ARBITRATION PROCEEDING American Arbitration association Im the Hatter of the Arbitration} ~between— , } opinion and award SOUTEWESTERN BELL TELEPHONE COPAY) (sen), ) of the the Buployer, . ) arbitrator vana~ ) ) TIE COMMONICATTONS WORKERS OF 2MEE- ) TCR (CHA), ) AAA Case 70 300 00138 99 ) tbe Union. 2 [ere mo. éra9-a2e) Moving Expenses [Article XVIZ, 3 Section 7 and MOA (Dated Kov. =} M4, 2997) d ) Joseph F. Gentile pepitrator APPEARANCES: yor the $8T -- Diego J- Pena, Esq., 175 m. Houston Streat, we, 230, San Antonio, Texas 78205-2233 [(210) 351-2722] Yor the CWA -+ Benjamin Cox, Esq. DaVid van Os & eso., P.C-, 1630 N. Alamo, San Antonio, Texas 78215 [(210) 225-1955) may 14, 2002 (0205063) FRANKEN EXHIBIT GDecision (SwWa & CHA] May 14, 2002 Stampemen oP sue WATER ‘SkB and the CWA have in place a Collective Bargain~ ding Agreement covering various classifications identified in the Agreement. ‘The Agceement bas, inter alia, two principal sections: (1) the "1998 Departmental agreement" and (2) the "1990 Agreement of General application." tha operative provision at issue in the dnstant case is Article XVIT, Section 7 of the former and ~ the arbitration provision, undex wbich this matter is being heard, is Article IV of the latter. tn simple terme, the instant case involves moving expenses for certain employaes found to be ‘surplus™ as “a regult of the reorganization and establichsant of the North and South wexes Regions." In the notification letter to the CHA as to this plaaned "change in operations in the Natwork Services Department,” WB stated that those omployees affected by this “reorganization” Swill be eligible for the provisions of Article XVI, Force Ad~ Justoent, of the 1995 Departmental Aersement." Parenthetically, this letter was dated may 1, 1998. According to the text of the May 1, 1998, letter, ‘thirteen (13) "Communications Technicians" and nine (3) “Customer Testing Technicians" were directly involved in implementing manaye- ment'a planned change in operations. ‘he effective date of this implementation was stated as July 04, 1998. ‘he change of operations vas effected in or around June 26, 199%, the date CWA indicated in its correspondence to beDecision [5wB & CWA] a May 14, 2002 the dete mansganont violated the Agreanent. In Subsequent, couespondence, CWA alleged SWB bad violated Articles IV, XVIX and VEFX vhon it "failed te compensate Communications Technicians and Customer Testing Technicians for moving expenses an specified in the Memorandum of Agreement dated Rovember.17, 1997 [MOAI - Move directly stated, the CWA wanted the NOA's moving expense reimbursement package for these employees who wexe found to be surplus as 2 result of the "xcorgandvation.* SWB yaised o "just-wait-a-minute" argument which was teofeld: (2) the MOA is not subject te the arbitration provisions of the Agzeenent? thus, » threshold arbitrebility issue is raised and (2) CWA's attempt to obtain the noving expense reimbursenent package cf the HOA as a "remedy" to nothing more than 2 “baok- oon" approsch to bring the MOR under the unbrella of the ax~ bitzation provicion wp further argued that should the MOA be found coveked by the arbitration provisions, the facts tail to estab- lish coverage for the affected employees in this mattex. Whatevex! may be said, the issues vere certainly Joined. The disagreement defied resolution; thus, it oltinately cane to xest before the undersignes on December 16, 2001. buring the coursa of the hearing both sides were afforded « full ond complete opportunity te be heard, examine and crote-exsmine witnesses, develop argunent and present rele~Decision [swa & CKd} May 14, 2002 vant evidence. An official transcript of the hearing was made by San Antonio Court Reporting, BL} witnastes appearing before che Arbitrator were duly sworn, After the close of the evidence record, fino] argument vas resorved to post-hearing briefs. ‘These vere timely sthmitted through the offices of the Anerican Agbitration Association (AA). the employees affected by this case were fully and faixly represented by the CWA. Testifying tor SWE was Paul Noyer (Noyes). Testifying fox the CWA. were Andy Ramos (Ramos) and William Francis (Francis). SUDTEMENT OF THE ISSUE At the commencement of the hearing the parties stipulated the issues were as follows ($:17-22]*: "Did the Company Violate azticle TV, Besic of Compensation: Article XVII, Force Adjustment? ‘Tbe Union Sls charges the Company with tbe violation of Article VIET, Responsible Unich-Company Relation sbip of our 1998 Agreesent of General Bpplication. This vio~ lation occusred on or about June 26, 1999, when the Conpany failed to compensate Communications Technicians and Customer ‘Testing Technicians for aoving expenses as specified in the Momoxandom of Agreanent