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Title: State of Oregon, Oregon State Hospital, and  Oregon Public Employees Union 
Date: November 20, 1995 
Arbitrator:
Luella E. Nelson
Citation: 1995 NAC 113 

IN ARBITRATION PROCEEDINGS  

PURSUANT TO AGREEMENT BETWEEN THE PARTIES

 

In the Matter of a Controversy

                 between  

Oregon Public Employees Union,

                 and

 

State of Oregon, Oregon State Hospital.

RE: Grievance of John Lozano, GS 22094

 

ARBITRATOR'S

OPINION AND AWARD

 

 

 

                                                                                            

This Arbitration arises pursuant to Agreement between Oregon Public Employees Union ("Union"), and the State of Oregon, Oregon State Hospital ("Employer"), 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 October 12, 1995, 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, Suite 600, Portland, OR   97204 

On behalf of the Employer: 

Stephen Krohn, Esquire, Assistant Attorney General, Department of Justice, Labor Relations Section, 100 Justice Building, Salem, OR   97310 

              ISSUE

 The parties were unable to agree on a statement of the issue or issues to be decided.  The Union would formulate the issue as follows:

Whether or not the Employer violated Article 40 Section 3 of the 1993-95 Collective Bargaining Agreement when it denied Mr. Lozano pay for the entire swing shift on November 22, 1994.  If so, what is the appropriate remedy?

The Employer would formulate the issue as follows:

Whether or not the Employer violated Article 40 Section 3 of the 1993-95 Collective Bargaining Agreement.  If so, what is the appropriate remedy?

The parties stipulated that the Arbitrator would formulate the issue or issues to be decided.  Having reviewed the record, the Agreement, and the parties' statements of the issue, the Arbitrator formulates the issue as follows:

Whether or not the Employer violated Article 40 Section 3 of the 1993-95 Collective Bargaining Agreement when it denied Grievant show-up pay for the swing shift on November 22, 1994.  If so, what is the appropriate remedy?

 

      RELEVANT SECTIONS OF AGREEMENT

ARTICLE 32 - OVERTIME

Section 1.  Definition of Time Worked.  All time for which an employee is compensated at the regular straight time rate of pay, except standby time and penalty payment(s) (Articles 34 and 40) ... shall be counted as time worked.

Section 2.  Overtime Work Definition.  Overtime for employees working a regular work schedule is time worked in excess of eight (8) hours per day or forty (40) hours per workweek. ...

Notwithstanding the foregoing eligibility criteria, in cases where the application of reporting time changes or a "penalty" payment is appropriate, the rate of compensation shall be the straight time hourly rate of pay.

Section 3.  Compensation.  All employees shall be compensated for overtime at the rates set out in Section 4.  No application of this Article shall be construed or interpreted to provide for compensation for overtime at a rate exceeding time and one-half (1-1/2), or to effect a "pyramiding" of overtime and penalty payments.

....

  ARTICLE 32.2C,D,E,G,H - OVERTIME  (OSH, DSH, EOTC, EOPC, EOSS)

Section 1.  This Article is intended only to provide a basis for the calculation of overtime and none of its provisions shall be construed as a guarantee of any minimum or maximum hours of work or weeks of work to any employee or to any group of employees.

...

Section 3.  Overtime shall be distributed as equitably as feasible among qualified employees customarily performing the kind of work required, and currently assigned to the work section in which the overtime is to be worked.

....

  ARTICLE 40 - PENALTY PAY (All Coalitions Except ODOT)

Section 1.  Call Back Compensation.

(a) Call back is an occasion where an employee has been released from duty and is called back to work prior to his/her normal starting time.  On such occasions, the employee's scheduled or recognized shift shall be made available for work, except that the Agency shall not be obligated to work the employee more than twelve (12) consecutive hours, excluding meal periods, of combined call back time and regular shift time.

