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FEDERAL MEDIATION AND CONCILIATION SERVICE

In the Matter of the Arbitration between FMCS No. 10-50764


Grievant Earl Jones
TEAMSTERS STATE, COUNTY AND
MUNICIPAL WORKERS LOCAL NO. 214,
Union,

and

ROSCOMMON COUNTY
ROAD COMMISSION,
Employer.
______________________________________/

OPINION OF THE ARBITRATOR

October 23, 2010

After a Hearing Held August 12, 2010


At the Road Commission Offices in Prudenville, Michigan

For the Union: For the Employer:

Katherine Smith Kennedy Michael R. Kluck


Pinsky Smith Fayette & Kennedy Michael R. Kluck & Associates
146 Monroe Center, NW, Suite 805 4265 Okemos Road, Suite G
Grand Rapids, MI 48503-2833 Okemos, MI 48864
I. The Dispute

This dispute between the Teamsters State, County and Municipal

Workers Local No. 214 (“Union”) and the Roscommon County Road

Commission (“Employer” or “Road Commission”) concerns the overtime

provisions of their collective bargaining agreement (JX 1 or “CBA”). These

provisions are contained in Appendix “B” to the CBA, which is entitled

“Overtime and Hours of Work”. Section 7 of that Appendix provides in

pertinent part:

In order to equalize the opportunities for overtime work assignments


among employees at each garage, the Employer shall rotate overtime
assignments by offering available overtime first to the employee who has
had the least number of opportunities for overtime. Overtime
opportunities shall be the total number of overtime hours worked plus the
total number of overtime hours refused and/or not available to work.
Employees who refuse overtime, or are not available to work overtime
when called, shall be charged with the number of hours they would have
otherwise been able to work (unless the employee is on an approved
vacation or sick leave).

This dispute arises because the CBA does not specify precisely how “the

number of hours they would have otherwise been able to work” is to be

determined.

A contemporaneous Letter of Agreement is attached to Appendix “B”.

Paragraph 2 of that Letter provides in pertinent part:

The Employer will post each payroll period an updated overtime list
detailing each employee’s overtime hours worked and the overtime
refused and/or not available. The list will reflect data from the preceding

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twenty-six (26) pay periods.

Paragraph 3 of the foregoing Letter recites that an “Agreement dated

September 14, 2005” is attached. That Agreement is embodied in a Notice

regarding Overtime Responsibilities. The Notice provides in pertinent part:

In order to maintain a satisfactory record for acceptance of overtime


opportunities, employees must work at least 50% of all overtime
opportunities offered to them. …

Any employee whose record of overtime opportunities worked falls


below 50% shall be subject to discipline as follows:

1st offense Verbal warning (documented in writing)


2nd offense One (1) work day suspension without pay
3rd offense Subject to lengthy suspension without pay or discharge

At six o’clock in the morning of Sunday, February 22, 2009, Grievant

was called to work overtime in Department C, the Central Garage. He agreed to

come in but informed that caller that he could work only until ten o’clock that

morning. As noted in the Road Commission’s brief @ 1, the caller was a Union

member, not a member of management, and Grievant did not obtain permission

from management to work only 4 hours.

Grievant was assigned to work in the shop, along with another employee

who worked there for 8½ hours. According to Road Commission records, a total

of 11 employees other than Grievant worked overtime in Department C that

Sunday. JX 3. Their number of overtime hours worked ranged from a low of 7

to a high of 8½.

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Three employees who were called to work overtime did not answer their

phones, so messages were left on their answering machines; none of the 3

showed up for work. Each one was charged with declining 7 hours of overtime.

Grievant, who worked 4 hours, was charged with declining 3 hours of overtime,

to which he objected.

A Grievance Report was filed on March 2, 2009. JX 2. Grievant’s

Statement in the Report said:

On 2-22-09 at 6:00 a.m. I was called in to work (overtime) in the shop. At


that time I informed the nightman that I could only work until 10:00 a.m.
I worked 4 hours but I was charged 3 additional hours.

The Remedy Requested in the Report was:

Do not charge any additional hours; 4 hours was the minimum number of
hours worked on 2/22/09. “Charge the least amount of hours worked”;
this is an ongoing problem that needs to be resolved. The Teamsters #
214 would like to request proceeding to Step 4 Arbitration to resolve this
grievance. (Emphasis supplied.)

