p~ssociation
VOLUNTARY LABOR ARBITRATION TRIBUNAL
in the Matter of the Arbjtr~ltjon between
IntQr"atiDn~l Elevator Constructors
t'ational Elevator Industry, Inc.
CASE NUMBER:
AWARD OF ARBITRATOR
THE UNDERSIGNED ARBITRATOR (s). having been designated in
accordance with the arbitration agreement entered into by the above-named Parties, and dated
and having been duly ~worn and having duly
heard the proofs and allegations of the Parties, AWARDS as follows: For the several reasons recited above, I find the O'Keefe Elevator Com~~y was in violation of the Standard Agreement when on or about October 11, 1982, it employed a new, pr.obationary employee as a Helper in Chadron, Nebraska, when Rick Prososki, an experienced Helper in IUEC f Local 28, was available and was on the Out-Of-Work List.
1he Company is directed to pay l1r. Prososki the amount in wages he would have earned on the Chadron job had he worked, based on the hours actually worked by the new employee between date O'Keefe was notified of the Union's objections by Business Representative Talcott and November 29, 1982, at which time Prososki was hired by Otis Elevator Company. TIle Grievant is not to be paid during this period for travel time or expenses which are normally covered.
1he last two paragraIhs of the above incorporated by reference and made a
STATE OF
COUNTY OF
On this
came and appeared
day of
Discussion section of the Opinion are part of this Award. ~-'1 .~
/' p~:..--> " ~- I!. (/'l,,>«1/ <./ .... c.l.::::--<.":'- VLC '7~
.19 , before me personally
to me known and known to me to be the individual (s) described in and who executed the foregoing instrument and he acknowledged to me that he executed the same.
FORM L 14·AAA
OPINION Mill AWARD
IN THE MATTER OF ARBITRATION BEIWEEN ~
NATIONAL ELEVATOR INDUSTRY f INC.
and Re: AAA 56-30-0041-83
Grievance No. A-0086 INTERNATIONAL UNION OF ELEVATOR •
CONSTRUCTORS AND LOCAL 28, AFt-CIO: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
WOR UNION:
FOR INDUSTRY:
Hearing in Omaha, Nebraska
October 11, 1984
Post-hearing Briefs
January 10, 1985
APPEARANCES:
Robert Matisoff, Esq. O'Donoghue & O'Donoghue Washington, D. C.
ID:iward F. callan, Esq. Putney, Twombly, Hall & Hirson New York, N.Y.
* * * * * * * Before
A. Lee Belcher, Arbitrator
(Chosen by the parties under procedures of
American Arbitration Association)
PROCEEDINGS AND BACKG ROUND
The parties to this arbitration case are National Elevator Industry, Inc.
("NEIl") and International Union of Elevator Constructors ("IUEC"), and
its Local Union No. 28. The Employer directly involved is 0' Keefe
Elevator Company, Omaha, Nebraska.
'!be hearing was conducted in the Red Lion Inn in Omaha on October 11, 1984.
A copy of the transcript of the proceedings was received November 17, 1984.
Post-hearing Briefs were received by the Arbitrator on January 10, 1985. Upon
request of the Arbitrator, the parties approved a 6o-day extension for render
ing this Award.
The grievance, No. A-0086, (which will be quoted in a subsequent section)
was dated October 29, 1982, and filed by Local No. 28 with O'Keefe Elevator
Company. I twas processed through the grievance procedure to arbitration
under terms of the collective bargaining agreement ("Standard Agreement")
which became effective July 9, 1982 and continues until July 8, 1987.
The Standard Agreement applies to the industry nation-wide, except for
New York City, and involves some 40 companies and nearly 100 local unions
throughout the United States and Canada.
Testifying on behalf of the Union were:
Gerald Talcott, Business Representative (Local No. 28)
John N. RUssell, General Secretary-Treasurer ClUEC)
Galled as witnesses by NEIl were:
Dennis B. Wychulis, Vice President-Construction (O'Keefe)
1
James Redden, Construction Superintendent (Otis)
Ross E. Holzmer, Construction Superintendent & Service Supervisor (otis)
Denis J. O'Keefe III, President (O'Keefe)
William Wayne Smith, Director of Field Labor (otis)
The witnesses testified under oath.
