1999 NAC 134 State of Oregon, Department of State Police and Oregon State Police Officer's Association

Title: State of Oregon, Department of State Police and Oregon State Police Officer's Association
Date: September 30, 1999
Arbitrator: David M. Gaba
Citation: 1999 NAC 134

This arbitration arises pursuant to a Collective Bargaining Agreement between the OREGON STATE POLICE OFFICERS’ ASSOCIATION (hereinafter “Association”), and the STATE OF OREGON, DEPARTMENT OF STATE POLICE (hereinafter “Department” or “Employer”), under which DAVID GABA was selected to serve as Arbitrator and under which his award shall be final and binding among the parties.

A hearing was held on July 23, 1999, at the Central Point Patrol Office. The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute. Both parties filed post-hearing briefs on or about August 31, 1999. This arbitration is a companion case to the Salem Forensics Unit 4-10 case. The parties and this Arbitrator to the instant controversy also rely upon the briefs filed therein.

Daryl S. Garrettson, Esquire
            Garrettson, Goldberg, Fenrich and Makler
            638 East 5^th Street
            McMinnville, OR 97128

Steven D. Krohn, Esquire
            Assistant Attorney General
            Department of Justice
            1162 Court St. NE
            Salem, OR 97310

The parties were unable to stipulate to the issues in the case. The Association formulated the issues as follows:

1. Did the Department of State Police reasonably determine that the current 4-10 shift adversely affected a Department operational need, as defined in Article 14.7.1 of the parties’ Collective Bargaining Agreement?

1. When the Association representative presented multiple plans for 4/10 shifts, did the supervisor apply the operational needs criteria unreasonably or arbitrarily in determining that the shift may have/has adversely affect(ed) a department operational need, in violation of Article 14.7 sub-parts (6), (7), (8) and (1)?

1. Did the Department apply Departmental operational need criteria unreasonably or arbitrarily, in violation of Article 14.7 of the Collective Bargaining Agreement, when it discontinued the requested 4-10 work schedule for employees of the Central Point Patrol?

2. Were the operational need criteria selected by the State rational, and chosen in good faith?

3. What is the appropriate remedy if the collective bargaining agreement was violated?

The Collective Bargaining Agreement between the parties provides, in pertinent part, as follows:

14.7.1 The Department may deny a 4-10 request or discontinue an approved 4-10 shift without employee vote if it determines the shift may/has adversely affect(ed) a Department operational need. An operational need includes but is not limited to:

14.7.1.1 Need to meet Department program and/or priorities for the work group; or

14.7.1.2 Need to meet Department workload or productivity standards without increasing overtime, compensatory time off, penalty pay, staffing or other direct or indirect monetary costs; or

14.7.1.3 Need to meet Department standards for coverage for planned and unplanned absences to respond to workload needs; or

14.7.1.4 Need to meet Department standards for response to emergencies, disasters, or extraordinary circumstances.

14.7.2 Work groups, within a division, who are not covered by an itinerary as outlined in Article 16, will be permitted the opportunity to vote once each year on whether or not to work the 4-10 shift.

14.7.3 Work group is defined al all employees within a division who report directly to a division supervisor in order to accomplish the division’s programs and priorities, except the Patrol Division. For the Patrol Division, a work group is defined as all employees at a work site. For the purposes of this section, the Motorcycle Unit is considered a work group. All sworn employees designated Resident Troopers within a common patrol area is a separate work group.

14.7.4 The vote may be conducted only if thirty percent (30%) of the eligible employees in the division work group request such a vote. A minimum of a majority of all eligible employees in the work group is required for starting or stopping the 4-10 shift. The vote must occur in October, and if approved, the 4-10 shift will become effective upon the beginning of the first twenty-eight (28) day work cycle after January 1 of the following year. Employees are not eligible voters until the completion of the probationary period.

