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Title: QWest Corporation and Communications Workers of America, Local 7777
Date: July 25, 2001
Arbitrator: Eric Lindauer
Citation: 2001 NAC 119

IN THE MATTER OF THE INTEREST ARBITRATION

   BETWEEN

 

COMMUNICATION WORKERS OF        ) OPINION AND ORDER

AMERICA, LOCAL 7777                          )
                                                        
                                                      UNION,   )                      Re: Grievance of

          )                      Michelle Noctor - -
Awards
Grievance

and                                                    ) CWA # 7-00-05

QWEST CORPORATION, f/k/a                ) FMCS # 223-06392-7

US WEST COMMUNICATIONS, INC.     )

                                              EMPLOYER. )  

                                      

 

    BEFORE

    ERIC B. LINDAUER

     ARBITRATOR

                                        

 

              July 25, 2001

 

REPRESENTATION

FOR THE UNION:                                                                    FOR THE EMPLOYER:

Stanley M. Gosch                                                                                     Emily Keimig
RICHARD ROSENBLATT & ASSOC.                                 SHERMAN & HOWARD
8085 E. Prentice Avenue                                                 633 17th Street, Suite 3000
Englewood, CO 80111                                                                    Denver, CO 80202


NATURE OF PROCEEDING

This is a contract interpretation case. The Communication Workers of American, Local 7777 (hereinafter the “Union”) and Qwest Corporation, fka, US West Communications, Inc., (hereinafter the “Employer” or the “Company”) are parties to a Collective Bargaining Agreement (hereinafter the “Agreement”) which provides that any disputes over the interpretation of the terms of the Agreement, not resolved through the grievance procedure, be submitted to arbitration.  The Union filed this grievance contending that the Company violated the Awards Program provisions of the Agreement when it denied an award to a sales consultant. The Company denied the grievance and the issue was submitted to arbitration. The arbitration hearing in this matter was held on April 26, 2001 in Denver, Colorado.  The Union was represented by its counsel, Stanley M. Gosch and the Company was represented by its counsel, Emily Keimig. At the arbitration hearing the parties stipulated the matter was properly before the Arbitrator.  During the course of the hearing, each party had an opportunity to make opening statements, introduce exhibits, and examine and cross-examine witnesses on all matters relevant to the issue in dispute. At the conclusion of the hearing, the parties waived oral argument and agreed to submit post-hearing briefs. Upon receipt of the post-hearing briefs, the hearing record was closed and the Arbitrator took the matter under advisement.


STATEMENT OF THE ISSUE

At the commencement of the hearing, the parties stipulated that the issue to be resolved in this arbitration is as follows:

Did the Company violate Article 24 of the Labor Agreement when it denied an award to Michelle Noctor on or about February 19, 1999? If so, what is the appropriate remedy?

RELEVANT CONTRACTUAL PROVISIONS

In the opinion of the Arbitrator, the following provisions of the parties' Agreement are relevant to determining the issue in dispute:

ARTICLE 16 - GRIEVANCE AND ARBITRATION PROCESS

* * *

Section 16.16     The decision of the arbitrator shall be final and binding on both parties, and the Company and the Union agree to abide by such decision.

 

Section 16.17     The arbitrator shall have no authority to change, add to or subtract from the terms of this Agreement.

* * *

Section 16.19     Each party shall pay for the expenses of its own witnesses.  The expense of the arbitrator or neutral third party and the general expenses of arbitration shall be borne equally by the Company and the Union.

* * *


ARTICLE 24 - AWARD PROGRAMS

Section 24.1     The Company and the Union mutually recognize and agree that changes in the telecommunications industry and the Company’s position in that industry necessitate all possible efforts to expand and strengthen the Company’s marketing capabilities.  To that end, the Company and the Union agree that individual and team contributions to the Company’s marketing efforts may be recognized and rewarded through Award Programs, subject to the following provisions:

(1)         The Programs will be used with those employees who, in their regular job activities, have an opportunity to directly contribute to the Company’s revenues or to positively and directly affect the perception of the Company in the marketplace.

