BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DUNN COUNTY JOINT COUNCIL OF
AFSCME, AFL-CIO, OF DUNN COUNTY,
COUNTY OF DUNN, WISCONSIN
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 318 Hampton
Court, Altoona, Wisconsin 54720, appearing on behalf of Dunn County Joint Council of
AFSCME, AFL-CIO, of Dunn County, Wisconsin, referred to below as the Union.
Mr. Scott L. Cox, Dunn County Corporation Counsel, Dunn
County Courthouse, 800 Wilson
Avenue, Menomonie, Wisconsin 54751, appearing on behalf of County of Dunn, Wisconsin,
referred to below as the County or as the Employer.
The Union and the County are parties to a collective bargaining agreement which
for the final and binding arbitration of certain disputes. The Union requested, and the
agreed, that the Wisconsin Employment Relations Commission should appoint an Arbitrator
resolve a dispute reflected in a grievance captioned by the parties as 97-1. The Commission
appointed Richard B. McLaughlin, a member of its staff. Hearing on the grievance was
conducted in Menomonie, Wisconsin, on February 25, 1998. No transcript was made of the
hearing. The parties filed written briefs by March 30, 1998.
The parties did not stipulate the issues for decision. I have determined the record
the following issues:
Did the County violate the collective bargaining agreement by
assigning the Night
Mechanic/Janitor to work as an Operator II between August 20 and September 5, 1997?
If so, what is the appropriate remedy?
. . .
THE COUNTY SHALL NOT:
. . .
f) The County shall not initiate, create, dominate, aid or
support any employee or
employee's group for any bargaining during the term of this contract.
. . .
ARTICLE 2 - GRIEVANCE
. . .
Section 2. Arbitration:
. . .
d) Limitations on Arbitrator. The arbitrator
have no right to amend, modify, nullify,
ignore, or add provisions to this agreement. His/her authority shall be limited to the extent
he/she may only consider and decide the particular issue or issues presented to him/her by
Employer and/or the Union. Disputes or differences regarding negotiable issues are
subject to arbitration.
. . .
ARTICLE 6 - HOURS
Section 1. Hours of Work. Hours and
schedules for the respective departments are included
in the appendix section of this agreement.
Section 2. Changes. Changes in
schedules may be made by mutual agreement of the parties
ARTICLE 7 - MISCELLANEOUS
Section 1. Management Rights. It is
understood and agreed that management possesses the
sole right to operate and govern this agency and that except as otherwise specifically
this agreement, the County retains all the rights and functions of management that it has by
The exercise or non-exercise of rights hereby retained by the County shall not be deemed a
of any such right or prevent the County from exercising such rights in any way in the future.
These rights include, but are not limited to, the following:
. . .
b) Direct the work forces;
. . .
d) Determine the methods, means, and number of personnel
needed to carry out the
. . .
i) Determine the size and composition of the work force;
j) To allocate work assignments;
. . .
m) To establish work assignments;
. . .
APPENDIX A -
. . .
Article A-14: Overtime/Comp Time
Section 1. Overtime.
. . .
b) Highway Department:
Overtime Pay Employees shall receive time and one-half
(1 1/2) pay for all time worked outside of their regular hours of work, their regular work
and on holidays.
. . .
APPENDIX E - HIGHWAY DEPARTMENT
Article E - 1: Work Schedule
Section 1. Hours of Work and Work
Week. The standard daily and weekly work schedule
for all employees shall be five (5), eight (8) hour days. The County shall make every
effort to operate its projects so as to maintain a regularly scheduled work week.
The hourly work schedule for all employees shall be:
a) General Hours
Friday 7:00 a.m. - 12:00 noon and 12:30 p.m. - 3:30 p.m.
. . .
d) Night Mechanic/Janitor
Sunday - Thursday 9:30 p.m. - 6:00
By signed mutual agreement, a ten (10) hour four (4) day work
schedule may be extended
with no changes in terms (except dates) for 1995, 1996, and/or 1997. . . .
