BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PRICE COUNTY PROFESSIONAL DEPUTIES
ASSOCIATION, LOCAL 116
For Price County, David Deda, Price County Corporation
Counsel, Slaby, Deda, Marshall, Reinhard & Fuhr LLP, 215 North Lake Avenue, P.O. Box
7, Phillips, Wisconsin 54555-0007.
For Price County Professional Deputies Association, Thomas A.
Bauer, Labor Consultant, Labor Association of Wisconsin, Inc., 206 South
Arlington Street, Appleton, Wisconsin 54915.
Price County (hereinafter referred to as "County" or "Employer") and Price County
Professional Deputies Association, hereinafter referred to as "Association" are parties to a
bargaining agreement covering the period from January 1, 1999 through December 31,
agreement provides for binding arbitration of grievances as therein defined that may arise
the parties. On June 2, 2000, the Union filed a request with the Wisconsin Employment
Commission for a WERC commissioner or staff member to serve as the sole arbitrator of the
grievance that had arisen between the parties. Commissioner A. Henry Hempe was
appointed by said
Commission to hear and decide said dispute. A hearing was conducted on September 22,
Phillips, Wisconsin. No transcript of the proceeding was prepared. The County filed an
received on October 8, 2001 and a reply brief received on October 22, 2001. The
an initial brief received on October 9, 2001, and filed no reply brief.
STATEMENT OF THE ISSUE
The Union proposes the following statement of the issue:
Did the Employer violate the terms and conditions of the
collective bargaining agreement
when it refused to pay the proper overtime and holiday rates for work performed on
1999 and January 1, 2000?
If so, what is the appropriate remedy?
The County suggests the following statement of the issue:
Did the employer violate the terms and conditions of the
Collective Bargaining Agreement
when it refused to pyramid holiday pay and overtime pay for work performed on December
and January 1, 2000?
If so, what is the appropriate remedy?
I adopt the following statement of the issue:
Did the County violate the terms and conditions of the
Collective Bargaining Agreement by
failing to pay to pay both holiday and overtime pay (i.e., triple time) to deputies whose
on December 31, 1999 and January 1, 2000 also constituted work in excess of their
daily or weekly schedules?
If so, what is the appropriate remedy?
FACTS OF THE CASE
The issue of this case is one of contract interpretation. The
facts are undisputed. The parties
agree that based on his concern over possible Y-2K problems, the Price County Sheriff
entire roster of Price County deputies to work both December 31, 1999 and January 1, 2000.
resulted in several deputies being required to work on what would have been their scheduled
This also resulted in some deputies working in excess of their normal workday of eight
Both December 31 and January 1 (New Year's Day) are listed holidays in the
bargaining agreement of the parties.
Each of the deputies who worked on New Year's Eve (December 31, 1999) and New
Day (January 1, 2000) was compensated at the rate of time and one-half of his/her normal
of pay for each hour worked in addition to his/her normal hourly rate of pay.
Several members of the Association testified, including Association President Joseph
who is employed as a jailer, Association Vice-President Brian Roush who is employed as a
and Brian Schmidt (not an officer of the Association) who is also employed as a deputy.
Deputy Lillie has been a jailer with the Price County Sheriff's Department for four
Lillie testified the work cycle for deputies is 6 days on, 2 days off, 8-hours a day. Deputies
14 Kelly Days per year, and work a total of 2078-hours per year. Lillie said the
2nd shift starts at 3:00
p.m. and ends at 11:00 p.m. He noted there are 26 pay periods per year, with 9 paid
was scheduled to work on December 31, 1999 from 7:00 a.m. to 7:00 p.m. His
hours had been
changed at the Sheriff's direction and resulted in Lillie being required to work 4 hours in
his normal 8-hour shift. He acknowledged receiving premium pay for each of the actual
worked on the holiday, but contended he is also owed an additional 4 hours at time and
Deputy Schmidt has been employed by the Price County Sheriff's Department for 12
December 31, 1999 was normally his day off. He was scheduled to work and did work on
from 3:00 p.m. to 3:00 a.m. the following morning. He received compensation
at the rate of time and
one-half. He contends he is additionally entitled to overtime pay at the same rate of pay.
