Council 65 - Minnesota, South Dakota and North Dakota

Arbitration Award, Local 2889, Mille Lacs DAC Holiday Pay


Grievance Arbitration - Re: Holiday Pay
Before: Jay C.Fogelberg
Neutral Arbitrator

For the Union :Teresa L. Joppa, Staff Attorney

For the Employer: Michael J. Moberg, Attorney



Statement of Ju.risdiction-
The Collective Bargaining Agreement duly executed by the parties, provides in Article 13 for an appeal to binding arbitration of those disputes that remain unresolved after being processed through the initial three steps of the grievance procedure. A formal complaint was submitted by the Local on behalf of the Grievants on or about September 13, 2010, and thereafter appealed to binding arbitration when the parties were unable to resolve this matter to their mutual satisfaction. The under signed was then mutually selected as the neutral arbitrator by the parties, and a hearing convened on November 22, 2011, in Milaca, Minnesota. Following receipt of position statements, testimony and supportive documentation, the parties agreed to submit written summary arguments. They were received on December 24, 2011, at which time the hearing was •deemed officially closed.
At the commencement of the proceedings, the parties stipulated that this matter was properly before the Arbitrator for resolution based upon its merits, and that the following represents a fair description of the issue.

The Issue -  Did the Employer comply with the requirements of Article 7, Section 1, when it paid holiday pay only when a holiday is a scheduled work day for bargaining unit employees? If not, what shall the appropriate remedy be?



Preliminary Statement of the Facts-
The record developed during the coursE? of the proceedings indicates that the American Federation of State, County, and Municipal Employees, Local 2889 (hereafter "Union," "AFSCME" or "Local") represents, all support staff personnel working at the Mille Lacs county Area Developmental Achievement Center ("DAC," "Employer," or "Center") located in Milica, Minnesota and at a second facility in Princeton, Minnesota as well.

Together, the parties have n gotiated a labor agreement . covering terms and conditions of employment for members of the bargaining unit (Union's Ex. 12; Employ r•s Ex. 1 ) .
At a regular meeting of the Local in early September of 2010, a concern was raised by one of its members• regqrding the question of payment by the Employer for the ten designated annual holidays identified in their Master Agreement in Article 7, infra: Under the system employed by the Center, oil support staff work a forty hour week, Monday through Friday from 8:00 a.m. to 4:00 p.m. throughout the year. They receive their compensation on a bi-monthly basis, and because December contains an inordinate number of days off, they have had their annual salaries divided into twenty-four equal installments; Further, each member of the staff is required to complete and sign his/her time sheet to be submitted to their supervisor at the end of each pay period (Union's Ex. 2).
A designated forty hour work week computes to an annual amount of 2080 hours, or 260 days each year. When the Local took a closer look at the paychecks its members were receiving however, they discovered
that, according to their estimates, the Employer was only compensating  its members for 258 days each year spread out in equal payments over • twenty-four pay periods. Accordingly, they concluded that the Center was not paying for any of the designated "paid holidays" set out in the Master Agreement. Accordingly, they filed a formal class-action grievance on September 13, 2010, alleging a violation of Articles 2 ("Recognition") and 7 (Joint Ex. 2). Subsequently, the matter was processed through the contractual disputresolution mechanism and eventually, to binding arbitration when the parties were unable to resolve the dispute to their mutual satisfaction.


•Relevant Contract Provisions-

Article 2 Recognition Section 5. Definitions

e. Year of employmen•t: calculated as follows:
1. Full-time employees: 1,984 hours of paid employment.....

Article 7
Section 1. Holidays. The following shall be paid holidays if they are scheduled work days:
New Year's Day President's Day Good Friday Memorial Day Independence Day
Martin Luther King Day 12/1 of each year)  Labor Day . Thanksgiving Day Friday•After Thanksgiving Christmas Day
(or other day to be designated by  The Employer shall give no less than six (6) months' notice in scheduling unpaid holidays.



