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In re
Shawnee County Sheriff’s Department
and
Fraternal Order of Police,
Lodge 3, Topeka, Kansas
97 LA (BNA) 919
FMCS Case No. 91/11143
September 24, 1991
Mark Berger, Arbitrator *
The issue presented is whether the Sheriff’s Department violated the contract as a result of changes caused by its memo of September 27, 1990, altering the method for overtime compensation, and if so what remedy is appropriate?
Facts
The Fraternal Order of Police, Topeka, Kansas, Lodge No. 3, represents Patrolmen, Detectives, Corporals and Sergeants employed by the Sheriff’s Department of Shawnee County, Kansas. The FOP filed a grievance under the collective bargaining agreement protesting changes in overtime compensation procedures implemented by the Sheriff’s Department in September, 1990. The changes were reflected in a memo from the Sheriff, dated September 27, 1990, but actual implementation began shortly before that date.
According to the testimony of Gaylon Thompson, FOP Chief Steward, the prior practice of the Sheriff’s Department with respect to overtime compensation had been to provide either pay or compensatory time off at one and one-half times the regular rate for all overtime worked by Department officers. The essence of the change reflected in the new Department policy was to require officers to take compensatory time off at the regular rate for all before and end-of-shift overtime worked by Department officers. This would prevent officers in such cases from working more than forty hours in a single week, and thereby eliminate the need for overtime rates in compensation.
Prior to the newly-implemented procedure, the Department had in practice provided overtime rates, in either pay or compensatory time off, for overtime worked beyond the normal eight-hour shift day. Even though it might have been theoretically possible, whether or not consistent with the contract, to provide immediate compensatory time off in the same week and thereby preclude any officer who had worked overtime from accumulating more than forty hours in a specific week, the consistent practice was to the contrary. Even if an officer worked more than eight hours on the first day of the week, he would continue to be scheduled for normal eight-hour shifts for the remainder of the week. Thus, the extra hours worked on the first day would be overtime, and the Department would compensate the officer by providing time and a half pay or time and a half compensatory time off.
Sergeant Thompson testified that this practice was consistent, unequivocal, uniform, and maintained over an extended period of time, including the full twelve years that Sergeant Thompson had been employed by the Department. Sergeant Thompson testified further that this was a mutually understood practice. For the most part police officers were financially compensated for hours worked beyond eight in a single day, such being the general preference among officers. However, an officer could request compensatory time off in lieu of pay, and this would be provided at a rate of one and one-half hours of compensatory time off for each extra hour worked beyond eight in a single day.
Although infrequently sought by officers, the Union produced evidence of a number of such requests made by unit members during the year 1990. These requests were made on a form provided by the Department, whose pre-printed elements included a title of “Request for Compensatory Leave” as well as a blank for compensatory hours sought, followed by a printed statement that the hours sought were “equal to one-and-one-half (1 1/2) times the number of hours overtime I worked on . . .” The forms indicated that the requests made in 1990 were granted.n1
According to the testimony of Sergeant Thompson, under the new policy officers received very little notification that their scheduled work days were being reduced as compensatory time off for overtime previously worked. In one case, an officer was not informed that he was to stop work early (after one and one-half hours) until he had already worked one hour and thirty-two minutes.
When this and other specific incidents were brought to the attention of the Department, the Sheriff responded with a memo dated January 11, 1991, making some alterations in the overtime system. Specifically, the memo provided that no officer should have his schedule adjusted more than fifty percent on any given day. Additionally, supervisors were directed to make every effort to notify officers of future compensatory time off by at least the end of the work day before the change would take place. Additionally, the memo instructed that if two hours of notice could not be provided, “the modification should not be imposed.”
The evidence revealed that the new overtime policy was most frequently applied to end-of-shift overtime. It specifically did not apply to circumstances where an officer is called in for a court appearance, nor did it apply to call-back situations involving the recall of an officer who had completed his shift and left. However, Sergeant Thompson testified that the policy was applied to circumstances where officers were called in early, and continued to work when their normal shift was scheduled to begin.
The evidence presented at the hearing revealed that the Department unilaterally implemented its new policy without presenting the proposal to the Union for discussion. However, the memorandum from the Sheriff, both implementing the program and subsequently revising it, offered the option of providing the Department with any suggestions they might have. Ultimately, the Union grieved the unilateral implementation of the policy.
