ARBITRATION
DECISION NO.:
627
UNION:
OCSEA, Local 11, AFSCME, AFL-CIO
EMPLOYER:
Department of Administrative Services
Ohio Data Network, Division of Computer Services
DATE OF
ARBITRATION:
February 18, 1997
DATE OF
DECISION:
March 26, 1997
GRIEVANT:
Kenneth Keirns
Grievant for Class Arbitrability
Work Schedules
OCB
GRIEVANCE NO.:
02-04-(95-06-04)-0470-01-09
ARBITRATOR:
Anna DuVal Smith
FOR THE
UNION:
Herman S. Whitter, Assoc. Gen. Counsel
Karen Vroman, Staff Representative
FOR THE
EMPLOYER:
Colleen Ryan, OCB
Angie Plummer, ODHR
KEY WORDS:
Arbitrability
Avoiding Payment of Overtime
Holiday Pay
Timeliness of Filing Grievance
ARTICLES:
Article 5 - Management Rights
Article 13 - Work Week, Schedules And Overtime
§ 13.02 - Work
Schedules
§ 13.07 - Overtime
Article 25 - Grievance Procedure
§ 25.01 - Process
§25.02 -
Grievance Steps
Article 26 - Holidays
§ 26.02 - Work on
Holidays
FACTS:
This case arose
in the Ohio Data Network, Division of Computer Services of the Department of
Administrative Services. There were
recurring, problems with the former procedure for scheduling holidays. A union steward requested that the holiday
scheduling procedure be changed to make it consistent so that the same person
would not work every holiday. An
Employer representative took the issue to the labor-management committee on
October 3, 1994, and both sides agreed to address the issue. The Employer's representative agreed with
the union steward's suggestion that the first-shift method be adopted. The Employer's representative presented the
resolution at the March 30, 1995, labor-management committee meeting and agreed
to draft a memorandum. The following
procedure was implemented: (1) the employer would determine how many slots to
fill for the holiday; (2) employer would canvas qualified operators, starting
with the most senior person with the least number of credited holiday hours
until all slots were filled; and (3) if there were not enough volunteers, the
least senior person with the least number of credited hours was required to
work the holiday.
Problems with the
new holiday scheduling scheme arose because each employee that accepted a
holiday slot was asked to take off a regular scheduled work day as a trade for
working the holiday. Those working the
holiday received holiday pay plus eight hours at the premium rate; those not
working the holiday received only holiday pay.
Although three
(3) grievances were filed, only two were considered by the Arbitrator. The Arbitrator concluded that the first
grievance, 02-04-(95-06-04)-0470-01-09, was not arbitrable. This grievance was not appealed to
arbitration under the timelines specified in Step 5 of Section 25.02 of the
Collective Bargaining Agreement. The
Arbitrator found that the appeal was eighty-six (86) days late. The Arbitrator stated that the Union had a
contractual obligation to appeal in a timely fashion despite the ongoing
discussions regarding the holiday schedule following the mediation meeting. Although the Union argued that the
discussions that followed the mediation did not result in impasse until the
labor-management meeting, the Arbitrator concluded that the mediation did not
constitute "the mediation" referred to in Section 25.02 since a
mediator was not present.
UNION’S
POSITION:
The Union argued
that changing the computer operators' schedules resulted in a reduction of
overtime pay. Additionally, the
Employer unilaterally implemented the new holiday scheduling scheme. Although the Union discussed the issue with
the Employer, the Union did not enter into a binding agreement to change
holiday scheduling. Finally, the Union
argued that the remaining two grievances were timely filed and the Employer was
barred from raising arbitrability since it was not raised prior to arbitration.
EMPLOYER’S
POSITION:
The Employer
contended that the holiday canvas practice was permissible under Articles 5, 13
and 26. Section 13.02 gives the
Employer the right to limit the number of persons scheduled to work at any one
time. Moreover, the requirement of
Section 13.07 was satisfied since posted regular schedules were unchanged after
they were posted. The Employer also
argued that Section 26.02 implies that it has the right to determine the
scheduling needs of the Agency including the number of employees needed to work
a holiday, and to change the employee's schedule provided Article 13
requirements are satisfied.
