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| AFSCME,
Local 3657 for Jaffrey Police Department Employees
Complainant Respondent |
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APPEARANCES Representing AFSCME, Local 3657: Representing Town of Jaffrey: Also appearing: BACKGROUND The American Federation of State, County and Municipal Employees (AFSCME), Local 3657 (Union) filed an unfair labor practice charge against the Town of Jaffrey (Town) on December 18. 1998 alleging a violation of RSA 273-A:5 I (h) for breach of contract for failing to follow the grievance procedure, namely arbitration, provided in the collective bargaining agreement (CBA). The Town filed its answer on January 4, 1999 after which this case was heard by the PELRB on January 26, 1999. FINDINGS OF FACT 1. The Town of Jaffrey is a "public employer" of police officers and other personnel in the operation of its police department within the meaning of RSA 273-A:1 X. 2. AFSCME, Local 3657 is the duly certified bargaining agent for all regular full-time and part-time police officers and sergeants employed by the Town. 3. The Town and the Union are parties to a CBA for the period January 1, 1998 through December 31, 1999, further identified as Joint Exhibit No. 1. That document contains articles pertaining to management rights (Article 2), grievance procedure (Article 8) and holidays (Article 16), pertinent parts of which read as follows: ARTICLE 2
A. Except as otherwise expressly and specifically limited by
the
B. Without limitation, but by way of illustration, the
exclusive
1. To direct and supervise all operations, functions and
2. To determine the need for a reduction or an increase * * * * * 5. To assign and distribute work.
6. To assign shifts, workdays, hours of work, and work * * * * *
C. The exercise of any management prerogative, function, or
right ARTICLE 8
A. The purpose of this procedure is to provide an orderly
method
B. For the purpose of this Agreement, a grievance is defined
as only * * * * * F. Steps in the Grievance Procedure * * * * *
Step 4. If the decision of the Town Manager does not resolve
the * * * * * ARTICLE 16
All regular full time employees covered by this agreement
shall be paid for the following
New Years Day (Jan.
1)
Civil Rights Day (3rd Mon/Jan)
An employee may take an actual day off if it falls within the
employee's regularly 4. On or about October 12, 1998, Michael J. Prince, a bargaining unit member and chapter chair, filed a grievance, identified as Joint Exhibit No. 3, alleging a violation of Article 16, to wit:
Article 16, Holidays, clearly states that an employee may take
an actual 5. On November 16, 1998, town Manager Jonathan Sistare wrote to union representative James Anderson denying the grievance (Joint Exhibit No. 2.) and saying it was not arbitrable, it wit:
I have received copies of correspondence, which you have sent
to the PELRB
The language of the current contract is quite clear Article
2.B.6, "To assign shifts, 6. The Union's complaint, as explained at hearing, is that management, namely, the chief of police, is deciding whether non-patrol officers must work on the holidays stated in Article 16 and that, by so doing, the bargaining unit members relieved of the responsibility of reporting to work on those days are deprived of overtime opportunities under Article 12 for failure to achieve forty base hours of work during the work. The Union was unable to assert any established past practice with respect to this issue and, when queried on this matter, candidly said the practice had been "all over the place." Notwithstanding this, the Union maintains its position that if an employee does not opt out or ask not to work on a stated holiday falling during that employee's normal work week, then the chief, under the CBA, cannot require that employee work the holiday. 7. Town's position is that the Union is barred from processing this grievance because it has reserved rights under Article 2 to assign and distribute work and to assign shifts, workdays and hours of work and because the Union has agreed not to pursue disputes under this article under the grievance procedure (Article 2, Section C). DECISION AND ORDER This issue in this case is one of substantive arbitrability under the CBA. The authority for the PELRB to determine such an issue is of long standing since it "has exclusive original jurisdiction over the threshold question of arbitrability." School District #42 of the City of Nashua v. Murray, 128 N.H. 417, 419 (1986). In this ro1e, the PELRB "has the implicit authority to decide whether a dispute involves a matter addressed by a CBA." Appeal of Westmoreland School Board, 132 N.H. 103, 104 (1989). Our analysis, of necessity, must consider whether it can "be said with positive assurance that the arbitration clause [of the CBA] is not susceptible of an interpretation that covers the asserted dispute. See id. at 105 which quotes Steelworkers v. Warrior & Gulf, 363 U.S. 574, 582-83 (1960). "In grievance from arbitration, only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." Id. at 106 citing to Warrior & Gulf, 363 U.S. at 584-85 and AT & T Technologies, 475 U.S. 643, 647-50 (1986) (emphasis added) This brings us to the language of the CBA itself. The grievance alleges a violation of Article 16, pertaining to a specified entitlement that "an employee may take an actual holiday day off if it falls with the employee's regularly scheduled work week." (Finding No. 4). The CBA adds that "with the approval of the Chief." (Finding No. 3.) On its face, such a dispute would be subject to the broadly worded definition of a grievance found at Article 8 of the CBA, namely, "only those disputes involving the interpretation, application or alleged violation of any provision of this Agreement." This grievance alleges a violation of Article 16 of the CBA and clears the first hurdle in being preemptively arbitrable unless there is an express provision excluding it from arbitration. The practical effect of the Union's grievance is to assert the converse of the article being grieved. An employee's right under the CBA to ask to take an "actual day off" during his or her regularly scheduled work week, with the permission of the Chief, cannot be equated to being able to insist that he/she be permitted to work when not scheduled or when not requested to do so by the Chief or other duly appointed superior in the department. Notwithstanding any confusion which may have arisen about taking "an actual day off" on one of the twelve days (Thanksgiving being a double holiday) listed in Article 16 of the CBA and the lack of any clearly established past practice or interpretation related thereto, we find the language of Article 2 to be conclusive on its face. When we move from the more general provisions of holidays in Article 16 and from the definition of a grievance in Article 8 to the specific provisions of Article 2, we find compelling evidence, inclusive of an express provision, that this grievance is not arbitrable. First, the converse of the language found is Article 16 (relative to the right of being able to take "an actual day off," with permission, on a holiday) is not equivalent to being able to assert a right to work on that holiday if one's services are not required on that day. The contract language does not protect one's right to insist on working; it only protects one's limited right to take "an actual day off." Second, when the issue at hand turns to one's right to work on a holiday, even if those services are not scheduled or requested by the public employer, it exits the pure realm of holidays and intrudes into matters of scheduling. Scheduling matters are addressed in Article 2 and are specifically reserved to management, namely, assigning and distributing work and assigning shifts, workdays, hours of work and work locations. (Finding No. 3.) Article 2 (c) of the CBA continues by stating that "the exercise of any management prerogative, function or right which is not specifically modified by this Agreement is not subject to the grievance procedure [or] arbitration. .. ." (Finding No. 3.) This establishes both an express provision and a positive assurance that the parties did not intend a grievance of the type filed (Joint Exhibit No. 3) to be subject to the grievance and arbitration procedures of the contract. The ULP is DISMISSED. So ordered. Signed this 10th day of February, 1999. /s/ Jack Buckley By unanimous decision. Alternate Chairman Jack Buckley presiding. Members Seymour Osman and E. Vincent Hall present and voting. |
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