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IA-28-94
In the Matter of the Interest Arbitration Between Gresham Police Officers Association and City of Gresham. IA-28-94 (Lieutenants Arbitration)
 
On November 27, 1995, an arbitration hearing was held in Gresham, Oregon, before arbitrator Kathryn Logan. At the hearing, the parties submitted evidence and examined witnesses. Post-hearing briefs were mailed by the parties on or before December 19, 1995. The Gresham Police Officers Association (Association) was represented by Daryl Garrettson, and the City of Gresham (City) was represented by Michael Snyder.
 
ISSUE
 
The issue, as framed by the arbitrator, is whether lieutenants should be entitled to callback compensation. The language at issue is as follows;
 
19.2 Callback
 
Callback is defined as hours worked after a length of time exceeding 59 minutes from the end of a scheduled shift. Employees shall he compensated for a minimum of three (3) hours of duty at the overtime rate when called back to duty and four (4) hours when called back an their regularly scheduled day off. Callback does not include overtime that is continuous with the beginning or end of an employee's shift, nor does it include situations in which returning to work is voluntary (e.g., reserve advisor, explorer scouts) or for division meetings and community policing meetings.
 
All official (Department) telephone calls to an off-duty employee during the employee's designated sleep period shall be considered a callback and the employees shall receive a minimum of one (1) hour at time and one half for each such call. Calls which direct an employee to physically report for duty or inquire as to the employee's availability for overtime shall not be subject to this provision. The designated sleep period for employees working day shift shall he 10 p.m. to 6 a.m.; swing shift shall be 2 a.m. to 10 a.m.; and graveyard shift shall be 10 a.m. to 6 p.m.
 
BACKGROUND
 
The Association filed a petition with the Employment Relations Board requesting that lieutenants be added to an existing bargaining unit composed of police officers, police and senior police technicians, criminalists and police sergeants. The City did not object to the petition and a consent election was held. The election resulted in the lieutenants being added to the existing bargaining unit.
 
The parties held two bargaining sessions and agreed that certain provisions of the existing agreement would not be applicable to lieutenants. The parties also agreed to specifically include lieutenants in the provisions of several articles of the agreement. The parties were unable to agree as to whether Article 19.2, Callback, should apply to lieutenants.
 
FACTS
 
The City has five lieutenants. One lieutenant, the Zone Support Commander, is in charge of traffic, the K-9 unit, crime prevention, the "YES" unit, the Tri-Met detail and the reserves and explorers. Another lieutenant, the Investigation Commander, is in charge of the detectives. The remaining three lieutenants are assigned as Zone Commanders for the West, East and Central Zones.
 
The Zone Commanders are responsible for their zone 24 hours a day. As part of their duties, they oversee patrol functions and criminal investigations and assure that necessary services are provided to the community. If the situation warrants, they respond to a crime or accident scene.
 
Until approximately November 1995, all lieutenants worked a day shift from 8:00 a.m. until 5:00 p.m. In November, the three Zone Commanders were assigned to work various rotating shifts. At the time of the hearing, Lt. West worked graveyard shift, Lt. Kelsay worked day shift and Lt. Walliker worked swing shift. The Zone Support Commander and the Investigation Commander remained assigned to day shift.
 
Excluding Lt. Walliker, who is in charge of the Special Emergency Response Team (SERT), each lieutenant has been called back approximately once a year. Lt. Walliker has been called back four to five times a year. Lts. Leary, Walliker and Piluso have received approximately eight phone calls per year. Lt. Kelsay has received approximately one phone call per month and Lt. Kalbasky has received approximately three phone calls per month.(1)
 
Lieutenants are eligible for overtime pay. For the rest of the bargaining unit, either callback pay or overtime pay is awarded depending on the situation. The two types of pay are not paid simultaneously.
 
CITY POSITION
 
The City contends that lieutenants, as part of their job description, must be able to respond 24 hours a day. Lieutenants are already compensated for this level of responsibility in their monthly salary. Therefore, according to the City, payment of callback in addition to the monthly salary would be compensating lieutenants twice for the same level of responsibility.
 
The City further argues that the granting of callback compensation would require an operational change. Specifically, the City would assign callback decisions regarding the lieutenants to the police captain because it would be inappropriate for lieutenants to call themselves back to work and increase their compensation.
 
ASSOCIATION POSITION
 
Initially, the Association contends that the City has the burden of proof in establishing that lieutenants should not receive callback pay because the City is trying to prevent lieutenants from having a benefit which is provided to other members of the same bargaining unit.
 
The Association claims that callback should be awarded to the lieutenants as a matter of "internal equity." In other words, the rest of the bargaining unit receives callback pay, and there is no reason to exclude lieutenants from also receiving such pay. The cost of the proposal is minimal as lieutenants are not called back frequently. Further, when lieutenants are called back, they usually work more than three hours. Therefore, they would not be paid callback compensation, but simply would be receiving overtime compensation.
 
