In the Matter of the Arbitration

)
)
Between
)
)
GRAPHIC COMMUNICATIONS CONFERENCE/
)
INTERNATIONAL BROTHERHOOD OF
)
TEAMSTERS LOCAL 140-N
) OPINION AND AWARD OF
) IMPARTIAL ARBITRATOR
and
) MARK BURSTEIN
)
LOS ANGELES TIMES COMMUNICATIONS, LLC
)
)
)
FMCS CASE NO. 10-57132
)
__________ ________ ___________
_____)

Arbitrator
Mark Burstein

Appearances
For the Graphic Communications
Conference/International
Brotherhood of Teamsters
Local 140-N

Adam Stern
The Myers Law Group
3424 Wilshire Boulevard
Suite 941
Los Angeles, CA 90010

For the Los Angeles Times
Communications, LLC

Jason S. Mills
Morgan, Lewis & Bockius
300 South Grand Avenue
Suite 2200
Los Angeles, CA 90071

STATEMENT OF THE CASE
In a January 6, 2012 grievance (Joint Exhibit 2), Ronnie
Pineda, the President of the Graphic Communications
Conference/International Brotherhood of Teamsters Local 140-N,
hereinafter called the Union, alleged that Los Angeles Times
Communications, LLC, hereinafter called the Employer, violated
Article 13.3 of the Labor Agreement (Joint Exhibit 1), hereinafter
called the Agreement, between the parties.

Since the matter could

not be resolved in the grievance procedure, pursuant to Article VI
of the Agreement, the matter proceeded to arbitration.
At the arbitration hearing held on September 5, 2013 and
January 16, 2014 in Los Angeles, California, Adam Stern
represented the Union and Jason S. Mills represented the
Employer.

Each party had the opportunity to make opening

statements, introduce evidence, examine and cross-examine
witnesses.

After the parties submitted post-hearing briefs and

the Employer submitted a reply brief, the last of which was
mailed on April 22, 2014, the matter was submitted for a final
and binding decision.
STATEMENT OF THE ISSUES
Although the parties did not agree to a statement of the
issues, they agreed that each would offer its statement of the
issues and that the Arbitrator would have the authority to frame

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the issues.

The Union offered the following as it statement of

the issues:
Did the Employer violate Section 13.3 of the
Collective Bargaining Agreement by denying
employees the right to select shifts according to
their seniority?
If so, what is the appropriate remedy?

At the hearing, the Employer contended that the statement
of the issues offered by the Union had already been decided in a
prior Opinion and Decision issued by Arbitrator John Kagel and
that the issue in the instant arbitration was as follows:
Did the Employer violate the contract by receiving
input from Operators for purposes of selecting
crews on commercial crews?
If so, what is the appropriate remedy?

In its post-hearing brief, the Employer offered a different
statement of the issues based upon a discussion that took place
between the Arbitrator and the parties during the hearing.
issue was as follows:
Did the LA Times violate Arbitrator John Kagel’s
October 21 decision (interpreting what is now
Section 13.3 of the parties’ collective bargaining
agreement) by considering operator recommendations
for presspersons to staff commercial crews?

RELEVANT PROVISIONS OF THE AGREEMENT
ARTICLE XIII
Seniority
***
Section 13.3. Purpose. Seniority shall apply to layoffs resulting from a
reduction in the workforce, recall and to select shifts and vacations times.

3

That

However, management reserves the unilateral right to assign employees to
shifts based on operational needs.
***
ARTICLE II
Management Rights
Section 2.1. Management Rights. Except as specifically limited by the
express language in this Agreement, all management rights, powers,
authority and functions, whether heretofore or hereafter exercised, and
regardless of the frequency or infrequency of their exercise, shall remain
vested exclusively in the Employer and may be exercised without further
bargaining. It is expressly recognized that such rights, powers, authority,
and functions include, but are by no means whatever limited to, the full and
exclusive control, management and operation of its business and its
pressroom(s); … the determination of the number of employees, the
assignment of duties thereto, the staffing of presses, the number of crews and
crew positions, the right to change, increase or reduce the same, and the
direction of working forces and suspending, scheduling, assigning,
discharging, laying off, recalling, promoting, retiring, demoting and
transferring of its employees.
***

STATEMENT OF FACTS
Background
Greg Malcolm, the Employer’s Director of Operations for
about eight years, testified that in about December 2009, the
Company obtained a commercial contract to print The Wall
Street Journal.

After the Employer selected the crews for that

commercial contract, the Union filed a grievance concerning the
manner in which the crews were selected.

The dispute proceeded

to arbitration and on October 21, 2011, Arbitrator John Kagel
issued his Opinion and Decision (Joint Exhibit 3) in the “Crew
Selection” case.

