BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PARK VIEW REHABILITATION PAVILION
PLEASANT ACRES EMPLOYEES UNION, LOCAL
affiliated with the
WISCONSIN COUNCIL OF COUNTY AND
MUNICIPAL EMPLOYEES, AFSCME,
PARK VIEW REHABILITATION PAVILION
PLEASANT ACRES, WINNEBAGO COUNTY,
Mr. Richard C. Badger, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O.
Box 2825, Appleton, Wisconsin 54913, appearing on behalf of Park View Rehabilitation
and Pleasant Acres Employees Union, Local 1280, affiliated with the Wisconsin Council of
and Municipal Employees, AFSCME, AFL-CIO, referred to below as the Union.
Mr. John R. Bodnar, Winnebago County Corporation Counsel,
Winnebago County Courthouse,
P.O. Box 2808, Oshkosh, Wisconsin 54903-2808, appearing on behalf of Park View
Pavilion and Pleasant Acres, Winnebago County, Wisconsin, referred to below as the County
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of seven employes represented
Union. The Commission appointed Richard B. McLaughlin, a member of its staff. Hearing
matter was held on September 24, 1998, in Oshkosh, Wisconsin. The hearing was not
The parties entered their positions at the hearing, and chose not to file written briefs.
The parties stipulated the following issues for decision:
Did the County violate the contract when it suspended the seven grievants
to the then existent mandatory overtime policy?
If so, what is the appropriate remedy?
. . .
WHEREAS, in order to provide the best care and
humanitarian consideration of the residents,
to maintain the existing harmonious relationship between the Employer and its employees, to
the morale, well-being and the security of said employees . . . We, the contracting parties,
the following as our will and agreement:
. . .
CONDUCT OF UNION
. . .
. . .
Any employee may be suspended, discharged, or
otherwise disciplined for just cause.
As a general rule, the sequence of disciplinary actions shall be oral reprimands, written
suspension, and discharge. . . .
. . .
Except as specifically restricted or limited by this
Agreement, the management of Park
View Rehabilitation Pavilion and Pleasant Acres and the direction of the working forces is
exclusively in the Employer, which rights will not be used to discriminate against any
covered by this Agreement. . . .
LETTER OF UNDERSTANDING
PARK VIEW REHABILITATION PAVILION AND
EMPLOYEES UNION, LOCAL 1280, AFSCME, AFL-CIO
It is agreed between the parties that in the interest
of providing safe patient care, a
nursing service employee will not leave his/her work station at the end of the scheduled shift
person assigned to his/her patients has arrived or permission to leave has been granted.
it is understood that a replacement will be assigned as quickly as possible in accordance with
XII of the Agreement.
The grievances focus on the events of January 26, 1997. On that day, the Packers
the Patriots in Super Bowl XXXI. The grievances involve employe attempts to participate in
event at sites other than the County's health care facilities. The grievants are Certified
Assistants (CNA) employed at the County's Parkview Health Center. The Parkview Health
houses normative residents at its Pleasant Acres Pavilion and chronically mentally ill
residents at its
Seven employe grievances were filed concerning those events. The parties stipulated
grievances pose the same issue on the same set of facts. The County docked these employes
of pay by informing them not to report for work on a scheduled work day. This loss of pay
discipline in the traditional sense. Rather, the County directed the loss of pay through its
Mandatory Overtime Procedure, which is referred to below as the MOT.
The MOT in effect at the time was jointly developed by the Union and the County
put into effect in April of 1995. The MOT reads thus:
PURPOSE: To meet minimum CNA staffing, to ensure
the safety and welfare of both
residents and staff. . . .
MOT is only to be used as a final
option in meeting staffing needs. When time permits other
alternatives are to be attempted prior to initiating MOT. These include maintaining and
list of overtime volunteers, soliciting full and part time off duty employees, and notifying
unit of the need for overtime. Attempts to find voluntary replacements are to continue after
has been appointed.
MOT will be assigned by last
acceptable overtime worked (per date). All full and part time
CNA's will be included in this process. MOT to cover PMs and NOCs will be done by shift
building (ie: AM's-PA will stay to cover PMs-PA; PMs-PAV will stay to cover
to cover AMs will be chosen from the combined PA and PAV night shift staff.
An updated seniority list, in
alphabetical order, with dates of those already having served
MOT will be made available and maintained by the RN Shift Coordinators and will be posted
of the Shift Coordinator's office.
