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Title: City of Portland and Portland Police Association
Date: February 7, 2002 
Arbitrator: Luella E. Nelson 
Citation: 2002 NAC 106

 

In the matter of arbitration between:

Portland Police Association

                           and

City of Portland 

 

RE: Academy Instructors 

Coaches Pay Grievance No. 

00-13

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

This Arbitration arises pursuant to Agreement between PORTLAND POLICE ASSOCIATION (“Association”), and CITY OF PORTLAND (“City”), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.

Hearing was held on November 20, 2001, in Portland, Oregon.  The parties had the opportunity to examine and cross-examine witnesses,[1] introduce relevant exhibits, and argue the issues in dispute.  Both parties filed post-hearing briefs on or about December 21, 2001.  The parties did not object to an extension of time for issuance of this Opinion and Award.

APPEARANCES:

On behalf of the Association:

David A. Snyder, Esquire, 522 SW Fifth Avenue, Suite 1275, Portland, OR   97204

On behalf of the City:

Lory Kraut, Esquire, Deputy City Attorney, City of Portland, 1221 SW Fourth Avenue, Suite 430, Portland, OR 97204

ISSUE

The parties were unable to agree on a statement of the issue or issues to be decided.  The Association would formulate the issues as follows:

1.                   Did the City violate Article 62 of the 1999-2002 labor agreement by failing and refusing to pay coaches pay to instructors teaching Academy classes?

2.                   If so, what is the appropriate remedy?

At the hearing the City proposed to formulate the issue as follows:

Are instructors who teach at either the Basic Academy or Advanced Academy entitled to coaches pay under Article 62 of the collective bargaining agreement; and, if so, what is the remedy?[2]

The parties stipulated the Arbitrator would formulate the issue or issues to be decided.  Having reviewed the record, the Agreement, and the parties' proposed statements of the issues, the Arbitrator formulates the issue as follows:

Did the City violate Article 62 as alleged in the grievance; and, if so, what is the remedy?

RELEVANT SECTIONS OF THE AGREEMENT (1999-2002)

ARTICLE 3

EXISTING STANDARDS

 

3.1           Standards of employment related to wages, hours and working conditions which are manda­tory for collective bargaining except those standards modified through collective bargaining shall be maintained at not less than the level in effect at the time of the signing of this Agreement.  Any disa­gree­ment between the Association and the City with respect to this section shall be subject to the grievance procedure.

ARTICLE 22

GRIEVANCE AND ARBITRATION PROCEDURE

...

22.2         Step I.     Any officer or the Association claiming a breach of any specific provision of this Contract may refer the matter in writing to the officer’s immediate supervisor outside the bargaining unit.  This grievance shall be presented within twenty (20) calendar days from the date of the alleged violation.

...

22.5.2      Each party shall be responsible for paying the costs of presenting its own case in ar­bi­tration, including the payment of witness fees, if any.  The costs by the arbitrator, court reporter (if any), and the hearing room shall be borne by the losing party.  Following the rendering of the arbitrator’s decision, the parties shall meet and attempt to agree which is the “losing party”.  If the parties are unable to so agree, the question of who the “losing party” is shall be submitted to the arbitrator who rendered the decision in question.  The arbitrator’s sub­sequent designation of the “losing party” shall be final and binding.  If the arbitrator cannot designate which party is the loser, each party will pay one-half (1/2) the cost of the arbitration.

 

22.6         All grievances shall be in writing and clearly identified as a “Grievance.”  All grievances shall include the following information:

...

               The article(s) of this Agreement alleged to have been violated, or the discipline alleged to have been imposed without just cause;

...

ARTICLE 62

COACH PAY

62.1         Officers designated as a coach serve at the discretion of the Bureau.  Officers will receive a 10% premium pay for any pay period in which they are designated and serve as a certified coach with an assigned trainee for all or part of the pay period.

 

62.2         Substitute coaches will receive an amount equal to one-tenth (.1) of one hour of their base pay rate for each hour, or portion thereof, that they are coaching a trainee.

 

62.3         If a coach works operational overtime with a trainee, the coach shall receive coach’s pay for the overtime hours worked.  For purposes of this Article, “operational overtime” shall not include court time.

 

62.4         Coach’s pay shall not be pyramided on any other premium pay received by the officer.

RELEVANT SECTIONS OF PRIOR AGREEMENTS

1996-99 AGREEMENT

ARTICLE 63

COACH PAY

63.1         Employees will receive an amount equal to one tenth (.1) of one hour of their base pay rate for each hour, or portion thereof, that they are designated as a coach.  In addition, if a coach works operational overtime with a trainee, the coach shall receive coach’s pay for the overtime hours worked.  For purposes of this article, “operational overtime” shall not include court overtime.  Coach’s pay shall not be pyramided on any other premium pay received by the employee.

1994-96 AGREEMENT

ARTICLE 62

COACH PAY

62.1         [identical to Article 63 of 1996-99 Agreement]

1991-94 AGREEMENT

ARTICLE 58 – COACH PAY

Police officers will receive an amount equal to eight (8) hours of their base pay rate for each payroll period, or portion thereof, that they are designated as a coach.  Management will develop a coach program for training Detectives by July 1, 1982.  Management will determine the length and amount of training necessary and then designate those to be placed in coach status.  Compensation for a designated Detective or Criminalist Coach will be eight (8) hours at their base pay in cash or compensatory time off as determined by management.

