BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PINELAWN MEMORIAL PARK
WISCONSIN LABORERS' DISTRICT COUNCIL,
UNION OF NORTH AMERICA, AFL-CIO, LOCAL UNION NO. 113
Ms. Christne Hentges, General Manager, Pinelawn Memorial
Park, 10700 West Capital Drive, Milwaukee, WI 53222, on behalf of the Employer.
Mr. John J. Schmitt, Business Manager, Laborers Local No.
113, 6310 West Appleton Avenue, Milwaukee, WI 53210, on behalf of the Union.
According to the terms of the 2001-2003 labor agreement between Pinelawn
(Employer) and Wisconsin Laborers' District Council, Laborers' International of Union of
America, AFL-CIO and its affiliated Local No. 113 (Union), the parties requested that the
Employment Relations Commission designate a member of its staff to serve as impartial
to resolve a dispute between them regarding whether the Employer should have paid
to two employees on August 4, 2001. The Commission designated Sharon A. Gallagher to
resolve the dispute. A hearing was scheduled and held on December 10, 2001, at
Wisconsin, where both parties were represented. No stenographic transcript of the
made. The Union requested to make an oral argument at the close of the case and the
requested to submit a letter brief in lieu of oral argument. Both of these requests were
the Arbitrator and the Employer submitted its letter brief on December 12, 2001, whereupon
record herein was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues should be determined by the Arbitrator
Did the Employer violate the collective bargaining agreement
failing to pay the two
Grievants time and one-half pay for work on Saturday, August 4, 2001? If so, what is the
1. STEADY WORKER, definition of: A steady worker is an employee
on the regular work of the cemetery and is listed as such by the Employer. The employee
possess sufficient experience, skill, ability, mental and physical vigor to perform all of the
regular types of work carried on in the cemetery in accordance with the established work
HOURS OF WORK. The normal work day shall consist of eight (8)
a twenty-four (24) hour period. The normal work week shall consist of forty (40) hours
be between seven-thirty (7:30) o'clock a.m. and four (4:00) o'clock p.m. Monday
Starting time may be changed by mutual agreement of the parties. In the event of an
accident or sickness of the immediate family or such emergency as may be mutually agreed
between the Employer and the Union, the Employer may alter the starting and quitting time
TIME OFF. Any employee who requests time off during the week
to which he
is not entitled by this Contract, and who is then asked by the Employer to make up said time
Saturday and agrees to do so, shall receive his regular hourly wages for said time worked on
as if he were working his regular schedule. If said employee refuses the Employer's
it shall be deemed sufficient cause to deny the employee's request for time off during his
OVERTIME PAYMENT. (A) Steady workers shall be paid one and
(1 and ½) times their straight pay for all hours in excess of forty (40) hours per week.
Steady workers shall be paid one and
one-half (1 and ½) times their straight pay for all hours
worked before seven-thirty (7:30) o'clock a.m. and after four (4:00) o'clock p.m., unless
is mutually agreed upon.
(B) Steady workers shall be paid
double their straight hourly rate for all hours worked on Sunday.
(C) Steady workers shall have
preference over seasonal workers for all available overtime.
1. The Employer shall pay steady workers who have completed one (1)
service for six (6) days of sick leave per year at their straight time hourly rate. Sick leave
cumulative from one calendar year to another with a maximum of thirty (30) days. Against
leave herein provided, the employee will be permitted to charge time off from work due to
beginning with the first (1st) day of illness. The Employer shall have the
right to satisfy itself of the
bona fide nature of a claim for paid sick leave prior to making payment. An employee will
required to submit to the Employer a written work release from an attending physician when
employee claims five (5) ore more consecutive sick days of leave.
The Employer agrees to pay 50% of unused
sick leave to be paid at the end of the year for steady
workers with thirty (30) days of accumulated leave.
The Employer will provide each steady
worker who qualifies for coverage pursuant to medical
underwriting requirements of the insurance carrier, a long term disability plan entitling the
employee to one-thousand ($1,000.00) dollars per month of benefits for a maximum of [sic]
twenty-four (24) month period of time. Steady workers may apply for this benefit after they
successfully completed their probationary period.
. . .
VACATION AND DAYS
1. (A) Steady workers shall be granted vacations in accordance with the
schedule: One (1) Year or more of service will entitle the employee to five(5) days of vacation.
Three (3) Years or more of service will entitle the employee to ten (10) days of vacation.
Years or more of service will entitle the employee to fifteen (15) days
(B) The steady workers who are presently employed
and who were hired prior to August 1, 1990
shall be entitled to vacation time off as follows: One (1) Year or more of service entitles the
employee to ten (10) days of vacation. Ten (10) Years or more of service entitles the
employee to fifteen (15) days of vacation. Fifteen (15) Years of service entitles the
to one (1) day of vacation each year after fifteen (15) years with a maximum of twenty-five
(25) days of vacation.
