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THE CITY OF WASHINGTON, OHIO
FRATERNAL ORDER OF POLICE,
OHIO LABOR COUNCIL, INC.
116 LA (BNA) 686
FMCS Case No. 01/13235
November 10, 2001
Gregory P. Szuter, Arbitrator, selected by parties through procedures of the Federal Mediation and Conciliation Service
A police officer subpoenaed to testify in a criminal trial about matters arising out of his official duties is seeking pay for waiting time while he was on call by use of a pager. The grievance raises concerns of the labor agreement and federal law as it may apply to that agreement.
The Grievance form states:
Employer City of Washington
Address 130 N. Fayette St.
Phone No. (740) 636-2370
Grievance Report Form
Name of Grievant Ptl. Ron Shackelford Badge No. 12
Article and Section number of contract violation —Article XX, Section 20.1
Statement of Grievance On April 23 and 24 of 2001, Ptl. Ron Shackelford appeared by Asst. Pros. Sheri Barton that he would possibly be needed to testify hat afternoon. Ptl. Shackelford was instructed that he would be called or paged to return to court. Ptl. Shackelford made contact with Interim
Chief Jon Long and asked him how he wanted Ptl. Shackelford to fill out his overtime sheet, since his activities were being restricted by this standby status. Sgt. Jon Long made a call to the court and was unable to contact Sheri Barton. Sgt. Jon Long advised Ptl. Shackelford to carry his pager and respond to it if paged. Ptl. Shackelford advised Sgt. Jon Long that this still restricted his activities and he felt that he should be compensated for it. At approximately 1436 hrs. on 4/23/01 Ptl. Ron Shackerford made contact with Sgt. Jon Long requesting to know if the court still needed him and if he could be released from standby status to leave town. Sgt. Jon Long released Ptl. Shackerford from duty at that time.
On 04/24/01 at 0900 hrs., Ptl. Ron Shackelford again appeared in common pleas court to testify in the same case. Ptl. Shackelford was advised that the court would have the City's dispatcher call or page him when they needed him to testify today. At approximately 1440 hrs. Ptl.
Shackelford received a call from J/D Wood that the court would need him for testimony on 04/25/01 between 1000 hrs. and 1030 hrs.
Ptl. Shackelford's time was restricted due to court obligations resulting from his duties of a police officer. Ptl. Shackelford was instructed by Interim Chief Jon Long to carry a pager and respond to it.
Ptl. Ron Shackelford requests for overtime were denied by Sgt. Jon Long.
Ptl. Shackelford should be compensated for his restricted activity on the two dates listed above.
Grievant's Signature____________________ Date and time 4/30/01 1225 hrs
The letter serving as the Step 1 answer of Sgt. Long, Interim Chief, for the Employer dated April 30, 2001 rejected the grievance. The grievance advanced to Step Two which was on May 1, 2001 was answered by Safety Director Stritenberger rejecting the same. The grievance advanced to Step Three which was answered by City Manager Sobers on May 22, 2001 rejecting the same. Thereafter, the Union timely appealed the grievance to be heard in arbitration under the Collective bargaining agreement.
The Grievance cites alleged violations of Article XX (Court Time). That and other applicable provisions are as follows:
ARTICLE XX COURT TIME
Section 20.1 . Whenever a bargaining unit member employee is required by the Employer or by the proper legal authority of any Municipal, County, State or Federal Court to appear before such court on off-duty time for matters pertaining to or arising from the employee's official duty, the employee shall have all time spent at the location of the court counted as hours worked during the work period in which the court appearance occurs. In the event of an appearance in an out of county court or commission, travel time to a nd from court or commission shall count as time spent at the court of commission. This Article shall not apply in instances where an employee is required to appear in any civil action in which the City is not a party to such action.
Section 20.2 . In the event that such court appearance is less than two (2) hours in duration, the employee shall have two (2) hours time paid at the overtime rate of one and one-half (1-1/2) times his regular hourly rate.
ARTICLE XXVII SEVERABILITY
Section 37.1 . This agreement supersedes and replaces all pertinent statutes rules and regulations over which it has authority to supersede and replace. Where this Agreement is silent, the provisions of applicable law shall prevail. . . .
ARTICLE XII GRIEVANCE PROCEDURE
Section 12.4 . The arbitrator shall limit his decision strictly to the interpretation, application, or enforcement of specific Articles on this Agreement. The arbitrator shall not have the authority to add to, subtract from, modify, change or alter any of the provisions of this Agreement, nor to add to, subtract from or modify the language therein in arriving at a determination of any issue presented that is properly within the limitation expressed herein.
The arbitrator shall expressly confine himself to the precise issue(s) submitted for arbitration and shall have no authority to determine any other issue(s) not so submitted to him or submit observations or declarations of opinion which are not directly essential in reaching the determination.
