HomeMy WebLinkAbout12 Grievence of George Caballero JOHN P. DiFALCO
ARBITRATOR
1136 EAST STUART STREET,SUITE 4102
FORT COLLINS,COLORADO 80525-1194
TELEPHONE(970)224.9085•FAX(970)224-9086
May 24, 2001
Steven C. Gross, Esq. Tom Dalzell, Esq.
Truckee-Donner P.U.D. IBEW Local 1245
P.O. Box 309 P.O. Box 4790
Truckee, CA 96160 Walnut Creek, CA 94596
Re: Truckee Donner Public Utility District and IBEW Local 1245
Grievance of George Caballero
FMCS No.: 01-04431
To The Parties:
Enclosed is my decision in the referenced case and the statement for arbitration
services. The cooperation of both parties in the Arbitration of this matter is sincerely
appreciated.
V on ,
L John P. DiF o
JPD\ak
Enclosures
IN THE MATTER OF AN ARBITRATION
BETWEEN
TRUCKEE-DONNER PUBLIC ) AWARD OF THE ARBITRATOR
UTILITY DISTRICT, )
District, ) RE: Grievance of George
} Caballero
FMCS No.: 01-04431
and )
ISSUES: Timeliness of the Grievance;
IBEW LOCAL 1245, ) Applicability of Increase in
} Administrative Leave to
Union. ) Hourly Employees
DATE: May 22, 2001
ARBITRATOR: John P. DiFalco
APPEARANCES:
FOR THE COMPANY:
Steven C. Gross, Esq.
Truckee-Donner Public Utility District
P.O. Box 309
Truckee, CA 96160
FOR THE UNION:
Tom Dalzell, Esq.
IBEW Local 1245
P.O. Box 4790
Walnut Creek, CA 94596
This matter came before Arbitrator John P. DiFalco, selected by the parties to
render a decision on the issues in dispute. The parties submitted a joint statement of facts
and written briefs in lieu of a hearing. Truckee-Donner Public Utility District, (hereinafter
referred to as the "District") was represented by Steven C. Gross, Attorney at Law and
IBEW, Local 1245, (hereinafter referred to as the "Union") was represented by Tom
Dalzeil, Attorney at Law.
ISSUES
Was the grievance timely filed in accord with the applicable provisions of the
parties' Memorandum of Understanding?
Is the increase in administrative leave to exempt management personnel applicable
to all bargaining unit employees pursuant to Section 10.2 of the parties' Memorandum of
Understanding, which requires "enhancements or improvements" to vacation leave be
granted to all District employees?
STATEMENT OF THE CASE
In this matter the parties waived an on site hearing and jointly submitted a statement
of facts and exhibits for the Arbitrator's consideration in determining both the arbitrability
and, if appropriate, the merits of the grievance. In 1996, the Truckee-Donner Public
Utility District entered into a new Memorandum of Understanding ("MOU") with Local
1245 of the International Brotherhood of Electrical Workers. Included in the provisions
of the MOU were a new vacation schedule applicable to all District employees, including
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both exempt management personnel and hourly employees represented by the Union. The
MOU had the effect of reducing the annual allotment of vacation leave for Union
employees of the District. Included in the MOU is a provision that reads that the language
of the vacation schedule provision is "contingent on District-wide application" and that
"Any enhancements or improvements thereto apply District wide." Further, the contingent
provision and its application District wide was specified to apply solely to Title 10.2 of the
MOU (the vacation allotment provisions).
The provision in dispute remained unchanged from 1996 through the current
agreement, which expires in December of 2002. Prior to the signing of the MOU, exempt
management personnel received, in addition to vacation leave, three days of
"administrative leave" annually. The benefit was set forth in a provision of the District's
Code of Policies. The administrative leave was therefore an existing benefit at the time
the MOU was signed. According to the relevant Code of Policies, Section 4.24.020.6,
which describes working terms and conditions for exempt employees, unused
administrative leave does not carry over from year to year and must be scheduled by
mutual agreement of the District's General Manager and the affected employees.
In August of 2000, the District's Board of Directors decided to give exempt
management personnel another five days of administrative leave, bringing the total to eight
days annually. The provision of this benefit to exempt management employees is the first
issue of contention, in that the Union argues that the increase in administrative leave
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should also be applied to hourly employees, pursuant to the clause of Section 10.2 which
requires "enhancements or improvements" to "this provision" which deals with vacation
leave to be granted to all District employees. Essentially, the Union is saying that the
administrative leave enhancements should be, pursuant to Section 10.2, made applicable
to all craft as well as exempt employees.
