BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL NO. 43
(Grievance of Robert Torres)
Attorney Jonathan M. Conti, Attorney at Law, Previant,
Goldberg, Uelmen, Gratz, Miller and Brueggeman, S.C., 1555 North Rivercenter Drive,
Suite 202, P.O. Box 12993, Milwaukee, Wisconsin 53212, appeared on behalf of the Union.
Attorney Jeffrey Leavell, Attorney at Law, Jeffrey Leavell,
S.C., 723 South Main Street, Racine, Wisconsin 53403, appeared on behalf of the
On October 4, 1999, Kranz, Inc. and Teamsters Local Union No. 43 requested the
Employment Relations Commission to assign an arbitrator to hear and decide a grievance
between the parties. The WERC appointed William C. Houlihan, a member of its staff, to
decide the matter. Hearing on the matter was conducted on December 1, 1999, in
The proceedings were not transcribed. Post-hearing briefs were submitted and exchanged by
December 16, 1999.
This Award addresses a dispute over employee Robert Torres' entitlement to
BACKGROUND AND FACTS
Kranz, Inc. and Teamsters Local No. 43 have been signatories to a series of
bargaining agreements including the 1998-2003 agreement, the relevant portions of which are
forth below. As a part of its regular operation, Kranz offers overtime on a regular and
ongoing basis to bargaining unit employees. Typically, weekend overtime is posted by
Wednesday. Historically, such overtime has been posted no later than 4:00 p.m. on Friday.
Employees sign up and are awarded overtime by seniority. The Company has never
employees to advise them as to the existence of overtime. The collective bargaining
essentially silent on the entitlement to, and distribution of overtime. The system described
a practice between the parties.
Bob Torres, the Grievant, is a truck driver and has been employed by the Company
years. Torres normally works a 55-60 hour work week. Normally, Torres does not sign for
overtime due to the number of hours he typically works Monday through Friday. During the
of August 16, 1999, Torres served a three-day disciplinary suspension, which resulted in his
two days that week. It was his testimony that under that circumstance, he would have signed
weekend work, had he been aware of its existence.
In July, the Company had posted a schedule of anticipated Saturday work for a series
weekends which included August 21. The Grievant had not signed that posting. There is a
over whether or not he had the seniority to claim the work had Torres signed the posting.
On Friday, August 20, 1999, in the late afternoon, the Employer discovered a need
additional help the next day, Saturday, August 21. A notice for the work was posted, though
unclear precisely when. The Grievant left the plant at 3:53 p.m. It was his testimony that
notice was posted upon his departure. It appears the notice went up after 3:53 p.m. and
p.m. A less senior employee signed the posting and worked 4.1 hours on Saturday
August 21. There
was no attempt on the part of the Employer to telephone the Grievant and/or otherwise
as to the existence of overtime work.
On August 25, the Grievant filed a grievance which claims as follows:
"Overtime for Saturday, 8-21-99 was posted on Friday 8-20-99 at
5:30 p.m. after 1st shift had
left at 4:00 p.m. People lower on the seniority list than myself were working the time and
overtime and I was denied the opportunity."
The grievance was denied by memo dated August 31 from Bob Buske, Operations
That memo provides as follows:
The purpose of this letter is to respond to the grievance submitted
by Bob Torres to me through
the union steward Bill Petersen, on 8/30/99.
Bob states that he was denied the
opportunity to sign up for overtime hours that were scheduled
for Saturday, August 21, because the overtime posting was put up after he had left for home
Friday before, August 20, 1999. He also states that because he did not have an opportunity
the overtime posting there were other "individuals" who worked on Saturday that had less
In this instance of scheduling overtime
hours I believe that Bob's description of what took place
on Friday, August 20 was accurate. The overtime postings did not go up until well after
Bob had left
Normally, overtime hours for Saturday are
posted either earlier in the week or at least early
enough in the day on Friday so that everyone has an opportunity to see the posting. It is our
to post overtime hours just as soon as we become aware of the overtime requirements unless
it is an
emergency customer requirement that needs immediate attention, and it is not practical or
to do the posting.
