BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PRICE COUNTY PROFESSIONAL DEPUTIES
ASSOCIATION, LOCAL 116
Mr. Patrick J. Coraggio, Labor Consultant, Labor Association
of Wisconsin, Inc., appearing on behalf of the Union.
Mr. Ronald R. Gabrielsen, Price County Human Resources
Coordinator, appearing on behalf of the County.
The Price County Professional Deputies' Association, Local 116 (herein the Union)
County (herein the County) are parties to a collective bargaining agreement covering the
January 1, 1999, to December 31, 2001, and providing for binding arbitration of certain
between the parties. On November 17, 1999, the Union filed a request with the Wisconsin
Employment Relations Commission (WERC) to initiate grievance arbitration on overtime pay
to Joseph Lillie (herein the Grievant) and requested the appointment of a member of the
to arbitrate the issue. The undersigned was designated to hear the dispute. The parties
procedural objections to arbitration and a hearing was conducted on March 13, 2000. The
filed briefs on April 21, 2000.
The parties stipulated to the following statement of the issue:
Did the Sheriff violate the Collective Bargaining Agreement
denying the overtime card of
Deputy Joseph Lillie for 15 minutes at the rate of time and one-half for assisting at an
on Sunday, July 18, 1999?
If so, what is the appropriate remedy?
ARTICLE 2 MANAGEMENT
The County possesses the sole right to
operate County government and all management rights
that repose in it, subject only to the provisions of this Contract and applicable law. These
include, but are not limited to, the following:
A. To direct all operations of the
To establish reasonable work rules
and schedules of work;
To hire, promote, transfer,
schedule and assign employees to positions within the County;
To suspend, demote, discharge and take other
disciplinary action for just cause against employees;
To relieve employees from their duties because of lack of
work or any other legitimate reasons;
To maintain efficiency of County government operations;
To take whatever action is necessary to comply with
State or Federal law;
To introduce new or improved methods or facilities;
To change existing methods or facilities;
To determine the kinds and amounts of service to be
performed as pertains to County Government
operation; and the number and kinds of classifications to perform such services;
To contract out for goods or services;
To determine the methods, means and personnel by
which County operations are to be conducted;
To take whatever action is necessary to carry out the
functions of the County in situations of
The Association and the employees agree that they will not
attempt to abridge these management
rights, and the County agrees it will not use these management rights to interfere with rights
established under this Agreement. Nothing in this Agreement shall be construed as imposing
obligation upon the County to consult or negotiate with the Association concerning the above
of discretion and policy.
Deputies who are required to work
in excess of the scheduled work day or work week shall receive
pay at time and one-half (1 ½) or compensatory time off at time and one-half (1
½) at the
Deputy's discretion. Overtime must be approved by the Sheriff or Chief Deputy in advance
except in an emergency. Time and one-half (1 ½) payment, if the Deputy selects pay
of compensatory time, shall be rendered to the Deputy no later than the last pay period of the
. . .
In February 1997, Joseph Lillie, hereafter the Grievant, was hired as an Assistant Jail
by the Price County Sheriff's Department. At the time, Jail Officers were also sworn as
Deputy Sheriffs and did have certain limited arrest powers within the Courthouse, although
weren't included in the protective classification of employes. The general job functions of
Officer include maintaining security in the County Jail, guarding and caring for prisoners,
Huber inmates and other prisoners, booking arrested persons and searching prisoners.
On Sunday, July 18, 1999, the Grievant was scheduled to work from 3:00 p.m. until
p.m. He arrived at the Sheriff's Department at approximately 2:40 p.m. and began walking
parking lot with Deputy Sheriff Michael Hauschild, who was also scheduled from 3:00 p.m.
11:00 p.m. While so doing, the Grievant and Hauschild heard a traffic accident on the street
of the Courthouse. The Grievant proceeded to the accident scene while Hauschild informed
Dispatcher of the accident and then followed the Grievant to the scene. At the scene, the
and Hauschild were joined by Deputy Sheriff Brian Schmitt. Hauschild and Schmitt
direct traffic while the Grievant rendered first aid to one of the drivers who had suffered
injuries. Shortly thereafter, officers from the Phillips Police Department arrived and took
the scene, at which time the Grievant, Hauschild and Schmitt returned to the Sheriff's
and punched in for their shifts.