*
0' Keefe Elevator Company operates primarily in Nebraska, Iowa and South
Dakota. In those states there are five IUEC locals:
Local 28 - Omaha
Local 33 - Des Moines
Local 46 - Rock Island
Local 54 - Sioux City
Local 129 - Cedar Rapids
In October 1982, o'Keefe had a contract job at Chadron, Nebraska, some 450
miles northwest of Omaha, which lasted about 10 weeks. The manning consisted of
a Mechanic and a Helper. The Mechanic assigned to this project was Carol Banks,
whose home is in Campbell, Nebraska. The Helper, John Simms, was hired locally,
and was considered as an inexperienced, probationary Helper, also referred
to as a 50% Helper (i.e., one who earns 50% of the Mechanic's wage rate).
The experienced Helpers are called 7CY/o Helpers based on their wage rate. At
that time two 70% Helpe~ in Local No. 28 were not working (were "on the
bench or on the "Out-Of-Work List"). These men were Rick Prososki, presently
an employee of O'Keefe, and Bill Bales who has since moved to the Seattle
2
area and is not believed to be working in the industry. The two men were
said to have been available for work in Chadron.
The Standard Agreement provides certain jurisdictional "rights" to local
unions, broken down as to primary and secondary jurisdictions. Outside
those jurisdictions, the areas are referred to as "open terri tory" .
Local No. 2~'s jurisdiction was said to be 40 miles around Omaha and 10
miles around Lincoln, Nebraska. Local 28 is the only IUEC local in Nebraska
although Local 54 in Sioux City, Iowa, has jurisdiction in a small portion
of northeast Nebraska. The remaining areas of the state are considered to
be open terri tory .
The grievance protested the hiring of an inexperienced probationary employee
for the Chadron job when there were two experie med Helpers available, the
Union claiming to do so was a violation of the Standard Agreement. The
Comtany argued that the employment of John Simms was not a violation, asserting
that the cited contractual provisions do not apply to open territory, that
there has been a past practice of hiring new employees locally in open
terri tory, and there were economic and other benefits to be gained by hiring
the new 50% Helper. (More on the respective arguments and evidence in sub
sequent sections.)
First, as to the instant grievance which also made reference to layoffs of
experienced Helpers as well as the hiring of Simms, it should be noted
that the Union withdrew this portion of the complaint, explaining that a
layoff dispute had been previously heard by Arbitrator Jay W. Murphy in
Knoxville, Tennessee and a decision was pending.
3
ISSUE
The arbitrator determined that the issue could be framed as follows:
Did O'Keefe Elevator Company violate the Standard Agreement by hiring a new, inexperienced probationary employee on or about October 11, 1982 for a job in Chadron, Nebraska without first considering an available experienced Helper from Local Union 28 for this work? If so, what shall be the remedr?
Grievance No. A-0086 reads:
On or about Oct. 11, 1982 O'Keefe Elevator Co. did hire a new employee in Chadron, Neb. to help Mechanic Carol Banks install two (2) Hydro. Elevators at Chadron State College. At that time experienced helpers were available on the out Of Work List. Since that time O'Keefe Elevator Co. has laid off experienced helpers in lieu of this new hire.