On Friday, August 20, 1999 the second
shift foreman was not aware of the need to call in
additional people for Saturday until after he ran his picklists for the work that had to be done
evening. The picklists run is normally started by 4:00 p.m. and can easily take until after
After finding out the workload was heavy
and the receiving backlog could not be completed on
the second shift that evening, the foreman made the decision to post for more help on
Unfortunately all of this took place well after Bob Torres left for home. The fact that Bob
for home early was unusual in itself because of his Green Bay run. It was not intentional to
Bob from seeing the posting.
This was an unusual set of circumstances
that only happened because of the fact that the overtime
requirement was now (sp.) known until late Friday, but it could happen again. Because it
happen again, I am suggesting that Bob Torres notify the second shift Foreman whenever he
available to work on Saturdays, and if he chooses, he is welcome to call Kranz each Friday
to see if Saturday is being scheduled.
If Bob or you would like to discuss this issue in more detail, I
will make arrangements for that
The parties were unable to stipulate to the issue. The Union states the issue as:
Did the Company violate the collective bargaining agreement
when it did not offer the Grievant
the opportunity to work overtime on August 21, 1999? If so, what is the appropriate
The Company states the issue as:
Did Kranz, Inc. violate the collective bargaining agreement when
it did not offer overtime to Mr.
Torres on August 21, 1999 by telephoning him at his home?
I believe the issue to be:
Did the Company violate the collective
bargaining agreement by posting weekend overtime after
4:00 p.m., Friday, and not calling the Grievant to inform him of the availability of work?
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE 4 SENIORITY
Seniority rights of all employees shall be observed at all times.
The Employer agrees that in case
of a layoff or re-employment, those laid off first shall be re-employed first in the same order
off. The seniority list shall be drawn and posted in a conspicuous place on the premises of
Employer. The Company will give a copy of the seniority list to the Steward, and send one
The Company shall be allowed two (2) working foremen and one
(1) vacation replacement
position. These three positions shall not be affected by the seniority clause.
The Company may hire employees who will
act as vacation and absentee replacement (VAR) for
regular employees. Employees who are hired as vacation absentee replacement (VAR)
will be considered temporary and will not be eligible for seniority rights or benefits as set
9, 10, 11, 18, 19, 20. VAR's may be worked on a one regular
absent, one VAR work basis.
A new employee shall work under the
provisions of this Agreement, but shall be employed on
a sixty (60) day trial basis, during which period he may be discharged without further
case of discipline within the sixty (60) day period, the Employer shall notify the Local Union
writing. After sixty (60) days, the employee shall be placed on the regular seniority list
however, that if there is doubt as to the acceptability of the employee, the Employer, upon
notice to and with the approval of the Local Union, may extend the trial period for an
period of thirty (30) days.
Job vacancies and new jobs shall be posted
immediately by the Company on proper bulletin
boards for a period of three (3) working days, setting forth generally the facts and conditions
respect to such jobs and requesting bids therefore. Any regular employee may sign the
(1) copy of which shall be filed with the Company and the other with the Local Union. The
with the most seniority applying for the vacancy shall be appointed to fill the same if, in the
of the Company, the employee is capable of adequately performing the job.
When the skill and ability of employees are
equal, seniority shall prevail. There will be a thirty
(30) working day trial period, however if in the opinion of the Company, the employee is
perform the work, the employee may be returned to his former position in less than the thirty
The position is of two working foremen and
the vacation replacement position are exempt from
When new jobs are created or vacancies
occur, the jobs will be posted for three (3) working days
and shall state the nature of the position, shift and area of work and requesting bids
Until a posted position is filled by use of
the bid procedure, the Company may temporarily fill any
Employees can switch jobs at their
discretion but only with Employer (Kranz) approval on the
basis of qualifications and the mutual consent of the two (2) employees involved.
