BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL 75
LEICHT TRANSFER AND STORAGE
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., P.O. Box 12993,
1555 North Rivercenter Drive, Suite 202, Milwaukee, Wisconsin, by Ms. Andrea
F. Hoeschen, on behalf of the Union.
Davis & Kuelthau, S.C., 414 East Walnut Street, Suite 240, Green Bay, Wisconsin, by
Mr. Dennis W. Rader, on behalf of the Company.
The above-captioned parties, herein "Union" and "Company", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Green Bay, Wisconsin, on December 17, 1999. The hearing was transcribed. The parties
agreed that I should retain my jurisdiction if the grievance is sustained.
Subsequent to the close of the hearing, the Union moved to introduce new evidence
to the Company's December 22, 1999, unilateral transfer of grievant Mark Allen from
to a forklift operator's position in warehouse 72 and its assignment of a dock manager to
70. Over the Company's objection, I received that evidence. Thereafter, both parties filed
reply briefs that were received by May 16, 2000.
Based upon the entire record and arguments of the parties, I issue the following
The parties agreed to the following issue:
Did the Company violate the contract when it refused to pay
grievant Mark Allen foreman's pay
and, if so, what is the appropriate remedy?
The Company operates a number of warehouses in Green Bay, Wisconsin, including
warehouses 70, 71 and 72. The dispute here centers on whether grievant Allen should have
foreman's pay when he worked at warehouse 70, a new building that was opened up in 1999.
Randy Carpiaux, now retired, served as the working foreman in Warehouse 70 from
1999 until May 28, 1999. (Unless otherwise stated, all dates herein refer to 1999).
foreman after he successfully bid for the following job posting (Union Exhibit 1):
. . .
This posting is for a foreman who will be
assigned to Warehouse #70, Packerland Drive, and will
perform all duties associated with that location.
This bid will be awarded to the senior qualified warehouse person
signing below. The company
shall retain the right to qualify, which shall include testing candidates on the skills necessary
perform the job.
The successful bidder will be paid a 75 cent ($.75) per hour
premium in addition to any shift
differential. Shift hours may vary.
There is no six-month requirement to work in this
This posting will be removed at 8:00 a.m. on Tuesday, March 23,
1999, and will become
effective as soon as possible thereafter.
. . .
Carpiaux testified that he saw a similar posting in warehouse 70 several weeks before
As a foreman, he received an additional 75 cents an hour pursuant to
Article XV of the
contract. He testified that he was responsible for loading and unloading trucks; for preparing
report" on how much empty space remained in the warehouse; for answering his cell phone
a day to talk to customers; for meeting customers about once a week; for maintaining time
and other paperwork, and for sometimes directing another employe.
On cross-examination, he testified that there was no scanning equipment in
when he worked there; that he never worked with bar codes; that none of his paperwork was
computerized when he worked there; that only foremen carried cell phones; and that he never
in charge of determining which trucks went to warehouse 70 or to any other location.
Grievant Allen who has been a warehouse employe for about 30 years and
worked in warehouse 66 - bid for, and received, the following posting even though it
another warehouse location:
. . .
P & G CONTINUOUS OPERATION
This posting is for four additional forklift operators, one per
crew, to work at Donald Street in
a continuous operation for the new P & G account.
Two forklift operators are needed for each of the following:
DAYS 6:00 a.m. to 6:00 p.m.
NIGHTS 6:00 p.m. to 6:00 a.m.
The night shift shall be paid a 50 cent
($.50) per hour minimum.
All employees, including those currently on probation, are eligible
to post for these positions.
The bids will be awarded to the four senior qualified warehouse persons signing under each
DAYS or NIGHTS. The company shall retain the right to qualify.
There is no six-month requirement for forklift
operators accepting these positions.
This posting will be removed at 8:00 a.m. on Tuesday, April 20,
1999. Training for the P&G
operation will begin as soon as possible thereafter.
. . .
Allen began working in warehouse 70 on June 1 and testified that he is responsible for
"all activities at warehouse 70" by knowing what doors to send trucks to, by making sure
loaded properly, and by preparing all the necessary paperwork. He added that he works with
employe about half of his time; that he now uses a scanner to
replace the paperwork he formerly performed; that he uses a cell phone to contact
that he sometimes deals directly with customers in warehouse 70; that he faxes over bills to
manager or customer relations; that he must call the dock manager at warehouse 71 or 72
a truck is unloaded; that he assigns seal numbers to every truck; and that, "These are all jobs
performed at the other location by foremen or dock managers."
He also said that he did not receive foreman's pay before computers were installed at
warehouse 70; that he previously received foreman's pay for about five years at other
where he worked; that he talks to the dock managers about 25 times a day; and that he does
"bug reports" which keep track of vehicle maintenance.
On cross-examination, he stated that his work at warehouse 70 is "Very parallel, yes"
work at warehouse 66; that unlike warehouse 66, he is not responsible for railroad contacts
warehouse 70; that he did not use a computerized system at warehouse 66; that only foremen
a cell phone on a full-time basis; that only dock managers or foremen assign seals; that when
served as foreman in warehouse 66, he was not responsible for coordinating loads or trucks
warehouses 66 and 97; that even though dock managers can easily assign trucks to particular
warehouse doors, "he doesn't do it"; that the Company's continuous operation first came into
in April; that no other warehouses are computerized the way warehouses 70-72 are
and that no locations have both a dock manager and foreman.
