AMERICAN ARBITRATION ASSOCIAITON In the Matter of the Arbitration Between NEW ENGLAND POLICE BENEVOLENT ASSOC. AAA Case No: 1139-0374- 13 Date Issued: and Feb. 20, 2014 WORCESTER COUNTY SHERIFF S OFFICE Gr: Corrections Officer Thomas Roy Arbitrator: Sharon Henderson Ellis, Esq. Appearances: Gary G. Nolan, Esq. Jason Rives, Esq. For the Union For the Department ARBITRATOR S DECISION AND AWARD Pursuant to the terms of the collective bargaining agreement between the Worcester County Sheriff s Office WSCO/Employer) and the New England Police Benevolent Association (Union) arbitration hearing in the above matter were held on July 24, August 15 and October 2, 2013 at the Hilton Garden Inn in Worcester, MA. Both parties were provided a full and fair opportunity to call witnesses and submit evidence. The parties written arguments were received by the Arbitrator on or about December 23, 2013. At the Arbitrator s request, the due date for the Award was extended to February 20, 2014. The Issue Did the Worcester County Sheriff s Office have just cause to suspend Officer Thomas Roy for two working days? If not, what shall the remedy be? 1
BACKGROUND The issue in this case involves the two- day suspension of the Grievant, Corrections Officer Thomas Roy. Roy is a nearly ten- year employee and correctional officer at the Worcester County Correctional Facility (WSO). On December 6, 2012, WSO Superintendent Shawn Jenkins issued a disciplinary decision accepting Asst. Superintendent Legendre s recommendation for a two- day disciplinary suspension of the Grievant. The stated basis for the suspension was a failure to attend roll call on November 9 and 26, 2012. 1 Pursuant to the parties collective bargaining agreement, the Union filed a grievance on Officer Roy s behalf, alleging an absence of just cause for Roy s disciplinary suspension. After the grievance was denied at the several steps of the contractual grievance procedure, it was presented in arbitration before the undersigned. In both its brief and during the arbitration, the Union asserts that for the following several reasons, there was no just cause for the Grievant s suspension: the Employer a) failed to adhere to the explicit requirements of WSO s progressive discipline system; b) gave no notice about the roll- call tardiness policy as applied 2 ; and c) discriminatorily applied the roll call policy to target the Grievant, a Union officer and activist. According to the Employer, there was just cause for a two- day suspension as discipline for the Grievant s ninth and tenth violations of the Roll Call Tardiness Policy in less than eleven months. It rejects the Union s assertion that the roll call policy has changed and was used to target the Grievant because of his union activity. Summary of Facts & Parties Contentions The two- day suspension of the Grievant, Officer Roy, is based on a charge that on November 9 and 25, 2012, he failed to attend roll call. Since attendance at 1 Jt. Exh. 6, p. 1. 2 Union Brief at p. 16. 2
roll call was the stated reason for the suspension, understanding what the term means and how it is used in normal parlance at the jail is important. Throughout the record, it seems that two different meanings are ascribed to the term roll call. Broadly speaking, at least, roll call is the 15- minute period preceding each of the three shifts at the jail for which officer are compensated with 22 minutes of extra straight- time pay. In other words, each officer works an 8- hour shift beginning at 7:00 A.M., 3:00 P.M. or 11:00 P.M. But, they are also required to be at the jail at least 15 minutes before the start of their shift. Attorney Jeffrey Turco, former WSO Superintendent, was subpoenaed by the Union as a witness in this case. When questioned, he described roll call as follows, [I]t was a 15- minute window... at quarter to the hour, guys would be punching in, they d get down [to the roll call room], you d wait a few minutes for people to go. And then typically about five minutes in, the lieutenant or the captain... would go through the roll call. It would last two or three minutes. And then the guys would be dispersed to their particular locations. 3 In the past, officers received 15 minutes of overtime pay for roll call. As stated above, however, during negotiations for the last collective bargaining agreement, the parties agreed that rather than receiving 15 minutes pay at time and one- half, they would be compensated at 22 minutes of straight- time pay. 4 Testimony indicates that when the compensation change was negotiated, there was some nervousness on the part of the Union and/or officers that the pay change might result in their being required to punch in 22 minutes before the start of the shift or at some period prior to the traditional start time at a quarter of the hour. All agree, however, that the pay adjustment does not affect the longtime obligation to punch in no later than 15 minutes before the shift starts. The 3 Tr 3, pp. 43,44. 4 The compensation change was made because 22 minutes of straight time pay can be included in an officers calculation for retirement benefits but overtime pay cannot. 3
