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Title: Time Warner Entertainment Company and International Brotherhood of Electrical Workers
Date: January 9, 2006
Arbitrator: 
N. Eugene Brundige
Citation: 2006 NAC 136

OPINION AND AWARD

In the matter of Arbitration

Between

International Brotherhood of Electrical Workers
Local Union 2303

And

Time Warner Entertainment Company

Regarding

FMCS Case No. 06070-57662-8

Date of Hearing – November 1, 2006
Date of Receipt of Briefs – December 14, 2006
Date of Award – January 9, 2006

 

APPEARANCES:
FOR THE COMPANY: 
Kevin Smith, V.P. & Chief Counsel –Labor 
Ava Chirombolo, Sr. Director of HR, NEO

FOR THE UNION:
Timothy A. Piatt, Attorney for the Union
William Gore, Attorney for the Union
Luke A. Jones, Union President
R. Managan, Union Vice President

            An arbitration hearing was conducted November 1, 2006 at Cuyahoga Falls, Ohio.  The Union was represented by Timothy Piatt and the Company by Kevin Smith.

At the hearing the parties submitted the collective bargaining agreement and the grievance trail as joint exhibits. In addition the parties jointly submitted excerpts from five previous collective bargaining agreements.

In addition to the joint exhibits and verbal testimony, the Union submitted a copy of section 4510.036 and 037 of the Ohio Revised Code and a copy of the policy/work rule giving rise to the instant grievance.  The company submitted copies of previous policy statements and memoranda issued by the company in previous years.  Both parties timely submitted post hearing briefs.  All materials were reviewed and considered by the Arbitrator in reaching this decision.

In that the facts in this matter are essentially undisputed, the parties did not request witnesses be sequestered, but were sworn and testified under oath.

            Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.  Both sides did so professionally and competently.

            The Company raised a procedural objection stating that the matter was not “ripe” for arbitration in that no employee has been disciplined under the newly adopted motor vehicle rules in dispute.  The Arbitrator deferred ruling on the objection indicating that he would address the issue in the written award as a threshold issue.

            The parties agreed that the matter was properly before the Arbitrator for determination including the threshold question regarding the ripeness of the grievance.  The parties agreed that the Arbitrator could submit the award for consideration for publication unless either party notifies him of their objection to publication within thirty (30) days of the issuance of the award.

At the hearing the arbitrator fashioned a statement of the issue which was agreed to by both parties: “Did the Employer violate the Agreement when Employer implemented the MVR Rules, and, if so, what shall the remedy be?”

RELEVANT COLLECTIVE BARGAINING PROVISIONS:

Section 1.02 CHANGE BY MUTUAL CONSENT

This Agreement shall be subject to change or supplement at any time by mutual consent of the parties hereto.  Any change or supplement agreed to shall be reduced to writing, signed by the parties hereto, and submitted by the Local Union to the to the International Office of the IBEW, for approval the same as this Agreement.

Section 8.04 OPERATORS PERMIT

(a) Employees whose job duties require the operation of an Employer vehicle, or their own vehicle on Employer business, must possess a valid operators permit as a condition of continued employment.

(b) An employee whose operators permit is suspended or revoked, and who is not permitted by the state to drive at work, will not be permitted to operate an Employer vehicle, or his own vehicle for Employer business. The employee shall be suspended or terminated if a valid operator's permit cannot be produced within a reasonable time.

(c) If an employee's operators permit is suspended or revoked, the employee must inform the Employer of that fact prior to operating a vehicle on Employer business or be terminated for his/her failure to do so.

Section 8.06 MANAGEMENT RIGHTS

(a) It is agreed that the management of the Employer and the direction of the working forces is vested exclusively in the Employer and all functions, rights, powers and authorities not specifically abridged, delegated or modified by this Agreement are reserved for the Employer, including but not limited to the right to hire, assign work, suspend for just cause, layoff, discharge, transfer, maintain order and efficiency in the operation of its business, provide training systems and programs, make such reasonable rules and regulations for the purpose of maintaining order, safety and/or effective operation of its business; and all other functions [generally recognized as customarily the responsibility of management unless such functions] and responsibilities are contrary to the express provisions of this Agreement; provided that such rights will not be used for the purposes of discrimination whether for Union activities or for any other reason. Copies of Rules and Regulations formulated for the purpose of maintaining order, safety, and/or effective operation of the business shall be furnished to the Union and all employees as they become effective.

(b) The parties hereto recognize and agree that the Employer has the right to set forth reasonable rules and regulations regarding the conduct and operation of the business, including, but not limited to, the Employer's Attendance Policy.

BACKGROUND:

            The parties have been governed by collective bargaining agreements since at least 1980.  Currently they are governed by an agreement that commenced November 11, 2000 and continues through November 10, 2025.

