BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1366, AFSCME, AFL-CIO
CITY OF FOND DU LAC
Mr. James E. Miller, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Godfrey & Kahn, S.C., by Mr. William G. Bracken,
Coordinator of Collective Bargaining Services, appearing on behalf of the City.
The Union and the City named above are parties to a 1998-99 collective bargaining
which provides for final and binding arbitration of certain disputes. The parties asked the
Employment Relations Commission to appoint an arbitrator to hear a grievance regarding
distribution. The undersigned was appointed and held a hearing on June 14, 1999, in Fond
Wisconsin, at which time the parties were given the opportunity to present their evidence and
arguments. The parties completed filing briefs by September 20, 1999.
This case involves two grievances which are encompassed in a broad framing of the
Did the City violate Article VIII of the collective bargaining
agreement in the manner in which
it distributed overtime in the Wastewater Division during the calendar year of 1998? If so,
the appropriate remedy?
OVERTIME AND HOLIDAY PAY
. . .
Section 2 For emergency and
non-emergency overtime, each division shall post in all other
divisions, once a year, or more often if deemed necessary, a list of employees with space for
employee to indicate whether or not he wishes to be called in for regular overtime work.
employee has indicated that he does not wish to be called in for overtime work, he shall not
unless that employee is needed due to his specific skills or due to the non-availability of a
number of employees desiring overtime work. Overtime shall be divided as equally as
the qualified employees of the division, then divided as equally as possible among the
employees outside the division, except as otherwise provided in this Agreement, who have
indicating their desire for overtime. The overtime of employees shall be posted. In the
event of an
emergency, all employees may be required to work overtime, however, those employees who
indicated a desire to work overtime will be called first provided they are capable of
available work. Overtime hours worked in a division other than the employee's normally
division shall not be used for the equalization of overtime language contained herein.
. . .
Overtime shall be divided as equally as possible on a calendar year basis among
qualified employees in a division. Overtime of employees shall be posted. Part-time and
employees will not be assigned overtime work except in cases of emergency or when all
employees are working overtime or when permanent employees are unavailable for overtime
The first grievance in this dispute was filed on July 1, 1998, and it contended that
qualified to handle the quarterly sampling were not offered overtime work, and that the
overtime hours had a very wide gap. The parties put this grievance on hold while there was
attempt to equalize overtime during the last part of the year. The second grievance was filed
January 18, 1999, and it alleged that overtime was not divided as equally as possible among
The City does not dispute that it does not equalize overtime among all the employees
job classifications in the Wastewater Division. The City has never interpreted the collective
bargaining agreement in the manner urged by the Union.
There are five job classifications involved in the division:
OCL Operator Crew Leaders - 4 employees
STO Secondary Treatment Operators - 4 employees
IPS Influent Pump Station - 4 employees
ZIMPRO Process Operators - 2 employees
Maintenance 7 employees
The four OCL employees are shown below with their total number of overtime hours
David Meilahn 166 hours
John Gremminger 143 hours, plus 8 declined
Paul Rawlsky 112.5 hours, plus 8 declined
John Konz 115.75 hours, plus 8 declined
All of the OCL employees are qualified to work in any of the other job classifications
The four STO employees and their 1998 total overtime hours are:
David McEnroe 121.5 hours
Curtis Giese 99 hours
Ray Manderscheid 112.5 hours
Joseph Ditter 91 hours, plus 8 declined
The four IPS employees and their 1998 total overtime hours are:
Tim Wilkens 80.25 hours, plus 20 declined
Joseph O'Boyle 123 hours
Alan Lietz 64.75 hours, plus 24 declined
Brian O'Reilly 60.25 hours
Lietz started in March of 1998 and O'Reilly sometime in the middle of the year. IPS
is the starting
position in the plant.
The ZIMPRO employees and their 1998 overtime hours are:
Gary Delzer 98 hours
Gerald Hilt 95 hours
The maintenance employees and their 1998 overtime hours are:
Paul Krueger 23.75 hours
David Wuest - 0 - hours
David Edwards 13.50 hours
David McDermott 12.5 hours
Stephen Durocher 37 hours
Brian Huelsman 35 hours
Robert Halfmann - 0 - hours
Only two of the maintenance employees Durocher and Huelsman are
qualified to work in IPS.
