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Title: Supervalu, Inc. and Teamsters Local 435
Date: September 17, 2001
Arbitrator: Thomas L. Watkins 
Citation: 2001 NAC 123

 

In the matter of arbitration between:

SUPERVALU, INC.
Denver, Colorado

                            and

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Local 435

FORCED MOVEMENT TO
                                                                                                    ANOTHER DEPARTMENT;
                                                                                                                SENIORITY

Grievance Nos. 75586,

FMCS No. 011205-02997-7

THOMAS L. WATKINS, Arbitrator


APPEARANCES:

            FOR THE COMPANY:

                        Mountain States Employers Council by Barbara Thompson
                        Eric Hosfelt, Director of Distribution; Witness
                        Steve Thompson, Human Resources Manager; Witness

            FOR THE UNION:

                        Linda Cote, General Counsel
                        Herb Lynch, Negotiating Team Member; Witness
                        Roger Quimby, Business Agent; Witness
                        Gary Scholz, Steward; Witness
                        Sean Sharigian, Grievant; Witness
                        Steve White, Grievant; Witness


HEARING HELD:  May 22, 2001 in the offices of the Union, 10 Lakeside Lane, Suite 3A, Denver, Colorado.


THIS PROCEEDING in arbitration was authorized under Article 15 of the Agreement between the parties dated October 21, 2000.  The Arbitrator was selected by the parties through the procedures of the Federal Mediation and Conciliation Service.  A court reporter was present and all witnesses were sworn.


POST-HEARING BRIEFS were timely filed by both parties.

BACKGROUND AND ISSUE

   
The Company (or Employer), Supervalu, Inc., is engaged in the warehousing and distribution of grocery and related products for multiple customers and locations in the greater Denver area.  Non-supervisory employees are represented for the purposes of collective bargaining by the Union, Teamsters Local Union No. 435.  The case presented herein for decision involves the matter of which employees may be properly moved from one part of  the Company’s facility to another, when the second area or department requires additional manpower.

    The warehouse includes seven departments, but the only three of relevance here are grocery, perishable and general merchandise (GM), which are typically involved in the loading of trucks.[1]  Work imbalances across the three departments were a common problem for the Employer all during 1999. The ‘crunch’ period existed through much of 2000, when nearly 40% of the trucks were arriving at customers’ sites late.  In the autumn of 2000 this was exacerbated by a labor shortage in the Denver area, concurrent with the Employer’s taking on a great deal of additional work. 

    Because orders varied greatly from day to day, it was impossible to determine the precise number of workers which might be needed in one of the departments at any given time.  Inevitably one of the departments would fall behind the others in preparing loads for the trucks, and this department would then need additional hours, and additional manpower, to catch up.  The Company’s response was to seek volunteers from a department which was caught up with its work; if it failed to find sufficient volunteers, it forced junior employees from that department to move, starting from the bottom of that department’s seniority list.  It was not uncommon that the department needing help would also require overtime, with the result that transferred employees would be working after employees junior to them (from other departments) had gone home.

    This approach, which had caused difficulties in the past particularly during the ‘crunch period,’ was to be clarified in the changes made to the Agreement during the 2000 negotiations.  The Company proposed new language for Article 18 and, following a Union request, provided clarification of the Company’s position in a letter on October 20th [Jt. Ex. 8]:

The following is the Company’s intent for administering Article 18.01 under our proposal submitted to the Union on October 18, 2000.

Work in other departments will be offered by seniority (seek volunteers) and forced by inverse seniority (if we do not receive enough volunteers).  In other words, we will administer Article 18.01 consistently with the current language in Articles 3.16(a), (b) and (c).[2]

Upon receipt of the letter the Union ratified the new Agreement on or about October 20th, including the renegotiated language in Article 18 as it appears below.

    On Friday, October 27th, Steve White, who was a junior employee in GM, but not the most junior in the facility, was forced to work in the grocery department to assist in filling orders.  On Tuesday, November 7th, Sean Sharigan, a junior employee in GM, but not the most junior in the facility, was forced to assist in grocery for the same reason.  By virtue of those moves, both men worked longer on the respective day than each would have, had he remained in GM; and both had bid into GM at least in part to avoid long hours.[3]  Less senior persons from other departments (specifically perishable), based upon company-wide seniority,[4] left work before they did.  As noted in detail below, grievances were filed on behalf of both individuals because of the Union’s belief that the Company is obligated to use overall (not departmental) seniority in making such assignments.

