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Title: City of Xxxxxxxx and Xxxxxxxxx Police Association
Date: September 17, 2001
Arbitrator: Jean A. Savage 
Citation: 2001 NAC 135

 
In the Matter of Arbitration

          between 

City of Xxxxxxxx 
    
      (Employer) 

          and 

Xxxxxxxxx Police Association
            (Association)

 

Grievance:
Records Schedule Change

 

                                                                                            

 

BEFORE: Jean A. Savage, Arbitrator
APPEARANCES: For the City:
Xx. Xxxxxx X. Xxxxxxxx
Assistant City Attorney
For the Association:
Xx. Xxxx X. Xxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxx & Xxxxxx
PLACE OF HEARING: Xxxxxxxxx, OR
DATE OF HEARING: June 1, 2001
POST HEARING BRIEFS:  July 27, 2001
Date of Award: September 17, 2001

City of Xxxxxxxxx                                         Grievance:  Records Schedule Change
(Employer)                                                    Date of Award:  September 17, 2001

and

Xxxxxxxxx Police Association
(Association)

 ANALYSIS AND AWARD 

I.      Introduction:

            The undersigned, Jean A. Savage, held a hearing in the above-captioned matter under the provisions of a collective bargaining agreement between the City and the Association effective from July 1, 2000, through June 30, 2002. The hearing was held in the third floor conference room at Xxxxxxxxx City Hall in Xxxxxxxxx, Oregon, on June 1, 2001. Mr. William J. Scheiderick, Assistant City Attorney, represented the City and Mr. Mark J. Makler, attorney with Garrettson, Goldberg, Fenrich & Makler, represented the Association.

The hearing proceeded in an orderly manner. Both parties were afforded a full opportunity to present evidence, to examine and cross-examine witnesses, and to argue in support of their contentions. The advocates fully and fairly represented their respective parties. All witnesses testified under oath as administered by the arbitrator. The arbitrator recorded the proceedings on tape solely to support her personal notes. The parties elected to file briefs and agreed that the briefs would be postmarked by July 16, 2001. Subsequently, the parties agreed to an extension to July 27, 2001, for the filing of briefs. It was agreed that the award would be postmarked not later than September 17, 2001. The arbitrator received the parties’ briefs, which were timely postmarked, and officially closed the hearing on receipt of the briefs. 

            There were no challenges to the substantive or procedural arbitrability of the dispute. The parties requested that the arbitrator frame the issue. They also authorized the arbitrator to retain jurisdiction in the matter following the issuance of an award to ensure compliance with any remedy awarded. The parties agreed that they would not introduce materials or information about the Records Division schedule change that postdate the change. 

II.   Issue:

The parties requested that the arbitrator frame the issue. Accordingly, the issue is:

Whether the City violated Articles 9 and 18 when it unilaterally changed the 4/10 work schedule for employees in the Records Division to a 5/8 work schedule? If so, what is an appropriate remedy?

III.  Relevant Provisions of the Collective Bargaining Agreement:

ARTICLE 2 – MANAGEMENT RIGHTS

            The Association recognizes and agrees that responsibility for management of the City and direction of its work force is vested solely in the City and responsible department heads. The Association further recognizes and agrees that in order to fulfill this responsibility, the City has the exclusive right to exercise the regular and customary function of management including but not limited to directing the activities of the department … to determine work schedules (subject to Articles 9 and 18) and assign work and to exercise any other right not specifically abridged by this Agreement. 

ARTICLE 9 – HOURS AND OVERTIME

            This section shall not be construed as a guarantee of hours of work per day or per week.

           

9.2    Work Week. An employee’s work week shall begin on the first regularly scheduled work day following the employee’s regularly scheduled days off. The City and the Association recognize the following work schedules in a work week. 

a.    5/8 Schedule.  This schedule shall consist of seven (7) consecutive days consisting of five (5) consecutive eight (8) hour work days, and two (2) consecutive days off. 

b.      4/10 Schedule.  If assigned by the City, this schedule shall consist of seven (7) consecutive days consisting of four (4) consecutive ten (10) hour work days with three (3) consecutive days off. 

9.3    Work Day.  The work day shall consist of a twenty-four (24) hour period. The first work day commences at the start of an employee’s regularly scheduled work week. The work day shall include lunch periods, rest periods and training periods. 

