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Title: Lincoln County Employees Association and Lincoln County, Nevada
Date: July 21, 1998
Arbitrator: David Robinson
Citation: 1998 NAC 114

LABOR ARBITRATION UNDER AMERICAN ARBITRATION ASSOCIATION RULES

LINCOLN COUNTY EMPLOYEES                   )     79 L 390 00076 97

ASSOCIATION,                                                   )   AWARD:  LONGEVITY PAY

            and                                                             )      ARBITRATOR:

LINCOLN COUNTY, NEVADA.                        )    DAVID  K. ROBINSON, J.D.

_________________________________            )

 

APPEARANCES

            For Lincoln County: Charles P. Cockerill of Bischof, Hungerfore, & Cockerill,
415 West 2nd Street, Carson City, NV 89703, (702) 884-4300.

            For Employees Association: Rusty D. Jardine and Gary D. Fairman of Gary D.       Fairman, P.C., 425 Fifth Street, PO Box 5, Ely, Nevada 89301; (702) 289-4422.

ISSUES (STIPULATED)

1.         Whether the dispute is arbitrable, i.e. whether the arbitrator has procedural and substance jurisdiction over this dispute; and

2.         Whether Lincoln County violated the negotiated agreement by failing to compensate employees in accordance with the October 5, 1992 addendum  (Article 11- Longevity) to the then existing Collective Bargaining Agreement (“CBA”).  If “yes,” what is the appropriate remedy?

WITNESSES

            Lorena Stever; Sarah Ann Lloyd, Commissioner Edward E. Wright (adverse); and Daniel C. McArthur. C.P.A.

RELEVANT CONTRACTUAL PROVISIONS (CBA of July 1, 1992)

           The CBA between the Board of County Commissioners of Lincoln County, Nevada and the Lincoln County Employees Association-Clerical Workers effective July 1, 1992 and Article 11 (Salaries) augmented by Article 11’s, Longevity Pay included and made a part of the Salary Article as an addendum.  The longevity article was agreed upon and executed by the Board of Lincoln County Commissioners and the Lincoln County Employees Association - Clerical, signed by Lorena Stever for the Association.  The addendum was stated to be effective October 5, 1992.  NOTE: For comparison between Article 11 (Salaries) and Article 11 (Longevity Pay) see paragraphs 20 and 21 of Facts beginning on page 9 infra.

ARTICLE 11 (SALARIES)

           . . .

ARTICLE 11 (LONGEVITY PAY) (as added to Article 11 (SALARIES)

            Each employee covered by this agreement shall receive longevity pay at a rate of 5% of his/her current wages at the 4-year anniversary date of hire.  Said employee will get additional 5% longevity pay raises on the 8 year anniversary date, 12 year anniversary date, 16 year anniversary date, 20 year anniversary date, 24 year anniversary date, and so on  . . .   “[Sic].”

            After the first longevity pay raise, each succeeding longevity step shall be compounded on the preceding longevity step(s).  LONGEVITY IS A PART OF AND INCLUDED IN EACH STEP IN THIS PRESENT CONTRACT.  NO ADDITIONAL CALCULATIONS ARE REQUIRED.  Example: An employee making $1,000 monthly base pay with a longevity step would be making 1,000.00 + 5% = $1,050.00.  When that employee qualifies for the second longevity step, the pay would be computed by taking the base salary $1,000.00 + 5% = $1,050.00 + 5% = $1,102.50, and so on.  Said increases to be paid each payday.  (Upper Case and underline supplied).

This shall be an addendum and part of Article 11 - Salaries.  To be effective October 5, 1992.  (Emphasis added).

Board of Lincoln Country Commissioners

            S/S by Three County Commissioners including Edward E. Wright

Lincoln County Employee Association - Clerical

            S/S Lorena Stever

            ARTICLE 16 (GRIEVANCE PROCEDURE)

1. GENERAL

A. Definitions

            (1) Grievance:  A grievance is a dispute by one or more employees of the Association   concerning the interpretation of application of an expressed provision of this agreement.

            (2) Grievant:   A county employee . . .covered by the. . . agreement and who is adversely affected by the matter being grieved.

            .  .  .

B.  All grievances shall be filed in writing; shall be dated as of the date filed; and shall specify the  . . . provision alleged to have been violated.  The grievance shall also specify the facts, including names, dates, etc., which are alleged to constitute the violation. 

            . . .

D.        Any of the time limits . . . may be waived upon the mutual written agreement of both parties.

2.  PROCEDURE

                        Step 1

            The aggrieved employee shall take up the grievance with his/her immediate supervisor or, . . . with the next step of supervision within fourteen (14) days of when the employee knew or should have know of the occurrence giving rise to the grievance.  The supervisor shall attempt to adjust . . . The supervisor shall render a decision in writing to the grievant within seven (7) days after receipt of the written grievance. (Emphasis added).

                        Step 2

            In the event the grievant is not satisfied with the Step 1 written response to the grievance, he/she may refer the grievance in writing to the County Commissioners within (7 ) days after receipt of the written response. (Emphasis added).

            The Commissioners shall render a decision in writing within seven (7) days after receiving the grievance. (Emphasis added).

                        Step 3

            If the grievant is not satisfied at Step 2 within fourteen (14) days of receipt of such decision, he/she may request in writing for arbitration to the supervisor. (Emphasis added).

                        . . .

            ARTICLE 17 (SAVINGS CLAUSE)

            1.         This . . . is the entire agreement of the parties . . .  [T]he County shall, from time to time, meet with the Association to discuss its view relative to the administration of this agreement; the Association may request discussions if it wishes.

            . . .

            ARTICLE 18 (AMENDING PROCEDURES)

            If either party desires to modify or change this agreement   . . . , except that no amendments or modifications to this agreement shall be made except by the mutual agreement of the parties or through provisions of Article 17-Savings Clause herein.    [A]ny amendments that may be agreed upon or awarded shall become and be a part of this agreement without modifying or changing any of the other terms of this agreement.  Any amendments that may be agreed upon or awarded shall become and be part of this agreement without modifying or changing any of the other terms of this agreement.     . (Emphasis added).

            ARTICLE 19 (DURATION OF AGREEMENT)

            This agreement . . . from and after the 1st day of July 1991 . . . [T]his agreement shall consist of a four (4) year period and shall remain in effect until 

a new agreement is entered into . . . through  collective bargaining or unless amended in accordance with Article 17 . . .   .

 

RELEVANT STATUTES AND RULES

AAA Labor Arbitration Rules (January 1, 1996)

1.  Agreement of Parties

The parties shall be deemed to have made these rules a part of their arbitration agreement whenever in a collective bargaining agreement (hereinafter the AAA) they have provided for arbitration by the American Arbitration Association . . . . Or under its rules. .

.   .  .

28. Evidence

[T]he arbitrator shall be the judge of the relevance and materiality of the evidence offered and conformity to legal rules of evidence shall not be necessary.

Nevada Revised Statutes / Regulations

            NRS 38.015.  NRS 38.015 to 38.205, inclusive, (The Uniform Arbitration Act.).  NRS 288.010 et seq., (Local Government Employees -Management Relations Act).  Nevada Administrative Code (NAC) embodying regulations adopted under the Nevada State Personnel System Act.

Common Law Relating to Arbitrability

            Unless parties clearly and unmistakably provide otherwise in their agreement, question of arbitrability is to be decided by district court, not arbitrator.  Disputes are presumptively arbitrable and court must resolve all doubts concerning arbitrability of subject matter of disputes in favor or arbitration.  In making a threshold determination of arbitrability a court, is prohibited from considering the merits of underlying disputes.  (Also, see NRS 38.045, Proceedings to compel or stay arbitration.)

