s the rub?
The FOP complains “of the
inconsistent application of the rules to the procedure.” The only semblance of
rules on this record is the City’s tacit past acquiescence of allowing the use
of outside materials. Otherwise, there are no rules, hence no inconsistency of
application inasmuch as materials have always been allowed into the exam.
The FOP insists that, “the
promotional process was not done in a fair and equitable manner, equitable in
the sense that all officers had an equal opportunity to use resource and
reference materials during the course of the exam.” (Emphasis added) Of course,
one cannot use the stuff if one does not bring the stuff. On this record, each
candidate had an opportunity to bring or not to bring outside resources. It was
an independent choice for each candidate. After some informal research, each
candidate made a reasoned choice as to what to bring to the exam. That one
chooses not to bring stuff and another chooses to bring stuff does not
necessarily contaminate the testing process so long as the ability to choose is
equal and unadulterated. As important as equality of choice is the fact that
whatever the use of such materials, there was no beneficial effect on results.
Here, there was no beneficial effect as, “There are no right or wrong answers
... it’s just the opinion of the candidate.” Wise brought nothing with him, yet
his performance outstripped Bercher with his laptop, Title 21, and sourcebook.
Even with those outside resources, Bercher’s performance was far off the pace.
Newsom used no outside materials, but was the prevailing candidate. So, where
is the “unfair advantage” associated with the use of outside resources? There
is none.
The FOP insists that language of
the policy provides without equivocation for a “fair and equitable opportunity
for advancement.” The FOP argues that, “Unfortunately, things were not that
clear ... all candidates were not given the same fair and equitable
opportunity.” On the surface, the FOP argues the fact that some candidates used
outside resources and others did not is sufficient proof that the same
opportunity did not exist for all, hence the unfairness.
The FOP insists that the language
of the policy “allows for no exception, and none should be created by adding
language to the CBA.” According to the FOP, the language of the policy is
clear, unequivocal and absolute, such that degrees of “unfairness” do not
comport with the language of the policy. Examination of the language reveals
that the term “fair” is not so precise as the FOP submits.
What is fair? There is no
question of fairness concerning the multiple choice test, mainly because it is
an objective examination, meaning that there are right and wrong answers, and
those answers are not influenced by personal feelings or prejudice; it is
unbiased, thus fair. To the contrary, the essay test at issue is not objective,
and is not designed to elicit right or wrong answers. It is subjective and
designed to produce a range of responses to the question. Here, the range of
responses was scored by assessors along these subjective dimensions (criteria):
problem analysis, judgment, planning and organizing, oral communication,
sensitivity, leadership, and decisiveness. It is important to note that each of
these dimensional criteria is subjective in nature. The test design is
imminently fair and produced, as expected, a range of performance among
candidates.
According to Webster, the term
“subjective” means, “existing in the mind; belonging to the thinking subject
rather than to the object of thought (opposed to objective); pertaining to or
characteristic of an individual; personal: a subjective evaluation.” Webster’s
College Dictionary, McGraw-Hill Ed., 1991, p. 1330. Thus, the process is about
subjective evaluation of the candidates. That is why the City insists that
outside materials did not affect the outcome of the testing process. There was
no benefit, and could be no benefit, to the use of outside resources because of
test design.
The Policy requires a “fair and
equitable opportunity for advancement.” Webster’s defines the term “fair” as,
“free from bias, dishonesty, or injustice.” (Webster’s, ibid, p. 478) On this
record, there is no evidence of bias, dishonesty or injustice associated with
the presence and use of outside materials during the essay exam, and most
certainly none during the interview. Webster’s defines the term “equitable” as,
“fair and impartial or reasonable; just and right.” Webster’s, op cit, p. 452.
On this record, the essay examination and the interview were conducted with
complete impartiality and reasonableness such as to comport with the
promotional policy requiring fair and equitable treatment of the
candidates.
