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Title: State of Oregon, Department of Administrative Services and Oregon Public Employees Union, Local 503, SEIU
Date: November 19, 1993 
Arbitrator: Luella E. Nelson 
Citation: 1993 NAC 107

 

In the matter of arbitration between:


Oregon Public Employees Union, Local 503, SEIU

                            and

State of Oregon, Department of Administrative Services, on behalf of the Department of Forestry

RE:       Downer et al, Grievance #GP00993,

AAA Case No. 75 390 00153 93

 

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

This Arbitration arises pursuant to Agreement between Oregon Public Employees Union, Local 503, SEIU ("Union"), and State of Oregon ("State"), Department of Administrative Services, on behalf of the Department of Forestry ("Agency" or "Forestry"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

            At a hearing held on October 13, 1993, in Salem, Oregon, the parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties submitted the matter on closing oral argument.

APPEARANCES:

            On behalf of the Union:

                        Charlene Sherwood, Esquire, 135 SW Ash Street, 600 New Market West, Portland, OR  97204-3540

            On behalf of the Agency:

                        Janis B. Weeks, Labor Relations Manager, Labor Relations Section, Personnel and Labor Relations Division, 155 Cottage Street NE, Salem, OR   97310

ISSUE

                        Did the Agency violate Article 90.3C--Work Schedules (Forestry), Section 10, when it paid Grievants .5 in addition to their regular rate of pay rather than 1.5 for worked rest periods?  If so, what is an appropriate remedy?

RELEVANT SECTIONS OF AGREEMENTS

1991-93 AGREEMENT

                ARTICLE 32.3--OVERTIME (ODOT Coalition)

                ...

                Section 5.  Payment of Overtime.

                                ...

                                (c)           Forestry

                                                ...

                                                (2)  Overtime will be paid in cash whenever funds are available, except an employee shall have the option of maintaining a maximum of eighty (80) hours of compensatory time for authorized overtime. ...

                ...

                ARTICLE 58--HOLIDAYS

                ...

                Section 4.  Work on a Holiday.  Employees required to work on days recognized as holidays which fall within their regular work schedules shall be entitled, in addition to their regular monthly salary, to compensatory time off or to be paid in cash as provided in Articles 32.1-32.6, Overtime.  Compensato­ry time off or cash paid for all time worked shall be at the rate of time and one-half (1-1/2).  The rate at which an employee shall be paid for working on a holiday shall not exceed the rate of time and one-half (1-1/2) his/her straight time rate of pay.

                ARTICLE 90.3C--WORK SCHEDULES (Forestry)

                ...

                Section 10.  ...

                                When the supervisor determines the rest [period] cannot be taken, the employee shall be allowed com­pen­sation at the rate of time and one-half (1-1/2), to be taken or accrued as provided in Article 32.3, Overtime.

 

                ARTICLE 90.5--WORK SCHEDULES (Special Agencies Coalition Except Water Resourc­es, Exec Dept Accounting Div, Justice, OPB, Revenue, OSSC, BOLI, Health Related Licensing Boards)

                ...

                Section 4.  ...  Rest periods shall be taken so far as practicable in the middle of such working periods and considered as time worked for pay purposes.

                ...

                LETTER OF AGREEMENT

                Article 32.5 - Overtime (Special Schools)

                The State will continue to observe the Special Schools past practice of paying one-half (½) hour of overtime to Dorm Counselors who are unable to take their rest breaks.  Further, should scheduling of LPNs and/or Child Care Workers result in their being unable to take breaks in the future, those employees will also be covered by this practice.

1981-83 AGREEMENT

                ...

                ARTICLE 42.2C - REST BREAK DIFFERENTIAL (OSH only)

                Psychiatric Security Aides and Psychiatric Aides at OSH whose job assignments do not routinely allow for two uninterrupted 15 minutes rest breaks each workday, shall receive a pay differential of five dollars ($5.00) per month.

 

                ARTICLE 42.2F - REST BREAK DIFFERENTIAL (OSCI)

                Correctional Officers, Corporals or Sergeants at OSCI whose job assignments do not routinely allow for two uninterrupted 15 minutes rest breaks each workday, shall receive a pay differential of five dollars ($5.00) per month.

