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Title: Jackson Purchase Energy Corporation and International Brotherhood of Electrical Workers
Date: January 25, 2002
Arbitrator: 
N. Eugene Brundige
Citation: 2002 NAC 138

OPINION AND AWARD

 

In the matter of Voluntary Arbitration

Between

International Brotherhood of Electrical Workers, AFL-CIO Local 816

And

Jackson Purchase Energy Corporation

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 Sherrill, VP Distribution

An arbitration hearing was conducted January 7, 2002 at the Paducah, Kentucky headquarters of Jackson Purchase Energy Corporation.  The parties have a clause in their Collective Bargaining Agreement which establishes a tri-partite Arbitration panel.  The other two members in addition to the neutral Arbitrator, were Richard Sherrill for management and Gary Seay for the Union.

After some discussion the parties decided to waive the operation of the tri-partite committee and accept the decision of the neutral Arbitrator as final and binding.

The waiver executed by the parties read:

Entered into this 7th. Day of January, 2002 at Paducah, Kentucky, by and between Jackson Purchase Energy Corporation and IBEW Local 816.

Notwithstanding the provisions of Article VI of the Collective Bargaining Agreement between the parties, they agree that the decision of the arbitrator in the instant case will be final and binding without exercise of the tri-partite arbitration committee.

The waiver was signed by Richard Sherrill on behalf of management and by Gary Seay on behalf of IBEW.

            The parties elected to present their respective cases in a very informal manner.  Both sides did so in a cordial, professional and competent way.

            After some discussion the parties agreed that the issue the Arbitrator is to decide is:  “Is the Collective Bargaining Agreement being violated when management does not compensate those employees working on-call at the premium rate for the first Friday they work following the beginning of on-call status on Thursday?  If it is, what shall the remedy be?

            The relevant section of the Collective Bargaining Agreement in question is  Article VII, Section 26.  It reads as follows: 

“The Cooperative will institute the on‑call plan whereby employees will be designated to be available for emergency calls. These on‑call allocations are to be rotated over the employees in the classifications meeting the requirements of emergency work.

The on‑call crew shall report for work on Saturday and Monday through Thursday of the workweek and be off on Friday, Saturday and Sunday following their on‑call duty. They shall be on‑call from Thursday, 3:30 p.m., until the following Thursday, 3:30 p.m. The crew that is designated as the on‑call crew shall have a premium rate according to the following formula: forty (40) hours regular rate plus twelve (12) hours regular rate all of which is divided by forty (40) hours shall equal the premium rate. Any hours worked in excess of forty (40) in a week or in excess of eight (8) in a day shall be compensated for at a rate of one and one‑half (1 1/2) times the premium rate except that work performed on Sundays or holidays will be two (2) times the premium rate. In the event a holiday occurs during the on‑call period, the employee may select a day of the following week to celebrate the holiday. This would also apply to the on‑call crews coming on duty Thanksgiving afternoon.”

            The parties also made reference to Article VII, Section 1 which defines the standard work week.  It reads:

“ARTICLE VII HOURS, WAGES, AND WORKING CONDITIONS

1. The work week shall run from 12:01 a.m., Saturday through 12:00 midnight, Friday. All employees except the on‑call crew shall report for duty Monday through Friday. The on‑call crew shall work as provided in Article VII, Section 25. At the request of any individual securing prior approval from his supervisor, make‑up time, compensated at regular rate of pay, may be granted if work is available on Saturday. Line crews will report to work at 7:00 a.m., at their respective headquarters and return to their respective headquarters at 3:30 p.m., quitting time. However, beginning the second week of June and ending the Saturday before Labor Day, bargaining employees will report to work at 6:00 a.m. and end at 2:30 p.m. The changed work schedule will not apply to the Meter Reader, Meter Tester and Electronic Repairman positions.

Employees shall be entitled to thirty (30) minutes time out for lunch. Employees or crews may take the thirty (30) minute lunch in the manner they choose at the time they desire, including the use of public facilities.”

            The remedy requested by the union is that each employee who has worked on-call since the date of the grievance, be compensated for eight hours at premium rate for each cycle of on-call worked, until the present, and that management be required to compensate for each Friday during the on-call week, at premium rate.

