Title: Butte-Silver Bow Municipal Government and Butte Teamsters Local 2
Date: July, 1994
Arbitrator: Jack H. Calhoun
Citation: 1994 NAC 103

                STATEMENT OF FACTS

                The Grievant, Daniel Kelly, was hired on May 16, 1991, as a crew supervisor in the Workfare program administered by the Employer.  His duties were to supervise welfare recipients who were required to work in public service cleanup projects.  The work activity included such tasks as picking up trash, boarding up abandoned houses, and cutting weeds.  He used a one-ton, single-axle dump truck designated as "T-22."  When the Workfare program ended in July 1991, Kelly was informed by the Employer that he could continue his employment.

                In mid-August he worked on an alley-paving crew along with Teamster and Laborer union members.  The work consisted of cleaning weeds ahead of a paver.  He also drove the garbage truck during the vacation of the regular driver, who was a Teamster in the bargaining unit.

                During the fall of 1991 Kelly spent time moving library books to a new facility.  He was assisted by inmates from a pre-release program and by National Guard members.  While moving the books, he drove dump truck T-22.  He also used the truck to pick up weeds and trash and to haul them to the landfill.

                During the winter of 1991 Kelly used the dump truck to pick up discarded Christmas trees that were left in alleys.  He also shoveled snow, at times along with Teamsters who were in the bargaining unit.

                In February and March of 1992 Kelly used the dump truck to fill in potholes.  He worked with bargaining unit Teamsters while doing so.  From May to September of 1992 he was assigned to supervise two pre-release inmates who assisted him in taking care of parks and cleaning vacant lots.  He used dump truck T-22 and other trucks that were also used by bargaining unit members.

                In the fall of 1992 Kelly picked up garbage, cleaned lots and alleys, and cut trees, using the dump truck as needed.  During the winter of 1992 he shoveled snow and picked up Christmas trees, at times along with Teamsters, and he picked up trash alone using the truck.  During the early part of 1993 Kelly was assigned to supervise eight or nine youngsters from the human resources program in park maintenance work.  He used the dump truck to haul personnel and material.

                During the fall of 1993 he maintained a park by himself.  He hauled trees, repaired tables, and hauled garbage, using the dump truck.  Along with Teamsters and Laborers, he installed Christmas decorations.

                As a result of a grievance which had been filed earlier, a meeting was held on December 10, 1993, between Union representatives and Employer representatives over the Union's contention that Kelly was doing bargaining unit work under the collective bargaining agreement.  The Employer contended that he was not doing such work.  After the meeting, Kelly was informed by the road foreman, who was one of his supervisors along with the head of the parks program, that he could not drive the dump truck anymore, except on Saturdays.  Thereafter, on Saturdays he used vehicles, including the dump truck, to haul youngsters on probation who assisted him in general cleanup work.  During weekdays from Tuesday through Friday, he performed utility and maintenance work necessary for the maintenance of streets, alleys, and parks.

                Since the grievance meeting, in addition to his general utility work, Kelly has also used a jackhammer to dig all but 10 feet of a 50-foot ditch.  The remainder was finished by a Teamster member and a Laborer member.  He has helped Teamsters pick up Christmas trees by riding along in the truck and assisting as necessary.  He has cleaned and swept sidewalks and medians along with Teamster bargaining unit members.

                From the time he was hired in May of 1991 until December 10, 1993, Kelly was assigned dump truck T-22 to use in his work.  In filling potholes, he drove the truck to a site where a member of the Operating Engineers Union loaded it with material.  He then drove it to the potholes, shoveled the material into the holes, and used the truck to pack it by running back and forth over it.  Such work is done by both Teamsters and Laborers.

                Dump truck T-22 has been used by both non-bargaining unit employees and bargaining unit employees.  Teamster bargaining unit employees also operate large, double-axle dump trucks, large sweepers, flush trucks, and other pieces of large trucking equipment.  Kelly has not operated such equipment for the Employer.

                The position for which Kelly was hired was not budgeted by the Employer as a Teamster position.  He was not told by any Employer representative that he would be a Teamster; to the contrary, he was told he would be a utilityman.  Although the Employer's telephone directory lists Kelly as a Teamster, no official of the Employer authorized such listing.  No other employee doing the same kind of work as that performed by Kelly is a Teamster; however, Kelly is unique in that he is the only hourly employee who works along with Teamsters and Laborers who is not in the bargaining unit.  His wage rate is considerably lower than that of bargaining unit members.  There is no written job description for Kelly's position.

