Title: Calmat Co and International Union
of Operating Engineers Local 3
IN THE MATTER OF THE GRIEVANCE
CALMAT CO., )
Employer, ) OPINION
and ) AND
INTERNATIONAL UNION OF OPERATING )
ENGINEERS, LOCAL No. 3, )
FMCS No. 981231-03416-2
JACK H. CALHOUN
January 28, 1999
FOR THE EMPLOYER FOR THE UNION:
James A. Zapp Antonio Ruiz
Paul, Hastings, Janofsky & Walker, LLP Van Bourg, Weinberg, Roger & Rosenfeld,PC
555 South Flower Street 180 Grand Avenue, Suite 1400
Los Angeles, CA 90071-2371 Oakland, CA 94612
CalMat Company (the "Employer" or the "Company") and the International Union of Operating Engineers, Local No. 3 (the "Union") are parties to a collective bargaining relationship that involves, in this case, employees at two different plants, Friant and Sanger, who are in two separate bargaining units. On August 28, 1997, the employees at both plants went on strike for one day. When they showed up for work the following day, the company refused to allow them to work. August 29, 1997, was the Friday before Labor Day. The Company allowed the employees to return to work on Tuesday, September 2, 1997, but did not pay them for August 29 or Labor Day. The Union filed a grievance alleging a contract violation and the matter ended in arbitration.
The parties were unable to agree to the exact wording of the issues and left it to the arbitrator to frame the issues. Based on the record, including counsels' briefs, I have determined that the following issues are to be decided.
1. Whether the grievance filed on behalf of the Friant plant employees is arbitrable
2. Whether the Company violated the collective bargaining agreement or implemented collective bargaining proposal when it did not allow bargaining unit employees at the two plants to work on August 29, 1997, if so, what is the remedy?
3. Whether the Company violated the collective bargaining agreement or the implemented collective bargaining proposal by not paying holiday pay to bargaining unit employees at the two plants for Labor Day 1997, if so, what is the remedy?
RELEVANT CONTRACT PROVISIONS
The following provision of the parties' collective bargaining agreement at the Sanger plant or the implemented employer proposal at the Friant plant are relevant to the issues in dispute.
03.00.00 EMPLOYMENT QUALIFICATIONS AND DISCHARGE
03.01.00 The employer shall be the judge of the qualification of its employees and may on such grounds discharge any of them. No employee shall be discharged without just cause. No employee shall be discharged or discriminated against for activity in or representation of the Union . . .
06.00.00 WORKING RULES
. . .
06.02.00 Workday. Not less than eight (8) hours at the applicable rate shall be paid for any work performed on any one shift. . .
08.01.00 The following holidays, when not worked, shall be paid for at eight (8) times the employee’s straight time hourly rate: . . . Labor Day (first Monday in September) . . .
08.02.00 The above holidays shall be paid if the employee:
. . .
08.02.02 Worked or reported to work, on his regularly scheduled workdays immediately preceding and following the holiday, unless an absence is due to the express permission of his employer . . .
17.00.00 GRIEVANCE PROCEDURE (Sanger)
17.01.00 In the event a dispute arises, a Board of Adjustment shall be created for the settlement of such disputes. It shall be composed of two (2) representatives selected by the Union and two (2) representatives selected by the Employer. The Board shall organize at once and elect a Chairman and Secretary and shall adopt rules of procedure which shall bind the contracting parties. The Board shall have power to adjust any differences that may arise regarding the meaning or enforcement of this Agreement. Within three (3) workdays of the time any dispute is referred to it by either party, the Board shall meet to consider such dispute. If the Board, within three (3) workdays after such meeting cannot agree on any matter referred to it, the members thereof within five (5) workdays shall choose a fifth (5th) member who shall have no business or financial connection with either party. In the event the parties are unable mutually to agree upon a fifth (5th) member within the five (5) working day period, the Federal Mediation and Conciliation Service or the California State Mediation and Conciliation Service shall be requested by either party to submit a list of five (5) arbitrators from which the fifth (5) member shall be chosen by each party striking two (2) names from the list, each party striking alternately, the first party to strike to be determined by lot. The arbitrator whose name then remains shall become the fifth (5th) member. The matter shall then proceed to arbitration before the Board as so composed with all due expedition. The decision of the Board shall be within the scope of and shall not vary the terms of this Agreement, shall be determined by a majority of its members, and shall be rendered within five (5) workdays after such submission. The decision shall be final and binding on both parties. Pending such decision, work shall be continued in accordance with the provisions of this Agreement. The expense of employing the fifth (5th) person shall be borne equally by both parties.