(b) An employee who is called back to work outside his/her scheduled work shift shall be paid a minimum of the equivalent of two (2) hours pay at the overtime rate of pay computed from when the employee actually begins work.  After two (2) hours work, in each call back situation, the employee shall be compensated at the appropriate rate of pay for time worked.

(c) This provision does not apply to telephone calls at home or overtime work which is essentially a continuation of the scheduled work shift.

Section 2.  Reporting Compensation.

(a) Reporting time is the time designated or recognized as the start of the daily work shift or weekly work schedule.

(b) An employee's reporting time may be changed two (2) hours earlier or two (2) hours later, or less, without penalty, if the employee is notified a minimum of twelve (12) hours before the next regularly scheduled reporting time.  If the employee's reporting time is changed without proper notice, the employee shall be entitled to a penalty payment of fourteen dollars ($14.00).

(c) An employee's reporting time may be changed more than two (2) hours, earlier or later, without penalty, if the employee is notified a minimum of five (5) workdays in advance.  If the employee's reporting time is changed without the required notice, the employee shall be entitled to a penalty payment of twenty-one dollars ($21.00).  The penalty payment shall continue until the notice requirement is met or the employee is returned to his/her reporting time(s), whichever occurs first.

Section 3.  Show-Up Compensation.  An employee who is scheduled for work and reports for work, except for situations addressed in Articles 123.1 - 123.6, Inclement Conditions, and is released from work shall be paid the equivalent of two (2) hours pay at the appropriate rate.  When an employee actually begins his/her scheduled shift, the employee shall be paid for the remainder of the scheduled shift.

Part-time hourly paid employees, who actually begin their scheduled shift, shall be paid for the remainder of their scheduled shift.

....

  ARTICLE 90 - WORK SCHEDULES

Section 1.  A work schedule is defined as the time of day and the days of the week the employee is assigned to work.  A regular work schedule is a work schedule with the same starting and stopping time on five (5) 8-hour days. ...

Section 2.  Except as may be specifically stated in Articles 90.1-90.6, the workweek is defined as the fixed and regularly recurring period of 168 hours during seven (7) consecutive 24-hour periods and the workday is the 24-hour period commencing at the start of the employee's assigned shift and shall remain fixed at that period for the whole of the workweek, ....

  ARTICLE 90.2C - WORK SCHEDULES (OSH)

Section 1.  All full-time employees shall be placed on a regular schedule of five (5) consecutive days of work and two (2) consecutive days off, ...

...

Section 3.  If an eligible employee is required to work two (2) consecutive shifts he/she shall be paid overtime for the full second shift regardless of the calendar day in which it is worked.

....

FACTS

Grievant is a Mental Health Technician 1 in the forensic in-patient program.  He seeks penalty pay for a full swing shift on November 22, 1994, under Article 40, Section 3.  The Employer asserts that he was entitled only to overtime pay for a portion of that shift.

Grievant regularly worked the day shift, from 6:30 a.m. to 3:00 p.m., in Ward 50C.  On November 22, 1994, he agreed to work an overtime swing shift in Ward 50J, from 2:30 p.m. to 11:00 p.m.  After working his day shift in Ward 50C, Grievant reported to Ward 50J at 2:30.  There, he found the staff in a debriefing meeting regarding the level of patient privileges.  He testified his vote would not have counted in that process, and the room was full.  Rather than attend the meeting, he decided to answer phones.  He also helped a patient meet with a visitor.  At 3:15, the supervising nurse told him he was not needed,[1] and sent him home.  He was initially offered one hour of overtime for the time he spent in Ward 50J; he eventually was paid two hours' overtime pay.

