Title: Engineers & Scientists Guild, Lockheed
Section and Lockheed Advanced Development Co.
IN THE MATTER OF THE GRIEVANCE
LOCKHEED ADVANCED DEVELOPMENT COMPANY, )
a DIVISION OF LOCKHEED MARTIN CORPORATION, )
and ) AND
ENGINEERS AND SCIENTISTS GUILD, LOCKHEED )
FMCS NO. 96-10731
KEITH SENSING GRIEVANCE
JACK H. CALHOUN
DECEMBER 19 and 20, 1996
MAY 22 and 23, 1997
FOR THE COMPANY: FOR THE GUILD:
Skunk Works Engineers and Scientists Guild,
Way 40015 North Sierra Highway, Ste B250
California 93599-3715 Palmdale, California
Engineers and Scientists Guild (the Guild) and Lockheed Advanced Development
Company (the Company) are parties to a collective bargaining agreement that
covers conditions of employment for certain employees of the Company.
The grievant, Keith Sensing, was removed from his position as overhead
crane and lifting equipment engineer, senior (crane engineer), in June of 1994. He filed a grievance that went unresolved and ended in
arbitration. The parties agreed the
matter was properly before the arbitrator.
Post-hearing briefs were filed.
parties were unable to agree on the wording of the issue in dispute.
They agreed at hearing that the arbitrator could frame the issue. Their collective bargaining agreement provides that when the
parties fail to agree to a joint submission agreement, the arbitrator will
determine the issue or issues; therefore, the issue is: Did the Company violate
the collective bargaining agreement when it removed the grievant from his
position as crane engineer? If so,
what is the proper remedy?
following provisions of the parties’ collective bargaining agreement are
relevant to the issue in dispute:
Article I, General Provisions
1 — Recognition and Jurisdiction
Company, as herein defined below, recognizes the Engineers and Scientists Guild,
Lockheed Section, hereinafter referred to as the “Guild”, as the exclusive
collective bargaining agent for employees of the Company as defined in the
. . .
term “employee” or “employees” as used throughout this agreement shall
mean such persons employed by and listed on the payroll of the Company, as such
term is defined, to work in the job classifications listed in Article VII,
Section 2 of this agreement, and to work at the Company’s plant or plants
described above in the preceding paragraph as within the definition of the term
“Company.” . . .
. . .
3 — Right to Manage Plant
right to manage the plant and to direct the working forces and operations of the
plant, except as limited by this agreement, are vested in and retained by the
Article IV, Employment Conditions.
Section 1 — Basis of Seniority and Establishment of Seniority Rights
shall be the relative status of employees in respect to length of service with
the Company, subject to the following qualifications:
. . .
Section 2 — Loss of Seniority
A. Loss of seniority shall result for an employee upon the
happening of any of the following events:
. . .
B. General Layoff Procedure
. . .
Article VII, Job
Descriptions and Pay Rates
Section 1 — Job Descriptions and Rates of Pay for Classified Employees
A. The job descriptions which have been mutually agreed to on
the date of execution of this agreement, and the rate ranges, and the basic
rates of pay for each of the job classifications as set forth in Section 2 of
this Article, or which are placed into effect pursuant to subsection B hereof,
shall be a part of this Agreement.
B. In the event that a new job or position is established, or
after the effective date provided in Article VIII, Section 1,, there occurs a
substantial change in the duties or requirements of an established job, the
Company shall develop an appropriate job description and evaluation and
establish, within the applicable existing rate structure provided in Section 2
of this Article, the basic rates to apply to such job.
The Company shall furnish the Guild with the new job description and
evaluation and shall submit for its approval the rate established for such job.
grievant was first employed by the Company in 1973.
He worked in several different positions until 1985, at which time he was
promoted to overhead crane and lifting equipment engineer, senior, or crane
engineer, in the Company’s facilities engineering branch.
