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Title: Cable Manufacturing & Assembly Company and Chicago and Central States Joint Board
Date: May 12, 2003
Arbitrator: 
N. Eugene Brundige
Citation: 2003 NAC 120

OPINION AND AWARD

In the matter of Voluntary Arbitration
Between
Chicago and Central States Joint Board, UNITE, AFL-CIO, CLC
And
Cable Manufacturing & Assembly Company, Inc.
Regarding
FMCS Case Number 031122 –02523-6
Jeff Murphy, Grievant

APPEARANCES:

            FOR THE UNION:               FOR THE EMPLOYER:
Ronald Willis, Attorney
Jeff Murphy, Grievant
Joe Buonadoma, Area Director UNITE
Rick Van Meter, President, Local 3636
Mike Vickers Jr., Business Agent UNITE
James Ferber, Attorney 
Terry Williams, VP, CMA
Roger Ellis, Mfg. Engineer
Dale Ousley, Tool/Maint. Mgr.
Marvin Byers, Maintenance
      Darell Everly, Maint. Super.

            An arbitration hearing was conducted March 19, 2003 at Bolivar, Ohio.  The issue presented to the arbitrator was; “Did the Company violate Article 8.4 (Seniority) of the Contract when it laid off Jeff Murphy rather than Marvin Byers on August 16, 2002, as a part of it’s reduction in force?  If so, what is the appropriate remedy? 
            Both parties were given full opportunity to examine and cross- examine witnesses, pose arguments and present their respective cases.  Both advocates presented their respective cases competently and professionally.  Both parties timely submitted post-hearing briefs, which convincingly summarized the positions of the respective parties.  All evidence, arguments and views were considered by the arbitrator in reaching the decision stated herein.
            At the hearing the parties agreed that the matter was properly before the arbitrator for determination.
            In that this grievance deals with a matter of contract interpretation, the union presented its case first.

Relevant provisions of the Collective Bargaining Agreement include:

Article 8.1. 
Seniority for the purposes of this Agreement shall be defined as an employee's length of continuous employment with the Employer from the date an hour of most recent date of hire. Unless otherwise stated in this Agreement, seniority shall be applied on a plant wide basis. When two or more employees are hired on the same day, their plant seniority shall be determined by their clock number.

Article 8.4. 
Layoffs because of lack of work shall take place according to the following procedure: ***
b. Thereafter the least senior employee within a classification on the shift, provided the senior employees have the skill and ability to perform the available work. 
c. Employees successfully bidding on new vacancies. 
d. Determinations of which employee is to receive the job assignment will be based upon qualifications (i. e. attendance, experience, skill, ability and fitness to perform the work) and seniority. Qualifications being reasonably equal, the most senior employee shall be awarded the position.

Article 8.8 
Except as otherwise specifically provided in this Agreement, any time a selection is to be made from employees holding seniority under this Agreement, including, but not limited to, promotions, demotions, transfers and filling of vacancies, seniority shall be the determining factor whenever the relative experience, skill, ability and fitness to perform the work is reasonably equal among the affected employees. 
Article 13.2(b) 
.the arbitrator...shall not have any power to add to, subtract from, or modify any of the terms of this Agreement.
Article 18.4
The term “classification” as used in this Agreement shall include the  following:

                        Class B                                     Class C

                        Maintenance Mechanic               Sr. Maintenance Mechanic

BACKGROUND:

            Cable is a manufacturing corporation located in Bolivar, Ohio.  During 2002 the company determined it would need to accomplish a reduction in force.  Because there was a reduction in the number of production staff, it was decided that there should be a corresponding reduction in the number of maintenance personnel.
            Prior to this layoff the company employed one maintenance supervisor, one maintenance helper and two maintenance workers.  The night shift was made up of two maintenance workers. 
            Layoffs are accomplished within a given shift thus this case deals only with the day shift employees.
            The maintenance helper performed light machine maintenance and was more senior than the two other bargaining unit employees on the day shift and thus it was determined not to lay her off.
            The decision was made to reduce the maintenance workers on the day shift by one.
            The two individuals involved began their work with the company on the same day.  Mr. Murphy, the grievant was randomly assigned a higher “clock number” than Mr. Byers.  According to the contract, ties in seniority are broken by the higher “clock number.”  Both men were hired into the classification of mechanic, which was the only appropriate classification in the contract at that time.  Mr. Byers was hired in at 25 cents more per hour than Mr. Murphy.  Since that time each man has received the same across the board increases as the other.

            When completing their reduction in force, the company laid off Mr. Murphy and retained Mr. Byers.

UNION’S POSITION:
            The Union contends the contract is clear.  Mr. Murphy has seniority over Mr. Byers and thus he should have retained his position.  They argue that the company’s argument that Mr. Byers is more competent than Mr. Murphy in working with electrical projects is irrelevant in that Mr. Murphy has done the electrical assignments he has been given and the company has never indicated to Mr. Murphy that his work related to electrical projects was deficient.  They note Mr. Murphy has successfully taken electrical courses.
            The Union notes that Mr. Murphy was assigned specific departments within Cable Manufacturing and that he had complete maintenance responsibility for those assigned departments.  They also note that on certain days of the week Mr. Murphy was the only maintenance worker on duty for the entire operation.