9.4    Work Shift.  Each employee shall be scheduled to work on a regular shift (i.e., Day Relief, Swing, Grave) which shall have regular starting and stopping times. 

9.5    Work Schedule.  Work schedules for shifts which are bid showing the employee’s work days and regular starting and stopping times, work week and work shift shall be posted on the department bulletin board. Except for emergency situations and for the duration of the emergency, changes in work schedules shall be posted seven (7) days prior to the change.

ARTICLE 18 – SENIORITY AND PROBATIONARY PERIOD

           

18.7  Seniority Shift Schedule.  There shall be three (3) shift changes per year, each beginning the first Sunday of the months of January, May and September. The City shall determine the work schedules, the number of persons to work a given shift and the days off allowed pershift for a twelve (12) month period. The determination of need for coverage in any division (K-9, Motor, Patrol, Records, CID, SED and special assignments) is at the sole discretion of the City. Shifts will be selected by seniority as outlined in the shift bidding process, Section 18.8. Seniority shall be defined as in Section 18.1.

           

18.11 Between regular shift rotations, the Chief or his designee may, for good cause and based upon a good faith analysis of operational and/or personnel needs of the Department, reassign employees to a different shift. Employees involved shall receive at least seven (7) calendar days’ written notice prior to such reassignments, unless precluded by an emergency. Employees involved shall be afforded the opportunity to discuss the matter with the Chief and invoke the grievance procedure if they are not satisfied with explanations. Such grievance procedure shall not affect or delay the employee’s compliance with the Chief’s action.

ARTICLE 20 – GRIEVANCE PROCEDURE

           

20.6         

c.       The cost of the arbitrator shall be borne by the losing party as determined by the arbitrator. Each party shall be responsible for cost of presenting its own case to arbitration.

d.      The arbitrator shall be limited to the interpretation and application of the    specific provisions of this Agreement and shall have no authority or jurisdiction to add to or revise the Agreement of the parties.

IV. Statement of Facts:

This dispute began when the City eliminated the 4/10 schedule in the Records Division in August 2000 in favor of a 5/8 schedule. Records Division employees perform general telephone, clerical, receptionist, and statistical work in support of the Police Records function. Their tasks include making criminal history checks in outside databases, maintaining the sex offender register, and releasing vehicles. The Division is staffed 7 days a week, 24 hours a day.

The City initiated the 4/10 schedule, 4 days of 10 hours each, in the Records Division in 1993. At that time, the International Brotherhood of Teamsters (IBT) represented the Police Department, including Records Division employees. IBT and the City added Article 9.2,b, which provides for a 4/10 schedule, to the contract in 1992. Following that change, the City unilaterally changed Records employees to a 4/10 schedule, and employees remained on that schedule until August 2000.

            In January 2000, the Oregon Employment Relations Board (ERB) certified the Xxxxxxxxx Police Association as the collective bargaining representative for the Police Department. Covered classifications are:  “Police Officer, Sergeant, Records Specialist, Senior Records Specialist, Community Services Officer, and Property Control Specialist.” (See Article 1.1) The Association and the City entered into negotiations for a collective bargaining agreement covering the classifications noted and agreed to keep the terms of the IBT contract in effect during negotiations. The City and the Association reached a new agreement on July 8, 2000 and signed it on August 2, 2000.

            On August 3, 2000, xxxxxxx xxxxxxxxx, Records Manager, and Captain xxxxxxx, who supervises the Records Division, held a meeting with Records Division employees. The Records Manager asked employees for suggestions on how to handle staffing shortages that had been apparent to management for approximately two months. At the meeting, management raised the possibility of eliminating the 4/10 schedule. Xxxxx xxxxxxx, the Association’s President, learned that management was contemplating a change and the Association immediately requested to bargain.

            The parties met in the afternoon on August 4th to discuss the change, although the City argued, and continues to argue, that it has no duty to bargain. At the meeting, the Association President, received a copy of a memorandum from the Records Manager, dated August 4th, which informed employees that the 4/10 schedule would be eliminated as of August 14, 2000, in favor of a 5/8 schedule. Subsequently, the parties agreed to make August 20, 2000, the effective date to preclude any employee from losing a 40-hour work week as a result of the change.

