BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY LIBRARY
LOCAL 1901-D, AFSCME, AFL-CIO
BROWN COUNTY (LIBRARY)
Mr. David A. Campshure, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, on behalf of Brown County Library Para-Professionals,
Local 1901-D, AFSCME, AFL-CIO.
Mr. James M. Kalny, City/County Human Resources Director,
on behalf of Brown County.
Brown County Library Para-Professionals, Local 1901-D, AFSCME, AFL-CIO,
the Union, requested that the Wisconsin Employment Relations Commission appoint a staff
to hear and decide the instant dispute between the Union and Brown County, hereinafter the
in accordance with the grievance and arbitration procedures contained in the parties' labor
The County subsequently concurred in the request and the undersigned, David E. Shaw, of
Commission's staff, was designated to arbitrate in the dispute. A hearing was held before
undersigned on March 8, 2001 in Green Bay, Wisconsin. A stenographic transcript was
made of the
hearing and the parties submitted post-hearing briefs in the matter by July 5, 2001. Based
evidence and the arguments of the parties, the undersigned makes and issues the following
The parties agreed to combine the grievances from the Unions representing the three
bargaining units of Library employees. The parties were unable to agree on a statement of
and have agreed the Arbitrator will frame the issues.
The Union would state the issues as follows:
Did the County violate the parties' collective bargaining
agreement, Article 7 in particular, when
it changed the 2000 summer hours for the Library system? If so, what is the appropriate
The County would state the issues as being:
Does Article 7 of the collective bargaining agreement
prohibit the County from setting Library
hours of operation?
The Arbitrator concludes that the following statement more specifically frames the
be decided in this case:
Did the County violate Article 7 of the parties' Collective
Bargaining Agreement when it changed
the hours employees were scheduled to work on Saturdays in the summer of 2000, from what
had worked the past summer? If so, what is the appropriate remedy?
The following provisions of the parties' Agreement are cited:
Article 1. MANAGEMENT RIGHTS RESERVED
Unless otherwise herein provided, the
management of the work and the direction of the working
forces, including the right to hire, promote, transfer, demote, or suspend, or otherwise
proper cause, and the right to relieve employees from duty because of lack of work or other
legitimate reason is vested exclusively in the Employer. If any action taken by the Employer
not to be justified, the employee shall receive all wages and benefits due h/er for such period
involved in the matter.
The Employer shall adopt and publish
reasonable rules which may be amended from time to time.
However, such rules will be subject to the grievance procedure.
. . .
Article 6. MAINTENANCE OF
A. The Employer agrees to maintain
existing benefits that are mandatory subjects of bargaining
and are not specifically referred to in this Agreement.
B. The parties further agree that certain
preexisting mandatory conditions of employment, which
were previously in other parts of the Agreement shall be placed in this part of the
mandatory conditions of employment are not meant to affect or limit the maintenance of
clause noted in Section A above.
Personal effects, such as glasses, watches, etc., damaged or
destroyed as a result of job duties
shall be replaced by the Employer.
The above stipulations are intended to cover
normal conditions that occur or exist; however,
should special conditions arise on matters that are mandatory subjects of bargaining, said
to be taken up with the Union to arrive at a satisfactory solution. Employees shall be given
of all their evaluations.
Article 7. WORK DAY
WORK WEEK NIGHT SHIFT DIFFERENTIAL 1/
The guaranteed work day and work week
for fulltime employees shall be seven and one-half
(7 ½) hours per day and thirty-seven and one-half (37 ½) hours per
The present employee work schedule and
work week shall remain as presently in effect and shall
not be changed except by mutual agreement by the Employer and the Union.
Employees who work after 5:00 P.M. shall
receive twenty cents (.20) per hour in addition to their
regular rate of pay. Night shift shall be paid on overtime hours but not included in hourly
rate of pay
for overtime computation.
Any deviation from the above schedule and
other schedules, because of special circumstances,
shall be by mutual agreement.
. . .
Article 11. OVERTIME
Time and one-half shall be paid for all
hours worked in excess of seven and one-half (7 ½) hours
per day or thirty-seven and one-half (37 ½) hours per week, whichever comes
first. Overtime shall
be worked with prior approval. There shall be no pyramiding of overtime hours under this
Overtime can be paid in cash or time off at
the option of the employee. Scheduling of days off
shall be by mutual agreement between Employer and employee.
Overtime work shall be performed by
employees in the bargaining unit who normally do the
work. For work beyond the normal work week, in a week in which a holiday falls, or sick
vacation is used, and in which the addition of the hours of the holiday and/or sick leave or
would result in a total in excess of thirty-seven and one-half (37 ½) hours, s/he
shall be paid at the
rate of time and one-half (1 ½).