His duties in that position were, generally, to be responsible for the
inspection and record keeping of inspections of all Company cranes, hoists,
jacks, and other lifting devices. He
was to supervise all inspections and proof loads of such lifting devises when
those inspections were performed by Company maintenance personnel or outside
job description, as agreed to by the parties, for the grievant’s position has
been listed in the collective bargaining agreement for at least seventeen years.
Job descriptions listed in the agreement differentiate between duties and
responsibilities of the different jobs in the bargaining unit.
They are distinct; however, there is some overlapping of duties.
1985, when the grievant first started in his crane engineer position, there were
two other crane engineers doing the
same work as the grievant. By the
time he was removed from the crane engineer position, the grievant was the only
one left and he was working in excess of 50 hours per week.
1990, the Company had a total of 599 employees in its facilities engineering
branch. Forty two of those
employees occupied positions in the bargaining unit represented by the Guild.
As of June of 1994, the number of employees in the facility’s
engineering branch had decreased to 213, 26 of whom were in the
Guild-represented bargaining unit.
the reduction in the total number of employees, the grievant was working long
hours each week prior to his removal from his former position.
He was performing all the crane engineering work as enumerated in his
position description. During
the time the grievant was doing crane engineering work, no one outside the
Guild-represented bargaining unit did the same kind of work.
prior to the grievant’s removal from his position, the Company had contracted
to have a new building constructed that was to house fourteen cranes.
The cranes were to be built and installed by an outside contractor.
January of 1994, the grievant was called to inspect the cranes that had been
installed to see if they met all applicable state and federal laws and
regulations, and the specifications the Company had imposed on the contractor.
The grievant found numerous violations of safety requirements and of
Company specifications. He reported
his findings to his superior, Mr. Brewer, who told him to report them to Mr.
Coupland, the facilities project manager. He
did so and also informed Coupland that the individuals from the contractor with
whom he had been dealing during his inspection were incompetent.
Coupland said he would take the necessary action to have the corrections
made. In early April of 1994, the
grievant found out from co-workers that the cranes had been accepted and were to
be turned over to the company. He
asked who accepted them because that was his job. He was told Coupland did so.
grievant contacted Coupland and asked to see the certifications for the cranes
in question. Upon review, he noted
the certificates did not meet legal requirements.
He then contacted the state division of occupational safety and health
and informed that agency of his concerns. The
next morning the head of the agency’s crane certification unit came to the
plant and along with the grievant and a Company safety engineer, inspected the
cranes. The state official told the
safety engineer it was one of the worst systems he had seen and to not allow
anyone to use it until all violations were corrected.
the visit and inspection by the state agency, Coupland called the prime
contractor and said the grievant had informed the agency of the deficiencies and
that the contractor was to correct the system because the Company was supposed
to have occupied the building in which the cranes were located in January.
Coupland also called in an outside crane inspecting firm that inspected
the cranes and found numerous deficiencies and violations.
prior to the time of being removed from his position, the grievant found out
from Mr. Brewer that the Company was going to have to reinstate the hourly
employees in the International Association of Machinists and Aerospace Workers
bargaining unit that the Company had improperly replaced previously.
The hourly employees were those who had done crane maintenance work
before they were replaced. The
grievant had provided technical direction to them before they were terminated
and replaced by an outside contractor and he thought he would again provide that
same direction when the IAMAW bargaining unit employees returned.
Brewer informed the grievant, three weeks before his removal from this position
that the grievant was to be removed. The
grievant contacted Mr. Kramer, Brewer’s superior, because all the cranes and
other equipment the grievant had been responsible for for nine years were being
used daily. Kramer told the grievant upper management had made the
decision and they were going to have Mr. Manahan transferred over as a
maintenance supervisor to supervise the IAWAW bargaining unit maintenance
employees who would do most of the grievant’s work, supervisory personnel
would also take over some of his duties.
official job description under which the grievant worked and which was a part of
the collective bargaining agreement defined the duties and responsibilities of
the grievant when he worked as overhead crane and lifting equipment engineer,
senior. The purpose of his position
was to provide the inspection, maintenance, control and test requirements for
cranes, hoists, cables, slings, load bars, jacks and accessory items used in
lifting systems. He was responsible for planning, directing and coordinating
the activities of others to perform inspections and proof load testing of
lifting equipment in compliance with proof load test diagrams, regulations and
June 13, 1994, the grievant was officially removed from this crane engineer
position and placed in a planner position in the IAMAW bargaining unit.
