For the Employer- James F. Norton, Esq. For the Union - Alfred Gordon O'Connell, Esq.

Transcription

1 1 In the matter of ) ) United Steelworkers Local 5696 AFL-CIO ) ) DOT: USW: KAB and ) Massachusetts Department of Transportation ) ) Grievant: Peter Fimognari (Lateral Transfer) Appearances: For the Employer- James F. Norton, Esq. For the Union - Alfred Gordon O'Connell, Esq. In accordance with the Collective Bargaining Agreement (hereinafter "CBA") between the Commonwealth of Massachusetts Authority (hereinafter "Employer") and the United Steelworkers of America, Local ("Union") this matter came before Arbitrator Harvey M. Shrage. The Parties could not agree upon an issue. The Union offered the following issue for consideration: Did the Department violate Article 14, of the Collective Bargaining Agreement when it failed to transfer the Grievant to the MEN IV position vacated by Kevin St. Jean? If so, what shall be the remedy? The Employer proposed the following issue for the Arbitrator's consideration: Whether Mass DOT violated Article 14 Section 4 of the Unit B Collective Bargaining Agreement, when it failed to agree to assign the Grievant as the lead mechanic in the Auburn Depot and/or failed to agree that in that position Peter Fimognari did not have to perform any repairs? If so, what shall be the remedy? Following the Transportation Reform Act, the various Unions representing employees of the former Mass Turnpike Authority and Mass Highway Department were merged into six bargaining units. It was agreed that the positions at issue in this case fall within Unit B and that the Alliance-AFSCME-SEIU/Unit 2 agreement is applicable to this case.

2 2 A hearing was held in Boston, Massachusetts on June 9, 2015 and September 25, 2015 at which representatives of the Parties appeared. They had full opportunity to offer evidence and argument and to examine and cross-examine witnesses. The Parties submitted post hearing briefs that have been fully considered. Background Peter Fimognari, (hereinafter "Fimognari" or "Grievant") was employed by the Massachusetts Turnpike Authority and by the DOT for a combined total of 26 years. The Turnpike Authority and DOT merged in During his employment with the Turnpike Authority the Grievant was employed as a first class mechanic, senior mechanic, and foreman. When he became a foreman in 2003 he moved from Chicopee to Blanford, returning to Chicopee in January At the time of the merger with DOT, the Grievant's job title changed to MEM IV, Motor Equipment Mechanic IV. According to the Grievant his duties did not change. The Grievant testified that his duties included prioritizing work, purchasing parts, and supervising employees. He stated that prior to April 1, 2014 he did "0% vehicle maintenance" as an MEM IV. He stated that he only assisted a mechanic in an emergency. He also stated that he had a State issued cell phone, credit card for business purchases, and a State vehicle for business use and for computing to and from work. Since 2009/10 the Grievant held Union office, including holding the position of Chair. The Grievant was retired from the DOT at the time of the hearing. In April 2014 the Grievant requested a lateral transfer to the Auburn garage. At the time of his transfer request he worked in the Chicopee garage. In an dated April 1, 2014 to Human Resources Representative, Christine Mountain (hereinafter "Mountain") the Grievant stated: Please accept this as my request for a lateral transfer to the District 3 Auburn M-5 garage. In an dated April 2, 2014 to District Director Jonathan Gulliver and Mountain the Grievant stated: To All

