28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Fluor Hanford, Inc. and Hanford Atomic Metal Trades Council
Date: October 1, 2001
Arbitrator: Duane Buckmaster
Citation: 2001 NAC 14

 
IN THE MATTER OF THE ARBITRATION

BETWEEN

HANFORD ATOMIC METAL TRADES COUNCIL (HAMTC) AFL-CIO (IUOE LOCAL 280
"  The Union"

AND
05279-7
FLUOR HANFORD, INC.
"The Employer"

ARBITRATOR'S

OPINION

AND

AWARD

FMCS   #010125-
Grievance #99-158

                                                                                            

HEARING SITE:  Federal Office Bldg., 825 Jadwin Ave, Richland, Washington.

HEARING DATE:  June 14, 2001

ARBITRATOR:  Duane M. Buckmaster
                          
17 Morningview Circle
                          
Lake Oswego, OR 97035-8840

APPEARING FOR THE UNION: 
                                                           
Kenneth J. Pedersen, Esq.
                                                
            Davies Roberts & Reid
                                                
            101 Elliott Avenue West  Suite 550
                                                
            Seattle, WA 98119

APPEARING FOR THE EMPLOYER:
                                                           
Charles K. MacLeod Esq.
                                                 
          Chief Labor Council
                                                          
 Fluor Hanford, Inc.
                                                           
P.O. Box 1000 MSIN B3-15
                                                           
Richland, WA 99352

WITNESSES:

            FOR THE UNION:
                                             
   Donald H. Bushey, Business Manager, Local 280 (Retired)

Dean Bushey, Grievant, Chief Steward, Local 280, and HAMTC Trustee, "E" Board

            FOR THE EMPLOYER:
                                               
Kent Smith, Manager, Liquid Effluent Process Plant

BACKGROUND

The Employer, Fluor Hanford, Inc. has a  contract with the United States Department of Energy for the operation and management of the Hanford Nuclear Reservation (HNR). Over a past period of time this contract has been rebid on several occasions, and has been held by various corporations, most recently (prior to Fluor Hanford) by the Westinghouse Hanford Company.

Employees of the contractor are represented by various craft unions (currently fourteen), which have jointly formed the Hanford Atomic Metal Trades Council (HAMTC) to coordinate certain official labor-management interactions, including negotiation of Collective Bargaining Agreements on behalf of the member unions. In this case, the dispute is brought to arbitration by HAMTC representing Local 280, International Union of Operating Engineers (IUOE). 

The dispute has to do with jurisdiction over certain work performed at a location identified as the 200 Area Liquid Effluent Treatment Facility (LETF). Fluor Daniel Hanford has assigned certain work to Nuclear Chemical Operators (NCOs) which HAMTC asserts is properly the work of Stationary Operating Engineers (SOEs).

The grievance as filed in September, 1999 also protested the assignment of work in the WRAP area to employees other than SOEs. At the arbitration hearing the parties stipulated that this part of the dispute had been resolved.  It was also stated that the control room operation associated with the HVAC system will be assigned to SOEs.

The remainder of the dispute having been processed through the steps of the grievance procedure without resolution, it has been appealed by the union to arbitration as provided for in the Collective Bargaining Agreement.

THE QUESTION AT ISSUE

The parties were unable to agree on the question at issue. 

The Union proposal: Did the Employer violate the collective bargaining agreement by refusing to comply with the June 25, 1996 jurisdictional decision of the HAMTC Jurisdictional Committee? If so, what is the appropriate remedy?

The Employer's proposal (As stated in the hearing): Did the Company violate the labor agreement by its assignment of Computer Control Board Work and other de minimus work regarding the process vessel dryer in the 200 Area Liquid Effluent Treatment Facility to Nuclear Chemical Operators rather than Stationary Operating Engineers? If so, what should the remedy be?

The Employer's proposal (as stated in the post hearing brief):Did the Company violate the Labor Agreement by its assignment of Computer Control Board Work and other work regarding the Process Vessel Dryer in the 200 Area LETF to Nuclear Chemical Operators instead of the Stationary Operating Engineers? If so, what should the remedy be?