The Personnel Clerk/Nursing
Office or RN Shift Coordinator will assess staffing levels prior
to each shift change. If staffing levels are found to be at minimums the potential for
overtime will be determined. The next qualifying staff for MOT duty will be notified of the
for MOT. Assigned MOT person(s) will remain on duty until directed otherwise. All MOT
assignments will be for the shortest period of time possible.
New employees: . . .
Substitution: . . .
Medical Reasons: . .
Hardship: If MOT presents a hardship to an employee or their immediate
family unit due to an ongoing extenuating circumstance, documentation may be provided for
exemption from MOT. . . .
Emergency: Cases will be dealt with on an individual basis with approval at
the discretion of the Personnel Clerk/Nursing Office or the RN Shift Coordinator. Follow-up
documentation may be required to confirm the emergency (refer to "Personal/Family
Overtime: A person will be exempted from MOT by having already worked
overtime within the concurrent calendar week (Sunday thru Saturday) in which the MOT is
This exemption does not include any
upcoming overtime which has not already been worked.
If all staff scheduled have met MOT
requirements for a particular week, the least senior employee who has not
worked overtime the
previous day, will be required to work. Each employee is responsible to notify the Personnel
Clerk/Nursing Office or RN Shift Coordinator if they have already volunteered and worked
within that particular week.
Overtime: When overtime is needed, a person volunteering for the overtime will
have fulfilled their turn for MOT when the overtime meets the need stated by Shift
Manager or Personnel Clerk/Nursing Office (i.e. which unit or floor to work and length of
voluntary overtime sign-up sheet will be posted near the daily schedules in the basement of
PAV and PA, and a call sheet will be kept at the switchboard. This is a chance for staff to
in advance for days interested in working overtime when MOT is needed. This does not
are committed to working that particular day, but will be used to contact those persons first
going to mandatory overtime.
Refusal to Work
MOT: Refusals will not be accepted. Any person who refuses to work
MOT will automatically be suspended for one day without pay to take effect within five
working days and will remain first on the list for MOT duty.
Leaving Ill: Leaving
"ill" after being selected for MOT will be considered as not fulfilling
a MOT obligation and this individual will remain first on the MOT list. Leaving ill during
second time may constitute a "Refusal to Work MOT" and be subject to disciplinary action.
Unanticipated staffing needs which
occur as the result of any emergency (such as adverse
weather) will be managed as necessary. Actions required to provide adequate staffing during
times may supersede the MOT guidelines.
The grievances posed here are not the first MOT based disputes,
but represent facts unique in the
parties' implementation of the MOT. Prior emergencies resulted from adverse weather
It is undisputed that the one day suspensions at issue here implicate the MOT and not the
discipline system established by Article VI.
The factual background to the events of January 26 are not disputed, but are best set
as an overview of witness testimony.
Spaay is no longer employed by the County, but worked for the County as a
on January 26. She served, on Super Bowl Sunday, on the day shift as Scheduling
Coordinator. On January 25, a CNA warned Spaay that a number of employes were
planning to call
in sick. This posed a potential dilemma, since the County had staffed for the weekend
accommodate the absence of as many employes as possible.
Spaay worked at the Rehabilitation Pavilion on January 26, and it was apparent that
the second shift would be a problem. The first shift runs from 6:30 a.m. until 2:30 p.m.
the morning of January 26, Spaay received call-ins for the second shift. As the morning
Spaay went to all the units to seek volunteers to stay after the first shift. She found none.
proceeded to repeat the procedure, "begging" for volunteers. She again met with no success.
Attempts to pull in employes from the call-in list or from Pleasant Acres afforded no
then reverted to the MOT. After isolating the employes who would be required to stay under
MOT, she went to their work station to inform them of their overtime assignment. Eight of
employes she met told her they would refuse to stay and would accept the one day
Spaay did not have the authority to order employes to work and contacted her
Mary Tack and Judy Pahlow. Tack and Pahlow informed Spaay to announce throughout the
that no first shift employe would be permitted to leave the facility until a replacement for the
reported for duty. Spaay estimated that this declaration of an emergency came between
2:00 p.m. After her announcement, a few employes volunteered to accept overtime.
No CNA refused to stay at the facility at the close of the first shift, although certain
on one unit threatened not to stay. As second shift employes reported for work, Spaay
first shift counterparts. Although staffing was "very thin," Spaay was able to staff the
within State of Wisconsin mandates.
