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Title: Canby (Oregon) Utility Board and International Brotherhood of Electrical Workers (IBEW), Local 125
Date: February 10, 2003
Arbitrator: David Pesonen
Citation: 2003 NAC 103

 

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (IBEW), LOCAL 125, UNION,

   and

 TRAVIS CORE, EMPLOYEE,

          Grievants,

     vs.

CANBY (OREGON) UTILITY BOARD,

           Employer  

 

 

ARBITRATOR'S

     DECISION AND AWARD

I.              Introduction

This grievance was filed by the International Brotherhood of Electrical Workers (“IBEW”), Local 125 (hereafter, the “Union”), on July 31, 2002, on behalf of Travis Core, a member of the Union and an employee of the respondent Employer, Canby Utility Board (“CUB”).  Thereafter the parties engaged in negotiations that ultimately were unsuccessful in resolving the grievance and the parties resorted to arbitration under their collective bargaining agreement (hereafter “Agreement.”)  The matter was heard in Portland by this arbitrator on December 16, 2002.  Grievants were represented by John S. Bishop, II, Esq. of the Portland firm of McKanna, Bishop, Joffe.  The Canby Utility Board was represented by Michael D. Walsh, Esq. of the West Linn firm of Hutchinson, Hammond & Walsh, P.C.  The parties submitted simultaneous post-hearing briefs, received by the arbitrator on February 3, 2003.  The matter stands submitted for decision on that date.[1]

II.         The Issue

Whether the employer, acting through its general manager, may compel the individual grievant to discontinue his outside employment with a third party employer, under the specific circumstances of such employment, on pain of discharge or lesser discipline in the event of his failure to comply with such a directive.

III.    Applicable Provisions of the Collective Bargaining    Agreement and the Employer’s Personnel Handbook.

The Agreement between the IBEW and the CUB provides in part:

Article 16.1.  No employee will engage in off duty employment with another employer that will interfere with his work performance.

 

  Article 22.1.  A grievance is hereby defined as an alleged violation of the contract governing the relationship between employer and employee, or an alleged violation of the terms of this Agreement, or any type of supervisory conduct which unjustly or unlawfully causes an employee to lose his job or any benefits arising out of his job.

   The Utility’s Personnel Handbook, a copy of which Travis Core received at the time of his employment, provides in part:

Paragraph 1.5.  Covered Positions.  These personnel rules shall apply to all employees in CUB service.

 

  Paragraph 1.7.  Collective Bargaining Agreement.  In the event of a conflict between any provision of this document and any provision of a valid and effective collective bargaining agreement, the provisions of the collective bargaining agreement shall govern. . . .

 

    Paragraph 3.3.3. Outside Employment.  No full-time employee shall accept outside employment, whether part-time, temporary or regular, without prior written approval from the department head.  The department head shall obtain the endorsement of the General Manager.  Each change in outside employment shall require separate approval.  The General Manager may revoke approval as deemed necessary.

 

   To be approved, outside employment shall:

 

3.3.3.1. Not interfere with employee’s normal work hours;

 

3.3.3.2. In no way detract from the efficiency of the employee’s work; and

 

3.3.3.3.        In no way conflict with the interest of CUB   or be a discredit to CUB.

 

3.3.3.4    Not be on CUB provided leave (sick, family medical or parental), disability or worker’s compensation leave.

 

   Paragraph 3.7.1. Causes for Discipline.  [This paragraph lists 23 specific grounds for discipline, ranging from alcohol and drug abuse to bribery, theft, dishonesty, etc. The only provisions of this paragraph that I find arguably applicable on the facts of this case are]:

 

3.7.1.2. “Breach of discipline.”

 

3.7.1.3.        “Insubordination.”

IV.         The Record

Canby Municipal Utility is a small utility with approximately 24 employees, including two journeymen lineman.  Travis Core is an apprentice lineman. He has been employed in that capacity for about 3-1/2 years, with satisfactory performance evaluations and no prior discipline.  

On May 30, 2002, Travis Core suffered a tendonitis injury to his elbows while performing tasks within his job description. On June 24th he filed a worker’s report of occupational injury.  Among other inquiries, the form for such a report asks whether the employee has “more than one employer.”  Mr. Core truthfully checked that box affirmatively.  A copy of the form was provided to the employer.  This was the first notice to the Utility’s general manager that Mr. Core had another job.

