HomeMy WebLinkAbout04.b. Review draft Position Paper to consider adoption, rejection, or modification to the recommendation of the arbitrator in response to the grievance filed by Public Employees’ Union, Local #1 related to the application of administrative leave payItem 4.b.
BOARD OF DI RECTORS
POSIT ION PA PER
DRAFT
M E E T ING D AT E:MAY 4, 2021
S UB J E C T: R E V I E W D R A F T P O S I T I O N PA P E R TO C O NS I D E R A D O P T I O N,
R E J E C T I O N, O R MO D I F I C AT I O N TO T HE R E C O MME ND AT I O N O F T HE
A R B I T R ATO R I N R E S P O NS E TO T HE G R I E VA NC E F I L E D B Y P UB L I C
E MP L O YE E S’ UNI O N, L O C A L #1 R E L AT E D TO T HE A P P L I C AT I O N O F
A D MI NI S T R AT I V E L E AV E PAY
S UB M I T T E D B Y:
T E J I O'MA L L E Y, HUMA N R E S O UR C E S A ND
O R G A NI Z AT I O NA L D E V E L O P ME NT
MA NA G E R
I NI T I AT I NG D E PART M E NT:
O F F I C E O F T HE G E NE R A L MA NA G E R -
HUMA N R E S O UR C E S
RE V IE WE D B Y:R O G E R S. B A I L E Y, G E NE R A L MA NA G E R
IS S UE
Pursuant to Article I I I , Section 2.5 of the Memorandum of Understanding (MO U) between the D istrict and
Public Employees’ Union, L ocal #1, when a grievance has been appealed to the Board of Directors, the
Board must employ an arbitrator to hear the matter and recommend action to the Board. T he B oard may
adopt, reject, or modif y the recommendation of the arbitrator, and the decision of the B oard is the final
action in the grievance process.
B AC K G RO UND
D ue to the C O V I D-19 pandemic, in March of 2020, employees were assigned modif ied schedules
to minimize their time on site and to also be available on “reserve” to report to work, if they were
needed. E mployees received administrative leave pay while on reserve status even though they were not
performing District work. T he District granted the administrative leave to ensure no employee would be
subjected to unpaid leave or be required to utilize their personal accruals due to the implementation of
these new schedules.
A grievance was f iled by L ocal #1, on behalf of employees who were assigned to be on stand-by and were
called-out during the time that they were in reserve status (non-worked time). L ocal #1 contended that the
affected employees should be paid administrative leave pay for their f ull work schedule even though they
did not work and, in addition, be paid at the premium rate f or the time worked when they were called out.
General Manager R oger S . B ailey was the Hearing Officer at Step 3 of the grievance process. T he
hearing was held on A ugust 19, 2020, and Mr. B ailey allowed f or both parties, staf f and the union, to
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present their positions on this matter. After careful consideration, Mr. B ailey denied the grievance. I n
response to the denial, L ocal #1 progressed the grievance to Step 4, which was heard by an arbitrator.
Arbitrator Christopher Cameron heard the grievance on March 1, 2021, and the decision was issued on
April 13, 2021. I n summary, Mr. Cameron af f irmed that there was no violation of the MO U as the stand-by
pay was paid in accordance with A rticle I I , Section 5.4 - Call-Out Pay. He opined that 1) call-out pay is to
provide premium pay for working extra hours in addition to the employees’ normal schedules and in this
case, the employees were not working when on reserve status, and 2) paying the administrative leave and
the call-out pay would create a windfall f or af f ected employees rather than make them whole, and 3) the
D istrict was under no contractual obligation to provide administrative leave pay during this time. T he entire
decision is attached.
ALT E RNAT I V E S /C O NS I D E RAT IO NS
None.
F I NANC IAL I M PAC T S
T he District and the Union equally share the cost of the arbitration hearing. T he District’s share is $3,600.
C O M M I T T E E RE C O M M E ND AT IO N
T his matter was reviewed by the Administration Committee at its May 4, 2021 meeting. T he Committee
recommended the Board adopt / reject / modify the recommendation of the arbitrator in response to the
grievance f iled by P ublic E mployees’ Union, L ocal #1.