* * *
The decision of the arbitrator shall be final and binding on the grievant, the FOP and the Employer. The arbitrator shall be requested to issue his decision within thirty (30) calendar days after the conclusion of testimony and argument or submission of final briefs.
The parties did not agree to a joint statement of the issue and requested the Arbitrator frame the issues for decision from the record as a whole. So framed, the issue for decision is:
Did the Employer violate Article XX of the parties' labor agreement when it refused to pay Grievant for 3 1/2 hours on each of two consecutive days while he awaited a call for a court appearance by means of a pager and if so what shall the remedy be?
The Union's position is that the denial of Ptl. Shackelford's requests for overtime pay was a violation of the labor agreement Article XX, Sec. 20.1, and of Federal law. The Union argues that Ptl. Shackelford's time was restricted due to court obligations resulting from his duties as a police officer. He had been instructed by Interim Chief Jon Long to carry a pager and respond to it, thus limiting his ability to travel to a restaurant in Wilmington where he planned to watch a sports game and consume alcoholic beverages with a friend. On the following day he was prevented from sleeping before his regular shift. He was limited in his movements to a brief exit from his home for a job related purchase.
The Union asserts that Ptl. Shackelford is entitled to “standby” pay for his time spent waiting to testify by the Employer's request. The Office was subpoenaed to testify and subject to penalties, including criminal if he did not. Section 20.1 permits pay for travel time to court and the testimony itself. Waiting to testify is necessary for his official duties for the Employer and should be paid.
Article XX of the Collective Bargaining Agreement implicitly requires the Employer to pay for stand-by time. The Fair Labor Standards Act is implied in the contract. Federal statutory rights are implied in the contract unless they are specifically negated. State ex rel. Ohio Assn. Of Pub. School Emp./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of 2000), 89 Ohio St.3d 191. Article XXXVII of the Collective Bargaining Agreement states that applicable law shall apply where the contract is silent.
The Fair Labor Standards Act requires the employer to pay the Grievant for “standby time” distinguished from “on call” time. The latter may under some circumstances be refused. Grievant was restricted to remain close to the court and could not use his time as he wished. The Employer's reliance on 29 C.F.R. 785.17 is misplaced because it confuses “on call” time (time away after leaving contact information) with “standby” time (where the employee is engaged to wait). Also 29 C.F.R. 553.221 requires pre shift time to be paid. Standby time to testify is analogous. Under 29 C.F.R. 551.431(a)(2), all hours outside of the Grievant's regular tour of duty in which he is required to standby are subject to payment of overtime under the FLSA. The Union cited: Skidmore v. Swift &Co., 323 U.S. 134[ 4 WH Cases 866 ] (1944), Decided Dec. 4, 1944, Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 [ 4 WH Cases 293 ] (1944), Decided March 27, 1994, Armour & Co. v. Wantock, 323 U.S. 126 [ 4 WH Cases 862 ] (1944), Decided Dec. 4, 1944, and Renfro v. City of Emporia, 729 F.Supp. 757, 29 WH Cases (BNA) 1049, 114 Lab. Cas. P 35, 332 (D. Kansas, 1990).
The Employer's refusal to pay Officer Shackelford for stand-by time creates a public safety risk. The officers are forced to sacrifice time that would be spent sleeping, enjoying non-work related activities, or exercising to prepare for their on-duty time as police officers. Under the Employer's theory, the Officer must provide services as directed and necessary for the prosecution of the criminal case and City need not give anything in consideration. The Officer may conceivably wait for days at a time during hours exclusive of their regular tour of duty until paged to come in and testify.
Federal law, and the contract, prohibit the Employer from refusing to pay its employees simply because it doesn't want to, or doesn't think it has to. The Employer is required to pay Mr. Shackelford for time spent on stand-by until he is called to testify in court for cases arising out of his employment. The FOP requests the Employer pay the full seven hours of work time at time and a half for the work performed by Mr. Shackelford on April 23 and April 24, 2001.
E. Positions of the Parties: the Employer
The Employer's position is that it properly applied the language identified in Section 20.1 of the parties' labor agreement, and that the Grievant was justly compensated for his time spent in court. The contract states that an officer would be paid for his off duty time spent at court appearances. The language in the contract clearly provides that the officer will only be paid for “time spend at the location of the court.” No provision in the labor agreement provides for “standby” pay nor has there been any negotiations on this issue. The Grievant should be excluded from “standby pay” because he was free to pursue personal activities to his own benefit while he was to await a call as a witness.