. . .
17.04.00 There shall be no strikes, lockouts or any cessation of work by either party on account of any labor dispute. The Employer hereby declares its opposition to lockouts and the Union hereby declares its opposition to strikes, sympathetic or otherwise, and stoppage of work.
17.00.00 GRIEVANCE PROCEDURE (Friant)
17.01.00 In the event a dispute arises that cannot be settled between the parties to the dispute, a Board of Adjustment shall be created for the settlement of such disputes. It shall be composed of two (2) representatives selected by the Union and/or unions involved and two (2) representatives selected by the Employer. Said Board shall organize at once and elect a Chairman and Secretary and shall adopt rules of procedure which shall bind the contracting parties. Said Board shall have power to adjust any differences that may arise regarding the meaning or enforcement of this Agreement. Within twenty (20) working days of the time any dispute is referred to it by either party, said Board shall meet to consider such dispute. If the Board, within twenty (20) working says after such meeting cannot agree on any matter referred to it, the members thereof within five (5) working days shall choose a fifth (5th) member, who shall have no business or financial connection with either party. In the event the parties are unable mutually to agree upon said fifth (5th) member within said five (5) working-day period, the Federal Mediation and Conciliation Service (except by mutual agreement between the Union and the Employer, the California State Conciliation Service may be used) shall be requested by either party to submit a list of five (5) arbitrators from which said fifth (5th) member shall be chosen by each party striking two (2) names from said list, each party striking alternately, the first party to strike to be determined by lot. The arbitrator whose name then remains shall become the said fifth (5th) member. The matter shall then proceed to arbitration before the Board as so composed with all due expedition. The decision of said Board shall be within the scope of and shall not vary from the express written terms of this Agreement. The decision shall be determined by a majority of the Board's members. Any decision shall be based solely upon the interpretation of the meaning or application of the express written terms of this Agreement to the facts of the grievance as presented. In interpreting the express written terms of this Agreement, the parties may utilize past arbitration awards, bargaining history, prior grievances and their resolutions, and past practices. Said decision shall be final and binding on both parties. Pending such decision, work shall be continued in accordance with the express written provisions of this Agreement. The expense of employing said fifth (5th) person shall borne equally by both parties. Any extension of the twenty (20) day time limit provided in this Section shall be by mutual agreement between the Employer and the Union.
. . .
18.00.00 EQUAL EMPLOYMENT OPPORTUNITIES
18.01.00 No employee or applicant for employment covered by this Agreement shall be discriminated against because of membership in a union of activities on behalf of the union, and the union agrees that employees covered hereby shall be admitted to membership without discrimination. . .
The Company operates two rock and sand plants in the Fresno area. One is the Friant plant, the other is the Sanger plant. The Union has represented employees at each of the plants, in separate bargaining units and under separate contracts with the Company, for many years.
The collective bargaining agreement covering employees a the Friant plant expired in September of 1994. The parties negotiated until December 6, 1994, at which time the Company implemented its last, best and final offer. By letter dated November 29, 1994, the Company advised the Union that, since the parties were at an impasse, the Company intended to implement all aspects of its last offer except the Union security provision and any other provisions that required a signed contract.
Employees at the Friant plant continued to work and the parties continued to negotiate a successor agreement. As of August 28, 1997, no collective bargaining agreement was signed.
At the Sanger plant, the agreement was to expire August 20, 1996. The parties entered into an extension agreement on August 8, 1997. The agreement was in full force and effect at all times pertinent here.
On August 22, 1997, the Union notified the Company that employees at the Sanger and Friant plants had authorized a strike. The Company's negotiators and the Union's negotiators had a negotiating meeting scheduled in Fresno on August 28 for another collective bargaining agreement covering asphalt plant employees.
