BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL 563
FOREMOST FARMS USA
Previant, Goldberg, Uelmen, Gratz, Miller and Brueggman, S.C., by
Attorney Scott D. Soldon,
appearing on behalf of the Union.
Quarles & Brady, by Attorney Fred Gants, appearing on
behalf of the Company.
Teamsters Local 563, hereinafter referred to as the Union, and
Foremost Farms USA,
hereinafter referred to as the Company, are parties to a collective bargaining agreement
provides for the final and binding arbitration of disputes arising thereunder. The Union
a request, with the concurrence of the Company, that the Wisconsin Employment Relations
Commission designate a member of its staff to act as an arbitrator to hear and decide a
over the meaning and application of the terms of the agreement. The undersigned was so
designated. Hearing was held in Appleton, Wisconsin on July 17, 1998. The parties waived
portion of the grievance procedure requiring a written award within five days after the
of the hearing. (TR-4 & 5). The hearing was transcribed and the parties filed post
which were exchanged on October 5, 1998.
The facts underlying the grievance are not in dispute. The three grievants, Jerry
Michael Zielinski and Chuck Ullman were each denied pay for Thanksgiving Day, November
27, 1997. Each were notified in writing on December 1, 1997 that holiday pay was denied
because each failed to work his last scheduled work day before the holiday
and because it was the beginning of the deer gun season. Unmuth requested and was
vacation starting on November 22, 1997 through November 29, 1997. Unmuth requested a
personal holiday for Friday, November 21, 1997 which was denied because the schedule was
already posted. Unmuth's wife called in and reported that he was sick on November 21,
Ullman requested and was granted vacation from November 23, 1997 through November 29,
1997. Ullman called in sick on November 22, 1997. Zielinski requested and was granted
vacation for November 23 through November 25, 1997. He too called in sick on November
Each of the grievants was paid sick leave for the day he called in sick. The
not request verification of the grievants' illnesses, and after the holiday was denied him,
of the grievants provided any proof that he was ill on the day he called in sick. On
4, 1997, the grievants grieved the denial of holiday pay which grievance was denied and
to the instant arbitration.
The parties were unable to agree on a statement of the issue. The Union frames the
Did the employer violate the collective bargaining agreement by refusing
to pay holiday pay to the three grievants?
If so, what is the appropriate remedy?
The Company frames the issue as:
Did the employer violate Article 14 Holidays, Section 14.1 of the
collective bargaining agreement when it denied the grievants holiday pay for the
1997 Thanksgiving holiday?
If so, what is the appropriate remedy?
The undersigned frames the issue as follows:
Did the Company violate the parties' collective bargaining agreement when
it denied the grievants holiday pay for Thanksgiving Day, 1997?
If so, what is the appropriate remedy?
PERTINENT CONTRACTUAL PROVISIONS
ARTICLE 11 VACATIONS
. . .
SECTION 11.10 In the event a holiday falls during an employee's
he/she shall receive holiday pay for that day in addition to vacation pay.
. . .
ARTICLE 14 HOLIDAYS
SECTION 14.1 The Employer agrees that each regular employee shall
eight (8) hours pay at his/her current hourly rate for the following holidays: New
Year's Day, Presidents' Day, Memorial Day, Fourth of July, Labor Day, Veterans
Day, Thanksgiving Day and Christmas Day, provided the employee works his/her
last scheduled work day preceding, and his/her first scheduled work day following
the holiday, unless excused by the Employer. Employees who work on any of the
above mentioned holidays shall receive an amount equal to one-half (1/2) of his or
her straight time rate for each hour worked on said holidays, which compensation
shall be considered as overtime and paid in addition to any and all overtime
compensation which may be due under the provisions contained in Article 18 of
this Agreement dealing with the payment of overtime. Hours worked on a holiday
shall also be used in the computation of weekly overtime. Employer agrees to
minimize work as much as possible on Sundays and holidays.
The Union contends that the Company violated the agreement by refusing to pay
pay to the grievants for Thanksgiving Day, 1997. It relies on Article 11,
Section 11.10 which
provides that if a holiday falls during an employe's vacation, he/she shall receive holiday pay
addition to vacation pay and it asserts that this is the only applicable provision in the
It observes that each of the grievants was on vacation when the Thanksgiving holiday
and the sick days coincided with the last day prior to their vacations. It points out that Sec.
