BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1760, AFSCME, AFL-CIO
ST. MARY'S HOSPITAL OF SUPERIOR
(Beverly Lanning Grievance)
Mr. James E. Mattson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1701 East Seventh Street, Superior, Wisconsin 54880, for the
Mr. Greg Hansen, Labor Relations Specialist, St. Mary s
Medical Center, 407 East Third Street, Duluth, Minnesota 55805, for the Employer.
Pursuant to a request by Local 1760, AFSCME, AFL-CIO, herein the "Union," and
subsequent concurrence by St. Mary's Hospital of Superior, herein the "Employer" or
Dennis P. McGilligan was appointed Arbitrator by the Wisconsin Employment Relations
on January 5, 1999, pursuant to the procedure contained in the grievance-arbitration
the parties' collective bargaining agreement, to hear and decide a dispute as specified below.
hearing was held in Superior, Wisconsin, on March 17, 1999. The hearing was not
the parties completed their briefing schedule on May 7, 1999.
After considering the entire record, I issue the following decision and Award.
Did the Employer violate the terms of the collective
agreement and the long-standing past practice of "time slipping" when a less senior employee
was called in to work instead
of the Grievant who has more seniority?
The parties also agree that if the answer to the first question
affirmative, the next question
relates to the appropriate remedy. However, the parties do not agree on the exact wording
question. The Union frames the issue as follows:
And if so, the appropriate remedy is for the Employer to pay
the Grievant for the lost eight
(8) hours of work plus two (2) hours call in pay and the Employer to follow seniority for
While the Employer frames the issue
. . . its proposed remedy, to provide the
Grievant with an opportunity to work the hours she
should have worked had she been called in proper seniority order.
Having reviewed the entire record, the Arbitrator frames the
issue in the following manner:
If so, what is the appropriate remedy?
Facts Giving Rise to the Instant Dispute
Beverly Lanning, hereinafter referred to as the "Grievant," works as an
Services Aide I in the Environmental Services Department of the Hospital. Her seniority
date in the
Environmental Services Department is July 20, 1997, and her original date of hire is
April 20, 1996.
On July 17, 1998, the Grievant was not scheduled to work. On said date
Marilyn Orlandi, who worked as an Environmental Services Aide assigned to the Linen
in sick for the 7:00 a.m. to 3:30 p.m. shift. Environmental Services
Department Supervisor, Priscilla
Khaler, was on vacation that day. Likewise, the Department Manager, Dennis Gunderson,
vacation. With the absence of these supervisors, Maintenance Engineer James Graskey was
Another employe, Dianne Nindorf heard a page for Khaler. She knew that Khaler
vacation that day so she contacted Graskey. She informed Graskey that an Environmental
Aide had called in sick. Graskey asked her what to do. She told him to call in Shirley
another Environmental Services Aide. Graskey called in Shirley Johnson and she worked the
eight-hour shift. However, Graskey reassigned work between Johnson and another employe
already at work because Johnson was not qualified to work in the Linen Room.
Nindorf testified that she mistakenly told Graskey to call in Johnson to work. She
she should have told Graskey to call Pat West in.
The Grievant also has more seniority than Johnson. When the Grievant discovered
not been called in, she requested to "time slip" and to be paid for the lost hours of work due
being called in. When her request was denied, she filed a grievance on July 17, 1998,
"Someone with less seniority than I was called in to fill a vacant position (because they had a
employe call in)" and alleging that a violation of Article 19, 19.02C and 19.02D had
Grievant asked "to be paid eight (8) hours for that day" and "two (2) hours call in pay."
The grievance was denied at Steps One and Two and efforts to settle the matter failed
subsequently proceeded to arbitration.
Time slipping occurs when senior employes are not called in to work while less
employes are called in, and the senior employes "time slip" the Hospital for the lost hours.
employes are paid for the number of hours they would have worked had they been called in
In the past, when senior employes were not called in, the employes and the Union
attempted to enforce the principle of "time slipping." Usually, they were successful although
sometimes the Employer settled the grievance recognizing the principle of "time slipping" but
. . .
1902 C) All non-scheduled employees shall
be contacted on the basis of departmental seniority
in the event of a temporary/shift vacancy.
In the event there are no qualified
non-scheduled employees, the Department Manager will
contact cross-trained employees from the voluntary call list referred to in Article 23.