The Union's reliance on Federal law is not a matter to be considered by the arbitrator. Enforcement of Federal law is for the Department of Labor. Although this issue is not one of Federal law, the Employer had properly followed the law in compensating the Grievant for his actual time spent in court. The Department of Labor has taken the enforcement position that waiting for a duty call via a pager is not normally compensable time. According to prior case law the Employer is not in violation of the FLSA. Bright v. Houston Northwest Medical Ctr ., 30 WH Cases 609 (CA 5, 1991), Halferty v. Pulse Drug Company Inc., 29 WH Cases (BNA) 273 (CA 5 1989) and Paniagua v. Galveston, Texas, 1 WH Cases2d (BNA) 865 (CA 5 1993) and Berry v. County of Sonoma, 2 WH Cases2d 299 (CA 9, 1994). Several arbitration cases were also cited: City of Waterville — 107 LA 1194 (Arb 1996), City of Wayzata, Minn., 92 LA 664 (Arb 1989) Robert C. Harrity v. State of Delaware, Department of Services for Children, Youth and Their Families, C.A. No. 96A-07-13-HLA, (Superior Court of Delaware, New Castle, Decided January 10, 1997) 1997 Del. Super, Lexis 6.
Waiting time is not compensable here because Grievant was waiting to be engaged. The waiting time to be compensable must be predominantly for the Employer's benefit. Officer Shackelford was free to go about his usual activities with a minimum of restriction on activities for his own benefit.
The Union has failed to show that the Employer improperly applied the contract to the situation at issue. The Union infers that it is unfair that the employees are paid for appearance at court and not waiting to be called to court. Such an inference of unfairness has no merit as an argument when the contract clear on its face, there is no bargaining history and no other provision applicable. The Union has failed in its burden of proof that the Employer's interpretation was improper, arbitrary, or capricious . The Employer requests that the grievance be denied.
In June of 2000, Grievant, Officer Ron Shackelford, discovered the body of a dead female in the course of his official duties. Officer Shackelford was subpoenaed to Washington's court house for the criminal prosecution that developed out of that event. The subpoena included the entire week of April 23, 2001.
The parties were in negotiations over a new labor agreement from November 2000 to February 27, 2001. The Union made a proposal for court time payments which was as eventually agreed upon as Article XX. No other proposals were made concerning “standby” time for testimony by any of the negotiation teams. The agreement went to fact finding and a recommendation was issued which was timely accepted by both sides on April 13, 2001. Part of the recommendation was Article XX providing a method for payment of court time.
On April 23, 2001, ten days later, at approximately 9:00 a.m., Mr. Shackelford appeared at the Common Pleas Court in the court house in Washington. He was one of seven officers subpoenaed for the homicide case. Because he discovered the victim's body, his testimony was to be first for the State. He was, like the others, advised by Fayette County Assistant Prosecuting Attorney Sheri Barton that he may be needed to testify in court after the seating of the jury and opening statements. He was told his testimony was expected on the afternoon of that day. The Grievant was instructed by Ms. Barton that he would be telephoned to appear for court.
April 23, 2001 was a scheduled day off for Mr. Shackelford. He had originally made plans to travel to neighboring Wilmington on April 23, 2001, to watch a sporting event at Damon's Restaurant with a friend. It is 20 miles distant from Washington Court House.
When he was informed that his testimony might be needed that day, he contacted his supervisor, Sgt. Long, who was acting as Interim Chief at the time. Grievant asked about filling out an overtime authorization sheet because he was waiting for a call from the court. Sgt. Long said no overtime was due. He also told Grievant to carry his pager in order to respond to court if needed. Because Officer Shackelford was the handler of department canine officer who lived with him, he was one of the few members of the department that had a pager issued to him for regular use. Grievant specifically mentioned his plan to go to Wilmington and asked when he needed to refrain from alcoholic beverages. Interim Chief Long advised the Grievant that he could go out of town anywhere he pleased if he took the pager and did not consume alcohol.
The other officers were told by Sgt. Long to be available at a telephone because they did not have pagers. They were to testify sometime after Officer Shackleford.
Officer Shackelford canceled his plans to go to the restaurant notwithstanding Sgt. Long's encouragement. This was at least in part due to the prohibition on social alcohol use and in part due to expectation of an early call from the court. The distance was not a factor. Officers could be called from Wilmington by page or telephone with sufficient time for court attendance or other purposes. Sgt. Long had even encouraged him to go there. It was also brought out that many officers reside in towns at least as distant as Wilmington and were subject to call by the City.
From 11:00 a.m. to 2:30 p.m., Officer Shackelford waited at home in Washington, Ohio with his pager in case he was called to testify. Grievant left his home in at some point during the day and encountered Sgt. Long. Grievant was going to a store three miles from his home to buy a shade for the doghouse of the canine officer. He testified that he left the house for a total of 20 or 25 minutes. Grievant carried the pager with him to the store.
After several hours of waiting, he called Sgt. Long to inquire about his possible court appearance and to inquire whether he could be released to leave the city. Interim Chief Long told him he would not be needed that day in Court.
