BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KEWAUNEE COUNTY (SHERIFF
TEAMSTERS LOCAL UNION NO. 75
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jonathan M. Conti, 1555 North RiverCenter Drive, Suite
202, P. O. Box 12993, Milwaukee, Wisconsin 53212, on behalf of the Union.
Attorney Elma Anderson, Corporation Counsel, Kewaunee
County, 620 Juneau Street, Kewaunee, Wisconsin 54216, on behalf of the County.
According to the terms of the 1999-2000 collective bargaining
agreement between Kewaunee County (County) and Kewaunee County
Professional Police Association (Union), the parties requested that
the Wisconsin Employment Relations Commission designate a member of
its staff to hear and resolve a dispute between them regarding the
County's refusal to pay an overtime payment for an unscheduled open
day-shift on October 14, 2000. Hearing was held at Kewaunee,
Wisconsin on March 13, 2001. No stenographic transcript of the
proceedings was made. The parties agreed to file their briefs
directly with each other, postmarked April 30, 2001 and they agreed
to waive reply briefs. All documents in the case were received by
May 1, 2001, whereupon the record was closed.
The parties were unable to stipulate to an issue or issues
before the Arbitrator in this case. The parties agreed that the
Arbitrator could frame the issue based upon the relevant evidence
and argument in the case as well as the parties' suggested issues.
The Union suggested the following issue in this case:
Did the County violate the collective bargaining agreement
when it did not offer the Grievant, Richard Karman, an unscheduled
open day shift on October 14, 2000?
If so, what is the appropriate remedy?
The County suggested the following issue for determination herein:
Did Kewaunee County violate the collective bargaining
agreement when Sergeant Flaherty moved himself into the 7:00 a.m.
to 3:00 p.m. shift on October 14, 2000 instead of offering it to
off-duty personnel as overtime?
If so, what is the appropriate remedy?
Based upon the relevant evidence and argument in this case I
find that the Union's suggested issue should be determined herein.
ARTICLE 3:HOURS OF WORK
A. WORK CYCLE
The regular work cycle that employees
work is as follows:
WORK six (6) consecutive days, then
three (3) consecutive
days, then WORK six (6) consecutive days, then OFF three (3)
consecutive days, then, the entire above cycle is repeated.
B. WORK DAY
A work day shall consist of eight (8)
C. SHIFT SCHEDULE
Shift schedule, for all officers except the
Officer shall be as follows:
7:00 a.m. 3:00 p.m.
10:00 a.m. 6:00 p.m.
3:00 p.m. 11:00 p.m.
7:00 p.m. 3:00 a.m.
11:00 p.m. 7:00 a.m.
Hours of work for the Court Security
Officer shall be 8:00
a.m. to 4:30 p.m. Monday through Friday, with a one half hour break
for lunch, and such other times as the Circuit Court or Family
Court Commissioner shall be in session.
All hours worked in excess of an eight (8)
hour work day, on
a day off, or outside of the sixth (6th) consecutive work day,
except for attendance at nonmandetory (sic) schools or training,
shall be paid at the rate of time and one-half (1 ½) without
pyramiding. The Court Secruity (sic) Officer shall be paid at the
rate of time and one-half for all hours in excess of eight (8) per
day and forty (40) per week.
. . .
F. DISTRIBUTION OF OVERTIME
1. Whenever possible and practicable
overtime shall be
distributed equally among full-time personnel in each
classification first before being offered to other full-time
employees and then permanent part-time personnel. The Court
Security Officer shall be eligible to accept overtime hours in the
Kewaunee County Sheriff's Department, which he or she is otherwise
qualified to perform, at the discretion of the department head, or
2. If there is less than 24 hours notice
of an unscheduled
shift, full-time employees in that classification, on their day off
shall be offered the shift, in order of least overtime to most
overtime. If no employee in that classification on their day off
wants the shift, employees in that classification working that day
may split the shift. If no employee in that classification wants
to split the shift, an employee in that classification working that
day may take the full open shift.
3. If there is more than 24 hours
notice of an unscheduled
shift, all full-time employees in that Classification scheduled to
work on that day, shall be given the opportunity to move into the
open shift according to seniority. Whatever shift is then left
open, shall be offered up for overtime to full-time employees in
that classification, in order of least overtime to most overtime.
