BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY (HIGHWAY
WINNEBAGO COUNTY HIGHWAY DEPARTMENT
UNION, LOCAL 1903, AFSCME, AFL-CIO
(Assignment of Overtime -- Golliher Grievance)
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, P.O. Box 2825, Appleton, WI 54913, on behalf of the Union.
Mr. John A. Bodnar, Corporation Counsel, Winnebago County, 415
Jackson Street, P.O. Box 2808, Oshkosh, WI 54903-2808, on behalf of the County.
Winnebago County (Highway Department), hereafter County, and Winnebago County
Highway Department Employees Union, Local 1903, AFSCME, AFL-CIO, hereafter Union,
parties to a collective bargaining agreement covering the years 1998-2000, which provides
and binding arbitration of grievances. Pursuant to a joint request of the parties to the
Employment Relations Commission, Sharon A. Gallagher, was requested to hear and decide
regarding the assignment of overtime. Hearing in the matter was held on February 5, 2002,
Oshkosh, Wisconsin. No stenographic transcript of the proceedings was made. The parties
submitted initial post-hearing briefs directly to each other with a copy to the Arbitrator on
2002. The parties reserved the right to file reply briefs but they advised the Arbitrator on
2002, that they would waive replies. The record was then closed.
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 were unable to stipulate to an issue or issues to before the Arbitrator.
suggested the following issues for determination:
Did the County violate the collective bargaining agreement
it failed to offer overtime
to a senior rollerman on August 20, 1999? If so, what is the appropriate remedy?
The County suggested the following issues for determination:
Did the County violate the collective bargaining agreement
it offered overtime to a less
senior employee and failed to offer it to a more senior employee? If so, what is the
The parties stipulated that the Arbitrator could frame the issues based upon the
evidence and argument in the case as well as their suggested issues. Based on these factors,
undersigned finds that the Union's issues statement is a reasonable statement of the issues
Arbitrator and it shall be determined herein.
1. The management of the Winnebago
County Highway (including the Landfill), Solid Waste,
Airport, and Parks Departments and the direction of the employees in the bargaining unit,
but not limited to,
the right to hire,
the right to assign
employees to jobs and equipment in accordance with the provisions of this
the right to assign overtime
the right to relieve
employees from duty because of lack of work or for other legitimate
reasons, shall be vested exclusively in the County.
2. In the event of change of
equipment, the County shall have the right to reduce the working
force if, in the sole judgment of the County, such reduction in the work force is required and
in this Agreement shall be construed to restrict the right of the County to adopt, or install, or
new or improved equipment or methods of operation.
3. The Union recognizes the exclusive
right of the County to establish work rules.
4. The Union recognizes that the County has statutory and
charter rights and obligations in
contracting for matters relating to some municipal operations. The right of contracting or
subcontracting is vested exclusively in the County.
The County recognizes seniority.
Seniority is defined as the length of County service as it is
measured from the last date the employee was hired by the County and continuing until he
is discharged. Persons who move from temporary or seasonal positions to permanent
without a break in their continuous service shall have such service recognized for purposes of
establishing a last date of hire.
Eligibility for benefits shall be determined
in accordance with the above.
The term "departmental seniority" shall
mean length of service within a specific department.
For purposes of interpreting this article, the departments are the following:
1. Highway (including Highway
Department employees assigned to the Landfill)
4. Solid Waste Department
Seniority shall not be diminished by
temporary layoffs or leaves of absence without pay, or
while receiving temporary Workers Compensation.
The County shall provide the Secretary of
the Union with current department seniority rosters
in December of each year.
For posting purposes, the seniority of
full-time employees shall be given preferential treatment
over part-time employees regardless of department.
With the exception of hours worked by Janitor-Watchmen and
the Custodians at the Airport,
and emergencies as defined herein, all time worked outside the regular basic work hours
considered overtime and shall be paid for at the rate equivalent to one and one-half (1-1/2)
employee's regular hourly rate. Custodians at the Airport who work more than eight (8)
hours in a
day or forty (40) hours in a week shall be paid at the rate of one and one-half (1-1/2) times
employee's regular hourly rate. Janitor-Watchman shall be paid overtime at the rate of time
and one-half (1-1/2) for all hours
worked in excess of their eight (8) hour shift and for hours
worked in excess of forty (40) in their
established work week.