ARBITRATOR’S
OPINION:
The Arbitrator
concluded that the remaining two grievances were arbitrable because the
grievance over the 1995 Memorial Day holiday schedule put the Employer on
notice that there was an issue with the scheduling method. The Employer knew from the issue presented
in that grievance that each subsequent holiday week would contain potential
violation and liability unless it changed its practice.
The Arbitrator
stated that the only issue was whether it was proper for the Employer to flex
holiday week work schedules by requiring employees to take an unpaid day in
exchange for working the holiday. The
Employer was correct in relying on Article 5; it may alter work schedules to
improve efficiencies based on operational need. The Employer, however, failed to consider the beginning clause of
4117.8(C) ORC which Article 5 is based upon.
Under 4117.8(C) a public employer may agree to limit its rights in a
collective bargaining agreement. The
Arbitrator found that the Employer agreed to limit its rights with regard to
scheduling pursuant to Section 13.07 which prohibits changing an employee's
posted regular schedule to avoid payment of overtime.
The Arbitrator
concluded that requiring an employee to take off a regular scheduled work day
when the employee worked a holiday was done to avoid overtime. The Employer's "descheduling"
scheme required employees to give up overtime wages. The posted schedules were interrupted in order to avoid overtime
during the weeks in which the employees volunteered to work on a holiday. Finally, the Arbitrator concluded that this
scheme, in the absence of a mutual agreement, violated Section 13.07 since it
was implemented unilaterally.
AWARD:
The grievances
were sustained. The Employer was
directed to cease from future violations and pay overtime to the grievants
whose "regularly scheduled" days were changed to avoid overtime
payment.
TEXT OF
THE OPINION:
VOLUNTARY LABOR ARBITRATION TRIBUNAL
In the
Matter of Arbitration
Between
OHIO CIVIL SERVICE
EMPLOYEES ASSOCIATION
LOCAL 11, AFSCME, AFL/CIO
and
OHIO DEPARTMENT OF
ADMINISTRATIVE SERVICES
OPINION AND AWARD
Anna DuVal Smith, Arbitrator
Case Nos.:
02-04-950605-0470-01-09
02-04-960229-0007-01-09
02-04-960531-0018-01-09
Kenneth Keirns, Grievant for Class
Arbitrability,
Work Schedules
Appearances
For the Ohio Civil Service Employees Association:
Herman S.
Whitter, Associate General Counsel
Karen
Vroman, Staff Representative
Ohio Civil
Service Employees Association
Columbus,
Ohio
For the Ohio Department of Administrative Services:
Colleen
Ryan, Ohio Office of Collective Bargaining
Angie
Plummer, Ohio Department of Human Resources
Columbus,
Ohio
<PAGE NAME="2">
I. HEARING
A hearing on this
matter was held at 9:40 a.m. on February 18, 1997, at the offices of the Ohio
Office of Collective Bargaining, Columbus, Ohio before Anna DuVal Smith,
Arbitrator, who was mutually selected by the parties by direct appointment,
pursuant to the procedures of their collective bargaining agreement. Three grievances were presented. The hearing was bifurcated to determine the
arbitrability of No. 02-04-950605-0470-01-09.
Following dismissal of this grievance by reasoning set forth below, the
hearing proceeded to the merits of the remaining grievances, Nos. 02-04-960229-0007-01-09
and 02-04-9605310018-01-09. The parties
were given a full opportunity to present written evidence and documentation, to
examine and cross-examine witnesses, who were sworn or affirmed and excluded,
and to argue their respective positions.
Testifying for the Union were Kenneth E. Keirns (Computer Operator 4),
Glenn Cole (Computer Operator 2), Jenny Worden (OCSEA Staff Representative) and
Kathy Steward (Chapter President), the latter by speaker phone. Also present was Larry Stiles, Union
Steward. Testifying for Management were
Shirley Turrell (Office of Collective Bargaining) and Debbie Howell (Department
of Administrative Services). Also
present was Edie Bargar of the Department of Administrative Services. A number of documents were admitted into
evidence (Joint Ex. 1-8, Union Ex. 1, and Management Ex. 1-2). The hearing concluded at 3:45 p.m. on
February 18, whereupon the record was closed.
This opinion and award is based solely on the record as described
herein.
