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Title: Hawaii Teamsters and Allied Workers, Local 996, and Oahu Transit Services, Inc.
Date: 
January 30, 2009
Arbitrator: Michael Nauyokas
Citation: 2009 NAC 108

BEFORE ARBITRATOR MICHAEL NAUYOKAS

STATE OF HAWAII

In the Matter of the Arbitration Between

HAWAII TEAMSTERS AND ALLIED
WORKERS, LOCAL 996,

                                    Union,

            and

OAHU TRANSIT SERVICES, INC.,

                                    Employer.
_____________________________________________________________
  

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 Grievance re: Carol Ohelo

(Breach of Contract-Interpretation)

 Arbitration Hearing Date:

January 30, 2009

 

 

ARBITRATION DECISION AND AWARD


Michael F. Nauyokas
Attorney, Mediator & Arbitrator
733 Bishop Street, Suite 2300
Honolulu, Hawaii 96813
Telephone: (808) 538-0553
Facsimile:   (808) 531-3860
Email: michaelnauyokas@hawaii.rr.com
http://www.michaelnauyokas.com
http://www.acctm.org/mnauyokas/


IN THE MATTER OF THE ARBITRATION BETWEEN
HAWAII TEAMSTERS AND ALLIEDWORKERS, LOCAL 996
and
OAHU TRANSIT SERVICES, INC.
(GRIEVANCE OF CAROL OHELO)

INTRODUCTION

This 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.
  
         The 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.

ISSUES
            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 Coordinator?
2.         If Employer violated either (or both) sections of the CBA, what is the remedy?

BACKGROUND
            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 Timekeeper.
  
         Clarice 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.
            Testimony at 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 now.

POSITIONS OF THE PARTIES
            UNION’S POSITION
            The Union 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 "supervisor."  Employer's 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.
  
         The 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.
  
         The 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.
  
         On 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   applies.  Therefore, there is no ambiguity to support a defense of past practice by the Employer.

EMPLOYER’S POSITION

For 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)[1].  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.
  
         Employer 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 this grievance.
            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.
            Employer 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 performance.
            Employer 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.

ARBITRATOR’S ANALYSIS

WHAT SECTION OF THE CBA APPLIES TO GRIEVANT’S PAY RATE DURING TEMPORARY ASSIGNMENT TO THE POSITION OF CLERK COORDINATOR?

The 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 clarification.
  
         The 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[2].  If such a finding could be made, it would make plausible the Union’s argument that Section 23.4[3] of the CBA applies to Grievant’s compensation for a temporary transfer to Ms. Yamaguchi’s position.
  
         The 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.
            While she 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[4] 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.
  
         The 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[5] 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 Arbitrator’s view[6], 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[7].  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 23.1 does.
  
         DOES THE CBA SOMEHOW PREVENT THE EMPLOYER FROM FOLLOWING THE PROVISIONS OF ITS POLICY PROCEDURE MANUAL (PPM)?
            The Union 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[8] 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 opportunity.
            The 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 classifications.  These 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.
            This 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

Employer 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.

The grievance is DENIED.


[1]  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 judgment.

[2]  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.”

[3]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 day.”

[4]  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.”

[5]  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.”

[6]  Apparently this is also the Union’s position based upon the Union’s brief.

[7]  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.”

[8] 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 as promotions.”

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