FEDERAL MEDIATION AND CONCILIATION SERVICE UNITED STATES GOVERNMENT WASHINGTON, DC. 20427 FRATERNAL ORDER OF POLICE LODGE #38 and RUSSELL AYERS, Grievant, V. Case N0.: 160421-54618-3 Arbitrator: Kenneth R. Starr CITY OF NAPLES, Employer. RESPONSE TO MOTION FOR CLARIFICATION The City of Naples, by and through undersigned counsel, ?les this Response to the Grievant?s Motion for Clari?cation. 1. Clarification is not permissible under the Contractor FMCS rules Initially, the Arbitrator is not permitted to clarify or interpret his Award because it would exceed the scope of his authority under the parties? collective bargaining agreement, and because the City does not consent to the Union?s request for clari?cation, which is required under FMCS rules and the Arbitrator?s Code of Professional Responsibility. First, the Arbitrator has no authority under the collective bargaining agreement to clarify his Award. The grievance procedure, set forth in the parties? collective bargaining agreement does not set forth any vehicle to request clari?cation or interpretation of an arbitration award. See Exhibit 1, excerpted from the Contract between City of Naples and Fraternal Order of Police, Florida State Lodge (herein the ?Contract?). Voluntary labor arbitration is the product of mutual agreement Of parties to unique procedures designed to settle labor disputes, and there is no legal basis for one party to resort to procedures beyond the scope of that mutual agreement. Here, SPDN-868764429-2029262 1 ALLEN, NORTON BLUE, P.A. PROFESSIONAL ASSOCIATION because there is no contractual procedure authorizing clari?cation of ?nal and binding arbitration award, clari?cation would exceed the Arbitrator?s authority under the Contract. If the Union wishes to invoke procedures beyond the scope of the collective bargaining agreement, the City must consent. FMCS Arbitration Policies and Procedures do not set forth any vehicle to request clari?cation or interpretation of an arbitration award. Accordingly, the Arbitrator is bound by the Code of Professional Responsibility for Arbitrators of Labor-Management Disputes, which provides, ?No clari?cation or interpretation of an award is permissible without the consent of both parties.? See Rule Here, the Union did not seek the City?s consent, and the City has not consented to a clari?cation of the Award. Accordingly, without contractual authority, the Arbitrator is required and ethically bound to deny the Union?s Motion as impermissible. 2. Background and summary of the Award If the Arbitrator is not inclined to faithfully adhere to the Code of Professional Responsibility and outright deny the Union?s motion, he should at least adhere to the requirement, notably reserved in cases where a collective bargaining agreement permits clari?cation, to afford the City an opportunity to be heard. See Rule The Union seeks clari?cation of the statement in the Award that the ?grievant shall be reinstated to his previous position with all bene?ts and no loss of seniority.? The Union?s Motion raises two distinct issues arising from this language. First, the Union argues that the Grievant was not reinstated to his previous position. Second, the Union argues that the Grievant was not afforded certain bene?ts upon reinstatement. The City will fully address both arguments below, but observes that the Union is not seeking any clari?cation of the Award. Rather, the Union is alleging 2 ALLEN, NORTON BLUE, RA. PROFESSIONAL ASSOCIATION that the City has not complied with the Award, which is a determination beyond the scope of the Arbitrator?s authority under the Contract. 3. Ayers was reinstated to his previous position The City has fully complied with the Arbitrator?s order to reinstate the Grievant to his previous position. The Award was issued on Tuesday, May 9, 2017, and the City wasted no time in complying. For payroll purposes, Ayers was placed back on the payroll the very next Monday, May 15, 2017 and began receiving pay (and bene?ts, as discussed in more detail below) on that date. He was returned to work in his ?previous position? as a Police Of?cer the next Monday, May 22, 2017 and assigned to duties in the ?ngerprint services of?ces. In terms of pay, he was returned to work at the maximum annual wage rate of the Police Of?cer pay range, which was at the same pay range as the date of his discharge. The Arbitrator should note that the maximum annual wage rate was contractually increased on October 1, 2016, and upon his reinstatement, the Grievant also received this increase. The Union?s argument that the Grievant?s assignment to certain job duties does not constitute reinstatement to his previous position is unavailing. There is no question that the City has reinstated the Grievant to his previous position as a Police Of?cer. The City?s personnel policies refer to positions and classi?cations interchangeably, and Police Of?cer is a position/classi?cation within the City?s pay plan and other policy documents. For instance, the City?s adopted budget refers to the number of budget authorized ?positions? of which Police Of?cer is one such position. Additionally, the PERC certi?cation for the Union covers ?All sworn police of?cers employed by the City of Naples in the classi?cation of police of?cer.? SPDN-SGST 644:29-2029262 3 ALLEN, NORTON BLUE, P.A. PROFESSIONAL ASSOCIATION A Police Of?cer?s assignment is something entirely different. An assignment is a task or duties that an employee is expected to perform, and while patrol is one assignment for Police Of?cers in the City, there are numerous other assignments staffed by Police Of?cers, including investigations, professional standards, evidence, records, etc. The assignment of Police Of?cers to duties within these departments is unequivocally a management right. The City has speci?cally reserved the management rights ?to determine the purpose of each of its constituent departments; to exercise control and discretion over the organization and ef?ciency of operations of the City; to direct the employees of the City, including the right to assign work and overtime; to hire, examine, classify, promote, train, transfer, assign, and schedule employees in positions with the City; to