International Association of Firefighters, Local 1590 v. City of Wilmington

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
INTERNATIONAL ASSOCIATION OF )
FIREFIGHTERS, LOCAL 1590, )
)
Appellant, )
v. ) C.A. No. 9830-VCP
)
CITY OF WILMINGTON, )
)
Appellee. )
MEMORANDUM OPINION
Date Submitted: January 22, 2015
Date Decided: May 15, 2015
Jeffrey M. Weiner, Esq., LAW OFFICES OF JEFFREY M. WEINER PA, Wilmington,
Delaware; Attorney for Appellant International Association of Firefighters, Local 1590.
Tara M. DiRocco, Esq., CITY OF WILMINGTON LAW DEPARTMENT, Wilmington,
Delaware; Attorney for Appellee City of Wilmington.
PARSONS, Vice Chancellor.
This action is an appeal from a decision of the Public Employee Relations Board
(“PERB”). The dispute is over whether the City of Wilmington (the “City”) and the
International Association of Firefighters, Local 1590 (the “IAFF”) collectively bargained
for the City to pay extra holiday compensation to all firefighters for Mayor-declared
holidays or only to those firefighters who actually worked on the Mayor-declared
holidays.
In 2013, when the City refused to pay additional holiday pay to those firefighters
who did not work on a Mayor-declared holiday, the IAFF filed an unfair labor practices
charge against the City with PERB. After a hearing, PERB‟s Executive Director found
that the collective bargaining agreement was unambiguous and that the agreement neither
required nor addressed whether the City must compensate firefighters who did not work
on a Mayor-declared holiday. The full PERB then reviewed the decision and affirmed,
after which the IAFF filed this appeal.
Having considered the evidentiary record and papers in this matter, I conclude that
PERB‟s decision is not supported by substantial evidence and is contrary to law.
Specifically, I conclude that the collective bargaining agreement requires the City to pay
eight hours of additional pay to those firefighters who were not scheduled to work on the
Mayor-declared holiday and were not otherwise disqualified from receiving such
compensation.
1
I. BACKGROUND
A. Facts1
1. The Mayor declares a holiday
On December 17, 2012, Wilmington Mayor James M. Baker announced that
Monday, December 24, 2012, would be a Mayor-declared holiday. Accordingly, the
Mayor issued Executive Order 2012-4, which provided:
On Monday, December 24, 2012, all regular employees who
are considered non-essential (i.e., not required to work by
their commissioner or Department Head) shall be excused
from work with pay; and
Employees who are required to work on Monday, December
24, 2012, shall be appropriately compensated in accordance
with Chapter 40 of Wilmington City Code and/or their
respective collective bargaining agreements . . . .2
Thus, for most civilian employees—i.e., non-collective bargaining employees—
December 24 was a day off with holiday pay regardless of whether they were scheduled
1
The underlying facts are not in dispute. City‟s Answering Br. 4. The factual
background, unless otherwise noted, is drawn from the record created in the PERB
proceedings. Citations to the record are represented by “R. #”, where “#” is the
page reference. When appropriate, documents with internal pagination will
include a citation to both the internal pagination and the record, e.g., “PERB
Decision #, R. #.”
2
R. 670.
2
to work that day.3 If a civilian employee did work on December 24, she earned holiday
pay plus twice her normal hourly rate for the hours worked.4
In contrast, firefighters collectively bargain with the City over their wages and
terms of employment. Article 5 of the IAFF‟s collective bargaining agreement (“CBA”)5
covers holiday pay. The first paragraph of Section 5 provides:
The following and such other days as the Mayor may
designate shall be holidays with pay: New Year‟s Day;
Martin Luther King Day; President‟s Day; Good Friday;
Memorial Day; the Fourth day of July, known as
Independence Day; the first Monday in September, known as
Labor Day; Veteran‟s Day; Thanksgiving Day, whenever
proclaimed; Christmas Day; and the day of the general
election as it biennially occurs.6
The second paragraph of Section 5.1 provides for repercussions for those
firefighters who have unexcused absences on or around the time of the holiday. That
paragraph states in pertinent part:
Employees shall not be paid for a holiday (8 hours pay) if
they are absent from work on the employee‟s last scheduled
workday before the holiday, the holiday (if scheduled to work
for the holiday), or the employee‟s next scheduled workday
following the holiday unless excused . . . . The stipulations in
3
Wilm. C. § 40-332(b) (“Any eligible employee whose regularly scheduled day off
falls on a holiday shall be entitled to eight hours of straight time holiday pay.”).
