American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire

Transcription

1 American Arbitration Association Arbitration Pursuant to Agreement of the Parties Before Timothy J. Brown, Esquire In the matter of: : : IBEW, Local 777 : : AAA Case No and : : First Energy : : : (Re: Supervisors doing : Bargaining Unit Work) : Appearances: Decision and Award On behalf of IBEW; Charles T, Joyce, Esquire Spear Wilderman Borish Endy Spear & Runckel 230 South Broad Street, Suite 1400 Philadelphia, PA On behalf of First Energy; Timothy Hays, Esquire 76 South Main Street Akron, Ohio Summary of decision: For the reasons stated in the following Decision, the subject grievance is Granted. Dated: September 9, 2005 Timothy J Brown, Esquire Arbitrator 1

2 I. Introduction This arbitration arises pursuant to a May 1, 2000 Collective Bargaining Agreement between International Brotherhood of Electrical Workers, Local Union 777 (the Union) and Metropolitan Edison Company. 1 In its underlying August 28, 2003 grievance, the Union contends that the Company violated the parties Collective Bargaining Agreement by permitting Foremen Tom Dougherty to perform bargaining unit work on August 16, The Company denied the Union s grievance and maintained that its Foreman s performance of the work at issue was permitted by language of the Agreement allowing such in cases of emergency. The Union thereafter filed for arbitration pursuant to the grievance-arbitration provisions of the Agreement. The undersigned was selected by the parties to conduct a hearing on the dispute and render a binding arbitration award. The hearing was held on February 1 and May 26, 2005 in Wyomissing, Pennsylvania. At the hearing, the parties were afforded the opportunity for examination and cross-examination of witnesses and the introduction of relevant exhibits. A transcript of the hearing was made. Following delivery of the record, both parties submitted post-hearing briefs, upon the receipt of which by the AAA the record was deemed closed on August 8, II. Issue The parties stipulated that there are no procedural issues presented in this matter and that the following issue or issues are properly before the arbitrator for resolution pursuant to the arbitration provisions of the Bargaining Agreement: 1 In November 2001 Metropolitan Edison was acquired by First Energy and agreed with the Union to extend the May 1, 2000 Bargaining Agreement to April 30, The extended agreement is referred to herein as the Agreement. First Energy and its predecessor Metropolitan Edison are jointly referred to herein as the Company. 2

3 Did the Company violate the Collective-Bargaining Agreement when Supervisor Tom Dougherty re-fused 2 a cut-out 3 on August 16, 2003, and if so, what shall be the remedy? III. Contract Language One or both of the parties have identified the following provisions of the Bargaining Agreement as relevant to this matter: Article V Working Conditions 5.4(a) Employees shall not be required to work out-ofdoors in inclement weather unless such is required to protect life or property or to maintain service. They shall remain available and may be assigned to other related work as the Company may direct, with which they are familiar or can be readily instructed. This provision shall not apply to employees whose normal duties require them to work out of doors regardless of weather conditions. (b) In all work assignments covered under this Memo, good judgment and common sense must be exercised in assigning duties. (c) Moderate or heavy rain or snow are considered inclement weather creating harsh and severe conditions when the majority of work out-of-doors should be postponed and other work assigned indoors. The following are examples of work that should be performed out-of-doors in inclement weather and all other outside work should be postponed: -Emergency work -Normal duties of power plant operators, meter reading, switching, coal and ash handling, snow removal 2 Replace a fuse. 3 A cut-out fuse is a piece of electrical equipment generally in the shape of a square. One side of the square is made up of a fuse with a hinge connecting it to the bottom side of the square. The top of the fuse snaps into the top side of the square. When the fuse blows the snap connection at the top of the fuse is broken and the fuse falls away and hangs from its hinge. As a result, a line repairman can determine from a distance whether a fuse is operating or has been blown by observing whether the cut-out fuse is closed or hanging open. 3

