Title: Phoenix Newspapers Inc. and International
Brotherhood of Teamsters Local 104
IN THE MATTER OF THE GRIEVANCE
INTERNATIONAL BROTHERHOOD OF )
TEAMSTERS LOCAL 104, ) OPINION
and ) AWARD
PHOENIX NEWSPAPERS, INC. )
FMCS No. 96-17382-8
JACK H. CALHOUN
FEBRUARY 14, 1997
FOR THE UNION: FOR THE EMPLOYER:
Tommy Holmes Kandace B. Sheya
Business Representative BROWN & BAIN, P.A.
Teamsters Local Union 104 P.O. Box 400
1450 South 27th Avenue Phoenix, Arizona 85001-0400
Phoenix, Arizona 85009
Union Local 104 (the union) and Phoenix Newspapers, Inc. (the employer) are
parties to a collective bargaining agreement that covers the terms and
conditions of employment of covered employees.
The union filed a grievance claiming that the employer had violated the
agreement by failing to pay certain employees holiday pay.
The matter was not resolved at earlier steps in the grievance procedure.
A hearing was held on February 14, 1997.
Post-hearing briefs were filed. The
case was considered submitted as of April 4, 1997.
issue in dispute is whether the employer violated the collective bargaining
agreement by failing to pay some of the employees represented by the union
. . .
4. A full-time employee is defined
as an employee who has received thirty-two (32) or more company paid hours per
week for thirteen (13) weeks. Such
an employee is then qualified for all benefits as described herein.
Qualified employees must average thirty-two (32) company paid hours (to
include industrial pay) per week to maintain the company paid portion of the
benefits described in the Health and Welfare, and Sick Leave and Sick Pay
Sections of this Agreement.
Loss of benefits, by failure to maintain thirty-two (32) company paid hours per
week average for two (2) consecutive fiscal quarters (averaged as separate
quarters) will require
requalification to be recognized as a full-time qualified employee.
2. A sub-board employee (newsprint handling and general
maintenance) is defined as an employee who is hired to work less than thirty
(30) hours per week.
If a full-time employee (situation holder) is moved to the sub-board,
he/she will be eligible for forty (40) hours a week for thirteen(13) weeks, if
hours are available. After thirteen (13) weeks he/she will be limited to less than
thirty (30) hours per week.
. . .
A sub who works the holiday will be paid in accordance with Article IX, Section
1(b). A sub not qualified for
benefits will not be eligible for holiday pay as defined in Article IX, Section
1(a). A sub who is qualified will
receive holiday pay per Article IX, Section 1(a).
3. (a) New employees, as defined herein, will be on probation
for the first ninety (90) compensated shifts of employment during which time
they may be dismissed by the Employer for any reason. At the discretion of the manager, the probationary period may
be extended one time up to ninety (90) more compensated shifts in writing.
Dismissal during the probationary period or the extended probationary
period shall not be subject to arbitration.
Should the probation be extended, the employee will still be eligible to
begin and receive fringe benefits as otherwise provided for in this Agreement.
1. Vacations shall be granted as follows:
Full-time employees with one (1) full year of continuous service as of the end
of the current fiscal payroll year, shall receive eighty (80) hours of paid
vacation in the following fiscal payroll year.
Sub employees shall accumulate vacation credits on the basis of eight (8)
hours vacation for each 200 straight time hours worked, not to exceed 80 hours
1. The following holidays (or days observed as such) shall be
recognized as paid holidays for full-time employees: New Year’s Day, Martin
Luther King, Jr. Day, Presidents’ Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, and Christmas Day.
All full-time qualified employees shall receive eight (8) hours or ten (10)
hours at the straight-time rate in recognition of the above specified paid
holidays (holiday recognized) providing he/she works all required scheduled work
days, immediately prior to and following the holiday, unless excused by the
employer. If excused from a 10 hour
scheduled shift, a full-time, qualified employee will receive 10 hours of pay at
the straight time rate in recognition of the above specified holidays (holidays
When a recognized paid holiday falls on a day the employee is scheduled to work
a shift and he is required to work, he shall work a full shift (as defined in
this contract) and be paid at time and one-half the straight time rate in
addition to the holiday recognized pay, per subparagraph (a) above providing he
is qualified for holiday recognized.
facts of this case are simple and are not in dispute.
The parties have a collective bargaining agreement that contains the
above pertinent language. The
employer has never paid sub-board employees, who get in 90 compensated shifts,
holiday pay. Only full-time
qualified employees, those who work 32 hours or more each week for a period of
13 weeks receive holiday pay. Substitute
or "sub" employees, those who work less than 30 hours a week, are not
paid holiday pay. They substitute
for full-time employees.
union filed a grievance in June of 1996 when it found out the employer had
failed to pay certain sub employees for the Memorial Day holiday.
Sub employees are those who are not given a regular, full week’s work.
They are available to work in specified instances, as referred to in the
contract, to replace employees who are off on vacation, personal leave, sick
leave, and in unexpected workload situations.
language of Article I, Section 4 that defines "full-time qualified
employee" was placed by the parties at the beginning of the contract so
that it could be referred to throughout the contract and used as a standard
definition. The definition not only
pertains to health and welfare benefits, it is applicable to all appropriate
aspects of the contract, including funeral leave, jury duty, sick pay, medical
benefits and holiday pay.
intent of Section (h) of Article VI was for substitute employees who might be
working in replacement of a full-time employee during a holiday to be paid a
holiday payment of one and one-half the regular rate of pay.
