Title: Engineers & Scientists Guild, Lockheed Section and Lockheed Advanced Development Co.
Date: October, 1997
Arbitrator: Jack H. Calhoun
Citation: 1997 NAC 116

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

LOCKHEED ADVANCED DEVELOPMENT COMPANY, )

 a DIVISION OF LOCKHEED MARTIN CORPORATION,                )

                                                                                                                )                               OPINION

and                                                                                                         )                               AND

                                                                                                                )                               AWARD

ENGINEERS AND SCIENTISTS GUILD, LOCKHEED )

SECTION )

FMCS NO. 96-10731

KEITH SENSING GRIEVANCE

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

DECEMBER 19 and 20, 1996

MAY 22 and 23, 1997

REPRESENTATION

FOR THE COMPANY:                                                                          FOR THE GUILD:

Carl Hilberg Tim Guercio

Human Resources Contract Administrator

Lockheed Martin Skunk Works Engineers and Scientists Guild, Lockheed Sec.

1011 Lockheed Way 40015 North Sierra Highway, Ste B250

Palmdale, California 93599-3715 Palmdale, California 93550

BACKGROUND

            The 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.

ISSUE

            The 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?

RELEVANT CONTRACT PROVISIONS

            The following provisions of the parties’ collective bargaining agreement are relevant to the issue in dispute:

            Article I, General Provisions

Section 1 — Recognition and Jurisdiction

The 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 following paragraphs.

            . . .

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.” . . .

            . . .

Section 3 — Right to Manage Plant

The 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 Company.

            Article IV, Employment Conditions.

            Section 1 — Basis of Seniority and Establishment of Seniority Rights

Seniority 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.

STATEMENT OF FACTS

            The 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 organizations. 

            The 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.

            In 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.

            In 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.

            Despite 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.

            Sometime 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.

            In 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.

            The 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.

            After 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.

            Sometime 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.

            Mr. 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.

            The 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 policies.

            On 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.

            The 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.

            Despite 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 1995.

            The 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.

            Although 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.

            The 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 work.

            The 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.

            The 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

            The 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.

            Such 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.

            Again 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 agreement.

            Arbitrator 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 represented units.

            The 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.

            The 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.

            According 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.

            Since 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

            The 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.

            The 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.

            The 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.

            The 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.

            The 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.

            Article 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 1981).

            There 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.

            As 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 additional inspections.

OPINION

            The 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 support.

            The 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.

            Unions, 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.

            Although 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.

            Article 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.

            Section 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.

            The 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.

            The 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.

            The 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.

            Those 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.

            In 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.

            In “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:

“It 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.

“What 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.”

            The 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.

            Under 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.

            In Boeing 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.

            The 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. 

            Management 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.

            Contrary 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.

            That 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.

            In 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.

AWARD

            The grievance is sustained.  The Company is hereby ordered to:

            1.  Reinstate the grievant to his former position as overhead crane and lifting equipment engineer, senior.

            2.  Make him whole for the loss of earnings and benefits incurred by reason of the Company’s violation of the collective bargaining agreement.

            I 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

106-96CA 

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