| IN THE MATTER OF: | | | CASE NO. 27 |
| INTERNATIONAL | | | |
| BROTHERHOOD OF | | | |
| ELECTRICAL WORKERS, | | | |
| LOCAL UNION NO. 1525, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| and | | | FINDINGS AND ORDER |
| | | ||
| THE CITY OF BEATRICE, | | | |
| NEBRASKA a Municipal | | | |
| Corporation, and BOARD | | | |
| OF PUBLIC WORKS, CITY | | | |
| OF BEATRICE, NEBRASKA, | | | |
| | | ||
| Respondents. | | |
BAYLOR, J.:
Trial of this action having been had August 26, 1970, briefs having been submitted, and the bill of exceptions having been reviewed by the court, now therefore the court makes findings as follows:
1. Jurisdiction . The evidence beyond possibility of dispute establishes jurisdiction of the plaintiff and the defendant. Kramer Employees Committee v. Loup River Public Power District , Case No. 16, paragraphs 1 and 2 of opinion 12-16-63. Between the parties is a controversy concerning the meaning and application of provisions relating to vacation benefits in a contract executed August 16, 1969, by the parties. "This court has subject matter jurisdiction to construe and enforce labor contracts in suits between parties properly before the court." Safeway Cabs Inc. v. Drivers Union , Case No. 18, pp 8-10 of Opinion 3-6-64. Despite 48-817's prohibition of retroactive orders, the court may order payments or withholding of benefits based on past employment so long as a right thereto has not accrued. Kramer Employees Committee v. Loup River Public Power District , Case No. 16, paragraph 4 of opinion 2-25-64. Furthermore an order settling a dispute respecting conflicting interpretation of rights under a contract as is prayed for here is not retroactive in any respect though an order establishing new rights under the authority of 48-818 R.S. Neb. might be. cf Kramer v. Loup, supra.
It must be clearly understood that there are in this case neither pleadings nor evidence from which we can exercise our jurisdiction under 48-818 R.S. Neb. to establish vacation entitlement or any other condition of employment comparable to those prevailing for similar types of employment by other employers.
2. Industrial Dispute . From January 1, 1966, to August 16, 1969, the conditions of employment provided:
"Employees will receive one week vacation per year for the first three years of service."
On August 16, 1969, the parties signed a document entitled "Memorandum of Understanding"-which under the evidence and contentions here is a binding and enforceable legal contract, there being no contention or evidence that appropriations or other extra contractual governmental rights or duties are involved in this limited dispute-which provided:
"An employee who has been regularly engaged for a period of twelve (12) months on Anniversary date of their (sic) employment shall be entitled to receive a vacation with pay equivalent to two (2) forty (40) hour work weeks."
Widick, whose employment commenced May 26, 1969, was given during summer of 1970 for benefit which was earned during calendar year '69, seven days vacation leave with pay; Johnson, whose employment commenced May 26, 1969, was given during summer of 1970 for benefit which was earned during the calendar year '69, five days vacation leave with pay. The plaintiff does not here contest the defendant's right to designate those specific calendar days, month, and year during which an employee may be absent from work on vacation leave. Thus in following the reasoning and conclusion hereinafter set forth, it must be remembered that we are deciding not when Johnson and Widick should take their vacation leave or pay in lieu thereof, but only the extent of that eave or pay as the result of their active service in the employ of the defendant during the calendar year 1969. The Union does contend, however, that during calendar year 1970 Johnson should receive an additional 5 days and Widick an additional 3 days vacation leave with pay. The defendant employer, on the other hand, contends that vacation benefit entitlement accrues and becomes fixed each day of work, so that on August 16, 1969, (Jan. 1 to Aug. 16 being 230 days and Aug. 16 to Dec. 31 being 135 days) Widick during 1969 had acquired 230/365 of the one-week benefit under the former agreement and thereafter during 1969 acquired 135/365 of the two-week benefit under the new contract, which added and rounded to full days comes to the seven days granted. The leave granted to Johnson in 1970 for entitlement earned from starting day May 26 through December 31, 1969, was similarly computed.
In support of its interpretation of the contract the employer asks us to consider all the contract provisions concerning vacations, which provisions with emphasis supplies are:
Article V. General Provisions. Section 2. Vacations- All regular employees of the Board covered by this agreement shall be entitled to vacations with pay in accordance with the following:
An employee on vacation leave shall have his accrued leave deducted one day less for each authorized holiday falling within the period of leave.
Vacation Pay. Vacations will, so far as possible, be granted at a time desired by the employee, but the final right to allotment is reserved by the "Board" to insure continuity of service.
