BEFORE THE UMPIRE
In the Matter of the Arbitration of a Dispute Between
LOCAL 70, AFSCME, AFL-CIO
Mr. John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Frank Volpintesta, Corporation Counsel, Kenosha County,
appearing on behalf of the County.
The Union and County named above, along with Local 1090 of
AFSCME and Service Employees Local Union 168, are parties to a Side
Letter of Understanding dated May 25, 1999, which runs until
December 31, 2003. The Side Letter provides that disputes arising
under it are to be submitted to Umpire Karen J. Mawhinney of the
WERC. A dispute arose regarding the plowing of snow in December of
2000, and the parties agreed to submit it to the Umpire. A hearing
was held on April 10, 2001, in Kenosha, Wisconsin. In addition to
the appearances noted above, Samuel Coan appeared on behalf of the
Service Employees Local Union 168 and Bob Knutter appeared on
behalf of Local 1090, AFSCME (Parks). At the conclusion of the
hearing, the parties argued their case orally in lieu of filing
The Umpire agrees with the Union's framing of the issue:
Did the County violate the May 25, 1999 Side Letter of
Understanding between Kenosha County and AFSCME Locals 70 and 1090
and Service Employees
Local Union 168 when it used Parks Department employees to
snow on the North bound frontage road from Highways K to KR on
December 30, 2000? If so, what is the appropriate remedy?
The Side Letter of Understanding states: (in relevant part)
This Letter of Understanding is entered into by and between
Kenosha County Department of Public Works and its respective
unions, Local 70, AFSCME, Local 1090, AFSCME, and Service
Employees, Local Union 168.
The parties agree to the following terms:
1. The parties agree that the County has
Department of Public Works which shares common management and
service functions both internally and to the citizens of Kenosha
County. The three bargaining units that are named above and are
signatories to this agreement are under the Department of Public
2. In an effort to serve the needs of the
public, the parties
acknowledged that there may exist a need to share equipment and
manpower across bargaining unit lines, and such cross over of
personnel is only allowed under the following terms:
A. The County may assign personnel from
one or more of the
bargaining units named herein to assist another of the bargaining
unit's employees during emergencies, in addition to specific past
practices as established between the parties in accordance with
their respective collective bargaining agreements. An emergency is
defined as a random isolated occurrence requiring immediate
attention where such attention falls outside of the normal
operation of each bargaining unit.
B. The County will distribute overtime
according to each
bargaining unit's collective bargaining agreement. During
emergencies, all available overtime hours will first be offered to
the bargaining unit that normally performs the work. Any
additional overtime hours may be offered to other bargaining unit
members included in this agreement if they are qualified to perform
the work. The County agrees to not change any work schedules or
shifts to accommodate this Letter of Understanding. In no other
event will members of Local 168 or Local 1090 be assigned to plow
snow from streets, highways or other areas currently plowed solely
by members of Local 70.
. . .
As anyone who lives in Southeastern Wisconsin knows, the
of December of 2000 was extraordinary for the amount and frequency
of snowfall, a month only snowmobile addicts could love. There was
some snow most days in December of that year, with more notable
amounts being 12 inches on the 11th, 5 inches on the 13th,
8 inches on the 29th and over 3 inches on the 30th. The
the end of the month started in the evening of the 29th and
continued the next day, with another 3 to 5 inches of snow
predicted for the evening of the 30th. The 29th was a
the 30th and 31st was a major holiday weekend, of course.
Highway Department employees normally plow frontage roads
which are part of the state system of roads. On December 30th,
Highway supervisors Bill Schenning and Bill Neiderer called in two
Parks Department employees to help on the frontage roads. The
Sheriff's Department had called the Highway Department and asked
that the frontage road between Highway's K and KR be plowed due to
traffic problems. A deputy called several times for plowing help
on the frontage roads. The temperature was below freezing and the
wind caused some blowing snow problems.
Two Parks Department employees, Jerry Brown and Nick Murphy,
plowed a frontage road or service road to I-94 between Highway K
and KR, which is about 6 miles. They were out plowing the frontage
road around 7:30 to 8:00 a.m. and spent 11 and ½ hours of overtime
plowing, which included plowing some town roads on the West end of
the County. They also plowed roads off Highway 50, which are
normally done by Highway Department employees Pete Richter, Ken
Smith and Tom Stolp. Richter, Smith and Stolp were all working
overtime on the 30th and had been called in to plow around 3:00
a.m. The frontage roads are usually cleaned up last, unless the
Interstate is closed.
