By Jordan Jones
In City of Toledo, the arbitrator sustained an Ohio firefighter’s grievance for being denied use of 24 hours of compensatory time off, after reviewing the Collective Bargaining Agreement language.
On April 13, 2012, the grievant made a request for 24 hours of compensatory time off for July 21, 2012. Article 2125.66 allows employees to take compensatory time off at the same rate of pay they would have received for overtime work. Article 2125.66 states that “[w]henever possible, the request shall be made two (2) tours prior to the requested days off . . . whenever the forecasted power for the day and shift requested is [105 members].”
The City contended that the grievant’s request for time off was “premature” under the CBA language. The City stated that “[t]he forecasted manpower strength for the day and shift does not take place until 2 tours prior” and that the request was made months before the actual day off in violation of Article 2125.66.
The union argued that the language of Article 2125.66 is unambiguous in that all a grievant has to do is make a request that is (1) at least two tours prior and (2) when the forecasted manpower strength for the day is to be 105 members.
The arbitrator agreed with the union’s argument, determining that the language was clear in that the request only had to be made at least two tours prior (i.e., a tour is a 24 hour on-duty shift with 48 hours off-duty) when the forecasted manpower strength was 105 members. He noted that there were previous instances in which comp time requests had been granted months before the requeted date. The arbitrator further noted:
Were I to sustain the position of the City, it would be contrary to the terms of Article 2125.66 as written and agreed upon by the parties. I cannot engage in the re-writing of the Agreement which the parties entered into. The appropriate place for altering the writing of the contract is for the parties to engage in doing so, at negotiations.
The arbitrator held that the grievant had requested the time off in compliance with the two tours prior requirement, months in advance of the actual day off, and the “forecasted manpower strength” had been determined to be 105 members by a “staffing sheet” from the staffing office that was provided to the City.
Editor’s Note (Jim Cline): This grievance was sustained based on the plain wording of the contract. Although the arbitrator didn’t go into details in his analysis, likely because the case was so straight forward, normally, the principle of “plain meaning” controls a grievance of this nature. Under the “plain meaning” doctrine, which the language is clear on its face, there is no need to delve into other aspects of bargaining history of the parties stated intentions. Those become factors when the language might be seen as ambiguous.
Here, there was nothing ambiguous about the term “at least.” The City’s argument that the request had to go in, not more and not less than two tours preceding the requested date seems absurd. The arbitrator noted some past practice instances, but those only added further support to the union’s grievance and it likely would have been sustained even in the absence of any documented past practice.
