BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE COUNTY DEPUTY SHERIFFS'
MILWAUKEE COUNTY (SHERIFF'S
Gimbel, Reilly, Guerin & Brown by
Franklyn M. Gimbel and Aaron M. Hurvitz,
behalf of the Milwaukee County Deputy Sheriffs' Association.
Timothy R. Schoewe, Deputy Corporation Counsel, Milwaukee
County, appearing on behalf of
The Milwaukee County Deputy Sheriffs' Association, hereinafter referred to as the
Association, and Milwaukee County, hereinafter referred to as the County or the Employer,
parties to a collective bargaining agreement which provides for final and binding arbitration
grievances arising thereunder. The Association made a request, with the concurrence of the
that the Wisconsin Employment Relations Commission designate a commissioner or member
staff to hear and decide a grievance filed by the Association. The undersigned was so
A hearing was held in Milwaukee, Wisconsin on September 3, 1998. The hearing was not
transcribed. The parties filed post-hearing initial briefs. The Association filed a reply brief.
County elected not to file a reply brief. The record was closed on January 19, 1999.
The Association describes the issue: [d]oes sec. 3.14(2)(a) entitle employes to extend
time by adding one day of compensatory time at the front and one day at the back of their
The County states the issue: [d]id the County violate sec. 3.14 of the labor agreement
it denied compensatory time at either end of vacations scheduled four and ten months ahead,
respectively, with directions to resubmit the requests on a more timely basis? If so, what (is
I define the issue as twofold:
a) Does sec. 3.14(2)(a) of the parties' labor agreement entitle employes to exercise
of extending their respective vacation times by adding one day of compensatory time at the
one day at the back of their respective vacations?
b) If so, is such entitlement subject to the approval or denial of the sheriff?
1.02. MANAGEMENT RIGHTS.
The County of Milwaukee retains and reserves the sole
right to manage its affairs in accordance with all applicable laws, ordinances, regulations and
executive orders. Included in this responsibility, but not limited thereto, is the right to
number, structure and location of departments and divisions; the kinds and number of
services to be
performed; the right to determine the number of positions and the classifications thereof to
such service; the right to direct the work force; the right to establish qualifications for hire,
to test and
to hire, promote and retain employes; the right to assign employes, subject to existing
the terms of this Agreement; the right, subject to civil service procedures and ss. 63.01 to
Stats., and the terms of this Agreement related thereto, to suspend, discharge, demote or take
disciplinary action; the right to maintain efficiency of operations by determining the method,
means and the personnel by which such operations are conducted and to take whatever
reasonable and necessary to carry out the duties of the various departments and divisions.
In addition to the
foregoing, the County reserves the right to make reasonable rules and regulations
relating to personnel policy procedures and practices and matters relating to working
conditions giving due regard
to the obligations imposed by this Agreement. However, the County reserves total discretion
with respect to the
function or mission of the various departments and divisions, the budget, organization, or the
performing the work. These rights shall not be abridged or modified except as specifically
provided for by the terms
of this Agreement, nor shall they be exercised for the purpose of frustrating or modifying the
terms of this
Agreement. But these rights shall not be used for the purpose of discriminating against any
employe or for the
purpose of discrediting or weakening the Association.
By the inclusion of the foregoing
managements rights clause, the Milwaukee Deputy Sheriffs'
Association does not waive any rights set forth in S. 111.70, Stats., created by Ch. 124,
1971, relating to bargaining the impact upon wages, hours or other conditions of employment
employes affected by the elimination of jobs within the Sheriff's Department by reason of the
of the powers herein reserved to management. No employe covered
by this Agreement shall, during the term of
this Agreement, have his position within the
Milwaukee County Sheriff's Department diminished on any basis except for misconduct in
performance of his duties within the department.
In the event the organizational structure of
the Sheriff's Department is modified by the
establishment of positions in classifications other than those currently represented by the
and where new employes assigned to such positions will perform duties traditionally
unit employes (Deputy Sheriff I, Deputy Sheriff I (Bilingual) (Spanish), Deputy Sheriff
such positions shall not be filled in the new classification except as vacancies occur through
in the unit classification which had traditionally performed such duties. The County reserves
to assign employes within classification to other duties within the department in order to
vacancies in the function to which employes in the new classification are to be appointed.
. . .
3.02(4). Employes shall have the
of accumulating 120 hours of compensatory time,
exclusive of holidays, in lieu of cash, within 26 pay periods, provided that such
may be liquidated only with the consent of the department head and if the County determines
staffing is adequate and if no overtime assignment will result employes will be allowed to
their accrued compensatory time. If, because of the needs of the department, such
is not liquidated within the time limited, the unliquidated balance shall be compensated in
. . .
