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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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