A Sparks, Nevada police officer, Karl Nieberlein, was
suspended for 15 days without pay by the chief of police as a result of
complaints from two citizens, who were involved in a ride-a-long
program. The charges involved alleged comments made to them by
Nieberlein which they viewed as derogatory to the police department.
The 15-day suspension without pay was appealed to the
city manager. The city manager failed to respond to the appeal within
the time frames set forth in the Sparks Police Protective Association’s
labor agreement, which contains a "default" clause that states
in pertinent part:
"In the event the city’s time frames have
not been met in this procedure, the grievance shall be resolved
pursuant to the remedy requested by the employee. In the event the
employee fails to comply with these time frames, the grievance is
waived."
After the city manager failed to meet the time
frames, Nieberlein’s representative, May Prosser-Strong, Employee
Representation Services, submitted a letter to the city manager advising
him of the default and requesting that the grievance be granted.
The city manager refused to grant the grievance, or
to submit the matter to arbitration, until the parties met to discuss
the appeal. During that meeting Prosser-Strong reaffirmed Nieberlein’s
right to have the matter resolved pursuant to the requested remedy. The
city manager refused to comply with the "default" language,
however, he reduced the 15-day suspension to seven-days.
The seven-day suspension without pay, as well as the
violation of the "default" clause, was appealed to
arbitration. A hearing was held in the city of Sparks on September 1,
1999, before Arbitrator Fredric R. Horowitz, esq.
During the hearing, the city asserted that
Prosser-Strong consented to an extension of the time frames when she
offered, in a letter to the city manager, to send for a list of
arbitrators.
The arbitrator found no waiver of rights in that
letter, which plainly stated that Nieberlein wished to appeal to
arbitration because there had been no response to the grievance.
The city also asserted that the time limits were
waived because a grievance meeting was ultimately scheduled by the city
manager, and attended by Nieberlein and his representative.
The arbitrator rejected this argument as well,
finding that a waiver of time limits could not be inferred from
Nieberlein’s attendance at such meeting. He commented, "parties
to a collective bargaining agreement are encouraged to meet in an effort
to resolve their differences short of arbitration, while preserving
their procedural issues for determination in arbitration, if
necessary." He further noted that Prosser-Strong had asserted that
the response by the city manager was ultimately made during the
grievance meeting, and that the city manager had neither requested nor
received permission from Nieberlein or from his representative to extend
the time limits.
As a result of all of the evidence presented at the
hearing, and arguments provided in post hearing briefs Arbitrator
Horowitz found:
-
There was not just cause to suspend Nieberlein for seven days.
-
For remedy, the city shall rescind the seven-day suspension and
restore to Nieberlein the back pay, including shift differential
lost as a result of the suspension.
The arbitrator thus affirmed the validity of the
"default" clause, finding that the language was clear and the
city manager had failed to respond to Nieberlein in the prescribed time
limits. The arbitrator also found that the city failed to contact
Nieberlein or his representative to secure an extension of the grievance
time limits.
As a result of the arbitrator’s findings with
respect to the threshold "default" clause issue, he did not
explore the merits of the city’s action with regard to the discipline.
