BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NICOLET HIGH SCHOOL DISTRICT (Glendale,
NORTHSHORE EDUCATIONAL SUPPORT
PERSONNEL ASSOCIATION NICOLET
(Rosa Cyrier overtime pay grievance dated October 6, 1997)
Mr. Patrick A. Connolly, Executive Director, North Shore
United Educators, appearing on
behalf of the Association and Grievant.
Quarles & Brady LLP, by Attorney Carmella A. Huser,
appearing on behalf of the District.
At the joint request of the parties, the Wisconsin Employment Relations Commission
the undersigned Marshall L. Gratz as arbitrator to hear and decide a dispute concerning the
above-noted grievance under what subsequently became the parties' 1997-99 Agreement
entered into by them on June 9, 1998.
Pursuant to notice, the grievance dispute was heard at Nicolet High School on
July 28, 1998.
The proceedings were transcribed. The parties' post-hearing briefs were exchanged on
1998, and reply briefs were exchanged on November 25, 1998, marking the close of the
At the hearing the parties authorized the arbitrator to decide the following issues:
1. Did the District violate the Collective Bargaining Agreement
by failing to pay overtime to Rosa Cyrier for the
period August 18 through August 29, 1997?
2. If so, what is the appropriate remedy?
ARTICLE 12 - Conditions of Employment
. . .
12.3 Overtime - Overtime will be paid for time worked in excess
of 40 hours per week. Overtime
must be requested by the employee or supervisor and approved by the District Administrator
designee in advance of any overtime worked. Approved overtime will be paid at the rate of
one-half (1-1/2) times the regular hourly rate.
. . .
ARTICLE 15 - Leaves
. . .
15.3 Funeral Leave - All employees shall be entitled to, but not
to exceed, five (5) days personal absence with no
deduction in pay, for death in the immediate family. Immediate family is defined to include .
. . . Each day's absence
for death in the immediate family shall be deducted from the employee's accumulated sick
leave. Notice of intended
absence must have been given to the District Administrator, or designee, prior to such
absence. . . .
The District is a public school district which operates Nicolet High School serving
suburban communities north of Milwaukee, Wisconsin. The Association and District have
parties to collective bargaining agreements covering certain non-professional school personnel
1993. The Grievant, Rosa Cyrier, has been employed by the District since 1983, and has
secretary in the Guidance Department for 10 years.
The incident giving rise to this dispute is not factually disputed. The dispute is
summarized in the parties' initial written grievance and answer, below.
The October 6, 1997, written grievance giving rise to this proceeding was contained
memorandum from Association Negotiations/Grievance Coordinator Beth Ludeman to
Administrator Elliott L. Moser. That grievance reads in pertinent part as follows:
Re: Overtime Pay for Rosa Cyrier
. . .
The week in question is August 18-22,
1997. The Association's position is that Ms. Cyrier is due overtime pay
(at the rate of 1.5 times her regular hourly rate) as stated in the contract in Article 12.3, for
9.5 hours between August
21 and 22, 1997. Ms. Cyrier had obtained prior approval to work overtime during that week
due to registration
activities. As of August 21, Ms. Cyrier's hours exceed 40. Included in that is time she used
as funeral leave.
According to Article 15.3, "All employees shall be entitled to, but not to exceed, 5
days personal absence with no
deduction in pay (my emphasis), for the death in the immediate family." Ms.
Cyrier used only five hours for the
necessary funeral leave that week, and it is the Association's contention that "no deduction in
pay" means just that: Ms.
Cyrier should be compensated at the same rate for the funeral leave as she would have been
had she been able to be
on the job.
. . .
The District Administrator's October 7, 1997, letter response to Ludeman reads, in
pertinent part, as follows:
On October 6, 1977, I received a grievance letter from you
concerning overtime pay for Rosa Cyrier. . . .
This grievance should not proceed because
the payment of overtime wages is dictated by federal and state law.
Wisconsin law and the Federal Fair Labor Standards Act require employers to pay employees
time and one-half for
"hours worked" in excess of 40 hours per week. Article 12.3 of the Collective Bargaining
Agreement reflects the
requirement of those laws. Although, in the current negotiations for a new Agreement, the
Association has a proposal
to require the District to pay overtime wages in excess of what is required by law, there
currently is no such provision
in the Agreement.
