Title: Graphic Packaging International and Association of
Western Pulp and Paper Workers
Federal Mediation and Conciliation Service
This arbitration arises pursuant to
a collective bargaining agreement (hereinafter the AGREEMENT) between the
ASSOCIATION OF WESTERN PULP AND PAPER WORKERS, LOCAL 78 (hereinafter the UNION),
and GRAPHIC PACKAGING INTERNATIONAL, INC. (hereinafter the COMPANY or EMPLOYER),
under which DAVID GABA was selected to serve as Arbitrator and under which his
Award shall be final and binding among the parties.
A hearing was held before
Arbitrator Gaba on May 13, 2004 at Portland, Oregon.
The parties had the opportunity to examine and cross-examine witnesses,
introduce exhibits, and fully argue all of the issues in dispute.
A transcript of the proceedings was provided. Both parties filed post-hearing briefs on July 23, 2004.
On behalf of the Union:
Thomas K. Doyle
On behalf of the Company:
Jerry S. Nicholson
During the period of time relevant
to this Arbitration, the Association of Western Pulp and Paper Workers, Local 78
and Graphic Packaging International, Inc. were parties to a collective
bargaining agreement dated March 1, 2002 through February 28, 2006.
Union and the Company did not stipulate to the issues, but rather advocated
different wording of the issues. The
Union formulated the issues as follows:
1. Was the processing of the
2. Did Graphic Packing
violate the collective bargaining agreement when it classified workers in the
rewind position of Extruder #3 as “labor pool” rather than “helpers”?
Company formulated the issues as follows:
1, Was the grievance filed in a timely manner in accordance with Section 17, Handling of Complaints and Arbitration, of the current Labor Agreement?
2. If so, is the “Letter of Understanding” entered into between the Company and the Union on August 2, 2002 a valid and binding agreement?
3. If not, did the Company violate Section 3, Management, of the current Labor Agreement by assigning the work on Extruder #3 to an Operator, Helper and Labor Pool employee as contended by the Union in its grievance?
The Arbitrator has
determined the issues to be:
1. Was the grievance filed in a timely manner in accordance with Section 17, (Handling of Complaints and Arbitration) of the current Labor Agreement?
2. If so, is the “Letter of Understanding” entered into between the Company and the Union on August 2, 2002 a valid and binding agreement?
The “AGREEMENT Between GRAPHIC
PACKAGING CORPORATION, North Portland Plant, And THE ASSOCIATION OF WESTERN PULP
AND PAPER WORKERS acting through its North Portland Local Union No. 78”
contains the following policies that are relevant to this Arbitration:
SECTION I – PURPOSE
AGREEMENT, made and entered into this 11th day of March, 2002
by and between North Portland Plant of Graphic Packaging Corporation, which is hereinafter called “Company,” and THE ASSOCIATION OF
WESTERN PULP & PAPER WORKERS, hereinafter called “Union”, acting
through its North Portland Local Union No. 78.
The purpose of this agreement
is to promote and maintain mutually satisfactory industrial and
economic relationships between the Company and the Union which will further to the fullest extent possible the safety and welfare of
the employees, economy of operations,
quality and quantity of output, cleanliness of the plant
and protection of the property. Both
will abide by this agreement, it being their
purpose to settle all differences without disturbance to industrial peace.
2 – RECOGNITION
Company recognizes the Union as the sole collective bargaining agent for the
employees covered herein as to wages, hours and working conditions.
The term “employee” as used in this agreement shall include all
production and maintenance employees of the Company employed at its North
Portland, Oregon plant and any expansion or relocation thereof within a fifty
(50) mile radius of the present plant site, but shall not include office
employees, clerical employees, research employees, sales personnel,
administrative e4mployees, professional employees, guards and supervisors as
defined in the Act.
the Company nor any supervisor shall have any private understanding or agreement
with any individual employee or group of employees in conflict with this
3 – MANAGEMENT
management of the plant and the direction of the working forces, including the
right to hire, suspend or discharge for just and sufficient cause, transfer and
the right to relieve employees from duty because of lack of work or for other
legitimate reasons, the scheduling of work and assignment of employees to such
work, the control and regulation of all equipment and other property of the
Company and the determination of the quality and quantity of work to be
produced, are vested exclusively in the Company.
Except as provided in the following sentence of this Section 3, this
enumeration of management prerogatives shall not be deemed to exclude other
prerogatives not herein enumerated. However,
nothing contained in this section shall be applicable if inconsistent with any
of the other terms of this agreement. The
Company shall not exercise any of its management prerogatives for the purpose of
discrimination against any employee. Disputes
arising under this section shall be subject to the grievance procedure set forth
in Section 17 hereof.
Union has all rights which are specified in the subsequent sections of this
agreement and retains all rights granted by law except as such rights may be
limited by provisions of this agreement.
