Title: City of Portland and Portland
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.
was held on November 20, 2001, in Portland, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
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.
behalf of the Association:
David A. Snyder, Esquire, 522 SW Fifth Avenue, Suite
1275, Portland, OR 97204
behalf of the City:
Lory Kraut, Esquire, Deputy City Attorney, City of
Portland, 1221 SW Fourth Avenue, Suite 430, Portland, OR 97204
parties were unable to agree on a statement of the issue or issues to be
decided. The Association would
formulate the issues as follows:
Did the City violate Article 62 of the 1999-2002 labor agreement by
failing and refusing to pay coaches pay to instructors teaching Academy
If so, what is the appropriate remedy?
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?
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)
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.
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.
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.
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;
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.
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.
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.
Coach’s pay shall not be pyramided on any other premium pay received
by the officer.
RELEVANT SECTIONS OF PRIOR AGREEMENTS
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.
[identical to Article 63 of 1996-99 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.
ARTICLE 58 – COACH PAY
[identical to Article 58 of 1991-94 Agreement]
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:
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.
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.”
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.
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.
OF THE PAST PRACTICE
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.
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
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.
Academy instructors received similar memos.
The Association responded with a May 26 grievance asserting the City
had violated Article 62 in the following manner:
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.
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.
Dennis Merrill provided a more detailed explanation in a Step II response, as
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.
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
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:
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.
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.
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.
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
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.
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.
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.
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
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.
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:
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
contract was ratified by Association members, and the City Council approved it
on April 12, 2000.
POSITION OF THE ASSOCIATION
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.
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.”
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.
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
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
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.
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.
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.
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.
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.
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 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.
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
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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
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 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.
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.
The meaning of that term therefore must be drawn from other sources.
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.
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.
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
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.
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
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.
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
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.
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
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.
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
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
Association seeks an award of interest. Interest
has not historically been awarded in arbitration absent extraordinary
circumstances. No such circumstances have been shown here.
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.
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
LUELLA E. NELSON - Arbitrator
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.
 In its brief, the City proposes the following issue:
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?
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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