Article 15.3 is not relevant in terms of the
payment of overtime wages. Article 15.3 provides only that employees
are entitled to pay for funeral leave. Such paid time off, however, does not constitute "time
worked" under state and
Ms. Cyrier will be paid for five hours of
funeral leave and for the overtime she worked during the week of August
18-22, 1997. The amount of overtime paid, however, will be limited to the actual hours
worked in excess of 40 hours.
The five hours in which Ms. Cyrier was absent from the District for funeral leave will not be
credited as "time worked"
for overtime pay purposes.
. . .
The grievance arose between the nominal June 30, 1997 termination date of their
1995-97 agreement and the
June 1, 1998 execution date of their 1997-99 agreement, such that the parties were engaged
in bargaining about the
successor agreement when the instant grievance arose and the above grievance and answer
The dispute was ultimately submitted for arbitration as noted above. At the hearing,
the Union presented
testimony from Grievant Rosa Cyrier and Payroll Clerk Sharel McVeigh. The District
offered testimony from Moeser
and Director of Business Services Jeff Dellutri.
Additional factual background is set forth in the positions of the parties and in the
POSITIONS OF THE PARTIES
The District violated both Agreement Secs. 12.3 and 15.3 by not counting
Grievant's five hours of funeral leave
toward the 40 hour weekly overtime threshold. Doing so violated Sec. 15.3 because it
amounted to a deduction in
Grievant's pay relative to what she would have been paid had she worked rather than taken
leave. It also violated Sec.
12.3 because it was inconsistent with the parties' established past practice of counting
compensated leave time as "time
worked" under Sec. 12.3.
When the parties negotiated their initial agreement covering 1993-95, the overtime
and funeral leave language
in 12.3 and 15.3, respectively was drawn with non-material changes from the District's
unilaterally drafted and
administered Handbook. Sharel McVeigh, the District payroll clerk since 1986, testified that
she consistently included
paid leave for funerals, sickness, snow days, etc. as hours worked when computing overtime.
Although Ms. McVeigh
has been a member of the bargaining unit since about 1996, she was outside the bargaining
unit prior to that time. At
all times, however, as the District's payroll clerk, she has been under the direct supervision
of the District's business
managers who in various ways reviewed and at times signed off on employe time sheets.
She has worked for four
different managers during her tenure, including the incumbent, Jeff Dellutri. According to
McVeigh, prior to 1997,
McVeigh's inclusion of paid leave in computing hours worked for overtime compensation
purposes was never
questioned. McVeigh only changed from her prior practice
when Moeser directed in early July of 1997 that the "Regular Hours Worked" category
unit employes' time sheets "did not include time off for your unpaid lunch period" because
category "includes only time actually worked each day and time off taken for authorized
during the day." McVeigh took that directive to mean that she was to count only hours
worked as "time worked" in determining the overtime eligibility of support unit employes.
