Matthew Lackey is an officer for the City and County of Denver Police Department. On Sunday, May 29, 2011, Lackey began his regularly scheduled shift at 4 p.m. and concluded that shift at 2 a.m. the following morning on Monday, May 30, 2011. In that year, May 30 was Memorial Day, a recognized holiday pursuant to Article 11.1 of the collective bargaining agreement between Denver and the Denver Police Protective Association and was also Lackey’s scheduled day off. Lackey worked for only two hours on May 30, 2011 to end his shift that had begun the previous day. He engaged in no work for the remainder of the May 30, 2011 calendar day.
The City compensated Lackey for the full work shift, for two hours of overtime for the hours actually worked on May 30, and for six hours of holiday compensation for the balance of the Memorial Day holiday that fell on Lackey’s day off. The Association took the position that the recognized Memorial Day holiday for officers who work a partial shift on that day mandated that they receive both holiday premium pay for time actually worked on the holiday and eight hours of holiday pay. When the dispute could not be resolved, a grievance filed by the Association was referred to arbitration.
That Arbitrator sustained the City’s position. The Arbitrator started with the general observation that “it appears that there is no lack of disputes regarding the pay and benefits relative to holiday, overtime, and comp time within the public safety sector, and in virtually every instance where there is no specific language addressing the unique problem presented, the Arbitrator must rely on past practice to discern what the Parties consider the intent of the existing language and how they have filled in the gaps in trying to apply inconsistent or nonexistent contract language.”
The Arbitrator noted that “the primary purpose of holiday pay provisions is to ensure the employee against the possible loss in earnings when he or she does not work because of a holiday occurring during the workweek. Many contracts explicitly, or by clear implication, include pay for holidays that fall on days when the employee would not have been scheduled to work, such as a regular day off or a Saturday.
“In looking at the specific language of Article 11, Lackey is clearly entitled to one and one-half times his base rate of pay for ‘any time’ actually worked on a holiday. The evidence is clear that the Grievant worked for two hours on a holiday and should be paid one and one-half times his base rate of pay for those hours actually worked. The ambiguity occurs in looking at the contract’s language which addresses the question of: ‘What should an officer be paid in holiday pay for the holiday that falls on his scheduled day off?’
“In that there is no guarantee of eight hours of pay for the holiday in the contract, as the language of the contract only indicates that the officer shall receive ‘pay for the holiday,’ I find that the language should be read in context with the rest of the holiday language in the contract, and thus would not result in an eight-hour payment in addition to and irrespective of any other pay for hours worked. In essence, the holiday pay is not an eight-hour bonus payment, but merely a payment intended to compensate an employee for work potentially missed because of the holiday. Lackey only missed six hours, not eight, and was paid for eight, two of which were paid at the overtime rate because he actually worked them.
“To avoid an absurd or unintended result, I must find that Lackey and all other similarly situated employees can receive no more than eight hours of pay and or work hours on a holiday. In other words, if the employee, instead of having worked the first two hours of the holiday and instead worked the last two hours of the holiday, the employee would still receive six hours of holiday pay and two hours at the premium time and one-half pay for work on the holiday. I find that this has been the practice, virtually without exception, and that to consider the holiday pay to be an eight-hour bonus, irrespective of work or non-work, not only conflicts with the current language of the contract, but would be in total contravention of the parties’ past practice, and indeed would be adding language to the collective bargaining agreement.”
City and County of Denver, 130 LA 837 (DiFalco, 2012).