BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ONEIDA COUNTY DEPUTY
(Grievance of Randy Keller)
Mr. Richard Thal, General Counsel, Wisconsin Professional
Police Association, 340 Coyier Lane, Madison, Wisconsin 53713, appeared on behalf of the
O Brien, Anderson, Burgy, Garbowicz & Brown, Attorneys at Law, by Mr.
John O Brien, P.O. Box 639, 221 First Street, Eagle River, Wisconsin 54521,
appeared on behalf of the County.
The above-captioned parties, hereinafter the Association and County respectively,
parties to a collective bargaining agreement which provided for final and binding arbitration
grievances. Pursuant to a request for arbitration, the Wisconsin Employment Relations
appointed the undersigned to decide the grievance of Randy Keller. A hearing, which was
transcribed, was held on August 20, 1999 in Rhinelander, Wisconsin. Afterwards, the
briefs. The record was closed on November 1, 1999 when the undersigned was notified that
parties would not be filing reply briefs. Based upon the entire record, the undersigned issues
The parties were unable to stipulate to the issue to be decided in this case. The
framed the issue as follows:
Did the County violate the parties' collective bargaining
agreement and the June 30, 1997
Consent Award when it denied Sergeant Randy Keller's holiday and/or vacation time-off
December 26, 1998? If so, what is the appropriate remedy?
The County framed the issue as follows:
Did the County act within its authority when it denied Sergeant
Keller's request for time off?
(Must the conditions of Step 3 of the Consent Award in Case No. 127 No. 55044
MA-9876 be met
before Section 4 becomes applicable?)
Having reviewed the record and the arguments in this case, the
undersigned finds the following issue
appropriate for purposes of deciding this dispute:
Did the County violate the June 30, 1997 Consent Award when it
denied Sergeant Keller's
holiday and/or vacation time-off request for December 26, 1998? If so, what is the
The parties' 1995-97 collective bargaining agreement contained the following
ARTICLE IX OVERTIME
. . .
Section 9.06 Compensatory Time: Any
employee may elect to take compensatory time off in
lieu of cash at the rate of one and one-half (1 ½) hours of compensatory time for every
one (1) hour
of overtime. Employees shall be allowed to accumulate compensatory time in excess of one
(100) hours, however, only one hundred (100) hours may be carried over from year to year.
hours obtained in excess of one hundred (100) hours shall be paid in cash to the employee on
pay period in the month of December of the contract year. However, nothing herein shall
the employee from using compensatory time during the year and then regenerating his or her
Section 9.07 Compliance with Fair Labor Standards
Act: The Association recognizes the
County has elected to comply with the Fair Labor Standards Act for hours worked in excess
hours during each 28-day work cycle.
ARTICLE X HOLIDAYS
Section 10.01 Holidays: Each employee
(excluding the Sheriff and Chief Deputy) shall be
allowed nine (9) paid holidays as follows: New Year's Day, Easter Sunday, Memorial Day,
Independence Day, Labor Day, Thanksgiving, Christmas Day, December
24th and Good Friday. In
addition to the above scheduled nine (9) holidays, each employee shall receive a floating
be available after the employee has completed his or her initial probationary period. In the
employee is required to work on these holidays, he shall be given extra compensation of one
pay, eight (8) hours, plus one (1) day off. For the purpose of this Section, if the holiday
falls on the
employee's regular time off, or during his vacation, the employee shall receive an extra day
vouchers are to be submitted no later than the end of the month worked, approved by the
the Law Enforcement Committee. The holidays shall be considered from 11:00 p.m. of the
before the holiday to 11:00 p.m. of the holiday itself.
. . .
ARTICLE XI VACATIONS
Section 11.01 Vacation Schedule: Each
employee (excluding the Sheriff) shall receive a
vacation based upon two (2) weeks after one (1) year of service, three (3) weeks after eight
four (4) weeks after fifteen (15) years, five (5) weeks after twenty (20) years, six (6) weeks
twenty-five (25) years.
Among its many governmental functions, the County operates a Sheriff's Department.
