2006 NAC 114 Department of the Army and United Power Trades Organization

Title: Department of the Army and United Power Trades Organization
Date: November 10, 2006
Arbitrator: David Gaba
Citation: 2006 NAC 114

In the Matter of an Arbitration

Between

DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS,
Portland District

And

UNITED POWER TRADES ORGANIZATION

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ARBITRATOR’S

OPINION AND AWARD

This arbitration arises pursuant to a collective bargaining agreement (hereinafter the Agreement) between the UNITED POWER TRADES ORGANIZATION (hereinafter the Union or UPTO), and DEPARTMENT OF THE ARMY CORPS OF ENGINEERS, Portland District (hereinafter the Agency), 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 September 20, 2006 at Bonneville Dam. The parties had the opportunity to examine and cross-examine witnesses, introduce exhibits, and fully argue all of the issues in dispute. The Agency filed a post-hearing brief on October 4, 2006 and the Union filed its brief on October 19, 2006.

Travis Brock, President
United Power Trades Organization
942 Prune Orchard Road
Colfax, WA 99111

James R. Herald
U.S. Army Corps of Engineers
Attn: CENWP-OC
Box 2646
333 SW 1^st Avenue
Portland, OR 97208

The parties stipulated to the following issue for grievance LC-BON-06-01: Is the Agency in violation of the CBA, the BEST charter, 29 CFR 1960 (as incorporated in the BEST charter), or NWPR 385-1-1? If so, what is the remedy?

The Collective Bargaining Agreement contains the following sections that are relevant to this arbitration proceeding:

ARTICLE 6
GRIEVANCE AND ARBITRATION PROCEDURE
GRIEVANCE PROCEDURE
6.1 The purpose of this procedure is to provide for an orderly resolution of complaints by either the Division, the employees or the Union. The grievance may be filed over any matter grievable by law, except for matters specifically excluded from the grievance procedure by this contract.

6.2 Questions of grievability or arbitrability may be referred to arbitration as a threshold matter, if the parties mutually agree to do so. If mutual agreement is not reached, either party may request that a question of grievability or arbitrability be considered as a threshold matter by the arbitrator. A question of grievability or arbitrability that is not raised in writing within ten (10) days prior to the arbitration hearing will be considered waived for arbitration purposes.

6.4 The Union may file a Union grievance concerning its own institutional rights as a Union. Such grievances will be processed according to the same procedures applicable to individual grievances, except that there is no need to name individual employees in the grievance.

6.5 The following are exclusions from the grievance procedure:
a. Any claimed violation relating to prohibited political activities; or
b. Retirement, life insurance or health insurance; or
c. Suspension or removal for national security reasons, Title 5 USC Section 7532; or
d. Any examination, certification or appointment; or
e. The classification of any position which does not result in the reduction of pay of any employee; or
f. Termination of probationary employee or termination of temporary employees; or
g. A preliminary notice of an action which, if effected, would be covered under this grievance procedure or be appealable under statutory procedures; or
h. Non-selection from a group of properly ranked and certified candidates, unless a claim is raised that the non-selection was based on non-merit factors; or
i. Assignments to or from alternate work schedules; or
j. Mistakes in dues deduction withholding by DFAS.

6.6 Certain types of personnel actions (e.g. removals, reductions in grade, suspension for more than fourteen (14) days) may be filed as grievances or may be appealed to the Merit Systems Protection Board (MSPB), but not both. Prior to filing a grievance over such matters, appropriate guidance should be sought from a Union Representative.

6.7 The parties recognize that settlement of the underlying grievance is of paramount importance and that the procedural requirements set forth in this grievance procedure are only to be instructive to the parties as to their respective responsibilities. Other than for the initial submission requirement for a grievance and for an arbitration submission, no time limit can be asserted so as to dispose of a grievance unless the party asserting the timeliness serves on the other party a “notice of intent to invoke the time limit”. The time limit will expire five (5) days after “notice of intent” but not less than the time stipulated in the contract.

