Professional Documents
Culture Documents
and
ROSCOMMON COUNTY
ROAD COMMISSION,
Employer.
______________________________________/
Workers Local No. 214 (“Union”) and the Roscommon County Road
pertinent part:
This dispute arises because the CBA does not specify precisely how “the
determined.
The Employer will post each payroll period an updated overtime list
detailing each employee’s overtime hours worked and the overtime
refused and/or not available. The list will reflect data from the preceding
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twenty-six (26) pay periods.
come in but informed that caller that he could work only until ten o’clock that
morning. As noted in the Road Commission’s brief @ 1, the caller was a Union
member, not a member of management, and Grievant did not obtain permission
Grievant was assigned to work in the shop, along with another employee
who worked there for 8½ hours. According to Road Commission records, a total
to a high of 8½.
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Three employees who were called to work overtime did not answer their
showed up for work. Each one was charged with declining 7 hours of overtime.
Grievant, who worked 4 hours, was charged with declining 3 hours of overtime,
to which he objected.
Do not charge any additional hours; 4 hours was the minimum number of
hours worked on 2/22/09. “Charge the least amount of hours worked”;
this is an ongoing problem that needs to be resolved. The Teamsters #
214 would like to request proceeding to Step 4 Arbitration to resolve this
grievance. (Emphasis supplied.)
Although Grievant retired on April 10, 2010, after 31 years with the Road
Grievance Report. A hearing was held on August 12, 2010, in the Road
made (“TR” or “T”). Briefs were filed by both parties in October of 2010.
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the arbitrator will uphold the more reasonable one. Elkouri & Elkouri, How
expressio unius est exclusio alterius (“the expression of one thing is the
exclusion of another”):
Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 467-
468; see also Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987)
@ 352-353.
Although the Union argues that no one told Grievant that he could not
leave early (Union brief @ 5), the testimony of Union member Gary Schwemle,
who called Grievant to work overtime, makes clear that Grievant was offered an
open-ended assignment:
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A. Just have them come in. Because I have no clue how long it will take
them to get the job done. (Schwemle T.14)
It is equally clear that Grievant left work to attend to his own business,
Q. Okay. So it’s something that was in your life that came up that you
wanted to be gone on a Sunday afternoon. Correct?
A. Yes.
Q. All right.
A. But that’s not to say if they would have had a lot of breakdowns
where they needed me, that I would not have stayed, but that was never
mentioned to me that they needed me to stay. (Jones T.37).
work in the shop had not been completed by the time Grievant left, inasmuch as
his coworker continued to work in the shop for another 4½ hours. Had Grievant
remained on the job, the shop work might have been completed earlier, but there
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It is also clear that the Union agrees that an employee cannot just walk
could undermine the intent regarding overtime, namely, that employees could
manipulate total overtime hours simply by having one employee work very few
hours. Employer counsel alluded to this loophole at the hearing but did not brief
it. TR @ 53-54. Indeed, if the Union’s interpretation were followed literally and
that he worked zero hours, then no one would be charged with any hours
such as “overtime opportunities offered” and “overtime hours offered” are used.
The arbitrator finds that Grievant was offered some overtime hours on February
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22, 2009, which he chose not to work, and that he was not “on an approved
vacation or sick leave” (TR @ 33). Thus he properly was charged with 3 hours
of overtime, over and above the 4 he actually worked. For all practical purposes
that issue is moot, inasmuch as Grievant no longer works for the Road
brief, the Commission takes the position that once the issue of Grievant’s
February 22, 2009 overtime hours is resolved, there is nothing more for the
arbitrator to address. Indeed, nowhere in its brief does the Commission discuss
any of the Overtime Lists (infra Section IV), several of which the Commission
itself introduced, or the testimony concerning those Lists and their significance.
The arbitrator concludes that the issue of whether the proper application
of the overtime rules is to charge overtime hours based upon “the least amount
the Remedy Requested portion of the Grievance Report, that “is an ongoing
agreement. Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003)
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@ 297. See also Township of Wyckoff v PBA Local 261, 409 NJ Super 344,
Because the CBA is silent on the issue, the Union appeals to past
practice of the Road Commission,” but without any explanation of just what that
practice is. In Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed
2003), the authors quote Arbitrator Jules J. Justin’s criteria for proof of a past
practice:
situations. For cases in which the arbitrator found a past practice, see UAW &
Its Local 62 and Jackson Innova Corp, 105 LRP 55078 (Arb 1989)
(uncontroverted evidence that work crew composition had been the same for
Jefferson County Transit Authority, 105 LRP 55096 (Arb 1997) (practice of
assigning overtime followed); Feralloy Corp, 115 LA 346, 01-1 ARB ¶ 3711,
For cases in which he found evidence of past practice lacking, see Local
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7-591, Oil, Chemical and Atomic Workers Int’l Union and Pennwalt Corp,
105 LRP 55076 (Arb 1988) (new and changed conditions); USWA, Local 1900
and Allor Mfg Inc, 105 LPR 55080 (Arb 1990) (only 12 employees allowed to
Int’l Local Union 394-S and Top Flight, Inc, 105 LRP 55082 (Arb, 1991)
Dravo Lime Co, 105 LAIS 55084 (Arb 1995) (only 4 incidents of discipline
for drug and alcohol abuse, two of which involved grievant himself); IBEW,
Local 2356 and Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Arb 2001) (no
acceptance by higher management); UFCW Local 867 and Cargill Salt Co,
03-2 ARB ¶ 3560, 31 LAIS 467, 103 LRP 57379 (2003) (new contract
provisions); Teamsters, Local 214 and Shiawassee County Sheriff, 05-1 ARB
leave); Int’l Paper Co, 127 LA 564, 10-1 ARB ¶ 4885, 110 LRP 13423 (Arb
It appears that in fact the Road Commission uses the method advocated
by the Union, except when an employee works some overtime but not all the
hours the Commission wanted him to work, as Grievant did on February 22,
2009. In such a case, the overtime charges appear to be based upon the fewest
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hours worked by those employees who stayed as long as they were needed. An
selected from 2007-2009, JX 3, UX 7A-N, and EX 8-10. Counsel for the Road
Jeffrey Jeske, a Union steward, made it clear that Overtime Lists are regularly
kept business records, on which both the Road Commission and the Union rely.
