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Title: United Local Seven Staff Union and United Food and Commercial Workers Local 7
Date: 
March 3, 2008
Arbitrator: Michael Anthony Marr
Citation: 2008 NAC 103

 

BEFORE IMPARTIAL ARBITRATOR MICHAEL ANTHONY MARR

STATE OF COLORADO

In the Matter of the Arbitration Between

UNITED FOOD AND COMMERCIAL WORKERS LOCAL 7

                                    Union,

            and

UNITED LOCAL SEVEN STAFF UNION,       

                                    Employer.

_______________________________________________________________  

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FEDERAL MEDIATON AND CONCILIATION SERVICE NUMBER 07-58217

DECISION AND AWARD;
CERTIFICATE OF SERVICE

HEARING DATE: February 11, 2008.

Grievance of Lori Mueller

 

                                                   

MICHAEL ANTHONY MARR
A
ttorney, Arbitrator, & Mediator
111 North King Street
Suite # 314
Honolulu, Hawaii 96817
Telephone: (808) 599-5258
Facsimile:   (808) 599-1545
E-mail: MmarrADR@aol.com

 

                                               

DECISION AND AWARD

            The above-referenced matter came on for hearing before the impartial arbitrator on February 11, 2008 in Denver, Colorado. The arbitrator was mutually selected by the parties using the rules and procedures of the Federal Mediation and Conciliation Service to render a final and binding arbitration award concerning the above-referenced grievance. Both parties were represented by professional and competent counsel at the arbitration hearing. The United Local Seven Staff Union, hereinafter sometimes referred to as “Union” or “ULSSU” and Lori Mueller, hereinafter sometimes referred to as the “Grievant,” were represented by Duane Montaño, Esq. The United Food and Commercial Workers Local 7, hereinafter sometimes referred to as “Local 7” or “Employer” was represented by John Bowen, Esq.  During the arbitration hearing ten (10) joint exhibits were received into evidence from the parties. Joint Exhibit 1 (one) was the current Collective Bargaining Agreement between the parties, hereinafter sometimes referred to as “the current CBA” or the “collective bargaining agreement.” The arbitrator also received six (6) Employer exhibits into evidence. The Employer called three (3) witnesses for its case-in-chief and two (2) rebuttal witnesses. The Union called one (1) witness, specifically, the Grievant. Full opportunity was given to the parties to present evidence, examine and cross-examine witnesses and to present oral argument. Since the CBA was silent as to when closing briefs would be due after the arbitration hearing, the parties agreed that their post-hearing briefs would be deposited in the United States mail by February 19, 2008. The CBA was silent as to when the arbitration decision and award are due. In light of the CBA’s silence on this matter, the arbitrator informed the parties that he would follow his general rule and submit his award and decision on or before 30 calendar days after his receipt of the closing briefs of the parties, specifically, March 25, 2008.

            The arbitrator has reviewed the testimony and evidence presented during the arbitration hearing as well as reviewed the well-written and convincing briefs submitted by counsel. The arbitrator does not feel compelled to address all of the numerous arguments and issues raised by these professional advocates. Please note that this is not to be interpreted that the arbitrator has not read and reread the briefs and numerous pages of exhibits and carefully considered all arguments of counsel. Rather, the arbitrator elects to address only those elements that have a significant impact on his decision-making process. The arbitrator, as a general rule will not comment on matters that he believes are irrelevant, superfluous, redundant, or rendered moot by the arbitrator’s decision.              

            The parties stipulated that the arbitrator has jurisdiction to hear the grievance of Lori Mueller. The parties also stipulated that all prior steps concerning the grievance process had been met or waived.    

I.  RELEVANT ISSUES.

The parties agreed that the following three issues would be answered by the arbitrator.

1.      Is the grievance arbitrable?

2.      If the grievance is arbitrable, did Local 7 violate the Collective Bargaining Agreement when it terminated the Grievant?

3.      If the grievance is arbitrable and the answer to question 2 is yes, what is the appropriate remedy?

II. POSITION OF LOCAL 7.

Local 7’s position is that the grievance before the arbitrator is not arbitrable.

The basis for this argument is that Grievant was a temporary employee. As a temporary employee she was subject to an initial maximum employment period of six months which could be extended for an additional six months. After being employed as a temporary employee for one year, she would thereafter be entitled to status as a permanent employee subject to a probationary period of up to three months. Since Ms. Mueller was a temporary employee, she had no rights under the collective bargaining agreement. Probationary employees also have no recourse to the grievance process. There is therefore nothing to arbitrate.

III. POSITION OF ULSSU.

The ULSSU has taken the position that the Grievant was hired as a permanent

employee who has passed her probationary period. The Grievant is not, as asserted by Local 7, a temporary employee nor is she a probationary employee. This being the case, the Grievant has rights under the current CBA and Local 7 did not have just cause to terminate the Grievant. The Grievant is entitled to reinstatement.

IV. RELEVANT CONTRACT PROVISIONS.

ARTICLE 1

            Section 1.  Local 7 recognizes ULSSU as the sole and exclusive collective bargaining agent for all permanent part-time and full-time Local 7 employees actively engaged in organizing, servicing membership, building maintenance, grievance handling, public relations, accountants, programmers, legal department, and secretarial duties including department heads, but excluding the President, Secretary-Treasurer, Supervisors as defined by the Act, temporary employees (e.g.s, Deputy Secretaries, SPUR’s, Membership Records clerks represented by OPEIU Local 5, Officers and other employees represented by ULSSU in other bargaining units. For the purposes of this Agreement, Supervisors will mean Executive Staff and General Counsel.

            Section 2.  All work currently being performed by employees represented by ULSSU shall continue to be performed by bargaining unit employees exclusively, except as modified herein, and /or by Local 5’s collective bargaining agreement.

            Executive Secretaries shall perform all typing and copying of memos, letters, contracts, grievances, flyer/handbills and briefs.

            Notwithstanding the foregoing, it is understood that salaried employees may continue to make any necessary copies of documents as they have in the past and attorneys may type briefs as they have in the past. It will not be a violation for employees to enter a document into a computer and submit/transmit the same to an Executive Secretary to have formatted, printed copied and distributed. The Public Affairs/Political Director and Deputy Secretaries shall continue to perform duties as they have in the past.

            The President, Supervisors and Secretary-Treasurer may continue to perform any Bargaining Unit work without restriction. However, the Supervisors’ present duties will not be expanded in a manner which will result in a reduction of the work force.

            Local 7 will not reduce hours or eliminate jobs as a result of employees using new technology.

            The only officers who may continue to perform the bargaining unit work as they have in the past are ULSSU members who are officers and/or who were elected prior to the ratification. No other officers in the future may perform bargaining unit work, and therefore, cannot be employed by Local 7. This language shall only apply to Executive Board Vice Presidents (and Recording Secretary) who are on Local 7’s staff (See attached Appendix B).

            Section 3. It is understood that Local 7 may temporarily employ and/or utilize individuals not represented by ULSSU, including International Representatives or Organizers, Deputy Secretaries, and SPUR’s to work on special projects as long as such employment does not result in reduced hours or a reduction in force of the employees represented by ULSSU. Notwithstanding the foregoing, no individual may work on a temporary basis for more than six (6) months at a time, unless both parties agree to an extension of up to an additional six months.