Association represents various employes in that Department. The County and the
been parties to a series of collective bargaining agreements (hereinafter CBA). The parties'
recent CBA contained provisions dealing with holidays, vacations, and compensatory time,
Employes in the department work a staggered 7/7 shift schedule. The schedule
during certain periods to maintain continuity and to provide extra staff during periods of high
The schedule permits employes to accumulate substantial amounts of compensatory time
For many years, the department's time off policy was that normally just one employe
allowed off at a time for vacation/holiday/comp time, unless special circumstances existed.
off policy changed in one respect on January 1, 1999, when the department began to allow
employes to be off at once on the first shift for vacation/holiday/comp time. This policy
applied to the first shift it did not apply to the second and third shifts.
In 1997 and 1998, two grievances were filed after the Employer denied comp time
In both instances, the time off requests were denied based on the policy just referenced of
allowing just one employe to be off at a time for vacation/holiday/comp time. Thus, the
denied these two time off requests because another employe had already been granted time
off on the
date in question.
The first comp time grievance was the Kortenhof grievance. What happened there
Kortenhof had requested to be off on certain dates not specified in the record, and the
denied because another employe was already going to be off on those dates. His grievance
that the County violated the CBA and an "Administrative Letter Ruling" dated August 19,
the U.S. Department of Labor, Wage and Hour Division. That particular ruling held that
are not permitted to deny requests for comp time off on the basis that it would require the
to pay overtime. The grievance was settled on June 18, 1997 when the parties agreed to the
following Arbitration Consent Award:
1. The parties recognize that the Sheriff has the right
to set and modify staff level requirements.
2. The policy for time off
requests will be uniform for all requests including vacation time,
holiday time and compensatory time.
3. Such requests for time off
will be granted unless the requests would be unduly disruptive for
the Department. Requests will not be considered to be unduly disruptive if
a. Other staff is available to come in, or
b. County activities or
events are such that reduced staff levels would not create a
4. Requests for time off may
be considered unduly disruptive if more than one (1) employe in
the same classification/division and on the same shift requests vacation, holiday, or
compensatory time off.
In addition to the above-noted appearances on behalf of the
parties, Mr. Ken Kortenhof was
present at the hearing and stated his understanding of, and agreement with, the terms of the
Award as set forth above. Based on the instant Consent Award, the undersigned considers
arbitration proceeding resolved and relinquishes jurisdiction of the matter.
Dated at Madison, Wisconsin this
30th day of June, 1997.
By /s/ Paul A. Hahn
Paul A. Hahn, Arbitrator
The letter ruling was attached to the Consent Award.
At the instant hearing, both sides adduced testimony from witnesses concerning how
Consent Award came to exist in its final form.
The second comp time grievance was the Ouimette grievance. What happened there
Ouimette had requested to be off August 8 and 9, 1998, and his request was denied because
employe was already going to be off on those dates. His grievance alleged that the County
the CBA and the Consent Award by denying his comp time request for those two dates.
grievance was resolved in September, 1998, when the County's Personnel Director, Carey
notified the Association in writing that
The Personnel Committe recognizes that Mr. Ouimette should
have been allowed to take
Compensatory Time Off on August 8th and 9th. Given the
same fact situation, the County, through
the Sheriff, will endeavor to approve such requests. It is my understanding that this resolves
above referenced grievance.
Jackson testified that the reason the County's Personnel Committee granted the
was this: effective January 1, 1999, the Sheriff planned to modify the time off policy so that
henceforth two employes could be off at once on the first shift for vacation/holiday/comp
Committee decided that since Ouimette worked on the first shift, and would be covered by
modification to the time off policy, and would have his time off request granted under same,
appropriate under these circumstances to grant his time off request/grievance.
It is against this backdrop that the following occurred. On November 24, 1998,
Sergeant Randy Keller requested holiday and/or vacation time off for December 26, 1998.
