STATE OF NEW YORK PUBLIC EMPLOYMENT RELATIONS BOARD In the Matter of the Arbitration Between CITY OF SARATOGA SPRINGS, Employer, PERB CASE NO. 42022-071 ~and- CIVIL SERVICE EMPLOYEES ASSOCIATION, LOCAL 846 (CITY HALL UNIT), Employee Organization. Before: Deborah A. Sabin, Esq., Arbitrator vs ID AW: Appearances: GOLDBERGER & KREMER, (BRIAN S. KREMER, ESQ. of counsel) for Employer DARREN J. RYLEWICZ, ESQ., (ALEXANDRA MENGE, ESQ. of counsel) for Employee Organization L INTRODUCTION ‘The undersigned was duly designated as the Arbitrator pursuant to the selection of the Parties and in accordance with the procedures set forth in the collective bargaining agreement and the procedures of the New York State Public Employment Relations Board (PERB). A hearing was conducted by me on September 29, 2022, via Zoom. ‘Appearing before me was Brian S. Kremer, Esq., on bebalf of the City of Saratoga Springs (City), and Alexandra Menge, Esq., on behalf of the Civil Service EmployeesAssociation, Local 846 (City Hall Unit) (Union). The Parties were in all respects accorded a full and fair hearing, including the right to present oral argument, and oral and written evidence. Post-hearing briefs were filed by both parties on December 9, 2022.1 IL ISSUE ‘The issue, as defined by the Arbitrator, 1. Did the City violate Article 20 of the collective bargaining agreement, as alleged in the grievance? 2. Ifs0, what shall the remedy be? I. COLLECTIVE BARGAINING AGREEMENT RELEVANT PROVISIONS The relevant provisions of the January 1, 2017 December 31, 2024 collective bargaining agreement (CBA) between the City and Union are set forth below. Article 3, Collective Bargaining Unit, in relevant part, provides that: 3. ...full time employees hired on or after January 1, 2006, shall work 40 hours. All permanently employed employees who are hired before January 1, 2006, and are scheduled to work at least 33 hours per week, are ‘considered to be full time employees. Article 20, Work Day - Work Week, provides, in relevant part: All work performed beyond the normal work day must be authorized in advanced [sic] by the appointing authority, For all such hours worked in excess of the normal work day, FLSA non-exempt employees shall be ‘compensated at the straight-time rate or by compensatory time off up to forty (40) hours per week, and time and one-half (1%) as is applicable lunder the FLSA regulations for work in excess of forty (40) weekly hours. Article 22, Grievance Alll grievances shall be processed in accordance with the provisions set forth in Schedule A attached and made a part thereof, 1 CSEA’s brief was filed on December 9, 2022, via USPS and received on December 12. 2022. The City’s brief was filed electronically on December 9, 2022. The parties agreed that the arbitrator's award could be issued within 30 days from receipt of briefs.Schedule A, GRIEVANCE PROCEDURE, provides, in relevant part: STEP THREE, ‘The Parties agree that only grievances alleging a claimed violation, misinterpretation or inequitable application of the specific terms of this, Agreement shall proceed to arbitration. The Aggrieved Party may appeal an unsatisfactory decision at Step Two to Arbitration with the Public Employment Relations Board (PERB) in accordance with its rules and regulations within twenty (20) days of receipt of the Step Two decision or when the decision should have been received. The Arbitrator shall be chosen in accordance with the rules and regulations set forth by PERB. The decision arrived at shall be final and binding upon both parties to the Agreement, The fees and expenses of the Arbitrator shall be borne equally by the parties, The Arbitrator sball hold a hearing within twenty (20) days of being selected and shall render a decision within twenty (20) days after the hearing has been concluded. ‘The Arbitrator shall have no power to add to, subtract from or change any of the provisions of the Agreement, nor to render any decision with conflicts with a law, regulation or ordinance, Awards may not be retroactive beyond the date the grievance was filed or beyond the date the employee became aware of the grievance except when the grievance involves cash pay eared but not received. IV. BACKGROUND ‘The Union represents a unit of City employees in the City Hall Unit. The City Hall Unit includes the ttle of Secretary to the City Council. The current incumbent is Lisa Ribis, the grievant, Ms. Ribis was called by the