BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
B & T MAIL SERVICE, INC.
THE EMPLOYEES ASSOCIATION OF
B & T MAIL SERVICE, INC.
Attorney Michael Aldana, Quarles & Brady, S.C., Attorneys at
Law, 411 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, appearing on behalf of the
Attorney George Graf, Murphy, Gillick, Wicht and
Prachthauser, Attorneys at Law, 300 North Corporate Drive, Suite 260, Brookfield,
Wisconsin 53045, appearing on behalf of the Employees Association.
The above-captioned parties, hereinafter B & T or Company, and
the Employees Association or Union, respectively, were signatories
to a collective bargaining agreement which provided for final and
binding arbitration of grievances. Pursuant to a request for
arbitration, the Wisconsin Employment Relations Commission
appointed the undersigned to hear two grievances. The two
grievances were denominated by the parties as Grievance 797 and
857. A hearing, which was not transcribed, was held on November 3,
2000, in Milwaukee, Wisconsin. Afterward, the parties filed
briefs, whereupon the record was closed on December 14, 2000.
Based on the entire record, the undersigned issues the following
The parties were unable to stipulate to the issue(s) to be
decided in this case. The Union framed the issue for both
Grievance 797 and 857 as follows:
Did the Company violate the collective bargaining agreement by
unilaterally cutting the wages paid to employees for various routes
and deducting money from the employees' checks without
authorization? If so, what is the appropriate remedy?
The Company framed the issues as follows:
Grievance No. 797
Did the Company breach the 1997-2000
agreement by reducing by one hour the trip run by Terry Feene that
it had previously overpaid him? If so, what should be the remedy?
Did the Company violate the 1997-2000
agreement by providing the drivers with unpaid breaks? If so, what
should be the remedy?
Having reviewed the record and arguments in this case, the
undersigned finds the Company's issue appropriate for purposes of
deciding Grievance 857. Consequently, the Company's wording of the
issue for Grievance 857 is adopted. With regard to Grievance 797,
I have essentially adopted the Company's wording of the issue, but
have expanded it to cover more than just Feene. Specifically, I
have also included Olejnik in same. Consequently, the issue which
will be decided in Grievance 797 is this:
Did the Company violate the 1997-2000 collective bargaining
agreement by reducing the time it paid to Feene and Olejnik for
their Wausau mail routes? If so, what should be the remedy?
The parties' 1997-2000 collective bargaining agreement
contained the following pertinent provisions:
ARTICLE III SCOPE
. . .
Section 3.3 Management Rights
The management and conduct of the business of the Company and
the direction of its working force are the right of the Company.
Without limiting the generality of the foregoing, the Company shall
have the right, subject to the terms of this Agreement, to hire and
lay off Drivers or any other employees of the Company, and to
classify, assign, transfer and promote them, to demote or suspend
or otherwise discipline or discharge same and, in general, to
maintain discipline, order and efficiency at its facilities and in
its business. The Company reserves the right to publish reasonable
rules and regulations from time to time as it deems necessary and
proper for the conduct of its business so long as the same are not
inconsistent with the terms of this Agreement.
. . .
ARTICLE IV EMPLOYEE
[Although not reproduced here, this seven-page article spells
out how drivers are paid.]
. . .
ARTICLE VII DISCIPLINE AND
. . .
Article 7.6 Seniority
. . .
(c) All new permanent U.S.
Postal Mail Routes that the Company is
awarded or openings shall be posted allowing all Drivers the
opportunity to bid on a route. A driver must meet all postal
and B & T Mail Service, Inc. qualifications in order to be
awarded a route. The qualified senior driver bidding on the
route shall get it. If there is a question of being
qualified, it will be brought in front of the EA for review.
If a driver takes a route, he/she shall stay on that route for
a minimum of one year or until the route ends, whichever comes
B & T Mail Services is a family-owned trucking company
headquartered in New Berlin, Wisconsin. It employs approximately
140 full and part-time employees. About half of its business is
mail hauling, with the other half being freight hauling. Tom
Gutenberger is the Company's president. The Employees Association
of B & T Mail Service is the bargaining representative for all
drivers employed by B & T. For purposes of this arbitration, the
relevant collective bargaining agreement is the parties' 1997
through 2000 contract.
The Company gets its mail hauling work through contracts with
the United States Postal Service. It obtains these mail hauling
contracts through a bidding process (i.e. it bids on contracts).