4 -Loading and unloading of materials which cannot be handled in a sheltered area -Indoor work but which may involve minimal exposure to the weather such as walking from vehicles to sheltered locations, or between sheltered locations of a reasonable distance -Tasks necessary to fulfill legal or regulatory requirements -Power plant maintenance work necessary for personal safety, equipment safety or to correct/prevent loss of generation, providing all reasonable means of providing sheltered work areas has been expended 5.14 When it becomes necessary for the Company to contract out work of the type regularly and customarily performed by employees covered by this agreement, preference shall be given to contractors having working agreements with the International Brotherhood of Electrical Workers. Contracting out of work shall not result in loss of employment to the regular employee covered by this agreement Foremen and other supervisors of equal or higher rank, as such shall not be permitted, except in emergency or for purposes of instruction and training, to perform the work regularly and customarily performed by employees covered by this agreement. Article IX Grievances and Arbitration 9.1 A grievance is hereby defined as a violation of the law governing employer-employee relationship, or a violation of the terms of this agreement, or any type of supervisory conduct which unjustly causes any employee to lose his/her job or any benefit arising out of his/her job. 9.2 Should a dispute arise between the Brotherhood and the Company as to any unadjusted grievance or as to the rights of either party under this agreement, both arties shall endeavor to settle such matters, as promptly and timely as possible under the circumstances, in the simplest and most direct 4

5 manner. The procedure (unless changed or any step thereof is waived by mutual consent) shall be as follows: 1st: Between an aggrieved employee and/or member of the Grievance Committee of the Brotherhood and the Foreman or Supervisor. Grievance form to be filled out setting forth the nature of the grievance and a copy forwarded to the Brotherhood and the Company. No grievance shall be settled at this step unless the aforesaid member of the Grievance Committee of the Brotherhood is given an opportunity to present the case and is satisfied with the disposition thereof. 2 nd : If the grievance has not been adjusted in the first step within three (3) workdays after its presentation to the foreman or supervisor involved, it shall be referred for adjustment to the chief management representative or his/her authorized deputy in the operating area concerned. 3 rd : In the event the matter is not adjusted in the second step of this procedure within five (5) workdays after its presentation to the chief management representative or his/her authorized deputy in the operating area concerned, it shall them be referred to the Vice President of the Company or his/her authorized deputy, and the representatives of the IBEW Local 777 for adjustment. Representatives of IBEW Local 777 shall be the President/Business Manager and his/her designated appointees; but the total representation shall, in no case, be more than six (6) in number. An International Representative of the IBEW may be present at this step of the grievance procedure only to assist Local Union 777. A written answer shall be given within twenty-five (25) workdays after presentation. 4 th : All of the foregoing steps having been taken without a satisfactory adjustment of the grievance there shall be created, at the request of either party, a Board of Arbitration to be composed of one (1) representative of the 5

6 Company, one (1) representative of the Brotherhood and a third and impartial member to be designated by mutual consent of these representatives. If such mutual consent cannot be reached within ten (10) days after their appointment the third and impartial member shall be selected from a panel of qualified and neutral arbitrators supplied by, and according to the rules of the American Arbitration Association. The Board of Arbitration as then constituted shall consider the merits of question or dispute and shall render a decision thereon. A decision made by a majority of the members of such a Board of Arbitration shall be binding upon the Company and upon the Brotherhood for the term of this agreement. The Board shall meet at any time and place chosen by a majority of its members, each party bearing the expense of its own arbitrator and jointly bear the expense of the neutral arbitrator. 9.3 If step 4 is not initiated by filing with the American Arbitration Association within one hundred and twenty (120) workdays after receipt of the company s written answer, the grievances shall be considered null and void. 9.4 Employees acting as representatives of the Brotherhood may discuss grievances with the Company without loss of pay, but no employee shall be paid for the time spent in discussing grievances unless he/she is scheduled to work during the time in which the discussion takes place. No employee shall be paid for time lost, while acting as a representative of the Brotherhood during arbitration proceedings. IV. Evidence The Employer is an electric utility company providing electrical services in a number of eastern Pennsylvania regions including the York, Pennsylvania area. The Union represents a unit of all production employees of the Company. Linemen are 6

