in the matter of the arbitration between: )...

1This Revised Opinion and Award modifies my January 8, 20010 Opinion and Award asfollows:

1. At the City’s request, I clarified my previous use of the word “employee” in finding 2 onpage 21.

2. I revised pages 27 and 28 to reflect my consideration of the City’s January 19, 2010submittal on the necessity of a further hearing on my decision awarding a make-wholeremedy.

IN THE MATTER OF THE ARBITRATION BETWEEN: )) REVISED1

PORTLAND FIRE FIGHTERS’ ) ASSOCIATION, ) ARBITRATOR’S

Union, ) ) OPINION

and )) AND

CITY OF PORTLAND, ) Employer. ) AWARD

_______________________________________________ )Tom Hurley Grievance

HEARING DATE: None. Submitted as a Motion for Summary Judgment

RECORD CLOSED: December 4, 2009

DATE OF AWARD: January 21, 2010 (Revised1)

ARBITRATOR: William F. Reeves681 A StreetAshland, Oregon 97520

APPEARING FOR THE UNION:Barbara J. Diamond, Attorney at LawDiamond Law1500 NE Irving Suite 370Portland, Oregon 97232

APPEARING FOR THE EMPLOYER:Lory J. Kraut, Deputy City AttorneyCity of Portland1221 SW 4th Avenue, Suite 430Portland, Oregon 9204

REVISED Arbitrator’s Opinion & AwardPortland Fire Fighters Association & City of Portland(Tom Hurley Grievant)

PARTIES & NATURE OF THE GRIEVANCE

The City of Portland (“City” or “Employer”) and the Portland Fire Fighters’ Association

(“Association” ) are parties to a collective bargaining(“CBA”), which covers certain sworn

personnel of the Bureau of Fire, a.k.a., Portland Fire & Rescue (“PF&R”). Tom Hurley (“Grievant”)

was first employed as a fire fighter by PF&R starting in 1980. In 1993 or 1994, following an on-

the-job injury, Grievant began receiving disability benefits from the Fire and Police Disability and

Retirement Fund (“Fund”). Grievant participated in the Fund’s vocational rehabilitation program,

and received training as a chef. Grievant worked as a chef following his retraining and received

disability benefits from the Fund.

On March 7, 2007 PF&R directed Grievant to report on April 5, 2007 to work a restricted

duty assignment as a Low Hazard Fire Inspector. At that time, Grievant had just opened a restaurant

in Seattle, and was working in Seattle and Portland as an executive chef.

Grievant did not report to work as directed, nor did he respond to an April 26, 2007 letter

asking Grievant to explain his absence. On June 25, 2007 Grievant was mailed a Notice of Proposed

Termination for job abandonment. Ultimately Fire Marshal Klum fired Grievant effective October

4, 2007.

On October 18, 2007, the Association grieved the termination, requesting rescission of the

dismissal and Grievant’s reinstatement to the status of a disabled employee receiving benefits

through the Fund. On November 20, 2007 Fire Chief Sprando denied the grievance finding

Grievant’s refusal to return to duty constituted just cause for job abandonment and discharge.

The Association advanced the matter to arbitration. On July 17, 2008, I was selected by the

parties as their neutral arbitrator from a list provided by the Oregon Employment Relations Board.

RELATED PROCEEDING AND MATTERS

ERB Case No. UP-14-07

On April 25, 2007 the Association filed an unfair labor practice complaint against the City

of Portland (UP-14-07) with the Employment Relations Board (“ERB”) alleging the City violated


ORS 243.672(1)(e) and (f) [i.e., refused to bargain] by implementing a return-to-work program for

medically restricted fire fighters. The same return-to-work program was the basis for Grievant being

recalled to work. The City has petitioned for a judicial review of ERB’s final order. ERB’s Order

will be discussed in the body of this decision.

The Fund’s Denial of Grievant’s Disability Benefits

On April 13, 2007 the Fund advised Grievant it terminated his disability benefits retroactive

to April 5, 2007 because of his refusal to attend mandatory return-to-work training. Grievant was

advised he had 14 days to respond, and 60 days to appeal the decision. On April 27, 2007

Grievant’s attorney requested the Fund reconsider its decision to terminate Grievant’s benefits. The

Fund did not respond, and Grievant did not pursue his appeal rights.

NATURE OF PROCEEDINGS & ISSUES

The hearing in this matter was originally scheduled for January 8-9, 2009. In December

2008, the Association requested a continuance because a proposed order in UP-14-07 had not yet

been finalized by ERB. The Association contended ERB’s ruling would affect the arbitration.

Following a telephonic conference, I found it was in the parties’ best interests to have a “final order”

in UP-14-07, and I postponed the hearing. ERB’s final ruling (on reconsideration) was issued June

1, 2009.

At a September 1, 2009 telephonic prehearing conference, the parties discussed ways to

reduce arbitration costs such as simplifying the hearing process and/or avoiding the presentation of

uncontested evidence through oral testimony. The parties agreed to the following:

1. The Association will file, in the form of a motion for summary judgment, a brief onthe following issues:• Did the City have just cause to terminate Grievant under the City’s

“return-to-work program” in light of the ERB’s ruling in Case No.UP-14-07?

• If so, does the arbitrator have authority to issue the remedy sought bythe Association?


2. To the extent issues remain unresolved following my consideration and decisionregarding the Association’s motion, the parties agreed to present those issues at ahearing to be held February 3–5, 2010.

The parties completed their briefing on the issues on December 4, 2009.

DOCUMENTS AND EXHIBITS RECEIVED AND REVIEWEDERB Case No. UP-14-07

Recommended Rulings, Findings of Fact, Conclusions of Law and Proposed OrderRulings, Finding of Fact, Conclusions of Law, and OrderRulings and Order on Petition for Reconsideration

Union’s Motion for Summary Judgment and Memorandum in Support with attachments:October 2, 2009 Declaration of Grievant with exhibits A through F

A. 2/27/07 Letter Harper to Cobb re: Failure to Attend TrainingB. 6/25/07 Letter – Notice of Proposed TerminationC. 7/9/07 Letter from Cobb – Response to Notice of Proposed TerminationD. 9/24/07 Letter – Termination Notice effective 10/4/07E. 10/18/07 GrievanceF. 11/20/07 Grievance Denial

July 21, 2009 Declaration of Ken Burns with ERB Orders in UP-14-07City’s Opposition to Motion for Summary Judgment with attachments:

