Title: Hawaiian Electrical Company and International
Brotherhood of Electrical Workers, Local 1260
BEFORE ARBITRATOR MICHAEL F. NAUYOKAS
STATE OF HAWAII
ARBITRATION DECISION AND AWARD
IN THE MATTER OF THE ARBITRATION BETWEEN
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
LOCAL 1260 AND
HAWAIIAN ELECTRIC COMPANY
(THE GRIEVANCE OF CRAIG ONO)
This matter came on to arbitration at hearing held on January 23, 2002. The International Brotherhood of Electrical Workers, Local 1260 (“Union”) was represented by Sean Kim, Esq., and Hawaiian Electric Company (“Employer” or “HEC” or “Company”) was represented by Robert S. Katz, Esq. The Arbitrator made a full disclosure of his prior relationships with both the parties and their counsel, and any objections were specifically waived by the parties to the arbitration through their counsel. The parties stipulated to procedural and substantive arbitratbility of the controversy and to the fact that that the arbitration was properly set following the grievance procedure outlined in the Collective Bargaining Agreement (“CBA” or “Agreement”) between the Employer and the Union effective November 1, 1998 through and including October 31, 2000 (Joint Exhibit 1) which governs this subject. The arbitration was conducted pursuant to Section 22 of the CBA (“Arbitration”). All parties were fully, fairly, and well represented at the arbitration hearing and subsequently.
Pursuant to the documents, testimony and arguments submitted prior to and during the arbitration hearing, the issues presented to the Arbitrator are:
Issue No. 1:
Did HEC violate Section 11C of the CBA when it temporarily transferred Craig Ono (“Ono” or “Grievant”) and timely posted notice of the transfer, but failed to give him personal notice?
Issue No. 2:
If so, what shall be the remedy?
SUMMARY OF FACTUAL BACKGROUND
The Employer is a public utility which provides electricity throughout the State of Hawaii. Craig Ono (“Ono” or “Grievant”) was employed by the Employer as a Lineman in the Construction and Maintenance Department. Ono is currently employed by the HEC, and has been employed by HEC for nine years.
Ono informed HEC that he was going to be taking leave from June 11, 2001 through June 15, 2001. Prior to taking his vacation leave, Ono was regularly assigned to the Waiau base yard. Ono testified that prior to going on vacation leave, he was not advised by management representatives that he would be temporarily transferred to a different work base upon return from his vacation.
Ono testified that in June 2001, he lived with his parents. In June 2001, he traveled to Kauai for his vacation. He returned from vacation on Sunday, June 17, 2001, but was not contacted at home about the base yard change.
When Ono returned from vacation, he reported to the Waiau work base shortly before 7:00 a.m. Upon arrival at the Waiau work base, Ono’s supervisor informed him that he had been temporarily assigned to the Ward Avenue work base. Ono’s supervisor told him to take his car and tools and drive to the Ward Avenue work base.
Ono reported to work at the Ward base yard after being advised to do so by his supervisor, and continued to work there for one week. Ono testified that prior to Monday, June 18, 2001, when his supervisor advised him of the change in base yard assignments, no one from HEC personally informed him of the change in work base assignments.
Ono further testified that he felt he had not been notified of the change in base yard until he showed up for work at the Waiau work base on June 18, 2001. Specifically, Ono testified, “I feel that I wasn’t notified until Monday when I showed up to work, and then they told me that I supposed to report to Ward Avenue, so I feel that was when I was notified. So, if it’s based on the contract, the three days, you need three days prior notice, then I think that’s the first day that I was notified.”
The only remedy that Ono seeks for HEC’s alleged failure to provide
three days prior notice of the change in work base assignment is three days of
one-half times the straight time rate for the three days that Ono claims he did
not receive the notice from HEC.
The applicable CBA, in part, provides:
SECTION 2. AGREEMENT MAY NOT BE AMENDED EXCEPT BY WRITTEN DOCUMENT
This agreement may be amended at any time by mutual consent of the parties hereto. However, it is agreed that no provision or term of this agreement may be amended, modified, changed, altered or waived except by written document executed by the parties hereto.
SECTION 5. RIGHT OF MANAGEMENT
The supervision and control of all operations and the direction of all working forces, including the right to hire, to suspend or discharge for proper cause, or to promote employees or to transfer employees or to relieve employees from duty because of lack of work, or for other legitimate reasons, are bested exclusively in the Company, subject to any specific provisions to the contrary contained in this agreement.
