CONNECTICUT STATE BOARD OF MEDIATION AND ARBITRATION LABOR DEPARTMENT 38 WOLCOTT HILL ROAD ‘WETHERSFIELD, CONNECTICUT Friday, April 04, 2014 ‘TRANSMITTAL MEMORANDUM Wallingford, Town of and IBEW Local 457 Case # 2013-A-0597 Wallingford Elec. Prod.Clerical 4 ARBITRATION AWARD Copies were sent to the following parties Simon Allentuch, Esquire Douglas A. Cho, Esquire Dennis Ciccarillo, Esquire Robert A. Massa Terence P. Sullivan, H.R. Director Betty Kuehnel John Fernandes, Buss. Mgr./Financial ‘Town Clerk* File *When applicable, this transmittal is filed with the town CONTACT PERSON clerk in accordance with Section 31-98, Chapter 560, of aes ieee the Connecticut General Statutes.STATE OF CONNECTICUT LABOR DEPARTMENT CONNECTICUT BOARD OF MEDIATION AND ARBITRATION ARBITRATION AWARD In The Matter Of: DATE OF AWARD: APril 4, 2014 Town of Wallingford HEARING DATE: DECEMBER 6, 2013 HEARING LOCATIOI And State Board of Mediation and Arbitration 38 Wolcott Hill Road Wethersfield, CT IBEW, Local 457 Case No. 2012-A-0597 APPEARANCES: Dennis G. Ciccarillo (For Town of Wallingford) Simon |, Allentuch (For Union) ISSUE: 4. Did the Town of Wallingford violate the contract for the Clerical Unit of the Electric Division regarding the workday of February 11, 2013? If so, what shall the remedy be? 2. Did the Town of Wallingford violate the contract for the Production Unit of the Electric Division regarding the workday of February 11, 2013? If so, what shall the remedy be? FACTS: ‘The Town of Wallingford owns and operates a public ulilty that distributes electricity to town residents and businesses. IBEW Local 457 Union represents the workers in the Town's Electric Division which consists of a "Production Unit" and a “Clerical Unit", The provisions of the two collective bargaining agreements for these two units are very similar. The Union claims that the Town violated both agreements when the Town ordered members of the units not to report to work and failed to pay them their wages for February 11, 2013, two days following a major snowstorm. The Town contends that under the agreements it has the right to decide When it pays employees and when it allows them to work. The Union demands that the Town pay the affected unit members for February 11, 2013 or award them a replacement vacation day if they had elected to use vacation time in order to be paid for that day. a1.Beginning on the afternoon of Friday, February 8, 2013, and continuing into Saturday, February 9, 2013, most of the State of Connecticut suffered a significant snowstorm, and the Town of Wallingford received approximately 40 inches of snow. On Sunday, February 40, 2013, Wallingford’s Mayor, Wiliam W. Dickinson, Jr., closed Town Hall and Town offices, other than emergency services, for Monday, February 11, 2013. He directed department heads and managers to alert employees not to report except if they were needed as emergency personnel. The Mayor sent "reverse 911" recorded phone messages to Town households ‘The Mayor's February 10, 2013 message stated in part Our Town and State are strugaling with the unprecedented blizzard snow ... Every effort is.being made to open up, if nnt completely clear, local roads Tuesday afternoon is the earliest we can expect that all roads will be open. Please stay indoors ... Public Works is assisting our Fire Dept. in gaining access down roads for medical and other emergencies. Town Hall and non-emergency offices will be closed on Monday. ‘The Mayor's February 11, 2013 message stated in part: We are hard at work to clear the roads, Public Works has 30 trucks and 5 pay loaders removing the unprecedented snow accumulation from the 240 miles of roads in Wallingford. Please stay off the roads and be patient... Fire Dept. Emergency response has the National Guard and 4 Humvees assisting in reaching medical and fire calls. (On February 14, 2013, the Mayor issued a memorandum to Department Heads, Managers and Staff as follows: ‘As you are aware, town government offices were closed on Monday, February 11" due to the unprecedented snow fall and unsafe traveling conditions. The closing of offices seems to always create arguments about payment of wages. ‘Some managers and employees were requested to report for work to support snow removal and. public safety operations, and some were not requested to- report for work. We believe that collective bargaining contracts do not require the payment of wages unless an employee has reported for work. Department Heads, Managers and employees who did not report for work may take a vacation day in order to receive wages for Monday, We believe that this is a fair and just resolution of the questions that arise when payment of wages to employees who have not worked are raised by those employees who did work. A few Electric Division employees, namely the system operators who operate the "SCADA" system, were required to report for work on February 11, 2013 as emergency personnel, All other division employees were ordered to stay home and had to use @ vacation day in order to be paid for February 11, 2013.