Union to testify. Ms. Ribis testified that she was first employed by the City on January 31, 2005, as a Senior Account Clerk and thereafter ‘completed her probationary period to become a permanent employee. She is currently employed at City Hall as Secretary to the City Council, Her normal workweek is 33hours. She works on Monday from 7:30 a.m. to 3:00 p.m. and Tuesday through Friday, from 7:30 a.m. to 2:30 p.m. On the first and third Tuesday of each month, Ms. Ribis, acting as Secretary to the City Council, is required to take minutes at City Council ‘meetings in the evening. She must also attend any Special meetings of the City Council. ‘Ms. Ribis testified that prior to March 2022, pursuant to the CBA, she received either compensatory time or payment for hours she worked in excess of 33 hours per week. At that time, she had accrued over 200 hours of compensatory time, one week of ‘which she cashed in during July 2022, Ms. Ribis further testified that when she started in the position of Secretary to the City Council, she and the then Commissioner of Accounts hhad agreed that any hours she worked each week over her regular 33-hour work week, she would accrue as compensatory time and that she would use the time rather than seek @ cash payment so as not to affect the City’s budget. Her time sheets from this time reflect that hours in excess of 33 hours per week were credited as “comp time.” In 2020, Ms. Ribis testified, when scheduling and reporting changes were being made due to the Covid-19 pandemic, she was requested by Commissioner John Franck to flex any hours she accrued over 33 hours per week because of the City’s finances during the Covid-19 pandemic. She agreed to do so. Thereafter, once she had worked 33 hours in any given week (weeks during which there were City Council meetings), Ms. Ribis testified she would leave work early on Friday aftemoon, so as not to acerue more than 33 hours in a week. Her time sheets for the period of July 6, 2020 through October 8, 2021, reflect the extra hours worked at City Council meetings and that she utilized those extra hours as flex-time to enable her to Jeave work before 2:30 p.m. on Friday afternoons.‘Ms. Ribis further testified that when the City resumed “normal” operations after the Covid-19 pandemic, on or about October 8, 2021, she resumed marking as ‘compensatory time the time she worked cach week in excess of 33 hours, rather than utilize flex time to leave early on Thursday or Friday. Her timesheets from October 18, 2021 through March 4, 2022 indicate her accrual of compensatory time. In January 2022, jillon Moran became the Commissioner of Accounts and appointed Stacy Connors as the Deputy Commissioner of Accounts for the City. Ms. Ribis testified that she reached out to both individuals to discuss the accrual of compensatory time for hours worked in excess of 33 hours per week has she had done under the prior Commissioner, but that she received no response to her inquiries. ‘Therefore, Ms. Ribis continued to mark time worked in excess of 33 hours per work as compensatory time. Finally, Ms. Ribis testified that after working at a City Council meeting on March 15, 2022, she received an email dated March 16, 2022 from Deputy Commissioner ‘Connors stating that she and the Commissioner would not approve compensatory time off” for the hours worked at the City Council meeting and that any hours in excess of 33 hours that Ms, Ribis worked that week must be used as flex time. Further, Ms. Ribis was instructed that in any week in which she would be working more than 33 hours, she ‘would have to end her work week when she reached 33 hours worked that week. Her worksheets in evidence demonstrate that she did so from March 15, 2022 through‘September 23, 2022. Thereafter, the grievance at issue in this arbitration was filed by the Union on Ms. Ribis’s behalf? The City called Stacy Connors to testify. Ms. Connors has been the Deputy Commissioner of Accounts since December 14, 2021and was reappointed by Dylan Moran when he took office as Commissioner of Accounts on January 1, 2022. As Deputy Commissioner, Ms. Connors manages the Accounts Department, which includes the City Clerk, Purchasing Agent, Investments and City Council. She testified that she supervises Ms. Ribis as an employee of the Accounts Department and in her capacity as Secretary to the City Council. As Secretary to the City Council. Ms. Ribis is required to attend all