Company retains all rights except as those rights are limited by the subsequent
sections of this agreement. Northing anywhere in this agreement (for example, but not
limited to, the recognition and/or arbitration sections) shall be construed to
impair the right of the Company to conduct all of its business in all
particulars except as modified by the subsequent sections of this agreement.
failure of the Union to enforce any of the provisions of this agreement or
exercise any rights granted by law or the failure of the Company to exercise any
rights reserved to it or its exercise of any such right in a particular way
shall not be deemed a waiver of such right or a waiver of its authority to
exercise any such right in some other way not in conflict with the terms of this
SECTION 6 – SENIORITY
The Company agrees that in granting promotions, transfers, laying off,
recalling employees . . . For
seniority purposes the classifications of bundlers, roll wrappers, (offbearer/packer),
and shall be considered Labor Pool –not in departments.
10 – WAGES AND SPECIAL CONDITIONS
It is the intent of both the Company and the Union that employees in
progression shall, during the progression period, receive as much experience in
their trade as it is practical for the Company to give them without making extra
work. To this end, there shall be no restrictions on classification
If the employee in progression does not make satisfactory progress during
his/her progression period, he/she may be transferred to the labor pool.
An employee in progression who has the seniority and qualifications to be
promoted must accept the promotion when offered to him/her except for a good and
valid reason acceptable to and mutually approved by the Company and the Union
Standing Committee, and failing to accept same, he/she will be assigned to the
labor pool. It is the intent of the
parties that employees in progression shall work during the entire progression
period. It is also the intent of
the parties that employees shall actually work on the job involved an average of
at least one hundred forty-four (144) hours per month during each progression
period before he/she may advance to the next step.
It is the desire of both parties to move helpers into progression to
provide for vacancies as they may occur in the ranks of journeymen, but the
Company is not precluded from hiring journeymen from the outside, provided it
first explains to the Union Standing Committee the reason for doing so.
The Company will post on the bulletin board a notice advising employees
of the existence of a job opportunity in the Maintenance Department before
hiring maintenance employees from outside the plant.
during the term of this agreement new job classifications are created, the
Company may voluntarily determine the rate of pay for the new job classification
and shall send written notification of such rate to the Union Classification
Committee within one (1) working day of the implementation of such rate.
If the union fails to protest such rate within sixty (60) days of such
notification, the rate established by the Company will become the permanent rate
for the new job classification. If
the Union does protest the rate set by the Company it will be referred to the
joint Job Classification Committee who will meet within fourteen (14) days to
process the complaint in accordance with the procedure set forth in paragraph
10.13 of this Section 10. The
permanent rate so established, if higher than the temporary rate, established by
the Company shall be retroactive to the date on which the employees were
assigned to work in the new classification.
shall be Classification Committee consisting of Union and Company
representatives. The Company representatives shall be appointed by the
Company. The Union representatives
shall be appointed by the Union. The
Classification Committee shall meet within 14 days of notification by either
party. The Classification Committee
shall have the authority to establish new occupations and new classification
whenever they mutually agree that such action is desirable or necessary.
If, during the term of this agreement, the Company makes sufficient
change in the job content of an existing job classification listed in Section 10
or a classification added to Section 10 during the term of this agreement the
Classification Committee may agree to make an appropriate adjustment in the wage
rate of such occupation or classification.
If the Classification Committee fails to agree on any such matter, it may
be submitted for consideration in subsequent labor contract renewal negotiations
and shall have an effective date as agreed upon in those negotiations, but shall
not result in a charge against the cost package of contract improvements in
Union Committee shall be privileged to present recommendations to the Company
regarding the manning in the new job classifications, which recommendations will
be considered by the Company prior to making its decision with respect to
manning, it being understood that management’s decision in this regard shall
be final. After the Company has determined the manning questions, the
further question of who will work in the new job classification will be
determined in accordance with the seniority provisions of this agreement.
NORTH PORTLAND CLASSIFICATION
TABLE (relevant excerpts only)
17 – HANDLING OF COMPLAINTS AND ARBITRATION
The Union shall select from its membership a Union Standing Committee of
at least three (3) employees, one of whom shall be the chairman.
The Union also shall select shop stewards who shall represent the
employees in the plant for the specific purposes stated in this section.
A representative of the Union shall be
entitled to sit with the Union Standing Committee.
The Company shall appoint a Company Committee of at least three (3)
employees which shall represent the Company for the purposes stated in this
Either the Union Standing Committee or the Company Committee shall have
the right to have any individual necessary for purposes of advice or
consultation present at joint grievance or disciplinary meetings as set forth is
Should there be any dispute, complaint or
grievance of any employee of the Union, herein collectively referred to as
grievances, the following procedure shall apply:
Any employee having a grievance shall first
discuss it with his/her supervisor. A
shop steward may take part in the discussion with the supervisor or handle it
with the supervisor alone if the aggrieved employee so requests.
This discussion shall take place within seven
calendar days after the grievance becomes known to the employee.
The two parties shall make an honest effort to settle the grievance; such
settlement shall not be inconsistent with the terms of this agreement.
Settlement of any unwritten grievance
presented informally to the supervisor shall not be used by either party as a
precedent for later disputes, complaints, or grievances.
Step One – Formal:
If the employee cannot achieve resolution to
their grievance, then he/she may present it as a formal grievance.
If a formal grievance is presented, it must be submitted in writing
within 10 calendar days of the date it was first discussed with the supervisor.
