BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY (PINECREST NURSING
WISCONSIN COUNCIL 40, AFSCME,
Mr. John Mulder,Administrative Coordinator, Lincoln County,
1104 East First Street, Merrill, Wisconsin 54452-2535, on behalf of the County
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, on behalf of the
According to the terms of the 1998-99 collective bargaining agreement between
Nursing Home (County) and Labor Association of Wisconsin, Inc., 1/ the parties requested
Wisconsin Employment Relations Commission designate a member of its staff to hear and
dispute between them regarding whether maintenance employees should receive extra
for working short-staffed. The Commission designated Sharon A. Gallagher to hear and
dispute. Hearing was held at Merrill, Wisconsin, on September 26, 2000. No stenographic
of the proceedings was made. At the hearing, the parties agreed that they would postmark
to each other, a copy to the Arbitrator, on October 27, 2000, and that they would waive the
file reply briefs herein.
1/ After the expiration of the 1998-99
collective bargaining agreement, Wisconsin Council 40, AFSCME, AFL-CIO became the
collective bargaining representative of the employees covered by the 1998-99 contract.
40 thereby became the administrator of that contract for unit employees and it brought this
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues should be determined in this case:
Did the Employer violate the collective bargaining
agreement by refusing to compensate the
Grievant Tracy Brown for two hours' pay for each day he worked a short-staffed schedule?
If so, what is the appropriate remedy?
OF THE 1996-97 COLLECTIVE BARGAINING
The parties attached the following "Memorandum of Agreement" to the 1996-97
agreement, the predecessor to the effective labor agreement. By its terms, this Memorandum
to expire as of the termination date of the 1996-97 agreement "unless extended by mutual
of the parties." The Memorandum read in relevant part as follows:
. . .
IT IS HEREBY AGREED by and between
Pinecrest Nursing Home ("Employer") and the Labor
Association of Wisconsin, Inc. for and on behalf of Local No.902 ("Union") that the
constitute the agreement between the parties regarding payment of additional compensation to
employees who are required to work a regular work shift at less than the established staffing
as determined by the Employer, as follows:
For the term of the agreement
between the Employer and the Union, the Employer agrees to provide
additional compensation of one hour of regular pay for each work shift that an employee is
scheduled to work and actually works with a staff of employees less than the staff level for
the department area and shift as determined by the Employer.
Staff levels as determined by the
Employer for the classification of nursing assistant are as follows:
Shift - 8 or less CNAs on South Wing
10 or less CNAs on North Wing and Special care [sic]
Note: Central Supply Assistants shall count as .5
Note: For every 8 empty beds, the above staffing levels shall
be reduced by 1. If the 8 empty beds are distributed between the two units,
the unit with the majority of empty beds shall have the staffing level reduced
Shift - 5 or less CNAs on South Wing
7 or less CNAs on
North Wing and Special care [sic]
Note: For every 11 empty beds, the above staffing levels shall
be reduced by 1. If the 11 empty beds are distributed between the two units,
the unit with the majority of empty beds shall have the staffing level reduced
- 7 or less CNAs for entire shift
Note: For every 18 empty beds, the above staffing level shall
be reduced by 1.
Staffing levels for work shifts for
other classifications shall be determined by the Employer.
This payment shall not be
applicable to those instances where an employee actually works on the
work shift with less than the established level as determined by the Employer if the shift
schedule provides sufficient numbers of employees scheduled to work but employees fail to
report to work for whatever reason, resulting in a lesser number of employees on the work
. . .
RELEVANT PROVISIONS OF THE 1998-99
In the 1998-99 contract, the parties agreed to place the substantive language contained
1996-97 "Memorandum of Agreement" into the body of the contract. Article VII
and Overtime contains the following language:
. . .
