BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE ASSOCIATION OF MENTAL
Mr. John S. Williamson, Jr., Attorney at Law, 103 West
College Avenue, Suite 1203, Appleton, Wisconsin 54911, appeared on behalf of the
Ms. Charmaine J. Klyve, Attorney at Law, Deputy Corporation
Counsel, Rock County, 51 South Main Street, Janesville, Wisconsin 53545, appeared on
behalf of the County.
On January 22, 1999, the Association of Mental Health Specialists and Rock County
requested that the Wisconsin Employment Relations Commission appoint William C.
member of its staff, to hear and decide a grievance pending between the parties. Hearing on
matter was conducted on March 5, 1999, in Janesville, Wisconsin. A transcript of the
was prepared and distributed by March 19, 1999. Post-hearing briefs were submitted and
by May 14, 1999.
This Award addresses on call pay for certain bargaining unit employes.
BACKGROUND AND FACTS
Prior to April of 1997, Professional Human Services staff employed by Rock County
represented by three separate unions, in three separate collective bargaining units.
1266 represented Child Protective Services workers. The Teamsters Union represented
Workers, and the Association of Mental Health Specialists represented
Mental Health Counselors, Community Support Program Workers and some Nurses.
statutory requirements that certain juvenile services be available 24 hours a day, 7 days per
Week, which resulted in on-call systems being established. The County had
bargaining agreements with the Machinists, the Teamsters, and AMHC, each of which had
on-call provisions, including methods of payment.
The County initiated a Unit Clarification petition, which resulted in the consolidation
three bargaining units into one. Pursuant to a Wisconsin Employment Relations Commission
conducted election, AMHC was certified as the exclusive representative of all of the
employes on or about April 21, 1997. The parties, AMHC and Rock County, thereafter
negotiations for a successor collective bargaining agreement. Those negotiations concluded
about June 2, 1998. The term of the initial contract was January 1, 1996 through
1997. On or about August 6, 1998, the parties executed a successor agreement whose term
January 1, 1998 through December 31, 1999. The 1998-99 agreement was essentially
its predecessor, with the parties modifying only the salary and mileage provisions.
In the negotiations leading to a consolidated collective bargaining agreement, the
proposed that the after-hours intake language, and payment schedule, be taken from the old
Machinists' contract. That language, which is set forth below, was accepted by the
modification, as follows:
. . .
ARTICLE XV HOURS OF WORK,
CLASSIFICATION, PREMIUM PAY
15.08 An after hours intake procedure for Protective Services
and Juvenile Justice and all
those employees whose job duties include carrying a pager is established in accordance with
After hours are designated as:
Monday, 5:00 pm to Tuesday, 8:00
am (15 hrs.)
Tuesday, 5:00 pm to Wednesday, 8:00
am (15 hrs.)
Wednesday, 5:00 pm to Thursday, 8:00
am (15 hrs.)
Thursday, 5:00 pm to Friday, 8:00
am (15 hrs.)
Friday, 5:00 pm to Saturday, 5:00
pm (24 hrs.)
Saturday, 5:00 pm to Sunday, 5:00
pm (24 hrs.)
Sunday, 5:00 pm to Monday, 8:00 am (15 hrs.)
A. All Non-Nursing Professionals will be trained to
perform intake duties. The County will
provide in-house training at no cost to the employee.
B. Pagers will be provided by
the County to all employees on call during after-hours.
C. An initial schedule will be
established covering a minimum three (3) month period of time.
Such schedule may be lengthened to meet the needs of the employees. Using seniority,
employees who have been trained may sign up for after-hours duty on a daily or weekly
for any after-hours shifts during the schedule period. The maximum number of days
scheduled in succession will not exceed seven (7) days. If no employee signs up for on-call
duty, employees will be assigned on a rotating basis starting with the least senior employee.
D. In addition to the normal
scheduled work hours, employees will be paid $3.41 per hour for
hours they are on-call. Employees will be paid $3.41 per hour for hours they are on-call on
E. Employees required to
respond to after-hours intake duties during their off hours shift will
be paid at the applicable overtime or compensatory times rate, however, no less than a
minimum of one (1) hour.
F. A back-up pool of
volunteers will be established to provide coverage if the employee
scheduled cannot be available.
