Deviation pay – holding: Management violated the bargaining agreement when it denieddeviation pay,” which is a premium for duty at a major special event, when on Sep. 11, 2001 some officers received deviation pay and others did not. 

 

Arbitration Award

 

In re

City of Columbus, Ohio

and

Fraternal Order of Police

Capital City Lodge No. 9

 

November 24, 2003

 

119 LA (BNA) 299

 Michael A. Paolucci, Arbitrator

 

Grievance and Question to be Resolved 

 

The following grievance was filed on September 18, 2001, and is the pertinent subject matter of this dispute. 

 

Provision(s) of Contract allegedly violated: 22.4 (A) & (B)—Deviation Pay 

14.1 Rules and Directives

 

Statement of the Grievance and relevant facts:

 

During the above dates, the Division implemented a partial Phase II Mobilization plan. In many instances, this major event called for members to work hours that deviated from their regular duty hours by more than two hours and per Contract Article 22.4 (A) & (B)—Deviation Pay, entitled those members to deviation pay for those hours deviated. These affected members however had their requests for deviation pay under this Article disapproved at the direction of Acting Chief of Police Gary Thatcher. 

 

Additionally, there were other members, who in certain instances, had their requests for deviation pay approved at the direction of Acting Chief of Police Gary Thatcher. This disparity that involves paying members differently is a violation of Article 14.1 Rules and Directives. 

 

Relief Requested:

 

Pay deviation to all members who, during this event, had their regularly scheduled duty hours deviated by more than two hours. 

 

The question to be resolved is whether the City violated the Agreement when it refused to pay deviation pay for all bargaining unit members who had their duty hours deviated during the period of September 11 through September 13, 2001; and if so, what should the remedy be? 

 

Cited Portions of the Agreement 

 

The following portions of the Parties’ Collective Bargaining Agreement, hereinafter “Agreement”, were cited: 

 

Article 14 — Work Rules and Division Directives

14.1 Rules and Directives. 

 

The City agrees that, to the extent possible, work rules shall be reduced to writing and provided to all members in advance of their enforcement. Any charge by a member that a work rule or Division Directive is in violation of this Contract, or has not been applied or interpreted uniformly to all employees, shall be a proper subject for a grievance. The City shall provide the Lodge with copies of any revised or new work rules and Division Directives in advance of their intended effective dates.

 

Article 22 — Hours of  Work and Overtime

Section 22.1 Definitions 

 

(A) The work week shall consist of forty (40) hours based on five (5) consecutive eight (8) hour workdays and two (2) consecutive days off or four (4) consecutive ten (10) hour workdays and three (3) consecutive days off. The wage ranges prescribed in the pay plan for the respective ranks are based upon a workweek of forty (40) hours and a workyear of two thousand eighty (2,080) hours. 

 

(B) For purposes of this Article 22, the term “workday” means a regularly scheduled work time assigned in any twenty-four (24) hour period beginning at 6:00 a.m. . . . 

 

Section 22.4 Deviation Pay. 

 

(A) Any deviation from a member’s workdays or hours of a day as found on the Division’s time sheets shall require the Division to pay any member so assigned at time and one-half (1˝) for every hour of deviation on a workday or for work required on the member’s first regularly scheduled day off and double time for work required on the member’s second regularly scheduled day off except as follows: 1) deviations from workdays or hours of a day as a result of DAG-wide training needs, the sergeant candidates basic training course, and/or the basic detective training course with twenty-one (21) days prior notice; 2) as a result of a member’s request; 3) as a result of changing shifts where there is a continuous twenty-four (24) hour-per-day operation and/or a continuous seven (7) day per week operation; and 4) when a member is on restricted duty and is reassigned to another shift due to work availability. Further, premium rates do not apply when a member’s work hours are deviated from by two (2) hours or less. 

 

(B) The parties agree to continue the practice of combining deviation pay and overtime for major special events (e.g., Red, White & Boom, OSU/Michigan football game). [Example: if a member works a twelve (12) hour shift (12:00 p.m. to 12:00 a.m.) (and his regular shift is 3:00 p.m. to 11:00 p.m.), he/she is paid deviation for 12:00 p.m. to 3:00 p.m., straight time 3:00 p.m. to 8:00 p.m., and overtime 8:00 p.m. to 12:00 a.m.] 

