BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LAW ENFORCEMENT EMPLOYEE RELATIONS
OF THE WISCONSIN PROFESSIONAL POLICE
for and on behalf of its affiliate local, the
KEWAUNEE COUNTY PROFESSIONAL POLICE
KEWAUNEE COUNTY BOARD OF
(Bruce Cochart Grievance)
Mr. Richard Thal, WPPA General Counsel, 340 Coyier Lane,
Madison, Wisconsin 53713, for Law
Enforcement Employee Relations Division of the Wisconsin Professional Police Association,
on behalf of its affiliate local, the Kewaunee County Professional Police Association, referred
below as the Association.
Ms. Elma E. Anderson, Corporation Counsel,
Kewaunee County, 613 Dodge Street, Kewaunee,
Wisconsin 54216, for the Kewaunee County Board of Supervisors, referred to below as the
Employer, or as the County.
The Union and the Employer are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a dispute filed on behalf of Bruce Cochart, who
referred to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
of its staff. Hearing on the matter was held on July 28, 1999, in Kewaunee, Wisconsin.
was not transcribed. The parties filed briefs and a waiver of reply briefs by October 8,
The parties were unable to stipulate the issues for decision. I have determined the
poses the following issues:
Did the County violate the Collective Bargaining Agreement
when it required the Grievant
to work outside of his scheduled shift on August 19, 20 and 21 of 1998?
If so, what is the remedy?
ARTICLE 3: HOURS OF WORK
A. WORK CYCLE
The regular work cycle that employees shall work is as
WORK six (6) consecutive days, then OFF three (3)
days, then WORK six (6)
consecutive days, then OFF three (3) consecutive days, then, the entire above cycle is
B. WORK DAY
A work day shall consist of eight (8) consecutive hours.
C. SHIFT SCHEDULE
Shift schedule shall be as follows:
7:00 a.m. 3:00 p.m.
10:00 a.m. 6:00 p.m.
3:00 p.m. 11:00 p.m.
7:00 p.m. 3:00 a.m.
11:00 p.m. 7:00 a.m.
8:00 a.m. 4:00 p.m.
10:00 a.m. 6:00 p.m.
4:00 p.m. 12:00 midnight
7:00 p.m. 3:00 a.m.
12:00 midnight 8:00 a.m.
All hours worked in excess of an eight (8) hour work day, on
day off, or outside of the sixth
(6th) consecutive work day, except for attendance at nonmandetory (sic)
schools or training, shall be
paid at the rate of time and one-half (1 ½) without pyramiding.
Whenever an employee is called to work outside of his/her
scheduled shift, he/she shall be
guaranteed a minimum of two (2) hours at time and one-half (1 ½).
. . .
K. SHIFT SELECTION
All shifts and slots shall be open for bidding among full-time
employees in December of any
current year and to take effect on the following January 1st. Bidding shall
be in order of seniority.
When the filling of a permanent vacancy in any job
has been approved, according
to the procedures outlined under the Kewaunee County Personnel Policy, full-time employees
bid, in order of seniority, for any open slot or shift at that time. No employee shall be
forced to move
out of his or her current slot or shift.
When the Department Head or his designee has notice, at
24 hours in advance of an
unscheduled open shift, all full-time employees scheduled to work on that calendar day in
classification, shall be given the opportunity to move into that open shift according to
When there is less than 24 hours advance notice, or when all full-time employees
to work on that
calendar day in that classification have refused the shift, full time
employees, in that classification,
who are on scheduled days off, will then be offered the chance to fill the open shift. Then,
employees in any other classification shall be offered the work. Thereafter, the shift will be
to regular part-time personnel. Under this section, an offer of work shall require only a
telephone contact at the employee's residence. An employee who cannot be contacted
this manner shall be deemed to have rejected the offer.
. . .
ARTICLE 18: VESTED RIGHT OF MANAGEMENT
A. GENERALLY. Except as otherwise provided in this
. . .
The Board shall have the exclusive right to determine the hours of
employment and the length
of the workweek and to make changes in the details of employment of the various employees
time to time as it deems necessary for the efficient operation of the Sheriff Department, and
Association and the members agree to cooperate with the Board and/or its representatives in
respects to promote the efficient operation of the Sheriff Department.