7 within the recognized bargaining unit and are covered by the terms of the Bargaining Agreement. Tom Dougherty, Supervisor, Regional Operations, York, is stationed in the Company s York Line Facility and normally has six to eight linemen report directly to him at any one time. According to Dougherty, 34 linemen work out of the York facility and all report to him at one time or another. Dougherty is a Foremen and other supervisors of equal or higher rank, within the meaning of Article 5.17 of the Agreement. During the afternoon of Saturday, August 16, 2003 the York area experienced severe thunder storms resulting in loss of electrical power to approximately 10,000 Company customers in the York region. In response to the power outages the Company instituted procedures whereby it requested on-duty linemen to continue to work, began calling in off-duty linemen and requested assistance from electric companies in other areas. By 6:00 p.m. the Company had attempted to telephone all eligible linemen at least twice and had left messages whenever possible that the Company wanted all available linemen to report to work. The Company also engaged a number of out-side, non- Company crews in the power restoration effort. During the storm restoration process Dougherty was responsible for (1) calling linemen into work, (2) monitoring the status of repair requirements by communicating with Company dispatchers and checking the Company s Power On Remote computer system, and (3) assessing and supervising in the field. Sometime after 6:00 p.m. Dougherty took a print-out of trouble spots and crew locations and went into the field. Dougherty decided to observe 911 call-identified trouble locations closest to the York 7

8 Line facility and stopped first at the intersection of Route 74 and Church Street where he observed that the traffic light was not functioning and Fire-police were directing traffic. Dougherty noted that residences in the area had power and determined that the power outage was specific to the traffic light. He then looked to the transformer on a nearby power pole and observed that that cut-out fuse on the transformer was open. The transformer and cut-out fuse were approximately 35 feet above the ground. Dougherty then obtained a new fuse and an extension pole (referred to as an extend-o stick ) from his vehicle and using the extend-o stick removed the burned out fuse and snapped a new fuse into place. The repair took approximately fifteen minutes and resulted in the restoration of power to the traffic light. Dougherty then spoke to fire-police personnel at the intersection and claims he was told by the officer that the fire chief had asked if Dougherty could go to a location where the department had one of its trucks pumping water out of residential basements. 4 Dougherty then drove approximately fifteen or twenty minutes to the identified residential development (named Rainbow Circle), notice an open cut-out fuse at the entrance to the development, located the fire truck within the development and spoke to the fire chief. According to Dougherty, the chief explained that residential basements were flooding and asked how soon power could be restored to the area. Dougherty then inspected the pad-mount transformers in the development for noticeable damage. Seeing no obvious problems with any of the transformers Dougherty attempted to close (re-fuse) the cut-out fuse at the entrance to the development. When Dougherty locked in a new fuse the fuse blew, causing a flash and a loud noise. His attempt to restore power to 4 There was no evidence submitted suggesting that the residential basements were on Dougherty s list of trouble locations. 8

9 the development unsuccessful, Dougherty contacted the Company dispatcher and reported that the fuse had not held and that the underground system in the development had to be inspected for damage. The next day the Company assigned a two-person crew of Chris Siford and Rick Miller to troubleshoot and repair the Rainbow Circle development s underground system. Crew member Siford testified that he and Miller arrived at the development sometime in the afternoon and were met there by Supervisor Dougherty. The crew members observed the open fuse at the entrance to the development, and according to Siford, Miller asked Dougherty if he had done any work on the riser where the open fuse was located and Dougherty replied that he was not aware of doing anything at that job location. Daugherty then left and the crew proceeded to work on restoring power to the development. Siford explained that during the afternoon at the development he and lineman Miller were told by a customer that someone had attempted to close the fuse the evening before and described the person as having the same type of vehicle as driven by Dougherty. Power was restored to the development sometime in the afternoon of August 17, Siford has worked for the Company for over 19 and one half years and stated that it had always been the job of bargaining unit linemen to restored power. Dougherty testified that he never denied attempting to refuse the cut-out at the entrance to the development on August 16, 2003, but further admitted that he did not brag about doing the refusing work either. Daugherty explained that he did not want to incite or upset anybody. Dougherty further testified; The work is what I would rather the Union people be doing, however we had no crews available, and with the situation determined that it was enough it was a situation 9