The supervisor shall answer the grievance in writing, within seven (7)
calendar days, with a copy to the appropriate shop steward as to the reason for
approving or denying the grievance.
Step Two – Committees
The Union Standing Committee shall make a
timely investigation and decide whether the grievance shall be carried further.
If the Union Standing Committee decides to proceed with the grievance it
shall notify the Company Committee in writing.
The two shall meet within ten (10) calendar days of the request.
The matter shall be discussed and every effort made to settle the
grievance. The Company Committee
shall answer the grievance in writing within seven (7) calendar day of the
Step Three- Plant Manager
If the Union Standing Committee is not
satisfied with the results at the second step, in order to proceed with the
grievance the Union must notify the plant manager within ten (10) calendar days
of receipt of the second step answer.
The Union Standing Committee shall then
discuss, within 30 calendar days, the grievance with plant manager in an honest
attempt to settle the grievance.
The plant manager shall answer the grievance
in writing within seven (7) calendar days of the meeting, giving the reasons for
approval or denial.
If the discussion between the plant manager
and the Union Standing Committee does not result in a satisfactory settlement,
the Union may by written notification, submit the grievance to arbitration.
The Union must submit the grievance to arbitration within forty-five (45)
days from the plant managers written denial.
Matters to be submitted to arbitration shall
be referred to an arbitrator to be chosen by the Company and the Union. In the event the Union and the Company cannot agree upon the
selection of an arbitrator, they shall apply jointly to the Federal Mediation
and Conciliation Service for list of seven (7) persons.
Promptly after the list is received, the
Company and the Union shall strike names from the list in the following manner. The Company and the Union shall determine by lot the order in
which they will strike names and thereafter each shall in that order alternately
eliminate one name until only one name remains on the list, and that person
whose name remains on the list shall become the impartial arbitrator.
The arbitration hearing will be convened as
expeditiously as possible to render a decision.
In matters destined for arbitration, if the parties can agree to facts
concerning the grievance involved, the facts agreed upon shall be reduced to
writing and signed by the parties. The
Union and the Company may agree to a stipulated arbitration hearing.
The written decision of the arbitration shall
be final and finding upon the parties. If
the arbitrator determines that an employee was unjustly terminated and back pay
is awarded, the back pay award shall not exceed six months of lost straight time
earnings. Any unemployment benefits
received shall be deducted from such amount.
The arbitrator shall have no power to add to
or subtract from or modify any of the terms of this agreement.
The expenses incident to the services of the
arbitrator, court reporter and the meeting place shall be shared equally by the
Company and the Union. In the event
the arbitrator’s services are cancelled without a resolution to the grievance,
the party canceling shall be responsible for any cancellation fees.
19 – PROVISIONS FOUND TO BE IN CONTRAVENTION OF LAW
The parties hereto believe that each and every provision of this
agreement is lawful. However, if any provision of this agreement is or should
become in contravention of the laws or regulations of the United States or of
the state in which the plant covered by this agreement is located, such
provision shall be superseded by the appropriate provisions of such laws or
regulations, so long as such laws or regulations remain in force and effect, but
all other provisions of this agreements shall continue in full force and effect.
If the parties are unable to agree as to whether or not any provision
hereof is in contravention of any such laws or regulations, the provisions
hereof involved shall remain in effect until the disputed matter is settled by
the court or other authority having jurisdiction in the matter.
of Understanding-Current Extrusion Dept. Employees
The following is an understanding between AWPPW Local 78 and
Graphic Packaging Corporation North Portland facility.
Current qualified operators will be allowed to keep their shift
preference and take the helper rate. The
choice to be an operator or helper will be allowed on a yearly basis
(approximately Jan. – Dec.).
Union and Management will work together to develop a system to
protect seniority and shift preference.
Department seniority will not be affected.
Management reserves its usual and customary rights.
The North Portland Plant of Graphic
Packaging International manufactures paper products.
Most employees at the Plant are assigned to specific departments on a
permanent basis, but the Plant also has employees assigned to a Labor Pool who
are delegated to different departments as needed. The Agreement was revised for 2002-2006 to include language
designating the Labor Pool job classification as a general “Open
Classification” to confirm established practice of assigning these employees
to departments as needed.
The North Portland Plant has an
Extrusion Department that manufactures plastic-covered paper-products which are
primarily used by the food industry. Prior
to the implementation of the current Agreement, all employees in the Extrusion
Department were classified as operators, and staffing for extruder machines was
done on a team model. There are
three (3) extruder machines in this department; the machine designated as
Extruder #3 is the largest and most complex machine and is the only machine that
requires three (3) employees to operate it.
During negotiations for the current
Agreement, which commenced in mid-October 2001 and were concluded in March,
2002, the Company raised concerns about the necessity for cost-saving measures
in the Extrusion Department. Consequent
to Company proposals for changes to the job classification and staffing
procedures in the Extrusion Department, a job classification of helper was
reinstated and added to that Department in the 2002-2006 Agreement.
