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Verizon Washington, D.C. Inc. v. Communications Workers of America

August 5, 2008

VERIZON WASHINGTON, D.C. INC., PLAINTIFF,
v.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, DEFENDANT.



The opinion of the court was delivered by: Paul L. Friedman United States District Judge

OPINION

This matter is before the Court on the parties' cross motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.*fn1 Verizon Washington, D.C. Inc. ("Verizon") seeks partial vacation of an arbitration award rendered under a collective bargaining agreement between Verizon and the Communications Workers of America, AFL-CIO ("CWA"). CWA asks the Court to reject Verizon's request and to enforce the arbitration award in its entirety. Upon consideration of the parties' papers and the entire record in this case, the Court grants Verizon's motion, denies CWA's motion and partially vacates the arbitration award.

I. BACKGROUND

Verizon and CWA are parties to a collective bargaining agreement. See Complaint ¶ 1 ("Compl."). This dispute centers on Article 16B of that agreement. Article 16B, among other things, sets forth (1) the procedure Verizon must follow when creating or changing job titles and/or classifications, (2) the circumstances under which disputes between Verizon and CWA about such matters may be brought before an arbitrator, and (3) certain limits on the arbitrator's authority to fashion remedies if it is determined that the wage rates proposed by Verizon for the new or revised positions are inappropriate.*fn2

The undisputed facts are as follows. Verizon employs a group of employees called voice mail clerks. Voice mail clerks maintain the internal voice mail system used by Verizon employees "by creating, changing, and deleting voice mailboxes." Verizon Mot. at 3. In the late 1990s, the voice mail clerks' manager began assigning them additional duties on an occasional basis. See id. (additional duties included troubleshooting, investigating system problems and removal of old information). "For a period of time, because of these additional duties, Verizon paid the [clerks] temporary assignment pay over and above their normal salaries." Id. The additional pay -- unlike the additional duties -- "eventually ceased." Id.

In CWA's view, Verizon's assignment of additional duties to the voice mail clerks effectively re-classified them to a more skilled position, thereby entitling them to "a new [job] classification and higher wage rate." Verizon Mot. at 4. Verizon disagreed. CWA filed a grievance over this matter on December 9, 2001. That grievance was submitted to arbitration by CWA on July 28, 2003.

On February 28, 2006, Arbitrator Susan Mackenzie determined that Verizon's assignment of additional duties redefined the voice mail clerk position, and that Verizon had violated Article 16B by failing to give CWA notice and an opportunity to negotiate new wage rates for the voice mail clerks. See CWA Mot., Ex. 3, Opinion and Award of Arbitrator Susan T. Mackenzie at 12 (Feb. 28, 2006). Arbitrator Mackenzie therefore ordered Verizon to comply with the notice-and-negotiation requirements of Article 16B -- that is, she ordered Verizon to notify CWA of the changes to the voice mail clerk position and to engage in negotiations with CWA with respect to the clerks' job classification and wages. See id. at 13.

The parties attempted to negotiate these issues but were again unable to reach agreement. The dispute then was submitted to a second arbitrator pursuant to Article 16B.1(e) of the parties' agreement. The second arbitrator, Paul Gerhart, was charged with determining the proper classification and pay rate for the voice mail clerks. On May 30, 2007, Arbitrator Gerhart issued his award, concluding that the additional duties assigned to the voice mail clerks entitled them to a new classification and a pay raise. See Verizon Mot., Ex. A, Opinion and Award of Arbitrator Paul Gerhart at 53-57 (May 30, 2007) ("Gerhart Decision"). He therefore ordered Verizon to (1) create a new position called "senior voice mail clerk," (2) allow voice mail clerks with two or more years of experience in that position to apply for and immediately be promoted to the newly created senior voice mail clerk position, and (3) pay senior voice mail clerks at a rate of $22.20 per hour (rather than the rate of $21.44 per hour paid to voice mail clerks). See id. at 5, 56-57.

The substance of this remedy is not in dispute here; what is in dispute is Arbitrator Gerhart's decision to give it retroactive effect to December 9, 2001. Article 16B authorizes an arbitrator to "determine[] that a different schedule of [wage] rates is appropriate," and to make new wage rates "retroactive to the date the change or new job was implemented." CWA-Verizon General Agreement, art. 16B.1(f) at 25. It also expressly states, however, that if the arbitrator determines that a different wage rate is appropriate and that the new wage rate should apply retroactively, "in no event shall the retroactive effect [of a new wage rate] exceed 150 days." Id. Nevertheless, under Arbitrator Gerhart's award,

[a]ny Voice Mail Clerk with two or more years of actual service as of December 9, 2001 shall receive a pay adjustment reflecting the difference between what she (or he) actually earned and what she would have earned had she been properly classified as of that date. Any Voice Mail Clerk who achieved two years of actual service after December 9, 2001 shall receive a pay adjustment from the date on which they attained two years of actual service as a Voice Mail Clerk.

Gerhart Decision at 57. In other words, despite Article 16B.1(f)'s 150-day limit on the retroactivity of wage increases, Arbitrator Gerhart formulated a remedy that extended the retroactive effect of the wage increase as far back as December 9, 2001 for some individuals -- a date "nearly 2,000 days before the Award's issuance." Verizon Mot. at 2.

Verizon filed suit on August 13, 2007, asking the Court to vacate Arbitrator Gerhart's award to the extent that it extends the retroactive effect of the wage increase beyond 150 days. According to Verizon, that aspect of Arbitrator Gerhart's award must be vacated because it violates the parties' agreement and exceeds Arbitrator Gerhart's authority. See Compl. ¶ 30. CWA counterclaimed on September 4, 2007, asking the Court to enforce the award in its entirety. CWA maintains that Arbitrator Gerhart's award is entirely lawful and consistent with the parties' agreement. See CWA Mot. at 16. The parties filed cross motions for summary judgment on November 14, 2007.

The issue before the Court is a narrow one: Did Arbitrator Gerhart impermissibly disregard the parties' agreement and hence exceed his authority under that agreement by extending the retroactive effect of his remedy beyond 150 days? The Court concludes that the answer to that question is "yes." The Court therefore must vacate that aspect of the award and remand ...


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