Summons: INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL vs. OHIO MACHINERY CO. D.B.A. OHIO CAT WESTERN REGION

On August 22, 2023 a Summons was filed involving a dispute between International Union Of Operating Engineers, Local 18, and Ohio Machinery Co. D.B.A Ohio Cat Western Region, for MISCELLANEOUS - OTHER in the District Court of Cuyahoga County.

Preview
NAILAH K. BYRD
CUYAHOGA COUNTY CLERK OF COURTS
1200 Ontario Street
Cleveland, Ohio 44113

Court of Common Pleas

New Case Electronically Filed: COMPLAINT
August 22,2023 16:40

By: TIMOTHY R. FADEL 0077531

Confirmation Nbr. 2944242

INTERNATIONAL UNION OF OPERATING CV 23 984359
ENGINEERS, LOCAL

vs.
Judge: SHANNON M. GALLAGHER
OHIO MACHINERY CO. D.B.A. OHIO CAT WESTERN
REGION

Pages Filed: 53

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
in the court of common pleas
cuyahoga county, ohio
civil division
)
international union of ) CASE NO.:
operating engineers, )
local 18, )
3515 Prospect Ave, ) JUDGE:
Cleveland, Ohio 44115 )
) APPLICATION FOR ORDER TO
applicant, ) CONFIRM AND ENFORCE
) ARBIRTATION AWARD WITH
V. ) INTEREST AND ATTORNEY FEES

OHIO MACHINERY CO. d.b.a. )
OHIO CAT WESTERN REGION )
C/O Statutory Agent )
Ohio Machinery Co. )
3993 E Royalton Rd
)
Broadview Hts., Ohio 44147
)
)
Defendants.
)
)
ALSO SERVE: )
Statutory Agent )
Business Services LLC, )
)
600 Superior Ave., E, Suite 2100
)
Cleveland, OH 44114 )

Now comes Applicant, International Union of Operating Engineers, Local 18 (“Union” or

“Local 18”), by and through the undersigned counsel, and pursuant to R.C. 2711.09, hereby

submits the following Application for Order Confirming and Enforcing an Arbitration Award

against Respondent Ohio Machinery Co. d.b.a. Ohio CAT Western Region (“CAT”).

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
Respectfully submitted,

/s/ Timothy R. Fadel__________
TIMOTHY R. FADEL (0077531)
Fadel & Beyer, LLC
The Bridge Building
18500 Lake Road, Suite 300
Rocky River, Ohio 44116
Phone: (440) 333-2050
Fax: (440) 333-1695
tfadel@fadelbeyer.com
Counselfor Applicant International Union of
Operating Engineers, Local 18

introduction

1. This action is brought pursuant to Chapter 2711 of the Ohio Revised Code, for an order to

confirm and enforce an arbitration award issued by Arbitrator Jane Desimone on August

25, 2022, and an April 24, 2023, clarification of the award also issued by Arbitrator Jane

Desimone.

2. The August 25, 2022, Arbitration Opinion & Award is attached hereto as “Exhibit A”.

3. The April 24, 2023, Clarification of the Opinion & Award is attached hereto as “Exhibit

B”.

parties

4. Applicant Union is a labor organization with its principal place of business located at 3515

Prospect Avenue, Cleveland, Ohio 44115.

5. Local 18 represents over 15,000 members working across the State of Ohio in various

industries including construction and heavy industry.

6. CAT is an authorized representative of heavy equipment manufacturer Caterpillar, Inc.,

and is the only entity authorized to sell and service Caterpillar, Inc. brand equipment in

Ohio.

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
7. CAT is headquartered at 3993 E Royalton Rd, Broadview Hts., Ohio 44147.

8. CAT owns and operates a series of shops and dealerships across the state of Ohio.

9. For decades, Local 18 has served as the sole and exclusive bargaining representative for

the repair and maintenance technicians employed by CAT.

jurisdiction and venue

10. The Court has jurisdiction to Confirm and Enforce this Arbitration Award pursuant to R.C.

2711.16.

11. Venue is appropriate in Cuyahoga County, Ohio, pursuant to R.C. 2711.16, as both Local

18’s and CAT’s principal place of business are located in Cuyahoga County.

facts

12. At all relevant times, Local 18 and CAT were parties to a Collective Bargaining Agreement

(“CBA”) which served to govern the terms and conditions of employment for CAT

employees represented by the Union.