                There are seven craft unions that represent employees who work in the Public Works Department of Butte-Silver Bow Municipal Government.  They include the Teamsters, Laborers, Operating Engineers, Machinists, Painters, Carpenters, and Transit Union employees.  Unions assert jurisdiction over certain pieces of equipment; however, none has claimed dump truck T-22.  While there is some understanding regarding who will operate large equipment, there is no formal list designating which union has which equipment.  Employees are given an opportunity to break in on equipment with which they are not familiar when the occasion arises.

                Teamsters and other craft union workers who function under the supervision of the road foreman generally operate large, complex vehicles such as a 3000-gallon flusher, ten-wheel dump trucks, and a street sweeper.  There is a significant difference between operating a vehicle like T-22 and a ten-wheel dump truck.  While union and non-union employees alike have used T-22, it has been used almost exclusively by supervisors in the Workfare program, none of whom were in the Teamsters bargaining unit.  Kelly is the only hourly employee working for the road foreman and the parks department head who is not a bargaining unit member.

                In May of 1992, after being contracted by the Teamsters Union business representative, Kelly filled out a dues check-off card and turned it in to the Employer to deduct union dues from his pay.  After making the deduction once, the Employer discontinued doing so.

                The parties have an understanding that seasonal employees who work for four months do not have to become members of the Union, although they may do Teamster work.  Kelly's predecessors in the Workfare program did not have to become Teamsters until they worked for more than four months.

                                POSITIONS OF THE PARTIES

The Union

                The Union contends that since Kelly drove vehicles and worked around them, he should be in the bargaining unit and entitled to the wages and benefits provided thereunder.  The recognition, seniority, and other provisions of the collective bargaining agreement show that he should be included.  He is employed on or around trucks, trailers, and other vehicles hauling and carrying merchandise and other materials.  He does service and maintenance work, and he loads and unloads materials.  He also drives trucks and performs as a truck driver's helper. 

                The Employer's own telephone directory designated Kelly as a Teamster, and the argument that he is a utility worker must be rejected, the Union argues.  He performs work set forth in the recognition provision of the contract.

                The Union maintains that the past practice of the parties supports its position.  Other Workfare supervisors who went on to become regular employees became Teamsters.  Kelly is the only employee who is relegated to not having contract protection.  He works side by side with union personnel, yet he is not afforded rights under the agreement.

                Past practice does not have to be absolutely uniform to be binding, the Union argues.  The predominant pattern and practice is controlling even where there have been scattered exceptions to the clearly established pattern.

                Truck T-22 has been continuously used in doing bargaining unit work by employees, the Union contends.  Kelly is licensed to operate commercial vehicles and is not restricted to operating T-22, and he has operated other trucks.

                The meaning of a written instrument is determined not from a single word or phrase, but from the instrument as a whole.  To isolate this case to truck T-22, as the Employer asserts, is without substance, the Union believes.

                There is a close functional integration between Kelly's duties and those of employees in the bargaining unit.  He is supervised by the same supervisor who supervises Teamsters, the Union argues; therefore, he should be in the unit.  The mutuality of interests between him and bargaining unit employees supports the Union position.

The Employer

                The Employer asserts that the Union's claim for jurisdiction over the work performed by Kelly arises from the recognition clause of the agreement.  Management has the sole right to establish new jobs and classifications and, in the absence of contractual restrictions, management should be given considerable leeway to do so.  In the instant agreement, the parties have recognized the unfettered prerogative of the Employer to hire and assign employees and to determine the job classifications and personnel by which to conduct its operations.

                There is no explicit provision in the collective bargaining agreement that the duties performed by Kelly come within the jurisdiction of the Teamsters, in the Employer's view.  The recognition clause does not include any definition of the type of utility, manual labor, and youth‑supervision work being performed by him.  The essence of the clause focuses on employees who are employed on vehicles hauling, carrying, or conveying freight, merchandise or other materials, which Kelly does not do.  Neither is he a service or maintenance employee, nor any of the other category of employee delineated in the recognition clause.

                The job Kelly did when the Workfare program ended was new.  The contract provides no evidence of a job classification identical to or similar to the utility and manual labor work done by him, the Employer maintains.

                Kelly has never been assigned to drive any type of traditionally Teamster-operated vehicle which requires a commercial or special operator's license, or which requires special driving skills or training.  Except when he drove the garbage truck, Kelly has never driven a multi-axle or tandem-axle vehicle with a split transmission.  He has only driven the simple four-speed, single-axle dump truck.

