BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
R.W. MILLER & SONS
TEAMSTERS LOCAL UNION NO. 43
For R. W. Miller & Sons, Inc., Attorney Daniel D. Barker,
Melli, Walker, Pease & Ruhly, S.C., 10 East Doty Street, Suite 900, P.O. Box 1664,
Madison, Wisconsin 53701-1664.
For Teamsters Local 43, Attorney John J. Brennan, Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., 1555 North Rivercenter Drive, Suite
202, P. O. Box 12993, Milwaukee, Wisconsin 53212.
R. W. Miller & Sons, Inc., hereinafter referred to as "Employer" or
Teamsters Local 43, hereinafter referred to as "Union," are parties to a collective bargaining
agreement covering an initial period from June 1, 1999 through May 31, 2003. That
provides for binding arbitration of grievances as therein defined that may arise between the
On March 1, 2002 the Union filed a request with the Wisconsin Employment Relations
for a 5-person panel of WERC commissioners/staff arbitrators from which the parties could
a person to hear and decide the grievance that had arisen between the parties. Commissioner
Henry Hempe was selected by the parties from the panel provided and was subsequently
by said Commission to hear and decide said dispute. A hearing was held on May 23, 2002
transcript prepared of the testimony provided. The Employer filed an initial brief received
2, 2002 and a reply brief received on July 15, 2002; the Union filed an initial brief received
8, 2002 and filed no reply brief.
The grievance herein is companion to another grievance (Case 4, No. 60977,
by the Union on behalf of the same grievant. By agreement of the parties, the grievances
consolidated for hearing purposes. However, the respective awards for each case are made
discussed in separate decisions by the arbitrator that conducted the hearing.
STATEMENT OF THE ISSUE
The Union proposed the following Statement of the issue:
Did the Company violate the labor agreement by not allowing
the grievant to work plowing
snow on the 17th of January 2002? If so, what is the appropriate remedy?
The Company proposed the following Statement of the issue:
Did the Company violate Article 4 of the labor agreement
it denied the grievant the
opportunity to perform snow-hauling work when he did not timely respond to the Company's
messages? If so, what is the appropriate remedy?
I adopt the following Statement of the issue:
Did the Company deny the grievant a
reasonable opportunity to perform snow-hauling work
on January 17, 2002 in violation of the parties' labor agreement? If so, what is the
FACTS OF THE CASE
The Employer, R. W. Miller & Sons, Inc., is a road contractor engaged in road
that includes excavation, grading and asphalting. In winter months, the Company's business
have included hauling snow for the City of Lake Geneva.
The grievant, John Laskowski, has been employed by the Company for almost six
Laskowski is a crusher operator, but also does welding (including welding on trucks). In
Mr. Laskowski works on the blacktop plant and the wash plant, and does whatever else is
to be done. He is sixth in seniority among Company employees. In the month of January
Laskowski was on layoff for the entire month.
In mid-afternoon on January 16, 2002, the City of Lake Geneva unexpectedly
Company for snow-hauling activities to commence in the very early morning hours of the
following. Company President Jeff Miller determined that he needed three persons to
snow-hauling trucks. Shortly after 2:45 p.m. Mr. Miller began efforts to assemble a crew of
drivers. The men were to commence work at 3:30 a.m. the following morning.
President Miller initially called three persons, including Grievant Laskowski. In each
was able to connect only to an answering machine at the respective homes of the workers he
Mr. Miller waited for about half an hour for the workers he called to call back before he ".
. . started
trying to contact the next people and seeing if they were available should I not be get
a call back
from the other people."
By 4:10 p.m., Mr. Miller says he had gotten an alternate crew of drivers entirely
Each member of the alternate crew had less seniority with the Company than did
After obtaining his crew, Mr. Miller reports that he then called Mr. Laskowski (and
the other two
persons he had initially tried to contact) back and left messages that their snow-hauling
would not be needed the next morning.
According to Mr. Laskowski, he had been absent from his house for less than an
afternoon of January 16. The grievant reports that he had left his house on that afternoon at
approximately 3:15 p.m. to pick up one of his sons when school ended and take the boy to
doctor's office. He returned to his house at 4:10 p.m. and was advised by his wife that Mr.
had left two messages on the answering machine, the first of which had offered a
opportunity early the next morning. The second cancelled the opportunity.
Mrs. Laskowski had not been home when either call came in, but had logged them in
Mr. Laskowski is sure of the time he had left and returned to the house because his son's
appointment was for 3:30 p.m. and he checked the times with his wife.
The grievant had originally purchased the answering machine at the request of the
so it could call him if a snow-hauling job were to arise. Mr. Laskowski had previously
in the event the Company was unable to speak with him personally, it simply to leave a
to what time it wanted him to report in and he would comply.
Upon learning of his CEO's messages, Mr. Laskowski immediately telephoned
Mr. Miller to
confirm his availability for work the following morning. Laskowski estimates that the latest
have reached Mr. Miller at Company was between 4:15 and 4:20. (He had first tried to
Miller at his home). Mr. Miller thinks Mr. Laskowski's call reached him at 4:20 or 4:25.