SECTION 11C. WORK BASE
Each employee shall be assigned to a permanently established work base. Work base assignments will be made for periods of not less than six months duration. The following are the designated work bases:
Traveling Crew (Power Supply Operations & Maintenance)
Traveling Crew (Construction & Maintenance)
When other non-traveling crew employees of the Construction & Maintenance, Support Services (Stores) Departments and the Maintenance and Support Services for the Power Supply process areas are temporarily assigned to the Traveling Crew or another designated work base, three-days notice of such assignment will be posted. After the three-days posted notice is given, the employee will be paid a premium of 1.00 for each hour worked or $8.00 per day, whichever is greater. If the three-day posted notice is not given, the affected employee will be paid an additional one-half times the straight time rate for all hours worked for each day that such notice is lacking. It is not to be considered a temporary work base assignment when an employee travels on Company time. (emphasis added).
SECTION 22. ARBITRATION
It is agreed that only grievances involving the interpretation or application of this agreement may be submitted to arbitration…
b. The arbitrator shall confine the decision to the issues submitted as defined and described by the submission agreement and the arbitrator shall be prevented from adding to or subtracting from the express terms of this agreement and the arbitrator shall be bound entirely by the record presented in the form of evidence and argument at the arbitration hearing.
Collective Bargaining Agreement (emphasis added).
POSITIONS OF THE PARTIES
The Employer’s position is that it is entitled to dismissal of the grievance, arguing that:
1. The fact that Ono’s supervisor also tried as a courtesy to give Ono actual notice of the work base change or that on other, but not all, occasions similar courtesies were extended to some, but not all, other employees being temporarily transferred to a different work base, does not change what HEC is required to do by Section 11C.
2. HEC maintains the grievance must be denied because: (1) the Agreement explicitly states that in instances of a temporary work base change, management will provide three days notice of the assignment by posting, which it fulfilled; and (2) HEC’s application of the three day notice requirement is consistent with the explicit contractual language of the Agreement and the parties’ past practice.
3. The Grievant’s own testimony, on cross-examination, acknowledged that reasonableness of HEC’s interpretation of the notice requirement in Section 11C and its fulfillment of the contractual notice requirements. Therefore, the Union has failed to prove that HECO violated Section 11C.
4. Ono admitted being familiar with Section 11C of the Agreement. Further, he agreed that Section 11C only required HEC to provide three days notice of assignment to the employee by posting the change in the base yard.
5. When presented with Joint Exhibit 9, the Construction and Maintenance Department Employee Work Assignment Schedule (April 230, 2001 to June 24, 2001), Ono admitted that the assignment posting showed the work schedule for the week that he returned from vacation. Specifically, Ono acknowledged that page 2 of the work schedule indicated that he was being temporarily transferred to the Ward base yard. However, Ono did not know when the work schedule was posted, nor did he check to find out any time when it was posted.
6. John Jumalon, the IBEW Local 1260 Business Representative (“Jumalon”), also admitted that Section 11C did not address contacting employees by phone and only required the company to post the notice of change at the work base.
7. Jumalon agreed that the work schedule (Joint Exhibit 9), was posted on June 14, 2001. Thus, neither the Union nor Ono disputed HEC’s representation that the work schedule was posted on June 14, 2001, at least three days prior to the change in work base.
8. Jumalon testified that Section1 1C did not set forth an exception from the notice posting requirements for employees who were out on vacation.
9. Ono testified that the contact telephone number he provided to HECO (488-1097) (Employer’s Exhibit 1 – Dated December 15, 1999) had not changed and was correct.
10. Neither Ono nor Jumalon testified that Ono was not able to or was prevented from calling HEC or one of Ono’s co-workers to find out his work schedule for the week he returned from work.
11. HEC’s interpretation of the notice procedure contained in Section 11C is reasonable and appropriate.
12. The Union cannot meet is burden of proof. Not only was HEC’s interpretation of the Section 11C notice requirement reasonable, but HEC fully performed the specific notice requirements contained in Section 11C of the Agreement.
13. The notice language contained in Section 11C is clear and unambiguous. It provides that, “three-days notice of such assignment will be posted.” There is no reference to any other type of notice except for posting of the work schedule three days in advance of the change in work base.
14. The Union does not dispute that the notice provision specifically requires posting. In fact, Jumalon and Ono agreed with HEC’s interpretation that Section 11C only required that HECO post the notice of change in work base three days prior to the change. Accordingly, the ordinary and plain meaning of the notice provision only requires posting of the work schedule at the bast yard three days prior to the change. Moreover, HEC’s compliance with the three day notice provision by posting the work schedule on June 14, 2001 is uncontroverted.
