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Title: State of Alaska, Department of Corrections and Public Safety Employees Association
Date: July 25, 2000 
Arbitrator: David M. Gaba 
Citation: 2000 NAC 146 

ARBITRATION PANEL PROVIDED BY:
AMERICAN ARBITRATION ASSOCIATION

 

In the Matter of an Arbitration

            Between

PUBLIC SAFETY EMPLOYEES ASSOCIATION on behalf of  STEVE TURNEY

            And

STATE OF ALASKA, DEPARTMENT OF CORRECTIONS

 

ARBITRATOR’S

OPINION AND AWARD

I.            INTRODUCTION

This arbitration arises pursuant to a Collective Bargaining Agreement between the PUBLIC SAFETY EMPLOYEES ASSOCIATION, (hereinafter “Association”), on behalf of the Grievant, Steve Turney and the STATE OF ALASKA, DEPARTMENT OF CORRECTIONS (hereinafter “Employer” or “State”), under which DAVID GABA was selected to serve as Arbitrator and under which his award shall be final and binding among the parties.

A hearing was held on July 14, 2000 in Anchorage, Alaska.  The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute.  Both parties declined the opportunity to file post-hearing briefs.

APPEARANCES:

On behalf of the Association:

James A. Gasper, Esq.
Public Safety Employees Association
4300 Boniface Pky  #116
Anchorage, AK  99504

            On behalf of the Employer:

Art Chance
State of Alaska, Department of Administration
Division of Personnel, Labor Relations Section
P.O. Box 110201
Juneau, AK  99811

II.            ISSUES

The parties were unable to stipulate to the issues in the case.  The Association formulated the issue as follows:

Did the State of Alaska, Department of Corrections violate Article 13.3.B.4 of the bargaining agreement by failing to call Correctional Officer Steve Turney on his cell phone on December 12, 1999 for the purpose of working overtime?  If so, the Association requests that the arbitrator order Department of Corrections to pay Officer Turney twelve hours overtime for the missed work opportunity.

The Employer requested that the Arbitrator frame the issue.

Upon review, the Arbitrator formulates the issues as follows:

Did the State of Alaska, Department of Corrections violate Article 13.3.B.4 of the bargaining agreement by failing to call Correctional Officer Steve Turney on his cell phone on December 12, 1999 for the purpose of working overtime?  If so, what is the appropriate remedy?

III.            RELEVANT PORTIONS OF THE CONTRACT

            The Collective Bargaining Agreement between the parties provides, in pertinent part, as follows:[1]

            13.3  Assignment of Additional Hours

A.  Application

1.      When management decides there is a need to call off duty personnel to work, the following procedure shall be used to provide an equitable opportunity for assignment of additional hours.

2.      These procedures do not apply to emergency situations as determined by the Employer or when application would result in a member working more than 16 (sixteen) hours in any 24-hour (twenty-four) period.

3.      A record of actual compensated overtime hours worked by the overtime eligible bargaining unit members will be maintained and made available for reasonable inspection by appropriate Association representatives.

B.  Application Procedures

1.      All worksites will use a standardized form on which interested Correctional Officers must sign to indicate their availability for work assignments during their regularly scheduled days off.

2.      The form, entitled “Work Assignment Contact List” will be posted in a designated area in each worksite at the beginning of each shift rotation.  Correctional Officers who wish to be called for additional work assignments during their regularly scheduled days off must sign the Work Assignment Contact List before 2400 hours each Monday.  After 2400 hours on Monday, Correctional Officers may add their names to the bottom of the Work Assignment List through the end of the shift rotation at which time the list is final.  No names shall be added to the Work Assignment Contact List after the end of the last shift in that rotation.  The order of name placement of those interested will be randomized.

3.      Correctional Officers not present at the worksite during their regularly scheduled shift by reason of leave, training, or other similar cause may contact the Shift Sergeant, who will sign their names to Work Assignment Contact Lists as provided above.