4
Id. § 40-332(c) (“Any eligible employee who is required to work on a [designated
or Mayor-declared holiday] shall be compensated at double his/her regular rate for
time actually worked on the holiday. In addition, such employees shall receive
eight hours of straight time holiday pay.”).
5
The CBA is located at R. 461-516.
6
CBA § 5.1.
3
this paragraph are not applicable if the employee actually
works on the holiday.7
In recent years, including under the current CBA, holiday pay (except for Mayor-
declared holidays) has been incorporated into the firefighters‟ salary.8 Thus, even if a
firefighter had to work on a holiday listed in Section 5.1—for example, Christmas Day—
his pay would remain the same.9 If the Mayor declares a holiday, however, that pay is
not reflected in the firefighter‟s base salary, and an additional payment is made for that
holiday.10 Sections 5.2 and 5.3 provide for, among other things, increased pay for those
firefighters who are scheduled to work on a Mayor-declared holiday. Section 5.2(a)
covers fire suppression personnel:
Whenever civilian employees are excused from work by an
Executive Order of the Mayor, or for any weather emergency
for any day not covered by ordinance or statute the
firefighters shall receive payment at straight time rates for
7
Id.
8
PERB Decision 5, R. 863 (“The firefighters work a considerably different shift
schedule from all other City employees. Their schedule consists of one twenty-
four (24) hour period on duty, followed by seventy-two (72) hours off. Perhaps
due in part to this unusual schedule and the essential nature of firefighter
responsibilities 24 hours a day, 365 days each year, at some point prior to July 1,
2010, holiday pay for firefighters was rolled into the base salary calculations.”);
see also Gimbel Test. R. 742 (“Q: And any day that the mayor designated as a
holiday was not rolled into salary? A: No.”). The record, in part, is drawn from the
testimony of Martha Gimbel, the Director of Labor Relations and Classification
for Wilmington, who testified before the Executive Director. Such testimony is
cited as “Gimbel Test. R. #.”
9
Gimbel Test. R. 737 (“Q: What do firefighters who are working [New Year‟s Day]
receive . . . ? A: They do not receive anything extra. It is treated as a regular
workday.”).
10
Id. at R. 742.
4
those who are required to report for duty for that tour. No
firefighter shall be compensated for more than 16 hours (8
hours per unit as defined in Article 3) in any one tour. Any
member who was scheduled on vacation on a holiday not
designated on Section 5.1 shall receive 16 hours pay at
straight time.11
Thus, when a firefighter works on a Mayor-declared holiday, he earns his usual salary
plus additional pay at his normal hourly rate for the hours he actually worked. The
additional pay for fire suppression employees is capped at eight hours per twelve-hour
period, and further capped at sixteen hours per twenty-four-hour period. Similarly, if a
firefighter was scheduled to work the Mayor-designated holiday, but was authorized to
use vacation time, he would earn his normal salary plus 16 hours of additional pay.
Section 5.3 operates in a similar fashion to Section 5.2, but applies to
administrative personnel, instead of fire suppression personnel. Section 5.3(a) provides:
Whenever civilian employees are excused from work by an
Executive Order of the Mayor, or for any weather emergency
for any day not covered by ordinance or statute the
firefighters shall receive payment at straight time rates for
those who are required to report for duty for that day. No
firefighter shall be compensated for more than [sic: missing
terms] (8 hours per unit as defined in Article 3). Any member
who was scheduled on vacation on a holiday not designated
in Section 5.1 shall receive 8 hours pay at straight time rate.12
11
CBA § 5.2(a). “Unit” and “Tour” are defined in Article 3 of the CBA. A “unit” is
defined as twelve hours, either 8:00 a.m. to 8:00 p.m. or 8:00 p.m. to 8:00 a.m. A
tour is defined as a 24-hour period from 8:00 a.m. to 8:00 a.m. the next day. CBA
Art. 3.
12
CBA § 5.3(a).
5
Although nearly identical to Section 5.2(a), administrative personnel appear to be able to
earn between eight and ten hours of additional pay, instead of sixteen, under Section
5.3.13 Finally, both parties emphasize the final paragraph of Section 5.3, which provides,
“This section shall apply only to those employees of the Fire Department who are
scheduled to work during the day/tour or portion of the day/tour covered by the Executive
Order.”
