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Title: Spokane Airport Board and Spokane Airport Police Association
Date: 1996
Arbitrator: Jack Calhoun
Citation: 1996 NAC 104


IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

SPOKANE AIRPORT POLICE                          )

ASSOCIATION,                                                  )              

                                                                             )                               OPINION

and                                                                         )                               AND

                                                                              )                               AWARD

SPOKANE AIRPORT BOARD.                                                )

____________________________________________________________________________________________

 

 

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

JULY 25, 1996

SPOKANE, WASHINGTON

 

 

____________________________________________________________________________________________

 

REPRESENTATION

 

FOR THE ASSOCIATION:                                                   FOR THE AIRPORT BOARD:

 

MARK L. LORBIECKI                                                                                JERRY R. NEAL

CHRISTOPHER K. VICK & ASSOCIATES                                      PRESTON, GATES & ELLIS

15 SOUTH GRADY WAY                                                      5000 COLUMBIA CENTER

EVERGREEN BUILDING, SUITE 409                                             701 FIFTH AVENUE

RENTON, WASHINGTON 98055                                                      SEATTLE, WASHINGTON 98104-7078

 

 

 

 

BACKGROUND

 

            The Spokane Airport Police Association (the Association) and the Spokane Airport Board (the Board) are parties to a collective bargaining agreement that contains an overtime provision.  The Grievant herein, Sergeant Marty Hunter, was not paid at the overtime rate for one hour she spent at the airport after her eight hour shift was ended.  She filed a grievance contending she should have received pay for the one hour at the overtime rate.  A hearing was held on July 25, 1996.

 

ISSUE

            The parties agreed that the issue is whether the employer violated the contract when it did not pay overtime or holdover pay when an employee did not work 40 hours in a seven-day work week and when the employee requested a meeting with the employer, which was not required by the employer.

 

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties’ collective bargaining agreement are relevant to the issue in dispute:

            ARTICLE X HOLIDAYS

            . . .

            An employee not working the holiday must be in a pay status, i.e., sick leave, vacation, paid leave of absence, or actual work time, immediately prior to and after the holiday in order to receive holiday pay.

            . . .

            ARTICLE XIV HOURS OF DUTY/OVERTIME/CALLBACK/HOLDOVER PAY

            A.  Hours of Duty

            . . .

            Except as provided for in Section C herein, it is understood that nothing in this Article shall require payment for overtime hours not worked.

            . . .

            B.  Overtime

            Except as provided for in Section D herein, work in excess of eight (8) or ten (10) hours, as applicable, per twenty-four (24) hour day and more than forty (40) hours in a seven day work week, shall be considered overtime and shall be compensated for a the rate of one and one-half (1½) times of Employee’s current regular base rate of pay.

            . . .

            D. Holdover

            Employees may be required by Employer to work beyond the scheduled end of their shift.  Such work time shall be compensated at the rate of one and one-half (1½) times the Employee’s regular  hourly rate for each hour worked.

            . . .

 

STATEMENT OF FACTS

 

            On November 6, 1995, Sergeant Hunter approached Chief Troyer and requested a meeting at the end of her shift.  She also wanted two other officers to attend the meeting and suggested that overtime may be involved.  He asked if the other two officers wanted to attend the meeting.  Hunter replied that she believed they did.  The Chief meant for attendance at the meeting to be voluntary, no one was required to attend.  The meeting took place and lasted for one hour.

            Sergeant Hunter’s work week for the period pertinent here began on November 5, 1995 and ended on November 11, 1995.  On November 9, 1995, she was sick and used eight hours of paid sick leave.

            On November 15, 1995, when Chief Troyer noticed that Sergeant Hunter had claimed one hour of overtime for November 6th, he looked into the matter and decided that the contract did not require that overtime be paid in such situations.  He concluded that to qualify for overtime, she would have had to both work in excess of forty hours in the work week and more than eight hours in a day.  He informed Hunter of his decision.

            The Chief based his decision on the language in the contract and pointed out that an employee must satisfy both the hour requirements and must actually work those hours.  Being in a paid sick leave status was not considered by him to be work.  Hunter was not paid overtime for the one hour in question.

