L791 Decision - Pyle Rome Ehrenberg PC

In **it.O., i6ttor.of firtiitkiken hetwerii
:..$04*$i.S:V.PL'IRMARKM.;.ING; • .. .
•AAA Case Numbei 11 300 91564 .13
The •Colwaily..1'(„i0..1041Aittic10, .1.„2 •d Aiticle, 19 a. .0.10:201.3 •2017 Collootive
Bargaining Agivnlenit W:tion
„ it unilatorally laid off Maintenance EnvloAos 1111111.111,
and 1111111011111111., effective., 1)occtribQk 1, 2013. The parties 4411 have 90: days10
04.0,4 4:. xxydo.oty...4000robj.6 r.66.100y.'3:•.:Ifno agreernoig .4 roaohe4thio Arbitrator will
pad .-aroin6.4. :,e)
. Robort 114:• ()Trion, Mg.
Datc:1; April 13, 2015
In the matter of arbitration between:
:AAA:Case:Nunibei: • 11.:360.1010418'...
: ciiovoco .Efiiniix:aff041 . 0f.00.:.M:4100:10.0k.0:. :)pp4ttitOra. .
For UTCAVI,j. LOCal 791:
Tod A'. Cochran, Esq.
Pyle, Rome Ehrenberg, )C.
,For Shaves Supermarkets, ,Ine:
Robert p. Joy, Esq.
Morgan, Orown a. joy, LLP
As :franted by the ,arbitrat -or,:the following issues must be decided herein:
Did the company vtolgq:1110.20.15.
IT Cp1Wvq. .
Bargaining Agreement when it eliminated to 'Maintenance
:Department effective Deeenibr 1, 2.013?
If so, what shall be the remedy?
f411.41me.e.inti1.OYee.s 1.4ia (tff
Of.:10.42of *otk.:*116n. no othei, full
time work is avam1abe shall be 411.9wocl to bump by semouty
Full time Employees-
laid-off because of lack of mirk when no other full-time work is available shall be
offered part-time work at the applicable rate thereto •
ARTI CL E' 1 0
A. Maintenance Provisions:
,4, A. ,MaintenanceEinployeeS.shall have a:separate Seniority
unit; Eipployoosin.maintenatee.aS,.0 July 21 , 1979 will haye 'thpfy
•date of
as their seniority dte, Employees entering. the
Maintenance Department, thereafter, shalt have tha date Of entry as
their seniority date; This seniority is f.c.).:i.compotitivd-jAirok.611)
(Choice of
vacation, :day'-tiff)
•$...:TheAkork, Week for•Maintenance E mp l oyees•hh:e cl or• • .
•(• , •il.*:hot.go:oet:*ek-,.:fiy:o, (5) .4y$..time 4114
(1,4) after
,eight (8) hours 11.14daY forty 4O) houis in a week, thirty-two (32)
and twenty-four
hOitis in. Week. with
two ,M.holido8f....
. holidays. Moatet019q ,
or appoiri,tedafter
July 26, 190. shall work eight KhOJO!.0:4m:foo (40) how a•
weO14. 014y079;:041.1out$. :14:46)liao,** -:ttAttyqat 'PO. • •
hours, in !•4.,:•week. with two (2) honk*. Tho.Thilbhggites:16 arkimt
140:comppyto . offor.4.4 da 10 hour per 4.4y . work woOk schedule
'existing Maintenance EinpIoyees:,.o4 a voluntary -buts .onV - .
New hires itt.fh&MaintenanCe netialitnent may be scheduled op. a week schedule, .:(7ncea: new hire is put'4:daylbhonkperw
on thi 4c 1Q 014060,4v vat Shift,will be ellininated in the
aintienancePepartment.,„i,,,, - • • " •
. • ..
• • r • •
11, • 'The parties agree:that :4 current Maintenance Employe es
- • vacate theit: positions: they will not be replaced. • •
. .• •.
The Employer retains the sole *I to manage its business
• includin g, without restricting the foregoing, the rights to
decide the functions to be POlforrned the method of
operations, , to lay-off, recall and transfer Employees for ,
legitimate business reasons , • . subject only to such regulations and
restrictions governing the axeroise of these rights as are expressly
provided it this Agreement.
Outside Contracting
. .
,,I1A;POinpanyagr.00 .to:1`.011,0*.:*tn
:c r. .e.t*PrOtiejtiregardSto
workfor;a*.lttenanco-;40partingit persoinel, .hnt,the.
