2007 NAC 107 Bowater and United Steelworkers International Union

Title: Bowater and United Steelworkers International Union
Date: January 2007
Arbitrator: N. Eugene Brundige
Citation: 2007 NAC 107

OPINION AND AWARD

In the matter of Arbitration

Between

Bowater – Albertville Sawmill

And

United Steelworkers International Union
Local 9-1514

Regarding

FMCS Case No. 05-52339
Grievance Number BL04-G1A-1514

Date of Hearing – November 28, 2006
Date of Receipt of Briefs – December 15, 2006
Date of Award – January , 2007

APPEARANCES:

FOR THE COMPANY:
James F. Lincoln, Advocate
William Albert Wiggins, Plant Manager
John W. Stodghill. H.R. Manager

FOR THE UNION:
Larry Jackson, Sub-District Director, USWA
Terry Sorter, Local Vice President
James Christopher Womack, Stewart

An arbitration hearing was conducted on November 28, 2006 at Guntersville, Alabama.

At the hearing the parties offered the collective bargaining agreement and the grievance trail as joint exhibits.

The parties mutually agreed that the issue before this Arbitrator was: “Did the Company violate the collective bargaining agreement by posting in the Green End Department, on “A” shift, the opportunity to train and become qualified to perform the Filer 1 position?

In addition to the joint exhibits and verbal testimony, the parties submitted documents outlining the chronology of events giving rise to this grievance. Both parties timely submitted post hearing briefs. All materials were reviewed and considered by the Arbitrator in reaching this decision.

Both parties were given full opportunity to examine and cross examine witnesses, pose arguments and present their respective cases.

The parties agreed that the matter was properly before the Arbitrator for determination. The Arbitrator requested permission to submit the award for consideration for publication and permission was granted.

RELEVANT CONTRACT PROVISIONS

Article VII – Adjustment of Complaints

Article VIII - Seniority

Bowater is a state of the art Sawmill Operation located in Albertville, Alabama. The Operation employs 146 employees, 128 of whom are members of the bargaining unit.

The parties have been involved in a collective bargaining relationship for the last twenty eight years. They are currently governed by a six year agreement that commenced on April 21, 2003 and continues through 2009.

On May 13, 2004 Arbitrator James J. Sherman of Tampa, Florida issued an award in FMCS Case Number 041022-00653-3 in a dispute between the same parties. The issue in that case was: “whether the Company violated the contract when it failed (refused) to honor Mr. Parrish’s request for training for the Filer II position. If so, what is the proper remedy?”[1]

In that case an employee had grieved non selection for training to be a “Filer II.” Management did not select this employee but picked a less senior person. It appears from the record that the employee selected, who was a “Filer 1” did not want to be trained as a “Filer 2.”

The arbitrator denied the grievance based upon a series of documents not in evidence in the instant grievance. After considering all the evidence he determined that management did have the right to select the less senior “Filer 1.”

In the discussion (dicta) of his award the arbitrator made a statement that has led to this hearing:

“But when the parties drafted the document identified as Union Exhibit # 3, there is no doubt that they recognized that the Filers were a separate “department.”[2]

In June of 2004, soon after the Sherman award, the Union grieved the fact the company failed to recognize the Filer classifications as a separate department. It cites sections C and D or Section VIII (Seniority) as having been violated along with an alleged violation of the “recent arbitration ruling.”

Sub District Director Larry Jackson of the United Steelworkers represented the Local Union. He explained that since the 2004 arbitration decision PACE and the Steelworkers have merged and the current local is a part of the United Steelworkers.

The grievance before the Arbitrator involved a job posting in the “Green End Department to train and become (a) (sic) qualified to perform the Filer 1 position.

The Union explained that during the previous arbitration the local union took the position that the Filing room was not a separate department. The Union notes that Arbitrator Sherman ruled that the Union view on this question was not correct.

The Union does not dispute that the collective bargaining agreement (CBA) lists only four (4) departments but notes that the Union has “lived by and honored the decision of the Arbitrator in the above mentioned case.”[3]

The Union notes that the Company admitted in testimony that no one from the Company notified the Arbitrator that they disagreed with the decision or that an error had been made.

The Company notes that the parties negotiated into the current agreement provisions that would streamline the training and promotion process.

