BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARATHON COUNTY HIGHWAY DEPARTMENT
LOCAL 326, AFSCME, AFL-CIO
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, appearing on
behalf of Marathon County Highway Department Employees Local 326, AFSCME, AFL-
Ruder, Ware & Michler, S.C, by Attorney Dean R. Dietrich,
500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on behalf of
Marathon County Highway Department Employees, Local 326, AFSCME, AFL-CIO,
"Union," and County of Marathon, herein "County," are parties to a collective bargaining
that was in effect at all times relevant to this proceeding and which provides for final and
arbitration of certain disputes. The Union, by request to initiate grievance arbitration
received by the
Commission on April 26, 1999, requested the Commission to appoint either a Commissioner
member of its staff to serve as Arbitrator. The Commission appointed Paul A. Hahn as
on July 8, 1999. (The case had been originally assigned to James R. Meier on April 30,
1999, but was
transferred due to a scheduling conflict). Hearing in this matter was held on July 21, 1999
Personnel Department in the Marathon County Courthouse, Wausau, Wisconsin. The
not transcribed. The parties filed post hearing briefs which were received by the Arbitrator
September 2, 1999. The parties were given the opportunity to file reply briefs but declined
to do so.
The record was closed on September 17, 1999.
The Union did not submit a statement of the issue.
Whether the County violated the Labor Agreement when it
called in another employe other
than the Grievant to perform snow removal work on Sunday, January 24, on the same
highway that the Grievant works as State Patrolman. If so, what is the appropriate remedy?
I adopt the statement of issue as proposed by the County as being a fair
issue which I must decide.
Article 1 Recognition
The County recognizes the Union as the exclusive bargaining
representative for all regular full-time and regular part-time employees of the Marathon
County Highway Department excluding
supervisory, professional and office personnel, the commissioner, assistant commissioner,
assistant engineer, shop supervisor, patrol superintendent, assistant patrol superintendent, and
purchasing agent for the purposes of conferences and negotiations with the employer or its
representative on questions of wages, hours and other conditions of employment.
Article 2 Management Rights
Public policy and the law dictate clearly the Department's primary
responsibility to the
community as being that of managing the affairs efficiently and in the best interests of our
employees, and the community. The employer's rights include, but are not limited to, the
but such rights must be exercised consistent with the provisions of this contract.
1. To utilize personnel,
methods and means in the most appropriate and efficient manner
2. To manage and direct the
employees of the department.
. . .
13. To take whatever
action is necessary to carry out the functions of the County in
situations of emergency.
Any unreasonable application of the
management rights shall be appealable by the Union through
the grievance and arbitration procedure.
Article 3 Grievance
1. Definition of a Grievance: A
grievance shall mean a dispute concerning the
interpretation or application of this contract.
. . .
. . .
C. Arbitration Hearing:
the arbitrator shall meet with the parties at a mutually agreeable
date to review the evidence and hear testimony relating to the grievance. Upon completion
review and hearing, the arbitrator shall render a written decision to both the County and the
which shall be final and binding upon both parties.
. . .
F. Decision of the
Arbitrator: The arbitrator shall not modify, add to or delete from the
express terms of the agreement.
. . .
Article 5 Hours and
. . .
4. Overtime: Employees shall receive time
and one-half (1 ½) their normal hourly rate
for all hours worked in excess of eight (8) hours in a day, or forty (40) hours in a week, or
worked outside the normal hours of work. There shall be no "pyramiding" of overtime,
hours shall be
paid for only once. Time off for vacations
and holidays shall be considered time worked when
computing overtime. Employees shall receive time and one-half (1 ½) their normal
hourly rate for
all hours worked on Saturday and/or Sunday.
