In the Matter of the Arbitration )

)

between )

)

THE UNITED STAFF NURSES UNION )

UNITED FOOD AND COMMERCIAL )

WORKERS, LOCAL NO. 141 )

(Union) ) OPINION AND AWARD

) GRIEVANCES OF DAWN

) CUTLER AND DAN HALSEY

And ) FMCS #060807-58589-7

)

PROVIDENCE ST. PETER HOSPITAL )

(Employer) )

BEFORE: Kathryn T. Whalen, Arbitrator

APPEARANCES: For the Union:

James G. McGuinness

Attorney at Law

Suite 304

31620 23rd Avenue South

Federal Way, WA 98003

For the Employer:

Paula L. Lehmann

Kelsey M. Sheldon

Davis Wright Tremaine LLP

777 108th Avenue NE, Suite 2300

Bellevue, WA 98004

HEARING: November 1, 2, 5, and 6, 2007

January 29, 30 and 31, 2008

RECORD CLOSED: May 18, 2008

AWARD ISSUED: July 24, 2008

I. INTRODUCTION

This dispute concerns the interpretation of the meal and rest period

provisions of the 2004-2007 Collective Bargaining Agreement between Providence

St. Peter Hospital (Hospital or Employer) and The United Staff Nurses Union, Local

141 UFCW (Union or Local 141). In March of 2006, Registered Nurse Dawn Cutler

filed a grievance on behalf of herself and all affected registered nurses of the

Union’s bargaining unit alleging that the Employer was not affording nurses meal

and rest breaks as required by the Agreement. On or about November 27, 2006,

Registered Nurse Dan Halsey also filed a grievance claiming the Hospital was not

providing rest periods consistent with the Agreement. The Hospital denied the

grievances. The Union submitted the grievances to arbitration.

Hearings were held over the course of seven days during November 2007

and January 2008. Both parties were accorded a full opportunity to present

evidence and argument in support of their respective positions. The proceedings

were transcribed by a court reporter. The parties agreed that there were no issues

of arbitrability before the Arbitrator. They also agreed that should the Arbitrator

sustain the grievances, she may retain jurisdiction for a period of ninety (90) days to

resolve issues, if any, regarding the remedy awarded.

The parties elected to file post-hearing briefs which were mailed to the

Arbitrator on May 2, 2008. The parties agreed to file reply briefs that were mailed to

the Arbitrator on May 16, 2008. The Arbitrator officially closed the record upon

receipt of the reply briefs on May 18, 2008. The parties agreed the Arbitrator could

have until July 24, 2008 to issue her decision.

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II. STATEMENT OF THE ISSUES

The parties were unable to agree on a statement of the issues. They

agreed the Arbitrator may frame the issues based upon the submissions and

evidence presented.

The Union states the issues as:

1. Whether the Employer violated the Parties’ Agreement by failing

to provide nurses with meal period(s) as required by the Agreement

or to properly compensate them for such time? If so, what it is the

appropriate remedy?

2. Whether the Employer violated the Parties’ Agreement by failing

to provide nurses with rest periods as required by the Agreement?

If so, what is the appropriate remedy?

The Employer submits the issues as follows:

(1) Does Article 7.5 of the Collective Bargaining Agreement

between Providence St. Peter Hospital and the Union permit rest

breaks to be taken as either block breaks or as intermittent breaks,

as provided for in Washington state law?

(2) To the extent that nurses have missed a block or intermittent

break, or a meal period, have they been appropriately

compensated?

(3) If not, what is the appropriate remedy?

The Arbitrator determines the issues are:

Did the Hospital violate the meal and rest period provisions of the

parties’ Collective Bargaining Agreement?

If so, what is the appropriate remedy?

III. RELEVANT CONTRACT PROVISIONS

ARTICLE 7 – HOURS OF WORK AND OVERTIME

7.5 Meal/Rest Periods. All nurses shall receive an unpaid meal

period of one-half (1/2) hour. Nurses required to remain on duty or

return to their nursing unit to perform nursing duties during their

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meal period shall be compensated for such time at the appropriate

rate of pay. All nurses shall be allowed two (2) paid rest periods of

fifteen (15) minutes each during each shift of eight (8) hours or

more in duration. The application of this section shall be consistent

with state law.

ADDENDUM 1

PROVIDENCE ST. PETER HOSPITAL

TWELVE (12) HOUR WEEKEND SHIFT SCHEDULE

In accordance with Section 7.3 of the Agreement between

the Hospital and the Union, nurses may, on an individual basis,

agree to work a twelve (12) hour weekend shift schedule with the

consent of the Employer. All existing contractual provisions apply

unless otherwise provided for herein.

1. Work Day. The twelve (12) hour weekend shift schedule

shall provide for a twelve (12) hour work day consisting of either

thirteen (13) consecutive hours with two (2) thirty (30) minute

unpaid meal periods, or, if mutually agreeable to the Hospital and

nurse, twelve and one-half (12 ½) consecutive hours with one (1)

thirty (30) minute unpaid meal period. The shift start times shall be

determined by the Employer. The nurse on duty will be expected to

remain on the unit until-the nurse’s twelve (12) hour partner has

arrived and received report. The nurse shall be allowed two fifteen

(15) minute rest periods, one fifteen (15) minute period to be taken

during each half of the shift.

ADDENDUM 2

PROVIDENCE ST. PETER HOSPITAL

SIXTEEN (16) HOUR WEEKEND SHIFT SCHEDULE

In accordance with Section 7.3 of the Agreement between

the Hospital and the Union, nurses may, on an individual basis,

agree to work a sixteen (16) hour weekend shift schedule with the

consent of the Employer. All existing contractual provisions apply

unless otherwise provided for herein.

1. Work Day. The sixteen (16) hour weekend shift schedule

shall provide for a sixteen (16) hour work day consisting of (17)

hours to include two (2) thirty (30) minute unpaid meal periods.

Shift start times shall be determined by the Employer. The nurse

shall be allowed three fifteen (15) minute rest periods to be taken in

accordance with state law. The weekend is defined as Saturday

and Sunday.

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ADDENDUM 3

PROVIDENCE ST. PETER HOSPITAL

TWELVE (12) HOUR SHIFT SCHEDULE

In accordance with Section 7.3 of the Agreement between

the Hospital and the Union, nurses may, on an individual basis,

agree to work a twelve (12) hour shift schedule with the consent of

the Employer. All existing contractual provisions apply unless

otherwise provided for herein.

1. Work Day. The twelve (12) hour shift schedule shall provide

for a twelve (12) hour work day consisting of either thirteen (13)

consecutive hours with two (2) thirty (30) minute unpaid meal

periods, or, if mutually agreeable to the Hospital and the nurse,

twelve and one-half (12 ½) consecutive hours with one (1) thirty

(30) minute unpaid meal period. Shift start times shall be

determined by the Employer. The nurse on duty will be expected to

remain on the unit until the nurse’s-twelve (12) hour partner has

arrived and received report. The nurse shall be allowed two fifteen

(15) minute rest periods, one fifteen (15) minute period to be taken

during each half of the shift.

ARTICLE 15 – COMMITTEES

15.1 Conference Committee. The Employer, jointly with the

elected representative of the staff nurses shall establish a

Conference Committee as an advisory body to assist with nursing

service problems. The committee shall meet on a monthly basis,

as necessary. The committee shall consist of three (3)

management representatives and three (3) bargaining unit

representatives. In addition to the nurses, a Union Representative

may attend and participate.

15.1.1 Staffing concerns. If a nurse reports to work and

perceives a problem with the level of staffing allocated for his/her

Patient Care assignment on the unit, the nurse will notify his/her

immediate supervision (charge nurse in consultation with the

Manager, the Manager, or the house supervisor) of the staffing

problem. If appropriate, the nurse may also contact the staffing

office for assistance. Staffing and workload issues should be

addressed promptly with supervisors at the time of occurrence and

may be resolved through such resources like adjustments in

assignments, the use of other staffing resources (such as nurses

from the per diem staff, float staff from similar services, agency

nurses) adjustments to work loads, adjustments to work schedules,

or other resources.

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If the nurse remains dissatisfied with the supervisor’s

responses to the staffing problem, the nurse may request to speak

with the administrator on call to discuss the staffing problem and

review additional options which may include closing the unit to

further admissions and the reallocation of certain patients.

A nurse who remains dissatisfied after having taken

the foregoing steps may fill out a “Staffing Assignment Report”

form, and submit copies of this form to the manager, the Assistant

Administrator for Patient Care Services and the Union. Where this

form is used, the parties will ensure that patient confidentiality

standards are fully met. The Conference Committee shall give a

written recommendation regarding the staffing problem to Nursing

Administration within thirty (30) days with a copy of the

recommendation being sent to the nurse. Nurses who raise staffing

issues shall be free from restraint, interference, discrimination or

reprisal.

Matters arising under this section shall not be subject

to the Grievance Procedure unless the staffing/patient care issue

involves an alleged violation of another provision of this Agreement.

In such case, the provision allegedly violated will be the subject of

the grievance.

***

LETTER OF UNDERSTANDING

***

Meal/Rest Periods.

The Hospital and the Union are committed to ensuring

nurses have access to breaks and meal periods. In the event that a

nurse has a concern about the inability to take breaks and/or meal

periods, the nurse should communicate this concern to the

immediate supervisor. If the problem continues unaddressed, the

nurse can forward their concern to the Conference Committee.

ARTICLE 16 – GRIEVANCE PROCEDURE

16.1 Grievance Defined, A grievance is defined as an

alleged violation by the Employer of the terms and conditions of this

Agreement. If a grievance arises, the nurse shall utilize the

following grievance procedure. * * *

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Step 4: Arbitration

* * * The arbitrator shall have no authority to add to, subtract from

or otherwise change or modify the provisions of this Agreement as

they may apply to the specific facts of the issue in dispute. Each

party shall bear one-half (1/2) of the fee of the arbitrator and any

other expenses jointly incurred incidental to the arbitration hearing.

***

ARTICLE 17 – MANAGEMENT RESPONSIBILITIES

The Union recognizes that the Employer has the obligation

of serving the public with the highest quality of medical care,

efficiently and economically, and/or meeting medical emergencies.

The Union further recognizes the right of the Employer to operate

and manage the hospital including but not limited to the right * * *

to determine staffing requirements * * *.

Joint Exhibit (Ex.) 1.

OPINION

IV. FACTUAL BACKGROUND

The Hospital is a full service hospital for the Olympia community. It

provides acute care inpatient emergency, medical and surgical services as well

as outpatient services. The Hospital is licensed for 360 beds. It employs about

2400 employees, of which 600-700 are registered nurses. The Union is the

exclusive bargaining representative of all full-time, part-time and per diem

registered nurses (charge and staff nurses) employed by the Hospital.

The Hospital provides its services through a variety of units that exist on a

multi-floor building which is commonly referred to as the Tower Building.