Deputy Roush was scheduled to work from 7:00 a.m. to 3:00 p.m., on
December 31, 1999
then 10:00 p.m. on December 31, 1999 to 3:00 a.m. on January 1, 2000. He
actually worked from
7:00 a.m. to 3:15 p.m., then the additional 5 hours from 10:00 p.m. that evening to
3:00 a.m. the
following morning. Deputy Roush acknowledges receiving 8 hours of compensation at
holiday pay at the rate of time and one-half, and 15 minutes of overtime. He believes he is
to an additional 5 hours (overtime) at the rate of time and one-half.
The County submitted an affidavit executed by Timothy Gould, Chief Deputy for the
County Sheriff's Department for 14 ½ years The affidavit was received into evidence
pursuant to a
stipulation between the parties, and recites in relevant part as follows:
I, Timothy Gould, being first duly sworn on oath depose and
state that I am the Chief Deputy
for Price County and that I have held that position since January 16, 1987. From January
January 1995 I was involved in the
actual preparation of the payroll sheets as
Chief Deputy. Since January of 1995 until the present
date, as Chief Deputy, I am involved in reviewing the payroll sheets that are prepared by the
Administrative Assistant-Executive. Either the Sheriff or I review the actual payroll sheets.
I do have
supervisory responsibility. The actual payroll checks are prepared by the Payroll Manager
I am not aware of a single incident where
an employee who was an Association member of
the Price County Deputies Local 116 has worked on a holiday and been paid other than time
half for the hours actually worked, whether the hours worked were eight hours, less than
or more than eight hours on the holiday.
In addition pursuant to the Master
Contract, all members of the Price County Deputies
Association Local 116, whether they work or not on a holiday are paid eight hours for that
at straight time.
Dated this 16th day of
Chief Deputy Gould reaffirmed his affidavit in sworn
at hearing. He asserted that
in addition to straight time, any deputy required to work on a holiday is paid time and
each hour actually worked.
The County also submitted an affidavit executed by Karren L. Balzar, Payroll
Manager/Personnel Assistant. Pursuant to a stipulation between the parties the affidavit was
into evidence and recites in relevant part as follows:
Karren L. Balzar being first duly sworn on oath deposes and
state that she is currently the
Payroll Manager/Personnel Assistant in Human Resources Department of Price County which
been her position since June 15, 1999.
Throughout the time Karren L. Balzar has
been in that position, on every occasion that an
association member of the Price County Deputies Association Local 116 has worked on a
that employee has been paid time and one-half for the hours actually worked whether it be an
hour day, less than eight hours or more than eight hours. The holidays are listed in Article
All members of the Price County Deputies
Association Local 116 are paid an additional eight
hours at straight time on each holiday whether that person works or not pursuant to the
of the Master Contract.
Karren L. Balzar has checked records
from prior to her employment in the Human Resources
Department and believes the same procedure was followed when paying for hours worked on
holiday by a member of the Price County Deputies Association Local 116 in the past, and
Balzar is not aware of a single situation where an employee was paid other than time and
hours actually worked on a holiday whether the hours worked were less than eight hours,
or more than eight hours.
Dated this 16th day of
/s/ Karren L Balzar
The County additionally submitted copies of pay records into
evidence that appeared to
substantiate the County's pay practice relating to holiday/overtime pay described by Chief
Timothy Gould (Exhibit C). Although one deputy professed to know nothing about the past
the other two acknowledged its existence. They contended, however, that the December 31,
1999-January 1, 2000 situation differed from previous instances: 1) in the most recent
employees did not have the option of declining to work and 2) in the past the entire
never been ordered in to work a holiday.
The relevant contract provisions are contained in the labor agreement between the
covering the period from January 1, 1999 through December 31, 2001.