The issuance of the Department’s September 27, 1990, memo also occurred during the period that negotiations were underway for the execution of a new contract to take effect in 1991. The parties had agreed that all proposals should be placed on the table and made available to the opposing side by the end of July. Thus, the implementation of the new overtime policy occurred after the date agreed to by the parties for submission of the new proposals. However, the Union never requested bargaining on the overtime proposals for purposes of the new agreement, and did not request a waiver of the deadline for submitting new proposals. Moreover, Sergeant Thompson testified that the Union decided to rely on the grievance to protest the new policy as a matter of Union strategy. It was the Union’s position that the Department had previously made unilateral changes during the contract negotiations thereby forcing the Union to negotiate to reassert rights already possessed. It did not wish to do that with respect to this issue during the negotiations for the 1991 agreement.
According to Department officials, the reason for the new overtime policy was to regain control over funds expended for police overtime because of budgetary pressures imposed by the Board of County Commissioners. In a number of ways the County Commissioners had indicated to the Department that its overtime overage in 1989, as well as more general budgetary difficulties throughout the County, would require more careful budgeting by the Department in all respects. Data provided by the County revealed that the Department had maintained a small surplus in its budget at least from 1984, although the percent of its budget expended constantly grew during that period. In 1990, moreover, part of that budget surplus in wages and salaries was transferred to capital outlays to allow for the purchase of additional police vehicles.
In point of fact, overtime control was only one aspect of the Department’s response to budgetary constraints. In addition, thee supervisory positions were left unfilled, and the Department eliminated the mandatory requirement that there be five Patrolmen on duty at any one time. Under the new policy this would be dictated by conditions at the time. Finally, officers were instructed to be diligent in holding end-of-shift calls over to the next shift.
Contract Provisions
· Section 1.12 Overtime. Work performed by an employee beyond his regularly scheduled work period.
· Section 2.6 This agreement shall constitute the complete, sole and exclusive agreement between the parties covering employee-employer relations, and no County resolution or policy regarding personnel other than that contained in this agreement shall be of any force or have any effect regarding this bargaining unit. The County and F.O.P. Lodge No. 3 agree to continue existing employee benefits and practices not specifically referred to or modified in this agreement, provided that continuance of any such benefits shall be consistent with the Management’s ability to conduct business as stated herein.
· Section 7.1 The employer possesses the sole right to operate County government and all management rights repose in it, subject only to the provisions of this Agreement and applicable law. It is agreed that except as specifically delegated, abridged, granted or modified by this Agreement or applicable law, all of the rights, powers, and authority the County had prior to the signing of this Agreement are retained by the County and remain the exclusive right of management. It is understood and agreed that the County does not have the right to unilaterally change any term or condition of employment regardless of whether that term or condition is specifically set out in the Agreement.
· Section 7.2 Neither the County nor the F.O.P. through their officers, members, representatives, agents or committees, shall engage in any subterfuge of any kind for the purpose of defeating or evading the terms or intent of this Agreement.
· Section 11.1 The determination of starting times and work schedules shall be made by the Sheriff or his designee. In the event of any major change in work schedule at least seven (7) calendar days advance notice of such change shall be posted. Shift change shall not be made for disciplinary reasons.
· Section 11.2 For the purpose of this agreement, a work week shall consist of forty (40) hours worked on consecutive calendar days except for personnel who may be assigned by the Sheriff to work on alternative work schedules. A normal work day for all personnel shall consist of eight (8) hours including the thirty-five (35) minute meal period. Nothing herein shall limit the right of the Sheriff to prescribe alternative work schedules.
· Section 13.2 Said hourly wage shall be paid for every hour or 1/10 portion thereof an employee works, performs services or is on paid leave up to and including 40 hours per week.
· Section 13.3 Thereafter, the employee shall be paid at a rate of one and one-half (1 1/2) times said hourly wage for every hour or 1/10 portion thereof said employee works or performs services for the County exceeding the hours specified in Section 13.2. For the purpose of computing overtime, paid leave shall be considered time worked.
· Section 13.4 If an employee works during his meal period; if an employee is called back to work beyond his workday; or if an employee is subpoenaed or otherwise ordered to appear in court or before an administrative body in connection with his duties in either a criminal or civil matter, such employee shall be paid for such work time at the appropriate rate depending on whether or not the total hours worked during the affected payroll period exceed those hours specified in Section 13.2
· Section 13.5 An employee called back to work overtime outside his regular scheduled duty period shall be paid for a minimum of two (2) hours and shall be paid for such work time at the appropriate rate depending on whether or not the total hours worked during the affected payroll period exceed those hours specified in Section 13.2.