1/ Paragraph 1 of Article 7 in the
Clerks' Agreement states, "The normal work day and work week for
employees shall be a portion of a seven and one-half (7 ½) hour day; the work
week shall be a portion of a thirty-seven and one-half (37 ½) hour work
This case involves grievances filed by each of the bargaining representatives 2/
the three groups of employees in the Brown County Library System Professionals,
Paraprofessionals and the Clerks bargaining units, which have been consolidated in this
by the agreement of the parties. Except for the Clerks' Agreement containing a reference in
paragraph 1 of Article 7 recognizing that it is a unit of part-time employees, the
relevant wording of
Articles 1 and 7 is identical in the three agreements.
2/ The three Unions will be referred to
hereafter collectively as "the Union", unless specifically referencing
a particular union.
The County maintains and operates a library system that includes a central library
eight branches in the various communities within the County's borders. The three AFSCME
unions represent the professional, para-professional and clerk employees in the County's
system. Pat LaViolette has been the Director and chief administrator of the Library since
Head Librarian at the Central Library for seven years prior to that and has been employed in
in various capacities before that since the early 1960's. Generally, Librarian III's in the
unit head the County's branch libraries and answer to LaViolette, and are responsible for
work schedules of the employees at that library.
All of the employees in the Clerks Unit work part-time in either 11 hours or 19
positions. There are both part-time employees and full-time (7 ½ hours/day,
37 ½ hours/week)
employees in the Paraprofessionals Unit. Except for one part-time employee, all of the
in the Professionals Unit work 7 ½ hours/day, 37 ½ hours/week.
Individual employees' scheduled
work hours may vary from individual to individual at the libraries and the hours of operation
from library to library.
On February 21, 2000, LaViolette issued the following memorandum to all Library
TO: All Staff
February 21, 2000
In the past, system-wide, we have been
open 32 hours less per week during the summer months
than during the winter months; yet, staffing remains at the same level. Our output measures
commitment to customer service make it virtually impossible to justify this reduction in hours
months of the year.
Beginning this year, system-wide, the
present Monday through Saturday Fall/Winter/Spring open
hours schedule will remain in effect year round. Due to budgetary constraints, Central will
open on Sundays from labor Day to Memorial Day.
By the following letter of March 1, 2000, the then President
the Professional Library
Employees Union responded to LaViolette's memorandum:
Re: Library Hours Summer Schedule
Dear Mrs. LaViolette,
Please be advised that the Library
Professional Union, AFSCME-Local 1901B objects to the
proposed change in hours during the summer months as outlined in your memo dated,
Article 7 of the contract between
Brown County and the Brown County Professional Library
"The present employee work
schedule and work week shall remain as presently in effect and
shall not be changed except by mutual agreement by the Employer and the Union."
Accordingly, the Union reserves its right to
file grievances as well as take other action to protect
the interests of its members.
Wisconsin Council 40
AFSCME, Local 1901B
By similar letters of March 14, 2000 and March 29, 2000,
respectively, the Library Para-Professional Union and the Library Clerks Union also
responded to LaViolette's February 21, 2000
LaViolette responded to the Library Professional Union's objections to the change in
hours with the following letter of April 24, 2000:
Caroline Haskin, President
Wisconsin Council 40
AFSCME, Local 1901-B
380 Main Avenue
Green Bay, WI 54302
We are in receipt of correspondence from
Betsy Friese, dated march 1, 2000, objecting to the
change in hours during the summer months. It is our understanding that when the contract
concerning the work schedule was negotiated, the parties' intent was to preserve the 37.5
weekly work schedule. We believe that management's setting of the hours within the 37.5
schedule is an established past practice which has not had to be negotiated in the past. We
to discussing the decision that has been made, at your request, but we will not be changing
believe to be established past practice.
Additionally, the contract states that any
grievance must be filed within ten days of knowledge
of the occurrence. The contract does not provide for an objection and reservation of rights.
We would be happy to discuss this matter if
you wish; however, we believe it is consistent with
the contract to deal with these issues when they arise.
Similar letters were sent to the Paraprofessional and Clerks
Hours of operation of the various branches have been altered in the past, however,
views as to what occurred in those instances differ. LaViolette testified to those instances as
examples of where she has in the past unilaterally changed the hours of operation without
with the Unions, albeit with having first discussed such changes with the affected employees.
Conversely, the Unions' witnesses testified that in those past instances changes in hours of
occurred for the most part at the request of the staff and after discussions, and after
the changes had been reached.