The reference to Article IX, Section (1)(a) where the term"holiday
recognized" is used means a day of straight time paid in recognition of the
holidays specified therein. The
parties’ intent was that if a
substitute worked on a holiday, the substitute would be paid at time and
one-half. The substitute would not, however, be eligible for the
holiday-recognized pay, unless the substitute was qualified by working 32 hours
or more per week for 13 weeks.
who are qualified to receive holiday-recognized pay are those who once were
full-time employees and had been reverted to a substitute category due to
workload, but who nonetheless happened to have been qualified to receive the
holiday-recognized pay because they still fall within the definition of
qualified full-time employees. Except
for the unusual situation when a full-time employee becomes a substitute,
substitutes do not receive holiday-recognized pay.
use of the words "full-time qualified employees" in Article IX,
Section (1)(a) is the same term defined in Article I, Section 4.
It means a full-time employee must work or be compensated for a certain
number of shifts to be eligible for holiday pay.
Section (b) was intended to mean that if a qualified employee worked a
holiday, the employee would be paid at time and one-half and the employee would
also receive the holiday-recognized pay. The
payment of holiday-recognized pay by the employer has always been consistent.
90-shift language found in Article VI, Section 3, defines the probationary
period for new employees. It does not mean those employees who have worked 90 or more
shifts are full-time and qualified to receive holiday-recognized pay.
is no analogy between qualifying for vacation pay and qualifying for holiday
pay. The vacation-pay language in
the contract allows all employees to receive vacation pay based on the number of
hours they have worked. Vacation is on a prorated basis regardless of whether the
employee is a substitute or a full-time employee.
former president of the union and shop steward who negotiated the current
agreement and several past agreements testified that it was his understanding
that the definition of a full-time employee as used in Article I, Section 4 was
to be used throughout the agreement. It
was his understanding that substitute employees did not qualify for benefits
other than vacation. He understood
that substitute employees would not receive holiday-recognized pay.
He was aware of no instances during his stewardship when the employer did
not abide by his understanding of how substitutes were to be paid.
respect to Article VI, Section 2(h) where it states "...A sub who is
qualified will receive holiday pay...", it was the former president and
steward’s understanding that those full-time employees who subsequently became
substitutes were the only ones who would be qualified to receive
holiday-recognized pay under this provision.
POSITION OF THE UNION
union contends that according to the language of Article VI, Section 2(h) and
Section 3(a) substitute employees should have been paid holiday-recognized pay
for Memorial Day if they had 90 shifts in.
The definition of "full-time qualified employees" found in
Article I, Section 4, only applies to health and welfare.
Under Article VI, Section 3(a) both full-time and substitute employees
become eligible for benefits by completing their probationary period.
POSITION OF THE EMPLOYER (Summarized)
employer contends that the holiday pay provision of the collective bargaining
agreement explicitly states that non-qualified substitutes are ineligible to
receive holiday-recognized pay. The
contract provides only one method of qualifying for benefits: to work thirteen
32-hour weeks, thus becoming a full-time employee.
Employer and union negotiators testified that substitutes who did not
work thirteen 32-hour weeks were not intended to receive benefits, including
holiday-recognized pay. Their
testimony was not contradicted. There
is no evidence the parties deviated from this position at any time.
the language of the collective bargaining agreement, the intent of the parties,
nor past practice contemplates that non-qualified substitutes are entitled to
holiday-recognized pay. The
agreement provides only one method of qualifying for benefits: working at least
32 hours per week for 13 weeks. Because
substitutes, by definition, work fewer than 30 hours per week, they cannot
possibly qualify for holiday pay.OPINION
union claims that Article VI, Section 2(h) should be read to mean substitute
employees are entitled to holiday-recognized pay.
That provision states that substitutes who actually work a holiday will
be paid for it, in accordance with Article IX, Section 1(b), at the rate of one
and one-half the regular rate of pay. The
provision also states that substitutes not qualified will not receive holiday
pay and substitutes who are qualified will receive holiday pay.
The only way an employee can become qualified is found in Article I,
Section 4. That section provides
that full-time qualified employees are those who work at least 32 hours per week
for 13 weeks. An employee cannot
become qualified unless the employee is a full-time employee.
language of Article VI, Section 3(a) cannot be read to mean all employees who
complete the probationary period are eligible to receive fringe benefits
provided for elsewhere in the contract. The
last sentence of the section, which the union reads to mean that by completing
the probationary period an employee gains eligibility for benefits, means that
the employer cannot deny benefits to a new employee simply by extending the
employee’s probationary period. The
employee must still be a qualified full-time employee to receive
holiday-recognized pay, even when he has completed the 90-shift probationary
cases dealing with contract language and its interpretation, it is essential to
determine what the parties intended when they entered into the agreement.
There was testimony from two witnesses at the hearing, both of whom had
negotiated the current agreement and several past agreements, one a management
representative and the other a union representative. Both witnesses said the parties never intended that
substitutes would be eligible for holiday-recognized pay.
To be eligible an employee must be full-time, working 32 hours per week
or more for 13 weeks.
express language of the agreement is an important consideration when determining
the parties’ intent, however, it is also useful to go beyond the provisions of
the agreement and consider the conduct of the parties as another indication of
interest. All the evidence on the
record shows that the employer has never paid non-qualified substitutes
holiday-recognized pay. Moreover, the union has never complained over the years about
non-qualified substitutes not receiving holiday pay. The parties have a consistent long-standing practice of
excluding non-qualified substitute employees from holiday-recognized pay.
The practice was well-known to both parties and existed over a relatively
long period of time.
employer did not violate the collective bargaining agreement by failing to pay
holiday pay to substitute employees.
grievance is denied.
Dated this ____day of May 1997.
Jack H. Calhoun
Post Office Box 8173 Portland, OR 97207Phone: 877 399-8028