1988-91 AGREEMENT

ARTICLE 58 – COACH PAY

[identical to Article 58 of 1991-94 Agreement]

FACTS

BACKGROUND

            New recruits with the Portland Police Bureau (“Bureau”) serve an 18-month probationary period.  Probation begins with a 10-week Basic Academy in Monmouth, conducted by the State Department of Public Safety, Standards and Training (“DPSST”).  Recruits then begin field training divided into five phases, the first of which is four weeks long and the others of which are approximately five weeks each.  In the first four phases, they work with Field Training Officers (“FTO’s”) assigned by the Bureau.  At some point after Phase II, usually between Phase II and Phase III, they attend an Advanced Academy, consisting of classroom in­struc­tion conducted by the Bureau’s Training Division.  No FTO is assigned to them during the Academy because they are not in the field.  Upon completion of the Academy, recruits again work with an FTO through Phase IV.  Although an FTO is still assigned in Phase V, recruits work independently in Phase V and for the remainder of their probation.  Recruits cannot be assigned to the same FTO for more than two phases.  They are assigned to FTO’s on a 1:1 basis, except in Phase V, where the ratio may be 2:1.

General Order 210.05 describes the Recruit Officer Field Training and Evaluation Program (“FTEP”) in detail.  It defines an FTO as:

An officer who has successfully completed the Portland Police Bureau’s Field Training Officer School and has maintained certification, including re-certification classes as scheduled by the Training Division.

The Manual of Policy and Procedure outlines part of the policy in General Order 210.05, using slightly dif­ferent nomenclature in defining FTO’s: “a member who has successfully completed the Bureau’s FTO school and has maintained certification, including re-certification classes as scheduled by Training.”  FTO cert­ifi­ca­tion requires 40 hours of training.  Neither the General Order nor the Manual use the term “coach.”

FTO’s complete Daily Observation Reports (“DORs”) at the end of each work day, except in Phase V, where they complete Bi-Weekly Phase V Evaluation Forms.  In the last week of Phase V, they com­plete an End of Phase Evaluation Form.  If a recruit is assigned to work temporarily with an officer who is not a cer­tified FTO, the officer does not complete a DOR, but writes a memo to the Field Training Coordinator (“FTC”) outlining the day’s activities and the recruit’s performance.  FTC’s oversee field train­ing and meet monthly with recruits and FTO’s.  They are not assigned individual recruits, do not work in a patrol capacity, and do not fill out DOR’s.  The General Order and Manual do not discuss certification of FTC’s.

FTO’s and FTC’s are assigned to the Training Division.  Some Academy instructors are permanently assigned to the Training Division; others merely assist with particular parts of the curriculum.  For example, 10-14 instructors from precincts may work with a class of 12 recruits by taking part in role plays on patrol tactics.  That instruction is conducted with re­cruits working in patrol cars, responding to scenarios in a controlled classroom setting.  The ratio of recruits to instructors for firearms training is 3:1.  Most of the rest of the Academy cur­riculum requires fewer instructors.  There are no cert­ifi­cation standards for some Academy subjects, and those instructors are selected based on their will­ing­ness to train recruits and their overall performance rather than formal certification.  Instructor Paul Dolbey, who has also worked as an FTO in the past, testified the FTO rela­tion­ship is a coaching one, whereas instructors play an instructional role.

Academy instructors document their performance observations in a memo to the Training Division sergeant.  They may work one on one with a recruit to improve substandard per­formance.  Instructors administer tests on certain functions; recruits who fail those tests can receive remedial training before being retested, and are terminated if they fail the retesting.  Shortly before the arbitration hearing, instructors in firearms and patrol tactics began to complete DOR’s on those subjects.  The DOR’s for those classes have been specially developed for the Academy, and differ in some respects from those used by FTO’s.

GENESIS OF THE PAST PRACTICE

Prior to 1990, only FTO’s and FTC’s received coach pay.  In 1990, then-Officer John Tellis ap­proached the Lieutenant then in charge of the Training Division with a recommendation that in­structors also receive coach pay.  At the time, Tellis was the lead driving instructor as well as the patrol tactics in­structor.  He asked why the FTC received coach pay, and was told it was because the FTC was the “head coach.”  He responded he was essentially the head coach when he worked with recruits.  The response he got was that his job was to instruct.  Tellis pointed out the FTC’s job was to administer the program.  The response was that the FTC was responsible for the recruits.  Tellis pointed out that, when he was instructing, he was responsible for recruits and for what happened in his class.  The Lieutenant agreed.  There­after, until this dis­pute arose, the City paid coach pay to instructors, including both those reg­ularly assigned to the Training Division and those brought in to assist with specific subjects.  To claim coach pay, instructors routinely filled out a “non-court overtime form” showing the hours involved.  Tellis testified it was common knowledge among both officers regularly assigned to the Training Division and those brought in from precincts that they were entitled to coach pay.  He was unaware that anyone had been denied coach pay prior to this grievance.  He is now the acting Lieutenant in charge of the Training Division.

THE CURRENT DISPUTE

On April 28 and May 5, 2000, Dolbey submitted claims for coach pay for actual hours of instruction at the Academy.  On May 18, Timekeeper Mary Leon returned the forms with a memo reading as follows:

Effective April 13, 2000 it has been determined Instructors will not receive coaches pay for teaching Academy classes.  Therefore, the attached application(s) for payment have been denied.  Should you have a questions [sic] please contact Commander Kauffman of the Training Division.

Other Academy instructors received similar memos.  The Association responded with a May 26 grievance asserting the City had violated Article 62 in the follow­ing manner:

On April 13, 2000, the City unilaterally determined that Instructors in Academy classes would no longer receive the coach premium called for by Article 62 of the collective bargaining agreement.

The City denied the grievance at the first step on the following basis:

... Article 62 of the PPA contract does not call for paying instructors in Academy classes coaches premium.  Coach pay, according to the contract, is for officers who “...are desig­nated and serve as a certified coach with an assigned trainee...”.  Section 61.2 [sic] provides coach pay for substitute coaches when “...they are coaching a trainee.”  Instructors in Academy classes are not in a Coach/trainee relationship; they are not designated as coaches, nor do they have an assigned trainee.  The relationship the instructors have is one of instruc­tor/student, which does not qualify for coach pay under Article 62.