3 3 Please accept this as my lateral transfer request to the District 3 Auburn garage Foreman MEN TV position. The Grievant stated that he sent a second to make sure that he was applying for the foreman position and he wanted his request to go to more than one person. He testified that he heard that Kevin St. Jean (hereinafter "St. Jean"), an MEM IV, was going to be promoted creating an opening. According to the Grievant, after he submitted his request for a transfer he received a call from St. Jean who told him that he would be happy to have him come to the Auburn garage. Approximately one month after submitting his request for a transfer the Grievant and his union representative met with St. Jean. At that time St. Jean stated that the interviews had started and the Grievant notified him that he did not get notice. The Grievant subsequently found out that another employee was awarded the job leading the Grievant to file the instant grievance. A series of s were introduced into evidence. An e- mail from Union President Karen Bartholomew (hereinafter "Bartholomew") to Gulliver dated August 4, 2014 at 7:12AM stated: Hi Jonathan, I understand that MEN IV, James Ouzounian, was recently transferred to the garage in Auburn. Was that a backfill position or for the MEM IV posting, or a lateral? Also, what is his functional title? Please provide a response. An from Gulliver to Bartholomew dated August 4, 2014 at 11:24AM stated: James Ouzounian had a request in for a lateral from M6 Weston to M5 Auburn dated 1/14/2014. The opening became available when Kevin St. Jean was moved into the PC3 position. We do not have a functional title listed for him. An from Bartholomew to Gulliver dated August 4, 2014 at 12:37pm stated: Hi Jon,

4 4 I know that Peter Fimognari also had a lateral request in. Why was Jim selected over Peter? An at 2:05PM on August 6, 2014 from Gulliver to Bartholomew with a copy to the Grievant stated: If I recall correctly, we asked HR at the time if we should additionally interview Peter because he also had a lateral request in (which I was aware of because Peter Cc'd me on it directly). We were told James Ouzounian's had precedence because it pre-dated Peter's request. Supervisors were satisfied after the interview with James Ouzounian and made a recommendation to me to move forward with the lateral which I in turn forwarded to HR. An dated August 6, 2014 from the Grievant to Gulliver and Bartholomew stated: Hi Jonathan, From the CBA for Unit 2 dated July 1, 2009 to June 30, 2012 Article 14 Section 4. A. Transfers 2. A. Selection between employees seeking a transfer other than a substantial change in duties shall be made on the basis of seniority from among those employees considered by the appointing Authority to be qualified to perform the duties of the position. The date of the request for transfer will not override seniority. There is no change' to this article in the Successor Agreement dated July 1, 2013 through June 30, In my opinion moving from a MEM IV senior mechanic to MEM IV Foreman is a substantial change in duties. According to the Grievant, after he filed the grievance he received a call from St. Jean to come in for an interview for another available MEM IV position. The Grievant went to the interview. During the interview, the Grievant asked about the duties of the job and whether he would be reporting to St. Jean. According to the Grievant, he was told that he would be expected to work with equipment, would not be provided with a State issued cell phone, credit card, or car. As a result of being given this information the Grievant informed the interviewers that he was not interested in the position because it was not the job he applied for. The Grievant recalled that he informed the interview group that he had submitted a request for the foreman position and he was told by the interviewers that the jobs were the same. The Grievant testified that he knew what

5 5 benefits he had in his current position and that he would lose benefits if he accepted the position for which he was being interviewed for. He stated that he did not view the job he was being interviewed job as the same as the job he had requested in his transfer request. According to the Grievant, the Union and DOT were in the middle of a classification study. He noted that the process has been going on for approximately two years and the parties are only about half way through the process. According to the Grievant, an independent consultant had issued a report recommending that the foreman position become an MEM V but the DOT has not agreed to the consultant's recommendation. The Grievant agreed that arbitration is provided for if necessary at the end of the classification process. James Ouzounian (hereinafter "Ouzounian") became a DOT employee at the time of the merger of DOT and the Massachusetts Turnpike Authority in It was stipulated that Ouzounian had a seniority date of May 30, 1989 and the Grievant had a seniority date of April 3, At the time he became a DOT employee, Ouzounian became an MEM IV. He recalled that prior to the merger he was promoted to Senior Mechanic, the most senior mechanic in the shop, which meant that he took responsibility if the foreman was out. Ouzounian stated that there was no change in his duties or function when he became a DOT employee, and there was no change in his duties until he transferred from the Weston garage in July According to Ouzounian, while working in the Weston garage he used wrenches and diagnostic tools in his position as an HEM IV. He stated that he used tools almost all day to fix a wide range of equipment. If he needed assistance he could ask an HEM III to help. In addition, Ouzounian testified that at the Weston garage he took direction from the lead HEM IV. The evidence indicates that in April 2014 an employee named Malloy was in the "lead mechanic" position. Ouzounian stated that Molloy also had the ability to get help from a lower level mechanic. Based upon his observation, Ouzounian stated that Molloy used tools on rare occasion when another mechanic needed help. Ouzounian testified that he filed for a transfer to an MEM IV position in the Auburn garage on January 14, 2014 and was transferred in July He stated that he submitted his request because he had heard that an opening might occur. The fax date on the transfer document was April 29, He noted that he faxed his copy of the transfer request to Mountain in HR

