BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SULLIVAN BROS., INC.
THE MILWAUKEE AND SOUTHERN
CARPENTERS DISTRICT COUNCIL OF THE
UNITED BROTHERHOOD OF CARPENTERS AND
OF AMERICA, AFL-CIO
(Saturday Overtime Pay Grievance)
Previant, Goldberg, Ulemen, Gratz, Miller & Brueggeman, S.C., by
Atty. Matt Robbins, for
Milwaukee and Southern Wisconsin Carpenters District Council
Atty. David A. McLean, General Counsel, Associated General
Contractors of Wisconsin, Inc.,
Counsel for Sullivan Brothers, Inc.
The Milwaukee and Southern Wisconsin District Council of Carpenters, a labor
and Sullivan Brothers, Inc., an employer, are parties to a collective bargaining agreement
provides for arbitration of grievances, disputes or complaints arising thereunder. The
made a request, in which the employer concurred, that the Wisconsin Employment Relations
Commission appoint a member of its staff to hear and decide a grievance concerning
work performed on a Saturday. The Commission designated Stuart Levitan to serve as
arbitrator. Hearing in the matter was held on July 14, 1998, in Madison, Wisconsin. The
submitted written arguments by August 14, 1998.
STATEMENT OF THE ISSUE
The District Council states the issue as follows:
Did the employer violate the collective bargaining agreement, sections 11.1 and 11.2,
by failing to pay John Merritt at time-and-one-half for hours worked on March 28,
1998? If so, what is the remedy?
The Employer states the issue as follows:
Whether an employer is obligated to pay an employee time and one-half for time
worked on a Saturday by an employee, where the employee had neither worked forty
hours or five days during the week as a result of circumstances beyond the employer's
control; namely the employee being compelled to appear in court to answer criminal
charges arising from an arrest for allegedly operating a water craft while intoxicated.
I adopt the issue stated by the District Council.
RELEVANT CONTRACTUAL LANGUAGE
. . .
HOURS OF WORK
SECTION 11.1. WORKDAY AND WORKWEEK.
Eight (8) consecutive hours between 6:00 A.M. and 6:00 P.M., with one-half
hour lunch period, shall constitute a workday. Six (6) days from Monday through
Saturday, inclusive, shall constitute a workweek, however, Saturday may be used as
a straight-time day if time has been lost during the week due to inclement weather or
conditions beyond the contractor's control. No one is to be discriminated against for
choosing not to work on Saturday. Working on a Saturday make-up day shall be an
SECTION 11.2. OVERTIME, SATURDAY, SUNDAY AND HOLIDAY
(a) All time in excess of eight (8) hours per day, all time worked before
6:00 A.M. or after 6:00 P.M. and all time worked on Saturday shall be paid at the rate
of one and one-half times the established hourly rate of pay with the exception of time
worked on Saturday make-up which shall be at straight-time.
(b) All time worked on Sundays and legal holidays shall be paid for at
double the established hourly rate of pay. Time worked between 6:00 A.M. Sunday
and 6:00 A.M. Monday is considered Sunday work. The same principle applies to
(c) By mutual agreement between the Employer and employees on a
jobsite, the workweek may consist of a four-day, forty-hour week, Monday through
Saturday, consisting of four ten-hour days without overtime rates applying. However,
Saturday may only be used as a straight-time day if time has been lost during a
weekday due to inclement weather or conditions beyond the contractor's control.
No one is to be discriminated against for choosing not to work Saturday. Working
a Saturday make-up day shall be an individual decision. When working such
workweek all hours worked in excess of ten hours per day shall be paid at one and
one-half the hourly rate of pay. All hours worked in excess of forty hours after four
work days shall be paid at one and one-half times the hourly rate of pay, and double
time for Sundays and Holidays. The contractor shall advise the Union of the
establishment of such workweek prior to implementation.
(d) MAKE UP DAYS. (Weather Related or Conditions Beyond the
Control of the Employer). Ten hour days may be implemented at the
hourly wage rate through Friday, provided there is mutual agreement between the
Employer and employees. Example: Wherein the employees are unable to work
because of weather or related conditions beyond the control of the Employer, ten-hour days
for the remainder of the week may be used whether an eight (8) or ten (10)
hour workday was previously scheduled at the start of the workweek.
. . .
The grievant, John Merritt, has worked as a carpenter
for Sullivan Brothers, Inc. for the past
four years. This grievance concerns the employer's decision to pay Merritt at straight time
performed on Saturday, March 28, 1998, rather than at time and one-half.
During the period in question, Merritt and another Sullivan Brothers carpenter, Tom
were working with thermofiber insulation at the Oscar Mayer corporate offices in Madison.
Union presented hearsay evidence at hearing that Oscar Mayer officials had requested that
be performed after working hours and on Saturday, and that a Sullivan
Brothers supervisor had authorized such Saturday work at time and one-half rates.
Merritt and Monk
did work, as a two-person crew, every other Saturday for a period of time, particularly on
28 and March 14, 1998.