13. The CBA constitutes a valid and binding written contract.

14. A copy of the CBA is attached hereto as “Exhibit C.”

15. Article XXIV of the CBA is entitled “Disputes” and Article XXV is entitled “Arbitration”.

16. Together, Article XXIV and Article XXV provide an exclusive arbitral mechanism for the

resolution of disputes or controversies arising from the meaning, misapplication, or

misinterpretation of the specific and express written provisions of the CBA. (Ex. C at Art.

XXIV, Section 1.)

17. Pursuant to Article XXV of the CBA, the grievance procedure culminates in final and

binding arbitration. (Ex. C. at Art. XXV.)

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
18. Article IX of the CBA entitled “Performance Review”, governs the use and frequency of

employee performance reviews. (Ex. C at Art. IX.)

19. Pursuant to Article XXIV and Article XXV, the Union filed and processed a grievance

challenging the CAT’s decision as it relates to the frequency of performance reviews.

20. The Federal Mediation and Conciliation Service designated Arbitrator Jane Desimone as

the parties’ mutually selected arbitrator to preside over the arbitration of the performance

review grievance.

21. An arbitration hearing was held on May 17, 2022, at which time the parties were afforded

a full opportunity to present documentary evidence, direct and cross-examine witnesses,

and offer rebuttal testimony.

22. On August 25, 2022, Arbitrator Desimone issued an Opinion & Award that sustained the

Union’s grievance and, after finding that CAT violated the CBA when it failed to conduct

semi-annual performance reviews, ordered CAT to “retroactively conduct performance

reviews from July 2021 *** and to retroactively apply any wages increases resulting from

those performance reviews.” (Ex. A at pg. 10.)

23. On April 24, 2023, Arbitrator Desimone issued a clarification of the August 25th Opinion

& Award that clarified the effective date of the Opinion & Award as being the date when

the original grievance was filed and further ordering CAT to apply the Opinion & Award

to all union members.

24. To date, Parkhurst has failed to comply with the Arbitrator’s August 25, 2022, Opinion &

Award, the April 24, 2023, Clarification of the Opinion & Award, and the parties disagree

as to the amount of backpay owed.

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
counti

25. The Union alleges and incorporates Paragraphs 1 through 24 of its Application for Order

to Confirm and Enforce Arbitration Award herein.

26. According to Article XXIV of the CBA, disputes or disagreements concerning the

meaning, application, or interpretation of the provisions of the CBA shall be settled in

accordance with the contractually mandated grievance and arbitration procedure. (Ex. C at

Art. XXIV.)

27. Pursuant to Articles XXIV and XXV of the CBA, the grievance procedure culminates in

final and binding arbitration. (Id.)

28. The August 25, 2022, Opinion & Award sustained the Union’s grievance and ordered CAT

to “retroactively conduct performance reviews from July 2021 *** and to retroactively

apply any wages increases resulting from those performance reviews.” (Ex. A at pg. 10.)

29. The April 24, 2023, clarification of the August 25th Opinion & Award that clarified the

effective date of the Opinion & Award as being the date when the original grievance was

filed and further ordering CAT to apply the Opinion & Award to all union members.

30. To date, CAT has: failed to retroactively conduct performance reviews; failed to

retroactively apply any wages increases resulting from those performance reviews; and

failed to apply the Opinion & Award to all union members.

31. Pursuant to R.C. 2711.09, at any time within one year after an arbitration award is issued,

any party to the arbitration may apply to the court of common pleas for an order confirming

said award. The court of common pleas shall grant an order confirming the arbitration

award and enter judgment thereon, unless the award is vacated, modified, or corrected as

prescribed in sections 2711.10 and 2711.11 of the Revised Code.

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
32. Pursuant to R.C. 2711.12, after granting an order to confirm an arbitration award, the court

of common pleas must enter judgment in conformity.

33. There is no basis to vacate or modify the Arbitration Award at issue under R.C. 2711.10 or

R.C. 2711.11.

34. Further, it has been more than three (3) months since the Arbitrator issued the Opinion &

Award and the April 24, 2023, Clarification of the Opinion & Award, thus, according to

R.C. 2711.13, the Awards cannot be challenged under R.C. 2711.10 or R.C. 2711.11.

