BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KEWAUNEE COUNTY (SHERIFF'S
TEAMSTERS LOCAL UNION NO. 75
(Shift Selection Grievance)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jonathan Conti, 1555 North RiverCenter Drive, Suite 202, P.
O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of Teamsters Local
Union No. 75.
Attorney Elma Anderson, Corporation Counsel, Kewaunee
County, 620 Juneau Street, Kewaunee, Wisconsin 54216, appearing on behalf of Kewaunee
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 concerning
Grievant Paula Bernetzke's request to displace a regularly
scheduled part-time employee on the 7:00 a.m. to 3:00 p.m. shift on
October 20, 2000. The Commission designated Sharon A. Gallagher to
hear and resolve the dispute. Hearing was scheduled for and held
on March 13, 2001 at Kewaunee, Wisconsin. 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. The documents in this case
having been received by May 1, 2001, the record was thereupon
The parties were unable to stipulate to an issue to be
determined in this case. However the parties stipulated that the
arbitrator could frame the issue based upon the relevant evidence
and argument as well as the parties' suggested issues herein.
The Union suggested the following issue in this case:
Did the County violate the collective bargaining agreement
when it restricted Grievant Bernetzke from working first shift on
October 20, 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 it refused to allow Paula Bernetzke to displace a
regularly scheduled part-time employee on the 7:00 a.m. to 3:00
p.m. shift on October 20, 2000?
If so, what is the appropriate remedy?
Based upon the relevant evidence and argument, I find that
Union's statement of the issue is preferred and it shall be
ARTICLE 3: HOURS OF WORK
A. WORK CYCLE
The work cycle that employees work is as
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.
. . .
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
. . .
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 Paula Bernetzke was originally hired and worked
as a part-time employee of the Sheriff's Department for one year
before she received a full-time position as a jailer/radio
operator. To date, Bernetzke has been employed by the County
Sheriff's Department for five years. Bernetzke is assigned
to work second shift (3:00 p.m. to
7:00 a.m.). The Department also employs four permanent part-time
employees, one of whom is Marlene Augustian. It should be noted
that the Department has a minimum manning policy which indicates
that on a three person shift, the Lieutenant who schedules
employees need not replace an employee if the shift is still at two
employees, but must replace if the shift is reduced to one. Also,
employees at the Department work six days on and three days off.
The days off are known as "scheduled days off."
Lieutenant Treml does the scheduling for the Department. On
August 8, 2000, he issued the first tentative schedule covering the
period September 24, 2000 to October 21, 2000. At this time,
Bernetzke was shown to be on a scheduled day off on October 20,
2000 and no employees on any of the three shifts had requested time
off (vacation, holiday, training or sick leave) for October 20th.
Treml issued several more tentative work schedules covering the
above period dated August 10th, August 22nd,
and September 14th
which reflected changes in the schedule. On September 14, 2000,
Sergeant Flaherty requested a holiday on October 20th. Flaherty
works the second shift and there are three officers regularly
scheduled on that shift. At this point, Lieutenant Treml did not
schedule anyone or offer the second shift opening to Bernetzke as
the second shift still contained two officers and satisfied minimum
1/ It should be noted that each day, one officer
on each of
the three shifts is normally on a scheduled day off.
Treml issued revised schedules on September 19, 25 and 26,
2000. As of September 26, 2000, the first shift was fully manned
with two employees. On second shift, Bernetzke was on her
scheduled day off, Flaherty had requested a holiday and a third
employee was listed as being in training that day, leaving only one
employee on that shift. As of the September 26, 2000 schedule,
Lieutenant Treml scheduled a permanent part-time employee onto the
second shift without first offering it to full-time employees. No
grievance was filed thereon. Two employees were also scheduled to
work on the third shift. As of September 26th, no additional
employees were needed on the first or third shifts on October 20th,
according to the County's minimum manning policy.
On September 29, 2000, Officer Karman requested a holiday for
October 20th. Karman is regularly assigned to first shift. This
left first shift with only one employee and triggered the necessity
to fill a first shift slot under the Department's minimum manning
policy. At this point, Lieutenant Treml decided to schedule
Marlene Augustian, a permanent part-time employee, onto first
shift. Treml did not offer any full-time employees the first shift
opportunity before Treml offered it to Augustian.
