Tecumseh Products Co. v. Wisconsin Employment Relations Board

Currie, C. J.

(concurring in part, dissenting in part). I concur in all parts of the court’s opinion except Part 3, “Downtime,” but respectfully dissent with respect to that portion of the opinion.

The workers involved in the dispute over downtime pay were employed on assembly line 1. On the day in question, 22 employees were employed on this line. They were compensated on a group incentive basis whereby the total incentive earnings for the day would be divided among the 22.

On the day in question, one order of engines was in process on the line when the second shift started work. When the last engine of this order left the first station the next order was not ready to be introduced on the line because the crankshafts for that order had not yet been completely processed. As a result, several “pots” went down the line empty, the exact number of which was not determined in the testimony.

The total time the first station was without parts is not precisely known, but the various estimates range between ten and fifteen minutes. It is certain, however, that all the stations were never completely empty, since the first engine of the new order started before the last engine of the old order went off the back of the line.

The downtime the union sought was for the period of time each man stood idle due to the passage of empty pots; the line did not actually stop at any time.

The clause of the collective agreement which W.E.R.B. found the company to have violated in sec. 4 of art. X, which reads as follows:

“Section 4. Downtime will be paid for at base rate. In the event an employee encounters unavoidable delays beyond his control and he brings such delay to the foreman’s attention immediately, on such occurrence he shall be allowed downtime for all such delay until job is running properly. This shall not apply in case of shortage of stock or materials. An employee may be assigned any available work while on downtime.”

It is first claimed by W.E.R.B. and the union that by reason of this clause the agreement is clear and unambiguous on the point in issue and that the validity of the board’s decision is for that reason beyond question.

Sec. 4 of art. X as quoted would clearly come into play in the case of an incentive worker on an individual rate forced to remain idle for any period of time. It would also clearly come into play when a group of incentive workers, considered as one for incentive pay purposes, such as the assembly line 1 in question, were all idle at once. It is submitted, however, that it cannot apply to a group working as one on a group incentive task unless the entire group is idle. While some of the members of the group are working, the entire is achieving paid production — they are, as a group, performing work on an incentive basis.

In' this case the line was always running and some work was always being produced. Therefore, during the ten or fifteen minutes for which downtime is being claimed during the day in question all 22 in the group were receiving some incentive pay earnings. If these 22 employees are to be paid downtime at their base rate in addition, they will be receiving more pay than contemplated by sec. 4 which limits downtime to the base rate. It seems clear that the company’s contention is correct that the controlling section of the agreement is sec. 1 of art. X rather than sec. 4. Sec. 1 provides:

“The time standards are set to enable the average worker to consistently earn at least twenty percent (20%) over their base rate working at an average incentive pace. The base rate for each respective job classification shall be the only guarantee for each hour worked, except as otherwise in this agreement expressly provided.”

So long as there is no shutdown of the line, all 22 employees being on incentive earnings, the only relief the employees are entitled to is in a situation where the employees’ incentive rates fall below 120 percent of the base rate. The incentive rate should be set so that delays not resulting in the shutting down of the line are taken into consideration in establishing the rate.

However, viewing the matter most favorably to W.E.R.B. and the union, there is at the most an ambiguity as to whether sec. 1 or sec. 4 is applicable to the instant set of facts. This being the case, past practical construction should govern. The undisputed testimony is to the effect that downtime was never paid except when the line was entirely shut down. While it is true these witnesses who gave such testimony were not asked the direct question whether there had ever occurred instances in the past when a series of “pots” on the line were empty, the clear implication of such testimony is that this had occurred. Common experience dictates that this must have been so.

The majority W.E..R.B. decision never touched on this issue of practical construction, although federal law applicable to the interpretation of collective-bargaining contracts is to the effect that great weight is to be given to such practical construction. United Steelworkers v. Warrior & Gulf Navigation Co. (1960), 363 U. S. 574, 580, 80 Sup. Ct. 1347, 4 L. Ed. (2d) 1409; Oddie v. Ross Gear & Tool Co. (6th Cir. 1962), 305 Fed. (2d) 143, 151, certiorari denied (1962), 371 U. S. 941, 83 Sup. Ct. 318, 9 L. Ed. (2d) 275.

For these reasons I would affirm that part of the circuit court’s order which reversed that portion of W.E.R.B.’s order which found the company guilty of a violation of contract with respect to the downtime issue.

I am authorized to state that Mr. Justice Hallows joins in this opinion.