Mr. Core had been working Friday and Saturday nights as a doorman at Wanker’s Corner, a well-known supper club, for several months when his injury on the lineman job occurred.  Wanker’s Corner is a full-service restaurant and bar, seating approximately 150 to 200 patrons on weekend nights.  On weekends it employs 2 or 3 bartenders, 4 or 5 table servers, and 4 or 5 doormen, in addition to kitchen personnel.  Before his Wanker’s Corner job, Mr. Core had been employed on Friday and Saturday nights as a bartender at another establishment. His hours at Wanker’s Corners varied depending on the level of business but usually were from about 8:00 p.m. on Fridays and 9:00 p.m. on Saturdays until closing time, usually around 1:00 a.m.  He testified that on average he worked at Wanker’s Corners 4 or 5 hours a week. 

His duties were to check patron’s identification to assure that minors were not admitted, collect a door charge from patrons, clean tables when needed, watch the back door of the establishment for unauthorized entrants, act as a backup bartender, and assist in settling arguments among patrons that could escalate into fights—this later responsibility being commonly defined as a “bouncer.”

On July 26th, CUB Assistant General Manager Karl Hansen sent a memo to Travis Core confirming a meeting they had had on that date in which Mr. Hansen instructed Mr. Core to discontinue his outside employment.  The memo invoked both Section 16.1 of the Agreement and Section 3.3.3 of the Personnel Handbook as authority for the directive.  The memo concluded:

I have found that you accepted a part time second job without obtaining the required proper approval and that your chosen second job conflicts with Canby Utility’s ability to secure for you adequate Worker’s Compensation Insurance at a reasonable and acceptable rate, which will definitely interfere with your ability to perform work for Canby Utility.

 

This memo confirms that you have been notified that you are in conflict with both your IBEW agreement and the Canby Utility Personnel Handbook and that you have been instructed to terminate your part time second job with proper notice given to your second employer.

 

     The Union’s July 31st grievance notice responded to this directive.  Its requested remedy was for the Utility to “Rescind the July 26, 2002, memorandum from Mr. Karl Hansen to Mr. Travis Core.”  Accordingly, the Utility’s General Manager, Dirk Bogard, called a meeting with the grievants for August 7th to investigate the matter further and seek an informal resolution of the grievance.  Notes of that meeting reflect that the Union interpreted Assistant General Manager Hansen’s July 26th directive to imply that Mr. Core would be subject to discharge or other severe discipline if he refused to quit his second job. 

     The Union advanced procedural and substantive grounds for the grievance.  It took the position that only Article 16.1 of the collective bargaining agreement governed outside employment by a member of the Union and that the Employee Handbook’s terms regarding outside employment applied only to non-union employees.  Substantively, the Union argued that Mr. Core’s outside job was not in conflict, or at least was no more in conflict with Mr. Core’s apprentice lineman position than many other permitted outside activities engaged in by other linemen, including bucking hay and other strenuous activities outside their tasks at the Utility. 

Similarly, General Manager Borges relied on both procedural and substantive arguments. Procedurally, he argued that Mr. Core had failed to seek his supervisor’s and the General Manager’s approval, in violation of Paragraph 3.3.3 of the Personnel Handbook. And, substantively, the risk of injury in the event Mr. Core were to intervene in a fight among Traver’s Corner patrons could result in his inability to perform his regular job and possibly increase the Utility’s liability for workers’ compensation premiums.

The August 7th meeting ended in an agreement to pursue further settlement discussions but they ultimately reached an impasse.  On September 3rd, General Manager Borges wrote to Mr. Core, with a copy to the Union Representative, as follows:

   I uphold Mr. Hansen’s [July 26th] instruction because I agree with his assessment that your outside employment will interfere with your work performance.  As you well know, your position as an apprentice lineman with CU is a highly hazardous one, requiring great physical skill and mental clarity.  Based on our conversation, I understand that when working at Wanker’s Corner, you are expected to check identification, perform routine cleaning around the bar, and occasionally help serve the patrons.  However, you also acknowledged at our meeting that you are expected to ask people to leave when necessary, and are additionally expected to aid in stopping fights that break out until the police arrive or the fight is otherwise brought under control.  I believe the risk of your being injured in such a workplace environment constitutes an interference with your work performance.

. . . .

     Acknowledging that your second employer is entitled to reasonable notice of your departure, I expect your last day of employment for Wanker’s Corner to be no later than September 17, 2002. 

     On September 5th, the Union filed formal notice to arbitrate this grievance.  Pending resolution of the grievance the parties agreed to maintain the status quo regarding Mr. Core’s outside employment without prejudice to their respective positions in this grievance proceeding.