In this instance, LaViolette met with the Unions to discuss their concerns about not
to the shorter Saturday summer hours of operation, but maintained the position that the
not required to negotiate such a change. The Unions maintained their objection to the
all filed grievances in that regard on May 5, 2000. The change to full days on Saturdays in
summer (from half days) was implemented. The parties attempted to resolve their dispute,
unsuccessful and proceeded to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Union takes the position that the County violated the parties' Agreement when it
the work schedule from half days on Saturday during Summer months to full days on
the Summer of 2000 without the Union's agreement. In support of its position, the Union
that the language of Article 7 WORK DAY WORK
WEEK NIGHT SHIFT DIFFERENTIAL,
is clear and unambiguous, stating "the present employee work schedule and work week shall
as presently in effect and shall not be changed except by mutual agreement by the Employer
Union." In this case, employees had not previously been required to work a full day on
during the Summer, but were required to do so in 2000 without the agreement of the Union.
there can be no question that the work schedule of those employees was altered without
agreement. The Union asserts that it is not necessary to resort to technical rules of
when the wording of the agreement is unambiguous, and that the clear meaning will
applied. Citing, Elkouri and Elkouri, How Arbitration Works,
(5th Ed.) p. 470.
If the plain wording of Article 7 is ignored, the County would have the green
light to alter
work schedules at its whim and the negotiated language requiring mutual agreement for
changes would be rendered meaningless. Further, it would be an unreasonable infringement
Union's right to bargain over the mandatory subject of bargaining of hours of work.
The County's interpretation that the second and fourth paragraphs in Article 7
mutual agreement for schedule changes only applies to the guarantee of a 7 ½
hour work day and
37 ½ hour work week in the first paragraph, is self-serving, absurd, and
contradicted by the County's
own evidence. On cross examination, LaViolette referred to "work schedule" as being the
hours employees were scheduled to work, rather than the number of hours they are
day or per week, and also admitted that the County changed employee
"work schedules", rather than the number of hours per day or per week that they were
The letters confirming offers of employment submitted by the County also contain direct
to a specific work schedule, clearly stating the work schedule in terms of days of the week
hours. While those offers also contain the statement that "this schedule is subject to
Article 7 requires that any change is subject to mutual agreement. That language
being clear and
unequivocal, it is not overridden by a contradictory statement in a letter offering
The Union next asserts that the County's reliance on its management rights is
While the County argues that Article 1 gives it the unrestricted right to change
schedules, that management rights provision is prefaced by the phrase "Unless otherwise
provided. . . ." A basic rule of contract interpretation is that general contract language is
by more specific provisions. In this case the wording of paragraph 2 of
Article 7 specifically restricts
the County's right to alter employee work schedules. The provision further restricts that
paragraph 4 stating, "Any deviation from the above schedule and other schedules,
because of special
circumstances, shall be by mutual agreement." Thus, the specific provisions requiring that
in employee work schedules be mutually agreed upon are controlling.
It is also standard arbitral practice to reject interpretations of contract language that
in harsh, absurd or nonsensical results. How Arbitration Works, p. 495.
That would be exactly the
result yielded by the County's interpretation of Article 7. LaViolette testified that it is
understanding that Article 7 gives the County the right to schedule employees any time
12:01 a.m. Sunday and 11:59 p.m. Saturday, as long as they get
7 ½ hours per day and 37 ½ hours
per week. According to the Union the clear intent of paragraphs 2 and 4 of
Article 7 is to maintain
the current employee work schedules, absent mutual agreement to change, and not to
guarantee a 7 ½
hour work day and 37 ½ hour week, as the latter is served by paragraph 1
of Article 7.
While the County contends it has an established practice for altering employee work
without obtaining the agreement of the Union, the instances in which the County claims to
unilaterally changed employee work schedules are not sufficient to establish a binding
of the alleged unilateral changes in employee work schedules presented by the County
situation in this case, in which the County made a change over the objection of one or more
bargaining units. In most of the instances cited, the change was not only suggested to
by the employees of one of the bargaining units, the schedule change, while altering the
particular branch or branches were open to the public, did not alter employee work
Further, the schedule change adding summer Saturday hours at four branches in 1998
the Union's position in this case. In that case
management had proposed the change at two locations for 1997, the Union objected,
and the parties
discussed and resolved the matter by agreeing to delay the schedule change until the
summer and expanding the number of locations.
Even if the County were able to establish that a practice of unilaterally changing
work schedules had existed, the clear contract language requiring mutual agreement for any
changes would take precedent. When a practice conflicts with explicit contract language, the
is controlling. How Arbitration Works, pp. 651-652. A related rule is that a
failure to grieve or
protest past violations of a clear contract rule does not bar that party, after notice to the other
from insisting upon compliance with the clear contract provision in the future. As the
Article 7 clearly states that employee work schedules shall not be changed except by
agreement, the provision is unambiguous and takes precedent over any alleged practice.
In its reply brief, the Union disputes the County's claim that Article 7 is
ambiguous and that
the phrase "employee work schedule" refers to the 37 ½ hour work week and a
7 ½ hour work day.