35. Pursuant to R.C. 2711.09 and 2711.12, the Court has the authority to issue an order and

enter judgment thereon confirming the Arbitrator’s August 25, 2022, Opinion & Award,

and the April 24, 2023, Clarification of the Opinion & Award.

36. Pursuant to R.C. 1343.03, the Court has the authority to issue an order requiring CAT to

pay pre-judgment and post-judgment interest at the statutory rate established under R.C.

5703.47, commencing August 25, 2022, the date the Arbitrator’s Award was issued, until

such time as CAT compensates all affected Union members.

37. Pursuant to R.C. 2323.51, the Court has the authority to issue sanctions and order CAT to

pay the Union reasonable attorney fees and expenses incurred in connection with CAT’s

refusal to comply with the terms of the Arbitrator’s August 25, 2022, Opinion & Award

and the April 24, 2023, Clarification of the Opinion & Award.

remedy requested

WHEREFORE, Applicant, International Union of Operating Engineers, Local 18 hereby

respectfully requests the following:

a) An order from the Court confirming the Arbitrator’s August 25, 2022, Opinion &

Award and the April 24, 2023, Clarification of the Opinion & Award;

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
b) A hearing to determine the correct amount of backpay CAT owes to Union

members;

1) If a hearing is set, an order allowing the parties to engage in discovery for

the purpose of presenting evidence at the hearing establishing the correct

amount of backpay owed;

c) An order from the Court requiring CAT to make the affected Union members

whole, in the amount determined by the Court;

d) An order pursuant to R.C. 1343.03 requiring CAT to pay pre-judgment and post

judgment interest at the statutory rate established under R.C. 5703.47, commencing

August 25, 2022, the date the Award was issued, until CAT compensates the

affected Union members;

e) A hearing pursuant to R.C. 2323.51(B)(2) to determine whether CAT’s conduct

was frivolous, whether any party was adversely affected by it, and to determine, if

an award of attorney fees is to be made, the amount of the award.

1) If, as a result of the R.C. 2323.51(B)(2) hearing, the Court determines

CAT’s conduct warrants an award of attorney fees, an order issuing

sanctions pursuant to R.C. 2323.51, requiring CAT and its attorney to pay

the Union reasonable attorney fees and expenses incurred in connection

with CAT’s bad faith conduct.

Respectfully submitted,

/s/ Timothy R. Fadel__________
TIMOTHY R. FADEL (0077531)
Fadel & Beyer, LLC
The Bridge Building
18500 Lake Road, Suite 300
Rocky River, Ohio 44116

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
Phone: (440) 333-2050
tfadel@fadelbeyer.com
Counselfor Applicant International
Union of Operating Engineers, Local 18

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
FEDERAL MEDIATION AND CONCILIATION SERVICE

IN THE MATTER OF ARBITRATION ] DECISION IN
1 PERFORMANCE REVIEW
Between ] CASE
1
INTERNATIONAL UNION ]
OF OPERATING ENGINEERS, LOCAL 18 ]
]
and ]
]
OHIO CAT WESTERN REGION ]

FMCS CASE NO. 2210727-00694

GRIEVANCE: The grievance protests the Company’s scheduling of
performance reviews.

AWARD: The grievance is sustained.

HEARING: May 17, 2022 (virtual)

RECORD CLOSED: July 25, 2022

AWARD DATE: August 25, 2022

ARBITRATOR: Jane Desimone, Esq.

APPEARANCES

COMPANY UNION
David W. Schelberg, Esq. Timothy R. Fadel, Esq.
Joe Coleman, General Mgr.
Rick Hensel, Product Mgr.

Electronically Filed 08/22/2023 16:40 / ICV 23 984359 I Confirmation Nbr. 2944242 / CLAJB
EXHIBIT A
ADMINISTRATION

By notice dated December 15, 2021, the undersigned was notified by the Federal

Mediation and Conciliation Service of her selection by the parties to hear and decide this matter

then in dispute between them. Accordingly, a virtual hearing was held on May 17, 2022, at which

the parties were provided a full opportunity to present evidence, both written and oral, and to

argue their respective positions. The hearing was transcribed. At the conclusion of the hearing,

the parties requested additional time in which to submit post-hearing briefs. Submissions were

received and exchanged by the undersigned on July 25, 2022. This matter is now ready for final

disposition in accordance with the parties’ grievance arbitration procedure.