A District employee who functions as a Union shop steward filed a grievance on
September 21, 2000, making the claim that the enhancements or improvements to the
administrative leave given to exempt management personnel should also, by operation of
the MOU Section 10.2, be made applicable to all craft employees as well. The grievance
was denied by the District's General Manager on October 4, 2000, and was in turn
appealed to the District's Board of Governors who denied the Union's appeal in a letter
dated October 31, 2000. The Union then opted for arbitration, pursuant to Section 14.4
of the MOU.
The District has interposed an affirmative defense to the grievance regarding its
arbitrability. They claim that the grievance was not timely filed and cite the circumstances
that on August 2, 2000, the District's Board of Directors took action to implement the
expansion of administrative leave. The fact was made known to employees of the District
on August 3, 2000, and the Union was aware of the change in benefits. On August 10,
2000, Counsel for the Union sent the District's General Manager a letter referencing the
increased administrative leave and inquiring whether the leave would be extended to all
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District employees, pursuant to Section 10.2 of the MOU. This letter was not responded
to by the District. The District claims that the grievance filed on September 21, 2000, is
untimely under the applicable provisions of the MOU.
The matter proceeded through the applicable steps of the grievance procedure and
was certified for arbitration. The parties, rather than conducting an evidentiary hearing,
in that the facts were generally not in dispute, submitted a joint finding of fact and separate
argumentative briefs to the Arbitrator. The joint submission of facts was received on or
about March 5, 2001, and the parties' final briefs were received on or about March 19,
2001, at which time the record in the matter was closed.
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RELEVANT CONTRACT PROVISIONS
Memorandum of Understanding
between
Truckee Donner Public Utility District
and
International Brotherhood
of Electrical Workers
Local 1245
January 1, 1996 through December 31, 1999
TITLE 10
VACATION
10.1 Eligibility: Full-time regular employees who have satisfactorily completed
six (6) months of continuous service will accrue vacation leave from the
most recent date of hire.
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10.2 Rates of Accrual:
NUMBER OF DAYS
RATES OF ACCRUAL PER YEAR
(a) For the first five years of continuous service 10
(b) After completing five years of continuous service 15
(c) After completing ten years of continuous service 20
(d) After completing 21 years of continuous service 21
(e) After completing 22 years of continuous service 22
(f) After completing 23 years of continuous service 23
(g) After completing 24 years of continuous service 24
(h) After completing 25 years of continuous service 25
Note: The above vacation schedule shall apply to all employees hired after January 1,
1995. With respect to all other employees, the implementation of the above schedule shall
be in accordance with the Vacation Implementation Schedule attached to this agreement
and entitled Exhibit B. If it is determined that an error was made in preparation of the
Vacation Implementation Schedule for any employee, the parties of this agreement agree
to modify the Schedule appropriately.
This provision is contingent on District-wide application. Any enhancements or
improvements shall apply District wide. This application shall pertain solely to Title 10.2
and shall not be precedent setting.
10.3 Consecutive Days: All vacations will be taken on consecutive days, in no
less than weekly increments, unless otherwise agreed to by the District and
the employee.
10.4 Termination: Any employee who leaves District employment before taking
the employee's regular scheduled vacation will be entitled to receive full pay
for any accrued vacation.
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10.5 Vacation Scheduling: Vacation leave may be scheduled by mutual
agreement between management and employees. A sign-up sheet shall be
posted in the District offices during the entire month of April of each year.
During the month of April employees may designate their choice of vacation
periods for the twelve-month period beginning on May 1 of each year.
Whenever possible, the conflicting or overlapping employee vacations which
are listed on the sign-up sheet during the month of April shall be resolved on
the basis of seniority. If, during the month of April, any employees fail to
designate their choice of vacation time, then the scheduling of their vacation
shall be based, not on seniority, but on a first-come-first-served basis.
10.6 Carryover: An employee may forego their vacation for two years and carry
it over to the following third year provided the District gives its written
approval in advance. In no event will an employee defer all or any portion
of an annual vacation leave longer than two years unless the employee is
unable to take such vacation by reason of industrial injury.
10.7 Part-time Regular Employees: (Deleted 1991)
10.8 Retirement Bonus: (Moved to Title 19.2[e][3])
TITLE 14
GRIEVANCE PROCEDURE
14.1 Definition: A grievance is defined as meaning any dispute regarding the
application of the following:
(a) The terms of this Memorandum of Understanding.
(b) The discharge, demotion, or discipline of an individual employee.