. . .
Tracey Mayer, a member of the Union's negotiations teams, who was formerly
the Machinists' agreement, testified as to how the language was administered under the
agreement. According to Ms. Mayer, Section 15.08(E) resulted in an employe being paid a
of one hour for any phone call received while the employe was on call. Whether the call
minutes or 45 minutes, the employe was guaranteed one hour pay, at the applicable rate. If
exceeded one hour, the individual was paid for actual time worked, rounded to 15 minute
If an employe received two phone calls, either within the same hour or at a greater interval,
hour minimum was guaranteed for each call, regardless of duration. If an employe received
within an hour, and both calls related to the same family, there was no duplication of the one
guarantee. Mayer testified that this system existed for a number of years, and was
a series of supervisors.
Mayer's testimony was corroborated by Sally Biddick, the Child Protection Services
Manager. Biddick, a supervisory employe, authorized the overtime described by Mayer.
confirmed that employes who submitted bills calculated on a per call basis (as described by
were so compensated. However, Biddick further testified that there were some workers who
not to bill the County for all of their calls, but rather kept track of their hours worked and
claim for actual hours. Mayer and Biddick were the only witnesses who testified with direct
knowledge of the practice.
John Moldenhauer, another member of the Union negotiating committee, testified.
Moldenhauer is a Juvenile Probation Officer, who was formerly in the bargaining unit
the Teamsters. It was Moldenhauer's testimony that during the course of bargaining, the
acknowledged to one another that Section 15.08(E) would be implemented in the same
manner it had
been implemented under the Machinists' agreement. Moldenhauer testified that the holiday
found in paragraph 15.08(D) was drawn from the Machinists' agreement. The rate was not
and for certain members of the bargaining unit was reduced. Moldenhauer testified that
then-chief negotiator for Rock County, indicated that if the Machinists' on-call language were
to all bargaining unit members, it would represent an increased cost to the Employer.
Moldenhauer, the Machinists' on-call language was the quid
pro quo basis for the $3.41 per hour
It was Ms. Mayer's testimony that the County never indicated it would change the
administration of the Machinists' language. She further testified that there was a discussion
Mr. Long relative to how the language was historically administered, and that there was an
expectation that that administration would continue. She testified that the process then in use
discussed and clarified. Mayer acknowledged that there were inconsistencies relative to how
were paid under the Machinists' contract. Moldenhauer testified that the exchange at the
table was essentially to the effect that the language would be implemented in exactly the
as the Machinists' language had been previously implemented. Moldenhauer did not recall
examples having been given.
Donald Mulry, the Director of Human Services, was a member of the Employer
team who testified as to the exchange in negotiations. According to Mulry, there was no
discussion or examples relative to the implementation of Section 15.08(E). Mulry indicated
Employer never indicated that it would apply 15.08(E) as it had previously been administered
Nancy Fennema, the Deputy Director of the Human Services Department, was also a
of the management bargaining team. Fennema testified that there were no examples
given on the administration of Section 15.08(E). Fennema could not recall the
Union indicating to
the County that it expected the provision to be implemented as it had been under the prior
involving the Machinists.
From June 2 through July 21, 1998, the language in question was administered
the status quo, described above.
That administration ended upon the issuance of a memo by Mulry,
dated July 21, 1998, which provided the following:
Based on our meeting on Monday, July 20, 1998, the following
procedures will be implemented
immediately to carry out the intent of 15.08 item E. "Employees required to respond to
intake duties during their off hours shift will be paid at the applicable overtime or
rate, however, no less than a minimum of one (1) hour."
On-call intake employees will record the
actual time worked, both the start time and end time,
on the prescribed forms. Payment will be based on the total aggregate time worked and not
number of calls or times called out.
Employees will be reimbursed at time and
one-half for time worked, with a minimum of one (1)
hour for each day assigned for on-call for the designated time on-call, e.g., Monday,
5:00 p.m. to
Tuesday, 8:00 a.m. (15 hrs.) or Friday, 5:00 p.m. to Saturday, 5:00 p.m. (24 hrs.).
The on-call employee shall designate the
on-call time sheet whether they wish overtime payment
or compensatory time.
