OPINION AND AWARD

 

In the matter of Voluntary Arbitration

Between

The International Brotherhood of Electrical Workers (IBEW) Local 2020

And

Lucent Technologies,
Columbus Works

Regarding

FMCS Case Number 020201-04545-6
Grievance No. 01-129

 

APPEARANCES:
FOR THE UNION:    Jerry A. Spicer, Attorney Paul Smith, President Jack Gary, Witness  John Faiella, Witness	FOR THE EMPLOYER: Eric S. Rosen, Attorney Dick Long, Witness Donna Brown, Witness Susan Vanc-Johnson, Witness Sandra Schneider, Witness

An arbitration hearing was conducted November 19, 2002 at the Concourse Hotel and Conference Center, 4300 International Gateway, Columbus, Ohio.

After some discussion the parties agreed that the issue before the arbitrator is: “whether Lucent Technologies breached a memorandum of agreement and/or the collective bargaining agreement with the union when Lucent refused to rehire certain individuals when they failed Lucent’s standard medical exam and drug screen.

            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 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.

            The Memorandum of Agreement which is in contention reads as follows:

September 21, 2001  

MEMORANDUM OF AGREEMENT

On September 6, 2001, Local 2020 and the Company agreed to the following terms and conditions:

Grievance #01-82, Tyrone Maxey, SS#xxx-xx-xxxx, will be granted 10% Night Work Bonus (NWB) differential pay for calculation purposes on the Special Benefit Package (SBP).

Grievance #99-73, Fixture Labs - the Company will pay $5,000 to the Union who will provide names of individuals to be paid.

Six (6) employees previously terminated under the CAP, and one (1) employee tem1inated for job abandonment, will be reinstated and will be held under the conditions previously agreed to (attached). Those employees are:

Name	Social Security	Date Terminated
Brent Young Matthew Prest Lori Scott   Laura Maines Eric May   Renae Rooker   Ora Smith	redacted redacted redacted redacted redacted redacted redacted	06/23/00 02/03/00 07/22/99 05/03/99 02/02/99 01/12/99 09/24/97
One (1) employee also previously terminated under the CAP, will be placed on disciplinary suspension for the period of his absence and returned to work, That employee is::
Elton Jones	redacted	06/22/01

Grievance 01-110, Quentin Anderson's disciplinary suspension (for one-day) will be removed from his record.

Grievance 01-113, Ryan Satir, dismissal under the CAP, case will be reviewed if Mr. Satir is able to provide documented proof that he was a defendant and was in court on the two dates which caused the final steps for termination.

The Testing Program will be changed as follows:

On September 1, 2001 the following changes will take place

Four TT's will be upgraded to the T Tester Classification (T97) (receive no back- pay). These 4 former TT's will also receive one-step pay progression and will progress to the top of the T pay schedule. These four TT's are:

•  Robert Dials
•  Wilma Bocook
•  Mary S. Martin
•  Jack Gary

On October 1, 2001 the following changes will take place:

• Lucent will have only RF and TT Tester positions.

All current Testers will be re-classified into the RF Tester universe (F97).

All current TT's (T98) will receive one-step pay progression and have the Control Rate established at Step 8.

• At "go-down”, any current T or TT presently in test, may bid to Lucent or EMS jobs when posted.
• Current requirements to enter Testing will remain the same.
• T Testers will be required to take any Company offered RF training and become certified.
• All TT's and RF Testers may be assigned to any position in the Testing Universe,
• TT’s  will be surplused first from the Tester Universe when business conditions necessitate a decrease in the workforce. All remaining RF testers will be surplused by seniority,

On October 1, 2001, Tester Overtime pools will be established as follows

• One Circuit Pack pool per shift for the current EMS organizations (Zabor/Bieber)
• One Wired Equipment pool per shift (Smart organization)
• One Repair pool per shift (McDonald organization)
• One Lucent SIC Tester pool (Klaassen/Walker organizations)

On October 1, 2001, the following B level pools will be established:

• The B .level pool will be split for the dock (McGriff/Burke)
• The B level pool will be split for Wired Equipment (Klaassen/Smart)