            A question of timeliness of demand (where existence of agreement to arbitrate was conceded or is included in the agreement is a procedural matter to be resolved by the arbitrator because all doubts concerning arbitrability of subject matter of dispute are to be resolved in favor of arbitration.  Exber, Inc. v. Sletten Constr. Co., 92 Nev. 721, 118 P.2d 517 (1976) cited in Clark County Pub.  Employees, supra, International Ass’n of Firefighters, v. City of Las Vegas, 104 Nev. 615, 618, 764 P.2d 478, 470 (1988), International Ass’n of Firefighters, Local 285 v. City of Las Vegas, 112 Nev. Advance Opinion 160, 929 P.2d 954 (1996).

JOINTLY STIPULATED FACTS (DRAWN FROM  MEMORANDA SUBMITTED BY COUNSEL FOLLOWING THE COUNTY’S MOTION TO DISMISS) AND ADDITIONAL FACTS ADDUCED AT THE HEARING OR DRAWN FROM PUBLIC RECORDS  

                        1.         The parties entered into a collective bargaining agreement July 9, 1992.

                        2.         The parties entered into an addendum to the collective bargaining agreement a few weeks later on October 5, 1992 specifically dealing with longevity pay.

                        3          Lorena Stever[1] and the Association [Lincoln County Employees Association] had actual knowledge of the “occurrence giving rise to the grievance” regarding an alleged discrepancy with the computation and payment of longevity pay not later than the end of November 1996.  One Clerical employee who had by November 1996 qualified for longevity pay and within salary step was calculating her retirement and discovered that longevity pay, as she understood it to be, was not actually in her pay.  Ms Stever, shortly after, brought the matter to the attention of Commissioner Wright.  There is no independent supervisory administrative layer between such county employees as Lorena Stever and the Commissioners.

            4.         In mid-December 1996, Lorena Stever orally notified Lincoln County Commissioner Ed Wright of an alleged discrepancy with the computation and payment of longevity pay.  However, a “grievance” was never discussed.  Stever’s affidavit (in Motion to Dismiss), paragraph 6.  By then, Sarah Ann Lloyd, a deputy clerk for Lincoln County had, in November 1996, been calculating what retirement she would be getting and discovered what she believed to be an error to the effect that although she was getting a periodic increase, the increase she was getting was not for longevity pay.

                        5.         When the alleged discrepancy in longevity pay was brought to Commissioner Wright’s attention by Lorena Stever, he suggested that the Clerical Association present the alleged discrepancy with the computation and payment of longevity pay to the entire Board of County [Lincoln County] Commissioners.  Lorena Stever’s Affidavit submitted with Motion to Dismiss, paragraphs 6, 7 & 8.

                        6.         Following the meeting with [Commissioner] Ed Wright, Lorena Stever agendized the alleged discrepancy with the computation and payment of longevity pay for discussion before the County Commissioners on February 5, 1997 and subsequently on February 20, 1997; March 5, 1997; and March 20, 1997. Association Exhibits D, E, G & H submitted with Motion to Dismiss.

                        7.         None of the agendas for February 5, 1997; February 20, 1997; March 5, 1997; or March 20, 1997 characterized the dispute between the Clerical Workers Association and the County Commissioners as a “grievance.”

                        8.         The County Commissioners discussed the alleged discrepancy with the computations and payment of longevity pay with the Association on February 20, 1997 and then refused to take any action to alter the method and computations of longevity pay and announced its decision on March 20, 1997.  Association Exhibits F & I.

                        9.         The County was represented by District Attorney Thomas Dill at the February 20, 1997 and March 20, 1997 Commission meetings referred to in this stipulation.

                        10.       The transcript and minutes of the February 20, 1997 and March 20, 1997 meetings are silent as to any reference to a “grievance” or to the negotiated grievance procedure.  Association Exhibits F & I.

                        11.       Neither Lorena Stever nor any affected employee nor the Association ever filed or processed a written grievance pursuant to Article 16 prior to the County Commissioners March 20, 1997 meeting regarding the alleged discrepancy with the computation and payment of longevity pay.  Opposition Brief, Pg. 5. Lns. 1-24.

                        12.       The County, through the Board of County Commissioners, or the County Attorney never raised the Association’s failure to comply with the express provisions of the grievance procedure (Article 16) prior to discussing the alleged discrepancy on February 20, 1997 or by the time the Board refused to take action on March 20, 1997 after the public meetings about the longevity pay issue.

                        13.       The April 17, 1997 letter from Gary Fairman (Employee’s Ass’n counsel)(County Exhibit 3 to Motion to Dismiss) was not file stamped by the County until April 18, 1997.

                        14.       The County received the June 12, 1997 letter from Rusty Jardine (Employee’s Ass’n counsel).  County Exhibit 4 to Motion to Dismiss.

                        15.       The parties never entered into a written agreement to waive or extend any of the time limits contained in Article 16 of the negotiated agreement pursuant to Article 16(1)(D).

                        16.       On April 17, 1997 by letter from Attorney Gary D. Fairman, retained by the Association as to the longevity issue, to County Attorney Tom Dill and the Lincoln County Board of Commissioners the Association, made it known that he was counsel and that there was concern about longevity pay not actually being made.  In the letter, Mr. Fairman noted that the Board had recently discussed the issue (by then, there had been agenda items and Board meetings about the dispute).

                        17.       On August 22, 1997 through its counsel, Mr. Cockerill acting on the request of District Attorney Tom Dill, the County protested the Association’s August 15, 1997  “Notice of Request for Arbitration” by letter to Gary D. Fairman, counsel for the Clerical Workers Association and unequivocally challenged the Clerical Worker’s Association’s procedural steps as improper under the CBA and raised the issue of nonarbitrability of this dispute.  County Exhibits 5 & 6 to Motion to Dismiss.

 Excerpts:

The parties entered into a collective bargaining agreement on July 9, 1992 and an addendum dated October 5, 1992.

On February 20, 1997, the Association appeared before the County Commission alleging that the County had failed to pay longevity to eligible employees since 1992 based on Association’s now stated interpretation of Article 11 and the October 5, 1992 addendum.  The Commission discussed but took no action.  On March 20, 1997, the Commissioners refused to take action to change the manner in which longevity paid.

On April 17, 1997, you sent a letter to the County Commission requesting in the alternative  . . . or 2) the Association will file “suit”. . [Y]our letter never refers to the negotiated grievance procedure . . . although it does threaten “suit.”

On June 12, 1997 . . .  [N]either you nor Mr. Jardine ever referred to a grievance being filed.  All discussions have been regarding a potential “lawsuit.”

Your August 15, 1997 letter now claims that your April 17th letter was intended as a “grievance” and that the Association is now demanding arbitration . . .  [Y]our April 17 letter never references Article 16 (Grievance Procedure) . . . [O]n its face your letter is a request to discuss the settlement of a potential lawsuit possible amendment of an existing agreement, but it is not a grievance.

To be timely, a grievance needed to be filed within 14 calendar days of the date the affected employee(s) “knew or should have know of the occurrence giving rise to the grievance.”  [Article 16 (2) Procedure Step 1 of the CBA]. [No] affected employee in 1992, 1993, 1994, 1995, 1996 or 1997. Even if construed to be a grievance, which the County contests, your April 17th letter is untimely under the language of Article 16.

Mr. Cockerill goes on to conclude that the letter of April 17, 1997 is not a grievance and the dispute is not arbitrable.

