ARBITRATION PROCEEDINGS AAA Case # 71-20-1300-0207 CWA 6-12-135, In the Matter of the Arbitration Between AT&T SOUTHWESTERN BELL TELEPHONE -and- CWA, AFL-CIO Local 6012, Subject: John Pedrick: Surplus Work Group Dana Edward Bischen, Esq. Impartial Arbitrator Appearances For the Employer: AT&T SERVICES By: Jaime Mata, General Attorney THE CHRIS BOURGEACQ LAW FIRM, PC (On the brief) By: Chris Bourgeacq For the Union: DAVID VAN OS & ASSOCIATES, P. By: Matt Holder Also Present For the Employer: Pau! Cardarella, Director-Labor Relations For the Union: Chad Barnhill, Local 6012 President John Pedrick, Grievant Glynne Stanley, Local 6214 PresidentPROCEEDINGS AT&T Southwest Inc., (“Company”), and the Communications Workers of ‘America, (“CWA" or “Union") designated me to hear and decide, in expedited arbitration under their current Collective Bargaining Agreement, this grievance challenging the John Pedrick (“Grievant” or “Pedrick”). ‘At the arbitration heating held in’ Tulsa, Oklahoma, on October 20, 2015, the Parties were represented by Counsel and provided a full opportunity to present testimony and documentation in support of their positions. The Grievant was present throughout the proceedings and participated fully in the handling of the ease, including testifying as a witness. Following receipt and review of the transcribed record of the hearing, the record was closed with the submission and exchange of post-hearing briefs, which were received on April 18, 2016. ISSUE ‘The Parties were unable to agree upon the precise wording of a submitted issue but did mutually concur with the following submission suggested by the Arbitrator: 1) __ Did the Company violate the Collective Bargaining Agreement, a claimed in the grievance filed December 21, 2011? 2) __Ifso, what shall be the remedy? 2009 AGREEMENT of GENERAL APPLICATION. ARTICLE IV ARBITRATION ection 1. Tf, during the term of this Agreement, with respect to the 2000 Departmental Agreement effective April 5, 2009, between the Union and the Company, and subsequent agreements which by specifie reference therein are ade subject to this Article, a difference shall occur, between the Union and the Gompeny, and continue after all steps in the “Formal Grievance” procedure estatlished in the 2009 Departmental Agreement shall have been undertaken and completed, regarding: zinnu|en ev torreaa the true intent and meaning of any specific provision or provisions thereof Concept as such provision or provisions relate, either specifically or by effect, to prospective modifications or amendments of such agreement), OF b, the application of any provision or provisions thereof to any employee or group of employees, and grievances arising from such application. then in ony such event, either the Union or the Management may submit the Heats of any such matter to arbitration or final decision in aceordance with the procedure hereinafter set forth. section’3, ‘The arbitrator shall be confined to the subjects submitted for ‘Jeeision. and may in no event, as a part of any such decision, impose upon ‘ither party any obligation to arbitrate on any subjects which have not farein been agreed upon 2s subjects for arbitration; nor may the Mbitrator, as apart of any such decision, effect reformation of the contract, or of any of the provisions thereof. ARTICLE XU ‘SENIORITY Section 1. Length of service (Net Credited Service as determined by the pension plan suiministrator) shall be taken into account in the treatment of employees insofar as the aenditions of the business and the abilities of the employees permit. ARTICLE XVII FO} sus section 1. General. The purpose of this Article is to provide the method of SHeeting force adjustments that reduce the number of employees. The Company SH decide the necessity for and sball determine the extent of any force adjustment. - Section 2. Definitions. c. Surplus Work Group—A Surplus Work Group, as determined by the Company, is the Work Group in which the surplus exists. Section 3. Force Adjustment Procedures, a, When the Company determines that a foree surplus exists pursuant to this Article i hall, prior to notifying the affected employees, advise the Union in writing with respect sek Work Group(s) involved, job title(s) and approximate number of employees tS rseted, the location(s) or geographical area(s), and the anticipated foree disposition date. Notification to the affected employees shall be made as soon as practicable, but no later than sixty (60) calendar days prior to the anticipated force disposition date. No fected employee shall be involuntarily terminated prior to ninety (90) calendar days following such notification unless he/she has received a job offer in the Force ‘Adjustment Area. Surplus orientation meetings shall be held with affected employees as soon. 2s practicable. During these meetings the procedures and due dates described in this Article shall be explained. 