BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL 40,
DOOR COUNTY (COURTHOUSE)
Mr. Grant P. Thomas, Corporation Counsel, Door County, P.O.
Box 670, Sturgeon Bay, Wisconsin 54235-0670, on behalf of the County.
Mr. Gerald D. Ugland, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, P.O. Box 370, Manitowoc, Wisconsin 54220-0370, on behalf of
the Local Union.
According to the terms of the 1996-99 collective bargaining agreement between the
County Board of Supervisors (County) and Door County Courthouse Employees,
AFSCME, AFL-CIO (Union), the parties requested that the Wisconsin Employment
Commission designate a member of its staff to hear and decide a dispute between them
whether the Employer could refuse to allow employes to accrue compensatory time rather
paying them overtime payments. The Commission designated Sharon A. Gallagher, a
member of its
staff to hear and decide this dispute. The hearing was held at Sturgeon Bay, Wisconsin on
1999. No stenographic transcript of the proceedings was made. The parties submitted their
post-hearing briefs by April 12, 1999 and reserved the right to file reply briefs within ten
after the receipt of initial briefs.
The parties were unable to stipulate to an issue or issues for determination in this
Union suggested the following issue:
Did the Employer violate the collective bargaining agreement
when it refused to allow Julie
Wittstock to accrue work in excess of eight hours as compensatory time? If so, what is the
The County suggested the following issues:
1) Whether a public employer may pay an employe
cash overtime rather than permit an employe
to accrue compensatory time.
2) Whether a public employer
may unilaterally reduce an employe's accrued compensatory time
by making cash (overtime) payments.
The parties agreed to allow the undersigned to frame the issues based upon the
evidence and argument and their suggested issues.
Based upon the relevant evidence and argument in this case, as well as the
parties, I find that the Union's issue more reasonably states the controversy between the
it shall be determined in this case.
ARTICLE 16 WORK SCHEDULE, OVERTIME
AND COMPENSATORY TIME
. . .
Time: Compensatory time off in lieu of overtime payment may be
granted by the mutual agreement of the employee and his or her Department Head at times
Employees shall be limited
in accumulating compensatory time to eighty (80) hours. Any time
over the amount shall be paid to the employee. This provision shall take effect on January 1,
1990. Compensatory time accumulated, but not taken off in the calendar year of
shall be taken off by June 1 of the following year. However,
carried over compensatory
time is (sic) not used by June 1 of the following year, it shall be paid out at the regular rate
payable at the time it is paid.
Employees shall be paid for
all compensatory time accumulated, but unused at the time of
. . .
The parties have had a collective bargaining relationship since the first contract
between them covering the years 1986 through 1987. In that contract, the parties negotiated
16 Work Schedule, Overtime Pay and Compensatory Time. In Section
C. of Article 16, the parties
included the following:
Compensatory time off in lieu of overtime payment may be granted by
the mutual agreement of the employee and his or her Department Head at times agreed to.
. . .
Employees shall be paid for all compensatory time accumulated,
but unused at the time of
During the parties' discussions, the Employer was concerned that
the Department would not be
disrupted by the use of compensatory time. At the time the above-quoted provision was
the parties never discussed whether the Employer had a right to control the accumulation of
compensatory time. There is no evidence on this record to indicate whether the Union or the
originally proposed that compensatory time be included in the contract.
During negotiations over the 1991-93 collective bargaining agreement, the County
limit the amount of time that employes could accrue on the books as compensatory time so
large amount would not have to be paid out if employes quit or were otherwise terminated.
introductory language of Article 16, Section C, therefore remained unchanged and the parties
to insert the following language into Article 16, Section C, prior to the final paragraph
Employees shall be limited in accumulating compensatory time to
eighty (80) hours. Any time
over the amount shall be paid to the employee. This provision shall take effect on January 1,
Again, the question never came up whether the employe had a right to select
compensatory time over
receiving overtime payment.
The parties reached an impasse regarding the 1994 contract, but later reached a full
during mediation before the Wisconsin Employment Relations Commission. As a part of that
mediated settlement, the County sought and was able to gain a concession from the Union
the fact that compensatory time could not be endlessly accrued but that it would be paid out
on a date
certain. The language inserted into Article 16, Section C read as follows:
Compensatory time accumulated, but not taken off in the calendar
year of accumulation, shall
be taken off by June 1 of the following year. However, if carried over compensatory time is
used by June 1 of the following year, it shall be paid out at the regular rate payable at the
time it is
Again, the subject whether it was the sole option of the employe to select
compensatory time or
overtime payment was not discussed by the parties during mediation.
