BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LANGLADE COUNTY (HIGHWAY
LOCAL 36, AFSCME, AFL-CIO
Ruder, Ware & Michler, S.C., by Attorney Jeffrey T. Jones,
Suite 700, 500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on
behalf of the Employer.
AFSCME, Wisconsin Council 40, AFL-CIO, by Mr. David
Campshure, 1566 Lynwood Lane, Green Bay, Wisconsin 54311, appearing on
behalf of the Union.
Langlade County, hereinafter referred to as the Employer or the County, and Local
AFSCME, AFL-CIO, hereinafter referred to as the Union, are parties to a collective
agreement which provides for final and binding arbitration of grievances arising thereunder.
Union made a request, with the County concurring, that the Wisconsin Employment
Commission designate a Commissioner or member of its staff to hear and decide a grievance
the Union. The undersigned was so designated. The hearing was transcribed, the parties
filed post-hearing briefs, and the record was closed on December 23, 1998.
This case was one of three involving the same parties, all heard on the same date
same arbitrator. (See Stipulation, below)
The parties agree that the issue be stated as follows: (d)id the County violate the
collective bargaining agreement when it refused to pay the grievant call-in pay on (for)
1998? If so, what is the appropriate remedy?
ARTICLE 4 MANAGEMENT RIGHTS
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
but are not limited to the follow:
To direct all operations of the County.
To establish reasonable work rules
and schedules of work, in accordance with the terms of the
* * *
ARTICLE 7 GRIEVANCE
A. Definition: Any difference or
which may arise between the Employer and
the employee, or the Employer and the Union shall be handled as follows:
* * *
* * *
3. Arbitration Procedures: The arbitrator selected
or appointed shall meet with the parties at
a mutually agreeable time to review the evidence and hear testimony relating to the
completion of this review and hearing, the arbitrator shall render a written decision to both
County and the Union, which shall be final and binding on both parties. The arbitrator shall
modify, add to or delete from the expressed terms of the Agreement.
* * *
ARTICLE 13 HOURS OF WORK AND
The employees in the Highway Department shall work eight (8)
hours per day, Monday through
Friday, forty (40) hours per week.
The hours of work shall be 7:00 a.m. to
12:00 noon, and 12:30 p.m. to 3:30 p.m. Monday
through Friday. Employees starting work at 7:00 a.m. shall work until 3:30 p.m.
* * *
ARTICLE 14 CALL-IN
Any employee called back into work outside of his/her
scheduled hours of work shall receive
one (1) hour of pay at his/her straight time rate in addition to the pay for the actual hours
The parties stipulated as follows: Testimonies provided in the three hearings
August 27, 1998 (Case 79, No 56613, MA-10351; Case 80, No. 56614, MA-10352; and
No 56615, MA-10353) are included in the record of all three hearings.
On March 18, 1998, the grievant, Bill Majest, an employee of the Langlade Highway
Department was either on vacation or personal holiday leave. On the afternoon of that date
before 3:00 p.m. the Highway Commissioner placed a telephone call to the Majest residence
him that snowplowing duties for the following day were scheduled to begin at 4:00 a.m.
the normal starting time of 7:00 a.m. The Commissioner described his call to the Majest
as a "courtesy call." The Commissioner acknowledged that he did not speak with Mr.
instead left a message with either Mr. Majest's mother or mother-in-law to relay to Mr.
message was for Mr. Majest to come in the following day at 4:00 a.m. to plow snow.
Mr. Majest did report in the following morning at 4:00 a.m. The Commissioner
denied his claim for call-in pay.
At the Langlade Highway Department one method of notifying employees to come in
the following day for snowplowing duties is to post a notice in a conspicuous place in the
Shop sometime prior to the normal daily quit time of 3:30 p.m. However, in the event
are not notified at the work site to come in early the next day, they are notified by telephone.
In the event telephone notice to come into work early is given on a Saturday or
Sunday, call-in pay is authorized without question. It is also the practice to authorize call-in
pay in the event the
telephone notice to report early the following day is given after 3:30 p.m. (outside scheduled
of work) on the previous day.
