of Ketchikan Pulic Utilities and
IBEW Local Union 1547
THE MATTER OF THE GRIEVANCE
) MOTION TO DISMISS
OF KETCHIKAN d/b/a
FOR THE EMPLOYER:
K. “Jake” Metcalfe
Steven H. Schweppe
City of Ketchikan
334 Front Street
Ketchikan, AK 99901
International Brotherhood of Electrical Workers, Local 1547 (hereinafter the
“Union”) and the City of Ketchikan (hereinafter the “Employer” or the
“City”) are parties to a collective bargaining agreement that provides,
among other things, that the Employer will be the sole judge, not subject to
the grievance procedure, of the removal of foremen.
The position of foreman is a supervisory position within the bargaining
November 1999, the Employer removed Mike Carlile from a foreman position and
transferred him to another position. The
Union grieved the removal and demanded Carlile be reinstated to the foreman
position. The Employer denied the
grievance contending it did not violate the collective bargaining agreement
when it removed Carlile from the foreman position.
Employer filed a Motion to Dismiss with the arbitrator arguing the grievance
is not arbitrable. The Union filed its Opposition to the Motion to Dismiss
arguing the matter is arbitrable.
parties’ collective bargaining agreement requires the arbitrator to hear and
decide disputes over procedure in a separate proceeding prior to hearing the
merits of the case. Dismissal by
the arbitrator bars further arbitration on the issue.
The parties filed briefs in support of their positions.
RELEVANT PROVISIONS OF THE AGREEMENT
The Union recognizes the right of the Employer to operate and manage the
Utilities, including but not limited to the right to establish and require
standards of performance; to maintain order and efficiency; to direct
employees; to determine job assignments and work schedules; to determine the
materials and equipment to be used; to implement new and different operational
methods and procedures; to determine staffing levels and requirements; to
determine the kinds, type and location of facilities; to introduce new or
different services, products, methods, or facilities; to extend, limit,
contract out, or curtail the whole or any part of the operation; to select,
hire, classify, assign, promote, transfer, discipline, demote, or discharge
employees for just cause; to lay off and recall employees; to require overtime
work of employees; and to promulgate and enforce rules, regulations, and
personnel policies and procedures; provided that such rights, which are vested
solely and exclusively in the Employer, shall not be exercised by ordinance or
otherwise so as to violate any of the specific provisions of this Agreement.
The parties recognize that the above statement of management rights is
for illustrative purposes only and should not be construed as restrictive or
interpreted so as to exclude management
prerogatives not mentioned. All
matters not covered by this language in the Agreement may be administered by
the Employer on a unilateral basis in accordance with such policies and
procedures as it, from time to time, shall determine.
Any claim that the employer has exercised such rights and power
contrary to the provision of the Agreement may be submitted to the grievance
procedure contained herein. This
section shall not conflict with the union security provisions contained
Foreman: A Foreman is a bargaining unit member and is a journeyman in his
classification who supervises other Employees as assigned.
He may work with tools, provided it does not interfere with the
supervision of safety. Although
covered by this Agreement, foremen and chief powerhouse operators shall be
considered supervisory with full supervisory authority and responsibility as
directed by the Employer, and the Employer shall be the sole judge, said
exercises of such judgment not subject to the grievance procedure herein, of
their qualification, selection, performance, and removal.
Instructions will normally and usually be given by an Employee’s
PROBATION AND TERMINATION
No regular employee shall be disciplined or discharged without just cause.
The existence of cause for disciplinary action, if disputed, shall be
subject to the grievance procedure contained herein.
When appropriate, the Employer will follow the principle of progressive
discipline. Except in cases of gross misconduct, an Employee shall
receive at least one (1) written warning prior to
discharge. Both the Union
and the Employee shall receive copies of the warnings and the reasons for
discharge. Warnings shall not be
subject to arbitration. Upon
request by the Employee and review by the Personnel Office, written warnings
of a minor nature shall be removed from the Personnel files after two (2)
years, provided that there are not other warnings in the files.
SCHEDULE AND OVERTIME
Anytime an Employee’s work day schedule, including days off, is changed with
less than one (1) week’s notice, the Employee shall be compensated at the
overtime rate for the days which would have been considered the days off.
The foregoing shall not apply to shift changes such as change from day
shift to swing shift. The work
week schedule of Shift Employees shall not exceed five (5) days on, with two
(2) days off in seven (7). All
Shift Employees shall have at least eight (8) hours of break between shifts.
Any employee not having an eight (8) hour break between shifts shall be
paid the overtime rate for those hours falling during the eight (8) hour
relief period. Travel time shall
not be considered work time for purposes of this section.
