Submitted April 16, 2015.
[Copyrighted Material Omitted]
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For SBC Advanced Solutions, Inc., Plaintiff - Appellant: Amie E. Needham, Littler & Mendelson, Saint Louis, MO.
For Communications Workers of America, District 6, Defendant - Appellee: Christopher N. Grant, Loretta Haggard, Schuchat & Cook, Saint Louis, MO; Matt Holder, David Van Os, David Van OS & Associates, P.C., Austin, TX.
Before BYE and SMITH, Circuit Judges, and SCHILTZ, District Judge.
SMITH, Circuit Judge.
SBC Advanced Solutions, Inc. (" Company" ) appeals the district court's grant of summary judgment affirming an arbitration award in favor of the labor union Communications Workers of America, District 6 (" Union" ). The two parties arbitrated a dispute in which the Union requested a pay differential to be awarded to certain of the Company's employees who had performed job functions of higher-paid employees without being compensated accordingly. The Company contends that the arbitrator erred ruling in favor of the Union primarily by failing to follow precedent established in previous arbitrations between the parties regarding the same collective bargaining agreement (CBA). We affirm.
In the late 1990s, SBC Communications, Inc. (" SBC" ) created the Company as a subsidiary to facilitate entry into the high-speed internet market. The Union represented both the Company's and SBC's employees. Additionally, the Company's relationship with its union employees was governed by the same CBA in effect between SBC and the Union. Among other things, the CBA required that there be tiered job classifications with specific work functions. SBC and the Company occasionally renegotiated the CBA with the Union, which included the opportunity to negotiate the compensation for each job classification. Under the CBA, the parties agreed to arbitrate disputes that could not be handled through a formal grievance process and that an arbitrator's disposition would be " final, and the parties agree[d] to be bound and to abide by such decision."
In 1999, the Company opened a call center in Earth City, Missouri, and staffed it with employees who fit under the required job classifications. Among these job classifications were customer service representatives (CSRs) and service representatives (SRs). According to their specific work functions, a CSR " [p]rimarily receives, screens, tests, analyzes, and dispatches trouble reports; explains and suggests various services and/or products to customers; [and] performs other generally related functions." SRs, on the other hand, " [h]andle the business transactions in connection with customers' accounts, including telephone and correspondence contacts and collection and order work, etc."
In October 2008, the Company chose twenty CSRs for special training to work with a new computer system called Portal. The CSRs were trained to use Portal by
an SR, used SR training materials, and then were subsequently moved to a new work location where they worked alongside SRs and took calls out of the same queue. According to the testimony of the CSRs, this new work was different from the work that they had performed prior to October 2008. Their prior worked focused primarily on calls regarding trouble tickets, such as troubleshooting customer problems with existing services. After their Portal training, however, they primarily worked on order-related duties, such as assisting customers order new services.
On November 13, 2008, the Union filed a grievance alleging that the Company violated Article XV, § 7.a. of the CBA, which states the following:
A qualified employee . . . who is temporarily scheduled or assigned and does work in a position with a higher established maximum rate of pay throughout a period of two (2) or more full tours in a work week, except for the purposes of training, shall receive for each full tour worked in such position a Classification Differential equal to one-fifth (1/5) of the amount of the weekly wage progression increase to which the employee would at the time be entitled if the employee were actually changed to the higher applicable classification at the employee's regular location.
Thus, as the Union contends, the Portal-trained CSRs were performing the job functions of the higher-paid SRs without receiving a pay differential for this higher-paid work. SBC and the Union had previously arbitrated disputes regarding the same CBA language and the same issue of employees seeking pay differentials for performing the job functions of higher-paid job classifications. As had been in previous arbitrations, the Union bore the burden of showing a § 7 violation by proving that the grieving employees (1) were qualified employees, (2) performed work of a higher classification, (3) were temporarily scheduled or assigned to perform this work, and (4) performed this work for a period of two tours or more each week for which they seek a pay differential. See U-Verse Facilities Specialists--Temporary Work in a Higher Position, AAA Case No. 58 300 00025 11 (2012).
Arbitrator William McKee, Ph.D., arbitrated the dispute. With respect to the first element of a § 7 violation, Arbitrator McKee rejected the Company's assertion that the term " qualified" should be interpreted as " test qualified." During the dispute, the Company argued that in order for an employee to be considered " qualified," the employee had to pass the requisite tests to be eligible for promotion to the higher job classification. Instead, Arbitrator McKee found that an employee could be considered " qualified" " if there is evidence that management has made a cognitive selection of certain employees who are capable of performing duties of a higher job classification." In doing so, Arbitrator McKee relied upon a previous arbitration award that he had decided, In re Senior Report Clerks, AAA Case No. 70 300 00505 06 (2008), and the U-Verse arbitration. Additionally, Arbitrator McKee distinguished another arbitration that he had decided, Thomas White, AAA Case No. 70 300 00788 07 (2008), which came to a somewhat different interpretation based on factual and evidentiary distinctions. Arbitrator McKee also considered and rejected the Company's evidence of the parties' intent in the form of a rough transcript from the 1983 negotiation of the CBA. The transcript reveals that a Union representative asked " [i]n section 6a what does 'qualified' mean[?]"  A SBC representative
replied that " [t]here are certain job requirements that qualify an employee for the job. Example, if have typing for stenographer and can't type, not qualified." Another company representative added that it " [m]eans test qualified. Does not change test qualifications for job. If have group of operators and qualified, would be pressed to go to senior." After a few lines of discussing the corresponding CBA provision regarding seniority, however, the transcript states " Union Rejects!" After considering this evidence, Arbitrator McKee stated that " clearly the Union did not agree to change the language of the CBA to reflect [the Company's] ...