BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 43
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Andrea F. Hoeschen, 1555 North Rivercenter Drive, Suite 202, P. O. Box
12993, Milwaukee, Wisconsin 53212, appearing on behalf of the Union.
Michael, Best & Friedrich, by Attorneys Stacie J. Andritsch and John
Lavine, 100 East Wisconsin Avenue, Suite 3300, Milwaukee, Wisconsin 53202-
4108, appearing on behalf of the Employer.
Supervalu, Inc. of Pleasant Prairie, Wisconsin, hereinafter Company, and Teamsters
43 of the International Brotherhood of Teamsters, hereinafter Union, are parties to a
bargaining agreement that was in effect at all time relevant to this proceeding which provides
and binding arbitration of certain disputes. A request to initiate grievance arbitration was
the Commission on January 10, 2002. Commissioner Paul A. Hahn was appointed to
act as arbitrator
on February 6, 2002. The hearing took place on April 24, 2002 at the Company in
Wisconsin. The hearing was transcribed. The parties were given the opportunity to file post
briefs. Post hearing briefs were received by the Arbitrator on July 3, 2002 (Company) and
2002 (Union). The parties were given the opportunity but chose not to file reply briefs. The
was closed on July 5, 2002.
The parties stipulated to the following issue:
Did the Company violate the collective bargaining agreement?
If so, what is the appropriate remedy?
ARTICLE 6. - MANAGEMENT RIGHTS
6.01 The Union recognizes those rights and
responsibilities which belong solely to the
Employer, including, without limitation on the generality of the foregoing, the right to
Employer's business and to direct the work and the working force; the right to hire
employees of its
own selection; the right to maintain order and efficiency; the right to extend, maintain,
terminate the trucking, warehouse and/or garage operations of the Employer and the
work; the right to determine the number of shifts, the number of days in the workweek,
hours of work
and the number of persons to be actively employed by the Employer at any time; the right to
or introduce new or improved trucking, warehouse and/or garage methods or facilities; the
determine the number, length and location of truck routes and the right to split, cut,
eliminate a route or routes; the right to discipline, transfer, promote, suspend or discharge
for proper cause and lay off employees for lack of work or other proper reasons: the right to
work, including overtime work and work on Saturdays, Sundays and holiday; the right to
and maintain rules and regulations; and the right to set standards of a fair day's work and to
performance records for all jobs. All rights, powers or authority the Employer had prior to
this Agreement with the Union are retained by the Employer, except those specifically
or modified by this Agreement.
7.01 DEFINITION Seniority
is defined as the length of continuous full-time service with the
Employer while working under the jurisdiction of this Agreement. Drivers, warehouse,
mechanic and maintenance mechanic employees shall each be separate seniority groups.
. . .
TRANSFERS Temporary transfers of more than one (1) hour will be made
. . .
ARTICLE 12. SAFETY OF
ACCIDENTS AND REPORTS
. . .
12.02 Under no circumstances
will an employee be required or assigned to engage in any activity
involving dangerous conditions of work or danger to person or property in violation of an
statute or court order, or governmental regulation relating to safety of person or equipment.
. . .
12.07 A safety committee
comprised of stewards or alternates shall periodically meet with
management to discuss and find avenues to alleviate safety problems that may arise.
. . .
ARTICLE 14 WORKDAY AND
. . .
14.09 CALL-IN Any
full-time warehouse, garage mechanics and maintenance mechanic
employees who are called in to work outside their regular scheduled shift and do so report
guaranteed four (4) hours pay and any driver employees who are called in to work outside
scheduled shift and do so report shall be guaranteed six (6) hours pay. Such call-in pay
provision does not apply in any situation where call-in time is consecutive with employees'
scheduled shift. Time and one-half (1 ½) premium pay shall only apply when such
in to work meet requirements in section 14.05 above.
. . .
SUPERVALU AND TEAMSTERS LOCAL #43
WAREHOUSE, MAINTENANCE & GARAGE OVERTIME
Departments shall be defined as:
RECOUP / SANITATION
REPACK / CIGARETTES
. . .
5th (as it applies to 4
day-per-week work schedules) 6th &
OVERTIME REQUIRED BY THE EMPLOYER
The Company shall seek volunteers:
1. By seniority
from the same
If additional volunteer employees
are required, then:
2. By seniority from the same
If additional volunteer employees
are required, then:
If additional volunteer employees
are required, then:
Mandatory overtime for all supplemental associates from the same classification
qualified to perform the work available.
additional volunteer employees are required, then:
5. By reverse order of seniority
from the original department.
non-guaranteed employees qualified to perform the work available will be
required to work in any department prior to the 80% guaranteed employees being
required to perform such work.