II. ARBITRABILITY
Statement
of Facts
The subject
grievance was filed on May 31, 1995 (Joint Ex. 2) and processed through to Step
4 of the grievance procedure. The
mediation meeting was held on October 10, 1995 (Management Ex. 1). Thereafter it was the subject of discussion
at labor-management meetings, the last of which occurred about February 12,
1996, but no settlement was reached.
The Union then appealed the case to arbitration in a letter dated March
5 which was received by the Office of Collective Bargaining on March 11, 1996.
Issue
Was
grievance 02-04-950605-0470-01-09 timely appealed to Step 5 of the grievance
procedure?
If not,
what shall the remedy be?
Positions
of the Parties
The Employer
argues that the grievance is not arbitrable because it was not timely appealed
to arbitration under the timelines specified in Step 5 of Section 25.02 of the
Collective Bargaining Agreement. Even
taking the most lenient date of March 5, the appeal was 86 days late. There being no waiver, the Union had a
contractual obligation to appeal in a timely fashion despite there being
ongoing discussions following the mediation meeting. The Employer contends that the doctrine of laches applies,
asserting that the Union sat on its rights, creating a liability for the
Employer. It asks that the Arbitrator
uphold the specific language of the Agreement and dismiss the grievance as not
arbitrable.
The Union does
not dispute that the appeal to arbitration was filed more than 60 days after
the mediation meeting, but argues that the discussions that followed that
meeting did
not result in impasse until the February 12 labor-management meeting. The grievance ought not to be dismissed
because it was appealed within 60 days of the meeting at which it became
apparent that there would be no negotiated resolution.
Pertinent
Contract Provisions
ARTICLE 25 - GRIEVANCE PROCEDURE
25.01 -
Process
C. The word "day" as used in this
article means calendar day and days shall be counted by excluding the first and
including the last day. When the last
day falls on a Saturday, Sunday or holiday, the last day shall be the next day
which is not a Saturday, Sunday or holiday.
25.02 Grievance Steps
Step 4 Mediation/Office of Collective Bargaining
If the grievance
is not resolved at Step 3, or if the Agency is untimely with its response to
the grievance at Step 3, absent any mutually agreed to time extension, the
Union may appeal the grievance to mediation by filing a written appeal and a
legible copy of the grievance form to the Director of the Office of Collective
Bargaining within fifteen (15) days of the receipt of the answer at Step 3 or
the due date of the answer if no answer was given, whichever is earlier. OCB shall have sole management authority to
grant, modify or deny the grievance.
The mediator(s)
may employ all of the techniques commonly associated with mediation, including
private caucuses with the parties. The
taking of oaths and the examination of witnesses shall not be permitted and no
verbatim record of the proceeding shall be taken. The purpose of the mediation is to reach a mutually agreeable
resolution of the dispute where possible and there will be no procedural
constraints regarding the review of facts and arguments. Written material presented to the mediator
will be returned to the party at the conclusion of the mediation meeting. The comments and opinions of the mediator,
and any settlement offers put forth by either party shall not be admissible in
subsequent arbitration of the grievance nor be introduced in any future
arbitration proceedings.
If a grievance
remains unresolved at the end of the mediation meeting, the mediator will
provide an oral statement regarding how he/she would rule in the case based on
the facts presented to him/her.
The disposition
of grievances discussed during the mediation meeting will be listed by the
representative from the Office of Collective Bargaining on a form mutually
agreed to by the parties. A copy of the
summary shall be provided to the Union within five (5) days.
The parties will
consolidate cases for mediation and, whenever possible, schedule the mediation
meetings at decentralized locations. A
Union staff representative, grievant and a steward or chapter president as
designated by the Union may be present at the mediation of a grievance. No more than two (2) of the Union
representatives present including the grievant may be on paid leave by the
Employer. Each party may have no more
than three (3) representatives present at the mediation of a grievance.
Step 5 -
Arbitration
Grievances which
have not been settled under the foregoing procedure may be appealed to
arbitration by the Union by providing written notice to the Director of the
Office of Collective Bargaining within sixty (60) days of the mediation
meeting unless either party notifies the other that such grievance can not be
effectively mediated.
Decision
of the Arbitrator
I cannot
disregard the clear and unambiguous language of the Agreement, which specifies
written notice of appeal to arbitration "within sixty (60) days of the
mediation meeting." The
labor-management meeting of February 12 does not constitute "the mediation
meeting" referred to in Section 25.02.