RE C O M M E ND E D B O ARD AC T I O N
Adopt, reject, or modif y the recommendation of the arbitrator in response to the grievance filed by Public
Employees’ Union, L ocal #1 related to the application of administrative leave pay.
Strategic Plan Tie-I n
G O A L FO U R : Workforce Development
Strategy 2 – Foster relationships across all levels of Central San
AT TAC HM E NT S :
D escription
1. Arbitrator Decision
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BEFORE CHRISTOPHER DAVID RUIZ CAMERON
NEUTRAL ARBITRATOR
_______________________________________
)
In the Matter of Arbitration Between )
)
CENTRAL CONTRA COSTA COUNTY )
SANITARY DISTRICT, )
)
Employer, )
)
- and - ) ARBITRATOR’S
) OPINION AND AWARD
PUBLIC EMPLOYEES UNION LOCAL ONE, )
AMERICAN FEDERATION OF STATE, )
COUNTY, AND MUNICIPAL EMPLOYEES, )
)
Union. )
)
Regarding Call Out Pay. )
_______________________________________)
Neutral Arbitrator
Christopher David Ruiz Cameron
Southwestern Law School
Advocates
For the Union For the Employer
Andrew H. Baker, Esq. W. Daniel Clinton, Esq.
Beeson Tayer & Bodine Hanson Bridgett
Hearing Date
March 1, 2021
Via Zoom
Opinion and Award Issued
April 13, 2021
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O P I N I O N
INTRODUCTION
These grievances (“Grievances”) challenge the manner in which employees working in
the positions of collection system operator (“CSO”) and plant maintenance employee were
compensated with premium pay for call out duty (“Call Out” or “Call Out duty”) while on
standby duty during alternate work schedules adopted during the first two months of the COVID-
19 quarantine. The Grievances came before me pursuant to a mutual appointment by the Central
Costa County Sanitary District (“Employer” or “District”) and Public Employees Union Local
One, American Federation of State, County, and Municipal Employees” (“Union” or “PEU”)
(collectively “Parties”) under the relevant provisions of a memorandum of understanding
(“MOU”) in effect between the Parties during the period December 18, 2017, to April 17, 2021
(JX 1).
On March 1, 2021, a hearing was held by videoconference. The Parties appeared
remotely and offered witness testimony and documents that were marked and admitted into
evidence as discussed below. They were well-represented by experienced advocates: the Union,
by Andrew H. Baker, Esq., of Beeson Tayer & Bodine in Oakland, Calif.; and the Employer, by
W. Daniel Clinton, Esq., of Hanson Bridgett in San Francisco.
The Parties submitted closing arguments by filing written letter briefs on or about April
1, 2021. The Parties filed with the Arbitrator by email attachment and directly served each other.
No reply or rebuttal briefs were filed. These arrangements were made by stipulation. The
contents of the briefs, together with any and all exhibits already admitted, as well as other
documents referenced therein and submitted therewith, are hereby made part of the record. The
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record having been completed, I hereby declare it closed. The Grievances are now ripe for
resolution.
JURISDICTION
The Parties stipulated that all the steps of the grievance procedure were complied with,
the Grievances are properly before me, and I have jurisdiction to decide them.
ISSUES
The Parties stipulated to the following issues:
1. Did the Employer fail to compensate CSO and plant maintenance employees as
required by Article II, Section 5.4 of the MOU for callouts during the period approximately mid-
March to approximately mid-May 2020?
2. If so, what is the appropriate remedy?
STANDARD APPLIED
In accordance with general arbitral practice, I required the Union to prove the Grievances
and the material facts supporting them by a preponderance of the evidence.
EVIDENCE SUBMITTED
The Parties called a total of two (2) witnesses. The Union called Joshua Whitman, CSO
maintenance crew leader and Union shop steward. The Employer called Teji O’Malley, human
relations and organizational development manager (“HR Manager”). At all relevant times, each
witness was employed by the Employer in the indicated capacity. No rebuttal witnesses were
called.
