BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MONROE COUNTY HIGHWAY
LOCAL UNION NO. 2470, AFSCME
(Grievance of Keith Waege)
The above-captioned parties, herein AUnion@ and ACounty@, are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Sparta, Wisconsin, on June 25, 1998. The hearing was not transcribed and both parties
that were received by July 27, 1998. Based upon the entire record and the arguments of the
I issue the following Award.
Since the parties were unable to jointly agree to the issue, I have framed it as
Did the County violate Article 6 of the contract when it failed to
call in grievant Keith Waege to
perform certain overtime work in Section 16 and, if so, what is the appropriate remedy?
Waege, a Patrolman, is assigned to Section 16. The November 20, 1990, job posting
Waege=s job, (Joint Exhibit 4), stated in pertinent part:
Notice to Monroe County Highway Employees.
The Monroe County Highway Department
will need a Section Leader for County Section 16.
Truck for this Section will be stored at the Tomah shop.
Section 16 covers: CTH
AE@ from Hwy. 12 to CTH AN@. CTH AE@ from Hwy. 21 to
Hwy. 12. CTH AM@ from Hwy. 21 to Hwy. 16. CTH AM@ from Hwy. 21 to Hwy. 12.
CTH AC@ from Hwy. 16 to CTH AM@. CTH AN@ from Hwy. 12 & 16 to Hwy.
AT@ from Hwy. 16 to CTH AA@. CTH APP@ from Hwy. 12 & 16 to Hwy. 21.
. . .
The job description for said position (Joint Exhibit 5), states in pertinent part:
Basic Functions and Responsibilities: Under general
supervision of the Patrol Superintendent,
the Section Leader oversees one of 18 sections of highways assuring safe, smooth traffic flow
seasons and weather.
Waege=s normal hours run from 7:00 a.m. B 3:30 p.m. For storms, he works from
4:00 a.m. B 6:00
p.m. Waege testified that other employes from other sections who are already on duty
work in his section and that he sometimes works in their sections if he is on duty.
Waege and employes Stephen Larson and Jon Pauli all testified that there is a past
of calling in employes to work on their sections for snow and other winter maintenance work
if other available employes were already on duty.
Highway Commissioner Norbert W. Smith testified that employes in the last several
have not been called in and that any such work was assigned to employes already on duty;
that it is
not economical to call in an off-duty employe such as Waege in such circumstances to only
a few minutes work; and that the County regularly cleans the road by the Veteran=s
hospital in Sparta as a Acourtesy@. He also said that Waege was unable to perform the
work in issue
because his truck is not set up to spread salt.
The County on several occasions in 1997-1998 failed to call in Waege to perform
work on parts of Section 14 when other employes like Larson were already on duty and were
position to do it themselves. Larson testified that he was told to work on Waege=s section
you get time.@
POSITIONS OF THE PARTIES
The Union argues that it Ais relying on >past practice= relative to this issue@
practice involves a mandatory subject of bargaining because it involves overtime payment. It
contends that Athe section leader is responsible for all of the maintenance on the section@,
even if it
occurs outside his regular workday, and that, he thus must Abe called first to perform those
pursuant to a A20-year past practice that was always followed before Athis Commissioner
. .@ As a remedy, the Union requests that Waege be made whole and that the County
ordered to comply with the Apast practice@.
The County, by contrast, asserts that the grievance must be denied because it has the
management right under Article 3 of the contract to assign overtime as it sees fit and because
is nothing in Article 6, the contractual overtime provision, that requires the County to call in
employes to perform overtime work that can more easier be performed by other employes
The County is correct, the Union is wrong.
Thus, the County has broad discretion to manage its operations under Article 3 of the
contract, entitled AManagement Rights@, which states:
The County possesses the sole right to operate county government
and all management rights
repose in it, subject only to the provisions of this Agreement and applicable law. These
but are not limited to, the following:
A. To direct all operations of the County;
B. To establish reasonable work rules and schedules of
C. To hire, train, promote, transfer, schedule and assign
employees to positions within
D. To suspend, discharge and take other disciplinary action
against employees for just
E. To relieve employees from their duties because of lack of
work or any other legitimate
F. To maintain efficiency of county government operations;
G. To take whatever action is necessary to comply with
and federal law;
H. To introduce new or improved
methods or facilities;
I. To change existing methods or
J. To determine the kind and amount
of service to be performed as pertains to county
government operations; and the number and kinds of classifications to perform such services.
of the creation of a new position or classification, or a change in the content of an existing
or classification, the parties shall negotiate wages for the position or classification.
K. To contract out for goods and
services, provided that such contracting out for goods
and services shall not result in layoffs of present employees.
L. To determine the methods, means and personnel by
which county operations are to
be conducted. (Emphasis added).
These underlined phrases B particularly the last one that enables the County to
the methods, means and personnel by which County operations are to be conducted@ B
the County the right to assign work to whomever it wants, provided only that said
not violate any other parts of the contract.
The only possible such contractual limitation is Article 6, entitled AOvertime@,
Section 1: Overtime will not be expected except in
emergencies, and any other overtime will not
be approved for pay except when approved by the Highway Commissioner; the Highway
Commissioner has the right to set overtime schedules in the manner most advantageous to the
and consistent with the requirements of municipal employment and the public interest.
. . .
Section 3: All overtime shall be distributed as evenly as
possible among all employees, but the
final decision shall be up to the management subject to grievance procedure.
There is nothing in any of this language, obviously, that requires the County to assign
to off-duty employes when said work also can be performed by bargaining unit employes
already on duty and who therefore can be directed by the County under Article 3 to perform
Absent any contractual limitation on the County=s right to thus assign work as it
Union=s claim thus rests entirely on its argument that a binding past practice has developed
Any such practice, however, must be considered alongside the very specific language
Article 3 that expressly gives the County the right to Adetermine the methods, means and
by which County operations are to be conducted. . .@ That language controls because the
mere non-use of an express management right does not render it useless.
Arbitrator Harry Shulman explained this point in Ford Motor Corp., 19 LA 237,
(1952), wherein he ruled:
AA practice thus based on mutual agreement may be subject to
change only by mutual agreement.
Its binding quality is due, however, not to the fact that it is past practice but rather to the
in which it is based.
But there are other practices which are not
the result of joint determination at all. They may be
mere happenstance, that is, methods that developed without design or deliberation. Or they
choices by Management in the exercise of managerial discretion as to the convenient methods
time. In such cases there is no thought of obligation or commitment to the future. Such
are merely present ways, not prescribed ways, of doing things. The relevant item of
not the nature of the particular method but the managerial freedom with respect to it. Being
product of managerial determination in its permitted discretion such practices are, in the
contractual provisions to the contrary, subject to change in the same discretion.
. . .But there is no requirement of mutual agreement as a
condition precedent to a change of a
practice of this character.
A contrary holding would place past
practice on a par with written agreement and create the
anomaly that, while the parties expend great energy and time in negotiating the details of the
Agreement, they unknowingly and unintentionally commit themselves to unstated and perhaps
important matters which in the future may be found to have been past practice.@
That is the very case here because the prior assignment of overtime happened through
Ahappenstance@ and/or Aconvenient methods at that time.@ The County therefore has the
change it because B absent any express contract language providing otherwise B Article 3
its managerial freedom to do so.
In light of the above, it is my
That the County did not violate Article 6 of the contract when it failed to call in
Waege to perform certain overtime work in Section 16; the grievance is therefore denied.
Dated at the City of Madison, Wisconsin this 31st day of August,
Amedeo Greco, Arbitrator