BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MODERN BUILDING MATERIALS, INC.
TEAMSTERS UNION LOCAL NO. 43
Pursuant to the provisions of the collective bargaining agreement between the parties,
Teamsters Union Local No. 43 (hereinafter referred to as the Union) and Modern Building
Inc. (hereinafter referred to as the Company) requested that the Wisconsin Employment
Commission designate Daniel Nielsen as arbitrator of a dispute over the assignment of
overtime on June 1, 1997. A hearing was held on October 28, 1997, in Kenosha,
Wisconsin, at which
time the parties were afforded full opportunity to present such testimony, exhibits, other
arguments as were relevant. The parties submitted post-hearing briefs, the last of which was
by the undersigned on December 30, 1997, whereupon the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties agreed that the following issue should be determined herein:
Did the Company violate the collective
bargaining agreement by working Ruben Castenuela,
Jr. on June 1, 1997? If so, what is the appropriate remedy?
Article 3. Management Rights
Employes covered by this agreement shall
be governed by all company rules and regulations
issued by proper authorities of the company which are not in conflict with the terms and
of this agreement which have been made available to the affected employes prior to
It is recognized by the contracting parties
that the management of the business and direction of
the working forces, including but not intended as an exclusive list of management
right to hire, promote, lay off, discharge, suspend, discipline and transfer employes, make or
reasonable rules and regulations for employe conduct and determine the methods of
and the quality of work, is vested in the company, except as the same has been specifically
the terms of this agreement, and provided that this Article does not impair the right of the
Article 30 and 31 (Grievance and Arbitration Procedure).
. . .
Article 12. Seniority
For purposes of this Article, "Seniority" of
an employe shall be defined as the employe's
continuous service with the company from the first day worked until termination.
The company and the union agree that
where qualification and ability to perform work are equal
overall, seniority shall prevail. . . .
. . .
Whenever possible, seniority shall prevail for Saturday, Sunday
and holiday work. . . .
. . .
In the absence of the lead person or machine operator who does
not work on a weekend, the
employer may choose a replacement. This is only for other than seasonal layoffs. . . .
. . .
The Company manufactures precast concrete products in Kenosha, Wisconsin. The
is the exclusive bargaining representative for the Company's non-probationary employes,
supervisors, guards and office clericals. Among the Company's products are flattops, the
portions of manholes onto which the cover is fitted. Flattops are produced in both of the
plants at Kenosha. At the newer plant, a Virtivibe hopper is in use, and a computer operated
mixer was installed in the winter of 1996-97. Some employes, including Norman Mieloszyk,
trained in the operation of the Turmac mixer when it was installed. Mieloszyk never worked
Turmac after it became operational, though he had operated all of the other flattop machines
plant. After the Turmac was placed in operation, modifications were made to it, including
in the hoist, the braking system, the moisture control sensor, and the controller contactor for
braking system. Faulty e-prom chips and valves were also replaced.
Ruben Castenuela, Jr. was one of the employes normally assigned to operate the
mixer. On Saturday, May 31, 1997, Castenuela worked overtime producing flattops. He
problems with the Turmac mixer, including difficulty maintaining the proper mix of water
These problems prevented him from meeting the production quota for Monday morning. As
Company President Mike O'Connor asked Castenuela to work overtime on Sunday to fill the
for Monday. O'Connor did not seek any other employe for the work, because the operator
be working alone, without maintenance employes or supervisors available to deal with
O'Connor reasoned that Castenuela, as the normal operator for the mixer, would be best able
The instant grievance was filed protesting the Company's failure to offer the Sunday
other employes. 1/ Norman Mieloszyk was identified by the Union as the employe who was
to work in Castenuela's place. The grievance was not resolved in the lower steps of the
procedure and was referred to arbitration. A hearing was held on October 28, 1997, at
in addition to the facts recited above, the following testimony was taken.
1/ Other employes grieved the assignment of a
junior employe to work on June 1st as the laborer assisting
Castenuela. Those grievances were resolved at the arbitration hearing.
Norman Mieloszyk testified that he is a Quality Control Inspector and a steward, and
worked in every job in the bargaining unit. He has often made flattops, although not with
mixer. He was trained on the Turmac mixer when it was installed, and to his knowledge
no difference in the operation of the mixer from the time of his training through June 1st.
had never worked on the Vertivibe hopper, he had watched others operate it and understood
workings. Mieloszyk conceded that he was not aware of the likely problems with the
but expressed the opinion that maintenance employes should be on hand if it is in operation.
Mieloszyk stated that he had from time to time been asked to help arrange weekend
and that in every case the senior employe was given preference, whether or not he normally
the available machine. Mieloszyk opined that skills and ability do not enter into the decision
overtime, and that as a practical matter seniority controls.
