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Title: State of Oregon, Department of State Police and Oregon State Police Officers' Association
Date: April 2, 1993 
Arbitrator: Luella E. Nelson 
Citation: 1993 NAC 108

 

In the matter of arbitration between:


Oregon State Police Officers' Association

                           and

State of Oregon, Department of State Police

RE:      Grievance of John Lozano

             GS 22094

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

            This Arbitration arises pursuant to Agreement between OREGON STATE POLICE OFFICERS' ASSOCIATION ("Association"), and STATE OF OREGON, DEPARTMENT OF STATE POLICE ("Department"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

            Hearing was held on February 5, 1993, in Springfield, Oregon.  The parties had the opportunity to examine and cross-examine witnesses, introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about March 3, 1993.

APPEARANCES:

            On behalf of the Association:

                        Daryl S. Garrettson, Esquire, Aitchison, Hoag, Vick & Tarantino, 1313 NW 19th, Portland, OR   97209.

            On behalf of the Department:

                        Josephine Hawthorne, Esquire, Assistant Attorney General, Department of Justice, 100 Justice Building, Salem, OR   97310.

ISSUE

            The parties were unable to agree on a stipulated issue.  They stipulated that the Arbitrator would formulate the issue or issues to be decided after a review of their respective statements of the issue and the record evidence.  The Association would formulate the issues as follows:

            1.         Has the State applied the operational needs criteria unreasonably or arbi­trarily in violation of Article 14.7 of the parties' collective bargaining agreement when the State denied the request of the employees in the Springfield Detectives Office to go to a 4-10 work schedule as provided for in said Article 14.7?

 

            2.         If yes, what is the appropriate remedy?

The Department would formulate the issues as follows:

            1.         Has the Association proven by a preponderance of the evidence that in denying the requested 4-10 schedule, the supervisor applied operational needs unreasonably or arbitrarily?

 

            2.         If the Association has proven that the supervisor acted unreasonably or arbitrarily, should the 4-10 schedule be remanded to the Department for reevaluation of the operational needs criteria?

Upon her review of the matter, the Arbitrator formulates the issues as follows:

            1.         Did the Department apply operational needs criteria unreasonably or arbitrarily, in violation of Article 14.7 of the Agreement, when it denied the requested 4-10 work schedule for employees in the Springfield Detectives Office?

 

            2.         If so, what is the appropriate remedy?

RELEVANT PROVISIONS OF AGREEMENT

AGREEMENT EFFECTIVE JULY 1, 1991 - JUNE 30, 1993

                ARTICLE 14 - HOURS OF WORK

                ...

                14.5  Work Schedule(s)

                        A tentative 28-day work schedule shall be posted seven (7) calendar days in advance of the beginning of the 28-day work period except for employees on itineraries.  The Department is not bound in any way by this schedule and no liability or penalty payments accrue if this schedule changes at any time due to emergencies. ... [S]chedule changes due to events with advance notice would not be considered emergencies and "irregular hours" may apply if the individual did not receive seven (7) calendar days notice. ....

                ...

                14.7  4-10 Shift

                        14.7.1  The Department may deny a 4-10 request or discontinue an approved 4-10 shift without employee vote if it determines the shift may/has adversely affect(ed) a Department operational need.  An operational need includes but is not limited to:

                                14.7.1.1.  Need to meet Department program and/or priorities for the work group; or

                                14.7.1.2.  Need to meet Department workload or productivity standards without increasing overtime, compensatory time off, penalty pay, staffing or other direct or indirect monetary costs; or

                                14.7.1.3.  Need to meet Department standards for coverage for planned and unplanned absences to respond to workload needs; or

                                14.7.1.4.  Need to meet Department standards for response to emergencies, disasters, or extraordinary circumstances.

                ...

