Sunday, September 7, 2014

Correctional Officer Arbitration Awards

Several awards involving correctional officers have been in the news recently.

Correctional Officers Scheduling 

In State of Alaska and Alaska Corrections Officers Association, Arbitrator Kathy Fragnoli sustained a contract interpretation grievance involving the scheduling of vacations. She concluded that the Sheriff had violated the parties' cba by unilaterally imposing a leave restriction of 84 hour at a time. Most Correctional Officers worked schedules of seven twelve hour days followed by seven days off. The contract provided that leave selection should be based on seniority. Previously the CO's had selected vacations in one week increments using a round robin system. The Sheriff, claiming that this resulted in inequities and deprived junior employees the ability to schedule vacation in desirable times, imposed a limitation of one week of leave per month (which, when combined with days off resulted in three weeks off.) The State defended this restriction, claiming it was privileged by the management rights provision of the cba. Arbitrator Fragnoli rejected this claim, and rejected the State's argument that the restriction was necessary to equalize vacation opportunities, noting:

The other justification offered by the State—the equalization of vacation opportunities among
COs of varying seniority—is not a legitimate reason to restrict leave because it also violates the
contract. Article 20.1.E specifically states that leave selection is based on seniority. It is thus
clearly the intent of the parties ... that vacation leave be distributed based on seniority. The evidence indicated that the parties have utilized methods of leave selection (namely, the round robin) that achieve some level of equalization; any other unilateral attempts by the Department to undercut seniority as the primary basis for allotting scheduled leave violate Article 20.1.E.

The Arbitrator also rejected the State's reliance on the zipper clause of the cba, observing

Zipper clauses are construed very narrowly and clearly do not remove the need to bargain when an employer implements a new policy that directly contravenes bargained-for conditions of employment.

The Alaska Correctional Officers Association  links to the award of Arbitrator Fragnoli here.

The Association also notes here that the Alaska Superior Court has recently confirmed an earlier Award of Arbitrator Janet Gaunt (discussed here) reversing a change in scheduling of certain officers from a seven day to a five day schedule.  

Disparate Treatment 

In Iowa Department of Corrections and AFSCME Council 61, Arbitrator James Cox reduced the termination of a Correctional Officer to a forty day suspension. He did so primarily based on his finding of disparate treatment. Grievant had failed, on a number of occasions, to conduct inmate counts. Similar failures were found involving other night shift employees. In overturning the termination Arbitrator Cox observed that grievant's behavior was not as severe as that of another employee whose termination he had previously upheld. He also noted that the other employees who had engaged in similar conduct (although to a slightly lesser degree) had received only suspensions, concluding:

[Grievant] was one of 12 Officers disciplined for different degrees of similar misconduct in July 2013. It was unfair and unjustified to terminate [Grievant] while at the same time only suspending others involved in the same widespread abuse of the Count requirements in July 2013, whether for ten days or five days, for substantially similar misconduct involving between 2 and 4 occurrences rather than the 10 instances in which [Grievant] engaged. There was no identification of any factor other than the six occurrence differential to warrant his discharge. [Grievant's] discharge for similar misconduct constitutes disparate treatment especially considering the widespread failures to make and then represent having made Counts throughout the month and the number of Officers who were participants.

Accordingly, Arbitrator Cox reduced the termination to a forty days suspension.

Arbitrator Cox's Award can be found here.

Associating with a known criminal-his cousin

The Butler County, OH Sheriff has announced he will continue to appeal the decision of an arbitrator rejecting the termination of a corrections officer. The officer was dismissed after he allowed his cousin, who had recently been discharged from prison, to move in with him. The Sheriff maintained that this violated a contractual prohibition on associating with known criminals. According to a report in the Journal-News, Arbitrator Terry Bethel rejected the termination, noting that the cousin was not a notorious criminal and that grievant's actions would not substantially impair the reputation of the Sheriff's office. Sheriff ordered to rehire fired corrections officer. The arbitrator's award was upheld by the Butler County Common Pleas Court, and the Sheriff has indicated his intent to appeal that decision. Sheriff to appeal ruling reinstating corrections officer

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