            The Association grieved asserting a violation of Article 18.11. The City denied any contract violation. The Association pursued the matter through the grievance procedure and the parties selected this arbitrator from the Oregon Employment Relations Board panel. The parties attempted to resolve their dispute before arbitration, but were unable to do so. Consequently, a hearing was scheduled.

V.     Positions of the Parties:

A.     The Association:

The Association argues that the contract language is clear, unambiguous, and unequivocal. Further, the Association asserts that when the relevant language is read in context and the contract is construed as a whole, it does not allow the City to use

Article 18.11 or any other provision to change the Records Division employees from a 4/10 to a 5/8 work week. The Association also asserts that “…there is nothing in the current contract … that states that the City can un-assign a 4-10 work week or how the City can un-assign a 4-10 work week.” (Association Brief at 18-19.) 

            The Association also argues that the City “sandbagged” the Association by failing to bargain in good faith and refusing to bargain about the change in the Records Division employees’ work week.  (Association Brief at 9.) Specifically, the Association agues that the City made no proposals to change the Records Division work week and changed it one day after executing its first contract with the Association. Specifically, the Association charges that during negotiations the City “…deliberately withheld information and deliberately did not tell the Association that the City desired to change the work week of Records Division employees.” (Association Brief at 10.) (Emphasis in original.)

            The Association asserts that it is undisputed that hours of work is a mandatory subject of bargaining under ORS 243.698 et seq. Accordingly, the Association argues that any changes in employees’ work schedules require mid-term bargaining. The City must bargain, the Association asserts, before it can make a change in Records Division work schedules. 

The Association also argues that Article 18.11 is limited to changes in employees’ work shifts as defined in Article 9.4. Changes in work weeks are not allowed in

Article 18.11, according to the Association. The Association also notes that it proposed contract modifications that the City accepted which changed definitions of a work day, a work shift, a work schedule, and a work week in Article 9. Article 18.11, the Association argues, must be read in context and construed with the entire contract, including

Article 9; in order to determine what is meant by the language that allows the City to change an employee’s shift. The Association argues that although Article 18.11 allows a unilateral shift change, it does not allow the City to change an employee’s work schedule, if that change involves changing the work week of an employee. Further, the Association asserts that the City is asking the arbitrator to abrogate changes to the contract’s definitions of the terms work shift, work schedule, and work week.

Finally, the Association argues that it did not waive its right to bargain and that the arbitrator should not grant the City a waiver of Association rights. The Association asserts that the City wants changes in Articles 9 and 18 to mean something other than what they provide and seeks a ruling that the City can make unilateral changes in work schedules. According to the Association, the City did not obtain such a waiver in bargaining.  

            As a remedy, the Association asks the arbitrator to find a violation of Article 18.11 and conclude that the City did not have the right to use that article to change employees’ work weeks and work schedules. The Association also seeks an order requiring the City to bargain before implementing any change in work schedules. In addition, the Association requests that the arbitrator reinstate Records’ employees to a 4/10 work week until negotiations have occurred and resolution is reached. Finally, the Association requests overtime, at an employee’s appropriate overtime rate, for 8 hours of work performed on a day that would have been a regular day off on the 4/10 work schedule. The Association also requests that the arbitrator designate the City as the losing party.

B.  The City:

            The City argues that it has not violated Article 18.11. According to the City, it chose to implement the change in Records employees work schedules under Article 18.11 because its provisions allow affected employees to discuss changes with the Police Chief. The City also points out that the Association argued a violation of Article 18.11 when it grieved the Records Division change. The City asserts that it denied any violation of Article 18.11 in response and asserted that it has the right to change schedules under Articles 2 and 9.2. The City also argues that the Association did not refute the City’s testimony describing its operational reasons for making the Records Division change. According to the City, the Association asserted for the first time at the hearing that Article 18.11 allows only changes in work shifts. 

First, the City asserts that the arbitrator should find that the issue of whether the City improperly refused to bargain is not before her. This allegation, the City asserts, requires that the Association file a complaint and seek a hearing before the Oregon Employment Relations Board (ERB). Second, the City argues that it has no duty to bargain. The City argues that the parties fully bargained concerning work schedules in their contract negotiations. According to the city, Oregon School Employees Association v. Astoria School District 1, 13 PECBR 474 (March 1992), holds that an employer’s duty to bargain is exhausted when “an extant written agreement includes a provision that is specifically relevant to the issue in dispute.” Finally, the City argues that the past practice on schedules supports its argument that no bargaining is required on assignment of schedules. The City notes that the 4/10 schedule in the Records Division went into effect at management’s initiative.  