 

(C) With the exception of paragraph (B) herein if the Division intends for the member to work his/her regular shift and the member is called in or works overtime prior to the start of the regular shift, deviation will not apply unless prior notice is given as outlined in paragraph (D) herein. [Example: If a member is called in or works an overtime assignment other than his/her regular shift, his/her work hours will not be deviated other than call-in or overtime assignment as a regular course of business. However, if a member has an appointment/meeting scheduled at a time outside his/her regular shift, the supervisor may deviate his/her regular tour of duty with prior notice {see paragraph (D) below}]; 

 

(D) Deviation will only be instituted at the order of a supervisor with prior notice by the end of the previous regular shift or twenty-four (24) hours prior notice whichever is less (see paragraph (C) preceding). 

 

(E) Any decisions to deviate hours should be based on a balance of the legitimate needs of the Division and the impact on the member’s life. 

 

The following portions of the Parties’ Memorandum of Understanding, entered in June, 1998, hereinafter “MOU,” were cited: 

 

C. (2) Regarding the understanding of the parties with respect to deviation pay as provided in Section 22.3(B) of the Contract, the parties agree: 

 

(a) To continue with the practice of combining deviation and overtime for major special events (i.e., Red, White & Boom, OSU/Michigan football game). [Example: if a member works a 12-hour shift (12p-12a) (and his regular shift is 3p-11p), he/she is paid deviation for 12p-3p; straight time 3p-8p; and overtime 8p to 12a]; 

 

(b) With the exception of (a) above, if the Division intends for the member to work his regular shift, and the member is called in or works overtime prior to the start of the regular shift, deviation will not apply unless prior notice is given as outlined in C(2)(c). below. [Example: If a member is called in or works an overtime assignment other than his/her regular shift, his/her work hours will not be deviated to include the call-in or overtime assignment as a regular course of business. However, if a member has an appointment/meeting scheduled at a time outside his/her regular shift, the supervisor may deviate his tour of duty with prior notice [see (C)(2)(c) immediately following)]; 

 

(c) That deviation will only be instituted at the order of a supervisor with prior notice by the end of the previous regular shift or twenty-four (24) hours prior whichever is less. [See (C)(2)(b) immediately preceding]; and ... 

 

The following portions of the Parties’ predecessor Collective Bargaining Agreement, hereinafter “Past Agreement”, were cited: 

 

Section 22.3 Overtime 

 

(B) Any deviation from a member’s workdays or hours of a day as found on the Division’s time sheets shall require the Division to pay any member so assigned at time and one-half for every hour of deviation on a workday or for work required on the member’s first regularly scheduled day off and double time for work required on a member’s second regularly scheduled day off and double time for work required on the member’s second regularly scheduled day off except as follows: 1) deviations from workdays or hours of a day as a result of DAG-wide training needs with twenty-one (21) days prior notice; 2) as a result of a member’s request; 3) as a result of changing shifts where there is a continuous twenty-four (24) hour-per-day operation and/or a continuous seven (7) day per week operation; and 4) when a member is on restricted duty and is reassigned to another shift due to work availability. Further, premium rates do not apply when a member’s work hours are deviated from by two (2) hours or less. 

 

Factual Background 

 

The Employer is the City of Columbus in charge of providing, among other services, a police safety force for its citizens’ protection; certain of its patrol officers are represented by the Union. The Grievance involves pay for work that occurred immediately following the events of September 11, 2001. 

 

Overtime is paid at the rate of time at one and one-half (1˝) for work in excess of eight (8) hours in a day or forty (40) hours in a week. Double time is paid if an employee is required to work on his second day off. Other than these two (2) types of pay that is outside the normal hourly wage rate is Deviation Pay. Deviation Pay has been part of the Agreement since at least the immediately prior Agreement. Deviation Pay is included in the prior Agreement, as cited above, and requires pay at the rate of time and one-half (1˝) for certain hours that an employee is required to work. 

 

This Deviation Pay would be applied even if the employee did not work any overtime under eight (8) hours per day, forty (40) hours per week. Thus if an employee is regularly scheduled for a 3:00 p.m. to 11:00 p.m. shift, but is changed to work from 7:00 a.m. to 3:00 p.m., then he is paid eight (8) hours at one and one-half (1˝) times his regular rate. Again, no overtime has been worked, but the employee’s regular shift has been “deviated” from. In addition, if the employee with the 3-11 regular shift is ordered to work from 11:00 a.m. to 7:00 p.m., there would only be four (4) hours of Deviation pay and four (4) hours of regular pay. This is due to the fact that only half of the mandated shift is deviated from the regular shift. Finally, if the employee is required to work 11:00 a.m. to 11:00 p.m., the pay is four (4) hours each of Deviation, regular, and overtime. The overtime is paid at double time and would be the last four hours of the shift because more than eight (8) hours of time has been worked in one shift. 