(c) This procedure does not apply to instances of dissatisfaction by
employees over their wage rates once such rates have been established
by action of the District's Board of Directors following the meet and
confer process. (Subsection reformatted 1991)
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14.2 Representation: In initiating and prosecuting a grievance, any individual
employee shall have the right to present grievances to the District and to
have such grievance adjusted without the intervention of Union, provided
that the adjustment shall not be inconsistent with the terms of this
Memorandum of Understanding, provided that Union's Business
Representative shall be given an opportunity to be present at such
adjustment, and provided, further, that grievances settled by individual
employees without representation by Union Officials shall not bind the Union
to an interpretation of this Memorandum of Understanding.
14.3 Time Limits: The time limits specified below may be extended for a
reasonable period of time to a definite date and time by the mutual consent
of the involved parties. The party requesting the time extension shall make
such request in writing and submit for consideration. Time extensions will
be valid only with signed approval from both parties. The failure by the
involved employee to meet any specified applicable time limit will constitute
a withdrawal of the grievance. The failure by the involved employer
representative to meet any specified applicable time limit will entitle the
involved employee to take the next step in the grievance procedure.
14.4 Grievance Procedure Steps:
Step l: The employee, and/or an employee organization official if desired
by the employee, shall discuss the issue with the immediate supervisor.
Step 2: The employee, or an employee organization official if desired by the
employee, shall reduce the issue to writing and refer the matter to the
General Manager of the District within 20 working days after the facts or
circumstances giving rise to the grievance are available to the employee, or
in the case of disciplinary action against the employee, within ten (10)
working days after (1) the employee is given written notice of the discipline,
or (2) a written determination is made after a pre-disciplinary review,
whichever date is later in time. The written grievance shall state the facts,
identify the provisions of the MOU alleged to have been violated, and state
the desired remedy. If necessary to resolve the issue, either parry may
request than an informal meeting be held in order to gather pertinent
information. If the dispute is resolved, it shall be reduced to writing and
jointly executed by the parties. If the dispute is not resolved within ten (10)
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working days after the General Manager's receipt of referral, then the
employee shall immediately proceed to the next step.
Step 3: The employee, or an employee organization official if desired by the
employee, shall, within fifteen (15) days of the General Manager's receipt
of the referral in Step 2, refer the issue, in writing, to the District's Board
of Directors. The Board shall respond, in writing, within ten (10) working
days after its next regularly scheduled Board meeting.
Step 4: The employee, or an employee organization official if desired by the
employee, shall refer the issue to Advisory Arbitration within twenty (20)
working days after receipt of the District's response in the foregoing step.
The parties shall cooperate in the prompt appointment of an Advisory
Arbitrator. If the parties fail to agree upon the Advisory Arbitrator, either
party, upon written request to the other, may request the Federal Mediation
and Conciliation Service to provide the parties a panel of seven (7)
Arbitrators. Upon receipt of such panel the parties will proceed promptly
to select an Advisory Arbitrator by alternately striking one name from the
panel. The last remaining shall serve as the Advisory Arbitrator. The
Advisory Arbitrator shall make a written recommendation to the Board of
Directors with respect to the issue submitted for arbitration. The Board of
Directors shall issue a final written decision within ten (10) days of the
receipt of the recommendation. The cost of Arbitration shall be equally
borne by the District and the referring parry, except each party shall assume
the cost of their presentations.
The following rules shall apply at the arbitration: Oral evidence shall be
taken only on oath or affirmation. Each parry shall have the right to call and
examine witnesses, to introduce exhibits and to cross-examine opposing
Witnesses on any relevant matter even though the matter was not covered in
the direct examination. If the employee does not testify in employee's own
behalf, employee may be called and cross-examined. The hearing shall not
be conducted according to technical evidence rules. Any relevant evidence
shall be admitted if it is the sort of evidence on which responsible persons
are accustomed to rely in the conduct of serious affairs, regardless of its
admissibility in civil actions. Hearsay evidence, otherwise inadmissible in
civil actions, may be used for the purpose of supplementing or explaining
other evidence, but shall not be sufficient in itself to support a finding.
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Note: An employee disputing a penalty of a suspension without pay in excess
of five (5) days pay during a twelve (12) month period, or a discharge shall
forego Step 1 and 2 of this procedure.
CODE OF POLICIES
4.24.020.6 Employees covered by this section shall receive three days* of
paid administrative leave per year, which leave shall not accrue from year
to year. Administrative leave is to be arranged by mutual agreement of the
General Manager and the employee.
* Changed to eight days on August 2, 2000.
POSITIONS OF TBE PARTIES
The Union
The Union describes the clause in dispute as a "most-favored-nations" clause of the
MOU and asserts that it is applicable to any District grant of additional paid time off to
District employees, whether they are in or outside the MEW bargaining unit. Initially, the
Union responds to the District's asserted claim of untimeliness as an affirmative defense
to the grievance.
