BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE AND SOUTHERN WISCONSIN
DISTRICT COUNCIL OF CARPENTERS
OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, LOCAL 39
(Betty Garwell Grievance)
Mr. Matthew Robbins, Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, S.C., Attorneys
at Law, appeared on behalf of the Carpenters.
Mr. John Peterson, Business Manager, OPEIU Local 39,
appeared on behalf of OPEIU Local 39.
The above-captioned parties, hereinafter the Carpenters and OPEIU Local 39, are
a collective bargaining agreement which provides for final and binding arbitration of
Pursuant to a request for arbitration, the Wisconsin Employment Relations Commission
the undersigned to decide a grievance. A hearing, which was not transcribed, was held on
22, 1998, in Madison, Wisconsin. After the hearing, the parties filed briefs, whereupon the
was closed November 11, 1998. Based on the entire record, the undersigned issues the
The parties were unable to stipulate to the issue to be decided in this case. OPEIU
the issue as follows:
Did the Employer properly compensate the grievant, Betty Garwell, for her
attendance at a training session held May 1, 1998, in Chicago, Illinois? If not, what
is the appropriate remedy?
The Carpenters framed the issue as follows:
Did the Employer violate the collective bargaining agreement by its payment to
Betty Garwell for May 1, 1998?
Having reviewed the record and arguments in this case, the undersigned finds the
Carpenters' proposed issue appropriate for purposes of deciding this dispute. Consequently,
Carpenters' proposed issue will be decided herein.
The parties' 1996-99 collective bargaining agreement contains the following pertinent
. . .
Section 3. Any Employee whose regular hours are eight (8) hours per day shall
receive time and one-half for hours worked in excess of eight (8) hours per day.
Section 4. For any work performed on Saturdays, Sundays, Holidays and for the
tenth (10th) hour and over in excess of the regular work day hours shall be
compensated at double time.
The Employer (Carpenters) is a labor union which represents carpenters in the
of Wisconsin. Its main office is in Milwaukee and a branch office is in Madison. The
employes of the Employer at both offices are represented by the OPEIU: the two clericals in
Madison office are represented by Local 39 and the five clericals in the Milwaukee office are
represented by Local 9.
In the spring of 1998, the International Union decided to offer a one-day computer
seminar. This training seminar was subsequently scheduled for May 1, 1998 in a Chicago
The District Councils in the Chicago region were not required to send employes but could if
wanted. Attendance at this training seminar was voluntary.
The Employer's Business Manager (in Milwaukee) initially decided to send just one
employe from the Milwaukee office to the seminar with the intention that that employe would
provide the other clerical employes with the information learned at the seminar. The
Manager later changed his position and decided to offer all employes at the Milwaukee and
offices the opportunity to attend the seminar if they so wished. The Employer's Assistant
Manager (Greg Sefcik), who is in charge of the Madison office, then offered both Madison
employes the opportunity to go to the seminar. Betty Garwell indicated she wanted to attend
seminar while Barb Helsel indicated she did not. Later, Helsel changed her mind and
she did want to go to the seminar. Sefcik then made additional arrangements so that there
for Helsel at the seminar.
On April 30, 1998, Sefcik offered both Garwell and Helsel a ride to Chicago for the
Both accepted this offer. Garwell lives in Brodhead, approximately 37 miles southwest of
so arrangements were made for Garwell to meet Sefcik in Janesville near the interstate.
On May 1, 1998, Sefcik picked up Helsel at her home in the Madison area at 5:45
then drove to Janesville where he picked up Garwell at the pre-set site at 6:45 a.m. He then
to the Chicago suburb where the seminar was held. The seminar lasted eight hours and
5:30 p.m. Afterwards, the same three Madison office employes returned to Wisconsin in
car. Sefcik dropped off Garwell at her car in Janesville at 6:50 p.m. Sefcik then drove back
Madison and dropped off Helsel at her home.
The Employer subsequently paid all the clerical employes who attended the seminar
those from Milwaukee and Madison) eight hours of straight time for the time they spent at
seminar. The Employer also paid those same employes three hours of overtime at time and
for the day.
Garwell grieved the Employer's overtime computation. She contends she is entitled
and three-quarter hours of overtime for the day, not three hours. Garwell was the only
either office who grieved the Employer's overtime payment.
Garwell testified she has previously gone to Milwaukee for training sessions and been
overtime "several times" for her travel time. Just one instance though was documented in
record. In that instance, Garwell was paid one and three-quarter hours of overtime in
1996, for travelling to and from Milwaukee. It is unclear from the record whether this
training session was mandatory or voluntary, but it appears to have been mandatory.