6 6 because she informed him that she had not received his earlier request. During the same period Ouzounian recalled seeing a posting for an HEM TV position and called Mountain because he was concerned that it was the same job he had filed his transfer request for and therefore it should not have been posted. Ouzounian stated that he heard rumors that the Grievant was also seeking a transfer to the same job. However, when he asked Mountain if anyone else had applied she told him that no one had applied to her knowledge. Ouzounian recalled that he was interviewed for the position by Kevin St. Jean, Steve Roberts, Gulliver and another individual he did not know. He recalled that the only questions raised during the interview were those that he asked. He testified that he wanted to make sure that he was interviewing for Kevin St. Jean's position. He noted that he believed that St. Jean had the same duties as assigned Molloy in Weston. According to Ouzounian, at the interview he asked whether he would have a car, cell phone and credit card provided by the DOT and he was told that he would. Ouzounian was offered the job and accepted the position. With regard to the position he transferred into, Ouzounian stated that he works on vehicles less than one hour a day. He noted that when he worked in Weston he used his tool box but since the transfer he leaves his tool box home. He noted that he has been provided a credit card to purchase parts, and a DOT cell phone. He has also been provided a DOT truck which he uses for his commute to work from home. He noted that when he was working in Weston he used his personal vehicle. Jonathan Gulliver (hereinafter 'Gulliver") holds the position of District Highway Director for District 3. At the time of the hearing he had held the position for approximately three years. He is not a mechanic. As Director he oversees all aspects of the District. Gulliver testified that there are three main garages. The garages are located in Millbury, Auburn, and Weston. He stated that at each garage there are approximately 4-5 MEM's. According to Gulliver, the majority of mechanics are MEM Ills. The Auburn and Weston garages are the largest garages. There are two MEM IV's in Auburn and Weston and one in Millbury. According to Gulliver, if there is more than one MEM IV in the garage he decides, in consultation with others, which one of the two MEM IVs becomes the Chief Mechanic or Garage Foreman. With regard to the assignment of cell phones, credit cards, and State vehicles, Gulliver stated that such items are issued