In the instant case, however, the Commissioner based his denial on the fact that
prior to 3:00 p.m.
(i.e. within the scheduled hours of work) he notified a
responsible relative in the Majest household
to relay to Majest the Commissioner's message. The Commissioner also indicated that if his
the Majest household had taken place even one minute after the close of normal hours of
p.m.) he would have granted the requested call-in pay to the grievant.
The Commissioner described one similar instance where a bargaining unit member
telephoned to report to work early the following day: no call-in pay was awarded, and no
was filed. It is unclear, however, whether that employee ever made a claim for call-in pay.
testimony it is also unclear under which contract term this instance took place, although the
term seems the most likely candidate.
On the day of the hearing the grievant was unavailable to testify.
POSITIONS OF THE PARTIES
From the Union's perspective this case is simple. It sees Article 14 as entitling an
to call-in pay (one hour of straight-time pay in addition to payment for actual hours worked)
criteria are met: 1) the employee must be called into work; 2) the reporting time specified by
the call-in must be outside the employee's scheduled hours of work.
The Union excepts from entitlement to call-in pay any employee who, prior to
Highway Shop at the end of the workday, is directed to report to work the following day at
time than the regular starting time.
The Union believes the grievant in this case successfully meets the two-pronged
The Union notes that Highway Department management called grievant's home on
1998, directing that the grievant report to work the following day at 4:00 a.m., some three
before the regular starting time of 7:00 a.m.
The Union believes the contract language as to call-in pay is clear and unambiguous.
Union cites both hornbook and case law as indicating no need for contract interpretation
agreement is ambiguous. That, in the Union's opinion, should be dispositive of the instant
The Union finds irrelevant the actual time the telephone call-in directive to the
home was made. The Union argues that Article 14 does not contain any limitation as to the
day at which employees must be called to qualify them for call-in pay, and accuses the
attempting to rewrite contract language. According to the Union, the County is attempting to
the words "after 3:30 p.m." into Article 14 so the Article would read:
"Any employee called, after
3:30 p.m. back to work outside of his/her scheduled hours of work shall receive
one (1) hours of pay
at his/her straight time rate in addition to the pay for the actual hours worked."
The Union disbelieves the County's contention that an employee who receives a
directive prior to 3:30 p.m. is not entitled to call-in pay. That, says the Union, is contrary
the plain language of the Agreement. The Union asserts that the employees who
on March 18, 1998 were not entitled to call-in pay for reporting early the next day
because they were not called to report, but were notified before
the end of the workday. Hence, says
the Union, these employees do not meet the criteria for call-in pay.
The Union cites a 1997 arbitration award by Arbitrator Karen Mawhinney as offering
for its current position. Langlade County (Highway Department), Dec. No. 54959 (WERC:
Mawhinney, 9/97). In that case Arbitrator Mawhinney had concluded that employees on
who reported to work in response to a call-in were entitled to call-in pay, even though they
directed to report at what would have been their normal starting time of 7:00 a.m. had they
The Employer begins by recounting the history of the call-in pay provision. The
Collective Bargaining Agreement between the parties provided that employees called back
after their regular scheduled hours were to be paid no less than two hours pay or the pay for
actual hours worked, whichever was greater. This was modified in negotiations for a
successor 1995-97 Collective Bargaining Agreement to provide that employees called back
into work outside of their
scheduled hours of work would receive one hour of straight-time pay in
addition to the pay for the
hours actually worked.
The County believes this change resulted in a greater benefit to the employees.
The County notes that while weekday hours of work normally begin at 7:00 a.m., the
may alter the work schedule for snowplowing purposes. It does so by posting a notice in the
Highway Shop directing employees to report the following day at an earlier time than the
a.m. starting time. Employees so notified are not contractually entitled to call-in pay, nor
Union ever claimed otherwise, according to the County.
The County next notes that during the 1996-97 snow season such a notice was posted
Highway Shop. The County continues that on that occasion a highway department employee
was on paid leave on the date the notice was posted was telephoned prior to the end of that
day and also directed to report the following day at the time specified in the posted notice.
to the County, that employee did so report; that employee claimed no call-in pay; neither did
employee receive call-in pay.