As of the revised schedule issued October 2, 2000 Augustian
was scheduled for the first shift and Treml removed the permanent
part-time employee who had been scheduled for second shift from the
schedule and instead listed a second shift overtime opportunity.
At approximately this time, the Grievant wrote on the schedule that
she wished to work the first shift as overtime, bumping Augustian
out of that shift and giving Augustian the second shift opportunity
that was then listed on the schedule. Bernetzke did this without
speaking to Augustian; Augustian never agreed to switch shifts with
Bernetzke on October 20th. Treml denied this trade after speaking
to Augustian about it and put Augustian back on first shift.
Thereafter, Officer Lemke requested to take the second shift
overtime opportunity instead of working her regular third shift on
October 20th. Treml granted Lemke's request as of the October 12,
2000 schedule. At this point, Augustian was still assigned to
first shift and Treml had listed a third shift opportunity for
overtime (created by Lemke's taking the second shift opening).
Treml stated that there was never a first shift overtime
opportunity on October 20th. Treml also stated he did not know if
another part-time employee was available for the third shift
opportunity on October 20th, although he normally checks this out.
Treml stated that when Officer Karman requested a holiday on
October 20th, he could have refused to allow him to take one.
Treml stated that after he saw Bernetzke's attempted trade on the
schedule, he called Augustian and asked if Bernetzke had asked her
to switch shifts. Augustian told Treml that Bernetzke had not
spoken to her and she stated that she could not work third shift on
October 20th due to her hours of work at her second job.
Thereafter, Lieutenant Treml spoke to Bernetzke and wrote her a
note indicating that she could not bump Augustian in this fashion
and that he denied her the first shift on October 20th.
Eventually, Lemke and Officer Jandrin (on the first shift on
October 21st) split the third shift overtime opening on October
It should be noted that when employees agree to switch shifts
with each other they may do so so long as no overtime is created
thereby. The department has employed permanent part-time employees
for more than fourteen years to fill out the Department schedules.
In October, 2000 the Department employed four permanent part-time
workers including Augustian. Augustian stated herein that she
understood that her working dates at the Department could change if
a full-time employee decided not to take vacation or holiday as
scheduled, or if a full-time employee took her hours. However,
Augustian was unaware of the circumstances under which she could be
bumped by full-time employees. Augustian stated that she generally
works for the Department ten days in each month, although there is
no guarantee and she has no regularly assigned shift when she is
assigned to work. Augustian also stated that she gives Lieutenant
Treml her schedule at her second job at least three months in
Bernetzke would not have been called to work on first shift
from her regular day off on October 20th, as Treml believed no
extra employees were needed on that shift. Treml stated that in
his opinion an unscheduled opening is one that occurs within 24
hours before the shift, due to vacation, holiday, training or
scheduled absences. In Treml's opinion if vacation,
holiday, training or scheduled absences are scheduled more than 24
hours in advance, the shift becomes a scheduled open shift which
can be filled by part-time employees, according to the parties'
past practice over the past fourteen years. Treml also stated that
full-time employees have only bumped part-time employees in shift
preference situations where a full-time employee is scheduled to
work on a back shift and wishes to move up.
POSITIONS OF THE PARTIES
The Union noted that if the County has at least 24 hours
notice the contract requires that a vacancy in a shift should be
offered first to full-time employees in that classification who are
scheduled to work that day, then to full-time employees in that
classification who are off duty that day and then to full-time
employees in any classification. Only after such offers are made
and refused may the County ask part-time employees if they wish the
vacancy. In the instant case, Paula Bernetzke was off duty on her
regular day off on October 20th. Lieutenant Treml did not ask any
full-time employees in any of the three classes of employees
mentioned in Article 3, Section K if they wished the opening.
Rather, Treml scheduled a part-time employee, Marlene Augustian
into the first shift October 20th opening. It was at this point
that Bernetzke attempted to bump Augustian to second shift on
October 20th and take the first shift opening as overtime. Treml
denied this bump and put Augustian back on the schedule on the
first shift on October 20th. Thereafter, a third shift full-time
employee bumped into the open second shift and Bernetzke asked
Treml again if she could take the first shift on October 20th to
which Lieutenant Treml responded in the negative, leaving Augustian
in first shift on October 20th.
