In re
Village of
Romeoville
and
Combined Counties Police Association
117 LA (BNA) 1392
Arb. Case No. 01/027
July 19, 2002
Elliott H. Goldstein, Arbitrator.
The issue to be resolved in this matter is:
Did the Employer violate Article XVIII, Section 18.8 B of the Agreement, when it refused to pay certain officers, who worked on the Friday preceding a holiday that fell on Saturday, holiday pay?
And, if so, what shall the remedy be?
The grievance is hereby denied in its entirety, as set forth more fully hereafter.
Article XII—Grievance Procedure—Arbitration
If the grievance(s) remain(s) unadjusted the Association may, within thirty (30) calendar days from the receipt(s) of the Village Manager's Step 3 findings, file a written notice requesting binding arbitration between the union and the Village of Romeoville. If the parties are unable to mutually agree upon an acceptable arbitrator, the American Arbitration Association or the Federal Mediation and Conciliation Service, whichever is chosen, shall be requested to provide a list of seven (7) arbitrators. The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the provisions of this agreement. He/she shall only consider and make a decision with respect to specific issues submitted by the Village and the Association and shall have no authority to make any decision on any other issue not so submitted. The arbitrator shall be without power to make a decision contrary to or inconsistent with, any applicable laws. The arbitrator shall not in any way limit or interfere with the power, duties or responsibilities of the Village under statutory law and applicable court decisions. The arbitrator's decision shall be final and binding.
Article XVIII—Section 18.8—Holidays
The following, and any other days that may be designated by the Village, are holidays for members of the bargaining unit: “Veterans'Day”.
Those members of the bargaining unit who are
scheduled to work on a holiday as listed will receive eight (8) hours pay for
the holiday at their regular rate of pay. Those members of the bargaining unit
who are scheduled to work on a holiday listed shall be paid two and one-half (2
1/2) times their regular rate of pay for the entire time worked.
If an officer works the holiday, but fails to report
to work on the regularly scheduled shift immediately prior or following the
holiday, he shall not be entitled to premium pay for the holiday unless his
absence on the shift before of after the holiday is excused by the Chief of
Police.
B. When a holiday falls on a Saturday, the holiday
will be observed on the preceding Friday for those officers not scheduled to
work on Saturday and when the holiday occurs on a Sunday, the holiday will be
observed on the following Monday for those officers not scheduled to work on
Sunday.
Factual Background
A. Introduction
The only witness who testified at the hearing was Employer witness Chief of Police, Andrew J. Barto. Barto testified that he has been with the Police Department since 1972 and became Chief of Police in 1992. He stated that the Police Department operates on a 24/7 schedule for the uniformed patrol officers. However, the 23 detectives and juvenile officers in the Police Department normally do not work weekends.
Barto testified that Section 18.8 of the Agreement identifies which days are paid holidays, as well as the rate of pay that an officer will receive for each holiday when he/she works the holiday or does not work the holiday.
Additionally, Employer witness Barto testified that the Employer's Police Department has had a contract with the Union since 1985. He stated that the language of Section 18.8 B. was implemented in the 1985-86 contract as Article XI, Section 5(b), and, other then its Article and Section designation, the language that was negotiated into the 1985 Agreement has never been modified in any subsequent contract changed, nor has the Union ever raised the issue of the intent of Section 18.8 B. at any negotiations for a successor Agreement. Barto points out that in Employer Exhibit 1, page 14, there is a notation next to the language that is currently in the Agreement as Section 18.8 B. Barto further testified that this notation was made on December 16, 1985 by Robert Stark, the Chief of Police at the time the 1985 Agreement was negotiated. The handwritten notation reflects that Union President John Jarecki agreed with Stark that the language currently contained in Section 18.8 B. was to be applied to those officers who were “normally scheduled off on weekends i.e. detectives”, etc. Barto also indicated that Stark told him about the negotiated intent of the Section 18.8 B. language because Barto was responsible for scheduling the workforce.
Since its implementation 16 years ago, Section 18.8 B. has been applied only to officers who are assigned to positions that are normally scheduled off on weekends and who do not normally work any holidays, such as detectives and juvenile officers, according to Employer witness Barto. Section 18.8 B. has never been applied to the uniform patrol officers, Barto stated. The Employer has paid holiday pay pursuant to the intent of Section 18.8 since 1985, and, until the present grievance, the Union has never filed a grievance requesting that uniform patrol officers be paid holiday pay under Section 18.8 B, he concluded.
Veterans'Day, a holiday under Article XVIII off the Agreement, fell on Saturday, November 11th, in calendar year 2000. Five police officers, all members of the bargaining unit, were scheduled to be off on Saturday, November 11th, the day of the holiday, and they worked November 10th, the Friday preceding the holiday. The Union claims that, under Article XVIII, Section 18.8 B, the officers who worked Friday November 10th are entitled to holiday pay as set forth in Section 18.8 B.
