Title: Black Hawk College
and Black Hawk College Teachers Union, IFT, Local
BEFORE THE ARBITRATOR
Cornfield and Feldman, Attorneys at Law, by Gilbert Cornfield, appearing on behalf of the Union.
Pappas & Schnell, Attorneys at Law, by Matthew P. Pappas, and Neal, Gerber & Eisenberg, Attorneys at Law, by Harry J. Secaras, both appearing on behalf of the Employer.
Black Hawk College, herein referred to as the "Employer," and Black Hawk College Teachers Union, IFT, Local 1836, AFL-CIO , herein referred to as the "Union," having jointly selected the Undersigned from a panel of arbitrators provided by the Federal Mediation and Conciliation Service as the impartial arbitrator to hear and decide the dispute specified below; and the Undersigned having held a hearing on September 4, 2002, in Moline, Illinois: and each party having filed post-hearing briefs, the last of which was received November 21,002.
I state the issues as follows:
1. Is this grievance substantively arbitrable?
2. Should Article X of the Collective Bargaining Agreement be reformed to more nearly comply with the Union’s view of the what it should read?
2. f so, what is the appropriate remedy?
RELEVANT AGREEMENT PROVISIONS
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Section 6.1. Definition. A grievance shall mean a complaint by an employee that there has been a violation or misinterpretation or misapplication of the specific terms of this Agreement.
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Section 6.4. Limitation on Authority of Arbitrator. The arbitrator shall have no right to amend, modify, nullify, ignore, add to, or subtract from the provisions of this Agreement. The arbitrator shall consider and decide only the question of fact as to whether there has been a violation, misinterpretation, or misapplication of the specific provisions of this Agreement based on the specific issue submitted to the arbitrator by the parties in writing. If no joint written stipulation of the issue is agreed to by the Board and Union, the arbitrator shall be empowered to determine the issue raised by the grievance as submitted in writing at the First Step (Second Step in the case of a Union Grievance or Group Grievance). The arbitrator shall have no authority to make a recommendation on any issue not so submitted or raised. The arbitrator shall be without power to make recommendations contrary to, or inconsistent with in any way, applicable laws or rules and regulations of administrative bodies that have the force and effect of law. The arbitrator shall not in any way limit or interfere with the powers, duties, and responsibilities of the Board under law and applicable court decisions. The decision of the arbitrator, if made in accordance with the jurisdiction and authority granted to the arbitrator pursuant to this Agreement, will be accepted as final by the Board, the Union, and the employee, and all parties will abide by it.
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VOLUNTARY SEPARATION PLAN
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Selection of Separation Date-Employees may select any of the following Plan years for their separation date:
Year A–August 1, 1997, through July 31, 1988 (extended through the last summer session for faculty members teaching the summer of 1998)
Year B–August 1, 1998, through July 31, 1999 (extended through the last summer session for faculty members teaching the summer of 1999)
Year C–August 1, 1999, through July 31, 2000 (extended through the last summer session for faculty members teaching the summer of 2000)
Year D–August 1, 2000, through July 31, 2001 (extended through the last summer session for faculty members teaching the summer of 2001)
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Health, Dental, and Vision Insurance for Those Leaving in Plan Year A - Health, dental, and vision insurance in effect for the eligible employee at the time he or she elects to participate in the Plan will remain in effect according to the terms of the Health, Dental, and Vision plans maintained by the College, as amended from time to time. An eligible employee who elects to participate in the Plan shall contribute the cost of insurance as given in the following table:
Upon the death of the eligible employee who elects to participate in the Plan, the spouse of such employee will have the option to continue insurance under the Health, Dental, and Vision plans maintained by the College, as amended from time to time. The spouse shall pay the College twenty-five (25) percent of the cost of health, dental, and vision insurance.
This insurance applies through June 30, 1999. After that date, the participants in the Plan may apply for Insurance through the State Employees Group Act of 1971, as amended, hereafter called the “State Plan.” This is the plan that is made available to University retirees in the State of Illinois. The cost of the retiree portion of such plan will be paid by the employee.
