This Arbitration arises pursuant to Agreement between AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, LOCAL 1724 (“Union”), and CITY OF EUGENE (“City” or “Employer”), 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 September 22, 1999, in Eugene, 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 October 25, 1999.  The parties waived the 30-day time limit for preparation of this Opinion and Award.

APPEARANCES:

On behalf of the Union: 

Mr. Lou Sinniger, AFSCME Local 1724, 1174 Gateway Loop, Springfield, OR 97477

 

On behalf of the City: 

Sharon Rudnick, Esquire, Harrang Long Gary Rudnick P.C., 400 South Park Building, 101 E Broadway, Eugene, OR   97401

             ISSUE 

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

Did the City violate the collective bargaining agreement when it discontinued paid lunches at the airport? 

The City would formulate the issues as follows: 

1.                   Was the grievance timely? 

2.                   Did the City violate Article 17.3(e) when it exercised its right to change the work schedules of airport day shift workers, relieving them of the requirement that they work through lunch, and consequently no longer paying them for their 30-minute lunch period? 

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

1. Was the grievance timely? 

2. If the grievance was timely, shall it be sustained or denied; and, if sustained, what shall be the remedy?

   RELEVANT SECTIONS OF AGREEMENTS 

       AGREEMENT EFFECTIVE July 1, 1994 - June 30, 1998 

             Article 17

HOURS — OVERTIME 

17.1    DEFINITIONS

...

d. Full-time work days are defined as the eight (8) to ten (10) hour period beginning at the employee’s regularly scheduled start time.  Full-time employees work forty (40) hours per week.

...

17.3    WORK SCHEDULES

..

b. An eight (8) hour work schedule shall include two (2) fifteen (15) minute break periods, and a ten (10) hour work schedule shall include two (2) twenty (20) minute break periods, one before the meal period and one after; and a meal period at or near the mid-point of the work schedule.  Compensation for the meal period shall be in accordance with applicable law and this Agreement.

...

d. Employees who have a work schedule starting between the hours of 2:00 p.m. and 6:00 a.m. will work a continuous eight (8) hour work schedule (ten (10) hours if on a 4/10 work schedule) including a one-half (1/2) hour paid meal period. ....

 

       AGREEMENT EFFECTIVE July 1, 1998 - June 30, 2001

                 Article 4

  MANAGEMENT RIGHTS

 

4.1       The City shall retain the exclusive right to exercise the customary functions of management, including but not limited to, directing the activities of the department, determining the levels of service and methods of operation including ... the right ... to determine work schedules and assign work; and, any other such rights not specifically referred to in this Agreement.  The City shall not exercise its rights set forth above for the purpose of avoiding the terms of this Agreement. ...

 

             Article 13

             EXISTING BENEFITS/WORK RULES

 

13.1    Nothing in this Agreement is intended to nullify existing wage or other economic benefits to employees under current policies, practices, and work rules, unless specifically included in this contract.  To the extent that any proposed changes in work rules or working conditions consist of or affect mandatory subjects of bargaining, the City agrees to collectively bargain the mandatorily negotiable aspects of the change(s). 

13.2    Nothing in this Agreement is intended to restrict the right of the City to adopt, change, or modify reasonable work rules or procedures necessary for the safe, orderly, and efficient operation of City services....

 

             Article 17

HOURS — OVERTIME

 

17.1    DEFINITIONS

...

d. [same as in 1994-98 Agreement]

...

17.3    WORK SCHEDULES

...

b. The Union recognizes the City’s right to determine work schedules based on its assessment of operational requirements.  The City recognizes its obligation to avoid, where practicable, work schedule changes which result in expressed undue hardship to an affected employee. 

c. Work schedule changes of more than two (2) hours will normally be made only after five (5) days notice is given to the employees and the Union.  Such changes will be subject to consultation with the Union and employees upon request.  Work schedule changes of two (2) or less hours will normally be made only after thirty-six (36) hours notice is given to the employees.

...

e. Employees, except those on a ten (10) hour shift, shall be entitled to a fifteen (15) minute break period near the mid-point of every four (4) hours of work.  Employees shall be entitled to a meal period of at least thirty (30) minutes if more than five (5) hours of work is scheduled. ...

f. Employees who work a ten (10) hour work schedule will be entitled to a twenty (20) minute break period near the mid-point of every five (5) hours of work and a meal period at or near the mid-point of the work schedule.