GRIEVANCE AND ISSUE TO BE RESOLVED

On August 3, 2021, the International Union of Operating Engineers, Local 18 (hereafter

referred to as the “Union”) filed a Grievance Form with Ohio CAT - Western Region (hereafter

referred to as the “Company” or the “Employer”), stating in pertinent part as follows (Joint Ex.

4):
STATEMENT OF FACTS
Members denied semi-annual review per Article IX - Performance Review Section 2

RESOLUTION SOUGHT
Members receive their semi-annual review, and eligible wage increases

The issue to be determined is whether the Company violated the Agreement in the

scheduling of performance reviews?

PERTINENT PROVISIONS OF THE AGREEMENT

The following pertinent provisions of the collective bargaining agreement*
1 were cited by

the parties in support of their respective positions (Joint Ex. 1):
ARTICLE III - MANAGEMENT RIGHTS

Section 1 Except to the extent expressly abridged by a provision of this Agreement, the Employer
reserves and retains, solely and exclusively, all of its inherent rights to manage the business and to
direct, control and schedule operations.

Section 2 Specifically, but without in any manner limiting the generality of the foregoing, the
Employer prerogatives shall include the right in its sole discretion to...determine performance
levels and evaluate job performance; determine merit raises, transfers, promotions...

AGREEMENT Between Ohio CAT - Western Region And International Union of Operating Engineers Local Union Nos.
18,18A, 18B and 18C, February 1, 2018 through January 31, 2021 (hereafter referred to as the "Agreement").

1
Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 I CLAJB
Section 3. The Employer shall have the right to establish, maintain and enforce reasonable work
rules w hich are not inconsistent with the express provisions of this Agreement.

Section 4 All matters subject to collective bargaining were open for negotiations and the
understandings and agreements arrived at between the parties are set forth fully and completely in
this Agreement. No past practice, policy or benefit need be continued unless expressly required
herein.

ARTICLE IX - PERFORMANCE REVIEW

Section 2 Performance reviews will occur every' six (6) months, except that those employees
who are classified as Serviceman 1, and who have received two (2) twenty-five percent (25%) of
the range merit increases will be evaluated annually. At the time formal evaluation reviews are
given, employees may receive additional increases based on merit as determined by the
Employer...

FACTUAL BACKGROUND

Ohio CAT is the sole representative of Caterpillar, Inc., in Ohio, it being the only entity

authorized to sell and service Caterpillar brand equipment and power systems in Ohio and

Kentucky. The Company’s mechanics and service employees, referred to as Servicemen, are

represented by the Union in two bargaining units — Ohio CAT Western Region and Ohio CAT

Eastern Region. This matter concerns bargaining unit members in the Western Region, who

service and repair equipment at five facilities in Ohio and Kentucky. In particular, it arose out of

the Columbus facility, which is the largest of the five facilities.

As defined by the Agreement, bargaining unit members fall within six classifications,

ranging from Utility to Serviceman 1. The entire list of classifications is that of Utility, Trainee,

Serviceman 4, Serviceman 3, Serviceman 2, and Serviceman 1. Employees in the Utility and

Trainee classifications have lesser skills and qualifications. As skills and proficiency are

obtained, employees rise through the recognized classifications, with the highest classification

being Serviceman 1, which has the highest pay range. Article X of the Agreement sets the rate of

pay ranges for each classification for each contractual year. In addition, bargaining unit members

in all classifications are eligible for a merit based pay increases that are based upon a

performance reviews. The performance review process is set forth in Article IX of the

Agreement, and carried out in accordance with the Company’s Pay For Performance

Management Guidebook.

Prior to July of 2021, most bargaining unit employees at the Columbus facility received

two performance reviews per year — in February and July. The exception w'as employees in the

2
Electronically Filed 08/22/2023 16:40 I I CV 23 984359 I Confirmation Nbr. 2944242 I CLAJB
Serviceman 1 classification who had already reached the mid-point of their range of pay. These

employees only received an annual performance review. Regional Product Support Manager

Rick Hensel testified that this was the standard practice at the Columbus facility during his

tenure in his position from 2005 until July of 2021.

