Alaska Employment Law

Landau on out-of-class pay; Reeves on past practice and interpretive rules

Chugach Support Services, Inc. & Teamsters Local 959:  Arbitrator Robert Landau held that Chugach breached the CBA by failing to pay higher Cook II wages to Cooks I temporarily assigned to do the primary duty of a Cook II (and one that was not included in the job description of Cook I).   Landau also found that the employer hadn’t waived a timeliness objection, but rejected that objection because the grievance alleged a continuing violation. 

Nancy Shaw (Teamster in-house counsel) represented the union.  Patricia Vecera of Turner & Mede represented the employer.

123 LA 1807 (June 14, 2007). 

Alaska Railroad Corp. & UTU Local 1626:  An employee on a Last Chance Agreement challenged his termination.   The LCA waived the right to grieve, but didn’t waive the right to a pre-termination hearing.  The CBA, in turn, required a pre-termination hearing within 30 days of management’s “knowledge of alleged offense or incident.”  While the union conceded that the employee had violated the LCA, it challenged the Railroad’s delay in holding the pre-termination hearing.

Arbitrator William Reeves denied the grievance.   He first found the grievance to be arbitrable, despite the LCA waiver language, because the time limitation on the hearing “is one of those basic procedural protections provided by the CBA which was not modified by the LCA.” 

Next, on the merits, Reeves rejected the Railroad’s claim of a past practice that extended the time for the hearing, because the union hadn’t agreed to the Railroad’s prior practice.  Left with the language of the CBA, Reeves adopted a reading that used an objective standard, rather than one that would make the provision “substantially more subjective, and a source for a greater number of disputes between the parties.”  Reeves, thus, held that the 30-day time frame “starts to run when the allegation of the offense or incident is reported to management,” and is not tolled while the employer conducts an investigation.  However, Reeves held the union was estopped from complaining about the tardy hearing, because it had failed to put the employer on notice that it wanted to enforce the contract language after having tolerated several tardy hearings.  So - the parties’ inconsistent practice was insufficient to prove “past practice,” but sufficient to shift the risk of loss to the party (here, the union) seeking to enforce the language.

While Reeves did not make a formal finding that the Railroad had held an untimely hearing, he did find no prejudice to the employee, who was paid through the hearing, and did find that the employee would have been terminated regardless of the date of the hearing.

Chuck Dunnagan of Jermain Dunnagan & Owens represented the union.  Bill Mede of Turner & Mede represented the employer.

124 LA 25 (June 6, 2007).