He filed a grievance alleging the Company had transferred his duties to
non-represented and other classifications.
Guild received the Company’s response to the grievant’s request for
reinstatement on August 25, 1995. The
letter said the grievant’s layoff was the result of two events: (1) the
Company’s decision to terminate the maintenance contract it had with General
Conveyor, and (2) the Company’s decision to cease performing unnecessary
functions. The maintenance work that had been done on cranes, lifts and
hoists by General Conveyor was not being done by Company maintenance employees
the letter said. A supervisor and
four hourly employees were doing the maintenance part of the work, but no
Company employee was performing the functions of the grievant’s former
position, according to the letter. General
Conveyor continued to perform yearly crane certifications.
The Company contended that the grievant’s former duties were no longer
performed within the Company and there was insufficient activity within that job
classification to warrant a full-time employee.
the Company’s assertions in its August 25, 1995 letter, witnesses testified to
the effect that the crane engineering work performed by the grievant before his
removal as crane engineer continued to be performed after he left.
Coupland engaged a vendor to correct the crane deficiencies and to
certify them. Crane crews and their
supervisors made crane safety inspections, load tested and tagged cranes and
other lifting equipment. The
in-house maintenance crew, its supervisor and General Conveyor performed work
that was once done by the grievant. Manahan
had a large increase in completed preventive maintenance orders in 1994 and
Company experienced a significant decline in the number of employees it utilized
from 1990 to 1994. Because of a decline in business, the Company’s
manufacturing and production operations were relocated to Georgia. The research and development division of the organization
became a separate entity. The
Burbank facility was closed in 1992 and its operations moved to the Palmdale
facility as work and space permitted.
from 1991 to 1996, the number of preventative maintenance orders and cranes
decreased to one-third of what it had been, the work that was left was all in
Palmdale. The number of crane
engineers dropped to one. The grievant had been the only crane engineer for some time
before his layoff. He worked
primarily in Palmdale while the other two crane engineers had worked in Burbank.
The overall decrease in the total number of Company employees was in
large part due to the closure of the Burbank plant and it did not affect the
grievant’s workload in Palmdale.
crane engineer position has always worked in conjunction with outside
contractors and in-house company maintenance employees.
It had been primarily responsible for several years for overseeing,
inspecting, certifying and keeping records of load tests for cranes, slings,
jacks and load bars. Maintenance
employees from different bargaining units had been utilized by the Company to do
some preventative maintenance work and make repairs on cranes and other lifting
equipment. However, the grievant
was the one who was responsible for overseeing inspecting and certifying such
Guild has made proposals over a number of years to change the language of
Article VII of the collective bargaining agreement.
Such proposed changes were not incorporated into the agreement.
primary duties and responsibilities of the grievant when he was the incumbent of
the crane engineer position are not included in the job descriptions of those
employees who did his work after he was removed from the position.
There is some overlapping of less-than-primary, minor duties and
responsibilities. The primary
duties of the position of crane engineer have always been in the bargaining unit
that is represented by the Guild.
POSITION OF THE GUILD
Guild contends the Company violated the collective bargaining agreement when it
laid off the grievant. Only employees certified as crane engineers can perform the
primary functions of that skilled position under the terms of the agreement,
according to the Guild. Citing an
arbitration award issued by Arbitrator Weckstein in 1997 involving the same
parties, the Guild argues the parties have mutually agreed to the job
descriptions and rates of pay contained in and made a part of the agreement.
As such, they act as a limitation on the Company’s management rights.
According to Elkhouri, as cited by Weckstein, the Guild argues the
existence of a detailed job description, specifically if negotiated, may deprive
management of a right to make substantial changes in job duties.
limitation would not serve to deprive the Company of making minor changes in job
duties, updating such duties, or making temporary or emergency assignments
outside an employee’s regular classification.