                ...

                ARTICLE 90.3A - WORK SCHEDULES (ODOT except DMV)

                ...

                Section 11. ...

                                When the supervisor determines the rest period cannot be taken, the employe shall be allowed compensatory time at the rate of time and one-half to be taken at the end of the day or on another day, at the supervisor's discretion.  ...

                ...

                ARTICLE 90.3C - WORK SCHEDULES (Forestry)

                ...

                Section 10.  ...

                                When the supervisor determines the rest period cannot be taken, the employe shall be allowed compensation at the rate of time and one-half, to be taken or accrued as provided in Article 32.3C, Overtime.

1979-81 DEPARTMENT OF TRANSPORTATION AGREEMENT

                ...

                ARTICLE 18 - REST PERIODS

                ...

                Section 4.  [Same as Article 90.3A, Section 11, of 1981-83 Agreement]

1979-81 FORESTRY AGREEMENT

                ...

                ARTICLE 18  REST PERIODS AND LUNCH BREAKS

                All employes in the bargaining unit shall receive a rest period of fifteen (15) minutes in every four hours working time or major fraction thereof, to be taken insofar as practicable in the middle of such working periods.  An employe who is directed to work during his/her lunch break shall have such time counted as time worked. 

 

FACTS

            Inmate Crew Coordinators supervise, train, and oversee the work of prison inmates.  Inmates plant trees, fight fires, and do stand management out of two camps--South Fork and Shutter Creek.  Coordinators work four 10-hour shifts at South Fork and five 8-hour shifts at Shutter Creek.  Because of the need to oversee inmates, they work through their rest periods.  The Agency did not pay Coordinators for worked rest periods until late 1992.

            The South Fork Camp steward raised the issue of missed rest periods in early October 1992.  In response, the Agency instructed Coordinators to list the missed rest periods as overtime on their time sheets.  The Shutter Creek Coordinators received pay for missed rest periods at the .5 rate from the point at which the Agency began paying for them.  The South Fork Coordinators received pay for worked rest periods for October and November at the 1.5 rate, resulting in an extra hour's pay daily (1.5 x 2 x 20).  In December 1992 and January 1993, the Agency deducted the 1.5 pay previously paid for worked rest periods, then paid for the time at the .5 rate.  In January 1993, the Agency also paid overtime for worked rest periods at the .5 rate retroactively for two years.

            On January 28, 1993, the Union filed a group grievance, as follows:

            On [12/31/92] the members of the group discovered that they were paid for missed rest breaks at one-half (½) their normal hourly rate when the Agency was unable to relieve them for their rest periods rather than at the rate of time and one-half (1-½) as required in the contract.  Moreover the effected [sic] workers at South Fork Camp had money deducted from their overtime pay for October and November when they were correctly paid time and one-half (1-½) for missed rest periods.

The Agency denied any violation of the Agreement, on the grounds that "The effected [sic] workers have been paid at the rate of time and one-half (1-½)...."  In appealing the response, the Union further elaborated on its theory of the grievance, as follows:

            Agency policy to pay workers who are not relieved for rest breaks at one-half (½) the regular rate of pay on regular work days and not at all on overtime days is a clear violation of Article 90.3C, Section 10.  Moreover, the practice of the Highway Division, another agency of the Oregon Department of Transportation, is to provide compensatory time at the rate of time and one-half (1-½) for rest periods not taken ....

BARGAINING HISTORY OF ARTICLE 90.3C

            Until 1981, individual agencies had separate contracts to supplement the Central Agreement negotiated between the Union's predecessor and the State.  In 1981, the parties agreed to eliminate the separate agency contracts.  Instead, the Central Agreement incorporated provi­sions for unique operating needs in the various constituent agencies, as identified in bargaining within five coalitions.  The parties numbered the separate provisions within Articles according to the coalition and agency covered.  Forestry was part of the Transporta­tion Coalition, which also included the Highway Division ("Highways"), Department of Motor Vehicles ("DMV"), and the Parks Department ("Parks").  All provisions de­nom­i­nated .3 (e.g., 90.3) covered employees at agencies in the Transportation Coalition; within that Coalition, all provisions denominated C (e.g., 90.3C) covered Forestry employees only.