...

17.8    SHIFT DIFFERENTIAL

As of October 1, 1998, employees who have a regular work schedule where the majority of the hours (one-half (1/2) or more of the scheduled hours) worked are between 5:00 p.m. and 6:00 a.m. will receive a shift differential of sixty-five cents (65¢) per hour for all hours worked in the shift. ....

 

             Article 35

        GRIEVANCE PROCEDURE

...

35.3    PROCEDURES

Grievances will be processed in the following manner and within the stated time limits.  The event must have occurred within the past fourteen (14) days or the employee should reasonably have had knowledge of the event for no longer than fourteen (14) days to be eligible for processing.

...

STEP 1

a. The employee will first attempt to informally resolve the issue with his/her immediate super­visor within fourteen (14) days from the occurrence of reasonable knowledge thereof. ...

...

c. If this attempt is not successful, the employee may submit within this time period a written notice to the supervisor and a copy to the Union, ....

....

                FACTS

Until August 1, 1990, employees at the airport worked a 10.5-hour shift, with a half hour unpaid lunch period.  Beginning August 1, 1990, they worked a 10-hour shift with a half-hour paid lunch.   Airport Division Manager Mike Boggs testified he found shortly after his arrival that employees lacked operational training and experience.  He decided the lack of training could be partly remedied by scheduling in re­dun­dancy while ramping up the training program.  ­He required all Airport workers to be avail­able during lunch to respond to emer­gen­cies and operational needs.  Each employee was required to carry a radio, stay on site, and respond immediately at all times other than breaks.  In 1992, and again in 1995, Boggs reviewed training and experience, but concluded redundancy remained necessary.  Employees had a paid lunch period during which they were expected to respond to work calls, regardless of whether they worked 8- or 10-hour shifts.

In 1992, five airport workers were certified in operations.  By the end of 1994, twelve had been certified, and that number grew to fourteen in 1998.  Boggs testified the new shift differential language caused him to look again at the day shift staffing in 1998.  He concluded he had enough trained airport workers to cover operational needs and emergencies by scheduling two employees to cover lunches.  By a memo dated September 25, 1998,^[1] Facilities and Operations Manager Robert Noble notified day shift workers ­of a change in their schedule, effective October 1.  The new schedule called for staggered half hour unpaid lunch periods Monday through Friday, and the total daily work schedule was therefore extended by half an hour on those days, to 8.5 hours.  Weekend and night shifts remained 8-hour shifts with paid lunch periods.  The memos to day shift workers read, in relevant part, as follows:

As you are probably already aware, part of the changes to the new AFSCME contract included the addition of Item 17.8 regarding shift differential and negotiations regarding the requirements of paid lunches.  The agreement was made that lunch periods would no longer be paid by the City unless there was an operational need.  At the airport our staffing needs require that we are able to respond to emergencies with an appropriate amount of personnel.  To accommodate this need and to meet the new non-paid lunch provision your new work schedule is as follows:

...

Scheduled shifts are based on all staff working their regular shifts.  In the event you are sched­uled for an unpaid lunch and staffing needs require you to assume operations response responsibilities, your lunch period will be paid and your shift will be shortened by thirty minutes. ....

Union Steward Wayne Sylliaasen discussed the pending change with Noble between September 25 and October 1, but was unable to dissuade Noble from making this change. This grievance followed on October 13, alleging as follows:

1) The Airport had a long standing practice to pay all day shift operations workers a paid lunch.  As of October 1, 1998 the Airport has required employees to have a non-paid lunch.  The day shift Airport workers have lost a substantial benefit. 

2) Before October 1, 1998 the employee’s [sic] were paid for the half hour lunch but were required to be at the ready, stay on site, and could be required to work during the lunch period without extra pay.  After October 1, 1998 the employees are no longer paid for their half hour lunch period nor are they required to be at the ready, to stay on site, nor to work without extra pay.  Only 2 employees are required to be at the ready during the lunch periods. 

The change in practice violates Article 13, Existing Benefits/Work Rules, Article 4, Management Rights, and other related sections of the current collective bargaining agreement.