Article 7 Grievance Procedure
A. Definition of Grievance * * *
B. Steps of Grievance Procedure * * *
Any grievance which cannot be settled through the above procedures may be
submitted to an arbitrator appointed by the Wisconsin Employment Relations
Commission from one of its staff.
3. The arbitrator selected or appointed
with the parties at a mutually agreeable date
to review the evidence and hear testimony relating to the grievance. Upon completion
of this review and hearing, the arbitrator shall render a written decision to both the
County and the Association, which shall be binding upon both parties.
4. Costs * * *
5. Transcript * * *
6. Decision of the Arbitrator.
The decision of the arbitrator shall be limited to the subject matter
of the grievance and shall be restricted solely to interpretation of the contract in the
area where the alleged breach occurred. The arbitrator shall not modify, add to, or
delete from the express terms of the Agreement.
. . .
Article 10 Hours of Work and Kelly Days
A. Work Year * *
B. Work Day: The normal work day shall be eight (8) hours.
. . .
Article 13 - Overtime
A. Deputies who are required to work in
excess of the scheduled work day or work week shall
receive pay at time and one-half (1 ½) or compensatory time off at time and one-half (1
½) at the
Deputy's discretion. Overtime must be approved by the Sheriff or Chief Deputy in advance
in an emergency. Time and one-half (1 ½) payment, if the Deputy selects pay instead
compensatory time, shall be rendered to the Deputy no later than the last pay period of the
Article 14 Holidays
A. Each employee shall be entitled to
nine (9) paid holidays as follows:
New Year's Day Thanksgiving
Easter Sunday Christmas
Memorial Day December 24
Independence Day December 31
. . .
C. Holiday pay shall consist
of eight (8) hours pay at the employee's regularly hourly rate of
pay if he does not work on the holiday. Employees scheduled to work on a holiday shall
receive compensatory time or salary at the rate of one and one-half (1 ½) hours for
POSITIONS OF THE PARTIES:
The Association asserts that the clear and unequivocal language of two sections of the
collective bargaining agreement can be interpreted to apply to the same event. Applied to the
facts, the Association argues that its bargaining unit members are entitled to both holiday pay
overtime pay for working overtime on a holiday.
The Association finds nothing ambiguous about Article 13. Article 13 recites that
required to work in excess of their normal work day or work week will receive pay at the
rate of time
and a half or compensatory time off at the rate of time and a half.
The Association insists that Article 14 is equally plain on its face. If the employee
work on a contractually named holiday, he is entitled to be paid his straight hourly rate; if he
scheduled to work on a holiday, he is to receive compensatory time off or salary at one and
(1 ½) hours for each hour worked.
The Association cites both Wisconsin case law and hornbook law to the effect that the
arbitrator must follow the contract language where it is clear and unequivocal even
results may be harsh and contrary to the expectations of one of the parties.
The Association echoes the Wisconsin Supreme Court in asserting that the ultimate
all contract interpretation is to ascertain the intent of the parties. If this can be determined
reasonable certainty from the face of the contract itself, there is no need to resort to extrinsic
evidence, according to the Association.
The Association is adamant that Article 14 (Holidays) is clear and unequivocal and is
susceptible to more than one meaning.
The Association argues " . . . (w)hen Article 14, Holidays, Section C, is dissected,
meaning is evident as to how employees are to be compensated when NOT REQUIRED to
a holiday, when they ARE REQUIRED to work on a holiday. (Caps included.)
The Association finds that if an employee is not scheduled to work on a holiday,
be paid eight-hours pay at the employee's regular rate of pay. This, says the Association, is
But, says the Association, if an employee is scheduled to work a holiday, 1) the
be a recognized one, 2) the employee must be scheduled to work the holiday, and 3) the
shall have the option of taking pay or compensatory time off at the rate of time and one-half
hour worked on the holiday. The Association contends that all three elements of the latter
have been adequately addressed by the testimony of both Association and County witnesses.
The Association also argues that Article 14 evinces a clear intent that whenever an
works on a holiday compensation shall be given.