This classification incorporates three levels: employees who were employed in the Extrusion Department prior
to March 11, 2002; employees who were employed elsewhere in the Plant prior to
March 11, 2002 and subsequently transferred to the Extrusion Department; and
employees who began employment at the Plant subsequent to March 11, 2002.
Testimony by Union negotiators and management at the arbitration hearing
indicated that it was their understanding that Extruder #3 would be staffed by
one (1) operator and two (2) helpers rather than the previous three (3) operator
team. Helpers are paid substantially less than operators.
On March 14, 2002, Joe Walczyk,
Extrusion and Coating Department Manager, sent a memorandum to Extrusion
Department Associates wherein he indicated a sign-up sheet had been posted so
each employee could indicate whether he/she wished to be scheduled as an
operator or a helper, with the goal of beginning scheduling using those two
categories as of March 25.
On March 20, 2002, Joe Walczyk and
Alan Kirkwood, Chairman of the Union Standing Committee and an extruder
operator, sent another memo to Associates indicating they would entertain
further questions from employees and outlining a process for doing so, with the
understanding that the sign-up roster would be re-posted the week of April 8 and
employees would be expected to make their final choices (between being scheduled
as an operator and a helper) prior to 8:00 a.m. on April 18, 2002.
Mr. Kirkwood and Mr. Walczyk sent a
further memo to the Associates on March 28, 2002 titled “Extrusion
Operator/Helper Transition Information” which addressed classification
preferences and shift preferences and outlined the guidelines that would be
employed in scheduling once the new operator/helper positions were in place.
On June 7, 2002 the Company and
Union representatives met and discussed the implementation of the job
classification change, namely the addition of the helper classification, for
Extruder #3. At this meeting the
Company raised the issue of changing the composition of Extruder #3 staffing,
informing the Union that it intended to staff that machine with one (1)
operator, one (1) helper and one (1) Labor Pool employee, which latter employee
would be responsible for the rewind and roll wrap work on that machine.
The Company maintained that it was within its rights in making this
decision according to the terms of the Agreement.
At a second meeting between Company
and Union representatives held on July 31, 2002 there was further discussion of
the work assignment plan for Extruder #3. At
this meeting the Company reiterated its intention to use a Labor Pool employee
to staff the third position on that machine, namely to rewind and roll wrap.
On August 2, 2002, Jeannie Schell,
Union President; David Freudenthaler; and Alan Kirkwood, Chairman of the Union
Standing Committee, signed a Letter of Understanding on behalf of the Union on
the subject of Extrusion Labor Pool Staffing.
This letter was a result of discussions at the July 31 meeting, and can
be summarized as an agreement by the Union not to challenge the Company’s
right to schedule Labor Pool employees to work on the rewind end of Extruder #3,
in consideration of which agreement the Union was granted four considerations.
The considerations were described as requests of
disqualification/demotion in lieu of termination for four (4) Extrusion
Department employees. These
considerations are colloquially known as “wild cards.”
The Letter of Understanding listed three (3) employees for whom the
considerations would be applied and stipulated that the considerations were not
applicable to employees who had committed what were characterized as “cardinal
sins.” The Letter also contained
the following language:
For a 1-year period, the Company will attempt to schedule two operators
on #3 Extruder. The Company reserves its usual and customary rights
including, but not limited to:
-determining the Lead Operator in charge
of #3 Extruder
-scheduling a Helper in lieu of an
operator if there’s a shortage of qualified Operators who have designated
-not working operators OT if a Helper is
-scheduling a Helper in lieu of an
Operator for training purposes on #3 Extruder
On August 7, 2002, Mr. Walczyk sent
a memo to Extrusion personnel indicating that beginning August 12, Extruder #3
would be staffed by two (2) Extrusion Department staff and one (1) Labor Pool
employee, with the provision that whenever possible the two (2) Department staff
would both be operators. The memo
also noted that the operator/helper selection list would be reopened and would
remain open until August 28 so employees could change their previous choices.
On or about August 12, 2002 the
Company began using Labor Pool employees to staff the third position on Extruder
On August 26, 2002, Local 78
President Jeannie Schell sent a letter to Senior Regional Human Resources
Manager George Karambelas and Director of Operations Michael Stratton
terminating the August 2, 2002 Letter of Understanding effective August 24,
She did so subsequent to a conversation with Kenneth Hardwick, Area Rep
for the Association of Western Pulp and Paper Workers for Oregon, Idaho and
Utah, and acting on his advice. On
the same day she sent a memo to the Local 78 members informing them that the
Letter of Agreement was terminated.
On August 27, 2002, Mr. Karambelas
sent a letter to Ms. Schell indicating the Company would not accept her
withdrawal of the Letter of Agreement and offering to meet with her the
following week to discuss her concerns.
On September 9, 2002, Lenard
Roberts, President of the Association of Western Pulp and Paper Workers, sent a
letter to Mr. Karambelas informing him of the Union’s position that the
Standing Committee did not have the authority to sign the Letter of
Understanding because the Committee’s authority did not extend to any
additional agreement that would change the negotiated and ratified Agreement
On September 10, 2002, Mr. Kirkwood
filed a First Step Grievance, No. 16-02, on behalf of the Union.
