Arbitrator Upholds Right of Union to Enforce Clear Contract Language
Attorney Patrick Bryant persuaded an arbitrator that an employee represented by 1199SEIU-Massachusetts is entitled to shift differential on the accrued vacation leave she received after retirement.
Employees who work an evening or night schedule usually are entitled to a shift differential to reflect the additional burden and inconvenience associated with irregular work times. These employees receive this shift differential when they work and when go on vacation. This ensures that vacation leave truly compensates when employees take time off. Otherwise, employees would be penalized for taking time off if shift differential was not included.
In this case, a veteran employee, the Grievant, accumulated hundreds of hours of vacation leave through her many years of service. The accumulation did not reflect a decision to hoard leave, but failed efforts to use the leave. Management regularly denied the Grievant's requests to take vacation, because it did not employ enough workers to fill the vacancies created by her absence. So, the Grievant ended up accumulating a high amount of vacation leave above the cap set forth in the contract. The Hospital never enforced this cap.
During the last contract negotiations, the Hospital indicated its intent to enforce the vacation leave cap and proposed a "grandfathered vacation leave bank" for each employee that would mitigate this change. Vacation leave typically is paid at the employee's rate at the time he or she uses the leave. In other words, vacation leave accrued in 2010 but that is not used until 2014 is paid at the employee's 2014 wage rate, not the 2010. But the Hospital suggested that the vacation leave above the accrual cap be placed in a "grandfathered vacation leave bank" and the value of the leave be frozen at pay rate at the time of the deposit. The Union agreed.
The Grievant finally resigned as a permanent part-time employee after Cape Cod Hospital consistently denied her requests to use paid leave. As she had reached the newly-forced vacation leave cap, she was simultaneously barred from accruing or using paid leave. She therefore received was denied the primary benefit of being a permanent part-time employee, as opposed to a per diem employee. After she gave two months notice, the Hospital paid out all of the Grievant's accrued vacation leave, including from the bank, but did not include any shift differential.
The Grievant's grandfathered vacation bank included only leave earned while worked an evening shift, in other words, when she was entitled to a shift leave differential. The arbitrator had little difficulty ruling that the frozen pay rate of the grandfathered leave here included that differential. Because of the clarity of the contract language and a side letter drafted by the Hospital, he found it irrelevant to consider the Hospital's past practice. (The Hospital had never paid shift differential on vacation leave paid to employees who resign, retire, or are fired).
The arbitrator also agreed that regular vacation leave (not in the grandfathered bank) also included the differential. He ordered the Hospital to make the Grievant whole and pay her the differential that it improperly withheld.