    The grievances were normally processed through the negotiated procedure, denied by the Employer throughout, and are now stipulated to be properly before this Arbitrator for a decision on their merits.  The parties further stipulated to the following issue to be decided:

    Is it a violation of the Collective Bargaining Agreement for the Company to make straight-time assignments of employees from one department to another by reference to department seniority rather than by company-wide seniority?  If so, what is the proper remedy?

    The parties also stipulated to two additional items:  persons in perishable with less company-wide seniority than the Grievants were not asked to go to grocery on the dates in question; and, once an employee is properly assigned to a department it is proper to release employees by seniority within the department in which they are working.

RELEVANT LANGUAGE OF THE AGREEMENT[5]

ARTICLE 3

SENIORITY

3.01    Seniority shall be defined as length of continuous service of regular full-time employees within the bargaining unit.  On layoffs, transfers, job bidding, recalls, and promotions, the principle of seniority shall apply, providing qualifications are relatively equal.

3.16 (b)    Temporary job assignments in the grocery, general merchandise, and perishable departments which exist due to increased work load and/or any added daily job assignments shall be filled by the senior employee in the department who desires such work.  An employee shall be allowed one (1) “temporary job assignment” per day.  The only exception(s) to this would be to a higher paying job, and in overtime, at which time seniority shall prevail.

ARTICLE 7

SCHEDULE OF HOURS[6]

7.04(a)    Management will first determine the hours of overtime to be worked, the number of employees needed and whether the overtime is pre-shift or post-shift overtime.  Pre-shift and post-shift overtime is defined as overtime which is contiguous to (connected to a regularly scheduled shift.

            Overtime work of three (3) hours or less shall be offered to employees on duty who have signed the overtime volunteer sheet.  Overtime work of more than three (3) hours shall be offered to any employees who have signed the overtime volunteer sheet.  In both situations, the overtime will be offered in the following order:

            First, by seniority to employees within the department.  If additional employees are needed, it shall be offered by seniority to employees outside the department who have signed the overtime sheet in the department where the overtime occurs.  Lastly, the Employer may require, by inverse seniority, employees in that department to work overtime.

ARTICLE 18

SPECIAL CONDITIONS

18.01    It is understood that an employee working in any classification or department may be temporarily assigned by seniority to a lower or higher classification in any other department and he/she shall be required to perform any labor or render any service in or about or in connection with the Employer’s business. . . . . [Emphasis in original, where emphasized phrases represent changes made in 2000 Agreement from the prior Agreement, Jt. Ex. 2.]

ARTICLE 26

MANAGEMENT RIGHTS

26.01    The management of the business and the direction of the working forces, including the right to  . . . transfer, or relieve employees from duty . . . are vested in the Employer provided, however, that this right shall be exercised with due regard for the rights of the employees and provided further, that it will not be used . . . for the purpose of invalidating any contract provisions.

POSITION OF THE UNION

    The Union contends that the language of Article 3 governs this matter and is clear: it requires the use of company-wide seniority in making transfers.  I.e., since less senior persons were available within the Company on the dates in question, the Grievants should have sent to perishable (where the prospects of going home earlier were better), while the least senior persons from perishable should have been sent to grocery.  The Company is obligated to first recruit volunteers, and when insufficient numbers of personnel volunteer, force by inverse company-wide seniority.

    The Company’s current practice allows it to arbitrarily select a department to “pick on” for its transfer needs.  The seniority provisions of the Agreement are designed to halt that arbitrariness and to bring order to the system by requiring the Employer to move the least senior people, not simply the least senior in a department of the Employer’s choosing.  Temporary transfers are the same as temporary layoffs in that they do have a ripple effect.  It causes disruption, but it is the system to which the parties agreed.  In addition, on the dates in question, the Company did not seek volunteers, as required by the Agreement.