A unit meeting was conducted on July 31, 1998. A portion
that meeting was devoted to
interpretation of the Mulry memo, and an explanation as to how it would be implemented.
official minutes summarizing that portion of the meeting provide as follows:
. . .
2. Contract update information;
The language in the current contract has not
changed from the previous contract with 1266.
Compensatory time is NOT a compensation option; the compensation is $$ only. Under
15.08 of the current contract, Section E. the key words are PAID and RATE. Regarding the
memo from Don
Mulry, the AFTER HOURS SW expressed
that RATE does not equal TIME and the consensus
was that the interpretation of monetary compensation appears to be more in line with the
Clarification was also made regarding
how/what is compensated per the memo and Executive
Staff decisions. All first responses in a shift would be paid at 1. hour of overtime,
regardless of the
time involved in processing the information (refer to 3rd paragraph of Don's memo). If it
longer than 1 hour to complete the paperwork, additional time will be paid according to
worked rather than in full hour increments. Additionally, if more than one referral is
received in 1
hour, the second referral is NOT billed as a NEW hour, it is included in the same hour as
referral, unless completion of the second referral spills over into the next hour in which case
additional time is billed in actual time spent, and not rounded up into a 1 hour increment.
have always billed this way, and so there is no change; for others, this is a change. Any
referrals that are received in a given shift (after the first AFTER HOURS response) are
billed in actual
time spent. For example: if a SW initially receives an INTAKE, that takes 25 minutes to
including paperwork, that would be billed as 1 hour of overtime. Any referrals received
after that will
be billed in actual time spent, rather than in 1 full hour for each new referral (as was past
On September 2, 1998, the Association filed a grievance which contends "Memo of
varies from current practice of after-hours payout. Procedures for implementation of 15.08
with current practice of claims made and payout of hours." The grievance seeks a return to
The grievance was appealed and ultimately denied by a January 13, 1999 letter from
Gruber, Assistant to the County Administrator. Gruber's letter provides the following:
Dear Mr. Williamson:
This matter was considered during our
discussions on January 6, 1999, at 1:30 p.m. in the Rock
County Courthouse. The subject matter of this grievance involves a dispute concerning the
interpretation of Article XV Hours of Work, Classification, Premium
Pay, specifically at Section
15.08, After Hours Intake Procedure, as it relates to compensation practices. As
stated by the
parties, this specific issue was the subject of extensive discussion during the recently
collective bargaining negotiations. Based upon a conclusion of those negotiations,
implemented a compensation system for on-call after
hours intake workers in the Protective
Services and Juvenile Justice divisions of the Department
of Human Services which is now being contested. The remedy to this dispute proposed by
is to revert to the compensation practice in place prior to the ratification and execution of the
collective bargaining agreement. Management has argued that their compensation practice
hours on-call work is structured in a manner consistent with provisions of sections 15.08(D)
15.08(E) of the current collective bargaining agreement as negotiated. They have further
by virtue of those negotiations specific to these sections any past and related practices to the
are rendered null.
In addressing these issues, the argument of past practice will be
addressed first. An impressive
line of arbitral thought holds that a possible basis for upholding the refusal to continue a
a finding that any binding status of the practice ended through the give and take of
bargaining. In this
case, the parties acknowledged that extensive and hard-nosed negotiations ensued before
agreement on the language contained in Article XV and specifically at Sections 15.08(D) and
15.08(E). A review of the negotiation discussion notes allows a plausible argument to be
the collateral effect of changes to the then compensation practice was revealed by the parties
the give and take process of collective bargaining. And such revelations notwithstanding, the
ultimately agreed to the language as contained in the current agreement. On this basis, the
practice cannot be considered binding in my view, and is thus null and void.
With the matter of past practice so
disposed, we address the principal question of how
compensation is determined. Section 15.08 of the current agreement provides for the
compensating Protective Services and Juvenile Justice staff for after hours on-call service.
enumerates a methodology for compensating individuals when they are servicing in a pager
on-call capacity in Section 15.08(D). This Section provides that those subject individuals
will be paid
$3.41 per call for on-call hours outside of the normal scheduled work hours. It goes on to
they are compensated at the same rate for their on-call service when such service is rendered
holidays. Separately enumerated Section 15.08(E) provides that employees required to
after-hours intake duties during their off-hours shift will be paid at the applicable overtime or
compensatory times rate, however, no less than a minimum of one (1) hour.