The mail route involved in this case is known as the Wausau
route. That particular route goes from Milwaukee to Wausau and
back to Milwaukee. The Company's contract with the U.S. Postal
Service for the Wausau route was awarded effective in July, 1998.
The term of that contract was July, 1998 through June, 2002. The
Wausau contract calls for B & T to run numerous round trips to and
from two Milwaukee post office facilities (namely the Downtown main
facility and the Oak Creek Annex) to the main post office in
Wausau. The basic duties for a driver assigned to one of these
routes on the Wausau contract are this: first, the driver reports
to the Company's yard in New Berlin and prepares his truck for the
trip. Then, he drives to either the Milwaukee Annex or the
Downtown facility, picks up a mail trailer and has it attached to
his truck. Then he drives to Wausau, where he drops off the
trailer and has a new trailer attached to the truck. Finally, he
returns to Milwaukee. The drivers have no duties while at any Post
Office facilities, other than ensuring that the trailers are
properly attached to their trucks.
The following specifics about the Wausau contract are relevant
here. Like other mail hauling contracts, the Wausau contract
specified the times that drivers needed to be at the various
facilities. It also provided for a specified amount of time
between facilities. Under the Wausau contract, the time which the
Post Office allows for travel between facilities (and on which it
based its contract rate and payments to B & T) is greater than the
actual amount of time needed to travel those routes. As an
example, in the Wausau contract the amount of time which is
allocated for the trip between downtown Milwaukee and Wausau is 3
hours and 50 minutes. In actuality though, that trip usually takes
less time than 3 hours and 50 minutes to complete. It generally
takes between 3¼ and 3½ hours.
After the Company was awarded the Wausau mail route,
Gutenberger announced news of same to bargaining unit drivers in a
written posting on May 14, 1998. That posting described the number
of routes which would be available for bidding, a chart which
specified the amount of time which the Company would pay for those
routes and the hourly rate of pay.
The portion of the chart which is pertinent to this case is the
part which specified that the Company would pay 11¼ hours for Trips
This posting was done pursuant to the posting provision of the
collective bargaining agreement. That provision, which is found in
Article 7.6(c) of the agreement says that the Company must post all
new permanent U.S. Postal Mail routes. In order to post for a mail
route, the driver must meet all postal and B & T qualifications.
The posting provision further specifies that the route is to be
awarded to the most senior, qualified driver.
. . .
Mail drivers and freight drivers are paid differently. An
overview of their pay follows.
Mail route drivers are paid a flat rate for each trip. This
flat rate is determined by taking the amount of time which the
Company sets for each trip, and multiplying it by the hourly pay
rate which is specified in Article IV of the collective bargaining
agreement. For example, if the time which the Company sets for a
given route is 10 hours, and the driver's hourly pay rate is $15 an
hour, then the driver is paid a flat rate of $150 for the trip.
The driver is paid this amount even if it takes him less time to
complete the trip. Thus, in the example just given, the driver
would be paid $150 for the trip even if it took him, say, 9½ hours
to complete the trip. If a driver takes more time than is
scheduled to complete a route because of inclement weather, vehicle
problems or delays at the postal facilities, he can request
additional pay by submitting a written request. This latter
situation is not involved in this case.
While mail route drivers are paid a flat rate for each trip,
freight route drivers are not. Freight route drivers are paid
based on the actual amount of time driven. Thus, freight drivers
are paid hourly.
. . .
On April 12, 1999, the Company notified drivers in a written
memo that drivers on certain Wausau mail routes were being overpaid
by the Company. One of the routes so specified in the memo was
Trip 19/20. With regard to Trip 19/20, the memo specified that
henceforth, the Company would pay 9½ hours for that route. Prior
to that memo, the Company had paid 10 hours for that particular
route. The reason the Company reduced the pay for the trip from 10
hours to 9½ hours was because the route changed. Originally, the
route included two delivery stops in the Milwaukee area. At some
point though, the post office changed the route and eliminated one
of the two Milwaukee stops and shortened a layover in Wausau. One
effect of these changes was that it took less time for the driver
to complete the route. The driver who was driving the route at the
time this reduction was implemented was Mike Wolf. This half-hour
reduction was implemented in April, 1999. In August, 1999, Wolf
complained to the Company in writing about his half-hour time
. . .
The two grievances which are referenced in the following
section both involve pay disputes. Both grievances claim the
Company took time, which translates to money, from the drivers.