                The Employer argues that while the Workfare program has been eliminated, one of Kelly's primary duties continues to be the supervision of non-union youth in the summertime, work which the Union has not claimed jurisdiction over.  There is still a substantial and direct link between his present duties and those for which he was hired.  The remainder of his work is general utility work of an unskilled nature.  He is not part of a regular Teamster crew, nor is he supervised by anyone who has any unique connection to Teamster activity.

                Article 18 of the agreement is not controlling.  The issue is whether the recognition clause covers Kelly's work.  The fact that his seasonal work ended in 1991 does not mean that the Teamsters Union assumed jurisdiction over his work, the Employer argues.

                The Union has not bargained for the inclusion in the contract of the kind of work performed by Kelly, the Employer holds.  Nor has the Union petitioned the Board of Personnel Appeals for a unit clarification.

                Employer assignment is the most significant factor in determining jurisdictional coverage of competing collective bargaining agreements.  The employer's assignment of work is the most influential factor in deciding jurisdictional disputes.  Absent the existence of established company and industry practice, or agreements between the union and employer, or awards of arbitrators, joint board, or unions in the same or related cases, the assignment made by the employer is determinative of the jurisdiction question.

                The Employer contends that there is no contractual agreement, agency decision, or other lawful assignment of Kelly's work to the Teamsters Union.  The skills and work involved are not those generally associated with the skills and work of Teamsters.

                There is nothing in any agreement, statute, or rule which requires that an employee performing the kind of work performed by Kelly be covered under a collective bargaining agreement, the Employer argues.

OPINION

                The primary focus of this dispute is over the interpretation of the recognition clause in the parties' collective bargaining agreement.  Other provisions of the agreement also alleged by the Union to have been violated are not relevant to the determination of whether the tasks performed by the Grievant fell within the definition of bargaining unit work.  Once the question of whether he performed bargaining unit work is answered, there is no serious dispute regarding other provisions of the agreement.

                It is a basic arbitration principle that management has the right, if exercised in good faith, to establish new classifications, unless the collective bargaining agreement restricts such right.  Axelson Manufacturing Company, 20 LA 444 (1958 Prasow).  In the absence of contract restrictions, an employer has the power to change, eliminate, or establish new job classifications.  Independent Lock Co. of Alabama, 36 LA 1392 (1961 Murphy).  Employers may, in the absence of specific authorization in the collective bargaining agreement, set up and operate training programs with unilaterally set rates of pay.  However, such programs cannot conflict with the collective bargaining agreement.  Gardner-Denver Company, 45 LA 78 (1965 Ray).  In a 1976 case decided by Arbitrator Merrill involving summer workers, he stated that the basic question was whether they were in the bargaining unit.  If they were, contract rates of pay applied; if not, the employer was free to set the pay scale.  He went on to state that the all-inclusiveness of the language of the agreement, referring as it did to all engaged in operation and maintenance, convinced him it embraced summer workers.  Williams Pipe Line Company, 66 LA 330.

                There is no specific restriction on the right to establish new classifications in the parties' agreement.  However, in the instant case, the recognition clause is controlling once an incumbent of a newly created position performs work contemplated under that clause.  The Employer argues there is no explicit provision in the agreement stating that the kind of work performed by the Grievant comes within the jurisdiction of the Teamsters Union.  However, the recognition provision of the agreement states with abundant detail and clarity what kind of work is done by employees in the bargaining unit.  It also states that when employees perform that kind of work, the Union has jurisdiction.

                With respect to the management rights provision in the agreement, the Employer retained the right to exercise all the actions enumerated thereunder, including the right to determine the means, classifications, and personnel by which its operations are to be conducted.  However, in the recognition article it specifically agreed that when personnel it employs perform those kind of duties listed, they would be in the bargaining unit represented by the Union.

                To the Employer's argument that its assignment of work is determinative of the issue, the response must be that, with regard to bargaining unit work and what it consists of, the recognition clause of the collective bargaining agreement is controlling.  Were there competing unions asserting jurisdiction over the Grievant's work, the Employer's work assignment would be critical.  However, such is not the case here.  The question here is, given the work assignment made by the Employer, do the duties performed fall under the recognition clause.