2. The Executive Director’s decision
In early 2013, the City provided holiday pay to the forty firefighters who worked
on December 24, 2012, either under Section 5.2(a) or 5.3(a).14 The City did not pay
anything other than their normal salary, however, to those firefighters who were not
scheduled to, and did not, work the holiday. Near the end of January 2013, the IAFF
wrote to the City requesting that it pay those firefighters who had not worked on
December 24. When the City refused, the IAFF amended an earlier-filed grievance—
which otherwise is not relevant here—to add an unfair labor practice charge. The City
denied that charge. On July 9, 2013, a PERB Hearing Officer found that there was
probable cause for the charge to proceed.
13
Gimbel Test. R. 739 (“If I was scheduled to work [the December 24 holiday] and
did work it, I would have been paid, under Section 5.2, 16 hours or, 5.3, anywhere
between 8 and 10 [hours], depending on whatever their [sic] shift is . . . .”).
14
Thirty-seven firefighters earned sixteen hours of additional pay under Section
5.2(a). Two firefighters—who worked only twelve hours—earned eight hours of
additional pay, also per Section 5.2(a). And one firefighter earned eight hours of
additional pay under Section 5.3(a). Exec. Director‟s Op. 15, R. 824.
6
On October 15, 2013, a hearing was held before PERB‟s Executive Director. The
parties viewed the issue as being purely legal. The only witness, Martha Gimbel, the
City‟s Director of Labor Relations & Classification, testified for the purpose of
“establish[ing] a timeline.”15 On May 13, 2014, by written opinion, the Executive
Director held that the City was not obligated to pay the firefighters who did not work on
the December 24 holiday. As part of her decision, the Executive Director found that the
CBA was “clear and unambiguous on its face.”16 Under her interpretation, Section 5.1‟s
first paragraph defined eleven specified holidays and any other days the Mayor might
designate as “holidays with pay,” and Sections 5.2 and 5.3 defined how firefighters
would be compensated for Mayor-designated holidays.17 Ultimately, the Executive
Director determined that “[a]dditional compensation for firefighters who [were] not
required to work is neither addressed nor required in Article 5.”18
3. PERB’s decision
On May 19, 2014, the IAFF appealed to PERB. A hearing was held on June 18,
2014. PERB reviewed the Executive Director‟s decision for error that was “arbitrary,
capricious, contrary to law, or unsupported by the record.” 19 On June 24, 2014, in a
written opinion, PERB affirmed the Executive Director‟s decision. PERB found that
15
Exec. Director Hr‟g, R. 699.
16
Exec. Director Op. 17, R. 826.
17
Id. at 16-17, R. 826-27.
18
Id. at 17, R. 826.
19
PERB Decision 4, R. 862.
7
Section 5.1 established those days that were holidays with pay and that Sections 5.2 and
5.3 “explicitly set[] forth how firefighters (both those working suppression and those in
administration) are to be compensated if they are required to work on a holiday.” 20
PERB concluded that “[t]he record is devoid of any evidence to support [the IAFF]‟s
interpretation of Article 5, specifically the second paragraph of section 5.1. There is no
evidence in the record as to how this provision has been applied in the past or that the
parties discussed this possible scenario during negotiations.”21 Ultimately, PERB held
that the IAFF failed to establish that the Executive Director‟s decision was arbitrary,
capricious, contrary to law, or unsupported by the record.22
B. Procedural History
On June 27, 2014, the IAFF appealed PERB‟s decision to this Court under 19 Del.
C. § 1609. The IAFF appealed on the grounds that: (1) PERB erred as a matter of law;
(2) PERB erred as a matter of fact; (3) PERB acted in a manner that was arbitrary and
capricious; and (4) PERB‟s decision is not supported by substantial evidence.23 After the
appellate briefing was completed, I heard argument on January 22, 2015 (the
20
Id. at 5, R. 863.
21
Id. at 5-6, R. 863-64 (“The charge, however, fails to establish that the City
instituted a unilateral change to the status quo, because the contract does not, on its
face, support the interpretation offered by [the IAFF]. There is no need to go
beyond the plan [sic: “plain”] language of the contract unless it is ambiguous on
its face. This language is not.”).
22
Id. at 7, R. 865.
23
IAFF‟s Notice of Appeal 2.
8
“Argument”). This Memorandum Opinion constitutes my ruling on the IAFF‟s appeal
from PERB‟s June 24, 2014 decision.
C. Parties’ Contentions
In support of its appeal, the IAFF principally argues that: (1) the PERB decision
renders portions of Article 5 meaningless; and (2) the PERB decision frustrates the
CBA‟s intended purpose of mirroring Chapter 40‟s compensation for civilian employees.