It is also clear that the subject of accrual of compensatory time versus overtime
not the subject of discussions in neither the 1995-96 agreement nor the current collective
agreement. It is undisputed that in recent years, the County has given probationary employes
have no accrued sick leave) the opportunity to accrue and use compensatory time when they
need of time off related to illness. It is also undisputed that prior to the instant grievance, no
had been refused the right to accrue compensatory time rather than taking overtime
County has an overtime/compensatory time request form which employes generally need to
for approval to their department head in circumstances where the need for
time is known in advance and can be requested and authorized.
During the week of August 31, 1998, Wittstock worked four hours in excess of 40
week and eight hours per day. On her time card for that week, therefore, Wittstock listed
of compensatory time. It is undisputed that Wittstock never submitted an
time request form to her supervisor, Nancy Robillard prior to inserting her request for
time on her time card for the pay period August 23-September 5,
1998. On September 17, Wittstock discovered on her paycheck that she had been
compensatory time and had been paid for four hours of overtime during that previous pay
Wittstock admitted that she and Robillard did not reach an agreement before she
her time card regarding her request to accrue compensatory time during the week of August
1998. Wittstock stated that she merely mentioned that she would be requesting compensatory
to Robillard, and Robillard did not respond to her comment. The Union failed to produce an
overtime/compensatory time request form covering the disputed four hours of requested
compensatory time. The documentary evidence showed that Robillard merely marked her
Wittstock's request for compensatory time on Wittstock's time card and never spoke to
about it before she denied her compensatory time. Wittstock was properly paid time and
the four hours she worked during the week of August 31, 1998. Wittstock timely filed the
grievance which was processed to arbitration.
POSITIONS OF THE PARTIES
The Union argued that the disputed language has always meant that employes merely
to arrange with their department head to take compensatory time off, and that the provision
meant that employes needed to get permission before accruing compensatory time. In this
the Union noted that various provisions of the Courthouse contract, including those
Hazardous Weather, Vacations and Holidays support this position.
In addition, the Union pointed out that the County Highway Department contract at
VIII, Section 1, Compensatory Time, states that "employes shall have the option
overtime worked. . .in the form of compensatory time off." The Union urged that this
unnecessary in the Courthouse unit, as the employes always had the option to decide whether
to accrue compensatory time or be paid overtime. Furthermore, the Union noted that the
never negotiated regarding whether the employes had the right to accrue compensatory time
than be paid overtime. According to the Union, it was assumed to be the employe's choice.
Thus, the Union argued that Wittstock was merely exercising her prerogative to take
overtime as compensatory time in September, 1998 when she placed the notation of four
compensatory time on her time card. Indeed, the Union noted that Wittstock informed
Robillard that she (Wittstock) was going to take the time as compensatory
time and that Robillard failed to respond, and merely denied Wittstock's right to take
time without any notice to Wittstock, by paying Wittstock overtime for the 4 hours involved
The Union noted that the contract does not make a distinction between tenured and
probationary employes for purposes of accrual of compensatory time. The Union argued that
County's grant of compensatory time to probationary employe Schaffer was unfair to tenured
employes such as Wittstock. Whether Wittstock used the compensatory time as her private
account, as claimed by the Employer, is not relevant to this case, and the Union in its brief
to the submission of this evidence on the record, although it had failed to object at the time
evidence was submitted at the hearing. In addition, the Union noted that whether or not
had difficulty using her four weeks of vacation time is also irrelevant to this case, and should
The Union argued that the accrual of compensatory time was common prior to 1998,
noted that in 1997, Wittstock accrued the maximum compensatory time, 80 hours. However,
Union noted that this accrual in 1997 was unusual due to a heavier than usual workload in
Department. Furthermore, the Union noted that the County had allowed employe Jome to
compensatory time after Wittstock had been denied accrual of compensatory time.
The Union asserted that Article 16, Section C, paragraph 1 was bargained for
purposes only; that it was never discussed and the Employer never asserted that it could
whether overtime would be accrued as compensatory time. In addition, the parties bargained
on compensatory time to cover the situation where employes might leave and to limit the
compensatory time payout necessary under the contract. The County's main concern in the
negotiations surrounding Article 16 was that it needed to avoid disruption to the various
offices covered by the contract so that employes and their supervisors would need to agree
compensatory time would be taken off.
The Union argued that Article 16, Section C, paragraph 1 is like the Vacation and
Holiday language in the Agreement (Articles VII(E) and VIII(A)). All of this language was
the collective bargaining agreement to avoid scheduling problems when time is taken off, not
address accrual. Furthermore, the Union noted that the Employer produced no witness to
the Union's evidence regarding the above. Thus, the Union argued that employes should get
benefit of the compensatory time provision if they choose to use it; that the contract does not
the Employer can choose between overtime and compensatory time for employes and that
been the case since the parties' first contract in 1986. Indeed, the Union noted, no employes
ever been refused the right to accrue compensatory time before this case arose.