            On or about April 6, 2006 the Employer issued a policy/work rule referred to as: “motor vehicle records rules. (MVR Rules)”

            These rules were issued company wide and the Union grieved their issuance on April 11, 2006.  The Union stated the basis of their grievance as being:

“On or about April 6, 2006, the Company notified the Union that it intends to modify its work rules by unilaterally implementing a point system which is different from the prior rule affecting operator’s permits, which the Company has not enforced.  Said proposed rule is unreasonable and more restrictive than the prior rule and as such, violates Sections 1.02, 1.06, 8.04 and 8.06 of the collective bargaining agreement”.

            The Company denied the grievance.  On May 15, 2006 the Company issued the

following response:

“Management has the right to set forth or modify reasonable rules for the purpose of maintaining order, safety or effective and efficient operation of the business.  This modification is consistent with the terms of the agreement.  However, after some discussion, the Company has agreed not to consider any point accumulation prior to the modification change of May 1, 2006.  Grievance is denied.”

            Further efforts to resolve the matter were unsuccessful and the Union informed the Company by letter dated May 25, 2006 that the case would be advanced to arbitration.

POSITION OF THE UNION:

            The Union, in its post hearing brief, argues that collective bargaining agreements between the parties since 1980 have been consistent in including three provision germane to this case. 

Unit member employees who operate a motor vehicle must maintain a valid operator’s permit. (Current CBA Section 8.04).

The Employer has the right to make and impose work safety rules and regulations unless they are contrary of the express provisions of the Agreement. (Current CBA Section 8.06).

Any alteration to an agreement can only be made by mutual written consent (Current CBA Section 1.02).

The Union argues that neither the current Collective Bargaining Agreement non any previous one has ever referred to a ”point system” regarding  the bargaining unit members ability to operate a vehicle for the Employer.

The Union refers to the language of Section 8.04 when it states: ‘An employee whose operators permit is suspended or revoked, and who is not permitted by the state to drive at work, will not be permitted to operate a Company vehicle, or his own vehicle for Company business.”

The Union concludes that the parties have “expressly and unambiguously provided that the state law controls over suspension or revocation of operator permits.”[1]

The Union compares the new MVR Rules to current Ohio Law and notes significant differences between the two.

IBEW goes on to answer the argument made by the Company at hearing by its introduction of documentation that since 1997 the Company has had point system policies in place that differ from Ohio State Laws and the fact the Union did not grieve the implementation of such policies.  The Union notes that the policies issued in 1997 and 1998 state that they did not apply to bargaining unit members. 

The Union also notes that even though the Company had stated in the policies issued in 1999, 2000 and 2001 purported to apply to bargaining unit members, they all lacked any written consent from the Union.

Again, the Employer’s point system rules issued in 2002, 2004 and 2006 expressly did not apply to bargaining unit members.

The Union notes that the collective bargaining agreement has never been modified to allow application of such a rule.

The Union goes on to argue that the subject matter of the grievance is “ripe” for arbitral consideration in response to the objection raised by the Employer at hearing.[2]

The Union submits the following as facts:

The Agreement does not contain a point system.

No collective bargaining agreement since 1980 contained a point system.

While the Agreement, and all agreements since at least 1994 expressly refer to state law, the MVR Rules expressly provide that the point system contains therein is not a state point system and is, instead a Time Warner Cable Point System.

The MVR Rules are included in Employer’s 2006 “Overview which provides that the rules contained therein are not applicable to Union employees.

The Union did not give the requisite consent to Employer’s implementation of the

MVR Rules.

The Union’s position throughout this dispute has been that the MVR Rules are contrary to and inconsistent with the terms of the Agreement and state law.

The Union has timely confronted Employer about its recent unilateral conduct and has timely grieved such conduct, and

In its reply to the grievance, Employer acknowledged being restricted in its exercise of management rights and that the MVR Rules are a “modification” of the Agreement.[3]

The Union requests the grievance be granted and that the following remedy be awarded:

that Employer immediately cease and desist from applying MVR Rules to the Union member employees; that Employer rescind imposition of the MVR Rules on Union member employees, with such rescission retroactive to the dates of imposition, and that Employer rescind any action pursuant to the MVR Rules against any Union member employee;

that Employer follow state laws, including that of Ohio, in dealing with suspension and revocation of operators permits;

that Employer obtain written consent from the Union prior to imposing any suspension/revocation rules or policies which are contrary to state laws; and

that the Arbitrator retain jurisdiction over the matter in order to resolve any dispute over the remedy awarded.

POSITION OF THE COMPANY:

            The Employer denies any violation of the Agreement contending that the Management Rights clause in section 8.06 of the Collective Bargaining Agreement give it the right to implement rules regarding safety and efficient operation of the business. 

            In the view of the Employer this includes the right to make rules regarding motor vehicle safety.