. . .
(2) Employees entitled to 120 hours vacation or more shall be
permitted to split one such
week into not more than 2 parts, one part being 24 hours, and the other being 16 hours,
the selection of such split week shall be made in accordance with existing departmental
respect to vacation selection on the basis of seniority, as defined in par.(4). Such split week
shall be selected by the employee who elects to do so at the same time that all other annual
periods are selected and scheduled. In accordance with the provisions of s. 17.17(1),
Sheriff may deny an employe's request to split a week of vacation when, in his judgment,
vacation would impair the efficiency of the department or division.
(a) Any employee may use accumulated
compensatory time to extend a vacation by one day
at the front and one day at the back end of such vacation.
The Grievant, Deputy Charles G. Coughlin, is assigned to work at the Milwaukee
On January 5, 1998, Deputy Coughlin requested to use four days of compensatory time he
accumulated to add to two of his vacation periods. Specifically, Deputy Coughlin sought to
day to the front and one day to the back of each of the two vacation periods. Under
procedures codified in sec. 3.14(3) of the parties' labor agreement, the Sheriff's Department
establish a vacation selection procedure that will enable all deputies to be informed of their
vacation request by March 1 of each year.
Deputy Inspector Michael Johnson denied Deputy Coughlin's request to augment his
periods with compensatory time. Deputy Coughlin was advised by the Deputy Inspector to
the same request within thirty days of each of his contemplated vacation periods.
POSITIONS OF THE PARTIES
The Association regards this issue as particularly important to deputies assigned to
division where it appears that compensatory time is more easily earned and accumulated than
The Association finds the language of sec. 3.14(2)(a) unambiguous in providing that
employe may use accumulated compensatory time to extend a vacation. The Association
the County's attempt to use the general language of sec. 3.02(4) to modify the provisions of
3.14(2)(a) violates the general rule of contract construction that specific language must
In the alternative, the Association contends that even if the language of sec.
ambiguous, parole evidence introduced at hearing demonstrate that the parties intended sec.
3.14(2)(a) as an entitlement. The Association cites the testimony of three witnesses it called,
whom were members of the bargaining team that negotiated the 1998-2000 agreement. The
Association believes the testimony of these witnesses establishes that the intent of sec.
to guarantee that employes in the detention bureau would be able to use their accumulated
compensatory time. This, according to the Association, was a sharp contrast to the situation
previously existing for detention bureau employes who had difficulty in utilizing their
The Association argues that the testimony offered by the witness called by the County
not refute the Association's view as to the intent of the sec. 3.14(2)(a) language. The
believes the County's witness simply testified that the rejection of Deputy Coughlin's request
compensatory time was based on past practice.
The County believes its actions in the administration of compensatory time-off under
collective bargaining agreement comply with both the letter and the spirit of labor agreement.
The County lists secs. 1.02, 3.02(4) and 3.14(2)(a) as the pertinent contract
County asserts that one portion of the agreement cannot be read in isolation, but " . . . must
in concert with other provisions which impact on contract administration and interpretation."
The County argues that sec. 1.02 (management rights) reserves to the Sheriff and the
the right to determine the work force necessary to carry out the department's mission. The
section further preserves management's right to maintain efficiency of operations by
method, the means, and the personnel by which department operations are conducted.
The County acknowledges that the sec. 1.02 language is broad, but mutually agreed
to by the
parties, and consistent with the "constitutional immemorial duties of the Sheriff." It finds the
language of this section to be clear and unambiguous.
The County also finds the language of sec. 3.02(4) to be clear and unambiguous. It
the contingencies recited in that section relating to the use of compensatory time demonstrate
use of compensatory time off was not a right, but rather a matter of the Sheriff's discretion.
the County's interpretation, compensatory time off is allowed only with the Sheriff's consent,
if staffing is deemed adequate by the County, and only if no overtime results.
The County additionally urges that the Association's interpretation of the sec.
language is self-serving and represents a unilateral expectation of the Association, not a
understanding of the parties.
The County further argues that the Association has acquiesced in the County's
of the disputed passage, noting that earlier denials of compensatory time off requests based
(inadequate) staffing were never aggrieved.
Finally, the County contends that neither the union nor the collective bargaining
may legally impinge on the sheriff's ability to run his jail. The County argues that the
the county jail and prisoner custody is a constitutionally protected function of the sheriff and
could not be transferred to another office.
The County views the instant grievance as an attempt by the Association " . . . to
the sheriff who works in the jail." The County argues that the legislature may not usurp the
constitutional and immemorial powers. Neither, says the County, may the union accomplish
what it cannot accomplish directly under the guise of compensatory time off.
