BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE CITY OF EAU CLAIRE
THE AMERICAN FEDERATION OF STATE,
AND MUNICIPAL EMPLOYEES, LOCAL 284
Mr. Steve Day, Staff Representative, AFSCME,
318 Hampton Court, Altoona, Wisconsin, 54720,
appeared on behalf of the Union
Mr. Jeff Hansen, Assistant City Attorney, City of Eau Claire,
203 S. Farwell Street, P.O. Box 5148,
Eau Claire, Wisconsin, 54702, appeared on behalf of the City
On August 17, 2000 the City of Eau Claire, Wisconsin and AFSCME Local 284
the Wisconsin Employment Relations Commission to appoint William C. Houlihan, a
member of its
staff, to hear and decide a grievance pending between the parties. A hearing was conducted
November 15, 2000 in Eau Claire, Wisconsin. The proceedings were not transcribed. The
post hearing briefs which were received and exchanged by December 19, 2000.
This award addresses the right of the City to call out nonunit workers to do
BACKGROUND AND FACTS
The City of Eau Claire and Local 284, AFSCME have been signatories to a series of
bargaining agreements, relevant portions of which are set forth below. The City plows and
City streets during the winter, using bargaining unit employees.
On January 5, 2000 it snowed in Eau Claire. As a result, the City called a number
employees back to work, after they had completed their normal work day of 8:00 a.m.
to 4:00 p.m.
Seven employees returned to work at 5:00 p.m. Two employees returned at 5:30 p.m.
At the time
of the call back these employees were engaged in a limited sand and salt operation. All were
home at midnight.
As the snow intensified the City shifted to a full scale plowing operation. Such an
requires 45 men and equipment. To secure a work crew, the employer called down the
31 bargaining unit members responded. 45 bargaining unit members declined or were not
The call left the employer 14 workers short of a full employee complement.
The City secured the additional 14 workers by calling in Supervisors and other non
employees. There is a history of using non unit employees to plow when an
insufficient number of
bargaining unit employees are available to perform. The 9 employees called in at 5:00
replaced at midnight by workers responding to the plowing operation. A grievance was filed
January 24 protesting the decision to send the nine employees home at midnight, without
an eight-hour shift, while non bargaining employees worked.
Mark Struck, a bargaining unit member, testified that he has
worked past midnight in
the past, and that employees are allowed to work 16 continuous hours plowing before they
sent home. Bob Horlacher, the local Union President, testified that the City has never
previously sent bargaining unit employees home and replaced them with non unit
He further indicated that the City has an established policy that an employee can only drive
for 16 continuous hours. According to Horlacher the 16 hour standard is a safety standard.
Employees called in to plow at midnight may plow until 8:00 A.M. and then typically work
full shift the next day.
Mike Barnhardt, the Street Maintenance Manager, testified for
the City. Barnhardt
testified that once he realized that he needed to go to a full plow operation, he wanted to
the plowing operation all at once. He determined to send the early crew home at midnight as
a safety measure. He testified that employees called for overtime are not guaranteed 8 hours
of work, and frequently work less. He also indicated that the City tries to limit consecutive
plowing to 16 hours as a safety measure.
The parties could not stipulate to an issue. The Union believes the issue to be:
Did the City violate the contract, and/or past practice, when it
sent Union employees home and
replaced them with non union employees during a snow plow operation on January
If so, what is the appropriate remedy?
The City regards the issue as:
Did the City violate the contract by its staffing actions for street
operations on the night of
January 5, 2000?
If so, what is the remedy?
I regard the issue to be:
In an overtime operation, where work is available, is the City
required to allow bargaining unit
employees who have worked a full shift to work 8 overtime hours before calling in non
employees to work?
If so, what is the remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
Article 3 Union Security and Management Rights
. . .
Section 3. Management Rights. It shall be the
exclusive function of the City to determine
the mission of the agency, set standards of service to be offered to the public, and exercise
control and discretion over its organization and operations.
It shall be the right of the City to direct its employees,
take disciplinary action, relieve
its employees from duty because of lack of work, or for other legitimate reasons, and
determine the methods, means, and personnel by which the agency`s operations
are to be conducted. But this
should not preclude employees from raising grievances
about the impact that decisions on these matters have on wages, hours, and working
. . .
Article 14 Overtime
. . .
Section 9. The workers recognize that overtime work
is part and parcel of their jobs and
in that spirit the Union agrees that a concerted refusal to work overtime shall not be
sanctioned and is in violation of this agreement. In order to provide necessary services, the
City may require the least senior qualified employees in the work group to report for
work upon the exhausting of the established voluntary overtime procedure. Employees will
not be expected to work an excessive number of continuous overtime hours. Workers
scheduled to be on vacation or with established long range plans shall be exempt
mandatory overtime requirements. Violations of this section shall be just cause for
. . .
Article 31 General Provisions
. . .
Section 7. Supervisors shall not perform any work
normally performed by bargaining unit
employees, or serve as non supervisory employees of a work crew except under the
1. During an
emergency, when it is necessary in the interest of public safety to
complete emergency tasks, to avoid injury and/or damages.
2. For training purposes.
3. When a shortage of bargaining
personnel exists after following agreed upon
. . .
POSITIONS OF THE PARTIES
It is the position of the Union that the nine Union Street Department employees had
to finish out their overtime shifts on January 5, 2000. The Union points to Article 14,
Sec. 9 and
argues that the recognition that overtime is part and parcel of their work is a provision that
ways. This provision reflects an agreement that the City can order an employee to perform
work and bargaining unit members have a corresponding right to that work.
