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Title: Lewis & Clark County, Cooney Convalescent Home and Montana Public Employees Assoc
Date: January, 2000
Arbitrator: Jack H. Calhoun
Citation: 
2000 NAC 124

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

MONTANA PUBLIC EMPLOYEES                )

ASSOCIATION,                                                   )                              

                                                                               )                              

                                                Union,                    )              

                                                                               )                OPINION AND AWARD

                and                                                        ))

                                                                               )

LEWIS & CLARK COUNTY,                               )              

COONEY CONVALESCENT HOME,                )

                                                                                )

                                                Employer.               )              

________________________________________________________________________________

 

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

Case Submitted on Stipulated Facts

 

________________________________________________________________________________

 

REPRESENTATION

 

FOR THE UNION:                                                                  FOR THE EMPLOYER:

CARTER N. PICOTTE                                                               SHEILA D. COZZIE

STAFF ATTORNEY                                                                          PERSONNEL OFFICER

MONTANA PUBLIC EMPLOYEES ASSN.    LEWIS & CLARK COUNTY.

P. O. BOX 5600                                                                     P O BOX 1724

HELENA, MT 59604                                                                      HELENA, MT 59624

 

 

 

 

 


BACKGROUND

 

                The Montana Public Employees Association (the Union) and Lewis and Clark County (the Employer), are parties to a collective bargaining agreement that governs the terms of employment for certain employees in a bargaining unit represented by the Union.  Among other things, the agreement provides for seniority under certain circumstances.  The Grievant, Myra Haddix, through the Union, challenged the County’s interpretation and application of the seniority provision of the agreement as it applies to work scheduling.  The parties agreed the matter was properly before the arbitrator for a decision and they stipulated to the facts.

ISSUE

                The issue presented is whether the collective bargaining agreement requires the Employer to schedule the Grievant’s work shifts so that she has weekends off.

RELEVANT CONTRACT PROVISIONS

                The following provisions of the parties’ collective bargaining agreement are relevant to the issue in dispute:

                ARTICLE 3 — EMPLOYEES’ HOURS

                . . .

G.  Employees shall be schedule five (5) consecutive shifts and have two (2) consecutive days off whenever possible, but the employer and employee may agree to schedule otherwise.

                . . .

K.  Not later than 5:00 p.m. four (4) working days preceding the next pay period the Employer will arrange and post on a suitable bulletin board in the Nursing Home, a schedule of the Employee’s working hours for the following pay period.  The work schedule shall not be changed except for case of an emergency.

                . . .

                ARTICLE 4 — MANAGEMENT RIGHTS

                Management rights retained by the Employer shall include but not be limited to those management rights established in Montana state law pursuant to Section 39-31-303, MCA, except the provisions of this Agreement.  The rights established pursuant to Section 39-31-303, MCA, are as follows:

                Public employees and their representatives shall recognize the prerogatives of public employers to operate and manage their affairs in such areas as, but not limited to:

                1)                direct employees;

                2)                hire, promote, transfer, assign, and retain employees;

3)             relieve employees from duties because of lack of work or funds or under conditions where continuation of such work would be inefficient or non productive;

                4)                maintain the efficiency of government operations;

5)                determine the methods, means, job classifications, and personnel by which government operations are to be conducted;

6)             take whatever actions may be necessary to carry out the missions of the agency in situations of emergency;

                7)                 establish the methods and processes by which work is performed;

 

                All management of the facility and the direction of its employees is vested exclusively in the Employer.  All matters not specifically and expressly covered or treated by the language of this Agreement may be administered by the Employer in accordance with such policy or procedure as the Employer may determine.

                . . .

                ARTICLE 12 — SENIORITY AND AVAILABLE HOURS

                . . .

D.  Senior qualified employee shall receive first consideration in regard to transfers, scheduled hours, and promotions in their classifications.  The most senior employer, if qualified, shall be promoted or transferred to the requested shift.

                . . .

I.  The Employer will post a schedule of shifts pursuant to paragraph K, Article 3 and employees will select, by classification seniority, the desired shift which provides for the designated days off.  Vacancies will be posted for not less than five (5) calendar days and shall remain posted until filled.  Present employees will be provided first preference provided they are qualified and have the abilities to perform the required work.  Questions regarding the application of this provision shall be subject to the grievance procedure contained herein.

 

STATEMENT OF FACTS

 

                The parties agreed to the following facts and they agreed those facts constituted a sufficient basis, along with the collective bargaining agreement and the briefs of the parties, for the arbitrator to decide the issue in dispute.

