BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN LAKE COUNTY
AFSCME LOCAL 514C
On July 16, 1997 Local 514-C, AFSCME, AFL-CIO filed a Request to Initiate
Arbitration with the Wisconsin Employment Relations Commission which requested the
to appoint either a Commissioner or a member of its staff to serve as the sole arbitrator to
issue a final
and binding award relative to a dispute between the parties. The undersigned was
appointed. A hearing was held on September 23, 1997. A transcript was made and briefs
filed and exchanged.
The Union framed the issue as follows:
Did the employer violate the contract when it paid out
accumulated overtime to the grievant
in cash rather than allow the grievant to take this accumulation off in the form of
If so what is the remedy?
The County framed the issue as follows:
If the contract does not speak to the contrary in terms of the
overtime pay, does the County
have the right to establish reasonable rules and policies specifically defining the use of
In its brief the County identified two issues:
Issue 1 Did Green Lake County follow the terms of the contract?
Issue II Did Green Lake County apply a past
practice to an ambiguous provision of the
I define the issue as:
Did the Employer violate Article 14 of the
collective bargaining agreement when it cashed out
Grievant's accumulated compensatory time because Grievant had not used it within 31 days
. . .
The Employer and Green Lake County retain and reserve the sole
right to manage its affairs in
accordance with all applicable laws, resolutions, ordinances and regulations. Included in this
responsibility, but not limited thereto, is the right to determine the number and classification
Employees, the services to be performed by them; the right to manage and direct the work
right to establish qualifications for hire and to test and judge such qualifications; the right to
promote and retain Employees; the right to transfer and assign Employees; the right to
suspend, discharge for cause or take other disciplinary action subject to the terms of this
AGREEMENT and the grievance procedure; the right to release Employees from duties
lack of work or lack of funds; the right to maintain because of lack of work or lack of funds;
to maintain efficiency of operations by determining the method, means and personnel by
operations are conducted, including the right to contract out provided that the exercise of this
shall not result in layoff of permanent Employees (Employees other than part-time, seasonal
probationary) and provided that in the case of the layoff of non-permanent Employees that
Employer shall have the burden of proving that the exercise of such right will result
economical operation of the department, and
to take whatever actions are reasonable and
necessary to carry out the duties and responsibilities of the Employer.
A. Employees shall be paid at the rate of time and one-half (1-1/2) their regular rate
for all hours worked in excess of their normal work schedule per week. Time and one-half
(1-1/2) will be paid for work on Saturday and Sunday. Employees who are requested and
report to work during their scheduled vacation shall be paid overtime in addition to their
vacation pay. Employees may take overtime in the form of pay or compensatory time off.
If an employee wants to receive overtime in cash, the employee must notify his supervisor
within thirty (30) days of earning the overtime of this desire for payment in cash; payment
be made at the end of the month following the request. In the event the employee wants to
take overtime as compensatory time off, the employee must work out the time with his
POSITIONS OF THE PARTIES
Position of the Employer
The Employer followed the contract in that the supervisor worked out the schedule so
the time would be taken off within 31 days or the employee would receive pay. This is
with a longstanding practice which was only lapsed for a period of two years. Ms. Lyons
returned to working out the scheduling the way it used to be and she has never denied any
time off if they use it within 31 days.
In determining what is meant by Article XIV, it has to be harmonized with
Article 2 -
Recognition in which the County reserves the right to make reasonable rules and policies.
Alternatively, if the contract is ambiguous then the past practice should give
parties' intent. The past practice is predominantly the same as the policy and if the
concludes that the contract lacks a reasonable time term relative to compensatory time usage
Arbitrator is inclined to fill the gap in the language, the Arbitrator should fill it with the
Position of the Union
The County's suggestion that the Union's interpretation of Article 14 could severely
the ability of the department to operate normally is an exaggeration. Since the
employees of the Human Service Department receive little overtime, there is little
likelihood that its
use could disrupt department activities.
The language of the contract is clear. Even the language of the policy is clear that it
application where it conflicts with specific provisions of collective bargaining agreements.
County's actions and arguments are simply an attempt to void the contract language while
its duty to bargain.
The County's arguments are illogical and a strained construct designed to avoid its
upon responsibilities. While the contract might be improved by the addition of a time term
of compensatory time, its absence does not mean that the County may unilaterally impose a
term abrogating the "work out" language.