On June 16, 1999, the Union filed Grievance 797 on behalf of
Terry Fenne. The phrase "add all Wausau driver[s]" was
subsequently added. In litigating this grievance, the Union
contended that the Company improperly reduced Fenne's pay by one
hour per trip and Wally Olejnik's pay by a half-hour per trip.
The facts pertaining to Fenne are as follows. Fenne posted
for, and was awarded, a Wausau mail route. Specifically, he was
awarded Trip 3/4. This trip originated at B & T's New Berlin yard,
then went to the USPS' downtown Milwaukee and annex facilities,
then proceeded to Wausau, and finally returned to New Berlin.
Fenne subsequently drove the Milwaukee to Wausau route for
over a year. His Tripmaster records (which are taken from a
computer in the truck) indicate that his work routine for that trip
was as follows. His scheduled start time was 1600 hours (4 p.m.)
After he left the New Berlin yard, he would drive to the Milwaukee
post office annex. According to the USPS contract, he was to be at
the annex by 1700 hours (5 p.m.). He would then drive to Wausau,
drop off his trailer, get a new trailer and return to the Milwaukee
area. Before reporting to the Milwaukee post office, he would take
a break in Wauwatosa so that he was not early to the post office.
After leaving the Milwaukee post office at 0205 hours (2:05 a.m.),
he would return to the New Berlin yard. He routinely returned to
the New Berlin yard around 0230 hours (2:30 a.m.). He would be
clocked out by 0245 hours (2:45 a.m.).
The foregoing numbers show that Fenne's start time was 1600
hours (4:00 p.m.) and his end time was usually no later than 0245
hours (2:45 a.m.) The time difference between these two figures is
10¾ hours. This figure of 10¾ hours includes a half-hour unpaid
break. When that half-hour is deducted from the 10¾ hour figure,
the total time becomes 10¼ hours. The Union does not expressly
dispute the foregoing numbers.
For over a year, the Company paid Fenne for 11¼ hours each
time he drove the Wausau route. It did so because Fenne completed
a time card each time he drove the Wausau route which said "Wausau
Trips 3 and 4 11¼ hours." Fenne used this figure (11¼) on his time
card because it was the one which the Company had specified it
would pay for that trip in
the May, 1998 posting. During that one year period, Fenne's
Tripmaster records indicated that he was arriving back at the
Company's New Berlin yard by 0230 hours (2:30 a.m.).
Sometime in mid-1999, the Company's payroll person, Pete
Dickinson, informed Gutenberger that while the Company was paying
Fenne 11¼ hours for the Wausau route, it was only taking him 10¼
hours to complete it.
After reviewing the situation, Gutenberger concluded that the
Company had overpaid Fenne for Trips 3/4, and was continuing to
overpay him by one hour each time he drove the Wausau route.
Gutenberger subsequently took the position that the reference on
the May 14, 1998 posting which had listed Trips 3/4 as paying 11¼
hours was a "clerical error", and should have instead listed the
hours as 10¼, not 11¼.
Gutenberger subsequently directed Dickinson to tell Fenne that
he (Fenne) had been overpaid by an hour for each Wausau trip he had
made in the last year and that, to remedy same, the Company was
going to cut his pay prospectively for the Wausau trip by one hour.
For reasons not identified in the record, that never happened.
Thus, Dickinson never talked with Fenne about the matter or gave
him advance notice that the Company was going to reduce his pay
prospectively for the Wausau trip by one hour. After the pay
reduction was implemented by the Company, Fenne noticed the change
in his paycheck and complained to Gutenberger about it (i.e. the
pay reduction). Gutenberger responded that the one-hour pay
reduction was warranted because the trip did not take 11¼ hours to
run, but rather took 10¼ hours. Gutenberger asserted that Fenne
had been mistakenly overpaid by an hour each time he made the trip.
Fenne told Gutenberger that he knew the 11¼ figure was a mistake,
but argued that he could not afford a pay cut.
On July 15, 1999, Gutenberger sent out a written memo to all
drivers which, in pertinent part, notified them that the Company
had made a mistake in paying for Trips 3/4. The memo provided
. . .The Company
has also discovered that we have been over
paying trips #3/4 on the Wausau Contract. Effective immediately
this trip will only pay 10¼ hours (if ran in its entirety).
. . .
The facts pertaining to Olejnik are as follows. Olejnik
assumed a Wausau mail route in the summer of 1999. It can be
surmised from the record that he posted for it, but it is unclear
which route he posted for. Sometimes it was referenced as Trips
1/2, while other times it was referenced Trips 19/20.
