BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LABORERS' UNION, LOCAL NO. 1440
MID-STATES CONCRETE PRODUCTS
Mr. Daniel Burke, Business Manager, Laborers Local 1440,
appeared on behalf of the Union.
Mr. Kevin Wald, Representative, Mid-States Concrete Products,
appeared on behalf of the Company.
The above-captioned parties, hereinafter the Union and Company respectively, are
a collective bargaining agreement which provides for final and binding arbitration of
Pursuant to a request for arbitration, the Wisconsin Employment Relations Commission
the undersigned to decide a grievance. A hearing, which was not transcribed, was held on
2002, in Beloit, Wisconsin. The parties did not file briefs. Based on the entire record, the
undersigned issues the following Award.
The undersigned frames the issue as follows:
Did the Company violate the collective bargaining agreement
when it failed to offer the grievant
the overtime work available on Sunday, March 3, 2002? If so, what is the appropriate
The parties' 2001-2004 collective bargaining agreement contains the following
Section 1. Seniority rights shall prevail at all
during the life of this Agreement provided
ability and skill are reasonably equal.
. . .
Section 5. Seniority shall prevail when extra
is available; provided, however, the
employee has worked all regularly scheduled hours during the week or has excused absences
hours missed. If a particular job is customarily performed by a particular employee, he shall
first opportunity to perform said extra work.
The Company manufactures flexicore concrete slabs. The Union is the exclusive
bargaining representative for the Company's laborers. The grievant in this case, Randy
Olson, is a
member of that bargaining unit.
Olson has trouble moving his left shoulder due to a torn rotator cuff. It is a painful
In January, 2002 (all dates hereinafter refer to 2002), his doctor imposed a restriction on
could do at work. The restriction was that he was limited to lifting 10 pounds or less. On
4, his doctor imposed another restriction on what he could do at work (in addition to the one
noted). The second restriction was that he was not to lift anything to his shoulder level or
These restrictions were in effect through at least March 4. Company representative
Kevin Wald was
aware of Olson's shoulder condition and his work restrictions.
On February 14 and 15, Olson was absent from work because of shoulder pain.
On February 27, Olson brought a note in from his doctor that said that his (Olson's)
pain was not subsiding, that he could not sleep, and that he (Olson) was going to have an
(Magnetic Resonance Imaging) test done on his shoulder. The doctor then requested that
"accommodated" at work.
On Friday, March 1, Olson took a day of sick leave. That morning, he had an MRI
performed on his shoulder. Early that afternoon, Olson took the MRI paperwork into work
it to Wald.
On Tuesday, March 5, Olson had another doctor appointment concerning his
time, the doctor imposed a third work restriction (in addition to the two already noted). This
restriction was that he was not to work more than eight (8) hours daily.
Olson had surgery on his shoulder on April 26.
On Friday, March 1, Company officials Kevin Wald and Hagen Harker discussed
removal arrangements for the upcoming weekend. They did so because the weather forecast
heavy snow. In the course of their discussion, they made the following decisions concerning
First, they decided to use Company employees to remove the snow from their large job site.
past, the Company had sometimes used an outside contractor to perform snow removal. This
though, it was decided to not use the outside contractor, but instead have Company
that work. Second, they decided to have four employees perform this work on either
Sunday in eight hour shifts. They decided that, for safety purposes, two employees would
together. Specifically, two employees would be on the first shift and two employees would
be on the
second shift. Third, they decided that the employees who worked these shifts were to
following tasks: they were to plow snow for two hours with an endloader, and then they
were to go
inside the shop and cut steel rebar for two hours. Additionally, when they were in the shop,
were to periodically go outside and shovel snow off the sidewalks by hand. Fourth, they
which employees would perform this overtime work.
