FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 03-52070

Class Action Grievance
IBT LOCAL NO. 661,
Union,

and

DEGUSSA CORPORATION,
Company.
_______________________________/

OPINION OF THE ARBITRATOR

April 12, 2004

After a Hearing Held March 3, 2004

In Sharonville, Ohio

For the Union: For the Company:

Julie C. Ford Douglas G. Smith

Logothetis, Pence & Doll Jackson Lewis LLP
111 W 1st Street, Suite 1100 1 PPG Place, 28th Floor
Dayton, OH 45402-1156 Pittsburgh, PA 15222
 Introduction

This matter involves a dispute between Local No. 661 of the

International Brotherhood of Teamsters, Chauffeurs, Warehousemen and

Helpers of America, AFL-CIO (“Teamsters Local 661” or “Union”) and

Degussa Corporation (“Degussa” or “Company”), formerly known as

Creanova Inc. The Union and the Company are parties to a collective

bargaining agreement with effective dates of October 19, 2001, through

October 10, 2006 (JX 1 or “CBA”).

The underlying class action grievance (JX 2) protests the Company’s

actions with regard to the calculation of overtime credit for employees who

work on an unscheduled Sunday. The Union submits that the Company

violated the collective bargaining agreement by failing to pay overtime pay

for hours beyond 40 in a given workweek, when the employee in question

has received double-time pay for working on an unscheduled Sunday, the

first day of the contractual workweek. The Company defends on the basis of

an anti-pyramiding provision in the collective bargaining agreement, Section

5.2, CBA @ 12.

The Union requests that the Company be ordered in the future to pay

overtime for hours worked over 40 in a workweek, regardless of whether the

employee has been paid double time for some of those 40 hours earlier in the

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week and that it be required to recalculate the overtime hours and pay for all

affected employees, from February 2003 through the present. The Company

urges that the grievance be denied.

The matter came on for hearing before the arbitrator at a neutral site in

Sharonville, Ohio, a suburb of Cincinnati, on March 3, 2004. Both parties

were present and represented by counsel and stipulated that the matter is

properly before the arbitrator for resolution. The parties submitted evidence

in support of their respective positions and agreed to submit post-hearing

briefs setting forth their arguments. They were asked to address specific

questions raised by the arbitrator in a letter to counsel, dated March 10,

2004. Those questions and each party’s responses are reproduced in the

Appendix to this opinion.

Factual Background

Degussa manufactures colorants for use in the production of paint.

Teamsters Local 661 represents the approximately 61 production and

maintenance employees at the Company’s manufacturing plant in Lockland,

Ohio, in suburban Cincinnati. This dispute arose after the Company in

February 2003 went to a schedule of continuous operation, 24 hours a day,

seven days a week, including weekends and holidays.

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 Before 2003, the Company operated on a traditional schedule of three

shifts, five days a week. In the negotiations for the current agreement in

2001, however, the Company discussed the possibility that the workload

might require 24/7 operation. The Union agreed to give the Company the

right to implement a 24/7 operation, and the parties reached agreement on a

proposed work schedule involving 12-hour shifts and a number of other

matters relating to the 12-hour schedule. Sections 5.2.6 & 7, CBA @ 10-11,

13. However, as Tom Allen, a 28-year employee and the chief Union

steward, testified, the parties recognized that they could not address every

possible issue that might arise with a changeover to continuous operation.

Under the new schedule, employees work three 12-hour days and 6

hours on Wednesday, the day that they transition from one weekly schedule

to the next, for a total of 42 regularly-scheduled hours per week. Table “A”,

CBA @ 13. Hours in excess of 40 are considered overtime and are paid at

time-and-one-half, so that an employee normally expects to receive at least 2

hours of overtime pay each week. Section 5.2.7.7, CBA @ 11.

Mr. Allen testified that, under the 8-hour-shift schedule that was in

effect for many years, the plant generally was closed on Sundays. Only a

few employees, mostly in the maintenance classification, ever worked on a

Sunday, and even then only rarely. On the rare occasions when Sunday work

4
was required under the eight-hour schedule, the contract provided that

employees were to be paid double time for all Sunday hours. Section 5.2.5,

CBA @ 10.

