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Title: Portage
County Board and
Portage County Educators Association OPINION
AND AWARD In
the matter of Voluntary Arbitration Between The Portage County Educators Association for the Mentally Retarded And The Portage County Board of the Mentally Retarded and Developmentally Disabled Regarding AAA Case
Number 53-390-00334-05
An
arbitration hearing was conducted September 22, 2005 at the headquarters
of the Portage County MRDD, Ravenna, Ohio.
The
parties did not agree upon an issue initially so each presented their own
view of the matter at hand. In
their post hearing brief, the Board framed the issue in two questions: 1.
Does the party alleging a violation of a collective bargaining
agreement bear the burden of proving the alleged violation? 2.
Does
the parties collective bargaining agreement provide breaks for employees
working less than seven (7) hours per day? In
their brief the Association submitted the following issue:
Did the Board violate the collective bargaining agreement when
it eliminated breaks for six and a half hour employees?
If so, what shall the remedy be? During
the course of the hearing the parties jointly stipulated the
version submitted by the Association to be the issue in this case.
Therefore that is the question I will answer. I
will also deal with the “burden of proof” question raised by the
Board.
Both parties were given full opportunity to examine and
cross-examine witnesses, pose arguments and present their respective
cases. Both advocates presented their cases competently and
professionally. Both parties
submitted post-hearing briefs, which convincingly summarized their
positions. All evidence,
arguments and views were considered by the Arbitrator in reaching the
decision stated herein. At the hearing the parties agreed that the matter was
properly before the arbitrator for determination.
In that this grievance deals with a
matter of contract interpretation, the Association presented its case
first.
Relevant provisions of the Collective
Bargaining Agreement include: 7.05
STANDARD WORKDAY AND WORKWEEK
7.051 standard
workday and workweek for facility-based
employees
as assignED The standard workweek will be thirty-five (35) hours [thirty-two and one-half (32 1/2) hours for Instructor Assistants/Registered Service Assistants/Personal Service Assistants] at the rate of seven (7) hours per day [six and one-half (6 1/2) hours per day for Instructor Assistants/Registered Service Assistants/ Personal Service Assistants] as scheduled by the Board, which includes breaks (included elsewhere herein) and a thirty (30} minute lunch away from students/adults except in emergency situations. Breaks and lunch periods may not be accumulated or voluntary nonuse of be a reason for the staff member to leave early, and may not be accumulated for compensatory time, except as approved by the Superintendent. However, if an employee is unable to take his/her lunch break due to situations beyond his/her control, he/she may leave after students/clients are dismissed at the end of the day, upon prior approval of the Immediate Supervisor and completion of daily record-keeping requirements, there shall be two (2) breaks per day [fifteen (15) and ten (10) minutes], one in the morning and one in the afternoon, for staff working at least seven (7) hours per Staff members are discouraged from leaving the District during his/her lunch period. Should the staff member leave the District during his/her lunch period, it is recognized that he/she is on his/her own time and not on Board business. A Memorandum of Understanding shall be executed ensuring the current 8 hour employees shall continue to work 8 hours so long as they remain in their current position. 7.052 STANDARD WORKDAY and workweek .for clerical and food service staff A. The standard workweek for Clerical and Food Service staff shall be eight (8) hours per day and forty (40) hours per week, except for the Assistant Cook whose workday shall be six and one-half (6 1/2) hours and thirty-two and one-half (32 1/2) hours per week. A thirty (30) minute lunch and two (2) fifteen (15) minute breaks shall be considered part of the workday, as scheduled by the Supervisor. B. Breaks and lunch periods shall not be accumulated or voluntary nonuse of be a reason for the staff member to leave early, and may not be accumulated for compensatory time, except as approved by the Superintendent. However, if an employee is unable to take his/her lunch break due to situations beyond his/her control, he/she may leave after students/clients are dismissed at the end of the day upon prior approval of the Immediate Supervisor and completion of daily record-keeping requirements. Staff members are discouraged from leaving the District during his/her lunch period. Should the staff member leave the District during his/her lunch period, it is recognized that he/she is on his/ her own time and not on Board business. By agreement of the Superintendent and the employee, the workday for an eight (8) hour employee may be up to one (1) hour shorter. 