International Brotherhood of Electrical Workers, Local 204, Union. Janice K. Frankman, Attorney at Law

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1 IN THE MATTER OF THE ARBITRATION BETWEEN ========================================== International Brotherhood of Electrical Workers, Local 204, Union and Interstate Power & Light Company Employer. OPINION AND AWARD Grievance of IBEW, Local 204 (Improper Job Award) FMCS Case No ARBITRATOR: Janice K. Frankman, Attorney at Law DATE OF AWARD: October 11, 2007 HEARING SITE: Alliant Tower 200 First Street SE Cedar Rapids IA HEARING DATE: June 26, 2007 RECORD CLOSED: August 6, 2007 REPRESENTING THE UNION: Matthew Glasson, Esq. Glasson,Sole,McManus & Pearson P.C. Suite 830, Higley Building 118 Third Avenue S.E. Cedar Rapids IA REPRESENTING THE EMPLOYER: Deborah M.Neyens, Managing Attorney Alliant Energy Corporate Services, Inc. 200 First Street S.E. Cedar Rapids IA

2 JURISDICTION The hearing in this matter was held on June 26, The Arbitrator was selected to serve pursuant to the parties collective bargaining agreement and the procedures of FMCS. Both parties were afforded a full and fair opportunity to present their cases. Witnesses were sworn and their testimony was subject to crossexamination. The hearing was transcribed by Jane A. Carson, Carson Reporting, Inc., Cedar Rapids, IA. The parties submitted post-hearing briefs which were received on August 6, 2007, at which time the record closed and the matter was taken under advisement. The parties agreed to a one week extension of time to issue this Award. ISSUE The parties stipulated to the following statement of the issue: Did the Company violate the Collective Bargaining Agreement when it awarded the Mason City storekeeper position to Deb Anderson, and, if so, what is the appropriate remedy? BACKGROUND AND SUMMARY OF THE EVIDENCE Organizational Structure Interstate Power and Light ( IPL Company, Employer ) is a successor corporation and a subsidiary of Alliant Energy. The 60 member IBEW Local 204 unit ( Union ), in this case, is located in Mason City, Iowa. It was Local 263 when it merged with Local 204 in Its CBA with IPL for the term , is combined in a bound Agreement with a nearly identical Agreement between IBEW Local 204 and 949 units and IPL, located in Dubuque,Iowa, and in northern Iowa and southern Minnesota respectively. The two Agreements, negotiated in combined bargaining, share Exhibits A-E which include employee classifications, bumping and recall provisions and a job bidding form. Award of Storekeeper Position; The Grievance The Grievance in this case was filed for the Good of the Union on December 22, 2005, when a Storekeeper position was awarded to Deborah Anderson, who had the lowest seniority of the several unit members who bid for the job. She began her employment with the Company on October 26, She was a Storekeeper s Helper and had substituted for the Storekeeper. The Company awarded her the Storekeeper position because she was fully qualified and able to perform the work of the position without training. She was hired at the top rate and continues in the position which she began on December 12, The Grievance claims violations of Article X of the CBA, past practice and prior agreements. It seeks an award of the Storekeeper position consistent with Contract 2

