2000 NAC 116 Clark County and Clark County Custody Officers' Guild

Title: Clark County and Clark County Custody Officers' Guild
Date: October 16, 2000
Arbitrator: Michael E. Cavanaugh
Citation: 2000 NAC 116

The Guild contends that newly-hired custody officers attending mandatory training at the State Police Academy are entitled to pay during their scheduled lunch periods, just as regular custody officers receive paid lunch under the collective agreement. The Employer contends that a longstanding past practice supports paying those attending the academy 8.5 hours of straight time for each day of attendance and that nothing in the contract requires otherwise.

At a hearing held September 22, 2000 in Vancouver, Washington, the parties had full opportunity to present evidence and argument, including the opportunity to cross-examine witnesses. Counsel argued the issues at the close of the evidence and chose not to file post-hearing briefs. Based on the evidence of record and the arguments of the parties, I now issue the following Decision and Award.

The parties did not agree on the precise statement of the issue to be decided, but rather asked the Arbitrator to formulate the issue based on the presentations of the parties. I find that the Guild’s proposed statement of the issue encompasses the concerns of both the Guild and the County, and I thus adopt the following formulation of the matter before me:

Did the County’s payment of deputies at the Academy violate the contract? If so, what shall the remedy be?

The Guild represents the custody employees of the Clark County Sheriff, including new employees who must attend the State Police Academy in Burien, Washington before assuming their duties. The Academy is a “residential” program, i.e. students live in accommodations on campus. The daily schedule of the Academy varies, but with the exception of the final day (and one optional evening presentation) each day begins at 0730 hours and ends at 1630 hours. Exh. C-14.[1] Scheduled lunch periods range from none (e.g. 10/15/99 and 10/29/99) to one and one-half hours (e.g. 10/6/99, 10/8/99, 10/11/99, 10/13/99, 10/18/99, 10/22/99, and 10/25/99). Id. There are also regular breaks, and the testimony established that on some days students are released early.[2]

The County paid Academy attendees 8.5 hours of straight time per day. The evidence established that there had been a long history of paying those attending the Academy in that way. But the Guild contends that in its first contract with the County, Exh. G-2, the County agreed to grant all “employees” a paid lunch period. Art. 10.3. Previously, the deputies had not received paid lunch periods, and the Guild representatives testified that it was their intent that the paid lunch would apply to all employees, not just those with shift assignments specifically identified in the contract. The County responds that nothing in Section 10.3 was intended to apply to Academy attendees who are “pre-probationary” employees (see Art. 2, “Definitions,” “Probationary Period”).

In addition, the County argues, in denying an earlier grievance over Academy pay, the County provided copies of excerpts from the FLSA provisions that exempt training hours from overtime calculations and copies of denials of claims for overtime at the Academy.[3] The Guild then negotiated a replacement contract (Exh. G-3) with knowledge that the County took the position that nothing in the law or the collective bargaining agreement required paid lunch or overtime for Academy deputies. The Guild counters that it bases its arguments here on the contract, not the FLSA, and that it withdrew earlier grievances in response to procedural arguments advanced by the County, not on the merits. The Guild also argues that it had no obligation to seek a change in contractual language to gain paid lunch periods for the Academy because the language already in the agreement provided that all “employees” are entitled to a paid lunch.[4]

The Guild argues as follows: all “employees” are entitled to a paid lunch; deputies attending the Academy are “employees;” therefore, deputies at the Academy are entitled to a paid lunch. Collective bargaining relationships and the agreements that embody them, however, are complex, and the process of resolving disputes about the meaning of contract language is seldom reducible to a simple reading of contract language divorced from the context in which the parties agreed to it. No doubt for that reason, the Guild introduced evidence of its intent in seeking to have paid lunch periods included in the collective bargaining agreement. What was missing from the Guild’s presentation, however, was evidence that the County understood and agreed with the Guild’s intent that the paid lunch would apply at the Academy.

