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Title: Phoenix Newspapers Inc. and International Brotherhood of Teamsters Local 104 
Date: May, 1997
Arbitrator: Jack H. Calhoun
Citation: 1997 NAC 117

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

 

INTERNATIONAL BROTHERHOOD OF                                         )

TEAMSTERS LOCAL 104,                                                                 )       OPINION

                                                                                                              )         AND 

and                                                                                                         )      AWARD

                                                                                                               )            

PHOENIX NEWSPAPERS, INC.                                                         )              

                                                                                                                                                                                                     

 

 

FMCS No. 96-17382-8

 

BEFORE

JACK H. CALHOUN

ARBITRATOR

 

 

 

 

 

HEARING HELD

FEBRUARY 14, 1997

PHOENIX, ARIZONA

 

 

                                                                                                                                                                                                    

 

 

REPRESENTATION

 

 

 

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                                                     

 

 

 

BACKGROUND

 

            Teamsters 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

 

            The issue in dispute is whether the employer violated the collective bargaining agreement by failing to pay some of the employees represented by the union holiday pay.

ARTICLE I

RECOGNITION . . .

Section 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.

(a) 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.

. . .

 

ARTICLE VI

CLASSIFICATIONS AND EMPLOYMENT

. . .

Section 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.

(a)   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.

            . . .

(h) 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).

Section 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.

 

ARTICLE VIII

VACATIONS

Section 1.  Vacations shall be granted as follows:

(a) 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 vacation.

 

ARTICLE IX

HOLIDAYS

Section 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.

(a) 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 recognized).

(b) 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

            The 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.

            The 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.

            The 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.

            The 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.

            Substitutes 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.

            The 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.

            The 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. 

            There 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.

            The 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.

            With 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 (Summarized)

            The 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)

            The 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.

            Neither 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

            The 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.

            The 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 period.

            In 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.

            The 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.

            The employer did not violate the collective bargaining agreement by failing to pay holiday pay to substitute employees.

AWARD

            The grievance is denied.

 

            Dated this ____day of May 1997.

 

 

 

                                                                                    ______________________________

                                                                                    Jack H. Calhoun

 

122-96AZ

 

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