BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME, LOCAL 986-B, AFL-CIO
Mr. Gerald D. Ugland, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box
370, Manitowoc, Wisconsin 54220-0370, for AFSCME.
Atty. Steven J. Rollins, Corporation Counsel, Manitowoc
County, 1110 South Ninth Street,
Manitowoc, Wisconsin 54220, for Manitowoc County.
The Manitowoc County Sheriff's Department Employees, Local 986-B, AFSCME,
("the Union,") and Manitowoc County are parties to a collective bargaining agreement which
provides for final and binding arbitration of disputes arising thereunder. On June 18, 1999,
made a request, in which the County concurred, for the Wisconsin Employment Relations
Commission to appoint a member of its staff to hear and decide a grievance over the
and application of the terms of the agreement relative to assignment of overtime. The
designated William C. Houlihan to serve as the impartial arbitrator. Hearing in the matter
in Manitowoc, Wisconsin on September 29, 1999, with a stenographic transcript being
October 8. The parties filed written arguments by November 17, 1999, and on February
waived their right to file reply briefs.
BACKGROUND AND FACTS
On March 28, 1999 corrections officer Misty Wenzel called in sick for her four to
shift at the Manitowoc County Jail. In seeking a single fill-in for the eight hour shift,
Zimmer called officers from that shift who were on their day off, then officers from the
and succeeding shifts. When no member of the bargaining unit accepted the eight-hour shift,
began contacting supervisory, non-unit personnel. Sergeant Mike Polich accepted the
Officers Kim Decker and Bruce Bonk were the most senior unit employes on the shift
following the one being filled, respectively.
On April 1, 1999 the union filed a grievance on behalf of Bonk, alleging that
violated Article #23 Section I #2, 3 + 4 by failing to offer overtime to all union employees
awarding it to management on 3/28/99. Past practice was also violated." The union sought
adjustment that the employes be made whole, that Bonk be paid four hours overtime and that
"management follow past practice and union contract."
On May 17, 1999, County Personnel Director Sharon Cornils wrote Union Staff
Representative Jerry Ugland as follows:
Inspector Peterson, who was present at the negotiations when this
language was agreed to,
described the practice of offering overtime to be:
1. Offer the full first shift the employee was
scheduled to work on.
2. If no one is
interested, offer the full shift as overtime to the next shift.
3. If no one is
interested, offer the full shift as overtime to the next shift.
4. If no one is
interested, repeat the same process offering the full shift as overtime to
5. If no one is
interested, go back to step one, offering the overtime as a partial shift.
6. If no one is
interested, assign the overtime as described in ARTICLE 23 (I)(6).
No where in ARTICLE 23(I) does it require
the employer to split a shift. It is the established
practice of the Sheriff's Department to follow the practice described by Inspector Peterson.
practice is consistent with bargaining history.
At the step three meeting it was stated that
this has not been the established practice of the jail
staff. In subsequent conversations with Jail Administrator Aukamp and Assistant Jail
Welnicke, they confirmed Inspector Peterson's statement regarding what the practice is. If
have been assigned the duty of calling staff for overtime had deviated from this practice it
without management's knowledge or consent.
The grievance is denied at step three.
According to Richard Aukamp, jail administrator, the
policy for filling vacant shifts
is to offer the shift as follows: first to part time employes, then to full time employes on that
shift on their regularly scheduled day off, then to employes on the preceding shift who had
their day off, and then to non-unit personnel (sergeants). If no one had accepted the eight
at that point, it would be offered to unit personnel as a split (4-hour) shift. All offers to unit
are to be made according to seniority. It is the sergeant in charge of each shift who conducts
directs the calling. Over the past several years there have been deviations from this
such circumstances, the situation was rectified with the unit personnel who were improperly
over later being offered other overtime. On occasion, unit personnel have been required to
The union called three witnesses, Kim Decker, Bruce Bonk, and Stan Kulas, to
the practice of the parties relative to call-in. Decker testified to the following:
. . .
Q. To your understanding, is there a reason why they
should have called people on the previous
A. Since I've started there, it
was always done that way. The people who were on duty at the
time if all refused, all union employes refused to work the whole eight-hour shift, all the
people that were asked, all the people that were working were asked if they wanted the first
four hours, the next shift was called to see which one wanted to come in early, and this was
done by seniority. It was done each time. It was done including forced-in, people who were
forced in. If you answered your phone, you were forced in. They never asked the
. . .