The County asserts that a meeting between County and Union officials on April 2,
resulted in the Union's agreement that the County could change the employees' normal
with advance notice, including scheduling employees to report to work earlier than usual.
The County contends that the Union's claim for call-in pay in the instant matter is
The County believes it is vested with a contractual right to temporarily alter the
normal daily work hours. This being so, the County posits, the grievant is not entitled to
pay for March 19, 1998 since he had been given advance notice of the new starting time.
The County cites hornbook law to support its view that many arbitrators have
except as restricted by the agreement between the parties the right to schedule work remains
management. The County argues that no provision within the Collective Bargaining
specifically and expressly prohibits it from temporarily altering the employees' daily work
The County pursues this point further. Because a provision of the Agreement states
employees starting work at 7:00 a.m. are to work until 3:30 p.m., the County sees an
. . that different starting times and work schedules, at least on a temporary basis, may be
The County argues that such a conclusion is buttressed by the call-in provision of Article 14.
article, says the County, addresses situations in which employees may be required to report
at times other than their normal work hours.
Furthermore, continues the County, the Management Rights provisions of Article 4
County with the right to temporarily alter the employees' normal work schedule, a right the
believes the Union has recognized.
Thus, avers the County, because the County has the contractual right to temporarily
employees' daily work hours and because the grievant received ample notice of that change,
grievant is not entitled to call-in pay.
The County expands on the latter point. Citing both arbitral law and hornbook
County contends that arbitrators have long recognized that call-in pay is only appropriate
employee's off-duty time has been disrupted by a recall to work without notice.
Portage County (Sheriff's Department), Case 87, No. 45708, MA-6718 (WERC:
Engman, 2/92) is one of the cases cited by the County in support of this argument. The
Arbitrator Engman dismissed grievances asking for call-in pay where he found that the
involved did not unexpectedly have to stop what they were doing or to change plans
because of these arrangements.
In the instant case, argues the County, a notice was posted in the workplace on
1998 before the end of the normal workday. The notice advised employees of the change in
work hours the following day. This was consistent with the Department's practice. At or
p.m. on March 18, 1998, the County continues, the Highway Commissioner also left a
the grievant's mother or mother-in-law to the same effect.
Thus, the County concludes that the grievant is not entitled to call-in pay because: 1)
grievant had more than 12 hours notice that he was to report three hours early the following
since he was due to return to work the following day his off-duty time was not disrupted,
3) he was
not inconvenienced by an unplanned trip to work, and 4) since he didn't work on March 18
not "recalled" within the meaning of arbitral law.
The County again notes the previous similar instance that occurred in 1996-97 snow
where call-in pay was neither requested nor given, and claims the instance shows that the
also recognized that employees are not entitled to call-in pay under those circumstances.
The County next cites hornbook law as well as arbitral and Wisconsin Supreme Court
law in support of the proposition that an arbitrator lacks authority to disregard or modify
unambiguous contract language. Moreover, the County adds, in the instant case Article 7 of
parties' collective bargaining agreement specifically prohibits the arbitrator from modifying,
to or deleting from said agreement.
The County then argues that the grievant is not entitled to call-in pay because the
Article 14 of the parties' collective bargaining agreement are quite clear. The County recites
Article: "Any employee called back into work outside his/her scheduled hours
of work shall receive
one (1) hour of pay at his/her straight time rate in addition to the pay for the actual hours
(Emphasis by the County)
In the instant matter, says the County, it was impossible to call the grievant "back"
outside of his scheduled hours of work because he had not been at work at all on March 18,
Instead, County merely changed the grievant's hours of work for March 19, 1998. Since the
had every right to do so and the grievant received advance notice of the change, the grievant
entitled to call-in pay.