The Guild believes management may not require the performance of such
duties, however, as a regular and continuing part of the employee’s job.
There would be no contract violation, arguably, the Guild suggests, if
the crane engineer duties were also contained in the job descriptions of other
Guild bargaining unit positions. Despite
the Company’s contentions, that is not the case, according to the Guild.
citing the Weckstein decision, the Guild states that the Company could assign
minor duties from one employee to another in a different classification where
the skills required are common to several low-skilled classifications.
However, when the assignment is of the primary functions of a skilled
position to another position involving different but overlapping skills, and is
not of a temporary, emergency or de
minimis nature, such assignment would violate the collective bargaining
Weckstein rejected the Company’s contention that job descriptions merely
identify titles and serve as a way to assign pay rates and do not obligate the
Company to maintain the duties in a job description, in the Guild’s view.
Since the Guild is the exclusive representative of those employees who
work in classifications listed in the agreement, including the crane engineer,
the Company was not free to place the crane engineer’s duties in non-Guild
Guild contends that the duties performed by the grievant as crane engineer are
not included in the job descriptions of non-Guild represented employees who
performed the grievant’s duties after he was laid off.
The duties of the crane engineer have been and must continue to be
performed. Various witnesses confirmed that, the Guild maintains, the
work of the crane engineer neither disappeared nor became unnecessary after the
grievant’s lay off. It was
reassigned to others outside the Guild bargaining unit.
grievant was laid off in retaliation for reporting crane deficiencies to the
state division of occupational safety and health rather than for lack of work,
the Guild maintains. Soon after he reported serious deficiencies with certain
cranes, he was laid off for lack of work. Notwithstanding
the overall reduction in the Company’s operations, the operations in Palmdale
remained steady. Several hundred
cranes and pieces of lifting equipment remain.
to the Guild, the grievant incurred Coupland’s wrath and suffered the
consequences. Upper management
retaliated against the grievant for reporting the crane deficiencies.
In May of 1994, the grievant was notified his job was up in three weeks.
his lay off, the grievant’s work as crane engineer has been performed
primarily by maintenance and manufacturing employees, the Guild argues.
There has been more than enough work to keep the grievant on full-time as
the crane engineer.
POSITION OF THE COMPANY
Company contends that its decision to depopulate the overhead crane and lifting
engineer classification did not violate the collective bargaining agreement and
was based on sound business needs. It
is a fundamental right of management to make decisions concerning the efficient
operation of the plant and the assignment of individual duties and tasks
as long as the Company’s actions are not arbitrary, capricious, or
discriminatory. Evidence on the
record supports that business decision. The
number of cranes in service dropped, changes in technology increased efficiency
in preventive maintenance work, expenditures for contracted services dropped,
employee population shrank and plant size fell.
most powerful argument in this case, according to the employer, is the
unrebutted evidence of the Guild’s eight unsuccessful attempts to expand its
jurisdiction by proposing changes to the collective bargaining agreement.
The language proposed by the Guild was never incorporated into the
agreement. Such proposed language would have placed restrictions on
non-Guild bargaining unit employees performing bargaining unit work and on
subcontracting. Other proposals
would have accreted all work in the
job descriptions to classifications listed in the collective bargaining
agreement. Still other proposals
would have accreted all engineering work to Guild jurisdiction, required that
all classifications be populated, and required there be no change in the
bargaining unit work.
Company cites Boeing v. NLRB, 581 F.2d 793 (1978 Ninth Circuit) for the
proposition that a recognition clause in a collective bargaining agreement
cannot be interpreted in such a way as to impose on management a jurisdictional
guarantee which was not bargained for by the parties and which did not appear in
the agreement. For the arbitrator
to imply an exclusive jurisdictional guarantee to the Guild over the content of
job descriptions would impose on the Company a Guild right the Guild did not
obtain through negotiations.
purpose of a job description, the Company maintains, is to establish typical
duties an employee may be called upon to perform.
The job description is neither inclusive or exclusive to the
classification or particular bargaining unit.