3 criteria and past practice and a make whole remedy for all employees harmed by the Company s improper award of the position. The Grievance was denied following a January 24, 2006, meeting. Cindy Gunther, Senior Labor Relations Representative met with Messrs. Broghammer, George and White, Senior Customer Service Manager in Mason City, Assistant Union Business Manager and Union Steward respectively. Ms. Gunther s March 9, 2006, letter to Mr. George summarized the positions of the parties and the basis of the Company s decision to award the Storekeeper position to Ms. Anderson:.... She is proficient in the inventory, procurement and dispersal processes, and the numerous computer applications associated with Sourcing systems. There were no other bidders who have any IPL Stores experience. Based upon the fact that Ms. Anderson was qualified at the journeyman (top) level and was awarded the top rate for the Storekeeper job classification ($25.00), the company believes there has been no contract violation and is, in fact, consistent with extensive past practice. The union states that the first step in the progression for filing step rate classifications, The senior bidder meeting qualifications. speaks to minimally qualified and therefore, anyone who meets the minimum qualifications should be awarded the position on the basis of seniority. The company states that the past practice regarding filing positions goes back many years. The standard has been that if a person is sufficiently qualified to be awarded the top rate for the position, otherwise considered as a journeyman, and could perform the duties without a general training period, then they would be awarded the position over someone with more seniority who would not be qualified to be at the top rate..... Ms. Gunther also referred to earlier cases and changes in the collective bargaining agreements between the parties over the years. See, Joint Exhibit , 1999 and 2004 Collective Bargaining Agreements Before 1999, the current Local 204 units had separate CBAs with Interstate Power Company ( IPC ), predecessor to the Company. 1 Dave George was chief negotiator for the Union in combined bargaining on behalf of the three bargaining units in 1999 and He had negotiated the 1996 CBA for then Local 263 with then IPC. 1 The two 1996 Collective Bargaining Agreements are a part of this record as Company Exhibit 2 (Local 263) and Joint Exhibit 3 (Local 204). For clarity, Company Exhibit 2 is the CBA under which the bargaining unit in this case operated until it merged with Local 204 in The first combined CBA became effective in 1999 and was renegotiated in 2004, which is the current CBA. The seniority provisions and Exhibits A in the two 1996 CBAs are distinct. They are highlighted below at page 4 of this Opinion and Award. 3

4 1996 Agreements The 1996 Local 263/IPC Agreement addressed seniority at Article III and Exhibit A. Section 4 of Article III addressed promotions:... It is further agreed, however, that promotions shall be based on seniority and ability. Ability being sufficient, seniority shall prevail..... Exhibit A expressly governs any conflict between it and the Contract provisions. It details Apprentice Scales including a 2 year training period for the Storekeeper Helper position and a 3 year training period for the Storekeeper position. Six month incremental rate increases, expressed as a percentage of the Journeyman Rate, are detailed after which journeyman rate shall apply. Although only the Storekeeper Helper classification is designated as not enrolled in the Formal Joint Apprenticeship Training Program, it appears from the format of Exhibit A, that the same designation was intended for the Storekeeper classification. Company Exhibit 2 at pages 10 and The 1996 Local 204/IPC Agreement addresses seniority at Article X. It sets seniority by occupational groups designated at Exhibit A and provides for posting and filling of job vacancies and promotions as follows: Section Any employee may apply for the job..., but the qualified employees in the department in which the vacancy exists shall be given preference..... Section 13. Promotions shall be based on seniority, ability and qualifications. Ability and qualifications being sufficient, seniority shall prevail..... The Stores and Building Maintenance Department is one of six departments detailed on Exhibit A. It includes Storekeeper, Storekeeper Helper and Janitor positions. Wage rates are expressed incrementally in terms of percentages and specific wage rates. The percentages over three and two years for the Storekeeper and Storekeeper Helper positions respectively are identical to those provided in the 1996 Local 263/IPC Agreement. Certain positions in several of the Departments are identified as Enrolled in Formal Apprenticeship Training Program. The Stores Department positions are not so designated. See, Joint Exhibit 3 at pages and 37 and Agreement In the CBA between Alliant Energy-Interstate Power Company & Local Unions 204/949, classification of employees by occupational units in the /IPC Agreement changed to classification by journeyman, step-rate and entry level positions. Exhibit A details Entry Level and Step Rate Advancement Scales/ Percent of Top Wage Rate by position clustered by training periods ranging from six months to four years. The Storekeeper Helper and Storekeeper positions are identified with two and three year training periods respectively. Six month incremental wage rates for both 4