Affidavit of Suzanne Bates (Fund Operations Manager)with exhibits 1 through 7.1. 6/02/06 Fund Letter – Change in RTW Policies2. 10/30/06 Fund Letter – Change in Medical Separation Status & Training Notice3. 12/1/06 PF&R Letter – Return to Work Training4. 12/28/06 Letter – Cobb to Fund5. 4/13/07 Fund’s Notice to Grievant Terminating Benefits on 4/5/076. 4/27/07 Letter – Cobb to Fund “Response to Notice of Termination of Benefits”7. 11/5/01 Work Status Report – Grievant’s Release to work for L5–S1 injury

Affidavit of James Fairchild (HR Coordinator to PF&R) with exhibits 1 – 101. 5/9/05 PF&E Letter re medical separation status2. 1/3/07 HR Letter – Notification of Medical Layoff Status Change3. 12/1/06 PF&R Letter – RTW Orientation and Training4. Duplicate of Exhibit 25. 3/7/07 PF&R Letter – Recall to Duty as Low Hazard Fire Inspector on 4/5/076. 4/26/07 PF&R Letter – Failure to report will constitute job abandonment7. 6/25/07 FP&R Letter – Notice of Proposed Termination8. 7/9/07 Letter from Cobb – Response to Notice of Proposed Termination9. 9/24/07 FP&R Letter – Termination

10. City of Portland HR Administrative Rules – Medical LayoffAffidavit of Stephanie Harper (Deputy City Attorney) with exhibits 1–10

1. 2/3/03 Memo from Chamberlain to Fund Trustees2. Circuit Court Complaint Hurley v City of Portland3. 2/27/07 Letter Harper to Cobb

2Only the unobjectionable portions of Grievant’s supplemental affidavit was considered (Seeattachment to City’s reply brief).


4. Circuit Court Complaint Miller et. al v City of PortlandAffidavit of John Klum (Fire Chief, PF&R) with exhibit 1

1. 6/12/07 Restricted Duty Work Plan StatusCopies of Supporting Cases

Ford Motor Co., 3 LA 779 (Shulman, 1944) (Ford Motor I)Ford Motor Co., 3 LA 782 (Shulman, 1946) (Ford Motor II)OSEA v Woodburn School District No. 103, ERB No. UP-113-89 (1990)

Union’s Reply Memorandum Supporting Motion For Summary Judgment with attachments:11/20/09 ALJ’s Recommended Proposed Order ERB UP-05-08 (PPA & City)11/13/09 Supplemental Declaration of Grievant2

11/20/09 Declaration of Counsel with attached: 11/16/09 ERB letter to City requesting status of bargaining in UP-15-07.

City’s Reply Brief with attachments11/13/09 Grievant’s Supplemental Declaration with City’s redactions1

1/16/08 Oregon Live.com article on Hurley’s Restaurant7/10/09 City’s Post-Hearing Brief in ERB No UP-05-08 (PPA & City)

OtherPortland City CharterFund Policies and RulesFund Administrative RulesCBA

FACTS

There is no shortage of facts. In April 2007 the Association filed an unfair labor practice

complaint with ERB alleging the City refused to bargain with the Association when the City

implemented a return-to-work program for medically restricted fire fighters. The ALJ issued his

Rulings and Order on September 9, 2008. ERB issued its Rulings and Order on March 26, 2009 and,

on reconsideration, clarified that order on June 1, 2009. ERB found the City was required to bargain

numerous “mandatory impacts” of its decision to implement a return-to-work program (“RTW

Program”), and failed to do so. ERB ordered the City to cease and desist from refusing to negotiate


about the impacts of the RTW Program that concern mandatory subjects for bargaining. Three of

these mandatory subjects of bargaining noted by ERB were: 1) The method by which employees are

selected for the return-to-work positions; 2) The order in which employees are recalled from layoff;

and 3) Discipline for disabled workers who do not return to work.

The ALJ’s Recommended Ruling and Order contains fifty pages of facts which were found

to be correct by ERB in its Ruling and Order. To the extent the ERB’s and the ALJ’s findings are

necessary for my determination, I have incorporated those findings herein through the application

of collateral estoppel. The parties have provided other uncontested facts specific to this grievance

through affidavit. I find the following facts are uncontested.

Grievant was first employed as a fire fighter by PF&R in 1980. Grievant suffered at least

two disabling work-related injuries during his years working for the City. The first injury was to

his knee in approximately 1983. He was on and off work because of his knee injury between 1983

and 1993. During his off-duty time, Grievant received disability benefits from the Fund. In 1992,

Grievant injured his back and began receiving full disability benefits from the Fund in 1993 or 1994.

At that time, the City did not formally separate from employment those employees who were unable

to work and who were receiving disability benefits from the Fund. Instead, the City placed these

individuals on injury leave.

In its discretion, the Fund provides vocational rehabilitation services which can have the goal

of returning a disability benefit recipient to work performing a different job than fire and rescue

services. An eligibility requirement for the Fund’s Vocational Rehabilitation Program is the

reasonable expectation that the costs of the vocational rehabilitation services would result in a

reduction of the overall benefits that would likely be incurred until the member’s disability

retirement date.

Grievant qualified for and received vocational rehabilitation services from the Fund in the

form of training and tuition for culinary school. Grievant has worked as a chef since he completed

his schooling and training. Following completion of the vocational rehabilitation plan, Grievant’s

disability benefits were set at 50 percent of the Grievant’s rate of Base Pay at disability, and were

subject to reduction equal to 25 percent of any wages earned in other employment during the same


period. Grievant’s minimum disability benefit was 25 percent of the his rate of Base Pay, regardless

of the amount of wages earned in other employment.

In 2002, Human Resources began medically separating from employment those Fund

recipients who were permanently restricted from working. As part of that process, “medically

separated” employees were placed on a medical layoff list for five years. Also in 2002, the Fund

Trustees considered subsidizing the wages of police and fire employees who had permanent

restrictions if they returned to work at the PF&R or the Police Bureau. The Trustees referred to the

concept as long-term light-duty (“LTLD”), and discussed the idea at a number of meetings from

2002 through 2006. The Association supported the creation of LTLD positions.

In March 2006, the Trustees passed a resolution directing the Rules Committee to revise the

applicable rules to subsidize wages for LTLD positions for permanently restricted employees for

up to 24 months. In June 2006, the City advised Grievant and the Association that the City was

making “changes in employment policies and Fund disability benefit policies which may impact

some members with long-term restrictions.” The changes were to be part of a Return-to-Work Pilot

Project (“RTW Program”). The June 2, 2006 letter stated in part:

In cooperation with the Mayor, City Commissioners and the Fund, the Bureau ofHuman Resources, Portland Police Bureau and Portland Fire and Rescue have beenworking to develop opportunities for injured members with long-term restrictions aspart of the Return to Work Pilot Project. In addition, the Fund has recently revisedits Administrative Rules.

