WASHINGTON STATE FERRIES, DECISION 935 (PECB, 1980)
Inlandboatmen's Union of the Pacific
v. Washington State Ferries
ARBITRATION
AWARD
This matter comes
before the Public Employment Relations Commission pursuant to the collective
bargaining agreement between the Washington State Ferries, hereinafter referred
to as the "Employer", and the Inlandboatmen's Union of the Pacific,
hereinafter referred to as the "Union", and RCW 47.64.030 which
provides:
47.64.030 Duties
of commission in general. The
authority is empowered to negotiate and to enter into labor agreements with its
employees or their representatives, including provisions for health and welfare
benefits for its employees to be financed either wholly or in part by contributions
from the operating fund. The commission
shall have the authority to administer labor relations and adjudicate all
labor disputes on the best interests of the efficient operation of any ferry or
ferry system. In adjudicating disputes,
the commission shall take into consideration that though an individual employee
shall be free to decline to associate with his fellow employees, it is
necessary that he have full freedom of association, self-organization and
designation of representatives of his own choosing who shall represent him in
all respects before the authority to negotiate the terms and conditions of his
employment and before the commission for the settlement of his labor
disputes. The commission shall make such
surveys of wages, hours and working conditions as it deems necessary, shall
consider the prevailing practices for similarly skilled trade in the area in
which the employee is employed. The
commission shall adjust complaints, grievances
and disputes concerning labor arising out of the operation of the ferry
or ferry system. (1975 1st ex.s. c 296 34; 1961 c 13 47.64.030. Prior: 1953 c 211
2; 1949 c 148 3, part; Rem. Supp. 1949 652424, part.)
BACKGROUND
INFORMATION
The employer's basic
work force consists of full time employees who work all year. The full time staff is supplemented by
"temporary employees" who have no regular schedule or assignments,
and who are called to work only when a regular staff member is absent from
work. The grievants, Ivan Daves and Dana
Mackey, are temporary employees.
The collective
bargaining agreement provides in Rule 19, that increases and decreases of
personnel are to be accomplished by applying the principle of seniority. Seniority commences upon the date an employee
is hired. Seniority lists are prepared
and posted, for all job classifications covered by the collective
bargaining agreement. Employees are
listed on all the seniority lists for which they have U. S. Coast Guard
certification documents. Oilers are
listed on the "wiper" seniority list because "wiper" is the
entry level job for "oilers" and any certified oiler can work at
either job.
Temporary employees
are dispatched to fill vacancies throughout the entire Washington State Ferry
System, encompassing the Puget Sound and San Juan Islands. Oilers and wipers were dispatched through the
office of David Black, Operations Coordinator, who later was promoted to
Director of Operations.
Vacancies generally
fall into two categories - emergency call-outs and long term vacancies. Emergency call-outs involve unpredictable
situations where job assignments cannot be made in advance of the need. Long term vacancies (e.g. vacations) are
known sufficiently in advance to allow the employer to schedule reliefs by
seniority.
Deviations from
seniority in dispatching of employees can and do occur for reasons which are
acknowledged as acceptable to both parties.
For example, a deviation from seniority will be made where the
employee with first claim to an
assignment lives at such a distance from the port involved that it is not
possible to travel to the vessel by sailing time. Similarly, if the employer is not able to
reach an employee by telephone to make an emergency assignment, the employer
moves on down the seniority list. In
certain situations more senior employees with only "wiper"
classifications will have to be passed over if the vessel involved has Coast
Guard certification which requires "oiler" credentials. When a more senior employee accepts an
assignment for a short term vacancy, an assignment for an overlapping long term
vacancy will go to a less senior employee.
Temporary employees
are permitted some latitude for indicating a preference for assignments on
certain vessels or routes. However, it
appears that this is an accommodation rather than a matter of right. The Labor Relations Manager of the employer,
Thomas Hardcastle, testified without contradiction as follows in response to
examination by the employer's attorney:
"Q. Was there any discussion between the
parties concerning the availability of personnel?