The parties do not dispute the facts underlying the grievance. In 1998 (references to
will be to 1998, unless otherwise noted), the County created the full-time position of Court
Officer within the Jail Division of the Sheriff's Department. The Court Security Officer
security for judicial and quasi-judicial functions. The County and the Union negotiated the
of employment for this position, and stated them in a side-letter executed in late-March. The
. . .
2. Hours of work are 8:00 a.m. to 4:30 p.m., Monday
through Friday, with a one half hour break
for lunch, and such other times as the Circuit Court or Family Court Commissioner shall be
3. Overtime shall be paid at the rate
of time and one-half for all hours in excess of eight (8) per
day and forty (40) per week.
4. The biweekly wage rate shall be at
eighty (80) hours multiplied by the current hourly rate
received by the employee.
5. The Court Security Officer shall be
eligible to accept overtime hours in the Kewaunee County
Sheriffs (sic) Department, which he or she is otherwise qualified to perform, at the discretion
department head, or his/her designee.
6. The Court Security Officer shall
receive holiday and vacation pay as specified in the collective
7. The Court Security Officer position
shall be open for bidding among all full time members of
the bargaining unit in December of any current year and to take effect on the following
Bidding shall be in order of seniority.
John Cmeyla has been the County's Chief Deputy at all times relevant to the
grievance. Among his
duties is scheduling work. Because the County employs one full-time Court Security Officer,
adjustment of schedules is required to address that employe's absences due to sickness,
other causes. Cmeyla estimated that he had to substitute other deputies into the Court
Officer position perhaps two to three shifts per month in 1998. This grievance is the first
of a Radio Operator/Jailer to assignment to fill-in for the Court Security Officer.
In August, the then-incumbent Court Security Officer, Mark Jandrin, took a
vacation. Cmeyla was aware of the vacation request, and published a work schedule in
Grievant filled in as Court Security Officer on three days of Jandrin's vacation while other
filled in for the remaining two days. Cmeyla covered the Grievant's normal shift with a
deputy, covered the second shift opening with a third shift deputy and filled the third shift
with a part-time or reserve deputy. By doing so, Cemyla hoped to permit the County to
Jandrin's vacation without the unnecessary use of overtime.
The Grievant noticed this scheduling change when the schedule was posted. He
to the change in a memo to Cmeyla, dated August 4, 1998, which states:
I am writing this to you because I am on my off days and I want
to give you a little more time
to schedule somebody else. If you want to discuss this with me, I will be back to work on
I don't want to work as Court Security Officer on the dates you
have me listed to work it in
August. I will work it if I get overtime from 1500 to 1630 hrs. My scheduled shift
according to the
contract is 0700 hrs to 1500 hrs. I know the Marks (sic) . . . hours are from 0800 hrs to
1630 hrs but
that is currently his full time position and he knows those are his hours and that's his choice.
(sic) not my choice. If you order me to work those hours I guess I don't have a choice, but
step would be to file a grievance.
I don't want you to take this as a threatening letter, its (sic) just
my feelings about it and I wanted
to give you advance notice.
Cmeyla confirmed the assignment in a memo dated August 5, which states:
You are temporarily assigned to the Court Security duties for the
following days: August 19,
20, and 21, 1998. Your work hours are 0800 to 1630 hrs as the position requires on these
The Grievant responded by filing a grievance form dated August 18, which states:
BASIS OF GRIEVANCE:
Violation of Article 3 Hours of Work Section K Shift
REMEDY: Compensate grievant for 1 hour of overtime which will arise
when grievant works his selected shift hours, plus the additional time required of court
security officer on said dates.
ISSUE: The grievant selected to work the 7AM to 3PM shift as a
operator jailer during shift bidding in late 1997 and did not choose to post for the Court
Security Officer. On August 5, 1998, the grievant was ordered to work the Court Security
Position as a temporary assignment on August 19, 20 and 21, 1998 and was told his work
hours would be 0800 to 1630 hours. Grievant asserts that his selected shift is 7AM to 3PM
and does not wish to fill a vacancy in the Court Security Officer position unless he is fully
compensated for the work time between his start time of 0700 hours and 1630 hours. The
employer had more than 24 hours advance notice of the vacancy and did not give the
opportunity for other full time employees to move into the open shifts according to seniority,
prior to assigning the shifts to the grievant.
