By Jim Cline and Geoff Kiernan
In the City of Forest Lake, an arbitrator ruled that a Minnesota city did not violate its collective bargaining agreement when it required Officers who attended training on their days of to “flex” their work hours to limit overtime. Despite the fact that the Union tried to official repudiate the practice in bargaining the arbitrator found that this policy was not something that union was able to repudiate.
This issue concerned the city’s “2080 time” where an officer is required to “pay back” 78 hours of “flex” time each year. The Officers are paid 80 hours a pay period but only work 77 hours, thus they are required to pay back the extra hours throughout the year.
It was the Union’s position that the officers should be able to choose how they pay back there hours. If the officers choose to attend a training event on their day off they should be able to choose whether their training hours should be used as “flex hours” or overtime hours. The Union argued that the CBA was very clear in stating that overtime should be given for work hours “in excess of the regular scheduled shift”. Thus, since training shifts are done in excess of regularly scheduled shifts they should be compensated at an overtime rate. While the Union never explicitly conceded that there was a past practice of management “flexing” hours, during bargaining they explicitly and clearly repudiated any potential past practice.
The city argued that its “2080” time was part of its inherent right to establish work schedules and direct its workforce. It further argued that while officers did bid on shifts, the management rights clause of the contract explicitly states that the city can change the schedule and there are no minimum or maximum number of hours guaranteed for any shift. The city also noted that the Union sought to change this language during bargaining but failed to, so it was attempting to gain through arbitration what it was unable to gain in negotiation. Furthermore, the city claimed that it had been flexing schedules in this way for over 30 years and many officers benefited from this practice as it allows officers to payback time owed to the city while gaining useful skills.
As for the union’s repudiation, first the city argued that the union could not repudiate a managerial right and second by repudiating the practice the union was essentially acknowledging its existence, which it refused to do during the arbitration. The city argued that if the union wanted to change this past practice they must do it at the bargaining table with explicit contract language.
The arbitrator first noted that CBA is silent on the question of whether flexing of schedules for training time was allowed or not. The arbitrated explained that there were several other contracts which the union was party to that did have explicit language referring to the flexing of schedules. This meant that this clearly was an issue which the parties could have bargained over. In absence of any language the arbitrator ruled that the management rights clause must govern:
As a general proposition, a broad management rights clause is subject to the specific limitations in the CBA. Here there is no specific limitation and the management rights clause appears to allow the flexing of schedules under these unique facts and circumstances. Where there is no specific limitation the broad management rights clause can indeed prevail.
This means that under the management rights clause as it was written in this contract, officers had an understanding that management had the right to change their schedules around. The arbitrator noticed that this practice has been occurring of over 30 years, so all the parties were aware of the practice.
The arbitrator was also unconvinced by the unions “repudiation” of the past practice. First, he explained that the union’s repudiation of the practice essentially affirmed the city’s position that there was a past practice. The arbitrator also explained that a union cannot repudiate a managerial right simple because the employer has exercised it consistently over time. He explained:
The right to flex schedules is not found the CBA but neither is there any specific limit on it either. Thus to the extent that this is a management right no repudiation of it would have been effective anyways.
Again the arbitrator made clear that the only way for the union to change this past practice would be through bargaining new contract language, not through grievance arbitration.
This case is a good example of the type of case involving strong competing arguments over the meaning of management rights language. The union presented a decent argument by citing the lack of specificity in the management rights language. Normally management rights language must be very specific to have a waiver effect. In this case, though, the arbitrator found the language to be specific enough.
This case also identifies the risk involved in raising in issue in bargaining and then abandoning it. Where the CBA language is ambiguous, it may seems desirable to clean up that ambiguity but as shown by this case, if a party raises and issue but then fails to have its proposal adopted, that bargaining history may be counted against it in later grievances.
