BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION #43
J. W. PETERS & SONS, INC.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Andrea F. Hoeschen,
appearing on behalf of the Union.
Mr. Steve McCloskey, McCloskey & Associates, appearing
on behalf of the Company.
Teamsters Local Union #43, hereinafter referred to as the Union, and
J. W. Peters & Sons,
Inc., 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 undersigned
selected from a panel of arbitrators furnished by the Wisconsin Employment Relations
to hear and decide a grievance over the meaning and application of the terms of the
Hearing was held in Burlington, Wisconsin, on October 16, 1998. The hearing was
and the parties filed post-hearing briefs which were exchanged on December 21, 1998.
The basic facts underlying the grievance are not in dispute. The grievant took
Monday, December 1, 1997, to attend the Green Bay Minnesota Monday night
football game in
Minneapolis, Minnesota. The grievant assumed he had no vacation left and told his
he would not be at work Tuesday as he would be traveling back that day. The
grievant did not get paid for December 2, 1997, and he was not given holiday
pay for Thanksgiving
Day and the Friday after Thanksgiving, November 27 and 28, 1997, which are paid
the contract. The grievant was denied holiday pay because he did not work his regular
work day following the holiday. The grievant filed a grievance over the denial of holiday
asserting that December 1, 1997, was the regular scheduled work day following the holiday,
was on vacation, thereby meeting the qualifying requirements of the holiday provision. The
grievance was denied and appealed to the instant arbitration.
The parties stipulated to the following:
Did the Company violate the contract when it withheld Chad Albright's
holiday pay for Thanksgiving, 1997?
If so, what is the appropriate remedy?
Section 1. Effective upon signing of this contract, all employees who
completed probationary period (Article 4, Section 4), shall be paid eight (8) hours
pay at their straight time hourly rate of the previous day, in addition to their
compensation for work performed under Article 5, Section 3, if any, for the
following nine (9) holidays: New Year's Day, Employees Birthday, Memorial Day,
Fourth of July, Labor Day, Thanksgiving Day, Friday after Thanksgiving Day, the
last regular day before Christmas and Christmas Day.
In order to qualify for such holiday pay an employee must have
regular schedule work day which immediately precedes and follows the holiday,
unless the absence is mutually agreed to in writing.
The Union contends that the language of the agreement clearly entitled the grievant to
holiday pay. It points out that the agreement provides holiday pay where the employe
works the regular scheduled work day which immediately precedes and follows the
holiday. It notes
that the agreement also provides for an extra day of pay when a vacation and a holiday
It cites arbitration cases that held that employes on vacation during
July 4th were entitled to pay for
the holiday even though the employes reported a day or two late from vacation. It asserts
holiday pay provisions are designed to prevent the extension of a holiday but not a vacation.
The Union argues that the parties could have drafted language to require employes to
their scheduled work days before or after vacation to receive holiday pay but they did not. It
that they could have also drafted language requiring an employe to work his or her next
work day after a holiday rather than the next regular scheduled work day but did not. It
that the agreement requires the employes to work the next regular work day after a holiday
the absence is mutually agreed to in writing. It points out that the Company agreed to the
absence on December 1, 1997, and therefore the grievant met the requirements and the
cannot withhold his holiday pay.
The Union maintains that there is no past practice to support the Company's
of the holiday pay language. It observes the Company cited only two examples and the first
involved an employe who was absent the day after his birthday in 1995. It submits that the
did not work nor take vacation the regular work day following the holiday and it is factually
distinguishable from the instant case. The second case in 1994 is analogous to the instant
this isolated case was not known to the Union and one isolated case fails to establish any past
practice because it was not unequivocal, clearly enunciated and acted upon and readily
over a reasonable period of time as a fixed and established practice accepted by both parties.
In conclusion, the Union submits that the Company failed to demonstrate a past
withholding holiday pay where an employe extends a post-holiday vacation. It claims that
contract language must govern and the language does not allow the denial of holiday pay for
employe absent following an approved vacation after a holiday. It asks that the grievant be
holiday pay for Thanksgiving, 1997.
The Company contends that it followed the agreement as it has in the past. It asserts
the agreement is specific as to what is required to receive holiday pay and despite being
his supervisor that he would lose holiday pay, the grievant chose to miss his next scheduled
day. It submits that he could have taken another vacation day to cover his trip or he could
explained the circumstances and got a written excuse but chose to take the day off and force
Company to work a man short. It claims that the Union is trying to walk a fine line on
It notes that a work day is a day that work is performed by the employe and a scheduled day
is a day
an employe is expected to be to work.
The Company maintains that, in the past, it has not paid employes who have missed a
scheduled work day before or after a holiday. It observes that this has happened so seldom
everyone knows the requirement of working the first and last scheduled work day. It states
grievant was allowed vacation for Monday, December 1, 1997, but this did not change
requirement to work on Tuesday, December 2, 1997. It points out that the grievant
had access to
find out if he had vacation available and originally scheduled December 2, 1997, as
cancelled it and used that day later. It insists the grievant was aware of the consequences of
Tuesday off and he chose to do so and not worry about holiday pay. The Company admits
initially paid the grievant and later deducted it from his pay as pay periods are a week behind
the error was found in the normal course of events. It notes that the contract language has
the contract and understood for years and has not been changed in negotiations. It asserts
that it has
been violated in the same manner on two prior occasions and dealt with in the same manner
instant case. The Company reminds the arbitrator that he must rule on the language in the
and cannot change the language or the contract. It states the contract will be re-negotiated in
1999, and any suggestions the arbitrator may have regarding this language to make it more
understandable would be appreciated.