ALL OTHER OPEN CASES ARE CONSIDERED CLOSED AFTER THIS AGREEMENI IS SIGNED EXCEPT FOR THE FOLLOWING FOUR (4) GRIEVANCES:

01-43 Sean Black Termination

• 01-44 Dalia Trevino Termination
• 96-84 Jerry Combs
• 00-169 National Grievance on outsourcing GPC work to Ryder \

 

Paul Smith                                                  Donna J. Brown
Paul Smith                                                      Donna J. Brown
Local 2020 President                                      Bargaining Agent,
                                                                         Lucent_______________________                               

Conditional Employment Guidelines:;

• No credit for time off roll. Employees rehired would return to work with time credited for previous rime worked until dismissal date.
• Benefits would be based on the employees' time of  eligibility they had when they left roll.
• Employees would be placed back onto the pay level (step) they were on when they left roll. Would be placed back at the appropriate level on the 2000 Wage Schedule without a loss in pay.
• Attendance Issues:

. All conditional rehires would be placed "on the clock" for one full year (52 weeks)

. Each employee would be reviewed at the end of six months service and the following would apply: -

Irregularities-- lf an employee has not exceeded 5 irregularities (step 2), then they would move onto the regular CAP Plan. If an employee does exceed 5 irregularities (is on Step 3 ),then they will remain on the 6-mo1lth program and the next irregularity (within the 52 weeks) would be dismissal.

Absences- At six months, if the employee is on Step 1 or less, they will move on to the regular CAP program. If on Step 2 they will remain on the 6 month program for the balance of the 52 weeks and the next .occasion of absence would be dismissal.

• No occurrences drop off before the 52 rolling weeks are up.
• No attendance review committee hearings will be held with conditional employees.
• With the issue of FMLA, eligibility requirements would be the same. Those with over one year of service upon rehire are eligible, however employees must also meet the 1,250 hours worked upon their return, in order to be eligible.

                                                                                    ____________________

Relevant provisions of the Collective Bargaining Agreement include:

Article 1

ARTICLE 1 - RECOGNITION

1.  The COMPANY hereby recognizes the UNION as the exclusive representative of all hourly- rated production and maintenance employees at the Columbus Works, excluding office clerical employees, plant clerical employees, professional employees, watchmen and guards and supervisors as defined in the Act.

2.  This recognition complies with the certification of the National Labor Relations Board dated April 11, 1958, in Case Nos. 9-RD-3336 and 9-RD-3338, and the certification of the National Labor Relations Board dated December 10,1959, in Case No. 9-RD-3629, and Case No. 9- RD-966 dated June 19... 1980

Article 2

ARTICLE 2 - RIGHTS AND OBLIGATIONS

1. Management of the Business

The right to manage the business and to direct the working forces and operation of the business, subject to the limitations imposed by this Agreement, is vested in, and retained by, the COMPANY.

2. Federal and State Laws

In the event that any provision of this Agreement should be modified or deleted to conform to any federal or state law or regulation, or any order, determination, ruling or regulation of a federal or state executive or administrative agency or court, the COMPANY shall notify the UNION in writing. Negotiations shall then take place if requested by the UNION.  in the event of such negotiations, the changes shall not be implemented until (a) agreement is reached, or (b) the COMPANY determines that timely action is required by the law, regulation, order, determination or ruling, whichever occurs sooner.

3. Nondiscrimination

(a) There shall be no discrimination on the part of the COMPANY or the UNION, or its officers, members, representatives or agents, against any employee because of membership or non-membership in the UNION.

(b) No employee shall be subjected to prejudice or discrimination because of action taken by representatives of the UNION in presenting grievances instituted for such employee under the provisions of this Agreement.

©    Neither the UNION nor its officers, members. representatives or agents. will intimidate or coerce employees into joining or continuing their membership in the UNION.

(d) Neither the COMPANY nor the UNION shall discriminate against any employee because of such employee's race. color, creed. religion, national origin, citizenship, sex, sexual preference or orientation. marital status, age, physical or mental disability or status as a disabled veteran or a veteran of the Vietnam era.

The following Letter from the National Agreement was cited in this arbitration.