10 that we could take immediate action on with what I had with me. Q. You knew Mr. Dougherty, that the Union was going to be upset about this didn t you? A. Yes. Certain guys are not going to be appreciative that I was in the field re-fusing the cut-outs. Dougherty testified that as a supervisor prior to August 2003 he refused cut-outs in a storm situation two or three times; including once in 2002 which resulted in the Union filing a grievance. According to Dougherty that 2002 grievance was not pursued by the Union after the initial steps of the grievance procedure. In contrast, Union witnesses asserted that the grievance was settled by the parties. Dougherty also admitted to doing similar work two or three times since August Union witness Dave Wilson testified that he has worked for the Company for twenty years and that in his experience supervisors had extend-o sticks in their vehicle in order to kill power at car pole accidents or in life or limb situations; not for purposes of restoring power. 19 year employee and Union witness Wayne Browning testified that he has been chief Union steward for almost four years and that he was involved in a similar grievance in 2002 involving Supervisor Tom Gross. Browning asserted that management was in agreement with the Union on the matter and that the 2002 grievance was settled with the supervisor being warned not to do such work again. Browning also testified that prior to First Energy buying the company in 2001, the type of emergencies that were referenced in 5.17 of the Agreement permitting Supervisors to perform bargaining unit work was possible loss of life or limb or an entrapment in a car accident or fire, along those lines. 10

11 Since the First Energy purchase, Browning testified, the Company has taken the position that a storm is an emergency allowing supervisors to perform unit work. Rick Miller testified that he recalled at least five incidents from 1993 to 1995 where the Union grieved supervisors performing bargaining unit work and the Union considered the grievances settled when management agreed with the Union that supervisors should not be performing such work. Union Business Agent Michael Gabner worked for the Company from 1974 until he became Union Business Agent in Gabner testified that the language of Section 5.17 of the Agreement has been the same for his entire experience with the Company and that the use of emergency within that provision has always meant potential for loss of life or limb. For example, Gabner explained, a downed live wire could constitute an emergency or a threat to life or limb under certain circumstances, but such may not be an emergency within the meaning of 5.17 once the downed line is de-energized, or the area is secured by police or fire. In either instance, Gabner further explained, the work would be considered emergency work within the meaning of Section 5.4 (c) of the Agreement because it would continue to be a priority for bargaining unit employee attention. Emergency in 5.4 (c) and 5.17 is not the same, Gabner pointed out. The emergency work as discussed in 5.4 (c) is work to be performed by Bargaining unit members, whereas the emergency work referenced in 5/17 is work that may be performed by supervisors. Company witness, Brian Lachman has been York District Operations Manager for approximately five years and disputed that the Company has ever interpreted 5.17 as limiting emergency to situations involving risk to life or limb. Lachman asserted that 11

