Holiday Pay Arbitration Opinion and Award

Transcription

1 Employee Relations Division presentation on Holiday Pay Arbitration Opinion and Award HR Group Meeting ~ September 15,

2 In the Matter of a Controversy Between Service Employees International Union, Local 1021 ( Union ) and - San Francisco Police Department ( Employer or Department ) Before Morris E. Davis, Esq., Arbitrator Award Date August 25,

3 Issue Whether the Employer violated the parties Memorandum of Understanding ( MOU ), Article III, Paragraph Holidays for Employees on Work Schedules Other Than Monday Thru Friday, or a binding past practice of providing employees on a 4/10 alternative work week schedule with ten (10) hours of in lieu compensation for holidays not worked? Alternatively, did the City violate the MOU when Grievants, who work a 4/10 alternative work schedule ( AWS ), were paid eight (8) hours of holiday leave benefit for a legal holiday on July 4, 2008 and thereafter? CCSF & SEIU 1021 MOU, Article III.G, Paragraph 453 NOTE Employees herein defined as miscellaneous classifications (e.g., non-sworn SFPD employees). 3

4 Background From 1999 through July 2008, SFPD Service Aides at the San Francisco International Airport were compensated for legal holidays based on the number of hours worked on a regular work day, which was ten (10) hours on a four (4) day alternative work schedule. In 1997, Airport Police Service Aides transferred to the jurisdiction of the SFPD, and were not part of the SFIA s compressed work week program. SFPD s Chief of Police mandated, beginning July 2008, correcting prospectively irregular pay practices such as compensating ten (10) hours of legal holiday pay for employees on a 4/10 work schedule inconsistent with City-wide practices. 4

5 Background (continued) As of July 2008, SFPD Service Aides at SFIA who were on a 4/10 work schedule were compensated for eight (8) hours of in-lieu holiday pay with the option of using two (2) hours of accrued time off to supplement the holiday benefit. Historically, during city-wide bargaining, the Union was informed that all full-time employees received eighty-eight (88) hours of legal holiday 2 benefit per year; calculated at eight (8) hours for each holiday, regardless of the employees alternate work schedules because employees were not entitled to more hours (exception of applicable MOUs with POL and FIR e.g., sworn SFPD personnel receive a legal holiday benefit of ten (10) hours or for all hours scheduled to work) CCSF & SEIU 1021 MOU paragraph 439 designation of eleven (11) Legal Holidays 5

6 Background (continued) On July 16, 2008, the Union filed a grievance stating, [e]mployer has unilaterally changed the benefit and compensation for employees regarding Holidays worked and not worked. Employees are not being compensated for their entire shift as outlined in the MOU. Arbitration hearing was conducted on August 31, 2009 and January 12,

7 Union s Position The City established a past practice of crediting ten (10) hours of in-lieu holiday to full-time SFPD Police Service Aides (Miscellaneous employees) who worked a 4/10 alternative work schedule. Department unilaterally changed the past practice without meeting and conferring when the Department credited only eight (8) hours of Legal Holiday pay and supplemented two (2) hours of other accrued leave time (i.e., VAC, CTO, FH). Remedy Employees are owed back-pay who were denied the full ten (10) hours in lieu benefit for holidays not worked. 7

8 Employer s Position City departments implementing 4/10 schedules with Miscellaneous employees are credited with eight (8) hours (not 10-hours) of holiday leave and supplement the remaining two (2) hours with available accrued leave (i.e., VAC, CTO, FH). City departments testified (e.g., DHR, PUC, SFIA, HSA, MTA, PUC) on the application of the same formula uniformly throughout the City. A unilateral mistake by one party does not provide a basis for contract reformation. No MOU provision requires the City to meet and confer before correcting an error in administering the holiday leave provisions. 8

9 Decision Past Practice Where the agreement is silent regarding a disputed matter, or the contractual language is unclear or ambiguous, then the parties past practice may be relied upon to determine their original intent. 3 Where there is clear and unambiguous language, the consensus of arbitral authority is to reject contractual modification, based on past practice, absent proof of the parties clear intent to make such a modification. 3 Binding past practice is established when it is (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties. A course of conduct that is the understood and accepted way of doing things over an extended period of time, and thus, mutually binding and enforceable. 9