An employee separating under the Voluntary Separation Plan and eligible for the State Plan terminates his or her eligibility for College health, dental, and vision insurance and relieves the College of any future obligations to provide such insurance.
During the period August 1, 1997, through June 30, 1998, the applicant shall be eligible for health, dental, and vision care insurance provided to any other active employee covered by this agreement. The co-pay percentages given above are appropriate only after the Plan Year A employees separate from the College, and will continue through June 30, 1999.
Health, Dental, and Vision Insurance for Employees Separating in Plan Years B, C, and D - The employee and spouse may elect to join the State Plan. The cost of such plan will be paid by the retiree and deducted directly from retirement payments paid by SURS to the retiree.
An employee separating under the Voluntary Separation Plan and eligible for the State Plan terminates his or her eligibility for College health, dental, and vision insurance and relieves the College of any future obligations to provide such insurance.
Until the employee separates from the College the current health, dental, and vision insurance will be provided to the employee, and the cost of such insurance will be the same as paid by any other active employee covered by this agreement.
Supplemental Health, Dental, and Vision Insurance - Should a Black Hawk College group supplemental health, dental, and vision plans [sic] become available, participants in this Plan may elect to purchase such insurance so that they would retain benefits substantially equal to those of active employees of the College. The cost of such a supplemental insurance would be shared in the same co-pay percentages as listed above for those employees separating in Plan Year A.
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The Employer is a community college which operates under Illinois law. The Union represents professional employees of the Employer.
Under the parties’ previous collective bargaining agreement the parties had a voluntary separation plan. Under the former contract provision, the Employer created incentives for faculty to retire early. Among the incentives was a provision which allowed those who voluntarily retired to participate in the parties’ health insurance plan during retirement. Its provisions were substantially the same as those for Plan Year A in Article X of the current agreement.
The parties entered negotiations to replace the current agreement. Those negotiations commenced in March, 1997 and concluded in mid-September or early October, 1997. The parties appeared to have used interest based bargaining rather than traditional bargaining. The parties used subcommittees in the negotiation process. The subcommittees were assigned the responsibility to explore issues that were specifically assigned to them in an effort to reach mutual agreement. They then were empowered to make recommendations to the parties’ main negotiation process. However, they were not empowered to enter into any tentative agreements for the parties. They were only empowered to make recommendations.
On August 18, 1997, the State of Illinois adopted Senate Bill 423 which was a plan designed to create a state-wide affordable health insurance plan for retirees of community colleges in the state who had vested rights in the State Universities Retirement System (herein “SURS”). The plan was to be administered by the Illinois Department of Central Management Services and did not require that past or future retirees abandon their participation in employer-provided health plans. The specific benefits and premiums were not yet established under the law as of the time of the parties’ negotiations for the applicable collective bargaining agreement. The Employer received a two page memorandum outlining the plan and it proposed premiums from its association. This is the only documentation the parties ever received concerning this plan prior to the time they concluded negotiations. This memorandum stated in relevant part:
On May 30, 1997, the Illinois General Assembly approved Senate Bill 423, which establishes a program of health, dental and vision benefits for retired employees of public community college districts. If signed by the Governor, this health insurance plan will begin providing health insurance benefits on July 1, 1999, for all current and future community college retirees, except at the City Colleges of Chicago. This plan will be administered by the Illinois Department of Central Management Services (CMS) and is similar to the benefits provided to state university retirees.
This health insurance plan was established in order to provide affordable health benefits for former full-time community college employees who have vested in the State Universities Retirement System (SURS). This plan does not in any way affect retired persons who are receiving health insurance benefits under a contract or a collective bargaining agreement, except to permit those persons to enter into the plan upon the scheduled termination of such arrangements.
FUNDING THE PLAN
The health insurance plan is funded from contributions from four sources:
1. Full-time active community college employees will have deducted from their payroll an amount equal to 0.5% of gross wages before taxes are calculated.
2. The community college district will match employee contributions.
3. The state of Illinois will automatically, through a continuing appropriation, also match the employee contributions.
4. As a group, the approximately 4,500 retirees will pay the balance of the premium costs associated with operating the program. CMS estimates that by the year 2000, retirees will pay about $650 per year on average for this plan. Medicare-eligible retirees will pay less than this amount and non-Medicare eligible retirees will pay more. SURS will deduct the appropriate amount from the retiree’s annuity check.