14.7.5 The Association representative of the work group shall conduct the election, certify the results to the division supervisors(s), and supply a list of eligible employees in seniority order to the supervisor. Where employees are allowed to vote for a 4-10 shift under this Article, only employees permanently assigned to the affected division work group are allowed to vote.

14.7.6 If employees in an affected division work group have affirmatively required their preference for a 4-10 shift by the voting process, the Association representative of the work group will present a plan for such a 4-10 shift to the immediate supervisor(s) of the work group. The supervisor(s) will notify the Association representative if the plan conflicts with any operational need.

14.7.7 If the request to move to a 4-10 shift is initially denied, or has been discontinued, the affected work group may provide additional information to the immediate division supervisor(s) that the 4-10 shift will not, or has not, adversely impacted operation need, for the supervisor’s reconsideration.

14.7.8 A denial of initial implementation or discontinuation of a 4-10 schedule may be grieved but shall not prevent a supervisor(s) from implementing his/her decision pending resolution of the grievance. The basis for any grievance in this regard will be whether or not the supervisor(s) applied operational needs criteria unreasonably or arbitrarily.

14.7.9 Accruals. All leave accruals and usage shall be calculated on an hourly basis to provide no greater or lesser benefit than received by employees on a f-8 shift. For example, of an employee on the 4-10 shift takes a day of vacation, 10 hours of vacation leave shall be deducted from the employee’s account.

14.7.10 Configuration. The 4-10 shift shall consist of four 10-hour days followed by 3 consecutive days off. Employees shall receive the same meal and rest periods as employees on a 5-8 shift.

14.7.11 Overtime. Except as provided in 17.1.4, employees on the 4-10 shift shall be entitled to receive overtime only when they (A) work more than 10 hours per day, or (B) work more than 40 hours per week, or (C) work on one of the employee’s days off, or (D) regular time off as existing practice.

14.7.12 Change in Shifts. Employees moving to and/or from the 4-10 to the 5-8 shift shall not be entitled to overtime compensation as a result of such move.

14.7.13 Employees who may be temporarily assigned to a work group will comply with the work schedule in place for employees who are permanently assigned to that work group.[1]

In 1991 the parties to this Arbitration negotiated Article 14.7 of the Collective Bargaining Agreement at issue which created an opportunity for employees to work a 4-10 shift.[2] Since the inception of Article 14.7, the Central Point Patrol Office, which consists of approximately eleven troopers and two motorcycle officers, has been operating under a 4-10 shift.

The Association was first notified that the Department was considering a scheduling change from a 4-10 to a 5-8 shift by memorandum dated October 19, 1998. This memorandum from Lieutenant Simons, the Station Commander of the Central Point Patrol Office, provided, in part, as follows:

The research clearly demonstrates that the current 4-10 schedule is not providing the best service to the public. Therefore, there will be a scheduling change. Absent of any member providing a better schedule than the proposed 5-8 schedule, we will begin shift selection November 1, 1998, and implement the 5-8 system effective January 1999 in both offices.[3]

After the Association was put on notice that the Department was considering going to a 5-8 schedule, Senior Trooper Lacey, the Association representative, submitted multiple 4-10 proposals to Lieutenant Simons, who ran them through the Schedule Software Program. Senior Trooper Lacey did not request that the existing 1998 4-10 schedule be continued. Rather, he submitted different schedules that he thought would be more likely to be adopted by Lieutenant Simons.

Subsequently, on November 16, 1998, Lieutenant Simons received a memorandum from Sergeant Nelson, which addressed this issue as follows:

During this time, it was found that the 5-8 schedule is more effective in patrol coverage during both rush hours . . . and therefore is a greater asset to the motoring public.[4]

Finally, on November 19, 1998, the Association was notified that the 4-10 shift would be discontinued, starting effective January 10, 1999, and that a 5-8 shift would be instituted at that time.[5] The November 19, 1998 memorandum listed the Employers’ reasons for changing to a 5-8 schedule as follows:

After review of several 4/10 and 5/8 schedule proposals it has been determined that the attached 5/8 schedule will be in use at the Central Point Patrol Office with the schedule starting January 10, 1999.

