STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
In the Matter of the Petition of
EAU CLAIRE COUNTY
Requesting a Declaratory Ruling Pursuant to
Section 111.70(4)(b), Wis. Stats.,
Involving a Dispute Between Said Petitioner and
GENERAL TEAMSTERS UNION, LOCAL NO.
WISCONSIN PROFESSIONAL POLICE
EMPLOYEE RELATIONS DIVISION
DECISION NO. 29305
Mr. Keith R. Zhems, Corporation Counsel, 721 Oxford Avenue,
Eau Claire, Wisconsin 54703-5481,
for the County.
Mr. Richard L. Thal, General Counsel, 7 North Pinckney
Street, Suite 200, Madison, Wisconsin
53703, for the Wisconsin Professional Police Association.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., Attorneys at
Law, by Ms.
Marianne Goldstein Robbins, 1555 North RiverCenter Drive, Suite 202, P.O.
Milwaukee, Wisconsin 53212, for the General Teamsters Union, Local No. 662.
FINDINGS OF FACT, CONCLUSION OF LAW AND
On August 30, 1996, Eau Claire County filed a petition with the
Relations Commission seeking a declaratory ruling pursuant to Sec. 111.70(4)(b), Stats., as
County's duty to bargain with the Wisconsin Professional Police Association (WPPA) over
matters. WPPA and General Teamsters Union, Local No. 662 (Teamsters) filed written
statements with the Commission on September 9 and 11, 1996, respectively.
Hearing on the petition was scheduled for November 18, 1996 and
then indefinitely postponed at the request of the parties so that settlement discussions could
take place. Settlement did not
and the matter was scheduled for hearing to be held June 12, 1997. Prior to that hearing,
advised the Commission that they were preparing a stipulation of facts and
that the hearing should be canceled. The Commission received a stipulation of facts on
1997. The parties thereafter filed written argument in support of their respective positions,
of which was received August 20, 1997.
Having considered the matter and being fully advised in the premises, the
makes and issues the following
FINDINGS OF FACT
1. The Petitioner is a quasi-municipal corporation duly organized under the laws of
Wisconsin, with its principal offices located in the County Courthouse, 721 Oxford Avenue,
Claire, Wisconsin, 54703, and is an employer within the meaning of MERA, Sec. 111.70,
2. The Respondent, General Teamsters Union Local No. 662, "Teamsters" is a union
affiliated with Wisconsin Teamsters Joint Council No. 39, Central States Drivers Council and
exclusive bargaining agent for non-supervisory deputy sheriffs in the Eau Claire County
3. Prior to July 1, 1990 Merle Baker was the business representative of Teamsters
as chief spokesperson in negotiations for the non-supervisory deputy sheriffs. From July 1,
to August 1, 1994 Christel Jorgensen represented the deputy sheriff unit. From August 1,
October 15, 1996 Jorgensen shared responsibility for the unit with James Newell, who
full responsibility for the unit until February 17, 1997 when Michael Thoms became the
representative for the unit.
4. The Respondent, Wisconsin Professional Police Association/Law Enforcement
Relations Division, "WPPA/LEER Division" is a union, which is the exclusive bargaining
civilian correctional officers in the Eau Claire County Sheriff's Department.
5. Len Jaglarski is the business agent of WPPA/LEER Division and acts as chief
spokesperson in negotiations for the civilian correctional officers.
6. The Eau Claire County Board of Supervisors created six new positions, four
January 1, 1989 and two effective June 1, 1989 entitled civilian correctional officer to staff
newly expanded portion of the county jail and thereafter when vacancies occurred in deputy
positions to convert such positions to correctional officer positions.
Teamsters filed a grievance which was ultimately sustained by WERC Staff
David E. Shaw, on November 2, 1989. The Arbitrator found the County had breached the
Collective Bargaining Agreement by creating the position of civilian correctional officer,
the County to cease and desist from using civilian correctional officers to perform the duties
jailers and directed back pay for the number of hours worked by the civilian correctional
at the overtime jailer rate. A copy of the award is included in the record as Exhibit 1. A
the 1988-89 contract on which the award is based is included in the record as Exhibit 2.
