BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY PROFESSIONAL
ASSOCIATION, LOCAL 101, of the
LABOR ASSOCIATION OF WISCONSIN,
LINCOLN COUNTY (SHERIFF'S
(Terry Sukow Grievance)
The above-captioned parties, hereinafter the Association and the County,
parties to a collective bargaining agreement which provided for final and binding arbitration
grievances. Pursuant to a request for arbitration, the Wisconsin Employment Relations
appointed the undersigned to decide a grievance. A hearing, which was not transcribed, was
September 30, 1998, in Merrill, Wisconsin. After the hearing the parties filed briefs,
record was closed December 3, 1998. Based on the entire record, the undersigned issues the
The parties stipulated to the following issue:
Did the Employer violate the provisions of the collective
bargaining agreement when it denied
the grievant's vacation request for July 4, 1998? If so, what is the appropriate remedy?
The parties' 1997-1998 collective bargaining agreement contained the following
ARTICLE 2 MANAGEMENT RIGHTS
2.1 The County possesses the sole right to operate
County government and all
management rights repose in it, subject only to the provisions of this Contract and applicable
law. These rights include, but are not limited to the following:
. . .
2.1.1 To direct all
operation of the County;
2.1.2 To establish
reasonable work rules and schedules of work;
. . .
2.1.10 To determine the
kinds and amounts of services to be performed as pertains to
County government operation; and the number and kinds of classifications to
perform such services;
. . .
ARTICLE 18 VACATIONS
. . .
18.6 - Scheduling. The Department Head
shall schedule the vacations within his Department.
Choice of vacation time within a given classification shall be by seniority.
. . .
18.6.4 If a vacation request falls during a period that would require
overtime to maintain
adequate manpower the vacation request will be denied.
Terry Sukow has been a deputy with the Lincoln County Sheriff's Department for 20
He works the 2:00 to 10:00 p.m. shift. That shift usually consists of three people: one
On April 10, 1998, Sukow requested a vacation day for July 4, 1998. That day was a
regularly scheduled work day for him pursuant to the Department's 4-2 work schedule. This
request was denied by Sukow's shift commander that same day. The basis for the denial was
Sukow had failed to request a minimum block of four consecutive vacation days. Sukow
denial of his vacation request. When Chief Deputy Soucy responded to the grievance, he
the reason for denying Sukow's vacation request. The changed reason for denying the
request was the Department's manpower needs for the day. Soucy's memo provided in
part: "Your request for vacation on that day. . .must be denied because it falls during a
would require overtime to maintain adequate manpower."
Since his vacation request was denied, Sukow worked his regularly-scheduled shift on
Saturday, July 4, 1998. That day he patrolled in the southern half of the County and assisted
Merrill Police Department with traffic control during the evening fireworks display.
Five deputies in the department were called in to work overtime on July 4, 1998.
them worked at a parade in Tomahawk and one worked on patrol in the southern half of the
Sukow was subsequently paid eight hours at straight time for working that day and
hours at straight time for working a holiday. The latter was holiday pay. Thus, Sukow was
total of 16 hours at straight time for working July 4, 1998.
POSITIONS OF THE PARTIES
The Association contends the County violated the labor agreement when it denied
vacation request for July 4, 1998. According to the Association, Sukow's request should
granted. It makes the following arguments to support this contention. First, it submits that
Employer initially denied Sukow's vacation request, its operational
needs three months hence were not a factor. To support this premise, it notes that
Employer first denied the vacation request, it chose to rely on the fact that Sukow did not
four-day block of vacation. The Association infers from this that had Sukow requested a
block of vacation, his vacation request would have been granted. The Association asks
why it is that a four-day block of vacation would not have affected the Department's
a one-day vacation causes an undue disruption. Second, with regard to the County's revised
for denying Sukow's vacation request (namely, insufficient manpower), the Association avers
there was adequate manpower on July 4, 1998 for Sukow to have the day off. To support
premise, it notes that a full shift was worked that day. The Association acknowledges that
deputies also worked overtime that day, but it differentiates their overtime from the overtime
would have been needed to fill Sukow's vacancy. According to the Association, the
difference is this:
Sukow's absence "was related to a contractual benefit" (namely, vacation) while the other
"was to provide a political presence at the holiday festivities." Finally, the Association
the County should not be able to deny an employe's vacation request simply because it does
to pay overtime to call in someone else to cover the absence. In the Association's view, that
a legitimate reason for denying a vacation request. The Association contends that if the
sustains the County's position here, this will result in the outright denial of a contractual
(namely, vacation) to employes. The Association characterizes this as an "absurd notion".
to remedy this contractual breach, the Association asks the arbitrator to award Sukow four
pay at straight time. The Association believes this amount will compensate him for the
"inconvenience" of being required to work on July 4, 1998.
