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Ross Runkel

Title: Utah Power and Light and IBEW Local 57
Date: September 9, 2006
Arbitrator: Burton White
Citation: 2006 NAC 110

 The parties in this dispute are Utah Power & Light Company (Employer or Company) and the International Brotherhood of Electrical Workers, Local 57 (Union or IBEW). The Employer is a subsidiary of PacifiCorp (Corporate). The arbitration was held pursuant to the provisions of the collective bargaining agreement (CBA) entitled, “Labor Agreement for Power Delivery between Utah Power & Light and Local 57 of the International Brotherhood of Electrical Workers” (Agreement or CBA) from January 26, 2003, through January 25, 2006. (Jt. 1.)

The hearing was held on April 27 and June 9, 2006. The parties agreed that the matter was properly before me as Arbitrator to hear the dispute and to issue a final and binding decision. Both parties participated in the hearing; each had full opportunity to present evidence, call and cross-examine witnesses, and argue its case.[1] The parties requested that if I were to determine that the grievance addressed in this matter is to be upheld in whole or in part, that I retain jurisdiction to assist the parties, if need be, in the interpretation and application of my Award. (Tr. II, p. 235.)

The parties elected to make closing arguments in written briefs. They set Friday, July 14, 2006, for simultaneous submission of briefs. Both documents were postmarked on that date. The second of the two was received on July 19, 2006, whereupon the record was closed.

ISSUE

The parties agreed to the following statement of the questions before me:

Was the Grievant terminated for just cause on October the 12^th, 2006?
If not, what is the appropriate remedy?

LANGUAGE

I. Collective Bargaining Documents

A. From the Collective Bargaining Agreement (CBA) (Jt. 1):

Article I

Introduction And [sic] Recognition

Sections 1.1 through 1.7 omitted.

1.8            Should the Company establish any new department or materially rearrange any of its present departments so that the definitions or rules then in effect will not apply, then the parties hereto will meet at least 30 days before said change is to be made for the purpose of arranging classifications, wages, hours and schedules of work.

Sections 1.9 through 1.13 omitted.

1.14            The supervision and control of all operations and the direction of all working forces, including the right to hire, to suspend or discharge for proper cause, or to transfer employees or to relieve employees from duty because of lack of work or other legitimate reasons are vested exclusively in the Company. The Company retains the right to exercise discipline in the interest of good service and the proper conduct of its business. An employee, who had been laid off, disciplined or discharged or the employee's representative shall be advised of the reason or reasons for such action upon request, and shall be entitled to a hearing as hereinafter provided in Article 5.

Article 4
Hours of Work and Compensation

Section 4.1 omitted.

4.2            Overtime

4.2.1            Overtime is the actual time worked by a regular employee other than the regular employee's working hours. ***[2]

4.2.2            Employees who are required to work overtime shall be paid for such overtime as follows:

Time and One‑half

·               For work beyond eight (8) hours in a day or hours outside the normal daily work schedule or work week or the regular hours or days of a temporary shift.

[Remainder of entry omitted.]

Double Time

·               For all hours after 16 continuous hours until the appropriate break in hours has been satisfied as described in Section 4.2.3.

·               [Omitted.]

·               When multiple time and one‑half pay provisions overlap, double time would be paid during the overlap time period.

·               It is understood that the double time rate of pay is the maximum overtime payment for any hour worked. ***

4.2.3 Unpaid rest periods of 4 to 8 hours, as determined by supervision, shall not change the pay status of two times regular rate for employees who return to work immediately after such rest periods. Rest periods of more than 8 hours will be sufficient to change one's pay status. If such unpaid rest periods extend into the employee's regular scheduled work hours, such employees will receive only straight time pay for the rest period hours occurring during the employee's regular scheduled work hours. Any call-out within two hours of an employee's regular quitting time or within two hours of a previous call-out shall be bridged back to the previous quitting time or previous callout for the purpose of calculating sixteen (16) continuous hours to achieve double time compensation. Employees will be paid only for time worked and do not receive compensation for the bridged time identified above.