Vnion:•aelcnOwleriges'that. the may be:tithes ''vh`eif:..84-OUtside,
- • .icontraCOb'eld-UPi:atg.OfSelnid:•'
SliaW'S,'Suparinarkets Ito. (hereinafter referred as Shaw's Or the dotomy):
'operates appreklinately 155 retail stores: and :several warehouses
The .
retail stores are Operated tinder the banner 0 C "Shaw's Supermarkets" and "Slat Market?'
In March 201i,' the Company was purchased by New Albertson'S.1.1C.
The United I'Jood and (opamercial N,Vorlers Union Local 791 (hereinafter
referred to as the Union or LOcal 791) . represents approximately 3000 full-tithe and parttime employees who work at Shaw's stores in Tour Massachusetts counties,' the state of
Rhode bland a warehouse in East Bridgewater, , Massachusetts and seven Maintenance
Department employees..
The dispute at hand involves Shaw's Maintenance Departinetit employees Who
serviced the Company's southern region stores, 41allaing. the non,union :stores and the
.stores where employees are represented by Local 791, Until the Maintenance
Departtnent w.as eliminated, effective December 1, 201j„ there were 17 non-union
employees in the Maintenance Department 44 seven employees who have been
represented by Local 791 since the 1960's,
• Pt•
flye of the 'seven ;bargaining %mit lvlaitit,Oarice•:Et ..lp.16,yees:PrinaiitY'Se.rlieed:
• •
, 'refrigeration :units •and're'.cioters: at retail stores. TheY:;arelieened" -:Aefrigeration:
Tbe Othef..1W.6.,:eirip.10Y,e0 Wee:g.eneral:Nle.ehati4
: wbO ., performed general
at Shaw's
.store 'frotl epairirig floor tiles to plumbing.
Each Refrigeration Mechanic had primary responsihiliry for: .$4aw's stores it a
certain geographic area. They also served as a backup for adjacent geographic areas if
the primary employee was unavailable to 'respond to a service call,
The Maintenance Employees worked :a regular 42 hour work:week, which
included two -hours of:oyertitne: The Company used outside vendors to :augment the
Mainteriatice:Department EmpioyeeS., According to the COmpOly., Outside vendors
responded to over 60%. of the service , calls for its southern region stores. The ,seven
Maintenance Employees also worked 'considerable overtime,
Management 'prioritizes, service calls, -A priority 1 serviCe . Mil Must be responded
to immediately,::. Apribrity.2 Call must be:restionded.,to• by the .end of the day, Priority 3.
" •.•
• •. " • • : • . • . .
• eall can usually wait .,for between 24 ..and 4,8 ':hours,
Maintenance Employee who .
primarily serviced the store from *elite ealtematated•waS 'unable • to respond to the
064 analor Witallanee• Employee was given the call If o. Maintenance: Employee.
was available,. the service call *8 given to an outside vendor;
After Albertson's purchased the Company in March 2013,. the new Shaw's
:President directed 111.111mg. the. COMpaty's Direct& of Maintenance, : to tevieiv.all
:W. determine if it was :economically feasible to .
aspects of the Maintenance Department
continuo operating the Oepartrnent. According to the new President, "we are in the
• grbeety:buSitiesS, not the Inaintenatiae business...P. -=
maitombe Einplayeeg hired Or appointed after July 26, 1985,'work ,A tegolg 40 hour work week,
irc•stiPvi of th .tY/4fAte.naA6Q r.)epartment , waS:progresSing y .the
parties Were in negotiations for a•sno.cessor Co11666e Bargainifig .,Agrieenietit to the 2008
- 2013 Agreement that was due to expire on August 2013 . NPgoOlations1Vgan on .11-1AP•
10.52013, and Ooneluded on Angnst • 2; 413.. ManagenieriespriMaty Objective in the
negotiations wag to gain greater flexibility to assign. General Duty Clerks in its stores,
Store managers were psoaily not .permitted to assign General Duty Clerks to different
departments .0XQqt h an emergency, T hp Company wanted to ternove that restriction
and give store managers more flexibility to , assign General •.f,) Ity Cleric's between
departments Within a. Store.
Both parties ,agree that there `Wag very limited discussion of the Maintenance
Department during the negotiations; NeVertheiPss the Company did make several
proposals that impacted. th'9. Depi.tmord.. :Pot instance, Article l2 Section B, in
2013 Agreement provided, in pertinent part, that:
Fulltime employees' laid off because of lack
. other
. . . . ;work available'Aga allowed to
bto101.■yonibrii - .tho least Senior employee in a :ilower
rated . clasflcation• • "
dJune 1. 0, 2013, the got do of negotiations, the Company proposed to rprnoyP .
the :language 4`.-;
lack pliwork when no other full time wok is available,"
The Union ..rejected the :proposal.