            Chief Troyer took his job with the airport in January of 1995.  On November 15, 1995, he discovered that employees had been paid overtime previously when they had not actually worked 40 hours in a work week.  Sergeant Hunter pointed out to him that his interpretation of the contract language was contrary to the way the language had been interpreted in the past.  In the past, the practice had been to pay overtime to employees as long as they were in a positive leave status while off duty.  She also contended she was entitled to the higher rate of compensation under the holdover provision of the contract.

            Troyer acknowledged that his predecessor practiced deceptive payroll reporting that may have resulted in employees receiving overtime pay when it was not warranted.  However, he noted it had not been discovered previously and was never brought to the attention of management.  He noted that since it had been discovered, management would not support deviation from the agreement.

 

POSITION OF THE ASSOCIATION

            The Association contends that the interpretation given to the language of the contract by management ignores the significance of the forty-hour work week under both state and federal law.  Management’s interpretation would permit management to disallow overtime to an employee who worked seven eight-hours shifts in a work week.

            There is ample precedent to show that courts have construed "and" to link disjunctive independent elements in a list.  Courts have been willing to construe "and" to mean "or" in situations where two conditions are part of a list as in the contested contract language here.

            The meaning of the collective bargaining agreement is ambiguous; therefore, the intent of the parties must be gleaned from bargaining history and contract administration.  Bargaining history shows that the language in dispute has remained constant over the years.  The evidence of a past practice of paying overtime in weeks where the employee worked fewer than forty hours in a work week shows an intent of the parties to interpret the contract as the Association suggests.  Such practice spanned several contracts.

            The Association agrees that past practice cannot be used to impose a contractual obligation upon the employer where the language of the contract is clear.  However, where there is ambiguity, past practice becomes relevant in construing the contract.

            The Airport failed to show a single incident where employees were paid on a straight time basis for work that met one but not the other condition stated in the contract.  The only instance identified by Chief Troyer was the shift in question here.

            Data extracted from payroll records show one hundred thirty three instances where an employee worked fewer than eight hours per day of straight time.  The Airport always paid overtime for employees who worked fewer than eight hours per day and more than forty hours in the work week.  The Airport also paid overtime to employees who worked more than eight hours per day but not more than forty hours in the work week.  It is clear that the Airport has previously required only that either condition be fulfilled to entitle an employee to overtime under the contract.

 

POSITION OF THE AIRPORT

            The Airport maintains that Sergeant Hunter is not entitled to overtime because she did not work forty hours in a seven-day work week and more than eight hours in a twenty-four hour day.  She was sick and received paid leave for eight of the hours during her work week.  The contract requires actual work for overtime pay.

            Hunter is not entitled to holdover pay because the Chief did not require her to work beyond her shift.  Holdover pay is only required when the employer requires the employee to work beyond the employee’s shift.

            The word "and" in the overtime provision must be given its ordinary meaning.  It conveys a conjunctive meaning.  Both conditions must occur before overtime is paid.

            Two provisions of the agreement support the Airport’s position.  The provision dealing with holidays and hours of duty require that hours must be worked to receive overtime.

            The Fair Labor Standards Act has been construed by the courts to mean that an employee cannot claim overtime for hours not worked.  Employees who are absent from work because of  illness are not entitled to count those hours when computing overtime.

            There has been no past practice of paying overtime for such leave.  There have been mistakes in calculating overtime.  Employees have been paid when they did not work both forty hours and work those hours within a seven-day period.  These were cases of miscalculations and the employer exercised discretion to pay overtime.

            There has never been a past practice because there has never been an agreement that overtime would be paid when employees were out sick and did not actually work forty hours within a seven-day period.  The fact that overtime has been paid where an employee did not work both forty hours and work those hours in a seven-day period only does not establish that there was any mutual agreement that overtime would always be paid in these instances or that overtime would be paid when an employee did not actually work.  Mutuality is essential in any past practice claim.

            Sergeant Hunter is not entitled to holdover pay.  She requested the meeting with Chief Troyer.  It was a voluntary meeting, no one was required to attend.  Holdover pay is required only where the employer requires the employee to work beyond the end of  the shift.  There is no ambiguity in the language.

 

OPINION

            This dispute centers around the interpretation to be given to the overtime provision of the collective bargaining agreement.  While the original claim was also made that Sergeant Hunter was entitled to compensation under the holdover provision, that claim was not pursued seriously. There is no evidence on the record to support such a claim.  The Association did not argue that Hunter was entitled to compensation under the holdover provision in its brief.

