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. 2000-1. The
appointed Richard B. McLaughlin, a member of its staff. Hearing on the matter was held on
15, 2001, in Eau Claire, Wisconsin. The hearing was not transcribed. The parties filed
October 18, 2001.
The parties' statements of the issues are not identical, but essentially stipulate the
Did the City violate the contract when it did not pay ten
two-hour recall overtime
pay for January 18, 2001?
If so, what is the appropriate remedy?
Article 13 HOURS
. . .
Section 4. The regular hours of non-shift work will
be 8:00 a.m. to 4:00 p.m.
. . .
Article 14 OVERTIME
Section 1. Employees shall receive one and one-half
(1 ½) 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.
. . .
Section 5. Employees who are recalled to work after
the completion of their regular work day
by their supervisor shall receive a minimum of two (2) hours pay for each call.
The grievance names ten Street Division employees as grievants. The parties do not
the bulk of the facts underlying the grievance. Brian G. Amundson, the Public Works
summarized those facts in a memo dated February 3, 2001 (references to dates are to 2001,
noted otherwise), which states:
This memorandum is in response to a
grievance dated January 29, 2001, which was the result of
an oral grievance on January 22, 2001. The oral grievance was reduced to writing, and a
request was received by the Department Director on February 2, 2001.
A snow and ice control operation was
initiated on the morning of Thursday, January 18, 2001.
The employees reported to work at approximately 6:30 a.m. The employees were paid at the
overtime rate for the actual hours worked and the Union feels this is a violation of Article
5 of the Contract.
The supervisor called ten (10) employees to
begin ice control operations as a result of the early
morning snow on January 18, 2001. The employees reported to work between 6:30 a.m.
a.m. The called employees continued to work on the ice control into the regular work day
8:00 a.m. to 4:00 p.m. The called employees were paid at 1.5 times the regular
hourly rate for the
actual time worked prior to the start of the regular work day hours of 8:00 a.m.
Article 14, Section 5, states that employees
that are "recalled" to work after the completion of
their regular work day shall receive a minimum of two (2) hours pay. In this instance the
were "called" to start the work day early, and then continued the work into the regular work
hours. The requirements of Article 14, Section 1, apply in this circumstance, which is how
employees were compensated. Review by the Department Director did not find evidence of
contract violation and therefore the grievance is respectfully denied.
The balance of the background is best set forth as an overview of
Horlacher stated that the grievance poses no issue for the Sewer Crew, which
a two-hour call-in for similar circumstances. He acknowledged that Street Division
employees have worked
prior to the start of a shift without receiving the two hour call-in provided the Sewer Crew.
Sewer Crew is a part of the Utilities Division. In his view, the Section 1 minimum call-in
cases in which the City extends the work day to complete a project.
Extending the work day is not comparable to the inconvenience caused by an
or early morning call to work.
Section 1 came into the labor agreement in 1971, while Section 5 was not created
Horlacher did not, however, participate in the discussions that prompted the creation of
Barnhardt called in the ten employees because the weather conditions demanded the
crew. Each member of the crew stayed for the regular work shift on January 18. In his
Section 5 call-in applies only to late night call-ins where an employee is not able to extend a
shift of work. He could not recall authorizing a two hour call-in. He has extended morning
many occasions. In such cases, he applies the Section 1 call-in minimum, as he did on
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 Article 14, Section 5 "applies in the
instant case because this was a recall to work after the
completion of their regular work day."
Article 13, Section 4 sets the regular hours of work for Street Division employees. On
2001, those employees finished their regular shift at 4:00 p.m., then went home. In the
hours, "the employees received a phone call from their supervisor to come in early to sand
The regular work day was done, and they were recalled to work. Thus, the two hour call in
In contrast, the one hour call in of Article 14, Section 1 "was bargained for two
The first was "to enable the City to finish off a job" and the second was to provide a
of compensation "for the inconvenience of staying even fifteen minutes late."
There is no past practice to address the grievance. Sewer Crew members routinely
the two hour call in, but that division is separate from the Street Division, and thus there is
practice. The Section 1 call in was bargained in 1971, while the Section 5 call in was
1973. The Union contends that "the higher two hour minimum was bargained to compensate
higher inconvenience of being recalled into work in the middle of the night." A Section 5
call in is
less predictable than a Section 1 call in, and thus imposes greater inconvenience on
conclude that a Section 5 call in cannot apply if an employee continues to work into their
is an absurd result.
The Union concludes that the grievance should be sustained and that the City should
ordered "to pay the ten Street Division employees the minimum two hours of overtime on
18, 2001 (less whatever overtime they were paid for work before 8:00 a.m.)."
The City's Brief
After an overview of the evidence, the City asserts that the Union's position "cannot
sustained" since "this was not a 'recall'." Unrebutted testimony demonstrates that "two-hour
pay was intended to establish a minimum compensation for workers who are called back to
their shift for a brief period of time and then return to their homes." This does not apply to
Beyond this, Article 14, Section 1 clearly and unambiguously demands payment of
one-half for all hours worked "in addition to" an employee's regular hours. Under Section
1, the City
must provide a one-hour minimum, not the two hours requested by the Union. Consistent
practice supports the City's position. The situation grieved in this case "has occurred
times during the tenure of the street superintendent", yet has not produced a grievance until
The Union could not rebut the evidence supporting this clear practice.
