"file:///C:From: Dan Huff
Sent: Wed Oct 11 14:16:04 2017
To: Greg Baxter
Cc: Adam Shultz; Gerald Fisher
Subject: Manipulation of Public Works Schedule
Importance: Normal
Greg – I wanted to give you some background here that you may or may not have. First, I want to state for the record that I do not agree that what we requested is a breach of contract. I also am concerned that I/we need to alter how we approach issues with the crew moving forward. My description is as follows:
The City received a request from the Chamber of Commerce to close Molalla Avenue from Main Street to Heintz Street as part of their annual trick-or-treat event. On October 4th, the Public Works Director met with the Maintenance Division as part of their monthly meeting and notified them of the request and that we would need to flex one person’s schedule to set up and take down barricades for the event. We also offered to assist if needed. The event is from 4:30 pm to 7:30 pm on Halloween. Halloween is not a Holiday. During that discussion a few members of the crew disagreed that management could flex the schedule and stated that only the on-call person could do that work and be paid overtime and call-in. They also stated that non-union members could not help because it would take away work from another employee who would benefit from the overtime. The Director told them he believed the contract said otherwise but we would review the language and get back to the union representative (Adam Shultz) as soon as possible. That same day Staff reviewed the language of the contract and confirmed, in our opinion, management rights to make a request for scheduling. The Public Works Director then sent the following e-mail to Adam Shultz:
Hi Adam,
Andy, Chaunee, and I have reviewed the contract language for Article 7 Hours of Work, Subsection 7.3 Work Schedule below.
7.3 Work Schedule: Works schedules showing the employee's work days and hours shall be posted on the department bulletin board. Except for emergency situations and for the duration of the emergency, changes in work schedules shall be posted seven (7} calendar days prior to the effective date of the change.
Any shift change that results in an employee being required to return to work at a time earlier or later than he would on his/her normal schedule, shall make that employee eligible for overtime for all hours worked outside his regular shift, if that employee was not notified of such shift change at least three (3) days prior to the change of shift. This would not apply, if such change was mutually agreed upon.
When making a shift change, the City shall arrange work schedules so the employee shall not work shifts more than eighty {80) hours in a fourteen (14) day period following the shift change except when an emergency requires overtime.
In accordance with the second paragraph, as long as the City notifies employees of a change in schedule at least 3 days prior to the change then no overtime is accrued. Additionally, since the day in question (Halloween) is not considered an ongoing schedule change that the 7 calendar days spelled out in paragraph 1 do not apply. I brought the need for a flexing of time to allow for the closure of Molalla Avenue for Halloween between 4:30 and 7:30 pm to the divisions attention to solicit volunteers for the shift change. As a courtesy, this would allow you to internally work out with each other who can work during that time since there may be some employees with small children who had planned on going out with them during trick-or-treat time. Please go over this with the other members and let me and Andy know by this time next week if someone would like to volunteer for the schedule adjustment that day. If you do not get a volunteer then let me know and we will assign someone to cover the City’s need. We will notify them in writing and CC you as the Shop Steward prior to the 3 day requirements. Thanks Adam and let me know if you have any questions.
Regards,
Gerald Fisher, P.E. | Public Works Director
City of Molalla
117 N Molalla Ave. | PO Box 248 |Molalla, OR 97038
Office: 503.829.6855 | Direct: 503.759.0218
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The contract language reads as follows:
ARTICLE 2- MANAGEMENT RIGHTS
2.1 The Union recognizes that the City retains all the customary, usual, and exclusive rights, decision-making prerogatives, functions, and authority connected with or in any way incident to its responsibility to manage the affairs of the city or any part of it. The rights of employees in the bargaining unit and the Union are limited to those specifically set forth in this agreement, and the City retains all prerogatives, functions, and rights not specifically limited by the terms of this agreement including but not limited to:
a) To determine the specific programs and services offered by the City and the methods, means, equipment and facilities by which they shall be effectuated.
b) To determine the size, nature and qualifications of the work force, to schedule employees, to assign duties and equipment, and to direct and evaluate employees, to assign duties and equipment, and to direct and evaluate the employees in the performance of their work assignments.
c) To develop work rules and operating procedures not inconsistent with this agreement.
d) To promote, transfer, layoff and to discipline, demote and discharge employees for just cause.