Captain Dennis Merrill provided a more detailed explanation in a Step II response, as follows:

The current Labor Agreement (ratified by City Council 4/12/00) between the PPA and the City of Portland, contains significant changes to Article 62 (Coach Pay).  These changes ad­dress the criteria for coach eligibility as well as the compensation (premium pay) coaches receive.  It also differentiates between designated coaches and substitute coaches and the manner that they are compensated.

 

The language in this Article is straightforward.  The purpose of Article 62 is to appropriately compensate designated coaches with assigned trainees.  General Order 210.05 (Recruit Officer Field Training and Evaluation Program–effective August 7, 1999) requires that field training officers (coaches) complete a Field Training Officer School and maintain cert­if­ication to serve in that capacity.  Officers who are not certified are not eligible to be assigned trainees as a Field Training Officer (coach).  Additionally, in order to receive the coaches 10% premium, they must actually be assigned a trainee.  It should be noted that sub­stitute coaches do not need to be certified and are compensated only for those hours ac­tually worked as a coach.  However, they have the requirement to complete a Daily Observation Report, regardless of the number of days they work with a specific trainee.

 

Instructors for the Training Division–detached, temporary, or assigned–are not coaches (Field Training Officers).  Their function is entirely different.  They do not work with an as­signed trainee nor do they complete observation reports on individual performance (as per G.O. 210.05).  Article 62 is not applicable to the instructor function and was never intended to be so.

 

Article 62 was significantly redrafted during contract negotiations for the purpose of ad­dress­ing the issues outlined in paragraph four above.  The Police Bureau now intends to follow the provisions of this Article.  The practice to pay instructors a coaches premium dur­ing the period covered under the prior Labor Agreement does not apply in this situation.  As a result, this grievance is denied.

NEGOTIATED CHANGES IN COACH PAY UNDER THE 1999 AGREEMENT

On December 1, 1998, the Association sent the City initial proposals for changes in the Agreement.  Among the proposals was one to replace the language of what was then Article 63 with a single sentence read­ing “Employees will receive 10% premium pay for any pay period in which they are designated and serve as a coach for all or part of the pay period.”  The Employer’s initial proposals, submitted January 25, 1999, made no change to the existing language of then-Article 63, but added a paragraph reading “City will be proposing a more finite definition of coach.”  The parties did not discuss pro­posals for this Article in more detail until the end of April 1999, when they discussed the Association’s proposal.  On May 28, 1999, the parties exchanged outlines of settlement ideas.    ­The City’s outline discussing coach pay read:

City may be willing to agree for “regular” coach.  Substitute coach paid as now.  No coach pay for OT if no trainee.  PPA agrees that removal of employee as a “coach” discretionary and not subject to grievance procedure.

The Association suggested the language that is now Article 62, except that it referred to “employ­ees” instead of “officers.”

Attorney Will Aitchison, the Association’s spokesperson, testified the Association proposed a change in the compensation for coaches, in part, because of problems recruiting FTO’s.   He testified David Shaff, the City’s Employee Relations Manager and spokesperson, expressed two major concerns with the Association’s initial proposal.  First was paying sub­sti­tute coaches on days when they were not coaching.  To address that con­cern, the Association agreed to apply the prior compensation system to substitute coaches so they would receive coach pay only for the hours they were actually coaching.  Second, the City wanted language con­firm­ing its discretion to designate coaches.  Aitchison testified the City has always had that right, and the Association had no objection to that language.

Greg Pluchos, who was Association President at the time of these negotiations, testified the terms FTO and coach are not synonymous; that FTO’s coach in the field but coaching can occur anywhere within the Bureau.  He has coached since 1976.  He testified the parties discussed the Association’s belief that its proposal would help ease the difficulty recruiting coaches, and acknowledged this discussion related to FTO’s rather than other coaches.  He testified one reason the Association sought the distinction between designated coaches and substitute coaches is that it wanted the Bureau to look ahead and designate FTO’s who would actually be available rather than bounce trainees around among substitutes; however, comments to this effect do not appear in either party’s bargain­ing notes.  His recollection was that all of the discussion on this point revolved around FTO’s.  He believes Academy instructors are the equivalent of sub­sti­tute FTO’s, not desig­nated FTO’s, and thus are entitled to coach pay only for instructional hours.

According to both Aitchison and Pluchos, at no time in negotiations did the City indicate it sought to stop paying coach pay to Academy instructors.  In Aitchison’s view, the addition of the terms “certified” and “assigned a recruit” were not a more finite definition of coaches.  He testified the parties never discussed whether those terms were intended to limit the definition of a coach, nor whether inclusion of these terms would preclude pay­ment of coach pay to instructors or FTC’s.  He further testified the Association had not considered whether Academy instructors should continue to receive coach pay, but would have looked into it and made a bar­gain­ing decision if the City had proposed to stop paying them coach pay.

Shaff has been the City’s spokesperson in negotiations since 1994.  Until this grievance was filed, he was unaware anyone other than FTO’s had ever received coach pay.  He believed “FTO” and “coach” were synonymous.  As a result, he did not discuss either instructors or FTC’s in negotiating coach pay.  He had no recollection of being involved in discussions leading to Leon’s May 18 memo to Dolbey.

The personnel assisting Shaff in negotiations included three managers from the Bureau –Captain Dennis Merrill, Deputy Chief Mark Paresi, and Director of Fiscal Services Rita Drake.  Drake is responsible for money and timekeeping functions; the other two are involved in Bureau operations.  They did not testify.

Shaff testified the City sought to include the “certified” requirement because it wanted higher quality coaching.  His view is that addition of “certified” was the quid pro quo for agreeing to pay coaches for the entire pay period, by permitting the City to have higher quality coaching.  The proposal to pay coaches for the entire pay period was of concern to him because of the need at times to have substitutes for a day when the designated coach was unavailable; application of the prior compensation system for substitutes met this concern.  He testified he had not heard the rationale of discouraging the Bureau from bouncing recruits around, that this provision did not have that effect, and that he did not consider it a penalty.

