FEDERAL MEDIATION AND CONCILIATION SERVICE

IN THE MATTER OF
THE VOLUNTARY ARBITRATION BETWEEN

LORAIN PROFESSIONAL
FIREFIGHTERS, IAFF LOCAL 267,

Union,

-and- GR: Delayed Payroll System

FMCS No.: 100819-59238-8

CITY OF LORAIN,

Employer.

______________________________________________________________________________

SUMMARY ARBITRATION OPINION AND AWARD

APPEARANCES:

Susannah Muskovitz
Faukner, Muskovitz & Phillips, LLP
820 W. Superior Ave, Ninth Floor
Cleveland, OH 44113

Jon M. Dileno
Zashin & Rich Co., LPA
55 Public Square, 4 th Floor
Cleveland, OH 44113
 ISSUE

DOES THE NEW DEFERRED PAYROLL SYSTEM VIOLATE

THE CONTRACT, AND IF SO, WHAT SHOULD BE THE REMEDY?

The parties have requested the arbitrator to submit a Summary Opinion and Award on an

expedited basis, followed by a full Award later. A hearing was held on September 15, 2010 and

comprehensive post-hearing briefs were submitted.

The Union protests the implementation of a deferred payroll system, where platoon

firefighters have had 10.2 hours of pay deducted since August 13, 2010. This will continue until

December 17, 2010. Previously, pay was provided every two weeks, with prospective pay for the

final Friday in the pay period. The new system requires an additional two weeks of deferred pay.

The prior payroll process has existed since the 1980s. The new payroll system was instituted to

address a severe budget deficit.

The Union maintains that articles 2, 30, 14, 32 and 34 requires a continuation of the previous

system. A violation of the continuation of past practices language is also asserted.

The Union asks for the reinstatement of the pay-to-date payroll system and a make whole remedy.

The City denies a violation of the Wages and Hours of Work Articles. It further denies a

violation of the past practice article because the alleged practice lacks mutuality. It suggests the

practice is mere “happenstance”. The Employer also contends that the Union has acquiesced to prior

operational changes. The City argues that it has the management right to make the change in payroll.

Finally, the City avers that the prior policy violated the law by improperly compensating employees

for work not performed.

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 The Union’s contractual arguments, except for past practice, are rejected. The Employer’s

management rights and payroll arguments are also rejected. The result in this case is determined by

the past practice article.

Article 32 provides that, “All present benefits and past practices in effect prior to this

Agreement and not covered by, in conflict with, or superseded by this Agreement shall remain in full

force and effect, unless and until changed in writing by mutual agreement of the parties.”

The Ohio Supreme Court in Ass’n of Cleveland Fire Fighters, Local 93, IAFF v. City of

Cleveland, 99 Ohio St. 3d 476 (2003) has accepted that a past practice is binding if it is unequivocal,

clearly enunciated and followed for a reasonable period of time as a fixed and established practice

accepted by both parties.

The prior payroll practice was unequivocal, clearly enunciated and followed for almost thirty

years. It fits the definition of a past practice that must be followed by Article 32. The City, however,

argues that the practice lacks mutuality and is mere happenstance.

The Common Law of the Workplace, the Views of Arbitrators (St .Antoine, Ed. BNA, 2nd ed.

p. 89) notes that “The most authoritative treatment (of past practices) is provided by Arbitrator

Mittenthal in “Past Practice and the Administration of Agreements” (Zack, Arbitration in Practice,

BNA). Mittenthal states at p.183 that there must be acceptability of a practice and the parties “must

regard it as the correct and customary means of handling a situation. Such acceptability may

frequently be implied from long acquiescence in a known course of conduct.”

Here, the Employer has acquiesced to the prior payroll system for almost 30 years. The

elements of a binding past practice have been met. Further, Mittenthal notes at p.206 that mutuality

of a practice is more likely to be inferred where employee benefits are involved as opposed to basic

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management functions. The authors of the Common Law of the Workplace at p.91 agree with this

approach.

The prior payroll system provided the benefit of payroll being paid on current basis and even

prospectively for the final Friday of the payroll period. The new system requires firefighters to lose

this benefit and to even have monies deducted from their wages as the new system is implemented.

Because a benefit is involved, mutuality can be inferred.

The Grievance should be granted.

AWARD

The Grievance is granted. The prior payroll system for firefighters shall be reinstated and

the firefighters shall be made whole. I will retain jurisdiction for 60 days for problems, if any, with

the remedy.

Mark J. Glazer
Mark J. Glazer, Arbitrator

September 29, 2010