The Guild’s proposals would have expanded the job descriptions from a
general statement of duties, that is neither inclusive or exclusive for the
purpose of establishing rates of pay, to an implied jurisdiction over duties,
tasks, and functions. The Guild
would have had no need to propose provisions involving work performed by
non-jurisdictional people if it had that exclusive right; therefore, the Guild
has never had exclusive jurisdiction over the content of job descriptions.
Company argues that none of the proposed changes by the Guild were incorporated
into the collective bargaining agreement or practiced in the workplace.
The duties described by the overhead crane and lifting engineer job
description have never been performed exclusively by that classification. There has been a past practice of overlapping duties and
responsibilities. It was not the
intent of the negotiators to make job descriptions exclusive to a single
classification or to the Guild bargaining unit.
There was a long standing practice from other bargaining unit employees,
under non-represented supervision, to work on lifting equipment.
The Company cites Textron Aerostructures, 91 LA 665 (Samuel) in
support of its position.
I, Section 3 establishes management’s right to make decisions that affect the
operation of the plant and the direction of the work force, according to the
Company. Nothing in the agreement
restricts that right. The process of inspections and verifications is
de minimis in its scope and is
related to procedures and responsibilities of those who have always performed
the work. The technical aspects of
the grievant’s job were so de minimis as to not require a full-time employee.
The Company cites Dresser Industries, Inc., 96 LA 1063 (Samuel
are a number of classifications that have tasks, duties and functions that
generally encompass and overlap those of the crane engineer, the Company
asserts. Responsibilities for the
duties on lifting equipment has been reassigned historically based on valid
business concerns. The Company
transferred responsibilities between the Guild and other bargaining units,
between the Guild and supervisors, and between the Guild and outside
contractors. The work was never
performed exclusively by the crane engineer.
to the Guild’s charge that the grievant was retaliated against because he
reported crane deficiencies, the Company denies that any retaliation took place.
The Guild’s allegation was unsubstantiated.
There was no collaboration of the grievant’s testimony to support the
allegation. Mr. Coupland testified
he appreciated the grievant’s disclosure, although he was frustrated with the
grievant’s waste of resources by taking additional photographs and making
elimination of bargaining unit jobs always causes stress to be created in the
relationship between the union and the employer.
Occasions for such stress become more frequent with changes in operating
procedures that are necessitated by a desire on management’s part to increase
efficiency and productivity either through the introduction of updated equipment
or simply by finding better ways to operate.
Reductions in jobs is of grave concern to unions and their bargaining
unit members because to the individual member it means a loss or reduction in
salary and to the union it means fewer members and reduction in financial
theoretical debate over the question of management rights is familiar to
labor-management relations practitioners. Under
the reserved rights theory, it is said, management retains all rights that it
possessed before its relationship with the union began except those rights that
were specifically limited or defined in the collective bargaining agreement. This reserved rights doctrine is often described as the
residue of management’s pre-existing functions that remain after the
collective bargaining agreement is negotiated.
It is said to leave the employer with the prerogative to use bargaining unit employees or others to perform work
unless there is a restraint in the agreement against such use.
on the other hand, contend that while management may have reserved rights not
expressed in the collective bargaining agreement it also has implied obligations
to its organized employees and their union.
Both parties have rights to stability and protection from unbargained
changes in wages, hours and working conditions.
It is said that without restraint, implied by the meaning of an
agreement’s recognition, classification and seniority clauses, management
could unilaterally seriously dilute and even destroy a bargaining unit by
assigning bargaining unit work out to non-bargaining unit workers.
the dispute between the reserved rights advocates and the implied obligations
proponents has not been resolved, arbitrators usually approach the controversy
with the facts of the particular case and the pertinent provisions of the
collective bargaining agreement in focus. That
method is appropriate in the instant case.
I, Section 1 of the agreement that was in effect at the time this dispute arose
is the recognition clause. It
essentially does two things. First,
it identifies the parties to the agreement. Second, it defines the bargaining
unit employees. The Guild is the
exclusive representative for collective bargaining purposes for all employees
doing the work of the classifications listed in the agreement.
