BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SAWYER COUNTY COURTHOUSE EMPLOYEES
LOCAL 1213-C, AFSCME, AFL-CIO
(Grievant Louise Ladenthin)
Mr. James E. Mattson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1701 East 7th Street, Superior, Wisconsin 54880, appearing on
behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Kathryn J.
Prenn, 3624 Oakwood Hills Parkway, Eau Claire, Wisconsin 54702-1030,
appearing on behalf of the County.
Sawyer County Courthouse Employees Union, Local 1213-C, AFSCME, AFL-CIO,
hereinafter the Union, with the concurrence of Sawyer County, hereinafter the County,
Wisconsin Employment Relations Commission to appoint a member of its staff to serve as
to hear and decide the instant dispute involving Louise Ladenthin, hereinafter the Grievant,
accordance with the grievance and arbitration procedures contained in the parties' collective
bargaining agreement, hereinafter the Agreement. The undersigned, Stephen G. Bohrer, was
designated. On April 8, 2002, a hearing was held in Hayward, Wisconsin. The hearing was
transcribed. On June 3, 2002, the parties submitted their initial briefs. On July 3, 2002,
receiving each of the parties' written waiver of any reply briefs, the record was closed.
The parties did not agree on a statement of the issues. The Union would state the
1. Did the Employer violate the terms of
the collective bargaining agreement when it denied the
Grievant payment for longevity for the hours she worked as a County EMT?
2. And if so; the appropriate remedy is for the Employer to
make the Grievant whole for any and
all lost longevity payments for hours the Grievant worked as a County EMT.
The County would state the issues as follows:
1. Is the County required to apply the longevity rates to the
hours worked by the Grievant as an
EMT outside of her regular work day when such hours are voluntary, are not required by the
and when such work has been treated by the parties as nonbargaining unit work?
2. If so, what is the appropriate remedy?
The Arbitrator states the issues as follows:
1. Did the County violate the Agreement when it did not
the longevity rates to the
hours worked by the Grievant as an Emergency Medical Technician outside of her regular
2. If so, what is the appropriate remedy?
ARTICLE 2 RECOGNITION
The Employer recognizes the Union as the exclusive bargaining
representative for all regular
full-time and regular part-time employees of Sawyer County who work in the County
and annexes, excluding all professional
employees, all employees of the Health and
Human Services Department, the County Highway
Department and Law Enforcement personnel, also excluding all elected officials and all
supervisory and confidential employees pursuant to certification by the Wisconsin
Relations Commission or as modified by mutual agreement on all matters with respect to
hours and conditions of employment.
. . .
. . .
Longevity: Effective July 1, 2001, employees shall
be paid longevity in accordance with the
After five (5) years 5 ¢ per hour
After ten (10) years 10 ¢ per hour
After fifteen (15) years 15 ¢ per hour
After twenty (20) years 20 ¢ per hour
After twenty five (25) years 25 ¢ per hour
The County is a municipal employer and operates an Emergency Ambulance Service
Department. The Department provides ambulance services throughout the County and has
stations located at Hayward, Stone Lake, Radisson, and Winter, Wisconsin. The
for the Department is located at the Hayward station where the Grievant and Administrator
Cody work. The Union represents various employees, including the Grievant.
The Grievant occupies the position of Ambulance Service Secretary I and has held
position since February 26, 1979. The following is the most recent update of the Grievant's
description, dated June 8, 1990:
1. Job Title: Clerk/Secretary/Emergency Medical Tech. for the
Sawyer County Ambulance
Service and Emergency Government Office.
2. Job functions and duties: Bookkeeping,
typing, filing, receipting, general clerical knowledge.
Receipt all moneys private pay,
Bill for services rendered and send
Post and balance entries in ledger.
Maintain current records on affiliated
Emergency Medical Technicians and their training.
Assist in setting up education for EMTs.
Maintain ambulance interiors including equipment and supplies.
Assist in developing emergency contingency plans.
Assist in filing reports for State and Federal offices.
Secretary for local Emergency Planning Committee (LEPC).
Assist Ambulance Administrator/Emergency Government
Coordinator with daily duties.
3. Education and experience: Must be
certified by the State of Wisconsin as an Emergency
Medical Technician (WI State Statute 146.50, WI Administrative Code H20). Must keep this
certification current at all times. Must be certified in C.P.R. at all times (AHA, BLS Course
American Red Cross C.P.R. for the Professional Rescuer). Must have valid WI vehicle
4. Physical requirements: Must be mentally, physically and
emotionally capable of performing
said job description.
5. Age: Must be at least 18 years of age.
The Grievant and Cody are the only two persons that work out of the Hayward
Grievant's regular work day is from 8:00 a.m. to 4:00 p.m., Monday through Friday, and
are primarily clerical in nature. However, and during this time period, the Grievant also
works as an
Emergency Medical Technician (EMT). As an EMT, the Grievant is required to make
runs on those occasions when the 911 Dispatcher places three unanswered calls for an
the other three ambulance stations.
On evenings and weekends, the Grievant works as an EMT
crew member at one of the other
three ambulance stations. She is one person in a pool of about eighty EMTs that work for
of which forty EMTs actively make regular ambulance runs from the other three stations.
