PDF In Re the Arbitration of: WASHINGTON PUBLIC EMPLOYEES ...

In Re the Arbitration of:

WASHINGTON PUBLIC EMPLOYEES )

ASSOCIATION,

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Petitioner, )

)

)

and

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)

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STATE OF WASHINGTON,

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Respondent. )

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AAA 75 390 00355 06 LYMC Grievance ? Heikkila, Inman,

Bash, Crigger, GeistWork Hours

OPINION AND AWARD

Date of Award: June 13, 2007

Arbitrator Carol J. Teather Attorney at Law 5278 N.E. See Forever Lane Poulsbo, Washington 98370 Tel: (360) 598-2621

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OPINION OF THE ARBITRATOR

Proceedings

On March 17, 2006, Washington Public Employees Association, UFCW Local 365 ("Union") filed a grievance on behalf of five bargaining unit members, Kurt Heikkila, Jerry Inman, Greg Bash, Kevin Crigger, and John Geist ("grievants") against their employer, the State of Washington, Department of Natural Resources ("Employer") regarding the grievants' hours of work. Specifically, the Union alleges that due to the conditions under which they work in the interest of their employer, the grievants are unable to take unpaid lunch breaks and, therefore, are working under a straight shift schedule and should be compensated in accordance with Article 6, section 6.6. of the 2005-2007 Collective Bargaining Agreement Between The State of Washington and Washington Public Employees Association ("CBA"). Exhibits ("Exs.") 1 and 5. The parties were unable to resolve their dispute in the initial steps of the grievance procedure and the grievance was brought to arbitration pursuant to Article 27, Section 27.2 of the CBA. The arbitrator was selected through the American Arbitration Association.

A hearing was held on April 12, 2007, in a conference room at the State Attorney General's Office, Tumwater, Washington. The Union was represented by Leslie Liddle, Executive Director, Washington Public Employees Association, and the Employer was represented by Kari Hanson, Assistant Attorney General. At the hearing, the parties stipulated that the grievance was arbitrable and there were no timeliness issues. The testimony of witnesses was taken under oath and the parties presented documentary evidence. A formal record was made of the hearing by court reporter, Terri L. Averill of Dixie Cattell & Associates.

The parties filed post-hearing briefs which were received by the arbitrator on May 10, 2007, and the hearing was declared closed on that date.

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List of Exhibits1

Petitioner Exhibit 1 - Grievance 06-GG-034

Petitioner Exhibit 2 - Step 1 Response

Petitioner Exhibit 3 - Step 3 Response

Petitioner Exhibit 4 - WAC 296-126-092

Joint Exhibit 5

- 2005-2007 Collective Bargaining Agreement

Respondent Exhibit 6 - Organizational Chart, Department of Natural Resources,

Aquatic Resources Division

Respondent Exhibit 7 - Classification Questionnaire, Program Coordinator,

Ken Dean

Respondent Exhibit 8A- Position Description, Land Technician 2-John Geist

8B- Position Description, Land Manager 1-Greg Bash

8C- Position Description, Land Manager 1-Jerry Inman

8D- Classification Questionnaire, Land Technician 2-

Kurt Heikkila

8E- Classification Questionnaire, Land Technician I-

Kevin Crigger

Respondent Exhibit 9A ? DNR Geoduck Compliance Log 8/25/05

9B ? DNR Geoduck Compliance Log 10/21/05

9C ? DNR Geoduck Compliance Log 2/10/06

9D ? DNR Geoduck Compliance Log 5/3/06

9E ? DNR Geoduck Compliance Log 8/14/06

9F ? DNR Geoduek Compliance Log 11/29/06

Respondent Exhibit 10A-Picture of Vessel "Sentinel"

10B-Picture of Vessel "Guardian"

10C-Picture of Vessel "Dawn Breaker"

10D-Picture of Vessel "Legacy"

List of Witnesses

Kurt Heikkila, Gregory Bash, Jerry Inman, Kevin Crigger, John Geist, Ken Dean, Mike Chevalier, Todd Palzer,

Issues Did the Employer violate Article 6, section 6.6 of the Collective Bargaining

Agreement with respect to the work schedules of grievants Heikkila, Inman, Bash, Crigger and Geist? If so, what is the appropriate remedy?

1 All of the exhibits were admitted into evidence.

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Positions of the Parties

The Union maintains that the grievants' duties require them to be on a boat or diving from a boat for eight hours per day during the entire geoduck harvest period. The Union further maintains that grievants do not have sufficient relief from their duties to enjoy an unpaid 30-minute meal period during the harvest day. The Union contends that the CBA provides for assignment of a straight shift for employees, such as the grievants, who are unable to be relieved from duty for an unpaid meal period due to working conditions. The Union believes the Employer has violated the terms of the CBA by not assigning the grievants to a straight shift schedule in accordance with Article 6.6.

The Employer agrees that grievants work on a boat and are unable to leave the boat to take a 30-minute unpaid lunch period on a regular basis. The Employer, however, contends that there is plenty of downtime during the day for each employee to take a full 30-minute lunch break, during which time he is not expected to work and is not actually working. The Employer also contends that the grievants were fully aware that most of their work would be on a boat on the water all day at the time they took their positions. The Employer maintains it did not violate Article 6, section 6.6 or any other provision of the CBA. Relevant Provisions of Collective Bargaining Agreement

Article 6: Hours of Work

6.1 Definitions A. Full ?time Employees: Employees who are scheduled to work forty (40) hours per workweek.

B. Law Enforcement Employees: Employees who work in positions that meet the law enforcement criteria of Section 7(k) of the Fair Labor Standards Act (FLSA).

C. Part-time Employees: Employees who are scheduled to work less than forty (40) hours per workweek.

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D. Workday: One of seven (7) consecutive, twenty-four (24) hour periods in a workweek.

E. Work Schedules: Workweeks and work shifts of different numbers of hours may be established by the Employer in order to meet business and customer service needs, as long as the work schedules meet federal and state laws.

F. Work Shift: The hours an employee is scheduled to work each workday in a workweek.

G. Workweek: A regularly re-occurring period of one hundred and sixty-eight (168) hours consisting of seven (7) consecutive twenty-four (24) hour periods. Workweeks will normally begin at 12:00 a.m. on Sunday and end at 12:00 midnight the following Saturday, or as otherwise designated by the appointing authority.

6.2 Determination The Employer shall determine whether a position is overtime-eligible or overtime-exempt. With regard to law enforcement positions, the Employer shall determine if an overtime-eligible position has an extended work period.

6.3 Overtime-Eligible Employees (Excluding Law Enforcement Employees) A. Regular Work Schedules The regular work schedule for overtime-eligible employees shall not be more than forty (40) hours in a workweek, with starting and ending times as determined by the requirements of the position and the Employer. An employee may request different starting and ending times. The Employer may adjust the regular work schedule with prior notice to the employee as defined in this Article.

B. Alternate Work Schedules Workweeks and work shifts of different numbers of hours may be established for overtime eligible employees by the Employer in order to meet business and customer service needs, if the alternate

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