This last decision (namely, who would perform the overtime work) was made as
First, Wald and Harker decided to use maintenance employees to perform this work.
making that decision, they consulted a seniority list to determine who the most senior
employees were. One of the senior employees on this list was Olson. Olson has done snow
work in the past. Third, Wald and Harker decided that notwithstanding Olson's high
the fact that he had done snow removal work in the past, he would not be offered this
overtime work. Their rationale for doing so was this: they knew that Olson was still on
duty because of his shoulder injury, and they did not want him to aggravate his injury by
work in question. In their view, the work which was problematic for Olson to perform was
plowing snow with the endloader; it was cutting rebar. Steel rebar weighs 28 pounds, and
a 10-pound weight restriction. They thought cutting rebar (a process which involves lifting
aggravate Olson's shoulder injury. Additionally, they knew that it is Company policy to not
restricted duty work overtime, and Olson was on restricted duty. Fourth, another
Bill Carpenter, was offered the overtime, but he declined it. Fifth, after Wald and Harker
not offer the overtime work to Olson, and Carpenter declined to work it, the overtime work
ultimately offered to the following four employees who accepted it: Richard Lance, Scott
Chuck Engen and Bob Buckner. Olson has more seniority than all of these employees but
As expected, it snowed over the weekend of March 2 and 3. After reviewing the
forecast, Wald decided to have the four employees work on Sunday rather than Saturday.
The overtime work done on Sunday, March 3 was performed as planned. Lance and
worked the first shift and Engen and Buckner worked the second shift. Each shift lasted
All four employees did the following work: they plowed snow with an endloader for two
then they went inside the shop and cut rebar for two hours. When they were in the shop,
periodically went outside and shoveled the sidewalks by hand.
When Olson went into work the next day (Monday, March 4), he saw that some
yard had already been plowed.
That day, Olson was assigned the task of plowing snow with an endloader. He
work as assigned. He did the same work for the following three days. Thus, he plowed
March 4, 5, 6 and 7. When he plowed snow on those four days, what he did was
this: he pushed the
snow into piles with his endloader, and then loaded it (with his endloader) into semi-trucks
it could be hauled away. He did not shovel any snow by hand that week. Additionally, he
cut any rebar that week either.
Olson filed a grievance which contended that he should have been offered the Sunday
overtime work. The grievance was not resolved, and was ultimately appealed to arbitration.
At issue here is whether the Company had to offer Olson the overtime work available
Sunday, March 3. The Union contends that it did while the Company disputes that
Based on the rationale which follows, I find that the Company did not have to offer him the
My discussion begins with an overview of the applicable contract language. The
language which the Union claims the Company violated here is the seniority provision.
Section 1 of
that provision provides that "seniority rights shall prevail at all
times . . .provided skill and ability are relatively equal." The first
sentence of Section 5 then goes on
to repeat this same principle ("seniority shall prevail") and applies it to a specific kind of
"extra work". The rest of that sentence then establishes a pre-condition for this to happen
for seniority to prevail for the extra work). The pre-condition is that the employee must
all regularly scheduled hours during the week or have an excused absence for the hours
The meaning of this language is not disputed. Both Sections 1 and 5 provide in plain
that seniority "prevails." When the term "prevail" is read in its overall context and given its
commonly-accepted meaning, it means to be predominate. This language therefore
a senior employee has predominance over a less senior employee. That is supposed to be the
rule. Section 5 makes it especially clear that seniority applies "when extra work is
the phrase "extra work" is not defined in Section 5, the phrase is certainly broad enough to
Sunday overtime work. Thus, "extra work", such as Sunday overtime, is supposed to go to
In situations like this where the contract language is clear and unambiguous, the
job is to apply its plain meaning to the facts. Attention is now turned to making that call.
