State of Minnesota Bureau of Mediation Services (BMS)

Transcription

1 State of Minnesota Bureau of Mediation Services (BMS) Arbitration Award Summaries BMS Case Number: 13-PA-0152 Employer: City of Rochester Union: International Union of Operating Engineers, Local 49 Arbitrator: Jeffrey Jacobs Date of Award: August 26, 2013 Grievance Arbitration Background The City and the Union agreed to bifurcate the arbitration hearing on the questions of liability and damages. The liability phase was determined on April 23, 2013 (13-PA-0152), where the seasonal and temporary employees who meet the definition of public employee under Minnesota Public Employment Labor Relations Act (PELRA) were found to be covered by the collective bargaining agreement (CBA). This decision is regarding the damages phase, where the arbitrator determined the actual damages or remedy. Issues What is the effective date of any back pay award to temporary/seasonal workers who meet the definition under PELRA of a public employee? What is the effect of Minnesota Statute 179A.03, subdivision 14(b)(2), on the determination of back pay pursuant to PELRA s 67-day rule in this matter? Did the City violate the CBA when it designated certain employees as part-time employees under PELRA? If so, what shall the remedy be? Has the City met its burden to show that certain temporary/seasonal workers were appropriately designated as students under PELRA and thus subject to the provisions of Minnesota Statute 179A.03, subdivision 14(a)(6)(ii)? If not, what should the remedy be? Whether there are employees entitled to fringe benefits pursuant to the CBA and if so in what amount?

2 Discussion-Analysis On April 23, 2013, the City was liable to pay contractual rates for seasonal and temporary employees if those workers worked more than 67 days in a calendar year or where they worked more than 100 days in a calendar year if they were students as defined by PELRA. This is the damages phase, where the arbitrator was to determine which employees are entitled to damages and in what amounts, what is the effective date of the award back pay, whether any employees are entitled to fringe benefits pursuant to the CBA, and how to properly effectuate the payment of any back pay awarded. The Park and Recreation Board set the wage rates for seasonal and temporary workers apart from the CBA. The essence of this case is whether the Union knew that the affected employees were working more than the requisite number of days/hours to meet the statutory definition of public employees. The Union showed that they did not know this until it investigated the voluminous records of the seasonal and temporary employees, which ultimately gave rise to this grievance. This 2007 letter, while acknowledging the potential for the issue, did not identify any particular employees whom the Union alleged should be included in the unit. The Union also did not do its exhaustive investigation to verify which employees worked more than 67 days (or 100 days as the case may be) until after this letter. Effective date of back pay award The grievance was formally filed on January 31, The Union asserted that it was verbally filed on September 30, 2011, and further asserted that the issue has been known to the parties since the 2007 letter. The Union contended that this is a statutory case for unpaid wages and the two-year statute of limitations should be applied here to allow for back pay damages. While this case involves wages, it is not a statutory wage claim. Minnesota Statute 54.07, subdivision 5, makes specific reference to a claim for wages or overtime or damages, fees, or penalties accruing under any federal or state law... The flaw in the Union s argument is that this matter does not arise under federal or state law but rather under the CBA. The essence of the Union s claim is that there was a violation of the recognition clause of the CBA in that some seasonal and temporary workers were working the requisite number of hours to be considered public employees under PELRA and as such were entitled to representation by the Union and to the wages set forth in the CBA. The next question is are the affected employees then to be treated as bargaining unit members? It is longstanding arbitral precedent that continuing grievances, which typically involve wage claims, may be allowed and decided on the merits even though they are not filed with a certain time following the initial occurrence. Any back pay is limited to the time when the grievance was filed. The Union was concerned about this as early as 2007 and could have filed the grievance subject to further investigation much earlier than it did. Further, the verbal grievance filed in September 2011was nothing more than the same sorts of concerns that had been raised for years and which had been discussed in contract negotiations. Thus, the date of filing of the grievance was January 31, 2012, and is the effective date for any award of back pay. The Union also brought forth an alternate theory that at the very least, the back pay should extend 90 days prior to January 31, 2012, because the CBA specifically references PELRA and allows for 2