Thus, he requested that he be allowed to use holiday or vacation time off for that date.
who receives time off requests, Lieutenant Boyer, denied Keller's time off request on
1998. Boyer denied Keller's time off request because Deputy Wege (another second shift
had previously been granted that shift off. Lieutenant Boyer has been instructed by his
deny time off requests if one employe in the same classification/division has already been
shift off. Given that directive, no one in the department ever made any phone calls to unit
to ascertain whether any staff was able to come in on December 26, 1998, as Keller's
On December 3, 1998, the Association filed the instant grievance challenging the
Keller's time off request. The grievance alleged that the denial of Keller's time off request
the CBA and the above-referenced Consent Award. The grievance was processed and
POSITIONS OF THE PARTIES
The Association contends that the County violated the parties' 1997 Consent Award
it denied Keller his requested holiday/vacation day. According to the Association, Keller
to use an accrued holiday or vacation day on December 26, 1998. It makes the following
to support this contention.
First, for background purposes, the Association maintains that the reason the parties
the 1997 Consent Award was because the Employer's then-existing practice of denying all
requests when one employe on the shift had already been granted time off was not consistent
the federal wage and hour law's "unduly disruptive" standard. The Association notes that
ruling by the U.S. Department of Labor, public employers have to grant comp time off
granting the request is "unduly disruptive"; employers are not permitted to deny requests for
time off on the basis that doing so would require the employer to pay overtime. The
avers that by agreeing to the Consent Award which expressly incorporated the "unduly
standard into Sections 3 and 4, the prior practice was discontinued. In other words, the
disputes the Employer's assertion that the Consent Award affirmed and continued the prior
Next, with regard to the Consent Award itself, the Association maintains that
obligates the County to grant all time off requests unless they are "unduly disruptive". The
Association reads Section 3(a) to explicitly provide that granting a time-off request does not
disrupt the department when another employe or employes can fill in for the employe or
requesting the time off. It is therefore the Association's position that the County may not
holiday, vacation or comp time-off request unless it is determined that granting
the time-off request would be unduly disruptive because no other staff is available to
come in. The
Association submits that what happened here is that after Keller made his time off request,
failed to take any steps to determine whether or not other staff was available to come in. It
this regard that no one in the department made any calls to unit employes to see if anyone
available to fill in for Keller on December 26. The Association contends this violated
of the Consent Award because that section requires the County to "consider" whether "other
is available to come in", and here no such consideration occurred. As the Association sees
County is ignoring, nullifying, and giving no effect to Section 3(a) because it is not even
whether the second employe requesting time off could be replaced by another employe. The
Association asks the Arbitrator to reject that interpretation, and give meaning to Section 3(a).
Next, the Association avers that the parties' bargaining history concerning the
also supports the Association's interpretation of the meaning of same. To support this
cites the testimony of Association representatives Jim Kluss and Randy Ingram who both
Section 4 was not included in the Consent Award as a quid pro quo for the
remainder of the
language. It also notes that one draft of the proposed Consent Award did not even include
Finally, the Association maintains that the fact that the County granted the Ouimette
provides additional support for the Association's interpretation of the Consent Award. For
background purposes, the Association notes that that grievance also involved a situation
than one employe requested time off on the same shift, and the Employer ultimately agreed
than one employe could be off on that shift. The Association interprets the Ouimette
mean that Section 4 of the Consent Award does not entitle the County to ignore Section 3 of
The Association therefore believes the grievance should be sustained. As a remedy,
Association seeks an order that directs the County to henceforth consider the requirements set
in Section 3(a) of the Consent Award, including the requirement that the availability of other
employes be considered, before the County denies a vacation, holiday or comp time-off
The County contends it did not violate the Consent Award when it denied Keller's
holiday/vacation time off request for December 26, 1998. In its view, Section 4 of the
Award required this outcome (i.e. that the time off request be denied). It makes the
arguments to support this contention.
The County begins by reviewing the bargaining history of the 1997 Consent Award.
background purposes, it notes that its long-standing time off practice prior to 1997 was that
person could normally be off work at a time. According to the Employer, this practice did
when the parties entered into the 1997 Consent Award because the practice was codified in
4. The County maintains it agreed to Section 3 in return for getting Section 4 (i.e. the
codified). As the County sees it, both parties received a benefit when they negotiated the
the Consent Award: the benefit for the Association was that henceforth time off requests
honored/granted regardless of whether they were for vacation/holiday/comp time even if it
in paying overtime, while the benefit for the County was that this existing time off
only one employe being off at a time would continue. The Employer contends that "logic
the County would not have entered into the Consent Award under the Union's
the County's view, its interpretation should be given "great weight because it continues a
long-standing practice of granting requests for time off to only one person at a time."