11.10 contains no qualifiers. It argues that the Company's reference to Article 14 and the
requirement to work the last preceding and first scheduled workday following does not
Sec. 11.10. It cites the following arbitration cases, Miami Copper Co., 16 LA 191 (Prasow,
1950), Streitman Supreme Bakery of Cincinnati, 41 LA 621 (Saugee, 1961) and George
E. Failing Co., 93 LA 598 (Fox, 1989), in support of its position that the "surrounding
requirement is completely independent and does not qualify the "holiday pay during a
provision. It contends
that the parties could have put language in the contract that disqualified an employe
receiving holiday pay in addition to vacation pay but they chose not to do so and the
should not insert intent or language the parties failed to include.
The Union also asserts that a vacation day is an excused absence under Article 14,
14.1. It states that assuming arguendo that Sec. 14.1 is applicable, it provides
"surrounding days" may be excused by the Company and when an employe is on vacation,
absolutely excused as the Plant Superintendent testified. It submits that the "surrounding
requirement is to prevent employes from stretching holidays into mini-vacations and to assure
full work force before and after a holiday and as the grievants were on vacation, they were
expected to work and did not disrupt production but were excused from working and thus
qualify for holiday pay.
The Union also asserts that as the grievants called in sick and were granted sick pay
not questioned further about their absences, their absences were excused. It points to the
testimony of the former Vice President for Human Resources who admitted that by paying an
employe sick pay for an absence, the Company has excused the absence. It cites City of
City, 88 LA 315 (Imundo, 1987) in support of its argument that an employe excused for sick
leave purposes cannot be denied holiday pay based on the same absence which was excused
for which employes were paid sick pay without question.
The Union submits that the Company failed to establish a past practice of denying an
employe holiday pay for not working the scheduled workday in a work week prior to the
The Union observes that the Company cited John Collins and Mark Warning as examples but
could not even pinpoint the decade involved and this hearsay was not substantiated by any
records. It notes that another example cited by the Company was Mike Ziegert but he
holiday pay and never had to file a grievance. The Company, according to the Union, failed
prove any established past practice and the Company's argument is meritless.
In conclusion, the Union takes the position that the Company violated the contract by
refusing to grant the grievants holiday pay and it seeks eight hours of pay for each grievant.
The Company contends that the grievance must be denied as it did not excuse the
grievants' individual absences which coincided with their vacations and the deer gun hunting
season. It cites Sec. 14.1 which conditions holiday pay on employes working their last
workday preceding the holiday unless excused and each grievant failed to work on his last
scheduled workday but called in sick so they failed to fulfill the contractual requirements and
grievants are not entitled to pay for Thanksgiving 1997. It points out that Unmuth called in
after being denied a personal holiday for his last scheduled workday preceding Thanksgiving,
The Company argues that it is significant that none of the grievants came forth to
establish that they were indeed sick and unable to report and they did not contact their
to object to denial of holiday pay or to offer to document the illness. The Company insists
these employes exhibited a lack of respect for the Company and their fellow employes. It
out that the Company had to go through the process of locating employes willing to work and
pay them overtime and co-workers were inconvenienced by having to work on short notice
the holiday season. The Company maintains that its concern about employes stretching their
Thanksgiving holiday is precisely why it bargained the qualifying language in the contract
it was correct in denying holiday pay to the grievants in accordance with this agreement.
The Company claims that the Union's reliance on Article 11, Sec. 11.10 ignores the
express language of Article 14. It asserts that Sec. 11.10 does not eliminate the express
of Sec. 14.1 and the specific language of Sec. 14.1 governs the more general language of
11.10. It also rejects the Union's argument that the grievants were excused because they
on vacation the day preceding the Thanksgiving holiday because the language of Sec. 14.1
not state the day preceding the holiday but requires the employe to work his/her last
workday preceding the holiday whether it is one day or ten days and as each called in sick on
last scheduled workday, not one worked his last scheduled workday and thus failed to meet
eligibility requirements for holiday pay.
The Company submits that merely because employes call in sick does not mean the
absence is excused, particularly under circumstances as suspicious as these. According to the
Company, the fact that the employes were paid sick leave does not mean their absences were
excused. It alleges that payment of sick leave does not equate with excusing the absence and
besides, it argues that they were paid in error and in any event would have been paid under
agreement for all unused sick leave by mid-December, so at most they were paid four or five
days early. It denies that this payment meant that the Company excused their absences in the
of the letter to each employe refusing to excuse the absence and denying holiday pay.
In conclusion, the Company seeks dismissal of the grievance in its entirety because the
grievants failed to work their last scheduled workday preceding the Thanksgiving holiday
were too coincidental to be ignored. It contends that its actions were in accord with past
that only employes who qualify, or whose absences are excused, receive holiday pay.