The clericals in the Employer's Madison office do not usually work overtime beyond
40-hour workweek. Other than the instant case, the only instance where overtime was paid
documented in the record is the September, 1996 incident just referenced.
POSITIONS OF THE PARTIES
The Union contends the Employer did not properly compensate the grievant for the
spent travelling to and from a training session held on May 1, 1998 in Chicago. According
Union, the grievant is owed three and three-quarter hours of overtime for the day, not the
which the Employer has paid. It makes the following arguments to support this contention.
the Union avers that the training session in Chicago was not voluntary, but mandatory.
Union contends that travel time on a special one-day assignment to another city is
To support this contention, it cites a portion of the Wisconsin Department of Workforce
Development Administrative Code. As the Union sees it, Garwell's travel time on May 1,
should qualify as compensable work time under state and/or federal law. Third, the Union
that the Employer has paid employes overtime before for travelling to and from a training
According to the Union, this has created a past practice which should be applied here. In
remedy this contractual breach, the Union requests that the grievant be made whole for the
overtime. The Union suggests two possible overtime calculations. The first is this: if the
is found entitled to time and one-half for the time in question, then she is owed $17.39. The
is this: if the grievant is found entitled to double time for the time in question, then she is
The Employer contends its payment to Garwell for May 1, 1998 did not violate the
agreement. It makes the following arguments to support this contention. First, the
that Garwell's travel time is not compensable under the contract. According to the
nothing in the contractual overtime provision requires it to pay an employe for travelling to a
voluntary training seminar. It notes in this regard that it does not pay Garwell for her travel
between her home and her work site in Madison. It contends that the trip to Chicago should
any different. Second, the Employer contends that Garwell's travel time to and from
Chicago is not
compensable under the Fair Labor Standards Act (FLSA) either. It cites the case of Fox v.
Telephone Co. of Wisconsin, 85 Wis. 2d 698 (1978) to support this proposition. Third, in
response to the Union's contention that a past practice exists governing payment for travel
Employer disputes the existence of same. It argues that the one instance documented in the
where Garwell received overtime for her travel time simply does not establish a binding past
practice. The Employer therefore requests that the grievance be denied.
At issue here is the whether the Employer's payment to Garwell for May 1, 1998,
the labor agreement. The Union contends that it does while the Employer disputes that
In contract interpretation cases such as this, I normally focus attention first on the
language and then, if necessary, on the evidence external to the agreement such as an alleged
practice. In this case though, I have decided to structure the discussion so that this normal
reversed. Thus, I will address the alleged past practice before looking at the contract
reason for doing so is this: if I address the contract language first and find it to be clear and
unambiguous, there would be no need to look at any evidence external to the agreement (i.e.
alleged past practice) for guidance in resolving this contract interpretation dispute. Were this
happen, the case could be decided without any reference whatsoever to the alleged past
The problem with this approach is that the Union sees this case, in part, as a past practice
Thus, if I were to decide this case without reviewing the alleged past practice, I would not
addressed one of the Union's main contentions. I have therefore decided to use this unique
structural format and review the Union's past practice contention in order to complete the
Past practice is a form of evidence commonly used or applied to clarify ambiguous
language. The rationale underlying its use is that the manner in which the parties have
the terms of their agreement in the past is indicative of the interpretation that should be given
contract. Said another way, the actual practice under an agreement may yield reliable
what a particular provision means. In order to be binding on both sides, an alleged past
must be the mutually understood and accepted way of doing things over an extended period
Additionally, it must be understood by the parties that there is an obligation to continue
this way in the future.
That said, the focus turns to whether the Union established the existence of a practice
governing payment for travel time. To support its contention that a practice exists, the
on the testimony of its sole witness, Garwell. She testified she has been paid overtime for
time to Milwaukee "several times". Just one instance though was documented in the record
overtime was paid to her for her travel time. In that instance, Garwell was paid one and
three-quarter hours of overtime in September, 1996, for travelling to and from Milwaukee
for a training
Based on the following rationale, I find that what was just referenced does not
past practice which is entitled to contractual enforcement. To begin with, while Garwell
that she had been paid overtime for her travel time "several times", the only specific instance
was established at the hearing was the one which occurred in September, 1996. Thus, just
instance was established. It is a generally accepted arbitral principle that a single instance is
insufficient to create a past practice which supplements the labor agreement. Moreover,
that, it is unclear whether the training that occurred in September, 1996, was mandatory or
voluntary. In the context of this case, the distinction between mandatory and voluntary
important because employers sometimes pay travel time for the former (i.e. mandatory
not for the latter (i.e. voluntary training). That certainly is the position of the Employer
namely that it does not have to pay overtime for travel
time for voluntary training. Notwithstanding the grievant's contention to the contrary,
at issue here was voluntary. This point is conclusively established by the fact that Garwell's
co-worker, Helsel, initially decided not to go to the training session. If the training session
mandatory, she would not have had a choice she would have had to go. The fact
that she had a
choice proves that the May 1, 1998 training session in Chicago was voluntary. If the Union
established that the September, 1996 training session which Garwell attended was voluntary,
that training (and how travel time for it was paid) would certainly be relevant here.