(2)         Prior to the commencement of each Award Program, the Company will discuss the nature of the Program with the Union either through an established Labor-Management Forum or with a CWA Bargaining Agent.

(3)         All such Programs will be fairly and equitably designed, implemented and administered.

(4)         The current process of Union involvement will be continued for the life of the agreement.

DEFINITIONS

Discuss     The Company will offer the Union the opportunity to review pertinent data and openly discuss questions or concerns.  The company will consider and respond, as appropriate, to matters raised by the Union.


STIPULATIONS OF FACT

At the commencement of the hearing, the parties entered into the following stipulations of fact:

1.              That the disciplinary action taken against Ms. Noctor is not an issue in this arbitration.

2.              That the Company was notified through the EEO and Security Department of the email that was sent by Ms. Noctor on February 1, 1999.

3.              That the date of discipline was February 17, 1999, not February 16, 1999, and that the date planned for the actual award to Ms. Noctor was February 17, 1999.

  SUMMARY OF FACTS

1.     Background

Qwest, formerly US West, provides telecommunication services to commercial and residential customers located in fourteen western states. The Company employs sales consultants who are responsible for selling the Company’s services and products. These employees are represented by the Communication Workers of America and their rights, benefits and responsibilities are set forth in the parties’ Labor Agreement. The Company hired Ms. Noctor as a Sales Consultant in June 1998. As a Sales Consultant, Ms. Noctor was assigned the responsibility of selling products and services to residential customers.

2.   The Awards Program


Article 24 of the Labor Agreement governs the Company’s Awards Program. The Awards Program has been implemented by the Company to provide incentives for Sales Consultants to sell the Company’s products and services. In addition to a base monthly salary and commissions earned on sales, Sales Consultants are encouraged to participate in Awards Programs offered by the Company as an incentive for employees to increase sales. Awards are given to those employees who meet or exceed certain sales quotas which are established by the Company at different time periods throughout the year. The Awards Programs, by virtue of Article 24.1(d) of the Agreement, are established with the joint cooperation and approval of the Union. Article 24.1(c) of the Awards Program provision provides that the Company must fairly and equitably administer the program. Although not set forth in the Agreement, it has been the longstanding policy of the Company that employees must meet certain eligibility requirements in order to qualify to receive the sales awards. Specifically, employees must have a satisfactory record of performance, and be in compliance with the Code of Conduct and attendance requirements at the time the award is delivered to the employee.

3.   The 4th Quarter Car Award

During the fourth quarter of 1998 the Company posted and distributed a flyer advertising a contest to win a new Chevy Blazer.  This was part of the Company’s “4th Quarter Car” promotion. The flyer read as follows:


Consumer 4th Quarter Cars

    1999 Chevy Blazer

Car qualifications:

125% of NSR and 150% of WRAP

 · For every 3 net US WEST Advanced PCS receive 1 entry

 · For every 5 net Call Waiting receive 1 entry

 · For every 5 net Additional Lines receive 1 entry

 · For every 3 net US WEST.net receive 1 entry

 · For every 5 net Voice Messaging receive 1 entry

NSR and WRAP are thresholds that must be obtained prior to receiving entries. Both thresholds must be met each of the months, then you will receive the above products only. There are no entries given for NSR or WRAP. If you make NSR and don’t make WRAP, you do not qualify for entries that month.
   
                                                                                         (Un. Exh. 1).

Ms. Noctor testified that NSR denotes the monthly revenue quota and WRAP denotes monthly product quota, for Sales Consultants. Therefore, in order to receive contest entries, the Sales Consultants were required to generate 125% of their NSR and 150% of their WRAP. Each time these sales thresholds were met, the Company automatically entered the Sales Consultant in the contest for each additional sale as specified in the contest flyer.  


On January 15, 1999, the Company’s Phoenix office, which administers the Awards Program, informed Petra McKnight, the Company’s Revenue Supply Specialist for the Consumer Markets Division in Denver, that Ms. Noctor’s name had been chosen as the 4th Quarter Car contest winner. On January 18, 1999, McKnight informed Cesear DeLeon, Ms. Noctor’s immediate supervisor, that Ms. Noctor had been chosen as the contest winner. DeLeon confirmed that Ms. Noctor had a satisfactory performance record and was in compliance with attendance and Code of Conduct requirements. On February 10, McKnight advised Pam Landry, Director of the Consumer Markets division, that Ms. Noctor had won the Blazer and that the Company would give her the car on February 17, 1999.

