Title: City of Coos Bay, Or. and Coos Bay Municipal
Employees, Local 2892
IN ARBITRATION PROCEEDINGS PURSUANT TO
AGREEMENT BETWEEN THE PARTIES
Coos Bay Municipal Employees, Local 2892 )
AFSCME, Council 75, AFL-CIO )
- and -
OPINION AND AWARD
City of Coos Bay, Oregon
October 27, 1997
Involving: Contract Interpretation
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.
For the Union
For the City
Allison Hassler, Esq. C. Akin Blitz,
"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)"
COLLECTIVE BARGAINING AGREEMENT
Article 9 - Layoffs
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
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.
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.
Article 12 - Grievance Procedure
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
Expenses for the arbitrator's services and the proceedings shall be paid
by the losing party.........
Article 29 - Management Rights
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.
With limitation, but by way of illustration, the exclusive prerogatives,
functions and rights of the CITY shall include the following:
To establish, revise and implement standards for hiring,
promotion, quality of work, safety, materials and equipment.
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.
Second Addendum and Modification
A new Section M shall be added to Article 13 to read as follows:
A Maintenance Worker II who is designated as a lead worker will receive a
premium pay of 5% of their base salary
employee working in the classification of Maintenance Worker I may be advanced
to a Maintenance
Worker II upon meeting the follow criteria:
and on-half years of service as a Maintenance Worker I
of three "A" certifications as listed below.
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
(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.
POSITION OF THE UNION
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.
POSITION OF THE CITY
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. 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
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
C. ALLEN POOL
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).
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