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APPEARANCES
Representing the New Hampshire Troopers Association:
James W. Donchess, Esquire
Representing the State of New Hampshire:
Thomas F. Manning, Director of Personnel
BACKGROUND
The New Hampshire Troopers Association (Association) filed
an unfair labor practice charge on June 26, 2002 pursuant to RSA 273-A:5, I
(e), (h), and (i), alleging that the NH Department of Safety/Division of State
Police (Division) and its agents undertook a prohibited unilateral action and
breached the Collective Bargaining Agreement (CBA) by not properly calculating
the amount of pay due to Sergeant James White, a Major Crime Unit member, who
had been called back to duty to investigate a crime on January 19, 2001.
Specifically, the Union claims that there is a "past practice"
governing the determination of that point in time at which the unit member's
paid time begins in the event that member is "called back" to duty.
The Division filed its answer with the PELRB on July 11,
2002. It denies that a past practice existed between the parties that
established the time the initial telephone call is received by a member as the
beginning of the member's return to work for purposes of calculating the
amount of time for which the member was to be paid. It denies that it
undertook any unilateral action that is prohibited by either the statute or
the parties' collective bargaining agreement. The Division maintains that the
method of calculation it utilized on January 19, 2002 in the case of Sgt.
White is set by the parties' CBA. The Division says that the initial start
time is that moment at which the member signs in electronically using his or
her vehicle's radio.
In addition to the statutory basis for this action as
referenced above, the grievance language specifically negotiated and agreed
upon by parties in their existing CBA stipulated that issues of contract
interpretation shall be arbitrated at the fourth and last step by the PELRB.
FINDINGS OF FACT
1. The State of New Hampshire through its Department of
Safety, Division of State Police ("Division") employs individuals,
including sworn officers and troopers, to perform certain public safety
services and therefore is a public employer within the meaning of RSA 273; A:
I X.
2. The NH Troopers Association ("Association")is
the dually certified exclusive bargaining representative for sworn personnel
employed by the Division of State Police up to and including the grade of
sergeant.
3. The Division and the Union are parties to a current
collective bargaining agreement (CBA) that began effective in 2001 and by its
terms, "shall remain in effect through June 30, 2003, or until such time
as a new Agreement is executed." (Joint Exhibit #1, ARTICLE 22.1). This
CBA also provides that in the event that are "grievances and disputes
arising with respect to interpretation or application of any provision of this
agreement" the last step in the resolution process provides for
adjudication by the PELRB which shall be final and binding. (ARTICLE 14.1 and
ARTICLE 14.5.1)
4. The parties' CBA contains the following language in the
Overtime clause (Article VII):
"7.2 The following provision constitutes the
understanding of the parties with respect to defining "time
worked" for the purpose of determining the number of hours required
for the overtime compensation eligibility.
"Hours worked" shall include all hours
actually worked and all hours on approved leave status including bona fide
meal periods, bona fide rest periods and absences due to a compensable
worker's compensation injury except any time worked for which specific
compensation provisions have been established elsewhere in the
Agreement."
"7.3 Employees called back to work without prior
notice on the same day after once leaving work or before the next regular
starting time, shall be guaranteed a minimum of not less than four (4)
hours compensation."
"7.4 Employees called back to work pursuant to 7.3
shall have
the 'hours worked' calculated from portal to portal."
5. Sgt. James W. White's relevant service with the Division
commences with his employment as a Probationary Trooper in August, 1989, his
assignment to the Major Crimes Unit in May, 1998 and his tenure in the rank of
sergeant in the Major Crimes Unit since May of 1999.
6. On January 19, 2002 Sgt. White received a "call
back" telephone call from Sgt. Kelly McClare, who was also assigned to
the Major Crimes Unit, informing him of a "suspicious death" case
that required Sgt. White to begin work to investigate this case. The call from
Sgt. McClare lasted between 5 and 10 minutes during which background
information was related and initial mobilization issues discussed that related
to the case that necessitated the call.