7.7: The Employer agrees to provide
additional compensation of two (2) hour [sic] of regular
pay for each work shift that an employee is scheduled to work and actually works with a
employees less than the staff level for the department area and shift as determined by the
7.7.1 Staff levels as determined by
the Employer for the classification of nursing assistant
are as follows:
Day Shift - 8 or
less CNAs on South Wing
10 or less CNAs on North Wing and Special Care
Note: Central Supply
Assistants shall count as .5 CNAs.
Note: For every 8 empty beds, the above staffing levels shall be
reduced by 1. If the
8 empty beds are distributed between the two units, the unit with the majority of
the empty beds shall have the staffing level reduced by 1.
P.M. Shift - 5 or
less CNAs on South Wing
7 or less CNAs on North Wing and Special Care
Note: For every 11 empty beds, the above staffing levels shall be
reduced by 1. If the
11 empty beds are distributed between the two units, the unit with the majority
of empty beds shall have the staffing level reduced by 1.
Night Shift - 7 or less
CNAs for entire shift
Note: For every 18 empty beds, the above staffing level shall be
reduced by 1.
7.7.3 [sic] Staffing levels
for work shifts for other classifications shall be determined by
7.7.4 This payment shall
not be applicable to those instances where an employee
actually works on the work shift with less than the established staffing level as determined
by the Employer if the shift schedule provides sufficient numbers of employees scheduled
to work but employees fail to report to work for whatever reason, resulting in a lesser
number of employees on the work shift.
. . .
The Grievant, Tracy Brown, was employed at Pinecrest in the maintenance
August, 1999, until he quit on September 8, 2000. At Pinecrest, Brown was a maintenance
who worked a regular shift from 8:00 a.m. to 4:15 p.m., Monday through Friday. At the
time of his
hire, one other maintenance mechanic and the maintenance supervisor worked in the
On or about February 14, 2000, the other maintenance employee terminated his
with Pinecrest, leaving Brown as the only unit employee in the department. Also at about
Brown's supervisor took 7.5 days of vacation. While the supervisor was absent, Brown was
responsible to prioritize and schedule all the work of the department and to perform all work.
situation continued through April 10, 2000, when the County hired another maintenance
into the department. It is also undisputed that whenever the other maintenance employee
vacation or called in sick, Brown was the only employee working in the maintenance
Brown was never paid extra therefor under Article VII.
On March 28, 2000, Brown filed the instant grievance listing Article 7.7 as having
violated and seeking "additional compensation for the time during which mechanical
worker staff has been working at 50% level of staffing since 14 February 2000 without
Both current Union President D'Amico and former Union President Lohfink, stated
approximately the past 13 years, no grievances have been filed regarding employees having
short-staffed in any department. Union President D'Amico also stated that in her department
(housekeeping) no employees have ever received compensation for working short-staffed; that
has regularly worked short-staffed when employees in her department were on sick leave or
and she was never paid extra therefor. D'Amico also stated it is normal for housekeeping to
nine full-time, one part-time and one occasional employee, but that the occasional position
unfilled for some time. D'Amico stated that during her tenure as Union President (at least
three years), the Union has never sought to bargain for increased short-staffed pay for CNAs
any other Pinecrest employees.
Former Union President Lohfink stated that the 1996-97 Memorandum of Agreement
developed because CNAs were working very long hours and because there were too few
fill the scheduled work hours. Therefore, the CNAs proposed language stating that they
receive extra pay for working short-staffed. Lohfink stated that she did not recall that any
employees were intended to be included in this provision, although the parties did not
discuss excluding other departments. Lohfink stated that the provision has never been
applied to any
other employees except CNAs. Lohfink stated that after the parties entered into the 1996-97
Memorandum of Agreement, this did not actually solve the problem regarding staffing until
County began using temporary agencies to fill the CNA work schedule.
