BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY (SHERIFF'S
WISCONSIN PROFESSIONAL POLICE
EMPLOYEE RELATIONS DIVISION
Mr. Richard Thal, General Counsel, Wisconsin Professional
Police Association/LEER Division, 340 Coyier Lane, Madison, Wisconsin 53713, on behalf
of the Union.
Mr. Steven Rollins, Corporation Counsel, Manitowoc County,
1110 South Ninth Street, Manitowoc, Wisconsin 54220, on behalf of the County.
According to the terms of the 1998-99 collective bargaining agreement between the
Personnel Committee of the Manitowoc County Board of Supervisors (County) and
County Sheriff's Department employes represented by WPPA (Union), the parties requested
Wisconsin Employment Relations Commission appoint a member of its staff to act as an
arbitrator of a dispute between them regarding whether the Sheriff's Department is required
an eight-hour overtime shift and offer it in four-hour blocks of time to certain bargaining unit
employes. Hearing was scheduled and held on July 20, 1999, at Manitowoc, Wisconsin. A
stenographic transcript of the proceedings was made and received on July 28, 1999. The
their written briefs by September 3, 1999, which were exchanged thereafter by the
parties waived the right to file reply briefs.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to an issue or issues for determination herein.
the parties stipulated that the arbitrator could frame the issue based upon the parties'
and the relevant evidence and argument presented.
The Union's suggested issue was as follows:
Did the County violate Article 23, Section H, of the collective
bargaining agreement when,
on March 5, 1999, it failed to offer bargaining unit overtime to all qualified bargaining unit
If so, what is the appropriate remedy?
The County suggested the following issue for determination:
Did the County violate Article 23, Section
H, of the collective bargaining agreement when,
on March 5, 1999, it offered eight hours of overtime to non-bargaining unit employes after
unit employes had been offered and refused the eight hours of overtime as a block? If so,
what is the
Based upon the parties' suggestions, as well as the relevant
evidence and argument in this
case, I find that the County's issues reasonably state the dispute between the parties and they
be determined herein.
ARTICLE 23 OVERTIME
COMPENSATORY TIME HOLIDAY PAY
. . .
H. The employees and Association acknowledge that reasonable
overtime which is assigned must
be accepted. It is further understood and agreed that overtime shall be distributed as follows:
1. The last position vacated on each shift
will be filled first.
2. Bargaining unit positions will be first
offered to bargaining unit employees and management
positions will first be offered to management employees.
3. Bargaining unit overtime will first be offered to bargaining unit
employees of the same
classification by seniority as the vacated position on the same shift, secondly on the following
thirdly on the prior shift, and then to all other qualified bargaining unit employees.
4. Once overtime for bargaining unit
employees has been offered to and refused by all bargaining
unit employees, it may be offered to and accepted by non-bargaining unit employees.
once non-bargaining unit overtime has been offered to and refused by all non-bargaining unit
employees, it may then be offered to and accepted by bargaining unit employees.
5. Except for unusual circumstances, and
for Scuba, SWAT, Boat Patrol, Snowmobile Patrol,
and Emergency Government when scheduling overtime to be worked, employees will not be
to work more than eight (8) consecutive workdays.
. . .
The County and the Union have had a collective bargaining relationship for many
Union essentially represents non-supervisory employes who have the power of arrest. The
department operates overlapping shifts as well as regular shifts. The regular shifts are from
to 12 p.m.; 12 p.m. to 8 p.m.; and 8 p.m. to 4 a.m. The overlapping shifts are from 7 a.m.
to 3 p.m.;
10 a.m. to 6 p.m.; and 6 p.m. to 2 a.m. An officer who works an overlapping shift cannot
shift and also work the four hours necessary for a split shift.
During the late 1980s, there was significantly more overtime offered to bargaining
employes. This was true in part because the County had a policy of filling all vacancies and
it had a
higher minimum manning level on certain shifts, such as the afternoon shift, than is currently
Prior to the inclusion of Article 23 (H) into the collective bargaining agreement, the County
policy that overtime was to be offered so that it would be equally distributed among
employes, but this was only done at the discretion of the supervisor. Thus, if several days of
became available, the supervisor would have the option to pick the days that he/she wanted
and then offer the rest of the overtime to bargaining unit employes. The Union felt that this
unfair as supervisors were selecting the best days and leaving less desirable days (such as
for bargaining unit employes. The Union therefore proposed the language of Article 23 (H)
the eight-hour blocks of overtime would be offered to bargaining unit employes by seniority
equalize overtime hours and to verify who should be called and in what order. These
accepted by the
County and Article 23 (H) was placed in the 1989-90 contract. Although some minor
have been made over the years since the provision was placed in the agreement, those
have not changed the substance of the operative provision of Article 23 (H).
