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Title: Oregon Health and Science University and American Federation of State, County and Municipal Employees, Local 328 
Date: December 11, 2001 
Arbitrator: Luella E. Nelson 
Citation: 2001 NAC 129

 

In the matter of arbitration between:


American Federation of State, County and Municipal Employees, Local 328
,

                           and

Oregon Health and Science University,

 

 

 

RE:  Grievance of Eva Curry (“Grievant”)

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

This Arbitration arises pursuant to Agreement between AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, Local 328 (“Union”), and OREGON HEALTH SCIENCE UNIVERSITY (“Employer”), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.
   
         The parties waived oral hearing and agreed to submit evidence by stipulated facts and exhibits.  The stipulated record and the parties’ briefs were received on or about October 20, 2001.

APPEARANCES:

On behalf of the Union:

Valerie Andreas, Staff Representative, AFSCME Local 328, 123 NE Third Avenue, Suite 505, Portland, OR   97232

On behalf of the Employer:

Nelson D. Atkin II, Esquire, Barran Liebman LLP, ODS Tower, 601 SW Second Avenue, Suite 2300, Portland, OR 97204-3159

ISSUE

Did OHSU violate Article 37 with respect to the scheduling of Food & Nutrition Department Cashiers during pay period #22 in October 1999?  If the answer is yes, what is the appropriate remedy?

RELEVANT SECTIONS OF AGREEMENT

ARTICLE 2 – MANAGEMENT RIGHTS

The parties agree that the Employer has the right to operate and manage the institution including, but not limited to, the right to maintain order and efficiency; to direct employees and to determine job assign­ments and working schedules; to determine the methods, means and personnel to be used; to implement improved operational methods and procedures; to determine staffing requirements; to determine the kind and location of facilities; to determine whether the whole or any part of the operation shall continue to operate; to select and hire employees; to promote and transfer employees on a just and equitable basis; to discipline, demote or discharge employees for just cause; to lay off employees; to recall employees; to require reasonable overtime work of employees; and to promulgate rules, regulations and personnel policies, provided that such rights shall not be exercised so as to violate any of the specific provisions of this Agreement.

ARTICLE 7 – DEFINITIONS

...

7.14 Employee – means a public employee who is included in the bargaining unit as defined in Article 1, Recognition, herein.

...

7.35 Temporary Employees – are those full or part-time employees employed by the Employer for a spe­cific period of time to fulfill the specific needs of the Employer, by the authority of and with the conditions of employment as set forth in the OHSU Administrative Rules and Policy.  Temporary em­ploy­ees are not covered by the terms and conditions of this Labor Agreement.

...

ARTICLE 26 – WORK WEEK AND WORK SCHEDULING

...

26.3         Work Schedules.

a. Standard Work Schedule.  A work schedule with the same starting an stopping time on five (5) consecutive eight (8) hour days, within a work week.

 

b. Alternate Work Schedule.  A work schedule which has other than five (5) consecu­tive eight (8) hour days.  Examples include but not limited to: 1) part-time, (2) a schedule with different starting and stopping times, 3) other work schedules which might include: four [4] ten [10] hour days or four [4] nine [9] hour days and one [1] four [4] hour day, etc., 5) flex-time, etc.  The Employer agrees to notify the Union of any newly proposed work schedules greater than 10 hours in shift length prior to im­plementation pursuant to ORS 243.698.  The Union shall have fourteen (14) days from such date of notification to request to negotiate such proposed alternate work schedule.

...

...

26.11 In the event non-scheduled work becomes available in a department, employee(s) who have been tem­porarily laid off within the current and previous pay period shall be first offered that work in seniority order if they are qualified and if they have advised their supervisor in advance that they wish to avail themselves of available non-scheduled work.

If working the non-scheduled work would cause the employee to incur overtime, the employee shall be required to change any vacation or comp time used during such temporary layoff to leave without pay (LWOP), TACS code “REQ” to avoid payment of overtime as the result of working non-scheduled work.

 

Departments are encouraged to develop a process to assign remaining non-scheduled work utilizing the LMC Consensus Process.  This process should consider the availability and qualifications of per­son­nel, efficiency of operation, employee needs and fiscal impact upon the Employer .

ARTICLE 37 – OVERTIME

37.1 This Article is intended only to provide a basis for the calculation of overtime and none of its pro­vi­sion shall be construed as a guarantee of any minimum or maximum hours of work or weeks of work to any employee or to any group of employees.