The summary of overtime calculations prepared by McVeigh at the direction of the
supports her testimony regarding past practice. It shows that with one inconsequential
exception, there was a clearly
established pattern of counting compensated leave as time worked for support unit employes
purposes from November 1994 until August 1997. Indeed, several employe time sheets in
evidence were signed and
dated by the District Administrator himself, confirming both the existence of the practice and
Moeser's knowledge of
The District improperly asks the Arbitrator to interpret Sec. 12.3 in isolation,
whereas the Agreement is properly
to be interpreted as a whole. It was the District, not the Association that has for many years
interpreted the language
of 12.3 as the Association proposes it be interpreted in this case. McVeigh's position did not
become a part of the
bargaining unit from the beginning of the collective bargaining relationship, but only
sometime in the third year of
that relationship. Citing tr. 68. Thus, for about ten of the eleven years prior to the instant
grievance being filed,
McVeigh's payroll clerk position was not in the bargaining unit. It is not reasonable to
believe that the District's
business managers and the District Administrator were unaware of how McVeigh was
calculating support employes'
overtime. Even if that were so, District management was responsible for the way the
District calculated overtime under
the Agreement since 1993 and under the Handbook prior to that time, whether they actually
had knowledge of it or
The Association has a right to expect that a language interpretation in place for
many years will mean what it
has always meant. Citing Coca-Cola Bottling Co., 9 LA 197, 198 (Jacobs, 1947) ("A
is far more than words on paper. It is also all the oral understandings, interpretations and
mutually acceptable habits
of action which have grown up around it over the course of time. . . ."); and Esso Standard
Oil Co., 16 LA 73, 74
(McCoy, 1951) ("Where the Company has always done a certain thing, and the matter is so
well understood and taken
for granted that it may be said that the contract was entered into upon the assumption that
that customary action would
continue to be taken, such customary action may be an implied term.") There is nothing in
the labor standards laws
referred to by the District that precludes the parties from interpreting the Agreement as it has
been interpreted for many
The District's contention that the Association did not know of the past practice is
Clearly the employes were fully aware of how paid leaves were treated for purposes of
That is why the instant grievance was filed. The Grievant herself
testified that she considered not being paid for overtime as a consequence of taking
amounted to a deduction in pay violative of Agreement Sec. 15.3 and that she believed such
deduction was a change from the way the District had calculated her overtime pay in the
past practice evidence adduced in this case directly supports the interpretations of both Secs.
and 15.3 which the Association set forth in its written grievance.
The bargaining history supports the Association's proposed interpretations of the
as well. The Association's proposal on overtime was essentially to change the threshold for
from forty hours per week to eight hours per day. The parties never discussed how
leaves were to be treated in conjunction with overtime pay. The parties left the status quo
of Secs. 12.3 and 15.3 unchanged. The status quo was that compensated leaves such as
leaves were treated as regular hours worked for purposes of computing overtime just as they
been for at least the preceding 12 years.
For the stated reasons the grievance should be sustained. By way of remedy, the
Arbitrator should order the
District to pay Rosa Cyrier the amount of 28.80 in overtime pay. In addition, the Arbitrator
should "order the District
to pay overtime to other bargaining unit members who have been similarly affected since
August 18, 1997 by not
having compensated leaves credited toward regular hours for purposes of calculating
overtime, specifically with respect
to funeral leaves, vacations, holidays, sick leaves and snow days to which they are entitled
under the [Agreement]."
Agreement Sec. 15.3 does not amend the clear and unambiguous language of Sec.
that employes are paid overtime only for time worked in excess of 40 hours per week.
The Association's past practice claim must be rejected because the language of
Sec. 12.3 is
clear. It is a well-settled arbitral principle of contract interpretation that past practice is not
used to interpret language which is clear and unambiguous. Citing published awards.
Even if the language in Sec. 12.3 were ambiguous, the Association has failed to
prove the existence of a binding
practice in this case. To be binding, a practice must be unequivocal, clearly enunciated and
acted upon and readily
ascertainable over a reasonable period of time as a fixed, and established practice accepted
by both parties. Citing,
Elkouri & Elkouri, How Arbitration Works, 632 (5 ed. 1997) and
published awards cited therein.
The Association's past practice theory rests primarily on the equivocal testimony of,
flawed summary prepared by McVeigh, a member of the bargaining unit. The District does
dispute that McVeigh erroneously calculated paid time worked for overtime purposes on
occasions over the years. However, the evidence reveals inconsistencies in the
manner in which she did those calculations. Furthermore, the evidence is clear that
Association nor the District knew what she had been doing until the Association filed for
in this matter many months into the processing of the grievance.
Both Moeser and Dellutri gave sworn testimony that they did not realize how
bargaining unit member, was calculating overtime. Both relied on McVeigh's experience in
calculating payroll and clearly did not second-guess her method of calculating overtime.
reliance may have been an administrative oversight, it is not evidence of a knowing and
accepted past practice.