In summary, the County states the grievance should be dismissed because: 1) the
the contractual right to temporarily alter the daily work hours of the employees in the
Department; 2) on March 18, 1998 the Highway Commissioner changed the daily work
hours for the
following work day; 3) the grievant was scheduled to work on March 19, 1998; 4) the
received more than 12 hours advance notice of the change in his work hours; 5) the grievant
inconvenienced to the degree that he is entitled to call-in pay; 6) there is no evidence the
inconvenienced at all; 7) the grievant was not "called back" into work within the meaning of
The Union notes that as to the alleged similar occurrence in which call-in pay was
cannot file a grievance on matters of which it is unaware.
The Union finds the County's claim that it has the contractual right to temporarily
employees' hours of work to be exaggerated. The Union agrees that the County can call
into work before the normal 7:00 a.m. starting time, but does not believe that right includes
the workday before 3:30 p.m., even if employees have worked eight hours.
The Union believes that the County's reliance on the Portage County (Sheriff's
Department) arbitration award is misplaced. The Union believes the facts of Portage County
(Sheriff's Department)are easily distinguishable from the facts of the instant
matter. The Union
notes that Arbitrator Mawhinney rejected both sides' attempts to cite that case on the grounds
Portage County involved employees who had signed up for overtime assignment in advance
asked for call-in pay. Langlade County (Highway Department), Dec. No. 54959 (WERC:
In the instant matter, says the Union, the grievant did not sign up for overtime in
The Union also attacks the County's view that the grievant is not entitled to call-in
because he received more than 12 hours notice and was therefore not inconvenienced. The
points out that Article 14 does not state that call-in pay will not be granted if a certain
hours of advance notice is given. It simply states that employees who report to work outside
scheduled hours in response to a call from management are entitled to call-in pay. To
number of hours in advance of the new starting time the employee was notified of it would
to the terms of the agreement, in the Union's opinion.
The Union also takes issue with the County's emphasis on the word "back" as that
appears in Article 14. The Union cites the Mawhinney Award as
undermining that view.
The Union believes that all of the necessary criteria for call-in pay have been met in
The County does not follow the Union's logic as to why the grievant is entitled to
as distinguished from the employees at work on March 18, 1998 who are not. It does not
according to the County, to say that employees who were at work on March 18, 1998 and
notice before the end of the workday to report in early the next day are not entitled to call-in
that the grievant, who was advised of the same information by telephone is entitled to it.
The County argues that the contract language cannot address all situations. In
of this, says the County, arbitrators interpret and apply the language based on the
The County claims that under the Union's reasoning the County could avoid paying
pay to employees by notifying them of a call-in by a hand-delivered note at home, personal
notification at home, or an e-mail message by computer. The County does not believe the
intended such a result when they agreed to the Article 14 language.
The County notes the Union's statement that Article 14 does not contain any
limitation as to
the time of day at which employees must be called for them to be entitled to call-in pay.
However, says the County, call-in pay is intended to compensate employees for the
inconvenience of being required to report to work immediately with little or no notice. The
does not view the circumstances on March 18, 1998 as constituting a call-in entitlement by
grievant within the meaning of Article 14 and arbitral law. Moreover, adds the County, the
was given more than 12 hours of advance notice of the earlier report time; he did not have to
doing what he was doing and report to work. There is no evidence that the grievant had to
his plans or was inconvenienced in any way, according to the County.
The County does not believe that Arbitrator Mawhinney's prior award is of any
this matter. The County distinguishes the Mawhinney facts from those of
the instant case on the basis
that in Mawhinney the eight employees who were called-in to work (from
their vacations or personal
holidays) were clearly inconvenienced. The grievant in this matter was not inconvenienced
In summary, the County asserts that the Union's claims are without merit and its
Arbitrator Mawhinney's prior award is misplaced. The County does not believe that the
circumstances pertaining to the grievant's notification amount to a call-in situation and
grievant is not entitled to call-in pay.
The parties assert that the Article 14 call-in language is clear and unambiguous.
Notwithstanding this agreement in principle, they are unable to agree on how it
applied in all cases. Though each believes the language to be clear, each would apply the
differently in certain situations.