The County contends it did not violate the labor agreement when it denied Sukow's
request for July 4, 1998. In its view, its denial of the vacation request is expressly allowed
contract, specifically Article 18.6.4. According to the County, that provision is "right on
point in this
case." It avers that section provides that vacation requests will be denied if granting it (the
request) would require overtime to maintain adequate manpower. The Employer submits that
exactly what would have happened here if it had granted Sukow's vacation request for July
(namely, that it would have had to replace him with someone else on overtime.) In the
view, that makes no sense. Elaborating further on this point, the County disputes the
assertion that "adequate manpower" existed on July 4, 1998. To support the premise that the
Department's regular manpower on that date was not adequate, the County calls attention to
that the Department called in five employes to work overtime that day. The County asks
how the Association can argue there was adequate manpower on that day when the County
call in additional employes and pay them overtime. The County argues that if there had been
adequate manpower on that day, there would not have been any need to call in additional
work and pay them overtime. The County therefore requests that the grievance be denied.
At issue here is whether the Employer violated the labor agreement when it denied the
grievant's vacation request for July 4, 1998. The Association contends that it did while the
disputes that assertion. Based on the rationale which follows, I find that the vacation denial
violate the labor agreement.
My analysis begins with a review of the basis for the denial of the vacation request.
vacation request was initially denied on the grounds that employes had to take vacation in
blocks and that Sukow had not requested a four-day block of days. The Employer later
position and rescinded the requirement that employes take vacation in four-day blocks. Such
their right. Nothing in the grievance procedure prohibits the Employer from changing their
or repudiating the basis for a position. That being so, it is implicit they can do so. The
subsequently did just that and denied the vacation request on different grounds. The revised
for denying the vacation request was that there was inadequate manpower for Sukow to be
the requested day off (July 4, 1998). In their brief, the Association essentially bootstraps
the basis for the initial denial (namely, the four-day block requirement) with the basis for the
subsequent denial (namely, inadequate manpower). In other words, it connects them. In my
though, there is no connection whatsoever between the two. They are completely separate
The first denial was based on a then-existing departmental policy and the second denial was
Chief Deputy Soucy's view of the department's operational manpower needs for that holiday.
record indicates that the departmental policy just referenced was subsequently eliminated.
no longer exists, it follows that it has no bearing on this case. That being so, it is the second
for the denial of the vacation request (namely, inadequate manpower) that will be reviewed
determine if it passes muster. Attention is now turned to making that call.
The language applicable here is Article 18. 6.4. It provides thus: "If a vacation
during a period that would require overtime to maintain adequate manpower the vacation
be denied." An overview of this language follows. Many collective bargaining agreements
contain language dealing with denial of vacation requests. This agreement is different
does contain language which deals with the denial of vacation requests. Specifically, the
referenced creates a criteria for denying vacation requests. It specifies in plain terms that a
request will be denied if granting it (the vacation) would require overtime to maintain
manpower". The phrase "adequate manpower" is not defined in that section or anywhere
else in the
contract. Thus, the contract is silent concerning how "adequate manpower" is determined.
contract is silent concerning how "adequate manpower" is determined, the Employer has the
right to make that determination so long as its decision is not arbitrary, capricious or
Lest there be any question about it, it is specifically noted that the Management Rights clause
the Employer the right "to direct all operation of the County"; "to establish schedules of
"to determine the amounts of services to be performed."
Chief Deputy Soucy decided that the Department's staffing needs for the 2:00 to
shift on the July 4 holiday would not be met with the standard shift of three people. He
decided that since additional staff was needed in order to have adequate manpower for the
holiday, this would be accomplished by having employes work overtime. Soucy testified that
based his conclusion about the Department's staffing needs on his 20 years experience as a
with the department. He also testified that July 4 is historically busy and understaffed.
Soucy's assessment of the Department's staffing needs for the July 4 holiday has not
shown to be arbitrary, capricious or unreasonable. That day, all the employes on the 2:00 to
p.m. shift worked as scheduled. In addition, five employes worked overtime that day. The
five employes worked overtime that day conclusively establishes that even without any
the 2:00 to 10:00 p.m. shift, there was not "adequate manpower" that day with the normal
of staff working. Under these circumstances, Sukow's vacation request for July 4, 1998 fell
a period that would require overtime to maintain adequate manpower." Since it did, Article
expressly allowed the Employer to deny Sukow's July 4, 1998 vacation request. If the
granted Sukow's vacation request for July 4, 1998, it obviously would have had to replace
someone else on overtime.
In so finding, I am not persuaded by the Association's attempt to differentiate between
underlying reasons for the July 4 overtime. The Association argues in this regard that the
of the employes who worked in Tomahawk "was to provide a political presence at the
festivities" while the overtime that would have been needed to fill Sukow's vacancy "was
a contractual benefit" (namely, vacation). I find that even if the distinction just noted is true,
does not affect the outcome herein. Article 18.6.4 does not delve into the underlying reasons
overtime, so the undersigned will not do so either.
Finally, attention is turned to the Association argument that the County should not be
deny an employe's vacation request simply because it does not want to pay overtime to call
someone else to cover the absence. The problem with this contention is that, as noted
18.6.4 expressly says otherwise. That being the case, the place for the Association to
concern with same is at the bargaining table.
In light of the above, I issue the following
That the Employer did not violate the provisions of the collective bargaining
it denied the grievant's vacation request for July 4, 1998. Therefore, the grievance is
Dated at Madison, Wisconsin this 3rd day of February, 1999.
Raleigh Jones, Arbitrator