BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN COUNTY PLEASANT VIEW HOME
LOCAL 1162, AFSCME COUNCIL 40,
GREEN COUNTY (PLEASANT VIEW HOME)
(Sunday Overtime Grievance)
Mr. Thomas Larsen, Staff Representative, AFSCME Council
40, appearing on behalf of the Union.
Mr. William Morgan, Corporation Counsel, Green County,
appearing on behalf of the County.
The above-captioned parties, hereinafter the Union and County or Employer,
were parties to a collective bargaining agreement which provided for final and binding
grievances. Pursuant to a request for arbitration, the Wisconsin Employment Relations
appointed the undersigned to decide a grievance. A hearing, which was not transcribed, was
June 18, 1999, in Monroe, Wisconsin. The County filed a brief at the hearing. The record
on June 21, 1999 when the Union notified the undersigned that it was not going to file a
on the entire record, the undersigned issues the following Award.
The parties were unable to stipulate to the issue(s) to be decided in this case. The
framed the issue as follows:
Did the Employer violate the collective bargaining agreement and
past practice by discontinuing
the paying of one and one-half times the Sunday premium rate for overtime hours worked on
Sundays? If so, what is the appropriate remedy?
The County framed the issues as follows:
Is the contract language in question (Section 22.01,
Overtime-Sunday Pay) so clear on its face
so as to be unambiguous such that past practice is irrelevant?
In the alternative, is reformation of the
contract an appropriate remedy where the writing does
not accurately reflect the intent of the agreement of the parties?
Having reviewed the record and the arguments in this case, the undersigned finds the
appropriate for purposes of deciding this dispute:
Are employes who work more than eight hours on Sunday
contractually entitled to be paid at the
rate of triple time and one-half for the time over eight hours?
The parties' 1997-98 collective bargaining agreement contained the following
22.01 Time and one-half (1 ½) shall be paid after
eight (8) hours in any one day or forty (40) hours
in any one week, whichever is greater. All Sundays worked shall be paid for at the double
time rate for employees working three days or more a week. In order to qualify for the
double time rate, it is provided that the regular employees must work their regular scheduled
work day immediately preceding and following the Sunday. Sunday pay shall be paid for all
work performed during a twenty-four (24) hour period commencing 10:30 pm on Saturday
and ending 10:30 pm on Sunday, except for maintenance where the twenty-
four (24) period would commence at their
usual starting time of 7:00 pm on Saturday.
Employees working the 2:30 pm to 11:00 pm shift on Sunday shall be entitled to
for that entire shift.
. . .
MAINTENANCE OF STANDARDS
28.01 The Employer agrees that all conditions of
employment relating to wages, hours of work,
overtime differentials and general working conditions shall be maintained at not less than the
highest minimum standards in effect at the time of the signing of this Agreement, and
conditions of employment shall be improved wherever specific provisions for improvement
are made elsewhere in this Agreement.
It is agreed that the provision of this Section shall not apply to
inadvertent or bona fide errors
made by the Employer or the Union in applying the terms and conditions of this Agreement
error is corrected within ninety (90) days from the date of error.
The County and the Union have been parties to a series of collective bargaining
Their most recent agreement was for 1997-98. They are in the process of negotiating a
to that agreement. They had not reached agreement on a successor contract as of the date of
One of the provisions in the parties' last labor agreement is Sec. 22.01 which is
"Overtime". That section deals with two separate matters: overtime and the Sunday pay
provides that overtime is paid at the rate of time and one-half for work performed after eight
in one day or 40 hours in any one week. It also provides that the Sunday pay rate is double
This case involves a change in the way the County calculates certain Sunday pay at
Specifically, it involves the pay which employes who work more than eight hours on Sunday
for the time over eight hours.
The record indicates that for the last 20 years, the Home has been calculating Sunday
follows. The first eight hours that an employe worked were paid at the double time rate.
occasion, employes at the Home worked more than eight hours on a Sunday. When this
they were paid double time for the first eight hours, and triple time and one-half for any time
eight hours. This latter figure (i.e. triple time and one-half) came from adding the overtime
time and one-half to the Sunday double time rate. In other words, the overtime rate and the
rate were compounded/pyramided.
