Health and Science University and American Federation of State, County and
Municipal Employees, Local 328
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.
behalf of the Union:
Valerie Andreas, Staff Representative, AFSCME Local 328, 123 NE Third
Avenue, Suite 505, Portland, OR 97232
behalf of the Employer:
Nelson D. Atkin II, Esquire, Barran Liebman LLP, ODS Tower, 601 SW
Second Avenue, Suite 2300, Portland, OR 97204-3159
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
Employee – means a public employee who is included in the
bargaining unit as defined in Article 1, Recognition, herein.
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
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.
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  ten  hour days or four  nine  hour days and one
 four  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
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
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.
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
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)
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.
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
A temporary appointment may be made when:
An emergency, nonrecurring, or short-term workload need exists; and
An existing budgeted part-time or full-time regular, seasonal, or
limited duration position is not appropriate.
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
A temporary appointment to fill in behind an employee on approved leave
shall not exceed the period of the approved leave.
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.
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, 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.
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.
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
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.
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.”
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.
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.
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
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.
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.
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
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.
Arbitrator should conclude that the Employer did not violate Article 37, and
deny the grievance.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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 -
Except as otherwise indicated, all dates refer to 1999.