 

37.2 Employees shall be compensated at the rate of one and one-half (1-1/2) times the regular rate of pay for overtime worked under the following conditions, but in no event shall such compensation be received twice for the same hours.

 

a. Employees on a Standard Work Schedule shall receive overtime for all assigned work in excess of eight (8) hours on any scheduled eight (8) hour work day and all assigned work in excess of forty (40) hours in any one (1) work week.

...

37.4 Scheduled overtime is defined as overtime work requirements that the Employer is aware of at least five (5) days in advance.  Unscheduled overtime is defined as overtime work re­quire­ments that the Employer becomes aware of less than five (5) days in advance.

...

37.6 Each work unit, with consensus of the employees, shall have the opportunity to develop cre­ative methods of over­time scheduling.  Otherwise, overtime work shall be offered to those employees eligible and qualified to per­form the work, and shall be given to the most senior employees who bid.  Should no employee bid to work over­time, the overtime shall be as­signed on a rotating basis beginning with the least senior employee.  Health and safety of employees and clients shall be considered in granting overtime; therefore, employees shall be limited to sixteen (16) consecutive hours (to include regular shift plus overtime) in a twenty-four (24) hour per­iod.  In all cases of an emergency, the Employer may assign over­time to any employee as operating needs require.

....

   RELEVANT SECTIONS OF POLICY MANUAL

TEMPORARY APPOINTMENTS No. 03-10-030

1. When Appropriate

 

A temporary appointment may be made when:

 

A. An emergency, nonrecurring, or short-term workload need exists; and

 

B. An existing budgeted part-time or full-time regular, seasonal, or limited duration position is not appropriate.

2. Duration

            A. A temporary employee, one other than filling in behind an employee on approved leave, shall not work beyond the equivalent of six months (1040 hours) in a 12-month period unless an extension has been granted.  The temporary appointment may be extended for one six month period.

 

B. A temporary appointment to fill in behind an employee on approved leave shall not exceed the period of the approved leave.

....

FACTS

The Employer is a public employer within the meaning of ORS 243.650(18).  The Union is the exclusive repre­sent­ative of a bargaining unit of over 3,500 health care workers employed by the Employer.  In addition to employees covered by the Agreement, the Employer usually employs between 65 and 100 temporary employees who, pursuant to Article 7.35, are not covered by the Agreement. Grievant is a member of the Union’s bargaining unit.  At all material times, she has been employed by the Employer as a Cashier 1 in the Food and Nutrition Department (“the Department”).  Her normal work schedule consists of five consecutive eight-hour work shifts scheduled between 5:15 a.m. and 1:15 p.m. ,Monday through Friday.

The process for posting available shifts in the Department is the responsibility of managers who develop the work schedule.  If the shift can be filled with a part-time employee working straight time, it is so offered by seniority.  If no part-time employee is eligible, qualified and available, the shift is filled by offering the shift to full-time employees in order of seniority, as provided by the Agreement. 

On Tuesday, October 19, 1999,[1] an unexpected ill call from Krista Pate for the following day (Wednesday, October 20) created an available eight-hour day shift for a cashier in the Department’s Marquam Plaza Café.  The immediate supervisor, Paul Southerton, reviewed the Food Service Department work schedule and identified those employees who were qualified to work that position, and who were not already scheduled for the day shift on October 20.  Grievant and a number of other cashiers were already scheduled to work October 20 and could not be offered the vacant shift.

Southerton offered the October 20 shift to the most senior available FTE employee, Sibel Topuz, who declined the shift.  No other qualified, non-temporary employee was available to work that shift.  Southerton offered the shift to a temporary employee, Gulin Selvi, who agreed to work it.  Selvi was then work­ing as a temporary employee as a Cashier 1.  Her posted schedule routinely consisted of eight-hour work shifts on Monday, Thursday, Friday, Saturday and Sunday.  After working on Wednesday, October 20, Selvi worked the remainder of her work schedule.  Her shift on Sunday, October 24, was paid at overtime rates.

On November 3, 1999, Grievant and her steward filed a first-step grievance reading as follows:
A temporary employee hired on September 18, 1999, was scheduled to work a sixth day in pay period #22 week #2 as a cashier in the UHS 3rd Floor Café.  The most senior cashier who works Bid position #23 cashier in UHS 3rd Floor Café was not called and offered the overtime shift on Sunday, October 24, 1999.  I feel that I am do [sic] compensation.

