This action might not be possible to undo. Are you sure you want to continue?
PALO AL TO, CALIFORNIA
PHONE: 650325-0389 FAX: 650325-4394 MEDARB@ATTGLOBAL.NET NEUTRAL DISPUTE RESOLUTION
October 21,2011 Adam N. Stem, Esq. Levy, Stem,& Ford 3660 Wilshire Blvd., 6th FIr. Los Angeles, CA 90010 Jason S. Mills, Esq. Morgan, Lewis & Bockius 300 S. Grand Ave., Ste. 2200 Los Angeles, CA 90071 Re: Graphic Communications Conference/International Brotherhood of Teamsters and Lost Angeles Times Communications, Wall St. Journal crew selection Dear Counsel: Enclosed please find a signed copy of the decision in the above arbitration. Also enclosed is my invoice in this matter. I greatly appreciate your cooperation in this case.
Neutul Dispute Resolution
I INVOICE # I
Post Office Box 50787 Palo Alto, CA 94303 Tel: 650325-0389 Fax: 650325-4394 email@example.com
TO Adam N. Stern, Esq. Levy, Stern & Ford 3660 Wilshire Blvd, 6h FIr. Los Angeles, CA 90030
SERVICES Union's one-half, arbitration services, Graphic Communications Conference/International Brotherhood of Teamsters and Lost Angeles Times Communications, Wall St. Journal crew selection Union's one-half, expenses
-=,_--~_. ,=================;-~~~~~~~~~l__-~~~---" __
Tax ID# 77-0439762
IN ARBITRATION PROCEEDINGS PURSUANT TO THE COLLECTIVE BARGAINING AGREEMENT BETWEEN THE PARTIES GRAPHICS COMMUNICATIONS CONFERENCE, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ] ] ]
] ] ] ]
OPINION and DECISION of JOHN KAGEL Arbitrator
LOS ANGELES TIMES COMMUNICATIONS. Employer.
] ] ]
October 21,2011 Palo Alto, California
Re: Crew Selection
APPEARANCES: For the Union: Adam N. Stern, Esq., Levy, Stern & Ford, Los Angeles, CA For the Employer: Jason S. Mills, Esq., Morgan, Lewis & Bockius, Los Angeles, CA
ISSUE: Whether the Employer violated Section 11.3 of the Agreement; and if so, what should be the remedy?
AGREEMENT PROVISION: "Article XI
Seniority Section 11.3 Purpose. Seniority shall apply only to layoffs resulting from a reduction in the work force, recall and to select shifts and vacation times. However, management reserves the unilateral right to assign employees to shifts based on operational needs." (1t. Ex. 1)
BACKGROUND: The Employer, having gained a contract to print The Wall Street Journal, Barons and the New York Post, selected crews to do that work, as opposed to staffing shifts by seniority bid, based on what it considered to be its operational needs. In a decision upholding the arbitrability of the Union's grievance, the undersigned wrote: "T 0 unilaterally determine the staffing of the shifts in question the Employer has to have a good faith, rational basis to justify that its operational needs require such staffing. The parameters of the showing that the Employer must make is up to the arbitrator chosen to hear the merits of the dispute.... Nothing in this decision expresses any opinion, one way or the other, on that issue." (1t. Ex.
POSITIONS OF THE PARTIES: Position of the Union: That there has been no empirical evidence except a graph showing, with the crews the Employer selected, long after the Agreement was violated, that the picked crews did not meet Journal requirements; that accepting that slightly less than 50 percent of the Pressmen were qualified to run the job, a posting was not even tried to see who would bid; that those who make the crew recommendations did not testify; that there was no
memory that particular numbers were cited to justify the selections; that there is no physical difference printing the Wall St. Journal than printing the Los Angeles Times,; that the Employer has records to back their choices that were objectively better than whoever would have bid on the work but did not produce them, leading to the inference that the records would not support the Employer's choices; that the Employer's position leads to the conclusion that seniority is dead because of subjectivity on the part of the Employer that if something is really important so the Employer could hand-pick the crew; that the Agreement is not an illusion so that there is a requirement operational need, and there is no evidence that this is the case here. Position of the Employer: That there was an operational need in this case to utilize Section 11.3' s right for the Employer to select crews by competency rather than seniority; that there are specific Wall St. Journal standards that must be met or the contract will be lost, including eliminating six Press Room jobs; that the best crews were selected and they have performed well with a positive trend to the Journal's quality measures; that Section 11.3 specifically grants the Employer the right to assign crews to the Journal's shifts; that the Union presented no evidence of bad faith or irrational reason for the Employer's actions; that the Employer's evidence was sufficient to justify its crew selection; that the evidence established an upward trend to meet or exceed the Journal's standards as to which the Journal held the Employer; that the Employer did not have to abandon its right to select crews in this case to post and then see who bid, which, in any event, would have deleted of a real
the Employer's exercise of its judgment as Section 11.3 allows; that seniority is not dead under this Agreement.
DISCUSSION: Section 11.3: Section 11.3 allows the Employer to bypass seniority if it can establish that there was an operational need to do so. The standard the Employer is required to meet is it must show a good faith, rational basis for such a need. Operational Need: The operational need the Employer relied on was the securing of the Wall Sf. Journal and related printing contracts. In its evidence it established that its view of the contract with the Journal required particular diligence in the production of the papers to meet Journal standards. (Tr. 19-20, 30-31) Demonstrating that the Journal contract
allowed it to cancel the contract if certain production standards were not consistently met (Tr. 23), the Employer also established that its chosen crews had an upward trend to meet or exceed those standards and thus preserve the contract. (Tr. 59) It also showed that those standards were more exacting then those it had with respect to its internal production of the Los Angeles Times.(Tr. 75-76) The Employer also established that the Journal contract was of particular
importance both to retain Bargaining Unit jobs, to provide significant revenues at a time when traditional sources are faltering (Tr. 23, 44, 60-61), and to attract additional commercial business. (Tr. 61)
Accordingly, the Employer presented a case that it had a good faith, operational need to seek to bypass seniority. Staffing: Additionally, the Employer established that to meet the Journal's requirements, it polled Supervisors and Managers to select crews (Tr. 41, 66) that, in their opinion, would optimize Journal production. The Union maintains that the Employer did not require reference to production records nor did it present the witnesses who made the
recommendations. However, the evidence that was presented showed that the crews that were selected were based on the knowledge and experience of the Supervisors and Managers, that not all J oumeymen were necessarily equal in terms of attentiveness, teamwork and initiative (Tr. 20, 30, 67, 74-76), even though they all had significant seniority (Tr. 60, 73), and that crews not were selected arbitrarily, such as being made up of "drinking buddies." (Tr. 51-52,72) The Employer's evidence, while criticized (e.g., Tr. 68), showed that there was a good faith, rational basis to the Employer's crew selection not using seniority in their composition. The Union did not rebut this testimony and, accordingly, the Employer met the standard it was required to show under Section 11.3. "Death" of Seniority: The Union maintains that if the staffing in this case is allowable, then reference to seniority for shift bidding in the Agreement is illusory and the Employer will be able to staff any way it wants in any circumstance. That argument is too broad, for each situation depends on its own facts. Seniority can be bypassed only on the grounds the Parties 5
agreed, and only for shift bidding, not layoff, recall and vacations. Since the Parties agreed to the exception to seniority for shift bidding, and the Employer established by competent evidence of good faith, rational basis for its decisions, the Arbitrator has no authority to ignore that agreed-upon exception given the evidence shown in this case.
DECISION: The grievance is denied.