of Lansing and Light
Operators Division of the Fraternal Order of Police Capitol City Lodge #141
MEDIATION AND CONCILIATION SERVICE
LABOR ARBITRATION TRIBUNAL
of Lansing, MI (Employer)
FMCS Case No. 06-58541
Operators Division of the
OPINION AND AWARD
grievance arbitration hearing for the above captioned grievance was conducted on
November 7, 2006, at the City of Lansing Police Department before Arbitrator Steven B. Stratton.
The Lodge was represented by Steven
T. Lett, Esq. The Employer was
represented by Susan Graham, Labor
Relations Manager. Each party
had the opportunity to present evidence and to examine and cross-examine
witnesses. The hearing was closed
December 12, 2006, upon receipt of written post-hearing briefs which were
simultaneously exchanged by the arbitrator.
Both parties put forth thoughtful arguments which have been carefully
considered by the arbitrator even though every detail will not be re-stated in
the following Opinion and Award.
Employer and the Lodge are parties to a collective bargaining agreement dated
January 1, 2004 through December 31, 2007 (Joint Exhibit 2). The Lodge represents employees of the City of Lansing Police
Department in the classification of “Emergency Communication Technician”
(ECT). Laura Walters
(Grievant) has worked for the Employer for over nineteen (19) years.
She is classified as ECT II.
was scheduled to work May 29, 2006, which is the Memorial Day recognized holiday
pursuant to Article 14, Section 5. She
reported at her scheduled time of 11:00 p.m. (2300) and worked until 7:00 a.m.
(0700). Walters received eight (8)
hours holiday pay plus time and one-half for the eight hour shift.
The parties agree she was properly compensated for that work period.
returned to work at 3:00 p.m. (1500) and worked until 7:00 p.m. (1900). She was
compensated for this four (4) hour period at time and one-half.
Therein lies the dispute. Walters
requested to be compensated at the double time rate for the four hours.
The request was denied and a grievance was filed (Joint Exhibit 1).
The grievance was processed to the arbitration step of the grievance
procedure and since there are no procedural arguments, is properly before the
arbitrator for disposition.
Did the Employer violate the collective bargaining agreement by refusing
to pay Laura Walters at the double time rate for the hours worked from 3:00 p.m.
(1500 hours) until 7:00 p.m. (1900 hours) on the Memorial Day holiday?
If so, what shall be the remedy?
OF THE FACTS
Grievant testified that she had been scheduled and worked both the eight hour
shift and the four hour overtime shift on the Memorial Day holiday.
She filed the grievance after being denied double time for the four hour
witness Barb Mottin is also an ECT II. She
testified that two grievances had been settled in the past which led to a memo
dated September 16, 2003. The
grievances were not entered into the record.
The memo was included as the fourth page of Joint Exhibit 1.
It was authored by Bruce Gaukel who did not testify.
Mottin stated that Walters should be entitled to double time for the four
overtime hours worked during the 1900 to 1900 work day.
witness Jacquelyn Beeson retired as an ECT II.
She was the president of the bargaining unit from 2003 to 2005.
Beeson was a member of the Lodge’s bargaining committee for the current
collective bargaining agreement. Her
testimony supported the position of the Lodge.
Phelps also testified on behalf of the Lodge.
She is the current president.
witness Karen Chadwick has been the 911 Director for over four years and prior
to that served as the Deputy Director for a similar period of time.
She testified that the Memo merely defines a “timekeeping day” not
the “work day” as the Lodge contends. She
acknowledged that a “work shift” is different than a “work day”.
Chadwick stated that the Memo had nothing to do with holidays when it was
created and that no employee had received double time under these circumstances
at least since 1999. No documentary evidence was offered to verify the payments to
similarly situated employees. Chadwick
testified that no grievances had been filed with a claim similar to the instant
witness Pat Relyea has been a supervisor for over 6 years.
She was the person who denied the request of the Grievant.
She testified that she was the author of the phrase “overtime in
conjunction with” which replaced the word “beyond” and resulted
in a Memorandum of Understanding between the Lodge and the Employer.
She was a member of the bargaining unit and the Lodge President at the
time. Employer 4 is the resultant
agreement and was subsequently incorporated into the collective bargaining
agreement. She signed it as the
Lodge President. Relyea explained
her understanding that the intent of the change was to limit eligibility for the
double time to overtime work performed immediately before and immediately after
the employee’s regularly scheduled shift.
Relyea stated that the language hasn’t changed since its inception in
1999. During her investigation of
the grievance she found no other grievances had been previously filed and the
Lodge did not provide her with any. She
acknowledged that a “timekeeping day” and a “work day” are synonymous.
Relyea verified that the Grievant’s work day covered the 24-hour
period; 1900 to 1900. Finally,
Relyea testified that Walters would have received double time if she had
remained at work after 7:00 a.m. rather than have a break then return because it
would have been in conjunction with her regularly scheduled work day as she
witness Kim Miller is a communications supervisor. Prior to becoming supervisor she also was in ECT II.
