AMERICAN
ARBITRATION ASSOCIATION
VOLUNTARY LABOR
ARBITRATION
IN THE MATTER OF THE
ARBITRATION BETWEEN
SCHINDLER ELEVATOR
CORPORATION,
("Schindler" or
"Company")
-and-
INTERNATIONAL UNION OF
ELEVATOR CONSTRUCTORS, AFL-
CIO,
("Union")
COMPANY GRIEVANCE
(Issue of whether or not
parties' contract requires Company to test non-bargaining unit supervisory and management
employees under the "regular testing program" agreed to by Company
and Union for bargaining unit employees; anticipatory breach; remedy.)
OPINION AND AWARD
Before: Elliott H. Goldstein, Arbitrator
AAA Case No. 51 300 00830 03
Arb. Case No. 03/045
Appearances:
On
Behalf of the Company:
Peter
Robb Attorney
Scott
L. Stadelman Company President
Michael
Shields HR/Labor Relations Manager
Richmond T. Downie Region Operations
Manager
James
Walker Downs Rachlin Martin Labor Consultants
Gene
Moch Company Vice-President
Roger
Cutsinger Manager Labor/Employee Relations
On
Behalf of the Union:
Robert
Matisoff Attorney
James
H. Chapman, Jr. Assistant General President, IUEC
Dana
Brigham General President, IUEC
Mike
Langer Business Manager, Local 4
Tim
Smith IUEC Regional Director
Tony
Shanken IUEC Local 2
I. INTRODUCTION
The
hearing in this case was held on May 17,
2005 at the Hilton O'Hare, O'Hare International
Airport, Chicago, Illinois, before the undersigned Arbitrator who was duly appointed
by the parties to render a final and binding decision in this matter. At the hearing
the parties were afforded full opportunity to present such evidence and argument
as desired, including an examination and cross-examination of witnesses. A 164-page
stenographic transcript of this hearing was made. The parties submitted
post-hearing briefs, the second of which (the Company's) was received by the
Arbitrator on July 1, 2005, whereupon the record was declared closed. The
parties graciously granted the Arbitrator an extension of time in which to
render his award.
II. STATEMENT OF THE ISSUE
After
considering the issues proposed by the parties, the Arbitrator frames the issues
as follows:
A) Whether the Substance Abuse Program
incorporated within the collective bargaining agreement requires the Company to
test non-bargaining unit employees when testing bargaining unit employees?
B) Whether the IUEC and/or IUEC Local 2
violated the labor contract in December 2002 by not allowing bargaining unit
employees in the Company's Chicago office to be tested unless non-bargaining unit employees
were also tested, and, if so, what is the remedy?
III. PERTINENT CONTRACTUAL PROVISIONS
SUBSTANCE ABUSE1
Par.
2. The Company may schedule regular drug testing for employees at no les than 6
month intervals. There shall he no random testing for drugs or alcohol for any
reason other than stated in Paragraph 6. An employee who refuses to submit to
random testing of any kind, for reasons other than stated in Paragraph 6, shall
not be disciplined, nor shall that employee be refused access to the jobsite.
____________________
1 This provision is found on pages 130 through 134 of
the parties' July 9, 2002 through July 8, 2007 collective bargaining agreement.
Par.
8. Any employee(s) who possesses, sells, transports or distributes illegal
drugs or unauthorized alcohol at a work site, on the company premises, or on
company time is subject to immediate discharge.
This
statement of principles shall apply to all employees represented by the
International Union of Elevator Constructors. Substance abuse testing and
treatment measures are appropriate for all employer non-bargaining unit
employees as well, including company executives and officers.
IV. FACTUAL BACKGROUND
The
Company, Schindler Elevator Corporation (Schindler or the Company), has a longstanding
bargaining relationship with the International Union of Elevator Constructors,
AFL-CIO (IUEC or Union). For many years, the Company was represented in
collective bargaining with the Union by an employer association, the National Elevator industry,
Inc. (NEII). The Union and NEII entered into a long series of national collective
bargaining agreements, each known as the Standard Agreement. In 2002, Schindler
withdrew from NEII when it ceased to function for collective bargaining purposes.
