BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LA CROSSE CITY EMPLOYEE'S UNION, SERVICE
INTERNATIONAL UNION, AFL-CIO, LOCAL
CITY OF LA CROSSE
(Grievant Maria Italiano)
In the Matter of the Arbitration of a Dispute Between
LA CROSSE CITY EMPLOYEE'S UNION, SERVICE
INTERNATIONAL UNION, AFL-CIO, LOCAL
CITY OF LA CROSSE
(Grievant Dan Stremcha)
Davis, Birnbaum, Marcou, Seymore, & Colgan, LLP, by Attorney James
G. Birnbaum, 300 Second Street North, Suite 300, La Crosse, WI 54602-1297,
appearing on behalf of the City.
Attorney Peter B. Kisken, Deputy City Attorney, 400 La Crosse
Street, La Crosse, WI 54602-3396, appearing on behalf of the City.
La Crosse City Employee's Union, Service Employees International Union,
180, hereinafter the Union, with concurrence of the City of La Crosse, hereinafter the City,
the Wisconsin Employment Relations Commission to designate a member of its staff to serve
arbitrator to hear and decide two a grievance disputes concerning
Grievants Maria Italiano and Dan
Stremcha and in accordance with the grievance and arbitration procedure contained in the
collective bargaining agreement, hereinafter the Agreement. The undersigned, Stephen G.
was so designated. On October 18, 2001, the grievances were consolidated for hearing and a
was held in La Crosse, Wisconsin. The hearing was not transcribed. On December 13,
upon receipt of the last of the parties' written reply briefs, the record was closed.
On the basis of the record submitted, the Arbitrator issues the following Award.
The parties did not agree on a statement of the issues. The Union would state the
1. Did the City violate Article 12 of the Agreement, the
Non-scheduled and Emergency
Overtime Policy for Water Department Distribution Employees per Article 19, past practice,
Agreement as a whole, when it failed to offer overtime to the Grievants the week of April
2. If so, what is the appropriate
The City would state the issues as follows:
1. Did the City violate the specific terms of the Agreement
by failing to compensate the
Grievants for work which they never performed based on their claim of seniority for
a city-wide emergency flood watch, when there was no contract language providing for
based on seniority?
2. If so, what is the appropriate
The Arbitrator frames the issues for determination as follows:
1. Did the City violate Article 19 when offering flood patrol
work to Water Distribution
Department employees during the week of April 16, 2001, resulting in a loss of overtime to
2. If so, what is the appropriate
A. Employees subject to this Agreement shall be compensated at
the rate of one and one-half
(1 ½) times their regular rate of pay for services rendered and hours worked over and
regularly scheduled work week. . . .
. . .
RESERVATION OF RIGHTS
Except as otherwise specifically provided herein, the management
of the City of La Crosse and
the direction of the work force, including but not limited to the right to hire, to discipline or
for proper cause, to decide initial job qualifications, to lay off for lack of work or funds, or
reduction in the level of services, to abolish positions, to make reasonable rules and
governing conduct and safety, to determine the schedule of work, to subcontract work,
the right to determine the methods, processes and manner of performing work, are vested
New rules or changes in rules shall be
posted in each department five (5) calendar days prior to
their effective date unless an emergency requires a more rapid implementation of such rules.
. . .
PERTINENT COUNTY RULE AND
Non Scheduled and Emergency Overtime
Policy For Water Department Distribution
Whenever the events of the day make it necessary to call
employees off their assigned jobs to
work on a job that was not planned for that day and the work is not completed by the end of
workday the employees who responded to the call and become involved with the new job will
given the opportunity to stay on the job until the work is complete. If additional employees
than those who responded to the call are needed they will be asked by seniority.
In the event that it becomes necessary to
work late on a job that was assigned to a crew at
starting time or any other time during the day and it was not intended for the work to involve
overtime the crew working on the job will be given the opportunity to stay on the job.
Whenever a call comes in shortly before the
end of the workday and only one employee is needed
for the call it will be given to the employee who is on call.
Any other overtime will be by seniority
with the exception of the employee who is on call that
person will always be given the opportunity to work.
