of Eugene, American Federation of State, County, and Municipal Employees, Local
IN ARBITRATION PROCEEDINGS
PURSUANT TO AGREEMENT BETWEEN THE PARTIES
Arbitration arises pursuant to Agreement between AMERICAN FEDERATION OF STATE,
COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 1724 (“Union”), and CITY OF EUGENE
(“City” or “Employer”), under which LUELLA E. NELSON was selected to
serve as Arbitrator and under which her Award shall be final and binding upon
was held on September 22, 1999, in Eugene, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce relevant exhibits, and argue the issues in dispute.
Both parties filed post-hearing briefs on or about October 25, 1999.
The parties waived the 30-day time limit for preparation of this
Opinion and Award.
behalf of the Union:
Mr. Lou Sinniger, AFSCME Local 1724, 1174 Gateway Loop, Springfield, OR
behalf of the City:
Sharon Rudnick, Esquire, Harrang Long Gary Rudnick P.C., 400 South Park
Building, 101 E Broadway, Eugene, OR
parties were unable to agree on a statement of the issue or issues to be
decided. The Union would
formulate the issue as follows:
Did the City violate the collective bargaining agreement when it
discontinued paid lunches at the airport?
City would formulate the issues as follows:
Was the grievance timely?
Did the City violate Article 17.3(e) when it exercised its right to
change the work schedules of airport day shift workers, relieving them of the
requirement that they work through lunch, and consequently no longer paying
them for their 30-minute lunch period?
parties stipulated that the Arbitrator would formulate the issue or issues to
be decided. Having reviewed the
record, the Agreement, and the parties' statements of the issues, the
Arbitrator formulates the issues as follows:
Was the grievance timely?
2. If the grievance was timely, shall it be sustained or denied; and, if sustained, what shall be the remedy?
RELEVANT SECTIONS OF AGREEMENTS
AGREEMENT EFFECTIVE July 1, 1994 - June 30, 1998
HOURS — OVERTIME
Full-time work days are defined as the eight (8) to ten (10) hour
period beginning at the employee’s regularly scheduled start time.
Full-time employees work forty (40) hours per week.
An eight (8) hour work schedule shall include two (2) fifteen (15)
minute break periods, and a ten (10) hour work schedule shall include two (2)
twenty (20) minute break periods, one before the meal period and one after;
and a meal period at or near the mid-point of the work schedule.
Compensation for the meal period shall be in accordance with applicable
law and this Agreement.
Employees who have a work schedule starting between the hours of 2:00
p.m. and 6:00 a.m. will work a continuous eight (8) hour work schedule (ten
(10) hours if on a 4/10 work schedule) including a one-half (1/2) hour paid
meal period. ....
AGREEMENT EFFECTIVE July 1, 1998 - June 30, 2001
The City shall retain the exclusive right to exercise the customary
functions of management, including but not limited to, directing the
activities of the department, determining the levels of service and methods of
operation including ... the right ... to determine work schedules and assign
work; and, any other such rights not specifically referred to in this
Agreement. The City shall not
exercise its rights set forth above for the purpose of avoiding the terms of
this Agreement. ...
EXISTING BENEFITS/WORK RULES
Nothing in this Agreement is intended to nullify existing wage or other
economic benefits to employees under current policies, practices, and work
rules, unless specifically included in this contract.
To the extent that any proposed changes in work rules or working
conditions consist of or affect mandatory subjects of bargaining, the City
agrees to collectively bargain the mandatorily negotiable aspects of the
Nothing in this Agreement is intended to restrict the right of the City
to adopt, change, or modify reasonable work rules or procedures necessary for
the safe, orderly, and efficient operation of City services....
HOURS — OVERTIME
[same as in 1994-98 Agreement]
The Union recognizes the City’s right to determine work schedules
based on its assessment of operational requirements.
The City recognizes its obligation to avoid, where practicable, work
schedule changes which result in expressed undue hardship to an affected
Work schedule changes of more than two (2) hours will normally be made
only after five (5) days notice is given to the employees and the Union.
Such changes will be subject to consultation with the Union and
employees upon request. Work
schedule changes of two (2) or less hours will normally be made only after
thirty-six (36) hours notice is given to the employees.
e. Employees, except those on a ten (10) hour shift, shall be entitled to a fifteen (15) minute break period near the mid-point of every four (4) hours of work. Employees shall be entitled to a meal period of at least thirty (30) minutes if more than five (5) hours of work is scheduled. ...
