2001 NAC 111 State of Montana Department of Transportation and Teamsters Union Local 2

Title: State of Montana Department of Transportation and Teamsters Union Local 2
Date: Febuary 2001
Arbitrator: Jack H. Calhoun
Citation: 2001 NAC 111

IN THE MATTER OF THE GRIEVANCE

ARBITRATION BETWEEN:

TEAMSTERS UNION, LOCAL 2, )

)

and ) OPINION

) AND

STATE OF MONTANA, ) AWARD

DEPARTMENT OF TRANSPORTATION. )

)

BEFORE

JACK H. CALHOUN

ARBITRATOR

HEARING HELD

November 28, 2001

Helena, Montana

______________________________________________________________________________

REPRESENTATION

FOR THE UNION: FOR THE EMPLOYER:

Mark W. Brandt Nick A. Rotering

Business Representative Staff Attorney

P.O. Box 2648 P.O. Box 201001

Great Falls, Montana 59403 Helena, Montana 59620-1001

BACKGROUND

Teamsters 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.

ISSUE

The 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

The following provisions of the parties’ collective bargaining agreement is relevant to the issue in dispute.

ARTICLE 8

PAY AND HOURS

. . .

Section 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.

Employees 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.

. . .

ARTICLE 6

MANAGEMENT RIGHTS

The Employer reserves the right to employ, promote, dismiss or release and to direct the working forces, subject to the terms of this agreement.

In 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.

STATEMENT OF FACTS

The 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 maintenance.

Each 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.

Several 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.

The 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.

For 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.

During 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.

Employees 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.

Occasionally 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.

In 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

earlier 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 report.

The 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.

The 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.

The 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.

The 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.

The 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.

If 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.

The 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.

In 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.

Employees 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.

The 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, 2^nd Ed. §10.01[1], Bornstein, Gosline and Greenbaum as general editors.

There 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.

Before 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 14^th 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.

In 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:

Some 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.

The 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.

The 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 organization.

That 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.

The 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.

Having 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.