Arbitrator Finds Shift Change Violates Contract, Awards Damages

Written on 08/06/2022
Will Aitchison

Patrol officers for the Village of Cal­umet Park in Illinois are members of the Illinois Labor Council of the Fraternal Order of Police. The contract between the FOP and the Village provides that “the regular work shift will be as follows: Shifts A and B shall consist of four ten-hour shifts. Shift C shall consist of five eight-hour days.” The contract also allows for a deviation from the schedule “in unusual circumstances.”

In May 2021, the Acting Police Chief decided that the current sched­ule was not working and sent a letter to the FOP on May 18 stating that the schedule was being changed effective June 1 to 12-hour shifts. An arbitrator upheld the FOP’s grievance challenging the shift change.

The Arbitrator noted that “the Vil­lage argues it had the right to make the change under the Management Rights clause. That clause does give the Village broad authority. That authority is not unlimited. No action can be taken that conflicts with the specific and express terms of the agreement.

“The contract sets forth the schedule. It is four ten-hour days or five eight-hour days. There is no provision for a 12-hour schedule. Implementing that schedule would violate the agreement unless there are ‘unusual circumstances.’

“The Village has argued it is up to it to determine if circumstances changed and that once it reached that conclusion there can be no contract violation. It leaves no role for the Arbitrator in this decision. The contract authorizes the Arbitrator to ‘interpret the agreement.’ That is a role that arbitrators have per­formed since the Steelworkers Trilogy. The Village can certainly contend there were unusual circumstances that caused the change, but ultimately, it is up to this Arbitrator to determine if this condition has been met. That is no different than an arbitrator deciding if there was just cause for discipline.

“Therefore, the only issue this ar­bitrator needs to decide is whether the Village has proven that in May 2021 there was an unusual circumstance that allowed it to change the contractual schedule. The Acting Chief indicated in his letter that the change in schedule was needed because of ‘recent retire­ments, officers that are injured and lack of available slots in the academies.’“However, the employee who retired did so in July, but he was out on Worker’s Comp since March. There were other officers who were injured and either on light duty or not working at all. What is unclear are the dates they were off. Were they all off simultaneously or was one off and returned and then another was off? What is also unclear is whether this was new. Was this the first time that employees were off due to injury or was this no different from what had been occurring?

“The Village argument also fails to take into account the hiring of two new officers to replace the retirements. This would alleviate some of the problems. The bottom line is that the burden was on the Village to show there was an un­usual circumstance that necessitated the schedule change. The Village is arguing the change in schedule was caused by these openings, but it has not shown there was a difference this time from past times. Furthermore, even if there had been an unusual occurrence that required a change in schedule, when everyone returned why did the schedule not revert to the schedule listed in the contract?

“The contract states: ‘Employees required to work in excess of 40 hours in a work week shall be compensated at the rate of one and one-half times the hourly rate.’ If employees under the 12-hour schedule worked more than 40 hours in a work week and were not compensated, they are to be so paid.”

Village of Calumet Park, No. FMCS 210728-0882 (Dichter, 2022).

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