RELEVANT CLAUSES
a The parties cited the following contractual provisions as having/bearing
on this case:
ARTICLE IV - WORK JURISDICTION
ARTICLE V - WAGES
ARTICLE VI - HOLIDAYS
ARTICLE VII - CONSTRUCTION WORK
ARTICLE VIII - REPAIR WORK
ARTICLE VIII (A) - SHIFT WORK ON MODERNIZATION WORK
ARTlcr;E X - DESIGNATION OF HELPER'S WORK AND QUALIFICATIONS
ARTICLE XII - VACATIONS
ARTICLE XIII - TRAVELING TIME AND EXPENSES
4
ARTICLE XV - ARBITRATION
ARTICLE XVI - JURISDICTIONAL TERRITORY
ARTICLE XVII - WELFARE PLAN
ARTICLE XVIII - PENSION PLAN
ARTICLE XIX - EDUCATIONAL FUND
AR'I'ICLE XXII - HIRING, LAYOFFS AND TRANSFERS
UNION'S POSITION
In presenting its case alleging a violation of Article XXII, par. 1 (b)
of the Agreement, the Union reviewed the history of bargaining as to the
50% Hel1Jers, and noted the Industry' s recognition of the Union as the
exclusive bargaining agent for all Mechanics and Helpers employed by the
Employer with no limitation as to location of job. '!he central point being
that it believes the Employer is obligated to consider available eX1Jerienced
(70%) Helpers for all jobs, including those needed in "open terri tory" ,
before hiring new, inexperienced (50%) Helpers.
It was asserted that in agreeing to establish the probationary Helper (50%)
at a lower wage than the 70% Helper and with no fringe benefit contributions
bythe Employer, there was a commitment that the 50% Hel1Jers would not replace
the 70% Helper. '!his understanding was said to have been originally incor
porated in the 1962 Agreement and carried forward in the 1972 Agreement, and
is presently in the Agreement as par. 1 (b).(l)
(1) Reference to par 1 (b) relates to Article XXII, Par. 1 (b) of the Agreement.
5
In the present dispute,- O'Keefe is charged with having hired fifty-percenters
as a source of "cheap labor" and of undermining the employment opportunities
of experienced men who have completed their probationary period.
In the specific situation at Chadron, Nebraska, it was argued that O'Keefe
should have employed one experienced Helper (Rick Prososki) from Local 28
rather than hiring a new man (Simms) from the local community. '!he Union
faulted O'Keefe for not inquiring of Local 28 as to any experienced Helpers
being available on the OUt-Of-Work List (as O'Keefe has done for some other
jobs); and, further that during Simms' tenure on the Chadron project
experienced Helpers in Local 28 had been laid off from other jobs.
Emphasis was placed on the Union's concern for protecting the seventy-per
centers' seniority rights in whate'ver may be their Local, rather than any
"right" of Local 28, saying that such protection is "not dependent on the
location of a particular job".
Rebuttal arguments were made as to Company's reliance on the language found
in several secti:ans of the Agreement which refers to employees "who permanen
tly live in the area". It was claimed that the intent was not to restrict
employment to Chadron, or on any city-by-city basis.
Although there is reference to work practices in "open territory" in the
Standard Agreement, it was observed that similar references to open
territory were omitted in many other provisions of the Agreement which apply
to open terri tory the same as wi thin the jurisdictions of local unions.
Cited as examples were wages, holidays, overtime, welfare contributions,
pension contributions, and educational program.
6
In answer to the Company's dependence on the alleged past practice of hiring
new, inexperienced Helpers fran the local community, it was acknowledged
that O'Keefe has done so, said to have been in violation of the Agreement
which the Union has protested. Recognized criteria were cited as to what
constitutes a binding past pr.actice and that one essential element is
missing in this case, namely that of mutual acceptance of the practice.
The Union averred that it is not a national practice, but has been a
problem primarily with O'Keefe.
An explanation was offered as to the history of the Union's efforts to
change O'Keefe's practice beginning with a strike by Local 28 in 1978
which ended on direction of the International that the employees work and
grieve later. A grievance was processed to the step of the National
Arbitration Committee where it was ultimately withdrawn for lack of
sufficient specific factual information as to names, etc. The present
grievance followed in 1982.
The Union contended that in 1972 negotiations NEIl sought to limit certain
hiring policies to only those local unions which operate a Union office
with a full time Business Agent, but the Union rejected this proposal.
