BEFORE THE ARBITRATOR
In the Matter of the Arbitration Between
MARATHON COUNTY PROFESSIONAL
COURTHOUSE AND AFFILIATED DEPARTMENTS
AFSCME, LOCAL 2492-D
(Shelter Home Meals Grievance)
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall
Street, Schofield, Wisconsin, for the Union.
Atty. Richard J. Weber, Kelly, Weber, Pietze & Slater,
S.C., 530 Jackson Street, Wausau,
Wisconsin, for the County.
The Marathon County Professional Employees, Local 2492-D, AFSCME, AFL-CIO
Union,") and the County of Marathon ("the County,") are parties to a collective bargaining
which provides for final and binding arbitration of disputes arising thereunder. On October
the Union made a request, in which the County concurred, that the Wisconsin Employment
Commission appoint a member of its staff to hear and decide a grievance concerning the
interpretation and application of the terms of the collective bargaining agreement relating to
Hearing in the matter was held in Wausau, Wisconsin, on February 23, 1999; it was not
The Union submitted written arguments on March 17,1999; the County submitted a brief on
8, 1999; the Union
submitted a response on May 14, 1999. The Union extended to the County the
opportunity for an
additional reply brief, an offer to which the County did not respond. The record in this
on June 1, 1999.
The parties stipulated to the following issue:
Did the employer violate the collective bargaining agreement,
Article 5/A/4, when it changed the
meal provision for Shelter Home employes on January 1, 1998? If so, what is the remedy?
Article 2 Management Rights
The County possesses the sole right to operate the departments of
the County and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract. These rights include but are not limited to the following:
A. To direct all operations of the respective departments;
F. To maintain efficiency of department operations entrusted
H. To introduce new or improved methods or facilities;
I. To change existing methods or facilities.
The rights of management set forth above are not all inclusive,
but indicate the type of matters
or rights which belong to and are inherent to management. Any of the rights, powers and
the County had prior to entering into this collective bargaining agreement are unqualified,
exclusively in this County, except as expressly and specifically abridged, delegated, granted
modified by this Agreement.
Article 5/A/4 Hours of Work and Overtime
Breaks: All employees except Shelter Home Youth
Workers shall receive a one(1) hour lunch
period without pay and two (2) fifteen minute rest breaks with pay in each complete working
The County shall provide Shelter Home Youth Workers with meals according to current
Effective with the 1982 collective bargaining agreement between the parties, the
had the obligation to provide Shelter Home Youth Workers "with meals according to current
practice." This grievance concerns changes in the meal system which the County
January 1, 1998.
For several years prior to 1998, the Home was operated as part of the Children's
Services Department. During a time when the Home was located in immediate proximity to
Marathon Health Care Center, the employes took their meals by access to the Center's
along with the Center residents. Subsequently the Home relocated, and the Center delivered
to the employes, who had the option of taking a tray (with one of two or three pre-selected
or ordering soup and sandwich a la
carte. Meals provided under this arrangement were valued at
Effective January 1, 1998, reflecting changed philosophies and procedures in the field
juvenile justice, the County transferred operation of the Home to the Sheriff's Department.
to reduce costs, the Sheriff sought a unified contract for all Jail/Shelter Home/Juvenile
Facility meals, and bid the package pursuant to county procurement policy. The
Central Health Care Facilities (NCHCF), was the sole bidder, and the Center and the Sheriff
on a contract under which the meals would be provided by the Marathon Health Care Center,
element of the NCHCF.
Under the contract, all Home employes and residents of the Jail, Home and Detention
are offered the same single tray option. Employes are presented with weekly menus, based
on at least
a four-week cycle, and decide daily whether or not to order the meal. The menu is as
by the Health Care Center nutritionist, and conforms to dietary requirements which the
Department of Corrections has established for jail residents. In addition to the elimination of
for the Home employes, the new system provides for a lower quality of food, reflected by
discontinuance of items such as baked potatoes and the prevalence of processed meats.
been a significant reduction in the number of meals
eaten by Home employes. 1/ While the meals at the three facilities are identical, they
differently based on monthly average meal count, and budgeted at $2.04 for the Jail,
1/ Union witnesses
testified at hearing that they had frequently eaten the meal under the
former arrangement, and rarely ate under the new provisions. County witnesses did not
this anecdotal evidence, and testified that they did not maintain records of employe usage of
benefit other than the gross numbers on the monthly billing statements.
and between $2.75 and $3.41 at the Home/Juvenile Detention Facility, depending on
the number of
On February 2, 1998, Shelter Home Youth Worker Ralph Chavez filed the following
Management is operating against current
practice and is in direct violation of employee contract.