The Union’s position at the first step grievance meeting was that allowing Selvi to work the extra shift in the middle of the week incurred overtime on her regular Sunday shift.  Therefore, the October 24 shift should have been posted as an available shift for bid to employees.  The Employer’s position was that the overtime was the result of Selvi’s agreeing to work on October 20 and that October 20 therefore was the extra work or overtime day because she had already been scheduled for 40 hours that week.  The parties could not reach consensus on a solution at that meeting.  The grievance was moved to the 3rd Step in the grievance process by agreement between the parties.  A Grievance Adjustment Board hearing took place on April 26, 2000.  After hearing the case, the Grievance Adjustment Board was unable to reach consensus on a decision.

An annotated work schedule submitted by the Employer lists 32 workers, of whom four are identified as temporary employees; the status of another nine is not indicated on the schedule; and one worker listed on the original Department schedule, “Pinkie Easley,” is not listed on the annotated schedule.  Only two, Sherry Barth and Larry Mullen, are senior to Grievant.   Mullen was assigned to modified duty during this period.  Barth and Grievant were both working on October 20; neither was scheduled to work on October 24, but Barth took vacation on Friday, October 22, and the annotated schedule indicates she was “off” on October 24.  Of the workers on the Department schedule, five worked and/or received vacation or sick pay for fewer than five shifts that week, and thus may be considered part-time workers.  Of those five, only Hunter Hawkins, a temporary employee, was avail­able on October 20; however, the annotated schedule indicates he was not qual­ified for that shift.  Hawkins and Antoinette Davis were the only part-time workers ­who were available on October 24.  Davis was not a temporary employee; she worked four days that week (including one five-hour shift that was not pre-scheduled) and three days the preceding week.

POSITION OF THE UNION

The Employer violated Article 37 of the Agreement.  That provision clearly outlines the procedure for offering overtime opportunities to employees.  Grievant has worked overtime shifts in the past and rou­tinely informed management of her desire to be notified when overtime shifts became available while off duty.  The Union represents all classified employees.  Temporary employees are not classified employees and are excluded from any contractual rights.  Both Grievant and Selvi were assigned to a standard work schedule consisting of five consecutive eight-hour work shifts.  By offering Selvi the extra shift, the Employer was or should have been aware this would put her into overtime at the end of the week.

Temporary employees are not guaranteed hours or positions and do not accrue seniority.  Although management has the right under Article 2 to determine job assignments and work schedules, such rights are not to be “exercised so as to violate any of the specific provisions of the Agreement.”

The Employer had opportunities to avoid overtime altogether.  It has temporary employees who work as little as sixteen hours a week.   By removing Selvi from the Sunday shift, it could have posted the available Sunday shift for bid as per the contract.  If regular part-time or relief employees declined to bid, another temporary employee who would not incur overtime could be assigned or offered the position.  In similar circumstances, an arbitrator found in Flexfab, Inc. and American Federation of Grain Millers, International Union, Local 397, 103 LA 219, that the employer improperly assigned non-unit temporary employees to a voluntary weekend overtime assignment.  The language of the contract in that case and this Agreement are, if not the same, similar in that should no employee bid to work overtime, the overtime shall be assigned beginning with the least senior employee.  Elkouri describes the general thinking of arbitrators to the effect that management’s decision must be reasonable, must not subvert the Agreement, and must not seriously weaken the unit or important parts of it.

The prevailing practice within this bargaining unit is for management to review the schedule and identify those employees who are qualified to work that position, who work less than the standard 40-hour work schedule, and who are not already scheduled for the available shift.  The vacant shift is offered to the most senior employee meeting those criteria.  If that employee declines, it is offered to less senior employees.  If they decline, the shift can be offered to temporary employees.  If no straight time worker is eligible or qual­i­fied, overtime is then offered to available full-time employees in order of seniority.

The Arbitrator has the authority to grant the remedy.  Lost overtime pay is an appropriate remedy where the employee’s contractual right to overtime work has been violated.  The Arbitrator should sustain the grievance and grant the remedy requested.

POSITION OF THE EMPLOYER

The Employer properly filled the extra work shift.  The extra work shift was not on Sunday, October 24, but rather was on Wednesday, October 20.  The Employer did not violate Grievant’s rights or those of other unit employees in assigning that work.  Even assuming arguendo that the Sunday shift should have been posted for bid, Grievant by reason of her seniority would not necessarily have worked the shift.  Therefore, it would be inappropriate in any event to award her backpay.