This schedule best fits the operational needs of this office during the morning and evening rush hours as well during the weekend night hours.[6]

As a result of the November 19, 1998 memorandum, the Association filed a grievance over the discontinuation of a 4-10 schedule at the Central Point office on December 3, 1998.[7]

Major Russell filed a response to the grievance on January 18, 1999 in which he cited to the following factors as the basis for its decision to discontinue the 4-10 shift:

1. Need to meet patrol office priorities by providing optimum coverage of three officers, twenty-four hours a day, seven days a week, to cover six identified priority assignment areas.

2. Ability to better meet its obligations under Cooperative Policing Agreements.

3. Ability to provide better commuter traffic coverage during morning and evening rush hours.

4. More shift flexibility because it is easier to manipulate and change eight hour schedules than ten hour schedules.

5. Need to meet Division Strategic Plans, the Department’s Mission Statement, Siskiyou Mountain Tactical Plan and Patrol Purposes and Practices by providing such things as: (a) deterrence by being observed, (b) detection of violations and taking corrective action, (c) providing service and protection to the public, and (d) observing traffic flow and conditions.

6. The need to meet patrol office work load standards without increasing costs.[8]

In his February 4, 1999 memorandum, Lieutenant Simons adopted Major’s Russell response as outlining his decision making process.[9]

In support of its position, the Association contends, as it does in the Salem Forensics’ case,[10] that the two prior arbitration decisions concerning this matter support its position because the parties re-adopted the language in question without change after the arbitration decisions were reached.[11] The Association submits that under the analysis of these decisions, the Department is required to show not only that an operating need exists, but that the 4-10 shift schedule harmfully interferes with an operating need of the Department, and that the harmful interference would produce a material influence or alteration in that operating need. Specifically, the Association argues that the Employer breached its contractual obligations because when deciding to discontinue the 4-10 shift, it did not show that an operating need exists and that the 4-10 shift adversely affected and/or adversely impacted that operating need. According to the Association, the requirement of showing an adverse affect or adverse impact means the ability to show harmful interference with the operating need, that the harmful interference produces a material influence of alteration in that operating need, and that it has an impelling or compelling effect.[12]

The Association points out that this case, in contrast to the Salem Forensics’ case, involves the issue of whether the Employer may discontinue an already existing 4-10 shift, as opposed to deny an initial request for a 4-10 shift. Under these circumstances, the Association submits that the following two-prong test should be applied. First, the Department must determine that an operating need has been adversely affected or impacted, i.e., that the 4-10 shift has caused a harmful effect on an operating need. The Association further argues that under the plain meaning of the language of 14.7.1 and 14.7.7 of the Collective Bargaining Agreement, the Department must identify an adverse impact that has already occurred.[13] On the basis of this language, the Association contends that when a 4-10 shift is discontinued, “the only logical reading is that the past tense applies.”[14] Thus, it argues, that before the Department can discontinue a 4-10 shift, it must determine that an adverse impact or adverse effect has occurred as a result of the 4-10 shift.[15]

As the basis for the second prong of its proposed test, the Association argues, as it did in Salem Forensics, that the adverse impact of the 4-10 schedule must be substantially different in kind and in scope from the effect of a 5-8 schedule.[16] Thus, the next question is not which schedule is better, but whether the 4-10 shift has adversely affected or adversely impacted, i.e., harmfully interfered, with the operational needs of the Department in a manner which produces an immaterial alteration which impels or compels an effect.