STATEMENT OF THE CASE
This grievance arbitration involves Highway Department Local 326, representing the
employes set forth in the Article 1 Recognition (Jt. 1) and Marathon County. The
a contract violation by the County for not calling the Grievant to plow snow on his regular
route on January 24, 1999. The County called in another bargaining unit employe to cover
on Grievant's regular route from 9:00 p.m. Sunday, January 24, 1999 through 4:00 a.m. on
January 25, 1999. The Union alleges that a practice of "right of first refusal," required the
to give the Grievant the opportunity to work this overtime shift to plow snow on the
normal section route rather than the County making a unilateral decision to call in another
The County believed the Grievant would be too tired to work this shift plus his normal shift
Monday, January 25, 1999 which ran from 3:45 a.m. to 3:30 p.m.; this would have
resulted in the
Grievant working a straight 18 ½ hour shift.
The County and bargaining unit employes were engaged in snow removal from a
storm on the weekend of Friday, January 22, 1999 through Monday, January 25, 1999. As
by the parties, the Grievant worked on Friday, January 22, 1999 from 5:15 a.m. to 10:30
performing winter maintenance work. The Grievant worked overtime on Saturday, January
from 4:30 a.m. to 12:30 p.m. continuing to perform winter maintenance work. The
overtime snowplowing on Sunday, January 24, 1999 from 3:30 a.m. to 11:00 a.m. Employe
Shillinger (a bargaining unit employe) was called in to work overtime on the same snow
route as Grievant on Sunday at 9:00 p.m. and worked until 4:00 a.m. on Monday,
January 25, 1999.
The Grievant returned to work at 3:45 a.m. on Monday, January 25, 1999 and worked until
on that same day performing snow plowing and winter maintenance work on the Grievant's
route. (Jt. 2, 3 and 4)
On January 28, 1999, Grievant submitted a grievance to Marathon County Highway
Commissioner Glenn Speich. The grievance stated that on January 24, 1999 a patrolman
should have been called first to see if he wanted to work the overtime shift from
9:00 p.m. January
24, 1999 to 4:00 a.m. Monday, January 25, 1999 before calling in other Highway
employes. (Jt. 2) The grievance was denied by the Highway Commissioner on February 1,
2) The grievance was appealed through various steps of the parties' grievance procedure and
denied by the Marathon County Personnel Committee on April 5, 1999. (Jt. 2) Grievant was
of this denial by County Personnel Director Brad Karger by memorandum to the Union on
1999. The Union appealed to arbitration on April 10, 1999. (Jt. 2)
No issue was raised at the hearing as to the arbitrability of the grievance. Hearing in
matter was held by the Arbitrator on July 21, 1999. Hearing closed at 11:15 a.m
POSITION OF THE PARTIES
The Union argues that employes under the job posting article of the labor agreement
to use their seniority to post for vacancies in the Marathon County Highway Department.
have traditionally included winter snow plow routes. The Union argues that the County does
dispute that the Grievant normally would have been given the opportunity to plow his
assigned route on January 24, 1999 from 9:00 p.m. to 4:00 a.m. Monday, January 25, 1999.
Union submits that the parties' labor agreement is either ambiguous (or silent) as to the
the benefit of "right of first refusal" for assignment to one's own shift for overtime purposes.
Union argues that there has been a past practice which is long-standing and is unequivocal
gives the employe normally assigned to a particular snow route the first opportunity to work
route or refuse the assignment. The determination as to fatigue, the Union submits, has
been left to the discretion of the individual employe.
The Union points out that although the Grievant would have worked 19 hours if he
worked the shift in question, two weeks prior to that on January 11, 1999 the Grievant
straight hours. The Union suggests that if there was a compelling safety concern by the
January 23 through January 24, why was there not such similar concern on
Citing arbitration labor treatise and case law, the Union submits that where a contract
ambiguous or silent, past practice can be used by the Arbitrator to ascertain whether under
of this case the custom and practice of working overtime may be enforceable to the County
there is no specific contract language in the labor agreement. The Union argues that it is
that long-standing practices can establish conditions of employment as binding as a written
of the labor agreement and that even where the contract is completely silent, with respect to
activity, the presence of a well-established practice may constitute in effect an unwritten
how a certain type of situation should be treated. Lastly, the Union argues that the benefit
in the instant case (right of first refusal) is supported by the custom and practice of the
that the grievance should be sustained by the Arbitrator. The Union asks that the County
Grievant with all compensation lost as a result of the alleged contract violation and that the
be directed to cease and desist from such conduct in the future.
