Title: State of Ohio and Ohio
State Troopers Association
OPINION AND AWARD
In the matter of Arbitration
Ohio State Troopers Association, Inc.
State of Ohio, Department of Public Safety,
Number OCB# 15-00-000125-0017-04-01
This matter was presented to
the Arbitrator by briefs only, in lieu of a hearing.
The briefs were submitted by the mutually agreed deadline of December
issue agreed to by the parties was: “In
conformance with Article 20, Section 20.08 (8) of the Collective Bargaining
Agreement the parties submit the following statement of issue for resolution
by the arbitrator.
the Employer violate the Collective Bargaining Agreement by paying the
Grievant at straight rate for overtime worked in the same week that sick
leave was used?
The relevant sections of the Collective Bargaining Agreement are
27.01 and 27.02
Overtime and Compensatory Time
member who is in active pay status more than forty (40) hours in one week
shall be paid one and one-half (1.5) times his/her regular rate of pay
including shift differential if ordinarily paid for all time over forty (40)
hours in active pay status. The regular rate of pay includes all premium pay routinely
purposes of the Article, active pay status is defined as the conditions
under which an employee is eligible to receive pay, and includes, but is not
limited to, vacation leave, personal leave, compensatory time, bereavement
leave and administrative leave. Sick leave shall not be considered active
pay status for the purposes of this Article.
parties submitted factual stipulations regarding this matter along with
The stipulations include the
statement “this grievance
is properly before the Arbitrator.”
Arbitrator reviewed and considered all submissions in rendering this
two grievances in this case were filed when the grievants involved worked
federal overtime and in the same week also took sick leave. Management compensated the federal overtime at straight time
up to the level of sick leave taken.
The Union notes that the
time worked is “voluntary overtime” by title and definition.
In the Union’s brief they state: “The fact that these
programs, which provide a tremendous service to the motoring public, are
staffed strictly by overtime hours cannot be underscored.
It is the cornerstone of the Employer’s grant proposal.
It is the reason troopers and sergeants volunteer to work these
second point argued by the union is that the grant based costs on the
troopers overtime rate of $37.80
the Union asserts the Patrol selectively applies 27.02 by pointing out that
Court overtime as provided for in Article 51 is compensated at the time and
one half (1 ½) rate notwithstanding the use of sick leave.
the union argues that Article 48.01 (A) supports their position in the
definition of “active pay status.”
believes the matter is very clear. Prior
to 1997 the Collective Bargaining Agreement included sick leave under the
definition of “Active Pay Status.”
In 1997 the language was changed to exclude “sick leave.”
The second argument of
management is to note that the rate of pay for federally funded overtime is
governed by the Labor Agreement. In
their brief the employer states: “Nothing in the federal grant
documents directs the rate at which the Employer is to pay its employees for
federally funded enforcement hours. However,
it is quite clear that the Employer is bound by the terms of the mutually
negotiated labor agreement when it reimburses the employees for any hours
worked, including those that are federally funded.”
Arbitrator Rhonda Rivera, in
a case involving the Ohio Department of Natural Resources makes the
observation: “The task of an Arbitrator is to apply the words of the
Contract. If the words are clear and unambiguous on their face, the
interpretation consistent with that clarity and unambiguity is accepted”.
question in the instant cases is whether the language is clear and
An examination of section 27.02 appears, on the surface to be clear.
Previous contracts included sick leave as part of the bank of hours
to be considered in reaching the forty (40) hour threshold for time and one
half (1 ½) computations. The 1997 Contract added the words: “Sick leave shall not
be considered active pay status for the purposes of this Article.”
must then turn to the union arguments to see if any of them are persuasive
in creating ambiguity surrounding the new language added in this section.
Article 48 – Sick Leave, section 48.01 (A) states: “ ‘Active
pay status’ means the condition under which an employee is eligible to
receive pay, and includes, but is not limited to, vacation leave, sick
leave, bereavement leave, administrative leave and personal leave.”
union would assert that this language flies in the face of the reference to
active pay status in Article 27.
This Arbitrator does not read the contract in the same way.
Article 48 sets the standards by which members of the bargaining unit
will be paid. Absent such
reference employees might lack authority for payment while taking legitimate
the language in 27.02 specifically limits itself to application within that
article (Overtime). The wording
is specific when it states: “sick leave shall not be considered active
pay status for the purposes of this Article (emphasis added)”
a sociis is an accepted
axiom of contract interpretation that construction is viewed in light of the
context of the words.
Pribble, in the Dresser-Rand Co. case explains his view in reading contract
language in context: “This rule is to determine from the instrument(s) as
a whole the true intent of the Parties and to interpret the meaning of a
questioned work or part with regard to the context in which it is used, the
subject matter and its relation to all other parts
or provisions, and to apply it accordingly. This Arbitrator does not try to
apply what in his perception is fair or just, except to the extent that
fairness or justice results from applying the intent of the Parties. “ 
Even if the
language in Section 27.01 and Section 48.01 (A) was in conflict, this
Arbitrator would opt for the language that was most recently changed.
In this case, the addition of the exclusion of sick leave in
determining overtime payment.
Article 51.02 (B) provides: “Employees appearing in a court orf
other official proceedings based on any action arising out of their
employment during their off duty hours shall be guaranteed a minimum of
three (3) hours at one and one half (1 ½ ) times their regular rate or
their actual hours worked, whichever is greater…..”
Union argues that the employer does not apply the provisions of Section
27.02 in this case (Court leave) and thus they should not apply it in the
case of federal overtime.
contract will not permit the employer to pay court overtime at straight time
because of the clear provisions of Article 51.
specific reference governs over the general provision of Article 27.02
Sembower effectively stated a primary rule of contract interpretation in ARB
77-2, p. 8368 by writing that there exists, "...a canon of contract
interpretation which is followed by the courts and arbitrators. This
provides that when there are two contract clauses which bear somewhat upon
the same subject, that clause which is addressed directly to the subject
matter involved prevails."
the Union argues that the purpose of the grant is to provide overtime
coverage of Ohio’s highways and the amount of money requested is at the
Trooper’s overtime rate.
methodology utilized by the state in requesting this Federal Grant is not
controlling on exactly how much each participant gets paid.
Union’s argument, if carried to its conclusion, could result in a
situation wherein the state requested an hourly amount less than that
specified in the contract. No
one would contend that bargaining unit members ought to be compensated at
less than their negotiated rate just because a grant was based on a lower
it is conceivable that the state could apply for a grant based on a straight
time rate. If bargaining unit
members work in excess of forty (40) hours consistent with the Collective
Bargaining Agreement, those members would still be compensated at their time
and one half rate (1 ½) even though the funding source might not provide
adequate money to pay all the costs to those members.
point raised by the Union that is most compelling to this Arbitrator is that
the Bargaining Unit Members worked the overtime with the expectation that
they would receive time and one half compensation (1 ½). This Arbitrator can understand that expectation but the job
of an arbitrator is to read and apply the language of the Contract entered
into by the parties, not to invoke the Arbitrators view of what the
agreement should be.
language of Article 27.02 is clear and unambiguous. Sick leave is not to be included in the determination of
forty hours worked for the purposes of computation of overtime.
Employer did not violate the Collective Bargaining Agreement by paying the
Grievant at straight rate for overtime worked in the same week that sick
leave was used
Grievances are denied.
is so ordered at London, Ohio this 14th. Day of January, 2002
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028