By Jim Cline and Troy Thornton
In Tualatin Fire and Rescue District, 2020 BNA 1300, an Oregon Fire District implemented a 42-hour work schedule following failed negotiations with the International Association of Firefighters local representing a group of Oregon firefighters. Because the parties had specific CBA language requiring Union agreement for any schedule changes, Arbitrator Kenneth James Latsch ruled that Management violated the agreement when it implemented the new schedule without doing first gaining Union approval and ordered the payment of overtime as an appropriate remedy.
Beginning with the contract covering 2012 through 2015, the parties’ CBA established two work schedules: a 40-hour workweek, and a shift schedule that consisted of 24 hours on-duty followed by 48 hours off-duty (as well as an off-duty Kelly day every ninth shift). During the negotiation of that CBA, TVFR accepted the Union’s proposal to limit schedule changes without first gaining the approval of the Union. In 2019, the parties agreed to a scheduling MOU due to now requirements posed by a change to Oregon law. Following the implementation of the MOU, Management established a new 42-hour work schedule for certain employees.
The Union argued that the implementation of the new 42-hour work schedule, without first gaining the approval of the Union, violated the CBA between the parties. They relied upon the language negotiated for the 2012-2015 contract, which states that changes to the regular schedules would require “agreement between Labor and Management.” Additionally, the CBA contains language stating that employees working 40-hour schedules are owed overtime after working more than 40 hours in a seven-day stretch.
Management attempted to rely on the plain language of both the CBA and MOU, claiming that they were not prohibited from implementing a 42-hour schedule, and met all of the CBA requirements for doing so. The employer also argued that the Union simply did not meet its burden of proving that their actions violated the CBA, which is typically required of the side claiming that there was a violation.
Arbitrator Latsch examined both the CBA and MOU to determine the “plain meaning” of the language contained in the documents. He found that the CBA language negotiated during the 2012-2015 contract cycle, specifically the language stating that there must be an “agreement between Labor and Management,” established stronger protections for the Union than the standard rule of law requiring bargaining to impasse over such issues.
In most cases, contracts deal with the parties’ mutual obligation to negotiate concerning the mandatory subjects of collective bargaining, wages, hours, and conditions of employment. Article 6.2.2 provides much stronger language, however. Article 6.2.2 specifies that pay and benefit accrual may be converted in an alternative workweek only after “agreement between Labor and Management”. In other words, the parties have recognized that there must be an agreement before changes could be made. This is more than the traditional requirement of bargaining to the point of impasse on a particular issue, and it narrows the Employer’s scope of action on any particular issue concerning alternative shift schedules.
Because that language is clear, Arbitrator Latsch found that Management did in fact violate the CBA. In his ruling, he determined that Management had to discontinue its use of a 42-hour schedule and reinstate the schedule in place prior to the change. Additionally, Arbitrator Latsch ruled that employees must be made whole for any hours worked under the 42-hour schedule, which included overtime for any hours worked over 40 in a given week.
It is noteworthy that the union also had a pending ULP complaint. Normally a unliteral change would be the subject of a ULP and absent clear “waiver” language, they would be successful on such a complaint on these facts. Presenting the issue here to an arbitrator did provide the union one additional remedy that may or may not have been extended from the ULP process — it was able to get overtime for hours worked under the unilaterally implemented schedule that exceeded the default under the CBA. This reflects the principle and practice of arbitrators to always find some type of meaningful remedy for any breach of contract.
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