mandatory punch- in time continues to be a quarter of the hour in the Grievant s case, 6:45 in the morning. A second and somewhat narrower meaning of roll call, often used by witnesses and counsel during the arbitration, is the 30- second to five- minute informational meeting during which a captain or lieutenant checks off the attendance roll and reads aloud a prepared synopsis of incidents and events that occurred during the preceding shift. Items included in the synopsis might include, for example, Max- B, upper left out of lock- down status or Outside perimeter much check on LH, Inmate T... at Umass Rm. 422. 5 The location of roll call for the main jail is the chapel. Roll call in this definition, then, is the brief informational meeting carried out for the benefit of the oncoming shift. It is not, apparently, a literal calling of the roll by reading names aloud but rather a checking off of names of the officers present and the assignment of officers duty posts. The Grievant regularly works the morning shift beginning at 7:00 A.M. and ending at 3:00 P.M. Officer Roy also, however, works swaps, meaning that two days each week he works two shifts back to back followed by four days off. As a result, Roy is required to report to roll call just two days per week, not four. There are approximately 28 officers who, like Roy, work the 7:00 A.M. shift and must punch in at the jail at one of two time clocks no later than 6:45 A.M. As described by the witnesses, officers like Roy who work in the main jail enter the facility and more or less immediately encounter one of two KRONOS time clocks. There an officer typically punches in his time card. To the right of the time clock is a locker room where Officer Roy, at least, keeps his work boots and uniform. From the time clock it is approximately a one to two minute walk past central control to the chapel where roll call is conducted. Located somewhere between the time clock and the chapel are, however, a series of two to four security- related 5 See E er Exh 3. No. 3 and E er Exh. 2, No. 2. 4
gates. 6 While not entirely clear from the record, apparently some gates are open, some are closed and on occasion, not regularly, an officer may be wanded. The Roll Call Tardiness Policy and Progressive Discipline It is undisputed that a failure to punch in at the jail s time clock by 6:45 A.M. constitutes tardiness. Beyond that, everything else related to appearing at roll call and being considered on time or late is disputed. Most of the disputed testimony in this case relates to the current and past practices and/or policy for marking as late an officer who punches in at or before 6:45 A.M. but physically arrives in the roll call room during or after the lieutenant has started roll call that is, the reading of the approximate 3- minute synopsis of prior reported incidents as well as other permutations. 7 Both sides agree that a written policy issued by former Superintendent Jeffrey Turco has been in existence since April 12, 2005, and is titled Roll Call Tardiness Policy. During the arbitration it was often referenced as the Turco policy. It reads: All correctional staff shall, if applicable, report to Roll Call at 15 minutes before the scheduled start of their shift. Any correctional staff arriving less than 15 minutes before the scheduled start of their shift shall be subject to the following policy: 8 1) On the third occasion, between February 1 through January 31, a correctional staff member is late three (3) minutes or less then the Operations Captain shall issue a verbal warning. 2) On the fourth occasion, or more, between February 1through January 31, a correctional staff member is late three minutes or less then the correctional staff member s Assistant Deputy Superintendent shall commence progressive discipline. 3) If, between February 1 through January 31, a correctional staff member is late more than three (3) minutes, the Operations Captain shall immediately issue a verbal warning. 4) If between February 1 through January 31, a correctional staff member is late more than three (3) minutes more than one (1) time, then the 6 The testimony regarding the number of gates was not entirely clear. 7 As part of roll call, there is also a distribution of or verification of essential work tools such as handcuffs, cut- down tool, etc. 8 See Jt. Exh. 2. 5
correctional staff member s Assistant Deputy Superintendent shall commence progressive discipline. 5) For purposes of calculating the # of occasions tardy pursuant to this policy, each correctional staff member shall default to zero on February 1 of each year. Nothing in this policy shall allow for the purging or deleting from a correctional staff member s personnel file the multi- year history of tardy. As the Turco Memorandum above references progressive discipline as well as verbal warnings, WSO s progressive or corrective discipline policy seems relevant. It provides in pertinent part: 1. Corrective discipline is a concept designed to reinforce self- discipline and good behavior... discipline is not as much a punishment system as a procedure for modifying inappropriate behavior. In a broad sense, discipline maintains orderliness. It encourages behavior which any reasonable person would expect from an employee normal and orderly conduct. Corrective discipline is predicated on the idea that management has informed employees of the performance and behavior expected of them. The employee then becomes subject to corrective disciplinary action to the extent he/she violates the rules of the organization.... A progressive order of discipline is: a. Counseling... b. Verbal Warning... The supervisor will state the infraction and the actions the employee must take in order to improve within an agreed period of time.... The supervisor, or designee will document the verbal warning on a memorandum to the employee, with a copy to be placed in the employee s personnel file.... c. Written warning: A notice in writing to the employee that further disciplinary action will be taken unless the employee s performance/ behavior improves. A copy of the written warning will be placed in the employee s personnel file.... (WCSO 914.03, dated Augsut 2012) Officer Roy s Disciplinary Record in 2012 It is undisputed that prior to 2012, the Grievant had no prior discipline on his record. During 2012, however, several disciplinary measures were recommended 6