                        14.7.4  The vote may be conducted only if thirty-percent (30%) of the eligible employees in the division work group request such a vote.  A minimum of a majority of all eligible employees in the work group is required for starting or stopping the 4-10 shift.  The vote must occur in April, and if approved, the 4-10 shift will become effective upon the beginning of the first twenty-eight (28) day work cycle after July 1 of the same year. ...

                ...

                        14.7.6  If employees in an affected division work group have affirmatively requested their preference for a 4-10 shift by the voting process, the Association representative of the work group will present a plan for such a 4-10 shift to the immediate supervisor(s) of the work group.  The supervisor(s) will notify the Association representative if the plan conflicts with any operational need.

                        14.7.7  If the request to move to a 4-10 shift is initially denied, or has been discontinued, the affected work group may provide additional information to the immediate division super­visor(s) that the 4-10 shift will not, or has not, adversely impacted operational need, for the supervisor's reconsideration.

                        14.7.8  A denial of initial implementation or discontinuation of a 4-10 schedule may be grieved but shall not prevent a supervisor(s) from implementing his/her decision pending resolution of the grievance.  The basis for any grievance in this regard will be whether or not the supervisor(s) applied operational needs criteria unreasonably or arbitrarily.

MEMORANDUM OF UNDERSTANDING ("MOU") DATED JUNE 22, 1992

                ...

                        2.     Under Article 14.7 of the Collective Bargaining Agreement, employees in a work group may vote to work a 4/10 shift subject to the Employer's reasonable operating needs.  If the 4/10 schedule for certain members of the work group is not consistent with reasonable operating needs, the Employer has the right to deny the 4/10 schedule for the whole work group if such denial is based upon reasonable operating needs and/or to compel certain em­ploy­ee(s) to work a 5/8 work shift.  If the Employer denies the 4/10 schedule for the entire work group because certain employee(s) must work a 5/8 shift, the Association has the right to file a grievance challenging that the denial of the 4/10 schedule is not based on reasonable operating needs.  It is not the Employer's intention to deny a 4/10 schedule for other than operating needs.  ....

                ...

                        5.     Where 4/10 schedules are being worked and scheduling for training is necessary, the parties agree if the training is of more than one day in duration, the Employer may change the employee's 4/10 work shift to a 5/8 work shift with seven (7) days advance notice for the entire week to accommodate the training without incurring irregular hours or overtime liability.  ....

FACTS

            This case involves a new provision, Article 14.7.  That Article implements an optional "4-10" schedule (consisting of four 10-hour days of work per week) as an alternative to a standard "5-8" schedule (consisting of five 8-hour shifts per week).

            Briefly, the 4-10 option applies on a work unit basis.  Non-probationary employees who are not on an itinerary[1] may vote each April whether to implement a 4-10 schedule.  If a majority of employees in a work unit vote for 4-10, the local Association representative prepares a proposed work schedule and presents it to the supervisor.  The supervisor may grant or deny 4-10 based on whether it adversely impacts "operational need."  If the supervisor denies 4-10, the Association may present a revised schedule or other information on the issue of "operational need."  The Department may discontinue 4-10 if it adversely affects an operational need.

THE SPRINGFIELD CRIMINAL INVESTIGATION WORK UNIT

            The Criminal Investigation work unit at the Springfield Patrol Office (herein called the "Springfield Office") investigates Priority 1 crimes (e.g., homicide, kidnapping, rapes, armed career criminals, major felonies).  It also takes some referrals from the Childrens Services Division ("CSD"), which it receives by mail; the Lane County Sheriff's Office takes most of the emergency CSD cases.  The Springfield Office has recently asked to receive a larger percentage of the CSD cases.  The Sheriff's Office is primarily responsible for responding to 911 calls.

            In April 1992, the Springfield Office consisted of seven detectives[2] supervised by Sergeant Michael Houlihan.  Three of those detectives (David Codding, Guy Dorman, and Dean Perske) were on itinerary.  Of the remaining four, one (Michael White) was assigned to arson and paid primarily out of funds from the State Fire Marshal's office.  Houlihan could assign White to general detective duties only if the Department picked up his salary for the time spent.  Houlihan had three officers (Gus Bradford, Roger Hoffman, and John Wood) available for general detective work.[3]  All four non-itinerary detectives were scheduled to work Monday through Friday, 8 a.m. to 4 p.m.