            Section 4. Any new employees coming from a Local 7 meat bargaining unit shall automatically fall under ULSSU meat contract. Any current ULSSU Member that came from a Local 7 meat bargaining unit shall be allowed to transfer into the ULSSU meat contract within one (1) year from the date of ratification or date of hire, whichever is later.

            Section 5. During the life of this Agreement, the Executive Staff will not be expanded beyond seven (7) people.

ARTICLE 7

                                                PROBATIONARY EMPLOYEES

            Section 1. Probationary employees are employees who have not completed

thirty (30) days of employment with UFCW Local 7. Probationary employees may be terminated without recourse to the grievance procedure or appeal to the Local Union Executive Board of Membership.

            Section 2. The probationary period shall be thirty (30) days, but may be extended by ULSSU President or Secretary Treasurer for thirty (30) day periods up to ninety (90) days.

            Section 3. Each probationary employee shall be furnished with a membership application for ULSSU at the time of hiring. Local 7 agrees to advise ULSSU in writing immediately when an employee has completed his/her probationary period.

            Section 4. ULSSU agrees to post a seniority list November first (1st) of each year, to include the length of continuous service for seniority purposes as discussed in Article 5 of this Agreement.

            Section 5. Promoted employees shall be on probation for thirty (30) days and shall receive training. The employee shall receive written evaluations at least twice during said period. The evaluation will set forth areas of needed improvement and shall be set forth a plan for the same. Local 7 or the employee can decide the employee will return to his former classification.

ARTICLE 20

                                                DISCHARGE AND DISCRIMINATION

            Section 1. Local 7 hereby agrees not to discriminate against any employee or discharge him/her because of membership in the Union and/or for upholding Union principles; and further, no employee who falls within the bargaining unit shall be disciplined, demoted, or discharged without just cause.

            Section 2. No employee shall be transferred or assigned for arbitrary, capricious or discriminatory reasons.

            Section 3. Local 7 will not discriminate against an employee for any reason.           

V. BRIEF BACKGROUND.

Local 7 is a union that represents commercial food workers that work at various grocery retail outlets. Local 7’s employee classifications include, but are not limited to, associate general counsels, union representatives and organizers, union representative interpreters, senior accountants, part-time accountants, computer programmers, executive secretaries, bilingual executive secretaries and full-time maintenance staff. All of these employees are represented by ULSSU.

            Prior to 1992, the employees of Local 7 were not represented by a union. The uncontroverted evidence indicates that Ernest L. Duran, Jr., the President of Local 7, encouraged the employees of Local 7 to organize. As a result, ULSSU organized Local 7’s employees.

            The initial CBA between Local 7 and ULSSU was established for the period from December 13, 1992 through December 9, 1995. The initial CBA was bargained and negotiated with proposals, exchanges, and counter-proposals prior to being signed by both parties.

            The second collective bargaining agreement between Local 7 and ULSSU was established to cover the period from December 17, 1995 through February 7, 1999, sometimes hereinafter referred to as CBA2. (Employer Exhibit 2)[1]. Two transformations were negotiated into CBA2. The first concerned the deletion of the words “volunteer organizing committee.” The acronym SPUR’s[2] was inserted in its place. In addition, the maximum time period that an employee could be classified as a temporary worker was changed from an indefinite period to one year.

            The third collective bargaining agreement between Local 7 and ULSSU was established to cover the period from February 8, 1999 through February 4, 2001, hereinafter sometimes hereinafter referred to as CBA3. (Employer Exhibit 3). There were no material changes between CBA3 and CBA2.

            The fourth collective bargaining agreement between Local 7 and ULSSU was established to cover the period from February 5, 2001 through November 1, 2003, sometimes hereinafter referred to as CBA4. (Employer Exhibit 4). There were no material changes between CBA 4 and CBA2 and CBA3.

            The fifth collective bargaining agreement between Local 7 and ULSSU was established to cover the period from November 2, 2003 through November 1, 2006, sometimes hereinafter referred to as CBA5. (Employer Exhibit 5). There were no material changes between CBA5 and CBA2, CBA3, and CBA4.

            The sixth and current collective bargaining agreement between Local 7 and ULSSU was established to cover the period from November 2, 2006 through November 7, 2009. There were no material changes between the current CBA and CBA2, CBA3, CBA4, and CBA5. Each of the aforementioned collective bargaining agreements has an Article 1, Section 3 and the language contained therein is identical.

            On October 27, 2006, the Grievant, Lori Mueller began her employment with Local 7. (Joint Exhibit 3). She was classified as an Executive Secretary to the Secretary Treasurer and the Organizing Director of Local 7. Her job duties and responsibilities are set forth in Joint Exhibit 2. Joint Exhibit 2 provides as follows:

Executive Secretary for the Secretary Treasurer and the Organizing Director

• Perform various clerical and administrative tasks in support of the Secretary Treasurer and the Organizing Department

• Coordinate the Pre-retirement Seminars

• Collates and copies all Executive Board materials for each meeting and assembles in the notebooks.

• Fulfills the Executive Board’s mandates by ordering hardship and other checks/donations/ticket purchases, etc.

• Primary responsibility for all file maintenance in the Secretary-Treasurer’s office and Organizing Director’s office.

• Copies/distributes all outgoing memoranda, letters and various other documents in support of the Secretary-Treasurer and Organizing Department (flyers, newsletters, handbills, etc.).

• Makes airline/hotel reservations, including hotel accommodations and travel arrangements for various staff.

• Books meeting-sites (for negotiations/strike votes) and arranges for travel and sleeping accommodations, as necessary.

• Scholarship Program.

• Perform other functions as required.

• ABC Political Check-off Processing.

• Voter Registration Updates.

• Inventory in the Jacket Closet, including Bibles.

• Annual Tracking of Information for Stewards Conference (to include formatting and printing all material, set up room accommodations, registration, etc.)

• Track Membership Inquiries and Ensure Completion.

• All Political (correspondence/flyers, etc).

• Lifetime Jacket and Plaques.

• Death Benefits.

Back up to Other Executive Secretaries.

            On November 9, 2006, Mr. John R. Mathewson of Local 7 sent a memorandum to Mr. Tom Merry of ULSSU (Joint Exhibit 4), stating as follows:

This is to confirm my voice message left for you on Thursday, November 2, 2006 concerning the above-referenced two (2) employees. You had inquired as to the status of the two (2) new Executive Secretaries. Ms. Barton and Ms. Mueller were hired on a six (6) month temporary status. ULSSU will be notified if that period is to be extended by another six (6) months.

            Do not hesitate to contact me if you have any questions.

cc:        Ernest L. Duran, Jr.
             Stan Kania
             Directors

            On November 21, 2006, the parties executed an “AGREEMENT BETWEEN ULSSU AND LOCAL 7” that was signed by Paul Gruenberger (Joint Exhibit 5), an officer of ULSSU, and John R. Mathewson, Director of UFCW, Local 7. It provided as follows:

Cindy Barton and Lori Mueller’s hire date is October 27, 2006. ULSSU has filed a grievance concerning their temporary status. Without prejudice to either parties’ position concerning the grievance and on a non-precedent basis, ULSSU agrees to extend Ms. Barton and Ms. Mueller’s “temporary/probation” status through January 25, 2007.

            On March 1, 2007, Mr. Mathewson signed a document (Joint Exhibit 6) entitled “AGREEMENT BETWEEN ULSSU and UFCW LOCAL 7.” ULSSU refused to sign the document. The document provided as follows:

Lori Mueller’s hire date is October 27, 2006. ULSSU has filed a grievance concerning her temporary status. Without prejudice to either parties’ position concerning the grievance and on a non-precedent basis, ULSSU agrees to extend Ms. Mueller’s “temporary/probation” status from April 27, 2007 through October 27, 2007.

