1992 NAC 101 Tynan Lumber Company and Teamsters Local 890

Title: Tynan Lumber Company and Teamsters Local 890
Date: January 21, 1992
Arbitrator: Allen Pool
Citation: 1992 NAC 101

Salinas, California 93901

(408) 758-2401

ISSUE

Did the Company violate the Collective Bargaining Agreement, specifically Section 23, by failing to return the Grievant, Peter Padilla, to work following his release from disability? If so, what should be the remedy?

RELEVANT CONTRACT PROVISION

Section 23 - Seniority

Seniority is defined as a length of an employee's continuous service with the Company from the date of his last employment in his classification of employment. Where a company has more than one (1) lumberyard within the jurisdiction of this Agreement, there shall be a separate seniority list for each location. Seniority shall not apply to an employee until he shall have been employed by the Company for a period of One Hundred Twenty (120) days. Once acquired, seniority shall be effective from the date of hire.

In the event of layoff of an employee in a classification covered by this Agreement, subject to qualifications and ability to perform the work required, the last man hired shall be the first man laid off; in the event of a rehire, the last man laid off shall be the first man rehired. This provision shall not apply in the event the layoff is in excess of twelve (12) months.

BACKGROUND

The Company operates two lumberyards in the Central Coast region of California, one in Salinas and the other in Monterey. (The two cites are about 20 miles apart.) Each lumberyard has a separate Yard Manager who is responsible for its operation and the hiring and supervision of employees. This grievance arose out of the Monterey yard. The Yard Manager in Monterey has been an employee of the Company for 41 years. The Assistant Manager there has been a Company employee for approximately ten (10) years. The current Agreement with the Union was signed by the representatives on September 14, 1989 with the effective date being retroactive to July 1, 1989.

The Grievant was hired by the Company on September 27, 1987 into the classification of Yardman. Employees in this classification perform a variety of jobs. In the yard, at varying times, they will switch between mill work and driving a forklift. In addition, they are frequently called upon to drive a truck on the public roadways.

The Grievant and his wife began construction of a house, in Carmel Valley sometime in July, 1990. As result of a bid by the Company on the building materials, which included an employee discount, they were purchasing materials from the Monterey yard.

On October 8, 1990 the Grievant asked to be released from work early to take his dog to be put to sleep. On his way to Carmel Valley, he was involved in a serious auto accident and taken to the hospital. His wife testified that she telephoned the Assistant Manager the next morning at about 8:00 a.m. and told him that her husband was in the hospital and would not be coming to work. She also testified that she told the Assistant Manager that her husband's condition at that time was unknown. The Assistant Manager testified that he learned of the Grievant's accident from another Yardman and does not remember receiving a call from the Grievant's wife. However, he did testify that it is possible that she did make such a call (TR 57:L 1-19).

The Company, at this point, hired a person to replace the Grievant. Joint Exhibit No. 2, the Monterey Yard Seniority List, does not show the replacement's date of hire. However, is clear that he was hired to replace the Grievant within a few days, perhaps only one day, after the Grievant's accident. The Company stated that the Grievant was in "very dire straits in the hospital and would probably not make it....Based on that information, we replaced" the Grievant (TR 13:L 15-23).

The Yard Manager testified that the decision to replace the Grievant was his. He said he had heard from one of the Yardmen that the Grievant "had a very bad accident and they didn't know whether he was going to pull through or not". He also said that he never received any calls from any member of the Grievant's family. The Yard Manager testified "We were extremely busy. We couldn't get along with less help than we had, so we had to hire somebody else to take his place" (TR 51-52).

The Grievant spent about six to eight weeks in the hospital in a bodycast and in traction. When he did leave the hospital and go home, he continued to stay in traction and under the care of a private nurse. It was three to four months before he became ambulatory. During a significant portion of this time, he was under sedation.

He continued to progress in his recovery and his physician told him he could eventually return to work. In the middle or latter part of July, 1991, the Grievant telephoned the Assistant Manager to inform him that his physician would soon release him from the medical disability and would he be able to return to work. The Assistant Manager told the Grievant he had been replaced but would be given consideration if there was a future opening (Company Brief 3; L 6-7). The Grievant, believing he was still an employee with seniority for one year after going on disability, went to the Union for advice. The Union's Business Agent advised him to wait until the physician issued the medical release to return work and then take it to the Company.