dated Novenber 17, 1997, between Communications Varkara of America and Southwestern Bell ‘Tele- phone Company? If so, vhat shall the remedy be7"** * Gegend: transcript of hearing, poge 5, lines 17 to and inciua- ing 22. "Seme approach used throughout Decision. ** See Joint Exbibit 3. SWH also raised a threshold arbitrability concern (p. 3, supra) .Decision [SWE CWA) a may 14, 2002 APPLICABLE PROVISTONS OF THE AGREEMENT Article IV, Section 1 of the "1998 Agraemant of General Application” provides in pextinent part that "il. during the term of this Agreenent, vith respect to the 1998 Departmental Agreement effective April 5, 1998, between the union and the Conpasy, and subsequent agreenents which by specific referonces therein are made a subject to this Article, a Gifference shall oceur, . . ~” lemphasis added]. Article XVII, Section 7 of the "1936 Department~ al agreement” states in full text thet *[s]urplue employees who accept or receive transfers and who are required to selocate their residence as a result thereof, shall be reimbursed by the ‘Cempany for reasopaple moving expenses incurred." [erphasis added) . he MOA mentioned above (p. 3, supes) is pivotal in this case. The language of this docunent is reasonably clear and straightforward. By its express texme, the MOR relates to specific “center consolidations” and provides for a “special miscellaneous moving allovence egual to 208 of annua} basic wages" if certain criteria are established, such 2g an “accept [ance} [of} @ ‘follow-the-work* job offer.” 3 ds this moving allowance the CWA was zequesting as the xemedy to ita grievance at issue in this cage. As corvectly noted by the SWB, the MOA con~ tains no "specific references" to coverage by Article Iv,Decision [SWS | CWA} May 14, 2002 Section 1’of the "1998 Agreenent of General application." Qwo ancillery contractual references should be noted: (1) Article XVII, Section 1 and (2) article IV, Section 3. The former grants to managenent two exeas of decision making; (1) “shall decide the necessity for ond 12} shal). determine the extent of any force adjustment.~ ‘he latter reminds in mandatory terns the scope of arbitral authority- he factual context for the grievance is quite simple, casentially not in dispute and briefly ovt= Jinea sbove (p. 2, sepa). However, to place in sharper focus the "xeorganization" which triggered the instant gris ance snd the MOA, a brief review of the record evidence is important. In late 1997, SWB'S parent organization, SBC Communications Inc. mezged vith Pacific Bell. This merger created a need to achieve operating efficiencies and this in turn created a need to consolidate various netwoxk centers. Employecs would be surplused and SHB wanted to encourage then to follow-the-work. ‘These cixcunstances led to the MOA. The special sexvices center in Austin was con~ sclidated with the services center located in san Antonio.Decision [SWB & CRA] my Ld, 2002 Pat Torses (Torres) war identified in this evidence record as an employee whe qualified for the "special" moving allowance outlined in the MOA, As often happena in corporate attempts to find the right operations! mix, SWE deternined in may of 1998 to reorganize the centers which had been consolidated and "de— consolidate" these same special service centezs. Thus, the May 01, 1998 letter previously noted (p. 2, supra) above. Work in the San Antonio special services center was sent back to the Austin special services center. In the May Ol, 1998 notification Jetter, ne nmontion was made that the MOA's moving eipense reimbursenent package would apply to the affected employees and it was in deea not provided. ‘Thus, thirteen Conmunication Technicians in tbe surplus work group filed the original grievance made the subject of the instant pearing. Also made a part of this evidence record was a policy entitled "SBT Honmanagenent Kelocation Pian.” Also provided as exhibits in this evidence record were examples of two prior memoranda of agreement in which SWB and the CWA agreed to make these agreements or portions of the agreements subject to the arbitration processes found in Article Iv of "1998 Agreenent cf General Application.