At a later time, the Union and the County discussed splitting overtime shifts during
negotiations. The Union proposed that the County offer bargaining unit employes four-hour
of overtime, thus splitting the shifts. The County resisted this proposal and it was ultimately
by the Union.
Since Article 23 (H) became a part of the contract, the County has consistently
following procedure to fill the vacant shifts. When a shift becomes vacant, the shift
bargaining unit employes on that shift that are off work that day, by seniority, and offers
hours of overtime; if those employes refuse the overtime or cannot be reached, the
calls all bargaining unit employes on the next shift who happen to be off-duty that day to
the eight hours of overtime; if all those employes refuse the overtime or cannot be reached,
supervisor then calls all bargaining unit employes by seniority on the shift prior to the
vacancy to offer
them the eight hours of overtime. If all those employes refuse the overtime or cannot be
County may then offer the eight hours of overtime to non-bargaining unit employes. If both
bargaining unit and non-bargaining unit employes refuse the eight hours of overtime, the
can then decide whether he/she will split the shift into four-hour portions and offer it to the
and off-going bargaining unit employes working the shifts surrounding the vacancy. It is the
supervisor's discretion to decide to split the shift, to fill a vacancy or to only fill a portion of
vacancy. After the decision is made by the supervisor to split the shift, the supervisor offers
bargaining unit employes on the oncoming and off-going shifts, by seniority, four hours of
1/ Also, according to practice, employes can
arrange with their fellow workers to receive time off by splitting
their own shift with the oncoming and off-going employes into four hour increments.
However, this must be done
with prior approval of management and without incurring overtime
On March 5, 1999, Officer Tisler called in sick for his 8 p.m. to 4 a.m. shift.
supervisor then contacted all bargaining unit officers, by seniority, as described in
Article 23 (H), to
see if they would take the eight-hour shift. The supervisor decided not to split the shift.
a non-unit employe, Sargent Schetter was offered and worked the eight hours of overtime
by Tisler's absence on March 5, 1999, because all bargaining unit employes had refused the
hours of overtime. It is undisputed that the supervisor, in his discretion, could have split
vacated by Officer Tisler, and that the supervisor chose not to split the shift.
In May 1999, it appears that there were split shifts worked by various officers on
May 29 and
May 30, 1999. On June 7, 25, and 26, 1999, shifts were also split by the decision of the
involved. On June 25 and 26 those split shifts were worked by bargaining unit employes,
while non-bargaining unit employes worked the split shifts available on June 7, 1999.
POSTIONS OF THE PARTIES
The Union argued that the contract requires the County to offer overtime
bargaining unit employes before it offers these to non-bargaining unit supervisors. Full
with the contract, therefore, requires the County to split shifts to fill the time with bargaining
employes rather than non-bargaining employes, in the Union's view. The Union argued that
bargaining history and past practice can not be admitted to change the clear and unambiguous
language of Article 23 (H). In this regard, the Union asserted that the general language of
Management Rights is superceded by the express and more specific language of
Article 23 (H).
The fact that in the past, non-bargaining unit employes have taken bargaining unit
not constitute a waiver of the clear language of Article 23 (H). The Union asserted that
County has followed portions of Article 23 (H), it has not offered overtime to "all other
bargaining unit employees" as the final step before offering overtime to non-unit employes.
the County has willingly split shifts in the past, bargaining unit employes working the shifts
and after the eight-hour overtime opening on March 5th should have been
offered four hours of
overtime once the supervisor decided to fill the overtime shift. If the County had done this,
argued, the contract would have been fulfilled by having bargaining unit employes receive
before any offer is made to non-unit employes. Thus, the Union contended that the County
split shifts even if it is inconvenient for them to do so. Because the Union never agreed to
practice used by the County to offer overtime as demonstrated in this case, the Union
the evidence of past practice should be disregarded in this case.