19.02 D) A shift
vacancy, for purposes of this agreement, shall be defined as any vacant shift due
to an unexpected opening. These vacant shifts shall be filled based upon departmental
POSITIONS OF THE PARTIES
The Union initially argues that the past practice of "time slipping" supports its
other words, the Union claims that in the past when senior employes were not called in to
less senior employes were called in, the senior employes time slipped the Hospital for the
and then were paid for the number of hours they would have worked had they been called in
The Union adds that the employes and the Union always enforced the principle
of "time slipping"
while the Employer always honored "time slipping" grievances or requests. (Emphasis in
The Union refutes the Employer's attempt to disprove the Union's contention of the
long-standing past practice of "time slipping." In this regard, the Union claims that its
witnesses were able
to rebut the Hospital's cited grievances and their individual resolutions as being a refutation
slipping." In particular, the Union argues that its witnesses established that none of the
of the grievances cited by the Employer in support of its position and contained in its
Exhibit Number 1 was a denial of time slipping. Instead, according to the Union,
grievances were dropped due to the fact the particular grievant was not the most senior
senior employe was paid) or in cases where non-precedent setting resolution was reached
for lost hours was made. The Union points out: "being non-precedent setting means what it
The Employer cannot argue using these particular settlements to refute the past practice."
adds: "excluding non-precedent setting agreements and those where no payment was made
another senior employe received time-slipping payment, all the remaining grievances
by time slipping." (Emphasis in original) The Union concludes that a practice exists
seniority rights for call ins and must be enforced.
The Union maintains that the language in Article 19 of the parties' collective
agreement also underscores employe's seniority rights. Based on same, the Union opines
senior employe who is denied the opportunity to work overtime has the right to time slip to
monetary remedy to his/her grievance.
The Union states that the Employer's "make-up" remedy of allowing the Grievant to
additional hours up to the amount of hours in question is unacceptable. Instead, the Union
Grievant should be paid for the hours in question (eight hours plus the two
hours call-in pay).
(Emphasis in original) The Union cites two arbitration awards in support thereof.
The Union further argues its officers never had the responsibility to call in employes
therefore, have no responsibility for the aforesaid violation. The Union points out that Jim
was acting as management's designee within the meaning of Article 25 of the
agreement when he
called the junior employe to perform the disputed work. The Union adds that Dianne
simply trying to be helpful when she suggested that Shirley Johnson be called in and simply
mistake as to who had the most seniority. Mistakes notwithstanding, the Union believes a
award for the Grievant's loss of overtime is appropriate citing another award in support of its
Finally, the Union argues that bargaining history does not refute past practice. The
points out that it did not propose any language on "time slipping" because the long-standing
practice was working well and there wasn't any reason to seek changes in that area. The
points out: "neither did the Hospital make any proposals related to 'time
For a remedy, the Union requests that the Arbitrator sustain the grievance and make
Grievant whole for all lost wages and benefits due to her not being called in to work on
July 17, 1998.
The Employer basically argues that "time slipping" is not "a just and fair resolution
grievance" or "similar mistakes in the future" for the following reasons.
One, there is no clear or binding past practice of "time slipping" because there has
a consistent event occurring with some frequency. All instances where time slipping has
since settlement of the last two contracts has been pursuant to written grievance settlements
on a non-precedent setting basis. Therefore, those instances when payment was
made with such an agreement do not comprise evidence of a past practice. Combine
instances with the cases where payment was denied outright, and it is clear that there were
circumstances that would lead to the establishment of a consistent past practice of "time
Two, Section 1.03 of the agreement provides that said agreement
embraces the entire
understanding and relationship between the parties. (Emphasis in original) The agreement is
on the subject of a remedy in case a junior employe is mistakenly called out of seniority
letter of agreement providing for "time slipping" is attached to the agreement. Contract
does not provide for such a remedy.
Three, the Union had an affirmative duty to propose remedies like "time slipping" at
bargaining table and to secure agreement for them to be binding. However, neither party
language on the subject of "time slipping" during either the 1994 or 1996 labor negotiations.
intent was ever expressed during negotiations by either party to include the practice of time
in the contract, and if the Union had proposed such a provision it would have been rejected
Four, the error in calling another employe out of seniority order was not made by a
representative of management; it was made by a Union member who had failed to properly
the chain of command in authorizing such calls and inappropriately exceeded his authority.
Five, management is philosophically opposed to the kind of labor/management
that acquiescence to a demand of payment for time not worked represents. "Time slipping"
unilateral imposition of a monetary penalty by the Union against the Employer that engenders
unhealthy attitude of entitlement among employes and violates both the spirit and the
the agreement. One measure of organizational health is the extent to which the institution's
and the employes' interests overlap. There is no mutual concurrence of interests in this case
slipping" because the Union would have the Hospital pay sick time for the person originally
to work the shift in question, 8 hours of pay plus 2 hours of call-in pay for the person who
work and the same amount of pay for the person who should have worked it, or a total of
what was budgeted for a single shift. The Hospital would receive nothing in exchange for
to the grievance while the Grievant would receive 10 hours of unearned pay to be made
what might have been.