    However, even if the Agreement with respect to this situation is ambiguous, it first must be interpreted by the intent of the parties and their past practices.  The language, proposed by the Company, does not mention a concept of “departmental seniority;” rather, it states, “ . . . temporarily assigned by seniority.”  [Emphasis in Agreement.]  The provision means that, once the Company decides to transfer someone by overall seniority, from one department to another, s/he is then authorized to exercise his or her seniority in that department as compared to others within it.  Seniority is not qualified by the term “departmental” and must therefore refer to overall seniority as defined in Section 3.01.  Departmental seniority is relevant only after one has become attached to the department; until then, company-wide seniority must govern.  The Union’s acceptance of Article 18 was based upon assurances that transfers would be done by seniority, not randomly. 

    Second, to the extent there is ambiguity the Company created it, and ambiguous language must be construed against the drafter.  Neither verbally nor in writing did the Company ever tell the Union, who Company officials knew were concerned and confused about the proposed language, that it intended to handle transfers by departmental seniority.  It was incumbent on the Company to do so.

    Third, the meaning of Article 18 must be interpreted within the meaning of the whole agreement.  The Company’s interpretation of Article 18 is untenable, especially given the express reference to Article 3.16(a), (b) and (c) in the Company’s explanatory letters, and the definition of “seniority” provided in Section 3.01.  Within the context of the collective bargaining agreement, the term “seniority” describes overall organizational seniority.  Thus, when in their explanatory letters the Company used the terms “offered by seniority” and “forced by inverse seniority,” the Company was telling Union members that work in other departments would be offered by overall seniority and forced by overall inverse seniority.  If the Company had meant that work in other departments would first be offered by departmental seniority, it was incumbent on the Company to have said so.

    Finally, management’s rights are not unlimited.  Indeed, they are expressly limited by the language of the Agreement.  For each and all of these reasons, the Union asks that the grievances be upheld and that the Company be directed to transfer employees from one department to another on the basis of the employee’s overall organizational seniority, as defined by Section 3.01 of the Agreement.

POSITION OF THE COMPANY

    The Company notes first that the Union has the burden of proof in an allegation of contract violation, and it has presented no evidence that supports its position that transfers from one department to another must be made on the basis of company-wide seniority.  Indeed, the relevant portions of Article 18 specifically state that an employee working in any department may be temporarily assigned by seniority to any other department.  Insertion of the term “by seniority” clearly references the “department” from which an employee is being transferred.

    The Union’s position of construing the term seniority to reference overall seniority fails to give independent effect to the use of the term “department” which precedes it.  There would be no need to use the term “department” if the Employer were obligated to transfer on the basis of overall seniority since all departmental seniority would be subsumed in the company-wide seniority list.  This interpretation would rewrite the contract to read, “an employee may be temporarily assigned by seniority,” period, without reference to any department in which the employee might be working.

    This clear language supports an economic necessity: by moving an employee from one department, which has or is projected to finish its work on time, to a department which is behind in its schedule, the Company is able to balance the workload in order to control excessive overtime, and, as importantly, get the trucks out on time.  The Employer must draw from the department that is ahead, i.e., where employees are available.

    Under the Union’s interpretation the Company would be required to first locate the most senior employee, regardless of department, and offer the temporary assignment to him and continue through the company-wide seniority list until it was exhausted.  At that point the Company would reverse the process.  Since the Company’s clear intent in making its proposal was to facilitate the process of transferring persons from any department, such a result is clearly not what the parties intended, nor what they negotiated.

     The Union had filed a grievance [Co. Ex. 4] on September 10th regarding the Company’s action of forcing grocery employees to perishable and GM departments and for failing to follow seniority by allowing junior employees to leave or stay in their department and forcing senior employees out of their department.  After the renegotiation of Article 18, this grievance was withdrawn with the comment, “The issue involved in this matter is covered under the terms of the new collective bargaining agreement and the changes made to that language.  Therefore the grievance is moot.”  The Union also filed a grievance on November 17, 2000 [Co. Ex. 1] which was settled with the understanding, “The Company will continue the practice of following departmental seniority.”[7]

    Even if the language is vague, the Union’s interpretation would yield an absurd result: use of company-wide seniority would create a wasteful, inefficient, and uneconomical method of operation.  In the extreme, a driver or mechanic, for example, would have to be pulled off his job to assist perishable, leaving no one to “keep the place running.”  It would represent a senseless depletion of labor from departments which cannot afford to lose personnel.  The bumping that would occur before coverage would be secured for the vacancy left by the most senior volunteer (or the most junior employee) would be chaotic as well as absurd.