AMENDMENT PERTAINING TO CALL OUT PERSON
There may be times when distribution employees are scheduled to
work different hours.
When this happens and a person is needed
for a call the people who are working will be called
If they are unable to take the call because of appointment
scheduling or it is likely to involve
overtime then whoever is on call will be called out.
The City of La Crosse is a municipal employer which operates a Water Department,
hereinafter the Department, and is responsible for maintaining the City's water system.
There are 19
employees in the Department that are represented by the Union. The Department organizes
employees into two divisions: the Distribution side and the Pump House side. Grievants
Stremcha hold the positions of Meter Reader I and II, respectively, and work in the
of the Department. Stremcha has been employed in the Department longer that Italiano and,
therefore, has more senioritythan Italiano.
The City is situated adjacent to the Mississippi River and has a system of sand dikes
North Side to protect those homes against flooding. The dikes were originally erected during
record flood in 1965 by some 225 activated National Guardsmen and consist of 20,000 cubic
of sand. The dikes have remained over the years in the event of future flooding conditions.
During the month of April, 2001, a great deal of rain fell in the City causing the
flooding conditions there since the flood of 1965. On April 13, 2001, the City's Board of
Works distributed a letter by Mayor Medinger and Director of Public Works Caffrey to the
of the City's North Side. The letter stated that the river is expected to crest the following
just over 16 feet, that the North Side homes are expected to be below the projected river's
that people should evacuate their homes if the river reaches over 15 feet. It further stated
stability of the sand dikes cannot be guaranteed with the projected crest and that "[i]f the dike
should fail, water levels could rise very rapidly with strong currents and threaten property
On Monday, April 16, 2001, at about 11:00 a.m., the Board of Public Works met
to request volunteers to patrol the dikes so as to assure that the dikes would not breach. It
determined that the patrolsneeded to be around the clock on three
shifts and that two people were
needed on each shift for eachof the four different sections of dikes for
a total of twenty-four
volunteers. It was also decided that these twenty-four people would come from the City's
Engineering, and Water Departments, with seven from the Water Department, and that
begin at 1:00 p.m. that same day.
Shortly after the above meeting on April 16, 2001, a legal pad was passed around to
employees present at the Distribution side office for those interested in patrol duty. All who
up were told that they would be paid for patrolling at their regular rates, including overtime,
additional hours from patrol duty resulted in more than a 40-hour work week. The Grievants
not present to sign up for patrol duty. Grievant Italiano was on vacation on April 16, 2001,
Grievant Stremcha was working outside of the office area that day.
At about 1:00 p.m. on April 16, 2001, individuals who had signed up for dike duty
were given a tour of the dike system and were instructed to watch for rising water levels and
potential breaches in the system. Breaches were commonly found where damage to the dikes
been done by animals seeking higher land and burrowing into holes or soft spots. The
tour lasted about 45 minutes. The dike duty patrols then commenced and continued around
clock. Employees performed patrol work through April 23, 2001. All those in the
did patrol work received overtime at the overtime rate and pursuant to Article 12.
On May 3 and 10, 2001, Grievants Italiano and Stremcha filed their respective
Each alleged that less senior employees were offered hours for dike patrol work and that they
not given this opportunity resulting in a loss of overtime and in violation of the "Non
Emergency Overtime Policy For Water Department Distribution Employees," hereinafter the
and the Agreement. The Parties thereafter advanced their dispute through the collective
procedure to arbitration.
Additional background information is set forth in the Positions of the Parties and in
POSITIONS OF THE PARTIES
The Union's brief can be arranged into five parts.
Article 19 requires that the City make work rules that are "reasonable." The
and Emergency Overtime Policy for Water Department Distribution Employees, hereinafter
Policy, constitutes the City's written rule regarding overtime in emergency situations. The
expressly and unambiguously states that "[a]ny other overtime will be by seniority . . ."
is broad and applies to all Water Department Distribution employees. Therefore, when the
to assign overtime by seniority to the Grievants during the week of April 16, 2001, the City
disregarded the Policy and in violation of Article 19 of the Agreement.
