BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
UPIU, LOCAL 131
CASTLE ROCK CONTAINER
a Division of CONSOLIDATED PAPERS, INC.
(Grievance of Leo R. Lynch)
The above-captioned parties, herein "Union" and "Company", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Adams, Wisconsin, on June 11, 1998. There, the parties agreed that I should retain my
to resolve any questions that may arise over application of my award if the grievance is
The hearing was not transcribed and both parties filed briefs that were received by July 21,
Based upon the entire record and arguments of the parties, I issue the following Award.
The parties have agreed to the following issue:
Whether the grievance should be sustained and, if so,
what is the appropriate remedy?
The Company manufactures corrugated cartons at its Adams, Wisconsin, facility.
The collective bargaining contracts between the Company and the Union for a
years contained the same language found in Article 9, Section 3, of the parties' 1990-1994
which stated in pertinent part:
. . .
3. Hours of work on Saturday shall be paid at the
rate of time and one-half unless the employee
has been off due to disciplinary action during the normal workweek hours. The hours
on Sunday shall be paid at the rate of double time unless the employee has been off due to
disciplinary action during the normal workweek hours. If any employee has been absent
work during the workweek for justifiable cause shown to the satisfaction of the Company,
if requested, such absence will not be deemed to have broken the employee's workweek for
the purpose of computing pay rates for Saturday and Sunday work. An employee shall be
considered absent for justifiable cause if their absence is due to any of the reasons set forth
in Article 16 herein, entitled Definition of Justifiable Absence.
. . .
Article 16 of said contract, entitled "Definition of Justifiable Absence"
. . .
1. The necessary absence of an
employee will include all absences due to the following
death in the immediate family.
B. Weddings in the
C. Jury duty.
D. Approved leave of
E. Authorized business
in connection with the Union or the Company.
2. When employees are absent from work or when a
question arises as to whether employees
are entitled to holiday pay, such employees shall be considered as being absent with
excuse only if they are:
A. On their
serving on a jury, or absent on paid funeral leave.
B. So sick that they are
unable to report for work and are able to prove such sickness if
the Company requests proof. This does not cover illness or injury resulting directly
or indirectly from the use of intoxicants, hallucinogenic or illegal drugs, marijuana, or
C. Absent because the
serious illness of some member of the family necessitates their
personal attendance upon the ill person during the employee's scheduled working
hours. In all such cases, the employee must be prepared to furnish satisfactory proof
to the Company if requested to do so. Satisfactory proof shall consist of a statement
from the attending physician identifying the patient and setting forth the nature and
seriousness of the illness.
D. Advised by the
supervisor that their services are not required because of breakdown
or lack of work, or is otherwise absent because of direct action initiated by the
Company, except that an employee who is absent on disciplinary layoff shall not be
considered as having a justifiable excuse.
E. Absent because of
the occurrence of acts of God such as fires, floods, earthquakes,
or tornadoes, which make it impossible for the employee to report for work.
3. For the
purpose of this
Article, when employees are absent from work under circumstances
where the reasons therefore are known only by them, the employee shall have the burden or
proving "justifiable absence" as herein defined. Waiver of proof by the company in any
particular instance will constitute waiver in no other instance.
. . .
The Company under that
and prior contracts thus paid time and a half for Saturday work
whenever employes at its Adams facility missed work and were on paid sick leave during the
Monday-Friday workweek. Hence, employes could be on paid sick leave during the week,
receive overtime pay for working on Saturdays even though they did not actually work more
hours in that week. This practice apparently was not followed at the Company's other
addition, Union Vice-President Burton Moore, former General Manager Donald H. Williams
Union President Leo R. Lynch all testified without contradiction that employes for years
Saturday overtime whenever they worked on a Saturday in a week that had a paid, unworked
The Company believed that employes were exploiting this situation by deliberately
sick during the regular Monday-Friday workweek just so they could receive time and a half
working Saturdays. The Company in 1994 contract negotiations with the Union thus
Article 16 of the former contract be replaced with the following language:
Definition of Justifiable
1. The necessary absence of an employee will
include all absences due to the following
Weddings in the
B. Jury Duty
C. Approved leave of
D. Authorized business
in connection with the Union or the Company
G. Attending approved
H. Funeral leave
I. Acts of God, such as
fires, floods, earthquakes, or tornadoes which prevent the
employee from reporting to work
J. Approved personal
K. Military absences
absences will not be
counted against an employee's attendance record.
3. For the purpose of this Article, when employees
are absent from work under circumstances
where the reasons therefore are known only by them, the employee shall have the burden of
proving "justifiable absence". Waiver of proof by the company in any particular instance
constitute waiver in no other instance.
