Employer Changes Mind After Calling in Snowplow Drivers; Required to Pay Anyway

The old saying goes: “If you don’t like the weather in Minnesota, shut up and move to Arizona,” or something like that.  In the great white north, we must always be prepared for changes in the weather; this includes public employers and their employees.  If we could control when the snow was going to fall, overtime would be unnecessary and weekend premiums would be non-existent, but we don’t get that luxury.

In Teamsters, Local 320 and Chisago County, the employer was anticipating a large storm to hit the area, and ordered its equipment operators to report to work on their day off in order to plow and salt roads.  This order resulted in the employees allegedly changing their plans.  Unfortunately (or fortunately, depending on how you look at it), the snow never came, and those employees who were ordered in on their day off were told to stay home on the morning they were to report.  The grievants did not work at all that day – their regular day off.  However, one of the grievants asked about receiving callout pay for the day, and was told that any request for such pay would be denied on their timecards.

The contract language in question stated, “An employee called back to work after he/she has completed his/her regular work day, or called out on his/her day off, shall receive a minimum of two (2) hours compensation at the overtime rate.”

The question of whether the employees, who performed no work on the day in question, should receive the two hours pay was the issue to be determined by Arbitrator Nancy Miller-Levin.

In her analysis of the language, the arbitrator first found that the language in question was ambiguous, in that it did not define the phrase “called out.”  So, in order to define the language, the arbitrator utilized dictionaries, which consistently defined “call out” as the act of requesting someone to perform work.

When the employer requested that the arbitrator instead look at the overtime language, which required employees to work, the arbitrator found that requiring work to be performed would nullify the callout pay provision, which requires a minimum of two hours pay when employees were called in to work on time off.

The employer also offered evidence of past practice in denying the employees callout pay.  However, at the end, the arbitrator found that no evidence was offered of callout pay not being provided to employees, other than the grievance at hand.  Finally, the employer argued that the grievance should have been denied because the grievants did not make the request for callout pay on their timecards.  The arbitrator quickly did away with that argument, as the grievants’ supervisors admitted to telling the grievants that their requests would be denied.

In the end, the dictionary definition won the day, and the employer was required to pay its employees two hours each for the request that the employees report to work on their day off.  While it may seem out of the ordinary for employees to receive callout pay when no work is performed, and the employer was doing employees a favor by giving them as much notice as possible, the fact that employees were notified of the requirement they come in was enough to trigger the mandatory minimum.

This decision goes to show the necessity of clear definitions within the four corners of the contract.  If employers wish for a desired effect when agreeing to an employee benefit, it is important for them to craft language that reflects exactly what they are looking for.  If you, or your organization, need assistance with the drafting of contract language, negotiating collective bargaining agreements, or enforcing your rights in grievance arbitration, contact Wiley Reber Law, for experience that works.