meetings of the City Council, which are scheduled for the first and third Tuesday of each month, The meetings begin at 7:00 p.m., unless there is a public hearing which begins at 6:30 pam. The moctings may last unti! 10:00 or 11:00 p.m. Ms. Ribis is responsible for taking minutes of each meeting, the protocol of the meeting and following-up on all actions of the Council. Ms. Connors testified that Ms, Ribis isa full-time employce with a 33-hour ‘workweek. She further testified that she became aware in March 2022 that Ms. Ribis was accruing compensatory time for hours worked over 33 hours in a week; specifically, the weeks that she attended City Council meetings. Ms. Connors testified that she reached out to the City’s Human Resources office to discuss this use of compensatory time, She testified that she was informed that the acerual of compensatory time must be pre- approved and that Ms. Ribis’s extra hours from attendance at City Council meetings must 2 The Demand for Arbitration also alleges that the City had directed Ms. Ribis to ‘mainjsic] her desk at City Council meetings. While this statement could be construed as a separate allegation, no evidence was produced at the hearing regarding this part of the case and no argument is support of it was included in CSEA’s brief.be used as flex-time. As a result, Ms. Connors sent an ¢-mail to Ms. Ribis on March 16, 2022, directing her to use the hours in excess of 33 hours per week as flex-time. ‘Ms. Connors further testified that she may have had a conversation with Ms. Ribis, prior to the March 16, 2022 e-mail, but she couldn’t recall. Since the email, Ms, Ribis has ‘complied with Ms. Connors directive and uses the extra hours worked on City Council ‘meeting weeks to leave early on Thursday or Friday of that week, whichever she chooses. ‘Ms. Connors further testified that the Accounts Department has a limited budget for overtime and that Ms. Ribis had made only one request for payment for compensatory time in 2022, in the amount of approximately $200.00. Ms. Connors finally testified, on cross-examination, that she had reviewed the CBA, had consulted with Human Resources and understood the CBA to provide that hours worked in excess of a full-time employee's workday are subject to compensatory time or compensatory pay. She concurred that Ms. Ribis's regular workday is 7:30 a.m. to 3:00 p.m. V. ARGUMENTS A. EMPLOYEE ORGANIZATION’S POSITION ‘The Union argues that this is a case of contract interpretation and that the arbitrator's authority is limited to interpretation of the bargained-for agreement. ‘The Union argues that the express language of the CBA entitles Ms, Ribis to either ‘compensation at the straight-time rate or compensatory time-off up to 40 hours per week for extra hours worked at City Council meetings. The Union further argues that Article 20 of the CBA only requires that the “work performed beyond the normal work day must be authorized in advanced [sic] by theappointing authority.” The Union argues that the City errs it ‘must request accruing the time she works at City Council meetings as compensatory time. its position that Ms. Ribis ‘The CBA clearly provides that once the City has authorized the work in question, which it has done by requiring Ms. Ribis to attend City Council meetings to take the minutes, Ms. Ribis is entitled by Article 20 to compensatory pay or time for those hours worked in excess of her normal workday. The Union finally argues that Ms. Ribis’s agreement to the then Commissioner's request that she would utilize those hours worked beyond her 33-hour workweek as flex- time during the Covid-19 pandemic, was her choice to make to help the City during a difficult time. Her actions during the pandemic do not give the City the right under Article 20 of the CBS to force Ms, Ribis to utilize the hours worked in excess of her 33- hour work week as flex time, now that the City has retumed to normal operation. The Union argues that language of the CBA is clear and unambiguous as to the meaning of Article 20. B. EMPLOYER'S POSITION ‘The City argues that the arbitrator must decide whether the CBA gives Ms. Ribis the right to accrue “compensatory time” for attending City Council meetings approximately two evenings a month. A decision on this issue, the City argues, requires a determination of Ms, Ribis’s “normal work day.” The City argues that while Article 20 of the CBA requires the City to compensate