All contributions are deposited into a special fund designed for this purpose and held in the treasury of the state of Illinois.
BENEFITS OF THE PLAN
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Unlike the retired teachers’ plan, there is no premium penalty for persons who choose not to select a managed care program.
START UP OF THE PLAN
Beginning on January 1, 1999, all full-time active employees of a community college district (with the exception of the City Colleges of Chicago) will have 0.5% of gross wages deducted from their paychecks Community college districts will match that amount and forward the total to SURS. On July 1, 1999, enrolled retirees and the State of Illinois will also begin to contribute, and the community college health insurance plan will begin to offer benefits to retirees. The six-month collection of funds from active employees and the employers is necessary to “seed” the new special fund with operating capital.
CMS will charge an additional premium during the first few years of operation in order to build the fund up to a reserve of 50% of the insurance premium costs. After several years, premiums should stabilize.
ELIGIBILITY FOR THE PLAN
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COLLECTIVE BARGAINING AND THE PLAN
Nothing in this proposed new law prohibits a collective bargaimng arrangement or a contract that would permit the community college to enhance this plan in any way, and/or to pay some or all of the premium costs associated with this plan.
ADMINISTRATION OF THE PLAN
SURS and CMS will be involved in the operation of this plan. SURS will collect premiums and periodically forward those amounts to CMS. CMS (Bureau of Benefits) will administer the plan.
Prior to the adoption of this plan, the State of Illinois had subsidized community colleges for providing health insurance benefits to retirees. This subsidy was approximately $200,000 per year for the Employer. The State proposed to end this subsidy effective July 1, 1999.
The parties referred the issue of health insurance for retirees to a negotiation subcommittee consisting of James Kopal, Lucille Bealer for the Union and Nick Oriti, Manager of Human Resourcs, David Quillen, Vice President for Administration and Finance, and Bill Sadowski, Benefits Coordinator, for the Employer. Mr. Kopal testified to the discussions which occurred for the Union. Mr. Quillen was the Employer witness on that subject but he did not have an independent recollection of the actual discussions.
Mr. Kopal truthfully testified that the Employer sought to end its program of providing health benefits for all retirees retiring in the second, third and fourth years of the new agreement. Mr. Kopal testified that the Union participants were actively concerned both about whether the level of benefits of the state plan would be roughly equivalent to those enjoyed under the collective bargaining agreement and whether the premium would remain as predicted. He testified that he made inquiries along those lines as to both issues of Mr. Quillen who told him essentially that the benefits stated in the memorandum were not as good as the Blackhawk plan which he described as a “Cadillac” plan, but that they were nonetheless benefits which were good. He also answered the concern about the premiums by stating that the memorandum which both parties had was the only information he had. Mr. Kopal testified that neither he nor any other member of the Union team made any inquiry of state officials or anyone other than the Employer about those matters. Mr. Quillen credibily testified that he never obtained any relevant information about the state plan as to those issues other than the information contained in the memorandum until some time after the agreement had been ratified.
On April 15, 1999, the Employer was notified that the premiums would be substantially higher than outlined in the above-referenced memo. They were in fact $110.93 per month for the managed care plans and $130.50 per month for the indemnity coverage. Mr. Kopal testified that he and other interested employees were at a meeting on April 15, 1999, when that information was provided to the employees. He stated that he finalized his retirement after that date and was aware of the premium differences when he did so.
The record shows that benefits in the memo were as stated, but that the result was that some procedures were not covered and there are also questions about the speed of claims processing. Further, deductibles have turned out to be higher in the state plan.