Employees who work a ten (10) hour work schedule will be entitled to a
twenty (20) minute break period near the mid-point of every five (5) hours of
work and a meal period at or near the mid-point of the work schedule.
As of October 1, 1998, employees who have a regular work schedule where
the majority of the hours (one-half (1/2) or more of the scheduled hours)
worked are between 5:00 p.m. and 6:00 a.m. will receive a shift differential
of sixty-five cents (65¢) per hour for all hours worked in the shift. ....
Grievances will be processed in the following manner and within the
stated time limits. The event
must have occurred within the past fourteen (14) days or the employee should
reasonably have had knowledge of the event for no longer than fourteen (14)
days to be eligible for processing.
The employee will first attempt to informally resolve the issue with
his/her immediate supervisor within fourteen (14) days from the occurrence
of reasonable knowledge thereof. ...
If this attempt is not successful, the employee may submit within this
time period a written notice to the supervisor and a copy to the Union, ....
Until August 1, 1990, employees at the airport worked a 10.5-hour shift, with a half hour unpaid lunch period. Beginning August 1, 1990, they worked a 10-hour shift with a half-hour paid lunch. Airport Division Manager Mike Boggs testified he found shortly after his arrival that employees lacked operational training and experience. He decided the lack of training could be partly remedied by scheduling in redundancy while ramping up the training program. He required all Airport workers to be available during lunch to respond to emergencies and operational needs. Each employee was required to carry a radio, stay on site, and respond immediately at all times other than breaks. In 1992, and again in 1995, Boggs reviewed training and experience, but concluded redundancy remained necessary. Employees had a paid lunch period during which they were expected to respond to work calls, regardless of whether they worked 8- or 10-hour shifts.
1992, five airport workers were certified in operations.
By the end of 1994, twelve had been certified, and that number grew to
fourteen in 1998. Boggs testified
the new shift differential language caused him to look again at the day shift
staffing in 1998. He concluded he
had enough trained airport workers to cover operational needs and emergencies
by scheduling two employees to cover lunches.
By a memo dated September 25, 1998, Facilities and Operations Manager Robert
Noble notified day shift workers of a change in their schedule, effective
October 1. The new schedule
called for staggered half hour unpaid lunch periods Monday through Friday, and
the total daily work schedule was therefore extended by half an hour on those
days, to 8.5 hours. Weekend and
night shifts remained 8-hour shifts with paid lunch periods.
The memos to day shift workers read, in relevant part, as follows:
As you are probably already aware, part of the changes to the new AFSCME
contract included the addition of Item 17.8 regarding shift differential and
negotiations regarding the requirements of paid lunches.
The agreement was made that lunch periods would no longer be paid by
the City unless there was an operational need.
At the airport our staffing needs require that we are able to respond
to emergencies with an appropriate amount of personnel.
To accommodate this need and to meet the new non-paid lunch provision
your new work schedule is as follows:
shifts are based on all staff working their regular shifts.
In the event you are scheduled for an unpaid lunch and staffing needs
require you to assume operations response responsibilities, your lunch period
will be paid and your shift will be shortened by thirty minutes. ....
Steward Wayne Sylliaasen discussed the pending change with Noble between
September 25 and October 1, but was unable to dissuade Noble from making this
change. This grievance followed on October 13, alleging as follows:
The Airport had a long standing practice to pay all day shift
operations workers a paid lunch. As
of October 1, 1998 the Airport has required employees to have a non-paid
lunch. The day shift Airport
workers have lost a substantial benefit.
Before October 1, 1998 the employee’s [sic] were paid for the half
hour lunch but were required to be at the ready, stay on site, and could be
required to work during the lunch period without extra pay.
After October 1, 1998 the employees are no longer paid for their half
hour lunch period nor are they required to be at the ready, to stay on site,
nor to work without extra pay. Only
2 employees are required to be at the ready during the lunch periods.
The change in practice violates Article 13, Existing Benefits/Work
Rules, Article 4, Management Rights, and other related sections of the current
collective bargaining agreement.
For remedy we ask that the City make all employees whole in every way
including pay for the half hour lunch and to rescind the change in practice.
October 21, Noble clarified his earlier notice by informing employees that the
shortened shift referred to in the last paragraph of the notice applied only
if employees received adequate notice of a shift change; otherwise, their
shift would remain unchanged and they would be paid overtime for all hours
worked beyond their scheduled shift.
to former Union President Judith Hines, the airport’s remote location
precludes employees from going off premises to get lunch.
Employees testified that, prior to the change at issue, they
effectively worked 7.5 hours but were paid for 8 hours.
