| TRANSPORT WORKERS OF | | | CASE NO. 220 |
| AMERICA, LOCAL 223, AFL-CIO, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| TRANSIT AUTHORITY OF THE | | | |
| CITY OF OMAHA, d/b/a | | | |
| METRO AREA TRANSIT, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Robert E. O'Connor, Jr.
For the Respondent: Soren S. Jensen
Before: Wall, Kratz, Green, McGinley and Gradwohl (EN BANC):
PER CURIAM:
This matter comes before the court for a determination of the meaning of Articles XIII and XIV of the 1975-77 collective bargaining agreement and virtually identical provisions in Articles XIX and XX of the 1973-75 agreement between the parties. These Articles provide in pertinent part: 1975-77 Contract:
Section 1. The Authority shall provide a short term disability benefit for all participating employees.
Section 2. The benefits will be $10.00 per day beginning with the fourth (4) day of illness, with the first (1) day if injured in an accident or hospitalized for any reason. Maximum benefits will be $1,210.00 drawn in any 181 day period. An employee who exhausts this benefit must work ninety (90) days to have full benefits restored. A doctor's statement of illness, injury, hospitalization and diagnosis is required for payment of benefits to commence. Effective July 1, 1976, Benefits shall increase "to $12.00 per day. Maximum benefits will be $1,452.00, drawn in any 181 day period. All requirements as stated above shall remain in effect.
Section 1. The Authority provides hospitalization and medical benefits through a bonafide insurance carrier covering employees and their families under a group plan, at no cost to the employee.
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Section 3. Group insurance benefits will always remain at, or exceed July 1, 1973 levels."
Section 1. The Authority shall provide a short term disability benefit for all participating employees.
Section 2. The benefits will be $10.00 per day beginning with the fourth (4) day of illness, with the first (1) day if injured in an accident or hospitalized for any reason. Maximum benefits will be $1,210.00 drawn in any 181 day period. An employee who exhausts this benefit must work ninety (90) days to have full benefits restored. A doctor's statement of illness, injury, hospitalization and diagnosis is required for payment of benefits to commence.
Section 1. The Authority provides medical insurance with a bona fide insurance carrier covering employees and their families under a group plan.
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Section 7. Group insurance benefits will always remain at, or exceed July 1, 1973 levels."
The parties stipulated that the only issue for determination by the Court is whether employees who are receiving workmen's compensation benefits are also entitled to received short term disability benefits under Article XIII and XIX of the respective contracts.
Respondent alleges that the controversy is not ripe for determination because grievance procedures were not exhausted. Neither party sought to pursue or insist on the grievance procedure before this action was filed. Where a basic contract interpretation is involved in a number of claims and we can settle all of them by adjudicating the contract question, an action here is proper. The requirement of exhaustion of contractually provided dispute mechanisms before resort to this tribunal is a policy question and not jurisdictional, where an industrial dispute exists. While in the future, for the protection of our own docket, we will generally require exhaustion, we announce the rule here, so that it may apply prospectively, rather than retrospectively. We find that we have jurisdiction of the parties and of the subject matter.
From 1901 to 1973, the employees of respondent's private sector predecessor established and ran an unincorporated beneficial association known as the Omaha and Council Bluffs Street Railways Relief Association. Originally, this association was funded solely by employee contributions, but later in its operations, by bargaining progress, the association came to be funded by both employee dues and contributions from the company. It was always managed by employee trustees. The evidence establishes that the Relief Association always paid claims whether job-related (and, therefore, covered by Workers Compensation) or not.
When respondent took over the operations of its predecessor in Omaha and Council Bluffs, there was approximately $20,000.00 in the Relief Association account, and upon agreement that respondent would take control of the funding and management of the Relief Association will no loss of benefits, the funds in the Relief Association's treasury were turned over to the respondent, MAT. The agreement between MAT and its predecessor was incorporated in Article XIX of the 1973 contract between MAT and petitioner. The Relief Association was discontinued January 7, 1974. Shortly thereafter, a disputed claim on short term disability arose. It was disposed of by letter of February 6, 1974, from MAT to petitioner in a letter reading as follows:
"According to our conversation, it is understood that Mutual of Omaha Short Term Disability Insurance will not cover employees injured in accidents covered by Workmen's Compensation. In the event that this does happen, Metro Area Transit will pay the usual amount as covered by the old Relief Association which was discontinued on January 7, 1974." As set out in full above, the 1975-1977 Agreement contained the same mandatory language in Section 1 that 'the Authority shall provide a short term disability benefit for all participating employees.'
In the 1977 contract, which is still in litigation (our Case No. 225), the respondent moved the short term disability benefits to the "Insurance" section of its final offer, and labeled it "STD." Respondent asks us to notice judicially our files in Case No. 225 to the effect that this item is not an item in dispute in the 1977 litigation. We accede to the request, but do not see that the additional information changes the results. The petitioner is free to pursue the 1977 contract negotiations under its understanding of the old contracts and past practice, and to apply for relief from the stipulation should this case be determined adversely to them.
Respondent's principal defense is that its insurance policies do not cover the liability incurred under the contract terms if those terms are read as urged by petitioner. Respondent's letter of February 2, 1974, recognized that fact. The contract specifically provided for respondent to pay the short term disability benefits, while requiring other benefits to be funded by insurance. The fact that respondent did not secure coverage to the full extent of its obligations under the contract does not change the provisions of the contract.
The provisions of the contract are clear and unambiguous and do not require interpretation. The contract requires payment for short term disability for either work-related or non-work-related accidents from the first day. There is no exclusion for Worker's Compensation covered accidents.
ORDERED that an accounting be had between the parties as to the claims payable under the determination herein made. Since such sums were and are readily ascertainable, the award in each case shall include interest at 8% per annum from the several dates each claim was payable. If the parties are unable to agree as to the amount due for any particular claim, an accounting shall be had initially before the hearing examiner.
IT IS FURTHER ORDERED that this Order, being only in the nature of instructions to the parties, shall not be considered a final order of the Court.
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