Operations Crew Leaders (OCL's) are shift supervisors responsible for assigning
other operators. They also fill in for any vacancies or gaps in shifts. They fill in for people
sick, on vacation, etc. They are part of the bargaining unit. OCL's are required to have a
certification but are encouraged to have a Grade 4 certification. STO's or Secondary
Operators work in the secondary portion of the treatment plant, with activated sludge and
oxygen generation. They work with chemicals for phosphorus removal and do some
testing. IPS or Influent Pump Station operators adjust influent pumps and maintains levels of
wells, runs vacuum filters, sludge dewatering, etc. This is the entry level position at the
OCL, STO and IPS employees work a rotating schedule of 28 days, covering three
seven days a week. ZIMPRO operators work Monday through Thursday for two 10-hour
maintenance employees work Monday through Friday on a day shift.
ZIMPRO is a high pressure, high heat treatment system for sterilizing and dewatering
sludge. The two employees in ZIMPRO, Hilt and Delzer, work four 10-hour days on
through Thursday. Hilt works from 4:00 a.m. to 2:00 p.m., and Delzer works
2:00 p.m. to midnight.
A crew leader (OCL) fills the four-hour gap between midnight and 4:00 a.m. By the middle
Hilt had 62 hours of accumulated overtime. He objected to the manner in which the
were being distributed and the accumulation differences. David Meilahn had 85 hours while
30 hours at one point. Hilt and others also objected to the OCL's scheduling overtime
was available for many of the hours in STO and IPS that the OCL's scheduled for themselves
filled. Hilt was not available the last week of 1998.
There was a change of personnel in May of 1997, when Mark Serillo left and James
became the Wastewater Operations Manager. Hilt testified that when Serillo was in charge,
overtime was not as out of whack as it became under Williams' direction. Hilt also testified
OCL's were used in the past to help equalize overtime. He has been with the City for 12
declined to take overtime for a period of time after June of 1997.
Hilt is qualified to work in ZIMPRO and IPS. He has an operator's license, which
to work anywhere in the plant as long as he has been trained. He has been trained to work
All his overtime has been in ZIMPRO, the hours between midnight and 4:00 a.m. He
did not ask for
overtime work on weekends in IPS. Hilt may work overtime in ZIMPRO because a crew
filling in on IPS or STO when someone in those areas is off sick or on vacation.
The crew leaders fill in certain hours on a regular basis. They fill in for IPS every
morning between midnight and 8:00 a.m. They fill in for STO every Monday between 4:00
midnight. They fill in for ZIMPRO on Tuesday, Wednesday and Thursday mornings from
to 4:00 a.m.
Stephen Durocher has been with the City for 10 years. He is a maintenance helper
worked in IPS in the past. He holds a wastewater license, although no longer required to do
Durocher felt that some of the overtime should have been offered to maintenance employees
couple of areas. One area was in IPS, where Durocher and Huelsman were both licensed
and qualified to work in IPS. The other area was in picking up samples. After the parties
met in June
over this issue of overtime, Durocher got a little overtime in IPS. Durocher has worked
the past outside of the maintenance area. He generally works Monday through Friday, 6:30
2:30 p.m. Maintenance is considered a one-shift operation. There is backup equipment that
eliminates the need for overtime to maintain equipment that breaks down.
Durocher has signed postings stating that he is available for overtime and interested
considered. Everyone in the maintenance area has been certified for confined space work,
involved in some of the sampling work. The IPS or OCL employees normally do the
Durocher estimated that there were 90 hours of overtime in sampling for the first six months
Sampling means taking samples of wastewater from various industries in the City.
The City has had the same kind of overtime distribution variations in prior years, and
Union has not filed a grievance. The City posts the accumulated overtime hours at the end
each payroll. The computations clerk in the wastewater office posts the hours. The record
hours declined may not be accurate.