Spaay did not view her staffing difficulty to be the result of a job action. She wrote
account of the shift for Mark Luebke, the County's Personnel Coordinator for the Health
She played no role in the one day suspension meted to the eight employes who refused work
the MOT, but did expressly note the cooperation of those employes who volunteered to stay
the announcement of emergency staffing.
Lowe is the Administrator of Park View Health Center, and served in that capacity
26, 1997. She was one of the Employer representatives who negotiated the terms of the
situation of that day was unprecedented and unanticipated by the employes who drafted the
Lowe had heard rumors of a concerted refusal to work on January 26, but did not
rumors to play any role in the declaration of a staffing emergency. Rather, she viewed the
to be the result of employes refusing to work overtime voluntarily and after being assigned to
under the MOT. She noted that the eight disciplined employes reported for
work in the morning of January 26, but then stated their refusal to work overtime
under the MOT.
No employe from the call-in list was disciplined. None of the employes who ultimately
to work overtime was disciplined. That the County was able to staff the second shift did not,
Lowe's eyes, constitute a defense for the one-day suspensions. None of the suspended
afforded her an excuse other than the inconvenience the overtime would have imposed on
enjoyment of a then only anticipated Packer victory.
Rodat, now retired, served the County for twenty-eight years as a CNA. She served
Union as its Treasurer, and served as a resource for many unit employes. She was aware of
staffing problems prior to January 26. She, as many other employes, had put in overtime
prior to the
commencement of the first shift on January 26 to avoid being compelled to work on January
the MOT. After the County declared an emergency at roughly 1:15 p.m., Rodat advised unit
members to stay at their positions or risk losing their jobs.
Rodat affirmed that the County's declaration of emergency did not occur until after
employes had refused to work overtime under the MOT. In her view, the County's
emergency suspended the operation of the MOT. Once the MOT had been suspended, the
lacked the authority to issue the one-day suspensions authorized by it.
Monday is the Union's Vice-President. Rodat phoned her on January 26 to discuss
staffing dilemma caused by employe refusals to work overtime. Monday advised Rodat to
Spaay to declare an emergency. Rodat again phoned Monday after the County had declared
emergency. She advised Rodat that employes should not leave the facility unless they were
to put their jobs at risk.
Monday was one of the Union representatives who participated in the creation of the
In her view, the County's declaration of an emergency suspended the operation of the MOT
precluded the application of its suspension provision. Had the County not declared the
the Union would not have filed a grievance.
Further facts will be set forth in the
THE COUNTY'S POSITION
The County contends that the MOT has worked well except in this instance, which
contemplated by the parties when they created it. The emergency declared by the County
spawned by the refusal of an unexpectedly large number of employes to work overtime. The
paragraph of the MOT then in effect clearly establishes that the County's declaration of an
emergency has no effect on the application of its terms. The use of "may" instead of
the term "supercede" unambiguously establishes this.
This conclusion is not simply good contract interpretation. It is also good
If the MOT has no effective sanction, then the policy has no meaningful effect and the
issue here would be encouraged in the future. That the parties voluntarily increased the
a revised MOT underscores this conclusion.
The County concludes that the grievance must be denied.
THE UNION'S POSITION
The Union contends that the facts posed by the grievance are unique and cannot be
This establishes that the grievance does not concern the establishment of precedent. Rather,
grievance questions the equitable implementation of the MOT.
The incident posed here was not contemplated by the parties at the time they created
MOT. Nor does the incident pose egregious County or Union conduct. The absences do not
constitute a job action. The County appropriately tried to run a tight schedule on Super
weekend. The crisis anticipated by the County did not materialize, and thus its response is
than an over-reaction.
That over-reaction should not, however, become a basis for a misapplication of the
The revised MOT contains the "supersede" sentence of the final paragraph of the MOT
To sustain the County's conduct denies employes the choice to decline overtime which is one
primary reasons for the policy. In this case, employes who were conscientious enough to put
overtime earlier in the week received an inappropriate "double whammy" by being compelled
work overtime on Super Bowl Sunday.
The final paragraph of the MOT must be read to void the MOT once an emergency is
declared. Any other result wrongfully denies employes the choice which makes the MOT
follows that the grievance must be sustained.
The issue for decision is stipulated and focuses on the MOT. A MOT suspension
distinguished from an Article VI suspension. MOT based suspensions are designed to
employe acceptance of overtime. Article VI based discipline is a just cause based sanction
to punish inappropriate behavior and set the stage for the dismissal of an employe incapable
modifying that behavior.
