BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL BEVERAGE SALES COMPANY
TEAMSTERS "GENERAL" LOCAL UNION NO.
Haus, Roman and Banks, LLP, by Mr. William Haus, 148 East
Wilson Street, Madison, Wisconsin,
53703, appearing on behalf of the Company.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Mr. John J. Brennan, 1555
Rivercenter Drive, Suite 202, P.O. Box 12993, Milwuakee, Wisconsin, 53212, appearing on
of the Union.
General Beverage Sales Company, hereinafter referred to as the Company, and
"General" Union Local No. 200, hereinafter referred to as the Union, are parties to a
bargaining agreement that provides for final and binding arbitration of grievances. Pursuant
request to initiate grievance arbitration the Wisconsin Employment Relations Commission
Edmond J. Bielarczyk, Jr., to arbitrate a dispute over pay. Hearing on the matter was held
Employer's facility in Oshkosh, Wisconsin on January 8th, 2002. Post
hearing arguments were
received by February 25th, 2002. Full consideration has been given to the
evidence, testimony and
arguments presented in rendering this Award.
During the course of the hearing the parties agreed upon the following issue:
"Was the Company required to pay its third shift
employees for Tuesday night June 12, 2001
to Wednesday morning June 13, 2001?"
"If so, what is the appropriate
Section 10.01. It is agreed that the management of
the Employer and its business and the
direction of the working forces are vested exclusively in the Employer, and that this
includes, but is
not limited to, the following: to direct and supervise the work of its employees; to hire,
transfer or lay off employees or demote, suspend, discipline or discharge employees; to plan,
and control operations; to determine the amount and quality of the work to be performed; to
the hours of work and assignment of duties; and to make and enforce reasonable rules. The
Employer's exercise of the foregoing functions shall be limited only by the express
provisions of this
contract and Employer has all the rights which it had at common law except those expressly
away in this Agreement and except as limited by Statute.
Section 10.02. The exercise
by the Employer of any of the foregoing functions shall not be
reviewable by arbitration except in case such function is so exercised as to violate an express
provision of this contract.
. . .
HOURS AND OVERTIME
Section 12.01. For the purpose of computing
overtime, the work week will begin at the beginning
of Wednesday and end at the end of Tuesday and consist of forty (40) hours; this is a
forty (40) hours per week for full-time employees but shall not be construed as a guarantee
number of hours of work in excess of forty (40) hours per week. In order for an employee
or be eligible for the forty (40) hour guarantee, the employee must be available for work.
Company will make reasonable effort to schedule an employee's work so that the employee
receive two (2) days off consecutively, preferably Saturday and Sunday.
Section 12.02. Time and one-half (1-1/2) shall be
paid for all work performed on Saturday
as such and double time shall be paid for all hours worked on Sundays and Holidays.
the Employer shall have the right to use part-time and/or temporary employees on Saturdays,
and holidays and shall not be obligated to call in and offer work on these days to full-time
Part-time and temporary employees will be paid at the straight time hourly rate for all hours
Further, over-time will not be paid to full-time employees on these days if the work
performed is part
of their regularly scheduled shift.
Section 12.03. Neither overtime pay nor premium
pay will be pyramided.
Section 12.04. It is recognized
that from time to time there is need for working overtime. There
will be no penalty for refusal on an individual basis to work overtime, but where all qualified
employees refuse, then the Company shall have the right to select the employee or employees
overtime starting from the bottom of the seniority list and if qualified, and the Company's
will be final. In any event, truck drivers shall be expected to complete their route.
. . .
SHIFTS AND SHIFT PREMIUMS
Section 24.01. Shifts will be posted and selected by
Seniority. Beverage first shift will normally
work five (5) days at 8 hours a day. Second shift will normally work five (5) days at eight
day. Third shift will normally work four (4) days at 10 hours a day. Drivers may work
either the four
(4) day or five (5) day shift depending on the work schedule. Premium pay will be paid at
of one and one-half (1-1/2) times for work done on these shifts in excess of forty (40) hours
workweek. The Company shall have the right to change shift schedules on seven (7)
written notice, except that in the case of an emergency, a shorter notice may be given. This
shall not apply to a modification of the hours of work, which, if modified, shall be by mutual
agreement between the parties.
Section 24.02. A shift
differential of twenty cents ($.20) per hour greater than that paid for
regular full-time work on the first shift will be paid for work done on the second shift. A
differential of twenty-five cents ($.25) per hour greater than that paid for regular full-time
the first shift shall be paid for work done on the third shift. To be eligible for shift
the employee must have begun work that day on that shift.
Section 24.03. When an employee, member of the
bargaining unit, is requested by the Company
to take the place of or assume the duties of a non-bargaining unit supervisor, the employee
receive a lead man differential of ten cents ($.10) per hour in addition to his regular rate of
. . .
