Title: City of Beaverton and Oregon
Public Employees Union
IN THE MATTER OF THE GRIEVANCE
OREGON PUBLIC EMPLOYEES UNION, )
and ) AND
CITY OF BEAVERTON. )
JACK H. CALHOUN
DECEMBER 3, 1996
FOR THE UNION: FOR THE CITY:
SUSAN DOBROF WILLIAM B. KIRBY
SWANSON, THOMAS & COON ASSISTANT CITY ATTORNEY
621 SW MORRISON CITY OF BEAVERTON
SUITE 900 P O BOX 4755
PORTLAND, OREGON 97205 BEAVERTON, OREGON 97076
The Oregon Public Employees Union (the Union) and the City of Beaverton
(the City) are parties to a collective bargaining agreement that covers the
terms and conditions of employment for certain employees.
In January of 1996, city officials informed certain employees represented
by the union that it would not pay them for time spent in traveling to and from
a training site. When the affected
employees received their pay checks, which did not include the time in question,
the union filed a grievance. A
hearing was held on December 3, 1996. Post
hearing briefs were filed.
1. Was the grievance timely
2. Did the city violate the
collective bargaining agreement when it failed to pay certain employees for time
spent in traveling to the training site?
The following provisions of the collective bargaining agreement are
relevant to the issues in dispute:
. . .
Article 27 - Grievance Procedure
1: The employee and/or Union shall initiate a grievance in writing submitted on
an official grievance form (attached as Appendix A or the employee and/or Union
may use the official OPEU grievance form) to the immediate supervisor within
fifteen (15) working days of its occurrence or within fifteen (15) working days
of the time the employee or Union has knowledge or by reasonable diligence
should have known of the alleged grievance.
The written grievance shall contain at least the information required on
the official grievance form.
Article 5 - Existing Conditions
All existing employee rights and benefits established by past practice shall
remain unchanged during the life of this agreement. For purposes of this section, past practices are those that
are long continued, well understood and mutually concurred by the parties.
Article 12 - Overtime
All employees shall be compensated at the rate of time and one-half for all
authorized work performed in excess of forty (40) hours in any workweek . . .
Employee schedule changes for the purpose of reducing overtime will not be made
without two weeks notice. For the
purpose of overtime, time worked shall be interpreted in accordance with the
Fair Labor Standards Act, except that holidays, vacation, and compensation time
shall be considered time worked.
Several employees of the city’s operations department were scheduled to
attend five days of classes during the week of January 22-26, 1996.
The classes were to be held approximately 13 miles from the operations
center in the city. The instruction
was to begin at 8:00 a.m., and end at 4:30 p.m.
The employees’ regular work schedule is 8:00 a.m. to 4:30 p.m.
They were told prior to the first day of training that they should report
to the operations center at 7:00 a.m. to travel to the training site by city
vehicle. They were given the option
of using their own vehicles, but were encouraged to travel by city vehicle
because use of their own vehicle required permission.
The classes ended at different times on different days, but usually the
employees returned to the operations center by 4:30 p.m.
On the first day of training, they returned to the operations center and
were informed by an administrative assistant in the operations department that
they would not be paid for travel time to the site for the remaining four days
of the week. They were, however,
going to be paid for the first day because they had been told by a supervisor
they would be paid. The assistant
also informed the employees that for the rest of the week the training site was
to be their job site.
On January 24, 1997, the director of the operations department wrote a
memorandum to his supervisors informing them that according to the Fair Labor
Standards Act, when an employee is assigned training for one day or longer, the
training location becomes the work site and travel time is not compensable.
Employees were not provided copies of the memorandum and had never been informed
prior to January 23, 1996, that a training site would become the work site.
At no time prior to then had the city designated a training site as a
Prior to January of 1996 employees had always been paid for training
travel time when the travel time added overtime to the workweek or workday.
There is no specific city policy that says the city does not pay for
travel time to training. There is a
specific policy that says travel from home to the work site is not compensable,
except in call-back situations. Nothing
in the collective bargaining agreement specifically allows the city to change
the work site.
One employee was paid for training travel time to Corvallis on January 24
and 25, 1996. He drove from his home to the work site in Beaverton, picked
up a city vehicle and traveled to Corvallis on a two-day overnight training
trip. He was compensated for 1.5
hours travel time for the first day and 1.0 hours for the trip back to
Employees had been paid for travel time from the work site to training
sites while in city vehicles, although no overtime situation was created when
the training day ended early and the employees returned to the work site within
the regular eight-hour shift.