The Union acknowledges that on August 2, 2000, the District Board of Directors
took action which increased paid time off for District employees and such time did not
include the IBEW represented bargaining unit. They acknowledged that on August 10,
Counsel for the Union wrote the District's General Manager asking for the District's
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interpretation of the applicability of Section 10.2 of the MOU to the new administrative
leave policy for exempt managers. Approximately five weeks later, after there was no
response from the District to the Union's request, a grievance was filed based on the
assumption that the District did not see their August 2 action as triggering application of
the most-favored-nations clause, Section 10.2 of the parties MOU.
In noting that the MOD's grievance procedure requires that a grievance be reduced
to writing "within 20 working days after the facts or circumstances giving rise to the
grievance are available to the employee" the Union argues that the grievance is timely.
They explain that the action by the Board of Directors on August 2, 2000, did not violate
the MOU. The mere granting of additional time off to those outside the bargaining unit
was not prohibited by the MOU. The issue in dispute is the District's assertion that the
August 2, 2000, action did not trigger application of the most-favored-nations clause, and
it is that violation which was grieved and, the Union maintains that grievance is therefore,
timely. The Union reasons that having waited five weeks to get an answer from the
District's General Manager on their inquiry regarding the applicability of the MOU
provision, it was reasonable for the Union to have concluded from the District's silence
that the District did not agree with their position and was thus in violation of the MOU.
The Union argues that failure to respond to the Union's inquiry bars the District's assertion
that the grievance was not timely filed. They hypothesize that had the District responded
to the Union after the August 10 letter and the Union had then waited more than 20 days
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to file a written grievance, the time limits would not have been met. The fact that the
District never responded to the Union, makes the grievance quite timely and the Union
questions whether the District is seriously arguing whether the time limits were indeed
met. Accordingly, the Union argues that there is no bar to the consideration of the
grievance on the merits, as the Union filed its grievance within 20 days of when it knew,
or should have known, of the violation of the MOU.
In addressing the merits of the grievance, the Union points out that in 1996
negotiations, the District sought a reduction in the vacation accrual rates for bargaining
unit employees in order to equalize vacation entitlement throughout the District. The
Union, while acknowledging that the District's request may have been reasonable from
management's point of view, while politically difficult from the Union's point of view,
nevertheless, responded with language that it believed would protect its members from a
"bait and switch" move by the District. Asserting that it did not intend to increase paid
time off for non-bargaining unit personnel, the District agreed to a most-favored-nations-
clause, demanded by the Union. This clause was proposed by the Union in response to
the District's assertion that it did not intend to increase paid time off for non-bargaining
unit personnel. The Union argues that the provision (reduced vacation) is under the
express language of the MOU, contingent upon District-wide application with any
enhancements or improvements applying to all employees of the District. The Union
emphasizes that enhancement or improvement is what occurred here and therefore, by not
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making those enhancements in paid time off District-wide, (i.e., applicable to bargaining
unit members as well) the District violated the MOU.
The Union claims that its fears of a "bait and switch" maneuver by the District had
been proven out by the actions taken in increasing administrative leave for non-bargaining
unit employees. They point out that shortly after the second or successor MOU was signed
in 2000, the District increased paid time off for its non-union employees. The mere
identification of the paid time off as administrative leave, does not, according to the Union,
change the fact that the District enhanced the vacation leave for non-union employees,
who, the Union explains, could now use administrative leave for the first 8 days off and
then use their vacation time, or carry-over vacation time to the next year.
The Union maintains that an enhancement has occurred here which essentially is a
change in conditions that enhances the value of the existing vacation, in that the District
has enhanced the value of District-wide vacation for exempt management employees. This
enhancement, in time off with pay, triggers application of the most-favored-nations
language and thus bargaining unit employees should be given the additional five days a
year of administrative leave that their management counter-parts were given by the
District.
The Union complains that the District's actions demonstrate bad faith by first
obtaining concessions from the Union to equalize paid time off among all District
employees in 1996, and then augmenting paid time off for exempt employees in 2000.
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While acknowledging that the mere utilization of a bait and switch tactic does not
necessarily demonstrate violation of the MOU, the Union argues that the specific language
found in the MOU has been violated because the language contemplates two slightly
different scenarios that would trigger District-wide application, one being improvements,
the other being enhancements to vacation. They argue that an improvement may be
increased vacation time, whereas enhancement is something that improves the value of
vacation time, which has occurred by granting additional administrative leave to the
exempt employees. Thus, the Union argues that the applicable provision of the MOU has
been violated and therefore, they seek a remedy which would make the enhanced paid time
off available to all employees of the District.