Given the absence of a stipulated statement of the issue, and having heard the evidence and reviewed the briefs, I have concluded that the issue can be clearly stated thus: Did the Employer violate the collective bargaining agreement by its non-compliance with the full terms of the June 25, 1996 decision of the HAMTC Jurisdictional Committee? If so, what is the appropriate remedy?

 

APPLICABLE PROVISIONS OF THE COLLECTIVE BARGAINING AGREEMENT

PREAMBLE

(Paragraph 2): The parties to this agreement shall embrace a strong commitment to safety, cost efficiencies and operational flexibility that attains results and achieves real progress in the cleanup at Project Hanford.

ARTICLE V
JURISDICTION

2. The Employer shall not undertake the settlement of jurisdictional disputes or craft boundaries. Such disputes shall be decided by the Council in accordance with its established procedure. Upon receiving notice of a jurisdictional or craft boundary dispute the Council shall notify the Employer, by registered mail, of the nature of the dispute. The Employer will have five (5) days after receipt of the notice, to present a written position to the Council describing the impact on the Employer's operations. The Council will not permit any such dispute to interfere with the progress of the work. The Council shall give the Employer written notice fifteen (15) days prior to the settlement becoming effective. Pending the settlement of such disputes, the work shall continue on the same basis as it was performed at the time the dispute arose. The Council recognizes that all jurisdictional agreements and awards entered into or rendered in accordance with the Council's regular procedures must be in the utmost good faith and not designed to promote ineffective working arrangements. The Council further recognizes its obligations to discuss such jurisdictional settlements and awards with the Employer pursuant to the contract, in good faith and with an authentic and meaningful spirit of cooperation and understanding.

THE POSITION OF THE UNION

Throughout its handling of this jurisdictional dispute, the  Union has acted in accordance with its established procedure as required by the Collective Bargaining Agreement (CBA). Upon the Union's notification as to its settlement, the Employer should have, but did not initiate steps to assign the disputed work in accordance with HAMTC's jurisdictional decision as required by Article V.2. of the CBA. The question at issue should be answered in the affirmative, and appropriate remedies should be awarded by the Arbitrator.

In the CBA between HAMTC and Fluor, Fluor agreed to "recognize the established seniority groups and their established jurisdiction." The contract lists the seniority groups in Attachment K. Appendix "A". The job description for the Stationary Operating Engineer (SOE) craft reads in material part as follows:

"Responsible for the critical control of utility equipment, building heating and ventilation systems, closed-loop cooling, vacuum pumps, compressors, DOP testing and air balance functions, the operation of boiler sand related auxiliary equipment, process water supply equipment, water treatment, refrigeration, electrical generators and process air conditioning equipment."

The mission at Hanford shifted in the mid 80s from the production of weapons grade plutonium to the environmental restoration of the 560 square mile Hanford project. The 200 Area had been used for the processing of nuclear fuel for the Hanford reactors and for the processing of plutonium, producing large quantities of contaminated water and by-products which were stored without treatment. Part of the Hanford restoration includes the treatment of these waste products.

In August, 1993 site contractor Westinghouse Hanford convened a meeting of HAMTC representatives and company engineering and industrial relations staff members to discuss Westinghouse's plan to construct a Liquid Effluent Treatment Facility (LETF) in the 200 Area.  The attendees were given copies of a document indicating that the project would be completed in July, 1994. Westinghouse also distributed a proposed staffing plan for the post-completion operation of the facility. Staffing was estimated to require 28 operations personnel, 32 maintenance workers and, significantly, 7 power operators.

The 200 Area LETF actually began operating in May, 1995. At that time Mr. Bushey learned that there were no SOEs assigned to the facility. Mr. Bushey investigated, and learned that the air compressors, HVAC systems, sanitary water systems and the operation of the high and low pressure boilers had been assigned by Westinghouse to seniority group 004 NCOs rather than SOEs.

Mr. Bushey filed a jurisdictional claim with HAMTC.

By letter dated April 25, 1996, HAMTC notified Westinghouse and the other Hanford contractors of the jurisdictional dispute, in accordance with the CBA. This notification preceded HAMTC's internal jurisdictional dispute resolution process.