increase, reduce, change, subcontract, modify or alter the composition and size of the work to determine the location, methods, means and personnel by which operations are to be These managerial functions are not subject to the contractual grievance process, and they are not the subject of this arbitration. Accordingly, the City has a contractual right to decide whether civilians or law enforcement of?cers are assigned to the ?ngerprint services of?ce. If the City decides to assign law enforcement of?cers to the ?ngerprint services of?ce, it has a contractual right to transfer and assign particular Police Of?cers to that role, so long as it does not otherwise violate the contract. The Arbitrator does not have the authority under the Contract, in this arbitration or in any arbitration, to direct the City how to staff its ?ngerprint of?ce. The City and the Police Chief have a right to make assignments in conjunction with their own responsibilities, which include assigning the Grievant upon reinstatement to appropriate duties commensurate with his knowledge, skills, abilities, and competencies as a Police Of?cer. The Police Chief, in the performance of his duties as set forth in the Code of Ordinances of the SPDN-SGB 764429-2029262 4 ALLEN, NORTON BLUE, P.A. PROFESSIONAL ASSOCIATION City of Naples, must exercise judgment about the appropriate assignment of each of?cer. Based upon the ?ndings in the Award that the Grievant made malicious statements contrary to department rules, that the Grievant was labeled by the Arbitrator as a ?chronic offender,? and that the Grievant?s conduct cannot continue to be tolerated by the NPD or any other law enforcement agency, the Police Chief determined that the Grievant was not suitable as a witness in criminal prosecutions and in interactions with the public. Accordingly, the Police Chief determined that the ?ngerprint of?ce was a more suitable assignment. This determination was well within the contractual rights of the City and the Police Chief, as well as their rights and responsibilities under state and local law. There is no evidence, or argument for that matter, that this assignment is disciplinary in nature. It is nothing more than an exercise of legal discretion and management rights. The arbitrator does not have the authority to substitute his judgment for that of the Police Chief and circumvent the legally prescribed duties of the position. In accordance with the Award, the Grievant has been returned to his position as a Police Of?cer; he is simply unhappy with his assignment. He could have very well been assigned to midnights, or some other assignment which he might ?nd undesirable, but he has no contractual right, nor does the Arbitrator have any authority, to determine his assignment. The bottom line and the only fact that is relevant here, is that the Grievant was returned to his position as a Police Of?cer. He is working as a certi?ed law enforcement of?cer with all of the commensurate powers and responsibilities therewith; he is a member of the POP collective bargaining unit; and he is subject to the Contract and all policies and procedures, including the pay grade, for the position/classi?cation of Police Of?cer. The Grievant?s apparent displeasure with his assignment is not a matter within the Arbitrator?s purview. 764429-2029262 5 ALLEN, NORTON BLUE, P.A. PROFESSIONAL ASSOCIATION The only remaining point of contention is the Union?s implication that the Grievant was somehow promised an assignment on road patrol, which is supported by citing to a media report. First of all, the Union mistakenly quotes Assistant City Manager Roger Reinke. The statement that the Grievant would come back to his job in road patrol is attributed to Reinke in the media report, but it is not a direct quote. In reality, Mr. Reinke never said anything to any reporter about road patrol. He said that the Grievant would be returned to work to his position as a Police Of?cer. Even if Mr. Reinke had made that statement, it is unclear what it establishes. The City had the right to assign the Grievant to road patrol, the ?ngerprint of?ce, or any other assignment immediately upon his reinstatement, and it had the right to transfer him into any other assignment at any other time, so long as the Grievant was reinstated to his position as a Police Of?cer. This is not a matter requiring clari?cation, and it is not a violation of the Contract. In fact, the assignment of a Police Of?cer to a particular unit or department by the City is expressly authorized by the Contract and excepted from the grievance process. The Arbitrator has no authority, and indeed no grounds, to clarify his decision to encroach on clear management rights. 4. Ayers was afforded all bene?ts and no loss of seniority upon reinstatement The second part of the Union?s request for clari?cation that the Grievant has been denied speci?c bene?ts warrants minimal consideration because it is simply untrue. The Grievant did not lose any seniority; his seniority going forward will be calculated from his original hire date on May 26, 1998 with no break in service. His longevity pay will be paid on his anniversary date in accordance with Article 11.05 of the Contract, and his leave time and holiday pay will be paid in accordance with the terms of the Contract. There has been no denial of bene?ts, and no attempt to impose discipline beyond the scope of the Award. The Grievant has been reinstated to his position SP DN-BGS 76442942029262 6 ALLEN, NORTON BLUE, P.A. PROFESSIONAL ASSOCIATION as a Police Of?cer with all bene?ts and no loss of seniority as required by the Award, and therefore no clari?cation is required. Dated: June 12, 2017 Respe tfully submitted, 02 a Wayne Esq. Florida 1' No. 362492 whelsby@anblaw.com Allen, Norton Blue, RA. 1477 W. Fairbanks Ave., Suite 100 Winter Park, FL 32789 (407) 571-2152 (407) 571-1496 Facsimile Attorney for Employer CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via e-mail to Robert C. Buschel, Esq., Buschel Gibbons, P.A., One Financial Plaza, 100 SE. Third Avenue, Suite 1300, Fort Lauderdale, Florida 33394, this F0454 day of June 2017. 76444?29-20?29262 7 Attorne- (Dc. ALLEN, NORTON BLUE, P.A. PROFESSIONAL ASSOCIATION