There were no disputes or problems regarding the relationship

between Sunday double time and overtime pay under the eight-hour

schedule, both because Sunday work was uncommon and because Sunday

was the last day of the workweek for payroll purposes. Accordingly, when

employees did work a Sunday, they were already receiving double time and

there was no question of their earning overtime later in the week, as the

workweek was over.

However, unanticipated questions about Sunday pay and overtime

arose after the advent of the continuous, 24-hour-a-day operation at the plant

in February of 2003. Since then, the plant has remained open seven days a

week, including all Sundays, and each employee works every other

weekend, as shown in Table “A”, CBA @ 13.

The parties in negotiations agreed that, once Sunday work was part of

an employee’s regular schedule, he would not receive time-and-a-half but

would get a $1.00-per-hour premium for Sunday. However, it was also

agreed that work on an unscheduled Sunday would continue to be paid at

double time. Section 5.2.7.13, CBA @ 11. When the schedule changed to

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24/7 operation and 12-hour shifts, the workweek also was changed, with

Sunday now being the first day of the week for payroll purposes rather than

the last. Section 5.2.7.4, CBA @ 11.

The testimony at the hearing was that Sunday double time is paid

when an employee gives up what would otherwise be his free Sunday to

work, most often to fill in for another employee who is on vacation or

otherwise absent. After the 24/7 schedule had been in place for some time,

the Union realized that there was a dispute over how employees were being

credited with such hours worked on an unscheduled Sunday and how they

are paid for overtime hours worked later in the workweek, since Sunday is

now the first day of the payroll week. The Company took the position that it

was not required to pay overtime later in the workweek, either because the

double-time hours are not being counted toward the 40 hours needed for

overtime, or because the Company is crediting the premium hours paid on

Sunday toward its statutory overtime-pay obligations later in the week.

Example Illustrating The Dispute, CX 1

The specific overtime calculation which gave rise to the grievance is

illustrated by Degussa in CX 1. See Table “A”, CBA @ 13, for Shifts and

Weeks when this particular situation could arise. An employee worked the

following hours in a week:

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 Sunday—12 unscheduled hours
Monday—12 regularly scheduled hours
Tuesday—12 regularly scheduled hours
Wednesday—6 regularly scheduled hours
Thursday—off day
Friday—off day
Saturday—12 regularly scheduled hours

The Company contends that it may pay the employee as follows:

Actual hours worked—a total of 54 hours for the week

Degussa pays double time for 12 hours on Sunday
Degussa pays straight time for 40 hours—Monday (12), Tuesday (12),
Wednesday (6), Saturday (1st 10 hours)
Degussa pays time and one-half for the last 2 hours on Saturday

Thus, the Company does not credit the employee’s 12 Sunday hours toward

overtime and pays the employee the equivalent of 67 straight-time hours for

the week.

The Union contends that Degussa ought to count the employee’s 12

unscheduled Sunday hours toward overtime and pay the employee as

follows:

Double time for 12 hours on Sunday

Straight time for 28 hours—Monday (12), Tuesday (12), Wednesday
(1st 4 hours)
Time-and-one-half for 14 hours—Wednesday (last 2 hours), Saturday
(12)

Thus, the employee’s 12 unscheduled Sunday hours should be credited

toward the 40-hour threshold for overtime, which should kick in at the 5th

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hour on Wednesday because the employee has worked 40 hours by then, so

that he should be paid the equivalent of 73 straight-time hours for the week.

Relevant Provisions Of The Collective Bargaining Agreement

The relevant provisions of the collective bargaining agreement appear

to be the following:

Section 5.2

An employee will be paid time-and-one-half his/her regular straight time

rate of pay for all work actually performed:

1. Beyond eight (8) hours in any one (1) workday.

2. Beyond forty (40) hours in any one (1) workweek.

3. On a holiday as set forth in this contract in addition to holiday

pay.

4. On Saturday. An employee will not be paid time-and-one-half

his/her regular straight time rate of pay for all work actually
performed on Saturday (or for 3rd shift on Friday) if the
employee misses a full shift within a normal workweek because
of an unexcused, non-compensable absence.

5. An employee will be paid two (2) times his/her regular straight

time rate of pay for all work actually performed on Sunday
other than that on a regular third shift.

6. When business conditions warrant the need for a seven (7) day
continuous operation, the Company will implement the
schedule provided for in Table “A”.