4.      Work Assignment Contact Lists will be used for purposes of scheduling Correctional Officers for work assignments.  Correctional Officers on the List will be called in rotation.  The Employer’s designee is responsible for recording the attempted contact on the form and the nature of the response, if any.  If the attempt ends with a message recorder, beeper, etc., there is no requirement that a message be left or additional contact be made before moving to the next name on the list.  Correctional Officers may supply up to two telephone numbers on the Work Assignment Contact List and both will be called.

5.      A contact attempt is presumed to have been made as recorded.  Failure to complete Work Assignment Contact Lists properly may result in discipline.

6.      If one full rotation through the Work Assignment Contact List results in the failure to secure an available Correctional Officer, then any method, including but not limited to contacting Correctional Officers from other worksites or requiring additional work to be performed by any bargaining unit member may be used.

7.      The Employer can limit use of these procedures to members who meet specialized requirements as determined by the Employer or if selection from the list would result in conflict of the parties’ rights or obligations under this agreement, rulings, determinations, regulation, or statutes.

8.      Correctional Officers who place their names on a Work Assignment Contact List for additional work assignments have no entitlement or expectation to specific post or duty assignments, nor are they entitled to recall or standby pay.

C.  Randomization

Each work period, the random lists shall be compiled by placing each eligible employee’s name into a selection device.  Once all names have been deposited, they shall be mixed.  After mixing is complete, each name shall be selected one at a time by the Superintendent or his designee.  The first name selected shall be placed on the top of the work assignment list, and so forth. 

IV.            FACTS

In 1999, the parties negotiated a new collective bargaining agreement that became effective on or about December 1, 1999.  Included in the new Collective Bargaining Agreement was Article 13 (specifically Article 13.3) which governed the assignment of additional hours to members of the bargaining unit who worked overtime.[2]  Article 13 contained specific procedures that the State was required to utilize in order to assign overtime.  Article 13 also created a document called a “ Work Assignment Contact List,” and provided that: “Correctional Officers may supply up to two telephone numbers on the Work Assignment Contact List and both will be called.”[3]

            The grievant in this matter was employed by the State at the Palmer Correctional Center.  Under the system that had been in effect in the Palmer Correctional Center for a considerable period of time, Corrections Officer III’s (often referred to at the work-site as “Sergeants”) were responsible for assigning overtime work to Officers who had placed their names on the “Work Assignment Contact List.”  The Sergeants performing this work were members of the same bargaining unit as the Correction Officers.

            At the hearing, the evidence was uncontradicted that the plain language in the parties’ collective bargaining agreement was not being followed at the Palmer Correctional Center.  Rather, the Corrections Officer III’s, who called in overtime workers, would utilize a “rolodex” in order to obtain the phone numbers of the Officers in question since officers requesting overtime did not write their phone numbers on the Work Assignment Contact List.  This system was used because a glassed-in work area would allow inmates to view phone numbers listed on a “Work Assignment Contact List”.  The system in use in the Palmer Correctional Center had predated the current collective bargaining agreement, and had long-standing and consistent application.

Officer Steve Turney had been employed by the State of Alaska as a Corrections Officer since 1981.  He had worked at the Palmer Correctional Center since approximately 1983.  During the past 17 years, Officer Turney had worked as a shift supervisor, and had been responsible for scheduling Officers’ overtime according to Article 13.3 of the collective bargaining agreement, as well as to a previous system outlined in a memorandum from Assistant Superintendent Floyd Belden.[4]  In December of 1999 Corrections Officer II Steve Turney placed his name on the “Work Assignment Contact List” for the week of December 9, 1999 through December 15, 1999.[5]  On  December 12, 1999 Officer Tuney was next in line to receive a call for an overtime assignment.  The shift supervisor on that particular evening was Sergeant Zorb, who contacted the Officers listed on the “Work Assignment Contact List”.  Sergeant Zorb correctly called Officer Turney at home, but was unable to reach him.  Sergeant Zorb then failed to failed to follow the long standing practice of contacting Officer Turney at his cellular phone number.  Officer Turney’s cellular phone number was correctly listed on the “rolodex” that was used at the Palmer Correctional Center, but was not listed on the Work Assignment Contact List.