The Grievant worked the scheduled hours to fill in for Jandrin. It is
undisputed that deputies
sometimes voluntarily switch hours to accommodate personal needs, and that such switches
obviate the need for overtime. It is also undisputed that although this was the first time the
assigned the Grievant to serve in Kewaunee County as Court Security Officer, he has
volunteered to work as Court Security Officer for two out-of-County jury trials. These
him to work outside of his shift, but also afforded him overtime for working scheduled
for working in excess of eight hours per day. Cmeyla testified that he did not seek
volunteers to fill-in
for Jandrin's August absence.
Further facts will be set forth in the
DISCUSSION section below.
THE PARTIES' POSITIONS
The Association's Brief
The Association states the issues for decision thus:
Did the County violate the Collective Bargaining Agreement when
it required the grievant to
work outside of his scheduled shift? If so, what is the appropriate remedy?
After a review of the evidence, the Association argues that the County "has violated
of work provisions set forth in Article 3 of the contract." More specifically, the Association
the County violated Sections B, C and K of Article 3.
Noting that it is undisputed that the Grievant "selected the 7:00 a.m. to 3:00 p.m.
shift as his
regular hours of work," and that the County required him to work as Court Security Officer
between 8:00 a.m. and 4:30 p.m., the Association concludes that "the County is obligated to
compensate (the Grievant) for working outside his scheduled shift." Arbitral precedent will
support the County's assertion of its general management rights, since those rights "are
by the specific terms set forth in Article 3." The assertion of the general terms of the
rights clause ignores that those terms have been specified by Article 3.
The specific violation is the County's requirement that the Grievant "work one and a
hours past his normal quitting time." Article 3, Section E, according to the Association,
County pay the Grievant "one hour additional pay for each day that he was called in." Since
worked as Court Security Officer for three days, "he should receive an additional three hours
The County's Brief
At hearing, the County stated its view of the issue for decision thus: "Is the Grievant
to overtime pay for working outside of his regularly scheduled shift?" After a review of the
the County contends that the Grievant is attempting to establish that "he cannot be required
at any other time" than his selected shift and that if "he is compelled to work during any
then "he is entitled to be paid overtime."
The County contends that the collective bargaining agreement will not support a
overtime unless an employe works in excess of eight hours in a day or beyond six
days. The evidence will not support the assertion that the Grievant met either of these
Even if Article 3, Section K applied to the grievance, the Grievant would not be entitled to
Nor will the evidence support the Grievant's desire not "to work any other hours than
he had selected." Article 3, Section K does not address how to fill a vacant shift for which
has volunteered. That provision cannot, however, "affect whether the Sheriff or his Chief
the authority to order an officer to duty when the officer does not want to work." Against
background, Article 18 governs the grievance.
Since the Court Security Position is within the Jail Division of the Sheriff's
since the Grievant "is regularly assigned to work the 7-3 shift in the Jail Division," it
according to the County, that the Sheriff can assign the Grievant "to do any work within that
including the Court Security Officer duties." The Sheriff's right to assign under Article 18
to "any shift where a vacancy occurs, regardless of (an employe's) regular schedule."
The County concludes that the evidence establishes that "there is no violation of the
bargaining agreement and no remedy is necessary."
The parties' conflicting statements of the issue for decision reflect two distinct views
grievance. The County's view is better rooted in the grievance form filed on August 18,
presumes that the Grievant's work schedule cannot be altered, but would be extended by one
one-half hours by extending his own shift to cover that of the Court Security Officer. The
indicates, however, that the Grievant did work the scheduled hours of the Court Security
three days. Against this background, the Association's broader statement of the issue is
appropriate, and is, essentially, the issue I have adopted as appropriate to this record.
have restricted the issue to the facts posed here to avoid expanding my conclusion beyond the
arguments. My statement of the issue presumes that the County's view is addressed as a
part of addressing the Association's broader view.