It is anticipated that Restricted Duty (RD) assignments will be available in bothPolice and Fire with the new budget cycle beginning July 1,2006. . . .

Not every Fund member with long-term restrictions will be eligible for a RDassignment The details of eligibility requirements and selection processes, ifappropriate, are in development. For example, we expect that a bureau member musthave permanent status as a City employee to be eligible.

The Fund will . . . review and update information about an injured member'srestrictions, as necessary. For those of you who are or will be released to work withlong-term restrictions, the Return to Work Coordinator and/or bureau will notify youin writing if there is an available assignment for which you are eligible. Return towork in these positions will be considered mandatory for the member provided you


are offered an assignment and the requirements of the assignment are within yourwork restrictions as certified by your attending physician. If you are offered a RDassignment and do not return to the bureau, there are two potential consequences.First, your disability benefits will be discontinued. The reason disability benefitsmay be discontinued is that the Portland City Charter provides that a member iseligible for disability benefits . . . “when unable to perform the Member's requiredduties because of an injury or illness . . .” The Fund therefore cannot pay disabilitybenefits to a member who can perform a RD assignment.

The second potential consequence is that your employment status with the City willbe affected. Decisions about an injured member's return to work and employmentstatus will be made by Police or Fire in consultation with BHR and consistent withprogram policies, collective bargaining agreements, and City Human ResourcesAdministrative Rules.

In October and December 2006, the Fund and PF&R sent notices to Grievant advising him

that he was a potential participant in the RTW Program. In an October 30, 2006 letter, Grievant was

directed to attend a 5-week training session beginning November 13, 2006. The letter stated that

attendance was mandatory, and failure to attend would result in the Fund beginning “the process of

suspension or termination of your benefits.” On December 1, 2006, PF&R advised Grievant that

the mandatory training dates were rescheduled to start on December 15, 2006. The same warnings

for failing to attend the training were included.

At this time, Grievant was working 12 to 14 hours a day as an executive chef overseeing a

new restaurant in Seattle he had opened in November 2006. Grievant was also traveling to Portland

where he was also overseeing a restaurant.

Grievant did not show up for the mandatory training. On December 18, 2006 the Fund

sent a letter to Grievant asking him to explain his failure to attend the mandatory training.

Grievant’s attorney responded on December 28, 2006. Grievant’s attorney claimed the notice was

untimely and inadequate because Grievant had just opened up a new restaurant in Seattle, and had

many scheduled commitments which were necessary to promote and establish his new business. He

also claimed a disabled worker who has undergone vocational retaining and who is actively

employed in the field for which they were retrained could not be required to attend retraining as

firefighter. The Fund was advised that Grievant would not have refused to attend based on these

2There may be a dispute as to whether Grievant actually received the March 7, 2007 letterordering Grievant to report to work which the City sent via certified and regular mail. For purposesof this proceeding, I consider the letters received by Grievant.


objection if he could have attended the training without jeopardizing his vocation as a chef. Instead

Grievant would have reserved his rights and sought other relief.

The City agreed Grievant had good cause for not attending the scheduled training, and

advised Grievant to contact the Fund by March 9, 2007 and arrange for the mandatory training. The

City also advised Grievant that he should expect a return-to-work notice in early March for a return-

to-duty date in April 2007. Grievant did not contact the Fund to arrange for training.

On March 7, 2007, PF&R sent a letter to Grievant directing him to report for duty on April

5, 2007 as a Low Hazard Inspector. Grievant did not report for work. On April 26, 2007, PF&R

sent Grievant a letter advising him to either report for duty by May 17, 2007, or explain why he

could not return to work.2 The letter informed Grievant, that if he failed to report or respond by May

17, 2007, the City would consider him to have abandoned his job, and would initiate the termination

process.

Concurrently, on April 13, 2007 the Fund advised Grievant it was terminating his disability

benefits because of he refusedl to attend the mandatory RTW training. Grievant was advised he had

14 days to respond, and 60 days to appeal the decision. On April 27, 2007 Grievant’s attorney

requested the Fund reconsider its decision to terminate Grievant benefits. The Fund did not respond,

and Grievant did not pursue his appeal rights.

On June 25, 2007, PF&R notified Grievant it was proposing to terminate his employment

for failing to return to duty as directed. On October 7, 2007, PF&R terminated his employment

based on a finding that Grievant’s unauthorized absence since April 5, 2007 constituted job

abandonment.

The Association grieved the dismissal on October 18, 2007, contending PF&R did not have

just cause for terminating Grievant. The remedy sought was rescission of Grievant’s discharge and

“reinstatement to status as disabled employee receiving benefits through the Fund.” The grievance


did not challenge the directive to Grievant to attend mandatory training, which was the reason the

Fund terminated Grievant’s disability benefits.

ERB’s Findings, Rulings, and Orders

ERB’s findings, rulings, and orders in UP-14-07 address the Association’s contention that

the City refused to bargain over the RTW Program. In its discussion and rulings, ERB noted the

following.

Throughout most of 2006, Association officers were aware the City was working on a RTW

Program for permanently disabled workers. The Association’s vice president was a Fund Trustee,

and saw drafts of the letters sent by the Fund Administrator to potential returning workers. On

several occasions, Fire Marshal Klum discussed the RTW Program with the Association’s president

and vice president. In fact, it was at the Association president’s request that Klum agreed that Fund

members who had been off work the longest be called back to work first.

On December 11, 2006 the Association’s counsel sent a letter to the City demanding: “To

bargain over any new bargaining unit positions that the City intends to create, as well as over the

terms and conditions of employment for 'restricted duty' positions that are being created under the

RTW program and any other mandatory subjects of bargaining that are included in or impacted by

the new program.”

On December 20, 2006 (more than one and one-half months after Grievant had been directed

to report for mandatory training), the City’s HR director responded, stating in part:

At this point in time, the details are still in under [sic] development and we believethat the demand to bargain is premature. In addition, 'light-duty' programs are apermissive subject of bargaining because they constitute an assignment of work.Consequently, at this moment in time we respectfully decline the demand becauseit is premature and because the pilot program constitutes an assignment of work.

Nevertheless, the City remains committed to continuing a dialogue with the[Association] about the pilot program Once the details have firmed up [the City] willcontact [Association] leadership and schedule a meeting to discuss the program inmore detail.


On March 7, 2007 the City formally implemented the RTW Program. On April 25, 2007 the

Association filed its unfair labor practice complaint.