 

This method of pay is how the language in the prior agreement was administered. However, because of some inconsistency in how bargaining unit members were being paid under the provision, a committee was formed to clear up the inconsistencies. The problem would occur when a new supervisor would begin and some officers would receive a large pay out for working special events such as the OSU/Michigan football game or the Red, White & Boom Festival (a Fourth of July City-wide public celebration). The City cited situations where officers would be required to report early, would be paid Deviation Pay for the first four (4) hours (time and one-half); then straight time for four (4) hours; and then overtime for the last four (4) since the employee had worked more than eight (8) hours in a day. 

 

The City advised the Union that it wanted to be able to call in officers early, before the start of their regularly scheduled shift, without having to give Deviation Pay. The Committee met throughout 1997 and 1998 to discuss the inconsistencies. Although the Union would not agree completely with the City’s proposal, it did agree that such could be avoided as long as advance notice was given to the bargaining unit member. The Agreement that was reached in September 1998 became the MOU 98-1, cited above. It modified the Agreement as it pertained to Deviation Pay. The MOU was incorporated into the most recent Agreement as Article 22. 

 

The MOU also memorialized a practice of the Parties as it pertained to Deviation Pay. The Parties had traditionally made an exception for “major special events.” The MOU recognized this exception and included specific times when the Deviation Pay would not occur—the OSU/Michigan football game and the Red, White & Boom festival. In both cases, the entire police force is mobilized to provide security services for the large crowds that attend the events. The MOU also included “catch-all” language that recognized that certain special events would be treated the same as those specifically listed and gave the City flexibility in avoiding Deviation Pay for other major special events. The Parties cited two (2) other major special events where there was no dispute that Deviation Pay should not be given: an African-American Heritage Festival and a Trade Summit held at the Columbus Convention Center. 

 

On September 11, 2001, for lack of a better description, the United States came under attack in New York City, Washington D.C., and a rural area of Western Pennsylvania. Due to the seriousness and unidentified nature of the attacks, nearly every governmental agency in the country mobilized its safety forces in preparation for any other similar type occurrences. The City and its police force were no exception. All employees on the job were forced to stay past their regularly scheduled shift. Off-duty officers were called in early. Some officers, upon hearing of the attacks, reported to work voluntarily. 

 

The City instituted a Phase II mobilization. A Phase II mobilization is described as “an incident requiring the call-in of all personnel from the oncoming shift.” It is only exceeded in importance by a Phase III mobilization which is “an incident requiring Division-wide mobilization. Cancellation of vacations and days-off are necessary.” As part of the mobilization, all patrol officers were assigned twelve (12) hour shifts. The order to mobilize and work the twelve (12) hour shifts lasted for two (2) days—from September 11 through September 13, 2001. First shift officers were assigned to work their normal shift plus four (4) hours of overtime at the end of their shifts, Second shift officers were assigned to various security details around the City. Third shift officers were assigned to work their normal shift, but were brought in early to work four (4) additional hours before the beginning of their shift. 

 

After the schedule returned to normal on September 14, 2001, officers submitted payment requests for overtime and deviation pay. The City refused deviation pay for first and third shifts. First shift officers were paid regular time for the first eight (8) hours, and then overtime for the last four (4). Third shift officers were paid eight (8) hours straight time plus four (4) hours of call-in pay at time and one-half for the four (4) hours before their regularly scheduled shift. Because second shift officers worked a myriad types of shifts, Deputy Chief Thatcher reviewed each time slip individually to determine the most equitable way to pay those officers. Deviation pay was found appropriate for some, but not others. The testimony was that second shift patrol officers who were released and sent home before completing their normal tour of duty received Deviation Pay. Included in this group were some Research and Development Units and some Police Net Unit officers. 

 

Some police officers were ordered to come in four (4) hours before their regular shift began. Some bargaining unit members were paid Deviation Pay for the first four (4) hours worked. Some of these were paid the four (4) hours of Deviation Pay even if they did not work their entire regular shift, having left on the eleventh (11th) hour of what had become a twelve (12) hour shift. Other employees who actually worked the twelve (12) hour shift did not receive Deviation Pay even though they completed what had become a twelve (12) hour shift. The Union claimed that as a result of this inconsistency, the employees who worked the eleven (11) hour shift, and who received the Deviation Pay for the first four (4) hours, made more money than those who worked the full twelve (12) hour shift. 