Decker went on to testify as follows:
. . .
Q. And after that, who is approached?
A. The people who are working
at that time for the first four hours.
Q. And then who was called
A. The people who are working
the following shift who to come in four hours early.
Q. Now is that the order that's
been so you're saying that's the order that's been followed
prior to March 28, 1999?
Q. Has it been consistent?
Q. When there have been
deviations, has it been has there been a grievance filed?
A. I'm not sure.
Q. Okay. I'm talking about
prior to March 28, 1999?
A. I know there have been understandings made by
the employer and the employe when a person
in the seniority list has been missed without a grievance being filed, there has been an
Q. What was the nature of
those agreements that you're aware of?
A. The nature - somebody
wasn't called in according to seniority, they were passed over, and
that person was allowed to work overtime.
Q. So there was so that situation was
remedied by having the employe work overtime at
. . .
Bruce Bonk testified to the following:
. . .
Q. What's your understanding of how shifts have
been filled in the past?
A. Just by seniority on, I do
believe, first it would be filled by part-timers, under any part-timer
that's off should be called first, then it goes by a list of seniority on every shift on their days
off, and if they are not reached, then it goes by seniority of the people that are on that day.
Q. So, on the previous shift and
the following shift?
Q. And is it then offered as a
Q. How long have you known
it to be offered as a split shift?
A. As long as I've been there,
six and a half years.
Q. Has that been consistent?
Q. Okay, the inconsistencies,
are you aware of whether there was a resolution when it wasn't
consistent; in other words, was a person given some kind of remedy?
A. I'm not sure.
Q. So you're aren't aware of
On cross-examination, Bonk testified as follows:
. . .
Q. You indicated that the practice of offering split
shifts has not been consistent over the years,
what did you mean by "not consistent"?
A. Just how instances where
individuals that were correction officers were told to call people in
by sergeants and they made mistakes by calling people in. That's the only thing I can think
of at the time that would have happened where the sergeant delegated a C.O. to do it and it
was mixed up that way.
Q. So when you said it's "not
consistent", am I understanding you correctly, you're saying that
in the past there have been errors in the calling?
A. Right, and that would be
just one that I can think of. That's about it.
Q. Okay. You heard Officer
Decker testify that when those errors had been discovered and
brought to management's attention, generally additional overtime was made available to the
individual to compensate for their having lost the overtime call?
A. No. No one ever has that I
know, not to me anyway.
Q. So you don't have any
knowledge of that?
. . .
Stan Kulas, president of Local 986-B, testified as follows:
. . .
Q. So after those who are off are called, then those
who were on that day previously and
following shifts, would be called and offered as a split shift, you're saying?
Q. How long has that been the
case as far as you are aware?
A. As long as I've been there.
Q. And has that been done
A. No, it hasn't.
Q. And when there were
deviations from that, what happened?
A. There have been instances
where the people have been offered to work overtime on another
day soon to follow.
. . .
The Union states the issue as follows:
Did the employer violate the collective bargaining agreement by
not offering an available shift
for union position to be split among union employees? If so, what is the appropriate
The County states the issue as follows:
Did the county violate Article 23H of the collective bargaining
agreement when it offered eight
hours of overtime to non-union employees after union employees had been offered and
eight hours of overtime as a block? If so, what is the appropriate remedy?
I state the issue as follows:
Did the county violate the collective bargaining agreement when it
offered overtime to non-union
employes on March 28, 1999? If so, what is the appropriate remedy?
ARTICLE 23 OVERTIME, COMPENSATORY TIME,
employees and Union acknowledge that reasonable overtime which is assigned must be
accepted. It is further understood and agreed that overtime shall be distributed as follows:
1. The last position
vacated on each shift will be filled first regardless of whether it is
management/non-union or union.
2. Union positions will
first be offered to all union employees and management/non-union positions will first be
offered to all management/non-union employees.