Teamsters and Eau Claire County entered into negotiations regarding the civilian
correctional officers, which resulted in enhanced wages and benefits for deputies including
creation of Sections 17.09, 17.10 and 17.11 of the non-supervisory unit. Section 17.09
overtime regardless of classification to be first offered to protective service Jailers before
any overtime to civilian correctional officers. Section 17.09 was first incorporated for
the period January 1, 1990 through December 31, 1991 and was continued in all
contracts. The provision states:
With the exception of the Jail, the Sheriff shall not assign
non-protective service employees
to protective service positions, or vice-versa. Shift selection and overtime opportunities shall
offered first to protective service Jailers, then to Civilian Correctional Officers, based upon
A copy of the 1990-91 non-supervisory unit contract is included in the record as
The relevant contract language has remained unchanged in all successor non-supervisory unit
contracts. As the language indicates, preference for shift selection and overtime applies only
"protective service Jailers", not to deputy sheriffs holding classifications outside the Jail such
patrol officer, detectives or process server.
9. Based on the successful conclusion of negotiations, on March 8, 1990 Eau Claire
Teamsters Union Local No. 662 and the Eau Claire County Sheriff signed an agreement
litigation arising out of the reorganization of the Sheriff's Department involving the civilian
correctional officers. A copy of the Resolution and Fact Sheet settling the litigation is
Exhibit 4. A copy of the Letter of Agreement is included in the record as Exhibit 5.
10. Effective January 1, 1990 a separate civilian unit was created for purposes of
bargaining in the Sheriff's Department, represented by General Teamsters Union, Local No.
through December 31, 1994.
11. Since January 1, 1995, the civilian unit has been represented by the
Division. The WPPA/LEER Division submitted a Final Offer in Case 187 No. 53583
INT/ARB-7853 for a successor agreement to the calendar year 1995 contract for the civilian
unit, which was
forwarded by WERC Investigator Richard B. McLaughlin on August 20, 1996 to the County,
proposing to amend the WPPA contract to provide for assigning all overtime in the jail
bargaining unit and classification where the vacancy occurs and granting all employees the
opportunity for shift selection and days-off rotation based solely on the date of hire of all
who work in the jail. A copy of the WPPA/LEER Division Final Offer is attached and
by reference as Exhibit 6, and a copy of the WPPA/LEER Division Revised Final Offer sent
cover of a May 7, 1997 letter from WPPA General Counsel Richard Thal to Eau Claire
Personnel Director Marvin Niese, is attached and incorporated by reference as Exhibit 7.
12. Violations of the Collective Bargaining Agreements with Teamsters and
Division are subject to a grievance procedure established at ARTICLE 5 and an
procedure at ARTICLE 6. Attached and incorporated by reference as Exhibit 8
is the 1996-97 Non-Supervisory Unit Contract and as Exhibit 9 is the 1995 Civilian Unit
Adoption of the WPPA/LEER division's final offer or revised final offer would
Claire County to first offer overtime work to "employees in order of their seniority, in the
bargaining unit and classification where the vacancy occurs." Because Section 17.09 of the
Collective Bargaining Agreement between the County and Teamsters Local No. 662 requires
County to first offer all overtime opportunities in the jail to jailers in the Teamsters'
the language now in Section 17.09 and the overtime language in WPPA's final offer or
offer are incompatible.
14. Teamsters is interested in its capacity as a party to the current non-supervisory
unit Collective Bargaining Agreement and as collective bargaining representative for
non-supervisory deputy sheriffs.
15. WPPA/LEER Division is interested in its capacity as a party to the predecessor
Collective Bargaining Agreement and as collective bargaining representative for civilian
of the Sheriff's Department.
16. This Petition is brought pursuant to Section 111.70(4)(b), Wis. Stats., by the
County in its capacity as a party to the Collective Bargaining Agreements between Eau Claire
County and Teamsters and Eau Claire County and WPPA/LEER Division for purposes of
a declaration of rights regarding the Petitioner's responsibility to negotiate the WPPA/LEER
Division seniority proposal in light of the existing provision in the General Teamsters Union,
No. 662 non-supervisory contract.
17. The WERC shall take administrative notice of the Declaratory Ruling file "Eau
County (Sheriff Dept.) Case 190 No. 54400 DRM-581".
18. At the time the civilian correctional officer positions were first created, there
protective services jailers. At the present time there are five protective services jailer and 19
correctional officer positions authorized.
19. The WPPA takes the position that under its revised final offer jailers in the
bargaining unit would continue to receive overtime opportunities generated by jailers'
correctional officers in the WPPA unit would receive overtime opportunities generated by
correctional officers' absences.