e) The Union is aware that due to the relatively small size of the City's work force and the limited amount of machinery and equipment possessed by the City, the City has historically subcontracted out some of its construction and maintenance work. The City and the Union agree that work of the general nature of that which has been subcontracted out in the past and any other work the subcontracting of which does not cause bargaining unit members to be laid off or to suffer a reduction in their regular hours of work, may be subcontracted out in the future with no obligation on the part of the City to bargain either the decision or the effect of such decision to subcontract Further, the Union recognizes that the City has the right to subcontract out work of a nature other than that historically subcontracted out, without obligation to first bargain the decision to subcontract out such work. However, in such event the City will have an obligation to bargain the effect of such a decision if served by the Union with a written request to do no later than fifteen (15) calendar days following implementation of the decision.
f) and any remaining rights provided for under ORS 243.650(7)(g).
ARTICLE 7-HOURS OF WORK
7.3 Work Schedule: Works schedules showing the employee's work days and hours shall be posted on the department bulletin board. Except for emergency situations and for the duration of the emergency, changes in work schedules shall be posted seven (7} calendar days prior to the effective date of the change.
Any shift change that results in an employee being required to return to work at a time earlier or later than he would on his/her normal schedule, shall make that employee eligible for overtime for all hours worked outside his regular shift, if that employee was not notified of such shift change at least three (3) days prior to the change of shift. This would not apply, if such change was mutually agreed upon.
When making a shift change, the City shall arrange work schedules so the employee shall not work shifts more than eighty {80) hours in a fourteen (14) day period following the shift change except when an emergency requires overtime.
I interpret the agreement to allow for this flexing of the schedule to be based on the following facts:
1. Management has the right to schedule work hours under Article 2.
2. The flexing of the schedule is not a permanent change to any employees schedule.
3. The flexing of the schedule is not on a City holiday.
4. The duties of the employee that is scheduled for Standby Time under Article 8 Section 8.6 is to respond to emergencies, alarms, and citizen concerns that need immediate attention and cannot wait until the following business day.
5. The contract appears to be very clear on management rights and scheduling of staff, regardless of historically the City paying for overtime. It appears that the City should not have been paying for overtime and you’ve directed me to follow the contract and to make corrections as needed if I identify any area where the contract is not being followed.
6. We notified the union (Maintenance Division staff) 27 days prior to the event to allow for volunteers and gave them a one week deadline to provide for volunteers. We notified them that if no volunteers came forward then we would assign to one of the employees.
To date, we had not received a response from Adam Shultz until your e-mail today. Your e-mail indicates to me that our relationship with our current Staff has altered and we will function differently in the future. I believe your members should have followed Article 23 but this does not seem to be the avenue they chose. Please let me know how you would like to proceed.
Dan Huff
City Manager
City of Molalla, Oregon
(503) 829-6855
dhuff@cityofmolalla.com
_______________________________________________________________________________
PUBLIC RECORDS LAW DISCLOSURE
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From: Dan Huff [mailto:dhuff@cityofmolalla.com]
Sent: Wednesday, October 11, 2017 8:57 AM
To: Greg Baxter <Baxter223@msn.com>
Cc: Gerald Fisher <gfisher@cityofmolalla.com>
Subject: RE: Manipulation of Public Works Schedule
Greg - I do not agree with the message that you seem to have received from your members. I will respond in more detail later.
Dan Huff
City Manager
City of Molalla, Oregon
(503) 829-6855
_______________________________________________________________________________
PUBLIC RECORDS LAW DISCLOSURE
This e-mail is a public record of the City of Molalla and is subject to public disclosure unless exempt from disclosure under Oregon Public Records Law. This e-mail is subject to State Retention Schedule
From: Greg Baxter [mailto:Baxter223@msn.com]
Sent: Wednesday, October 11, 2017 7:31 AM
Subject: Manipulation of Public Works Schedule
Dan –
It has been brought to the attention of the Union that the City intends to manipulate the work schedule on Halloween to avoid the payment of overtime. You were copied on a message from the department head to the shop steward.
Article 7.3 does not grant the department the authority to change work schedules in this manner. Historically, one day events such as Halloween have been dealt with on an overtime basis by the on duty crew, as needed. This is a clear attempt to circumvent the overtime provision of the collective bargaining agreement.
I want to make clear the intention of the Union – if the City proceeds with this, we will immediately claim a breach of the collective bargaining agreement and proceed with all remedies available.
Please confirm your receipt of this message.
Greg Baxter
IBT 223