7.053 standard workday and workweek for community-based employees As assigned A. The standard workday and workweek for employees assigned to vocational services which are provided in the community may vary by assignment. Salary for such positions shall be prorated in accordance with hours worked. Employees will not receive payment for their one-half (1/2) hour lunch; however, if they are required to provide supports/services during their scheduled lunch period, they may receive pay or compensatory time. Shift hours may vary by assignment and shall coincide to the schedule of the assigned company. Break periods may not be accumulated or voluntary nonuse of be a reason for the staff member to leave early, and may not be accumulated for compensatory time, except as approved by the Superintendent. The break schedule and length of breaks shall coincide to the schedule of the assigned company,F15ut In no case shall the total amount of break time per day be less than twenty (20) minutes for staff working at least seven (7) hours per day. Group work sites located in the community shall not be more than twenty-two (22) miles from Portage Industries, Inc., unless agreed upon by the parties to this Agreement. The Board shall pay a shift differential of Fifty Cents ($.50) per hour to any employee for any hours worked outside the hours of 7:29 a.m. to 5:01 p.m. If no bargaining unit employees apply for an initial group work site the Board reserves the right to assign qualified employees based upon seniority (least to most). The standard workweek will be thirty-five (35) hours per week for employees assigned to non-vocational services which are provided in the community at the rate of seven (7) hours per day as scheduled by the Board, which includes breaks (included elsewhere herein) and a thirty (30) minute lunch which may include service/support time with individuals served. This paragraph does not apply to Employment/Training Specialists or Employment Specialists during periods when their assignment includes nonvocational supports/ services. Breaks and lunch periods may not be accumulated or voluntary nonuse of be a reason for the staff member to leave early, and may not be accumulated for compensatory time, except as approved by the Superintendent. However, if an employee is unable to take his/her lunch break due to situations beyond his/her control, he/she may leave early upon prior approval of the Immediate Supervisor and after completion of responsibilities for the day including record-keeping requirements. [There shall be two (2) breaks per day [fifteen (15) and ten (10) minutes], one in the morning and one in the afternoon, for staff working at least seven (7) hours per day. BACKGROUND:
The Portage County Board of MRDD provides
services to handicapped adults working at the on site Workshop or at
various employment sites throughout the County.
Certain employees of the Board including those who are covered by
this grievance, are represented by the Portage County Educators’
Association.
The parties have been covered by
collective bargaining agreements since 1981.
The parties prepared to enter into
negotiations for a new agreement early in 2005. Approximately six to eight weeks prior that that time the
Association challenged the long standing practice of the Board to use a
number of permanent substitutes. An
unfair labor practice was filed with the State Employment Relations Board
(SERB).
The instant grievance was filed as a
class action and deals with breaks for employees who work less than 7
hours per day.
The grievance states: STATEMENT OF GRIEVANCE: On 1 1/23/04, the PCEAMR raised the issue of the use of a large number of substitutes to do bargaining unit work (with the administration of the Portage Board of MR/DD). On December 7th and 8"1, the Superintendent sent out letters to the workshop and the school indicating subs would no longer be used except when regular employees were absent. On December 9"1, Phil Miller, the manager of the workshop, sent out a letter to all of the workshop employees outlining a plan for coverage reducing breaks from 2 to 1 for 6.5 hour employees. On December 13th, Phil Miller sent out another letter eliminating all breaks for 6.5 hour employees. The contract language has been interpreted and implemented to give all 6.5 hour employees 15-minute breaks. This practice has been in effect for as long as anyone can remember.
REMEDY REQUESTED: Restore breaks to
the pre December 13, 2004 level for all 6.5 hour employees,
compensate those employees who have been denied their breaks and/or any
other remedy
deemed appropriate to make the Grievant whole. Apparently the practice of two breaks for all employees
either began in 1981 or was continued under that collective bargaining
agreement. The language in
that agreement stated: “The
standard work week with be thirty-five (35) hours (thirty-two and one-half
(32 ˝) hours for Instructor Assistants) as scheduled by the Board which
includes breaks, included elsewhere herein, and thirty (30) minutes lunch
away from students and adults, except in emergency situations.” This language has remained substantially unchanged
through the current agreement. While the language in all the agreements includes the
wording “included elsewhere herein” there is no evidence that any
other reference was made to breaks in any of the collective bargaining
agreements beginning in the 1981-84 agreement and continuing into the
current agreement. In the 1984 collective bargaining agreement, language
was added that states; “There shall be two (2) breaks per day (fifteen [15]/ten [10]
minutes), one in the morning and one in the afternoon, for staff working
at least seven (7) hours per day.
Even though the language was added, two
breaks were permitted for all employees including those who worked less
than seven hours per day.
