1997 NAC 120 City of Coos Bay, Or. and Coos Bay Municipal Employees, Local 2892

Title: City of Coos Bay, Or. and Coos Bay Municipal Employees, Local 2892
Date: October 27, 1997
Arbitrator: Allen Pool
Citation: 1997 NAC 120

This Arbitration arose pursuant to Agreement between the Coos Bay Municipal Employees, Local 2892, AFSCME Council 75, AFL-CIO, hereinafter referred to as the "Union" and the City of Coos Bay, Oregon, hereinafter referred to as the "City", under which C. ALLEN POOL was selected to serve as Arbitrator through procedures of the Oregon Employment Relations Board. The parties agreed that the matter was properly before the Arbitrator and that his decision would be final and binding upon the parties.

The Hearing was held in Coos Bay, Oregon on September 22, 1997 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and argument. The witnesses were duly sworn. The parties submitted posthearing briefs which were exchanged between the parties and provided to the Arbitrator in a timely manner.

Allison Hassler, Esq.                                                   C. Akin Blitz, Esq.
Oregon AFSCME Council 75                                     Lane, Powell, Spears & Lubersky, LLP
1174 Gateway Loop, #112                                         520 S.W. Yamhill Street, Suite 800
Springfield, Oregon 97477                                           Portland, Oregon 97204-1383
541) 726-7774                                                           (503) 778-2156

"The parties shall submit to Arbitrator Pool the following issue as the sole issue to be arbitrated, and shall stipulate that this issue is properly before the Arbitrator under the terms of the collective bargaining agreement:

Whether, under the terms of the collective bargaining agreement, the City had a duty to bargain concerning the impacts of contracting out on employees by virtue of electing to remain in City employment and to bump to a different position/classification, and if so, what remedy, if any, is appropriate for Dave Hudson? (Joint Exhibit No. 1)"

A. ...... While the CITY reserves the right to determine positions to be eliminated, layoffs within each affected job classification shall be determined by the CITY on the basis of employees' seniority within such job classification. ..... Where job classification seniority is the same, city-wide seniority shall be considered.

B. Employees displaced from a higher classification may elect to bump any employee in an equal or lower classification provided the employee meets the minimum experience and training required of that position and the employee is senior to the incumbent to be replaced.

C. Employees laid off shall be placed on layoff lists in order of city-wide seniority. Employees shall be recalled according to such lists as positions equal to or below their previous classification becomes available. An employee accepting a temporary position or a position in a lower classification shall retain recall rights to the previously held classification. Lay off status/recall rights shall continue for twenty-four (24) months.

B. Step 4: ..... The powers of the arbitrator shall be limited to interpreting this agreement and determining if it has been violated. The arbitrator shall not have the power to alter, modify, and add to or detract from the terms of this Agreement. The decision of the arbitrator shall be binding on both parties.

D. Expenses for the arbitrator's services and the proceedings shall be paid by the losing party.........

A. Except as otherwise expressly and specifically limited by the terms of this Agreement, the CITY retains all their customary, usual and exclusive right, decision making, prerogatives, functions and authority connected with or in any way incidental to its responsibility to manage the affairs of the CITY or any part of the CITY. The rights of employees in the bargaining unit and the UNION hereunder are limited to those specifically set forth in this Agreement, and the CITY retains all prerogatives, functions and rights not specifically limited by the specific terms of this Agreement. The CITY shall have no obligation to bargain with the UNION with respect to any such subjects or the exercise of its discretion and decision making with regard thereto, any subject covered by the terms of the Agreement and closed to further bargaining for the term hereof, and any subject which was or might have been raised in the course of collective bargaining but is closed for the term hereof.

B. With limitation, but by way of illustration, the exclusive prerogatives, functions and rights of the CITY shall include the following:

4. To establish, revise and implement standards for hiring, classification, promotion, quality of work, safety, materials and equipment.

5. To contract or subcontract work as may be determined by the CITY; provided that, the effect of such action must be negotiated upon request. Whenever the CITY considers contracting out work that has traditionally been done by the bargaining unit; the UNION shall be notified. The UNION will work with the Department Head or his designee to prepare a competitive proposal for the work under consideration. This proposal will be compared to all other bids.