            There is evidence on the record to show that the meeting between Chief Troyer and Sergeant Hunter and the two other officers on November 6th was requested by Hunter. Attendance was not required, but rather was voluntary.  Compensation at one and one half of the regular rate was not required; the language of the holdover provision is clear, therefore, there was no violation by the employer of the holdover provision.

            It is basic to the arbitration of contract interpretation disputes that where the language in dispute is clear and unambiguous as written, the arbitrator’s responsibility is to give effect to the clear meaning of the contract. Where the language is ambiguous and reasonably susceptible to more than one meaning, it is necessary to look to bargaining history and the custom or past practice of  the parties.  Elkouri and Elkouri; How Arbitration Works, 454, 4th edition (1985).

            A reading of the overtime provision in dispute here can only result in the conclusion that the provision is ambiguous.  It is not clear whether an employee must work both in excess of eight hours and in excess of forty hours to receive overtime pay, or whether an employee qualifies for overtime pay by either working in excess of the eight hours or working in excess of the forty hours.  The language in the contract is reasonably susceptible to more than one meaning.

            In the instant case, the language of the provision in question has remained unchanged over several contracts.  That is the only evidence regarding bargaining history on the record.

            Arbitrators hesitate to legislate new contract terms.  Thus, the party asserting a past practice has the burden of proving not only the existence, but also the scope, of any alleged past practice.  Bornstine and Gosline, gen. editors, Labor and Employment Arbitration, 18-5, Matthew Bender (1996).

            It was incumbent on the Association to prove there was a well-established pattern of conduct that represented a mutually  agreed upon response to a particular set of circumstances.  The evidence compels the conclusion that it proved a past practice that clearly shows its interpretation of the overtime provision of the contract is the one the parties have abided by for several years.

            The practice of allowing overtime pay when an employee actually worked fewer than forty hours in a work week occurred consistently and regularly over several years.  Both the former Chief and his employees knew what the practice was.  The Chief was acting for Airport management when he made the decision to allow overtime after an employee worked more than eight hours in a twenty-four hour period although the employee may have been on paid leave for some of the time.

            The practice of allowing overtime pay when either of the two conditions set forth in the language of the overtime provision established a meaning for that language, which was carried over from one contract to the next.  Both parties to the agreement accepted the practice making it a mutually agreed upon interpretation of an ambiguous contract term. The practice was of sufficient duration to imply acceptance of it as an authentic construction of the contract.  Elkouri & Elkouri, How Arbitration Works, 453, 4th edition (1985).

            Other provisions of the contract cited by the Airport in support of its position are not governing here where a specific contract provision has been acted upon in several instances over several years in a particular manner with one consistent interpretation.  Regardless of the interpretation one might give to the holidays and hours of duty provisions of the contract, the fact remains the parties interpreted the language of the overtime provision to mean an employee did not have to actually work to qualify for overtime under either of the two conditions.  Paid leave time was treated as work time.       

            To the Airport’s argument that the Fair Labor Standards Act has been construed to mean overtime does not have to be paid to employees unless they actually work forty hours in the work week, suffice it to say, this case rests on the interpretation of the parties collective bargaining agreement.  There is nothing in the agreement that refers to the Fair Labor Standards Act as a guide in the interpretation.  Had the parties meant for the overtime provision to be read in light of the federal law, they would have written such requirement into the contract.

            The parties’ long-standing practice of allowing overtime pay under the circumstance described above is sufficient basis to conclude that such practice was not simply a mistake, mere happenstance or unilateral action taken by the former Chief. The practice was unequivocal over a long period of time and was accepted by both parties.

            The Airport violated the collective bargaining agreement when it did not pay overtime pay to SergeantHunter for one hour on November 6, 1995.  Accordingly, I will enter an award reflecting that conclusion.

 

AWARD

            The Spokane Airport Board violated Article XIV, Section B, when it failed to pay Sergeant Hunter one hour at the overtime rate for November 6, 1995.

            The Board is hereby ordered to pay Sergeant Hunter in accordance with this award.

            DATED this _____ day of ________________, 1996.

 

 

 

                                                                        _____________________________________

                                                                        Jack H. Calhoun

 

109-96WA

 

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