Calvin Christianson is the President of Local 727 and serves as an Operator I for the
County's Highway Department. He filed Grievance 97-1 after he learned from various unit
members that Darryl Knospe, the Night Mechanic/Janitor, was working on the day shift as a
The labor agreement provisions set forth above note the normal work hours of the
Mechanic/Janitor. At all times relevant here, the Highway Department was working under
terms of an agreement authorized by Section 1 of Article E-1. That agreement is referred to
below as the Side Letter, and reads thus:
1997 10 HOUR WORK DAY
The regular work week will consist of four 10-hour days; Monday
The hours of work will be from 6:00 a.m. to 4:00 p.m. April 27
through August 2, 1997 and
6:30 a.m. to 4:30 p.m. August 3 through August 30, 1997, with one 15 minute break taken
9:00 a.m. and one 30 minute break taken at noon. That break schedule is for the shop crew
patch crews, the paving and sealcoating crews will rotate their breaks so the operation does
stop -- each individual will be responsible for fitting in his/her breaks when possible or at the
of the Foreman. There will be no overtime paid for the daily 45 minutes of break time as
are paid breaks.
. . .
The night janitor will work Sunday through Wednesday from 8:00
p.m. to 6:00 a.m. The
night mechanic will work from 6:00 p.m. Sunday to 4:00 a.m. Monday, then 2:00 p.m. to
a.m. Monday through Wednesday.
. . .
Since at least 1989, the parties have worked under similar side agreements setting forth
a ten hour
day for the summer months.
Christianson signed and filed the grievance on behalf of the unit. He testified that he
not aware of any individual bargaining between Knospe and Highway Department
The grievance covers work performed by Knospe as a screed operator between
and September 5 of 1997. Knospe has experience as a screed operator. The County's
machine is manned by three employes including, typically, two screed operators. The screed
operators perform the constant changes on a ten foot blade which makes the adjustments
to conform paving material to the pitch of the roadway. Knospe was removed from his night
position of Night Mechanic/Janitor and placed as a screed operator on the day shift by the
County's Highway Commissioner, M.O. Brenden.
Brenden discussed the County's paving needs with his Patrol Superintendent, Bob
They concluded that Knospe was the only experienced, reliable screed operator who was
to assist paving crews. Other potential operators were available, but Brenden and Falk felt
County was better able to do without the work of the Night Mechanic/Janitor than without
work performed by other employes with screed operator experience. They agreed that
should be moved to the day shift and work, on temporary assignment, as a screed operator.
While doing this work, Knospe was classified as an Operator II. At the time
here, the hourly pay rate for Operator II ranged from a start rate of $13.1963 to a 24 month
of $14.7563. The pay range for Night Mechanic/Janitor ran from $13.1363 to $14.6963.
performed as Night Mechanic/Janitor while Knospe performed as an Operator II. It is
that the County performed paving work later in the fall of 1997 without using Knospe. It is
undisputed that while he worked as an Operator II, Knospe was paid overtime consistent with
other members of the paving crew. This meant that his overtime was based on the normal
schedule of a day shift employe rather than on the normal work schedule of a Night
Mechanic/Janitor. It is also undisputed that unit employes other than Knospe could have
assigned to screed operation. Some of these employes had at least some experience in screed
operation. The County's unwillingness to use these employes turned on its adverse view of
employe's experience or its desire to keep them on other duties.
Knospe has attended safety training given during the day shift and has been paid
for doing so. He worked his normal shift prior to and after such training. The County has
straight time wages to night shift employes assigned to training given during day shift hours.
example, the County sent Bill Thibado to a one-week paving school in Illinois. He was paid
his straight time rate for this training. Christianson was aware that Thibado had also
one-day seminar on hydraulics and had received straight time pay. Christianson did not file
grievance because no one complained to him about the payment.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Position
The Union states the issues for decision thus:
Did the Employer violate the contract when it worked the Night
Janitor on days without the
payment of overtime? If so, what is the appropriate remedy?
Resolution of these issues does not, the Union contends, pose the interpretation of
Section 1 of Article E-1 requires the County to maintain "a regularly scheduled work
week." The provision also establishes that work week for the Night Mechanic/Janitor. If
County cannot maintain these schedules, the contract provides it with two options. The first,
established by Article A-14, is to "pay the employees overtime." The second, established
Article 6, is to "attempt to negotiate a different schedule." The County chose neither
provoking this grievance. Whether the change was acceptable to Knospe is, according to the
Union, irrelevant as a contractual matter. The agreement precludes individual bargaining.
