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August 29, 2003


The opinion of the court was delivered by: John Facciola, Magistrate Judge


There have been referred to me for Report and Recommendation the following motions: Plaintiff's Motion for Summary Judgment, Defendant's Motions to Compel Designation of a Witness Pursant to Rule 30(b)(6) and of Elaine Harris, Plaintiff's Motion to Strike Verizon's Affirmative Defenses, and Defendant's Motion That Defendant's Second Request for Admission Be Deemed Admitted.

Nature of the Case

Plaintiff, Communications Workers of America, prevailed at arbitration over a question relating to union-member vacation. The parties disagree on the scope of the award, and plaintiff is requesting that this Court enforce the arbitrator's award. Currently pending before me are defendant's motions to compel depositions, plaintiff's motion for a protective order, plaintiff's motion for summary judgment, and defendant's 56(f) motion. [ Page 2]


Plaintiff, Communications Workers of America ("CWA" or "Union"), entered into a Collective Bargaining Agreement ("CBA") with defendant, Verizon Services, Inc. ("Verizon"). In the Matter of the Arbitration Between Communications Workers of America — AFL-CIO and Bell Atlantic Network Services, Inc., Issue: 17% Vacation Selection ("Award") at 9. Covered in the CBA is the administration of vacation for CWA employees. Id. at 9-10. Article 31, Section 10 of the CBA governs the selection of vacation days and has remained unchanged since 1980. Id. at 9. The selection process occurs in two rounds. Id. at 8-10. In the first round, employees choose whole weeks of vacation. Id. The second round allows employees to choose single days off. Id. Vacation time that is not used by an employee in these first two rounds becomes "reserved" time. Id. All of the vacation selection is then completed by the end of March each year. Id.

In 1998, in response to a potential strike, the parties came to a new agreement and memorialized it in a Memorandum of Understanding ("MOU"). Id. at 13. The MOU deals with the number of employees that can be scheduled for vacation at any one time. Id. at 8. After the 1998 MOU, Union employees were permitted to request, and defendant was required to schedule, vacation up until 17% of the employee's workgroup was out ("17% rule"). Id. at 8. During the negotiations for the MOU, as found by the arbitrator, the parties never discussed the 17% rule in terms of selection. Id. at 15. Instead, the negotiation and ultimate agreement were founded on the scheduling of vacation days. Id.

Prior to the 1998 MOU, Union employee time-off scheduling was governed by force and load requirements. Id. at 7. Essentially, managers would forecast the demands on the [ Page 3]

workgroup and allow employees to schedule time off so long as the demand was met. Id. at 7-8. In addition, the past practice required employees to make vacation scheduling requests no sooner than twenty-four hours before their shifts began. Plaintiff's Motions: To Strike Verizon's Affirmative Defenses and for a Protective Order; In Opposition to Defendant's Motion to Compel and for Delay Under Rule 56(f) ("Omnibus Motion"), James Davis Deposition at 97-100. If an employee needed time off for a shift that started within twenty-four hours, he or she was required to request a Short Notice Excused Work Day ("SNEWD"). Id. Every employee had three paid, and one non-paid, SNEWDs per year. Declaration of Mark F. Wilson at Exhibit 6.

Shortly after it was signed, a disagreement arose between the parties over the scope of the MOU. Award at 8-9. The Union's understanding was that the 17% rule applied when an employee requested vacation and less than 17% of his or her workgroup was scheduled for vacation regardless of when the request was made. Id. Verizon, however, interpreted the MOU to mean that if the vacation request was made after the close of the selection rounds, it was outside the scope of the 17% rule. Id. Such a request could be denied if the force and load demands were not met regardless of the workgroup's scheduled vacation percentage. Id. Verizon's belief was based on past practices. Id. Prior to the MOU, vacation scheduling was not guaranteed on short notice. Omnibus Motion, James Davis Deposition at 97-100. Once the twenty-four hour mark elapsed, time-off requests were governed by SNEWD procedures. Id.

Following the requirements of the CBA, CWA filed a grievance regarding Verizon's refusal to schedule vacation on short notice in line with the MOU. The CBA called for disputes of this nature to be settled by arbitration, and the parties subsequently arbitrated the matter. [ Page 4]

Answer at ¶ 6. Ultimately, the arbitrator, Margery Gootnick ("Gootnick"), found that both parties agreed to the MOU and that the agreement was made by representatives who had the authority to make such an agreement. Therefore, according to Gootnick, the MOU "trumped" the CBA. Award at 30-31. Furthermore, Gootnick found that scheduling and selecting vacation were independent procedures. Id. at 11. Gootnick concluded that the MOU allowed employees to schedule vacation only if 17% of their workgroup was not already on vacation. Id. at 32.

Since Gootnick's ruling, Verizon continues to refuse vacation schedule requests that are given on short notice. Answer at ΒΆ 15. Verizon asserts that, because Gootnick was aware that her authority did not extend to SNEWD matters, her award could not possibly extend to vacation requests within twenty-four hours of an employee's shift. Defendant's Statement of Points and Authorities in Opposition to Plaintiff's Omnibus Motion of March 11, 2003 ("D. Opp. Omnibus Motion") at 5. Therefore, according to Verizon, under CWA's interpretation, Gootnick's award exceeds the authority of the arbitrator. Id. at 5-7. Furthermore, Verizon asserts that CWA's subsequent filing of a grievance over an identical issue is evidence that the case is not yet ripe for litigation. Id. at 5. Instead, the administrative ...

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