5 positions are expressed in the same percentages as in both of the 1996 Agreements. Joint Exhibit 2, pages 73 and 74. Article X of the Mason City Agreement, the focus of this case, provides for posting and filling of vacancies at Sections 3, 4 and 7. Section 4 applies to the filling of all positions while Section 7 details procedures for filling positions by classification: Section 4. (a).....awards within the classification covered thereby shall be based upon seniority and qualifications. Qualifications being sufficient, seniority shall prevail. Sufficiency of qualifications is to be determined by discussion between representatives of the Company and the Union and the employee involved. Section Posted positions will be filled according to the procedures listed below and as described herein. (k) Step Rate Classifications Will Be Filled in the Following Order: 1. The senior bidder meeting qualifications. 2. The senior bidder with pre-qualifications, if required. 3. If there are no qualified bidders, the senior person who has passed the appropriate mechanical/clerical Basic Skills assessment. 4. The senior bidder. 5. Off the street. Joint Exhibit 2 at pages 113,114 and 117. The Company had agreed to the Union s request for Companywide seniority. Their 1996 Agreement limited bidding to within occupational groups. The change gave all bargaining unit members greater job bidding opportunities. Except for positions which were a part of a formal apprenticeship program, they could bid for any position as long as they had minimum qualifications. In exchange, the Company did not want to give up the opportunity to consider other qualifications in determining who would be awarded a job position. It wanted an expanded set of criteria for awarding positions in addition to retaining the right to award a position to a fully qualified employee. The Chief negotiators for the Union and the Company, Dave George and Mark Thompson, testified at this hearing. Mr. George ultimately agreed that prior to the 1999 Agreement, the Company had the right to award a step rate position to a fully qualified employee over a more senior minimally qualified employee. He agreed that a top step rate position had been identified as journey level and that those positions had been regarded as informal apprenticeships which, in his view, was a phony description because there was no structured training. See,TR In negotiating the 1999 Agreement, he testified that the parties discussed pre-qualifications as something more, some sort of a qualifying factor and mechanical/basic skills assessment as more of the demonstration of the ability. See, TR

6 Mr. Thompson testified that the Company s position has always been (t)hat management reserves the right to hire a fully qualified individual into a position, whether that be a step rate position or a position that has a formal journey level training attached to it. TR He recalled discussing that point specifically in a grievance meeting in 1998 and during negotiation of the 1999 Agreement. He testified that the Company was steadfast in its position, that the Union withdrew its grievance and had not opposed its view during the 1999 negotiations:..... I would say we were pretty sensitive about this particular issue, and the reason I say that is this: The Company maintained the right.....to pick somebody fully qualified and put them in a top step. That s important to the Company. That s our ability to be able to hire people who are fully qualified into a position. That just is meets the needs of the business, if you will. When we got into the negotiations and the Union s proposal to really expand the pool of people that you would actually would consider for the position, we certainly didn t want to lose the right to hire somebody that was fully qualified, because in fact what we would have done is we would have diluted it to the point that we would have had more applicants and less selection rights if we would have acquiesced on that point. So we had discussion about our ability to hire somebody as fully qualified and we did not want to let go of that. And there was no discussion to the contrary on that particular point. TR Mr. Thompson reported a comment made by Mr. George during the 1999 negotiations with regard to hiring in from the street. Mr. Thompson had referred to the Company s right, if there were no fully qualified employee who bid for a position, to hire from the street, to which Mr. George replied that they better bring the person in at top rate - that that is the only way the Company could get them in Agreement The 2004 CBA includes some changes in the seniority provisions relative to job bidding and awards. The parties had not developed pre-qualifications or a basic skills assessment for step rate classifications over the five year term of their Agreement so they agreed to delete Section 7 (2) and (3), quoted above at page 5, to accurately reflect their process. They addressed pre-qualifications for apprenticeship classifications, expanding Section 7 to address Apprenticeship Pre-Qualification Requirements. None of the other changes are relevant to this matter. Other cases There was reference to several other cases spanning several decades where a fully qualified employee was hired at top rate over a more senior employee. Two 6