7. Seven (7) DAY, Twelve (12) HOUR SHIFT SCHEDULE

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 4. Work Week 4. Sunday 7 AM to Sunday 6:59 AM
7. Overtime 7. Time and one half after 40 hrs. in a week.
8. Saturday/Sunday Pay 8. Saturday paid at straight time plus shift
differential (if applicable). Sunday –
Regular straight time pay plus shift
differential, plus $1.00 premium, per hour.
13. Work on 13. Straight time until worked over 40 hrs.
Un-scheduled Day in a week, except for Sunday, which will be
paid at double time.

***

Premium pay shall not be compounded or paid twice for the same hours
worked. [Arbitrator: This clause will be referred to as the “anti-pyramiding
provision”, even though the word, pyramiding, does not appear in the
collective bargaining agreement, in any form.]

Table “A” Alternate 7-Day, 4-Shift Schedule

***

Section 6.3

If a holiday listed in this Article occurs during an employee’s vacation, the

employee shall receive his/her regular straight time rate of pay plus shift
differential, for this holiday, in addition to his/her vacation pay.

Section 6.4

An employee not required to work on any of the above holidays will receive
eight (8) hours pay at his/her regular straight time rate, including shift
differential.

Section 6.5

Holiday pay shall count as hours worked toward meeting the forty (40) hour
requirement in the computation of weekly overtime.

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Section 6.6

In order to be eligible for holiday pay, an employee must have worked the
plant scheduled workday preceding the holiday and the plant scheduled day
following the holiday, unless the employee provides a verifiable excuse for
such absence. A plant scheduled work day is defined as a minimum of seven
(7) scheduled hours of work.

A plant scheduled workday (12 hour shifts) is defined as a minimum of ten

(10) scheduled hours of work.

Difficulties With The Case

This case presents the following difficulties for the arbitrator:

I. Key terms in the anti-pyramiding provision are not defined in the

collective bargaining agreement, most notably “premium pay”. When

the arbitrator inquired into the distinction between premium pay being

“compounded” and “paid twice”, the Company responded, “The terms

have the same meaning.”

II. The only reference to “premium”, outside of the anti-pyramiding

provision itself, appears to be in Section 5.2.7.8 (“$1.00 premium”)

with reference to compensation for work on a scheduled Sunday under

continuous operation. Somewhat ironically, both parties agree that

scheduled Sunday hours, which are paid at an express premium of

$1.00 per hour, do count toward the 40-hour threshold for overtime.

This oddity makes discerning the meaning of “premium pay” and

interpreting the anti-pyramiding provision especially difficult.

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III. The anti-pyramiding provision notwithstanding, the collective

bargaining agreement in fact provides for some form of duplication in

several instances. See Section 5.2.3 (time-and-one-half plus holiday

pay), Section 6.3 (vacation pay plus holiday pay), and Section 6.5

(holiday pay counts toward overtime).

IV. The cases note a distinction between premium pay and overtime pay.

See, for example, Heritage Cable Vision, 91 LA 1043 (Doering Arb

1988), cited by the Company in its brief @ 5 (“The contract

prohibited pyramiding of overtime or premium pay.”). The Company

uses both terms without explaining the distinction. See Appendix, note

♦.

V. The hearing was much too short from the arbitrator’s perspective,

lasting only approximately one hour. Each side presented but a single

witness, neither of whom testified as to the intent of the anti-

pyramiding provision. The Company asserts that “Union Steward Tim

Allen agreed that the double time on unscheduled Sundays is premium

pay” (Company brief @ 5), but the arbitrator’s notes and recollection

reflect otherwise.

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VI. In particular, there was no evidence as to whether the anti-pyramiding

provision was carried over from previous contracts or was negotiated

specifically to address continuous operation under the current one.

VII. In an effort to elucidate issues, the arbitrator propounded the questions

reproduced in the Appendix. The parties’ responses largely reflect

their deep divide. While they agree that overtime is to be paid for

hours worked beyond 12 in a day under continuous operation, despite

the fact that the contract is silent on the point, curiously, the

Company’s position regarding Sunday overtime is more liberal than

the Union’s. See Question 3 and responses. The Union, presumably

relying on the language of Section 5.2.7.7, suggests that it should be

paid at time-and-one-half, whereas the Company would pay double

time, presumably relying on Section 5.2.5 or 5.2.7.13.