In conclusion, the Employer believes that this grievance and others like it should be
by offering "the grievant an opportunity to work the extra available hours which would have
assigned had she been called in proper seniority order."
At issue is whether the Employer violated the terms of the collective bargaining
and the past practice of "time slipping" when a less senior employe was called in to work
The Union argues that the Employer committed the aforesaid violations while the
takes the opposition position.
The record is undisputed that a less senior employe was called in to work instead of
Grievant on the date in question. The record is also undisputed that Sections 19.02 C)
and 19.02 D)
of the agreement require that such temporary shift vacancies be filled based upon
seniority. The record further indicates that the Grievant was available/willing to work on the
question. However, the Employer argues that because a Union member instead of a
representative improperly called another employe out of seniority order there is no contract
It is true that Union member Jim Graskey made the decision to call in another
Services Aide instead of the Grievant. However, the record is clear that he was acting in the
of the Chief Engineer pursuant to Section 25.02 of the agreement and was within his
assign the disputed overtime. The record is also undisputed that Graskey was following past
when he called in another employe to fill in for the employe who called in sick. Therefore,
Arbitrator rejects this argument of the Employer, and finds that the Employer violated the
contractual provisions by its actions herein.
The Employer next argues that there is no binding past practice regarding the remedy
slipping." The Arbitrator agrees. While the majority of grievance resolutions related to
slipping" and cited by the parties in support of their respective positions resulted in payment
grievant therein, many of those settlements were on a non-precedent setting basis. (Union
Number 6 and Employer Exhibit Numbers 8, 11 and 13) In resolving said grievances
precedent, the Employer often took the position that it was admitting no "wrong-doing on the
of management" (Employer Exhibit Number 8) and was maintaining its position on the
interpretation of Article 19. (Union Exhibit Number 6) In addition, the Employer
time slipping. (Employer Exhibit Number 4) In the absence of a written agreement, "past
to be binding on both parties must be (1) unequivocal; (2) clearly enunciated and
(3) readily ascertainable over a reasonable period of time as a fixed, and established
by both parties. Elkouri and Elkouri, How Arbitration Works,
5th Edition, page 632 (1997). It is
clear from the foregoing, that the Employer has not always accepted the practice of "time
The Employer further argues that management is philosophically opposed to the kind
of labor-management relationship that acquiescence to a demand of payment for time not
However, the most frequently utilized remedy where an employe's contractual
right to overtime work has been violated is a monetary award (generally at the
overtime rate) for the
overtime in question. Elkouri and Elkouri, supra, p. 745. In some cases,
however, the arbitrator has
considered make-up overtime within a reasonable time to be the appropriate remedy. Elkouri
Elkouri, supra, 745. Those cases include when the bypass was inadvertent,
when the parties' past
practice mandates otherwise, or when the make-up work does not prejudice the rights of
employes. The Common Law of the Workplace, The Views of Arbitrators,
National Academy of
Arbitrators, Theodore J. St. Antoine, Editor, Chapter 10, Remedies in Arbitration by Marvin
s. 10.29, p. 354 (1998). Inadvertence is defined as "The quality of being inadvertent.
2. An instance
of being inadvertent; mistake; oversight." The American Heritage Dictionary of the
Language, New College Edition, (10th Ed. 1981), p. 419. In the
instant case the overtime work was
assigned by a Union employe acting on behalf of management to a less senior employe in
on mistaken information supplied by another Union employe. Testimony of Jim Graskey and
Nindorf. The Arbitrator finds that due to the aforesaid inadvertent nature of the overtime
make-up overtime within a reasonable time period is the appropriate remedy. This is
since it is not even clear that the Grievant would have worked the overtime in question
another employe (Pat West) should have been called and offered the overtime but was not
due to a
Union employe's failure to recommend the proper person for the overtime. (Testimony of
For the above reasons the Arbitrator also rejects the Union's argument that its
should not be held responsible for the events that took place.
In reaching the above conclusions, the Arbitrator rejects the Union's reliance on the
Awards in support of its position because they are distinguishable from the instant dispute.
According to the Union, Arbitrator Raleigh Jones in City of Superior (Wastewater
Treatment Plant), Case 142, No. 53704, MA-9438 (June 11, 1996), rejected the Employer's
attempt to propose a "make-up" remedy instead of monetary relief in "a similar situation."