15. Section 2 of the Agreement specifically prohibits the amendment, modification, alteration, or waiver of any provision or term of the Agreement except by a mutually executed written document. The Union has failed to provide evidence of a written agreement to support is contention that the specified notice provision in Section 11C was modified to require actual three day prior notice to the affected employee.
16. Even if the Arbitrator somehow determines that the notice provision language in Section 11C is ambiguous, the parties’ past practice supports HEC’s interpretation as reasonable and appropriate.
17. HEC’s past practice supports its position that only posting and not actual personal contact is required to fulfill the Company’s obligation of notification.
18. The Union has failed to show any intent by HEC to alter the existing notice requirement and practice from posting work base changes at the base yard three days in advance to actual personal contact with the affected employee.
19. The Union does not challenge HEC’s characterization of its efforts to contact affected employees by telephone as courtesies rather than agreement to alter the existing posting notification requirements contained in Section 11C. Such cooperative efforts between supervisors and employees should be encouraged, not penalized, merely because they did not succeed.
20. HEC’s efforts to contact affected employees by telephone cannot be construed as an intentional modification of the posting requirement.
21. The Union may also attempt to assert that the prior grievance filed by James Hoffman (“Hoffman”), dated February 6, 2001, has precedential valued supporting the Union’s position that HEC modified the posting notice requirement to require actual personal contact with an affected employee. The Hoffman grievance was very limited, if any, precedential value and application to the contractual interpretation issue before the Arbitrator. The facts underlying the Hoffman case are distinguishable from the Ono grievance.
22. There is no dispute that HEC provided timely notification by posting to Ono.
23. Mike Mclnerny, Manager of Industrial Relations (“Mclnerny”), testified that in a similar grievance involving the notice provision in Section 11C, the half time premium was not paid to Carol McKenzie (“McKenzie”) because HEC was able to confirm that the three day posting requirement had been met. McKenzie decided not to pursue the grievance beyond the first level, and accepted HEC’s decision not to pay the half time premium. As such, the Union has failed to meet its burden of proof showing a violation of Section 11C.
It is the Union’s position that the Employer has violated the CBA, including a well-established past practice of personally providing notice to employees returning from vacation of a change in their work base, noting that:
1. Because HEC failed to personally notify Ono, Ono is entitled to be paid the additional one-half (1/2) times his straight time rate of pay for three (3) days.
2. The Employer should be required to maintain the existing past practice of either (a) not scheduling employees returning from vacation with a change in work base; or (b) providing the employee with personal notification of such change.
3. The employee should not be obligated to call in prior to returning from vacation.
4. A schedule change was made when Ono was on vacation. Consequently, Ono had no way of seeing the schedule change. Jumalon testified that the physical posting of the notice at the base yard was insufficient since Ono was on vacation. The Employer knew he was on vacation, and therefore unable to see any schedule change notice that was posted at the base yard.
5. Jumalon testified that in the past, the Employer did not try to inform employees on vacation of a change in the base yard. The Employer did not call because it did not change the base yard of employees on vacation.
6. The Employer did not take the position that physically posting of the notice was sufficient under the CBA and past practice.
7. The change in the base yard for Ono was posted on June 14, 2001. The Employer’s response indicated that the Employer had tried to contact Ono to inform him of the change in base yard. This is insufficient since in the past, the only contact permitted has been direct contact with the employee.
8. The Employer could have utilized another employee on the crew rather than Ono since Ono had not been properly notified of the change in work base.
9. Ono was not given proper notice. He was never personally contacted by anyone from HEC to inform him that his work base had temporarily moved. Section 11C of the CBA required the Employer to personally notify Ono that his work base had moved or pay him the premium required by Section 11C.
10. The Grievant, like other employees returning from vacation, had a reasonable expectation that he would be working out of the same workplace or be notified by the Employer that his work base had changed. While the location of where an employee reports to work may not seem significant to the Arbitrator or an outsider, it is important to the employees in the Construction and Maintenance Departments, so much so that they have negotiated into their CBA the following requirements:
1. They are to be permanently assigned to an established work base.
2. That there are specific, designated work bases.
3. Before they are to be temporarily assigned to another work base, they are entitled to notice.
11. There is not established past practice not to change the work base for employees on vacation, or if the change was made, that personal notice of the change in work base would be given to an employee returning from vacation.