The Company and the Union then bargained with each other directly for the current
agreement, dated July 9, 2002 to July 8, 2007. The Schindler agreement is almost identical to the
labor contracts between the IUEC and other elevator companies.
The
Standard Agreements prior to 2002 contained language regarding substance abuse.
The version contained in the 1997-2002 Standard Agreement was introduced by the
Union
in evidence at the arbitration hearing. That substance abuse program did not provide
for random or regular testing, but was limited essentially to "reasonable suspicion"
and "post accident" testing. Going into the 2002 negotiations for new
agreements to replace the 1997-2002 Standard Agreement, the Union developed
a much broader substance abuse program that included for the first time a
provision for "regular" testing at six month intervals. As Union
General President Dana Brigham testified, he sought to strengthen the substance
abuse program not only for obvious safety reasons but to ensure that the Union and the
industry had a stellar reputation regarding substance abuse. The proposal was
initially proposed by the Union to Thyssen Krupp, the company with which the Union reached
agreement first, and then to Otis and Schindler.
Schindler
and the Union began negotiations in April 2002. On April 30, the Union presented
its comprehensive substance abuse proposal which gave the Company the ability
to conduct regular drug tests at six month intervals. The final numbered paragraph
of the Union's proposal contained the paragraph which ultimately
gave rise to the instant dispute. It provides as follows:
This
statement of principles shall apply to all employees represented by the International
Union of Elevator Constructors. Substance abuse testing and treatment measures
are appropriate for all employer non-bargaining unit employees as well,
including company executives and officers.
Testimony
from both Company and Union witnesses established that the Union repeatedly
emphasized during negotiations its desire to have a drug-free workplace. When
the matter first came up on April 30, Schindler Chief Spokesperson Shields generally
agreed with the Union's proposed efforts to achieve and maintain a
drug-free workplace. Over the course of this bargaining session and another
that took place on May 6, the Union voiced concerns about field superintendents being
tested. The Union expressed the view that supervisors were just as
likely to be involved in drug or alcohol incidents as bargaining unit
employees.
Union
witnesses testified that, in response to a question from Earl Romnes, a Company
negotiator, as to who was to be tested under the proposed program, Union General
President Brigham stated that "everyone," including supervisors,
would be tested. Company witnesses all testified that when this subject came
up, Scott Stadleman, now the Company President, raised his hands and asked to
stop the discussion. He explained at the bargaining table that Schindler
already had a comprehensive substance abuse policy, which, provided, for random
drug testing where permitted by law, for its non-union represented employees.
Therefore, he stated, the Company was not going to talk about testing for
non-bargaining unit employees. Union witnesses conceded that this may well have
occurred, though they were unable to recall the specifics of Stadleman's statement.
In
any event, the record shows that the matter was not discussed again. Schindler ended
up signing an agreement that contained the Union's proposal for a new substance abuse program, and it
included the language of paragraph 8 set forth above. It is the Union's view
that acceptance of this language compelled the Company to test non-bargaining
unit supervisors when it subjected its bargaining unit field employees to regular
testing. As Union General President Brigham and Assistant General President James
Chapman testified, the Union used this as a selling point after the negotiations were
concluded in explaining the more rigorous substance abuse program to the membership
and arguing for its acceptance at the national ratification meeting the Union held in
June of 2002.
In
December that year, Region Operations Manager Richmond Downie, the head of the Chicago
office, scheduled drug testing for the bargaining unit employees in his area.
Downie testified that there had been an unusually large number of injuries and
one fatality among its Union represented workforce of about 715 to 720 employees.
He stated that the Chicago office had the worst record for on-the-job accidents
involving IUEC-represented employees among all of Schindler's numerous offices
throughout the United States. However, employees in Schindler's Chicago office
who were not part of the IUEC bargaining unit had not incurred a single
incident, he testified.
According
to Downie, he decided to look for possible causes for the high number of
injuries. Having reviewed the new Schindler Agreement which had gone into
effect in July, 2002, Downie focused on the testing procedure set forth in Par.