Nor can the County's arguments be accepted. This is not an assignment of duties
under Article 7, Section 1. The County's management rights are subject to other agreement
provisions. The right to assign does not include "the unilateral right to change the
schedule." As noted above, a change of schedule must follow one of two contractually
Nor is it contractually significant if the County faced an emergency. That other
were available to perform the work establishes that the "crisis" the County faced was simply
own desire to avoid the payment of overtime.
Nor can the County persuasively establish a past practice. Article 2, Section 2(d),
the power of an arbitrator to find a binding practice. More significantly, the language at
unambiguous, thus making recourse to past practice inappropriate. Even if practice was
the County has failed to establish a mutually recognized practice in effect "over a long period
time." What evidence there is of a practice is, in any event, irrelevant. The evidence put
by the County concerns training, not equipment operation. That unit employes routinely
overtime when they work outside of their schedule undermines the County's position.
whatever practice exists underscores the Union's contention that changes in schedules must
The grievance should not, the Union argues, be viewed as "simple." It potentially
the County the authority to eviscerate "the bargained overtime provisions of the contract."
Union states its view of the appropriate remedy thus:
(O)rder the Employer to pay Night Janitor Darryl Knospe the
difference between the straight-time rate and the overtime rate for all hours of work
performed during the period of August 20
through September 5, 1997. Any hours of work which were paid at the overtime rate during
period are exempt from the remedy.
The County's Position
The County states the issues for decision thus:
Did Dunn County violate Article A-14, Section 1(b) of the
Collective Bargaining Agreement?
If so, what is the appropriate remedy?
After a review of the evidence, the County contends that the issue on the merits must
in its favor.
Initially, the County argues that Article 7, Subsections 1(b) and (d), establish that it
"unambiguously has the right to determine the method, means and number of personnel to
out the County's mission and to direct the work forces." Beyond this, the County urges that
Subsections (i), (j) and (m) of that Section grant it "the right to determine the size and
of the work force, allocate work assignments and establish work assignments." Significantly,
"contract does not prohibit temporary assignments."
Knospe was appropriately assigned, on a temporary basis, to be a screed operator.
County contends that it "was short an experienced screed operator during the peak paving
had no other readily available employes to fill this need; and could afford to fill the need by
vacating a position "not of vital importance to the operations of the Highway Department at
time of the year." The assignment was of less than a three-week duration. It was, the
concludes, an appropriate temporary assignment.
Nor can it be argued that Knospe was not appropriately compensated. He received
Operator II rate for all straight time and overtime hours. His schedule as a Night
Mechanic/Janitor was not altered since it was vacant during his temporary assignment as an
Operator II. That snowplow operators receive overtime when called in outside of normal
hours has no relevance here, since Knospe was reassigned. The more appropriate analogy is
long-term training, where night shift employes receive straight time pay for long-term day
training sessions. Overtime for such employes is paid only when they, like a snowplow
called in off schedule, must work their regular shift in addition to the call-in.
The County concludes that it "must have some discretion in carrying on its
that accepting the Union's conclusion "would put the County, its taxpayers and the Highway
Commissioner in a straight jacket." It concludes that the grievance must be denied.
The issue stated above is an amalgam of the parties' conflicting views. The County
accurately notes that the issue ultimately turns on the overtime entitlement of Article A-14,
1(b). The Union accurately notes that the interpretive issue spreads into other areas of the
agreement. I have stated the issue more generally than the County's to highlight the
of other agreement provisions. Unlike the Union's, my statement of the issue highlights the
of the grievance. This reflects that the broad ramifications argued by both parties must not
the conclusion stated in this award beyond the precise facts supporting it.
As preface to addressing this issue, it is appropriate to stress what is not in issue.
evidence does not establish that the County bargained individually with Knospe. Rather,
and Falk reached a conclusion consistent with their own view of their management rights and
communicated this to Knospe by moving him from Night Mechanic/Janitor to day shift
II. This does not make resolution of the issue on the merits any easier, but does clarify what
not at issue.
The interpretive issue is the reconciliation of the County's rights under Article 7 and
limitations on those rights stated in Articles 6 and A-14. Appendix E and the Side Letter are
relevant to this issue as a function of Article 6.