            Of the eight Officers listed on the first page of the “Work Assignment Contact List” for the week in question, none had placed their home phone numbers as required by the Collective Bargaining Agreement.  Additionally, only one Officer (Officer Freer) had listed his cellular phone number on the “Work Assignment Contact List”.  The Officers who worked at the Palmer Correctional Center relied on the past practice of the parties to use the “rolodex” rather than relying on the specific language found in Article 13 of the parties’ collective bargaining agreement.

            Sergeant Zorb’s failure to follow the past practice of the parties resulted in Officer Turney receiving one less overtime shift than he would otherwise have been entitled to.

VI.  OPINION

A.            Governing Standards for Contract Interpretation.

The applicable standards for contract interpretation are well established.  Where the language in the Collective Bargaining Agreement is clear and unambiguous, the arbitrator must give effect to the plain meaning of the language.  This is so even when one party finds the result unexpected or harsh.  Words are to be given their ordinary and popularly accepted meaning, unless other evidence indicates that the parties intended some specialized meaning.  As stated by Elkouri:

Arbitrators have often ruled that in the absence of a showing of mutual understanding of the parties to the contrary the usual and ordinary definition of terms as defined by a reliable dictionary should govern.  Use of dictionary definitions in arbital opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[6]  

Evidence of bargaining history cannot be used to vary clear contract language, however, it can be used to demonstrate latent ambiguity in the language.  Evidence of post-contract events is admissible to establish that the parties later agreed to clarify or modify the Agreement, which applies in the instant case.  As stated by Arbitrator Jules J. Justin:  

“Plain and unambiguous words are undisputed facts.  The conduct of Parties may be used to fix a meaning to words and phrases of uncertain meaning.  Prior acts cannot be used to change the explicit terms of a contract.  An arbitrator’s function is not to rewrite the Parties’ contract.  His function is limited to finding out what the Parties intended under a particular clause.  The intent of the Parties is to be found in the words which they, themselves, employed to express their intent.  When the language used is clear and explicit, the arbitrator is constrained to give effect to the thought expressed by words used.”[7]

In this contract interpretation case, the Association bears the burden of establishing that the Employer violated the Collective Bargaining Agreement.  While the result in this case could be harsh, as stated by arbitrator Fred Whitney:

An arbitrator cannot “ignore clear cut contractual language” and “may not legislate new language since to do so would usurp the role of the labor organization and the employer.”  Even though the parties to the agreement disagree as to its meaning, an arbitrator who finds language to be unambiguous will enforce its clear meaning.”[8]  

The language of the contract is clear: Officer Turney did not place his phone numbers on the “Work Assignment Contact List,” and hence did not comply with the letter of the contract.  This leaves the past practice of the parties as the only remaining method that might be used to construe the language of the Collective Bargaining Agreement in favor of the grievant.  Arbitrators have long used the custom and practice of the applicable industry to shed light upon the intended meaning of an ambiguous contract provision.[9]  Where practice has established a meaning for language contained in past contracts and continued by the parties in a new agreement, the language will be presumed to have the meaning given it by that practice.[10]  As one arbitrator stated:

“There would have to be very strong and compelling reasons for an arbitrator to change the practice by which on contract provision has been interpreted in a plant over a period of several years and several contracts.  There would have to be a clear and unambiguous direction in the language used to effect such a change…”[11]

While the past practice in the instant case appears to be long-standing and sensible, there is a question as to whether the practice had been accepted by both parties.  As stated by Elkouri:

The weight to be accorded past practice as an interpretation guide may vary greatly from case to case.  In this regard, the degree of mutuality is an important factor.  Unilateral interpretations might not bind the other party.[12]  However, continued failure of one party to object to the other party’s interpretation is sometimes held to constitute acceptance of such interpretation so as, in effect, to make it mutual.[13]

In the case before us, it is not clear that the employer had accepted the past practice.  This is due to the unique circumstance of having employees from the same bargaining unit call and schedule their fellow employees.  If the Sergeant in the current case had been a member of management, there is no question that the past practice would have been mutual, and the Association would have prevailed in its grievance.  Further, if the parties had not recently implemented a new Collective Bargaining Agreement with clear language on the subject, the Association could very well have demonstrated mutuality and prevailed.