Mr. Laskowski indicated his willingness to haul snow the next morning Mr. Miller reiterated
second message he had just left on Laskowski's answering machine: the snow-hauling job
the next morning had been filled and there was no longer any work available for Mr.
Consequently, Mr. Laskowski did not report in for the snow-hauling work the next morning.
On several occasions in the past the grievant had received messages on his answering
from the Company offering snow-hauling work. The grievant had responded to those
telephoning back, and was allowed to do the work. Under cross-examination, the
grievant further indicated that in some instances he had phoned his acceptances of the
call-in requests Company officers had left on his answering machine directly to either
president Jeff Miller or his brother Peter (also an officer of the Company) at their respective
later than five o'clock but not later than seven o'clock p.m. In each case, Mr. Laskowski
said he had
been permitted to do the work.
In the winter months the Company shop normally closes at 4:00 p.m., although Jeff
Miller often stay later. Jeff Miller testified that he had established what he called "an
limit" as to the time employees should call back to indicate availability for snow-hauling
time limit is simply ". . . before we go home from work." CEO Miller explained that this
by the Company ". . . because this thing has lasted into six, seven o'clock at night and we
who's going and who's what and we're calling people and they're making plans to be
Sometimes, Mr. Miller said, there were instances where persons for whom messages were
show up at all, ". . . so we had to establish a procedure to make sure that we had the forces
available and in force on the job when they needed to be there."
The company president stated that he had come up with the "artificial time limit" the
before. However, he acknowledged that the new policy had never been put in writing, had
negotiated with the Union, had never been disseminated to the workforce, and that he had
advised the Union of the creation of the new policy, either in writing or otherwise.
Mr. Miller also acknowledged that at the time Mr. Laskowski called him he (Miller)
phone numbers where he could have reached each of the three more junior employees to
had given the snow hauling assignments for January 17. One of the three had left the plant
p.m., was presumably in his car on his way home, and could have been reached at his cell
Mr. Laskowski remained on layoff for the entire month of January 2002. In
Laskowski's minor daughter received medical services for which Laskowski was billed in the
There is no dispute that Mr. Laskowski's layoff during the entire month of January
his failure to elect COBRA coverage resulted in his health insurance coverage being
the month of February 2002. The grievant thus became personally liable for payment of the
amount. The Company paid Mr. Laskowski no wages during his layoff period nor did the
make any contribution on Laskowski's behalf to the pension fund identified in the Agreement
Seniority, with ability and qualifications, shall govern in advancement to higher
jobs. For other than seasonal work, employees will be called back to work by seniority in
2. The term "master seniority" means length of service with the Employer
employee is performing the work in the collective bargaining unit covered by this
term "yard" (which shall mean yard, plant or terminal) seniority means
length of service with the
Employer while the employee is performing work in the collective bargaining unit covered
Agreement at the particular yard.
. . .
Section 6. The right to work
overtime, the right to work on premium pay jobs, and on
Saturdays, Sundays and holidays shall be in accordance with the yard seniority of employees.
. . .
ARTICLE 21. HEALTH AND
Section 1. Effective June 1,
1999, the Employer agrees to provide health and welfare insurance
benefits as provided and offered as settlement of this Agreement. The Employer agrees to
cost of coverage up to a maximum monthly premium of $447.65 per aggregate employee.
the 2nd, 3rd, and 4th years of this
agreement the maximum monthly premium amount will increase to
$516.85, $586.05 and $655.25 respectively. . . .
(A) . . .
(B) When an employee is laid off due to lack of work, he
receive benefits for the calendar
month following his layoff. The Company will notify the insurance carriers upon
employment or layoff so that such employee may be billed directly.
(C) Regular employees returning from
layoff will be eligible for coverage the first of the
month following return to work.
1. Effective June 1,
1999, the Employer shall continue to contribute to the Central
States, Southeast and Southwest Areas Pension Fund the sum of eighty-five dollars ($85.00)
week for each employee covered by this Agreement, who has been on the payroll thirty (30)
days or more.
. . .
Section 5. Contributions to
the Pension Fund must be made for each week on each regular or
extra employee, even though such employee may work only part-time under the provisions of
contract, including weeks where work is performed for the Employer but not under the
of this contract, and although contributions may be made for those weeks into some other
fund or health and welfare fund. Employees who work either temporarily or in cases of
under the terms of this contract shall not be covered by the provisions of this Section.
. . .
ARTICLE 31. GRIEVANCE
1. . . .
2. . . .
3. . . . In the event that the Employer's representatives and the Union's
are unable to reach a decision resolving the dispute, either party may, within five (5) days
co-chairman of the Joint Grievance Committee in writing requesting arbitration in accordance
4. The parties agree an arbitrator shall be selected on application to the
Employment Relations Commission. If the Commission finds it necessary to appoint an
a member of the Commission, the losing party shall bear the full cost of the arbitrator. No
shall have the right to require arbitration, that right being reserved to the Union or
Section 5. . . . The decision of
the impartial arbitrator on any matter submitted to it shall be final
and binding on all parties. . . .