Another employee attended a three-day training session in September of
1995 at Clackamas Community College. He
traveled by city vehicle from Beaverton. He
was paid 2.5 hours overtime for the travel time to the training site.
He was not told that the training site would be considered his work site.
Another employee was paid for travel training time when he attended a
three-day training in March of 1995. The
overtime on each day represented the time traveling in a city vehicle from the
work site in Beaverton, to the training site at Clackamas Community College.
Until the January 1996 training, employees have never been told a
training site was to be considered a work site.
They had always been paid for traveling to training sites in city
Employees fill out daily time sheets that are then compiled into a
two-week pay period form called a "green sheet."
Sometimes employees do not see or sign the green sheets and at times
there are changes made from the daily sheet to the green sheet.
For the period in question here, the affected employees expected to be
paid for five hours of overtime. Some
of them noted on their green sheets that pay for the training travel time was
On February 9, 1996, the employees received their pay checks or payroll
deposit advice for the period January 21 to February 3, 1996.
They were paid only for one hour at the overtime rate for the time spent
in travel from the work site to the training site on January 22, 1996. It was at that time they knew with certainty that the city
was not going to pay them for the remaining four days of training travel time.
The grievance was filed on February 27, 1996, twelve working days after
the city failed to pay the employees for training travel time.
OF THE UNION The
union contends that the collective bargaining agreement does not have language
specifying pay for travel time in city vehicles.
It does require, however, that existing employees’ rights and benefits
remain unchanged during the life of the agreement.
The agreement requires that work in excess of forty hours in a week be
compensated at the rate of one and one-half times the regular rate of pay, and
in terms of overtime, time worked will be interpreted in accordance with the
Fair Labor Standards Act. It also
requires that all grievances be filed within fifteen working days of the time
the union has or should have knowledge of the alleged violation.
Under the Fair Labor Standards Act, travel from home to the work place is
normally not compensable. Such
travel is compensable, however, if established by either an express provision of
a written contract, or by a custom or practice.
Compensable time under city policy is time worked on activities assigned
by a supervisor. Noncompensable
time includes travel from home to work.
Because travel to and from the work site to a training site in a city
vehicle is not excluded as noncompensable under city policy, the time should be
considered compensable as an activity assigned by a supervisor. The city
required the employees to attend the training.
Prior to January of 1996, the city had never designated a training site
as a work site. The city believed that by calling the training site the work
site, it could avoid paying the overtime it has always paid before.
It was an attempt to justify the change in past practice and fit within
the statutory rule that travel to and from the employee’s home to the work
site is noncompensable. Neither the new designation of training site as work site nor
facts about miles traveled has any relevance to the fact the city paid overtime
for training travel time when travel was by city vehicle and the total hours
exceed forty in a week. This
practice cannot be unilaterally changed under Article 5 of the agreement.
If the city was changing its practices to reduce overtime, it was
required to give notice under Article 12.1.
Given that the city compensated the training travel time in several
situations, a past practice has been established pursuant to Article 5.
Such practice satisfies the Fair Labor Standards Act exception to the
Portal to Portal Act. The practice
was not altered by the assertion that the Fair Labor Standards Act does not
require pay for training travel time.
Although the city notified some of the employees that it did not intend
to pay for the training travel time, it was not until the employees were
actually paid that the city violated the agreement by altering past practice.
Sometime changes were made to time sheets after employees signed them.
Several sheets indicated questions on whether employees would be paid for
the training travel time. One
employee was paid for training travel time in the same period in question.
OF THE CITY
The city contends that minor changes in the job sites do not make
additional home-to-work travel time compensable under Fair Labor Standards Act
regulations. Normal travel from
home to work is not work time even if the employee must travel to different work
sites in an area. That an employer furnishes a vehicle for transportation to a
job site does not entitle an employee to compensation for home-to-work travel.
A substantial change in an employee’s job site can trigger a Fair Labor
Standards Act requirement that the travel time be paid.
An insubstantial change in the location of a job site does
not trigger such a requirement. The
travel time involved in the instant case was 13 miles, not nearly substantial
enough to qualify as compensable.