                        18.       In the jointly stipulated facts offered for the previous determination of the Motion to Dismiss, Exhibits 1-6 attached to the County’s Motion to Dismiss may be considered by the Arbitrator for the sole purpose of deciding the County’s Motion to dismiss.  Likewise, Exhibits A-J attached to the Association’s Opposition to the Motion to Dismiss may be considered by the Arbitrator for the sole purpose of deciding the County’s Motion to Dismiss.  Such exhibits were also received, differently numbered, during the case in chief.

            19.       Several employee groups, for illustration but not limitation, Law Enforcement, Roads and Clerical Employees Associations enter into separate CBAs with Lincoln County.  The recognized Bargaining agent for the Clerical workers is the Lincoln County Clerical Employees Association.  There were 6 affected employee members of the Association at the time of the filing of the request for arbitration to the AAA.

            20.       The July 1, 1992 CBA included a step salary increase for the first time in a Lincoln County Employees Association  -  Clerical Workers and Lincoln County Agreement.   The step schedule is expressed by example in 10 columns included in

Article 11, paragraph 1.  A column sampling is:

            Step 3             Step 6             Step 7 (Note there follow columns for Step 8
             1 Yr.                4 Yr.                8 Yr.                Through 10 in 4 year increments).
   
          14l7.69           1641,15          1723.21
             (9.35)              (10.82)            (11.36)

            The 4-year anniversary date of hire triggers the first longevity pay in both Article 11 (Longevity Pay) of the October 5, 1992 addendum to the Clerical Workers CBA and in Article 16 (Longevity Pay) of the Law Enforcement Association Agreement of July 1, 1992.

            Paragraph 4 of Article 11 (Salaries) reads, “An employee shall move to the next step of the salary schedule on the anniversary date of his/her hire date if he/she has completed the years of service required at that step.”  The CBA also included at paragraphs 5, 6, and 7 for a cost of living increase is tied to each salary step.

            21.       Longevity pay became a part of the July 1, 1990 agreement addendum to and became a part of Article 11 (Salaries) effective on October 5, 1992.  A comparison between the Clerical Workers CBA at issue and its amendment and the Collective Bargaining Agreement of July 1, 1992 and its amendment of September 4, 1992 between Lincoln County and its Law Enforcement Employees Association is appropriately expressed here.  Both Lorena Stever and Commissioner Wright signed the amendment and both were witnesses at the hearing   they were the drafters of the amendment.  Both testified that together their Longevity Pay Article 11 of the Clerical Workers CBA was patterned after the Law Enforcement Association’s Agreement.

            Exhibit U-15 is the July 1, 1992 collective bargaining agreement between Lincoln County and the Law Enforcement Association.  The law enforcement agreement includes “LONGEVITY PAY” as its Article 16 at page 17 and includes writing preceding the parties’ signatures, “ Amended September 04, 1992. “[Sic]” To be effective July 01, 1992.”  This writing is contemporaneous with the CBA at issue.

             The Clerical Workers Longevity Article (Article 11) reads:

            Each employee covered by this agreement shall receive longevity pay at a rate of 5% of his/her current wages at the 4 year anniversary date of hire.  Said employee will get additional 5% longevity pay raises on the 8 year anniversary date, 12 year anniversary date, 16 year anniversary date, 20 year anniversary date, 24 year anniversary date, and so on  . . . . . (emphasis added).

            After the first longevity pay raise, each succeeding longevity step shall be compounded on the preceding longevity step(s).  LONGEVITY IS A PART OF AND INCLUDED IN EACH STEP OF THIS PRESENT CONTRACT.  NO ADDITIONAL CALCULATIONS ARE REQUIRED.

Example: An employee making $1,000.00 monthly base pay with a longevity step would be making $1,000.00 + 5% = $1,050.00.  When that employee qualifies for the second longevity step, the pay would be computed by taking the base salary $1,000.00 + 5% =$1,050.00 + 5% = $1,102.50, and so on.  Said increases to be paid each payday.  (Upper case supplied.  Underline emphasis added).

This shall be an addendum and part of Article 11 - Salaries.  To be effective October 5, 1992.  (Emphasis added).

Board of Lincoln Country Commissioners

            S/S by Three County Commissioners including Edward E. Wright

Lincoln County Employee Association - Clerical

            S/S Lorena Stever

            Whereas, the Longevity Pay Article (Article 16) of the Law Enforcement Agreement (Exhibit U-15 reads:

            Each employee covered by this agreement shall receive longevity pay at a rate of 5% of his/her current wages at the 4 year anniversary date of hire.  Said employee will get additional 5% longevity pay raises on the 8 year anniversary date, 12 year anniversary date, 16 year anniversary date, 20 year anniversary date, 24 year anniversary date, and so on  . . . .

            After the first longevity pay raise, each succeeding longevity step shall be compounded on the preceding longevity step(s).

EXAMPLE: An employee making $1,000.00 monthly base pay with a longevity step would be making $1,000.00 + 5% = $1,050.00.  When that employee qualifies for the second longevity step, the pay would be computed by taking the base salary $1,000.00 +a 5% =$1,050.00 + 5% = $1,102.50, and so on.  Said increases to be paid each payday.

                        The only differences between the two are:

                                    (a)       LONGEVITY IS A PART OF AND INCLUDED IN EACH STEP IN THIS PRESENT CONTRACT.  NO ADDITIONAL CALCULATIONS ARE REQUIRED appears in the second paragraph of the Clerical Workers CBA and is not in the Law Enforcement Association’s longevity article;

                                    (b)       “This shall be an addendum and part of Article 11 - Salaries,” appears before the date in the Clerical Workers CBA whereas the language “Amended September 04, 1992” appears without more before a line below reading “To be effective July 01, 1992” and before the following signatures in the Law Enforcement Association’s article.

                                    (c)        The entire word “example” is in upper case in the Law Enforcement Agreement but in lower case in the Clerical Workers Association CBA.

            22.       The official minutes of the Commissioners meeting of October 5, 1992 when the addendum as submitted and approved, note:  “ . . . board agrees with longevity being clarified as part of the step raises and after the 20 years, longevity comes in again every four (4) years at (5%).”  County Exhibit to its Opening Argument.

                        23.       The 1997 population of Lincoln County, Nevada, according to the published estimates of the Nevada State Demographer’s Office, University of Nevada, Reno, and the Nevada Department of Taxation, was 4,110 persons.

SUMMARY OF WITNESS TESTIMONY

            Lorena Stever

            Ms. Stever has been employed by Lincoln County since 1983.  She worked first under the Lincoln County Clerk and, since, has been Justice Court Clerk for Judge Getker since September 10, 1985.  Overall, she has been employed by Lincoln County for about 16 years.  At the time of the addendum to the CBA, she was an officer of the Lincoln County Clerical Workers Association and for the Association on both the CBA and the Addendum.

            An objective of clerical workers in the negotiations of 1992 before the CBA was signed as obtaining a step schedule in salaries (Article 11-Salaries).  Each step was a 5% increase.  After the CBA as signed, they went back shortly after and sought to and did obtain a special longevity pay addendum.  Ms. Stever testified about how the article for longevity pay came about:

Well, in September of ‘92, law enforcement appeared before the commission and had their longevity clarified or extended.  They did an explanation of what longevity was and how it’s figured when it comes - - when it kicks in.  And when I saw that, I thought, you know, that would be -- that was great because we always had problems with calculations of longevity.  (Tr. 31).

           Longevity kicks in at Step 6 (Salary Schedule).  You have to work four full years of service before you can qualify for your additional benefit, which is longevity.  (Tr. 39).

            Longevity was not mentioned in or continued in the CBA (effective July 1, 1992).  She went directly to Commissioner Wright and then bargained with him about longevity.  (Tr. 32).  Article 11 (Longevity Pay) was then prepared and was patterned after the law enforcement contract.  (Exhibit U-15).  The addendum (Article 11-Longevity Pay) was signed in an open meeting of the Board of Commissioners.  (Tr. 48).

