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Title: Babbit Transportation Services, Inc and Teamsters Local 961
Date: October 8, 1997
Arbitrator: Thomas Watkins
Citation: 1997 NAC 108

In the matter of Arbitration between:

                                                                                             HOURLY, DROP PAY  

BABBIT TRANSPORTATION SERVICES, INC.                       TEAM DRIVERS

Denver, Colorado

                                                                                                Ted Gerstner, et al., Grievants

-and -

                                                                                    Grievance Nos. 8115, 5756, 4860

TEAMSTERS LOCAL UNION NO. 961                                 FMCS No. 97-14759

Denver, Colorado

 

 

 

 

                                                                        THOMAS L. WATKINS, Arbitrator

 

 

 

APPEARANCES:

 

            FOR THE EMPLOYER:

 

                        Mountain States Employers Council by John K. Henderson       

                        Teresa M. Phillips, Administration; Witness

                        David Williams, Vice President, General Manager; Witness

 

            FOR THE UNION:

 

                        Berenbaum, Weinshienk & Eason by Martin Buckley

                        Matthew Fazakas, Business Agent; Witness

                        Ted Gerstner, Grievant; Witness

 

 

 

HEARING HELD:  September 29, 1997 at the offices of Berenbaum, Weinshienk & Eason, 370 Seventeenth Street, Denver, Colorado.

 

 

 

THIS PROCEEDING in arbitration was authorized under Article 16 of the Agreement between the parties dated March 1, 1996.  The Arbitrator was selected by the parties under the procedures of the Federal Mediation and Conciliation Service.


INTRODUCTION AND ISSUES

 

The Employer is engaged in the pickup and delivery, by truck, of items for its only client, Safeway Stores.  Many routes are handled by one driver, but others, due to their length, use a team of two drivers.  In February 1997 a conflict over the mileage rate to be paid drivers resulted in a reexamination by the Union of certain other pay provisions of the Labor Agreement between the parties.  As detailed below, the issue essentially concerns whether certain amounts are to be paid to each driver of a team, or split between the two team members.

The Grievant, Ted Gerstner, originally bid solo runs for the Company.  In 1997 he bid for team runs which took him on routes outside the state.  On these runs drivers are paid by the mile, except that they receive an hourly rate for time spent waiting at road closures, waiting for trailer pickups, etc.  Historically the Company had always split the hourly rate specified in the Agreement between the two drivers.

Believing the Agreement called for both drivers to receive the specified hourly rate, Gerstner filed a grievance on March 24, 1977 [#8115].  On April 9 the Union filed a “class action” grievance on behalf of all bargaining unit members over this same issue [#5756].  And on the same date the Union filed another grievance contending that the “Drops and/or Pickups” amount specified by the Agreement must be paid to both drivers, not split between them as had been the practice.

The grievances were processed through the negotiated procedure, denied by the Employer throughout, and are now stipulated to be properly consolidated and before this Arbitrator for a decision on their merits.

The issues are framed as follows:

Did the Company violate the Agreement between the parties when it failed to pay to each driver on a team the hourly rate specified?  And did the Company violate the Agreement when it failed to provide to each driver on a team the Drop/Pickup amount specified?  If the answer to either or both questions is in the affirmative, what is the proper remedy?

 

RELEVANT LANGUAGE OF THE AGREEMENT

ARTICLE 16

Section 4.  The arbitrator shall not have the power to add to or subtract from or modify any of the terms of this agreement or to substitute his judgment for that of the Employer.

 

ARTICLE 22

            ENTIRE AGREEMENT.  . . . . . This Agreement constitutes the entire Agreement between the parties, and no past practice, or stipulations or understandings, memoranda or bulletins shall be construed as in, any way, [sic] modifying, altering or amending the terms or conditions hereof.