Local 70's President Mark Montague reviewed time cards for
December 30th and found that 50 employees out of 67 were working on
overtime. He reviewed the call-in sheets and found that some
employees were called and did not answer their phones or refused to
come in. He noted that the County has used mechanics to plow snow
on occasion, and Wilson Shierk and Jake Brockhaus, both mechanics,
were not called in on December 30th until 10:00 a.m. or later.
Shierk had worked 17 hours of overtime until midnight on the 29th.
He would not have been called, since the County tries to leave 8
hours between shifts. Shierk came in at noon on the 30th and
worked 12 hours of overtime. Brockhaus worked 20 hours of
overtime, until 11:30 p.m. on the 29th. On the 30th,
came in at 11:15 a.m. and worked 12 and ¾ hours of overtime. Both
of them stayed at the shop and worked as mechanics and did not plow
snow. The Highway Department tries to keep two mechanics available
in the shop during a snow event. Two were not available to work on
the 29th or 30th, which left 4 mechanics to divide up that
According to the Director of the Division of Highways, Gary
Sipsma, the overtime was offered first to Highway Department
employees. In the early hours of December 30th, the
County found 41 Highway employees to be available to plow and 22
unavailable. The County has a contractual obligation to equalize
overtime and an informal policy to have employees plow snow no more
than 16 hours in one shift.
The Union believes that there are 12 Highway Department
employees who could have been called in to plow the frontage roads
on the morning of the 30th. Certain employees were called around
10:30 to 11:00 p.m. on the 30th and the County's records do not
show who was working the day or night before or how long they were
working or whether they were on vacation. In some cases, the
records may be inaccurate. For example, Wright was first called at
10:55 p.m. and did not respond, although comments indicate that he
may have been called also at 3:30 p.m. or a.m. There is no time
indicated when Tinnen was called, but a no response is indicated.
Halvorson was called at 11:07 p.m. and responded. Heckel received
a call at 3:30 p.m., but the comments indicated that he was home
and busy at 6:00 a.m. Aguero was called at 2:05 p.m. and
responded. Cunningham was not called, although he is a night
watchman and has a position different than any other in the
Department. Dietsche was called at 10:38 p.m., and responded.
Cates (Dena) was called at 2:10 p.m. and did not respond. White
was also at 2:10 p.m. and responded. White is also a night
watchman. Koessl was called at 10:56 p.m. and did not respond, and
comments note that there may have been calls at 3:40 p.m. or a.m.
Gauger was called at 3:05, and responded, but the records do not
show whether that call was a.m. or p.m. Williams was called at
10:57 p.m. and did not respond, and the comments refer to 3:20 a.m.
Ball was called at 11:00 p.m. and did not respond, although the
comments refer to 3:30 p.m. or a.m. The call-in sheet lists all
employees, including those on vacation or on accident and sick
leave. The call-in sheet does not show how many hours employees
worked before the morning of the 30th or if they worked the night
This is the first time that the Department of Public Works has
used the Side Letter of Understanding and brought in Parks
Department employees to perform work normally done by Highway
The Federal Emergency Management Agency (FEMA) gave the County
an emergency disaster declaration for snowfall between December 10
and 31 of 2000. FEMA noted in particular the critical need on the
29th and 30th. The total cost for overtime on just County
was over $57,000. The State applies for costs of overtime for
state roads from FEMA separately.
The Union contends that the snowfall at the end of December
did not meet the Side Letter's definition of emergency. Moreover,
the Union believes that there were 12 employees who could have been
called before anyone from the Parks Department should have been
called. The Union asks for the 11 and ½ hours of overtime paid to
Parks Department employees be paid to the 12 Highway Department
employees not called in the morning hours of
December 30th. The County asserts that the burden is on the
to show whether or not the 12 employees could have been called, as
the records don't show whether they just came off an overtime shift
or were in a position to be called. The County notes that the
grievance is over $300 out of $57,000 of overtime in an emergency.
The Umpire finds that the Side Letter of Understanding was not
violated for the following reasons:
1. A state of emergency existed sufficient to invoke the
Side Letter's terms. If FEMA is willing to give the County an
emergency or disaster declaration, the Umpire would be hard pressed
to make a contrary finding. Enough said.
2. The County has operated in good faith under the Side
Letter at all times since it was signed. The parties went through
the winter of 1999-2000 without incident, through a spring and
summer in 2000 with heavy rains and flooding without incident, and
went through an extraordinary month of record snowfall in December
of 2000, not invoking the Side Letter until the end of the month.
This was the first time the County ever used the cross over of
personnel under the Side Letter.