The City contends the PERB decision is supported by substantial evidence. In
response to the IAFF, the City argues that the CBA is unambiguous and the City
therefore has to provide holiday pay only to those firefighters who worked on December
24 or previously had arranged to take vacation time on that day. Furthermore, the City
contends that the IAFF‟s interpretation of the CBA renders other portions of Article 5
meaningless and that Chapter 40 is irrelevant to how firefighters are compensated for
holidays under the CBA.
II. ANALYSIS
A. Standard of Review
The Court reviews legal issues decided by PERB de novo, but with a degree of
deference because of PERB‟s expertise in labor issues. The Court accepts PERB‟s
factual findings as correct if they are supported by substantial evidence.24 Substantial
24
Smyrna Police Empls. Ass’n v. Town of Smyrna, 2007 WL 3145286, at *3 (Del.
Ch. Oct. 17, 2007).
9
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”25
For the IAFF to succeed on this appeal, it must show that, contrary to PERB‟s
determination, the City violated 19 Del. C. § 1607(a)(5) by failing to negotiate a term of
the CBA in good faith. One way a party may violate Section 1607(a)(5) is by unilaterally
changing a term of a collective bargaining agreement that the parties otherwise would be
required to negotiate.26 Wages is an example of a term that is a mandatory subject of
collective bargaining.27 Thus, if the CBA required the City to pay additional holiday pay
to all firefighters for Mayor-declared holidays, the City would have violated Section
1607(a)(5) by refusing to do so.
Whether the CBA requires the City to pay all firefighters holiday pay for Mayor-
declared holidays is a question of contract interpretation. “Delaware law adheres to the
objective theory of contracts, i.e., a contract‟s construction should be that which would be
understood by an objective, reasonable third party.”28 The goal of contract interpretation
is to give contract terms the effect that the parties intended, without rendering any term
25
Id.
26
See Am. Fed’n of State, Cty. & Mun. Empls. v. State, Dep’t of Health & Soc.
Servs., 61 A.3d 620, 632 (Del. Ch. 2012) (noting that a party violates Section
1307(a) when it unilaterally changes a term subject to mandatory collective
bargaining); see also PERB Decision 6, R. 864 (citation omitted).
27
See 19 Del. C. § 1302(e) & (t) (employees who may collectively bargain may
negotiate “terms and conditions of employment,” which includes “matters
concerning or related to wages, salaries, [and] hours.”).
28
Salamone v. Gorman, 106 A.3d 354, 367-68 (Del. 2014) (citation omitted)
(internal quotation marks omitted).
10
meaningless.29 Thus, when a contract term is unambiguous—that is, the term is not
reasonably susceptible to more than one meaning—courts give effect to the term‟s plain-
language meaning. If a contract is unambiguous, a court may not consider extrinsic
evidence.30 Whether the CBA is ambiguous is a question I review de novo. But, to the
extent that I find the contract ambiguous, I must defer to PERB‟s interpretation so long as
it is supported by substantial evidence.31
B. The CBA’s Provisions
1. Section 5.1 unambiguously provides for holiday pay for Mayor-declared
holidays
The IAFF contends that part of Section 5.1‟s first paragraph is rendered
meaningless if, as the City argues, only those firefighters who worked the Mayor-
declared holiday, December 24, 2102, earn holiday pay. The relevant portion of Section
29
E.g., Sonitrol Hldg. Co. v. Marceau Investissements, 607 A.2d 1177, 1183 (Del.
1992); Delta & Pine Land Co. v. Monsanto Co., 2006 WL 1510417, at *4 (Del.
Ch. May 24, 2006) (“It is, of course, a familiar principle that contracts must be
interpreted in a manner that does not render any provision „illusory or
meaningless.‟”(quoting O’Brien v. Progressive N. Ins. Co., 785 A.2d 281, 287
(Del. 2001))).
30
Compare Eagle Indus., Inc. v. DeVilbiss Health Care, Inc., 702 A.2d 1228, 1232
(Del. 1997) (“If a contract is unambiguous, extrinsic evidence may not be used to
interpret the intent of the parties, to vary the terms of the contract or to create an
ambiguity.”), with Salamone, 106 A.3d at 369 (“Where a contract is ambiguous,
the interpreting court must look beyond the language of the contract to ascertain
the parties‟ intentions.” (internal quotation marks omitted)).
