BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KENOSHA COUNTY SOCIAL WORK PROFESSIONAL
EMPLOYED IN BROOKSIDE, AGING AND SOCIAL
LOCAL 990, AFSCME, AFL-CIO
Mr. John P. Maglio, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Frank Volpintesta, Corporation Counsel, Kenosha County,
appearing on behalf of the County.
Kenosha County Social Work Professional Employees Employed in Brookside, Aging
Social Services Departments, Local 990, AFSCME, AFL-CIO (herein the Union), and
County (herein the County) were, at all times pertinent hereto, parties to a collective
agreement providing for binding arbitration of certain disputes between the parties. On
1997, the parties filed a request with the Wisconsin Employment Relations Commission to
grievance arbitration and jointly requested Thomas L. Yaeger be appointed arbitrator.
A hearing was
conducted on March 24, 1998 and March 31, 1998. The parties waived post-hearing
briefs and orally
argued at the conclusion of the hearing.
Has the County violated the parties' collective bargaining
agreement by not authorizing Social
Workers to work overtime for pay or comp time except
when court hearings are held outside normal working hours or
when management or the court
requests work be completed outside normal work hours?
If so, what is the appropriate remedy?
ARTICLE I RECOGNITION
. . .
Section 1.2. Management Rights. Except as
otherwise provided in this agreement, the
County retains all the normal rights and functions of management and those that it has by
Without limiting the generality of the foregoing, this includes the right to hire, promote,
demote or suspend or otherwise discharge or discipline for proper cause; the right to decide
to be done and location of work; to contract for work services or materials; to schedule
work; to establish or abolish a job classification; to establish qualifications for the various job
classifications; however, whenever a new position is created or an existing position changed,
County shall establish the job duties and wage level for such new or revised position in a fair
equitable manner subject to the grievance and arbitration procedure of this agreement. The
shall have the right to adopt reasonable rules and regulations. Such authority will not be
a discriminatory manner. The County will not contract out for work or services where such
contracting out will result in the layoff of employees or the reduction of regular hours
bargaining unit employees.
. . .
ARTICLE V HOURS
Section 5.1. Workday and
Workweek Defined. The standard workday shall not exceed
eight (8) hours, and the standard workweek shall not exceed five (5) days, or a total of more
forty (40) hours in any one (1) workweek from Monday to Friday inclusive.
Section 5.2. Compensatory Time
Off. Compensatory time off at a rate of time and one-half
(1-1/2) shall be allowed for all hours worked in excess of
eight (8) hours on a regular workday (Monday through Friday
inclusive) or in excess of forty
(40) hours, (for which overtime pay or compensatory time off has not been previously
any calendar week or pay period.
. . .
ARTICLE IX OVERTIME
Section 9.1. Outside Shift
Hours. Hours worked outside an employee's regular shift shall
be paid at a rate equal to one and one-half (1-1/2) times the employees regular rate of pay.
Section 9.2. Weekly. Hours
over forty (40) per week shall be paid at a rate equal to one and
one-half (1-1/2) times the employees regular rate of pay. Excused absences such as sick
vacations, holidays, etc., shall be considered hours worked in computing the forty (40) hour
Section 9.4. Call-In Pay.
employee called to work outside of his regular work schedule
shall receive a minimum of two (2) hours' work or pay at the required overtime rate.
. . .
On June 6, 1997, the Union filed a class action grievance over the County's
decision to deny
Social Worker requests for overtime pay for work they performed in excess of an eight-hour
and/or forty- hour work week. The grievance alleges that Social Workers were required to
additional hours to meet the demands of their workload in fulfilling their responsibilities to
clients and the County. The County denied the grievance arguing that overtime had to be
pre-authorized by management and employes were not entitled to receive it even if the hours
worked, but not authorized.
Since the mid-1980's, there has been a history of management and the Union
following a flex
time practice of adjusting the standard eight-hour day, 8:00 a.m. to 5:00 p.m.,
workload, caseload and client needs. The flex time practices have never been
although the County has proposed doing so in prior negotiations, but never reached
the Union to do so. All Social Workers are eligible to use flex time and many have done so
continue to do so because the County has denied most of their requests for overtime. When
County has approved overtime in the past, it was because court proceedings extended beyond
normal eight-hour day or management had pre-authorized employes to work overtime.
