Union Can Pursue Grievance Even On Behalf Of Unwilling Member

The contract between the City of Tacoma, Washington and the Tacoma Police Union calls for employees who work the swing shift or one of the night shifts (either the “John” shift or the graveyard shift) to receive a shift differential. In 2004, the Union learned that one of its members, Officer Bornander, was voluntarily working the graveyard shift due to manpower shortages and was not receiving a shift differential. The Union filed a grievance challenging the City’s decision not to pay shift differential to officers voluntarily working overtime shifts.

An arbitrator upheld the Union’s grievance. The Arbitrator reasoned that “the undisputed testimony of Union President Frantz, who was involved in the contract negotiations for the past five labor agreements, established that the Union proposed the shift differential language to address, among other things, the problem of officers who normally were assigned to the day shift but did not receive the shift differential when they volunteered for temporary overtime assignments on the swing shift or night shift. Based on the plain language of the contract and the undisputed bargaining history of the parties, the Arbitrator concludes that bargaining unit members who are assigned to or work any shift that begins with the swing shift or night shift hours are entitled to receive the applicable shift differential, regardless whether the swing or night shift worked was ‘voluntary’ or ‘assigned’ or whether the shift was a ‘temporary’ or ‘regular’ assignment. Nothing in the language of the contract restricts the shift differential to ‘regularly assigned’ swing or night shifts or excludes the shift differential where the employee has ‘volunteered’ to work a swing or night shift.”

The City also argued that the Union could not meet its burden of proof because Officer Bornander did not support the grievance. The Arbitrator rejected the argument, holding that “although Officer Bornander did not testify at the arbitration and there is evidence that he did not support the grievance, the contractual grievance procedure allows either the Union or an aggrieved employee to file a grievance, therefore the lack of support from Officer Bornander is immaterial.”

City of Tacoma, Washington, 124 LA 642 (Landau, 2007).

This article appears in the February 2008 issue