BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF SUPERIOR
SUPERIOR CITY EMPLOYEES UNION
LOCAL NO. 244, AFSCME, AFL-CIO
Mr. James E. Mattson, Staff Representative, Wisconsin Council 40, AFSCME, AFL-CIO,
1701 East Seventh Street, Superior, Wisconsin 54880, on behalf of the Union.
Ms. Mary Lou Andersen, Human Resources Director, City of Superior, 1407 Hammond
Avenue, Room 200, Superior, Wisconsin 54880, on behalf of the City.
On September 25, 1996, Superior City Employees Union Local No. 244, AFSCME,
AFL-CIO filed a request with the Wisconsin Employment Relations Commission requesting
Commission to appoint a Commissioner or a member of its staff to serve as the sole
arbitrator to hear
and decide two grievances pending between the parties. The matter was subsequently
the undersigned who conducted an evidentiary hearing on June 4, 1997, in Superior,
Briefs have been filed and exchanged.
The parties have agreed that the statement of the issue is:
Did the Employer violate the terms of the Collective
Agreement and Past Practice
by assigning part-time employees work and thereby depriving senior employees of the
to work overtime?
And, if so, the appropriate remedy is to
make the Grievants whole for any and all lost benefits
and wages due to this action.
WORK DAY AND WORK WEEK
It is hereby declared to be the policy of the City of Superior to
provide hourly rated employees
of the Public Works Department, Park and Recreation Department and Equipment Depot
hours of work each week for fifty-two (52) weeks each year and the City does hereby pledge
promise to do all that is within its power to carry out this policy.
17.01 For all hourly paid employees of
the Public Works Department, Equipment Depot and
Park and Recreation Department, forty (40) hours shall constitute a normal work week
five (5) eight (8) hour days, Monday through Friday, from 7:00 A.M. to 11:00 A.M. and
A.M. to 3:30 P.M., with the following exceptions listed below:
A) Back Shop: 3:30 P.M. to 7:30 P.M.; 8:00 P.M.
to 12:00 Midnight; 11:30 P.M. to 3:30 A.M.;
4:00 A.M. to 8:00 A.M.
B) Street Department: 11:30 P.M. to 3:30 A.M. and
4:00 A.M. to 8:00 A.M., November 15
through April 15. This shift shall be limited to no more than (5) employees.
Park and Recreation:
Ball Field: Seasonal and temporary
maintenance crew shall be excluded from normal workweek
Outdoor Municipal Rinks: No shift will end later than 10:30
F) Summer hours may be implemented upon
mutual agreement between the City and the Union.
G) Alternative Work Schedules: The Department
Head and the Union may mutually agree to
a pattern of work that deviates from the normal scheduling and overtime practices outlined in
Agreement. The Employer shall retain documentation of the agreement. Either the
Employer or the
employee may revoke such election by giving written notice to the other party at least five
days prior to the effective dates of revocation.
Employees shall have the opportunity to review an alternative
schedule or schedules, prior to
volunteering for flexible work hours. Alternative work schedules may include shifts that are
eight (8) hours or more than eight (8) hours per day.
It is hereby declared to be the policy of the parties and fully
understood and agreed that in the
interest of the taxpayer, who must be considered a party to this Agreement, overtime shall be
to an absolute minimum.
18.01 For all work performed outside the
regularly scheduled work day and work week, as
defined under the Work Day and Work Week Article, shall be paid for at the rate of one and
(1-1/2) times the regular rate of pay.
18.04 All overtime work must be
approved by the head of the department and subject to
approval by the Mayor and respective committees of the City Council.
18.05 Should it be necessary to require
overtime that working day, employees on duty when
the decision to work said overtime is made shall be entitled to work said overtime regardless
seniority. In the event that overtime is to be scheduled, employees will be called to work
overtime work according to seniority rights, provided such employees are qualified to
work scheduled. Senior employees who are not consulted or given priority on such
overtime jobs and therefore do not work such jobs, may file grievance to receive pay for the
of hours worked by a junior employee. Said grievance shall be filed before the end of the
working day. An employee who does not answer a telephone call or who answers by a
answering machine may be considered unavailable for overtime. The other provisions of this
notwithstanding, any employee who has worked sixteen (16) continuous hours shall not work
receive pay for the next eight (8) consecutive hours.
