|A. 5:00 A.M. to 1:00 P.M.||A. 7:00 A.M. to 3:00 P.M.|
|B. 10:00 A.M. to 6:00 P.M.||B. 3:00 P.M. to 11:00 P.M.|
|C. 1:00 P.M. to 9:00 P.M.||C. 11:00 P.M. to 7:00 A.M.|
|D. 7:00 P.M. to 3:00 A.M.||B/A This is a split shift on which an employee works the first half (1/2) of his/her cycle on "B" shift and the last half (1/2) of his/her cycle on "A" shift.|
|E. 9:00 P.M. to 5:00 A.M.|
|A/C This is a split shift on which an employee works the first half (1/2) of his/her cycle on "A" shift and the last half (1/2) of his/her cycle on "C" shift.|
|D/E This is a split shift on which an employee works the first half (1/2) of his/her cycle on "D" shift and the last half (1/2) of his/her cycle on "E" shift.|
|B/D - This is a split shift on which an employee works the first half (1/2) of his/her cycle on "B" shift and the last half (1/2) of his/her cycle on "D" shift.|
Jason Cummings and Terry Nichols are communications/corrections officers employed by Jackson County with dates-of-hire of January 19, 1998 and April 6, 1998, respectively. Each underwent an evaluation after working six months, and each received a satisfactory evaluation. This grievance concerns whether or not they were entitled to premium pay for being reassigned to vacant shifts more than 18 times during 1998, when they were each still probationary employes.
On or about August 1, 1998, Cummings and Nichols participated, with the rest of the relevant work-force, in the semi-annual shift selection process and were both assigned to the "B/A split shift rotation." This is a split shift under which employes work the first half of their cycle on the "B" shift and the second half of their cycle on the "A" shift.
Thereafter, Cummings was reassigned to work other than this shift on 27 occasions from September 27 to December 31, 1998; twelve of these shifts paired him with another Corrections Officer of lesser seniority. Nichols was reassigned to work other than this shift on 29 days, eleven of which paired him with a Corrections Officer of lesser seniority.
On September 27, 1998, Cummings submitted a request for premium pay for a shift which marked the 19th occurrence of being reassigned to a shift other than the "B/A split shift." The County, through a Lt. Preston, denied payment, indicating the denial was based on Cummings' being a probationary employe. Cummings subsequently sought payment for 26 additional reassignments.
Nichols likewise sought premium pay after filing a vacant shift on November 11, 1998, and for ten subsequent reassigned shifts thereafter. The County again denied all such claims, on the basis of the employes' probationary status.
On November 30, 1998, Association Vice President Joel C. Smith filed a grievance, contending that Officers Cummings and Nichols were not being compensated properly. He described the grievance as being that both officers had
exceeded 18 assignments to a different shift to fill a temporary vacancy created when Officer Mark Patterson was reassigned to Patrol Division. Compensation has been refused by Lt. Preston because Nichols and Cummings are probationary employees. No where in Section 5 is it stated probationary employees are not to be compensation (sic) pursuant to Article VII Section 4.
On December 2, Chief Deputy Sheriff Dennis A. Blanchard replied as follows:
Response: Refer to Page 1, Article 1, Section 1.
Language regarding recognition. This section identifies all regular employees. Officers Nichols and Cummings are probationary employees. (emphasis in original).
Management would be unable to fully train new employees by assignment to one shift in the training and orientation process. Complete exposure to all facets of our process and the differences which occur on each respective shift are necessary components of training and orientation.
Also on December 2 1998, Smith wrote Blanchard as follows:
In response to your letter dated todays (sic) date, ref grievance on behalf of Officer (sic) Nichols and Cummings I am writing this letter per our verbal conversation.
A. I wasn't aware that we had proceeded past step #1 to step #2 in the grievance process, but with receipt of your response, I accept that we have proceeded to step #2 since I didn't receive a written response from Lt. Preston. I am providing you with a copy of the grievance, denied payroll sheets, duty roster/schedule and copy of the grievance process from the Union Contract and the Section the Union believes is not being adhered to.