Since 1-1-98 all youth workers must eat
trays prepared for the jail (worth $1.90) or not eat at
all (unless the employee brings in their own pre-cooked etc, food). Prior to this, youth
their choice of the general tray (worth $4.25) or food from the "soup and sandwich" menu
This meal choice was agreed upon by
management and the employees to replace the youth
workers rest breaks and the workers inability to take a lunch period.
The choice the choice the employees had of
a meal has been in effect for at least 5 years and is
considered to be a current (and past) practice. Presently the labor agreement is being
violated by not
following current practice of breaks/meals.
Youth workers need to be returned to
"current practice", i.e. their choice of the general tray, not
the jail tray, or their choice of food from the soup and sandwich menu.
Another option youth workers may accept
would be compensation (monetary) equal to the price
of the general tray.
At this time, the youth workers are requesting management to
make the employees whole and
return them to the benefit which they are entitled to per contract (Article 5A#4).
On July 6, 1998, the Food Services Director at North Central
Health Care Facilities provided
Jail Administrator Capt. John Reed with the following memorandum:
North Central Health Care Food Service developed a menu and
price per meal based on a single
menu for the Marathon County Jail, Shelter Home and Detention Center. The feasibility of
the trayline by 30% with the increases from these 3 facilities is based on the single menu and
organization of production and tray preparation.
At this time we are not interested in
offering an al a cart (sic) menu to Marathon County facilities
as an alternate to the current single menu system.
In early August 1998, Marathon County Sheriff Gary Marten
and Tim Steller, the chief executive
officer of the provider, NCHCF, executed the following Contract Amendment:
When average meal count is forty-five (45) or more for the
Shelter Home/Detention Center for
any month, the price per meal shall be two and 75/100 dollars ($2.75); when average meal
less than forty-five (45) for the Shelter Home/Detention Center for any month, the price per
shall be three and 41/100 ($3.41).
POSITIONS OF THE
In support of its position that the employer violated the collective bargaining
Union asserts and avers as follows:
There can be no reasonable doubt that the County has violated the
contract. The Union finds it
difficult to understand how the County can believe that their action is even remotely
the provisions of the collective bargaining agreement requiring it to provide meals according
current practice. The undisputed circumstances are in direct and flagrant conflict with the
intent and unambiguous meaning of terms of the contract.
Case law holding that language that is clear must be given its full
effect is longstanding and
voluminous. Here, the circumstances are undisputed and the contract language exceedingly
The meal change at the Shelter Home constituted a flagrant contract violation.
A proper remedy is less clear. The standard
"make whole" remedy is unworkable because there
is no way employees can now be granted past meals. In fashioning an appropriate remedy,
arbitrator should be mindful of the following:
* Cost-free meals were
provided in return for the facts that employes did not
enjoy two fifteen minute breaks per work shift. Unrebutted testimony showed
that employes were advised that the free meals were being provided in
exchange for the fact that the employes could not take breaks.
* The vast majority of
Shelter Home employes did no even order the meals after
the changed practice was implemented. The County thus realized an
additional, possibly unintended, bonus for its contract breach first it saved
on the reduced cost of the meal, then it saved because employes were
ordering far fewer meals than before.
* While it is clear the
revised meal plan saved the County money, the specific
facts of the cost picture are somewhat clouded.
* It might not be
possible for the employer to revert back to the previous
practice. While a letter from the Health Care Center said is was "not
interested" in offering the old a la carte menu, no witness testified as to
whether or not such an offering would be possible, or whether a private
caterer could assume the responsibilities.
Accordingly, the Union believes that all
Shelter Home employes should receive one-half
hour of pay (plus retirement contribution) for each full shift they worked since
of the program. The County should be ordered to cease and desist from this action, and
revert to the former meal arrangement. If that is not possible, the County should continue to
provide Shelter Home employes with one-half hour pay (with retirement) in lieu of the
In support of its position that the grievance should be denied, the County asserts
and avers as follows:
The selection of a menu and the delivery of meals to county
employes is a function of
county government which by necessity must be characterized as a management function. The
logical extension of the Union's argument is to return to the same menu and manner of
serving the meals in place on January 1, 1982. It is clear from the contract that the phrase
'current practice' by necessity refers to whatever practice the County might have with respect
to meals from time to time. There is nothing in the contract which gives the employes the
right to tell the County what the menu ought to be from day to day; rather, those rights have
been reserved to the County under the management rights provision of the collective
The Union's argument that the meals were
provided in return for the fact that these
employes did not enjoy the fifteen-minute breaks completely ignores the fact that while other
employes received an unpaid lunch hour, the Shelter Home Youth Workers were being paid
during their lunch hour which more than made up for the two 15-minute rest breaks with pay
that the other employes received.