            The Union's 1981 bargaining proposals included the following language for Parks and Forestry:

            If an employe's supervisor determines that a rest period and/or meal period cannot be taken, the employe shall be allowed compensatory time at the rate of time and one-half (1½) to be taken at the end of the day or on another day, at the employe's discretion.

The first management counter-proposal to address worked rest periods covered only Department of Transportation ("ODOT") employees.  Toward the end of bargaining, the State proposed the current language for Forestry.

            Jim Hunter served as the chief spokesman for the Transportation Coalition.  He recalled that Forestry was particularly interested in greater flexibility in scheduling breaks.  Hunter believed Forestry supervisors informally compensated employees for worked rest periods by giving them addi­tional overtime pay or informal time off at the .5 rate.  In caucus, the Forestry team resisted the Union's proposal, but also claimed it was rare to miss breaks.  Hunter reminded them of the advan­tage of reaching agreement before the contract went to the central table.  He also commented that, if missed breaks were rare, 7½ minutes would not hurt them.  He did not share his calculations with the Union.

PRACTICE AT OTHER AGENCIES

            The Garcia Grievance at Highways

            In October 1992, Highways employee Tony Garcia filed a grievance under Article 90.3A and B.  Garcia had worked through his rest periods and had been ordered to take the worked rest periods as com­pen­satory time off at the end of his shift.  The Union and Garcia agreed to withdraw the grievance in return for a memo encouraging managers to work out mutually-agreeable times to take compen­satory time.  That memo explained the compensatory time off provisions as follows:

            Third, breaks are limited to 15 minutes. If the supervisor requires the employee to work through a break, then, upon the supervisors approval the employee may leave 22½ minutes prior to the end of their [sic] work shift.  If work activities proceed through both breaks, the combined break time is thirty minutes.  In this case, the end of the work shift may be reduced by 45 minutes.

            The Oregon State Hospital ("OSH") Boiler Operator Grievance

            In January 1991, the Union filed a group grievance on behalf of Boiler Operators at OSH.  The grievance alleged that employees were not allowed to take a break in or near the work area without interruption, contrary to the Agreement.  As a remedy, the grievance requested that the affected employees "be paid one-half (1/1) [sic] hour of overtime daily."  The State denied having deprived employees of breaks.  The Union eventually withdrew the grievance without prejudice.

            The MacLaren School Arbitration

            The Union filed a grievance over missed breaks at the MacLaren School in 1989.  At the time, the MacLaren School language provided for two 15-minute rest periods daily, but did not explicitly address compensation for missed breaks.  The School routinely did not provide breaks for the affected employees for many years.  Arbitrator Howell Lankford found that management could deny employees breaks only for unforeseen reasons, such as emergencies or sick leaves.  As a remedy, he ordered payment at "time-and-a-half for that time" for any future missed breaks.

            Following this Award, the School generally provided coverage to permit employees to take breaks.  Julie Kettler, the Union's Grievance Specialist assigned to the School, testified that her predecessor believed the School was paying 1.5 above base pay for any missed breaks.  In preparing for this arbitration, Kettler requested information on the manner of payment for missed breaks.  The School sent her an individual time sheet showing it paid .5 above base pay for a missed break.  Kettler knew of no complaints or grievances from School employees over this method of payment.

            The OSH Grievance

            On September 19, 1991, OSH Steward David Miller filed a group grievance on behalf of employees who were unable to take their lunches and breaks because of short staffing.  The grievance sought one hour's overtime and changes in staffing patterns to avoid recurrences.  The Union wrote a letter informing Miller that the staff would receive an hour of overtime.  OSH's records do not reflect payment on this basis or refer to an agreement to make such payments.

