BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY MENTAL HEALTH CENTER
LOCAL 1901, AFSCME, AFL-CIO
(Overtime Gender Grievance)
Mr. Michael J. Wilson, Staff Representative, Wisconsin Council
40, on behalf of the Union.
Mr. John C. Jacques, Assistant Corporation Counsel, on behalf
of the County.
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Green Bay, Wisconsin, on January 16, 2001, and December 13, 2001, at which time the
agreed I should retain jurisdiction if the grievance is sustained. The hearing was transcribed
parties filed briefs that were received by March 7, 2002.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree upon the issue, I have framed it as
Did the County violate Article 11 and/or any other part of the
contract when it stopped offering
extra shifts and/or hours based upon gender and, if so, what is the appropriate remedy?
The County operates a mental health facility in Green Bay, Wisconsin, where it
trained and untrained Nursing Assistants. For the last 20 years or so, the County has
separate seniority rosters for the Nursing Assistants based on gender even though they share
Nursing Assistant job description (County Exhibit 1). Hence, if a male Nursing Assistant
to fill in at straight time for another male Nursing Assistant, the County attempted to contact
Nursing Assistants on the male seniority list before turning to the female seniority list for
time work. If that proved unsuccessful, the County then offered overtime to male Nursing
and then to female Nursing Assistants. Conversely, if a female Nursing Assistant was
needed to fill
in at straight time for another female Nursing Assistant, the County offered that straight time
female Nursing Assistants on the female seniority list before turning to the male seniority
list. If that
was unsuccessful, the County then offered overtime to female Nursing Assistants and then to
Nursing Assistants. As a result, Nursing Assistants were offered overtime even though other
Assistants on the opposite gender's seniority list had more seniority than they did.
This system apparently worked well enough when there were the same number of
male Nursing Assistants because the overtime hours were distributed fairly evenly between
and male seniority lists. Now, there are more female Nursing Assistants than male Nursing
Assistants. Hence, male Nursing Assistants over the years have received more and more
thereby resulting in fewer extra hours for those female Nursing Assistants who have more
than some of the less junior male Nursing Assistants. This separate seniority system also
was time-consuming because office personnel had to work with both seniority lists and it also
resulted in extra
By memorandum dated June 9, 2000 (unless otherwise stated, all dates hereinafter
2000), Nursing Home Administrator Earlene Ronk informed bargaining unit members:
. . .
The current procedure to call out hours for Nursing Staff at this
facility is called out by gender
in seniority order. This procedure has proved to be very time consuming and currently
approximately twenty-five hours per week to call out all hours. This process will be changed
effort to complete the
staffing process in a more timely manner.
Effective Monday, June 26, 2000 all hours will be
called in seniority order regardless of gender. For example, all Certified Nursing Assistant
be called out males and females simultaneously in seniority order first for straight time and
overtime. The end result will be awarding of hours in seniority order in a timely manner.
This in turn
will allow us to safely staff this facility in an effort to provide safe, effectual client care
which is our
ultimate goal in this organization.
. . .
The change referenced in Ronk's memo took effect on June 26 after the Union grieved
it on June 9
(Joint Exhibit 2), thereby leading to the instant proceeding.
POSITIONS OF THE PARTIES
The Union claims that the County has violated the contract because "gender
respected as a qualification within the classification of Nursing Assistant" and it argues that
a well-developed past practice of offering extra hours based upon gender and that the practice
protected under Article 6, the Maintenance of Benefits proviso. The Union therefore
the County be ordered to revert back to that prior practice.
The County contends that it has acted properly because its new procedure recognizes
seniority; because there has been no violation of Article 2 or Article 6, the Maintenance of
clause; and because the contract does not protect all past practices. The County also asserts
had legitimate business reasons for making its change, i.e., to cut down on the amount of
time it takes
to call employees and to also overcome the shortage of male Nursing Assistants.
This case largely turns on the interpretation and application of Article 11 of the
entitled "Overtime", which provides in pertinent part:
. . .
