The Grievant, a Patrol Officer, works four (4) consecutive ten-hour shifts with three (3) consecutive days off.  Overtime is paid for all hours worked in excess of forty (40) hours in a normal workweek. The Employer notified its Officers that they would be required to attend a mandatory ten-hour training on July 19, 20, or 21. The Grievant’s scheduled days off were the three (3) days offered for this training. Grievant attended the training on his day off, July 20th, and then intended to work his next regularly scheduled shift on July 22nd. However, the Grievant was not permitted to work on July 22nd because the Employer adjusted his schedule to attend the training. Otherwise, the Grievant would have received ten (10) hours of overtime pay for working his shift on July 22nd. The Collective Bargaining Agreement (CBA) states “members shall not be required to flex time-off or take other leave to avoid overtime.” A grievance was filed arguing that the Grievant was required to flex time off to avoid overtime for his shift on July 22nd.

The Employer argued that while the CBA requires Officers to receive three (3) consecutive days off, the Chief has discretion to change shift schedules for training. There have been several occasions over the last 20 plus years when an Officer’s days off have been switched to accommodate training. The Employer argued that this has established a past practice since the Union has never grieved this issue in the past. The Employer also argued that “flex time” is not clearly defined in the CBA. The prohibition in the CBA is to prevent requiring an Officer to change his/her scheduled “start time” or “end time” to avoid overtime. “Flex time” does not mean changing one’s entire shift. While an Officer cannot be required to flex for a partial day of training, they can be required to flex for a full day of training.

The Union first argued that the language is clear and unambiguous, employees cannot be forced to flex time off to avoid payment of overtime. There is no special distinction between “flexing time off” for a partial day or a whole day. Under the Employer’s interpretation, Officers cannot be required to take a partial day off but could be required to take a whole day off. This interpretation is nonsensical and not supported by the contract language. Second, there is no long-standing past practice accepted by the parties where officers can be forced to take a different day off when mandated to attend training on their day off. Only when Officers have requested to attend voluntary training on their days off have they agreed to change their days off, but there has never been a mandate. Lastly, the Union argued that the Employer’s ability to adjust an Officer’s schedule due to training only prevents a violation of the “consecutive days off” requirement under the CBA. This language does not permit the Employer to force an Officer to take a different day off against his/her will to avoid the payment of overtime. The Employer bargained away any traditional management right to adjust a schedule by requiring an Officer to take a day off.

The Arbitrator found there was no established past practice. This was the first time the Employer mandated a full training day requiring forfeiture of a scheduled day off. The Arbitrator then focused on whether requiring the Grievant not to work on July 22nd was requiring him to flex his time off to avoid overtime. The Arbitrator noted that “flex time” is not defined and that there is no limit to the number of hours that can be “flexed.” Further, the only reason Grievant was told not to appear for his regularly scheduled shift on July 22nd was to avoid overtime payment. Finding no language in the management rights provision to justify the shift change, the Arbitrator concluded the Grievant had a right to work his regularly scheduled shift on July 22nd.

Grievance is sustained. Grievant is entitled to ten (10) hours pay at the overtime rate. The Arbitrator also ordered the Employer to cease and desist from ordering Officers not to report on a regular scheduled day of work when those Officers are required to attend training on a day off and wish to work their regularly scheduled days.

Employer: City of Pataskala                                                 Date: May 2024