As explained by Manager Hensel, this practice changed after a conversation he had with

General Product Support Manager Joe Coleman during the summer of 2021. Mr. Hensel recalled

that when General Manager Coleman informed him that performance reviews should only be

performed on an annual basis once an employee obtains two 25% range merit increases within a

pay range, he informed Mr. Coleman that this was not how performance reviews had been

carried out in the past. After changing the frequency of performance reviews in accordance with

General Manager Coleman’s directive , the number of performance reviews conducted each year

for many employees at the Columbus facility changed from two to one. This change in practice

was not announced to the Union, but rather, was explained to each employee that inquired as to

why a second performance review had not been conducted.

General Manager Joe Coleman has been employed by the Company since April 3, 1989.

Manager Coleman agreed that prior to July of 2021, employees at the Columbus facility had two

performance reviews each year, in July and February. Mr. Coleman testified that this was in

error, as he believed that the Agreement only required one performance review per year for all

employees who have already achieved two 25% range merit increases within their pay range. He

pointed that his understanding of the correct practice was consistent with how performance

reviews have been conducted at all of the facilities other than the Columbus facility. Mr.

Coleman testified that performance reviews should be conducted in accordance with the Pay For

Performance Management Guidebook. He stated his opinion as follows (N.T., 5/17/2022, pg.

79):

That in any serviceman classification they’re eligible for two 25 percent of the
merit wage range increase. Once they receive two 25 percent of the merit wage
range increase and were above the midpoint of the wage range, they would
receive — go on an annual performance review...

3
Electronically Filed 08/22/2023 16:40 / / CV 23 984359 I Confirmation Nbr. 2944242 I CLAJB
CONTENTIONS OF THE PARTIES

Union

The Union contends that the clear and unambiguous contractual language at issue in this

matter requires a determination that the Company violated the Agreement by unilaterally

discontinuing semi-annual performance reviews for a select number of bargaining unit members.

With the arbitrator’s authority confined to the interpretation and application of the collective

bargaining agreement, clear and unambiguous language must be given its plain meaning. In this

matter. Article IX, Section 2 of the Agreement mandates that “performance reviews will occur

every six months.” The Union emphasizes that with the use of the word “will” the parties agreed

that performance reviews are required on a semi-annual basis, with the exception of “employees

who are classified as Servicemen 1, and who have received two (2) twenty-five percent (25%) of

the range merit increases”. It further argues that the Company’s attempts to stretch this stated

exception to all classifications is specifically prohibited by the contractual interpretation rule that

holds that the expression of a specific thing excludes the other thing. The Union believes that the

only acceptable interpretation of Article IX, Section 2 of the Agreement is that performance

reviews are required every six months, outside of the stated exception.

The Union discounts the Company’s assertion that the practice of providing semi-annual

reviews was an error limited to the Columbus facility. It notes that no evidence was submitted

establishing that the contractual language was applied differently at other facilities. To the

contrary, it maintains that for many years, semi-annual performance reviews have been

conducted at the Columbus facility. As such, even if the contractual language is found to be

ambiguous, the parties’ past practice supports the Union’s position. The Union summarizes these

arguments and sets forth the requested remedy as follows in its post hearing brief:

A preponderance of the evidence adduced in this matter shows that CAT violated
the CBA’s clear language by unilaterally altering the frequency of performance
reviews. The Union therefore respectfully requests that the Arbitrator enter an
Opinion & Award finding that CAT violated the CBA and, for any bargaining unit
member that was improperly denied their semiannual performance review(s),
order CAT to retroactively perform performance reviews and retroactively apply
any and all wage increase(s) resulting from said performance review(s). The
Union further requests that the Arbitrator retain jurisdiction over this matter for

4
Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 I CLAJB
the purpose of resolving any dispute as to the appropriate remedy or calculation of
amounts due and owing.

Company
The Company argues that this grievance should be denied. It maintains that in changing

the practice at the Columbus facility to one performance review per year for most employees, it

corrected an error that was limited to that facility. Citing to what it believes to be a plain reading

of Article IX, Section 2 of the Agreement, the Company argues that it appropriately corrected its

error. Had the parties intended for the annual performance reviews exception to apply to all

employees, not just those in the Servicemen 1 classification who had received two 25% merit

raises, the contract language would have reflected that intent.