(C) Vacation pay shall be figures
[sic] on the basis of straight-time salary.
2. All full-time employees with one (1) or more years of service shall be
(1) additional day off per year with pay for personal reasons. This day shall be requested in
of the day off, subject to approval by the Employer.
3. All vacation schedules shall be submitted by employees to the
January I and April 1 of each year. Vacation shall be granted in favor of seniority by the
Vacation schedules may be altered after they have been submitted only, with the mutual
the employee and Employer. If the employee does not request vacation time off as herein
said time may be se [sic] by the Employer at his option. Vacation time may not be
one calendar year to the next and must be taken on [sic] terms of time off.
4. No vacation requests shall be made for time off during the months of
May, except in cases of accident or sickness of the immediate family, or such emergency as
mutually agreed upon between the Employer and the Union.
5. In compliance with the terms of seniority, no more than one (1)
employee will be
granted vacation at any one time, except in accident or sickness of the immediate family or
emergency as may be mutually agreed upon between the employer and the Union.
6. Any individual's days off shall be requested by the employee at least
one (1) week
in advance of the day sought, except for cases of emergencies, the determination of which
7. Individual days off shall be restricted to one employee off at any one
including employees absent because of vacation or sickness, except in cases of accident or
of the immediate family, or such emergency as may be mutually agreed upon between the
and the Union.
The two Grievants, Curtis Swanson and Daniel McAloon, 1/ are laborers employed
workers" under the parties' labor agreement. Swanson has been employed by the Employer
1974. On August 1, 2001, in the afternoon, General Manager Christne Hentges had a
with McAloon and Swanson. As the day was extremely hot, Hentges asked McAloon and
if they would like to leave work a couple of hours early that day. (Hentges was concerned
August 1st was such a hot day, that doing further work in the afternoon
might subject these employees
to heat stroke.) Swanson and McAloon asked how they could leave early on that day --
Employer would pay for their time. Hentges stated that they would have to take vacation
or take unpaid leave. McAloon and Swanson agreed to take vacation time for the remainder
day, 2.25 hours each.
1/ McAloon did not testify
Some time thereafter, Hentges asked McAloon and Swanson if they would work the
Saturday, August 4, 2001. During this conversation, Swanson stated that no mention was
whether they would be paid time and one-half for the Saturday work, although Swanson
he thought he would be paid time and one-half for the hours worked on Saturday. 2/
Swanson agreed to work on Saturday, August 4, 2001.
2/ These employees had also used vacation
time earlier in the year to get off on Good Friday afternoon. Both
employees had vacation time left as of August 1, 2001.
Hentges stated that it has been the Employer's position that vacation does not count
worked in a 40-hour week under the contract. Both the Employer's President,
Mr. Toson, and
General Manager Hentges indicated that the Employer has never paid time and one-half for
unless the employee had actually already worked at least 40 hours in the week. 3/
August 4, 2001, Swanson and McAloon, who worked a total of 3.25 hours each, received 1
overtime pay at time and one-half and 2.25 hours at straight time, the latter straight time was
up for the 2.25 hours Swanson and McAloon took off on August 1st.
3/ Mr. Toson has owned the cemetery for the
past 13 years and stated that he has been consistent on this point.
The Union offered no evidence to contradict Mr. Toson's or Ms. Hentges'
Hentges stated that this issue has come up in the past and that during negotiations for
effective labor agreement, the Employer asked the Union if it would consider changing
Section 3, to reflect the Employer's past practice of not counting sick leave and vacation time
worked under Article II. Initially, the Union agreed that they would consider making a
Article II, Section 3. However, toward the end of negotiations, Union Representative
that the Union would not agree to any change in Article II, Section 3; and that there
would be a
grievance regarding the Employer's interpretation of that section if problems occurred in the
The Employer never made a written proposal regarding any change to Article II, Section 3,
language thereof remained unchanged in the effective labor agreement.
The Employer offered records regarding the amount of time unit employees have
and the make-up time employees worked at straight time in the year 2001. The evidence
that Grievant Swanson took vacation on May 4, 23 and October 31, 2001, all of which
Article VI, Sections 4 or 6 of the contract, yet the Employer allowed Swanson the time off.
also worked 2.5 hours of Saturday make-up time at regular straight pay pursuant to Article
Section 3, to make-up for some of the regular hours of work he missed in May and October.
addition, on 11 occasions during 2001, senior employee Robert Brehmer also used vacation
violation of Article VI, Sections 4 or 6, and he was asked and agreed to make-up some of
at regular straight pay on 4 occasions for a total of 8.5 hours of Saturday work paid at
pay during 2001, pursuant to Article II, Section 3.