The City's argument that the Policy does not cover the flooding conditions during the
of April 16, 2001, unduly narrows the Policy's express and broad language that
"any other overtime
will be by seniority." Such a construction of the Policy is
unreasonable. Further, the City's
reasoning, i.e., that it did not follow seniority in the assignment of overtime because the
constituted an emergency, is not a justification, but an admission. The Policy is the
The proper application of the Policy was admitted by City Engineer Randy
According to employee James Christen's testimony, on the morning of April 16, 2001,
stated to City Director of Public Works Patrick Caffrey that "we are going to have to go by
to work on flood duty." This statement was never challenged in the record by Turtenwald
therefore, is uncontested. Although Caffrey testified that he did not recall that meeting or
Turtenwald's alleged statement, which is understandable given the other circumstances
Caffrey's attention that day, Caffrey admitted that he may have said that he didn't want any
with the Union regarding the assignment of overtime for this work. Caffrey would not have
such a statement had there not been a specific mention by Turtenwald of how overtime would
The City has a past practice of following the Policy for all emergencies since the
adoption on February 2, 1995, and as evidenced by the testimony of James Geissner,
It is undisputed that employees less senior than the Grievants in the same department
intentionally offered work on dike duty during the week of April 16, 2001, resulting in the
overtime to the Grievants. Therefore, the City violated its past practice for the assignment
overtime work in emergency situations when it failed to offer overtime to the Grievants
week of April 16, 2001.
No exigent circumstances.
The Union does not dispute that there could be exigent circumstances in which the
not follow its own emergency overtime policy. Examples include a dike breaking and a wall
coming down the Mississippi with no notice. However, the record does not establish such
In this case, the flood stage projections had been already made the week prior to
2001, as evidenced by Union Exhibit 3, and by Mayor Medinger's notice, dated April 13,
Moreover, the City's sign-up sheet for dike duty was not promulgated until after the Board
Works meeting on April 16, 2001, suggesting that the City had sufficient opportunity and
follow its emergency policy. Further, there was no emergency within an emergency which
the City's intentional disregard of the Policy. Moreover, Turtenwald's admission that
have to be followed for the assignment of dike duty work is additional evidence that these
exigent circumstances. Because the City had sufficient notice, therefore, there were no
The City's reason for not offering the Grievants overtime was not because the City
have time to follow seniority, but because they had other work assignments that the City
a higher priority. In this case, the City had ample notice of the impending flood situation
than an ample opportunity to follow the established "emergency" overtime Policy.
circumstances in this case do not amount to exigent circumstances and do not justify a
The Policy is intended to cover emergencies. Emergencies do occur as part of the
expectation of Water Distribution employees. These emergencies can threaten property and,
even life. That is why the parties negotiated a policy for how the City is to assign overtime
Much of the City's evidence regarding April 16, 2001, was to establish a true
However, and as seen in the City's written answers to the grievances, it wasn't the lack of
assign the Grievants the work. Rather, it was a deliberate intentional act on the priority of
assignment. These written answers to the grievances undercut the City's argument regarding
emergency or exigent circumstances.
City's asserted reasoning and pretext.
The City's reason for not offering overtime to the Grievants is unsupported by the
unreasonable, and is a transparent attempt at a post facto justification.
As stated in the City's answers to the grievances, it did not offer overtime to the
because of the Grievants' alleged predetermined work schedules. (It should be noted that the
additional reasons, i.e., that the Grievants did not request overtime and that the Grievants
trained for dike duty, were not asserted until the arbitration hearing.) However, it is
that less senior employees in the department were trained and capable of performing each of
Grievants' scheduled duties. Further, the City did not offer an explanation as to why the
who both work a first shift, were not offered to work a second or third shift on dike duty.
addition, the City also gave no explanation for why Grievant Stremcha was not offered dike
on the weekend of April 20-21, 2001, when Stremcha's schedule takes appointments only on
days and not on weekends.
It is unreasonable for the City to ignore its own emergency overtime policy simply
it prefers one employee to perform a task which other employees are able to perform. To
would gut the overtime seniority policy.
During the arbitration hearing, the City asserted new rationales for its actions. Such
rationales, because of their timing, should be viewed as pretext.
