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Ohio
Turnpike Commission
and
Teamsters
Local 436
119
LA (BNA) 1028
January
29, 2004
Feldman, Arbitrator.
The facts of this case are not in substantial conflict. It is apparent
from the facts that the employer holds, on occasion, Step 2 grievance meetings
near the end of a shift. Some of those meetings run past the end of the shift.
The employer did not pay for such time outside of the steward's normal work
hours unless the Step 2 meeting occurred on the employee's day off. Previously
the arbitrator held that absent a showing by the Commission that holding a
meeting during work hours was unsafe or inefficient the contract required that
the Commission pay the steward for attendance if the time used was outside the
normal working hours. The union now seeks payment at time and a half when such
hours are outside the normal work hours. This
is an issue not raised prior hereto but acquiesced to by the parties in order
to trigger the instant grievance and Opinion and Award following.
Contract language pertinent to
the matter at hand was revealed in the contract at Article 3.1. That language
stated the following:
“3.1 In addition to their
regular duties, stewards shall be permitted a reasonable amount of time,
without loss of pay to investigate and present grievances and represent
employee in meetings with employees on Commission premises. Such activities
shall be permitted, providing they do not interfere with the safe and efficient
operations of the Commission. Employees having a legitimate need for the
services of their steward shall notify their supervisor. Before performing his
or her duties, the steward shall first notify and make mutual arrangements with
his or her supervisor. Supervisors shall not unreasonably withhold consent.”
(Emphasis ours)
The contract also contained a
paragraph known as paragraph 35.1. It revealed the following:
“35.1 All employees shall be entitled to receive one and one-half (1-1/2) times their regular hourly rate of pay for all hours worked in excess of eight (8) hours in any workday or forty (40) hours in a work week.”
Paragraph 38.1 of the contract
revealed the following:
“38.1 All toll collectors shall be paid time and one-half (1-1/2) times for all hours worked past eight (8) in a day or forty (40) in a week.”
It is on the basis of those three paragraphs that this matter has grounding in the contract and arises under favor, therefore, of the language in the contract of collective bargaining. The question arises as to whether or not the language under 3.1 as stated above is clear and unambiguous on its face as to whether the “reasonable amount of time without loss of pay to investigate and present grievances and represent employees in grievances and of __” is “work” under the purview of the “work duties” of that employee.
By way of argument the employer
provided in its brief to the arbitrator two prior arbitration decisions, one
found under 5 LA 182. Head note number one in that case, entitled Ford
Roofing Products Co. revealed the following:
“Under contract providing that,
while attending labor-management meetings, employees shall suffer no loss of
time or pay, employer met his obligation by paying employees who attended such
meetings during their off-shifts a minimum of four hours at straight time in
accordance with call in pay provisions. Employer is not required to apply
overtime rate, which union demanded on ground that conference time constituted
work in excess of eight hours, since such time cannot be considered `time
worked' and intent of contract is to guarantee employees their regular pay for
time so spent.”
A review of that case on a
reading failed to reveal a pattern of “work.”
A second case relied on by the
employer is a case know as Tinker Air Force Base, 91 LA 758, head note
one, revealed the following:
“Employer properly refused to pay steward overtime for two hours that arbitration hearing on his own grievance extended beyond regular shift, where collective bargaining contract provides that relevant witnesses `otherwise in a duty status shall not suffer loss of pay,' grievant was paid for regular duty hours, and employer consistently has refused such overtime in such circumstances.”
That case involved an issue of
negotiating time, not investigation, hearing time or employee representative
time.
The union on the other hand argued
that “hours worked” included and is contemplated in the contract as the
stewards' regular work duties as is indicated in Article 3.1 of the contract.
The union argued that the clear and unambiguous language of the contract is
sufficient to support several work duties for the steward and his included work
duties of investigating and presenting grievances and representing employees.
Thus, the union argued that a steward has two job duties, namely his union
duties and his duties as an employee of the employer, both of which are
recognized and contemplated by the contract.
There is also indicated in that
contract as was indicated in paragraph 35.1, stated in full above, that any
employee working over forty hours per week and eight hours per day is entitled
to one and one half times their regular hourly rate for all hours worked in
excess.
Thus from all of this, it is
apparent that the employer believes and therefore avers that representing
employees at hearings, investigating grievances and doing similar union work is
not the “work” for which the steward is paid a wage, that wage being triggered
by the regular assigned duties of the employer. On the other hand the union
argued that a steward not only has the duties directed toward him by the
employer but also the duties of the steward as indicated and understood from
3.1 of the collective bargaining agreement.
It was upon those facts,
statements, allegations, denials and clauses, that this matter rose to
arbitration for Opinion and Award.
I read with interest the two
cases cited by the employer, namely Ford Roofing and Tinker Air Force
Base, both of which were cited herein above. I find that the Ford
Roofing case while it propounds a broad statement in favor of the employer
in this matter is not founded on similar facts whatsoever but rather founded
upon contractual language that is not similar to the collective bargaining
agreement herein above. As to the Tinker Air Force Base, that revolves
itself around negotiating time and not grievance time, nor under similar
contractual language as is found in the instant matter.
It is true that wages are a
creature of the contract. They must be stated in clear and unambiguous language
and without those thoughts forwarded in the contract of collective bargaining
an employee cannot obtain the wage or overtime premium pay that he thinks
existed. In the current
contract, however, the employer has recognized that the steward not only has
regular work duties but also shall be granted a reasonable amount of time
“without loss of pay” to investigate and present grievances and represent
employees and the like in his union activities. That is part and parcel of the
recognized work load of the steward and the employer knew about it because of
the writings of the agreement. That language is clear and unambiguous on its
face and to determine otherwise would be a misreading of the contract.
Furthermore, the “pay” that is
spoken to is not merely straight time pay but overtime pay or the employee's
wage. Paragraph 35.1 of the collective bargaining agreement states that all
employees shall be entitled one and one half times the rate of their regular
hourly pay for all hours worked in excess of eight hours in any work day or
forty hours in any work week. That is the pay eluded to in the agreement. I
must hold therefore that paragraph 3.1 draws its essence in the amount of pay
from paragraph 35.1. The wage of an employee is that which is agreed to in the contract
by clear and unambiguous language and I find that reading 3.1 and 35.1 together
creates the clear and unambiguous language and definitions for the words “pay,”
and “work” under the contract for the steward. Contractual clauses are to be
supportive of each other, supplemental and not disjunctive.
The same is true as to Article
38.1. That particular paragraph stated that toll collectors shall be paid one
and one half times their pay for any hours in excess of eight hours in a day or
forty hours in a week. That is certainly clear and unambiguous language and
more need not be said about it.
The grievance is granted and stewards shall be paid a premium wage for
all hours expended over the eight per day or forty per week.