. . .
H. AUTHORIZED ABSENCE
A day of authorized absence shall be a day
authorization for such absence has been obtained from the
department head or his/her delegated assistant in writing prior to
the day of absence, except in case of absence due to illness.
Absence due to illness shall be counted as an authorized absence
only if in compliance with other sections of this Agreement.
. . .
K. SHIFT SELECTION
All shifts and slots, including the Court
shall be open for bidding among full-time employees from November
1 to November 15 of any current year and to take effect on the
following January 1st. Bidding shall be in order of seniority.
When the filling of a permanent vacancy
in any job description
has been approved, according to the procedures outlined under the
Kewaunee County Personnel Policy, full-time employees may bid, in
order of seniority, for any open slot or shift at that time. No
employee shall be forced to move out of his or her current slot or
When the Department Head or his
designee has notice, at least
24 hours in advance of an unscheduled open shift, all full-time
employees scheduled to work on that calendar day in that
classification, shall be given the opportunity to move into that
open shift according to seniority. When there is less than 24
hours advance notice, or when all full-time employees scheduled to
work on that calendar day in that classification have refused the
shift, full time employees, in that classification, who are on
scheduled days off, will then be offered the chance to fill the
open shift. Then, full time employees in any other classification
shall be offered the work. Thereafter, the shift will be offered
to regular part-time personnel. Under this section, an offer of
work shall require only a single telephone contact at the
employee's residence. An employee who cannot be contacted
personally in this manner shall be deemed to have rejected the
. . .
The Grievant, Richard Karman, has been employed by the County
as a Jailer/Radio Operator for the past seven years. The contract
provides that employees in the jail as well as patrol officers will
work a six/three cycle six consecutive working days and three
consecutive days off. The contract also provides for three shifts
in the jail/dispatch area: 7:00 a.m. 3:00 p.m.; 3:00 p.m.
11:00 p.m.; and 11:00 p.m. 7:00 a.m.
At approximately 10:00 p.m. on October 13, 2000, Deputy Mark
Jandrin called Jail Sergeant Flaherty and indicated that he would
be unable to work his regular shift (7:00 a.m. 3:00 p.m.) on
October 14, due to illness. Rather than call to fill the 7:00 a.m.
3:00 p.m. shift, Sergeant Flaherty decided to put himself into
Jandrin's open shift. Sergeant Flaherty's regular shift is 3:00
p.m. 11:00 p.m. At approximately 10:00 p.m., Sergeant Flaherty
called Richard Karman at home and stated that someone had called in
sick for October 14th and that Flaherty had a second shift open.
Karman indicated that he was not interested in working the second
shift on October 14th. At no time during their conversation did
Flaherty indicate to Karman that the original open shift had been
created on the first shift, not the second shift, and Karman did
not reveal to Flaherty his reason for declining to work the second
shift on October 14th.
Union Steward and Sergeant of Patrol Gulbrand, stated that if
an open shift occurs within 24 hours of the starting time of that
shift then employees who are on their off-days should be called and
offered the overtime, from the person with the least amount of
overtime worked to the one with the most overtime worked.
Sergeant, Gulbrand makes up the schedule for his patrol staff.
According to minimum manning standards of the Department, if
Gulbrand is working and a Jail/Dispatch employee calls in sick and
no jail supervisor is present on that shift, Sergeant Gulbrand will
fill the open shift as a supervisor only if the shift is down to
two employees and one is sick.
Sergeant Flaherty stated herein that in October, 2000, his
regular work shift was the second shift. Flaherty was then the
Jail/Radio Operator Sergeant. Flaherty admitted that he moved
himself into Jandrin's 7:00 a.m. to 3:00 p.m. shift after Jandrin
called in sick at approximately 10:00 p.m. on October 13th, as it
was a weekend and Lieutenant Treml (who works Monday through
Friday) was not there to handle scheduling. Flaherty stated that
he wanted the night off for a change. Flaherty also stated that he
has done this approximately four or five times, but that he could
not remember any dates or give any examples when he did it or when
and under what circumstances other Sergeants have done this. In
addition, Flaherty stated that he never talked to anyone about
moving himself into earlier shifts in the past. After he moved
himself into the 7:00 a.m. to 3:00 p.m. shift on October 14th,
Flaherty called the Grievant and asked him if he wished to fill the
second shift on October 14th, which the Grievant declined.