A. Yes. It was stated emphatically by the union that these employees, who - these temporary employees particularly those who are getting fairly close to the point where they could be come year round employees would have to be available at all times readily available at all times to take jobs at any place in the system." (Emphasis added)
Ivan Daves was hired
as a wiper on October 18, 1977. He was
placed on the seniority list and was classified as a "temporary
employee". He was certified as an
oiler on January 2, 1979.
Daves lived in a
remote rural area outside Anacortes, Washington and, until June, 1979, had no
telephone. All messages were relayed
through his mother's telephone.
Daves called the
employer from a phone booth. He called
the dispatchers office more than weekly but less than daily according to the
testimony and records placed in evidence.
Daves refused at
least one assignment where insufficient time was available for him to reach
the Seattle area by sailing time.
Although he indicated a preference to serve on San Juan ferry runs he
never explicitly refused work elsewhere except for a period of time in
November and December, 1979 when he was having a prosthetic limb repaired.
Dana Mackey was hired
on June 26, 1977. He was placed on the
seniority list as a wiper and was classified as a "temporary
employee". He was certified as an
oiler on October 8, 1978.
Mackey lived in
Anacortes, Washington until the winter of 1979, when he moved to Seattle. He had a telephone and could be contacted at
all times pertinent to these proceedings.
Black testified that
he was unaware of Mackey refusing any work opportunities for which he could
qualify.
EVIDENTIARY BASIS
OF THE CLAIMS
The union bases its
claims of seniority violations primarily, if not exclusively, on insurance
records which show that employees with less seniority than Daves and Mackey
worked more hours in certain months.
Positions of the
Parties
The union contends
that Rule 19 requires the employer to assign employees to vacancies for which
they qualify by seniority; and that it has made a prima facie case showing a
violation. It would shift the burden of
proof to the employer to show contract compliance, noting that only the
employer has records indicating the types and numbers of vacancies during the
time in question. It asserts that the
employer's violation of Rule 19 has deprived the grievants of income and
benefits. The union asks that the
grievants be made whole for wages and benefits lost where less senior employees
worked more between January 1, 1978 and August 31, 1979.
The employer contends
that the grievants were properly assigned to vacancies to which they were
qualified and available; that the grievants had indicated a preference to work
on vessels on San Juan ferry routes; that Daves had no telephone for most of
the time and was difficult to reach; that the grievants did not call the
employer regarding openings as often as needed to have been assigned more jobs;
that Mackey was unable to work for an extended period of time which should be
excluded from consideration in these proceedings. It contends that the parties agreed in
negotiations that deviations in scheduling assignments could occur; and that
the employer did the best it could under the circumstances.
DISCUSSION
The employer is
responsible for dispatching "temporary" employees and maintains all
the records on dispatch of temporary employees.
The union reasonably anticipated that the employer would call the most
senior temporary employee whenever vacancies arose. However, the union has not relied in these
proceedings on the employer's records.
Instead, the union relies on health/welfare records showing only the
gross number of hours credited in two-month periods and, it appears, made no
effort to review or subpoena the employer's records.
The evidence
indicates a large number of variables which affect the operation of the
seniority system, and several additional variables which affected the operation
of the seniority system in the cases of these particular grievants. The evidence presented by the union in terms
of gross number of hours of various employees suggests, at best, that some more
detailed evidence might show seniority violations. The evidence presented by the union falls
far short of establishing a violation or forming the basis for a remedial
order. In fact, the strongest evidence
from which we could infer a violation is found in admissions made by
management personnel Hardcastle and Black. Hardcastle testified:
"It doesn't say it, but it's within the
limits of reason. Now when I say that;
when we need employees we aren't in a position where we can go down ten or
twenty people until we get one - get a person.
We use the most convenient means of hiring a person without exerting
too much effort. I simply mean that
those we know are readily available are likely to get the jobs." (Emphasis supplied)
Black testified:
"Well, I don't really have an answer,
Hank. The one that comes to mind is
where were these jobs and did this come down to a case of the squeaky
wheel getting the grease. Did
these guys phone so constantly looking for work that they got it or were they
in areas we knew Ivan didn't want to travel to.
That is what I think the question is and I don't have the answer."
(Emphasis supplied)
Much as counsel for
the union urges in the brief (he did not represent the union at the hearing)
that there should be a shifting of the burden of proof to the employer, we must
take this case as we find it and decide it on the record which we have before
us. It appears that the employer has
never failed to document its assignments because it has never been required by
the union to do so.