National Memorandum

DRUG TESTING

May 31,1998

Mr. R. V. Maly, Assistant to the Vice President, CWA

Mr. F. P. Possinger, President, System Council EM-3, IBEW

Mr. R. F. Morrison, Chairman, System Council T -3,IBEW

This will confirm our agreement concerning drug testing of employees pursuant to current regulations of the Department of Defense (000) and Department of Transportation (DOT).

The Company and the Unions recognize that, during the life of the agreement, certain of the Company’s, employees, will be or may become subject to such laws or regulations. The Company and the Unions agree that drug testing including, but not limited to, random drug testing, of bargaining unit employees may be conducted as required by law or government regulation. The Company and the Unions further recognize that current DOD and DOT regulations do not require the imposition of sanctions or disciplinary action against any employee to be found to be using drugs illegally. Accordingly, the Company further agrees that it will take no adverse action against such an employee.. as a direct and immediate result of information obtained in a test applied under 000 or DOT regulation, other than to transfer the employee from a position that IS subject to the regulations. In the event an employee sues the Union and/or the Company because of the enforcement or Company's compliance with such regulations, the Union shall be held harmless by the Company.

The Company further agrees to notify the Unions if it enters into a contract with the DOD which includes the "Drug-Free Work Force" clause currently prescribed by DOD regulations or has positions which are subject to regulations under the DOT, and to submit in written form its proposal regarding any testing program. Upon such notification, the Unions agree to enter into negotiations concerning the program. Should agreement not be reached within thirty days from such date of notification, the Company may implement the program only to the extent necessary to meet the requirements of the Drug-Free Work Force clause and applicable

DOD/DOT regulations,

Please confirm your agreement below and return one signed copy to us.

Sincerely,

/s/ M. R. Lewis
Workforce Relations, V.P.

Concurred

/s/ R. V. Maly
Assistant to the Vice President., CW A

/s/ F. P. Possinger
President, System Council EM~3, ISEW

Isl R. F. Morrison
Chairman, System Council T-3, ISEW

            Other sections of the Collective Bargaining Agreement were cited in the original grievance but, since no testimony was offered regarding those sections their reproduction as been omitted in this Award.

BACKGROUND:

            IBEW Local 2020 and the Labor Relations Staff of the Columbus operation of Lucent Technologies, in anticipation of a potential merger with a company called Celestia, entered into negotiations to clear up a number of outstanding grievances.  These talks went on for many months and finally culminated in the Memorandum of Agreement printed earlier in this award. 

            As a part of that agreement the Union dropped over 100 grievances and others were settled as described in the document.

            Bullet 3 of the document lists seven persons who had been terminated from employment and stated: “Six (6) employees previously terminated under the CAP, and one (1) employee terminated for job abandonment, will be reinstated and will be held under the conditions previously agreed to (attached).”

            The parties agree that this agreement has been implemented satisfactorily with the exception of three persons named in bullet number 3 of the agreed to document.

            These three persons: Ora Smith, Matthew Prest and Brent Young, were not returned to work for differing reasons.  Ora Smith and Matthew Prest failed a drug test that was given to them and Brent Young failed a medical exam due to high blood pressure.

UNION’S POSITION:

            The Union’s argument is clear and straightforward.  They signed an agreement which states seven persons “will be reinstated.”  There is no mention of a drug test or a medical exam.  Nothing in the attachment mentioned in bullet 3 refers to a drug test or a medical exam. 

            The union argues that management’s position is, at best, Parole Evidence and should not be considered if the language of the agreement is clear and unambiguous.

            The union argues that the individuals who had been previously terminated, had active grievances pending and thus had maintained their employee status.  Further they note that the document refers to the individuals as “employees.”

            The union requests that the three individuals be reinstated with full back pay and made whole.

MANAGEMENT’S POSITION:

            The company claims that, even though it is not written in the Memorandum of Agreement, the Union clearly knew that all returning employees are subjected to a medical exam and a drug test.  They argue that at one negotiations meeting on August 7, management discussed the medical exam requirement and union representatives nodded in agreement.

            Management argues that the seven individuals were “former employees” and had no recall rights.  Further the employer believes the “conditions” alluded to in the Memorandum of Agreement were both written and verbal and that the drug test and medical examination were a “past practice” that must be observed.