In regard to the Fair Labor Standards Act, the Union argued that that statute requires
agreement must be reached in advance before overtime worked will be accrued as
The Union urged that the collective bargaining agreement is such an agreement in advance.
where no collective bargaining agreement exists can there be individual agreements on
time. The collective bargaining agreement in this case allows the County to cash out
compensatory time only on June 1st. Therefore, the County cannot, without
permission, cash out their compensatory time when the County chooses to do so. Finally,
noted that the County failed to provide any evidence of bargaining history contradictory to its
The Union noted that the County Clerk's office now has more employes, and that the
workload has been decreased. It also noted that it was the County that proposed to allow
accrual to increase in the effective labor agreement by allowing carryover of vacation time.
In all of
the circumstances of this case, the Union urged that the past practice clearly shows that it is
employes' choice to take compensatory time or to receive overtime pay. The Union noted in
regard that acceptance of a past practice may be tacit; that the right to select compensatory
a definite benefit to employes; that the practice has existed for 13 years since the parties'
collective bargaining agreement; and that subsequent limitations on accrual have been
the parties and they have not disturbed the past practice allowing employes to decide whether
wish to receive compensatory time or overtime. The collective bargaining agreement
compensatory time and does not prevent employes from choosing compensatory time except
limitations on maximum accrual.
The Union therefore sought an award allowing employes to choose compensatory
overtime and offering Wittstock and any other similarly situated employes the right to
overtime payment received for compensatory time accrued and to make all affected employes
The Employer argues that the language of Article 16, Sections B and C is clear and
unambiguous, and determinative of this case. As the language is not subject to more than
reasonable interpretation, the County argued that evidence of practice is irrelevant. In
County noted that the contract makes clear that overtime must be paid for overtime hours
worked; that compensatory time may be substituted for cash overtime if there is a mutual
between the Employer and the employe, all pursuant to Article 16, Sections B and C.
In addition, the County urged that the Fair Labor Standards Act provides rights that
similar to those expressed in the collective bargaining agreement and consideration of the
would be appropriate in this case. The Employer noted that a large part of the reason
why Congress allowed governmental employers to grant compensatory time rather than
overtime was to avoid large cash payments to employes, for which they could not properly
in a governmental setting. Furthermore, the County noted that the FLSA authorizes public
employers to offer compensatory time in lieu of cash overtime and that mutuality is a
precedent to compensatory time being accrued and used in lieu of cash overtime payments.
The County therefore argued that it could reduce an employe's accrued compensatory
by making cash overtime payments and that the collective bargaining agreement does not
such actions by the County. This is not a case, the County urged, where the collective
agreement is silent on the disputed subject. Therefore, in the County's view, there is no
admission of past practice or evidence of custom to alter the clear meaning of Article 16.
Furthermore, the County noted that there was no mutual agreement to amend the clear
Article 16 and there is no consistent practice as the Union has claimed. The County
the non-use of the right should not entail its loss. The County therefore urged the
deny and dismiss the grievance.
The Union urged that the County had misapplied both the FLSA and a case cited in
The Union reiterated its argument that the collective bargaining agreement constitutes an
in advance regarding compensatory time, making the FLSA inapplicable.
The Union also contended that the alleged windfall employes receive when they are
for compensatory time earned in the prior year after June 1st of the
subsequent year is neither relevant
nor monetarily significant. In the Union's view, as the contract clearly requires employes to
option to accrue comp time, the grievance must be upheld by the Arbitrator.
The County argued that Article 16, Section C is not susceptible to more than one
interpretation: overtime payment is mandatory while giving compensatory time off is
requiring the agreement of the employe and the Department Head. The County also argued
Union's comparison of Article 16, Section C to Articles 7 and 8 of the contract and to the
Compensatory Time provision in the Highway Department contract were of no assistance in
determining the outcome of the case. Furthermore, the County took issue with the Union's
interpretation of the FLSA, arguing that it should be applied herein. The
County therefore urged that the grievance be denied and dismissed as the Union has
failed to carry
its burden of proof herein regarding past practice, bargaining history and the proper
of Article 16.
Several preliminary matters should be dealt with before I reach the substantive issue
First, I observe that the employe's reason for wishing to accrue compensatory time rather
receiving overtime payments is neither relevant nor material to this case. Therefore, this
well as the evidence regarding workload fluctuations at the County, whether employes have
scheduling and taking their vacation time off and how many hours of compensatory time
accrued and/or paid out to unit employes in the past, has no bearing in this case, and this
has not been considered herein.