• The Company agrees that this proposal was .intended .0'44406 g,4optsion by
Arbitrator Arnold Zak4 dated June 15, 2005, involving the parti.s.' 2001 ,.2004
Collective Bargaining Agreement. Article! 12, .Section B , in that Agreement 18 i0elltiC01
to the above
4tpc*d language in t he 2008 2013
Arbitrator Zack found that •
bar94iiiing unit employees : can only be laid off 41.te
ack await., Arbitrator Zack
ordered the affected employees to be rode whole for earnings .164
On June 10, 4.114.0mp.o.y.
c o)
. . . . • 19. , (MWrdem
by addlog.a . norgootio.:4:4ifcafts.::
27. • Proposed
. . . Phange.
. .•
. ny. 0'04• PO
. toprovid4for. 1.4 Atatten.011,0
. •.
.1.10,43!:, the,
th e COnpanyinay:u ttlizethe,thirdpartkeompany'.s:
•:s.orvioesj.Win... ottilenzin'oioiOr. e0o*,' ,..0.-4."hoi.,:folo.4
Aro: qbove .every effort will b e made to provide regular
:empl oyment. before - th0.1*drkits:pojfewtoctook . The
(!ompuo, ..14.q.11. discuss work (0 be Ontrapte..04i with tho•-•
Union Prior and provide tfio.Un'tokthoppportanitty..4
:provide .alternative rnethads-topOefoot the.:iyo.r14 )2411121.4g,
katgo64#kilidt -10.000,;..:..TIA• Areemcnt does not alter
any existiktg sub.- dontr 404 woricl.hdt is currently b elog
': ..perfOrnied
This dowenent.00mpRthents; any Other .,.agreeitiehtk Made
between the art1es on the subject, ofiWbootaiotipti
• • ;!, •
The .Colitpany, eontendsthat:it made this ,proposal to gain more tlexiNity
use outside contractors
mintotl'onm'arlditp.**Ork at its stares. The Union
reieet6d:the..*.opoo: a1,.
• On hue t0;•2011,. the .Corripany also proposed to elhnivatetp:t99.4 Side •
Agreement regarding e.4tside.eoti.tr.401.nglitholOnteanee•Depattnieht and to
substitute 4 new sentence. The Side Agreement would read:
The Company shall, have the right to utilize .outside ,
contractorsfor (is vaintenonee , needs.
The I3nion ' .41soE rejoefed, this proposal,
As noted above, there Was little, if any,' discussions about these proposals shape
the paeles. were preoccupied With the matter of the General Duty Clerks. The Coopagy
withdrew all threo•PrOPOsals'onngnSt:I;:.:
• ••,
• %. •• .„.20.13;.
. • .• • the last.4. aY
• .of fieptiatiOns,
•• •
did 4#e0 to 8119W company proposal
add'the following sentence to: Miele 19.
IL The patties agree That as .current ganteiVoco
Employees vooaki their pnsltiolo they will . 1,2,ot. be e'epoel,„
•On August
Collective Bargaining •
Agreement Based, on the above addition to Article 19, the Union assured the seven
.. •
Maintenance Departrnent Employees that they would not lose their jobs for the duration
of the four year contract. At their departmental ratification meeting, the Maintenance
Department Employees ratified the Contract,
In October 2013, gervesseempleted his review of the Maintenance
Department. His review revealed that between 60% and 10% of 'service Calls to the
southern tni,Qn ,stores wel. e• completed by outside yendoi s.
recommended that .the Maintenance
of this, Mn Mil
Department be eliminated ghod It viro,:ilOt financially
feasible to cOritiriii.6 the in-house Department, . 'Upper management adopted his
Ott.NOvein-bor. 11, 2013,. the Union was notified that the Maintenance Department
would be abolished and that all 24 positions in the Department would be eliminated,
effective Decemb er 1, 2013. A contentions meeting was bold with the employees on
November 12, 2013, where Mr. gni explained the Company's :decision,
11111111111 arranged for the 24 Maintenance Department employees to be
interyievved by vendorgthe Cornpn4 intended, to . use for the service calls in the ,southern
region stores. The Company has maintenance service agreements with five vendors who
service the refrigeration and cooler units and perform general maintenance in the stores
formerly ,80rvioect by igaintetialioe Department EtnployeeS The VOA(lotg also serV106
other stOres.