B. Addressing your response, Refer to Page #1, article #1, Section #1
Language regarding recognition.
Officer (sic) Nichols and Cummings are still on their 1 year probationary period, however, they are regular full-time Law Enforcement employees of the Jackson County Sheriff's Department. In the past, there have been part-time Communications/ Corrections Officers hired and utilized in the Sheriff's Department that were assigned shifts as needed to be filled and were not assigned to a permanent full time shift. Officers Nichols and Cummings were hired as full-time, not part time employees, given shift picks and were assigned to the A/B split (see attached duty schedule). Therefore, they do fall under the item being grieved, Section #5, page #9 in the JCPPA Union Contract which states ALL employees.
In regards to training new employees.
Officers Nichols and Cummings are probationary employees, however, they have been with the Sheriff's Department for 7 and 9 months respectively and have successfully completed the training programs as provided in the Jail and Dispatch areas as provided for them. The Union contract under Section #5, page #9 allows management to reassign employees to fill vacant shifts. Reassignment after 18 times, (sic) requires management to pay these employees being reassigned overtime, which is not being done and is the entire basis for this grievance.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the Association asserts and avers as follows:
The County's assertion that it is not obligated to pay Cummings and Nichols after reassigning them on more than 18 shifts because they were probationary employes is wrong. All bargaining unit members, including probationary employes, are covered by the terms of the parties' collective bargaining agreement; just as the wage schedule covers probationary employes, so too does the article on hours of work. It is undisputed that the grievants selected a six-month regular shift pursuant to Article VII, Section 5; if that section applies to probationary employes for the purpose of shift selection, it must also apply for the purposes of the shift reassignment pay provision.
It is further undisputed that the County hired the grievants as full-time regular employes, and thus has no reasonable basis for now claiming that while on probation they were not regular employes within the meaning of the agreement's recognition clause. That clause does not exclude probationary employes. While the grievants could have been discharged without cause during their probationary period, their wages, hours and conditions of employment were otherwise covered by the terms of the collective bargaining agreement as soon as they were hired.
Association testimony that Cummings worked 45 shifts that were reassignments and Nichols worked 29, and that most of these reassignments were for the purpose of filling temporary vacancies created when another officer was reassigned to the patrol division stands unrefuted.
The County's argument that it had the right to assign Cummings and Nichols for the purpose of training and evaluating them should be rejected as being without basis in the collective bargaining agreement, and because the record shows no credible evidence that the grievants were in fact ever trained or evaluated in this time-frame.
Effective August 1, 1998, the grievants received their regular Article VII, Section 5 shift assignments, and thereafter like non-probationary employes they independently performed their assigned duties and responsibilities. As of that date, the grievants were entitled to receive premium pay for time spent working in excess of 18 reassigned shifts.
In support of its position that the grievance should be denied, the County asserts and avers as follows:
The grievance is not subject to arbitration, in that the affected employes were newly hires or probationary employes who are not included in the recognition clause. As these employes are not included within the recognition clause, they are not subject to any of the terms of the entire agreement, including the grievance procedure. Accordingly, the Association, which filed the grievance, is not an authorized agent for prosecuting employe grievances on their behalf.
Further, as the employes in question did not have seniority status, they are not entitled to a seniority shift selection, and therefore are not covered under the shift change policy. The applicable provision in the collective bargaining agreement gives officers the opportunity to rotate their respective shifts "based on seniority." Thus, it is important to understand how the term "seniority" is used throughout the agreement.
Of particular note is the provision that "(u)pon satisfactory completion of said probationary period the employe's seniority shall date back to his original date of hire." Thus, probationary employes simply do not have a seniority status until they complete their probationary period of employment; it then follows that if a new employe serving his probationary period has no seniority, then the employe is not entitled to make a shift selection under the so-called "rule of 18."