Employer Ex. 1. There are inpatient units for critical care, surgery, labor and

delivery, special care nursery, pediatric, oncology, orthopedic, medical-renal,

telemetry, psychiatric, and rehabilitation. The Hospital also provides emergency

services and a variety of outpatient services.

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Staffing of each unit typically consists of a director, one or more clinical

managers, charge nurses and staff (registered) nurses. There is a housing

supervisor on duty for 24 hours a day, seven days a week. At night, managers

typically are not on duty, so the housing supervisor is the “face” of administration

and is responsible for the general oversight of the Hospital. The Hospital

employs other personnel that are available on some units and/or shifts, for

example: business partners, now referred to as health unit coordinators (HUCs),

certified nursing assistants (CNAs), and patient care providers (PCPs) (nurse

aides).

Staff scheduling is done by month but is updated and adjusted daily by

shift. Scheduling is not static at the Hospital, but constantly changing. Employer

Ex. 5. The Hospital reassesses staffing quarterly to adjust core staffing to

changes in census.

The Hospital uses an electronic staffing and scheduling system called

Nightingale. All inpatient services as well as the emergency department and

rehabilitation use this system. At the time of hearing, Nightingale had been in

effect for about two and one-half years. Prior to that time, the process was done

by individual paper and pencil. Now it is much easier for the Hospital to make

adjustments and information can be rolled together to show a big picture of

staffing that can be seen in real time. If someone cannot come in to work;

adjustments can be made. Nurses can see the schedules on the computer and

sign up for shifts.

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Depending on the unit, nurses are scheduled for day, evening or night

shifts. Shift duration varies from eight, ten, to twelve hours. The parties’

Agreement also allows sixteen-hour weekend shifts.

The Hospital has long used a form called a “missed punch form” for

reporting and tracking nurses’ work hours. Nurses typically fill out these forms by

hand at the end of their shifts and turn them in to unit timekeepers or managers.

The information on the form is entered into the Hospital’s electronic timekeeping

system, which is a KRONOS system. KRONOS “feeds” or interfaces with the

Hospital’s payroll system. The KRONOS system was revised and updated in late

June of 2006. Missed punch forms and KRONOS will be addressed later in this

decision as these timekeeping tools bear upon recordkeeping of meal and rest

periods.

V. THIS DISPUTE

A. Overview

A brief summary of the grievances and this dispute are provided below.

Specific contentions of the parties will be addressed in more detail later in this

decision.

Grievant Dawn Cutler (Cutler) is a registered nurse in the Family Birth

Center. The Family Birth Center is a combination of units which consist of labor

and delivery, special care nursery, partum and postpartum. Cutler has worked for

the Hospital for 23 years.

On March 23, 2006 Cutler filed a grievance on behalf of herself and all

affected nurses in the bargaining unit alleging that the Hospital had failed to

9

provide nurses with meals and rest breaks as required by the parties’ Agreement

and applicable state regulations. The Hospital denied the grievance throughout

the steps of the grievance procedure. Joint Ex. 2.

Cutler’s grievance claims nurses are unable to have uninterrupted breaks.

Nurses carry phones and are responsible to answer patient calls; are unable to

leave units due to concerns for patient safety; fetal monitors are in the break

rooms and nurses watch them on breaks; and the Hospital has no regular,

standard procedure to assure for uninterrupted meal and rest breaks. Cutler’s

grievance also alleges the Hospital is not meeting the required standards for

breaks and that staff are discouraged from requesting pay for meal or rest

periods when missed. The grievance further asserts that there is an environment

of intimidation in which nurses are discouraged from taking meal and rest breaks

unless patients do not need anything and that nurses are required to take unsafe

patient loads in order to obtain meal and rest periods. Joint Ex. 2.

In denying Cutler’s grievance, the Hospital responded that the Agreement

gives the Hospital the right how to determine meal and rest periods. Rest and

meal periods are administered differently in different units, but the Hospital

believes every unit is in compliance with the contract and applicable regulations.

Nurses have been properly compensated when meal periods were interrupted or

missed. Rest periods may be taken intermittently or in blocks and if they are

missed they should be reported so that the nurse can be paid. Joint Ex. 2

Dan Halsey (Halsey) is a registered nurse who works in the emergency

department. He has worked for the Hospital since 1993. On November 27,

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2006, Halsey filed a grievance that alleged nurses are frequently missing breaks,

particularly fifteen (15) minute rest breaks. The system for taking breaks is

cumbersome and nurses fear reprisal for reporting missed rest breaks. Halsey

claimed there is no formalized record for verifying that breaks have occurred; the

missed punch form has a missed meal column but no missed break column.

Joint Ex. 3.

The Hospital denied Halsey’s grievance. The Hospital agreed that all

registered nurses should receive meal and rest periods in compliance with

contractual and statutory obligations. The Hospital responded that the Agreement

and state law allow rest periods of 15 minutes which may be taken in blocks or

intermittently; the Hospital could see no violation of the Agreement or state law in

its system for rest periods. Joint Ex. 3.

Throughout the course of these proceedings there were focus areas of

dispute between the parties. One area of overriding importance is the question of

whether or not the contract allows for 15-minute rest periods to be taken in small

increments, i.e. on an intermittent basis.

Another area is the relationship between a nurse’s primary and legal

obligation to provide patient care and levels of staffing; and how the interplay

between these two things bears upon meal and rest periods. Except in

units/services where patients are not assigned, the Hospital staffs nurses by a

nurse-to-patient ratio using a matrix that provides for a maximum number of

patients per nurse. One concern raised by the Union and nurses is the safety of

patients if taking a meal or rest period means another nurse must double-up on

11

patients during the time period of the meal or rest break. An additional subject of

debate between the parties is the amount of time it takes to provide a proper,

safe report to transfer patients to another nurse consistent with the Hospital’s

communication standards for transferring patient care (SBAR). Union Ex. 13.

Many, but not all, nurses carry internal cellular phones (Spectralink

phones) and/or pagers with them throughout their shift so that they may be

reached by a variety of individuals: patients, other nurses, staff, doctors, family

members, as the case may be. The parties devoted considerable attention to

how the use of Spectralink phones and/or pagers either did, or did not, affect

nurses’ ability to take their meals and rest periods consistent with the Agreement.

The above areas of contention, as well as other disagreements between

the parties, will be addressed further in the following factual findings and legal

conclusions of this decision.

B. Conference Committee

According to the Employer, nurses should have raised their concerns

about missed meal and rest periods to the Conference Committee. A Letter of

Understanding in the Agreement provides:

Meal/Rest Periods.

The Hospital and the Union are committed to ensuring

nurses have access to breaks and meal periods. In the event that a

nurse has a concern about the inability to take breaks and/or meal

periods, the nurse should communicate this concern to the

immediate supervisor. If the problem continues unaddressed, the

nurse can forward their concern to the Conference Committee.

(Emphasis added.)

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I find the above language is not mandatory and is insufficient to establish

a requirement that nurses exhaust this procedure before, and/or instead of, filing

a grievance. Further, Cutler testified that she did communicate her concerns to

the Conference Committee without success. Tr. 81-82.

VI. THRESHOLD QUESTION: REST PERIODS AND INTERMITTENT

BREAKS

This dispute involves the interpretation of the parties’ Agreement. The

Union bears the burden of establishing a contract violation by a preponderance

of the evidence.

The basic goal of contract interpretation is to determine and give effect to

the intent of the parties as expressed in their written Agreement. Arbitrators are

controlled in the first instance by the contract language. Arbitrators also look to

bargaining history, past practice and other extrinsic evidence as appropriate to

ascertain the meaning of the contract. Elkouri & Elkouri, How Arbitration Works,

448 (6th Ed. 2003).

The core language at issue is contained in Article 7.5 of the parties’

Agreement. The parties have negotiated addendums with language concerning

meal and rest periods for nurses working twelve (12) hours shifts, twelve (12)

hour weekend shifts and sixteen (16) hour weekend shifts. These provisions are

substantially similar to the language of Article 7.5. All the addendums contain

language which states: “All existing contractual provisions apply unless otherwise

provided for herein.” Accordingly, I treat the parties’ Agreement as an integrated

whole. My determination of the meaning of Article 7.5 extends to the addendums

as well.

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As mentioned before, a critical and threshold area of dispute between the

parties concerns whether Article 7.5 allows for intermittent rest periods as

described under Washington law. I address this question first, because the

Agreement’s meaning forms the lens for evaluating the next question of whether

the Employer has violated the contract with respect to rest periods.

The Union claims the plain language of Article 7.5 mandates that nurses

be afforded two rest periods of 15-minute duration. The Employer contends that

Article 7.5 is unambiguous as well because it expressly incorporates relevant

Washington state law which allows for the use of intermittent breaks. The

Hospital asserts that nurses may either take rest periods in blocks of 15 minutes,

or on an intermittent basis, depending upon the circumstances. As explained

below, I conclude Article 7.5 requires that nurses be allowed two “block” breaks

of 15 minutes duration.

A. Legal Authorities

Washington law provides that relevant statutory provisions and regulations

regarding meal and rest periods establish base working conditions for

employees. Parties through collective bargaining may contract for terms that

enhance or exceed the minimum requirements. Wingert v. Yellow Freight

Systems, 146 Wn.2d. 841, 852 (2002); ES.C.6, Administrative Policy

[interpretative guidelines], Washington Department of Labor and Industries

(DOLI).

The Washington Administrative Code (WAC) provides in relevant part:

WAC 296-126-092. Meal periods—Rest periods.

***

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(4) Employees shall be allowed a rest period of not less than 10

minutes, on the employer’s time, for each 4 hours of working time.

Rest periods shall be scheduled as near as possible to the midpoint

of the work period. No employee shall be required to work more

than three hours without a rest period.

(5) Where the nature of the work allows employees to take

intermittent rest periods equivalent to 10 minutes for each 4 hours

worked, scheduled rest periods are not required.

DOLI has issued interpretative guidelines that provide further information

about meal and rest periods, the most recent revised policy is dated June 24,

2005. With respect to rest periods, these guidelines offer the following clarifying

information:

12. What are intermittent rest periods?

Employees need not be given a full 10-minute rest period when the

nature of the work allows intermittent rest periods equal to ten

minutes during each four hours of work. Employees must be

permitted to start intermittent rest breaks not later than the end of

the third hour of their shift.

An “intermittent rest period” is defined as intervals of short duration

in which employees are allowed to relax and rest, or for brief

personal inactivities from work or exertion. A series of ten one-

minute breaks is not sufficient to meet the intermittent rest break

requirement. The nature of the work on a production line when

employees are engaged in continuous activities, for example, does

not allow for intermittent rest periods. In this circumstance,

employees must be given a full ten-minute rest period.

ES.C.6.

The parties submitted three unpublished arbitration decisions regarding

nurses and the subject of missed rest periods and/or meal periods to support

their respective positions.

In Washington State Nurses Association and Good Samaritan Hospital

(Lindauer, February 7, 2005), Arbitrator Eric Lindauer determined a collective

15

bargaining agreement allowed the use of both intermittent and block rest breaks.