                1.  The parties agree that at all material times, there was and is in force and effect between them a collective bargaining agreement, a copy of which is attached hereto as Exhibit “A” and by this reference made apart hereof for all purposes.

                2.  The Grievant is, and at all material times was, a member of the bargaining unit covered by the collective bargaining agreement, and is and was a full-time permanent employee entitled to all of the rights and protections afforded by the collective bargaining agreement.

                3.  The Grievant is the most senior member of the bargaining unit referred to in the collective bargaining agreement, and the controversy between the parties has arisen over the proper interpretation of certain clauses of the collective bargaining agreement and the application of the seniority of the Grievant in the scheduling of work shirts.

                4.  The Employer operates a nursing home which requires staffing in certain areas 24 hours per day, 7 days per week.  Grievant is employed at the laundry and housekeeping department of the institution and this department is one which requires staffing seven days per week, but not 24 hours per day.

                5.  It is and has been the practice of the Employer to schedule employees’ work hours in Grievant’s department for a full two-week pay period 10 days prior to the beginning of the pay period.  The parties agree that there is no controversy concerning this method of scheduling in terms of the notice period or the period for which the schedule is set.  Nine examples of the biweekly schedule for the period from November 22, 1998 through March 27, 1999, are attached hereto as Exhibit “B”.

                6.  The parties agree that there is, and at all material times was, sufficient staff available to meet staffing requirements, and that the controversy between the parties does not refer to periods of emergency or unanticipated circumstance.

                7.  The parties agree that staffing levels are sufficient that, in the absence of emergent or unforeseen circumstances, the scheduling of Grievant’s shift could be accomplished as required.

                8.  The parties agree that there are no binding “past practices” that affect the application of the collective bargaining agreement to this controversy.

POSITION OF THE UNION

                The Union contends that the seniority clause in the collective bargaining agreement requires that the Grievant, who is the most senior employee in her classification and department, be accommodated so as to allow her to have weekends off.  The parties agreed there is sufficient staff to allow the Employer to give her the shift and that scheduling such a shift is possible.

                The scheduling is done often and no significant investment of management resources would be required to adhere to the terms of the collective bargaining agreement.  The frequency of the scheduling change makes the flexibility of the system sufficient to meet any new circumstances that may arise.

                The collective bargaining agreement contemplates scheduling by seniority.  Article 12 is entitled, “Seniority and Available Hours”.  The language in the article, “first consideration in regard to . . . scheduled hours . . .”, contemplates that senior employees not only receive preference in the choice of available shifts, but, in ordinary circumstances, are entitled to reasonable input into the preparation.  Within the context of this agreement, a scheduling manipulation could be done to make preferred shifts disappear.  There are no significant impostures or inefficiencies that would accrue to the Employer if the Grievant is given the schedule she requests.

 

POSITION OF EMPLOYER

                The Employer contends the collective bargaining agreement preserves to the Employer the right to schedule hours for its employees and to make assignments to them.  The agreement gives employees the right to choose shifts, but not to determine the length, timing or duration of those shifts.

                The Employer’s policy is that all employees in the bargaining unit be required to work at least one weekend shift.  In larger departments exceptions to that policy have been made where the employee agrees to a different schedule.  In the Grievant’s department, specifically in the laundry duties area to which the Grievant is limited because she is not qualified to perform housekeeping duties, one laundry aide is required to be on the 5:30 a.m. to 2:00 p.m. shift seven days per week and one such aide on the 8:30 a.m. to 5:00 p.m. shift seven days per week.  Currently, the Grievant’s shift is 5:30 a.m. to 2:00 p.m.  Sunday through Thursday.  All full-time employees in the housekeeping and laundry department have five days on and two days off each week, some have Friday and Saturday off, some other days off, but all work at least one shift each weekend.  The recurring schedule arrangement makes for consistency in work scheduling and lets employees schedule their personal time accordingly.

                The Employer sets the schedule in accordance with the requirements of the collective bargaining agreement.  No language in the agreement requires that the senior employee receive weekends off, or any specific days off.  It only requires that the days off are two consecutive days.

                The language in Article 12, Section I, of the agreement has been interpreted by the Employer to apply only when a shift becomes vacant due to the termination of an employee.  Moreover, Article 12, Section I, says the Employer must post a schedule of shifts pursuant to Article 3, Section K, which says the Employer is responsible for setting employees’ schedules.

