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Title: Denver Housing Authority and Federation of State, County and Municipal Employees, Local 535
Date: December 1, 2001
Arbitrator: Thomas L. Watkins 
Citation: 2001 NAC 127

 

In the matter of arbitration between:

Denver Housing Authority
City and County of Denver, Colorado

                            and

AMERICAN FEDERATION  OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, Local Union No. 535

TACCESS TO CALL-OUT WORK

Artie Ruybal, Grievant

THOMAS L. WATKINS, Arbitrator

                                                                                            


APPEARANCES:

             FOR THE COMPANY: 

Bruce Sattler, Attorney
Bob Baca, Maintenance Supervisor; Witness
James DiPaolo, Financial Management Officer; Witness
Nancy Guereca-Munoz, Assistant to the CFO; Witness
Cynthia Jones, Agency Counsel
Dona Sam, Manager, Personnel Services; Witness
Charles Schloz, Chief Operating Officer; Witness

 
           
FOR THE UNION:

Cheryl Hutchison, Business Agent, AFSCME Council 76
Lee Ray, President, Local 535
Artie Ruybal, Grievant; Witness
Robert Zamora, Maintenance Technician; Witness

 

HEARING HELD: November 15, 2001 at the offices of the Employer, 777 Grant Street, Denver, CO.  All testimony was taken under oath or affirmation.

 THIS PROCEEDING in arbitration was authorized under Article 4 of the Agreement between the parties dated October 11, 2000.  The Arbitrator was selected by the parties.


BACKGROUND AND FINDINGS OF FACT

    The case presented herein for decision concerns the Artie Ruybal’s (the Grievant) access to call-out work.  It is uncontested that to be eligible for such work an employee must be insurable for liability coverage through the Employer’s carrier, or self-insure liability coverage at a sufficient level (currently $500,000).  It is further agreed that as the most senior worker in the group, Ruybal was entitled to the work had he been properly insured.

    The following relevant facts were stipulated by the parties (bolded numbers), or were established as fact through testimony or documentation at the hearing (unbolded):

1.  Ruybal has more seniority than Robert Zamora.

2.  Between September 1999 and December 2000, Zamora worked more overtime than Ruybal.

3.  The Personnel Policy defines certain conditions of employment for Housing Authority employees.  Pursuant to Section 3.7.2,[1] employees who drive DHA vehicles or who use their own vehicles for authorized work-related job responsibilities must be insurable as determined by DHA’s automobile insurance carrier.  In the alternative, under certain circumstances, uninsurable employees may purchase additional liability insurance coverage as delineated in the Personnel Policy.

4.  In a December 7, 1999 memorandum Ruybal was notified that he was prohibited from driving for DHA business, including while performing his job.

5.  At some time prior to January 12, 1998 Zamora was prohibited from driving on DHA business.  However, he carried liability insurance in the amount required by the Personnel Policy from January 12, 1998 through January 12, 1999.[2]  [Jt. Ex. 6-A]

6.  Zamora was properly covered for the period February 3, 1999 through February 3, 2000.[3]  [Jt. Ex. 8; Un. Ex. 1-G]

7.  Zamora was notified by Personnel Services on January 3, 2000 of his ineligibility to drive unless he obtained proper self-insurance.  [Un. Ex. 1-F]

8.  Zamora carried no liability insurance from February 3, 2000 through June 19, 2000. 

9.  He was then notified of his ineligibility to drive, and he obtained insurance, but in an insufficient amount.  I.e., he was insufficiently insured from June 22, 2000 until November 28, 2000.  [Jt. Exs. 7 and 6-C; Un. Ex. 1-G]

10.  Zamora was assigned overtime and call-out work during this time.  [Un. Ex. 1-B; Jt. Ex. 9]

11.  He was notified on November 28, 2000 that his coverage was insufficient.  [Jt. Ex. 6-B]

12.  On that date Zamora increased his liability insurance to comply with the requirements of the Personnel Policy (although the specific company carrying the insurance was changed on December 14, 2000).  [Jt. Ex. 6-B, D, E]

13.  On November 10, 2000 Ruybal submitted insurance information which did not comply with the requirements of the Personnel Policy.  [Un. Ex. 1-E.1]

14.  Ruybal became properly insured, and so notified the Finance Department, on February 8, 2001.  [Un. Ex. 1-E.2]

15.  For a period of approximately one and one-half months, Ruybal was allowed to work overtime off-site.  He was driven to the site by a co-worker in a DHA vehicle.  This was a limited assignment.  No similar overtime assignments were made after that time.

            16.  From September 1999 through December 2000 the Finance Department was responsible for verifying the driving status of employees on an annual basis.  Finance was also responsible for verifying and maintaining certificates of insurance for those employees who purchased additional liability insurance.

