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Teamsters and Allied Workers, Local 996, and Oahu Transit Services, Inc.
Date: January 30, 2009
Citation: 2009 NAC 108
BEFORE ARBITRATOR MICHAEL
STATE OF HAWAII
In the Matter of the Arbitration Between
TEAMSTERS AND ALLIED
WORKERS, LOCAL 996,
re: Carol Ohelo
(Breach of Contract-Interpretation)
THE MATTER OF THE ARBITRATION BETWEEN
HAWAII TEAMSTERS AND ALLIEDWORKERS, LOCAL 996
OAHU TRANSIT SERVICES, INC.
(GRIEVANCE OF CAROL OHELO)
matter came on for arbitration hearing before the Arbitrator, Michael F.
Nauyokas, at a hearing that was held on January 30, 2009, pursuant to the
applicable Collective Bargaining Agreement (“CBA”) provisions.
The Union, HAWAII TEAMSTERS AND ALLIED WORKERS, LOCAL 996
(“Union”) was represented by Sean Kim, Esq.
The Employer, OAHU TRANSIT SERVICES, INC. (“Employer”) was
represented by Gregory Sato, Esq. The
parties were fully and fairly represented by their representatives.
Arbitrator made numerous disclosures in writing and verbally, and the
parties and their representatives had no questions and waived all
objections to those disclosures. Sworn
testimony was taken, exhibits were offered, becoming part of the record,
and oral argument was heard. The
parties each submitted post-hearing briefs for the Arbitrator’s
consideration prior to rendering this decision.
In addition, the parties entered into a number of stipulations
regarding this hearing. By
stipulation, the parties to this grievance agreed that the Union had the
burden of proof and would present its case first.
Employer would not stipulate as to whether Section 23.4 of the
CBA should be the subject of this Arbitration, but did agree that the
Arbitrator would formulate any issues presented as
to Section 23.4. The parties
were in agreement that Section 23.1 was directly implicated in the
grievance. The Arbitrator
therefore formulates the issues as follows:
1. Did Employer violate
Sections 23.1 or 23.4 of the CBA by the manner in which it compensated
Grievant, Carol Ohelo (“Grievant”), a Senior Timekeeper, pursuant to
Employer’s Personnel Policy Manual (“PPM”), for periods when she was
required to temporarily perform the duties of Clarice Yamaguchi, the Clerk
2. If Employer violated
either (or both) sections of the CBA, what is the remedy?
Employer, Oahu Transit Services, Inc.
(“Employer” or “OTS”) operates a municipal bus passenger service
based in Honolulu, Hawai'i. Grievant,
Carol Ohelo (“Grievant”), had been employed with OTS for 18 years.
She worked in clerical positions in Employer’s Finance
Department, keeping the time of Bus Operators who worked for Employer.
Grievant began her employment as an entry clerk, advanced to the
positions of Time Keeper I and II, and is currently employed as a Senior
Yamaguchi (“Ms. Yamaguchi”), also a member of the bargaining unit, was
the Clerk Coordinator to whom Grievant reported in her position as a
Senior Timekeeper. Ms.
Yamaguchi prepared performance appraisals regarding Grievant and signed
off on the appraisals on the appraisal form, on a line of the form which
indicated that she was Grievant’s supervisor.
Periodically, when Ms. Yamaguchi was absent from work, Grievant was
required to perform Ms. Yamaguchi’s duties, in addition to her own.
Upon such occasions, Grievant was compensated by
Employer under Policy 5.1 of the PPM, procedure number 4.
Employer’s PPM mandated raising Grievant’s pay, while she was
on temporary assignment to Ms. Yamaguichi’s duties, to the lowest rate
in the higher classified position, or by increasing her current base pay
rate by five percent of her current base salary, whichever was greater.
There is no dispute on the record that this procedure was followed
prior to the grievance being arbitrated here.
the hearing indicated that this utilization of the practice laid out in
Employer’s PPM had been in effect when compensating temporarily
transferred bargaining unit members in Grievant’s position since 1991,
or about 18 years. There is
some indication in the record that grievances had been filed when
temporary transfers had been required and the pay upgrade not made, but
there was no evidence that the application of Section 5.1 of Employer’s
PPM to temporary transfers, had ever been grieved when the compensation
had been paid under the manual. Until
POSITIONS OF THE PARTIES
argues that Ms. Yamaguchi was Grievant’s supervisor, as described in
Section 23.4 of the CBA, and that this entitles Grievant to payment at Ms.