Steven Banker, who supervises the Company's operations, testified that the
"working alone" policy (Company Exhibit 8), requires all employes like Allen, who often
to carry a cell phone; that bargaining unit employes carry phones for that reason; that
where Allen formerly worked, operates differently than warehouse 70 in part because it uses
paperwork, rather than a computerized system; and that a prior grievance (Company Exhibit
filed over the elimination of a foreman's position in warehouse 85, but that it was
dropped. On cross-examination, he said that warehouse 70 is one of the biggest warehouses
it has three telephones.
Customer Service Manager Marianne Baeb testified that dock managers are only
warehouses 70, 71 and 72, which are devoted exclusively to Procter and Gamble, one of the
Company's biggest customers; that the dock managers there assign the trucks "to where he
load the product"; that when the Company implemented its continuous operation in April for
Procter and Gamble operations, it went from 6 to 8 dock managers; that all three warehouses
comptuers so operators can scan the product and produce a bill of ladding in the dock
office; that the computers in warehouse 70 went online in the first part of July, 1999; and
Carpiaux's former foreman position was not posted when he retired in May because "the
warehouse was full of P & G" products and because all activity was
therefore directed through warehouses 71 and 72 which use the identical computer
system as the one
now found in warehouse 70. She added that "the distribution of the work assignments that is
manager only. And coordinating all documents with customer service." She added that no
used for shuttle loads and that but for the first four items listed therein, forklift operators
of the duties in the dock manager's position profile (Joint Exhibit 15).
On cross-examination, she stated that there is no job
for the foreman's position
and that dock manager functions are never performed at warehouse 70.
POSITIONS OF THE PARTIES
The Union claims that the Company under Article 4, the Maintenance of Standards
"had no right" to eliminate the foreman's position at warehouse 70 and that even if it did, it
did not eliminate the duties of that position which Allen continued to perform, which is why
receive the 75 cents an hour differential pursuant to Article 15 entitled "Wages and
Union also claims that Allen's foreman status is reflected by the fact that there was a
(Carpiaux), at warehouse 70 before he took the job and that there was a dock manager there
he was unilaterally transferred from warehouse 70 to another warehouse days after the
The Company, in turn, contends that the work performed by Allen "is not foreman
performed by other foremen in the bargaining unit"; that his work is "most similar" to other
non-foremen; that because of the computer system in warehouses 70-72, dock managers now
work formerly performed by foremen; and that Allen's testimony is not credible. The
argues that the Maintenance of Standards clause at Article 4 is inapplicable and that its
of a dock manager to warehouse 70 after the hearing "has no bearing" on the issue herein.
Contrary to the Union's claim, I find that the Company's actions herein did not
4 of the contract, entitled "Maintenance of Standards", which provides:
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
minimum of standards in effect at the time of the signing of this Agreement, and the
employment shall be improved where ever specific provisions for improvement are made
in this Agreement.
No employee shall suffer a reduction in pay
if required to take a job with a lesser scale. Any
employee who takes a job with a higher rate of pay shall receive that scale while performing
This language does not prevent the Company from making any changes in its
operations. It, instead,
only prevents the Company from making any unilateral changes involving "conditions of
relating to wages, hours of work, overtime differentials and general working conditions. . ."
any other express language in the contract to the contrary, this means that the Company is
exercise its inherernt managerial prerogative to either abolish positions or to not fill vacant
How Arbitration Works, Elkouri and Elkouri, p. 723 (BNA,
5th Ed., 1997). Hence, the Company
under Article 4 was not required to fill Carpiaux's foreman position after he retired in May.
That, though, is a separate question of whether the Company, after Carpiaux's
continued to assign foreman duties to Allen. If it did, Allen is entitle to foreman's pay under
15 which states in pertinent part: "All Foremen and Dock Managers will be paid a
per hour premium for all hours worked or paid." If it did not, Allen is not entitled to the 75
hour differential he seeks.
There is a sharp testimonial conflict over this issue with Allen claiming, and Banker
both denying, that he performed foreman duties when he took over that job on June 1.
addressing each piece of this testimonial conflict, it suffices here to state that but for the
brought about by the new computerized system in warehouse 70 and the advent of the
continuous operations for Procter and Gamble, Allen at the time of the hearing was
same basic duties formerly performed by former foreman Carpiaux i.e., he was
loading and unloading trucks; for preparing space reports; for answering his cell phone to
customers; for meeting customers, and for sometimes directing another employe. In
assigned seals for non-shuttle trucks a chore that is only performed by foremen and
In other words, Allen like Carpiaux was responsible for operating the
The advent of computerization and the continuous operation did not change that.
affected the means by which Allen performed his record-keeping functions.
They did not affect his
overall responsibility for running warehouse 70 in the absence of a foreman or dock
While the Company asserts that Allen's testimony should not be credited, I find no
doing so. As a result, I credit his testimony about his job duties and conclude that he
foreman's core duties. Hence, it is my
1. That the Company violated Article 15 of the contract when it refused to pay
Mark Allen foreman's pay.
2. That as a remedy, the Company shall immediately pay Allen an additional 75
hour for all the time he worked in warehouse 70.
3. That to resolve any questions that may arise between the parties over
this Award, I shall retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 26th day of July, 2000.