[Subsections 4.2.4 through 4.2.8 omitted.]

4.2.9 Employees who are required to work more than two (2) hours overtime after the regular quitting time shall be compensated for a meal by the Company and the first subsequent meal at five and one-half (5 1/2) hours with additional meals at intervals of not more than six (6) hours thereafter while they continue to work. Meals will be compensated by the Company for employees who work more than two (2) hours before their regular starting time, including holidays and regular days off. Breakfast compensation will be provided for employees who report to work one and one-half hours (1 ½) or more before their regular starting time, including holidays and regular days off. (breakfast compensation only) [sic]

Pre-arranged overtime meals on holidays and regular days off will be compensated as stated in "Payment for Meals" Memorandum of Agreement.

[Subsections 4.2.10 through 4.2.13 and Sections 4.3 through 4.8 omitted.]

Article 5
Grievance Procedure ***

Adjustment And [sic] Arbitration

5.1            Employees of the Company shall have the right to a hearing on any difference of opinion with respect to matters of promotion, demotion, discipline, layoff or discharge.

[5.2 through 5.4 Third Step omitted.]

Fourth Step:

***

The award of the arbitrator shall be final and binding upon both parties and upon the employee(s) involved. The fees and expenses of the arbitrator, and any other expenses agreed to by the parties prior to the arbitration, shall be shared equally by the Company and the Union. The arbitrator shall have the power and authority to arbitrate only those matters expressly made subject to arbitration by the terms of this Agreement, and shall rule only on the issues submitted in writing for arbitration. The arbitrator shall not have power to alter or amend the Agreement.

This provision shall not be construed to prevent further conferences between the parties hereto for the purpose of settling the dispute at any time before the decision of the arbitrator.

5.5.            In the event it is decided in the manner provided in this Agreement that the employee has been suspended, demoted, laid off of discharged without cause, the employee's record shall be cleared of such charges and the seniority restored: and the employee shall be reimbursed for any loss of wages resulting by reason of such suspension, demotion, layoff or discharge.

Memorandum of Agreement

Payment for Meals

January 26, 1898

Payment For Meals During Extended Work Hours

Payment for meals will be made to bargaining unit classification employees and management personnel when extended work hours are required by the Company. The provisions of Section 4.2.9, 10 and 11 [sic] of the agreement between I.B.E.W. Local 57 and the Company cover the cases of extended days and early call out. Employees will be allowed a reasonable period of time to eat meals provided under this policy but will be on their own time during the meal period-time off for meals is not subject to overtime pay.

The Company will reimburse employees $7.00 for breakfast, $8.00 for lunch, and $17.00 for
dinner.

The type of meal to be reimbursed will be determined by the hour during which the meal would
normally be furnished. The following time periods will be used in making this determination:

Meal allowances will be disallowed for bargaining unit employees if no overtime is reported for
the corresponding day that is marked for the meal allowance.

[Remainder of MOA omitted.]

B. From Joint Exhibit 2:

Memorandum of Agreement
Between
Local 57 IBEW & PacifiCorp
March 17, 2005

Issue: Staffing and Operating Parameters for the Wasatch Restoration Center

In accordance with Article 1, Section 1.8 of the collective bargaining agreement between Local 57 and PacifiCorp's Power Delivery business unit, the parties have met and resolved the issues associated with the staffing and operating parameters for the Wasatch Restoration Center (WRC). The parties recognize that with reorganizations of this scale, additional issues may arise after the WRC is operational. The Company and the Union are committed to jointly resolving any future issues that may arise.

Staffing the WRC

[Paragraph 1 omitted.]

The following definitions apply to the language in this memorandum:

Wasatch Front:             [omitted].

Work Week:             [omitted].