Moreover, it was said that NEIl was knowledgeable about how to limit the
application of contractual provisions t and that if the parties had intended
to restrict the preferential hiring of experienced Helpers to'local juris
dictions a specific statement to this effect should have been included in
the first sentence of paragraph 1 (b). Concluding that "NEIl is attempting
to win through this arbitration limitations of the kind they failed to
achieve in negotiations".
7
'!be Union discounted the claim of savings for O'Keefe by hiring an inexper
ienced Helper, but that in any event the standard Agreement does not give
the Employer the latitude to make a decision based on the opinion of
possible savings. It was noted that O'Keefe used one of their Mechanics
at Chadron whose home is in campbell, Nebraska, and Local 28 Helpers have
worked on many other O'Keefe jobs in open territory. O'Keefe's offices are
in Omaha as is the office and Business Representative of Local 28, and is
the only local in Nebraska except for a small section next to Sioux City,
Iowa. Accordingly, it was asserted that it would have been reasonable to
have hired a Helper through Local 28 for the Chadron project.
Replying to NElI's concern about where to "draw the line" as to those local
unions surrounding the job in question, it was stressed that the Union is
not expecting an experienced man from San Francisco to have a right to the
job in Chadron over an inexperienced man. Instead, the Union's counsel, in
his opening statement, suggested the line could be drawn ''by looking to those
local unions near the job in question -." '!his principle was repeated in
the Union's brief when reference was made to those locals the Company
"normally deals with". AJ3 for the prospects of chaos and uncertainty, as
expressed by NEII, it was declared that Arbi tm tor Jay W. Murphy addressed
this issue in the Knoxville case in his decision of November 6, 1984.
'!be Union urged that the grievance be sustained and Rick Prososki be paid
whatever amount he would have earned as a Helper on the Chadron job from
October 11, 1982, when Simms was hired, to November 29, 1982 when Prososki
found employment with Otis.
8
COMPANY'S POSITION
'lhe Company's Vice President responded to the grievance by stating:
1) Local 28 has no jurisdiction in Chadron, Ne. 2) O'Keefe Elevator hired a probationary helper in Chadron, Ne. in conformance with the historical practice recognized by the Industry. 3) When helpers are laid off in Local 28 jurisdiction, it is O'Keefe Elevator Co.'s practice to layoff probationary & transient helpers employed in that jurisdiction before laying off helpers who permanently live in the area,in most ins,tances. 4) Layoffs in open territory are made in conformance with the historical practice recognized by the Industry. 5) No violations of the standard Agreement exist.
In counsel's post-hearing brief, it was asserted that there had been no
violation of the Standard Agreement, and summarized his position as
follows:
The hiring of Mr. Simms in Chadron, Nebraska while 7($ helpers were "on the bench" in Omaha, Nebras~ was not in violation of the Standard Agreement (1) as a matter of contract language and interpretation, (2) extended past practice in hiring locally under such circumstances, (3) acquiescenceto the practices in Nebraska and throughout the United states on the part of Local 28 and the International Union over many years, (4) failure to file grievances over the years or to process the matter for final resolution through the arbitration procedures,and (5) failure to pursue the matter through the negotiation process in 1982.
It was explained that a normal crew consists of a Mechanic and a Helper,
either a fifty-percenter or a seventy-percenter, which is what O'Keefe
did on the Chadron job. Chadron being outside the jurisdiction of any
local union (i.e., "open territory"), some 450 miles from Omaha, the
Company believed it could hire locally a new, inexperienced person to
work with the Mechanic, one of O'Keefe's regular employees. There were
several examples given as to economic and operating advantages of having
a person on the job who is familiar with the community and the local
9
suppliers. O'Keefe estimated the money savings on the Chadron job to
be $3200.00.
'the Company argued that it was not a violation of ARTICLE XXII, par. 1 (b)
for O'Keefe to hire a probationary employee for the Chadron project not
wi ths·ta.nding the fact there were two Local 28 experienced Helpers "on the ,
bench'" at the time. It was further noted that IUEC local, unions in Denver
and Sioux City are closer to Chadron than is Local 28 in Omaha, a factor
to be considered if the Employer were required to give seventy percent
Helpers preference OVer a new hire.