31
Wilm. Firefighters Ass’n, Local 1590 v. City of Wilm., 2002 WL 418032, at *6
(Del. Ch. Mar. 12, 2002) (“To the extent that the parity provision is ambiguous
and subject to more than one reasonable interpretation, this court must respect the
PERB‟s choice of one of those interpretations so long as its decision is supported
by substantial evidence.”).
11
5.1 provides: “The following [explicitly identified holidays] and such other days as the
Mayor may designate shall be holidays with pay . . . .”32 The IAFF asserts that, based on
the City‟s interpretation, the phrase, “and other days as the Mayor may designate” could
be deleted from Section 5.1 because Sections 5.2(a) and 5.3(a) already provide for
additional pay for those employees who are scheduled to work on the Mayor-declared
holiday. Additionally, the IAFF argues that the second paragraph of Section 5.1 would
be meaningless if firefighters who are not otherwise authorized to be absent, e.g., because
of an excused absence or because they are non-essential employees, have to work the
Mayor-declared holiday to earn holiday pay.
I conclude that the plain language of Section 5.1 requires holiday pay for the
firefighters even if they were not scheduled to work the Mayor-declared holiday. The
first paragraph of Section 5.1 provides that Mayor-declared holidays will be “holidays
with pay.” And, the second paragraph provides that:
Employees shall not be paid for a holiday (8 hours pay) if
they are absent from work on the employee‟s last scheduled
workday before the holiday, the holiday (if scheduled to work
for the holiday), or the employee‟s next scheduled workday
following the holiday unless excused for one of [three
specified] reasons . . . . The stipulations in this paragraph are
not applicable if the employee actually works on the
holiday.33
A necessary precondition of the firefighters forfeiting their holiday pay, therefore, would
seem to be that the firefighters are entitled to holiday pay in the first place. The plain
32
CBA § 5.1.
33
Id. (emphasis added).
12
language of Section 5.1 thus appears to require that firefighters not scheduled to work on
a Mayor-declared holiday still would receive eight hours pay so long as they worked on
their scheduled days immediately preceding and following the holiday or else had an
excused absence for those days. Thus, for example, if a firefighter‟s regularly scheduled
tours fell on December 23 and 27, and then the Mayor declared December 24 to be a
holiday, then that firefighter would receive eight hours pay for the December 24 holiday
contingent only upon that firefighter working his scheduled shifts on December 23 and
27.
I am not persuaded by the City‟s arguments to the contrary. First, the City argues
that Section 5.1‟s first paragraph defines the holidays for which firefighters are
guaranteed a full paycheck, and the second paragraph provides how they could lose a
portion of that full paycheck.34 The City contends that because holiday pay was
incorporated into the firefighters‟ salary sometime before the adoption of the current
CBA, Section 5.1 serves only as a penalty.35 Because I find Section 5.1 unambiguous,
however, extrinsic evidence, such as the parties‟ prior dealings, is not relevant to the
contract interpretation issue before me. Even if I did consider such evidence, however,
the record indicates that Mayor-declared holidays were not incorporated into the
firefighters‟ pay, which undermines the City‟s position.36
34
City‟s Answering Br. 20.
35
Id. at 19.
36
Gimbel Test. R. 742 (“Q: And any day that the mayor designated as a holiday was
not rolled into salary? A: No.”).
13
Second, the City argues that paying those firefighters who did not work on a
Mayor-declared holiday, whether or not they were scheduled to work that day, would
render the phrase “for those who are required to report for duty”37 in Section 5.2(a) and
5.3(a) meaningless, because the firefighters would receive the same holiday pay
regardless of whether they worked.38 I disagree. Section 5.1 establishes a baseline of
holiday pay for a Mayor-declared holiday of eight hours, regardless of whether the
employee works. By working on the holiday, however, the firefighter could earn more
than eight hours pay, but only up to the caps established by Sections 5.2 and 5.3. Section
5.2(a), for example, states: “No firefighter shall be compensated for more than 16 hours
(8 hours per unit . . .).” Section 5.3(a) contains a similar provision.39 Accordingly, my
interpretation of Section 5.1 does not render any terms in Sections 5.2 or 5.3 superfluous.
37
“Whenever civilian employees are excused from work by an Executive Order of
the Mayor, or for any weather emergency for any day not covered by ordinance or
statute the firefighters shall receive payment at straight time rates for those who
are required to report for duty for that tour.” Section 5.2(a) (emphasis added).