In its final order of March 26, 2009 (Order on Reconsideration issued June 1, 2009), ERB

found the City’s RTW Program concerned a right to assign work and was a permissive subject of

bargaining. ERB noted that, while an employer is not required to bargain a decision that concerns

a permissive subject for negotiations, an employer is obligated to bargain “any mandatory impacts

of that decision.” Furthermore, an employer must exhaust its duty to bargain about such impacts

before implementing a decision.

ERB found the City’s decision to implement the RTW Program affected numerous working

conditions that are mandatory subjects for negotiations, including issues relevant to this arbitration

such as: 1) Procedures for recalling workers from medical layoff; 2)The order in which employees

are recalled from layoff; and 3) Discipline for disabled workers who do not return to work.

ERB also found meritless the City’s argument that it was prohibited from bargaining over

matters under the control of the Fund. ERB found: 1) The Fund was created by the City Charter;

2) The Fund, Human Resources, and PF&R are all departments within the City, created by the City,

funded by the City, staffed in accordance with City policies, and advised by the City Attorney’s

Office; 3) The Fund, HR, and PF&R all worked together to implement the RTW Program; and 4)

In effect the Fund and PF&R are two parts of the City’s governmental structure. ERB concluded

it had authority under PECBA to direct the City to require its departments to comply with the good

faith bargaining obligation imposed by law; and the City is not prohibited from bargaining about

matters under the authority and control of the Disability Fund.

Based on the above, ERB found the City formally implemented its program without giving

the Association notice that it planned to do so, and without giving the Association any opportunity

to bargain about “mandatory impacts” of the RTW Program.

Thus, ERB concluded:

1. City did not violate ORS 243.672(1)(e) by refusing to bargain thedecision to create the RTW Program.


2. City did violate ORS 243.672(1)(e) and (f) by failing to give the Associationnotice of the RTW Program and refusing to bargain about the impacts of theprogram.

As a remedy, ERB ordered the City to cease and desist from refusing to negotiate about the

impacts of the RTW Program that concern mandatory subjects for bargaining. However, ERB did

not order the City to restore the status quo that existed before the City implemented the RTW

Program.

PARTIES’ ARGUMENTS

City

The City contends there is clear and convincing uncontradicted evidence establishing just

cause for Grievant’s termination. Specifically, PF&R directed Hurley to return to work. Hurley did

not return to duty as directed. PF&R provided Hurley with the opportunity to explain his failure and

to return to work. Hurley continued to insist that PF&R had no authority to require him to return to

work, and he chose not to return. Hurley was aware of the consequences of failing to return to work.

He chose to abandon his job with PF&R, and then grieve his termination.

In response to the Association’s argument that the RTW Program was unlawfully adopted,

the City argues as follows:

• ERB confirmed the City’s right to create the RTW Program.

• ERB specifically did not restore the status quo ante. Thus, the ERB decision didnot negate the RTW program nor overrule the City’s recall of restricted-dutyemployees who had been medically separated.

• Even if the RTW recall order was unlawful or unreasonable, Grievant wasobliged to obey it because of the “work now, grieve later” rule.

Furthermore, the City argues the remedy sought by Grievant is neither warranted nor within

my authority to award. As support for its argument, the City argues that Grievant’s termination did

not cause the loss of his disability benefits. Instead, Grievant’s disability benefits were terminated

by the Fund based on Grievant’s failure to attend the mandatory training to return to work. Grievant


could have appealed the Fund’s termination of his benefits through the Fund’s appeals process, but

did not.

As to the Association’s alternate proposed remedy of awarding Grievant his lost disability

benefits as “front pay” the City contends: 1) such a remedy is generally disfavored in arbitration;

and 2) arbitration is the wrong forum in which to reinstate Grievant’s disability benefits. The City

argues that Chapter 5 of the Portland City Charter vests the Fund with exclusive authority to

determine eligibility for disability benefits.

Association

The Association contends the City did not have just cause to terminate Grievant because the

RTW order enforced by the discharge was not reasonable, and the City could not reasonably expect

the Grievant to comply with such an unreasonable order. As support for this argument, the

Association relies on ERB’s Ruling which found the City failed to bargain over the impacts of its

decision to implement the RTW Program. According to the Association, the City had no power to

order Grievant’s return to work under the RTW Program because the RTW was not a “legal

program.” The Association argues that if a rule is unlawful, it should go without saying that an

employee cannot be required to follow it.

The Association argues that ERB’s decision not to impose a status quo ante remedy in its

case does not effect this arbitration. The Association did not ask ERB to consider Grievant’s

situation because Grievant was discharged after the unfair labor practice complaint was filed. The

Association contends the City acted at its peril by going forward with Grievant’s discharge. The

Association argues that it is now the City’s duty to comply with ERB’s order. The Association

asserts the City cannot both comply with the order and argue in this case that the RTW directive

given to Grievant was reasonable.

As to the “work now, grieve later” rule, the Association contends it does not apply to the

circumstances in this arbitration. The Association argues Grievant would have been required to

abandon his career as a chef in Portland and Seattle, a career which the City had supported through

vocational rehabilitation. This would not be a reasonable expectation in light of the years Grievant

3The City’s proffered test cites AFSCME, Local 189 v. City of Portland, (Arbitrator Stitelerslip opinion June 16, 2006) at 36. The test states:

[Jlust cause is a commonly used shorthand expression as the measure of thesufficiency of the employer's reasons for the discipline imposed and the fairness ofthe procedures used. In most cases, the central elements to a determination of (sic)just cause existed for discipline are:

(1) whether the employer established by persuasive evidence that the grievantcommitted the alleged misconduct;(2) whether the employer accorded the grievant the requisite due process,including notice of the potential for discipline, or whether the conduct wassuch that any reasonable employee would know that discipline was likely toresult; and(3) whether, all things considered, the discipline imposed was reasonable.


had been away from his fire fighting duties, and receiving disability benefits, the efforts of the City

in fostering Grievant’s vocational rehabilitation in that field, and the Grievant’s inability to obtain

compensatory damages for injuries to Grievant’s property interests.

The Association acknowledges it is requesting an unusual remedy in this arbitration because

Grievant’s termination is unusual. Grievant was on medical layoff status for more than ten years

when he was recalled to work. The Association’s grievance seeks rescission of the Grievant’s

termination “so he can be returned to disability status and recommence receiving disability benefits

from the Fund.”