            Management does not believe that Section 8.04 abridges these management rights and therefore there is no reason for the MVR Rules to be subject to Section 1.02.

            The Employer notes that the record of the hearing is based upon the testimony of Ava Chirumbolo, Senior Director of Human Resources for the Northeast Ohio Division of Time Warner.

            Ms. Chirumbolo testified that she informed Union officials of the proposed new policy/rules in February or March of 2006.  She explained that the action was in response to a memorandum issued by the corporate risk management department regarding a new Company-wide policy governing the operation of motor vehicles.

            Her testimony indicated that the new policy took effect May 1, 2006 and the Company determined that any driving infractions before May 1, 2006 would not be counted toward any discipline or other action under the new policy.

            It is the view of the Company that while the Employer provided notification to the Union of the new policy, it had no need to seek the Union’s consent to implement the rules.

            Ms. Chirumbolo explained in her testimony the content of the MVR Rules.  She went on to discuss previous Employer policies dating back to 1997.

            The Employer notes that the argument advanced by the Union that the point system of the new policy is irrelevant because, in the Employer’s mind, the right to make the rule existed under either policy.

            The Employer also argues that the language of 8.04 and the past conduct of the parties demonstrates that the provision was not intended to abridge the Employer’s discretion in rule making.

            The Company goes on to argue that the rule is reasonable and for the purpose of maintaining order, safety and the efficient operation of the business.  It notes that it is not unreasonable for the Employer to set a rule than is more stringent than the rules established by the state.  The Employer has a vested right to be concerned about the liability exposure the Company bears when employees operate Company vehicles.

            The Employer urges the Arbitrator to consider the principles of contract interpretation and points to the principle of giving effect to all clauses and words.

            The Employers view of the plain language of section 8.04 is gleaned from its post hearing brief (page 12) which states: “The plain meaning of section 8.04 is that an employee required to drive a vehicle in connection the employee’s performance of their duties must have a valid license in order to remain employed by the Employer.  If an employee’s license is suspended or revoked the employee may not operate a Company vehicle and if the employee cannot produce a valid license within a reasonable period of time, the employee shall be suspended or terminated. This language was clearly intended as a minimal standard for those required to drive….”

            The Employer believes that the new police (MVR Rules) does not violate section 8.04 of the agreement and asks the Arbitrator to deny the grievance.

DISCUSSION:

            Because the Employer has withdrawn it’s objection to arbitrability based on the “ripeness” of the issue I will proceed to the merits of the matter.

            The parties are correct in noting that is little if any disagreement regarding the facts in this matter.  The Risk Management Division of the Company promulgated a new set of rules to govern those persons who drive vehicles, either Company owned or private, as a part of their employment with Time Warner.

            Nothing in the record would indicate that the rules are unreasonable or for less than a good business reason.

            Clearly the Company has the right to “make such reasonable rules and regulations for the purpose of maintaining order, safety and/or effective operation of its business; and all other functions [generally recognized as customarily the responsibility of management unless such functions] and responsibilities are contrary to the express provisions of this Agreement;” (excerpt from Section 8.06)

            The parties each state that the language is clear and unambiguous but their view of clarity is filtered through the lenses of their perspective regarding what is the correct reading of the Collective Bargaining Agreement.

            This Arbitrator does not see the same degree of clarity.  The language of Section 8.06 is unique.  Contracts generally have a reference to rule making that indicates management can make reasonable rules and regulations so some as “they” are not contrary to the express language of the Agreement.  In such a clause the “they” refers directly back to the “rules and regulations.” 

            In 8.06 the reference is to the “functions and responsibilities.” 

            One could read 8.06 to say that if the function or responsibility of management is not contrary with the agreement, then management would be nearly unfettered in its rule making ability.

            This reading would, in the view of this Arbitrator, lead to a nonsensical result.  A specific provision of the Agreement could be negated by rule making.

            To determine the meaning of this clause I turn to a principle of contract interpretation which requires considering the contract as a whole. Arbitrator Robert Dunham stated in a Milton Roy Company Case:

“The Arbitrator must view the whole of an Agreement to give proper interpretation and meaning to a particular section or provision of the Agreement. This is necessary since a single phrase, sentence or paragraph in an Agreement taken out of context (that necessary language which goes along with it) may logically abort the intent of the parties.” [4]

            A reasonable interpretation, and the one I accept, is that the language of Section 8.06, while unique in nature, intended to state the well accepted axiom of labor relations that Management is entitled to make reasonable rules and regulation so long as those rules and regulations do not conflict with a provision of the Collective Bargaining Agreement.

            The question then becomes whether the language of the newly promulgated MVR Rules conflict with the language of Section 8.04.

            Management would have me believe that 8.04 establishes some type of floor or minimum standard for employees to meet and the Company is then permitted to expand that standard through the rule making process.