Notably absent was a mediator, who had presumably already provided his
advice on how he would rule as arbitrator.
While such an opinion might stimulate further discussions that could
lead to settlement or withdrawal after the close of the mediation meeting, it
is incumbent on the Union either to obtain a waiver of timelines or to appeal
the case within the Contractual time limits in order to keep its claim
alive. Grievance 02-04-950605-0470-01-09
was untimely appealed, is therefore not arbitrable and accordingly dismissed.
III. MERITS
Statement
of the Case
This case arose
in the Ohio Data Network, Division of Computer Services of the Department of
Administrative Services. The computer
operation located in the State of Ohio Computer Center (SOCC), and Print
Services and Integrity in the State Office Tower (SOT), is a 24-hour-a-day,
7-day-a-week operation necessitating the scheduling of computer operators
around the clock. The instant dispute
concerns the holiday schedule.
Debbie Howell
testified that there were recurring problems with the former procedure for
scheduling holidays, among them inconsistency because of different implementation
in each facility and on each shift, and the burden of working holidays falling
differentially on those who regularly worked Mondays. Under the old procedure, only those whose regular work day was
the holiday would be canvassed to see if they wanted to work on the holiday,
but there were differences in implementation across shifts. For example, on the third shift everyone who
usually worked the day came in without regard to work load. On the second shift, however, employees were
canvassed to fill available slots, with the last person canvassed on the
previous holiday asked first on the next one.
Howell testified that a Union steward, Jeff Hodges, asked that the
procedure be changed to make it consistent and so that the same person would
not have to work every holiday. Howell
therefore took the problem to the labor-management committee on October 3,
1994, where the parties agreed to address the issue. A subcommittee was formed, consisting in part of Debbie Howell
and Shirley Turrell for the Employer and Jenny Worden, Kathy Stewart and Jeff
Hodges for the Union. According to
Howell, Turrell and Worden told her that she and Hodges should come to a mutual
agreement. Hodges suggested adoption of
SOCC's first shift method and Howell agreed.
Howell made a presentation at the March 30, 1995, labor-management
meeting and agreed to draft a memo.
The procedure as
implemented began with the Employer determining how many slots to fill for the
holiday. Howell testified that because
the operation's customers are typically not working on holidays, fewer computer
operators than usual are needed. Once
the number of slots are determined, the Employer canvasses qualified operators,
beginning with the most senior person with the least number of credited holiday
hours, until all slots are filled.
Those volunteering to work are credited with eight hours, those who
decline are credited with zero. If there are not enough volunteers, then the least senior person
with the least number of credited hours is mandated. Rosters are cleared to zero hours each July 1. Each person accepting a holiday slot is
asked which of their usual work days they wish to take off as a trade for the
worked holiday. If operationally
possible, their choice becomes their "good day." In any event, those working the holiday
receive holiday pay plus eight hours at the premium rate. Those not working the holiday receive
holiday pay. Howell testified this
procedure was devised not to avoid payment of overtime, but to provide equal
opportunities for having holidays off.
She continued that no one said the plan was not ok, but that Worden said
she would have to talk to someone about it and there had to be meetings with
the affected employees.
Meetings with
employees were held to inform them of the changes. Kenneth Keirns, then a Computer Operator 2, testified he learned
that employees' regular schedules would be changed around the holidays to avoid
overtime payments. Although his own
schedule was not then affected, he objected.
When it was affected, during Memorial Day week, he filed a grievance
(02-04-950605-0470-01-09), which this Arbitrator later dismissed as being
untimely appealed to Step 5.
The minutes of
the June 27, 1995, labor-management meeting confirm that Howell had met with
the bargaining unit, a draft memo had been prepared, the Memorial Day canvass
had been done and one was planned for Labor Day. It further states, "The 28 days requirement and 14 day
advance notice requirement was met," and that meetings would be set up to
educate supervisors and stewards on the overtime/holiday policy. Jenny Worden testified that it was
through these meetings that they became aware the policy would cost a direct
benefit to some employees.
Meanwhile, the
grievance was processed at Steps 3 and 4.
Discussions for resolution continued, including at the aforesaid
February 12, 1996, labor-management meeting.