Daniel Dorr testified that he had twice filed a grievance over the assignment of
junior employes, and in both cases his grievance was upheld. Dorr said that his
understanding of the
overtime system was that overtime was assigned by seniority, except that employes who
worked on a machine were entitled to work any overtime on their machine.
Sam Fontilea testified that he was the manager of the new plant at the time of this
He expressed the opinion that the changes to the Turmac mixer after it was placed in service
substantially changed the basic operation of the machine and would have made Mieloszyk's
obsolete. To his knowledge, the only persons qualified to operate the Turmac mixer on the
aside from himself, are Ruben Castenuela, Sr., Ruben Castenuela, Jr., and Dennis Strasser.
Dennis Strasser testified that he is a Machine Operator in the bargaining unit, and is
familiar with the operation of the Turmac mixer, which is a key machine in production.
stated that even though the mixer is computer operated, the computer makes frequent
the operator must carefully monitor the operation to catch and correct these errors. The
must also be able to run the mixer manually in case problems develop with the computer.
the mixer properly is very important to its efficient operation, and in his experience having
who are not familiar with the Turmac attempt to clean it almost invariably leads to problems.
Ruben Castenuela, Jr.
Ruben Castenuela, Jr. testified that he had worked on the Turmac for six months. In
1997, he and another employe named Gino were the only employes who normally worked on
Turmac and knew how to both run it and clean it.
On Saturday, May 31st, he experienced problems with the water-cement mix and was
to make the production goals. Late that afternoon, Mike O'Connor asked him to work
next day to complete the production for Monday morning.
Mike O'Connor testified that he is the President and half-owner of Modern Building
At midday on Saturday, May 31st, he realized that they would be unable to fill Monday
orders unless there was additional production on Sunday. Since the old plant was already
set up for
production on Monday morning and would require a full crew to operate, he decided to do
Sunday production in the new plant, using the Turmac mixer and Vertivibe. He tried to find
volunteers among the maintenance employes for the Sunday overtime, but no one was
O'Connor did not want to have an inexperienced operator work on the Turmac alone on
without supervision and without backup from maintenance employes, so decided that he
Castenuela and, if he was not willing to work, to cancel the production and disappoint his
Castenuela agreed to work the Sunday hours. O'Connor testified that his policy was to offer
to the senior qualified employe, except that employes are always given the right to work
their own machines, without regard to seniority.
Additional facts, as necessary, will be set forth below.
THE POSITIONS OF THE
The Position of the Union
The Union takes the position that Norman Mieloszyk was entitled to the overtime
June 1st, and that the Company violated the contract by failing to assign it to him. The
requires a general equality of qualifications between employes before seniority comes into
relative ability clause in the contract does not require exact equality, and arbitrators have
the Company must prove that a junior employe must be head and shoulders above a senior
before seniority may be disregarded. Such proof is lacking in this case. The Union notes
Company has generally awarded overtime strictly by seniority in the past, and asserts that its
from this practice in this case is a clear contract violation.
The record shows that Mieloszyk is more senior than Castenuela, and has worked
in the plant. He has often produced flattops, and is thoroughly familiar with the Virtivibe
As for the Turmac mixer, Mieloszyk was trained on this machine when it was installed.
parts have been replaced or modified since his training, the overall operation of the machine
changed, and these modifications have no bearing on his ability to operate the mixer.
Castenuela has more actual experience in running the mixer, the Union asserts that greater
is not the same as greater ability.
The Union also disputes the Company's claim that it had to use Castenuela because
would be no maintenance employes or supervisors available on Sunday, and he would be
to correct problems. Certainly the operator is not expected to make major repairs, and the
unilateral decision not to require maintenance employes to report on Sunday cannot be used
the seniority provisions of the contract. Moreover there is simply no reason to believe that
unusual problems would have arisen on June 1st that could only be handled by Castenuela.
primary possible problem cited by the Company -- adjusting the mix of water and cement --
standard problem with any mixer, and is not unique to the Turmac.
Even if the arbitrator were to consider Castenuela's greater familiarity with the
as being relevant to ability, he must also weigh the fact that Castenuela was afforded greater
opportunities than Mieloszyk. The Company cannot use Mieloszyk's lack of updated training
Turmac mixer against him, when it was the Company itself that intentionally failed to train
For all of these reasons, the Union asks that the grievance be granted, and that
The Position of the Company
The Company takes the position that the grievance is without merit and should be
The assignment of a junior employe is entirely consistent with the collective bargaining
While the contract recognizes seniority, the precondition to seniority prevailing is that
qualifications and abilities be "equal overall." The Employer grants that it has settled
work assignments in the past, but argues that these cases were examples of senior employes
equal abilities being unintentionally by-passed. Thus the grievance settlement agreements do
stand for any proposition other than that the Company sometimes makes mistakes.
