Title: State of Montana Department of Transportation
and Teamsters Union Local 2
THE MATTER OF THE GRIEVANCE
UNION, LOCAL 2,
FOR THE EMPLOYER:
Nick A. Rotering
P.O. Box 201001
Falls, Montana 59403
Helena, Montana 59620-1001
Union, Local 2 (the Union), and the Montana Department of Transportation (the
Employer or the Department) are parties to a collective bargaining agreement
that provides for call-out pay when employees are required to work during
hours when normally they would be off duty.
The parties’ dispute arose over when call-out pay should begin when
an employee is called at home and told to report to work.
The Union filed a grievance when the Employer discontinued paying
employees call-out pay for the time spent in travel from their homes to their
regular work site. The parties
agreed the matter was properly before the arbitrator.
Post-hearing briefs were filed.
parties agreed that the issue in dispute is whether the Employer violated the
collective bargaining agreement when it discontinued starting call-out pay as
it had in the past.
RELEVANT CONTRACT PROVISION
following provisions of the parties’ collective bargaining agreement is
relevant to the issue in dispute.
. . .
8. Call out. If the
employee is called out on Saturday, Sunday or holiday, each and every call out
shall be for a minimum of four (4) hours.
If time is over four (4) hours, the minimum will be eight (8) hours.
Compensation for Saturday and Sunday shall be at one and one-half (1½)
times the regular rate of pay and for holidays shall be two and one-half (2½)
times pay. If the employee is
called out on any other day, each and every call out shall be for a minimum of
two and one-half hours (2½ ) hours. If
time is over two and one-half hours (2 ½) hours, the minimum will be four (4)
hours. Compensation for each call
out shall be at one and one-half (1½) times the regular rate of pay.
Alternate work schedules will be discussed and mutually agreed to in
writing with the union prior to implementation.
Employees will be relieved after the emergency is satisfied and all
work stemming from the emergency has been completed.
called out to work and who continue to work into or past their regular
scheduled shift shall receive the full amount of the applicable call-out, up
to a maximum of two and one-half (2
½) hours and also be allowed to complete their regular shift.
Employees shall receive one and one-half (1½ ) times the applicable
rate for all hours worked in excess of eight (8) hours.
. . .
Employer reserves the right to employ, promote, dismiss or release and to
direct the working forces, subject to the terms of this agreement.
conformity with the authority vested in the Department of Transportation, by
the Statutes of the State of Montana, it is recognized that the selection of
personnel for advancement is the sole prerogative of the Employer. Experience, qualifications, capabilities and length of
service are factors for consideration for awarding advancement.
Montana Department of Transportation is divided into sections for purposes of
highway maintenance. Several
sections comprise a district and a number of districts comprise the entire
geographical area over which the Department has the responsibility for
section has a maintenance supervisor, called a section man, and several
employees who are subordinate to him. Normal
shifts for the maintenance employees in a section are eight hours per day.
Typically, the morning shift starts at 5:00 a.m., the day shift starts
at 7:00 a.m., and the afternoon shift starts from 1:30 to 3:30 p.m.
Each shift has a one-half hour lunch period.
employees of the Department who are represented by the Union are employed in a
maintenance section called the McDonald Pass section.
The section encompasses as 40-mile area of U.S. Highway 12, from the
City of Helena to Elliston. During the summer months, the employees perform regular
highway maintenance work. During
the winter months, they have the additional responsibility of plowing snow,
sanding and de-icing the highway. It
is not unusual in the winter for them to be called out early before their
regular shift starts.
McDonald Pass section man reports to the Helena maintenance superintendent who
is in charge of five sections. The
maintenance superintendent reports to a maintenance bureau chief.
a number of years dating back as far as 1967, according to the one Union
witness, when employees in the Helena and McDonald Pass sections are called
out early prior to the beginning of their regular shift, call-out pay has been
calculated by the section men in those two sections from the time the
employees received the call to report to work.
In some cases, starting call-out pay when the call is received by the
employee results in 30 minutes extra pay above the contract guaranteed two and
one-half hours at time and one-half.
a regularly scheduled shift, the employees’ time does not start until they
arrive at the work place. They drive from their places of residence in their own
vehicles to the work place, call in to a dispatcher that they are “in
service”, and get in a state vehicle and begin work.
