A Kentucky arbitrator recently addressed an often-occurring scenario in public safety agencies – when a supervisor is absent, must the employer fill the vacant position with another supervisor, thereby incurring overtime liability in the process, or can it use lower-ranking employees to fill the vacancy on an out-of-classification basis.
The case arose in the Fort Thomas, Kentucky Fire Department. A lieutenant and captain each suffered knee injuries. Neither was expected to return to work on a full-time basis. When the City assigned firefighters to the vacant officer positions on an out-of-classification basis, a grievance was filed by Local 1928 of the International Association of Fire Fighters.
The Arbitrator rejected the City’s “management rights” argument, and found that the City’s actions violated a long-standing and enforceable past practice. The Arbitrator concluded that the City had never before made out-of-classification assignments in such circumstances, and had always used fire officers to fill in for other officers who were on long-term absences. By way of remedy, the Arbitrator ordered the City to make whole the fire officers who would have received the assignments had the City followed its past practice.
City of Fort Thomas, Kentucky, LAIG ¶6189 (Adamson, 2004).