OPINION

Just Cause Standard

CBA Article 26 provides that discipline and discharge of permanent employees shall be for

“just cause.” The term “just cause” is not further defined in the CBA. The Association argues for

the application of Arbitrator Daugherty’s seven tests, and the City argues for a “three question” test

attributed to Arbitrator Stiteler in an unpublished opinion which was not provided to me.3

As used in collective bargaining agreements, and as discussed in labor arbitrations, “just

cause” is not an easily defined concept, and no single formula of the just cause concept has been

4Just Cause: The Seven Tests, supra.


exclusively accepted by arbitrators. An oft-quoted formula for performing a just cause analysis is

the “Seven Tests” promoted by Arbitrator Carroll Daugherty in 1964. In Daugherty’s view, if the

answer to any of his seven questions is “no,” then just cause does not exist for discipline.

Daugherty’s questions are:

1. Did the employer give the employee forewarning or foreknowledge of the possible orprobable consequences of the employee’s disciplinary conduct?

2. Was the employer’s rule or managerial order reasonably related to (a) the orderly,efficient, and safe operation of the employer’s business, (b) the performance that theemployer might properly expect of the employee?

3. Did the employer, before administering the discipline to an employee, make an effort todiscover whether the employee did in fact violate or disobey a rule or order ofmanagement?

4. Was the employer’s investigation conducted fairly and objectively?

5. At the investigation, did the “judge” obtain substantial evidence or proof that theemployee was guilty as charged?

6. Has the employer applied its rules, orders and penalties evenhandedly and withoutdiscrimination to all employees?

7. Was the degree of discipline administered by the employer in a particular casereasonably related to (a) the seriousness of the employee’s proven offense, and (b) therecord of the employee in his service with the employer? 4

However, many arbitrators take slightly different approaches to the concept of just cause.

See generally, Koven & Smith, Just Cause: The Seven Tests (BNA, 3rd ed. revised by K. May, 2006)

p 25-26. Arbitrators Abrams and Nolan have advocated a “systematic theory” of just cause by

exploring the fundamental understanding of the employment relationship as affected by the

collective bargaining agreement. See Abrams & Nolan, Toward a Theory of Just Cause in Employee

5Riley Stoker Corp., 7 LA 764 (Platt, 1947).


Discipline Cases, 1985 Duke L.J. 594 (1985); See also Brand and Biren, Discipline and Discharge

in Arbitration (BNA, 2008). Under the “systematic theory” of just cause, an employee is obligated

to provide satisfactory work by: 1) attending work regularly; 2) obeying reasonable work rules; 3)

performing a reasonable quantity and quality of work; and 4) avoiding conduct which interferes with

the employer’s ability to effectively carry on its business. An employer may discipline an employee

only when an employee fails to meet one of the above-listed fundamental obligations.

Moreover, a timeless definition of just cause first provided in 1947 by Arbitrator Harry Platt

continues to be a favorite among scholars. Arbitrator Platt noted:

It is ordinarily the function of an Arbitrator in interpreting a contact provision whichrequires [just cause] . . . not only to determine whether the employee involved isguilty of wrongdoing . . . . but also to safeguard the interests of the dischargedemployee by making reasonably sure that the causes for discharge were just andequitable and such as would appeal to reasonable and fair-minded persons aswarranting discharge. To be sure, no standards exist to aid an Arbitrator in findinga conclusive answer to such a question and, therefore, perhaps the best he can do isto decide what a reasonable man, mindful of the habits and customs of industrial lifeand of the standard of justice and fair dealing prevalent in the community, ought tohave done under similar circumstances and in that light to decide whether theconduct of the discharged employee is defensible and the disciplinary penalty just.5

No matter what test or standard is used, I find the essence of the just cause principle is the

requirement that an employer must have some demonstrable reason for imposing discipline, e.g., the

reason must concern the employee’s ability, work performance, conduct, or employer’s legitimate

business needs. Additionally, the just cause principle entitles employees to industrial due process,

equal protection, and individualized consideration of specific mitigating and aggravating factors.

Furthermore, the employer must prove the offense charged. And, finally, the employer’s actions

must comport with arbitral standards of justice and fair dealing, including: establishing reasonable

6Discipline and Discharge in Arbitration, supra, at 86 citing City of Bremerton, 121 LA 915,926 (Arbitrator Reeves, 2005)


rules rationally related to a legitimate business objective; enforcing the rules consistently, imposing

the appropriate penalty, and fairly administering the disciplinary system.

A consideration of arbitral standards of justice and fair dealing includes a consideration of

the work-rule violation or violations the grievant was accused of violating. Absent any contractual

constraints, the employer may implement reasonable work rules so long as they comply with the law

and do not contradict the collective bargaining agreement (emphasis added).6 It is axiomatic that

an unlawful rule is an unreasonable rule.

In the instant arbitration, there is no factual dispute that any rule implementing the City’s

RTW Program was unlawful. As stated the ERB-ordered Posting Notice:

ERB found that the City of Portland committed unfair labor practices under thePublic Employee Collective Bargaining Act. ERB found that the City unlawfullyimplemented the return-to-work program without bargaining in good faith with theAssociation over the impacts of the return-to-work program on mandatory subjectsof bargaining. (Emphasis added).

The City’s efforts to implement its RTW Program did not become unlawful on the date of

ERB’s Order of May 26, 2009. Instead, the City’s orders furthering the implementation of the

“mandatory impacts” of the RTW Program were unlawful at the time they were made. Accordingly,

I find the City’s orders requiring Grievant to report for training and work were unlawful and

unreasonable.

Effect of ERB not ordering a “status quo ante” remedy.

The City contends the most important aspect of the ERB's decision for purposes of the instant

case is the fact that the ERB did not restore the status quo. According to the City, ERB’s decision

did not negate the RTW Program nor overrule the City's recall of restricted-duty employees who had


been medically separated. The City contends the RTW Program remains viable and continues to

exist.

In its Order, ERB made special mention of its decision not to impose a status quo ante

remedy by noting:

Normally, in a case involving an unlawful unilateral change such as this one, we alsoorder restoration of the status quo. The Association’s complaint does not requestthat we require a return to the status quo, and we agree that it would be neitherpractical nor sensible to do so.

ERB did not discuss why it was neither practical nor sensible to do so. However, I find at

least two reasons to support such a finding by ERB. First, the ALJ noted that eleven returnees were

assigned positions under the RTW Program (ALJ Finding 63). A status quo ante remedy would

have adversely affected these Fund members. Second, the Association was in general agreement

with the concept or purpose of the return-to-work program, and had been a supporter of bringing

injured fire fighters back to work at PF&R (ALJ Finding 66). Additionally, as discussed earlier,

Grievant was not included in the Association’s unfair labor practice complaint because he had not

been fired at the time the unfair labor practice complaint was filed. In short, I find no inference can

be drawn with respect to ERB’s decision not to impose a status quo ante remedy.