     At the arbitration hearing General Manager Borges testified   that in his opinion Mr. Core’s outside job violated one of the four criteria set forth in Paragraph 3.3.3 of the Personnel Handbook--that is, sub-Paragraph 3.3.3.3, in that it would “conflict with the interests of CUB,” by risking the need to hire additional employees in the event Mr. Core were injured breaking up a fight, and such an injury could adversely affect the Utility’s workers’ compensation premiums.

However, Mr. Borges conceded that, absent such an injury, the Wanker’s Corner job did not violate any of the other three criteria in Paragraph 3.3.3 of the Handbook.  Mr. Borges further acknowledged that CUB had no written criteria, other than the very general provisions in Paragraph 3.3.3., specifying factors that would render outside employment in violation of that provision or of Article 16.1 of the collective bargaining agreement.  Mr. Borges’s determination that Mr. Core’s outside employment was in conflict with his lineman position was only his “opinion” and within his management discretion based on “general knowledge” and whether he had “a good feeling” about an employee’s outside job.

     On cross-examination he testified that he had no problem with a lineman’s outside pursuits, such as sky diving, mountain climbing or being a volunteer fireman, because the employee was not being compensated for engaging in such activities.  The significance of payment for outside activity, he testified, was that the employee had a “duty” to pursue a paid position.  He also conceded that there had not been any instance in which Mr. Core’s ability to perform his lineman job had been limited by his weekend employment.  Finally, he testified that he had not consulted with the Utility’s workers’ compensation carrier regarding any effect on the Utility’s premiums in the event of injury to Mr. Core from his outside employment, nor was he aware that Wanker’s Corner carried workers’ compensation insurance covering Mr. Core’s employment there as a doorman.

     There was some testimony regarding a potentially hazardous incident that occurred on a project where Mr. Core served as a safety lookout.  He was under the direct supervision of a journeyman lineman, as required by the Utility’s safety rules.  An informal investigation of the incident did not implicate any unsafe conduct by Mr. Core.  However, the incident came to the attention of one of the Utility’s board members who apparently suggested that it might have had some connection with the effects of Mr. Core’s Traver’s Corner job on his performance in his CUB job.  General Manager Borges conceded, however, that such a connection was purely speculative.  

     There was very little precedent on this record with respect to application of the Utility’s outside employment policies to other employees.  The evidence addressed only two such instances.  General Manager Borges testified that one instance involved his secretary, who had held an apparently full-time job at a local Fred Meyer store when she was hired by the Utility.  She kept that employment for a few months, but ultimately she quit Fred Meyers because holding two full time jobs made her fatigued and interfered with her ability to perform her secretarial tasks for Mr. Borges.  Whether her having discontinued the Fred Meyer job was a mutual decision or whether it was compelled by the Utility’s Personnel Handbook was not resolved on the evidence in this record.

     The other instance involved an employee whose hours were adjusted so that he could coach a local softball team in the early afternoon.  This employee applied for management approval of the proposed change under the provisions of the Personnel Handbook.  His particular position did not involve work that needed to be performed during the regular working shift and the adjustment to his work schedule caused no interference with his regular duties. 

  Except for these two instances, there was no history of the Utility’s application of Paragraph 3.3.3 of the Personnel Handbook regarding “Outside Employment.”

     IV.  Discussion

The general rule is that the employer bears the burden of proof to establish that the employee’s conduct warrants discipline.  Elkouri & Elkouri, How Arbitration Works, 5th Ed., BNA, 1985 Ed. (by Committee on ADR in Labor & Employment Law, American Bar Association, Section of Labor and Employment Law), pp. 905-908.  [Hereafter, Elkouri & Elkouri.]  The reported arbitration cases are all over the lot with respect to the quantum of proof required to uphold a disciplinary grievance.  But in my view a preponderance of the evidence is the appropriate burden in cases of this sort.

In this case, the arbitrator is confronted with two separate lines of analysis in determining whether the Utility has met its burden, in order to uphold General Manager Borges’s directive that Travis Core quit his outside employment.  First is the question whether some sort of “just cause” test should be applied to management’s actions.  The second issue concerns the applicable standards for assessing whether the employee’s conduct warrants discipline under the Agreement or the  Personnel Handbook.