The Company bases this interpretation on the punctuation of Article IX, Section 2 of the

Agreement. It argues that the placement of a comma after the exception applying to the

classification Servicemen 1 evidences the parties’ intent to have two separate qualifying

conditions for an annual performance review. It identifies the conditions as (1) employees

reaching the Serviceman 1 classification and (2) all other employees reaching mid-point of the

pay range for their respective classification. It is emphasized that this interpretation is consistent

with how the language has been applied in the four other Western Region facilities. According to

the Company, the Union’s interpretation of the contractual language ignores the comma and is

therefore incorrect.

Even if the contractual language is deemed unclear, the Company contends that the

parties’ extended history regarding the application of Article IX, Section 2 requires the denial of

the grievance. Notably, four of the five Western Region facilities have largely limited

performance reviews to one time per year, without Union objection prior to this matter. The

Company asserts that local management at the Columbus facility simply made a mistake, which

was corrected after it was identified. Because the practice was in error and contrary to the plain

reading of the contractual language, it is not enforceable as a past practice. In asking the

grievance to be denied, the Company argues as follows in its post hearing brief:

These circumstances establish that the Union and the Company both agreed on
how Article IX, Section 2 should be interpreted — that is, all employees receive
one performance review each year, except only non-Servicemen 1 employees w'ho

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 I CLAJB
had not reached the midpoint of the pay rate range for their respective
classifications (e.g. those employees who had not yet received two 25% of the
range merit increases) receive two performance reviews each year. The union
accepted this interpretation of Article IX Section 2 for all other Western Region
facilities for approximately 15 years and objected only when the practice at
Columbus was corrected to be consistent with the other four facilities. Ohio
CAT’s previous mistake, isolated only to Columbus, does not change the fact that
the Company’s overall past practice was, and still is, generally accepted by the
Union. (Emphasis in original)

FINDINGS AND DISCUSSION

The facts in this matter are not in dispute, leaving it entirely as a contractual

interpretation matter. For many years, dating back to at least 2005, performance reviews and the

resulting merit raise increases have been administered differently within the Western Region

bargaining unit. At the Columbus facility, two performance reviews were conducted each year,

with the exception of Serviceman 1 employees who had already received two 25% range merit

increases only being entitled to one performance review per year. As a result, other than the

excepted Servicemen 1 employees, Columbus bargaining unit members received performance

reviews in July and February of each year. At the four other smaller facilities within the Western

Region, employees from all classifications received one annual performance review, except those

who had not received two 25% range merit increases. The practice applied at the Columbus

facility changed as of July of 2021, when the Company no longer provided those previously

eligible employees with the semi-annual performance review. Rather, the Company treated

Columbus employees the same as bargaining unit members in the four other Western Region

facilities. The issue to be determined is whether this change implemented at the Columbus

facility in July of 2021 was in violation of the Agreement.

Article III of the Agreement sets forth the Company’s management rights, which include

the right to evaluate job performance and determine merit raises. To that end, the Company

implemented a Pay For Performance Management Guidebook, outlining how performance

reviews are to be conducted and merit raises calculated. The ability to take these actions is

clearly within the Company's managerial rights. However, as stated in Article III, this right is

limited 'io the extent expressly abridged by a provision of this Agreement”. It is therefore

c
Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 I CLAJB
necessary to look to the Agreement in determining the parameters of the Company’s right to

change the performance review process.

Article IX of the Agreement, entitled Performance Review, sets forth such parameters.

Section 2 of the provision contains the contactual requirements for the frequency of performance

reviews, with the pertinent language stating as follows (Joint Ex. 1):

Performance reviews will occur every' six (6) months, except that those employees
who are classified as Serviceman 1, and who have received two (2) twenty-five
percent (25%) of the range merit increases will be evaluated annually.