Before considering either Mechanics or Helpers from the local union for a
job in open territory, the Company says it first determines if any employee
on its };ayroll in the three state area that it serves is available. '!his
was the case with Mechanic Banks who works extensively in open territory.
At times a Helper will accompany a Mechanic to another job, but generally only
if he is thought of as a prospect for becoming a Mechanic in the future.
'the Company claims there has been a long-standing practice of hiring 50%
Helpers in open territory, with an absence of prior grievances pursued
to arbitration in protest of this practice. 'the grievance on this subject
following the 1978 strike by Local 28 was withdrawn, allegedly because of
insufficient evidence.
Testimony as to the practice of hiring new 50% Helpers by other companies
in the industry in the mid-west was given by executives of Otis Elevator
Company. otis executives testified that the Union had not proposed in past
10
negotiations contract proVisions governing the hiring of probationary
employees in open terri tory, and it was con-tended that there is nothing in
the Standard Agreement which requires an employee to seek experienced
Helpers through a Local prior to hiring a probationary Helper in open
territory.
The Company'citedtestimony Qy the Union's General Secretary-Treasurer
(John Russell) concerning the absence of a practice of hiring new proba
tionary employees in the more heavily populated areas of the country versus
the wide open spaces (with long distances between local unions) as in
Nebraska and the other Plains states.
Questions were raised as to how the Unionfs interpretation of Article XXII,
par 1 (b), would operate in right-to-work states such as Nebraska.
EmPhasis was placed on the several contractual references to experienced
Mechanics and Helpers "who permanently live in the area," arguing that
"area" refers to the jurisdiction of the local union and was designed to
cope with the possible encroachment of transient workers who may seek to
take work from the permanent resident members of the Union. Otherwise, it
was averred that if par. 1 (b) applies to open territory, management "must
look to the 'area' where the job is being performed" and not to the Local's
area of jurisdiction.
Believing that in order for the Employer to be required to first look to
the local union before hiring a new employee in open territory such a con
clusion must be based on "clear and express language which certainly is not
present in par 1 (b)".
11
Acknowledging that par. I (b) may be found to be ambiguous, NEIl argued
it then would be necessary to look to the past practice of the parties
which has been previously mentioned.
Certain contract clauses were cited as directly or indirectly supporting the
NEIl theory that it was not the intent that par. 1 (b) apply to hiring new
employees in open terri tory. Noting further that in open territories the
Union has no full or part-time business agents who maintain open employ
ment lists.
Concern was expressed as to "where to draw the line" if the Union's arguments
prevail, with explanations of problems (resulting in "confusion and chaos")
to be faced by Employers should it be held that par. 1 (b) applies to open
territories.
Company counsel distinguished the present case fran the facts in the "Knox
ville case" decided by Arbitrator MurJ.ily; notably the layoff issue versus
hiring new employees, the scope of the arbitrator's opinion being limited
primarily to the 1st sentence of par. 1 (b) without regard to other para
graphs of Article XXII, and that where specific z:eferences are made to
"protection of persons 'permanently living in the area' and to 'a Local
Union's territorial jurisdiction' a different and opposite conclusion must
be drawn" as to hiring for jobs in open terri tory.
Arbi~rator Murphy's decision calling on the parties to operate under a
"rule of reason" in handling layoffs was said to leave the parties with
making decisions on a case-by-case basis which is apt to lead to "ongoing
litigation".
12
Moreover, in the instant case it was argued that the 450 miles between
Omaha and Chadron, the cost savings, and the effectiveness of having a
local person on the job makes O'Keefe's decision to hire a new probationary
Helper not an unreasonable one.
DISCUSSION
This case, as with many or most interpretation issues, should turn on the
basis of the mutual intent of the parties in their negotiations as best one
can detemine. 'lliis is not too difficult to do when the contract language
addresses th e subject direc~ly, and in sufficient detail to cover the
specific si tua tion to which it is being applied. However, broad, general
language which does not convey a distinct idea to fit a particular set of
facts, often lends itself to plausible but conflicting interpretations.