144-146; Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003)
Although Overtime Lists may cover different Departments, all the Lists
contain the same type of information. At the top of each Overtime List appears
the payroll period in which the Call in Date falls. For example, the payroll
period for JX 3, which has a Call in Date of 2-22-09 (the date of the incident in
periods constitute the “year” used for ranking employees for overtime eligibility
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every payroll period. TR @ 48.
columns: | Phone [number] | Emp # | Last, First [names] | OT Hrs [taken from an
Overtime Worked list such as EX 11] |; then 4 columns under the heading “OT
Within each Department, employees are ranked by OT Hrs, the employee with
the fewest hours being listed first, down to the employee with the most hours
The Union claims that the procedure for charging overtime hours used in
the past is to look at the fewest hours worked in each Department and to charge
employees in that same Department with overtime hours based upon that lowest
employees worked 7 hours each and 1 worked 8 hours. The lone employee who
refused to work overtime was charged with 7 hours, the fewest hours worked by
3 reveals a consistency with the Union’s contention. The lone inconsistency is,
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7A, the Overtime List for 1-24-09, under Department C, Gregory Wrangler
worked 3 hours of overtime, and Arthur Allen worked 2 hours of overtime and
for more than 3 hours. Allen and 4 employees who did not work were charged
Gregory Wrangler and Kevin Simpson worked 7.5 hours of overtime, and Paul
Affholder worked 3.5 hours of overtime and declined 4. All other employees
with overtime worked more than 7.5 hours. Affholder and an employee who did
Terrian and Jeffrey Jeske worked 4 hours of overtime, and Gordon Swanson
worked 3½ hours of overtime and declined ½ hour. All other employees with
overtime worked more than 4 hours. Swanson and 8 employees who did not
Lance Cherven worked 4½ hours of overtime but declined 2 hours. All other
employee who did not work were charged on the basis of 6½ hours.
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EX 8, the Overtime List for 12-25-08, presents a true anomaly involving
Terrian and Chester Butler worked 4 hours of overtime. All other employees
who worked overtime, with the exception of Grievant, worked more than 4
hours. Six employees who did not work were charged on the basis of 4 hours.
fireman.1
elected not to charge Grievant with additional hours because Grievant was
called away from Road Commission work to fight a fire. Thus, after allowance
is made for this truly exceptional situation, the overtime hours charged on EX 8
pattern appears. The Road Commission uses the rule advocated by the Union,
“Charge the least amount of hours worked”, except when the employees with
1
Grievant still is a fireman. TR @ 28, 50.
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the fewest hours Worked left early. In such a case, the Road Commission bases
the overtime charges upon the fewest hours worked by those employees who
consistent with the other situations for hours to be charged based upon the
The Union complains that these Overtime Lists in fact reflect a change in
only List that would seem to support that assertion is UX 7E, on which two
not credited with any hours Worked or charged with any hours Declined. To
borrow from the Union’s brief @ 8, “There was a chance that it was simply a
recording mistake.”
The party asserting a practice bears the burden of proving its existence.
Hill & Sinicropi, Management Rights (BNA 1986) @ 29-30. Not only was the
its acceptance by higher management was non-existent. See Elkouri & Elkouri,
How Arbitration Works (ABA/BNA 6th ed 2003) @ 608 n 14, citing, inter alia,
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by individual supervisors from mutual agreement by contracting parties); Hill &
Local 2356 and Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Arb 2001).
helpful to set forth an algorithm which the parties may use in charging overtime
Step 2. If at least 1 employee did not leave early, go to Step 3. Otherwise, i.e.,
Step 3. Among the employees identified in Step 1, determine the fewest hours
Declined.
Step 4. Go to Step 7.
Step 5. Determine the number of hours each employee who left early was
needed.
Step 6. Determine the fewest hours an employee who left early was needed.
Step 7. Charge each employee who said “No”, for whom there no answer
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when called, or was left a message but did not show up with the
6.
Step 8. Charge each employee who showed up for work but left early with
Worked.
Step 9. End.
becomes ill while working overtime. In that case, it might not be fair to use his
hours Worked in determining the basis for charging overtime hours, and he
probably should not be penalized with hours Declined, as he may have a valid
excuse of “sick leave”. The parties will simply have to address unusual
VI. Award
For all the foregoing reasons, the grievance is DENIED IN PART AND
SUSTAINED IN PART.
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