COMPANY’S POSITION:
            The company offers several justifications for its decision to lay off Mr. Murphy instead of Mr. Byers.  
            Their first rationale is that Mr. Murphy and Mr. Byers are in two different classifications.  The company argues that Mr. Byers is a Master Mechanic and Mr. Murphy is a Senior Mechanic.  Since there is only one person within each classification on the day shift, then the least senior person in that specific classification was laid off.
            The next argument advanced by the company is that the language which states: “skills and ability to perform the available work” permits the retention of Byers of Murphy because Mr. Byers “has far greater skill, ability and qualifications as a maintenance mechanic.” [1]
            The company goes on to argue that the “available work” is electrical in nature and the Grievant lacked the necessary electrical skills and ability.
            Finally the company argues that the grievant is more senior only by the “luck of the draw.” [2]

DISCUSSION:
            There is no question in this Arbitrator’s mind that Mr. Murphy has more plant seniority than does Mr. Byers.  There was ample evidence that in other seniority applications, Mr. Murphy was recognized as having more seniority than Mr. Byers.
            It is common for Contracts to provide a mechanism for breaking ties in seniority.  The “clock number” is as good a tie breaker as any other.
            To ignore that “tie breaker” at the time of a layoff would render that section of the Collective Bargaining Agreement meaningless.  This is clearly an act that lies outside the authority of any arbitrator.
            The more relevant question, then, is whether or not Mr. Byers and Mr. Murphy occupy the same classification.  They did when they were hired but the company contends new classifications were created as a part of the Employee Advancement Program agreed to by the union and the company.
            The union contends they did not agree to different classifications.   
            Absent such an agreement the clear language of the Contract must stand and the two men are clearly in the same classification.
            To resolve this question the Arbitration turned to an examination of the program itself.
            While the program is certainly a positive move to benefit both the employee and the company, there is no indication that it was intended as a Memorandum of Understanding modify the contents of the Collective Bargaining Agreement.  The parties have utilized the mechanism of Memoranda or Understanding on at least two occasions in the current agreement but this program is not drafted in that form.
            The program uses the terms “levels of Maintenance Mechanics” but does not refer to new classifications.
            The Company introduced job descriptions denoting the differences between the “Sr. Mechanic” and the “Master Mechanic.”  The Union President testified that he had never seen these documents.  Even if they were to be given weight, it must be noted that they do not refer to a different “classification” only a different job title.
            An examination of Article 18 “Classifications and Wages” at 18.4 notes “The term ‘classification’ as used in this Agreement shall include the following.  It then lists a group of “Class A” positions which includes ‘Maintenance Helper’, a group of “Class B” positions which includes the ‘Maintenance Mechanic’, and a group of “Class C” positions which includes the ‘Sr. Maintenance Mechanic’.   In the program the new level of “Master Mechanic” remains a Class C position.
            Finally it must be noted that the answer to Mr. Murphy’s grievance which was prepared by Mr. Everly and affirmed by the Plant Manager makes no mention of the two men being in different classifications.
            I must conclude that there was no meeting of the minds that the Contract has been amended to provide for a separate classification of Master Mechanic and Mr. Byers and Mr. Murphy are in the same classification for the purpose of layoff.
           
Having established that Mr. Murphy is the most senior employee and the two men are in the same classification for layoff purposes, the burden of proof shifts to the company who must now convince the arbitrator that they are justified in selecting the junior employee over the senior according to the language of 8.4b where it states in specifying the order of layoff: “Thereafter the least senior employee within a classification on the shift, provided the senior employees have the skill and ability to perform the available work.”
            The company presents an impressive case regarding Mr. Byer’s superior abilities in the electrical field.  The Arbitrator is persuaded that Mr. Byers is more experienced in electrical work than is the grievant.  However, the contract does not provide for the more  (emphasis added) qualified employee to be retained.  The question is whether the senior employee has the skill and ability to perform the available work. 
            Let’s review what we know about Mr. Murphy’s work record.
            a.       There appears to be no question that Mr. Murphy can perform the mechanical functions of the position.
            b.       Mr. Murphy has successful taken two courses in electricity at the local Technical College.
            c.       Mr. Murphy has performed some electrical tasks as a part of his duties.
            d.       Most complex electrical tasks have routinely been assigned to Mr. Byers because of his greater experience.
            So the final question to be considered remains: Does the grievant have the “skill and ability to perform the available work?”  This Arbitrator simply does not know.  The presumption must be that he can perform such duties based upon the fact the company did not identify any deficiencies in his work prior to the layoff.
            Faced with a similar dilemma, Arbitrator Knapp, in United States Steel Corporation, 82 LA 655, provided the senior employee with a trial period in which to demonstrate his ability to perform the work.
            As a part of the remedy in this matter, this Arbitrator will offer that option to the company.

AWARD:
            The grievance is granted.
            The Arbitrator offers two possible remedies in this matter.  The company may elect either one by notifying the Union President within 7 days of the receipt of this award.  Failure to so notify the union means that remedy A becomes the only available remedy.

(A)              Mr. Murphy is to be reinstated to his former position with full back pay and benefits. His seniority record will be adjusted as though he had not had a break in service.  The Arbitrator retains jurisdiction only as it related to the implementation of this award.

(B)              Mr. Murphy is to be reinstated for a trial period of sixty (60) days during which time he will be assigned all regular duties that might normally fall to his position.  He is expected to successfully perform all of them.  He is to receive the same assistance from supervision that any employee might expect.  If he successfully performs all duties during the sixty (60) day trial period, he will be regularly reinstated and will receive full back pay for the period of time he was laid off until the beginning of his trial period.  He will be credited with seniority as though he had not had a break in service.  If he does not successfully complete the trial period, he will be paid for the trial period and placed back on layoff status.  The Arbitrator will retain jurisdiction during this time to assure the trial period is a fair opportunity for the grievant to demonstrate his ability to perform the available work and to resolve any differences that might arise.

            Issued at London, Ohio this 12th  day of May, 2003.

_____________________________

N. Eugene Brundige, Arbitrator


[1] From the Company’s brief at page 6.

[2]
From the Company’s brief at page 11.

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