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Food Management, Inc. and Hotel Employees and Restaurant Employees Union,
Date: May 20, 1988
Arbitrator: Luella E. Nelson
Citation: 1988 NAC 102
the matter of arbitration between:
Food Management, Inc.,
Employees & Restaurant Employees Union, Local 2,
LUELLA E. NELSON, Arbitrator
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.
Pursuant to the parties' stipulation, the Arbitrator has the authority to
determine the relative seniority of the Bartenders.
RELEVANT SECTIONS OF AGREEMENT
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.
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.
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.
This dispute involves the relative seniority of four of the Bartenders
at the Opera House and Herbst Theater.
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.
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.
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
At the time of his
hire, North was told that the philosophy of the Employer was to promote from
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.
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.
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.
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.
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,
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.
As it turned out, she worked as a Bartender every night during the fall
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
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
The Path To
Bartender From The Street
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
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
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.
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.
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.
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.
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.
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.
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 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.
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
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.
Dariotes' hire, North and Garcia ultimately did receive regular Bartender work
during the fall opera season, coupled with work in other classifications during
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.
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.
The involved employees' relative order of seniority is as follows:
Gus Lekas, Jim Dariotes, Tom North, and Nancy Garcia.
LUELLA E. NELSON - Arbitrator
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