Whether the extra work was “overtime” as defined in Article 37.4 or “non-scheduled work” as defined in Article 26.11, Southerton followed the Agreement.  He offered the work to the senior qual­ified available FTE employee, who declined the extra work.  There were no other FTE employees available.  The extra work was awarded to a temporary employee who was willing to work it.

The shift Selvi worked on October 24 was not an “overtime” shift as defined in Article 37.4 of the Agreement.  The language of Article 37.6 should be interpreted to do the least violence to the judgment of a reasonable man.  Article 37.6 describes how to cover an overtime work requirement, as defined in Article 37.4.  There was no overtime work requirement on October 24; there was only the previously scheduled and posted fifth shift in Selvi’s work week.  Article 37.6 does not create an obligation to remove an employee from a posted shift schedule.  Rather, it is a process for awarding and/or assigning required extra work.  This shift would be paid as overtime to Selvi only if she worked her scheduled shifts on October 21, 22, and 23.  If she had been absent from any of those shifts, October 24 would have been paid as regular pay.

Although temporary employees are excluded from the coverage of the Agreement, that exclusion does not prohibit temporary employees from working extra shifts which may result in overtime pay in any par­tic­ular work week.  Otherwise, the Employer would have to modify work schedules of any of the 65-100 temporary employees any time they worked an extra shift which might result in overtime, and post one of their previously scheduled shifts for bid.  The Agreement does not contemplate such an administrative burden, and that burden should not be imposed without clear and unambiguous agreed-upon language.

The Agreement does not require the Employer to amend a posted work schedule.  So long as Article 26.11 and Article 37.6 are fully complied with when covering extra work and/or overtime requirements, as they were here, there is no contract violation and no obligation to bump a temporary employee out of a posted shift schedule if they agree to work an extra shift.  Article 26.11 speaks of developing a process for assigning non-scheduled work by “consensus,” considering “the availability and qualifications of personnel, efficiency of operation, employee needs and fiscal impact on the Employer.”  Rather than proceed by consensus, the Union is attempting to impose a process without regard to those agreed-upon elements, and one which will penalize temporary employees for coming to the Employer’s aid.  The Agreement does not contemplate such a penalty.

The Arbitrator should conclude that the Employer did not violate Article 37, and deny the grievance.

 OPINION

PRELIMINARY MATTERS

The Union bears the burden of persuasion as the moving party in this contract interpretation case.  To prevail, it must show, by a preponderance of the evidence, that the Employer violated the Agreement as to October 24.  The parties agree the Employer followed proper procedures in filling the October 20 shift.

The purpose of contract construction is to give effect to the parties' intent.  This task cannot be per­formed in an overly literal or mechanical manner, but must be done with an eye to workplace realities.  Where the Agreement does not specifically address the issue raised in a grievance, the Arbitrator must attempt to discern the parties' intent.  However, the Arbitrator cannot indirectly rewrite the parties' agreement under the guise of interpretation or bestow upon a party a right not won in bargaining.  Instead, she must apply principles reasonably drawn from other provisions of the Agreement.

The ability to manage and direct the workforce is an inherent management right, and is also reserved to the Employer by Article 2 of this Agreement.  The Arbitrator does not sit as a substitute for management.  If the Employer’s action was not inconsistent with the terms of the Agreement, then no contractual violation occurred, even if defensible policy arguments exist in favor of a different course of action.

Arbitrators are not bound to such legal concepts as stare decisis and res judicata.  Considerations of fairness and predictability have, however, led most arbitrators to accord some deference to prior awards in some circumstances.  The appropriate degree of deference lies along a continuum.

At one end of the spectrum, most arbitrators apply the concept of res judicata where the prior decision involved the identical contract provision and the same parties.  This deference serves the important interests of finality and consistency.  Rather than engage in a search for an arbitrator of a different view, when a party disagrees with a prior award, it may seek to modify the contract in subsequent negotiations.

Arbitrators who normally adhere to the concept of res judicata recognize several reasons to decline to treat some prior awards as such, even where the issues, contracts, and parties are identical.  The most widely recognized reasons include:  (1) circumstances have since substantially changed; (2) the prior decision was based upon an ob­vious and substantial error of fact or law; (3) the prior decision was made without the benefit of important relevant facts; or (4) there is no justification in logic or equity for the result reached.

Where a prior award involved different parties or a different bargaining unit, it is inappropriate to treat it as res judicata.  Even then, however, an arbitrator must balance the interests of finality and con­sistency against any doubts s/he may have about the wisdom of the prior decision.  Deference remains appropriate where the issue and contract language are identical and there is some nexus among the parties.  In that event, only very serious doubts about the prior proceeding can warrant a contrary conclusion.