Yamaguchi’s rate for the times that she performed Ms. Yamaguchi’s work
duties. The Union observes
that Ms. Yamaguchi signed the employee evaluations as a
job description specifically stated that Grievant was required to assume
overall responsibilities in the absence of the "supervisor."
The Union argues therefore, that Employer's claim that
"supervisor" under Section 23.4 means a supervisor as defined in
Section 1.1 of the CBA, is absurd.
Union argues that Section 1.1 of the CBA states the excluded positions,
and limits "supervisors" to those "supervisors as defined
in Section 2(11) of the National Labor Relations Act, as amended."
The Union argues that the plain language of Section 1.1 excludes
"supervisors" as defined by the Act, indicating a recognition in
the CBA that some OTS supervisors who are not statutory supervisors are
included in the bargaining unit. The
Union posits that the fact that the phrasing regarding excluded personnel
is not contained in Section 23.4 requires that a plain reading of Sections
23.3 and 23.4 applies in this situation, and that such a reading shows
that Section 23.3 was meant to deal with non-bargaining OTS personnel, and
Section 23.4 was intended to deal with supervisors such as Ms. Yamaguchi.
Union also argues that it would be totally inconsistent for the Union to
agree to a 105/110% pay upgrade for doing work outside of the bargaining
unit, and have the same limitation for work inside the bargaining unit.
The Union puts forward the proposition that when Ms. Yamaguchi
retires, the Employer would not need to fill her position since Grievant
could be required to fill it and only be paid 110% of her base pay.
the issue of past practice, the Union argues that this is not a situation
involving Union acquiescence to a past practice, although it does not
dispute that this issue had not been raised by bargaining unit employees
until Grievant raised it here. The
Union argues that this is not a past practice that was unwritten but
universally applied; rather, the Union argues that this was a written
procedure regarding pay that the Employer instituted in its PPM.
The Union notes that Employer
specifically acknowledged in its PPM that the procedures in the manual
could not override the CBA. Therefore,
the Union argues that the concept of past practice cannot apply to this
grievance because it is clear and unambiguous that Section 23.4
there is no ambiguity to support a defense of past practice by the
its part, Employer argues that Section 1.1 of the CBA dictates that the
CBA applies only to clerical employees, which includes, in accordance with
the CBA's Exhibit A, Clerk Typists, Entry Clerks, Timekeepers, as well as
Clerk Coordinators. Employer
notes that Section 1.1 clearly excludes "supervisors as defined"
in the NLRA (Act).
Employer argues that the mere statement by Grievant that Ms.
Yamaguchi's status is that of a supervisor does not somehow transform Ms.
Yamaguchi into a supervisor within the meaning of the Act.
Employer points out that Ms. Yamaguchi did not have the authority
to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or to take other supervisory
actions as is specified by the Act. The
Employer argues that as a Clerk Coordinator, Ms. Yamaguchi is still a
clerical worker within the meanings of the CBA, and that her membership in
the bargaining unit is evidence of that status.
also argues that the fact that Ms. Yamaguchi signed off on performance
appraisals as a supervisor does not create status as a “Supervisor”
under the Act. Employer argues
that a performance appraisal does not indicate supervisory authority
unless it effectively recommends discipline or directly affects an
employee's job status. Employer
takes the position that completing the appraisals, which were forwarded on
to the department head for further action, was a clerical duty rather than
a supervisory one. Employer
concedes that while taking action on the performance appraisal may have
amounted to a supervisory function, Ms. Yamaguchi did not possess the
authority to use her independent judgment with respect to her part of the
function. Employer notes that
Ms. Yamaguchi did not complete the portion of the appraisal which
addressed any recommendation for promotion, and was not required to do so.
Employer argues that the authority simply to evaluate employees,
without more, is not sufficient to establish supervisory status for
purposes of the CBA. Employer
concludes this portion of its analysis with the observation that the Union
has failed to meet its burden of demonstrating that Ms. Yamaguchi is a
supervisor within the meaning of the Act, and therefore cannot prevail on
On the issue
of contract interpretation, Employer argues that Section 23.1 of the CBA
expressly and clearly mandates that any employee requiring "to work
temporarily on a job of a higher bargaining unit classification shall
receive the pay of the higher bargaining unit classification."