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The Parties offered into evidence a total of twenty (20) exhibits: one (1) joint exhibit
offered together by the Parties; five (5) exhibits offered by the Union;1 and fourteen (14) exhibits
offered by the Employer.2 All offered exhibits were received into evidence.
//
//
1 Union Exhibit Nos. 3 through 7 were offered and admitted. Union Exhibits Nos. 1 through 2 and 8 through 9 were
marked but not offered or admitted.
2 Employer Exhibit Nos. 1 through 7, 10 through 14, and 16 through 17 were offered and admitted. Employer
Exhibit Nos. 8 through 9 and 15 were marked but neither offered nor admitted.
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POSITIONS OF PARTIES
Union’s Position
The Union takes the position that the Employer violated Article II, Section 5.4 of the
MOU by failing to pay affected employees in two classifications – collection system operator
(“CSO”) and plant maintenance employee – the full overtime rate for time worked on call out
duty (“Call Out” or “Call Out duty”) in addition to their regular straight time wages.
The Grievances arose out of a dispute over premium pay for Call Out Duty. Call Out
Duty refers to the practice of calling out a two-man crew that already is on standby to deal with
an after-hours emergency, such as a sewer blockage. Under Article II, Section 5.4 of the MOU,
employees who are called out “will be compensated with a minimum of three (3) hours at the
overtime rate” (JX 1, p. 7). During the Period, during weeks when employees were scheduled to
work onsite, the Employer paid full premium pay to workers on Call Out duty. But during
weeks when employees were assigned to stay at home, the Employer credited against Call Out
duty the straight time hours for which employees were compensated with Admin Pay.3 This had
the effect of improperly deducting premium pay from home-bound employees who went on Call
Out duty.
For at least two reasons, the Grievance should be sustained.
First, the Employer violated the plain meaning of Article II, Section 5.4 by deducting
Call Out hours from employees’ paychecks. Their Call Out hours should have been added to
3 It is undisputed that working three (3) hours of Call Out duty at the overtime rate of time and-a-half is the
equivalent of working four and-a-half (4.5) hours at the straight time rate. So the District adjusted weekly employee
compensation during the Period by deducting three (3) hours from the standard 40-hour work week covered by
Admin Pay, and then paying an additional one and-a-half (1.5) hours of straight time. The Grievances seek to
recover at least one and-a-half (1.5) more hours of pay per Call Out per employee.
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their Admin Pay so as to be compensated for the standard 40-hour work week, plus extra pay for
Call Out duty, as provided by the actual language of the MOU.
Second, CSO Manager Paul Seitz explained that nothing would change with respect to
Call Out hours paid during the Period. This was understood by the Union to mean that Admin
Pay would be used only to make up for reduced straight time work hours. By definition, Call
Out duty hours are non-straight time work hours, and therefore, needed to be paid at the overtime
rate, without regard for straight time already paid.
Accordingly, the Grievance should be sustained.
Employer’s Position
The Employer takes the position that it did not violate Article II, Section 5.4 of the MOU.
In fact, during the Period, it paid all affected employees who worked Call Out duty a minimum
of three (3) hours at the overtime rate, exactly as the MOU requires.
With respect to affected employees who were assigned to standby duty at home, all the
Employer did was to adjust their compensation to account for hours actually worked, including
Call Out duty hours. In this manner, the Employer managed to supplement employees’ income
for the reduced hours actually worked with Admin Pay for hours spent on “reserve status.”
Eventually, 14,000 hours of unworked standby time were paid to compensate employees for the
difference between the pay earned for hours actually worked and the straight time pay that they
would have earned for working a full 40-hour week (EX 7).
For at least three reasons, the Employer was entitled to adjust the compensation of
affected employees in order to account for hours actually worked, including Call Out duty hours.
First, the purpose of Call Out is to provide premium pay to employees who are put to the
time and trouble of working extra hours – that is, hours worked in addition to their normal
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daytime schedules. No such purpose would be served by providing premium pay to employees
who were stuck at home on Reserve Status.