12 emergencies are determined on a case-by-case basis. Lachman testified that the Company had an unsatisfactory bargaining unit response to its call-out request on August 16, The Company contracted with more than nine non-company repair crews to assist in restoring power outages. The outside crews finished their trouble calls sometime between 9:00 and 11:00 p.m. August 17, Lachman admitted that under normal circumstances re-fusing a cut-out is bargaining unit work, however the limited availability of resources on August 16 was one factor legitimately considered when assessing whether an emergency existed within the meaning of In his view, factors to be considered when determining whether supervisors may work under the Agreement include: (1) public safety; (2) available resources; (3) damage to customers and (4) hardship to customers. Considering these factors, Lachman opined, Dougherty was permitted to perform bargaining unit work on August 16, Lachman is aware of no other supervisor performing such work during the August 16-17, 2003 power restoration effort. Lachman recalled that the Union filed a grievance relating to Dougherty performing storm related re-fusing work in 2002 and that the Company took a position in that case consistent with its position in the instant matter. In 2002 the Union did not pursue the grievance and thereby, Lachman claimed, accepted the Company s position. Lachman was also the Company representative at the step one/two grievance meeting on the instant matter. Lachman reviewed notes of the meeting taken by Supervisor Daugherty and testified that the notes accurately reflected what he said at the meeting. Those notes indicate that when Union representative Browning stated; During the last 12

13 grievance we agree that life or limb is the only time Supervisors should do work. Lachman responded: -I don t recall putting it like that. Streetlight tickets are (what are we talking about) Aug 16 we had lots of outage tickets we ran the list to get guys to work. We had contractors in to work. We were getting all the help to restore customers, with that we feel that we can utilize Supervisors. The Union s representative then asked Lachman what is your definition of emergencys? (sic) to which Lachman responded: -Life or limb on normal work. During Storms we may utilize supervisors to do work. Union will be given the opportunity. Company Human Resources Regional Director Kenneth Peters has attended third step grievance meetings since about 1986 and also does not agree with the Union s interpretation of Peters testified that he searched the Company s records back to 1965 and found twelve grievances referencing 5.17 wherein the Union did not dispute that Company s answers to the grievances. Five of the grievances were filed in 2002; one in each year of 1985, 1983 and 1982; three in 1981 and one in Positions of the Parties Union The Union acknowledges that it carries the initial burden in this case. However, the parties differ on the parameters of the Union s burden. The Union asserts that its burden is simply to show that the work at issue here is normally and customarily performed by the bargaining unit, and that once such is shown the burden then shifts to 13

14 the Company to establish by a preponderance of the evidence that work performed by Supervisor Daugherty fell within the 5.17 exception. Here, the Union argues, it is undisputed that the work of re-fusing cut-outs is normally bargaining unit work. With that, the Union continues, the burden shifts to the Company to show that the work performed by Daugherty on August 16, 2003 fell within the contractual exception; a burden the Company failed to meet. The Union asserts that credible testimony by its witnesses established that the parties have historically interpreted 5.17 to permit supervisors to perform bargaining unit work only in cases of threat to life or limb or similar circumstances. In such regard, the Union argues, the Company s own witness Operations Manager Lachman - admitted that an emergency within the meaning of 5.17 does not arise merely because a storm causes loss of costumer service. Nor does it depend upon the response of unit employees to Company requests to report for storm restoration work, the Union urges. In this latter regard, Company witness Lachman admitted that had the company received a 100 percent response to its all-call of August 16, 2003, the Company would nevertheless have had to call in out-side contractors to assist with power restoration. The union also asserted that the testimony of Supervisor Daugherty concerning fire department requests for his assistance should not be credited because such was never raised by the Company until the arbitration hearing. The Union also disputed the Company s claim that the Union s failure to pursue past grievances on 5.17 to arbitration amounted to acquiescence in the Company s position on the meaning of the provision. Rather, the Union asserts, the Union did not pursue the grievances to arbitration because of informal settlement representations that the Company would abide by the Agreement 14