Citing Marion County Law Enforcement Association v. Marion County, 130 Or. App. 569 (1994), the City argues that the arbitrator should apply the “plain meaning” rule as to unambiguous contract provisions. Further, the City argues that if the arbitrator considers Articles 2, 9.2b, 9.5, and 18.7 together and Association testimony that the contract was “fully bargained,” no contract interpretation is necessary. Concerning bargaining history, the City argues that the Association tried and failed in negotiations to delete Articles 2 and 9.2b that reserve the City’s discretion to assign a 4/10 work schedule.           

            The City also argues that if the arbitrator finds that the applicable contract language is ambiguous, the arbitrator should consider the contract as a whole and give meaning and effect to the entire contract. In this regard, the City cites Lane Unified Bargaining Council v. South Lane School District 45J3, 18 PECBR 1 (1999) in which the Oregon Employment Relations Board found that a more specific contract provision restricted a general waiver and both articles still had meaning and effect. According to the City, Article 18.11 offsets Article 18.8, which gives employees the right to bid for shifts. The City also asserts that Article 18.7 gives the City the right to determine work shifts and that Article 9.5 refers to the City’s right to assign work schedules. All of these sections, according to the City, must be read with the definitions proposed by the Association and negotiated into the contract. The City also rejects the Association’s assertion that the City “‘must have known’ that the new narrower definitions of ‘work schedule’ and ‘work week’ meant that management could no longer change work schedules, only work shifts.” (Employer’s Brief at 9.)

VI.  Discussion and Analysis: 

A.      The Issue:

            The question before the arbitrator is the parties’ intent when they agreed to contract language concerning the schedules of Records Division employees. Both parties focused on Article 18.11 in drafting their issue statements. The Association stated the issue as: 

Did the City of Xxxxxxxxx violate Article 18, Section 18.11 of the current contract between the City and the Association when it unilaterally changed the work week of the Records Division from a 4-10 work week to a 5-8 work week?

The City submitted the following statement:

Reading the Agreement as a whole, did the City violate Article 18.11 of the Collective Bargaining Agreement between the parties when it changed the workweek for all employees in the Police Records division, from a 4-day, 10 hour/day work schedule to a 5-day, 8 hour/day work schedule? If so, what is the remedy?

Because the parties were unable to agree on an issue statement, they deferred to the arbitrator’s construction of the issue. After examining the record, the arbitrator determined that the dispute is whether the City violated the contract in unilaterally changing the Records Division employees from a 4/10 schedule to a 5/8 schedule. An examination of the contract reveals that Article 9, as well as Article 18, has relevant language. Consequently, the arbitrator finds that the issue is whether the City violated Articles 9 and 18 in making the Records Division scheduling change.

B.  Framework for Analysis:

In interpreting the meaning and application of a contractual term, arbitrators use standards of contract interpretation which are “designed to determine the intent of parties in adopting certain language to express their rights and obligations.”[1] Arbitrators differ in determining the role of ambiguity. Some arbitrators follow the rule that if words “are plain and clear, conveying a distinct idea, there is no occasion to resort to technical rules of interpretation … .”[2] This approach is known commonly as the “plain meaning rule.” Another approach to understanding the parties’ meaning and intent, that this arbitrator follows, holds that “language, on its own, generally does not convey one unambiguous meaning without reference to the context in which the language arose.”[3] This view holds that “the presence or absence of ambiguous meaning in the agreement can only be established in light of all relevant information.”[4] In other words, “relying on evidence of the total transaction provides more data about the actual intent of the parties.”[5] The goal of such an analysis is to aid in interpretation of the language in a contract. Regardless of the approach followed by an individual arbitrator, there is consensus among arbitrators that an interpretation must avoid granting a party a benefit or privilege which it did not gain at the bargaining table.