Second, adopting the Union’s position would create a windfall for affected employees.
The Employer was under no contractual obligation to supplement employees’ income for the
reduced hours actually worked with Admin Pay for hours spent on Reserve Status. The MOU
contains no provision guaranteeing 40 hours per week or any other minimum number. To
compensate employees with premium pay when they were called out from home, where they
already were collecting straight time pay for doing little to nothing, would bestow upon them an
extra benefit, not make them whole.
Third, the Employer should not be penalized for trying to bring order to potential chaos.
The quarantine went into effect about a year ago. It was a time of uncertainty, especially for
employees who were facing the possibility of drastically reduced income during the early days
and weeks of the quarantine. The Employer stepped up by using Admin Pay to ensure that CSO
and plant maintenance employees were compensated for the standard 40-hour work week even
though they were not performing standard work, much less performing it for 40 hours per week.
This was a “pure” and “generous” benefit paid in order to avoid layoffs, unpaid furloughs,
reduced hours, and similar steps adopted by other Bay Area sanitation employers affected by the
pandemic (EX 4).
Accordingly, the Grievances should be denied.
//
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RELEVANT MOU PROVISIONS
ARTICLE I – INTRODUCTORY PROVISIONS
Section 2 – Management Rights
2.2 District Rights: The rights of the District include, but are not limited to, the
exclusive right to . . . direct, classify, and assign its employees; . . . relieve its
employees from duty because of lack of work or for other legitimate reasons; . . .
determine the methods, means, and personnel by which District operations are to
be conducted; . . . and take all necessary actions to carry out its mission in
emergencies; . . . provided, however, that the exercise of such District rights shall
not conflict with the express provisions of this Memorandum.
* * *
(JX 1, pp. 1-2.)
ARTICLE II – SALARY PROVISIONS
Section 5 – Stand-By and Call-Out Time
5.1 General: Employees are required to be on Stand-By in order to provide
customer service after normal working hours or to be able to respond quickly to
emergency situations. Employees will be assigned to Stand-By according to the
procedures established in their Division.
Stand-By assignments take effect from the end of an employee’s regular work
schedule until the beginning of the next regular work schedule. Employees in a
Stand-By status must be capable of being notified that the District has a need for
customer/emergency service and of responding immediately. The District will
make every effort to notify employees in advance of their Stand-By status;
however, circumstances may arise where advance notice is not possible.
5.2 Stand-By Pay: Employees . . . on Stand-By will be paid at the rate of one (1)
hour of overtime pay for each weekday and three (3) hours of overtime pay for
each weekend day or paid District holiday. . . . (Overtime pay is calculated at one
and one-half times the basic rate of pay.) Stand-By pay is intended to compensate
employees for inconvenience, disruption of their personal life, and for reasonable
time spent solving customer service/emergency problems that are amenable to
resolution from a remote location.
* * *
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5.4 Call-Out Pay: Employees who are called out will be compensated with a
minimum of three (3) hours at the overtime rate which includes travel time. I the
Call-Out requires over three (3) hours, then the employee shall receive overtime p
pay for the actual duration of the Cal-Out.
* * *
(JX 1, pp. 6-7 .)
//
//
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SUMMARY OF FACTS
About the Grievances
From March 18 to May 6, 2020,4 the Employer’s position as to Call Out pay to
employees on Reserve Status affected 11 to 13 CSOs 5 who were called out on at least 27
different occasions (UX 4, p. 9-10), and at least one plant maintenance employee, DeWayne
Derrick, who was called out on at least one occasion (EX 10).
On May 14, May 22, and June 4, separate Grievances were filed on behalf of plant
operations employees, plant maintenance employees, and CSOs, respectively. They appeared to
have been consolidated for consideration by the Employer.
On June 22 and July 2, the Grievances were denied at Step Two (EX 12, 13).
On September 15, the Grievances were denied at Step Three (EX 14).
Thereafter, this Arbitration was set for hearing.
About the Merits
Most of the material facts are undisputed.