Additionally, sometimes it was referenced as Mike Wolf's old route,
while other times it was referenced as Bob Kasian's old route. The
posting for the route
Olejnik assumed is not contained in the record, nor is the time
which the Company established for the route (i.e. how much it would
pay a driver to drive that route). In any event, the first week
Olejnik drove the Wausau route in July, 1999, the Company paid him
11 hours for the trip. Thereafter though, the Company paid him 10½
hours per trip. It is unclear from the record why the Company
reduced by a half-hour the time it paid Olejnik for his route.
On August 27, 1999, the Union filed Grievance 857 on behalf of
all drivers. It alleged that the Company forced drivers to take
breaks and that "no where in contract or handbook it states
mandatory break." In the "Article and Section Claimed Violated"
portion of the grievance form, the phrase "785.16 Part B" was
listed. That is apparently a reference to United States Department
of Labor regulations for the Fair Labor Standards Act. No
provision of the parties' collective bargaining agreement was cited
as being violated.
While it is not referenced anywhere on the face of the
grievance, this grievance involves two matters which are currently
part of the Company's operation: one is the Company's on board
computer tracking system and the other is a de facto work rule
known as the seven minute rule. Each is addressed below.
The Company uses an on board computer tracking system which is
known as the Tripmaster System. The Tripmaster tracks the physical
location of a truck through satellite tracking, shows the amount of
time traveled, the number of miles traveled, and the number of
hours on-duty. Whenever a driver stops, the Tripmaster can
identify where the driver stopped and the duration of the stop.
For example, if a driver stops at a restaurant, the Tripmaster will
show the location of the stop and its duration. The reason the
Company knows the location of the stop is because the Company has
entered the locations of gas stations, restaurants and the like
into the Tripmaster program.
The Tripmaster records this information for both mail drivers
and freight drivers.
The Company uses this information from the Tripmaster to
determine the nature of the driver's stop.
If a stop is for what the Company considers a work-related
reason, the driver is paid for the duration of the entire stop.
Some of the reasons which the Company considers work-related are
filling the vehicle with fuel, weighing the vehicle, or doing
maintenance or repair to same.
If a stop is for a reason that the Company considers a non-work related reason
though, and is longer than seven minutes, the
Company treats it (i.e. the stop) as an unpaid 15-minute break.
The foregoing has come to be known as the seven-minute rule.
This rule has never been put in writing, but nonetheless has become
a de facto work rule because Company representatives tell drivers
when they are hired that they will not be paid for non-work related
stops which last longer than seven minutes. The record does not
indicate how long this rule has existed, but it was instituted by
Gutenberger's father when he was president of the Company (which
was ten years ago). Pursuant to this rule, freight drivers who
take non-work related stops longer than seven minutes have the stop
treated as an unpaid 15-minute break. Thus, in those instances,
the Company essentially docks the driver's pay by 15 minutes. This
obviously results in the employee being paid less than if they had
not been docked.
The seven-minute rule applies only to non-work related stops;
it does not apply to work-related stops. Additionally, the seven-minute rule applies only to
freight drivers, not mail drivers,
because mail drivers are paid a flat rate for each trip while
freight drivers are paid hourly.
The record herein does not contain any instance of pay
deductions (via the seven-minute rule) which the Union considers
improper. Additionally, the record does not contain any specifics
such as the number of drivers who were affected by the seven-minute
rule, how many times it had occurred and on what routes, the amount
of time and/or pay deducted, and what the reasons for the stop
. . .
In September, 1999, the above-captioned grievances were
appealed to arbitration. An arbitration hearing was subsequently
scheduled for November 18, 1999. That hearing was cancelled at the
Union's request after the Union filed an unfair labor practice
charge against the Company with the National Labor Relations Board
(NLRB). The NLRB subsequently deferred the matter to arbitration.
After the NLRB took this action, the arbitration of the above-captioned grievances was
POSITIONS OF THE PARTIES
The Union contends that both grievances are meritorious and
should be sustained. It elaborates as follows.
