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Title: Employer and Union
Date: October 21, 2000
Arbitrator: Philip Kienast
Citation: 2000 NAC 149

 
In the Matter of Arbitration

          between

Employer

          and 

Union

 

OPINION
AND
AWARD

 

                                                                                            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on June 30, 2000 and the record closed upon receipt by the Arbitrator of post hearing briefs on September 20, 2000.  The parties stipulated the issue for decision as:

What is the appropriate remedy for PECO’s failure to assign overtime to Janus Nelson and/or Caryl Graham?

The parties also stipulated (J4):

   1.   The issue is properly before the arbitrator;

 

   2.   On January 7, 2000, PECO failed to offer overtime to Janus Nelson which was available on January 10, 2000;

 

   3.   On January 7, 2000, PECO failed to offer overtime to Caryl Graham which was available on January 10, 2000;

 

   4.   It is not disputed that pursuant to the collective bargaining agreement, Janus Nelson was entitled to two hours of overtime on January 10, 2000;

 

   5.   It is not disputed that pursuant to the collective bargaining agreement, Caryl Graham was entitled to two hours of overtime on January 10, 2000;

 

   6.   PECO’s failure to assign overtime to Janus Nelson was not done in bad faith or for an invidious, discriminatory or improper purpose;

 

   7.   PECO’s failure to assign overtime to Caryl Graham was not done in bad faith or for an invidious, discriminatory or improper purpose;

 

   8.   Janus Nelson was available to work 2 hours of overtime on January 10, 2000;

 

   9.   Caryl Graham was available to work 2 hours of overtime on January 10, 2000;

 

 10.   PECO offered Janus Nelson two hours of make-up overtime;

 

 11.   Janus Nelson declined PECO’s offer of make-up overtime;

 

 12.   PECO offered Caryl Graham two hours of make-up overtime; and

 

 13.   Caryl Graham declined PECO’s offer of make-up overtime.

 

Pertinent Agreement Provisions

ARTICLE 13 – OVERTIME – PREMIUM RATES

 

13.7    Overtime Assignment:

 

A.      Weekday Overtime:  For weekday overtime work purposes, qualified employees who usually perform the work needed will be requested to work by following the procedure of running the seniority list each time.  Senior employees may refuse such overtime if qualified junior employees are available.

 

B.      Weekend and Holiday Overtime Assignments:

 

1.     Weekend and holiday overtime work will be assigned to employees who have signed up for such overtime on the list provided by the Company in order of their Company seniority provided they are qualified to perform the required overtime work to Company standards in the following order:

 

a.      To the senior qualified employees assigned to the department as set forth in this Agreement.  For the purpose of this Section, employees in Assembly/ Jobbing (Department 4) may sign up for overtime in Assembly/Controls (Department 6) and vice versa.  Employees must sign up for overtime in their own department before they are eligible for overtime work outside of their department.

 

b.      To the senior qualified employees in other departments.

 

2.      Thereafter, if more employees are needed, they will be assigned by order of reverse seniority provided they are qualified to perform the required overtime work to Company standards.

 

ARTICLE 26 – GRIEVANCE PROCEDURE

 

26.3            Submission Agreement.  At least ten (10) working days prior to the arbitration hearing, the parties shall enter into a submission agreement, which shall clearly state the arbitrable issue or issues to be decided.  If the parties are unable to agree on a joint statement of the arbitrable issue or issues to be decided by the arbiter, the submission of the same shall contain the written grievance, the Company’s answer, and the status of the appeals, with the notation that the parties could not agree upon a submission agreement.  Additionally, the Company and Union may submit their statement of the arbitrable issue(s) to the arbitrator.

 

26.4            Arbitrator’s Authority:  The arbitrator shall have no authority to make a decision on an issue not submitted to him.  The arbitrator shall have no authority to alter, modify, or amend any terms of this Agreement.  The parties agree that the power and jurisdiction of any arbitrator chosen hereunder shall be limited to deciding whether there has been a violation of the provision of this Agreement and, of so, the appropriate remedy.  The arbitrator shall not substitute his own judgment for that of the Company unless the arbitrator determines that the Company acted in an arbitrary and capricious manner.

 

26.5            Jurisdiction:  The jurisdiction of the arbitrator shall be limited to the interpretation and application of this Agreement, and he shall not have authority to alter, modify, or amend this Agreement except as provided for in Article 28, “Separability and Savings”.  The decision of the arbitrator shall be final, conclusive and binding upon the Company, the Union and the employees involved.