While the Agreement does not adopt the term “just cause” as a requirement for discipline of Union members, it does provide in Article 22.1 that a grievance may arise from “any type of supervisory conduct which unjustly or unlawfully causes an employee to lose his job or any benefits arising out of his job.”  I construe this language as requiring the employer to show the equivalent of “just cause” in support of its order for Travis Core to discontinue his outside employment. 

In the event that he were to disobey such an order, he necessarily faces discipline, including loss of his job with the CUB.  Stated alternatively, Travis Core’s right to engage in outside employment that does not run afoul of Article 16.1 of the Agreement and Paragraph 3.3.3. of the Personnel Handbook is a “benefit arising out of his job” within the meaning of Article 22.1.  And any action by management that unreasonably infringes that right is “unjust” within the meaning of that Article.

A threshold question is whether Article 16.1 of the Agreement and Paragraph 3.3.3 of the Personnel Handbook are in conflict. Both provisions anticipate that an employee may engage in outside employment.  The difference lies in the specific criteria and procedures for acceptable outside employment.  Article 16.1 of the Agreement is silent on where the responsibility lies for determining whether such employment “will interfere with [the employee’s] work performance.”  It seems to leave the decision to the employee; but that is not entirely clear.  On the other hand, the Handbook specifies that such employment will be acceptable--substantively--if it meets the four general criteria in Paragraph 3.3.3 concerning such employment’s effect on the Utility and the employee’s ability to perform his job and--procedurally--receives management approval. 

Is this a conflict? If the Agreement is construed to leave the decision up to the unfettered discretion of the employee-- to decide whether his outside employment will not interfere with his Utility job--then these two provisions conflict with respect to where the authority lies for making that determination.  However, since at best the Agreement is ambiguous, the most reasonable reconciliation of these two provisions is that Paragraph 3.3.3 of the Handbook adds a “gloss” or amplification to Article 16.1 of the Agreement and is not in conflict with it. 

This conclusion is buttressed by the realities of labor negotiations.  It is very unlikely that the Utility would have agreed to an ungovernable and open-ended power in the hands of its employees, if this provision were understood to leave the decision regarding a job conflict exclusively to the employee or the Union.  There is no bargaining history on this record concerning this provision except that it has remained unchanged in successive collective bargaining agreements for at least ten years.

As stressed by Elkouri & Elkouri, [1999 Supp. at p. 65]:

Company-issued booklets, manuals, and handbooks that have not been negotiated or agreed to by the union are said to constitute a unilateral statement by the company and are not sufficient to be binding upon the union [footnotes omitted]. A handbook, however, may aid an arbitrator in interpreting inconclusive contractual language.  (Emphasis added.)

 

The conclusion that the Agreement and the Handbook are not conflicting is reinforced by the Handbook itself, which provides that its personnel rules “shall apply to all employees in CUB service.” (Emphasis added)  Further, the Handbook recognizes that in the event of conflict between its terms and the terms of the collective bargaining agreement, “the collective bargaining agreement shall govern.”

 I conclude on this record that the determination of  whether outside employment interferes with an employee’s work performance is inconclusively addressed in Article 16.1 of the Agreement.  Therefore, that decision lies within the Utility management’s discretion under Paragraph 3.3.3 of the Utility’s Personnel Handbook. 

However, such discretion cannot be exercised capriciously or arbitrarily.  The Handbook itself in Paragraph 3.3.3 circumscribes the criteria to be applied by management in exercising such discretion.  In other words, General Manager Borges’s decision whether or not to approve Travis Core’s employment at Traver’s Corners must be reasonable and based on specific facts relevant to the Employer’s interests, not mere impressions or feelings about the outside employment.  

A rule [governing employment] must be reasonably related to a legitimate [employer] objective.  An employer cannot regulate an employee’s behavior outside the workplace unless the conduct or situation impacts the employer’s operations [Footnotes omitted].  If the activity to be regulated does not have the appropriate nexus to the workplace, the rule will not withstand arbitral review.  Brand, et al., Discipline and Discharge in Arbitration, BNA, 1998, at p. 73. (By Committee on ADR in Labor and Employment Law, Section of Labor and Employment Law, American Bar Association.)

Mr. Core testified that although he had received the Handbook at the time of his initial employment with the Utility several years ago, he was not aware of the provisions of Paragraph 3.3.3 that required prior management approval of his outside employment.  On this record, however, it is most likely that General Manager Borges would have declined to approve such employment.  The precise issue in this arbitration, therefore, is a bit hypothetical:  would such disapproval have been unreasonable?  If it would have been, then it follows that Assistant General Manager Hansen’s July 26th memorandum directing Mr. Core to discontinue such employment, backed up by General Manager Borges’s September 3rd letter, is equally unreasonable.