Flaherty stated that after the grievance was filed he asked
Lieutenant Treml about the proper procedure regarding such shift
openings. Flaherty stated that Treml told him that if Flaherty had
not been working on October 13th, the Jail or Road Sergeant could
have decided how to schedule Jandrin's shift and Flaherty might
have been called at home to fill that shift. Flaherty admitted
that on October 14th he was not off duty, rather he was scheduled
to work second shift. Flaherty also stated that since September of
2000 he has not moved himself into a more desirable shift with the
exception of the October 14, 2000 incident. Flaherty admitted that
given staffing, an additional sergeant would not have been needed
on first shift on October 14th.
Lieutenant Treml does the formal scheduling one month in
advance for the entire department. Treml admitted herein that when
Jandrin called in on October 13th, Jandrin's first shift slot was
then open. Treml submitted schedules for the jail division
covering various periods of time: 11/21/99 to 12/18/99; 4/11/99 to
5/8/99; 3/14/99 to 4/10/99; 10/22/2000 to 11/18/2000; 8/27/2000 to
9/23/2000; and 11/19/2000 to 12/16/2000. These documents showed
that on eleven occasions employees on a back shift moved up when
another employee on an earlier shift called in sick. However,
these documents contained no information regarding when the
employee who called in sick notified the department of their
illness and there was no movement of supervisors into first shift
slots from back shifts on this document. Treml stated that
supervisors such as sergeants can, without getting prior authority,
let "a guy on a back shift work an earlier shift." Treml stated
that no prior grievances of this type have been filed and
POSITIONS OF THE PARTIES
The Union argued that the language of the collective
bargaining agreement contained in Article 3 is clear and
unambiguous. Therefore, if less than 24 hours' notice of illness
is given by an employee, the contract requires at Section F
Subparagraph 2 that employees on their off-day will be offered the
opening. Given the fact that Radio Operator/Jail employee Jandrin
called in less than 24 hours prior to the start of his shift on
October 14, 2000, to indicate that he would be ill, the only
eligible group for Jandrin's shift were employees in his
classification who were in off-duty status on October 14th.
Therefore, because Sergeant Flaherty was already scheduled to work
second shift on October 14th, he was not eligible to place himself
in the open shift created by Jandrin's illness and Flaherty
violated the contract by moving himself into Jandrin's first shift
slot on October 14th.
As Grievant Karman was a full-time radio operator/jailer on
his off-day on October 14th, he should have been offered the
opening created by Jandrin's illness. In this
regard, the Union argued that it was not relevant whether Karman
was the person with the least amount of overtime hours who should
have received the vacant October 14th shift. The fact that Karman
was eligible for the vacant shift and that he was the only employee
who filed a grievance regarding it, requires the conclusion that if
the Union is successful in this case, Karman should receive the
remedy for the contract violation alleged.
In the Union's view, the County's argument that Karman was
offered an overtime shift on October 14th and declined it and that
the contract does not require that a specific shift be offered to
eligible employees under Article 3, Section F, is without merit.
The Union urged that the clear language of Article 3, Section F,
subparagraph 2 requires that the open shift be offered to off-duty
officers and therefore the County's argument is unpersuasive.
Even assuming, as the County does, that the contract language
is unclear, the Union argued that the County failed to establish
that a past practice exists which allows Sergeants or Lieutenants
to disregard the language of Article 3, Section F(2). In this
regard, the Union noted that Sergeant Flaherty's vague and
unsubstantiated claims that he had moved himself into more
desirable shifts in the past and that other sergeants had done the
same is insufficient evidence to prove a past practice. Indeed,
the Union noted that both Lieutenant Treml and Sergeant Gulbrand
stated in testimony herein that off-duty employees must be called
to fill an open shift and that thereafter only if off-duty
employees refuse can employees working that day move into the open
shift created. Therefore, the Union urged that the Arbitrator find
a violation of the contract in this case and order that Karman be
paid back pay for the overtime shift he was denied on October 14th.