The Association notes that this incident is unprecedented and has no past practice on
to rely. The Association underscores the testimony of Deputy Lillie who said there has
a time when the entire department was required to work on a holiday.
The Association believes that Article 13, Section A and Article 14, Section C have to
construed to be applicable for the same instance and cannot be differentiated under the
The Association contends that if Article 13 Overtime, Section A is applicable in the
pay period that a holiday falls, it is also safe to assume and exert the argument that it could
fall on the
same work day or off day. (Emphasis included) Therefore, if the
same work day or off day
constitutes a holiday, then Article 13 Overtime, Section A and Article 14
Holidays, Section C
shall both apply, and must be read in conjunction with each other.
Finally, the Association asserts that Article 13, Section A and Article 14, Section C
that the Employer compensate employees as stated in each section in every and all instances.
Association finds the word "shall" in each article and finds that word to express a firm
In summary, the Association reiterates its arguments:
1) The contract language is clear and unequivocal.
2) Article 14 Holidays, Section C mandates that extra
compensation be given when an
employee is required to work on a recognized holiday.
3) No past practice exists.
4) Article 13, Section A and Article 14 Section C have to be construed to
be applicable for the
same instance and cannot be differentiated under the circumstances.
5) Article 13, Section A and Article 14, Section C require that the
employees as stated in the specific language of each section in every and all instances.
6) There is no language in Article 14, Section C which prohibits
compensation if overtime
is also paid.
Therefore, the Association urges the arbitrator to order the Employer to compensate
Association members who worked on December 31, 1999 and January 1, 2000 in a manner
with the Association interpretation of the contract as expressed above.
The County also finds the contract language clear, but reaches a different conclusion
The County agrees with the Association that Article 14 shows a clear intent whenever
employee works on a holiday, compensation shall be given. The County notes that all
paid for eight-hours of holiday, whether or not they work it. The County also agrees that the
employees that work are paid an additional hour and one-half for each hour worked. But,
County, there is no provision in the labor agreement for pyramiding premium pay for
premium pay for holidays.
The County points to the affidavits from Chief Deputy Gould and Personnel Manager
Balzar as establishing that for many years employees that work on a holiday have been paid
and one-half for the hours actually worked, whether the hours were overtime hours or not,
additional pay if the hours were overtime hours.
The County further points to the County Exhibit 1, which consists of the contract
from the 1981 labor agreement. The language is identical to the current contract language
which the Association is attempting to proceed. Yet, over the years, says the County, there
been many occasions when employees have worked overtime on a holiday. The employees
always been paid at the same rate of time and one-half for hours actually worked.
The Association did not submit a response.
The County takes issue with the Association's argument that
there was no past practice. The
County cites hornbook arbitration law to demonstrate that the practices of the parties
substance to disputed terms in the contract.
In the instant matter, the County emphasized that never has there been "pyramiding"
County with respect to overtime pay and holiday pay. Employees have always been paid at
of time and one-half for actual hours worked on a holiday, plus eight hours of straight time.
affidavits from Gould and Balzar clearly establish that on many occasions an employee has
overtime hours on a holiday without pyramiding time and one-half for overtime and time and
for holiday hours, says the County.
The County is not persuaded by the Association's argument that the fact the whole
department was called in to work the holidays somehow makes the case unprecedented.
to the County whether everyone works or some work isn't material as to the question of
not a past practice has been established.
The Association contends that a deputy whose hours of actual holiday work exceeds
her normal workday or work week is entitled to triple time. The Association reasons that
contract provides for holiday pay at time and one-half for actual hours worked, and the
further provides for time and one-half for hours worked that exceed the deputy's normal
or workweek, when considered separately the two components add up to triple time: 1
½ plus 1 ½
The County does not agree that the issue is susceptible to the simple arithmetic
proposed by the Association. Pointing out that all deputies receive holiday pay consisting of
of straight time, the County further notes that it pays deputies additional wages (or
time off) equal to time and one-half for all holiday hours actually worked, just as Article 14
but does not add a separate premium for work that exceeds the deputy's workday or
County insists that this arrangement has existed since at least 1981 under contract language
holiday and overtime pay that is identical to that in the current contract.