BACKGROUND:

             Jackson Purchase Energy Corporation is a cooperative that delivers energy to several counties in western Kentucky.  IBEW Local 816 represents the members of the bargaining unit.

            The parties have had a collective bargaining relationship since 1960.  For the most part their relationship is mature and professional.  They have tried to resolve the instant issue but continue to see the matter differently.

            Two person teams of employees who volunteer for “on-call duty” work a different schedule on a rotating basis every six or seven weeks in order to assure there are persons available for emergency work outside of regular business hours. 

            The method by which these persons are compensation has not been changed for several years.

            Recently a new manager (Rich Sherrill) changed an unrelated practice based upon his interpretation of the Collective Bargaining Agreement.  [The Arbitrator has not been asked to rule upon the correctness of that change].

            The Union did not grieve this unrelated change.  In the process of discussing this change, employees re-read Article VII, Section 26 and concluded that on-call crews have not been properly compensated under this section for the first Friday of the on-call period.  Thus, the instant grievance was filed and advanced to arbitration.

            The remedy requested by the Union is that on-call crews be compensated for eight (8) hours premium pay for each Friday on on-call since the date of the grievance.  (September 25, 2001)

            Management contends the matter is not as the union views it.   They believe that section 26 establishes the formula by which the rate of premium pay is established.

            Management’s view is that the reference to on-call status starting at 3:30 Thursday merely establishes when the actual act of being on-call for emergencies begins.

            Management views the work on Friday as a continuation of the 40 hour work week that began the previous Monday, and thus the rate should be at regular time.

            Management noted that the employee on-call gets a full five days work at the higher premium rate.

DISCUSSION:

There are several sub-issues that must be considered in deciding this case.  1.  The union believes the language is very clear and unambiguous.  Is it?

2.    Notwithstanding what is found relating to sub-issue No. 1, can the union force a change in an operational procedure that has been accepted by all parties since at least 1976.

There is no factual disagreement in this case.  The matter is strictly one of contract interpretation.

      Let us first examine the language.

. The Cooperative will institute the on‑call plan whereby employees will be designated to be available for emergency calls. These on‑call allocations are to be rotated over the employees in the classifications meeting the requirements of emergency work.

The on‑call crew shall report for work on Saturday and Monday through Thursday of the workweek and be off on Friday, Saturday and Sunday following their on‑call duty. They shall be on‑call from Thursday, 3:30 p.m., until the following Thursday, 3:30 p.m. The crew that is designated as the on‑call crew shall have a premium rate according to the following formula: forty (40) hours regular rate plus twelve (12) hours regular rate all of which is divided by forty (40) hours shall equal the premium rate. Any hours worked in excess of forty (40) in a week or in excess of eight (8) in a day shall be compensated for at a rate of one and one‑half (1 1/2) times the premium rate except that work performed on Sundays or holidays will be two (2) times the premium rate. In the event a holiday occurs during the on‑call period, the employee may select a day of the following week to celebrate the holiday. This would also apply to the on‑call crews coming on duty Thanksgiving afternoon.”

A neutral reading of the language, without benefit of history or experience, would tell this arbitrator that the on-call work will be rotated among the employees in the appropriate classifications who meet the requirements.  There is no apparent disagreement over the implementation of this part of the language.

      The next sentence is also clear.  The persons comprising the on-call crew shall report to work on Saturday and Monday through Thursday of the period they are designated as being on the on-call crew.  Again, there is no problem with this language.

      These individuals then do not report to work on Friday, Saturday or Sunday following their on-call duty.  Again, the language does not lack for clarity.

      Equally clear is the statement that the crew serves in on-call status from the first Thursday at 3:30 until the next Thursday at 3:30.

      The language goes on to define that persons shall be paid at a premium rate and determines how that rate is established.

      The problem is apparent.  The language is silent regarding what happens to the on-call crew on the Friday following the Thursday when on-call status begins.  There is no question what happens on Saturday and the next Monday through Thursday.  The crew is compensated at the premium rate because the contract specifically names those days (emphasis added).