POSITIONS OF THE PARTIES
The Union asserts that the Employer cannot seriously be heard to argue that allowing
grievant to haul snow the morning of January 17 would have caused any disruption
even if ". . . a
disruption would provide an exception to the clear contractual requirement of assignment by
seniority." In support of this assertion, the Union points out that the starting time for the
haulers was 3:30 a.m. the following morning and Jeff Miller had telephone numbers for all
employees he had just scheduled to work then.
The Union also argues that the past practice of the parties was inconsistent with Jeff
refusal to let the grievant participate in the overtime snow-hauling work. In the past, the
called either Pete or Jeff Miller at their respective homes to accept snow-hauling work after
and been permitted to perform the proffered work. But the practice was not followed in this
because of what Jeff Miller described as an "artificial time limit."
However, the Union notes, the "artificial time limit" was never bargained with the
into writing, nor disseminated to Local 43. The Union contends that if the Employer is
going to deny
work opportunities when an employee is not immediately available by phone, it has at least
obligation to tell its employees of the new policy.
The Union finds the Employer's refusal to let Mr. Laskowski work the snow-hauling
on January 17 to be ridiculous. The Union suggests that the Employer was motivated
its desire to avoid paying benefits to the grievant. According to the Union, the employee
that had left
the plant at 4:10 p.m. could have been easily reached at his cell phone number and told that
employee with greater seniority wanted the overtime. The Employer's conduct in denying
grievant the snow-hauling work was an abuse of discretion and an unreasonable denial of
The Union argues that as a consequence of not being able to work in January, the
lost his family health insurance, as well as three hours of overtime pay and the appropriate
contribution to his pension. The grievant's minor daughter incurred almost $1,200 worth of
unanticipated medical services costs for which the grievant became personally liable. The
believes the grievant should be reimbursed for his medical expenses for which he would have
personal liability had he worked in January 2002, as well as made whole as to overtime
the pension contribution that should have been made under the collective bargaining
The Employer contends that the grievance should be dismissed because it gave the
a reasonable opportunity to claim the work. The Employer believes it acted reasonably when
the grievant to offer the work, left a message, then waited for what the Employer describes
reasonable time" for the grievant to return the call. When the grievant did not return the
call within the time-frame the Employer describes as reasonable, the Employer made other
arrangements to avoid being "left in the lurch." By the time the grievant called, the work
that he had
been offered earlier was no longer available.
The Employer argues that the Union's contention must fail because the Employer did
offer the grievant the snow-hauling work. Moreover, says the Employer, the grievant could
carried a cell phone or 2) alerted his wife to claim the work on his behalf. Since the
neither of these things, he did not make himself available to claim the work within a
Furthermore, the Employer postulates, if the Union's position is accepted, ". . . an
who receives a message about snow-hauling work could delay claiming the work until the
possible minute and show up at the shop even though others had accepted it. If this were to
then the employer would have to pay show-up pay to those who were bumped. Under this
it is possible that the employer would have to pay show-up pay to an entire extra crew.
The Employer sees other dangers portending the Union's position.
Moreover, it is possible that the employees who timely accept the
work will rely on the
assignment to their detriment, such as by making other alternate arrangements for child care.
if employees were permitted to bump their way back into the shift after the shop closed, the
ramifications could be far-reaching. Such a result would not be fair to the lower seniority
who should not have to worry that that they might be bumped. Moreover, the result
advanced by the
Union would deter lower seniority workers from making arrangements to fit the work into
It is, says the Employer, for these reasons that the Employer
decided to have a crew lined up
by the time the shop closed. The Employer doesn't perceive this decision as arbitrary or in
of the labor agreement.
According to the Employer, it ". . . should not be expected to have to work well into
evening making phone calls to straighten out who is going to be working a shift that starts in
middle of the night. And it should not have to risk having to incur show-up pay in the event
is not able to get in touch with one of the employees that accepted the work."
The Employer also asserts that the Union makes too much of the Employer's failure
the Union that it wanted to have overtime assignments in place before the end of the working
This, says the Employer, is a red herring because the Union presented no evidence of a past
establishing that employees had the right to bump other employees that had accepted the
The Employer cites two arbitration awards in support of its contentions, one decided
the other in 1953.
According to the Employer, in Corn Product Refining Co., 10 LA 414 (Rader,
. . Arbitrator Rader held that the employer made a reasonable effort to offer overtime work
to a senior
employee by making two telephone calls within a 20 minute period."
The Employer also finds Trailmobile Inc., 20 LA 592 (McCoy, LeMaster, Swigert,
1953) supportive of its position in this matter. The Employer describes the Trailmobile case
in which ". . . an arbitration board held that a company gave a senior employee a proper
to claim Saturday work when it placed several phone calls to the employee over a 45 minute
The Employer disputes the Union's contention that if Laskowski had performed any
January the Employer would have been obligated to pay Laskowski's health insurance
February. The Employer argues that Article 21, Sec. 1 (c) ". . . requires work on a regular
such health benefits to be paid following a return from layoff." According to the Employer,
reasonable reading of that provision ". . . would not require health benefits to be paid when
employee does not return to work on a regular basis." "It is unlikely," the Employer
the parties intended a contrary interpretation, since it refers to 'regular' employees." Since
grievant would not have returned as a regular employee, payment by the Employer of health
would represent an undeserved windfall to the employee that worked only a few hours.