6.8 The Division and the Union recognize that grievances are personal in nature and that aggrieved employees have the right to present their own grievances. The Division and the Union endorse the principle of resolving grievances at the lowest possible level. If the deadline for filing or for response set forth in this Article falls on a non-workday then the deadline is extended to the following workday.

6.9 The grievance steps shall be as follows:
a. Step 1
(1) The grievant (either employee or Union) shall notify their Operations Manager (OM) of their grievance within thirty (30) calendar days of the grievant becoming aware of the problem. This notification will be in writing. The written presentation of the grievance must contain the following information:
(a) The identity of the aggrieved employee and the work group in which they are employed;
(b) The details of the grievance;
(c) The article of the Agreement allegedly violated;
(d) The corrective action desired;
(e) The name of the Union Representative, if any;
(f) A description of the discussion between their first line supervisor as to why they could not settle the disagreement. Where a statute provides a longer period of time to file a claim than that provided in this Article, the statutory period shall control.
(2) The Operations Manager (OM) shall have twenty (20) calendar days after receipt of the grievance to adjust the grievance and shall notify the grievant of their decision. This notification will be in writing. If the grievant feels the relationship with the immediate supervisor is such that the grievant cannot reasonably discuss the matter with their first line supervisor, the grievant may discuss it with the next level of supervision.
b. Step 2
(1) If the grievant is not satisfied with the adjustment by the Operations Manager (OM), the grievant has twenty (20) calendar days, after receipt of the OMʼs response, to submit the matter in writing through the OM to the District Operations Chief. The initial written grievance, as submitted to the OM, will be resubmitted with an explanation of why the grievant was not satisfied with the OM's resolution for the grievance.
(2) When the District Operations Chief receives a written grievance filed without Union representation, he/she will immediately inform the appropriate Union Vice President giving the name of the grievant, Project and nature of the grievance.
(3) The District Operations Chief will examine the grievance and if it is found to be a matter within the exclusion of the negotiated grievance procedure, he/she will so advise the aggrieved employee and inform the grievant of the appropriate statutory grievance procedure. Otherwise, he/she will attempt to resolve the grievance and will give a copy of his written decision to the employee, the employee's representative and to the appropriate Union Vice President within twenty (20) calendar days after receiving the grievance.
c. Step 3
(1) After receipt of the grievance, if either the grievant or the Union is not satisfied with the decision of the District Operations Chief, the written grievance may be submitted to the Senior Operations Hydropower Team Leader, Northwestern Division, within ten (10) calendar days.
(2) When the Senior Operations
Hydropower Team Leader, Northwestern Division, receives the written grievance, he/she may meet with the aggrieved employee and a Union Official within ten (10) calendar days after receipt of the grievance. The Senior Operations Hydropower Team Leader, Northwestern Division will give a written decision to the aggrieved employee, the employee's representative, and the Union President within thirty (30) calendar days after receiving the grievance.
d. Step 4
If this decision does not satisfy the Union, the Union may within twenty (20) calendar days after receipt of the grievance, submit a written request to the Division Labor Relations Officer for binding arbitration. Only the Division or the Union may request arbitration.

EXCEPTIONS TO THE STEPS OF THE GRIEVANCE
6.10 When it is mutually agreed by the parties that due to the formal nature of the actions involved and the considerations already given to the grievant's position prior to the initiation of a grievance, that it would serve no purpose to consider the grievance at the first and/or the second steps, they may be waived and proceed directly to the second and/or third step.

ARBITRATION PROCEDURE
6.11 After invocation, the grieving party shall submit to the Federal Meditation and Conciliation Service (FMCS) a request for a list of seven (7) Arbitrators. The parties shall confer after receipt of the list to select an Arbitrator. If they cannot mutually agree upon one of the listed Arbitrators, the Employer and the Union will each alternatively strike one (1) Arbitrator name from the list, with the Union striking first, until one (1) name remains. The remaining person shall be declared the Arbitrator.