In summary, the County reasserts that the contested language is clear and
argues that the Association is seeking not to interpret the contract but to expand it " . . . by
a new entitlement benefit not bargained for or mutually agreed to by the parties." The
maintains that any examination of the provisions cited by the County as controlling clearly
demonstrates that the County, through the Sheriff, could act as it did in this matter. "The
specifically allows the Sheriff to determine the method and means by which he carries out his
immemorial duties, in this instance, keeper of the jail," concludes the County, and ". . . also
specifically allows the Sheriff discretion to deny the use of compensatory time."
In reply, the Association points out that the sec. 3.14(2)(a) language specifically
employes to use accumulated compensatory time to extend a vacation one day at the front
day at the back. The Association reasserts its view of contract construction that specific
language controls over general.
The Association disputes the County's characterization of its witnesses' testimony as
self-serving, and believes the County misstates the substance of the testimony by declaring
shows only that compensatory time off was an important issue to the Association. The
believes the substance of the testimony offered by its witnesses went to the intent of sec.
The Association asserts that the County has failed to demonstrate that the right of
to use compensatory time off pursuant to the provisions of sec. 3.14(2)(a) contravenes the
authority under the State Constitution. Neither was the use of compensatory time off ever
in the cases cited by the County, according to the Association.
The County declined to file a reply brief, stating that it found its position adequately
in its previous brief.
Both parties contend that the language of the contract is clear and unambiguous.
Notwithstanding their agreement as to its clarity, each offers a competing interpretation of
The Association limits its focus to the specific language of sec. 3.14(2)(a). On its
language appears to grant employes the right to extend a vacation by one day at the front and
at the back of the vacation period.
The County doesn't necessarily disagree, but argues that the sec. 3.14(2)(a) language
qualified by the sec. 1.02 management rights provisions of the parties' labor agreement.
language the County is reserved the right to 1) determine the work force necessary to carry
department's mission, 2) to maintain the efficiency of operations by determining the means
personnel by which such operations are conducted, and 3) to take whatever actions are
and necessary to carry out the duties of the various departments and divisions.
The general rule is that "[u]nless a contrary intention appears from the contract
a whole, the meaning of a general provision should be restricted by more specific provisions.
the County is correct that the sec. 3.14(2)(a) language cannot be read in a vacuum, but must
in conjunction and concert with other contractual provisions. If, however, no contrary
the express provisions of sec. 3.14(2)(a) can be found, the general provisions of the
rights language contained in sec. 1.02 must be found to have been limited by the more
Elkouri & Elkouri, How Arbitration Works, Fifth Ed., BNA,
Wash. D.C., 498 (citations omitted).
Section 3.14 of the parties' labor agreement deals exclusively
with vacations. Subsection
1 grants employes an entitlement to a period of paid vacation, the length of which depends
individual employe's years of continuous service. Subsection 2 grants employes entitled to
hours or more of vacation the option of splitting a vacation week into two parts, but
reserves to the Sheriff the right to deny an employe's request to split a week of vacation " . .
when, in [the sheriff's] judgment, such split vacation would impair the efficiency of the
department or division."
Subsection 2(a), of course, contains the subject-language of this
grievance that appears
to allow employes to use accumulated compensatory time to lengthen a vacation period by
day at the front and one day at the back of such vacation. 2/
2/ Subsection 3 requires the department to establish a vacation
selection procedure so that all deputies may be
informed of the approved vacation request by March 1 of each year; Subsection 4 indicates
that vacation picks will
be made within classification in division and within current shift assignment on the basis of
seniority and further identifies the three shifts.
I find no contrary intention expressed in any other part of the
labor agreement. On the
contrary, the agreement firmly expresses the view that employes are entitled to annual paid
vacations of specified lengths. Moreover, while the length of the vacation periods to which
employes are entitled vary according to the individual employe's length of service, it is clear
vacation length is a mandatory subject of bargaining. The product of this bargaining appears
in the labor agreement. With one limited exception, vacation length has not been specifically
subjected to any discretionary review by the sheriff.
While that exception permits an employe entitled to 120 hours
or more of annual vacation
to split a vacation week, it specifically grants the sheriff the right to deny a request to split a
vacation week when the sheriff determines that granting such request would impair the
of the department or division. No similar reservation of discretion is listed with respect to
accumulated compensatory time claimed as vacation time.
The County, however, argues that sec. 3.02(4) of the parties'
management's authority to approve or deny any employe's request for accumulated
time-off. That section provides that " . . . compensatory time may be liquidated only with
consent of the department head and if the County determines the staffing to be adequate and
no overtime will result . . ."