FLSA non-exempt employces, like Ms. Ribis, working in excess of their normal work day at a straight time rate or by compensatory time off up to 40 hours per week, the CBA, does not establish a standard of “normal” work day. The City argues that the CBA grants‘each department head the authority to set the normal work day for employees in their department, limited only by the maximum number of hours per day the employee can work, based upon their date of hire, The City, therefore, argues that Ms. Ribis's work day was set by Commissioner Franck as being 7:30 a.m. to 2:30 p.m. and 7:00 p.m. to 10:00 p.m. on the first and second Tuesday of each month, with her work day on the Friday following a City Council meeting reduced by the number of hours worked at the City Council meeting, through the utilization of flex time, The City argues that Ms. Ribis, having worked this schedule for almost two years without complaint or grievance, cannot now unilaterally claim compensatory time for the hours she works at City Council meetings. Finally, the City argues that should the arbitrator uphold the grievance, relief should be prospective only because, since March 16, 2022, Ms. Ribis has accrued no compensatory time, having “flexed” hours worked at the City Council meetings. VI. DISCUSSION “Probably no function of the labor arbitrator is more important than that of interpreting the collective bargaining agreement.” If the contract language is clear and the meaning unambiguous, the arbitrator may decide the matter based upon the simple language of the contract and the facts upon which the meaning of the language depends. Here, the center of the dispute is the meaning of Article 20 of the parties’ current collective bargaining agreement. Article 20, Work Day - Work Week, provides, in relevant part that: All work performed beyond the normal work day must be authorized in advanced [sic] by the appointing authority. For all such hours worked in 3 Elkouri & Elkouri, How Arbitration Works, Fifth Edition, p.470,10 ‘excess of the normal work day, FLSA non-exempt employees shall be ‘compensated at the straight-time rate or by compensatory time off up to forty (40) hours per week, and time and one-half (I 4) as is applicable under the FLSA regulations for work in excess of forty (40) weekly hours. ‘The language of Article 20 clearly sets forth the circumstances under which an employee is entitled to compensatory pay or compensatory time. There is no ambiguity in the language and therefore, it appears that there is no need for intrinsic evidence to aid in interpreting the language. “The sources of contract interpretation include the language of the contract and, to the extent it is ambiguous, bargaining history and past practice.™ First, the parties do not dispute that Ms, Ribis is an FLSA non-exempt employee covered by Article 20 of the CBA. Therefore, she is entitled by the terms of Article 20 to ‘compensatory pay at the straight-time rate or compensatory time off up to forty (40) hours per week for work in excess of her normal work day. The single requirement of the entitlement to compensatory pay or time is that the work performed beyond the normal work day must receive prior approval. Further, Ms, Ribis testified that her work day is 7:30 a.m. to 3:00 p.m. on Monday ‘and from 7:30 a.m. to 2:30 p.m. on Tuesday through Friday. Her time sheets in evidence ‘confirm that these are her regular hours, on days that the City Council does not meet. Additionally, Ms. Connors concurred on cross-examination, that Ms. Ribis’s regular workday is 7:30 a.m, to 2:30-3:00 p.m. ‘There is likewise no dispute that Ms. Ribis, by the terms of the job description for Secretary to the City Council, is not only authorized but required to attend City Couneil meetings to take the minutes of said meetings and perform related tasks. Such duties ‘ Elkouri & Elkouri, How Arbitration Works, Fifth Edition, p.471, citing Downington School Dist., 88 LA 59, 61 (Zirkel, 1986).1 assigned by the City require Ms. Ribis to be at work outside her normal work day on the first and third Tuesday of each week. Therefore, under the specific terms of Article 20, Ms. Ribis is entitled to compensatory pay or compensatory time for the hours she works at City Council meetings, since those hours are in excess of her normal work day. But the City disputes that Article 20, in and of itself, gives Ms. Ribis the rights the Union claims. The City points to