7. Sgt. White submitted a Weekly Duty Report, Duty Hours
(Association Exhibit #1) in the normal course of events that indicated that
his start time on January 19, 2002 was 0600 hours reflecting the time of day
he received the call requiring him to begin work on the assigned case.
8. Such calls are not uncommon in the Major Crimes Unit and
Sgt. White testified that since his appointment to the Major Crimes Unit in
1998 he had received between 20 and 30 so-called "call outs".
9. Major Barry Hunter has served the Division since his
appointment as a Probationary Trooper in March 1978 and continuing through his
most recent promotion to the rank of major in 2001. He reviewed Sgt. White's
Weekly Duty Report as part of an examination of all overtime used on that
particular case. In the course of that examination he reviewed Sgt. White's
report that indicated an "on" time of 0600 hrs. on January 19, 2002
and an "off" time of 1630 hrs. Major Hunter also reviewed a radio
log Unit Report (Association Exhibit #2) that indicated that Sgt. White first
signed "on" via his vehicle's radio at 0632 hrs. and that he signed
"off" at 1714 hrs. on that same day.
10. As a result of the overtime review, Lt. Russell Conte
requested that Sgt. White write a letter of explanation regarding the
conflicting times appearing on the two records. (Association Exhibit #1 Duty
Report and Association Exhibit #2 Unit Report). Sgt. White complied on
February 5, 2002 (Association Exhibit #3). In addressing the conflict of
starting time entry on the Duty Report 0600 hrs. and the 0632 hrs. entry on
the radio log Unit Report, Sgt White wrote as follows:
" As I have always been instructed to do, both by
my Field Training Officers
early in my career, and later by my various Supervisors, I listed the time
of
the telephone call as the beginning of my duty day…Never before has the
practice been questioned. In any call out, the initial telephone call
serves not
only as the initial notification and oftentimes a wake up call, but facts
of the
case, along with personnel and strategy considerations, are also
discussed, those issues are clearly duty related not personal in
nature." (Paragraph #2).
11. Sgt. White's letter of explanation also pointed out that
the inverse of conflicting time entries applied at the end of his work such
that his radio log Unit Report indicated the signed off on his vehicle radio
44 minutes later than he had indicated on his Duty Report for January 19,
2002.
12. A now retired, former Major Crimes Unit Commander, Lt.
David Eastman, testified that it was his practice throughout his career to
indicate the time at which he was called as the start time and as promoted
through the ranks from 1979 through July 2001 he never challenged the practice
of members of that unit putting down the time of the initial call as their
start time.
13. A now retired, former supervisor of the Division's
section referred to as "Investigative Services" that included the
Major Crimes unit, Major Nicholas Halias, testified that he had served with
the Division from 1969 to 2000 and that at the times in his career during
which he was "in charge" his best recollection was that the start
time used by members of the Division was the initial call. Under
cross-examination, he stated that he could not say "for a fact" that
all members of the Division calculated the start time from the initial call.
14. Trooper John Cody is a member of the Major Crimes Unit
and during his 14 years of service with the Division he has served in drug,
canine and patrol units before his present assignment to the Major Crimes
Unit. He has served in these units as a Trooper and as a Trooper Detective.
Prior to coming into the Major Crimes Unit, he served with Troop D and during
his service as a Trooper and as a Trooper Detective, he was paid from the time
he was first called. He testified that upon his assignment to Major Crimes
Unit, Lt. Conte who was a Sergeant at the time told him, "Now we work in
a professional unit… you put in and get paid for the time you are
called."
15. Sgt. Kelly McClare has served in the Major Crimes Unit
for 6 ˝ years and testified that, "When you received the call at home is
when you started." Sgt McClare has been involved in negotiating four
CBA's between the parties, including the current one. His recollection is that
Troopers senior to him utilized the "initial call" method of
determining the start time for duty. Sgt. Kelly testified that since January
19, 2002 the manner of computation in Major Crimes Unit has changed and that
he believed the manner of computation now varies by unit.
