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Title: Supervalu, Inc and Teamsters Local 435
Date: July 18, 1997
Arbitrator: Thomas Watkins
Citation: 1997 NAC 110

 

 

In the matter of Arbitration between:

 

SUPERVALU, INC.

Denver Division

 

- and -

 

TEAMSTERS LOCAL UNION NO. 435

Affiliated with the International I.B.T.

 

        TEMPORARY JOB PAY         

                       

            Mark Mull, Grievant                    

                                                                                      

           Grievance No. 53611                                         

                                                                                       

            FMCS No. 97-05960-A

     

 

 

 

                                                                        THOMAS L. WATKINS, Arbitrator

 

APPEARANCES:

 

            FOR THE COMPANY:

 

                        Mountain States Employers Council by Camille Torres

                        Greg Giauque, Warehouse Manager; Witness

                        Steve Thompson, Manager, Human Resources

                        Steven Wade, Superintendent; Witness

 

            FOR THE UNION:

 

                        Linda M. Cote, Attorney

                        Blake Harder, Witness

                        Mark Eugene Mull, Grievant; Witness

                        Steven P. Vairma, Secretary-Treasurer, Local 435; Witness

                        Ralph Youmans, Union Steward; Witness

 

 

 

Hearing held:  April 23, 1997 at the Red Lion Hotel, 3203 Quebec Street, Denver, Colorado.

 

This proceeding in arbitration was authorized under Article 15 of the Agreement between the parties dated October 20, 1995.  The Arbitrator was selected by the parties through the procedures of the Federal Mediation and Conciliation Service.

 

A post hearing brief was timely filed by the Employer on May 30, 1997.  The Union’s brief was received on July 10, 1997 with the consent of the Employer.


INTRODUCTION

 

            This case concerns the amount payable to the Grievant, Mark Mull, for his performance as a Sanitation worker for a period of less than sixty (60) days, but more than one day, during a fellow employee’s absence for surgery during September-October 1996.  Mull was at the time classified in Warehouse, earning $14.92 per hour.  During the period in Sanitation he was paid at a lesser rate.  The parties stipulate the issues in arbitration to be:

Did the Company violate the Collective Bargaining Agreement by paying the Grievant Sanitation wages after the Grievant was awarded a temporary job bid?  If so, what is the proper remedy?

 

As further detailed below, the Company believes that Mull accepted a temporary bid and the lower pay rate which accompanied it.  The Union contends that Mull was awarded a temporary job assignment and must be given the higher rate.

 

FACTS

            There is no question the Grievant was working as a loader in the Warehouse when a sheet was posted in September 5, 1996.  Under the stamp, “Open for Bid,” the sheet read, “Temporary Bid for Less than 60 Days” (the same form used for vacation replacement bids, VARs).  Mull placed his name on the bid sheet because the days and hours better fit into his schedule as a single father, though he was aware the job was classified at a lower rate of pay than his own.  He asked two men he believed to be stewards their understanding about the level at which he was to be paid while temporarily on the Sanitation job.  One said he did not know; the other stated his (Mull’s) pay would not be reduced.  Mull was the senior bidder outside the department and he received the bid, as no employee within the Sanitation department signed the form.

            After he reported for the job he apparently asked Chuck Emerson, the supervisor in Sanitation, about the pay.  Emerson stated he would check it out with Greg Giauque.  The Grievant also spoke with Union Steward Ralph Youmans about the pay rate and was advised to wait until he received his first  pay check.  It is unclear when Emerson and Mull next spoke, but when Mull received his first check (reflecting the lower wage rate) he again queried Emerson, who said the pay was correct.  Mull then went to Youmans and filed the instant grievance.

            Mull acknowledges that before signing the bid sheet he never spoke with any member of management about the pay rate for the Sanitation position because he “didn’t think they’d know,” and after beginning the job he spoke only with Emerson.

            It should be noted that the parties regularly use terms of art in filling vacancies.  The term “upgrade” is used to describe any change in position for that day only; upgrades are offered anew each day.  Persons are paid the higher rate if the upgrade lasts longer than three hours.  A “temporary”  position is one lasting less than sixty (60) days but longer than an upgrade (Article 3.12).

Both parties stipulate that bids cannot be withdrawn, and that when a vacancy is temporary, its length is normally indicated on the posting.

 

 

 

RELEVANT LANGUAGE FROM THE AGREEMENT 

 

ARTICLE 3: SENIORITY

 

3.05  A job vacancy shall occur when an employee is permanently transferred or terminated from his employment, (unless the job is abolished) or a new job is created or when an employee’s bid starting time is changed. . . .