‘The Mayor testified that there had been one ocoasion where Town employees did not come to work because of a weather-related event, and that there were also past occasions when Town offices were closed early in the afternoon due to bad weather in order to allow employees extra time to travel home, and that in all of the above occasions the Town employees were paid in full despite the closings. UNION’S POSITION: The Union alleges that by ordering Electric Division employees to stay at home and not pay them, the Town violated the Agreements, specifically Article 4 of the Production Unit Agreement (Hour of Work and Rates of Pay) and Article 13 (Strikes and Lockouts), and Article § of the Clerical Unit Agreement (Hour of Work and Rates of Pay) and Article 14 (Strikes and Lockouts) (see Joint Exhibits 1 and 2). The language of these agreements states that the normal work week shall consist of five days of eight hours each, Monday to Friday. The Union alleges that although it snowed heavily from February 8 (Friday) until February 8 (Saturday), the following Monday was a normal day in a normal work week. The Union claims there is no provision which gives the Town the option to not pay employees when it orders them not to come to work due to inclement weather. The Union claims the only other provision in the agreements that potentially addresses this situation is the "lockout provision’ and that such lockouts are prohibited (see Article 13 and Article 14), ‘The Union offered the testimony of John Fernandes, Business Manager for the Union, that wage and hour provisions are bargained-for provisions, and that under MERA, Conn, Gen. Stat. § 7-460 et seq., a municipal employer must bargain with the union over certain topics including wages and hours. The Union contends that the Town must also bargain for any specific rights which it seeks to hold or any rights which it seeks to deny employees. The Union contends that if the Town-wanted to' maintain the right to not pay the employees of these units under certain conditions, such as a Town closure, it could have done so but failed to in regard to the two pertinent agreements. The Union further contends that there is no "emergency" or "Act of God" exception to paying Electric Division employees under the agreements, and that if the Town wanted this right it had to bargain for such an exception to the wage and hours provisions. Furthermore, the Union claims that past practice supports that the employees should have been paid since the Mayor testified that there was one occasion where the Town closed due to a weather related condition yet Town employees were paid for that day, and that the Mayor also testified that during the winter Town employees were occasionally allowed to leave early because of snow yet were still paid for the entire day. There was no testimony indicating aethat, other than the snowstorm at issue, there has ever been an occasion when the Town did not pay its employees for a full day because of a weather-related Town closure. ‘The Union further argues that, although irrelevant, the Town's claim that the weather was too severe to allow Electric Division employees to work because of public safety concerns was not a reasonable position by the Town. The Union claims that Electric Division employees are regularly required to work in severe and dangerous weather. Paul Lehr, an electrician in the Electric Division, testified that he always works during snow storms including the storm called the "Halloween Nor'easter” of 2011. Mr. Fernandes, as a former lineman with years of service, offered similar testimony. Mr. Fernandes also testified that substantially every other electric utilty worker in Connecticut was working on February 11, 2013, including workers for Connecticut Light & Power, United lluminating and the Town of Norwich's electric division. ‘TOWN’S POSITION: The Town contends that the Union bears the burden of proving that the Town violated the contract when it did not pay Electric Division employees who did not work on February 11, 2013. The Town claims that: The issue is not whether there is affirmative language allowing the Mayor to close Towm offices, or whether there is affirmative language allowing the Town to keep employees from working, as suggested by the Union Business Agent. The issue is whether there is any language which specifically curtails or limits management's rights to deal with this particular emergency. ... Crucially, there is no requirement that employees be paid for not working. There is no requirement that the Town provide 40 hours of work and/or pay every week. Put another way, work is the predicate, the pre-condition, for payment, When