C.  Relevant Contract Provisions:

            Article 2, Management’s Rights, provides that the City has the right “to determine work schedules” subject to Articles 9 and 18. Article 9, among other matters, provides that in a work week employees may work one of the following schedules:  a) five days per week, 8 hours per day, b) four days per week, 10 hours per day, or c) a flexible schedule.[6] The provision for a 4/10 work schedule states that “If assigned by the City, this schedule shall consist of seven (7) consecutive days consisting of four (4) consecutive ten (10) hour work days with three (3) consecutive days off.” It is the preface to this provision, “If assigned by the City, … .” that is the key to this dispute.

            In order to determine the parties’ intent, it is helpful to begin with the ordinary meaning of the words “to assign.” Among the ordinary definitions of those words is “to designate; name; specify: to assign a day for a meeting;” and “to give or allocate; allot: to assign rooms at a hotel.” Random House Webster’s Unabridged Dictionary 125 (2nd ed. 1998). Because “by the City“ follows “if assigned”, it appears that the City has the right to decide whether employees will work a 4/10 schedule.

            The Association argues against this interpretation by asserting that the City’s action in withdrawing the 4/10 schedule is a contract violation because the contract includes nothing about the un-assignment of a 4/10 schedule. The Association President testified that the Association proposed to eliminate the words “If assigned by the City, …” because the 4/10 schedule was already assigned and the clause was unnecessary.

            Usually, the right to assign carries with it the right to change an assignment. For example, in most labor-management contracts, management has the right to assign work. The right is understood to include the right to change an employee’s work assignments. If the right to assign work excluded the right to un-assign duties, once management assigned an employee work tasks, it would be unable to withdraw those tasks and substitute others. Such a situation could result in an employer being unable to respond to changing needs in the workplace. In other words, reading the word “assign” as excluding the right to change an assignment would lead to an inability to manage. Generally, parties do not intend such a result. Indeed, management rights clauses, such as the one the Association and the City agreed to, are designed to preserve management’s ability to respond to changes in operations.

            The City and the Association stated in Article 2 that “the City has the exclusive right to exercise the regular and customary function of management.” As noted, they also stated that the City has the right “to determine work schedules.” Further, in connection with shift changes, they agreed in Article 18.7 that the City has the right to “determine the work schedules, the number of persons to work a given shift and the days off allowed per shift … .” That Article goes on to state that the “determination of need for coverage in any division … is at the sole discretion of the City.” Although the contract includes no language permitting or precluding the City from changing a 4/10 work schedule after it is assigned, the language in Articles 2 and 18.7 shows the parties’ intent that the City retain authority to determine the work schedules of its employees. The arbitrator finds that these articles support the City’s assertion that the contract allows management to change work schedules unilaterally. Accordingly, the arbitrator also concludes that the Association and the City intended the words “if assigned” in Article 9.2, b to include management’s right to change an employee’s work schedule assignment.

D.  Applicability of Article 18.11:

Article 18.11 allows management to reassign employees to other shifts outside the bidding process. Shifts are defined in Article 9.4 to include day, relief, swing, and grave. The City asserts that it invoked Article 18.11 in changing work schedules because that article provides for an appeal to the Police Chief and to the grievance procedure if an employee is dissatisfied whereas Article 9.2,b offers no appeal. Although the Association asserts that Article 18.11 is not relevant, both parties referred to that article throughout the grievance procedure and in their issue statements before the arbitrator. Consequently, the arbitrator will examine whether Article 18.11 is applicable to this dispute. 

Article 18.11 relates to Article 18.7 which provides that there will be three shift changes annually and that shifts will be selected by seniority. As an exception to this process, Article 18.11 provides that the Police Chief, or his designee, may “for good cause and based upon a good faith analysis of operational and/or personnel needs of the Division, reassign employees to a different shift.” The City may reassign employees only in certain circumstances and must follow certain procedures. Article 18.11does not refer to changes in work weeks or work schedules.  

The Association appears to be arguing that because Article 18.11 is limited to work shifts and the contract lacks specific procedures for changes in work weeks or work schedules, management is precluded from changing either work weeks or work schedules. This argument is similar to the Association’s explanation of Article 9.2, b, and the arbitrator finds it unpersuasive for similar reasons. First, it is generally understood that those management actions not limited in a contract are reserved to management.[7] Second, the parties included a management rights article, Article 2, in their contract giving the City the right to determine work schedules, subject to Articles 9 and 18. Consequently, the arbitrator finds no support for the argument that the City cannot change employees’ work schedules because that action is not included specifically in Article 18.11. 