The Company stresses that its determination of qualifications is entitled to deference,
the arbitrator should not substitute his judgment for O'Connor's unless it can be shown that
was arbitrary, or made his determination in bad faith. There is no evidence of this. Instead,
record demonstrates that O'Connor carefully considered the production needs, the equipment
involved and the need to have someone who could work without backup, and determined
that, in the
absence of volunteers from the maintenance classification, Castenuela was the best qualified
The other possible choice -- Norman Mieloszyk -- was qualified to operate the flattop and
hopper. However, he was not current in the operation of the Turmac mixer. There had
changes to the mixer since Mieloszyk was trained, and given that time was of the essence it
practical to have him retrained on the machine. Thus he was not only not "equal overall" to
Castenuela, he was not qualified at all.
For all of the foregoing reasons, the Company asks that the grievance be denied.
The collective bargaining agreement provides that "where qualification and ability to
work are equal overall, seniority shall prevail." The issue before the arbitrator is whether
was equal overall to Castenuela in his ability and qualifications to run the Turmac mixer on
June 1st. Complete equality is never to be expected, and the question is whether the grievant
roughly as capable as Castenuela to perform this work. For the following reasons, I
he was not, and therefore deny the grievance.
The grievant was trained in the operation of the Turmac mixer when it was first
has not worked on it since it has been operational. The Company cited a number of changes
mixer since installation which it believes renders the grievant's training obsolete. Some of
changes involved replacing defective parts and chips. Presumably the grievant's training was
on the mixer operating properly and the replacement of defective valves and computer chips
not have invalidated that training. Some of the other modifications, however, do represent
changes in how the mixer operates. Of
greater significance to this decision is the fact that the mixer does not always operate
as it is supposed
to. From the testimony of Castenuela and Strasser, it appears that the computer controls
make mistakes, and the Turmac routinely requires operator intervention to maintain proper
Even with Castenuela, an experienced operator, at the controls, the mixer was not working
on the weekend of May 31 - June 1st.
This is not a job posting case, in which the employe selected will normally be
a break-in period to familiarize himself with the job. This is instead an overtime assignment
where the employe must be able to perform the work proficiently from the start. The
of ability for overtime work must be made in the context of the actual work to be performed,
must factor in not only the machines to be employed but the circumstances under which the
be done. Given this, it is possible that an employe may be qualified for some overtime
on a given machine, and not qualified for others on that same machine. In this case, the
made a reasonable judgment that the Sunday work would be performed on the Turmac
sophisticated piece of machinery which, notwithstanding the computer controls, is subject to
malfunctions and which had in fact been malfunctioning in the days before the overtime
was made. The production was needed for the next morning's orders, and the work was to
performed with no maintenance employes on duty and no supervisors available. Thus the
could reasonably have concluded that one qualification for doing this particular overtime
was the operator's ability to identify and immediately respond to problems, without
2/ The Union has argued that the Employer
may not defend itself in this case by citing the lack of maintenance
employes on Sunday, since it was the Company that decided not to schedule those employes.
The Company and
the Union both have a duty to deal with one another in good faith, and the Company cannot
circumstances of the job assignment to evade the contract. By the same token, the Company
does not have an
obligation to structure the work so as to maximize a senior employe's opportunity to claim
overtime. The decision
not to have maintenance employes on duty was not driven by a desire to frustrate the
grievant's bid for the work.
It was based on the unwillingness of the maintenance employes to work on
It appears that the grievant possessed the minimum qualifications to operate the
mixer, and may well have been able to effectively perform this work when help was
available to deal
with problems. However, the overtime assignment on June 1st required not only the ability
the mixer, but also the ability to spot and correct malfunctions. It is clear that the grievant
roughly equal to Castenuela in familiarity with the quirks and problems of the mixer, and did
possess equal ability to respond to those problems. It follows that he was not "equal overall"
Castenuela in the ability to perform the available work, and was therefore not entitled to
On the specific facts of this case, I conclude that the Company did not violate the
assigning the work to Castenuela. Accordingly, I have denied the grievance.
On the basis of the foregoing, and the record as a whole, the undersigned makes the
The Employer did not violate the collective bargaining agreement by working Ruben
Castenuela, Jr. on June 1, 1997. The grievance is denied.
Dated at Racine, Wisconsin, this 25th day of June, 1998.
Daniel Nielsen, Arbitrator