The Hospital posts a sign-up sheet on which employees may volunteer to work additional shifts.  Volunteers are called from that list and offered the opportunity to work extra shifts (or portions of shifts) as the need arises.  Employees can decline overtime without penalty, and are not disciplined if they fail to work overtime after being scheduled to do so.  Grievant routinely signed up for swing shifts on his regular work days, and for day or swing shift on one of his days off.  Until the incident that gave rise to this grievance, Grievant had never been sent home earlier than originally scheduled on an extra shift.  He had been scheduled to work overtime for less than a full shift at times.  In that event, he has been paid only for the number of overtime hours actually scheduled and worked.  He testified that most extra work is for an entire shift; he is told at the time of scheduling the overtime if it will be for less than a shift.

BARGAINING HISTORY

Before 1979, the Employer and the predecessor to the Union had a collective bargaining agreement covering only the Employer.  The 1970-72 Agreement contained the following penalty pay provisions:

Section 7.  REPORTING TIME.

An employee who is scheduled for work and reports to work, and there is not work available for him, may be excused from duty but shall be paid at his regular rate for the shift of work scheduled.

Section 8.  CALL-IN TIME.

Employees, except those employees being compensated for remaining on-call, who are called to work outside their regular shift shall be compensated for a minimum of two (2) hours, unless such time is essentially a continuation of their work day.

In 1975, the parties modified Section 8 to apply to "Full time employees who are eligible for overtime under FLSA, except those employees being compensated for remaining on-call...."  The penalty pay provisions otherwise remained unchanged.  A March 1979 contract added three other health care insti­tutions to the bargaining unit.  That contract modified and re-numbered both penalty pay provisions, to read as follows:

ARTICLE 11 - REPORTING TIME

An employee who is scheduled for work and reports to work, and there is not work available for him or her, may be excused from duty but shall be paid at his or her regular rate for the shift of work scheduled.  Nothing herein contained is intended to deny the Employers the right to require the employee to perform any available work during the period for which he or she is being paid.

ARTICLE 12 - CALL-IN TIME

Employees called to work outside their regular shift shall be compensated for a minimum of three (3) hours at the straight time rate except for those employees being compensated for stand-by duty, it being understood that this provision does not apply to overtime worked when it is essentially a continuation of their workday.

In July 1979, the Executive Department of the State of Oregon and the predecessor to the Union nego­tiated a contract covering numerous agencies, including the Employer.  Its overtime provisions in­cluded language identical to the current relevant language of Article 32.  Article 55 of that Agreement, dealing with Penalty Pay, contained the first Show-Up Compensation provision in evidence, which was identical to the current Article 40, Section 3.  The Call Back Compensation and Reporting Compensation provisions were similar to the relevant language of the current Article 40, Sections 1 and 2.

State Labor Relations Administrator Peter De Luca was involved as a Union staff member in 1981 nego­tiations, primarily on the ODOT coalition.  The ODOT coalition took the lead on premium pay issues because it encountered more premium pay situations than most agencies.  De Luca was unaware of any spe­cific proposal by management to modify the language of Article 40, and the language was not changed.

De Luca's recollection was that the parties spent some time discussing how the various kinds of premium pay interrelated.  In this regard, the parties discussed the purpose of show-up pay, which was to make sure people who came to work got some pay.  He recalled that the parties related show-up pay to employees' regular scheduled shift.  In his view, show-up pay does not apply to a situation where an employee who is already at work remains to work an additional shift.  He also does not believe show-up pay would apply where an employee reported for an overtime shift on a day when the employee was not other­wise scheduled to work.  His view is that show-up pay is to compensate employees for their regular schedule; employees who work extra shifts are compensated with overtime, but not with show-up pay.

PAST INTERPRETATIONS OF ARTICLE 40

The only arbitration decisions in evidence regarding Article 40 concerned the interpretation of "reporting compensation" provisions applying specifically to the ODOT unit.  Those provisions were sim­ilar to the current Article 40, Section 2, with two exceptions.  Reporting pay was defined as "the time designated or recognized as the start of the daily work shift or schedule" (as opposed the "daily work shift or weekly work schedule"), and reporting pay was tied to the call back compensation provision instead of a set dollar figure.