Labor Relations Representative Jean Matthews was the
Company's chief negotiator in the 1994
negotiations. Matthews testified that the Union negotiators then agreed to the Company's
Union President Lynch, who sat in on the 1994 negotiations, also testified that the Union
However, both Lynch and Matthews testified without contradiction that the Company
negotiations never specifically proposed that employes no longer would receive Saturday
in weeks that contained a paid, nonworked holiday. Furthermore, Matthews admitted that no
negotiator in negotiations ever expressly agreed that holidays no longer would be counted for
purposes of paying time and a half on Saturday.
The parties eventually agreed on the aforementioned new language and it now is
into the contract as Article 16. The parties also agreed on new language for Article 9,
which now provides:
. . .
Hours of work on Saturday shall be paid at the rate of time and
one-half unless the employee has
been off due to disciplinary action during the normal workweek hours. The hours worked on
shall be paid at the rate of double time unless the employe has been off due to disciplinary
during the normal workweek hours. If any employee has been absent from work during the
workweek for justifiable cause as defined in Article 16 and documented, if requested, by the
Company, such absence will not be deemed to have broken the employee's workweek for the
of computing pay rates for Saturday and Sunday work except as otherwise provided for in
. . .
After the new contract was signed, employes at the Company's Adams facility
receive time and a half for Saturday work even if they missed work during the regular
work week because of a paid, unworked holiday. That practice, which was unbeknownst to
Company officials, continued because the prior bookkeeper at the facility continued to pay
and a half and because she apparently trained her successor to do the same.
Once the Company learned about said payment, General Manager Richard J.
letter dated May 27, 1997 (unless otherwise stated, all dates hereinafter refer to 1997),
. . .
As you may already be aware, it was recently discovered that the
divisional pay procedure for
processing time and one-half for Saturday work was not in concert with the labor agreement.
Specifically, if an employee was off work in a given week for a reason not identified in
(Definition of Justifiable Absence) such as being sick, and then worked on that Saturday, that
employee was inappropriately paid time and one-half for those Saturday hours. This
of which you received a part, is in excess of $33,000 and dates back to the end of 1994.
I have spent considerable time with my staff
reviewing the error and the potential for corrective
action to recover this overpayment. Castle Rock clearly has the right to recovery. But
is the cooperation that has been building among employees and between labor and
believe the imposition of hardship on our employees at this late date would only prove to be
counterproductive. We need to focus our energy on improving our value to customers, as
to gaining new customers.
Therefore, in the spirit of cooperation, and
in recognition of the improvement in attitude I see
growing, I have decided not to recover the overpayment.
I am writing to each of you personally so
you will understand this decision and the reason it was
. . .
The Company subsequently refused to pay time and a half for Saturday work that was
during the work week that contained Memorial Day, a paid holiday.
The Union then filed the instant grievance on June 10, 1997, in which it complained,
alia: "Overtime pay on Saturday when a holiday falls within
POSITIONS OF THE PARTIES
The Union contends that its negotiators in the 1994 contract negotiations never
change the Company's practice of paying time and a half for Saturday work that fell during a
that contained a non-worked paid holiday and that Article 16 should now be interpreted just
as it has
been in the past.
The Company claims that there is no contractual provision requiring it to continue
such a past
practice; that Articles 9 and 16 of the present contract fully support its position because they
refer to paid, unworked holidays as one of the justifiable reasons excusing an absence; and
Union's arguments "based on parol evidence and unilateral mistake" are without merit
contract is clear and unambiguous on this issue.
It is undisputed that the Company up until General Manager Schweitzer's May 27
referenced above always paid time and a half at its Adams facility for Saturday work that fell
a week that had a paid, unworked holiday; that the Company in the 1994 negotiations never
to change that practice; that Company negotiators at that time wanted to end the abuse that
when some employes took sick leave during the week just so they could get time and a half
Saturday work; and that the Union in those negotiations never agreed to the interpretation the
Company is advancing here a point conceded by Company negotiator Matthews.
The Company, however, asserts that such parol evidence cannot be considered
Articles 9 and 16 of the contract are clear and unambiguous in providing that Saturday
to be paid only when employes have a "justifiable absence" that is expressly listed in Article
Since paid holidays are not listed in Article 16, the Company asserts that it did not need to
and a half for the Saturday work here. It therefore cites How Arbitration
Works, Elkouri and Elkouri,
pp. 598-99, (5th Ed., BNA, 1997), in support of its claim that the parol
evidence rule "forecloses
inquiry into the give and take of negotiations leading to an agreement that was ultimately
writing for the purpose of varying the meaning of that written agreement."
There are several major problems with this claim.