The Employer refused to pay these officers the requested holiday pay, stating that Article XVIII, Section 18.8 B. is meant to apply only to officers who are assigned to positions that are normally scheduled off on weekends and who normally do not work holidays.
The Union filed a timely grievance, alleging that the Employer had violated Article XVIII, Section 18.8 B of the Agreement when it refused to pay holiday pay to those officers who scheduled off on the Saturday of the actual holiday, yet worked the preceding Friday. The grievance was properly processed through the Grievance Procedure contained in the Agreement. The Employer denied the grievance, stating that it had not violated the Agreement when it refused to pay certain officers holiday pay under Article XVIII, Section 18.8 B, because that Section of the Agreement is meant to apply to officers who are assigned to positions that are normally off on weekends and who normally do not work any holidays. The Union filed a timely demand for arbitration.
It is upon these facts that the case came before me for final resolution.
The Contention of the Parties
A. The Employer
The Employer argues that 16 years past practice exists that should not be upset by the present grievance. The parties negotiated Section 18.8 B. in 1985. At the time of those negotiations, the intent of that language was understood and agreed to by the parties, as indicated in a handwritten notation in the original Agreement, written by the Chief of Police who negotiated the Agreement. That clear intent is that Section 18.8 B. only applies only to officers who are normally scheduled to be off weekends, such as detectives and juvenile officers, and does not apply to the uniformed patrol officers. Even though the Union was well aware of the application of Section 18.8 B for the past 16 years, it at no time sought to modify Section 18.8 B. in any successor Agreement, nor did the Union ever file a grievance seeking holiday pay under Section 18,8 B. for any uniformed patrol officer. Now the Union, after 16 years, claims that the language of Section 18.8 B does not mean what the parties agreed that it meant when it was originally negotiated.
Further, the Employer argues that if the Unions interpretation of Section 18.8 B. is accepted then Section 18.8 A. is swallowed up by Section 18.8 B.
The Union argues that the language of the Agreement is plain and unambiguous, and represents exactly what the parties bargained for in negotiations. The words of the Agreement have to stand for what the parties intended when they negotiated the Agreement. Therefore, regardless of any past practice or expressed verbal intent between the parties at the time the language was negotiated, the application of Section 18.8 B, must mean that when a holiday falls on a Saturday, all employees who are not scheduled to work that Saturday would observe the holiday on the preceding Friday because that is what the clear written language of Section 18.8 B says.
And, under the jurisdictional restrictions put upon the Arbitrator by Article XI of the Agreement, the Arbitrator must sustain the grievance. Therefore, all employees who were not scheduled to work Saturday, and did work the Friday preceding the Saturday holiday, would be entitled to holiday pay of two and one-half times their regular hourly rate of pay for the entire time worked, as set forth in Section 18.8.
I have carefully considered all of the testimony and evidence presented at the arbitration hearing, as well as the oral arguments made by the parties.
The facts in this case are basically undisputed between the parties. There is no question that the language of Section 18.8 B. is clear and unambiguous, I note. However, the undisputed evidence presented by the Employer calls into question the intent of the parties concerning the application of Section 18.8 B. First, there is the testimony of Chief of Police Barto that the intent of Section 18.8 B. was established at the time that the language was initially negotiated into the Agreement in 1985. Barto points to a handwritten notation in the Employer's copy of the 1985 Agreement, made by the Employer's chief negotiator, that, the Employer asserts, establishes Section 18.8 B. was limited only to those members of the bargaining unit that normally do not work weekends, i.e. detectives, juvenile officers. According to the Employer, this proves that the uniform patrol officers, all of whom can be scheduled to work weekends, since the Employer's operation is 24/7, are excluded from the application of Section 18.8 B. While the Union expressed incredulity at the Employer's timely finding of this evidence, it was unable to bring into question the credibility of Chief Barto.
Second, there is the undisputed evidence that, for the past 16 years, the parties have applied Section 18.8 B. in exactly the fashion that the Employer indicates the negotiators intended for it to be applied when the language was negotiated into the Agreement in 1985. The Employer asserts, and the Union does not disagree, that for 16 years Section 18.8 B. never applied to uniform patrol officers, and only applied to those officers who normally did not work weekends, like detectives. Furthermore, the undisputed evidence shows that, in all the negotiations that took place during this 16-year period, the Union never once raised the issue of the application of Section 18.8 B., nor did it ever attempt to change the existing language. Finally, the Union, prior to the present grievance, has never filed a grievance claiming that Section 18.8 B. had application to other then officers that normally did not work weekends.
The Union argues forcefully that the language of Section 18.8 B. is clear and unambiguous; that, since the language does not specifically exclude any classification of officer it must be applied to all officers regardless of classification; and that, because the language is clear and unambiguous, Section 18.8 B. cannot be altered by any past practice. The Employer argues, equally as forcefully, that there has been a 16-year existing past practice establishing that Section 18.8 B. only applies to officers who normally do not work weekends; that the intent of the parties that Section 18.8 B. applies only to officers who normally do not work weekends is established by a written notation by the negotiator who originally negotiated the Section 18.8 B. language; and the fact that the Union has never attempted to change the application or language of Section 18.8 B. in negotiations or through the grievance procedure is a clear indication that the Union was aware of the true intent of the Section 18.8 B.
