BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WOOD COUNTY PARK AND FORESTRY
LOCAL 344, AFSCME, AFL-CIO
(Union Activity Grievance)
Mr. Gerald Ugland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P. O. Box 44, Stevens Point, Wisconsin 54481, on behalf of Local
Mr. Dean R. Dietrich, Ruder, Ware & Michler, S.C., Attorneys
at Law, 500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, on behalf of the
According to the terms of the 1998-2000 collective bargaining agreement between
County and Wood County Park and Forestry Employees, Local 344, AFSCME, AFL-CIO,
requested that the Wisconsin Employment Relations Commission designate a member of its
hear and resolve a dispute between them regarding whether the County violated the collective
bargaining agreement by not paying Alan Zieher to attend two unit clarification hearings in
2000. The hearing herein was scheduled and held at Wisconsin Rapids, Wisconsin, on
2001. No stenographic transcript of the proceedings was made. The parties agreed to file
through the Arbitrator postmarked by December 10, 2001, and they reserved the right to file
briefs postmarked January 7, 2002. All briefs were received by the Arbitrator by
January 8, 2002,
whereupon the record was closed in this case.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues should be decided in this case:
Did the Employer violate the collective bargaining agreement
when it did not compensate
Alan Zieher under Article 10.10, for attending two unit clarification hearings in the year
2000? If so,
what is the appropriate remedy?
ARTICLE 10 GRIEVANCE
. . .
10.09 Grievance Conference: Employees
or Stewards must obtain the consent of their immediate
supervisors to leave their assigned work area to confer during their shift regarding a
grievance. Such consent will not be unreasonably denied, and such conference and/or
investigations will need to be held at mutually convenient times. It is agreed, however, that
meetings between and among employees regarding grievances will be held prior to, or
following an employee's shift or during paid breaks whenever possible.
Union representatives who have been excused from work by their supervisor
will be compensated for time spent during their regular working hours in attending grievance
adjustment meetings with Management or other authorized joint Union/Management
ARTICLE 18 JURY
18.01 An employee subpoenaed or
called upon to serve jury duty shall receive his/her regular pay
for time spent in jury service, provided that the employee will deposit any compensation
he/she receives as a result of jury service with the Employer, less mileage payments. In
return, the employee will receive his/her regular pay, except in cases where jury pay exceeds
the regular day's pay.
18.02 Any employee who is
released from jury service with at least one-half (1/2) of the work day
remaining shall report to work at his/her earliest opportunity following release.
Alan Zieher (Zieher) has been employed by the County for the past five years as an
Maintenance Technician. Zieher has also been the Union Steward and President of
Local 344, the
AFSCME Local, which represents the Park and Forestry employees, for the past four years.
Prior to October 30, 2000, 1/ Zieher, as Union President and Chief Steward,
wages to attend employee disciplinary meetings, employee evaluation meetings and for
sessions which occurred during regular work hours. 2/ In regard to the disciplinary and
meetings, the County always requested Zieher's presence as the Union representative at these
meetings. For negotiation sessions, Zieher was never asked whether he was available to
meetings in advance thereof. Rather, Zieher normally received advance notice from the
these meetings and the date on which they would occur. Zieher never submitted a written
to his supervisor, Ron Arendt (Arendt) to attend any of these meetings. After receiving
notice of a
meeting, Zieher generally talked to Arendt about attending and Arendt always granted
Zieher to attend. For these permitted meetings with management, Zieher merely recorded
hours on his time card by placing thereon the number of regular work hours for that day.
then paid for his normal working hours.
1/ All dates hereafter shall be in 2000 unless
2/ Zieher did not receive
pay beyond his regular work hours on these days even though the meetings may have
gone beyond his quitting time.
A WERC unit clarification (U.C.) hearing was scheduled and
held regarding the proper
placement of two positions which concerned the Park and Forestry Department as well as the
Courthouse Department of the County (separate AFSCME bargaining units). Zieher was not
contacted in advance of the scheduling of these hearing dates for his agreement thereto.
after the October 30th hearing date was scheduled, Zieher had several
conversations with his
supervisor Ron Arendt regarding whether Arendt would allow Zieher to attend the October
hearing in pay status pursuant to Article 10.10. At first, Arendt indicated that if the U.C.
constituted legitimate Union business, Zieher could attend in pay status, but that Arendt
to check on this with his supervisors. Zieher thereafter had at least one more conversation
Arendt but Arendt did not give Zieher a firm answer regarding Zieher's attendance in pay
the October 30th U.C. hearing.