Michelle, as a result of your efforts, congratulations on winning a brand new Chevy Blazer!  This is our way of saying thank you for a job well done.

(Un. Exh. 3)

The Company then purchased the Chevy Blazer from a local dealer and began planning the ceremony for awarding the car to Ms. Noctor.

On February 12, 1999, the Security department notified Jim Croft, the Regional Sales Manager over the Denver Sales Consultants, that Ms. Noctor was under investigation for forwarding an email, containing inappropriate language, to a Company manager. Apparently Ms. Noctor had forwarded the email to the manager accidentally; she intended to send it to another employee. Nevertheless, the language in the email offended the manager and he complained to the Company’s internal Equal Employment Opportunity (EEO) group. Upon receiving notice of the EEO investigation, Jim Croft immediately notified Pam Landry.

4.     EEO Investigation


On February 17, 1999, Ms. Noctor’s supervisor, Cesear DeLeon, asked her to accompany him to another building where the Security Department questioned Ms. Noctor about the offensive email she had sent. Ms. Noctor acknowledged sending the email and explained how she intended to send it to a fellow employee who would have appreciated the email but, by mistake, it was sent to another manager whom she did not know. On the basis of Ms. Noctor’s acknowledgment, the Company issued her a Written Warning of Dismissal for her conduct. (Emp. Exh. 1). The parties agree that the discipline issued to Ms. Noctor for this conduct is not at issue here.

After Ms. Noctor signed the warning, Croft informed her that she had been selected as the contest winner, but as a result of her conduct, she would no longer be eligible to receive the Blazer. Consequently, the Company awarded the Blazer to another randomly selected, qualifying employee.

Thereafter, the Union filed this grievance on February 25, 1999, claiming the Company had unfairly implemented and administered the award, in violation of Article 24 of the Agreement. The parties were unable to resolve the grievance through the grievance procedure and the matter was submitted to arbitration. 

CONTENTIONS OF THE PARTIES

The Company:


It is the position of the Company that they did not violate Article 24 of the Labor Agreement when they denied Ms. Noctor’s award after informing her she had won the contest, thus, the grievance should be denied. In support of this contention the Company advances the following arguments:

First, the Union failed to prove that the Company violated the Agreement by requiring employees to comply with the Company’s Code of Conduct in order to be eligible for the awards program. Simply failing to include the condition on a contest flyer is not enough to support the Union’s contention that they were not notified of the condition. In fact, the Union approved the condition requiring compliance with the Code of Conduct as a condition precedent to all awards programs.

Second, the language in the Agreement is clear and unambiguous. It clearly does not vest a right in the employees to receive awards. Therefore the Company has discretion to administer or deny the awards program in a fair and equitable manner.

Third, the Company has a long-standing practice of requiring employees to comply with the Company’s Code of Conduct to be eligible to receive an award. Furthermore, it is consistent with Company practice to revoke an award, even after notification to potential award recipients, when the employee falls out of compliance with the Code of Conduct.

Finally, the awards program is not a contract with the employee, therefore, Ms. Noctor had no “right” to the award. Thus, revocation of the award does not amount to breach of contract.


For all these reasons the Company contends that they did not violate Article 24 of the Agreement and the Union’s grievance should be denied.

The Union:

It is the position of the Union that the Company violated Article 24 of the Agreement when it refused to award the Chevy Blazer to Ms. Noctor after they had notified her that she had won the contest. In support of this contention, the Union submits the following arguments.

First, Ms. Noctor entered an enforceable contract with the Company when she satisfied all the requirements for entry into the contest. The Company then breached the contract when they failed to award the Blazer to Ms. Noctor after notifying her that she had won. The breach of contract violated Article 24 of the Agreement.


