Holding: Management violated a
past practice when it denied overtime pay to three officers who were injured on
duty and were not released from the hospital until after their shift had ended.
|
and
Metropolitan
121 LA (BNA) 1797
FMCS Case No. 05/00563
Aaron
S. Wolff, Arbitrator, selected by parties through procedures of the Federal
Mediation and Conciliation Service
Background Facts
The Village of Romeoville [the “Village”
or “Employer”] and the Metropolitan Alliance of Police, Chapter #6 [the “Union”
or “MAP”] submitted to arbitration a grievance, dated November 11, 2003, filed
on behalf of Patrol Officers Fred Linklater, Sandra Dreher and Alex Escobedo.
The grievance asserts that they were improperly denied overtime pay when they
were injured on duty, went to a hospital emergency room for treatment and
remained there until after their shift was over.
The
material facts are not in dispute. The agreed issue is:
Did the
employer violate Section 11.3 of the collective bargaining agreement when it
refused to compensate the employees for their medical treatment which occurred
after the conclusion of their shift; and if so, what's the appropriate remedy?
Section
11.3 provides as follows:
Section 11.3 Overtime Pay
Officers covered by this agreement shall be paid
one and one-half (11/2) times their normal straight-time hourly rate of pay for
all authorized, scheduled and required time of work in excess of forty (40)
hours in a workweek.
Patrol
Officer Linklater, who was hired in August 1985, testified as follows: On
After
his release, Officer Linklater, who had a squad car that he drove home at
night, returned to the police station to fill out his “Daily Activity Report”
[the “DAR”]. Among other things, the DAR describes the officer's activities
during the day and the time spent on them. On his DAR, grievant noted he worked
11.0 hours, including five at the hospital. He claimed 3 hours of overtime,
including the 15 minutes he spent in going to the station instead of directly
home. Theoretically, he could have signed off by radio and filled out his DAR
on the next day, but “they want you to do it daily.” The Xerox copy of the DAR
has a “post-it note” on it that says: “Fred—You do not
get paid O.T. for hospital time. You only 1500-2300 8 hrs.”
[sic] Grievant did not receive the claimed three hours
of overtime.
On
November 7, grievant further stated, the hospital asked him to come back for a
“follow-up.” He went there at about
Officer
Linklater also testified that in 1998 or 1999 he was bitten by a dog while on
the job and went to a hospital where he remained for about four hours and until
after his shift ended. He requested and was paid overtime for his time in the hospital
after his shift ended.
Officer
John Ferdinardo, who was hired as a Patrol Officer in July 1990 and became a
Patrol Sergeant in June 2005 [sergeants are also in the bargaining unit], is a
former president and current secretary of the
Patrol
Officer Michael Ramaglia was hired in April 1987 and served as Union president
for six years until the current May 1, 2002—April 30 2006 Contract was
negotiated.3 He testified that approximately 10 years ago he and Police Chief
Andrew Barto had a conversation in the latter's office about an officer who had
been denied overtime for being at the hospital on a Workman's Comp injury.
Asked what was said, he replied:
A
Without quoting it verbatim, it was at what point do we
stop paying the officers for being at the hospital. And my response was when
they are admitted to the hospital.
If
they stay there after their shift eight hours, you pay eight hours overtime. If
they are admitted, then they are in the Workman's Comp category so they are
getting their eight hours a day for being in the hospital.
Q
Why did you respond that way?
A
Because the chief was saying that we
weren't paying.
Q
I understand. Had that been the practice in the past or had that been
procedure?
A
Yes, up until that point everyone when they went to the hospital, they were
paid their overtime for seeking treatment. 4
Q
Now, did this officer ultimately get paid time and a half?
A I want to say, yes, but like I said, I can't
remember who it was.
As
for himself, Officer Ramaglia testified that in 2001 he, Officer Hess and Sgt. Byrne, went to a house fire where they suffered smoke
inhalation and went by car and ambulance to a hospital for treatment. When he
was treated and released, but not admitted to the hospital, after his shift
ended, he returned to the station to turn in his squad car keys. The next day
he filled out his DAR and requested overtime for the period he was at the
hospital after his shift ended; and he was paid for it.
Another
grievant, Police Officer Sandra Dreher who was hired in January 1987, testified
that on November 6, after getting permission, she also went with Officer
Linklater to Edwards' hospital ER for medical treatment due to the potential
contact with strychnine and was not released until after her shift ended.