            Hoffman was assigned to the SWAT team.  His participation in SWAT required three days per month for training, plus sporadic call-outs.  The net result of this work was that he spent roughly 50% of his time away from general detective work.  Bradford spent over half of 1991 assigned to investigate homicides in Portland.  The Springfield Office has assigned other detectives to work at other locations in the past.  It has also declined requests to reassign detectives on occasion.  Bradford testified there were times in 1991 when there were no detec­tives in the office due to a combination of special assignments, vacations, compensato­ry time, and other temporary absences.

            Detectives must sometimes appear in court.  Court is usually not in session on Mondays and Fridays.  Bradford testified that detectives often must work more than an 8-hour day when involved in a trial.  He recalled reporting to the District Attorney's ­­­­office around 7:30 a.m., starting the trial around 9 a.m., and remaining until 5 or 5:30 p.m. for a major homicide trial.  Houlihan testified that trials start at 8:30 or 9 a.m., and that the grand jury never begins before 8 a.m. or remains in session past 5 p.m.  He testified that in June 1992, the grand jury was in session Monday through Friday.

            In April 1992, Houlihan conducted a survey of the shift options at four local police agencies of similar size.  All four were then on a 5-8 schedule, and expressed concerns over adequate coverage under 4-10.  The Lane County Sheriff's office expressed an interest in implementing 4-10 if it acquired one more general law detective to supplement its current complement of four general law detectives and three detectives on special assignment.

THE SPRINGFIELD 4-10 REQUEST

            In April 1992, the Springfield Office voted for 4-10.  Bradford prepared a proposed 4-10 schedule and submitted it to Houlihan.  At the time, White preferred to remain on a 5-8 schedule.  The proposed work schedule therefore called for White to remain on a 5-8 schedule and the other three general detectives to work 4-10 schedules.  The schedule called for the following allocation:

Detective Monday Tuesday Wed Thursday Friday
Bradford 6am-4pm 6am-4pm 6am-4pm 6am-4pm
Hoffman 6am-4pm 6am-4pm 6am-4pm 6am-4pm
White 8am-4pm 8am-4pm 8am-4pm 8am-4pm 8am-4pm
Wood 7am-5pm 7am-5pm 7am-5pm 7am-5pm

           Houlihan objected to the 6 a.m. starting time and expressed a preference for covering more hours in the day.  He also objected to excepting White from the 4-10 schedule.  Based on his objections, Bradford prepared a revised schedule.  The revised schedule called for the following allocation:

Detective Monday Tuesday Wed Thursday Friday
Bradford 7am-5pm 7am-5pm 7am-5pm 7am-5pm
Hoffman 6am-4pm 6am-4pm 6am-4pm 6am-4pm
White 7am-5pm 7am-5pm 7am-5pm 7am-5pm
Wood 8am-6pm 8am-6pm 8am-6pm 8am-6pm

Houlihan again objected to starting shifts before 8 a.m.  He further objected to the limited coverage on Mondays and Fridays.  Houlihan denied the request for 4-10 on June 23, on the following basis:

            I have reviewed their 4/10 schedule as submitted and conclude that the personnel coverage that currently exists with the 5/8 plan would not be adequate under the 4/10 concept to meet the current needs with reference to work load or productivity standards without the possibility of increasing overtime compensation.

 

            I feel that staffing on Mondays and Fridays under the 4/10 plan is an issue of concern.  Currently, there are three general law detectives available Monday through Friday, 8:00 AM to 4:00 PM.  Under the proposed 4/10 plan, there would be one general law detective on Monday and two general law detectives on Friday.  One of the general law detectives on Friday is a Swat team member.  In 1991, Detective Hoffman was absent on Swat assignment for a total of 394.5 hours.  Considering this detective worked a total of 1,855 net hours during 1991, his Swat training accounts for approximately 21% of his duty time, not including other available leave used.  In total for 1991, his leave summary indicates 942.5 hours of leave taken inclusive of the 394.5 hours of Swat operation hours.  At 942.5 hours taken, this detective was available for general law assignment 50% of the time.

