IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

 

 

THE AMERICAN FEDERATION OF STATE,     )

COUNTY, AND MUNICIPAL EMPLOYEES,      )

)

Union,                                    )

)

and                                                                 )           OPINION AND AWARD

)

STATE OF OREGON, DEPARTMENT OF          )

ADMINISTRATIVE SERVICES ON BEHALF      )

OF THE DEPARTMENT OF CORRECTIONS,   )

)

Employer.                               )

 

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Before

Jack H. Calhoun

Arbitrator

 

 

 

 

 

 

Hearing held

February 2, 2001

Ontario, Oregon

 

 

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REPRESENTATION

 

For the Union:                                                 For the Employer:

 

Allison Hassler                                                Lory J. Kraut

Legal Counsel                                                 Assistant Attorney General

Oregon AFSCME, Council 75                        Department of Justice

1174 Gateway Loop, Suite 112                       Labor and Employment Section

Springfield, Oregon 97477                              1162 Court Street NE

Salem, Oregon 97301-4096

BACKGROUND

 

The American Federation of State, County and Municipal Employees (the Union) and the State of Oregon, Department of Administration Services on behalf of the Department of Corrections (the Employer) were parties to a collective bargaining agreement that provided for shift and days-off bidding for covered employees.  When Kevin Jackson, a sergeant at the Snake River Correctional Institution, became president of the local Union, he challenged the way the bidding process was being conducted by filing a grievance alleging management had violated the agreement.  The matter came for hearing pursuant to the 1994-1999 agreement.  The hearing was considered closed on March 27, 2001, the date post-hearing briefs were received.

ISSUE

The parties agreed that the substantive issue in dispute is whether the Employer violated Article 25 of the collective bargaining agreement and the 1995 letter of agreement when it conducted its June 1999, shift and days-off bidding at Snake River Correctional Institution.  If so, what is the remedy?  The Employer raised a procedural arbitrability issue.

RELEVANT CONTRACT PROVISIONS

The following provisions of the collective bargaining agreement are relevant to the issue in dispute:

Article I – SCOPE OF AGREEMENT

. . .

Section 4.

The contract incorporates the sole and complete Agreement between the Agency and the Union resulting from negotiations held pursuant to the provisions of the ORS 243.650 et. seq. and supersedes all prior labor contracts.  It is acknowledged that during negotiations which resulted in this Agreement, each party had the unlimited right and opportunity to make demands and proposals with respect to any subject or matter appropriate for collective bargaining and that the understandings and agreements arrived at by the parties after the exercise of that right and opportunity are set forth in the Agreement.  It shall not be modified in whole or in part except by another written instrument duly executed by the parties.

. . .

Article 4 – UNION/MANAGEMENT MEETINGS

. . .

Section 3.  Scope of Authority

 

Meetings will be held for purpose of discussion only.  This committee will not enter into a binding agreement of any sort.  Contractual type negotiations, attempts to resolve individual grievances, or similar matters must be handled in the manner provided within the Contract and will not be proper subject matter for such meeting.

 

Article 10 – MANAGEMENT RIGHTS

 

The Union agrees that the Employer retains all inherent rights of management and hereby recognizes the sole and exclusive right of the State of Oregon, as the Employer, to operate and manage its affairs in accordance with its responsibilities  to maintain efficient governmental operations.  The Employer retains all rights to direct the work of its employees, including, but not limited to, the right to hire, promote, assign, transfer, demote, suspend, or discharge employees for proper cause; to schedule work; determine the processes for accomplishing work; to relieve employees from duties because of lack of work or for other legitimate reasons; to take action as necessary to carry out the missions of the State; or determine the methods, means and personnel by which operations are to be carried on, except as modified or circumscribed by the terms of this Agreement.  The retention of these rights does not preclude any employee from filing a grievance pursuant to Article 51, Grievance and Arbitration Procedure, or seeking a review of the exercise of these rights, when it is alleged such exercise violates provisions of this Agreement.

 

Article 25

. . .

Section 10 – SHIFT BIDDING PROCEDURE BY INSTITUTION

. . .      