3. For all classifications
except those in PSJS, Union overtime will first be offered to
union employees of the same classification by seniority as the vacated position on the
same shift, secondly on the following shift, thirdly on the prior shift, and then to all
other qualified union employees. For positions in PSJS, when there is a need to fill
vacant shifts, the Employer will first call those employees, in order of greatest
seniority, for whom the additional hours will not result in overtime. If unfilled work
hours remain, employees for whom the additional work time would be overtime shall
be called in order of greatest seniority.
4. Once overtime for
union employees has been offered to and refused by all union
employees, it may be offered to and accepted by non-union employees. Subsequently,
once non-union overtime has been offered to and refused by all non-union employees,
it may then be offered to and accepted by union employees.
5. Except for unusual circumstances, when
scheduling overtime to be worked,
employees will not be allowed to work more than eight (8) consecutive work days.
Exceptions to this are Emergency Government, and training. These may be scheduled
at any time regardless of the number of consecutive days being worked either prior
to or after these assignments.
6. When overtime is
mandated it shall be done on a rotational basis, from least senior
employee to most senior employee.
February 15, 1993
Lt. R.J. Aukamp, Jail Administrator
Notice to All Jail Staff
.. If an employee calls in sick and this
results in a staffing level below six (6), full time
employees on days off from the affected shift should be called according to seniority. If this
fill the vacancy full time employees from the next shift should be called according to
then the following shift. If this still does not fill the vacancy, the part time employees on
from the affected shift should be called and then down the line on the other 2 shifts. If the
shift is still
not filled, an employee from the preceding shift should be asked to stay for 4 hours and an
from the following shift should be called in early 4 hours to fill the vacancy. This should
also be done
according to seniority..
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union asserts that
contract language and past practice support the conclusion that split shifts had been offered to
employes before the overtime was offered to non-union employes. Testimony shows that
of available overtime have been offered to employes working the previous shift and the
if the employes had refused the whole eight hours. Employes were even required to come in
to sergeants. There is a procedure memorialized in an "Operational Directive" dated
1993, which was not followed in this case, and the customary procedure for offering
not followed. The contract requires offering the available time to Union employees first! It
say only as a whole shift. The overtime in question was not offered to all union employes; it
offered to employes working the previous shift or the following shift, as had been the
practice, in four
The senior union employes from those shifts are entitled to be paid for the overtime
they were denied.
The employer is wrongly denying the practice and the clear language of the collective
agreement. The affected employes are entitled to the full benefit of the agreement, without
compromise. Access to overtime is widely recognized as a benefit. The call-in procedure was
and known to the employer. There is no contradiction in the agreement to splitting shifts
hour blocks, and is consistent with the contract. Clearly a past practice has been established
shifts must be offered in four hour blocks before sergeants are offered Union overtime.
In support of its position that the grievance should be denied, the county asserts that
union's demand is inconsistent with the collective bargaining agreement and improperly
the employer's reserved rights of management of the work and direction of the workforce.
Moreover, it seeks a remedy that was rejected at the bargaining table. While there may have
some variations in practice followed by individual supervisors, such variations demonstrate
county has exercised its discretion under the agreement and show that no binding past
been created. There is no language in the collective bargaining agreement that requires the
to split shifts when filling vacancies or assigning overtime; indeed, the union president
the contract "doesn't specifically address the split issue." Further, the union has not
existence of a past practice in this regard, in that even its own witnesses testified that there
consistent practice of supervisors splitting shifts. The union's reliance on the 1993 directive
misplaced, in that the department has undergone significant structural changes since that
which nullify its validity. While the union is correct that the county has on occasion split
is nothing in the collective bargaining agreement which requires it to do so; rather, the
split shifts is a management decision and management right. The standard policy as testified
the Jail Administrator is consistent with the collective bargaining agreement. Finally, this
involves facts and contract language substantially identical to a grievance which a Wisconsin
Employment Relations Commission arbitrator denied precisely because neither the collective
bargaining agreement nor past practice required the employer to split overtime shifts.
When corrections officer Misty Wenzel called in sick for her second-shift tour on
1999, Sgt. Corry Zimmer first sought to fill her vacancy by offering an eight-hour overtime
assignment to unit personnel from that shift who were on their day off. When that proved
offered the assignment to third shift personnel on their day off, then first shift personnel.
before offering the overtime in four-hour split shifts to any unit personnel, Zimmer offered it
eight-hour shift to non-unit supervisory personnel. Sgt. Mike Polich accepted the offer, and
filed this grievance.