Based on the above analysis the Association argues that Lieutenant Simons has simply applied the wrong test. Specifically, the Association contends that Lieutenant Simons looked at “which schedule is best” rather than following the Association’s interpretation of the contractual language which mandates a two-prong test. The Association argues that because the wrong standard was applied by Lieutenant Simons in making his decision, that the Arbitrator should grant the grievance. The Association asserts that the Department simply adopted which schedule was best, on the basis of the foregoing: (1) the Department did not identify with data what the specific operating needs were, and whether or not they were being harmfully impacted;[17] (2) the determination was improperly made on the sole basis that the 5-8 schedule places the most patrols on the road in any given day, week, month or year;[18] (3) the pros and cons of the 5-8 schedule were listed but no determination was made as to whether or not those pluses or minuses impacted operating needs adversely;[19] and (4) the GAP analysis which provided information relating to the number of troopers necessary for the Central Point office to meet all of its operational priorities, did not provide data relating to time of day, day of week, week of month, or month of year, wherein the identified priorities were not being met, and which schedule best addresses meeting those priorities with limited staff.[20]

Counsel for the Association argues that the contract “requires not a determination of which is the best shift, but a determination that there has been an adverse impact, and that the employer may then take certain actions, if that determination has been appropriately made.”[21] The Association further submits that in this case, “the employer’s determination is tainted throughout, since it is based solely on the value judgment of which is the best shift, language not found in the contract. . . .”[22]

The Association also contends that the Department breached its covenant of good faith and fair dealing in abolishing the 4-10 shift at Central Point. Specifically, the Association alleges that the conference call of August 14, 1998 and its accompanying materials[23] was part of a plan designed to provide district offices with rationales for abolishing the 4-10 shift schedule. The Association further contends that the materials contained in Exhibit A-10 (cp) are in fact not neutral, but represent a heavily biased and opinionated attempt to cast the 4-10 schedules in a negative light. The Association further notes the testimony of Lieutenant Simons. The Association alleges that when Lieutenant Simons testified “if he stayed on the 4-10 shift, he would have to justify to Headquarters, whereas if he went to the 5-8, he would have to justify to the Association,”[24] he was indicating that he felt pressured to discontinue the use of 4-10 shifts.

The Department contends that the Association’s grievance should be denied on the basis of the following: (1) other than minor differences in duration, the parties are not in dispute about operating criteria for the patrol unit, i.e., that there is a morning rush hour, evening rush hour and need for weekend DUII coverage; (2) Lieutenant Simons did not act arbitrarily or unreasonably when applying the criteria in finding there was an adverse impact on operational needs (presence/transportation safety) under the 4-10 schedule; and (3) if the question of whether a 4-10 or 5-8 schedule should be adopted was a “close question,” then it is within the discretion of the supervisor unless he acts arbitrarily or unreasonably.

The Department argues that the focus of the hearing should be on whether the Employer arbitrarily or unreasonably applied the criteria in finding there was some adverse impact on operational needs (presence) under the 4-10 schedule. It further contends that Lieutenant Simon’s decision was not arbitrary or unreasonable because he first determined the operating criteria by undertaking the department GAP analysis and learning about the geographic patrol area, he recognized that transportation safety was an operational objective when assigning patrol areas, the need for patrol presence was apparent by a memo sent to the troops reminding them of the need to respond to emergency calls[25], and assistance to local law enforcement agencies was also considered when scheduling for patrol presence.[26] Next, after determining the operational need criteria, Lieutenant Simons considered how transportation safety could best be accomplished for the operating criteria (i.e., morning commute, evening commute and drunk driver coverage) through either a 4-10 schedule or a 5-8 schedule. As testified to by Lieutenant Simons, he relied upon a computer Schedule Software program to determine that a 5-8 schedule, rather than a 4-10 schedule, would provide the most effective presence. In summary, it is the position of the Department that Lieutenant Simons, by focusing on patrol presence, applied the criteria in a manner that established a way to most effectively respond to it and that available data supported his denial of the requested schedules. Accordingly, the Department requests a finding that Lieutenant Simons reasonably applied the operational need criteria when he determined that the 4-10 shift adversely affected a department operation need (patrol presence).