John Leonhard has been the Utilities Director in charge of the water and wastewater
since September of 1998, and was the Superintendent of Wastewater plant since 1984. The
engineer and operations manager assign overtime. Leonhard stated that the
Wastewater Division has struggled to equalize overtime within job descriptions,
because people work
in specified areas of the plant. ZIMPRO and IPS have not been trained in STO and OCL
would not be qualified to work in those areas. The Division tries to equalize overtime hours
employees in OCL and hours between employees in STO, etc., rather than throughout the
Leonhard said they have never tried to equalize overtime across the board. OCL's are the
qualified to work in all areas of the plant, and they get more overtime because of their
They also have more opportunity to work more overtime than people do in other job classes.
At the end of 1998, Hilt was on vacation and another crew leader was on vacation.
leader Meilahn got 24 hours of overtime, crew leader Rawlsky got 4 hours, and Delzer in
got 4 hours during the last week of 1998. Meilahn's 24 hours at the end of 1998 were for
at ZIMPRO. On December 28, 29, 30 and 31 of 1998, Hilt was on a floating holiday and
Another crew leader - Gremminger - was also on vacation at that time. And one of the IPS,
was on vacation the last day of December. The crew leader would have to get overtime in
to the schedule of filling in. Crew leaders also assign and distribute overtime in the absence
Operations Manager. It is typical for employees to take time off around the end of the year,
creates some overtime opportunities.
The normal procedure is to fill a vacancy with the person working in that
is already scheduled to work immediately before or after the shift that is left vacant. Either
would come in early or stay over, but it would be someone in the same job classification.
stated that it was convenient to offer those employees the overtime first because they know
Employees are aware of this procedure.
If no one accepts the overtime before or after the shift, the overtime is then offered
leader. Leonhard stated that if one person is low on overtime, they try to give some
overtime to that
person within that job classification.
Leonhard stated that if the system of offering overtime to employees working before
the vacant shift results in an unequal distribution of overtime, then they try to give the
someone with the least amount of overtime.
There were two vacancies in IPS for the first part of 1998. Lietz was hired in March
O'Reilly hired mid-year. IPS employees Wilkens and O'Boyle got more overtime during the
of 1998 because of the vacancies. Leonhard testified that he does not allow employees to
than 12 hours in a row because of safety concerns.
Historically, maintenance has less overtime than the operations side of the plant.
stated that the treatment plant was built with backup equipment, so that if one piece of
went down, they could switch to another piece of equipment. There would be no emergency
maintenance to come in and work on equipment right away, and those employees could wait
on the equipment until regular hours when parts were available.
The Wastewater Division has planned for overtime in its budget, and the records
the Division plans its budgets based on prior experience with overtime. Several years of
records show that the Wastewater Division anticipates that OCL's, STO, ZIMPRO operators,
IPS operators will work much more overtime than maintenance employees. Leonhard also
the records show that employees who were high in overtime in 1997 were low in 1998, and
of the year tends to skew the numbers.
The work of sampling is done on both a daily and quarterly basis. The Wastewater
has changed its method from time to time. The samples are from high strength industries on
basis, and every quarter, the outlying sanitary districts are sampled. Employees used to
samples every morning about 5:30 a.m. An IPS operator or an OCL employee went to get
samples, and a maintenance person also went along. There was a requirement regarding
space entry, where two people were needed on a confined space job, so they tried to get
samples from above ground. Now, IPS operators take the samples at midnight from the
that are sampled on a daily basis. They do the sampling because it's part of their job and
familiar with the work. A crew leader covers their job while they collect samples. If there
confined space entry, the operator on shift and another person goes along for safety reasons.
second person has to be certified in CPR and first aid for confined space entry. The second
for confined space could be done by a number of employees at the plant. The ISP and
do the quarterly sampling.
Normal sample pick ups do not generate any overtime. The quarterly sampling
overtime due to the need to send an extra person for the confined space entry requirements.
be possible to use someone low on overtime to help with the quarterly sampling.
Leonhard stated that the plant has been distributing overtime in the same manner for
and no one has questioned it. Maintenance employees cross over two shifts, because they
6:30 a.m., and they would not be available to work overtime for the other shifts. Leonhard
that the management has attempted to equalize overtime among qualified people according to
The call-in sheets were incomplete, because people did not write down employees
declined overtime in all instances. It was sometimes just noted who took the overtime.
The Wastewater Operations Manager since September of 1998 is James Williams.
schedules operators' overtime and makes sure the plant is staffed. On January 15, 1999, he
the following memo:
Since we are now operating short a couple of operators the
following guidelines will apply for
shift vacancies occurring as a result of unforeseen absences.