3 of Article I is the management’s rights clause.
It is straight forward and means the Company has the right to manage
subject to the other expressed provisions of the agreement.
It is also limited by any implied obligations the Company may have
incurred based on the other provisions of the agreement.
seniority provisions of the agreement are contained in Article IV.
A detailed analysis of the somewhat complex seniority clause is not
necessary here. Suffice it to say,
there exists a seniority clause and it has meaning to both parties.
last pertinent clause of the agreement is Article VII.
It provides, among other things, that the job descriptions that are
listed and the pay rate ranges are a part of the agreement.
evidence on the record in this case, as indicated earlier herein, support the
factual conclusions indicated. The
grievant performed primary duties under the job description entitled “Overhead
Crane and Lifting Equipment Engineer, Senior.”
He was relieved of those duties, which were then given to others outside
the Guild-represented bargaining unit. The
question then is whether the action of the Company in relieving the grievant of
his bargaining unit duties and placing those duties outside the bargaining unit
is a violation of the parties’ collective bargaining agreement.
who subscribe to the reserved rights principle and those who endorse the implied
obligations tenet make up the opposite poles of the philosophical spectrum.
There are others who have considered other factors where there was no
specific restriction in the agreement against assigning bargaining unit work to
non-bargaining unit workers and where the employer acted in good faith in
transferring the work.
the instance case, the circumstances surrounding the treatment the grievant
received subsequent to his reporting to the regulatory agency the condition of
the new cranes are highly suspect and call into question whether the Company’s
managers acted in good faith and acted without anti-union animus.
The evidence suggested the grievant’s zeal for doing his job
embarrassed certain managers who retaliated.
“Management Rights,” Hill and Sinicropi, BNA 1986, the authors cite Bell
Telephone Co., 75 LA 750 (Garrett 1980) for the source of an unpublished
case decided by Arbitrator Howard as the better weight of authority on the issue
of transferring work out of the bargaining unit.
In pertinent part, it reads:
is reasonably well-established by arbitral precedent that permanent reassignment
of bargaining unit duties to non-bargaining unit employees represents a dilution
of the bargaining unit and a loss of representation rights over work formerly
under the bargaining agent’s control. Even
in the absence of express provisions in the collective bargaining agreement
limiting such transfers of duties, a constructive obligation exists on the part
of the employer by reason of the recognition and seniority provisions, among
others, to prevent the invasion of bargaining unit work by non-bargaining unit
personnel. The problem of balancing
the legitimate interests of the employees and the union in work opportunity
within the bargaining unit against the legitimate interests of the employer in
efficient operation of the business becomes more difficult when, in the course
of a comprehensive technological change, job duties become significantly changed
or modified. Notwithstanding the
difficulties, the employer has a clear obligation to respect the integrity of
the bargaining unit.
constitutes ‘bargaining unit work’ and that constitutes ‘maintaining the
integrity of the bargaining unit’ cannot be defined in broad legal or
philosophical principles. Rather,
it is a factual question uniquely dependent on the particular characteristics of
the job duties that have undergone change and have been reassigned. Where the job duties within the bargaining unit have been
eliminated, where the job duties have been significantly changed to encompass
duties historically excluded from the bargaining unit, or where the changed
duties embrace significantly different skills from those normally possessed by
the bargaining unit, there can be little quarrel with the conclusion that there
has been no invasion of the bargaining unit or the conclusion that the integrity
of the bargaining unit as been maintained.”
duties in dispute here that were transferred from the grievant to others were
not significantly changed or modified nor did they require different skills than
those possessed by the grievant. The
duties were not eliminated, they were simply assigned to others.
It was a permanent reassignment of bargaining unit work and it
represented a dilution of the unit and it was not de
minimis in nature. Good cause
for such transfer was not shown.
the Company’s reasoning, the recognition clause of the agreement would have no
meaning. There would be no
meaningful definition of the bargaining unit.