    Contrarily, under the Company’s interpretation, only the least senior employee/s in any given department is/are affected.   Once there, their seniority is dovetailed with the existing employees in the new department.  The Union has stipulated that once an employee is properly assigned to a department, it is proper to release employees by seniority in the department in which they are working.  The Company’s practice of transferring the most junior employees out of their department is consistent with this stipulated method of releasing them.

    Further, ambiguous contract sections in dispute must be read in the context of the whole Agreement to establish the intent of the parties.  In its letters of clarification [Jt. Exs. 7, 8], sent before ratification, the Company stated that Section 18.01 would be administered consistently with the current language of Sections 3.16(a), (b) and (c).  All of these sections address personnel movements which are based upon departmental not overall seniority.  Management must direct the work force in a manner which accomplishes the ultimate goal of getting the trucks out the door.  The determination of which department is on schedule and which one needs help is based upon the progress of those departments.  Those are precisely the “special conditions” which warrant moving an employee from one department to another.

    In addition to the specific context of Section 3.16, most sections of the contract which deal with the application of seniority utilize departmental seniority, including Sections 3.05, 3.06, 3.07, and 3.09.  These recognize seniority within the department for permanent job assignment and support the Company’s position that a temporary transfer must be made on a similar basis, rather than on the basis of overall seniority.  The same is true for Section 7.04, Overtime; and departmental seniority is similarly used for vacations and absences.  All of these contract sections illustrate that departmental integrity and, consequently, departmental seniority is an important principle of operation for the Company.  The Union’s interpretation of Article 18 violates this principle.

    For each and all of these reasons the Company asks that the grievances be denied.

ANALYSIS

    In what is a fairly straightforward question of contract interpretation, let us begin by simplifying the agenda.

    1.  What is the relevant contract language?  Article 18, since that language is specific to the situation which has arisen here and, as these and many other disputants have noted, specific language must be given effect over more general language.[8]  Article 3, Seniority, does address and define the broad concept of seniority, what it is, how it is gained and lost, and how it applies to vacancies, bids, layoffs, recall, and temporary job assignments.  It is helpful to us here in understanding the Agreement as a cohesive whole (see below), but it does not address the “Special Conditions” which gave rise to the grievances, and is therefore less specific.

    Similarly, Article 7, Schedule of Hours, focuses on the hours of work, how overtime is to be scheduled and paid, reporting pay, guaranteed work week and shift differentials.  Like Article 3, it is helpful in examining the Agreement as a whole, but of little help otherwise with the instant dispute.  Only Article 18 addresses the specific circumstances with which we are faced.

    There is one other significant reason why we must be guided here by Article 18.  Prior to the current Agreement this language referred only to temporary changes in classification.  Both parties acknowledge that the Company sought during the 2000 negotiations to embrace the concept of temporary departmental transfers within the topic of “Special Conditions” through its proposed new wording [Jt. Ex. 5].  As modified, the new language was adopted by the parties, although there was apparently little discussion regarding the manner in which the Company would determine which employees would be transferred from one department to another.

    Is, then, Article 18 clear on its face?  I believe it is; but if it were not subject to reasonable differing interpretations we would surely not be in arbitration.  Therefore, it is helpful to examine it through other lenses.

    2.  In addition to “specific v. general” language, what are the criteria against which ambiguous language is to be interpreted?  These standards or tests are generally held to be: (a) the likely mutual intent of the parties as manifested by discussions before or during negotiations, (b) the context of the entire agreement, which must be construed as a whole, (c) the custom and past practice of the parties, (d) prior settlements between the parties, (e) the avoidance of a harsh or absurd result, (f) the concept that to express one thing is to exclude another, (g) an interpretation against the party who proposed or drafted the language, (h) reason and equity, (i) the avoidance of a forfeiture, and finally (j) industry practice.[9]  Depending upon which brief one chooses to read, these standards range from determinative to irrelevant; and depending upon which citations one chooses to use, any one of these might be considered the primary determinant.  The last two are ignored here because of the absence of any meaningful information, and because there would seem to be sufficient guidance to be obtained from the other eight.

