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Title: Employer and Union
Date: July 3, 2002
Arbitrator: Philip Kienast 
Citation: 2002 NAC 115

 

In the Matter of Arbitration

          between

Employer

          and

Union

 

OPINION
AND
AWARD

 

                                                                                            

            

OPINION

            This proceeding is in accordance with the parties’ Agreement.  A hearing in this matter was held on May 28, 2002 and the record closed upon receipt by the Arbitrator of post hearing briefs on July 3, 2002.  The parties stipulated the issue for decision as:

Did the Employer violate the Agreement in the way it scheduled Mark Kiesel in the second pay period of November 2001 and Gina Such in the second pay period of December 2001?

If yes, what is the appropriate remedy and how in the future should the Employer use seniority in scheduling?

Pertinent Agreement Provisions

17.09  LOST WAGES  If an employee is not dispatched in accordance with the seniority provisions of Rule 26 and the dispatch provisions of Rule 27, the employee is due the difference in wages of the higher classification and the wages the employee earned during that assignment, or if not dispatched the wages that would have been earned, except where lost wages are specifically excluded.

RULE 26 – SENIORITY

26.01  The Employer recognizes the principle of seniority in the administration of promotions, transfers, layoffs and recalls.  Employees’ seniority rights shall be applied to the award of bids in accordance with Rule 28, and shall be applied to dispatch and job assignment in accordance with Rule 27.

RULE 27 – DISPATCH

27.01

(A) In the application of seniority under this Rule, if an employee has the necessary qualifications to perform in accordance with job requirements, seniority shall prevail.

. . . .

(E) REDUCTIONS IN FORCE

. . . .

(4) The following shall apply for the administration of seniority rights during reduction-in-force periods:

            (a) Displaced Regularly Assigned Employees shall accept available relief assignments within their job classification provided no assignment is available in Rule 16.09.

            (b) If no assignment is available within their job classification they will temporarily displace the most junior employee in the respective classification.

            (c) Displaced Regularly Assigned Employees working in the Southeast System shall not normally be expected to have to temporarily displace junior employees within the Southwest System.  The same applies for DRAEs working the Southwest System.

Background

            The Alaska Marine Highway System (AMHS) operates a drastically reduced schedule for eight months of the year following the summer season.  Regularly assigned employees who are impacted by this annual reduction in force are designated as displaced regularly assigned employees (DRAE).

            DRAE are dispatched to vessels twice each month, the 1-15th and the 16th to the end of the month in order of seniority to the first available job in their classification with one exception.  If an opening exists in a higher classified job for which the employee is qualified then the employee is assigned to that job even if it results in fewer days of work in a bi-monthly pay period unless the employee has indicated on his dispatch selection form (DSF) that he does not want to be dispatched to a higher classification (J7).

            Mark Kiesel, one of the two grievants in this case, normally worked as a senior purser.  Because of a vacancy for a chief purser he was dispatched starting November 30 to that position because he was the most senior qualified employee.  Kiesel claims he was harmed by being dispatched at the end of the pay period as a chief purser rather than dispatched as a senior purser on November 16.

            The other grievant, Gina Such, was dispatched to the higher classification of senior purser on December 30 when a person with less seniority was dispatched as a junior purser on December 16.  She thereby lost several days of pay in the second pay period in December.

            The Union maintains that because both grievants were dispatched late in the pay period they both were deprived a full pay check for that pay period.  The Union argues they should have had the choice to decline the upgrade and opt to take the dispatches earlier in the pay period given to employees junior to them.  The Union contends that in the past senior employees have been given a choice as to which assignment they preferred.  It maintains the Employer failed to follow this past practice in its dispatch of Mr. Kiesel and Ms. Such.  It asks the Employer make the grievants whole by restoring the vacation credits they used to cover the work days missed in their respective pay periods.

            The Employer contends the language of the Agreement is clear in Rule 17.09 that failure to assign the most senior qualified employee to a vacancy in a higher classification results in a penalty for the Employer.  Accordingly, it argues it is manifest in the Agreement that the mutual intent of the parties was that the most senior eligible employee be dispatched to an upgraded opportunity.

            The Employer also argues the Union has failed to prove a binding past practice of providing case by case choice as to whether to accept an upgrade.  It maintains that if choice were the accepted way of doing things why would this not be recognized on the DSF created through discussions within the Labor-Management Committee.  It notes the DSF only allows employees to make a choice three times per year and indicate they want no upgrades or only upgrades to certain positions.  No option is provided on the form to ask for consultation on whether an upgrade is desired for each pay period.