The Association does not deny the practice has existed with respect to individual
But it denies that the practice has ever been implemented when the entire
department has been
required to work on a holiday, because until the 1999-2000 New Year's holidays the
department has never been called in to work on a holiday.
Each party insists that its interpretation is based on clear and unambiguous contract
Each interpretation is plausible. In a summary (that may do scant justice to each) the
reads each article (13 and 14) as having separate and independent existence from the other;
County believes the two articles must be read together to give meaning to each. Under these
circumstances, I have no difficulty in finding ambiguity. 1/
1/ In arbitration it is fundamental that " . . .
an agreement is ambiguous is plausible contentions may be
made for conflicting interpretations." Elkouri, 5th Ed., at
What is quite clear to me, however, is that since at least 1981 to year 2000 there was
agreement between the parties as to how Article 13, Section A and Article 14, Section C
operate in conjunction with each other. Based on that mutual understanding and acceptance,
article was viewed in a vacuum separate from the other. Instead, the articles were read
a practice grew that appears to give some credence to each. In effect, the parties themselves
supplied their own interpretation of the articles in question an interpretation that has
approximately 20 years. As the County suggests, past-practice duration of this length is
and serves to clothe the practice with indisputable validity. 2/
2/ Another important factor to be considered in determining the
weight to be given to past practice is how well
it is established. In this regard, Arbitrator Robert E. Mathews stated that to be given
significant weight in
contract interpretation, 'the practice must be of a sufficient generality and duration to imply
acceptance of it
as an authentic construction of the contract.'" Elkouri, 5th Ed., at
The practice is not vitiated because the instant dispute was
triggered by what the
Association describes as the unprecedented directive that required the entire Sheriff's
to be on holiday duty over the 1999-2000 New Year's holidays. I am not persuaded that this
a material difference from previous instances of holiday work by individual deputies that may
exceed their normal workday or workweek. That unbroken string of instances has been well
documented by the County, and constitutes a past practice. Based on that past practice, the
County had a right to rely on continued acceptance of what had been up to New Year's Eve,
a mutually agreed contractual interpretation that the practice described. If one of the parties
now unhappy with that interpretation being applied to a factual situation it may not have
foreseen, it must seek its remedy in collective bargaining.
Certainly, alternate interpretations can be reached. The
interpretation skillfully urged by
the Association is not illogical on its face. But, apart from serving the self-interest of one
or the other, there is no reason in this matter to seek an interpretation at variance from the
practice of the parties. As the Association argues, "(t)he ultimate aim of all contract
interpretation is to ascertain the intent of the parties." 3/ But a practice, once developed, is
best evidence of what the language meant to those who wrote it. 4/
3/ Patti v. Wester Mach. Co., 72 Wis.2d 348, 241 NW2d 158
4/ Mittenthal, Richard, "Past Practice and
Administration of Bargaining Agreements," from Arbitration
and Public Policy at 37, BNA (1961)
By relying on
practice, the burden of the [arbitrator's] decision may be lifted from the
arbitrator back to the parties. For to the extent to which the arbitrator adopts the
given by the parties themselves as shown by their acts, he minimizes his own role in the
construction process. The real significance of practice as an interpretative guide lies in the
that the arbitrator is responsive to the values and standards of the parties. A decision based
past practice emphasizes not the personal viewpoint of the arbitrator but rather the parties'
history, what they have found to be proper and agreeable over the years.
5/ Supra at 38.
Based on the entire record, the grievance
The County did not violate the terms and conditions of the
Agreement by failing to pay both holiday and overtime pay (i.e., triple time) to deputies
holiday work on December 31, 1999 and January 1, 2000 also constituted work in excess of
respective normal daily or weekly schedules.
The grievance is dismissed, with each party to pay its own
Dated at Madison, Wisconsin, this 23rd day of January,