            She testified that none of the step schedules (salary steps) reflected longevity since no longevity was in the agreement at the time it was submitted to the Commissioners for their signatures.  The longevity pay kicks in after step 6 of the salary schedule (Tr. 37) In November 1996, another employee (Ms. Lloyd) brought to her attention that she [Ms. Lloyd] was not getting longevity pay.  She understood that upon completing the 4 year (Step 6), an employee would get the step pay plus and additional 5% for longevity because they had worked another four full years.  The purpose of the two extras sentences in the Longevity clause [extra beyond the law enforcement longevity article] was to have built into it the computation for longevity.  Longevity is on top of the step [salary step] and is additional compensation for four full consecutive years of service. (Tr. 43).  The sole purpose of the language was so that everything is calculated in a step including longevity. (Tr. 45).  But, she testified, the compensation figures were not changed to reflect the additional compensation She thought the Recorder/Auditor would make the change to reflect the addendum.

            The two sentences “Longevity is part of and included in each step in this present contract” and “no additional calculations are required” were the joint effort of Commissioner Wright and Lorena Stever.  Ms. Stever testified that she typed what was in the Law Enforcement contract without negotiation with Mr. Wright. Then, when she, talked to Commissioner about it,” he suggested the need for a paper trail on the language and the two sentences (upper case in Article 11-Longevity Pay) were added. (Tr. 66, 67).

            She admitted on cross examination that on her own first payroll check after the Meeting of October 20, 1992 when the Addendum was approved by the Commissioners, she did not get a longevity pay increase but added that she was not then entitled to one because she had not worked an additional four full years and would have had to wait until September 1993 to get it.  (Tr. 62, 63).  She testified that she started in September 1985 and would need to work four full years to September 1989 and that her longevity would not kick in until September of 1993 after another four full years.  (Tr. 68).

            When Ms. Lloyd presented to her the question about why she hadn’t received longevity pay, Ms. Stever went to Commissioner Wright.  At the Commissioners’ suggestion she then, placed the matter before the Board of County Commissioners.

            Sarah Ann Lloyd

            She has been employed as a clerk at Lincoln County since July 5, 1978.  She has been employed in the Lincoln County Clerk’s office since her hire date.  Occasionally she figured her retirement.  In November 1996, she looked at the checks and concluded that she got only a 5% step [salary step] increase in 1994.  (Tr. 74,75).  There was no 5% longevity.  She acknowledged that it was two years after her eligibility date before she first noticed the problem.  (Tr. 85)

            Commissioner Edward E. Wright

            Commissioner Wright is the Chairman of the Board of Lincoln County Commissioners.  Presently there are five Lincoln County Commissioners.  At the date of the CBA and the Addendum, there were three commissioners.  Commissioner Edward Wright corroborated that he had participated in drafting the language of the Addendum Article (Longevity Pay).  The purpose in placing the emphasized [upper case] language in the Addendum to alleviate potential problems “down the road.”  He testified that he thought what the language meant was that the step included both longevity and salary was included in the steps of Article 11 (Salaries).  Otherwise, Commissioner Wright’s testimony about the negotiations with Ms. Stever, the preparation of the Addendum Agreement, and the actions thereafter by the Board of Commissioners was corroborative.  Commissioner Wright testified that he thought longevity was incorporated in the steps of the salary schedule of the Agreement.

            Daniel C. McArthur

            Mr. McArthur is engaged by Lincoln County as its independent auditor.  He was asked to and did prepare a schedule of compensation for affected Clerical Employees based upon the Clerical Worker’s view that the language required a 5% step increase and 5% longevity increase for each employee eligible for longevity.  Mr. McArthur takes no position about the language of the contract or its meaning for purposes of this arbitration.

POSITIONS OF THE PARTIES

            Lincoln County

            The CBA in its Article 18 requires that any amendments shall become and be part of the agreement without modifying or changing any of the other terms to the agreement.  The written addendum approved and signed by the parties speaks for itself and under Article 18 does not modify or change any of the other terms of the agreement.  Lincoln County has paid longevity in strict accordance with the 1992 addendum from October 5, 1992 to the present time, based upon the 1992 ten (10) step salary/step schedule as increased by the Consumer Price Index provision then included in Article 11-Salaries included in the CBA.  Moreover, the County Commissioner’s official Minutes where the addendum was approved used the clear language, “ . . . board approves the Longevity being clarified as part of the step raises . . . longevity comes in again every four (4) years at (5%).”  County Exhibit 5.

            The salary step increase of 5% plus a longevity pay increase of 5% as argued by the association would produce an absurd interpretation of the disputed language.  Ms. Lloyd who discovered what she thought was a error in her check did not discover it until November 1996 although she admitted knowing about the Longevity Pay article 11 addendum approved on October 5, 1992.  Given her time of service, she acknowledged that she was a step 8 [Salary Step Schedule] on October 20, 1992.  She said she would not be eligible for longevity pay until 1994.

            The Clerical Worker’s argument comes down to asking the arbitrator to insert the word “NOT” before the word “PART” in the addendum’s language  “LONGEVITY IS A PART OF AND INCLUDED IN EACH STEP IN THIS PRESENT CONTRACT.  NO ADDITIONAL CALCULATIONS ARE REQUIRED.

Similarly, Ms. Stever said that she was eligible in 1993.  Yet, Ms. Stever never made a complaint until November 1996 when Ms. Lloyd approached her and when Ms. Stever agreed that longevity pay as such was not included in Ms. Lloyd’s payroll checks.  Ms. Stever was a step 6 at the time the CBA was negotiated in July 1992 and eligible for an increase in July 1996.

            Clerical Workers Association

            The County’s argument disembowels the Longevity Pay Article.  If the steps of the salary schedule have all necessary calculations and constitute longevity, the Association ‘bargained away’ longevity in favor of simple 5% step raises that already existed in the CBA.  Logically, the steps in the salary schedule constitute a base salary.  In the addendum all reference is to longevity, pay with the exception of where it refers to “existing wages” as the starting point for additional longevity pay of 5%.

            The County implicitly is asking the arbitrator to delete or alter the addendum stating that LONGEVITY IS A PART OF AND INCLUDED EACH STEP IN THIS PRESENT CONTRACT.  NO ADDITIONAL CALCULATIONS ARE REQUIRED.  [Example of a calculation using $1,000 monthly base pay follows the language].

            There is nothing in the salary schedule indicating that step increases are in lieu of longevity pay.  Longevity pay is not mentioned in the Salary Schedule or Article 11 (Salaries) of the CBA.  The first mention of longevity pay appears in the Addendum.

PROCEDURAL BACKGROUND

            The issue of arbitrability was decided in favor of arbitrability by my written decision on February 7, 1998.  The County argued forcefully that no formal demand for arbitration had been made as required under the collective barraging agreement  (“CBA”) and that a 14 day deadline had long since passed.  The Association argued that the County’s actions considered from time after it was brought to the Commissioner’s attention that the Association believed longevity pay was not being given as required under the CBA’s addendum amounted to a wavier of the technicalities of filing a grievance.   

            At the hearing, Lincoln County renewed its Motion to Dismiss on the ground that the arbitrator is without procedural or substantive jurisdiction. 

            Lincoln County objected to allowing introduction of any parol or extrinsic evidence relating to the agreement and addendum and to any agreements between Lincoln County and other Lincoln County employee associations.  Each of the principal objections shall be dealt with separately.