16. Trooper Lou Copponi has been in the Division since 1984
and has participated in every CBA negotiation since 1990. He testified that
the language of the current CBA regarding the specific type of "call
backs" at issue in these proceedings has remained the same in the
succession of the parties' CBA's. He did acknowledge that there had been other
changes to the CBA provisions that related to the number of hours (Article
6.3) and minimum hours for "call backs" (Article 7.6). However, he
testified that there have never been any changes to the type of "call
back" at issue in these proceedings as contained in Articles 7.2, 7.4 and
7.6.
17. The parties' current CBA contains language in Article
7.6 that has existed in the same form in prior collective bargaining units for
as long as any witness could recall:
"7.6 Any employee who is not on duty and is required by
the employer to appear in court or at an administrative hearing on behalf of
the Employer shall be compensated for all hours worked at time and one-half
the regular rate and shall be guaranteed a minimum of four (4) hours
compensation. The employee shall be paid portal to portal."
18. The term "portal to portal" is not defined in
the parties' CBA. This term has not been the object of specific negotiation
discussions used in the context of such "call backs" as Sgt. White
was subject to in these proceedings. The term does appear in several clauses
of the parties' CBA for specific application to situations such as court
appearances, special details and call backs "to work without prior notice
on the same day after once leaving work or before the next regular starting
time" (Joint Exhibit #1, Article 7.3). (See further, Articles 7.3, 7.4
and 7.6 of the parties' CBA, Joint Exhibit #1).
19. The term "portal to portal" also appears in
the parties' CBA in the context of mileage reimbursement as follows:
"19.5 All employees shall receive portal to portal mileage reimbursement
when on call back." (Joint Exhibit #1)
20. Trooper Copponi testified that the method of computing
hours for "call backs" in the past was for members of the Division
to utilize the initial time called as the starting time for duty hour
calculations and that there had been no conflicts with this practice until
January 19, 2002 and the Sgt. White situation in the Major Crimes Unit.
21. The existence of the practice of utilizing the initial
call as the start time was substantiated by offers of proof from several other
employees of the Division including individuals with much experience as
members of the Major Crime Unit, SWAT Unit, Special Investigative Unit or
Troop A.
22. When supervisors are making "call back"
telephone calls to other Major Crimes Unit members, the supervisors are paid
for their time speaking with individuals like Sgt. White.
23. Maj. Barry Hunter has twenty-five years of experience
with the Division. He has not served in the Major Crimes Unit. He has not
negotiated any of the parties' collective bargaining agreements. He testified
that once the supervisor is informed of the need to call back personnel and
starts to make calls, he or she is considered on duty. This duty status
continues even if that supervisor begins making calls and then attends to such
things as taking a shower before returning to make additional calls. He
testified that the time when Sgt. White is speaking on the telephone with his
supervisor he is entitled to pay.
24. On January 19, 2001, nine individuals were mobilized to
address the suspicious death case. Of those nine, seven utilized the
"initial call" time to begin work. Of the remaining two that did not
utilize the "initial call" time to begin work, one did not begin
service until 1000 hrs. because he was not home to receive the initial call
and the other was not scheduled for a day off, but rather was scheduled to
begin his duty at 0730 hrs. on that same day. Neither of these two individuals
testified.
25. Major Hunter used the terms "entered into
service" and "left service" to explain the beginning and end of
a member's work shift. When requested to explain these terms, Major Hunter
stated that, in his opinion, the start time was that "time in the
cruiser" when the member signed on to his or her radio using the call
sign "10-1" indicating he or she was "ready to serve".
26. Major Hunter did not discuss the method of calculating
the start time for "call backs" with either Major Halias, who, from
1995 to 2000, supervised the Investigative Services Unit of which the Major
Crimes Unit was a part, or Lt. Eastman who had supervised the Major Crimes
Unit members from 1996 to 2001. Major Hunter further testified that he was
"entitled" to give the collective bargaining agreement his own
interpretation.
