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Title: Portage County Board and Portage County Educators Association
Date: January 3, 2006
Arbitrator: 
N. Eugene Brundige
Citation: 2006 NAC 134

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
[Breaks Grievance]

 

APPEARANCES:
FOR THE ASSOCIATION:
Beth Chandler-Marks, Staff Representative
Kathy Imler, Registered Service Associate
Betty Whitacre, Registered Service Assoc.
Linda Forte-Legg, Registered Service Assoc.
FOR THE BOARD:
Ron Habowski, Esq.
Charles Holden, Superintendent
Philip Miller, Director Adult Srvs.
Patrick R. Macke, Dep. Sup

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.

  • The collective bargaining agreement in section 7.051 contains specific language which states:  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.”

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.

__________________________
N. Eugene Brundige, Arbitrator

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