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Arbitrator Kagel’s “Crew Selection” Opinion and Decision
In his Opinion and Decision, Arbitrator Kagel noted that he
had previously addressed the arbitrability of the Union’s
grievance and had written the following:
To 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 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. …

In his Opinion and Decision on the merits of that case,
Arbitrator Kagel concluded that the standard that the Employer
was required to meet to establish an operational need to bypass
seniority was a good faith, rational basis for the need.

Based

upon the evidence that the Employer presented in that case, he
found that the Employer had demonstrated an operational need to
bypass the contractual provision

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to apply seniority to select

shifts for the printing of the Wall Street Journal.

In reaching

his decision, Arbitrator Kagel found that the Employer had
established that its contract with the Wall Street Journal
required particular diligence in the production of the papers to
meet the Journal’s standards.

He concluded that the Wall Street

Journal’s contract with the Employer allowed the Wall Street
Journal to cancel the contract if certain production standards
were not consistently met and that those standards were “more
1 At the time of that arbitration, the language in dispute that is now Section 13.3 was Section
11.3.
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exacting” than those with respect to the
Angeles Times.

production of the Los

He also found that the Employer established that

the Wall Street Journal contract was of particular importance to
the retention of bargaining unit positions, for providing
significant revenue at a time when the traditional revenue
sources were faltering and for attracting additional commercial
business.

Arbitrator Kagel concluded that “the Employer

presented a case that it had a good faith operational need to
seek to bypass seniority”.
As discussed in greater detail below, after Arbitrator
Kagel concluded that the Employer had established an operational
need to select the crews other than by seniority, he addressed
the manner in which the crews were chosen and concluded that the
crews were not arbitrarily selected.
In response to the Union’s argument that allowing the
Employer to staff in the manner that it did would result in the
“death of seniority”, Arbitrator Kagel wrote that the Union’s
argument was too broad because “each situation depends on its
own facts”.
The evidence in this dispute
The Employer obtained commercial contracts with the New York
Times, USA Today and China Daily and the manner in which the

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crews were selected for the New York Times and USA Today

2

is the

subject of the instant proceeding.
Mr. Malcolm testified that he was involved in the process of
selecting the crews of Operators who would perform the work of
the New York Times and USA Today contracts.

He testified that

since it was important for the crews to understand what was
needed and to work as a team to satisfy the client, he decided to
solicit recommendations from Operators concerning the selection
of the crews.

He opined that since the Operators worked

together, they could offer different perspectives than the
supervisor.

Mr. Malcolm testified that one of the individuals

from whom he sought input was Mike Brierley,
the Employer for about 29 years.

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a Pressman with

Mr. Malcolm testified that when

he spoke to Mr. Brierley, he did not mention anything about team
players and/or give Mr. Brierley any basis for Mr. Brierley to
make a recommendation.
Mr. Malcolm testified that he communicated the
recommendations, including the names of the four Operators that
Mr. Brierley had recommended, to the supervisors who reviewed the
recommendations along with other information that included
performance reviews and performance statistics.

Although he was

not present at all of the meetings, when the supervisors gave
2 There was a disagreement concerning whether the scope of the dispute included China Daily.
3 Mr. Brierley testified that he had been chosen to work one day a week on the printing of the
Wall Street Journal.
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their opinions as to which employees were team players and/or
when the crews were selected by the supervisors, Mr. Malcolm
testified that the supervisors discussed the various factors and
that the recommendations were only one of the factors considered.
Not all of the employees who had been recommended were selected.
Mr. Brierley testified that only two of the four individuals that
he had recommended were selected and that he was selected as a
Lead Operator.
DISCUSSION
The issue to be decided
In their statement of the issues, opening statements and the
lines of inquiry during the hearing, the parties had different
foci.

The Union’s focus was whether the Employer violated

Section 13.3 of the Agreement by denying the employees the right
to select shifts based upon seniority.

Despite the Employer’s

contentions to the contrary, I find that the Union's focus was
always the Employer's decision to use factors other than
seniority as a basis to staff the work on the New York Times and
USA Today.

The express language of the grievance clearly

reflected that focus since the Union alleged the following:
Management has violated the (Agreement), specifically Section 13.3 by
denying bargaining unit employees the right to select shifts according to their
department seniority. … Management’s decision to implement this new
procedure allowing operators to “hand select” their crew members, indicates
an abandonment of (Arbitrator Kagel’s) decision regarding management’s
operational needs. All positions and shifts should be selected by seniority
according to the (Agreement) …

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Similarly, in its opening statement, the Union contended that
whatever steps the Employer took in the selection of the crews
other than seniority were not relevant.
The Employer contended that since the issue offered by the
Union had previously been decided by Arbitration Kagel in his
October 21, 2011 Opinion and Decision, the issue in this matter
was whether the Employer violated the Agreement by requesting
and receiving input from Operators for the purpose of selecting
the commercial crews.
With regard to the impact of Arbitrator Kagel’s Opinion and
Decision on the issue before me, I find that despite the
arguments of the parties, his decision neither dictates the
outcome in the instant case as the Employer contended nor
equates to the “death of seniority” as the Union asserted.