38
See City‟s Answering Br. 21 (“Sections 5.2 and 5.3 can be thought of as a bonus
for Firefighters who actually worked on a Mayor-Declared Holiday.”); see also
Arg. Tr. 21-22.
39
It is not clear how many hours more than eight an administrative employee would
earn because the CBA is missing words. Section 5.3(a) reads, in relevant part:
“No firefighter shall be compensated for more than [sic] (8 hours per unit . . . ).”
Still, the parenthetical contemplates the possibility of multiple units. For example,
the fire suppression personnel who worked two twelve-hour units on December
24, 2012, could receive sixteen hours of holiday pay. Section 5.2(a) explicitly
states as much. Section 5.3(a) may contemplate a lower maximum cap on holiday
hours for administrative personnel, but I need not reach that issue. See supra note
13 (describing Gimbel‟s testimony that administrative personnel could receive
eight to ten hours of holiday pay).
14
2. The last paragraph of Article 5 does not alter the City’s obligations under
Section 5.1
The City argues that Article 5‟s final paragraph restricts holiday pay to only those
firefighters who work the Mayor-declared holidays. The last paragraph in Article 5
provides: “This section shall apply only to those employees of the Fire Department who
are scheduled to work during the day/tour or portion of the day/tour covered by the
Executive Order.” The City contends that this paragraph applies to both Sections 5.2 and
5.3, and therefore restricts holiday pay for Mayor-declared holidays to those firefighters
scheduled to work. The IAFF counters that the paragraph, by its own terms, applies only
to Section 5.3.
The last paragraph of Article 5 of the CBA admittedly is not a model of clarity.
That paragraph potentially could have three different meanings. First, under a literal
interpretation, the paragraph is limited to “This section”—i.e., Section 5.3. Indeed, the
final paragraph appears under the heading for Section 5.3. If the last paragraph was
meant to apply to other sections, the parties easily could have made that clear. For
example, instead of using the phrase “This section,” the parties could have referred to
“These sections” or “This article” or some other phrase that would have made it
applicable to a larger part or all of Article 5.
Second, the parties could have intended the concluding paragraph to apply to both
Sections 5.2 and 5.3. The paragraph explicitly applies to “those employees of the Fire
Department who are scheduled to work during the day/tour or portion of the day/tour.”
Although Sections 5.2(a) and 5.3(a) employ nearly identical language, Section 5.2(a)
15
defines the shift for fire suppression personnel as a “tour,” while Section 5.3(a) refers to
the shift for the administrative personnel as a “day.” The last paragraph‟s use of
language encompassing both of the defined terms “tour” and “day” could suggest that the
paragraph was meant to cover both Sections. If the last paragraph was intended to apply
to only administrative personnel, then using “day” instead of “day/tour” would have
sufficed. Moreover, the last paragraph of Section 5.3, which also is the last paragraph in
Article 5, uses “employee”—a defined term, which includes fire suppression
employees—instead of limiting the paragraph to just “administrative personnel.”40
Finally, the paragraph could be read to apply to the entirety of Article 5, although
neither party advanced such a construction. The final paragraph refers solely to days or
tours “covered by the Executive Order.” By limiting the paragraph to days or tours
“covered by the Executive Order,” the paragraph conceivably could cover both Sections
5.2(a) and 5.3(a). The prefatory clauses in each of those sections provides, “Whenever
civilian employees are excused from work by an Executive Order of the Mayor . . . .” It
also conceivably could cover Mayor-declared holidays in Section 5.1 because the Mayor
may designate a holiday only by issuing an executive order. That seems unlikely,
however, because Section 5.1 covers holidays generally and, unlike Sections 5.2 and 5.3,
makes no specific reference to an Executive Order.
I find that the third interpretation is unreasonable and conflicts with at least
Section 5.1 for other reasons as well. For example, the three situations in which holiday
40
See CBA Art. 3.
16
pay would be forfeited under the second paragraph of Section 5.1 are “not applicable if
the employee actually works on the holiday.”41 One of those situations is if the employee
is absent from work without a valid excuse on the holiday, if she was scheduled to work
that day. The final paragraph of Section 5.3 states, in part, that it applies only to those
employees “scheduled to work during the day/tour . . . covered by the Executive Order.”
The other two forfeiture conditions in Section 5.1 would make little sense if the entire
Article 5 applied only when an employee was scheduled to work on a day covered by an
Executive Order, because those conditions purportedly apply to all holidays listed in
Section 5.1.