· Section 13.8 Employees may voluntarily request to take compensatory leave in lieu of paid overtime as set out in Section 24.0 of this agreement
· Section 13.12 No employee shall be permitted to work overtime without reporting same during the pay period during which said overtime is worked. No employee shall have the right to waive compensation for overtime and every employee shall be paid for all overtime actually worked or given the opinion to receive compensatory time as further specified in Section 13.8 of this contract.
· Section 24.1 If an employee agrees to do so in writing, the employee may be granted compensatory leave equal to the number of hours of overtime accrued pursuant to Section 13 of this Agreement, in lieu of paid wages, provided that the compensatory leave is taken by the employee before the end of the pay period succeeding the pay period in which the overtime was accrued.
Discussion
Obviously, the contract between Shawnee County and the FOP, Lodge No. 3, does not contain specific contractual language which directly covers the instant dispute. Rather, the essence of the Union’s grievance is that the Sheriff’s Department unilaterally changed a binding past practice enforceable under the contract. This claim requires a determination of the standards governing the enforcement of past practices, as well as the identification of exactly what practices, if any, existed between the parties which may be relevant to the dispute.
It is generally recognized that in order for past practices to amount to a binding obligation between the parties, they must be clear, unequivocal, and fixed over a reasonable period of time. n2
It has also been said that proof of a binding past practice must demonstrate clarity, consistency, longevity, repetition, acceptability, and mutuality. n3
However, the evidence may serve to justify the rejection of a claim of a binding past practice where there are an insufficient number of incidents, n4 a significant number of exceptions to the alleged past practice, n5 indications that the alleged practices may have been the result of error, n6 and insufficient evidence of mutual acceptance. n7
Utilizing these standards, it is clear that there were past practices that were well established, unequivocal, of significant duration, and mutually accepted by the parties. However, they do not precisely coincide with the practices alleged by the Union.
According to the Union’s claim, the parties had established a practice of compensating officers at a time and one-half rate for all hours worked in excess of eight (8) per day. This was true with respect to overtime caused by court appearances, call-backs, and assignments immediately before or after an officer’s regular shift. Since the Department has continued the practice of compensating officers at overtime rates in connection with court appearances and call-back overtime, these are not at issue. However, I am not persuaded that the evidence establishes a past practice of uniformly compensating officers at time and one-half rates for before and end-of-shift hours in excess of eight (8) per day.
One area where this was not established is with respect to compensation in the form of compensatory time off. It was the position of the Union that if an officer requested compensatory time off in lieu of overtime pay, time would be awarded at time and one-half rates. Several factors, however, convince me that this did not amount to a mutually accepted and unequivocal past practice. Of major significance in this regard is the fact that the practice was both sporadic and discretionary. All witnesses agreed that in the overwhelming number of circumstances, officers sought and received pay rather than compensatory time off. There was similar agreement in the testimony that the Department could reject a request for compensatory time off in lieu of overtime pay. Under these conditions, it is difficult to identify anything which can be called a binding past practice.
I am also persuaded by credible testimony from the Department establishing that there was no mutual acceptance of compensatory time off being made available at a time and one-half rate. At least one incident established that compensatory time was given on a one-for-one basis where the officer took the time off during the same week in which he worked the extra hours. Under these conditions there would be no work in excess of 40 hours for the week, and the Department therefore disputed the obligation to provide compensatory time at the overtime rate. If the time was taken in the next week, however, it would have to be given at the overtime rate since the officer would have worked in excess of 40 hours during a work week, thereby requiring overtime under the contract.
In cases of payment rather than compensatory time off the Union claimed that a past practice was established of paying officers time and one-half for hours worked during any day in excess of eight (8) hours. Even though the contract does not call for overtime in cases of this sort, the Union maintains that such a practice existed.
The evidence certainly demonstrated that where officers worked in excess of eight (8) hours during a single day, and maintained their regular work schedule for the rest of the week, they wound up being paid at overtime rates. However, it is my conclusion that this consequence followed from the fact that the officers worked in excess of 40 hours during the week, not because they worked in excess of eight (8) hours on any single day. The past practice which was clearly established was that if an officer worked more than eight (8) hours in a single day, his schedule for the rest of the week would not be changed. This would lead him to earn overtime compensation.