 

            In summary, with the three general law detectives, one of whom is assigned to Swat, I do not feel the 4/10 plan would provide the basic need for response and coverage on a day to day basis, taking into consideration assignments, emergencies, and unplanned calls for service.  I must take into consideration that during vacations and other leaves of absence, there would be less personnel available on the 4/10 plan than on the current 5/8 plan.

            ...

            Detective Bradford's Availability

                        (1991)

            Net hours:                                               1843.0

            Other leave:                                             656.5

            Homicide investigation:                              865.0 (Portland area)

            This Portland assignment is an example of unforeseen [sic] calls for service.

            Detective Wood's Availability

                        (1991)

            Net hours:                                               2052.0

            Other leave:                                                    467.5

            Houlihan testified he understood he was to look at three things in deciding whether to grant a 4-10 request:  (1) the impact on networking with other agencies; (2) whether there were gains from 4-10; and (2) whether 4-10 was "equal to or better than" 5-8.  He understood that, if he could not come to a conclusion on these issues, he was to look at denying the request for 4-10.

            In Houlihan's view, the staffing on 4-10 was not "equal to or better than" 5-8.  He testified that most of the agencies with whom the Springfield Office interacts work Monday through Friday, from 8 a.m. to 5 p.m.  Detectives had not asked to start early in the past to get their work done.  Further, he believed any need to start work early could be handled on 5-8 by a voluntary schedule adjustment.  If the office went to 4-10, he saw more of a need for hours after 5 p.m.  No supervisors are present at 6 a.m., and he sees no need to come in that early to do reports.

            Because of White's arson assignment and Hoffman's SWAT duties, the proposed 4-10 schedule essentially would result in only one detective working on Mondays and Fridays.  Houlihan testified that he was concerned that he might have to call someone in if an emergency occurred on Monday or Friday.  He did not review the history of emergency call-outs before making his decision.  He acknowledged that such call-outs are infrequent, and do not often occur during the day.

            Bradford testified there is some advantage in starting work before 8 a.m.  An early start allows uninterrupted time to prepare reports.  It also permits the detective to call members of the public before they leave for work, and to arrest suspects while they are asleep.  He acknowledged that working past 5 p.m. offers similar advantages.  He is aware of other offices of similar size that work a 4-10 schedule.  He was called out on five occasions in 1992.  Of those, three occurred on Sundays, when overtime would have been applicable in any event; one was on a Friday when he was scheduled to take a day of comp time; and the fifth was on a Thursday.

            Association President James Botwinis described other Department offices that work on a 4-10 schedule.  Salem has four detectives, of whom none are SWAT team mem­bers.  The Medford office has two detectives.  Roseburg has two general law detectives, of whom one has been on special assignment elsewhere for eight or nine months.  Grants Pass has one general law detective.

            In denying the grievance, the Department relied on:

            the adverse affect [sic] the shift would have on the [Springfield Office] work group's programs or priorities; its need to meet the work load or productivity standards without increasing overtime, compensatory time off, penalty pay, staffing, etc.; its need to meet Department standards for coverage for planned and unplanned absences; and its need to meet Department standards for response to emergencies, disasters, or extraordinary circumstances.

HISTORY OF ARTICLE 14.7

            Article 14.7 arose out of a pilot program that began in 1987.  The parties instituted 4-10 schedules at five locations.  Based on their experience under the pilot program, the parties extended the 4-10 option unit-wide in the 1991-93 Agreement.