27. Capt. Craig Wiggin has been employed with the Division
for 19 ˝ years and is presently the Commander of the Support Services Bureau.
He was assigned to the Major Crimes Unit for 5 ˝ years and served as
Assistant Commander to Lt. Eastman. During his career with the Division he
also was a Field Training Officer in Troop E. He testified that he could not
specifically recall telling Probationary Troopers how to record their
"call back" time.
28. Capt. Wiggin testified that he understood "portal
to portal" to mean the time one signs on and signs off from the vehicle
radio. He also believed that "time worked" included telephone calls.
His own practice was that he would "make a note of time called" but
didn't consider himself on until he signed onto the radio. In his supervisory
role, he never questioned Weekly Duty Report submissions.
29. In January 2002, the Division installed a reporting
technology referred to as "Computer Assisted Dispatch System (CAD System)
that generates documents like Association Exhibit #3, Unit Log. Capt. Wiggin
believes that it is a management responsibility to determine if "we are
paying our people in an efficient way" and that they should only be paid
for "time worked". Capt. Wiggin also expressed the opinion that in
the matter of "call backs" the supervisor making the call backs
should be paid for time used to make them and those receiving them, in this
instance Sgt. White, should not be paid.
30. No other documentary or testimonial evidence was
produced by either party to show consistency or variance between the start
times indicated on Weekly Duty Reports and radio log Unit Reports for other
Association members either prior to January 19, 2002.
31. The parties have previously agreed to the following
language in their CBA:
" 18.1 Waiver by either Party of the other's
non-performance or violations of any term or condition of this Agreement
shall not constitute a waiver of any other nonperformance or violation
of any other term or conditions of this Agreement, or of the same
nonperformance of (sic) in the future."
DECISION AND ORDER
The Public Employee Labor Relations Board
("PELRB") has primary jurisdiction to adjudicate unfair labor
practices and makes its determination in this matter pursuant to the authority
vested in it under the provisions of RSA 273-A:6. The Association alleges that
by reducing the number of reported hours worked by Sgt. White and other
members of the Major Crimes Unit on January 19, 2002, thereby reducing the
amount of compensation received by these individuals, the Division committed
statutory violations. The alleged violations are that such an act
constitutes a refusal to negotiate in good faith (RSA 273-A:5, I(e), a breach
of the parties' agreement (RSA 273-A:5, I(h) and the establishment of a law,
regulation or rule invalidating any portion of an agreement between the
parties (RSA 273-A:5,I(i).
The greater weight of the testimony, taking into
consideration the credibility of the witnesses most familiar with operations
within the Major Crime Unit, established that many, if not all members
followed a procedure among sworn personnel within the Major Crimes Unit of
fixing the time at which they received their initial "call back" to
work, by telephone call, as the beginning of their work time. This manner of
reporting the starting time for time worked when called back has existed for
many years within the Major Crimes Unit and, it also appears, in other units
and Troops within the Division. (Finding of Fact #12 and #13). Credible
testimony of a former commander of the Major Crimes Unit indicated that he
utilized that manner of reporting as he was promoted through the ranks and
until his retirement in July of 2001 (Finding of Fact #12). Many witnesses who
had diverse career service assignments, including within the Major Crimes
Unit, testified and others whose testimony was summarized as offers of proof
(Finding of Fact #20 and #21) established, that during their tenure with
various units within the Division they reported the start time for hours
worked on a call back as that time when they first received the call to work.
(Finding of Fact #14 and #15). One witness who had served for approximately
five and one half years in the Major Crime Unit and had served as a Field
Training Officer testified that he could not specifically recall telling
subordinates how to report their start time. (Finding of Fact #26). This
evidence leads us to conclude that the manner of reporting the start time for
hours worked as that time when personnel received their initial telephone call
was, within the Major Crimes Unit if not the entire Division, pervasive and
frequent, and well known by troopers and officers over a long period of time
preceding January 19, 2002. Of the nine individuals that received calls on
that day to assist in the investigation, seven were in similar duty status as
was Sgt. White. All seven reported the initial call as their start time.
