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Title: Utah Transit Authority and Amalgamated Transit Union Local 382
Date: November, 2000
Arbitrator: Jack H. Calhoun
Citation: 2000 NAC 122

  IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

AMALGAMATED TRANSIT UNION,            )

LOCAL 382,                                                               )

                                                                                    )                       OPINION

and                                                                               )                       AND

                                                                                    )                       AWARD

UTAH TRANSIT AUTHORITY.                                   )          

                                                                                                                                                        

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

August 14, 2000

Salt Lake City, Utah

 

 

______________________________________________________________________________

 

REPRESENTATION

 

FOR THE UNION:                                                        FOR THE EMPLOYER:

 

Steve Booth                                                                 John Paul Kennedy

President/Business Agent                                             Attorney at Law

Amalgamated Transit Union                                        1385 Yale Avenue

Local 382                                                                     Salt Lake City, Utah 84105

2261 South Redwood Road, #G

Salt Lake City, Utah 84119

 


BACKGROUND

            The Amalgamated Transit Union, Local 382 (the Union) and the Utah Transit Authority (the Employer) are parties to a collective bargaining agreement that provides that premium pay at one-half the regular rate be paid to regular operators for work performed in excess of a twelve and one-half hour spread of time during a day.  The Employer’s practice was to pay overtime to operators who worked more than 40 hours in a week.  The Employer did not add the spreadtime pay to the overtime pay, instead it paid the greater of the two, but not both.  The Union filed a grievance contending to Employer was required to pay the spreadtime premium and the overtime premium when an operator worked in excess of the twelve and one-half spread and in excess of 40 hours in a week.  Post hearing briefs were submitted on October 16, 2000.

ISSUE

            At the hearing, the parties agreed the matter was properly before the arbitrator.  They also agreed that the issue is whether the Employer violated the collective bargaining agreement, specifically Article 38, when it refused to compound or pyramid overtime and spreadtime premiums.

RELEVANT CONTRACT PROVISIONS

            The parties’ 1995-1998 contract was amended midterm in 1997 and provided, effective November 1997, in pertinent part, as follows:

            ARTICLE 13: PROCEDURE FOR GRIEVANCES

            . . .

STEP FOUR: If the matter is not settled by the GRC within twenty-one (21) days after the Step Two answer, the Union may request arbitration under Article 14, provided such request is made within twenty-eight (28) calendar days after the Step Two answer.  The selected arbitrator shall review the same facts and evidence as were presented before the GRC together with any new facts and evidence subsequently discovered and promptly brought to the attention of the other party and shall then either sustain, modify or rescind that decision as deemed justified by the facts and evidence.

            . . .

 

            The following provision of the agreement was deleted as a result of the mid-term amendment:

            ARTICLE 35: OPERATOR RUN SELECTION

            . . .

At each general or emergency sign-up, the authority shall post at least fifty-eight percent (58%) of all regular runs with a spread of eleven (11) hours or less.  For the purpose of computing the fifty-eight percent (58%), one-half (1/2) of all vacation relief runs will be counted as runs with a spread of eleven hours or less.  When it is an employee’s turn to bid at the sign-up, they shall be required to select an assignment from the selections open to them.

 

ARTICLE 38: OVERTIME FOR REGULAR OPERATORS

            . . .

Regular operators shall be paid at one and one-half times their regular straight-time rate for all work performed in excess of a twelve and one-half hour spread.

            . . .

 

            Prior to the midterm amendment Article 38 provided that the spreadtime premium be paid for work in excess of a 14-hour spread.

STATEMENT OF FACTS

            Transit system operations in general require that unique work schedules for motor coach operators be used.  Typically, an operator will be scheduled to drive a route in the morning hours and return to drive another route later in the afternoon or evening hours.  The total time between the time the operator begins his work and when he finally leaves for the day is called a spread or spreadtime

            The Employer’s operations are no different than most such operations with respect to work schedules.  Of the approximately 800 operators, 500 are regular operators who are able to bid on their assignments every four months.  They then know what time they will start to work, how long the off-duty break will be, and what time they will finish.  Some of the most senior operators are able to choose work that consists of consecutive assignments and work a straight eight-hour shift.  However, the number of those assignments is low compared to the overall number of assignments.