The Grievance was stated to be “Changed Bargained Job to Labor Pool”
and the Existing Agreement Violated was listed as “2003 Bargain - Section
1-10.12 - 10.13 - - 10.14 - 10.2 - 10.3 - 10.”
The Desired Settlement was noted to be “Return job to dept.
Not labor pool. Make employees whole.”
On September 13, 2002, Mr. Walczyk
responded to the First Step Grievance. His
response as department head was as follows:
The position in question only requires
labor pool skills and responsibilities. Staffing
is consistent with Section 3 of the Labor Agreement.
The contract has not been violated.
Grievance is untimely.
October 7, 2002, in response to Joe Walczyk’s denial of the First Step
Grievance, Alan Kirkwood filed a Step 2 Grievance.
Company denied the Second Step Grievance on October 9, 2002, which response was
received by the Union on October 14. The
Company response stated:
filing of this grievance violates the agreement reached on August 2, 2002.
Additionally, the Company considers the Union’s actions as bad faith
bargaining. This Grievance is also
October 23, 2002, Alan Kirkwood filed a Third Step Grievance and requested that
George Karambelas and Michael Stratton contact him to set up meeting times for
On November 22, 2002, Mr. Stratton forwarded a copy of a letter from Alan
Kirkwood listing outstanding 3rd Step Grievances to Mr. Karambelas
with a note indicating they needed to get together to discuss Grievance 06-02
and schedule a Committee meeting time.
February 3, 2003, Mr. Karambelas wrote to Mr. Hardwick regarding several
grievances. With respect to
Grievance 06-02, he stated the Company position that it was not arbitrable and
indicated that if the Union believed it to be arbitrable it should retain an
arbitrator to make that determination.
Gaba was chosen as Arbitrator and an arbitration hearing was held before
Arbitrator Gaba on May 13, 2004 at Portland, Oregon.
POSITION OF THE UNION
The Union in its brief
characterizes the grievance as a “relatively simple contract interpretation
case… complicated by a now voided side agreement.”
The Union argues that the grievance was filed in a timely manner because
this is a continuing violation with a new contract violation occurring daily, i.e.,
whenever an employee in the rewind position on Extruder #3 is paid Labor Pool
wages. The Union further states
that the filing should be considered timely even if its argument with reference
to continuing violation is denied, noting that on August 26, 2002 the Local
withdrew from the Letter of Understanding, or “wild card” agreement and at
the Company’s request agreed to meet with Company representatives on September
9. On September 9 the Association
President sent another letter affirming that the Letter of Understanding was
void. The Union notes that the
First Step Grievance was filed the next day and contends that it was thus
timely. The Union points out that
there is no explicit time requirement in the contract language for moving from a
step one to a step two grievance once the former has been denied, but notes that
the Union had the discretion to perform a timely investigation to determine
whether to move to step two, and that the Union filed a Step Two Grievance on
October 7, 2002. The Union contends
that, because its representative did not receive the Company’s October 9
denial of its Step Two Grievance until October 14, the October 23 submission of
the Step Three Grievance was within the ten (10) day limit. The Union also points out that the Union was within the
forty-five (45) day limit in its request for arbitration, as the Third Step
Grievance was denied on January 7, 2003 and the Union requested arbitration on
It is the Union’s position that
the Company violated the Agreement when it failed to maintain the rewind
position on Extruder #3 at helper pay rates, and that the Company has
essentially lowered the wages for that position even though the job
responsibilities have not been changed. The
Union considers the very fact that the Company proposed the Letter of Agreement
to eliminate the possibility of a grievance being filed on this issue as
evidence that the Company knew its behavior was a contract violation and was
attempting to ensure that that violation would not be contested.
The Union points out that no Labor
Pool employees had ever worked on extruder machines prior to the Company
assigning them to Extruder #3, with the exception of one (1) employee who was at
one point assigned to bag and load rolls for an old machine that made wax paper.
It is the Union’s position that the understanding derived from the
negotiations leading to the current Agreement was clearly that the #3 Extruder
would be staffed by one (1) operator and two (2) helpers rather than the three
(3) operators who had previously done so. The
Union also indicates that, while the helper classification was in a sense new to
the current Agreement, in that it had not been in place in the previous one, it
was actually a reinstatement of a job classification that had previously existed
in the Extrusion Department, prior to the adoption of the team model.
The Union notes that the June 7,
2002 meeting was the first time the Company mentioned the possibility of
assigning a Labor Pool employee to the third position on Extruder #3, but that
it was not until the meeting on July 30 that it indicated its definite intention
to do so in proposing the Letter of Understanding that precluded grievance of
such a change. While the change was
implemented on or around August 12, the Union notes that it was not until
several weeks later that the Local was made aware that the Union did not
consider that the Local representatives had had the authority to sign the
disputed Letter of Understanding.