DISCUSSION

Arbitrability Issue

            Both parties had previously filed memoranda and exhibits in support of their positions, for Dismissal and in Opposition to Dismissal on the arbitrability issue.  Counsel for the parties there limited the Arbitrator’s authority on the procedural issue by their joint fact statements that Exhibits 1-5 of the County’s Motion to Dismiss and Exhibits A-J of the Association’s Opposition to the Motion to Dismiss may be considered by the Arbitrator for the sole purpose of deciding the County’s Motion to Dismiss.  The limitation barred any foray into the merits of the case in deciding the motion.  The Motion to Dismiss was reasserted during the opening argument by counsel for the County and will now be considered again.

                                             The exhibits extensively revealed that there were sharp differences of opinion as to whether the longevity pay article of the CBA had been properly followed.  There were a number of meetings between representatives of the Clerical Workers Association and one or more Members of the Board of Commissioners beginning in November 1996 and continuing until early in 1997.  It became increasingly clear that interpretation of “longevity pay” in the addendum and how it related to salary steps was in dispute.  There were differences of opinion between the County Commissioners and the affected Association employees about what longevity pay actually encompassed in the salary scheme because the employees thought they were being denied longevity pay.  There was concern expressed about how the terms “step” and “longevity” should be applied.  The confusion was extensively revealed in the exhibits to the Motion to Dismiss, the Opposition to the Motion and the testimony adduced at the hearing on the merits.  The original request for a review of the dispute about whether or not longevity pay was being made, as the Association believed it should have been was given in a personal conversation between Lorena Stever and the Chairman of the Board of County Commissioners.  There appears to be no independent layer of management authority between the Commissioners and the Classified Employees members of the Clerical Workers Association.

            On February 8, 1998, I denied Lincoln County’s Motion to Dismiss and held that the matter was arbitrable.  The April 1998 hearing on the merits was then scheduled.

            In the decision (award), I cited only the most recent Nevada Supreme Case standing for proposition that doubts are to be resolved in favor of arbitrability.  In this case, I have cited, supra, the other two cases of the Nevada trilogy standing for the proposition that doubts about arbitrability should be resolved in favor of arbitrability.

            In the previous arbitrability decision on the motion, I readily agreed that the Clerical Employees failed to observe the procedural requirements for grievances.  In reconsidering the matter again, I note that the Employer (Lincoln County) had also not observed all the procedural requirements once it became apparent that a dispute about the language of and application of the longevity pay language was underway.

            The real world of Lincoln County, Nevada must be taken into account.  The population is sparse.  There is an estimated population of 4,110 persons in far-flung Lincoln County.  The elected commissioners and the bargaining unit employees are not strangers to each other.  There appears to be no layer of administrative supervision between them as is contemplated by the CBA.  The relationship between County Management and the Employees Accretion is a relatively informal one.  There are only 6 affected employees who are members of the Association who would be affected by the outcome concerning longevity pay.  There are about 15 dues paying members of the Clerical Workers Association.

            The tiny association has no professional bargaining agent and no specialist labor law counsel.  Neither Lincoln County nor the Association had a labor lawyer assist in drafting the disputed Article 11- Longevity addendum of October 5, 1992.  Testimony adduced at the hearing was that Lorena Stever, an official of the Association and a Justice Court Clerk employee of the County together with Commission Chairman Wright drafted and prepared the amendment, with Ms. Stever acting as typist.  Apparently, there were only informal negotiations leading up to the addendum.

            Lincoln County District Attorney Dill appeared at Commission meetings.  No attorney appeared for the Clerical Workers Association at any stage of the conversations in public and closed meetings between the commissioners and the bargaining unit employees.  The agendas wording and the nature of all meetings made it clear any listener or reader that longevity pay or a need to clarify a perceived problem concerning longevity pay was at issue.

            Attorneys were involved by both sides early in Spring of 1997 after the Commission had collectively decided that it had met its contractual obligation and publicly announced its decision in the presence of clerical association workers who were in attendance at the scheduled meeting.  The announced decision by the Board of Commissioners was given on March 20, 1997.  (Exhibit U-29).

            After the Commissioner’s March 20, 1997 decision, the first written notice to The Commissioner from counsel about any legal or quasi-legal dispute came by a letter from the Association’s appointed attorney, Mr. Fairman, by his letter dated April 17, 1998.  County Exhibit C to Motion to Dismiss.  The letter noted among other things that the dispute was about the Addendum [longevity Pay Addendum] and that the association was writing directly to the board (Board of County Commissioners) since the agreement was between them [there appears to be no formal supervisory staff layer between the clerical staff and the Commissioners as contemplated under the Grievance Procedure steps of Article 16 of the CBA.    Further, there appears to have been no formal written decision from the Commission to the Association about any dispute.  A later writing from counsel for the Association made it known that his letter of April 17, 1997 was intended to be a grievance.  (Letter of August 22, 1998 from Mr. Cockerill, Lincoln County’s attorney of record responding to a writing from the Association’s attorney).

            I now consider the County’s position that the dispute is time barred because nobody complained about the pay discrepancy within 14 days after she knew or should have known of the occurrence giving rise to the dispute.  Grievance Article 16 (2).

            Surely the Board knew there was a dispute about the longevity issue even if the magic word “grievance’’ was not used.  At the several meetings between the Commissioner and the employees who appeared before them, it was unmistakably clear from any reading of public records that the employees were disputing what they saw as a failure by the County to compensate them as set forth in the Longevity Pay Addendum of October 5, 1992.

            Both Lincoln County and the Association overlooked the CBA’s written requirements for Grievance Procedure, particularly insofar as writings at various steps were concerned.  I find that the Association, for all practical purposes, made it clear by its conduct that a dispute about longevity pay was in process.  The Commissioners responded to the dispute by having many discussions at public meetings.  Even though the term “grievance” was missing from the conversations, it was clear that the dispute was not a negotiation.  The collective activities by both parties established that a grievance in all but name was underway.

            Perhaps because of the tiny size of county government, relations between the County Commissioners and their employee bargaining units is informal.  Indeed, neither party followed the Grievance Procedure of the CBA.  For example, there is no supervisory level to fit within Step 1.  The Association went directly to the Commissioners (through Commissioner Wright).  Under grievance procedure Step 2, The Commissioners are to render a decision in writing within seven (7) days.  The Association ignored the written grievance procedure yet the dispute that was a grievance in all but name was allowed to proceed through several public meetings with the Commissioners.  Neither the County Attorney nor any of the Commissioners who had signed on to the CBA and the Addendum questioned the lack of formality as to the dispute about the contract language.  The informality may make for good relations between commissioners and staff but, in my mind, it had the effect of waiving the procedure’s strict application.  There was a dispute over an employer-employee agreement, even though it was never labeled “grievance” is apparent.

            Finally, Nevada common law favors arbitrability.  

            I find again that the matter now before me is arbitrable.  This matter will be considered on its merits and as grievance arbitration.

Parol Evidence Issue

            The parol evidence rule arises from contract law and not from evidence law.  The County cites Elkouri & Elkouri, HOW ARBITRATION WORKS, 412 (4th Ed.) for the proposition that parol (extrinsic) evidence to deny admissibility of oral statements to change or modify a written agreement.[2]    The rule is grounded on the conclusive presumption that parties to a contract know and understand what they are agreeing to.  Here, it is clear that the language of the contract has led the Commissioners and the Association to divergent conclusions about what was agreed upon in the CBA and the addendum to the CBA That fact creates a contract interpretation matter for the arbitrator to decide.  Inasmuch as both counsel for Lincoln County and for the Association referred on occasion to the relatively contemporaneous County Law Enforcement Association CBA of July 1, 1992 and the Addendum for Longevity Article to be added to Article 11 of the Workers Association (October 5, 1992) on the longevity issue, I reviewed the applicable Articles of the 2 CBAs even though one of the 2 is extrinsic evidence.  In deciding the issue or arbitrability, I necessarily considered the language of meting notes, agenda, and counsels’ letters.  The testimony from the 2 persons who negotiated the language was that the language of the Addendum for the Clerical Workers was patterned after the Law Enforcement Association’s CBA.