 

APPENDIX “A”

                                                                                    3-1-1996        3-1-1997        3-1-1998

Mileage          Solo (per mile)                                      27¢               27-1/2¢             28¢

                        Team (per mile)                                 28-1/2¢              29¢               29-1/2¢

                             (Split)[1]

 

Hourly Rate                                                                $14.50            $15.00            $15.50

 

Per Diem       Solo                                                    .05¢/mile

                        Team                                                  .10¢/mile split

 

Drops and/or Pickups                      $10.00 each per location (per unit)

 

Dispatch Fee                                     $5.00 per unit

 . . . . .

Delay Time[2]                                       Paid at the appropriate hourly rate.

 

Out Bound Dispatch

 

             After the first half hour after dispatch time while waiting to pick up the trailer at                   the Safeway Dahlia Street Facility.

 

Road Closures En Route

 

No prior knowledge of the Road Closure, the driver is paid after the first three (3) hours of delay (up to eight (8) hours pay in a twenty-four (24) hour period).

 

Prior knowledge of the Road Closure, the driver is paid from the time of arrival at the road closure until the road is opened (up to eight (8) hour pay in a twenty-four (24) hour period).

 

                                                                                                                       

Picking Up and Delivering Return Loads

 

            The driver is paid after the first three (3) hours of delay (up to eight (8) hours of pay in a twenty-four (24) hour period).

 

. . . . .

 

POSITIONS OF THE PARTIES

The Union contends that the Agreement has no ambiguity and must be enforced as it reads. (1) Since “Hourly Rate” does not specify that it shall be split, then each driver must be entitled to the amount indicated.  It applies to each here just as it would for jury duty or bereavement pay.  Article 13 underscores this approach: “All employees shall be paid in accordance with the provisions of the wage schedule in Appendix ‘A’, attached hereto.”  (2)  “Drops and/or Pickups” specifically states “$10 each per location (per unit)” [where “unit” is acknowledged to refer to the rig].  If the drivers were meant to split the $10, as has been the practice of the Employer, then the word “each” would be superfluous.  Further, as with the “Hourly Rate,” the Agreement does not indicate that the amount is to be split.  (3)  The “Delay Time” section states in all three subsections, “the driver is paid,” which must refer to both persons on the team.  Were the hourly rate to be split in this instance it would constitute the only time an hourly rate is split, since for jury duty and bereavement each person affected is paid the hourly rate.  (4)  The Company successfully argued in a recent prior arbitration case[3] that the parties are bound by the language of the Agreement irrespective of what they may have discussed, or may have meant, or what their practice may have been, absent unfair dealing or fraud or a mutual mistake.  The Company knew or should have known what it was signing.  It changed the amounts on Appendix A when it was printed, and it specifically added the word “split” under mileage rates to be paid to a team.  Thus, where “split” does not appear, the amount must not be split.  As an appropriate remedy the Union seeks payment for all adversely affected employees since the filing of the grievances.

The Employer argues that this is a case of an Agreement with a gap: the parties clearly understood that the hourly rate was split between team drivers, that the drop fee was split, and that amounts paid for delays were to be split.  (1)  All amounts are split when a team is involved.  The parties have mutually accepted this interpretation since the beginning of their relationship, throughout the entire first contract, and during the first year of the current Agreement.  Surely if the amount were not to be split the Union would have protested the practice either during negotiations or during the prior arbitration case.  (2)  The word “split” was absent from the prior Agreement under “mileage” yet the parties understood the amount would be split.  The Union never filed a grievance to the contrary.  (3)  There is no grievance over the $5 “Dispatch Fee” even though that fee has been and continues to be split.  (4)  The word “each” under the “Drops and/or Pickups” section is included not to refer to each driver but to each separate stop at a particular location, for example when one supplier in Byers has three separated potato sheds.  (5)  In the prior arbitration the Company contended that what was stated in the Agreement was binding.  The Union’s contention, which the Employer and Arbitrator denied, was that the Agreement should be reformed because of certain parole evidence.  There was no contention of something being left out.  But here the word “split” is occasionally omitted yet the parties both clearly understood exactly what the practice had been and would continue to be.  The gap in the Agreement is filled by this long standing, mutually accepted practice.  For each and all of these reasons the Employer asks that the grievances be denied.