First, the City now asserts that the Grievants were not assigned because persons
dike duty had to be trained. However, and as evidenced by the testimony of Assistant
Public Works Anthony Hutchens, such training amounted simply pointing out the dike
Further, and as evidenced by the testimony of Hutchens and Water Utilities Manager Mark
Johnson, there was no prior experience, no specialized training and no intensive training
perform such duties. The best evidence of the City's speciousness when asserting the need
training is that the City assigned dike duty to Tammy Roellich, a clerical employee on the
House side of the Water Department who works exclusively in a clerical environment.
no prior training in dike duty and no experience in the field of any Water Distribution
City has failed to explain why the Grievants could not have performed as successfully as
dike duty work.
Second, the City now asserts that the Grievants never asked to work overtime.
and as evidenced by the testimony of the Grievants, the Grievants had no opportunity to ask
overtime and they were not aware that overtime was available, particularly on the weekend
16, 2001. Most importantly, any attempt by the Grievants to request such overtime would
futile as evidenced by the City's argument that the Grievants had prescheduled appointments
could not be changed.
Third, the City now asserts that dike duty is not bargaining unit work. However, it
undisputed that bargaining unit employees were paid for dike duty work. More importantly,
Turtenwald's statement that the City had to follow strict seniority and Caffrey's statement
that he did
not want any union trouble in the assignment of overtime for dike duty undercuts the City's
that dike duty is not bargaining unit work. It is important to again note that the City's
regarding bargaining unit work did not appear in the City's answers to these grievances.
such absence is further evidence of pretext.
The appropriate remedy is for the arbitrator to award overtime and/or the equivalent
compensatory time at the Grievants' option. This optional approach is supported by
Section D, of the Agreement which permits employees to either take overtime pay and/or
compensatory time off. The amount of overtime/compensatory time should equate what the
senior employee Tammy Roellich received in overtime, i.e., 24 hours, for that time period
and for her
dike duty work during the week of April 16, 2001.
The City asserts that the grievances should be denied. It's brief can be divided into
Nothing in the Agreement on overtime by seniority.
The Agreement does not include any express language
providing for overtime assignments
by seniority. The absence of this language is clear and unambiguous that there is no such
No past practice.
The Union has not met its burden in demonstrating a clear, consistent, long-standing
mutual practice of assigning overtime in a city-wide emergency in the Department by
Christen's testimony that he overheard Director of Public Works Caffrey state on
2001, that the City is going to have to go by seniority when assigning overtime for dike
not have merit. According to Christen, Assistant Director of Public Works Tony Hutchens
and Utilities Manager Mark E. Johnson were present when Caffrey
made this alleged statement. However, both Hutchens and Johnson testified that they
present at such a meeting. Further, Caffrey denied that he ever made such a statement.
Christen's testimony is not credible and it should be given little or no weight.
Union witness Roellich's testimony had nothing of import other than that water
voluntarily signed up for dike duty and that anyone could do so. Those that did sign up
made a list
on a legal pad.
Union witness Graff testified that he received an orientation before commencing dike
In addition, Graff conceded that such work was voluntary and that work pursuant to the
Policy is for
"on call," which is not voluntary. Further, Graff testified that the Policy is only used for
emergencies which involve the Department's infrastructure and that the Policy has never been
for anything other than a Department system emergency.
With regard to the Grievants, they both conceded that dike duty was voluntary and
neither expressed a desire to be assigned such work.
Thus, the Union's case regarding past practice consists of hearsay evidence, which
rebutted, and mere general statements that the Grievants are entitled to overtime pay for
performed, nor requested, for an emergency situation, based upon seniority which is not in
Agreement or any other document.
In contrast to the Union's case, City witness and Assistant Director of Public Works
testified that the April, 2001, flood was one of the worst in the history of La Crosse.
further testified that the flood's crest was forecast at one point to rise between 17 and 18
highest level since the 1965 flood. Moreover, Hutchens testified that the dikes were first
following the 1965 flood, and that the dikes had not yet been tested with severe flooding
time. He testified that in this case the flooding was an emergency situation and that the
the State of Wisconsin and Federal Government had declared the situation an emergency.