1. Attempt to fill the vacancy within the position classification:
IPS for IPS, Zimpro for Zimpro,
2. Attempt to fill a vacancy with two
four-hour assignments. The operator on shift will stay for
an additional four hours, and the operator on the shift subsequent to the vacancy will report
3. If the vacancy occurs with IPS, the
maintenance helpers are available for overtime assignments,
notify them and Rich Meilahn, if they will fill the vacancy.
4. Attempt to fill the vacancy with an
operator scheduled off for that day if the two four-hour
assignments are not possible. Consult posted OT accumulation list and select lower OT
OT declined operator for assignment.
5. Schedule an additional eight-hour shift
for the operator on duty. This assignment is the last
resort. A shift operator is not relieved until his replacement shows up.
6. Document all overtime assignments and
contacts on form WPCP-108.
7. I will attempt to equalize overtime by
assigning hours to cover vacancies from vacations,
terminations, training periods and retirements.
8. If situations arise not covered by this
procedure, contact me at home (# omitted).
9. Absences should be reported to OCL on
duty or to me whenever possible.
Williams took a previous memo from Serillo and re-wrote it to show that maintenance
available for overtime in IPS. Williams said that there was a change in policy that allowed
maintenance helpers to work overtime in IPS, and that policy changed in June of 1998.
told him at that time that he could use the maintenance helpers in IPS. Williams also added
item that requires consulting the overtime accumulation list. Everything else in the memo
same as the previous memo. Union members contend that they never saw the memo issued
Williams, although it was posted in the control room at the plant and in the administration
Notices are customarily posted at those places.
Williams described the assignment of overtime in the same manner that Leonhard
Williams found that in about 70 percent of the time, he could fill the overtime by grabbing
on either side of the shift. If he were missing a STO, he would ask the STO before and after
to work late or come in early. Then he would go to the crew leader to fill in for slots that
not fill by using the person on either side of the shift. Then he would go to someone who
was off and
try to get that person to work, still
looking at employees within the same job classification at this point. If Williams were
still short, he
would start switching people from one job classification to another where possible. For
he needed to find a STO, he could fill the STO with an OCL and have an IPS person work
Or then he could use the two maintenance helpers to work in IPS.
The parties agreed to waive the time limits of the grievance procedure that require
arbitrator to deliver the findings on the case within 30 days of the filing of the briefs.
THE PARTIES' POSITIONS
The Union believes that the labor contract is very clear, that overtime is to be
"among qualified employees in a division." The City has taken the position that it has acted
with its past practice and divided overtime as equally as possible among job classifications.
has pointed out that OCL's are responsible for taking the place of employees who are not at
thereby reducing that amount of avoidable overtime. However, there was also testimony that
were assigning themselves overtime rather than attempting to find other employees who were
available to work overtime. That obviously skews the overtime toward the OCL's and away
the other four classifications. The Union asserts that the question is whether the City can
clear language of the contract that requires equalization of overtime throughout the entire
Wastewater Division by artificially assigning more overtime to the OCL's rather than
offering it to
others in the plant.
The Union states that the second issue regarding overtime assignments involves the
availability of employees to work overtime as it occurs. Leonhard stated that the City's
was to assign available overtime to the employees working before or after the open hours
specific job classification, then with an employee in that classification who was off.
The Union is not arguing that available overtime must be offered to employees who
have either the qualifications or licenses required to perform a particular job or who are
to work the open hours. However, the current system in place is designed to channel
assignments to certain employees and does not give the remaining employees an equal chance
available overtime. That violates the contract language on equalization of overtime.
The evidence at the hearing made it clear that there is an unequal distribution of
the plant. The question is what the appropriate remedy would be. The contract calls for
overtime on a calendar year basis, a time period that the City was aware of when the parties
to hold the first maintenance employees' grievance to the end of 1998.
The Union asserts that there are two principal remedies where overtime has not been
distributed equally among the employees. One is a make-up remedy where employees are
chance to work future overtime opportunities prior to those employees who have been denied
overtime opportunities. The other is a monetary award to those employees who have been
the opportunity to work overtime in the first place.