On April 24, 2001, the Grievant appeared at court still under subpoena to testify in Fayette County Common Pleas Court. Court officers informed the Grievant that he would be contacted by telephone or paged if he was needed to testify.
That day, Officer Shackelford was scheduled to work the evening shift so he had planned to sleep during the day. Instead, he spent the day at home, waiting with his pager. Since he had to monitor the pager and be able to respond within a reasonable amount of time, he could not go to sleep from 11:00 a.m. to 2:30 p.m. At approximately 2:30 p.m. Grievant received a call from a City of Washington police dispatcher that he would be needed for testimony on the next day, April 25, 2001, between 10:00 a.m. and 10: 30 a.m. He then slept, and later reported to work, and worked his entire shift that evening.
On April 25, 2001, Officer Shackelford did testify in court. He received the court pay required by the contract for that appearance.
On April 25 and April 30, 2001, Grievant submitted requests for overtime payment for three and one-half (3 1/2) hours on each of the days of April 23, 2001 and April 24, 2001, for “standing by for common pleas court to call for testimony.” Interim Chief Long denied the Grievant's overtime requests.
None of the other officers involved in the case requested such pay. Safety Director Stritenberger's letter indicates that the city had not paid officers while waiting to be called to the court to testify in the past. Neither is there record of “standby pay” in the bargaining history. The Employer's consultant says that it made determination that standby pay was not owed in reliance on several Wage and Hour Administrator Opinion Letters.
On April 30, 2001, the Grievant filed the instant grievance, claiming that he should receive overtime payment for the “time [he] was restricted due to court obligations resulting from his duties of a police officer.” The grievance was denied at all levels. (Grievant did receive two hours of court pay for the date of April 23, 2001, and two hours of court pay for the ten minutes he spent there on the date of April 24, 2001 and two hours for April 25, 2001 when he did testify.) A notice of intent to arbitrate was thereafter timely filed on May 22, 2001. The grievance was heard in arbitration on August 14, 2001.
Among the fundamental duties of an officer is to appear in court. He is the official witness for the public in most criminal cases. Court time is regular and routine consequence of good policing. Despite being such an integral part of the police process, there is no past record of any officer receiving standby pay while waiting to be called to testify. There is no record of negotiations over standby pay.
Section 20.1 authorizes pay for a court appearance of an officer if it is as a result of his official duties in a criminal case (or a civil case where the City is a party) and only while he is on court premises. For each appearance he is paid for all time at the court with a minimum of two hours pay at time and one half. There is no provision for any pay in Article XX or elsewhere for paying officers who are waiting to be called to testify from a location other than the court. Grievant was paid for the ti mes he reported to the court house for scheduling on April 23 and 24 and for testimony on April 25. If Section 20.1 does not require more, there has been no breach according to its terms.
The Union agrees that Article XX is silent on standby pay as the Employer also asserts. However, the Union says that in the absence of any standby provision, the contract expects the law to apply. The Employer says that since the contact is silent that is meaningful and there is no basis to interpret into the agreement the terms of the Federal law.
The liability theory of the Union is that the Agreement has been breached by the non-payment of standby pay that the Union claims is due under Federal law in the Fair Labor Standards Act. The Union says that Article XX, which not explicitly sanctioning the payment of FLSA standby pay, ought to be read as incorporating the Federal right to standby pay and should not be read to negate that right.
If extrinsic law assists in interpretation, or where a party suggests an illegal result by a particular application, an arbitrator may take external law into effect. The expedition is to determine whether the parties have agreed to have the arbitrator decide such statutory claims by reference to the terms of the agreement or whether the effect of the agreement is contrary to law.
The arbitrator's jurisdiction here is:
Section 12.4 . The arbitrator shall limit his decision strictly to the interpretation, application or enforcement of specific Articles on this Agreement.
Therefore, the FLSA must have some bearing on the interpretation or the application or the enforcement of the Article XX for it to be considered positively.
The Union claims that the FLSA is incorporated into the agreement either by Article XXXVII or Article XX.
Article XXXVII, Severability, does not incorporate the FLSA or any statute, expressly or implicitly:
Section 37.1 This agreement supersedes and replaces all pertinent statutes rules and regulations over which it has authority to supersede and replace. Where this Agreement is silent, the provisions of applicable law shall prevail. ...
Section 37.1 states that the silence of the agreement leaves the statutory scheme in tact. Even assuming that Section 37.1 includes the Federal statutory scheme, that section does not give the arbitrator jurisdiction to decide matters under the FLSA. It merely states that the preexisting statutory scheme is unaffected by the Agreement, not that the scheme becomes part of the Agreement. Stating that the Agreement does not supplant the statute does not mean the same as the statute has become a contractual requirement.