POSITIONS OF THE PARTIES
The Union takes the position that the arbitrator has the authority to reform the early retirement provision of this agreement in Article X, because the parties made a mutual mistake about the premium the state would charge for the state insurance plan for retirees. It argues that arbitration authorities recognize that arbitrators have the authority to reform a collective bargaining agreement provision where there has been a mutual mistake by the parties. In those cases, the arbitrator is not changing the collective bargaining agreement, but merely enforcing the parties’ actual agreement. It argues that both parties relied upon the estimate of what the insurance premium would be in arriving at the terms of the collective bargaining agreement eliminating the right of retiring employees to participate in the Employer’s health insurance plan at shared cost. It requests that Article X be reformed to require the Employer to pay compensation to retirees who retired after 2000 of all of their insurance costs in excess of $650 per year. In the alternative, the Union would view it as an appropriate remedy for the arbitrator to order the Employer to allow retirees to participate in the Employer’s group plan in the future.
The Employer takes the position that the grievance is not arbitrable. A grievance is defined as a “violation, misinterpretation or misapplication” of any term in the agreement. It argues that the Union has failed to identify a specific provision which was allegedly violated. The Employer had no control over what the premium would be and Article X is silent as to what the ramifications would be if the premium were higher.
Alternatively, it argues that the Union has failed to show that the reformation of this agreement is appropriate. It has failed to show by clear and convincing evidence that there was a mutual mistake. The Union failed to show that both parties relied upon the quoted premium as the basis of their agreement. The Employer’s concern was not the premium for retirees, but the costs of continuing a separate plan.
The Employer notes there never was any discussion in negotiations as to what would happen if the premium costs exceeded the projection of $650 per year. The memorandum upon which the Union bases its case states that the premium was estimated to be $650 per year. Thus, the Employer argues that the premium was not a “fact”. It argues that the Union should be charged with knowledge of the risks of relying upon an estimate of premiums. Further, there is no evidence that the Employer ever took any action which reasonably could be viewed as inducing the Union to rely on that estimate. In its view, this both parties were aware of the risk that the memorandum’s estimates were wrong and both parties assumed that the risk.
In its view, if there was a mistake, it was the Union’s alone. It argues that the only conclusion which can be drawn regarding the intent of the parties is that they intend to continue a voluntary separation plan. The plan shows that once the state plan was activated it was the intent of the parties that the Employer not be required to provide insurance coverage (but might, if it chose, provide supplemental coverage for dental, vision and supplemental health). The parties intended that the Employer have the sole discretion to decide whether to offer the supplemental benefits.
Finally, the Employer argues that the remedy requested by the Union is not appropriate. It argues that any reformation of the agreement would change the terms of the agreement in direct contravention of the limitations placed on the arbitrator’s authority in Section 6.4. It notes the dispute occurred here because the Union failed to recognize the ramifications of relying upon the estimate of health premium costs. Any reformation would necessarily have the arbitrator rewrite the agreement to deal with this concern. Accordingly, it seeks to have the grievance dismissed.
The determinative issue in this matter is whether the parties have authorized me to exercise the broad equitable authority a court has to “reform” the parties’ voluntary separation plan because the of an alleged mutual mistake concerning the premium of the state plan. The equitable remedies of rescission and reformation are remedies which are available to courts under Section 301 of the LMRA, but disfavored in the law of collective bargaining agreements. See, Mulvaney Mechanical v. Sheet Metal Workers, 169 LRRM 3089 (CA 2, 2002); H. Prang Trucking Co. v. Teamsters, 103 LRRM 2412, 2414 (CA 3, 1980). The courts have allowed reformation of collective bargaining agreements for mutual mistake. See, for example, Steelworkers v. Johnston Industries, Inc., 120 LRRM 2695 (ED MI, 1984). See, also, NLRB v. Cook County School Bus, Inc., 169 LRRM 2882 (CA7, 2002) where the Seventh Circuit approved the authority of the NLRB to grant reformation of a collective bargaining agreement where there was a mistake to the effective date.
Whether the parties have delegated the right to an arbitrator to exercise any, or some, of a federal court’s jurisdiction to reform a collective bargaining agreement is a matter of contract. At least one older federal case has held that a dispute over reformation of a collective bargaining agreement was not properly the subject of arbitration. See, General Telephone v. IBEW, 75 LRRM 2469 (CA 9, 1970).