Given the differing purposes of each section, it is reasonable to
argue that they have been
enumerated separately in order to preserve the integrity of their independent application.
15.08(D) is intended to compensate an affected employee for the burden of carrying a pager
being available, that is, on-call. Separately, Section 15.08(E) provides a method of
that on-call individual when they are actually required to ". .
.respond to after hours intake duties
during their off hours shift. . ." (emphasis added).
Given this construction, it is determined that
the Department has not violated provisions of the
contract and is correct in it application of these provisions. As such, the grievance is denied.
Should you disagree with this determination,
certain rights of appeal exist. You may wish to
consult the current collective bargaining agreement to determine the exact nature of those
The parties were unable to stipulate as to the issue.
The Union believes the issue to be:
Did the County violate the collective bargaining agreement when
it issued the Mulry memo of
July 21, 1998 and made payments pursuant to it? If so, what is the appropriate remedy?
The County believes the issue to be:
Did the County violate the plain language of Section 15.08(E)? If
so, what is the remedy?
The parties specifically waived any procedural or timeliness objections.
POSITIONS OF THE PARTIES
It is the position of the Association that Section 15.08(E), which governs pay for the
employes who perform intake duties, is not clear on its face. The Association contends that
construction of the language is truer to the words used and is consistent with how both sides
understood the Article to be administered. The Association contends that the County's
of 15.08(E) cannot be derived from the language of the contract because the
clause does not distinguish between the first response and subsequent responses.
Nothing in the
language suggests that there will be a difference in payment because there is a second
the same hour.
The Association attacks the County's construction of the clause, contending that there
explanation offered as to why an on-call employe should receive greater pay for the first
may last for a period of considerably less than an hour, than for the second, third, or fourth
that may last for almost an hour. The Association attacks the County's differentiation of a
call received within the same hour as the first. A second response within the same hour as
response is not relevantly different from one occurring outside of that hour. In contrast, the
Association contends that its interpretation which treats responses equally without regard to
order is rational; for the order in which the response is made does not affect the amount of
employe must perform or the value of that work to the County.
The Association attacks Mulry's July 21 memo. The memo provides pay guarantees:
". . .for
each day assigned for on-call. . ." The Union contends that the contract requires an employe
respond to be eligible for pay. In the Association's eyes, the Employer's clarifying memo
the County's contention that the language in question is clear and unambiguous. The
goes on to note that Mulry testified that he was aware of inconsistencies in the application of
15.08(E) prior to, and during the course of negotiations leading to the 1996-97 collective
agreement. Despite this knowledge, Mulry did nothing to end these inconsistencies nor to
existence to the bargaining table after the 1996-97 agreement had been executed. The Union
contends that no employes, either before or after the memorandum, have been paid in
with Mulry's memorandum.
The Association contends that County officials who administered the clause and the
of on-call employes support the Association's interpretation of 15.08(E). Mayer testified as
this system operates. She further testified that all of her supervisors administered the on-call
provision in this fashion. Biddick, a supervisor, corroborated Mayer's understanding as to
method of payment. According to Biddick, there were individuals who chose not to bill the
for all hours possible under the terms of the contract. The Association points to the minutes
July 31, 1998 meeting, which read:
". . . Any referrals received after that will be billed in actual time
spent, rather than in one full
hour for each new referral (as was past practice)."
The notes, written by a supervisor, confirm both the existence, and definition of the
The Association contends that the bargaining history demonstrates that despite
about overtime pay, no County negotiator informed the Association that the County intended
reduce the rate the majority of the employes subject to the language of Section 15.08(E) had
The Association contends that even a successor employer and Union are bound by
predecessor's practice. Moreover, this practice continued under the 1996-97 collective
agreement between the parties, which was executed on June 2, 1998. In light of that fact,
contention that a prior practice was effectively terminated is without merit.