MAINTENANCE AND STANDARDS AND RULES OF
Section 26.01. The Employer agrees that all
conditions of employment relating to wages, hours
of work, overtime differentials and general working conditions shall be maintained at not less
the highest standards in effect in Employer's unit at the time of the signing of this Agreement
conditions of employment shall be improved wherever specific provisions for improvement
elsewhere in this Agreement. This shall not apply to inadvertent or bona fide errors made by
Employer if corrected within ninety (90) days of notification by Union to Employer.
Section 26.02. In construing this Agreement, past
practice shall not be consider (sic) except to
the extent necessary in order to construe an express provision of this Agreement that is found
ambiguous, and past practice shall not be or become a part of this Agreement.
Section 26.03. Nothing shall
be deemed a past practice unless it meets each of the following
a) long continued;
b) certain and uniform;
c) consistently followed;
d) generally known by the parties
e) must not be in
opposition to the terms and conditions in this Agreement.
In the event that inclement weather
conditions, or some other "act of God" keeps you from
coming to work, you will receive your regular pay for the day or days taken off, provided
Company officially declares that it is closed for that day.
When you think the Company may be closed, you should listen to
the radio for announcements
or call the company directly. In Madison and Oshkosh, you should call the company's 800
message machine for information of a closing. Madison (800) 638-6048, Oshkosh
(800) 635-2995, Eau Claire (715) 834-1291 and Barron (715)
The Company operates a wholesale warehouse facility in Oshkosh, Wisconsin. The
has a third shift operation that commences work at approximately 5:00 p.m. and works until
a.m., with four ten (10) hour shifts, Monday through Thursday. The work week runs from
Wednesday to Tuesday, however, in the case of third shift employees, all work that
Tuesday is counted as Wednesday work. On the evening of Monday, June 11, 2001 there
area wide power outage caused by a storm in the Oshkosh area. This power outage
June 12, 2001 and the Company contacted all but three (3) of the third shift employees and
not to report to word due to the continued power outage. The three (3) employees that
to report to work found all the doors locked and returned home.
The Company's policy manual contains the following provision:
In the event that inclement weather weather
conditions, or some other 'act of god' keeps you
from coming to work, you will receive your regular pay for the day or days taken off,
Company officially declares that it is closed for the day."
Thereafter, the Company rescheduled the third shift employees to
work on June 13, 2001 and did not
pay any employees for the cancelled shift. The instant grievance was filed by the Union on
2001 and processed to arbitration in accord with the parties' grievance procedure.
The Union asserts the instant matter is straightforward. The Union argues
the Company has for
many years used a Company handbook which sets forth Company rules and policies. One of
policies is to pay employees for work days missed through no fault of the employees, at least
that workday is missed because of an "act of god." The Union acknowledges the Company
right to make and enforce reasonable rules. The Union points out these "reasonable rules"
in full force and effect for many years. The Union also points to language in Article 24,
Shift Premiums, covering the work day of third shift employees, a ten (10) hour day, and
will be paid at time and one half for work done in excess of forty (40) hours. In support of
position the Union also points to Article 26, Maintenance of Standards and Rules of
The Union argues employees were called and advised not to show up for
work. Those the
Company was unable to contact arrived to find the facility closed and locked up. The
where also called in to work Friday, their normal day off, and received no overtime pay.
avers that if the employees had been properly credited with hours worked for
all time worked on Friday (over 40 hours) would have been subject to Article 24.
The Union points out that employees who were assigned to work
first and second shift, even if they did not come into work, were
credited by the Company with enough hours to ensure them a forty
(40) hour work week. The Union points out the Company refused to
pay the third shift employees anything for the ten (10) hours they
would normally have worked. The Union also points out that Mark
Otto, Warehouse Manager, testified that the Company set a deadline
as to when power had to be up in order for third shift employees to
do business. When the power was not up by the deadline, employees
were called and told not to report to work. Those employees who
the Company were unable to contact arrived to find the doors
locked, the lights turned off, and no other cars in the parking
lot. It was obvious the facility was closed so the employees went
The Union also argues that Warehouseman Joe Weber testified he
approached Mark Otto and asked if the employees who showed up to
work would be paid and that Otto replied yes they would. While
Otto denied he made any such comment the Union points out Otto
acknowledged Weber made him aware he had arrived at the facility
the night before.
The Union also points out that Otto further testified that it
is unusual for third shift employees to work a Friday shift the
employees were directed to do so to make up for the lost
production. The Union stresses, first and second shift employees
got paid for not working due to the storm but third shift employees
were directed to actually work to get paid their normal forty (40)
hours of pay.
The Union concludes that despite the Company's attempt to
distinguish third shift employees and the ridiculous claim that the
plant was not "officially" closed, in order for the Company to
prevail the Arbitrator would have to ignore the clear plant closing
language, ignore the admission that third shift employees were
called and told not to report to work and ignore the admission the
call off was directly related to the storm. The Union would have
the Arbitrator credit the third shift employees with time not
worked due to an act of god and pay the third shift employees for
the Friday shift at time and one-half.
The Company contends the grievance fails to cite any violation of the collective
agreement and contends there is explicit contract language to support the Company's actions
instant matter. The Company argues that Article 24 allows it to change shift
schedules in the case of an emergency and contends a power outage that affected the
plant must be
considered an emergency that would justify a short notice of change of shift schedule.
