Labor & Employment Law Daily CBA reference to ‘Elevator Constructors’ included apprentice dispatched to a new job; he gets travel pay
Monday, April 22, 2019

CBA reference to ‘Elevator Constructors’ included apprentice dispatched to a new job; he gets travel pay

By Ronald Miller, J.D.

The term “Elevator Constructors” in a collective bargaining agreement included an apprentice dispatched to a new job pursuant to the CBA’s hiring hall procedure. Finding that the relevant contractual provision covered all Elevator Constructors, not just those that were an employer’s current employees, the apprentice was entitled to travel pay.

A district court erred in vacating an arbitration award after finding that an arbitrator ignored clear and unambiguous language in a collective bargaining agreement by excluding the modifying phrase “in the employ of the Employer,” and granting travel reimbursement expenses to an apprentice, ruled the Eighth Circuit. In reversing the district court’s judgment, the appeals court found that the apprentice fell within the agreement’s definition of “Elevator Constructors,” and the arbitration award in favor of a union drew its essence from the contract (National Elevator Bargaining Association v. International Union of Elevator Constructors, April 18, 2019, Erickson, R.).

Hiring hall arrangement. A union and multiemployer association were parties to a nationwide collective bargaining agreement. Kone, Inc., a major elevator company that belongs to the association, is a party to the CBA. The CBA governs many aspects of the employer-employee relationship, including hiring, and the payment of travel expenses. The CBA provides for a hiring hall arrangement that enables employment on an intermittent, job-by-job basis on projects that are frequently separated in location and time. Under the CBA, Kone must use the hiring hall procedure for both experienced and inexperienced (apprentice) job applicants.

An apprentice list consists of applicants evaluated and ranked in accordance to selection procedures of a local joint apprentice committee, which is made up of both labor and management. The union must send and the employer must accept the next applicant on the list. Local 33 covers a large area encompassing all or parts of four states. In view of this geographic area it was not unusual that employee applicants were required to travel long distances from their homes to the assigned employer.

Travel to jobsite. Alex Thompson, of Rapid City, South Dakota, was the highest-ranked apprentice applicant on the list, when Kone’s supervisor in Des Moines called Local 33 and requested an apprentice for a job. The supervisor questioned the employee’s distance from the jobsite, but ultimately accepted him. The employee was told to present himself at Kone’s Des Moines office at 7 a.m. the following Monday. He made the 615 mile trip, and spent Sunday night at a motel. At the office, he was given a drug test and watched orientation videos before beginning work.

Claim for reimbursement. The employee submitted a claim for reimbursement including claims for overtime travel, and mileage. Kone refused to pay these claims, and the local grieved the issue. The employer contended that the employee was not an employee at the time of travel and was not entitled to reimbursement of travel expenses.

Following a hearing, an arbitrator determined that Kone was required to pay the travel expenses. The arbitrator examined provisions in the CBA and concluded that the term “Elevator Constructors” included an apprentice who is dispatched to a new job location pursuant to the CBA’s hiring hall procedure. The employer appealed and a district court vacated the award, determining that the arbitrator failed to consider the “in the employ of Employers” key contractual language. Thereafter, the union appealed seeking the reinstatement of the arbitrator’s award.

“In the employ of the Employer.” The district court held that the arbitrator ignored clear and unambiguous language by excluding the modifying phrase “in the employ of the Employer,” which it found to be a material omission of critical terminology. The Eighth Circuit disagreed. According to the appeals court, the plain language of Art. II, Par. 1 of the CBA revealed that it was not primarily a definitional provision as the district court viewed it, but rather a Recognition Clause. Simply stated, it was a standard term in the CBA that defined the group represented by the union for bargaining purposes.

In specifying that the union was the bargaining representative only for Elevator Constructors “in the employ of the Employer,” the CBA represents the unambiguous intent of the parties to define the bargaining unit and to exclude those employed by other entities. Thus, even though the apprentice was not a member of the bargaining unit when he was instructed to travel from Rapid City to Des Moines, he was entitled to travel pay.

Recognition Clause. Here, the Recognition Clause was not intended to limit conferred benefits solely to the bargaining unit. The arbitrator appropriately considered the relevant language of the Recognition Clause. Comparing the relevant section of the Recognition Clause with Art. XIII created no inconsistency or ambiguity with regard to who should receive compensation for travel expenses, explained the appeals court. Each of the provisions as construed by the arbitrator were interpreted in the light of the CBA and were firmly rooted in the essence of the contract. Accordingly, the judgment of the district court was reversed.

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