BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
EAU CLAIRE CITY EMPLOYEES, LOCAL NO.
AMERICAN FEDERATION OF STATE, COUNTY AND
CITY OF EAU CLAIRE
Mr. Steve Day, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, 318 Hampton
Court, Altoona, Wisconsin 54720, appearing for Eau Claire City Employees, Local No. 284,
American Federation of State, County and Municipal Employees, AFL-CIO, referred to
below as the
Mr. Jeff Hansen, Assistant
City Attorney, City of Eau Claire, 203 South Farwell Street, P.O. Box
5148, Eau Claire, Wisconsin 54702-5148, appearing on behalf of City of Eau Claire,
below as the City or as the Employer.
The Union and the City are parties to a collective bargaining agreement which was in
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance captioned by the parties as No. 2000-14. The
Commission appointed Richard B. McLaughlin, a member of its staff. Hearing on the matter
held on August 15, 2001, in Eau Claire, Wisconsin. The hearing was not transcribed. The
filed briefs by October 18, 2001.
The parties' statements of the issues are not identical, but essentially stipulate the
Did the City violate the contract when it failed to pay one
of overtime for the Union
committee that met with management on November 7, 2000?
If so, what is the appropriate remedy?
Both parties to this agreement are desirous of reaching an
amicable understanding with respect
to the employee-employer relationship that is to exist between them, and enter into an
covering rates of pay, hours of work, and conditions of employment, as well as procedures
reducing potential conflict.
Both parties to this agreement will cooperate so that there will be
a harmonious relationship and
all negotiations and grievance processing will be considered business of the City and shall be
conducted during regular hours of work when possible with no loss of wages for the
. . .
Article 14 OVERTIME
Section 1. Employees shall receive one and one-half
(1½) times their regular hourly rate of pay
for all hours worked in addition to their regular standard work day and/or the standard work
and a minimum of one (1) hour shall be paid for all overtime. For the purpose of computing
pay, vacation, holidays, sick and injury leave shall be considered as time worked.
Article 29 GRIEVANCE
. . .
Section 7. Employees shall be entitled to any
representation that they choose in processing
grievances. Employees shall be entitled to two representatives at the
supervisor level, three representatives at the
department head level, and four representatives at
each management level thereafter. Grievants shall not be counted as representatives. When
investigating and processing a grievance, employees and their representatives shall, when
be released from work without loss of pay. Employees and grievants who attend meetings
purposes of grievance settlement shall give their immediate supervisors at least one (1)
notice of said meetings when possible.
Jim Fletty, Al DeSouza and Bob Horlacher are the named grievants. The parties do
dispute the facts underlying the grievance. Brian G. Amundson, the Public Works Director
summarized those facts in a memo dated December 22, 2000 (references to dates are to
noted otherwise), which states:
This memorandum is in response to a grievance dated December
11, 2000, which was the result
of an oral grievance on November 15, 2000. The oral grievance was reduced to writing, and
second step request was received by the Department Director on December 15, 2000.
A grievance meeting took place between
3:30 p.m. and 4:30 p.m. on Tuesday, November 7,
2000, between Union members and Street Division supervisors. The Local 284 employees
denied overtime pay for the time period after 4:00 p.m. The Union feels that this is a
Article 29, Section 7 of the contract.
A meeting was held on November 7, 2000
between three (3) Union representatives, Mike
Barnhardt, Street Maintenance Manager and Russ Nemitz, Street Supervisor. The purpose of
meeting was to discuss a grievance with respect to the method used by management for
time-off during the 9-day gun deer hunting season. The meeting started at 3:30 p.m. and
4:30 p.m. The Union employees were paid regular time for the 30 minutes between 3:30
4:00 p.m., but were denied overtime compensation for the 30 minutes between 4:00 p.m.
The Contract indicates that when processing
a grievance, the employees and their representatives
shall, when possible, be released from work without loss of pay. The employees were
work at 3:30 p.m. to attend a grievance meeting. The regular work day ended at 4:00 p.m.
that time the employees were conducting Union business, not working nor scheduled to
work, as they
had already been released from work at 3:30 p.m. Review by the Department Director did
evidence of a contract violation and therefore the grievance is respectfully denied.
The Union's written confirmation of the oral grievance lists Article 29, Section 7 as
provision governing the grievance, and the written grievance adds the Preamble.
The balance of the background is best set forth as an overview of witness testimony.
