LABOR ARBITRATION DECISION AND AWARD UNITED STEEL WORKERS, LOCAL 9360 AND MASSACHUSETTS WATER RESOURCES AUTHORITY

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1 LABOR ARBITRATION DECISION AND AWARD In the Matter of the Arbitration between: UNITED STEEL WORKERS, LOCAL 9360 AND MASSACHUSETTS WATER RESOURCES AUTHORITY Voluntary Labor Tribunal Grievant: Maria LeBel and David Hennis- overtime (Arbitrability) AWARD OF ARBITRATOR I, THE UNDERSIGNED ARBITRATOR, having duly heard the proofs and allegations of the parties, AWARD as follows: The Union s grievances dated December 30, 2013, presented by the Union s Demand for Arbitration, are substantively arbitrable and may proceed to a hearing on the merits. October 9, 2015 (Date of Issue) Sherrie Rose Talmadge, Esq., Arbitrator 1

2 VOLUNTARY LABOR ARBITRATION TRIBUNAL In the Matter of Arbitration ) ) Between UNITED STEELWORKERS, ) Local 9360 ) ) And ) ) MASSACHUSETTS WATER ) RESOURCES AUTHORITY ) ) Before: Arbitrator Sherrie Rose Talmadge, Esq. Appearances: ) Grievants: LeBel and Hennis (0vertime) ) (Arbitrability) ) Date of Issue: October 9, 2015 On Behalf of the Union: Alfred Gordon O Connell, Esq. Pyle Rome Ehrenberg, PC On Behalf of the Employer: Kathleen M. Chaloux, Esq. Senior Staff Counsel HEARING DATE: June 4, 2015 HEARING LOCATION: MWRA Offices, 100 First Avenue, Boston, MA BRIEFS RECEIVED: September 2, 2015 INTRODUCTION The MWRA sought to dismiss the demand for arbitration on the grounds that it is barred by the parties September 6, 2012, Stipulated Agreement and the remedy sought violates MWRA s management rights set forth in Article 23, Section 1 of the parties Collective Bargaining Agreement and the MWRA Enabling Act, c. 372 of the Acts of 1984, Section 7(c). The Union contended that the grievances are substantively arbitrable and are neither waived by the parties September 2012 Stipulated Agreement, nor preempted by the MWRA enabling statute, nor limited by the contractual management rights clause. Thus, the parties should be entitled to present the merits of these matters. 2

3 STIPULATED ISSUE Are the Union s grievances dated December 30, 2013, presented by the Union s Demand for Arbitration in this case, substantively arbitrable? BACKGROUND The United Steelworkers, Local 9360 (USW or Unit 6) seeks to arbitrate grievances field by David Hennis and Maria LeBel (the Grievants) asserting that the Massachusetts Water Resources Authority (MWRA) violated Article 6, Section 2(I) of the parties Collective Bargaining Agreement (Agreement) by denying the Grievants overtime opportunities, and as a remedy seeks to be made whole and to recoup any financial losses that have occurred and to be given the right of refusal for any overtime opportunities. The MWRA moved to dismiss the Union s demand for arbitration on the grounds that it was not substantively arbitrable. At the hearing on June 4, 2015, the parties agreed to bifurcate the hearing. A hearing was held on the MWRA s Motion to Dismiss. RELEVANT COLLECTIVE BARGAINING PROVISIONS Article 6, Overtime Section 2(I) If the Authority decides that overtime is necessary or appropriate, overtime shall be distributed as equitably and impartially as practicable among persons in each work location who ordinarily perform such related work in the normal course of their workweek. Supervisors are to attempt to distribute overtime first to employees in the same classification, and second to any other employees with necessary licenses or, if no licenses are required, other employees fully capable of performing the work. Article 23 Managerial Rights/Productivity Section 1. Except as otherwise limited by an express provision of this Agreement, the Authority shall have the right to exercise complete control and discretion over its organization and technology including but not limited to the determination of the standard of services to be provided and standards of productivity and performance of its employee; establish and/or revise personnel evaluation programs; the determination of the methods, means and personnel by which its operations are to be conducted; the determination of the content of job classifications; the appointment, promotion, assignment, direction and transfer of personnel; the suspension, demotion, discharge or any other appropriate action against its employees; the relief form duty of its employees because of lack of work or for other legitimate reasons; the establishment of reasonable work rules; and the taking of all necessary actions to carry out its mission in emergencies. 3