Regular Hours:            The hours for the shift on which the employee is scheduled for that day; [sic] is considered their “normal work day.”

Crew Support:             [omitted].

Hours of Operation [Omitted.]

Shift Definitions:

 Regular Day Shift (RD):
Eight-hour shift beginning at 0700 and ending at 1500; scheduled Monday through Friday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day.

Day Shift (D):
Ten-hour shift beginning at 0700 and ending at 1700; may be scheduled either Monday through Thursday or Tuesday through Friday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day.

Afternoon Shift (A)
Ten-hour shift beginning at 1300 and ending at 2300; may be scheduled either Monday through Thursday or Tuesday through Friday. Logistic specialist shift (a) to begin at 1500 and end at 0100, Monday through Thursday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day and will receive 4% shift differential per the working agreement.

Weekend Day Shift (W)
Twelve-hour shift beginning between 0700 and 0900; scheduled Friday through Sunday or Saturday through Monday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day. Will receive 2% differential added to base pay and will receive 40 hours pay for 36 straight-time hours worked.

Weekday Graveyard Shift (WDG)
Ten-hour shift beginning at 2100 and ending at 0700 the following day Monday through Friday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day and will receive 7% differential per the working agreement.

Weekend Graveyard Shift (WG)
Twelve-hour shift beginning at 1900 and ending at 0700 the following day Friday through Monday or Saturday through Tuesday. Employees on this shift have a 30 minute paid lunch break to be observed based on operating circumstances each day. Will receive 7% differential per the working agreement. Will receive 2% weekend differential added to base pay and will receive 40 hours pay for 36 straight-time hours worked.

[Remainder of Shift Definitions omitted.]

[Remainder of section omitted.]

Available Schedules [Omitted.]

Troubleshooters [Omitted.]

Thumper Operators [Omitted.]

Foreman [Omitted.]

Journeyman Linemen

Support (Equipment Operators and General Helpers) [Omitted.]

Service Coordinators [Omitted.]

Overtime:                                    Overtime is defined as

(a) through (c) [Omitted.]

(d) Time worked in excess of 10-hours in a day when scheduled for 10-hour days …

(e) [Omitted.]

Overtime Equalization/Call Out [Omitted.]

[No heading]

The Union and Company agree that the following provisions will supersede any conflicting language in the Collective Bargaining Agreement with regard to these shifts as established:

I.             Filling Established Shift Positions [Omitted.]

II.            Filling Temporary Vacancies [Omitted.]

III.           Shift Changes for Required Training Only [Omitted.]

IV.          Application of other Agreement provisions to persons governed by this MOA

A.      Holidays [Omitted.]

B.      Vacation [Omitted.]

C.      Sick Leave [Omitted.]

D.      Bereavement Leave [Omitted.]

E.      Hourly Compensation [Omitted.]

F.      Meals

Overtime meals will be compensated as per Section 4.2.9 of the Labor Agreement.

1.     Employees working shifts with a paid meal period shall eat as work permits.

G.      Vehicles [Omitted.]

V.       Logistics Specialist Expectations [Omitted.]

VI.      Administration of this Memorandum of Agreement

A.          A Joint Shift Implementation Committee shall be established and will meet as needed to review the implementation of this MOA. The Company Labor Relations Designee and the Union Business Manager must approve and sign all amendments of changes to this agreement.

B.           [Omitted.]

C.           The Joint Shift Implementation Advisory Committee will meet as needed to review and resolve problems that may arise within this agreement. The Collective Bargaining Agreement will be the final interpretation concerning the terms and conditions not superceded by this Memorandum of Agreement.

D.           While it is the hope that issues can be resolved without resorting to grievances and arbitration, it is understood that the grievance and arbitration provisions of the Collective Bargaining Agreement apply to disputes that cannot be resolved by the Joint Committee.