Finally, the Employer urges that even if the arbitrator concludes that the grievant's
benefits for the month of February should have been paid, the award ought to be limited to
of the health insurance premium payment since the grievant failed to mitigate his damages by
choosing COBRA insurance continuation coverage.
Employer's Reply to the Union's Brief
The Employer repeated its contention that it had acted reasonably when it did not
grievant to bump an employee that had claimed the work after the grievant did not respond to
message the Company had left on his answering machine within a half an hour. The
believes the cases cited in its initial brief establish that other arbitrators are in accord with
Company's position herein ". . . and have found that employers need only wait a reasonable
of time before making alternative arrangements to have the work done." The Employer
the Union cited no cases suggesting that the Employer acted in anything but a reasonable
The Employer suggests that even if it had been able to call off one of the more junior
employees it had secured for the snow-hauling work, in effect that employee would be
staying in contact with the Employer while the grievant would be rewarded for being
The Employer faults the Union for offering no proof that it was attempting to avoid
benefits to the grievant: "For example, it (Union) offered no evidence that Miller doesn't
pass on the
cost of benefits to the customer when it performs snow-hauling work. What's more, in
denying the grievances, he made no reference to economics with respect to the snow-hauling
The Employer contends that Mr. Laskowski "had every chance to claim the work
reasonable period of time." The Employer continues in a similar vein:
Given Laskowski's belief that the opportunity to do this work is
extremely important to his
family, one would expect him to make an extra effort to be available. That would mean
arrangements with his wife to either get a hold of him or to ask her to call the Company to
his availability if she could not reach him. These steps would be a reasonable precaution
would be unreasonable to think that the Company would hold open the work indefinitely.
Accordingly, because Laskowski did not respond within a reasonable period of time, he lost
he may have had to do the work.
The Employer is critical of the grievant for presenting ". . .
concrete evidence that he was
actually away from home taking his son to the doctor at the time Miller called to offer him
He did not present the note his wife purportedly wrote (logging the times of Miller's calls)
he offer any documentary evidence that he had taken his son to the doctor."
The Employer distinguishes between a past practice of accepting snow-hauling work
evening and a past practice of allowing a senior employee to bump a more junior employee
already accepted an overtime assignment. Thus, according to the Employer, "the time for
of open work is not the issue."
Moreover, the Employer asserts that even the practice cited by the Union does not
a "past practice." Citing the standard for establishing a "past practice" set forth in Elkouri
How Arbitration Works, 5th ed. at 632 (1997)], the Employer
claims that "a time or two" remembered
by the grievant is not a past practice because it was neither 1) unequivocal, 2) clearly
acted upon, nor 3) readily ascertainable over a period of time as a fixed and established
accepted by both parties. According to the Employer, the grievant's testimony that he
accepting a shift when no one else had claimed it is insufficient evidence, and offers only a
snapshot of the Employer's practice under different circumstances.
In summary, the Employer asserts that it should not have to risk angering customers
employees don't show up nor have to make phone calls well into the evening to line up a
the Employer finds "good reasons" support its action, the action cannot be considered
the grievance should be dismissed.
I have no doubt that prior to January 16, 2002, the Employer had allowed employees
respond even later than 5:00 p.m. to overtime work opportunities that had been offered on
answering machines. In my opinion, the Employer's permissiveness in this regard was
clearly enunciated and acted upon, and readily ascertainable over a period of time as a fixed
established practice accepted by both parties.
The mutual acceptance of the practice was apparently tacit, at least in the sense that it
been reduced to writing. That does not diminish its viability or enforceability as a past
its mutual tacit acceptance constitutes, in my view, an " . . . implied mutual agreement
inference from the circumstances." See Elkouri & Elkouri, How Arbitration
Works, 5th ed. at 633
(1997). John Laskowski's testimony describes it. Jeffrey Miller's testimony confirms it.
I do not perceive the grievant's testimony, both direct and under cross-examination,
limiting the asserted practice to "a time or two," the Employer's argument notwithstanding.
grievant was not queried as to how many times he responded in late afternoons or early
to messages offering overtime left on his answering machine by his Employer.
Under cross-examination, the grievant further explained that "(t)here's been times I
have called the
company and everybody has gone and I've called Pete or Jeff at home . . . later in the
evening . . .
such as after five o'clock . . . (but not after seven o'clock)." Tr. 31-2. None of the
testimony was refuted.
In effect, Jeffrey Miller corroborated it. For when the Company CEO explained his
perception of the problems the Employer experienced, 1/ by implication, he necessarily
the existence of the earlier practice of leaving answering machine call-in messages that the
had described. 2/ Indeed, the Employer's apparent insistence that employees purchase
machines appears to have contributed to the practice. With answering machines installed,
were (presumably) free to leave their homes and respond to Employer messages when they
1/ (". . . this thing lasted into six, seven
o'clock at night and we don't know who's going and who's what and
we're calling people and they're making plans to be somewhere." Tr. 43. "Before that
(coming up with the
artificial time limit) we had people not show up . . . Well, I can show you when we didn't
have enough people show
up . . ." Tr. 56-7.