 

ANALYSIS

The case before us must first be distinguished from the one which preceded it.  In the prior matter Arbitrator Snider properly found that the Company had engaged neither in fraud or misleading behavior, that the parole evidence rule barred consideration of conversations contrary to the clear language of the Agreement, that the written agreement was neither “patently erroneous” nor “clearly contrary” to the mutual understanding of the parties, that any mistake was unilateral rather than mutual, and that therefore the contract as signed was binding upon the parties.  The Arbitrator was prohibited from reforming the Agreement under those circumstances.

Here, the question is one of interpretation rather than reformation.  Having been stung by the reality and enforceability of mileage increases not to its understanding, the Union carefully examined other elements of Appendix A.  There it found both the presence of, and in some notable places, the absence of the word “split” on amounts paid to team drivers during periods of delay and when making drops or pickups. There is no dispute whatsoever that team payments have consistently been split between the two members of the team.  In no instance have team payments, whether for mileage, hourly rates or drop fees, been made to each driver for the total amounts specified.  None of this matters, however, if the language is clear:  if clear it must be enforced even though its application is different than the acknowledged past practice of the parties.

Phrased in reverse, the issue before us initially is whether or not the language regarding hourly rates or drop/pickup amounts contains ambiguities with respect to either of those types of payments.

There is no need for interpretation unless the agreement is ambiguous.  If the words are plain and clear, conveying a distinct idea, there is not occasion to resort to technical rules of interpretation . . .

An agreement is not ambiguous if the arbitrator can determine its meaning without any other guide than a knowledge of the simple facts on which, from the nature of language in general, its meaning depends.  But an agreement is ambiguous if “plausible contentions may be made for conflicting interpretations” thereof.  Moreover, it is recognized that whether a document is nor is not ambiguous is a matter of impression rather than of definition . . .[4]

. . . . .

If the language of an agreement is clear and unequivocal, an arbitrator generally will not give it a meaning other than that expressed. . .

Thus, the clear meaning of language may be enforced even though the results are harsh or contrary to the original expectations of one of the parties.[5]

 

The matter of the “Drop/Pickup” amount provides “textbook” clarity.  The Agreement states, “$10.00 each per location (per unit).”  [Emphasis added.]  No adequate explanation is available for the inclusion of the word “each” other than that both drivers on a team are entitled to the amount.  The Employer contends that because there might be multiple stops within a location, “each” refers to those stops.   Yet this produces an illogical result, for if the word “stop” is read into the language after the word “each,” then the words “per location” become superfluous. 

To achieve the Company’s desired result, the wording would have to be “$10 per stop per location per unit,” or “$10 per unit per stop.”  Since neither of those phrases are available without impermissible reformation, the clear language must be applied without regard for other considerations, including the parties’ practice:  “each” must refer to each person, Company practice to the contrary notwithstanding.  This conclusion is inescapable since meaning can be determined “without any other guide than a knowledge of the simple facts on which . . . its meaning depends,” and it must be enforced irrespective of whether “the results are harsh or contrary to the original expectations of one of the parties.”

The inclusion of the word “each” distinguishes that section of Appendix A from all other provisions, including the hourly rate also disputed in this matter.  The line referring to “Hourly Rate” suffers from the reverse problem:  there is no word or words indicating whether the amounts specified are to be split. 

The Union believes if they were to be split the Agreement would say so explicitly, as it does on mileage and per diems; since it does not, it is clear that the amounts must go to each driver.  To include one meaning is to exclude another: since “split” specifically appears in some places but not in others, where it does not appear, both drivers must be entitled to the amount indicated.  No interpretation of the Agreement is necessary.  Past practice is irrelevant:  prior acts cannot be used to change the explicit terms of a contract but only to fix a meaning to words and phrases of uncertain meaning.

The Employer believes the absence of the word “split” creates an ambiguity because the long and consistent, mutually accepted practice of the parties has been to split team payments.  “Split” sometimes appears; sometimes it does not.   Indeed, under the last Agreement the word “split” did not appear under the mileage amounts, and the Union clearly accepted that the team amounts specified would be divided between the team members.