The HAMTC Jurisdictional Committee met on June 11, 1996 and reached the following conclusions:

" The operation of the air compressor in the 200 Area Effluent Treatment Facility if for process use only is the jurisdiction of the Nuclear Process Operators under the representation of OCAW. The operators of air compressors for delivery of pressure to instrumentation and other non-process requirements shall be the jurisdiction of Power Operators under representation by the IUOE. If a compressor is utilized for a dual purpose, encompassing both process and non-process air supply, its operation shall be the jurisdiction of the IUOE up to the point of first "valve-off" to an operational system.

"The operation of all HVAC systems is the jurisdiction of the IUOE.

"The operation of the sanitary water systems and related components up to the point of the first "valve-off" to an operational system is the jurisdiction of the IUOE.

"The operation of the high and low pressure boilers and related components up to the point of the first "valve-off" to an operational system is the jurisdiction of the IUOE."

The jurisdictional decision by HAMTC was transmitted to labor relations officials of Westinghouse Hanford, Battelle-Northwest, Bechtel Hanford and ICF-Kaiser Hanford by letter dated June 25, 1996.

After Fluor replaced Westinghouse as the Hanford contractor, Fluor's industrial relations staff assured Bushey of their intent to comply with the jurisdictional award. Bushey attended meetings with James Hanna, Fluor's Director of Human Resources in which Hanna and his assistant, Frank Blowe stated their intent to comply. In one of these meetings Bushey asked  whether Flour believed that the jurisdictional award was "designed to promote ineffective working arrangements", and Blowe assured him that the Employer was not so contending. There was no statement or indication that the Employer believed that the award of jurisdiction was rendered in anything but the "utmost good faith".

Some minor duties assigned by the award to the SOEs, including manual inspections of equipment, were so assigned by the Employer There were further developments which indicated that Fluor intended to comply fully with HAMTC's jurisdictional award. For example, on 2/9/99 the following email message was sent by Vicki Locati, an industrial relations representative, to Troy Dale, a manager at the 2225 laboratories:  "Hi, Troy (Hope you're having a good time on shift!!). Just a note to followup on our conversation relating to WMH's [Waste Management Hanford's] commitment to have SOEs perform checks of High and Low Pressure Boilers, HVAC systems, Air Compressors and Sanitary Water systems and to be on call for problems.  You had indicated you were aware of the commitment and working on the required training. Are you able at this time to give me an approximate implementation date?  thanks, Vicki"  A copy of this message was sent to Kent Smith, the manager of the 200 Area ETF.

Dean Bushey, appointed HAMTC steward in November, 1998, began efforts to implement the award directly after his appointment. He met regularly with Ms. Locati and also met with Jeanette Hyatt, a Human Resources Manager for Waste Management Hanford. Despite assurances of intent to comply, the Employer did not do so. Finally, Dean Bushey filed the grievance which culminated in this arbitration.

It is worthy of note that the number of SOEs in seniority group 005 has dropped precipitously in recent years. In March, 1996 there were 141. By May, 2001 there were 97. During this same period the number of NCOs to whom Fluor assigned the disputed work expanded by between 200 and 250 employees.

In three previous cases involving attempts by Hanford contractors to disregard the decisions of the HAMTC Jurisdictional Committee, arbitrators have rejected the Employers' actions here undertaken by Fluor.

In the arbitration between HAMTC and Rockwell International Corp., FMCS # 85 K 12960, 1986, Arbitrator James L. Macpherson ruled that the Employer violated Article V of the agreement by not recognizing the decision of the Council (Union exhibit #9).

In the arbitration between HAMTC and Westinghouse Hanford Co., FMCS #91-12697, 1991-92, Arbitrator John H. Abernathy, in sustaining the grievance, ruled that the Company violated Article V of the collective bargaining agreement, and directed that the Company reassign the work in question in accordance with the Council's jurisdictional settlements (Union exhibit #10).

Again, in 2000, Arbitrator Michael H. Beck in an arbitration between Bechtel Hanford, Inc. and HAMTC, (Union exhibit #11) ruled that the refusal by Bechtel Hanford to comply with the three decisions of the HAMTC Jurisdictional Board violated the parties" collective bargaining agreement, and ordered the Employer to reimburse employees of any loss in wages and benefits.