Article 14 provides for call-in pay:
Any employee called back into work outside of his/her scheduled
hours of work shall receive one
(1) hour of pay at his/her straight time rate in addition to the pay for the actual hours
The County and the Union have reached an accommodation as
to at least one method through
which the County is permitted to change its next-day starting workday hours for on-duty
without being liable for call-in pay. They have agreed that if the County
posts a written notification to its employees at the work site requiring them to appear
the next day
at any earlier start time than normal there will be no call-in pay liability to the County.
However, the parties have reached no interpretive accommodation with respect to
off-duty employees of changes in next-day starting times. That, of course, is the impetus for
instant case, for the grievant herein was off-duty and unable to read the written notification
by the Highway Department management as to the next day's early start time.
The County believes the accommodation between the parties as to its on-duty
should logically extend to its off-duty employees. Specifically, the County believes that if it
notification to off-duty employees of an earlier next-day start time by 3:30 p.m., there should
call-in pay liability under Article 14. The Highway Commissioner also expressed the view
that if the
employee receives that notification as to an earlier next-day start time even one minute after
the County is liable for call-in pay to that employee.
The Union, on the other hand, believes that the language of Article 14 should be
implemented. Under the Union's interpretation any off-duty employee who is notified of an
next-day start time is necessarily being called back to work outside scheduled
hours of work and is,
therefore entitled to call-in pay.
Neither interpretation is entirely satisfactory. The County's view does not include an
explanation of what happens if the County is unable to personally reach the off-duty
telephone or otherwise by 3:30 p.m. The Union's view gives inadequate credence to the fact
existing accommodation between the parties as to on-duty employees is not a literal
of Article 14 language.
Under the circumstances, I choose not to express a preference for either
Ultimately that will be a matter for the parties to work out between themselves in collective
bargaining. That does not mean I choose not to resolve the immediate dispute.
For even if the County's interpretation were to be adopted by the parties, it seems to
the Union prevails in this instance.
The record shows that on March 18, 1998, the Highway Commissioner placed a
call to the grievant's house at or before 3:00 p.m. and asked the grievant's mother or
to relay a work call-in to him. The Commissioner acknowledges that he did not speak
directly to the
grievant. (I note, incidentally, that the County would have encountered a similar situation if
grievant's telephone had been answered by an answering service, answering machine, voice
e-mail instead of a mother-in-law or mother. In all of these examples the County cannot
attest to the
time the grievant was actually notified of the change in starting time for the next day's work
Notwithstanding the apparent good faith of the Commissioner, in my view his failure
or communicate directly with the grievant prior to 3:30 p.m. (or delegate that task to a
is fatal to the County's case. The collective bargaining agreement of the parties does not
grievant or any other member of the bargaining unit to remain in touch or "on-call" with the
Department during off-duty hours.
Certainly it is possible the grievant received the Commissioner's message almost
It is equally possible that the grievant failed to receive the message until much later that
Under the latter circumstances, it seems clear that the grievant would be entitled to call-in
pay for all
of the classic reasons associated with call-in pay enumerated by the County in its brief (e.g.,
disruption of off-duty hours on short notice).
It is, of course, the County that normally seeks an earlier start time of work hours,
during the snowplowing season. Under that circumstance and in the absence of any
obligation on the part of bargaining unit employees to remain "on-call" during off-duty hours
reasonable to require that the County communicate directly with the off-duty employees if it
to avoid call-in pay liability. Leaving messages with even well-meaning relatives is not
a reliable means of communication; even if the message is delivered, the time of delivery
be potentially problematic. As previously noted the same problem exists with respect to
left with an answering service, answering machine, voice mail, or e-mail.
Certainly, in the instant case the grievant ultimately received the message; absent
testimony from the grievant or a credible third party, however, there is no way to determine
the message was received by the grievant. The record is barren of such testimony. In my
omission is fatal to the County's case in the instant matter.
Based on the foregoing, in my opinion the County violated the parties' collective
agreement when it refused to pay the grievant call-in pay on (for) March 19, 1998.
The grievance is sustained. The County is directed to make the grievant whole by
one hour of pay at his straight (1998) rate.
Dated at Madison, Wisconsin this 17th day of March, 1999.
Henry Hempe, Arbitrator