3 violations to be processed through the grievance procedure. By analogy, cases involving violations of PELRA or actions for the failure of representation, the Duty of Fair Representation (DFR) cases, are subject to a 90-day limitation period. The CBA provides: Both parties fully recognize and acknowledge the terms and conditions of the Public Employment Labor Relations Act and that upon claim of violation thereof, either party may invoke the provision of the grievance procedure herein set forth. First, the CBA refers to a claim of violation of PELRA. This case is not about a violation of PELRA but rather a claim of a violation of the CBA in that the City was using seasonal/temporary workers for more than 67/100 days per year as applicable, and not paying them contract wage rates. There is nothing in PELRA compelling a given wage rate. The application of Minnesota Statute 179A.03, subdivision 14(b)(2) This subdivision provides: (b) The following individuals are public employees regardless of the exclusions of paragraph (a) clauses (5) and (6) [part-time or temporary/seasonal employees]: (2) an employee hired for a [temporary/seasonal position not more than 67 days in a calendar year], if that same position has already been filled [as temporary/seasonal position not more than 67 days in a calendar year], in the same calendar year and the cumulative number of days worked in that same position by all employees exceeds 67 calendar days in that year. For the purposes of this paragraph, same position includes a substantially equivalent position if it is not the same position solely due to a change in the classification or title of the position... The issue rests on the interpretation of the term same position. The Union equated same position as meaning the same type of work across multiple jobs done by different employees. The term is somewhat ambiguous but the legislative history and other interpretative pronouncements both in statute and case law show that same position means the same job held by one employee not all jobs cumulatively. Further, the interpretation by the Bureau of Mediation Services is entitled to some deference. As the BMS ruled in AFSCME 65 and City of Hibbing, BMS 92-PCL-423 (1991), a position is one person performing a job. It is only after that one person works 67 days in a calendar year that they become a public employee under PELRA. If carried to its logical absurdity, the Union s argument could result in employees who work only a few days in a calendar year being entitled to CBA wage rates when that is not contemplated by statute. For example, if the City hired 67 lifeguards, all of whom perform the same work even though they would work different hours at different locations, and those 67 employees worked a single day each, they would all be considered public employees and entitled to CBA wage rates as of their second day. This is contrary to the intent and language of the statute. Instead, the statute was designed to prevent serial hirings, where a public employer attempts to circumvent a CBA by hiring a person in the same job for 67 days, and then another doing the same job for another 67 days, and so forth. There was no evidence of that here. 3

4 Part-time employees The Union asserted that there is insufficient evidence to support the City s claim that certain employees meet the exemption for part-time employees under PELRA. Minnesota Statute 179A.03, subdivision 14(a)(5), provides: [P]art-time employees whose service does not exceed the lesser of 14 hours per week or 35 percent of the normal work week in the employee s appropriate unit... This exact question has not been squarely dealt with by the Minnesota Courts interpreting PELRA, but, on these facts, even assuming that to be the case, the employees the City contended did not meet the threshold to be considered public employees. The summaries provided by the City were not shown to be inaccurate or that any of the information in them fabricated or inaccurate. The City showed that it appropriately applied the BMS six-part test for determining whether an employee meets the threshold under Minnesota Statute 179A.03, subdivision 14(a)(5) as a parttime employee. That test requires that the employee first determine the numbers of hours in the normal work week of the bargaining unit in which the employee would be included. Second, one must calculate the exclusion i.e., 14 hours per week or 35% of the normal work week, whichever is less. Third, the employer must identify the previous calendar year as required by statute. Fourth, calculate the number of weeks during which the employee worked during the previous calendar year. Fifth, determine the number of weeks worked in which the employee s hours exceeded the number set forth above in the second step. Finally, determine if the majority of those weeks worked exceed the lesser of 14 hours or 35%. If the employee worked a majority of the weeks in the previous calendar year then the employee is a public employee under PELRA. If they did not, then the opposite is true and the employee is not covered by the CBA and is not a public employee for purposes of PELRA. Student exemption The operative language is Minnesota Statute 179A.03, subdivision 14: (a) Public employee or employee means any person appointed or employed by a public employer except: * * * Subd. 6 employees whose positions are basically temporary or seasonal in character and:... (ii) are not for more than 100 working days in any calendar year and the employees are under the age of 22, are full-time students enrolled in a nonprofit or public educational institution prior to being hired by the employer, and have indicated, either in an application for employment or by being enrolled at an educational institution for the next academic year or term, an intention to continue as students during or after their temporary employment; The evidence fell short of these statutory requirements. While the student employees worked less than 100 days and were all under the age of 22, the other requirements were not met. The employment application simply asked, Are you a full time student? The form did not indicate whether these students are enrolled in a public or non-profit educational institution, as opposed to a for-profit institution. Neither does it indicate whether the students were enrolled in school or intended to continue after the temporary employment as required. Some certainly could have been but the evidence did not establish which, if any, of the claimed student employees were. The City 4