Any remedial order
made on this record would be entirely speculative. The grievants expected to work less than full
time, but they permitted their situation to go on for substantially in excess
of one year before they questioned whether they were being shortchanged. Random interplay between vacancies and
assignments would normally have produced more hours of work for the grievants
than for less senior employees; but until August, 1978 when Mackey qualified as
an oiler and January, 1979 when Daves qualified as an oiler, less senior
employees already qualified as oilers would necessarily have received oiler
assignments for which the grievants were not yet qualified. Further, the distance of both grievants
(until Mackey moved) from Seattle area ports could, as urged by the employer,
have effectively disqualified then from some assignments made on short
notice. In case of Daves, the failure to
have a telephone is passed over too lightly by the union, and is found by the
Commission to be a significant impediment to any liability finding or remedy
computation. Finally, Daves was clearly
unavailable for work during the period late in 1979 when he refused
assignments.
Promptness is one of
the most important aspects of grievance processing. As an ancient maxim states:
"Equity aids the vigilant, not those who
slumber on their rights." Leschner
v. Department of Labor and Industries, 2 Wn.2d 911, 927 (1947).
The collective
bargaining agreement under which this dispute arose was effective from April 1,
1977 through March 31, 1980. The
grievance was discussed with the employer on August 23, 1979 and was filed with
the Commission on October 1, 1979. While
the employer has not expressly raised a timeliness defense in response to the
union request for a makewhole remedy covering a 20-month period, any remedial
order for such a period would have to be scrutinized carefully. It is neither reasonable nor sound labor
relations to allow employees to sit on their rights for so long a time, doing
or saying nothing, and then request a remedy that may have far-reaching
economic repercussions. Had the employer
been asked, under subpoena, to reconstruct the events concerning the employment
of these grievants and others during the period in question, some difficulty
could reasonably have been anticipated merely because of the passage of time.
So that compliance
with the seniority provisions of the collective bargaining agreement might be
audited, the party making assignments must, of necessity, keep adequate records
of both who was called and the reasons for deviations from seniority. Those records must be made available, on
request, to the other party to the collective bargaining agreement. If such records have not been kept in the
past, the parties must immediately take steps to create such records. Had adequate records been kept and produced
in evidence before us, the quoted portions of the testimony of employer
witnesses strongly suggest that we might be finding some violations to have
occurred. There is no grease in the
seniority system of this contract for squeaky wheels, nor is there a convenience
provision allowing the employer to undermine the system in order to reduce its
exertion of effort. The Commission does
not condone violations of collective bargaining agreements, but must conclude
that we lack a record in this case on which to base a finding of a violation or
a remedial order.
FINDINGS OF FACT
1. Washington
State Ferries is an agency of the State of Washington having responsibility for
the operation of a system of ferries on and crossing Puget Sound, and is the
employer under RCW 47.64.
2. Inlandboatmen's Union of the Pacific is the collective bargaining
representative of a bargaining unit, which among other classifications,
includes oilers and wipers.
3. The
employer and union entered into a collective bargaining agreement effective
from April 1, 1977 to March 31, 1980 which includes contractual provisions
applicable to this disputed matter which read as follows.
RULE 6 - MANAGEMENT RIGHTS
6.01 Subject to the terms and conditions of this
Agreement, the Employer retains the right and duty to manage its business,
including the right to adopt regulations governing the appearance, dress,
conduct, and work procedures of its employees as are reasonably required to
maintain safety, efficiency, quality of service and confidence of the traveling
public. The Union reserves the right to
intercede on behalf of any employee who feels aggrieved because of the exercise
of this right and to process a grievance in accordance with Rule 15. The existence of this clause shall not
preclude the resolution of any such grievance on its merits.
RULE
19 - SENIORITY AND ASSIGNMENTS
19.01
The Employer shall determine the number of year-round jobs in each job classification. These shall include that number of relief
type jobs, including
vacation relief, which the Employer determines to be needed on a
year-round basis to cover assignments
where the normally assigned employees are not available
or where no permanent assignments have been made. All jobs not designated by the Employer as
above shall be classified as "temporary." These shall include jobs
not needed on a steady, year-round basis, whether they be extra assignments or temporary relief
jobs not filled by employees on year-round assignment.