That the personnel within the Major Crimes Unit would report
their start time on January 19, 2002 as that time when they received the
initial telephone call is understandable given the testimony. They had done so
previously and in some other units and Troops within the Division without
incident and had done so over a long period of time. The supervisory personnel
that made the telephone calls to them were being paid for their time in making
the calls. (Finding of Fact #22). Also, the discussion between the caller and
the individual called involved work related information including status
report, personnel requirements and strategy related to the investigation.
(Finding of Fact #10).
In January 2002, the Division installed a reporting
technology that generated a radio log Unit Report (Association Exhibit #2).
Using this technology, Major Hunter reviewed the amount of overtime expended
by members of the Division on the investigation of the particular
"suspicious death" case occurring on January 19, 2002, including
members of the Major Crime Unit who had responded to call backs to work.
(Finding of Fact #9). It does not appear to us that a comparative review of
Weekly Duty Reports (Association Exhibit #1) submitted by individual members
with the radio log Unit Reports (Association Exhibit #2) compiled from
electronic reports that indicated when a member activated, i.e. "signed
on", using their vehicle's radio had ever previously been undertaken.
Major Hunter's review revealed a difference in the start times on the two
documents recording Sgt. White's start time on January 19, 2002. The Weekly
Duty Report completed by Sgt. White indicated a start time of 0600 hrs. and
the computerized radio log Unit Report indicated a start time of 0632 hrs. ).
(Finding of Fact #7 and #9). In response to a request from Lt. Russell Conte
for an explanation of the difference in these two start times, Sgt. White
wrote that he had been instructed by field training officers and supervisors
throughout his varied service since 1989 that his start time when responding
to call backs was to be listed as the time he received the initial telephone
call. (Association Exhibit #3 and Finding of Fact #10). Sgt. White indicated
that he had received an estimated 20-30 "call backs" since joining
the Major Crimes Unit in 1998 and his manner of reporting the initial
telephone call as the start time had never been questioned.
The Association claims that the evidence demonstrates the
existence of a past practice entitling its members to continue to establish
the beginning of their work hours as that time at which they receive the
initial call. For a "practice" to be binding on both parties it
"must be (1) unequivocal; (2) clearly enunciated and acted upon; (3)
readily ascertainable over a reasonable period of time as fixed, and
established practice accepted by both parties." Elkouri and Elkouri, How
Arbitration Works p.632 (5th ed. 1997). We believe that to have a practice
"accepted" by both parties both must know of the existence of the
practice and accept it. (See PELRB Decision No.1998-084). While there was
sufficient evidence that members of the bargaining unit and even past members
of the bargaining unit were aware of its existence we find that there is
insufficient evidence that the other party, i.e. those managers representing
the State's interest at the negotiations table, knew of the practice and
accepted the manner by which members were reporting their start time until the
newly installed computer program made such comparative analysis easy.
However, we also believe that the evidence presented
(Finding of Fact #10 and #22) establishes that members are performing work
during the time that they are receiving the initial call back and during the
time they are making any necessary subsequent calls to other personnel
involved in the investigation or undertaking other activities directly related
to their recently assigned responsibilities. For this time they must be
compensated notwithstanding the testimony of Capt. Wiggin. (Finding of Fact
#28). The Division has the obligation to implement management controls to
ascertain when its employees are at work so that, inter alia they may
be "efficiently paid." (Finding of Fact #23).
We find that the Division failed to perform its obligation
to properly administer its payroll service or to have adequate control devices
in place. This failure contributed to its inability to identify what practices
exist or do not exist in its command structure. While this does not reflect
favorably on management practices, it cannot be said to indicate that the
Division had "accepted" a practice. In this regard, we find that
over time the Division waived its right to calculate members' hours of work
from a point in time at which that member has passed through the
"portal" from individual to employee by entering his or her vehicle
for purposes of such "call backs" as occurred on January 19, 2002.