As noted, the contract includes no procedures that management must follow before changing employees’ work schedules. In the absence of such procedures, the arbitrator would exceed her authority if she were to add them to the contract by finding that the requirements in Article 18.11 governed the work schedule change in Records. The parties specifically agreed in Article 20.6,d that an arbitrator “shall have no authority or jurisdiction to add to or revise the Agreement of the parties.” Therefore, the arbitrator finds that to the extent that the change to a 5/8 schedule involved work schedules, the contract does not require that the City follow Article 18.11 procedures.  

Even assuming that Article 18.11 were applicable to a work schedule change, the record does not establish that the City lacked have “good cause” to change employees’ shifts and failed undertake “a good faith analysis of operational and/or personnel needs of the Department.” The Records Manager testified that beginning in June, she became concerned about staffing. She stated that she lost three staff members, another was scheduled for maternity leave, and employees had scheduled vacations that had to be covered. Further, according to the manager, the division used an average of 80 hours of sick leave per month, which she considered “horrendous.” (Employer Exhibit No. 25.) Management initiated measures to cope with reduced staffing including requesting more volunteers for overtime, advertising vacancies, employing volunteers, hiring temporary help for certain tasks, eliminating the requirement to type taped interviews, and utilizing an officer on light duty.  

The Records Manager testified that none of these measures, or any suggested by employees in the August 2nd meeting, solved the staffing situation. Management concluded that changing the work schedule in Records to a 5/8 schedule, which is provided in Article 9.2,a, would have a favorable impact on staffing. The City decided to make this change at least until the City could fill the staff vacancies. (See Employer Exhibits Nos. 26, 29, and 32.)

The Association does not challenge management’s description of the staffing shortages or the measures taken to overcome them. Further, the Association does not argue that management failed to meet the requirement for “a good faith analysis of operational and/or personnel needs” as required in Article 18.11. In view of the reasons presented by the City for the change, the arbitrator concludes there is insufficient evidence to find that the City failed to meet Article 18.11 requirements. 

E.  Change in Work Week:

The Association also asserts that Article 18.11 supports its argument that the City cannot change an employee’s work schedule if that means an employee’s work week will change. Specifically, the Association states that the City “does have a right to change a work shift, but does not have a right to change a work week or the work schedule if it involves changing the work week of an employee, and specifically in this case the Records Division employees.” (Association Brief at 19.) There is no argument that the City violated the contract by changing any employee’s shift in conjunction with the institution of the 4/10 work schedule. However, Records’ employees now have a different work week because they are working five days per week instead of the four under the 4/10 schedule. 

The Association argues that the modifications to Article 9, which it proposed, preclude changes in an employee’s work week. Specifically, the Association states that “the parties modified what is a work day, modified what is a work shift, modified what is a work schedule, and modified what is a work week….” (Association’s Brief at 17.) According to the Association, a comparison of the language in the current contract with the prior one will prove its argument.

            The prior contract states that “The work week for overtime purposes shall be considered to begin at the beginning of the first shift following the employee’s days off. The work week may consist of any schedule mutually agreed to by the parties.” (Association Exhibit 2.) The current contract provides in Article 9.2 that  “An employee’s work week shall begin on the first regularly scheduled work day following the employee’s regularly scheduled days off. The City and the Association recognize the following work schedules in a work week.” (Association Exhibit 1.) The sections describing a “5/8 Schedule” and a “4/10 Schedule,” which follow that statement, were also in the prior contract. As noted, the change in schedule resulted in a changed work week for Records Division employees. The contract language concerning the work week, however, does not prohibit a change in the work week. Rather, it is simply descriptive of what constitutes the work week.

There is also descriptive language concerning work schedules. In Article 9.5, work schedules, there is no definition as such. Rather, the current contract states “Work schedules for shifts which are bid showing the employee’s work days and regular starting and stopping times, work week and work shift shall be posted on the department bulletin board.” The prior contract stated, “Work schedules showing the employee’s work days and hours shall be posted on the department bulletin board.” Following those initial sentences, both contracts refer to posting changes in schedules and notifying employees of changes.