Until the issuance of the September 27, 1990, memo, the practice of not reducing work hours to avoid overtime met all standards required for classification as a binding past practice. It was of longstanding duration and followed without exception. Acceptance of the practice by the Department is evidenced by the fact that it was the Department which scheduled officer shifts. The parties functioned this way because the practice was mutually understood; this is what the September 27, 1990, memo changed.
For most purposes it would not appear that the distinction drawn between work in excess of eight (8) hours per day and work in excess of 40 hours per week would make much of a practical difference. As long as the officer’s schedule for the rest of the week was not altered, work in excess of eight (8) hours in a day would automatically lead to work in excess of 40 hours for the week. However, if the records indicate any circumstances in which an officer worked in excess of eight (8) hours in a single day, but had an unpaid leave during the same week, compensation at overtime rates would not be called for. There may or may not be any such situations, but if they exist, I find no basis to justify including such cases within the past practice.
In short, therefore, I find that the parties had a well-established and mutually accepted practice whereby officers working more than eight (8) hours in a single day would not have their schedules changed during the remainder of the week by reducing their hours to avoid a total work week in excess of 40 hours. To the contrary, the Department uniformly kept the officer’s regular schedule for the remainder of the week, even though this would automatically mean work in excess of 40 hours, and therefore an obligation to pay the employee at overtime rates. I find that there was no mutual acceptance of providing officers with compensatory time off at time and one-half unless the time off was given in a succeeding week, and the officer worked in excess of 40 hours as a result of his total work week assignments. There was no agreement on the part of the Department to create an overtime obligation on a daily basis if there was no work in excess of 40 hours over the course of an entire work week. This lack of mutual acceptance bars classification of this type of situation as a binding past practice. For the same reason, if an officer worked in excess of eight (8) hours in a day, but had an unpaid leave during the same work week, and therefore did not work in excess of 40 hours for the week, once again no overtime would be due.
If there is a past practice between the parties, the next question is whether it is binding in governing their relationship. The Union offers two theories in support of its claim that any binding past practice established by the parties, and mutually recognized by them, is enforceable through arbitration. The first relies on generally accepted arbitration standards, recognized by the authorities n8 and supported by numerous arbitration decisions, n9 holding that past practices may be enforceable under a labor contract. Based on this theory, the Union argues that since, as indicated above, there is an identified past practice which meets applicable standards, it must be enforced against the Department.
The second theory offered by the Union is based upon specific contract language as provided in Section 7.1:
It is understood and agreed that the County does not have the right to unilaterally change any term or condition of employment regardless of whether that term or condition is specifically set out in the agreement.
This is supplemented by the language in Section 2.6 of the Contract:
The County and F.O.P. Lodge No. 3 agree to continue existing employment benefits and practices not specifically referred to or modified in this agreement, provided that continuation of any such benefits should be consistent with management’s ability to conduct business as stated herein.
This, in the Union’s view, makes the identified past practice a contractual obligation which the Department must respect. For the reasons described below, I am in agreement with both Union positions and find that the Department lacked authority to unilaterally alter the Practice it had followed.
The enforceability of past practices, where they meet governing standards, is far too well established to be challenged. There is some indication in arbitration decisions that enforceability is more frequently found where the practice involves a matter central to working conditions, as opposed to a mere gratuity. n10
This, however, is of no assistance to the Department since scheduling is a matter central to the working conditions of the Department’s officers. It is also true that contract provisions may have the effect of negating the enforceability of past practices, n11 but no such provision appears in the instant agreement. In short, there is nothing to justify ignoring the binding character of the past practice identified above.
Additionally, the parties agreed to collective bargaining clauses which firmly establish their intent to bind themselves to past practices. This is explicit in Section 2.6 of the Agreement and implied in Section 7.1. If the parties have agreed to be bound by their past practices, their agreement should be enforced by this arbitrator.n12
Even if past practices may become binding between parties in a collective bargaining agreement, the Department nevertheless maintains that its scheduling changes in the instant proceeding did not violate the contract. In support of its position, the Department has offered both contractual and statutory defenses which must be addressed.
The statutory argument raised by the Department is that interpreting the contract in the manner claimed by the Union would be inconsistent with rights reserved under the Kansas Public Employer-Employee Relations Statute. The collective bargaining duty created by the statute n13 is subject to the provisions of K.S.A. Section 75-4326 which preserves public employer rights to:
(a) direct the work of its employees
(b) hire, promote, demote, transfer, assign and retain employees in positions within the public agency
(c) discharge employees for proper cause
(d) maintain the efficiency of governmental operations
(e) relieve employees from duties because of lack of work or for other legitimate reasons
(f) take actions as may be necessary to carry out the mission of the agency in emergencies
(g) determine the methods, means and personnel by which operations are to be carried on.
