Firm
Case Studies
DFHK Wins Summary Judgment Against Prisioner Claiming Cruel and Unusual Punishment in County Jail
On December 21, 2011, Ohio’s Northern District Court granted the Allen County Sheriff’s Office’s Motion for Summary Judgment against James L. Bridgmon, a former inmate in the Allen County Jail. Mr. Bridgmon claimed the Sheriff’s Office violated his Eighth Amendment right against cruel and unusual punishment by denying him medical treatment during his time in the jail. Without delving into a factual argument regarding Mr. Bridgmon’s claims, DFHK was able to get this case dismissed based on Bridgmon’s failure to comply with the Prison Litigation Reform Act. The PLRA requires inmates to file grievances regarding prison conditions using any available grievance system in the jail prior to filing an action in court regarding those conditions. The Allen County jail has a grievance system in place and the procedures for that system are posted on the walls of every living unit in the jail. Because Mr. Bridgmon never filed a grievance regarding the alleged failure to provide medical treatment, he failed to comply with federal law and his suit was dismissed. This case demonstrates the importance for all jails to have written grievance procedures and to be able to prove distribution of those procedures to the inmates. For more information on this case or the Prison Litigation Reform Act in general, contact Matt Whitman at mwhitman@downesfishel.com.
SERB Addresses Social Media Termination Case
In our October 2011 newsletter, we advised you of a recent memorandum issued by the General Counsel for the National Labor Relations Board (NLRB) regarding the recent explosion of cases involving social media use by employees.
NLRB opinions are not binding upon Ohio Public Employers. However, the State Employment Relations Board (SERB), which has jurisdiction over Ohio public employers, will often follow NLRB precedent. On November, 22, 2011, SERB had the opportunity to weigh in on a social media termination case handled by DFHK Attorneys Brad Bennett and Todd Ellsworth.
In SERB Case #2011-ULP-08-0225, an EMS employee posted several negative comments about the EMS Director and co-workers on her personal Facebook page. A co-worker shared the posting with the Director. The Director immediately issued the employee a warning and told her to “cease and desist” from posting any further derogatory comments regarding the employer, its employees, or management.
The employee ignored the Director’s warning and posted further derogatory comments about a co-worker on Facebook, calling the co-worker a “Fuctard.” She was fired when the Director was advised of the new Facebook posting. The employee subsequently filed an Unfair Labor Practice charge with SERB stating that her termination was really based upon the fact that she was instrumental in leading a very recent (and successful) Union organizing campaign against the Employer.
SERB dismissed the charge, finding that the Facebook postings contained no reference to union activity and that the Employer sufficiently established a lack of knowledge of the employee’s union involvement. Based upon this case, public employers can breathe a little easier when faced with disciplining employees for using social media to post derogatory comments about the employer or its employees. A well-defined policy will be helpful whenever an employer finds itself dealing with a disciplinary issue in this dynamic and evolving area of the law.
For more information about this case or to receive a copy of the decision, please contact Brad E. Bennett at bbennett@downesfishel.com
Arbitrator Affirms Termination of Deputy for Failing to Meet Firearms Requirement and Sleeping on Duty
Marc A. Fishel recently received an arbitration decision involving a discharge case. The case involves a termination of a deputy by the Fairfield County Sheriff’s Office. The Arbitrator did not accept any of the excuses to the employee’s failure to qualify on his firearm and sleeping on duty. There was evidence of health problems. The Arbitrator concluded that the Employer did not have to explore the health issues because the employee did not raise it. The Union argued the Employer should have known and had an obligation to look into the health issues. Click here to read the decision.
Delaware County Sheriff’s Office and OPBA Fact Finding Report
Below is a short summary of the Fact-finding Report for the Delaware County Sheriff’s Office – Deputies Unit and OPBA from Professor Alan Miles Ruben that was issued on August 22, 2011. The Fact Finder awarded a wage increase of 3% retro to January, 2.75% in 2012 and a wage reopener in 2013. The Fact Finder also awarded the Union’s request for demand leave to be taken in minimum 4 hour increments with no notice requirements if minimum manning is maintained (total of 40 hours of demand time available annually). Finally, the Fact Finder awarded language requiring any sick leave sell back be at retirement or resignation.
To read the report in its entirety please click here.