In light of past practice (admittedly pre-contract), and in light of other provisions of the agreement—together with the absence of evidence that the parties expressly negotiated about the pay of deputies attending the Academy—I am constrained to find that the language of the contract, when interpreted in context, does not support the Guild’s position.

First, I note that Guild President Mark Davis did not contend that the parties specifically agreed that Art. 10.3 would apply at the Academy. Rather, Davis testified about his intent that it would apply there. But Davis also testified that his expression of that specific intent to the County during bargaining was essentially limited to talking about a paid lunch benefit for Guild members, “not just some members.” Davis Test. Under these circumstances, and given the admitted longstanding practice of paying deputies at the Academy as the County paid them here, I find that it was reasonable for the County to assume that Art. 10.3 did not apply to the Academy. In other words, a change in payroll practices of this magnitude, including paying overtime at the Academy where the County has no control over the schedule, would ordinarily be something specifically and expressly negotiated between the parties.

Other provisions of the contract exhibit mutual recognition of the importance of overtime to the County. For example, in Art. 10.4.1, the parties have agreed that “All overtime must be authorized by the Sheriff or his/her authorized representative prior to being worked.” While I recognize the potential argument that Academy overtime is “authorized” by the act of sending the deputies to the Academy knowing that the regularly scheduled day runs from 0730 to 1630 hours, I find in Art. 10.4.1 a mutual recognition by the parties that overtime expenses in a taxpayer-funded corrections facility must be tightly controlled. That mutual recognition is an additional reason that the County might reasonably expect to negotiate expressly with respect to any changes in the historical manner of paying Academy deputies.

In sum, I find that there was no meeting of the minds, in Art. 10.3, that deputies at the Academy would receive one-half hour of paid lunch.[5] While there is force to the argument that those deputies should be paid for their entire scheduled day, just as regular deputies are, that is a matter for the parties to negotiate, not for the Arbitrator to impose. In that regard, I note that the County contends that the matter of pay for Academy deputies is bargainable, at any time the Guild requests, pursuant to Art. 10.1.2. My decision expressly takes account of this reading of Art. 10.1.2, and I will incorporate it in my Decision and Award.

Having fully considered the evidence and argument of the parties, I issue the following award in this matter:

The Employer did not violate the contract in paying deputies at the Academy in October 1999 for 8.5 hours of straight time pay per day of Academy attendance;

Upon proper request by the Guild, the County will enter into good faith negotiations pursuant to Art. 10.1.2 over the payment of deputies attending the Academy; and

As provided in Art. 19.7 of the parties’ agreement, the Guild shall bear the fees and expenses of the Arbitrator as the “losing party.”

[1] Exhibits offered by the County are denominated “Exh. C-___.” Exhibits offered by the Guild are denominated “Exh. G-___.”

[2] The evidence did not establish to what extent students utilize extended lunches and/or early release days to study, prepare for mid-term or final examinations, or otherwise use the time for matters directly related to Academy attendance rather than for personal matters.

[3] Guild representatives testified they recalled receiving the FLSA materials, but not the overtime denials.

[4] I have carefully considered the additional arguments made by the parties, but I do not find resolution of them necessary to decide this grievance.

[5] I believe it would be more accurate to describe the Guild’s position as contending that Academy deputies should be paid for their entire scheduled day, i.e. from 0730 to 1630. By my count, on more than half the days on the Academy schedule, see Exh. C-14, it could be argued that deputies did receive pay for at least one-half hour of lunch. That is so because the scheduled lunch exceeded 30 minutes during the nine hour Academy day, but the County’s policy of paying 8.5 hours paid as if the lunch period were only one-half hour. On those days when the lunch period was scheduled for 90 minutes, for example, attendees received 8.5 hours of pay for 7.5 hours of “work.” The effect is that the County paid them for one hour of their lunch period. On days when the scheduled lunch period was one hour, it could be argued that the County paid one-half hour of lunch (8.5 hours of pay for 8.0 hours of “work”). Only on those days in which the schedule provided lunch periods of 30 minutes or less did the Academy deputies fail to receive pay for at least some portion of the lunch break.