3. The Sheriff's Department was asking for the Highway
Department to clear the frontage road and had made several calls
4. It was a holiday weekend, with more snow expected the
evening of December 30th.
5. There were a number of Local 70 employees not available
about 1/3 of the force and some of them were called numerous
times. If only two of them that refused to come in had instead
agreed to come in to work, the Parks employees may never have been
6. The use of two Parks Department employees was de
The Highway Department employees incurred $57,000 in overtime on
just County roads, while the Parks Department employees incurred
$300. There was no abuse of the spirit of the Side Letter.
7. Highway Department employees were offered the overtime
first. There is no evidence on the record that Highway Department
employees were not given the opportunity to work overtime. More on
8. Some of the employees that the Union would have
compensated refused to work the overtime when it was offered to
them on the 30th. To give them money now would be unjust
The above factors are not in any particular order of priority,
but altogether, convince the Umpire that the County's first
experiment with the Side Letter should be given some deference.
There are, however, troubling matters. The County's Exhibit
#7 leaves much to be desired. The Umpire understands that when
supervisors need to call employees during emergencies, their role
is to get help in the door, not to keep accurate records. However,
the record here is remiss in some respects, such as failing to show
whether certain calls were made in the a.m. or p.m. There is no
explanation of whether some employees were working the night before
and were not called because of the need for time between shifts.
The comments are sometimes confusing and not explained. The sheets
have room for more columns, and supervisors should make a better
record in the event they need again to show that all available
overtime hours were offered first to bargaining unit members in the
The County has sufficiently explained the mechanics they
ended their shifts around midnight on the 29th, and if called at
3:00 a.m. on the 30th, they would have had only 2-3 hours of sleep
before being called back. Both had worked long hours of overtime
on the 29th and worked long hours of overtime on the 30th
Neither lost overtime opportunities, and it appears that it would
have been unreasonable for the County to call either of them at
3:00 a.m. when it was making its calls for the morning plowing on
the 30th. Some of the other people who were called in the evening
hours of the 30th may have had similar circumstances, but it is not
clear. This is why the records need to be more definite.
Then the record gets rather messy. For example, Wright was
called at 10:55 p.m., but there are three checks for no response
and the comments indicate that the answering machine was reached at
either 3:30 p.m. or a.m. Don't know which. Then there's Tinnen
no one knows what time he was called. He did not respond anyway.
Halvorson was called late and came in no one knows what he worked
the day or night before. Same story with Aguero, though his call
came several hours earlier in the afternoon. While Cunningham was
not called because he is a night watchman, White is also a night
watchman and was called. Don't know what that's about. Diesche's
name was crossed off the list but was called anyway and responded.
Dena Cates was called and did not respond. Gauger's call was at
3:05 and the record does not show whether that is a.m. or p.m.
It is more likely to be a.m., but that would be speculative too.
Williams did not answer a 3:20 a.m. call, according to the
comments, and was called again at 10:57 p.m. and did not answer.
The Union assumes here that his first call was 10:57 p.m., but the
comments might indicate otherwise. That's the reason the records
need to be better. Same is true for Ball, who also may have been
called at 3:30 a.m. or p.m. or 11:00 p.m.
However, the Union does not have evidence that anyone in the
Highway Department lost an overtime opportunity, and it could have
brought forth employees with those claims if they indeed existed.
The Union only speculates that 12 employees could have been called
early in the morning before the Parks Department employees were
called, but that is not necessarily true. Koessl and Ball attended
the hearing but did not testify that they lost an overtime call.
Koessl was called three times but did not respond. Ball was called
twice and did not respond.
To the County's credit, it made many, many attempts to reach
several employees who did not respond. Wright was called three
times, Buehn was called three times, Lichter was called three
times, Mercer was called five times, Klawitter was called five
times, Koessl was called three times, and four other employees were
called at least twice. Some of the same employees the Union would
have receive money were those who did not want the overtime and did
not respond when called. They should not get any money now. Those
employees are Tinnen, Heckel, Dena Cates, Koessl, Williams and
Ball. A close look at the record shows that six of the employees
the Union believes should have been called came in anyway, and the
other six refused to come in or did not respond to the calls. The
Highway Department attempted to put everyone to work that it could
get to work. Sipsma's testimony that the overtime was offered
first to Highway employees was not contradicted.
While the Umpire would like to see a better record than County
Exhibit #7 in any future case of this nature, the grievance is
denied for all of the reasons noted above.
Dated at Elkhorn, Wisconsin this 23rd day of April, 2001.
Karen J. Mawhinney, Umpire