The language of the Agreement provided in relevant part:

Meal periods and rest periods shall be administered in accordance

with state law (WAC 296-126-092).

***

All nurses shall be allowed a paid rest period of fifteen (15) minutes

for each four (4) hours of working time.

Arbitrator Lindauer determined that the language of the agreement was

ambiguous. He looked to bargaining history and past practice to determine the

intent of the parties.

Arbitrator Lindauer found that the evidence supported a finding that the

parties intended to permit intermittent rest breaks. Dave Gravrock, who also

testified for the Employer in the proceedings before the undersigned, offered

testimony in Good Samaritan Hospital. Arbitrator Lindauer noted Gravrock

testified that WAC 296-126-092 was provided to the union bargaining team

during negotiations. The parties therein submitted other evidence of bargaining

history, as well as evidence of industry practice. The arbitrator also found clear

evidence of a practice of nurses using both intermittent and block breaks as

supported by testimony and employer policy.

In March of 2006, Arbitrator Eduardo Escamilla issued an award between

Washington State Nurses Association and Yakima Regional Medical Center.

This case concerned whether the employer failed to provide nurses meal and

rest breaks in accord with the agreement. The contract language at issue was

similar to that above, in Good Samaritan Hospital. The arbitrator concluded there

was no violation of the meal period provisions of the agreement based upon the

16

evidence. With respect to rest periods, the arbitrator concluded the agreement

allowed both 15-minute block breaks and intermittent breaks.

In part, Arbitrator Escamilla relied upon the reasoning of Arbitrator

Lindauer in the Good Samaritan case. However, the arbitrator sustained the

grievance in part with respect to rest breaks where there was documentation of

missed breaks by nurses. Washington State Nurses Association and Yakima

Regional Medical Center (Escamilla, March 13, 2006).

In Sacred Heart Medical Center and Washington Nurses Association,

(Levak, May 28, 2006), the arbitrator addressed the issue of the whether the

employer failed to provide nurses with rest periods as required by the labor

agreement. The contract language provided:

Rest periods of fifteen (15) minutes for each four (4) hour work

period shall be provided.

Arbitrator Levak concluded that the above language was patently clear

and unambiguous and the union advanced the only plausible interpretation,

which did not allow for intermittent breaks. The arbitrator distinguished Sacred

Heart from the cases before Arbitrators Lindauer and Escamilla which contained

different contract language (explicit references to administration of the WAC) and

different facts.

I have carefully reviewed and considered these decisions. Each one of

these arbitration cases contains facts that distinguish it from the instant dispute.

My decision is based upon the particular contract language—which is different

from the language at issue in all of the above cases—and the particular evidence

submitted in this proceeding. The above cases contain certain similarities and the

17

parties therein made some arguments akin to those presented here. Accordingly,

in certain respects, the reasoning of the above arbitrators offered guidance here.

B. Analysis of the Contract Language

The rest period  be allowed two (2) paid rest periods of fifteen (15)

minutes each during each shift of eight (8) hours or more in

duration. The application of this section shall be consistent with

state law. (Emphasis added.)

In the first sentence, the use of the word “shall” mandates the Employer to

allow nurses two paid rest periods of fifteen minutes each. The use of “two” and

“fifteen minutes each” clearly indicates a block of 15-minute duration. The

language of this first sentence is straightforward and plain. In fact, with the use of

“two” and “each” it is even more specific than the language in the Sacred Heart

case above. However, limited ambiguity is created by the second sentence which

refers to state law.

A well-recognized arbitral principle of contract interpretation is that more

exact provisions are given greater weight that general language. Or, said another

way, specific provisions restrict the meaning of more general provisions unless a

contrary intention appears from the agreement as a whole or from relevant

extrinsic evidence. Elkouri & Elkouri at 469-470.

Article 7.5 requires the Employer to allow nurses two breaks of 15 minutes

each. This 15-minute rest period properly exceeds the 10-minute minimum of

Washington law, and is consistent with the law. I interpret the general language,

which follows this specific language, to require consistency with state law in other

respects not addressed in the preceding sentence. Unlike the contract language

18

in Good Samaritan and Yakima Regional, Article 7.5 does not contain express

language at the onset of the provision that the meal/rest periods will be

administered in accordance with WAC 296-126-092.

On its face, applying established rules of contract interpretation, the most

plausible interpretation of the Agreement here is that intermittent breaks are not

consistent with the terms of the Agreement. Simply put: the first sentence of

Article 7.5 is too specific and plain in its terms to allow for anything less than 15minute block rest periods.

C. Bargaining History

The Employer argues although bargaining history need not be considered,

bargaining history and industry standard support the interpretation that the

parties intended the use of intermittent breaks. The Hospital submitted copies of

prior collective bargaining agreements between the parties and provided

testimony from Dave Gravrock.

Gravrock is now retired, but for an extended period of time he negotiated

collective bargaining agreements for hospitals, including Providence St. Peter.

Gravrock was involved in negotiations which resulted in the language that is now

contained in the 2004-2007 Agreement.

Gravrock explained that during the 1980’s he was involved in many

negotiations with health care employees, including nurses. He heard an

“undertone” that nurses were interpreting the rest period language of the contract

as though they had the right to an uninterrupted 15-minute (block) break without

19

patient care. Gravrock was asked by hospitals to include language in agreements

that incorporated by reference the state law. Tr. 1009.

The Washington State Nurses Association (WSNA) represented the

nurses prior to Local 141. The 1987-1989 Agreement between the Hospital and

WSNA provided in part:

7.5 Meal/Rest Periods. All nurses shall receive an unpaid meal

period of one-half (1/2) hour. Nurses required to remain on duty or

return to their nursing unit to perform nursing duties during their

meal period shall be compensated for such time at the appropriate

rate of pay. All nurses shall be allowed two (2) paid rest periods of

fifteen (15) minutes each during each shift of eight (8) hours or

more in duration. Employer Ex. 19

Gravrock testified that this was the last agreement the Hospital negotiated

with WSNA. The above language was included in the contract in 1983 and

remained unchanged. Tr. 1006. A successor agreement between the Hospital

and Local 141 was entered into for 1990-1991. Gravock negotiated on behalf of

the Hospital. It was during these negotiations that the parties added the

sentence: “The application of this section shall be consistent with state law.” Tr.

1007-1008; Employer Ex. 19. The Hospital proposed the additional language.

In the negotiations with the Employer and Local 141, Gravrock could not

recall the specific discussion that took place. He had more specific recall of

discussions with some other hospitals later, but not with Providence St. Peter.

Gravrock had no recall of stating in negotiations that the Hospital’s proposal was

related to intermittent breaks. Tr. 1022-1023. Gravrock testified that he would

have communicated that we (the Hospital) were intending to incorporate state

law with the exception of the 15-minute rest breaks.

20

Gravrock reported he carried with him the employment standards (WAC

regulations) that existed at the time and he typically referenced them in

negotiations. A copy of the employment regulations he carried is a part of

Employer Ex. 19. This document includes WAC regulations for Chapter 49.12

RCW: WAC 296-126-001 (scope, definitions, minimum wage requirements,

employment records, hours, etc.) through WAC 296-126-140 (appeal

procedures). Among these regulations is WAC 296-126-092 regarding meal and

rest periods. Gravrock could not say if he provided a copy of these employment

standards to the Union or not. He no longer has his files for the Hospital

negotiations. Tr. 1021-1022. However, Gravrock could say there was

undoubtedly some discussion and then agreement to the language. Tr. 1010.

In the 1992-1994 Agreement between the parties, Article 7.5 remained the

same, but the parties added the addendums for extended shifts. Employer Ex.

19; Tr. 1012-1014. Gravrock testified there was no point to adding the language

about state law to the addendum for the 12-hour shift because of the language of

the first paragraph that indicates that all contract provisions apply unless

otherwise provided. Tr. 1014.

Gravrock acknowledged that other contracts he negotiated specifically

referenced the WAC for meals and breaks—they did it in different ways and it

became more specific. According to Gravrock, from his perspective, it all was

intended to reach the same result—to incorporate state law. Tr. 1016.

Direct communications between the parties during negotiations is

persuasive evidence in order to establish mutual intent. Undisclosed

21

understandings or the subjective intent of one party is not. Elkouri & Elkouri at

456; Spectrum Glass Co. v. Public Utility District No. 1, 129 Wn. App. 303

(Division 1, 2005). Gravrock was a candid witness. Nevertheless, his testimony

does not persuade me that in adding the general sentence about state law to

Article 7.5 the parties’ agreed to the use of intermittent breaks. Gravrock could

not recall what was specifically communicated to the Union at the bargaining

table, nor could he recall specific discussion of intermittent breaks. I find

Gravrock’s testimony insufficient to alter the plain meaning of Article 7.5

articulated above.

D. Past Practice

As with bargaining history, the Hospital argues although it is not necessary

to look beyond the language of the contract, the parties’ past practice confirms

the Hospital’s position that intermittent breaks are allowed under the Agreement.

The Employer contends its policies, historical and current, are instructive

regarding its intent. Employer Ex. 3, 6, 7 and 8. In addressing meal and rest

periods, these policies include language that reflects Washington law with

respect to the use of intermittent breaks.

In order to establish a binding past practice, there must be convincing

evidence of mutuality—that the practice was accepted by both parties. Unilateral

interpretations of one party do not suffice. Elkouri & Elkouri at 624. There is no

evidence that Employer policies were bargained. Several of the policies

expressly state that they cover all employees “except where the subject matter is

covered by specific contract language.” Employer Ex. 8 (1) and (2). The meal

22

and rest period language of the parties’ labor agreement predates and extends

throughout the course of these policies. Compare Employer Ex. 19 and Employer

Ex. 3, 6-8. The language of the Agreement controls and, as explained above,

the language of Article 7.5 is plain in requiring block rest periods of 15-minute

duration.

The Hospital argues that employees have been taking intermittent breaks

for years. The Employer cites testimony of management witnesses who testified

that they had seen nurses taking breaks of short duration. Union witnesses,

however, testified that they had never heard of the concept of intermittent breaks

until recently; and after the instant grievances were filed. See e.g. Tr. 184-185;

Tr. 251; Tr. 1172; Tr. 1309. The record is too mixed and disputed to conclude

there is any sort of binding practice that would clarify the contract language to

allow for intermittent breaks, especially given the plain and specific language of

the Agreement. The conduct of the parties, and how it bears upon my decision,

will be discussed in more detail below.

E. Conclusion

In summary, the question of whether the contract language allows for

intermittent breaks is controlled by the plain language of the agreement. The

language regarding 15-minute breaks is so specific that the most plausible

interpretation of the language as a whole is that block breaks are required; there

was no mutual intent to allow for intermittent breaks. Having made this

contractual determination, it is neither necessary nor appropriate that I address

evidence and arguments by the parties concerning whether the nature of nurses’

23

work allows for intermittent breaks under state law; or whether intermittent breaks

at the Hospital are consistent with state law.