POSITIONS OF THE PARTIES
The Union chose to give oral argument following the close of the hearing in this
Union stated that it has had a contract with the Employer since 1957. The Union urged that
contract contains vacation and sick leave entitlements for employees, they should be able to
vacation and sick time for "all hours" up to 40, entitling them to overtime thereafter. The
noted that the Employer can refuse to grant an employee time off; and that there is at least
employee (Brehmer) who has used both his vacation and sick leave in order to take care of
appointments. The Union argued that an employee should not have to work if he does not
or cannot do so and that employees should be entitled to unfettered sick leave and vacation,
contract. The Union also argued that the Employer was merely attempting to receive
arbitration case, what it could not achieve in collective bargaining because the Union refused
change the language of the effective labor agreement at Article II, Section 3.
Therefore, the Union urged that the Grievants should be paid time and one-half for
hours that they worked beyond their regular work week on Saturday, August 4, 2001. This
require that the Employer pay Swanson and McAloon time and one-half pay for 2.25 hours
On December 12, 2001, the Employer submitted a written brief which can be
follows. The Employer urged that it was within its rights to pay the Grievants 2.25 hours at
time for work they performed on Saturday, August 4, 2001. The Employer noted that State
Federal laws indicate that an employee must actually work all hours up to 40 in order to be
under law to overtime pay. Therefore, the Employer was within its statutory rights in
count the 2.25 hours that McAloon and Swanson took off during the day on August
1st as time
"actually worked" during the work week ending August 4th.
In addition, the Employer noted that the contract specifically states at Article II,
that steady workers "shall be paid one and one-half (1 and ½) times their straight pay
for all hours
in excess of forty (40) hours per week." This language, the Employer urged, supported its
in this case. In addition, the Employer contended that it has consistently required employees
actually work 40 hours in a week before they are paid any overtime payment. The Employer
"we do not, and have not, counted any time off for calculating time 'actually worked.'"
The Employer noted that its union employees have violated their contract countless
regarding vacation usage (Article VI, Sections 4 and 6) and that the Employer has never
issue of it; that this case should never have come to arbitration; and that the Employer has
violated the contract, as alleged, in any manner by paying the Grievants 2.25 hours at
rates for work performed on August 4th, as such pay was consistent with
the Employer's past
practice. The Employer, therefore, sought dismissal of the grievance.
Article II, Section 2, states that the normal work week "shall be . . . Monday
and it defines the length of the normal work day as 8 hours and the normal work week as 40
Article II, Section 4, states that employees shall be paid time and one-half "for all hours in
forty (40) per week." However, Article II fails to define "all hours" -- to state whether
than work hours can be counted toward the total of 40 hours per week required by Article II,
Thus, Article II, Section 4 of the contract is ambiguous. It is axiomatic in labor
that where contractual ambiguity exists, other contractual provisions as well as evidence of
practice and bargaining history may become relevant to fill in the blanks in the ambiguous
of the contract.
There are two types of past practices recognized in labor law which are separate and
One type of practice is not addressed in the labor agreement; it exists apart from any
provision of the
labor agreement. This type of practice may be revoked by either party upon timely notice of
repudiation. The other type of practice, a "contract-based" past practice,
concerns subject matter covered by the contract; it exists to clarify some contractual
contract-based practices are essential to an understanding of ambiguous contractual
time the contract-based past practice becomes an integral part of the ambiguous provision;
and it will
be binding on the parties during the life of the agreement even though the practice is not
stated anywhere in the contract. "Contract-based" past practices cannot be revoked by mere
repudiation. Rather, such a practice can only be terminated by mutual agreement of the
rewrite the ambiguous provision to clearly eliminate the practice or to eliminate the
The clearest, most persuasive description of the operation of a contract-based past
vis a vis one parties' attempted repudiation thereof was written by Arbitrator
Richard Mittenthal 4/
That description reads in relevant part as follows:
. . .
Consider next a well-established practice
which serves to clarify some ambiguity in the
agreement. Because the practice is essential to an understanding of the ambiguous provision,
becomes in effect a part of the provision. As such it will be binding for the life of the
the mere repudiation of the practice by one side during the negotiation of a new agreement,
accompanied by a revision of the ambiguous language, would not be significant. For the
alone would not change the meaning of the ambiguous provision and hence would not detract
the effectiveness of the practice.
It is a well-settled principle that where past
practice has established a meaning for language that
is subsequently used in an agreement, the language will be presumed to have the meaning
given it by
practice. Thus, this kind of practice can only be terminated by mutual agreement, that is, by
parties rewriting the ambiguous provision to supersede the practice, by eliminating the
. . .