Grievant signs up for this work and it is voluntary in that the County does not require the
to do this work. EMTs are not represented by a union.
The County unilaterally sets the wage rate for EMTs. At the time of the hearing,
was paid at the rate of $18.00 for the first hour, and $11.00 per hour for every hour
Grievant earned this EMT rate of pay regardless of where she performed the work. Thus,
Grievant received this rate of pay whether she performed EMT work during her regular work
on evenings and weekends at the other three stations. Otherwise, and according to the
the Grievant was earning $14.42 per hour effective January 1, 2001, and $14.85 per hour
January 1, 2002. The Union has played no role in negotiating the wage rates set for EMT
During bargaining, and as a part of the current Agreement, the parties negotiated and
to a new provision regarding longevity and as specifically enumerated above. Soon
Grievant noticed that while she was receiving longevity payment for her EMT work during
regular work hours, she was not receiving such payment for those times when she worked as
on evenings and weekends. On September 20, 2001, the Union filed a grievance alleging
County had violated the longevity provision of the Agreement when it refused to pay the
longevity pay for all hours worked as an EMT. The grievance was then advanced to
Additional background information is set forth in the Positions of the Parties and in
POSITIONS OF THE PARTIES
The Union makes three arguments in support of its assertion that the Grievant is
longevity pay for her after hours work as an EMT. First, Appendix A of the Agreement
employees shall be paid an additional longevity rate based upon their years of service for all
worked. This language does not state that longevity shall only apply to "some hours
does it exclude any classification of employee from being eligible for longevity pay.
Grievant is entitled to the longevity rate of pay for all hours worked since the Agreement
effective on July 1, 2001.
Second, the Grievant's EMT work is a part of her job duties. The very nature of
cannot be confined to a regular work schedule. Therefore, the Agreement's longevity rate of
should apply to the Grievant's EMT work at all times that she is performing it.
Third, the parties never intended during bargaining to exclude
the longevity rate from any
hours worked as an EMT. If there was such an intent, it would have been stated as an
the Agreement. Therefore, the evidence of bargaining history supports the Union's position.
With regard to the County's reliance upon a letter from its attorney to Administrator
this is an opinion of how EMT hours should be treated under the federal Fair Labor
This has nothing to do with the contractual obligations derived from the parties' Agreement.
issue before this Arbitrator deals with the Agreement and not an interpretation of federal law.
The County makes four arguments in support of its assertion that the grievance
denied. First, Article 2 states that the Agreement applies to regular full time and regular
employees. While EMTs are employees of the County, they are neither regular full time nor
part time employees. EMTs, at best, are casual voluntary employees. For example,
employees Delores Cecil and Dian DeLong have chosen to work as EMTs outside of and in
to their regular bargaining unit positions. The County has no authority to require Cecil and
to work as EMTs outside of and in addition to their regular unit work and has no recourse if
refuse to do so. Although the County has on limited occasions required the Grievant to take
ambulance runs during her regular work day and as a part of her regular job duties, this fact
transfer her voluntary after-hours EMT work into bargaining unit work. The after hours
is compensated at wage rates separate from the Agreement and has been unilaterally
the County. The Union played no role in establishing the EMT wage rates and the
no reference to the EMT position, its wage rate, or the hours of work for an EMT.
are not unit employees and the Agreement does not apply to non-bargaining unit work.
Second, the evidence of the parties' bargaining supports the County's position.
was a new provision in the Agreement and was originally proposed by the Union. The three
of the County's negotiations committee, Shirley Suhsen, Arlene Brandt, and Don Trettin, all
that throughout negotiations there was no discussion with regard to applying the longevity
to EMT hours performed outside of the employees' regular performance of duties. They
that there was no discussion about applying the longevity pay rate to non-bargaining unit
that the after hours EMT work is not covered by the Agreement. In addition, Suhsen
the Union never raised the issue that EMTs were regular part time employees. Since EMTs
work, this fact alone takes EMTs out of the definition of a regular part time employee. See,
Manitowoc County, Dec. No. 18351-A (WERC, 3/83), Juneau County, Dec. No. 18728-A
Any argument by the Union that the County should have
inquired during negotiations whether
longevity applies to non-bargaining work does not have merit. Such an argument is
the parties were negotiating bargaining unit work. This is similar to the proposition that the
should have inquired during negotiations whether sick leave and vacation accrual applies to
worked performing non-bargaining unit work.
Third, the evidence of the parties' past practice supports the County's position. On
29, 1997, the County's labor counsel wrote a letter to Administrator Brian Cody regarding
Grievant's wage rate for her after hours EMT work and for overtime purposes. The Grievant
responded to this letter in a note to Cody dated July 2, 1998, and acknowledged that her
EMT work is not subject to the wage rate under the Agreement. Thus, if those after hours
work are not subject to the Agreement's wage rate, then those same hours are also not
subject to the
Agreement's longevity provision.