The Union argues that a make-up remedy would be inappropriate in the facts of this
where a small number of employees are being assigned a large part of the available overtime.
proper remedy is for the City to pay employees for the overtime opportunities they were
The City argues that it has distributed overtime as equally as possible among
employees. Over the past 15 years, the City never equalized overtime across all job
but tried to equalize it within the classifications of OCL, STO, IPS, SIMPRO and
to the qualifications of employees. The City states that the qualifications of employees
impossible to equalize overtime across the entire division, because not all employees are
do all of the jobs. ZIMPRO and IPS cannot be STO and OCL's because they lack the
for those positions. Overtime within each job classification is close, but differs between
classifications. All four operator job classifications have never had the same number of
hours. Thus, overtime has not been distributed equally among all employees, as the Union
but rather equally among qualified employees, the City contends. The term "qualified"
means that some employees will have overtime opportunities that others will not. The clear
of the contract requires overtime to be distributed as equally as possible among qualified
those that are able to perform the job. The City states that it has significant safety issues
the Wastewater Plant. The ZIMPRO operators deal with a high temperature/high pressure
that could create serious safety problems. STO's produce oxygen.
Both Leonhard and Williams testified that in the final two months of the year, it is
equalize overtime because of the number of employees who are scheduled for vacations,
sick leave and so on. Employees are trying to use their allotted vacation at the end of the
employee who is in line to receive overtime may be on vacation. Distortions of overtime are
inevitable and beyond the control of the City. When an employee is absent, he cannot be
in the overtime rotation list.
The City asserts that it has made a good faith effort to distribute overtime as equally
possible among qualified employees. The distribution for 1998 was the same as that in 1997.
arbitrator held that an employer did not violate a contractual provision requiring the
overtime as equally as possible even though there was over 100 hours difference between the
and low employees within a particular job classification. The range here for
Maintenance employees is 12.5 to 37 hours. The ZIMPRO employees were within
three hours of
each other. The range among IPS was from 60 to 123, and STO's ranged from 99 to 121.5
The OCL's ranged from 120.5 to 166.
Arbitrators have upheld employers' efforts to distribute overtime when done in a
manner. Employees do not have the right to perform overtime at a specific time. The City
that Maintenance and IPS employees can be used in the quarterly sampling. However, the
work hours for Maintenance limits their ability to perform overtime for some of the sampling
The City contends that the past practice supports the City's interpretation of
overtime. Leonhard was emphatic in his description of the 15-year practice of equalizing
by job classifications. Union witness Hilt admitted that employees do not go outside of their
classifications for seeking additional overtime. While he could have worked in IPS, he never
The parties reached an understanding regarding the distribution of overtime. For the most
qualified employees mean employees in a particular job classification.
The City believes that the Union would ask the Arbitrator to ignore the word
Article VIII, Sections 2 and 5. The term qualified means employees must be able to perform
in a safe and proficient manner. Not all employees are qualified to perform all of the
the Union's remedy flies in the face of the language that requires overtime distributed as
possible among qualified employees. Moreover, the Union has not shown that the City acted
arbitrarily, capriciously or unreasonably. The City argues that the Union's interpretation of
all employees receive the same amount of overtime would lead to a harsh and absurd result,
all of them are qualified to perform the work.
The Union points out that the management of the Wastewater Treatment Plant made
effort to equalize overtime among all of the operators during the course of the year, based on
statements of how they handled overtime. First, they offered it to the employees within a
classification in four-hour blocks prior to or after their shifts. Then they had OCL's work
The Union states that the City has avoided its obligations regarding equalization of
by saying that the OCL's will automatically be assigned more overtime than other
the plant because they can perform all other jobs in the division. The Union has a concern
OCL's scheduling themselves to overtime without offering it to other employees who could
The Union has never taken the position that overtime must be absolutely equal
for qualifications and availability. However, the Union believes that the issues of
availability are of little significance as there was no evidence presented that any effort was
equalize overtime during 1998. The City knew that this issue concerned employees when
Maintenance employees grieved the matter in July of 1998. Joint Exhibit #5 shows no effort
part of the City to equalize overtime after the filing of the grievance. The fact that the
Union did not
file a grievance over the distribution of overtime in 1997 does not preclude the grievance in
from being filed. The lack of a grievance in 1997 does not indicate that the Union waived
to grieve the issue in future years. Each year brings a new requirement that overtime be
While the City states that it did not keep an accurate count of hours of overtime
argument should be dismissed as there was no evidence on this at the hearing. Joint Exhibit
contained a list of declined overtime for six employees, indicating that the City did have a
place to keep track of those totals.