Jenny Worden, a staff representative who attended this meeting,
testified the Union proposed that the Employer could forego the new arrangement
and just follow the canvassing procedure in the Contract. However, both she and Kathy Steward
testified that the Union never entered into any agreement, and the minutes of
this meeting show Edie Bargar, Labor Relations Officer at the Department,
finished the discussion with, "Our side needs to talk about it."
When it later
became apparent that the grievance had a potentially fatal procedural flaw,
Kenneth Keirns filed a second class-action grievance (02-04-960229-0007-01-09,
February 23, 1996) alleging violation of Sections 13.02, 13.07 and 26.02 of the
Contract in the scheduling of the February 19, 1996 holiday (Joint Ex. 3). Documents and testimony were offered to show
how various members of the class were affected. For example, on the first shift in the State Office Tower, Dyer
and Peterson were scheduled to work Tuesday - Saturday three of the four weeks
in the February 4, 1996 - March 2, 1996 period. For the week of the February 19 holiday, they were scheduled to
work Monday and Wednesday - Saturday, then descheduled Monday. Glenn Cole, a Computer Operator 2, testified
about his own situation. During the
January 28, 1996 - February 24, 1996 period, he was scheduled to work Tuesday -
Saturday for three of the four weeks.
However, in the week containing the holiday, he was scheduled to work the Monday
holiday, and was asked to take a different day off. He thus traded days off, working Monday instead of Thursday.
A third grievance
(02-04-960531-0018-01-09) was filed on May 31, 1996, to cover the May 27th
holiday (Joint Ex. 4). The parties
agreed that this latter grievance would be prospective, obviating the need for
grievances covering future holidays.
Being unresolved at lower steps, both grievances came to arbitration
where they presently reside for final and binding decision.
Stipulated
Issue
Were
Sections 13.02, 13.07, 26.02 and 26.03 of the Collective Bargaining Agreement
violated when employees' days off were changed during the week of a holiday?
Pertinent
Contract Provisions
ARTICLE 5 - MANAGEMENT RIGHTS
Except to the
extent expressly abridged only by the specific articles and sections of this
Agreement, the Employer reserves, retains and possesses, solely and
exclusively, all the inherent rights and authority to manage and operate its
facilities and programs. Such rights
shall be exercised in a manner which is not inconsistent with this
Agreement. The sole and exclusive
rights and authority of the Employer include specifically, but are not limited
to, the rights listed in The Ohio Revised Code, Section 4117.08 (C), Numbers
1-9.
ARTICLE 13 - WORK WEEK, SCHEDULES AND OVERTIME
13.02 -
Work Schedules
Work schedules
for employees who work in seven (7) day operations shall be posted at least
fourteen (14) calendar days in advance of the effective date. The work schedule shall be for a period of
at least twenty-eight (28) days and shall not be changed within that period,
except in accordance with reassignment as provided for in Section 13.05.
13.07 -
Overtime
An employee's
posted regular schedule shall not be changed to avoid the payment of overtime.
ARTICLE 26 - HOLIDAYS
26.02 -
Work on Holidays
. . .No employees
posted regular schedule or days off shall be changed to avoid holiday premium
pay. The Agency reserves the right to
determine the number of employees needed to work the holiday.
26.03 -
Eligibility for Holiday Pay
An employee whose
scheduled work day off falls on a holiday will receive holiday pay for that
day.
Arguments
of the Parties
Argument of the Union
The Union
contends the evidence shows the computer operators had regularly scheduled work
days which they did, in fact, work except during holiday weeks. Further, their schedules were changed,
resulting in the reduction of overtime pay.
The Union says that while the Union did discuss the issue with the
Employer, no official with the authority to bind the Union entered into an
agreement. Absent an agreement, the
Employer implemented the new practice unilaterally. The Union commends to the Arbitrator, the Slone & Ladden decision (ODMH
v. OCSEA, Grievance No. G-86-103, January 15, 1988, R. Rivera, Arbitrator).
As to the
Employer's contention that these two grievances are not arbitrable, the Union
argues that since the Employer did not raise the issue prior to arbitration, it
should be barred from doing so now. The
Union further maintains that these two grievances were filed within the time
limits counting from the date the individuals were affected by the change. In addition, a practice of less than a
year's standing does not constitute a past practice.