The County persuasively argues that the collective bargaining agreement does not
assertion that the Grievant cannot be assigned to work outside of the shift he selected under
3, Section K. Sections A, B, C, E and K underscore that the labor agreement establishes
shifts which are to be as stable as possible. Sections A, B, C and E use "shall" to describe
"regular" work schedule, the shifts that comprise it and the implications of calling
an employe in "outside of his/her scheduled shift." The final sentence of the second
Section K affirms the stability of selected shifts during the "filling of a permanent vacancy."
grievance form builds on this to assert the Grievant cannot be called in outside of his
This assertion ignores that there is a considerable distance between establishing a
work cycle, and mandating that a work cycle cannot be changed. The provisions of Article
this distance unbridgeable. The flexibility granted the County in the final sentence of the
paragraph of Article 18 precludes reading Article 3 as inflexibly as the grievance form
does Section K of Article 3 ban assigning the Grievant to a shift other than his regular shift.
establish a procedure regarding filling "an unscheduled open shift," but that procedure falls
banning County assignment of an employe to other than the employe's regular shift. That
agreement specifies overtime payments at Sections D and E would indicate that such
occur, but incur a cost when they do. Beyond this, it can be noted that the parties negotiated
work schedule of the Court Security Officer after the creation of Article 3, Section C, and
running the Section K selection process for 1998. This makes it unpersuasive to read the
set by Article 3, Section C to preclude assignment to the "day shift" set by the side letter. In
on the narrow issue of assignment posed by the facts of this grievance, the evidence affirms
Cmeyla, on behalf of the County Board, had the authority to assign the Grievant to a shift
his regular shift.
The issue thus becomes what, if any, payment beyond the straight-time wage rate the
was obligated to make by assigning the Grievant to a shift outside of his regular shift. As
asserts, the evidence will not support a conclusion that the Grievant is entitled to overtime
terms of Section D of Article 3, since he did not work in excess of "an eight (8) hour
work day, on
a day off, or outside of the sixth (6th) consecutive work day."
This focuses the grievance on the terms of Section E. That section mandates "a
two (2) hours at time and one-half (1 ½) . . . (w)henever an employee is called to work
his/her scheduled shift." The Association contends this clearly applies to the Grievant, since
called to work outside of his regular 7:00 a.m. to 3:00 p.m. shift. The side letter establishes
Court Security Officer position is bid separately from the Grievant's position. Thus, it is
to read the hours set at Section 2 of the side letter as anything other than a "scheduled shift"
from that stated for the Grievant's Radio Operator/Jailer position at Article 3, Section C.
this background, it is impossible to conclude that the County did not call him to work on the
filled in for Jandrin "outside of his scheduled shift." It is important to note that the
not indicate Cmeyla sought volunteers under Section K of Article 3, even though he had
least 24 hours in advance" of Jandrin's absence. If the reference to "scheduled shift" in
Section E is read to mean "any shift listed on a posted work schedule," then the protections
Sections A, C, E and K of Article 3 are rendered meaningless.
The evidence indicates Cmeyla, prior to this grievance, assigned deputies to fill in for
Court Security Officer position without any grievance. Whether this was done after
Section K or without regard to Section K is not apparent. Thus, it is impossible on this
determine if the reassignments occurred on a voluntary basis. On this record, it is apparent
Grievant did not volunteer, and it is apparent that he was "called to work outside of his
Reading Section E to afford call in pay reconciles the specific terms of Section E
general terms of Article 18. Against this background, the County's general rights under
must be applied without rendering the more specific duty of Article 3, Section E
the County's assignment of the Grievant to fill in for Jandrin was authorized by Article 18,
the Grievant's assignment did not fall within Article 3, Section K, it invokes call in pay
3, Section E. This conclusion stops short of specifically interpreting Section K on this
Rather, it affirms that Section K, on these facts, affords the County no defense to the
by the Union.
The remedy awarded below needs no elaboration. As the Association details in its
remedy affords the Grievant the minimum payment required by Article 3, Section E, by
six hours at straight time and two hours at time and one-half for the three days he filled in
The County did violate the Collective Bargaining Agreement when it required the
to work outside of his scheduled shift on August 19, 20 and 21 of 1998.
As the remedy appropriate to the County's violation of Article 3, Section E, the
compensate the Grievant by paying him the difference between the payment it made for his
August 19, 20 and 21 of 1998 and the payment it would have made if it had paid him, for
six hours of straight time pay and two hours at time and one-half.
Dated at Madison, Wisconsin, this 3rd day of December, 1999.
Richard B. McLaughlin, Arbitrator