28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Greyhound Food Management, Inc. and Hotel Employees and Restaurant  Employees Union, Local 2 
Date: May 20, 1988 
Arbitrator: Luella E. Nelson 
Citation: 1988 NAC 102

 

In the matter of arbitration between:


Greyhound Food Management, Inc.,

                           and

Hotel Employees & Restaurant Employees Union, Local 2,

 

 

 

Seniority

LUELLA E. NELSON, Arbitrator

 

                                                                                            


ARBITRATOR'S
OPINION AND AWARD

           This Arbitration arises pursuant to Agreement between HOTEL EMPLOYEES & RESTAURANT EMPLOYEES UNION, LOCAL 2 ("Union"), and GREYHOUND FOOD MANAGEMENT, INC. ("Em­ployer"), under which LUELLA E. NELSON was selected to serve as Arbitrator and under which her Award shall be final and binding upon the parties.
         
Hearing was held on January 14 and 18, 1987, in San Francisco, California.  The parties stipulated that all evidence in this dispute would be presented by the employees involved; that neither the Union nor the Employer would present evidence or argument at the hearing; and that no briefs would be filed.  All of the employees affected by the dispute appeared and presented evidence.

ISSUE

          Pursuant to the parties' stipulation, the Arbitrator has the authority to determine the relative seniority of the Bar­tenders.

RELEVANT SECTIONS OF AGREEMENT

     ARTICLE XXXVI [1]

SENIORITY

          Section 1.  In the event that the Employer finds it necessary to lay off employees due to slackness of business, such layoffs shall be on the basis of seniority, i.e., the employee on duty within his job classification, in the establishment, having the shorter period of continuous service with the Employer, shall be laid off before any other employee having a longer period of continuous service in the job classification.  When an employee has been laid off, the Union must be notified immediately and an opportunity shall be given for joint investigation by the Employer and the Union.

          ...

          Section 4.  In the event that an employee who, within sixty (60) calendar days of his promotion, transfer or filling a vacancy desires to return to his former job classification, or is deemed not qualified to hold the new position, he shall be returned to his former classifi­cation at the then current wage scale for the job classification without loss of seniority.

ARTICLE XLII

COMBINATION JOBS

          Section 1.  Except as provided in Article XXVI hereof, when an employee occupies a position combining two or more classifica­tions in any day the employee shall be paid for that day at the rate of pay for the highest classification.  This shall not apply to relief for meal periods nor to employee [sic] for whom combination scales are fixed in this Agreement.

          ....

 FACTS

BACKGROUND
         
The Employer provides concessions services at a number of locations, including the Louise M. Davies Symphony Hall, the San Francisco War Memorial Opera House, and the Herbst Theater, all in San Francisco.
[2]  This dispute involves the relative senior­ity of four of the Bar­tenders at the Opera House and Herbst Theater.
         
Historically, the Symphony Hall employees have had a separate senior­ity list.  A dispute exists concerning whether the Opera House and Herbst Theater shared a single seniority list at all times since 1980, when the Employer extended its operations to that facility.  The current manager testified that a single senior­ity list existed for the two houses, and he will use a single seniority list hence­forth.  The former manager testified that the Herbst and Opera House were separate units for seniority pur­poses, but that the Herbst Bartender automatically had the right to fill openings at the Opera House.  At least one of the four most senior Bartenders made the move from the Herbst Theater to the Opera House prior to March 1984.
         
Generally employ­ees who have moved from one classification to another have lost their senior­ity in the prior classifi­cation as a result.  However, at least one very senior employee has been permitted to move between the two types of Server--Food & Drink Server, and Champagne & Irish Coffee Server--in lieu of layoff.
         
The busiest time of year at the Opera House is during the fall opera season, when the Employer employs nine Bar­tenders.  Outside that season, it generally employs five Bar­tenders, although more may be employed for special events; the remainder are laid off.
[3]
THE SENIORITY DISPUTE

         
No dispute exists concerning the relative seniority of the four most senior Bartenders.  Three of the four employees involved in this dispute claim to be fifth in seniority; the fourth claims to be sixth, whereas two of the disputants would place him eighth.  The dispute breaks down to a competition between those employees who came up through the ranks versus those who were hired off the street.