VIII. Clearly, the changeover to continuous operation has led to numerous

unanswered questions, as evidenced by this and a related pending

arbitration. See Appendix, Questions 2 and 9 and responses. Because

of that other arbitration, this arbitrator strives to arrive at a narrow

ruling, so as not to impinge upon the other proceeding.

The Positions Of The Parties

The Union poses the issues presented as follows:

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 Did the Company violate the collective bargaining agreement by
failing to pay employees time-and-a-half pay for hours worked after
40 later in a week in which they worked an unscheduled Sunday? If
so, what is the remedy?

The Union relies upon the general language of Section 5.2.2 (“for all

work actually preformed … Beyond forty (40) hours”) and the language of

Sections 5.2.7.7 (“after 40 hrs.”) and 5.2.7.13 (“over 40 hrs.”) specifically

addressing continuous operation. The Union believes that the unique

premium of double-time pay as an incentive for working on unscheduled

Sundays is separate and distinct from ordinary overtime pay and should not

be credited toward the Company’s statutory overtime obligations. Because

hours are credited for different contractual purposes, the Union sees no

violation of the anti-pyramiding provision.

The Company rests its defense on the anti-pyramiding provision,

citing Heritage Cable Vision, supra, the only case referenced by either party.

The Company insists that under no circumstances are hours which are paid

at an overtime or premium rate earlier in the week also included for the

purpose of calculating overtime obligations later in the week. At the various

grievance steps, the Company relied on the Fair Labor Standards Act of

1938, 29 USC §§ 201 et seq., and the regulations under it, presumably 29

CFR § 778.203 (JX 2, CX 1), but abandoned that argument in its brief.

13
 Decision

The arbitrator agrees with the Union that double time on an unscheduled

Sunday is separate and distinct from overtime. Sunday double time is a reward

for working on a traditional day of rest, whereas weekly overtime pay at time-

and-one-half for hours over 40 is a reward for working long hours.

The arbitrator distinguishes Heritage Cable, supra, and relies instead on

Holy Family Hospital, 99 LA 1122 (Tilbury Arb 1992), and cases cited therein,

and cases cited by the union side in Ralston Foods, 113 LA 176 (Smith Arb

1999), which uphold the crediting of hours for distinct purposes, in the absence

of a clear proscription against the practice.

Here, those distinct purposes are unscheduled-Sunday pay and weekly

overtime. On the basis of the evidence presented, the arbitrator is unable to

conclude that the anti-pyramiding provision proscribes granting credit for both

purposes. As a result, the grievance is sustained.

Rationale

It is indisputable that Sunday double time is a stand-alone premium in the

sense that an employee who works an unscheduled Sunday is entitled to double

time regardless of whether he works any other hours during the week. This was

so before the changeover to continuous operation, since before then, all Sunday

work was unscheduled. Following the change, each employee is unscheduled

14
every other Sunday, and his entitlement to double time for work on his Sundays

off still holds today, irrespective of weekly overtime. This double-time pay

clearly is a separate reward for working on Sunday when not scheduled to do so

and is independent of overtime.

Further persuasive is the plain language of Sections 5.2.2, 5.2.7.7, and

5.2.7.13, in which “hours” and its abbreviation, “hrs.”, are unmodified. The

several contractual references to “straight time” in Sections 5.2, 5.2.4, 5.2.5,

5.2.7.8, 5.2.7.13, 6.3, and 6.4 demonstrate that the parties knew how to specify

straight-time hours when they meant to do so. Because the hours terminology is

not limited, it encompasses all hours, including those worked on Sunday. Hilo

Transportation & Terminal Co, 33 LA 541, 543 (Burr Arb 1959).

Cases such as Heritage Cable, supra, and ones which follow it, such as

Ralston Foods, supra, are readily distinguishable on a number of grounds. First,

they involved holiday pay,1 not Sunday pay. Second, the anti-pyramiding

clauses in those cases specifically referred to both premium pay and overtime,

unlike this one. For example, the clause in Ralston Foods provided:

There shall be no pyramiding or duplication of overtime or premium pay,

and it is agreed and understood that no employee shall be paid overtime
or premium pay more than once for the same hours worked. Id. @ 178.

Degussa’s anti-pyramiding provision is a far cry from Ralston’s.