Snake River Correctional Institution

 

a.  Work Schedule Bidding.  Each security staff member may submit their (sic) bid for a shift and days off work schedule following the posting of the work schedule by the Security Manager.  Employees shall have ten (10) working days following the posting of the work schedule to make their bid selections.  The Employer will post the work schedule for bidding twenty-five (25) calendar days prior to the rotation date.

 

Security staff may submit three (3) selections.  Such selections must be submitted in priority order.  Officers who have completed trial service may bid shifts and days off in order of seniority as defined in Section 9 of this Article.  Security staff hired in between bid periods will be assigned by the Security Manager.

 

The parties agree that the intent of this section is to provide as many work and training opportunities as possible for all security staff regardless of seniority while recognizing the importance of seniority and the individual choices of staff.

 

Security staff will bid every six (6) months for rotation effective the first Sunday of February and August

 

Article 51 – GRIEVANCE AND ARBITRATION

. . .

Step 2.  If the issue is unresolved, the Union will submit a written grievance containing the date of occurrence, the act or omission that created the grievance, the section violated, and the remedy desired within thirty (30) days of the alleged occurrence.  Where the issue is not settled at step 1, the Union shall submit the grievance to the functional unit manager within thirty (30) days of the alleged occurrence.  The Manager response shall be due in writing within fifteen (15) calendar days of receipt of the appeal.

 

Step 3.  If the grievance is not resolved at Step 2, the Union shall submit the grievance to the Director or designee, within fifteen (15) calendar days from the receipt of the response at step 2(b).  The Director or designee shall respond in writing within fifteen (15) calendar days from the receipt of the appeal.

 

Step 4.  If the grievance is not resolved by the Agency, the Union shall notify the Labor Relations divisions of the Department of Administrative Services within fifteen (15) calendar  days of receipt of the Agency response that such response is not acceptable.  A meeting will be held between the parties to mutually share information about the grievance.  The parties shall fully disclose their respective positions and all supporting evidence.  All potential resolutions shall be discussed in this meeting and shall be non-prejudicial to the parties if arbitration occurs.  The meeting shall occur within thirty (30) days of the Union’s notice, unless otherwise agreed to in writing.

 

Step 5.  If the grievance is not resolved at the Labor Relations Division within thirty (30) days of the step 4 notice or as otherwise mutually agreed to in writing, the Union shall notify the Department of Administrative Services that is (sic) desires arbitration of the grievance.

. . .

Section 6.

 

Time limits specified in this procedure must be observed unless either party requests a specific extension of time which, if agreed to, shall be stipulated in writing and shall become part of the grievance record.  If management fails to issue a response within the time limits set forth in this Article, the grievance may be advanced to the next step of the grievance procedure.

 

FACTS

 

Before Sgt. Jackson became president of the local Union on an interim basis in June of 1999, the parties operated on an informal basis with respect to strict adherence to the provision in the agreement that required any modification to it be reduced to writing.  Prior to the time he became president, management and the local Union made informal changes in working conditions despite the language in the agreement to the contrary.  One such change was to the rotation dates after the shift and days-off bidding process was completed.

Beginning in approximately 1994, the Employer began separating out from the general bidding process the special housing units.  Instead of a general bidding process whereby all shifts and days off for all positions in the bargaining unit were open to bid by employees in accordance with their overall seniority, the Employer made up different bid lists for special units.  The process was referred to as exempt bidding.

In 1995, the parties entered into a formal letter of agreement that permitted the Employer to assign employees to the Minimum Facility for 12 to 18 month rotations as opposed to the six-month rotation required by the agreement for other bids.  The assignment was accomplished by placing an asterisk on the general bid work schedules beside the shift and days off for the Minimum Facility.  If an employee bid those shifts and days-off and was accepted, he knew he would be assigned to the Minimum Facility for 18 months the first time and 12 moths thereafter.

In March of 1998, Frank Vehafric, a representative for the Union, and Employer representatives negotiated to formally modify the bidding process for the special units.  The parties agreed to a process and Mr. Vehafric was to draft the actual language so that the approval of the individuals who had the authority to modify the collective bargaining agreement could be sought.  Mr. Vehafric left in April of 1999.  His successor did not take over until June.