Hutchens also testified that on April 16, 2001, he was present at a Public Works
where the Board of Public Works acted as the City's emergency response team. During this
assignments were offered to Engineering, Inspection and Water Department employees
normal work assignments could be postponed until after the emergency subsided. He
union and nonunion employees were used for dike duty and that it was vital to reuse the
employees over the weekend of April 21-22, 2001, because those people had a "before" and
view of the flood conditions.
City witness and Water and Utilities Manager Mark Johnson testified that his
the April 16, 2001, meeting was to arrange for a continuous inspection of the dikes. He
during the meeting a decision was made to use employees primarily
from the Engineering and the Inspection Department for dike duty. However, and
after all of the
Engineering and Inspection people were assigned, seven more employees were needed to be
list for dike duty by 1:30 p.m. on that same day. A decision was made to fill these seven
the Water Distribution Department because there were employees there without prescheduled
appointments or other scheduled essential duties.
The dike patrol work was voluntary in nature. Johnson testified that the Grievants
asked to perform dike duty because they were both scheduled to do meter readings and had
appointments. Further, Johnson testified that once the dike patrol work began, the same
were needed to retain continuity. Moreover, and according to Johnson, there is nothing in
Agreement which gives the Department jurisdiction over the flooding of the Mississippi, and
Department has not previously been involved in issues of flooding. Johnson testified that the
applies solely to overtime issues related to the Department's infrastructure, such as water in
or other types of water system emergencies.
City witness and Director of Public Works Caffrey testified that the 2001 flood was
emergency situation, that lives and property would be jeopardized if the dikes had breached,
it was the worst flood since 1965. Contrary to Christen's testimony, Caffrey denied that he
a meeting at 1:00 p.m. in the Engineer's Conference Room, and that on that date and time
Works meeting was still in session. Therefore, the conclusion that should be reached is that
meeting that Christen testified about never took place.
City witness and Director of Human Resources James Geissner testified that the 2001
was an emergency which involved various City departments and volunteers. This effort was
the overall direction of Mayor of La Crosse and with Caffrey as the flood coordinator. In
the City's Police Department used a reverse 911 system, door-to-door volunteers were
dike patrols were used. Geissner testified that there is no language in the Agreement which
to the 2001 flood and that the dike work performed is not bargaining unit work. Geissner
testified that the Policy applies only to Department emergencies such as a water main break
situations in which the Department has jurisdiction.
Not bargaining unit work.
The Union has not supplied evidence that the volunteer work done on dike patrol is
unit work. Both union and non-union employees played an integral part in the flood of 2001.
It is well settled arbitral principal that management's freedom to act may be expanded
managerial obligations may be narrowed if an emergency, an act of God, or a condition
control of management is involved. The Union has not offered any testimony to support its
that the 2001 flood was not an emergency. The City, on the other hand, has offered
the 2001 flood circumstances was an emergency. Because of the emergency circumstances in
case, the City did not violate the Agreement or the Policy when it did not offer overtime to
Grievants for the week of April 16, 2001.
The City misstates Christen's testimony regarding what Christen overheard on
April 16, 2001.
The statement, "We are going to have to go by seniority (to work on flood duty)" is
Turtenwald, not Caffrey as asserted in the City's brief. Following Turtenwald's statement,
uttered words that he did not want to have any trouble with the Union regarding this matter.
should be noted that Caffrey did not deny uttering words to that effect. Further, the City
Turtenwald as a witness. Therefore, the record establishes the City's admission that it failed
seniority in the assignment of overtime under these circumstances.
The City's suggestion that there is no language which requires the assignment of
seniority is not true. Article 19 provides for the promulgation of rules for this residual
unit, which includes the Policy. This Policy was negotiated between the parties, was posted
Department, and there are no other rules which apply to the issue of overtime assignment. It
be industrial chaos to conclude that the Policy is not a part of the Agreement.