or issued against him. With one exception, all the disciplinary actions related to asserted tardiness and/or absence at roll call. 9 Those instances are set out below: February 7, March 4, April 25, and May 19, 2012: Roy failed to punch in at work and was marked as late by the captain or lieutenant conducting roll call. May 25: Roy was marked as late for roll call. Roy arrived after 7:00 A.M. but apparently failed to punch in. At that time, Officer Roy was referred to Asst. Supt. Paul Legendre for a disciplinary hearing. At the hearing, Roy s attendance record and the Turco policy were reviewed. In his report of the disciplinary hearing to Superintendent Jenkins, Legendre wrote that he was commencing progressive discipline and issuing a verbal warning to Roy. However, evidence establishes that no written confirmation of the verbal warning was provided to Roy or to the Union, nor was written confirmation placed in the Grievant s personnel file. Roy testified that it was the first time he was made aware of the 2005 Turco policy. He did state in his testimony, however, that Legendre gave him a verbal warning that day. 10 June 11, 2012: Lt. Giangregorio marked the Grievant as late. On that date, Officer Roy failed to punch in. Again, Roy was referred to Legendre for a disciplinary hearing. Legendre reviewed Roy s attendance record with him. In a memorandum to Supt. Jenkins, Legendre reported that he was continuing progressive discipline and issuing a written warning. Apart from Legendre s statement that he was recommending a written warning, there is no evidence that the warning itself was ever provided to Roy or the Union or inserted in Roy s personnel file. 11 July 24, 2012: Capt. Chas. Fuller marked Roy as late for roll call. Apparently, Roy did not attend roll call at all that day. He punched in at 6:55 A.M. Regarding the incident, Asst.Supt. Legendre held a disciplinary hearing with 9 The exception was a 30- day suspension issued in September 2012, for disrespectful treatment towards a Human Resources official. 10 Tr. 3, p. 241, 242. 11 It was at the June 12 meeting that the Grievant explained he had sleep apnea that sometimes affected his ability to arrive on time. While that was ultimately explored by the Administration, it was not considered to excuse any tardiness. 7
Roy on August 10, 2012. Subsequently, Legendre memorialized the meeting to both the Grievant and to Supt. Jenkins. He wrote, I am recommending to the Sheriff [Jenkins] that you be suspended for one day for violations of the Roll Call Tardiness Policy. Roy testified that he never received further notice of the suspension. Supt. Jenkins testified that Roy served the 1- day suspension but that it was served concurrently with a 30- day suspension Roy received for an unrelated infraction. There is no evidence establishing that the Employer ever explained to Roy in writing or otherwise that he was receiving a 1- day suspension and that it was being served concurrently with an unrelated 30- day suspension. October 28, 2012: The Employer asserts that Roy did not punch in until 6:54 A.M., but Lt. James Giangregorio did not mark him as late or absent. Lt. Giangregorio testified, however, that he spoke to Roy and to all of his officers that day explaining what he, Giangregorio, characterized as the new roll call tardiness policy. At the arbitration, Lt. Giangregorio explained the new tardiness policy as he understood it. He said that officers are to be seated in the roll call room at 6:45 and that roll call is to begin at that time. He further testified to his understanding that any officer not present in the roll call room was to be marked as late. He indicated this was the case even if the officer had punched in early or on time. November 9, 2012: Roy punched in early at 6:44 A.M. However, Capt. Anderson marked him as being late to roll call. November 25, 2012: Roy punched in on time at 6:45 A.M. but was marked as late by Lt. Giangregorio for failing to attend or be on time for roll call. On December 3, Asst. Supt. Legendre held a disciplinary hearing. Legendre s report of the meeting states that Officer Roy was not in the roll call room on either November 9 or 25. Legendre concluded by recommending a two- day suspension of the Grievant. Roy appealed the two- day suspension to Supt. Jenkins. After Supt. Jenkins sustained the two- day suspension, the Union filed the grievance on Roy s behalf that resulted in this arbitration. 8
