By Jim Cline and Jordan L. Jones
In Village of Shiloh, 133 LA 234 (Suardi 2013) the Arbitrator held that the Village did not violate the CBA with the Village’s police officers when it scheduled certain cover shifts not explicitly provided for in the CBA.
The FOP contended that the cover shifts from 10:00 a.m. to 10:00 p.m. and 3:00 p.m. to 3:00 a.m. were not explicitly provided for in the CBA. In addition, it argued that shift stability was an important concern of the police officers during contract negotiations and therefore the already defined cover shifts described in Section 19.1 trumped the management rights clause of the CBA.
The Village replied that hours of work language found in Article 19 — its scheduling authority articulated in the management rights clause — allowed the given cover shifts to be scheduled. Specifically, the hours of work article provided that “start time may be adjusted due to the needs of the department.” In addition the Village contended that the management rights article permited the modification of shifts for efficiency, safety, and other needs of the department and allowed the rescheduling of “work hours, work shifts and shift hours.” The employer also pointed out that the officers had been working these assigned cover shifts for two years before the FOP grieved it.
The Arbitrator noted that both parties’ interpretations of the CBA were reasonable enough to control the outcome of the grievance and therefore extrinsic evidence would need to be evaluated. The Arbitrator stated that “[i]t has long been recognized that the contracting parties’ course of dealing in advance of a dispute is of considerable interpretative weight.” The Arbitrator found that:
[O]ver two (2) years [had] passed from . . . [the Village’s] implementation of the cover shifts . . . and the date of the instant grievance. During that interim cover shifts were routinely assigned and worked by the Village’s officers. To be sure, the officers may have disliked working the shifts, and the Union may have taken the position that it did not recognize them. But at the same time, the shifts were worked, over and over again and, so far as appears, no officer refused or objected, other than the above-cited grievances.
Ultimately, the Arbitrator denied the FOP’s grievance over the Village’s practice of scheduling certain cover shifts. The Arbitrator held that:
[T]he Union had the opportunity to negotiate over the cover shift issue, and the [V]illage cannot be faulted for the Union’s refusal to do so. Similarly, the Union’s stated refusal to recognize cover shifts does not overcome the evidentiary weight and effect to be given to officer’s long-standing acquiescence and voluntary performance of the shifts after they were re-introduced. Finally, while reasonable minds may differ on the effectiveness of the disputed cover shifts relative to the needs of the department . . . creation of the cover shifts themselves was within the Chief’s authority to direct operations and to determine the methods of work authorized under Article 4.1.
Although the failure of the Union to grieve for two years was curious, that failure seems to have been only a secondary factor in the Arbitrator’s decision. More controlling was the express langauge in the contract that gave management the right to change the work schedule.
Although putting express language defining the work schedules in the contract often will trump general management rights language concerning the right to set the work hours, in this case, the same hours of work clause also provided management an express right to change the work schedule. That language, together with the Union’s acquiesence to the addition of the cover shifts, led the Arbitrator to conclude that the parties had reserved to management the ability to add the extra shifts.