On Monday, March 22, 1998, Merritt did not work because he was required, under
of law, to appear in court in Illinois to face certain charges (which were subsequently
Monk worked that day.
Merritt and Monk worked on Saturday, March 28. Merritt was paid at straight time;
who had worked 40 hours that week, was paid at time and one-half. Merritt had not
contacted a supervisor for authorization to work that Saturday at time and one-half.
A Sullivan Brothers supervisor testified at hearing that, had Merritt worked on that
he would also have been paid at time and one-half. Merritt, who testified he had previously
supervisors he would not accept Saturday straight-time work, was not aware until he received
paycheck that the hours on March 28 were being regarded as straight-time. On at least five
from 1994 to 1998, Merritt received time and one-half for worked performed on a Saturday
in a week
in which he worked fewer than 40 hours.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be
sustained, the Union asserts and avers
In the four years that the grievant has worked for the employer, he has received
overtime pay for Saturday work, even when he had not worked 40 hours during the
first five days of the wee. Further, he had advised the employer that he would not
work on a Saturday for straight time under any conditions
Here, the grievant obtained approval for work on Saturday, March 28, and was only
advised after that date that the work would be paid at straight time. The other
carpenter with whom he worked did receive overtime pay for the day in question.
During the 1993 negotiations, the District Council and the Associated General
Contractors addressed the issue of application of the Saturday pay system. In
unrebutted testimony, union negotiator Greg Sefcik testified that the parties mutually
agreed that a Saturday make-up day could apply at straight time only where it was
applicable to the whole crew and where conditions arise affecting the progress of the
whole project, such as weather or machinery breakdowns. The
written correspondence of former AGC general counsel Paul Lawent corroborates
that straight time could only be applied where a condition affected the entire crew, not
just one employee who missed a day for individual reasons. The employer's efforts
to attack Lawent's credibility fail.
It is also important to note that the employer, represented by the AGC, did not call
any AGC witness to rebut the Union's understanding, leaving the arbitrator to draw
the inference that an AGC negotiator would verify the Union's version.
Negotiating history from the 1990 negotiations also support the Union interpretation,
in that contemporaneous notes show that the reason for the Saturday make-up was
to show owners that union contractors had that option when bidding against non-union shops.
As its purpose was to address project-wide problems, it would make no
sense to have the clause apply to individual absences such as affected the grievant
The employer's interpretation also conflicts with the clear contractual clause that
"working a Saturday make-up day shall be an individual decision." The employer is
essentially asserting the right to pay an employe straight time any time the employe
is absent, for any reason, during the week.
There is only one instance known to the Union of a contractor attempting to pay
straight time under the circumstances cited here; upon the filing of a grievance, that
employer settled by paying the amount in dispute.
The only reasonable interpretation of the contract language is "conditions beyond the
contractor's control" refers to conditions which affect the project as a whole, such as
inclement weather; the parties never could have intended that an individual employe
missing working would be akin to an entire project shutting down. Finally, the fact
that the employer did not notify the grievant in advance that it would treat that
Saturday as straight time meant the grievant was prevented from exercising his
contractual right to make a voluntary decision about working on Saturday.
Accordingly, the grievance should be sustained and the employer ordered to make the
grievant whole for all losses.
In support of its position that the grievance should be denied, the Employer asserts
The language of the collective bargaining agreement clearly and unambiguously
provides that an employer is able to pay an employe straight time for Saturday work
where the employe missed time during the week due to circumstances beyond the
employer's control. There are few circumstances, other than an act of God, more
beyond a contractor's control that the situation where an employe is brought into
court facing possible incarceration. The employer was entitled to pay the grievant at
straight time when the grievant had worked neither five days nor forty hours during
the week due to his need to appear in court to face pending criminal charges.
The collective bargaining agreement expressly permits an employer to schedule work
on Saturday at straight time when time is lost during the week due to conditions
beyond the contractor's control. Here, there is no suggestion that the grievant was
compelled to work the Saturday in question since the employer was not even aware
at the time that the grievant would work that day.
Because the language is clear and unambiguous, the arbitrator need not look to
extrinsic evidence to determine the parties' intent. That intent, to permit Saturday
make-up days at straight time, is clear. Here, the employer had no control over the
circumstances which led to the grievant missing a regularly scheduled day of work.
The Union interprets "conditions beyond the contractor's control" to mean only
inclement weather, equipment failure or untimely delivery of materials; this makes the
essential agreed-upon language mere surplusage.