 

The Union demanded that all officers who reported for work more than two (2) hours prior to the regular start time should receive Deviation Pay because the September 11, 2001 events were a “major special event.” For the same reason, albeit inverse, because the City did not characterize it as a “major special event” it claimed that Deviation Pay was not required.

 

The matter was grieved, was processed through the steps of the grievance procedure, and ultimately was appealed to arbitration hereunder. 

 

Contention of the Parties 

 

Union Contentions 

 

The Union argues that the events of September 11th, and the mobilization from September 11 through September 13, amount to a “major special event.” It asserts that the language implied from the City’s interpretation, such as “preplanned, anticipated, or scheduled” are words that do not appear anywhere in the Agreement. Since the language only references “major special events,” then the Union asserts that it is the only source for meaning that should be referenced. 

 

The Union contends that since the term is not given explicit definition in the Agreement, then the words must be given their ordinary meaning. It cites definitions for each term as contained in a dictionary for meaning that any event that is unusual, or distinguishable should qualify as “special.” It argues that the term “major” refers to any event that is greater in dignity, rank or importance. If the event is notable, or considerable, it argues, it is major. 

 

The Union asserts that the best evidence of its interpretation being correct is the City’s having paid some of the affected police officers Deviation Pay. Since the City never claimed that those officers were paid in error, then it argues that the only error is not paying all officers the same. It argues that none of the reasons given for this differing treatment is logical or rational and should be rejected. Indeed, it asserts that if this was not a major special event, then none of the officers could or should have been paid Deviation Pay. Since some were, it claims, then all should have been. 

 

The Union asks that, if any ambiguity is determined to exist, then the language must be interpreted against the City as the drafter of the provision. It claims that the City’s attempt to include modifiers in the language, such as pre-planned or scheduled, should be dismissed since the City failed to include those words when it drafted the provision. Since the language, as drafted, contains a general “catch-all” provision; and since nearly every witness save one agreed that the specific exceptions were not exhaustive, then it argues that September 11th must be included under the catch-all language. 

 

The Union rejects the City’s claim that the length of an event somehow affects its character as a major special event. It cites both the Heritage Festival and the U.N. Trade Summit as multi-day events thus negating the City’s claim that the duration of the twelve (12) hour shifts, lasting from September 11 through the 13th, somehow affected the special nature of the event. Finally, the Union argues that the twenty four (24) hour notice provision are inapplicable. It contends that the terms of Section 22 make paragraph B control; that notice being provided means that Deviation Pay will be made; and it asserts that paragraph B does not have a twenty four (24) hour exception that would make the City’s position correct. 

 

For all these reasons, it asks that the Grievance be sustained; that Deviation Pay for September 11 through 13, 2001 be paid; and that all officers so affected by the mobilization be paid at the Deviation Pay rate mandated by Section 22 of the Agreement. 

 

City Contentions 

 

The City argues that the events of September 11th, and the mobilization from September 11 through September 13, did not amount to a “major special event.” The distinction it makes is that “special” events are preplanned, designated, anticipated, or scheduled. It argues that the intent of the benefit is to pay officers who are forced to work hours outside their normal schedule. It asserts that this does not include situations where an officer must work additional hours at the beginning or end of the regular shift. It contends that when an officer is forced to report for work early, call-in pay is the appropriate benefit. Similarly, it argues that when an officer is forced to stay later than scheduled, then overtime is the correct benefit. 

 

The City argues that the intent of the MOU was to limit the practice of combining Deviation Pay with Overtime on special major events. It argued that the Parties intended major special events to be the two (2) listed in the Agreement. It asserts that the language is only intended to prevent Deviation Pay whenever an officer’s shift is extended. It concedes that Deviation Pay applies if an officer’s shift is changed, but if a shift is extended then the language does not allow the benefit. 

 

The City allowed that for purposes of fairness, the language has been extended to other events that fit into the category of “major special events.” However, notwithstanding the extension of the list, it points out that the testimony of the Labor Relation Manager, Jim Campbell, proved that the list in the Agreement was intended to be exhaustive. Indeed, it contends that the language’s use of the Latin abbreviation “e.g.” was incorrectly typed and should have read “i.e.” It argues that the Union interpretation extends the definition of a “major special event” to any Phase II mobilization. It argues that the language was only intended to apply to the two (2) specifically listed situations and asserts that the Union’s extension of the benefit runs counter to the purpose of the MOU and the Parties’ discussions. 