10 Decision (continued) Actual Application Per the MOU, AWS are not intended to cause the Employer to incur increased costs but are allowed so long as they are cost neutral. Article III. G., Paragraph Part-time Employees Eligible for Holidays, is clear and unambiguous in specifying full-time employees receive holiday pay at a rate of 8/80, or eight (8) hours out of the 80 worked biweekly. Allowing employees, with a 4/10 schedule, to receive a ten (10) hours benefit for legal holidays not worked would result in those employees receiving 110, instead of 88 hours of legal holiday pay or entitlement. For employees working a 4/10 AWS, the practice is consistent throughout the City with compensating eight (8) hours in lieu holiday pay and supplement remaining unworked hours with other paid time off CCSF & SEIU 1021 MOU paragraph

11 Decision/Award Grievance Denied Read in conjunction, the language in the following paragraphs is clear: Holiday Compensation for Time Worked, Holidays for Employees on Work Schedules Other Than Mon Thru Fri, and Part-time Employees Eligible for Holidays The consistent practice throughout the City is to compensate for eight (8) hours in lieu holiday pay and to supplement with other paid time off if working an AWS. Therefore, notwithstanding the length of time over which affected employees were paid ten (10) hours holiday benefit, the parties MOU cannot be modified or changed to require that the Employer continue to provide the inconsistently applied ten (10) hours holiday benefit. Had the parties intended Paragraph Part-time Employees Eligible for Holidays, expand the holiday benefit to allow employees, who work 4/10s, a full-day or ten (10) hours holiday benefit, then they could have negotiated and included such a specific provision in the MOU CCSF & SEIU 1021 MOU paragraph CCSF & SEIU 1021 MOU paragraph CCSF & SEIU 1021 MOU paragraph

12 Relevant Provisions of the MOU: Article III Pay, Hours and Benefits B. Work Schedules Normal Work Day (Paragraph ) A normal work day is a tour of duty of eight (8) hours completed within not more than nine (9) hours. G. Holidays Holiday Compensation for Time Worked (Paragraph ) Ten (10) and twelve (12) hour employees shall receive full holiday compensation for the regularly scheduled shift worked on a holiday CCSF & SEIU 1021 MOU paragraph CCSF & SEIU 1021 MOU paragraph

13 Relevant Provisions of the MOU: Article III Pay, Hours and Benefits (continued) G. Holidays Holiday for Employees on Work Schedules Other than Monday Thru Friday (Paragraph )... Employees assigned to seven (7) day-operation departments or employees working a five (5) day workweek other than Monday through Friday shall be owed another day off if a holiday falls on one of their regularly scheduled days off. Employees whose holidays are changed because of shift rotations shall be allowed another day off if a legal holiday falls on one of their days off CCSF & SEIU 1021 MOU, Article III.G, Paragraph

14 Relevant Provisions of the MOU: Article III Pay, Hours and Benefits (continued) G. Holidays - Holiday for Employees on Work Schedules Other than Monday Thru Friday (Paragraph ) If the provisions of this section deprive an employee of the same number of holidays that an employee receives who works Monday through Friday, s/he shall be granted additional days off to equal suck number of holidays... In no event shall the provisions of this section result in such employee receiving more or less holidays than an employee on a Monday through Friday work schedule... [Emphasis added] CCSF & SEIU 1021 MOU paragraph

15 Relevant Provisions of the MOU: Article III Pay, Hours and Benefits (continued) G. Holidays - Part-time Employees Eligible for Holidays (Paragraph ) Regular full-time employees are entitled to 8/80 or 1/10 time off when a holiday falls in a biweekly pay period, therefore, part-time employees,..., shall receive a holiday based upon the ratio of 1/10 of the total hours regularly worked in a biweekly pay period. Holiday time off shall be determined by calculating 1/10 of the hours worked by the part-time employee in the biweekly pay period immediately proceeding the pay period in which the holiday falls CCSF & SEIU 1021 MOU paragraph

16 Questions and Answers for a copy of Davis August 25, 2010 Holiday Pay arbitration opinion and award. 16