Shaff testified the first sentence of Article 62.3 was added at the Association’s request, but the second sentence was already in the Agreement.  The first sentence of Article 62.1 was added at the City’s request because of other assignments where officers questioned the City’s discretion to change assignments.

In prior negotiations, the parties used interest based bargaining.  The Association asked to use tra­di­tional bargaining in 1999.  In that milieu, Shaff testified he would expect any party that wanted to change either contract language or a past practice that was a mandatory subject of bargaining to present a written proposal to that effect.  In either traditional or interest based bar­gain­ing, he acknowledged any agreed-upon change would have to be reflected in writing to be part of the contract.

Shaff testified lieutenants have not been given authority as bargaining agents by the City Council, and therefore do not have the authority to authorize payment of coach pay.  They approve requests for pre­mium pay such as those involved here.  Those requests then go to payroll personnel, who review the requests and determine whether they should be paid.  In his view, the only way a pay practice that was not part of the Agreement could become binding would be if he negotiated a Memorandum of Agreement with the Association and submitted it to the City Council for approval.  Absent that process, in his view, a past prac­tice between the Bureau and the Association would not be binding.

In preparation for a rat­ification vote the Association posted and distributed to members a summary of changes to the Agreement.  The description of the coach pay provision read:

Entire article rewritten.  Only substantive change from current practice is that coaches will receive a 10% premium for any pay period in which they are designated as and serve as a certified coach with a trainee for all or part of the pay period.

The contract was ratified by Association members, and the City Council approved it on April 12, 2000.

POSITION OF THE ASSOCIATION

Article 62 is not clear and unambiguous.  Plausible arguments can be made for conflicting inter­pre­tations.  The Arbitrator may use parol evidence to determine whether the contract is ambiguous.  The contract language must be read in light of the parties’ practices and actions.  Parol evidence may be used to demonstrate a latent ambiguity.

The principal ambiguity is the meaning of “coach,” which is not defined in the Agreement.  The long-standing practice of paying coach pay to instructors and FTC’s shows “coach” is not equated with “FTO.”  Acting Lieutenant Tellis equated coach with FTO, but also testified FTC’s and instructors receive coach pay.  Aitchison explained “coach” is a broader term than “FTO.”  This ambiguity is highlighted by the fact that the parties do not use “Field Training Officer” or “FTO” in the Agreement, and the City does not use “coach” in its General Orders or forms concerning training of recruits.  The City’s failure to write its orders in the language of the Agreement, or to amend the Agreement to conform to its Orders, establishes Article 62 is ambiguous.  A plausible argument can be made that “coach” is not limited to “FTO.”

Section 62.1 refers to a “certified coach.”  However, there is no provision under Bureau policy for certifying “coaches.”  There is a provision for certifying FTO’s.  The meaning of “certified coach” cannot be determined on the face of the Agreement, or even on the face of the Agreement and the Bureau’s General Orders.  Therefore, the Agreement is ambiguous.

Section 62.1 refers to a person who serves as a “certified coach with an assigned trainee;” Section 62.2 refers to substitute coaches who receive premium pay when they are “coaching a trainee;” and Section 62.3 refers to a coach who “works with a trainee.”  Based on the Agreement alone, there is no way to deter­mine whether officers who are with an assigned trainee, coaching a trainee, or working with a trainee are all performing the same function.  Section 62.1 provides for a flat 10% premium for the pay period; Section 62.2 includes provisions for “substitute coaches.”  It is not clear whether Section 62.3's provision regarding operational overtime is redundant to the provision for a flat 10% premium.

Section 62.1 gives coach pay if officers serve as a certified coach “with an assigned trainee...” and Section 62.2 gives coach pay if substitute coaches are “coaching a trainee.”  The Agreement is ambiguous as to whether an officer who is working with more than one trainee would be eligible for coach pay.  Although Section 62.1 refers to a coach being assigned to a “trainee,” the Bureau’s policies expressly provide that an FTO may be assigned “a maximum of two Phase V recruits at any given time.”  This heightens the ambiguity of Section 62.1, as well as impeaching the City’s claim that FTO’s are different from instructors because FTO’s are assigned a single recruit.  The terms “certi­fied coach,” “substitute coach,” and “trainee” are ambiguous in that their meaning is not readily appar­ent from the Agreement itself.  The meaning of these terms, and thus of Article 62, cannot be ascertained solely from the Agreement.

Reliance on past practice in interpreting this contract is clearly appropriate given the parties’ agree­ment to maintain exist­ing standards concerning wages, hours and working conditions.  The City’s practice meets the requirements for a binding past practice, and reveals the appropriate interpretation of Article 62.  The City regularly and consistently paid instructors coach pay from 1990 to 2000.  This is sufficient longev­ity to establish a binding practice.  The practice was repeated every time there was an Ad­vanced Academy, approximately twice a year (three in recent years).  Instructors routinely applied for and received coach pay.  The City did not rebut the testimony regarding the duration, scope and consistency of this practice.  It offered no evidence it denied even one instructor’s request for coach pay in those ten years.  The longevity and repe­ti­tion of the practice strongly suggests the practice was acceptable to both par­ties.  Acceptability is further demonstrated by the use of an official Bureau form to submit requests for coach pay.  The instructor’s immediate supervisor signed the form; a supervisor outside the bargaining unit signed the form; and the City routinely paid coach pay.  These facts establish this practice was known to, and accepted by, the City.