VII. SUMMARY OF THE PARTIES’ POSITIONS; CONTRACT VIOLATION

The following summary provides an overview of the parties’ positions on

the question of a contract violation; absent arguments that concern the issue of

intermittent breaks which already has been decided.

A. Union

The Union argues that the evidence is overwhelming that the process the

Hospital has in place utterly deprives nurses rest and meal periods to which they

are entitled under the parties’ Agreement and Washington law. According to the

Union, this case is not so much about whether nurses receive proper rest and

meal periods as it is about why they do not.

The Union contends that, in part, the nurses do not receive rest and meal

periods because the Hospital does not adequately staff its facility. Nurses

testified how lack of adequate staffing adversely affects their opportunities for

rest and meal periods; conversely, opportunities are enhanced on units where

staffing levels have been increased.

Yet, the Union claims inadequate staffing is not the root cause of the

problem. The Hospital simply has abrogated its contractual and legal obligations

to ensure that nurses receive their rest and meal periods. The responsibility has

been foisted on nurses themselves. Until the Hospital accepts responsibility for

that affirmative obligation, nurses will continue to fend for themselves and receive

little or few breaks.

24

Local 141 asserts that just as tragic is the gross underreporting of missed

meals and rest periods. Underreporting is the result of the Hospital’s willful failure

to accurately advise its employees of their right to compensation for those

events. In 2002, the Washington Supreme Court held that missed break time is

compensable, yet the Hospital did not advise nurses to submit claims for missed

breaks until four years later and roughly four months after Dawn Cutler filed this

grievance. Nor, argues the Union, has the Hospital ever advised nurses to report

missed meal periods when they remain available for duty via Spectralink phone

or pager.

B. Employer

The Hospital argues that the Union has not demonstrated that the contract

has been violated. Even if block breaks are mandated, the nurses already have a

remedy available for missed breaks. Nurses have an obligation to request

coverage and notify managers or charge nurses when it appears a break is

unlikely—with sufficient time to obtain coverage. The Union failed to present

evidence that the nurses were following this procedure. Nevertheless, the

Hospital provided a procedure for nurses to request payment for missed meal

and rest breaks. If the nurse submitted a missed punch form and did not receive

payment, the Hospital offered to correct the mistake.

The Employer contends it has already compensated nurses for missed

rest periods and meal periods. Undisputed testimony from nurses and

management established that nurses were paid for all missed or interrupted meal

periods that were reported to the Hospital. Prior to the Supreme Court’s decision

25

in Wingert v. Yellow Freight, employers were not required to pay additional

wages to employees who missed breaks. After this decision, which determined

that employers must pay an additional amount, the Hospital reviewed and

revised its policy to be consistent with the law. The Hospital’s update of its payroll

reporting system, KRONOS, took a bit longer; however by February 27, 2007 any

prior confusion about how to report missed rest breaks was cured by the addition

of a new “missed break” code.

Hospital staffing ratios are not arbitrable and that subject is expressly

reserved to the Employer’s discretion in the Agreement. Also, the Agreement

provides nurses with a process for addressing staffing concerns through the

Conference Committee (Article 15.1 and 15.1.1.). The Employer also relies on

Arbitrator Escamilla’s decision in Yakima Regional to support this argument. The

Hospital argues that there is no evidence that allowing nurses to cover for one

another for a short period of time is unsafe; managers disputed such claims in

their testimony. The Hospital further emphasizes that it provides any number of

resources to allow the nurses to take their breaks—for example, standby nurses,

float pool nurses, admit/discharge/transfer nurses, rapid response nurses,

housing supervisors, other nurses, charge nurses, nursing supervisors and even

some managers.

According to the Employer, nurses are not required to carry pagers or

phones on meal or rest breaks, though many make the personal choice to do so.

Nurses have been instructed or allowed to turn over their phones or pagers, turn

devices off, or forward calls and pages to another nurse while taking a break. No

26

nurse has ever been disciplined for failing to answer a call or page during a rest

or meal break. The Hospital’s acquiescence to nurse preference regarding

phones and pagers does not create a contract violation. Nurses may carry

pagers and Spectralink phones or otherwise be on call without destroying their

rest breaks. The Hospital relies on White v. Salvation Army and Arbitrator

Lindauer’s reference to White in his decision in Good Samaritan. Similarly,

argues the Employer, small or de minimis interruptions do not nullify a meal

period.

VIII. CONTRACT AND LEGAL OBLIGATIONS

In order to decide the question of whether there has been a contract

violation, it is important to articulate the Employer’s obligations so that the

evidence can be evaluated with those obligations in mind.

A. Review of Agreement and State Law

Although Article 7.5 has been stated previously, for purposes of ease, it is

restated here in its entirety. Article 7.5 provides:

All nurses shall receive an unpaid meal period of one-half (1/2)

hour. Nurses required to remain on duty or return to their nursing

unit to perform nursing duties during their meal period shall be

compensated for such time at the appropriate rate of pay. All

nurses shall be allowed two (2) paid rest periods of fifteen (15)

minutes each during each shift of eight (8) hours or more in

duration. The application of this section shall be consistent with

state law.

In the previous section of this decision, I determined that the above

language requires nurses to be allowed rest periods in 15-minute blocks. The

meal period language requires an unpaid meal period of one-half (1/2) hour.

However, nurses required to remain on duty or return to their nursing unit to

27

perform nursing duties during this one-half hour are to be compensated at their

appropriate rate of pay. In addition to the above contractual obligations, state law

provides edification of the Employer’s obligations.

In Weeks v. Washington State Patrol, 96 Wn.2d 893 (1982), employees

were required to remain on call during their one-hour lunch, although they were

free to go anywhere within their “beat” (including home). Among the issues

addressed in this case was the question of whether the lunch hour should be

considered as time worked under Washington law. The Washington Supreme

Court said yes.

The Weeks Court relied upon relevant Washington regulations, namely

WAC 296-126-002(8) and WAC 296-126-092(1) to reach this conclusion. The

Court explained that even though the employees were permitted to engage in

personal activities, they had to remain available by radio or telephone. The Court

determined that no additional compensation was owed to the employees for the

lunch period because they were compensated by the salaries they were paid.

However, the Court noted it was not disturbing the practice of paying the

employees time and one-half if they were called out during the lunch hour.

In the 2002 case of Wingert v. Yellow Freight, the Washington Supreme

Court addressed, among other things, the question of whether Washington law

required an employer to compensate employees for missed rest periods that

were paid breaks under the terms of a collective bargaining agreement. The

Court concluded that the employees were entitled to compensation. The Court

reasoned, when employees are not provided with their mandated 10-minute paid

28

rest break, their workday is extended by 10 minutes. Thus, the employees were

entitled to compensation for the additional time worked. Wingert at 849.

In 2003, a Washington appellate court decided White v. Salvation Army,

118 Wn. App. 272 (2003) review denied 151 Wn. 2d 1028 (2004). White involved

domestic violence counselors who were required to remain on call. Although they

were required to remain on call and to be available to respond to telephone calls

and resident needs, they did have times during which they could rest, eat, sleep

(on night shift), close their doors to make themselves unattainable, or attend to

personal matters. They were paid for their entire shifts. The employees

contended that the employer did not provide them with meals and rest periods as

required under Washington law and they sought additional unpaid wages.

The Court of Appeals agreed with the employer that these employees did

not need to be completely relieved from duty during meal periods as long as they

were paid, and requiring them to be on call was permissible. White at 276. In so

concluding, the Court relied upon then-existing WAC 296-126-092 which

contemplated an employee remaining on duty, on the employer’s premises,

during the meal period. The Court interpreted this regulation as consistent with

their on-call status. White at 280. The Court also addressed the question of

whether meal periods must be scheduled. The Court determined there was no

affirmative duty on the employer to do so for a specific time as long as the

employer followed WAC 296-126-092. White at 279.

The White Court further concluded that the employees could be on call

during rest periods, provided they received intermittent rest periods, were paid

29

and the employer otherwise complied with WAC 296-126-092. Subsequent to

White, the DOLI issued revised interpretive guidelines and specifically addressed

the question of on-call status.

Current Washington regulations and guidelines that bear upon the issues

in this case are set forth below.

WAC 296-126-092 provides in relevant part:

(1) Employees shall be allowed a meal period of at least 30 minutes

which commences no less than two hours nor more than five hours

from the beginning of the shift. Meal periods shall be on the

employer’s time when the employee is required by the employer to

remain on duty on the premises or at a prescribed work site in the

interest of the employer.

(2) No employee shall be required to work more than five

consecutive hours without a meal period.

(3) Employees working three hours or more hours longer than a

normal work day shall be allowed at least one 30-minute period

prior to or during the overtime period.

(4) Employees shall be allowed a rest period of not less than 10

minutes, on the employer’s time, for each 4 hours of working time.

Rest periods shall be scheduled as near as possible to the midpoint

of the work period. No employee shall be required to work more

than three hours without a rest period.

DOLI Administrative Policy ES.C.2 (revised in 2005, 2007) includes the

following relevant provisions with respect to meal periods and rest periods:

10. When are meal periods considered “hours worked”?

Meal periods are considered hours worked if the employee is

required to remain on the employer’s premises at the employer’s

direction subject to call to perform work in the interest of the

employer. In such cases, the meal period counts toward total

number of hours worked and is compensable. See Administrative

Policy ES.C.6.

DOLI ES.C.6 (revised 6/24/2005) includes the following guidelines:

30

5. When is a meal period required?

Meal period requirements are triggered by more than five hours of

work.

***

. The 30-minute meal period must be provided between the

second and fifth working hour.

. The provision in WAC 296-126-092(4) that no employee shall be

required to work more than five consecutive hours without a meal

period applies to the employee’s normal workday. For example, an

employee who normally works a 12-hour shift shall be allowed to

take a 30-minute meal period no later than at the end of each five

hours worked.

***

6. When may meal periods be unpaid?

Meal periods are not considered hours worked and may always be

unpaid as long as employees are completely relieved from duty and

received 30 minutes of uninterrupted meal time.

It is not necessary that an employee be permitted to leave the

premises if he/she is otherwise completely free from duties during

the meal period. In such case, payment of the meal period is not

required; however, employees must be completely relieved from

duty and free to spend their meal period on the premises as they

please. These situations must be evaluated on a case-by-case

basis to determine if the employee is on the premises in the interest

of the employer. If so, the employee is “on duty” during the meal

period and must be paid.

Employees who remain on the premises during their meal period on

their own initiative and are completely free from duty are not

required to be paid when they keep their pager, cell phone, or radio

on if they are under no obligation to respond to the pager or cell

phone or to return to work. The circumstances in determining when

employees carrying cell phones, pagers radios, etc., must be paid

are subject to payment of wages must be evaluated on a case-bycase basis.

7. When must the meal period be paid?

31

Meal periods are considered hours of work when the employer

requires employees to remain on the premises or at a prescribed

work site and requires the employee to act in the interest of the

employer.