In this situation, the Union argued that the contract is clear
and unambiguous. As such, there is no contract basis for the
County's argument that there is a distinction between scheduled
open shifts and unscheduled open shifts. In the Union's view, an
unscheduled open shift is any open shift arising with more or less
than 24 hours notice to the County. Therefore, the County has no
grounds upon which to support its placement of Augustian into the
first shift opportunity on October 20th without having followed the
strictures of Article 3, Section K regarding offering that work to
full-time employees first.
The Union also argued that there is a clear and unambiguous
practice to allow full-time employees to bump part-time employees
for shift preference. In this regard, the Union noted that both
Marlene Augustian and Paula Bernetzke testified that as part-time
employees for the County they had been bumped out of their part-time shifts by full-time
employees. In addition, both Augustian
and Bernetzke stated that at times full-time employees did not ask
them whether they could bump them and the result was that as part-time employees, they did
not work a shift from which they had been
The Union noted that Lieutenant Treml stated that it would
have been no problem for Bernetzke to bump Augustian off first
shift if Augustian had been available to work third shift. The
Union found this argument irrelevant. In addition, the County's
concern about paying two employees overtime as a result of a ruling
in favor of the Union in this case would not necessarily occur.
Thus, if the County had gotten a part-time employee for the third
shift and paid Bernetzke overtime on first shift the County would
only have paid one overtime shift on October 20th. Thus, the Union
urged that the full-time employee shift preference has been
widespread, consistent and mutually accepted by the parties and
constitutes a past practice which has operated without regard to
part-time employees' availability to work a different shift on the
day in question. Therefore, the Union urged that the grievance be
sustained and that Bernetzke be made whole.
The County argued that there was no overtime available on the
first shift on October 20th and that therefore the preference
provisions of Article 3, Section K do not apply in this case.
Here, Lieutenant Treml had posted an opening long in advance which
the County did not consider to be an unscheduled open shift.
Rather, employees could have signed up for that shift at any time,
prior to October 20th. The County noted that the Grievant claimed
that full-time employees have always had a preference over part-time employees for shift
selection and that therefore, she should
be able to receive overtime whenever she wants it. The County
argued that this has never been the case in the County.
On October 20th, the Grievant was on her regular off day and
she had no right to displace, on her own initiative, any other
deputy, either full or part-time, who was already scheduled on the
duty roster in order to give herself overtime that day. The
County noted that it has regularly used part-time employees to fill
work rotations because of vacation, training and scheduled absences
and that the Department cannot maintain adequate staffing without
regular part-time employees. When the October 2, 2000 schedule
came out for October 20th, Bernetzke was then on her day off,
Augustian was scheduled to work in the first shift slot and no
overtime had been authorized for first shift. This type of
situation has occurred regularly in the Department and no
grievances have been filed previously.
The County noted that Bernetzke could have taken the overtime
on third shift or she could have traded with another deputy and
worked first shift at overtime assuming she received a proper
trade. However, Bernetzke did not even attempt to make a trade; she
merely crossed out Augustian's name without consulting Augustian or
Lieutenant Treml. In this fashion, Bernetzke attempted to grant
herself unnecessary and unauthorized overtime on first shift as no
extra employees were needed on first shift that day. The County
noted that, in any event, Bernetzke would not have been called
in to work first shift on October 20th. As Article 3,
Section K is not applicable because this is not an "unscheduled
open shift," the County urged that no violation of the contract has
occurred herein and that the grievance should be denied and
dismissed in its entirety.
The grievance, dated October 26, 2000, was filed by Bernetzke
on her own behalf. The grievance seeks compensation for the
Grievant of eight hours overtime pay and an order that the County
"cease and desist any further violations" of Article 3, Section K.
The grievance also states that "(t)he employer violated the terms
and conditions of the Collective Bargaining Agreement by refusing
to recognize shift selection rights of a full-time employee over a
The labor agreement at Article 3, F(1) states that "whenever
possible and practicable overtime shall be distributed equally
among full-time personnel in each classification before being
offered to other full-time employees and then permanent part-time
personnel." This is the context in which this case must be
decided. In the instant case, management knew more than 24 hours
before the vacancy that there would be a need to fill an open shift
on October 20, 2000. Where, as here, the Grievant seeks overtime
pay for a contract violation, the initial inquiry must be whether
the overtime provision of the agreement (Article 3F) requires such
a payment to the Grievant in the circumstances.