7 relatively recent cases were grieved and withdrawn and another was grieved after this case and is pending. One case was withdrawn when the more senior employee withdrew his bid. The other was withdrawn following the grievance meeting to which Mr. Thompson referred in his testimony. This record is not complete with respect to any one of the cases. The evidence provided only by the Company includes seniority lists, award letters, grievance denials, and an earlier grievance and withdrawal letter. Mr. George testified that several cases identified by the Company had not been grieved because they had not been brought to his attention. One of the recent cases, involving Mike Roth, was the subject of considerable testimony. The only document directly related to the case is Company Exhibit 7, an award letter dated February 11, 1998, to Mr. Roth from J.E. Eiben, Operating Superintendent. The award letter advised Mr. Roth that (the Company) determined (he was) the only qualified Journeyman for Vac. #5447 awarding the position to him at the journeyman rate. The letter was offered in response to Mr. George s testimony that the Grievance had been filed because Mr. Roth was outside of the occupational group then withdrawn when the Contract terms changed. Mr. George later testified on rebuttal that he had been told, notwithstanding the contents of the award letter, that Roth was hired based on minimum qualifications and that he did not believe that Roth was fully qualified because he struggled on the job in his new position. Curtis W. Junker was the second most senior bidder for the Storekeeper position awarded to Ms. Anderson. He became the employee who would benefit from an award in favor of the Union when Michael S. Walden withdrew his bid. Mr. Junker holds a Traveling Crew Position as a Truck Driver-Groundman-Operator and has had other experience that satisfies minimum qualification requirements for the position. POSITION OF THE UNION The Union argues that Management has violated the parties Agreement by hiring an employee less senior to other bidders meeting minimum qualifications for the Storekeeper position. It argues that the case depends upon the interpretation of Article X, Section 7(m) and contends that the first criterion senior bidder meeting qualifications means the bidder who meets all qualifications set out in the job posting which turns on the job description. It asserts that the Company s position has been that the same language means a bidder who has prior experience in the classification, sometimes described as fully qualified. Union Post-hearing Brief, page 4. The Union argues that the Contract language is clear and unambiguous requiring the arbitrator to interpret the relevant words of the Contract to give them their ordinary meaning. It provides dictionary definitions of the word qualifications and argues that the job posting based on the Storekeeper job description compels a conclusion that meeting qualifications pursuant to the CBA means meeting minimum qualifications. It asserts that the Company, through its interpretation of the Contract in this matter, has created meanings for meeting qualifications that do not exist in the Contract including a meaning for fully qualified which does not appear and is not defined in the Contract. 7

8 The Union argues that in the event alternative interpretations of the Contract are possible, principles of contract interpretation call for giving effect to all clauses and words. It asserts that its interpretation of the Contract gives effect to the terms minimum qualifications and experience used in the job posting which is required and a part of the Contract language. It points to Ms. Gunther s testimony that consideration of minimum qualifications had no place in determining job bid awards. It argues that the Company s interpretation of the Contract results in the job posting experience requirement to be meaningless since only a bidder who had performed the job would meet the requirement. Finally, with regard to the Contract language, it points to the provision that calls for sufficiency of qualifications to be determined by discussion between the parties representatives and that there was no evidence of any such discussion. It argues that the parties intended that the Union and employee would participate in the evaluation of job bids with the Company. The Union recognizes that the seniority provisions in the Contract are modified seniority clauses and argues that they are sufficient ability as opposed to relative ability or hybrid seniority clauses because the Contract does not require a comparison of ability between junior and senior bidders. It asserts that sufficient ability clauses only require that a senior bidder meet minimum qualifications. It argues that it has presented evidence to support a conclusion that Mr. Junker meets all specifications of what the Company considers to be minimum qualifications notwithstanding issues raised with regard to the fact that he was not fully up to speed in operating a particular software program. Union Post-hearing Brief, page 11. It also argues that its evidence supports a conclusion that he is entitled to be hired in the position at the top rate although the only proper criterion for awarding him the position is meeting minimum qualifications. The Union addresses past practice and bargaining history in the event the Arbitrator concludes that the Contract language is ambiguous justifying consideration of extrinsic evidence. It argues that the evidence provided by the Company does not meet well-established criteria to claim past practice in support of its interpretation of the Contract. The Union cites and quotes cases setting out various criteria and argues that the Company has not demonstrated clarity, consistency and acceptability or mutuality in the interpretation of the Contract. It asserts that there has not been even interpretation of the relevant seniority provisions, and the filing of grievances demonstrates lack of mutuality. It asserts that a case in point is the Roth grievance filed to challenge determination that Mr. Roth was fully qualified for the job. It argues that without the full record in given cases, it is difficult to determine whether there has been uniform application of the Contract terms and that a few cases do not support a claim of past practice. In addition, it argues that the bumping provisions of the Contract as applied by the Employer are not consistent with the interpretation applied to awarding of job bids. It points to one case where a senior employee with minimum qualifications bumped a junior employee. It asserts there is no explanation why the word qualified should have different meanings within the Contract. With regard to the bargaining history of the parties Contract, the Union argues that the change in 1999 to replace occupational classifications with step rate, entry level 8