Because of the near impoSSibility of foreseeing every variant of situation
that may arise, negotiators may be hard pressed to draft totally unambiguous
contract provisions. In searching for clues to the intent one may gain
impressions of the parties' objectives by examining all related sections
of the Agreement, the historical evidence of the give and take in past
negotiations, and the consistency of past application of the contract in
similar circumstances.
In the present case, it must be said, without any criticism of the drafters,
that the language cited by the parties as it mayor may not apply to hiring
employees for jobs in open territory is somewhat ambiguous.
13
Having made that rather obvious, elementary, finding, it seems only logical
to study other cited sections of the standard Agreement for indications as
to how the parties viewed the overall employment relationship. First,
Article II recognizes the Union as the exclusive bargaining representative
for all Elevator Constructor Mechanics and Elevator Constructor Helpers
(including newly-hired, inexperienced Helpers) in the employ of the
Employer engaged in the installation, repair, maintenance and servicing of
all equipment referred to in Article IV. '!he contract provision (Article II)
clearly extends to Mechanics and Helpers working in open territory as well
as within the jurisdiction of a local union.
'!his conclusion is further substantiated by the various articles in the
Standard Agreement covering wages and benefits, e.g.,
ARTICLE V - WAGES
ARTICLE VI - HOLIDAYS
ARTICLE VII - CONSTRUCTION WCRK (HOURS)
ARTICLE XI - SYSTEM OF PAYMENT
ARTICLE XII - VACATIONS
ARTICLE XIII - TRAVELING TIME AND EXPENSES
ARTICLE XVII - WELFARE
ARTICLE XVIII- PENSION PLAN
Because the fifty percent Helpers are probationary employees some of the
above benefits do not immediately apply, but the Helpers become eligible
if and when they move beyond the probationary status.
Equally significant is the fact that the parties in negotiations reached
agreement on employment matters which relate to jobs in areas outside the
14
jurisdiction of a local union in which case the Union's Regional Director
becomes involved rather than a local Business Representative. '!his is
found in Article IV, ~ Jurisdiction, :par. 2 and ];ar. 10. Also in
Article VIII (A), Shift ~ .2!!. Modernization !!2Ek, par. 2. And in
Article X, Designation of Helper's Work and Qualifications, ];are 4., the
latter covering the temporary promotions of experienced Helpers to the
Mechanic classification.
For convenience, portions of par. 1 (b) of Article ~XII will be quoted
below together with my interpretations.
(b) An Employer shall hire experi- 1 '!his is read to mean that enced mechanics and helpers who per- 1 experienced Mechanics and manently live in the area, are seek- i Helpers who are not transing employment and are qualified to j ients will be given preferen-perform the work reqUired by the 1 tial consideration for employ-Employer before hiring a transient 1 ment over transients or new employee or a new inexperienced I probationary employees. Per-employee. I manently living in the area I means the opposite of "transient".
An employee shall be considered a transient until he makes a showing that he is permanently changing his home and residing in the territorial jurisdiction of the local with which he has registered for· referral. Provided the foregoing criteria are met, an employee's status as a transient shall continue for a period of six (6) months from the time he has registered with the local.
I : A transient is one not residing : within the territorial jurisdiction i of the local union through which i he seeks employment. Accordingly,
a person permanently living in the area is one who has lived within the Local's geographical jurisdiction for six months after registering with the Local.
When hiring an experienced mechanic This repeats by inference that or helper the Employer shall use the experienced Helpers are to be given Union as the first source of appli- first consideration for employment cants for employment. Upon an over new, probationary employees Employer's request, the Union shall although the referred applicants refer, on the basis set forth here- may be rejected. And if experienced, inafter, such an applicant within a qualified employees are not available, period of 48 hours after such request the Employer may hire from any other
15
exclusive of Saturdays and Sundays. If the Union fails to refer qualified workmen within the specified period the Employer may obtain workmen from any other available source. '!he Employer has the right to reject any and all applicants referred to it by the Union.
source, either experienced or : inexperienced Helpers.