Nursing Home Administrator Meehean (a member of the County's bargaining team at
relevant hereto) essentially corroborated Lohfink regarding the bargaining history
1996-97 Memorandum. Meehean also stated that at the time the parties entered into the
Memorandum, the County was having problems staffing Pinecrest with CNAs and the Union
asked for more money for CNAs in order to compensate them for working short. Also at
Meehean stated that no discussions were had regarding including other employees'
Article VII pay. Meehean stated that other departments had shortages from time to time,
and after the Memorandum was entered into. Meehean stated that it was his belief that the
Memorandum limited extra pay to CNAs and that it was never the parties' intent at
bargaining to give
extra money to other employees in other departments if they had to work short under either
Memorandum or the language contained in Article VII. Meehean stated that the County has
paid additional compensation to other employees for working short and that only CNAs have
extra pay under the Memorandum and Article 7.7. Finally, Meehean confirmed that no
regarding the proper interpretation of Article VII have been filed by any employees.
POSITIONS OF THE PARTIES
The Union argued that Article 7.7 is clear and unambiguous. The Union asserted
7.7 states without limitation that "an employee" is entitled to "additional compensation of two
hour [sic] of regular pay" when the employee is scheduled and actually works with a staff
is less than that "set for the department area and shift" as determined by the Employer.
Union noted that prior to February 14, 2000, Brown was working in the maintenance
with one other employee, but thereafter Brown was the only unit employee employed in the
maintenance department, yet he received no additional Article 7.7 compensation therefor.
admitted that the Employer had set no formal staff level for the maintenance department but
that evidence indicated that for the past ten years the maintenance department had a past
employing two unit employees.
The Union also argued that the arbitral principle that if certain items are expressly
others must be excluded if they are not listed, should be applicable in this case. As Article
indicates that the arbitrator may not modify, add to or delete from the express terms of the
and that the arbitrator can only interpret the contract in the area where the breach occurred,
Union urged that Article 7.7 is the only provision open to contract to interpretation in this
The County's argument that the bargaining history supports its version of the facts in
should be rejected, in the Union's view. In this regard, the Union noted that this is its first
with the County; that it did not participate in bargaining the prior agreement
and that it, therefore, cannot dispute contentions regarding the original intent of the
language that was
in the agreement prior to its representation of the employees. However, the Union urged
reasonable person would read Article 7.7 as the Union does and it urged that the County
amended that language to exclude other employees/departments if the County wished to
alleged past practice of paying only CNAs additional compensation under Article 7.7.
limitation is expressed in the clear language of Article 7.7, that clear language should control
bargaining history should not become relevant.
Furthermore, the Union urged that the evidence regarding past practice submitted by
County is not applicable here. Initially, the Union noted that it did not believe that the
regarding past practice was clear. However, even if that evidence is found to be clear, the
contended that as no ambiguity exists in the contract, the contract language must prevail over
evidence of an alleged past practice. Finally, the Union urged that Articles 31 and 32
the use of past practice and bargaining history and further support the Union's arguments in
Therefore, the Union urged that grievance be sustained and that Brown be given full back
pay for the
period of time that he worked in a short-staffed environment at Pinecrest.
The County argued that Article II reserves to it the right to determine the kind and
service, to determine what constitutes good and efficient County service and that all other
management functions not specifically limited by the contract are reserved to the County
Article. It is in this context that the County argues that Article 7.7 and its subparagraphs
The County argued that if Article 7.7 ended with the first general paragraph, the
have a claim. However, as the contract contains the various paragraphs following Article
modify Article 7.7, the Union's claims must fail. In this regard, the County noted that it has
set staffing levels for the maintenance department, which is a condition precedent to
Article 7.7. In addition, the contract sets specific criteria for the payment of additional
which only CNAs can meet. Thus, as Article 7.7 contains specific as well as general
County argued that the general language of Article 7.7 must be restricted or controlled by the
language which follows. As no reference is made in Article 7.7.1 to any employees other
and because Article 7.7.3 [sic] repeats that the County must first set staffing levels,
the County urged
maintenance department employees are not entitled to additional compensation under
The County noted that the arbitral principle that expressing one item will exclude
not listed should apply in this case. As staffing levels for the CNAs are expressed in the
no other department staffing levels are expressed, the County argued that if other
departments had been intended to be included, the parties would have done this in the
language. The County noted that past Union President Lohfink confirmed that the parties
only to cover CNAs under Article 7.7.