Both bargaining teams included experienced spokespersons.  Neither party proposed to end coach pay for instructors, or even discussed this practice.  The language regarding coach pay was amended.  It is well established that a party that wishes to change an exist­ing past practice regarding a mandatory subject of bargaining must raise the issue in negotiations.  Although a binding past practice may be terminated in negotiations, it may not be terminated by silence.  If the practice is not repudiated during negotiations, it may fairly be concluded the contract was entered into on the assumption the practice would continue in force.

To end a past practice, an employer must advise the union in negotiations that it will no longer con­sent to continuation of the practice.  The union then must get the practice written into the con­tract if it wants it continued.  The City’s failure to repudiate the practice, or even discuss it at the table, is fatal to its conten­tion that the language change demonstrates the parties’ intent to end the prac­tice.  This conclusion is also dictated by the fact that the practice continued even though neither party incorporated it into the written contract and the parties amended the coach pay provision previously.  The 1994-96 Agreement was sub­stan­tially amended from the prior Agreement, without enshrining the practice in the new language, and the practice continued unchanged.  This confirms the practice was not termi­nated in the 1999 negotiations.

Aitchison and Shaff both would expect to propose language in bargaining to change a past practice involving a mandatory subject of bargaining.  The language change does not evidence the parties’ intent to exclude instructors from coach pay.  None of the witnesses on bargaining history de­clared that either party intended to end the practice.  Shaff described the Association’s expressed intent as providing an in­centive for more officers to become coaches.  The fact that provisions regarding instructors were not added has no signif­icance given that instructors were not mentioned in the prior three Agreements under which they re­ceived coach pay.  Although prior Agreements required that employees be “designed as a coach,” there is no evi­dence instructors were designated as coaches as a condition of receiving coach pay.  Although the pro­visions for designation and certification were amended in 1999, the City’s failure to desig­nate instructors as coaches under the prior Agreements renders such changes irrelevant.  Shaff conceded there were no lim­itations on the City’s ability to appoint or remove coaches under the 1996-99 Agreement.

Since neither party proposed ending coach pay for instructors, the mere fact that agreement was reached to amend Article 62 in response to other issues and concerns raised at the table does not support the City’s position that the grievance must be denied as a result of the change in language.  If the City wants to change or end the practice, it must be done in the straightforward and open manner described by Shaff and by arbitrators in other cases.  The 10-year practice survived the 1999 negotiations.

Alternatively, if the Arbitrator finds Article 62 is clear and unambiguous, the practice of paying coach pay to instructors modifies the Agreement.  The practice is clear, mutual, intentional, and readily as­cer­tainable.  The City consistently paid instructors coach pay for time spent teaching at academies.  The practice is unequivocal, and modifies the contractual provision.

Contrary to Shaff’s testimony, binding past practices may arise even without approval by the City’s spokesperson.  This practice was not the creation of a secret cabal of Lieutenants; it was known throughout the Bureau.  None of the authority on creation of binding past practices suggests such practices must receive the approval of a party’s bargaining table spokesperson to become binding.

Article 62 should not be construed against the Association as the author of the language.  This rule of construction is a “rule of last resort,” and should not be applied.  The City was not misled in negotiations, the parties had relatively equal bargaining power, and the ultimate agreement differed substantially from the Association’s initial proposal.

The City should not be allowed to pick and choose practices to honor.  It has not consistently applied the standards currently contained in Section 62.1.  The FTC has received coach pay since 1989, even though he is not assigned a trainee.  The City continues to pay two FTC’s coach pay, which refutes its argu­ment that only those who are certified and assigned a trainee may receive coach pay.  The City is picking and choosing which past practices to honor and which to reject.  This selective reading of the Agreement and the City’s obligations is not founded on principle and highlights the weakness of the City’s position.

The City offered no evidence that the rest of the 1999 bargaining team was ignorant of the practice.  The team included two managers representing Bureau operations and the Bureau’s Fiscal Service Manager.  Given the use of official forms for requesting coach pay, Drake un­doubt­edly was aware of the practice.  The City offered no evidence the other mem­bers of its bargaining team were unavailable to testify.  Its failure to call those members, particularly Drake, notwithstanding its reservation of the right to call additional wit­nesses at the close of the one day hearing, gives rise to a strong inference they would have testified they were aware of the practice.  Further, no arbitral precedent supports the notion that a party may terminate past prac­tices by selecting a bargaining team that is ignorant of these practices.  The City’s argument would endorse a bargaining strategy of allowing a bargaining team to sit silently at the table, then once the contract is signed claim ignorance of a past practice and unilaterally end it without ever bargaining the issue.  It would put a premium on sending clueless representatives to the bargaining table.

The grievance should be sustained, and the City ordered to pay all instructors coach pay for time spent instructing since April 13, 2000, plus interest.

POSITION OF THE CITY

Oregon courts construe collective bargaining agreements using the same rules developed for com­mon-law contract interpretation.  The parties’ objective intent is the arbitrator’s polestar.  Courts look first at the text and context of the agreement as a whole.  If the language is clear and unambiguous, the analysis ends and the court enforces the contract terms.  If the language is ambiguous, the court looks at extrinsic evidence such as bargaining history and past practice.  A contract is ambiguous only when conflicting inter­pre­tations result from plausible contentions.  If the ambiguity cannot be resolved through extrinsic evidence, the court applies maxims of contract construction as a last resort.  Here, the Arbitrator need look no further than the contract language.

Article 62 is clear and unambiguous.  Instructors are not coaches.  Within the Bureau, coach is syn­on­y­mous with FTO.  Members use the terms interchangeably.  Academy instructors are not called coaches.  Even without that context, Article 62.1 contains its own criteria for defining who is a coach, which excludes all but FTO’s.  Coaches must be designated as a coach, certified as a coach, and assigned a trainee.  Academy instructors do not meet those criteria.  The Bureau has not designated them as a group of coaches; its discretion in this regard is not grievable, and the Arbitrator could conclude this grievance is not substantively arbitrable for that reason.  They are not required to be certified in the disciplines they teach.  They are not as­signed a train­ee.  The parties’ use of the singular in reference to trainees suggests the parties did not envi­sion a class­room setting with an instructor responsible for multiple trainees.  Coaching is a one-to-one relationship, except in Phase V.  Academy instructors are not assigned individual recruits.  They teach in controlled class­room settings averaging 12 recruits.  The criteria of Article 62.1 are cumulative; instructors must meet all three requirements during a pay period to receive coach pay.  Since they cannot satisfy all three criteria, they are not entitled to coach pay under Article 62.1.