An employee who has been regularly engaged for a period of twelve (12) months on Anniversary date of their employment shall be entitled to receive a vacation with pay equivalent to two (2) forty (40) hour work weeks. An employee who has been regularly engaged for a period of ten (10) years on Anniversary date shall be entitled to receive a vacation with pay equivalent to three (3) forty (40) hour weeks. An employee who has been regularly engaged for a period of twenty (20) years on Anniversary date shall be entitled to receive a vacation with pay equivalent to four (4) forty (40) hour weeks.
If a holiday falls during a vacation period upon a regular scheduled work day for the employee, such employee shall be entitled to one additional day's vacation.
In case of resignation, termination of employment, lay-off on account of lack of work, an employee will be granted his vacation pay if he has otherwise fulfilled the preceding requirements for a vacation. Any employee who gives less than adequate notice before resigning shall forfeit his accrued vacation leave. Adequate notice shall be construed to mean two weeks.
Whenever separation from the "Board" occurs before the end of the first six (6) months of an employee's service, he forfeits his vacation leave.
We can discover no alternatives to the following two theories of construction of the contract:
a. The employer's theory is that vacation benefit in form of either pay or leave accrues each day of employment;
b. The employees' theory advanced by their union is that vacation benefit accrues on Anniversary date of 12 months active service, and therefore it necessarily must be that there is no entitlement to vacation benefit in any form until the Anniversary is reached. We say "necessarily must be" because there is nothing in the contract to indicate that benefits "accrue" daily for the purpose of pay upon resignation but only annually on Anniversary for the purpose of leave to be granted.
The employer's theory is inconsistent with the language of the fourth paragraph of Section 2 last above quoted; the union's theory is inconsistent with the language of the sixth and seventh paragraphs of Section 2 last above quoted. Under the employer's theory, contrary to the plain language of the fourth paragraph,Widick did not become entitled to two weeks vacation on the August 1969 anniversary date of his employment nor Johnson on the May 1970 anniversary date of his employment. On the other hand, under the union's theory, contrary to the language of the sixth paragraph Widick would not be entitled to any vacation pay as a result of his active service in 1969 if he had been laid off prior to his August 1969 Anniversary date. We conclude that the various provisions of Section 2 Article V of the Contract are inconsistent. In reaching that conclusion we note, though they are not directly applicable to the issues of this case, the clearly inconsistent provisions of the second and fifth paragraphs of Section 2, Article V.
Nor do the rest of the provisions of the contract help us in discovering the parties' intent as to computation of vacation pay:
"Article 1. Section 2. This agreement shall remain in full force and be binding upon the board and its employees from and after the 16th day of August, 1969.
"Article IV. Section 1(b) Board seniority is herein defined as the total length of active service in the Board of Public Works since the first day of employment with the Board.
"Section 2. Occupational Groups...(3)...No discipline or suspension shall be administered to an employee, covered by this agreement, which shall permanently impair his previously (sic) accrued seniority rights.
"Section 4. Active Service-Active Service, for the purpose of this agreement is herein defined as the actual amount of time for which a regular employee receives compensation for full-time employment from the board, to which shall be added: (1)...(two weeks military leave). (2)...(sickness or accident convalescence). (3)...(Special leave). When an employee is granted an authorized leave of absence not covered herein, he shall retain active service already accrued but no further active service shall accrue during such absence.
"Section 5. Employee-For the purpose of this agreement there shall be three types of employees, as follows: (a) Regular Employees-a regular employee shall be one who is employed for the routine conduct of the Board's business, who has passed through the probationary period, and who has been accepted by the Board as a regular employee.
"(b) Probationary Employee-A probationary employee is one who is hired with a view of filling a regular position and one who must serve for a period of six months, during which his qualifications for the work can be determined, before being advanced to the status of a regular employee.
"(c) Temporary Employees-A temporary employee is an individual employed for occasional work...not to exceed four months, and whom the Board has no intention of accepting as a regular employee.
"Section 6. Status of Probationary Employees-all probationary employees hired to fill any of the jobs covered by this agreement shall be considered on probation for the first six months of their employment. During this probationary period, none of the provisions of this agreement shall apply to such persons except that hours of work and hourly rates of pay shall be based on the rates provided herein. If accepted as a regular employee, job seniority shall begin at the end of the probationary period, and Board seniority after acceptance as a regular employee, shall begin at the date of original employment.
