By Mitchel Wilson
In Baltimore County, Arbitrator Richard Trotter granted the Union’s grievance for lost compensation for Deputy Sheriffs who are subject to being called into work while they are off duty.
For twelve years, Baltimore County would periodically require Deputy Sheriffs to carry emergency pagers off duty. The Deputies needed to be within a certain range of the station for the pager to get a signal. If the County called the Deputies in, they would have to report for duty within a “reasonable” time, approximately an hour. The County did not compensate the Deputies for time that they were subject to call, but paid overtime for when they were actually called in. Any Deputy who failed to appear and report could potentially face discipline.
The labor agreement between Baltimore County and its Sheriff’s Deputies, a Memorandum of Understanding (MOU), describes a “standby” status pay. Deputies on standby must remain at or near their homes and immediately respond to calls for duty and receive one-fourth time on standby.
The Union alleged that the County had breached the CBA not paying deputies on “standby.” The County countered that the Deputies were not technically on “standby.” After the Union filed the first step, the County released a memorandum establishing an unpaid alternative to “standby” wherein Deputies must carry and respond to pagers, but may leave their homes. The Union believed the new “on call” was really “standby” under the MOU and that the County must still compensate them. The County asserted that it has the power to define standby duty which restricts Deputies to staying in their homes, which they did not.
The arbitrator first considered whether the CBA conflicts with state law, then whether this reassignment of deputies is within the County’s power, and lastly whether the parties’ practice was a valid interpretation of the CBA.
Maryland state law defines work to include “time during which the employee is not on the employer’s premises but is on call and waiting for work, and the employee’s personal activities are substantially restricted.” The arbitrator suggested that not paying Deputies was unlawful by including testimony that they were “restricted” because they could not engage in leisure activities like seeing a movie or sporting event.
The arbitrator next concluded that hours and rates of pay are mandatory subjects of bargaining despite the County’s right to define what “standby” is. Being in control of when and how often deputies are on standby is distinct from creating a new work classification.
The arbitrator next discarded the past practice argument. For a minimum of twelve years, both parties have interpreted standby status the same way. By all evidence, the only thing that changed and prompted the grievance, is that more Deputies were assigned to off duty work. However, the arbitrator concluded the practice could not overcome the express language of the CBA.
To place past practice on a par with the parties’ written agreement would create the anomaly that, while the parties expend great energy and time in negotiating the details of the Agreement, they unknowingly and unintentionally commit themselves to unstated and perhaps more important matters which in the future may be found to have been past practice.