The growth of the County and the
consolidation of services required because of that
growth make it imperative that the County operate its departments so as to maintain
efficiency; the collective bargaining agreement specifically reserves that prerogative to the
County under the management rights clause, which includes reserving unto the County the
sole prerogative to introduce new or improved methods of facilities or to change existing
methods or facilities. Although the practices of the County have changed since January 1,
1982, due to changing circumstances, the County has complied in every respect with the
contractual provision regarding meals for these employes.
The remedy which the Union suggests is
inappropriate, and would result in the equivalent
of the arbitrator rewriting the labor agreement in violation of the specific
the Union cites in its brief. There is no justification for the Union's proposal that the County
hire a private caterer to provide meals, or that the employes receive one-half hour pay plus
retirement contribution for each shift they worked.
Because the labor agreement gives the
County the sole right to operate its respective
departments, and because there is nothing in the agreement which allows the Shelter Home
Youth Workers to select meals from a menu or to in any way dictate to the County what its
current practice ought to be in that
regard, the grievance should be denied.
Further, to award the remedies proposed by the
Union would amount to an impermissive rewriting of the labor agreement by the arbitrator.
In its reply, the Union responds as follows:
The County makes a significant factual error by claiming in its
brief that Shelter Home
employes receive pay while on lunch break. In fact, these employes work a continuous
eight-hour shift and do not receive pay while on their lunch break.
The County also errs in not understanding
that the language it cites from the preamble
to the Management Rights clause in the collective bargaining agreement is subordinate to the
specific provisions of the language of Article 5 now under review.
While the County is correct that the way
meals are provided changed with the opening
of the new health care center, the fact is that this modification was a distinction without an
appreciable difference. The employes still had the ability to select, the quality of the food
not change significantly, and the food was still prepared by the health care center. These
changes are vastly different from what happened in January 1998 when, as the County
acknowledges, "the current practice was modified."
The County's assertion that the Union's
argument would compel a return to the menus
of 1982 is incorrect and ignores the fact that this collective bargaining agreement has been
negotiated many times since. The Union is not asserting that a 1982 practice be followed,
that the spirit and intent of the 1997 practice be honored in a good faith manner.
The County's line of thinking that all that is
required is a nutritious, well-balanced meal,
prepared at the kitchens of the Health Care Center, and that it has the management right to
introduce new methods could result in the County providing freeze dried or powdered food
(or even dog food), provided it was prepared in the health care center and was equally as
nutritious. This is certainly not what Article 5 intends.
When the County transferred the operations
of the Shelter Home, the new supervisors
took action to modify the meal provisions purely to reduce costs.
While the Union has no specific objections
to cutting costs, it respectfully disagrees when
doing so violates the collective bargaining agreement terms on wages, hours and conditions
Since the County has acknowledged that the
cost-free meals were provided in lieu of two
fifteen minute breaks enjoyed by all other County employes, it is the belief of the Union that
a remedy which recognized this undisputed fact would appropriately and equitably restore
justice to those harmed by this violation, namely pay for lost breaks in lieu of meals.
Prior to January 1998, the County provided to its Shelter Home employes the same
meals as it provided to the residents of its nursing home; since then, it has offered the same
meals as it provides to residents of its jail and juvenile detention facility. The Union
the attendant diminution of quality and elimination of choice violates the provision of the
collective bargaining agreement ensuring that these employes receive meals "according to the
current practice." The County disagrees, contending that "the current practice" is, by
definition, that practice which is currently in force, and that it has the managerial right to
determine how to provide the meal. The County also objects to the Union's proposed
The County repeatedly cites the provision in the collective bargaining agreement
regarding management rights as its source of authority for its actions. To the extent that the
County contends that Management Rights clauses of Article 2 take priority or have
precedence over the meal provisions of Article 5, it is in error; the collective bargaining
agreement provides that the managerial grants in Article 2 "must be exercised consistently
with the other provisions of this contract." The express and specific provisions of Article 5
supersede the general provisions of Article 2.
County witnesses readily acknowledged they were aware of the provision in the
bargaining agreement regarding meals, that the County unilaterally changed the way meals
provided, and that the change was expressly undertaken in order to reduce costs. The
acknowledge at hearing that it saves money -- $3.41 -- on each meal that an employe does
The heart of the County's case is that the way it has provided meals to these
already changed over time, as necessitated by operational changes; this, it contends,
"the current practice" is indeed whatever practice the County decides to make current at any
particular time, and not any one practice that is fixed in time.