The first is that the contract does not clearly and unambiguously state that Saturday
is not to be paid whenever a paid, non-worked holiday falls within that week.
Instead, Article 16 only
lists those justifiable absences that generate Saturday overtime with paid, unworked holidays
being one of them. This certainly is a good argument and it in
many cases would prevail absent any other countervailing factors. However, the
Company is really
arguing that the contractual principle expressio unius
est exclusio alterius should be applied here
i.e., that the listing of certain items in Article 16 means that any other unlisted items therein
as paid, unworked holidays - are not covered by Article 9's grant of Saturday overtime. See
Arbitration Works, supra, p. 497.
This argument, however, leads to a rather tortured interpretation of Article 16. For
in section 2 therein that the listed "absences will not be counted against an employee's
record", the Company's interpretation means that non-listed absences caused by
contractually-provided holidays such as Memorial Day, July 4, Labor Day, etc.
will count, because they are not
among the absences listed in section 1. That construction, though, can hardly be correct
absent clear language to the contrary it is universally understood that employes
disciplined for taking their contractually-mandated holidays. Such an interpretation hence
"When one interpretation of an ambiguous contract would lead to
harshly absurd, or nonsensical
result, while an alternative interpretation equally consistent, would lead to just and reasonable
the latter interpretation will be used." How Arbitration Works,
supra, p. 495. (footnote citations
Furthermore, the parol evidence rule is not the only canon of construction that must
considered in ascertaining a contract's meaning. There are other canons in the arbitration
must be considered, the most important of which is to always ascertain to the
possible what the parties did and did not intend when they either added contract
contract language, modified contract language, and/or left contract language alone.
That is why: "The primary goal of the 'rights' arbitrator is to determine and carry
mutual intent of the parties." How Arbitration Works,
supra, p. 471. Hence, "the standards of
construction as used by arbitrators are not inflexible. They are but 'aids to the finding of
hard and fast rules to be used to defeat intent.'" Id, at 474.
That is why:
"Arbitrators seek to interpret collective agreements to reflect the
intent of the parties. They
determine the intent of the parties from various sources, including the express language of
agreement, statements made at pre-contract negotiations, bargaining history, and past
Constructions favoring the purpose of the provision are to be favored over constructions
to conflict with the purpose of the provision. Moreover, the terms of the
collective bargaining agreement are to be applied in a logical
manner consistent with the
language, intent of the parties, and with the entire agreement. The collective bargaining
should be construed, not narrowly and technically, but broadly so as to accomplish its
Id., at 479-480. (footnote citations omitted).
What, then, are the "evident aims" here?
It is undisputed that the Company for years paid Saturday overtime when a work
a paid, unworked holiday. The Company certainly cannot be faulted for trying to change
practice, just as it was entitled to try to change any other part of the contract, or practice, it
found desirable. However, if any such change is to come about, it must be mutually agreed
to by the
Here, Company negotiator Matthews admitted that the Union in the 1994 contract
negotiations never agreed to the construction the Company advances here. His testimony
surprising because he also acknowledged that Company negotiators in 1994 never told the
about the change it is advancing here. Absent any such agreement from the Union, it is
clear that the
Union in the 1994 negotiations never intended for the prior practice to change. Moreover,
Company itself admits that it then never made any specific contract proposals that expressly
eliminated time and a half Saturday pay whenever a paid, unworked holiday occurred in that
it also is clear that the Company itself never communicated to the Union that it intended to
this long-standing practice.
It thus is the Company, and not the Union, which must bear the price for any
confusion created by the Company's contract proposal because: "ambiguous language will be
considered against the party who proposed or drafted it. Enforcement of this rule is
because it promotes careful drafting of language and careful disclosure of what the drafter
by his language." Id, at 509-510.
Hence, there was no clearly communicated intent by either side in the
1994 negotiations to
alter this practice.
If one presupposes, as I do, that an arbitrator's primary duty is to ascertain what the
intended when they agreed to certain contract language, it therefore follows that there is no
the Company's claim here that bargaining history and past practice cannot be considered in
determining whether said practice should continue.
Arbitrator Richard Mittenthal explained why past practices must be considered
contract language in his seminal article on past practices when he wrote:
. . .
By relying on practice, the burden of the decision may be shifted
from the arbitrator back to the
parties. For to the extent to which the arbitrator adopts the interpretation given by the
themselves as shown by their acts, he minimizes his own role in the construction process.
significance of practice as an interpretive aid lies in the fact that the arbitrator is responsive
values and standards of the parties. A decision based on past practice emphasizes not the
viewpoint of the arbitrator but rather the parties' own history, what they have found to be
agreeable over the years. Because such a decision is bound to reflect the parties' concept of
rightness, it is more likely to resolve the underlying dispute and more likely to be acceptable.
solution created from within is always preferable to one which is imposed from without.
citation omitted) "Past Practice and the Administration of Collective Bargaining
Arbitration and Public Policy, Proceedings of the 14th Annual
Meeting of the National Academy of
Arbitrators", (BNA, 1961), p. 38.