But the County's argument mingles apples with oranges. In the
context of sec. 3.02(4),
an employe's request to use compensatory time (120 hours of which can be accumulated) is
clearly subject to a discretionary review by management.
But sec. 3.14(2)(a) deals with vacation time, not compensatory
time. Once an employe
opts for the permitted vacation time extension, the accumulated compensatory time necessary
claim the extension is, in effect, converted to vacation time. Without this conversion the
extension entitlement would be an empty reward simply a continuation of the status
quo - for
no employe could prudently make any timely vacation commitment with any degree of
that he or she would be allowed to enjoy it. Presumably, this is the kind of situation the sec.
3.14(2)(a) language was designed to correct.
The County correctly notes that Sec. 1.02 reserves to the
County the right to determine the
work force necessary to carry out the department's mission. The same section further
management's right to maintain efficiency of operations by determining the method, the
and the personnel by which such operations are conducted and to take whatever actions are
reasonable and necessary to carry out the duties of the various departments and divisions.
However, careful review of this language reveals no
inconsistency between management's
exercise of the rights enumerated therein and the entitlement of employes to use accumulated
compensatory time to extend their annual vacations as set forth in sec. 3.14. No argument
been made that entitlement to vacation leave currently prevents management from continuing
to determine how many deputies it needs to run its jail division or the personnel necessary.
it does not. Under this circumstance it is difficult to understand how a legitimate entitlement
transformed into an intrusive destroyer of management rights by a vacation improvement of
two days per vacation period.
Vacation entitlement or none, two-day enhancements or none,
management still has the
right to determine how many deputies it needs for a given shift in a given division and to
the personnel assignments it deems appropriate. Thus while management may deem an
additional two-day vacation entitlement as more costly or less efficient, management can still
continue to exercise its management rights. Given the absence of any restrictive or
language with respect to this entitlement, if cost (overtime) or
efficiency (adequate staffing) is a
spin-off issue, it is one to be resolved at the bargaining table. 3/
As was apparently done, for instance, when the parties agreed to reserve for the sheriff the
right to deny deputies'
requests for splitting a vacation week when the sheriff believed that granting the request
would impair department
or division efficiency.
The County posits that the Association's grievance seeks " . . .
to dictate to the sheriff who
works in the jail." I do not agree.
As the County points out, a collective bargaining agreement
cannot limit a sheriff's
powers derived from the Wisconsin Constitution. Undeniably, one of the sheriff's
mandated duties is custody of the common jail. State ex rel. Kennedy v. Brunst, 26 Wis.
414 (1870). Contrary to the view suggested by the County, however, I do not perceive the
issue as rising to constitutional proportions. I find nothing in sec. 3.14(2)(a) that impedes
sheriff in his custody of the common jail and of the prisoners therein. Increasing vacation
entitlement of employes assigned to the jail may increase the cost of operating the jail; it
most decidedly, "dictate to the sheriff who works in the jail."
Both parties agree the contract language is clear and
unambiguous. I concur. Based on
the specific language of sec. 3.14(2)(a) of the parties' agreement as well as the agreement as
whole, the grievance of the Association must be sustained. In my opinion, the contract
entitles employes to exercise the option of extending their respective annual vacations by
one day of accumulated compensatory time to both the beginning and the end of the vacation
period. Such entitlement is not subject to the approval, denial, or other action by the sheriff
(except as to an employe's request to split a vacation week and the administration of the
The Association seeks no remedy beyond an arbitral declaration
of whether sec. 3.14(2)(a)
constitutes an employe entitlement. The vacation periods that the Grievant sought to extend
passed by several months. The record does not reveal whether Grievant ever received the
additional vacation time he requested. 4/
4/ If Deputy Coughlin was ultimately denied his right to extend his
vacation as set forth in sec. 3.14(2)(a), inasmuch
as a new vacation year has now commenced it appears virtually impossible to "make Deputy
Coughlin whole" as
to the four days he requested but did not receive. Presumably, those days still exist as
time from which Coughlin may garner some future benefit. No monetary loss to Coughlin
was alleged to have
The Employer, Milwaukee County, shall comply with the express terms of sec.
the parties' labor agreement, and shall grant employe requests to extend their respective
times by adding one day of compensatory time at the front and one day at the back of their
vacation, without any discretionary review for approval or denial of any such requested
extensions, except those restrictions applicable to the scheduling of vacation as noted above.
Dated in Madison, Wisconsin this 16th day of February, 1999.
A. Henry Hempe, Arbitrator