Subsequent to the incident, the Grievant, Hauschild and Schmitt all requested 15
overtime pay for the time they spent at the accident scene prior to commencing their regular
pursuant to Article 13, paragraph A, of the collective bargaining agreement. Hauschild and
requests were granted. The Grievant's request was denied by his supervisor, Sgt.
the basis that, as a corrections officer, the Grievant had no authority or responsibility to
accident scene, and that his aid there was voluntary. The Grievant proceeded to invoke the
procedure and the grievance was denied at each step, resulting in the matter being submitted
POSITIONS OF THE PARTIES
The labor agreement's Management Rights clause gives management authority over
scheduling employes and assigning work. Those rights are specifically limited, however, to
that they contradict other provisions of the agreement. Article 13, paragraph A, provides
Deputy who is required to work in excess of the scheduled workday shall receive overtime
compensation at the rate of time and one-half. The County concedes that, although the
specifically refers to Deputies, the language covers Jailers, as well. This language governs
The County argued that the overtime was not pre-approved, as required, and was,
rightfully denied. This ignores the fact that the contract language makes a specific exception
emergencies and that the Sheriff testified that the traffic accident in this case constituted an
emergency. It also ignores the fact that Deputies Schmidt and Hauschild received overtime
responding to the accident, although they also were not ordered to do so. The County
the circumstances by asserting that Schmidt and Hauschild had full powers of arrest, whereas
Grievant did not, but it failed to point out any provision of the contract wherein this
drawn. Further, the Sheriff conceded that powers of arrest are irrelevant when responding to
accident scene. What is relevant is that the Grievant belongs to the same bargaining unit as
and Hauschild and is entitled to the same benefits, one of which is overtime pay.
At the time of his hire, the Grievant was provided with policy and procedure
manuals, but was
never told what, if any, responsibilities he had as a Jail Officer if confronted with an
The Sheriff conceded as much and admitted that the issue never came up until the Grievant
his overtime request in this case. He further stated that no written department policies or
cover the question of the off-duty responsibilities of jailers. Jailers, however, wear uniforms
identifying them as employes of the Sheriff's Department and would not be distinguished
deputies by the general public. The average citizen, therefore, would expect such a person
to an emergency and render assistance.
The Sheriff expressed concern that jailers responding to accident scenes would expose
County to greater liability. He was, however, unable to cite cases or statistics to support his
argument, nor any workshop or seminar at which the issue was addressed. It should also be
that Sec. 895.46, Wis. Stats., which covers a County's liability for actions of its employes,
distinction between deputies and jailers, and thus both are equally shielded by the statute,
Sheriff's concern unfounded.
It should further be noted that, according to the Sheriff's testimony, jailers are to
same standards of conduct while off duty as deputies. The Sheriff testified that all law
personnel are informed that they live with a higher standard and their private conduct should
such as would discredit the department. This is inconsistent with his view that the Grievant
not have rendered assistance at the accident scene. Thus, the attempts to distinguish the
from the deputies fall short and he should be granted overtime as dictated by the labor
The County's position also runs counter to federal law. The Fair Labor Standards
mandates that work performed for the employer must be compensated and this was amplified
U.S. Supreme Court in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528
(1985). Similarly, 29 C.F.R. Sec. 785.13 states that merely promulgating a rule prohibiting
unauthorized work is insufficient and imposes a duty on the employer to prevent
from being done. If unauthorized work is suffered or permitted it must be compensated. It
enough, therefore, for the Sheriff to say he did not authorize the Grievant to do the work.
He did not
direct him not to do the work or advise him that he was not to respond to accidents and,
the County is responsible to pay him for the services he performed. For all the reasons
grievance should be sustained.
The County did not file a brief.
The Union asserts that the Grievant is entitled to 15 minutes of overtime for service
at a traffic accident scene prior to reporting for work on July 18, 1999. This claim is
the language of Article 13, paragraph A of the collective bargaining agreement, which
overtime pay whenever an employe works more than the scheduled workday. Typically,
must be preapproved by the Sheriff or Chief Deputy, except in the case of an emergency and
conceded that a traffic accident constitutes such an emergency. The question that must be
however, is whether, under the facts of this case, the Grievant's service at the accident scene
constitutes "work" for which he is entitled to be compensated.
At the time of the events that form the basis for the grievance, the Grievant was an
Jail Officer for the Price County Sheriff's Department. It is not disputed that he was not a
Sheriff. His regular work duties, as described in the job description for his position,
included ". . .
booking arrested persons upon their arrival, proper completion of necessary arrest records,
prisoners and making certain that they are issued necessary clothing, bedding and other
needs." (Employer Ex. 4) There is no dispute that the Assistant Jailers are not trained or
to perform the duties of Deputy Sheriffs. They are not issued patrol cars, do not monitor
apprehend law violators and do not have powers of arrest. They have no duty or
respond to or render assistance at traffic accident scenes. Thus, on the surface it would
the Grievant's response to the accident on July 18 falls outside the definition of compensable
contained in his job description.