Second, the Company failed to administer the contest fairly and equitably in several ways. First, the letter advising Ms. Noctor that she had won the Blazer constituted delivery of the award which the Company unfairly revoked. Second, they changed the terms of the contest by requiring compliance with the Code of Conduct when the original flyer, announcing the 4th Quarter Car contest, failed to indicate that eligibility was conditioned upon satisfactory performance, and compliance with attendance, and Code of Conduct standards. Third, even if these conditions are justified, Ms. Noctor maintained satisfactory status under the Code of Conduct until the close of the contest because the alleged violation happened after the contest was closed and after the Company had selected Ms. Noctor as the winner. Fourth, the Company unfairly disqualified Ms. Noctor after they had already notified her of winning.

Finally, the Company’s past practice under “The President’s Club” is not applicable to the 4th Quarter Car contest.  The President’s Award requires compliance with the Code of Conduct, the quarterly award to Ms. Noctor did not.

For all these reasons the Union requests the grievance be sustained and that Ms. Noctor be awarded a new Chevy Blazer or the equivalent in cash.

   OPINION

Article 24.1(c) of the Awards Program provision in the Agreement provides that, “All such Programs will be fairly and equitably designed, implemented and administered.” The crux of this case is whether the Company’s removal of the award of the Chevy Blazer to Ms. Noctor, after notification, but before delivery, amounted to unfair or inequitable administration of the Awards Program.


After reviewing the controlling language of the Agreement, the evidence submitted at the hearing, and having considered the arguments of the parties as set forth in the post-hearing briefs, the Arbitrator concludes that the Company did not violate the Agreement in denying Ms. Noctor the Chevy Blazer. The Arbitrator has reached this decision based on an analysis of each of the four principle contentions advanced by the Union. First, whether there was an enforceable contract between the Company and Ms. Noctor. Second, whether the Company properly applied the eligibility requirements for the Quarterly Car contest. Third, whether the letter of notification that Ms. Noctor received announcing that she had won the Quarterly Car contest constituted receipt of the award. Finally, whether the Company administered the Awards Program, under the circumstance in Ms. Noctor’s case, in a fair and equitable manner as required by the Labor Agreement.

I.   THE BREACH OF CONTRACT CLAIM IS NOT WITHIN THE SCOPE OF THIS ARBITRATION


During the fourth quarter of 1998, the Company distributed a flyer advertising the 4th Quarter Car contest. The flyer provided the requirements for receiving entries into the contest. (Un. Exh. 1)(Emp. Exh. 2). The Union claims this was an offer to enter a contract, which Ms. Noctor accepted. Thus, a binding contract was formed and the Company subsequently breached that contract when they revoked the award after notifying Ms. Noctor that she had won the 4th Quarter Car contest. The Union contends Ms. Noctor entered an enforceable contract with the Company when she satisfied all the requirements for entry into the 4th Quarter Car contest. Ms. Noctor accepted the offer by satisfying all the requirements when she fulfilled the sales quotas as specified on the flyer. Then the Company automatically entered her name in the 4th Quarter Car Program and, subsequently, notified her that she had won the new Blazer. Later the same day, the Company revoked the award because of a disciplinary incident, and refused to deliver the award. The Union asserts this constituted breach of contract, resulting in unfair and inequitable administration of the 4th Quarter Car Program by the Company.

The Company argues arbitration is not the proper forum to address a breach of contract claim. The Agreement does not encompass an individual breach of contract claim such as the one presented by the Union. The Company asserts the court, not the Arbitrator, has exclusive jurisdiction over individual breach of contract claims and that the Arbitrator is restricted to resolving issues arising out of the scope of the Labor Agreement.

In response, the Union contends the Arbitrator can decide the breach of contract issue because it is pertinent to whether or not the Company fairly and equitably administered the 4th Quarter Car Program. Furthermore, the Agreement does not limit the Arbitrator’s consideration of external law. In support of this contention the Union cites Elkouri and Elkouri as authority:


  Unless the parties specifically limit the powers of the arbitrator in deciding various aspects of the issue submitted to him, it is often presumed that they intended to make him the final judge on any questions which arise in the disposition of the issue, including not only questions of fact but also questions of contract interpretation, rules of interpretation and questions, if any, with respect to substantive law.