Distinction Between Rights v. Interest Arbitration:  Impasse

            It is the position of Lincoln County that this matter is a “rights” and not an “interest” dispute.  The arbitrator, the County argues, has no jurisdiction to consider “interest or negotiating issues” or to issue an “interest” award amending Article 11 {Salaries and including Longevity Pay) as it is written to include the amendment of October 5, 1992 to the July 1, 1992 CBA.  Interest arbitration clauses provide a means by which prospective rules and working conditions are determined by an arbitrator instead of by agreement between the union and the employer and deal often with future disputes.  Elkouri and Elkouri, HOW ARBITRATION WORKS at 128  (5th Ed).  In interest arbitration the dispute arises where there is no agreement or where it is sought to change the terms of an agreement and looks forward to acquisition of future rights not the assertion of the rights claimed to have vested in the past [e. g the effective date of the CBA].  In rights arbitration the dispute relates either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case.  Elgin, Joliet & E. Ry. V. Burley, Elkouri & Elkouri, supra at 128, 16 LRRM 749, 65 S.Ct. 1282, 1290 (1945).

            This matter is not interest arbitration.  Here Article 16 (4)  (Arbitration) reads, “Both parties shall mutually or severally set forth the issue(s) to be arbitrated in advance of selecting an arbitrator.”  This is a rights dispute arising under the CBA of 1990 as amended in 1992 by inclusion into the Salaries Article (Article 11) of a longevity provision.  The issue is the meaning or application of the longevity article.  

            This arbitration matter began on September 29, 1997 when Rusty D. Jardine for the Lincoln County Employees Association - Clerical Workers filed a Request for Arbitration on September 29, 1997 to the Las Vegas office of the American Arbitration Association (“AAA”).  Included with the filing was a copy of Article 16.  Lincoln County did not participate in a mutual request or file a separate legal paper.  Charles E. Cockerill, Attorney for Lincoln County then participated with Mr. Jardine in the Arbitrator selection process.  The request stated, ”Dispute has arisen as to interpretation and performance of a clause borne by the collective bargaining agreement dated July 1, 1992 as amended October 5, 1992.”  That the “clause” referred to was the longevity provision is without doubt since up to that time for several weeks there had been ongoing discussions and public and closed  Board of County Commissioners meetings about disputes arising from performance or meaning of the Longevity clause in the Clerical Workers CBA agreed upon and signed by both parties.

            Lincoln County raised a collateral issue about impasse and cited Nevada law, NRS 288.010 et seq., under which factfinders may be appointed after impasse.  The parties are not negotiating.  Impasse is a term for a deadlock between the parties to labor negotiation.  The agreements meaning or application is in dispute.  There has been no attempt to reopen negotiation before the ending date of the CBA of 1992 as amended.  There is no impasse.  The CBA negotiations ended when both parties signed the CBA on July 9, 1992 and the negotiations as to the Addendum of October 5, 1992 to the CBA ended when the parties signed it.

ANALYSIS

            In General: Interpretive Guidelines

            Both parties have cogently argued their points of view.  My decision is a close one.  I have argued and reargued extensively with myself over the decision.  Much of the puzzle in this case arises from the language used in the Addendum apparently to clarify the CBA.  But, the addendum did not clarify, it created the confusion.  Apparently, whether the addendum was to replace the existing salary step language of Article 11 (Salaries) appears not to have been considered.  The language in the addendum making the longevity pay “a part of Article 11-Salaries” did not contemplate for those applying the longevity pay whether it created a new component in a total pay package, an addition to the existing step raise in salary or was designed to be subsumed within the salary steps without being considered a separate obligation for longevity pay.  The answer to that question is now for me to decide.  I realize that for the few employees involved and the affected tiny population of Lincoln County, the decision could have significant impact. 

            Stripped of language of adornment, the problem is this: does the combination of language in Article 11 (Salaries) and in the addendum Article 11 (Longevity Pay) create a 10% or a 5% compensation increase?  The Association says 10% increase is contemplated and the County says, that’s ludicrous, it is only 5%.

            Collective bargaining agreement interpretation is no different from other contract interpretation.  The  interpretation guidelines[3] I will follow here are:

            1.         Although expressly spelled out in the CBA here, an arbitrator should not add to or subtract from the language used by the parties.

            2.         Words are construed in their normal, usual, common sense meaning.

            3.         No words are rejected as surplus age if any reasonable meaning can be found since they are considered to have been chosen intentionally to express a certain meaning.

            4.         Unless the language is ambiguous, the agreement must be judged in its final form of expression and not by statements or arguments made during negotiations.  If ambiguous, an arbitrator or court may consider the antecedent negotiations, actual understanding of the parties, their practices under the agreement by the parties and surrounding circumstances. See also, Margrave v. Dermody Properties, 110 Nev. 824, 828, 878 P.2d (1994) (extrinsic evidence will not be introduced to aid a court in interpreting a contract unless the contract contains ambiguities).  A contract is ambiguous if it is reasonably susceptible to more than one interpretation.  Agric. Aviation v. Clark Co. Bd. Commisr’s, 106 Nev. 396, 398, 794 P.23 710, 712 (1990).  Parol evidence is admissible to prove mutual mistake, unilateral mistake, or inadequate consideration.  Chwialkowski v. Sachs, 108 Nev. 104, 834 P.23 r05 (1992).

            5          The agreement is considered as a whole.

            6.         A reasonable, realistic, and broad construction will be given to an ambiguous clause to achieve its evident aim and purpose.  Absurd or unjust results are to be avoided.  A reasonable interpretation of a contract is always preferred to one that results in a harsh and unreasonable contract.  Sterling v. Goodman, 102 Nev. 218, 220, 719 P.2d 1262, 1263 (1986)

            7.         If a public purpose is affected, an interpretation favoring the public is preferred.   In other words, the presumption is to resolve ambiguities in favor of the government.

            8.         A provision that my be interpreted to mean two different things must be resolved against the proposing party. Similarly, the language is construed against the drafter if there is more than one meaning unless its use by him was required by law.[4]

            9.         An interpretation is preferred which gives reasonable, lawful, and effective meaning to all the manifestations in the writing.  If possible, all clauses and provisions should be construed as to harmonize with one another.  Also, see, Dickenson v. State, Dept. of Wildlife, 110 Nev. 934, 937-38, 877 P.2d 1059 (1994).

            10.       Intent is construed to give effect to the date at which the parties entered into the contract.

            11.       In the absence of fraud or mistake, prior negotiations and verbal agreements are merged into the contract (the parol evidence rule).

            12.       Where general words follow the enumeration of particular kinds of things the general words will, unless a contrary intent is manifested, be as applicable only to things of the same nature or class as those specifically enumerated (Ejusdem generis).

            The Ambiguity Created

            The word “addendum” used with the language of Article-11 Salaries in its Longevity article is being construed to mean an addition to the CBA.  Addendum is a thing added to or to be added to.  BLACK’S LAW DICTIONARY (6th ed.).  The Board of County Commissioners met and approved the addendum and announced its approval by official minutes of the October 5, 1992 meeting.  Exhibit 5 to County’[s Opening Argument.  I am also construing the term “addendum” as used in Article 16 (Longevity Pay) to be the equivalent of “amendment.”