The Company determined in May, 2004 to establish an entry level position of filer 1. On May 20, 2004 the company posted a training opportunity for the filer 1 position for ten (10) days. No one bid on the training opportunity so the company assigned a junior employee from within the Green End Department to the training for the filer 1 position.

The Company states that the Union is attempting to recognize the Filer Classifications as a separate department.

The Company acknowledged that the Arbitrator did refer to Filer’s I,II,III & IV as a separate department but states the Company should not be bound by what it views as a “misstatement or misunderstanding of an Arbitrator.” [4]

The Company notes that the statement of the Arbitrator about the separate departmental status of filers was not germane to the issue presented at that time.

Finally the Company calls the attention of the Arbitrator to Section VII, page 8 of the collective bargaining agreement where it states:

SCOPE OF THE IMPARTIAL ARBITRATOR: The impartial arbitrator shall have jurisdiction and authority only to interpret, apply, or determine compliance with the provisions of this Agreement as shall be necessary to the determination of grievances appealed to him. He shall have no authority to add to, detract from, or alter in any way, the provisions of the Agreement, nor to establish or change any wage rate.

The respective positions of the parties were clearly presented and easily understood. Likewise the facts in this matter are not in dispute.

In a previous decision one of the arguments advanced by the Union was that the filer classifications were located within the Green End Department. The Arbitrator rejected that argument.

Since that time the Union has taken the 2004 Arbitration Decision at face value and has abided by the concept that the filer classifications constitute a separate department.

The Company, on the other hand, believes the language negotiated in 2003 is clear on its face and that they have followed the language in posting the training opportunity for filer I. They believe the Arbitrator misspoke regarding the filer classifications constituting a separate department, and his statement which was not central to the decision in the 2004 case cannot overcome the clear language of the agreement and the clear language of ATTACHMENT III.

Neither party is attempting to re-litigate the previous case but they are seeking clarity for their future relationship.

To decide this case I need to examine the role of an arbitration decision in controlling the future interpretation of specific contract language.

Said another way, the real question relates to the obligation of an Arbitrator to be bound by previous arbitration decisions reached on the same issue.

If this were a Court proceeding a previous decision often establishes the doctrine of stare decisis which is defined as: “to stand by things decided or the doctrine of precedent, under which it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.”[5]

While arbitrators are not strictly bound by formal rules of evidence, most arbitrators wish to acknowledge and abide by previous arbitration decisions in order to assist the parties in establishing and maintaining stable relationships and to remove the necessity, inconvenience, and expense of re-arbitrating matters.

Stare Decisis when applied in arbitration does not bind the arbitrator to blindly follow the decision of a previous arbitrator, but does provide “authoritative”[6] force or influence for deciding the new matter.

The other legal theories the Union may be depending upon are res judicata or collateral estoppel. All three propositions deal with the basic idea that once a matter is settled through arbitration, it does not need to be revisited.

This case does not meet the tests of any of the three. Chief Justice Cordozo in a Schuylkill Fuel Corporation case[7] said the following regarding all three doctrines:

“A judgment in one action is conclusive in a later one not only as to matters actually litigated therein, but also as to any that might have been so litigated, when the two causes of action have such a measure of identify that a different judgment in the second would destroy or impair rights or interests established by the first.”

“To be applicable in any forum these principles require identity of causes of action (issue) and of persons and parties to the action, including quality of persons for or against whose claim is commenced. In addition, before any judgment will be accorded any rights under these principles, it must be shown a ‘final judgment,’ ‘on the merits’ and rendered by a competent arbitrator.” [8]

In this case, there was no final judgment on the merits of the question of a separate department composed only of filer classifications. The question before Arbitrator Sherman was a totally different one.

Even with this predisposition to honor previous arbitration decisions, arbitrators are not only able to stray from the precedent of previous decisions, we have an obligation to examine each new and unique case.

Arbitrator Howard Bard noted in 1984 “The right of this Arbitrator to vary from precedent or to reinterpret precedent is reiterated in the Code of Professional Responsibility…” [9]

The Code of Professional Responsibility for Arbitrators adopted by the National Academy of Arbitrators, the American Arbitration Association, and the Federal Mediation and Conciliation Service, in effect May 29, 1985, Chapter 1, Section G, page 12 states: (1) an arbitrator must assume full personal responsibility for the decision in each case decided.