Elkouri and Elkouri

How Arbitration Works

366 (4th ed. 1985)

The Union’s contention is misapplied in this case. The key wording in the authority cited above is that the Arbitrator may decide questions of substantive law while “... deciding various aspects of the issue submitted to him ...” The Union’s breach of contract claim is outside the scope of the issue to be decided in this Arbitration. The Union’s claim is framed in terms of a breach of contract, which falls within the civil jurisdiction of the courts, not under the Arbitrator’s authority to determine whether there has been a violation of the terms of the Labor Agreement. As stipulated by the parties, the issue to be determined in this proceeding is whether there was a contractual violation of the Agreement, not whether Ms. Noctor is entitled to civil damages for the breach of an individual contract with the Company.

Thus, the Arbitrator may apply substantive law to the issue of whether or not the Company violated the Agreement. However, the Union’s breach of contract claim is a separate and distinct issue that is outside the scope of this arbitration. Therefore, the Arbitrator concludes that this is not the proper forum for resolution of that issue and shall make no ruling on Ms. Noctor’s contract claim.


II.  THE COMPANY PROPERLY APPLIED THE ELIGIBILITY REQUIREMENTS OF THE 4TH QUARTER CAR PROGRAM

It is the position of the Union that the flyers distributed to employees announcing the 4th Quarter Car contest did not include the condition requiring compliance with the Code of Conduct. (Un. Exh. 1). The evidence submitted on this issue is confusing. The Code of Conduct condition is not stated on the flyer produced by the Union, but it is stated on the flyer produced by the Company. (Un. Exh. 1) (Emp. Exh. 2). The Union implies this Code of Conduct condition was added to the 4th Quarter Car contest flyer after Ms. Noctor’s award had been rescinded. Cindy Scrivens, the Union’s Area Representative, testified there was no mention in the second posting of the flyer that the employee “must be satisfactory in CIP, attendance and Code of Conduct.”  Although there is a definite discrepancy between Union 1, which does not include the requirement and Employer 2, which does; this discrepancy is easily resolved.

The Company notified the Union of all eligibility requirements for all Awards Programs in a January 5, 1998 Memo. The Union approved these rules prior to the Company’s implementation of the 4th Quarter Car contest. The fact that some of the flyers for the 4th Quarter Car contest may not have included all conditions and requirements is not determinative of the issue of notice. The Union had knowledge of all eligibility requirements for the contest before it was implemented. The presence or absence of the qualifying language is not controlling for the following reason. 


The Union clearly was on notice that before an award is to be actually delivered, the employee must have established a satisfactory performance record of employment and meet the Company’s Code of Conduct and attendance standards. This condition precedent to an employee’s receipt of an award, was clearly established in a notice that was sent to the Union announcing the January-April 1999 awards programs, which included the “Quarterly Car” award, along with other promotions. Included in the announcement was the following statement:

  Before an award is given, it is verified that the employee has satisfactory performance, meets Code of Conduct and attendance standards.

(Emp. Exh. 3)

This was a condition agreed to by the Union as a requirement for eligibility of an employee to receive Company awards, including the Quarterly Car award.


The same information is also discussed in the training program for new employees. Although Ms. Noctor does not recall the eligibility issue being discussed, she does recall a discussion regarding the Awards Program during her training. Jean Troxel, Product manager, testified that she conducted the training for the Grievant. She further testified that in the training she would have discussed the programs and prizes which included notice to the employees that they had to be satisfactory employees at the time of the award. This meant compliance with the Code of Conduct and attendance as well as maintaining a satisfactory job performance rating. As an example, Troxel cited an employee who was denied a $7,000 cash award because of noncompliance with the attendance requirement.

As a matter of Arbitral principle, past practice may be used to fill in gaps where the Agreement is not specific.

It has been recognized that established practice may be used, not to set aside contract language, but to fill in the contact’s gaps. Rights or benefits that are defined generally or that do not specify the consequences of a violation may be given specific application by reference to past practice.