Associates will be scheduled to work unless excused in advance for
legitimate reasons by the appropriate Resource Manager.
. . .
STATEMENT OF THE
This grievance involves Supervalu, Inc. and Teamsters Local
Union No. 43. (Jt. 1) The Union
alleges that the Company violated the collective bargaining agreement by failing to assign the
Grievant, a sanitation department employee, to move pallets, a task normally assigned to the
sanitation department, on the Grievant's regular scheduled off days of September 17
and 18, 2000.
The Company operates a grocery warehouse operation in Pleasant Prairie, Wisconsin.
parties agree that there are few factual disputes in this case. The Company has operated its
Prairie Warehouse operation since about 1990. Product is shipped into the warehouse five
week and shipped out of the warehouse seven days a week. The parties sit down annually to
determine an appropriate shift bid which determines the number of employees assigned to
per shift and within each department. The employees are then permitted to bid for these jobs
shifts based on their seniority. Staffing needs and weekly schedules are determined on a
contemporary daily and weekly basis throughout the year.
Approximately two to three weeks before a scheduled shift, warehouse supervisors
make a workload
projection based on historical data. That data is contrasted with the shift bid configuration
account the number of scheduled vacations, leaves of absence, light duty assignments etc. to
determine whether "extra day" overtime is required. Extra day overtime is work assigned to
employee on their scheduled day off. When a determination is made that such extra day
be required, the Company posts a notice approximately one week in advance and offers the
in accordance with the letter of understanding set forth under the relevant contract provisions
above. (Jt. 4 & 5)
The Company also has employees who do not obtain a job bid who become part of a
warehouse "pool" staff and are assigned work as needed. Daily adjustments are often made
employees from the pool particularly when employees do not show up for their assigned
The Company ships and receives product on pallets. Customers of the Company tend
stockpile pallets and can return them to the Company at any time and at their discretion. On
September 10, 2000 the Warehouse Superintendent reviewed his needs for extra day overtime
various departments for the following week which included September 17 and 18. After
the information, the Warehouse Superintendent determined that he would not have a need for
day overtime in sanitation but would have such a need in grocery/shipping and put up an
posting for shipping only. When the Warehouse Superintendent reported for work on
2000 he found a large number of returned pallets which arguably were clogging up the
and compromising the efficiency and safety of the operation. (Er. 12) The Warehouse
saw an immediate need to move these pallets which, importantly, is normally a sanitation
Grievant works in the sanitation department and his regularly scheduled days off were
and 18, 2000. Before he finished his work week the Grievant had asked his supervisor if
any overtime on his days off (September 17 and 18) and was told that no overtime was
Warehouse Superintendent did not call the Grievant to come in on September 17 or 18 and
used two employees, one on each day, who had bid for overtime on the
17th and 18th because they
were employees in grocery/shipping for which overtime was scheduled on September 17 and
4 & 5)
The Company admittedly did not call the Grievant to work those two days as it
removal of pallets as unanticipated overtime and the Company is not required to call in
and can transfer employees already on the Warehouse premises to move the pallets. The
the position that the clear contract language including the letter of understanding regarding
required the Company to call the Grievant and give him the opportunity to work the overtime
September 17 and 18 because Grievant was available to do the pallet removal, sanitation
The Union filed the grievance in this matter on September 22, 2000. The Grievance
denied by the Company on September 25, 2000. The parties failed to achieve resolution
through the grievance procedure and the matter was appealed to arbitration. Hearing
in this matter
was held by the Arbitrator on April 24, 2002 in Pleasant Prairie, Wisconsin. No issue was
to the arbitrability of the grievance.
POSITIONS OF THE PARTIES
The Union takes the position that there is no ambiguity in the contract language; the
of Understanding covers overtime on the sixth and seventh day of a workweek, in this case
September 17 and 18, 2000. Nor, the Union argues, is there any contract language that
Company the right to make temporary transfers to abrogate the clear language of the Letter
Understanding. The Union counters the Company argument that the removal of pallets is
unanticipated overtime that is not subject to the Letter of Understanding by arguing that
the labor agreement is there any language that distinguishes between anticipated overtime and
unanticipated overtime. The Union argues that the Letter of Understanding applies to
Article 7 (Transfers) applies to assignments made on straight time.