With regard to the Emergency Doctrine, such a doctrine is confined to unforeseen
circumstances where the exercise of discretion is not permitted. In this case, the
both foreseen and the circumstances permitted discretion. Therefore, it should not be
these circumstances fall under this doctrine and to abandon the negotiated Policy. Simply
there was a flood, and because the flood was in some circles labeled an emergency, such
do not establish by fact, law or reason why the City should not follow its own emergency
The grievances should be sustained and the Grievants should be awarded overtime
equivalent compensatory time at the Grievants' option.
The City's Reply
The Policy does not apply.
The Policy does not apply to this case. City employees, including Water Distribution
employees and employees from other City departments, were in effect "transferred" from
respective departments to do emergency flood service work during the week of April 16,
According to Assistant Director of Public Works Hutchens, it was unknown whether this
would be for one or three weeks. Further, and according to Hutchens, employees were
upon their department's ability to operate without them.
The Policy is expressly for emergency call-outs involving employees in the Water
Department. Testimony at the hearing confirms that such emergencies involve the
infrastructure, such as a water main break. In this case, the City employees who performing
service work were not responding to a call, nor were they on call. They were volunteers.
contrasted with the Policy, which, according to testimony at the hearing, is mandatory.
Alleged past practice.
The Union's past practice argument is undeveloped and unpersuasive. According to
witness Graff, the Policy has never been used for anything other than an emergency
Department's infrastructure. There were no witnesses whose testimony supports the Union's
of past practice.
With regard to City Engineer Turtenwald's alleged statement, even if it had occurred,
has not been proven by the Union, it has no impact on this case. Since Turtenwald works in
Engineers Department, and not in the Water Distribution Department, his statement would
employees in the Engineer's Department. Moreover, Director of Public Works Caffrey
Caffrey was present for such a meeting or that Caffrey made such a statement.
If the Union wishes to attribute a statement to an individual, it should bear the burden
producing that individual. Christen's recollection of such a statement is flawed. Contrary to
Christen's testimony that this meeting took place on April 16, 2002, and that Hutchens,
Caffrey were present for the meeting, Hutchens, Johnson, and Caffrey all testified that they
present at such a meeting on April 16, 2001.
Alleged exigent circumstances and pretext.
With regard to the Union's argument on exigent circumstances, the City reiterates its
that the Policy only applies to infrastructural emergencies.
The Union's assertion that the circumstances did not constitute an emergency is
and without basis in fact. There were no Union witnesses in support of this assertion.
anyone that lives on the banks of the Mississippi would concede that a forecast of the river's
of over 17 feet constitutes an emergency. In addition, both the Governor of the State of
and the Federal Government declared the situation an emergency. Hundreds of volunteers
called upon, there was substantial property loss, and there was the potential for substantial
loss of life.
With regard to the Union's argument that the City acts were pretext, Assistant
Public Works Hutchens testified that management needed people for one to three weeks and
was looking for employees who could be away from their departments for an unknown
time. Moreover, Water Utility Manager Johnson testified that the Grievants were both
work and had other appointments. The Union's testimony on this point is not credible.
Article 19 of the Agreement provides that the City reserves the right to direct the
This right is expanded in situations involving an emergency, an act of God, or a condition
control of management. Management must have the right to meet emergencies in an
manner. Virginia-Caroline Chemical Company, 42 LA 237 (Kesselman, 1964).
Article 19 of the Agreement states that the City is vested with the right "to make
work rules." A work rule for these Water Department Distribution employees is the "Non
and Emergency Overtime Policy for Water Distribution Employees," i.e., the Policy, which
seniority when determining which employees are offered overtime hours. Thus, Article 19
incorporates the Policy as a "work rule" and the issue, as framed by this Arbitrator, is
City violated Article 19 when offering flood patrol work to Water Department Distribution
during the week of April 16, 2001, thereby resulting in a loss of overtime hours to the
The Union asserts that "[a]ny other overtime will be by seniority . . ." in the Policy
unambiguous and broad and that it applies to all Department employees. I agree. The
other" widens the scope of the examples of overtime listed in the Policy and it clearly means
City must follow seniority in situations not specified for these employees. I agree with the
if the work is done for the City and by bargaining unit employees, than the Policy covers it,
there are exceptional circumstances.