            Association President James Botwinis testified that during negotiations, the spokespersons for both parties expressed a preference for permitting 4-10 schedules.  The parties agreed to conduct five joint labor-management training sessions around the state to explain the provisions of the new contract, including the 4-10 provisions.  Those sessions were held on March 3, 4, 10, 12, and 19, 1992.  Following those training sessions, the parties met to resolve unanswered questions identified in the Agreement, resulting in the 1992 MOU.

            The training sessions were videotaped.  The portions of the videotapes dealing with 4-10 were introduced in evidence over the Department's objection.  The principal speaker at each session was Will Aitchison, the Association's attorney and spokesperson.  Cathy Schuh, the Department's spokesperson in bargaining, also spoke at times, as did Lt. Col. Hillman, the head of the Support Services Bureau.  On several occasions, Schuh disagreed with positions stated by Aitchison.[4]

            Aitchison commented at each training session that the philosophy on both sides of the table was in favor of allowing 4-10.  Hillman commented in the March 4 session that if 4-10 would work in a unit, there was no reason why it should not be allowed to happen.  At various sessions, Aitchison commented that if an "operating need" existed under both 5-8 and 4-10, then it might not be a basis for denying a 4-10 request.  Aitchison acknowledged in the March 12 session that one unresolved question was whether it was proper to deny a 4-10 request based on a problem that existed on both 4-10 and 5-8, but that was more severe on a 4-10 shift.  At the March 19 session, Schuh followed up on this remark by commenting that the decision was not necessarily driven by comparing the shift employees currently worked versus the one to which they would go.

POSITION OF THE ASSOCIATION

            The Department is not required to determine that 4-10 was equal to or better than 5-8.  It must determine that 4-10 adversely affected an operational need.  The Department must act rea­son­ably and not arbitrarily in reaching that decision.

            After a vote in favor of 4-10 and the preparation of a proposed schedule, the burden shifts to the Department.  The Department must review the proposed schedule and determine whether it adversely affects an identified operational need.  If so, it may disallow the change.  However, the Department's ability to deny 4-10 is limited by two factors.  First, the Department must identify the adverse effect; second, the denial must be reasonable and not arbitrary.

            The joint training sessions support this reading of the Agreement.  They establish that the parties supported implementation of 4-10 and intended to limit denial of 4-10.  They further establish that the negative impact must be demonstrably different from any resulting from 5-8.  They reflect that the decision to deny must be reached rationally and based on factual evidence.

            Houlihan required employees to prove that 4-10 was equal to or better than 5-8.  That is not what the Agreement requires.  This shift in burden is contrary to both the express language of the Agreement and the intent of the parties.  Houlihan was required to identify adverse effects.  The parties intended to give the 4-10 plan a trial run and see if it works.  The Department failed to do this.  Houlihan admittedly denied 4-10 because he didn't think it was better than 5-8.  The burden placed on the Association tainted the whole process.  Houlihan raised a series of possibilities and demanded that the Association prove that those undesirable effects would not occur.  He made no determination of any actual impact.

            No evidence exists that any increase in overtime was probable.  Under either schedule, there is no coverage on weekends and evenings, when call-outs occur.  The evidence contradicts any need for Monday and/or Friday coverage.  Detectives get their cases by mail.  No evidence exists that 4-10 would have caused any problems on the one occasion in 1992 when the Springfield Office networked with another office that worked 5-8.  The Salem office, with which the Springfield Office networks most frequently, works 4-10.  The MOU allows the Department to place an individual on a 5-8 shift for the week in which training occurs.  There is therefore no adverse effect under a 4-10 plan beyond that existing under a 5-8 schedule for the SWAT team.

            Houlihan did not review the proposed 4-10 schedule and determine that reasonable operating needs were adversely affected.  Instead, he based his decision on the Association's failure to convince him that 4-10 was equal to or better than 5-8.  That was not the Association's job  He used an impermissible standard for his decision.  He violated the Agreement and acted unreasonably and arbitrarily.  The grievance should be sustained.