6.13 No transcript will be made at the expense of both parties unless mutually agreed by the parties.

6.14 The arbitration hearing will be held, if possible, at the grievant duty station during regular day shift hours of the basic workweek. The employee participants (i.e. grievant or grievants, Union Representative, Arbitrator authorized witness(s) in the hearing will be in a duty and pay status but participants will not be entitled to overtime. The Arbitrator shall rule on all exhibits and evidence offered while at the hearing.

6.15 The Arbitrator shall arrange a mutually satisfactory time to hear the grievance at which time both parties shall appear and present testimony. The Arbitrator will be in complete charge of the hearing. Unless otherwise agreed by the parties, the Arbitrator shall furnish a complete report and award in writing to the Employer and the Union within thirty (30) calendar days following the close of the hearing or within thirty (30) calendar days of the mailing of post-hearing briefs, if a party wishes to file a brief. The Arbitrator's award shall be in writing and shall identify and discuss all issues raised by the parties. The Arbitrator shall refrain from the lengthy repetition or paraphrasing of the partyʼs briefs or arguments. The Arbitrator's fee shall be reduced by ten percent (10%) for every day that the award is mailed later than the date required in this Article.

6.16 Any dispute over the interpretation or application of the arbitrator's award shall be returned to the arbitrator for settlement including remand of awards.

ARTICLE 23
SAFETY AND HEALTH
23.1 The Division and the Union recognize an affirmative obligation to do all that is reasonable to maintain a safe and healthy working environment for employees consistent with OSHA regulations. Likewise, the bargaining unit employees are expected to use all reasonable precautions to consider the safety of themselves and others of the highest priority.

23.4 The parties recognize that disagreements under this Article are to be resolved as soon as practical. Accordingly, problems should be raised by concerned employees at the first available opportunity with their supervisor and may be presented to the project safety committee through the Union Representative.

ARTICLE 28
EFFECTIVE DATE, DURATION AND SCOPE OF THE AGREEMENT AND PAST PRACTICES
28.4 Laws, government wide regulations and this Agreement take precedence over past prac- tices. Existing and future working conditions, which are not inconsistent with this Agreement or law and are established though past practice, will be treated for all purposes as if they are incorporated into this Agreement and may only be modified or terminated through the exercise of the collective bargaining process.

(b) Agencies may elect to establish safety and health committees meeting the minimum requirements contained in this subpart. Where such committees are not established or fail to meet the minimum requirements established by the Secretary, the Secretary is authorized by section 1-401 (i) of Executive Order 12196 to conduct unannounced inspections of agency workplaces when the Secretary determines them necessary.

1-3. Occupational Safety and Health Committees.
1.301. Agency heads may establish occupational safety and health committees. If committees are established, they shall be established at both the national level and, for agencies with field or regional offices, other appropriate levels. The committees shall be composed of representatives of management and an equal number of nonmanagement employees or representatives. Where there are exclusive bargaining representatives for employees at the national or other level in an agency, such representatives shall select the appropriate non-management members of the committee.

1-4. Department of Labor.
1-401. The Secretary of Labor shall:
(i) conduct unannounced inspections of agency workplaces when the Secretary determines necessary if an agency does not have occupational safety and health committees; or in response to reports of unsafe or unhealthful working conditions, upon request of occupational safety and health committees under Section 1-3….