Their time starts when they call the dispatcher.
in the McDonald Pass section were told by their section man when they began
their employment with the Department that under the collective bargaining
agreement’s call-out provision, during emergencies, call-out time started
when the employee gets the call to come in, as long as the employee got to the
work site within a reasonable time, which meant one-half hour.
Several section men used that practice over several years, although
nothing was ever put in writing.
when driving to the work site, either on a regularly scheduled shift or on
call-out because of an emergency, employees will stop their vehicles and
remove hazardous objects, such as
dead deer, from the roadway. They
do not receive compensation for doing so during a regular work shift; however,
in the past they did receive compensation for such tasks because they were on
the clock from the time they received the call to come to work at their homes. Department policy encourages all employees to voluntarily
remove hazardous objects from the roadway.
March of 2000, the maintenance superintendent in Helena first learned of the
practice of showing starting time as the time the employee received the call
to come to work. He had been
checking time sheets when he discovered the practice.
As a Union-represented employee during his
years, he had worked in the Bozeman area where start time was calculated from
the time the employee reached the work site, not when he received the call to
maintenance superintendent reported what he had discovered to his supervisor,
the maintenance bureau chief, who met with the Union and employees on March 16,
2000, and informed them the practice would stop.
In written correspondence to the Union business representative, the
bureau chief stated that past management did allow the practice to happen, but
current management was not going to allow the practice to continue because it
was not the intent of the language in the collective bargaining agreement.
Department has a collective bargaining agreement covering certain other
maintenance employees in different sections.
It has call-out language similar to the agreement in question.
In no other section in the state is start time calculated from the time
the employee received the call, it starts when the employee is on the work site.
Department supervisory personnel above the section man level did not know
about the practice of McDonald Pass section men starting call-out pay at the
time the employee received the call to report to work until March of 2000.
SUMMARY OF THE UNION’S POSITION
Union contends that call-outs in the McDonald Pass section have been paid for a
long period of time from the time the employee received the call to report to
work. It became a past practice and
the Employer cannot unilaterally change that practice.
letter from the maintenance bureau chief stated that management has allowed the
practice. Current management in the
Butte District has been in place for five years and has allowed it.
The practice has been going on for 20 years in the McDonald Pass section.
Employer cannot change any established past practice unless it goes through the
collective bargaining process. Any
other change to working conditions is unilateral and cannot be made without the
approval of the Union. Such
unilateral change also constitutes an unfair labor practice.
the Employer insists that the language of the collective bargaining agreement
does not contemplate paying for call-outs as has been done in the past, the
Employer should have brought the issue to the bargaining table.
The way the Employer handled the matter did not give the Union any chance
to resolve it.
SUMMARY OF EMPLOYER’S POSITION
Employer contends, first that the practice was not a legitimate past practice
that is binding on the Employer and, second that if it is a past practice,
management has the right to change it without bargianing with the Union.
Management does not have to bargain because it was an error on the part
of prior administrators who improperly allowed the practice and current
management has the right to unilaterally change the practice.
Further, the right to change the error falls within management’s rights
under the collective bargaining agreement.
the absence of a written agreement, for a past practice to be binding on both
parties it must be unequivocal, clearly enunciated and acted upon, and readily
ascertainable over a reasonable period of time as a fixed and established
practice accepted by both parties.
receive a minimum of two and one-half hours for call-outs even if they do not
work the full period. That is more than adequate reward for the fact that they are
called out early. The alleged
30-minute provision is vague and not clearly enunciated as to when it would
apply. The testimony of Union
witnesses was unclear as to their actual work on occasions while driving to work
on a call-out.
Union had the burden to prove by a preponderance of the evidence that a past
practice existed in this case. The
party asserting a past practice has the burden because a past practice
represents an implied agreement by mutual conduct.
The assertion of a past practice requires that the party making the
assertion not only prove its existence, but also its scope.