            The remaining operators, the nonregular, or extra board operators, are those who have not achieved regular operator status and must endure the inconvenience and unpredictability of a varying and inconsistent work schedule.  They are scheduled to fill in, as needed, with little notice.  Their total hours per week could range from 20 to 60 depending on workload availability.  Turnover among these operators is high.

            The Employer employed a consultant to study the high turnover rate.  The turnover rate was six to seven percent among regular operators.  It was 35 percent among nonregular operators.

            As a result of the consultant’s recommendations, the Employer’s general manager and the Union’s president organized a task team made up of management and union representatives to study and recommend improvements in working conditions for the nonregular operators and for the regular operators, although the prime focus of the team’s effort was not directed at regular operators because their working conditions were not causing recruitment and retention problems.

            The team met regularly and explored numerous ideas to address the problem.  It worked within parameters that had been set previously, namely that its work would have to be approved by the Utah Transit Authority board of directors and by the membership of the union.  In addition to those two parameters, there existed a funding limitation.  Financing was a factor that the team had to consider for any proposal it reached.

            While the team’s direction was toward making recommendations for improving working conditions among the nonregular operators where the high turnover rate existed, as a practical matter, the team members acknowledged it would be necessary to make recommendations for some changes for the regular operators.  The team realized it had to be cautious not to create a windfall for some employees and give nothing to others.  That realization led the team to recommend improvements for both the regular operators and nonregular operators.

            During the course of its many meetings over several weeks, the team developed an extensive “wish list” of possible improvements.  The list was narrowed down over the course of time and ultimately put into a matrix that showed, among other things, that each item had to be financially feasible.  Members of the team jointly calculated costs, including the cost of spreadtime.

            During the July 10th team meeting, in a small group of representatives of both the Employer and the Union, the matter of the cost of the proposed change in Article 38 of the collective bargaining agreement from 14 hours to 12.5 hours was discussed.  All present in the meeting acquiesced in the decision regarding how the true additional cost of the change in spreadtime would have to be calculated: overtime premium pay would be subtracted from  spreadtime, compounding or pyramiding of the two was not to be done.

            On several occasions during meetings of the team or small groups thereof, the Employer’s human resources director stated management’s position regarding the issue of compounding or pyramiding spreadtime and overtime premiums.  He said the Employer would continue its practice of not compounding or pyramiding the two.  He said if spreadtime exceeded overtime, the Employer would pay spreadtime thereby satisfying its practice of paying overtime at one and one-half the rate of regular pay for hours over 40 in a week.  The Employer does not pay overtime on a daily basis.  If a regular operator works more than eight hours in a day, the operator does not receive overtime pay.  If overtime exceeded spreadtime, the Employer pays overtime.

            The team reached agreement on the proposed change to the spreadtime provision in the agreement and its annual cost of $100,000.  Several other changes in working conditions were agreed to.  With the exception of one, they are irrelevant to the issue in dispute here.  The parties agreed to delete the contract provision that guaranteed a percentage of the posted work would be 11 hours or less in spreadtime.  The spreadtime provision was changed to provide that regular operators would be paid a premium of one and one-half times their regular straight time rate for all work in excess of a 12.5 hour spread.

            Under the prior collective bargaining agreement covering 1995-1998, Article 38 provided that regular operators would be paid a premium of one and one-half their straight time rate for all work in excess of a 14-hour spread.  During that period of time, the Employer did not have regular operator assignments, or runs, that exceeded the 14-hour spread.  Based on that fact, the Union had no way to know how the Employer handled situations where an operator earned spreadtime and overtime premium during the same week.

            When the question of compounding spreadtime and overtime was mentioned during team meetings, the director of human resources attempted to clarify the matter by stating that it would not be done.  The individuals on the team who participated knew the assumptions he used to calculate the cost.  Although he himself did the actual mechanics of making the calculations, several members of the team participated in the development of the proposals.

            After the team reached agreement on spreadtime and other items, members made a joint presentation to the UTA board of directors.  They advised the board that the increased costs for the spreadtime change would total about $100,000.  The board approved it.  The Union membership later ratified the agreement.

