By Geoff Kiernan
In City of Butler, an arbitrator held that the City did not violate its CBA when it paid a police sergeant time and a half in overtime pay for working during a holiday parade, rather than providing both overtime pay and holiday pay premium.
The Union asserted that the contract language was clear in that the Sergeant was entitled to both overtime pay and holiday pay. The Union agreed that the City had compensated the Sergeant properly under Article V for overtime pay, but failed to compensate the Sergeant under Article X with holiday pay. The Union maintained that under Article X of the CBA, officers are entitled to a holiday premium for working certain holidays, including Veteran’s Day, among others. A separate and independent article, Article V, mandated that officers receive an overtime premium for any work done in excess of 12 hours in any day or in excess of 40 hours in any week. The Union argued that each of these articles was independent and thus required separate premiums.
The City maintained that “compounding” these Articles is inappropriate under the CBA, given the past practice and history of overtime pay on holidays. The City emphasized that for about 19 years, officers who worked additional hours beyond his or her shift on a holiday were paid overtime (1.5), but not given an additional holiday premium. The City asserted that the Union is seeking in arbitration what it must obtain at the bargaining table.
The Arbitrator agreed with the City’s position, that since the CBA has been interpreted in the same way for over 19 years it is not the role of the Arbitrator to change that interpretation. The Arbitrator explained that it was not his job to determine “the best or most logical interpretation” of the Agreement, “but instead to determine what the Parties themselves meant by the language”. The Arbitrator went on to explain:
Sometimes one of the best clues to what the parties intended is how they themselves have applied their language, especially when they have retained the same language in contract after contract, knowing how this language has been applied.
While the Arbitrator agreed that the Union’s interpretation was plausible, the history of the contract simply did not support their position. The Arbitrator explained that:
In this case, the history is that the officers working overtime on holidays received a single premium. By choosing to reuse the same language against this history, the Parties conveyed that it was being applied in the manner they had intended.
Editor’s Note (Jim Cline): Grievances of this type involving overtime hours on a premium holiday arise frequently. What matters most to the outcome is the past practice.
Where a CBA provides both a holiday premium and an overtime premium, arbitrators, applying what is referred to as the “dual inconvenience” theory, have found that both premiums should be paid. Therefore, employees are entitled to double time, and under some decisions even a 2.25 premium (calculated by multiplying, not adding the two premiums.) But most arbitrators have also indicated that the ability to enforce the right to both premiums may be lost where, as here, the parties adopted a long standing practice to only pay a single premium.
This case demonstrates why it is important to enforce the written terms of your CBA. While it is clearly logical that someone working overtime on a premium holiday should be paid more than someone simply working their regular hours on the same holiday, the logic of that claim will not override past practice. If you are adopting holiday premiums in your CBA for the first time, you should act promptly to ensure that your members receive both premiums. If your CBA has long recognized holiday premium pay, but you have never enforced the dual premium right, you’ll have to attempt to recoup that at the bargaining table.
Sometimes we find that these clauses are unevenly enforced, with employees inconsistently seeking, or supervisors inconsistently allowing, dual premiums. In such cases, it’s likely that an arbitrator would find no clear past practice was adopted. But in such cases, it’s likely that a majority of arbitrators, faced with evidence of uneven enforcement, would then fall back on the overriding logic of the “dual inconvenience” theory and grant double time.