3BACKGROUND When the Company needs to reduce the size of its workforce, it does so througha force adjustment” process governed by Article XVII of the CBA. In 2011, because of a reduction in work due to a decrease in the Construction & Engineering (C&E) Department's capital budget, the Company needed to decrease manpower in that depattment, The C&E department “declared a surplus” restricted to the "Business as Usual” (“BAU”) cable splicing work group. Not affected or included in the December 13, 2011 declared surplus in the BAU work group were other Tulsa employees in the Cable Splicer job title, including the “First Mile” work group. John Pedrick ("Grievant"), with a Net Credited Service date of March 17, 1980, was working as a Cable Splicer in the First Mile work group when the Company declared the BAU work group surplus. Despite not being in the BAU work group ~ the only group whose workload had decreased and whose headcount needed to be reduced ~ the Grievant and Union believe the Company should have included First Mile splicers in the surplus work group and granted his request for VSP. Apparently there was some initial oral discussion between a manager and Union officials about expanding the surplus but the Company subsequently reiterated that only BAU splicers were declared surplus. After the Grievant's request for VSP was denied, the Union filed the instant grievance challenging his exclusion from the surplus work group. When the grievance remained unresolved at all levels of handling, it was appealed to the American Arbitration Association for final and binding determination. 4Union ‘The Company violated Article XVII, Foree Adjustment, when John Pedrick was not included in the expanded surplus of Cable Splicers in Tulsa. ‘The surplus declaration iRiled for 3 of 41 Cable Splicers and ultimately 4 Cable Splicers departed through the “Gluntary geverance process. Pedrick’s dilemma is that he was one of a handful of Splicers excluded from the surplus despite the fact that Pedrick possesses the same skils and performs similar work to BAU splicers. The similarity of work distinguishes this case tom the decision by Arbitrator Detwiller, where he found the job assignments to be “distinctively different functions.” ‘The Union is not challenging the Company's authority under the CBA to establish the Surplus Werk Group. The Company cannot, however, act in an arbitrary and capricious wiuener when it executes its obligations under the CBA. Additionally or in, the internative, the Arbitrator should sustain the grievance on the ground that Article XVII Goes not contemplate the split created in the Cable Splicer title by assigning some Cable Splicers to BAU and others to First Mile. But forthe split within the title imposed by the Company, Pedrick would have been included in the surplus and eligible for the Voluntary Severance Payment VSP") provided for in the CBA. ‘The Company's breach of Article XVII denied Pedrick the voluntary severance he was TAR led te segeive and the Union requests the arbitrator sustain the grievance and order the Company to pay Pedrick the VSP he was entitled to receive based on his approximately 32 years of service at the time he denied the VSP. The Union also requests the Arbitrator retain jurisdiction for a minimum of 60-days to resolve any disputes etween the parties concerning the implementation of the award. Company ‘The Union disregards the parties’ contract language of Article XVIL, giving clear Theretion to the Company to determine who is in, or not in, a surplus work group, The Grievance also ignores prior arbitration awards and the parties’ past practice of thousands of previous surpluses that did not include every employee holding the sarse job title in the surplus work group. Further, the grievance is also a naked attempt to “properly obtain tarough arbitration a limitation the Union has failed to win through collective bargaining. ‘The Arbitrator should deny this grievance in its entirety. The Arbitrator can and should end his analysis of the parties’ dispute based on the plain language in Article XVII and the arbitral precedent confirming the Company's broad diseretion thereunder. Nevertheless, the parties’ past practice and bargaining history provide yet further and compelling evidence to deny the instant grievanee, The Company's evidence about prior surpluses establishes a clear past practice between the parties of how the Company routinely determines a surplus work group with less than all employees in the same job title in the surplus location. ‘The Union failed to prove the Company violated any aspect of article X11 or of Article XVI when it determined that the surplus work group in Tulsa did not inchide First Mile splicers such as the Grievant. ‘There has been no violation of the parties’ agreement and the Arbitrator therefore should deny the Union's grievance in its entirety. 