In addition, WERC arbitrators have adopted Mittenthal's analysis in cases involving the
repudiation of a contract-based past practice by one party to a labor agreement. Brown
(Sheriff's Department), Case 567, No. 52381, MA-8942 (Buffett, 12/95); Barron County
(Sheriff's Department), Case 118, No. 50790, MA-8382 (McLaughlin, 6/95). These cases
that a contract-based past practice which fills in the blanks in an ambiguous contract
be eliminated except by mutual agreement to change the contract language. See also, Wood
(Nurses), Case 113, No. 48253, MA-7555 (Greco, 6/93); Douglas County (Middle River
Health Care Center), Case 177, No. 44909, MA-6453 (Engmann, 8/91).
4/ Past Practice and the Administration
of Collective Bargaining Agreements, 14th Annual Meeting of the
National Academy of Arbitrators, pp. 30-58, 56 (BNA, 1961).
In the instant case, the evidence was undisputed herein that for at least the past 13
Employer has had a past practice of only paying overtime pay to employees who have
worked at least 40 hours in the work week and that the Union has never before filed a
this issue. The business records offered by the Employer herein also support its assertions in
case, that employees have made up regular hours in a 40-hour week under Article II, Section
the Grievants did on August 4th. Thus, the Employer's long-standing,
mutually agreed upon past
practice regarding the administration of Article II, Sections 2 and 3, support a conclusion
hours" as used in Article II, Section 4, must be read to mean hours actually worked by the
Article II, Section 3, provides a procedure whereby an employee who has taken time
violation of the contract (i.e., Article VI, Sections 4 or 6), can agree to "make up said time
Saturday" if requested by the employer. In that event, the employee "shall receive his
wages for said time worked on Saturday, as if he were working his regular schedule." It is
undisputed on this record that under the provision, employees have been consistently paid
time for all hours made up. In the Arbitrator's view, the language of Article II, Section 3,
application over time by the Employer provide strong evidence that the parties intended the
hours" in Article II, Section 4, to mean hours actually worked by the employee.
The Union argued that the Employer was attempting to gain through grievance
what it had failed to achieve during collective bargaining negotiations over the effective labor
agreement. In this regard, I note that the facts demonstrated that the Employer attempted to
clarification of the labor agreement, essentially to codify the past practice that it had been
over at least the last 13 years, to make it clear that the reference to "all hours in excess of
hours per week" in Article II, Section 4, meant hours actually worked by the employee, not
taken off for vacation or sick leave. The Union refused to modify the 2001-2003 labor
to accommodate the Employer on this point.
I have found above that the labor agreement at Article II, Section 4, is ambiguous but
ambiguity regarding what constitutes a 40-hour week has been filled in in the past by both
Employer's practice of paying straight time pay to employees making up time they took off
the work week under Article II, Section 3, as well as by the Employer's consistently paying
one-half only after 40 hours of actual work in the week. The Union did not offer any
evidence to the
contrary, to support its argument that the work week should include hours taken off for sick
and vacation for purposes of overtime pay.
In these circumstances, the Employer was not required to codify the past practice
Article II, Sections 2, 3 and 4, in order to gain a clarification thereof. Here, the
without gaining the Union's agreement to modify the contract, continue its practice of paying
overtime only after 40 hours of actual work in a work week, as the Employer's approach is
not only by a contract-based past practice but also by the clear language of Article II,
Therefore, the Union's argument regarding bargaining history must fail along with its attempt
repudiate the practice.
The Union has argued that because the contract contains vacation and sick leave
employees should be able to take the vacation and sick leave to which they are entitled and
hours taken off should count toward the 40-hour per week threshold necessary for hours
after 40 to be paid at time and one-half. Based on the above analysis of Article II, Sections
4, as well as the Employer's practice of paying overtime only after 40 hours are worked and
submitted records herein showing straight time payments, the Union's argument must fail.
offered no documentary or testimonial evidence to support this argument and it did not
contrary evidence proffered by the Employer. Furthermore, the contract does not otherwise
the Union's assertions herein.
Finally, the facts surrounding the grievance also support denial of this grievance.
Grievants agreed to take vacation time rather than non-paid time on August
1st in order to take 2.25
hours off on that hot afternoon. The Grievants also agreed to work the following Saturday,
4th, and did so without getting any guarantee or having any conversation to
indicate that they would
be paid overtime for the Saturday work. I note that one of the Grievants, Swanson, had
work time he had missed under Article II, Section 3, in the past so that he must have
been aware of
the Employer's past practice of paying straight time pay for made-up work on Saturdays.
Based upon the relevant evidence and argument in this case, I issue the following
The Employer did not violate the collective bargaining agreement by failing to pay
Swanson and McAloon time and one-half for 2.25 hours of work on Saturday, August 4,
grievance is therefore denied and dismissed in its entirety.
Dated in Oshkosh, Wisconsin, this 18th, day of January, 2002.
Sharon A. Gallagher, Arbitrator