The unique set of facts in this case also prevents the Association from prevailing on the theory of ‘substantial performance.”  Substantial performance exists where there has been no willful departure from the terms of the contract, no omission in essential points, the contract has been honestly and faithfully performed in its material and substantial particulars, and the only variance from the strict and literal performance consists of technical or unimportant omissions or defects.  The equitable doctrine of “substantial performance” protects against forfeiture for technical inadvertence or trivial variations or omissions in performance.[14]

At first blush it would appear that the doctrine is applicable in the instant case, and that the grievant is entitled to relief.  However, courts have uniformly held:

Substantial performance of a contract is shown when party alleging substantial performance has made an honest endeavor in good faith to perform his part of the contract, when results of his endeavor are beneficial to other party, and when such benefits are retained by the other party; if any one of these circumstances is not established the performance is not substantial, and the party has no right of recovery.[15]

In the case at hand, Sergeant Zorb’s omission in calling Officer Turney certainly resulted in damage to Turney, however, it did not result in a windfall for the State.  The State was still required to have an officer come in at the overtime rate, and received no benefit from Zorb’s mistake.  The arbitrator is also mindful that the parties negotiated section 16.6 (B) into their Collective Bargaining Agreement, which states: 

The arbitrator shall have no authority to amend, add to, subtract from, or eliminate any terms of this agreement.

            In short, while the Association produced substantial evidence to support its position, the State also produced substantial evidence.  In contract interpretation cases, the burden is on the Association to produce a preponderance of the evidence supporting its position.  While this was a very close case, a very unique set of unusual circumstances, including the timing of the implementation of the new Collective Bargaining Agreement, and Sergeant Zorb’s being a member of the bargaining unit, have placed the Association in a difficult position.  I am not happy with the decision that I have to make, and I don’t pretend that it is either “fair” or “just,” however, I believe it to be legally correct.

V.            AWARD

The grievance is denied.  

All fees and expenses charged by the Arbitrator shall be borne by the Association, as provided for in Section 16.7 (e) in the parties Collective Bargaining Agreement.

 

 

                                                                    ___________________________
                        
                                                        David Gaba, Arbitrator

                                                                                July 25, 2000
                        
                                                        Seattle, Washington

 

[1] Exhibit J-1

[2] Exhibit J-1

[3] Exhibit J-1

[4] Exhibit J-2

[5]Exhibit J-3

[6] Elkouri and Elkouri, How Arbitration Works, Pages 490-91 (5th ed. 1997).

[7] Phelps Dodge Copper Prods. Corp., 16 LA 229, 233 (1951).

[8] Elkouri and Elkouri, How Arbitration Works, Page 482 (5th ed. 1997).

[9] See; 76 LA 968, & 68 LA 953

[10] See Arbitrator Murphy in 78 LA 819, 822; Richman in 77 LA 1045, 1048; Lipson in 77 LA 203, 206-207; Mueller in 76 LA 1236, 1240; Johannes in 75 LA 106,109; Allen in 74 LA 13, 15; Kapsch in 72 LA 1104, 1106; Moran in 72 LA 364, 366; Mallon in 71 LA 699, 701; Megley in 70 LA 925, 928.

[11] Webster Tobacco Co., 5 LA 164, 166 (Branschain, 1946).

[12] See Arbitrator Roumell in 74 LA 569, 570.

[13] Elkouri and Elkouri, How Arbitration Works, (5th ed. 1997).

[14] Sgarlat v. Griffith, 349 Pa. 42, 36 A.2d 330, 332.

[15] Alliance Tractor & Implement Co. v Lukens Tool & Die Co., 194 Neb. 473, 233 N.W.2d 299, 301 (emphasis added).

 

 

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