4 MWRA Enabling Act, c. 372 of the Acts of 1984, Section 7(c) No collective bargaining agreement entered in to by the Authority shall limit inherent Management Rights which shall include, without limiting the generality of the foregoing, the following: (i) employment, assignment and promotion of employees and the determination of standards therefor, (iii) determination of the Authority s level of service, levels of staffing, and the methods, means and personnel for performing operations FINDINGS OF FACT 1 The MWRA, created by Chapter 372 of the Acts of 1984, is an independent public authority responsible for the provision of wholesale water and sewer services to certain communities within the Commonwealth of Massachusetts. The MWRA and USW are parties to a collective bargaining agreement pursuant to the MWRA Enabling Act. The MWRA has five separate bargaining units each is covered by a separate collective bargaining agreement. The USW, Local 9360 represents a unit of clerical support personnel. The USW, Local 9358 (USW, Local 9358 or Unit 1) has the same provision, Article 24, Section 1 of the CBA with the MWRA. Karen Gay-Valente, Director of Human Resources since 2014, and responsible for Labor Relations in various capacities since 2003, negotiated the Stipulated Agreement on behalf of the MWRA. At the request of Susan Brazil, President of USW, Local 9358, Gay-Valente met with her and Robert Roussell, President of USW, Local 9360 to discuss the possibility of transferring titles between the bargaining units. After meeting several times, the parties reached agreement to transfer certain positions. The only subjects of discussion were the impacts on the employees unit placement, salary levels and their longevity payments. There was no discussion of overtime assignments or the job descriptions. Gay-Valente testified that although the change in unit placement provided no benefit to the MWRA, she agreed to make the trades requested by the Unions. Gay-Valente requested a release provision which was included. On September 6, 2012, MWRA and USW, Local 9358 and Local 9360 executed the Stipulated Agreement memorializing their agreement to exchange certain titles that included, the transfer of the Security Monitor title and Sr. Operator/ Administration title from Unit 1 to Unit 6. The Stipulated Agreement provides: 1 The parties had an opportunity to engage in direct and cross-examination with the sworn witnesses and to present relevant and material documentary evidence. Following the close of the hearing, post-hearing briefs were received on or by September 2,

5 The Unit 1, Grade 22 Sr. Operation/ Administrator title will be removed from Unit 1 and placed in Unit 6, Grade 9, Maria LeBel, the current incumbent of Sr. Operation/ Administrator, Unit 1, Grade 22, will be placed in Unit 6, Grade 9, Step 23, salary ($72,588.60), effective, December 29, The Unit 1, Grade 22, Security Monitor title will be removed from Unit 1 and placed in Unit 6, Grade 9. The current incumbent David Hennis, will be placed into Unit 6, Grade 9, Step 23 salary ($72,588.60), effective, December 29, The Stipulated Agreement, paragraph 8, states: In consideration of MWRA s actions, USW Local 9358, and USW Local 9360, release the MWRA from any and all grievances, appeals to arbitration, of any kind concerning the actions set forth in the Agreement under any contract, policy, federal or state statute, common law or regulation including but not limited to, the collective bargaining agreements between the MWRA and USW 9358 and between the MWRA and USW Local 9360 and c. 150E of the General Laws. Subsequently, a dispute arose between the bargaining units over the overtime assignment to provide coverage when the Computer Operator II, a Unit I title was out. Previously, the Grievants had been assigned this overtime work before their transfer to Unit 6. Despite attempts to resolve the overtime dispute, no resolution was achieved. On December 30, 2013, Unit 6 filed separate grievances on behalf of LeBel and Hennis, claiming MWRA violated Article 6, Section 2(I) of the parties Agreement by denying them overtime assignments they previously worked as members of Unit 1, and assigning the work to Unit 1 Help Desk Coordinators, who, with significantly less or no experience are given the overtime, and seek as remedy to be made whole and to recoup any financial losses that have occurred and first right of refusal for any future overtime opportunities. The MWRA asserted that since the overtime was the result of the absence of a Unit I employee, it must be first offered to employees in Unit 1. The Union submitted this matter to arbitration resulting in the present case. POSITIONS OF THE PARTIES MWRA POSITION The Authority argued that the arbitrator lacked substantive jurisdiction over this grievance. The Union cannot proceed to arbitration because it is barred by the plain language and the intent of the parties stipulated agreement. This is a dispute concerning the transfer of the positions between the two bargaining units, and the 5