 

SUMMARY OF THE UNION’S POSITION

            The Union contends the Employer violated the collective bargaining agreement when it refused to pay spreadtime to regular operators who also worked overtime.  The agreement reached by the parties said regular operators would be paid spreadtime if their work exceeded the 12.5 hour spread.  It did not say they would be so paid unless they had overtime, nor did it say they would be so paid unless it was too expensive for the Employer to pay it.

            The Union agreed to remove language in the agreement that guaranteed the number of straight time runs available for regular operators to bid.  It regulated, to some extent the number of hours a regular operator would be required to work to get a full day.  The Union would not have agreed to delete that language had it known the Employer would try to mitigate its responsibility for premium pay.  The two premium pay provisions stand alone and should be paid independently of each other.

            It was clear to both the Employer and the Union that improvements in working conditions were needed and that it was going to cost money to make those improvements. During the meetings, money was discussed, but only in general terms, no dollar figures were discussed.

            The Employer’s contention that it has never compounded or pyramided overtime and spreadtime is disingenuous because it never scheduled a regular run for more than the 14-hour spread set forth in the agreement before it was amended in 1997.  There was never a stated policy on the issue of compounding or pyramiding, therefore, the Union had no reason to believe the premiums would not be paid in accordance with what the Union believed the agreement was.

            The transcript made from a tape recording of the July 10th team meeting should not have been admitted into evidence and should not now be considered as evidence.  Article 13 of the collective bargaining agreement requires that the arbitrator only consider facts and evidence previously presented to the grievance review committee and new facts and evidence subsequently discovered where they are promptly brought to the attention of the other party.  The Employer knew about the transcript before the hearing, however, it failed to bring it to the attention of the Union.  The exhibit and all testimony related to it should be removed from the record and should not be considered by the arbitrator.

            If the new evidence is considered by the arbitrator, the Union’s argument is as follows.  The conversation taped that supposedly showed that the Union president knew and agreed with the Employer’s method of deducting premium pay is only a small segment, three minutes, out of the entire 15 hour day and it is taken out of context.  The calculations that were being made were only ball park figures.  The real calculations were the responsibility of the Employer.

            Moreover, the only way one could calculate the true additional cost was to take current experience, calculate the new spread premiums as it applied to current experience (12.5 hours spread to 14 hour spread) and multiply the new spreadtime by one-half of the current wage rate for operators (the additional premium for spreads over 12.5 hours).  This would give total cost for the new spreadtime premium.   If you wanted total run cost you would add back the overtime premium that was originally deducted.

            The Employer seems to argue that the agreement should be overturned because it is too expensive.  Perhaps the Employer’s representatives miscalculated the true cost in the presentation they made to the Board of Directors and are now trying to have the cost to the Employer imposed by someone else.

            The fact is the Employer entered into negotiations with the Union and came to an agreement that the membership and Board ratified.  The Agreement is specific.  It does not provide for exclusions.

SUMMARY OF THE EMPLOYER’S POSITION

            The Employer contends it did not violate the collective bargaining agreement, including the supplemental letter of agreement, because nothing in those documents requires it to compound the overtime and spreadtime premiums.  The bargaining history of the parties shows there was an express understanding that two premiums would not be compounded.  The past practice of the parties also shows a long history of not compounding such premiums.

            The intent of the parties is a critical element in deciding this case.  The facts show the parties did not intend to pyramid or compound premium payments when they agreed to change the spread limitation from 14 hours to 12.5 hours.

            Both parties had knowledge and notice of how the contract would be applied and they acquiesced to its application in the manner asserted by the Employer.  The greater of one or the other would be applied, but not both.  The director or human resources repeatedly stated there would be no pyramiding or compounding of the overtime and spreadtime premiums.

            The parties recorded much of their discussions.  One tape reflects the method used by the parties to calculate the annual cost of the spreadtime change.  It shows that the Union understood that in determining the cost of the improvement, one premium would be subtracted from the other to arrive at the net figure.

            The parties acquiesced in the no-pyramiding concept.  The Union worked with management to arrive at projected costs.  The parties jointly presented them to the Board.  No one objected to the costs or their manner of computation.  There is no evidence to show or suggest that the Union’s current position of adding $160,000 in costs was ever suggested or considered.  Rather, the evidence shows the non-pyramiding method was agreed to and approved.