Finally, the least deference is due where a prior award involved both a different contract and differ­ent parties.  In that event, an arbitrator may find the reasoning in a prior award persuasive.  The degree of persuasiveness depends on the similarities in contract language and facts, as well as the arbitrator's judgment as to the soundness of the principles underlying the prior award.

THE MERITS

None of the terms of the Agreement explicitly spell out the Employer’s obligations in the situation that arose in this case.  It is thus necessary to determine whether the parties were more likely than not to have intended the result argued by the Union, in light of the other provisions of the Agreement.

The Employer did not have the ability to assign the October 24 work to a temporary employee on a non-overtime basis, as the Union urges.  The only part-time temporary employee in the Department who was not already working that day was Hawkins, a trainee who had already been deemed not qualified to work the October 20 shift.  Thus, the Employer’s only chance to avoid paying overtime for one shift that week would have been to convince Davis to work in Selvi’s stead on October 24.  Any other assignment neces­sarily involved payment of overtime for that shift.  In any event, the question is not whether the Employer should have scheduled that shift so as to avoid paying overtime.  The question is whether it had a contractual obliga­tion to assign that shift to someone other than Selvi once it became apparent that her agreement to work the October 20 shift made overtime likely for her last scheduled shift that week.

Although the Agreement permits the Employer to require overtime, it demonstrates the parties’ intent to encourage the use of volunteers instead where possible.  Thus, Article 37 provides an incentive (and complies with law) by providing premium pay for overtime work; it also sets up a mechanism for first offering overtime to volunteers before turning to mandatory overtime.  Article 26.11 creates in­centives for a laid-off employee to volunteer for unscheduled work, because by doing so s/he can earn income (if not using vacation and/or comp time during the layoff) or main­tain the same income stream while preserving vacation and/or comp time for later use (if using vacation and/or comp time during the layoff).

Article 26.11 demonstrates that the parties anticipated that working an unscheduled shift could result in the payment of overtime unless adjustments were made to scheduled paid time.  They agreed to adjust laid-off employees’ pay status if necessary to avoid payment of overtime.  They did not include any explicit requirement for ­a schedule adjustment where the unscheduled work is performed by a full-time worker who is currently working; instead, they left it to individual departments to develop a process for filling remaining unscheduled work.

Similarly, Article 37 does not explicitly require ­adjustments to the schedules of employees who volunteer to work overtime.  Thus, for example, if Topuz had accepted the offer of an additional shift on October 20, nothing in the Agreement explicitly obligated the Employer to post her October 24 shift as an overtime shift for bidding by more senior employees.  Imposing such an obligation as to Selvi’s October 24 shift, based on her status as a temporary employee, would result in a curious and inconsistent shift in incentives for temporary employees.  In effect, for a full-time temporary employee, volun­teer­ing for an extra shift would simply trade one shift for another.  In context, it is unlikely the parties intended to discourage temporary workers from volunteering in this manner.

This case is unlike the Flexfab case cited by the Union, both factually and with regard to the con­trolling contract language.  There, the employer asked non-unit workers to perform unscheduled weekend work after it was unable to find enough unit employees who were willing to volunteer for the overtime.  The arbitrator found the language required that the employer first assign the overtime, on an involuntary basis, to the least senior unit employees.  In the case at hand, the October 24 work was not un­sched­uled work; it was regularly scheduled work which had already been assigned pursuant to the Employer’s scheduling procedures.  It became an overtime shift only because the person already assigned to it worked an un­sched­uled shift earlier in the week.  Assigning the October 24 shift to a different employee would have required extra scheduling efforts on the Employer’s part, in addition to the scheduling efforts that went into staffing the October 20 shift.  It is unlikely the parties intended to require the Employer to find two volunteers every time an employee called in sick – one for the original vacant shift, and a second one to substitute for the volunteer on his/her last scheduled shift of the week.  The Arbitrator will not write into the Agreement a requirement to undertake such extraordinary scheduling efforts.

For all the above reasons, it is concluded that the Union has not proven, by a preponderance of the evidence, that the Employer violated the Agreement in scheduling Department cashiers in the manner it did.  The grievance is therefore denied.

AWARD

OSHU did not violate Article 37 with respect to the scheduling of Food & Nutrition Department Cashiers during pay period #22 in October 1999.

   LUELLA E. NELSON - Arbitrator


[1]           Except as otherwise indicated, all dates refer to 1999.

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