The first two paragraphs of Article 7 do not support such an interpretation. The first
unequivocally defines the work day as 7 ½ hours and the work week as
37 ½ hours, while the second
paragraph states that "the present employee work schedule and work week shall
remain as presently
in effect and shall not be changed except by mutual agreement by the Employer and the
(emphasis added) Use of the word "and" in that sentence is significant in that it indicates
"employee work schedule" and the "work week" are two separate and distinct things. As the
"employee work schedule" does not allude to the guaranteed work day or work week, it must
to the hours and days worked.
The County also relied on LaViolette's testimony as to what was allegedly said years
a former Union representative, now deceased, and a former president of the Professional
concurring with her interpretation. The Union objected to that testimony as hearsay. The
could have called the former Union president to corroborate LaViolette's testimony, but did
so. Because the individuals were not available for cross examination and their alleged
were offered for the sole purpose of proving the fact stated, LaViolette's testimony in that
should be afforded no weight. Further, when asked if she could recall the words used by the
union representative, she responded "he said that management can set the hours of operation
library." That is significant, as the County is free to set the hours of operation for the
however, it is not free to alter the work schedule or hours of work for the bargaining unit.
While the County asserts that in the last five years there have been at least nine
changes to the hours of operation of different branch libraries, only the opening of the new
in Denmark and Howard resulted in changes to work schedules. The change of
week night hours at DePere in 1995, the change of weekday opening times in
Southwest in 1999 and
2000, and the change in summer Saturday hours at Southwest in 1999, while resulting in
hours those branches were open to the public, did not alter employee work schedules.
addition of summer Saturday hours in 1998 at Ashwaubenon, DePere, East and Southwest
clearly the product of negotiations with the bargaining units.
The County's assertion that it was maintaining the status quo by not changing the
hours for the summer of 2000 is ridiculous. Saturday summer hours have differed from the
hours for the rest of the year since being implemented at the branches in 1998. Thus the
work schedule was one-half days on Saturday during the summer months and a full Saturday
the rest of the year.
Article 7 requires mutual agreement for any schedule changes and the County
discuss work schedule changes with the Union and then implement those changes absent
While the County argues that the Union is using LaViolette's good working relationship with
employees against her, the converse is just as likely. Since the three bargaining units rarely
to previous changes in the work schedule, LaViolette and the County have concluded that
management can now alter work schedules unilaterally.
Contrary to the accusation that the Union is "back dooring" a construction of the
that would require negotiation of a decision of what hours to operate, just the opposite is
true. It is
the County that is arguing it has the right to set operational hours and then is attempting to
circumvent Article 7 requiring mutual agreement for changes to employee work
the County has the right to establish the hours the library will be open to the public, it must
mutual agreement with the three bargaining units prior to changing the current employee
schedule to cover those hours.
The Union concludes that by changing the work schedule to include a full day on
during the Summer months in 2000, the County violated the status quo, past practice and
The Union requests that the Arbitrator sustain the grievance and order the County to reinstate
previous summer work schedule of partial Saturdays and to cease and desist from changing
schedule in the future unless by mutual agreement. The Union also requests that the
jurisdiction to verify compliance with the remedy.
The County takes the position that it has the right to change the hours of operation of
Library without the mutual consent of the Union, regardless of whether that change also
work hours of employees. In support of its position, the County first asserts that
nothing in the Agreement revokes the right of management to schedule Library hours
Article 1 of the Agreement provides in relevant part, that, "Unless otherwise herein
management of the work and direction of the working forces . . .is vested
exclusively in the
Employer." That is a clear expression of the intent of the parties to reserve to management
to operate the Library unless otherwise expressly stated to the contrary. As to setting hours
operation and scheduling work, such management rights have been viewed as being
strong. Elkouri and Elkouri, How Arbitration Works,
(5th Ed.) p. 726. While there have been some
restrictions on the work week imposed by Article 7, by its plain words in the first
guarantees a 7 ½ hour day and 37 ½ work week schedule. That
language is clear on its face. The
rest of the Article is, however, anything but clear. Use of the term "schedule" in
paragraph 2 creates
the ambiguity. The term "work week" most reasonably is viewed as referring back to
37 ½ hours per
week, however, the term "schedule" is not as easily given meaning. It is not helpful to use
words" definition, since the term has many meanings in labor relations and can mean the
normally worked by a group, the hours of work per day and per week for a group, as well as
hours that a particular employee is assigned to work within the day or week.
The County asserts that it is not clear what it is the Union reads the language to
President of the Clerks Union testified that she believes an individual employee's scheduled
work cannot be changed without Union agreement under the provision. Haskin from the
Professionals Union testified that if her individual schedule were changed, it would not
require Union agreement, but that the language refers more to "a collective work schedule."