1
The issue before the arbitrator in Heritage Cable appears to be the very one before the arbitrator in the
other arbitration pending between Degussa and Teamsters Local 661. See Appendix, Questions 2 & 9 and
responses. Therefore, this arbitrator refrains from discussing Heritage Cable at any length.

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 The concern in Heritage Cable and Ralston Foods was with holidays

falling on different days of the workweek and thereby having disparate impacts

on the calculation of overtime. The day of the week on which a holiday falls,

like the 4th of July, may depend upon the earth’s daily rotation about its axis and

its annual journey around the sun, factors wholly beyond the control of

contracting parties. Here, however, the parties expressly contracted for a

Sunday—Saturday workweek, of which Sunday consistently is the first day.

The effect of unscheduled-Sunday work on overtime is unchanged from week to

week.

The arbitrator in Ralston Foods found the contractual language

ambiguous and relied on past practice to resolve the ambiguity. Here, while

there may be ambiguity and uncertainty as to the meaning of the anti-

pyramiding provision, there certainly is no past practice which sheds light on its

correct interpretation. ICWUC Local No. 867 and Cargill, Inc, 03-2 ARB ¶

3560 (Cornelius Arb 2003). To the contrary, this is a case of first impression as

between these parties. As a result, the arbitrator is faced with the task of

attempting to ascertain the meaning of the anti-pyramiding provision from a

consideration of the contract as a whole and from the reasoning of cases similar

to this one.

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 While the burden of proof in this non-disciplinary matter may rest on the

Union, once it has made out a prima facie case based upon contractual language,

the burden is on the Company to come forward with evidence as to the intent of

the anti-pyramiding provision and the meaning of its terminology. In particular,

the Company needed to produce evidence that “premium pay”, as used in the

anti-pyramiding provision, encompasses both unscheduled-Sunday pay and

overtime pay.2 The Company has made no effort to do this, merely assuming

and asserting in its brief what it needed to demonstrate. See Appendix, note ♦.

As a result, the arbitrator holds that the uncertainty of the anti-pyramiding

provision is insufficient to overcome the clarity of Sections 5.2.7.7 & 13.

Conclusion

Hours worked on an unscheduled Sunday under Section 5.2.7.13 are to

be credited toward weekly overtime under Section 5.2.7.7. To the extent that

this has not been done for employees between February of 2003 and the present,

their overtime hours and pay must be recalculated.

2
In Holy Family Hospital, supra, the arbitrator observed:

The term premium pay is generally defined as an extra rate which is paid for holiday and Sunday work,
for quick call back, for work on late shifts, or for specially hazardous, dangerous or unpleasant work. It is
an amount in excess of the regular compensation paid because of the special effort required or because of
the unpleasantness of the work or for inconvenience of the time during which the work takes place. At
times the term premium pay has been defined to include overtime pay. At other times not. Id. @ 1127-
1128; footnotes omitted.

For the arbitrator to provide a definition that the parties omitted from their agreement and which cannot be inferred
from their past dealings would be for him to exceed his authority. See Section 14.1, CBA @ 35 (“[T]he arbitrator
shall have no authority to add to … the terms of the Agreement.”). This the arbitrator respectfully declines to do.

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 Class Action Grievance

This is a class action grievance, covering all employees affected from

February of 2003 through the present. The Union requests “that the Arbitrator

retain jurisdiction in this matter for a reasonable period of time after issuance of

the award, to resolve any disputes that may arise between the parties regarding

the computation of such pay to affected employees or other matters relating to

the remedy.” Under the circumstances of this case, the request is reasonable and

is granted.

Within twenty-five (25) days from the date of this opinion, the Company

shall recalculate affected employees’ overtime in accordance with this opinion

and submit the results and supporting data to the Union for review and approval.

If any issues remain unresolved, the parties must notify the arbitrator in writing,

within forty-five (45) days from the date of this opinion, and explain their

respective positions. The arbitrator then will attempt to resolve the issues

without a hearing, if reasonably possible, or otherwise schedule a hearing for

final resolution.

Award

For all the foregoing reasons, the grievance is SUSTAINED. Hours

worked on an unscheduled Sunday under Section 5.2.7.13 shall be credited

toward weekly overtime under Section 5.2.7.7. To the extent that this has not

18
been done for employees between February of 2003 and the present, Degussa

Corporation shall recalculate their overtime hours and pay, and shall pay them

all amounts found to be due as a result. The arbitrator retains jurisdiction to

resolve issues arising out of this award, as explained above.