The County argument makes two essential points. One, the County argues that under
2, Management Rights, there is clear and unambiguous authority vested in the County to
personnel, methods and means in the most appropriate and efficient manner possible," and
and direct the employees of the Department" and "take whatever action is necessary to carry
functions of the County in situations of emergency." The County takes a strong position that
County has the right to assign employes to perform work, including the assignment of an
to perform snow removal work on a particular section of highway regardless of whether the
is a State Patrolman who is designated to work on that particular section of highway. The
argues that the contract language is clear that there is nothing within the labor agreement that
interferes or restricts the County in making that assignment.
The second main argument of the County is that the Union cannot prove the existence
past practice which limits the right of Highway Department supervisors to select employes
assign work to employes. The County submits that the Union offered no convincing
any such alleged practice existed and that the Grievant admitted on the record that he was
various instances where another employe, other than the patrolman assigned to a section of
actually performed work on that section of highway. In citing the testimony of the Union
the County states that the Union offered no evidence to support a claim that a past practice
Both Union witnesses, the County avers, offered no testimony or proof that the Highway
administration was aware of or agreed with the position stated by the Union that each
guaranteed all overtime work on their section of highway. The County states that absent
by the Union of a mutually agreed upon practice, their past practice argument must fail.
As a third argument, the County argues that its decision to call in another employe to
snow removal work on Sunday, January 24, 1999 was reasonable and appropriate under the
circumstances. The County points out that Grievant worked 17.75 hours on Friday, January
then after only a 6 hour break worked 8 hours on Saturday, January 23. The Grievant then
7.5 hours starting at 3:30 a.m. on Sunday, January 24, 1999 and at that time the supervisor
previously assigned him to start work at 4:00 a.m. on Monday, January 25, 1999 and work
p.m. that day, a period of 11.5 hours. As a result it was reasonable for the supervisor not to
Grievant in to work a shift from 9:00 p.m. on Sunday, January 24, 1999 until the
morning at 4:00 a.m. knowing that the Grievant had been directed to report to work exactly
a.m. on Monday morning. Had Grievant worked the shift assigned to another employe, the
would have worked a total of 18.5 straight hours. Therefore, the County submits it was a
decision to have another employe work the Sunday evening snow removal hours as there
employes available to do the work. The County points out that it receives support for the
reasonableness of the supervisor's decision from the testimony of Grievant who testified that
his supervisor to find a replacement for him on Saturday, January 23rd,
after he had worked 17.75
Friday and 8 hours on Saturday. The County argues that safety considerations and
workers should come into play when assigning work to employes of the Highway
is what occurred in the situation of this particular Grievant and grievance.
For these reasons, the County requests that the Arbitrator should find that the Union
to meet its burden of proof of an alleged practice and find that the County has not violated
agreement. The County contends that the grievance should be dismissed.
The facts that brought this matter before the Arbitrator are not in dispute. (Jt.2)
issue of whether the County violated the collective bargaining agreement by not allowing the
to work the Sunday overtime are the issues of the right of the County to assign employes and
that right is limited by the collective bargaining agreement or by past practice of the parties.
It is clear
from the Management Rights clause that the County has the right to assign employes unless
is so limited. (Jt.1)
The Union did not introduce evidence of any clause of the labor agreement that
the right of the County to assign another employe to Grievant's snow removal section
giving the Grievant the right to refuse the offer of this overtime work. In other words, there
language in the labor agreement that specifically or even generally guarantees that an
have a "right of first refusal" as the Union describes it. From the testimony and the briefs of
parties, there does not seem to be agreement as to whether an employe is assigned to a
road for snowplowing or whether an employe bids for it. Articles 5 (Overtime) and 7 (Job
do not spell out any procedure for bidding for or being assigned the snow plowing routes or
However, I do not need to decide that question, if there is one, as it is clear from the record
employes normally snowplow one route and that is considered their regular route.