When shift and days-off bidding began in the summer of 1999, Sgt. Jackson saw that the special housing units had been separated from the general population, creating four seniority lists.  The bid was scheduled for a July first rotation or effective date.  Sgt. Jackson did not immediately file a grievance because he believed the letter of agreement that was to have  been negotiated and approved in 1998 was in  effect prior to the time he became president. Sgt.  Jackson had spoken to several management officials who told him the letter of agreement existed.  The 1999 summer bid was finalized on June 9, 1999.

After he became president, Sgt. Jackson asked several management officials about the letter of agreement, trying to obtain a copy.  During a labor/management committee meeting on June 28, 1999, Sgt. Jackson again inquired about the letter of agreement.  Assistant Superintendent Ward told him it existed and left the meeting to find it.  He returned later and said it did not exist, it was something that had been agreed to, but it was not reduced to writing.  Sgt. Jackson pointed out that the collective bargaining agreement prohibited binding agreements made at labor/management committee meetings that modified the agreement.  He informed the committee that the recent bid should be redone so that all employees could exercise their seniority to the fullest extent possible under the collective bargaining agreement. Sgt. Jackson maintained that some employees could have had a Saturday or Sunday off or certain other desirable shifts and days off they may have wanted if the bidding had been done in accordance with the collective bargaining agreement.

Management representatives called Mark Hunt, Labor Relations Manager for the Department of Administrative Services, who told them no letter of agreement was ever discussed with him.  Mr. Hunt had to approve any agreement that modified the collective bargaining agreement.  He had approved the 1995 letter of agreement. Mr. Hunt said that although no letter of agreement existed, there had been a long-standing practice of exempt bidding and it could continue.  Sgt. Jackson filed a grievance on July 26, 1999, charging that the exempt bidding process at the institution was in violation of the collective bargaining agreement and the 1995 letter of agreement.  The violation of the letter of agreement was alleged to be violated by the exempt bidding process because the Minimum Facility was changed to an exempt post where employees were accepted and put on a short list of seniority, meaning only certain employees who were accepted were able to bid at that facility. The Minimum Facility was removed from the general bid and separated from it.

Under exempt bidding Sgt. Jackson did not have full opportunity to bid on shifts and days  off as he would have had under general bidding.

After Sgt. Jackson filed the grievance, the Union processed it through steps 2, 3 and 4 of the grievance procedure.  The Employer did not respond at any of the steps.  On May 16, 2000, Mark Hunt wrote a letter to Gary Lewis saying the Employer would challenge the arbitrability of Sgt. Jackson’s grievance because arbitration was not requested in a timely fashion.  On September 15, 2000, Gary Lewis, Union representative for AFSCME, sent Mark Hunt a memorandum detailing the status of a number of pending arbitrations that Mr. Lewis had with the Employer, including the grievance at issue here.  Mr. Lewis also met with Mr. Hunt a number of other times prior to September 15.  At no time did Mr. Hunt say he would contest the arbitrability of grievances.  Neither the Union nor the Employer attempted to set up a meeting pursuant to Step 4 of the grievance procedure.

SUMMARY OF THE POSITION OF THE UNION

On the merits, the Union contends that the Employer violated Article 25 of the agreement and the 1995 letter of agreement.  It also contends the initial filing of the grievance was timely, as was the request for arbitration.

As to the timeliness of the initial filing, the Union maintains that the Employer’s failure to raise the issue before the arbitration hearing prevents it from doing so now.  Moreover, the Union argues, even if the timeliness issue had been properly raised, the grievance must be viewed as timely filed.  Sgt. Jackson had recently become president of the local and only discovered the Employer was violating the contract on June 28, 1999 when management finally conceded there was no recent letter of agreement that modified the language of the contract.

The request for arbitration was timely the Union contends.  The Union filed the grievance at Step 4 on November 23, 1999.  According to Arbitrator Snow’s  interpretation of Article 51 of the contract, both sides where responsible for scheduling a meeting within thirty days.  A request for arbitration must be made within thirty days of the meeting.  The parties did not meet until February 1, 2000.  The Union’s February 17^th request fell within the time lines.