All employees except those performing
work as Highway Janitor-Watchmen and the part-time
Airport Custodian, who are requested to and perform work on any Saturday or Sunday, or
of the dates provided for in Article 12 of this Agreement, shall receive pay equivalent
to one and one-half (1 1/2) times their regular hourly rate for each hour
worked, and, in addition, holiday pay, it any.
In emergencies, such as snow removal, ice
control, and flood control, the County may vary
an employee's regular basic work schedule up to three (3) hours. Said shifts shall be for a
of eight (8) hours inclusive of a lunch/break allowance.
Except for valid reasons, the employees
agree to work overtime in non-emergency situations
when requested by the County. For purposes of this Agreement, refusal to work overtime
of the time of day or nature of work shall not be considered valid reasons. Nothing herein
any way affect the-management rights of the County with respect to emergency overtime
Weekend overtime work, which is
scheduled in advance, shall be scheduled and paid for at
a minimum of one (1) unbroken hour.
Persons who are voluntarily assigned, on a
temporary basis, to a position with a regular basic
work schedule different from their regular schedule shall be eligible for overtime pay in
with their temporary schedule.
During the Summer of 1999, highway employees who were working on road
regularly worked four 10-hour days, Monday through Thursday, and then received an
weekend off (beginning each Friday). During the week prior to Friday, August 20, 1999,
rented a "sheep's foot" roller from Outagamie County in order to perform road building
County GG. This roller has square pegs on it for full-depth rolling and it is used following
pulverization of the old road for compacting of the new roadway. Winnebago County does
a "sheep's foot" roller. To complete this project, the County also rented (on an hourly basis)
Outagamie County's pulverizer machine and an Outagamie County operator to perform the
of the pulverizer operator.
County Highway employee Delap was assigned to operate the "sheep's foot" roller at
of this project. The County also assigned a County grader operator 1/ to that project at the
of the project and he also completed the project. It is undisputed that Delap was given
15-20 minutes of instruction on how to use the "sheep's foot" roller when he first began
that equipment during the week prior to August 20, 1999. It is also undisputed that
was confident in running the "sheep's foot" roller during the week prior to August 20, 1999.
Representative Lewis Clark III stated that anyone at the Highway Department can operate a
foot" roller but that it takes craftsmanship and experience to be good at operating a roller
Highway Superintendent Rasmussen requested that Delap and the grader operator
overtime duties on Friday, August 20, 1999, in order to finish the County GG project. It is
exactly how many hours the "sheep's foot" roller was operated on overtime by Delap on
1999. However, it is clear that the County GG project was finished on
August 20th, with the
completion of the overtime work.
1/ No evidence was offered to show who this
operator was or what seniority he had.
Superintendent Rasmussen stated that it is County past practice to assign overtime on
basis of seniority if all things are equal. However, Rasmussen stated that in regard to the
project, all things were not equal because the County wanted to make sure that there was
of work on the project when it assigned the employees who had begun the project to
complete it by
performing overtime on August 20, 1999. Rasmussen stated that he felt more comfortable
Delap performing the roller duties because Delap had been on the project at County GG all
Rasmussen believed that he was following the contract when he assigned Delap to perform
on August 20, 1999. Finally, Rasmussen stated that it would have taken more time to get a
roller operator familiar with the County GG project and train him/her on the "sheep's foot"
The Grievant, David Golliher, is a senior roller operator who performs asphalt
County. 2/ Rasmussen stated that Golliher would have been qualified to perform the work
"sheep's foot" roller and that others in the department could have performed the work as
Rasmussen also stated that others who are more senior than Golliher, but were not roller
could also have performed the work but that he did not ask any of them, preferring to keep
crew on the project to the end of that project for the overtime available on August 20, 1999.
2/ Golliher did not testify
Union Representative Clark stated herein that the Union brought the grievance in this
because it felt that because employees cannot turn down overtime pursuant to Article 20
valid reason, if the employees are not given proper recognition for their seniority, the
then assign overtime to anyone it wished in order to punish or reward certain employees.
Clark also stated that he felt that the Bielarczyk Award (Case 278, No. 54596,
different from the instant case. Clark stated that he believed that Golliher should have
August 20, 1999, overtime working on the Outagamie County "sheep's foot" roller because
the senior roller operator and he had an expectation of working with the paving crew during
Summer paving season and of being assigned to overtime with that crew.
Clark admitted that on August 20, 1999, Golliher's roller machine had been sent out
repair. Clark stated that the County could have trained Golliher on the "sheep's foot" roller
at the County Highway Department, as employees gain seniority they are able to sign for
jobs so as
to be assured that they can consistently operate certain equipment. In this instance, as
senior roller operator) had signed for that position, he should have been able to rely on
roller overtime during the paving season.
