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Title: Employer and Union
Date: December 2, 2000
Arbitrator: Philip Kienast
Citation: 2000 NAC 150

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on September 11, 2000 and the record closed upon receipt by the Arbitrator of post hearing briefs on November 6, 2000.  Absent a stipulation by the parties, the Arbitrator has framed the issue for decision as:

Did the Employer violate Section 2.7 of the Agreement when it failed to pay the grievants time and one-half for the tours they were directed to work on their scheduled day(s) off and without 24 hours notice?  If yes, what is the appropriate remedy?

Pertinent Agreement Provisions

            DEFINITIONS

Schedule      The working hours and days of the week which an employee has been assigned.

Tour            An employee’s scheduled or assigned hours on a particular calendar day.

 

 

HOURS AND DAYS OF WORK

 

WORK SCHEDULE CHANGES

 

Section 2.7   The Company will inform an employee of a schedule change no later than 24 hours prior to the start of the employee’s tour or normally scheduled tour on the calendar day before the schedule change.  The employee will be paid one and one-half (1-1/2) times his or her basic wage rate for all hours actually worked outside of his or her normal tour when the Company fails to give the employee appropriate notice of a schedule change, unless the employee requests such change.

 

 

ARBITRATION

 

Section 16.16   The decision of the arbitrator shall be final and binding on both parties, and the Company and the Union agree to abide by such decision.

 

Section 16.17   The arbitrator shall have no authority to change, add to or subtract from the terms of this Agreement.

 

. . . .

 

Section 16.19   Each party shall pay for the expenses of its own witnesses.  The expense of the arbitrator or neutral third party and the general expenses of arbitration shall be borne equally by the Company and the Union.

Background

            The grievants in this matter, Todd Matta and David Cherrington, are similarly situated.  It is undisputed that both were asked to work on their day off with less than 24 hours notice.  Both worked less than 40 hours in the calendar week pay period because they had taken time off earlier in the week.

            The Union contends the grievants should have been paid at time and one-half (1½) for all hours worked on their scheduled day off because Section 2.7 requires premium pay when an employee’s schedule is changed with less than 24 hours notice.

            The Employer contends that overtime assignments are not covered by Section 2.7 but 4.3 which states that overtime is only for work that is in excess of the employee’s scheduled tour.  Because the extra hours worked on the grievants’ days off were not in excess of a scheduled tour or 40 hours for the work week no premium pay was due them.  The Employer argues Section 2.7 was intended to cover only changes to the posted schedule and not unscheduled overtime assignments as occurred in this case.  It asserts unscheduled overtime cannot be construed as a change in the work schedule.

Analysis and Conclusions

            The key to a decision in this matter is the interpretation of Section 2.7 of the Agreement.  The Employer construes it narrowly as applying only to a change in an employee’s assigned hours or “tour” without 24 hours notice.  The Union construes it more broadly as also applying to a change in the days of the week an employee is assigned or scheduled to work.

            Even if the Arbitrator uses the Employer’s more restrictive interpretation, the Employer is still obligated to provide 24 hours notice when it creates an unscheduled tour and assigns it to an employee.  If an employee is scheduled to be off on a particular calendar day then logically he has no scheduled or assigned hours on that day.  When the Employer exercises its discretion to change this fact and assign a tour to an employee, it is obligated by Section 2.7 to give the employee either 24 hours notice of this new tour assignment or pay the employee a premium of 1½ for hours worked on that tour.

            The term “tour” is defined in the Agreement as:  “An employee’s scheduled or assigned hours on a particular day.”  The grievants had no scheduled tours on the day(s) in question.  The Employer assigned each an unscheduled tour on the day(s) in question.  Section 2.7 is clear in requiring pay for hours worked on those tours absent (1) “24 hours notice prior to the start of the employee’s tour OR (2) normally scheduled tour. . .”  The parties used the disjunctive term “or” to indicate payment is due regardless which of the two conditions is present.

            The Employer correctly noted the latter condition did not occur in the grievants’ cases.  Neither grievant had their “normally scheduled tour” changed.  However, the Arbitrator finds both grievants were assigned tours which also require the payment of the 1½ premium because they did not receive 24 hours notice of these newly assigned tours.  Since the grievants were previously not assigned any tour on the day(s) in question, Section 2.7 requires that they be paid time and one-half for all hours worked on the tours in question.

            To reiterate, Section 2.7 is clear and unambiguous in requiring 24 hours notice prior to the “start of an employee’s tour.”  The grievants had no scheduled tour(s) on the day(s) in question and therefore all hours they worked should have been paid at the premium rate of time and one half.

            Inasmuch as the plain and clear language of Section 2.7 is dispositive of the issue for decision, the Arbitrator will not address the evidence and arguments presented as to prior practice and negotiating history.  In conclusion, the Arbitrator finds the Employer did violate the Agreement and will order each grievant be made whole.

AWARD

1.      The Employer did violate the Agreement when it failed to pay the grievants time and one-half for the tours they were required to work on their scheduled day off without 24 hours notice.

2.      As a remedy, the Employer will pay each grievant additional pay equal to one-half the applicable rate for each hour worked on the days in question.

3.      The Arbitrator retains jurisdiction for the sole and exclusive purpose of adjudicating any disputes as to the remedy ordered.

 

 

_____________________________________
Philip Kienast
Bothell, Washington
December 2, 2000

 

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