Arbitrator Jones reached his conclusion to award monetary relief in that case based on
contract language which provided:
Senior employees who are not consulted or given priority on such
scheduled overtime jobs and
therefore do not work such jobs, may file grievance (sic) to receive pay for the
number of hours
worked by a junior employee. (Emphasis added) City of Superior (Wastewater Treatment
Plant), supra, p. 5.
Arbitrator Jones interpreted said contract language: "The word
'pay' means that the senior employe
shall be paid for the overtime hours which were worked by the junior employe."
City of Superior (Wastewater Treatment Plant), supra, p. 5. There is no contract
expressly providing for a monetary remedy where a senior employe is bypassed for overtime
in the instant case.
Likewise, according to the Union, Arbitrator James Engmann preferred to award
relief in Milwaukee Metropolitan Sewerage District, Case 240, No. 45506, MA-6620
6, 1992). It is true that Arbitrator Engmann ordered the District to pay the grievant pay at
overtime rate for the overtime work lost as a result of the District's action. However, unlike
instant case, the District did not assign the disputed overtime as the result of a mistake.
made a deliberate decision to schedule the disputed overtime work over several days and to
its contractual deliberations "to determine who qualified for the overtime on those two days
assign it to that employe as required by the agreement." Milwaukee Metropolitan Sewerage
District, supra, p. 5.
The last case relied upon by the Union is much closer. In City of Manitowoc,
No. 51628, MA-8678, p. 4 (February, 1995), Arbitrator Karen J. Mawhinney concluded:
Even where employers have made good faith mistakes about
calling in senior employees for
overtime, arbitrators have awarded the overtime pay without requiring make-up
work. 1/ Moreover,
where the contract is silent on the remedy, the weight of arbitral authority is to award
While mistakes happen, a monetary award
without make-up work gives employers the
incentive to see that supervisors assign overtime properly according to the contract. It
credibility questions when excuses are made for skipping over senior employees. It gives the
involved a remedy without infringing on the rights to other employees to have the next
overtime work assigned to them. A monetary remedy is particularly appropriate where the
as in this contract, gives senior employees preference and does not attempt to equalize
remedy under an equalization scheme may well be different, because the parties intend to
overtime to all employees. Under the contract language used in this labor agreement, the
intended that the senior employees always get the assignment if they want it.
For those reasons, I prefer the monetary
award and will order such relief in this case.
In the instant dispute, the Employer adopted a new written
policy the day after the instant
grievance was filed to provide for a management person to make the decision to call the
proper person in to fill an unexpected shift vacancy. (Testimony of James Graskey)
Employer believes this will reduce similar errors in the future. The Arbitrator also puts the
on express notice that the general rule, as stated above, where an employe's contractual right
overtime work has been violated is to award monetary relief (generally at the overtime rate)
overtime in question. Given the Employer's adamant philosophical objection to payment for
worked, the Arbitrator would expect it to take every step possible in the future to avoid the
mistake in the assignment of overtime that occurred in the instant case. Finally, the
his award in the instant dispute to make-up work based solely on the "unique facts" of this
Union employe mistakenly offering overtime to a less senior employe based on the erroneous
of another Union employe.) The Arbitrator concludes that based on these "unique facts" the
Award shall not have any precedential value and shall not be considered in determining what
parties' rights are in the future. Based on the foregoing, the Arbitrator rejects the Union's
on Mawhinney's Award.
Finally, the Arbitrator finds it unnecessary to order the Employer to follow seniority
call ins, as requested by the Union in its framing of the remedy issue, since the Employer
did not really
contest its need to follow seniority in the instant case.
Based on all of the foregoing, and absent any persuasive evidence or argument to the
the Arbitrator finds that the answer to the issue as framed by the parties is YES, the
violated the terms of the collective bargaining agreement when a less senior employe was
to work instead of the Grievant who has more seniority. For the reasons discussed above, I
make-up work and will order such relief in this case.
In reaching the above conclusions, the Arbitrator has addressed the major arguments
parties. All other arguments, although not specifically discussed above, have been
reaching the Arbitrator's decision.
Based on all of the above and the record as a whole, it is my
The grievance is sustained.
The Employer is ordered to offer the Grievant make-up work to make her whole for
(8) hours pay and two (2) hours call-in pay she lost as a result of the Employer's action.
Dated at Madison, Wisconsin, this 11th day of June, 1999.
Dennis P. McGilligan, Arbitrator