7 7 based upon operational needs. He stated that they are "pretty liberal" issuing cell phones. He noted that incidental personal use of State cell phones is allowed. As for the issuance of credit cards, he stated that ultimately he makes the decision after consulting with headquarters. He noted that the credit card is used for miscellaneous work purchases related to the operation. With regard to the assignment of motor vehicles he stated that they are taken home to accommodate operational needs to allow for the employee to respond to snow and ice situations. However, he stated that not all MEM IV's have cell phones and that all those who run garages do not have cell phones. Gulliver testified that at the time Ouzounian was interviewed he knew that Ouzounian and the Grievant were on the transfer list. However, he stated that Human Resources told "us" about Ouzounian but not about the Grievant. He noted when he brought the fact that the Grievant was not being interviewed to the attention of Human Resources he was informed that Human Resources had not received the Grievant's transfer request and therefore only Ouzounian was being interviewed. Gulliver stated that when Ouzounian was in his prior HEM IV position he was the "number two guy" and did not have a phone, credit card or car. Gulliver testified that at the point the Grievant was interviewed Ouzounian was already in the position formerly held by St. Jean. Gulliver noted that the Grievant turned down the HEM IV position he was offered. He stated that the position that the Grievant interviewed for and turned down would have reported to Ouzounian. He noted that they would not hire an HEM IV who would not do repair work. Kevin St. Jean had held the position of Program Coordinator for approximately two years at the time of the hearing. St. Jean became a DOT employee at the time of the merger with the Turnpike Authority. When employed by the Turnpike Authority he held the position of senior mechanic and moved over to the DOT at the time of the merger as an HEM IV. In his current position he oversees the operation of three garages. St. Jean testified that after the merger there was no change in his duties from those duties he performed as a motor equipment foreman for the Turnpike Authority. He stated that as an MEN IV he did the evaluations of the other mechanics, and assigned work to the other mechanics. According to St. Jean, as an HEM IV he ran the Auburn facility and on a day-to-day basis scheduled vehicles and determined which mechanics would work on

8 8 specific vehicles. In addition, he set the priorities for fixing vehicles and he dealt directly with vendors. However, he did not schedule regular mechanical work for himself. He noted that he did repair work when he was employed as an HEM IV in Auburn when a mechanic needed assistance or all the mechanics were busy. According to St. Jean, when two HEM IVs are assigned to a garage only one of the HEM IVs assigns work. St. Jean was on the interview committee when Ouzounian was interviewed. St. Jean recalled that there was discussion among those on the committee about a second lateral transfer candidate. He recalled that Gulliver called Human Resources about a second lateral candidate. However, only Ouzounian was interviewed. At the end of the interview process Ouzounian was recommended for the position. Gulliver testified that when Ouzounian was in his prior MEM IV position he was the "number two guy" and did not have a phone, credit card or car. St. Jean testified that the Grievant was interviewed months later for another HEM IV position. St. Jean was also a member of that interview committee. St. Jean recalled that the Grievant asked if the person in the position would be assigned a State vehicle, phone and credit card and he was told that it most likely did not. He recalled that a heated conversation took place between the Grievant and the interviewers, and the Grievant informed the committee that he was not interested in the position. St. Jean agreed that when he was the in the HEM TV position he had a vehicle, credit card, and cell phone issued by the DOT. He stated that he was allowed to use the vehicle for commuting but not for personal use. He also stated that he was allowed to use the credit card to purchase parts etc. that had a cost of under $500. Relevant Contract Provisions Article 14 -Seniority, Transfers, Promotions, Reassignments, Filling of Vacancies, and New Positions Section 4. Transfers and Reassignments A. Transfers 1. For the purpose of this section a transfer shall be defined as a a change from one work unit or work facility to another work unit

9 9 or work facility in the same Department/Agency without any change in classification, or b. a substantial change in duties without a change of work unit or facility as long as the requirements for appointment are not substantially different. 2. a. An employee seeking a transfer to a different work unit shall submit a written transfer request to his/her Appointing Authority or designee prior to posting. b. An employee seeking a transfer to a different work facility under the jurisdiction of another Appointing Authority shall submit a written transfer request to that Appointing Authority or designee. 3. a. Selection between employees seeking a transfer other than a substantial change in duties shall be made on the basis of seniority from among those employees considered by the Appointing Authority to be able to adequately perform the duties of the position. b. An employee seeking a transfer involving a substantial change in duties shall submit a written transfer request to his/her Appointing Authority or designee and selection shall be made on the basis of seniority from among those employees considered by the Appointing Authority to be qualified to perform the duties of the position. 4. Requests for transfers shall be kept on file and shall be considered and, where appropriate, implemented by the Appointing