This rule shall not apply to Employees in the job classifications of
Custodian and Utilities Inspector.
7.11: Employees assigned to Swan Lake Special Projects:
Definition of special project: A project that requires personnel other
than, or in addition to, the Swan Lake attendants with work taking place at or
in the vicinity of Swan Lake, inclusive of the 115-KV transmission line.
Employees considered for assignment for Swan Lake special projects
shall be given at least one (1) week prior notice, if possible.
The personal obligations and commitments of Employees shall be given
full consideration prior to an assignment to Swan Lake.
If possible, assignments shall be made on a voluntary basis.
21.1: A grievance is an alleged breach of this Agreement raised during
The Arbitrator’s function is to interpret the Agreement.
The Arbitrator shall consider only the particular issue presented in
writing by the Employer and the Union. The
Arbitrator shall have no authority or power to add to, delete from, disregard,
or alter any of the provisions of this Agreement, but shall be authorized only
to interpret the existing provisions of the Agreement as they may apply to the
specific facts of the issue in dispute. The
arbitrator shall not decide on the merit or wisdom of any action or failure to
act, but only on the contractual obligation inherent in this Agreement.
If the Arbitrator shall find that the Employer was not prohibited by
this Agreement from taking, or not taking, the action grieved, he or she shall
have no authority to change or restrict the Employer’s action or inaction or
to substitute his or her own judgment for that of the Employer.
Unless a specific provision of this Agreement expressly grants the
Union or employees a right, privilege, or benefit claimed by it or them, the
Arbitrator shall not award any such right, privilege, or benefit to the Union
Any dispute as to procedure shall be heard and decided by the Arbitrator in a
separate proceeding prior to any hearing on the merits.
Any dismissal of a grievance by the Arbitrator, whether on the merits
or on procedural grounds, shall bar any further arbitration.
Each party shall bear one-half (1/2) of the fee of the Arbitrator and
any other expense jointly incurred by mutual agreement incidental to the
arbitration hearing. All other expenses shall be borne by the party incurring
them, and neither party shall be responsible for the expense of witnesses
called by the other party, except that witnesses who are Employees of the
Employer shall be paid by the Employer for normal working time spent
testifying at the hearing.
The Employer and the Union agree that there shall be no unlawful
discrimination against any Employee or applicant for employment because of
race, color, religion, age, sex or national origin, except as permitted by law
and unless one of the foregoing factors constitutes a bona fide occupational
qualification; provided, however, that a claim that this provision has been
violated shall not be subject to Step III of the grievance procedure of this
Agreement if the grievant has also filed a charge or claim with an
administrative agency or court of law, and provided further, that any claim,
complaint or charge that this provision has been breached or violated shall be
deemed waived and unenforceable and the Employer and Union thereby released
from any liability if not filed with the appropriate administrative agency
and/or court of law within one hundred eighty (180) days of the alleged act of
parties agreed that the question of arbitrability was raised when the Employer
made its motion to dismiss the grievance filed by the Union over the
Employer’s removal of Mike Carlile from a foreman position.
The parties also agreed that a pay issue remains to be resolved if the
arbitrability issue is decided in the Employer’s favor.
SUMMARY OF THE EMPLOYER’S POSITION
Employer contends that Section 3.5 of the collective bargaining agreement
governs the hiring and removal of foremen.
Management is the sole judge and that judgment is not subject to the
grievance procedure. First, the Section states that management shall be the sole
judge of, among other things, removal of foremen.
Second, it prohibits grievances over the Employer’s removal of
order for the term “sole judge” to have any meaning, it must be
interpreted as excluding the possibility of arbitration.
Management cannot be the “sole judge” if its decision is subject to
parties to the agreement intended, by their language in other provisions
therein, to limit management’s rights.
In Section 3.5, however, they agreed not only to eliminate such
limitations, but to explicitly grant management the authority to act as the
“sole judge” over foremen. This is evidence the parties intended to make management’s
decision final and non-appealable. Moreover,
the parties went further and clarified management’s authority beyond
question. They agreed that
management’s exercise of its authority as sole judge would not be subject to
the grievance procedure.
3.5 states that the grievance procedure cannot be used to submit the grievance
to final and binding arbitration as that procedure is set forth in Article 21.
The arbitrator cannot have authority to rule on a matter the parties
have specifically agreed cannot be submitted to him.
21.5 incorporates the rule that no provision of the contract may be
disregarded or altered; therefore, the arbitrator cannot disregard Section
3.5's determination that management is the sole judge over the removal of
foremen, nor can the arbitrator substitute his judgment for that of the
Employer. The arbitrator’s role is not to rule on the merits or wisdom of
management’s decision, but to determine the parties’ contractual
contract construction, an interpretation that tends to nullify any part of the
contract is to be avoided because the parties are presumed not to have written
language that they intended to have no effect.
