September
13, 2005
MPWMD
Board
Re:
Hearing of LIUNA grievance
By way of
introduction, in the above-referenced matter I am representing the General
Manager in the above referenced matter and acted as the chief negotiator of the
District in its negotiations with the General Staff Bargaining Unit for the
current MOU with LIUNA.
The
findings and recommendation of Hearing Officer Peter A. Lujan has been
presented to your Board for consideration to adopt or reject, or for the Board
to make its own findings and conclusions after a review of the record in the
grievance.
Management
representatives of the District recommend that the findings of Hearing Officer
Lujan be rejected for the following reasons:
1.
The
findings of the hearing officer do not contain any reference to factual
evidence supporting the conclusion that there was an agreement to supplement
the salary of employee opting out of the District provided medical plan beyond
the opt-out payments specified in Article 10.
2.
Hearing
Officer Lujan did not apply the law applicable to contract interpretation in
making his findings or recommendations
A.
Discussion:
1. Factual
dispute
As is clear from a review of the record of the grievance herein, including the recommendation of Hearing Officer Lujan, there is no factual evidence supporting the Union’s assertion that there was an agreement or understanding reached during negotiations that employee’s opting out of health care would receive, in addition to the amount specifically available for reimbursement to employees who opt out, $120 per month. Indeed the record of the grievance reflects that there was no agreement, either orally, in bargaining notes or in the agreement itself that employees who opt out of participation in the District’s medical plan would also receive a cash stipend. Without factual support for this finding, the Hearing Officer’s recommendation must be supported by the interpretation of the contract itself according to the legal principles applicable to contract interpretation.
2. Applicable law:
The
guiding principles of contract interpretation have evolved from the decisions
of the Supreme Court and labor arbitrators based on a vast body of reported
case law. These guiding principles are
utilized by arbitrators, hearing officers and Boards who are required to
resolve disputes regarding the interpretation of a particular contract
provision.
The rule
primarily to be observed in the construction of a written agreement is that the
interpreter must, if possible, ascertain and give effect to the mutual intent
of the parties. Elkori & Elkori, How
Arbitrations Works, 4th Edition, 348- 349 (1985). As a necessary and
essential corollary, if the language being construed is clear and unambiguous,
such language is in itself the best evidence of the intention of the parties.
Reasoning that understandable contract language means what it says,
labor-management arbitrators and courts alike start with the premise that such
intent can best be ascertained from the plain words used in the union contract,
despite the contentions of one of the parties that something other than the
apparent meaning was intended. See Independent
School Dist. No. 47, 86 LA 97,103 (Gallagher, 1985). Safeway Stores, 85 LA 472,476(1985) (Thorp); Metropolitan Warehouse, 76 LA 14,17-18(1981) (Darrow). An arbitrator may not and should not
thereafter resort to the application of "equitable" principles to
cloud the otherwise clear intentions reflected by the meaningful language
adopted. He has no choice but to apply and enforce the provision as written. Weil-McClain, 86 LA 784, 786 (Cox, 1986);
An
arbitrator can neither ignore clear-cut contractual language nor legislate new
language, since to do so would usurp the role of the labor organization and
employer. As stated by the U.S. Supreme Court
An arbitrator is confined to interpretation and application
of the collective bargaining agreement; he does not sit to dispense his own
brand of industrial justice. He may of
course look for guidance from many sources, yet his award is legitimate only as
long as it draws its essence from the collective bargaining agreement.
Steelworkers
v. Enterprise Wheel & Car Corporation 80 S.Ct 1358 at 1361 (1960); Clean Coverall Supply Company, 47 LA
272, 277 (Fred Whitney, 1966). See also, Continental
Oil Company, 69 LA 399, 404 (Wann, 1977).
If
alternative interpretations of a clause were possible, one of which would give
meaning and effect to another provision of the contract, while the other would
render the other provision meaningless or ineffective, the contract should be
interpreted to give meaning and effect to all provisions in the contract. John Deer Tractor Co 5 LA
631,632(Updegraff1946); Beatrice Foods
Co. 45 LA 540, 543 (Stouffer 1965) A broadly observed principle of contract
interpretation also holds that specific language prevails over general
language. Arco Carbon, 86 LA 6,9
(Dworkin 1986) Thus, where two contract clauses bear on the same subject, the
more specific should be given precedence.
Coca Cola Foods, 88 LA 129,131 (Nearing, 1986)
In the
present grievance, at issue is the interpretation of Article 10. That section specifically and unambiguously
states that,
“The District shall pay the following amounts to employees as
an increased health premium. However,
should the below designed amounts exceed the health premium increases, the
excess amount shall be paid to the employee in the form of a salary increase.”
…
Since
there is no dispute that the health premium increases exceeded the designated
monthly amounts for 2005, the express, clear and unambiguous language of the
contract provides that the $120 per month would be added to increase the
District paid health premiums.
Similarly,
the opt-out provision, which is in the following paragraph specifically an
unambiguously states what an employee who opts out of health coverage will
receive:
“…the District shall reimburse the employee for that portion of the premium cost which is incurred, if any, to cover the employee under his/her family members’ medical plan. In no event will reimbursement under the opt-out provision exceed 75% of the District contribution toward employee health premiums.”
These provisions are not only clear and unambiguous as to the amount to be paid employees who chose medical coverage from the District, it is also clear as to the amount received by the employees who opt out, which is strictly a reimbursement of costs incurred. To interpret the specific provision on opt out as somehow including a salary payment of an additional $120 per month to employees would render meaningless both the opt out reimbursement provision and the paragraph which specifies that the $120 per month designated for 2005 goes to medical premium payments if the increases in such premiums are $120 per month or greater, which they were.
Quite simply, the Hearing
Officer’s recommended interpretation of the contract is in express
contradiction of clear contract language of Article 10. In essence, the Hearing Officer is making a
recommendation to create a new contract provision which grants opt out
employees more than the specified reimbursement of costs. In his recommendation, Hearing Officer Lujan states:
“When language is used that is vague or general in nature and yet
provides the flexibility to include those meanings which future experiences
necessitates being filled in.”
However, the general principles of contract interpretation do not allow those who interpret contracts to “fill in” new contract terms. To do so is solely the prerogative of the parties to the collective bargaining agreement. For this reason, the grievance decision of the General Manager should become the findings of the Board and the recommendation of the Hearing Officer should be rejected.
Respectfully Submitted,
Ellen Aldridge