 

3.07  Posting for jobs shall indicate the department, the specific bid job, and the scheduled days and hours of work.

 

3.09  When the posting is taken down in accordance with Section 3.07, the most senior employee from within the specific department where the vacancy exists, who signed the posting, shall be the successful bidder, providing such employee can satisfactorily perform the work.  If there are no successful bidders within the specific department, then the most senior employee from outside that department, who signed the posting who can satisfactorily perform the work, shall be the successful bidder.

 

3.10  Employees successfully bidding on job(s) shall be physically assigned the job(s) on the first day of the workweek of the bid job awarded.

 

3.12  . . . Temporary bids will last no longer than sixty (60) calendar days.

 

3.16  (a)  Temporary Job assignments to bid jobs in the grocery and perishable departments which exist due to absence, shall be filled by the senior order selector(s) in the department who desire such work.

 

ARTICLE 11: VACATIONS

 

11.06  (b)  The Employer will post a temporary bid for each quarter . . . for those employees in the grocery, perishable, and sanitation departments, who desire to replace absences on all shifts (which are not order selecting shifts), of one week or more, in their respective departments.  The Employer will assign by seniority employees from this bid who are capable of performing the available work.

 


 

ARTICLE 18: SPECIAL CONDITIONS

 

18.01  . . . .Whenever an employee is temporarily assigned to a lower paid job, he shall continue to receive the rate of his regular job classification.  Whenever an employee is temporarily assigned to a higher paid job, he shall receive the rate of the higher paid job for the entire day if the temporary transfer lasts for three (3) hours or more; but he shall receive the regular rate of pay for the entire day if the temporary transfer lasts for less than three (3) hours.

 

 

POSITIONS OF THE PARTIES

            The Company contends that “assignments” are synonymous with “upgrades,” are for one day only, are not posted, are always within the department, and therefore are different from “bids.”  Assignments are controlled by Articles 3.16 and 18.01 whereunder persons are paid their regular (or higher) wage if the assignments are for more than three hours.  Vacation coverage is also handled in this manner.  In contrast, “bids” may be inside or outside the department, are filled through posted bid sheets, are addressed in Article 3, Sections 5-12, and the employee accepts with the bid the rate of pay that accompanies it.  Mull bid into Sanitation.

The Union contends that “upgrades” are a form of  “temporary assignment,” that “bids” and “assignments” are identical if they last more than one day, that both are controlled by the procedures of Articles 3.07-3.12, that Article 18.01 applies to temporary positions of any kind, and therefore that an employee is entitled to receive the higher rate of pay for any assignment or bid of more than three hours’ duration.


 

ANALYSIS

            We are presented here with a classic case of contract interpretation: ambiguous language (plausible contention can be made for conflicting interpretations), fuzzy parole evidence, and an absence of a long, consistent practice.  In such cases there is no true “mutual intent” of the parties and the arbitrator is asked to conceive, or adopt from the arguments of counsel, a theory of the agreement which explains her/his solution to the matter, and which does no violence to the general spirit and intent which have been expressed in the agreement.[1]  There are, of course, quite a number of possible methods of determining what the most reasonable interpretation of the agreement should be.  (The Elkouris expound on several of them.)

            The Employer contends that “the evidence in this case is equipoise and both the Company and the Union have presented equally plausible interpre-tations of the collective bargaining agreement.”  Under those circumstances the Union cannot carry forth its burden of proof and the Company’s interpretation must be upheld.

            I disagree with the underlying assumption: the preponderance of evidence is substantially in the favor of the Union.  First, the language is not clear and unambiguous.  Indeed it is both unclear and to some degree absent altogether.  The terms “assignment” and “bid” within the context of this Agreement seem not to be used in mutually exclusive situations; rather, they are used in harmony.  In some cases employees bid for positions; in others they respond to “upgrade” needs.  But in both instances employees are then assigned to the job.  The doctrine relied upon by the Employer, “to express one thing is to exclude another,” cannot be applied here since assignments follow acceptances of vacancies, bids and upgrades alike.  Article 18.01 clearly contemplates that an employee is assigned following acceptance of a new position. 

