Title: Valex Corporation and International Brotherhood Local Union No. 67 
Date: October 21, 2000
Arbitrator: Allen Pool
Citation: 2000 NAC 133

IN ARBITRATION PROCEEDINGS PURSUANT TO

AGREEMENT BETWEEN THE PARTIES

International Brotherhood of Boilermakers,      )

Iron Ship Builders, Blacksmith, Forgers            )

And Helpers, Metal Polishers Division,            )

Local Union No. 67, AFL-CIO-CIC               )                         ARBITRATOR'S

                                                                        )

- and -                                                             )                       OPINION AND AWARD

                                                                        )

Valex Corporation                                            )                       October 21, 2000

                                                                        )

Involving Hourly Wages                                    )

____________________________________)

            This Arbitration arose pursuant to Agreement between the Metal Polishers, Buffers, Platers, & Allied Workers International Union Local 67, hereinafter referred to as the "Union" and the Valex Corporation, hereinafter referred to as the "Company", under which C. ALLEN POOL was selected to serve as Arbitrator through procedures of the FEDERAL MEDIATION AND CONCILIATION SERVICE.  The parties agreed that the matter was properly before the Arbitrator and that his decision would be final and binding upon the parties.

            The Hearing was held in Ventura, California on September 29, 2000 at which time the parties were afforded the opportunity, of which they availed themselves, to examine and cross-examine witnesses and to introduce relevant evidence, exhibits, and arguments. The witnesses were duly sworn.  The parties elected to submit post-hearing briefs.  The briefs were received in a timely manner and then exchanged between parties via the Arbitrator on October 13^th whereupon the record was closed. 

APPEARANCES

For the Union:                                                              For the Company:

Marco A. Aguilar                                                 Gene Hulsey

Financial Secretary-Treasurer                                              Labor Relations Consultants, Inc.

MPBP & Allied Workers Local 67                                   525 Santiago Ave.

14050 Cherry Ave., Suite 107                                                Long Beach, CA 90814

Fontana, Calif. 92337-7269                                         (562) 498-7011

(909) 428-9236

ISSUES

            The parties, unable to agree, authorized the Arbitrator to frame the issue(s) as determined from the evidence record.

The Union framed the issue as:

            “Did the Company have a right to withhold negotiated hourly wages from Ranjith Samynatham, for the year beginning March 18, 2000?  If the answer is ‘no’, then the grievant is entitled to full back pay.  If the answer is ‘yes’, then the grievant’s hourly wage will remain unchanged.”

The Company framed the issues as:

“Is this matter arbitrable? If so:

Is the Company contractually obligated to pay the grievant wages in excess of his classification rate of pay?  If so, what should that rate of pay be?”

The Issue as framed by the Arbitrator:

            The matter in this instance is not arbitrable.  The rationale for this decision is set forth in the DISCUSSION section below.

BACKGROUND

            The Company is a manufacturer of Stainless Steel Tubing and Fittings for the semi-conductor , pharmaceutical, and bio-technology industries.  Product lines were changed during the years of the 1991-1994 Collective Bargaining Agreement (CBA).  One result of the change in product lines was the agreement reached during the negotiation that produced the 1994-1997 CBA to delete eight (8) job classifications.  The parties also agreed, for the 94-97 CBA, to percent wage increases spelled out in Article 18- Wages to be given to all employees. 

In addition, the parties negotiated a “Grandfather Agreement” regarding wages for the affected employees whose classifications were deleted.  It was agreed that the affected employees would not suffer/receive a wage cut .  They would keep their old rate of pay plus any increases received during the life of the 1994-1997 CBA.  These special provisions were memorialized in writing and made part of the CBA.  The provisions stated, in part:

            “Those employees’ rates of pay shall be based upon the rate in their classification at the expiration of the 1994 collective bargaining agreement so long as they continue to perform the work included in the classification being deleted.  Their wages shall be adjusted to include increases negotiated in the new agreement.”

            At the time of the negotiations that led to the special provisions red-lining the affected employees in their old wage rates, the Grievant was no longer performing work within his former classification of “Welder Fabricator Certified”.  He was performing work within the Welder “A” classification.  With the “Grandfather Agreement”, the Grievant (along with the other affected employees) did not receive a cut in wages.  He was red-lined into his old wage rate and, in addition, he received the negotiated wage increases expressed in the 1994-1997 CBA.

            When the parties commenced negotiations for the 1997-2000 CBA;, the Grievant was the sole remaining employee whose classification wage rate (Welder “A”) had not risen to his red-lined wage rate.  Since the “Grandfather Agreement” would expire at the end of the 1994-1997 CBA, the Company proposed the following language with regards to the Grievant for the new 1997-2000 CBA:

“We intend to eliminate the Grandfather Agreement.