            The limited remedy urged by the Department would render Article 14.7.8 a nullity.  If the Department is allowed to think up new reasons to justify the contract violation, the employees are left with nothing.  If the Department fails to base its decision on whether its operating needs are or will be adversely affected, the 4-10 shift should be implemented.  That was the parties' original intent.  If or when reasonable operating needs or circumstances change, Article 14.7.1 allows the Department to revert to 5-8 if it reaches its decision reasonably and non-arbitrarily.  Unsupported anticipation of mere possibilities does not provide justification for thwarting implementation of 4-10 as occurred here.  The parties clearly intended to implement 4-10 shifts and see what happens.

POSITION OF DEPARTMENT

            The Department's statement of the issue focuses on the particular contractual language providing for grievances under Article 14.7.  The Association's statement of the issue can be read to imply that the Department must demonstrate that its supervisor's application of operational needs was neither unreasonable nor arbitrary.  The Association must prove by the preponderance of the evidence that the supervisor's application of operational needs criteria was unreasonable or arbitrary.

            Article 14.7 does not give the Arbitrator discretion in formulating any appropriate remedy.  That Article permits neither the Association nor the Arbitrator to evaluate and apply the Department's operational needs to grant or deny 4-10.  Changes in operational needs could have made the Association's proposed schedule appropriate or inappropriate now.  The Arbitrator does not know whether the operational needs cited at the time are or were the only applicable operational needs.  If the Arbitrator finds the Association met its burden of proof, the appropriate remedy is to remand the matter to the Department to apply its current operational needs in a manner that is neither arbitrary nor unreasonable.  This is the remedy for which the parties contracted.

            The information on the training video is irrelevant.  Article 14.7 is unambiguous.  Its language requires no interpretation.  It devolves authority on the Department to determine if the requested shift adversely affects operational needs.  The language requires no evidence of post-contractual spin doctoring by the Association's attorney.

            In stating that there was a preference for 4-10, Aitchison gave the best possible twist to language the Association proposed.  The Department was not going to pick a fight with him in a public arena, and did not need to pick a fight.  The contractual language provides no preference for 4-10.  Had the Association negotiated for such a preference, either Article 14.7 itself or the bargaining proposals would have shown it.  Aitchison's comments cannot add to or modify the clear language.  The Association cannot get concessions for which it did not bargain at all or which it failed to secure through bargaining.

            Houlihan based his decision on operational needs.  He determined that the proposed 4-10 schedule would not give the office coverage he wanted and that he would accrue overtime in ob­taining the coverage he desired.  He had already determined that other agencies with which his unit worked were on 5-8 schedules.  It did not meet his operational needs to have detectives available in the hours before 8 a.m., as proposed by the schedule.

            Bradford's perceptions about the efficacy of 4-10 schedules are irrelevant.  The Association must show that Houlihan's application of operational needs in June 1992 was unreasonable and arbitrary, not that 4-10 shifts work elsewhere or that the proposed schedule is workable.  Applying the ordinary dictionary definition to these terms, the Association must show that Houlihan's application of operational needs was absurd, capricious, without reason.

            The Association, and even the Arbitrator, may believe 4-10 shifts are workable alternatives to 5-8 schedules.  They may disagree with the Department's application of operational needs, and believe 4-10 is a good idea and worth a try.  They may believe the Department may not need a detective in the patrol office on Friday afternoons.  None of this is proof that the application of operational needs was unreasonable or arbitrary.  Different ideas about how to operate and about the efficacy of a 4-10 shift are not proof that the decision was arbitrary or unreasonable.

            The Department need not prove that its application of operational needs is better than the proposed 4-10 schedule.  The Department need only articulate a reason that is reasonable and non-arbitrary; it need not be the best reason or an infallible reason.  Once the Department articulates such a reason, as Houlihan did in his memo, the Association must prove the reason is absurd, unreasonable, capricious, arbitrary.  The Association has not met this burden of proof.