In light of all the evidence in this record, the preponderance of the evidence is that General Manager Borges’s conclusion to uphold Assistant General Manager Hansen’s directive for Mr. Core to quit his outside employment was based on little more than an unsubstantiated “impression” of that job without a realistic assessment of the effect of that employment on the Utility or Mr. Core’s ability to perform his job with the Utility.  Possibly, also, General Manager Borges was under some pressure from one of the Utility’s board members who had learned informally of Mr. Core’s outside employment and raised it as an issue in a board meeting.

Mr. Borges based his decision, he testified, on his “feeling” that a bouncer’s job could lead to serious injury.  However, Mr. Core testified that he had never been called upon to break up a fight among Traver’s Corner patrons and that, if such a problem were to occur, the other bouncers were much bigger than he and would have taken on the primary intervention.  There was no evidence that the Traver’s Corner job had ever “interfere[d] with [Travis Core’s] normal work hours” (Handbook, ¶ 3.3.3.1); had “distract[ed] from the efficiency of [his] work” (¶ 3.3.3.2); had “conflict[ed] with the interests of CUB or be[en] a discredit to CUB” (¶ 3.3.3.3); or occurred “on CUB provided leave . . .” (¶ 3.3.3.4)[2].  There was simply no evidence, far less than a failure of the Utility’s burden, that Mr. Core’s outside employment violated either Article 16.1 of the Agreement or Paragraph 3.3.3 of the Personnel Handbook—except for the procedural requirement of prior management approval.

With respect to the effect, if any, on the Utility’s workers’ compensation premiums, General Manager Borges conceded that he did not know whether an injury to Mr. Core at Traver’s Corner would actually affect the Utility’s premiums, nor was he aware that Traver’s Corner carried workers’ compensation insurance for its part time employees such as Mr. Core.  

If Mr. Core or the Union on his behalf had sought written approval from the Utility’s management and it had been denied, an arbitrator would, on this record, find that such denial was arbitrary and capricious.  I would find, further, that Assistant General Manger Hansen’s direction for Mr. Core to terminate his outside employment would have been in violation of the authority of Utility management under both the Personnel Handbook and the Agreement. It would not have constituted grounds for discipline as set forth in the Personnel Handbook, specifically Paragraphs 3.7.1.2 (“Breach of Discipline”) or 3.7.1.3 (“Insubordination”).

Viewed another way, the directive for Mr. Core to quit his Traver’s Corner part time job, based on the evidence in this record, “unjustly” sought to cause him “to lose . . . [a] benefit [the right to engage in non-conflicting outside employment] arising out of his job [with the Utility],” as those terms are used in Article 22.1 of the Agreement. 

V.              Award

1.  The grievance is upheld.  The Canby Utility Board, through its General Manager, shall withdraw its directives of July 26 and September 3, 2002 for Journeyman Lineman Travis Core to terminate his weekend evening employment at Traver’s Corner. 

2.  However, in the event that there is a material change in the circumstances of such employment, respecting tasks to be performed, workdays, hours of employment, or other conditions that could potentially affect his ability to perform his CUB job or any of the other factors listed in Paragraph 3.3.3. of the Personnel Handbook, he is to comply with the Handbook and seek written approval of his immediate supervisor and the CUB General Manager.  Such approval shall not be unreasonably withheld.

3.  Pursuant to Article 22.5 of the collective bargaining agreement between the Utility Board of the City of Canby, Oregon, and The International Brotherhood of Electrical Workers, Local Union 125, each party shall bear one-half of the arbitrator’s fees and expenses, upon receipt of an itemized statement therefore.

 

Dated:  February 10, 2003                                                   By:________________________
                              
                                                                                  David E. Pesonen
                              
                                                                                  Arbitrator


[1] Article 22.5 of the Agreement provides that the arbitrator “shall have ten (10) days in which to hear the dispute and to render a decision.”  I construe the term “to hear the dispute” to include receipt and review of the parties’ post-hearing briefs. 

[2] After his on-the-job injury at the Utility, Mr. Core continued to work in his apprentice lineman job but on light duty.  He advised the management at Wanker’s Corner of his injury and the limitations it placed on his performance; that management, he testified, accommodated the limitations imposed by his tendonitis injury.  Accordingly, I find that his outside employment did not take place “while on CUB provided leave” within the meaning of Handbook Paragraph 3.3.3.4.

 

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