Ranji Samynatham who was Grandfathered in a job he no longer holds is presently making $17.97 plus $1.00 for Lead.  He should be making $10.63 plus $1.00 for Lead.  We will not cut his wage during the term of this Agreement, but we will not give him a wage increase until his wages fall in line.” (Joint Exhibit No. 6)

            The Union rejected the Company’s proposal.  The Company responded with a proposal whereby the Company would freeze the Grievant’s wage rate at $17.97 plus the $1.00 lead pay; but, he would not be given a wage increase until his wage comes in line with the Welder “A” classification hourly wage.  The Union then met privately with the Grievant and explained the wage freeze to him.  The Grievant testified that he was depressed about the matter, but that he knew it would happen.  He also testified that he agreed to the wage freeze.  So, for the next three years, the Grievant’s wage was frozen at $17.97 plus the $1.00 lead pay.

            During negotiations that led to the current 2000-2003 CBA, the Grievant’s wage status was not a subject of the negotiations.  Neither party, at anytime, brought up the matter during the negotiations.  In its pre-hearing brief, the Company stated that it “overlooked the matter entirely” and “continued to pay the Grievant his prior rate of $17.97, the last special rate specifically negotiated for him”.  In it’s post-hearing brief, the Company’s negotiator and advocate, Gene Hulsey, stated that he and his committee person, Human Resource Director JoAnn Rancont, were not aware during the negotiations that the Grievant was still making a wage in excess of the classification rate of pay for Welder “A”. 

The new CBA became effective on March 18, 2000.  The newly negotiated classification wage structure became effective on the same date.  When the Union Steward, Rick Edwards, learned that the Grievant had not received a wage increase, he met with Company Vice President Raul Kottler.  Mr. Kottler informed him that the terms of the new 2000-2003 CBA did not entitle the Grievant to a wage increase.  Moreover, Mr. Kottler informed Steward Edwards that the negotiated special wage agreement for the Grievant had expired with the old CBA and, under the terms of the current CBA, the Grievant is only entitled to the Welder “A” classification hourly wage rate of $16.87.  (This is $1.10 less than the frozen rate of $17.97.)  Steward Edwards called the Union and a grievance was filed that was processed to this Arbitration.

DISCUSSION

The language in Section 9.2 of the CBA clearly reflects the intent of the parties to exclude the Wage Structure from arbitration.  Therefore, the question of whether all employees, including the Grievant, are entitled to a 3% wage increase is outside the jurisdiction of the Arbitrator.  However, the real issue in this dispute was not the negotiated Wage Structure nor was the issue about any other expressed provision in the CBA.  The real issue focused on the March, 1997 negotiated special agreement between the parties regarding the Grievant’s wage status.  The significant factor here is that the special agreement expired with the end of the 1997-2000 CBA and was not a subject of negotiations leading to the current 2000-2003 CBA. 

The special agreement had a life span of three years.  The Union acknowledged the three-year life span on page 3 & 4 of its post-hearing brief.  Since the parties did not negotiate an extension of the special agreement, the Grievant’s wage is now set by the terms of the 2000-2003 CBA.  Under those terms, The Grievants is only entitled to the Welder “A” classification hourly wage, $16.87 plus his $1.00 lead pay.

            However, at the risk of appearing to shake my finger, I must admonish both the Union and the Company for their negligence in “forgetting’ the Grievant during the negotiations.  From the evidence record and the testimony, it was apparent the Grievant is highly regarded as a valued employee by both the Company and his peers.  To have “forgotten” him and left him “out of the loop”, however unintentional, was, to say the least, unfair.  He is deserving of better.

            I must also surmise that except for the actions of an overly eager and inexperienced steward, the matter likely would have been resolved by the Union and Company without incurring the cost of and the time lost in this arbitration.  It was clear from the evidence record and the testimony that the Company never intended that the Grievant suffer a wage cut.  It was very noticeable the frequency with which the Company used the phrase “It was never our intent to cut wages” when addressing the matter. 

The Company, for over six years, willingly agreed to and did pay the Grievant a wage in excess of the Welder “A” classification rate of pay.  It’s incredulous to believe the Company would not have agreed to discuss an extension of the special agreement if anyone from either side had brought up the matter during negotiations.  In fairness to the Grievant, I strongly recommend that the Union and the Company meet and discuss the matter of the expired special agreement regarding the Grievant.

            For the reasons discussed above, the matter is not arbitrable.

AWARD

The Grievance is denied.  The matter is not arbitrable.

Date: _______________________              ______________________________

                                                                        C. ALLEN POOL

 Arbitrator

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