Instructors are not substitute coaches under Article 62.2.  Pluchos’ testimony to this effect is intern­ally inconsistent, contradicts Aitchison’s testimony, and contravenes the ordinary meaning of the word “substitute.”  He admitted discussion of substitutes occurred solely in the context of field training, i.e., what would happen when the regularly assigned FTO was unavailable.  Aitchison’s testimony reflects the same un­der­standing.  Substitute coaches do not have to meet the Article 62.1 criteria for coaches, but Academy in­structors do not fill in for regularly assigned FTO’s.  While attending the Academy, recruits do not have an FTO assigned to them.  The common meaning of “substitute” is “one that takes the place of another; a re­placement.”  Substitute coaches fill in for the regularly assigned coach.  Academy instructors as a group do not substitute for coaches.  There is no reason for a substitute then because field training stops.  Moreover, substitute coaches receive premium pay only for time actually spent coaching.  Instructors do not “coach” trainees in the field; they teach in a controlled classroom setting.

Even if Article 62.2 is ambiguous, the bargaining history clearly reveals the parties intended coach pay to apply to substitute coaches w ho “fill in” when the regularly assigned coach is not available.  The City wanted to avoid paying two coaches premium pay for a pay period when the regularly assigned coach was un­available.  The parties developed the provision for substitute coaches to address that concern.  Since Academy instructors do not replace regularly assigned coaches, they are not entitled to substitute coach pay.

The Association’s undisclosed intent is not relevant.  The Association knew of the practice of paying coach pay to Academy instructors, but remained silent during negotiations.  It agreed to contract language that would exclude Academy instructors from continuing to receive that premium.

Past practice cannot contravene the clear intent of Article 62.  As a threshold matter, the Association failed to establish a binding past practice.  The length of time the practice has existed is only one factor.  The moving party must show the practice was unequivocal, clearly enunciated and acted upon, and accepted by both parties.  The Association’s evidence falls short of establishing the last element.  The Association estab­lished only that the Lieutenant of the Training Division agreed to pay coach pay to instructors.  Lieutenants are represented, and thus cannot meet the statutory definition of supervisory or managerial employees.  The Association failed to prove that anyone in a managerial or supervisory position knew of and acquiesced in the practice.  It did not present evidence that members of the City’s bargaining team knew about the practice.  It failed to controvert Shaff’s testimony that he was unaware of the practice.

None of the valid applications of past practice apply here.  Past practice may fill in missing contract language, but it cannot change express language.  Arbitrators have rejected the theory that a past practice cannot be eliminated without specifically and expressly negotiating that subject.  Where the parties bargain changes in contract language without discussing the consequences of those changes on past practice, the new language is enforced as written.

Article 3 contemplates past practices can be eliminated through bargaining.  The parties modified Article 62 through collective bargaining and adopted new standards for coach pay.  Those standards effec­tively eliminate Academy instructors from being eligible for coach pay.  Assuming arguendo that the changes did not eliminate the practice of paying instructors coach pay, the grievance is fatally flawed be­cause it failed to cite the appropriate contract article violated.  For the practice to continue, it would have to exist independent of Article 62, since instructors clearly are not entitled to coach pay under the current con­trac­tual criteria.  The practice of paying coach pay to instructors qualifies as a “standard of employment” under Article 3.  However, the Agreement requires the grieving party to identify with specificity the contract provision(s) allegedly violated.  If the parties did not eliminate the practice through bargaining, and the Bureau subsequently discontinued the practice, the Association’s only recourse would be under Article 3.  The grievance asserts only that the Bureau violated Article 62.   That omission is fatal to the grievance.

Because Article 62 is not ambiguous, past practice, like bargaining history, is irrelevant.  If the Arbitrator found some provision in Article 62 was ambiguous, past practice would not aid the Association.  The practice arose and continued under different Agreements in which the only contractual criterion for coach pay was that the officer had to be designated a coach.  Arguably, if the Bureau paid instructors coach pay under those contracts, the Association might posit that the Bureau “designated” instructors as coaches.  The parties significantly changed the criteria in the current Agreement.  The Bureau must not only designate coaches; they must also be certified and assigned a trainee.  Because the criteria changed, the past practice is irrelevant.  The parties significantly revised Article 62; the grievance arose less than two months later.

The parties did not amend the Agreement consistent with the past practice.  The changes negotiated are inconsistent with the past practice of paying Academy instructors coach pay.

OPINION

PRELIMINARY MATTERS

The Association bears the burden of persuasion as the moving party in this contract arbitration case.  The applicable standards for contract interpretation are well established.  Where the language is clear and unambiguous, the Arbitrator must give effect to the parties' intent.  That is so even where one party finds the result unexpected or harsh.  In determining whether the language is clear, words are given their ordinary and popularly accepted mean­ing, absent evidence they were used in a different sense.  Terms that have a special­ized meaning, either in the industry or as used by the parties, ­will be given that meaning.

