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overtime. The arbitrator found that the State did
not violate Section 13.07. When the State placed
the grievant on a Monday – Friday schedule in
the years before the Agreement it did not create a
practice which would bind it forevermore. The
parties were confronted with a changed
environment. For the first time in 1987 they were
operating under a collective bargaining
agreement. One event or action does not serve to
bind the employer or the Union. It takes constant
repetition to create past practice. 303
The grievant was found to be working within his
classification and whether a supervisor is present
at work is a matter for the employer to
determine. The presence or absence of a
supervisor does not go to the issue of whether
the employer is rescheduling the grievant to
avoid overtime. 303
A “regular” schedule as contemplated by Section
13.07 of the Agreement is not limited to Monday
– Friday. In the case where the grievant works
six months on a Monday – Friday schedule and
six months on a Tuesday – Saturday schedule,
neither schedule is more irregular then the other.
The standard work week must be forty hours
followed by two consecutive days off. Section
13.07 is instructive in its silence; a standard
work week does not necessarily mean a Monday
-Friday schedule. 303
The Union bears the burden to demonstrate that
the State staffed the machine so as to avoid the
payment of overtime. The State deciding to use
that particular machine is permissible under the
Management Rights section of the Agreement,
Article 5 it was not shown that the operation of
this machine was done to avoid overtime pay to
employees. Section 13.07 is inapplicable since
the employer did not change the work schedules.
The employees themselves
Volunteered. 329
That some tasks by the grievants were left
undone is insufficient to determine the outcome
of this dispute. The Union charged that the State
was rescheduling employees to avoid payment of
overtime. Managers can allocate scarce
resources. This case did not involve the
employees working out of their classification or
work area. The fact that another county chose to
allow employees to work overtime does not
control the managerial actions of the agency.
329
Since the employees were not eligible for pay
beyond their regular hours under §37.04 they are
not eligible for overtime under §13.07 of the
Agreement. 345
The case was determined to be arbitrable since
the notifying event was the purging of the
overtime rosters which caused the grievant to be
aware that any inequity in the past overtime
distribution could not be rectified through
additional overtime opportunities. Until the
grievant saw the posting he relied on assurances
by management that his overtime would be
equalized with the other employees. The
arbitrator found that she was restricted to
considering only those overtime opportunities
which had occurred within ten days prior to the
filing of the grievance. Without the initiation of
formal grievances during the period complained
of, the recovery of lost overtime cannot be
permitted, especially in view of the fact that the
agreement to purge the overtime roster was a
joint decision. 365
The grievant was a Psychiatric Attendant who
had been mandated to work overtime. The
grievant notified the employer that he would be
unable to work over because he had to meet his
children’s school bus and was unable to find a
substitute, and he signed out at his normal time.
The grievant had two prior suspensions for
failure to work mandatory overtime. Ordinarily,
the “work now grieve later” doctrine applies to
such situations, however the arbitrator noted that
certain situation alter that policy. The grievant
gave a legitimate reason for refusing the
overtime and the employer was found to have
abused its discretion in not finding a substitute.
The grievant was found to have a history of
insubordination and inability to arrange alternate
child care. Upon a balancing of the parties’
actions, the arbitrator held that there was no just
cause for removal, but reduced the penalty to a
60 day suspension. 415
Section 1.03 is intended to give bargaining unit
employees first crack at overtime before work
goes to non-bargaining unit employees, but in
this case, one cannot conclude that inmates were
non-bargaining unit employees. Furthermore,
since the work was carried out during the regular
work day. Unit 6 employees did not lose work or
overtime opportunities. 467 (1992-94 contract)
The Arbitrator rejected the State’s argument that
awarding back pay for missed overtime