According to the testimony, the Paraprofessionals believe that the reference to present
work goes to the "bargaining units' schedule." Reasonable people differing on reasonable
interpretations of the same language, there thus exists an ambiguity. This is further
the wording of paragraph 4 of Article 7. Use of the singular "schedule"
strongly suggests that there
is only one "schedule" referred to "above", and is consistent with the County's reading that
"schedule" in Article 7 is the 37 ½ hours work week, 7 ½
hour per day work schedule. There is no
guidance in the Agreement as to what constitutes the "other schedules", "special
who has to "mutually agree". It is clear that the meaning of these provisions is not plain
express words alone.
It is the County's view that Article 7 provides that regardless of the hours
is open, full-time employees are guaranteed 7 ½ hours a day and
37 ½ hours a week. There is nothing
in the agreement or in the record that describes a "collective work schedule" or a "bargaining
work schedule." This is due to the fact that individuals work different 7 ½ hour
days that total 37 ½
hours per week within the hours that the library is open to the public. The only established
work schedule in the Library, and in the record, is the 7 ½ hour day and
37 ½ hour week and that
work schedule has not been changed. That being
the case, the most reasonable reading of the ambiguous language of Article 7 is
that it guarantees a
schedule of 7 ½ hours per day, 37 ½ hours per week, which hours
can be scheduled at various times
during the hours the library is open to the public. The language of Article 7 prevents
hours of work per day or per work week without mutual consent, however, nothing in the
specifically limits the ability of the County to set the hours of Library operation. Such a
of management prerogative should not be imposed unless there is clear and unambiguous
of an intent to surrender that right.
Next, the County asserts that bargaining history and past practice establishes it is the
of the parties that Article 7 is to be read to permit management to set the hours of
operation of the
Library. Arbitrators seek to interpret collective bargaining agreements to reflect the intent of
parties and in determining that intent, inquiry is made as to what the language meant to the
when the agreement was written. How Arbitration Works, pp. 479-480.
LaViolette was the only
person testifying who was present at the negotiations of all of the Agreements involved in
since their inception. Her testimony is clear, uncontroverted evidence of what was intended
language of Article 7. LaViolette testified that it was always her understanding that
established schedule at the Library, and under the Agreement, was the 37 ½ hour
week and 7 ½ hour
day. She testified that her understanding is based on discussions with the long-time
of the Unions and the long-time President of the Professionals unit, both of whom had
LaViolette that the language was not intended to restrict her ability to alter the hours of
The Union could not bring forward anyone else who had been at the bargaining table to
LaViolette's credibility is further supported by other evidence in the record.
testified that she was stunned when she received the letter from the Union telling her that
with the hours she had set for the Weyers-Hilliard branch and that she immediately sent a
them that their concurrence was of no consequence. It is also uncontroverted that in the last
years there have been at least nine different changes to the hours of operation of the different
libraries. Except for the establishment of the new hours for the Weyers-Hilliard branch in
had never been a single letter agreeing to, or protesting, a change in the hours of operation.
2000 there had never been a demand to bargain or any questioning of management's right to
when service will be offered. Of note is the implementation of new Saturday hours in 1998,
LaViolette testified she did not negotiate, but imposed in the manner she thought best served
public. There is no evidence of any Union "agreement" or challenge to this change. This is
there has never been a practice or an attempt to challenge the hours of operation until
LaViolette had been making decisions concerning library hours for years with the apparent
concurrence of Union leadership, until there was a change in that leadership in 1999. It was
the change in
leadership that the letter agreeing to a change of hours was sent to LaViolette in an
attempt to begin
laying a basis for arguing a past practice in setting hours. However, the letter only serves to
that there had never been any correspondence of any type before this change in Union
If Article 7 is read as the Union asserts it should be, the County still should
prevail. It appears
that the presidents of the Professional and Paraprofessional units believe that the "schedule"
to in paragraph 2 and paragraph 4 of Article 7 is the scheduled days of
operation of the Library. If
the term "schedule" is interpreted to mean the hours of operation of the Library, or even a
schedule of hours within the hours of operation, as the Union has seemed to argue, the plain
would require "mutual agreement" for any change, i.e., both the Union and the
County must agree.
It is clear that there was no such agreement in this case. The Union asks as relief that the
hours in the future be what they were prior to the change that took place in 2000."
summer hours have varied. The contract in effect at the time this matter was initially
grieved was the
1996-1998 agreement. During the term of that contract summer hours changed, as it was not
1998 that branch libraries were even open on Saturdays during the summer. During the
Agreement, in 1999, the hours for two of the larger branches were modified and
newly opened, so there were no established summer hours for that branch at all. Accepting
Union's reading of the term "schedule", and noting that there was no agreement and that the
language of the agreement requires mutual agreement, there can then be no change. That is
occurred in this case. LaViolette did not change the hours for the summer, but maintained
schedule that was "presently in effect."