The physician signed the Grievant's medical release on September 4, 1991. It stated: "Peter may return to a trial of full employment in his usual and customary work on 9/4/91." The Grievant took the release to the Company's office in Salinas and presented it to the Vice-President, Diane Spencer. She told the Grievant that the Monterey Manager and Assistant Manager considered him as having been replaced and that the matter was being turned over to the Company's attorney. A grievance was filed which proceeded to this Arbitration.

Position of the Union

The Union contends that the Company's refusal to return the Grievant to work upon release by his physician violated his senior ity rights under the Agreement. The language contained in Section 23 entitles employees who are off work for any nonculpable reason, including disability, to return to their jobs within twelve months. The Grievant's absence from work to recover from his injuries constituted a "layoff" within the meaning of Section 23. The Agreement protected his seniority rights to work over junior employees at the point he was physically able to return to his job.

The term "layoff" is unqualified and encompasses periods of no work because of disability as well as lack of work opportunities because of business reasons. The generic meaning of the term is not restricted to an economic layoff. It is all inclusive. The unqualified use of the term in Section 23 is significant in that the agreement does not expressly address disability absences, leaves of absence, or other non-disciplinary periods off the job. The proper interpretation of "layoff" in these circumstances is that it encompasses all of the various kinds of absences from work that do not terminate the employment relationship.

The Company has a past practice of permitting employees to return to work after prolonged absences attributable to ill health. This practice has given specific meaning to Section 23 of the Agreement.

The Company's response to the Grievant's disability signaled to him that his job rights were secure. The Company did nothing to terminate the Grievant. Neither the Grievant or the Union received any written communication concerning his status. The Company records show no change in his status. Throughout the Grievant's absence, the Company treated him as continuing to have an employment relationship. In contract terms, he was simply "laid off," awaiting a release to return to work.

It is respectfully submitted that the Company should be found to have violated the Agreement by not returning the Grievant to work on September 4, 1991. He should be returned to work with full back pay and benefits.

Position of the Company

The Company did not have the duty to protect the Grievant's seniority under the Agreement following his off-the-job accident and injury. Section 23 only refers to a description of seniority and then seniority protection in a layoff situation. Neither an on-the- job injury or an off-the-job injury is considered a layoff within the meaning of labor relations. Section 23 protects an employee's seniority for twelve months only in the event of a layoff which is in the control of the Company's hands. An accident is not in control of anyone's hands. If the Agreement was meant to provide seniority protection in the event of an accident, it would certainly be mentioned in the Agreement.

The two other situations where long-term employees received their jobs back after an illness are distinguishable from the current case. In those cases, is was not necessary to replace them. In the current case, it was necessary to the business to replace the Grievant. Following the accident, the Company was so busy that they could not get along without additional help.

In the absence of clear and convincing language within the four corners of the Agreement, the Company is under no legal requirement to protect the Grievant's seniority to the extent that another employee would have to be laid off and have his seniority violated. It is respectfully submitted that the grievance be denied.

DISCUSSION

The dispute in this case starts with the interpretation of the term "layoff". More specifically, how inclusive is the term? Is the term limited to a separation from work solely because of a slowdown in business or is the term also used to include a separation from work for other reasons, such as a medical recovery or even a suspension? A review of the literature relative to labor relations reveals that the term is frequently applied to a separation from work for reasons other than a slowdown in business (Roberts Dictionary of Industrial Relations, 3rd Ed., p. 377).

The intent of the parties is also reflected in their own language. Section 23 of the Agreement was specified by the parties, but it does not stand alone. It must be read within the context of the whole Agreement. In doing so, it becomes clear that the parties did not limit the term "layoff" to mean only a separation from work because of a slowdown in business.

A reading of Section 26 reveals that the Company can temporarily layoff an employee from work by suspension. The language also permits the employee, while on suspension, to retain his status as an employee and to retain his seniority, albeit no seniority shall accrue during the suspension period. Even more material to the current case, the language used mandates that the employee, as prescribed by the section, "shall be reinstated immediately if the suspension period is less than twelve (12) months" (emphasis added). Given the language of Section 26, I have to assume that the Company would be required to immediately reinstate the suspended employee even if the Company had hired a replacement because of business needs, and perhaps even lay off the the replacement.