With regard to Grievance 797, the Union asserts at the outset
that the record establishes that the Company reduced Fenne's pay by
one hour per trip and Olejnik's pay by ½ hour per trip. Building
on that premise, the Union attacks these pay reductions on two
fronts: first, the legitimacy of the pay cuts and second, the
unilateral nature of the action (i.e. the fact that the Company
docked the employee's pay without giving them any forewarning of
same.) The Union contends that the Company did not have the right
under the collective bargaining agreement or "existing labor law"
to make these changes. According to the Union, the only time the
Company can change the amount it pays a driver is when there is
either a change in the assigned duties or is a verifiable clerical
error. It avers that neither occurred here. With regard to the
former, it asserts that neither driver's route changed. With
regard to the latter, it contends that Gutenberger's claim that he
merely corrected a "clerical mistake" in Fenne's route cannot
withstand scrutiny. In the Union's view, that claim is "pure
nonsense" because the Company knew, through its computer system,
every move that Fenne made. Specifically, it knew when he started,
when he stopped, when he arrived at various destinations and when
he checked out. Finally, the Union calls the arbitrator's
attention to the fact that the Company paid Fenne at the figure
listed on the posting for over a year (i.e. 11¼ hours per trip).
The Union argues that the parties have to live with that figure
(i.e. 11¼ hours per trip) unless a change is negotiated between the
Company and the Union.
With regard to Grievance 857, the Union contends that the
Company once again took time (which translates to money) from the
drivers. The Union asserts it did so by imposing the seven-minute
rule. According to the Union, that rule was a change from what had
occurred earlier. Building on that premise, the Union attacks the
seven-minute rule on two fronts: first, the legitimacy of the rule
and second, how the Company implemented it. With regard to the
latter, the Union objects to the Company's unilateral
implementation of same.
The Union asks that the arbitrator sustain the two grievances
and issue what it calls "an appropriate remedial Order." As the
Union sees it, that Order should provide a ruling that the
unilateral action taken by the Company violated both the legal
obligation to bargain over wage rates (which are a mandatory
subject of bargaining) as well as the terms of the collective
bargaining agreement itself. The Union also asks that the Company
be ordered to make whole any employees who have suffered monetary
losses as a result of the Company's actions. Finally, the Union
requests that the Company be ordered to maintain the agreed upon
rates and hours of pay unless and until the Company negotiates a
change with the Union.
The Company contends that it did not violate the collective
bargaining agreement by its actions herein. In its view, neither
grievance has merit. It elaborates as follows.
With regard to Grievance 797, the Company acknowledges that it
reduced Fenne's and Olejnik's pay. The Company asserts that the
reason it did so was to correct a mistake and have the pay for the
trips they were driving conform with the amount of time it actually
took them to drive the trips. It argues that the Union's
contention that the Company is essentially stuck with the hours it
originally sets for a given route has no basis in the parties'
collective bargaining agreement or in real life. The Company
contends that the fact that it first announced Trips 3 and 4 would
take 11¼ hours is not binding. The Company notes in this regard
that the duration of the trips was not bargained with the Union and
is not part of the contract.
The Company maintains that in order for a contract violation
to be found, some provision of the contract must have been
violated. It first calls attention to the fact that the grievance
does not cite a contract provision which the Company is alleged to
have violated. According to the Company, without any citation to
a contract provision allegedly violated, or even some sort of
alleged past practice violation, the arbitrator has no basis on
which to determine a violation.
Aside from that, the Company asserts that its actions herein
were appropriate and within its management rights. In making this
argument, it notes that the first sentence of the management rights
clause specifically reserves to B & T the right to "conduct. . .the
business of the Company and the direction of its working force."
That same clause also gives management the right to "maintain. .
.order and efficiency and its facilities and in its business." The
City avers that the right to set the amount of time a job should
take is within B & T's management rights. It notes in this regard
that nothing in the collective bargaining agreement addresses how
long a given mail route to a certain destination should take or how
much the Company has to pay for a certain route. Building on that
premise, the Company asserts it can adjust the hours it pays for a
specific route (which is what happened here). The Company stresses
that after it corrected its mistaken overpayment to Fenne, it was
still paying him for the time he worked (i.e. 10¼ hours). The
Company maintains that when the Union argues that Fenne should be
paid 11¼ hours for his Wausau route, what it is seeking is pay for
time he did not work.
The Company argues that its reduction in the amount of hours
set for Trips 19/20 was also consistent with B & T's rights to set
the amount of time it would pay for a certain job. The Company
submits that once it learned that the scope of the trip had been
reduced by the post office, and that the route did not take the
amount of time originally thought, it had the right to reduce the
hours allocated for the trips.
As the Company sees it, what the Union seeks for a remedy in
this case is a windfall since the Union wants the arbitrator to pay
certain drivers for work they admittedly did not perform.