On August 28, employees at the Friant and Sanger plants went on strike. Officials of the Company saw the first pickets at about 3:30 a.m. that day. At approximately 8:30 a.m., the treasurer for the Union, Max Spurgeon, faxed from Fresno a letter to the Company's labor relations manager, Jeffery Dyer, in Los Angeles, informing Dyer the strike would be for one day and the employees would return to work the next day. Despite the fact the Union had faxed letters to Dyer before, using his correct number, on this occasion the fax was sent to another number in another part of the Company's office that had nothing to do with labor relations.
From approximately 10:30 a.m. on August 28 until 2:30 p.m., Dyer and Don Bruzzi met with Max Spurgeon and other Union representatives to negotiate the asphalt contract.
During the August 28, meeting, Dyer talked about the strike at the Friant and Sanger plants and said the Company was preparing for a long strike. None of the Union representatives said anything to the contrary. None of them made any reference to the letter the Union had faxed to the wrong number for Dyer earlier that day, or to the fact that the strike was meant to last for one day.
Dyer first came to know about the letter from the Union at 3:30 p.m. on August 28. He discussed the situation with the district manager, Russ Austin. Austin had been busy all day preparing for a lengthy strike. He had contracted temporary replacements for the striking employees and made arrangement for them to stay in local hotels. He made arrangements for the services of various subcontractors and canceled the services of a hauling subcontractor. The Company made significant financial commitments in preparation for what was thought to be a long strike. Austin and Dyer decided they could not change their strike operations plan on such short notice.
Dyer wrote a letter and faxed it to the Union. In the letter, he explained that he had not received the Union's letter until 3:30 p.m. and had not otherwise been informed by the Union that the strike was to be for one day only. He explained that the Company had gone to considerable expense and made significant commitments in preparation for a long strike and was not willing to bring the striking employees back to work the following day, August 29, but would permit them to return on September 2, after Labor Day.
When negotiations began between the parties over successor contracts, the Company’s first proposal consisted of 38 non-economic items, 35 of which were take-aways. The Company stuck to its non-economic proposals and six months later made economic proposals that the Union believed were regressive. The Union then requested information from the Company to justify the Company’s need for the proposals, the Company said the information was irrelevant.
The August 27 strike was called to protest what the Union considered to be lack of good faith bargaining by the Company. The strike was meant to be a one-day unfair labor practice strike and an unconditional offer to return to work the following day. When the employees showed up for work ready, willing and able to work their shifts, the Company refused to allow them to work. The Company did not pay the striking employees for August 29 or the Labor Day holiday.
The Union filed unfair labor practice charges against the Company with the regional office of the National Labor Relations Board. The regional office investigated and rejected each charge as lacking merit.
In one of the charges, the Union alleged the Company had violated Section 8(a)(3) of the National Labor Relations Act by unlawfully discriminating against the Friant plant strikers because of their union activities by not returning them to work on August 29 and not paying them for the Labor Day holiday. The NLRB concluded, after its investigation, there was no merit to the Section 8(a)(3) allegations, there had been no unlawful discrimination by the Company. The NLRB found the Company's delay in returning the employees to work was not unreasonable since the Company had brought replacements in from outside the area and it needed time to return them to their regular jobs. There was no evidence the company retaliated against the strikers.
In another charge, the Union alleged the Company unlawfully discriminated against the Sanger strikers by disciplining them for participating in an unfair labor practice strike in violation of Section 8(a)(3) of the NLRA. The Union also alleged the Company had refused to provide information and had not bargained in good faith with respect to the Sanger plant and the asphalt plant negotiations in violation of Section 8(a)(5) of the NLRA. As to the Sanger negotiations, the NLRB concluded there was no basis for finding the Company failed to bargain in good faith or that it failed to provide the Union with relevant requested information during the course of bargaining. Since the Company had not committed any unfair labor practice, the NLRB concluded the Company had the right to discipline the Sanger employees for striking in violation of the no strike clause.