In a 1986 decision, Arbitrator Edward Heid concluded that the phrase "normal starting time" for pur­poses of call back compensation had the same meaning as the phrase "the time designated or recog­nized as the start of the daily work shift or schedule" for purposes of reporting compensation.  He found the parties intended both terms to define the same event--the beginning of the employee's regular workday.  The regular workday, in turn, is defined in Article 32 as eight hours of straight time.  His conclusion also rested on the scheduling provisions of Article 90.3.  He concluded that call-back pay and reporting pay only applied when an employee's beginning work time changed from the existing regular schedule.  He also found that Article 32 expressed an intent to coordinate the application of Articles 32 and 40.  He also found that the reporting time provisions assured employees of compensation for short notice of schedule changes, by forcing management to choose between the guaranteed overtime for call-back pay or the penalty pay for reporting compensation.

In a 1991 decision, Arbitrator Sherman Kellar agreed with Arbitrator Heid's analysis of the meaning of the pivotal phrases in the ODOT call-back and reporting time provisions.  He found that penalty pay applies when an employee's reporting time changes from the regular schedule with less than five days' notice, but not when the reporting time returns to the regular schedule.

POSITION OF THE UNION

The governing provision in this dispute is Article 40, not Article 32.  Article 32 governs pay for time worked, whereas Article 40 governs pay for time not worked.  The purpose of Article 40 is to com­pen­sate employees for the inconvenience of showing up for a scheduled shift and not being allowed to work that shift.  Article 40 is not limited to a "regularly" scheduled shift; it applies to any scheduled shift.  For Article 32 to apply, one would have to read the word "regularly" into the language of Article 40.

At the point when Grievant agreed to work the extra shift, that became a "scheduled" shift for him.  The second sentence of Article 40 Section 3 applies because Grievant actually started work on the shift.  He met all three requirements of that provision.  He is therefore entitled to pay for the entire shift.

The type of schedule involved here arises only in round-the-clock operations.  This is not an ex­ten­sion of the work day; it is assignment to a scheduled shift.  Penalty pay does not apply in situations where the employee agrees to work only part of a shift as overtime.  It applies where, as here, the em­ployee agrees to work an entire shift and is sent home early.  This has never happened to Grievant before.

Arbitration decisions at ODOT do not govern the result in this case.  Because of issues specific to ODOT, that agency has carved out its own penalty pay provision.  Unlike Article 40 Section 3, the ODOT con­tractual provisions speak of a "normal" starting time and a "daily" or "weekly" schedule.

De Luca's testimony is not helpful to deciding the issue.  He was not involved in negotiating the language initially, and it has not changed since.  His only involvement in any discussions of the language concerned the ODOT language, not the general Article 40 language.  In addition, his testimony was il­log­ical.  The purpose of show-up pay is to compensate employees for the inconvenience, regardless of whether it is for an overtime shift or a regular shift.  The fact that Grievant was working back-to-back shifts makes no difference.  The contractual language does not draw that distinction.

Equitable principles have nothing to do with interpreting this provision.  The language has been in the Agreement for many years.  The Arbitrator's obligation is to interpret the Agreement.  It is irrel­e­vant whether the Employer believes the language makes sense.

The lack of discipline for missing an overtime shift is irrelevant in interpreting this language.  Absences from a regular shift also do not necessarily result in discipline.  Discipline deals with wrong­doing, not compensation.

POSITION OF EMPLOYER

The Union bears the burden of persuasion.  It produced no evidence tying its argument to the his­tory of this language.  It has not shown that the parties took the language that existed before 1979 and bargained it into Article 11 later.  This argument goes beyond the logical propositions of the language.

Sheer logic supports the State's position.  Overtime compensates employees for working more than eight hours in a day.  Penalty pay compensates employees for the inconvenience of having their regular sched­uled shift interrupted.  It is illogical to say that a "scheduled shift" lasts for whatever period the employee is asked to work overtime.  It is illogical to apply Article 40 Section 3 to an eight-hour shift, but not a seven-hour overtime period.  If that were the test, the Employer could avoid the application of this provision simply by telling the employee the overtime period would be six hours.