Union did not prove that. In fact, it appears from the record that the training on that date
voluntary, but mandatory. That being so, the training involved herein has not been shown to
identical to the training where the Employer once paid Garwell for her travel time. This
difference means that just because the Employer paid Garwell for her travel time to a
session in September, 1996 does not mean that the Employer had to do so here. Again, this
because the training involved in this instance (i.e. voluntary training) has not been shown to
same as the training involved in the September, 1996, instance. Given the foregoing, I find
enforceable past practice exists concerning the payment of overtime for travel time.
Having so found, attention is turned to the pertinent contract language. The contract
language applicable here is Article 8, Sections 3 and 4. Section 3 provides that "any
regular hours are eight (8) hours per day shall receive time and one-half for hours worked in
of eight (8) hours per day." Section 4 provides that "for any work performed on Saturdays,
Holidays and for the tenth (10th) hour and over in excess of the regular
workday hours shall be
compensated at double time." Under Section 3, overtime is paid at the rate of time and
while under Section 4 overtime is paid at double time. The plain meaning of Section 3 is
and one-half is paid for "hours worked in excess of eight hours per day." Similarly, the
meaning of Section 4 is that double time is paid for "work performed" on weekends,
for the 10th hour and over. Neither of the overtime provisions just
referenced specify that travel time
qualifies as time worked for purposes of determining overtime.
The overtime language will now be applied to the instant facts. May 1, 1998 was a
for Garwell and the others who went to the training seminar. That day they travelled to
sat through the seminar all day, and then travelled home. The travel time was at least two
each way. There is no dispute that the time at the seminar itself qualifies as work. What is
is whether the travel time involved qualifies as "work" or "hours worked" for purposes of
determining overtime. I find it does not for the following reasons. To begin with, it is
noted at the
outset that there can potentially be different answers to this question in different legal
example, if Sefcik's car had been involved in an accident on the way to or from Chicago,
someone had been injured, the State Workers' Compensation Division would probably
the travel time involved was work-related. That said, this arbitrator is not applying the State
Workers' Compensation law herein.
Instead, I am applying the labor agreement. The contractual overtime provision does
that travel time qualifies as "work" or "hours worked" for purposes of determining
overtime. If the
parties had intended that, they could have said so. They did not. Second, both Sections 3
envision that the time in excess of the employe's regular work hours involve work. Insofar
record shows, Garwell did not do anything to benefit the Employer while she was a
Sefcik's car that day. Specifically, she did not do any "work" while she was in the car
Third, it is noted that Garwell travels each day from her home in Brodhead to her work site
Madison. She has done so for many years. Historically, her travel time has not been
work time or compensable time. Thus, she is not paid for travelling between her home and
site. On May 1, 1998, the location of her work site changed for one day from Madison to
While it certainly took her longer that day to get to her work site than it normally does, that
does not alter the basic principle just noted that Garwell is not paid for travelling between
and her work site. Given the foregoing, it is held that Garwell's travel time on May 1, 1998
from Chicago does not qualify as "work" or "hours worked" for the purposes of determining
overtime. This finding means that Garwell did not work more than eight hours on that day,
overtime compensation was not required to be paid to her. The fact that the Employer
chose to pay all the clerical employes who went to the seminar three hours of overtime pay
day does not change this result.
Attention is now turned to the Union's contention that the Employer's actions here
state and/or federal wage and hour laws governing overtime. Assuming for the sake of
that the Employer's actions here did violate one of those laws, the undersigned is not
to enforce those laws and remedy same. This is because my authority is limited to
labor agreement and resolving questions of contractual rights. Any alleged statutory
separate and distinct from an alleged contractual violation. Consequently, nothing in this
should be construed as a ruling on state and/or federal wage and hour laws governing
In light of the above, I issue the following
That the Employer did not violate the collective bargaining agreement by its payment
Betty Garwell for May 1, 1998. Therefore, the grievance is denied.
Dated at Madison, Wisconsin this 28th day of January, 1999.
Raleigh Jones /s/
Raleigh Jones, Arbitrator