20. Attached as Exhibit 10 is the current seniority list for the non-supervisory
21. Attached as Exhibit 11 is the current civilian unit seniority list.
22. Attached as Exhibit 12 is the overtime worked in the jail for 1995 and 1996.
23. On May 6, 1997 the Eau Claire County Board of Supervisors approved the
the Huber Center in a third floor two-tier addition over the Human Services wing of the
24. Eau Claire County Sheriff's Department Captain Greg Lieberg, if called to
state that as a result of the Huber Center addition he projects a staffing increase of 8.4 FTE
correctional officer positions. Teamsters Local No. 662 objects to this testimony on the
it is speculative.
Based on the above and foregoing Findings of Fact, the Commission makes and
CONCLUSION OF LAW
The overtime allocation proposal submitted by the Wisconsin Professional Police
Association is a mandatory subject of bargaining within the meaning of Sec. 111.70(1)(a),
Based upon the above and foregoing Finding of Facts and Conclusion of Law, the
Commission makes and issues the following
Eau Claire County has a duty to bargain with the Wisconsin Professional Police
within the meaning of Secs. 111.70(1)(a) and (3)(a)4, Stats. over the disputed overtime
proposal upon the expiration of any currently existing contract between Teamsters and Eau
County which contains the provision set forth in Finding of Fact 8.
Given under our hands and seal at the City of Madison, Wisconsin this 10th day of
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner
EAU CLAIRE COUNTY
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSION OF LAW AND DECLARATORY
POSITIONS OF THE PARTIES
The County seeks a declaration of the extent of its obligation to bargain over the
overtime proposal. The County contends that the proposal seeks rights to overtime currently
possessed by the members of the Teamsters' unit. If it is obligated to bargain over this
County is concerned that it will be placed in a position of having two units claiming the same
The County concludes its brief by stating:
The County is not taking a formal position supporting
either the WPPA or Teamster proposal.
The County is willing to continue to work with the existing Teamster language or the
WPPA language. However, the County cannot work with both.
Teamsters argue the WPPA proposal is a non-mandatory subject of bargaining
proposal seeks to acquire the work of the Teamsters' sworn deputies bargaining unit.
assert the Commission has consistently found such work acquisition proposals (as
work protection proposals) are not mandatory subjects of bargaining.
Teamsters contend the parties' dispute must be viewed in the historical context in
all jail work was once performed by Teamsters sworn deputy unit members; and (2)
to such work was bargained away only on the condition that deputies received preference
civilian jailers as to shift selection and overtime. In this context, Teamsters argue the
should reject WPPA's contention that the WPPA proposal is a mandatory subject of
because it only seeks overtime created by absences of WPPA civilian jailers.
Teamsters assert its unit
has existing preference rights to all jail overtime and that the WPPA proposal
thus seeks Teamster
Teamsters contend the Commission will be enhancing stability in collective
relationships by protecting the existing allocation of shared jail work. Failure of the
acknowledge the existing allocation will have the detrimental effect of discouraging
efforts to reach reasonable agreements on performance of unit work by non-unit employes
unions will rightly fear that any such agreement will ultimately prevent the union from
of its work.
Teamsters urge the Commission to reject WPPA's suggestion of a tripartite
procedure for resolution of this dispute. Teamsters contend there is no statutory
such a process and that, in any event, there is no intra-union jurisdictional dispute to be
there. Teamsters contend it is clear that it possesses the work in question. Teamsters further
that to the extent the WPPA proposal seeks a result which would conflict with the
the existing contract between the Teamsters and the County, the proposal is a prohibited
WPPA argues that although its proposal is a mandatory subject of bargaining, the
should nonetheless fashion a trilateral dispute resolution procedure and require the parties to
participate therein to resolve this jurisdictional dispute. In the alternative, WPPA argues
Teamsters and WPPA run the risk of having the Commission find the issue of
overtime distribution to be a permissive subject of bargaining, in which case the
County could simply
act as it sees fit upon expiration of the existing County/Teamster overtime contract language.