This leaves the first two interpretations. Arguably, both are “reasonable”—at least
to the extent each suffers from similar shortcomings—and the provision is ambiguous.
The first interpretation is the more literal and structurally intuitive, but the “day/tour”
term is partially superfluous, because Section 5.3 twice speaks in terms of administrative
personnel working on a specific “day,” whereas Section 5.2 twice states that fire
suppression personnel work on a “tour.” The second interpretation, however, requires
ignoring that the final paragraph literally says “This section” and is arranged as the third
paragraph under the heading of Section 5.3. Regardless, this poorly drafted provision
does not affect my determination that Section 5.1 provides for holiday pay for those
firefighters not required to work on a Mayor-declared holiday.
41
CBA § 5.1.
17
A well-settled canon of construction provides that more specific provisions govern
over the more general.42 Sections 5.2 and 5.3 do not apply only to Mayor-designated
holidays. Rather, Sections 5.2 and 5.3 provide for additional pay for firefighters
scheduled to work “[w]henever civilian employees are excused from work by an
Executive Order of the Mayor, or for any weather emergency for any day not covered by
ordinance or statute.”43 A Mayor-declared holiday, therefore, is just one of the possible
situations covered by those two Sections. Additionally, by their terms Sections 5.2 and
5.3 cover the situations when firefighters “are required to report for duty for that tour” or
“that day.” The provisions are silent on the status of firefighters who are not required to
report for duty.
In contrast, Section 5.1 defines which days of the year are holidays with pay and
enumerates how the firefighters could lose pay for those holidays. The section includes
Mayor-declared holidays among the holidays with pay. Although Sections 5.2 and 5.3
are more specific provisions, controlling situations in which a firefighter is required to
report for duty, they do not otherwise affect the status of firefighters who were not
scheduled to work on a Mayor-declared holiday. Pay for firefighters in the latter
category is governed by the terms of Section 5.1. This interpretation arguably still might
leave the meaning of the final paragraph of Article 5 somewhat unclear, but there is no
42
DCV Hldgs., Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005) (“Specific
language in a contract controls over general language, and where specific and
general provisions conflict, the specific provision ordinarily qualifies the meaning
of the general one.”).
43
CBA §§ 5.2(a) & 5.3(a).
18
reasonable construction of Article 5 of the CBA under which Sections 5.2 and 5.3—or
the inartfully drafted final paragraph of Article 5—would deny the holiday pay granted to
firefighters by the first paragraph of Section 5.1 in the situation of a Mayor-declared
holiday. As I construe Section 5.1 and Article 5, therefore, the only way a firefighter
who does not work on a Mayor-declared holiday loses the additional eight hours of
holiday pay is via one of the forfeiture conditions set forth in the second paragraph of
Section 5.1.
Everyday experience also supports my conclusion. It is generally accepted that
employers compensate employees for holidays by either giving them the day off with pay
or paying them extra for working—colloquially, “the pay or the day.”44 The City‟s
argument runs contrary to this common practice in addition to being inconsistent with the
terms of the CBA.
In sum, I conclude that the only reasonable interpretation of Article 5 is that
Section 5.1 provides for an additional eight hours of pay for those firefighters who were
not scheduled to work on December 24, 2012. In that regard, I also find that while
44
The IAFF‟s counsel provided an illustrative example (the numbers used are
merely for illustrative purposes). At the beginning of the year, any employee is
expected to work 260 days and earn X amount of dollars. X would include all of
the holiday pay for the designated holidays. When the Mayor declares an
additional holiday, however, one of two things could happen. An employee could
work 259 days and still earn a salary of X dollars, or an employee could work 260
days and earn X dollars in salary plus eight hours of holiday pay. The issue here
centers on the fact that those firefighters who worked the holiday earned X plus (at
least) eight hours pay, while the firefighters whose normal day off fell on
December 24 also would have worked 260 days but only earned X dollars. Those
firefighters who did not work, therefore, received no benefit from the Mayor-
declared holiday; they received neither “the pay” nor “the day.”