Horlacher is currently Union President, and has worked for the City for roughly
He noted that the Preamble was placed into the labor agreement in 1968 and has not been
since. The parties had, at one time, bargained at night. City bargainers questioned the
wisdom of the
approach, and the parties mutually agreed that the Preamble indicated bargaining should
work hours. From that time on, the parties bargained during regular hours. In a proposal
8, 1998, the City proposed to "place a period after the word 'relationship'" in the second
of the Preamble. This would have changed the parties' practice, but the Union did not agree
Barnhardt schedules grievance meetings at 3:30 p.m., without regard to the
complexity of the
issues involved. Horlacher expressed doubt that the matters to be discussed on November 7
be handled within thirty minutes. He believed Barnhardt schedules meetings for one-half
without regard to the issues needing discussion. In the past, meetings have lasted beyond
but seldom beyond 4:10 p.m. Horlacher has left meetings at 4:00 p.m. in the past
forewarning. Mediation sessions during bargaining have extended past 4:00 p.m. without the
claiming overtime. Horlacher thought the November 7 meeting was proceeding productively,
intended to stay until its completion. He did not question Barnhardt regarding overtime, and
Barnhardt nor Nemitz offered it. Horlacher did, however, expect to get paid, including the
Barnhardt has scheduled grievance meetings at 3:30 p.m. for roughly the past five
has conducted perhaps twelve such meetings. Some meetings have gone beyond 4:00 p.m.,
is difficult to predict when they will. During the meeting on November 7, the Union
grievance the City had not anticipated discussing. Barnhardt's flexibility in scheduling
limited by productivity concerns. Morning meetings can separate crew members, and
impact work performance. Setting meetings late in the afternoon minimizes these adverse
consequences. Barnhardt acknowledged he can end meetings when he wants, and that he can
overtime on an hourly basis for meetings that extend beyond 5:00 p.m. Horlacher did not
whether the Union representatives would be paid for staying at the meeting, and Barnhardt
offer any comment on whether their time would or would not be compensated.
Peters has served as the City's Director of Human Resources since January 1, 1985.
an active role on the City's negotiating team. The 1998 proposal was not offered to address
Union's right to overtime for processing grievances.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Brief
After a review of the evidence, the Union argues
that the second paragraph of the contract's
Preamble "does not preclude the payment of overtime for grievance meeting"
but "encourages such
grievance handling to be done during regular hours of work when possible."
Due to the late
scheduling of the November 7 meeting, it was impossible to complete the meeting during
hours. The Preamble demands that meetings not produce a loss of wages, and contractual
is inextricably linked to wages.
Barnhart has the contractual authority to schedule grievance meetings earlier in the
stop the meeting at the close of regular hours; or to continue the meeting without authorizing
payment. That he did not select one of these options cannot be held against the Union. That
Barnhart is paid overtime for attending meetings beyond the close of his shift should play
in the interpretation of the labor agreement.
The Union also argues that "the City is simply trying to get by unilateral action what
to gain in bargaining." The City tried, without success, to eliminate the second paragraph of
Preamble during "negotiations for the July 1, 1998 contract." Grievance arbitration should
a vehicle for undercutting bargained language.
The Union concludes that "the Arbitrator should sustain the grievance." As the
remedy, the Union seeks an order that "the City . . . pay each of the three Union officers
of overtime for the meeting they attended on November 7, 2000."
The City's Brief
After an overview of the evidence, the City asserts that the Union's position "is not .
consistent with the contract language or past practice." Under Article 29, Section 7, the
grievance team "had been 'released from work' . . . to perform union duties." Thus, they
"'working' when the meeting went past 4:00 p.m." Thus, they were not eligible for
Article 14, Section 1.
That "union representatives have participated in these meetings past the 4:00 p.m.
time in the past without complaint or request for overtime" affords further reason to deny the
grievance. They were not required to stay beyond 4:00 p.m., and thus put in the time after
of their regular shift on a voluntary basis. Because the City did not assign them to stay at
meeting, this voluntary effort cannot be compensated with overtime.
Barnhart testified that most grievance meetings can be completed in one-half hour,
is why he sets the meetings at 3:30 p.m. This fully complies with the directive of the
of the employees suffered any loss of wages, and thus the Preamble has no bearing on their
The Preamble's silence on the issue of overtime cannot be held against the City.
Because the contract language and past practice "reinforces management's decision" it
follows that the "the grievance should be dismissed."
The issue and underlying facts are essentially
stipulated. The number and breadth of
applicable contract provisions complicate the grievance. Those provisions are the Preamble's
paragraph, Article 14, Section 1 and Article 29, Section 7.
The relationship of these provisions and their
bearing on the grievance is not clear and
unambiguous. There is some evidence of past practice and bargaining history to address the
ambiguity. Evidence of bargaining history is, however, of limited value. It underscores the
concern that the City is attempting to secure through arbitration what it could not win in
However, the deletion proposed in 1998 has no affect on the grievance. Even if the Union
to the deletion, Article 29, Section 7 poses the same interpretive dispute by demanding
be processed "when possible" during regular work hours.
The applicable language supports the Union's view that its committee is eligible for
by staying until 4:30 p.m. The Preamble's second paragraph establishes this by stating
processing will be considered business of the City." As such, the work can be compensated
overtime. This turns the eligibility analysis to Article 14, Section 1.