Article 7 states rights broad enough to authorize Knospe's temporary assignment. By
terms, however, Article 7 is limited "as otherwise specifically provided in this agreement."
interpretive issue is whether the provisions of Articles 6 and A-14 create a financial
to the assignment posed here.
This issue has, as both parties note, potentially broad implications. The Union fears
schedules and overtime payment can be rendered meaningless. The County fears its ability
allocate resources cost effectively can be eviscerated.
The grievance cannot, however, be resolved on its broad implications. The language
underlying this dispute will not permit the sweeping conclusions advanced by the parties.
Brenden, for example, testified that a "temporary transfer" could be of virtually any
How this could occur without violating contract provisions on posting positions is not
Nor is the Union's position without difficulty. It cites Article A-14, Section 1 as
unequivocal support for its position that Knospe cannot be moved off the night shift without
overtime payment. That section grants overtime for work beyond the normal day and week.
it grants overtime for Knospe for day training or for a day shift Operator I for night shift
plowing is apparent. How it governs the grievance is not so readily apparent. If his night
schedule defines his entitlement to overtime for what are straight time hours for day shift
employes, how are hours beyond the normal work day and week for his day shift work
The terms of Article A-14 distinguish between straight time and overtime by setting a
for hours worked beyond a normal day and week. The inferences necessary to adapt it to
Knospe's screed operator work make it apparent that although Article A-14 may be a
consideration, it does not clearly and unambiguously govern this grievance.
The parties' conflicting views of the broad implications of the grievance do not afford
reliable means to address the issue. This is not an indictment of those arguments, but a
of the uncertain relationship between the rights of Article 7 and the limitations on those
Articles 6 and A-14. The grievance must, then, be examined on its facts. The goal of the
case-by-case analysis is to determine whether the County's exercise of its Section 7 rights
agreement provisions. Such an analysis is inevitably fact driven.
The grievance is troublesome in its implications and the Union's concern with those
implications is forcefully stated. However, the facts of this case afford stronger support for
County's interpretation of Article 7 than for the Union's interpretation of Articles 6 and
The Union's citation of Article A-14 is not determinative on the facts posed here. If
anything, that provision restates the parties' conflicting views. If the County possesses the
to assign which it asserts here, Knospe's "regular hours of work" and "regular work week"
those of a day shift Operator II. If the Union is correct that the County possesses no such
then his "regular hours of work" and "regular work week" were those of a Night
and overtime must be paid. This does not resolve, but restates, the interpretive issue.
The issue becomes, then, whether Article 6 coupled with Appendix E and the
limit the County's right to assign Knospe as a screed operator between late August and early
September of 1997. No such limitation is apparent on the facts posed here. Section 2 of
makes "mutual agreement" the vehicle to effect "(c)hanges in schedules." The County did
however, change the schedules of Appendix E or the Side Letter. Crucial to this
is that the County did not replace Knospe as Night Mechanic/Janitor. The issue posed, then,
not a schedule change, but a change in work assignment. Knospe was not a Night
Mechanic/Janitor between August 20 and September 5. Rather, he was an Operator II, with
contractually set schedule of an Operator II. This assignment was limited to specific paving
projects in late summer of 1997. Thus, it appears that the assignment was made for staffing
purposes traceable to specific paving projects rather than for the purpose of circumventing
overtime requirements of Article A-14.
Nor can Section 1 of Article 6 be read to establish a County violation of the
these facts. It states that the hours contained in the Appendices are "for the respective
departments." This reference is impersonal and not directed to an individual employe.
this, Section 1 incorporates the provisions of Section 1 of Appendix E, Article
E-1. None of these
provisions establish the personal guarantee the Union asserts. The second sentence of
Section 1 requires the County to "make every reasonable effort to operate its projects
so as to
maintain a regularly scheduled work week." There is no evidence that the County failed to
such an effort here. Schedules traceable to the projects between August 20 and
September 5 fell
within the limits of Appendix E and the Side Letter. In sum, none of these provisions
personal guarantee of hours to a specific employe. Rather, those provisions make a general
statement addressing departmental positions as a group.