Having found that the labor agreement is silent, not ambiguous, on whether there is a
given to the employes to be offered overtime work on their route first before it is assigned to
employe, the Union must prove that right by other means. In this case, the Union argues
practice gave the Grievant the right to be offered the overtime work on Sunday, January 24,
The Union correctly cites various tenets of past practice law in its post hearing brief. There
dispute as to what a party must prove to establish a past practice which in this case would
be so well established as to become a provision of the parties' labor agreement. 1/ I find
that in this
case the Union has not established a past practice that gave the Grievant a right of first
overtime work on his regular route.
1/ Definition of past practice:
1) Clarity and consistency of the pattern of
2) Longevity and repetition of
3) Acceptability of the pattern
4) Mutual acknowledgement of the pattern by the
The Common Law of the
Workplace, Theodore J. St. Antoine editor, pg. 82 (1998), citing Richard
Mittenthal. Past Practice and the Administration of Collective Bargaining
Agreements, 59 Mich. L Rev.
The Union tried to establish past practice through the testimony of the Grievant. A
analysis of Grievant's testimony cannot and does not meet the aforementioned standards
to prove a past practice in this case. Grievant on direct examination testified that he never
anyone from County management say to any employe that the employe could not work his
route, as his supervisor told Grievant in this case. On cross examination, however, the
admitted that he did not know what happened on the other snow removal sections, that he did
keep track of the hours worked by other employes plowing snow, and that he only thought
employes were always offered the overtime first on their routes. Grievant also testified that
aware of other employes being called in to plow routes to which other employes were
is also clear that neither the Grievant nor the Union President, who testified in rebuttal, had
written document or any oral understanding with County management that employes would
offered a right of first refusal for overtime on their routes.
The only witness for the County was Highway Commissioner Speich. Speich
the County makes a reasonable effort to see that patrolmen are given the work on their road
or routes. Speich testified that there never has been any agreement or understanding with the
employes or the Union that employes will always be guaranteed the overtime on their snow
sections. Speich testified that how employes work during a snow storm depends on the
circumstances and each storm is different. Speich stated that how many hours employes
depends on the number of sections that must be plowed, the number of shifts it will take to
snow, the number of hours employes are and have worked and whether there are enough
to relieve people off their regular routes.
Grievant himself testified that he asked to be relieved on Saturday, January
23rd because he
was tired from plowing snow 17.75 hours on Friday, January 22nd
and 8 hours on Saturday, January
23rd. Speich further testified that he had conversations with Union
President King that while the
general feeling of the employes is that the practice is as the Union states it,
Speich testified that there is no guarantee that it will happen every time. I credit
and, although King on rebuttal could not recall the conversations on this subject with Speich,
admitted that he had never said to Speich that it was the Union's position that employes
always have the right of first refusal of overtime on their routes.
The Union offered evidence that on the weekend of January 11, 1999 the Grievant
worked a shift of 19 hours. This fact goes less to a past practice argument than to a
position as clearly one incident does not establish a past practice. Speich testified in
response to this
fact, which I will assume, that again it depends on the snow storm; there may be
there are no other employes available to relieve and employes do not like to be called out if
not going to get a full shift which often isn't known at 3:30 pm when the regular shift ends;
words the developing snow storm dictates the decisions of the supervisors. As to the
argument, it is not for me to make decisions about management actions unless they are
unreasonable. In this case, I find that it was reasonable for a Highway Department
decide that it was not safe to allow the Grievant to work almost a 19 hour shift, which would
given him only 21 hours off over four days. This is particularly true when all of that time
the wheel plowing snow. The County's safety concern was reasonable.
The Grievant and Union would like the employes to be able to determine when they
tired to drive and plow snow and when they will or will not work overtime. In this case and
this labor agreement and under these facts nothing gives them that right. Therefore, the
must be denied.
Based upon the foregoing and the record as a whole, I enter the following
The County did not violate the collective bargaining agreement when it called in
employe other than the Grievant to perform the snow removal work on Sunday, January 24
same section of highway that the Grievant works as State Patrolman. The grievance of the
Dated at Madison, Wisconsin this 20th day of September, 1999.
Paul A. Hahn, Arbitrator