9 and journey level classifications more clearly delineated job positions and differentiated the job bidding processes. The Union points to changes in the 2004 Contract to delete the pre-qualification and basic skills references in the seniority provisions applicable to step rate bidding. It argues that the current Contract provisions eliminate blurring of the classifications and provide distinct processes for awarding job bids. It asserts there is no dispute that under the current Contract, a fully qualified journeyman who is less senior to other bidders may properly be awarded a position. The Union seeks an interpretation of the Contract language at Article X, Section 7(m) (1) senior bidder meeting qualifications to mean meeting the minimum qualifications set forth in the job vacancy posting. Union Post-hearing Brief, page 19. It seeks an award of the Storekeeper position to Mr. Junker and a make whole remedy which awards him backpay reflecting the difference between the pay he received and the top rate for Storekeeper retroactive to December 19, 2005, and that the Arbitrator retain jurisdiction for 60 days to implement an award. POSITION OF COMPANY The Company asserts that the essence of the dispute here is interpretation of the senior bidder meeting qualifications language at Article X, section 7(m). It contends that meeting qualifications means fully qualified to move to the top rate, or journey level rate of the classification while the Union has argued that it means minimum qualifications. It argues that it is appropriate to consider extrinsic evidence including past practice and bargaining history since the term is susceptible to more than one meaning. The Company points to the importance of giving effect to the intention of the parties and urges the Arbitrator to construe the Contract language in light of the purpose sought to be accomplished. It argues that the language in question was first adopted in 1999 and prior to that it was undisputed that the Company had the right to select a fully qualified journey level employee over a more senior employee who was less qualified. It asserts that there was no distinction among classifications of employees in that regard and it points to Mr. George s reluctant acknowledgment of that fact on crossexamination at the hearing. It also points to Mr. Thompson s testimony at hearing that the Company had no intention of relinquishing its right to prefer fully qualified employees in awarding job bids and to his discussion with Mr. George during negotiations in that regard. The Company details the changes reflected in the 1999 Agreement acknowledging that the journeyman designation is now reserved to classifications with a formal apprenticeship program. It argues that given the Company s expressed intent not to relinquish its right to hire fully qualified employees in all classifications, it is logical that the term senior bidder meeting qualifications as the first preference for step rate classifications to carry the same meaning as senior journeyman in other job classifications. 9

10 With regard to past practice, the Company argues that there has been demonstrated past practice in support of its position, discussing several job awards following the 1999 negotiations which went unchallenged. It notes that one was grieved and withdrawn when the senior employee withdrew his bid. It asserts that any argument by the Union challenging past practice is not supported by an alleged lack of jurisdiction over cases which could have been brought by Local 949 or the fact that senior Local 204 employees did not complain when they were not awarded a job bid. It argues that there has been demonstration of tacit approval of the Company s interpretation of the Contract. The Company discussed the Roth case and Mr. George s testimony with regard to it. The Company supposes that the Union will argue that the case is not evidence of past practice because it grieved the award in favor of Mr. Roth. It argues that any such assertion is not supported because the grievance was based on lack of occupational group seniority and then withdrawn when the Contract changed to eliminate occupational groups. The Company refutes any argument that the Union may make with regard to the language of Article X, section 4, providing support for its case. It argues that the broader language in that section which is a carry-over from earlier contracts does not conflict with or shed light upon the disputed specific language in section 7 which provides classification-specific preferences. With regard to the Union s argument that the bumping provisions of the Contract are inconsistent with the provisions in dispute, the Company refers to Exhibit B which addresses bumping and argues that there is no distinction among classifications and quotes subparagraph (c) which provides recall preference to an employee who held the top step on lay-off. The Company argues that the bumping language, in fact, supports its interpretation of Contract language in this case. Addressing the bumping case addressed by the Union at hearing, the Company points to the parties Continued Employment Letter of Agreement and the uniqueness of the case where a more qualified employee was accommodated in a newly created position permitting bumping by a less qualified employee and thereby retaining both employees. The Company seeks an award which denies this Grievance based upon its interpretation of Article X, section 7(m) which supports its award of the Storekeeper position to Ms. Anderson, the only bidder to meet the criteria of being fully qualified and immediately eligible for the top rate of the position. It argues that the Union has not met its burden of demonstrating a contract violation and therefore there is no basis for reversing the job award. OPINION AND FINDINGS It is appropriate to deny this Grievance. The disputed provisions of the parties Agreement are subject to interpretation based upon consideration of extrinsic evidence 10