2/ What the grievant
had not described were the problems the Employer encountered when some employees
failed to respond to the messages. All that may indicate, however, is that either the grievant
was unaware of the
problems or that he, himself, never failed to respond to the Employer's messages in
some cases by calling
Company officers at their respective homes between 5 and 7 o'clock p.m. There is no
evidence that the grievant was
ever deprived of work prior to January 16, 2002.
As a result of the problems the Employer began to
he came up with what he
described as "an artificial time limit" on lining up a snow-hauling crew. (Tr. 43) Under
time limit, " . . . it's got to be settled before we go home for (sic) work."
The record is barren, however, of any evidence that there had ever been an occasion
implement the new, artificial time limit. Obviously, based on the facts of this case the
leaving messages on employees' answering machines was not abandoned. The grievant did
that he had purchased his home answering machine at the Employer's request, but the
not indicate the date of purchase. Neither is there any evidence that the grievant believed he
under any time limits as to returning Jeffrey Miller's calls on January 16
before Mr. Miller left the work site to go home. In fact, the grievant was able to
reach Mr. Miller
before he had left Company offices, 3/ but he first had attempted to reach Mr. Miller
at Miller's home.
3/ According to Mr. Miller's testimony, the
artificial time limit required closure on organizing a snow-hauling
crew "before we go home." Inasmuch as the grievant's phone call to Mr. Miller reached
Miller before Miller had
left for home, arguably the grievant had complied with the "artificial time limit," albeit
unknowingly. The Union
does not press this point, however, nor shall I.
Thus, if Jeffrey Miller had indeed come up with the artificial
time limit the year before, the
record does not indicate that he ever told anyone about it. In fact, Mr. Miller conceded that
not ever put his new artificial time limit in writing or communicated it in any way to the
this conceded fact, it is unreasonable, per se, to expect employees to comply
with it. 4/
4/ Whether the
artificial time limit is a
condition of employment or a work rule is beyond the
scope of this award. In either case, however, its dissemination to the employees likely to be
by it seems fundamental to its enforceability.
The question thus becomes whether the Employer allowed the
grievant a reasonable amount
of time to respond to the proffered snow-hauling opportunity.
Jeffery Miller believes he relayed the work opportunity to Mr. Laskowski's
machine "right after break time." (Tr. 39) Break time runs from 2:30 to 2:45.
Supra. Mr. Miller
called two more persons to complete the crew. He states he then waited about a half an hour
from them before contacting the next persons in the seniority line. Supra.
He further says he
completed assembling a different crew by 4:10 p.m., then called the Laskowski residence
and left a
new message advising Laskowski that his snow-hauling services were no longer needed. (Tr.
According to Mr. Laskowski, he had left his house at 3:15 to pick up his son at
take him to a doctor's appointment. 5/ Mr. Laskowski is certain he had received no calls
Company president prior to leaving at 3:15. (Tr. 29) Given Mr. Laskowski's obvious
work, it seems unlikely he would be mistaken on this point.
5/ The Employer is
critical of the grievant for presenting no "concrete evidence" that he had left his home
to take his son to the doctor. But this tack is as unpersuasive as it is immaterial.
consisting of his direct testimony to the point, is concrete enough, particularly since it was
an otherwise extensive cross-examination. Moreover, Laskowski's whereabouts during his
absence from his home
is immaterial. The question is whether Miller provided Laskowski a reasonable amount of
time to respond to his
message, not Laskowski's whereabouts during his absence from his
Mr. Laskowski further testified that his wife had returned to the Laskowski residence
p.m. (She had left to pick up another Laskowski school child from a school located three
away). (Tr. 16-17) Both of Jeff Miller's messages had already been left on the answering
Mrs. Laskowski heard the messages; she wrote them down, 6/ and relayed them to her
his return at 4:10 p.m. (Tr. 16) Mr. Laskowski reached Mr. Miller at the Company offices
telephone only a few minutes later.
6/ The Employer is
also critical of the
grievant for not bringing his wife's note to the hearing.
While production of the note would have assisted the establishment of a time-sequence for
Miller's calls to Mr. Laskowski, since I have no reason to question the grievant's testimonial
credibility I do not regard the note as an essential element of proof. I find neither
unusual that the grievant failed to preserve what he may well have regarded as simply a
household telephone memo of no particular evidentiary value.
If Mr. Miller's testimony is fully credited, he initially left a message on the
answering machine a short time after 2:45. When he had received no response from the
the other two employees he had called) within approximately a half an hour
(3:15 p.m.) he began
assembling a different crew. According to Mr. Miller, that task was completed at about 4:10
at which time he then left the second message on the Laskowski answering machine.
If Mr. Laskowski's testimony is fully credited, he had received no calls from
Mr. Miller by
3:15 p.m. When he returned to his house at 4:10 p.m., his wife advised him of the two
Mr. Miller on the answering machine. The grievant reached his Company president between
4:20 p.m. to accept the work.