A study of the several contract provisions cited by NEIl which refer to
employees who "permanently live in the area" reveals no basis for a different
interpretation than that outlined above. '!he phrase has no geograIi'lical tie-
in with where the job is located, it only serves to shield the local members
from encroachment fran transient members of lUEC, and, of course, probationary
Helpers, whatever may be their residence.
'!his objective is carried through fran beginning to end, from employment to
layoff, with the same :purpose being self-evident (as revealed in par. 2)
Par. 2. When layoffs are made by an Employer, the probationary helper will be laid off first. '!hereafter transient employees not including temporary transfers referred to in Pa.ragra.Ii'l (3) below shall be laid off and lastly mechanics and helpers who pemanently live in the area will be laid off. Employees laid off shall be paid at the next weekly Plyroll period following the layoff.
standing alone, not altered by other factors such as a bona fide past
practice, the Arbitrator is compelled to find that par. 1 (b) applies to
open terri tory as well as to jurisdictions of local unions. However, the
implementation is not governed by the jurisdictional lines. Other aspects
of the bargaining relationship enter into that facet which will be discussed
later.
16
The past practice defense was largely buttressed by O'Keefe's claims of
:previously hiring new, probationary employees in open terri tory. Three Otis
executives also testified as to how they have manned crews for such jobs.
And Ross Holzmer of Otis stated that he had hired 4 new employees during
his more than two years at Fargo, N.D. But generally speaking, the Otis
testimony was more favorable to the Union's position than to O'Keefe's. It
is the otis practice to look first among employees on their payroll (as it
is with O'Keefe), and then next to the local business representatives for
experienced Mechanics and Helpers for jobs in adjoining open territories
even though Otis executives testified that they did not believe the Standard
Agreement required them to do so. (Redden-Tr 185,186; Smith-Tr. '201,202)
Hol7:mer's territory for Otis is all "open territory" and, as noted, he
named 4 probationary employees hired without going through a local union
during his more than two years in North Dakota. Significantly, however,
these four people were hired between November 19, 1982 and October 3, 1983,
the first being on November "19, more than a month after O· Keefe hired Simms
in Chadron, and some three weeks after the present grievance was filed on
October 29, 1982. (Holzmer-Tr. 194)
There may have been other instances when one of the NEIl E!mployer.s hired a
new 50% Helper in open territory prior to the grievance against O'Keefe but
the record evidence does not hint at the practice being truly wide-spread;
th~t is, on a national basis. The occasions when O'Keefe did so would
hardly constitute a binding past practice, mutually accepted by Union and
Employer, and of long standing which should govern nationally.
17
'!he Industry argued that the Union had acquiesced to the practice of hiring
new local people for open territory jobs and offered as proof the apparent
absences of grieva."lces from Local 28. Under rather stringent criteria
acquiescence has been held in some cases to constitute acceptance of an
interpretation of an agreement. But this present case is far short of
being in that category. Local 28 did strike over the issue in 1978 and a
subsequent grievance was withdrawn just before the arbitration step for lack
of sufficient identification of individuals and other probative facts.
Obviously some period of time elapsed between the 1978 strike and the
grievance withdrawal. (Based on the experience in processing the present
grievance dated October 29, 1982 and the receipt of briefs on January 10,
1985, the time period could have been quite lengthy.) Moreover, there was
no testimony offered as to how many such times O' Keefe hired .50% Helpers
between withdrawal of the earlier grievance and the filing of this grievance.
And then there is the question as to how many times, if any, did the Business
Representative timely learn of the hiring of new employees in open territory
inasmuch as he is dependent on the Mechanic sharing that information. Not
all Mechanics will do so for various reasons.
'!he history of bargaining is also important. It was established that the
parties had agreed to the 50% probationary Helper with the proviso that in
the event of layoffs the probation~ Helper will be laid off before laying
off a 70% Helper. It is logical to assume that the Union was not likely to
have agreed to give applicants for probationary positions an advantage over
the 70% experienced Helpers already in the bargaining unit, or to take a,way
employment opportunities enjoyed by the 70% employees and give them to pros
pective employees.