15 and direct its supervisor to refrain from performing bargaining unit work. At best, the Union concludes, the number of past grievances identified by the parties underscores the need for arbitral guidance on the meaning of The Union asserts that the appropriate remedy in this matter is a cease and desist order and indefinite retention of jurisdiction by the arbitrator to assure compliance with such order. Company The Company argues that the Union must affirmatively establish by a preponderance of the evidence that its interpretation of 5.17 is that agreed upon by the parties, and that the Company violated the Agreement. The Union failed to meet its burden. Nowhere in the Agreement, the Company asserts, is the word emergency defined in the narrow manner promoted by the Union; threat to life or limb. Rather, the term emergency is defined in Article 5, the Company maintains, where 5.4(a) states that employees shall not be required to perform work outside in inclement weather unless such work is required to protect life or property or to maintain service. 5.4(c) then ties the phrase required to protect life or property or to maintain service to the word emergency, the Company argues, by identifying emergency as one of six categories of work that should be performed in inclement weather. Thus, the Company asserts, rather than the narrow life or limb definition asserted by the Union, the Agreement defines emergency more broadly to include protection of property and maintenance of service. Assuming for purposes of argument, the Company continues, that the reference to emergency is deemed ambiguous; the arbitrator is bound to apply the ordinary meaning 15

16 of the word to the circumstances of this case. No generally accepted definition of emergency limits its application as the Union claims to circumstances of threat to life or limb. In the Company s view, the Union s failure to pursue past related grievances to arbitration establishes its agreement with the Company s consistently proffered definition of the 5.17 emergency exception as existing where no bargaining unit personnel are available and there exists a risk of harm to person or property or customers need to be restored to service. In the circumstances of the instant case, the Company argues, supervisor Daugherty s conduct was within the 5.17 exception. Thus, no bargaining unit personnel were in the area, the non functioning traffic light had been identified as a 911 emergency, emergency personnel were on site and the safety of the emergency personnel as well as the public was at risk. Similarly, in the circumstances of the Rainbow Circle development, Daugherty was informed by emergency personnel (the Fire Chief) that residential basements were flooding and property was at risk, and requested to attempt to restore power to the area. These are clearly circumstances within the Company s historic interpretation of a 5.17 emergency; an interpretation to which the Union has repeatedly acquiesced in the grievance process, the Company asserts. Finally, the Company argues that there is no support in the parties Agreement to arbitrate or in arbitral law for the Union s request for continued jurisdiction of the arbitrator to enforce the Union s interpretation of the Agreement. In the event the Company is found to have violated 5.17 of the Agreement, the Company claims, the appropriate remedy is to make whole the bargaining unit employee(s) who lost work as the result of the violation. In addition, the Company argues, in the circumstances 16

17 presented here, any such loss would be trifling and, as a result, the grievance should be dismissed as de minimus. Discussion Burden of Proof This case is not one requiring strict adherence to any one theory of burden of proof. The parties have agreed that they have a dispute and that the dispute is to be resolved by the Arbitrator. Although it is true that if the record does not support the Union s claim the Union s grievance must fail, considering the underlying principals and goals of labor arbitration, the parties share the burden of providing the arbitrator a clear view of the issues presented and relevant facts; a burden the parties have met. Re-fusing Cut-outs is Bargaining Unit Work There is no dispute that under normal circumstances, re-fusing cut-outs is bargaining unit work. The issue here is whether Daugherty s re-fusing of cut-outs on August 16, 2003 was permitted by the 5.17 emergency exception to the general prohibition on supervisors performing unit work. In reaching a resolution of this matter I have carefully considered the record as a whole and weighed all of the evidence; giving greater weight to that which is most reliable and relevant. Based there upon, I find that the evidence establishes that the work performed by Supervisor Daugherty on August 16, 2003 was not within the 5.17 exception. 17