Under Section 3.5 the Union’s obligation is clear.
It agreed that the removal of foremen would not be subject to the
agreed to have foremen in the bargaining unit, but in return it reserved the
right to remove them without interference from the Union.
The power of an arbitrator is limited to that conferred by the
agreement. Since the parties
specifically denied the arbitrator power to arbitrate the removal of foremen,
Carlile’s grievance over his removal is not arbitrable.
Union’s attempt to substitute the general disciplinary language of Section
2.1 for the specific language of Section 3.4, on removal of foremen, is
contrary to basic contract interpretation principles.
Where two contract clauses bear on the same subject, the more specific
should be given preference. The
specific language of Section 3.5 describes the decision in Carlile’s case as
a “removal,” not as a “demotion.”
The parties knew what a demotion was because they used it in general
terms in Section 2.1.
SUMMARY OF UNION’S POSITION
Union contends there is credible evidence the Employer acted maliciously and
with intent to punish Carlile for being a whistle blower.
If that is the case, the Employer violated the covenant of good faith
and fair dealing when it demoted and transferred him.
If the Employer engaged in bad faith conduct, it violated the
collective bargaining agreement. For
those reasons, the grievance should not be dismissed.
Employer-operated hydroelectric plant is located approximately 25 miles from
the City of Ketchikan.
The plant supplies electricity to the city.
Three city employees live and work at the site.
During 1999, Mike Carlile was the foreman at the site.
learned of a fuel spill and reported it to his supervisor, who did little to
investigate the matter. Carlile later discovered contaminated water at the site and
reported it to his supervisor. Carlile
later received a call from the site owner who told Carlile the contamination
would be taken care of immediately. Carlile
reported the water contamination and possible fuel spill to the Alaska
Department of Environmental Conservation (DEC). DEC officials investigated Carlile’s report.
Carlile’s supervisor was present.
discovered more contaminated water in sump pumps at the powerhouse and
reported it to the Coast Guard. When the Coast Guard arrived, Carlile’s
supervisor would not allow Carlile to be interviewed.
on information learned at the site, the Coast Guard investigators recommended
a criminal investigation be conducted. When
Carlile’s supervisor returned to Ketchikan, he called Carlile and said the
site owner wanted Carlile removed as foreman and returned to Ketchikan. Later
Carlile’s supervisor informed him he had received complaints about Carlile
harassing employees. The
employees denied complaining about harassment.
Carlile gave testimony about the spill to Coast Guard investigators.
The Employer ordered him to take leave until the Employer could look
into the harassment complaints.
Employer refused to allow Carlile to return to the site and ordered him to
report to Ketchikan. The Employer found Carlile’s behavior toward fellow
employees at the site to border on harassment and reassigned him permanently
Employer’s power to remove a foreman is not absolute.
It is limited by its obligation under the agreement to treat foremen
fairly. If the employer acts in
bad faith in demoting or transferring a foreman it has violated its duty to
act in good faith, and any claim alleging such a violation is arbitrable. The removal of a foreman must be done in good faith and not
for discrimination, illegal, or retaliatory reasons.
in Alaska must act in good faith and deal fairly with their employees.
Every contract is subject to an implied covenant of good faith and fair
dealing, and that requires the parties to act in a manner that a reasonable
person would regard as fair.
Carlile “blew the whistle” on the spill and contamination, the Employer
reacted maliciously. It tried to muzzle him, accused him of fabricating a story,
and made a veiled threat to him. The
Employer’s behavior toward Carlile also violated public policy.
By statute, a public employer may not threaten or otherwise
discriminate against an employee because the employee reports to a public body
a matter of public concern. A fuel spill and water contamination are matters of public
concern. The Employer
discriminated against Carlile when it removed him from the foreman position.
Under Alaska law, an employer who disciplines an employee in violation
of public policy commits an objective breach of the covenant of good faith and
can legitimately claim that the Employer exercised its right and power to
remove him contrary to the covenant of good faith and fair dealing and his
claim is arbitrable.
allow the Employer to remove a foreman with no ability to challenge the
removal on good faith grounds would open up the ability for the Employer to
treat its employees unfairly. If
the Employer is given immunity from arbitration over the removal of a foreman,
a foreman would never be able to argue that the Employer discriminated against
him and the Employer could ignore Article 24 of the collective bargaining
of this case would force the Employer to demonstrate it complied with the
contract’s provision of good faith. The
contract relies on the good faith of both parties to carry out the agreement.