Where contract language is unclear or ambiguous, the Arbitrator may look to extrinsic evidence of the parties' intent.  Such evidence includes bargaining history, contemporaneous statements regarding the agree­ment reached, practice in implementing the contract, and post-contract clarifications and modifica­tions.  Bargaining history is significant where either the evolution of language or the parties' statements at the bar­gain­ing table demonstrate the intent behind particular provisions.  A party's unexpressed intent in nego­ti­at­ing a contract is of no import in interpreting the language.  The Arbitrator must avoid interpreting ambiguous language to nullify or render meaningless any part of the Agreement if another reasonable interpretation gives effect to all provisions.  If two plausible inter­pre­tations exist, the Arbitrator must prefer that inter­pre­tation which avoids harsh, absurd, or nonsensical re­sults.   Any ambiguity not removed by other rules of interpretation may be removed by construing the am­big­uous language against its proponent.

Extrinsic evidence such as past practice generally cannot be used to override clear contract language.  However, it can be used to demonstrate a latent ambiguity in the language, to show that the parties in­tended a specialized meaning in using certain terms, or to show that the parties later agreed to modify their agree­ment.  The party asserting one of these exceptions bears the burden of demon­strat­ing the existence of the exception.  Where past practice is introduced to demonstrate a latent ambiguity or a specialized meaning in what appears to be clear contract language, the question is not whether the practice is “binding,” but rather whether it aids in determining whether the language is ambiguous or clear.  Beyond that use, a split of opinion exists among arbitrators regarding the circumstances in which a past practice can be binding.  The Arbitrator’s view is that past practice can be binding where the contract language is ambig­uous or where it is clear.  However, the quantum of proof necessary to establish a binding past practice is considerably greater where the contract language is clear.  The reason for this difference is clear when one considers the logical underpinnings of the concept of past practice.

Past prac­tice is persuasive in interpreting ambig­uous language where the practice is clear, consistent, and known to both parties.  In this setting, past prac­tice serves as an aid in illuminating the parties’ intent.  How­ever, no illumination is required where the contract language is clear.  Instead, where the language is clear and unambiguous, a practice can over­ride that clear language only if it demonstrates an equally clear and unambiguous agreement by the parties to modify the written contract–i.e., if it is the func­tional equiva­lent of an amendment to the contract.  The conduct necessary to modify clear contract language must be un­e­quivocal, and the terms of the modification must be clear, mutual, intentional, and readily ascer­tainable through a fixed practice over a reasonable period of time.

It is more likely that a binding past practice will be found to exist where it involves a benefit (e.g., wages or bonuses) rather than a core operational function (e.g., production methods).  Aware­ness of a practice may be presumed from its long-established and widespread nature.  A course of conduct which arose out of con­ven­ience or personal preference, or was unilaterally im­ple­­mented without discussion or acqui­es­cence, is insufficient to modify clear contract language.  Where a course of conduct is not con­tro­versial, or when it benefits both parties, no agreement to be bound by it rather than by clear contract language can be implied.  This is so even when employees have come to expect it.

THE MERITS

Initially, the City argues the grievance is not arbitrable, either because Article 62.1 leaves it to the City’s sole discretion to designate coaches or because the grievance arises under Article 3 rather than Article 62.  Those arguments were not raised in earlier steps.  As to the City’s discretion, the issue raised by the griev­ance is not whether the City im­prop­erly designated or failed to designate coaches; it is whether persons it assigned to instruct at the Academy are “coaches” within the meaning of Article 62.  ­The Agreement gives the City the discretion to designate coaches or remove that desig­na­tion; it does not grant the discretion not to pay coach pay to some “coaches.”  With regard to Article 3, one of the Association’s arguments regarding past practice relates to the meaning ­­of the word “coach.”  This argument goes to the heart of the inter­pre­ta­tion of Article 62.  Accordingly, the arbitra­bility objections are without merit.

A review of past Agreements reveals an ebb and flow in the compensation for coaching.  ­When Academy instructors first began receiving coach pay, coaches re­ceived eight hours’ pay for each payroll per­iod, or portion thereof, in which they were “designated as a coach.”  In a bi-weekly payroll period, eight hours’ pay would amount to a 10% premium.  In 1994, the parties changed the compen­sation structure so that coaches received a premium of .1 of their base pay rate for each hour they were “designated as a coach”–thus reducing coach pay except where a coach was desig­nated as such for an entire payroll period.  In 1999, the parties returned to a 10% premium for a full payroll period, but only for officers “designated as coach” who served as a cer­tified coach with an assigned trainee in that payroll period; they retained the hourly compensation structure for “substitute coaches.”  Through all of these changes, the parties never de­fined ­­“coach” in the Agreement.[3]  The meaning of that term therefore must be drawn from other sources.

FTO’s clearly fit within any reasonable definition of “coach,” and Bureau personnel rou­tinely refer to FTO’s as coaches.  However, that is a different question from the one posed by this grievance.  Had the parties meant to limit this premium to FTO’s, the unambiguous way to do so would have been to use that term, consistent with the terminology in the Bureau’s General Orders and Manual.  The fact that they chose a more general term lends some ambiguity to the term.  Other evidence further reveals the parties’ historic interpretation of the term has been broader than the exact equivalence to FTO now suggested by the City.

Chief among the indicia of the parties’ interpretation of the term “coach” is their practice under prior Agreements using this term.  Counsel for the City conceded the existence of the practice in opening state­ments.  The City now argues on brief that the Association failed to prove that anyone in a managerial or supervisory position knew of and acquiesced in the practice.  For the reasons that follow, however, the City’s change of heart on this point is not persuasive.

The evidence of past practice is significant in analyzing whether the parties interpreted “coach” to mean “FTO” or something broader.  The analysis on this point need not reach the question of whether the evi­dence of the practice would have been sufficient to amend clear contract language.  The practice illumi­nates the parties’ understanding of the undefined term “coach.”  The Association’s evidence raised a reasonable inference that Bureau man­a­gers were aware of and ap­proved the practice of paying coach pay to Academy instructors, and thus that they considered Academy instruction to be one form of “coaching.”