The Union s Response The Union contends that prior to issuing the two- day suspension at issue in this arbitration, the WSO did not follow its own progressive discipline policy. As set out above, the progressive discipline policy requires, for example, that confirmation of verbal and written warnings be placed in the employee s personnel file. Here, neither a memorandum confirming the verbal warning nor the written warning was placed in Roy s file. Similarly, Roy received nothing in writing confirming a one- day disciplinary suspension. Human Resources Director Pellegrino, in a communication dated November 2012, reported that the last discipline issued to Roy was a written warning. She did not reference a one- day suspension. Supt. Jenkins testified that the one- day suspension was served concurrently with Roy s thirty- day disciplinary suspension unrelated to attendance. Even if Jenkins assertion is correct, there is no evidence that Roy himself knew he was concurrently serving a one- day suspension related to a roll- call attendance issue. The Union s position in part is that if notice of the discipline that preceded the two- day suspension was never served on Officer Roy as required by WSO s own progressive/corrective discipline policy, then the discipline for November 9 and 25 could not advance to a 2- day suspension. In addition, however, to its argument that the lower steps of progressive discipline are invalidated, the Union s second challenge to the 2- day suspension is based on an essential requirement of just cause: notice and forewarning of conduct that will result in discipline. The Union contends that Roy was deemed late pursuant to a new tardiness policy about which there was inadequate notice. The greatest disagreement and the most testimony in this case revolves around the question whether the Evangelitis Administration in 2012 changed the longstanding practice regarding attendance at roll call. It is the Union s position that prior to 2012 and except for the instances in November involving Officer Roy, no 9
officer was ever marked late and disciplined for same, if the officer arrived at the facility and punched in by a quarter of the hour. The Union s position is that officers who punched- in by quarter to the hour were deemed on time. 12 It asserts, therefore, that prior to the shift in practice, Roy, who punched in on time on November 9 and 25 would not have been subject to discipline tied to those two dates. The Employer s Position The Employer takes the position that even if an officer punches in on time at the time clock, he will be considered late if he is not present for at least some portion of roll call. According to the Employer, this policy is consistent with what has been spelled out in writing since the 2005 Turco policy and cannot be considered a new or changed policy. On both November 9 and 25, 2012, Officer Roy punched in on time. However, the Administration concluded that Roy was not present in the roll call room. Based on that conclusion, Legendre recommended that, in alignment with progressive discipline, a two- day suspension was warranted. Officer Roy, the Grievant, did not accept Legendre s recommendation and asked that it be appealed or considered by Superintendent Jenkins. On December 6, 2012, after considering all the documentation, Supt. Jenkins accepted Asst. Supt. Legendre s recommendation that the Grievant receive a two- day unpaid suspension. It is the two- day suspension that is being grieved in this arbitration. The Practice Then and Now on Reporting to Roll Call A critical question in this case is whether the Employer s practice in regard to the roll- call tardiness policy changed in 2012. Five witnesses testified consistently that under the Glodis Administration, when Attorney Turco was the Superintendent, the lieutenant or captain leading roll call had discretion as to when and whether to 12 Union Brief at p. 3. 10
mark an officer as late for roll call. All five witnesses testified that never in their experience was an officer disciplined for being late to roll call if he punched in on or before a quarter of the hour. Attorney Turco testified as follows: Roll call consisted of a 15- minute window, during which officers had to punch in and get themselves to the appropriate room where the roll could be called. He testified that the call of the roll was purposefully staggered a few minutes, typically about five minutes, so as to allow officers enough time to arrive, punch in and get through security. Roll call never started at a quarter of the hour, as it was understood that officers could not possibly be in two places at once. Officers were to punch in by a quarter of and then head to roll call. Turco testified that the possibility of starting roll call at a quarter of was specifically considered during the Glodis Administration. However, knowing that such a policy would require officers to punch in prior to :45 and therefore require paid overtime, the concept was never embraced. 13 According to Turco, discipline was rendered strictly in terms of the punch- in times as reflected in the KRONOS reports. He testified that never in his ten years at the facility did he know of someone who punched in by :45 but was disciplined. Asst. Deputy Supt. McMillan testified that prior to 2012, if an officer punched in by a quarter of and was at roll call by the time it started, typically at ten of, he would not be marked late or disciplined. He added that even if roll call had just ended, the officer would not be marked as late or disciplined. In the past, he testified, the senior shift officer had discretion in this regard that they no longer have. He testified that he has never known an officer who punched in on time but was nonetheless marked late and disciplined. 14 Lt. Giangregorio testified that, prior to the current Administration, so long as an officer punched in on time (6:45) he would be marked as present (not late) or absent and would not be disciplined as a result. In his ten years he did not know anyone who punched in by :45 but was disciplined for tardiness. He testified to his 13 Tr. III, 57, 92-94. 11