The District
The District interposes the affirmative defense of arbitrability, arguing that the
timeliness of the grievance is a threshold issue which must be decided before any
substantive issue can be considered. They argue that in that the grievance was not filed
within the timeliness provided for in the MOU, it was essentially withdrawn. In noting
that the District's Board of Directors took action to implement the expansion of
administrative leave on August 2, 2000, and such information was made available to the
employees of the District on August 3, 2000, the District explains that the time line for
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filing a grievance began on that date. They maintain that the August 10, 2000, letter from
Counsel for the Union to the District only serves to acknowledge that the Union was aware
of the District's decision, which became the subject of a grievance. It is clear that the
grievance must be reduced to writing at Step 2, and referred to the General Manager of
the District within 20 working days after the facts or circumstances giving rise to the
grievance are available to the employee. The District reasons that this gave the Grievant
until September 8 to file his grievance, counting 20 working days from August 3, the date
on which the fact of the Board's decision was available to all District employees.
The District claims that its not being hyper technical or making an unsubstantiated
allegation, but that their position is based upon the simple fact that the Grievant failed to
submit his grievance within the deadline, indeed such grievance was submitted two weeks
after the deadline. Clearly the applicable provision of the MOU provides that in the event
a grievant fails to perfect his grievance within the applicable time limit, that grievance will
be assumed to have been withdrawn. They note that the letter from Union's Counsel on
August 10, did not identify itself as a grievance, or claim any violation of the MOU, but
merely appeared to be an innocuous and general communication, rather than the filing of
a formal grievance. Thus, there simply is no evidence that a grievance was filed within
the applicable time limit provided by the MOU and the District therefore, argues that the
grievance should be dismissed as untimely.
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In the alternative, the District argues that on merit, the grievance should be denied.
The District emphasized that as used in the MOU, and indeed in other labor agreements
nation wide ,"administrative leave" and "vacation leave" are wholly distinct benefits with
entirely separate and different purposes behind them. They explain that the purpose of
administrative leave is to function as a counter-part to the overtime compensation paid to
hourly employees, providing some compensation for exempt employees for the hours
worked in excess of 8 hours per day or 40 per week. Conversely, vacation leave is a
benefit granted to all employees to encourage and enable them to spend time with their
family, pursue personal interests and hobbies, or simply relax with some time away from
work. Administrative leave is functionally distinct from vacation leave, since
administrative leave granted by the District is not vested and does not accrue from year to
year. Vacation leave vests as it is earned and is not subject to a "use it or lose it" type of
rule.
The District explains that any increase in administrative leave is simply not covered
by Section 10.2 of the MOU. That Section deals specifically and solely with the rate at
which vacation leave is accrued, and the language requiring the "enhancements or
improvements shall apply District-wide" is limited by its terms. It provides that the
application of the so-called "most favored nations clause" shall "pertain solely to Title
10.2".
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The District further notes that administrative leave existed prior to the signing of
both the 1996 and 2000 MOUs, and that administrative leave is not referenced in either
MOU and was not raised as an issue during the negotiations which led up to the MOU.
They reason that if the Union and the District intended that "enhancements or
improvements" to vacation and administrative leave should apply District wide, the
negotiated MOU could, and would, have so stated. It is notable that prior to the current
dispute, the Union never gave the District any indication that it considered administrative
leave to fall within the ambit of Section 10.2
The District takes exception to the Union's allegations of a "bait and switch" tactic.
They note that the Union cites a "reduction" in vacation leave and argue that this is an
inaccurate and misleading characterization. The District explains that no Union member
employed by the District at the time of the alleged "reduction" in 1996, had his or her
vacation accrual reduced in any way as a result of the 1996 MOU. The District maintains
that the 1996 MOU actually enacted a shift in vacation accrual away from a structure in
which vacation accrued more heavily during the early years of employment, toward a
structure in which vacation accrued more heavily in later years of employment. This had
long been the case with management employees, and it was felt that the vacation provisions
for Union employees should be harmonized with those of management. The District
emphasizes that in recognition that implementation of the new system would cause some
younger District employees who were members of the Union to lose vacation time, the
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District grandfathered in every person employed at the time the MOU was signed. The
grandfather provision operated only to prevent vacation from being lost without taking
away the newly increased benefits for senior employees. The District claims that it acted
in good faith at all times, especially in negotiating and implementing the new MOU.