Addressing the Company’s refusal
to cease using Labor Pool employees on Extruder #3, the Union reiterates that
the Company had clearly sought to buy off the Local with “wild cards” for
unrelated disciplinary matters to preclude a Union challenge on the issue of
Extruder #3 staffing. It is the
Union’s position that the Local was within its rights in withdrawing from the
Letter of Agreement at any time, in that it contained no specified term and no
termination consequences. The Union
is emphatic in its belief that the Company knew its staffing changes for
Extruder #3 were in violation of the recently ratified Agreement, in that the
Company had never, during negotiations, raised the possibility of having that
Extruder staffed by one (1) operator, one (1) helper and one (1) Labor Pool
employee, nor did it try to argue that it had done so.
The Union contends that the level
of skill for the Extruder #3 rewind position is significantly greater than that
required by any other Labor Pool assignment, and that the work being done by
these individuals in fact falls under the classification of helper work.
The Union cites hearing testimony by both management and Union employees
in reiterating its conclusion that Labor Pool employees are clearly being used
to do work that should clearly be assigned to helpers only.
POSITION OF THE COMPANY
The Company in its brief begins by
challenging the timeliness of the Union’s grievance and contends that the
Union specifically waived any right to grieve the change to the Extruder #3
staffing procedure when Local representatives on the Union Standing Committee
signed the Letter of Understanding to that effect on August 2, 2002.
The Company’s presentation of the
issues is threefold, encompassing untimely filing of the grievance, the valid
and binding nature of the afore-mentioned Letter of Understanding, and the
Company’s right under Section 3 of the current Agreement to assign a Labor
Pool employee to Extruder #3. The
Company argues that only if the Arbitrator finds that the grievance was filed
timely and that the Letter of Understanding could be waived can he address the
third question of management prerogatives as to work assignments.
The Company states that the Letter of Understanding contained no language
that added or subtracted from the Agreement proper and, given that conclusion,
insists that the Union had no right to grieve the Extruder #3 staffing issue any
further, making the grievance untimely.
Addressing further the issue of
timeliness, the Company turns to the Agreement to bolster its case that the
Union did not grieve the instant issue in a timely manner.
It is the Company’s position that the Union became aware of the issue
of this grievance at the June 7, 2002 meeting, when the Company first raised the
question of staffing Extruder #3 with an operator, helper and Labor Pool
employee. Even if that discussion
and the subsequent discussion on July 30 are construed as the informal stage of
the grievance procedure, the Company reiterates that the Union waived its right
to grieve when it entered into the Letter of Understanding on August 2, 2002.
Taking its argument further, the
Company concludes that even if the Letter of Understanding is found not to be
valid and binding on both parties, the Union was definitely aware of the issue
that is the subject of grievance on August 2, August 7, August 8, August 12 and
August 26 and could have chosen to file a grievance on any of those dates rather
than waiting until September 10. The
Company cites Cincinnati Box &
Partition, 86 LA 1122 (Sincropi 1986) wherein a similar situation occurred
with reference to a grievance being “untimely in relation to any and all of
the events which could have been considered the ‘occurrence’.”
The Company goes on to cite other cases that bolster its contention that
the untimely filing precludes any further examination of the merits of the
Union’s argument. The Company
also disputes the Union’s argument with reference to a continuing violation of
the Agreement, contending that it is not a logical argument.
The Company again notes that the Union was untimely in its filing
regardless of which date is determined to be the first occurrence of the
purported violation of the Agreement, and notes that the Agreement language with
reference to timeliness has been consistently applied in past disputes.
The Company cites Elkouri and
Elkouri to clarify that, while the Company maintained all along that the
grievance was not timely, it was appropriate that it also continue to discuss
the grievance on its merits so as to be prepared for presentation to an
arbitrator, if necessary.
Turning again to the Letter of
Understanding, the Company reiterates its position that that Letter is a valid
and binding agreement that the Local Union Standing Committee had authority to
accept. The Company takes exception
to the Union argument that the Letter was an attempt to substantively change the
Agreement, citing its good faith and reasonable assumption that conditions of
the Letter would prevail and the fact that the Union benefited from the terms of
the Letter. The Company cites past
practice with reference to the Union Standing Committee having withdrawn
grievances in the past on its own discretion, and in this instance was
essentially withdrawing a grievance, albeit before the fact of filing.
The Company’s interpretation of Section 1 of the Agreement is that the
Local has authority to act as a party to the Agreement.
The Company asserts that the terms
of the Agreement, specifically Section 3, give Company management the right to
make decisions as to work schedules and employee assignments, provided such
decisions are consistent with the other terms of the Agreement. It is noted that the Agreement clearly provides that Labor
Pool employees are permitted to work in any department in the Plant.
With reference to Sections 1 and 10
of the Agreement, the Company maintains that nowhere does the language of either
section support the Union’s contention that the Agreement prohibits the
Company from assigning a Labor Pool employee to work on Extruder #3 in lieu of
one of the helpers. The Company
emphasizes that there is no specific restriction against such an assignment in
the Agreement, and cites several decisions that hinged on the reasonableness of
a change of assignment in order to bolster its argument.
The Company argues out that it has not attempted to create a new job
classification nor has it made significant changes to the job content of
The Company notes that the Labor
Pool Classification, designated as “open” in the recent Agreement, has
always performed roll wrap functions across the Plant, and cites Section 6.2
which places bundlers and roll wrappers in the Labor Pool rather than in
departments for the purpose of determining seniority.