Further, K.S.A. Section 75-4330(a) states that a memorandum of agreement may not extend to “Public employer rights defined in K.S.A. Section 75-4326 and amendments thereto.”
Preliminarily, there is disagreement as to whether arbitrators may consider external law in resolving collective bargaining disputes. n14
However, it may well be that the parties intended to incorporate statutory standards in their agreement. Nevertheless, even under this latter approach, I find nothing in the statutory references which would be violated by requiring that the Department adhere to the past practice identified in this decision.
The reserved rights contained in the Kansas statutes permit public employers to perform their public service missions unencumbered by any collective bargaining obligation. But these reserved rights cannot be read so broadly as to make collective bargaining, or in the words of the Kansas statute, the duty to meet and confer in good faith, an empty ritual. The Department remains free to direct its employees in how to perform their assignments, maintain the overall efficiency of its operations, and determine procedures and methods for the performance of its functions. The reserved public employer rights are not inconsistent with negotiating or establishing scheduling practices. These are part of the conditions of employment which the Kansas statutes make subject to the duty to meet and confer.
If the Kansas statutory reservation of rights provision is misread, it would virtually eliminate major portions of the collective bargaining agreement between the parties, including Section 8 and 9 on seniority, Section 10 on manning, Section 11 on work schedules, Section 13 on overtime, Section 16 on leaves of absence, Section 17 on military leave, Section 18 on vacation leave, etc. Indeed, every item negotiated by the Department and the Union can be said to effect the ability of the Department to direct its employees, maintain its efficiency, and determine the methods, means and personnel by which it performs its function. However, this is not what the statute calls for. Rather, it permits the Department to determine how to perform its policing function, but directs it to meet and confer with respect to conditions of employment. Scheduling practices involving overtime clearly fit this qualification, and the reserved rights provided by the Kansas statute are in no way inconsistent.
The Department’s contractual argument is essentially that past practice cannot be used to negate management rights which are otherwise reserved in the collective bargaining agreement. The Department also argues that the instant past practice is inconsistent with other rights provided in the contract, and thus cannot be enforced under the general rule that specific provisions of a collective bargaining agreement must be enforced over more general ones. n15
I find neither argument persuasive. As stated in How Arbitration Works,
A general ‘catch-all’ provision, designed to freeze general working conditions, cannot be construed to nullify an express provision of the contract. [citing Valley Dolomite Corp., 11 LA (BNA) 98, 100 (McCoy, 1948) ... Furthermore, such a clause has been construed to refer to such things as employee benefits, and not to restrict basic management functions absent clear indication of such intent.
This principle has no application to the instant case, however, because there is no specific provision justifying the Department’s alteration of practices, nor does it relate to the kind of basic management function referred to in the quote.
The closest contract provisions the Department can point to are Section 11.1, which gives the Department the right to determine starting times and work schedules, subject to the requirement of at least seven (7) days notice of any major change, along with Section 11.2 giving the Sheriff the authority to establish alternative work schedules. The Department has used this authority to switch to a five days on, two days off schedule from a six days on schedule. Varying the day, evening and night shift times would also amount to schedule changing. But, daily adjustments in hours worked by officers in order to avoid overtime is not the kind of scheduling 11 refers to. If anything, it is the absence of a schedule. Under the policy’s terms officers have no way of knowing whether they will work a full or partial day until the very day in question.
The new Department schedule emanating from the policy change grieved in this proceeding is that whether officers will work a full shift will be determined on a daily basis. The parties have mutually agreed to permit daily extra work as needed, a necessary fact in police work, but they have not mutually agreed to allow daily variance by reducing the normal eight (8) hour day. The notion of a work schedule connotes a pre-planned arrangement, not an ad hoc one determined at the last minute. Emergency or operational necessity which dictates work in excess of eight (8) hours in a single day may justify holding officers beyond the end of their scheduled tour of duty, or calling them in early, but the avoidance of overtime motive which has prompted the Department’s daily reduction in work schedules is not authorized by Section 11 of the contract, nor by any practice accepted by the parties.