Termination Upheld in Grievance Arbitration
The grievant, a Deputy, had worked for the Clark County Sheriff’s Office. The Deputy was terminated for providing false statements in an auto accident investigation and for lying to her supervisor about the accident. The Deputy went on disability for psychological issues after the accident. During investigation the Deputy alleged her psychological issues caused her dishonesty and that she had no intention of lying about the details surround the auto accident. The Employer did not offer the Deputy assistance through an Employer Assistance Program (EAP). In the end the Arbitrator upheld the termination. The Deputy did not provide medical evidence of her psychological issues to substantiate her defense. The Deputy had the opportunity to tell her story when she was interviewed about the auto accident and at her Pre-Disciplinary conference and chose not to. The Arbitrator also stated that Employee had a responsibility to ask for EAP. Below is the Opinion and Award of the Arbitrator, Margaret Nancy Johnson on August 18, 2011. Please click here to read the full account.
Jackson County Sheriff and Teamsters Local Union No. 637 Fact Finding Report
Below is a short summary of the Fact-finding Report for the Jackson County Sheriff and Teamsters Local Union No. 637. The Fact-finder was John Lenehan. The Fact-finder awarded a wage increase of 2% 2011; 1% in 2012; and 2% in 2013. The Fact Finder also gave a $200 signing bonus due to the fact that the bargaining unit has not had a raise in over two years. While the Fact-finder did not agree to take out the “Past Practice” and “Bargaining Unit Work” sections of the contract, the Fact-finder did reject the Teamster’s attempt to include “same or similar” insurance and insurance caps. The Fact-finder awarded the Employer’s proposal to reduce the insurance “buy-out” from 25% to 15%. Finally, the Fact-finder rejected the union’s attempt at “minimum manning” in the jail. To read the report in its entirety please click here.
Delaware County Sheriff’s Office and OPBA Fact Finding Report
Below is a short summary of the Fact-finding Report for the Delaware County Sheriff’s Office – Deputies Unit and OPBA from Professor Alan Miles Ruben that was issued on August 22, 2011. The Fact Finder awarded a wage increase of 3% retro to January, 2.75% in 2012 and a wage reopener in 2013. The Fact Finder also awarded the Union’s request for demand leave to be taken in minimum 4 hour increments with no notice requirements if minimum manning is maintained (total of 40 hours of demand time available annually). Finally, the Fact Finder awarded language requiring any sick leave sell back be at retirement or resignation. Please click here to read the full report.
Grievance Denied Regarding Minimum Qualifications
Attached is a favorable arbitration decision that DFHK received. It contains good language that stands for the proposition that management has the right to determine the minimum qualifications of a position and whether an applicant meets the minimum qualifications. Additionally, management’s determination should not be modified unless the determination is unreasonable, arbitrary, capricious, or discriminatory.
The Meigs County Engineer posted a position for an “operator.” There are several pieces of equipment used in the Engineer’s Office, however, an employee is classified as an “operator” regardless of the type of equipment he/she runs. The contract provides that the most senior employee who meets the minimum qualifications shall be awarded the job. In this case, the employer posted an operator position which required at least 2 years of experience operating excavating equipment. The most senior applicant satisfied all, but the experience requirement. He grieved upon the position being awarded to a less senior qualified applicant. Click here to read the arbitration decision in its entirety.
Last Chance Agreement Upheld
Benjamin S. Albrecht recently won a termination arbitration in the City of Wadsworth. In the Matter of Arbitration Between the City of Wadsworth and IAFF Local 4136, FMCS # 11-54961-6, Grievant was a Firefighter/Paramedic for the City of Wadsworth. On February 12, 2011, an Ohio State Trooper stopped Grievant and administered a field sobriety exam. Grievant refused to submit to a breath test and was cited for OVI, left of center, and refusal to submit to a breath test within six years of a previous refusal. Grievant’s driver’s license was immediately suspended for two years. Grievant entered a No Contest plea for all three charges in the Wadsworth Municipal Court and was found guilty on all three charges.