Obviously, there are some time discrepancies between the two versions. But
is unnecessary. Given the existence of the past practice described by the grievant and
by Mr. Miller, coupled to Mr. Miller's admission that neither the workforce nor the Union
been advised of Miller's new "artificial time-limit" for assembling an overtime snow hauling
am not persuaded that under the time-table described by either the grievant or the Mr.
grievant was provided with a reasonable opportunity to accept the overtime work the
7/ The arbitration
awards cited by the
Employer offer dubious support at best for the Employer's
position. In Corn Products Refining Co., 10 LA 414 (1948), the labor contract required the
employer to call employees for extra work in the order of seniority and requiring the
compensate employees not so called "unless it is shown that the usual means of notifying
been utilized." Upon a
sufficient showing by the employer that notifying the grievant required a long-distance
telephone call, that two attempts to call the grievant through the long-distance operator were
20 minutes apart, and that the grievant failed to answer the phone on either occasion, the
arbitrator found that the
employer had utilized the usual means of notifying this employee and had thus met the
obligation of the contract.
But Corn Products is clearly
distinguishable from this case. In the instant matter, the usual method of
notifying eligible employees as to extra work opportunities was through an answering
machine procedure, a
procedure apparently initiated by and countenanced by the Employer to the extent that a past
established. Unlike Corn Products, in this case the Employer's message reached the
employee. The issue herein
is not whether the Employer used the usual means of contacting the employee, but whether
the Employer allowed
the employee a reasonable period of time in which to respond.
In Trailmobile, Inc., 20 LA 592 (1953) an
arbitration board found the employer had not violated the
contract requiring the offer of weekend premium work to senior qualified employees by
offering Saturday work to
a junior employee, where the senior employee had already left work on Friday when the
need for the Saturday work
arose and several telephone calls to the senior employee's house during late Friday afternoon
office hours failed
to reach him. The arbitration board also found (employer-appointed arbitrator dissenting)
that the employer had
violated the same contractual provision by offering Sunday and Labor Day premium work to
a junior employee
where the employer's failure to reach the senior employees was due to the failure of the
personnel department to
dispatch a telegram or to give the senior employee's telephone number to the supervisor in
charge during the
Unlike Trailmobile (in which several calls
to the senior employee were made during a 45 minute span) in the
instant matter only one call to offer the work was made to the grievant. Moreover, unlike
grievant in the instant case did claim the work before the Employer's office
closed, but his claim was denied.
Trailmobile may be instructive, however, as to the lengths a majority of the arbitration board
employer should have gone (telegram) to advise the senior employee of the Sunday and
Labor Day overtime
The Employer suggests that the grievant could have protected
himself by either carrying a cell
phone or requesting and authorizing his wife to accept work opportunities on the grievant's
Under the Employer's suggested first option, the employee would, in effect, be placed on an
"on call" status; the second would, in effect, place the grievant's wife (who is not employed
Company) on an unpaid, on-call status and preclude or restrict her performance of other
household tasks, including employment outside the home. But since the answering machine
that was in place had been apparently initiated at the Employer's request or direction and the
Employer had failed to express any complaints to the Union about that system, there was
for the grievant to think that he needed further protection. Certainly, he was not required to
unilaterally either of the more heroic measures now suggested by the Employer.
It is undisputed that each member of the crew assembled by Mr. Miller to work on
17 had less seniority than the grievant. Based on the Employer's failure to provide the
grievant with a reasonable opportunity to accept the Employer's initial offer of work
left on the
grievant's answering machine, such failure constitutes, in my view, a violation of
Article 4, Section
6 of the parties' labor agreement.
I am neither unmindful of nor unsympathetic to Jeffrey Miller's desire for closure by
of his workday regarding crew selection for overtime work. But desirable as that goal may
CEO Miller's standpoint, it is trumped in this instance by the unequivocal provisions of
Section 6. Given the existence of the past practice that I conclude was in existence when this
grievance arose, unilateral, unwritten, and unpublicized establishment of an "artificial time
not sufficient to overcome the practice. If the practice is to be modified, the Employer must
some other alternative.
The Union asks that the grievant be made whole in the event the Employer is found
violated the Labor Agreement. The Union believes that a "make-whole" remedy includes
reimbursement to the grievant for any out-of-pocket medical expense or liability he incurred
services that would have been otherwise covered by the grievant's contractual health
benefits, plus three hours of overtime pay and the appropriate contribution to the
identified pension fund in which the grievant participated.
The Employer argues that no health benefits should be included in any "make-whole"
because the Employer is not contractually obligated to pay such benefits when the employee
return to work on a regular basis. The Employer finds support for this argument in Article
Section 1 (C).
Article 21, Section 1(C) provides as follows:
(C) Regular employees returning from layoff will be
eligible for coverage the first of the month
following return to work.
Contending it is unlikely that the parties intended a meaning contrary to the
urged by the Employer since the provision refers to "regular" employees, the Employer notes
even if the grievant had been called back to haul snow on the morning of January 17, his
have been only on a casual basis.
Though strained, the Employer's interpretation is not entirely unreasonable. But an
cannot "ignore clear-cut contractual language." 8/ "The fact that disputed language is subject
more than one interpretation does not mean that said language is, therefore, unclear." 9/
8/ Clean Coverall
47 LA 272, 277 (Witney, 1966), cited in Elkouri &
Elkouri, 5th ed. at 483 (1997).