E3.10 COUNCILS AND CONFERENCES
            E3.10.1 DoD SOH Councils
            E3.10.1.1. the Department of Defense has opted not to establish OSH Committees that conform to the provisions of E.O. 12196 (reference (f)). However, at the Department level, the DoD SOH Committee and associated Working Groups, established under DoD Directive 4715.1 (reference (b)), may include employee representatives and shall address SOH matters under the purview of this Instruction.
            E3.10.1.2. At the installation level, DoD Components have the option of whether to form Joint Labor Management Committees (50/50 membership as described in 29 CFR (reference (r)), or to operate local SOH councils. The purpose of the Join Committee or council is to foster mutual cooperation and open channels of communication, make recommendations to the installation commander, and perform such additional tasks as the commander or the chairperson may direct. Although these Councils or Committees are established under this Instruction primarily to address on-the-job personnel safety and health matters, the scope of their considerations should be expanded to include other safety, health, and accident prevention concerns of the command. Components will establish procedures to form Joint Labor Management Committees or SOH Councils at the installation level. SOH personnel shall not chair these committees or councils
            E3.10.1.3. Establishment of councils at DoD Component headquarters, major commands, or intermediate levels, and the local shop or division levels is recommended but shall be at the Component’s discretion.

Appendix E
Occupational Safety and Health Committee
1. PURPOSE. To provide recommendations and technical support to either the Operations Manager or the District Commander on matters of Safety and Occupational Health. An effective Safety Committee should:
            a. Create and maintain active interest in safety and health and the reduction of accidents and incidents.
            b. Discuss and take effective action on the principal accident/incident causing conditions.
            c. Help stimulate an awareness of safety and health issues and foster an atmosphere of cooperation between management and workers.
            d. Identify problems, formulate policy and procedures, monitor and improve workplace health and safety.

3. RESPONSIBILITIES, DUTIES, SCOPE, AND OBJECTIVES.
            a. The Commander:
            (1) Ensures Operating Projects/Facilities integrate safety committees in to their day-to-day operations. The size of the committee will be at the discretion of the Operations Manager. Members should consist of equal representation of management, union representatives, and workers.
            (2) Allows time for the committee to meet and/or conduct inspections.
            b. Operations Manager
            (1) Appoints members to the project safety committee. The size of the committee will be at the discretion of the manager, but should be at least three members to ensure employees from varied backgrounds are involved. The following structure is recommended: project safety officer, union representative and other employees (assigned for specified period, i.e., 12-24 months). Safety committees will develop criteria to ensure proactive committee member participation.
            c. Committee members may perform the following tasks as well as other assignments directed by the Operations Manager:
            (1) Follow up on direct causes of accidents/incidents occurring on the project or facility in order to pinpoint problems and recommend corrective actions.
            (2) Conduct inspections of the workplace on a periodic basis and document findings.
            (3) Record minutes of monthly safety meetings.
            (4) Recommend, schedule, or conduct safety training or safety meeting topics.

The Employer is the Portland District of the U.S. Army Corps of Engineers Northwest Division. The bargaining unit represented by the United Power Trades Organization (UPTO) covers men and women who work in dams in Oregon, Washington, Idaho, and Montana. These are Power Plant Operators, Mechanics, Electricians, Utility Workers, and Warehouse Workers among other trades. The instant case deals with the employees of the Bonneville Dam.

On April 7, 2004 the management of the Bonneville Project officially adopted a policy on workplace safety, the Bonneville Employees Safety Team (BEST) Charter. The charter established the BEST committee at this time as a “resource to promote and help ensure safety at the Bonneville Project.” By definition, this safety committee is one “formed of both management and union members that perform the functions as required under OSHA, CFR 1960.37.” A management-only Safety Council operates in conjunction with the Committee.

It is important to note that in establishing the committee, the agency head opted out of Subpart F of the OSHA regulations. Although the Charter makes reference to guidelines in Subpart F, it is not in fact set up as a certified committee. Choosing to establish a “Subpart F committee” would have entailed a certification process and agreement between the Corps of Engineers and the U.S. Department of Labor. In addition, such a process would have exempted the Project from unannounced safety inspections. It is undisputed that unannounced safety inspections have occurred at the Bonneville Dam since the formation of BEST.

UPTO submitted letters dated September 13, 2004 and November 24, 2004 to the BEST Committee Chairperson addressing safety concerns. These issues were not discussed at the BEST meetings. Union Representative Robert Reams presented concerns regarding the organization and function of the Committee to Operations Manager James Mahar on January 4, 2006 and filed a grievance shortly after, on January 13, 2006.