Past practice can help in the interpretation of an ambiguous agreement or
to support a contention that clear language of the agreement has been amended.
The relevant contract provisions in this case are unambiguous, and
evidence of past practice is insufficient to establish a condition of employment
contrary to what is provided for in the agreement.
Unambiguous contracts must be enforced according to their terms.
There must be two competing reasonable constructions of a contractual
provision to establish ambiguity.
The provisions of the collective bargaining agreement on overtime pay and
travel time pay are clear and unambiguous.
Overtime is to be interpreted in accordance with the Fair Labor Standards
Act and portal-to-portal pay is required when an employee is called back to
work. There is no ambiguity in
either of the provisions. They
establish that the only time the parties intended for the employer to pay
overtime for ordinary home-to-work travel time is when an emergency call out is
The city’s position is supported by the bargaining history between the
parties on travel time pay. The
human resources director testified that the union has suggested the city expand
its obligation to pay for work-related travel.
The city refused to expand its obligation in this regard.
Custom and past practice ordinarily may not be used to give meaning to a
provision that is clear and unambiguous. On
the basis of strong, clear and convincing proof, however, it may be reasonable
to conclude that the parties have agreed to amend a contract.
In this instance, however, the evidence of past practice offered by the
union is in contradiction of the clear contract language and is insufficient to
establish a mutually agreed to modification of the agreement.
There is no well understood or mutually agreed to past practice contrary
to the provision of the collective bargaining agreement involving payment of
home-to-work travel pay in ordinary circumstances.
The alleged grievance occurred between January 22 and 26, 1996.
The grievance was not filed until February 29, 19996. The collective bargaining agreement requires a grievance to
be submitted within 15 working days of its occurrence or when the employee or
union has knowledge or by reasonable diligence should have had knowledge of its
occurrence. The employees or union
knew, or by reasonable diligence should have known, of the existence of the
alleged grievance no later than January 22, 1996.
The city challenges the arbitrability of this dispute based on the fact
that the grievance was not filed within fifteen working days from the time the
city announced it would no longer pay for training travel time.
The contract requires that grievances be filed within fifteen days from
the time the employees or union knew or should, with reasonable diligence, have
known of the alleged violation.
There is a presumption of arbitrability in labor arbitration and
consideration of the merits of a grievance should not be denied unless to do so
would violate the terms of the agreement. Doubts
as to the interpretation of time limits on filing grievances should be resolved
against the forfeiture of the right to process a grievance.
While some of the employees may have known with some amount of certainty
on January 22, 1996, that the city was not going to pay them for training travel
time, not all knew. The point at
which all affected employees knew unequivocally the city was not going to pay
for such time was February 9, 1996, when they received their pay checks.
The grievance was, therefore, timely filed under the terms set forth in
The merits of this dispute center on the meaning to be given to Article
5, the provision that requires that rights and benefits established by past
practice remain unchanged during the life of the agreement.
Although the city argues that matter is governed by the Fair Labor
Standards Act and the interpretation given similar cases thereunder, to give
meaning to the past practice provision of the agreement requires a broader
examination of the facts supported by the evidence on the record as a whole.
The city’s argument omits the fact that the city paid overtime for
training travel time before and during the January 22-26, 1996, period.
It was a long-standing, well-understood and mutually accepted practice.
Moreover, it had never considered a training site to be a work site, and
it issued its policy regarding training travel time after it changed its
practice and then only to supervisors.
Employees had come to expect that overtime for travel from the work site
to the training site would be paid because it had been paid in the past.
The city even paid for the first day of the training travel time at issue
here. The city changed its policy
after recognizing the liability it would realize if it continued the past
practice. It did so in violation of
Article 5 of the agreement.
Under the Fair Labor Standards Act, travel from the home to the work site
is usually not compensable, but such travel is compensable if it is established
by either an express provision of a contract or by custom or practice.
Collective bargaining agreements should be construed to give effect to
all provisions contained therein. The language of Article 5 and the past
practice of the city in compensating for training travel time is not
inconsistent with other provisions of that agreement.
The grievance was timely field and is sustained.
The city violated the collective bargaining agreement by failing to pay
training travel time to certain of its employees.
The city is ordered to make those employees whole.
DATED this _____ day of ________________, 1997.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028