By David Worley
In Town of Canton, 131 LA 876 (Gnocchi 2013), the arbitrator found that because the overtime provisions of the CBA did not reference “Private Duty” work, and there was a separate provision detailing the compensation for private duty work, the grievant was not entitled to the overtime rate of pay for that private duty work. The arbitrator found the lack of applicable language in the overtime provision determinative, and considered private duty work, although assigned by the department and done in uniform, to be essentially work performed for a third party.
The grievant worked five 8-hour days and then worked two 4-hour days in private duty work, first in an interview board and then as a shopping mall officer. The town was reimbursed by the shopping mall for the officer’s services.
The relevant CBA provision concerning overtime stated:
8.2 If any officer works seven consecutive days, any time worked on the seventh day shall be paid at two times the employee’s applicable rate, except that if an employee is ordered in to work on his/her second day off, he/she shall be paid two times his/her regular rate of pay, if even he/she did not work on his/her first day off…
The relevant provision regarding private duty work stated:
9.0 The term “Private Police Duty” for the purpose of this Article shall mean Private Police Duty for which the Town is reimbursed for such police services by a third party.
[9.2]b. All other private duty work, four (4) hours minimum at time and one-half (1.5) the employee rate, any additional hours beyond four (4) hours shall be paid at time and one-half the employee’s rate.
In a very brief discussion, the arbitrator found that because the overtime provision did not reference private duty work, there was no intention to consider this work when calculating overtime.
There is no language in Article 8 that the town’s liability for overtime is dependent upon an employee’s work for a third party. [T]he parties did not reference Article 9 private duty work in Article 8. The absence of such a reference is consistent with the lack of intent to apply private duty work to Article 8 overtime.
Finally, the employer’s position was supported by lengthy past practice, which the arbitrator described as “an unwritten part of the contract.”