17.  The procedure is: (a) the Finance Department reviews driving records of employees each year in November, using the Employer’s insurance company guidelines to determine who is eligible for its own coverage; (b) this “eligibility” information is sent to Personnel which in turn notifies the employee that s/he is ineligible until and unless s\he self-insures for liability coverage at the proper amounts; (c) if during the year an employee becomes ineligible because of her/his traffic record, it is up to the employee to notify Finance, which in turn would notify Personnel, which in turn would notify the employee that to remain eligible s/he must provide to Finance acceptable evidence of proper levels of self-obtained liability insurance. 

18.  The Finance Department did not notify Housing management staff when the insurance coverage for Zamora lapsed or when he was under-insured; and

19.  When Housing management staff assigned Zamora overtime, they understood that he was qualified for the assignment, i.e., he was the most senior properly insured employee.

STIPULATED ISSUE

    Did the Employer violate the Agreement when it offered Saturday, Sunday and holiday call-out work to Robert Zamora rather than to the Grievant, Artie Ruybal, who is more senior?

PROCEDURAL ISSUE

In the course of the hearing the Employer contended that the grievance was untimely because of its failure to comply with the requirements of Article 4, Section C which states, “An employee initiates a grievance by discussing the matter with their immediate supervisor within six (6) days of the alleged offense.”  In the alternative, the Employer asked that the grievance be confined to a period six days prior to December 5, 2000, the date it was filed.

Arbitrators are uniformly sensitive to mutually negotiated time limits, and they routinely deny grievances on such procedural violations even though presented with “a problem that needs to be solved.”  The standard normally used is, “When did the grievant know, or when should s/he reasonably have known, of the alleged violation?  And does that date fall within the specified limits?”

In our case the Employer’s contention must be viewed in the light of two circumstances.  First, while the alleged violation occurred over a substantial period of time, it “came and went;” i.e., at times Zamora was properly covered by insurance when Ruybal was not, meaning there was no violation; while during other periods Zamora failed to have proper coverage.  It was not a single violation.  Second, the contended periods could not be properly ascertained until requested documentation was provided by the Employer, something that was not done until after the grievance was filed.  In other words, it became a “chicken and egg” problem: the Union could not decide whether to pursue the matter until it obtained insurance records from the Employer; and it was not able to obtain the records without filing a grievance.  It was filed as soon as the Union felt it had sufficient information to reasonably move forward.

Under those circumstances it cannot be held that the grievance was untimely.  To do so would necessitate the Union continually processing some grievances "in the dark” when sufficient knowledge might have prevented them altogether.  Surely this cannot be what the parties had in mind when they mutually agreed to the language in the contract.  Therefore, the Employer’s petition that the grievance be declared non-arbitrable because of its untimeliness, or that its application be limited to a period six days prior to its filing on December 5, 2000, is denied.

SUMMARIZED POSITONS OF THE PARTIES - MERITS

The Union argues that the violation is uncontested: Ruybal was the most senior employee and he would have self-insured to make himself eligible had he known that Zamora was not properly insured, i.e., that Zamora was obtaining this work “illegally” under the contract.  Zamora was dishonest with Ruybal and with his managers and the agency in indicating that he was carrying proper insurance to be eligible to drive, while Ruybal was honest throughout.  It is irrelevant that Zamora was unaware that he was underinsured and therefore ineligible.  It is also irrelevant that the responsible persons in management were making assignments to Zamora in “good faith,” i.e., under the assumption that Zamora was eligible: persons in the Finance Department are charged with determining eligibility and properly transmitting their determination.  They failed to do their job, and in so doing treated Ruybal disparately under the contract.  Because of this, Zamora received the call-out opportunities that the Grievant deserved, and the Grievant cannot be made to pay for their mistakes or oversights.  Therefore, Ruybal is entitled to receive pay for all call-out hours that Zamora worked when he was ineligible.

The Employer contends first, that the Grievant did nothing to make himself eligible for call-out work although by his own admission he knew what he needed to do: obtain additional insurance.  He did not act for at least two months after he determined that Zamora was ineligible.  He simply calculated that it was not worth it, based upon the cost of the insurance and the amount of income he would potentially derive.  In contrast, the Employer acted in good faith throughout. 

            By her own admission, this situation was caused by the oversights of Ms. Guereca-Munoz who was at the time charged with determining the insurance coverage of employees and transmitting the information to Personnel.  She checked on Zamora and Ruybal only when they sought promotion, which also requires eligibility.  During the interim period when Zamora filed his insurance papers Guereca-Munoz did not examine them carefully enough to determine that his self-insurance level was insufficient.  In sum, there is no evidence that management knowingly allowed Zamora to work overtime without the required coverage.  This was simply an “unintentional oversight” for which it should not be punished by paying additional monies to an employee who did not work.  Therefore, the grievance should be denied.