The Union asserts that three arbitrators have recently ruled that the grievance procedure in question here does not create the kind of forfeiture urged by the Employer.  Arbitrator Snow held that when both parties take liberty with contractual time lines, it would be unfair to punish only one for failure to comply strictly.  The Employer made no response at levels 2, 3, and 4.  Arbitrator Dorsey ruled that the Employer had a practice of waiving compliance and had, therefore, not strictly complied with the contract in its handling of grievances.  The Union, in that case, could not be fairly held to strict compliance.  The grievance Arbitrator Dorsey ruled on was being processed at the same time as the grievance here  and they both were contained in the May 16, 2000 letter from Mr. Hunt to Mr. Lewis wherein Mr. Hunt challenged the arbitrability of each.  Any delay in proceeding to arbitration in the present case was the result of a mutual agreement to discuss the grievance and reach a resolution about the arbitration.

On the merits, the Union maintains that shifts and days-off bidding had been done in the past by using one seniority list for each rank.  Under the changed system, an employee had to first decide whether to apply for one of the special units.  If accepted into one of those units, the employee was placed on a seniority list that contained only the names of other employees who had been accepted into that unit.  Such a system serves to the advantage of some employees who have less seniority, and it hurts some employees with more seniority.  That system violates the contract and past practice because bidding is no longer based solely on overall seniority, a situation that was not contemplated by the contract.  The Employer also violated the contract when it changed the rotation dates from August to July.  While that may have been a desirable change, there was no reason it could not have been bargained with the Union.

To the Employer’s argument that as long as bidding is by seniority, it may make any changes it desires to the process, the Union argues that the Employer has recently acquired that opinion.  Prior to its failure to find a written document permitting it to engage in exempt bidding, the Employer believed it required bargaining with the Union before exempt bidding could be done.  The Employer did not then assert it had the unilateral right to change the bidding process.  That fact is evidenced, the Union believes, by the fact the Employer reverted to the practice of bidding by seniority once the Union protested.  Moreover, the Union asserts, there is a 1995 letter of agreement for bidding the Minimum Facility which is evidence that the Employer believed a modification of the contract was required before it could change the bidding process.  If such a small change in the bidding process required a letter of agreement, a broad change that changed bidding from strictly a seniority process requires as much.  The Union’s  view is that the parties had a long-standing past practice of using one seniority list.  That practice was changed for a short time, but it was dropped when the Union objected.

As the Union views it, the Employer also violated the 1995 letter of agreement that allowed the Employer to specify which shifts and days-off would be assigned to the Minimum Facility.  It did not, however, change the basic process of bidding by seniority.  While the letter permitted a convenient arrangement for employees to get into a Minimum Facility post, the employee could, while bidding, change his mind if he found the available shifts and days off in the Minimum Facility to be unacceptable.  The Employer’s change to exempt bidding took away that option.

SUMMARY OF THE POSITION OF THE EMPLOYER

The Employer contends the grievance was not timely filed.  On the merits, the Employer argues that exempt bidding was the long-standing practice at the institution, therefore, the Employer did not need the Union’s approval to continue it for the July 1999 bid.  In any event, the Union agreed to exempt bidding and cannot now claim that the Employer cannot rely on its verbal agreement.

The Union, according to the Employer’s reasoning, asserts estoppel in trying to preserve the timeliness of the grievance and then tries to use estoppel to prevent the Employer from relying on its oral agreement with the Union to continue exempt bidding.  The Union claims that management misled Sgt. Jackson by telling him a written letter of agreement existed that permitted exempt bidding.  Exempt bidding continued from at least 1994 through 1995.  The parties verbally agreed in 1998 to continue exempt bidding and the Union’s representative was to reduce the agreement to writing.  He failed to do so.  The Employer argues further that despite contract language requiring all variances to it be in writing and executed by authorized representatives of each side, management of the institution and representatives of the local Union had in the past negotiated changes in working conditions based on verbal agreements.  While Sgt. Jackson may not have liked such informality, he cannot change it without giving the Employer adequate notice.

