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Communications Workers of America v. Southwestern Bell Telephone Co.

United States District Court, W.D. Texas, Austin Division

April 5, 2019

COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO
v.
SOUTHWESTERN BELL TELEPHONE COMPANY; et al.

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE

         Before the Court are Defendants' Motion for Summary Judgment on Plaintiff's Complaint and Defendants' Counterclaim (Dkt. No. 23); Plaintiff's Motion for Summary Judgment (Dkt. No. 24); and the various Response and Reply briefs. The District Court referred the above-motions to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(B), Fed.R.Civ.P. 72, and Rule 1(d) of Appendix C of the Local Court Rules.

         I. GENERAL BACKGROUND

         Communications Workers of America, AFL-CIO (“the Union”) and Southwestern Bell Telephone Company have had a decades-long bargaining relationship and are parties to a collective bargaining agreement, the current 2013 version of which is in effect through April 10, 2021 (“CBA”). The CBA contains an arbitration clause, as well as a grievance procedure the Union must follow in presenting to and discussing employee grievances with Southwestern Bell. If after following all of the grievance procedures the parties have not resolved a dispute, then the matter must be submitted to arbitration. The CBA arbitration clause incorporates the American Arbitration Association's Rules for Labor Arbitration to govern arbitration between the parties.

         During Southwestern Bell and the Union's collective bargaining in 2009, the parties addressed the scope of work Southwestern Bell could assign to certain outside employees called “Premises Technicians” agreeing to the following language in the “2009 Settlement Agreement” that contains all changes made during bargaining:

         1. In addition to the current job duties performed by Premises Technicians, the Company intends to:

a. Assign Premises Technicians all work from and including the Serving Terminal[1] up to and including the customer premises for IP enabled products and services.

Dkt. No. 22-14 (Appendix J to the CBA). The parties have not modified the above-language and it is therefore still in effect. The job description for Premises Technicians was also modified after the 2009 negotiations to include the ability of Southwestern Bell to assign Premises Technicians “all work” at the serving terminal, tracking the language of the Agreement. Dkt. No. 23 at p. 3.

         In 2015, Southwestern Bell began to train and assign Premise Technicians to splice fiber optic cables at serving terminals in Austin, Texas. Dkt. No. 22-6. Thereafter, the Union filed a formal grievance alleging that Southwestern Bell improperly trained and/or assigned Premises Technicians to perform a specific task that should have been assigned to higher grade technicians.

         Specifically, the grievance stated the following:

This grievance is to challenge the Company's training and/or assigning the work of Cable Splicing Technicians and/or Customer Service Technicians to Premises Technicians, on or about April 6, 2015 in Austin, TX. Specifically, Premises Technicians are being trained and/or assigned to use a mechanical splice to join two bare fibers together for connectivity to the house. The Premises Technician strips fiber, cleans fiber, cleaves fiber, places the bare ends of the fiber into a mechanical connector, locks them in place, and then forms a splice into the splice tray. The training and/or assignment of this work violates the 2013 Negotiating Report, p. 15, paragraph 8(D)(1).

Dkt. No. 22-3 at 7. After the parties failed to settle the dispute in the grievance process, the Union requested a hearing before an arbitrator.

         In October 2017, the parties had a hearing before an arbitrator. At the hearing, the Union introduced Union Exhibit 4, over Southwestern Bell's objection, which summarized an agreement reached between AT&T's Midwest Region (not Southwestern Bell) and a different district governed by a different CBA, that addressed express limitations those parties had reached on their Premises Technicians' ability to perform fiber splicing work. Because Union Exhibit 4 involved different parties, it was irrelevant to Southwestern Bell's collective bargaining history and to the dispute between the Union and Southwestern Bell. Instead, the language of the CBA at issue in the parties' dispute permitted the Southwestern Bell to assign Premises Technicians “all work from and including the Serving Terminal up to and including the customer premises for IP enabled products and services.” Dkt. No. 22-14.

         The Arbitrator issued an Opinion and Award finding that Southwestern Bell violated the CBA, relying on Union Exhibit 4. See Dkt. No. 22-38 (“January Award”). While the Arbitrator noted that no language in the CBA precluded Premises Technicians from performing splicing work, he found that Union Exhibit 4 reflected Southwestern Bell's and the Union's bargaining history on Premises Technicians-even though the exhibit related to a different group of parties and a different CBA. His award stated:

Nevertheless, Union Exhibit 4 reveals the established method in which the parties utilize to make changes to a Premises Technician's job duties. Changes to the Premises Technician Job duties, as Union Counsel emphatically attempted to stress to the Arbitrator during the arbitration proceedings, and the Company failed to adequately refute, has always been a matter subject to negotiations. Thus, Management's attempt to include the subject changes, which are enumerated in Union Exhibit 4, into the subsequent Settlement Agreement, did not coincide with the practice utilized in the past by both parties concerning changes to the Premises Technician job duties.

Dkt. No. 22-38 at 9. The Arbitrator concluded that the “Company's decision to unilaterally apply new job duties without consulting the bargaining unit marked a violation of the long-standing practice that the parties share.” Dkt. No. 22-38 at 10.

         Upon receiving the award, Southwestern Bell filed a Request for Reconsideration, pursuant to AAA Labor Arbitration Rule 40, pointing out that the Arbitrator mistakenly relied on Exhibit 4 to find a violation of the Agreement. Dkt. No. 22-39. The Union objected to the motion, arguing that Rule 40 only permits the correction of “clerical, typographical, technical or computational errors in the award, ” and that Southwestern Bell was not requesting such a correction but instead was asking to redetermine the merits of the award, something prohibited under Rule 40. The Arbitrator disagreed, and in February 2018, he rescinded the original award and issued a new Award denying the grievance and finding that “no contractual violation occurred.” Dkt. No. 22-44 at 2 (February Award). Specifically, the Arbitrator determined that a “technical error was committed by the Arbitrator's misjudgment on the application of Union Exhibit 4, and the Arbitrator is obliged to correct the noted mistake.” Id. at 1.

         The Union thereafter filed this lawsuit. It brings the case under the Labor-Management Relations Act of 1947, seeking to vacate the February Award and reinstate the ...


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