Title: Lewis & Clark County, Cooney Convalescent
Home and Montana Public Employees Assoc
IN THE MATTER OF THE GRIEVANCE
MONTANA PUBLIC EMPLOYEES
OPINION AND AWARD
LEWIS & CLARK COUNTY,
COONEY CONVALESCENT HOME,
JACK H. CALHOUN
Case Submitted on Stipulated Facts
FOR THE UNION:
FOR THE EMPLOYER:
CARTER N. PICOTTE
SHEILA D. COZZIE
MONTANA PUBLIC EMPLOYEES ASSN. LEWIS & CLARK COUNTY.
P. O. BOX 5600
P O BOX 1724
HELENA, MT 59604
HELENA, MT 59624
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.
The issue presented is whether the collective bargaining agreement
requires the Employer to schedule the Grievant’s work shifts so that she has
RELEVANT CONTRACT PROVISIONS
The following provisions of the parties’ collective bargaining
agreement are relevant to the issue in dispute:
ARTICLE 3 — EMPLOYEES’ HOURS
. . .
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
. . .
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
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:
hire, promote, transfer, assign, and retain employees;
relieve employees from duties because of lack of work or funds or under
conditions where continuation of such work would be inefficient or non
maintain the efficiency of government operations;
determine the methods, means, job classifications, and personnel by which
government operations are to be conducted;
take whatever actions may be necessary to carry out the missions of the
agency in situations of emergency;
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
. . .
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.
. . .
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
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
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
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
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
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
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.
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
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
The grievance is denied.
Dated this ____day of January 2000.
Jack H. Calhoun