· . "
I also found it a little inconsistent for O'Keefe to argue cost savings in
connection with the Chadron project and at the same time stress that they
would send a 70% Helper from anywhere in their three-state operating area
to a job in open territorY if they believed he had the potential to become
a Mechanic. And I discounted the claim of important advantages to the
hiring of a local perscn because he might !mow the community and where to
best obtain supplies. 1his information is readily available from many
sources.
1he question of applying Article XXII to layoffs was not before me, that
, ,
being the issue decided by Arbitrator Murply. However, in view of the
Knoxville decision, and the wording of par. 2, one must ask himself what would
be the situation facing the Employer if one day he hired a new probationary
employee for a job in an open territorY and a day later he laid off an
experienced Helper elsewhere. Would his contractual obligations be
different if in one case the new person is hired after the layoff rather
than a few days before? I don't think so. Hiring and layoffs are the two
sides of the same coin. The Agreement does not provide seIarate and
different policies to be followed.
I agree that the Employer should not be put in a position of having to con
tact several local unions to inquire as to whether there is an experienced
Helper on the Out-Of-Work List who is interested in working on a particular
job in an open terri torY. The tenor and essence of the Standard Agreement
does not impose such an obligation on an Employer as shown by the references
to the role of Regional Director handling certain matters which are beyond
the jurisdiction of the local union. There is presently the latitude of
moving employees on the Iayroll to such jobs, and the Employers have
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apparently been free to seek experienced Helpers from one or more locals
of their choosing. It seems reasonable ani totally consistent with the
various provisions of the Agreement to continue these practices. The key
difference which I find necessary in order for the Employer to be in com
pliance with the Standard Agreement is that before hiring a new, probationary
Helper for a job in an open territory, the Employer must first check with
at least one IUEC local union of his choice as to any available 70% Helpers
on 'the bench. His choice may be either the local union with which he usually
works or a local union whose geograPhical jurisdiction adjoins the open
terri tory at some point. It shall not be necessary to contact more than
one local union nor to go beyond the locals whose jurisdiction border on
the open territory.
There remains the question of the reasonableness of hiring the new employee
at Chadron because of distance from Omaha. I have already disposed of the
argument covering local knowledge of suppliers which I consider a minor
convenience and not a matter of relief under the Standard Agreement. As for
the distance from Omaha to Chadron, I don't find this to be of such magnitude
as to justify O'Keefe's action. The Company objected to paying expenses for
the approximately 450 miles between Omaha and Chadron, yet it paid expenses
for the Mechanic whose home is in campbell, Nebraska, a distance of about
335 to 350 miles from Chadron. I further believe that the distance is a'
reasonable one if the employee can be expected to drive it within a normal
work day,(between 8 a.m. and 5 p.m. - Article VII)and thus without being
paid overtime or premium pay. A trip of 450 miles across Nebraska would.
easily fit into this time frame.
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AWARD
For the several reasons recited above, I find the O'Keefe Elevator Company
was in violation of the Standard Agreement when on or about October 11, 1982,
it employed a new, probationary employee as a Helper in Chadron, Nebraska,
when Rick Prososki, an experienced Helper in IDEC, Local 28, was available
and was on the Out-Of-Work List.
'!he Company is directed to pay Mr. Prososki the amount in wages he would
have earned on the Chadron job had he worked, based on the hours actually
worked Qy the new employee between date O'Keefe was notified of the Union's
objections Qy Business Representative Talcott and November 29, 1982, at
which time Prososki was hired Qy Otis Elevator Company. '!he Grievant is
not to be paid during this period for travel time or expenses which are
normally covered.
'!he last two paragraPhs of the above Discussion section of the opinion are
incorporated Qy reference and made a part of this Award.
Respectfully submitted,
~/j~ A. Lee Belcher, Arbitrator
Columbia, Missouri
March 7, 198.5
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