                                                      POSITION OF THE UNION

            The facts are not in dispute.  The only issue is the proper means of calculating payment for worked rest periods.  The contract language is clear and unambiguous, and clearly specifies time and one half.  To apply that language, the Agency should have multiplied the minutes worked by 1.5 to get the proper pay.  It is unnecessary to resort to rules of interpretation.  Other rules of construc­tion reach the same conclusion--that compensation should be at 1.5 in addition to the base salary.

            The Arbitrator should avoid an interpretation that creates absurd or nonsensical results.  The Agency's position results in both.  It is absurd for an employee's overtime pay to differ depend­ing on whether the extra time worked occurs during breaks, at lunch, or at the end of the shift.  That result was not intended by parties.  It also violates the Agreement, which says overtime should be paid at 1.5 regular pay.  Under the Agency's scenario, employees are being paid at the .5 rate.

            The Arbitrator must construe the Agreement as a whole.  Article 90.3 must be construed in con­junction with Article 32, which provides that breaks are considered time worked.  If an employee works during a break, that time is tacked onto the end of the work day.  Instead of a 10-hour day, employees actually work 10 hours and forty minutes.  They receive overtime after 10 hours, which should be compensated at 1.5 time.  The Agency is borrowing straight time from the base salary and applying it to overtime worked to make 1.5 time.  That means the break time is no longer compen­sated.  This result is a clear contract violation.  Base salary includes paid break time, which is considered work time.

            The Arbitrator must avoid a forfeiture.  The Agency's method of payment violates Wage and Hour Laws.  The State must provide paid rest periods of at least 10 minutes.  Borrowing from base pay to reach 1.5 pay results in unpaid breaks, in violation of law.

            Past practice under the same language also supports the Union's position.  Under the ODOT language, for at least 11 years, worked rest periods were compensated at 1.5 time.  Garcia demon­strates the method of calculating 1.5 times straight time--for a 15-minute break, the employee got 22.5 minutes off.  This practice has applied regardless of whether the break was paid or unpaid.  The ODOT practice is the most relevant comparison because the language is similar, except that Forestry employees have the option of taking cash or compensatory time.

            The OSH language does not provide particular compensation for worked rest periods.  However, the OSH grievance was resolved by paying 1 hour for 40 minutes' missed break.  The Special Schools Letter of Agreement also shows compensation for worked rest periods at 1.5 rate.  The OSH boilermaker grievance was a different situation, in that there was no allegation that breaks were not provided.  This may have been an anticipatory grievance.

            Following the MacLaren decision, despite the lack of similar language in the MacLaren Agency contract, em­ployees are to be paid at 1.5 times straight pay.  Here, the language clearly requires payment at 1.5 rate, so the method of calculation should not be an issue.  Before the MacLaren decision, if an employee worked through breaks, the employee worked 30 minutes more in a day for no additional compensation.  The only way for the Union to get the benefit of the bargain was for employees to receive 1.5 pay.  Until it began preparing for this arbitration, the Union did not know that MacLaren has paid employees at .5 rather than 1.5 time.  No justification exists for half-time pay.  At a minimum, employees should receive their base salary.  The implementation is contrary to the Award, and was not agreed to by the Union.  However, any grievance would be untimely.

            The former provision for OSH and OSCI, Article 42.2, was a very different situation.  That language, which is no longer in the Agreement, applied in two limited situations where there was no specific language.  Forestry has specific language.  Also, the intervening MacLaren decision, in effect, wrote the 1.5 rate into this Agreement for all employees, whether specific language is there or not.

            The difference in language between Article 90.3 and Article 58 does not require different pay for worked rest periods.  The holiday language is more inclusive, but the content does not differ.  There has never been any question that employees receive pay for two breaks in their base salary.  The par­tic­ular language, "in addition to regular salary," is not there, but the Agency has never contested that regular salary includes paid breaks.  Some contracts have more cumbersome or more cum­u­lative language.  For example, Article 90.5, Section 4 specifies that rest periods are considered time worked for pay purposes.  The Forestry language does not contain that specific sentence, but factually breaks are considered time worked for pay purposes.  The additional language says nothing different sub­stan­tively; the intent is exactly the same.