On September 2, 1999, Grievant Golliher filed a grievance 3/ indicating that
not asked him to work on Friday, August 20, 1999, instead of a less senior Class II laborer
who worked the overtime. The grievance cited Article 6 and requested that Golliher receive
overtime pay that he was entitled to. In its answer dated September 8, 1999, the Highway
Commissioner John Haese stated that pursuant to Article 1, Management Rights, the County:
. . . has the right to assign employees to jobs, equipment and
overtime work. In this particular
case, a compactor (sheeps foot roller) had been borrowed from Outagamie County. One of
highway department employees, Paul Delap, had been familiarized with and operating for
days. Therefore, the decision was made to keep him on the compactor for the duration of
Haese also cited the Bielarczyk Arbitration Award, issued March
2, 1998, as support for the County's
Finally, it should be noted that the Winnebago County Highway Commission
handbook shows that the County has no work rules which address the assignment and
of overtime work.
3/ No issue of timeliness was placed before
the Arbitrator herein.
POSITIONS OF THE PARTIES
The County argued that the contract does not assure employees the right to the
of overtime based upon seniority. In fact, the County noted that the contract provides just
opposite: that the employer has the right under Article 1, to assign overtime work. In
is no language in the contract to the contrary.
The Highway Department's management right to assign overtime to employees has
contested by the Union in the past. In a case factually similar to the instant case, WERC
Bielarczyk found that the labor contract contained no language that required the County to
overtime based on seniority and that no evidence of past practice had been
submitted to show that the County had violated the contract, by not calling in a more
when the County changed equipment on the project and chose to use a less senior employee
overtime on that project. Bielarczyk noted that so long as the operator of the equipment was
qualified to use the equipment selected, the County had the right to offer the overtime to a
employee who was present on the project.
The County therefore urged that in accord with its past interpretation of the contract,
practice and the Bielarczyk Award, no contract violation occurred here where less senior
Delap was assigned and retained to operate the same equipment on a project he had been
on all week, to finish that project on overtime. The County contended that the grievance
denied and dismissed in its entirety for these reasons.
The Union did not contest the employer's right to assign overtime, but it urged that
should be tempered by Article 6 of the contract which requires the County to recognize
indicates that the County will determine benefits based upon seniority. Therefore, in the
view, the County should have assigned the August 20, 1999, overtime work on County GG
roller operator Golliher, as there was nothing in the contract, past practice or prior
which would give the County the right to arbitrarily assign the overtime work as it did in this
The Union also noted that Article 20 of the labor agreement requires employees to
overtime "except for valid reasons" whenever the County requests that they do so. Given
and the fact that Highway Department employees use their seniority to post for highly
equipment operator positions, the Union urged that senior roller operator Golliher, who had
seniority to get his roller operator position, should have been able to reasonably rely upon
roller operator overtime. The Union noted that overtime and overtime pay are important
unit employees and that the County's practice of not assigning employees overtime until the
before the overtime is performed has been problematic. 4/
4/ The Union submitted no evidence herein on
this latter point.
The County's reliance on the Bielarczyk Award was misplaced, in the Union's view,
case is factually distinguishable from the instant one. There, the overtime occurred after
employees had gone home from the project. The Union argued that in that case, the County
have called in a senior operator rather than using a less senior employee who happened to be
project. In the instant case, the equipment was borrowed from Outagamie County. Junior
Delap had been assigned to perform straight time work on the roller while the Grievant did
operator duties on another project all week. Thus, it is understandable that the Union did not
issue with the straight time assignment of Delap to the "sheep's foot" roller during the
In addition, the Union noted that Superintendent Rasmussen admitted that the
have operated the "sheep's foot" roller and that if all things were equal, the County generally
assign overtime by seniority. Therefore, the Union urged that the County should have
Golliher, the senior operator, to perform the overtime work available on August 20, 1999.
The Union disputed the County's argument that a delay would have occurred had the
assigned senior roller operator Golliher to the "sheep's foot" roller on August
20th. The Union
argued that Golliher, with his greater experience and craftsmanship as the senior roller
could have easily familiarized himself with the "sheep's foot" roller in the 15-20 minutes (or
Rasmussen stated it took Delap to receive his training on the machine. Thereafter, Golliher
have easily finished the project. As Golliher had posted for his roller job, he should have
the overtime, which he had both the right and the obligation to perform as senior roller
under the labor agreement. The Union queried if the County does not recognize seniority in
of situation involved in this case and senior employees cannot rely on their seniority, when
seniority be a benefit to unit employees. Therefore, the Union sought that the grievance be
and that Golliher be made whole.