10 10 Positions of Parties Union Authority or designee prior to the filling of any vacancy. 5. An employee who moves from one Appointing Authority within a Department/Agency to another facility under a different Appointing Authority within the same Department/Agency without a change in classification or job title and without an interruption of continuous service shall retain all seniority for the purpose of this Agreement and shall not otherwise be subject to a probationary period. The Union argues that the contract "mandates that lateral transfers shall be granted based solely on seniority among qualified employees seeking such transfer." It contends that Art. 14, Section 4(A) (3) "specifically provides that employees seeking a transfer shall submit a written request and that the transfer will be granted 'on the basis of seniority among those employees considered by the Appointing Authority to be qualified to perform the duties of the position'." With regard to the Grievant's qualification, the Union argues that the Grievant was qualified to perform the duties. It notes that the Employer did not suggest that he was not qualified and "the fact that he holds the exact same job in Chicopee underscores this conclusion." Moreover, it argues that Fimognari submitted a written request for the transfer and the "interviewers and decision-makers were well aware of his written request." Finally, it notes that there is no dispute that the Grievant is more senior than Ouzounian. Therefore, it contends that Fimognari was "entitled to the position of garage foreman in Auburn that he specifically requested but that was granted to a more junior employee." As for the Employer's argument that the two open MEM-IV positions in Auburn are the same and that it therefore satisfied its contractual obligation by offering one of them to Fimognari, the Union argues that Ouzounian was offered the position in Auburn "months before the other position was even opened, which should be enough to establish the contract violation as having occurred on the date that Mr. Ouzounian started working as the

11 11 garage foreman in Auburn while Mr. Fimognari continued to work in Chicopee." Further, it argues that the evidence does not support the Employer's claim that "all MEM-IV positions are the same." In support of its position, the Union argues that the Grievant, St. Jean and Ouzounian agreed that the foreman position differs from the senior mechanic position. The Union contends that the "foremen on the whole do not perform repair functions but rather supervise the mechanics and perform administrative tasks relative to the running of the garage." Further, it argues that "there are significant benefits to having the foreman position, including the assignment of a state-issued vehicle and cell phone." With regard to the Employer's reliance on the Form 30s to demonstrate the positions are the same, the Union argues that St. Jean testified that the Form 30 did not accurately reflect his position and that the positions of garage foreman and senior mechanic differ. It argues that Ouzounian testified that he continues to perform the administrative and supervisory functions that St. Jean performed in that job and that he does not perform the mechanic work that Dahlstrom and his successor perform in the role of senior mechanic and that are listed on the Form 30s. The Union contends that the District 3 Highway Director agreed that the "chief mechanic" has supervisory and administrative functions that are different from the senior mechanics. It argues that the fact that the state classification has "no relation to rational fact" is shown by the fact that the Statewide Fleet Coordinator is also classified as an MEM IV. With regard to remedy, the Union notes that since the Grievant has retired state service "the Union does not seek to have the Employer vacate the transfer of Mr. Ouzounian; rather, the Union requests that the Arbitrator order that the Employer cease and desist from such contract violations and order that Mr. Fimognari be made whole for any lost overtime opportunities he suffered as a result of the Employer's contract violation." It suggests that such calculation be "calculated by comparing the number of hours of overtime earned by Mr. Ouzounian from the 1 period of his transfer until the date of Mr. Fimognari's retirement less the number of hours of overtime earned by Mr. Fimognari." The Union asks that the Arbitrator retain jurisdiction for a period of 60 days beyond the issuance of his award. Employer

