Arbitration Summary LAP 13-01 (Article 6)



Agency/Contract:    Language Access Providers (LAP) 11-13
Contract Article(s):    Art. 6, Economic Compensation
Arbitrator:        Gary Axon
Action:    Contract Violation-Failure to Pay One Hour Minimum
Outcome:    Grievance Sustained
Decision Date:    05/30/2013

The issue in this case was whether the employer violated the contract when the State compensated the interpreter for 30 minutes rather than a full hour on five separate occasions where the patient was seen by the health care provider prior to the scheduled appointment time.

The union in this case argued the employer violated the contract by failing to pay the one hour minimum.  In each of the five instances, the grievant appeared either before or at the scheduled appointment time, but the health care provider had unilaterally chosen to see the patient before the scheduled appointment and before the grievant arrived.  The union argued that under Article 6.3 (A), the grievant was entitled to the minimum payment of one hour for each instance. The union argued this was not the case of a “no-show” since all the medical appointments occurred.  This was also not a cancellation, since each patient was in fact seen by the provider. In addition to the remedy of the one hour minimum pay for each instance, the union requested that the State encourage health care providers to use the interpreter services they requested. The union disputed the State’s contention that management lacked authority over the health care providers. The State is bound by the contract language, and liable for any breach of contract that may occur.

The employer argued that the specific appointments did not occur, and therefore under the contract, the grievant was properly paid at the contractual “no-show” rate of 30 minutes for each missed appointment. The employer argued the union’s contractual interpretation was incorrect. The State asserted for the one hour minimum to apply, there must be a face-to-face encounter between the interpreter and the patient. The State also argued it was unable to legally pay for full services not rendered under the federal regulations governing the Medicaid program which in part funds the interpreting costs. The State was only able to get a 30-minute minimum payment by special permission from the federal oversight agency, and it was absolutely never contemplated that a one hour minimum payment would be made when no interpreting service was provided.  Lastly, the State argued the union had tried to bargain a one hour minimum for cancellations, and now the union was trying to get in arbitration what it could not get in bargaining.

The arbitrator determined that the State violated Articles 6.1 and 6.3 when it failed to compensate the grievant with one hour minimum pay for each of the five medical appointments at issue.  The arbitrator said the contract language was clear and unambiguous. The grievant had accepted each appointment, timely appeared, but through no fault of her own, was prohibited from fulfilling her obligation.  The arbitrator found that none of the five appointments was cancelled, nor was there any double booking. The arbitrator found that the grievance turned on an interpretation of the CBA, not federal law, and dismissed the State’s argument regarding federal regulations prohibiting the remedy requested by the union. The arbitrator also found that the contract envisioned the participation of all three parties to the appointment, and the State was bound to comply with the contract, regardless of the conduct of medical providers. The arbitrator granted the grievance and ordered that the grievant be paid the remaining thirty minutes due for each of the five appointments.

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