Article 3, F(3) addresses the distribution of overtime where
there is more than 24 hours notice. Pursuant to this clear
language, the County was required to offer the first shift opening
occasioned by Officer Karman's holiday request to full-time
officers scheduled to work on October 20th. This would have
allowed officers working on October 20th on second and third shifts
to "move into the open shift according to seniority" (at straight
time). However, this did not happen as Lieutenant Treml offered
the first shift opening (at straight time) to part-time officer
Augustian. Had Treml followed Article 3 F(3), a second or third
shift opening would likely have been created which should have been
"offered up for overtime to full-time employees in order of least
overtime to most overtime." 1/
1/ In this case, no evidence was proffered
second and third shift full-time employee(s) might have requested
the first shift opening and which full-time employee had the least
It is clear from the facts of this case that Bernetzke was not
contractually eligible to take the first shift opening on October
20th as she was not scheduled to work that day. In addition, it
is clear that Bernetzke had no authority to designate a shift as
overtime for herself.
There is simply no contractual basis for such an action by a
bargaining unit member no matter what errors management may have
made in administering the contract.
The Grievant has alleged and argued that Article 3, Section K
Shift Selections is applicable to this case. However, the facts
of this case do not support this assertion, given the language of
Article 3, Section K. In this regard, I note that Article 3,
Section K details the finding process for regular shifts. Article
3, Section K at paragraph 3 describes the shift preference
procedure for non-regular shifts by detailing the employees who
must be offered "an unscheduled open shift" when there is "at least
24 hours" notice, when there is "less than 24 hours advance notice"
and when all full-time employees scheduled to work on the day in
question have refused the shift. None of these provisions applies
to Bernetzke, as she failed to prove that all full-time employees
scheduled to work as officers on October 20th had refused the first
shift opening. Indeed, the record demonstrates that those
employees were never offered the first shift opening and therefore
had no opportunity to accept it or refuse it.
Lieutenant Treml stated herein that he believed an unscheduled
open shift is one that occurs 24 hours before the shift due to
vacation, holidays or training; but that if training, holidays or
vacation are scheduled more than 24 hours before the start of the
shift, the shift becomes a scheduled open shift which can be filled
by permanent part-time employees. The difficulty with this
position is that it is unsupported by any contractual language. In
this regard, I note that a scheduled open shift is neither referred
to nor defined anywhere in the parties' labor agreement or in the
record herein. This argument is, therefore, unpersuasive.
The County has argued that it has regularly used part-time
employees to fill rotations due to vacations, training and
scheduled absences and that the Department cannot maintain adequate
staffing without utilizing regular part-time employees. This is
undoubtedly so, given the work schedules made a part of the record
herein. However, the clear contract language fails to grant the
County the right to do as it did in this case. Rather, Article 3
F(3) makes no reference to the use of part-time employees,
referring only to full-time employees. 2/ Absent evidence of a
clear past practice or bargaining history to the contrary (even
assuming such could be successful), Article 3 F(3) must be applied
as it is written. I find the County failed to proffer any evidence
of bargaining history to prove the existence of such past practice.
2/ Indeed, Lieutenant Treml could have
assigned a regular
part-time employee to work on October 20th after following Article
3 F(3) if no full-time employee wished to work the overtime shift
The Union argued that there is a clear and long-standing past
practice that full-time employees can bump part-time employees for
shift preference purposes. I need not rule on this
issue as I have found Article 3, Section K inapplicable to this
case. Based upon all of the evidence and argument and the specific
allegations of the grievance herein, I find Bernetzke was neither
eligible for nor entitled to the reliev she sought herein and I
issue the following
The County did not violate the collective bargaining agreement
when it restricted Grievant Bernetzke from working first shift on
October 20, 2000. The grievance is therefore denied and dismissed
in its entirety.
Dated at Oshkosh, Wisconsin this 29th day of June, 2001.
Sharon A. Gallagher, Arbitrator