12. In situations like Ono’s where the employee is on vacation when the employer makes a work base change, posting a notice on a bulletin board provides absolutely no notice to the vacationing employee. Ono was not in any provision to learn that his work base was being changed by the Employer because he was not in Honolulu when the notice was posted.
13. The Employer had a practice of not scheduling the employee for a work base change. Apparently the Employer decided to change this practice by calling Ono. Ono could not be personally contacted since he was not on the island when the calls were made to him.
14. The Union does not dispute that the Employer made an effort to call Ono. In fact, the Union points out that the Employer’s position that it only had to post a notice on a bulletin board to meet the requirements of Section 11C is refuted by this conduct. It is clear that Employer called Ono’s home on June 12, 13 and 14. If as contended by the Employer, its only obligation was to post the notice on the bulletin board, these calls would not have been made.
15. The Employer knew it had an obligation to personally notify Ono of his work base change or pay the penalty provided in Section 11C.
16. Past practice is used if a contact is unambiguous and the practice is an aid to help interpret the CBA. A past practice can also be used if the contract is silent and past practice is used to supplement the agreement. If the past practice directly contradicts a clear and specific contract provision, past practice will not be used.
17. The Company’s practice has been to either (a) not to schedule employees returning from vacation to a different work base or (b) personally informing the employee of the change in work base.
18. The Employer had an obligation to contact Ono prior to his return to work.
19. The Company’s posting of a change of work base notice was not sufficient notice to employees on vacation, and therefore Section 11C of the Agreement was violated. HEC was required to give Ono personal notice of the change of his work base. Because HEC failed to do this, Ono is entitled to be paid an additional one-half pay for the three days he didn’t receive timely notice.
20. If the established practice regarding employees on vacation was that they would not be given a different work base or would be personally notified of the change, then the Employer has no right to unilaterally change the practice under the Management Rights cause of the Agreement.
21. The Union contends that Section 11C, as supplemented by the past practice, is a specific provision that prohibits the Employer from taking this action.
Issue No. 1:
Did HEC violate Section 11C of the CBA when it temporarily transferred the Grievant and timely posted notice of the transfer, but failed to give him personal notice?
After review of the record, including the Agreement, all of the testimony, all of the exhibits, and the briefs, the circumstances presented by the Union are not inconsistent with Section 11C of the CBA.
Section 11C. WORK BASE
Each employee shall be assigned to a permanently established work base. Work base assignments will be made for period of not less than six months duration. The following are the designated work bases:
Traveling Crew (Power Supply Operations & Maintenance)
Traveling Crew (Construction & Maintenance)
When other non-traveling crew employees of the Construction & Maintenance, Support Services (Stores) Departments and the maintenance and Support Services for the Power Supply process areas are temporarily assigned to the Traveling Crew or another designated work base, three-days notice of such assignment will be posted. After the three-days posted notice is given, the employee will be paid a premium of $1.00 for each hour worked or $8.00 per day, whichever is greater. If the three-day posted notice is not given, the affected employee will be paid an additional one-half times the straight time rate for all hours worked for each day that such notice is lacking. It is not to be considered a temporary work base assignment when an employee travels on Company time. (emphasis added).
As can be seen, the applicable section of the Collective Bargaining Agreement expressly and specifically only refers to “posted notice” three different times. Thus, under the clear language of the Agreement, the employer is only required to post notice of an employee’s work location. Because the Grievant admitted that the notice was posted, this Arbitrator cannot find a violation of the CBA by the Employer under these circumstances.
The Union argues that the Grievant did not get actual notice until he showed up for work. Again, though, all the Agreement requires is that the notice be posted.
The Union argues that the Employer actually attempted to contact the Grievant evidencing a recognized obligation to do so. The Arbitrator, however, finds such conduct to have been a mere courtesy for which it would be inequitable to penalize the Employer.
Finally, the Union argues that the Employer compromised and settled a similar grievance. The Arbitrator cannot, however, conclude that a compromise settlement should be construed to be an admission of obligation. To hold otherwise would discourage compromise resolution of grievances.
DECISION AND AWARD
Based upon the foregoing, the Arbitrator finds that the Grievant failed to show the Employer violated the parties’ Collective Bargaining Agreement. Following the Agreement’s language, the grievance must be denied. Accordingly, the grievance is denied in its entirety.
DATED: Honolulu, Hawaii, , 2002.
On this _____ day of __________, 2002, before me personally appeared Michael F. Nauyokas, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he executed the same as his free act and will.
Notary Public, State of
My Commission expires: _______________
Notary Public, State of
My Commission expires: _______________
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