            Standing alone, the language of Article 11 (Salaries) is clear.  Standing alone, the language of Article 11’s addendum is also clear.  But when the two are blended together into the same article as dictated by the addendum, the clear language of both becomes an ambiguous mix.

            Neither “longevity” nor “step” as used in the CBA is defined in the CBA.  Further “longevity step” is not defined or used in a way necessarily suggesting or requiring it to be used interchangeably with the word “step” as used in Article 11 (Salaries) before the word “longevity” was introduced into the addendum agreement by Article 11 (Longevity Pay).

            “Longevity pay,” in the parlance of personnel and employment law describes a form of compensation recognizing long-term service of full and sometimes of part time employees.  It is often called “length of service” or ”continuity of service” compensation.  Eligibility terms governing steps and longevity are controlled in private employment by employer’s policies or by collective bargaining agreements and by administrative regulation and statutes or by collective bargaining agreements in public employment.  The term “step” ordinarily refers to a specific rate of pay within a specific grade or job classification of the employee.  See, e.g. Nevada Administrative Code, N.A.C. 284.102.  The word “longevity” or the term “longevity pay” is not defined in the CBA.

            Here, the term “step” is used in Article, 11 (Salaries) of the CBA in two different ways:  First, it is used in a column heading (see Number 20 in facts), and second as a incremental step upward in salary in a paragraph explaining its usage in pay calculations.[5]  At paragraph 4 of Article 11 (Salaries), the language is “An employee shall move to the next step of the salary schedule on the anniversary of his/her hire date if he/she has completed the years of service required at that step.”

            Article 11 (Salaries) at paragraph 5 provides for Consumer Price Index  (“CPI”) increases.  CPI increases are not at issue here since the opposing parties acknowledge that there is no dispute about CPI increases and that CPI has been paid as required by the CBA.

            The Clerical Employees Association bargained for and received a step salary increase for the first time in the CBA of July 1, 1992.  The step salary increase is from Step 1 through 10.  Under Article 11 (Salaries), paragraph 2, an employee is placed on the salary schedule according to her or his years of service with the county as of July 1, 1992.  Step 1 is starting; Step 2 is 6 months; step 3 is 1 year; step 4 is 2 years; step 5 is 3 years.  Thereafter each numbered step is a 4 year increment beginning at step 6 (4 years); step 7, 8 years; step 8, 12 years; step 9, 16 years; and step 10 at 20 years.

            When an employee moves to the next higher salary “step” expressed in paragraph 4 of Article 11 (Salaries) and is expressed as: “An employee shall move to the next step of the salary schedule on the anniversary of his/her hire date . . .  . “   (Emphasis added).

            In the first paragraph of Article 11 (Longevity Pay), the addendum entered into 3 months and a few days later (October 5, 1992), there is also a tie to the anniversary date of hire but now “longevity” appears as a modifying word. There “longevity” is expressed in its paragraphs 1 and 2:

            Each employee covered by this agreement shall receive longevity pay at a rate of 5% of his/her current wages at the 4 years anniversary date of hire.  Said employee shall get 5% Longevity pay raises on the 8 year anniversary date. . .  and so on . . . .    .  (Emphasis added).

            After the first longevity pay raise, each succeeding longevity step shall be compounded  on the preceding longevity step(s).             LONGEVITY IS A PART OF AND INCLUDED IN EACH STEP IN THIS PRESENT CONTRACT.  NO ADDITIONAL CALCULATIONS ARE REQUIRED.  Example : An employee . . . to be paid each pay day.          (Upper case emphasis supplied).

This shall be an addendum and part of Article 11 - Salaries.  (Emphasis added).

            The term “step” is used in a different manner in Article 11 (Longevity) as compared to Article (11 (Salaries).  When used in the Salaries Article 11 and its following explanatory paragraphs, the connection is clearly to a salary schedule.

            The addendum Article 11 (Longevity) carries the language, “This shall be an addendum and part of Article 11-Salaries.”  (Emphasis supplied).  There is no mention in the language to suggest that the Longevity addendum replaces the existing Article 11 (Salaries) and its inclusive columnar salary step increases.  In Article 11 (Salaries), the step increases are based upon date of hire as in Article 11 (Longevity Pay).  Only the columns show salary increases and they are clearly based upon number of years of work but makes no mention there that the compensation is a compensation for time in service step inside of for a salary step.  The salary steps are within a section of the CBA entitled “LINCOLN COUNTY CLERICAL UNIT SALARY SCHEDULE.”  That the fourth anniversary date of hire triggers longevity pay too is clearly expressed in the first paragraph of the two paragraph Addendum Article 1.

            The ambiguity is thus created.  Does the blending of Article 11 (Longevity Pay and) showing a salary figure in columnar display and other salary language of Article 11 (Salaries) (under the heading “LINCOLN COUNTY CLERICAL UNIT SALARY SCHEDULE.” limit periodic compensation increases to 5% by considering that the word “salary” and the words  “longevity pay” as used in Article 11 (Longevity Pay) are interchangeable or have the same meaning for purposes of the CBA? Or, should salary step and longevity step be construed as different pay components for pay calculation, making a mandatory incremental pay increase of 5% for salary plus a longevity increase of 5% making a total of 10%?

            Interpretation of the CBA and its Addendum

            Article  11 (Salaries), looks to date of hire for pay steps.  A person’s time served is an element of the pay received.  A salary step was negotiated and first appeared in the CBA signed on July 1, 1992.  Looking at the employee’s years of service and then placing the number of years under the appropriate step number determine what salary a classified employee was to earn under the CBA.  For example, an employee at Lincoln County for 8 through 11 years from date of hire would be paid $1,723.21 per month.  Unlike in larger employers there are no grades within classifications.  An employee whose date of hire was 3 years before the CBA triggering date of July 1, 1992 would be placed in step 5.  The pay differential between each step in the salary schedule is 5%. 

            When longevity pay was put into the compensation mix by the addendum of October 5, 1992, 5% was again chosen as the differential.  Witness Sarah Ann Lloyd was employed on July 5, 1978 and was almost a 20-year employee (Salary Step 10) on the triggering date of July 1, 1992 for placement on the salary schedule.  Longevity Pay Article 16 created a 5% longevity pay increase every 4 years at anniversary date of hire.  An example of computation was given in Article 16 (Longevity Pay) using monthly base pay as it introduced the term “base pay” into the compensation formula.  “Base pay” does not appear in Article 11 (Salaries).  Neither does Longevity Pay appear there.  “Base” pay is usually thought of as the periodic (e.g. monthly) pay excluding all fringe benefits.  (See for example, NRS 286.020(2)(a) within the Nevada Pubic Employees’ Retirement Act.  The example makes clear that Article 16 (longevity Pay) contemplates that longevity pay is over and above base pay at a rate of 5%.

            I cannot add or eliminate words used by the parties in the Agreement.   Although the word “addendum” appears before the signatures of the three Commissioners and Lorena Stever to  Article 11 (Longevity Pay), I am construing the word to mean “amendment” and follow Article 18 of the CBA.   I take this latitude , Article 18 is the only proviiosn allowing for modiciaton or change to the agreement.  There the language is:

If either party desires to modify or change this agreement   . . . , except that no amendments or modifications to this agreement shall be made except by the mutual agreement of the parties  or through provisions of Article 17-Savings Clause herein.   .    . [A]ny amendments that may be agreed upon or awarded shall become and be a part of this agreement without modifying or changing any of the other terms of this agreement.  Any amendments that may be agreed upon or awarded shall become and be part of this agreement without modifying or changing any of the other terms of this agreement.  (Emphasis added).

What the parties did was amend the agreement although they used the word “addendum” instead of “amendment.”  There is no question that the addendum was agreed upon since it bears all the necessary signatures and was authenticated at a Meeting of the Board of Lincoln County Commissioners.