In addition, I find that the language of Article VIII, Section 1 contained in the
Department bargaining agreement is so differently worded as to make it of no use in
issue in this case. In the Highway Department contract, the compensatory time clause
states that "employes shall have the option to accumulate overtime
worked. . . in the form of
compensatory time off." (emphasis supplied). In the Courthouse agreement, in contrast, no
is made to the term "option" and the mandatory verb "shall" is not used therein. These
are vast enough to require that the Highway Department language be disregarded in this case.
similar reasons, I do not find the language of Articles VII and VIII of the effective
agreement to be
instructive regarding the issue raised herein. 1/
1/ In this regard, I note
that the verb "shall be scheduled" is used in Article 7, while the verb
"shall be granted" is used in Article 8. In the Hazardous Weather provision in
Article 16 the verb
"shall be entitled" is used.
Furthermore, the parties have argued
strongly regarding the applicability of the Fair
Labor Standards Act to this case. I agree with the Union that the collective bargaining
between the parties which contains a provision at Article 16, Section C covering
time constitutes an agreement in advance which makes the FLSA inapplicable to this
I now turn to the substantive issue in this case. This case
involves the proper interpretation
of the first sentence of Article 16, Section C. That sentence reads as
Compensatory time off in lieu of overtime
payment may be granted by the mutual agreement
of the employe and his/her Department Head at times agreed to.
The Union has argued that the reference to mutual agreement in this
sentence only requires that
agreement be reached regarding when compensatory time will be taken off. In the Union's
mutual agreement is not required for the selection of compensatory time rather than overtime
payment; this selection, in the Union's view, can only be made by the employe. I disagree.
my view, this sentence clearly requires mutual agreement for both the granting
time off in lieu of overtime payment as well as for planning when compensation time granted
This analysis of the disputed language is supported by the use of
the verb "may be
granted". If the parties had intended employes to have the absolute right to select
time whenever they wished, the parties should have used the verb "shall be granted", rather
the permissive verb "may be granted". Also, the use of a form of the verb "granted"
allowing, permitting, consenting or bestowing. In addition, the object of the sentence,
agreement", specifically refers back to the subject of that sentence, "compensatory time off".
Thus, the disputed sentence operates to grant an automatic cash payout of overtime unless
mutual agreement is reached that compensatory time will be accrued in lieu thereof. The
language of Article 16, Section C clearly requires a mutual agreement by the employe and
Department Head before compensatory time "may be granted" and it requires that when
compensatory time off is to be taken, the employe and the Department Head must first reach
agreement thereon as well.
The fact that the County has never (before this case) denied
compensatory time to an
employe does not mean that the County has waived its contractual right to refuse to agree to
accrual of compensatory time. It is axiomatic in grievance arbitration that the failure to
a right granted by the language of a contract, does not mean the right is forever lost. Also, I
it unremarkable that the parties never discussed at negotiations the meaning of the first
of Article 16, Section C, and that the parties amended other parts of this Section. It is
that the County and the Union felt no comment was necessary, although the parties may have
different interpretations of the disputed language.
The facts of this case clearly show that although (in
conversation) Wittstock informed
Department Head Nancy Robillard that she intended to request compensatory time for the
hours she worked during the week of August 31, 1998, Robillard never agreed to Wittstock's
request. Thus, mutual agreement to the accrual of compensatory
time was never reached either
in conversation or at any time before Wittstock turned in her time card for the pay period.
2/ The Union has argued
that Robillard should have notified Wittstock in advance that she
(Robillard) intended to deny Wittstock's compensatory time request. The contract does not
require such notification.
Rather, Robillard merely paid out Wittstock for the extra hours she
had worked during the week
of August 31, 1998, on Wittstock's next paycheck. Given the lack of mutual agreement to
Wittstock's request to accrue compensatory time, I find there was nothing improper in the
County's paying overtime to Wittstock, as the language of Article 16, Section C provides for
an automatic payout.
The Union has argued that it is somehow improper for the
County to allow probationary
employes to accrue and use compensatory time when they are ill or otherwise need to take
off work. As Article 16, Section C uses the verb "may be granted", it is the County's
if it chooses, to reach mutual agreement with probationary employes (or any other employes)
accrue and to use compensatory time during their probation or at any other time. 3/ Based
the relevant evidence and argument in this case, and in light of the
3/ The Union offered no
evidence that the County had a bad faith motive or otherwise
discriminated against Wittstock by denying her request to accrue compensatory time herein.
fact that Wittstock was paid for all hours in question at a time and
one-half rate, I therefore issue
The Employer did not violate the collective bargaining
agreement when it refused to allow
Julie Wittstock to accrue work in excess of eight (8) hours as compensatory time. The
is therefore denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin this 18th day of June,
Sharon A. Gallagher, Arbitrator