Analysis and Conclusions

            Rule 26.01 expresses the mutual understanding of the parties that the Employer will use the principle of seniority in regard “to dispatch and job assignments in accordance with Rule 27.”  Rule 27.01 states unequivocally that “seniority shall prevail” if the employee is qualified.  When this language is viewed in conjunction with Rule 17.09 it becomes unmistakably clear that if the seniority rule was not followed in dispatch then the Employer would be required to make the grievant whole for wages lost as a result of the out of seniority dispatch.

            It is a well established rule of contract construction that an agreement be read as a whole such that each section can be given force and effect consistent with all the other parts.  The presence of Rule 17.09 is clear and convincing evidence the parties directly address the subject of dispatch to a higher classification and concluded only that failure of the Employer to give the senior employee the dispatch to a higher classification would result in the Employer paying both the person dispatched and the bypassed senior employee at the higher classification pay rate.  The parties could have provided that Rule 17.09 would not apply if the senior employee had previously declined to be assigned to the higher classification.  This strongly suggests the parties did not anticipate at the time this language was adopted that the senior employee would be offered a choice of dispatch options.  Accordingly, the Arbitrator concludes that the express terms of the contract make it manifest the Employer is required by the Agreement to dispatch the most senior qualified employee to a classification upgrade opportunity.

            The remaining question is whether or not the parties have amplified or amended the mutual understanding reached in this Agreement language.  The Union asserted that dispatchers in the past have contacted senior employees to see if they wanted the upgraded dispatch.  It presented three witnesses to attest to this practice.

            David Morris testified that a few years ago he worked six months as a dispatcher and made it his practice “to ask” an employee if they wanted an upgrade.  He did not testify as to whether other dispatchers did the same.  More importantly, he did not testify that he nor others he knew were routinely “asked” by dispatchers if they wanted an upgrade.

            Mr. Morris also testified he was a member of the Union negotiating team for the current Agreement.  He stated the Union brought up the issue of dispatch during the last week of the pay period and it was discussed but no change was agreed to in the language of the Agreement.

            Mr. Morris further testified a Union-Management committee had been working for a couple of years on revising the DSF to better inform dispatchers of an employee’s preferences.

            Chief Purser James Beedle testified that in his 25 years of service he has been offered and taken upgrades but never told he must take an upgrade.  He did not testify that dispatchers always discussed an upgrade dispatch with him prior to making the dispatch.  Also, he did not testify regarding the treatment normally accorded other crew members on the matter of dispatches to higher classifications.

            Richy Deising has 23 years seniority and currently works as an ordinary seaman.  In addition, he is a ship delegate and Union Executive Board member.  He testified dispatches to higher classifications are rare.  He did not testify that he or other crew members were routinely given a choice about whether they wanted to be dispatched to a higher classification.

            Ginger Griffin had a 30 year career with the Alaska Marine Highway System, first as a dispatcher and later as a personnel officer.  She testified that grievances have been filed in the past pursuant to Rule 17 when senior qualified crew members were not dispatched ahead of a junior employee to a higher classification.  she testified that if she were asked by the dispatchers whether senior persons should be given a choice over an upgrade she would have directed them not to offer such a choice, but rather dispatch the most senior qualified crew member to the upgrade.  She also testified she was a member of the Labor-Management committee which created and revises the DSF.  She states the form permits an employee to indicate they do not want to be upgraded.  She also testified that upgrades were rare during reduction in force periods.

            Based on the foregoing evidence this Arbitrator finds there is not clear and convincing evidence to establish the practice of allowing employees to choose at the time of dispatch whether they want an upgrade.  It is well established in the common law of arbitration that an alleged past practice to be binding must be founded on clear evidence of mutuality between the parties that the practice was the ordinary and expected way certain matters would be handled.  Based on the testimony provided by Union witnesses there is insufficient evidence that the ordinary and expected way the dispatch office would fill upgrade opportunities was to consult the most senior employee on a case by case basis if they wanted the upgrade.  The party alleging the binding practice has the burden of proving both parties understood the practice as the ordinary and expected way dispatches to higher classifications would be handled.  The Union has not met this burden in this case.  Accordingly the arbitrator must deny the grievances.

            In the final analysis, the issue of choice on upgrades is a matter for future discussions between the parties.  Given the current DSF permits an employee to choose whether or not he or she wants to be dispatched to a higher classification, it appears that choice would be expanded to allow an employee to deny dispatch to a higher classification if it results in loss of work days in a pay period.

            The Union failed to prove the existence of a binding past practice it asserted existed.  Therefore, the Union is deemed the losing party and is responsible for the payment of the Arbitrator’s fees and expenses in accordance with Rule 14.

AWARD

1.         The Employer did not violate the Agreement in the way it scheduled Mark Kiesel in the second pay period of November 2001 and Gina Such in the second pay period of December 2001.

 

2.            Pursuant to Rule 14 the Arbitrator directs the Union to pay the fees and expenses of the Arbitrator.

 

 

____________________________
Philip Kienast

 

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