[While Office Linklater said it was cyanide, both are highly poisonous]. She
returned to the station to drop off her squad car and radio.5 At the same time she filled out a DAR and put in a claim for
2.8 hours of overtime which was denied.6
Officer
Dreher also testified that in about 1997 she and Officer Marty Hess were first
responders at a house fire. After they went in to look for persons in the
house, they suffered smoke inhalation. After getting permission from the police
sergeant on duty, they were taken by fire department paramedics in an ambulance
to a hospital in
The Villages' sole witness was its
Chief of Police, Andrew Barto, who was hired in 1972 and has held every rank:
patrolman, sergeant, lieutenant, deputy chief and chief in 1991. He testified
that the Village has “previously paid employees for hospital stays [emergency
treatment] after their shift when they were hurt on their shift.” He heard the
testimony of the officers concerning such payments and said their testimony in
this respect was “correct.” He said that the payments were made on the basis of
the HR [Human Resource] department's advice that the “Workman's Comp law” required
the Village to make such “payment after their tour of duty ended when they were
injured.” 7 But the Chief did not agree with that opinion and questioned it
“several times.” He remembered having a conversation about “this issue” with
Union president Ramaglia as well as two of his predecessors. Continuing, he
said:
Q
Now, you heard Officer Ramaglia testify that in that conversation there was
some discussion about paying the officer up until the time he was admitted to
the hospital. Do you recall any conversation like that?
A
Yeah, I think in the gist of the total conversation, my belief that at some
point Mike mentioned we are paying them till they are admitted, and my response
is when do we stop payment. I think that probably was his response. That's what
I believe was the conversation.
Q
Did you ever come to any agreement with the
A
There was never an agreement. My position has always remained the same.
The
Arbitrator: What was that?
By Mr. Sakellariou:
Q And that position is what?
A That at the end of the tour of duty, stop, because
Workman's Comp now kicked in and this was now a Workmen's Comp issue.
And
that Workman's Comp did not require us to pay overtime for the period of time
that they were in the hospital. That was my position with the Union
presidents.
Q All right. And it was—again, it
was human resources that was requiring the payment in
their opinion based on the Worker's Comp law?
A
Payroll and HR was doing the same job over across the street, and they were
dictating the policy in saying that they believed that Workman's Comp was
required by the Workman's Comp Act, they were required that we had to pay our
officers. And my position was, again, no, we don't have to.
Q
Now, prior to the incident that gave rise to this grievance, was that issue
ever revisited with human resources?
A
Yeah, it had gotten to the point where I finally had made the decision, and I
talked to other chiefs in saying I have got a real issue.
The
Arbitrator: Other chiefs of other communities?
The
Witness: Yes, other chiefs in the
Mr. Sakellariou responded after he did
the research, he said, no, we are not entitled, they
are not entitled to that payment of overtime.
Continuing, the Chief said that after
getting this opinion he made “a phone call to the Workman's Comp lawyers and
received a similar opinion.” 8
However,
since 1991, when he became Chief, and up until this grievance, he agreed that
it was “fair to say” that “the police department paid officers that were
required to work over by staying in the hospital other than being admitted [to
the hospital].” He did not know of any officer being paid by the department for
time after the officer was admitted to a hospital.
The
Chief further testified:
Q
And so is it fair or not fair to say that at least when you had the
conversation with Officer Ramaglia that the understanding was that officers
would be paid until they were admitted to the hospital, at which time they go
to Worker's Comp?
A That was Mike's position, it wasn't my position.
The
Arbitrator: What did you say when he said his understanding was that they were
getting paid overtime up until they were admitted to the hospital? What
response, if any, did you make?
The
Witness: My question was when does it stop. And I think
that's his response, when they got admitted.
The
Arbitrator: What did you say after that, if anything?
The
Witness: My position was once again—
The
Arbitrator: Not your position but what you told him?
The
Witness: I told him my position was and is that it's a Workman's Comp
issue.
The
Arbitrator: This goes back ten years?
The
Witness: Oh, my gosh, it goes back further than
that.
The
Arbitrator: But notwithstanding that conversation, you have paid employees overtime
when they went to the hospitals and were there after their shift ended?
The
Witness: That's correct.
The Chief added that the basis for
these overtime payments “was the misinterpretation by human resources of the
Worker's Comp requirements.”
Discussion
In
its post-hearing brief, the
“In the
absence of a written agreement, past practice, to be binding on both parties,
must be (1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily
ascertainable over a reasonable period of time as a fixed, and established
practice accepted by both parties.”
This
requires, the Village says, a “mutuality of agreement.” Continuing, it
says:
Chief Barto testified that he never mutually
agreed that the Village had an obligation to pay employees overtime under any
agreement with the union, via the written contract or practice, for time spent
receiving treatment after the end of a regularly scheduled work shift. His
statement during the course of the hearing was that he had always taken the
position that the Employer, the Village of Romeoville, was under no obligation
to compensate employees for time spent for treatment subsequent to end of a
shift.
The
Village further holds that there is nothing in the Contract that requires
payment of overtime under the circumstances revealed here. Rather, it says:
"[the] sole reason that overtime may have been paid in the past is due to
a unilateral mistake made on behalf of the Human Resources Department of the
Village in believing that it was obligated to pay overtime under the Illinois
Workers Compensation Act."