12 12 The Employer argues that "the authority to decide who will run the garages in their districts lies with the MassDOT District Highway Directors and not the employees or the Union, and the fact that Mr. Fimognari ran a garage at the MTA has nothing to do with that decision, and does not create in Mr. Fimognari some sort of entitlement to exercise that authority." It notes that in the instant case Gulliver "decided he wanted Mr. Ouzounian to run the District's garage in Auburn" but "could have assigned Fimognari to run the garage...." It notes that the Grievant "could have had an MEM IV position in the Auburn garage if he wanted it." The Employer does not dispute that the Grievant was qualified for the position. The Employer suggests that "Mr. Fimognari never really wanted this job, but he and the Union want the rights to the job of running the MassDOT garages." The Employer argues that the Grievant "was not going to accept a job in which he had to work with the tools." Although the Employer agrees that that the Grievant "had not been required to do that at the MTA, and he had apparently not been required to do that at the MassDOT since he came over from the MTA...," it notes that the "Specification Classification," and the Form 30 provide that an "MEM IV will inspect, troubleshoot, and repair motor vehicles and equipment." Moreover, it contends that under the Form 30, "MEM IVs exercise supervision over employees within the garage in lower job titles and also work with the tools to perform repairs on MassDOT motor equipment." The Employer notes that "The Personnel Administrator assigned the MEM IV title at the time of the abolition of the MTA and the creation of MassDOT, pursuant to the Transportation Reform Act." Further, it argues that the Employer negotiated a "comprehensive reclassification scheme through which every job would be reviewed." It contends that "the Union made proposals to MassDOT to reclassify the positions of the Garage Foremen who had been Garage Foremen at the MTA to a new title, and to assign the incumbents in the new title the function of operating MassDOT garages." However, it notes that the Employer did not accept the Union's proposal. The Employer argues that the "issue may be submitted to an arbitrator after the current classification process is finalized," and that the Union is attempting to "circumvent the statute and the parties' agreement on the classification process" through the instant arbitration. With regard to the Union's claim that the assignment of a MassDOT motor vehicle, credit card and cell phone make these jobs different despite the common MEM IV title, the Employer

13 13 argues that "these incidents of the MEN IVs who are running the garages, are for the convenience and benefit of MassDOT and not enhanced compensation." It argues that "the only benefit to the employee as a practical matter is the ability to use the motor vehicle to commute to work from home." With regard to the Union's suggested remedy, the Employer "urges the arbitrator to refrain from ordering a remedy unless and until the parties are able to explore the ramifications of the duty to mitigate and the question of the Grievants right to any overtime in light of his own record of accepting overtime opportunities." Discussion 2 The evidence indicates that the Grievant made a request for a lateral transfer via to Mountain on April 1, The stated: Please accept this as my request for a lateral transfer to the District 3 Auburn M-5 garage. In a second dated April 2, 2014 to District Director Gulliver and Mountain the Grievant stated: To All Please accept this as my lateral transfer request to the District 3 Auburn garage Foreman MEM IV position. Gulliver testified that at the time that Ouzounian was interviewed he knew that the Grievant had requested a lateral transfer. It is clear from the evidence that the second requesting a transfer to St. Jean's position sent by the Grievant included a copy to Gulliver. Gulliver did not deny that he received a copy. In fact, he stated at hearing that he brought it to the attention of human resources that the Grievant was not being interviewed and was told that it had not received the Grievant's transfer request. St. Jean confirmed that when Ouzounian was interviewed there was discussion about the Grievant having made a request. It was stipulated that the Grievant had more seniority than Ouzounian. As per Article 14, Section 4 A(2) (b) the Grievant 2 The Union and Employer could not agree upon an issue. Although they could not agree, the essence of both submissions was the same. Upon review of all the facts and the evidence presented, I am persuaded that the issue presented by the Union at hearing appropriately reflects the grievance filed.