            On April 9, 2007, Mr. Ernest L. Duran, Jr., in a interoffice communication to Lori Mueller (Joint Exhibit 7) regarding her “Probationary Period” terminated the Grievant, effective April 20, 2007. She was employed by Local 7 a little less than 6 months prior to being terminated. Ms. Mueller’s termination letter provided as follows:

            To:       Lori Mueller

            From:   Ernest L. Duran, Jr.

            Re:       Probationary Period

            Date:   April 9, 2007

            You are hereby advised you have not successfully completed your probationary period. Your last day of work will be April 20, 2007.

            If you have any questions or concerns regarding the foregoing, please do not hesitate to contact me.

Cc:       Stan Kania
             Directors
             Crisanta Duran

            On August 17, 2007 (Joint Exhibit 8), General Counsel for Local 7, John P. Bowen, by letter dated August 17, 2007 sent a letter to Mr. Duane Montaño, Esq., counsel for ULSSU[3] and stated in relevant part as follows:

            Mr. Duane Montaño, Esq.

            1246 Delaware Street

            Denver, CO 80204

                        Re:       UFCW Local 7 and ULSSU
                                     Lori Mueller

            Dear Mr. Montaño:

            Mr. Gruenberger requested information from Local 7 regarding the above-referenced matter as reflected in the attached request. As the representative of ULSSU, I am responding to you with the requested information. By doing so, Local 7 is not waiving its position as to the arbitrability or the merits of this case:

1.                  Ms. Mueller received no written discipline.

2.                  Ms. Mueller received no written counseling.

3.                  No written or formal evaluations were given to Ms. Mueller.

4.                  The only record of training given to Ms. Mueller is attached hereto as Exhibit 1.

5.                  Local 7’s position is that as a temporary employee with an initial maximum employment period of six months that could be extended an additional six months, there are no rights under the collective bargaining agreement.

6.                  The copy of Ms. Mueller’s termination notice was previously provided to ULSSU. An additional copy is provided for your convenience.

If you have any further questions, please give me a call.

                                    Sincerely,

                                    John P. Bowen

                                    General Counsel

cc: L. Joseph Ferrara, NLRB Region 27   

VI. IS THE GRIEVANCE ARBITRABLE?

As noted above, Local 7 has maintained that the Grievant was hired as a temporary employee. As a temporary employee, she is subject to an initial six-month period of employment with a possible extension of six months. In addition, since Grievant is a temporary employee, she has no rights under the CBA. Also, as noted above, ULSSU argues that the Grievant is a permanent worker who has passed her probationary period and is therefore entitled to reinstatement.

Three witnesses testified on behalf of Local 7 concerning bargaining history, negotiations, and past practice. They are Directors Kevin Schneider and John R. Mathewson and President Robert L. Duran, Jr. 

VI.A.   TESTIMONY OF MR. KEVIN SCHNEIDER

Mr. Kevin Schneider has been employed by Local 7 for 21 ½ years. He currently holds the position of Director with Local 7. As a director, he has multiple tasks. He is the supervisor for 50% of the Union Representatives on staff, supervises secretaries, meets with the executive grievance committee to review the settlement of grievances with employers, and is responsible for many other matters.

Prior to becoming a Director, he was a union organizer for approximately six (6) years and a union representative for approximately ten (10) years. The Union that represented him for approximately sixteen (16) years was ULSSU. He has held the position of director for the past six (6) years. In his capacity as a director for Local 7, he is excluded from being represented by ULSSU.

Mr. Schneider testified that he is familiar with the Initial CBA as he helped to draft and negotiate it. He was a union representative and a negotiator during the “initial set of negotiations” with Local 7 and acted on ULSSU’s behalf. He also negotiated the second set and “probably” the third set of negotiations on ULSSU’s behalf.

Mr. Schneider testified that the initial CBA was negotiated between ULSSU and Local 7 in 1992. There were bargaining, proposals, exchanges, and discussions between ULSSU and Local 7 before the initial CBA was approved by the parties. At that time, the negotiation team for ULSSU consisted of himself, Bob Elliott who was the President of ULSSU, Mr. John Bowen (now general counsel for Local 7) and Mr. Bell. Negotiating on behalf of Local 7 as the primary negotiator was Ernie L. Duran (President for Local 7), Stanislaw Kania and other executive board members.

Mr. Schneider testified that the concept and policy of using employees as temporary workers was utilized by Local 7 prior to the initial CBA. The issue of temporary workers concerned ULSSU and was discussed during negotiations of the initial CBA. ULSSU’s position was that there could be temporary workers, but such workers could not impact current staff. Local 7’s position was that it could maintain workers in a temporary position for as long as it wanted.

Mr. Schneider testified that he was initially hired as a temporary worker and that status lasted for almost two years. During this time he acted as an organizer who organized picketers to picket food chains. When Mr. Schneider was initially hired, all job classifications were initially subject to temporary employment. There was never a distinction between executive secretaries and other classifications of employees regarding temporary employment.

CBA2, Article 1, Section 3, was amended because of ULSSU’s concern for employees being hired on temporary status for periods of 1 ½ to 2 ½ years. The ULSSU was successful in negotiating a limitation on the amount of time that an employee could be employed as a temporary employee to one year. The initial CBA did not have a time limit restriction. This provision was amended to read as follows:

The initial CBA, Article 1, Section 4, provided as follows:

It is understood that Local 7 may temporarily employ and/or utilize employees not represented by ULSSU, including international representatives and organizers, deputy secretaries, and volunteer organizing committee members to work on special projects as long as such employment does not result in reduced hours or a reduction in force of the employees represented by ULSSU.

As a result of negotiations and bargaining, CBA2, CBA3, CBA4, CBA5 and the current CBA all contain an Article 1, Section 3, which limits the duration of Local 7’s use of temporary workers to a period of one year. These CBAs provide as follows:                   

It is understood that Local 7 may temporarily employ and/or utilize individuals not represented by ULSSU including international representatives or organizers, deputy secretaries, and SPUR’s to work on special projects as long as such employment does not result in reduced hours or  a reduction in force of the employees represented by ULSSU. Notwithstanding the foregoing, no individual may work on a temporary basis for more than six (6) months at a time, unless both parties agree to an extension for up to an additional six (6) months.

            Mr. Schneider further testified that the phrase “volunteer organizing committee” was in the initial CBA, it was not carried over to CBA2 nor any of the other CBAs. In addition, the acronym SPUR’s was negotiated into CBA2 and the other CBAs. SPUR’s is an acronym for “special projects union representative.” The two phrases are not interchangeable. According to Mr. Schneider, the purpose for discontinuing the use of the phrase “volunteer organizing committee” in CBA2 was because the “volunteer organizing committee” worked for the employer and ULSSU was attempting to get the Union into the workplace. On the other hand, a SPUR could be an organizer. Other than limiting the extension period for temporary worker status and eliminating the “volunteer organizing committee,” no other changes were intended to be made to Article 1, Section 3.