This methodology is consistently employed in handling VARs, inventory opportunities and upgrades.  There is nothing in the Agreement to suggest that “temporarily assigned” as used in 18.01includes all of those situations but not one involving, for example, sick leave coverage.  The most reasonable construction of Article 18.01, therefore, is that such an assignment, which follows a successful bid, would be included in the application of the article unless it is excluded.  This follows from the doctrine of “construing the agreement as a whole” whereunder “sections or portions cannot be isolated from the rest of the agreement * * * The meaning of each paragraph and each sentence must be determined in relation to the contract as a whole.”[2] 

            The Employer also contends that to accept the application of Article 18.01 in the instant circumstance renders a portion of Article 3.12 meaningless because it would be superfluous to define “temporary bids” in that section if the term is synonymous with “temporary assignments” in 18.01.  The error here is that even if Article 18.01 applies to temporary bids, as I believe it must, Article 3.12 still is critical in defining the nature of “temporary,” i.e., a period of less than sixty calendar days.  That both articles exist is not evidence that they are redundant: one addresses the outside time length while the other addresses the minimum period and the wages to be paid. 

            The Company notes that Article 18 states “whenever an employee is temporarily assigned to a higher paid hob, he shall receive the rate of the higher paid job for the entire day if the temporary transfer lasts for three (3) hours or more; but he shall receive the regular rate of pay for the entire day if the temporary transfer lasts for less than three (3) hours.”  [Emphasis added.]  The argument is that  Article 18 must contemplate application only to daily assignments.  

However, the record is clear that the practice for vacation coverage, which invariably lasts longer than one day, is to pay employees the higher rate consistent with Article 18.  It is acknowledged that this arrangement is the direct result of specific discussions on this point during contract negotiations and a proximate grievance settlement.  There is no reliable evidence that either the negotiation or settlement discussions addressed a temporary bid similar to that in the present case, as helpful that that would have been.  Yet both parties were or should have been aware during the vacation discussions that in the only two prior instances of temporary bids outside the department for reasons other than vacation, employees were paid at the higher rate.

            Taken together, one cannot distinguish between  “temporary bid” and “temporary assignment” as it relates to the application of Article 18.01.

            The Company also contends that while it is bound not to reduce the pay of an employee who is assigned lower pay work in the same department, it may do so if the assignment crosses department lines.  First, nothing in the collective bargaining agreement reflects any such distinction.  The posting form used by the Company to announce vacancies open for bid expressly quotes language from Section 3.07 of the Agreement, which states that the assignment will be made first to the most senior employee in the department where the vacancy exists.  If no one in the specific department bids, the assignment goes to the most senior of those outside the department.

Second, as noted, evidence at the hearing established that this circumstance has arisen twice before.  In those two earlier cross-departmental assignments involving a temporary bid, both employee were paid their regular rate.  (The only instance in which the successful bidder received the reduced rate, Mr. Ferra, appears to be a permanent, not temporary, job bid.)

            Two instances hardly establish a long, consistent past practice; but to the extent a practice can be said to exist, they further undermine the contention that there is a meaningful distinction to be made between intra- and inter-departmental bids.  Indeed, the same presumption of invisibility is used during biannual inventory periods.  The critical distinction is between temporary and permanent bids and the assignments which follow them, and not whether the bid was interdepartmental.

                        What parole evidence we have tends to support this position.  Apparently the concept of “temporary bids” did not exist in the prior agreement.  But the Company found it cumbersome to fill all non-permanent vacancies on a daily basis (i.e., through “upgrades”).  Article 3.12 was added to define them.  It is difficult if not impossible to now determine the mutual intent of the parties as it might relate to the interaction of Articles 3 and 18.  But when all the evidence presented is taken together, one must conclude that the Union’s position is more likely the appropriate construction of the disputed language: it is better aligned with the wording of the whole agreement, the practice of the parties, and a reasonable interpretation of the applicability of Article 18.01.

                        Therefore it must be found that the Union has carried forth is burden of proof in establishing that the Employer violated the Collective Bargaining Agreement by paying the Grievant Sanitation wages after the Grievant was awarded a temporary job bid.

 

 

DECISION

 

           The grievance of Mark Mull is upheld.  The Company is directed to make whole the Grievant for all wages and benefits which may have be lost during his temporary period in Sanitation.

 

                                                           ____________________________________ 

                                                           THOMAS L. WATKINS, Arbitrator

 

July 18, 1997

Frisco, Colorado

 


 



[1] Elkouri and Elkouri, How Arbitration Works, Fourth Edition (1985), The Bureau of National Affairs, pp. 345-6.

[2] Elkouri, op cit, p. 353.

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