E.           [Omitted.]         

II. Corporate Documents

A. From Discipline Guidelines (Co. 21.)

TERMINATION

***

SERIOUS MISCONDUCT

Termination without prior warning or notice is appropriate for any serious misconduct or serious performance problems. The Company’s management determines whether conduct or performance problems are such that it is appropriate to terminate an employee without the benefit of a prior warning.

Examples of serious misconduct and serious performance problems include the following:

·   theft

***

·   deliberate alteration or falsification of Company or work-related records

·   unethical or willfully deceptive conduct or work practices

[Remainder of document omitted.]

B. From Payroll: Time Reporting and Approval Policy (Co. 4.)

Policy

In order to evidence the effectiveness of PacifiCorp’s internal controls governing fiscal reporting, every employee (both exempt and non-exempt) is required to prepare a timesheet and attest to its accuracy by signing and dating it. The timesheet must then be submitted to the supervisor for review and approval. [Remainder of paragraph omitted.]

Procedure Overview

Procedure [Variance in bold face type as in original.]

1.0    Time Entry and Approval [Omitted.]

1.1 Approved Time Sheets [Omitted.]

1.2 Employee Responsibility

·         Individual Daily

Employees (or their designated proxies) must accurately log their hours worked, hours off, type of hours and cost objects, and report that time using a payroll-approved timesheet for each day. The timesheet must then be approved by the supervisor before being entered in SAP, …[3][Remainder of entry omitted.]

·         Crew Daily

Foremen/crew leads/supervisors (or their designated proxies) must accurately log crew hours worked, hours off, type of hours and cost objects, and report that time using a payroll-approved timesheet for each day. After the foreman/crew lead/supervisor has fully completed the timesheet, each employee in the crew must attest to its accuracy by signing and dating it. [Remainder of entry omitted.]

[Remainder of 1.0 omitted.]

2.0    Time Entry Verification [Omitted.]

3.0    Miscellaneous

3.1 Fraud

Falsification of timesheets is considered a fraudulent action under the Fraudulent or Dishonest Activities and Whistleblower Protection Policy. Falsification of timesheets includes, but is not limited to, intentional overstatement of regular or overtime hours worked knowingly charging the wrong accounting, failure to report personal time taken or alteration of timesheets that have previously been approved or recorded.

[Remainder of 3.1 omitted.]

[3.2 and 3.3 omitted.]

3.4 Corrections
No changes will be allowed without prior approval from the supervisor. If extensive changes are required, a new timesheet should be generated and submitted to the supervisor, along with the original timesheet, for review and signed approval. Otherwise, minor changes may be marked on the old timesheet and initialed by the supervisor to indicate approval before being entered in SAP. ***

[Remainder of document omitted.]

PRELIMINARY COMMENTS

An Arbitrator’s Audience. In my view, in addition to the advocates of the parties to whom an Opinion is submitted, grievants and other employees, supervisors and other management personnel are key parts of the audience for arbitrators’ Opinions. In the public sector, the audience may well also include the public. One cannot assume that all members of such a wider audience necessarily will have access to the documentary evidence or to the specifics of the testimony presented at a hearing, or that they will be as familiar as are the advocates with other details of the case or with arbitration practices, procedures, and standards. With that larger audience in mind and where I deem it may be helpful to a reader’s understanding, I provide background for my comments.

The individuals who play a part in this dispute. Arbitrators’ Opinions can become permanent records, at least in the archives of the parties. Arbitrations can deal with very personal and private matters and, during the course of an arbitration, assertions can be made that may not be factual. Moreover, in fulfilling their obligations to the parties, arbitrators are often called upon to make assessments of the credibility and job performance of individuals on each side of a dispute.

Whenever I can do so without sacrificing clarity, I compose my Opinions to identify persons by roles rather than by names. Since the parties are aware of the identity of individuals, this device does not place them at a disadvantage, but it does erect a somewhat effective shield against easy identification by persons not directly involved in a case.

To assist the reader, I present the following chart. The individuals are listed in the order in which they testified.