The Union also objects to the City's argument regarding past practice, pointing out
practice cannot be used to overrule clear contract language. There was no agreement
parties on how overtime was to be assigned. Moreover, the City did not show that there was
consistent method of assigning overtime, thereby diminishing the City's argument regarding
The Union asserts that the City misrepresented the Union's arguments by the City's
that the remedy is for all employees to receive an identical amount of overtime. The Union
that equalization is modified by the adjective "qualified" as the primary criteria in the
overtime. The availability of employees also has to be considered. Certainly if an employee
overtime and is not available to work it, this may affect equalization. Over the course of a
contract language is meant to provide opportunities for overtime to be equalized.
The Union contends that the City's decision not to follow the contract is the real
in this proceeding. The City knew that the overtime had not been distributed equally at the
the Maintenance grievance, but it put its head in the sand and denied that it needed to make
to follow the contract.
In reply to the Union, the City objects to the Union's chart of overtime in the
area because there is no evidence regarding the desire to work overtime, the qualifications
employees, as well as what work was available and who was assigned. There is also
incomplete data, and not enough evidence in the record to know all of the facts surrounding
Maintenance employees. After the grievance was filed, the City gave
more overtime opportunities to Edwards, Durocher and Huelsman in the second half of
refuting the Union's contention that there was no significant change in how overtime was
after the grievance was filed.
The City also notes that the Union excluded the amount of overtime declined by
in its documentation of overtime worked in 1997 and 1998. While the Union argued that
Exhibits #'s 10-13 have no bearing on the issue of overtime equalization, the City submitted
documents to show that the Employer never tried to equalize hours among all job
Rather, the job classifications were treated independently in how overtime was budgeted and
allocated according to the contract.
The City believes that if there should be any remedy, it would be to allow employees
deficient in their overtime a chance to work future overtime. The Union's remedy for a
award for time not worked would give an unmerited windfall to employees and be unjust to
The City has not deliberately or willfully violated the contract. Moreover, there are not
to determine which employees were qualified to work the overtime that was available.
Equalization of overtime among bargaining unit members is a difficult thing to do. It
never perfectly equal, and employees are often left unhappy with whatever system is in
they may not get the premium paying work at the times that they want it. However, the
agreed to equalize overtime within a division, assuming that employees are
qualified. The relevant
provisions are Sections 2 and 5 of Article VIII, which call for overtime to be divided as
possible among the qualified employees of the division.
The Wastewater Treatment Plant is the division in this case. The
overtime must be divided
as equally as possible among the qualified employees of the Wastewater division. The
method has clearly violated the labor contract because the Employer was tried to divide
among job classifications, not the entire division as required by the contract.
The Employer's system may have some logical and practical basis, because the
who are often the ones qualified for the overtime are the ones working in the same job
However, the system being used by the Employer violates the contract by not taking into
equalization as the first consideration. It is the last consideration by the Employer, and it is
to equalize overtime when one looks at it in the last instance rather than the first instance.
The Employer looks first at the job classification and those working before and after
vacancy that needs filling. While this method works for meeting the qualification part of the
it does not work for meeting the equalization part of the contract. There are qualified
employees who are outside of the job classification who should be considered along
with those in the
job classification and the crew leaders. The clearest example of this was in IPS during the
of 1998. For example, during the first part of 1998 when two IPS operator positions were
there is no evidence that the two qualified maintenance employees were offered overtime in
record tends to show that the IPS employees were getting more overtime until Lietz and
were hired. The two maintenance employees, the ZIMPRO employees and the STO
have been offered overtime in IPS. The Employer could have drawn on most of the
employees in the
plant and considered the equalization factor for IPS work, since most except for some in
would be qualified to work in IPS. If they were offered it and they turned it down, due to
undesirable hours, the record should show that they declined the overtime.