3,OPINION OF THE IMPARTIAL ARBITRATOR “The issue presented for determination is whether the Company violated Article XIL - Seniority, Article XVII Force Adjustment provisions of the CBA, as claimed in the grievance filed December 21, 2011, The claims advanced in the grievance filed December 21, 2011, read as follows: “The Union charges the Company with violation of Article XIT - Seniority, Article XVII Fosce Adjustment and any other Article or Section that may apply.” On or about’ Pereenber 15, 2011, the Company violated the rights of John Pedrick, a Cable Splicing ecettelan, uith a Net Credited Service date of 3-17-80, and all other similarly situated employees under Article XII, Seniority, Article XVII Foree Adjustment, 2s well as 20 opal other articles and provisions of the 2009 Departmental Agreement, by imposing, 4 force reduction (surplus) in Tulsa, Oklahoma. - Mr. Pedrick testified that he eventually retired from the Company in December 2013 but that he would have retired in 2021 and being denied the VSP caused him to change his retirement plan and work two years longer. Pedrick conceded, based on his observations of BAU splicers from when he worked alongside them, that BAU splicers did not perform identical work, but that it was similar and required the same skills and knowledge. Decisional Standards Because’ this matter involves a disputed issue of contract interpretation and application, the Union bears the burden of proving, by a preponderance of the record evidence, that its interpretation of the CBA is correct. ‘The charging party in a contract grievance bears the burden to prove, by a preponderance of the record evidence, that the responding party violated the parties’ agreement in some fashion. Certainteed Corp., 88 LA. 995, 998 (Nicholas, Arb. 1987); Entex_Inc., 73 LA. 330, 333 (Fox, Arb. 1979); Portes, Inc., 73 L.A. 56, 58 (Jason, Arb. 1979)3 City of Cincinnati, 69 L.A. 682, 685 (Bell, At. 1977); U.S. Dept. of Agric., 120 LA 1560, 1566 (Briggs, 2005). 6‘The following litany of well established principles of contract interpretation in labor-management arbitration. all lead ineluctably to the proper conclusion in this case: 1) To satisfy the preponderance of the evidence standard, the Union “must present sufficient reliable evidence to outweigh that of the [Employer] and to eenvince a reasonable observer that its version of the facts and controlling, authorities is the right one.” Philips Consumer Electronies Co., 91 LA 1040, 1043 (Nolan, 1988). See also School District No. 1, County of Denver, 120 LA 816, 825 (Gaba, 2004) ("Movant must present evidence that it is more credible and. qeaviniing, than that presented by the other party, or which shows that the fact to" be proven is more probable than not"). 2) Teisa fundamental maxim of contract construction that arbitrators cannot jgnore clear-cut contractual language nor may they legislate new language in the iBterests of “fairness” or “equity”, since to do so would usurp the role of the labor organization and employer. Clean Coverall Supply Company, 47 LA 272, 277 (Fred Witney, 1966). See also, ‘Continental Oil Company, 69 LA 399, 404 (A. J. Wann, 1977) and Andrew Williams Meat Company, 8 LA 518, 524 (A. J. Chaney, 1947)- 3) When each of the Parties to a collective bargaining agresment has 9 Qeferent understanding of what was intended by certain language, it is generally fecognized that the party whose understanding is in accord with the common, Teinary, everyday meaning of that language should prevail in the absence of isrepresentation, fraud or mistake. See Hanon & Wil (S. Katz 1967), 67-2 Ard 1 8583. Accord, Stewart Hall Company, 86 LA 370, 372 (Madden, 1985). 5) Arbitrators and courts alike presume that understandable language in 2 3 vectively negotiated agreement means exactly what it says, despite the contentions of one of the parties that something other than the apparent meaning was intended. Independent School Dist. No.47, 86 LA 97, 103 (2985) (Gallagher) “Azbitrators apply the principle that parties to a contract are charged wear tall knowledge of its provisions and of the significance of its language.” Elkouri & Elkouri, How Arbitration Works at 484 (BNA sth ed.) (citing numerous cases, including Carnation Co., 3 LA 229, 232 (Updegraff, 1946). 6) Ifthe language of a collective bargaining agreement is silent or ambiguous ona disputed point of interpretation and/or application, an arbitrator then may Tightly consider parole evidence of mutual intent to resolve a dispute as to the meaning of the unclear contract language. Brigham Apparel Corp., 52 LA 430 (1969). Consistent, prolonged and open ways of applying the contract are reliable indicators of mutual intent often considered when the reach or scope of language is open to reasonable debate. In such circumstances, negotiating history, including draft proposals and discussions back and forth across the bargaining table may also establish intent. It is now well settled that an arbitrator searching for the mutual intent of the Parties under an ambiguous written provision may rely upon such “past practice” and “bargaining history”. q7) The weight to be accorded evidence of past practice or bargaining history qray vary given the facts of a case and the purpose for which itis introduced, ¢.9.» 