When employees are required to remain on duty on the premises or

at the prescribed work site and act in the interest of the employer,

the employer must make every effort to provide employees with an

uninterrupted meal period. If the meal period should be interrupted

due to the employee’s performing a task, upon completion of the

task, the meal period will be continued until the employee has

received 30 minutes total of mealtime. Time spent performing the

task is not considered part of the meal period. The entire meal

period must be paid without regard to the number of interruptions.

***

9. What is the rest period requirement?

Employees shall be allowed a rest period of not less than ten

minutes on the employer’s time in each four hours of working time.

The rest break must be allowed no later than the end of the third

working hour. Employees may not waive their right to a rest period.

10. What is a rest period?

The term “rest period” means to stop work duties, exertions, or

activities for personal rest and relaxation. Rest periods are

considered hours worked. Nothing in this regulation prohibits an

employer from requiring employees to remain on the premises

during their rest periods. The term “on the employer’s time” is

considered to mean that the employer is responsible for paying the

employee for the time spent on a rest period.

11. When must rest periods be scheduled?

The rest period of time must be scheduled as near as possible to

the midpoint of the four hours of working time. No employee may

be required to work more than three consecutive hours without a

rest period.

***

13. How do rest periods apply when employees are required

to remain on call during their rest breaks?

32

In certain circumstances, employers may have a business need to

require employees to remain on call during their paid rest periods.

This is allowable provided the underlying purpose of the rest period

is not compromised. This means that employees must be allowed

to rest, eat a snack or drink a beverage, make personal telephone

calls, attend to personal business, close their door to indicate they

are taking a break, or make other personal choices as to how they

spend their time during their rest break. In this circumstance, no

additional compensation for the 10-minute break is required. If they

are called to duty, then it transforms the on-call time to an

intermittent rest period and they must receive the remainder of the

10-minute break during that four-hour work period.

(Emphasis in original.)

B. Summary of Contractual and Legal Obligations

Relying upon the above authorities, the Hospital’s contractual and

incorporated legal obligations with respect to meal and rest periods may be

summarized as follows.

Meal Periods: Nurses shall receive unpaid meal period of one-half (1/2)

hour duration. This meal period is to occur between the second and fifth working

hour. In order to remain unpaid, nurses must be completely relieved from duty

and receive 30 minutes of uninterrupted meal time.

It is not necessary that nurses be permitted to leave the Employer’s

premises if the nurse is completely relieved from duty and free to spend his or

her meal period on the premises as they please. Nurses who remain on the

Hospital premises during their meal period on their own initiative and are

completely free from duty are not required to be paid when they keep their cell

phone or pager on if they are under no obligation to respond to the pager or cell

phone or to return to work.

33

Meals must be paid: The Employer must make every effort to provide

employees with an uninterrupted meal period. Meals must be paid when nurses

are required to remain on duty or return to their nursing unit to perform nursing

duties during their meal period. If the meal period should be interrupted due to

the employee’s performing a task, upon completion of the task, the meal period

will be continued until the employee has received 30 minutes total of mealtime.

Time spent performing the task is not considered part of the meal period. The

entire meal period must be paid without regard to the number of interruptions

Rest Periods: All nurses shall be allowed two (2) paid rest periods of

fifteen (15) minutes each during each shift of eight (8) hours or more in duration.

The parties agree here that a third 15-minute rest period is required for nurses

that work a 12-hour shift. I have interpreted the contract to mean a 15-minute

block of time for each rest period; not intermittent breaks.

A rest period means to stop work duties, exertions, or activities for

personal rest and relaxation. The Employer may require nurses to remain on the

premises during their rest periods. The rest period must be scheduled as near as

possible to the midpoint of the four hours of working time. No nurse may be

required to work more than three consecutive hours without a rest period. If a

nurse does not receive a rest period, he or she is entitled to be paid for the

missed rest period. On-call situations with respect to rest periods will be

addressed later in this decision.

34

IX. ANALYSIS OF CONTRACT VIOLATION

The question presented is whether the Employer violated the meal and

rest period provisions of the parties’ Collective Bargaining Agreement. The

Arbitrator concludes that the Hospital has violated the Agreement. The following

is my reasoning.

A. Overview of Evidence

As stated the onset, this case was tried over the course of seven days.

The Union provided testimony from 27 registered nurses. Registered nurses

worked, or had worked, in the following Hospital units or services: The Family

Birth Center, which includes labor and delivery, special care nursery, partum and

post-partum; pediatrics; emergency department; float pool; IV Therapy; medical-

renal; neurology; oncology; orthopedic; short stay; and surgical unit. A rebuttal

witness worked in the telemetry unit but was called for a limited purpose to

address notice of the concept of intermittent breaks. The Union also submitted

twenty exhibits, including an extensive number of missed punch forms.

The Employer responded with testimony from management personnel with

supervisory responsibilities for all of the above services or units. Additionally, the

Hospital called witnesses to explain and provide evidence concerning their

various staffing and scheduling electronic systems. The Employer submitted

thirty-three exhibits which also included an extensive amount of missed punch

forms and computer print-outs. Additional documents were submitted after

hearing by agreement of the parties.

35

I have reviewed the record in this case and considered all of its contents.

Due to the extent of the record, I have summarized evidence and made findings

and conclusions as set forth below. I have tailored my analysis to the contentions

of the parties. Having determined the Agreement does not allow for intermittent

breaks, I turn my attention in the remainder of this decision to other evidence and

arguments relating to the receipt and payment of rest and meal periods.

B. Staffing

The Union contends that, in part, nurses do not receive rest and meal

periods because the Hospital does not adequately staff its facility. The Hospital

argues staffing ratios are not arbitrable; that subject is expressly reserved to the

Employer’s discretion in the Agreement. Also, the Agreement provides nurses

with a process for addressing staffing concerns through the Conference

Committee. I agree with the Employer.

Article 17 specifically reserves the Hospital the right to determine staffing

requirements. Joint Ex. 1. Article 15.1.1 sets forth a process for nurses to

address concerns about the level of staffing. The Agreement provides that

matters arising under this section “shall not be subject to the Grievance

Procedure unless the staffing/patient care issue involves an alleged violation of

another provision of this Agreement. In such case, the provision allegedly

violated will be the subject of the grievance.” Joint Ex. 1, p. 28.

The parties argued and produced considerable evidence that bears on the

subject of Hospital staffing levels. Nurses testified that they were unable to take

breaks because of understaffing. Some testified that the “buddy” system did not

36

work on their units/shifts as a procedure for meals and breaks because their

buddy or partner’s patient load doubled. They did not want to add to their buddy’s

already full workload and did not believe it was safe. On the other hand,

management personnel testified that using the buddy system was safe for short

periods of time. The Hospital also provided evidence of all of the other available

resources for nurses to call upon to receive their meals and breaks.

The Union’s grievance in this case was filed under the meal and rest

period provisions of the parties’ Agreement. My authority is limited to deciding

whether the Employer has violated those provisions and, if so, the appropriate

relief for violation of those specific provisions. Article 15.1.1; see also: Yakima

Regional Medical Center at 21.

The evidence concerning staffing levels is relevant and important to my

understanding of the nature of this dispute as well as the influence that staffing

has on the nurses’ ability to take meal and rest periods. I have considered the

evidence of both parties on this subject. The scope of my authority, however,

does not extend to deciding what levels of staffing are safe; nor does it allow me

to order specific relief on that subject for any violation of the meal and rest

periods contract provisions. For that reason, I make no findings or conclusions

regarding appropriate staffing levels. As explained below, my decision turns on

other evidence and arguments made by the parties.

C. Receipt and Compensation for Rest Periods and Meal Periods

1. Receipt of Rest and Meal Periods

With respect to rest periods, there is a pattern of nurses rarely and/or

37

inconsistently receiving blocks of 15 minutes where they are completely relieved

from their work duties. See e.g. Tr. 46 (Never); Tr. 133 (Prior to June 2007 50%

of the time; after June 2007 90% of the time); Tr. 184 (Always has phone, paged

50% of time); Tr. 217 (Extremely rarely); Tr. 251 (Never from March 2006-June

2007); Tr. 285 (Less than 5% of the time and carries phone); Tr. 313 (Never); Tr.

342 (Only in the last couple of months/1 per shift); Tr. 371 (Randomly and

Rarely); Tr. 394 (Never); Tr. 419 (Never fully relieved from duty; partially, with

phone 30% of time); Tr. 441 (25% of the time); Tr. 460 (Always has phone and it

goes off all of the time); Tr. 514-515 (First 15 minutes attached to lunch;

afternoon no break until one month ago, now ½ of the time); Tr. 546 ( ½ of the

time for first 4 hours; ¼ of the time for second); Tr. 571 (10-20% of the time); Tr.

588-89 (Did not happen much at all before grievance, after improved but still

sporadic); Tr. 607 (Probably never); Tr. 637 (Maybe 1-2 times a week or less);

Tr. 646 ( Never two 15 minute breaks); Tr. 659 (Very rarely—less than 10% of

time); Tr. 673 (Almost never); Tr. 693 (Does not recall it happening); Tr. 712

(Does not receive 95% of time).

Testimonial evidence also establishes that on many occasions nurses are

not receiving 30-minute meal periods where they are completely relieved from

duty, uninterrupted and free to spend their time as they please. See e.g. Tr. 140;

Tr. 218; Tr. 253; Tr.288; Tr. 290-297; Tr. 316-319; Tr. 396; Tr. 572; Tr. 647; Tr.

678; Tr. 695; Tr. 713-714.

38

2. Compensation

In addition to the testimony of nurses, the Union submitted documentary

evidence of missed punch forms that indicate nurses are not fully receiving

compensation for documented missed rest breaks and meals as they should.

Union Ex. 1, 2, 3, 5, 6, 18, 19 and 20.

In large part, this evidence was submitted by Registered Nurse Clifford

Rice, who is the Executive Vice President of the Union. Rice performed an

analysis of 2007 missed punch forms. For forms marked with “no break” by

nurses he found a 13% error rate (31/244) in the Hospital’s payment for breaks

(rest periods). Union Ex. 18. Reviewing 200 forms marked “no lunch or break,”

Rice found an error rate of 35% (70/200). Most of these errors were to the

detriment of nurses; but a few were to their benefit.

The Hospital argues that it has already compensated nurses for missed

meal periods. The Employer references testimony of nurses who stated at

hearing that were paid for all missed or interrupted meal periods.

Nearly all nurses did testify that they were paid for missed meals when

they filled out the missed punch form. However, during their testimony the

nurses did not have the benefit of their documentation. Further, the Union’s

evidence extends beyond the nurses that testified.

The Hospital argues that it performed its own investigation into reported

missed rest breaks, corrected any errors, and paid nurses for missed

compensation. However, the Employer did not offer evidence to show or explain

39

how the Union’s analysis of errors is incorrect. Accordingly, I credit the Union’s

evidence that errors in compensation remain and are unexplained.

