Ohio Turnpike Commission
Teamsters Local 436
119 LA (BNA) 1028
January 29, 2004
The facts of this case are not in substantial conflict. It is apparent from the facts that the employer holds, on occasion, Step 2 grievance meetings near the end of a shift. Some of those meetings run past the end of the shift. The employer did not pay for such time outside of the steward's normal work hours unless the Step 2 meeting occurred on the employee's day off. Previously the arbitrator held that absent a showing by the Commission that holding a meeting during work hours was unsafe or inefficient the contract required that the Commission pay the steward for attendance if the time used was outside the normal working hours. The union now seeks payment at time and a half when such hours are outside the normal work hours. This is an issue not raised prior hereto but acquiesced to by the parties in order to trigger the instant grievance and Opinion and Award following.
Contract language pertinent to the matter at hand was revealed in the contract at Article 3.1. That language stated the following:
“3.1 In addition to their regular duties, stewards shall be permitted a reasonable amount of time, without loss of pay to investigate and present grievances and represent employee in meetings with employees on Commission premises. Such activities shall be permitted, providing they do not interfere with the safe and efficient operations of the Commission. Employees having a legitimate need for the services of their steward shall notify their supervisor. Before performing his or her duties, the steward shall first notify and make mutual arrangements with his or her supervisor. Supervisors shall not unreasonably withhold consent.” (Emphasis ours)
The contract also contained a paragraph known as paragraph 35.1. It revealed the following:
“35.1 All employees shall be entitled to receive one and one-half (1-1/2) times their regular hourly rate of pay for all hours worked in excess of eight (8) hours in any workday or forty (40) hours in a work week.”
Paragraph 38.1 of the contract revealed the following:
“38.1 All toll collectors shall be paid time and one-half (1-1/2) times for all hours worked past eight (8) in a day or forty (40) in a week.”
It is on the basis of those three paragraphs that this matter has grounding in the contract and arises under favor, therefore, of the language in the contract of collective bargaining. The question arises as to whether or not the language under 3.1 as stated above is clear and unambiguous on its face as to whether the “reasonable amount of time without loss of pay to investigate and present grievances and represent employees in grievances and of __” is “work” under the purview of the “work duties” of that employee.
By way of argument the employer provided in its brief to the arbitrator two prior arbitration decisions, one found under 5 LA 182. Head note number one in that case, entitled Ford Roofing Products Co. revealed the following:
“Under contract providing that, while attending labor-management meetings, employees shall suffer no loss of time or pay, employer met his obligation by paying employees who attended such meetings during their off-shifts a minimum of four hours at straight time in accordance with call in pay provisions. Employer is not required to apply overtime rate, which union demanded on ground that conference time constituted work in excess of eight hours, since such time cannot be considered `time worked' and intent of contract is to guarantee employees their regular pay for time so spent.”
A review of that case on a reading failed to reveal a pattern of “work.”
A second case relied on by the employer is a case know as Tinker Air Force Base, 91 LA 758, head note one, revealed the following:
“Employer properly refused to pay steward overtime for two hours that arbitration hearing on his own grievance extended beyond regular shift, where collective bargaining contract provides that relevant witnesses `otherwise in a duty status shall not suffer loss of pay,' grievant was paid for regular duty hours, and employer consistently has refused such overtime in such circumstances.”
That case involved an issue of negotiating time, not investigation, hearing time or employee representative time.
The union on the other hand argued that “hours worked” included and is contemplated in the contract as the stewards' regular work duties as is indicated in Article 3.1 of the contract. The union argued that the clear and unambiguous language of the contract is sufficient to support several work duties for the steward and his included work duties of investigating and presenting grievances and representing employees. Thus, the union argued that a steward has two job duties, namely his union duties and his duties as an employee of the employer, both of which are recognized and contemplated by the contract.
There is also indicated in that contract as was indicated in paragraph 35.1, stated in full above, that any employee working over forty hours per week and eight hours per day is entitled to one and one half times their regular hourly rate for all hours worked in excess.
Thus from all of this, it is apparent that the employer believes and therefore avers that representing employees at hearings, investigating grievances and doing similar union work is not the “work” for which the steward is paid a wage, that wage being triggered by the regular assigned duties of the employer. On the other hand the union argued that a steward not only has the duties directed toward him by the employer but also the duties of the steward as indicated and understood from 3.1 of the collective bargaining agreement.
It was upon those facts, statements, allegations, denials and clauses, that this matter rose to arbitration for Opinion and Award.
I read with interest the two cases cited by the employer, namely Ford Roofing and Tinker Air Force Base, both of which were cited herein above. I find that the Ford Roofing case while it propounds a broad statement in favor of the employer in this matter is not founded on similar facts whatsoever but rather founded upon contractual language that is not similar to the collective bargaining agreement herein above. As to the Tinker Air Force Base, that revolves itself around negotiating time and not grievance time, nor under similar contractual language as is found in the instant matter.
It is true that wages are a creature of the contract. They must be stated in clear and unambiguous language and without those thoughts forwarded in the contract of collective bargaining an employee cannot obtain the wage or overtime premium pay that he thinks existed. In the current contract, however, the employer has recognized that the steward not only has regular work duties but also shall be granted a reasonable amount of time “without loss of pay” to investigate and present grievances and represent employees and the like in his union activities. That is part and parcel of the recognized work load of the steward and the employer knew about it because of the writings of the agreement. That language is clear and unambiguous on its face and to determine otherwise would be a misreading of the contract.
Furthermore, the “pay” that is spoken to is not merely straight time pay but overtime pay or the employee's wage. Paragraph 35.1 of the collective bargaining agreement states that all employees shall be entitled one and one half times the rate of their regular hourly pay for all hours worked in excess of eight hours in any work day or forty hours in any work week. That is the pay eluded to in the agreement. I must hold therefore that paragraph 3.1 draws its essence in the amount of pay from paragraph 35.1. The wage of an employee is that which is agreed to in the contract by clear and unambiguous language and I find that reading 3.1 and 35.1 together creates the clear and unambiguous language and definitions for the words “pay,” and “work” under the contract for the steward. Contractual clauses are to be supportive of each other, supplemental and not disjunctive.
The same is true as to Article 38.1. That particular paragraph stated that toll collectors shall be paid one and one half times their pay for any hours in excess of eight hours in a day or forty hours in a week. That is certainly clear and unambiguous language and more need not be said about it.
The grievance is granted and stewards shall be paid a premium wage for all hours expended over the eight per day or forty per week.