The Appendix does, however, specify what the "hourly work schedule . . . shall be"
"all employees" including the Night Mechanic/Janitor. This language does appear to address
individual employes. It is undisputed that Knospe worked outside of the hours set for the
Mechanic/Janitor. This states the strongest contractual and factual support for the Union's
The difficulty posed is that Knospe did not work outside the hours set for employes
working as screed operators. Unless Knospe has been personally guaranteed the hours of a
Mechanic/Janitor, it is not apparent that the County violated Article E-1. Article 7 grants the
County the right to make work assignments. Knospe has the skills of a screed operator and
Night Mechanic/Janitor. There is no demonstrated contractual provision guaranteeing
hours of the Night Mechanic/Janitor without regard to the duties he actually performs. The
Union's contention that the language can be so construed has considerable force.
Doing so, however, ignores that the asserted personal guarantee of hours is never
as a guarantee of anything beyond a normal schedule to an employe performing the work of
Night Mechanic/Janitor. A personal guarantee of hours should rest on a more solid
footing than arbitral inference. There is, then, no proven contractual violation to the
exercise of its Article 7 rights on these facts.
It must be stressed that this conclusion must be limited to the facts posed here. That
County did without the work of a Night Mechanic/Janitor while Knospe worked as an
undercuts the force of many of the Union's arguments. That the assignment was limited in
and was carried out with minimal disruption to Knospe's schedule is of some significance.
evidence establishes he moved from one contractually set schedule to another. While the
is correct that such a move cannot come about from individual bargaining, it is of some
for the County's case that there has been no demonstrated personal disruption of Knospe's or
unit employes' personal lives due to the change. This makes it difficult to conclude the
of schedules sought in Article 6 and Appendix E has been violated. Beyond this, the record
not indicate the County avoided overtime. If the County did not avoid overtime payment, it
difficult to conclude its exercise of its Article 7 rights undercut Article A-14. What evidence
submitted indicated Knospe may have worked more overtime as an Operator II than he would
as the Night Mechanic/Janitor. This also makes it difficult to conclude the County's use of
Article 7 rights undercut Article A-14.
The Award entered below cannot, in my opinion, be read to affirm the Union's
that important agreement rights have been lost. The reconciliation of the conflicting demands
Articles 6, 7 and A-14 effected in the Award makes it necessary to assess the impact of
County actions on other agreement provisions. This means each exercise of Article 7 rights
be assessed on its facts. If, for example, the County had used Knospe on an irregular daily
hourly basis to move to day shift screed operation, arguable violations of Appendix E would
occurred. If Knospe were moved to the day shift routinely over a period of time to perform
screed operation, then it is arguable that violations of posting provisions and Appendix E
have occurred. If the County had rearranged the schedules of a number of employes to
them in a fashion to limit its overtime obligation, then an arguable violation of Article A-14
have occurred. Beyond the resolution of this grievance, the Award entered below points
the need to evaluate future grievances on their unique facts.
Thus, the language of the provisions posed here cannot reliably support either party's
broadest contractual claim. As a result, each County exercise of its Article 7 rights must be
assessed to determine if it infringes on the scope of Articles 6 or A-14. This leaves the
problematic, but accurately reflects a contractual gap. If that gap is to be broadly addressed,
bargaining table is more suitable than grievance arbitration. The Union's claim that
can afford a disincentive for inter-shift assignments would be more clearly addressed by a
contract provision stating so, or by the addition of a shift differential for such assignments.
potential results are not, under Article 2, Section 2(d), entrusted to an arbitrator.
The Union has persuasively argued that past practice can play no effective role in
this grievance. The relationship of the County's Article 7 rights to Articles 6 and A-14
in my opinion, be said to be clear and unambiguous. This ambiguity makes past practice
but cannot make the evidence posed here into a binding practice. The essence of the binding
of past practice evidence is the agreement manifested by the bargaining parties' conduct. In
case, no such agreement can be inferred. That Christianson did not grieve one of Thibado's
training sessions may prove no more than that no one complained. This proves something
than Union agreement that the compensation was appropriate. There is no evidence the
aware of the payment afforded for the paving seminar in Illinois. The Award can be
to the County's payment for training. That payment cannot, however, serve as a basis to
The County did not violate the collective bargaining agreement by assigning the Night
Mechanic/Janitor to work as an Operator II between August 20 and September 5, 1997.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 29th day of April, 1998.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator