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COMMUNICATIONS WORKERS OF AMERICA v. VERIZON SERVICES

August 30, 2005.

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, Plaintiff,
v.
VERIZON SERVICES, INC., et al., Defendants.



The opinion of the court was delivered by: COLLEEN KOTELLY, District Judge

MEMORANDUM OPINION

Presently before the Court are the parties' cross Motions for Summary Judgment. Plaintiff, the Union that represents Verizon workers, is suing Verizon over Verizon's failure to implement Plaintiff's interpretation of an arbitration award. The underlying dispute for which the parties sought arbitration concerns the time when Verizon employees must be permitted to take vacation days upon request. Although the arbitrator ruled in favor of Plaintiff, the parties now dispute whether the arbitration award requires Verizon to grant requests for vacation made with less than a day's notice.

After consideration of the parties' motions, briefs, and supporting documentation, as well as the underlying arbitration award and the relevant law, the Court finds that Plaintiff's Motion for Summary Judgment shall be granted, and Defendants' Motion for Summary Judgment shall be denied.

  I. MATERIAL FACTS NOT IN DISPUTE

  The material facts of this case are straightforward and undisputed. Plaintiff Communications Workers of America ("CWA" or "the Union") is the labor organization and collective bargaining representative for a unit of Verizon employees in the District of Columbia, Maryland, Virginia and West Virginia. Def.'s Stmt. ¶ 1. Defendants (collectively "Verizon") are two Verizon entities: Verizon Services, Inc., a Delaware corporation, and Verizon Maryland, a Maryland corporation. Id. ¶ 2. CWA and Verizon have been parties to successive collective bargaining agreements covering, in part, the working conditions of the employees in the bargaining unit represented by CWA. Id. ¶ 3.

  In late 1999 and early 2000, a dispute arose between Verizon and CWA over vacation scheduling procedures. Id. ¶ 10. The parties arbitrated this dispute before Arbitrator Margery Gootnick, who issued her Opinion and Award on May 1, 2000. Id. ¶¶ 10, 12. The dispute concerned the interaction of a portion of the 1998 General Agreement and a subsequent 1998 Memorandum of Understanding ("1998 MOU"). Id. ¶¶ 7-8. Article 31, Section 10 of the General Agreement addresses the allocation and administration of vacation time. Id. ¶ 7. The 1998 MOU addresses, among other issues, Vacation Scheduling Percentages and the "17 percent rule," which states that "[d]uring 1999, at least 17% of the employees in each vacation administrative work group shall be permitted to schedule off in a given week."*fn1 Id. ¶ 8. The parties' submitted the following Stipulated Issue to Arbitrator Gootnick: "Does the Company violate the 1998 Common Issues Memorandum of Understanding by denying vacation even though less that 17 percent of the work group is off; and, if so, what is the appropriate remedy?" Id. ¶ 11. Plaintiff has shown that at least one of the examples of a vacation request denial that led to the arbitration involved a last minute vacation request. See Pl.'s Mot. Ex. 5 (Lewis Grievance). The grievance filed by Anna Lewis involved a last minute request for vacation due to a death in her family, at a time when less than 17 percent of the work force was off. Pl.'s Mot. Ex. 5. Lewis' request for vacation was denied, and she was instead "granted excused time unpaid." Id. at 2.

  In the Opinion and Award, Arbitrator Gootnick found that the language of the 1998 MOU superceded the language of the 1998 General Agreement to the extent necessary to effectuate the 17 percent rule. Id. ¶ 12. Specifically, she held that "[t]he Company shall cease and desist from denying vacation or rescheduling of vacation when less than 17% of a work group is off." Id. ¶ 12. Specifically, the award states that "[t]he Memorandum of Understanding provides that at least 17% of the employees in each vacation administration work group shall be permitted to schedule off in a given week," and that "[t]here is nothing in the Memorandum of Understanding that requires a specific time period for scheduling (or rescheduling) vacation." Pl.'s Mot. Ex. 1 (Arbitration Award) at 24. The award states that "up to 17% of the employees in each work group can take vacation based on the earliest request on any day. The Company may deny vacation based on force and load only after 17% has been reached. . . ." Id. (emphasis added). Arbitrator Gootnick addresses the possibility that the award may result in last minute scheduling changes, finding that the Memorandum of Understanding "may require overtime or last minute scheduling of additional employees at certain times or getting by with the employees on duty. Nevertheless, the Union has satisfied its burden of establishing that the Memorandum of Understanding applies in all circumstances related to vacation." Id. at 31. She found "no language in the Memorandum of Understanding that limits its application," and that it "is broadly phrased and applies to all vacation selection and scheduling." Id. at 31-32. Ultimately, she held that "[t]he Memorandum of Understanding requires the Company to permit employees to take vacation in order of request whenever less than 17% of the work force is not off." Id. at 32.

  Although Arbitrator Gootnick's Award explicitly addressed the scheduling and rescheduling of vacation days, it did not deal substantively with the provision of the MOU addressing Short Notice Excused Workdays ("SNEWDs"),*fn2 which are a category of days off requested with less than 24 hours notice before the start of the worker's shift.*fn3 Id. ¶ 12. After the issuance of the arbitration award, the parties removed Arbitrator Gootnick from the panel of arbitrators eligible to decide grievances between the Union and Verizon. Id. ¶ 14; Def.'s Mot. Ex. F (Letter to Gootnick).

  The arbitration award notwithstanding, Verizon has denied vacation requests made with less than 24 hours notice. Compl. ¶¶ 15-16; Def.'s Stmt. ¶¶ 33, 35; Pl.'s Stmt. ¶ 6. In light of this circumstance, the Union subsequently requested that Arbitrator Gootnick accept remand on the question of whether Verizon is permitted to require advance notice for vacation requests, or whether vacation requests made within 24 hours of a worker's shift must be granted if less than 17 percent of the workgroup is scheduled for vacation.*fn4 Def.'s Stmt. ¶ 15; Def.'s Mot. Ex. G (Union Remand Request). Verizon opposed the Union's request to submit this question to Arbitrator Gootnick, arguing that the question raised a new issue outside the scope of the grievance that had been submitted to Arbitrator Gootnick. Def.'s Stmt. ¶ 16; Def.'s Mot. Ex. H (Verizon Objection to Remand). On December 6, 2005, Arbitrator Gootnick declined to accept remand. Def.'s Stmt. ¶ 17; Def.'s Mot. Ex. I (Gootnick Remand Declination). In her letter declining to accept remand, she wrote that "on the facts of this matter I am unable to accede to your request to assert authority to accept remand of the 17% Vacation Case for clarification purposes," and noted that "[a]ny further discussion of your documents and [Verizon's] letter would be inappropriate." Def.'s Mot. Ex. I (Gootnick Remand Declination).

  II. LEGAL STANDARD

  A party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Although a court should draw all reasonable inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The adverse party's pleadings must evince the existence of a genuine issue of material fact. See id. at 247-48. To be material the factual assertion must be capable of affecting the substantive outcome of the litigation; to be genuine, the issue must be supported by sufficiently admissible evidence such that a reasonable trier-offact could find for the nonmoving party. See id.; Aka v. Washington Hosp. Ctr., 116 F.3d 876, 879 (D.C. Cir. 1997); Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987). Mere allegations or denials in the adverse party's pleadings are insufficient to defeat an otherwise proper motion for summary judgment. Rather, the nonmoving party bears the affirmative duty to present, by affidavits or other means, specific facts showing that there is a genuine issue for trial; not simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Anderson, 477 U.S. at 248-49. No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id. at 587.

  III. DISCUSSION

  The parties to this suit have filed cross motions for summary judgment, and do not dispute the surrounding facts and circumstances. Rather, the parties dispute whether Arbitrator Gootnick's award requires Verizon to grant workers' vacation requests made with less than 24 hours notice. Verizon contends that the issue of such short notice requests was not part of the arbitration award, and that the question must be submitted for a separate arbitration proceeding. The Union contends that the Arbitrator's award contemplated these short notice requests, and asks the Court to require Verizon to grant vacation requests made with less than 24 hours notice. In the alternative, the Union would have the Court order a remand to Arbitrator Gootnick to clarify her award on this point.

  After consideration of the parties' arguments, it is clear to the Court that Arbitrator Gootnick's award applied the 17 percent rule to vacation requests made at any time. It is also clear that the issue of the timing of vacation requests was considered as part of the original arbitration, and that Verizon should have raised any related arguments, including the relevance of SNEWDs, during the original arbitration. The record compels the Court to find that the arbitration award is unambiguous, and applies the 17 percent rule to vacation requests made at any time, including the 24 ...


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