The new schedule requires them to spend an additional 30 minutes at the
airport each work day. This
results, inter alia, in higher child care costs.
During their lunch hour, employees no longer carry radios or answer the
phone in the lunch area. They
testified the prior arrangement was more efficient because they could finish a
project and take lunch whenever it was convenient; now they must take lunch at
the assigned time. Boggs
testified this schedule change permits the City to schedule 27.5 additional
hours of productive time weekly.
language that is now Article 17.3(e) was added to the Agreement in 1985, the
same year the Fair Labor Standards Act (FLSA) became applicable to local
governments. In 1998, the parties
replaced the paid lunch provision for night shift employees, provided in
former Section 17.3(d), with the current night shift differential in Section
17.8. The issue of paid lunch
periods for day shift workers was not raised in those negotiations.
According to Hines, the City’s negotiator commented there would be
times when paid lunches would still happen.
Hines assumed this probably referred to airport employees because of
the policy of paid lunches. She
testified she realized it would be up to the City to decide whether that was a
benefit to the City. However, she
believed there would be no change in policy for day shift employees because
those employees had not been discussed, and because the parties had been so
specific about the time periods under discussion.
POSITION OF THE CITY
grievance was untimely. Employees received notice of the change on September 25 to
comply with the contractual requirement for notice of shift changes.
Sylliaasen discussed objections to the impending change with Noble
before the effective date. The
Union initiated Step 1 in a timely way through the informal meeting between
Sylliaasen and Noble. However, it
failed to perfect its Step 1 grievance by not filing a written grievance
within 14 days after the September 25 notice of the shift change.
Union failed to prove the City violated the Agreement.
The Union misidentifies the City’s long-standing practice regarding
payment for lunch periods. As
long as employees were required to stay on-site and be available to respond
during their lunch periods, the City paid for their lunch breaks whether they
were actually interrupted or not. This
was not because the City instituted a “paid lunch program;” it was because
the City was required to pay for that time by law, and consequently by Article
17.3. Under the FLSA,
employees’ lunch periods were primarily for the City’s benefit, and
therefore were compensable. The
City continues to have some employees work a straight eight-hour shift, during
which they are required to be on-site and available by radio during their
lunch break. In these
circumstances, it continues to pay employees for the meal periods.
It also pays for meal periods if they are interrupted with work.
However, since October 1, employees have been completely relieved of
duty during lunch, and therefore are not paid for that time.
This is consistent with the City’s practice of paying employees for
meal periods when they are required to work during that time, and not paying
them for their meal period when they are not required to work.
13.1 cannot be read so narrowly as to require the City to continue to pay for
lunch periods simply because it did so in the past.
This payment was not simply a benefit or part of compensation regardless
of whether employees worked during lunch.
The City paid employees for their lunch periods because they were
required to work during the lunch period, thereby making that time
compensable. This is the past
practice protected from unilateral change by Article 13.
The schedule change implemented on October 1 was consistent with this
practice. Employees suffered no
change in any existing benefit. They
continue to be paid for meal periods when they are required to work during
them, and they are not paid for meal periods when they are not required to
work during them. This was
nothing more than a schedule change.
Article 17.3(e), the City was required to pay compensation for meal periods
“in accordance with applicable law and this Agreement.”
The bargaining history suggests the Union’s concern in negotiating
this language was to compensate employees held over past the scheduled end of
their shift, not to tie Article 13 to compensation for meal periods.
Airport employees have consistently been paid or not paid for meal
periods in accordance with applicable law.
Article 13 is the only provision of the Agreement that could possibly
apply. These employees continue
to enjoy the same benefit regarding paid meal periods as they did before
October 1: they are paid for meal periods when they are required to work
POSITION OF THE UNION
City first raised timeliness at Step 1. It
did not raise it again until after arbitration was requested.
The Union filed the grievance twelve days after the effective date of
the change. The occurrence was
not the date of the memo to employees. No
harm had come to employees on September 25.
The occurrence was when employees were harmed, on October 1.
Employees still had paid lunches from September 25-30.
the Union had filed a grievance on September 26, the City would have rejected
it because the event had not yet occurred.
If the memo had announced a disciplinary suspension effective October
1, any reasonable labor/management representative would have concluded the
occurrence was October 1. The
time between the notice and the occurrence is of no consequence to affected
employees. The logic is the same
here. No harm or change occurred
until October 1. The Oregon
Employment Relations Board (ERB) applies the same reasoning in determining
timeliness of an unfair labor practice.
lunches for airport workers are an established practice.