The Union
concludes asking that the grievance be granted. As a remedy, it asks that the Employer be directed to cease
future violations and to pay overtime to the grievants whose "regularly
scheduled" days were changed to avoid the payment of overtime. It also asks that the parties be directed to
ascertain to what extent each grievant was financially affected by the schedule
changes.
Argument of the Employer
The Employer
makes four arguments, one that it did not violate the Contract when it
established the holiday canvas practice, three that the grievances were
untimely filed.
The first
argument is that the holiday canvas practice is permissible under Articles 5,
13 and 26. Under Section 13.02, the
Employer has the right to limit the number of persons scheduled off work at any
one time. Its 7-day-operation language,
which calls for posting of the work schedule 14 days in advance of its effective
date, requires the schedule to be for a minimum of 28 days, and prohibits
changing the schedule within that period implies that Management has the right
to change the schedule at least once every 28 days. With regard to Section 13.07, there was no evidence offered to
rebut the Employer's testimony that the posted regular schedules were unchanged
after they were posted.
Section 26.02's
pertinent language is that "no employees” posted regular schedule or days
off shall be changed to avoid holiday premium pay." Again, says the
Employer, the schedule was posted in compliance with Article 13 and once
posted, there were no changes. Section
26.02, claims the Employer, implies that it has the right to determine the
scheduling needs of the Agency including the number of employees needed to work
a holiday, and to change an employee's schedule as long as it meets the
requirements of Article 13.
Article 5
incorporates Chapter 4117.08(C) O.R.C. which clearly allows the Employer to
alter work schedules to improve efficiencies based on operational need. The Employer contends it showed through the
testimony of its witness that there was operational need for a consistent
practice of scheduling between all the sites of these employees. Because of disgruntled employees and
inconsistencies, the Employer worked through the labor-management committee to
appease its employees and make the workplace a better environment. It implemented the holiday canvass practice
in good faith in January 1995.
Based on this
implementation date, by which time the Union was clearly put on notice through
the committee and employee meetings, the grievances were untimely filed and
therefore not arbitrable. A second
timeliness argument takes the triggering event to be when the schedule was
posted. The schedule for the February
19 holiday was posted February 5. The
deadline for grieving it was 10 days hence, or February 15, but the grievance
was not filed until February 28. The
schedule for the May 27 holiday would have been posted by mid-May, making the
grievance deadline May 23, but it was not filed until May 31. The third timeliness argument is that
between the grievance filed protesting the 1995 Memorial Day schedule and the
grievance filed to protest 1996 Presidents Day schedule, there were eight
holidays, all of which were scheduled by means of the holiday canvass
procedure. The fact that no grievances
were filed over these holidays, and that the Memorial Day grievance made no
mention of "subsequent holidays," lulled Management into believing
the issue was resolved.
Management points
out that with the dismissal of the first grievance, the remedy, if any, will be
limited to Presidents Day, 1996 forward.
The Union's witness admitted that the Union does not have to
agree with Management's schedule and that Management can change the schedule
pursuant to Section 13.02. Thus, an
employee's "regular schedule" is not Tuesday through Saturday, but
whatever Management posts. In addition,
of the three scenarios put forth by the Union, the only employees harmed were
those on a Tuesday - Saturday schedule who were given Tuesday off, scheduled
for Monday, then descheduled. Only they
lost money, for employees in the other two scenarios were paid for 52 hours.
Finally, with
respect to the Slone award relied on
by the Union, Management points out that the holiday involved was July 4, 1986,
which was scheduled by a practice initiated prior to collective
bargaining. It contends that Management
is not bound by arguments made by an advocate in a prior case and that the
issue here is different than in the earlier case.
For all these
reasons, the Employer asks that the grievances be denied in their entirety.
Opinion of
the Arbitrator
Taking the
procedural arguments first, the second and third grievances are timely and
therefore arbitrable. The existence and
processing of the 1995 Memorial Day grievance put the Employer on notice that
there was an issue, for it knew from this grievance that unless it changed its
practice, each subsequent holiday week would contain a potential violation and
liability. Thus, it was not lulled into
creating a liability for itself, but did so with full awareness. For the Union's part, it could not have
known it was necessary to file another grievance until it became aware there
was a potential fatal flaw to the original grievance and that there was impasse
on the merits. This would have occurred
sometime around the February 12, 1996, labor-management meeting that
resulted in no settlement. A grievance
was filed at the next opportunity, within 10 days of Management going forward
with the 1996 Presidents Day week as scheduled. It is therefore timely and arbitrable, as is the 1996 Memorial
Day grievance.