On that date, the Division had not undertaken the comparative analysis that
eventually revealed the manner of reporting start time by members. Sgt. White
and others who reported their start time as that when they received the
initial call reported as they had in the past and therefore should receive
payment for time commencing with the time of the initial call.
We believe that on January 19, 2002, the Division was still
in a period of "waiver" as negotiated and expressed in the parties'
CBA in ARTICLE 18.1. That section provides that if a party has waived
performance of a condition or term of the CBA by the other party, such a
waiver does not constitute a waiver of the same non-performance in the future.
As a result of its comparative examination of the hours worked on January 19,
2002, its refusal to accept the start time reported by Sgt. White and others
and culminating with its participation in these proceedings, the Division has
terminated its "waiver" and provided adequate notice to members that
it would no longer pay for time that precedes the member's entry into service
by using his or her vehicle's communication unit. Therefore members will no
longer be paid for time worked calculated from the time of receipt of the
initial telephone call in the call back situation now before us, but from when
they sign into service through use of their vehicle communication unit.
We realize, as we hope the parties do, that our decision
presents the Division with the situation that members can put the initial
caller on hold while they don appropriate apparel to rush to their unit to
sign on and then return to the telephone to obtain the necessary work related
information required by the call back. We also realize that the parties have
the ability to negotiate additional language into their CBA that can establish
a mutually agreeable point in time at which a member's start time for such
call backs begins.
It is uncontroverted that the term "portal to
portal" has remained in the CBA since as far back as anyone involved with
negotiations could remember.(Finding of Fact #17). It was also uncontroverted
that this term has not been the subject of specific negotiations in the
context of such call backs as are at issue in these proceedings. (Finding of
Fact #16). The term "portal to portal" is not separately defined
within the parties' collective bargaining agreement. The term
"portal-to-portal pay" is understood in the field of labor relations
as payments for time actually spent by an employee at work or in service. Roberts'
Dictionary of Industrial Relations, p.603 (4th ed. 1994). The term conveys
a concept of place, used by the parties in ARTICLE 7.6 of their CBA, as much
as a concept of time. So while the parties have had ample opportunity to
negotiate a start time free of attachment to an era when employees were not
tethered to their place of employment by a vehicle parked in their driveway,
they have not. Perhaps they will soon.
In summary, the majority finds that the Division's actions
in paying some, but not all, members of the Major Crimes Unit over the course
of the CBA at the earlier start time and others at the later start time
despite having negotiated to equally treat members who received "call
backs" pursuant to ARTICLE 7.4 of the CBA and failing to provide advance
notice to members that its prolonged "waiver" regarding start time
calculation constitutes a failure to bargain in good faith and violates RSA
273-A:5, I (e). The majority further finds that Sgt. White and other members
of the Major Crime Unit who responded to call backs on January 19, 2002 shall
have their work time calculated for that day from the start time reflected on
their Weekly Report and compensated accordingly. Members of the Major Crimes
Unit shall have their work time, when responding to call backs such as those
at issue in these proceedings, calculated from the time they "sign
on" using their vehicle communications unit until the parties complete
negotiations on new language for ARTICLE 7.4.
So Ordered.
Signed this 31st day of March, 2003
/s/ Jack Buckley
Jack Buckley
Chairman
By Majority vote, 2-1. Chairman Jack Buckley and Member Seymour Osman voting
in favor. Member E. Vincent Hall voting against.
Minority Statement by Mr. Hall:
I respectfully disagree with the findings of the majority
and vote against this order. I do so because of the obvious frequency with
which the time of the initial telephone call was used to calculate the start
time for the members responding to call backs, the many years over which this
manner of reporting was used and the admitted use of this manner of reporting
by individuals with long service in the Division, including a former commander
of the Major Crimes Unit. I find that a "past practice" existed and
was known by the Division to be in place on January 19, 2002. A past practice
is a benefit that has accrued to the members over time and, as such, must be
negotiated out of the parties' collective bargaining agreement. I would order
the Division to continue to calculate hours on these call backs from the
initial telephone call.
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