Publishing Company, 83 LA 512, 516, (Griffin, 1984), cited in Elkouri & Elkouri,
ed. at 482.
In the provision under examination, the adjective "regular" is used as a modifier for
noun "employees." It is not used as a modifier for the noun "work." As such, the words of
provision are clear on their face and require no further interpretive efforts. If the parties had
the interpretation now advanced by the Employer, they could have done so easily enough by
using "regular" as an adjective, once to modify "employees" (as they did) and once again to
"work" (as they did not). Their failure to do so seems a clear enough indication that they
intent of doing so. 10/
10/ Jt. Exhibit 4
this conclusion. That Exhibit consists of Company President
Jeffrey Miller's response to two Laskowski grievances - the instant one involving the
snow-hauling work and one other involving welding repair work to which the grievant
entitlement. The two grievances had been consolidated for hearing purposes. Mr. Miller's
response (to the grievance involving welding repair work is explicit in its acknowledgment
providing the grievant only 3 hours of welding work in
January 2002 would have cost the Employer in
excess of $1,100 in benefits alone. I find CEO Miller's response instructive and entirely
consistent with the
conclusion I reach above.
Applying the words of Article 21, Section
1(C) to the facts herein, indisputably the grievant
is a regular employee. Whether the work he should have been allowed to perform on
17 was regular or not is immaterial, because Section 1(C) makes no requirement in that
In my view, therefore, if the grievant been permitted to work the estimated three hours of
hauling on January 17, 2002, the Employer had an obligation arising under the labor
for payment of the grievant's group health insurance policy premium.
Finally, the Employer urges that even if I reach this conclusion,
I should limit my award
to the value of the health insurance premium that the Employer would have paid had the
been allowed to work on January 17. The Employer argues that Mr. ". . . Laskowski failed
mitigate his damages by not choosing COBRA insurance continuation coverage."
The only record evidence as to COBRA issue consists of only
two questions by counsel for
the Employer as he cross-examined Mr. Laskowski and Mr. Laskowski's response to each
Q You were offered or
are you familiar with what's known as COBRA coverage?
A Yes, I
you take COBRA coverage when you were laid off?
A No, I
"COBRA coverage" offers employees that
are laid off or terminated from their
employment the opportunity to continue coverage under whatever existing group health
plan they had participated while employed for a period up to 18 months following loss of
employment, as a matter of law. However, if the employee elects that option, the employee
becomes responsible for payment of the entire health insurance premium.
In labor arbitrations the concept that an injured party has some
duty to mitigate the losses
or damages that he has suffered is usually discussed in the context of a discipline or
case. 12/ This case is neither, and the Employer has cited no authority that supports the
extension of the duty to the case herein. But neither does the Union argue the converse
that the doctrine of mitigation should be restricted to cases involving discipline or discharge.
Remedies in Arbitration, 2d, Hill, Jr., Marvin H., and Sinicropi, Anthony V.,
BNA, 1981, 1991, in
which the authors' discussion on the duty to mitigate damages was included as a subsection
under II, Remedies in
Discharge and Disciplinary Cases, specifically as a factor to consider as a basis for reducing
back pay. While
noting that most (but not all) arbitrators prefer the approach of the employer's liability for
the grievant's failure
to mitigate damages, the authors also note the contrary view of Arbitrator David Feller who
argues there is no duty
to mitigate damages because the arbitrator does not award damages. Feller seems to suggest
that in discharge cases
the duty to mitigate damages flow from the agreements providing for such a
Logic alone does not appear to offer any immediately compelling reasons as to why
of this matter should not be measured against the conditions under which an obligation of
damages has been placed on injured parties. For in this case, as in cases involving discipline
discharge, the Employer's violation of the labor agreement has created some liability for the
incurred by the grievant, but the Employer suggests that the grievant's failure to limit some
losses should act as a correlative limitation on the Employer's liability for those losses.
circumstance I am inclined to examine the Employer's contention.
The conditions under which a plaintiff may be obligated (or not) to mitigate damages
described in Restatement of Contracts, Sec. 336 (1932):
Section 336. Avoidable Harm; Losses Incurred in Efforts to
Avoid Harm. 1) Damages are not
recoverable for harm that plaintiff should have foreseen and could have avoided by
without undue risk, expense or humiliation. . . . 13/
13/ Reported with
apparent approval in Remedies in Arbitration, 2d, at 214, note 128, Supra.
There appears to be no dispute that Mr. Laskowski had participated in a group family
insurance plan prior to his layoff in January. The Employer argues the grievant's duty to
damages required him to exercise his COBRA option when he was laid off. However, it
noted that had he elected to do so or even to obtain only February coverage for
himself and his
family as protection against remaining on layoff during the entire month of January - he
had to provide the cost of the monthly premium from his own pocket.
On direct examination by the Union's attorney, Mr. Laskowski explained the
that led to his liability for more than $1,100 in medical expenses in February 2002:
Q Mr. Laskowski, I'm showing you what's been
marked as Union Exhibit 1. Just referring to
the first page alone, what does that reflect as payments you had to make directly to health
Q And the patient is listed at
(sic) Katie Laskowski. Who is that?