Dated April 12, 2004 _____________________________

E. Frank Cornelius, Arbitrator

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 APPENDIX

Arbitrator’s Questions And Each Party’s Responses

From Table “A”, the Alternate 7-Day, 4-Shift Schedule, in Week 1, a

1st-Shift employee normally would work Sunday through Tuesday from 7

am until 7 pm and Wednesday from 7 am until 1 pm, for a total of 42 hours.

He then would be off Thursday through Saturday.

1. Under the normal Monday-Friday workweek prior to the institution of

continuous operations in February of 2003, if an employee worked 10
hours on Monday and 8 hours per day on Tuesday through Saturday,
to what pay would the employee be entitled and why? Specifically,
what is the interplay between the 8-hours-per-day and the 40-hours-
per-week limits in Sections 5.2.1 and 5.2.2?

Union:

This question concerns how an employee would be paid if, under the
prior, 8-hour-shift schedule, he worked 10 hours on Monday, his
regular 8 hours each day Tuesday through Friday and an extra 8-hour
shift on Saturday. There was no evidence presented at the hearing on
the manner in which the Company actually handled this situation, and
this answer is based solely on the Union’s interpretation of the
contract language. Under Article V, section 5.2.2, the employee
would be paid for Monday for 8 hours of straight time and 2 hours of
overtime, since he worked more than 8 hours in a single day. The
employee would then be paid his regular, straight time rate for his
regular shifts on Tuesday through Thursday. After the first six hours
of his shift on Friday, the employee would have reached 40 hours.
Accordingly, under the express language of the contract, the employee
would be entitled to overtime pay for the last two hours of his
workday on Friday (hours 41 and 42 of his workweek), as well as for
the entire day on Saturday.

Furthermore, even if this interpretation were not accepted and the

Company were permitted to credit the overtime pay earned on

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 Monday against overtime later in the week (and thus not pay overtime
for the last two hours of work on Friday), it would not change the
outcome of the grievance in this case. For the reasons discussed in the
main portion of its brief, the Union believes that the unique premium
of double-time pay as an incentive for working on unscheduled
Sundays is separate and distinct from ordinary overtime pay and
should not be credited against the Company’s overtime obligations.

Company: ♦

The employee would receive two (2) hours at time and one-half for
the Monday and eight (8) hours at time and one-half for the Saturday.
The two (2) hours of overtime on Monday were not counted again
toward any weekly overtime obligation.

2. Under the normal Monday-Friday workweek prior to the institution of

continuous operation in February of 2003, if an employee worked 10
hours on Monday and 8 hours per day on Tuesday through Saturday,
to what pay would the employee be entitled and why, assuming
Monday was a holiday? Specifically, what is the interplay between
overtime and holiday hours? See Sections 5.2 and 6.5.

Union:

This question asks how an employee would be paid under the same
facts as in question 1, but assuming that Monday was a holiday. This
situation would not have arisen under the former Monday-Friday
workweek, as the plant was always closed on contractual holidays.
(Although there was no testimony on this point at the arbitration
hearing, the parties recently held an arbitration hearing on a grievance
that did not raise this exact question but that did involve the interplay
between holiday and overtime hours. The testimony at that hearing,

♦
The Company’s responses are prefaced by the following remarks:

While each question is answered separately[,] two (2) points should be made at the outset. First,
under no circumstances are hours which are paid at an overtime or premium rate earlier in the
week also included for the purpose of calculating overtime obligations later in the week. Second,
two (2) of the questions, numbers 2 and 9, have already been subject to an arbitration. The parties
are waiting for a decision.

The first point is, of course, one of the very issues before this arbitrator.

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 from both management and union witnesses, was that the plant was
never open on holidays before the advent of the 24/7 operations.
Attached hereto is the portion of the Union’s post-hearing brief in that
case that summarizes the evidence and testimony.) However, in the
hypothetical case presented, assuming that the plant indeed was open
and operating on the holiday, the same analysis would apply as in the
answer to question 5, below.