It is the County's position that Section 15.08(E) is clear and unambiguous, and
subject to interpretation by an arbitrator. It is the primary task of the arbitrator to enforce
meaning of the words used by the parties. It is the Employer's obligation to pay no less than
hour's pay to employes who must respond to after-hours intake. Mulry's memo
The AMHS Human Services bargaining unit is a newly-created unit. It is the
contention that there can be no past practice between this newly-created bargaining unit and
County. Nothing from the record allows for the importing of a practice from one bargaining
another. The past practice in the Machinists unit became defunct with the recognition of the
newly-created unit. The County cites a prohibited practice decision including these same
County, Case 304, No. 55533, MP-3345, Dec. No. 29211-A, Crowley, 4/98) for the
"It is undisputed that the parties are negotiating the initial contract
for the Human Services
Department bargaining unit so there is no agreement nor past practice with respect to this
Finally, the County argues that whatever past practice may have existed was neither
established nor consistently applied. To be recognized as binding on both parties, a practice
(1) unequivocal; (2) clearly enunciated and acted upon and (3) readily ascertainable over a
time as a fixed and established practice accepted by both parties. Here, notes the Employer,
parties were negotiating their initial contract. Furthermore, the County points to testimony
payments under the Machinist agreement were inconsistent.
The initial question presented for decision is whether Section 15.08(E) is ambiguous.
clause provides that ". . .no less than a minimum of one (1) hour. . ." will be paid, a
minimum payment. The question presented is whether that minimum constitutes a
per response, or a per off-hours shift, minimum. I believe the provision to be
ambiguous in this
respect. The guarantee is contained in the same sentence that establishes the after-hours
compensation. The compensation is what is guaranteed. There is no dispute that Section
directs payment for after-hours intake duties on a per call basis. That is, an employe who
one call is paid for that call; an employe who receives three calls is paid for each of those
calls. It is
a logical reading of the sentence that the guarantee be expressed on the same basis as is the
compensation to which it refers. However, the employer contends that the guarantee is for
composite of all calls taken. The final clause is sufficiently ambiguous to tolerate such a
This ambiguity suggests an examination into how the parties have applied the words.
The parties dispute the existence of a practice. I believe there exists a practice which
a definition as to how these parties construed the words of Section 15.08(E). Only two
one from the bargaining unit and one supervisor, with direct knowledge of how these calls
compensated, testified. Both witnesses testified that employes who requested per call
were so paid. Each testified that not all employes did so. Thus, a mixed compensation
However, that does not negate the fact that employes who sought to be paid per call were so
This practice extended over a number of years, and with the direct knowledge and approval
supervisors. There is no evidence in the record that such a compensation request was ever
The Employer prepared minutes from the unit meeting of July 31, 1998 refer to the
compensation system as a "past practice". I do not suggest that by characterizing this
as a practice the Employer has acknowledged and/or acquiesced to its status as such. I
observe that employes and supervisors alike understood the phenomena to constitute a past
Gruber's memo, denying the grievance, acknowledges the existence of a past practice.
It appears that certain employes believed it to be inappropriate to bill short calls on a
basis, and chose not to do so. That does not negate the right of other bargaining unit
insist upon compensation pursuant to the terms of the collective bargaining agreement, as
There is a dispute between the parties as to whether a practice which existed in a
bargaining agreement between the Machinists and the County can be transported, along with
parent language, to an entirely different collective bargaining agreement, where one of the
is not common. It is noteworthy that the objecting party, the Employer, is common to the
agreements. Rock County was a signatory to the contract with the Machinists that contained
language and its practice. AMHS, the party seeking enforcement, was not such a signatory.
The County opposes the importation of such a practice. It cites a very current
practice decision rendered between these same parties, authored by Examiner Crowley, for
proposition that such a practice may not be transported. I do not believe the Crowley
decision to be
applicable. The case arose following certification of AMHS as the bargaining agent for the
consolidated bargaining units. The time frame was the hiatus following expiration of the
contracts, but prior to the negotiation of the initial consolidated unit agreement between
the County. The Association claimed that the County's refusal to permit employes from the
Care Center (previously a separate and distinct bargaining unit) to take off work in pay status
represent Human Services Department employes constituted a violation of the County's
to maintain the status quo pending the successor
agreement. Dismissing the Association's claim,
Examiner Crowley found as follows:
Section 111.70(3)(a)4, Stats., requires the County to bargain
good faith with the
Association and such obligation includes the duty to maintain the status
quo and not make any
changes in wages, hours or conditions of employment of employes after a unit has been
Association claims that by refusing time off and pay to Association representatives, the
County is not
bargaining in good faith. The obligation of the County to pay representatives time spent for
negotiations or in grievance handling is a mandatory subject of bargaining. It is undisputed
parties are negotiating the initial contract for the Human Services Department bargaining unit
is no agreement nor past practice with respect to this unit. The Association is relying on the
of the Health Care Center contract which is not applicable to the Human Services
bargaining unit. The Association is advocating the language of a collective bargaining
provide benefits to an entirely different bargaining unit.
