BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LAKEVIEW EMPLOYEES LOCAL 1403,
WCCME, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Robert B. Taunt, Personnel Director, LaCrosse County,
appearing on behalf of the County.
Lakeview Employees Local 1403, WCCME, AFSCME, AFL-CIO, herein the Union,
requested the Wisconsin Employment Relations Commission to designate a member of its
staff as an
arbitrator to hear and to decide a dispute between the parties. LaCrosse County, herein the
concurred with said request and the undersigned was designated as the arbitrator. Hearing
in LaCrosse, Wisconsin, on April 6. 1999. No transcript was made of the hearing.
briefs were exchanged on June 29, 1999. On July 12, 1999, the undersigned was informed
parties had agreed not to file reply briefs.
The Union framed the issues as follows:
Did the County violate the collective bargaining agreement,
specifically Section 17.04.1,
by limiting the number of employes who exchange workdays and/or by limiting the number
employes who have other employes work for them? If so, what is the appropriate remedy?
The County framed the issues as follows:
Has LaCrosse County violated the collective bargaining
agreement by denying the use of a
benefit day by an employe when there were uncovered work shifts? Has LaCrosse County
the collective bargaining agreement by denying the "give away" of days by employes? If
there is a
violation, what remedy is appropriate?
The parties stipulated that the undersigned would frame the issues in his award. The
believes the following to be an accurate statement of the issues:
Did the County violate the contract either by limiting the
number of employes who seek to
use a benefit day and have other employes work for them, or, by denying the giving away of
time by employes? If so, what is the appropriate remedy?
The County operates the Lakeview Health Center. The instant matter involves three
of Lakeview. Two of those employes, Jane Hendrickson and Jane Wiemerslage, requested to
time off on December 26, 1997, which was a scheduled work day for both of the employes.
employe, Nancy Smith, requested to have time off on January 1, 1998, which was a
workday for her. Each of the three employes had arranged for another employe to work
on the day on which the employe requested to be off. At the time the requests for time off
submitted, all three grievants were working on the day shift. On her request for time off
Wiemerslage requested to take a benefit day (holiday) on December 26, 1997, and she
Victoria Hanke would work in her place. On her request for time off form, Hendrickson
the use of a benefit day (holiday) on December 26, 1997, and indicated that another
Rebecca Vostad, would work in her place. On her request for time off form, Smith
requested the use
of a benefit day (holiday) on January 1, 1998, and indicated that another employe, Kelly K.,
work in her place. All three of the requests were denied on the basis of an existing staff
Each of the employes grieved the denial.
In addition to Section 17.04 of the contract, the County has had a scheduling policy
Lakeview facility since March of 1987, and the current version of the policy has been in
November 30, 1994. Certain parts of that policy provide for a maximum of 5 time off
AM/PM shift on Monday through Friday and 2 requests per AM/PM shift on Saturday,
Holidays from resident aides, which was the job classification held by all three of the
December of 1997. The policy also allows employes to exchange work days within a posted
schedule, if they find another employe to make the exchange. The policy further states that
exchanges are allowed, days may not be given away. Said policy has been communicated to
Union both verbally and in writing.
An employe can seek to get time off in the following ways: (1) Trades of work time
another employe are not denied by the County when the proper procedure is followed, since
are not restricted by staff shortages; and, (2) Requests for the use of an accrued benefit day,
a vacation day or a holiday, and naming another employe who is willing to work the
employe's shift, although approval of these situations may be contingent on staffing levels.
employe is not allowed to give away shifts.
When the requests from Hendrickson and Wiemerslage were received, there were 6
shifts on days (reduced to 3½ through telephone contacts and volunteers prior to
December 26), 3
uncovered shifts on PM's and 1 uncovered shift on nights for December 26, 1997.
When the request from Smith was received, there were 4 uncovered shifts on days
to 0 through telephone contacts and volunteers prior to January 1), 3 uncovered shifts on
a ½ uncovered shift on nights for January 1, 1998.