1) to inform the interpretation of disputed general or ambiguous language in the written eontract; 2) to evidence a mutual agreement upon a term or condition of employment in an area in which the written contract is silent. Less frequently, it fe sometimes allowed to supersede or vary clear but contrary language in the written agreement, 8) Prior arbitration awards, even between the same parties, are not binding in exactly the same way as precedent legal-decisions. But they can have considerable authoritative force. In that connection, a leading commentator on the arbitration process makes the following important distinction: Giving authoritative force to prior awards when the same issue subsequently Mises {stare decisis) is to be distinguished from refusing to permit the merits of the same event or incident to be relegated (res judicata). Where a new incident gives rise to the same issue that is covered by a prior award, the new incident may fe taken to arbitration but it may be controlled by the prior award. See Elkouri & Elkouri, How Arbitration Works, pp. 421-22, 4th edition (BNA, Washington, DC., 1985). See also Timkin Roller Rearing Company, 32 LA 595. Analysis Applying these principles to the factual record in this case, itis obvious beyond cavil that the following plain language of Article XVII reserves to the Company unilateral managerial discretion to determine who is included, or not included, in the declaration of a surplus work group.* Section 1, General. The purpose of this Article is to provide the method of effecting force SGfustments that reduce the number of employees. The Company shall decide the necessity for and shall determine the extent of any foree adjustment. -- Section 2. Definitions. . (e) Surplus Work _Group—A Surplus Work Group, as eeitained by the Company, is the Work Group in which the surplus exists (Emphasis added) Under the Rule of Reason implicit in all such provisions, that reserved management discretion is substantial but it is not completely unfettered. In my considered judgment, the proven rbitrary. discriminatory or otherwise patently unreasonable exercise of ‘Article XVII reserved managerial discretion would be subject to arbitral intervention. But careful consideration of the aaa re eels no such abuse of the Company's plainly reserved managerial discretion in this case.“The Union maintains that this case is distinguishable from three prior arbitration decisions, which denied similar claims; arguing that, in this case, the BAU and First Mile splicing jobs were fungible. However, although some Union witnesses testified otherwise, the preponderance of record evidence establishes that albeit they have the same job title, BAU cable splicers and First Mile cable splicers are completely separate work groups in several fundamental aspects. ee . The record shows that BAU splicers work on new cotistruction build-outs, primarily related to video or U-Verse service and are not loaned to other departments or used for other non-BAU work. BAU splicers do work on both copper and fiber cables and receive additional training to do so. First Mile splicers routinely perform maintenance or rehab work on existing plant; splicing copper cables but not ordinarily splicing fiber. In contrast to BAU splicers, First Mile splicers are often loaned to other assignments, as part of a “Flex Force.” Pethaps as important as these task and skill set differences, BAU splicers and First Mile splicers have separated work groups, different work schedules, different vacation schedules, different garage locations, and different chains of command. ‘Thus, there is little room to reasonably dispute the Company's determination that the BAU splicers and First Mile splicers are different work groups in virtually every aspect of their operations. In three prior cases, ia virtually identical circumstances, three different arbitrators reached the same conclusions concerning the respective rights and authority of these parties under the above-quoted language of Article XVI, §8 1 and 2: “Under the doctrine of reserved management rights, # y has retained the right to determin o Jares, unless that right is limited by some 5 ‘or by binding past practice.” AAA # CWA, Zandra Collins (Steele, 1987) at page 5.Thy sntion of ior in its ving brief is . “Surplus Work analusi Be Clearly, this contract language first affirms an es right to determine the scope of the "Surplus Work Group” and then it thes on © say that this "Surplus Work Group” (as determined by the Company” i Bees ark Group in which surplus exists’. Since ARTICLE XVI, SECTION 2. gives the Company the specific right to determine the content of the "Surplus Work Group” and sora contract provision thea proceeds to use the word "is" which is then followed by Soe ovine Work Group", it could be claimed that since the language of ARTICLE Wyn SECTION 2. is very’clear in giving the Company the right to determine the ‘Gurghis Work-Group” aid then states that this Surpltis Work Group is the Work Haare Nc necessary follows that this right of the Company to determine the “Surplus Work Group”, leiermination of the cont = Group” i jo encompasses the. detcminaton See sonia ae {chredible evidence established that the scope of “Surplus Work Group” and/or “Werk Group" over the course'of a great many years has not always. encompassed an entire job ithe ‘2 particuls tic hi of ss job title. tee ne ee idence” ... made it clear that the determination of the content of the “We yup” under i of wi: job tit put i ‘which ws traini vari slevant cit AAA # 71-300 00091 03, CWA and SWBT, Force Adjustments Information Services