Elkouri and Elkouri,

How Arbitration Works,

(5th ed 1997), p. 654


Such is the case here. The Agreement simply requires that the Awards programs “be fairly and equitably designed, implemented and administered.” The Company has a well-established practice of applying the conditions for eligibility in Awards Programs. The evidence produced by the Company indicates that all Awards Programs require compliance with the performance, attendance policy and Code of Conduct standards. Several of the Company’s other promotions imposed the exact same condition including, “Take the Reign” (Emp. Exh. 4), “Consumer Channels” (Emp. Exh. 5), “Go Underground Campaign” (Emp. Exh. 6), “The Incredible Integration Creation” (Emp. Exh. 7), “Momentum To The Millennium” (Un. Exh. 4), “Rules of the Road” (Un. Exh. 5), and “Ski The Sales Slope to Vail 99" (Un. Exh. 6). Moreover, other potential award recipients have had their prizes revoked for falling out of compliance with these conditions after having been notified that they had won the award. 

On the basis of this record, the Arbitrator concludes that Ms. Noctor, and Sales Consultants in general, were on clear notice that in order to receive an award they had to be in compliance with the Company’s condition of satisfactory performance, attendance and Code of Conduct requirements.  The evidence further established that the Company, as a matter of consistent past practice, has required that in order to qualify for an award employees must be in compliance at the time the award is delivered.  There is no dispute in this case that Ms. Noctor, on February 17, 1999, was not in compliance with this condition by virtue of the Written Warning of Dismissal that she had received on February 17, 1999, for violation of the Company’s sexual harassment policy.

Accordingly, the Company, in denying Ms. Noctor’s award, properly applied the eligibility requirements in their administration of the Awards Programs.

III. THE LETTER OF NOTIFICATION DID NOT CONSTITUTE RECEIPT OF THE AWARD


The Company notified Ms. Noctor that she had won the contest on the day she was to receive the Award. They sent a letter congratulating her on winning the contest and announcing that she had won a “brand new Chevy Blazer.” (Un. Exh. 3). Within hours of receiving the letter, Ms. Noctor was further notified that she had violated the Code of Conduct and was, therefore, disqualified from the 4th Quarter Car contest. Consequently, in accordance with past practice which establishes that an award may be revoked at any time up to the time of actual delivery, the Company denied her the award.

The Union contends that Ms. Noctor “received” the Award upon notification that she won the 4th Quarter Car Award, and thus, the Company was estopped from revoking the award. However, the Company asserts it is consistent with past practice to revoke an award anytime before actual receipt of the award. To establish the pattern of past practice, the Company points to the President’s Club. The Union claims that the Company’s practice under the President’s Club does not permit the same practices under the 4th Quarter Car contest. They argue that the rules concerning the President’s Club explicitly state that employees must maintain satisfactory Code of Conduct, whereas those terms do not exist for the 4th Quarter Car contest.

This argument must fail. The facts simply do not support this contention. As stated above, the Union agreed the condition regarding the Code of Conduct applied to all award programs. This fact is evidenced in the memo dated January 5, 1998. (Emp. Exh. 3).

Therefore, all promotions and contests fall under the Awards Program, whether the prize is a dollar, a new car, or President’s Club privileges. The Company has uniformly applied the policy that awards may be revoked up to the time the award is given. Thus, this policy applies to the 4th Quarter Car contest.


The Union also argues that the Company’s past practice fails to establish a “practice of withdrawing prizes, as opposed to invitations to events.” (Union Post-hearing Brief p.19). They allege the practices are not established clearly enough or “readily ascertainable over a reasonable period of time as a fixed, and established practice accepted by both parties.” (Union Post-hearing Brief p. 19-20). Once again, this argument lacks factual support. Company witnesses, Troxel, McKnight, Rogers, Croft, and Graves all testified that President’s Club award recipients have had their awards rescinded, as a result of noncompliance with the Code of Conduct, after notification that they received the award. When an employee is awarded airline tickets to attend the President’s Club retreat, the Company gives the employee the tickets prior to the trip. In cases where the employee has violated the Code of Conduct after being notified but before the actual trip, the Company has recovered the tickets from the employee.