The Union takes the position that the Company's argument that there is a
practice applying the Letter of Understanding only to planned overtime is contrary to the
contract language of the Letter of Understanding that applies to overtime with no distinction
anticipated or unanticipated overtime. The Union argues the standard arbitrable doctrine that
practice cannot modify clear contract language. The Union submits that there has been no
agreement between the Union and the Company to amend the Letter of Understanding. The
argues that the overtime procedure that was revised in 1999 defeats any past practice claim
provides that management will contact employees for overtime work if the work is posted
after a shift
has departed for the day, outlining specific circumstances where employees will or will not
contacted for overtime. The Union takes the position that the call-in provisions of Article 14
that employees will be contacted for "work outside their regular scheduled shift." Thus, the
argues, the contract, the Letter of Understanding and the overtime posting procedure are
with the Union's position that the Company must attempt to call in an employee from the
in which the overtime work arises.
Concerning the Company's argument that the pallets needed immediate attention
a potential safety hazard, the Union agrees that the pallets need to be taken care of but
there was not an emergency situation on September 17 and 18 and sanitation employees could
been called into work to remove the pallets or that sanitation employees already assigned
working their regular shift on September 17 and 18 could have been taken off their
duties and assigned to the removal of pallets and that other
sanitation employees could have been called in to perform the regular duties that those
employees were performing. The Union submits that the Company failed to show that the
removal was so urgent that it could not wait until another sanitation employee arrived or was
transferred from his or her regular duties to remove the pallets.
In conclusion, the Union argues that for the foregoing reasons the Arbitrator should
the grievance and make the Grievant whole.
The Company's main argument is that the Letter of Understanding in the labor
does not on its face contain a requirement that the Company needs to call in employees in
to meet its unanticipated needs in sanitation as happened on September 17 and 18 to
The Company submits that a requirement that the Grievant should have been called in on
17 and 18 is at odds with the Company's express and inherent management rights, a
practice, the 2000 labor negotiations between the parties and the practical realities of how the
Company needs to deal with immediate, unanticipated staffing needs and safety issues.
It is the position of the Company that the management's rights language of
Article 6, gives
it the right to assign work including overtime work and work on Saturdays, Sundays and
The Company also argues that Article 7, Section 7.09 allows the Company the right to
temporary transfers by seniority in order to get the work done.
Addressing the Letter of Understanding, the Company points out to the Arbitrator
Letter of Understanding regarding extra day overtime (September 17 and 18) was not a
where the overtime was required; in other words the Company argues that overtime
the Employer (the language of the Letter) means overtime that the Company plans for,
posts more than a week in advance. Required does not refer to the assignment of
even on an overtime basis that occurs during the day and requires immediate attention like
The Company submits that the Letter of Understanding was negotiated in 1990 and
of its witnesses made clear that it was intended to give less senior employees the ability to
anticipated or scheduled overtime work in their respective departments and does not refer to
unanticipated overtime which is the pallet removal situation. The Company argues that it has
consistently used employees already on the warehouse premises by transferring employees
work for which they were scheduled to take care of unanticipated pallet work. The Union
grieved that practice of the Company until the current grievance. The Company submits that
case of the Grievant it followed the exact practice that was agreed to in the 2000
Grievant was not scheduled to work the sixth or seventh
day as were the two employees in the grocery department who had signed a posting for
in shipping. Further, the Company argues that its testimony showed that the overtime
procedure (U 13) was outdated and inconsistent with the Company's practices before
Union #13 was
revised in 1999.
The Company submits to the Arbitrator that the Union is attempting to achieve
arbitration what it was unable to accomplish at the bargaining table in the 2000 negotiations
the Union made a failed attempt to change the Letter of Understanding. Lastly, the
that it has an obligation to maintain a safe work place, and in the past it had been the object
OSHA investigation regarding the pallet situation. This safety obligation supports the
judgment made by the Company to immediately take care of the pallets rather than calling in
In conclusion, the Company submits that the Union failed to meet its burden of
the Letter of Understanding stripped the Company of its otherwise inherent and express right
temporary transfers from the "pool" to meet its unanticipated needs and that the Company's
practice for meeting these unanticipated needs, in this case the handling of the pallets on
17 and 18, has become part of the labor agreement. The Company requests that the
This is a contract arbitration case. The Union, which has the burden of proof,
violation of the parties' labor agreement by the failure to call in the Grievant to work
September 17 and 18, 2000, the Grievant's scheduled days off. On those days, the Company
employees already scheduled to work to remove and organize pallets that had been delivered
Company. This work was performed by two employees assigned to the grocery division of
Company rather than to sanitation employees who normally dealt with pallets. The Grievant