Next, the County reviews Sections 3 and 4 of the Consent Award. It asserts that
sections are clear and unambiguous. According to the Employer, Section 3 provides that an
employe's time off request will be honored unless it would be unusually disruptive. It reads
3(a) and (b) to give two instances where such requests would not be unduly disruptive: (a)
is available to come in, and (b) County activities or events are such that reduced staff levels
create a problem. The Employer argues that the section which follows, Section 4, is a
Section 3 because Section 4 goes on to provide that time off requests may be considered
disruptive if one employe is already off. In the County's view, Section 4 clearly gives it the
deny a request for time off if one employe is already off. In other words, if one employe is
off, the County can contractually deny the second time off request. The County believes that
only interpretation that provides any benefit to the County from the Consent Award, and it
why the County would not agree to the Consent Award unless Section 4 was added. The
asks that Sections 3 and 4 be read together and given equal weight. It submits that if just
is looked at, as the Association proposes, this ignores Section 4 and fails to give it meaning.
County again maintains it would not have agreed to the Consent Award unless Section 4 was
The County argues in the alternative that if the Arbitrator finds the language of the
Award is not clear, but rather ambiguous, then it believes the Association has not carried its
of proving the intent of the parties.
Finally, the County comments on the Ouimette grievance settlement. According to
Employer, that settlement did not create a precedent applicable here because a different work
was involved. The Employer notes in this regard that Ouimette worked the first shift while
Keller worked the second shift. The Employer asserts that since the Sheriff's
new policy of allowing two persons off at once only applies to the first shift, and not to
or third shifts, it follows that Ouimette was covered by the new policy, while Keller was not.
The County therefore asks that the grievance be denied.
This case involves the County's denial of the grievant's time-off request. The
are as follows. The grievant requested that he be allowed to use holiday or vacation time on
December 26, 1998. His request, which was made over a month in advance, was denied.
was made summarily without determining whether any other employes were available to
grievant on the day in question. The basis for the denial was that another employe on the
shift (i.e. the second shift) had already been granted that particular day off. The lieutenant
denied the grievant's time-off request had been instructed (as of that point in time) to deny
requests if another employe on that shift had already been granted that shift off.
Many CBAs contain language dealing with the granting and denying of vacation,
and/or comp time requests. A review of this CBA, however, indicates it does not. The
holiday and comp time provisions in this CBA simply do not address what criteria is used for
or denying such leave. Additionally, those same provisions do not specify how many
be off work on those types of leave on each shift.
As has already been noted, when the Employer denied the grievant's leave request,
reason for doing so was that another employe on his shift had already been granted that
off. To justify this decision, the Employer does not rely on language contained in the
Instead, it relies on language contained in a 1997 Consent Award. The record indicates that
the parties negotiated a Consent Award that dealt, in part, with time off requests. Although
parties did not stipulate to an issue herein, both sides referenced that Consent Award in their
of the issue. That being so, it is fair to say that the parties agree that this Consent Award
instant dispute. Accordingly, this case will not be decided on the basis of language contained
CBA; instead, it will be decided on different grounds.
In the discussion that follows, attention will be focused first on the language
Consent Award. If that language does not resolve the matter, attention will be given to
external to same. The undersigned characterizes that evidence as involving the County's past
concerning the number of employes allowed off per shift and the parties' bargaining history
concerning the Consent Award.
My discussion of the language begins with the following overview of same.