The effective labor agreement between the parties is silent regarding how overtime is
assigned to employees. Significantly, the instant contract does not assure unit employees the
to be assigned overtime based upon their seniority, as many labor contracts do. In this
regard, I note
that Article 1, Management Rights, specifically reserves to the County the right
to "assign overtime."
In addition, the parties stipulated that the County's work rules applicable to the bargaining
not address how overtime should be assigned. Finally, the contract does not guarantee that
employees who have posted for and received specific equipment assignments must be
The Union has argued that because Article 20, Overtime, requires
employees to work
overtime in non-emergency situations when requested by the County (unless they have valid
and because Article 6 of the labor agreement requires that the County recognize overtime and
that the County will determine benefits based upon seniority, the County should be required
work in the Highway Department on the basis of seniority. In this regard, the Union noted
Highway Department employees use their seniority to post for equipment operator positions
to allow the County to disregard seniority by designating any employee they choose to
equipment, instead of the senior operator, would effectively destroy the value of seniority in
The difficulty the Arbitrator finds with these arguments is that the contract contains a
Management Rights clause (Article 1) and there is no specific contractual provision which
that overtime be assigned by the County on the basis of employee seniority or on the basis of
successful posting into equipment positions. Also, there is no evidence on this record to
what the quid pro quo for the language contained in Article 20 was or when
that language was placed
in the labor agreement and no work rules or practices were
submitted to support the Union's assertions regarding Articles 6 and 20. In these
cannot reasonably conclude that the parties intended that overtime be assigned on the basis of
The County proffered and the Union argued against the submission and consideration
1998 Award between these parties, authored by WERC Arbitrator Edmond Bielarczyk, Jr.
Bielarczyk found that the County did not violate the labor agreement because it was not
thereby to call in the grievant for overtime work to operate equipment he had posted onto on
ongoing project (on which the grievant had not been previously employed). Bielarczyk held
County was privileged under those circumstances and the labor agreement to retain the
the project who had been working on that project to perform the overtime work necessary
management's decision at the last minute to use the grievant's posted equipment on the
perform the overtime work was made based on business necessity reasons (weather/ground
conditions). In this Arbitrator's view, the facts of the Bielarczyk Award are distinguishable
those of the instant case.
In the instant case, the equipment was rented by the County from
Outagamie County and
Operator Delap had been assigned to operate the sheep's foot roller for the entire week prior
assignment to perform overtime work on that equipment in order to finish that project.
specific facts of this case, the issue before Arbitrator Bielarczyk, whether the contract
County to assign overtime work to the senior operator on that specific posted equipment
the County), is not before me.
The Union asserted that the County's decision to retain Operator Delap on the
roller for overtime work at the end of the week on August 20, 1999, was an arbitrary
However, the facts failed to support such a conclusion. In this case, I note that
Rasmussen stated that although it is County practice to assign overtime on the basis of
where an employee has been working on a project, the County prefers continuity of work
seniority when it assigns employee overtime. 5/ I cannot find that Rasmussen's preference
continuity of work on August 20, 1999, was arbitrary or unreasonable based on the facts of
Nor did the Union materially contest this point. In fact, the Union admitted herein that the
has the right to assign overtime. The facts herein showed that Delap had been employed
on the County GG project for the entire workweek prior to his assignment to complete that
on overtime using the same equipment that he had been operating for the entire week (the
sheep's foot roller). Thus, the fact that Delap had greater experience with this type of
with the County GG project and needed no training or familiarization thereon were valid
the County's decision to retain Delap on the project in order to complete the project on
1999; given the language contained in the labor agreement.
5/ There is no evidence to show that assigning
Golliher to perform the August 20, 1999, overtime would have
significantly delayed the project. The County also conceded that Golliher is an experience
and capable operator.
In all of the circumstances of this case, I cannot find a violation of the labor
agreement or of
past practice given the specific facts involved herein, and I therefore, issue the following
The County did not violate the collective bargaining agreement when it failed to offer
overtime to a senior roller man (Golliher) on August 20, 1999. The grievance is therefore
dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 22nd day of May, 2002.
Sharon A. Gallagher, Arbitrator