The position of the Employer is that exempt bidding existed at the institution since at least 1994.  When negotiating the 1994-1999 contract, the parties did not discuss prohibiting exempt bidding.  The contract expressly retained existing practices related to mandatory bargaining subjects unless modified or deleted elsewhere in the agreement.

Before Sgt. Jackson became president of the local Union, the parties rarely insisted on strict adherence to Article 1, section 1 of the contract, they operated very informally with “handshake deals” being the norm.  One of those informal deals was the one that occurred in March of 1998, when the parties agreed to continue exempt bidding for separate housing units.  The Union was supposed to reduce the agreement to writing.  Management continued to do exempt bidding based on the verbal agreement.  It was not until June 28, 1999, that anyone from the Union complained about the process.

The Employer maintains that the contract has strict time lines for filing grievances.  Written grievances must be submitted within thirty days of the alleged  occurrence.  Exempt bidding was the normal practice when Sgt. Jackson came to the institution in 1997 and it continued through the 1999 bid.  Sgt. Jackson was aware of the process  before 1999 because he bid his shift and days off since 1997.  Sgt. Jackson’s testimony regarding his delay in filing a grievance is suspect.  The better evidence is that the Union was responsible for drafting the letter of agreement that Sgt. Jackson said he believed existed.  It was not the Employer who mislead him and he should not be able to rely on that proposition.  The Employer preserved the issue of arbitrability when Mark Hunt notified Gary Lewis that Sgt. Jackson’s grievance was not timely filed.

As the Employer views it, exempt bidding does not violate the contract.  Under the management rights provision of the contract, the Employer retains broad discretion to determine the methods, means, and personnel by which its operations are run, except as modified by the contract.  Article 25 imposes few restrictions on the shift-bidding process itself, none of which is inconsistent with exempt bidding.  The Employer was not required to obtain the Union’s consent to continue exempt bidding.  Moreover, the Employer argues, the Union failed to show any concrete harm caused by the exempt bidding.

The 1995 letter of agreement was not violated by the continuation of exempt bidding, the Employer maintains.  Since the parties did not intend for it to change the bid process, exempt bidding could not constitute a violation.

The parties had an oral agreement that allowed exempt bidding and the Union is estopped from denying it, the Employer holds.  Even if the contract required the Union’s consent to continue exempt bidding, the Employer obtained that consent through the “handshake” agreement the parties reached.  Although Article 1, section 4 requires that contract modification be in writing, the parties repeatedly modified the contract without reducing anything to writing.  Given the informality with which the Employer had dealt with the local Union in the past, the Employer justifiably relied on the oral agreement to continue exempt bidding.  The Union knew of, and acquiesced in the process for years.  The Union was required to give the Employer notice of its intent to change the practices before it filed its grievance.

The Employer contends the arbitrator lacks authority to award the relief requested by the Union.  The arbitrator has no authority to compel the Employer to reach agreement with the Union on exempt bidding.  The only potential remedy is a cease and desists order, which is moot because the Employer discontinued exempt bidding when the Union objected.

OPINION

The Employer argues that the initial filing of the grievance was untimely and therefore, it is not arbitratible.  The contract requires that written grievances be submitted to the unit manager within thirty days of the alleged occurrence.  There is a dispute between the parties over when Sgt. Jackson knew the Employer was conducting the shifts and days-off bidding process contrary to what he believed the contract required.  Prior to the time he became interim president of the local Union, it is not clear when he knew or should have known about the exempt bidding process.  After he became president, however, it is clear he found out that the Employer had been conducting exempt bidding without there being a written agreement permitting it to do so on June 28, 1999, at the union/management meeting.  Until that time he had been told by numerous individuals from both sides that a letter of agreement existed that allowed exempt bidding to be done by the Employer.  Since he filed the grievance on July 26, 1999, the 30-day time line had not expired.

