BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
VERNON COUNTY HIGHWAY AND RECYCLING
UNION 1527, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO,
appearing on behalf of the Union.
Klos, Flynn & Papenfuss - Chartered, Attorneys at Law, by Mr.
Jerome Klos, appearing on
behalf of the County.
Vernon County Highway and Recycling Employees Local Union 1527, AFSCME,
AFL-CIO, hereinafter referred to as the Union, and Vernon County, hereinafter referred to
County, are parties to a collective bargaining agreement which provides for the final and
arbitration of disputes arising thereunder. The Union made a request, with the concurrence
County, that the Wisconsin Employment Relations Commission designate a member of its
to act as an arbitrator to hear and decide a grievance over the meaning and application of the
of the agreement. The undersigned was so designated. Hearing was held in Viroqua,
on June 4, 1997. The hearing was not transcribed. The County filed a post-hearing
Union did not file a brief and the record was closed on October 7, 1997.
The basic facts underlying the grievance are not in dispute. Recycling employes are
time and one-half (1 1/2) their regular hourly rate for hours worked before
6:00 a.m. and after
6:00 p.m. These hours are not included by the County in the basic forty hours
worked per week
after which all hours worked are at time and one-half (1 1/2) the regular hourly rate.
grieved the matter which was denied and appealed to the instant arbitration.
The parties stipulated to the following:
Did the County violate the collective bargaining agreement by
the manner in which it
calculated overtime compensation for the recycling employes?
If so, what is the appropriate remedy?
PERTINENT CONTRACTUAL PROVISIONS:
Hours of Work, Wages, Overtime Pay
4.01 The standard work day shall be 7:00 a.m. to
3:30 p.m., with a one-half (1/2) hour
off (non-paid) for noon lunch, except for Recycling employees. (See 4.08)
4.02 For Highway employees, the standard work week shall
be five (5) days, Monday
through Friday, both days inclusive. For Recycling employees, the standard work
week will be forty (40) hours.
. . .
4.08 For Highway Department employees:
All hours worked outside of the standard
work day and/or the standard work week shall
be paid at one and one-half (1 1/2) times the regular hourly rate of pay. When
necessary, employees shall work reasonable amounts of overtime and shall not be released
from duty unless a circumstance exists whereby the employee's absence is necessary and
approval is received from the Commissioner or foreman.
For Recycling Department employees:
All hours worked in excess of forty (40)
hours per week and before 6:00 a.m. or after
6:00 p.m. shall be paid at one and one-half (1 1/2) times the regular hourly pay.
. . .
The County contends that in negotiations the Union wanted recycling employes to
same regular work week as highway employes,
8:00 a.m. - 4:30 p.m., and to be paid time and
a half for all hours outside this work schedule. The County did not agree to this because
employes worked a non-regular schedule which is determined by the flow of material from
arrivals, so it offered a forty hour week with overtime for hours worked before
6:00 a.m. and
after 6:00 p.m. It points to the testimony at the hearing that a highway employe who
hours on Monday and eight hours the rest of the week is paid for one hour of overtime and
for one hour overtime on Monday and an additional hour for working forty-one hours in a
It argues that the same contract interpretation should apply to the recycling employe who
ten hours one day, two after 6:00 p.m. and eight hours the other four days and the
get two hours of overtime but no additional overtime for working forty-two in the week as
additional two hours have already been paid as overtime. It asserts that the consistent past
in the Highway Department is the best example of contract interpretation.
The County notes that two Union witnesses' testimony provided conflicting
of the contract, whereas the County provided a series of exhibits on overtime that illustrated
County's interpretation is consistent with governmental rules. It concludes that the grievance
should be denied.
Section 4.08 provides that for Recycling Department employes, all hours
worked in excess
of forty hours per week and before 6:00 a.m. or after 6:00 p.m. shall be paid at
one and one-half
times the regular hourly rate. The issue presented here is whether the hours worked before
6:00 a.m. and after 6:00 p.m. which are paid at time and one-half count
towards the basic forty
hours per week. Nothing in Section 4.08 specifically states that they are nor does it
state that they
are not. In short, the contract is silent.
The negotiating history does not shed any light on the matter as there were no
that specifically addressed the issue of the hours worked before 6:00 a.m. or after
6:00 p.m. as
being part of the basic forty hours worked to trigger overtime for all hours worked
As to past practice, the language in Section 4.08 relating to Recycling
employes is new because these employes were accreted to the Highway unit and this is the
time the language was included. However, it is undisputed that the Highway Department
employes who are paid over eight hours in a day and/or forty in a week do not count the
in excess of eight in a day as part of the basic forty hours. The evidence failed to establish
the parties agreed to a different calculation for the Recycling Department employes.
contrary to the Union's assertion, the evidence indicated that if a Recycling Department
worked eight hours each day on Monday, Tuesday, Wednesday and Thursday and nine hours
Friday with one hour worked after 6:00 p.m., the employe would
get only one hour of pay at time and one-half. The employe would not be paid time
twice for the same hour worked. The employe worked forty-one hours in the week and one
after 6:00 p.m. but is not entitled to both the weekly premium and the after
6:00 p.m. premium.
The Union has argued, however, that if an employe works nine hours on Monday,
being after 6:00 p.m., and then eight hours on Tuesday, Wednesday, Thursday and
employe is entitled to two hours of overtime, one hour on Monday and one hour on Friday,
applying both premiums. This is simply not logical. Two employes work forty-one hours in
week, one of which is after 6:00 p.m., yet one gets two hours of overtime and the
other gets one
hour of overtime. The Union offered no explanation for such an unusual result. It must be
concluded that the parties never agreed to or intended such a difference in calculating
Therefore, the undersigned finds that the evidence failed to establish that hours worked
6:00 a.m. or after 6:00 p.m. are counted as hours worked to make up the forty
hours per week
after which overtime must be paid. In other words, overtime hours paid before
6:00 a.m. or after
6:00 p.m. are excluded from the forty hours required to be worked for weekly
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
The County did not violate the collective bargaining agreement by the manner in
it calculated overtime compensation for the Recycling Department employes and the
denied in all respects.
Dated at Madison, Wisconsin, this 17th day of October, 1997.
Lionel L. Crowley /s/
Lionel L. Crowley, Arbitrator