Management can either hire or subcontract
for any employee not to be in the Union to repair the
high tech equipment (defined as any piece of equipment that cannot be repaired properly by a
handyman) that the Company is selling.
. . .
ARTICLE 8 WAGES AND HOURS
. . .
Forty (40) hours shall constitute a week's work.
The working days shall be Monday,
Tuesday, Wednesday, Thursday and Friday. The standard
shift will be eight (8) hours, all work performed before or after the standard shift shall be
paid at time
and one-half (1½) the hourly rate set for the above.
. . .
Time and one-half (1½) will be paid for all work performed
. . .
Failure to work overtime when ordered by
the Company subjects the employee to disciplinary
action and ultimate discharge. No employee shall be ordered to work more than sixty (60)
. . .
Any work required before the normal start
time window shall be considered overtime and shall
be paid at the overtime rate. The normal start time window for the first shift is from 4:00
a.m. to 7:30
a.m. and for the second shift is from 4:00 p.m. to 7:30 p.m. and for transfer truck drivers,
time is flexible. All employees on the second shift shall receive thirty cents ($.30) per hour
the rate set forth in this Agreement.
. . .
POSITIONS OF THE PARTIES
It is the position of the Union that the parties' collective bargaining agreement
overtime shall be offered on the basis of seniority. The Union contends that the Company
the agreement by failing to offer overtime to the Grievant for Saturday, August 21. It is the
claim that the Company's past practice is to post weekend overtime, at the absolute latest,
end of Friday's first shift. Article 4 of the parties' collective bargaining agreement requires
seniority control the assignment of overtime. By failing to follow its posting practice on
the Company violates its contractual obligation to award overtime on the basis of seniority.
The Union argues that the posting of overtime before the end of the first shift on
been a mutually-accepted past practice. The Union cites record testimony to the effect that
overtime postings inevitably occur prior to 4:00 p.m. on Friday. While the Company argues
Torres' timecard reveals that he punched out at 3:53 p.m. on Friday, and perhaps the
posted between 3:53 and 4:00 p.m., there is absolutely no evidence that this occurred.
witnesses could not give a definitive answer as to when the overtime was posted, and the
answer to the grievance indicates that the events took place "well after Bob Torres left for
The Union contends that the Company made no effort to offer the same overtime
to the Grievant as it did to a junior second shift employee. Since the Company's past
practice is to
post weekend overtime on Wednesday, or at least before the end of Friday's first shift, and
the Company did not follow this practice on August 20, it was obligated to contact Torres
him the same opportunity to work overtime that it did to its second shift employees.
The Union contends that it is not Torres' fault that he was not present when the
posted. There is no contention that Torres was not entitled to leave when he did.
The Union contends that the Company's argument that it never called employees at
regarding overtime postings is not relevant, because the present situation is unique. The
has always posted weekend overtime before the end of Friday's first shift, thus, there was
need to call an employee at home. The only reason that the Company has not called
home is because such a scenario has not previously arisen.
The Union contends that Torres' failure to sign up for weekend overtime on July 6,
irrelevant as to whether the Company should have offered Torres the opportunity to work
on August 21, 1999. The Union notes that Torres typically does not need to work weekend
because he receives plenty of overtime during the week. As of July 6, this was the case.
the facts changed during the week which included August 21,
when Torres only worked two days, thereby resulting in a need for weekend overtime.
goes on to argue that the posted July 6 work was different in kind from that available on
and that the Grievant was not qualified for the former, but was for the latter. Finally, the
contends that there was a more senior employee available for the August 21 work which was
In conclusion, the Union contends that the Grievant should be paid for 4.1 hours of
It is the view of the Company that the collective bargaining agreement is silent on the
overtime posting method. The Company walks through the various provisions that address
and argues that if Torres or the Union seeks to impose a telephone calling list duty on the
it should be bargained. The Company says that the Union focuses on the Article 4 reference
seniority rights. The Company notes that that Article addresses layoff, new hires, job
probationary period. It does not address hours or overtime. Nowhere in the agreement are
rights defined, nor does the contract mandate how they are to be observed. However, the
argues that the placement of the seniority rights sentence in Article 4 suggests the seniority
be observed are those implicated by layoff, job security, new hires and probationary periods.