The Grievances arose out of a unique set of facts that occurred during a period spanning
mid-March to mid-May 2020 (“Period”), when state and local shelter-in place-orders (“Orders”)
addressing the COVID-19 pandemic were issued (EX 1, 3) and caused the District to impose
alternate, reduced work schedules (EX 5, 6).
The main purpose of the alternate work schedules was to address the income insecurity
faced by District employees who could no longer work their normal schedules once the Orders
went into effect. The quarantine imposed by the Orders went into effect about a year before the
Grievances went to arbitration. The workforce was worried about the possibility of drastically
4 Unless otherwise noted, all dates referred to are in 2020.
5 Among the affected employees were CSOs Covington, Crowe, DeLuca, DiMaggio, Goss, Mangini, Nwansi, Pen,
Petitt, Reimer, Rocha, Swan, and Walus (UX 4, pp. 9-10).
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reduced income caused by layoffs, unpaid furloughs, and/or reduced work schedules. It was a
time of “anxiety,” “chaos,” “confusion,” “fear” (R.T. 25, 84). Confusing and sometimes
contradictory information was circulating among the workforce. HR Manager Teji O’Malley
reported that her telephone was “ringing off the hook” with calls from upset employees. They
were crying in her office. She used to joke that she entered the field of HR because it was not
about “life or death.” But with the advent of the pandemic, that no longer seemed to be true
(R.T. 84, 86).
The Employer addressed this worry by using Admin Pay to ensure that CSO and plant
maintenance employees were compensated for the standard 40-hour work week even though they
were not performing standard work, much less performing it for 40 hours per week. The
Employer considered this a “pure” and “generous” benefit paid in order to avoid the layoffs,
unpaid furloughs, reduced schedules, and similar steps that were being adopted by other Bay
Area sanitation employers (EX 4; R.T. 29).
The alternate work schedules attempted to strike a balance between continuing to provide
essential sanitation services to the District’s half a million customers and safeguarding the health
and well-being of employees. Under these alternate work schedules, CSO employees were
ordered to reduce their presence in the workplace by rotating between working onsite for one
week and then “working”6 remotely from home for two weeks (EX 5). Similarly, plant
maintenance employees were ordered to reduce their presence in the workplace by rotating
between working onsite for two weeks and then “working” remotely for two weeks (EX 6).
Shift schedules were staggered too. For CSOs, working remotely from home consisted primarily
6 The term “working” appears in quotation marks to express my understanding that employees on Reserve Status
were paid as if they were performing standard work when in fact they were home-bound and performing little to no
standard work.
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of studying online training videos. But apparently, not enough hours of online training were
assigned to add up to 40 hours of work per week. The balance of the time spent “working”
remotely from home was considered “reserve” time and the employees so assigned were
considered to be on Reserve Status (EX 7, p. 2).
On or about March 16, the Orders went into effect.
On March 17, at an emergency meeting of its board of directors, the District’s general
manager was authorized to impose the alternate work schedules described above and to
supplement employees’ income for the reduced hours actually worked with administrative
release pay (“Admin Pay”) for hours spent on what it called reserve status (“Reserve Status”).
Eventually, 14,000 hours of Reserve Status time were paid to compensate employees for the
difference between the pay earned for hours actually worked and the straight time pay that they
would have earned for working a full 40-hour week (EX 7).
On or about March 18, at a meeting with Union members, CSO Manager Paul Seitz
advised there would be “no change in overtime or on call.” He also said employees “could not
go on vacation because they are expected to be at the ready in a standby capacity” (EX 11).
But soon thereafter, a dispute arose over premium pay for Call Out duty. Call Out duty
refers to the practice of calling out to the field a crew who already is on standby to deal with an
after-hours emergency, such as a sewer blockage. At all relevant times, each crew consisted of
two CSOs. Under Article II, Section 5.4 of the MOU, employees who are called out “will be
compensated with a minimum of three (3) hours at the overtime rate” (JX 1, p. 7). Regarding the
Period, during weeks when employees were scheduled to work onsite, the Employer paid full
premium pay to workers on Call Out duty. But during weeks when employees were assigned to
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stay at home, the Employer credited against Call Out duty the straight time hours spent on
Reserve Status for which employees were compensated with Admin Pay.7
On April 23, in an email to Employer and Union representatives, Human Resources
Manager Teji O’Malley explained the District’s position as to the compensation of employees on
Reserve Status who performed Call Out duty in this manner:
Stand-by/Call-Out/Overtime while on “reserve” status: With the new schedules,
we have split employees into distinct crews who are rotated on and off site.