11 including bargaining history and past practice. They are not clear and unambiguous and do not carry plain meaning as written. The Contract provisions have been considered for the purpose for which they were included in the CBA and have been interpreted in a manner so as to give them meaning. The bargaining history and evolution of the parties Contracts from 1996 to 2004 provides evidence of the intent of the parties. The Company s award of the Storekeeper position in favor of Ms. Anderson is consistent with the terms of the CBA and with past practice. Careful review and comparison of the Contract provisions over three CBAs supports the Company s position. The Union s interpretation of the 2004 seniority provision is implausible and unsupported. The foregoing background and summary of the evidence provides detail which will be highlighted but not repeated. Contract Interpretation and Bargaining History Seniority provisions are at the heart of a collective bargaining agreement. Entire chapters of well-respected and oft-cited treatises are devoted to the topic of seniority. While management rights have been alluded to, the Company has not attempted to detract from or dishonor the importance of seniority. Seniority clauses vary significantly, from straight seniority which, relevant to this case, calls for an award of a position to the most senior bargaining unit member, without regard to qualifications, to modified seniority clauses. Modified clauses have been carefully and thoroughly analyzed by type including relative ability, sufficient ability and hybrid clauses. The provisions at issue in this case are of the relative and sufficient ability types. Article X, section 7(m) sets out ordered preferences in determining how a step rate job will be awarded. Section 7(m) (1) calls for and supports comparison of qualifications of employees bidding for a position while section 7(m)(2), the second preference, calls only for comparison of seniority among bidders with minimum qualifications. The Union has argued that the Contract is exclusive in providing a sufficient ability clause under which the senior employee with minimum qualifications will be awarded a position. Its argument ignores the first preference in the Contract. With regard to the first preference, the intent of the parties was more clearly expressed in their 1999 Contract, quoted above at page 5, where multiple preference steps were provided. There has been no disagreement that the parties discussed in principle what pre-qualifications and basic skills assessment would include or that they agreed, in 2004, to delete those provisions at Article X, section 7(k)(2) and (3) in the 1999 Contract, after failing to develop expected detail. Mr.Thompson s testimony was unrefuted with regard to the Company s express intent to preserve its right to hire less senior fully qualified employees. It is also important to note that Mr. George clearly testified that meeting minimum qualifications was a requirement in any event. There has been no assertion that senior bidder at section (m)(2) provides for straight seniority without consideration of qualifications notwithstanding Ms. Gunther s testimony to that effect. 11

12 The manner in which the parties collective bargaining agreement has evolved provides insight into and better understanding of the issues raised in this case. The format of the 1996 Local 263 Agreement, negotiated by Mr. George, was very different from the 1996 Local 204 Agreement, and both were changed significantly in However, there has been no evidence or testimony to support the Union s case that perceived substance changes were made. The changes that more clearly differentiated Formal Apprentice and step rate classifications did not have the impact on job bidding apparently perceived by the Union. Past Practice With regard to past practice, this case does not turn on the Company s unrefuted demonstration that there have been several cases since 1999 where less senior fully qualified employees have been awarded positions. The quantity and quality of the evidence in that regard is of concern. The Arbitrator agrees with the Union that proof of past practice must be iron clad in meeting well-established criteria. Nonetheless, it is noted that the Union based its Grievance, in part, on past practice and provided no evidence in that regard. The record in its totality supports this Award. The Company s arguments have been particularly well made and are compelling. There is no doubt that there was shared understanding of the meaning of fully qualified in the job bidding process, admittedly applied and, at the least, tacitly accepted by the Union before adoption of the 1999 Agreement. There has been no evidence to support a conclusion that the Company violated the parties Agreement when it awarded the Storekeeper position to Ms. Anderson in December, AWARD The Grievance is denied. The Company did not violate the parties Collective Bargaining Agreement when it awarded a storekeeper position to an employee who was fully qualified to take the position at the top pay rate for the classification and was less senior than a bargaining unit member who bid for the job and possessed minimum qualifications for the position. Dated: October 11, 2007 Janice K. Frankman, Attorney at Law Arbitrator 12

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