            Mr. Schneider also testified that Article 1, Section 3 has a history of being interpreted by both Local 7 and ULSSU as giving Local 7 the right to hire all employees on a temporary basis. Although the initial CBA gave Local 7 the right to hold a temporary employee in that status indefinitely, CBA2 limits temporary status to one year. Mr. Schneider testified that all subsequent CBAs, CBA2, CBA3, CBA4, and CBA5 and the current CBA have the same identical Article 1, Section 3 provision and the language therein is identical.

            In regard to Article 7 of the current CBA which concerns probationary employees, Mr. Schneider testified that there is a difference between a temporary employee and a probationary employee. A temporary employee is an employee who is hired for six months and his status as such can be extended for an additional six months upon mutual agreement of the parties, which can be no longer than 12 months.

            Mr. Schneider further testified that a probationary employee is an employee who is no longer a temporary employee because he has achieved the status of a permanent employee. Once an employee becomes a permanent employee, a probationary period begins to run for 30 days and may be extended for up to 90 days by ULSSU. A probationary period begins for an employee only after the employee has obtained permanent status. There is no probationary period for temporary employees.

Mr. Schneider also testified that Article 7 in the initial CBA and in the current  CBA are identical concerning probationary employees. The language concerning probationary employees was also initially discussed. Executive secretaries, union representatives and organizers were also covered by this Article. It was never the intent of Local 7 or ULSSU for executive secretaries to have only a probationary period and no period of temporary employment. There has never been an attempt to change the language of Article 7 by Local 7 or ULSSU.

Mr. Schneider further testified that in 1992 the ULLSU wanted to structure the language in Article 7 to be “conquerable” to the language in the provision concerning temporary employees. As a result of negotiations ULLSU agreed to Local 7’s interpretation and proposal regarding how Section 7 should be interpreted. During the probationary period an employee may be discharged at anytime for any reason or for no reason. If an employee passes their probationary period, Local 7 must have just cause to terminate the employee. Mr. Schneider has applied the CBA in the workplace in situations concerning hiring as well as terminating employees. Article 7 applies only to permanent employees.

Mr. Schneider testified that all persons hired by Local 7 are hired on a temporary basis unless approved otherwise by the President. According to Mr. Schneider, this being the case, Local 7 needs no reason to terminate employees who are classified as temporary employees.

Mr. Schneider further testified that temporary employees are entitled to benefits including medical benefits, holiday pay, sick leave, and bonuses such as the Christmas bonus. He also testified that a union representative has never been hired for a special project.

Mr. Schneider also testified that Local 7 does not discipline temporary workers. However, temporary workers have been counseled about their job performance because their work performance has an impact on Local 7. According to Mr. Schneider, this is not discipline. In addition, he testified that Article 7 applies only to permanent employees.

Mr. Schneider acknowledged that there is no definition of special projects. Local 7 determines what a special project is. However, Mr. Schneider did elaborate on the term “special project.” When Mr. Schneider was represented by ULSSU, it was his understanding that Local 7 was not restricted to hiring temporary employees for special projects and ULSSU agreed with Local 7’s interpretation. According to Mr. Schneider, a permanent position can be a special project depending on Local 7’s interpretation. However, he acknowledged that a Union representatives and executive secretaries have never been hired for a special project. According to Mr. Schneider, all Union representatives and executive secretaries start as temporary employees. 

Mr. Schneider testified that Grievant’s duties are set forth in Joint Exhibit 2 and that she passed a proficiency evaluation before being hired. Mr. Schneider maintained that he informed the Grievant that she was being hired on temporary status for 6 months and that at the conclusion of 6 months her temporary status would be extended for an additional six months before a decision would be made as to whether she was permanent.

Mr. Schneider testified that Local 7 has extended the temporary employment status of almost every employee. This includes union representatives and ULSSU has agreed with the position of Local 7. This includes executive secretaries.

Mr. Schneider testified that ULSSU has not grieved the temporary hiring of executive secretaries prior to the Ms. Mueller grievance. After the Grievant filed her grievance, ULSSU has grieved the hiring concerning one other Executive Secretary based upon her being hired as a temporary employee. The result is still pending. No grievances have been filed based upon union representatives being hired.

A review of Mr. Schneider’s testimony reveals that executive secretaries, or for that matter other initial hires, are for all practical purposes treated as permanent employees. For example, initial hires as executive secretaries, are treated from their initial date of hire, as permanent employees. They are eligible to receive the annual Christmas bonus, medical benefits, holiday pay, and sick leave. The only apparent difference to the arbitrator, given the testimony of Mr. Schneider, between what Local 7 considers a temporary employee and a permanent employee is their coverage by the collective bargaining agreement and the protections therein for bargaining unit employees. Assuming arguendo that Grievant is telling the truth about her never being informed of being hired as a temporary employee, she probably would have never discovered her alleged temporary status had it not been for her termination and subsequent filing of the grievance now before the arbitrator.

VI.B.     TESTIMONY OF MR. JOHN R. MATHEWSON

Mr. John R. Mathewson testified that he has been employed by Local 7 for approximately 30 years. He has served as a union representative and as a director. He has been a director since 1987. As a director, he supervises 50% of the union representatives, deals with membership complaints, enforces the collective bargaining agreement with various companies, assists and negotiates certain contracts.

Mr. Mathewson also enforces the CBA between Local 7 and its employees who are represented by ULSSU. This includes hiring employees and monitoring the working conditions and terms of employment such as work locations and holidays.

To his knowledge, Local 7 has never applied its temporary work policy differently to executive secretaries. It has been consistently applied to all employees.

In regard to executive secretary Desiree Barcelona, who was a temporary executive secretary for her initial 6 months, she recently extended her temporary status for an additional six months. The agreement was signed by Mr. Mathewson and Mr. Paul Gruenberger, an officer for ULSSU and is dated October 17, 2006. (Employer Exhibit 6). Ms. Barcelona never filed a grievance concerning her temporary status.

Mr. Mathewson further testified that prior to Ms. Mueller’s grievance, no grievances had ever been filed regarding the temporary status to executive secretaries. Since the Mueller grievance, there have been no individual grievances filed, but there may be one in general concerning temporary workers. To the best of his knowledge, union representatives have always been hired as temporary employees and this history dates back to 1987. That includes the period after the initial CBA between Local 7 and ULSSU. In addition, executive secretaries have always been hired on a temporary basis, including Ms. Barcelona and Ms. Mueller, with ULSSU’s knowledge. Prior to Ms. Mueller’s grievance, ULSSU never objected to nor filed a grievance on behalf of an executive secretary being hired on a temporary status.

Mr. Mathewson also testified that Joint Exhibit 5 came about after Local 7 requested a six-month extension for the most recent executive secretaries that were hired on a temporary basis that were Cindy Barton and Lori Mueller. ULSSU for the first time objected to executive secretaries being treated as temporary workers. At that point, Mr. Merry said they would extend the temporary status under a different provision of the CBA, article. Without prejudice to either party, the word “temporary/probation” was put into Joint Exhibit 5 to preserve the positions of the parties. The word :temporary/probation” was not meant as a new term.

Mr. Mathewson testified that the words “temporary/probation” evolved out of the dispute currently before the arbitrator. There was no doubt in his mind that when Ms. Barton and Ms. Mueller were hired, they were hired as temporary employees. They were both told that during their interviews.

As Mr. Mathewson understands it, Local 7 needs no basis to terminate a temporary employee. He also believes that ULSSU has not asserted that there are any illegal reasons for the termination of Ms. Mueller. 

            Mr. Mathewson further testified that Local 7 does not discipline temporary workers. As a matter of practice, they have not been disciplined because they are temporary and are not permanent. If temporary employees do not meet expectations they can be terminated.