            The Association's evidence and argument regarding operational needs do not prove that Houlihan's application of operational needs criteria was unreasonable and arbitrary.  It merely shows either Bradford's hypothesis of how the office could work under a 4-10 schedule or the Association's disagreement with the Department's decision.  All the Association needed to do in this case was have Houlihan testify that he had no basis or an absurd reason for his decision and that he made it arbitrarily or on caprice.  Having failed to produce that evidence, the Association did not prove that Houlihan's application of operational needs was arbitrary or unreasonable.

            Since April 1992, the work unit has shrunk to two detectives.  The proposed 4-10 schedule is no longer applicable to the work unit as it now exists.  No reason exists why this grievance was arbitrated when the two remaining detectives could conduct another vote and submit a new proposed schedule that addresses the current work force and workload.  This would address changing cir­cum­stances.  Any present imposition of the 1992 schedule is inapposite given current circumstanc­es.

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.  Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning.  The Arbitrator must avoid an interpretation which tends to nullify or render meaningless any part of the Agreement if another reasonable interpretation gives effect to all provisions.

            Evidence of bargaining history cannot be used to vary clear contract language.  However, it can be used to demonstrate a latent ambiguity in the language.  Evidence of post-contract events is admissible to establish that the parties later agreed to clarify or modify the Agreement.  However, the parties must have clearly and unequivocally evidenced such an intent.

            In this contract interpretation case, the Association bears the burden of establishing that the Department violated the Agreement.  The basis for a grievance under Article 14.7 is that the super­visor "applied operational needs criteria unreasonably or arbitrarily."  The Agreement does not specify the applicable level of proof required.  Absent a contractual requirement to apply a higher level of proof, the Arbitrator will require the Association to establish by a preponderance of evidence that the Department violated the Agreement as alleged.

            The duty to act in good faith is inherent in every contract.  Even where the Agreement grants sole discretion in a matter to one party, that party must exercise its discretion reasonably and without arbitrariness.  This Agreement explicitly incorporates this good faith obligation in Article 14.7.8.

THE MEANING OF THE CONTRACT

            The Agreement is clear and unambiguous.  The Department must grant a proposed 4-10 schedule unless it identifies an adverse impact that the schedule "may" have or "has" had on "operational needs."  The detailed provisions of Article 14.7 require a dialogue between the supervisor and Association representative on the operational needs of that work unit.  Thus, a denial does not end the matter.  The supervisor must notify the Association of the adverse impact on operational needs.  The Association, in turn, may modify the proposed schedule or submit other information to address the identified adverse impact.

            The interchange required by Article 14.7 would be futile unless the supervisor in good faith identified both the operational needs and the predicted adverse impact.  The Arbitrator must presume that the supervisor identified all of the applicable operational needs.  Any other presumption would encourage the Department to withhold relevant information from the Association in violation of its good faith obligation.

            The articulated concerns do not end the inquiry into the question of "reasonableness" and "arbitrariness."  After all, it would be a rare witness who would admit that he or she took any action for no reason, for an admittedly absurd reason, or based solely on caprice.  The Association may establish the unreason­ableness or arbitrariness of the supervisor's decision by other evidence bearing on the alleged adverse impact.

            "Operational needs," in context, means more than that the staffing will differ from that under a 5-8 system.  The impact of that difference must interfere with the ability to accomplish operational objectives.  Were the test otherwise, "operational need" would be mere surplusage.  The inquiry thus focuses on the reasonableness of the Department's conclusion that the identified impact (1) "may" occur and (2) was adverse, rather than merely different from 5-8.

            The limited bargaining history does not suggest in any way that a latent ambiguity existed in the language of Article 14.7.  Both the parties' conduct in meetings following execution of the Agreement and the limited changes in the later MOU are consistent with the above interpretation of Article 14.7.  Aitchison consistently said at the training sessions that both sides' philosophy was in favor of 4-10 and that 4-10 should not be denied if an operational problem was the same under both 4-10 and 5-8.  Schuh just as consistently made no objection to this interpreta­tion.  In contrast, in those areas where Schuh expressed disagreement, Aitchison's comments in later training sessions reflected the difference of opinion between the parties.  The MOU contains revisions reflecting the areas identified in the training sessions as areas for further discussion.