Six principal personnel are involved in this case:

Nancy Garcia - Bartender (promoted through the ranks)
Tom North - Bartender (promoted through the ranks)
Jim Dariotes - Bartender (hired off the street)
Gus Lekas - Bartender (hired off the street)

Phil Parashis - Manager until fall 1987
Hal Corbinook - Manager since fall 1987; Assistant Manager in 1981-82

          The Path to Bartender Through the Ranks
         
Garcia and North were hired as Candy Persons in 1974 and 1980, respective­ly, and worked their way up through the ranks to Server before performing Bartender work.  North claims the earliest Bartender seniority date, of February 4, 1983, the date when he was first paid for filling in as a Bartender.  Garcia claims a Bartender senior­ity date of November 24, 1983, the first date when she was paid as a fill-in Bartender, but also claims that she was wrong­fully passed over for Bartender work when North was first allowed to perform it.

         
At the time of his hire, North was told that the philosophy of the Employer was to promote from within.
[4]  From the begin­ning, he made it known to management that he sought training and promotion to Bar­tender.  He again raised the issue of training with Parashis following one employee's promo­tion to Bartender.  In response, he was permitted to get "exposure" by working with the Bartender in the Dress Circle beginning in 1981; he was also allowed to fill in for absent Bartenders at the Opera House.[5]  Begin­ning on February 4, 1983, North was paid as a Bar­tender on the days when he filled in, but not when getting exposure in the Dress Circle.  Thereafter, he worked approximately one or two days per month as a Bar­tender, and the rest of his time as a Server.
         
When the Bartender at the Herbst Theater transferred to the Opera House in early 1984, Parashis offered the Herbst Theater Bar­tender position to North, who turned it down.  Parashis did not offer the job to Garcia.
         
Parashis testified that he told North he would lose his Server seniority after ninety days, but if he took the position he would get the next Opera House Bartender post.  According to Parashis, North turned down the job because he would earn more as a Server at the Opera House.  North claims that Parashis told him he would lose his Opera House seniority because the Herbst Theater had a separate seniority list.
[6]
         
North began working regularly as a Bartender at the Opera House during September 1985.  During off seasons, he continued to work at the Opera House as a Server.
         
Garcia worked as a Server both at the Opera House and at the Curran Theater.
[7]  She also made it known to management that she wanted to be a Bar­tender.  When she ob­served that North was getting train­ing as a Bar­tender, she requested and received the oppor­tunity to do the same.  As with North, she received Bartender pay when filling in, but not when get­ting exposure on the Dress Circle.  Garcia was first paid as a Bartender for working on a fill-in basis on November 24, 1983.
         
Following the hiring of three new Bartenders and North's assignment to regular Bartender work in September 1985, Garcia complained to an Assistant Manager, Rudy, that she was being passed over.  Thereafter, Rudy offered her a Bartender position in a newly-added bar station on a one night per week basis, with the stipula­tion that she would lose her senior­ity in her old classification after ninety days.  She accepted the position on that basis.
[8]  As it turned out, she worked as a Bartender every night during the fall opera season.
         
Following the end of the opera season each year, Garcia worked primarily as a Server at the Opera House and at the Curran Theater.  From time to time, she also served as Assistant Manager at the Curran Theater during off season.
         
No other employees have been promoted to Bartender since Garcia began working as such.  Neither North nor Garcia filed grievances concerning the Employer's hiring or training practices.  The shop steward testified that he was aware that Parashis was passing over employees to hire from outside, but that he did not request the Union to intervene because he did not believe the Union would do anything to remedy the problem.

         
The Path To Bartender From The Street
         
With one exception, all Bar­tenders were hired directly from outside before 1985.  When North turned down the Herbst Theater Bartender position, Parashis hired Lekas to fill it beginning March 1984.  Following his hire, Lekas worked only as a Bar­tender--in the Opera House during each fall opera season, and at the Herbst Theater during off season.

         
Dariotes was hired as a Bartender at the Opera House in September 1985, shortly before North began working regularly as a Bartender.  Like Lekas, he moved between the Opera House and the Herbst Theater, depending on the season, working only as a Bar­tender. 

        CONTENTIONS OF THE EMPLOYEES
         
The arguments concerning seniority for Lekas and Dariotes are rela­tively straightforward.  Both argue that their seniority dates from their hire because they have worked only in the Bartender classification.  They further argue that, because North and Garcia worked as Bartenders only on a fill-in basis before 1985, those employees had no continuous seniority in the Bartender classifica­tion before 1985.