The other means to imply the FLSA standby requirements into the Agreement is Article XX itself. If Article XX Court Time includes “standby” time, the DOL/FLSA authorities would be interpretative aids. While cited by each party to different purpose, the authority on FLSA standby pay is a single body of learning. Based on those authorities the Union asserts that the restrictions placed on Officer Shackelford are so great as to render his waiting time compensable. The Employer argues that the restrictions are not so great on personal freedom as to render the wait compensable. To determine if Article XX includes standby time implicitly, first standby time will be examined. Next Article XX will be juxtaposed to it.
1. Fair Labor Standards Act Standby Authorities
The cases set out the dichotomy of “waiting to be engaged” and “engaged to be waiting.”
Engaged to be waiting refers to a situation where the freedom of the employee is so restricted that he should be compensated. Waiting to be engaged is where the idle time is primarily to the employee's benefit and not compensated unless actual work is performed. Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U.S. 590 (1944), Decided March 27, 1944, held that paid work need not be productive but merely of primary benefit to the employer. That is the classic case of underground miners being paid for travel below ground which is necessary to perform their functions. Skidmore v. Swift & Co., 323 U.S. 134 (1944), Decided Dec. 4, 1944, held that firefighters who stayed overnight three to four nights per week were to be compensated despite their relative freedom within the firehouse to do many activities including sleep and eat. They were engaged to wait. Similarly Armour & Co. v. Wantock, 323 U.S. 126 (1944), Decided Dec. 4, 1944 was a case of a fire guard service in a manufacturing plant. Employees punched in and out on a regular shift but remained overnight until a relief shift of 24 hours. The on-premises time was used sleeping eating and pursuing other amusements provided by the employer. The Court held all on-premises time was compensable.
“Readiness to serve may be hired, quite as much as service itself...Whether time is spent predominantly for the employer's benefit or for the employee's is a question dependent upon all the circumstances.”
In the 1980's the Department of Labor considered a number of situations in Wage and Hour Division, Letter Rulings. The September 21, 1985 Letter Ruling, in Q&A format, addressed the query about a police officer who stands by for court testimony by leaving his telephone number. This was not compensable even if the officer was told to refrain from alcohol.
The use of a pager has no different result according to the December 1987 Letter Ruling involving firefighters on call by use of a pager but otherwise free to use their time. The September 1, 1988 Wage and Hour Letter Ruling had to do with pagers used to summon firefighters for emergencies. The opinion states compensability of on call time depends on whether the frequency of the calls prevent the employee from personal activities. See also W&H Letter Ruling March 12, 1987 . Factors like not being required to remain at home also support finding the on call time is not restrictive. W&H Letter Ruling September 16 1987 .
However, deputy sheriffs who must report immediately in uniform and fire fighters who must wait dressed able to respond in 10 minutes, subject to discipline, have been both held to be restrictive. cf. W&H Letter Rulings September 4, 1987 March 11, 1987 respectively.
Applying the DOL standards, later cases trended toward to finding less restrictions and so less pay. Although confined to home overnight five days a week, a non-emergency ambulance dispatcher was not compensated for inactive time while waiting to be engaged because she was free to pursue personal activities. Halferty v. Pulse Drug Company Inc., 29 WH Cases (BNA) 273 (CA 5 1989).
“[T]he critical issue in determining whether an employee should receive compensation for idle time is whether the employee can use the time effectively for his or her own purposes.” Id. At 276
An employee need not have the same degree of freedom or flexibility as he would if he would not have been on call.
“[E]lse all or almost all on call time would be working time, a proposition that the settled case law and administrative guidelines clearly reject. * * * We have found no unreversed decision holding compensable on call time that afforded even nearly as much freedom for personal use as did Brights'. Had the twenty to thirty minute “leash” been longer, Bright would, of course, have been able to do more things, wholly for his own private purposes.” Bright v. Houston Northwest Medical Ctr., 30 WH Cases 609 at 614 (CA 5, 1991).
Bright was an hospital equipment repair technician who had to respond by means of a pager within 20 minutes and had to refrain from alcohol use. His waiting was held not compensable. The court noted that employees who received compensation for idle time have had almost no freedom at all. Id. 613
Somewhat contrary to these cases is Renfro v. City of Emporia, 729 F.Supp. 757, 29 WH Cases (BNA) 1049, 114 Lab.Cas. P 35, 332, (D. Kansas, 1990), where the firefighters on call via pagers outside the station subject to 20 minute response time. Finding the employees were “engaged to wait,” they were compensated because the benefit of the restriction was predominantly the city's. The frequency of the calls was the distinguishing fact, 3 to 5 calls within 24 hours. The court distinguished other cases where the on call time was unpaid were ones where the probability of the call (and disruption of the employee' s time) was minimal.