It is also my conclusion that the entire system represents a major change in scheduling which violates the seven-day notice requirement. The Department’s statistical effort to demonstrated that many of the schedule changes were of relatively short duration was unpersuasive. Many more were substantial under any reasonable view of the term. Moreover, the actual schedule change reflected in this policy is the reality that the Department’s officers no longer know on any kind of pre-planned basis whether their work day will be cut short. That fact represents a major scheduling change that Section 11 does not permit.
The general management rights reserved to the Department in Section 2.6 and 7.1 of the agreement are also ineffective in undercutting the binding character of the past practice identified above. Looked at fairly, no valid management right is affected by the restraints imposed as a result of mutually accepted scheduling practices used by the parties. The Department is still able to manage its employees, run its operations, and provide the public service required of it. What it cannot do, however, absent agreement with the Union, is change officers’ schedules on a daily basis to save overtime in violation of past practices which it is bound to follow. In much the same way, it cannot unilaterally cut wages to save personnel costs, nor can it eliminate agreed-upon vacations.
Employee benefits costs money, whether they are in the form of direct salary payments or in the form of schedule restrictions. The labor contract, however, protects them against unilateral elimination. Of course, this is not to say that the Department is precluded from efforts to reduce its overall operating costs. Indeed, it has taken other steps to achieve this objective. But in this instance its effort is inconsistent with contractual requirements and cannot be sustained.
The Department argues, nevertheless, that it is free to take action pursuant to the management rights clause, and that arbitration decisions support this principle. However, the cases urged in support of this argument indicate approval of various employer decisions pursuant to a management rights clause, but in situations where there was no contradictory controlling past practice. n16
As a result, these decisions cannot be considered applicable to the instant grievance in which binding past practices have been found.
Finally, even if the Department lacked the authority to unilaterally change its scheduling practices for before and end-of-shift overtime, the Department still maintains that the Union failed to demand bargaining, and therefore waived any right to complain. Actually, however, this claim must be divided between the period under the predecessor contract and under the current contract.
With respect to the period under the prior contract, the issue of whether or not the Union demanded bargaining is not controlling. If the right was created by contract, as found above, the Department has no authority to eliminate the practice without obtaining Union consent. Applying this argument to the instant case, it is the conclusion of this opinion that a binding past practice was contractually enforceable between the parties. It was not the obligation of the Union to demand bargaining when the Department changed the practice. Rather, it was incumbent upon Department to secure Union consent. The fact that the Union filed a grievance, finally, clearly establishes the lack of consent.
The analysis of this issue is akin to the rule under the National Labor Relations Act barring mid-term modification of terms contained in collective bargaining agreement absent consent of the parties. Under the National Labor Relations Act and federal labor contract law pursuant to Section 301 of the Labor Management Relations Act, any such mid-term modification is not merely a contract violation which can be remedied through arbitration, but also is an unfair labor practice pursuant to Section 8(d) of the National Labor Relations Act. n17
Thus, the claim that the Union waived its rights cannot apply to the contract violation during the term of the predecessor agreement. The issue is consent to the change in the contract, of which there was none.
In contrast, the Department’s waiver claim is relevant to the question of whether the contract violation continued on into the successor collective bargaining agreement. Simply stated, the Department maintains that by failing to demand bargaining concerning the Department’s policy change, the Union forfeited any right to complain once the new contract was executed.
The general standard for determining whether a Union has waived its right to bargain under the National Labor Relations Act was set forth in Metropolitan Edison Co. v. N.L.R.B. n18
The conclusion of the Supreme Court was that the party claiming waiver of the duty to bargain must prove that the waiver was clear and unmistakable. In City of Kansas City, Kansas, 94 LA (BNA) 191, 195-198 (1989), this arbitrator reviewed the law governing waiver of the duty to bargain in the context of management rights and zipper clause provisions of a contract, and it would appear unnecessary to repeat that discussion here. Existing precedent, whose principles I find controlling in the instant case, indicate that the clear and unmistakable waiver standard represents a substantial burden of proof which is designed to protect statutory rights. Comparable rights exist under Kansas law as well, and call for the same degree of protection.
The facts in the instant case demonstrate that there was no clear and unmistakable waiver by the Union of the right to demand collective bargaining on a negotiable matter. First of all, the Department had taken the position that it could act unilaterally and did not need to negotiate with the Union. It even went so far as to bypass the Union and call for direct comments and input from individual officers on this issue. In the face of such conduct the Union cannot be faulted for not directly raising the issue in negotiations.