M. A Maintenance Worker II who is designated as a lead worker will receive a premium pay of 5% of their base salary

An employee working in the classification of Maintenance Worker I may be advanced to a Maintenance Worker II upon meeting the follow criteria:

An employee in the Maintenance Worker II classification may not progress to step V on the salary scale until at three "B" certifications as listed below are obtained. One "B" certification may be substituted for two "A" certifications, or two "A" certifications, or two "A" certifications may be substituted for one "B" certification. A Maintenance Worker I advancing to a Maintenance Worker II will start at Step I on the Maintenance Worker II pay scale and serve a six month probationary period. Existing employees in the job classifications of Utility Worker, Maintenance Worker I and Maintenance Worker II will be placed on the Maintenance Worker II scale at the salary which closest to their current salary, but not less than their current salary. Existing employees in the Maintenance Worker III classification will be considered lead workers and be placed on the Maintenance Worker II scale at the step when, combined with the 5% premium pay, is closest to their current salary, but not less than their current salary. Existing employees will retain their current anniversary date for future step increases. The City may restrict the number of employees in each type of certification (Emphasis add).

The genesis of this arbitration lay in the 1995 salary negotiations wherein the City and the Union agreed to eliminate a classification level, Maintenance Worker III. The City proposed the elimination and the Union agreed. The quid pro quo was that those employees who were classified as Maintenance Worker III, at the time, would suffer no wage loss with being re-classified to Maintenance Worker II. By agreement, the employees would be considered Lead Maintenance Worker IIs and would each receive a 5% premium.

At the time of the above agreement, six (6) employees were classified as Maintenance Worker III. Of the six employees, two were classified as Parks Maintenance Worker III, two were classified as Street Maintenance Worker III, and two were classified as Waste Water Maintenance Worker III. From reading the job descriptions for persons classified as Maintenance Worker III, it was clear that these positions were not designated as lead worker positions. However, the job descriptions for each made it clear that they were expected to exercise some supervision responsibilities as a lead worker at the direction of the Division Foreman (Joint Ex. No. 21). With the change, the six employees were re-classified as Lead Maintenance Worker IIs in their respective divisions: Parks Division, Streets Division, and Waste Water Division. They were also given a five percent premium. The practical effect of this merger was the creation of two Lead Maintenance Worker II positions within each of the three Divisions (Joint Ex. No 21 and No. 2, Second Addendum and Modification of the Agreement).

In early 1996, the City began discussions concerning the possibility of contracting out its waste water operation. The City let out bids and the Union, according to the Collective Bargaining Agreement, submitted a bid for the work in competition with private organizations. In July, the City made the decision to contract out its waste water operation to Operations Management International, Inc. (OMI).

On July 24, 1996, the Union submitted a demand to bargain the impact of the decision

(Joint Ex. No. 6). Impact discussions were scheduled between the City and the Union but the discussions quickly reached an impasse. Without going into the details, circumstances prompted the Union to file several grievances and several unfair labor practice charges. The ensuing dispute continued in the months to follow with the City and the Union finally reaching an agreement on September 17, 1997 on all issues except one. The one unresolved issue became the subject of this arbitration (Joint Exhibit No. 1).

With the contracting out of the City's waste water operation, fourteen (14) City positions were to be eliminated. Aware of and concerned about the impact on the affected employees, the City negotiated, in its contract with OMI, a provision whereby OMI would offer employment to the City's employees working in the Waste Water Department and to any other qualified City employee who might be displaced by bumping caused by the contracting out. OMI did just that. Offers of employment were extended to all waste water employees who were laid off and to two other employees who were displaced by bumping. OMI's offer of employment included a salary that was to be the same as what each employee had with the City and a benefit package similar to that of the City's (Exhibit No. 13).

Ten employees from the former Waste Water Division accepted OMI's offer of employment. One did not, the Grievant. The Grievant received a lay-off notice from the City on August 7, 1997. The lay-off notice informed him that he would be receiving a job offer from OMI. The lay-off notice also reminded him of his lay-off rights under the Collective Bargaining Agreement with respect to recall and bumping (Exhibit No. 14). On August 9th, two days after receiving his lay-off notice, the Grievant received an offer of employment from OMI. The Grievant, however, rejected the offer extended to him by OMI (Exhibit No. 13). Very shortly afterward, the Grievant exercised his rights under the Agreement to bump Tom Jackson in the Parks Division (Joint Ex. No. 16).

On August 15, the City assigned the Grievant to Mr. Jackson's position in the Parks Division. It was noted in the reassignment letter that the position he was being assigned to was not a lead position (Exhibit No. 15). Since it was not a lead position, the City determined that the Grievant was not entitled to the five (5%) premium he had been receiving as lead worker II in his former position in the Waste Water Division. This was the core of the one unresolved issue resulting from the City's decision to contract out which became the subject of this arbitration.