    3.  The practice of the parties and prior settlements.  Analysis of these two factors yields a confused picture and fails to provide the clarity necessary for resolution.  On the one hand, there seems to be little question that the Employer has regularly moved employees in accordance with its own interpretation of the language, despite Union protests.  On the other hand we have the Union grievance of September 10, 2000 [Co. Ex. 4].  As earlier noted, this grievance was withdrawn by the Union a month after the new Agreement was signed, and 2-3 weeks after the instant grievances were filed, with the comment, “The issue involved in this matter is covered under the terms of the new collective bargaining agreement and the changes made to that language.  Therefore the grievance is moot.”  The only substantive difference between that grievance (No. 75267) and ours is that after grocery workers were moved to assist in other departments the remaining grocery workers were forced to work overtime because they were shorthanded, whereas in the ones here, the grievants after having been moved to a new department ended up working overtime while less senior persons not moved from other departments were able to go home.  The Company action in making the moves, however, was identical: departmental, not overall, seniority was used to determine who would move.  As noted, all of this results in a confused and cloudy picture.

    4.  Mutual intent and the context of the whole Agreement.  Genuine help in interpretation comes from examination of these two factors.  After the Union expressed concern about the wording of the Company’s proposal [Jt. Ex. 5], the Employer revised it by adding the words “by seniority” to the paragraph as a qualification of its proposed right to transfer [Jt. Ex. 6].  This new proposal was presented to the Union on October 18th. 

    Concerns continued, however, and the Union sought further clarification.  This resulted in the two letters of explanation [Jt. Exs. 7, 8] from Steve Thompson, the Manager of Human Resources.  The letters were designed to clarify the Company’s intended practice in temporary interdepartmental transfers.  They reaffirmed that work in other departments would be offered “by seniority” and added that Section 18.01 would be administered “consistently with the current language in Sections 3.16 (a), (b) and (c).”  This puts 18.01 into the context of the whole Agreement.

    It is critical to note that all three of those subsections specifically embrace the notion of departmental seniority in establishing preferences with respect to bid jobs, temporary assignments and job abolishment.  They all refer to seniority within the department.  It is now clear the Company believes it was informing the Union, with that reference, that it intended to use departmental seniority in also making temporary interdepartmental transfers under 18.01; and it is equally clear (or we would not be in this arbitration) the Union never believed the reference to 3.16 implied the insertion of “departmental” into the language of 18.01. 

    The Employer argues that insertion of the term “by seniority” clearly references the “department” from which an employee is being transferred, under the doctrine of ejusdem generis: “where general words follow an enumeration of specific terms the general words will be interpreted to include or cover only things of the same general nature or class as those enumerated.”[10]  Candidly that doctrine does not apply here as there is no “enumeration.”  This conclusion does not impact giving “independent effect to the use of the term ‘department’ which precedes it” since use of the term “department” does distinguish it from “classification” which is the only designation to which the section previously referred.

    The Employer would also contend that “departmental” seniority can be implied into Section 18.01 because it can be implied into Section 3.13 which controls layoffs.  It cannot.  The fact that layoffs may be determined by job classification or department does not affect employees from exercising overall seniority in bumping to protect his/her job.  It is true that conceptually the key difference between Section 3.13 and 18.01 is that one is more permanent than the other; but the key similarity is that the term “departmental” is absent from both.  In either a layoff or transfer the Company may properly determine which jobs need doing and which one do not, but it is overall seniority which determines who shall do them.

    The fact is that throughout the Agreement “seniority” when it is not qualified refers to overall company-wide seniority.  Readings of Sections 3.05 through 3.09 as well as other articles referring to seniority reinforce this finding,[11] and do not adversely affect the concept of “departmental integrity.”  The Company, as the drafter of a revised Article 18, could have created clearer language in proposing new wording.  This leads us to yet two more of the criteria for determining the meaning of ambiguous language.