the contractual right of department heads to set the “normal workday” for each of their employees, subject only to the maximum number of hours an employee may be required to work based upon their date of hire. The City argues that for the last two years. Ms. Ribis’s workday has been 7.5 hours on Monday, with a half-hour lunch break, and 7.0 hours from Tuesday to Friday, with a half hour Junch break, on weeks there is no City Council meeting. On weeks which included a City Council meeting, Ms. Ribis worked 9.0-10.0 hours on Tuesday, but worked only 4-5 hours on the following Friday. The City, therefore, argues that Ms. Ribis’s “normal work day” on Tuesday and Friday depends on whether there is a City Council meeting, However, both the time sheets in evidence and testimony by Ms. Riis and Ms. Connors show that Ms. Ribis “normal workday” was 7.0 hours on Tuesdays. ‘The City further argues that Ms. Ribis’s “normal work day,” as that phrase is used in Article 20, changes based upon the circumstances. The City relies upon Ms. Ribis’s schedule over the past two years (2020 and 2021), when Ms. Ribis did not accrue ‘compensatory time but instead “flexed” her time to leave early on Thursdays or Fridays so that she did not work in excess of 33 hours in weeks in which she attended a City Council meeting. Because she acquiesced in this practice as requested by Commissioner12 Franck, the City argues that Ms. Ribis cannot now be permitted to change her “normal work day” simply because a new Commissioner of Accounts was elected. The City’s argument fails on two relevant points. First, Ms. Ribis’s ‘uncontroverted testimony and her time sheets establish that before the Covid-19 pandemic, Ms. Ribis accrued compensatory time each week there was a City Council ‘meeting that required her to work in excess of her normal 33-hour workweek, She had agreed with the Commissioner at the time she became Secretary to the City Couneil that she would not seek compensatory pay for the hours worked at City Council meetings so as not to adversely affect the City’s budget. Therefore, she accrued over 200 hours of ‘compensatory time during those years, The record evidence is that at until early 2020, Ms. Ribis’s “normal work day” on Tuesday did not include hours spent taking minutes at City Council meetings on Tuesday nights. Second, Mrs. Ribis's uncontroverted testimony is that Commissioner Franck requested she no longer accrue compensatory time during the Covid-19 pandemic because of the effect on the City’s budget. He requested, and she agreed, to flex her schedule to use the hours she worked over her “normal workday” on the Tuesday evenings she attended City Council meetings. She used the “flex” time to leave work arly on Thursday or Friday in the same week. Ms. Ribis continued to honor Commissioner Franck’s request until the City resumed “normal” operations sometime in October 2021. This was three months before the Commissioner Moran took office I do not find that Ms. Ril 's agreement to Commissioner Franck’s request that she cease accruing compensatory time during the Covid-19 pandemic established a Practice that changes the meaning of the language of Article 20. One instance cannot13 establish a viable past practice. It is generally accepted that for a matter to be given the effect of a binding past practice, it must be unequivocal, clearly enunciated and acted ‘upon and readily ascertainable over a reasonable period of time.' The record shows that during a time of budget concems brought about by the Covid-19 pandemic, Ms. Ribis agreed to a request from the Commissioner of Accounts that she flex the time she worked in excess of her normal work day on City Council meeting days, rather than accrue ‘compensatory time... Once the City returned to normal operations in October 2021, Ms. Ribis returned to the method set forth in Article 20 for designating time worked in excess of her normal work day on days she worked at City Council meetings. Without objection from the City, Ms. Ribis listed the hours as compensatory time on her weekly timesheets, for almost six months, until she received the March 16, 2022 email telling her she could not. Finally, the City points to no contractual language that allows it to require employees to “flex” their schedules that contradicts the City’s contractual obligation set forth in Article 20 to pay full-time employees compensatory pay or allow the accrual of compensatory time, 