BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
J.W. PETERS & SONS, INC.
TEAMSTERS LOCAL UNION NO. 43
(Area Wage Rate)
McCloskey and Associates, by Mr. Steve McCloskey, 3809
Vandan Road, Minneapolis, Minnesota
55345, appearing on behalf of the Company.
Goldberg, Previant, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Ms. Andrea F. Hoeschen, 1555
Rivercenter Drive, Suite 203, P.O. Box 12993, Milwaukee, Wisconsin 53212, appearing on
of the Union
J.W. Peters & Sons, Inc., hereinafter referred to as
the Company, and Teamsters Local Union
No. 43, hereinafter referred to as the Union, are parties to a collective bargaining agreement
provides for final and binding arbitration of grievances. Pursuant to a Request for
Wisconsin Employment Relations Commission appointed Edmond J. Bielarczyk, Jr., to
dispute over the wage rate of employes. Hearing on the matter was held on October 7, 1998
Burlington, Wisconsin. Post hearing arguments were received by the undersigned by
1998. Full consideration has been given to the evidence, testimony and arguments presented
rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
issue and agreed to leave framing of the issue to the undersigned. The undersigned frames
"Did the Company violate the parties' collective bargaining
agreement when it failed to pay
employes who performed work in a jurisdiction covered by another collective bargaining
agreement the area wage rate?"
"If yes, what is the appropriate remedy?"
. . .
SCOPE OF OPERATIONS AND RECOGNITION
The Employer recognizes and acknowledges that Teamsters,
Chauffeurs & Helpers Local Union No. 43 of
I.B.T.C.W. & H. of A. is the exclusive representative of employees employed as road
drivers for the
prestressed operations and any other operation requested by employer operating out of
Kenosha and Walworth Counties, Wisconsin, except employees employed in the production
maintenance and quarry and pit units of the Company, supervisors as defined in the Act,
all other employees.
. . .
MAINTENANCE OF STANDARDS
Section 1. The Employer agrees that all
of employment in his individual operation
relating to wages, hours of work, overtime differentials, and general working conditions shall
maintained at not lessthan the highest standards in effect at the time of the signing of this
Section 2. Employees
assigned to perform work covered by this Agreement within the
geographical jurisdiction of any Local Union affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, other than the Local Union
he is a member, shall receive all of
the benefits of the collective bargaining
agreement which prevails in the area in which his work
is performed. In no case shall this result in a reduction in wages, hours or working
conditions for the
. . .
The Company and the Union have for many years been parties to a collective
agreement which covers prestress road drivers employed by the by the Company. Drivers are
dispatched from the Company's Burlington, Wisconsin facility to deliver prestress concrete
to various sites in southeastern Wisconsin and northern Illinois. When drivers arrive at a
they may wait anywhere from fifteen (15) minutes to two (2) hours to have the product
At one time the Company had facilities in Illinois but no longer does. However, the
dispatched drivers from the Illinois facilities. On September 8, 1997 the Company hired
Knull was routinely assigned to take the Company's product to locations in northern Illinois
so at least once a week. During one trip to a job site in Waukegan, Illinois Knull was
members of Teamster Local 301 and was informed he should be receiving the standard wage
the Waukegan area. Knull than obtained of a copy of the collective bargaining agreement
to his business agent about the matter. His business agent, Tim Wagner, who has since
informed Knull it was his opinion the collective bargaining agreement required the Company
the area wage rate. Knull then wrote the instant grievance and it was signed by all employes
bargaining unit. On May 11, 1998 the grievance was filed with the Company. Thereafter it
processed to arbitration in accord with the parties' grievance procedure.
The Union contends the collective bargaining agreement requires the Company to pay
wage rate in effect in the jurisdiction where the driver's do their work. The Union argues
language went unnoticed in the collective bargaining agreement for many years until a new
questioned the rate he was being paid when working in Illinois. The Union also argues the
bargaining agreement is unambiguous and therefore the Company should be directed to
the contract in the future and should be ordered to properly compensate the employes for
in other Teamster jurisdictions going back two years prior to the grievance. The Union also
the Company cannot claim it was unaware of its obligation to pay higher wages for products
jurisdictions and points to the following letter in support of its position:
June 9, 1994
Mr. Varis Mittenberg
J.W. Peters & Sons, Inc.
34212 West Market Street
Burlington, WI 53105
RE: McCORMICK PLACE
Dear Mr. Mittenberg:
1. Recently we have had some problems with
deliveries being made to the job site by vehicles
with drivers not covered by the collective bargaining agreements.
2. You were furnished as a
part of your bid documents the following:
Volume I, 5. Form of Subcontrct Agreement including
A thru G.
Exhibit 'F' "Project Labor Agreement for Navy Pier and
Page 3, Paragraph 3 reads as follows: "Deliveries to the
project site or sites of
construction materials shall be made by employees covered by collective bargaining
agreements providing for the payment of the prevailing wage or subject to the
applicable state or federal laws providing for the payment of the prevailing wage."
3. Please comply with the provision of paragraph 2
above, which are a part of your
4. Before starting to move any materials on the job
site, please contact our field
superintendent, Mr. Joe Salerno.
CONTRACTORS, A JOINT VENTURE
A.R. Turpin, Jr. /s/
A.R. Turpin, Jr.
The Union argues it was undisputed that the Company assigns
employes to perform work in
areas outside of the Union's jurisdiction. The Union points out the employes are drivers and
work is delivering concrete. The Union asserts that the Company claim the employes
work at the location from which they are dispatched is a tortured interpretation of the English
language and even the Company's witnesses had trouble adhering to this definition. In
support of this
argument the Union points to the testimony of Richard Lewis, the Company's Human
Manager, who acknowledged he knew employes were doing work in Waukegan, Illinois and
acknowledged he knew Waukegan, Illinois is outside the Union's jurisdiction. The Union
to the testimony of Plant Manager Robert Ortscheid who testified employes perform some of
work in Illinois.