The Employer also points out that after the decision to discontinue the 4-10 shift was made, Central Point Patrol did not provide additional information to Lieutenant Simons for reconsideration. As a result of this omission, the Department claims the Association is not acting in good faith because it filed this grievance without complying with the Section 14.7.7 of the contract and is making after-the fact arguments by relying on contentions that were never brought to the attention of Lieutenant Simons at the time required by the contract.[27]

The applicable standards for contract interpretation are well established. Where the language in the Collective Bargaining Agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language. This is so even when one party finds the result unexpected or harsh. Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning. As stated by Elkouri:

Arbitrators have often ruled that in the absence of a showing of mutual understating of the parties to the contrary the usual and ordinary definition of terms as defined by a reliable dictionary should govern. Use of dictionary definitions in arbitral opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[28]

Evidence of bargaining history cannot be used to vary clear contract language. However, it can be used to demonstrate latent ambiguity in the language. Evidence of post-contract events is admissible to establish that the parties later agreed to clarify or modify the Agreement. However, in the instant case, the parties have not clearly and unequivocally evidenced such an intent.

In this contract interpretation case, the Association bears the burden of establishing that the Department violated the Collective Bargaining Agreement. The basis for a grievance under Article 14.7 is that a supervisor “applied operational needs criteria unreasonably or arbitrarily.” The agreement does not specify the applicable level of proof. As stated by Arbitrator Luella E. Nelson:

Absent a contractual requirement to apply a higher level of proof, the Arbitrator will require the Association to establish by a preponderance of evidence that the Department violated the agreement as alleged. [29]

The duty to act in good faith is inherent in every contract. This is especially important in the instant case where the Agreement grants great discretion on selecting “Department operational need” to the Employer. In exercising its discretion, the Department must do so rationally, in good faith, and without arbitrariness. The Collective Bargaining Agreement in question implicitly incorporates a covenant of good faith and fair dealing into article 14.7.

At the hearing, the Association provided substantial evidence that the Employer was not acting in good faith when it removed the 4-10 schedule from the work group in question. Specifically, Exhibit A-10 (conference call materials dated 8/14/98) was admitted into evidence. The Employer would have me believe that these documents were facially neutral and were provided to Lieutenant Simons only to provide him with useful background information. I find that not to be the case. The materials dealing with the “conference call” are not facially neutral, rather, they contain an inherent bias against the 4-10 schedule. Most illustrative are bullets number twenty three (23) and twenty four (24) of the Exhibit which contain recommendations such as; “change to a 5-8 work schedule,”[30] as well as “transition suggestions” to help move from a 4-10 to a 5-8.

Balancing the evidence produced by the Association, was the testimony of Lieutenant Simons. Having viewed firsthand the testimony of Lieutenant Simons, I do not believe that he was engaged in a artifice or plot that sought to remove the 4-10 schedule from the Association’s members. I found his testimony to be thoughtful, truthful, and straightforward. This does not mean that the Lieutenant had not been subconsciously swayed by the conference call, the materials he was provided with, or other contacts he might have had with the Oregon State Patrol hierarchy. It does mean, however, that if he was swayed, it was unconsciously. While the Association has presented evidence of “bad faith” it has not presented enough evidence to meet its burden of persuasion (in this case) that the Department was acting in bad faith.

The Department contends that the Association was also acting in bad faith by not complying with Section 14.7.7 of the Collective Bargaining Agreement, which the Department argued, required the Association to raise it’s issues concerning the reasonableness of the schedule at the time the schedule was promulgated. I agree with the Department’s position, and will not accord any weight to evidence of “reasonableness” that Lieutenant Simons was not aware of (or should have been aware of) at the time the grievance was filed.

There is no question that the decision made by Lieutenant Simons to move to a 5-8 schedule was not arbitrary. To quote Arbitrator Kienast from District 1 Dispatch:[31]

The decisions in question were not arbitrary, that is to say “without reason.” Both supervisors had “reasons.” Under the arbitrary standard the finder of fact must conclude only that a reason for the decision exists, that is the decision was not made simply by will or caprice. The Arbitrator finds the supervisors’ decisions were not arbitrary.

