Did the Company violate Paragraph 51c of the Labor Agreement in May 2004, when it refused to give Nancy Felder 10 working days to learn the Tube Inspector and Packer job? If so, what is the appropriate remedy?

BACKGROUND

In the face of a work force reduction in May 2004, Brush Machine Utilityman Nancy Felder was bumped from her $11.28 per hour job and attempted to use her 20 years of bargaining unit seniority to bump into the Tube Inspector and Packer classification, carrying an hourly wage rate of $11.95. The Company, being of the opinion that Ms. Felder could not learn the latter job within 10 working days, denied her this opportunity. Some time later, she successfully bid on a job in the Sheet Inspection and Packer “A” classification, carrying the same hourly rate as Tube Inspector and Packer. As of the date of the instant arbitration, she continued to hold this latter position, due to someone else’s being out on Worker’s Compensation.

RELEVANT CONTRACTUAL LANGUAGE

ARTICLE IV

Management

(12) Except as limited by the specific terms of this Agreement, the management of the Company and the direction of its working forces, including the right to hire, transfer, promote, demote, discharge for proper cause, to increase or decrease the working forces is vested solely in the Company, provided, however, that none of said rights of the Company shall be exercised for the purpose of discriminating against Union members.

ARTICLE VII

Grievance Procedure

(42) The arbitrator shall have no power to add to, or subtract from, or modify any of the terms of this Agreement or any other Agreement made supplementary thereto, nor shall the arbitrator rule on any grievance involving the basic Wage Structure, or hours of work or on any other than the specific issue raised by the grievance.

(45) There shall be no appeal from the arbitrator’s decision which shall be final and binding on the Union and its members, the employee or the employees involved covered by this Agreement, and the Company.

ARTICLE VIII

Seniority and Related Matters

(51) When it becomes necessary to reduce the work force, such shall be accomplished in the following manner based on the Bargaining Unit Seniority:

a. Employees in the classification in the department affected shall be laid off from their classification in accordance with their seniority. Employees shall be notified, in writing with a copy to the Union, three (3) working days in advance of the employee’s last scheduled day of work.

b. Any employee with seniority rights who has been laid off in (a) above may exercise his seniority rights against a probationary employee (with the exception of specified maintenance classifications). He may also exercise his seniority rights against the junior employee in the classification for which he has applied provided that he has greater seniority and he is qualified to perform the work required of the classification held by the junior employee. . . .

c. Failing this, an employee may exercise his seniority against a junior employee holding a job for which he is not qualified but has applied for providing he should be able to qualify, as the Company shall determine, within a five (5) working day period. Employees with twelve (12) years of seniority, at the time of application, will be given ten (10) working days to qualify.

POSITION OF THE UNION

Essentially, the Union bases its contention that the Company acted improperly regarding Ms. Felder on two related grounds.

It argues above all that Paragraph 51c is clear and unequivocal in commanding that employees with 12 years of seniority at the time of bumping application must be given 10 working days to qualify for classifications that they have sought in the circumstances of a lay- off. “Will be given” means exactly what it says, asserts the Union: The Company has the right after the 10 days to rule that such employees are not in fact qualified, but the employees must get the 10 days’ opportunity to qual- ify first. Nothing, in the eyes of the Union, could be more straightforward and unambiguous than Paragraph 51c’s holding here.

And, argues the Union, this issue was at any rate completely resolved by the March 2, 2002, arbitration decision of Robert E. Liss (Union Exhibit #1). Arbitrator Liss’s final and binding conclusion (on page 8 of his decision) was that the relevant language “is mandatory in requiring the Company to give all employees with 12 years of seniority ten working days to qualify.” The instant arbitration, the Union contends, involves exactly the same issue.

POSITION OF THE COMPANY

The Company insists that both Paragraph 12 and Paragraph 42 are quite relevant here, as is a critically important clause within Paragraph 51c: “as the Company shall determine.” Arbitrator Liss, the Company suggests, accordingly overstepped his boundaries in ruling as he did. The last sentence of Paragraph 51c in the eyes of the Company is no more a binding commitment than was the previous sentence: It merely states that employees with 12 years of seniority will get twice the amount of time to qualify as less-senior employees should the Company believe that there is, in fact, a prospect of their learning a given job within the 10 days.

The intention of Paragraphs 51b and c, the Company contends, is to isolate people who are in some phase of training. Even the grievant in the Liss case—Doug Caine—not only had worked in the department into which he wished to bump but also had performed many of the required duties and tasks of the job that he sought. Here, no such circumstances existed, the Company points out: Grievant Felder could not possibly have learned the Tube Inspector and Packer job within the 10 days, and any reading that in such a situation it is “mandatory” on the Company to allow the 10 days’ time to qualify constitutes an unwarranted disregard of not only the Management Rights clause but also the all-important “as the Company shall determine” clause within Paragraph 51c.

Answer rating: 100% (QA)

Yes in my opinion the company violated Paragraph 51c of the ... View the full answer