OPINION
 
Burden of Proof
 
Traditionally, the party introducing a proposal has the burden of proof in establishing the need of such proposal, In this case, however, the Association claims that the City has the burden of proof because it wants to exclude the lieutenants from a benefit awarded to the rest of the bargaining unit. In other words, the Association agrees that callback is not currently a part of the agreement as far as lieutenants are concerned, but that because callback is given to other bargaining it members, the burden is upon the City to establish why a benefit given to others should not be given to lieutenants.
 
This argument is misplaced. The fact that employees are added to a bargaining unit for which a contract exists does not eliminate the collective bargaining obligation for the added employees. The parties could choose to bargain an entirely separate agreement for lieutenants. The fact that they have chosen to use the current contract as a framework for determining the wages, hours and other terms and conditions of employment for lieutenants does not shift the burden. The Association has the burden of proof in establishing that lieutenants should be awarded callback pay.
 
Callback pay
 
Callback pay is not compensation for hours worked. Rather, callback pay is a penalty payment.(2) The purpose of a callback pay provision in a collective bargaining agreement is to dissuade management from calling employees back to work during off-duty hours. A second purpose is to compensate employees for the disruption of being called back to work.
 
Currently, sergeants or other bargaining unit members generally call a lieutenant when they believe a situation warrants notification. See, General Order 1.06.03-3. The lieutenant then determines whether to respond to the call. Under such a scenario, a callback provision loses its purpose of penalizing management for calling an employee while off duty.
 
The second purpose also is not met by making lieutenants subject to callback pay. According to Lt. Piluso, all callbacks have resulted in the lieutenants working more than three hours. In those cases, overtime pay was utilized rather than callback pay. As for phone calls, most of the lieutenants have received 12 or fewer phone calls each year. Only Lt. Kalbasky has received more calls. The disruption to lieutenants as a group has been fairly minimal and does not warrant additional compensation.
 
It is reasonable to assume even less disruption will occur in the future. A zone commander now is assigned to each shift. Future calls will he made to the on duty zone commander, resulting in fewer telephone calls and callbacks.
 
The City argues that lieutenants are compensated for their callbacks in their base salary. Under the class specifications, a lieutenant is to monitor and respond to "requests for assistance to assure that services are provided to the community" and is to respond "to serious crime scenes, accidents, and other serious or sensitive incidents."(3) It is clear that lieutenants receive a greater income based upon a greater level of responsibility. That does not mean, however, that lieutenants work 24 hours a day. This arbitrator need not determine whether callbacks could increase to the point that the disruption to lieutenants necessitates callback pay. I only must decide whether callback pay is warranted under the current facts. I conclude it is not.
 
Statutory criteria
 
Pursuant to ORS 243.746(4), arbitrators shall:
 
[B]ase their findings and opinion on [the following] criteria giving first priority to paragraph (a) of this subsection and secondary priority to subsections (b) to (h) of this subsection . . .
 
(a) The interest and welfare of the public.
 
(b) The reasonable financial ability of the unit of government to meet the costs of the proposed contract . . .
 
(c) The ability of the unit of government to attract and retain qualified personnel at the wage and benefit levels provided.
 
(d) The overall compensation presently received by the employees. . . .
 
(e) Comparison of the overall compensation of other employees performing similar services with the same or other employees in comparable communities.
 
(f) The CPI-All Cities Index, commonly known as the cost of living.
 
(g) The stipulations of the parties.
 
(h) Such other factors, consistent with paragraphs (a) to (g) of this subsection as are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. However, the arbitrator shall not use such other factors, if in the judgment of the arbitrator, the factors in paragraphs (a) to (g) of this subsection provide sufficient evidence for an award.
 
Under the statutory criteria listed above, the interest and welfare of the public is not a determinative factor in this case. While the parties provided compensation information regarding other police departments, none of those departments awarded callback pay. It is also relevant that none of the named departments has lieutenants in the bargaining unit. More likely than not, those lieutenants are supervisors, which makes a comparison with Gresham lieutenants inappropriate.
 
The factors cited in ORS 243.746(4)(a) through (g) were not sufficient in themselves for rendering this award. In addition to those factors, this arbitrator applied ORS 243.746(4)(h) to the evidence presented in this case.
 
CONCLUSION
 
Article 19.2, Callback, shall not he applicable to the classification of Lieutenant.
 
DATED this 18th day of March, 1996.
 
Kathryn A. Logan, Arbitrator
 
For the City of Gresham: Michael Snyder
 
For the Gresham Police Officers Association: Daryl Garrettson
 
Footnotes:
 
1. Kelsay and Kalbasky were promoted to lieutenant in March 1995. As of the date of the hearing, they had been in their positions less than one year.
 
2. The Association agrees that callback is a penalty payment, See, Association Post- Hearing Brief, p.3.
 
3. This second duty is also listed in the police sergeant classification specification. The testimony at the hearing indicated that the sergeant performs this duty while on shift, while the zone commander is ultimately responsible for a 24 hour day.