Absent specific language to the contrary, the Company reiterates that the
management rights clause of the Agreement allows it broad discretion in making
work assignments for the benefit of the organization.
Several cases are cited wherein jobs were eliminated, past practice was
changed, duties were reassigned, and work groups lost work volume, yet
arbitrators upheld the employers’ rights to reallocate and reassign work based
on contract provisions allowing them to do so.
The Company concludes its arguments
by asking that the grievance be dismissed as untimely.
Should it be revisited, the Company asks that the Letter of Understanding
be found valid and binding, Finally,
the Company asserts that it is within its managerial rights in its assignment of
Labor Pool employees to work on rewind and roll wrap on Extruder #3.
first to the question of whether the Union filing of the grievance was timely
under the terms of Section 17 of the Agreement, I concur with the Union and find
the matter at issue is indeed in the nature of a “continuing grievance,” i.e.,
each time the Company uses a Labor Pool employee rather than a helper to
staff the third position on Extruder #3, there is a new violation.
An extensive body of arbitral opinion regarding asserted continuing
violations exists, and I am in accord with the prevailing view as described by
Elkouri and Elkouri:
arbitrators have held that “continuing” violations of the agreement (as
opposed to a single isolated and completed transaction) give rise to
“continuing grievances in the sense that the act complained of may be said to
be repeated from day to day --- each day there is a new “occurrence” these
arbitrators have permitted the filing of such grievances at any time, this being
deemed a violation of the specific limits stated in the agreement (although any
back pay ordinarily runs only from the date of filing).
is no question that the Union has raised a valid question as to the
interpretation of the Agreement with respect to the question of whether the
Company was within its rights in making changes to the staffing of Extruder #3.
Certainly the Agreement overall does contain some degree of ambiguity.
The Company references the management prerogative language of
Section 3 in defending its actions, but testimony at hearing elicited the fact
that both parties had a clear understanding, when the Extrusion Department
staffing issues were bargained during negotiations, that staffing for Extruder
#3 would be changed from three (3) operators to one (1) operator and (2)
helpers. For the Company to
continue to maintain otherwise could raise questions of bad faith bargaining
during negotiations; when the Company staffed with (1) operator and (2) helpers
it was quite simply getting what it bargained for.
Clearly if the Letter of
Understanding did not exist this would be a simple case of contract
interpretation and the Union would prevail.
The Letter of Understanding
case clearly turns on whether the “Letter
of Understanding” entered into between Local 78 and the Company binds the
Union. In order to prevail the
Union must simply prove that it is correct in its argument that Local 78 had no
authority to enter into the Letter of Understanding.
The standard of proof for contractual disputes is preponderance of the
evidence. Preponderance of the
evidence can be defined as:
standard of proof in most civil cases in which the party bearing the burden of
proof must present evidence which is more credible and convincing than that
presented by the other party or which shows that the fact to be proven is more
probable than not.
The applicable standards for
contract interpretation are well established.
Where the language in a collective bargaining agreement is clear and
unambiguous, the arbitrator must give effect to the plain meaning of the
language. This is so even when one
party finds the result unexpected or harsh.
Words are to be given their ordinary and popularly accepted meaning,
unless other evidence indicates that the parties intended some specialized
As stated by Elkouri and Elkouri:
Arbitrators have often ruled that in the
absence of a showing of mutual understanding of the parties to the contrary, the
usual and ordinary definition of terms as defined by a reliable dictionary
should govern. The use of dictionary definitions in arbital opinions
provides a neutral interpretation of a word or phrase that carries the air of
Union maintains that Local 78 had no authority to sign the Letter of
Understanding and correctly surmises that it was an amendment to the existing
Agreement. I concur with the Union
in its contention that the Letter of Understanding does amend the Agreement.
The Company’s position is that the Letter does not substantively amend
the contract, yet the Company was willing to grant the Local four “wild
in order to obtain it. By seeking
agreement not to grieve the Company’s staffing change in the Extrusion
Department, the Employer was tacitly acknowledging that such change was an
amendment to the parties Agreement.
Can the Local Amend the Contract?
first blush this appears to be a simple case; one of the prime tenets of the
NLRA is that management is precluded from dealing directly with employees or
individual groups of employees. Absent
contract language authorizing the “direct dealing” management would commit
an Unfair Labor Practice (ULP) with every attempted individual negotiation.
The Employer’s position at the hearing that previous agreements entered
into between the Company and the Local constitute a “past practice,” can be
easily disregarded; the parties’ history would only show a pattern of illegal
activity absent contract language allowing the direct dealing.
difficulty I am faced with is that the language of the Agreement title (and of
Section 1, “Purpose,”) clearly states that the Agreement is between the
Company and the Union “acting through its North Portland Local Union No.
I have never before encountered a contractual reference to this effect.
Does the language clearly provide for Local 78 to have authority within
the confines of the contract over and above that usually accorded to bargaining
units by unions?