dismay that as of about October 2012 he has been instructed to start roll call at a quarter of the hour (6:45). He indicated that this is sometimes even difficult for the senior officer to have everything in place by 6:45. He testified that he announced this tightening of the policy at roll call. However, at no time was a formal or official written explanation of the change disseminated to officers or the Union. Officers Warren Lohnes and the Grievant Roy essentially described the same prior practice that Turco, McMillan and Giangregorio described. Supt. Jenkins was the only witness who asserted that past practice and present practice haven t changed. He testified that the senior shift officers retain discretion as to whether to mark an officer late. He also testified that so long as an officer punched in on time and arrived at roll call, even at the very end, it was not required that he be marked late. However, as the Union pointed out, standards that Jenkins reviewed and possibly amended in July 2012 specifically, WCSO 924.03A 15 appear to corroborate the testimony of Turco, McMillan, Giangregorio, Lohnes, and Roy, who asserted that the policy did indeed change. The 924.03A standards seem inconsistent with Jenkins s described practice, which is flexible as to the time an officer may present inside the roll call room without being marked late. Also, they do not seem flexible as to when the senior shift officer must begin roll call. Specifically, they read as follows in relevant part: (1) POLICY It is the policy of the Worcester County Sheriff s Office to establish and maintain a roll call system designed to enhance the flow of information from one security shift to another security shift. (2) PURPOSE It is the purpose of this policy to establish procedures governing roll call operations in accordance with management directive promulgated by the Sheriff. (3) PROCEDURES.... 15 See Union Exh. 4. B. Line staff... on standard shifts shall stand roll call in proper uniform at the designated roll call area. 12
C. Applicable staff shall clock in and report to the designated roll call area in preparation for the staff of roll call which shall commence 15 minutes prior to the start of their scheduled shift (i.e., 0645, 1445, and 2245 hours).... J. Roll call format is as follows: 1. Off- going senior shift officer prepares attendance sheet in advance of roll call. 2. Both off- going and incoming senior shift officers conduct roll call. 3. Incoming senior shift officer calls roll call to order at quarter of the hour. 4. Incoming senior shift officer calls the roll noting present, absent or late and refers anyone absent or late to the Captain s office. (Attachment 1).... 7. Incoming senior shift officer dismisses roll call. (emphasis added) Asked about the above standards, Supt. Jenkins testified that, realistically, roll call was actually called or got started closer to 6:48. No evidence was presented to indicate that the standards (WCSO 924.03A) had been disseminated. Accordingly, I conclude that the Employer s practice did change in regard to punching in and arriving at roll call. At least one change distinguishes the discipline Roy received in November 2012 from what he or other officers experienced in the past: he was disciplined for tardiness even though all parties agree that he punched in on time on the dates on which the discipline rests November 9 and 25. According to the preponderance of the testimony, past discipline has depended largely on the punch- in time rather than timely attendance at roll call. Given that roll call serves an important purpose at the correctional facility, the question arises as to whether Roy was actually at roll call on November 9 and 25. On the facts of those two days, Roy s testimony was tentative. He said that he believed he arrived at one of the two November roll calls in dispute toward the end. If Roy s memory is accurate, then he apparently did not make that assertion when he met with Legendre. In that regard Jenkins wrote, During your meeting with Asst. Supt. Legendre, you not only failed to offer any reasonable explanation or excuse for your tardiness, but simply refused to acknowledge or discuss the specific 13
behavior that led to the disciplinary referral. If Roy appeared for at least the last part of roll call, it was incumbent on him to explain that fact during the disciplinary hearing and not at the arbitration hearing many months later Written evidence presented in regard to Roy s attendance at roll call is equally conflicting. On both dates one officer marked Roy as late not absent but Asst. Supt. Legendre s reports stated that Roy was not there at all. Even if it is true, as Legendre reported, that Roy missed roll call entirely, the past practice, according to the five witnesses noted above, was perhaps loose enough that Roy did not foresee that although he punched in on time he could be disciplined for arriving late for the reading of the synopsis. Forewarning and notice as to what conduct may result in discipline is a clear requirement of discipline supported by just cause. Here, the Union asserts that the notice requirement has not been met. More specifically, it asserts that because no other officer who punched in on time was disciplined at any level or even marked as late, just cause for the discipline has not been