In another charge, the Union alleged the Company violated Sections 8(a)(3) and 8(a)(5) of the NLRA by failing to pay the employees for September 1. With respect to the unlawful discrimination portion of the charge, the NLRB concluded there was no merit to the charge that the Company's failure to pay the employees for Labor Day violated Section 8(a)(1) and (3) of the NLRA because there was no evidence that the decision not to pay for the holiday was based on their participating in the strike. The Company's decision was based on the fact the employees did not work or effectively report to work the day before Labor Day and their not working that day was based on the fact the Company brought temporary replacement from its other operations outside the area and was unable to bring the striking employees back to work as soon as they wanted to return. The NLRB found no merit to the contention the Company had unilaterally changed terms and conditions of employment so as not to pay the employees. The NLRB found the Union presented no evidence that the parties ever intended or applied the holiday provision to encompass a situation involving a strike and employees "reporting to work" but legitimately not being allowed to work because the Company had brought in temporary replacements to do their work. In the absence of such evidence, the NLRB found the Company's position that the employees were not entitled to holiday pay in such a situation not to be implausible or unreasonable, or that its conduct constituted any sort of unilateral change.
POSITIONS OF THE PARTIES
The Union contends that the strike was an unfair labor practice strike in protest to the Company's bargaining tactics. The strike was not prohibited by the no-strike provision in the collective bargaining agreement and was protected union activity. Since it was protected activity, the Company did not have the right to lock the employees out as discipline on August 29 when they reported to work.
The Union maintains the employees met the requirements for holiday pay, which are that the employees report to work the day before and after a holiday. On the day in question, each employee arrived at the job site ready, willing and able to work.
The Company must arbitrate the disputes at the Friant plant, the Union argues. Well-established labor policy favors resolution of disputes on the merits. Courts have repeatedly held that disputes must be arbitrated under an implied collective bargaining agreement when the employer unilaterally implements terms and conditions of employment after making a last and final offer that includes a grievance and arbitration mechanism.
The Company did not explicitly exclude the arbitration provision from its last and final offer. Moreover, numerous federal cases have held that the grievance and arbitration clause does not require a signed agreement in order to bind the parties. While the Company maintains the document submitted to the Union was not written to set forth the terms and conditions of the Company’s last and final offer, the Company has failed to produce any evidence that it presented any other document as its last and final offer. The parties operated under the terms of the document for several years before the August 1997 incidents took place. Under such circumstances the arbitrator must conclude that an implied in fact collective bargaining agreement existed and the grievance and arbitration provisions require a disposition on the merits.
An implied in fact agreement occurs when an employer makes a last and final offer which is unilaterally accepted and worked under. Such an offer has been deemed to constitute an offer for an interim agreement. Such an offer is accepted when a union agrees to allow its members to work under such an arrangement.
A general no-strike clause does not waive an employee’s right to strike in response to an employer’s unfair labor practices. In determining whether a party engaged in bad faith bargaining, the critical inquiry is whether its conduct evinces and unlawful “take it or leave it” attitude. The Company here had that attitude.
The Company’s initial bargaining proposal contained 38 items, 35 of which were take-aways. It proposed an extemely broad management rights clause, eliminating the just cause provision, eliminating hiring hall provision, giving it unfettered discretion in layoffs and recall, and a broad zipper clause. Over six months the parties focused on the Company’s proposals. When the Company made its economic proposal, it included a wage freeze, less show-up pay, fewer holidays, reduced sick leave accumulation, limiting leaves of absences to the bare minimum, deletion of retirees’ health and wealth benefits, and withdrawal of participation in trust and pension plans. When the Union sent the Company a request for information as to why the Company needed such drastic concessions, the Company said the request sought irrelevant information.
The Company’s conduct amounted to surface bargaining — unyielding rigidity that rendered bargaining futile. The Company made proposals like the regressive proposals the NLRB has held to be surface bargaining. The Company committed an unfair labor practice by refusing the Union’s request for information. The August 28 strike was an unfair labor practice strike motivated by the Company’s illegal bargaining tactics and it was not prohibited by the no-strike clause in the agreement.
The Company violated the agreement by not honoring the employees unconditional offer to return to work on August 29. While it would have been ideal if the letter had been faxed to the right number, the Company cannot use the fact it was not to escape its responsibility. Once Dyer had the letter he did nothing to attempt to accommodate the employees’ return to work. Yet he made every effort to make sure the plant was run effectively during the strike.