6 Union s right to bring this grievance is exactly what the Union waived in the broad release provided in paragraph 8 of the Stipulated Agreement, in exchange for MWRA s Agreement to make the requested transfers, MWRA is entitled to the benefit of the bargain. The assignment of employees is MWRA s exclusive management right under both Massachusetts Law and the parties contract and cannot be overridden by a contract provision or reviewed by an arbitrator. The statute permitting collective bargaining between the MWRA and unions representing its employees affirmatively excludes assignments from bargaining. (Statute 1984, c. 372, Section 7(c)). This statutory restriction controls the definition of the MWRA s management rights, even in light of the broad obligation to bargain imposed on public employers generally by M.G.L. Chapter 150E. Section 7(d) of Chapter 150E does not list the MWRA Enabling Act, Act of 1984, Chapter 372 as being overridden by Chapter 150E. No contractual provision can override such a management right and make the exercise of the right subject to arbitration. Article 23, Section 1 of the contract memorializes the parties recognition of the reach of management rights providing, The Authority s right to exercise complete control and discretion over its organization shall include the assignment of personnel In this case, the Union s claim is that the MWRA was contractually obligated to assign Unit 6 employees to perform data backup, which is the job of a Computer Operator II working the second shift. These hours of work would be in addition to the grievants regularly scheduled shifts. Pursuant to the MWRA Enabling Act s explicit exclusion of assignments from the areas subject to collective bargaining and as recognized by the parties and previously enforced by Arbitrator Marc Greenbaum (AFSCME and MWRA, AAA (2008)) this demand for arbitration must be dismissed. Subsequently, the Superior Court confirmed Greenbaum s award. (AFSCME v. MWRA, Superior Court CA No E (November 2, 2009). Furthermore, any claims of a procedural nature must fail because the MWRA has an explicit statutory right to make assignments and there is no remedy that could be ordered that would not limit its right. Chapter 150E, Section 7(d) does not make that right subject to collective bargaining. Even if the Union is not barred from proceeding to arbitration by the release contained in the Stipulated Agreement, the arbitrator cannot fashion a remedy that would have the effect of forcing the MWRA to assign the Sr. Operator/ Administrator or Security Monitor to perform data backup on the second shift. 6

7 Under these circumstances, the Union s demand for arbitration should be dismissed in its entirety. UNION S POSITION The Union asserted that the grievance is substantively arbitrable. The grievances are neither waived by the parties September 2012 Stipulated Agreement, nor preempted by the MWRA enabling statute, nor limited by the contractual management rights clause. The MWRA relies on a grievance waiver from an agreement to move certain employees to different bargaining units as providing an all-out bar to any grievance relating to the employees covered by that agreement. The MWRA s argument ignores the fact that the waiver covers only matters concerning the actions set forth in th[at] agreement and not every possible dispute relating to the affected employees. The dispute here does not concern the bargaining unit placement or grade/step assignments set forth in the Stipulated Agreement, so that agreement does not amount to a clear and unmistakable waiver of the right to grieve overtime assignments. The MWRA argued that the enabling statute, which grants it the standard public sector management rights to make assignments and determine the personnel to perform operations, nullifies the parties contractual agreement that overtime should be fairly and impartially distributed. The MWRA argues well beyond what the enabling statute says or was intended to provide inasmuch as the evidence in this matter demonstrates that the MWRA has already assigned personnel to their positions and determined which personnel can perform the work at issue. Here, the MWRA is bound by its contractual agreement to assign overtime work fairly to those who normally perform that work. Finally, the MWRA contends that the management rights clause, which give management the right to assign work, somehow nullifies the fair distribution of overtime language even though the management rights clause is limited on its face by other express provisions of the CBA. The overtime article is such an express provision, and the MWRA s final argument should not be found persuasive. For these reasons, the arbitrator should find this matter substantively arbitrable and proceed to the merits of the dispute. 7