If the Union argues that the term "schedule" "presently in effect" somehow includes
summer hours change, then the wording of paragraph 4 must be considered under the
of the language. Changing the summer hours, is a "special circumstance" or "other
still requires mutual agreement. Thus, if Article 7 is read to prevent the County from
of Library operation without Union consent, the same language requires mutuality for a
change in the
"schedule" "presently in effect" or in "other schedules", and there is nothing in the
requires the County to change hours without mutuality. Either way, the end result is the
Nothing in the agreement required the County to change the hours in the summer, nor was
agreement to change those hours.
The County also asserts that the change of hours of operation in the Library should
subject to arbitration. The County should be allowed to determine when the Library should
operation as a formulation of public policy, particularly where, as here, the determination
on data and public demand. The decision as to the hours of operation is left to management
permissive subject of bargaining. While there may be a duty to bargain the
impact of that decision, the Union has not demanded to bargain in that regard or filed a
practice attacking the ability of management to unilaterally make that decision. The Union
do so because LaViolette has always followed the practice of first discussing these changes
they are implemented and then implementing her plan without consensus only if agreement
be reached. It appears that the Union is arguing that because LaViolette has gone to great
to work with employees to address their concerns, and has been successful in that regard,
there is a
past practice of mutual agreement on all changes in hours, and that the agreement should
be interpreted to require such mutuality as to any time hours are changed. While LaViolette
often had to force changes in the hours of operation, she is certain that she did not gain the
to exercise her management rights either. The County concludes that by arguing that
is prohibited from making the decision to change hours of operation where that change might
the hours of employees, the Union is "back dooring" a construction of the contract that
negotiation of the decision as to hours of operation, clearly an issue that is fundamentally one
formulation of public policy.
In its reply brief, the County again disputes the claim that the language of
Article 7 is clear
and unambiguous. The language was susceptible to at least three different interpretation by
Union's own witnesses. Further, looking at the plain words of the Article makes it clear that
are different ways that it reasonably can be interpreted. Reference to "the above schedule"
in the last
paragraph of Article 7 strengthens the County's interpretation. The only constant
"schedule" is the
7 ½ hours per day, 37 ½ hours per week schedule referenced in
Article 7. This could be the only
"above schedule" to which the provision applies. "Other schedules" could refer to individual
schedules which could be changed because of special circumstances by "mutual agreement."
Union reads the language to reiterate what is stated in the second paragraph, requiring a need
union confirmation any time the collective schedule of the Union's members are changed.
County questions why it would be necessary to restate exactly the same thing as is stated in
second paragraph. The County's reading is that "other schedules" refers to the individual
of employees and that the "mutual agreement" is the agreement between employees and their
supervisors. The Library has operated that way for years. If there is a need for a change in
employee's individual schedule because of special circumstances, those changes can be made
mutual agreement with individual members, e.g., changing schedules for vacations. Other
management is free to change the Library's hours of operation as long as the employees
work a 37 ½
hour week and a 7 ½ hour day. It is only a change in that "work schedule" that
requires the Union's
consent. Such a reading takes into consideration all of the words in the paragraph and does
render any of them redundant, but instead gives them full meaning, and thus, is the more
The Union argues that the County's construction is absurd and self-serving and states
LaViolette admitted she changed the employees' "work schedule". The testimony cited
the quibble that is occurring over the meaning of that term. While the County uses the term
schedule" in its offer letters to spell out the hours the employees will work within the
37 ½, 7 ½ hour
schedule, as noted in the offer letter, the County has always been of the opinion that those
subject to change.
The County reiterates its position that the right to set the hours of operation has not
directly or specifically abridged by the agreement. The management rights language of the
merely is a statement of what is already established under common law, i.e., that unless the
specifically abridges a management prerogative, management may exercise its discretion in
that right. Further, Article 7 does not say that management cannot set hours of
operation, but instead
speaks in terms of "work schedules." There is nothing in the agreement that references any
on "hours of operation" or "hours the library is open." If the decision in some ways affects
contractual provision, the impact of that change would need to be negotiated,
not the decision itself.
There has been no demand for such impact bargaining.
Another argument offered by the Union is that the County would be able to
schedule work hours at any unreasonable time under the County's reading of the management
clause. As LaViolette testified, there would be no logical reason for the Library to do so
the issue has arisen in the past, the Union has not shown any concern over it.
The Union's argument that there has always been agreement, and that therefore there
practice for the unilateral setting of hours, ignores the fact that on one occasion the Union
it important to verify that it agreed with the hours that LaViolette set. The letter only raises
question as to why it was not important to agree in writing previously. The answer is that
is trying to cultivate a new argument that it never believed existed until new Union
ambiguous language they believed could now be interpreted in their favor. Until recently,
understood that the language of the contract merely guaranteed the work week and work
The Union also attempts to argue at one point that the Summer hours are part of the
and then at another point, to argue that there is need to "change" to Summer hours. Under
Union's plain words interpretation, there would be a need to agree to any change of the
there is nothing that excepts summer hours changes. The Union should not be heard to both
no "change" can occur unless it is mutually agreed upon, and in the same breath state that
was required to "change" to the Summer schedule without mutual agreement.