On this record, instructors’ eligi­bil­ity for coach pay was ­well known within the Bureau.  Although Tellis’ suggestion went to the Training Division Lieutenant, and subsequent sergeants and lieutenants ap­proved later coach pay claims, the claims also went through the normal payroll process.  Just as employees reasonably may be charged with knowledge of the rules, practices, and policies in the workplace, managers also may be charged with such knowledge absent evidence to the contrary.  While it is theoretically possible no manager in the operational or fiscal functions noticed these payments for ten years, that scenario is un­likely, particularly in view of the duration of the practice and the number of Academy instructors eligible to claim such payment over the years.  Specific evidence on this point was necessary to rebut this inference.

The City offered no testimony from any Bureau manager regarding the meaning ­of “coach.”  Instead, it initially asked the Association’s witnesses whether an FTO was a “coach.”  Rank-and-file officers’ collo­quial use of the term is of limited use in deter­mining the meaning of the term.  Aitchison and Pluchos, who were involved in negotiations, both testified “coach” was a broader concept than “FTO.”

Shaff’s testimony does not illuminate the meaning of “coach.”  He is not a Bureau manager, and thus could not be expected to be familiar with operational details.  An indicator of his distance from day-to-day operations is his testimony that he was not even part of the discussions that led to the Bureau’s decision to deny claims for coach pay from Academy instructors.  Detailed knowledge of operational matters was rep­re­sented at the bargaining table by the Bureau man­agers who assisted him, including Drake, who oversaw the timekeeping function.  Although the hearing was continued for the purpose of adducing testi­mony from other City witnesses, the City thereafter elected not to call further witnesses.  The inference raised by the Association’s evidence thus has not been dispelled; on the contrary, the decision not to call those managers raises an inference their testimony would have been adverse to the City’s position on this point.

For all the above reasons, it is concluded that for a decade the parties mutually understood the term “coach” to mean more than an “FTO,” and particularly to include Academy instructors (as well as FTC’s).  This broader working definition survived a change in language in 1994; instructors continued to receive coach pay.  The only remaining question is whether it also survived the 1999 language changes.

The bargaining history does not suggest the parties agreed to change the meaning histor­ically given to “coach.”  Although the Association proposed to augment coach pay, the City was the pro­ponent for a more “finite” definition of coach.  It did not inform the Association that part of this desire for “finite­ness” was a desire to limit coach pay to FTO’s.

The City’s desire for higher quality coaches was ad­dressed by requiring that the designated coach be “certified.”  The Bureau maintains a protocol for certifying FTO’s.  Certification also exists for some Academy subjects.  Thus, use of the term “certified” did not necessarily signify an FTO, although it cer­tainly included FTO’s.  Similarly, the “with an assigned trainee” language does not necessarily equate coaching to serving as an FTO.  On this record, even a certified FTO does not necessarily serve in that function during every payroll period.  Under the prior language, coaches received coach pay only for the hours they were designated as a coach or the overtime hours worked with a trainee.  The new language, on its face, clarifies that a certified coach will only receive coach pay for a payroll period if the Bureau makes use of that certification by having them perform the work of a coach in that payroll period.

For all the above reasons, it is concluded that, in changing the language, the parties did not explicitly limit the defi­ni­tion of “coach” to FTO’s.  The structure of Article 62 as a whole leads to the con­clusion that they also did not do so implicitly.  For example, an Article 62.2 substitute coach need not meet the Article 62.1 “certified” cri­terion.  The City correctly points out that Academy instructors do not substitute for FTO’s.  However, ­­Article 62 does not specify that the substitute coach must be substituting for an FTO.

On this record, the Association did not seek an unbargained benefit by premising its coach pay pro­posal on the difficulty of recruiting FTO’s, while omitting any mention of Academy instructors.  Academy in­structors, like FTO’s and FTC’s, were already receiving coach pay.  The parties did not discuss a change in the mean­ing of the term “coach,” a term that had taken on a specialized meaning a decade earlier.  They merely discussed a change in compensation for some coaches.  The ambiguity they left in so doing cannot be laid at the feet of either party.

For all the above reasons, it is concluded that the City breached Article 62 as alleged in the grievance.  It must therefore make Academy instructors whole for the coach pay they were denied.  The matter will be remanded to the parties for calculation of the sum due each instructor.

The Association seeks an award of interest.  Interest has not historically been awarded in arbitration absent extraordinary circumstances.  No such circumstances have been shown here.

Finally, as agreed by the parties, the Arbitrator will remand the matter to the parties so that they may attempt to reach agreement as to which party is the “losing party,” but retains jurisdiction over the Remedy portion of the Award and any dispute arising therefrom.

AWARD

The City violated Article 62 of the Agreement as alleged in the grievance.  As a remedy, it shall make whole officers who served as Academy instructors and submitted claims for coach pay.  The matter is remanded to the parties for the purpose of calculating the make-whole remedy, as well as to reach agreement as to which party is the “losing party.”  The Arbitrator retains jurisdiction over the Remedy portion of this Award and any dispute arising therefrom.

                                                                           

      LUELLA E. NELSON - Arbitrator


[1]           At the close of one day of hearing, the City expressed an intention to call further witnesses unless it could reach stipulations with the Association, and a date was set for that purpose.  Thereafter, the City notified the Arbitrator that it did not intend to call further witnesses.

[2]           In its brief, the City proposes the following issue:

Under Article 62.1, an officer is a “coach” and entitled to premium pay when three criteria are met: the officer must be designated by the Bureau as a coach, certified as a coach; and assigned a trainee for all or part of a pay period.  Advanced Academy instructors do not work in the field, are not designated as coaches, are not certified as coaches and, most importantly, are not assigned individual recruits.  Since the Academy instructors fail to meet the contractual criteria, are they entitled to coaches pay under Article 62 of the collective bargaining agreement?

[3]           Although the City places some emphasis on FTOs’ use of DOR’s, nothing in the language refers to such paperwork, or other matters limited to the FTO role, as a criterion.

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