In this case, the outcome depends on what facts are relied on. The following shows
From the Union's perspective, the only facts pertinent to this case are the ones
Olson's seniority and the type of work involved. With regard to the former (i.e. Olson's
the Union notes that Olson has more seniority than three of the employees who were selected
the overtime work. With regard to the latter (i.e. the type of work involved), the Union
the work done on Sunday, March 3 was snow plowing, and that Olson has done snow
plowing in the
past. It further asserts that he could have done it on Sunday, March 3. Building on all these
the Union asserts that Olson should have been offered the opportunity to work the Sunday
If the facts just noted were the only facts pertinent here, the Union would have a
case, so to speak. What I mean is that if those facts were the only ones pertinent here, the
would have indeed been contractually obligated to offer Olson the overtime work, just as it
Carpenter, because no reason existed for not following seniority. However, as was noted in
BACKGROUND section, there is more to this story.
Other facts yet to be reviewed trump the
presumption just noted that Olson had to be offered the overtime work in question.
What I am referring to, of course, is Olson's shoulder condition and his
restrictions. The Company knew that as of Sunday, March 3, Olson was still under the
work restrictions due to his shoulder condition: he was not to lift more than 10 pounds and
not to lift anything to his shoulder level or above. These medical restrictions prevented
doing at least one part of the work which management wanted done on Sunday, March 3.
following shows this.
One task which management wanted done that day was to have snow plowed with an
endloader. Olson could do that work, even with his work restrictions, because it just
in the endloader and operating it. According to Olson, operating the endloader did not
shoulder. Another task which management wanted done that day was to shovel snow off the
sidewalks by hand. It is unclear whether Olson's work restrictions allowed him to do that
whether doing it would aggravate his shoulder. Be that as it may, it does not matter. The
this. The final task which management wanted done that day was to have the employee cut
That task involves lifting the rebar which weighs 28 pounds. Since Olson had a 10 pound
restriction, it is obvious that if he lifted any rebar, he would violate that weight restriction.
The foregoing shows that Olson could not do all the work which the
Company wanted done
on Sunday, March 3. While he certainly could operate the endloader and plow snow with it,
not lift and cut rebar because of his 10 pound weight restriction.
The reason this point is important is because employees do not get to pick and choose
work they will perform; the employer gets to make that call. In this case, the Company's
representatives decided that they needed three tasks done on Sunday, March 3: plow snow
endloader, shovel the sidewalks by hand and cut rebar. That was their call to make. To be
for this overtime work, the employee had to be able to perform all three tasks. If Olson
the latter task (cutting rebar), he would violate his weight restriction. That being so, the
had a justifiable basis for concluding that Olson could not perform that task. This made him
for the overtime work done on March 3.
In so finding, I am well aware that on the very next day (Monday, March 4), and for
three days as well (March 5, 6 and 7), Olson performed the task of plowing snow with an
In his view, this proves that he could have done the work done on Sunday, March 3. He
rhetorically why he could plow snow on those four days, but not on the previous Sunday
would have been more financially lucrative because it paid double time. I certainly see his
However, the work which Olson did on March 4-7 was not the same as the work done on
March 3. As previously noted, the employees who worked on Sunday, March 3 did all three
(plow snow with an endloader, shovel the sidewalks by hand and cut rebar). During the
March 4-7, Olson did not shovel snow by hand or cut rebar in the shop. Instead, he simply
snow. In making this statement, I am not
minimizing the work Olson did that week. I am simply showing that there was a
distinction, even if
it was a small one, between the work Olson performed on March 4-7, and the work
performed by the
other employees on Sunday, March 3.
Based on the above rationale, I have found that Olson was ineligible for the overtime
in question. To repeat, the reason he was ineligible was because the Company decided that
needed three tasks done that day, one of which was cutting rebar, and Olson could not do
because of his shoulder condition and weight restriction. The fact that he could, and later
snow with an endloader does not carry the day, so to speak, because that task was just one of
that the Company wanted performed that day. To be eligible for the overtime, Olson had to
to perform all three tasks, and he could not because of his doctor-imposed work restriction.
being so, the Company did not have to offer him the overtime work in question.
In light of the above, I issue the following
That the Company did not violate the collective bargaining agreement when it failed
the grievant the overtime work available on Sunday, March 3, 2002. Therefore, the
Dated at Madison, Wisconsin, this 19th day of June, 2002.