According to the Company, a "clerical error" and a change in the
nature of the trips should not be grounds for a windfall to the
Turning now to Grievance 857, the Company argues it is moot
and therefore should be dismissed. In the alternative, the Company
contends that the Union failed to point to any contractual
provisions which the Company allegedly violated with the seven-minute rule. Finally,
assuming that the Union did establish a
contract violation, the Company avers that the Union failed to
produce any evidence of damages. It notes in this regard that none
of the Union's witnesses could state how many drivers were
allegedly affected by the "seven minute rule," how many times, on
what dates, what the reasons for the breaks were, or even the most
fundamental piece of evidence: what the total amount of back pay
is that they are seeking.
The Company therefore asks that both grievances be denied and
The Company acknowledges that it changed the hours it paid for
two of its Wausau mail routes. This "adjustment", as the Company
calls it, was not upward, rather it was downward. This
"adjustment" therefore reduced the drivers' compensable hours,
which in turn, reduced their pay.
At issue here is whether the Company violated the collective
bargaining agreement by its actions. The Union contends that it
did, while the Company disputes that assertion.
In deciding this contractual dispute, I will first address the
contract language. After that discussion is completed, attention
will be turned to other arguments raised by the Union.
Inasmuch as the basic subject matter of this case involves pay
for mail routes, I think that the logical starting point for
purposes of discussion is to ask rhetorically whether there is any
contract language dealing with same. That question is answered as
follows. A review of the collective bargaining agreement,
particularly Article IV, indicates that it does specify what the
hourly wage rate is for drivers. Since freight drivers are paid
hourly, Article IV conclusively answers the question of how much
they (the freight drivers) are paid. Specifically, they are paid
the hourly rate listed in Article IV times the actual amount of
time driven. The foregoing has been noted simply for comparison
purposes because this case does not involve freight driver pay it
involves mail driver pay. Mail route drivers are paid pursuant to
a different formula. Their formula is this: the hourly pay rate
listed in Article IV is multiplied by the amount of time set for
each mail route. Thus, if a driver's hourly pay rate is $15 an
hour, and the time set for his route is 10 hours, then the driver
gets paid a flat rate of $150 for the trip. Obviously, a big part
of this formula is the amount of time set for each trip.
The next question is to ask rhetorically whether the parties
have negotiated over the amount of time set for each trip. That
question is answered in the negative. A review of Article IV
indicates it does not contain language specifying how long a given
mail route to a certain destination should take or how much the
Company has to pay for a certain mail route. This contractual
silence means that the parties have not included language in their
collective bargaining agreement dealing with how long a given mail
route to a certain destination is to take or how much the Company
has to pay a driver for driving a certain mail route. That being
so, there is nothing in the collective bargaining agreement which
dictates the amount of time the Company has to pay to mail drivers
for the Wausau routes. As a practical matter, this explains why
the Union did not cite a particular contractual provision to
support its case.
When a collective bargaining agreement contains no express
provision on the subject being addressed (i.e. the situation
present here), arbitrators routinely look to the contractual
management rights clause, if there is one, to see if it provides
any guidance. In accordance with that generally-accepted notion,
the undersigned will next look to the contractual management rights
The first sentence of the management rights clause
specifically reserves to B & T the right to "conduct. . .the
business of the Company and the direction of its working force."
That clause also gives management the right to "maintain. . .order
and efficiency at its facilities and in its business." This
language is certainly broad enough to give management the right to
determine the length of time a given job should take. Building on
that premise, this language can further be interpreted to give
management the right to unilaterally set the amount of time a
delivery job should take, and correspondingly the number of hours
it will pay to a mail driver for a specific mail route.
The following facts are repeated because they are relevant to
the discussion which follows. The Company originally set the time
it would pay for Trips 3/4 at 11¼ hours. Feene assumed the route
and drove it for over a year. Each time he did so, he was paid the
amount of time which the route was posted at, namely 11¼ hours.
About a year after he assumed the route, the Company reduced the
time it paid for the route. Specifically, it reduced the time by
one hour to 10¼ hours. The Company's reason for doing so will be
The foregoing facts demonstrate that the Company twice
unilaterally set the number of hours for Trips 3/4. The Union does
not object to the Company's setting the first figure; it only
objects to the second. Thus, the Union cries foul over just the
reduction. Their arguments concerning same are addressed below.