The Union points to the testimony of Struck and Horlacher to the effect that there
practice that employees are allowed to work 16 hours to finish overtime assignments. The
further points to their testimony for the proposition that overtime must first be offered to
unit members. It is in this context that Article 31, Sec 7 must be read. The Union contends
of the non unit employes called in to work were supervisors, and that they are
ineligible for such
a call until the practices described above have been satisfied.
The Union contends that the City argument relating to efficiency
has no bearing on this
case. Pointing to Horlacher`s testimony, the Union claims that shuttling employees to work
sites is a common practice, and further with larger gas tank vehicles there is little need to
trucks in for refueling.
The Union contends that the Union and City have been forced between a rock and a
place. The City has reduced the size of the bargaining unit to a level insufficient to plow the
It has simultaneously continued to buy and rent equipment to service its expanding street
accommodate this situation, the parties have arrived at an understanding. The Union has
allowed non-unit employees to perform bargaining unit work under one circumstance; the
work must be offered
to bargaining unit employees first. Only when Union employees are not available or have
maximum number of hours (16) can non unit employees work. This case represents
instance where this practice has been violated.
The City contends that Article 3, Sec 3 grant it the managerial
control to change
operations and personnel for logistical and planning purposes, as well as the health, safety
welfare of all employees.
The City further argues that the Union has failed to establish that any provision of the
Agreement or practice has been violated. The contract has no guaranteed shifts or hours.
establishes that there have been many occasions when union employees have worked less
hours overtime. The City contends that the use of non-unit employees is an established
The only contractual provision applicable is Article 31, Sec. 7, Sub.3. However, the
that there is no dispute that it followed the call in procedure. Non unit employees were used
after the call in procedure was exhausted.
I believe that certain aspects of the snow plowing operation are controlled by the
Rights clause. The decision to initiate a sand and salt operation, the decision to change to a
plow operation, the commitment of manpower, the prioritization of work all fall within the
possessed by the City. However, the right of the employer to "determine the personnel by
the agency`s operations are to be conducted" under Article 3 is a matter also addressed by
14 and Article 31.
I agree with a portion of the Union`s construction of Article 14, Sec. 9. The
obligate bargaining unit members to work overtime. It does make such work a part of the
job. It also explicitly permits (. . .the City may require. . .), but does not compel the
require the least senior employee to perform undesired overtime work. However, I do not
language to contain the reciprocal work guarantee argued by the Union. That is, I do not
clause to guarantee the bargaining unit certain kinds or amounts of overtime work.
Article 31, Sec.7 also addresses the work in question in this
dispute. That section
generally prohibits supervisors from performing unit work, subject to three exceptions, two
of which are potentially relevant to this dispute. The first is the emergency exception. For
exception to apply it must be"necessary in the interest of public safety to complete
emergency tasks, to avoid injury and/or damages." While the snowstorm certainly created
emergency conditions I do not believe the record supports a finding that a change of
at midnight was necessary to complete the work or to avoid injury or damages. The work
would have proceeded to completion if the 9 unit employees had been allowed to work a full
eight hours of overtime and then been replaced. The record indicates that the City allows,
at times requires 16 hours continuous work in a plowing operation. The 16 hour threshold
established as a safety standard. There is nothing in this record which suggests that the 16
hour plowing standard was inappropriate given the conditions of January
The second applicable exception is the shortage of personnel
provision found in
sentence 3. The employer exhausted the call in list. There is no dispute in this proceeding
the employer was then free to use non-unit employees, including supervisors, to plow. The
dispute here is when. So long as the nine unit employees were operating equipment, there
no "shortage of bargaining unit personnel", as least with respect to their assigned equipment.
It was only when they were sent home, and there was a need to replace them that the
of unit personnel appeared.
Sentence 3 allows for supervisors to work after the City follows
procedures". I believe that the call in procedure is one of those procedures. The call in
procedure addresses who is offered the work. It does not, per se, address how long called
employees will be allowed or assigned to work. The record indicates that the parties have
established 16 consecutive hours as the standard. It would require a strained reading of this
contract to permit the City to call unit employees in for two hours, thereafter send them
and replace them with supervisors or other non unit employees for a protracted plowing
operation, due to a " shortage of bargaining personnel". The second aspect of the "agreed
upon procedure" is that called in employees are allowed to work 16 hours. That is not to
that there may not arise circumstances where safety considerations or other compelling
dictate a shorter work cycle. For instance, if an employee appears so exhausted as to
a hazard or to be unable to perform the work, he may be directed to go home short of a
complete shift. However, no such circumstance is suggested here. It must be recalled that the
event giving rise to the overtime is a snowstorm. Working conditions are poor, and at times
hazardous. It is against this backdrop that the 16 hour rule has evolved. I believe it has
evolved into a practice which interprets Article 31, Sec. 7.
The City contends that the contract does not guarantee eight
hours of overtime. This
decision does not guarantee eight hours of overtime on a call out. If the work requires less
than eight hours, there is no obligation to retain unit employees any longer. However, if the
work requires eight hours, the record establishes that bargaining unit employees called in to
work are allowed to work eight overtime hours, and up to 16 continuous hours, before they
sent home for safety reasons.
The grievance is sustained.
The City is directed to pay the seven grievants who began work
at 5:00p.m. 1 hour of
overtime pay, and the two grievants who began work at 5:30 11/2 hours of overtime
Dated at Madison, Wisconsin this 9th day of January, 2001.