Does the absence of the word “split” mean that both must receive the amount, as the Union contends?  And because each driver would receive the whole amount were he on jury duty or bereavement leave, does it follow that each is entitled to the full hourly amount when waiting out a delay?  Not necessarily.  Unlike the “Drop/Pickup” issue there are no words to guide us here.  Both parties make “plausible contentions” for interpretations of this section which, by definition, means the language is not clear on its face.

Into this vacuum past practice must be placed:  “use of past practice to give meaning to ambiguous contract language is so common that no citation of arbitral authority is necessary. . . . Where practice has established a meaning for language contained in past contracts and continued by the parties in a new agreement, the language will be presumed to have the meaning given it by that practice.”[6]  Other authorities agree:  “The readoption of ambiguous language is generally regarded as being evidence of an agreement to follow earlier practices established under such language . . .”[7]  Here, everyone understood there would be no change in the practice of the parties: team payments were to be split absent clear language to the contrary.

This use of practice to give meaning to the language is buttressed by a logical extension of the mileage amounts paid.  When the word “split” was added to the current Agreement under mileage (although not under hourly), it did not in any way change the practice of the parties.  Mileage amounts for teams were split for teams under the former Agreement, a practice that went unchallenged and unchanged through today.  Under that arrangement, team drivers each receive about 55% of the mileage amount they would receive had they been driving solo.  Or phrased differently, two persons driving/riding together split approximately 110% of what one would receive if alone.  To presume that the same two persons would each receive 100% (200% jointly) while sitting out a delay while on that same run takes quite a leap of faith, one an arbitrator should be unwilling to make in light of the parties’ long mutual acceptance of a practice to the contrary, and absent the presence of a definitive word such as “each.”

It is recognized that such a conclusion still leaves Appendix A a mixed bag:  the mileage specification is clear; and so is the dispatch fee, which is paid per unit and therefore split.  The per diem rate is the same irrespective of whether one is solo or half of a team (.05/mile each); and, as noted earlier, it is clear the “Drop/Pickup” amount also must go to each person.  But the absence of the word “split,” by itself, does not automatically mean an amount is not to be split.  This conclusion is unaffected by references to jury duty and bereavement leave which are solo, not team, activities, and are therefore not analogous.

While the next round of negotiations will likely clarify this matter, the Union cannot in the meantime carry forth its burden to show that in the absence of the word “split” the hourly rate must be paid to each member of a driving team.  The word “each” is also absent; and the Agreement taken as a whole simply does not provide sufficient clarity.  In such circumstances the Arbitrator’s role is to determine, by all the evidence available, the mutual intentions of the parties.  A consistent, long-standing, mutually accepted practice provides the best guide. 

Therefore it must be found that the Employer has violated the clear language of the Agreement by failing to pay each driver the drop/pickup amount, but has not violated the Agreement through its practice of splitting the hourly amounts between members of a driving team.  The remedy is fashioned accordingly.


DECISION

Grievance numbers 8115 and 5756 are denied.  Grievance number 4860 is sustained.  The Company is directed to reimburse to all drivers the appropriate shortfalls, if any, in payments related to “Drops and/or Pickups” from April 9, 1997 forward, and to continue to provide such specified amounts to each driver whether or not a member of a driving team.  The Arbitrator retains jurisdiction in this matter only to the extent the parties are unable to determine the amounts due.

 

 

                                                ____________________________________  

                                                THOMAS L. WATKINS, Arbitrator

 

October 8, 1997

Frisco, Colorado

 



[1] This word was not included in the prior Agreement, but was added to the current Agreement.

[2] This entire section was not included in the prior Agreement, but was added to the current Agreement.

[3] Grievance No. 2286 (FMCS No. 96-23441-A), decided by Marshall Snider on February 18, 1997.

[4] Elkouri and Elkouri, How Arbitration Works, 4th ed., 1985, BNA, pp. 342-3.

[5] Ibid., pp. 348-9.

[6] Ibid., p. 451-2.

[7] Owen Fairweather, Practice and Procedure in Labor Arbitration, 2nd ed., BNA, 1983, p. 206.

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