         
North's and Garcia's arguments fall in two categories.  The first is a set of equitable arguments based on their overall seniority with the Employer.  In this regard, both believe that the Employer should have promoted them to Bartender before hiring from the outside.  North addition­ally contends that the Employer changed the rules mid-game by merging the Herbst Theater and Opera House seniority lists after leading him to believe that he would have to give up his Opera House seniority in order to work as a bartender at the Herbst Theater.  Garcia further asserts that her greater overall seniority with the Employer entitled her to promotion to Bartender ahead of North.
         
North additionally advances an alternative interpretation of the concept of continuous seniority in the classification.  He argues that he listed himself as a Bartender in the Union's records beginning in 1981, and posits that he was, in fact, a Bartender from the date when he was first paid as such.  He further argues that his work as a Server was done while on layoff from his primary job as a Bartender, and therefore does not constitute an interrup­tion of his Bartender seniority.  In this regard, he notes that the Agreement does not prohibit employees from working in two separate classif­ications, and that other senior employees are permitted to work in other classifications during layoff.
         
Garcia relies on Corbinook's statement of the Employer's policy.  According to Corbinook, in light of the Employer's policy of promoting from within, it was an arbitrary decision not to promote Garcia and North when openings occurred.  Garcia and North had no choice but to work as Servers during off seasons, and were not given the information necessary to decide whether to be on the Bartender or Server seniority list.
         
Finally, North argues that Lekas' and Dariotes' seniority at the Herbst Theater should not be merged with their Opera House seniority.  In this regard, he notes that the Herbst Theater is not mentioned in the Agreement and reiterates his claim that the Herbst was considered a separate house with separate seniority under the prior manager.

OPINION

PRELIMINARY MATTERS
         
The focus of this dispute, in the employees' eyes, is not seniority so much as the Employer's prior hiring and promotion practices.  The testimony of the in-house employees and their witnesses includes overtones of sex discrim­ination in promotions and/or cronyism in hiring.  Parashis' testi­mony suggests an alternative explanation--that the in-house employees chose not to change classifica­tions because, with their seniority as Servers, they were entitled to work more hours and make more money by remaining on the Server seniority list than by moving to the Bartender list.
         
Despite the consider­able evidence presented on all sides of these conten­tions, the Arbitrator is without authority to resolve them.  No grievance has been filed over the Employer's hiring and promo­tion policies or practices, and the parties' stipulation does not encompass these matters.  The stip­ulation simply permits the Arbitrator to consider evidence on relative seniority and establish a seniority list for Bar­tenders.
         
In a contract interpretation case such as this, the Arbitrator's first inquiry must be into the language of the Agreement itself.  If that lan­guage is clear and unambiguous, then the Arbitrator must give effect to the intent expressed in that language without regard to extrinsic evidence.  If, however, it is unclear or ambiguous, then the Arbitrator can consider such matters as past practice to divine the parties' intent.

         
Finally, some evidence was presented regarding the Employer's alleged practice concerning the retention of seniority in more than one classifica­tion.  This Opinion and Award is not intended to, nor can it, govern that practice.  That issue was not presented for decision, and the Arbitrator makes no finding concerning what the Employer's actual practice was or what the Agreement required.

THE MERITS

          The key to this case is the meaning of the term "seniority" in Section XXXVI, to-wit: the employee on duty within his job classification, in the establish­ment, having the shorter period of continuous service with the Employer, shall be laid off before any other employee having a longer period of continuous service in the job classifi­cation.

The quoted language is a clear and unambiguous "classification seniority" provi­sion.  Any doubt on this score is resolved by Section 4 of the Article, which preserves seniority in the previous classifica­tion for a period of sixty days following a promotion, transfer, or filling of a vacancy.  Therefore, the employees' relative seniority is defined by their seniority in the Bartender classification.
         
North's claim that his principal classification was as a Bartender beginning with the first date on which he was paid as such is without support factually or contractually.  Whatever his classifica­tion may have been in the Union's member­ship records, the operative event was employment by the Employer in the classif­ica­tion.  Assuming, for the moment, that he actually worked as a Bartender at the Herbst Theater for a period of time in 1982, he thereafter filled in as a Bartender only one or two days per month.  That work record is not suscep­tible to a conclusion that his prin­cipal classifi­cation prior to 1985 was as a Bartender.
         