3. Reports on Internet/Cafeteria Use

The Employer submitted internet usage reports for individuals (as well as

for particular computers) and KRONOS Timecard Audit Trail reports to

demonstrate that nurses are using the internet for personal use during their shift

to make purchases from the cafeteria and latte stands. Employer Ex. 20-23 and

26 and Reports 1187:8-1188:15 and 1196:19-1198:3. The Employer supplied

such documents primarily in support of its claim that nurses are receiving

intermittent or block breaks; and in some instances for impeachment purposes.

As the Union points out, the time periods covered by these reports are

limited in relation to the grievance period as a whole. With respect to the

computer usage individual reports, it is possible for employees to use another

employee’s number to access the internet, say for example when the first

employee forgets to log off. Tr. 1117. Also, non-nursing personnel have access

to the same computers the nurses use. Tr. 1104-1105. In her rebuttal testimony,

Cutler testified that records were incorrect because they showed she visited

internet sites at times when she was not working at the hospital and showed use

of sites that she does not use. Tr. 1355.

I have reviewed and considered this evidence. These records are limited

in time and their reliability/accuracy is to some degree suspect. Many nurses

undoubtedly have made runs to the cafeteria, latte stand and used the internet.

Many nurses admitted that they did so. However, they often had their phones or

40

pagers with them. These Employer reports are inadequate to demonstrate that

nurses have been receiving block 15-minute rest periods and/or to overcome

substantial evidence that nurses have failed to receive block 15-minute rest

periods as required by the Agreement.

4. Summary

In summary, I find the Union established that from March 2006 until to

date nurses have not been allowed 15-minute block breaks and meal periods as

required by the Agreement. The Union also established that nurses have not

been correctly compensated for all documented rest periods and meal periods.

D. Procedures for Meals and Rest Periods

The Union argues that the Hospital has abrogated its contractual and legal

obligations to ensure that nurses receive their rest and meal periods. I agree that

at the time of the grievance the Hospital’s procedures were lacking. As explained

below, the Employer failed to provide correct and adequate information to

employees about their entitlement to meal and rest periods; as well as failed to

provide adequate procedures to nurses for taking meal and rest periods, or for

claiming compensation for missed meal/rest periods. The Employer recently has

taken steps to improve its procedures; nevertheless, as demonstrated by my

findings in Section C above, problems remain.

1. Hospital Information and Underreporting

Local 141 contends that nurses are underreporting both missed meal

periods and rest periods. The Union makes several arguments to support this

claim. With respect to rest periods in particular, the Union contends the Hospital

41

for years has been disseminating misleading information concerning nurses’ right

to compensation. The Hospital argues it initiated its own investigation into reports

regarding confusion regarding missed rest periods; and it has cured any

confusion in reporting procedure with the update to KRONOS on February 27,

2007.

The Hospital acknowledges that with the Supreme Court’s 2002 decision

in Wingert v. Yellow Freight, the landscape for payment of the rest periods

changed. Prior to that decision, employers were not required to pay additional

wages to employees who missed rest periods on the logic that they were already

paid. After the Wingert decision, employers were required to do so. The Hospital

argues that after Wingert, it reviewed and revised its rest period compensation

policy to be consistent with the law.

The difficulty with the Hospital’s argument is that the evidence shows the

Employer did not communicate this change in law to its managers and

employees until some time after Cutler’s grievance in 2006. Nurses consistently

testified that they had been told by timekeepers, managers and others that they

were not paid for missed rest periods because they were already paid for such

breaks. See e.g. Tr. 24-28; Tr. 188; Tr. 220; Tr. 424; Tr. 549; Tr. 649; Tr. 676677; Tr. 715-716. Also see: Union Ex. 14 (August 23, 2005 missed punch form

signed by manager with statement “Missed breaks are not compensated.”).

Some managers also testified that this was their understanding until about mid2006. See e.g. Tr. 1149; Tr. 1255.

42

The earliest documented notice to managers of the change in law is in a

July 31, 2006 memorandum from Employee Relations Manager Mary Mertens to

all managers. This memorandum provides in part:

The purpose of this memorandum is to provide information

regarding a change in pay practice related to meals and breaks.

In accordance with state and federal law, employees are provided a

minimum of two rest periods and a 30-minute meal break for an 8hour shift (this will vary with longer shifts). A recent court ruling has

indicated that employers are required to reimburse employees for

missed breaks, which can be taken in block time or intermittently.

With the implementation of KRONOS and ProvConnect several

questions have come to the attention of Human Resources

regarding the submission of payment for a missed meal and/or rest

period. Employees will be required to submit a missed punch form

within 24-hours of the occurrence for submission into the Kronos

system. Managers will investigate the reason for a missed break or

meal period as well as authorize payment as appropriate.

Employer Ex. 9.

The memorandum advised managers of a timeline for implementation of

this change with information and training for managers. The memorandum also

stated a letter would be mailed to the homes of employees with questions and

answers by August 11, 2006. The memorandum further states:

For those departments who currently have a defined process for

meal and/or break relief, or the nature of the work in the department

allows for disruption, this may not be an issue. For clinical areas or

those departments that may not have a full compliment of staffing

this change in practice may bring forth additional considerations.

Employer Ex. 9.

The Employer submitted another memorandum about meals and breaks

dated September 12, 2006 which is addressed to all employees from HR

Administrator Susan Meenk. The memorandum included an attachment with

43

questions and answers (Q & A’s). On the first page of the memorandum it states

in part:

With the recent implementation of the ProvConnect and KRONOS

systems several questions have recently been brought to the

attention of the Human Resources department with regard to the

process for submitting a missed meal or rest break for payment.

In accordance with state and federal law, employees are provided a

minimum of two rest breaks and a 30-minute meal break for an 8hour shift. If you are currently working a longer shift, the number of

required breaks and meal periods may vary.

The Hospital wants to ensure that employees are provided required

breaks and meal periods. Each manager is responsible to make

certain that employees are provided a process for receiving their

breaks and meal periods. If you are unable to take a rest break or

meal period, please submit a missed punch form to your manager

or timekeeper within 24-hours of the occurrence for submission to

the KRONOS system. If eligible for payment, you will be

compensated for such time at the appropriate rate of pay. * * *

Employer Ex. 10.

The information contained in the Q & A attachment is set forth below

absent the Q & A format:

It is the responsibility of management to provide a process for

taking rest breaks and meal periods. It is the responsibility of each

employee to follow that process and/or to inform the manager why

the process cannot be followed. Managers should be informed

immediately so that there is time for the manager to provide rest

breaks and meal periods by an alternate process if at all possible.

You must inform your timekeeper by filling out a Missed Punch

Form within 24-hours of the occurrence. Simply indicate either

“missed break” or “missed lunch” on the form. The form will be

forwarded to your manager who will investigate the reason for the

missed break/meal period as well as authorizing payment as

appropriate.

If you have not been able to take your rest break, either in

continuous block of time or intermittently, you should be paid. It is

important, therefore, that you follow the process for timely reporting

so that remedies can be made appropriate. Most individuals [if on

a break and receive a call or otherwise get interrupted for work]

44

extend their breaks the same amount of time as the interruption. If

that is not possible and you need to return to work without the

opportunity to complete either a 15-minute break or smaller

intermittent breaks, then it would be considered a missed break and

should be recorded as such. State law says that a break can be

taken in a block of time or intermittently, as in three 5-minute

periods for example. Having time to get coffee or visit with friends

or coworkers are examples of intermittent breaks.

An employee may not waive their rest breaks and they may not be

combined with meal periods. Meal periods cannot be waived unless

the position has been designated as a “No Lunch” position. Rest

periods may not be waived. They are intended to provide rest

during your shift and leaving early does not meet that need.

Employer Ex. 10

The Q & A also includes the question: “Can I refuse to take my break or

meal period because I don’t want to leave my patients or otherwise feel

uncomfortable about leaving?” The provided answer is: “If you determine that

you are unable to take your break or meal period, you still need to follow the

process described above, i.e. notify your manager, fill out a missed punch form,

submit it to the timekeeper, and be prepared to address your concerns to your

manager. If the manager determines that you have the opportunity to take a

break, have coverage, and should take a break, and you still refuse, then it

becomes a performance management issue.” Employer Ex. 10.

The Union argues that Employer Ex. 10 does not show an earnest effort to

resolve problems and/or encourage reporting of missed breaks because there is

no evidence that nurses received the letter. Also, the Q & A specifically

acknowledges that nurses are carrying and answering Spectralink phones, but is

silent on what to do with phones during meal periods.

45

The Employer submitted Exhibit 10 through the testimony of Elizabeth

Hopkins who is the clinical manager for the medical-renal unit. Hopkins did not

remember if employees got it in the mail. She was sure that they did receive it,

but was not sure of the delivery method. Hopkins testified that “we talked about it,

and Ann Monaghan, the director of the unit would also have made sure that it

went out. I know that it went out from HR.” Tr. 829.

Hopkins’ testimony provides some support that Exhibit 10 was provided to

employees, at least in the medical-renal unit; but it does not establish with

certainty how the memorandum was delivered or exactly to whom. I credit Exhibit

10 as providing the Hospital’s view of what is required with respect to meal and

breaks at that time; and it was an attempt to communicate that information to

employees. Nevertheless, the evidence is insufficient to establish either

presumptively or conclusively that Exhibit 10 was received by all nurses in the

Union’s bargaining unit. Further, Exhibit 10 does not contain correct information

about the rest period requirements (block 15-minute breaks) for nurses covered

by the parties’ Agreement.

Over a year later, on October 23, 2007, the Hospital sent a memorandum

specifically to members of the Union’s bargaining unit that is entitled “Guidelines

for Rest Breaks and Meal Periods”. Union Ex. 15. The memorandum is one

page plus an attachment with Q & A‘s that contains essentially the same

information as Employer Ex. 10. The face of the memorandum provides the

following information:

Providence St. Peter Hospital is committed to ensuring that each

nurse receives his/her rest breaks and meal periods. For this

46

reason, we want to remind you of the processes that will enable

each nurse to take rest breaks and meal periods.

. Each nurse who works at least five hours in a shift is

entitled to an unpaid meal period of one-half hour. This meal period

should be uninterrupted. This means that you should hand over

your phone/pager/duties to the relief/buddy nurse or utilize any

other arrange [sic] specific to your unit that will ensure that you will

not be interrupted during your meal period. If you anticipate

interruptions, speak with your charge nurse or manager to

determine if assistance can be provided in advance of your meal

period.

. If you are unable to take a meal period or are unable to

take an uninterrupted meal period, please fill out a Missed Punch

form within 24 hours of the occurrence. You will be compensated

for all properly reported missed meal periods.

. You are also entitled to two or three rest breaks depending

on the length of your shift. This time is paid. You may take your

rest break in fifteen-minute increments or in smaller intermittent

breaks. This means you can take several shorter breaks that total

fifteen minutes to take care of personal matters, such as getting

coffee, taking a personal phone call, or running errands. If you

anticipate that you will not be able to take a rest break, speak to

your charge nurse or manager to determine if assistance is

available to so [sic] you can take your rest break.