            Management did not discuss the method of calculating pay for worked rest periods at the table; the only discussion on that subject was in a separate caucus.  Hunter did not tell the Union that Forestry employees would be paid 7.5 minutes.  He was unclear on the practice.  No practice of 7.5 minutes existed at Forestry.  No one knows what the practice was there.  The practice at ODOT was to receive 22.5 minutes for missing a 15-minute break.

            The Union is not trying to get in arbitration what it did not get in negotiations.  The Union did not fail to get what it asked for; it is simply trying to figure out how to calculate it.  If the Union had tried to bargain language saying Forestry employees would be compensated at 1.5 time, whether in cash or compensatory time, and ended up with no contract language, that would be relevant.  Here, the Union proposed language identical to ODOT, and got better language than ODOT in that it was more flexible because employees could choose cash or compensatory time.  The 1.5 rate language came from the old ODOT agreement.  It is therefore relevant to look at how ODOT interpreted the 1.5 calculation, as in Garcia.

            The language is clear; the calculation is simple.  It makes no sense to start borrowing paid time from other work to equate to 1½ time.  By doing so, employees work hours without compensation.

POSITION OF EMPLOYER

            The Union asked for something in 1981 and did not get it.  It asked for the ODOT language of compensatory time at 1.5 rate at the end of day.  It did not get that language from Forestry.  Forestry agreed to compensation at 1.5 time.  The reference to the overtime provision simply refers to whether employees get cash or time off.  It does not refer to the section of the Overtime article that says this is the base for overtime calculations.

            Forestry set itself apart from ODOT throughout bargaining.  The Forestry language differs from the old ODOT language.  The practice at Forestry was to pay 7½ minutes; that came forward in the language at the end of negotiations.

            The State tried to end the practice under the Letter of Agreement for Special Schools.  That practice does not exist at other Special agencies.  To get agreement, the State agreed to memorialize that practice for one particular agency; it did not give special life to Forestry's provision.  The MacLaren case involved specific language for that agency within the whole Agreement.  It was important to Arbitrator Lankford that the agency had included many "shalls" in its obligation to grant rest breaks, but was not meeting them.  He therefore wrote a penalty into the contract.  That penalty is pay at 1.5 time; it does not specify that the pay is "in addition to straight time."  MacLaren has paid the additional 7.5 minutes, consistent with the Forestry practice.  No grievance has been filed.

            The Agreement must be construed as a whole.  The holiday language specifically provides for the result the Union seeks here.  "In addition to regular pay," employees receive 1.5 pay for working a holiday.  Had the parties intended the same result here, they would have included that language.  There was no agreement for Forestry to pay in that way for worked rest periods.

            The Agency's interpretation is not absurd in the context of negotiations.  The overall conditions in 1981 are relevant.   The parties agreed to different practices at OSH, OSCI, Forestry, ODOT, and Special Schools.  They agreed to have no penalty for worked rest periods at Dammasch, EOSH, and other Special Agencies.  The Agreement as a whole sup­ports the conclusion that pay for 22½ minutes would be absurd.

OPINION

PRELIMINARY MATTERS

            The applicable standards for contract interpretation are well established.  Where the language is clear and unambiguous, the Arbitrator must give effect to the parties' intent.  That is so even where one party finds the result unexpected or harsh.  Extrinsic evidence cannot vary clear contract language.  It can demonstrate a latent ambiguity in the language, or show that the parties later agreed to modify their agreement.  However, the party asserting the latent ambiguity or agreement to modify bears the burden of demonstrating the ambiguity or agreement.

            Where the contract language is unclear or ambiguous, the Arbitrator may look to extrinsic evidence of the parties' intent.  Such evidence includes bargaining history, contemporaneous statements regarding the agreement reached, practice in implementing the agreement, and post-contract clarifications and modifications.  The interpretation urged by a party is less persuasive where that party proposed and withdrew language that would have achieved the result sought.  Past prac­tice under the contract is persuasive where the practice is clear, consistent, and known to the Union.  Although practice under other contracts with the same language may be instructive, it is not binding on a non-party to that practice.  Where two possible interpretations exist, the Arbitrator must prefer the interpretation which avoids harsh, absurd, or nonsensical results.  Any ambiguity not removed by other rules of interpretation may be resolved by construing the language against its proponent.

