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GENERAL TEAMSTERS, LOCAL UNION NO. 249 v. POTTER-M
May 7, 1976
GENERAL TEAMSTERS, CHAUFFEURS And HELPERS, LOCAL UNION NO. 249, Plaintiff,
POTTER-MCCUNE COMPANY, Defendant
The opinion of the court was delivered by: TEITELBAUM
Article 2 of the collective bargaining agreement between the parties to this case provides in pertinent part as follows:
"(d) Hiring Practice: The employer will call extra men from the extra list provided by Local 249. If 249 does not have men available, the employer may employ whomever it chooses. The employer can use extra drivers from the 249 extra list up to one (1) calendar week without a driver accruing any seniority. However, if the employer calls the extra list and asks for a driver by name, or calls the driver directly after the first week, then the driver will begin to accumulate seniority on the extra list and he will be considered a regular extra employee. Extra drivers will not go on the employer's regular driver seniority list until the extra driver has accrued sixty (60) consecutive working days.
"It is understood that the purpose of this clause is not to keep men from accumulating seniority on the extra list, but to give an opportunity to the employer to try out an employee for at least one (1) week of time. . . ." (emphasis supplied)
On the morning of January 31, 1975, after unsuccessful attempts to obtain extra drivers through the union hall extra list, representatives of the defendant company directly called the two grievants in this case -- William Stuck and Daniel Bill -- and asked them to report to work. Both men reported and worked as drivers for the company on that day. Prior to January 31, each grievant had worked for the company for at least one week in excess of 40 hours. The grievance was filed when defendant subsequently refused to classify Stuck and Bill as "regular extra employees" in accordance with the terms of Article 2, Section (d) of the collective bargaining contract.
Unable to arrive at a " mutually satisfactory adjustment " of the grievance, the union and company submitted the dispute to binding arbitration pursuant to Article 15 of their labor agreement. At arbitration, the union argued that the language contained in Article 2, Section (d) required that the grievants be granted regular extra employee status after they were called by the employer at their homes to report to work on January 31, 1975.
After a full hearing on the matter, the arbitrator rejected the union's position in an opinion and award which states the following at pages 19, 20 and 21:
"[What] we have present in this case is contract language that requires the employer to go first to the extra list to fill his needs for extra drivers. It permits the employer to use extra drivers from that list up to one full week but it severely restricts his asking for drivers by name from the extra list or calling a driver directly, after they have worked a full week. If that is done those employees should begin to accumulate seniority. The Article further emphasizes that the purpose of that clause is not to keep men from accumulating seniority but as a means for trying out an employee for a week.
"On the other hand, for ten years there has been a practice of the employer directly calling Local 249 men to serve as extras whenever the extra list was unable to supply the numbers needed. It is clearly a situation where the contract specifically requires one thing, while the practice that developed with the concurrence of the union was in contradiction to that language.
"In such a circumstance there is only one judgment that can be made. The parties have agreed to contract language that is clear and specific, and that language is not subject to amendment by an arbitrator. Therefore, it must stand. At the same time the union has consistently condoned violation of that language. In so doing it gave to the company the right to believe that on January 31, 1975, when they called Mr. Stuck and Mr. Bill to report to work as extra drivers, it was only committing itself to its contractual obligation to an extra driver, and that it was not taking the two men on as regular extra drivers. If the union wishes to regain its rights under the contract, it is obliged to give the company advance notice of its intentions. This, it did not do prior to January 31, 1975, when the company acted on the basis of what it considered to be established procedures.
"As the Union Counsel stated in his brief, what caused this grievance to erupt was the hiring of an individual, who was never a member of the Local 249 bargaining unit, as a regular employee. It is fully understandable why the members of Local 249 would feel injured by this action. However, no matter how much this Arbitrator might sympathize with the feelings of the Grievants and Local 249 members, he has no authority to rule on that action by the Company. The issues before him in this case related to the meaning of the contract language contained in Article 2(d), the nature of the past practice that existed, and how that practice affected the grievance that was filed.
"It is therefore my award that with the requirements of the language contained in Article 2 (d), the Company could have called directly Grievants Stuck and Bill on January 31, 1975, but it was only on the basis that they would have become a regular extra employee. However, on the basis of a long standing practice known to the Union and condoned by it, the Company was led to believe that its action on January 31, 1975, was a proper one and that it would not confer on the Grievants the status of regular extra employee. The Union is therefore estopped from applying the requirements of Article 2(d) retroactive to January 31, 1975 for this grievance."
It is the plaintiff union's contention that the above-quoted decision manifests a " total disregard " of the negotiated provisions of the parties' collective bargaining agreement ...
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