The three cited cases are, in principle, essentially identical to the case at hand. The Union requests that the arbitrator give these cases serious consideration and weight. The interests of orderly labor relations are best served by giving substantial weight to the decisions in three similar cases. In addition, the Union's position is in keeping with the standards established in the collective bargaining agreement. HAMTC followed its established procedures in convening the Jurisdictional Committee,  and the Committee conducted its work properly in accordance with the requirements of the collective bargaining agreement.

The Employer incorrectly claims that the work of SOEs at the 200 Area LETC is "de minimus", amounting to two to ten hours of work per year. Actually, the Union's testimony clearly indicated that the extent of this work was substantially greater than claimed by the Employer, although the Union witness did not state a specific number of man-hours per week, month or year.

HAMTC respectfully requests that the Arbitrator:

  1. Sustain the grievance.
  2. Order that the operation and maintenance of the steam boilers at the 200 Area ETF facility be awarded to the Stationary Operating Engineers Seniority Group in accordance with the decision of the HAMTC Jurisdictional Committee,
  3. Return this matter to the parties for negotiation of an appropriate remedy in compliance with the Arbitrator's award, and,
  4. Retain jurisdiction over this matter for a period of 120 days in order to assist the parties in the implementation of the remedy.

THE POSITION OF THE EMPLOYER

The Employer does not deny that the language of the collective bargaining agreement (CBA) requires it to follow Union jurisdictional decisions when disputes between various unions occur. However this requirement is qualified by contract language which requires the Union to settle these internal disputes by its "established procedure" or "regular procedures" in the "utmost good faith" and to discuss those situations "in good faith and with an authentic and  meaningful spirit of cooperation and understanding." The Union, in this case, has not met these qualifying requirements. The Union did not follow its established or regular procedures, and it did not act in the utmost good faith. In addition, by proposing assignment of SOEs to this LETF the Union has ignored its commitment stated in the Preamble to the CBA to "embrace a strong commitment to -------cost efficiency and operational flexibility --------."

There was, in the 1990s, a jurisdictional dispute between IUOE Local 280 and OCAW Local 1-369 in 1996 involving jurisdiction over operation and maintenance at the TEDF in the 300 Area at Hanford, a "sister facility" to the TEDF involved in this case. The Employer, Westinghouse Hanford Company (WHC), requested HAMTC's concurrence in assigning Nuclear Processing Operators (NPOs) to this work. Because this work was claimed by the IUOE, HAMTC convened a Jurisdictional Committee to resolve the dispute. The committee awarded the work to IUOE.  OCAW then appealed the decision, and as provided in the Jurisdictional Policy of the Metal Trades Department, AFL-CIO, the matter was submitted to an impartial referee for resolution. Arbitrator M. Zane Lumbley was selected as referee.

The following quotation from Arbitrator Lumbley;s decision describes the outcome of that settlement: "I have determined that the operation of the 300 Area TEDF, with the exception of certain functions belonging to Power Operators represented by IUOE, should be awarded to NPOs represented by Local 1-369. Those exceptions are 1) the heating, ventilating and air conditioning systems, 2) the water and steam lines and valves coming into the facility up to the point of the "first off Valve", and 3) to the extent that employees of the Employer are responsible for such sewers in the 300 Area TEDF, the biologically contaminated sanitary water sewers flowing from the sinks, drinking fountains and toilets."

The disputed work in this case consists of clicking a mouse on a computerized control panel a few seconds at various times when a malfunction on a process vessel dryer occurs and other de minimus work at the process dryer at the 200 Area LETF.  This LETF opened in April, 1995, and since that time NCOs have operated the control panel, just as they do in the #300 Area LETF as directed by  Arbitrator Zane Lumbley's aforementioned decision. That decision makes a clear distinction between "process work" (assigned to NCOs represented at that time by OCAW) and other work involving HVAC systems, water and steam lines and valves coming into the facility up to the point of the first off valve and water sewers flowing from sinks, drinking fountains and toilets was assigned to Power Operators (synonymous with SOEs) represented by IUOE. Given this background, the Union did not follow "its established procedures" in the HAMTC Jurisdictional decision regarding the work at the 200 Area LETF, in violation of its obligation under the Contract.