The Home's Accounting Department was aware of the foregoing, but the County's
Accounting Department was not.
On December 17, 1998, the parties had a bargaining session. One of the topics
day were ways to reduce the Home's overtime costs. During this discussion, Council 40
Representative Thomas Larsen told the County's bargaining team that he had just learned that
Home was making a mistake in computing the pay of those employes who worked more than
hours on Sundays, and if this mistake was corrected, it would save the County money.
Larsen told the County's bargaining team that when an employee worked more than eight
a Sunday, the Home was mistakenly pyramiding time and one-half on top of the Sunday
rate, for an effective rate of triple time and one-half. The spokesman for the County's
team, Attorney Howard Goldberg, indicated he personally was unaware of the pyramiding of
pay at the Home and that if such a practice existed, it was a mistake.
Following this meeting, the County investigated the matter and determined that the
at the Home was indeed to pay triple time and one-half for hours worked after eight on
On Sunday, January 3, 1999, several bargaining unit employes worked more than
On January 6, 1999, the following memo was posted at the Home:
RE: Sunday Double Time Accounting
Dear Pleasant View Nursing Home
Please be advised that henceforth all hours
worked on Sundays will be paid in strict accordance
to the contract. In other words, there will not be any pyramiding of overtime upon double
there has been in the past. This was brought up in our recent round of negotiations and
acknowledged by the
Union through Mr. Larsen that this was not
what was intended by Section 22.01 of the contract
between Green County and the Green County Pleasant View Nursing Home employees.
If you should have any questions or
concerns, please feel free to contact Nursing Home
Administration or my office.
Very truly yours,
William E. Morgan /s/
William E. Morgan
Green County Corporation Counsel
State Bar No. 01019538
With this notice, the County intended to discontinue the existing Sunday pay practice at
The County's announcement referenced above was given without prior notice to the
and without the Union's agreement.
The employes who worked more than eight hours on January 3, 1999 were not paid
compounded rate (i.e. triple time and one-half) for the time over eight hours, nor have any
employes been paid at that compounded rate subsequently.
The Union grieved the County's termination of the Sunday pay practice. The County
the grievance and it was appealed to arbitration.
This dispute involves whether employes who work more than eight hours on Sunday
contractually entitled to be paid at the rate of triple time and one-half for the time over eight
The Union contends that they are, while the County disputes that contention.
In resolving this question, I will review both the applicable contract language and an
past practice. They will be reviewed in the order just listed.
The applicable contract language is found in Article 22, Sec. 22.01. As was noted in
FACTS section, Section 22.01 deals with two separate
matters: overtime and the Sunday pay rate.
The first sentence of that section provides that overtime is paid at the rate of time
and one-half for work performed after eight hours in one day or 40 hours in any one
second sentence of that section then goes on to provide that the pay rate for Sunday work for
employes who work three days or more a week is double time. The next three sentences go
set certain qualifications to qualify for the double time rate specified in the second sentence.
qualifications need not be reviewed here because they are not germane to this dispute.
Since this dispute involves Sunday pay, it is the second sentence of Sec. 22.01 which
dispositive here not the first sentence of that section. The second sentence provides
Sundays worked shall be paid at the double time rate. . ." In very plain, clear and
this sentence sets a single pay rate for "all" work performed on Sundays by employes who
or more days per week, namely double time. Since the Sunday pay rate applies to "all"
performed on that day, it does not matter if the employe works one hour or twelve hours
rate for all hours worked that day is double time. Thus, even if an employe works more
hours on a Sunday, they still do not receive anything other than double time. Specifically,
not contractually entitled to receive time and one-half (i.e. the regular overtime rate) on top
Sunday double time rate. It therefore follows then that Sec. 22.01 neither provides for, nor
the compounding or pyramiding of the regular overtime rate of time and one-half on top of
Sunday double time rate.