an unprecedented, emergency situation presents itself, and an employer cannot safely open for work, there is no work, hence no pay. The unprecedented, emergency conditions that presented themselves on that weekerid and entering the workweek had to be addressed by the Mayor. His judgment was to keep employees off the road unless they were actually serving the emergency needs. ... His judgment was not to pay employees for not working, while emergency personnel who did work, whether polica, fire, public works, or select employees from utilities, such as the system operators, got paid ‘The Town further contends that Managerial freedom to act may be expanded and managerial obligations may be narrowed if management's performance is affected by an emergency, an act of God, or a condition beyond the control of management. The collective bargaining agreement may provide exceptions for these situations or an arbitrator may hold such exceptions to be inherent and necessarily implied. ... A severe snow storm oacan be regarded as an act of God allowing an employer to ciose operations. [Citations omitted), DISCUSSION: After a review of the testimony and evidence presented in this matter, it is concluded that the Town violated the agreements by failing to pay the Electric Division employees regarding the work day of February 11, 2013. The relevant agreements do not give the Town authority to not pay the Electric Division employees when the Town ordered them not to report for work because of the weather-related conditions on February 11, 2013, While the evidence shows the ‘Town faced difficult road conditions and the Mayor was acting in good faith and out of genuine concer for public safety in closing Town offices, nevertheless these facts do not relieve the ‘Town of having to pay Electric Division empioyees for the Town's decision to close. Both agreements clearly set certain wages and hours and establish @ normal work week as 40 hours worked Monday through Friday for Electric Division employees. Once the parties have agreed to certain hours and wages, the Town doss not have the unilateral authority to decide not to pay its employees for work scheduled during the established days and hours. ‘There is no specific or general exception contained in either agreement granting the Town a weather-related exception to paying such wages. There is also no specific or general provision allowing the Town to require employees to use vacation time in order to get paid for days the Town decides to close due to weather-related conditions. Furthermore, while there apparently were not many examples of prior weather-related Town closings that might establish a past practice, what few examples were offered at the hearing suggest that the Town did pay its employees when weather-related closings occurred, which supports the Union's position. In addition, there were no past instances cited where the Town did not pay iis employees because of a weather-related closing. Finally, even if we were to accept the Town's general contention that it has the managerial freedom to order Town employees to stay at hame and not pay them for a weather- related reason, it was not reasonable for the Town to do so with regard to these particular Electric Division employees. That is because the testimony at the hearing established that Electric Division employees are often required to work in extremely adverse weather conditions due to the underiying nature of their jobs in maintaining the Town's electrical supply system. In fact the Production Unit agreement has provisions that address the requirement of working during an “emergency” (Article 4, Sections 2, 3, 4 and 5), and Article 15, Section 4 also states:In case of an emergency requiring the services of Electric Division employees outside of the regular scheduled hours, such employees, upon proper Notification, shall report to their assigned stations as soon as possible, but within one-half (1/2) hour of such notification. Failure of the employees to report for ‘such an emergency, unless substantiated by a satisfactory, factual excuse, shall be reason for disciplinary action. Given that these employees are required to work in adverse weather conditions, and must report to work during an emergency if required by the Town, it is unreasonable and inconsistent for the Town to claim that it has the right to order these same employees to stay home and not pay them due to a weather-related closing on February 11, 2043. FINAL AWARD: ‘The Union's grievance is sustained and the affected employees of the Clerical Unit and the Production Unit of the Electric Division shall be made whole for any vacation time used and be credited for wages for the day of February 11, 2013. fo (Public Arbitrator & Chairman) eal ltt, DoE Robert A. Massa (Management Arbitrator) Char kd yy KEBLE Elizabeth M. Kuehnel (Union Arbitrator)