Sunday, March 17, 2013

City improperly terminated Union release agreement

A substantial reduction in the size of the police force did not constitute an emergency justifying the termination of the Local President's full time release from duty, according to an award by Arbitrator Joseph Licata.

The City and  PBA Local  were parties to a cba that provided:

The City agrees to full union release to the PBA President.  ...  A shirt and tie or suitable casual attire may be substituted for a police uniform. However, the uniform of the day shall be readily available in the event of an emergency that requires the PBA President to be utilized.  ...

This language had been incorporated into the cba as a result of an interest arbitration which adopted the Union's proposal verbatim.

 The City maintained that a significant reduction in funding, and a resulting layoff of approximately one third of the department, constituted an emergency justifying the reassignment of the PBA President to field duties. It  noted the increase in rapes, robberies and shootings in the city, as well as its frequent approval of President's release to attend to Union duties notwithstanding his assignment to field operations.

Rejecting the City's position, the Arbitrator concluded:

Whether by examining standard tools of contractual construction or the "emergency doctrine" as commonly understood in the labor profession, the City's position is untenable....

Looking to contractual intent, the Arbitrator observed:

Emergencies were understood as temporary events subject to Emergency Mobilization plans. As examples, emergencies included anticipated natural disasters, anticipated special events, e.g. large-scale parades, and unanticipated incidents requiring the temporary full or partial mobilization of the police department, ...

He also noted that the "Emergency Doctrine", a test sometimes used to assess a claim that an emergency privileged the suspension of contractual obligations, failed to support the City's position. Arbitrator Licata referred to a synthesis of the criteria for the doctrine developed by Arbitrator Kessleman;

1) Management must not be responsible for the emergency;
2) The emergency must involve a situation which threatens to impair operations materially;
3) The emergency must be of limited duration; and
4) Any violation or suspension of contractual agreements must be unavoidable and limited to the duration of the emergency.

In light of his determination that neither contractual intent nor the emergency doctrine privileged the City's action, Arbitrator Licata ordered the City to reassign the President to full union release duties, and to only deviate from that as an exception based upon an emergency necessitating his mobilization.

PBA Local 11 links to Arbitrator Licata's award here.

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