While they are off-site, they are considered to be in reserve status where no
District work is conducted but they are on-call should we need them to report to
work. They get paid their hourly rate while they are on reserve. While reviewing
this last period’s timesheets, we saw that several employees who were on reserve
but reported on-site (either voluntarily or because they were designated as stand-
by) before or after their regularly scheduled work hours recorded that time as
overtime. Since those hours in reserve status were not actual work hours, the
District will compensate employees with the OT (premium) rate but will deduct
the corresponding amount of hours from the reserve time.
i. Example 1: Employee is on stand-by and on reserve and his
regular shift is 7:30 am to 4:00. He gets a call-out at 6 pm and
works for one hour. He will get the three hours of minimum call
out time at the overtime rate but the District will deduct three hours
of straight pay from the 8 hours of reserve time.
ii. Example 2: Employee is not on stand-by but on reserve and his
regular shift is 7:30 am to 4:00 pm. He gets a request to come to
work at 7 pm and works for one hour. He will get the hour at the
overtime rate but the District will deduct one hour of straight pay
from the 8 hours of reserve time.
(EX 7, p. 2) (emphasis in original.)
In one or more subsequent emails, Ms. O’Malley restated this position (EX 16, 17).
//
7 It is undisputed that working three (3) hours of Call Out duty at the overtime rate of time and-a-half is the
equivalent of working four and-a-half (4.5) hours at the straight time rate. So the District adjusted weekly employee
compensation during the Period by deducting three (3) hours from the standard 40-hour work week covered by
Admin Pay, and then paying an additional one and-a-half (1.5) hours of straight time. The Grievances seek to
recover at least one and-a-half (1.5) more hours of pay per Call Out per employee.
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DISCUSSION
About the Merits
The Union takes the position that the Employer violated Article II, Section 5.4 of the
MOU by failing to pay affected employees in two classifications – collection system operator
(“CSO”) and plant maintenance employee – the full overtime rate for time worked on Call-Out
duty in addition to their regular straight time wages.
For at least two reasons, I respectfully must disagree.
First, the purpose of Call Out duty is to provide premium pay to employees who are put
to the time and trouble of working extra hours – that is, hours worked in addition to their normal
daytime schedules. No such purpose would be served by providing premium pay to employees
who were stuck at home on schedules that must be characterized as non-normal. To require
compensation of employees with premium pay when they were called out from their homes,
where they already were collecting straight time pay for doing little to no actual work, would
bestow upon them an extra benefit rather than make them whole.
Second, adopting the Union’s position would create a windfall for affected employees.
The Employer was under no contractual obligation to supplement employees’ income for the
reduced hours actually worked with Admin Pay for hours spent on Reserve Status. The MOU
contains no provision guaranteeing 40 hours per week or any other minimum number of hours of
work. Therefore, as I s ee it, the Employer was entitled to adjust the compensation of affected
employees in order to account for the few hours actually worked, including Call Out duty hours.
The advent of the Orders and the quarantine imposed thereafter, along with the
Employer’s switch to alternate schedules, created a time of uncertainty, especially for employees
who were worried about layoffs, unpaid furloughs, and/or reduced work schedules, all of which
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were possibilities. These measures were being taken by sanitation employers elsewhere in the
Bay Area. Any of these measures, if adopted by the District, could have meant drastic cuts to the
income of employees. The Employer stepped up by using Admin Pay to ensure that CSO and
plant maintenance employees were compensated for the standard 40-hour work week even
though they were not performing standard work, much less performing it for 40 hours per week.
To find against the Employer would be to penalize it for being generous under the very
circumstances when generosity should have been welcomed.