The determination of whether the grievants are
eligible for holiday pay depends on the
exact language of the parties' agreement. As noted by Arbitrator Klein in National Uniform
Service, 104 LA 901 (1995), "holiday pay eligibility provisions should be read in an aura of
common sense and fundamental logic and in light of all the relevant circumstances."
this to the instant case results in the following conclusions.
The Union claims that Article 11, Section 11.10 controls the instant case and the
undersigned need look no further. Sec. 11.10 provides that if a holiday falls during an
vacation, he/she receives holiday pay in addition to vacation pay. This language requires a
holiday to fall during an employe's vacation so he/she won't lose holiday pay when the
is already being paid for the day through the use of vacation. See Pennwalt Corporation, 88
LA 769 (McDonald, 1987). A review of the weekly work schedule (Ex.4) demonstrates that
Zielinski took vacation on Sunday, Monday and Tuesday and that Wednesday and Thursday
his off days and he returned to work on Friday, so the holiday never fell during his vacation.
Thus, in the case of Zielinski, it would appear that Sec. 11.10 is not applicable to him.
Unmuth and Ullman were on vacation for the entire week and the issue is whether Sec.
applies such that the eligibility requirements of Sec. 14.1 are not applicable. Some
hold that eligibility requirements do not apply as in the cases cited by the Union, whereas
arbitrators hold that the eligibility requirements for the holiday are applicable. See Pennwalt,
supra. Nothing in Sec. 11.10 provides that the eligibility requirements of Sec. 14.1 are to be
ignored and not given effect. Sec. 11.10 is merely a monetary provision so that an
would not lose a holiday simply because he is on vacation. It does not negate the qualifying
provisions of Sec. 14.1 to be eligible for a holiday.
Generally, holiday eligibility requirements are meant to prevent employes stretching a
into a mini-vacation and the usual language requires the employe to work the last scheduled
workday preceding and the first scheduled workday following the holiday. Here, the
of Sec. 14.1 states the employe is to work his/her last scheduled workday preceding and
first scheduled workday following the holiday. Thus, it is the employe's last scheduled
preceding the holiday, and not the Company's last scheduled workday, that must be worked
satisfy the eligibility requirement. The parties agreed to more than the mere holiday
They agreed to prevent stretching of a holiday and surrounding vacation and/or personal
The language of Sec. 14.1 is very specific as opposed to the more general language of
Sec. 11.10, thus the undersigned finds that Sec. 14.1 applies even when a holiday
an employe's vacation. The Union's argument that the Company's granting the employe's
vacation meant the employes met the qualifying requirements of Sec. 14.1 is not persuasive
because the language of Sec. 14.1 requires work on the employe's last and first scheduled
workdays preceding and following the holiday. In CWC Kalamazoo, Inc., 105 LA 555
(Roumell, 1995), the grievants, who were on vacation the day after a holiday and took sick
leave the day after their vacation, were not entitled to holiday pay under language interpreted
be the employe's last regularly scheduled workday after the holiday.
The Union's final argument is that the grievants were excused from the qualifying
requirement because they were paid sick leave for the day they called in sick. Sec. 14.1
the employe to work his/her first and last scheduled workdays "unless excused by the
The letters of December 1, 1997 to the grievants denying them holiday pay clearly indicate
they were not excused from this work requirement. (Ex. 3) Additionally, the circumstances
Unmuth's wife calling in that he was sick the day before the deer gun
season, a day the grievant had requested off, leads to the very strong conclusion that he
sick. Also, Ullman and Zielinski calling in sick the first day of the deer gun hunting season
too suspicious to believe that they were in fact really sick especially when Ullman had
shifts to work the earlier shift on Friday, November 21, 1997. (Ex. 4) None of the grievants
presented any documentation that they were in fact sick and none of them testified at the
It is concluded that the absences were not excused even though they were paid sick leave.
Company could have denied the sick pay but it would have had to pay it anyway on or
December 15 under Sec. 17.5 of the contract. The evidence simply failed to prove that the
Company excused the grievants' failure to work the days they called in sick. The grievants
to meet the qualifying requirements for holiday pay for Thanksgiving Day, 1997 under Sec.
of the agreement and are not entitled to holiday pay.
Based on the above and foregoing, the record as a whole, and the arguments of
the undersigned issues the following
The Company did not violate the parties' collective bargaining agreement when it
the grievants' holiday pay for Thanksgiving Day, 1997, and therefore, the grievance is
Dated at Madison, Wisconsin this 3rd day of November, 1998.
Lionel L. Crowley /s/
Lionel L. Crowley, Arbitrator