Furthermore, the Union violated the "utmost good faith" provision of the CBA in making its jurisdictional decision in the case now in dispute. After this decision, the NCOs appealed the work assignment to SOEs through established Union channels. HAMTC allowed the processing of this appeal but did not inform the Employer about it, even though it was possible that the situation could have caused the Employer to reassign work from NCOs to SOEs and then back again to NCOs. The appeal was later withdrawn, but it should have been made known to the Employer at the time it was filed. The Union's failure to do this is a violation of the utmost good faith standard.

Another example of the absence of utmost good faith in the Union's behavior in this case is its failure to notify the Employer of Arbitrator Lumbley's decision on jurisdiction at the 300 Area LETF. Disclosure would have supported the Employer's NCO assignment in the instant case, whereas non-disclosure robbed the then Employer, Westinghouse Hanford Company, of its opportunity to comment on the 200 Area LETF jurisdictional dispute. Knowledge of the Lumbley decision would have been crucial to this Employer right.

HAMTC informed the Employer of its jurisdictional decision before that decision had been finalized, i.e. when it was under appeal and subject to change by the metal trades department. Premature notification of an intermediary jurisdictional decision under appeal and subject to change does not meet the high standard of utmost good faith by the Union in rendering these decisions.

Without question, this jurisdictional decision contradicts Arbitrator Lumbley's February 7, 1996 decision in a dispute between the same two unions at the sister facility (the 300 Area LETF). The Union's non-disclosure and contradiction of this decision is in bad faith as opposed to utmost good faith, a clear violation of the CBA.

The Union's 6/25/96 jurisdictional decision partially supports the Employer's position in that it recognizes that IUOE jurisdiction only extends to the "first valve-off" (where the boiler and related components enter the process facility). This is consistent with the Lumbley decision. But the 6/25/96 decision conflicts with the Lumbley decision in that the Union claims that "a boiler is a boiler" and therefore , without regard to its use, it is the jurisdiction of the SOEs.

If the Arbitrator were to sustain this grievance, it would mark the first time at Hanford that SOEs were given exclusive jurisdiction of a process system and would be in contravention of Arbitrator Lumbley's decision which is binding on the Union.

Kent Smith, a witness for the Employer, testified that the amount of work at issue is 2 to 10 hours per year. This was undisputed in the hearing. No contrary figure was introduced by the Union. Union witnesses simply did not know. By any reasonable interpretation this amount of work for SOEs is de minimus.

Finally, past decisions by Arbitrators which the Union has submitted in evidence are faulty in the sense that they contain wrong interpretations of the word "ineffective" which appears in Article V.2. of the CBA: "The Council recognizes that all jurisdictional agreements and awards - - - - - -must be in the utmost good faith and not designed to promote ineffective working arrangements."  In the context of the CBA, the definition of the word "ineffective" must be viewed as including "inefficient". The CBA must be read in its entirety. The 1997 agreement, in its preamble, includes the following clauses: "The parties to this agreement shall embrace a strong commitment to safety, cost-efficiencies and operational flexibility." This Union/Company commitment to "cost efficiencies" and "operational flexibility applies to all Company and Union actions such as the Unions jurisdictional decisions. With due respect to Arbitrators Macpherson and Abernathy, their understanding of the meaning of "ineffective" is just plain wrong. The dictionary definition of "ineffective" is "producing a decided, decisive, or desired effect". Arbitrator Macpherson completely omitted the "desired" part of the definition and wrongly substituted the term "unworkable". Arbitrator Abernathy, in endorsing this erroneous interpretation, perpetuated the error Thus, these prior arbitration decisions do not represent valid precedents.

Furthermore, the decision of Arbitrator Beck in the Bechtel Hanford Inc./HAMTC case, also placed in evidence by the Union, is not controlling in this case.  BHI has a different labor agreement with HAMTC, does not jointly bargain with FH and does not coordinate labor agreement language with FH. Nevertheless, the contract language being similar, the Employer points out that Arbitrator Beck made the same error in his interpretation of "ineffective" as did Macpherson and Abernathy.

The Employer requests that the Arbitrator deny and dismiss this grievance in its entirety on the basis of Arbitrator Lumbley's decision and the Union's violation of the contractually required "utmost good faith" in its jurisdictional decision and associated activities. The Employer further requests the Arbitrator find that the Union is required to notify and copy the Employer on all Arbitrators' jurisdictional decisions and appeals of HAMTC jurisdictional decisions.