VI.C.     TESTIMONY OF ERNEST L. DURAN, JR.

            Mr. Ernest L. Duran, Jr., testified that he is the President of Local 7. He also served as President in 1992, 1993 and 1994. Thereafter, he served as General Counsel from 1995 and 1996. He assumed the role of President again in 1997 and has remained president to this day.

            President Duran testified that prior to 1992 there was no Union for the staff of Local 7. President Duran encouraged the staff to form a Union. During collective bargaining negotiations with ULSSU, President Duran was the Chief spokesperson for Local 7.

            President Duran testified that in regard to the current CBA, Article 1, Section 3, at the time it was negotiated, the meaning of the first sentence had not had not been interpreted differently since 1992. In 1992, ULSSU wanted union dues. ULSSU wanted a set 30 day probationary period with no temporary status whatsoever. ULSSU also wanted strict seniority to apply. However, Local 7 can hire any worker as a temporary worker. There is no restriction on the purpose for which a temporary employee may be hired. This was discussed during negotiations.

             Union representatives, attorneys, accountants, organizers, are all subject to being temporary employees for at least six months, subject to an additional six month extension period. An employee has no grievance rights as a temporary employee. It is his position that “just cause” was not necessary to terminate Ms. Mueller since she was a temporary employee.

            President Duran testified that he also negotiated CBA2. This is the CBA where a temporary worker’s status was changed from an indefinite period to 6 months and later could be extended for an additional 6 months for a total of 1 year and no longer. Since 1992, Local 7 has had the right to hire employees on a temporary status for purposes of evaluating the employees. This has not been challenged until recently by Ms. Mueller’s grievance.

            In conclusion, President Duran testified that what has changed over the years is the change in the words from volunteer project committee to SPURS and the length of time an employee can be on temporary status, from unlimited, to one year. However, Local 7 can hire any employee on a temporary basis for up to one year.

VI.D.   IS THE CBA BETWEEN ULSSU AND LOCAL 7 CLEAR AND UNAMBIGUOUS?

            A basic assumption concerning collective bargaining agreements is that when an Employer and a Union sign a collective bargaining agreement, they intend that their relationship shall be governed by the CBA. Therefore, as a general proposition, an arbitrator may not attempt to clarify, interpret and construe a CBA when the disputed language is clear and unambiguous. However, if a CBA is ambiguous and unclear, the most basic rule for the arbitrator to follow is to interpret and construe the CBA to carry out the intent of the parties.  L & S Products, 97 LA 282 (McDonald, 1991); USF Red Star, 108 LA 603 (Eischen, 1997); Spokane School District No. 81, 92 LA 333 (Smith, 1989); City of Davenport, 91 LA 855 (Hoh, 1988); Department of Health & Human Services, 83 LA 883 (Edes,1984); and Jacksonville Shipyard, 82 LA 90 (Galambos,1983). Rules of interpretation and construction are only used to assist in ascertaining the intention of the parties and not to defeat such intentions. Bensalem Township School District, 105 LA 97 (DiLauro, 1995); Arkansas Chemicals, 73-1 ARB ¶ 8175 (Holly, 1973); and Peoria Malleable Castings Co., 43 LA 722 (Sembower,1964). It is therefore an Arbitrator’s duty to enforce the CBA, not to alter, supplement, or amend it. Chicago Education Television Association, 70-1 ARB ¶ 8516 (Daugherty, 1970); Moses Lake School District, 100 LA 860 (Smith, 1993); Mallinckrodt Chemical Works, 38 LA 267 (Hilpert, 1961); and American Sugar Refinery Co., 37 LA 334 (Beatty, 1961). A CBA or provision is ambiguous only if it is susceptible to more than one reasonable interpretation. Summitt County Children’s Services, 108 LA 517 (Sharpe, 1997); City of Highland Park, 76 LA 811 (McDonald, 1981); Construction Indus. Comm., 69 LA 14 (Mansfield, 1977); and American Oil Co., 62-1 ARB ¶ 8073, 3279 (Boles, 1961). Emphasis is placed on the fact that arbitrators only allow evidence of bargaining history and negotiations to clarify a CBA that is unclear and unequivocal, i.e., the CBA is susceptible to more than one reasonable interpretation.  Manson Construction Co., 122 LA 483 (Riker, 2006); University of California, 122 LA 532 (Bogue, 2006); Polson School District, 122 LA 609 (Calhoun, 2006).[4] This rule was profoundly stated in Northland Greyhound Lines, Inc., 23 LA 277, 283 (Levinson, 1954): 

The majority opinion lays stress upon the fact that the company’s practice of granting maternity leaves of absence in its discretion in the past ‘became incorporated as an integral part of the bargaining relationship between the parties and a condition of employment during the contract terms.’ This is directly contra to the fundamental rule of contract interpretation in labor-management arbitration that a past practice of the parties may be used in determining the meaning of a contract provision only where the meaning of a contract is doubtful. Past practice cannot be used to give meaning to a provision which is clear and unambiguous; if a past practice conflicts with an express provision of the agreement, the clear language of the agreement will govern.

Local 7’s position is that the Grievant was informed when she was hired that she was being hired as a temporary employee with an initial maximum employment period of six months that could be extended an additional six months. As a temporary employee, Grievant has no rights under the current CBA. Local 7 argues that two provisions of the CBA support its interpretation. Article 1, Section 1, which specifically excludes temporary employees as bargaining unit members of ULSSU and Article 1, Section 3, which provides that Local 7 may hire temporary workers on a temporary status for six months which can be extended for an additional six months upon agreement of the parties. Given these provisions, Local 7 could terminate Grievant for any purpose or for no purpose given her temporary status.

            ULSSU argues that the current CBA is clear and unambiguous. The Grievant contends that she was never informed that she was being hired as an employee who would be on a temporary status for up to one year. The ULSSU argues that the Grievant is not a temporary worker, but rather a permanent worker that was on probationary status and who has successfully completed her probationary period. ULSSU argues that since Grievant was a permanent employee on probation under Article 7 she was entitled to at least two written evaluations during her probationary period and a plan as to how to improve her performance. ULSSU also argues that Local 7 violated Article 7 by failing to provide the Grievant with written evaluations as well a plan for improving herself as specifically provided in Article 7 of the collective bargaining agreement. ULSSU further argues that since Grievant has successfully completed her probationary period, she was an employee with recourse to the grievance procedure and Local 7 discharged the Grievant without just cause.

With all due respect for Local 7, the arbitrator believes that the current CBA, or for that matter, the initial CBA, CBA2, CBA3, CBA4 and CBA5 are all clear and unambiguous. The arbitrator has read and reread Article 1, Section 3. The arbitrator sees no ambiguity and uncertainty concerning any portion of any of the collective bargaining agreements, particularly Article 1, Section 3. Since these collective bargaining agreements are all clear and unambiguous, under arbitral law concerning labor grievances and contract interpretation, the arbitrator may not consider evidence of past bargaining,  negotiations and past practice for purposes of determining the intent of the parties as to the interpretation of Article 1, Section 3.

Under the collective bargaining agreement, employees of Local 7 fall within two categories. They are either permanent employees or temporary employees. If an employee is not hired as a temporary worker, then he/she must have been hired as a permanent worker since an employee must be one or the other. Unless employees are hired under Article 1, Section 3 of the collective bargaining agreement as temporary workers, they are hired are permanent part-time or full-time workers.