Positions of the Parties-
The UNION takes the position in this matter that the Employer violated Article 7, Section 1 of the parties' Master Contract when they failed to pay the Grievants holiday pay over the term of the 2007-1 0
Agreement and into 2011. In support of their claim, the Local contends that the time sheets an employee is expected to fill out for each pay period, requires accounting for a total of forty hours each week using work hours, sick, vacation, personal days and holidays. Nevertheless memoranda from the Center state that a Grievant's annual salary, paid in twenty-four equal installments, is accounted for by 242 "client days"  and 6 "staff training days." This totals 248 days which. fails to take into consideration the ten paid holidays as designated in Article 7. The Union asserts that the language contained in 7.1 is clear when it identifies specific holidays that are to be observed each calendar year. More particularly, the opening sentence states .that those ten identified, "...shall be •paid holidays," yet that is not what the administration has done. While the Grievants get the time off on the days specified,• they are not• compensated for them which, in the view.of the Local, results in a clear violation of the contract. Conversely they maintain that if the ten days were paid to the Grievants annually, the total number of paid  days would equal 258 which nearly equals th260 days in a 2080 . hour work year. If the employees are to account for five eight hour days each week on their time sheets, or forty hours each week, and that number is
multiplied by the fifty-two weeks in a year, the total hours would amount to 2080. This, they argue, would be most consistent with the policies of the DAC as contained on each two-week time sheet. Accordingly, they ask that the grievance be sustained and that the Employer be instructed to compensate all bargaining unit members with eighty hours of holiday back pay for each year covered by the contract.

The EMPLOYER, on the other hand, claims that there has been no violation of the parties• Labor Agreement when. it has paid designated holidays t9 bargaining unit members only for the holidays they actually were scheduled to work. In support, the DAC contends that when the first contract was negotiated in 1992, the Union sought to obtain eleven "paid .holidays.. for its members. That proposal however, was rejected by the administration. Eventually, the parties agreed upon language that • plainly states that the ten holidays identified shall be paid holidays if, and only if, "....they are scheduled work days... The Center asserts that since
1992, and in every succeeding contract, the lan uage in Section 7.1 has remained the same. Moreover, during the past nearly twenty years, only one or two employees have received compensation for a holiday and, consistent with the clear language in the Agreement, that is when they actually worked that day. Otherwise, none of the Grievants can claim that they have ever been paid for a holiday that they had off. This long- standing practice supports their position, they assert, that Article 7 does  not guarantee paid holidays to the staff. Further, the DAC • argues that any adjustment in a staff-member's pay is communicated via a memo from the Administrative Manager, Linda Lang and specifies that he/she is  scheduled for 248 days each year or 1984 hours of work. This calculation of salary• does not include any credit for paid holidays and never has. Moreover, the published calendars for the past four or five years designating when the holidays• are to be honored, specifically notes that
the  staff's work year consists of 248 days actually worked. For all these reasons_ then, they ask that the grievance be denied in its entirety.


Analysis of the Evidence-
As the statement of the issue indicates, this is a contract interpretation dispute involving particularly, the language in Article. 7, Section 1 of the pdrt.ies' agreement.2 Accordingly, the analysis of the evidence proffered necessarily will begin with an examination of that provision.
There is no dispute but that the first section of Article 7 is of paramount importance to the resolution of this matter. It enumerates the ten holidays selected by the parties which are to be observed each year. The evidence establishes as uncontested fact, that on the holidays identified, bargaining unit members (with rare exceptions) are not expected to work. Nor have they since the language was first introduced into their labor agreement in 1992 (testimony of Local President Melissa Kampa)