ARBITRATOR'S OPINION

There is no dispute about the fact that the Employer did not assign the work at issue to Stationary Operating Engineers after notification of the decision of the Jurisdictional Committee. The dispute concerns the Employer's position that there is contractual validity and justification in its decision not to comply, and the Union's claim that no such justification exists. The Union also charges that the Employer has been, in effect, duplicitous in its behavior concerning its intent with regard to implementation of the Jurisdictional Committee's decision.

Given the Employer's acknowledgment of its decision not to comply implement HAMTC's determination of jurisdiction, the burden of proof shifts to the Employer to show justification, consistent with the terms of the CBA, for this decision.

I will address individually the Employer's reasons for not implementing the decision of the HAMTC Jurisdictional Committee (hereafter, the "JC").

1. Was the Union obligated, in order to satisfy the "utmost good faith" provision of the CBA, to inform the Employer about the appeal of the JC decision which led to the arbitration before Arbitrator Lumbley and/or the results of that arbitral proceeding? In my opinion the Union was not so obligated, except to the extent of notification of the final jurisdictional decision. This appeal process is an internal Union matter. It is not a part of the CBA between the parties, and as such, is outside the scope of this proceeding.  Both advocates in this arbitration have made a point of reminding the Arbitrator that, as stated in Article XVlll. 2. "The Arbitrator shall not have the authority to add to, disregard, or to modify any of the terms of this agreement ---------." The ethics of my profession would require this of me even if no such contractual language existed. It is my conclusion that Arbitrator Lumbley's decision, presented in evidence by the Employer, is "out of bounds" in this proceeding, and that the Union was in no way obligated by the CBA to communicate to the Employer about it.

2. In the instant jurisdictional dispute, was the Union obligated to inform the Employer that the appeal was withdrawn? No. (see above).

3. Has the Union acted in "the utmost good faith" in dealing with this jurisdictional dispute?  My desk dictionary defines the word "utmost" essentially as stated in the Employer's brief, but it doesn't define "good faith".  Turning to Black's Law Dictionary produced the following definition: "Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual's personal good faith is concept of his own mind and inner spirit and, therefore, may not be conclusively determined by his protestations alone. Doyle v. Gordon, 158 N.Y. S.2d 248, 259 , 260. Honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconciencious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconsiencious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, means being faithful to one's duty or obligation. Efron V. Kalmanovitz, 249 Cal.App. 187, 57 Cal.Rptr. 248, 251."

Having considered all of the evidence and testimony, I conclude that the Employer's charges of failure on the part of the Union to act in the utmost good faith have not been established. I find no reason to believe that the Union acted in such a way as to indicate an intention to mislead or to withhold information which it was obligated to disclose, or that the Union was not faithful to its duty or obligation.

 4. In the clause "not designed to promote ineffective working arrangements" (CBA, Article 5.2.) does the word "ineffective" incorporate the meaning of the word "inefficient"? Obviously the Employer holds that the answer is affirmative, and that giving jurisdiction of the disputed work to SOEs would result in inefficiencies compared to the existing assignment to NCOs. The Employer offered little evidence as to the precise nature and magnitude of these claimed inefficiencies.

The Employer asks the Arbitrator to reverse the conclusions of three arbitrators in his answer to this question, and points out that I am not bound to bow to precedent in this Opinion and Award. However, because the issues in the three preceding cases are so similar at the core, it is right and proper, and consistent with established arbitral practices, that I give thoughtful consideration to these opinions which the Union has entered in evidence. I have done so.

To avoid unnecessary repetition I will not go into the details of the three cases to which I have referred. The parties are very familiar with this case history, and therefore I have simply chosen to identify these proceedings as follows:

The arbitration between HAMTC and Rockwell International Corp., FMCS # 85 K 12960, Arbitrator James L. Macpherson, Opinion and Award dated Oct. 9, 1986.

The arbitration between HAMTC and Westinghouse Hanford Company, FMCS #91-12697, Arbitrator John H. Abernathy, Opinion and Award dated April 15, 1992.