Article 1, Section 3 does not provide Local 7, as Local 7 asserts, with the authority to hire all workers on a temporary basis for six months with an additional six- month period with the consent of ULSSU.  Article 1, Section 3, is clearly and unambiguously a protective provision for bargaining unit employees represented by ULSSU. Why is this so? It clearly refers to persons who are not represented by ULSSU, therefore the recognized need to protect the bargaining unit members of Local 7. Five provisos of Article 1, Section 3 support the arbitrator’s conclusion that said provision is a protective provision for bargaining unit employees. First, it provides that temporary workers may be hired to work on special projects. It does not provide that they may be hired for any other reason. This limitation on the purposes for which temporary workers may be hired protects bargaining unit employees. Such a special project might occur if Local 7 needed temporary workers to maintain picket lines at a grocery store. Second, it specifically refers to persons that a Union-Employer would typically consider being needed on a temporary basis, i.e., international representatives or organizers, deputy secretaries and SPURs (special project union representatives). Third, the temporary worker may only be employed to work on a special project if the project will not result in a reduction in hours or a reduction in force of the employees that are represented by ULSSU. Fourth, a temporary worker may only work in the status of a temporary worker for a period of up to six months. And fifth, the temporary worker may only work as a temporary worker for an additional six months if both parties agree. Local 7 must have the approval of ULSSU in order to extend the temporary worker’s status as a temporary employee for an additional six months. If ULSSU disagrees, for whatever reason, particularly if it believes that the workers presence is detrimental to the bargaining unit members that it represents, it may elect not to extend the six-month period.[5]  Article 1, Section 3 is to be interpreted as a protective provision for bargaining unit employees, not an a provision that limits the rights of said employees.

It is important to note that Article 7 covers probationary employees. When Article 7 is read in conjunction with Article 1, Sections 1 and 3, there is no ambiguity. Only permanent employees may be placed on probationary status given Article 1, Section 1. This is because the current CBA protects only permanent employees and not temporary employees. Probationary status is unavailable to temporary workers under Article 1, Section 1.

It is also significant to note that Article 7 concerns the probationary period for new part-time and full-time employees. Local 7, by arguing that Article 1, Section 3 gives it the right to monitor an employee’s work and terminate them at will is in effect treating Article 1, Section 3 as a probationary provision. However, Article 7 provides for an employees probationary period, not Article 1, Section 3.

If the arbitrator interprets the collective bargaining agreement concerning temporary employees to the broad extent that Local 7 so argues, bargaining unit employees would for all practical purposes have two probationary periods. The first probationary period would be for a period of up to one year under Article 1, Section 3 and the second probationary period would be for at least one month, up to four months, under Article 7. There is nothing in the CBA that logically indicates that two probationary periods were intended by the parties. This is additional evidence that employees of Local 7 are hired as part-time and full-time permanent employees subject to the probationary period set forth in Article 7. There is no probationary period in Article 1, Section 3.

While Article 1, Section 3, places several restrictions on temporary workers, there are no restrictions, with the exception of the probationary period set forth in Article 7, for permanent employees. There is no support in the collective bargaining agreement for the position that permanent employees must first work as temporary employees for up to one year before becoming permanent employees. Unless an employee is hired as a temporary worker under Article 1, Section 3, the worker is presumed to be a permanent part-time or full-time employee and entitled to the protections set forth in Article 1, Section 1 of the current CBA.

In conclusion, Local 7, by agreeing to Article 1, Section 3, which concerns hiring temporary employees, has agreed that it shall only hire temporary workers pursuant to provisos and limitations of said Article and Section. If an employee is not hired as temporary worker pursuant to the terms, conditions, and restrictions of Article 1, Section 3, the employee has been hired as a permanent part-time or full-time employee subject to a probationary term as set forth in Article 7 of the collective bargaining agreement.

Given the foregoing, the grievance is arbitrable. Under CBA5, the CBA that Grievant was hired under, Grievant was not hired pursuant to Article 3, Section 1 as a temporary worker. Since she was not hired as a temporary worker, she was hired as a permanent employee.[6]

VI.E    WHAT WEIGHT SHOULD THE ARBITRATOR GIVE THE TESTIMONY OF LOCAL 7 PRESIDENT ERNEST L. DURAN, JR., DIRECTOR KEVIN SCHNEIDER, AND DIRECTOR JOHN R. MATHEWSON?

It is significant to note that President Ernest L. Duran, Jr., Director Kevin Schneider, and Director John R. Mathewson all provided testimony concerning bargaining history, negotiations and past practice that Article 1, Section 3 has historically been interpreted to give Local 7 the right to hire temporary workers and that all workers are initially hired on a temporary basis for one year. Subsequently, they become eligible to become permanent employees, but are subject to a probationary period of three months. If an initial employee passes his/her temporary employment period and probationary period of one year and three months, the employee becomes a permanent full-time employee with vested rights in the collective bargaining agreement. During this 15 month period, no just cause needs to be shown to terminate an employee because the employee has no vested rights in the grievance process given Article 1, Section 1, Article 1, Section 3, and Article 7, Section 1 of the collective bargaining agreement. Despite their testimony as indicated, the arbitrator does not have the authority to consider their testimony to the extent that it attempts to establish bargaining history and past practice that directly conflicts with the clear and unambiguous language of the collective bargaining agreement.

            The testimony of these witnesses is not be inconsistent with the clear and unambiguous language of Article 1, Section 3 to the extent that said provision allows Local 7 to hire temporary workers for special projects for a period to be extended for a period of up to one year. However, their testimony has extended the interpretation of this provision to give Local 7 the unlimited right to hire all employees as temporary employees for up to one year then subject them to a probationary period for 3 months. This is inconsistent with the clear and unambiguous language of Article 1, Section 3.

             As the arbitrator noted above, Article 1, Section 3 is clearly and unmistakably a protective provision for bargaining unit employees. If Local 7 wanted to place such a substantial restriction on the initial hires of its workforce, by treating them as temporary employees for a period of up to one year, thereafter permitting them to become permanent employees with a probationary period of up to three months, it should have expressly negotiated such a provision into the current collective bargaining agreement rather than attempt to give this meaning and interpretation to Article 1, Section 3, a clear and unambiguous protective provision for bargaining unit employees.

Their testimony concerning Article 1, Section 3 is prohibited from being considered by the arbitrator, as an established past practice because Article 1, Section 3 is clear and unambiguous and their testimony contradicts the clear and unambiguous language of this provision. Their testimony is extrinsic evidence that the arbitrator cannot consider. As Arbitrator Justin stated in Phelps Dodge Copper Prods. Corp., 16 LA 229, 233 (1951):

Plain and unambiguous words are undisputed facts. The conduct of the 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 thoughts expressed by the words used.

Also, Arbitrator LaCugna asserted in Hecia Mining Co., 81 LA 193, 104 (1983):

It is axiomatic in labor arbitration that clear and unambiguous language, decidedly superior to bargaining history, to past practice, to probable intent, and to putative intent, always governs.

In addition, Arbitrator Cheney declared as follows in Andrew Williams Meat Co., 8 LA 518, 524 (1947);

After a full and fair consideration, if the forum charged with the construction and interpretation is able to declare with certainty what the intention of the parties was from the writing itself, no matter how difficult this task may be, the instrument is not ambiguous, and the interpreter may not go outside the four corners of the document to ascertain, the intentions of the parties. It is only where the document contains conflicting and inconsistent provisions on a given subject that it is ambiguous and extrinsic circumstances can be availed of in ascertaining the intent of the parties.