            Article 16 (Longevity Pay) as agreed upon says, before the signatures, “This shall be an addendum and part of Article 11-Salaries.”

            I am concerned, as particularly was counsel for Lincoln County, about the time delay in giving notice to Commissioner Wright about the alleged longevity pay problem.  That the missing longevity pay of 5% wasn’t questioned until November 1996 is puzzling.  On one hand, Ms. Stever testified that she thought the County Clerk would make the changes to payroll calculations after the addendum was signed.  Commissioner Wright testified at the hearing that he understood at the time that the step was made that longevity was in there.  (Tr. 94). While it is true that the number of years of service governs salary increases, it doesn’t necessarily follow that the Longevity Pay Addendum is not a separate component of compensation.  The Salary Article 11 included in the CBA before the creation of Article 11 (Longevity Pay) states

            . . .

            2.         Employees shall be placed on the salary schedule according to their years of service with the county on July 1, 1992.  No employee shall be reduced in salary by being placed on the salary schedule

. . .

            4.         An employee shall move to the next step of the salary schedule on the anniversary of his/her hire date if he/she has completed the years of service required at that step.

            Whereas in Article 11 (Longevity Pay), the time when longevity pay kicks in is stated as:

            Each employee covered shall receive longevity pay . . . at the 4 year anniversary date of hire.  Said employee shall get an additional 5 % longevity pay raise (expressed in 4 year increments) . . .. (Emphasis added).

            It is difficult to understand why Commissioner Wright would have discussed a new longevity pay article, negotiated longevity pay and then entered into an addendum specifically having to do with longevity pay if he thought that longevity pay were already covered in the CBA’s Salary schedule.  The term “longevity pay is not merely surplusage in the language of the CBA’s addendum.  One guideline for contact construction is that no words should rejected as surplus age if any reasonable meaning can be found since they are considered to have been chosen intentionally to express a certain meaning.  I believe that the reasonable meaning of the words as used in the addendum is that “longevity pay” was to be added to the compensation package consisting thereafter of salary, cost of living increases, and plus longevity pay.  The purpose of the amendment, it seems to me, was specifically to create another component (longevity pay) to the overall Salary Schedule. 

            In contract interpretation, I must look at intent as of the date the parties entered into the agreement not as the Commissioners may now tend to view what their intent should have been on the signing date.  The addendum agreement was entered into on October 5, 1998 to be effective the same day.  Several other factors influence my belief.

            The first is the title of the Article (Longevity Pay) itself.  It is a stretch to construe longevity to mean salary even if the salary schedule steps are the same percentage (5%) and even if a person’s placement on the step salary schedule was determined by his or her hire date.  If the Commissioner or Commissioners had any disagreement about the meaning of “longevity pay” as compared to “salary step” the title of the Article (Longevity Pay) should have alerted them to ask more questions before signing.  The Motion to accept was announced publicly in the presence of some of the members of the Clerical Workers Association.  The October 5, 1992 meeting resulted in the language that “ . . . board agrees with longevity being clarified as part of the step raises.”  ”Part of,” as used by the Commissioners, could also mean a part of the whole of a compensation package including salary steps and longevity step raises.    After all, the addendum signed by the Commissioners says in its second full paragraph, “After the first longevity pay raise, each succeeding longevity step . . .  .  “ (Emphasis added).

            Second, the addendum the Commissioners signed reads above their signatures, “This shall be an addendum and part of Article 11 - Salaries.”  The plain meaning of “part” is a piece or portion of a whole.  “Addendum” denotes addition.  It seems to me to be asking too much to force ”longevity pay” and “salary” to be considered equivalent terms in order to conclude that not more than one 5% pay differential pay component was created by having both salary and longevity pay made component parts of the CBA.  Longevity pay is not a salary.  Salary is the Employee’s base pay free from any extra benefits over and above the base pay.

            Third, it cannot be denied that “salary” and “longevity pay” has different and separate meanings in computing compensation.  The Nevada Administrative Code (NAC) relating to the Nevada State Personnel Act at 284.278 and 282 shows arithmetic calculations for longevity pay.  The calculations comport with custom and usage in employment and personnel practice in treating longevity pay as a separate component of a compensation package.

            Last, the Clerical Workers Association already had 5% salary steps in its July 1, 1992 CBA when it approached the commission for another 5% compensation element, longevity pay.  The County’s version would have the effect of requiring the clerical workers to bargaining uselessly for what they already had in order to end up with the same 5% increment.  I cannot ignore the difference in meaning between longevity pay and salary as used in the fields of labor and employment law.

AWARD

             I find that Lincoln County violated the agreement.

            My holding surely does not mean that Lincoln County deliberately failed to live up to its version of the effect of the longevity pay addendum.  Both parties had opposite views.  Only one view can prevail.  Counsel for the County steadfastly and effectively argued the County’s position.

REMEDY

            The parties through their counsel have stipulated as follows:

[i]f the arbitrators’ award grants the Association’s grievance and awards any backpay retroactive prior to the effective date of the award, that the arbitrator will reserve jurisdiction as to the amount of any back pay award in the event the parties are not able to agree on a figure within 30 days of receipt of the award. (emphasis added).

            The county stipulated that it has paid 5% but not 10% to employees eligible for a salary step (5%) and a longevity pay (5%) increase.  Both parties stipulated that consumer price index raises had been included in employees pay.

            The sum of retroactive pay, if awarded completely, is approximately $90,000 as the parties agreed.  In fashioning a remedy, If I were left to make the determination with no input from counsel’s separate work as contemplated in the stipulation, I would consider that no dispute about longevity pay occurred until late 1996, a time when at least one of the aggrieved employees first believed she was then eligible for longevity pay and noticed that she did not get longevity pay in her pay check.  To borrow a phrase from equity law, the aggrieved employees slept on their rights.  I am aware that a lump sum award of approximately $90,000 would present an unusual burden on Lincoln County and urge a compromise. 

            I retain jurisdiction as to a precise dollar award for a period of 30 days plus 3 days to allows for postage and receipt of the award.  In that period, I look forward to the joint input of counsel.

            DATED this 21st day of July 1998

                                                                                    ____________________________

                                                                                    David K. Robinson, J.D.
                                                                                    AAA Arbitrator

CERTIFICATE OF SERVICE BY MAIL

            I certify that I mailed signed copies of this award by first class mail, USPS, postage paid on the 21st day of July 1998 to counsel and AAA at the addresses shown below.

                                                                                    ____________________________

                                                                                    David K. Robinson

Charles P. Cockerill, J.D.
Bischof, Hungerfore, & Cockerill
415 West 2nd Street
Carson City, NV 89703.

Rusty D. Jardine, J.D.  and Gary D. Fairman , J.D.
Gary D. Fairman, P.C.
482  Fifth Street, PO Box 5
Ely, Nevada 89301

American Arbitration Association
ATTN Maya Florez, Case Administrator
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[1]           Ms. Stever was the President of the Clerical Workers Association at the time of the longevity addendum negotiation and currently serves as Secretary.

[2]           Also see Elkouri & Elkouri, HOW ARBITRATION WORKS, 598 (5th Ed).   If the writing is clear and unambiguous, parol evidence will  not be allowed to vary the contract. 

[3]               Generally, see 17A  Am Jur2d Contracts §§336-414.

[4]               But here the drafting was mutually done by the parties.

[5]               Inasmuch as the Salaries Article in the CBA and the Longevity Pay Article in the addendum are both entitled “Article 11 ,“  I will designate them as Article 11 (Salaries) or Article 11 (Longevity Pay when specifically referring only to  the Salaries or only to the Longevity Pay articles.

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