 

The City argues that the major special event provision is only to be applied to pre-planned events that occur annually. This is in concert with the City’s need to be able to plan for the cost of Deviation Pay—something that is impossible under the Union’s interpretation that would make every emergency a potential Deviation Pay payout. It argues that even if the language was not intended to include a Phase II mobilization, the examples given are in no way comparable to the September 11th situation. Unlike September 11, the two (2) contractually cited examples are patriotic festivals and sporting events; they occur annually; they are pre-planned; and they are events. In contrast, it argues that September 11th was not an event, it was a response to an event. 

 

The City contends that the Union improperly cited Section 14.1 as being violated. It asserts that the provision has no relevance and asks that it be dismissed as a valid basis for the Grievance. Since no work rule was cited as being violated, then it contends that there is no reason to determine whether the City failed to give notice of same. 

 

For these reasons, the City asks that the Grievance be denied. 

 

Discussion and Findings 

 

A review of the record reveals that the Grievance must be sustained in part. The basis for this finding is that the City granted Deviation Pay to a portion of the second shift who were affected by the events of September 11, 2001. Since there is no discernible difference between those officers on the second shift and the remainder of the workforce, then the issue as presented to the undersigned, forces the finding that September 11, 2001 was a special event. 

 

The foregoing case presents a potentially difficult series of issues that would have to be resolved in order to reach a final determination. There are a series of ambiguous contract provisions; preceded by confusing language in predecessor documents; and submitted to the undersigned with a fact pattern that is, hopefully, unique in the experience of labor relations. Notwithstanding these potentially difficult issues, the City resolved the main issue itself when it determined that at least some of the second shift officers qualified for Deviation Pay. This determination resolves the underlying issue by itself. 

 

The underlying issue is whether the events of September 11, 2001 fall within the same category of “special events” as contemplated by the Parties when they negotiated both the MOU and the new language in the current Agreement. As noted, the resolution of this issue contains potentially difficult questions. However, without dispute, the City determined that some of the second shift officers on the force should receive Deviation Pay. It did this applying the exact same language that is at issue. It determined that Deviation Pay was required for some second shift officers; it determined that such was required because their normal shifts were deviated from; and it determined that such was required as a direct and proximate result of the events of September 11, 2001, that caused it to schedule all officers for twelve (12) hour shifts. 

 

Based on this decision of the City, it becomes impossible to parse the first and third shifts from those officers on the second shift. If Deviation Pay is a potential based on the fact that September 11, 2001 was a special event, then it must be so for the entire bargaining unit. There was nothing in the record that would support treating the second shift different than all other union members. Absent that showing, the finding that September 11th was a special event becomes unavoidable. The only reason the second shift was paid deviation pay was due to their deviated shift; which in turn was due to the events of September 11th. It follows that if the second shift received deviation pay due directly to changed shifts because of September 11th, then the remainder of the bargaining unit deserves the same treatment. 

 

This finding does not resolve the issue for each member of the bargaining unit. There are other factors that must be considered in determining whether deviation pay should be made. The only finding hereunder is that September 11th was a special event. Where that finding has previously prevented higher pay for some employees, it should no longer be used as an impediment. However, where employees are not deserving of deviation pay for other reasons, there is nothing in the record for a determination to be made. The only issue submitted was whether September 11th was a special event. This finding is limited to that issue, and it is found that it was a special event as contemplated by the Parties based entirely on the City’s actions following September 11th. 

 

This finding must stand even though the City argued that the initials used in the Agreement—”e.g.”—were simply a typo that should have been “i.e.” This claim must be rejected. The language is written as a general “catch-all”; it has no other characteristic that would support the City’s claim that the list provided was supposed to be exhaustive; and the City’s actions, in agreeing that other events applied under the language, all show that it cannot be interpreted as an exhaustive list. For these reasons, the Grievance must be sustained. 

 

For all these reasons, the Grievance is sustained. The City is ordered to pay all officers deviation pay where the only impediment for that pay has been the determination that September 11th was not a special event. Unless there are other reasons that such deviation pay should not be paid, it should now be made hereunder. 

 

Award

 

The Grievance is hereby sustained.