Generally, the assignment of overtime is an exclusive managerial right in the absence of
language which restricts it.
The Company acknowledges that the past practice in assigning overtime is to post it
bulletin board. The Company contends that it followed that practice. Kranz posts available
on a bulletin board sign-up sheet, and assigns it by seniority as a matter of past practice. All
acknowledge that. The Company notes that the Grievant admitted that he left seven minutes
4:00 p.m. on that Friday without speaking to the people he knew scheduled overtime. The
also admitted he knew that the Company had no history of telephoning employees for
Torres admitted that he was aware of the July 6, 1999 overtime posting, and that he
was qualified for
that overtime work, and did not sign for it. It was his decision not to work the Saturday.
Company contends that Torres could have telephoned later on Friday afternoon to talk to his
supervisor or could have mentioned to his supervisor on his way out that he was interested in
overtime. He did neither.
It is the Company's view that the Grievant seeks to create a new, burdensome and
practice that must be bargained. Torres' grievance seeks to impose a new duty on Kranz to
interrogate bargaining members by telephone to determine whether they want to work
clearly contrary to past practice. The burden is alleged to be impossible. Given the crush of
that Friday afternoon, the Company was in no position to begin telephoning employees to
their availability for overtime. The details of such a system would be overwhelming.
The language of the collective bargaining agreement does not address the posting or
assignment of overtime. As noted by the Company, Article 4, Seniority makes no reference
assignment of overtime. However, both parties acknowledge a practice of posting weekend
usually by Wednesday, and no later than 4:00 p.m. Friday, and thereafter assigning it by
It appears that the Company became aware of the need for Saturday work too late to
by 4:00 p.m. Once aware, the Saturday work was posted and assigned. The question
is under the circumstances, was the Company required to call Torres? Both parties look to
practice to provide an answer.
The practice is to post overtime work ahead, typically by Wednesday, but no later
at 4:00 p.m. My view of the record is that the Company could not post by 4:00 because
they did not
realize the need for overtime until after 4:00 p.m. The traditional analysis of past practice is
commonly stated as follows:
"In the absence of a written agreement, 'past practice' to be
binding on both Parties, must be (1)
unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a
of time as a fixed, and established practice accepted by both Parties."
(Elkouri, at p. 632 citing Celanese Corp. of
America, 24 LA 162.)
Inherent in the analysis is that the parties have arrived at some mutually understood
handling certain matters they have encountered in the past. The underlying premise in
practice doctrine is that once parties have established a way of doing business with one
are, under certain circumstances, bound to that practice.
The application of past practice does not fit the facts presented in this dispute. This
exists because these parties faced a situation not previously encountered. The posting went
because the Company was not aware of its need for Saturday overtime until after
4:00 p.m. It
appears that this has either never happened before or if it did, has not been contested.
Torres would not be interested in weekend work due to his heavy weekly work schedule.
in the August 21 overtime is atypical. Finally, the record indicates that Torres left before
which itself is an unusual circumstance for man who commonly works very long days.
grievance answer notes that it was unusual for Torres to have gone home early.
It is the combination of these unique events occurring simultaneously that gives rise
dispute. The parties' practice does not contemplate any of this. In summary, neither the
the contract, nor the practice of the parties extend to the events which occurred.
Given the press of business, the Company acted reasonably. I find nothing in the
agreement that required the Company to call Torres.
The grievance is denied.
Dated at Madison, Wisconsin this 29th day of September, 2000.