. If you are unable to take your fifteen-minute block break

or smaller intermittent breaks that total fifteen minutes, please fill

our [sic] a Missed Punch Form within 24 hours of the occurrence.

You will be compensated for properly reported missed rest breaks.

If you have any questions about how to do this, please ask your

manager.

. We do our best to ensure that you receive your rest breaks

and meal periods, and will compensate nurses for properly reported

missed rest breaks or meal periods. However, it is your

responsibility to (1) relinquish your phone/pager/duties when you

take your rest breaks and meal periods; (2) alert the appropriate

charge nurse or manager so that help can be provided in advance;

and (3) promptly submit Missed Punch Forms for any missed rest

breaks or meal periods. * * *

Union Ex. 15.

The Employer has taken steps to explain and better define procedures for

taking and reporting meals and rest periods. As described above, however, the

Hospital did not provide nurses with correct information about entitlement to rest

47

periods consistent with the Agreement and failed to provide other important

procedural information about rest periods and meal periods. I find the Employer’s

failure to provide correct and adequate information about rest and meal periods

was a substantial and contributing factor to the underreporting of rest and meal

periods.

2. Missed Punch Forms

The Union contends that the underreporting problem was further

exacerbated by the Hospital’s failure, both past and present, to have a column on

the missed punch form for missed rest periods. I agree.

The missed punch form currently, and historically, used by the Hospital

contains a column for missed meals; it does not contain a column for missed rest

breaks. Union Ex. 8. Nurses can, and have, written in narrative on the form that

they missed their rest periods. Yet, it is undisputed that it was difficult for nurses

to ascertain if they were paid for rest periods on their payroll statements prior to

the recent KRONOS change. See e.g. Tr. 32-35. Timekeepers also were

confused or followed different practices with respect to reporting rest periods. Tr.

930-931; Tr. 1185.

When coupled with incorrect information about entitlement to

compensation for rest periods, this lack of an identifiable column for rest periods

on the nurses’ record for tracking hours added to the problem.

As of February 27, 2007, KRONOS has a specific category for missed rest

periods; a logical step would have been to correspondingly modify the missed

48

punch form. A specific column would have alerted employees for the need to

report missed rest periods and have made it easier to do so.

3. Phones/Pagers and Fetal Monitors

a. Phones and Pagers

Local 141 contends the Employer’s procedures are deficient and have

caused underreporting of meal and rest periods because the Hospital has not

advised nurses to report missed meal periods when they remain available for

duty via Spectralink phone or pager. The Union cites Employer memorandums

subsequent to the grievance that acknowledge nurses’ use of phones and pagers

during breaks. Local 141 also asserts that phones/pagers are the primary vehicle

by which nurses continue to deliver patient care while attempting to get a meal or

rest period. In addition, the Union argues that it was not until October 23, 2007

(Union Ex. 15) that the Hospital instructed nurses for the first time to hand over

their phone/pager duties to a buddy nurse.

The Hospital contends that nurses are not required to carry pagers and

phones on meal and rest periods, though many make the personal choice to do

so. According to the Employer, managers and nurses alike testified that they

were instructed, or allowed, to hand over phones or pagers, turn the devices off,

or forward calls and pages to another nurse while they take a break. Further, no

nurse has been disciplined for failing to answer a call or page during a break.

There is no doubt from the evidence that many nurses carry phones

and/or pagers as a part of their required duties at the Hospital. There are a few

units where such devices are not used, or used less frequently; however overall

49

their use is prevalent. The evidence clearly established that nurses who carry

such phones and pagers are taking them on their meal and rest periods---and

frequently responding to them during those times to perform work duties/patient

care. The record establishes that management knows nurses are doing so.

As mentioned earlier, many nurses are reluctant to relinquish/not answer

phones and pagers when they are busy due to work/patient demands and

because to do so would double the work load of other nurses. On the other hand,

managers are convinced it is safe to do so for short periods of time.

This area of disagreement is directly related to staffing and patient safety

issues. It is an especially difficult problem because individual nurses have legal

obligations concerning patient care; as well as policy obligations for the safe

transfer of the care of patients to others. See Union Ex. 13; WAC 246-840-710.

This problem, however, demonstrates the need for explicit and workable

procedures on the use of phones and pagers in connection with meal and rest

periods.

Managers reported that they have told nurses they should, or could, turn

over their phones and pagers. Some nurses admitted receiving this information.

Yet, the evidence is not clear when these verbal instructions were given; how

many nurses received such instructions (for example, not all nurses attend staff

meetings) and the specificity or scope of the instructions. The evidence indicates

these instructions were recent, after the Cutler grievance was filed, and

coinciding to some degree with the Hospital’s written memorandums to

managers and employees.

50

The record does not show written Hospital procedures on how to handle

phones and pagers in connection with meal and rest periods until well after

March of 2006. Employer Ex. 10 (September 12, 2006); Union Ex. 15 (October

23, 2007). The evidence also demonstrates that nurses are not consistently

reporting missed meals and rest periods when they are interrupted by phones

and pagers.

The Employer has begun to address this problem. Yet, the evidence fails

to show that its instructions to date have been effectively communicated to all

members of the bargaining unit and that such instructions are working to

significantly diminish missed meal/rest periods (Section C above) or correct

underreporting problems.

The Hospital argues that nurses may carry pagers/phones or otherwise be

on call during rest periods without destroying the rest break designation or

requiring compensation. In support of this argument the Employer relies upon

White v. Salvation Army and Arbitrator Lindauer’s opinion on Good Samaritan.

In Good Samaritan, Arbitrator Lindauer relied upon the White case in the

context of concluding that intermittent breaks were appropriate under the

circumstances presented in that case.

In White v. Salvation Army, the domestic relations counselors were

required by their employer to be on call throughout their entire shifts and they

were paid for their entire shifts. 118 Wn. App. At 275. The Court determined that

such employees could be on call and that their rest periods may be intermittent

under WAC 296-126-092.

51

In contrast to the above cases, I have concluded that the parties’

Agreement entitles nurses to block 15-minute rest periods. Thus, this case is

distinguishable from those that allow for intermittent rest periods.

DOLI has revised its interpretive guidelines since the White case and

Arbitrator Lindauer’s award in Good Samaritan. DOLI guidelines speak to

interruptions in rest periods only in the context where employees are required by

their employer to remain on-call. In those situations, DOLI explains no additional

compensation is required if employees are called to duty; but they must receive

the remainder of the break during the appropriate 4-hour time period. DOLI

describes this situation as transforming the on-call time to an intermittent rest

period. ES.C.6 #13.

Guideline #13 does not adequately address or fit the factual

circumstances presented in this case. It is not clear how this guideline applies in

the case of a contractual obligation that requires block 15-minute rest periods.

To interpret this “on call” guideline here to achieve intermittent breaks would

obviate the specific requirements of the Agreement.

I conclude that the Employer has failed to provide to members of the

Union’s bargaining unit adequate information about legal rights/obligations in

connection with phone/pager use and has failed to provide adequate procedures

for their use in connection with meals and rest periods. Recently the Hospital has

published written guidelines for members of the bargaining unit. Yet, substantial

problems still exist. These procedural deficiencies also contributed to the

underreporting of missed meals and rest periods.

52

b. Fetal Monitors

The Union emphasizes that the Employer has failed to remove fetal

monitors from the labor and delivery break room despite evidence that nurses

watch those monitors during rest and meal periods—and management is aware

of it. The Employer indicated it would remove the monitors upon completion of

remodel but has not done so. Based upon the evidence, I agree that having

these monitors in the break room has contributed to the problem of missed meal

and rest periods in this designated area. I do not find it appropriate, however, for

me to determine when and under what circumstances the Employer should

remove such monitors.

4. Fear of Retaliation

According to the Union, nurses have been and are underreporting rest

periods because supervisors either implicitly or explicitly discourage such

reporting. In support of this argument the Union cites examples of nurse

testimony and several exhibits. Union Ex. 12, 14, 16. Tr. 551-552; Tr. 220-223;

Tr. 677-678. The Union also argues the Employer directive that it will investigate

claims for missed breaks serves to discourage nurses from reporting them.

Union Ex. 15; Employer Ex. 10.

The Hospital counters that such allegations are without merit. The

Employer opines that the few nurses who testified to this effect were unable to

explain the basis for their concern. And, Hospital investigations that asked

questions about why nurses had not asked for relief are examples of responsible

management, not intimidation. Plus, it is undisputed that no nurse has ever been

53

retaliated against for submitting a missed punch form for payment of a missed

meal or rest period.

There is evidence that nurses fear management’s response to the

reporting of missed meals and breaks. See e.g. Tr. 50; Tr. 220-223; Tr. 551-552;

Tr. 729. Nurses also testified that the “culture” at the Hospital is one in which

reporting of missed breaks is discouraged. See e.g. Tr. Tr. 28; Tr. 714. Union

Exhibit 16 illustrates this type of problem. In a January 4, 2008 message to a

clinical manager, a charge nurse indicates that she had to sign another missed

rest period form for a nurse. The charge nurse states at the bottom of the

message: “I signed the paper and told him that I had not had a break either (by

my choice.).” Union Ex. 16.

Another nurse was counseled in connection with her performance

evaluation to better plan for breaks and lunch time and to use established

protocol. Union Ex. 12. The Employer provided evidence about why this

counseling was needed in this particular situation. Tr. 985-987. The nurse

involved, however, reported that this counseling has discouraged her from

reporting missed meals and rest periods. Tr. 678.

The record fails to establish retaliatory conduct by the Hospital.

Nevertheless, I do not discount nurse testimony that they fear management’s

response to the reporting of missed breaks. I find that to some extent this fear

factor has been a negative influence on the reporting of missed breaks.

54

5. The Need for Flexibility in Procedures

The Hospital presented evidence and argument concerning the need for

flexibility in meal and rest periods due to the varied demands in each unit/work

location and because of the work fluctuations during each shift. Based upon the

record, I am convinced that there is need for some flexibility. Yet there must be a

balance between flexibility and adequate and workable Hospital procedures for

meals and rest periods.

The Hospital is responsible for adequate procedures in units and work

locations which spell out a defined process for how meals and rest periods are to

be accomplished in accord with the Agreement and during the time periods

required by state law. Nurses must be informed of these procedures. While there

has been recent improvement, especially on particular units or shifts, on some

units and shifts procedures are loose and informal.

The evidence persuades me that the Hospital has not developed

adequate procedures for all units or on all shifts. Nurses are still missing and not

reporting a significant number of rest and meal periods. In those units and on

shifts where nurses are regularly missing rest periods and many meal periods;

existing procedures are insufficient.

Considering the record as a whole, and having made all of the foregoing

findings and conclusions, the scope of the existing rest and meal period problem

cannot be attributed in a significant way to nurses’ own failure to follow

instructions or obligations.

