Plain meaning, conflicting contract terms and supervisors performing bargaining unit work

Arbitrator Linda Klibanow has issued an award in a case involving the Los Angeles Times and GCC/IBT Local 140-N.  The dispute arose from a claim that the newspaper violated its cba by having supervisors perform bargaining unit work.

The cba provided: "Section 2.2 Work Assignments. Any work that can be assigned to bargaining unit employees may also be assigned or reassigned at any time to be performed by other employees, supervisors or managers or persons outside the bargaining unit at the sole discretion of the Employer. The assignment of work or functions to bargaining unit employees shall not be construed as conferring exclusive jurisdiction over same to either the Union or members of the bargaining unit. The Employer shall not use Section 2.2 for the sole purpose of replacing bargaining unit employees and Employer shall not use Section 2.2  for the sole purpose of avoiding the 'Recall' language under Section 11.6 of this contract."

The Union claimed that it had been assured during negotiations that supervisors would perform bargaining unit work only in emergency or "oddball" situations. The employer denied that supervisors were ever assigned to perform bargaining unit work and claimed that the Union was attempting to rewrite the agreement.

In response to the Employer's argument that the plain meaning of the language of the agreement privileged its actions, Arbitrator Klibanow noted:

 If the pertinent terms of the bargaining agreement are plain and clear, there is no occasion to resort to interpretation but where plausible contentions may be made for conflicting interpretations, the contractual terms will be deemed ambiguous and the arbitrator must resort to interpretation and may consider extrinsic evidence in so doing.  Inclusion of inconsistent provisions in a contract results in contractual ambiguity, necessitating resort to principles of contract interpretation and, if available, extrinsic evidence clarifying the terms at issue.

Applying that standard to this cba, Arbitrator Klibanow found an inconsistency between the language authorizing the employer to assign work at its "sole discretion" and  the restrictions on assignment of work for "the sole purpose of replacing unit employees" or "avoiding recall". Accordingly she rejected the employer's "plain meaning" position.

Turning to the merits, the Arbitrator found the evidence established that supervisors had "relieved" press operators on their rest periods, performing unit duties during the break, relieved press operators on their meal breaks, and "pitched in" to improve efficiency.

Finding this conduct violative of the contract, Arbitrator Klibanow determined:

In the absence of supervisors relieving for breaks, "pitching in," and "helping out," at what exact point a unit employee might have been recalled, is not, answered by the record. Via efficiency and crew staffing standards, however, management has implemented a system in which supervisory performance is an integral (consistent) component of unit work. Savings on unit personnel wages is accomplished through incorporation of unit member job duties within the supervisor's job description. The arbitrator, thus, concludes from the evidentiary record that management's efficiency expectations, as communicated to the pressroom supervisory staff, has been such that supervisors could not meet those expectations without regularly performing significant pressroom crew duties themselves. Such consolidation of work responsibilities is a form of job replacement, violative of Section 2.2. [emphasis in original]

While finding the evidence insufficient to order a monetary remedy, the Arbitrator ordered the paper to "cease and desist" violating the cba.

The GCC/IBT Local 140-N's  blog links to Arbitrator Klibanow's award here.

Update: A District Court has overturned Arbitrator Klibanow's award. The court's decision is discussed here.