Even if it could be reasonably concluded that Sgt. Jackson knew or should have known about the Employer’s practice of conducting exempt bidding from the time he began his employment at the institution, the Employer’s argument that the grievance was not timely flied must be rejected.  The Employer remained silent at all the steps in the grievance process and did not challenge the timeliness of the filing.  At step four, Mark Hunt informed the Union that the Employer would challenge any request for arbitration, but that challenge was pursuant to Article 51, section 2, step 4 and section 6, of the contract.  The challenge was not,  even at that late date, to the original filing pursuant to step 2 of the grievance procedure.  The general rule is that if the party that challenges the arbitrability of a grievance does not do so at the start of the process, the party is held to have waived its right to challenge.

The Employer offered evidence, in the form of a letter dated May 16, 2000, from Mark Hunt to Gary Lewis, to show that the Union did not request arbitration in a timely manner pursuant to step four of the grievance procedure.  The Union filed at step four on November 23, 1999.  At that step, the contract requires that a meeting be held between the parties to share information about the grievance.  The contract does not state who has the responsibility for scheduling the meeting.  Arbitrator Snow in, State of Oregon and AFSCME Local 3940, June 2000, held that it is reasonable to conclude that the responsibility for scheduling the meeting fell on both parties.  He concluded further that since both parties failed to follow through, it would not be reasonable to work a forfeiture on either.

On the merits, both parties argue that principles of past practice support their respective positions.  The Employer contends the practice of preparing and using separate bidding sheets for each of the special housing units has been done since at least 1994, and the Union acquiesced in the practice until Sgt. Jackson protested in June of 1999.  Prior to that time, the Union did not object to the manner in which the bidding process was conducted.  The Employer notes that the parties even agreed to formally modify the collective bargaining agreement in 1998, when they verbally agreed to draft a letter of agreement.  The letter was never drafted and executed.

The Union maintains there was a long-standing practice of conducting the bidding strictly based on seniority as the contract contemplates, that is to say, with one master seniority list.  The Union acknowledges there was an exception to that practice in 1998.  Both acknowledge that the 1995 letter of agreement made significant exceptions to the contractually required bidding procedure.

The Employer called two witnesses who testified that the  practice of exempt-bidding had existed at the institution since 1994.  No documentary evidence was offered to substantiate that testimony.

The Employer’s evidence and argument on the question of the exempt bidding practice is more persuasive than that of the Union.  The Employer’s witnesses were working at the institution at the time of the occurrences and had personal knowledge of how the bidding was conduced.  The Union did not call its former representative, who was present at the time in question, to rebut the Employer’s witnesses’ testimony.

Concluding however, that the Employer had a practice of exempt bidding as far back as 1994, is not where the analysis ends.  The meaning of Article 25, section 10 of the contract is clear and unambiguous.  It is not necessary to go outside the contract to ascertain the meaning of that provision.  In addition to imposing other conditions on management’s ability to conduct the shift-bidding process, the provision gives officers who have completed trial service the right to bid shifts and days off in order of seniority.  Seniority is defined elsewhere in the contract as  time in class in the bargaining unit.  When bidding is conducted by exempting the special housing units, it violates the provision because bidding is no longer based solely on seniority in the  bargaining unit.  It is based on the special housing unit and the seniority of the employee bidding as compared to others bidding for that unit.  The exempt method of bidding requires employees to commit to which unit they will work in before seeing what shifts and days off are available in that unit.  Under the exempt method, some employees in the bargaining unit are not permitted to exercise their seniority in the overall bargaining unit to the fullest extent possible.  Using more than one seniority list allows some employees to bid out of seniority sequence.

Exempt bidding also violated the 1995 letter of agreement because employees were accepted and put on a short list of seniority, only certain employees who were accepted were able to bid at the Minimum Facility.  The letter of the agreement did not change the basic principle that bidding be by overall seniority.

While past practice cannot be used to change the clear meaning of contract language, particularly when the practice is not of such a long-standing nature as to have spanned a number of collective bargaining negotiations and agreements, it can be used to determine the appropriate remedy.  Moreover, the general rule regarding past practices where the contract contains a zipper clause, as here, is that the practice cannot be used to change contract language when such language is clear and unambiguous.