Although the wording changed in the current contract, the arbitrator finds that neither the description of a work week nor that of a work schedule is substantively different. Further, a careful reading of the other definitions the Association refers to, work day and work shift, and contrasting them with those in the prior contract, reveals changes in wording as opposed to changes in meaning. The Association president, in fact, testified that he believes that the new contract is better defined regarding work schedules and work weeks. Based on this examination, the arbitrator is not persuaded that the changes made to the definitions or descriptions of work day, work shift, work schedule, and work week affect the wording the parties agreed to in Article 9.2,b which gives the City the right to assign, or un-assign, a 4/10 work schedule. 

F.  Failure to Bargain in Good Faith:

The Association also argues that the unilateral change in the Records Division’s work schedules and the timing of that change demonstrates that the City failed to bargain in good faith during negotiations. Specifically, the Association argues that the City “deliberately deceived and sandbagged the Association” by not revealing an interest in changing the work schedule in Records during negotiations. (Association Brief at 10.) 

The issue, as the Association raises it, pertains to the City’s actions and tactics at the bargaining table during contract negotiations. The parties’ submissions of the issue to the arbitrator are, however, limited to a request for an interpretation of contract language concerning work schedules. In the arbitrator’s opinion, the issue of good faith bargaining during negotiations goes beyond the scope of the dispute that the parties submitted to the arbitrator. Consequently, the arbitrator believes that she would exceed her authority to decide it. Issues concerning good faith bargaining may be raised before the ERB in unfair labor practice procedures, but they are not appropriately before this arbitrator. See ORS 243.672(1)(e) and 243.672(3).

Good faith is, however, also an aspect of contract administration. Parties cannot ignore the need to act in good faith if they hope to preserve their collective bargaining relationship. Arbitrators recognize such a need for good faith when they impose a standard of reasonableness as an implied contract term. Arbitrators are also reluctant to uphold arbitrary, capricious, or bad faith managerial actions even where an agreement expressly grants a right to management.[8] In accordance with these concepts, the arbitrator finds that it is appropriate to examine the City’s action under the standards of good faith and reasonableness.

            The Association asserts its belief that the City “deliberately withheld information and deliberately did not tell the Association that the City desired to change the work week of Records Division employees.” (Association Brief at 10.) (Emphasis in original.) The Association points to the timing of the scheduling change. As noted, the parties signed the contract on August 2, 2000. The following day the Records Manager and Captain Xxxxxxx, who supervises the Records Division, held a meeting with employees. The purpose, according to the Records Manager, was to solicit employees’ ideas for changes. The day following that meeting the manager announced that the schedule would change to a 5/8 schedule. The timing of these events standing alone is indicative of bad faith. Further, announcing a decision the day after soliciting employees’ ideas makes the meeting appear to be a sham. It is simply unbelievable that a decision that the Records Manager knew some employees would dislike was made in less than 24 hours. In summary, the timing of the City’s change in Records employees’ work schedules suggests that the City did not act in good faith.

            As discussed, the evidence also discloses that a staff shortage had been apparent for a couple of months and that the Records Manager took steps to overcome it. The timing of her actions is significant. She testified credibly that one employee left in June. On June 6th, she requested that employees sign up for additional overtime to cover vacations. (Employer Exhibit No. 15.) On June 14th, she placed ads for more staff. (Employer Exhibit No. 10.) As noted, negotiations ended on July 8th. Two more staff members left that month and the Records Manager took other measures to alleviate the effects of reduced staffing. She also considered options that would have negatively affected employees, such as mandatory overtime and denial of vacations. Her efforts show a continual response to a staffing problem. The City’s action in changing schedules is consistent with a business need to make a change in operations. Despite the timing of the 4/10 schedule change, there is simply insufficient evidence to conclude that the City’s schedule change was arbitrary, capricious, or in bad faith.

F.      Mid-term Bargaining Obligation:

            The Association also asserts that the City has an obligation to bargain if it wants to change work schedules. The Association asserts that it did not waive its right to bargain by past practice or in contract negotiations.