Although Grievant retired on April 10, 2010, after 31 years with the Road

Commission, the parties proceeded with arbitration, as requested in the

Grievance Report. A hearing was held on August 12, 2010, in the Road

Commission offices in Prudenville, Michigan. A transcript of the hearing was

made (“TR” or “T”). Briefs were filed by both parties in October of 2010.

II. Decision as to Overtime Hours Charged to Grievant

When parties offer different interpretations of contractual language,

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the arbitrator will uphold the more reasonable one. Elkouri & Elkouri, How

Arbitration Works (ABA/BNA 6th ed 2003) @ 470-472. The Union would

read Appendix “B”, Section 7 narrowly, emphasizing the “when called”

language and seeming to ignore subsequent events. Union brief @ 2, 4, 7.

The Road Commission points to the exclusive list of exceptions,

“approved vacation or sick leave”. Employer brief @ 5. Without citation, the

Commission appears to be appealing to the rule of contract interpretation,

expressio unius est exclusio alterius (“the expression of one thing is the

exclusion of another”):

Frequently, arbitrators apply the principle that “when parties list


specific items, without any more general or inclusive term, they intend
to exclude unlisted items, even though they are similar to those
listed.”

Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003) @ 467-

468; see also Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987)

@ 352-353.

Although the Union argues that no one told Grievant that he could not

leave early (Union brief @ 5), the testimony of Union member Gary Schwemle,

who called Grievant to work overtime, makes clear that Grievant was offered an

open-ended assignment:

Q. And when you call in workers on the weekends or holidays for a


snow event, do you ask them to work a certain amount of hours or do you
just ask them to come in?

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A. Just have them come in. Because I have no clue how long it will take
them to get the job done. (Schwemle T.14)

Q. … when you call somebody in on a weekend for a snow event, such


as what has occurred on February 22, 2009, do you ask the person you’re
calling in to work a specific amount of time?

A. No we don’t. We just ask if they want to come in and work. And if


they say yes, then we say, “Okay. Come on in.” And then if they say no,
we put, “no.” And then – because we have no clue how long they’re
going to work after they are in here. (Schwemle T.25)

From Union brief @ 3.

It is equally clear that Grievant left work to attend to his own business,

because he testified as follows:

Q. Okay. So it’s something that was in your life that came up that you
wanted to be gone on a Sunday afternoon. Correct?

A. Yes.

Q. All right.

A. But that’s not to say if they would have had a lot of breakdowns
where they needed me, that I would not have stayed, but that was never
mentioned to me that they needed me to stay. (Jones T.37).

From Union brief @ 6.

Despite Grievant’s belated offer to stay if needed, it is undisputed that all

work in the shop had not been completed by the time Grievant left, inasmuch as

his coworker continued to work in the shop for another 4½ hours. Had Grievant

remained on the job, the shop work might have been completed earlier, but there

is no way to tell at this late date.

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It is also clear that the Union agrees that an employee cannot just walk

away from overtime:

When another unlawful overtime charging incident occurred in January,


the Union grieved. (See Jt Ex 6, 1-27-09, occurrence 1-24-09). … Upon
learning new information regarding the 1-24-09 grievance, when the
Union found out that there was an intervening factual issue2 making the
situation on 1-24-09 unique to the problem, the Union appropriately
withdrew the 1-28-09 grievance …
2
It was discovered by the Union that Grievant Kevin Simpson had
abruptly left work and had not told his foreman he was leaving during the
1-24-09 overtime shift.

From Union brief @ 8-9.

The interpretation advocated by the Union contains a loophole which

could undermine the intent regarding overtime, namely, that employees could

manipulate total overtime hours simply by having one employee work very few

hours. Employer counsel alluded to this loophole at the hearing but did not brief

it. TR @ 53-54. Indeed, if the Union’s interpretation were followed literally and

if an employee said “yes” to an overtime request but then failed to show up so

that he worked zero hours, then no one would be charged with any hours

Declined, because zero would be the minimum number of hours worked.

The language of the “Agreement dated September 14, 2005” (supra @ 3

and Union brief @ 2) supports the Employer’s interpretation, because phrases

such as “overtime opportunities offered” and “overtime hours offered” are used.