The Employer admits that it has not always tracked who declines overtime, and that
to be done. If qualified employees are offered overtime and decline it, they need to be
credited as if
they had worked it in order to show the equalization.
One of the persistent problems with equalization of overtime is that employees often
about the lack of equalization of overtime but then refuse to work overtime because it falls
undesirable hours, such at weekends or nights and graveyard shifts. A system that shows
they were qualified to perform but refused to take would help alleviate some of those
The Employer's records show too much disparity within job classifications as well as
the division. Without a record tracking who has no interest, who is not qualified to work
overtime and who is not available, even the Employer's attempt to equalize overtime within a
classification fails to do that. For example, City Exhibit #14 shows that in 1997, OCL's
varied from 70.75 hours to 106 hours. STO's overtime varied from a low of 3 to a high of
might assume that the person with only three hours of overtime somehow declined all
opportunities. But one cannot tell that from the records. The ZIMPRO people had 22 and
Hilt testified that he declined to take overtime for part of 1997, which would explain his
number. The IPS overtime varied from 35.35 to 70 hours. These would be considered too
variance to comply with the contractual requirement of equalization of overtime whether by
classification or by division. The overtime record for 1997 varies from a low of 3 to a high
a difference of 103 hours without a showing that the low people either were not qualified,
available, or declined the work.
The contract does not call for equalization by job classification, but by division.
There is no
doubt about that. The contract is clear. It is up to the parties to try to work out a system to
with the contract or to mutually agree to change the contract. This is admittedly a complex
because the Employer has to take into account employees who are not available, employees
not qualified to work in the positions where overtime is needed, as well as employees who
interest in working the overtime. However, many employers have the same problem, and
system of equalization has to be made in order to comply with the contractual requirement of
equalization of overtime.
Some employers have managed their overtime equalization problems by crediting
with the available overtime if they declined it. This Employer could run a set of tallies
the overtime was available, then giving the hours to all not qualified, all not available,
whom it was offered but declined it, as well as the person that actually worked it. Such a
would then show employees an attempt to equalize it within the division and within their
qualifications. This system has its drawbacks, too, because employees might start disputes
whether they were qualified and dislike a system that points out lack of qualifications to work
overtime. It also forces the Employer to more or less keep two sets of books on overtime
show the equalization attempt, another to track actual overtime hours. But a little creativity
this all manageable.
It is clear that the contract was violated by the manner in which the Employer
overtime among job classifications rather than by the division and failed to take into account
employees in some job classifications that could have been offered overtime in other
However, the remedy for this violation is not so simple to discern.
While a monetary award without having to make up the time is the preferred remedy
cases, I do not prefer it in this case at all. One reason that a money award would be entirely
inappropriate is that neither party has any good records of where the overtime was available
was qualified and available to work it. The Employer made some attempt to show who
overtime, but made no attempt to track who was or was not qualified to work the overtime.
the Employer had operated that way for at least 15 years without a grievance, it would be
burdensome to require the Employer to show who was not qualified for which hours of
the year of 1998.
Moreover, in reality, the Employer's system may be more or less accurate to the way
would be distributed even if the Employer properly accounted for those not
qualified and those not
available. While the raw numbers of overtime hours are dramatically skewed, they would
not be so
skewed if the other factors were shown and such hours all added to employees not qualified
Any remedy should be prospective only. One remedy is to give employees who can
they were qualified and available but not offered overtime an opportunity to work such
without then upsetting the whole apple cart for another calendar year. Such remedial hours
be set aside from the equalization scheme. Another remedy would be for the Union and the
to agree on a system for the future and to monitor it carefully to avoid continued problems.
Given the lack of factual data, the Arbitrator will specifically reject any monetary
damage type of remedy, but will hold jurisdiction open for a considerable period of
time in order to allow the parties to reach a mutually satisfactory remedy for the
future. If they fail
to do so, they may ask for a remedial order before I relinquish jurisdiction in this matter.
The grievances are sustained.
The Arbitrator will hold jurisdiction until January 31, 2000 for the purposes of
a remedy should the parties fail to reach agreement on the matter of a remedy.
Dated at Elkhorn, Wisconsin this 20th day of October, 1999.
Karen J. Mawhinney, Arbitrator