Concluding
on this point, the Village argues: 9
This
unilateral mistake, the absence of any argument that the contract speaks to
this issue or is ambiguous, and the Chief's consistent denial of the need to
pay overtime all evidence a clear lack of mutuality or meeting of the minds
between the Employer and the Union, and without mutuality a past practice
cannot be established.
Other
arguments advanced by the Village are these:
[1] “the officers were
not required to return to the station after medical treatment to perform any
work for the Employer.”
[2] “To Permit the Payment of Compensation for Time Spent Seeking Medical Treatment
Would Usurp the Authority of the Employer to Determine the Compensable Time to
be Worked by its Employees.”
In
this respect the Village relies on its management rights clause to control the
work time for which it compensates its employees and on the Chief's 1996
General Order 3-103 which does not require officers to seek treatment for an
illness or injury which occurs during their shift.
In
its post-hearing brief, the
After
careful review of the record and the contentions of the parties, I find that
this grievance has merit and must be sustained.
The burden of establishing a binding past practice
rests on the party asserting it. The
Acceptability
does not require verbal or written agreement. Mutuality of agreement is demonstrated
by implication: repeated acceptance of the practice over a reasonable period of
time.13 Here, the Chief said, he was aware
of the practice for more than a decade and that during that time period he told
Union presidents that he did not agree with it. While he may not have verbally
agreed with it, the admitted fact is that for a long period of time he
permitted it over his claimed stated objection. In short, he and the Village
acquiesced in, and thereby accepted the practice repeatedly for over a decade.
It then became an implied term or condition of the Contract and could not be
altered unilaterally. If it is to be changed, it must be done at the bargaining
table.14
Other
arguments of the Village are unavailing. The Village's reliance on U.S. Industrial
Chemical, supra, is misplaced and actually supports the
Nor
does the Village's reliance on General Order 3-103 give it support. This
February 1996 Order says nothing about pay for employees who sustain on-duty
injuries. On the other hand, it “encourages all personnel to seek medical
attention for all injuries sustained * * *”including emergency room services at
any of four approved medical facilities.
The Village also contends that the
practice would allow an emergency room doctor to determine how long an employee
should remain in the ER and thereby deprive management of its right to control the compensation of its employees beyond
their regular shift. The Village suggests that this is a “usurpation,
by a third party, of the Employer's fundamental right to control the work time
for which it compensates its employees.” This might be a good argument to limit
the practice at the bargaining table, but it cannot defeat in arbitration the
established existence of the practice. Moreover, the four medical facilities to
which employees are authorized to go for emergency treatment are those
determined by the Village. If there were any evidence that doctors or
police officers were delaying their treatment in these ERs [and here there is
absolutely no such evidence], the Village has it in its power to correct
it.
Award
For the reasons set forth in the
Opinion, which Opinion is incorporated by reference in this Award, the
grievance is sustained and the overtime claims shall be paid.
The
Arbitrator will retain jurisdiction for sixty (60) days to resolve any dispute,
now unforeseen, as to the remedy.
Notes
1
Hereafter, all dates are in 2003 unless otherwise stated.
2
No ER is available in
3
He is a signatory of the Contract which was not finally executed until about
4
Although this conversation was long ago, he said he remembered it
“clearly.”
5
The radios are left at the station so they can be re-charged. Officers who
don't have “take-home” squad cars return to the station to pick up their own
cars to get home. Those officers who are assigned take-home cars have
rechargers at home and recharge their radios themselves.
6
Her DAR, as well as grievant Escobedo's DAR have
affixed to them the same kind and wording of the post-it note placed on
Linklater's DAR.
7
He said that the Payroll and HR departments were “dictating the policy” under
their belief that the Workman's Comp Act “required that we had to pay our
officers.”
8
The Chief later indicated that this opinion was obtained, at his request, by
the HR department. The opinion was in writing, but not offered into evidence.
The several opinions the Chief testified about were received “very close to the
time of this [November 6] incident” or to the time of the grievance, but one
may have been obtained before and one after the grievance was filed. The Chief
did not discuss the opinions with the
9
It cites U.S. Industrial Chemicals Company, 47 LA (BNA) 651, 654 (1966) for the
proposition that: “an erroneous administrative procedure by one department,
though carried on for ten years, did not bind the company as a practice where
no rational basis for the procedure was shown.”
10
Citing:
11
The
12 It is undisputed that after formal
admission to a hospital for an on-duty injury, the employee is covered and paid
by Worker's Compensation.
13
See F.& E. Elkouri, How Arbitration Works, (6th
Ed. 2003: A. Ruben; Editor-in-Chief), pp. 608-09.
14
Such opportunity will arise soon since the present Contract expires on