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Title: MG Industries and Teamsters International Local 816
Date: December 21, 2001
Arbitrator: 
N. Eugene Brundige
Citation: 2001 NAC 145

OPINION AND AWARD

 

In the matter of Voluntary Arbitration

Between 

Teamsters International Local 816

And

MG Industries

Regarding

FMCS Case Number 02-01166
[David Wilcox et. al.]

 

APPEARANCES:
FOR THE UNION:
Gary Seay, Business Manager 
David Wilcox, Lineman Spec.    
FOR THE EMPLOYER:
Kelly Nuckols, President and CEO,
Izell White, VP Human Resources
Richard

            An arbitration hearing was conducted November 6, 2001 at the Evansville Regional Airport at Evansville, Indiana.  The issue before the arbitrator related to the assignment of occasional Quality Control work to the grievant, a bargaining unit member.  The parties were unable to frame a mutually submitted issue. Thus the task of forming the issue falls to the arbitrator.  The basic question before the arbitrator is: “Was the Collective Bargaining Agreement violated when management assigned the grievant to occasionally perform an MPRS review?  If so, what shall the remedy be?”

            Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.  Both advocates presented their respective cases competently and professionally.  Both parties submitted post hearing briefs which convincingly summarized the positions of the respective parties.  All evidence, arguments and views were considered by the Arbitrator in reaching the decision stated herein.

            In addition the Union Advocate provided the grievant with an opportunity to add any information he felt had not been submitted.  The grievant declined to do so stating that he believed he had been properly represented by his union.

            In that this grievance deals with a matter of contract interpretation, the union presented its case first.

            The grievance states:

            On 2/15/01 the Company informed the union that Mr. Chris Rothrock is to start performing Non bargaining unit work, that is not within the scope of our labor agreement.  We want the Company to stop working Mr. Rothrock in a Non bargaining unit position and returned to his job of maintenance.”

            In support of the statement of grievance the Union cited an alleged violation of  several sub-sections of Article IX of the Collective Bargaining Agreement.

            On March 27, 2001 Human Resources Director Michael J. Savage denied the grievance stating “In response to the grievance hearing on March 16, 2001 we have reviewed the issues raised by the union and the Company believes that it is appropriate for the employee to perform the work being requested and therefore the grievance is denied.”

            The case proceeded to arbitration.  At the hearing the parties agreed that the matter was properly before the arbitrator for determination.

FACTUAL BACKGROUND:

            The Food and Drug Administration, which regulates the production of medical gases, criticized the methods used to monitor the production of medical gases at the MG Industries Plant in Mt. Vernon, Indiana.

            Early in 2001 the Company initiated a new method of review.  The Company determined to have employees other than the operators, review the production prior to the release of the load of gas.  This new procedure was called a Medical Product Release Specialist review. (MPRS). This procedure appeared to meet the FDA requirement of a “second person quality review.”

            The new procedure was memorialized in a Standard Operating Procedure Document titled: TRANSPORT LOT RELEASE AND CERTIFICATE OF ANALYSIS (COA) COMPLETION.

            The Company determined that the Plant Manager could not conduct a second person quality review due to an inherent appearance of a conflict of interest.  Likewise, the operator on duty would not qualify to serve as a “second person.”

            The company identified and assigned the Assistant Manager, the truck mechanics, the district manager, the clerical person and the grievant, who is a maintenance technician, to be trained to conduct the second person reviews.

            The Bargaining Unit has six members.  Five are operators and the sixth is the grievant.

            All persons assigned second person review duties are outside the bargaining unit except the grievant.

            The grievant was assigned second person review duties six times in nine months.  Most of the assignments were for training purposes and were done under the supervision of the Assistant Manager.  At least one was a “real” assignment in which the grievant performed the review and released the load by himself.

UNION POSITION:

            The union views this work as either being bargaining unit or non bargaining unit work.  Their first position is that it is not bargaining unit work.  As such the grievant should not be assigned to perform non-bargaining unit work.  The Union looks to Article IX of the Collective Bargaining Agreement to buttress their view.

ARTICLE IX                                                                                                                                          

MANAGEMENT RIGHTS

Section 4       The Company agrees to not assign non‑bargaining unit employees to perform bargaining unit work except in the following cases:

                                     a.         In the case of emergencies;
                                     b.
         In the interest of training or instruction of any personnel;
                                     c.
         In the event of turn around work, major breakdown, or
                                                 during installation or erection of new facilities.

The provisions of this section shall not apply in the event that their application shall result in the layoff of any present employee.

            The union views the work as supervisory in nature and is concerned that the grievant could be put in a position where his performance of the work could lead to discipline for a brother of sister bargaining unit member.

MANAGEMENT POSITION:

            Management believes under the current Collective Bargaining Agreement it has every right to assign occasional duties to a member of the bargaining unit such as the work assigned in the instant case.

            Management argues that if the agreement were completely silent on the subject, then the rights reserved to management would permit such an occasional assignment.

            The company also argues that the Agreement contains specific references which permit and authorize the assignment.

            From management’s point of view the relevant sections of the Agreement are:

ARTICLE I. RECOGNITION

Section I

The Company recognizes the Union as the exclusive representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, of the employees in the following bargaining unit: All Production and Maintenance employees working at the Company's plant located at Mount Vernon, Indiana, excluding all office clerical employees, all professional employees, all guards and all supervisors as defined in the Act as amended.