Once the current controversy arose
regarding the use of permanent substitutes, the Board determined to change
their practice regarding the use of substitutes to provide coverage for
the breaks being taken by 6
˝ hour employees (except the assistant cook who is specifically covered
by another part of the agreement.)
On December 9, Philip Miller, Director of
Adult Services informed Superintendent Holden that “We will be forced to
revert to contract language regarding the break schedule for 6.5 hour
employees allowing them one break per day in order to provide adequate
coverage.” (Association exhibit 3).
On December 13, 2004 Philip Miller sent a
memorandum to staff stating: “Because
of the concern for adequate coverage to assure the health and safety of
our consumers and upon further review and management discussion regarding
the PCEAMR Master Agreement, 7.051, we will not be able to provide any
break during the course of the workday for 6.5 hour employees effective
today. ASSOCIATION
POSITION:
The Association argues that the language
of the collective bargaining agreement is not clear and unambiguous and
therefore past practice should be considered. The union notes that all the agreements contain the words
“included elsewhere herein” and yet they are without a section to
reference. The Association further notes that 6.5 hour employees have
received two breaks since 1981. The
fact that the practice has been in effect for 23 years must be considered.
The Association cites an arbitration
decision (Celanese Corp. 24 LA 68, 172 [1954]) which states:
a past practice, to be enforceable, must be “(1) Unequivocal, (2)
Clearly enunciated and acted upon; and (2) readily ascertainable over a
period of time as a fixed and established practice accepted by both
parties.”
The Association notes that the action of
the Adult Director is evidence that the agreement is not “clear and
unambiguous” in that on December 9 he concluded that 6.5 hour employees
were entitled to only one break, and on December 13 he notified employees
that they were entitled to no breaks.
The Association argues that the intent of
the parties to include 6.5 hour employees is evident by the specific
language of 7.052 (A) which provides the assistant cook [a 6.5 hour
employee] with two breaks.
The third argument offered by the
Association is that the Board retaliated against them for raising the
issue of the substitutes.
The fourth argument advanced by the
Association is that recognition of the bargaining unit section of the
collective bargaining agreement is
(emphasis added) clear and unambiguous regarding the issue of substitutes
and therefore should be considered.
In this argument the Association would
diminish the position of the Board that the use of permanent substitutes
are also a past practice.
Finally the Association points to the
written policy of the Board which states that all full-time employees
(which includes 6.5 hour employees) get two breaks per day. BOARD’S
POSITION:
The Board first
argues that the burden of proving the violation contained in a grievance
must rest with the association. They
cite an arbitration decision by Dennis Minni
to buttress their position (AAA Case No. 53-390-00347-97, Twinsburg
City Schools and Twinsburg Support Staff Assn. OEA).
The Board then turns to the substantive
issue regarding the discontinuation of breaks for 6.5 hour employees.
The Board argues that the plain language
of the agreement should govern. To
support their position the board cites a Supreme Court decision (Kabert
v. Shaker Heights City School District B.O.E. 78 Ohio St. 3rd
37, 676 N.E. 2d 101 (1997). In
that decision the court wrote: “ A collective bargaining
agreement is a contract, and the
overriding concern of any court when construing a contract is to ascertain
and effectuate the intention of the parties.”
The Board goes on the cite a SERB
decision (SERB vs. Defiance B.O.E., SERB 97-016 (1121/97) “When an employer has
engaged in a practice exceeding the minimum set forth in the collective
bargaining agreement, the employer is not precluded from exercising its
contractual rights to impose the minimum set forth in the contract.” “For the reasons above, we
find that the Defiance City School District Board of Education acted
within the agreed-to limits contained within the parties’ collective
bargaining agreement when it eliminated one of the High School English
Compensation teachers two planning periods without bargaining with the
Defiance City Education Association OEA/NEA.” The final argument offered by the Board is that the
arbitrator lacks the authority to grant the grievance because to do so
would alter the plain and ordinary contract language. The Board cites case law and arbitration decisions to
support this position. Without quoting all of the cases cited the conclusion
is that “If the language of an
agreement is clear and unambiguous, an arbitrator will generally not give
it meaning other than that expressed…” (Louisville Education
Association v. Louisville Board of Education, AAA Case No. 53-390-634-04). The Board concludes this argument by citing the
Goodyear Tire and Rubber supreme court decision (41 Ohio ST. 2d 516 N.E.