Practice relevant to the Sewer Crew has no bearing on Street Division employees.
the evidence concerning the Sewer Crew is considered, it rests on unreliable hearsay.
language and past practice support the City's view, and the "grievance should thus be
The issue and underlying facts are essentially undisputed.
The relationship of Sections 1 and
5 of Article 14 complicates resolution of the grievance. Standing alone, neither is
to require interpretation. The complication is that they do not stand alone, and each must be
The factual background highlights this complication. Sometime after the completion
work day on January 17 at 4:00 p.m., Barnhardt summoned ten Street Division employees to
work on January 18 at roughly one and one-half hours prior to the start of their regular work
8:00 a.m. Because the call-in was for a period of time greater than the one-hour minimum
1, but less than the two-hour minimum of Section 5, it poses the distinction between the two
Their relationship cannot be considered clear and unambiguous. The City contends
addition to" reference of Section 1 unambiguously applies to work that extends the
beginning or end of a regular work day. The difficulty with this view is that it reads
"in addition to"
as "immediately proximate to". This difference poses issues beyond grammar. Under the
Section 5 applies only when an employee responds to a call-in by leaving home, reporting to
and then returning home without working a regular shift. Barnhardt's call could have come
time after 4:00 p.m. on January 17, but prior to the actual report to work time on January
provided employees worked continuously through 4:00 p.m. on January 18. Under this
employees were "called" to work early on January 18, rather than being "recalled" to work
close of their shift on January 17.
This view strains the language of the two sections without giving clear meaning to
5. The assertion that the "in addition to" reference in Section 1 clearly mandates this
that any hours worked after 4:00 p.m. on January 17 but before 8:00 a.m. on January 18 are
addition to" time worked on either January 17 or January 18. The City asserts that it can
which work day the overtime hours are "in addition to." However sound the policy basis for
assertion, there is no evident contractual support for it. If, for example, the contract stated
midnight closes a work day, then a call made prior to midnight would "recall" employees to
shift, while a call made after midnight would "call" employees to the next shift. The
however, silent on the point. As noted above, the City contends "in addition to" reference
read to mean "immediately proximate to," but this falls short of establishing that this is the
the most persuasive reading of the terms.
The strength of the City's position is Barnhardt's testimony that he consistently
Section 1 minimum to pre-shift work. Horlacher acknowledged that he was aware Barnhardt
done so. This states the interpretive strength of the City's case by indicating that the Union
attempting to incorporate a practice from a separate division without first bargaining the
poses a troublesome issue.
Accepting the City's view of the practice, however, also poses difficulties. The
record is less
than detailed on how well known the asserted practice is. Horlacher's testimony falls short
establishing that the Union agreed that Barnhardt's past payment was appropriate. The
prior grievances may reflect that the Union was unaware of the circumstances at a time it
file a grievance. It may indicate the differential between the payment of the actual overtime
worked and a Section 5 call-in minimum was not sufficiently large to catch the attention of
affected employee. Beyond this, Barnhardt testified that he has never authorized a Section 5
This does not in itself address the grievance, but highlights the fundamental interpretive
concerning the relationship of Sections 1 and 5. The City's view of the language fails to
meaning Section 5 has.
On balance, the Union's reading of the language of Section 5 is more persuasive than
City's. The language of that section refers to a phone call summoning an employee to
work. The reference to "recalled to work" has no apparent reference to a specific
shift. Rather, it
is refers to a phone call received by an employee "after the completion of their regular work
This is clarified by the closing reference to "each call." Thus, Barnhardt's call for work on
18 came after employees had left work at 4:00 p.m. on January 17. His call, whenever
"recalled employees to work." Under the Union's view, Section 5 call-in payment is
because the employee has completed a regular work day and is notified that he must report to
prior to the next regular work day, whether or not the hours are contiguous to a shift. This
underscores that the "each call" reference puts a two-hour minimum on each summons to
limit the disruption between regular work days.
The City's view does not give effect to the terms of Section 5. Under the City's
Barnhardt's call, late in the evening of January 17 or early in the morning of January 18,
employees to a work day they had yet to perform. Ignoring the difficulty of labeling this a
it reads the "after the completion of their regular work day" reference out of existence.
Division employees had not completed "their regular work day" on January 18 until 4:00
January 18. Barnhardt's call would have come many hours prior to that. In contrast to this,
Union's view makes the time of the actual phone call-in relevant and thus grants meaning to
all of the
terms of the section.
Under the Union's view, the Section 1 call-in minimum applies to all overtime,
short periods of work adjacent to the close of a regular shift. Section 5 is a more narrow
triggered by call-ins that are made after the completion of a regular work day, but prior to
commencement of the next regular work day. Presumably, such call-ins reflect
circumstances that arise between the close of one work day but prior to the commencement
next. January weather, like that posed in this grievance, fits within this view, and that view
meaning to Section 1 and to Section 5. The City's view reads Section 1 so broadly that it
meaning to Section 5. As noted above, this conclusion is troublesome in light of past
evidence. However, that evidence has flaws. More significantly, that evidence cannot
the terms of Section 5 out of existence.
The City did violate the contract when it did not pay ten workers two-hour recall
pay for January 18, 2001.
As the remedy appropriate to the City's violation of Article 14, Section 5, the City
the ten workers whole by compensating them for the difference between the wages and
already paid them for January 18 and the wages and benefits they would have earned but for
City's failure to pay the two-hour minimum.
Dated at Madison, Wisconsin, this 27th day of November, 2001.
Richard B. McLaughlin, Arbitrator