The Association did not know how McVeigh was calculating overtime either. That
is why the
Association did not mention the alleged past practice in the written grievance, at any
in the grievance procedure, during the parties' first contract negotiations when the former
funeral leave and overtime language was agreed upon with certain changes, or during the
negotiations throughout which the Association unsuccessfully proposed to broadly amend Sec.
to eliminate the phrase "time worked" from the overtime language. The Association's lack of
knowledge of the alleged binding practice is also evidenced by the Association's failure to
Moeser's in July 2 and September 2, 1997, memoranda regarding unpaid lunch time
McVeigh and other bargaining unit employes that in filling out employe time sheets,
Worked' includes only time actually worked each day and time off taken for authorized
the day. . . ."
An ongoing, unnoticed mistake in implementing the contract by a member of the
does not constitute a mutually accepted, binding past practice.
For those reasons, the Association's request that the District pay overtime to
Grievant and to
other bargaining unit members who have not filed grievances regarding the payment of
should be rejected, and the instant grievance should be denied.
As the District argues, the language of Secs. 12.3 and 15.3, taken together, does
not, on its face, provide that
time not worked on funeral leave is properly to be counted toward the "time worked in
excess of 40 hours per week"
requirement for applicability of the 1.5x overtime premium rate. By the plain meaning of
the words, time not worked
while on funeral leave simply cannot be deemed "time worked" for overtime calculation
The statement in Sec. 15.3 that employes eligible for funeral leave are entitled to
take that leave
"with no deduction in pay" assures that employes will be paid for time not worked due to a
contractual funeral leave. It does not persuasively support the further notion that employes
be credited with "time worked" for overtime purposes for funeral leave time not worked. In
Grievant was paid (at her regular hourly rate) for the five hours she was away from work on
The District would have the case analysis end right there in its favor based on the
traditional arbitral principles
reflecting the parol evidence rule: clear agreement language makes resort to evidence beyond
the four corners of the
agreement unnecessary. Many arbitrators, including those whose awards are cited by the
District, would no doubt
reach that conclusion in this case.
However, the Arbitrator finds it appropriate to assess the evidence beyond the four
corners of the agreement in
this case to determine whether and to what extent it may be
appropriate to use past practice to modify or amend the
clear contract language involved in this case.
As noted in a recently-published compendium of arbitral thinking, some arbitrators
recognize a potential fourth
arbitral use of past practice -- besides clarifying ambiguities, fleshing out general provisions
and creating separate
enforceable conditions of employment. Specifically, "[s]ome arbitrators use past practice to
modify or amend clear and
unambiguous contract language." St. Antoine, Theodore, ed., The Common Law of
the Workplace, 81 (BNA, 1998).
The authors offer the following comments related to that observation:
b. Uses of Past Practice. A controversial use of
past practice is to modify clear and unambiguous contractual
language. Arbitrators who refuse to use past practice in this way reason that the written
agreement is the best evidence
of the parties' mutual intent and that, where it is unambiguous, an arbitrator is not permitted
to go beyond the express
bargain of the parties. Moreover, arbitrators who will not use past practice to modify clear
contractual language argue
that there is no reason to rely on past actions of the parties as an interpretive aid because the
meaning of the agreement
is clear from express terms in the labor contract.
Other arbitrators disagree with such a
restrictive approach and use past practice to modify clear and unambiguous
contractual language. They reason that in some instances the initial written agreement is not
necessarily the best
evidence of contractual intent and that the parties' conduct after contract formation may
provide a clearer expression
of their intent. When parties' conduct during the life of an agreement consistently conflicts
with written terms of the
contract, some arbitrators conclude that, in fact, the parties meant to alter their agreement by
substituting what they
actually do for what they said in writing they intended to do. There is no judicial consensus
regarding the propriety
of an arbitrator's using past practice to modify clear and unambiguous contractual language,
and the occasions on
which such conflict arises are rare.
c. Altering a Past Practice.
An established practice that is an enforceable condition of employment, wholly apart
from any basis in the agreement, cannot be unilaterally modified or terminated during the
term of the contract. Either
party may repudiate such a past practice, however, at the time a new agreement
is negotiated, since its continuing existence
depends on the parties' inferred intent to retain existing conditions,
in the absence of any objection. On the other hand, a practice that serves to clarify an
ambiguous provision in the
agreement becomes the definitive interpretation of that term until there is a mutual agreement
on rewriting the contract.