She was on the bargaining committee when Employer Exhibit 4 was
incorporated into the collective bargaining agreement.
Miller supported the testimony of Relyea.
was no evidence offered since 1999, that any employee worked their regular shift
on a holiday, left and then returned to work overtime during their 24-hour work
period as did the Grievant.
18- Section 2, Step 5-
unresolved grievance may be submitted to arbitration by the Lodge.
Arbitration may be invoked by the Lodge by filing a written demand for
arbitration with the Federal Mediation and Conciliation Service and the City. Grievances appealed to arbitration shall be appealed within
thirty (30) calendar days of the date of the Appeal Board Hearing, unless a
greater period is agreed to by the parties, otherwise they shall not be eligible
for further appeal to arbitration. At
the hearing, the parties may present arguments and proofs pertaining to the
statement of the question, as well as to the merits.
arbitrator shall render his/her decision according to the following:
14- Section 5-
an employee is not regularly scheduled to work a holiday and works the holiday,
or if an employee is scheduled to work the holiday and works overtime in
conjunction with his/her scheduled work day, the employee shall be compensated
at the rate of two (2) times his/her regular hourly rate of pay for each hour so
POSITIONS OF THE PARTIES
Lodge maintains that the language of Article 14-Section 5, is clear and
unambiguous. If an arbitrator finds
that language is clear and unambiguous, the arbitrator should enforce the
normal, usual and clear meaning. It
references Webster's New World Dictionary, 2nd college edition, when
comparing the words "conjunction" and "consecutive".
The word “conjunction” has several meanings, the first being: a
joining together or being joined together; Union; association; combination. The second definition is: an
occurring together; coincidence.
The word “consecutive” is defined as: following
in order without interruption; successive as in for four consecutive days.
In order for the City to prevail in this case, the Lodge maintains that
the word "consecutive" should have been used rather than "conjunction"
at the time Employer Exhibit 4 was written and signed.
Lodge argues that the contract language is further strengthened by the memo
dated December 1, 1999, from director Charles Bauer (Employer Exhibit 5).
The Lodge believes that the pertinent part of that memo reads as follows-
is not to be confused with the provision bargained with the City by the
Fraternal Order of Police which provides for holiday overtime premium to be paid
for any overtime worked in conjunction with a holiday shift even if the overtime
work is in the previous timekeeping day or the following timekeeping day."
Lodge contends that the memo clearly states what the city's position is and the
plain language not only of the contract, but also the memo, indicates that
"any" overtime worked in conjunction with a holiday whether it
precedes the actual holiday or is post the actual holiday, entitles an employee
to the double time premium.
Employer argues that the Lodge must establish by a preponderance of the evidence
that the Employer violated the collective bargaining agreement.
With respect to interpretation of the language, the Employer maintains
that the arbitrator should ascertain and give effect to the mutual intent of the
parties. Additionally, when the
parties settle a grievance, the evidence of intent as to the meaning of the
provision should carry special weight.
Employer believes that the arbitrator should utilize a dictionary definition as
an aid in reaching his decision. Employer
defines "conjunction" as: the act or
instance of conjoining....occurrence together in time or space.
This definition is taken from Merriam-Webster's Collegiate Dictionary,
Employer maintains that the intent of Employer Exhibit 4 was clearly described
by the testimony of Relyea and Miller. Making
the same argument as the Lodge, the Employer urges the arbitrator to adopt the
plain meaning of the words "in conjunction with".
emphasis by the arbitrator is underlined hereinafter. Language is considered ambiguous if plausible contentions can
be made for conflicting interpretations (County of Ottawa, 112 LA 104).
If the words are plain and clear, the arbitrator will generally apply the
clear meaning (Elkouri and Elkouri, How Arbitration Works, Fifth Edition,
p. 370). If the language is
determined to be ambiguous, the arbitrator must turn to reasonable methods to
ascertain the meaning of the language in question.
So, what have we here?
party believes the language is clear and unambiguous. Each party cites dictionary definitions to support its
respective case. There is
conflicting testimony in regards to the meaning of the key phrase.
A careful reading of the documents in evidence reveals the following.
Current 911 Director Chadwick, in her grievance answer dated June 14,
2006, states "... that the employee would be paid double time for any
additional time worked only when it was continuous with the holiday
time." Ironically, the word continuous
is the word the Lodge argues should have been used when the original Memo of
Understanding was reached. Current Lodge Director Mottin writes in her undated letter
"Yes, the 4 hrs in question is not in conjunction to ECT Walters work
hours but it does fall in her work day..." (see Joint Exhibit 1,
page 3). Employer Exhibit 5
authored by communications director Bauer states in part, "... which
provides for a holiday overtime premium to be paid for any overtime worked in
conjunction with a holiday shift....”
conjunction, work hours, work day, holiday shift; all confusing to say the
least….but certainly not clear and unambiguous. Finally, your arbitrator is not able to determine a clear
meaning from a simple reading of the paragraph in question. My conclusion therefore, is that the language is ambiguous.