In the current case, the Company contends that the Grievant was not on layoff during the disability period following his accident, and that the term layoff was not meant to include anything other than a separation from work because of the lack of opportunity for work. In other words, the Grievant, separated from work because of an accident, was not on layoff and therefore had no seniority and could be permanently replaced by the Company. In effect, the Grievant was accorded less protection than an employee on layoff from a suspension. This interpretation is not persuasive. The language of the Agreement, as reflected in Section 23 and Section 26, and the Company's own past practice does not condone this kind of inequity.

The Company, on two previous occasions, treated periods of separation from work for medical disabilbity as layoffs with no loss of seniority. The Company argued that these two cases were distinguishable from the current case in that the Company did not, because of business necessities, need to replace either of the men. The testimony of the Yard Manager did not support this. With respect to the Grievant, the Manager testified that they were "extremely busy" and could not get along without hiring someone to take his place (TR 52:L 4-26). He used the same or a similar phrase to describe the business climate at the time the other two employees were ill. At the time Dominic Sampaolo was ill, he testified that they were "extremely busy", but did not replace him because it would take too much time to train somebody (TR 53:L 5-22). In the case of Robert Laughton, who was "laid off" because of his health, the business climate was described as "very busy" but he was not replaced because they had enough people to do the job (TR 54:L 1-12).

These two previous situations are not distinguishable from the current case. The argument that there was a "need to replace" in the current case, but not with the previous cases is not persuasive. In all three cases, the business climate was described as "extremely busy" or "very busy". How the "need to replace" standard was applied was arbitrary. Imagine, had the Company decided not to replace the Grievant because it took too much time to train somebody as was done with Mr. Sampaolo, he would have retained his seniority. Had the Company decided not to replace the Grievant because they had enough people to do the job as they did with Mr. Laughton, he would have retained his seniority. Had the Company decided to hire a temporary replacement, which they could have done, he would have retained his seniority. Instead, the Company decided to hire a permanent replacement and thereby deprive the Grievant of his right to return to work. How the Company arrived at the decision to replace the Grievant was arbitrary.

The Company acknowledged that the Grievant was not discharged. The record also shows that he received no communication from the Company informing him there was any change in his employment status. There was nothing to indicate that he could not return to work on removal from the disability until shortly before his release by his physician. It was also acknowledged that there is nothing in the Company's records to document a change in his employment status. Furthermore, if I am to accept the testimony of the Manager and the Assistant Manager completely, it shows that the Company's response to the Grievant after his accident and during his period of disability was based not on information acquired from members of the Grievant's family, his physician, or the hospital. It was based on information gained from conversations with employees in the yard. This would also be arbitrary on the part of the Company. A decision which takes away an employee's seniority should be based on something more reasonable. A primary purpose of any seniority provision is to protect employees from arbitrary management actions.

It is the Arbitrator's conclusion that the Company violated the Agreement by failing to return the Grievant to work following his release from medical disability on September 4, 1991. He was, according the Agreement and in keeping with the Company's past practice, on layoff during his period of disability and therefore retained his seniority for twelve (12) months as specified in Section 23.

AWARD

The Company did violate the Collective Agreement, specifically Section 23, by failing to return the Grievant, Peter Padilla, to work following his release from disability on September 4, 1991.

THE REMEDY

The Company is directed to immediately reinstate the Grievant to his former position without lossof seniority and with backpay and other economic benefits provided in the Agreement, less outside earnings, for all time he would have worked had he not been denied a return to work from the date of his medical release, September 4, 1991, to the date of his reinstatement pursuant to this Award.

Implementation of the remedy is remanded to the parties with the Arbitrator retaining jurisdiction in event the partiescannot agree.

Date: _______________________ _______________________________

C. ALLEN POOL, ARBITRATOR

July 17, 1992

Duane B. Beeson, Esq. Andrew Church, Esq.

BEESON, TAYER, & BODINE ABRAMSON, CHURCH & STAVE

Attorney for Teamsters Attorney for Tynan Lumber Co.

Local 890 17 East Gabilan Street

235 Pine Street, Suite 1200 Salinas, CA 93901

San Francisco, CA 94104-2701

Re: TYNAN LUMBER COMPANY

$11.65 $11.90 $12.15

(b) All classifications to be fully interchangeable.