The employees satisfied the contractual criteria for holiday pay on Labor Day because they “reported for work” on August 29. Contractual terms must be given their normal and everyday meaning unless there is evidence a specialized meaning was intended. Effect must be given to clear and unambiguous language in an agreement. The normal use of the phrase “reported for work” supports the Union’s position. The parties stipulated the employees showed up at the plant before their shifts began ready, willing and able to work.
The exception to the work requirement for holiday pay provides that an employee is entitled to holiday pay when “an absence is due to the express permission of the Company.” On August 29, the employees were absent because the Company decided to discipline them. Consequently, the Company permitted them to be absent. The employees had a legitimate reason for not working on August 29.
The arbitrator must address the merits of the dispute and not rely on the NLRB’s decision not to issue a complaint. It is well-established that such effect cannot be given to those decisions.
The Company contends that the grievance filed on behalf of the Friant plant employees is not arbitrable. The terms and conditions applicable to those employees were the portions of the last and final offer implemented by the Company in December of 1994. The Company did not implement the Union security provision or any other provision that depended upon a signed contract. The arbitration provision was one of those provisions.
Each of the issues in these proceedings was submitted by the Union to the regional office of the NLRB, was investigated and found to lack merit. The Union filed a series of unfair labor practice charges that required the regional office of the NLRB to rule upon the same issues that the Union raises in these grievances. The NLRB rejected each and every allegation for lack of merit and that serves to bar those grievances, or at a minimum, should constitute compelling and persuasive precedents that should be followed here. All charges brought by the Union before the NLRB have been fully and finally determined in favor of the Company. The Company did not commit any unfair labor practice.
The Company maintains it lawfully disciplined the Sanger plant strikers because they violated the no-strike provision of the extended agreement. The NLRB did not find that the Company engaged in any unfair labor practice; therefore, the unfair labor practice exception to the no-strike provision is not applicable. Accordingly, as the NLRB found, the employees had engaged in unprotected conduct and were subject to disciplinary action.
The Company did not violate the agreement when it did not permit the striking employees to return to work on August 29 or pay them for that day. By electing to strike, the employees voluntarily removed themselves from the work schedule. By the time the Company learned that the strike was meant to be for one day only, the Company had made other operational and scheduling arrangements for that day. The employees who were on strike were not scheduled to work on August 29; therefore, they were not entitled to any pay. An employer must be provided a reasonable period of time to accomplish the tasks necessary to the orderly reinstatement of strikers and the orderly release of replacement employees.
The Company contends it did not violate the agreement when it did not pay the striking employees holiday pay. The agreement requires that to be paid for a holiday an employee must have worked or reported to work on his regularly scheduled workdays immediately preceding and following the holiday. Here, the striking employees did not work on their last regularly scheduled working day preceding the holiday. They were on strike August 28. Due to the Union’s failure to give the Company timely notice of their desire to return to work on August 29, the Company necessarily scheduled others to work on August 29. The Union has not shown the Company acted in bad faith in making other scheduling arrangements for August 29. The Union’s conduct in failing to timely notify the Company of the intended duration of the strike prevented the employees from being scheduled to work and actually working on August 29.
The issues raised by the Union in filing these grievances were contract interpretation questions and the Union had the burden to prove, by a preponderance of the evidence, that its interpretation is the correct one. The Company raised arbitrability as a defense to the issues concerning the striking employees at its Friant plant; therefore, it had the burden to show that the issues regarding those employees are not arbitrable. Hill and Sinicropi, Evidence in Arbitration, BNA 1987, Chpt. 5.
The Company raised the arbitrability issue because there was no collective bargaining agreement in effect at the Friant plant during the time period pertinent here, August 28, 1997 through September 1, 1997. The previous agreement had long since expired and no new agreement had been reached. The Company implemented its last and best offering December of 1994. The parties were operating under an implemented proposal. The question is how much of the Company’s last and best offer did it implement.
The Company did not explicitly exclude the arbitration provisions from its last and best offer. It specifically excluded the Union security provision, but then stated “and any other provision which required a signed Labor Agreement.” The Union did not understand that the Company meant to exclude from its implemented offer the arbitration clause. The language of the Company’s letter notifying the Union of the Company’s intent to implement the Company’s last offer is not sufficiently explicit to definitely conclude that arbitration would not be included in the implementation offer.