That said, the argument advanced by the Union is not without merit. The Union contends
that the Employer violated the plain meaning of Article II, Section 5.4 of the MOU by deducting
Call Out hours from employees’ paychecks. According to this reasoning, employees’ Call Out
hours should have been added to their Admin Pay so as to compensate them for the standard 40-
hour work week, plus extra pay for Call Out duty, not deducted from their straight time hours.
No exceptions to the premium pay requirement for Call Out duty appear in the contract. So a
literal reading of the foregoing provision, standing alone, tends to support the Union’s argument
(see Union’s Closing Brief at 5).
But Article II, Section 5.4 must be read in context. I have an obligation to give proper
effect to all relevant provisions of the contract, not just this one. To this end, at least three other
provisions of the MOU address management rights in the event of an emergency such as that
occasioned by the advent of the Orders and the quarantine.
For example, Article I, Section 2.2, which outlines the District’s rights, provides:
The rights of the District include, but are not limited to, the exclusive right to . . .
direct, classify, and assign its employees; . . . relieve its employees from duty
because of lack of work or for other legitimate reasons; . . . determine the
methods, means, and personnel by which District operations are to be conducted; .
. . and take all necessary actions to carry out its mission in emergencies; . . .
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provided, however, that the exercise of such District rights shall not conflict with
the express provisions of this Memorandum.
(JX 1, p. 2) (emphasis supplied.)
As I view it, the Employer’s adjustment of Call Out pay, together with its imposition of
alternate work schedules, was part and parcel of its exclusive right to “direct, classify, and assign
its employees; . . . relieve its employees from duty because of lack of work or for other
legitimate reasons; . . . and take all necessary actions to carry out its mission in emergencies,”
including the emergency occasioned by the Employer’s response to the Orders and quarantine
accompanying the onset of the COVID-19 pandemic.
For another example, Article II, Section 5.1 provides: “Employees are required to be on
Stand-By in order to provide customer service after normal working hours or to be able to
respond quickly to emergency situations” (JX 1, p. 6) (emphasis supplied). As I view it, the
affected employees were not providing customer service “after normal working hours”; in fact,
not much about their working hours could be considered “normal.”
For a final example, Article II, Section 5.2 of the MOU provides: “Stand-By pay is
intended to compensate employees for inconvenience, disruption of their personal life, and for
reasonable time spent solving customer service/emergency problems that are amenable to
resolution from a remote location” (JX 1, pp. 6-7) (emphasis supplied). This language suggests
that, like standby pay, Call Out pay is intended to compensate employees with a premium for
“inconvenience, disruption of their personal life, and for reasonable time spent solving customer
service/emergency problems.” But the types of “inconvenience” and “disruption of their
personal life” contemplated by this language are those inconveniences and disruptions caused by
having to work on customer service emergencies, not those caused by having to leave a home-
bound assignment during a public health emergency.
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It should be noted that, regarding CSO Manager Seitz’s explanation that nothing would
change with respect to Call Out hours paid during the Period (see Union’s Closing Brief at 4),
this remark is not quite enough to overcome the record as a whole. What Mr. Seitz said doesn’t
help the Employer’s case, but an isolated statement to Union members made in a climate of
confusing and sometimes contradictory information cannot be considered an ironclad promise
that preempts consideration of the other relevant provisions in the MOU, either.
Accordingly, I find no violation of the MOU, and therefore, that the Grievances should
be denied.
//
//
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A W A R D
Wherefore, in light of the foregoing Opinion, I hereby make the following Award:
1. The Employer did not fail to compensate CSO and plant maintenance employees
as required by Article II, Section 5.4 of the MOU for callouts during the period approximately
mid-March to approximately mid-May 2020.
2. The appropriate remedy is that neither the Union nor the Grievants shall take
anything by the Grievances.
BY:
Christopher David Ruiz Cameron
Neutral Arbitrator
DATED:
April 13, 2021
Los Angeles, California
Call Out Pay Contra Costa County & PEU 1 Op & Award by Cameron
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