On October 25th, Zieher and Arendt spoke again on the
subject. At this time, Arendt stated
that he did not believe it was necessary for Zieher to attend the U.C. hearing but that if
to attend the hearing, Arendt would approve Zieher's use of compensation time
or vacation for that purpose. On October 27th, Zieher
submitted the following memo with a "request
for approval of absence" form essentially drafted in the alternative, requesting either
time "under protest" or requesting the use of paid time off under Article 10 to attend
the October 30th
. . . With the attached request for approval of absence form I am
requesting to attend the unit
clarification hearing scheduled for October 30th at 10 AM in the courthouse
reguarding [sic] the
position occupied by Don Pelot. I am requesting that I am able to attend with pay under
of the collective bargaining agreement. If this is refused I am requesting compensatory time
protest to attend the hearing.
On the morning of October 30th,
had another conversation with Arendt. Arendt told
Zieher he would be granted compensation time to attend the U.C. hearing that day, but that
were subpoenaed it might be different, implying that Zieher might then be paid to attend
separate provision of the labor contract. 3/ Zieher stated herein that he testified at the U.C.
3/ Article 18
concerns employees receiving pay if they have been "subpoenaed or called upon to serve
duty." This provision of the labor agreement is not before me as the grievance specifically
references only the
language contained in Article 10.10 and the Union did not argue a violation of Article
18 herein. Also, Zieher
never requested pay for October 30th pursuant to Article
Zieher spent 6.5 hours in attendance at the U.C. hearing on
October 30th. No settlement
discussions were held at that hearing. The U.C. hearing was not concluded and the
it was scheduled for November 8th. Zieher then submitted a memo
and a "request for approval of
absence" form that was essentially identical to that which he submitted on
October 27th in order to
attend the October 30th hearing. Zieher was charged compensation
time for both October 30th and
November 8th in the amount of 13 hours. 4/
4/ At some point after October
30th, Arendt offered to pay Zieher for his attendance at the October
if Zieher took comp time for the hearing on November 8th. Zieher
declined, stating he was entitled to pay for both
The Union and the County have never before had a WERC U.C. proceeding
County AFSCME unit. Zieher admitted that Arendt never gave him permission to attend the
hearing in pay status. Zieher stated that as of October 27th, he had not
subpoenaed for the October 30th hearing, but that he did receive a
subpoena for that day prior to
October 30th. 5/ However, Zieher never showed his subpoena to Arendt.
During their various
conversations, Arendt stated that he told Zieher he felt that the U.C. hearing was different
meetings in which grievances are processed and from bargaining and that it was not clear
was needed to represent the Union at the U.C. hearings.
5/ The Union did not
place a copy of Zieher's subpoena into this record.
Union Representative David Urban, who served on the Union bargaining team
parties' initial contract, stated herein that AFSCME Representative Jeffrey Wickland advised
union committee during those negotiations that it was in the best interest of unit employees to
Article 10.10 into the contract so that employees representing the Union would be paid for
grievance processing and negotiations. Urban stated that his only experience with
Article 10.10 was
in attending bargaining sessions on work days and that he was always paid for his regular
on those days and he was always granted permission to attend as a Union committeeman.
The Union also offered the testimony of Ann Arndt, President of AFSCME
Local 2486 which
represents Courthouse Department employees in a bargaining unit separate from the instant
Union stated it wished to offer Arndt's testimony regarding past practice and the proper
of Local 2486's contract language which the Union asserted is similar but not identical to
contained in Article 10.10. The Arbitrator refused to take this evidence on the
grounds that the
Courthouse unit contract is separate and distinct from the Park and Forestry contract, that the
contract did not exist at the time the County agreed to the Courthouse language and because
was not present at the Park and Forestry unit negotiations when Article 10.10 was agreed
On November 17, Zieher filed a grievance in which he stated the facts as follows:
Employee was not compensated for time spent at an authorized
The grievance also listed "Article 10.10 and all other relevant parts of the collective
agreement" as being violated and sought a make-whole remedy, specifically that Zieher's
compensation time bank be credited with 13 hours and that he be paid "wages" for the time
"attending the meeting."