The arbitration between Bechtel Hanford, Inc. and HAMTC, Arbitrator Michael H. Beck jurisdictional disputes arbitration, Opinion and Award dated May 30, 2000. (The Employer contended that this case should not be considered applicable to the instant case for reasons enumerated in the hearing and brief. My view is that the cases have such striking similarity that I am obligated to consider the Beck decision, which was properly entered in evidence.)

In these cases, Arbitrators Abernathy and Beck state their agreement with the interpretation of "ineffective" as determined by Arbitrator Macpherson in his Opinion and Award here quoted:  "the dictionary records "ineffective" as not effective; not producing results; whereas "inefficient" is defined as not efficient; unable to effect or achieve the desired result with reasonable economy of means."

On the other hand, the Employer asserts that the two words at issue are synonymous, stating that "any reasonable interpretation of the two terms would show that they are interchangeable and certainly would not support the alleged "meaning" set forth in those previous Arbitrators' rulings, which is just plain in error."

The record is not helpful in determining the intent of the parties at the time this language was drafted and adopted. It can be assumed, however, that clarity of purpose was given consideration in drafting this language, and if the intent was to guard against inefficient working arrangements, then the word "inefficient" would have been used, rather than or in addition to "ineffective". It is, therefore, my opinion that Arbitrators Macpherson, Abernathy and Beck did not go astray in their conclusions  that the term "ineffective", in the context in which it is here used, means "unworkable".  I therefore conclude that, as the Union contends,  the Employer was in error in basing its non-compliance with the decision of HAMTC's Jurisdictional Committee on its view that the decision had been designed to promote ineffective working arrangements.

The Employer has referred to the Preamble to the CBA, which states, in part, the obligation of the parties to "embrace a strong commitment to safety, cost- efficiencies and operational flexibility that attains results and achieves real progress in the cleanup at Project Hanford". These are worthy objectives, but I do not interpret them to nullify any of the rights of either the Employer or the Union which are granted by other provision of the CBA.

SUMMARY OF OPINION

It is my conclusion that the Employer violated the collective bargaining agreement by its non-compliance with the full terms of the June 25, 1996 decision of the Jurisdictional Committee of the Hanford Atomic Metals Trades Council. I will issue an award to that effect. The work in dispute is to be assigned to Stationary Operating Engineers as promptly as it is feasible to do so.

The record does not contain sufficient information to establish  further remedy to which the Union may be entitled. Five years have elapsed, and some time may be required for the parties to work out whatever specific adjustments (pay, staffing, etc.) may be required for an equitable resolution. These matters should be resolved by discussion and mutual agreement between the parties.  I will retain jurisdiction for a period of ninety working days from the date of issuance of this Opinion and Award to assist, as necessary, in its implementation. 

IN THE MATTER OF THE ARBITRATION

BETWEEN

HANFORD ATOMIC METAL TRADES COUNCIL (HAMTC) AFL-CIO (IUOE LOCAL 280
"  The Union"

AND
05279-7
FLUOR HANFORD, INC.
"The Employer"

ARBITRATOR'S

OPINION

AND

AWARD

FMCS   #010125-
Grievance #99-158

                                                                                            

 For the reasons set forth in the Opinion which accompanies this Award, it is awarded that :

1. The Employer, Fluor Hanford, Inc., violated Article V.2. of the parties' collective bargaining agreement by its non-compliance with the full terms of the June 25, 1996 decision of the HAMTC Jurisdictional Committee.

2. The grievance is sustained.

3. The work in dispute is to be reassigned as promptly as possible, in accordance with the aforementioned decision of the Jurisdictional Committee.

4. The Union may well be entitled to further remedy in terms of staffing, pay, benefits and other conditions of employment. The calculation of the additional remedy shall be calculated in terms of the consequences that would have resulted had the Employer implemented the decision of the Jurisdictional Committee at the time of notification. The Employer and the Union are directed to enter into discussions without undue delay, with the objective of determining  fair and equitable remedies.

5. I will retain jurisdiction for a period of ninety working days from the date of issuance of this Opinion and Award for the purpose of assisting, as necessary, in the implementation of the Award.

Dated this first day of October, 2001, at Lake Oswego, Oregon.

 

Duane M. Buckmaster, Arbitrator

 

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028