            The transcribed excerpt from the tape recording of the team discussion was not taken out of context.  The Employer offered to play the tape at the hearing, but the Union said it as not necessary.  The Union’s current position, therefore, must be rejected.

            The Employer has never compounded spreadtime and overtime premiums.  The Union offered no evidence to the contrary. Over the past few years, the Employer has been able to avoid scheduling runs that exceeded the 14-hour spread.  The practice of not compounding did exist, however, for many years before.  At the time of the team discussions, no one presented anything to show that the practice to which the director of human resources made reference was invalid or not binding.

            The only change in the agreement was to alter the number of hours in the spread limitation.  Nothing was done to change what had been the practice.  No evidence was offered to show the union ever objected to the previous interpretation of not pyramiding under similar language in prior contracts.  Nothing in the parties’ letter of agreement warrants an inference that the parties intended to change the old practice of not pyramiding or to begin a new practice of pyramiding premiums.

            No provision of the collective bargaining agreement requires the Employer to pyramid or compound overtime and spreadtime premiums. Its practice, going back fifteen years, is to pay one or the other, but not one on top of the other.  The Union offered no evidence to the contrary and no change in the contract required anything else.

            The mid-contract changes that were made meant better working conditions for all operators.  No employee was injured by the changes. The Union did not “give back” anything without gaining something in return.  The elimination of the 58% requirement for regular runs under 11 hours was offset by increasing the number of regular runs by 20%.  It meant 80 more operators would become regular operators.  The elimination of the 58% requirement was necessitated by the large increase in regular runs and to gain cost efficiency. If the 58% requirement had not been eliminated, the Employer would have had substantial cost increases from additional overtime, which would have in turn prevented agreement on other issues which were also expensive.

            Under several principles of contract interpretation, the Employer’s position should be upheld.  The intent of the parties should control in considering contract language.  Language should be construed to avoid harsh results and whenever possible, language should be interpreted to avoid penalizing a party or provide a forfeiture.  All terms of an agreement should be given effect.

            Under circumstances such as those in the present case, past practice offers assistance in interpreting the intent of the parties.  Where an employer has always done a certain thing and the matter is so well understood and taken for granted that it may be said the contract was entered into upon the assumption that the customary action would continue to be taken, such customary action may be an implied term of the contract.

OPINION

            The Union had the burden to prove by a preponderance of the evidence that its interpretation of the language in the collective bargaining agreement is the correct one.  When construing the language of contracts, it is necessary to focus on the intent of the parties.

            Arbitrators attempt to determine the intent of the parties by reading the agreement as a whole.  Intent is generally found in the words the parties use in the agreement; however, the imperfection of language often makes it impossible to know the parties’ intention without examining the circumstances and the parties’ objectives.  Bargaining history and the parties’ administration of the agreement may be helpful.  The intent manifested by the parties to each other during negotiations by their communications and by their proposals may be considered in determining the meaning of contract language.  See Labor and Employment Arbitration, Vol. 1, 1997, Section 9.01[3], Bornstein, Gosline and Greenbaum, general editors, Matthew Bender & Company.

            The Union’s argument that it had no way to know what the Employer’s past practice had been with respect to compounding or not compounding the spreadtime and overtime premiums is a sound one.  The Employer’s director of human resources testified that the Employer had not had occasion to address the question during the term of the 1995-98 collective bargaining agreement because no runs had been scheduled in excess of the contract maximums of 14 hours.  He said his office could find no specific example to show that an operator with a 14-hour run also had overtime built into it during the term of that agreement.

            For that reason, the Employer’s past practice argument must fail.  A past practice is a pattern of prior conduct consistently undertaken in numerous situations so as to become an understanding of both parties.  The Union had no knowledge of the practice based on the 1995-98 contract period experience.  However, the evidence on the record shows unmistakenly that the Union knew that the Employer’s proposal during team meetings on the spreadtime issue was to deduct the smaller of either spreadtime or overtime from the larger of the two whenever a regular operator earned both.  The excerpt from the tape of the July 10th session and the corroborating evidence consisting of the testimony of the human resources director, operations supervisor and director of bus operations, all of whom participated on the team, and whose testimony was credible, are persuasive and cannot be ignored.  Team participants understood  how the two premiums were to be calculated.  All three management witnesses had specific recollections that the human resource director advised the team and individual groups made up of team members from both sides that there would be no compounding of the spreadtime and overtime premiums.

