FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 97-07898

RETAIL, WHOLESALE & DEPARTMENT

STORE UNION LOCAL 150,
Union,

and

UNITED STATES TOBACCO

MANUFACTURING COMPANY, INC.,
Employer.
______________________________________/

OPINION OF THE ARBITRATOR

November 11, 1997

After a Hearing Held August 12, 1997

In the Corporate Offices at Nashville, Tennessee

For the Union: For the Employer:

Murl Householder Charles Hampton White, Esq.

International Vice President P.O. Box 190695
RWDSU, AFL-CIO Nashville, Tennessee 37219-0695
1124 N. Broadway
Knoxville, Tennessee 37917
 BACKGROUND

In January of 1994, U.S. Tobacco Company ("Company") upgraded the job of

oiler and miscellaneous ("oiler") to preventative maintenance utility technician and

miscellaneous ("PM tech"). The upgraded position required 5 years experience

working in industrial preventative maintenance. The increases in job responsibilities

and qualification requirements were accompanied by a substantial increase in pay.

UX 2, CX 1, CX 2. Prior to upgrading the oiler position, the Company conferred with

Local 150 of the Retail, Wholesale and Department Store Union, AFL-CIO

("Union"), which represents Company employees.

On September 4, 1996, the Company posted a notice of an opening for PM

tech. JX 4. Eight employees bid for the job, among them grievant, who was a

production machine operator.

The manager of human resources made an initial determination that only one

of the eight applicants had the requisite qualifications. Grievant was rejected on the

basis of his lack of experience. The lone qualified applicant, although junior to

grievant in seniority, was not senior among the applicants, nor was grievant himself

the most senior.

The lone qualified applicant was referred to the Company's maintenance

superintendent for a job interview. Satisfied that the applicant had at least 5 years

experience and was otherwise qualified, the maintenance superintendent awarded the

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job to him.

Grievant filed a grievance report with the Union, October 9, 1996. JX 2. In his

report, grievant stated only, "I was unfairly dealt with by being denied the PM tech

job." Grievant did not assert that he had the requisite 5 years experience. The

manager of human resources denied the grievance the day it was filed, stating, "The

grievant clearly does not have the required background necessary to be awarded the

job." JX 3.

DECISION

The Union invoked arbitration, and a hearing was held August 12, 1997, at

Company offices in Nashville, Tennessee. The parties briefed the issues, and the

record was closed September 17, 1997. After hearing, briefs, and thorough review of

all the evidence, the grievance must be denied.

DISCUSSION

This is a quid-pro-quo collective bargaining situation. In exchange for

increases in job responsibilities and qualification requirements, the Company agreed

to pay, and has in fact paid, increased wages. The Union, having accepted the

increased wages for years, cannot now complain about the corresponding increase in

qualification requirements. It is settled law that a party to a collective bargaining

agreement cannot accept the quid without delivering the quo.

Moreover, an arbitrator would be reluctant to uphold a grievance if doing so

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would give rise to yet another grievance. In this case, upholding the grievance almost

surely would give rise to another by the successful applicant for the PM tech job, who

is entirely innocent in this situation.

At the hearing, grievant took the witness stand. However, at no time during his

testimony did he testify that he had the 5 years experience required for the PM tech

job. Grievant testified only that he believed that he could do the job if given the

chance.

The manager of human resources and the maintenance superintendent judged

grievant to have no more than 1 1/2-2 years of relevant training and experience.

Although they conceded that the 5-year requirement is not inflexible, they considered

that grievant was not even close to fulfilling the requirement.

The Union relies upon Article 9-7, Article 9-10, and Section F of the

Appendix to the collective bargaining agreement. JX 1. Article 9-7 provides in

pertinent part:

The job will be awarded ... based on seniority and ability.

Article 9-10 provides:

If a posted job calls for any special skills, abilities or training, this will be
noted on the job posting. At least one of those signing the posting must have
the special skills, abilities or training before the job will be awarded.

Finally, Section F of the Appendix defines:

Special Skills - minimum abilities or experience needed to perform a given

job.

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 With respect to Article 9-10, the Union asserts on page 5 of its brief:

Nowhere in this portion of the contract does it state that special skills is
defined as five years experience. This is an arbitrary assignment by the
Company and was never agreed to by the Union.

The hearing testimony does not support this conclusion.

Both the manager of human resources and the maintenance superintendent

testified that the job upgrade from oiler to PM tech was discussed with the Union. No

Union official took the stand to deny that discussions took place or to assert that the

Union voiced timely objection. The job of PM tech has been filled previously without

objection from the Union. Thus, the Union at least tacitly agreed to the 1994 job

upgrade.

Even if there were no evidence that the upgrade was the subject of discussion

with the Union, Article 9-6, 9-7 and 9-10 and Section f of the Appendix, when read

together, could lead to the conclusion that the Company has the right to set the

minimum level of experience needed to perform a particular job. Absent evidence of

purely arbitrary job qualification standards (and there is no such evidence in this

case), the Company's setting of qualifications well could be sustained on the basis of

contractual language alone. There is nothing remotely arbitrary about requiring 5

years experience before allowing an employee to perform preventative maintenance

on manufacturing machinery.

The Union suggests that grievant be awarded a PM tech job on a trial basis,

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under Article 9-8. However, that provision applies to the case of an employee who

initially appears to be qualified but turns out not to be in practice. Grievant did not

even appear to meet the PM tech requirements.

None of this is to say that grievant could not do the PM tech job if given the

opportunity. It is just to say that an arbitrator's task is not to tell the Company how to

run its business. It may be that the parties could negotiate a program under which

employees with a long history of Company service are given special consideration

for advancement. However, the proper arena for such consideration is collective

bargaining, not arbitration.

For all the foregoing reasons, the grievance is DENIED.

November 11, 1997 ________________________

E. Frank Cornelius, Arbitrator

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