2d 703 at 706 (1975): “An arbitrator’s
authority is limited to that granted by the contracting parties, and does
not extend to the determination of the wisdom or legality of the
bargain… (An) arbitrator is confined to interpretation and application
of the collective bargaining agreement; he does not sit to dispense his
own brand of industrial justice.” DISCUSSION:
There are few
disputed facts in this case. ·
The parties have been governed by collective
bargaining agreements since 1981. ·
6.5 hour employees have regularly received two
breaks a day since that time until December 13, 2004 when the practice was
discontinued.
Let us begin this discussion by disposing
on the preliminary question raised by the Board:
“Does the party alleging a
violation of a collective bargaining agreement bear the burden of proving
the alleged violation?” The answer is YES.
In a contract interpretation matter the burden of proof lies with
the moving party to prove the violation by a preponderance of the
evidence. I know of no
arbitrator who believes differently. Then let us turn to the arguments of the
parties that can be dismissed. The Association would have the arbitrator believe that the
action taken was in retaliation for their action in challenging the use of
permanent substitutes. The
Association clearly failed to prove such an assertion.
Arbitrator Walllace B. Nelson in an antiunion animus case wrote “To
support such a charge, there must be evidence and/or powerful inferences
reasonably drawn from the evidence. Mere assertions are not enough.” (81
LA 318). In this case the Board was clear about the reasons
from their actions in that they believed there had been two past
practices. To eliminate one could, in the minds of the Board decision
makers, lead to the elimination of the other. In another argument the Association appears to want
this arbitrator to dispose of the Board’s position that the issue of
permanent substitutes is also a past practice.
That grievance is not before this arbitrator and therefore I have
no authority to deal with it. The Association also notes that the written policy of
the Board allows for two breaks for all full-time employees.
While this argument may be instructive as it relates to the clarity
of the agreement, written policy is subservient to the collective
bargaining agreement in any public employee collective bargaining
agreement in Ohio. There are arguments advanced by the Board that can
also be dismissed before proceeding.
The position of the State Employment Relations Board
(SERB) as stated in the Defiance case answers an entirely different
question that the one posed to this arbitrator.
SERB decides alleged violations of ORC 4117.
Arbitrators decide violations of collective bargaining agreements. During the hearing counsel for the Board objected to
the introduction of the Probable Cause Finding of SERB.
This arbitrator sustained that objection because the finding of
SERB was not relevant to deciding the application of the collective
bargaining agreement. The
same is true here. SERB found
that the Defiance Board did not violate ORC 4117 by failing to bargain
with the employee organization. There
is no question of failure to bargain before this arbitrator. The Board also cites various sources explaining the
limitations on the authority of the arbitrator.
Specifically the Goodyear Tire and Rubber case reminds arbitrators
that they do ‘not sit to dispense his own brand of industrial
justice.” This arbitrator agrees even though this premise might
work against the best interest of the Board.
Clearly under an “industrial justice” theory I might be
persuaded that a return to the “status quo” would be fair but that is
not the question before me in this grievance. Thus we come to the crux of this issue.
Does the existing past practice “trump” the language of the
collective bargaining agreement in 7.051? Part of the answer turns on whether or not the language is “clear and
unambiguous.” If one reads
only those specific words: “there
shall be two (2) breaks per day [fifteen (15) and ten (10) minutes], one in the morning and
one in the afternoon, for staff working at least seven (7) hours per
day” then that seems pretty clear. But collective bargaining agreements are
seldom written at one sitting. They
are a compilation of different sections written in different years by
different negotiating teams. The
task of an arbitrator is to attempt to clarify what is the collective
effect of all the language as it applies to the instant grievance. The Board does have this thorny problem
of dealing with the language earlier in the section which states: “which includes breaks stated elsewhere herein”.
An agreement that is totally clear and unambiguous does not have
relevant language included that has no application. Even if the language were as clear as the
Board would have this arbitrator believe, there is still the question of
its meaning within the context of the entire agreement. Arbitrator
Johnathon Dworkin in a case dealing with a Cost of Living Adjustment
offered these
thoughts: “The
Union's arguments persuade the Arbitrator that an award in this dispute
cannot properly stand on the literal meaning of Section 18 alone. The
essence of any contract is its intrinsic agreement -- its meeting of the
minds. As the Company argues, many arbitrators (including this one) follow
the principle that evidence of intent is irrelevant when a provision is
clear and unambiguous. In most instances, this is a prudent and reliable
precept which assures that an arbitral decision will remain faithful to
the governing contractual language. However, mechanical contract reading
does not always reflect the underlying meeting of minds. Language is an
inexact means for communicating intention. When an apparent conflict
exists between mutual intentions and the words of an agreement, it is not
always appropriate for an arbitrator to give determinant force to the
words and wholly ignore the meaning. An award based upon language without
substance runs the risk of revising the true collective-bargaining
relationship.” (81 LA 1124)
Elkouri and Elkouri How
Arbitration Works Firth Edition, States:
“Under certain circumstances
custom and past practice may be held enforceable through arbitration as
being in essence a part of the parties’ “whole” agreement.”