5 bears the burden of establishing the exemption and must fully comply with the statute in order to claim it. The City failed to establish that any of the seasonal/temporary workers met the statutory exemption for students under the 100-day. Thus, any employee who was alleged to be exempted as a student but who worked more than 67 days in a calendar year is entitled to CBA wages just as the non-student employees are. Benefits issues/800 hours worked pursuant to CBA There were two employees who worked more than 800 hours in 2012, which is the requisite number of hours under the CBA to warrant payment of fringe benefits. The question was whether they were entitled to any actual benefits as a result of working 800 hours. Both individuals reached 800 hours in October 2012 but also were terminated or left employment in October Because there were no approved holidays in that time span, neither was entitled to any holiday pay. Further, because both left employment in October 2012 and would not have been eligible for health insurance benefits until November 1, 2012, neither are entitled to health benefits. They also would not have been entitled to vacation pay since they left within six months of their employment, which is the contractual time frame for vacation pay. Accordingly, the City s calculation of benefits is awarded. Logistics of back pay award including holiday pay deductions The City claimed that there were various errors and that some employees received an overpayment of holiday pay when they were not entitled to it. The City sought to have the award reduced by the amount of those overpayments to the affected employees. Such a deduction is disallowed by Minnesota law and cannot be awarded. See Minn. Stat , subd. 1. There was no evidence that any of the affected employees have executed the required documents to allow this sort of deduction from their pay. Thus, the City will have to deal with these employees separately. The Union sought something of an extraordinary remedy in asking for an escrow account to be set up along with a website. The Union also sought to have the City share the contact information for any of the affected seasonal and temporary employees for verification purposes. The Union acknowledged that some of these individuals may be hard to locate and any unpaid money left be paid either to the Union for dues or the arbitrator direct the parties to designate a charity and give the leftover funds to that entity. The City correctly pointed out with respect to the latter point that such a remedy likely would violate the public purposes doctrine applicable, so this request is outside of the arbitrator s power. This is a somewhat unusual case in that in the typical back pay case, the back pay is awarded to a known entity, i.e. the individual reinstated after discharge or to a group of bargaining unit members whose identity and contact information is known to the union and the employer. Here, these employees were not known to the Union because they were never considered part of the bargaining unit until this case arose. While the City knew who they were, these employees were seasonal and temporary and likely did not expect to stay with the City in most cases for long periods of time. However, the standard sorts of logistics considerations for payment of back pay can still apply. Setting up a separate website is unnecessary. While there were multiple employees who are entitled to back pay, that number is not so vast that a website is needed. Thus, 5

6 the City is to simply include a link on its current website that should advise any affected employee about this. The substance of that is within the purview of the City. The City is directed to provide the relevant contact information for the employees affected by this award and to allow the Union access to it to verify payment of any back pay ordered. This is something of an unusual remedy but this is something of an unusual case. Further, such a requirement does not appear to be unduly burdensome nor will it violate any applicable state law or rule by allowing the Union access to employees who have now been ordered to have been part of the applicable bargaining unit. There remains the question of what to do with any leftover funds that are not paid due to employee unavailability or inability to locate them. The Union s request is too speculative to warrant a specific order since it is unknown at this time how many employees will be affected by this award or whether the City will be unable to find them. If after diligent efforts the affected employees are unavailable or cannot be located, any leftover funds are subject to state law with respect to the disposition of monies that may be due to back pay but cannot be paid due to the inability to locate employees in question. Date of back pay January 31, 2012 (date of filing of grievance) Award Application of Minn. Stat. 179A.03, subd. 14(b)(2) City s application of 67-day rule and calculation of damages Part-time employees Employees identified by the City as part-time are not public employees under PELRA Student employees Employees alleged to be students but worked more than 67 days in a calendar year are entitled to CBA wages after 67th day Fringe benefits Two employees who worked more than 800 hours are not entitled to fringe benefits Logistics of back pay award including deductions for holiday pay Employees with overpaid holiday pay may not have their pay deducted City to include a link on its website regarding this matter and provide contact information for those are interested in this or who may have a potential back pay claim City to provide Union with contact information for affected employees to verify payments Any funds left over or which cannot be paid to affected employees due to unavailability or inability to locate is subject to state law 6