14 14 made a written transfer request. Under Article 14, Section A(3)(a) "Selection between employees seeking a transfer other than a substantial change in duties 3 shall be made on the basis of seniority from among those employees considered by the Appointing Authority to be able to adequately perform the duties of the position." In this case, the Employer does not suggest that the Grievant was not qualified for the position. In fact, the Grievant was performing the MEM TV duties at the time he applied and was already performing the duties that Ouzounian described as constituting the position that he was awarded. Thus, I am persuaded that the Grievant filed his request for a lateral transfer in a timely manner, the Employer knew or should have known of the request at the time Ouzounian was interviewed, and the Grievant met all the criteria for being awarded the position under Article Therefore, based upon all the evidence and the above analysis, I conclude that the Employer violated Article 14, Section 4 when it failed to offer the Grievant a lateral transfer to the District 3 MEM IV position vacated by Kevin St. Jean and awarded to Ouzounian. In light of the above stated conclusions, the Grievant was entitled to be interviewed for the MEM IV position that was awarded to Ouzounian, and under the criteria set forth in 3 It is clear from the evidence that the Grievant was seeking a transfer to a different facility but not to a position with different job duties. He was not seeking a transfer to a position that would have involved a "substantial change in duties," when compared to his duties in Chicopee. In this regard, it should be noted that Ouzounian also wanted to be certain that the position he was interviewing for was the position previously held by St. Jean. Ouzounian testified that he asked questions during his interview to be certain that it was St. Jean's position and that he would be performing the duties that St. Jean had performed. In light of the fact that the Grievant was already performing the duties that Ouzounian was assigned upon his transfer it is clear that the Grievant was also seeking the position awarded to Ouzounian and not a position with less oversight responsibility than the position he already held. 4 Gulliver testified that it was suggested to him by HR that Ouzounian was entitled to the position because he filed his transfer request before the Grievant. There is nothing in the contract to support such a conclusion.

15 15 Article 14 5 should have been awarded the position instead of Ouzounian. 6 The Employer is directed to follow the terms of Article 14 in the processing of lateral transfers. Further, the Grievant shall be made whole for any lost overtime opportunities he suffered as a result of not being appointed to the position awarded to Ouzounian. Such overtime shall be calculated by comparing the number of hours of overtime earned by Ouzounian from the period of his transfer until the date of the Grievant's retirement less the number of hours of overtime earned by the Grievant during the same period. The Arbitrator shall retain jurisdiction for a period of 60 days beyond the issuance of this award. Award7 1. The Employer violated Article 14, of the Collective Bargaining Agreement when it failed to transfer the Grievant to the MEM IV position vacated by Kevin St. Jean. 2. The Employer is directed to follow the terms of Article 14 in the processing of lateral transfer requests. 3. The Grievant shall be made be made whole for any lost overtime opportunities he suffered as a result of not being appointed to the position awarded to Ouzounian. Such overtime shall be calculated by comparing the number of hours of overtime earned by Ouzounian from the period of 5 The Employer argues that under the Management Rights clause it had a right to determine the duties of the position awarded to Ouzounian and the second position for which the Grievant was offered an interview. Even assuming that the clause applies under the facts of this case, it is well established that a "standard of reasonableness" is applied by arbitrators to the exercise of a management rights clause "as to ensure that such an action is not 'arbitrary and capricious' in nature." 2006 AAA LEXIS 700 (2006, Townley). Under the facts of this case, Article 14 is clear and the Management Rights clause did not provide the Employer with a basis upon which to deviate from the standard set forth. At hearing, I requested that the parties address the question of whether the Grievant had any obligation to mitigate damages by completing the interview process and, if offered, accepting the position for which he attended the interview. Based upon the evidence presented, I am persuaded that the position that the Grievant actually interviewed for would have reduced his responsibilities with regard to the evaluation and oversight of mechanics working at the garage, and would have significantly reduced, although not eliminated, his working with the tools as a mechanic. In light of these facts, the Grievant did not have had an obligation to mitigate by accepting the position. 7 In light of the retirement of the Grievant, the Union is not requesting that the Grievant be moved into the position vacated by St. Jean.

16 16 his transfer until the date of the Grievant's retirement less the number of hours of overtime earned by the Grievant during the same period. 4. The Arbitrator shall retain jurisdiction for a period of 60 days beyond the issuance of his award. January 11, 2016 Harvey M. Shrage Arbitrator