8 DISCUSSION At issue is whether the underlying grievance is substantively arbitrable. The MWRA has not met its burden of proving that the grievances are not substantively arbitrable. Therefore, I find that the grievances are substantively arbitrable and can proceed to a hearing on the merits. It is well established that where the contract contains an arbitration clause, there is a presumption of arbitrability in the sense that [a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage. (Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, , 46 LRRM 2416, 34 LA 561 (1960). See also AT&T Technologies v. Communications Workers, 475 U.S. 643, (1986)). The MWRA asserted that the Stipulated Agreement between the parties waived the subject matter of these grievances. As in bargaining matters, to assert a contractual waiver is an affirmative defense in which the employer has the burden of proving that the contract clearly, unequivocally and specifically authorizes its actions. City of Boston v. Labor Relations Commission, 48 Mass. App. Ct. 169, 174 (1999), citing Commonwealth of Massachusetts, 18 MLC 1403, 1405 (1992); School Committee of Newton v. LRC, 388 Mass at 569 waiver must be shown clearly, unmistakably and unequivocally. The MWRA has not met its burden of proving with positive assurance that the parties intended this matter to be non-arbitrable. The waiver in the Stipulated Agreement is narrow and waives those claims concerning the actions set forth in the Agreement. The Agreement, which addressed unit placement, longevity and salaries of certain positions, did not address overtime distribution. Moreover, the issue of overtime opportunities was not discussed during those negotiations. Thus, I do not find that that the Union clearly, unmistakably and unequivocally waived its right to grieve and arbitrate the overtime distribution claims in the present case. Although the Enabling Act establishing the MWRA contains a strong management rights provision that reserves to management the right to employ, assign and promote employees and the right to determine the methods, means and personnel to perform operations, it does not nullify the parties contractual agreement that overtime should be fairly and impartially distributed. In this instance the MWRA had already assigned the Grievants to their positions and determined that they can perform the work at issue. The MWRA, having determined that the Grievants are qualified to perform the 8

9 work, has permitted them to perform it on an overtime basis after the other employees have refused the overtime opportunities. Thus, the issue of whether the overtime opportunities have been fairly distributed does not appear to interfere with the right of the MWRA to assign employees. Furthermore, there is no violation of the statutory managerial right to determine the methods, means and personnel to perform operations. The MWRA determined that the Grievant may perform the operations at issue during their regular workday and on an overtime basis after refusal by certain Unit 1 employees. The grievances, which focus on who gets the first choice to work the overtime opportunities at issue, do not interfere with the MWRA s right to determine the personnel to perform operations. Moreover, the management rights clause of the collective bargaining does not bar these grievances concerning overtime distribution. Article 23, Section 1 of the contract memorializes the management rights provision stating, The Authority s right to exercise complete control and discretion over its organization shall include the determination of the methods, means and personnel by which its operation are to be conducted assignment of personnel Significantly, Section 1 provides that the only contractual limitation of these rights is where there is an express provision in the Agreement. There is an express provision in Article 6, Section 2(I), which provides that if the Authority decides that overtime is necessary or appropriate, overtime shall be distributed as equitably and impartially as practicable among persons in each work location who ordinarily perform such related work in the normal course of their workweek. In this case the express provision of Article 6, Section 2(I), which addresses the equitable and impartial distribution of overtime, is a limitation on the Authority s management rights provision. Accordingly, the grievances are substantively arbitrable. AWARD The Union s grievances dated December 30, 2013, presented by the Union s Demand for Arbitration, are substantively arbitrable and may proceed to a hearing on the merits. Respectfully submitted by: Sherrie Rose Talmadge, Arbitrator 9