The District disagrees with the Union's distinction between "enhancement" and
"improvement". They dispute that the availability of administrative leave somehow makes
the existing stock of vacation leave more valuable and thus subject to the MOU. They
note, that a salary increase given to management would make vacation time more valuable
and point out that the Union has understandably not claimed that somehow this action
would be covered by the MOU provision regarding vacation enhancement. The District
claims that the use of both enhancement and improvement are interchangeable and neither
has any real significance beyond their obvious intent, as specified in the language of the
MOU Section 10.2. The District claims that it would never have agreed to any such
language as claimed now by the Union, and further argues that the provision in dispute
should be construed to resolve any ambiguities against the drafter of the agreement, in
accord with the long established legal principles of contract interpretation.
The District even disputes the fact that if the Union's arguments were accepted, that
administrative leave would make vacation leave more valuable. They reason that the two
are not interchangeable and that administrative leave is weighed down by the significant
restriction that anyone wishing to use it must first receive permission from the District's
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General Manager. Also, administrative leave, unlike vacation leave, is not cumulative.
They assert that for all the reasons stated, including the untimeliness of the grievance, it
should be rejected.
DISCUSSIONS AND CONCLUSIONS
This matter essentially involves two issues, the timeliness of the grievance which
is a threshold issue that may terminate any further consideration of the merits of the case,
if indeed the Arbitrator does not have jurisdiction because the grievance was not filed in
accord with the applicable provisions of the parties MOU. In the instant case, a claim was
made that a benefit was granted on August 2, 2000, to exempt management employees
which, by operation of the MOU of the parties, should have been made applicable to all
employees District-wide. The Union maintains that it did pursue a grievance when it
became aware that the benefit was not going to be provided to all employees, which
essentially was never made clear by the District, as they never responded to the Union's
inquiry of August 10, 2000. When the grievance was filed, approximately five weeks after
that inquiry, the Union claims that they had reason to believe that the District was not
going to include bargaining unit members in the increased administrative leave benefit and
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therefore, filed a timely grievance when they knew, or should have known, of the contract
violation. Obviously, the District argues that the strict 20 day time line provided for in the
MOU for filing of the written grievance at Step 2, should be applied and thus make the
grievance several weeks late and essentially withdrawn from consideration.
The question of arbitrability is not a novel one before this or any arbitrator who has
handled more than three cases. It appears to rise anew periodically, and it is an entirely
valid affirmative defense if proffered correctly. Virtually every labor contract, including
this one, provides that a grievance is essentially not viable unless it has been filed within
the appropriate time limits of the collective bargaining agreement. When a grievance is
not filed within the time limits set forth in the collective bargaining agreement, an
arbitrator generally will dismiss the claim as non-arbitrable, unless the opposing party has
waived the procedural defect. Essentially the parties have limited the cases which they
agree to arbitrate according to the terms of their agreement and an arbitrator, solely
deriving his or her power from the parties' agreement, lacks authority to hear an untimely
grievance.
The real issue that arises in many questions of arbitrability related to timeliness of
a grievance, is a factual determination as to when the cause or event occurred which gave
rise to the grievance. That is essentially the issue in this case. If, as the District suggests,
that August 2 was the cause or event, the grievance may well be untimely. If, as the Union
asserts, the cause or event occurred much later, sometime after five weeks had passed from
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their inquiry of August 10, then the grievance is timely and should be considered on the
merits. There is also the very real question as to whether or not the violation is a
continuing one in which, by definition, the grievance filed in September of 2000 is timely,
as the violation is continuing each and every day.
The doctrine of continuing violation occurs in many contexts, including a company's
failure to discharge an employee who does not join the union, Kerr-McGee Oil Indus., 44
LA 701 (1965); Sargent Eng'g Corp., 43 LA 1165 (1964). It often occurs in disputes over
wage rates or failure to grant merit increases to employees. See e.g., Cleveland Pneumatic
Co., 91 LA 428 (1988); Allegheny Cigarette Serv. Co., 58 LA 1259 (1972); Dayton Tire
& Rubber Co., 48 LA 83 (1967); Steel Warehouse Co., 45 LA 357 (1965); Taylor-
Winfield Corp., 45 LA 153 (1965); Avco Corp., Lycoming Div., 43 LA 765 (1964). See
also Mississippi Structural Steel Co., 55 LA 23 (1970). Indeed the doctrine of continuing
violation has been applied in numerous contexts by arbitrators, including cases involving
continuing race discrimination and subcontracting violations. See Pittsburgh Hous. Auth.,
84 LA 180 (1985). In the instant case it is clear that the Union was seeking a benefit that
it believed it was entitled to under the contract and which was denied to them by the
District. Every day that benefit was denied, if the Union's claim is meritorious, which
must be presumed for this limited analysis concerning arbitrability, then the grievance is
obviously timely in that the day it was filed was another continuing day of violation. I
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choose to follow this clear line of authority concerning the issue of arbitrability and find
that the grievance, as a continuing violation, was indeed timely.