In the opinion of the Arbitrator, the Company has a clear and established practice in the administration of their awards programs; the potential recipient must retain a satisfactory status under the Code of Conduct until the actual prize changes hands, and if the recipient falls out of compliance any time before actual delivery, the Company may revoke the prize. Therefore, the Arbitrator concludes that notification of winning the contest did not constitute receipt of the award such that the Company no longer retained the right to revoke the award upon notification of an employee’s noncompliance with contest rules.

IV. THE COMPANY ADMINISTERED THE 4th QUARTER CAR CONTEST 

IN A FAIR AND EQUITABLE MANNER   

The Company implemented, administered, and conducted the 4th Quarter Car contest in a manner consistent with patterns of past practice. As discussed above and established by the evidence, the Company uniformly requires compliance with the Code of Conduct, up to the time of the actual award, in order for employees to be eligible to receive the award. The Company applied this policy in the 1998 4th Quarter Car contest. On February 17, 1999, Ms. Noctor received a Written Warning, in violation of the Code of Conduct. In accordance with the policy, the Company denied her award.

Contrary to the Union’s argument, Ms. Noctor did not have a contractual right to receive the award. The award was a gift and an incentive from the Company. As such, the Company holds a wide range of discretion in administering these awards. The Company can, and has, imposed reasonable eligibility requirements for all awards whether they be cash prizes, the President’s Club or a new car. Also, pursuant to the Agreement, the Union approved the eligibility requirements before they were implemented. Therefore, the Company conducted, implemented and administered the 4th Quarter Car contest in a fair and equitable manner as required by the Agreement.

CONCLUSION


It is the conclusion of the Arbitrator that the Company implemented and administered the 4th Quarter Car Program in a fair and equitable manner. The Arbitrator has reached this conclusion based on an analysis of each of the four primary contentions advanced by the Union. First, the Union’s contention that there was an enforceable contract between the Company and Ms. Noctor is an issue not embraced by the Labor Agreement and is, therefore, not decided in this proceeding. Second, the Company properly applied the eligibility requirements for the 4th Quarter Car contest when the Union approved the requirements prior to the Company’s implementation of the Program. Third, the letter of notification that Ms. Noctor received, announcing that she had won the 4th Quarter Car contest, did not constitute receipt of the award when the Company had established a clear policy that an award may be revoked up to the time the award is actually delivered to the recipient. Finally, the Company administered the 4th Quarter Car contest fairly and equitably, in Ms. Noctor’s case, when it reasonably exercised its discretion in imposing eligibility requirements for the Program and revoking the award when the Ms. Noctor did not comply with those requirements. The Awards Program is a benefit for the employees; an incentive not a contractual right. Therefore, the Arbitrator concludes that the Company did not violate the Agreement when it revoked Ms. Noctor’s award, after notifying her that she had won the 4th Quarter Car Program, for noncompliance with the Code of Conduct. Accordingly the Union’s grievance shall be denied.

 

IN THE MATTER OF THE INTEREST ARBITRATION

   BETWEEN

 

COMMUNICATION WORKERS OF        ) OPINION AND ORDER

AMERICA, LOCAL 7777                          )
                                                        
                                                      UNION,   )                      Re: Grievance of

          )                      Michelle Noctor - -
Awards
Grievance

and                                                    ) CWA # 7-00-05

QWEST CORPORATION, f/k/a                ) FMCS # 223-06392-7

US WEST COMMUNICATIONS, INC.     )

                                              EMPLOYER. )  


The Arbitrator, in arriving at this decision, has reviewed all the evidence, exhibits, hearing notes and has considered the arguments of the parties as set forth in the post-hearing briefs. In view of all the evidence and for the reasons set forth in this Opinion, it is the decision of the Arbitrator that the Company did not violate Article 24, Award Programs, of the Collective Bargaining Agreement when it denied the Grievant, Michelle Noctor, her award after notifying her that she had won a Chevy Blazer in the 4th Quarter Car contest. Accordingly, it is the Order of the Arbitrator that the Union’s grievance be denied.

 

__________________________

Eric B. Lindauer,

Arbitrator

July 25, 2001

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