The Union's first argument in challenging Feene's reduction is
that since the Company originally set the hours for Trips 3/4 at
11¼, it cannot adjust it; essentially, it should be stuck with the
hours it originally set. The undersigned could accept the Union's
premise if there was a contractual basis for the 11¼ figure.
However, there is not. As previously noted, that figure was not
bargained with the Union, and thus is not part of the collective
bargaining agreement. Instead, it was unilaterally set by the
Company. As the Union is well aware, when the Company unilaterally
creates something outside the parameters of the collective
bargaining agreement, it can generally unilaterally take it away.
While there are certainly exceptions to the general principle just
noted, none of them are present here. Consequently, the fact that
the Company originally set the figure at 11¼ hours does not make it
Next, the Union argues that even if the Company can make a
subsequent change in the number of hours set for a mail route, it
should only be able to do so when there is a change in the route or
a verifiable clerical error. The Union avers that neither occurred
I begin my discussion on this point by agreeing with the Union
that neither of the foregoing occurred here. First, insofar as the
record shows, nothing about Trips 3/4 has changed. It still
involves the same number of stops as it did when it was posted.
That being so, the route itself has not changed. Second, while the
Company characterized the original listing of 11¼ hours as a
"clerical error", the record evidence does not support that
assertion. I am convinced that when the Company originally posted
the time it would pay for Trips 3/4, the figure which it intended
to put in the posting was 11¼. That was, in fact, the figure which
was typed in.
That said, I do not agree with the Union that because no
change in the route or clerical error was shown, this means that
the Company cannot change the number of hours. In my view, there
is at least one more instance where the Company can change the
number of hours it sets for a route. It is when a mistake is made
which the Company subsequently wants to correct. That is what
happened here. The Company originally thought it would take a
driver 11¼ hours to complete Trips 3/4. It turned out that this
estimate was wrong because it actually takes an hour less than
that. One way to characterize the foregoing is to say that the
figure of 11¼ hours was a mistake. Even the driver of the route,
Feene, ultimately acknowledged as much to Gutenberger. When the
Company makes a mistake in the number of hours it sets for a given
mail route, it can either live with the consequences of the mistake
or correct it. The Company chose the latter course of action
rather than the former. I find that it had the contractual right
to make that managerial decision because the management rights
clause implicitly gave it that right. Additionally, nothing in the
collective bargaining agreement explicitly restricts it from doing
so (i.e. correcting what the Company considers a mistake concerning
the number of hours it pays for a mail route).
Finally, the Union calls the arbitrator's attention to the way
the Company decided to implement Feene's pay reduction, namely 1)
unilaterally and 2) without any advance notice to Feene. These
points will be addressed in inverse order. With regard to the
second point (i.e. the lack of advance notice), the record
indicates that Gutenberger told Dickinson to tell Feene that his
pay was going to be cut prospectively. However, for unknown
reasons, Dickinson dropped the proverbial ball and did not get this
news to Feene before the pay cut was implemented. As a result,
Feene was blindsided by the pay cut. Obviously, it would have been
better if Feene had been given notice of the reduction before it
was actually implemented. However, the fact that he did not get
advance notice of the reduction does not somehow turn the Company's
act into a contract violation. With regard to the first point
(i.e. the fact that the Company acted unilaterally), the
undersigned believes that point has already been addressed in the
previous analysis. It therefore suffices to say here that since
the management rights clause gives the Company the right to set the
hours for mail routes, and nothing in the collective bargaining
agreement restricts this right, the Company had the right to
unilaterally implement changes to same.
Attention is now turned to the reduction in Olejnik's hours.
Olejnik, like Feene, had his time reduced on a Wausau route.
Olejnik's time was reduced by a half hour shortly after he assumed
the route. It is unclear from the record which route he was
driving when his time was reduced. It is also unclear from the
record why the Company reduced the time it paid Olejnik for his
route. One possible explanation (and the one proffered by the
Company) is that Olejnik assumed Wolf's old route which had the
time cut because of a route change. Another possible explanation
is that, like Feene's situation, the Company simply made a mistake
in estimating the amount of time it took to complete the route.
Either way though, the outcome herein is the same. The reason is
this: I believe that my previous finding concerning Feene's
reduction in hours also apply to Olejnik's reduction in hours.
While the facts are obviously different in Olejnik's situation than
they were in Feene's situation, the contractual analysis is
identical. With regard to Feene's reduction, I found that the
Company had the right to reduce the time it paid for his mail route
because it had retained the right, via the management rights
clause, to set the time it pays for mail routes. The same
reasoning and outcome applies to Olejnik's reduction.