18 The Parties Have not Previously Resolved the Dispute The Company and the Union presented conflicting positions and evidence relating to past interpretations of the 5.17 exception by the parties. Thus, the Union presented prior grievances where it claims the Company agreed upon the Union s interpretation of the exception, and the Company presented prior grievances where it claims the Union agreed upon the Company s interpretation of the exception. I am not persuaded that merely because the Union failed to pursue grievances to arbitration that the Union has acquiesced in the Company s interpretation of the 5.17 exception. Nor am I convinced that simply because the Company agreed to resolve past grievances that such unassailably establishes that the Union s proffered interpretation of the provision is the correct one. In either circumstance the parties may have had assorted legitimate reasons for exercising their wide range of representative or business discretion in resolving their various disputes. The conclusion I reach based upon the multiple examples of similar grievances presented by the parties is not that the dispute has been resolved one way or the other. Rather, such evidence has lead to the opposite conclusion; that the issue is in need of resolution. The Meaning of Emergency Contrary to the Company s argument, I do not find that the Bargaining Agreement provides a non-ambiguous definition of emergency. Article 5.4(a) states that employees shall not be required to work out-of-doors in inclement weather unless such work is required to protect life or property or to maintain service. (Emphasis added.) The Article then proceeds in subparagraph (c) to list six examples of work that 18

19 should be performed out-of-doors in inclement weather. Only one of the six examples offered is emergency work. Within such context, each of subparagraph (a) s disjunctive references to protecting life, maintaining service or protecting property do not necessarily have to apply to each and every example listed in subparagraph (c). The Company correctly asserted that the usual and ordinary definition of emergency should be considered when interpreting the parties Agreement. In my view such ordinary understanding of the word considered within the context of the parties past conduct offers the most useful evidence of the parties intended meaning of Ordinary Meaning of Emergency As offered by the Company, definitions of emergency include: (1) A serious situation or occurrence that happens unexpectedly and demands immediate action; (2) an unforeseen combination of circumstances or the resulting state that calls for immediate action; (3) Something dangerous or serious, such as an accident, which happens suddenly and unexpectedly and needs immediate action to avoid harmful results; and (4) A serious situation or sudden crisis, usually unforeseen, that requires immediate action. 5 The common character of all of these definitions of emergency is the presence of circumstances demanding immediate action. Thus, an emergency in the commonly recognized sense of the word is not a circumstance that may be effectively addressed now or at some later time. Rather, to constitute an emergency, the circumstance is one that must be addressed immediately. 5 Citing The American Heritage Dictionary of the English Language, Forth Edition, Houghton Mifflin Co; Merrium-Websters Dictionary of Merrium-Webster, Inc.; Cambridge University Press, 2004 and Wordsmyth.com respectively. 19

20 Conduct of the Parties Conduct by Company representatives establish that the Union s proffered interpretation of the 5.17 exception is closer to the intention of the parties than that proffered by the Company. In this regard, both supervisor Daugherty and Operations manager Lachman gave testimony supporting a narrow interpretation of the emergency exception. Daugherty testified that he did not brag about the work he performed on August 16, 2003 because he knew certain linemen would object to his performing such work. Such conduct by the supervisors reflects Company recognition that (1) the Union would not likely consider the work Daugherty performed on August 16 to fall within the 5.17 exception, and (2) that the issue had not been resolved by the parties. Perhaps even more telling of the intention of parties, however, is the testimony of Daugherty and Lachman relating to Company statements at the first/second step grievance meeting on this matter. Both Daugherty and Lachman testified that notes taken by Supervisor Daugherty accurately reflected the Operation Manager s statements at the meeting. In those notes Lachman is reported to have stated that he defines emergencies under 5.17 to be threats to life or limb on normal work. He then goes on to state that during a storm the Company may use supervisors to perform work and will first give the unit the opportunity to perform the work. Lachman s grievance-meeting definition of emergency recognized the legitimacy of interpreting the 5.17 exception to mean situations involving threats of significant physical harm to individuals. However, his distinction between emergencies in a storm situation and emergencies in other situations is not supported in the language of the 20

