IBEW System Council T-9 and Pyle Rome Partner Al Gordon O'Connell Win Hard-Fought Sunday Overtime Case Using Past Practice and Bargaining History

When parties put new language in a collective bargaining agreement, what they say (or don't say) to each other during bargaining can be the decisive factor in interpreting the contract. Relying on that interpretive principle, the IBEW System Council T-9 and Pyle Rome partner Al Gordon O'Connell convinced a neutral arbitrator to order Consolidated Communications, Inc. (CCI) to reinstate the previously existing rule that all work on Sunday is counted as overtime.

In the last round of negotiations, CCI and the Union agreed to switch to a system where overtime is earned after eight hours in a day or forty hours in a week instead of for all time worked "outside of the regularly scheduled tour."  They made this change based on the Company's concern that employees were taking unpaid time off during the week and then earning overtime for Saturday hours. However, the parties did not discuss any change to the rule that all time worked on Sunday is overtime, and they left language in the contract stating that Sunday is not part of the regular work week.  After the new CBA went into effect, the Company stopped counting Sunday hours as overtime, and the Union grieved the matter.

The arbitrator found that, although the language could be read either way, the fact that the parties didn't discuss Sunday overtime changes indicated that there was no mutual agreement to make that change. As the arbitrator stated in her award: "[A] party’s need to explain its intent is particularly important and poignant when the party is seeking, as here, to change many decades of past practice between the parties."  Ultimately, the arbitrator ordered CCI to return to the status quo and to make any affected employees whole.