Company:

The Arbitrator should note that this situation has been arbitrated and
the parties are waiting for a decision. Briefs were filed on Friday,
March 26, 2004. In any event, prior to the institution of the
continuous operations the following would have applied:
8 hours straight time pay for the holiday
10 hours at time and one-half for working the holiday
8 hours time and one-half for the Saturday

3. Under the continuous operation schedule, if an employee on 1st shift

in week 1 works 14 hours on Sunday and his scheduled hours for the
rest of the week, to what pay would the employee be entitled and
why? Specifically, since the 8-hour-per-day limit does not seem to
apply under Section 5.2.7, what happens when an employee works
more than 12 hours per day on a scheduled Sunday?

Union:

This question asks how an employee would be paid if he is scheduled

to work on a Sunday for 12 hours but works 14 and works his normal
schedule the remainder of the week. The Arbitrator is correct that the
rule of Section 5.2.7, that overtime is paid after 8 hours in a day, does
not apply under the new 12-hour schedules. The testimony at the
hearing in this case was that the parties agreed that employees on a
12-hour shift would receive overtime pay for hours after 12 in a single
day; this was agreed to at negotiations but was omitted from the
written agreement by oversight. Again, there was no evidence in the
record about such a case (and, although there was no testimony on this
point, the Union believes both sides would agree that this kind of
daily overtime happens very rarely). However, the contract language

22
 would seem to provide that the employee in such a case would be paid
12 hours of straight time on Sunday (plus a $1.00 per hour Sunday
premium) and time and a half for two hours that day. The employee
would receive time and a half, not double time, even though the
overtime involved unscheduled hours on Sunday; the provision for
double time on Sunday is in a section of the contract labeled “work on
un-scheduled day” (emphasis added) and would not apply to
additional hours on what is otherwise a scheduled day of work. The
employee would receive his normal, straight-time pay for his 12-hour
shifts on Monday and Tuesday. By the start of his shift on
Wednesday, the employee would have worked 38 hours.
Accordingly, again based on the contract language providing for
overtime for all hours beyond 40 in any work week, the first two
hours of his six-hour shift on Wednesday would be paid at straight
time and the last four hours (hours 41 to 44 of his workweek) would
be paid at time and a half.

Company:

The Arbitrator is correct that the 8 hour-per-day limit does not apply
under Section 5.2.7. Therefore, when an employee works more than
12 hours on a scheduled Sunday he would receive:

2 hours double time on Sunday (for the unscheduled time he did

work)
12 hours regular time on Sunday
28 hours regular time for the rest of the week
2 hours time and one-half for the “regular” hours over 40.

4. Under the continuous operation schedule, if an employee on 1st shift

in week 1 works 12 hours on Sunday, 14 hours on Monday, and his
scheduled hours for the rest of the week, to what pay would the
employee be entitled and why? Specifically, since the 8-hour-per-day
limit does not seem to apply under Section 5.2.7, what happens when
an employee works more than 12 hours per day on a scheduled
weekday?

Union:

This is the same question as number 3, but assuming that the

23
 employee’s 14-hour day was on Monday, rather than Sunday. The
same analysis applies; the employee would be paid straight time for
12 hours on Sunday, 12 hours straight time and two hours at time-and-
a-half on Monday, 12 hours straight time on Tuesday, and two hours
straight time and four hours time and a half on Wednesday.

Company:

The employee would be entitled to:

2 hours of time and one-half on Monday

2 more hours at time and one-half when he works more than 40
in the week.

5. Under the continuous operation schedule, if an employee on 1st shift

in week 1 works 14 hours on Sunday and his scheduled hours for the
rest of the week, to what pay would the employee be entitled and why,
assuming Sunday is a holiday? Specifically, what is the interplay
between overtime and holiday hours under the continuous operation
schedule? See Sections 5.2 and 6.5.

Union:

The Union and the Company have been unable to agree on the
interplay between holiday hours and overtime pay; a question very
similar to this is the subject of the pending grievance, on which the
parties currently are awaiting an arbitrator’s award. Briefly, it is the
Union’s position that, under this scenario, the employee is entitled to
credit toward his 40 hours for overtime later in the week for 22 hours
for Sunday – 14 hours for the work day plus overtime and 8 hours for
the holiday pay, in accordance with Article VI, Section 6.5. He would
be paid his regular straight-time pay for Monday and for the first six
hours of work on Tuesday, at which point he would have gone beyond
40 credited hours of work that week; thereafter, he would be paid at
time-and-a-half for the rest of Tuesday and for his six-hour shift on
Wednesday. The Company does not agree with this interpretation and
would argue, as it did in the pending arbitration, that the employee is
entitled to credit on Sunday only for the 14 hours worked and not for
the 8 hours holiday time, notwithstanding Section 6.5. Under the
Company’s interpretation, should it prevail, the Union believes the

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 employee in this example would be paid 12 hours of straight time and
two hours of time-and-a-half on Sunday, straight time for both days
on Monday and Tuesday and two hours straight time and four hours
time and a half on Wednesday.