POSITIONS OF THE PARTIES
The Union argued that because both the Union and the County fully participated in
U.C. hearings which were designed to resolve union/management issues or disputes between
and because both parties were interested in the outcome of the case and because Zieher
hearings as the Park and Forestry unit employees' representative and was subpoenaed as a
therein, the County thereby "authorized" Zieher to attend the hearings as "joint
meetings" under Article 10.10. The Union noted that Zieher was given permission to attend
hearings if he used vacation or comp time. The Union asserted that Article 10.10 states that
representatives can be excused from work by their supervisors and compensated for time
regular working hours to attend grievance adjustment meetings and other "authorized joint
In this case, the Union argued that Article 10.10 is not restricted to grievance
meetings. The Union noted that it would not have caused the County undue hardship to
paid time off under Article 10.10 for the 13 work hours during which he attended the U.C.
with advance approval. The Union also asserted that Zieher had been subpoenaed to attend
hearings and that the Zieher gave his subpoena to his direct supervisor, Mr. Francis, who,
asserted, then sent it on to the supervisor above, Ron Arendt. 6/ Therefore, the Union
the grievance should be sustained, that Zieher should be paid for the time he attended the
hearings on October 30 and November 8, 2000, by having his comp time bank restored and
paid for 13 hours at straight time.
6/ The Union submitted no evidence on this
point at the hearing and raised it for the first time in its initial
The County argued that it had not violated the collective bargaining agreement by
to compensate Zieher for attending a two-day U.C. hearing. The County noted that in order
prevail in this case, the Union must show that the Grievant was excused from work by his
to attend either a grievance adjustment meeting or "other authorized joint Union/Management
meetings." The County also observed that the contract does not define such an authorized
In the instant case, the County contended that Union witness Urban demonstrated the
intent that the phrase "other authorized joint Union/Management meetings" should mean
negotiations between the parties and nothing more. Here, the County never
excused Zieher from work to attend the U.C. hearings. Rather, it granted Zieher's
request to use
comp time to attend those hearings. Thus, the County urged that the U.C. hearings were not
union/management meetings and they were not "authorized" by the Employer.
In addition, the County noted that the October 30 and November 8 hearings were not
grievance adjustment meetings. Furthermore, the County noted that it never agreed to pay
to attend the U.C. hearings under Article 10.10, but that it only granted Zieher comp time to
these: how Zieher chooses to use his comp time is up to him. Because the Union failed to
any supervisor ever excused Zieher and authorized that he be paid to attend the U.C.
pursuant to Article 10.10, the grievance should be denied on this basis.
Even if the Arbitrator were to find that Zieher had been excused to attend the U.C.
these hearings could not be defined as grievance adjustment meetings or as other authorized
Union/Management meetings pursuant to Article 10.10. The County noted that it would
word "authorized" meaningless if the Arbitrator were to interpret the fact that the Union and
Employer had agreed to hold the U.C. hearings on certain dates, as constituting authorization
Article 10.10. Contracts should be interpreted to provide reasonable, not absurd results, and
words should be given full effect in a contract pursuant to arbitral rules of construction. The
noted that if the Arbitrator were to conclude that the County's action in agreeing to hold the
hearings on certain dates made those meetings "authorized joint Union/Management
Employer would then refuse to agree to any daytime hearing dates with WERC in the future.
The County argued that the parties never intended that the U.C. hearings would
authorized joint Union/Management meetings. The County noted that in this regard, Union
Urban's testimony showed that the parties intended this phrase in Article 10.10 to refer to
being paid to attend negotiation sessions or grievance adjustment sessions. As the County
agreed to excuse Zieher from work and pay him without his using his accrued comp time or
time, and as the U.C. hearings concerned neither grievances nor did they relate to labor
the Arbitrator should find that the U.C. hearings were not "authorized" joint
meetings under Article 10.10 and the grievance should be denied and dismissed in its
The Union argued that the language of Article 10.10 is clear and unambiguous. In
Union's view, it was "preposterous" for the County to contend that it had not "excused"
work on October 30 and November 8, given the County's admission herein that it gave
permission to attend the U.C. hearings, and that the County was aware Zieher had
been subpoenaed to attend these. The record showed that Zieher went through
channels to get these
days off and that both the Union and the County participated in and agreed to schedule the
hearings during the work day. The Union noted that the County could have scheduled the
hearings after work hours to avoid Article 10.10 liability but it did not do so. Indeed, the
observed that the County failed to put any evidence into the record to show that either the
Hearing officer or the Union had insisted upon daytime hearings.