It could also be argued that under a theory of estoppel, the grievance should not be
held untimely because the Union made an effort to obtain clarification of the District's
position regarding the benefit extended to the exempt managers and that request for
information, for whatever reason, was not responded to for over five weeks and most
certainly not before the grievance was filed. It would appear that both because of the
continuing violation and under any theory of estoppel, the grievance is timely. Therefore,
it is arbitrable and the grievance will, indeed must be, considered on merit.
It has often been said that an arbitrator essentially reads the contract for the parties.
In the instant case, the language to be read is Section 10.2 of the parties' MOU. It is
significant to quote that language verbatim, herein as follows:
10.2 Rates of Accrual:
NUMBER OF DAYS
RATES OF ACCRUAL PER YEAR
(a) For the first five years of continuous service 10
(b) After completing five years of continuous service 15
(c) After completing ten years of continuous service 20
(d) After completing 21 years of continuous service 21
23
(e) After completing 22 years of continuous service 22
(f) After completing 23 years of continuous service 23
(g) After completing 24 years of continuous service 24
(h) After completing 25 years of continuous service 25
Note: The above vacation schedule shall apply to all employees hired after January 1,
1995. With respect to all other employees, the implementation of the above schedule shall
be in accordance with the Vacation Implementation Schedule attached to this agreement
and entitled Exhibit B. If it is determined that an error was made in preparation of the
Vacation Implementation Schedule for any employee, the parties of this agreement agree
to modify the Schedule appropriately.
This provision is contingent on District-wide application. Any enhancements or
improvements shall apply District wide. This application shall pertain solely to Title 10.2
and shall not be precedent setting.
It is also significant to note that Section 10.2 refers, in all respects, to vacation
leave, which is clearly distinguishable from administrative leave. The Union obviously
can complain about bait and switch tactics or the equities in the situation, but the simple
fact is that vacation leave, both in dictionary definitions and in practical applicability under
labor contracts, and administrative leave which seldom, if ever, appears in a labor
contract, are different and distinct concepts. The Union and the District agree that
administrative leave is not referred to in Section 10.2. It is clearly a section that refers to
vacation leave and by its own terms, the so called most-favored-nations provision applies
only to Section 10.2 of the MOU, the vacation leave article.
24
It must be emphasized that the mere designation of leave as administrative leave
would not, in and of itself, save the District from committing a violation of the MOU. As
an example, if exempt management employees were given additional days off, which they
could accumulate, bank and take at their discretion, the simple designation by the District
of that time off as administrative leave, would not insulate management from the "most
favored nations" provision of 10.2. If it walks like a duck, talks like a duck, its a duck.
If it's really vacation leave being granted to exempt managers, this and any other
arbitrator can see and distinguish it. In the instant case, the administrative leave that was
extended to exempt employees already was available to only them. They received three
days by operation of personnel regulation and that three days was extended by five
additional days to a total of eight days that were available, but not bankable. The fact that
the administrative leave is not accumulated and can only be utilized upon approval of the
General Manager of the District, greatly distinguishes it from vacation leave. The
Arbitrator is cognizant of the Union's argument that an individual may benefit from
accumulating vacation leave while using administrative leave to take off, but that argument
is not persuasive and as the District explains, is no more significant than exempt
management employees making higher salaries and thus having an enhanced vacation
benefit or accumulation benefit in the event that vacation time is paid out in a cash
payment, such as in the instance where an individual were to retire with a vacation
balance. In that very same instance, the individual retiring would not receive payment for
25
administrative leave, although he or she would receive payment for accumulated vacation
leave. Thus, if administrative leave is different in both description and practice from
vacation leave, then clearly the "most favored nations clause" of Section 10.2 does not
apply to the administrative leave increased for the exempt management employees.