            Management points to the testimony of former Labor Relations Manager, Dick Long who maintains that drug screens and medical exams were required of all new hires and re-hires since the 90’s and such exams are a part of “written policy.”

            Management further argues that the Union did not initially object to the giving of medical exams and drug screens and even helped management locate the individuals in order for them to be scheduled for such tests.

            Management believes the arbitrator should deny the grievance and not reinstate any of these three individuals.  The arbitrator requested, and both parties complied, that the parties discuss remedies in their briefs, should the grievance be sustained.

            Management argues that any remedy should be limited to Ora Smith since she was the only affected party in attendance at the arbitration hearing.[1]

            Further the company argues that because the union never put any evidence in the record that any of the three individuals sustained any financial loss, thus the three employees should not be awarded back pay even if they were reinstated.

DISCUSSION AND AWARD:

            On its face the language of the MOA is clear.  Seven employees, who had been previously terminated, will be reinstated (emphasis added).  If the seven individuals are employees then they enjoy the rights and protections of the Collective Bargaining Agreement.  If they are not employees then they are covered by the unilateral policies of the employer regarding new hires.

            To management this matter is very clear.  The individuals were terminated and the agreement was one to rehire them. 

            The problem of this logic is that the agreement does not state the same premise.  It notes that “these employees” will be reinstated. The American Heritage® Dictionary of the English Language, Fourth Edition,  defines “reinstate”  as restoring to a previous condition or position. 

            To reinstate a terminated employee appears to this arbitrator, to mean that the action taken has been reversed.

            The three individuals were employees and thus entitled to the protections of the Collective Bargaining Agreement at the time they were reinstated.

            The company argues that there was agreement that the individuals being reinstated were to be drug tested and medically examined.  This arbitrator is far from convinced that such an agreement was reached.  Ms. Brown’s was that, she said: “And of course they will have to go through a medical.”  If that is an accurate  statement is not a clear reference that a drug test would be required.

            All union witnesses questioned deny that they ever agreed to, or acknowledged, in any form that the individuals would undergo drug and medical tests.

            It is here that the Parole evidence rule comes into consideration.  If management wanted the individuals to undergo medical exams and drug screens, the MOA could have noted that fact.  Absent it, the language is clear and unambiguous. 

Arbitrator Walter N. Kaufman comments on “Parol Evidence” in a 1999 case. 

“Notwithstanding its name, the parol evidence rule is not a rule of evidence but a rule of substantive law, the effect of which is to define the subject matter to be interpreted. To that end, the rule precludes consideration of contemporaneous oral agreements and prior oral or written agreements which concern the same subject-matter, and which are offered in order to add to or vary the agreement in issue.”[2]

An exception to the Parol Evidence Rule is explained by Arbitrator DiLauro when he notes: “…evidence of pre-contract negotiations is admissible to aid in the interpretation of ambiguous language as an exception to the parol-evidence rule.” [3]

          Since the wording of the MOA is not ambiguous there is no exception of the parol evidence rule involved in this case.

          Let us examine the company’s argument that Lucent had a “Past Practice” of administering medical exams and drug screens. 

          The key witness in this matter was Mr. Long.  Mr. Rosen asked:  “Was it Lucent’s practices then to give new hires, rehires and persons returning from layoff a medical exam and drug screen?

          Mr. Long responded: “Yes, sir, everyone by the 90’s, everybody was taking a drug screen and a medical exam.”

          Mr. Rosen later asked: “The company’s policy to give new hires and rehires, is that part of a written policy?”

          Mr. Long goes on to talk about the personnel policy that was later introduced by Ms. Susan Vanc-Johnson.

          Both Mr. Long and the policy are talking specifically about applicants (new hires and rehires).  As stated earlier, the persons involved in this case do not have the same status as an applicant.  The MOA does not say they are new hires.  Rather it refers to them as employees.

          Next management argues that “Lucent had the right to give the seven individuals …. A medical exam and drug screen pursuant to the Management Rights Provision of the CBA.”