19.02
The Employer shall prepare and maintain working lists of year-round jobs, showing
the names of employees assigned to such jobs by department and
classification. Departments shall be
Deck, Engine, Terminal, and Traffic Information.
Seniority in each classification will be
established on the date the employee is assigned to regular year-round employment in that classification. There shall be supplemental lists, by
department and classification, of employees working less than year-round
assignments, in order of dates of hire.
On January of each year, each department's rosters will be furnished
the Union and posted in places accessible to those department's employees. These rosters will be open for correction of
seniority dates only for a period of sixty (60) days from the date of initial
posting, on presentation of proof of error in writing, by an employee or
employee's representative. Seniority
dates not contested within sixty (60) days of initial posting shall not be
changed thereafter, except for correction of typographical error.
its receipt.
These requests will be kept on file for a period of one (1) year after
receipt and then will be destroyed, unless the individuals indicate in writing
their desire to extend the requests each subsequent year. When an opening occurs, the Employer may fill
the job for a period of up to thirty (30) days from any source. If the person previously holding that job fails
to return in thirty (30) days, the most senior year-round employee in that
classification who has a request on file for that job and is available shall be
assigned. If there are no available
qualified yearround employees having requests on file, the most senior
available qualified employee who does not have a year-round assignment shall be
assigned to the job. This rule shall not
apply to the filling of any openings in the positions of Terminal
Supervisor, Information Supervisor,
ABBos'n, shoreside maintenance employee or Foreman. If the regular employee returns from an approved
absence after the job is filled under the above procedure, all affected
employees will return to their previous assignments. When a regular employee accepts a temporary
promotion, the employee may return to the employee's former job at the
completion of the temporary job.
19.04 In
reducing or increasing personnel in the respective departments, seniority shall
govern. When lay-offs or demotions
become necessary, the last employee hired in a classification shall be the
first laid off or demoted. When
employees are called back to service, the last laid off or demoted in a
classification shall be the first restored to work in that classification.
19.05 Any
employee who has established seniority and is elected to any full-time office
in the Union or who is transferred to a position in Management shall retain
seniority status throughout either term or terms in office or for the duration
of employment with Management.
19.06 Ticket
Takers who have acquired seniority as of July 1, 1972, shall maintain their
classification and rate of pay although assigned to Terminal Attendant
classification duties. Furthermore,
Ticket Takers who have been assigned to Terminal Attendant duties shall not be
required to take a Ticket Taker vacancy at another terminal.
4. Dana
Mackey was employed by Washington State Ferries as a wiper on June 26,
1977. He became an oiler on August 8,
1978. He is classified as a
"temporary employee".
5. Ivan
Daves was employed by Washington State Ferries as a wiper on October 18,
1977. He became an oiler on January 2,
1979. He is classified as a
"temporary employee".
6. Temporary
employees do not work at year-round assignments at facilities or on vessels of
the fleet. They are dispatched to fill
vacancies on an on-call basis.
7. Dana
Mackey and Ivan Daves are listed on the oiler/wiper seniority list. Oilers have a modified super-seniority over
wipers because oilers can work as wipers but wipers cannot work as oilers.
8. Washington
State Ferries has deviated from applying Rule 19 to vacancies occurring in
oiler and wiper job classifications.
9. Washington
State Ferries has employed persons less senior than Mackey and Daves for
greater numbers of hours than Mackey and Daves.
10. The
Inlandboatmen's Union of the Pacific has not submitted records sufficient to
determine if a violation of Rule 19 has occurred.
CONCLUSIONS OF LAW
1., The Public Employment Relations Commission has jurisdiction over this matter under RCW 47.64.
2. The Employer has the responsibility to comply with Rule 19
in regard to the assignment of personnel.
3. On the record made, the union has failed to sustain its
claim that Rule 19 has been violated and that some specific remedy is warranted.
ORDER
The grievances of Dana Mackey and Ivan Daves are denied.
DATED at Olympia, Washington, this 14th day of November, 1980.
PUBLIC EMPLOYMENT RELATIONS COMMISSION