Title: Butte-Silver Bow Municipal
Government and Butte Teamsters Local 2
BEFORE THE ARBITRATOR
IN THE MATTER OF THE
BUTTE TEAMSTERS UNION, LOCAL NO. 2,
BUTTE-SILVER BOW MUNICIPAL GOVERNMENT,
Daniel J. Kelly Grievance
Hearing Held May 17, 1994
Jack H. Calhoun
FMCS No. 94-10309
FOR THE UNION:
FOR THE EMPLOYER:
D. Patrick McKittrick
Donald C. Robinson
McKittrick Law Firm, P.C.
Poore, Roth & Robinson, P.C.
P.O. Box 1184
1341 Harrison Ave.
Great Falls, MT 59403
Butte, MT 59701-4898
Butte Teamsters' Union, Local No. 2 (hereafter the Union) and
Butte-Silver Bow Municipal Government (hereafter the Employer) are parties to
a collective bargaining agreement that contains a recognition clause which
identifies the kind of work done by employees in the bargaining unit.
The agreement also sets forth, among other things, the conditions under
which seniority is recognized, when bargaining unit work may be done by
others, and the right of management in operating its business.
On May 16, 1991, Daniel Kelly, the Grievant, was hired by the Employer
as a crew supervisor in a temporary four-month work program. In August he was told he could continue as a utility employee
beyond the termination of the work program.
In the fall of 1993 he filed a grievance alleging the work he had been
doing was covered by the collective bargaining agreement and he should be in
the bargaining unit. Resolution
of the ensuing dispute was not had and the matter was submitted to
A hearing was held on May 17, 1994.
The parties agreed the arbitrator had jurisdiction to hear the matter
and to render a final and binding award.
Post-hearing briefs were filed on June 10, 1994.
The parties were unable to agree upon a precise statement of the issue;
therefore, I have determined it to be as follows:
Did the Employer violate the collective bargaining agreement when it
refused to acknowledge that the work performed by Daniel Kelly was bargaining
unit work? If so, what is the
The following provisions of the collective bargaining agreement are
relevant to the issue in dispute:
ARTICLE 1 - RECOGNITION AND MEMBERSHIP
Section 1: The
Employer recognizes the Union as the exclusive bargaining agent with respect
to wages, hours of work, and other conditions of employment for the employees
included in the bargaining unit, to-wit: Teamsters, Chauffeurs, Warehousemen and Helpers, all who are
employed on or around horses, harness, carriages, automobiles, trucks,
trailers, and all other vehicles hauling, carrying or conveying freight,
merchandise or other materials, service and maintenance employees, garage
workers and warehousemen of all kinds employed in warehouse work, stockmen,
and shipping room employees and loaders, that is persons engaged in loading
and unloading freight, merchandise or other materials on, to or from any type
of vehicle. All rubber tire work
and helpers, distributor drivers and helpers, dumpmen, gravel spread box
operators, plow holders, fresco and slipmen power broom operators, and truck
drivers' helpers, all surveyors, chainmen, rodmen, draftsmen,
clerical-draftsmen and all other classifications of employees directly
involved in the completion of surveys and the drafting of same.
Section 2: Employees
who perform work coming under the jurisdiction of the Union, as set forth in
Section 1, in Article 1, and who are not members of the Union at the time of
their employment shall become members on or before the thirtieth (30th) day
following the beginning of such employment, or the effective date of this
Agreement whichever is later.
ARTICLE 17 - SENIORITY
. . .
Section 2: The
Employer shall continue to follow the past practice of giving due
consideration of length of service in awarding promotions to employees.
Seniority shall be recognized after four (4) months of continuous
service, dating from the first day of employment.
In cases of reduction of forces, the last man hired will be the first
man laid off; the last man laid off will be the first man rehired.
. . .
ARTICLE 21 - BARGAINING UNIT WORK
Section 1: Any
person not in the bargaining unit covered by this Agreement shall not perform
any of the work of any employees in the bargaining unit except in extreme
emergencies (emergencies are defined to mean where life, limb, or property is
in imminent danger) or for the purpose of instruction.
For the purpose of interpreting this clause, each craft will be
considered a separate bargaining unit.
Section 2 - Misassignment of Work:
In the event of an admitted error in assignment of work, the affected
employee or employees will be made whole for the period of time that the
misassignment of work continued.
ARTICLE 23 - RIGHTS OF MANAGEMENT
Section 1: The
Union shall recognize the prerogatives of the Employer to operate and manage
the affairs of the Butte-Silver Bow Government in such areas, but not limited
hire, promote, transfer, assign and retain employees;
relieve employees from duties because of lack of work or funds or under
conditions where continuation of such work be insufficient and nonproductive;
maintain the efficiency of government operations;
determine the methods, means, job classifications and personnel by
which government operations are to be conducted;
take whatever action may be necessary to carry out the missions of the
agency in situations of emergency;
establish the methods and processes by which work is performed.
Section 2: Except
as otherwise expressly and specifically provided for in the Agreement by past
practice, the Employer shall manage the business and direct the working force.
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
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
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
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 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
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
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
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.
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
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
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
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.
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
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