Whether I have this authority depends on the interpretation of Sections 6.1 and 6.4 of the grievance procedure which outline the authority of the arbitrator. These provisions are drafted more narrowly than the most frequently found grievance arbitration provisions. Section 6.1 defines a grievance as a “complaint by an employee that there has been a violation, or misinterpretation or misapplication” of a provision the Agreement. To this extent this provision is equivalent to the frequently used broad arbitration provision which allows an arbitrator to hear “any dispute involving the interpretation, application or enforcement of a provision of the agreement.” That is the most common form of arbitration provision Some agreements also have general or specific restrictions beyond the frequently stated arbitration provision. In this regard, the parties have denied the arbitrator the right to “amend, modify, nullify, ignore, add to, or subtract from” the provisions of the Agreement. This restriction is stronger than the customary language prohibiting an arbitrator from “adding to, subtracting from or modifying” the terms of the agreement. I note that in General Telephone, Supra., the Court concluded that the customary exclusionary language was sufficient to preclude an arbitrator from reforming the agreement in that case.
In the context of the above common arbitration provisions, arbitrators in a large number of cases have nonetheless granted reformation of the terms of a collective bargaining agreement where there was a mutual mistake of the parties (clerical error) in transcribing the terms of their settlement into the written collective bargaining agreement. In those cases, arbitrators have granted reformation based upon clear evidence of the mutual mistake on the theory that they were not modifying the parties’ agreement, but merely enforcing its actual terms. I note that in many of those cases, neither party actually challenged the substantive arbitrability of the reformation issue.
However, the parties to collective bargaining agreements may draft their arbitration provisions even more narrowly than as referenced above, writing either general and/or specific exclusions from arbitration. For example, courts have recognized that the parties intend to limit the authority of the arbitrator when they use language like the word “specific” which appears in Section 6.1 In those cases, the courts have made decisions that some types of grievances are excluded from arbitration even though there is a national policy in favor of arbitration. In Section 6.4, the parties have expressly forbidden the arbitrator from “nullifying,” “ignoring,” and “adding to” the agreement. These provisions raise serious questions as to whether an arbitrator may ever exercise the authority to reform any provision in this agreement.
However, it is not necessary to address the arbitrator’s authority to reform the agreement with respect to clerical errors. The better view is that the arbitrator is forbidden by the restrictions in 6.1 and especially 6.4 from exercising the specific kind of reformation authority which this dispute would require. Not all cases involving requests for reformation are the same. This is not a case involving a mere clerical error in reducing the actual agreement of the parties to a written document, but a case involving the authority of a court to use its broad equitable powers to “fix” the collective bargaining agreement where the parties allegedly made a mutual mistake in negotiating its terms. It is impossible to make a decision in favor of reformation in this case which would not in some part deny one party or the other the benefits it actually sought and won in negotiations. The parties have made themselves sufficiently clear that they do not want their arbitrator to exercise that type of authority. This is a dispute in which the only choice the arbitrator would have if the grievance were granted would be to nullify, amend, or modify the existing provisions of this agreement. I also note that not only did the parties prohibit the arbitrator from “amending, modifying, nullifying, ignoring, adding to, or subtracting from” the provisions of the agreement in Section 6.4, they again emphasized that restriction in Section 6.4 by adding a unique restriction that the “arbitrator shall consider and decide only the question of fact as to whether there has been a violation, misinterpretation, or misapplication of the specific provisions” of the agreement. The exclusion is clear on the point raised in this case, even if it is troublesome in other potential cases. I respect that conclusion by finding that the grievance filed herein is not arbitrable under the terms of this agreement.
Ordinarily, the analysis would have ended with the conclusion that the matter is not arbitrable under the agreement. However, it is conceivable that this case could be remanded for determination by the arbitrator of the reformation issue. It is the responsibility of the arbitrator to insure that as final a decision as possible is rendered in this proceeding. Accordingly, I will make a finding on the key aspects of the reformation issue in order to preclude any possible necessity for this matter to be remanded. Specifically, I conclude that were the matter remanded to me, I would conclude that there has been no mutual mistake and that reformation of this agreement is not warranted.