If the parties had intended for the shift selection clause to apply to probationary employes, they could have easily specified that selection was based on the date of hire, or they could have specified that new employes had limited seniority rights for shift selection purposes. They did not.
Also, Cummings and Nichols were both provided with specific training, such that certain shifts should not be counted towards the limit of 18 shift changes.
While new employes have been allowed to use the seniority shift selection procedure, the collective bargaining agreement does not require the County to provide them that opportunity. Nor is there any binding past practice. The County is not obligated to allow employes without seniority to make a seniority-based shift selection.
Further, the shift assignment of newly hired probationary employes without regard to the limitations of additional payments for shift assignments is within the management rights of the County.
The new employes and the Association have drawn a distinction between shift assignments for training and shift assignments with less senior employes. The County of course maintains that work performance, regardless of designation, is far more than informal training and, particularly where the position involves reliance upon a significant amount of independent judgment, is a necessary component of the probationary evaluation process.
Regardless of how it is characterized, the implication of the employe's concern with the training aspect of the assignments is that such assignments are in fact an exception to the 18 shift change rule. From a practical standpoint, the employes do not meet the 18 shift change threshold if this is in fact a correct interpretation. Perhaps more importantly, this is an implied acknowledgement of the County's management rights in this regard.
Perhaps the County should have developed the issue of past practice more thoroughly at the hearing. One reason of course was that the practice was so well settled that there had never been any dispute that no additional payments had been made to other probationary employes. The net effect though is that the Association's actions in attempting to enforce this provision amounts to the unilateral repudiation of a past practice (which both parties would argue to some degree involved the interpretation of an ambiguous provision of the contract).
And while the implications of the payment of a back pay remedy for Cummings and Nichols would not be insubstantial, it is the possibility of a prospective application of an award in favor of the Union which would significantly impact the County. To impose the Union's interpretation of these provisions on the County would in all probability significantly alter the legally mandated, formal and informal training of all new employes, hiring, classification, scheduling, assignments and employe evaluation in response to the potential budgetary and other issues. This is a harsh result that the award should avoid.
Further, the Association's application and interpretation would lead to a number of contradictory if not absurd results. For example, a new employe hired shortly before a shift selection period who was voluntarily provided a shift assignment, but who has not yet engaged in mandatory training would rapidly accumulate changed shift assignments to be applied toward the "rule of 18" and thus could be eligible for time and one-half pay throughout virtually the entire shift assignment period.
Because the grievance is not subject to arbitration, and because probationary employes are not entitled to a shift selection, and because the ability to assign without paying time and one-half is a necessary management right, and because the Union's interpretation of the contract prospectively would work a harsh result against the County, the grievance should be denied.
In its reply brief, the Association states further as follows:
The County errs in claiming that the grievance is not subject to arbitration because Cummings and Nichols probationary employes; the grievants were regular law enforcement employes with bargaining unit status and rights which accrued when they worked their first shift.
Further, they had seniority status pursuant to the collective bargaining agreement, as the County implicitly acknowledged by providing them the right to make seniority-based shift assignments as of August 1, 1998. Having the right to an established shift assignment schedule, the grievants were thus entitled to receive premium pay for being reassigned more than 18 times in a calendar year.
Finally, the County has no management right to deny the grievants their premium pay, and no evidence exists in the record to substantiate the County's claim that the reassignments were for the purpose of training and orientation. Indeed, the record evidence shows that the grievants had completed all formal and systematic training and orientation, and that they were instead filling a temporary vacancy created when Officer Mark Patterson was reassigned to the Patrol Division.
Accordingly, the arbitrator should sustain the grievance and direct the County to make the grievants whole for all pay lost as a result of the County denying their request for Article VII, Section 5 premium pay.
The County's initial argument is that the grievance is not arbitrable because the employes at issue were probationary at the time of the underlying events, and "standard rules of interpretation" compel the conclusion that probationary employes are under the category of "all other" employes, distinct from the "regular" law enforcement employes covered by the collective bargaining agreement.