The Company also disputes that the employees were told they
would be paid for the shift. The Company contends that even if they
were, it was an after the fact utterance, not relied on to anyone's
detriment and can not have the effect of a contractual commitment
by the Company. The Company also asserts it had an absolute and
explicit right under the terms of the contract to schedule and
require employees to report to work on Friday. The Company also
points out that additional compensation, premium pay, is not paid
for work performed on Saturday, Sunday or a Holiday if it is a part
of the regularly scheduled shift and forty (40) hours has not been
exceeded. The Company asserts there is no basis for extra pay under
the circumstances in the instant matter.
The Company also contends it honored the guarantee of a forty
(40) hour work week. The Company points out twenty-six (26)
employees received extra pay to make up for the guaranteed work
hours. The Company further argues that the Union belatedly claimed
the Maintenance of Standards provision was violated and it did not
state such a claim at the time the grievance was filed. The
Company argues the highest standard in effect was the forty (40)
hours of work guarantee and this was honored by the Company. The
Company argues that under the plant closing policy there must be an
"Act of God" that prevents employees from coming to work, yet three
employees actually came to the plant. The Company asserts the
Company must "officially" declare that it is closed and avers that
it did not do so in the instant matter. The Company also contends
it does not make sense to say bargaining unit employees are
entitled to both the forty (40) hour guarantee and the plant
closing policy. The Company also argues it can not be denied that
the power outage was an emergency and therefore the Company had the
right to reschedule the work.
The Company also contends considerations of equity warrant a
denial of the grievance. The Company points out that nineteen (19)
employees worked during the day in question and did not receive ten
(10) hours of pay. The Company contends the ten (10) employees who
did not work are attempting to receive a ten (10) hour windfall.
The Company contends the grievants are not attempting to maintain
standards but to push the envelope. The Company also points out
that the Union did not present any evidence that pay had ever been
granted to employees under similar circumstances.
The Company would have the undersigned deny the grievance.
The record herein demonstrates that the Company has had a long
standing policy that provides that if it officially closes because
of an "act of god" the employee will receive their regular pay for
the day or days taken off. The Oshkosh area suffered a major power
outage due to a storm during the week of June 11th, 2001. As a
result the Company's computers went down
and it was unable to provide work orders for its ten (10) warehousemen. The
Company then called
as many of the ten (10) as it could contact and told them not to report to work.
The Company has argued that it did not officially close. The
Arbitrator sees no merit in this argument. The Company sent home
all employees, including non-represented employees. Management
then turned off the all the lights, locked the doors and went home.
When three (3) of the employees arrived at the plant they found no
cars in the parking lot, no lights on and no doors open. The
Arbitrator concludes that when Management determined to turn off
the lights and lock all the doors it "officially" closed the plant.
All ten (10) employees were available for work. It was the Company
who told them not to work. Thus the Arbitrator concludes that the
Company violated the policy, a reasonable work rule, and thus
violated the collective bargaining agreement when it did not pay
the grievants for the ten (10) hours they were not worked because
of the plant closing.
The Company has argued that it could reschedule employees in
an emergency under Article 24.01. The Company can reschedule
employees, however, if it closed the plant, as it did herein, the
Company has to pay the employee the regular pay the employee would
have received had the employee worked. Any hours worked by the
employee over forty (40) would be at time and one-have rates. Thus
when the Company failed to pay the ten (10) warehouseman time and
one-half rates for hours worked the Friday-Saturday shift the
Company violated the collective bargaining agreement.
The Company has argued the Union failed to identify which
provisions of the collective bargaining agreement the Company was
alleged to have violated and this somehow requires a dismissal of
the grievance. However, the grievance form itself allows for "any
other relevant articles of the contract." Thus not all, or any,
specific contract provision must be cited by the Union in the
filing of the grievance.
The Company has also argued that the forty (40) hour workweek
guarantee overrides the issue herein and that as the Company only
worked the grievants for forty (40) hours the grievants are in
effect attempting to pyramid their wages. The Arbitrator finds no
merit in this argument. The Plant Closing Policy clearly provides
that if the employee is available for work and the Company closes
the Plant the employee will receive their regular pay. If the
Company desires to have additional work done during that workweek
it is at the Company's discretion.
Therefore, based upon the above and foregoing, and the
testimony, evidence and arguments presented the Arbitrator finds
the Company was required to pay third shift employees for the
Tuesday/Wednesday shift. The Company is directed to make the
grievants whole for all ten (10) hours and to pay the grievants a
half-time rate for hours worked on Friday/Saturday.
The grievance is sustained.
The Company was required to pay third-shift employees for Tuesday evening
through Wednesday morning (6-13-01). The Company is directed to make the grievants
all ten (10) hours and to pay them a half-time rate for hours worked on the Friday/Saturday
Dated at Madison, Wisconsin, this 15th day of May, 2002.
J. Bielarczyk, Jr., Arbitrator