The first sentence of Article 14, Section 1 makes overtime available for "all hours
beyond the regular workday or work week. The City's argument that the committee was not
"working" after 4:00 p.m. lacks a solid contractual and factual basis. Article 29, Section 7
committee "shall . . . be released from work" and Article 14, Section 1 limits overtime
"hours worked." Neither affords the City a persuasive defense against the overtime claim.
sentence of Section 1 establishes that time spent in non-work status can be summed to
overtime pay. For example, time spent on "injury leave" is "time worked" when calculating
Beyond this, it is evident the City considers grievance processing time worked by a
falls short of binding the City regarding the labor agreement, but establishes that treating
processing as time worked is neither unknown nor unpersuasive to City management.
The weakness of the City's position is that their reading of the governing provisions
be the same even if the reference "will be considered business of the City and" was removed
Preamble's second paragraph. It is a fundamental goal of contract interpretation to grant
to all the terms of an agreement. The City's reading of the Preamble is essentially a policy
the language, asserting that grievance processing is an ineffective use of overtime. However
persuasive that policy view may be, it cannot support an interpretation of the contract that
meaning to bargained language.
That the Union has established a contractual basis for overtime eligibility does not,
establish that the requested overtime has a basis in fact. It is undisputed that Barnhardt did
and that the Union representatives did not request overtime as a condition of staying beyond
p.m. The Union thus asserts that its contractual claim is so strong that the work involved did
have to be assigned.
Neither contract nor fact supports this claim. Union representatives have not made
meetings that extend a few minutes beyond 4:00 p.m., and Union representatives have left
at 4:00 p.m. without adverse consequences. The City asserts that this establishes a practice
time spent beyond 4:00 p.m. voluntary. However, the evidence falls short of establishing an
understanding on this point. At most, the evidence demonstrates the parties' mutual
treat time spent beyond 4:00 p.m. as a case by case occurrence. The City does not view
termination of meetings lasting beyond 4:00 p.m. as insubordinate, and Union representatives
acknowledge that the City can terminate meetings at 4:00 p.m. That the parties have been
willing to spend a little time beyond 4:00 p.m. to address grievances falls short of
binding practice. Past practice evidence shows no more than that there is no practice that
a common understanding on the circumstances by which grievance processing becomes
This focuses the grievance on the contract, and the contract does not support the
claim on this point. The final sentence of Article 14, Section 1 specifies those types of
that must be included in the calculation of overtime. Significantly, grievance processing is
included. This makes the Union's assertion that the committee could qualify for overtime
operation of the contract unpersuasive.
Against this background, the Preamble's second paragraph must be reconciled with
14, Section 1 and Article 29, Section 7 on a case by case basis. Clear management
Union representatives to stay beyond 4:00 p.m. authorizes overtime payment. In the absence
an assignment Union representatives are free to leave at 4:00 p.m. without adverse
Prior to leaving, Union inquiry regarding the availability of overtime should afford the
mutual opportunity to consider the desirability of proceeding beyond 4:00 p.m. In the
clear direction, arbitral requirement of overtime demands facts demonstrating City conduct
undermines agreement provisions.
Such facts are not present here. There is no evidence the post 4:00 p.m. discussion
have been put off until regular hours. There is no evidence any member of the committee
wages or an overtime opportunity by attending the meeting. Nor does the evidence indicate
the meeting for 3:30 p.m. establishes an abuse of discretion. The City cannot act to force
processing outside of regular hours without violating the Preamble's second paragraph.
the evidence does not establish such an abuse. Rather, it indicates the discussion went
grievance Barnhardt anticipated addressing.
Because Barnhardt has the authority, it would have been preferable that he expressly
November 7 meeting or offer overtime for its continuance. However, his failure to do so is
a persuasive basis to order overtime through arbitration. The parties' past willingness to
4:00 p.m. undercuts this conclusion. Beyond this, the Union representatives could have
doubt on the point by putting the issue before
Barnhardt. Horlacher indicated he expressed doubt on whether the meeting could be
thirty minutes, but the timing and clarity of this expression of doubt is unclear. The City's
to assign overtime can not be abrogated in the absence of clear evidence of an abuse of
Under the broad language of the Preamble, resolution of any doubt concerning the
of overtime should come after an across-the-table request rather than an after the fact
Cooperation in a bargaining relationship demands that differences be aired at the table before
arbitration. To sustain the grievance on its facts could encourage a level of gamesmanship
outside the spirit of the language of the Preamble.
In sum, the Union has persuasively shown that the Preamble's second paragraph
spent processing grievances beyond regular hours eligible for overtime payment. The City
assign or authorize meeting time beyond regular hours to constitute "hours worked" under
14, Section 1. In the absence of evidence of a specific assignment to stay after regular
overtime payment is necessary unless the Union can demonstrate that the City's failure make
assignment constitutes conduct undermining the Preamble's second paragraph. In this case,
evidence does not meet this standard and no payment is required.
Although the agreement makes time spent in
grievance processing after 4:00 p.m. eligible for
overtime, on the facts posed by this grievance, the City did not violate the contract when it
pay one hour of overtime for the Union committee that met with management on November
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 27th day of November, 2001.
Richard B. McLaughlin, Arbitrator