ANALYSIS

Certain elements of this case are purely speculative.  Of particular note are contentions about when Ruybal knew of Zamora’s ineligibility and lack of insurance coverage, and his motives for inaction.  Those cannot be resolved with certainty.  Facts which can be determined are: (a) Zamora received many call-out opportunities which he should not have received because he was not eligible, (b) the Grievant would have received them had he and Zamora both been properly insured, and (c) Zamora benefited to the detriment of Ruybal because of management’s inaction.  Thus the only real question before us is whether an “unintentional oversight” ought to remove any responsibility to compensate for this error.  I do not believe this is proper.

The responsibility to know and understand the contract is a joint one, not one falling on only one of its signatories.  The Employer unilaterally composed the Personnel Policy manual, so it certainly understood that to be eligible for call-out pay an employee had to be adequately insured, and that it alone determined proper coverage.  While the onus to keep the Employer informed falls to the individual employee, the Employer must diligently take action on the information it receives if it is to be in compliance with its own policies.  This it did not do.

Two possible change sequences which might occur between the automatic annual reviews are important here.  The first is straightforward.  An employee’s eligibility status changes negatively, because of a citation, automobile accident, etc.  In this instance the burden is directly on the employee to inform the Employer of the change, and s/he risks disciplinary action if s/he does not do so in a timely manner.  The second possibility is the reverse.  Here, the employee’s situation changes positively, and we can expect that the worker will have an inherent incentive to inform the Employer; i.e., s/he has become re-eligible because of the passage of time, new insurance coverage, etc.  In either situation the obligation of the Employer is then to verify the accuracy of the information, to inform both this and other affected employees, and to identify the options available and what changes will occur as a result.  Some or all of these actions may occur in concert with the Personnel Department.

Clearly, both sides have obligations to provide accurate, timely information to the other.  And just as the employee risks discipline if s/he does not hold up her/his end, there is a risk on the Employer’s end: if not done in the manner anticipated by the Personnel Policies or the Labor Agreement, there is a price to pay if the “harmonious relations” anticipated by the Preamble to the contract are to be maintained.  In short, neither party can breach its obligations with impunity.

The record establishes that during the period February 3, 2000 through June 19, 2000 Robert Zamora was not covered by self-insurance to make him eligible to drive, and during the period June 22, 2000 through November 28, 2000 he was insufficiently covered by self-insurance.[4]  Neither he nor the Grievant were kept properly informed of this fact; i.e., at least twice during the 1999-2000 period the Finance Department personnel did not follow up on a change in the eligibility status of Zamora and/or did not require written proof of proper insurability, which is its practice.  This is partly Zamora’s fault, for improper notification; but it is ultimately the Employer’s burden because it did not diligently follow its own policies.  In any event, it is certainly not the fault of the Grievant.

Had Ruybal been properly informed, he might have obtained the additional insurance to be eligible for the call-out opportunities; and had he done so, he would have received those opportunities because of his more senior status.  That this sequence did not occur this way is a function of both Zamora’s actions (who may have acted innocently) and those of the Employer; but they did not result from the Grievant’s behavior, and he suffered a potential loss of income as a result.  For this the Employer is responsible.

Its failure to fulfill its obligations as anticipated by the parties results in the violation of Article 5, Section E,[5] and the issue must be decided in the affirmative for the dates identified.

DECISION

The Employer is directed to reimburse to the Grievant an amount equal to that which he would have received had he worked the available call-out hours worked by Robert Zamora during the period February 3, 2000 through November 28, 2000, and all benefits associated therewith.[6]  The Arbitrator retains jurisdiction of this matter only to the extent the parties are unable to mutually agree as to the amounts due

 _______________________________

                                                        THOMAS L. WATKINS, Arbitrator

 

Frisco, Colorado

December 1, 2001


[1] The “12/19/00” edition of the Policy manual was presented as Jt. Ex. 2, although the preceding edition, in effect at the time of the alleged violations, was used throughout the hearing.  However, neither the section numbers nor any of the relevant wording was different.

[2] Jt. Ex. 7 shows insufficient coverage during the 2-year period June 8, 1998-June 8, 2000.  However coverage of a sufficient level was carried by another company (American Family Insurance) at least during the period indicated here and in Par. #6.

[3] It may be assumed that Zamora was also properly covered through the one-month gap indicated by #5 and #6 above via the insurance company’s “grace period.”

[4] See supporting information under #5-12 above.

[5] Article 5 Sections D and F have not been violated here, but are relevant for the purpose of overtime pay calculation.

[6] An examination of Jt. Ex. 9 would appear to indicate the number of hours involved to be 134, but the parties are not bound by this calculation.

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