Absent that language, the Union’s case that the Union Standing
Committee had no authority to enter into the Letter of Understanding would be
upheld. If the afore-mentioned
language governs, it is then axiomatic that when Section 2 uses language
referring to the Union as “the sole collective bargaining agent for the
employees covered herein as to wages, hours and working conditions,” the
definition of Local 78 as the agent of that Union would have already been
is the goal of the arbitrator to interpret the language in the manner the
parties intended. “Arbitrators must strive to determine what the parties were
attempting to accomplish by the contract language used and to effectuate that
Unfortunately, as noted above, there is no showing that the parties ever
had a common understanding of what the language meant and the parties bargaining
history has apparently vanished into the mists of time (there being no testimony
of those involved with bargaining the language in question).
it is impossible to determine the parties intent, one must look at the other
rules of contract construction. It
has long been held that “It is
axiomatic in contract construction that an interpretation which tends to nullify
or render meaningless any part of the contract should be avoided because of the
general presumption that the parties do not carefully write into a solemnly
negotiated agreement words intended to have no effect.”
“The fact that a word is used indicates that the parties intended it to
have meaning, and it will not be declared surplusage if a reasonable meaning can
be given to it consistent with the rest of the agreement.”
line with this principle, another rule of contract interpretation is “that the
expression of one or more subjects excludes all others.”
This legal doctrine is otherwise known as “inclusion
unius est exclusion alterious, i.e., the inclusion of one is the exclusion
The parties at one time chose to use the language:
THIS AGREEMENT, made
and entered into this 11th day of March, 2002
by and between North Portland Plant of Graphic Packaging Corporation, which is hereinafter called “Company,” and THE ASSOCIATION OF
WESTERN PULP & PAPER WORKERS, hereinafter called “Union”, acting
through its North Portland Local Union No. 78.
Clearly the parties meant “through its North Portland Local Union No. 78,” to mean something. One possible meaning is that Local Union No. 78 was the contracting party. This argument is bolstered by the signature page of the Collective Bargaining Agreement which lists signatures for the “ASSOCIATION OF WESTERN PULP AND PAPER WORKERS LOCAL 78.” Clearly an argument can be made that Local 78 was the contracting party and had the authority to amend the contract. While this argument may be flimsy, it is persuasive enough that the Union cannot show another meaning of the language by a preponderance of the evidence. In a truly close case such as this one cannot say that a preponderance of the evidence supports management’s position, however, I can say that the Union has failed to meet its burden of proof.
The burden is on the Union to
establish by a preponderance of the evidence that: the grievance was timely
filed, and that the Company violated the parties’ Collective Bargaining
Agreement when it failed to acquiesce to the Union’s request for termination
of the “Letter of Understanding.”
The Union has established that there has been a continuing violation of
the initial terms of the Agreement that commenced when the Company began to
employ a Labor Pool employee on Extruder #3.
However, the Union has failed to demonstrate by a preponderance of the
evidence that the Letter of Understanding is not binding. The Letter amends the
parties contract. The grievance is
The grievance is denied. The
Union must accept the terms of the Letter of Agreement and the Company may
continue to use Labor Pool employees to staff the third position on Extruder #3.
All fees and expenses charged by
the Arbitrator shall be shared equally by the Union and the Company, as provided
for in Section 17, “Handling of Complaints and Arbitration,” of the
Collective Bargaining Agreement,
 Exhibit J-1
 Exhibit E-14.
 Exhibit E-15.
 Exhibit E-16.
 Exhibit U-1 (G-3, G-4).
 Exhibit E-3.
 Exhibit U-1 (G-5).
 Exhibit U-1 (G-6).
 Exhibit U-1 (G-7).
 Exhibit U-1 (G-8).
 Exhibit J-2.
 Exhibit J-2.
 Exhibit U-3.
 Exhibit U-4.
 Exhibit U-2.
 Exhibit E-4.
 Exhibit E-5.
 Union’s Post-Hearing Brief.
 Company Post Hearing Brief.
 Elkouri and Elkouri, How Arbitration Works, 278 (5th Ed. 1997).
 Elkouri and Elkouri, How Arbitration Works, 197 (Fourth Edition).
 Merriam-Webster’s Dictionary of Law, 1996.
 Seattle School District, 119 LA 481 (2004)
 Elkouri and Elkouri, How Arbitration Works, 490-91 (5th ed. 1997).
 A “wild card” being an agreement that management will forgo discipline for a yet to be committed infraction.
 AGREEMENT Between GRAPHIC PACKAGING CORPORATION, North Portland Plant, and THE ASSOCIATION OF WESTERN PULP AND PAPER WORKERS acting through its North Portland Local Union.
 It should be noted that the Union in this case uses the term “Local” to describe what most other Unions would refer to as a “bargaining unit.”
 City of Davenport, 91 LA 855 (Hoh, 1988).
 Armstrong Rubber Co., 87 LA 146 (Bankston, 1986).
 Elkouri and Elkouri, supra, 493-94 (citing Beatrice Foods Co., 45 LA 540 (Stouffer, 1965).
 Columbia Local Sch. Dist., 100 LA 227 (Fullmer, 1992).
 City of Ann Arbor, 102 LA 801, (Roumell Jr., 1994).
 Emphasis added.