Work Now, Grieve Later

The City argues that, despite the orders being unreasonable or unlawful, Grievant was

required to obey those orders under the “work now, grieve later” rule. The “work now, grieve later”

rule requires employees to follow orders given by a supervisor even though the order may be subject

to challenge through the established grievance procedure.

The rule is based on the presumption that the parties to a CBA intend to refer all their

disagreements to the grievance procedure, and that no “self-help” is to be tolerated. See generally,

Just Cause: The Seven Tests, supra, p. 170 – 181; and Discipline and Discharge, supra, p. 191 –

230. Many arbitrators have weighed in on this concept, but Ford Motor Co., 3 LA 779, 780-81


(Shulman, 1944) (herein after Ford Motor I] is often cited as the watershed case. In Ford Motor I,

Arbitrator Shulman stated in part:

The employee himself must also normally obey the order even though he thinks itimproper. His remedy is prescribed in the grievance procedure. He may not take iton himself to disobey. To be sure, one can conceive of improper orders which neednot be obeyed. An employee is not expected to obey an order to do that which wouldbe criminal or otherwise unlawful. He may refuse to obey an improper order whichinvolves an unusual health hazard or other serious sacrifice. But in the absence ofsuch justifying factors he may not refuse to obey merely because the order violatessome right of his under the contract. The remedy under the contract for violation ofright lies in the grievance procedure and only in the grievance procedure. To refuseobedience because of a claimed contract violation would be to substitute individualaction for collective bargaining and to replace the grievance procedure with extra-contractual methods. (Emphasis added)

[W]hat appears to one party to be a clear [contract] violation may not seem so at allto the other party. Neither party can be the final judge as to whether the contract hasbeen violated. . . . [M]ore important, the grievance procedure is prescribed in thecontract precisely because the parties anticipated that there would be claims ofviolations which would require adjustment. The only difference between a “clear”violation and a “doubtful” one is that the former makes a clear grievance and thelatter a doubtful one. But both must be handled in the regular prescribed manner.

[A]n industrial plant is not a debating society. Its object is production. When acontroversy arises, production cannot wait for exhaustion of the grievance procedure.While that procedure is being pursued, production must go on. And someone musthave the authority to direct the manner in which it is to go on until the controversyis settled. That authority is vested in [management]. . . . It is fairly vested therebecause the grievance procedure is capable of adequately recompensing employeesfor abuse of authority by [management].

Like most rules, the “work now, grieve later” rule is not absolute. There are exceptions.

Two classic and often-stated exceptions to the rule were recognized by Arbitrator Shulman in the

emphasized portions of Ford Motor I quoted above: 1) Employees are not obliged to work now and

grieve later if obedience would endanger their health and safety; or 2) if the order requires the

performance of an immoral or illegal act. In Ford Motor I, Arbitrator Shulman also stated an

employee may refuse to obey an improper order which involves some “other serious sacrifice.”


Perhaps following Shulman’s lead, another exception to the work now, grieve later” rule arises

where the nature of the order is such that compliance would result in an irreparable injury which no

later remedy could possibly redress. See Just Cause: The Seven Tests, supra, p. 178-179.

Additionally, arbitrators have excepted employees from the requirement of the “work now grieve

later rule” in situations where compliance would result in irreparable injury, where the order is

clearly and indisputably beyond the authority of the supervisor to issue, or where the order violates

the rights or domain of the Union itself. In all instances, it is the employee’s obligation to prove that

his conduct in not working was justified. See generally, Just Cause: The Seven Tests, supra.

As one would expect, there are not any reported cases discussing the application of the “work

now, grieve later” rule to an employee who disobeys an order to return to work after a thirteen-year

hiatus, and when that order is later found to be an unlawful order. The City cites OSEA v. Woodburn

School District No. 103 (ERB Case No. UP-113-89, 1990) as support for the application of the

“work now, grieve later” rule in this arbitration. In Woodburn, ERB found the District violated ORS

243.672(1)(e) when, without engaging in bargaining, it assigned special education aides the task of

performing a catheterization procedure on special education students. ERB ordered a cease and

desist order and, because that remedy was not adequate, ordered a specific monetary remedy to the

aides who performed the assigned procedure while awaiting the ERB ruling. The Association had

also requested reinstatement and back pay for one aide who refused to perform the procedure and

chose to take an unpaid leave of absence. The aide felt she was neither properly trained, nor was

it safe for her or the student for her to perform catheterization procedure. First, ERB noted that

reinstatement was not an issue because, under the terms of her leave of absence, the aide could

obtain reinstatement. Second, ERB denied back pay because the union did not carry its burden of

proof showing that her life or health was endangered.

In short, I find Woodburn is not dispositive. The case simply stands for the proposition that

the union failed to establish sufficient proof to justify a recognized exception (health and safety) to

the “work now, grieve late” rule. I find Woodburn does stand for the proposition that the “work

now, grieve later” rule is applicable to unilateral employee actions in unfair labor practice cases.


In other words, the mere commission of an unfair labor practice does not in and of itself justify an

employee’s refusal to work. Furthermore, consistent with my analysis above, Woodburn also stands

for the proposition that the employee must establish the justification for his or her refusal to follow

an order.

The issue still remains: Was Grievant justified in refusing to obey the order directing him

to return to work? I find the facts surrounding the orders requiring Grievant to return to work and

report for training are unique as demonstrated by the following findings:

1. I find the orders Grievant disobeyed were not issued in an industrial setting or aworkplace environment. One rationale for the “work now, grieve later” rule is toavoid one-person strikes or work stoppages. In the instant case, I find no workwas being performed, and the position grievant was assigned (Low HazzardInspector) did not even exist before the RTW Program.

2. I find Grievant was not an “active employee” i.e., an employee engaged in workactivities when he violated the order to return to work. Grievant had not been anactive employee of PF&R for over thirteen years.

3. I find there was no evidence of a shortage of other Fund “members” who couldbe assigned the position of Low Hazard Inspector which Grievant was chargedwith abandoning. The facts indicate that eight returnees were assigned topositions as Low Hazard Inspectors. (ALJ Finding 63a).

4. I find Grievant had completed a Fund-approved Vocational RehabilitationProgram which retrained him to be a chef. Furthermore, Grievant was workingas a chef at the time he was ordered to report to work as a Low Hazard Inspector.After completing the Fund’s Vocational Rehabilitation Plan, Grievant wouldhave been classified as capable of “substantial gainful activity.”