41111111111111was hired by:HtisSinan Service
Corporation, one of the Vendors retained by Shaw's to respond to service calls regarding
refrigeration in the southern region stores, 111111111101111 and
by another vendor, Duquette 5.4 Sons. And
who services Shaw's
were hired
was hired by a third vendor
also obtained
ISon diort tprnj cflsability
On November14,2.01,...the'Unionflled* .grievanee protestingihe;COMpany's
=purported improper s ubcontracting of Maltitenane e. :Wor6rS- jobs and the to.y off soen.
bargaining unit employees in violation of the -just c' one-laded ,Collective Bargaining
Agreement The Union requested that the Maintenance Wci*OtS , be reinstated and be
made whole in every respect. The parties Weed 0 prO0eed4iTeetlY to stop three of the
grievance procedure. The matter could not ne 'resolved and the Union appealed itto
The Union also filed an unfair labor practice &a-1'SO with Region I. of the National
Labor Relations 13oard: (NLRB) on November 12, 2013i claiming that Shales violated
the National Labor. Relations Act when it unilaterally eliminated its Maintenance
Department and laid off Kcipn' bargaining unitt employees without notice to the Union
and an , opportunitY to bargain to'iMpasg6. The Union Antler alleged that the Company's
conduct also repudiated the . parties' recently negotiated collective bargaining :agreement
On Deceinher
,201 3 the NLRB: •deed the unfair labor
arbitration puoliatif to its conior
Hearings were held before the undersigned Arbitrator On July A .2014 ;,pel.
JanuarY12, 2015, The Union and the Company.stibinitted
-pest-hearing briefs,. BaSed on
„ .,',;
the plethora Of evidence and arghti4.erits .advaneed by the Union and, the Company this
Arbitrator heroby.renderS the following decision,
What must be decided heroin is whether :the SovenlViaintenance Employees. were
laid off' offet.tiVe•T)ceerriber .1. :20.13..,. and.:ifthey.• . We.relaid..Off waS it.becattseOflaek of
work If they were not laid off because of 4 lack of Werk,.then their layoffs violated
Article 12 (Seniority) of the 2613 . .72017 Collective Bargaining Agreement and they are
entitled to a remedy.
The Company's :teasorting that the grievants were not 'laid off boddoo it •
. pilithiate a function (ift,hott$OftiohltoftatioO)':i4 .41fficolttO•follOw.. Regardless of the
teaSOri, goVoti bargaining . 'oat ;04340og bat their jobs at Shaw s. They :loath* work;:
•wages,benefitS•and:etherE.errioluments,.eemplOyrnent 13y 411y- rhea:atm.. this was k
The 2005 .deci$ion of Arbitrator Arnold Zack is applicable to the grievants, In
that grievance, haw's wanted to rebalance its ratio of full time and part-time bargaining
unit clerks.. That decision resulted in the elimination of 205 clerical positions, Fifty-eight
(58) clerks were laid off and the remainder accepted part-time positions,
Arbitrator Zack rejected the Company's argument that its decision was
perrnissible:under Article 2.1 (Management) of the 'parties' 2001 2004 Collective
Bargaining Agreement because it was made for a legitimate business reason, He resolved
the apparent conflict between Article 12 (Seniority). and Article 21 (Maftagement).
Arbitrator Zack observed that tho.gerwrarlartguage in Article 21 IS "sUbjeet only to ,suCh
regOlatisM and reStrictions governing the exe,rclse of these "managerial] rights as ate'
expressly provided in this Agreement.
Arbitrator Zaek concluded :that the protections set forth in Article 12 :were express
restrictions on the Company's management rights under Article 12, His reasoning is
persuasive. Arbitrator Zack found that the layoff provision and protections embodied in
Arftclo 12, '$Oothatt B are triggered whoi:1 there is :a lack .0f .work for full-time employees,
He bpifted. that 410ek of wore Is the only reason :fot which ftill ,time employees may be
laid off, As Arbitrator Zack aptly phi aSed it
triggering lack.ofT0ork requirement of
Artzcl 12i.ettiait4.$' the benehmarkpr :kat:11010g suokti3Offt!!
Arbittatot Zack :determined that what happatod to the clerks in the °age before
WM. Wa$ clearly a layott, otlet the fayaf. was. hot dud to -a lack of W.0*. He erdered them
to be made whole for their lost earnings,,
The Zack Award was well reasoned, in this Arbitrator's opinion Arbitrator Zack
juxtaposed the language in Article 21 (Management) WO the language In Article 12,
Section B (Seniority) and correctly concluded that the specifie terms of Article 12 were
restriction on Shaw's management's rights 'under Article 21,
This Arbitrator finds it significant that the parties negotiated two Collective
Bargaining Agreements (2008 - 2013 arid 2013 2.017) shto Zaok Award but made
no substantive changes to either Article 12 or Article 21 in either contract; The Company
did attempt to reverse the Zack Award in the 2013 negotiations but was not successful,
In the hot of Arbitrator Zack's reading of A.rtieler 12 and Article 21 ; the question
that must now be decided is whether the seven Maintenance Employees were laid off,
pffeotive.Deceraber 1, 2013; becauso:there was no Wbilk
fot theni,, At the eonnhentertietit
of arbitration onNW •. n, 2014,
the Cor44ity .4p11' Qke,d.
