Title: City of Beaverton and Oregon Public Employees Union
Date: 1997
Arbitrator: Jack H. Calhoun
Citation: 1997 NAC 112

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

OREGON PUBLIC EMPLOYEES UNION,                  )

                                                                                                )                               OPINION

and                                                                                         )                               AND

                                                                                                )                               AWARD

CITY OF BEAVERTON.                                                      )

____________________________________________________________________________________________

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

DECEMBER 3, 1996

BEAVERTON, OREGON 

____________________________________________________________________________________________

REPRESENTATION

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

BACKGROUND

            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.

ISSUE

            1.  Was the grievance timely filed?

            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?

RELEVANT CONTRACT PROVISIONS

            The following provisions of the collective bargaining agreement are relevant to the issues in dispute:

            . . .

            Article 27 - Grievance Procedure

Step 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

5.1 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

12.1 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.

STATEMENT OF FACTS

            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 work site.

            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 Beaverton.

            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 vehicles.

            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 "pending."

            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.

POSITION 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.

POSITION 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 involved.

            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.

OPINION

            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 contract.

            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.

AWARD

            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

EEOC | NLRB | Supreme Court |  Employment Law Blog | Arbitration Blog | Employment Law 101

	Web www.LawMemo.com  This form will search the LawMemo web site.  It does not include Advanced Search.