. . .
He added: "The practice, in short, amounts to an amendment of the agreement".
Id, at 42.
He therefore concluded that:
Thus, the union-management contract includes not just the
written provisions stated therein
but also the understandings and mutually acceptable practices which have developed over the
Because the contract is executed in the context of these understandings and practices, the
must be presumed to be fully aware of them and to have relied upon them in striking their
Hence, if a particular practice is not repudiated during negotiations, it may fairly be said that
contract was entered into upon the assumption that this practice would continue in force. By
silence, the parties have given assent to "existing modes of procedure." In this way, the
by implication become an integral part of the contract. Id., at
As a result, stated he:
"Those responsible for the administration of the agreement can no
more overlook these practices
than they can the express provisions of the agreement. For the established way of doing
usually the contractually correct way of doing things. And what has become a mutually
the agreement is likely to remain so. Hence, the full meaning of
the agreement may frequently
depend upon how it has been applied in the past." Id., at 37.
The United States Supreme Court also has explained that:
"the labor arbitrator's source of law is not confined to the express
provisions of the contract, as
the industrial common law the past practices of the industry and the shop is
equally a part of the
collective bargaining agreement although not expressed in it." United Steelworkers of
v. Warrior and Gulf Navigation Co., 363 U.S. 574, 581-582 (1960).
Here, the parties for years effectively amended their prior
contracts by providing for Saturday
time and a half in a work week that contained an unworked, paid holiday even though paid,
holidays were not listed as one of the justifiable absences set forth in Article 16. It thus is
surprising that Article 16 of the present contract also does not list paid, unworked holidays as
justifiable absence since: (1), the prior contract did not do so; (2), the Company in the 1994
negotiations never told the Union it wanted to change that practice; (3), the Union in fact
agreed to that change; and (4), there was never any mutual agreement by the parties to stop
Because it is the parties' intent that is controlling in ascertaining what rights and
are covered in a particular collective bargaining agreement, it follows that the instant contract
the prior ones entered into by the parties over the years provides for Saturday
overtime in a work
week that has a paid, unworked holiday.
Contrary to the Company's claim, this finding is not violative of Article 39, Section
admonition that: "The Arbitrator shall have no authority to add to, detract from, alter,
modify any provision of this Agreement or impose on any party hereto a limitation or
explicitly provided for in this Agreement." For here, all that is being done is to recognize
the parties have a well-developed past practice of paying the Saturday overtime in question;
parties in the last contract negotiations never even discussed let alone agreed
on stopping this
practice; and (3), said practice absent mutual agreement to the contrary
remains in effect, just as
it remained in effect during prior contracts.
Hence, it is the Company, not the Union, that now seeks to alter the manner in which
Saturday overtime provision of Article 9 always has been administered. That, it cannot do.
The Company cites Pillowtex Corp., 92 LA 321 (Goldstein,
1989), in support of its
additional claim that "a unilateral mistake of one party will not serve to void an agreement."
Mistake really has little to do with this case because: (1), the Company never
to discontinue this practice in the 1994 negotiations; and (2), the Union in those negotiations
voiced its mutual agreement to change said practice. If there was any mistake here, it thus
Company's mistake in believing that this practice could be discontinued even though it never
expressly proposed that it be discontinued and even though there never was any mutual
to do so in the parties' 1994 negotiations.
Having determined that the Company violated the contract as amended by the parties'
practice, the Company is now required to make whole all affected employes by paying to
difference between what they earned in straight time for working on Saturdays that had a
unworked holiday in the workweek and what they should have earned in overtime for said
work under the parties' well-developed past practice. In addition, the Company must pay
Saturday overtime in the future whenever they work on Saturdays in weeks that have a paid,
unworked holiday. Pursuant to the agreement of the parties, I shall retain my jurisdiction for
sixty (60) days to resolve any questions that may arise over application of this Award.
In light of the above, it is my
1. That the grievance is hereby sustained.
2. That the Company shall undertake the remedial and corrective backpay action
3. That the Company for the duration of the contract shall continue to pay time
and a half
for Saturday work that is performed in a week that has a paid, unworked holiday.
4. That to resolve any questions that may arise over application of my Award, I
retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 1st day of September, 1998.
Amedeo Greco, Arbitrator