            The MacLaren decision did not purport to require compensation at time and one half for worked rest periods as a general rule under this Agreement.  In that case, the Agreement contemplated that management would afford employees their breaks.  When they did not, Arbitrator Lankford had to fashion an appro­priate remedy.  He looked to the closest analogous provision, which was the rate paid to other employee classifications.  In this case, the parties specifically considered and addressed the possibility of worked rest periods.  Those provisions therefore govern the appropriate compensation for such events.

THE MERITS

            The parties could have agreed to provide a 50% hourly premium for working through breaks.  They made no pay provisions for missed breaks in some agencies, and agreed to only token compensation for OSH and OSCI employees who missed breaks.  However, they also retained the existing ODOT language.  Similar to that language, the Forestry language grants employees "com­pen­sation at the rate of time and one-half" for working through a break.  The question is whether, in context, the language provides a lesser benefit than the ODOT language.

            The omission of an "in addition to" clause contrasts with the Holidays provision.  In interpreting other contracts, some arbitrators have looked for "in addition to" clauses before requiring the payment of premium pay in addition to straight time for employees who work holidays.  Here, however, the ODOT language results in premium pay in addition to straight time for employees who work through breaks.  Like the Forestry language, the ODOT language does not include an "in addition to" clause.  Thus, in context, the omission of this clause from the Forestry language merely adds ambiguity to the provision.

            The bargaining history sheds little light on the parties' intent.  Assuming arguendo that Hunter correctly under­stood and relied on the practice in Forestry, he did not tell the Union that the State's proposal was intended to perpetuate that practice.  Given the similarity between the State's proposal and the existing ODOT language, ODOT's practice provided an alternative ap­proach.  As the proponent of the language, the State had the obligation to make it clear which practice it intended to perpetuate thereby.

            The parties' intent becomes more clear when one considers that Forestry employees may elect to take the worked rest period as compensatory time.  Suppose, for example, that an employee on a 4-10 shift worked through both breaks and took compensatory time at the end of the day.  Under the State's scenario, the employee would be entitled to leave 20 minutes early, but would miss 40 minutes in breaks.  In effect, the employee would "donate" 20 minutes' work.  Such a result is at odds with ordinary expectations and cannot be lightly inferred.

            The method of implementing the MacLaren Award does not suggest the parties intended to pay employees only .5 extra for working through breaks.  The case arose in a different agency, with different contractual language.  No evidence exists that the Union received notice of the method of implementing the Award until very recently, or that it agreed that this method of implementation was consistent with the Agreement or the Award.

            In summary, the more reasonable interpretation of the disputed language is that it affords employees 1.5 pay in addition to straight time as compensation for missed rest periods.  Having paid a lesser benefit, the State must make employees whole.  Employees have already received .5 above their base pay for worked rest periods.  They must be compensated for the difference between that pay and the contractual pay.  Consistent with the provisions of Article 32.3, this compensation may take the form of cash or compensatory time.  The matter is remanded to the parties to determine the specific sums or time due to each employee.  The Arbitrator retains jurisdiction over this remedy and any disputes arising therefrom.

 

AWARD

            1.         The Agency violated Article 90.3C-Work Schedules (Forestry), Section 10, when it paid Grievants .5 in addition to their regular rate of pay rather than 1.5 for worked rest periods.

            2.         As a remedy, the Agency shall provide additional compensation to Grievants for worked rest periods, at a rate representing the differ­ence between the compensation already received and the contractual rate of 1.5.  Such compensation shall be provided consistent with Article 32.3.

            3.         The Arbitrator remands the matter to the parties to determine the specific compensation due to each employee under this Award.  The Arbitrator retains jurisdiction over the remedy portion of this Award and any dispute arising therefrom.

 

            DATED:  November 19, 1993

                                                                                                           

LUELLA E. NELSON - Arbitrator

 

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