The Union also argues that the word "emergency" in the Policy means that the Policy
all emergency situations. I disagree. I do not think that that word can be stretched to that
The word "emergency" appears only in the title of the Policy and nowhere else in the body
document. On its face, "emergency" qualifies the word "overtime" in the title, but the
of the two words "emergency overtime" is not otherwise illustrated or interpreted in the
By itself, and appearing only in the title, "emergency overtime" is ambiguous. Therefore, I
read into the Policy that it is the overtime policy in emergency situations.
Regarding the Union's allegation that City admitted its failure to follow the Policy, I
find that evidence compelling. Union witness Christen testified that City Engineer
to Director of Public Works Caffrey on April 16, 2001, and after a 1:00 p.m. meeting
had ended, that
the City would need to go by seniority when picking volunteers, whereupon Caffrey agreed
that the City will have to go by the Union. Christen also testified that in attendance at that
meeting were management employees Hutchens and Johnson. However, Caffrey testified
that he did
not recall these statements and that he would have remembered had such a statements been
Caffrey also testified, and under cross examination, that he did not recall Turtenwald ever
go by strict seniority and with regard to the patrol issue. Turtenwald was not available at the
of hearing and the City chose not to call him. Hutchens testified that he did not recall these
statements and, regardless, at 1:00 p.m. on April 16, 2001, Hutchens was out patrolling the
As to Johnson, he was at the hearing during Christen's testimony. Johnson testified that
not there on April 16, 2001. In my opinion, the overall testimony does not support a
the City admitted its improper use of the Policy as of April 16, 2001.
Since the express terms of the Policy are ambiguous, I turn to the parties' past
determine their intent.
The manner in which the parties have utilized the Policy supports a more restrictive
interpretation of the word "emergency." Union Steward Mark Graff testified that the Policy
applied when responding to police and homeowner calls such as an open street manhole
in someone's basement, or questionable drinking water. Water Department Manager Mark
testified that the Policy is used for events such as a water main break, a service leak, and
coming up from below the streets. Graff characterized these instances as those which
Water Department's infrastructure. Johnson referred to these situations as water system
In either case, the parties have used the Policy in the past during specific kinds of
Therefore, a distinction must be made between those emergencies which have been met
provisions of the Policy, and those emergencies which are unforeseen and which go beyond
and Article 19.
Compare, Virginia-Caroline Chemical Company, 42 LA 237, at 240 (Kesselman,
(distinction made between those emergencies which are met within the provisions of the
and those emergencies going beyond the agreement).
Contrary to the Union's suggested assertion, Geissner's testimony does not establish a
different past practice.
Inasmuch as the Policy does not cover emergencies within the broad sense of the
term, it is
necessary to determine whether the instant set of facts established an emergency as that term
widely understood. If there was, and under certain limited conditions as explained below,
City may have the ability to not follow seniority when determining overtime. If there was
emergency, then the City's failure to follow seniority is a violation of the Policy's reference
It is generally acknowledged that management's freedom to act may be expanded in
emergency situation, but that such action is limited to unavoidable situations and, then, only
amount of time necessary. Elkouri and Elkouri, How Arbitration Works,
5th Edition, p. 737 (1997);
see also, Milwaukee Metropolitan Sewerage Dist., WERC MA-6620 (Engmann, 8/92). The
Union asserts that the City cannot rely on a claim of an emergency if the situation regarding
work was known in advance and the City was able to exercise discretion. I agree with this
assertion and add that in order for the City to not run afoul of an expanded ability to act in
emergency, that the City's acts mustnot go beyond the amount of time
The City asserts that on April 16, 2001, at about 1:00 p.m., the conditions
commencement of dike patrols and that those patrols needed to begin within a few hours.
the Union asserts that the City knew about the flooding conditions prior to that time and,
decision to use patrols outside of the Policy's system of seniority in the Water Department
avoidable. The Union points to flood stage projections that had been made the week prior to
16, 2001, as shown by Union Exhibit 3, and as evidenced by the Mayor's notice dated April
I am not persuaded by the evidence before me that the City could have made an
decision to conduct dike patrols. The Union's Exhibit 3 shows measurements of water
dates from April 1, 2001, through May 31, 2001. For example, it states that on April 12 the
at 12.52 footstage, on April 13, it was at 12.97, on April 14, it was at 14.09, on April 15, it
14.85, and on April 16, it was at 15.22. Nothing in Union Exhibit 3 makes projections of
flood stage and only actual measurements for each date are stated. I can surmise from this
river was rising. But I cannot conclude from this that on a date prior to April 16, 2001, at a
footstage, the City knew that dike patrols were needed or that the City should have been
conduct dike patrols on an earlier date.