1 The .Employer has raised a procedural issue as well. In the event the Union's grievance would be sustained, they argue the Local is barred from claiming holiday pay back to 2007 as requested, since the grievance was not filed until September of 2010. The parties' contract, they assert, requires that a complaint be submitted within ten days of any alleged violation of the Agreement under the express terms of Article 13, Section 3. However, the remedy sought by the Grievants, as reflected in the Local's •post-hearing brief. no longer seeks relief prior to early September of 2010, therefore the procedural issue is now considered moot.
The ten holidays listed are preceded by a -single sentence that is lear on its face. In definitive ters it states that these holidays "....shall be paid if they are scheduled work days." I find the qualifying clause at the conclusion of the sentence to be dispositive of the grievance. When read in conjunction with the initial passage in the same sentence, the reader understands that the ten listed holidays are paid only if the bargaining unit member is "scheduledi' to work on one or more of those days. Webster's dictionary definition of -this _verb is representative. It identifies it as meaning: "to appoint, assign or designate for a fixed period of -time" (Merrim-Webster's On Line Dictionary, _ @ Similarly, Roberts' Dictionary of Industrial Relations, 'BNA 4th Ed., explains the t.erm 3 Under cross examination, Ms Kampa offered the following testimony: Employer: "Are y.ou scheduled to work on holidays?
Witness: Generally, no.
Q: Have you ever work on a holiday?
• A: No.

as: "the number of hours planned for the day ...the hours actually worked ..." (at p. 695; emphasis added).
A common axiom of contract interpretation, holds that if the can determine the meaning of the words un. der consideration without any other guide than a knowledge of .the simple facts on which, from the nature of the language in general its meaning depends, then it is not ambiguous. See: 13 Corpus Juris, Sec., 481, p. 520. The adage is most applicable here. A plain reading of the straight-forward language at the beginning of Article 7 identifies first the ten holidays thparties have agreed to be "paid holidays," but also adds the all-important qualifier that the employee must be "scheduled" to work one or more of those days in order to receive compensation. When applied to the uncontested facts that rione of the Grievants were scheduled to work Labor Day in 2010, their complaint must be rejected.
The foregoing analysis is believed to fairly dispose of this matter. However evn assuming, arguendo, that the controlling language is less than clear, there is ample other evidence in the record that further supports the conclusion reached here.

first, a review of the parties'. negotiation history is illuminating. Employer's Exhibit 3 reveals that the Union's initial proposal in 1992 sought the inclusion of ten paid holidays in t e new agreement without qualification. The DAC rejected the idea, while the Local continued jo insist on appending such language to the 1992-93 contract {id.}. In the fall of that year the Local modified its position, seeking four paid holidays rather than ten. However this too was rejected by the Administration. In October of 1992, the f;:mployer finally countered indicating that certain
holidays would be identified in the new agreement as paid holidays, but that they had to be ..scheduled work days" in order forthemployee(s} to be compensated (id. at Tab 9}. Eventually, the Union agreed to the Center's proposed language and it was inserted into the 1992-93 contract where it has remained unaltered ever since.
This bargaining history is consistent with the recollections of the Center's Director, Fred Hoffman who represented the Employer at the table in 1992. He emembered making the counter proposal to the Union at that time qnd indicating that its incorporation into the first labor agreement between the parties would continue the traditional practice that had. been followed prior to the support staff gaining recognition as  an organized bargaining unit, i.e. that the DAC had only paid members • of its work force for a designated holiday if they actually were scheduled to work on a holiday.4 While Ms. Kiel testified that she served on the Union's negotiating team in 1992, she indicated that she could not remember the specifics surrounding. the bargaining process that year. In the absence of any countervailing evidence, Mr. Hoffman's recollections have been credited.
Similarly, the established past practice of the parties lends further support to the Employer's position in this matter. The Center's Director offered uncontested testimony that in his thirty-seven years of experience • at the enter, no employee has ever. been paid for a holiday unless he/she actually workd on one of the designated days. This practice, he noted, transcends the execution of the first collective bargaining agreemenr between the parties. It was shown that the language ultimately inserted into the 1992-93 agreement was a reflection of the •
prior practice. Moreover,• the evidence demonstrates that when, on a  rare occasion, an employee has worked on a designated holiday, they have been compensated in accordance with Article 6, Section 2    (Center's Ex. 3). Additionally, Union witnesses Jo Muse! Parr and Jennifer Mitchell both testified that they . were unaware of any bargaining unit employee eyer receiving compensation for a designated holiday if they did not actually work on that day. Employer's witness, Administrative Manager Lind_a Lang, testified that whenever she has advertised for job vacancies in the bargaining unit, she never states that one of the benefits was paid holidays. Rather, th•e announcement only indicates that employees would not have to work on holidays or weekends (Employer's Ex. 6). Lang further explained thqt she presents every new-hire with •a memo detailing how they are goin•g to be compensated at DAC, and subsequently when they receive an increase in pay • as well: The document provided to Ms. Kiel,• for example, detailing her compensation following o 2% pay increase• in 2006, specifically sets forth the- number of hours she will be scheduled to work in a year based upon 242 "service days, plu_s 6 staff training days" (Union's Ex. 5).5 - When the total nu.mber of annual days yvorked tallied (248) and then multiplied by the standard eight hour work day, the result is 1,984 hours. This evidence is contrary to s The record demonstrates that the Local has been notified regarding the methodology for paying its members at the DAC which did not include holiday compensation. In October of 2006, Ms Lang sent a letter to the Local's Business Agent at the time, Kathy Kapla, which included a copy of the sample memo which was identical to the one given to all employees and to Ms. Kiel that same year (Union's Ex. 5) which sets forth 1. 984 hours of compensation in a work year (Employer's Ex. 4).