                The recognition clause in question here is extremely broad and all-encompassing.  The Employer seemingly bargained away its right to create positions outside the bargaining unit where occupants of such positions "... are employed on or around... automobiles, trucks, trailers and all other vehicles hauling, carrying or conveying freight, merchandise, or other material... loading and unloading freight, merchandise, or other materials on to or from any type of vehicle... and truck drivers' helpers."  Although the clause is somewhat awkward in its syntax, its meaning is clear:  all who perform the kind of work delineated are doing bargaining unit work.

                There are no limitations contained in the recognition clause with respect to amount of time performed, or degree of participation in, bargaining unit work.  The clause doe not restrict bargaining unit work to that traditionally done by operators of heavy, complex vehicles, nor does it restrict bargaining unit work to that performed by highly skilled craftsmen.  While the primary work done by the Grievant--utility work--is not necessarily the kind of work generally associated with the skilled work of Teamsters in general, the recognition clause does not state that only highly skilled, Teamster work is bargaining unit work.  It lists work which can be described as that of an assistant or helper and work which is less than skilled.

                Although, as the Employer asserts, the Grievant has not driven any of the large, complex vehicles that have traditionally been driven by Teamsters, except the garbage truck, he has performed work shown in the recognition clause as bargaining unit work.  Helpers and employees working on or around trucks and other vehicles hauling materials are included in the bargaining unit.  The clause does not distinguish between simple, four-speed, single-axle dump trucks and large, complex pieces of equipment.  In fact, both Teamsters and non-Teamsters have operated T-22, and Teamsters have performed unskilled manual labor tasks.

                The Employer argues that the Grievant was never assigned to drive traditionally Teamster-operated equipment that required special skills and training.  Yet there has been no clear delineation of which vehicles are to be driven by Teamsters and which are non-Teamster vehicles.  In fact, there has been some crossover between unions.  Moreover, Teamster bargaining unit members perform some unskilled work like the manual labor work performed by the Grievant.

                It is clear that not all of the work done by the Grievant is on or around vehicles engaged in hauling materials.  However, the contract does not limit bargaining unit work to that performed only by employees on a predominant or primary basis.  There is no requirement in the contract that an employee perform a certain amount of bargaining unit work as a percentage of his total work.  He is doing bargaining unit work if he is employed on or around trucks and other vehicles hauling materials or loading and unloading materials.  An employee who performs such work while he is assigned to work under the supervision of foremen who direct the work of Teamsters, and who works side by side, or assists in close proximity to Teamster bargaining unit employees cannot be said to be outside the bargaining unit as that term is defined in the collective bargaining agreement.  That the work is primarily unskilled is not determinative.  There is no evidence to show that Teamsters perform only skilled work.  In fact, they perform some unskilled work.  Moreover, the contract does not define bargaining unit work as skilled work only; it lists work that is clearly unskilled.

                The contract does not restrict bargaining unit work to that performed by trained personnel.  While the Employer contends that bargaining unit Teamsters traditionally operate complex vehicles, there is insufficient evidence to establish a past practice.  The evidence on the record shows clearly that there is considerable crossover and overlap between the kind of work done by employees in the Public Works Department.

                It is of no moment that the Union did not petition the Montana Board of Personnel Appeals for a clarification of the bargaining unit.  It could have elected that forum under the statute, but it was not compelled to do so.  The collective bargaining agreement itself provides a forum for seeking resolution of disputes over contract interpretation, including the recognition clause.

                In summary, I find that although the management rights clause in the agreement and basic arbitration principles support the Employer's right to create new positions, the specifics of the recognition provision of the agreement are controlling here.  Once the work assigned to the Grievant included duties clearly set out in the contract as bargaining unit work, the Employer was remiss in not acknowledging him as a collective bargaining unit member under the jurisdiction of the Union.

                Having found that the Grievant has done bargaining unit work during the time he has been employed by the Employer, I will order that he be made whole for the difference between what he earned and what he should have earned under the contract with respect to wages and fringe benefits, including seniority.

AWARD

                The grievance is sustained.  The Employer hereby is ordered to make the Grievant, Daniel Kelly, whole by paying him the difference between what he was paid and what he would have been paid under the terms of the collective bargaining agreement for the period of time in question.  The Employer shall consider him as being in the Teamsters bargaining unit effective four months after his date of hire and determine his seniority and other contract benefits in accordance with the applicable provisions of the collective bargaining agreement.

                I will retain jurisdiction over any dispute arising out of the implementation of this award for 60 days from the date of this award.

                Dated this _____ day of July 1994.

                                                                                                Jack H. Calhoun

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