sanitation employee. There are few facts in dispute and the grievance involves in essence
The circumstances that gave rise to this grievance involved the return of pallets to the
Company on September 17 and 18, 2000. As the Company's customers have complete
as to when they return pallets, the Company cannot anticipate on what day or days a
number of pallets might be returned to the Company. There was no evidence introduced that
type of pattern for returning pallets could be established and therefore no challenge to the
evidence that the return of pallets is unanticipated or can be predicted with enough regularity
schedule sanitation staff at the appropriate time and date. Further, there was no challenge to
Company's evidence that the pallets returned on the 17th and 18th
necessitated some action to
remove and organize them for efficiency of operations and safety. (Jt. 12,
Tr. 31 & 32) While the
Union may be correct that the evidence did not
present an emergency situation, the Union did not argue that nothing should have been
done with the
pallets, only that there was time to call the Grievant by phone and have him come in to do
sanitation work. The debate is simply whether the Company had to or did not have to call
Grievant. The two employees who did the pallet work on the days in question were already
warehouse working in the grocery division pursuant to a posting they had signed giving them
opportunity to work overtime for a shipping need. (Jt. 4-7)
Turning to the applicable contract language cited above, I find that the Company has
better of the argument. There can be little issue that the Management Rights clause gives the
Company significant discretion in the assignment of work. The main area of dispute is over
of Understanding. The Union argues that this provision of the contract covers all overtime;
Company argues that the language does not cover unanticipated overtime; the pallet situation
case. I find that the Company's interpretation is correct. The language in the Letter
refers to "Overtime Required by the Employer" (Jt. 1) Understandably, the Union
emphasize the word "required" and the Company does in their respective arguments. The
required is not defined in the labor agreement or the Letter but it has some commonly
meanings: impose a duty, necessary, compulsory, needed. 1/ I find that work cannot be
necessary unless it is known that it is needed or necessary. Therefore, I find that the pallet
the 17th and 18th was unanticipated and not subject to the
Letter of Understanding which only covers
anticipated or required overtime. As there is no dispute or evidence that the Company could
or anticipate the number of pallets it had to deal with on those dates, it could not know it
employees to handle them and logically did not require employees to work or ask for
Therefore the posting procedures of the Letter were not violated.
1/ Bartlett's Roget's Thesaurus,
Little Brown and Company (Inc.) 1996; Webster's New Collegiate Dictionary
G & C. Merriam Co. 1981.
Looking at the remaining provisions of the agreement subject of
the debate, I find the
parties' positions on Article 7 to be somewhat confusing and not determinative. I therefore
choose not to interpret Article 7 as to whether it applies to overtime or only straight time or
combination thereof. I find that the Company under the Letter and Management Rights
could transfer employees from the jobs they were scheduled to work on the sixth and seventh
to handle unanticipated overtime. The Call-In provisions of Article 14 are not
dispositive as that
language does not mandate a call-in but only states what happens when an employee is
The posting memorandum, Union exhibit 13, does not give the Union much assistance in
its burden. Company witness Krause testified that the memorandum regarding posting
refers to posted overtime and the grievant would not
have been eligible to sign the posting as he was in the sanitation
department and the posting was
for grocery. (Tr. 90, 91, 96 & 97) Human Resources
Director Zeeck, who testified about exhibit
13, was obviously not that familiar with the posting memorandum as Krause, a warehouse
superintendent, and did not know if the memorandum was still in effect. In response to
on the memorandum the most that could be elicited from Zeeck was that in certain situations
employee could, like Grievant, have been called into work. He never testified that it was
The Company's interpretation of the Letter and its practice was
significantly bolstered by
the testimony of Regional Vice President of Human Resources, Samer, who testified that he
negotiated the 1990 labor agreement and Letter. Samer's unchallenged testimony was that
Letter was negotiated to try and balance overtime opportunities and was only to apply to
overtime that would occur and for which the parties agreed a posting procedure was
and appropriate; the Letter did not apply to the unanticipated moving of pallets.
(Tr. 69-72) It
is clear from the record evidence that the Company has not posted for or called employees in
unanticipated overtime since the 1990 agreement. Further, the practice has not before the
grievance been grieved by the Union. (Jt. 9)
The Union argues that the Company could have handled the
pallet cleanup differently by
calling in the Grievant, by assigning sanitation employees already in the warehouse to do the
work rather than their scheduled assignments and call in other sanitation employees to
the regular sanitation assignments. The Company could have chosen one of those suggested
alternatives but the key is that it was not required to do so by the agreement and it is not my
prerogative to determine the Company's staffing and assignment needs.
I find that the Company did not violate the collective bargaining
agreement when it did
not call the Grievant to work on September 17 and 18, 2000 for the reasons discussed and
Based on the foregoing and the record as a whole, I issue the
The Company did not violate the collective bargaining agreement. The
grievance is denied.
Dated at Madison, Wisconsin, this 12th day of July, 2002.