The Ohio Patrolmen’s Benevolent Association (PBA) is the exclusive bargaining representative for captains and sergeants in the City of Parma Heights, Ohio. The City’s patrol officers are in a separate bargaining unit and represented by a different union. The PBA and the City bargained a contract spanning the years 2022 through 2025, which substantially changed the process by which sergeant shift vacancies are filled.
Historically, the City was contractually obligated to fill vacant sergeant shifts by paying overtime to other sergeants or captains. The City sought to limit this mandatory overtime, and negotiated some policy changes which were eventually memorialized as “Article 33.” The City bargained for the discretion to leave vacancies unfilled. The parties engaged in many unofficial and verbal discussions of the proposed policy and came to different understandings about the circumstances by which the City could fill vacancies with patrol officers designated as Officers-in-Charge (OIC). The PBA took the position that the parties agreed to limit overtime by giving the City discretion not to fill shifts, but if the City chose to do so, all patrol sergeants would have the right of first refusal for the overtime. If the patrol sergeants all refused the overtime, only then could the City offer it to OICs, then other sergeants, and finally, captains.
The City argued that Article 33 was specifically designed to eliminate the right of first refusal for patrol sergeants and granted it the authority to fill a sergeant vacancy however it chose, whether with ranked officers, OICs, or not at all. To further complicate the issue, the City would later allege that during negotiations it provided the PBA’s chief negotiator with a written document summarizing its position regarding sergeant vacancies. The PBA would later allege that the chief corroborated the PBA’s understanding of Article 33 in a verbal conversation during negotiations.
This difference in understanding was exposed about three months after the contract was ratified, when the City began filling vacant sergeant shifts with OICs. The PBA grieved this practice as a violation of Articles 33 and 34 of the new CBA. Article 34 provided that the City will not contract out bargaining unit work to individuals or entities outside the bargaining unit. The PBA grieved this practice and the dispute was heard by an arbitrator, who sustained the grievance.
The City’s argument, essentially, was that the PBA’s chief negotiator understood the City’s interpretation of Article 33 during negotiations but failed to properly communicate it to the rest of the negotiation team. The Arbitrator rejected this argument as unsupported by the record. The parties’ lead negotiators were both highly experienced, and the City conceded that the PBA’s chief negotiator was credible and honest. It was highly unlikely that the PBA’s chief negotiator would have misled his peers, especially since at least two of them were similarly experienced. The Arbitrator was also not influenced by the chief’s apparent agreement with the PBA, as that could have been the result of a misunderstanding or miscommunication. The Arbitrator decided that the City’s interpretation – that Article 33 eliminated the patrol sergeant’s right of first refusal – was unlikely under the circumstances. The parties negotiated for more equivocal language with respect to the City’s obligations in filling vacant sergeant shifts. The parties added the word “generally” into each relevant paragraph of Article 33. For example, “generally, a sergeant shall be assigned to and responsible for supervising patrol shifts.” The parties also agreed to change the word “shall” to “may” in the context of the City’s obligations to fill vacant shifts. The parties further agreed that the City’s primary motivation for these changes was to reduce overtime. Article 33 is better understood as a middle ground between the old policy – which mandated overtime and provided patrol sergeants with right of first refusal – and the City’s original proposal to eliminate Article 33’s predecessor altogether, eliminating mandatory overtime and the right of first refusal.
The City’s position at arbitration would interpret Article 33 to comport with its original proposal to eliminate both mandatory overtime and the right of first refusal. The PBA’s interpretation that Article 33 purported to end mandatory overtime, but retain patrol sergeants’ right of first refusal, was more reasonable. The Arbitrator ordered the City to cease and desist from assigning OICs to vacant sergeant shifts prior to offering them to patrol sergeants and denied the PBA’s request for backpay for missed overtime as too speculative.
City of Parma Heights, 2024 BNA LA 13 (Nowel, 2024).