In the Union's view, if the County were allowed to do as it did here, it would be able
interfere with the Union's statutory right to choose who will represent it. Further, the Union
observed that the County could agree to a daytime hearing and later claim that it had not
the date in order to deny Union representatives paid time off. This would be coercive and
to the intent of Chapter 111. The Union contended, therefore, that if "authorized" were read
that the County must desire a meeting, that County could then justify refusals to meet and
representation would be frustrated even though the Union has a statutory right to file and
The Union noted that dictionary definitions of "authorized" support its position and
testimony of former Union representative Urban shows that the parties' practice has been to
Union representatives Article 10.10 paid time off to attend meetings that are supported by
rights (such as negotiations and grievance arbitration). As U.C. hearings are also supported
statute, they should be covered by Article 10.10 pay.
In sum, the Union asserted that if the County wishes to restrict the clear, broad
Article 10.10, it must bargain changes therein. The Union therefore sought an award
grievance; ordering the County to compensate Zieher for attending the U.C. hearings on
and November 8th; ordering the County to restore 13 hours to Zieher's
comp time bank; and
otherwise making Zieher whole.
The County argued that the Union's initial brief was inaccurate in some respects.
example, Arendt never authorized Zieher to attend the U.C. hearings. Rather, Arendt told
he would have to confer with his supervisors regarding Zieher's request to attend the U.C.
After Arendt had done this, he told Zieher he would have to take comp time to attend the
hearings. In addition, in the County's view, it was misleading for the Union to contend that
represented the Park and Forestry bargaining unit at the U.C. hearings when Mr. Ugland
was the true
Finally, whether Zieher was subpoenaed to appear at the U.C. hearings was
irrelevant, in the
County's view. As Zieher was not subpoenaed for jury duty as required by the County's
interpretation of Article 18, the Union's argument on this point should fail. The
sought denial and dismissal of the grievance in its entirety.
Article 10.10 allows "Union representatives" to be "compensated for time spent
regular working hours" to attend "grievance adjustment meetings with Management or other
authorized joint Union/Management meetings" if the representative has "been excused from
their supervisor." It is undisputed that Alan Zieher was a "union representative," being both
President and Union Steward at all times relevant to this case. Thus, the initial inquiry here
whether Zieher's supervisor, Ron Arendt, ever "excused" Zieher from work to attend the
30 and November 8, 2000, U.C. hearings in pay status pursuant to Article 10.10.
The record in this case clearly showed that Arendt gave Zieher permission to attend
hearings if he used accrued comp time. However, the fact that Arendt granted Zieher's
take comp time to attend the U.C. hearings, cannot be equated with an excuse from work
Article 10.10 unless one of two other conditions listed in Article 10.10 is also met. The
either be a grievance adjustment meeting with management or "other authorized joint
It is undisputed that the U.C. hearings on October 30th and
November 8th did not involve
grievance adjustment. Therefore, the question arises what constitutes an "authorized" joint
Union/Management meeting. Here, the labor agreement is ambiguous in that it does not
term "authorized" nor does it define the phrase "other authorized joint Union/Management
The rules of construction applicable to contract language indicate that the use of the word
in Article 10.10 shows that the parties intended "other authorized Union/Management
refer back to the last specifically listed item (appearing before the word "other"), "grievance
adjustment meetings with management."
The difficulty with applying this rule of construction in this case is that there are
of grievance adjustment meetings, from informal inquiries, to grievance step meetings, to
interrogations of witnesses, to grievance arbitration hearings, so that reference back to the
"grievance adjustment meetings with management" is not particularly helpful. In addition,
failed to put specific evidence into this record to show what types of grievance adjustment
were covered by Article 10.10 pay in the past. In short, based upon this record and due to
contractual ambiguity, both parties could argue for favorable treatment in this case. Thus, as
word "other" refers back to an ambiguous term "grievance adjustment meeting with
evidence submitted herein regarding past practice and bargaining history becomes relevant to
determine the parties' intent.