As a general matter, it is true that an arbitrator cannot ignore clear-cut contractual language. It is also true that there is no need for interpretation unless an agreement is ambiguous. Thus, while custom, practice and evidence of contract negotiations are used very frequently to establish the intent of contract provisions which are so ambiguous or so general as to be capable of different interpretations, they ordinarily will not be used to give meaning to a provision which is clear and certain. See, Elkouri & Elkouri, How Arbitration Works, Ch. 9 “Standards for Interpreting Contract Language”. See also Kennecott Copper Co., Ray Mines Division, 70-2 ARB Sec. 8849 (Abernathy, 1970). This principle is so fundamental that it is applied by arbitrators “even though the results are harsh or contrary to the original expectations of one of the parties.” Dell E. Webb Corp., 48 LA 164, 166 (Koven, 1967). See also, Caribe Circuit Breaker Co., 63 LA 161 (Pollock, 1974); Tribune Star Pub. Co., 62 LA 544 (Belshaw, 1974); and Purex Corporation, Ltd., Turco Products Division, 70-2 ARB Sec. 8661 (Traynor, 1970).
However, there is an alternative theory, one based on the finding that the disputed contract section was in fact unambiguous. It relies on the canon of contract interpretation that permits, under narrowly defined circumstances, unambiguous contract language to actually be amended by a later, inconsistent practice. See, Louisiana Pacific Corp., 79 LA 658, 664 (Eaton, 1982). As Arbitrator William Eaton suggested in Louisiana Pacific Corp., supra at 664: “In ascertaining the true intent of the parties ... the Arbitrator is obliged to follow the most recent expression of intent,” which may be “the practice not the written language.” See also, Hercules Products, Inc., 81 LA 191, 193 (Goodman, 1983). Under the most liberal principles of contract interpretation overwhelming proof of the scope and duration of the practice in changing a term of the contract is necessary, I note.
Last, I
recognize that it has generally been accepted that in order to be considered a
mutually binding practice sufficient to amend unambiguous language, a “course
of conduct” must meet stringent standards. These standards have been variously
expressed, but, in all cases, the evidence must generally establish:
1. Knowledge: Both parties must be aware of the nature of
the conduct alleged to constitute a practice.
2. Longevity and Repetition: The practice must be readily
ascertainable over a “reasonable period of time.”
3. Mutuality: The evidence must establish that “both parties have by their conduct mutually agreed, in effect, to modify or amend the written agreement.” Immigration &Naturalization Service, 78 LA 842, 847 (Kaplan, 1982) (emphasis in original).
The undisputed evidence here proves the parties, by their conduct, have amended the Agreement, and their conduct overrides the clear and unambiguous language of Section 18.8 B., I find. There is significant evidence that the Union was aware of the fact that Section 18.8 B. only applied to the detective department, and, in fact, the Union had explicitly agreed to amend Section 18.8 B of the Agreement to apply only to officers in the detective division. The first evidence of this explicit agreement between the parties is provided by the written notation in the 1985 Agreement. The most recent expression of this explicit intent to amend is contained in the November 21, 2000 letter from the Union to Chief Barto, in which the Union states:
If union members are to be held to the letter of the contract, so shall the administration. The administration cannot use the contract for its own purposes and ignore it whenever it suits them, claiming `intent'or `management rights'. The contract is a binding “agreement on BOTH sides, not merely that of the union—something the administration either fails to see, or simply disregards.
Clearly, this language indicates a change in the attitude of the Union concerning the interpretation and application of Section 18.8 B. Next there is the fact that Section 18.8 B. has been applied in conformance with the explicit agreement between the parties for 16 years with the knowledge of the Union and without any protest from the Union, either during negotiations for successor Agreements or through the grievance procedure.
There is, therefore, on the record sufficient evidence of the Employer's unilateral action inconsistent with the Agreement, and evidence of an explicit mutual prior agreement or understanding to amend the contract through a 16-year past practice, I so hold.
Even under the circumstances set forth herein, some arbitrators would find that the language of the Agreement must still control the outcome of the present grievance. However, all arbitrators would say that the Union is not allowed to ambush the Employer by suddenly insisting on an interpretation of Section 18.8 B. that has not been imposed on the Employer for 16 years. Even if I were to find that the Union is correct, and the language of Section 18.8 B. requires that officers other than those who are normally off on weekends are entitled to holiday pay if they work the Friday before the holiday, the Union is required to give the Employer notice that, after 16 years, it is going to insist that Section 18.8 B. be enforced before it can claim that this Section of the Agreement has been violated and can file an effective grievance, I so hold. My award follows.
For the reasons set forth above, and incorporated herein as if fully rewritten, the grievance is hereby denied in its entirety.
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