The arbitrator finds that Grievant was offered some overtime hours on February

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22, 2009, which he chose not to work, and that he was not “on an approved

vacation or sick leave” (TR @ 33). Thus he properly was charged with 3 hours

of overtime, over and above the 4 he actually worked. For all practical purposes

that issue is moot, inasmuch as Grievant no longer works for the Road

Commission and was not disciplined over those 3 hours.

III. The General Issue of Charging Overtime

The parties did not stipulate issues. TR @ 4. In the Road Commission’s

brief, the Commission takes the position that once the issue of Grievant’s

February 22, 2009 overtime hours is resolved, there is nothing more for the

arbitrator to address. Indeed, nowhere in its brief does the Commission discuss

any of the Overtime Lists (infra Section IV), several of which the Commission

itself introduced, or the testimony concerning those Lists and their significance.

The arbitrator concludes that the issue of whether the proper application

of the overtime rules is to charge overtime hours based upon “the least amount

of hours worked” was properly presented and should be addressed. As stated in

the Remedy Requested portion of the Grievance Report, that “is an ongoing

problem that needs to be resolved.” Moreover, much of the testimony was

devoted to the issue. The same deference is due an arbitrator’s determination of

the issues before him as is his interpretation of the collective bargaining

agreement. Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003)

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@ 297. See also Township of Wyckoff v PBA Local 261, 409 NJ Super 344,

355-356; 976 A2d 1136, 1143 (2009).

Because the CBA is silent on the issue, the Union appeals to past

practice, and on page 6 of the Road Commission’s brief is a reference to “the

practice of the Road Commission,” but without any explanation of just what that

practice is. In Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed

2003), the authors quote Arbitrator Jules J. Justin’s criteria for proof of a past

practice:

“In the absence of a written agreement, ‘past practice,’ to be binding on


both Parties, must be (1) unequivocal; (2) clearly enunciated and acted
upon; (3) readily ascertainable over a reasonable period of time as a
fixed, and established practice accepted by both Parties.”

Id. @ 607-608; footnote omitted.

The arbitrator has encountered allegations of past practice in numerous

situations. For cases in which the arbitrator found a past practice, see UAW &

Its Local 62 and Jackson Innova Corp, 105 LRP 55078 (Arb 1989)

(uncontroverted evidence that work crew composition had been the same for

almost 30 years); Amalgamated Transit Union Local #725 and Birmingham-

Jefferson County Transit Authority, 105 LRP 55096 (Arb 1997) (practice of

assigning overtime followed); Feralloy Corp, 115 LA 346, 01-1 ARB ¶ 3711,

28 LAIS 1033 (Arb 2000) (policy of accommodating disabled employees).

For cases in which he found evidence of past practice lacking, see Local

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7-591, Oil, Chemical and Atomic Workers Int’l Union and Pennwalt Corp,

105 LRP 55076 (Arb 1988) (new and changed conditions); USWA, Local 1900

and Allor Mfg Inc, 105 LPR 55080 (Arb 1990) (only 12 employees allowed to

change shifts, each under different circumstances); Graphics Communications

Int’l Local Union 394-S and Top Flight, Inc, 105 LRP 55082 (Arb, 1991)

(changes in contract language and paucity of incidents); USWA Local 81 and

Dravo Lime Co, 105 LAIS 55084 (Arb 1995) (only 4 incidents of discipline

for drug and alcohol abuse, two of which involved grievant himself); IBEW,

Local 2356 and Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Arb 2001) (no

acceptance by higher management); UFCW Local 867 and Cargill Salt Co,

03-2 ARB ¶ 3560, 31 LAIS 467, 103 LRP 57379 (2003) (new contract

provisions); Teamsters, Local 214 and Shiawassee County Sheriff, 05-1 ARB

¶ 3096, 33 LAIS 8, 105 LRP (Arb 2005) (paucity of examples of funeral

leave); Int’l Paper Co, 127 LA 564, 10-1 ARB ¶ 4885, 110 LRP 13423 (Arb

2010) (contract language not ambiguous).

IV. The Method of Charging Overtime Hours

It appears that in fact the Road Commission uses the method advocated

by the Union, except when an employee works some overtime but not all the

hours the Commission wanted him to work, as Grievant did on February 22,

2009. In such a case, the overtime charges appear to be based upon the fewest

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hours worked by those employees who stayed as long as they were needed. An

examination of the exhibits supports those conclusions.