3) For remedy we ask that the City make all employees whole in every way including pay for the half hour lunch and to rescind the change in practice.

On October 21, Noble clarified his earlier notice by informing employees that the shortened shift referred to in the last paragraph of the notice applied only if employees received adequate notice of a shift change; other­wise, their shift would remain unchanged and they would be paid overtime for all hours worked beyond their scheduled shift.

According to former Union President Judith Hines, the airport’s remote location precludes employees from going off premises to get lunch.  Employees testified that, prior to the change at issue, they effectively worked 7.5 hours but were paid for 8 hours.  The new schedule requires them to spend an additional 30 minutes at the airport each work day.  This results, inter alia, in higher child care costs.  During their lunch hour, employees no longer carry radios or answer the phone in the lunch area.  They testified the prior arrangement was more efficient because they could finish a project and take lunch whenever it was convenient; now they must take lunch at the assigned time.  Boggs testified this schedule change permits the City to schedule 27.5 additional hours of productive time weekly.

BARGAINING HISTORY

The language that is now Article 17.3(e) was added to the Agreement in 1985, the same year the Fair Labor Standards Act (FLSA) became applicable to local governments.  In 1998, the parties replaced the paid lunch provision for night shift employees, provided in former Section 17.3(d), with the current night shift dif­ferential in Section 17.8.  The issue of paid lunch periods for day shift workers was not raised in those negotiations.  According to Hines, the City’s negotiator commented there would be times when paid lunches would still happen.  Hines assumed this probably referred to airport employees because of the policy of paid lunches.  She testified she realized it would be up to the City to decide whether that was a benefit to the City.  However, she believed there would be no change in policy for day shift employees because those employees had not been discussed, and because the parties had been so specific about the time periods under discussion.

     POSITION OF THE CITY

TIMELINESS

The grievance was untimely.  Employees received notice of the change on September 25 to comply with the contractual requirement for notice of shift changes.  Sylliaasen discussed objections to the impending change with Noble before the effective date.  The Union initiated Step 1 in a timely way through the informal meeting between Sylliaasen and Noble.  However, it failed to perfect its Step 1 grievance by not filing a written grievance within 14 days after the September 25 notice of the shift change.

THE MERITS

The Union failed to prove the City violated the Agreement.  The Union misidentifies the City’s long-standing practice regarding payment for lunch periods.  As long as employees were required to stay on-site and be available to respond during their lunch periods, the City paid for their lunch breaks whether they were actually interrupted or not.  This was not because the City instituted a “paid lunch program;” it was because the City was required to pay for that time by law, and consequently by Article 17.3.  Under the FLSA, employees’ lunch periods were primarily for the City’s ben­e­fit, and there­fore were compensable.  The City continues to have some employees work a straight eight-hour shift, during which they are required to be on-site and available by radio during their lunch break.  In these circumstances, it continues to pay employees for the meal per­iods.  It also pays for meal periods if they are interrupted with work.  However, since October 1, employees have been completely relieved of duty during lunch, and therefore are not paid for that time.  This is consistent with the City’s practice of paying employees for meal periods when they are required to work during that time, and not paying them for their meal period when they are not required to work.

Article 13.1 cannot be read so narrowly as to require the City to continue to pay for lunch periods simply because it did so in the past.  This payment was not simply a benefit or part of compensation regard­less of whether employees worked during lunch.  The City paid employees for their lunch periods because they were required to work during the lunch period, thereby making that time compensable.  This is the past practice protected from unilateral change by Article 13.  The schedule change implemented on October 1 was consistent with this practice.  Employees suffered no change in any existing benefit.  They con­­tinue to be paid for meal periods when they are required to work during them, and they are not paid for meal periods when they are not required to work during them.  This was nothing more than a schedule change.

Under Article 17.3(e), the City was required to pay compensation for meal periods “in accordance with applicable law and this Agreement.”  The bargaining history suggests the Union’s concern in negoti­ating this language was to compensate employees held over past the scheduled end of their shift, not to tie Article 13 to compensation for meal periods.  Airport employees have consistently been paid or not paid for meal periods in accordance with applicable law.  Article 13 is the only provision of the Agreement that could possibly apply.  These employees continue to enjoy the same benefit regarding paid meal periods as they did before October 1: they are paid for meal periods when they are required to work during them.