    5.  To include one thing is to exclude another; and when language is vague it should be construed against the party which drafted it.  The first of these is normally used for lists; e.g., if the reasons for discipline are listed, then by inference behaviors not listed would not result in discipline.  Here, one might  reasonably conclude that by not specifically stating “departmental seniority” in the language, its omission indicates it was not to be used in determining the transfers, i.e., that overall seniority was to be employed.

    But the more compelling question is why the Employer did not add the single word “departmental” to the proposal if that is exactly what it intended to use.  The line would then have read, “It is understood that an employee working in any classification or department may be temporarily assigned by departmental seniority . . . in any other department . . .”  This would make it consistent with Section 3.16, as it apparently desired.  The Company drafted language assuring its right to temporarily transfer employees across departments.  Despite multiple opportunities it never added the qualifier “departmental” to seniority as the criterion for transfer.  Nor did it clarify this in either letter to the Union despite the fact that it had every intention of using departmental seniority in making such transfers. 

    The absence of the qualifying word requires an interpretation that defaults to overall seniority as defined in Section 3.01.  To phrase it differently, wherever the Agreement means “departmental seniority” the word “departmental” appears.  Where it does not appear, overall seniority must be used.[12]

    6.  A harsh or absurd result, and reason and equity.  If nothing else was clear during the testimony, it was the mutual acknowledgement that identifying the least senior persons to transfer, company-wide, would be complex: all sorts of transfers might well occur due to the ripples of such a move, potentially leaving some jobs uncovered because no one was qualified to fill them.  This would indeed be a wasteful result, and one which the Company could not have had in mind when it proposed changes to Section 18.01 designed to make inter-departmental coverage more efficient and economical in order to more timely meet the expectations of its customers. 

    No one doubts that “management must direct the work force in a manner which accomplishes the ultimate goal of getting the trucks out the door,” and that it sought language to assure that it could.  Logic might also on the side of the Company here: the result of the Union’s interpretation is not only a less efficient operation, but one which reason would likely reject.  But it is unavoidable.  As these parties know, it is not the task of an arbitrator to dispense his own brand of industrial justice; and I am precluded by Section 15.03 from adding to, subtracting from, or in any way modifying the terms of the Agreement.

    In the end, the Company must live with the language it proposed and the Agreement it signed.  If this creates the untenable situation the Employer warns that it will, then it will have to be resolved through negotiation.  As it is, the language is clear; and to the extent that it is not, it is given meaning through the elements described above –all of which, except the last, support the Union’s position.  One must conclude that the Union has carried forth its burden in establishing that in the parties’ Agreement the word “seniority” refers consistently to overall seniority unless the term is qualified.  The language of Section 18.01 does not do so.

DECISION

    The issue is answered positively, and Grievances No. 75586 and No. 76477 are upheld.  The Employer is directed to employ overall company-wide seniority in making temporary straight-time assignments from one department to another, first by seeking volunteers, and then forcing by inverse overall seniority.


                                                ___________________________________ 

                                                THOMAS L. WATKINS, Arbitrator



Frisco, Colorado

September 17, 2001

 

[1] The other four are Transportation, Maintenance, Garage, and Sanitation.

[2] This letter was preceded the same day by a earlier version [Jt. Ex. 7], but the only changes were the addition of the two parenthetical phrases.

[3] Sharigian had bid into GM from perishable specifically to avoid the long hours commonly worked by persons in the latter department.

[4] The terms “company-wide” and “overall” are used interchangeably by the parties, and in this opinion, in referring to seniority.

[5] Jt. Ex. 1.

[6] The Employer’s brief erroneously includes these and other subsections as part of Article 3.16.

[7] It must be noted, however, that this grievance was filed after the ones here in arbitration.  It is thus unclear what effect that settlement should have on the instant matter, or what effect resolution of the current case might have on it or similar grievances.

[8] Elkouri and Elkouri, How Arbitration Works, 5th ed. (BNA, 1997) at 498.

[9] Elkouri, supra, 492-515.

[10] Elkouri, supra, at 497-8.

[11] See Sections 3.05, 3.11, 3.13, 3.15, 3.16, 7.04, 7.08 and 11.06.

[12] See Footnote #11 for specific citations.

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