Dep't (Klein, 1994) at pages 13-14 Aiticle XVII, Section 1., provides that the company shall decide the necessity for and Arle Normine the extent of force adjustments. This language is commanding not permissive in the use of the word "shall". Both parties are signatorics fe ‘the Agreement sere his provico the company, not the union, has the obligation and sole authority to decide the necessity and extent of adjustments. This language i unambiguous. se de ee nat case’ the company determined the necessity of the declared surplus fo be a station of the Construction Management Center. “Extent” as normaly defined, in everyday language and use means “the amount or degree te ‘which a thing extends. {Webster's New World Dictionary-Prentice Hall-1087). ‘The company decided to extend the surplus to the Senior Recording Clerks involved in the funetion of reporting and ts sePio exclude these involved in encoding. The language of Article XVIL Sections d is_aut a wi up, a the the we in whi SET NSists" The company chose not to inelude the encoders Calvin and Harris in the Sublus group and the arbitrator concludes that is appropriate given the clean sn caenbiguous language of Article XVIT. If the Union wants to change the responsibility for determining surplus, it will have to do so at the bargaining table not at arbitration. PAA # 71:30 000189 98, CWA and SWBT, Patty McCully (Detwiler, 2002) at pp 10Even though technically not bound by these prior decisions, any responsible arbitrator with proper regard for the arbitration process and for stability in collective bargaining should accept these previous interpretations of Article XVIT as binding, They are directly on point, based in the same agreement and not plainly wrong, 0 &$ Bearing Company, 12 LA 132, 125 (R. Smith, 1949); Brewers Board of Trade, Inc., 38 LA 679, 680 (Turkus, 1962). It is not necessary that the subsequent arbitrator endorse all of the reasoning expressed in the earlier opinion. What is important is that the earlier award be final, definitive and set forth.a holding which is not palpably erroneous. Lehigh Portland Cement Co., 46 LA 133, 137 (Duff, 1965). In such circumstances, arbitrators generally conclude that it would be a disservice to the parties to subject them to the unsettling effects of conflicting and inconsistent interpretations of the same contract language in the same set of circumstances. The arbitrator in Pan American Refining Corp., 2 ALAA 1 67,937; 1 69,464 ( McCoy, 1948) succinctly summarized the prevailing view as follows: Where a prior decision involves the interpretation of the identical contact provision, between the same company and union, every principle of common sense, policy and labor relations demands that it stand ‘until the parties annul it by a newly worded contract provision. ‘The Union has not obtained a “newly worded contract provision” to alter the Company's discretion in Sections 1 and 2. of Article XVII, as affirmed in the prior arbitration decisions. Several bargaining initiatives by the Union seeking amendments of the governing language in Article 15 that confers unilateral discretion on the Company to determine the scope and content of « surplus work group have been sucessful. The Company has consistently declined to relinquish its retained discretion to determine the composition of a surplus work group.As a result, Article XVIT has remained materially unchanged since it was originally bargained. In essence, the Union in this case is attempting to achieve by arbitral interpretation that which it has not to date been able to achieve in collective bargaining, Under well-established precedent, a rights arbitrator cannot properly amend or modify the contract language to grant one side, under the guise of interpretation, a bargaining demand it was unable to obtain from thé other party in negotiations or interest arbitration.” Such reasoning obviously underpins the cautionary language of Article IV of the governing CB. . nor may the arbitrator, as & part of any such deéision, effect reformation of the contract, or of any of the provisions thereof". Decision ‘The plain language of Article XVII, §§ 1 and 2, buttressed and reinforced by undisputed record evidence of post practice, bargaining history and prior arbitral precedent, dictates the claims presented in this grievanee must be answered in the negative. AWARD OF THE IMPARTIAL ARBITRATOR 1) The Company did not violate the Collective Bargaining Agreement, as claimed in the grievance filed December 21, 2011. 2) Accordingly, the grievance is denied. Dana C. Cischon Dana Edward Eischen STATE OF NEW YORK COUNTY OF TOMPKINS $8: on thie day agth day of May, 2016 , DANA E. EISCHEN, do hereby certify that am the individual eeentel ierela and that I execated the foregoing instrament, which I affirm upon my cath as Arbitrator fo be my Award in AAA Case No, 71-20-1300-0207; CWA Grievance No. 6-12-18, “fa party attempts, but fails, in contract negotiations, to include a specifi provision iF the agreement, arbitrators will hesitate to read such a provision into the agreement through the process of interpretation” See, Elkouri & Elkowt How Arbitration Works, 7th ed., pp. 9-27. 12