The other overtime shifts Grievant worked are indistinguishable from this case.  If, for example, he came to work overtime on his day off, under the contract, he would be paid only for the actual hours worked.  He had the option of declining the overtime if that was unacceptable.  In contrast, employees do not have the option of declining their regular scheduled shift.  The obligation must be bilateral--to be paid for eight hours, the employee must be willing to work eight hours.  If Grievant had decided not to show up for the shift in question, he would have received no discipline.

If Grievant worked 15 overtime minutes on his own ward, he would be en­titled to overtime pay just for that period.  The fact that he went to another ward should make no difference.  He should be compensated for the extra time he worked, just as on other occasions when he has worked extra time.  Grievant is overstepping with this claim.  The Union steward did not testify about how this issue arose.

The Agreement contains an overtime scheme that requires equitable distribution of overtime.  The Union's position would penalize the Employer for using this method of distributing overtime.  The Employer does not hold the employee to the decision to accept overtime.  Grievant knew this was an oppor­tunity to work extra hours at time and one half.  Overtime is not a guarantee of any particular number of hours; employees cannot rely on any number of hours; and the overtime provision is no representation that overtime will last eight hours.  This scheme assists labor and management in making scheduling decisions.  The alternative to this scheme would be mandatory overtime.

De Luca's testimony should be weighed against a vacuum.  The Employer did not have the burden, but attempted to show the meaning of the language.  The Union did not bring forth testimony in support of its position.  The Arbitrator should ignore the arguments that jump from contract to contract, and look just at the current language.  The Union presented no evidence of what the bargained-for agreement was.  The Arbitrator cannot take phrases alone.  No evidence exists of what the phrase "scheduled shift" means.  The Arbitrator must look at this term in the context of the contract as a whole.

The penalty pay language for ODOT is identical to that here.  Arbitrators in other cases have held that Article 40 is coherent despite the use of different terminology in different sections.  Article 90 Section 2(c) defines work schedules.  The parties had no reason to do that unless the term "scheduled shift" had some meaning.  The logical interpretation of Article 40 is that various forms of penalty pay apply to employ­ees whose regular shifts are interrupted--e.g., by being called back before the scheduled shift, or by having the re­porting time changed.  The overtime provision applied to this situation.  The clear, con­sis­tent application of this provision has been to treat situations like Grievant's as overtime, not show-up time.

         OPINION

PRELIMINARY MATTERS

The Union bears the burden of persuasion as the moving party in this contract interpretation case.  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 be used to vary clear contract language.  It can be used to demonstrate a latent ambiguity in the language, or to 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.

Disputed language does not stand alone, but must be read and interpreted as part of the contract as a whole.  The fact that disputed language is subject to more than one interpretation does not necessarily mean that it is ambiguous.  Language may be deemed clear even though the parties disagree concerning its meaning.

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 contract clarifications and modifications.  The Arbitrator must avoid interpreting ambiguous language to nullify or render meaningless any part of the Agreement if another reasonable interpretation gives effect to all provisions.  The Arbitrator must prefer that interpretation which avoids harsh, absurd, or nonsensical results.

THE MERITS

Article 40 compensates employees for three kinds of unanticipated changes in their hours.  "Call back" pay comes into play when the employee is brought back to work early; "reporting" pay applies when the em­ploy­ee's reporting time changes with insufficient notice; and "show-up" pay applies when the employee's scheduled shift is cancelled after s/he has appeared for work.  Other arbitrators have considered the interplay between similar call-back and reporting pay provisions for the ODOT unit.  Essentially, the issue here is whether show-up pay applies only to the employee's normal scheduled shift.[2]  The language of Article 40, Section 3, is unclear on this point.