THE MERITS

            Houlihan expressed concern about reduced coverage on Mondays and Fridays.  Other adverse effects articulated in rejecting 4-10 included the ability to meet "work load or productivity standards;" the risk of increased overtime, comp time, and penalty pay; reduced coverage for absences; and reduced ability to respond to emergencies, disasters, etc.[5]

            The pro­posed 4-10 schedule certainly would have provided less coverage on Mondays and Fridays than a standard 5-8 schedule.  This is a foreseeable impact from 4-10 on any office that is open five days per week.  The risk of reduced coverage on some days, standing alone, is therefore only the beginning of the inquiry.  The Department did not dispute the evidence that this work unit has functioned without a general detective in the office on some days.  The practice of making lengthy temporary assignments to other units contributed to this experience.  This Department's willingness to make such temporary assignments, in combination with the non-emergency nature of most of the work, rebuts any suggestion that this work unit had an operational need to schedule more than one general detective on Mondays and Fridays.

            The remaining articulated concerns involved valid operational needs.  On this record, the adverse effects were largely susceptible to amelioration under other provisions of Article 14.  The Department need give only seven days' notice to change work schedules in non-emergency situations, and may change schedules "at any time" in an emergency.  If the burden were on the Department to establish a reasonable belief that these adverse effects would ensue, there is some reason to doubt that the Department would have made that showing.

            However, the burden is on the Association to establish that the Department was unrea­son­able or arbitrary in concluding that the identified adverse effects may occur.  This broad language permits the Department to plan on a worst-case basis.  The Department may consider not only what has occurred in the past, but what could occur in the future.  Some tension exists between this broad discretion and the parties' desire to encourage work units to try 4-10.  However, that tension is inherent in the language chosen by the parties.  If individual supervisors demonstrate excessive hesitance to accept 4-10 schedules, the parties can address that in future bargaining.

            For all of the above reasons, it is concluded that the Department did not violate the Agreement.  Therefore, the grievance is denied.

AWARD

            The Department did not apply operational needs criteria unreasonably or arbitrarily, in violation of Article 14.7 of the Agreement, when it denied the requested 4-10 work schedule for employees in the Springfield Detectives Office.

            DATED:  April 2, 1993

                                                                                                             /s/ Luella E. Nelson               

                                                                                                 LUELLA E. NELSON - Arbitrator


[1]           Employees on itinerary set their own hours in cooperation with their supervisor.  They may schedule themselves for a 4-10 work week if their supervisor agrees.

[2]           An eighth officer (Marc Anderson) was on Patrol in April 1992.

[3]           There have been some personnel changes since April 1992.  Codding and Bradford are now the general law detectives.  Hoffman has transferred to Patrol.  White is now working in McMinnville.  At the time of the hearing, White's position had not been filled.  Wood has transferred to Astoria.  The Department decided not to replace Wood.  Anderson has gone from Patrol to the itinerary position formerly filled by Codding.

 

[4]           For example, in the March 3 session, Aitchison suggested a work unit could have mixed 4-10 and 5-8 schedules, using the voluntary hours adjustment in the Agreement.  Schuh interjected that there was some individual flexibility, but the contract language presumed the majority vote would determine the hours worked by the entire unit.  In later sessions, Aitchison acknowledged that the parties would have to discuss and clarify this issue.  Schuh also objected to Aitchison's suggestion that a supervisor and work unit could agree to begin 4-10 earlier than the period provided in the Agreement.  In a later session, Schuh specifically informed those present that they could not request to vote early or implement 4-10 early.

[5]           Houlihan also objected to the early starting times in the proposed 4-10 schedule.  However, neither he nor the Department mentioned this in articulating the reasons for denying 4-10.

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