Berry v. County of Sonoma, 2 WH Cases2d 299 (CA 9, 1994) applied the tests developed by other cases on this issue to coroners who had to respond to pagers within 15 minutes by telephone but who could trade shifts and otherwise pursue personal activities. The two issues that predominate are 1) the parties' contact, and 2) the degree of restriction on the employee during waiting.
The first issue is whether the parties' agreement indicated that waiting time is, or is not, work time based on whether it compensates on call time in any way. The two hour pay minimum for responding to a call was held to show the parties agree that actual work, not call waiting time, was the work engaged.
On the second issue, the court examined several factors. 1) Whether the functions performed while waiting are similar to work time activities; 2) Whether response time is unduly restrictive; 3) Whether the use of pagers ease restrictions; 4) Whether on call employees can trade responsibilities, i.e. freedom to refuse a call; 5) Whether geographical restrictions are excessive; 6) Whether employees actually engaged in personal activities—not whether they were prevented from so doing; and 7) Whether the frequency of the calls restricted the employees. With only one factor (#7) indicating restriction and none of the others the court found the call time was not compensable.
Arbitral authority is not as well developed. City of Wayzata, 92 LA 664 (Arb. Fogelberg, 1989) is very similar to the instant case factually. There the police officer had been subpoenaed to testify in two separate cases, both on his off day. On the first date he was told to carry a pager and he refused and offered to stay by a telephone which was agreed by the chief. On the second he was told to use a pager when he left home. The one sentence contract, also Article XX, stated the officers would be on call or on standby and receive 1/2 hour pay for each such hour so spent. The chief refused the pay request under this article and the grievance was arbitrated. The City's position that the County Attorney, not the Chief, require the testimony. The arbitrator found the officer was given specific instructions that altered his otherwise free time. Being required to use a pager or telephone and to respond within an hour the officer was “essentially confined.”
In City of Hollywood 82 LA 48 (1983), cited in and distinguished by Wayzata, the officer was ordered to remain at home pending call to testify under a call out provision. The arbitrator did not apply the standby clause because it was limited to wait time after 11:00 am on court days but he did order payment under a call back clause.
Both are thinly supported compared to the considerations used by the DOL and the courts in the standby cases. Both also predate the DOL Letter Rulings. More importantly, they reflect an entirely different age of telecommunications. In the early 1980's pagers were luxury items. Now they are so ubiquitous that they are nearly replaced by cellular telephones. No weight can be given to such old windows on the workplace as these cases.
County of Ventura 91 LA 107 (Arb. Knowlton, 1988) is marginally helpful. There a social worker on standby for overnight calls by re-arrangement with the county responded to a call for assistance by telephone to arrange child care. All the functions were performed at home by telephone and by record keeping activities. The contract provided standby pay of 1/4 hourly rate and call back pay of time and one half but did not explicitly address the telephone service of social service clients. The past practice was that call back pay was for in person services with a social services client and telephone work from home was standby pay. The arbitrator upheld that understanding and concluded that it was not contradictory to the DOL positions on call back and on call time. Call back is for services that are not prearranged while standby is prearranged. Further, contractual pay for wait time may be different than the DOL requirements.
2. Article XX and FLSA
There is no reference in the Agreement to “standby” or “call in” or similar references to “waiting to be engaged” as used in the DOL/FLSA authorities in Article XX. The parties' “court time” article is a “call back” type of provision, not a “standby” type of provision. That is, the pay is for activities performed after a call, not before the call. The call (i.e. subpoena) was answered and then the authorized order was then given to wait by the prosecutor and the Interim Chief.
The function to be performed after reporting to the court was to wait via a pager. Thus Article XX can be interpreted to require compensable standby time. This is obvious where the officer is ordered to wait at the court location. Article XX would clearly compensate for all such waiting. That scenario, however, is not the only possible engagement to wait after being called to court. The present case is another such. The Union's theory of liability asks whether this case is a situation that should have been compensated. Was the waiting here waiting to be engaged or engaged to be waiting?
Engaged to be waiting requires a finding of almost no freedom at all. Bright at 613-14. That is clearly not the case here. For example, the court found it would have been error to have found the employee was engaged to be waiting where the employee used a pager that had a geographical range of 30 miles. Paniagua v. Galveston, Texas, 1 WH Cases2d (BNA) 865 (CA 5 1993). Therefore, Officer Shackleford was waiting to be engaged.
Waiting to be engaged is not automatically compensable under the FLSA. The factors to consider are the agreement of the parties and the degree of restriction on the employee (i.e. whether the restrictions predominantly benefit the employer). The Arbitrator will apply the Berry case methodology.
The first issue cuts against the Grievant. The express terms of Article XX is that the pay shall be for activity at the location of the court. Waiting elsewhere is not to be compensated by its terms even if waiting elsewhere is the engaged function. Thus, the parties' agreement indicates that standing by, away from the premises of the court house in Washington, is not considered work time. The two hour pay minimum in the agreement also shows the parties agree that the act of attendance, not the waiting, was the work engaged.