If persuasive proof of mutuality is not proved, no valid conclusion can
be made that a past practice existed. See
Labor and Employment Arbitration,
Matthew Bender & Co., Vol. 1, 2nd Ed. §10.01, Bornstein,
Gosline and Greenbaum as general editors.
are a number of factors to be considered in determining the existence of a past
practice. Once the party with the
burden has proved that there was a well-established pattern of conduct that
represented a mutually agreed upon response to a particular set of
circumstances, the issue then becomes what effect is to be given to that
practice. However, before applying
a past practice, it is essential to establish that such practice in fact
existed. See Management
Rights, Hill and Sinicropi, BNA Books, 1986 at p. 22.
a course of conduct can be regarded as a binding past practice, there are
standards that have to be met. “Past Practice and the Administration of
Collective Bargaining Agreements,” Mittenthal, Proceedings of the 14th
Annual Meeting of the NAA, BNA Books, 1961.
Mittenthal identified several such standards.
Briefly they are: (1) clarity and consistency, (2) longevity and
repetition, (3) acceptability, (4) underlying circumstances and (5) mutuality.
the instant case, it was in the clarity and consistency category that the Union
failed to show a past practice. Where
the evidence shows that a practice was inconsistent, as it was here, arbitrators
refrain from concluding that the parties have mutually agreed upon a particular
course of conduct. No mutuality of
intent can be inferred where the alleged practice is inconsistent.
Brown-Forman Beverage Co., 103 LA 292 (Frocki 1994).
The issue of consistency of a past practice deals, among other things,
with the scope of the practice within an enterprise.
In Illinois Power Co.,93 LA 611
(Westbrook 1989), the arbitrator concluded that the employer did not violate the
collective bargaining agreement because the pay policy involved was one that
should be uniform throughout the bargaining unit. He reasoned:
issues can and should be handled in a decentralized way.
Others should be handled the same way throughout the bargaining unit.
If uniformity is necessary or appropriate, it can be achieved by using
the collective agreement as an instrument of control and it also can be achieved
by insisting that a practice is not binding unless the required mutual
acceptance has occurred either throughout the bargaining unit or at a level
where union and management representatives have unit-wide responsibilities.
It seems to me that the assumption that some practices should be
unit-wide in order to be binding is grounded in the concept of mutuality. One way of deciding whether a particular practice can be
binding in less than a unit-wide area is to ask whether this is the kind of
issue the parties would have dealt with on a unit-wide basis if they had thought
about it and been able to reach an agreement.
The answer to this question often will turn on whether there is a
reasonable basis for differential treatment in different parts of a bargaining
unit. At p. 616.
evidence on the record compels the conclusion that the practice of awarding
call-out pay in emergencies from the time the employee received the telephone
call to report for duty was limited to no more than two sections and possibly
even one section, the McDonald Pass section, if the testimony of the maintenance
bureau chief is credited. Testimony
that the practice existed in Helena was not clearly articulated.
The Union’s correspondence to the employer, submitted in evidence as
joint exhibits shows that the Union challenged the change in practice at the
McDonald Pass section. One section
man acting for one section of a few employees out of a much larger bargaining
unit of maintenance employees in the Department, as set forth in the recognition
provision of the parties’ collective bargaining agreement, cannot bind the
Department or one of its divisions to a past practice on an issue that requires
uniformity throughout the organization.
issue in dispute here is the kind the parties would deal with on a unit-wide
basis. It would be impractical and
unmanageable from the perspective of Department management to allow a section
man in one of its many sections to engage in a self-declared pay practice that
bound the whole Department. Section
men do not have unit-wide responsibilities.
They are lead men in a very small subdivision of a large statewide
the practice of allowing call-out pay to start when the employee received the
call was limited to a small part of the organization and was only known to a few
people, is evidenced by the testimony of the maintenance bureau chief.
He stated he learned of the practice in December of 2000 and immediately
stopped it. It was limited to the
McDonald Pass section and that is where the meeting was held to inform employees
the practice would be stopped.
Union’s correspondence to the maintenance bureau chief and his letter
acknowledging past management had allowed the practice notwithstanding, all the
evidence shows that the practice was very limited in scope and confined to a
small part of the unit. No mutuality of agreement can be inferred because the
practice was not unit-wide. It was
extremely limited in scope.
concluded that no past practice existed, as that principle has been defined in
labor arbitration, the Employer did not violate the collective bargaining
agreement when it discontinued the practice of starting call-out pay at the time
the employee received the telephone call. Accordingly,
I will enter an award.
grievance is denied.
Dated this the _____ day of February 2001.
Jack H. Calhoun