The Mayor's notice dated April 13, 2001, is similarly insufficient for me to conclude
City had time to assess the dike patrol scenario prior to when it did on April 16, 2001. The
went above 15 feet on April 16, 2001 (Union Exhibit 3), which was the measured point at
notice was advising the evacuation of homes. I cannot determine from this that on April 13,
when the river was measured at 12.97 feet, that the decision to patrol the dikes should have
could have been made. Anthony Hutchens, the City's dike expert, testified that each 6
increased height of the river makes the flooding condition significantly more difficult. When
compare the difference in the river's height between April 13, 2001, and April 16, 2001, the
2.25 feet, or 27 inches. Thus, it is possible that the picture had significantly changed from
to 16, 2001, and that City was waiting to see if the river would rise above 15 feet before it
that dike patrols were necessary. In sum, I do not have enough evidence which would lead
me to the
conclusion that the City could have avoided the quick decision making that occurred on April
2001, and which resulted in the City not following the Policy when offering overtime to
Department Distribution employees.
I agree with the City that its decision to use and to continue to use the Water
Distribution employees who had experience patrolling the dikes was reasonable. Although
is correct that the work of patrolling was not particularly complicated, this does not persuade
the consistency of the work was unimportant. The consistency of knowing what to look for
having that experience after patrolling the dikes was extremely important in that inexperience
lead to a missed problem which could turn into a dike breach. According to Hutchens, any
would be extremely difficult to stop. Therefore, I find the City's failure not to pull those
less senior than the Grievants off of their initial patrol duty so as to offer patrol work to the
senior Grievants did not violate Article 19.
However, once the shifts had been established and the patrols were going forward
experienced people, I find that the City went beyond the time necessary to cover this
when, on April 19, 2001, it offered overtime to Tammy Roellich. Roellich, who has less
than both of the Grievants, received her first opportunity to do patrol work on April 19,
because someone elsewho had signed up on April 16, 2001, had a
conflict on April 19, 2001, and
the City needed to fill that one person's patrol slot. At that point in time, it seems to me,
for quick action was over. The patrols had been established three days prior and the City
was in a
position to look to the Policy to determine to whom to next offer patrol work. Therefore,
should have been following the Policy by April 19, 2001, and it should have offered the one
patrol slot to the Water Department Distribution employee who was not already patrolling
had the most seniority. In this case, that would have been Grievant Stremcha.
I agree with the Union that overtime and/or the equivalent compensatory time at
Stremcha's option is consistent with Article 12, Section D, of the Agreement. Therefore, that
should be followed. I also agree that Stremcha is entitled to an amount equal to what
received, i.e., 24 hours, and which corresponds with what the City offered to Roellich to
patrol during the week of April 16, 2001.
Based upon the foregoing and the record as a whole, it is the decision and award of
undersigned Arbitrator that the City violated Article 19 when offering flood patrol work to
Department Distribution employees during the week of April 16, 2001, resulting in a loss of
to Grievant Stremcha. Therefore, that grievance is sustained.
The City is directed to compensate Stremcha with 24 hours of paid overtime at that
effect for Stremcha on April 19, 2001, or, at Stremcha's option, the equivalent in
and pursuant to Article 12, Section D. I shall retain jurisdiction until April 12, 2002, to
disputes which may arise over the application of this remedy.
Regarding the grievance filed by Grievant Italiano, that grievance is denied.
Dated at Eau Claire, Wisconsin this 13th day of March, 2002.
Stephen G. Bohrer, Arbitrator.