The parties' theories about the reasons for the show-up pay provision are two articulations of the same thought.  Whether phrased as compensating employees for the expense and incon­ven­ience of show­ing up to work, or instead as making sure that employees who report to work get some pay, the reason could apply with equal force to the employee's normal shift or an extra shift.  The expense and in­convenience are roughly comparable,[3] and the benefit from assuring compensation for reporting to work is no less.[4]  It would not be illogical to apply show-up pay when an employee was sent home early from an overtime shift.  In context, however, Article 40 suggests that the parties did not actually intend to extend show-up pay beyond the employee's normal schedule.

The crucial question is the meaning of the term "scheduled to work" in Article 40, Section 3.  The most helpful language in discerning the meaning of that term is in Section 1 of the same Article.  That pro­vision, in paragraph (a), defines a call back in terms of returning to work before the "normal starting time."  In paragraph (b), it provides call back pay to an employee who is called back outside the "sched­uled work shift."  In that context, "scheduled" could only mean the "normal starting time" referred to in paragraph (a).  It would be consistent for the parties to attach the same meaning to "scheduled for work" in Section 3.

The requirement of "scheduled for work" also makes more sense in the context of the employee's normal work schedule.  If the purpose of Section 3 was to compensate employees for showing up, regardless of whether the shift was a normal shift or an overtime shift, it is unclear why it would be necessary to include the separate requirement that employees be "scheduled for work."  Given the use of similar language in other parts of Article 40, the most likely explanation is that the language was intended to tie show-up time to the employee's normal work schedule.

Unlike Section 1, Section 3 does not exclude "overtime work which is essentially a continuation of the scheduled work shift" from show-up pay.  When read in conjunction with the pro­hibi­tion in Article 32 on "pyramiding" overtime and penalty pay, this omission also suggests that the parties did not con­tem­plate that show-up pay would apply to an overtime shift, as opposed to the employee's normal shift.

This interpretation is further supported by the history of this language.  The 1970-72 agreement, and all agreements before 1979, had separate penalty pay provisions depending on whether the employee was "scheduled for work" or "called to work outside their regular shift."  "Scheduled for work" in this context logically referred to the employee's normal work schedule.  Absent contrary bargaining history, it is more likely than not that the parties intended to preserve this distinction when they negotiated the penalty pay provisions of Article 40.

In summary, it is concluded that Grievant was not "scheduled for work" on the swing shift on November 22, within the meaning of Article 40, Section 3.  The Employer therefore did not violate that provision when it denied him penalty pay.

           AWARD

The Employer did not violate Article 40 Section 3 of the 1993-95 Collective Bargaining Agreement when it denied Grievant show-up pay for the swing shift on November 22, 1994. 

 

DATED:  November 20, 1995

 

___________________________________

   LUELLA E. NELSON - Arbitrator


[1]           Grievant testified a patient on the ward had been taken off suicide watch that morning; he believes he was scheduled to work swing shift in anticipation that the suicide watch would continue.

[2]           In is unnecessary in this case to decide whether a "scheduled shift" can be less than a full shift.  The disputed shift was originally planned to be a full overtime shift.  Because Article 90 attaches a specialized meaning to the phrase "regular work schedule," the Arbitrator will use the phrase "normal work schedule" or "normal shift" to refer to shifts such as Grievant's regular day shift schedule, and "extra shift" to refer to overtime shifts such as the one in question here.

 

[3]            Arguably, the inconvenience is greater when an employee reports for work on an extra shift.  Employees tend to have arrangements for child care, commuting, shopping, recreation, and other life activities which take into account their usual work schedule; special arrangements often must be made to accommodate an extra shift.

[4]           Indeed, it could be particularly desirable to pay show-up pay for overtime shifts where, as here, no disciplinary consequences follow from missing an overtime shift.  Absent such assurances, employees would have less incentive to appear for an overtime shift, and thus save the Employer the inconvenience of finding another employee to fill the gap at the last minute.

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