      The Union notes the fact that employees go into on-call status at 3:30 Thursday.  Thus, it makes sense that a Friday which falls within the on-call period would also be compensated at the premium rate.

      When the parties can both make a reasonable argument to support their respective interpretations, it often means the language is unclear and ambiguous.

      I find this to be the case in the instant circumstance. 

      Management exhibit three listed the various rewritten versions of  this section since 1961.

      It appears that when the parties changed the language to establish the Thursday to Thursday schedule they may have created the ambiguity in the current section.

      When an arbitrator is faced with ambiguous language it is common to turn to the intent of the parties and custom and past practice to determine its meaning.

      Of the persons participating in this arbitration only Mr. Seay had been present through enough of the history of the bargaining between the parties to shed any light on the intentions of the parties.  His testimony was helpful and forthcoming but did not establish any unilateral intent different from the practice the parties have been exercising.

      Even if the language was crystal clear, the problem still exists that the union has, by inaction, consented to the current practice for a period of nearly twenty five years. 

      Arbitrator Charles C. Killingsworth, in one of his cases where the parties had operated under a provision for three years before requesting an arbitrator to interpret it, found: “a context of practices, usages, and rule of thumb interpretations by which the parties themselves had gradually given substance to the disputed term.”[1]

      In the book, How Arbitration Works, by Frank and Edna Elkouri, which is considered to be the premier text on labor arbitration in the United States, it states:

      There would have to be very strong and compelling reasons for an arbitrator to change the practice by which a contract provision has been interpreted in a plant over a period of several years and several contracts.  There would have to be clear and unambiguous directions in the language used to effect such a change.”[2]

      In a case very much on point Arbitrator Walter G. Seinsheimer, considered a union grievance wherein the union challenged the amount of a supplemental employment benefit but only after accepting the lower amount for a year before filing the grievance.

      In that case the Arbitrator stated: “If the union truly believed that the 85% was due the employees on their first week of layoff irregardless of the amount in the fund, it should have checked into the matter.  In other words, by its continued acceptance through failure to protest for a whole year during which 262 employees received less than 85% for their first week of layoff, the Union has, to paraphrase what the Elkouris’ said, made the Company’s interpretation mutual.”[3]

      There is one additional contract interpretation doctrine that needs to be noted.  In Latin the phrase is “expressio unius est exclusio alterius.”  This simply means “to express one thing is to exclude another.”  The fact that the contract language is very clear that the on-call crew reports to work on Saturday and on Monday through Thursday and does not list Friday, can be interpreted to mean that if the parties intended to pay premium pay for Friday they would have added Friday to the language.

      It is easy to understand the position of the Union.  Apparently the parties have worked hard to have a good and productive relationship.  They are to be commended for that effort. 

      Even though this positive relationship appears to continue, the arrival of some new managers led to changes.  One of those changes was the application of another contract provision (a matter not before this arbitrator) in a way which was not pleasing to the union membership, caused the members to examine their Collective Bargaining Agreement more carefully.

      They found what they believed to be a misapplication of this section and attempted to get management to change its practice regarding this section as well.

      Management did not read the contract in the same way the union did and was unwilling to change a decades old practice.

      It is an appropriate use of arbitration to resolve such differences.

OPINION AND AWARD:

            After reviewing the Collective Bargaining Agreement and all documents submitted along with the testimony and arguments of the parties, it is my conclusion that the Collective Bargaining Agreement has not been violated when management does not compensate those employees working on-call at the premium rate for the first Friday they work following the beginning of on-call status on Thursday.

The grievance is denied.

It is so ordered at London, Ohio this 25th. Day of January, 2002.

____________________________
N. Eugene Brundige, Arbitrator

 



[1] Eastern Stainless Steel Corp., 12 LA 709, 713 (1949)

[2] HOW ARBITRATION WORKS, Fifth Edition,  Voltz, Marlin M., Goggin, Edward P., 1997, American Bar Association and The Bureau of National Affairs, Washington, D.C.

[3] In re DAYTON PRESS, INC. (Dayton, Ohio) and Graphic Arts International Union 199B, 76 LA 1253, (1981).

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