The parties disagree in their interpretation of this language. Giving rise to this grievance,

the Union disputes the Company’s assertion that Article IX, Section 2 only requires one

performance review per year for all employees who have already received two 25% range merit

increases. The Company’s position is that the contractual language provides for two separate

conditions under which employees are limited to one performance review per year. Focusing on

the placement of a comma after "Serviceman 1 ”, the Company reads the first sentence of Article

IX, Section 2 as providing two criteria that trigger the annual review, i.e., (1) all employees

classified as a Serviceman 1; and (2) all other employees who have already received two 25%

pay range merit increases. Based upon this punctuation in the first sentence of Article IX, Section

2, the Company maintains that the change implemented in July of 2021 brought the Columbus

facility in line with the contractual language and what had been long applied at the four other

Western Region facilities.

A careful reading of the contractual language does not support the Company’s

interpretation. The first sentence of Article IX, Section 2 begins with the phrase "Performance

reviews will occur every six (6) months”. With the use of the word “will," the parties expressed a

general rule or a mandate. The remainder of the first sentence then sets forth the exception to that

mandate, those employees who are “classified as Serviceman 1, and who have received tw'o (2)

twenty-five percent (25%) of the range merit increases will be evaluated annually.” In analyzing

the structure of this sentence — the statement of the general rule followed by the word “except”

— it is concluded that the placement of a comma after “Serviceman 1” does not create two

separate exceptions to the general rule requiring a performance review every six months. With

Electronically Filed 08/22/2023 16:40 / I CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
the statement of the general rule followed by the word “except," the logical reading of the

sentence is that it sets forth only one criteria to meet the exception. That is, Servicemen 1

employees who have already received two 25% range merit increases are limited to one

performance review per year.

Had the parties intended two distinct criteria limiting employees to one performance

review per year, they would have chosen different language. After setting forth the general rule,

the criteria falling within the exception to that general rule would have been set forth separately

with the use of the conjunction “or” instead of “and” between “Serviceman 1” and the

requirement of two 25% range merit increases. The placement of a comma after “Serviceman 1”

does not change the chosen conjunction of “and” to “or”. With the structure of the sentence

setting forth the general rule followed by an exception and no use of the word “or” to indicate

otherwise, the second half of the first sentence of Article IX, Section is read as pertaining to the

Serviceman 1 classification.

Both parties cited past practice in support of their respective positions. In the presence of

ambiguous contractual language, a past practice that is unequivocal, clearly enunciated, and

readily ascertainable over a reasonable period of time as a fixed practice is binding on the parties

as part of the collective bargaining agreement. For its part, the Union argues that there is an

enforceable past practice at the Columbus facility of providing a performance review every six

months for all employees except those in the Serviceman 1 classification who had achieved two

25% range merit increases. The Company countered with an alternative enforceable practice,

citing to the longstanding practice at the four other Western Region facilities by which only one

performance review was provided to all employees who had achieved two 25% range merit

increases. It is clear that both parties are correct — the practice at the Columbus facility has been

to provide most employees with two performance reviews per year; while the practice at the

remaining four facilities has been to provide most employees with only an annual performance

review. With the different applications of the same contractual language within the same

bargaining unit, there is no unequivocal, clearly ascertainable practice that can be enforceable as

a part of the collective bargaining agreement.

g
Electronically Filed 08/22/2023 16:40 / / CV 23 984359 I Confirmation Nbr. 2944242 I CLAJB
In its essence, this matter arose from a poorly placed comma in an otherwise clear and

unambiguous contractional provision. However, in reading the first sentence of Article IX,

Section 2 of the Agreement as a whole, the parties’ intent is clear. The first sentence of this

provision states the general rule that performance reviews will occur every six months, followed

by an exception that is applicable to Serviceman 1 employees who have received two 25% range

merit increases. These employees constitute the exception to the general rule and only receive an

annual performance review. Beginning with the change implemented in July of 2021, the

Company violated the Agreement by applying the contractual exception to employees in all

classifications who had already achieved two 25% range merit increases.

Electronically Filed 08/22/2023 16:40 I I CV 23 984359 I Confirmation Nbr. 2944242 I CLAJB
AWARD

The grievance is sustained for the reasons set forth above. The
Company violated the Agreement in the scheduling of semi-annual
performance reviews effective July, 2021. The Company is ordered
to retroactively conduct performance reviews from July 2021 in
accordance with Article IX, Section 2 of the Agreement, and to
retroactively apply any wages increases resulting from those
performance reviews.

The undersigned retains jurisdiction should an issue arise in the
implementation of this Award.