A total of 18 Overtime Lists was introduced, one for each of 18 days

selected from 2007-2009, JX 3, UX 7A-N, and EX 8-10. Counsel for the Road

Commission made some initial objections regarding UX 7A-N, which the

arbitrator initially sustained. TR @ 22-23. However, subsequent testimony by

Jeffrey Jeske, a Union steward, made it clear that Overtime Lists are regularly

kept business records, on which both the Road Commission and the Union rely.

TR @ 39-40. Hill & Sinicropi, Evidence in Arbitration (BNA 2nd ed 1987) @

144-146; Elkouri & Elkouri, How Arbitration Works (ABA/BNA 6th ed 2003)

@ 371. They are thus admissible.

Although Overtime Lists may cover different Departments, all the Lists

contain the same type of information. At the top of each Overtime List appears

the payroll period in which the Call in Date falls. For example, the payroll

period for JX 3, which has a Call in Date of 2-22-09 (the date of the incident in

question), is 2-18-09 TO 3-3-09. A payroll period is 2 weeks, and 26 such

periods constitute the “year” used for ranking employees for overtime eligibility

according to total overtime hours. See Appendix “B”, Letter of Agreement,

Paragraph 2. For example, EX 11 shows Overtime from 2/20/2008 through

2/17/2009. The rankings of employees for overtime eligibility are changed

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every payroll period. TR @ 48.

Each Overtime List is broken down by Department. For example, JX 3

covers Departments A, C, P, and T. Under each Department heading are 10

columns: | Phone [number] | Emp # | Last, First [names] | OT Hrs [taken from an

Overtime Worked list such as EX 11] |; then 4 columns under the heading “OT

ACCEPTED”: | Yes | No | Busy | A/M [answering machine] |; and finally 2

columns under the heading “WORKED/CHARGED”: | Worked | Declined |.

Within each Department, employees are ranked by OT Hrs, the employee with

the fewest hours being listed first, down to the employee with the most hours

being listed last.

The Union claims that the procedure for charging overtime hours used in

the past is to look at the fewest hours worked in each Department and to charge

employees in that same Department with overtime hours based upon that lowest

number. For example, JX 3 indicates that on 2-22-09, in Department A, 4

employees worked 7 hours each and 1 worked 8 hours. The lone employee who

refused to work overtime was charged with 7 hours, the fewest hours worked by

an employee in that Department. Analysis of Departments P and T listed in JX

3 reveals a consistency with the Union’s contention. The lone inconsistency is,

of course, Department C in which the grievance arose.

However, more inconsistencies appear in other Overtime Lists. In UX

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7A, the Overtime List for 1-24-09, under Department C, Gregory Wrangler

worked 3 hours of overtime, and Arthur Allen worked 2 hours of overtime and

declined 1. All other employees who worked overtime in Department C worked

for more than 3 hours. Allen and 4 employees who did not work were charged

on the basis of 3 hours.

In UX 7B, the Overtime List for 12-24-08, again in Department C,

Gregory Wrangler and Kevin Simpson worked 7.5 hours of overtime, and Paul

Affholder worked 3.5 hours of overtime and declined 4. All other employees

with overtime worked more than 7.5 hours. Affholder and an employee who did

not work were charged on the basis of 7.5 hours.

In EX 9, the Overtime List for 2-1-09, once again in Department C, Leon

Terrian and Jeffrey Jeske worked 4 hours of overtime, and Gordon Swanson

worked 3½ hours of overtime and declined ½ hour. All other employees with

overtime worked more than 4 hours. Swanson and 8 employees who did not

work were charged on the basis of 4 hours.

In EX 10, the Overtime List for 2-14-09, this time in Department A,

Brian Crittenden and Danny Kinnamon worked 6½ hours of overtime, and

Lance Cherven worked 4½ hours of overtime but declined 2 hours. All other

employees with overtime worked more than 6½ hours. Cherven and an

employee who did not work were charged on the basis of 6½ hours.

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EX 8, the Overtime List for 12-25-08, presents a true anomaly involving

Grievant himself, for which there is an explanation. In Department C, Leon

Terrian and Chester Butler worked 4 hours of overtime. All other employees

who worked overtime, with the exception of Grievant, worked more than 4

hours. Six employees who did not work were charged on the basis of 4 hours.