OoSItiOris of the
etnploydes in its ! Maintenance Department .were not elitainatoci becatis6 of lack of work
for :them In any event, full time work was available
for them when their positions wore.
it is undisputed that all. Of the maintentine4 6.ti4tt'fiig'efati .6ii. ikd&ifioi was
perforated by t40pyort:g40;tozlaii:o:Birtplio:00$
inifapt, three of
„: • : .
"still• being perfOilap4.:
these former •employees gp.:*t .toitIg cooling and .rofxlsormioii units in many of the
satne, 8haw''S! Stores where they were assigned ptio. to December 1, 2013 Shaw's cannot
..operate its supermarkets : without maintaining its cooling
units and other
equipment The only change effected after December .1, 2013,:• is that outside vendors are
now doing the work that isottnel,' $hayy''S oop-107..004tc1::
In addition to Atti,(10 14 the new paragraph 11 added :to Article 19 of the 2013.
: 2017 Colleetive : i3argaitii4g..A :gioOtagt-pOteotod Maintenance Employees from being
laid off, in this Arbitrator's
. • opinion,
Atthst- 4.2013,.the last' day. of negotiations,. the
Company proposed to oxid the following language to Article 19 , (Kalutonario0.:
11 The pottfoolagi'00 that as 'current MaintenailOe
Employees vacate thoirpositiolOthey 14411 not be plade
The 'Onion ,accepted theiproposal and it WO embodie d iit,Ardolo 19', Four months
later, all the maintenance positions were unilaterally eliminated Whether this constituted
'bad faith bargaining.is 'for -the..NLRB to decide. - At:del:613 -Of the2013 2017 ColleCtive ,
of this Arbitrator "to deciding if a Bargin4AemtXpslyinheauort
violation of the Agreement lia$ occurred"
Since there was little, if any, :discussion of the Company's proposal on August 2,
20.1'3 ; what theCompany's
Is ;unOloari• I.
. . ; intent was When it submitted this. proposal
Mariagement had the right. under Article 21: to eliminate the Maintenance Department
:ag. it
claims, this proposal. was mot needed, 'it is ax iomatic that expeieneed negotiators de. not
Make contract proposals that Seiye. no. pUrPOSei
; *
Since there is no bargaining , history, the Company's proposal must be :c OnStrued
as it is Plainly ..kittPA.:
. . the, seven
, . . TiTiO, P1,9*W'411OWS the'cOIPPany V.. -, eliminate
: bargaining unit Maintenance FluployeeS
by 'attrition When'theyVaeate their positions,,
the Company does not have to replace theM, That is what the Plain ;language ;says and
that is what it mustmeau,
For;all the foregOing reaSons this Aibitrator finds that Slia:cv's violated Article 12
and Articlo .19 of the 2013 2017 ColloetiVe.Bargaining Agreement when:it uuilateraliy
laid off 1.11114, MEM"
11/10.1111 and
111.111111111111116, 1111111
effective December 1, 2013. A COMM.tin
remedy for this violation would bean order reinstating these employees to service and
'make them Whole fer Jost earnings and benefitS.. However, there , are .sozte unusual
circumstances in this.porticular 'grievance that may -Warrant a ;different remedy,
. For:install* four of the laid off Maintenance. E' mployees were hired by the
Veridors:;rotaited by Shaw's at
an hourly tate, Of pay, higher than the •$32.
, 05:/hent they
Were last paid at $haw's;, 1-lovVeVer,, they contend that their vacations, ,health care and
pensions are :less advantageous than similar 13.etieft they received when they wotkoct o
and-Shaw tp4040.1).. a. mutually acceptable' remedy, : will retain jurisdipticn or ..p...p.pdp4,
•.date hereof tl.).:0e.Y.01.1.t .:tilatte:'..M.i4Uatly aeeeptable. remedy is
90 days
In that
will dilact a remedy.
The Company /.10.14ted Article 12 and Article 19 .of the 2013 ; 2017 ColleetiVe
Bargaining Agreement IA f- ilen it unilaterally laid off the grievau, Th parties will have
ágreiientdhed' this.
•Arl;likator will enact
Robert .1\4 . '07)3ri,en;
. . R.§4, •
Arbitrator .Dated il
1.3,:29.11.:5 , •