Sections 1 and
2 of the Consent Award are not pertinent to this dispute and therefore need not be reviewed
Broadly speaking, Section 3 obligates the County to grant employes' time off requests unless
the request would be unduly disruptive for the Sheriff's Department. Specifically, it
provides that a
request for vacation, holiday and comp time off "will be granted" (i.e. honored) unless it
request) "would be unduly disruptive for the Department." The phrase "unduly disruptive"
defined, but the section then goes on to identify two instances where such time-off requests
be considered "unduly disruptive": (a) when other staff is available to come in, or (b) when
activities or events are such that reduced staff levels do not create a problem. Section 3(a)
requires the County to "consider" whether other staff is available to come in. Section 4 then
on to provide that requests for time off may be considered unduly
disruptive if more than one
employe in the same classification and division request the same shift off. When read in
Section 3, the plain meaning of Section 4 is that the County will automatically allow
one employe off
per shift for vacation, holiday and comp time, but the County will apply the unduly
standard to additional time-off requests.
In this case, there really is no dispute among the parties as to what Sections 3 and 4
Both sides view the language as clear and unambiguous and the undersigned concurs. That
the dispute here is not over the meaning of Sections 3 and 4 per se. Instead,
it is whether Section 4
frees the County from its obligation under Section 3(a) to determine whether other staff is
to come in when a second employe on the same shift requests that shift off. The County
it does. In its view, once a time off request for a particular shift has been granted, the
believes it does not have to determine whether other employes are available to come in and
a replacement. I disagree. Notwithstanding the County's interpretation to the contrary,
does not free the County from its obligation under Section 3(a) to determine whether other
available to come in when a second employe on the same shift requests a shift off. A
general rule of
contract interpretation is that the parties intended to give effect to all provisions in their
This rule of interpretation comes from the presumption that parties do not bargain terms
have no effect. In my view, the County's interpretation of the Consent Award does not give
to Section 3(a). If the County's interpretation of the Consent Award is correct, and Section
mere surplusage, the parties would not have included Section 3(a) in the agreement, and
would state that requests for time off shall be considered unduly
disruptive if more than one employe
requests time off for a given shift. However, the fact of the matter is that the parties did
Section 3(a) in the agreement, and Section 4 provides that requests for time off
may be considered
unduly disruptive if more than one employe requests time off for a given shift. The word
Section 4 is not mandatory, so the fact that one employe has already been granted time off
make a second request for time off for that same shift automatically "unduly disruptive".
Consequently, when the County receives a time off request for a shift where another employe
already been granted off, the
County must still consider the availability of other employes before it acts on the
This requires someone from the department making calls to unit members or checking with
see if anyone is available to come in and work that particular shift.
In litigating this case, both sides relied on evidence external to the Consent Award to
their interpretation of same. In doing so, they addressed the County's past practice
number of employes allowed off per shift and the parties' bargaining history concerning the
Award. Arbitrators sometimes use past practice and bargaining history to help them interpret
ambiguous language. The key word in the previous sentence is "ambiguous". The reason
is key is because that is not the case here. As previously noted, both sides consider the
Sections 3 and 4 to be clear and unambiguous. That being so, the undersigned concludes
there is no
need in this particular case to resort to using any past practice or bargaining history to
Consent Award. Given that finding, the undersigned will not comment on the County's past
concerning the number of employes allowed off per shift and the parties' bargaining history
concerning the Consent Award.
Based on the foregoing, it is held that when Keller made his time off request, the
obligated by Section 3(a) of the Consent Award to determine whether other employes could
for him on the day in question. Specifically, the County had to "consider" whether he could
replaced by another employe. That did not happen. In point of fact, the County made no
see if any unit employe could fill in for Keller on December 26, 1998. Since that did not
County violated the Consent Award. Henceforth, pursuant to Section 3(a) of the Consent
the County is to "consider" the availability of other employes before it denies a vacation,
comp time off request.
Any matter which has not been addressed in this decision has been deemed to lack
merit to warrant individual attention.
In light of the above, it is my
That the grievance is sustained. The County violated the Consent Award when it
Sergeant Keller's holiday and/or vacation time off request for December 26, 1998. In order
remedy same, the County is henceforth to "consider" the availability of other employes
denies a vacation, holiday or comp time off request.
Dated at Madison, Wisconsin this 28th day of January, 2000.
Raleigh Jones, Arbitrator