Employer argues that it implemented PPM Policy Number 5.1, which
compensates a regular employee temporarily transferred to a higher
classified position with either the lowest rate in that higher
classification's salary range or an increase of five percent on the
employee's current monthly base salary, whichever is greater, in a manner
that is in harmony with Section 23.1.
Employer argues that it has a long-standing practice of
compensating its employees pursuant to PPM Policy Number 5.1.
Employer notes that Grievant testified that when she first assumed
Ms. Yamaguchi's duties, she was paid consistent with the PPM Policy Number
5.1, and conceded that she did not challenge the compensation method
because she was fearful of retaliation from her managers.
However, Employer notes that when Grievant was asked whether
management had actually done anything indicating that there would be
retaliation for a grievance on the issue, she answered in the negative.
Employer argues that Grievant was paid for her temporary assignment
to Ms. Yamaguchi’s position in a manner that was consistent with the CBA
and the parties past practice.
argues that this past practice was one of long standing, and that the
procedure laid out in its PPM was based upon a reasonable interpretation
of the CBA’s provisions, and had never been subjected to a previous
grievance. Employer notes that
Section 23.1 provides the general rule that any employee who works
temporarily on a job of a higher bargaining unit classification, will
receive "the pay of the higher bargaining unit classification."
Employer argues that because there exists a salary range, from
entry level pay to the maximum pay allowable under that classification
depending upon bargaining unit members longevity, Employer instituted PPM
Policy Number 5.1 to clarify its obligation under the general mandate of
the CBA. It is Employer’s
position that this method of compensation evolved into an employment
practice that employees came to expect was a normal and proper response to
compensation. Employer argues
that past practice is frequently used by arbitrators in determining the
requirements of the CBA not only in light of an ambiguity of terms, but to
implement general language, or even to create enforceable employment terms
under the CBA that are not explicitly laid out in the contract language.
Employer further argues that paying Grievant exactly the same wage
rate as Ms. Yamaguchi would be prejudicial to Employer as well as to Ms.
Yamaguchi. Employer notes that
Ms. Yamaguchi's salary reflects components of longevity and
outstanding performance, and argues that to be fair to its employees, the
parties agreed that those employees assuming temporary work of a higher
classification should receive that classification pay; however,
Employer argues that longevity and performance rewards are personal
to the bargaining unit member and to allow equal compensation to the
Grievant, would ignore the fact that Ms. Yamaguchi's rate is a reflection
of her work performance and long service to Employer and that it would be
unjust to credit the achievements of a longer serving bargaining unit
member to another bargaining unit member with lesser service time and/or
further argues that Section 23.4 is not applicable in this situation as
the Grievant argues. Employer
argues that the Union’s invocation of Section 23.4 of the CBA ignores
the clear language of Section 1.1 of the CBA, that the term supervisor is
as defined in Section 2(11) of the Act.
Employer argues that Ms. Yamaguchi's responsibility for
coordinating work schedules and preparing performance appraisals regarding
Grievant do not make her a supervisor as defined by the CBA and the Act,
because Ms. Yamaguchi was a clerical employee in the bargaining unit and
Section 1.1 expressly excludes supervisors, as defined by Section 2(11) of
the Act from coverage under the CBA. Employer
concludes by arguing that the Union’s attempt to rely upon Section 23.4
of the CBA in order to have Grievant compensated at precisely the same
payrate as another senior member of the bargaining unit, ignores the clear
intentions of the parties as expressed in the CBA.
SECTION OF THE CBA APPLIES TO GRIEVANT’S PAY RATE DURING TEMPORARY
ASSIGNMENT TO THE POSITION OF CLERK COORDINATOR?
Union, by way of this grievance, has made a novel and ambitious attempt to
forge a new understanding of the terms of the CBA. The Arbitrator must
note that when both parties argue that the clear and unambiguous language
of the CBA clearly supports their positions, and, when the positions taken
by the parties lead to opposite results, there is at a minimum a latent
ambiguity, if not a patent one for his consideration and possible
ambiguity here is as to whether a job description, which gave Ms.