There are several problems for the County in this line of reasoning. First, the phrase "regular employes" in a collective bargaining agreement is a term of art, distinguishing such employes from those who are temporary, casual or seasonal. As a general rule, the word "regular" relates to the regularity of the employe's work, not the length of time they have been performing it. The grievants, Officers Nichols and Cummings, were "regular law enforcement employes" as that term is understood in labor relations.
Further, the collective bargaining agreement has several specific provisions relating directly to probationary employes, thus indicating its coverage to them. Of particular importance is the provision that probationary employes may be discharged "without recourse to this Agreement or to the grievance procedure." The parties thus knew how to draft a provision excluding probationary employes from the grievance process in a particular situation; the fact that they did not include other areas within the list of exclusions indicates that those subject areas not identified are in fact subject to grievances, even for probationary employes. That is, by explicitly including discharge issues as an item which probationary employes cannot grieve, the collective bargaining agreement implicitly includes other issues as items which probationary employes can grieve.
The County's next argument is that the grievants had no seniority, and thus were neither entitled to the shift selection process, nor covered under the shift change policy. Here, the employer has a somewhat stronger case. The collective bargaining agreement provides that employes shall have the opportunity to rotate their shifts based on their seniority. The agreement also provides that seniority reverts to the original date of hire only upon satisfactory completion of the probationary period. Thus, the employer argues, probationary employes such as the grievants lack seniority status for the purpose of shift selection until completion of their probationary period.
The employer's only problem is that its point is irrelevant in this particular proceeding, because this grievance is not about shift selection itself, but only its aftermath. The County acknowledges that the grievants participated in the shift selection process last summer, and, pursuant to that process, were assigned to the "B/A split shift rotation." Whether they had a contractual right to do so is beyond the scope and record of this award.
The County's final argument in its defense is that it had the management right to reassign Cummings and Nichols to alternative shifts for the purpose of continued training and orientation. Arguing along policy and fiscal analyses, rather than explicit provisions in the collective bargaining agreement, the County states that "such assignments are in fact an exception to the 18 shift change rule."
I do not need to address the question of whether or not reassignments for orientation and training are in fact exceptions to the 18-shift change rule. That is because the County offered into the record no evidence that the purpose of the reassignments of Cummings and Nichols were indeed for training and orientation. The County's argument appears to be that, since training for probationary employes working other than the day shift is "mostly informal, on-the-job training," just about any reassignment would constitute further training and orientation. That argument is not persuasive.
As the Association notes, by August 1998 both officers had completed all formal training and orientation requirements. They often acted independently. On many occasions when they were reassigned to different shifts, they were teamed with officers with less seniority. There is no record evidence that any of these reassignments involved continued training and orientation.
Thus, even if reassignments for orientation and training are outside the parameters of the 18 shift change rule a question I explicitly do not address such an argument is inapplicable in this situation; the record simply does not support a conclusion that Cummings and Nichols were in fact reassigned for those purposes. Rather, the record indicates that they were reassigned to address fluctuating staffing concerns that is, to fill shifts which were temporarily vacant.
The collective bargaining agreement provides that the employer may, without penalty, reassign employes for up to 18 days per calendar year to fill shifts which are temporarily vacant, but that reassignments beyond 18 days per calendar year shall be compensated at time and one-half. Cummings and Nichols were assigned to the B/A split shift rotation; on 27 and 11 occasions, respectively, they were reassigned to fill shifts which were temporarily vacant. They sought premium pay, which the County wrongfully denied.
Based on the collective bargaining agreement, the record evidence and the arguments of the parties, it is my
That the grievance is sustained. The County shall make the grievants whole by recalculating their wages so that they are paid time and one-half for hours worked on those shifts following their 18th shift reassignment during 1998.
For purposes of implementing the remedy, I shall retain jurisdiction until November 29, 1999, unless prior to that time either party requests my further participation in a supplemental proceeding, or both parties release me.
Dated at Madison, Wisconsin this 29th day of September, 1999.
Stuart Levitan, Arbitrator