(c) The Company has the right to require all employees to become familiar with and qualified for all jobs set forth in (a) above.

SECTION 26 - DRIVERS' INSURANCE

(a) Any employee may be suspended in the event his/her driving record results in insurance premiums to the Company that are in excess of normal premiums and which are attributable to the classification of the employee as an "assigned risk". At employee's option, the employee may retain his/her employment provided he/she authorizes the Company to deduct from his/her salary an amount equivalent to the difference between the new "assigned risk" insurance premium and the normal insurance premium previously charged. The suspension shall terminate upon verification by the employee that he/she is insurable under the normal insurance policy. The employee shall be reinstated immediately if the suspension period is less than twelve (12) months. If the suspension period is more than twelve (12) months, the employee shall be entitled to the next available vacancy for which he/she is qualified. No seniority shall accrue during any suspension period.

(b) It shall be a condition of employment that any driving employees be insurable under the Company's auto and truck insurance policy. In the event an employee becomes uninsurable as determined by the insurance company then serving the Company, then in such event the employee shall be terminated.

(c) In the event an employee is subject to the provisions set forth above, the employee, Company and Union shall meet before any suspension or termination, to discuss other employment within the Company, taking into account seniority and qualifications.

The position of the Company is stated very clearly in Joint Exhibit No. 1, the February 27, 1992 letter to the Grievant from the Company's vice president, Dianne Spencer. The letter stated:

"It is the position of Tynan Lumber Co. that back wages from 9/4/91 to 2/4/92 are not due you because you did not possess a valid drivers license and were not considered employable.

Section 12, paragraph (c) states that `The company has the right to require all employees to become familiar with and qualified for all jobs set forth in (a).'

Paragraph (a) states: Journeyman: Forklift Drivers, truck drivers, lumber stackers, pilers and tally men.

Without a valid drivers license you were not insurable as required in section 26 and could not legally operate a motor vehicle. You were put back to work on February 4, 1992 after reinstating your drivers license on February 3, 1992."

The Company's position is not supported by the language in Sections 12 and 26, Company policy, nor Company practice. Neither Section 12 or 26, separately or in combination, give the Company the right to arbitrarily terminate an employee. Section 26 is very definitive in specifying that uninsurable driving employees shall be terminated. (emphasis added) However, that right is limited. Article 26(c) requires that the Company shall meet with the employee and the Union "before any suspension or termination, to discuss other employment within the Company, taking into account seniority and qualifications." (emphasis added) This was not done.

During the period of time in question, September 4, 1991 to February 3, 1992, the Grievant did not possess a valid driver's license and was therefore uninsurable. That fact, in and of itself, did not render the Grievant unemployable. More to the point, the language in Article 26(c) clearly prohibited the Company from arbitrarily declaring the Grievant to be unemployable for that period of time.

The Company policy requiring all classifications within Journeyman to possess a Class B driver's license was not established until on or about January 1, 1992. Even then, actual possession was not required until April 1, 1992 (Transcript: pages 117-122). The April 1st deadline postdated both the Agreement violation in September, 1991 and my Award dated January 21, 1992. These dates do not support Company's argument regarding policy.

The Company's treatment of the Grievant was not consistent with current practice. The evidence record revealed that at the time of the continuation hearing, June 17, 1992 there were some Journeyman employees who did not possess a valid Class B driver's license and who were still employed. The Company's Vice President testified that three employees in the Salinas yard still do not have a license, that they are in a training program. When asked if the Company intended to terminate these employees, she answered, "No". When asked if the Company was going to give them jobs that do not involve driving if they can't get licenses, she answered, "That has not been determined. We haven't given them the chance to get the driver's licenses" (Transcript: pages 123-125). It is my conclusion that with respect to its treatment of the Grievant, the Company acted in an arbitrary manner and in a manner not consistent with existing Company practice.

For the reasons given above, it is my decision that there was no reasonable justification for denying the Grievant immediate reinstatement following my Award of January 21, 1992 nor for denying him backpay.

AWARD

The Company failed to comply with the arbitrator's Award of January 21, 1992 when it refused to immediately return the Grievant to work and when it denied him backpay.

The case is remanded to the parties to establish the correct amount of backpay for the period of time from September 4, 1991 through Monday, February 3, 1992. As requested, the Arbitrator retains jurisdictions to resolve any dispute in this matter.