It is clear that Lt. Simons wanted to discontinue the use of 5-8 shifts. His decision, even if unreasonable, was not arbitrary.

In determining whether the Employer was “unreasonable” in applying the Department’s operational needs, one must look at more than the language in the Collective Bargaining Agreement. Specifically, the parties have a lengthy history of arbitrating 4-10 shift denials under the Collective Bargaining agreement, and have chosen to maintain the current contract language rather than amending it through the collective bargaining process. One of the decisions made by the parties, was to accept, and to live with, the decision made by Arbitrator Nelson in the Springfield Detectives 4-10 Denial Grievance.[32]

In Springfield Detectives, Arbitrator Nelson laid out a framework for analyzing grievances under this section of the contract. I do not necessarily agree with Ms. Nelson’s analysis, nor would I have followed it had this grievance arisen prior to the parties renegotiating the Collective Bargaining Agreement. However, while not agreeing with Nelson’s analysis, I respect it, as well as the parties decision not to seek new language.

“Operational needs,” in context, means more than that staffing will differ from that under a 5-8 system. The impact of that difference must interfere with the ability to accomplish operational objectives. Were the test otherwise, “operational need” would be more surplus age. The inquiry thus focuses on the reasonableness of the Department’s conclusion that the identified impact (1) “may” occur and (2) was adverse, rather than merely different from 5-8.[33]

In analyzing the above language it is important to remember that it must be read in the context of the decision as a whole. Therefore, other provisions of Springfield Detectives are equally critical, such as:

The proposed 4-10 schedule certainly would have provided less coverage on Mondays and Fridays than the standard 5-8 schedule. This is a foreseeable impact from 4-10 on any office that is open five days per week. The risk of reduced coverage on some days, standing alone, is therefore only the beginning of the inquiry.[34]

In reading the foregoing, as well as the Springfield Detective decision as a whole, it is readily apparent that Lieutenant Simon’s did not comply with the decision making framework outlined by Arbitrator Nelson. Specifically, Arbitrator Nelson would view the fact that Lieutenant Simons schedule provides slightly more patrol bodies during commute time, as the beginning of a contractually required analysis, not the conclusion of the analysis. I believe that Arbitrator Nelson would find that Lieutenant Simons looked only at “staffing levels,” but not at the actual “operational needs” of the Department.

Lieutenant Simons did not engage in any analysis of how the staffing level proposed by the Association would impact operational needs. Rather, Lieutenant Simons viewed the slightly lower staffing levels during commute time in the Association’s proposal as being fatal to the proposed 4-10 schedule. In the instant case, there was little testimony and no documentation of how the Association’s proposal would negatively impact the Employer. Would there be more traffic accidents? Would more citations be written under the 5-8? Does one of the schedules negatively impact officer safety? Do crimes occur more frequently during commute time? These are all questions not addressed at the hearing.

The analysis of a proposed 4-10 schedule in this case is very different than the analysis performed by the Department in Salem Forensics.[35] In Salem Forensics, the Department’s representative (Lieutenant Aas) determined that a staffing level of two employees per shift was required. However, the need for the two employee staffing level was clearly supported by departmental needs: the need to provide for “work checking” and the need for a safe workplace. In the instant case, there is no showing that the proposed schedule would “interfere with the ability to accomplish operational objectives.”[36] I find the methodology used by the Department to apply it’s operational needs criteria was unreasonable because it failed to conform to the test crafted by Arbitrator Nelson.

The burden is on the Association to establish that the Department was unreasonable or arbitrary in applying its operational need criteria. The Association has demonstrated by a preponderance of the evidence that the Department has failed to comply with Arbitrator Nelson’s framework for determining reasonableness. Accordingly, the Department acted unreasonably in applying it’s operational needs criteria and violated section 14.7 of the Collective Bargaining Agreement.