The practice cannot be repudiated unilaterally. Finally a change of conditions that initially
produced the practice may
permit a party to discontinue it. For a full analysis, see Mittenthal, Richard, Past
Practice and the Administration of
Collective Bargaining Agreements, in 14 NAA 30, (1961)
Id. at 82-83.
A pertinent and recent example of an arbitrator's use of past practice to modify
clear and unambiguous
contractual language can be found in Vilas County (Highway), WERC grievance award
MA-9711 (Greco, 1997).
There, without the knowledge of the County's Personnel Committee, the County's Assistant
Bookkeeper had been for
many years consistently including hours of paid leave in determining overtime despite
contract language providing
for payment of the overtime premium "for all hours worked in excess of forty (40) hours per
week or eight (8) hours
per day." While acknowledging that the County's interpretation was supported by clear
language, the arbitrator held
that the County was bound to honor the uniform, longstanding and more generous overtime
calculation practice that
its management had allowed to develop, at least until expiration of the agreement in effect
when the violations
occurred. Arbitrator Greco reasoned that "...Highway Commissioner Fischer knew about
and approved this practice
since Assistant Bookkeeper Krus testified that Fischer 'would look at payroll, yes'. . . Since
Fischer is part of
management, his knowledge is imputed to the County because he acted as the County's agent
and because he was
clothed with apparent authority to do so." In a footnote, arbitrator Greco noted that "The
informed the Union that to whatever extent it may have existed, the County was repudiating
the prior practice at the
expiration of the contract. That latter issue is not before me."
Similarly here, as the Association argues, the record evidence persuasively shows
that for many
years prior to the circumstances giving rise to this grievance, with only a very few
exceptions, overtime payments to the employes in this bargaining unit before and after the
establishment of the Association-District collective bargaining relationship have been
that hours not worked on paid leaves of all kinds (including funeral leave) have been counted
the "time worked in excess of 40 hours per week" for overtime eligibility determinations.
Whether the District Administrator and District Business Managers were aware of
that practice or not, the
Arbitrator finds it appropriate to charge management with knowledge of and acquiescence in
that practice. If the
District's management personnel relied over the years on the District's Payroll Clerk to
interpret and apply the language
of the parties' agreements (and the materially parallel provisions of the Classified Staff
Handbook prior to the
of the parties' first agreement), they were free to choose to do so. However, the
Payroll Clerk has
at all times been an employe under the direction and control of District management
Business Managers and District Administrator have, at all times, been authorized and able
and well-positioned to check the Payroll Clerk's work to make sure that it was being
performed in a manner
consistent with management's understanding of the applicable Handbook and labor contract
provisions. Neither the facts that District management may have chosen to rely on the
nor the fact that the Clerk involved became a member of the bargaining unit in 1995-96, nor
fact that McVeigh became a member of the Association bargaining team shortly thereafter,
sufficient to relieve the District of the consequences of allowing a longstanding, uniform past
to develop as it did in this case.
District management allowed this practice to begin when the District was in a
position to unilaterally draft and
administer the Handbook without the involvement of a collective bargaining representative.
It allowed the practice
to continue through the 1993-95 and 1995-97 agreement rounds of bargaining. Under the
arbitral principles quoted
above, the District could have repudiated the practice during either of those bargains and
forced the Association to
either materially change Sec. 12.3 or live by its terms strictly construed. However, as
discussed further below, until
October of 1997, the District did not do so.
Because the District's longstanding method of calculating overtime was
comparatively favorable to the employes,
it seems reasonable to presume that the Association agreed with the District's historical
pattern of conduct in that
regard before, during and after the parties negotiated their first agreement. The Association
therefore might well have
seen no reason to materially change the Handbook language on the basis of which the District
calculating overtime in a manner that was presumably satisfactory to it and those it
The Association's failure to expressly assert past practice in its grievance and the
related step meetings is too
speculative a basis on which to conclude that the Association was unaware of the practice it
is relying on in this case.
The Association's 1997-99 overtime proposals would have eliminated the "time
worked" language from Sec.