Arbitrator Edgar A. Jones Jr. outlines when circumstances may require an arbitrator to alter or set aside a previous award [10] This situation does not rise to this level in that neither party is requesting the ruling of Arbitrator Sherman be overturned in the 2004 case. Rather the question of precedent is being raised as it relates to an assumption reached in the dicta of the decision.

To be more specific, there are a number of situations when an arbitrator is free to amend or alter a precedent.

(a) When the prior decision was, in the opinion of the arbitrator, clearly erroneous,

(b) When the decision was made without the benefit of some important and relevant facts or considerations, or

The Fifth Edition of Elkouri notes “Courts have asserted that the “black letter” law is that arbitration awards are not entitled to precedential effect as are judicial decisions, nor are they considered to be conclusive or binding in subsequent cases involving the same contract language but different incidents or grievances.”[12]

Arbitrator Sherman is an experienced and well respected Arbitrator who has decided thousands of cases. As a member of the National Academy of Arbitrators and well published, he is highly regarded in the field of Arbitration and I view his work with the highest respect.

However, Arbitrator Sherman was selected to hear a different case and decided it on the basis of the evidence and testimony presented to him.

The central issue before him in the 2004 case related to automatic progression between positions. The issue of whether or not the four levels of Filer classifications constitute a separate department was never before him. I am in no position to determine if his conclusion and statement regarding a separate department was erroneous, or based upon different facts he had before him.

To make that determination I turn first to the collective bargaining agreement. Section VIII, page 10 states:

“Department Seniority – Defined as the length of service in one of these recognized departments:

3. DRY END – Includes Planer Mill-Stacking and Drying, Boiler, Kilns and Second Shift Dry End.

The contract lists only four departments. The legal maxim of expressio unius est exclusio alterius (to express or include one thing implies the exclusion of the other.) If the parties had intended to include additional departments they arguable would have listed them here.

The Union held the same view prior to the 2004 Arbitration and only the conclusion of the arbitrator in that case convinced them to change their view.

Arbitrator Sherman apparently read this provision in the same way when he stated in his award:

After a careful reading of the contract, the Arbitrator concluded that there were ambiguities. For example, Section VIII on page 8 defines “Department Seniority,” and sets forth what appears to be all the departments in the plant. But there is no mention of the grouping of jobs which the Company calls “The Filing Department.”

If there were no other contract provisions dealing with this subject matter, the Arbitrator would have to agree with the Union that Management had no right to treat the grouping of Filers as a separate “department.” But a careful reading of the document entitled “Union Exhibit #3,” indicates that the parties recognized and agreed that Filers I,II,III and IV constituted a “Department.”

Effective on the first Monday following the date of Ratification, the positions in the Filing Room will be changed to the following:

The classification of Filer I will become the entry level position in the Filing Room. Consistent with the Labor Agreement, the Company has the exclusive right to determine the number of employees that may be assigned to each classification. The fact an employee may be qualified for any one or all of the above Filer classifications does not give the employee the right to progress to, or be classified in, a given classification. Only the Company can determine that a vacancy exists in or that an employee is qualified for and will be placed in any given classification. A line of Progression does not exist as such.

The sub-title of the document clearly notes “Filing Room” followed by “Green End Department.” Nothing in the document appears to establish a different department from the four listed in the collective bargaining agreement.

Based upon the evidence presented, my reading of the collective bargaining agreement and management exhibit 1 (purported to be Union Exhibit #3 from the 2004 case), I cannot find any violation of the collective bargaining agreement or any reason to compel the Company to recognize the Filing Room as a different department.

[1] OPINION AND AWARD issued May 13, 2004 at Tampa, Florida by Arbitrator James J. Sherman.

[2] Award. Page 8.

[3] Union Brief, Page 3

[4] Company’s Opening Statement.

[5] Black’s Law Dictionary, Seventh Edition. 1999. page 1414.

[6] Elkouri & Elkouri, HOW ARBITRATION WORKS, 5^th Edition, at page 608.

[7] Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 New Your 304, 306-307 (1929).

[8] 87 LA 40 North Star Steel and United Steel Workers of America, Local 7263.

[9] 93 LA 865 McQuayperfex Inc, and Sheet Metal Workers’ International.

[10] Todd Shipyards Corp., 16 LA 27, 28. (1977)

[11] Elkouri & Elkouri, HOW ARBITRATION WORKS, 4^th Edition, at page 428.

[12] Elkouri & Elkouri, HOW ARBITRATION WORKS, 5^th Edition, at page 626.