The Department shall, as soon as practical, implement the last 4-10 schedule proposed by the Association, or in the alternative, any other 4-10 schedule that management might choose.

All fees and expenses charged by the Arbitrator shall be borne by the Department, as provided for in Section 12.3 in the parties Collective Bargaining Agreement.

[1] Exhibit J-1.

[2] The only relevant change to the language of Article 14.7 since it was adopted is that the 1995-97 work group was redefined in Article 14.7.3 such that the motorcycle unit was made a separate work group. Exhibit E-21 at 15.

[3] Exhibit A-12 (cp).

[4] Exhibit A-14 (cp).

[5] Exhibit A-7 (cp).

[6] Exhibit A-7 (cp).

[7] Exhibit A-1 (cp).

[8] Exhibit A-2 (cp) at 2-3. In addition to the factors cited in Exhibit A-2, by memorandum dated October 16, 1998, the Department indicated that the 5-8 shift is more effective in patrol coverage. See Exhibit A-14 (cp).

[9] Exhibit A-16 (cp).

[10] Oregon State Police Officers’ Association v. State of Oregon, (Salem Forensics’ 4-10 Grievance), unreported (Gaba, September 1999).

[11] Exhibits A-2 and A-3. See also, Elkouri and Elkouri, How Arbitration Works, at 615 (5th ed. 1997).

[12] The Association contends that because the prior arbitration awards have found the language of the Collective Bargaining Agreement to be clear and unambiguous, it is not necessary to resort to bargaining history or other parole evidence to interpret the language of the contract. Further, because the terms “adversely affected” and “adversely impacted” are not defined by the contract, the plain meaning of the terms should be applied. For the purpose of interpreting these terms, the Arbitrator may resort to the dictionary definition. By using the dictionary definitions of adversely, affect and impact, the Association developed this test which it urges the Arbitrator to apply.

[13] Under 14.7.1, the contract provides that “[t]he Department may deny a 4-10 request or discontinue an approved 4-10 shift without employee vote if it determines the shift may/has adversely affected(ed) a Department operational need.” Exhibit J-1. Article 14.7.7 further provides, “[i]f the request to move to a 4-10 shift is initially denied, or has been discontinued, the affected work group may provide additional information to the immediate division supervisor(s) that the 4-10 shift will not, or has not, adversely impacted operation need, for the supervisor’s reconsideration.” Id.

[14] Association’s Post-Hearing Brief at 13.

[15] Id.

[16] Id. at 12 (citing Exhibit A-3 at 15-16).

[17] Id. at 17.

[18] Id. at 18.

[19] Id. at 19.

[20] Id. at 20.

[21] Id at 17.

[22] Id. The Association also maintains that when the parties negotiated this language, it was intended to confer a benefit upon the employees by allowing them to go to a 4-10 shift, and that this benefit cannot be denied unless there has been “a determination that there has been a concrete impact on an operational need, which is adverse to that operational need, and different from that found under the 5-8 shift.” Association’s Post Hearing Brief at 16.

[23] Exhibit A-10 (cp).

[24] Association’s Post Hearing Brief, at 25.

[25] Exhibit E-37.

[26] Exhibit E-46 at 2.

[27] For support of this position, the Department cites to an unpublished arbitration opinion entitled OPEU and State of Oregon (ODOT), AAA Case No. 75 390 0021 94 (Snow, January 4, 1995).

[28] Elkouri and Elkouri, How Arbitration Works, at 490-91 (5th ed. 1997).

[29] Exhibit A-3.

[30] Exhibit A-10(cp), at 5.

[31] Exhibit A-2.

[32] Exhibit A-3.

[33] Id. at 15.

[34] Id. at 16 (emphasis added).

[35] Oregon State Police Officers’ Association v. State of Oregon, (Salem Forensics 4-10 Grievance), unreported (Gaba, September 1999).

[36] Exhibit A-3 at 16.

Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.