WPPA contends that it is incorrect for Teamsters to argue that overtime is Teamsters
work. WPPA argues that members of its unit regularly perform the work in dispute on both
regularly scheduled and overtime basis. Thus, WPPA argues this is work which is shared
the two units. Particularly as to overtime generated by the absence of a WPPA unit member,
contends that Teamsters unit employes ought not have a perpetual right to preference for
overtime opportunities. WPPA further notes that the existing Teamster contract language
Teamster unit employes overtime preference vis-a-vis WPPA unit employes with much
WPPA denies that its proposal is a prohibited subject of bargaining. It contends that
proposal is designed to first take effect upon the expiration of the existing Teamsters/WPPA
and thus cannot interfere with any existing contract rights. In the alternative, WPPA alleges
alteration of the conditions of employment of another unit constitutes a valid basis for finding
proposal to be prohibited, then the Teamster/County overtime contract language is also a
subject of bargaining because it has altered WPPA unit members' conditions of employment
language came into existence.
All parties correctly agree that proposals related to the allocation of overtime are
mandatory subjects of bargaining primarily related to wages and hours. Here, the dispute is
employer's duty to bargain regarding overtime allocation with one union (WPPA) where the
has an existing overtime allocation agreement (or status quo maintenance obligation during a
hiatus) with another union (Teamsters).
We have held that an employer has a "critically important policy interest" in being
avoid an obligation to bargain with two different units over the same work. Waukesha
Technical College, Dec. No. 28952 (WERC, 6/96); Milwaukee Board of School Directors,
Dec. No. 20399-A (WERC,9/83). Thus, as a general manner, we think it clear that the
cannot be compelled to bargain with both WPPA and Teamsters regarding the allocation of
We have further held that proposals which seek to protect unit work are mandatory
of bargaining, Waukesha County Technical College, supra; City of River Falls, Dec. No.
28384 (WERC, 5/95), while proposals which seek to acquire non-unit work are not.
County Technical College, supra. We proceed to determine whether the overtime is
Teamster unit work (in which case the WPPA proposal is a permissive subject of bargaining
it is seeking to acquire non-unit work) or whether the overtime has become unit work for
Teamsters and WPPA (in which case the WPPA proposal would be a mandatory subject of
to extent it is limited to protecting only WPPA work).
Teamsters correctly point out that all jailer work was once the work of the Teamsters
unit. However, since 1990, pursuant to an agreement between Teamsters and the County,
employes (i.e., civilian jailers in a separate unit once represented by Teamsters and now
by WPPA) have performed jailer work on both a regular and overtime basis. At present,
members perform a majority of the regular shift jailer work and roughly 40 percent of the
Teamsters forcefully argue that the sharing of overtime occurs only
bargained contract language which allows the work it once exclusively possessed to be
then only if no Teamster unit employes are interested in performing same. In
such circumstances, it
can well be argued that the work in question continues to be Teamsters work and that
ought not lose the right to bargain over protecting and allocating that work simply because
struck a bargain with the County which gave the County some flexibility. On the other hand,
reasonably be argued that Teamsters have retained any exclusive claim or right of first
refusal as to
regularly scheduled jailer work and it can be viewed as somewhat incongruous to allow a
retain exclusive bargaining rights for overtime work where it lacks these rights for the
While it presents a close question, we are satisfied that under the unique facts of this
current reality as to the allocation of jailer work warrants a conclusion that overtime jailer
become unit work for both Teamsters and WPPA. Thus, we are further satisfied that
WPPA are each entitled to bargain with the County over the allocation of that portion of the
which is each union's unit work.
WPPA's proposal identifies its "unit work" as overtime generated by vacancies within
classifications which it represents (Correctional Officers, Cooks and Nurses). We find this
to be an
appropriate way to identify unit work (i.e., was the overtime generated by the absence of a
non-sworn employe?) and thus find the WPPA proposal to be a mandatory subject of
Remaining for resolution is the question of whether the WPPA can pursue the right to
the overtime its unit generates in the face of an existing Teamster contract which gives
members the first right to all overtime. In this regard, given the existing contract and the
good faith doubt as to which unit had the right to bargain over the overtime, we conclude
cannot compel the County to bargain with it over the WPPA overtime proposal until the
of any currently existing Teamster contract with the County. Upon the expiration of any
agreement, the County is obligated to so bargain with WPPA. Because the Teamster
language is a permissive subject of bargaining to the extent it covers WPPA unit work, the
is not obligated to bargain with Teamsters over continuation of the existing Teamster contract
overtime language and has no status quo obligations which will conflict with any bargain the
may strike with WPPA over WPPA unit overtime.
Dated at Madison, Wisconsin, this 10th day of February, 1998.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
James R. Meier, Chairperson
Henry Hempe, Commissioner
Paul A. Hahn, Commissioner