Similarly, Arbitrator Wyckoff stated in Tide Water Oil Co., 17 LA 829, 833 (1952):

[Established practice] is a useful means of ascertaining intention in case of ambiguity or indefiniteness; but no matter how well established a practice may be, it is unavailing to modify a clear promise.

Likewise, Arbitrator Caraway wrote in BASF Wyandotte Corp., 84 LA 1055, 1057-58 (1985):

Where a conflict exists between the clear and unambiguous language of the contract and a long standing past practice, the arbitrator is required to follow the language of the contract… While the arbitrator recognizes that it is difficult to accept the overturn of a fifteen (15) year past practice, the Arbitrator is required to do so in light of the clear and certain language…

Suffice to say, just a few weeks ago, this test was once again used by the National Labor Relations Board (“Board”) in Cardinal Health Care, NRLB Slip Opinion 352-019, decided on February 15, 2008, quoting Ceasar’s Tahoe, 337 NRLB 1096, 1097 (2002) as stating as follows:

[T]he Board must first determine whether the stipulation is ambiguous.  If the objective intent of the parties is expressed in clear and unambiguous terms in the stipulation, the Board simply enforces the agreement.  If, however, the stipulation is ambiguous, the Board must seek to determine the parties’ intent through normal methods of contract interpretation, including the examination of extrinsic evidence.  If the parties’ intent still cannot be discerned, then the Board determines the bargaining unit by employing its normal community-of-interest test.  

In coming to this conclusion, the Board set aside a hearing officer’s determination that the stipulated agreement was unclear and ambiguous. The Board concluded that since the language in the stipulated agreement was clear and unambiguous, the hearing officer improperly considered extrinsic evidence that contradicted the clear and unambiguous terms of the stipulated agreement. Also see Bulter Saphalt, LLC, NLRB Slip Opinion 352-032, decided on February 29, 2008.

An Arbitrator who disregards the clear and unambiguous language in a collective bargaining agreement runs the risk of having his arbitration award vacated. As the court stated in District No. 72 & Local Lodge 1127 v. Teter Tool and Dice, 630 F.Supp 732, 736 (Northern District of Indiana, 8th Cir.):

When an arbitrator interprets unambiguous language in any way different from its plain meaning, he amends or alters the agreement and acts without authority. The arbitrator’s award in the case at bar manifests an infidelity to his obligation; the award fails to draw from the essence of the agreement.

This arbitrator found that the vacation provision unambiguously provided that ten days’ vacation was due to all workers with three years’ employment with the company, rather than to all employees with three years’ experience after the agreement came into effect. Nonetheless, the arbitrator interpreted the provision to an opposite manner, based solely upon the testimony pertaining to the parties’ intent at the time of contacting. The arbitrator’s interpretation entirely disregarded the agreements unambiguous provisions…

This is indeed a rare case: the arbitrator held that the parties had not intended the clear meaning of a provision he expressly found to be unambiguous. Such a decision draws its essence not from the agreement, but that from negotiations.

In the case before the court, however, the arbitrator disregarded the agreements unambiguous provision, and did so without support of principles of contract construction or the law of the shop. The vacation of the arbitrator’s award is not based upon error in deciding a question of law such as the parol evidence rule, but rather upon infidelity to the agreement.

Clear and unambiguous language must be respected by an arbitrator. Also see Federated Employees of Nevada v. Teamsters Local No. 631 F.2d 1263 (9th Cir. 1979) and Pacific Motor Trucking Co. v. Automotive Machinists Union, 702 F.2d 176 (9th Cir. 1983). The testimony of Mr. Schneider, Mr. Mathweson, and President Duran is inadmissible (entitled to no weight) to prove that the clear and unambiguous meaning of Article 1, Section 3, means something other than what it clearly provides, as noted above in Section VI.D above in this decision and award.

With the utmost respect for these gentlemen, men who undoubtedly devoted substantial periods of their lives, to protect the rights of their constituents, the arbitrator respectfully appeals to them to very carefully reflect back on when Article 1, Section 4[7], of the initial collective bargaining agreement was negotiated and bargained.  Mr. Schneider, as he testified was hired as a temporary worker organizing workers on the picket lines. His temporary employment for the special purpose of organizing picketers would not be consistent with Article 1, Section 3. Mr. Mathewson was most likely just as busy as Mr. Schneider, working with his business agents. President Ernest L. Duran, Jr. was busy, like his employees, advocating the rights bestowed upon his constituents by the National Labor Relations Board and the several federal and state laws. His constituents consist of both professional and non-professional employees who work in hospitals as well as commercial and food establishments. He did all this while at the same time encouraging his own employees at Local 7 to unionize. The arbitrator has reviewed UFCW Local 7, 122 LA 663 (Monat, 2006) and will take judicial notice of same for the sole purpose of stating that Local 7 is one of the biggest and most powerful unions in the Midwest. President Duran clearly has a large union to administer, police, and protect. Local 7 did not become as large and powerful as it has by Mr. Schneider, Mr. Mathewson, and President Duran being complacent in their quest to make certain that their constituents were properly represented at the bargaining table and in the workplace.

The arbitrator believes that these good men, in negotiating and establishing a new union that would organize their workforce, while at the same time, protecting the rights of their constituents, forgot over time that Article 1, Section 3, was a protective provision for ULSSU, not an additional management rights provision. This is the only logical explanation that the arbitrator can imagine given the clear and unambiguous language of Article 1, Section 3 and their testimony that it was agreed to be interpreted differently.

VII.  DID ULSSU WAIVE THE GRIEVANT’S RIGHT TO GRIEVE HER TERMINATION?

            The clear and unambiguous language of the collective bargaining agreement, particularly Article 1, Section 3 indicates that said provision has been misinterpreted by the parties for several years. This being the case, ULSSU did not waive the Grievant’s right to grieve her termination because a party cannot waiver a contract right without knowledge that a right has been abridged. University Medical Center, 1114 LA 28 (Bogue, 2000); City of Miami, 89 LA 86 (Abrams, 1987); General Telephone Company of California, 106 LA 1043 (Grabuskie, 1996).

            It is significant to note that it is unclear from the evidence when ULSSU first became aware that Article 1, Section 3 was being misinterpreted, and more importantly, misapplied. However, the mistaken interpretation of said provision by ULSSU and Local 7 indicates that ULSSU did not consciously yield or clearly and unmistakably waive any rights that it had under the collective bargaining agreement.  Fina Oil & Chemical Company, 111 LA 107 (Bankston, 1998); Weinstein Wholesale Meat, 98 LA 636, 639 (Eagle, 1992); Shawnee County Sheriff’s Department, 97 LA 919 (Berger, 1991); City of Roseburg, Oregon, 97 LA 262 (Wilkinson, 1991).

            Given the foregoing, the arbitrator finds that ULSSU did not waive the Grievant’s right to grieve her termination. Grievant has standing to grieve her termination under Article 20 of the collective bargaining agreement provided she was not a probationary employee at the time she was terminated.