BACKGROUND AND FACTS
The City of Superior (City) and the Superior City Employees Union Local
AFSCME, AFL-CIO (Union) have been signatories to a series of collective bargaining
the relevant terms of which have been set out above. This dispute involves the interpretation
agreement relative to scheduling work and overtime.
The City employs seasonal workers in its Public Works Department. Some are
the Sign Shop Division and others are assigned to the Parks and Recreation Division. The
sponsors two summer events referred to as a "K-5" race, which in 1996 was held on June
"Hoe Down Days," which in 1996 started on July 12th. On or about June 13th, the
supervisor directed that two of the four temporary Sign Shop employees work from 1:00
p.m. to 9:00
p.m. on the 14th. The other two temporary employees worked the regular hours of 7:00
a.m. to 3:00
p.m. The two regular Sign Shop employees worked from 7:00 a.m. to 9:00 p.m. and
hours straight time pay and six hours of pay at overtime rates.
On June 18, 1996, the Union filed a grievance alleging that "part time workers
p.m. to 9:00 p.m. to prevent senior men from working overtime," in violation of
Article 18.05 of the
collective bargaining agreement. The grievance was denied.
Later that summer, the management of the Public Works Department directed a
employee in the Parks and Recreation Division to work from 1:00 p.m. to 9:00 p.m. on July
which was also the beginning of Hoe Down Days. On July 16th, James Barthen filed a
stating that "part time workers started approximately 11:00 a.m. - quit at 9:00 p.m.,
men from working overtime" in violation of Article 18.05 of the collective bargaining
This grievance was denied in the same action as the grievance dated June 16, 1996.
POSITIONS OF THE PARTIES
The Union's Position
The Union takes the position that in both instances, the Employer violated not only
language of the contract, but long-standing past practice when it had the temporary
an eight hour shift near midday. The Union asserts that in each case, the need for work to
performed outside the regularly scheduled workday was known in advance by the Employer.
work, therefore, should have been scheduled overtime and should have been posted.
Further, the Union contends that before these occurrences, all such foreseeable
opportunities were posted.
The Employer's Position
The Employer argues that these cases don't even raise seniority rights because
working in one division do not have seniority rights for daily bumping rights over employees
another division," and "that the work accomplished during the regular work week is done by
employees in that division."
Relative to posting scheduled overtime, the Employer argues that the only overtime
ever been posted has been for hours on Saturdays, Sundays and holidays. The Employer
the Union exhibits in support of that proposition: Union Exhibit No. 1 is an overtime
posting for a
Saturday morning and Union Exhibit No. 2 is an overtime posting for July 4th. The
argues that another long-standing exception to a literal application of Article 18 is the
scheduling of the temporary seasonal employees; those in the Sign Shop Division have
started at 5:00 a.m. to sign streets and the seasonal employees in the Parks and
have routinely been shifted early or late depending on the weather.
In addition to the past practice arguments in support of its position, the Employer
several sections of the contract buttress its proposition that there is flexibility expected in
the seasonal workers.
One of the matters that the parties agree upon is that this grievance is governed by
practice. It is clear that the parties have developed practices which vary from the terms of
contract. As an example, no claim for overtime pay is made for the seasonal workers who
outside the regular schedule of hours as defined in Article 17 on these dates, possibly for the
that the Union agrees with the Employer position that seasonal workers have always worked
outside the normal schedule without overtime compensation. There seems to be no dispute
to this past practice.
Thus, no argument has been made here that in general the Employer should be
working the seasonal employees outside the regular work hours on days other than Saturdays,
Sundays and holidays without first offering those hours as posted overtime hours to the rest
unit. Rather, what is argued here is that the Employer should have posted the non regular
the day of the K-5 Race and on the Hoe Down Days because the need for those hours was
foreseeable and non normal hours for special events have always been posted.
While the contract is clear that hours worked outside of 7:00 a.m. to 3:30 p.m.
compensated at time and one-half (which is not in issue in this case), the contract is much
regarding the Employer's duty to post overtime hours. The contract provides only that "In
overtime is to be scheduled employees will be called to work such overtime work according
seniority rights, provided such employees are qualified to perform the work scheduled."