The parties operated for a number of years under the implemented offer, which it may reasonably be concluded, included the grievance and arbitration provision contained in the Company’s last and best offer. Doubts concerning arbitrability should be resolved in the affirmative. Elkouri and Elkouri, How Arbitration Works, 5th Ed., BNA 1997, P. 308. Under the circumstances, this case requires a disposition on the merits. The issues as they relate to the Friant plant are arbitrable.
The issues of whether the Company violated the extended collective bargaining agreement in effect at the Sanger plant or the implemented offer in effect at the Friant plant when it did not allow the striking employees to work on August 29 or did not pay them for the Labor Day holiday were the focus of the parties’ arbitration dispute. It is well settled that the arbitrator is to determine the intent of the parties when interpreting their collective bargaining agreement, Phelps Dodge Copper Prod. Corp., 16 LA 229 (Justin 1951).
The weight an arbitrator is willing to give to decisions made by an administrative agency based on an investigator’s report and not upon a hearing of an adversarial character is less than would be given if the decision had been based upon a contested case hearing where the issues were fully litigated. See generally, Labor and Employment Arbitration, Bornestien, Gosline and Greenbaum, gen. ed., Vol. 1 §9.06, 1998. That is not to say no weight should be given to the rulings of the regional office of the NLRB on the issues that were the same as the issues raised in the grievances presented here.
Contrary to the Union’s argument, the strike was not an unfair labor practice strike; therefore, the no-strike clause in the agreement was applicable and, as the NLRB regional office found, the employees engaged in unprotected activity and subjected themselves to discipline. The Company did not comment an unfair labor practice in bargaining with the Union nor did it illegally refuse to furnish relevant information. The Company did not engage in surface bargaining. The Company made movement during negotiations and it was not shown it was out to break the Union, it was motivated by legitimate competitive marketing considerations.
The Company did not violate the agreement by refusing to allow the employees to work on August 29, the day after the strike. The Union failed to fulfill its obligation to provide the Company with an effective and timely notice of the employees’ desire to return to work on the 29th. Because of the ineffective and untimely notice, the Company proceeded to make necessary operational and scheduling arrangements for the 29th. The striking employees were not scheduled to work on the 29th. By electing to strike, they voluntarily removed themselves from the work schedules. Others had been scheduled to perform the available work.
By the time the Company’s labor relations director received notice that the striking employees wanted to return to work on August 29, the Company had made essential commitments that could not be reversed on such short notice. No explanation was given as to why the Union did not inform Dyer early on during negotiations on the 28th that the strike would be for one day and the employees would work the following day.
The striking employees’ last regularly scheduled workday was August 28, the day of the strike. They were not scheduled to work on August 29 because the Company had scheduled others to do all available work. The agreement requires employees to work or report to work on their regularly scheduled workday immediately preceding the holiday. The strikers last regularly scheduled work day was August 28. That they showed up ready , willing and able to work on the 29th is of no consequence. Others had been scheduled to do the work by then. The Company was not shown to have acted in bad faith in delaying the reinstatement of the strikers. It had made other scheduling arrangements for August 29 that could not have reasonably been changed given the short notice it received. Since the striking employees did not work or report to work on their last regularly scheduled work day, August 28, they were not entitled to holiday pay under the terms of the agreement. August 29 was not their regularly scheduled work day.
There was no express permission of the Company for the employees to be absent on their last regularly scheduled workday August 28. The Company did not permit the employees to strike, they struck of their own volition. As the Union argues, the employees reported to work on the 29th, they were not malingering; however, they were not scheduled to work because the Company was given insufficient notice of their intent to work on the 29th.
For the reasons stated above, I conclude that the Friant plant grievance is arbitrable, the Company did not violate the collective barraging agreement or the implemented collective bargaining proposal when it did not allow employees at the two plants to work on August 29, nor did the Company violate the agreement or implement proposal by not paying holiday pay to those employees. Accordingly, I will enter an award reflecting my conclusions.
The grievances are denied.
Dated this ____ day of May 1999.
Jack H. Calhoun