With respect to the idea that,
“it is important to follow the spirit of the policy and not allow any
exceptions,” as though the policy of “fair and equitable” does not abide a
range of reasonableness, consider the following treatment of the term
“fair.”
the
term “readily accommodates such incongruities as mediocre and the usual legal
synonym equitable; it evokes subjective judgments of degree ...Fair gives no
clue to substance except that it supposed to be something good, or good for
you, whether you like it or not ... fair is flexible in the extreme ... a blob
remains a blob ... (Mellinkoff’s Dictionary of American Legal Usage, West
Publishing Co., 1992, p. 232)
Gauged by the above elucidation,
it is fair to say that the term fair connotes a range of reasonableness, and
that the facts of the matter at hand fit within that range.
Mellinkoff instructs further
that, “fair and equitable” is a “term of art; apt for convenience of reference
but not as a description of a specific degree of protection ... a redundant
form of equitable,” Thus, no solace is afforded the position of the FOP with
regard to the argument that the language of the policy does not accommodate the
facts of the matter.
With particular respect to
grievant Bercher, the City asserts that, “it is a fundamental concept of both
life and law that parties with `unclean hands’ cannot request equitable
remedies.” In fact, Bercher is the only candidate to have used outside
resources. But, it does not follow that his hands are “unclean,” unless he has
committed some wrong. According to the “clean-hands doctrine,”
a party cannot take advantage of his or her own wrong by seeking equitable relief or asserting an equitable defense if that party has violated an equitable principle, such as good faith; such a party is described as having `unclean hands.’ (Black’s Law Dictionary, West Pub. Co., 1996, p. 103)
Bercher’s actions do not fall within the clean-hands doctrine
because he has done no wrong. He cannot be faulted for use of outside materials
because he obtained specific permission to do so. And, I’m certain that given
the totality of circumstances, the City would have given such permission to
Wise and Newsom also, had they asked. Wise was correct in his judgment that
outside materials would be of no use. He cannot be faulted even though he got
“angry” and “upset” when he saw Bercher with the stuff. And, the City cannot be
faulted for his upset. Newsom committed no actions by which to be faulted. So,
where is the fault? Where is the “unfair advantage” found to exist by the Fact
Finding Committee? I find none, save perhaps, the perception of an appearance
of unfairness, but certainly no advantage such as to taint, contaminate or
corrupt, the testing process. If anything, this fact situation lends proof to
the assertion that the testing process is entirely meritorious and not subject
to compromise by the use of outside materials. The parties are commended for
their efforts in producing a testing process that works so well. The proof is
in the pudding.
As noted earlier, this is a
matter of first impression for the parties. Immediately following, and in
recognition of the problem, the City notified the FOP that it intended to
clarify “what can and cannot be brought to the exercise as `helps’, i.e.,
dictionary, thesaurus, etc.” Sure enough, in preparation for the next round of promotions,
the City issued a statement to the candidates that, “Everything you will need
to take the test will be provided, therefore, you will not be allowed to bring
anything with you into the testing area.”
The FOP asserts that the City’s
remedial effort to “make the rules clear” is proof that the candidates “were
not given the same fair and equitable opportunity.” But, the City was in fact
making a new rule in clarification and control of the testing process. As noted
earlier, there was no rule with regard to outside materials. Now, there is a
rule; there is clarity; the problem is abated. The City’s after-the-fact effort
at remediation may not be regarded as proof of testing process inequities.
Moreover, the parties are commended for their actions meant to alleviate future
incidents.
In conclusion, I find no violation of the contract, and no “unfair
advantage” by the manner and administration of the testing process at issue.
The assessment process was not tainted, nor contaminated by the presence of
outside materials such as to create inequities. The testing conformed to the
policy, and produced that which was intended—”a fair and equitable opportunity
for advancement and to identify the most qualified individual for advancement
in a demonstrably measured and organized manner.”
For all the reasons set forth and
discussed above, which all are encouraged to read with care, it is the Award of
the Arbitration Board that the grievance is DENIED.