19
Sections 5.2 and 5.3 establish specific rules for paying those firefighters who were
required to work on December 24, they do not affect the holiday pay mandated by
Section 5.1.45
C. The PERB Decision Is Not Supported by Substantial Evidence
Although I have reached a conclusion inconsistent with PERB, I am mindful of the
deference that should be given to its factual determinations if they are supported by
substantial evidence.46 Again, substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”47 Here, however, the
disputes were limited to PERB‟s legal conclusions. PERB‟s “conclusions of law are
reviewed on a de novo basis, but with a deferential bent, which recognizes the expertise
of the PERB in adjudicating disputes in the field of labor law.”48 Above I concluded, as a
matter of law, that Section 5.1 of the CBA unambiguously provides that those firefighters
who do not work on Mayor-declared holidays are entitled to holiday pay unless one of
45
Wilmington City Code § 40-10(b) states that if a CBA provision “is silent in
regard to matters addressed in this chapter, the terms of Chapter 40 shall apply.”
Wilm. C. § 40-10(b) (2015). Chapter 40 provides that employees earn eight hours
of holiday pay regardless of whether they actually worked the Mayor-designated
holiday. Id. § 40-332(b) (“Any eligible employee whose regularly scheduled day
off falls on a holiday shall be entitled to eight hours of straight time holiday
pay.”). Thus, if the CBA had been “silent” on holiday pay, the firefighters would
have been entitled to eight hours of pay under Chapter 40, which is the same result
I have reached by analyzing the CBA. But, because I have concluded that the
CBA does address this situation and mandates a particular result, I do not consider
the CBA to be “silent” on this issue, and therefore I need not address Chapter 40.
46
Smyrna Police Empls. Ass’n, 2007 WL 3145286, at *3.
47
Id.48
Id.20
the forfeiture conditions applies. By contrast, PERB concluded that Section 5.1
established covered holidays, whereas Sections 5.2 and 5.3 of the CBA set forth how
firefighters are to be compensated if they are required to work on a holiday. PERB‟s
legal conclusions are incorrect. As previously discussed, Section 5.1 not only defines
what days are holidays, but also requires that firefighters be paid for Mayor-declared
holidays. Sections 5.2 and 5.3 cover, among other scenarios, firefighters who work on
Mayor-declared holidays, and establish rules for paying those individuals.
In this case, there is no factual evidence that justifies deferring to PERB‟s contrary
legal conclusion. The only evidence in the record was the testimony of Martha Gimbel,
the City‟s Director of Labor Relations and Classification, who testified before the
Executive Director. Gimbel stated that, in recent years, holiday pay—with the exception
of Mayor-designated holidays49—was incorporated into the firefighters‟ salaries.50
Gimbel also testified that “what [Section 5.1] has meant through the years is that if a day
is marked or designated as a day off, this is guaranteeing that you will receive pay for that
day so you will have a 40-hour check; not a 48, 40.”51 The City relies heavily on this
portion of Gimbel‟s testimony.52
I find Gimbel‟s testimony that Section 5.1 guarantees all firefighters the equivalent
of 40-hours pay per week to be inconsistent, however, with her later testimony about how
49
Gimbel Test. R. 742.
50
Id. at R. 738.
51
Id. at R. 734.
52
City‟s Answering Br. 22.
21
the City used to compensate firefighters for holidays.53 Before holiday pay was
incorporated into the firefighters‟ base salaries, firefighters used to be paid once, in
November, for all of the holidays that year.54 Thus, while Gimbel did testify that Section
5.1 ensured “a 40-hour check; not a 48, 40,” it appears that before the City began
incorporating holiday pay into salary, the City effectively did pay firefighters for more
than 40 hours for weeks that included a holiday, but that that money was paid in one
lump sum. Additionally, because Mayor-designated holidays are in the same clause as
the designated holidays, and no evidence was presented that they ever were incorporated
into firefighters‟ base salaries before the adoption of the CBA, the historic usage of
Section 5.1 is neither relevant nor determinative of the contract interpretation issue before
me. Thus, there is no substantial evidence to support PERB‟s interpretation of Article 5.
The CBA‟s relevant provision, Section 5.1, is unambiguous: I conclude, as a matter of
law, that it requires that those firefighters who did not work on December 24, 2012, be
paid eight hours of pay.
III. CONCLUSION
For the reasons stated in this Memorandum Opinion, PERB‟s decision is reversed.
The CBA requires the City to pay eight hours of pay to those firefighters who were not
53
Gimbel Test. R. 738.
54
Id. (“Many years ago, [the firefighters] were compensated for working the holiday
by receiving what‟s the infamous holiday paycheck in November where they were
paid for however many holidays there were that year, 13 or 14.”).
22
scheduled to work on the December 24, 2012 Mayor-declared holiday. This case is
remanded for further proceedings consistent with this Memorandum Opinion.
IT IS SO ORDERED.
23