VIII.   WAS THE GRIEVANT ON PROBATION WHEN SHE WAS TERMINATED?

Under Article 7, Section 1 of the collective bargaining agreement, if the Grievant was on probation at the time she was terminated, she is not entitled to recourse under the grievance process. As noted above, Ms. Mueller was hired by Local 7 on October 27, 2006. Given the collective bargaining agreement, she was not hired pursuant to Article 1, Section 3 as a temporary employee to work on a special project. She was therefore hired as a permanent employee. Her “temporary/probation” period was extended through January 25, 2007. Under the probationary provision set forth in Article 7, Section 2, the maximum time period for an employee to be on probation would be an initial 30 day period plus an extended period of up to 60 days for a total of 90 days. The Grievant’s probationary period therefore expired no later than January 25, 2007. Since the termination letter to the Grievant was dated April 9, 2007 (Joint Exhibit 7), approximately 2 ½ months after Grievant’s probationary period expired, Grievant was no longer a probationary employee at the time she was terminated.  Under Article 7 of the collective bargaining agreement, she has recourse to the grievance process.

VIII.  DID LOCAL 7 VIOLATE THE COLLECTIVE BARGAINING AGREEMENT BECAUSE IT DID NOT HAVE JUST CAUSE TO TERMINATE THE GRIEVANT?

Article 20 of the collective bargaining agreement provides that no employee shall be discharged without just cause.

Ms. Mueller’s termination letter was dated April 9, 2007 (Joint Exhibit 7). This was well beyond the maximum date that her probationary period expired. Since she passed her probationary period and continued to work beyond February 28, 2007 she has vested rights to the grievance process under Article 7, and may only be terminated for just cause.

The termination letter of Ms. Mueller does not state the reasons for Ms. Mueller’s termination. It states only that Ms. Mueller has been terminated because she did not successfully complete her “probationary period.” It is significant to note that this interoffice communication would appear to be consistent with Local 7’s position that initial hires have two probationary periods, the first under Article 1, Section 3 for up to one year and the second under Article 7 for up to three months for a total time period of 1 year and three months under the collective bargaining agreement. However, this position is inconsistent with the clear and unambiguous language of the collective bargaining agreement, especially Article 1, Section 3 and Article 7. Permanent employees such as Grievant have only one probationary period and Local 7’s authority to place Grievant on probation is found in Article 7, not Article 1, Section 3 of the collective bargaining agreement. 

President Duran testified that he terminated Ms. Mueller because she had stated that she had been unable to complete her work assignments because she was too busy but observed her talking to co-workers. This is the extent of Local 7’s grounds for terminating the Grievant. It is unclear what Grievant was terminated for, but the arbitrator believes that it would be fair to assume given President Duran’s statement that the ground for termination was poor work performance. However, of substantial concern to the arbitrator is that the Grievant was never charged with by Local 7 with an offense nor was she given an opportunity to respond to the charge(s). In addition, there is no evidence in the record that an investigation was done concerning Grievant’s job performance nor is there substantial proof that Grievant was guilty of an offense that would be grounds for termination, i.e., poor job performance. The circumstances and proof for terminating the Grievant do not meet the “just cause” test that arbitrator Daugherty set forth in Enterprise Wire Co., 46 LA 359 (1966).  Local 7 did not have just cause to terminate the Grievant.

X.        DECISION AND AWARD.

With the utmost respect for President Ernest L. Duran, Jr., Director Kevin Schneider, Director John Mathewson, and General Counsel John Bowen, the grievance is granted. Ms. Lori Muller is ordered to be reinstated with Local 7 as an executive secretary.

Ms. Mueller’s effective termination date was April 20, 2007. However, she did not report for work on April 12 and 13, 2007. She testified that she was upset about being terminated and called in sick although she was not sick. She otherwise appears to be an honest employee, admitting, rather than lying, that she was not in fact sick. However, her failure to report for work cannot be ignored and will be considered in the arbitrator’s determination as to what is the appropriate remedy.

Ms. Mueller is ordered reinstated effective May 1, 2007 with all back pay and benefits, less wages that she has earned while terminated from Local 7. If the parties mutually agree to forego an analysis on back pay less wages that Ms. Mueller earned while terminated by Local 7, her reinstatement date shall remain effective on May 1, 2007, but her entitlement to back pay shall be, without deduction of wages earned while she was terminated, January 1, 2008. Her reinstatement shall be as a permanent employee who has passed her probationary period.

The collective bargaining agreement of the parties provides that the costs of arbitration shall be paid by the losing party. Therefore, it is further ordered that Local 7 shall pay the arbitrator’s travel expenses, costs, and arbitration fees in the amount of $7,411.56 no later than April 4, 2008.

The arbitrator shall maintain jurisdiction for a period of 90 days from the date of this decision and award to ensure its proper implementation as well as for purposes of clarification.

                                   

DATED: Honolulu, Hawaii, this 3rd day of March, 2008.

                                               

                                                /S/________________________________
                                                MICHAEL ANTHONY MARR
                                                Attorney, Arbitrator, and Mediator

 

STATE OF HAWAII                                  )
                                                                   
)
CITY AND
COUNTY OF HONOLULU    )

On this 3rd  day of March 2008, before me personally appeared Michael Anthony Marr, to me known to be the person described in and who executed the foregoing (Decision and Award) and acknowledged that he executed same as his free act and deed.

                                   

                        SEAL
/S/_________________________________
Notary Public, State of Hawaii
My Commission expires on May 2, 2008.

                                              

                                                CERTIFICATE OF SERVICE

            I do hereby certify that a copy of the foregoing “Award and Decision” was duly mailed, postage prepaid on 3rd day of March 2008 to the following persons at the addresses listed below:

Duane Montaño, Esq.                                                 John P. Bowen, Esq.
1246 Delaware Street                                                UFCW Building
Denver, Colorado 80204                                           7760 West 38th Avenue
                                                                                      Suite #400
                                                                                      Wheat Ridge, Colorado 80033-9982

                                    DATED: Honolulu, Hawaii, March 3, 2008.

                                   /S/_____________________________
                                   MICHAEL ANTHONY MARR
                                   Arbitrator



[1]  There was an eight-day gap between  the execution of the  initial CBA and the second CBA.  

[2]  The testimony indicates that the acronym SPUR’s references the words “special projects union representative.”  

[3]  The Grievant was never disciplined and never received written counseling. In addition, Grievant was never received a work performance evaluation nor was she ever advised that her work performance was not meeting Local 7’s expectations.  

[4]  It is significant to note that the Grievant was hired on October 27, 2006 while CBA5 was in effect. However, since she was terminated under the current CBA and since there are no substantial differences between CBA5 and the current CBA that would have impacted the arbitrator’s decision and award, the arbitrator shall apply the current CBA to determine if the current CBA is either clear and unambiguous or unclear and ambiguous.

[5]  It is significant to note that Mr. Kevin Schneider testified that union representatives and executive secretaries have never been hired for special projects under Article 1, Section 3. This is because they are not hired as temporary workers, but permanent workers, either as part-time or full-time. Since union representatives and executive secretaries have not been hired pursuant to Article 1, Section 3, they are not temporary employees

[6]  Article 7 of the collective bargaining agreement provides that employees are subject to a one month probationary period which may be extended by the ULSSU President or the Secretary Treasurer for thirty day periods up to 90 days. During the probationary period, an employee may be terminated without recourse to the grievance procedure, but is entitled shall receive two written evaluations which will include improvement plans. Please see Section IV., Relevant Contract Provisions above.

[7]  As noted above, Article 1, Section 4 of the initial CBA was later changed to Article 1, Section 3 in later collective bargaining agreements.

 

  

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