The County requests that the grievances be denied.
As previously noted, this case combines grievances from the three bargaining units of
County's Library employees. Except for the Clerks' Agreement containing a reference in
paragraph 1 of Article 7 recognizing that it is a unit of part-time employees, the
relevant wording of
Article 1 and Article 7 is identical in the three agreements. For ease of reference, this
refer to the language of the Para-Professional Library Employees' Agreement.
The Union takes the position that while the County may unilaterally set the hours of
of the library facilities, it must obtain the mutual agreement of the Union to change the hours
employees are scheduled to work at the facilities. Conversely, the County takes the position
may unilaterally change the hours of operation of its library facilities, regardless of whether
change will also require a change in the hours employees work, so long as it maintains the
7 1/2 hour
work day, 37 ½ hour work week. In this instance, the change in the hours of
operation required a
change in the hours employees are scheduled to work at the library facilities on Saturdays
summer months from those they had been scheduled to work in the Summer of 1999.
The County relies on its rights reserved in Article 1 of the Agreement, "Unless
herein provided, the management of the work and the direction of the working forces. . . . is
exclusively in the Employer." The Union asserts that Article 7 contains a clear and
limitation on management's right to change employees' work hours.
Contrary to the Union's assertion, the wording of Article 7, paragraphs 2 and 4, is
and unambiguous. It is not clear on its face what "schedule" is being referenced in either
nor is it clear what constitutes "special circumstances" or who must reach "mutual
paragraph 4. In such circumstances, it is necessary to resort to the principals of contract
interpretation and probative evidence as to the past practice of the parties and the bargaining
in an attempt to discern the parties' intent. However, little guidance can be gleaned from the
past practice and bargaining history.
The evidence as to the parties' practice in the past with regard to changes in the
employees at a library facility have been scheduled to work shows at most a varied response
provides little guidance as to what the parties have viewed their rights to be in situations such
this case. In those instances cited where the actual hours employees were scheduled to work
facility were changed the change in evening hours at the DePere branch in 1995, the
change in Saturday summer hours at two branches in 1997, change in Saturday summer
hours at the
Southwest branch in 1999, the hours of the merged Denmark branch with the Denmark
Library in 1999, and the opening the new Howard branch facility
(Weyers-Hilliard) in 2000, the parties responded in a variety of ways. The changes at
branch in 1995 and the Southwest branch in 1999 were requested by the staff at those
Management's proposed change in Saturday summer hours at two branches for the summer
was put on hold after the Unions objected. Following further discussions with the Unions,
was delayed to the summer of 1998 and expanded to four branches. In the case of the hours
new Howard branch in 2000, at least the Professionals and Paraprofessionals Unions sent
written notice of their agreement to the new hours, albeit it appears this is the first time such
acknowledgement occurred. Thus, the only instance cited where the schedule of work hours
changed unilaterally by the County without objection or agreement by the Unions or at least
affected staff, was the merged Denmark facility in 1999. As noted previously, how the
acted in the past in such a situation thus provides little guidance in determining their intent
regard to the application of Article 7.
The evidence submitted as to the parties' bargaining history is limited to hearsay
with regard to what a now deceased prior representative of the Unions and a past president
Professionals Union had said to LaViolette. Such evidence carries little weight.
Looking to the wording and structure of Article 7 of the Agreement, however,
guidance. Paragraph 1 of the provision expressly guarantees a 7 ½ hour work day and
37 ½ hour
work week for full-time employees. The County's interpretation that paragraph 2
the same guarantee, in the form of a requirement that the County must first obtain the
the Union before it may alter the 7 ½ hour work day and 37 ½ hour work week,
would require a
conclusion that the parties intended to say the same thing twice and in two different ways, in
provision. In other words, one would have to conclude that paragraph 2 is redundant and
restates the guarantee expressly set forth in paragraph 1. An interpretation that would
wording of a provision meaningless or mere surplussage is to be avoided if there is another
meaning that can be given to those words.