Finally, the Union urged that it is irrelevant that the Union attempted and failed ten
to get agreement from the County to split eight-hour overtime shifts into four-hour pieces.
Union noted that the County now splits shifts voluntarily for various reasons and that there is
reason not to split shifts in the situation presented by this case and in future cases like it.
the Union sought an award stating that overtime should be offered in the future to all
bargaining unit employes, even if this requires that the County offer overtime to officers
shift before and after the vacant shift. The Union sought no monetary remedy regarding the
5, 1999, overtime shift opportunity.
The County noted, initially, that the contract does not require it to split eight-hour
shifts. In addition, the County noted that the right to fill vacant shifts or to split shifts is a
management right expressly reserved to the employer. The County noted that the Union
that it is up to the supervisor to decide whether to split a shift or not and whether to fill a
or to partially fill it. Thus, in the County's view, the employer cannot be compelled to split
In this regard, the County noted that the Sheriff possesses a constitutionally protected right to
manage the Sheriff's Department and that this power of the sheriff cannot be abridged by
or an arbitration award. In any event, the County asserted that the method it used to fill the
5th vacancy was based upon a long established past practice which is
consistent with the collective
bargaining agreement herein.
The remedy requested by the Union, in the County's view, would violate the express
of the contract. In this regard, the County noted that Article 23 (H) indicates that the
offer the overtime opportunity to employes on the same shift, then the shift following, then
to the shift
prior to the vacancy and thereafter to all bargaining unit employes. The Union's requested
seeks that the County add another step to the process of filling the eight-hour vacancy which
expressly described anywhere in the labor agreement.
In addition, the remedy sought by the Union was in fact rejected by the parties at the
bargaining table approximately ten years ago. In this regard, the County noted that the
attempted to have four-hour split shifts described in the procedures contained in the collective
bargaining agreement but the County never agreed to this approach and no language was
the contract on this point. Thus, the County urged that the grievance be denied and
dismissed in its
The Union has argued that the County's actions in offering the overtime available on
5th violated the contractual phrase ". . . and then to all other qualified
bargaining unit employees."
I disagree. In my view, the record clearly shows that the County followed Article 23
(H) and past
practice in filling the vacancy created by Officer Tisler's March 5, 1999 illness, by calling
bargaining unit employes on Tisler's shift and then calling bargaining unit employes on the
and the shift after Tisler's. There is no dispute that the supervisor involved followed Article
and failed to find any bargaining unit employe on the various shifts willing and able to fill
the eight-hour vacancy. It is also clear that bargaining unit employes working on
overlapping shifts could not
have filled the eight-hour vacancy according to past practice which prohibits employes from
more than 12 hours without rest. Similarly, the contract does not require the County to offer
overtime opportunity to employes on leave or who are absent due to disability. Thus, the
was insufficient to show that the County's actions violated Article 23 (H)(3).
It is significant that the contract fails to require the County to split overtime shifts.
the admissions by witnesses herein support a conclusion that a shift supervisor has unfettered
discretion, after unit employes on the listed shifts in the contract have refused the overtime
available, to split the shift or to refuse to do so. In addition, Article 23 (H)(4) specifically
non-unit employes may be offered unit overtime after unit employes have refused it. Thus,
contract language is clear on these points.
Evidence of bargaining history also fully supports the County's arguments herein.
is undisputed that the Union sought to insert language requiring the splitting of eight-hour
four-hour shifts in the late 1980s and that the Union failed to gain this language in
Finally, the evidence of past practice shows that where overtime is concerned, the County
at least the last decade, used its discretion to split or not to split overtime shifts without
complaints from the Union. The fact that employes are allowed to split their own shifts in
get time off involves an issue not before this Arbitrator. However, I note that when such
splitting is done, it must be with the prior approval of management and it cannot create
In all the circumstances of this case, the Union has failed to prove that a violation of
agreement or past practice occurred on March 5, 1999, when the County filled Officer
with Sargent Schetter. Based on the relevant evidence and arguments herein, I issue the
The County did not violate Article 23, Section H, of the collective bargaining
when, on March 5, 1999, it offered eight hours of overtime to non-bargaining unit employes
bargaining unit employes had been offered and refused the eight hours of overtime as a
grievance is, therefore, denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 24th day of September, 1999.
Sharon A. Gallagher, Arbitrator