Yamaguchi as the Clerical Coordinator, some nominally supervisory duties
over other members of her bargaining unit, made her a supervisor within
the meanings of the Act.
If such a finding could be made, it would make plausible the
Union’s argument that Section 23.4
of the CBA applies to Grievant’s compensation for a temporary transfer
to Ms. Yamaguchi’s position.
Arbitrator finds this argument, while cleverly conceived and well
presented, does not come across with the clarity and persuasiveness that
the Union might like. First,
the record is devoid of any evidence that Ms. Yamaguchi was not treated in
all of her terms and conditions of employment as a member of the
bargaining unit covered under the CBA.
She was, and continued to be, a clerical worker covered under the
CBA. Her pay was calculated
using the same formulas for longevity and performance that apply to all of
the other bargaining unit members. The
fact that certain duties involving supervision of other bargaining unit
members were delegated to her by the Employer’s supervisory personnel
does not make her a supervisor. The
primary ambiguities in this situation are limited to one line on the
performance appraisal and a line in the position description of her work
as a Clerk Coordinator which gives her certain delegated supervisory
duties with respect to other bargaining unit members.
may have been delegated the responsibility of conducting Grievant’s
performance review and signing off on the appraisal form, there is no
evidence in the record that other than reporting her observations to the
department head, as Ms. Yamaguchi was required to do by her position
description and her supervisor, that she had the requisite indicia of
supervisory authority to take her out of coverage under Section 1.1
of the CBA. Indeed, the
ability of her supervisor to make a delegation of responsibility and then
dictate the final decisions regarding the steps to be taken upon the basis
of such a performance appraisal, is precisely what separates senior
clerical workers like Ms. Yamaguchi, from supervisory personnel not
covered under the CBA.
Union does not grieve Ms. Yamaguchi’s classification here.
The Union only argues that the language in Section 23.4 entitles
Grievant to pay at Ms. Yamaguchi’s full rate for periods of time that
she temporarily did her duties because some documents generated by the
Employer gave Ms. Yamaguchi some supervisory gloss.
This grievance is about the compensation paid to the Grievant for
periods when she was temporarily transferred to Ms. Yamaguchi’s
position. In reviewing the
Union’s arguments attempting to harmonize Sections 23.3
and 23.4 to show that 23.4 applies in this situation, the Arbitrator must
observe that the harmony is not as melodious as the Union would make it
out to be. In the
Section 23.3 applies to temporary transfers of bargaining unit members to
non-bargaining unit positions that are not supervisory; and, 23.4 applies
to temporary transfers of bargaining unit members to supervisory
positions, which by their very nature are excluded by CBA coverage as
defined in Section 1.1. In
addition, the Arbitrator does not find a reasonable basis for the
Union’s contention that under Section 23.4, Grievant should be entitled
to the identical pay rate of another bargaining unit member whose rate is
set not only by their classification, but also by their employment
longevity and overall performance. This
argument gravitates away from the Union’s argument that Section 23.4
applies in this instance as opposed to 23.1.
There is clearly a major distinction between the compensation
structures paid non-bargaining unit personnel and supervisory personnel
excluded from CBA coverage, that makes longevity and overall performance,
as credited by the CBA’s provisions, irrelevant.
In addition, the Union’s argument that Grievant could be required
to take on Ms. Yamaguchi’s position at retirement without receiving more
than10% over her current rate misses the point.
Section 23 of the CBA, which is being interpreted here, involves temporary
assignments not permanent assignments and provides a mechanism by
which temporary assignments may be converted to permanent assignments
under the CBA. Either way,
Section 23.4 does not, in this Arbitrator’s view, apply under the
circumstances demonstrated by the record in this grievance, and Section
THE CBA SOMEHOW PREVENT THE EMPLOYER FROM FOLLOWING THE
PROVISIONS OF ITS POLICY PROCEDURE MANUAL (PPM)?
argues, with great vigor, that because the PPM is a written source this is
not a past practice that was unwritten but universally applied.
The Arbitrator must disagree and find that the Union attempts to
make a distinction that will not make a difference.
The record in this case shows that the PPM procedure
for calculating pay adjustments for bargaining unit members who were
temporarily transferred, had been unchallenged for a period of 18 years.
In addition, the record is clear that immediately prior to this
grievance, a new CBA had been negotiated by the parties.