12.3, and hence would have materially changed the meaning of that provision; but it is not
clear that that was the
Association's objective in advancing that language at the outset of the
negotiations. At that point, the Association
might have been seeking to establish for the first time a daily overtime benefit in addition to
weekly, and while they
were at it, the Association may simply have decided to make their language parallel to that of
the custodial unit.
For those reasons, the Arbitrator finds it appropriate to conclude in this case, as
arbitrator Greco did in Vilas
County, that notwithstanding the clear language of contract supporting the District in this
matter, the past practice
evidence is sufficient to bind the District to following the practice it created and followed for
many years unless and
until the practice has been appropriately terminated.
As noted in the quoted principles above, a past practice like this one, which is not
interpretation of ambiguous language, is subject to unilateral repudiation by either party at
a new agreement is being negotiated.
In the Arbitrator's opinion, the District's answer to the instant grievance in early
1997, coming as it did when a new agreement was being negotiated, constituted a notice
to effectively repudiate the practice unless the Association conformed the language of the
to the practice in that round of bargaining. That grievance answer clearly put the
notice that the District was not willing to count paid leave hours as time worked for Sec.
overtime eligibility calculations. Its clear implication was that the District did not intend to
its interpretations of Secs. 12.3 or 15.3 to any past practice that was inconsistent with the
meaning of the language of those sections. (Moeser's earlier July 2 and September 2
were not addressed to the Union and were not so clearly related to overtime calculations as
effectively put the Association on fair notice in that regard.)
Once the District gave the Association that grievance answer, the bargaining table
raised as the Association continued to pursue its proposal to eliminate "time worked" from
By ultimately agreeing to maintain the language of 12.3 unchanged, the Association failed to
step necessary to prevent the District from terminating the past practice and strictly
12.3 and 15.3 as regards all times after the Association Negotiations/Grievance Chair
grievance answer on October 7, 1997.
Therefore, while the Arbitrator finds it appropriate to give the practice effect until
the Association received the
grievance answer on October 7, 1997, the Association's ultimate agreement to the contract
without eliminating "time
worked" from Sec. 12.3, makes it inappropriate to give the practice effect at any time after
the District effectively
repudiated it on that date.
Accordingly, the Arbitrator finds it appropriate to require the District to maintain
through October 7, 1997, but not thereafter. The Arbitrator has therefore granted the relief
on the face of the grievance by ordering that the District pay the Grievant what she would
received had it counted her five hours of funeral leave as time worked for overtime
However, the Arbitrator has denied the further relief requested by the Association in
The further relief requested was for an order requiring the District to recalculate and pay
to other bargaining unit members who have been similarly affected since August 18,
District failure after October 7, 1997, to calculate overtime in accord with past practice
the plain language of the Agreement did not violate the Agreement because the District
effectively repudiated the practice as regards all times after that date. Nothing in the
ISSUES or in the October 6, 1997, grievance giving rise to this arbitration gives the
jurisdiction or remedial authority to remedy other alleged violations of the same type that
occurred during the period August 18 through October 7, 1997. While the outcome in this
would presumably govern any grievance that may be pending regarding such an alleged
during that period, it is beyond the authority accorded to the Arbitrator by the parties in this
issue a remedial order concerning them.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
award of the Arbitrator on
the issues submitted that:
1. The District violated the Collective Bargaining
Agreement by failing to pay overtime to Rosa Cyrier for the
period August 18 through August 29, 1997. However, the District did not
violate the Agreement by failing to pay
overtime to other bargaining unit members who have been similarly affected after October 7,
1997, and the Arbitrator's
jurisdiction in this case does not extend to any other alleged violations of the same type that
may have occurred during
the period August 18 through October 7, 1997.
2. As the remedy for the violation noted in
1, above, the District shall pay Rosa Cyrier the sum of $28.80, less
regular payroll withholding and deductions.
3. The Association's request for
further relief in the form of an order requiring the District to recalculate and pay
overtime to other bargaining unit members who have been similarly affected since August
18, 1997, is denied.
Dated at Shorewood, Wisconsin this 24th day of
Marshall L. Gratz, Arbitrator