The origin of this matter of arbitration is the following grievance filed on January 15, 2015: On…

The origin of this matter of arbitration is the following grievance filed on January 15, 2015:

On 4-25-14 due to circumstances beyond my control I (Bob Boyce) was involved in a job-related accident leading to an injury. Negligence and disregard for safety by Management created an unsafe work environment. Information on defective equipment was not given to employees by Management. Therefore hazards remained when injury occurred. Only then did Management respond to correct problems.

I was denied work due to restrictions from M.D. I am filing for 26 weeks employee contributions to his medical insurance and adjustment to my vacation checks. Compensation for others has been given in the past.

In a letter dated March 20, 2015, the company responded:

This regards Grievance filed by Bob Boyce who has requested to be reimbursed for the 26 weeks of employee contributions to medical coverage and adjustment for vacation pay during his recent absence due to an injury. The Grievant feels that since the injury was beyond his control, he should be compensated for all losses.

As a practice, the company does not require an employee who is out of work (regardless of reason) to keep contributing to their portion of the medical coverage during their absence. After the employee returns, he is required to “catch up” the back payments over a period of time. In the following year, vacation pay is calculated on the basis of total wages earned for the 52 weeks period preceding the vacation eligibility period (anniversary date). If the Grievant was out of work (regardless of the reason) his total wages would of course be less than normal.

The company has made only a couple of exceptions to the policy relative to the medical contributions in the past: two occasions when employees did not return to work from an injury and/or accident. Both of these cases were under extenuating circumstances, not as in the present case. The Grievant argued that, since he was not at fault in his incident, he should be granted the same consideration as the previous cases. I do not think it will be productive to get into the practice of having to argue facts of each case as to who was at fault in the accident before granting the special request. Similarly, the Workers Compensation program is also a “no fault” system where the company is responsible for paying for the claims regardless of who is at fault. Therefore, I am not inclined to start a different practice at this time.

The Grievant is also arguing that, since the accident was “not his fault”, he should be compensated for the loss of earnings that would have otherwise been considered in calculating his vacation pay for the following year. This would establish a completely new practice to administer in the future.

As I review the current Labor Agreement, I cannot find a provision that obligates the company to reimburse the grievant for either of his requests. The actions of the previous cases were above and beyond our contractual obligations and should not be construed as a precedent for other cases.

Based on the reasoning previously cited, I must deny the grievance.

Issue

Whether the collective bargaining agreement between the parties obligates the employer to pay for the employee’s contribution for medical coverage during the time he was on workers’ compensation leave and to adjust the employee’s vacation pay to credit him for time he was out on leave.

If so, what is the remedy?

Relevant Provisions of the Agreement

Article 15: Vacation

Employees will become eligible for vacations with pay on the following basis:

  1. Eligibility, time lost as a result of a work related injury will be counted for the purpose of determining 1,040 hours of work during the fifty-two (52) week period prior to each eligibility date.
  2. Continuous Service

For the purpose of computing vacation eligibility:

  • (a)

Time lost as a direct result of illness or accident shall not constitute a break in continuous service for twelve (12) months of such time lost.

  • (b)

Absences due to leave of absences which do not exceed three (3) months shall not constitute a break in continuous service. However, that period of absence from this cause in excess of one (1) month shall not be counted in computing continuous service for vacation, and an employee’s anniversary date will be changed accordingly.

  • (c)

Termination of seniority as provided for in Article 7, Section III(e), shall constitute a complete break of continuous service and no past service shall be credited in the event of re-employment.

  1. Vacation Pay
    • (a)

Employees will qualify for six (6) weeks of vacation on the twenty-fifth (25th) anniversary of the date from which their employment is continuous provided the employee has completed at least 1,040 hours of work during the year immediately preceding such eligibility date. In such instances, vacation pay will be an amount equal to twelve (12) percent of the employee’s total wages earned by the employee during the calendar year immediately preceding the year of his current eligibility date or 240 times his permanent hourly rate as of the date he became eligible, whichever is greater.

  • (b)

Employees separated from the payroll and who have previously qualified for at least the first week of vacation shall receive pro rata vacation pay for unused vacation at the rate of three and one-half (3½) times their regular hourly rate per week of eligible vacation, for each month of continuous service since the last vacation eligibility date.