The parties' agreement, although important, is not conclusive. See Berry and Renfro . A city's agreement to pay for standby time of employees who were unrestricted in their activities was not held to be conclusive that the city was obligated to pay for standby time. Paniagua v. Galveston, Texas, 1 WH Cases2d (BNA) 865 (CA 5 1993).
The second issue is the degree of restriction on the employee. The sub-issues are founds follows:
1) Whether the functions performed while waiting are similar to work time activities . They are not. Officer Shackleford was at home for all but 20 minutes during his wait on April 23 and home the whole period on April 24. Whatever he did at home is not on the record but is inferable as not similar to what he does as a police officer.
2) Whether response time is unduly restrictive . It was not. He lives near the court house so the response time is not a factor. Sgt. Long told him he could go to Wilmington which is 20 miles distant or about 20 to 40 minutes away. If he needed 20 minutes to return to Washington, plus more time to ready himself, it is not restrictive. The authorities found no restriction with lesser response times.
Whether the use of pagers ease the restrictions . It does. There is less restriction on Officer Shackelford than the other officers who did not have pagers and who had to rely on a telephone. The other officers had to wait until after he testified since he was to be first. Their wait was longer and likely the communications more limited. Regardless of the comparison to other officers, today, pagers are not restrictive:
“Being able to use a pager, the coroners are not restricted to areas with a telephone or two way radio. As result we conclude the coroners use of pagers eases restrictions while on-call and permits them to more easily pursue personal activities.” Berry at 305.
4) Whether on call employees can trade responsibilities, i.e. freedom to refuse a call. Officer Shakelford could refuse the call to testify only at the risk of sanctions under the law, contempt or other criminal penalty. This was not disputed. Whether he would have been susceptible to discipline was asserted but not corroborated to a persuasive effect. Nonetheless, the criminal sanction is sufficient restriction on freedom as to find this factor in favor of the Grievant.
5) Whether geographical restrictions are excessive. They are not. Sgt Long specifically agreed that Grievant could go to the restaurant in Wilmington, some 20 miles away. He even said Grievant could “go anywhere” as long as he answered the page. This makes the range of the pager the effective geographic limit. There was no evidence that the pager range is at all restrictive.
6) Whether employees actually engaged in personal activities — not whether they were prevented from so doing . What Grievant actually did while waiting was to be at home. The only evidence of an affirmative that he performed was the purchase of equipment for the canine officer living at his house. This was an elective action in that it could have been performed at any time. The equipment was a doghouse shade and so was somewhat of a luxury purchase for that officer. This was effectively a personal activity in view of the elective nature of the excursion and the item. Even if it were not, the trip took 20 to 25 min utes also suggesting the elective nature of it. Attention to the canine officer's needs and whims at home are not any more for the benefit of the Employer than any other personal time for that purpose. It is found to be personal activity on April 23, 2001. The other activities of the Grievant at home are only that he was actually there. All else that the record shows is that he did not sleep, and did not use alcohol, and did not go to Wilmington. As the Berry case stated, prevention of activities is not the focus of the test but what the employee actually did. Officer Shackleford was actually at home doing what people do at home or shopping, both typical personal activities.
7) Whether the frequency of the calls restricted the employee. It did not. There was only one call expected. None of the cases suggest that one call is a restrictive amount. Indeed, it is only one call in a 48 to 72 hour period. That is not at all restrictive.
Thus, one factor (#4) of the seven suggests restriction under the Berry methodology. This in combination with the finding that the agreement demonstrates that waiting was not considered work by the parties suggest that the standby time ordered after Officer Shackleford was called to service at the court house is not compensable under Article XX. FLSA standby time where the person is engaged to wait after being called to court, may be implied in Article XX such as where an officer waits at the court house all day for his call to testify. However, waiting to be called to court f rom elsewhere via a pager is not the agreed waiting time and is not so restrictive as to be compensable. Article XX has not been breached.
The second prong of the Union's liability theory is that the Agreement ought not be applied to the facts here so as to negate the statute. By extension this means that since standby pay has not been found due under Article XX, then the practical effect (application) is that the Agreement must have negated the statute which the Union is not permitted under Ohio law. In other words, denial of standby pay here under Article XX conflicts with the statute and is an unlawful application of the Agreement.