          This arbitrator agrees in part.  Unless restricted by the collective bargaining agreement, management has the right to test employees for fitness for duty at any time.  Arbitrator John D. Perone, in the Pacific Towboat case, held that the company had a right to  “exercise traditional management rights to assure grievant was fit for duty through a complete physical” when he was reinstated to his position as the result of an arbitration award overturning his termination.[4]

          The matter of Drug Testing is a separate and distinct matter.  It is generally held that permitted drug testing of employees must either be for “probable cause” or pre-employment.  Otherwise, in a unionized workplace, there exists a duty to bargain on the subject of drug testing.

          The Supreme Court has held in Johnson-Bateman[5]  that Drug Testing is a mandatory subject of bargaining.

          At Lucent, the only reference this Arbitrator can find to negotiated drug policy is the national letter cited dated May 1998.  That letter clearly limits its scope to employees who are covered by Department of Transportation and Department of Defense regulations.  No evidence was introduced to suggest that the three employees in question were subject to such regulations.

          Therefore I must conclude that the contract is silent in giving evidence that the parties ever agreed upon a drug testing policy that would apply to the two employees who are party to this grievance.

          This arbitrator certainly understands the desire of management to provide a drug free workplace and, in no way condones the use of drugs..  However the job, of an arbitrator is limited to interpretation of the clear language of the Agreements reached between the parties (in this case both the Memorandum of Agreement and the Collective Bargaining Agreement).

          Arbitrator D.L. Howell, in a similar case noted that an arbitrator cannot reach beyond the plain language.

.'' It is a principle of contract construction that arbitrators give words their ordinary and popularly accepted meaning.  In this respect, under the parol evidence rule, a written agreement may not be changed or modified by any oral statements or arguments made by the parties in connection with the negotiation of the agreement. A written contract consummating previous oral and written negotiations is deemed, under the rule, to embrace the entire agreement, and, if the writing is clear and unambiguous, parol evidence will not be allowed to vary the contract.  While some might argue that arbitrators should consider any evidence showing the true intention of the parties and that this intention should be given effect whether expressed by the language used or not, the general denial of power to add to, subtract from, or modify the agreement provides special justification for the observance of the parol-evidence rule  by arbitrators.” [6]

AWARD:

For the reasons herein stated I find that Lucent Technologies did violate the Memorandum of Agreement when it failed to reinstate Ora Smith, Matthew Prest and Brent Young.

The appropriate remedy is reinstatement of Ora Smith and Matthew Prest. (Brent Young’s situation is different and I will deal with it later in this award.)

The Company argued that only Ora Smith should enjoy the benefits of this award because she was the only person to attend the hearing.

This arbitrator knows of no requirement that all grievants be present at the hearing.  If there was information the company needed from any of them that person could have been subpoenaed.[7] 

The Company asserts that since no evidence was entered regarding financial loss on the part of the three individuals, then no money should be awarded.  This arbitrator assumes that a person who is terminated has suffered a loss.  The amount of that loss is determined in the award and mitigation is then worked out by the parties following the issuance of the award.

Ora Smith and Matthew Prest are to be reinstated with back pay, and otherwise made whole, from the date the other four individuals were placed back on roll.  The amount of back pay shall be reduced by interim earnings and other commonly accepted mitigation factors.

Brent Young is in a different situation.  Because the company has the right to medically examine employees and because Mr. Young was determined not to be “fit for duty” at that time then he was properly denied reinstatement..

The question is how long a period should Mr. Young have been given in order to establish his ability to return.  The company gave him significant opportunities and he either did not pass the blood pressure test or did not take it.  We do not know if he would have gotten his blood pressure under control in the next week or so, if he had continued to test.

Mr. Young is to be given one additional opportunity to return to work.  The company may, if it chooses to do so, require him to be examined within two weeks of the receipt of this award.  If Mr. Young passes the blood pressure examination he will be reinstated without back pay.  If he does not do so, then we will not be eligible for further consideration for reinstatement.  If the company does not choose to exercise its right to have him examined then Mr. Young will be reinstated without back pay.

The arbitrator will retain jurisdiction over this matter in regard to the determination of back pay and benefits and their proper mitigation, as well as any retesting of Mr. Young.

          To the extent herein stated, and for the reasons included in this award, the grievance is granted.

          Issued at London, Ohio this 27^th Day of February, 2003

_________________________ 
N. Eugene Brundige, Arbitrator