In labor arbitration, evidence of past practice and bargaining history is relevant to
ambiguities. In the past, Article 10.10 meetings were always scheduled and noticed by the
and the County always agreed in advance to pay Union representatives pursuant to
These meetings were never imposed by a third party. In addition, Union
representatives were never able, in the past, to call their own meetings and receive
Article 10.10 pay
therefor. In this case, the evidence showed that Zieher and other former Union
been compensated pursuant to Article 10.10 to attend negotiation sessions with management
as employee evaluations. In the past, Zieher never submitted a written request to attend any
meetings as he did regarding the U.C. hearings. It is also clear on this record that there has
before been a U.C. hearing involving the Union and the County prior to the hearings that
on October 30th and November 8th.
In regard to bargaining history, former Union representative Urban clearly stated that
AFSCME representative Wickland urged the Union bargaining team to place Article 10.10
contract so that Local Union representatives would be paid for contract negotiations and
meetings in the future. According to Urban, Wickland made no mention of any other types
meetings that would be included in Article 10.10 pay. As the evidence of bargaining history
demonstrates that the parties never discussed whether U.C. hearings would be included
phrase "other authorized joint Union/Management meetings," one could argue from this that
parties failure to list U.C. hearings in some fashion in Article 10.10 means they intended to
them from coverage.
The Union has argued that dictionary definitions of "authorized" support its case. A
analysis of such definitions shows that these do not reveal which party (or parties) may
action. Thus, the unabridged Dictionary of the English Language (College
Edition, Random House,
1968), defines "authorized" as follows:
To give authority or official power to; empower. . . .
To give authority for; formal
sanction (an act or usage).
To warrant or justify.
This dictionary also defines "authority" as:
The power to judge, act or command.
A power or right delegated or
given; authorization . . . .
In my view, both parties must be involved in the authorization process but because the
have to pay for a Union representative to attend these meetings, it must be the County that
power to "authorize" such meetings for Article 10.10 pay. 7/
7/ The language of Article 10.10 is clear that
grievance adjustment meetings with management are eligible
for Article 10.10 treatment, without reference to authorization.
The Union has argued that because the County agreed to the
U.C. hearing dates and times,
because it fully participated and was interested in the outcome of the U.C. hearings, which
designed to resolve Union/Management disputes, these facts require a conclusion that the
"authorized" the U.C. hearings as Article 10.10 meetings. I disagree.
It is significant that the parties have never before had a U.C. hearing concerning this
there is no evidence to show what, if any, other hearings have been held involving these
whether Article 10.10 was an issue regarding these hearings. It is also important that the
never notified Zieher that he could attend the U.C. hearings pursuant to Article 10.10,
as the County
had done in the past with other Article 10.10 meetings. In addition, there was no evidence
demonstrate that the County every formally sanctioned Zieher's attendance at the U.C.
Article 10.10 meetings. Rather, Arendt initially stated that if the hearings constituted
business, he would grant Zieher's request to attend the hearings under Article 10.10, but that
would have to check this with his supervisors. Arendt thereafter never told Zieher that he
attend the U.C. hearings in pay status under Article 10.10. Finally, Arendt's later offer to
for one hearing day if he took comp time for the other day of the U.C. hearings, in my
constituted an offer to settle the grievance, which is not relevant.
The Union has argued that the County could control or interfere with the Union's
rights to choose who will represent it at statutory proceedings such as U.C. hearings, if the
prevails in this case. I disagree. The Union representatives at the County are free to attend
or hearings they feel are important to their members even if the County refuses to authorize
"other authorized joint Union/Management meetings." The Union representatives would then
to use vacation or comp time to attend such meetings, but the Employer's actions should not
with, control or frustrate the Union in its pursuit of its statutory rights. 8/
8/ The Union argued that it would not
constitute an undue hardship for the County to compensate Zieher in
this case. There is no basis in the contract for applying such a standard.
Finally, the fact that Zieher was subpoenaed to appear at the U.C. hearings is
the Arbitrator's view. In this regard, I note that the Union failed to submit any evidence
show that Arendt ever knew of Zieher's subpoena. In addition, and more importantly, the
does not mention Zieher being subpoenaed, nor does it allege a violation of Article 18,
subpoenas. Thus, the Union's subpoena argument must fail as this alleged violation of the
was not properly placed before the Arbitrator in this case.
Based upon all of the relevant evidence and argument in this case, I issue the
The Employer did not violate the collective bargaining agreement when it did not
Alan Zieher under Article 10.10 for attending two Unit Clarification hearings in the year
grievance is, therefore, denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 5th day of February, 2002.
Sharon A. Gallagher, Arbitrator