Arbitrators are to apply the literal meaning of plain contractual language; contract
language is not ambiguous is an arbitrator can determine its plain meaning without any
other guide. Here, the plain contract language leads to the clear conclusion that the
contract allows an employer to use Saturday for a make-up day when time is lost
during the week due to conditions beyond the contractor's control. Had the parties
meant to have the clause mean something else, such as only apply in cases of
inclement weather, machinery failure or untimely delivery, they could have so written
Further, isolated unexplained incidents that may deviate from the provisions of the
collective bargaining agreement do not constitute past practices. To be considered
a binding, a purported past practice must be unequivocal, clearly enunciated and
acted upon, and readily ascertainable over a reasonable period of time. The party
asserting that there is a practice has the burden of persuasion and proof of its
existence. Here, it is clear there is no basis for concluding a past practice exists. The
Union cites a single incident of a unilateral action by one member of the AGC, in
which that party determined it simply was not worth the time and effort to contest a
Further, the negotiations surrounding the creation and administration of the use of
Saturday as a make-up day simply supports the conclusion that the parties intended
Saturday to be used as a make-up day, not that an individual employe is entitled to
time and one-half if that employe works a Saturday in a week the employe has not
worked a five-day, forty hour week. While arbitrators should not use bargaining
history to interpret clear and unambiguous contract language, the bargaining history
here does support the employer, in that the contract incorporated language about
which the Union complained.
The language in the collective bargaining agreement is clear and could not reasonably
be given more than one meaning by reasonable people. There is no binding past
practice. The bargaining history supports the employer's application of the terms at
issue. Accordingly, the arbitrator should dismiss the grievance and disallow the
request for additional pay.
The Union has made several arguments in support of this grievance, including
history, past practice, and that the language of the collective bargaining agreement clearly
unambiguously supports its position.
I do not accept the Union's argument that the incident involving TriNorth Builders
bearing on this case. As the employer in the instant proceeding correctly notes, parties to
and other litigation often settle those controversies for reasons unrelated to the merits of the
That a similar grievance arose involving other parties on one occasion, and the employer
pay the (relatively modest) amount in question does not establish a past practice sufficient to
conclusively the grievance now before me.
Nor do I find the respective arguments about negotiating history persuasive.
Union wanted to eliminate the Saturday make-up provisions; just as certainly, the AGC
widest application, to increase its members' competitiveness in the bidding process. And,
status of the relationship between AGC and its former General Counsel, Lawent, I am
rely heavily on his testimony on this point.
The Union also argues that, because working a Saturday make-up day "shall be an
decision," and Merritt had previously foresworn all straight-time Saturday work, by
work he performed on Saturday was at time and one-half. I reject this argument as well.
is simply not conclusive that the employer had accepted as a binding condition from Merritt
work he performed as Saturday make-up was unequivocally time and one-half.
There is an interesting element to grievances while an arbitration award may
interpretation and application of the terms of a collective bargaining agreement in a manner
so as to
affect a considerable number of employees and situations, any individual award is ultimately
by the particular facts involved. Such is the case here.
John Merritt's absence from work on March 22, 1998 was indeed a condition beyond
control of the contractor, Sullivan Brothers. But that does not necessarily mean that the
performed on March 28, 1998 was a "Saturday make-up" day.
Merritt testified that the customer, Oscar Mayer, had requested that the ceiling
work not be performed during normal working hours. Given the nature of the work
the location (corporate offices), it is plausible that the customer would prefer this to be done
hours and on the weekend. Under cross-examination, Merritt acknowledged that he did not
personally hear the conversation between his coworker Monk and their supervisor Bill
which Kemnitz purportedly authorized the Saturday at time and one-half.
Kemnitz testified that it was his responsibility to schedule Merritt's hours and
that he had no agreement with Merritt regarding pay rate for March 28, and that he had held
discussions with Oscar Mayer about paying time and one-half for Saturday work. On
cross-examination, Kemnitz acknowledged that Monk had advised him that Oscar Mayer
wished the work
to be conducted outside normal hours, and that the crew had indeed worked this same job, at
and one-half, on February 28 and March 14, both Saturdays. This is consistent with
testimony that he and Monk had set a schedule of working on this job every other Saturday.
The collective bargaining agreement is clear and unambiguous in providing that
worked on Saturday" is paid at time and one-half "with the exception of
time worked on Saturday
make-up." (emphasis added). That is, if the work performed on Saturday is
not make-up, it is done
at time and one-half.
Based on the record evidence and the testimony, I conclude that the work performed on
March 28, 1998 was always to be performed on that date, precisely because it was a
Saturday. It was
not Merritt's absence on March 22 that caused the need for Merritt and Monk to work on
but the work itself. Consistent with their practice of working this job every other Saturday,
and Monk would have been on this job on March 28 regardless of whether Merritt was at
in court on March 22.
Accordingly, because the work on March 28, 1998 was not Saturday make-up, Merritt
entitled to time and one-half for the hours he worked on that date.
On the basis of the collective bargaining agreement, the record evidence and the
of the parties, it is my
1. That the grievance is sustained.
2. The employer shall make the grievant, John Merritt, whole, so that the hours
worked on March 28, 1998 are paid at the rate of time and one-half.
Dated at Madison, Wisconsin this 12th day of November, 1998.
Stuart Levitan /s/
Stuart Levitan, Arbitrator