Attorney Hykel Wins Travel Time For On-Call Hospital Workers Represented by 1199SEIU

A neutral arbitrator agreed with Attorney James Hykel and
1199SEIU United Health Care Workers East that on-call employees of Tobey Hospital are entitled to be paid from the time they are paged to report to work.

The collective bargaining agreement negotiated by 1199SEIU and Tobey Hospital provides, "[A]ny worker called in to the Hospital to work for such on-call status shall be paid [1.5] times his/her regular hourly rate of pay for all such hours worked (but in no event less than two
hours)." For more than 40 years, the Hospital paid on-call employees travel pay, meaning they were paid as if they were working from the moment the pager went off and obligated them to report to work.

The Hospital abruptly changed this practice in July 2015 in the midst of successor contract negotiations. Via email to employees, Tobey Hospital claimed it would no longer pay for travel time.

The Hospital did not dispute the longstanding practice of paying for travel time. Still, the Hospital defended the unilateral change by claiming the contract obliged it only to pay for “hours worked,” which excluded travel time. Tobey Hospital further contended that even though the manager responsible for payroll knew that travel time was compensated, the Hospital's higher-level managers did not. As such, the Hospital contended that it was not bound by a clear, undisputed and unequivocal past practice.

The Union grieved the denial of pay for travel time, by citing the language and the uninterrupted past practice. Plus, Tobey Hospital should not be permitted to eliminate an employee benefit without bringing it to the table for bargaining.

The Arbitrator upheld the grievance by relying principally on the contract language. He found that the contract’s reference to “hours worked” includes travel time. The arbitrator reasoned that an on-call employee who is receiving on-call pay is engaging in activities for the Hospital’s benefit as soon as the pager is activated. That employee must stop whatever he or she is doing and go to work. Accordingly, while there was a clear past practice that travel time was paid, it was not necessary to reach that issue because the Tobey Hospital violated the contract when it failed to pay travel pay. He directed the Hospital to restore the practice of paying on-call employees for travel time and to make all employees whole who lost monies as a result.