5. I find that at the time of the return-to-work order and the order to attend training,Grievant had opened a new restaurant in Seattle. He was overseeing the entireoperation as Executive Chef and owner, and traveling to Portland to oversee arestaurant there. Grievant had investors for his restaurant, and he was working12-14 hours a day to meet his obligations.


The first three findings above are very important. I find they illustrate that the circumstances

at the time of the City’s return-to-work orders were significantly different than those in a typical

workplace.

In an industrial setting the failure to follow a supervisory order can affect production. In any

workplace, the failure to follow a supervisory order can undermine authority. In all workplaces the

status quo before any supervisory order is some sort of “work activity” which could be disrupted

if an order is questioned. In the instant arbitration, the status quo before the orders in question were

issued was not “work activity.” At the time the orders were given, Grievant was not a City

employee engaged in any work activity. He had not worked for PF&R for more than 13 years. As

compared to the typical workplace order, I find Grievant’s failure to follow the orders did not affect

production or undermine supervisory authority. Furthermore, there was no exigency in the City’s

orders, i.e., there was no work activity that had to wait for the outcome of a grievance procedure or

for an ERB’s ruling.

Findings 4 and 5 above illustrate the uniqueness of Grievant’s situation vis-a-vis the other

Fund members who were issued return-to-work orders. Grievant had been trained by the City to

work in another vocation, and was working in the vocation for which he was trained at the time the

City ordered him to report for training and work. Having expressly approved Grievant’s

rehabilitation to another vocation, the City needed to recognize Grievant was not similarly situated

to other Fund members who had not been vocationally retrained by the City or who had not been

approved to pursue employment in other vocations.

Finding 5 also demonstrates Grievant was in a situation where compliance with the City’s

orders would result in irreparable economic harm for which there is no possible adequate later

remedy. Implicit in this finding is my sub-finding that the nature of Grievant’s obligations in

opening a new restaurant in Seattle as the owner and executive chef could not have been met while

attending a five-week training session, or by returning to work as a Low Hazard Inspector for PF&R.


I also find the City had other reasonable alternatives short of terminating Grievant’s

disability benefits and firing Grievant. For instance, the City could have suspended Grievant’s

benefits pending ERB’s ruling on the Association’s unfair labor practice complaint. If the City had

prevailed before ERB, then the City could have then terminated Grievant’s disability benefits and

fired Grievant for job abandonment. As I earlier found, the City was not in an exigent circumstance.

There was no possibility of irreparable harm to the City if it simply suspended benefits.

Additionally, the City could have filled the vacancy with the next Fund member who had not

received approval to work in another vocation. On the other hand, Grievant would have suffered

irreparable injury to his undertakings as an owner-chef had he complied with the return-to-work

order or the order requiring him to report to training.

Even Arbitrator Shulman recognized exceptions for the “work now, grieve later” rule when

ruling on cases in which there was no emergency or unusual reason for the order, when

management’s actions were clear contract violation, and management persisted in issuing the order

in the face of protests. In Ford Motor Co., 3 LA 782 (Shulman, 1946) (hereinafter Ford Motor II),

Arbitrator Shulman awarded reinstatement with back pay for two glaziers who were assigned to

painting jobs and refused. Shulman found it: "[A] bald case in which a skilled tradesman was

assigned to work wholly different from and unrelated to his classification. . . . and [management]

persisted in making the assignment over a period of time despite the aggrieved's protests and despite

the clear difference in the two classifications.” Shulman noted further that:

Nothing in [Ford Motor I, supra] justifies the disciplinary action in this case. Thatopinion dealt primarily with production employees. . . . The duty of obedience toorders may well be extended to such instances of reasonable dispute. But it cannotbe extended to assignments of work in admittedly different skilled trades constitutingdifferent seniority groups.

In the instant arbitration, the City clearly had an obligation to bargain over the “mandatory

impacts” of the RTW Program. However, the City persisted in implementing its plan even after the

Association filed an unfair labor practice complaint, the City failed to consider the fact it had

approved Grievant’s change of occupation from firefighting to chef, the City failed to consider

Grievant was working in his approved occupation and would suffer irreparable harm if he obeyed

7The City also made the same argument in UP-05-08, which was rejected by the ALJ. ERBhas not issued its decision in that matter, and I have not considered the ALJ’s findings in myOpinion and Award. I mention it here only because both parties referred to it in their briefs.


the return-to-work and training orders, and the City failed to consider it could avoid irreparable harm

to itself and Grievant simply by considering other alternatives to terminating Grievant’s disability

benefits and firing Grievant.

Based on my findings above, I find the Association proved Grievant was justified in

disobeying the City’s unlawful and unreasonable orders requiring him to return-to-work and report

for training. Accordingly, I find Grievant’s termination was without just cause.

Remedy

The stipulated issue before me at this time regarding the remedy, is: “Does the arbitrator

have authority to issue the remedy sought by the Association.” The remedy sought by the

Association is rescission of Grievant’s discharge and “reinstatement to status as disabled employee

receiving benefits through the Fund.” I find this remedy is in the nature of a “make-whole” remedy

which is typical in labor arbitrations.

The City contends the remedy sought by the association is not warranted. Furthermore, the

City contends I do not have the power to restore Grievant’s disability benefits because the City

Charter vests the Fund with the exclusive authority over Grievant’s disability benefits.

Regarding my authority, I note the City made a similar argument before ERB in UP-14-07.7

In that action, the City argued it was prohibited from bargaining over matters under the Fund’s

control because the Fund is a separate entity form the City. ERB disagreed with the City, and found:

The Fund is, in fact, a creation of the City. The Fund, the Fire Bureau, the PoliceBureau, and the Bureau of Human Resources are all departments within the City,created by the City, funded by the City, staffed in accordance with City policies, andadvised by the City Attorney's Office. The City Fire Bureau, the Fund, and HumanResources department worked together to implement the return-to-work program.In effect, the Fire Bureau and the Fund are two parts of the City's governmentalstructure.

8The October 30, 2006 order directing Grievant to report for training was on Fund letterhead,but it was signed by PF&R’s Division Chief, BHR’s Team Manager, and the Fund Administrator.The December 1, 2006 rescheduling letter was on PF&R letterhead, and only signed by PF&R’sDivision Chief. To the extent this is relevant to my determination, I find the unlawful andunreasonable orders directing Grievant to report for training were “PF&R” or “City” orders.