" Hoffman stated that if the employee actually had to work on a designated holiday the employee was then paid double time pursuant to Section 6.2 of the agreement.

the Union's assertion that there is no evidence of any new hire receiving notice that the holidays in • question were not compensated without actually working on one or more of them.
In addition, the annual warcalendars published each year by the Administration alsb reflect a total of 248 scheduled work days for each year (Union Exs. 6, 7, • & 8). Significantly these calendars indicate that holidays are not port of the regularly scheduled work days enumerated.
In no small measure the Union has relied upon the information provided to the_ bargaining unit members on the time sheets each is requird to fill out each pay period (Local_ Exs. 2 & 9). Employees are expected to nter the hours worked, or hours away from work on paid  time off in the appropriate columns provided. However, there in nothing on these documents, according to the Local, explaining that holiday hours are unpaid. Thus, they reason, the requirement that the Grievants' time sheets show a total of forty hours each week (which might include
- paid time off on sick leave or personnel leave) logically leads employees to believe the designated holidays in Article 7 are compensated as well. Moreover, they charge that management has done nothing to dispel the
Grievants' notion that all such holidays are paid days . off from work whenever they fall on a Monday through Friday.
The latter assertion however, cannot withstand the clear evidence regarding the consistent past practice of the parties along with the clear language found in the same article. dditionally, Ms. Lang testified that the holiday ("hoi") column on the time sheets is there simply to make note of wh_en such a day occurs during the work week, and that the Administration has never considered this to mean that an  employee is entitled to a paid (holiday) off of work. While it is understandable that these documents might be confusing to some, in light of the preponderant evidence, and particularly the information consistently provided to new . hires and employees by the Administration which reference the number: of scheduled hours worked each year, these forr:ns are not enough to satisfy the Grievants' burden of proof in this matter. As explained by the Center's Administrative Manager, • they are rather, merely a means of by which employees record the days they actually workand the 9ays which are unpaid holidays during the week, that are not worked.

Based upon the foregoing, I find that the clear language in the  labor agreement, the negotiations history of the parties surrounding that language, and consistent past practice • in connection with its administration, • all favor the Employer's position in this matter. Accordingly, the grievance idenied.






Respectfully submitted this 12th day of January, 2012.



Jay C Fogelberg,
Neutral Arbitrator


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