In

his discussion concerning the arbitrability of the grievance
that was before him as well as in his response to the Union’s
contention that allowing the Employer to select the crews other
than by seniority would result in the “death of seniority”,
Arbitrator Kagel concluded that each case that involved the
Employer’s claim of “operational needs” to select shifts other
than by seniority would be based on the specific facts of each
case.

Therefore, I find that the “Crew Selection” Award and

Decision does not constitute the basis for a finding that all

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cases involving commercial contracts automatically involved an
operational need.

I also find that contrary to the Union’s

position, Arbitrator Kagel did not identify any requisite
criteria for a finding that the Employer had an operational need
to bypass seniority.

Rather, consistent with his opinion that

each case should be considered based on the facts of the case,
Arbitrator Kagel concluded in the “Crew Selection” matter that
based upon the facts in that case, the Employer had established
that it had a “good faith operational need to seek to bypass
seniority”.
For the reasons discussed above, I find that Arbitrator
Kagel’s Opinion and Decision stands for the proposition that the
evidence specific in this case must be analyzed to determine if
the Employer could make a unilateral decision to staff the
shifts in the manner it did rather than by seniority because of
operational needs.

Accordingly, I find that the issue before me

is whether the Employer violated Section 13.3 of the Agreement
when it unilaterally decided to assign employees to shifts on
factors other than seniority.
The merits
Section 13.3 expressly dictates that seniority applies to
the selection of shifts subject to the proviso that Management
reserves “the unilateral right to assign employees to shifts
based on operational needs”.

Based upon that the clear and
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unambiguous language, I find that the Employer has the burden to
establish that it had an operational need to staff the work on
the New York Times and USA Today with Operators based upon
factors other than seniority.

In that regard, I find that the

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standard of a “good faith, rational basis” set forth by
Arbitrator Kagel is applicable.
The Employer offered evidence to establish why it sought the
input of Operators to select the crews to work on the New York
Times and USA Today and contended that its decision to solicit
those recommendations was appropriate.

I find that there was

nothing inherently inappropriate about soliciting the opinions
of co-workers and the Employer’s request for and consideration
of the co-workers’ recommendations by itself did not violate
Section 13.3 or Arbitrator Kagel’s Opinion and Decision.

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However, the Employer’s reliance upon those recommendations, in
whole or in part, did not create but rather, pre-supposed an
operational need.

In that regard, I note that Arbitrator

Kagel’s decision did not merely focus on the factors by which
the Employer selected the crews.

Rather, he first addressed

4 The Management Rights language does not require a different result since while it sets forth
identified rights, including staffing, that the Employer retained, it also provided that those rights
were in the context of those rights not being limited by the express language of any other
provision of the Agreement. Section 13.1 of the Agreement constitutes such an express
exception.
5 As noted above, despite the Employer's assertion to the contrary, the focus of the Union's
complaint was not the mere request for the co-workers’ opinions but rather, the decision of the
Employer to use factors other than seniority.
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whether the Employer had a good faith, rational basis that an
operational need existed and it was only after he concluded that
the Employer had met its burden of establishing such a need in
the “Crew Selection” case that he then separately addressed the
manner in which the Employer staffed the crew and concluded that
the crews were not arbitrarily selected.

If the Employer met

its burden in this case of establishing a good faith, rational
basis for an operational need to bypass seniority, I would find
that the method by which it selected the crews was not
arbitrary.
However, in the instant case, I find that there was insufficient
evidence to establish that there was an operational need other
than the generic need for a crew to be able to work together to
satisfy the client.

There was no showing in this dispute, as

there was in the “Crew Selection” case, that particular
diligence was required, that the clients could cancel the
production if certain production standards were not met or any
other factors to establish an operational need to staff the
crews other than by seniority.

Accordingly, I find that there

was an insufficient showing that the Employer had an operational
need to bypass seniority.
For the reasons discussed above, I find that the Employer
violated Section 13.3 when it unilaterally decided to assign

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employees to shifts on the crews for the New York Times and USA
Today on factors other than seniority.
AWARD
The grievance is sustained.

Since the Union did not seek

any monetary order, I order the Employer to cease-and-desist
from violating Section 13.3 of the Agreement and Arbitrator
Kagel’s Opinion and Decision by unilaterally deciding to assign
employees to shifts based on factors other than seniority unless
there is an operational need.
Pursuant to the stipulation of the parties, I will retain
jurisdiction over the remedy until April 17, 2015.

I will

extend that jurisdiction upon the request of either party.
DATED: March 4, 2015

____________________________
Mark Burstein
Arbitrator

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