Relative to what constitutes overtime that "is to be scheduled," the Union asserts
testimony that prior to June 13, predictable hours of work for special events outside of the
schedule that could be predicted were always posted. The Employer asserts through
exhibits, including Union Exhibit No. 1 and Union Exhibit No. 2, that the only overtime
is that which has occurred on Saturdays, Sundays and holidays. While the proof is not
find that there is an established past practice that overtime has been posted only
Sundays and holidays such that it has become virtually a term of the contract, the evidence in
record would tend to support the Employer's position. On this issue, it would be the
burden and I would expect to see a more complete record including the outcome of any
for failure to post overtime during the week. However, a finding on this question is not
to resolve this dispute since there is no evidence that any overtime hours had previously been
for the K-5 Race or the Hoe Down Days, and other evidence of past practice resolves these
The next item on which there has been evidence of past practice relates to the
hours of the seasonal employees in the Parks and Recreation Division. The Employer
evidence by testimony and exhibit to show that the hours of the seasonal employees in the
Recreation Division have been routinely moved early or late in the day, typically necessitated
weather, without thereby incurring overtime liability either for payment to the seasonal
or necessitating posting. That practice has some support in Article 17,
Section 17.01(C). This stated
past practice was not contested by the Union. Furthermore, John Shepard testified that the
July 12th was scheduled later because of wet conditions and that the work
done that day by the
seasonal employee was the same work that the employees would normally perform. I find
has been a past practice which has become a term of the agreement relative to adjusting the
and end times of seasonal employees in the Parks and Recreation Division and that the
of July 12th was consistent with that practice.
The Employer asserts that there is a similarly established past practice relative to the
scheduling of hours of the seasonal employees in the Sign Shop Division. I am satisfied that
Employer has proven that there is an established past practice relative to starting those
early - i.e., before 7:00 a.m. - with end times moved up accordingly, typically
to paint traffic
markings, again without incurring overtime liability for hours worked outside of the normal
to 3:30 p.m. schedule and without that practice being contested by the Union.
Regarding starting Sign Shop seasonal workers later in the day, the testimony of
Koneczeno is noteworthy. She testified that on or about June 13, 1996, Chuck Miller and
Zovin came to her office and asked whether the Employer had the right to change the hours
temporary Sign Shop employees and that she responded by stating, "If we have the right to
earlier, we would have the right to start them later." She thought that they left in agreement.
Miller testified that he remembers meeting with Connie and believes he doubted the
authority. Kieth Zovin testified that he does not recall the meeting. The fact that Miller and
inquired, together with Ms. Koneczeno's response, persuades me that the hours of the
seasonal workers had not previously been shifted to later in the day. The question then
whether shifting the hours of the two seasonal employees later in the day on June
14th was a proper
continuation of an established past practice of flexibly scheduling seasonal employees, or
whether the non regular hours should have been posted as overtime. Another way to ask the
is whether the Employer should be prohibited from flexibly scheduling seasonal employees
weekdays that might be deemed "special events" without first offering the hours as overtime
to the unit at large?
Ultimately the grievance regarding the flexing of the hours of the Sign Shop seasonal
employees calls into question the reasonableness of the Employer's use of the flexing
Several observations are in order. First, the work done by the Sign Shop seasonal
not the exact same work they might normally perform, was work within the responsibilities
Sign Shop Division. More importantly, the full-time employees within the Division each
hours of work at overtime rates for working the same non normal hours as the seasonal
Two other Sign Shop seasonal employees worked only the normal hours. Therefore it cannot
that the only reason for flexing the two seasonal employees was to avoid the payment of
regular employees, because two seasonals were not flexed when the two regular employees
Therefore, I find that, while the Employer's flexing of the hours of two seasonal
June 14th was a small expansion of an established past practice of working
seasonal employees outside
of the normal schedule of hours without either paying them overtime or posting the hours,
that it was
not an unreasonable expansion of that practice.
On the basis of the above and foregoing, and the record as a whole, the undersigned
The Employer did not violate the contract and past practice by assigning part-time
work on June 14, 1996.
The Employer did not violate the contract and past practice by assigning a part-time
work on July 12, 1996.
The grievances are denied and dismissed.
Dated at Madison, Wisconsin this 18th day of February, 1998.
James R. Meier, Arbitrator