Consequently, it is held that the Company did not violate the
collective bargaining agreement by reducing the time it paid to
Feene and Olejnik for their Wausau mail routes.
In this grievance, the Union contends that the Company once
again took time (which translates to money) from the drivers via
the seven-minute rule.
The following facts are repeated because they are relevant to
the discussion which follows. The seven-minute rule applies only
to non-work related stops; it does not apply to work-related stops.
Additionally, the seven-minute rule applies only to freight
drivers, not mail drivers, because mail drivers are paid a flat
rate for each trip while freight drivers are paid hourly. The
seven-minute rule has not been reduced to writing. That being so,
it was necessary for both side's witnesses to testify about their
understanding of the rule and its application. Based on their
collective testimony concerning same, the undersigned believes the
seven-minute rule can fairly be stated thus: If a freight driver
makes a stop for a reason that the Company considers a non-work
related reason, and the stop lasts longer than seven minutes, the
Company treats it (i.e. the stop) as an unpaid 15-minute break. In
those instances, the Company essentially docks the driver's pay by
In deciding this contractual dispute, I will first address the
applicable contract language.
Since the application of the seven-minute rule results in a
forced break, I think that the logical starting point for purposes
of discussion is to ask rhetorically whether there is any contract
language dealing with breaks. That question is answered in the
negative. A review of the collective bargaining agreement
indicates it does not address the topic of breaks. This
contractual silence on same means that the parties have not
included language in their present agreement dealing with breaks.
Since the basic subject matter of this grievance involves a
work rule, the second point for purposes of discussion is to ask
rhetorically whether there is any contract language dealing with
the issuance of directives or work rules by management. There is.
A review of the collective bargaining agreement indicates that the
only contract language dealing with same is found in the
contractual management rights clause. It says:
. . .The Company reserves the right to publish reasonable rules
and regulations from time to time as it deems necessary and proper
for the conduct of its business so long as the same are not
inconsistent with the terms of this Agreement.
In my view, this language gives the Company the right to
unilaterally establish work rules which it deems necessary for its
business so long as they are 1) reasonable and 2) not inconsistent
with the collective bargaining agreement.
In this case, the Union does not expressly challenge the
reasonableness of the seven-minute rule, or contend that it is
inconsistent with a provision of the collective bargaining
agreement. Instead, the Union challenges the seven-minute rule on
the grounds that it was a change from what had occurred earlier.
The problem with this contention is that the record evidence shows
otherwise. Gutenberger's uncontradicted testimony on this point
was that the
seven-minute rule was unilaterally instituted by his father when he
was president of the Company (which was ten years ago). At a
minimum, this establishes that the seven-minute rule is not new.
Additionally, it appears from the record that freight drivers are
told of the rule when hired, and that it (the rule) has been
applied to them since it was instituted.
If the Union is contending that the Company's application of
the seven-minute rule was improper in a certain instance or set of
instances, it did not prove same. Consequently, no contract
violation has been shown concerning the seven-minute rule. In so
finding, it is expressly noted that the management rights clause
gives the Company the right to create reasonable work rules, and
the seven-minute rule has not been shown to be unreasonable.
Additionally, that rule does not conflict with the collective
bargaining agreement. As a result, the seven-minute rule passes
It is therefore held that the Company did not violate the
collective bargaining agreement by providing the drivers with
. . .
Having disposed of the Union's contentions that the Company's
actions violated the collective bargaining agreement, the final
question is whether the Company's actions violated what the Union
called "existing labor law". Arbitrators are usually reluctant to
delve into statutory questions unless the parties specifically ask
them to do so. In this case, the parties did not stipulate to the
contractual issues to be decided, much less expressly ask me to
address, and resolve, the question of the Company's compliance with
a federal statute. That being so, I have not been empowered by the
parties to address the Company's compliance with, as the Union put
it, "existing labor law." As a result, I have limited my
discussion to the contractual claims, and have not addressed any
In light of the above, it is my
That the Company did not violate the 1997-2000 collective
bargaining agreement by reducing the time it paid to Feene and
Olejnik for their Wausau mail routes. That grievance is therefore
That the Company did not violate the 1997-2000 collective
bargaining agreement by providing the drivers with unpaid breaks.
That grievance is therefore denied.
Dated at Madison, Wisconsin this 12th day of March, 2001.
Raleigh Jones, Arbitrator