  • (c)

Vacation payment will not be made earlier than the week immediately prior to the vacation period.

  1. Vacation Period
    • (a)

In a vacation,

  • one (1) week is defined as seven (7) consecutive days;
  • two (2) weeks as fourteen (14) consecutive days;
  • three (3) weeks as twenty-one (21) consecutive days;
  • four (4) weeks as twenty-eight (28) consecutive days;
  • five (5) weeks as thirty-five (35) consecutive days;
  • six (6) weeks as forty-two (42) consecutive days;
  • (b)

The anniversary date of employment or the date if changed under two of this article, each year shall be the date upon which an individual employee becomes eligible for this vacation. Vacations must be taken during the twelve (12) months’ period following the date on which the employee has qualified. Vacation periods are not cumulative and are not transferable.

  • (c)

The company will schedule the vacation period for each employee as well as generally administer the vacation plan. Employees may schedule one week of their vacation “one day at a time.” Insofar as is practicable, consideration will be given to individual employee preference in scheduling vacations on the basis of mill seniority, provided the request is made prior to March 1 each year.

  • (d)

The company may, at its option, elect to shut the mill for a one (1) or two (2) week period and require the vacation for which any employee is qualified to be taken. The company will sincerely try to give as much notice as possible to employees, should the above decision be made.

Article 19: Health & Safety

The company will earnestly continue its efforts on behalf of the health, sanitation, and safety of employees during the hours of their employment. The company and the union agree to cooperate in achieving this. The union will cooperate in encouraging compliance with the rules regarding health, safety, and sanitation.

The company will continue in effect the Group Insurance Program and Retirement Plan during the life of this Agreement.

Positions of the Parties

The Union

The union stated that Boyce is an exemplary employee with 27 years of service at American Newsprint Corporation. On April 25, 2014, Boyce was injured on the job when an automatic door malfunctioned. Issues with the door had been reported to management on numerous occasions and management has been negligent about repairing the door. Therefore, management is at fault for entire situation and should be held responsible. The injuries cost Boyce six months of work, which resulted in lost income in wages as a result of Workers Compensation, and those lost wages adversely affected the calculation of vacation pay for the next year. This is no way to treat a long-term employee with an excellent work record. Boyce has been harmed for doing his job.

The union closed:

For the foregoing reasons, the union requests that the grievance be sustained and the Grievant, Boyce be made whole for his losses.

The Company

The company’s maintenance department as well as department supervision tried on several occasions to correct the defect in the door and were unable to do so.

The company communicated to all employees and alerted them to stand clear of the door and to be on alert. The company was eventually able to resolve the issue with some electrical modifications to the door.

The grievant argued at step 2 and step 3 of the grievance procedure that past practice was the basis for his complaint. The union failed to show that a past practice existed for either of Boyce’s request, that is, reimbursement of insurance contribution during his absence or a pay adjustment for vacation.

Ms. Joyce Rambo confirmed that she had always required reimbursement of employee contributions to medical insurance upon return to work and that she has never made an adjustment to the vacation provisions as argued by Boyce. Ms. Rambo confirmed that Boyce’s case was handled in the same manner and with the same consideration as similar cases in the past. Two employees mentioned by Boyce never returned to work after their absences for the deductions to be made. Additionally, Rambo confirmed that she has never made vacation adjustments, as stated by the grievant in the step 2 grievance. The consistency in administering this policy has never been made on the basis of who was at fault in the accident.

The company argued that this is a case in which the union is trying to seek through arbitration what it has not obtained in negotiations. The union failed to show that the CBA contains language that would require the company to pay Boyce. Therefore, the arbitrator should not give the union something in this arbitration that it did not obtain in negotiations. The company has held several negotiations since the insurance contribution requirement was introduced, and this request has never been introduced. The union is in effect asking the arbitrator to add an additional benefit to the labor agreement, which bypasses the negotiation process and is beyond what the law requires.

The company requested that the arbitrator uphold the company’s position in this matter.

Questions

  1. What is the rule on the use of a past practice?
  2. Has the union established a past practice?
  3. Does the contract language support the union position?
  4. How should the arbitrator rule? Why?

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