October 2002 Legal Update

COUNSEL'S CORNER
By: Louis D. Stober, Esq.
CSEA REGIONAL ATTORNEY

PROBATION DEPARTMENT STALL ON PAYING FOR EQUIPMENT VIOLATES CBA

Section 35-3 of the CBA states that: "Effective January 1, 2000, for employees who do not receive an equipment allowance, the County shall reimburse all Probation Officer Trainees, Probation Officers, Probation Supervisors, Deputy Directors, Assistant Probation Directors, Training Specialists, Assistants to the Director, Employment Counselors, Fire Inspector Trainees, Fire Inspectors I, II, III, Assistant Fire Marshals, AMTs, AMT Supervisors, AMT Coordinators, and District Attorney Investigators for all equipment required by their department. This shall not be construed as to prohibit the reimbursement for equipment heretofore reimbursed."

While most Departments in the County willingly complied with this provision of the CBA, the glaring exception was the Probation Department. Despite the clear language of the CBA, the Probation Department refused to reimburse the employees for any equipment. Even when the Unit President held repeated meetings with the Director and the Union produced lists of equipment that were believed to be required as a result of the meetings with the Director nothing was done.

Facing a complete "stonewall" from the Department, a grievance was filed over the Probation Department's failure to reimburse for any equipment and for it's failure to even minimally comply with the contract by creating a list of required equipment.

When the case went to arbitration, I demonstrated to the Arbitrator how various pieces of equipment are required to perform the duties of the various Probation titles. In fact, we even showed how Department documents mandated that employees have certain equipment to perform their duties. I also had the Unit President testify as to all his efforts in trying to get the Director to comply with the CBA and get his people paid for the equipment they were required to purchase to perform their duties.

What was the County's defense? Basically, because the Director did not prepare a list of required equipment could not be compelled to pay for any equipment.

In soundly rejecting the County's position, the arbitrator held:

"After carefully reviewing the record, I am convinced that the Union's grievance must be sustained … First, there is no doubt that the Department requires Officers to possess certain types of equipment, at least in a number of assignments. For example, Director Carway stated that Officers assigned to the Operation Nightwatch and the Warrant Squad are required to have a handgun … The County pointed out that these assignments are voluntary. This is so. However, Section 35-3 does not distinguish between voluntary and mandatory assignments. It requires reimbursement for 'all equipment required by the department.' The fact that some assignments may be voluntary cannot alter this requirement. The County noted that Director Carway did not issue a list of required equipment. This is also so. However, the Department cannot evade its obligation to reimburse for required equipment because no list was issued. Certain equipment is required and this mandate is not vitiated simply because a formal list of necessary equipment was not promulgated to Probation Officers." (emphasis added).

The arbitrator has retained jurisdiction with respect to the issue of damages sought by the Union, i.e., reimbursement to be awarded individual Officers and other members of the bargaining unit.

CSEA fought long and hard to get the language of Section 35-3 into the CBA. It certainly was not going to let the deliberate evasive tactics of the Probation Department to go unchallenged. In winning the arbitration, we put the County on notice that CSEA will not tolerate these flagrant violations of the CBA and that we will take these cases all the way.

Vindication is sweet and rewarding. If you find yourself in a similar situation where the County is violating your rights under the CBA, make sure to bring it to the Union's attention so immediate action can be taken to resolve your case. By fighting for your rights, all union members rights are strengthened.