At the time of the 2011 incident, Grievant was under the terms of a Last Chance Agreement, awarded by an Arbitrator, arising from similar circumstances. The City asserted that Grievant violated the terms of the Last Chance Agreement by committing an OVI within three years of the enactment of the Agreement. Alternately, the City asserted that it had just cause to terminate based on the fact that Grievant previously served a six month suspension for the same offenses. The Union argued that the previous Arbitrator exceeded his authority by imposing a Last Chance Agreement lasting three years, when the parties’ Collective Bargaining Agreement only contained a two year disciplinary look-back provision.
In the 2011 arbitration, Arbitrator Marc A. Winters noted that voluntary Last Chance Agreements are binding on the parties and an arbitrator has no authority to modify a penalty set for violating that Agreement. The Arbitrator reviewed the City’s evidence and found that, during the time leading up to the finalization of the Last Chance Agreement, both parties were allowed to give input into the final product and were encouraged to discuss the terms and conditions of the Agreement with their clients. Also, the Union did not argue that the Agreement violated the collective bargaining agreement until Grievant’s subsequent OVI violation, approximately twenty months following execution. The Arbitrator denied the grievance as Grievant was terminated for the same offense and as the Last Chance Agreement limited the arbitrator’s authority to determining only whether the Agreement had been a violated.
For more information on this recent arbitration, please contact Benjamin Albrecht at balbrecht@downesfishel.com or to view the full account please click here.
Arbitration Award Usurping Commissioners’ Power Overturned
In Allen Cty Sheriff v. Fraternal Order of Police, et al., Case No. CV2011 0495 (Allen Cty CCP Sept. 1, 2011), Benjamin S. Albrecht was successful in overturning an arbitrator’s award that infringed upon the Allen County Commissioners’ power to contract for health insurance for County employees. The Sheriff’s Office and the Fraternal Order of Police began negotiations in late 2010 and health insurance became an issue. The Union proposed to include language in the collective bargaining agreement requiring the County to offer health insurance to employees’ spouses. However, effective January 1, 2011, the County Commissioners issued a Resolution prohibiting County employees’ spouses from being on County health insurance if they were eligible for health insurance through their own employer.
The parties continued through negotiations, with the Sheriff’s Office contending that it did not have the power to accept the Union’s health insurance proposal because the express language of the Ohio Revised Code places the power to contract for County employee health insurance plans squarely in the hands of the Board of County Commissioners. After negotiations ended, the issue of health insurance remained at impasse and the parties proceeded to fact finding and conciliation. At conciliation, the Union proposed its language regarding health insurance and the Sheriff maintained its inability to even consider this proposal. Nevertheless, the conciliator granted the Union’s proposal.
The Sheriff’s Office appealed to the Allen County Common Pleas Court, arguing that the conciliator exceeded his authority by ordering the Sheriff’s Office to enact a health insurance plan different from that received by other County employees and contrary to the Commissioners’ Resolution. The Court of Common Pleas agreed that the conciliator exceeded his power by ordering the Sheriff’s Office to enact a health insurance plan different from that received by other County employees and contrary to the Commissioners’ Resolution. The Union has thirty days from the date of the Court’s decision to appeal; DFHK anticipates such an action. We will keep you apprised should an appeal result.
For more information on this Appeal, please contact Benjamin Albrecht at balbrecht@downesfishel.com or to read the report in its entirety please click here.
Religious Discrimination Claim Dismissed on Summary Judgment
Paul Bernhart and David Riepenhoff recently received a favorable ruling on their Motion for Summary Judgment in Conant v. Delaware Cty Bd of Cty Commrs, September 19, 2011, Sargus, E.). Specifically, the Court found that the Employer had a legitimate nondiscriminatory reason for terminating former employee Conant. Conant worked as a dog warden for the County from 1986 until 2008. Her lawsuit arose from two disciplinary actions, a thirty-day suspension and subsequent termination. Conant, an evangelical Christian, claimed her suspension and termination were the result of discrimination based on her religious beliefs.
The County asserted that Conant failed to respond to calls from Deputies to assist with the capture of two Rottweilers. The allegation triggered an investigation that culminated in her suspension. After this investigation, the County Director of Administrative Services recommended that the Commissioners terminate Conant because the investigation uncovered dishonest activity and severe lack of attention to her duties (including failing to respond to emergency calls, falsifying records, using official time for her personal business, and violating the County’s overtime policies). Conant argued she was terminated because of her status as an Evangelical Christian, pointing out that one elected official was an ordained Pentecostal minister who disagreed with her faith. Conant further argued that her co-workers made fun of her beliefs when she was not present. She also contended that the Director criticized her for wearing a cross to work. Finally, she complained that County Board meetings sometimes included prayer.