“ Francis, an employee affected by the "relocation" and one of the orievants in this mattex, testified he ai¢ notDecision [SWB 6 CHAl a May 14, 2002 . receive the 20% provided for in the MOA, hut did veceive ré- Ambursement for sone of his noving expenses found in “a Little booklet" (110:18]. However, Francis could not recall the de toils of the reimbursement, Inferestially, it seagonably appeared Francis received the moving expenses provided for in ‘the “SWDE Nonsanagenent Relocation Plan’ which had an effective date in may of 199¢. Peventhetically, Francis transferred to Dallas from San Antonie (Ya. 11-121. ‘The above factual sumary places in context the nature of the instant case. DISCUSSION The resolution of this grievance tuzns on the apphicability of the Moa's moving expense reimbursement package xo the sugplused employees in San Antonio. More precisely, the 20% allowance tied to annual basie wages. ‘the thrust of the argunents makes arbitrability and the merits close to being inextricably intertwined for dis- cussion purposes: hovever, at the core rests the HOA. Facially, the NOK is clear and unambigious. it contains express language which provides the MOA coverage, Firat, it: “pertains to the following center consolidations. hora follows specific centers covered by the moA. Second, it ds expressly linked to “consolidations,” not other foxmsDecision {Swp 6 CHAI 8. May 14, 2002 of organizational, structural or operational situations. Third, the reimbursement package of the MOA is expressly stated to be "a special miscellaneous. moving allowancé"; emphasis on the vord “special.” Fourth, the MOA bas neither axpress nor reasonably inplisd language which brings the tems and conditions expressed in the MOA under the unbrelia of Article IV's arbitration provisions. section 1 of Article xv makes “specific references" the vequirenent for such coverage (p. 5, supra). Though one may argue the use of the word “re— organization” is not really different from "consolidation" sn the semantic world, particularly ween, in the instant case, the "reorganisation" amounted to the reversal (deconsolidation) (p. 7, supra) of "consolidation." tho fact zamains vbat took place was not a "consolidation." wot was pivotal in this case was the fact that the MOA made no’ “specific references" to the arbitral processes in cose of disagreements. Coupled with this and atrongly buttressing SwB's non-drbitrability argument were the two other menexands of agreements (Id.) which contained, as Article IV, Section 1 reasonably contemplates, "specific regerences." if the parties wanted it, they knew how to do it! other arbitral decisions between the parties lac provide weight to the SWB's argument that tbe MOA was not subject to arbitral scrutiny, arguments to the contrary notwithstanding. The testinony of Noyes as to the nature and character of the NOA was credited and very persuasive.Decision [SAB 6 CHAI 0. May 14, 2002 In the document trail associated with the in- stant case, it was clear the CWA tied its case to the eppli- eability of the KOA for the "special allowance” found in th MOA was the stated remedy requested. Zn axgument, the CWA skirted the threshold ar- bitrability arguaent by velying on the language found in Article XVII, Section 7 (p. 5, supra). In effect, the CWA contended the "special allovance" was a “reasonable moving expense" and seened to request the Arbitrator interpret this Language to embrace the 20% found in the MOA. The concept of “operating practices" was put forward. In this regard, the CWA argued that “[t]he term ‘reasonable moving expenses‘ [was] vague" and thus past practice snovld be employed to provide substance. in the reasoning of the CWA, this brings tha parties back to az instruction. SwB's rejoinder to the above noted in part and in rather descxiptive words that the wh was attenpting "to cireuavent ~- or make ‘an end-around' ~ the lack of arbitrability Janguaga in the" MOA, As noted by the SWB, "(t]he Gnien's re~ peated statement of the grievance expressly conditians the Com- pany's violation of Article xVIT on the alleged failare te pay ‘the special miscellaneous moving allowance contained in the MOR. ° And Go goes the argument and it is. persuasive. As this Arbitzaror stated in another arbituation between the parties dated July 5, 1993, “the Arbitrator mustDecision [SWB 6 Cua) ne way 14, 2002 acknowledge the persuasive impact of decisional law which clearly favors arbitration of disputes and the presumption of arbitrability as expressed by the U.S. Suprene Court. However, in the instant case, the Arbitrator would bave to jettison article Iv, section 3 (p. 6, supral to find in the CHA's favor in the instent case, More specifically, the Arbitzeter would have to inply lenguoge in the Moa where none now exists. this the Arbitratex cap no do; the perties made this parently clesy by express terns. Therefore, the Arbitrator must find that grievance 6-99-014 is not arbitrable for the reasons stated; therefore, no further’ commenta a6 to the merits ave warranted. Based on this evidence record ax a whole, it is the AWARD of this arbitrator that the matter is not ar Ditrable for the reasons expressed in this Decision: therefore, no further comments as to the merits are warranted and grievance 6-99-014 is denied. Rqqpdgtfully submitted, oF6/4 a P. Gentile, arbitrator May 14, 2002 Loa Angeles, CA (02050831