The Arbitrator notes that the PPM was not a secret, and if the
provisions were in some manner
offensive to the Union, an opportunity for bargaining over these
provisions certainly existed and the Union did not avail itself of that
Arbitrator specifically finds that even if he adopted the Union’s
requirement that the Employer’s past practice be unwritten but
universally applied, this argument has been waived by the Union, and the
doctrine of laches would apply. Simply
put, the Arbitrator finds a longstanding acquiescence by the Union to the
application by the Employer of its PPM in interpreting the terms,
condition and intentions of the parties as expressed in the CBA.
This acquiescence, until this grievance, appears to have been
uniform with respect to the temporary transfer of employees to higher
conditions are sufficient to create a past practice, as that term has been
defined by the vast weight of arbitral authority.
Further, the Arbitrator finds unconvincing the Grievant’s
testimony that she acquiesced to a prior instance where her pay was
adjusted by the PPM due to a fear of supervisory retaliation.
Quite simply, there was no evidence at the hearing that convinced
the Arbitrator that there was any basis for such a fear, particularly
given the strong protections afforded bargaining unit members in
exercising their rights under the CBA.
decision may be perceived as unfair to the Grievant from her perspective.
She willingly worked at a higher position.
Her ambition and willingness to meet Employer’s needs are
commendable. The Arbitrator
understands the perception of unfairness to the Grievant; however, he is
bound to interpret the contract not to determine fairness.
Here, the parties expressly agreed to which employees were members
of the bargaining unit, and which were not.
Ms. Yamaguchi was a member of the bargaining unit, and was not a
supervisor. This fact alone
makes Section 23.4 of the CBA inapplicable in this grievance.
DECISION AND AWARD
did not violate Section 23.1 of the CBA by the manner in which it
compensated Grievant, a Senior Timekeeper, pursuant to Employer’s PPM, for
periods when she was required to temporarily perform the duties of Clarice
Yamaguchi, the Clerk Coordinator. Section
23.4 of the CBA is not applicable to this grievance.
grievance is DENIED.
Employer notes that the Act defines "supervisors" as
any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or responsibly to direct them, or
to adjust their grievances, or effectively to recommend such action, if
in connection with the foregoing exercise of such authority is not of a
merely routine or clerical nature, but requires the use of independent
The Job Title of Ms. Yamaguchi according Union Exhibit 6 was
“Timekeeper Clerk Coordinator.”
The bargaining unit designated in the Exhibit indicates
“clerical.” The key
responsibilities for the position is to: “Plan, organize, and
supervise the activities of the Timekeeping Section.”
23.4 states:”Clerical workers will be upgraded in status if they are
actually performing the duties during the absence of the incumbent
supervisor. It will be a
rebuttable presumption that the senior clerk in a section who performs
the usual duties of the incumbent supervisor shall be considered to be
performing supervisory duties. The
employee with the senior title will receive the temporary transfer pay
of the incumbent supervisor if the supervisor is absent for one (1) full
Section 1.1 reads as follows: ”This Agreement shall cover all
employees of the Company contained in the bargaining unit as determined
by the National Labor Relations Board in Cases 37-RC-989; namely, all
clerical employees employed by the Company, excluding, however, all
other employees, confidential employees, professional employees, guards,
and supervisors as defined in Section 2(11) of the National Labor
Relations Act, as amended.”
Section 23.3 states: “Bargaining unit employees temporarily
performing the duties of a higher-paid nonbargaining unit classification
shall receive the pay of that classification but no more than 110
percent (110%) of the represented employee’s regular rate.
No bargaining unit employee shall be required or compelled to
accept a temporary transfer to a nonbargaining unit position.”
Apparently this is also the Union’s position based upon the
Section 23.1 states: “An employee required to work temporarily
on a job of a higher bargaining unit classification shall receive the
pay of the higher bargaining unit classification.”
Employer’s Personnel Policy Manual, Policy Number 5.1 is entitled
“Compensation Policy on Promotion Temporary Transfer, and Demotion”
. Procedure 4 under Policy
5.1 states: ”A regular
employee temporarily transferred to a higher classified position with a
salary range shall receive either the lowest rate in the salary range or
an increase of 5 percent on the employee’s current monthly base
salary whichever is greater. Temporary
transfers to a higher position shall be compensated in the same manner
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