1, therefore, find and conclude, that the City violated Article 20 of the current collective bargaining agreement when it directed Lisa Ribis on March 16, 2022, to cease accruing compensatory time for the hours she worked in excess of 33 hours in a week she § Elkouri & Elkouri, How Arbitration Works, Fifth Edition, p.632. See also County of Nassau, 24 PERB $3029 (1991).4 ‘was required to attend a City Council meeting and, instead, to flex her schedule to use those excess hours in the week in which they were eamed. VIL AWARD (On the basis of the foregoing, I find and conclude that the contract grievance in ‘A2022-071 is sustained. I find and conclude that the City violated Article 20 of the CBA when it issued the March 16, 2022 email to Lisa Ribis stating that it would not approve compensatory time for hours worked on March 15, 2022, at the City Couneil meeting, {also find and conclude that the City shall rescind the March 16, 2022 email and ‘cease requiring Lisa Ribis to “flex” the hours she works at City Couneil meetings so as 10 ‘maintain her 33-hour work week. | further find that, from the date of this Opinion and Award, the City will, pursuant to Article 20of the collective bargaining agrecment, compensate Lisa Ribis at the straight-time rate or with compensatory time for any hours worked in excess of 33 hours per week, due to her attendance at City Council meetings. Dated: January 9, 2023 Clifton Park, NY AFFIRMATION I, Deborah A. Sabin, do hereby affirm upon my oath as Arbitrator, that I am the individual described herein and who executed this instrument, which is my Award. Deborah A. Sabin, Esq. Dated: January 9, 2023 ‘Clifton Park, NYCSE Local 1000, AFSCME, AFL-CIO GRIEVANCE FORM Name: Lisa Ribis ins Job Title: Secretary to the City Council Name of Supervisor: Deputy Commissioner Stacy Connors STEP 1 Contract Articles violated or involved: Including but not limited to Article XX Work Day ~ Work Week Date of Occurrence: On or about July 5, July 19 and July 20, 2022 STATEMENT OF FACTS (include names, dates, what happened): On or about February 15, 2022, I was in a meeting with Commissioner Dillon C. Moran and Deputy Stacy Connors regarding my duties as the Secretary to City Council. He directed me to remain at my desk during Council meetings until further notice. | followed his directive and remained at my desk during the City Council meeting on July 5 and July 19, 2022. On April 15, 2022, | received an email from Deputy Commissioner Stacy Connors stating from that date forward | will not be approved for comp time or straight time as a result of City Council meetings and had to flex the time in the same week. Also on July 20, 2022 | was not granted comp time or straight time for a staff meeting that started late at 2:15pm and ran till approximately 3:00pm. My normal workday ends at 2:30pm. As a result of this, | was told to flex my time in the same week. The City violated Article XX of the contract by refusing to grant me compensation time or pay for the work I performed beyond my normal workday on July 5, July 19 and July 20, 2022. Remedy Sought: To be made whole in every way. Date Submited: 7/92 jg. Grievant's SignatiGe: en KhCSE Local 1000, AFSCME, AFL-CIO GRIEVANCE FORM Name: Lisa Ribis Job Title: Secretary to the City Council STEP 1 Contract Articles violated or involved: Including but not limited to Article XX Work Day ~ Work Week Date of Occurrence: On or about October 6 and October 18, 2022 STATEMENT OF FACTS (include names, dates, what happened): On or about February 15, 2022, | was in a meeting with Commissioner Dillon C. Moran and Deputy Stacy Connors regarding my duties as the Secretary to City Council. He directed me to remain at my desk during Council meetings until further notice. On September 19, 2022, | was asked by Commissioner Moran to be present in the council room for the September 20, 2022 City Council meeting and have been in the council room since. On April 15, 2022, | received an email from Deputy Commissioner Stacy Connors stating from that date forward | will not be approved for comp time or straight time as a result of City Council meetings and had to flex the time in the same week. The City violated Article XX of the contract by refusing to grant me compensation time or pay for the work I performed beyond my normal workday on October 6 and October 18, 2022. Remedy Sought: To be made whole in every way. vate swmies: (1/4/2025. tant sigs