One could not say with certainty which employees were in the bargaining
unit and which were not, what work performed fell under the Guild as exclusive
representative and what work did not. It
is reasonable to assume that the parties did not bargain such a provision into
their collective bargaining agreement. Any
interpretation of an agreement that tends to nullify or render meaningless any
part thereof must be avoided.
Co. v. NLRB, 581 F.2d 793, 99 LRRM 2847 (CA9, 1978) the court decided, in
reviewing an arbitration award, that when a collective bargaining agreement is
silent on the question of transferring work out of the bargaining unit, an
employer is free to do so if the employer bargains in good faith to impasse with
the union and if the employer does not have anti-union animus.
Neither of the two elements allowing the Company to transfer bargaining
unit work was present in this case. The
Company made a unilateral decision and implemented it without bargaining with
the Guild. The Company’s good
faith was called into question by the action of its managers in removing the
grievant from his position after he reported the deficiencies in the cranes.
Company urges that the various attempts by the Guild to modify language in
Article VII amounted to an acknowledgment that the Guild lacked sufficient
jurisdiction over the job classifications to restrict the Company from taking
certain actions it may have considered necessary.
It would be speculative to try to determine what results would obtain if
the language of the collective bargaining agreement were different.
Suffice it to say, given the language in the agreement, the Company does
not have the unfettered right to assign bargaining unit work out of the unit.
That the Guild attempted to negotiate different language in the agreement
shows that it wanted to clarify and make more exact the existing language.
It does not show the Guild believed it had no defined bargaining unit
under its jurisdiction. The
language that exists is sufficiently clear and unambiguous to show that the
bargaining unit is defined as those employees doing the work described by the
classification in Article VII.
rights expressed in the agreement are limited by other express provisions of the
agreement such as the recognition, seniority and the job descriptions or
classifications provisions. Elkouri
and Elkouri, “How Arbitration Works,” Volz and Goggen co-editors BNA, fifth
edition 1985 p. 759. Specifically,
assigning work out of the bargaining unit is prohibited where the job is listed
in the agreement and is a part thereof.
to the Company’s argument, the listing of jobs in the collective bargaining
agreement means more than simply stating what an employee may be called upon to
perform. The jobs listed are within
the Guild’s realm of authority as the exclusive representative designated in
the recognition clause. Employees
doing the work of these jobs are doing bargaining unit work and as such they
fall under the Guild’s jurisdiction as exclusive representative.
To say that the job descriptions are neither inclusive or exclusive is
inaccurate. Their listing in the
agreement defines the bargaining unit and limits the Company’s right to assign
the duties of these jobs to non-bargaining unit workers.
the work of the crane engineer was historically transferred between the Guild
bargaining unit and other bargaining units, supervisors and outsiders, as the
Company contends, is not supported by the evidence on the record.
The record shows the work to be in the bargaining unit represented by the
Guild as indicated in Article VII of the agreement.
As such, only bargaining unit employees can perform the primary work of
the crane engineer. The primary
functions of the skilled crane engineer position, despite the possible
overlapping of some minor, low-skilled duties, cannot be transferred to others
outside the bargaining unit without affecting adversely the integrity of the
bargaining unit. Arbitrator
Weckstein in Lockheed Martin v. Engineers and Scientists Guild, Gr. Nos.
93* 0804 and 93* 0805, July 3, 1997, placed a like restriction on the assignment
of skilled work within the bargaining unit.
summary, I find that the Company violated the parties’ collective bargaining
agreement when it removed the grievant from the position of overhead crane and
lifting equipment engineer, senior. Accordingly,
I will enter an award and order a remedy.
grievance is sustained. The Company is hereby ordered to:
Reinstate the grievant to his former position as overhead crane and
lifting equipment engineer, senior.
Make him whole for the loss of earnings and benefits incurred by reason
of the Company’s violation of the collective bargaining agreement.
will retain jurisdiction of this matter for sixty (60) days from the date of
this award for the sole purpose of resolving disputes that may arise over the
remedy order above.
Dated this ____day of October 1997.
Jack H. Calhoun