I find the CBA does not specifically confer any jurisdiction over the Fund on me. Although,

I certainly have jurisdiction over the City. Furthermore I agree with, and specifically adopt through

principles of collateral estoppel, ERB’s findings that: 1) PF&R, HR, and the Fund worked together

to implement the RTW Program; and 2) In effect, PF&R and the Fund are two parts of the City's

governmental structure.

Regarding the City’s actions in this case, I found the City’s orders requiring Grievant to

report for training,8 and the March 7, 2007 return to work order were unlawful and unreasonable.

Additionally, I found Grievant was justified in not obeying those unlawful and unreasonable orders.

The City took two actions based on Grievant’s refusal to obey these unlawful and unreasonable

orders: 1) The City Bureau of Fire and Police Disability and Retirement (i.e., the Fund) terminated

Grievant’s disability benefits effective April 5, 2007; and 2) The City PF&R “extinguished

Grievant’s rights as an employee and terminated Grievant from PF&R and the City of Portland.”

In fashioning a remedy in this arbitration, I considered whether it was just for Grievant to

lose his disability benefits because the Fund’s action was based on the City’s unlawful and

unreasonable orders directing Grievant to report for training. I find that, but for the City’s unlawful

and unreasonable orders, the Fund would not have had grounds to terminate Grievant’s disability

benefits. I also find the Fund’s termination of Grievant’s benefits was not simply an act of the Fund,

but part of the City’s implementation of the RTW Program. As ERB found in UP-14-07:

The City’s refusal to bargain the mandatory impacts of the return-to-work programwas part of a course of unlawful conduct that continued over several months and wascarried out by several of the City's bureaus and departments. In addition, it involveda significant number of City representatives. See ERB UP-14-07 at 35.

Based on the above, I find a just remedy in this matter requires a restoration to status quo

before the unlawful and unreasonable orders were issued. Accordingly, I find a make-whole remedy


is appropriate, along with reversing the termination of Grievant’s employment and reinstating

whatever rights Grievant had as an employee before his termination.

I find I have the authority to issue a make-whole award against the City. An arbitrator’s

source of authority is the labor agreement. As is typical in nearly all labor agreements, the parties’

CBA does not contain any provision detailing what remedy should be applied as compensation for

a particular violation. However, the absence of an explicit jurisdictional grant to fashion a remedy

does not deny the existence of an implicit grant of remedial powers. Both the courts and arbitrators

have established that if the arbitrator has jurisdiction of the subject matter, he or she has implicit

power to fashion an appropriate remedy sufficiently grounded in the contract. Hill and Sinicropi,

Remedies in Arbitration (BNA 2nd ed., 1991) at 48. See also, How Arbitration Works, supra, at

1194.

Of course, the simplest way to make Grievant whole is for me to direct the City to reinstate

Grievant as a Fund member and for the Fund to pay Grievant his disability benefits retroactive to

April 5, 2007. However, the City has taken the position that no one, including the City, has the

authority to direct the Fund to do anything.

Accordingly, I direct the City (not the Fund) to pay Grievant the amount of compensation

Grievant would have received from the Fund in disability benefits had those benefits not been

terminated by the Fund. The City shall make these payments retroactive to April 5, 2007, and these

payment shall continue to be made by the City as though Grievant had been reinstated as a Fund

member and entitled to receive disability benefits from the Fund. The City’s obligation to pay

Grievant under this Award shall cease upon the Fund reinstating Grievant as a member, and

resuming the payment of Grievant’s disability benefits.

As a final matter, I find it necessary to address an argument/statement in the City’s reply

brief. The City stated that by agreeing to submit the issues to me in the form of a summary

judgment, the City never agreed to: 1) Forgo a hearing on the issue of an appropriate remedy; 2)

Forgo cross examining Grievant: or 3) Accept Grievant’s untested assertions via declaration on

matters outside the limited scope of summary judgment.


Regarding the City being unable to cross examine Grievant, I find I have not relied on any

statements or assertions of Grievant other than the statements in Grievant’s October 2, 2009

Declaration (to which to City made no objection) identifying certain documents, and those

statements in the City’s redacted version of Grievant’s November 13, 2009 Declaration which was

appended to the City’s reply brief. In short, my decision is based only on the undisputed facts

presented to me. I find there is no reason for the City’s to cross examine Grievant.

Regarding the City's understanding that a hearing on the issue of the appropriate remedy is

necessary, I note the following. The Association requested a make-whole remedy, and I have

granted a make-whole remedy. Make-whole remedies are typical in arbitrations and widely accepted

by the courts. As part of my award, I am retaining jurisdiction to resolve any implementation issues

regarding the remedy portion of my award. I fail to understand what can be gained from a hearing

on the appropriate remedy.

Nevertheless, based on the City's contention, I stayed the effectiveness of the remedy portion

of my original award for 14 days to allow the City to: 1) proffer facts it proposed would be elicited

at a hearing; and 2) state the relevance of those facts to my decision awarding a make-whole remedy.

On January 19, 2010 I received a letter from City’s counsel contending a hearing on the remedy was

necessary to implement the award. The Union was provided an opportunity to respond.

After considering the City’s submittal, I find the City did not proffer facts which necessitate

a hearing at this time. The City did request clarification of my January 8, 2010 Opinion and Award.

This Revised Opinion and Award addresses the City’s request. See footnote 1.


REVISEDAWARD

1. For the reasons stated herein, the grievance is GRANTED.

2. The City shall reverse the termination of Grievant’s employment and reinstate whateverrights Grievant had as an employee before his termination.

3. The City shall pay Grievant the amount of compensation Grievant would have receivedfrom the Fund in disability benefits had those benefits not been terminated by the Fund. TheCity shall make these payments retroactive to April 5, 2007, and these payment shallcontinue to be made by the City as though Grievant had been reinstated as a Fund memberand entitled to receive disability benefits from the Fund. The City’s obligation to payGrievant under this Award shall cease upon the Fund reinstating Grievant as a member, andresuming the payment of Grievant’s disability benefits.

4. I retain jurisdiction to resolve any implementation issues regarding the remedy portion ofthis award.

5. In accordance CBA Article 14, my fees and costs will be split evenly between the parties.

Respectfully submitted this 21st day of January 2010.

William F. ReevesArbitrator

Certificate of Service: The undersigned hereby certifies that on the 21st day of January 2010, a true and correct copyof this REVISED Opinion and Award was emailed to the following: Barbara J. Diamond and Lory J. Kraut.

by

William F. Reeves

Digitally signed by William F. Reeves DN: cn=William F. Reeves, o, ou=Labor Arbitrator, [email protected], c=US Date: 2010.01.21 17:09:19 -07'00'

in the matter of the arbitration between: )...

Documents