The City had a contractual duty, a requirement to bargain the impact of contracting out on employees who elected to remain in City employment and bump. Employees who remained with the City should not have to suffer a pay reduction. It was the Union's understanding that with the agreement to eliminate the

Maintenance Worker III classification and reclassify them as Lead Maintenance Worker II, the affected employees would maintain the five percent (5%) premium for as long as they stayed in the Maintenance Worker II classification regardless of the position he or she occupied. In fact, the parties agreed to "red-flag" the five percent (5%) premium for each of the employees.

The Second Addendum to the Collective Bargaining Agreement , Article 13(M), was violated when the Grievant, exercising his bumping rights, was reassigned to the Maintenance Worker II position in the Parks Division and not given a five percent (5%) premium. The City was also in violation of Article 9, Lay-Offs in the Agreement. While Article 9 provides one remedy for layoffs, the Agreement binds the City to consider other potential solutions if offered by the Union.

The Grievance should be sustained. The Grievant should have received his premium pay and he should be made whole for all lost premium pay retroactive to his reassignment to the Parks Division.

The City did not violate the Collective Bargaining Agreement. There was no contractual duty to bargain the impact of contracting out on employees who elected to remain in City employment and bump to a different position/classification. Nor was there a violation of Article 13 (M), the Second Addendum, to the Agreement. In matters relating to lay-off , Article 9 of the Agreement controls. When the Grievant's Lead Maintenance Worker II position in the Waste Water Division was abolished, he was allowed to use his seniority and to bump.

The Agreement may not be construed to confer a right not expressed in the language of the Agreement. The five percent (5%) premium pay was not "red-flagged ". The Grievant was not entitled to receive premium pay because he was not working in a lead worker position. There was no breach by the City of its contractual duty to bargain. Therefore, the Grievance should be denied.

Joint Exhibit No. 1 was clear evidence that the City met its duty under the Collective Bargaining Agreement to bargain the impact of its decision to contract out the waste water operation. The Settlement Agreement expressed a resolution between the parties on all issues except for the one issue placed before the Arbitrator in this case. That issue was whether the City had a duty under the Collective Bargaining Agreement to bargain the impact of the contracting out on those employees who elected to remain in City employment and bump.

When the Grievant received his lay-off notice on August 7th, he was, according to Article 9 of the Agreement, placed on the lay-off list. Article 9 clearly expresses the intent of the parties with respect to the rights of lay-off employees as it concerns recall and bumping. After the Grievant rejected the offer of employment extended to him by OMI, he exercised his contractual right to bump into a position occupied by person with less seniority. Who the Grievant could bump and what position he could bump into was limited, however, by his seniority. At

the time, all of the Lead Maintenance Worker II positions were occupied by employees with more seniority than the Grievant. Therefore, he could not bump into a Lead Worker position. Given this restriction, he bumped into a non Lead Worker II position occupied by Tom Jackson in the Parks Division. The position was a Maintenance Worker II position and did not carry with it a five percent (5%) premium pay.

The Union contended that the Grievant was entitled to the premium pay because Article 13(M) "red-flagged" the premium pay to him regardless of the position. The Union's argument was not supported by the record. My analysis of Article 13(M) and the relevant evidence led me to the conclusion that the premium pay was not "red-flagged" to the person. The language clearly reflects the intent of the parties that an employee receives premium when occupying a lead worker position.

The Union further contended that while Article 9 provides a remedy for layoffs, the Agreement binds the City to consider other potential solutions if offered by the Union. Again, the evidence record did not support the Union's argument. The clear language of Article 9 reflects the intent of the parties with respect to Lay-offs and is controlling in this instance. Furthermore, the language of Article 9 cannot be construed, as argued by the Union, to bind the City to consider other options.[1] For me, the Arbitrator, to accept the Union's argument would be a violation of the limits on the Arbitrator's authority as proscribed by the Collective Bargaining Agreement: "The arbitrator shall not have the power to alter, modify, and add to or detract from the terms of this Agreement" (Article 12 (B)(4), Grievance Procedure).

Therefore, for the reasons above, it is the decision of the Arbitrator that the City did not have a contractual duty to bargain the impact of contracting out on employees who elected to remain in City employment and bump. The Grievance is denied.

The Grievance is denied. The City did not have a duty to bargain concerning the impacts of contracting out on employees by virtue of electing to remain in City employment and to bump to a different position/classification.

[1]The Union's reference to the agreement concerning Tommy Crawford was not considered by the Arbitrator. The parties agreed the effect of Paragraph 2 in the Settlement Agreement would not be binding in any future proceeding between them and would not establish a past practice or precedent (Joint Exhibit No. 1).