The County also contends that the basic parameters of the meals program remain
similar to the outlines of earlier system. Indeed, in their broadest terms, certain elements of
program remain unchanged. Prior to January 1, 1998, the County delivered to its Shelter
youth workers meals prepared by the Marathon Health Care Center which were nutritionally
balanced. After that, it still provided to its Shelter Home youth workers meals prepared by
Marathon Health Care Center which were nutritionally balanced.
The Union posits a question would the County use this line of reasoning to
justify meals of
freeze-dried or powdered food, or even dog food, provided it was equally as nutritious and
by the Health Care Center? That question, while rhetorical, does highlight the
difficulties in the
County's position. If "current practice" is a entirely flexible standard that is only measured
what is its real meaning?
The legal analysis turns on this question: does the phrase "according to current
the practice that was current at the time the language was agreed to, or
the practice that
management subsequently made current?
In evaluating what this provision means, it is useful to consider its purpose and
to note how the Shelter Home youth workers are accorded different treatment from other
As noted above, all other unit employes receive two paid rest breaks of fifteen
in addition to their unpaid lunch hour; the Shelter Home youth workers do not receive the
breaks. Testimony from both Union and County witnesses established explicitly that the
workers received the meals in lieu of getting the paid rest breaks.
For operational reasons, the parties determined that it was necessary to deny the
workers at the Shelter Home the same rest breaks all other unit employes received under the
collective bargaining agreement; to offset the loss of that benefit (a duty-free half-hour with
the parties further agreed on a unique benefit, available only to these employes, namely the
employer-provided meal. Indeed, at one point there was a rough economic equivalency
between the value of
the $4.60 meal and thirty minutes of youth worker pay. Today, the $4.60 meal would
somewhat less economic value to a youth worker than would two 15-minute paid breaks. 2/
valued at $2.04 provides even less value, or about one-third of what thirty minutes of pay
2/ The collective
bargaining agreement in evidence states the annualized pay up through
December 31, 1997. The Shelter Home Youth Workers (pay range: $22,443 to $26,403)
the bottom of the pay classification, which ranged from assistant
corporation counsel (top pay: $47,916) to the
second-lowest position, assistant dispositional
intake worker (top pay: $28,583)That is, the assistant corporation counsel's two 15-minute
were worth about $12 a day, and the intake worker's were worth about seven dollars.
The current practice at the time the parties adopted this language was for the
have a number of options for their meals, meals that were valued at about $4.60. The
the employer later implemented involved the lack of choice, and a basic value of as low as
new arrangement was contrary to the county's contractual obligation to provide "meals
to current practice."
I find that the language must mean the practice that was current at the time the
to the language. For it to mean otherwise that the current practice is the practice
that is current
would be a meaningless tautology.
The grievance is well-founded, and must be sustained.
I turn now to the issue of remedy. The Union has proposed several elements
that I grant
to all affected employes one-half hour of pay (plus retirement contribution), and order the
revert to the former meal arrangement. If reversion to the former meal arrangement is not
the Union asks for one-half hour of pay (with retirement) in lieu of meals.
The County correctly notes the extraordinary nature of these remedies. My arbitral
is broad; however, I do not think it broad enough to authorize me to amend the salary
provide for a retirement contribution -- in the manner the Union has proposed. Further, the
to the contract as provider of the meals is the chief executive officer of the multi-county
Central Health Care Facilities; the record is not sufficiently clear on the organizational and
jurisdictional arrangements of the Facilities for me to determine whether the County could
an award directing it to restore the former meal arrangement precisely as prior to January 1,
However, I do have sufficient authority to provide some degree of redress. The
the employes formerly received were valued at $4.60; the current meals are valued at
and $3.41, depending on location and volume. That is, the Sheriff and the Health Care
since January 1, 1998 provided a meal which they have determined has a basic value of
than the value of the meal previously offered to the youth workers. A reasonable remedy
to make the employes whole for this past loss of economic value occasioned by the county's
violation, and to provide for alternative remedies for any continuing violation.
Accordingly, it is my
1. That the grievance is sustained;
2. That the County shall pay to all Shelter Home Youth Workers $2.54 for each
they have worked since January 1, 1998;
3. That the parties shall meet and confer about prospective remedies, including
limited to compensation, the restoration of a meal arrangement substantially equivalent to that
effect prior to January 1, 1998, or such other remedies as the parties may mutually agree to;
4. That I shall retain jurisdiction in the event the parties are unable to agree on a
prospective remedy, such jurisdiction to lapse on September 1, 1999 unless prior to that time
party requests my further participation in a supplemental proceeding.
Dated at Madison, Wisconsin this 22nd day of June, 1999.
Stuart Levitan, Arbitrator