Page 630.
Elkouri lists three proper uses of Past
Practice. 1.
To
provide the basis of rules governing matters not included in the written
contract. 2.
to
indicate the proper interpretation of ambiguous contract language, or 3.
to
support allegations that the clear language of the written contract has
been amended by mutual action of agreement representing the intent of the
parties to make their written language consistent with what they regularly
do in practice in the administration of their labor agreement.”
While the parties to this proceeding have
clearly stated their positions on the first two, I must also give
consideration to the third. Arbitrator Arthur T.
Jacobs: A union-management
contract is far more than words on
paper. It is also all the oral understandings, interpretations and mutually acceptable habits of action which have
grown up around it over the course of
time. Stable and peaceful relations between the parties depend upon
the development of a mutually satisfactory superstructure
of understanding which gives operating significance and practicality
to the purely legal wording of the written contract. Peaceful
relations depend, further, upon both parties faithfully living up to their
mutual commitments as embodied not only in the actual contract itself
but also in the modes of action which have become an integral 1 part of it. [Coca Cola Bottling Company, 9 LA 197, (1947)]
Arbitrator Marlin M. Volz: [I]t is
well recognized that the contractual relationship between the parties
normally consists of more than the written word. Day-to-day practices
mutually accepted by the parties may
attain the status of contractual rights and duties, particularly where they
are not at variance with any written provision negotiated into the contract
by the parties and where they are of long standing and were not
changed during contract negotiations. (Metal Specialty Co. 39 LA 1265
[1962]} Arbitrator Whitley P. McCoy: Custom can, under
some circumstances, form an implied term of a contract. Where the Company has
always done a certain thing, and the
matter is so well understood and taken for granted
that it may be said that the contract was entered into upon the assumption
that the customary action would continue to be taken, such customary
action may be an implied term. [Esso Standard Oil Co., 16 LA 73 (1951)] Arbitrator Maurice H. Merrill: In the light of the
[arbitration] decisions, * * * it seems to me that the current of opinion
has set strongly in favor of the position that
existing practices, in respect to major conditions of employment,
are to be regarded as included within a collective bargaining contract, negotiated after the practice has become established and
not repudiated or limited by it. This also seems to me the reasonable
view, since the negotiators work within the frame of existent practice
and must be taken to be conscious of it. (Phillips Petroleum Co., 24 LA
191 p1955]) Arbitrator Dallas L. Jones
stated in 1967 “”It is generally accepted that certain, but not all,
clear and long standing practices can be established conditions of
employment as binding as any written provision of the agreement [Alpena
General Hospital, (50 LA 48)]
The Supreme Court of the United States in
one of the Steelworker Trilogy Cases, stated:
The labor arbitrator’s source of law is not confined to the
express provisions of the contract, as the industrial common law—the
practice of the industry and shop—is equally a part of the collective
bargaining agreement although not expressed in it.” (Steelworkers v. Warrior & Gulf Navigation Co., 80 S.Ct.
1347, 1351-52, 46 LRRM 2416, 2419 [1960]).
I understand the position of the Board in
this matter. They believe
that if the Association is going to try to force them to change a long
standing past practice regarding the use of permanent substitutes, then it
is only fair for them to eliminate the long standing past practice of
providing breaks for 6.5 hour employees.
The way to change this twenty three year
old practice is at the bargaining table.
As stated previously, the issue of the
substitutes is not before me thus I cannot rule on it.
I can rule on this particular matter.
I find, for the reasons herein stated that the Board has violated
the collective bargaining agreement by eliminating breaks for 6.5 hour
employees. AWARD:
The
grievance is granted. REMEDY:
All affected employees shall be provided
two daily breaks at the same level they were prior to the December 13
memorandum. Employees
eligible for breaks during the period of December 13, 2004 through the
period until the breaks are reinstated shall be compensated on a pro rated
basis, at their regular rate of pay for the time they were denied breaks.
The arbitrator will retain jurisdiction
for ninety (90) days for the sole purpose of resolving any disputes which
might arrive over the determination of amounts of payment due. Issued
at London, Ohio this third day of January, 2006. __________________________
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