A That's my daughter.
Q How old is she?
Q I have a Katie that's thirteen
as well. What happened to Katie that she needed to go see the
A She was having stomach
problems and such and they took her in, they did CAT scans and
some other stuff, and they found out one of her kidneys had been slid back in here towards
the back. They're thinking hopefully it was just from birth and it's still going to stay right
where it's at, but they don't know.
Q And did that doctor's
appointment occur on February 4th?
Q Okay. Now referring to the
second page, there's some charges from St. Joseph's Hospital
on February 4. Did you in addition to the Mankato Clinic, did you have to go to the
A It's yeah, it's the
same thing pretty much.
A Just different doctors billing
you different times.
Q And did these charges of
$956.50 have to come out of your pocket?
Q Were these charges that
would otherwise be covered by your health insurance had you been
A Yes. It says right here.
Q Okay. You're referring to
expenses incurred after coverage terminated?
Q And then the last page
appears to be a single charge related to a doctor or health care
provider of some sort. Is that accurate, $13.04?
Q And was that paid by you?
A Yes. 14/
14/ Tr. 1921.
Based on this testimony as well as the Restatement of
explanation of the
circumstances under which an injured party may be excused from an obligation to mitigate
I do not believe Mr. Laskowski had any obligation to mitigate his losses by
COBRA option following his layoff in January 2002. As is readily inferable
from his testimony recited above, the medical services required by his daughter in
to have been of an emergency nature and were not foreseeable damages.
Moreover, for the grievant
to continue his family health insurance coverage under his COBRA option would have
to pay the monthly premium out of his own pocket 15/ a cost that appears to me as
in the category of undue expense for even one month.
15/ Unlike the
responsibility to mitigate damages of a wrongfully discharged employee that may include,
qualifying for Unemployment Compensation with only minimal out-of-pocket expense to the
mitigation of damages that this Employer seeks to lay on the grievant would have involved a
of funds by that employee who had just been laid off from his employment. In the
first example, the harm by not
qualifying for Unemployment Compensation is foreseeable (loss of income) and requires no
undue risk, expense
or humiliation. In the instant matter, however, the harm caused by a temporary interruption
of health insurance
coverage was not foreseeable and the purchase of family health insurance under the COBRA
option to cover a one-month layoff period appears to constitute an undue
By declining to exercise his COBRA option, the grievant gambled either that he
be laid off the entire month of January or that he and his family would remain healthy in the
following a layoff lasting the entire month of January, or both. Clearly, the most prudent
the grievant would have been to elect the COBRA option, if he could reasonably afford to do
(The record contains no information as to this). From the grievant's standpoint, however,
other circumstances his failure to do so put at risk himself and his family only if he remained
for the entire month of January.
For in my opinion, under these facts any mitigation of loss responsibilities on the
not include, in effect, providing insurance coverage at the grievant's personal and undue
insurance that serves not only to protect the grievant and his family, but the
Employer as well, by
reducing the Employer's potential losses in the event the Employer violates the labor
latter is a risk the Employer must necessarily bear, for it was the Employer that took the
that withdrawing the grievant's work opportunity was not a violation of the labor agreement.
if, as here, the Employer violates the contract and as a consequence of the violation the
health insurance coverage to which he would have been otherwise entitled, making the
can hardly be said to constitute a windfall to him, for he receives no greater benefit than he
have received had there been no contract violation. He is merely put back in the position he
have occupied had the breach not occurred.
Accordingly, I find the Employer responsible for reimbursing the grievant for the
incurred by the grievant in February 2002 that would have been otherwise covered by the
group health insurance plan.
Under all of the circumstances and the record herein, this award shall direct that Mr.
Laskowski be made whole from any losses he incurred as a result of the contractual violation
Employer, including overtime pay for three hours of work, an appropriate contribution to the
fund identified in the parties' labor agreement, and reimbursement to the grievant for any
financial liability the grievant incurred as a result of any medical services provided the
members of his immediate family in the month of February 2002 that would have been
covered by the
Employer's group health insurance plan then in effect, if the grievant been permitted to
snow hauling work on January 17, 2002 that had been originally offered, then withdrawn, by
The Employer failed to provide the grievant with a reasonable opportunity to haul
January 17, 2002, in violation of Article 4, Section 6 of the labor agreement.
As and for a remedy, the Employer shall make whole the grievant for any damages
as a result of said violation, including 1) three hours of premium pay at the rate applicable to
grievant for January 17, 2002, 2) any required contractual contribution to the Central States,
Southeast and Southwest Areas Pension Fund as set forth in Article 22 of the parties' labor
agreement, and 3) reimbursement to the grievant for any personal financial liability the
incurred as a result of any medical services provided the grievant or members of his
in the month of February 2002 that would have been covered by the Employer's group health
insurance plan then in effect if the grievant been permitted to perform the snow hauling work
January 17, 2002 that had been originally offered, then withdrawn, by the Employer.
I will retain jurisdiction over this matter for a period of 45 days in the event either
a question as to remedy.
Dated at Madison, Wisconsin, this 25th day of September, 2002.