The law is clear in Ohio that statutory rights cannot be “negated” by terms of a collective bargaining agreement without specific expression of intent to do so. State ex rel. Ohio Assn. Of Pub. School Emp./AFSCME, Local 4, AFL-CIO v. Batavia Local School Dist. Bd. of Edn (2000), 89 Ohio St.3d 191. This holding developed from the conflict between collective bargaining agreements authorized under one statute (R.C. Chapter 4117) and the provisions of other statutes. That conflict was to be harmonized by R.C.4117.10(A) 1 which provides that Chapter 4117 Agreements preempt state and local laws except 1) where there is no agreement, and 2) where the Chapter 4117 Agreement does not specifically deal with the matter covered by such state or local laws. The Batavia School District case applied this provision in holding that a Chapter 4117 Agreement did not specifically negate the statutory tenure rights of employees when the Agreement granted the Board the power to abolish positions. In the public sector, the collective bargaining agreement builds not on a legal vacuum as in the private sector, but a thicket of preexisting statutory provisions. Batavia can easily be seen as a finding that, without a Chapter 4117 Agreement, job abolishment could not be sanctioned by the tenure statutes, so no worse a result for employees should be inferable under such an agreement unless their representatives expressly waived the protection of the statute.
Here Article XX has not negated any statute. It is not an express waiver of the standby pay obligations under the FLSA. Under consideration in Batavia were statutes of state and local origin, not as here, a Federal statute. R.C. 4117.10(A) pertains to state and local ordinances, preventing them from being “negated” by the agreement absent the requisite conditions. A Chapter 4117 Agreement cannot negate a Federal statute's effectiveness. This is also apparent from Section 37.1:
Section 37.1 . This agreement supersedes and replaces all pertinent statutes rules and regulations, over which it has authority to supersede and replace .
The Agreement is conscious of the limitation of RC 4117.10(A) to state and local law and acknowledges some laws are beyond its power to supersede. While some of these may be state and local laws, Federal law is clearly in that category. Thus, Article XX does not and cannot negate the FLSA. By agreeing to Article XX, the negotiating parties have not waived any requirements under the FLSA.
The consequences of this are in the conjunctive. Either this application of Article XX left the FLSA in tact and self enforcing by its usual mechanisms as the Employer argues, or the application of Article XX operates as a waiver of the FLSA standby requirements which cannot be permitted under Batavia . The Arbitrator finds the former.
In an interest arbitration, the arbitrator decided against the Union's proposal for one and half time premium pay for standby and for the city's proposal of less. So doing, the Arbitrator stated that it is not the role of the arbitrator to determine whether the contract standby time is the same as the standby time found compensable by the Department of Labor. City of Waterville, 107 LA 1194 (Arb. Dichter, 1996).
Article XX is not applied here as a waiver of FLSA standby pay regulations. Rather it is found that while it is may be an independent source of those obligations by implication, they do not apply here since contractual standby obligations need not be the same as statutory ones.
Since there is no breach of the express terms (Part I) nor with the terms implicit in Article XX (Part II) there is no remedy due. Because the Union has challenged the application of the agreement based on the statute that cannot be the end of the question. At the very least, enforcement jurisdiction of the arbitrator pertains to remedy. Article XX may be interpreted to include FLSA standby pay but in denying standby pay in the circumstances does not negate the statute. If the agreement does not conflict with the statute, what if anything should be done to give the statute effect?
Batavia held that a Chapter 4117 Agreement could not negate statutory rights absent specific waiver. It proceeded to declare the rights to tenure of the displaced employees under the statute notwithstanding the right of the Board to abolish positions under the Chapter 4117 Agreement. In so doing the majority had the counsel of the dissenters who, while generally agreeing with the merits, preferred arbitration. By ignoring the suggestion of arbitration and declaring the statutory issue, the court, effectively gloss ed its holding with the rejection of arbitration. Hence, the statutory claims that are not negated by a Chapter 4117 Agreement, and which survive collective bargaining, are to be decided by courts not arbitrators. Statutory rights that are not negated by the agreement are not enforceable by arbitration.
Upon the record taken as a whole, the Arbitrator makes the following award as the full, final and binding settlement of all the issues presented in this arbitration.
The Arbitrator finds for the City of Washington and against the Fraternal Order of Police, Ohio Labor Council, Inc. The Employer did not violate Article XX of the parties' labor agreement when it refused to pay Grievant for 3 1/2 hours on each of two consecutive days while he awaited a call for a court appearance by means of a pager and no remedy is justly due under the Agreement. The Grievance is denied to the extent described above. The fees and expenses of the Arbitrator and all costs of the hearing shall be divided equally between the parties.
This is the full and final and binding settlement of the claims presented in this arbitration.
1 R.C. 4117.10(A) states in part:
“An agreement between a public employer and an exclusive representative entered pursuant to this chapter governs the wages, hours, and terms and conditions of public employment covered by the agreement. * * * Where no agreement exists or where an agreement makes no specification about a matter, the public employer and public employees are subject to all applicable state or local laws or ordinances pertaining to wages, hours, and terms and conditions of employment for public employees. * * * [T]his chapter prevails over any and all other conflicting laws, resolution, provisions, present or future, except as otherwise specified in this chapter or as otherwise specified by the general assembly.”
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