Employees had every reason to believe the practice would continue
unless changed through negotiations. Newly-hired
airport workers were told of the practice, and it was a benefit they
considered in deciding whether to accept employment.
It had become an integral part of the Agreement.
The paid lunch period, in effect, increased employees’ hourly pay. The parties recognized this in negotiating a shift
differential in lieu of paid lunches for swing and graveyard shift workers.
It also was a benefit in that it took employees away from their private
lives a half hour less each day. The
change permits the City to get more hours of work done in a week.
13 recognizes that practices exist, and the expectation is that they will
continue. It allows mandatory
subjects to be changed only through negotiations.
Instead, the City made a unilateral change.
Wages and hours are mandatory subjects of bargaining.
The City therefore was required to propose a change to the Union before
implementation, regardless of whether the parties were in negotiations.
is immaterial whether the airport no longer needs to have all employees on
call during lunch. Airport
workers believe they had an agreement established by past practice which was
unilaterally dissolved by the City. The
City had the opportunity to raise this issue in 1998 negotiations.
It successfully brought paid lunches for night shift employees to the
table, resulting in a new shift differential clause.
The City now seeks to gain what it failed to bring forth at the
bargaining table. It exercised
its rights for the purpose of avoiding the terms of the Agreement.
It was aware of the practice when it bargained the Agreement.
It should not be allowed to change the practice unilaterally after
effective date of the change is the same as the effective date of the new
shift differential under Section 17.8. Contrary
to the memo to employees, paid lunches at night had nothing to do with paid
lunches during the day. The City
had enough trained workers to move to unpaid lunches by 1994, but did not
bring that information forward for negotiations in 1998.
The notice to employees is untruthful in suggesting this change is due
to the “new non-paid lunch provisions.”
a remedy, the Arbitrator should order the City to compensate employees for
their half hour paid lunches at the overtime rate, and to return to the past
practice of a paid lunch period.
is an affirmative defense, as to which the burden of proof rests with the
party asserting the grievance is untimely.
Contractual time limits are as enforceable as any other contractual
provision. Parties include them
in recognition that memories fade, witnesses move away, and evidentiary
materials become unavailable. Moreover, both parties have an administrative interest in
knowing when a particular dispute may be considered to be either resolved or
moot. However, the parties
include grievance and arbitration procedures as a means of resolving
disputes. Doubts regarding procedural
defenses, including timeliness, therefore are to be resolved against
City raised timeliness in its first step response.
It thus unequivocally notified the Union of this objection at the
earliest opportunity. Its
participation in later steps of the grievance process was not a waiver of the
timeliness objection; on the contrary, it was consistent with the aim of
resolving disputes when possible, and fully preparing the matter for
arbitration if an earlier resolution was not possible.
Article 35, the first step of the grievance process is begun when the employee
approaches the supervisor informally; however, to perfect the first step, the
employee files a written grievance, which triggers a written response.
Both the informal discussion and the written grievance must occur
within the contractual time limit. Thus,
Article 35 conditions processing of a grievance on the event having
“occurred within the past fourteen (14) days or the employee should
reasonably have had knowledge of the event for no longer than fourteen (14)
days ....” The pivotal issue is, therefore, when “the event”
occurred; i.e., whether “the event” was the notice of the schedule change
or its implementation.
17.3(e) required the City to give notice of schedule changes before implementing
them. The fact that this change was
announced five days before it was implemented therefore did not toll the running
of the time limits. Before the end
of September, employees knew, or should have known, that they needed to arrange
their personal schedules to accommodate the new schedule.
The change thus began having its impact on employees at the time it was
announced. Consistent with this
impact, Sylliaasen immediately began discussions with Noble, prior to October 1. No evidence exists that Noble ever suggested these discussions
were premature because the change had not yet been implemented.
On this record, it is therefore concluded that “the event,” for
purposes of Article 35, was the notification to employees of the schedule
change. No written grievance was
filed within 14 days thereafter. Accordingly,
under the clear language of Article 35, the grievance is not eligible for
processing because it was untimely. The grievance therefore is dismissed.
The grievance was not timely. It
therefore is dismissed.
LUELLA E. NELSON - Arbitrator[COMMENT1]
Except as otherwise indicated, all dates refer to 1998.
COMMENT: Make sure the first address on page 1 is the right address for these parties --Oregon address for Pacific Northwest clients, California address for Californians.
Do Date Text on the date case is actually completed, to replace the Date Code.