"Article V. Section 3. Sick Leave. A. You will be given credit for one day of sick leave for each month you work. You may accrue up to sixty (60) days of sick leave which will give you twelve (12) weeks of protection in the event of a serious illness. No payment will be made for accrued sick leave upon retirement or termination for any reason. No payment will be made to the estate of a deceased employee for accrued sick leave.
The defendant argues that the plaintiff's theory is contrary to Article 1 Section 2 quoted above, "This agreement shall...be binding...from and after the 16th day of August 1969," but the question remains, "What is the agreement." It does appear that the parties expressed themselves pretty clearly with respect to the daily or monthly accrual of rights respecting seniority, active service, and sick pay, but it further appears both from the language of Article V Section 2 and from the testimony as to what was said during negotiations that they failed to formulate clear and consistent intentions with respect to vacation benefits.
We find and conclude:
1. That administrative procedures whereby the defendant made the calculations on or as of December 31, 1969, as to vacation benefit entitlement maturing or becoming fixed during calendar 1969 and whereby the defendant allotted the vacation leave so fixed to calendar 1970 for employees continuing in active service under the evidence here is not contrary to the contract.
2. That nevertheless an employee who, after August 16, 1969, but prior to his anniversary date, resigned with two-week notice or who was laid off for lack of work has not 'fulfilled the requirements for a vacation" for that portion after August 16, 1969, of the calendar year of such resignation or lay-off and accordingly is entitled to no vacation pay by reason of active service during such portion of the latter calendar year.
3. That furthermore an employee whose 1969 anniversary date was after August 16, 1969, and who was still in active service on such anniversary date became entitled on such date to vacation pay, or if he continued in active service then to vacation leave, in accordance with the fourth paragraph of Section 2, Article V of the contract.
4. That a regular employee who either started work or reached his anniversary date between January 1, 1969, and August 16, 1969, became entitled to vacation benefits earned during 1969, in accordance with only the conditions of employment which were in effect prior to August 16, 1969.
5. That for vacation leave taken in 1970 but earned in calendar 1969 or resulting from twelve months active service to a date in 1969:
a. Johnson is entitled to the 5 days he has received;
b. Widick is entitled to a total of 10 days, i.e. the 7 he already has received plus an additional 3 days.
6. And that Johnson on May 26, 1970, and Widick on August 26, 1970, if each on such respective date was still in the active service of the defendant, became entitled to another "vacation with pay equivalent to two (2) forty (40) hour work weeks" for which pay is to be given in accordance with the sixth paragraph of Section 2 of Article V of the contract or leave granted presumably in 1971-in accordance with the administrative procedure described by finding numbered 1 above or any modification of such procedure which the defendant may establish in accordance with the rights reserved to it under the contract.
We note that for vacation benefits earned during 1970 the contract itself provides procedures for the parties' reaching agreement to make the provisions relating to vacation benefits more equitable and consistent, and that 48-818 R.S. Supp. 1969 provides a remedy if the parties cannot agree.
NOW, THEREFORE, IT IS ORDERED that during calendar year 1970 for active service for a period of twelve months to August 26, 1969, Charles R. Widick be granted an additional three days of vacation benefit, either leave with pay or vacation pay in addition to wages; and that the prayer of the petition with respect to Galen Johnson's vacation be granted in accordance with paragraphs numbered 5 and 6 of the foregoing findings and conclusions.
BAYLOR, J.:
This case having come on January 20, 1971, pursuant to notice of which the evidence was duly entered in the record of the proceedings held on the latter date, and the Court having received no appearance or other communication responsive either to said notice or to the order entered October 30, 1970, the case was taken under advisement by the Full Court. Upon consideration of the entire record, including but not limited to that made October 30, 1970, it is ordered:
1. That the motion filed by the defendants on or about October 23, 1970, and entitled, "Motion for a New Trial and Application for Modification of Court's Order," be and it hereby is overruled.
2. That for only the purpose of clarification, paragraph numbered 5 on page 9 of the Court's Findings and Order entered October 15, 1970, shall read in full as follows:
That for vacation leave taken in 1970 but earned in calendar year 1969 or resulting from twelve months active service to a date in 1969:
a. Johnson is entitled to the 5 days he has received; and
b. Widick is entitled to a total of 10 days, i.e., the 7 he already has received plus an additional 3 days.
and the reference on page 10 of said Findings and Order to paragraph numbered 5 shall be deemed to refer to said paragraph numbered 5 as clarified herein.
3. That since the Presiding Judge has mailed February 15, 1971, a copy of this Order to each of the counsel and to each of the other judges of this Court, the clerk is not required to give further notice of the entry of this Order.
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