            This Arbitrator holds to the view of many who believes that when an issue is addressed in the Collective Bargaining Agreement then that is all the parties intended to say on the subject.  The doctrine of expression unius est exclusion alterius (the expression of one condition precludes the others) can be applied here.

            Arbitrator Andrews stated the essence of this doctrine in 1974 when he said:

It is now a well established generalization that employers, except to the extent limited by contract or statute, retain all power to manage a plant, make rules, and set working hours. This is so even if the agreement does not list all of the rights that have been retained by management or has no management rights clause at all. The collective bargaining agreement operates as a limitation upon the right of the employer to establish working conditions only to the extent that such conditions of employment are covered by the agreement. The pre-existing rights of the employer still continue as to all matters not covered in the agreement. If the agreement is completely silent about a matter, then the employer is free to make unilateral changes if such changes are not inconsistent with the provisions of the current agreement…. .[5] (emphasis added.)

            Arbitrator DeFalco, in a recent case between Swift Company and the International Union of Operating Engineers, faced an issue where certain schedules were included in the Agreement and the Company, through unilateral action, added other schedules.  In that case he stated:

“I conclude that the Union's argument that the contract interpretation principle of previous hitexpressio unius est exclusio alterius next hit is sound and applicable to this matter. The parties have listed work schedules in Article 6, Section 2, with specificity. It is logical to conclude that they intended, by listing specific schedules, to exclude all other schedules, absent negotiations to change the language of the Agreement. The schedule the Company unilaterally adopted which gave rise to this grievance was never included by inference or in any other manner as one of the schedules the parties had negotiated in their Agreement.”

            The Contention of the Company that the Management Rights Clause (Section 8.06) gives them authority to go beyond the restrictions placed on bargaining unit members by Section 8.04 of the Agreement also falls short in the mind of this Arbitrator.

            Section 8.04 specifically states that a person may not drive on company business without a valid driver’s permit (license).  It goes on to provide specific justification for suspension or termination that goes beyond the general principles of just cause.

            Thus, the more general right to make safety rules (Section 8.06) cannot “trump” the more specific language of Section 8.04.

            The principle of exact terms are given greater weight than general language is helpful in deciding this case.

            In explaining this principle of contract interpretation, Elkouri and Elkouri, 6th Edition provides an on point example:

“For example, where a contract contained a general provision stating that the company should ‘continue to make reasonable provisions for the safety and health of its employees’, and another provision stating that ‘wearing apparel and other equipment necessary properly to protect employees from injury shall be provided by the Company in accordance with practices now prevailing…or as such practices may be improved from time to time by the Company,’ it was held that the employer was not obligated to furnish rain clothes to employees because such apparel had not be furnished or required in the past.  The arbitrator noted that had the general clause stood alone, he would have been required to determine whether the furnishing of rain clothes was reasonably necessary for the safety and health of the employees.” [6]

The fact the parties bargained an agreement regarding the operation of motor vehicles that referenced the state law in Ohio, leads this Arbitrator to conclude that this is all the parties intended to say on the subject.

Apparently the Employer concluded in the past that the general rules regarding motor vehicles did not apply to bargaining unit members.  This was evidenced by the Company Policy Updates (Employment Overviews) issued in 2002, 2004 and 2006.

The fact that other issues of the Policy updates did not include the same statement regarding bargaining unit employees, does not appear to be germane to this Arbitrator.  The rules implemented May 1, 2006 clearly do apply to bargaining unit members and they were properly grieved by the Union.

Failure to act on previous policy statements does not estop the Union from challenging the current rules (MVR Rules) in a timely fashion.  I agree with Arbitrator Bittel when she wrote “The fact that a party failed to file grievances or protest past contract violations does not serve to bar that party from later insisting on compliance. [7]

The Employer does not have the right to unilaterally impose more restrictive rules without the consent of the Union.

AWARD

            For the reasons herein stated, the grievance is granted.  The Company shall rescind the MVR Rules as they relate to employees in this bargaining unit and any action taken pursuant to those Rules against bargaining unit members.

            As requested by the Union, the Arbitrator will retain jurisdiction for a period of ninety (90) days should any disputes arise in the implementation of the remedy.

Issued at London, Ohio this 9th day of January , 2006

_____________________________
N. Eugene Brundige, Arbitrator


[1] Union’s Post Hearing Brief page 8.

[2] Even though the Employer raised the “ripeness” objection at hearing, in its post hearing brief, the Employer withdrew their objection and consented to the determination of the grievance on its merits (Employers Post Hearing Brief, page 10 footnote)

[3] Union’s Post Hearing Brief, pages 12 & 13.

[4] 77 LA 377

[5] 63 LA 1 (Andrews, 1974),

[6] How Arbitration Works, Elkouri & Elkouri, 6th Edition, ABA & BNA, 2003, page 479.

[7] 9LA8, Warner Cable of Akron, Bittel, 1998.

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