28 day free trial

 

 

  

LawMemo - First in Employment Law

Home MyLawMemo About Us   Arbitration Articles

Search arbitrators | National Arbitration Center | Search awards 

 

Title: Simkins Industries and United Steelworkers of America
Date:
March, 26, 2007
Arbitrator: N. Eugene Brundige
Citation: 2007 NAC 109

OPINION AND AWARD

In the Matter of Arbitration

Between 

Simkins Industries, Inc., Employer
Deerfield Specialty Papers

And

 United Steelworkers of America
PACE International Local 3-0816

Regarding

FMCS Case No. 05-02924-3

Date of Hearing – November 30, 2006
Date of Receipt of Briefs – February 15, 2007
Date of Award – March, 26, 2007  

 

APPEARANCES:  
FOR THE COMPANY:  
Irvin Coughlin, Vice President, H.R.
Diane Lavorgna, Corp. Manager of H.R.  
George J. Evans, Main. Supervisor 
FOR THE UNION:  
Richard Thomas, USW Staff    
Garnett Perry, Local Pres.  
Larry McGraw, Grievant  
Randy Kitchens,  Witness 

            An arbitration hearing was conducted on November 30, 2006, at Augusta, Georgia.

At the hearing the parties jointly submitted the collective bargaining agreement and the grievance as joint exhibits. The parties agreed that the issue to be decided could be stated as, “Did the company violate the agreement when they assigned “oiler” work to the maintenance classification?  If so, what shall the remedy be?”  

Both parties timely submitted post hearing briefs. They had originally agreed to file briefs by January 5, 2007, but due to illness, they extended that deadline until February 15, 2007. All materials were reviewed and considered by the Arbitrator in reaching this decision.

            The parties agreed that the matter was properly before the Arbitrator for determination.  The Arbitrator requested permission to submit the award for consideration for publication and permission was granted.

RELEVANT COLLECTIVE BARGAINING PROVISIONS:

ARTICLE VI

SENIORITY

(Page 11, 3 E)

E)  MAINTENANCE DEPARTMENT  
Maintenance “A” Boiler/Tender  
Maintenance “A”  
Maintenance “B”  
Maintenance “C”  
Maintenance Helper

                   (Page 12, 3 K)

K)  OILER DEPARTMENT  
Oiler “A”  
Oiler “B”
Oiler “C”

ARTICLE XI

OVERTIME AND PREMIUM PAY

11)    An employee working on one of his regularly scheduled days off will receive time and one-half for all hours worked on that day.

ARTICLE X

HOURS OF WORK

11)     The oiler will work under the direct supervision of the maintenance foreman.  The oiler will gain advancement and seniority in the oiler department only.

ARTICLE XXI

MISCELLANEOUS

9)     Oiling and Greasing.  In order to clarify the discussion regarding the oiling and greasing of mill equipment, the Company agrees to adhere to the practice in effect at the time this Agreement is executed.

BACKGROUND

            Deerfield Specialty Paper has utilized the position of Oiler for the past thirty-eight (38) years.  Originally the oiler position was a part of the maintenance department.

            Sometime during the 1995-1998 collective bargaining agreement an understanding was reached between the Company and the Union to place the oiler position in a separate department.

            Since that time it appears the grievant, who has held the sole position of oiler for the last thirty-eight (38) years, has worked six or seven days a week. 

            According to the Union, during the 2002 negotiations, Article 21.9 was added to the agreement.  This language reads, “Oiling and Greasing.  In order to clarify the discussion regarding the oiling and greasing of mill equipment, the Company agrees to adhere to the practice in effect at the time this Agreement is executed.”[1]

            On November 10, 2004, Maintenance Supervisor Gary Plyer notified employees that in an attempt to reduce overtime, the employees would follow a new schedule which would divide maintenance into two separate crews and would assign Grievant McGraw to Crew No. 2. 

            This new schedule led to Mr. McGraw working only five (5) days a week and he began to file grievances for any period of time in which work he would normally do was performed by other employees.

            The Union submitted a total of forty (40) grievances covering the same topic and Management objected to consideration of any beyond the one listed in the submission agreement. [2]

POSITION OF THE UNION

            The Union believes the language of Article XXI Section 9 is controlling.  It believes that the practice in effect when the negotiation of the 2002 contract took place was that Mr. McGraw worked six or seven days per week.

            The Union submitted Exhibit 41 which lists the money that it believes the grievant has lost as a result of the entire forty (40) grievances. 

            The Union contends Mr. McGraw’s assignment to Crew 2 was improper because his overtime would now be based upon the seniority within the Maintenance Department.  It notes that Mr. McGraw has no seniority within Maintenance since he occupies a separate department of one.

            The Union notes that one of the duties previously performed by Mr. McGraw was the filling of LP Gas bottles.  During the period of time these grievances were being filed, the Company contracted out the filling of LP Gas bottles.  That action has not been challenged by the grievant or the Union.

            The Union asks the Arbitrator to, “order the Company to cease and desist wrongfully assigning work of the “Oiler” department and make Mr. McGraw whole for lost wages and benefits.”

POSITION OF THE COMPANY

            The Company is in agreement regarding the basic facts in this case.  The disagreement lies with the interpretation of the language.

            The Company reminds the Arbitrator that only one case is pending in this Arbitration.  Consequently the Company notes that Union Exhibit 41 regarding the calculation of money owed to Mr. McGraw is not relevant since it deals with forty (40) grievances instead of one.

            The Company argues that Article XXI Section 9 is too vague and ambiguous to be given any weight.  It also notes that while the Union contends the language was added to the 2002 agreement, it has actually been in the collective bargaining agreements since 1986.