            Turning to the parties’ past practice, there is no dispute that the City and the previous bargaining unit representative placed Article 9.2, b in the contract in 1992 to recognize the possibility that a 4/10 schedule might be used. The City unilaterally made the schedule change from 5/8 to 4/10 in 1993, apparently to meet operational and personnel needs that existed at the time. (Employer Exhibit No. 8.) Patrol, consisting of approximately 70 employees, also has a 4/10 schedule, but no evidence was offered that practices in that Division have any bearing on Records. In summary, past practice reveals that the City unilaterally instituted a 4/10 schedule in Records to meet operational needs-- precisely the reason it withdrew that schedule in 2000. In the arbitrator’s opinion, past practice supports the conclusion that the contract includes a management right to act unilaterally in assigning employees a 4/10 work schedule.

As to bargaining, the parties agree that hours are a mandatory subject of bargaining under ERB law. (See ORS 243.650(7)(a)). Testimony established that the parties discussed Article 9 provisions concerning employees’ schedules in contract negotiations. The Association’s president testified that the Association proposed a number of changes to Article 9 that he characterized as “clean up” proposals. Among these proposals were one to eliminate the language “As assigned by the City, …” in Article 9.2b and another to delete “to determine work schedules” in Article 2. (See Employer Exhibit No. 7 and 7A.) Sandra Miller, one of the City’s negotiators, testified credibly that she explained that these provisions gave the City the right to determine work schedules, such as whether to assign a 4/10 schedule. She also testified that she stated at the bargaining table that the City would not give up this right. Her notes support that testimony. (See Employer Exhibit No. 7B.) Captain Xxxxxxx, who also participated in negotiations, recalled this discussion. The Association did not offer testimony on this point.[9] 

The Association argues that because neither party proposed specifically to change work schedules in the Records Division, the Association retains its right to bargain on this issue. The Association also asserts that the arbitrator should not grant the City “a waiver of Association rights.” (Association Brief at 19.) The arbitrator concludes that the Association, in fact, bargained about changes in work schedules when it proposed changes in the language of Articles 2 and 9. Thus, the Association exercised its right to bargain.

The contract does not discuss when mid-term bargaining is appropriate. In Oregon, a public employer’s bargaining obligation is met if there is language in a contract that is “specifically relevant to the issue in dispute.” Oregon School Employees Association v Astoria School District 1, 13 PECBR 474, 480 (1992). In this instance, Articles 2 and 9.2,b are specifically relevant to the issue of a work schedule change in the Records Division. As discussed, Article 9.2,b, which describes a 4/10 work schedule, has a lead-in clause providing “If assigned by the City, … .” Accordingly, the arbitrator finds that the City did not have an obligation to bargain before changing the work schedule from 4/10 to 5/8 in the Records Division. 

VII.  Award:

Having carefully considered the entire contract and all evidence submitted by the parties concerning this dispute, the arbitrator concludes that the City did not violate Articles 9 and 18 of the contract when it unilaterally changed the 4/10 work schedule of the Records Division employees to a 5/8 work schedule.

Accordingly, the grievance is denied.

            Article 20.6,c of the contract provides that the losing party bear the costs of the arbitration. Consistent with this requirement, the arbitrator orders that the Association pay the arbitration costs.

 

 

Jean A. Savage, Arbitrator                                                         Date

 

[1] St. Antoine, Theodore J., ed., The Common Law of the Workplace 64 (1998).

[2] Elkouri & Elkouri, How Arbitration Works 470 (Marlin M. Volz & Edward P. Goggin 5th ed. 1997).
[3] St. Antoine, Theodore J., ed., The Common Law of the Workplace 67 (1998). 
[4] Id.
[5] Id. at 68.
[6] The contract specifically excludes Records employees from working a flexible schedule and that schedule is not involved in this dispute.
[7] St. Antoine, Theodore J., ed., The Common Law of the Workplace 93 (1998) (noting that in the absence of contractual language affirmatively prohibiting or authorizing a management action, an arbitrator will usually sustain the employer’s action on the grounds management retained or reserved the right to act). 
[8] Elkouri & Elkouri, How Arbitration Works 660 (Marlin M. Volz & Edward P. Goggin 5th ed. 1997).
[9] Mr. Makler, who represented the Association in negotiations as well as at the hearing, contends that he was unable to testify on behalf of his client because of Oregon Bar rules. Assuming these rules preclude Mr. Makler testifying, the Association’s president testified about negotiations at the hearing and was available for rebuttal testimony on this point.

 

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