The Union has failed to show that the Employer ever relied upon the $650 premium figure in the ICCB memorandum. The Employer’s chief, if not sole concern, was ending its share of the premium costs for health coverage for retirees. The Employer lost state funding for this benefit when the new health insurance premium went into effect and it was required to contribute .5% of salary of current employees to pay for the new state-wide benefit. There is no evidence that the Employer ever showed any concern about the benefit to retirees or its cost. Specifically, the better view of the evidence of the statements which the Employer made in response to Union questions concerning the new plan show that it had not significantly investigated the benefits or premiums beyond the sparse information in the memorandum. The Union has, therefore, failed to show that the mistake was mutual.
Further, reformation would not be appropriate under the facts of this case. The memorandum concerned a health insurance program which was going to commence about two years after the memorandum was written. It stated on its face that the health insurance premium of $650 was an estimate. It states: “CMS estimates that by the year 2000, retirees will pay about $650 per year on average ....” Negotiators must be held to exercise reasonable care in assessing the risks associated with information they receive and the corresponding responsibility to address those risks in bargaining. Indeed, the record in this case indicates that Mr. Kopal and the Union team were actually concerned about whether the $650 figure would be accurate. See, tr. p. 31. Under these circumstances this was a negotiation situation in which the risk of the premium being greater was known, or so clearly should have been known to the parties that they should be treated as if they did know. Collective bargaining has a number of techniques available to parties who mutually want to deal with risks of change after the negotiations are concluded. These techniques include without limitation; contract reopeners, guarantees, percentage splits between the parties and alternative benefits. Section 9.3 of the parties’ agreement contains an example in which the parties agree that the Employer will pay 84.25% of dependent coverage. The mere fact that the Union made an error in negotiations does not mean that an arbitrator should legislate a new contract provision under the guise of the doctrine of reformation.
That since the dispute in this matter is not arbitrable under Article 6, the grievance filed herein is dismissed.
Dated at Milwaukee, Wisconsin, this 13th day of February, 2003.
specific benefits of the plan are spelled out in significant detail
For example the parties could have agreed to have the arbitration provision
apply to any dispute arising from or relating to their collective bargaining
agreement. I do note that even
under clauses of this type, forceful evidence
that the parties did not intend a specific type of dispute to be
arbitrable will lead to a finding that a dispute is not arbitrable.
Compare, Graphic Communications International Union v. Nabisco
Brands, Inc., 126 LRRM 3033 (CA 7, 1987) and AIW Local 232 v. Briggs
and Stratton Corp., 127 LRRM 2451
(CA 7, 1988)
for example; Doss Aviation, Inc, 107 LA 39 (Ferree, 1996);
IOOF Home of Ohio, 115 LA 1517 (Florman, 2001); Hibbing
Ready Mix, 97 LA 248 (Imes, 1991); West Contra Costa Unified School
Distict, 107 LA 109 (Henner, 1996);
AT&T Technologies, 96 LA 1001 (Levy, 1991); Gates
Rubber Co., 93 LA 637 (G. Cohen, 1989); Klein Tools, 90 LA 1150
(Poindexter, 1988); In others, the arbitrators found reformation of that
nature substantively arbitrable. See the thorough discussion in School City of Hobart,
110 LA 592, 595 (Goldstein, 1997); discussion in Hill and Sinicropi, Remedies
in Arbitration, (BNA, 2d. Ed. 1991), pp. 418-35.
example, the parties can expressly prohibit the arbitrator from reforming
the agreement. See the
agreement terms in Southwestern Bell, 117 LA 654 (2002).
grievance shall mean a complaint by an employee that there has been a
violation or misinterpretation or misapplication of the specific
terms of this Agreement.” [Emphasis supplied.]
Teamsters Local 315 v. Union Oil of California, 129 LRRM 2249 (CA9,
RCA v. Association of Scientists, 71 LRRM 3196 (CA 3, 1969); Morristown Daily Record, Inc. v. Graphic Communications Union, Local 8N, 126 LRRM 2902 (CA 3, 1987).
School City of Hobart, 110 LA 592, 597 (Goldstein, 1997) holding that
authority to reform was limited only to language actually agreed upon by the
parties and not adding to the terms of the agreement.