ARTICLE III. GENERAL PRINCIPLES

Section I

Both parties recognize the necessity for the Company's continuing efforts to manufacture its products efficiently and economically, and to that end intend that nothing herein shall be construed to interfere with the Company's efforts to maintain and constantly improve the efficiency of its operations, except to the extent that such activity may be otherwise expressly restricted by this Agreement

ARTICLE IX. MANAGEMENT RIGHTS

Section I

The management of the plant and the direction of the working forces are vested exclusively with the Company. The Company retains the sole right to hire, discipline, discharge, lay off, assign, promote and transfer employees and to schedule the hours of work and the number of hours to be worked and to determine the necessary compliment of employees and classifications to be used, establish work standards, establish conduct standards, and other management functions consistent with the provisions of this Agreement.

Section 2

The listing of specific rights in the clause or elsewhere in the Agreement is not intended to be, nor shall be considered restrictive of or a waiver of any of the rights of Management not listed, whether OF not such rights have been exercised by the Company in the past. The Company in the exercise of these rights shall observe the provisions of this Agreement.

            Management notes that since this is a grievance based upon contract interpretation, the burden of proof rests with the Union.  It is management’s belief that the union has failed to prove any violation of the agreement.

            Management also argues that the Company’s past practices support the assigning of non-bargaining unit work to unit employees.

DISCUSSION:

            The Union asks the arbitrator to rule on the nature of the work being performed.  Is it bargaining unit work or non-bargaining unit work?  There appears to be no disagreement on the question.  The Union asserts that the MPRS work is non-bargaining unit work.  Management agrees.  This arbitrator sees no reason to disagree with the conclusion of the parties.

            The disagreement arises about the application of that conclusion.  Does the fact that the work is non-bargaining unit work mean that a bargaining unit member can never be asked to perform it?

            The Collective Bargaining Agreement clearly establishes the benchmark against which the question must be examined.

            Article III states: “Both parties recognize the necessity for the Company’s continuing efforts to manufacture its products efficiently and economically, and to that end intend that noting herein shall be construed to interfere with the Company’s efforts to maintain and constantly improve the efficiency of its operations, except to the extent that such activity may be otherwise expressly restricted by this Agreement (emphasis added)[1]

            Does the Agreement, then, “expressly restrict” such assignment?

            The Union asserts that Section 4 of Article IX provides that restriction when it states “The Company agrees to not assign non-bargaining unit employees to perform bargaining unit work except in the following cases….”[2]

            This language addresses a reverse situation.  If all parties agreed that the work was bargaining unit work and some of it was being done by exempt employees, then we would need to give careful consideration to this section.  This is not the situation in this case.

            The Union and the grievant also states a concern that performing this occasional duty puts the employee in the position of performing supervisory work.  There is no evidence to support that contention.  The employee is not asked to evaluate the work of fellow bargaining unit employees or to discipline or direct them.

            Safety is a joint concern of labor and management and the second person review appears to be an additional step to assure a safe product.  Any employee would have a responsibility to report unsafe or inaccurate work regardless of their membership or non-membership in a bargaining unit.

            The Union would have us believe that a bargaining unit member can only perform work that has been clearly identified as bargaining unit work.  The Collective Bargaining Agreement simply does not support such a conclusion.

            Likewise, no long term past practice was introduced to indicate that such had ever been the case.  In fact, the only mention of a past practice was to indicate a time when a Bargaining Unit Member had served as acting Plant Manager.  While this Arbitrator does not find this practice to be controlling, it does indicate that apparently no practice to the contrary has ever been established.

            Finally, the nature of the work assigned in this case is so de minimus in nature as to not offend the letter or spirit of the Collective Bargaining Agreement even if one could advance a theory that there is a restriction against ever performing non-bargaining unit work.

            Arbitrator Lamont Stallworth, in a 1998 case, discussed the “de minimus” assignment of Quality Control work to another supervisory employee.  In it he concluded:

“Employer did not violate collective-bargaining contract when it assigned  receiving inspection overtime work to precision layout checker instead of  quality control inspector, where work checker did was de minimus; he spent at  most two and one-half hours inspecting six batches of work when there was down  time in his primary area, while first shift quality control inspector inspected  32 batches of incoming parts during his eight-hour shift.”[3]

MG Industries at Mt. Vernon, Indiana is a small plant.  There is no dispute that the Food and Drug Administration demanded a change in the release process for Medical gasses.  The Company formulated a methodology that would put them in compliance with this Federal requirement.

The Company, under the current Collective Bargaining Agreement, and under the basic right of management to operate in an efficient manner, can establish a procedure to assure compliance so long as it does not violate a provision of the Collective Bargaining Agreement.  This Arbitrator finds no such restriction in the Agreement.

For the reasons stated herein, this Arbitrator finds no violation of the agreement.

AWARD:

            The grievance is therefore denied.

            It is so ordered this 21st. day of December, 2001 at London, Ohio.

_____________________________
N. Eugene Brundige, Arbitrator



[1]  Collective Bargaining Agreement, By and Between MG Industries, Mt. Vernon, Indiana and Chauffeurs, Teamsters and Helpers, Local Union No. 215, Evansville, Indiana, Effective July 1, 1998 through June 30, 2003, Article III, General Principles.

[2] Collective Bargaining Agreement, By and Between MG Industries, Mt. Vernon, Indiana and Chauffeurs, Teamsters and Helpers, Local Union No. 215, Evansville, Indiana, Effective July 1, 1998 through June 30, 2003, Article IX, Management Rights.

[3] In re AGCO Corporation and UNITED STEELWORKERS OF AMERICA, LCOAL 4839, 111 LA 296,  July 3, 1998, FMCS Case No. 97/16210

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