The Union also argues the collective bargaining agreement unambiguously requires
Company to pay the area standard wages for work done in other jurisdictions. The Union
language of the agreement does not speak to where the employes are dispatched from, as the
Company claimed at the hearing, but does speak to the performing of work in other
The Union also contends to obtain the Company's desired result the Undersigned
to strategically insert the term "dispatch" in Article 33. This result would render Article 33
meaningless as there is no possibility of employes being dispatched out of Illinois.
The Union further contends past practice cannot void unambiguous language. The
argues the language can not be clearer in that it requires the Company to pay employes the
standard wage rate. The Union acknowledges it is unfortunate employes did not take notice
right sooner, but stresses the right to the area standard wage rate is clearly spelled out. The
also points out the Company does not dispute that the Area Construction Agreement for Joint
Council 25 sets out the wages and benefits for work performed by Teamsters in northeastern
The Union would have the Undersigned sustain the grievance and direct to Company
comply with Article 33 in the future and to compensate the employes with two (2) years of
The Union points out the Company should have been paying these rates and that it would not
difficult to determine the backpay owed as employes are required to keep log books showing
destination and loads. The Union also argues not paying backpay would reward the
violating the collective bargaining agreement.
The Company points out it is a material supplier and not an independent trucker or
operating under the Davis Bacon Act. The Company delivers product to all types of projects
employes are on and off the site in a short period of time. Employes are not assigned to a
are not there on a full time basis. The Company also points out the Union did not dispute
average unloading time was between a half hour to a hour. The Company also points out
may go to two different sites or states in any given day. The Company also argues the
Place letter relied on by the Union is for area trades working on the project and directed at
Independent Owner Operators who may not be covered by a collective bargaining agreement
subcontract their services to a contractor or subcontractor.
The Company also argues the Milwaukee Building Trades Agreement the Union
at the hearing is a common major market area agreement. The Company contends the Union
demonstrate at the hearing the Company violated its agreement with employes covered by the
collective bargaining agreement with the Union. The Company asserts the Union has not
any evidence the collective bargaining agreement has been violated. The Company points
is a long standing practice of wages and benefits and asserts this practice has not been
Company also questions why after 40 years the of negotiating and 30 years under the Davis
Act the Union has raised this grievance.
The Company concludes by pointing out the Undersigned can not add to, modify or
the collective bargaining agreement. The Company asserts there is no place in the collective
bargaining agreement that states that prevailing wages or benefits other than those specified
collective bargaining agreement shall be paid to employes.
The County would have the undersigned deny the grievance.
Article 2 of the parties' collective bargaining agreement describes the jurisdiction of
as including Racine, Kenosha and Walworth Counties. Article 33 of the parties' collective
agreement clearly requires the Company to pay employes that perform work in a
jurisdiction covered by another Teamster collective bargaining agreement to receive the
the collective bargaining agreement which prevails in the area in which the work is being
The Company argument that where the employe is assigned the work, or dispatched from, is
controlling factor in determining where work is "performed" would, as the Union has pointed
render Article 33 meaningless. The work performed by the Company's employes is driving.
drive outside the jurisdiction of the Union into an area covered by another union's collective
bargaining agreement they are performing their job duty in the other union's area of
Undersigned therefore concludes the language of Article 33 is clear and unambiguous and
Company's failure to pay the higher wage rate complained of herein is a violation of the
The Company has also asserted there is a controlling past practice concerning wages
benefits. However, it presented no evidence that the Union had agreed to this practice nor is
any evidence the Union was aware prior to Knull's initiation of talks on this matter that the
Company's actions were not in compliance with Article 33. For a practice to overcome clear
language there would have to be evidence the Union was aware of the disparity in wages and
mutually agreed to ignore the provisions of Article 33. The fact that the provisions of
Article 33 have
never been asserted by the Union is not in and of itself a demonstration that the Union had
waive the clear language of Article 33. Therefore, the undersigned concludes there is
evidence to conclude there is a past practice which overrides the clear language of Article
The undersigned also notes that nowhere in Article 33 does it require the Company to
out if there is a higher wage rate in a different jurisdiction covered by a different Teamster
bargaining agreement. While the Company may have entered into projects which require it
the prevailing wage rate there is no evidence the Company willfully violated the parties'
bargaining agreement. The undersigned therefore concludes that there is no merit to the
that the Company's actions mandate a directive that it pay two (2) years of backpay. The
undersigned notes the testimony of Steward Glen Giescke that he did not know why the
filed the grievance sooner, that he was paid well and did not look for more money, and that
never checked to determine if Article 33 was being violated. Thus, absent a showing that the
Company willfully violated Article 33 the Undersigned finds no merit to the Union's claim
remedy for violating Article 33 should include two (2) years of backpay.
Based upon the above and foregoing the Undersigned concludes the Company
33 when it required employes to perform driving duties in jurisdictions having a higher wage
it did not pay the higher wage rate. The Undersigned directs the Company to cease violating
33 and to make employes whole for lost wages dating back to the filing of the grievance,
1998. The Undersigned will retain jurisdiction of this matter for sixty (60) days for the sole
of resolving any matters concerning implementation of this award.
The Company violated Article 33 of the parties' collective bargaining agreement
to pay employes who performed work in a jurisdiction covered by another collective
agreement the area wage rate. The Company is directed to make employes whole for lost
May 11, 1998 and is directed to cease violating the collective bargaining agreement.
Dated at Madison, Wisconsin, this 23rd day of December, 1998.
Edmond J. Bielarczyk, Jr., Examiner