This conclusion is further supported by the fact that the parties had mutually agreed on dates for the final submission of proposals and for the declaration of an impasse in negotiations. The Department, aware of those deadlines, nevertheless implemented its policy after both dates had past. Again, the Union cannot be faulted for failing to bring up the subject when all relevant deadlines had already gone by. Any claim that the Union could have asked for a waiver of these requirements can be matched by the observation that the Department could have offered to discuss the matter on its own. But, even the fact that the Union failed to ask for an exception to the deadlines cannot establish that it clearly and unmistakably waived its right to insist on bargaining. Under the circumstances the meaning of the Union action is far too ambiguous to be called a waiver.
Also significant is the fact that the Union was pursuing its complaint through the grievance process. It was faced with the Department response indicating its belief that its unilateral action was entirely proper. Once again, in the face of such Department action, the Union failure to demand bargaining cannot be seen as a clear and unmistakable waiver.n19
In light of the clear past practice identified in this opinion, the Department’s unilateral change in scheduling policy constitutes a violation of the contract between the parties. This violation, in turn, calls for the imposition of a remedy. One aspect must be a cease and desist order. The remainder of the remedy, however, must be tailored to the violation.
As described above, the violation occurred when officers who worked over eight (8) hours in a day, either before the start of or upon completion of their normal shift, had subsequent work time reduced in order to permit the Department to avoid payment of overtime. If past practices had been followed those officers would have continued to work their regular shifts during the work week, and would have earned overtime. In light of the violation and its consequence, all officers who worked overtime and had subsequent schedule reductions must be made whole. Since they were already paid the regular rate for the hours worked on any one day in excess of eight (8), the remedy must encompass a requirement that they receive additional compensation so that the result is that those hours receive total compensation at overtime rates.
However, this remedy does not apply to officers who took compensatory time off in lieu of overtime pay since, as concluded above, compensatory time off at overtime rates was not a binding past practice. Similarly, officers who worked more than eight (8) hours on any work day, but who had unpaid time during the same week, with the result that total work hours for the week did not exceed 40, are not entitled to overtime rates for the work in excess of eight (8) hours on any one day. This is because of the conclusion, described above, that the past practice was binding with respect to work hours in excess of 40 per week, not in excess of eight (8) per day.
The officers who will receive compensation under this remedy are those who worked overtime on any one day and then had their schedules reduced in the same week so that their total work week hours did not exceed 40. It was this action which violated the contractually binding past practices, and the remedy imposed will make the affected officers whole for the violation.
I am confident that the Department has the necessary records to implement the remedy ordered in this decision. The parties have a good collective bargaining relationship, and should have no difficulty implementing this award. Nevertheless, jurisdiction will be retained for 60 days to resolve any disputes should they arise.
AWARD
The Department violated the contract when it implemented its policy of September 27, 1990. The policy constitutes a violation of the contract insofar as it authorized the Department to unilaterally reduce officer work hours, after an officer worked before the start of or at the end of his eight-hour shift, for the purpose of reducing the officer’s total work week hours to 40, thereby avoiding overtime compensation requirements. The Department shall cease and desist from engaging in such conduct in the future under the current contract, absent Union consent. The Department shall also compensate all officers affected by the policy so as to make them whole. This shall require identifying officers who worked in excess of eight (8) hours on any particular day, and subsequently had hours reduced to bring their total work week to 40 hours. The compensation due such officers must bring their total payment up to overtime rates for the hours in question. Jurisdiction is hereby retained for 60 days to resolve any disputes, should they arise.
Notes:
* Selected by parties through procedures of the Federal Mediation and Conciliation Service
1. One such form indicated a request for six hours of compensatory time off at overtime rates, but Lt. Crane of the Department testified to his recollection that, despite the form, the overtime was provided at straight time rates since the compensatory time was requested during the same week that the overtime was worked, with the result that the officer would not have worked over forty hours during the week in question. The officer involved confirmed this account in an affidavit.
2. Frequently cited in support of this proposition is the opinion of Arbitrator Jules Justin in Celanese Corp. of America, 24 LA (BNA) 168 (1954). The cases cited by the Union, including one ruling of this arbitrator, provide further support for this standard. See, City of Kansas City, Kansas, 94 LA (BNA) 191 (Berger, 1989); Racine Police Department, 88 LA (BNA) 1038 (Barron, 1987); Hennepin County Sheriff’s Department, 85 LA (BNA) 425 (Gacobowski, 1985); Jafco, Inc., 82 LA (BNA) 283 (Armstrong, 1984); Rockwell International, 71 LA (BNA) 1055 (Rimer, 1978); United Borax and United Chemical Corp., 48 LA (BNA) 641 (Bernstein, 1967).