The County noted that there is no dispute that Officer Jandrin
gave less than 24 hours' notice of his illness on October 14th.
The County stated "therefore, full-time employees in the
classification of Radio Operator/Jailer on their days off should be
offered the overtime shift opportunity." As Sergeant Flaherty
offered Officer Karman eight hours of overtime on October 14th and
Karman rejected this offer, the County contended that it had
thereby met its contractual obligations to Karman.
The County noted that no language in the contract requires
that overtime be offered on any particular shift and that nothing
in the contract prohibited Sergeant Flaherty from rearranging the
work shifts of employees already scheduled to work on October 14th
(including himself) and then offering the resulting vacancy as
overtime to off-duty employees.
The County noted that Sergeant Flaherty stated that he
followed past practice by essentially moving himself into more
desirable shifts in the past and stated that other sergeants had
done the same. The County urged that time sheets submitted
into evidence in this case
demonstrate that this kind of shift trading was done regularly and
that the Union never complained about it prior to this case.
Therefore, the County argued that no contract violation had
occurred in this case and asked that the grievance be denied and
The facts of this case essentially are undisputed that Officer
Jandrin called in sick less than 24 hours prior to his scheduled
first shift on October 14th. It is also undisputed that Sergeant
Flaherty decided, on his own, that he would take Jandrin's shift
and offer his own second shift vacancy as overtime to off-duty
In my opinion, Article 3, Section F(2) is clear -- that if
there is less than a 24 hour notice of an unscheduled open shift,
full-time employees in that classification on their day off must be
offered the vacant shift in order of least overtime to most
overtime. Therefore, Sergeant Flaherty was not privileged to
simply move himself into the unscheduled shift created by Officer
Jandrin's illness. Rather, Flaherty should have called full-time
employees in that classification, Radio Operator/Jailer, such as
Karman who were on their day off and he should have offered them
Jandrin's shift in order of least overtime to most overtime.
Flaherty did not do this and he therefore violated the labor
1/ It is clear that Officer Karman was on his
day off on
October 14th. The Union is correct that Karman is entitled to a
ruling in this case in his favor whether or not he is the employee
with the least overtime worked as he is the only employee who has
complained about Sergeant Flaherty's actions.
The County has argued that there was essentially "no harm and
no foul" in this case because Sergeant Flaherty offered Officer
Karman an eight-hour overtime shift on October 14th, as no
particular shift must be offered to employees under the contract
language. I disagree. Article 3, F(2) is mandatory. It
specifically states that employees in the same classification on
their day off "shall be offered the shift," referring back to the
shift made vacant by less than 24 hour notice of absence.
As I have found the contract language to be clear, the
evidence submitted by the County regarding an alleged past practice
is not relevant to this case. 2/ In any event, I note that both
the testimony of Lieutenant Treml and Sergeant Gulbrand essentially
supported the assertions of the Union in this case 3/ and that the
documentary evidence regarding shift trades offered by the County
was insufficient to support a finding on the County's behalf as
evidence failed to show any reason why the shift trades were
allowed and failed to give any information regarding when employees
thereon had called in sick. In addition, there appeared to be no
movements of supervisors into first shift slots from back shifts
recorded on the documents submitted. Finally, Sergeant Flaherty
provided no specifics regarding his own or other sergeants' use of
the past practice he described herein.
2/ In any event, I am unpersuaded by Sergeant
assertions herein that other Sergeants followed the same practice
as he did and that he has switched shifts for a more favorable
shift in the past without drawing complaints from the Union. These
assertions were unsubstantiated by any documentary or other
testimonial evidence and I do not find them persuasive.
3/ It is significnat that
there is no dispute that when
Jandrin called in sick, his October 14, 2000 shift was open.
In all of the circumstances of this case, and based upon the
record evidence and argument herein, I issue the following
The County violated the collective bargaining agreement when
it did not offer the Grievant, Richard Karman, an unscheduled open
day shift on October 14, 2000. The County shall therefore make
Richard Karman whole for the eight hour shift opportunity he was
Dated at Madison, Wisconsin this 31st day of May, 2001.
Sharon A. Gallagher, Arbitrator