The precise language of the parties' agreement applied to the particular facts of a
ordinarily determines whether holiday pay should be awarded. See Elkouri & Elkouri,
Arbitration Works, (BNA 5th Ed.) at 1011-1012 wherein it is stated:
Typical of holiday pay provisions are the work requirements upon which such
pay is conditioned. Thus, in order for the employee to be eligible for holiday pay,
contracts commonly require both a stipulated minimum period of service and work
on designated days surrounding the holiday. In the latter regard, the contract may
require the employee to work his or her last scheduled day before and
his or her first
scheduled day after the holiday, or the last regularly scheduled day before
first regularly scheduled day after the holiday, or the last
scheduled workday before
and the first scheduled workday after the holiday, or the day before
and the day after
the holiday, or the day before or the day after the holiday, or the
workday of the plant before and after the holiday, or a specified number of workdays
during the period before and after the holiday. (Footnotes omitted)
Article 23 of the instant contract states as follows:
In order to qualify for such holiday pay an employee must have worked
regular schedule work day which immediately precedes and follows the holiday,
unless the absence is mutually agreed to in wiring. (Emphasis added)
In Interplastics Corp., 83 LA 612 (Ver Ploeg, 1984), the arbitrator interpreted very
similar language which read:
. . . provided he did work the regularly scheduled working days next preceding and
next following the holiday, unless he was absent drawing compensation under the
Company sick-pay plan or excused by Management.
In Interplastics, the employe took two days of vacation after Thanksgiving and then
not report on the next day which was not excused and his holiday pay was then deducted.
arbitrator found that the Company breached the contract in denying the grievant holiday pay
First, I am persuaded that we must look to the Company's next
work day, rather than an employee's individual scheduled work day, for two reasons.
First, the language of the contract itself refers to "the regularly scheduled
day." If the parties had intended that an employee's individual schedule determine
the definition of this key term, it would have been reasonable to define that provision
in more specific terms. This reasoning finds support in Elkouri and Elkouri's classic
treatise How Arbitration Works (BNA 1973). At page 693 the authors note:
The precise language used in the particular contract applied
to the facts of a given case ordinarily determines whether holiday pay
should be awarded. To illustrate, in the situation where the employee
had been in lay-off before and after a holiday, Arbitrator Clarence M.
Updegraff drew a distinction between (1) contract language requiring
the employee to work on his last scheduled day before and
scheduled day after the holiday, and (2) contract language requiring
the employee to work on the last scheduled day before and
scheduled day after the holiday. Hemp & Co., 37 LA 1010 (1962),
with many citations.
In the instant case, the language of the contract does not refer to "his or her" regular
work day, but refers to "the" regular schedule work day. Thus, it is the Company's rather
individual employe's next regular work day that must be worked and here the grievant was
on that day as he was on vacation. As noted by Arbitrator Ver Ploeg, the reason for
days' requirement is to prevent employes from stretching holidays and to assure a full work
on the days surrounding a holiday. She stated:
Thus, it is concern for the Company's overall work schedule which
focus of this particular provision. If the Company feels that its overall work
schedule is jeopardized by the absence of its employees, such as Brett Hansell, it has
a simple remedy it can simply deny the requested vacation leave.
The undersigned finds that Interplastics Corp., 83 LA 612 is almost identical to the
case and is persuasive.
The Union's arguments with respect to a holiday falling within a vacation period are
persuasive. The problem with the vacation exception in Article 23 is that it states "a
and the cases cited, Northwestern Steel & Wire Co., 93 LA 104 (Sembower, 1962) and
Streitmann Supreme Bakery of Cincinnati, 41 LA 621 (Saugee, 1963) do not involve the one
day of vacation taken by the grievant. Thus, this case is not about the vacation exception.
The Company asserted that its denial of the grievant's holiday pay was in accord with
practice. The Company argues that this happens so seldom that everyone knows the
but it may happen so seldom because employes do not want to take a day off without pay.
words, there may be other explanations of why it happens so infrequently. In the case of
Koenig, he was absent August 15, 1995, after taking his birthday holiday on the
14th (Ex. 6). This
case falls within the rule noted above and is not comparable to the instant case. The case of
Shilling is difficult to explain because it appears that he took vacation the week of
1994, and was absent Monday, September 12, 1994 (Ex. 5). It might be argued that
his case fell
within the vacation week exception but this one case is not sufficient to establish a past
understanding as to the interpretation of the contract especially where the language is as clear
For the above reasons, it is the undersigned's opinion that the grievant met the
eligibility requirements for holiday pay for Thanksgiving, 1997.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The Company violated the parties' agreement when it withheld Chad Albright's
for Thanksgiving, 1997, and it shall immediately make him whole by paying him for the two
it withheld for the Thanksgiving holidays in 1997.
Dated at Madison, Wisconsin, this 7th day of January, 1999.
Lionel L. Crowley /s/
Lionel L. Crowley, Arbitrator