55

E. Summary and Conclusion

In summary, nurses are not receiving rest periods and meal periods as

they should under the terms of the parties’ Agreement. The Hospital

communicated incorrect information to nurses about their entitlement to

additional compensation for missed rest periods. This incorrect information was

perpetuated for a considerable period of time and the Employer did not attempt

to correct it until recently; well after this dispute arose. The Hospital’s form for

tracking nurses’ hours contains no recognition of rest periods on its face. These

factors contributed to a substantial underreporting problem.

The Employer did not provide procedures to nurses that correctly informed

them about their rights under the Collective Bargaining Agreement (i.e. block 15minute rest periods). Additionally, the Hospital failed to provide adequate

information about rights/obligations under state law with respect to meal and rest

periods. Such information is necessary in order for nurses to understand how to

receive rest/meal periods and to report them in order to be compensated when

they do not. The Employer also did not provide and disseminate well-defined

procedures for taking of rest/meal periods on units/shifts on a consistent basis.

For the foregoing reasons, the Arbitrator concludes the Employer violated

the rest and meal period provisions of the parties’ Agreement. In arriving at this

conclusion, I have considered all of the facts, arguments and authorities

submitted by the parties even if not specifically mentioned in this decision.

56

X. REMEDY

A. Hospital Arguments

The Hospital contends that the Union’s “class action” grievance is without

factual or legal support. According to the Employer, even if the Agreement

permitted group grievances (which it does not) the nurses who testified

represented only a slice of various units of the Hospital. Additionally, argues the

Hospital, to establish a group or class grievance, there must be commonality of

interest; something lacking here because each unit functions differently.

I am not persuaded by the above arguments. First, I agree with the Union

that the Hospital’s objection to the scope of the grievance is untimely. It was

raised for the first time in arbitration. Cutler clearly identified on her grievance

that she was filing on behalf of herself and all members of the bargaining unit.

The language of Article 16 does not prohibit such a filing and the Employer did

not object to the group grievance throughout the entire grievance process or prior

to arbitration.

Second, I find that nurses who testified constitute a sufficient slice of the

bargaining unit. Testimony (excluding two rebuttal witnesses) of 25 registered

nurses across numerous units and shifts is a sufficient representative sample.

See, e.g. Reich v. Southern New England Telecommunications Corporation, 121

F.3d 58 (2nd Cir. 1997) (the testimony of a representative sample of 2.5% of a

clearly defined category of worker was an adequate sample upon which to award

back pay to entire group of employees). Even though each unit at the Hospital

functions somewhat differently, registered nurses represented by the Union are a

57

clearly defined category of worker. They share a sufficient commonality of

interest in their work and working conditions despite variations units and shifts.

B. Union Arguments and Requests

The Union requests both affirmative and compensatory relief in order to

remedy the Employer’s contract violation. The Union argues that I should apply

a shifting burden of proof in this case on the issue of damages. Local 141 cites

authority for the proposition that after the moving party has proved all elements of

its case; the burden is on the breaching party to show an absence of damages

where the breaching party is in a better position to supply the evidence.

Kennewick General Hospital and UFCW Local 141 (Wilkinson, 1998)

(Unpublished Opinion.)

The Union also relies upon the U.S. Supreme Court case of Anderson v.

Mt. Clemens Pottery Co., 328 U.S. 680 (1946) and its progeny for the shifting

burdens approach and for the premise that an employee need not provide the

precise extent of uncompensated work; only sufficient evidence for the amount

and extent of the work as a matter of just and reasonable inference. This

approach is based upon the rationale that where employer records are

inadequate, the solution is not to penalize the employee by denying recovery due

to inability to prove the precise amount. See Anderson v. Mt. Clemens Pottery at

687-688.

The Ninth Circuit and many other circuits have repeatedly invoked Mt.

Clemens Pottery in evaluating class action claims in FLSA cases. For example,

in Rural Fire Protection Company v. Hepp, 366 F.2d. 355 (9th Cir. 1966), the

58

court stated that plaintiff’s proof need only reasonably approximate or support a

reasonable inference regarding the amount of time worked. See also, Brock v.

Seto, 790 F.3d. 1556 (9th Cir., 1986).

I am mindful of the above precedent. I do not follow a strict shifting

burdens analysis in these arbitration proceedings. Nevertheless, I consider the

above precedent in formulating a remedy given the basis for the contract

violation in this case.

I also consider that where a labor agreement is violated an appropriate

remedy “is that which flows naturally from the breach or which could be said to

be within the reasonable contemplation of the parties at the time of formation.”

Kennewick General Hospital and UFCW Local 141, at 28. Here, compensation

was contemplated by the parties because it is expressly mentioned in Article 7.5,

particularly with respect to meal periods. Additionally, I have taken into account

that In Washington, Wingert extends compensatory relief to rest periods.

As affirmative relief, the Union asks the Arbitrator to fashion an award that

will ensure as much as possible that Hospital nurses are provided meal and rest

periods: namely, (1) the Hospital be directed to schedule fifteen minute breaks

and thirty minute meal rest periods; (2) The Hospital should be required to act in

good faith to actually provide unpaid meal periods to its nurses and should be

directed to cease and desist any use of unscheduled intermittent breaks; (3) the

Hospital should assume responsibility for providing a safe transfer of patient

assignment between nurses by providing adequate nursing coverage when

nurses go on breaks/meal periods; (4) the Hospital should cease and desist

59

permitting nurses to observe fetal monitors or to perform any other nursing duties

while on rest and meal periods; and (5) the Hospital should be ordered to

develop a reporting process that is substantively clear and that allows nurses to

report missed periods without reprisal.

As a compensatory remedy, the Union requests that Hospital nurses be

made whole for all missed rest periods and meal periods. Local 141 requests an

identification and verification of claims procedure similar to that ordered by

Arbitrator Levak in Sacred Heart Medical Center. The Union asserts the liability

period should be consistent with state law and that the Employer’s willful nonpayment of wages for missed rest periods justifies an award of double damages

to nurses identified as claimants. The Union also requests the Arbitrator to direct

the Hospital to conduct an audit of payments reported of missed meal and rest

period claims for the same period; and that the results be shared with the Union

to ensure compliance with its payment obligations.

C. The Arbitrator’s Remedy

In deciding upon a remedy, I have considered the record as a whole and

the arguments of the parties. In terms of affirmative relief, Washington law does

not require an Employer to schedule rest and meal periods at a specific time.

See ES.C. 6 #5, #11. Additionally, based upon my conclusions about my

authority with respect to staffing/safety I do not find it proper to order the Hospital

to provide adequate coverage for the transfer of patients in transfer situations.

I also do not find it necessary or appropriate to award other specific

affirmative relief as detailed by the Union. I have attempted to make my findings

60

and conclusions clear. Instead, I find a general cease and desist order to be

sufficient. As explained below, I will order certain affirmative acts in connection

with compensatory relief.

With respect to compensatory relief, I find that make whole relief is

warranted. I recognize that exact amounts may be difficult to determine; but this

alone it not a reason to deny such relief. See Elkouri and Elkouri at 12ll;

Kennewick General Hospital and UFCW Local 141 at 29. In accord with the

language of the Article 7.5 and Wingert, I will order the Hospital to compensate

the nurses for missed rest and meal periods at each nurse’s appropriate rate of

pay, with no interest.

I agree with the Employer that the appropriate time period must be

consistent with the grievance procedure: commencing from 14 days prior to the

filing of the Cutler grievance (March 9, 2006) to the present date. I also

determine that an identification/verification process similar to that awarded by

Arbitrator Levak in Sacred Heart Medical Center is reasonable and appropriate

based upon the facts and circumstances of this case. I will order such an

approach with one additional component.

With the individual claim forms provided by the Employer to each affected

nurse, I will order the Employer to provide a written statement of the Hospital’s

contractual and other legal obligations concerning meal and rest periods. This

serves two purposes: (1) to guide the nurses in the actual or estimated number

of rest and meal periods missed; and (2) as an education device about meal and

rest periods. I will order the Employer to prepare this written description and

61

provide a copy to the Union for its review. The parties shall meet and confer

about its content before it is provided to the affected nurses with the claim form.

Also, in order to accomplish compensatory relief, I will order the Hospital

to perform an audit of payments of reported meal and rest period claims for the

same time period identified above and to share the results with the Union. I

recognize that the Hospital has already conducted an investigation and audit. I

do not intend my award to be unnecessarily duplicative. The parties shall meet

and confer to determine if an entirely new audit is necessary. The parties may

extend the time lines I have set forth in this award by mutual agreement.

As agreed by the parties, I will retain jurisdiction for a period of ninety (90)

days to resolve issues, if any, regarding the remedy awarded. Pursuant to Article

16 of the Agreement, the fees and expenses of the Arbitrator will be shared

equally by the parties.

62

In the Matter of the Arbitration )

)

between )

)

THE UNITED STAFF NURSES UNION )

UNITED FOOF AND COMMERCIAL )

WORKERS, LOCAL NO. 141 )

(Union) ) AWARD

) GRIEVANCES OF DAWN

) CUTLER AND DAN

) HALSEY

And ) FMCS #060807-58589-7

)

PROVIDENCE ST. PETER HOSPITAL )

(Employer) )

Having carefully considered all evidence and argument submitted by the parties

concerning this matter, the Arbitrator concludes that:

1. The Hospital violated the meal and rest period provisions of the

parties’ Collective Bargaining Agreement.

2. The grievances are sustained for the reasons set forth in the

Arbitrator’s opinion.

3. The Hospital shall cease and desist from violating the meal and

rest period provisions of the Agreement.

4. All affected registered nurses in the Union’s bargaining unit,

those in employ of the Employer from March 9, 2006 to date,

shall be compensated for missed block 15-minute rest periods

and missed meals at the registered nurse’s appropriate rate,

without interest. Within 21 days of its receipt of this Opinion and

Award, the Employer shall provide individual claim forms to all

registered nurses in its employ during the period from March 9,

2006 to date. On those claim forms registered nurses shall,

within 14 calendar days, declare under penalty of perjury, the

actual or estimated number of block 15-minute rest periods and

30-minute meal periods missed since March 9, 2006 to date.

The Employer shall then, within 21 calendar days, audit those

claim forms, shall arrive at the amount due each registered

nurse and shall compensate them. The Employer and the

Union shall meet and confer over any remaining disputes

concerning the amount due the registered nurse.

5. With each claim form provided to a registered nurse, the

Employer shall include a written statement setting forth its

contractual and legal obligations concerning meal and rest

periods. The Employer shall provide a copy of this written

statement to the Union 10 days prior to providing the claim

forms to the registered nurses so that the Union may review

this statement and meet and confer with the Employer about its

content.

6. The Employer is ordered to perform an audit of payments of

reported meal and rest period claims for the same time

period identified in paragraph 4 above and share the results

with the Union. The parties shall meet and confer to

determine if an entirely new audit is necessary.

7. The Arbitrator will retain jurisdiction for ninety (90) days to

resolve issues, if any, regarding the remedy awarded.

8. Pursuant to Article 16 of the Agreement, the fees and

expenses shall be borne equally by the parties.

Respectfully submitted,

Kathryn T. Whalen

Arbitrator

Date: July 24, 2008

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