Notwithstanding the contract language just reviewed, the Union contends that
work more than eight hours on a Sunday are nevertheless entitled to be paid more than
for those hours because of a past practice concerning same. For its part, the County does
the existence of such a practice. It acknowledges that for many years, employes at the Home
have worked more than eight hours on Sunday were paid at the rate of triple time and
the time over eight hours. Given the foregoing, there is no question that a long-standing
exists at the Home of paying employes who work more than eight hours on Sunday at triple
one-half for the time over eight hours.
Past practice is a form of evidence which is commonly used and applied in contract
interpretation cases. The rationale underlying its use is that the manner in which the parties
carried out the terms of their agreement in the past is indicative of the interpretation that
given to the contract. Said another way, the actual practice under an agreement may yield
evidence of what a particular provision means. Arbitrators traditionally look at past practice
the contract language is ambiguous, or when the contract is silent on a given point. In the
situation (i.e. where the language is ambiguous, indefinite or capable of different meanings),
practice is viewed as the binding interpretation the parties themselves have given to the
In the latter situation (i.e. where the contract is silent on a given matter), the past practice
binding upon the parties if it is
unequivocal, clearly enunciated and acted upon, and readily ascertainable over a
of time as a fixed and established practice accepted by both parties.
In this case, neither of the situations referenced above is present. Specifically, the
is not silent on the matter of Sunday pay, nor is the contract language contained in Sec.
ambiguous, indefinite or capable of different meanings. Instead, the situation present here is
there is contract language in Sec. 22.01 which is directly on point, and that language is clear
unambiguous in providing that so long as the employe meets certain qualifications, "all"
is performed on Sundays is paid at the rate of double time.
It is a generally accepted principle of contract interpretation that contract language
clear and unambiguous outweighs or trumps a past practice. Even a well-established and
long-standing practice cannot be used to give meaning to, or countervail, a provision which
is clear and
unambiguous. When a conflict exists between the clear and unambiguous language of the
and a long-standing past practice, arbitrators usually follow the contract, and not the past
In accordance with that generally-accepted view, the undersigned holds likewise. In this
practice clearly conflicts with the language in Sec. 22.01 because that section does not
time and one-half for those hours; instead, it only requires that employes receive double time
hours. Thus, in this case, the language of Sec. 22.01 prevails, not the conflicting practice.
Attention is now turned to the Union's argument concerning the Maintenance of
clause (Sec. 28.01). That clause provides that "all conditions of employment relating to
.overtime differential. . . shall be maintained at not less than the highest minimum standards
at the time of the signing of the agreement. . ." The Union contends that when the County
its January 6, 1999 notice, it violated that clause. I disagree. The second paragraph of the
Maintenance of Standards clause then goes on to make an exception for "inadvertent or bona
errors made by the Employer or the Union in applying the terms and conditions of the
. ." The record evidence indicates that the Sunday pay practice that developed at the Home
bona fide error. The Maintenance of Standards clause then goes on to provide that when
Employer or the Union makes an inadvertent or bona fide error which it wants to correct, it
so. All it has to do is correct the error within a certain specified time period, namely 90
County did so here. Its January 6, 1999 memo put all bargaining unit employes on notice
previous practice of paying triple time and one-half for hours over eight on a Sunday had
eliminated and that the County was not going to pay employes triple time and one-half for
Sunday hours any more. Given the foregoing, I find that the County complied with its
under the Maintenance of Standards clause because it timely corrected the error that had
the instant practice.
Finally, it is noted that some arbitrators have found that a well-established past
does not have any basis in the written contract is still not subject to unilateral termination
term of a contract, but is subject to termination only at the end of a contract. Even if the
were to have so found here, it would not matter because the parties' labor agreement expired
December 31, 1998, and the County posted its notice terminating the Sunday pay practice
namely on January 6, 1999. That being so, the Sunday pay practice has been terminated.
Any matter which has not been addressed in this discussion is deemed to lack
to warrant individual attention.
In light of the above, it is my
That employes who work more than eight hours on Sunday are not contractually
be paid at the rate of triple time and one-half for the time over eight hours. Therefore, the
Dated at Madison, Wisconsin this 26th day of August, 1999.
Raleigh Jones, Arbitrator