     POSITION OF THE UNION

TIMELINESS

The City first raised timeliness at Step 1.  It did not raise it again until after arbitration was requested.  The Union filed the grievance twelve days after the effective date of the change.  The occurrence was not the date of the memo to employees.  No harm had come to employees on September 25.  The occurrence was when employees were harmed, on October 1.  Employees still had paid lunches from September 25-30.

If the Union had filed a grievance on September 26, the City would have rejected it because the event had not yet occurred.  If the memo had announced a disciplinary suspension effective October 1, any rea­son­able labor/management representative would have concluded the occurrence was October 1.  The time between the notice and the occurrence is of no consequence to affected employees.  The logic is the same here.  No harm or change occurred until October 1.  The Oregon Employment Relations Board (ERB) applies the same reasoning in determining timeliness of an unfair labor practice.

THE MERITS

Paid lunches for airport workers are an established practice.  Employees had every reason to believe the practice would continue unless changed through negotiations.  Newly-hired airport workers were told of the practice, and it was a benefit they considered in deciding whether to accept employment.  It had be­come an integral part of the Agreement.  The paid lunch period, in effect, increased employees’ hourly pay.  The parties recog­nized this in negotiating a shift differential in lieu of paid lunches for swing and graveyard shift workers.  It also was a benefit in that it took employees away from their private lives a half hour less each day.  The change permits the City to get more hours of work done in a week.

Article 13 recognizes that practices exist, and the expectation is that they will continue.  It allows mandatory subjects to be changed only through negotiations.  Instead, the City made a unilateral change.  Wages and hours are mandatory subjects of bargaining.  The City therefore was required to propose a change to the Union before implementation, regardless of whether the parties were in negotiations.

It is immaterial whether the airport no longer needs to have all employees on call during lunch.  Airport workers believe they had an agreement established by past practice which was unilaterally dissolved by the City.  The City had the opportunity to raise this issue in 1998 negotiations.  It successfully brought paid lunches for night shift employees to the table, resulting in a new shift differential clause.  The City now seeks to gain what it failed to bring forth at the bargaining table.  It exercised its rights for the purpose of avoiding the terms of the Agreement.  It was aware of the practice when it bargained the Agreement.  It should not be allowed to change the practice unilaterally after completing bargaining.

The effective date of the change is the same as the effective date of the new shift differential under Section 17.8.  Contrary to the memo to employees, paid lunches at night had nothing to do with paid lunches during the day.  The City had enough trained workers to move to unpaid lunches by 1994, but did not bring that information forward for negotiations in 1998.  The notice to employees is untruthful in suggesting this change is due to the “new non-paid lunch provisions.”

As a remedy, the Arbitrator should order the City to compensate employees for their half hour paid lunches at the overtime rate, and to return to the past practice of a paid lunch period.

       OPINION

TIMELINESS

Timeliness is an affirmative defense, as to which the burden of proof rests with the party asserting the grievance is untimely.  Contractual time limits are as enforceable as any other contractual provision.  Parties include them in recognition that memories fade, wit­nesses move away, and evidentiary materials become unavailable.  Moreover, both parties have an administrative interest in knowing when a particular dispute may be considered to be either resolved or moot.  However, the parties include grievance and arbi­tration procedures as a means of resolving disputes.  Doubts regarding pro­cedural defenses, including timeliness, therefore are to be resolved against forfeiture.

The City raised timeliness in its first step response.  It thus unequivocally notified the Union of this objection at the earliest opportunity.  Its participation in later steps of the grievance process was not a waiver of the timeliness objection; on the contrary, it was consistent with the aim of resolving disputes when possible, and fully preparing the matter for arbitration if an earlier resolution was not possible.

Under Article 35, the first step of the grievance process is begun when the employee approaches the supervisor informally; however, to perfect the first step, the employee files a written grievance, which triggers a written response.  Both the informal discussion and the written grievance must occur within the contractual time limit.  Thus, Article 35 conditions processing of a grievance on the event having “occurred within the past fourteen (14) days or the employee should reasonably have had knowledge of the event for no longer than fourteen (14) days ....”  The pivotal issue is, therefore, when “the event” occurred; i.e., whether “the event” was the notice of the schedule change or its implementation.