The grievance was carried through all three steps of the process allowed by the CBA. It was denied at the first step by Mr. Mahar on February 2, 2006. The Step 2 grievance was filed on March 8, 2006 with Ms. Deborah Chenowith, who agreed with Mr. Mahar’s estimation of the issue in her response dated March 29, 2006. At Step 3, the grievance was presented on March 30, 2006 to Mr. Hiroshi Eto and was denied April 27, 2006. Finally, the Union brought the matter to arbitration.

First of all, in order to determine the authority of the BEST charter in this case, it seems beneficial to clarify what a charter is. By definition, a charter is a “document outlining the principles, functions, and organization of a corporate body; a constitution.” [1]

In the BEST charter itself, it is described as a “document defining the formal organization.” In light of these two definitions, a charter is more of a description of the organization than an enforceable “rule”.

In addition, the charter is not a bargained document. While the safety committee resulting from the BEST charter includes both union and management representation, and while union members may have been consulted during its formation, the charter remains a charter and not a negotiated agreement.

The Union very correctly argues that the purpose and safety actions detailed in the BEST charter should be taken seriously for the healthy functioning of the Bonneville Dam. That said, the description of these actions in the BEST charter is not sufficient to legally enforce their practice. While the Union has every right to address concerns about the functioning and effectiveness of BEST within the committee, as defined by the charter, the nature of the document itself does not allow for its being “violated”. It is not enforceable and therefore cannot be violated.

The Union raises the concern that the BEST committee is not acting in compliance with 29 CFR 1960.37. The procedures and regulations outlined in this document are certainly reasonable, but not to the exclusion of other reasonable approaches to workplace safety. The authority of 29 CFR 1960.37 extends to committees created in accordance with Subpart F of the regulations. The creation of such a committee could require an entirely different process than the one which gave rise to the BEST charter. It is an optional route to safety committee formation, not chosen by Bonneville Dam management or the Corps of Engineers in general. Its jurisdiction therefore does not necessarily extend to the BEST committee and its functioning.

While the BEST charter is not, by nature, enforceable, the CBA is. As a negotiated agreement, the CBA is understood to be binding on both parties. The Union correctly references Article 23.1 as one of the key passages in the instant case. Here, the parties agree to do “all that is reasonable” to ensure employee health and safety on the job.

The Union argues that the Agency confirmed the actions described in the BEST charter as “reasonable” by signing the charter. It further contends that the Portland District and Department of Defense found NWPR 385-1-1 and DoD Instruction No. 6055.1 E3.10.1.2, respectively, to be “reasonable” by including them in their official publications. Common sense would confirm that no organization would produce guidelines which it found to be unreasonable. Further, the Northwestern Division, hierarchically superior to the Portland District, upheld NWPR 385-1-1 at Step 3 of this grievance. That said, both the Union and the Division support the guidelines found in NWPR 385-1-1 but draw different conclusions from them: the Division did not find Agency conduct to be in violation of those reasonable guidelines.

This illustrates the Union’s remark that the term “reasonable” is inherently subjective. In order to determine the just application of the CBA in this case, therefore, we must turn to well-established guidelines for contract interpretation.

The applicable standards for contract interpretation are well established. Where the language in the 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 meaning. As stated by 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. Use of dictionary definitions in arbitral opinions provides a neutral interpretation of a word or phrase that carries the air of authority.[2]

Evidence of bargaining history cannot be used to vary clear contract language, however, it can be used to demonstrate latent ambiguity in the language. As stated by Arbitrator Jules J. Justin:

Plain and unambiguous words are undisputed facts. The conduct of Parties may be used to fix a meaning to words and phrases of uncertain meaning. Prior acts cannot be used to change the explicit terms of a contract. An arbitrator’s function is not to rewrite the Parties’ contract. His function is limited to finding out what the Parties intended under a particular clause. The intent of the Parties is to be found in the words which they, themselves, employed to express their intent. When the language used is clear and explicit, the arbitrator is constrained to give effect to the thought expressed by words used.[3]