 

ARTICLE 27 – MANAGEMENT RESPONSIBILITIES

 

27.1            General Responsibilities:  All management rights not expressly curtailed or surrendered by this Agreement are reserved to the Company.  The Company’s rights may not be exercised in a manner that conflicts with the provisions of this Agreement, and disputes concerning the same are subject to Article 26, Grievance Procedure.

 

27.2            Specific Responsibilities:  The Company’s rights to manage its business specifically include, but are not limited to:  Control, direct and manage all of its operations; the determination of the number, size, and location of its operations, and the extent to which the means and manner by which it shall be operated, shut down, abandoned, or relocate, in a whole or in part, temporarily or permanently; to determine the need for a reduction or an increase in the work force and to implement its decision; to establish, implement, and revise, employment and production standards; determine products to be manufactured, schedule of production, methods of manufacturing; to direct the work force, including but not limited to assigning and distributing work to employees; to subcontract work when it determines such is necessary for economic or other business considerations; to introduce new jobs and new and improved methods of operation.

Background

            The Employer manufactures parts for use in the aerospace and medical industries.  It is undisputed the two grievants were the senior employees and should have each been assigned two hours of overtime on January 10, 2000. 

            The Employer contends that the grievants were bypassed through error and that this error can be corrected by assigning them at their convenience to two hours of productive work at the overtime rate.  The Employer argues that the management rights provision in conjunction with the arbitration language prohibit the Arbitrator from awarding payment of the overtime missed as a result of the Employer’s error.

            The Union contends the Employer must rectify its mistake by paying for the overtime missed.  It argues the Employer has done so in the past and that such a remedy is one typically ordered by arbitrators in comparable cases.

Analysis and Conclusions

            The Employer argues that Article 26 prohibits the Arbitrator from substituting his judgment of what is the appropriate remedy in lieu of the Employer’s judgment of what constitutes an appropriate remedy.  This argument is not persuasive.

            Earlier in Article 27 the parties give power to the Arbitrator to decide what is the appropriate remedy in the face of finding a violation of the Agreement.  By stipulation the Employer admits it violated the overtime provision of the Agreement.  Accordingly, by clear and explicit language of the Agreement as well as the specific language of the stipulated issues from the parties it is within the power and jurisdiction of the Arbitrator to decide on what is the appropriate remedy for this violation.  Moreover, by determining the appropriate remedy the Arbitrator will not be substituting his judgment for that of the Employer; rather, he shall be executing the clear and specific mandate jointly agreed to by the Employer in sentence 3 of Section 26.4.

            In addition, it is a well established principle of contract interpretation that specific language controls general language.  In this case the parties agreed generally in Section 27.2 to permit management the discretion to assign and distribute work.  However, in Section 26.4, the parties give the Arbitrator the specific power to determine “the appropriate remedy.”

            The vast majority of arbitrators have held that if an employee, entitled to overtime by seniority status, has been bypassed then the appropriate remedy is an award of back pay at the appropriate rate for the overtime hours missed.  Arbitrators who order make-up overtime as a remedy usually do so only because overtime is distributed equally in a unit of employees and, therefore, a grievant’s overtime can typically be brought up to par within a reasonable time.  (See:  Elkouri, How Arbitration Works, 4th Edition, pp. 536-37).

            The grievants in this case are not in an equalization unit.  They were entitled to the overtime in question.  Accordingly, the Arbitrator concludes the appropriate remedy is an order they each be paid for the hours missed.

            This remedy is also appropriate because it eliminates the administrative burden that would be placed on the parties to determine in each overtime misassignment whether the cause was simply error or was intentional.  Neither the Employer or the Union will have to expend time and resources to determine the intent of the person who failed to properly assign overtime.  This would be a larger burden on both parties than the infrequent and small payments of back overtime to senior employees improperly passed over in the assignment of available overtime hours.

AWARD

1.         The appropriate remedy for PECO’s failure to assign overtime to Janet Nelson and Caryl Graham is to pay them for the overtime hours assigned to other employees.  In the case of each grievant this amounts to two (2) hours at the overtime rate in effect on the date in question.

 

__________________________________
Philip Kienast
Bothell, Washington
October 21, 2000

 

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