            Contrary to the Union’s position stated in its post hearing brief, the transcript of the excerpt of the tape recorded at the July 10th meeting was not new evidence subsequently discovered and its admission into evidence did not violate Article 13 of the collective bargaining agreement.  The Union knew the team sessions were recorded.  It could have obtained a copy by asking.  The transcript of the excerpt was simply a written version of the tape about which the Union knew.  Moreover at the hearing, the Union declined the opportunity to review the tape, saying it did not need to listen to it.  The accuracy of the transcript of the tape is presumed.    There is no evidence on the record to show the excerpt was taken out of context.

            It is logical to conclude from the excerpt  that if the Union thought, at that time, that the change from a 14-hour spread to a 12.5 hour spread would be in addition to overtime, the team members would not have done the subtraction that is talked about in the transcript.  They would have calculated the spreadtime at its full amount on top of any overtime that was currently being paid.  That would have represented a cost of $260,000, not $100,000.

            It would be inconsistent and contrary to the evidence on the record to find that the team members talked only in general terms about money and item cost.  There is sufficient, credible evidence on the record to support the conclusion that the team and its individual members discussed, in detail, costs and all their ramifications. 

            Of the conflicting testimony given by the parties’ witnesses regarding the nature and depth of detail in the discussion by team members about costs and whether management representatives


explained that spreadtime and overtime would not be compounded, the credibility issue must be resolved in favor of the Employer.  Both Union and Employer witnesses gave believable testimony; however, of the conflicting accounts of what took place regarding the compounding of the two premiums, the accounts testified to by Employer’s witnesses are the more plausible.  See John Flagler, “Modern Shamanism and Other Folderol — The Search for Certainty in Arbitration”, proceedings of the 39th Annual Meeting, National Academy of Arbitrators (BNA Books, 1987).

            In a contested case proceeding such as this, where there is a dispute about the facts of an earlier event, the finder of fact cannot acquire a belief of what actually happened, instead the finder of fact can only acquire a belief about what probably happened.  See “Evidence in Arbitration”, Hill and Simicropi, 2nd Edition, (BNA Books, 1986), 112.  In the instant case, it is more probable than not that the testimony of the Employer’s witnesses accurately reflects what happened during team discussions and presentations about compounding the two premiums.

            The Union agreed to eliminate Article 35 of the agreement during the mid-contract discussions.  It now argues that “give back” was the quid pro quo for compounding the spreadtime and overtime premiums.  That argument, however, ignores the fact that the Union gained 80 new regular operator runs for its members.  It is unlikely the Employer could have agreed to the change in the spread requirement from 14 to 12.5 hours and let Article 35 remain intact.  It would have been very costly and inefficient.

            The Union’s position on the issue in dispute here is not being rejected because the cost to the Employer would be too great if the Union prevailed.  It is being rejected for the reasons previously stated and because there is insufficient evidence on the record to support a contrary conclusion.  The Union had the burden to prove its position by a preponderance of the evidence.  It failed to do so.

            Team members, both Union and management, performed some of the cost calculations for the items that were under serious consideration.  It would be inaccurate to say costs were addressed in a general fashion.  Pyramiding or compounding of the spreadtime premium and the overtime premium would be inconsistent with the method of cost calculation used during team discussions.

            There is substantial evidence to show that the Union had knowledge and notice of how the agreement, as regards the issue in dispute, would be applied.  It consented to that application.  The parties’ intent was manifested during the team discussion and presentations.  That intent was that the spreadtime premium and the overtime premium not be pyramided or compounded.  The Employer did not violate Article 38 of the collective bargaining agreement when it refused to compound or pyramid the two premiums.  Accordingly, I will enter an award reflecting that conclusion.            AWARD

            The grievance is denied.

            Dated this the _____ day of November 2000.

 

 

 

                                                                                    ____________________________________

                                                                                    Jack H. Calhoun

 

104-00UT

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