The Employer should be prepared to present a reasonable basis for
Carlile’s removal. Dismissal of
the case would allow the Employer to misuse Section 3.5 and ignore other
sections of the contract.
issue to be decided is whether the grievance filed over the removal of Carlile
from a foreman position is arbitrable. Any
issue the resolution of which forecloses consideration of the merits of the
dispute is an issue of arbitrability. Where
the arbitrator cannot or should not hear the merits, he has no jurisdiction or
the case is not arbitrable. Arbitrators
who have jurisdiction to decide a dispute on the merits have implied authority
to rule on procedural challenges to arbitrability because those issues are
matters of contract interpretation and application, and are incidental to the
merits of the dispute. City of
Corpus Christi and Corpus Christi Police Officer Association, 99 LA 77
(1992 Marlatt). The broad view is
that arbitrability means the right to have a dispute determined by an
arbitrator whether the dispute is over procedural matters or over the subject
matter of a grievance. In the
instant case, the parties agree that the Employer’s Motion to Dismiss raises
the question of arbitrability.
basic test for determining whether a grievance should be heard in arbitration
was set by the U. S. Supreme Court in United Steelworkers v. Warrior &
Gulf Navigation Co., 363, U.S. 574 (1960), one of the Steelworker Trilogy
cases. If there is an arbitration
clause in the parties’ contract, the test is whether there is an express
provision excluding a particular grievance from arbitration.
If not, only the most forceful evidence of a purpose to exclude the
grievance from arbitration can prevail.
Technologies, Inc., v. Communications Workers of America, 475 US 643,
(1986), the court reaffirmed the test. The
language in Warrior & Gulf created an almost unrebuttable
presumption of arbitrability once a showing is made that the labor agreement
contains an arbitration clause and that clause does not clearly and
specifically exclude the subject matter of the grievance.
Labor and Employment Arbitration Section 8.01, Matthew Bender
& Co., Second Edition, Bornstein, Gosline, Greenbaum, Gen. Editors.
the instant case, Section 3.5 of the collective bargaining agreement prohibits
clearly and specifically arbitration over the selection, qualifications and
removal of foremen by making management the sole judge of those decisions.
The provision goes on to expressly prohibit grievances over
management’s decisions on those matters.
Union argues that the implied covenant of good faith and fair dealing changes
bargaining agreement to create a right to arbitrate the removal of Carlile.
However, in Ramsey v. City of Sand Point, 936 P.2d 126 (Alaska
1997), the Alaska Supreme Court held that the covenant of good faith and fair
dealing cannot be interpreted to prohibit what is expressly permitted by
contract. The contract in
question here expressly prohibits arbitration over the removal of foremen.
As the Court in Ramsey stated, the covenant of good faith and
fair dealing cannot be extended to require an employer to do anything more
than what the contract requires.
the Union’s assertion that Carlile was a whistle blower and therefore has
certain rights under Alaska law, suffice it to say, the collective bargaining
agreement is not the source of any rights Carlile may have under the law
dealing with whistle blowing. He may have rights under that law; however, his removal
as foreman is governed by the labor agreement, specifically Section 3.5
thereof. It is the collective
bargaining agreement that must be looked at to determine arbitrability.
In City of Corpus Christi, and Corpus Christi Police Officers’
Association, 99 LA 71 (1992), Arbitrator Marlatt cited the U.S. Supreme
Court’s conclusion that arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which he has not
agreed to so submit. He went on
necessarily follows from AT&T Technologies that the mere assertion by the
employer of substantive exclusion from arbitration, no matter how frivolous
such assertion may be, is sufficient to divest the arbitrator of jurisdiction
and to compel the Union to take the threshold issue of arbitrability into the
courts. Parties normally avoid
this problem by voluntarily submitting the arbitrability issue to the
arbitrator for decision. However,
in absence of such a submission, the arbitrator cannot lift himself by his own
bootstraps and assume jurisdiction to determine whether he in fact has
where there is a clear and strong provision in the agreement that specifically
and expressly precludes arbitration of management’s decision to remove
foremen, for even stronger reasons, the arbitrator is divested of jurisdiction
to address the merits of this case.
parties agreed the arbitrator was to decide whether the removal of Carlile was
the terms of their labor agreement. I
have concluded it is not. Section
3.5 cannot be ignored. It
explicitly grants the Employer the authority to act as sole judge over the
removal of foremen from a foreman position, and it prohibits the arbitration
over such removals through the grievance procedure.
Accordingly, it will enter an order granting the Employer’s Motion to
Employer’s Motion to Dismiss is granted.
Dated this the _____ day of December 2000.
Jack H. Calhoun