Jane Desimone, Arbitrator
August 25, 2022

10
Electronically Filed 08/22/2023 16:40 / ICV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
FEDERAL MEDIATION AND CONCILIATION SERVICE

IN THE MATTER OF ARBITRATION ] PERFORMANCE REVIEWS
] CLARIFICATION OF AWARD
]
Between ]
]
]
INTERNATIONAL UNION 1
OF OPERATING ENGINEERS, LOCAL 18 ]
1
And ' ]
]
OHIO CAT WESTERN REGION ] FMCS CASE NO. 2210727-00694

On August 3, 2021, the Union filed a Grievance Form, alleging that the Company

violated the parties’ collective bargaining agreement in denying members a semi-annual review

and eligible wage increases. At issue was the language of Article IX, Section 2 of the Agreement,

which states in pertinent part as follows (Joint Ex. 2):

Performance reviews will occur every six (6) months, except that those
employees who are classified as Servicemen 1, and who have received
two (2) twenty-five percent (25%) of the range merit increases will be
evaluated annually...

Following a hearing convened on July 25, 2022, the grievance was sustained. In a

Decision dated August 25, 2022, the undersigned arbitrator awarded the following:

The grievance is sustained for the reasons set forth above. The Company
violated the Agreement in the scheduling of semi-annual performance
reviews effective July, 2021. The Company is ordered to retroactively
conduct performance reviews from July 2021 in accordance with Article
IX, Section 2 of the Agreement, and to retroactively apply any wages
[sic] increases resulting from those performance reviews.

The undersigned retains jurisdiction should an issue arise in the
implementation of this Award.

Thereafter, a dispute arose regarding the scope of the Award and its implementation, and

the arbitrator was contacted for a clarification. A hearing was convened on March 2, 2023, at

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 I Confirmation Nbr. 2944242 I CLAJB
which the parties presented their respective positions. The parties agreed that the Award was to

apply retroactively to August of 2021, requiring the Company to perform a series of retroactive

performance reviews and potential wage increases for all applicable bargaining unit members,

except those who were classified as Servicemen 1 and who had received two (2) twenty-five

percent (25%) of the range merit increases.

Rather than dispute this element of the Award, the parties requested clarification as to

who was entitled to the retroactive performance reviews as directed by the Award. The Union

argued that the Award applied to all bargaining unit members covered by the Agreement. The

Company argued that the Award only applied to bargaining unit members at the Columbus

facility.

In reviewing the parties’ respective arguments in conjunction with the Award dated

August 25, 2022, it is concluded that the Union’s interpretation is correct. The Agreement covers

all bargaining unit members at all five of the Company’s Western Region facilities - Columbus,

Cincinnati, Toledo, Troy and Richwood. This coverage includes the requirements of Article IX,

Section 2 of the Agreement. As such, the contractual performance review requirements

necessarily apply to all bargaining unit members at all five facilities. While the grievance was

filed after the Company changed its practice at the Columbus facility to perform only annual

performance reviews for employees in all classifications who had achieved two 25% merit range

increases, the same practice in violation of the Agreement was already occurring in the other

facilities in the Western Region. The Union cannot obtain a remedy for the violations that

occurred in previous years prior to the filing of the grievance, either for the employees at the

Columbus facility or at the four other Western Region facilities. However, with the grievance

sustained, the Award dated August 25, 2022 applies to all employees going forward from when

the grievance was filed.

Jane Desimone
April 24,2023

Electronically Filed 08/22/2023 16:40 / / CV 23 984359 I Confirmation Nbr. 2944242 I CLAJB
AGREEMENT

BETWEEN

OHIO CAT - WESTERN REGION

AND

INTERNATIONAL UNION OF OPERATING ENGINEERS
LOCAL UNION NOS. 18,18A, 18B AND 18C

FEBRUARY 1, 2018 THROUGH JANUARY 31, 2021

EXHIBIT C
Electronically Filed 08/22/2023 16:40 / / CV 23 984359 / Confirmation Nbr. 2944242 / CLAJB
ARTICLE TITLE

Case Info

Judge

SHANNON M GALLAGHER Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

August 22, 2023

Case Filing Date

August 22, 2023

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Summons: INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL vs. OHIO MACHINERY CO. D.B.A. OHIO CAT WESTERN REGION

Preview

Related Topics

Case Info

Parties