The County seems to believe that its desire for a uniform policy relative to
use takes precedence over both the current contract providing for employee involvement and
to bargain. Further, simply because some employees in the past have been acquiescent in the
the County's unilateral change in working conditions, does not mean that a binding past
developed. Finally, the fact that the County met with Union leadership on this issue and
the employees' representative was going to develop a policy, does not mean that the
implement its policy where it conflicts with the contract and is unagreed to by the Union.
The contract language has been in effect for the entire period relevant to this dispute.
language of the Policies and Procedures Manual has also existed for the entire period
relevant to this
dispute. Prior to January 1997 the supervisor of the economic support unit of the County's
Services Department took a relatively informal approach to the accumulation and use of both
compensatory time and flex time. In January 1997 the management of the Human Services
Department concluded that it was important to get the economic compensatory time and flex
accumulation and usage on a more businesslike basis. Therefore a form was developed for
approval of working overtime and for compensatory time usage in addition to other efforts.
Human Services Department also adopted the policy of cashing out compensatory time that
been used within 30 days of being earned. (The cash out apparently did not occur
only when the employee requested to use it after the 30 day period). It is this cash out
gives rise to this grievance.
As noted earlier, the Union's position is that this is a clear violation of the last
Article 14A. The Employer's position is that since the contract is silent relative to the period
over which compensatory time may be accumulated, the Employer is free to adopt a
According to the County, this is what the supervisor has done, adopted the
County's non union policy in the absence of an employee's failure to work out use of
compensatory time as leave within 31 days.
The task of the Arbitrator is to determine the intent of the parties as disclosed by the
language. What does the last sentence of Article 14 - Overtime mean? "In the event the
wants to take overtime as compensatory time off, the employees must work out the time with
supervisor." It is clear that before the employee can take the time off, the supervisor must
the request. It does not require the supervisor to have any express standards at all, only to
reasonably. The question is whether the parties intended to limit the accumulation of
time. It is obvious that since the contract provides that an employee who wants overtime as
must notify the supervisor within 30 days, that the parties could not have intended to
cash out an employee after 30 days because then the contract language would be useless. In
words the parties must have intended that compensatory time could be carried beyond 30
days or they
would not have put in the requirement that an employee wanting cash must request it within
Therefore, it is clear that when the parties bargained the language the parties thought about
subject; time term for compensatory time use, and decided not to limit accumulation, and
instead, on the good faith and good judgment of the employee and supervisor.
Does the fact that the sentence does not have a time term make it unclear? No, it is
the parties decided in the contract not to attempt further definition but rather to leave it up to
employees and supervisor. The fact that the supervisor would rather not have the
authority/responsibility under the contract does not mean that she can avoid it by adopting a
which cashes out an employee'' accrued compensatory time every 31 days.
The Employer is now concerned that unlimited accumulation of compensatory time is
deleterious to the Employer's ability to manage. There are several ways of addressing that
The best is to negotiate reasonable terms with the Union. That process started, but then
rule making rather than negotiation. The Employer also has the right to adopt reasonable
policies, but may not do so in a way that abrogates clearly expressed rights or benefits.
Employer, by contract, agreed that the supervisor would "work out" compensatory time use
each employee on a request-by-request basis. It anticipates that the Employer will consider
and staffing and approve requests to use compensatory time if service will not suffer but does
anticipate the unilateral imposition of a rule. The rule abrogates the right to accumulate
A collective bargaining agreement trumps a personnel policy. The personnel policy
recognizes that. Even if the language were unclear, the intent of the parties would be
through bargaining history and past practice. However, if the language were unclear, past
would not favor the County's position because for two years prior to January 1997,
time usage was worked out on a case-by-case basis without the 31-day wipeout. Where a
subject is addressed in a detailed manner in a contract, the Employer may not unilaterally
missing term since in such circumstances, the duty to bargain supersedes residual
I find that the Employer violated Article 14 of the contract when Supervisor Lyons
out Grievant's accumulated compensatory time without Grievant's approval.
It is ordered that the Employer cease and desist from enforcing its 31-day cash out of
compensatory time policy as it relates to members of Local 514C, AFSCME, AFL-CIO.
Dated at the City of Madison, Wisconsin this 30th day of
James R. Meier, Arbitrator