2 of the substance abuse program. He arranged for MEDTOX, a drug testing
company, to perform the tests at several sessions on December 4, 5, and 6. They
planned to collect specimens from about 35 employees per session. Downie
testified that he combined the drug testing with safety training, which
included a review of the changes to the substance abuse program as well as
other matters. Downie estimated that one hour of paid time per employee for additional
travel time from the drug testing/safety training site to the employee's first
job would be needed.
On
December 3, Downie called both IUEC Regional Director Ed Christensen and his
brother, IUEC Local 2 Business Manager Frank Christensen, to advise them of his
intention to give employees a drug test. Regional Director Christensen said he
disagreed because, under Paragraph 8 of the substance abuse program, Schindler
had to test non-IUEC-represented employees in order to test bargaining unit
employees. Downie did not push the matter any further. Instead, he cancelled
the WEDTOX testing, which saved having to pay for tests that were not taken. He
did have the employees come in for the training sessions.
On December 16, 2002,
the Company filed the instant grievance, claiming that the IUEC
"improperly refused to permit drug testing of bargaining unit employees
unless the company concurrently required the same drug tests for its employees
who do not [sic] bargaining unit work." The Company requested that it be
reimbursed for all costs of scheduling drug tests that were not recoverable and
that the Union be instructed to cease and desist any efforts to
interfere with drug testing of bargaining unit personnel performed under the
substance abuse program. The parties were unable to resolve the dispute, and it
now comes before this Arbitrator for final and binding resolution.
V. CONTENTIONS OF THE PARTIES
A. THE COMPANY
To
the Company, this is a case where the clear and unambiguous contract language
is entitled to enforcement. The substance abuse program plainly does not require
Schindler to test non-bargaining unit employees, the Company argues. Par. 8 states
that "substance abuse testing and treatment measures are appropriate for
all employer non-bargaining unit employees," including company executives
and officers, but it does not mandate that such testing be performed. The
parties knew how to propose language that would mandate such testing. The
omission of reference to the terms "shall" or must" in Par. 8
was not unintentional. In the Company's view, the conclusion is inescapable
that Par. 8 does not require that substance abuse testing and treatment measures
be applied to non-bargaining unit employees.
There
is no need to resort to parol evidence to determine the meaning of the disputed
contract language, the Company asserts, because no ambiguity exists. Nevertheless,
even if extrinsic evidence is considered, it does not favor the Union's theory
of the case. Statements made in negotiations for the current agreement confirm that
the Company would not address non-bargaining unit personnel at the bargaining table.
This is consistent with the fact that Schindler already had a rigorous
substance abuse policy for non-Union employees, which, unlike the Union's
proposal, permitted random drug testing. Therefore, subjecting non-bargaining unit
employees to the lesser restrictions of the substance abase program proposed by
the Union would not have been logical, the Company submits, because it would only
have diluted the deterrent factors already applicable for non-Union employees.
Equally
important, the Company maintains that the language of Par. 8 only states that
substance abuse testing and treatment measures "are appropriate for all
employer non-bargaining unit employees as well..." The Company fully
complied with this language by having a separate substance abuse policy for
non-represented employees. The existing policy already contained
"appropriate" substance abuse testing and treatment measures. There
was therefore no need to discuss the matter any further, as Stadelman made
clear in his emphatic statement at the bargaining table.
Once
that finding is made, the Company submits that the Arbitrator must conclude that
the Union violated the Schindler agreement by refusing to allow the Company to
administer substance abuse testing to bargaining unit members in the Chicago area.
In response to Region Operations Manager Downie's courtesy call on December 3,
Regional Director Christensen unequivocally announced that the Union would not
allow its members to take the scheduled drug tests unless Schindler also tested
superintendents, office personnel and managers as well. Regional Director
Christensen's sole support for his directive was Par. 8 of the parties'
substance abuse program, Management reminds the Arbitrator. As the Company has
shown, however, his interpretation was erroneous. Schindler had the right to
give drug tests to bargaining unit employees without testing any non-bargaining
unit employees. The Union's refusal to permit testing of bargaining unit
employees in Chicago on December 4, 5, and 6, 2002 was a clear violation
of the Schindler agreement, the Company asserts, and a make whole remedy is in
order.
Schindler
argues that the average time for employees to get to their first jobs was one
hour per employee. Therefore, the Union should be required to reimburse the Company for one
hour of time, at the contractual wage rates plus fringe contributions in effect
at the time when the employees finally take the drug test, for all employees in
Schindler's Chicago office who were scheduled to take the drug test in
December 2002. Although the Company anticipates that the Union will
argue that Schindler could combine the tests with future training sessions,
Schindler argues that this is not a valid argument for allowing the Union to escape
the consequences of its actions. But for the Union's breach of contract,
Schindler maintains that it could have, and would have, given the drug tests in
December 2002. Schindler should not be penalized now, some two and one-half
years later, by a requirement that it wait even longer to make the drug tests coincide
with other training. The Company further points out that an employer and union are
equal parties to a labor contract and the same standard for assessing damages
for breach of contract should be applied to both. Having breached the Schindler
agreement, the Union must be required to make Schindler whole for any
damages, the Company forcefully argues.
For
all these reasons, the Company requests that the Arbitrator sustain this grievance
in its entirety.
B. THE UNION
In
the Union's view, this case represents a classic demonstration of the old adage that
"no good deed goes unpunished." Having Pressed hard at negotiations
for a new and much more stringent industry substance abuse program, the Union now finds
itself accused by one of the employers that ultimately agreed to the Union's
proposal of violating the very program it promoted. However, when the evidence
presented at hearing is carefully considered, the Union submits,
the conclusion that emerges is that Schindler, and not the Union, violated
the provisions of the substance abuse program.
Although
the Union acknowledges that the Company was not obligated to bargain over
substance abuse measures for its non-bargaining employees, the fact of the
matter is that the Company did so bargain, in the 2002 negotiations leading up
to the adoption of the revised program, I am told. As the Court of Appeals for
the Seventh Circuit recognized last year, measures addressing how non-unit
workers are treated are permissive, not mandatory subjects of bargaining.2
Employers are not required to bargain over such subjects, but may choose to do
so. Once they do agree to such measures, the Union asserts, they are bound to
them. That is what the Union believes occurred here.
The
Company's position that it took the issue of substance abuse testing for
non-bargaining unit employees off the table is simply not credible, the Union
argues, since the Company obviously agreed to the language in question. In the
end, the Union contends that this case can be resolved by resort to
a standard for interpreting contract language often employed in arbitration.
When the Union clearly explained at the table that the language of
Par. 8 meant that supervisors would be subject to testing, the Company acted at
its peril in agreeing to that very language proposed by the Union, without
modifying it in some way to spell out that it did not mean what the Union asserted
it meant. As Elkouri and Elkouri explain in How Arbitration Works (6th
Ed. 1997), pp. 455-456: "...where a party has initially objected to a
particular proposal, citing a particular reason, but the proposal is ultimately
adopted, it may be interpreted as having the scope or effect feared by the
objecting party."
____________________
2 Lid Electric, Inc., v. IBEW
Local 134, 362 F.2d 940 (7th Cir. 2004).
This
was not an instance where the Union had some "secret" or undisclosed meaning,
intention or interpretation of the language in question. To the contrary, the Union
explicitly explained what it sought: testing of non-bargaining unit employees. Thus,
the Union maintains that it was not enough for Stadelman to simply throw up his hands
and say "stop," only later to accept the Union's
proposed language for Par. 8 of the substance abuse policy. If the Company's
final position was that it would not agree to what the Union openly
sought to obtain, the Company never should have agreed to any language
discussing testing of non-bargaining unit employees unless that language clearly
spelled out the limitations or conditions the Company wished to impose. In
other words, by failing to modify the Union's proposed language, the Company became bound to the Union's
interpretation when it agreed to the proposal, the Union strongly
argues.
Moreover,
when stripped to its essentials, the Company's position makes no sense, the Union
maintains. Even apart from the Union's belief concerning what the Company
agreed to in negotiations, the Union says it can think of no legitimate reason why
a company like Schindler, genuinely interested in safety, would not want its
field managers to set an example for the rest of the work force and undergo
appropriate testing. If the language of Par. 8 of the policy is to have any
meaning, the Union submits, it is that the Company's non-bargaining unit
employees are subject to the same testing as bargaining unit employees. If not,
then the very premise upon which the IUEC based its agreement with the company
to the policy -- that substance abuse was a serious problem that has to be
addressed and dealt with throughout all levels of the entire elevator industry,
with management setting an example for field employees -- is in doubt.
In
addition, the Company's claim that the Union breached the collective bargaining agreement was not
established, the Union forcefully asserts. The mere fact that the Union disagreed
with the Company's interpretation of Par. 8 hardly amounts to a contractual
violation. The Union maintains that the Company was required to establish that
the Union violated some specific requirement imposed upon it by the contract.
That did not occur here. There was no strike, no interruption of work or other
duties. In this case, Downie simply backed away when he learned of the Union's
position. Had Downie proceeded with the testing and directed the employees to
submit to the drug test, a grievance or even discipline arguably might have
been appropriate if employees failed to follow the Company's orders. However,
absent some affirmative action or threat by the Union or the bargaining unit
employees, the Company's claim of damages for contractual breach is precipitous
and should be denied.
Finally,
the Union argues that the damage claim itself is flawed. The Company failed to
establish exactly what damages were incurred. Even though the drug testing was
cancelled, the employees attended a training session. In so doing, travel time
was expended. The Company's contention that it should recover that travel time
would amount to a windfall, the Union submits. The damage claim must be denied in full.
Accordingly,
and for all the reasons set forth above, the Company's grievance should be
denied in its entirety.
VI. FINDINGS AND DISCUSSION
The
instant grievance filed by the Company presents a fundamental issue of contract
interpretation. How does an arbitrator charged with interpreting and applying a
collective bargaining agreement draw the line between an ambiguous contract,
requiring interpretation, and a contract in which the parties' intent can be
found in the words which they, themselves, employed to express their intent?
Certainly, there are various techniques, standards and rules used by arbitrators
in executing this function. But the test most often cited is that there is no
ambiguity if the contract is so clear on the issue that the intentions of the
parties can be determined using no other guide than the contact itself. If the
words are plain and clear, the Arbitrator need not resort to technical rules of
construction because the straightforward meaning of the language speaks for
itself. See, Ralphs Grocery Co., 109 LA 33, 35-36 (Kaufman, 1997); National
Linen Service, 95 LA 829, 834 (Abrams, 1990); Clean Coverall
Supply Co., 47 LA 272, 277 (Witney, 1966); Metropolitan Warehouse,
76 LA 14, 17 (Darrow, 1981); Safeway Stores, 85 LA 472, 475 (Thorp,
1985); Kennecott Copper Corp., Ray Mines Division, 72 ARB CCH, Par. 8849
(Abernathy, 1970).
The
distinguished jurist Learned Hand expressed this fundamental principle in the oft-quoted
case of Hotchkiss v. National City Bank, 200 F. 287, 293 (S.D.N.Y.1911),
aff'd, 201 F. 664 (2d. Cir. 1912):
A
contract has, strictly speaking, noting to do with the personal, or individual,
intent of the parties. A contract is an obligation attached by the mere force
of law to certain acts of the parties, usually words, which ordinarily accompany
and represent a known intent. If, however, it were proved by twenty bishops
that either party, when he used the words, intended something else than the
usual meaning which the law imposes upon them, he would still be held, unless
there were some mutual mistake, or something else of the sort.
This
principle is applied "even though the results are harsh or contrary to the
original expectations of one of the parties." Del E. Webb Corp., 48
LA 166 (Koven, 1967). A contract does not become ambiguous if one party
negligently uses a term that does not express the meaning intended by the
party. Klein Tools, 90 LA 1150, 1153 (Pointdexter, 1988). Moreover, it
is the responsibility of the drafter of the contract language to craft the
language in a fashion that does not leave the matter in doubt. Ash Grove
Cement Co., 112 LA 507, 511 (Wyman, 1999).
Applying
these basic tenets to the matter before me, I must conclude that a reading of
Par. 8 of the parties' substance abuse program enables me to answer the threshold
question posed by the parties. Does the substance abuse program require
the Company to drug test non-bargaining unit employees when testing bargaining
unit employees? The answer, plainly, is no.
Par.
8 bears repeating here. It states in pertinent part: "Substance abuse
testing and treatment measures are appropriate for all employer
non-bargaining unit employees, as well, including company executives and
officers." (emphasis added) The parties agree that the adjective "appropriate"
can be defined as "suitable," "fit," or "proper."
Roget's New Millennium Thesaurus, (1st Ed. 2005). It is a
non-mandatory term. Simply because something is suitable or would be proper
does not mean that it has to be done. The contract does not say, as it could
have, that substance abuse testing must be extended to or is required
for non-bargaining unit employees. The Arbitrator simply cannot interpret the word
"appropriate" to mean "required" or "mandated"
when the meaning of the words used so clearly dictates otherwise.
I recognize
that the Union has argued, to the contrary, that there is ambiguity
in the contract language which must be analyzed by evidence of bargaining
history. It is asserted that the Union made it clear during negotiations that Par. 8 was
intended to require the testing of non-bargaining unit employees when
bargaining unit employees were drug tested. The Union contends that the
Company's objection to the proposal -- evidenced when Stadelman threw up his hands
and stopped the discussion about extending the substance abuse program to
non-bargaining unit employees -- should be interpreted against the Company because
Management negotiators ultimately agreed to the meaning of the language to
which the Company now objects.
There
are several difficulties with that argument, however. First, extrinsic evidence
is generally deemed irrelevant where there is clear-cut contractual language,
as noted above. If an agreement is not ambiguous, it is improper to modify its
meaning by invoking the record of prior negotiations or permitting parol
evidence to modify the contract.
Equally
important, even if I were to look behind the four corners of the agreement and
examine the evidence concerning bargaining history, it is clear that the record
does not support the Union's position. As the Company correctly points out, the
parties have had a collective bargaining relationship for a long time. They are
sophisticated in drafting agreements. The negotiators for both parties are
veterans experienced in labor relations matters. They must be presumed to know
how to draft language which would create a mandate or a requirement.
Indeed,
in the second paragraph of Par. 8, the Union proposed, and the Company agreed, that "this statement
of principles shall apply to all employees represented by the International
Union of Elevator Constructors." (emphasis added) This sentence is mandatory.
It requires the stated principles to be applied to IUEC-represented
employees. By significant contrast, the mandatory term "shall apply"
was not used in describing the application of the substance abuse program to
non-bargaining unit employees. The substitution of the words "are
appropriate" can only mean that the testing and measures can be, but are
not required to be, applied to non-bargaining unit employees.
The Union drafted
this language, it must be remembered. Whatever its expressed intentions, it
chose to use language that did not create a requirement for non-bargaining unit
employees to be tested in conjunction with bargaining unit employees. Whether intentional
or not, the Union failed to use the terminology necessary to express
the meaning it apparently intended. Both the Union and the Company are bound
to the agreement they executed. In this case, that means there is no
requirement for substance abuse testing and treatment measures to be applied to
non-bargaining unit employees in the same way as they are applied to the
bargaining unit.
All
this is not to say that the laudable objectives of the Union were
unsuccessful. As the evidence presented at hearing demonstrated, non-bargaining
unit employees often visit the same job site where field employees work and
they are exposed to the same hazards involving heavy equipment and electrical
use. The Arbitrator understands the concern that, if impaired, non-bargaining
unit supervisors pose a potential danger in the same way as any bargaining unit
employee on the job.
However,
the Company has a substance abuse policy for its non-represented employees.
There is no indication that it is less stringent than the program applicable to
the bargaining unit. True, it does not provide for regular testing at six month
intervals -- a requirement now incorporated in the parties' collective
bargaining agreement -- but it does contain provisions for random testing and
other kinds of testing that clearly address many of the concerns about
substance abuse in the workplace. Thus, when the Company agreed to
"appropriate" testing and other measures for its non-represented
employees, it is easy to see why the Company believed they would be in
compliance with the substance abase program incorporated in the collective bargaining
agreement.
Concluding
as I do that the substance abuse program that is listed in the collective bargaining
agreement does not require the Company to test non-bargaining unit employees
when testing bargaining unit employees, we turn to the second issue posed by the
parties in this case. The Company claims that the Union violated
the labor contract by not allowing bargaining unit employees in the Company's Chicago, Illinois
office to be given drug tests unless non-bargaining unit employees were also
tested. After careful examination of the record evidence in its entirety, I am
unconvinced that there was a contractual breach or that damages were incurred
by the Company.
A
fair reading of the evidence shows that Region Operations Manager Downie notified
the Union in advance of the drug testing that was scheduled in December 2002. The
Union
responded that it did not agree with the Company's interpretation of the substance
abuse program and contended that non-bargaining unit employees should be tested
as well. At that point, Management was at a fork in the road. They could have demanded
that the bargaining unit comply with the drug testing or they could have cancelled
the testing until the matter was sorted out. As we know, the Company chose the
latter option. Had the employees been put to the test, we would have the
classic "obey now, grieve later" situation. Instead, what we have, at
best, is a difference of opinion regarding the interpretation of the contract.
It
is basic contract law that, where two contracting parties differ as to the interpretation
of the contract or as to its significance, an offer to perform in accordance with
the interpretation of one of the parties is not in itself an anticipatory
breach. In order to constitute such a breach, the offer must be accompanied by
a clear manifestation of intent not to perform in accordance with any other
interpretation. Corbin on Contracts, 1 Volume Ed., Sec. 973 (1952).
Absent a direct order by the Company or a refusal or threat by the Union not to
have the bargaining unit submit to the testing, the Company's claim of a
contract violation is simply premature. A disagreement as to the meaning of contractual
terms does not amount to a violation of the contract.
Finally,
there is no basis for a claim for damages in the instant case. Although the Company
prevailed on the first issue presented in this matter, it did not meet its
burden of establishing that there was a contractual breach in December 2002.
Equally important, the Arbitrator does not see how the Company was financially
harmed. It did not have to pay MEDTOX for any expenses incurred. Moreover,
despite the fact that the drug testing was cancelled, Schindler proceeded with
the safety training. Employees attended the training session. Whatever travel
time they would have incurred to be drug tested was necessary in any event to
attend the safety training. In fact, it would appear that the Company benefited
financially because employees returned to their jobs sooner than they otherwise
would have if they had to wait to be drug tested. The damages claim must be denied
for all these reasons.
In
sum, the evidence established that the parties agreed to precatory language in Par.
8 of the Substance Abuse program which does not require Schindler to test
non-bargaining unit employees in conjunction with the bargaining unit. The
Company is correct on that particular point. Under the facts at bar, however,
the Company failed to establish that the Union violated the terms of the collective bargaining
agreement by refusing to permit its members in the Chicago office
to take drug tests in December 2002. There was at best a disagreement on the
meaning of the contract, not a breach or violation of the collective bargaining
agreement. Finally, there is no basis for a finding that the Union should
make Schindler whole for losses sustained because of the Union's refusal
to permit bargaining unit employees to take drug tests in December 2002.
VII. AWARD
For
all the reasons set forth above and incorporated herein as if fully rewritten:
A. The substance abuse program listed in
the collective bargaining agreement does not require the Company to test
non-bargaining unit employees when testing bargaining unit employees.
B. Neither the IUEC nor Local 2 violated
the labor contract in December 2002 when they expressed their position that
bargaining unit employees should not be given drug tests unless non-bargaining
unit employees were also tested.
C. The Company's
claim for monetary damages is hereby denied.
________________________________
ELLIOTT
H. GOLDSTEIN, Arbitrator
Dated this 12th
day of December, 2005.