So let’s turn to some reasonable methods to determine the meaning.
grievance settlements -
The parties made mention of previous grievances that were settled yet; no such
grievances were entered into the record. Inclusion of the previous grievances may have been very
helpful to the arbitrator in assessing the original reason for the change in the
language and thus, to determine its meaning.
versus everyday usage -
The dictionary definitions were somewhat helpful but did not dispose of the
matter. To this arbitrator, the
phrase “in conjunction with” is not unlike the phrase “in
concert with” meaning that some items are joined together, or in other
words, you can’t have one without the other. A good (and perhaps
unintentional) example of the everyday usage of the language was contained in
the written brief filed by the Lodge. At
page 2 of the brief, counsel points out that the contract language contained in
Article 14, Section 5 must be "read in conjunction with Employer Exhibit
5". In other words, you
can’t read one without the other. That
appears to the arbitrator to be a common usage of the phrase “in
Original Memorandum (Employer Exhibit 4)
- The memorandum became effective November 30, 1999.
Bauer's memo, Employer Exhibit 5, was published one day later on
December 1, 1999. The arbitrator
finds it significant that Director Bauer saw fit to issue a letter of
clarification merely one day after the parties had agreed upon a language
change. Bauer wrote, "The
timekeeping day is most often used to identify the beginning and end of
holidays and vacation slots." The
parties have agreed that Walters’ work day began at 1900 and ended 24 hours
later at 1900. The same time frame
also constituted her holiday time frame. Any
hours worked during that 24-hour period was during her scheduled work day and
during her holiday, including the four overtime hours in question, 1500 to 1900.
Author of the Language
- Relyea testified that she wrote the language and that the intent of the
original memorandum was to provide double time for an employee who worked
immediately prior to or immediately after the regular shift.
Unfortunately, that is not what the language says.
A standard rule of contract interpretation is that ambiguous language may
be construed against the party who drafted the language.
Enforcement of this rule is practical because it promotes careful
drafting of language and careful disclosure of what the drafter intends by the
language (Elkouri at pages 509, 510).
The almost immediate clarification by the Bauer memo underscores the
uncertainty of what the language meant. If
the language had stated “immediately before or immediately after the scheduled
work shift” as Relyea contends it was supposed to mean, the parties would not
be in arbitration.
is not intended as a slap against Relyea. The
most seasoned contract negotiators regularly author ambiguous language.
That is why arbitrators and the arbitration forum exist.
The Elkouri’s wrote-
no function of the labor-management arbitrator is more important than that of
interpreting the collective bargaining agreement.
The great bulk of arbitration cases involve disputes over rights under
such agreements. In these cases the
agreement itself is the point of concentration, and the function of the
arbitrator is to interpret and apply its provisions.”
(At page 470).
is the case here.
of Nonsensical Results
– When one interpretation would lead to a nonsensical result, while an
alternative interpretation would lead to a reasonable result, the latter
interpretation will be used. (Elkouri at page 495).
Two questions considered by your arbitrator were- Does it make sense
that an employee would receive double time for working overtime on the holiday
immediately after the shift but not receive double time for working overtime on
the holiday with a break in hours? What
if the break in hours had only been thirty minutes?
It doesn’t make sense to the arbitrator. I respectively disagree with Witness Chadwick that the
language change had nothing to do with holidays.
It has everything to do with holidays; it’s in the holiday section of
the collective bargaining agreement; it only applies to employees who work a
holiday and then work overtime on the same work day.
understand that in 24/7 operations such as the 911 Center, holidays will be
scheduled as a part of their regular schedule.
It is the overtime work on a holiday that is distinguished by the
language of the collective bargaining agreement. It’s quite common for parties to negotiate the payment of
an extra premium to compensate an employee for the inconvenience of having to
work overtime on a holiday. The
fact that the Grievant was able to go home after completion of her regular shift
does not negate the fact that she returned to work overtime on her current
scheduled work day as the language is written.
to simplify, the language of Article 14, Section 5, can be broken down as
an employee is scheduled to work the holiday
and works overtime in conjunction with his/her scheduled work day
since her work day didn’t end until 1900),
the employee shall be compensated at the rate of two (2) times his/her
regular rate of pay for each hour so worked.” (she
wasn’t). In other
words, the payment of double time is required when; 1) the employee is scheduled
to work the holiday, and 2) that is joined with the working of overtime on the
current scheduled work day.
grievance is granted. The Employer
violated the collective bargaining agreement by refusing to pay Laura Walters at
the double time rate for the hours worked from 3:00 p.m. (1500 hours) until 7:00
p.m. (1900 hours) on the Memorial Day holiday.
The Employer is directed to pay Grievant the difference between the
double time rate and the amount she received for the four (4) hours in question.