                If the language in the agreement is construed to mean that the Employer must post a blank schedule of shifts every two weeks and allow employees to sign up for their desired shifts, practical difficulties arise.  The Employer would have difficulty complying with the posting requirements of Article 3, Section K.  Recruitment of new employees would be more difficult because no consistent schedule could be provided.  It would be difficult to assure that less senior employees could be given five consecutive shifts and two consecutive days off.  A scheduling nightmare would ensue if seniority prevailed in shift setting.

                The present scheduling makes recruitment easier and is fair to employees.  The Employer needs experienced employees on evening, night and weekend shifts because of the nature of the business.  The same level of care must be provided during those shifts as is provided during other shifts.  Patient care would be compromised if some shifts were filled with less senior, less experienced employees.  Business necessity requires that senior employees work some of the non traditional shifts.

                The Grievant is not qualified to work in housekeeping and cannot be scheduled to perform those duties as can other employees when it is necessary.  If she were scheduled so that she was off every weekend, the schedule would have to be changed for the entire department.  Other employees would have to change their established schedules to accommodate one individual.  This would lead to increased turnover, less experienced staff, decreased efficiency and decreased quality of care.

                The present schedule has been in use for a long time.  It has not been manipulated to make preferred shifts disappear.  No shifts have been changed for the purpose of depriving an employee with the employee’s desired days off.

                The Employer agrees that the Grievant should receive first consideration regarding scheduled hours; however, she cannot set the schedule.  She must consider the hours that the Employer schedules for all employees within her classification and choose the schedule she prefers.

OPINION

                The issue raised here is one of contract interpretation.  The Union had the burden to prove by an preponderance of the evidence that its interpretation of the pertinent provisions of the collective bargaining agreement is the correct one.

                It is a well-settled principle that the arbitrator’s duty is to determine the parties’ intent in adopting certain language to express their rights and obligations when he interprets their collective bargaining agreement.  In determining contractual intent, arbitrators rely on standards of contract interpretation, past practice and the principle of reasonableness.  Where the language of an agreement is ambiguous, as in the instant case, extrinsic evidence is useful to clarify intent.  A contract is ambiguous if it is reasonably susceptible to more than one meaning.  The parties agree that there are no binding past practices present here.

                When a provision is susceptible to two interpretations, one reasonable and the other unreasonable, the reasonable interpretation is preferred.  If the agreement can reasonably be interpreted to avoid harsh or absurd results, that interpretation is preferred.

                Contrary to the Union’s argument that no significant inefficiencies would accrue to the Employer if the Union’s position prevails, a number of difficulties with scheduling and with providing an even level of care to patients could arise.  If the agreement is interpreted to mean that employees are entitled to input in the preparation and setting of scheduled hours, the Employer would not only have difficulty meeting it obligations to is patients, it would have difficulty meeting its obligations under the collective bargaining agreement.  As argued by the Employer, recruitment and retention of employees would suffer.  If each employee were permitted to select from a blank schedule the shift the employee wanted, by seniority, for the following pay period, the Employer would have difficulty filling the schedule on time.  The Employer would have difficulty ensuring that less senior employees were given five consecutive shifts and two consecutive days off as required by the agreement.

                Interpreting the agreement so as to accommodate the Grievant’s wish would not only be unreasonable it would have far-reaching ramifications because the Employer would have to treat every employee in the bargaining unit in accordance with that interpretation.  A scheduling ordeal would be created.

                The reasonable interpretation of the provisions in dispute in the instant case, and the interpretation that avoids a harsh result is that interpretation favored by the Employer.  Those provisions require the Employer to: (1) schedule employees’ shifts with five consecutive days on and two consecutive days off, (2) post the schedule in advance, and (3) give senior qualified employees first consideration to those scheduled shifts.  The Employers’ interpretation of Article 12, Section I to mean the provision only applies to shift vacancies created when an employee terminates is reasonable within the context of the wording of that whole provision.

                Under the provisions in question, the Employer sets the schedules as Article 3, Section K clearly contemplates.  Employees receive consideration according to seniority and qualifications in selecting the shift as scheduled by the Employer.  There is no evidence to show that the Employer has manipulated the schedules to deprive any employee of desired days off.

                In summary, the collective bargaining agreement does not require that the Employer schedule the Grievant’s shifts so that she has weekends off.  It permits the Employer to set the shifts and the Grievant to choose one she is qualified to perform. Accordingly, I will enter an award to reflect my decision.

AWARD

                The grievance is denied.

                Dated this ____day of January 2000.

 

 

 

                                                                                                                ______________________________

                                                                                                                Jack H. Calhoun

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