POSITION OF THE UNION
The Union contends that an employe may be willing to work extra hours to help a
whereas the same employe may not be willing to work extra hours if asked by management.
contract does not have a mandatory overtime provision, therefore, employes, who are called
if they will work extra hours, have the ability to turn down the overtime. Thus, the situation
arise where an employe has found a co-worker to work in the employe's place, but the first
request to use an accrued benefit day is denied because of alleged staff shortages and the
can refuse the extra work when called by management. Under this scenario the County has
gained because the co-worker did not come in to work to help alleviate the shortage and the
has lost by not being allowed to use a holiday. The Union requests the arbitrator to sustain
grievances and to allow employes to replace themselves with off-duty personnel while they
utilizing accrued paid time.
POSITION OF THE COUNTY
The County contends that none of the grievances come under Section 17.04 of the
because said provision applies only to an exchange of workdays by employes, whereas none
situations grieved herein involved an exchange or trade of workdays.
Section 2.01 of the contract reserves to the County the right to adopt and enforce
rules and regulations. The County's policy limiting the number of requests for time off by
prohibiting the giving away of work days falls within the language of Section 2.01,
limitations are necessary to ensure adequate staffing to care for the residents. The County
employes to request time off by using a benefit day and submitting the name of another
has agreed to work the time off. Those requests may be approved if adequate staffing levels
attained. If staffing levels are not adequate, then the requests are denied. The staffing levels
not adequate on either of the dates in question, consequently the requests were denied. At
the requests were denied, the day shift on December 26 had 6 vacancies. The County made
efforts to find adequate staff for the dates in question. However, on December 26, the day
was forced to work with 3½ vacant positions. Further, even the employe who had
would work for Wiemerslage apparently was not available due to car trouble. At the time
requests were denied, there were 4 vacancies on the day shift for January 1. The County
to fill those vacancies only by the start of that shift. When the County accepts a proposed
replacement for an employe who is requesting time off, then the pool of potential
which vacancies are filled becomes even smaller. The County should not be required to
proposed replacements. The grievances should be denied.
2.01 Except as otherwise
provided for in this Agreement, the County retains the normal rights
and functions of management and those that it has by law. Without limiting the generality of
foregoing, this includes the right . . . to adopt and enforce reasonable rules and regulations.
. . .
. . .
17.04 EXCHANGE OF
17.04.1 An employee may
arrange with another employee to change days off for social or
business reasons. If an employee does arrange with a co-worker to exchange days off, it
must be with
an employee who is within one's own department and the same classification. The
writing, to exchange days off must state the days each will be off and on duty, signed by
parties and must be given prior recommendation by immediate supervisor with final approval
Each of the grievances filed in this matter alleges that the County violated
Section 17.04.1 of
the contract by denying the employe's request to change work hours with another employe.
the uncontradicted testimony of the Lakeview administrator that trades of work hours are
on a regular basis as long as the employes involved know the job duties and meet the
set forth in Section 17.04.1 and, further, that such trades are not restricted by the number of
who either are scheduled to work or call in an absence. However, the evidence shows that
instant matter the three grievants were each seeking to give away a shift, rather than seeking
hours of work with other employes. Section 17.04.1 does not cover those situations where
employe is seeking to give away hours of work.
The County has a policy governing requests by employes to use accrued paid benefit
the purpose of taking time off. Said policy has been in effect for a number of years and has
communicated to the Union. The testimony and the exhibits support a finding that the policy
reasonable one and that the County's administration of the policy has been reasonable. The
has the right to maintain adequate staffing levels and to deny time off requests based on those
It also is reasonable for the County to base its denial of a request for time off on the status of
staffing level at the time the request is made, rather than waiting until the day requested off
grant or deny the request, although the County clearly has the authority to change its
the initial denial if the staffing level subsequently becomes adequate and if the employe still
to have the time off. While the employe submitting the time off request can propose a
the County is not required to grant the request on that basis. The County retains the
for trying to find qualified replacements. In the instant matter, the County made reasonable
to find sufficient staff which would have made it possible to grant the time off requests. In
prior to receiving the requests for time off from the three grievants, the County already had
requests from other employes to be off on the dates at issue herein.
Based on the foregoing, the undersigned enters the following
That the County did not violate the collective bargaining agreement either by limiting
number of employes who seek to use a benefit day and have other employes work for them,
denying the giving away of work time by employes; and, that the grievances are denied and
Dated at Madison, Wisconsin, this 7th day of October, 1999.
Douglas V. Knudson, Arbitrator