It is clear that a union-management contract is far more than words on paper. It is also all the oral understandings, interpretations and mutually acceptable habits of the parties which have grown up around it over the course of time. Stable and peaceful relations between the parties depend upon the development of a mutually satisfactory superstructure of understanding which gives operating significance and practicality to the purely legal wording of the written contract. Peaceful relations depend, further, upon both parties faithfully living up to their mutual commitments as embodied not only in the actual contract itself, but also in the modes of action which have become an integral part of it.”[4]

Arbitrators have long used the custom and practice of the applicable industry to shed light upon the intended meaning of an ambiguous contract provision.[5] In this case, the ambiguous language is found in Article 23.1, where both parties agree to do “all that is reasonable to maintain a safe and healthy working environment”. We know all too well that what is reasonable to one may be insufficient or excessive to another. Therefore, we turn to past practice to determine whether ‘reasonable’ efforts have been made.

Where practice has established a meaning for language contained in past contracts and continued by the parties in a new agreement, the language will be presumed to have the meaning given it by that practice.[6] As one arbitrator stated:

There would have to be very strong and compelling reasons for an arbitrator to change the practice by which one contract provision has been interpreted in a plant over a period of several years and several contracts. There would have to be a clear and unambiguous direction in the language used to effect such a change…[7]

While the Union has addressed some valid concerns about the functioning of BEST, the CBA language is clear when it comes to the place of past practice in the instant case:

28.4 Laws, government wide regulations and this Agreement take precedence over past practices. Existing and future working conditions, which are not inconsistent with this Agreement or law and are established though past practice, will be treated for all purposes as if they are incorporated into this Agreement and may only be modified or terminated through the exercise of the collective bargaining process.

Even if it has not been ideal, the fact remains that BEST has functioned in a given manner for several years. Both parties have been aware of its practice and of their commitment to ensure ‘reasonable’ efforts for the safety and health of Bonneville Dam workers. Because the past practice of the BEST committee has not been “inconsistent” with the CBA or the laws governing safety committees, it is incorporated into the CBA by operation of Article 28.4. While the Union makes several valid arguments (arguments that I agree with), the unique language of Article 28 limits my authority to impose my view of what good management practice should be. While the outcome of this case might have been quite different if the Union had demanded to bargain the BEST Charter, the current process “may only be modified or terminated through the exercise of the collective bargaining process.”

The burden is on the Union to establish by a preponderance of the evidence that the Agency violated the parties’ Collective Bargaining Agreement, OSHA CFR 1960, NWPR 385-1-1, and the BEST Charter. While it has argued correctly for the importance of workplace safety, the Union has not established that the Agency violated the texts in question due to the operation of the parties “past-practice” clause in their CBA.

The grievance is denied. As provided for in Article 6.12 of the Collective Bargaining Agreement, “the Arbitrator's bill will be borne equally by both parties.”

[1] "charter." The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004.

[2] Elkouri and Elkouri, How Arbitration Works, Pages 490-91 (5th ed. 1997).

[3] Phelps Dodge Copper Prods. Corp., 16 LA 229, 233 (1951).

[4] Union brief at 5.

[5] See; 76 LA 968, & 68 LA 953

[6] See Arbitrator Murphy in 78 LA 819, 822; Richman in 77 LA 1045, 1048; Lipson in 77 LA 203, 206-207; Mueller in 76 LA 1236, 1240; Johannes in 75 LA 106,109; Allen in 74 LA 13, 15; Kapsch in 72 LA 1104, 1106; Moran in 72 LA 364, 366; Mallon in 71 LA 699, 701; Megley in 70 LA 925, 928.

[7] Webster Tobacco Co., 5 LA 164, 166 (Branschain, 1946).