21 Agreement or in the common usage of the word. If an emergency exists, it exists regardless of the weather. Considering the record as a whole and most particularly relying upon the language of the Bargaining Agreement and common usage of the words therein, I find that the parties intended the emergency exception contained in 5.17 to be a narrow one; limited to the immediate action, and only the immediate action, necessary to address and/or neutralize threats of instant and serious harm to persons or property. By its very nature, the 5.17 exception contemplates the exercise of judgment under circumstances affording little time or opportunity to reflect and, consequently, should not be interpreted to require perfection in the exercise of such judgment. It is in no ones interest to discourage good faith efforts to address urgent threats of harm to persons or property. However, in exercising such judgment, it should be recognized that an emergency within the 5.17 exception does not exist where immediate action could further the interests of the Company s enterprise but is not required by the circumstances. Daugherty s August 16, 2003 Work was not within the 5.17 Exception When Supervisor Daugherty went into the field on August 16, 2003 he came upon two situations where he could address, or attempt to address problems and thereby further the interests of the Company s enterprise. However, the problems he addressed or attempted to address were not emergencies as intended by the parties in Although the traffic light Daugherty re-fused was not functioning, the circumstances were not such as to demand Daugherty s immediate action. Thus the situation was under control; firepolice were directing traffic. Although a member of the fire-police may have asked 21

22 Daugherty if there was anything he could do to restore power to the traffic light, such was a natural question for the fireman to ask an employee of the power company. Nothing in such a natural inquiry established that the fire department could not control the situation until a line crew arrived to fix the light, or otherwise reflected a set of facts demanding immediate action. Similarly, it was perfectly natural for the Fire Chief to ask Daugherty when power would be restored at the Rainbow Circle development. However, such does not reflect a demand that power be restored immediately or establish the existence of an emergency. In fact, Dougherty s own conduct reflected that the situation there was not an emergency. Had the situation truly demanded, required or called for immediate action as contemplated in 5.17, Daugherty would have responded to the situation in an urgent manner. He did not. Rather, when Dougherty s attempt to fix the problem the easy way failed, rather than exercise his supervisory discretion and attempt to arrange for a full crew to service the development in a period of time reflecting an urgent need, he was satisfied to simply phone the dispatcher and add the development to the long list of locations in need of service. As a consequence, the Company did not assign a full crew to service the development until the following afternoon; conduct inconsistent with its claim of an emergency. The Contractual Violations Were not De Minimus The instant dispute may not fairly be dismissed as frivolous. The issue presented by this arbitration has been repeatedly raised by the parties over a period of years and not resolved. The Evidence established that the Company s Supervisor performed the work at 22

23 issue under similar circumstances on other occasions prior to, as well as after, August As a consequence, there is no reason to believe that in the absence of a ruling on the instant matter the Company will not continue to perform such work in the future. Moreover, the issue raised by the grievance; the preservation of bargaining unit work, is of fundamental importance to the unit and is not of a minor character. Remedy It is well established that Arbitrators have broad authority to order remedies appropriate under the circumstances of individual cases and consistent with national labor policy. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). In the instant matter, the Bargaining Agreement contains no limit on the remedial authority of the arbitrator and the parties stipulated in their agreed-upon description of the issues presented that in the event a violation of the Agreement is found, the arbitrator is to determine what shall be the remedy. Considering the nature of the dispute presented by this grievance, and the underlying national labor policy of promoting the resolution of disputes through arbitration, I am convinced that a cease and desist order is necessary to realize a complete and final resolution of this dispute. As a result, I am ordering the Company to cease and desist from violating the emergency exception contained in Article 5.17 of the Bargaining Agreement by permitting supervisors to perform bargaining unit work in circumstances other than those requiring immediate action necessary to address and/or neutralize threats of instant and serious harm to persons or property. 23

24 Having issued a clear statement of the contractual violation found and ordered a complete and final remedy of the violation, I find that an indefinite retention of jurisdiction over the issue by the arbitrator as requested by the Union is neither appropriate nor necessary. DATED: September 9, 2005 Timothy J Brown, Esquire Arbitrator 24