There is some dispute over the complete nature of past procedures. But no one
the proper order of offering overtime is as follows: the full eight hours are first offered to
employes, then to unit personnel on the affected shift on their day off, then to unit personnel
subsequent shift on their day off, then to unit personnel on the preceding shift on their day
dispute is what happens if that process fails to produce sufficient staff.
The union contends that the next offers are to be to unit personnel as split shifts; only
the union contends, can the county offer the work to non-unit employes. In support of this
it cites various but unspecified instances in the past where offers were made in this manner.
The county contends that, while the collective bargaining agreement would
allow the county
to offer the work in this manner, there is nothing in that agreement which
requires it to do so.
Part of the confusion stems from structural and staffing changes over the past several
particularly the abolition of corporal and the increase in the number of sergeants per shift.
It is well-established that, where the language of the collective bargaining agreement
ambiguous, a binding past practice may develop. But it is equally well-established that to
binding, the practice must be "unequivocal, clearly enunciated and acted upon, and readily
ascertainable over a reasonable period of time as a fixed, and established practice accepted
parties." Lincoln County (Highway Dept.), Case 154, No. 54708, MA-9765 (Levitan,
citing Celanese Corp. of America, 24 LA 168, 172 (Justin, 1954).
Here, the language in question by not specifying in the very instance now
before me is
arguably ambiguous, and subject to varied interpretations. And, as the union asserts, there
certainly been instances where the call-ins were done as the Union alleges they should have
in this instance, namely the offers of split shifts to unit personnel prior to offering the work
The union argument is helped substantially by the existence of the 1993 Operational
from the Jail Administrator, which certainly seems to indicate that the split shift alternative
precedence over offering overtime to non-unit personnel. The employer discounts the
this directive on two counts. It notes that the memo dates to a time when there was only one
sergeant per shift, significantly limiting the usefulness of sergeants for fill-in work. The
further notes that the directive calls for vacancies to be offered to full-time employes first,
and part-time employes last, when in fact all parties agree that the current practice is to call
first, and only then offer overtime to full-time employes. Given the significant structural
the workforce, and the fact that aspects of
the memo have clearly been disregarded, I am not inclined to sustain the grievance
solely on the text
of this directive.
And I am very skeptical that a binding past practice has developed. Indeed, all
testified to a range of understandings and interpretations, and great inconsistency among
on the proper call-in procedure. Indeed, in his opening statement, the union representative
to the purported practice as the way things were done on "the usual basis", but acknowledged
the work "may have been offered with different members at different times." The grievant
that the county had not been consistent in conforming to what the union was claiming was
practice, but also that such overtime had "been consistently offered" on a split shift basis
twelve years of employment.
Bargaining history also supports the employer, in that the evidence shows that the
sought, but failed to obtain, language in the collective bargaining agreement explicitly
the split-shift overtime assignment the union claims is implicit in the current language.
Finally, as the employer correctly asserts, it recently prevailed in an arbitration
similar circumstances and substantially identical language. And although this analysis is not
dispositive, it is instructive and supportive, especially since it was adopted after the union's
unsuccessful attempt to codify the split-shift alternative noted above. In Manitowoc County
(Sheriff's Department), Case 349, No. 57594, MA-10684 (Gallagher, 1999), a third-shift
reported sick; when all bargaining unit officers declined the eight-hour shift, the supervisor
to split the shift but instead offered the full shift to a non-unit Sergeant, who accepted.
provisions identical to those before me, the arbitrator held that:
It is significant that the contract fails to require the County to split
shifts. Indeed, the admissions
by witnesses herein support a conclusion that a shift supervisor has unfettered discretion,
employes on the listed shift in the contract have refused the overtime shift available, to split
or refuse to do so. In addition, Article 23(H)(4) specifically states that non-unit employes
offered overtime after unit employes have refused it. Thus, the contract language is clear on
Ultimately, I find that the employer's basic argument prevails that the
language of the
collective bargaining agreement allows it to offer overtime as the union proposes, but does
require it to do so.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
the arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin this 12th day of July, 2000.
William C. Houlihan, Arbitrator