Even if one considers for the sake of argument that the language of Section 10.2
regarding the so called most-favored-nations provision is ambiguous, this arbitrator will
follow the well established rule of construction, known as expressio unius est exclusio
alterius, See arbitrator's use of this rule in Wolf Baking Co., 83 LA 24, 26 (1984);
Hoover Universal, 77 LA 107, 112-13 (1981); Saint Louis Symphony Soc'y, 70 LA 475,
479 (1978); Allied Paper, 70-1 ARB 18334, 4114 (1970); A.O. Smith Corp., 47 LA 654,
661 (1966); Modecraft Co., 44 LA 1045, 1049 (1965). The principle fits in with a general
idea that a written contract is presumed to embody the whole agreement of the parties and
terms or obligations that the parties did not include, should be deemed to be deliberately
excluded. This is part of the philosophy that, to the greatest extent possible, the words that
parties themselves had used should govern and legal obligations should be limited to
contract language. See Hoover Universal, 77 LA 107, 112 (1981). On a case exactly in
point, Arbitrator James Doyle held that the enumeration of several specific circumstances
recognizing absences as time worked in determining an employee's vacation eligibility
evidenced an intention to exclude other absences, such as lay offs and strikes from the
vacation eligibility calculation. See Smith & Loveless, 65-2 ARB !,8765, 5812 (1965). In
26
the instant case, the parties in negotiating the contract were represented by well
experienced advocates, human resources professionals and Union leaders, who are
generally familiar with the distinction between administrative leave, often a benefit granted
only to management employees and vacation time, a benefit available to craft employees.
Often when some type of administrative leave is granted to craft employees, it is
specifically identified as such (i.e., jury duty, military service etc.), and is essentially a
right that is expressly incorporated into the contract. Administrative leave, by definition,
provides certain discretion to the higher level manager to either grant or not grant the time
off and essentially is viewed as "administrative overhead" in the budgetary and accounting
policies of most business entities. Quite simply under the rules of contract interpretation
hereinbefore noted, the fact that the parties did not include administrative leave in the
disputed language of Section 10.2, must be presumed to be based upon the simple fact that
they did not intend to include it and therefore, the granting of the administrative leave to
exempt management employees, or more appropriately stated, the increase in number of
days available to them from three to eight, is a matter that is not under the purview of
Section 10.2. Indeed, it is specifically excluded from Section 10.2 by the very terms of
the disputed provision. Accordingly, the Union has failed to establish that the complained
of action by the District in granting additional administrative leave to its exempt personnel
constitutes a violation of the MOU.
27
AWARD
In view of the findings and conclusions set forth above, it is my determination that
the grievance was filed in a timely manner and therefore it is properly before the
Arbitrator. I further find that the action complained of, the District's granting of five
additional days of administrative leave to its exempt management employees, does not
violate the provisions of Section 10.2 of the MOU requiring enhancements or
improvements in vacation to apply District wide. In finding no violation of the MOU, the
grievance must be, and herein is, denied.
John P. Di
Fa c
Arbitrator
May 22, 2001
Fort Collins, Colorado
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Staff Report
To: Board of Directors
From: Stephen Hollabaugh—Assistant General Manager
Date: May 31, 2001
Subject: Discussion of Long-Term Wholesale Power Supply Issues.
In our last Board meeting, I quickly discussed the District's wholesale power costs from now
to the end of 2009. Below is a description of that report.
Idacorp. Long Term Power Contract and Surplus Power:
Our contract with Idacorp starting in 2002 and running through 2009 is priced at $0.072 per
kWh. Within this contract is some surplus power. When prices were high, we had planned
to sell this surplus but forward prices have fallen to a level that the surplus energy would be
projected to sell at a loss or deficit.
Rate Stabilization Fund:
The current balance in the rate stabilization fund approximately $650,000. The August rate
increase will raise approximately $500,000 towards the rate stabilization fund.
Swaps:
My definition of a swap is when I simultaneously sell power at one location and buy the
same amount of power at another location to be delivered to the District. The District then
"swaps" power from Idaho to Utah at a lower Price. I have made an arrangement with
Idacorp that shares the benefits of a swap when this is done. April, May and June swaps
saved the District approximately $700,000. A future swap in October, November and
December will save approximately$1,200,000.
Summary of Rate Stabilization Fund:
$ 650,000 Current Balance
$ 700,000 April May and June Swap Savings
$ 500,000 August percentage of Rate increase to Stabilization Fund
$1 200 000 Estimated Oct Nov & Dec. 2001 Swap Savings
$3,050,000 Approx. Amount as of Jan 1, 2002 in Rate Stabilization Fund
0 Page 1
Surplus Power Deficits:
Below is an estimate of the loss or deficit by year of the surplus power:
2002 -$1,500,000
2003 -$5,000,000
2004 -$5,000,000
2005 -$5,000,000
2006 -$5,000,000
2007 -$4,000,000
2008 -$4,000,000
2009 -$3,000,000
As you can see, the Districts needs to do something to mitigate these losses as the rate
stabilization fund will not be adequate for this amount of deficit.
Strategies to Mitigate the Surplus Power Deficits:
UAMPS Plan
Restructure Idacorp contract
Swaps where economic
Future Generation with UAMPS
Action: I will develop plans that may include some or all of the above and bring them to the
Board.
y
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