Member Awarded Two Months' Standby Pay in Arbitration Victory
January 6, 2009
An arbitrator has awarded a Unit 3 member more than two months of standby pay after determining that his employer, the Mass Highway Department, had wrongly denied him the pay in violation of the bargaining unit’s contract. NAGE attorney Rebecca Mitchell successfully represented the grievant.
“Mass Highway tried to play with semantics in this case, but fortunately, the arbitrator saw through it and awarded the grievant his due pay,” said Mitchell. “In the end, good sense and fairness prevailed.”
The bargaining unit’s contract states that an employee who is required to be available on standby shall be paid standby duty pay. It further states that “standby duty shall mean that a department head has ordered any employee to be immediately available for duty upon receipt of a message to report to work.” The contract also specified that if the employee is paged or called after hours and does not respond, the employee is not entitled to standby pay for that pay period.
The grievant, an Electrician II, filed his grievance in November 2006 after his employer denied him standby duty pay, even though when he was hired, he was issued a pager, bucket truck, and “emergency placard.” He was also told in his pre-hire interview that he had to report to after-hours calls “immediately” and “to the best of his ability.” To boot, his job description, his annual EPRS, and subsequent Electrician I and II job postings all stated that the position involved being available to respond to emergencies. The union argued that essentially being on call 24/7 was a requirement for the job.
The dispute in this case centered on the interpretation of “required” and “ordered” as stipulated in the contract article. The employer contended that, because no discipline would result from an electrician not responding to an after-hours page or a call, then the electrician is not required or ordered to be on standby. Furthermore, it argued, an electrician who is called from a list of employees available to respond in an emergency but does not answer or refuses the call must not be on standby.
The union successfully argued that an electrician is a required to be a standby employee, is entitled to receive the corresponding pay, and only forfeits stand pay for that specific pay period when the electrician is called from the list and fails to respond. In short, the Employer’s argument that an employee is on a list of many standby employees and can refuse a call, and further is not disciplined when he does so, does not negate the fact that the employee is a standby employee and regularly deserves standby pay.
The arbitrator agreed with the Union and found that the employer violated the collective bargaining agreement and ordered that the grievant should be made whole in accordance with terms of the contract.