As the Union asserts, another reasonable interpretation of the words "present
schedule and work week" in paragraph 2 of Article 7 is that it refers to the actual hours and
the week that there are employees presently scheduled to work at the facility or facilities in
This would be the broad schedule of hours that there are employees working and that cannot
changed except by mutual agreement of the County and the Union. Such an interpretation
be redundant and would give effect to all of the words in paragraphs 1 and 2. In that latter
the County's interpretation gives no meaning to the terms "present" and "presently in effect"
in paragraph 2. Use of those terms denotes an intent to identify and lock-in a schedule that
effect at a particular point in time, e.g., the
date on which the initial agreement was entered into or the dates on which successor
reached. However, if "employee work schedule" refers to the 7 ½ hour work day, 37
½ hour work
week in paragraph 1, there would be no need to further identify it as the schedule "presently
Paragraph 4 of Article 7 is somewhat more problematic in that it refers to "the above
and any other schedule". Under this second interpretation, "above schedule" could refer to
"present employee work schedule" referenced in paragraph 2. The wording of paragraph 4
to connote a temporary alteration in the present schedule of work hours due to "special
circumstances." This meaning is not inconsistent with the wording of paragraphs 1 and 2.
parties appear to conclude that the words "and other schedules" in paragraph 4 refers to
employee work schedules, in which case, "mutual agreement" could be between the
the individual employee in such instances. This would explain the lack of explicit reference
"Employer and the Union" as to who must reach such mutual agreement, as it could vary
schedules are in question. As the County suggests, "special circumstances" could mean
due to employee absences for vacations, illness, etc., or special projects or special events,
program at the Central Library to teach people how to use the internet.
It is not necessary, however, to completely define the application of paragraph 4, as
sufficient to determine whether it applies to the instant situation. It does not appear to apply,
situation involved a change in the hours that there are employees in general scheduled to
Saturdays in the Summer, and that the change was not to be temporary and was not based on
"special circumstances", referred to in paragraph 4.
The County correctly asserts that the right to set hours of the enterprise's operation is
important management right that should not be disturbed absent substantial evidence of an
cede the right. However, it also may equally be said that the right to bargain over the hours
employees work, both in terms of the number of hours and when they will work, is
recognized as an
important right of labor unions and ostensibly, one that should not be lightly considered to be
to management. The points are thus offsetting. Moreover, contrary to the County's
assertion that this case involves management's right to set the Library's hours of operation,
is not as broad as the County claims. While that right is impacted as a practical matter, a
the hours of operation that does not affect the hours that employees currently work is not
scope of this case. The hours employees are scheduled to work having been changed as a
the change in the hours the libraries were to be open on Saturdays in the summer months, the
in this case therefore is limited to whether management may change the hours employees are
scheduled to work at a library facility.
The County's claim that the Union's case must fail because a decision setting the
operation is not a mandatory subject of bargaining, and that it therefore only has a legal duty
bargain the impact of its decision, is beside the point. The crux of the issue in this case is
Article 7 contractually obligates the County to obtain the agreement of the
Union before it may
change the hours employees are scheduled to work. It is also noted in passing that the hours
day or days of the week that employees are scheduled to work is also a mandatory subject of
bargaining. See, e.g., City of Brookfield, Dec. No. 17947 (WERC, 7/80).
Last, the County asserts that as a factual matter, there was no "change" in hours that
the Union's agreement even under the Union's interpretation of Article 7. According to the
the decision was to not change the hours the libraries were to be open on Saturdays in the
from what they had been open in the Fall, Winter and Spring. The argument is clever, but
persuasive. The evidence indicates that the parties recognize an established period as
purposes of setting the libraries' schedules, i.e., that at approximately the same time each
libraries will change to their "summer hours." As shown by the parties' correspondence in
instance and by their responses in the case of management's proposal to change those
at two branches in 1997 to be open on Saturdays, the parties have viewed a change from the
summer's schedule to be a "change" from the status quo.
For the foregoing reasons, it is concluded that the terms "present employee work
and work week" in paragraph 2 of Article 7 of the parties' agreements refers to the hours of
and days of the week that employees are presently scheduled to work at a library facility or
constituting a limitation on management's rights, and that any change in that overall
schedule," such as occurred here, requires the mutual agreement of the parties. As the
unilaterally imposed the change in Saturday summer hours from the prior summer's hours
Unions' objections, it is concluded that the County violated Article 7,
paragraph 2 of the parties'
Agreement in doing so.
As relief, a return to the status quo ante is the usual remedy where a
party has improperly
made a unilateral change and it is deemed to be appropriate in this case, absent the mutual
of the parties to a different summer work schedule. While the Union has requested that the
undersigned retain jurisdiction to ensure compliance with the remedy, it does not appear that
necessary. The remedy is to return to the summer library work schedule that was in force at
the County's various library facilities in 1999 during the next summer period, absent
Based upon the above and foregoing, the evidence, and the arguments of the parties
undersigned makes and issues the following
The grievances are sustained. The County is directed to return to the summer work
that existed at each of its library facilities for the employees in each of the bargaining units
summer period of 1999, for the next summer hours period, absent mutual agreement of the
Dated at Madison, Wisconsin this 29th day of October, 2001.
David E. Shaw, Arbitrator