            Should the Arbitrator find merit in the Union’s case, the Company notes that any remedy must only apply to work actually performed by others that would normally be a part of the duties performed by the Oiler.

            The Company asks the Arbitrator to deny the grievance.

DISCUSSION AND OPINION

            A careful review of the Collective Bargaining Agreement and the facts in this grievance leads this Arbitrator to conclude several things;

1.  The assignment of Mr. McGraw to a maintenance crew for the purpose of determining his overtime is improper. The Agreement is very clear that Mr. McGraw is in a department by himself and the only person to be considered for overtime assignments is the grievant.

2.  As the parties have attempted to deal with this situation in the past, they agreed at some time to give credence to the “practice” in effect at that time.  Mr. McGraw testified, with considerable coaching, that he worked six or seven days per week and that was what he believes the “practice” language refers to.

3.  The Company has a right to schedule employees and to try to limit overtime payment for the good of the Company and all employees.

4.  Work that is usually done by the Oiler belongs to that position since there is only one incumbent.  Except on a very “de minimis” basis, any Oiler work should involve calling in the grievant or delaying the work until his is on duty.

            The problematic part of this case is the “practice” language in Article XXI Section 9.

            The Company would have me disregard it because it is too ambiguous to consider.  I cannot do that.  Words in a collective bargaining agreement have been placed there for a purpose and cannot simply be ignored because they are inconvenient.  How Arbitration Works, 6th Edition, quotes Arbitrator Updergraff in a 1947 case on this same point:

“It is axiomatic in contract construction that an interpretation that 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.[3]

            The more relevant question is how to interpret Section 9 of Article XXI, and how that language interacts with the rights of the Company that are not restricted by the terms of this agreement.

            From the record I can conclude that prior to the assignment to Maintenance Team 2, the grievant worked a schedule that was usually in excess of the normal five (5) day week and that part of his duties on the additional two (2) days was the filling of propane tanks.

            Now that the Company has contracted out the filling of propane tanks[4] the nature of “oiler” work has changed somewhat.  It also appears that when the grievant was called in to perform “oiler” duties he often worked a full shift or additional hours doing other non ‘oiler” duties.

            While I am sympathetic that these additional hours were the practice at least on some occasions, without specific data and information on the duties actually performed and without a job description clarifying exactly what constitute “oiler” duties, I hesitate to order the grievant or any employee to be scheduled seven (7) days per week.

            I lack evidence to do that because the record indicates that on some occasions the “oiler” duties were the filling of L P tanks, and that work no longer exists.

            While I am limited to rule only on the grievance before me, I do have in evidence forty (40) additional grievances that were entered without objection. 

Due to my awareness that at least some of those grievances may be governed by the doctrine “stare devises,”  I have attempted to frame this award in a way that may aid the parties in the resolution of the other grievances should they be advanced.

Stare Decisis is explained in an award by Arbitrator David Gaba:

Where a new incident gives rise to the same issue that is covered by a prior award, the new incident may be taken to arbitration but it may be controlled by the prior award. The destiny of a party's claim thus may be governed by a prior award that either precludes the claim under res judicata concepts or controls the decision on the claim by stare decisis concepts. In some instances arbitrators likewise have made the prior award the governing factor by application of a third judicial concept, collateral estoppel, which stands somewhere between the concepts of res judicata and previous hitstare decisis next hit (collateral estoppel also overlaps somewhat with res judicata and, in a sense, with the authoritative precedent area of previous hitstare decisis next hit). However, regardless of whether the arbitrator speaks in terms of res judicata, collateral estoppel, or previous hitstare decisis next hit, ordinarily the prior award by some procedure will have been the governing factor in the disposition of the present claim. [5]

            In the instant grievance I find the Company violated the Collective Bargaining Agreement, Article XXI Section 9 when it assigned the grievant to one of the two maintenance teams.

AWARD AND REMEDY

            The Grievance is granted in part.  The grievant shall be compensated for the amount of “oiler” duties performed on the date of the grievance at the appropriate rate.  The Arbitrator shall retain jurisdiction for ninety (90) days from the date of this award to resolve any differences that might arise regarding the computation of the amount due.

            When the need for “oiler” duties arises on a day outside the greivant’s regularly scheduled work week, he shall have the right of refusal to perform those duties.

Issued at London, Ohio this 26th day of March, 2007

_________________________ 
N. Eugene Brundige, Arbitrator


[1] In the Company’s Post Hearing Brief it contends the language of Article XXI, Section 9 has been in collective bargaining agreements since 1986.  The Arbitrator lacks the necessary evidence to resolve this difference.

[2] The Arbitrator noted that he had authority to decide only the grievance that was submitted.  Hopefully this award will provide guidance to the parties regarding the other 39 but the award is limited to grievance number 1-24-05.

[3] John Deere Tractor Co., 5LA 631 as cited in HOW ARBITRATION WORKS, Elkouri & Elkouri, 6th Edition

[4] An action not challenged by the grievant or the Union.

[5] 119LA 481 In re SEATTLE SCHOOL DISTRICT NO. 1 and SEATTLE EDUCATION ASSOCIATION CERTIFICATED NON-SUPERVISORY EMPLOYEES

Home | MyLawMemo | Custom Alerts | Newest Cases | Key Word Search  
Employment Law Memo | EEOC Info | NLRB Info | Arbitration | Articles | Law Firms | Site Map 

 

Get your 28 day trial now 

 
LawMemo, Inc.
Post Office Box 8173 Portland, OR 97207
Phone: 877 399-8028