The County noted that both the current and past Union Presidents as well as the
administrator confirmed that only CNAs had ever received extra compensation under Article
although employees of other departments have worked short at various times when staffing
were low or other employees were on sick leave and vacation. The County urged that the
of the contract was added thereto in the 1996-97 agreement by means of incorporation of a
of Agreement which dated back to 1995. In the County's view, the language of the
is clear and specific that only CNAs can receive additional compensation under Article 7.7
urged that the Arbitrator deny and dismiss the grievance in its entirety.
The Union has argued that Article 7.7 should essentially be read alone without
the various paragraphs which follow it. I disagree. This approach would contravene a
arbitral principle that language of an agreement must be read as a whole in order to
determine the true
intent of the parties. Therefore, although the language of Article 7.7 would appear at least
to support the Union's claims in this case, the remaining language of that Article indicates
Union's claims are not persuasive.
Article 7.7 makes clear that a set staffing level is a condition precedent to short pay
entitlement. In this regard, I note that Article 7.7.1 specifically states the staffing levels for
on the various shifts at the Pinecrest Home. It is significant that staffing levels for other
classifications are not listed in Article 7.7. Indeed, Article 7.7.3 [sic] specifically
states that staffing
levels for work shifts for other classifications shall be determined by the Employer. The
conceded herein that the County has never designated staffing levels for the maintenance
As a general provision of a collective bargaining agreement must be restricted or controlled
specific provision, Article 7.7 must be controlled and restricted by the provisions
which follow it in
Articles 7.7.1 through 7.7.4.
It is axiomatic in labor relations that if the parties had intended to include other
in its delineation of staffing levels under Article 7.7, the parties could have done so. The
chose not to do this. The Union has argued that both past practice and bargaining history are
irrelevant in this case because the language of Article 7.7 is clear and unambiguous. I
my view, Article 7.7 is ambiguous as it fails to specify staffing levels to trigger the short
entitlement and Article 7.7.1 fills in that ambiguity. The use of past practice and bargaining
is also appropriate where, as here, there is a question regarding the proper interpretation of a
provision and its various attendant parts. Thus, the fact that the former Union President
that the parties only intended to cover
CNAs by negotiating Article 7.7, and the fact that the County has never paid any other
other than CNAs extra compensation under Article 7.7 are relevant to inquiries in this case.
The Union's proposed interpretation of the language of Article 7.7 is not reasonable
as it fails
to reconcile the remaining portions of Article 7.7. Whether this is the Union's first contract
County or not, the Union is responsible to police the collective bargaining agreement it
a prior union representative and it cannot essentially duck the bargaining history of the prior
representative when it assumes its role as the current collective bargaining representative of
The Union has argued that the provisions of Article 31 and 32 of the collective
agreement (the zipper clause and "no other agreement" language) essentially support its
herein. The Union cannot prevail on this argument as Article VII contains specific language
regarding short pay which would not be covered by Article 32 of the contract, a standard
clause which governs unexpressed past practices. As Article 31 essentially prohibits the
making separate contracts with individual employees, it has no applicability to this case.
As both the relevant bargaining history and past practice in this case support the
arguments regarding the proper interpretation of Article 7.7 and its attendant paragraphs and
interpretation is the only reasonable one, I issue the following
The Employer did not violate the collective bargaining agreement by refusing to
Grievant Tracy Brown for two hours pay for each day he worked a short-staffed scheduled.
grievance, therefore, is denied and dismissed in its entirety.
Dated in Oshkosh, this 4th day of December, 2000.
Sharon A. Gallagher, Arbitrator