EX 8 indicates that, although Grievant worked only ½ hour on that

Christmas Day, he was not charged with an additional 3½ hours as might be

expected. However, there is a parenthetical notation beside Grievant’s name—

(Fire). In addition to working for the Road Commission, Grievant was a

fireman.1

The arbitrator infers that the foreman who completed the

WORKED/CHARGED columns on the Overtime List for that Christmas Day

elected not to charge Grievant with additional hours because Grievant was

called away from Road Commission work to fight a fire. Thus, after allowance

is made for this truly exceptional situation, the overtime hours charged on EX 8

are consistent with those charged on the other Overtime Lists.

From examination of the Overtime Lists and the foregoing analysis, a

pattern appears. The Road Commission uses the rule advocated by the Union,

“Charge the least amount of hours worked”, except when the employees with

1
Grievant still is a fireman. TR @ 28, 50.

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the fewest hours Worked left early. In such a case, the Road Commission bases

the overtime charges upon the fewest hours worked by those employees who

stayed as long as they were needed.2 Although no evidence was presented as to

what happens if no one stayed as long as needed, it would be logical and

consistent with the other situations for hours to be charged based upon the

fewest hours an employee was needed.

The Union complains that these Overtime Lists in fact reflect a change in

practice, which began in December of 2008. Union brief @ 8. However, the

only List that would seem to support that assertion is UX 7E, on which two

employees in Department B are checked as having accepted overtime but were

not credited with any hours Worked or charged with any hours Declined. To

borrow from the Union’s brief @ 8, “There was a chance that it was simply a

recording mistake.”

The party asserting a practice bears the burden of proving its existence.

Hill & Sinicropi, Management Rights (BNA 1986) @ 29-30. Not only was the

evidence of any different pre-December 2008 practice inconclusive, but proof of

its acceptance by higher management was non-existent. See Elkouri & Elkouri,

How Arbitration Works (ABA/BNA 6th ed 2003) @ 608 n 14, citing, inter alia,

Sperry Rand Corp, 54 LA 48, 52 (Volz Arb 1971) (distinguishing acquiescence


2
It should be noted that this is a relatively generous rule as applied to Grievant’s situation on 2-22-09, because he
normally would have been expected to stay as long as the other employee who worked in the shop that day, 8½
hours. TR @ 27.

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by individual supervisors from mutual agreement by contracting parties); Hill &

Sinicropi, Management Rights (BNA 1986) @ 26-30 (“Mutuality”); IBEW,

Local 2356 and Okonite Co, 01-2 ARB ¶ 3830, 28 LAIS 3805 (Arb 2001).

V. An Algorithm for Charging Overtime Hours

In opening statement, Union counsel described the procedure for

charging overtime as difficult to understand. TR @ 5. It therefore may be

helpful to set forth an algorithm which the parties may use in charging overtime

hours within a Department.

Step 1. Identify the employees who did not leave early.

Step 2. If at least 1 employee did not leave early, go to Step 3. Otherwise, i.e.,

if all employees left early, go to Step 5.

Step 3. Among the employees identified in Step 1, determine the fewest hours

Worked. That number is the basis for determining overtime hours

Declined.

Step 4. Go to Step 7.

Step 5. Determine the number of hours each employee who left early was

needed.

Step 6. Determine the fewest hours an employee who left early was needed.

That number is the basis for determining overtime hours Declined.

Step 7. Charge each employee who said “No”, for whom there no answer

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when called, or was left a message but did not show up with the

number of hours Declined equal to the basis determined in Step 3 or

6.

Step 8. Charge each employee who showed up for work but left early with

the number of overtime hours Declined which is equal to the

difference between the basis determined in Step 3 or 6 and his hours

Worked.

Step 9. End.

Exceptional cases may, of course, arise, such as when an employee

becomes ill while working overtime. In that case, it might not be fair to use his

hours Worked in determining the basis for charging overtime hours, and he

probably should not be penalized with hours Declined, as he may have a valid

excuse of “sick leave”. The parties will simply have to address unusual

situations when they occur.

VI. Award

For all the foregoing reasons, the grievance is DENIED IN PART AND

SUSTAINED IN PART.

Dated October 23, 2010 ________________________________


E. Frank Cornelius, PhD, JD, Arbitrator

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