It is in this context that Crowley's remark that "there is no agreement nor past
respect to this unit" was made. Examiner Crowley ruled that the Union could not claim that
contractual provision in the Health Care Center bargaining unit had become the
status quo, or past
practice, applicable to the overall Human Services Department bargaining unit. That
clearly distinguishable from the situation presented in this proceeding. This dispute does not
the status quo during a hiatus, nor
does it involve an attempt to apply the provisions of a collective
bargaining agreement to a group of employes not covered by that agreement.
In this dispute, the County and the Association took the words of the Machinists'
verbatim. The Association, which had a former member of the Machinists unit who had
under the system, on its bargaining team, was the moving party. The Employer, which was
signatory to the same provision under its prior agreement with the Machinists, was the
the proposal. The Employer had no one with direct knowledge of the operation of the
system on its
team. However, it had access to its supervisors, and team member Mulry knew that there
inconsistencies in the pay application under the clause. Under these circumstances, the
to incorporate those same provisions into their successor contract.
There is a dispute as to the bargaining table exchange that led to the parties' adoption
provision. Common to the Association witnesses' testimony is that there was a significant
where the Association let it be known that it expected the practice to accompany the
language. Association witnesses testified to a conscious exchange and discussion specific to
in dispute, and sufficient to secure the Association's urged construction of the language. The
of the Employer-called witnesses testimony was to downplay the scope and extent of
discussion. Common to the Employer witnesses was the claim that there were no examples
as to how the language was to be administered.
I believe there was sufficient bargaining table discussion to put the Employer fairly
that the language brought with it its prior administrative practice. Moldenhauer testified that
of the quid pro quo exchange for the
Machinists' language was an actual reduction in the level of
holiday pay. According to Moldenhauer, there was an Employer acknowledgement that the
Machinists' language, applied across the board, would be expensive. No Employer witness
contradicted or excepted to Moldenhauer's testimony. If anything, the Gruber memo denying
Association's grievance, lends support to the Association claim that there was a healthy give
at the bargaining table.
The language in question became an effective part of a successor agreement on June
Between June 2 and July 21, 1998, the language was administered as it had been previously.
context of this administration was that the parties were in the midst of negotiations for yet
contract. If the Employer believed that there was no practice under the prior agreement, or
whatever practice existed had been terminated by the change in bargaining units, change in
of the Union, or in the negotiations, its behavior in continuing to implement the practice
post-ratification and during the period of negotiation of a successor agreement sent a
Mulry's memo was issued on July 21, 1998. Its issuance fell between the June 2
of the 1996-1997 agreement and the August 6 execution of the 1998-1999 collective
bargaining agreement. The record is unclear as to the number of bargaining sessions
during the summer of 1998, and whether they fell before and/or after July 21. Nothing in
suggests that Mulry's memo was brought to the Association during the pendency of
presented to the Association for reaction.
By July 21, 1998, the parties had transported the Machinists' language into their new
collective bargaining agreement. There was a quid pro
quo exchange for its benefits. The provision
had continued to be administered as in the past. The administration constitutes an
a written provision of the agreement. There is no indication the Mulry memo was the
negotiations between the parties. Under these circumstances, the County is not free to
terminate the interpretative practice, and alter the construction of the collective bargaining
The grievance is sustained.
The County is directed to reimburse employes for the wages, and any other
as a result of the change in administration of Section 15.08(E).
Pursuant to the agreement of the parties' the undersigned will retain jurisdiction of
for purposes of resolving any dispute as to remedy.
Dated at Madison, Wisconsin this 27th day of September, 1999.
William C. Houlihan, Arbitrator