The Court believed the County’s argument that it fired Ms. Conant for reasons other than her religious affiliation. Specifically, the Court stated that the County’s reasons for terminating Conant were legitimate and Conant failed to show these were not the reasons for her termination.
For a copy of the Order or for more information pertaining to this case please contact Dave Riepenhoff at driepenhoff@downesfishel.com or Paul Bernahart at pbernhart@downesfishel.com.
Trenton Conciliation - Referred to Voters Consistent Rejection of Tax Increases to Rule for City
Marc Fishel recently received the Conciliator, Martin R. Fitts’ Award in the City of Trenton and OPBA Conciliation. The Conciliator awarded a 1% increase effective 1/1/12 and a 1% increase effective 7/1/12 with a wage reopener for 2013. There was no increase in 2011 because the OPBA replaced the FOP and there was no (G)(11) waiver. The last raise for the employees took place in mid-2009. The Conciliator awarded the Employer’s proposal despite a 20% carryover. Finally, the Conciliator recognized the declining revenue and the citizens’ reluctance to approve tax increases.
For more information on this Award, please contact Marc Fishel at mfishel@downesfishel.com Click here for a copy of the Conciliator’s Award.
Fire Minimum Manning Provision Removed from Contract
In a decision issued on November 4, 2011, a Conciliator ordered the removal of the minimum manning provision in the contract between the City of Newark and the IAFF Local 109. This provision had been in the contract for almost 20 years.
The Conciliator’s ruling was based on the shift of services from fire to EMS (now 85% of calls), the management responsibility of the Chief to determine the City’s ability to “use personnel in an efficient and efficacious manner.”
The City’s presentation included the need for the efficient assignments of EMS squads and apparatus as well as budget and economic considerations. Dozens of other employees of the City have been laid off and no firefighters have been laid off.
The Conciliator rejected the Union argument that the minimum manning was necessary in order to guarantee staffing at the scene of a fire. The testimony and evidence indicated that the Chief, through his management right of assignment and with mutual assistance, would be able to secure sufficient personnel at the scene of a fire and yet be able to address the overwhelming (85%) need of the City for EMS services.
The Fact Finder also recommended removal of the minimum manning clause. The Fact Finder concluded that “the needed services have changed somewhat over the years and what may have been at one time practical, cost effective and efficient in serving citizens of Newark no longer is. The Employer needs the flexibility to determine the level of service and assign staff in order to provide services to the extent possible within available economic resources.
At least four other fact-finding or conciliation decisions have removed minimum manning from fire contracts. These include the City of Upper Arlington, February 11, 2011; the City of Marion, January 29, 2010; the City of Mentor, October 21, 2005; and the City of Campbell, December 20, 2004.
Extensive discussion exists in these six separate opinions removing minimum manning provisions from a fire department contract. Most focus on the responsibility of management to assign personnel and to manage the size of the staff. Discussion also includes the economic impact and the balancing of the need for services versus a minimum manning clause which typically results in overtime costs.
Issues of staffing and management rights have long been a concern for many jurisdictions and many arbitrators have compromised those management rights and responsibilities. One such compromise was made by Arbitrator Susan Grody Rubin in a recent conciliation decision involving the City of Lorain where she awarded a “staffing by apparatus” provision in a conciliation decision.
On the flip side, in a grievance arbitration Arbitrator Roumell ruled for the City of Sandusky when the Fire Union attempted to challenge the “safety” of a specific fire apparatus. The Arbitrator denied the grievance holding that the Union grievance demand was outside the authority of the arbitrator and amounted to a question of “substantive arbitrability.” Arbitrator Roumell held that it was a management right to determine if a fire truck is unsafe.
Issues involving safety and staffing within a fire department are equally applicable to other departments in public service.
If there are any questions regarding the Newark conciliation decision, please contact us. If you have questions regarding the other decisions, we will supply copies of those. If there are other decisions which address the issue of minimum manning or staffing, please share those.
Jonathan J. Downes and Stacy Pollock