3. Mittenthal, Past Practice and the Administration of Collective Bargaining Agreements, Proceedings of the 14th Annual Meeting of NAA, 32-33 (1961).
4. Reyco Industries, 85 LA (BNA) 1034 (Newmark, 1985); EEOC, 84 LA (BNA) 1231 (Mikrut, 1985).
5. International Paper Co., 85 LA (BNA) 790 (Sloane, 1985).
6. Midwest Printing Co., 85 LA (BNA) 615 (Ver Ploeg, 1985).
7. Illinois Power Co., 93 LA (BNA) 611 (Westbrook, 1989); Johnson Controls, 85 LA (BNA) 594 (Garnholz, 1985); General Tele. of Cal., 85 LA (BNA) 476 (Collins, 1985).
8. Elkouri & Elkouri, How Arbitration Works (4th ed. 1985) at 437-456; Fairweather, Practice and Procedure in Labor Arbitration (2d ed. 1983) at 205-207.
9. E.g., City of Kansas City, Kansas, supra; Celanese Corp. of America, supra.
10. City of Kansas City, Kansas, 94 LA (BNA) 191, 194 (Berger, 1989).
11. E.g., Augsburg College, 91 LA (BNA) 1166 (Gallagher, 1988); Hesco Industries, 81 LA (BNA) 649 (Chapman, 1983).
12. See, City of Miami, 89 LA (BNA) 86 (Abrams, 1987).
13. In actuality, the operative responsibility is defined as an obligation to meet and confer in good faith, but this is defined in K.S.A. 75-4322(m) in a manner which is equivalent to the duty to bargain under Section 8(a)(5) of the National Labor Relations Act. See also K.S.A. Section 75-4333(b)(5) and Kansas Board of Regents v. Pittsburg State University Chapter of K-NEA, 233 Kan. 801, 667 P.2d 306 (1983).
14. See, Mittenthal, The Role of Law in Labor Arbitration, Proceedings of the Twenty-First Annual Meeting, National Academy of Arbitrators 42 (1968).
15. Coca-Cola Foods, 88 LA (BNA) 129 (Neahring, 1986).
16. This was true in W.E. Plechaty Co., 78 LA (BNA) 404 (Abrams, 1982); Town of Nigaria, 74 LA (BNA) 312 (Babiskin, 1980) and Seamless Rubber Co., 27 LA (BNA) 92 (Stutz, 1956). Non use of a right does not entail loss of it, Esso Standard Oil Co., 16 LA (BNA) 73 (McCoy, 1951); however, where there is a binding past practice, the case is not one of the mere non use of a right but rather involves the creation of a contractual duty.
17. A & W Foods, Inc., 276 NLRB 1239, 120 LRRM 1088 (1985) Manley Truck Lines, 271 NLRB 679, 117 LRRM 1151 (1984). Under Milwaukee Spring Division, Illinois Coil Spring Co., 268 NLRB 601, 115 LRRM 1065 (1984) enforced sub. nom International Union, UAW v. N.L.R.B., 765 F.2d 175, 119 LRRM 2801 (D.C. Cir. 1985), the unfair labor practice issue requires that there be a modification of a term contained in the collective bargaining agreement. This standard might be satisfied by the provisions of Section 2.6 and 7.1 of the contract between the parties which incorporate past practices as contract obligations. Nevertheless, this issue is not directly relevant to the question presented in this arbitration which is whether the action constitutes a contract violation, not whether it constitutes a prohibited practice under applicable labor relations law.
18. 460 U.S. 693, 112 LRRM 3265 (1983).
19. As an additional argument, the Union claims that the Department’s policy violated Section 7.2 of the contract which bars either party from engaging “in a subterfuge of any kind for the purpose of defeating or evading the terms or intent of this Agreement.” The Department response, however, is that it acted in good faith. Given the conclusion that the Department violated other provisions of the Agreement, it is unnecessary to resolve the Union’s subterfuge claim. The factual and legal analysis which would be necessary to interpret and apply Section 7.2 of the contract would add nothing useful in the resolution of the grievance, and would require a complicated evaluation of the subjective and objective components of the subterfuge and good faith arguments.