established. Accordingly, the Union asserts that Roy was unfairly disciplined and could not have known that having punched in on time he could nonetheless be deemed late and subject to discipline. I concur with the Union that the evidence supports the conclusion that prior to Roy s suspension no one who punched in on time was disciplined for being late to roll call. Did the Employer meet the notice requirement? Two instances of rather casual notice comments, even were mentioned in testimony. Officer Roy testified that on November 9, Capt. Daignault, the senior officer on that shift, told him that to be on time, he had to be present at the start of roll call. 16 As noted above, Lt. Giangregorio testified that on October 28, 2012, he had announced the change in a 16 The Captain s reference to the start of roll call is also referenced on page 3 of Joint Exhibit 3. 14
roll call. However, for such a far- reaching change in terms of discipline, an official written communication announcing the change was in order. I therefore conclude that adequate prior notice was not present in this case. I am unable to conclude, however, that the changes to the roll call format were intended for the purpose of targeting the Grievant because of his Union activism. The evidence presented is insufficient. Was there other evidence to support the Union s assertion that the Employer failed in its burden of proving that there was just cause for the two- day suspension imposed on Officer Roy based on the events of November 9 and 25? It is difficult to know whether the failure to provide copies of the verbal and written warnings to Roy means the suspensions are essentially void. Officer Roy was told verbally suspensions were being recommended, but the requirement of written confirmation to the Grievant, the Union and the personnel file was not followed particularly regarding the one- day suspension. I conclude that Roy likely did not understand he was being suspended for one day. For one thing, that was the point in time when he raised the sleep apnea issue and no doubt hoped that it would deter any contemplated discipline. More importantly, Officer Roy never actually served the one- day suspension separate from the thirty- day unrelated suspension. As no one informed him that the one- day was being served concurrently with the thirty- day suspension, Roy had no way of knowing he had been suspended one day based on roll- call tardiness. For these reasons the one- day suspension was clearly a surprise and should be considered void. That being the case, the most Roy could have been disciplined for the November 9 and 25 instances was one day, not two. The harder question, however, is whether, in light of the compelling testimony of Lt. Giangregorio, Asst. Deputy Supt. McMillan, and former Superintendent Turco, it is fair in this particular instance to sustain a suspension of any length based on the evidence regarding November 9 and 25. 15
Listening to McMillan, Turco, and Giangregorio, I cannot conclude that in the past, anyone other than Roy who punched in on time was disciplined for roll- call tardiness. Furthermore, it is beyond question that under the Glodis Administration, roll call was never expected to begin right at 6:45. Turco testified that were that the case, extra overtime would have to have been paid because officers would have been required to punch in between two and four minutes prior to a quarter of the hour. Nothing in this decision should be interpreted as a statement on the Employer s ability to devise a roll- call format that serves to ensure that the intended purpose of roll call is being accomplished. Every single witness testified to the importance of roll call.. As the directive quoted above states, It is the policy of the Worcester County Sheriff s Office to establish and maintain a roll call system designed to enhance the flow of information from one security shift to another security shift. If the Employer concluded that the past practice was a little too fluid or flexible to ensure that, within a reasonable time after punching in, all officers were at roll call and hearing the synopsis, it is within its managerial prerogative to explore and devise ways to improve upon the policy and its practice. At a minimum, however, the Employer has to give official notice to the Union and to all officers that the practice as they have known it is being changed. 17 During 2012 at least its latter half there was a reasonable amount of ambiguity about what was or was not required. Some of that ambiguity may have arisen from the Turco policy itself. 18 This complicated case demonstrates that clarity and reasonableness regarding the fifteen- minute window open before each shift will 17 If a change imposes either a duty to bargain about the decision or the impact of the decision, then Management must carry out its contractual/legal obligation. However, that should never entirely tie Management s hands. 18 That policy statement seems sufficiently imprecise that, as demonstrated in this case, both sides were able to interpret it in a way that supported its own contention. 16
be invaluable to the Employer, to the Union, to the individual officers, and to the population they all serve. AWARD For all of the above reasons, there was not just cause for the two- day suspension imposed on the Grievant and the grievance is sustained. The two- day suspension shall be expunged from the Grievant s record. Date: February 20, 2014 Sharon Henderson Ellis Arbitrator 17