Similarly, Garcia worked as a Bartender only on a fill-in basis until after Lekas and Dariotes were hired.  There is thus no basis for concluding that she was classified as a Bartender prior to September 1985.
         
The only remaining argument in support of seniority dates for North and Garcia pre-dating September 1985 amounts to the equitable argument described earlier, that they should have been promoted in lieu of hiring off the street (and, in the case of Garcia, that her seniority with this Employer entitled her to promotion to Bartender earlier than North).  As noted above, the merits of these arguments cannot be resolved in this forum.  With the case in this posture, the earliest Bartender seniority date that can be applicable to either is the date on which each began regularly working as a Bartender.
         
Neither Lekas nor Dariotes exper­ienced a break in service as Bar­tenders after their hire.  Like at least one more senior Bartender, each was initially hired at the Herbst but moved to the Opera House in the fall season.  Lekas and Dariotes therefore have greater continuous service in the Bar­tender classifica­tion than North and Garcia.  Based on the dates when each employee began regularly perform­ing Bartender work and their continuous service in the classification thereafter, Lekas must be deemed to be fifth, and Dariotes sixth, in Bartender senior­ity.
         
Follow­ing Dariotes' hire, North and Garcia ultimately did receive regular Bartender work during the fall opera season, coupled with work in other classifications during off seasons.
[9]  As between North and Garcia, the relative Bartender seniority is established by the same means as in weighing their seniority against that of Dariotes and Lekas--i.e., the date on which each first began performing Bartender work on a regular basis.  Since North regularly began performing such work before Garcia, he is seventh in Bartender seniority, and Garcia is eighth.
         
The Arbitrator recognizes the concerns over the process by which Bartenders were hired and promoted.  The remedy, if any, for any variation from policy must come through collective bargain­ing, rather than through this arbitration.  Although this Opinion and Award establishes a Bartender seniority list under the current Agree­ment, it is well estab­lished that the parties are generally free to modify the Agree­ment if it no longer suits their needs.
[10]

AWARD

          The involved employees' relative order of seniority is as follows:  Gus Lekas, Jim Dariotes, Tom North, and Nancy Garcia.

              DATED:  12/23/88                                                                                   

                                                          LUELLA E. NELSON - Arbitrator

        [1]    The Article in question is denominated Article XXVI in the Agreement.  However, it appears immediately after Article XXXV in the Agreement, and another Article XXVI, entitled "Days Off," appears eight pages earlier.  For purposes of this Decision, the applicable provision will be referred to as Article XXXVI.

        [2]    For administrative purposes, the Employer considers the Herbst Theater to be part of the Opera House, and its concessions contract with the City of San Francisco treats them as one facility.  Although the Agreement lists only the Symphony Hall and the Opera House, the Herbst Theater was also covered by the Agreement at all relevant times since 1980.

        [3]    For personal reasons, some former Bartenders, who otherwise would have had sufficient seniority to continue working during off seasons, chose to be laid off rather than work during off season.  Virtually all of the employ­ees are primarily employed elsewhere, and moonlight at the Employer.

        [4]    Corbinook agrees that the Employer's policy has always been to promote from within.  No written records were kept of requests for training or promotion.

        [5]    North testified that he also worked as a Bartender at the Herbst Theater for approximate­ly one month in 1982, but ceased doing so when told that the Herbst had a separate senior­ity list and that he would have to give up his Opera House seniority if he wanted to continue working at the Herbst.  The Employer's payroll records do not reflect payment at the Bartender rate for that work. 

        [6]    North's testimony is supported in part by that of fellow employee Catania, who testified that under Parashis the Herbst was considered to have a separate seniority list, whereas Corbinook has informed employees that he deems it to be part of the Opera House seniority list.

        [7]    Employees at the Curran Theater are not represented by the Union.

        [8]    Parashis testified that Rudy never informed him that Garcia had relin­quished her Server seniority.

        [9]    For purposes of this case, it is unnecessary to determine whether North's and Garcia's service in other positions during off seasons inter­rupted their continuous service as Bartenders, or was merely work in a different classification while on layoff from their regular Bartender classifica­tions.  No evidence exists that any other Bartenders currently employed were hired after the fall of 1985 and claim greater seniority than these two employ­ees.

    [10] Ford Motor Co., 23 LA 296, 297 (Shulman, 1954).

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 



LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028