Seven of the eight suspended employes grieved their suspension. The parties'
the issue focuses the propriety of the suspension primarily on the terms of the
MOT rather than on Article VI. The strength of the Union's case is its assertion that
actions effectively superseded the MOT. Once the MOT was superseded, the County's
to mete a one-day suspension vanished under the terms of the final paragraph of the MOT.
more policy-based level, the strength of the Union's case is that the suspended employes
the burden of the MOT policy without having received its benefit. Under this view, an
decline MOT knowing a sanction will follow. The employe thus accepts a day off in return
privilege of avoiding a MOT shift.
While the Union's contention has persuasive force, the County's interpretation is
rooted in the terms of the MOT. The "supersede" reference appears in the final sentence of
MOT. "Supersede" can be read to mean "void" as the Union asserts. The subject of that
is not, however, a declaration of emergency but "(a)ctions." Those actions are modified in
sentence by "required." The distinction should not be overlooked. If the sentence had a
declaration of emergency as its subject, then a general voiding of the MOT guidelines would
appropriate result. The sentence focuses, however, on "required actions." This greater
implies that only those provisions of the MOT conflicting with required, emergency actions
The parties' use of the term "may" before "supersede" underscores this conclusion.
"may" can be read as "shall," it is more commonly viewed as a term of limitation and
The term "may" implies that the MOT guidelines are not to be suspended as a matter of
A review of the MOT as a whole further underscores this conclusion. The
coverage of the policy is apparent on its face. The drafters of this policy took their work
and addressed the issues covered by it comprehensively. More significantly, reading a
an emergency to void the entire policy yields unpersuasive results. The final sentence of the
paragraph of the "PROCEDURE" section notes that even when the MOT is employed,
replacements" should still be sought. Accepting the Union's interpretation would void this
for no evident purpose. Presumably, a volunteer for overtime works more productively than
a non-volunteer. Similarly, the final sentence of the final paragraph of the "PROCEDURE"
that MOT assignments will be for no longer than necessary. It is not apparent why this
should be unnecessarily voided. It would seem an odd interpretation of the MOT to conclude
because the County declared an emergency on January 26 it secured the authorization to hold
employes longer than necessary.
Beyond this, the Union's interpretation strains the purpose of the "REFUSALS"
the MOT. Under that section, a refusal is not to be accepted and "automatically" results in
a one-day, non progressive-discipline suspension. It is not apparent how the
issued by the County constitute something other than an automatic act. Beyond this, it
apparent what sanction would result if the MOT is not read in this fashion. The MOT acts
significant degree as a defense to discipline, potentially for insubordination, under Article VI.
asserted declaration of emergency voided the MOT, and if the County is convinced conduct
it has a disciplinary interest occurred, has that discipline thus been
aggravated to the level of Article VI? This has no apparent basis in either the contract
or the MOT.
Rather, it appears the parties intended the MOT to provide a disincentive to use Article VI
to secure employe acceptance of overtime.
In sum, the final paragraph of the MOT authorizes emergency actions by the County
staffing levels. Such "required" actions "may supersede the MOT guidelines." This
the MOT should, however, be limited to the extent necessary to assure staffing. The
taken do not amount to a general declaration of emergency which voids the MOT as a whole.
the final sentence affords the County a limited defense against challenge to the actions it is
to take in emergency situations to assure staffing.
Before closing, it is appropriate to tie this conclusion more closely to the parties'
That the parties increased the sanctions applied by the MOT in a revision to the policy
incident of January 26, 1997, can play no role in the resolution of this grievance.
The Union's assertion that the suspensions impose an unjust result cannot be lightly
dismissed. Employes who called in sick on January 26 received no penalty, while those who
to work did. That some of those employes put in overtime earlier in the week to secure the
to back the Pack from sites other than the Health Center aggravates the inequity. This
not, however, afford a persuasive basis to overturn the conclusion stated above. The
purpose of the MOT is to assure staffing for the vulnerable residents of the Health Center.
this, the inequity is not solely the result of County conduct. Those employes who
avoided work on January 26, no less than the County, forced the inequity noted above on
employes. The sanction imposed by the County for the staffing dilemma of January 26
promotes employe assumption of overtime. Overturning that sanction does not.
The County did not violate the contract when it suspended the seven grievants
the then existent mandatory overtime policy.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 14h day of October, 1998.
Richard B. McLaughlin, Arbitrator