Overtime shall be awarded utilizing a system of strict
seniority according to qualified individuals
within a classification. (Emphasis added).
On-call employees shall not work overtime
unless all regular qualified employees within a
classification are on overtime or unavailable to work.
On its face, this language does not refer to gender, as it instead only refers to awarding
"according to qualified individuals within a classification." In addition, Article 24 entitled
states that the County must "recognize seniority. . ."
Elsewhere, Appendix A of the contract, entitled "1997-1998 Classification and
Plan", refers to "Nursing Assistant (Untrained)" and "Nursing Assistant (Trained)". Hence,
no classification in the contract that breaks down such work along gender lines. To the
Nursing Assistants are in the same job classification and have the same job description
Exhibit 1). Article 11 on its face therefore is clear and unambiguous in mandating that
be awarded on the basis of seniority to "qualified individuals" within the Nursing Assistant
classification without regard to gender.
However, the Union correctly points out that a practice has existed over the last 20 or
years under which overtime was offered by gender and that Article 6 of the contract,
"Maintenance of Benefits", states in pertinent part: "The Employer agrees to maintain
benefits that are mandatory subjects of bargaining and are not specifically referred to in this
agreement." The Union also is correct in stating that the County in the past has posted
Assistant positions according to gender; that it regularly schedules Nursing Assistants
gender; and that gender also has been used for bumping purposes, for shift preferences, and
The Maintenance of Benefits proviso, however, expressly excludes from its coverage
benefits that are "specifically referred to in this agreement", which here means the
overtime provided for in Article 11. Article 6 therefore does not supersede Article 11.
In addition, the underlying reason for assigning overtime by gender is no longer
because of the decline in the number of male Nursing Assistants. For as the County states in
. . .
The Union seeks to "freeze" the call-in procedure when the
underlying factual basis for the
former practice has dramatically changed due to the shortage of male Nursing Assistants.
underlying factual basis for the practice was that the number of male Nursing Assistants on
seniority list would be adequate to fill-in for absent males. In the recent past, even position
of openings for those Nursing Assistant positions designated for male ("NAM"), have been
posted into by female Nursing Assistants.
. . .
Such a material change in circumstance can render certain past practices inoperable, a
made by Arbitrator Richard Mittenthal in his seminal article on past practice when he wrote:
"One must consider, too, the underlying circumstances which give
a practice its true dimensions.
A practice is no broader than the circumstances out of which it has arisen, although its scope
always be enlarged in the day-to-day administration of the agreement. No meaningful
a practice can be made without mention of these circumstances. For instance, a work
practice which develops on the afternoon and midnight shifts and which is responsive to the
needs of night work cannot be automatically extended to the day shift. The point is that
practice must be carefully related to its origin and purpose.
. . .
Consider finally the effect of changing circumstances on the
viability of a practice during the
contract term. Where the conditions which gave rise to a practice no longer exist, the
not obliged to continue to apply the practice. Suppose, for instance, that crane operators
extremely hot materials have for years been given a certain amount of relief time during their
that after installing an air-conditioning unit in one of the crane cabs the employer refuses to
more relief time to the operator of that crane. Whether the employer's action is justifiable
upon the reason behind the relief time practice."
See Richard Mittenthal, "Past Practice And The Administration
Of Collective Bargaining
Agreements" From Arbitration and Public Policy, Proceedings of the
14th Annual Meeting of the
National Academy of Arbitrators (BNA, 1961), pp. 30, 32-33, 56-57.
Here, if the Union's grievance is sustained, that would create a
great disparity by awarding more
overtime to male Nursing Assistants at the expense of female Nursing Assistants. Such a
therefore would gut at least for overtime purposes the very principle upon
which seniority is
based, a point well made by the County which notes: "There can be no more equitable
that which is being challenged in this grievance." I agree.
Based upon the above, it therefore is my
1. That the County did not violate Article 11 and/or any other part of the contract
it stopped offering extra shifts and/or hours based upon gender.
2. The grievance is therefore denied.
Dated at Madison, Wisconsin, this 5th day of June, 2002.