The Union maintains, however, that federal wage and hour regulations, as well as
precedents, establish that the Grievant is entitled to compensation. The Union cites 29 CFR
785.11, along with Garcia v. San Antonio Metropolitan Transit Authority, 469, U.S. 528
(1985), for the proposition that any work suffered or permitted by the employer must be
compensated. For a number of reasons, I do not find these authorities to be controlling
facts presented here. In the first place, the use of the phrase "suffered or permitted" in the
and the cases presupposes knowledge by the employer that the work is being performed. In
CFR 785.12 states, in part, "If the employer knows or has reason to believe that the work is
performed, he must count the time as time worked." Thus, the regulations appear to require
constructive knowledge of the employe's work on the employer's part before the requirement
for it arises. There is no evidence in the record that the County became aware of the
involvement at the accident scene until after the fact.
The Union next cites 29 CFR 785.13, which states "The mere promulgating of a rule
unauthorized work will not be sufficient. It is incumbent upon management to ensure
of the rule." It is the Union's apparent position that this regulation imposes an affirmative
management to take steps to prevent unauthorized work and if it does not do so the employer
pay for any unauthorized work done. Whether or not this is the case, in my view this
requires at least constructive knowledge on management's part. Again, however, the
actions took place before he arrived for work and away from the worksite. Furthermore, it
apparently the only time the Grievant has responded to an accident scene in an official
is difficult to conceive what steps the County could have taken to interdict this behavior.
Another objection to the Union's argument is the fact that the regulations state that in
to be compensible the work must either be a principal activity under the employe's job
or must be essential to the carrying out of the employe's principal job activities. As has
previously noted, the duties undertaken by the Grievant were neither. I cannot find,
the work performed by the Grievant was compensible labor under the regulations.
This does not end the analysis, however. Had the Grievant's actions fallen within the
of the regulations, his work at the accident scene would have been compensible per se.
the contract clearly covered the situation presented, compensation would be merited. Neither
case. Nevertheless, the parties, by their actions, may create obligations separate from the
or the contract. In this case, the Union offered testimony that in 1999 the County paid
Jail Assistants John Janak and Eric Pilgrim for responding to traffic accidents. The County
contest or rebut this evidence or in any way distinguish the circumstances from the present
raises an issue of past practice.
Where a contract is ambiguous or silent as to a particular issue an arbitrator may rely
past practice of the parties to establish their intent, where such practice is clear and
the Union asserts without contradiction, that the recognized practice is that when Jail
respond to traffic emergencies outside normal working hours they are paid overtime for the
worked. This is not inconsistent with the language of Article 13, paragraph 2, which the
applies to Jail Assistants as well as deputies, and which provides for overtime without prior
in emergency situations. While it is true that there do not appear to be many occasions on
practice has been employed, it is likely not a situation which arises frequently and under such
circumstances an arbitrator may infer the existence of a practice based upon a small number
instances. Cresco Manufacturing Co., 79 LA 1220 (Cohen, 1982). Of particular note here
fact that the County did not contradict the Grievant's testimony regarding Janak and Pilgrim
it attempt to explain or distinguish the circumstances, lending credence to the Union's
the record before me, therefore, I conclude that the incidents involving Janak and Pilgrim
only prior situations where Jail Assistants provided aid at traffic accident scenes and they
compensated for their time.
It appears, from the testimony of the Sheriff, that the
County has never articulated a policy
for what it's off-duty Jail employes may or must do when confronted with an emergency.
Establishing a practice of compensating off-duty Jailers for services performed under these
circumstances, however, has the effect of tacitly condoning the activity. Having done so, the
is bound to apply the practice fairly and may not be arbitrary or capricious. That is not to
the County may not depart from the practice, because under the Management Rights clause it
the power to direct and assign the workforce. Before it may do so, however, it must put the
employes and the Union on notice that it is repudiating the practice.
Apparently, the County has reconsidered the wisdom of such a policy, for the Sheriff
that in February, 2000, the Jailers were reclassified as Correctional Officers and relieved of
limited arrest powers, in part to prevent future situations such as the one in question here
occurring. This, however, is to close the barn door after the horse is gone. Whatever the
effect of such a decision, it cannot impact the Grievant's rights retroactively. I find,
prior to July, 1999, there was an established practice of paying overtime to Jail Assistants
responded to traffic emergencies and that under such practice the Grievant was entitled to
compensation for his actions on July 18.
Based upon the foregoing and the record as a whole, the undersigned enters the
The County violated past practice and the collective bargaining agreement by refusing
compensate the Grievant for his time spent in responding to a traffic accident on July 18,
Accordingly, the County shall pay to the Grievant the equivalent of 15 minutes pay at one
and one-half times his regular hourly wage at the time.
Dated at Eau Claire, Wisconsin, this 20th day of September, 2000.
John R. Emery, Arbitrator