The Union argues Social Workers regularly work more than eight hours in a day
hours in a week. They are in court after the end of the normal workday, work on reports at
and at the office that need to be submitted within strict time limits, and conduct supervised
visits at night to accommodate the client's schedule. The County, the Union asserts, has
said to employes flex your schedule, extend your workday, and shorten your work week.
points to the Schroeder, February 14, 1995 memo, wherein he defines overtime
("allows an employee
to voluntarily work beyond the normal eight (8) hour day and earn 1.5 hours for each hour
as either compensatory time or paid time"), as the policy the County is not following.
the Union asserts the County has paid overtime to the Department's clerical employes, who
more than eight hours in a day or forty hours in a week, while at the same time denying
professional Social Workers who need to work additional hours to catch up on reports and
paperwork. The Union argues this grievance is driven by employe fears of adverse
the paperwork and forms are not done timely and completely; however, to do so requires that
work additional hours beyond the eight-hour day an/or forty-hour week. The Union also
situation is worsening because of increases in the severity of the cases they handle and
the reports. The end result is that employes are giving away time and working off the clock
while they are working the necessary additional hours, their workloads do not allow them to
enough hours to receive additional time off. The Union contends, therefore, because the
requires premium overtime pay or comp time for hours worked in excess of eight in a day or
per week, the Employer violates the contract by not paying same to Social Workers. The
sought by the Union is that the County be directed to allow employes to work overtime to
their work as the job demands, or that they not be held accountable for not meeting the
their job when the County refuses them the overtime necessary to perform their jobs
The County, however, insists that the flex time practice has been long standing since
1980's, and that this grievance is an attempt by the Union to rewrite the practice and the
bargaining agreement without bargaining. It notes this issue was not raised in the
were concluded at or near the time the grievance was filed. The County asserts this is an
the Union to permit the employes to manage the Department workload and budget. The
further contends the reason why clerical employes were paid for overtime while Social
not, is because the latter are professionals and they control the quality of their work. Thus,
their discretion is the number of hours they believe they must work beyond eight or forty to
a quality work product.
The County also argues that they are required to adhere to the existing flex time past
and that failure to do so would have precipitated a different grievance. Furthermore, the
the past ten years, has never grieved the administration of the flex time practice. The
insists that the documentary evidence and testimony of Union witnesses established that
has consistently and correctly followed the flex time practice.
The County concludes its arguments by insisting that it is management's right to
overtime. The option for paid overtime does not rest with the employe. Therefore, it
grievance should be denied and the County be permitted to continue adhering to the flex time
that is clear, unequivocal and relied upon by both parties. It believes any other result must
negotiated between the parties.
The employes' grievance requests a finding that the County has violated the collective
bargaining agreement by not authorizing employe requests to schedule overtime and instead
them to flex their schedules. Article I, Section 1.2, Management Rights, provides that
otherwise provided in this agreement, the County retains all the normal rights and functions
management . . ." This includes the right to ". . . schedule overtime
work . . ." The County has
asserted that for this reason, the grievance should be denied because to grant the grievance
essence usurp its authority to determine when and under what circumstances overtime will be
worked. The Union countered that Article IX requires that any hours worked outside
regular shift and hours worked in excess of forty be paid at time and one-half.
If the undersigned were to grant the grievance, I would necessarily have to find that
management rights clause granting management the right to schedule overtime does not
preclude an employee, based upon his/her workload demands, from determining that
outside their regular shift and/or workweek is necessary. However, there is no contract
providing for such an exception to management's right to schedule all overtime work. The
of Article IX merely defines what constitutes overtime work and how it is to be
compensated and the
grievants have not pointed to any other language which would support the conclusion that
exception exists. Thus, it must be concluded that the decision whether an employe is to
overtime rests exclusively with management. Such a conclusion is also supported by the
distribution clause, Section 9.3. Section 9.3 states overtime will be divided as equally as
Clearly, management would not be in a position to equitably distribute overtime work if it
to the employes' discretion as to when it was to be worked.
The County has established that under certain reoccurring conditions an employe will
the overtime premium for hours worked outside the standard workday and not be forced to
his/her hours. One such example is when the court directs the Social Worker to be in court
the standard workday. Aside from such pre-established circumstances, the County does not
employes overtime when a Social Worker works more than eight hours in a day, unless
management has pre-approved overtime work. The undersigned's reading of Article I and
together persuades me that the County's refusal to pay overtime
when an employe chooses to work more than eight hours in a day or forty hours in a
week, and was
not directed by the court or management to do so, does not violate the collective bargaining
The undersigned is mindful of Social Workers' concerns expressed at the hearing that
may be subjected to discipline and or discharge for unsatisfactory work performance, and
order to assure themselves that does not occur they are having to work a significant number
in excess of forty per week and/or eight in a day. However, the parties have a long-standing
initiated in response to employe concerns regarding hours of work, caseloads and overtime of
allowing Social Workers to flex their schedules to provide better service, and satisfactorily
their workloads, without the County incurring overtime costs. It may be, as Union witnesses
testified, that the ever increasing complexity of the caseload and reporting requirements make
one's work schedule no longer sufficient to meet those demands. While that may suggest
in the practice are necessary, or the practice needs to be terminated, those decisions are
one for the parties to make, and are not decisions to be unilaterally imposed through
Based upon the foregoing and the record as a whole, the undersigned enters the
The County has not violated the parties' collective bargaining agreement by refusing
authorize Social Workers to work overtime for pay or comp time except when court hearings
outside normal working hours or when management or the court requests work be completed
normal work hours.
Dated at Madison, Wisconsin, this 28th day of May, 1999.
Thomas L. Yaeger, Arbitrator