Turning now to
the merits, as I understand the position of the Union, it does not challenge
the right of Management to determine how many computer operators are needed to
work on a holiday, nor does it challenge the holiday canvass to fill the slots,
nor does it claim employees were improperly paid for the holidays themselves,
worked or not. And I, in fact, find no
evidence of Contractual violations in these regards, not of Sections 26.02 or
26.03 which govern work on holidays and eligibility for holiday pay, nor of
Section 13.02, since there is no evidence that work schedules were changed
after they were posted. The sole issue
is whether it was proper for the Employer to flex holiday week work schedules
by requiring employees to take an unpaid "good day" in exchange for
working the holiday. In my opinion, it
was not.
Management relies
on Article V, asserting this gives it the right to schedule employees to meet
its operational needs. The Employer is
correct so far as it goes, but overlooks 4117.8(C)'s beginning clause, "Unless
a public employer agrees otherwise in a collective bargaining
agreement." In this case, the
Employer has agreed to limits on its right to schedule. The pertinent constraint is contained in
Section 13.07, "An employee's posted regular schedule shall not be changed
to avoid the payment of overtime."
The Employer
claims the purpose of flexing the schedule was to equalize holiday time-off
opportunities and to provide for consistent application of policy. I find this argument
disingenuous. That was no doubt the
reason for the holiday canvass, but not of requiring a substitute "good
day." Descheduling was to avoid
overtime, while the canvass was to provide relief for the least-senior
employees who bore the burden of working holidays.
The flexed
holiday schedule did, in fact, avoid the payment of overtime. Had Glenn, for example, not been required to
take February 22 as a "good day" as the quid pro quo for working
February 19, he would have worked an additional eight hours at the premium
rate. This practice does not
"allow" employees working a holiday "to have a longer
weekend" as the Step 3 responses say.
It requires them to do so and
to give up overtime wages in the process.
Some employees may like this, others evidently do not. No business reason such as lower staffing
needs during holiday weeks or on the day following a holiday were given to
justify the deschedule practice, only that it made the holiday canvass
affordable. The inescapable conclusion
is that the days were descheduled for no other reason than to avoid overtime.
The practice
still might be permissible if the deschedule does not constitute a change to
the employee's "posted regular schedule." As in the Slone case,
the Employer emphasizes "posted," saying it has the right to change
schedules before they are posted, while the Union focuses on
"regular," asserting the descheduling amounted to a temporary break
in a regularity that extended throughout and beyond the 28-day period of each
posted schedule. As Arbitrator Rivera
found, the phrase on its face is ambiguous.
It could mean that the Employer may not change "the regular
schedule that it then posts," or that it may not change "a regular
schedule once posted." The 1988 Slone decision gave it the former meaning,
looking to preceding contracts, decisions and documents for guidance. Since then the parties have had numerous
opportunities to rewrite the phrase to give it a different meaning, and have
failed to do so. This implies a
"meeting of the minds" that the dominant word is "regular,"
with the phrase meaning that the Employer may not change the regularity of a
schedule in order to avoid overtime. It
is evident that that is what happened here.
The regularity of Glenn's Tuesday - Saturday and other employees' posted
schedules was interrupted in order to avoid overtime during the weeks in which
they volunteered to work on a holiday.
The only question
remaining is whether this was by mutual agreement. While the holiday canvass practice was inspired by disgruntled
employees including a Union officer who participated in its development,
meetings with employees revealed a flaw in the plan that forestalled agreement
of the Union, though it met the needs of some members and, evidently, an
officer. In the absence of mutual
agreement, the descheduling practice was implemented unilaterally, thus
violating Section 13.07.
Award
Grievance Nos.
02-04-960229-0007-01-09 and 02-04-960531-0018-01-09 are sustained and the
requested remedy granted. The
Arbitrator retains jurisdiction for 90 days to resolve any dispute that may
arise in the implementation of this award.
Anna DuVal Smith, Ph.D.
Arbitrator
Cuyahoga County, Ohio
March 26, 1997