Company:

First, paid Company holidays are not scheduled on a Saturday or

Sunday. Typically, if a holiday falls on a Saturday, it is observed on
the preceding Friday; if the holiday falls on a Sunday it is observed on
the following Monday. Nonetheless, the employee would be entitled
to:
8 hours holiday pay
12 hours at time and one-half (working on a holiday)
2 hours double time
2 hours at time and on-half
6. Under the continuous operation schedule, if an employee on 1st shift
in week 1 works 12 hours on Sunday, 14 hours on Monday, and his
scheduled hours for the rest of the week, to what pay would the
employee be entitled and why, assuming Monday is a holiday?
Specifically, what is the interplay between overtime and holiday hours
under the continuous operation schedule? See Sections 5.2 and 6.5.

Union:

The same answer would apply as to question number 5.

Company:

8 hours pay for the holiday on Monday

16 hours at time and one-half (14 hours on Monday and 2 hours at end
of week)

7. What is the distinction between premium pay being “compounded”

and “paid twice” on page 12? [Arbitrator: In the anti-pyramiding
provision.]

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 Union:

The Union submits that the word “compounded” refers to

mathematical factoring, such as multiplying double time pay by time-
and-a-half. (For example, in the Union’s view, an employee who
works 14 hours on a non-scheduled Sunday, for which he is paid
double time, would receive double time for the 13th and 14th hours, not
one and half times the double time rate.) “Paid twice” would refer to
adding two forms of pay, such as adding time and a half to double
time. The parties do agree that not all forms of multiple pay are
improper “compounding” or double pay. For example, employees
who work on a contractual holiday receive both time-and-a-half pay
for the hours worked in accordance with Article V, section 5.2, and
also receive 8 hours holiday pay under that section and Article VI,
section 6.4. This practice is not considered to violate the no-
pyramiding section of the contract.

Company:

The terms have the same meaning.

8. What is the meaning of Section 5.4.F on page 18? It seems confusing

and contradictory.

Union:

Article V, Section 5.4 F attempts to balance the interests of employees

in having the option to work overtime if it is available and desired,
without being forced to do so, with the interests of both the Company
and the individuals in avoiding the dangers of fatigue on the job. It
prohibits employees from working two or more 16-hour days
consecutively, unless one of those days is a Saturday, and also limits
the number of hours an employee can work in any 48-hour period.
Under the former 8-hour schedule, employees could not be forced to
work more than four hours overtime, or a total of 12 hours, in a single
workday. These provisions relate only to the amount of overtime
hours for which an employee can volunteer or for which he can be
forced; this section has no relation to the pay to which an employee
may be entitled for those overtime hours.

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 Company:

This section is not applicable under the current operation. This

addressed situations which arose when there was mandatory overtime.
The Company elected not to force any employee to work more than
twelve (12) hours in a day for safety reasons although the employee
could volunteer to. Section 5.4.F. limited the hours an employee
could work even on a volunteer basis.

9. How are hours and holiday pay handled on the continuous operation
schedule? See Sections 5.2.3 and 6.5.

Union:

Regarding hours and holiday pay, the parties are in agreement, as

outlined in the earlier arbitration case, on the following pay provisions
relating to holidays. Employees who work on a contractual holiday
receive both time-and-a-half pay for the hours worked and 8 hours
holiday pay. Employees who are scheduled to work but who take a
vacation day on the holiday receive 12 hours at straight time as their
vacation pay and 8 hours of holiday pay. Employees who are not
scheduled to work and do not work on the holiday receive 8 hours of
holiday pay. The parties disagree as to how the holiday hours should
be dealt with for overtime purposes later in the week.

Company:

Subject of a pending arbitration as referenced in the response to

question 2.

[Arbitrator: Inclusion of these responses in this Appendix is not an

indication that the arbitrator necessarily agrees with either party’s response

to a particular question, except as is indicated in the text of the opinion

proper.]

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