Fourth, the Union's requested remedy is beyond the scope of the Arbitrator's
Article 6, Section F(3), states that the arbitrator shall not modify, add to or delete from the
terms of the Agreement. Article 2 provides that an employee must be a regular full time or
part time employee in order to be included in the bargaining unit. After hours EMT work
fall into either of these categories. Therefore, this Arbitrator lacks authority to compel the
of longevity, a bargaining unit provision, to non-bargaining unit work.
The Grievant received payments pursuant to the longevity provision of the Agreement
those times when she was working her regular work hours. This included those instances
Grievant worked as an EMT during her regular work hours. The Union takes issue with the
decision to apply longevity only to the Grievant's EMT work during her regular work hours
while she was working as an EMT at one of the other ambulance stations on evenings and
Therefore, the issues for determination, and as determined by this Arbitrator, are whether the
violated the Agreement when it did not apply the longevity rates to the hours worked by the
as an EMT outside her regular work day, and, if so, what is the appropriate remedy.
I agree with the Union that Appendix A of the Agreement is clear: all employees
longevity. However, Appendix A cannot be read in isolation. Appendix A must be
the context of the recognition clause provided for in Article 2 of the Agreement. This is
the well established arbitral principle that portions must not be given independent
that a collective bargaining agreement must be construed as a whole. Elkouri &
Elkouri, 5th Edition,
p. 492 (1997).
Article 2 states that the Union represents "all regular full-time
and regular part-time
employees of Sawyer County who work in the County Courthouse and annexes. . . ."
the issue of whether the Grievant is a "regular full-time" or a "regular part-time" employee
doing after hours EMT work, this language in Article 2 limits the Agreement's coverage to
done "in the County Courthouse and annexes." Thus, if the Grievant's after hours EMT
work at the
other three ambulance stations is done "in the County Courthouse and annexes," then it can
that it is bargaining unit work and the Agreement would apply, including longevity. If, on
hand, the disputed work is not done "in the County Courthouse and annexes," then it is
non-bargaining unit work and the provisions of the Agreement would not apply.
When determining the parties' contractual intent, arbitrators generally look to the
language of the agreement, statements made at precontract negotiations, bargaining history
practice. Elkouri, supra, at 479. In this case, the meaning of the
phrase "work in the County
Courthouse and annexes" is not clear by its terms. It is unclear, from the language itself,
meant by the term "annex" and whether the parties intended to include the County's three
stations, where the EMT crews perform their work, within the meaning of that term.
look toward the evidence of the parties' bargaining and the parties' past practice for
County witnesses Suhsen, Brandt and Trettin all testified that there was no discussion
throughout the most recent negotiations with regard to applying the longevity pay rate to
performed outside of employees' regular performance of duties. These three had been on the
County's negotiations committee for eight, twenty-two and four years, respectively. Based
their prior years of bargaining experience, they did not expect to discuss this type of work
most recent bargain. It had never been discussed before and, consequently, they did not
expect it to
be a part of this bargain. If the Union had raised the possibility, according to Suhsen, she
would have remembered. Further, she would have emphatically disagreed to bargain over
of work. According to Brandt, she was under the impression that such work had never been
union payroll. According to Trettin, if it had come up, he would have disagreed to applying
Agreement to this kind of work.
I find that this lack of discussion during bargaining with regard to after hours EMT
supports the County's position. It was reasonable for the County to believe that the scope of
work which was being bargained had not changed. This absence of change is consistent with
evidence that the EMTs at the three other stations had never been represented and the County
always separately and unilaterally set their wage rates and with no input from the Union.
assertion made by the Union that the County was obligated at the most recent round of
to state that the negotiations did not apply to such work does not have merit. I agree with
that it does not make sense to intentionally exclude discussion during bargaining over work
the parties have historically not included.
In addition, it is significant that the County has no ability to discipline the Grievant if
refuses to perform her after hours EMT work. Contrary to any assertion by the Union, this
not a part of the Grievant's job duties. A review of the Grievant's job description bears this
Although the Grievant uses the same skills to perform both types of work, the evidence is
after hours EMT work is voluntary and in addition to her regular duties. Further, there was
evidence that any provision under the Agreement had ever been applied to the Grievant, or
else, while performing after hours EMT work.
I do agree with the Union that the Grievant's after hours EMT work is important and
valuable. Without a doubt, the Grievant's services in this regard are vital to her community
the citizens of Sawyer County. However, the evidence is that this type of work is not the
the parties intended to be included as a part of their Agreement covering work done "in the
Courthouse and annexes." Hence, such work is not bargaining unit work. When the County
not to pay the Grievant a longevity rate for her work in that capacity, its actions, therefore,
affect the Agreement.
With regard to the Grievant's note dated July 2, 1998, I find that the content is
that it does not purport what the County asserts it to say. Therefore, I do not attach any
to this document.
Finally, it should be noted that I make no conclusion with regard to whether the
working as a "regular part-time" or a "regular full-time" employee while performing her
EMT work. A determination of this is not necessary.
In conclusion, the evidence supports the view that the parties did not intend that after
EMT work be included within the meaning of the phrase "in the County Courthouse and
and as a part of the recognition clause in Article 2 of the Agreement. Therefore, I find that
work is non-bargaining unit work and the County's decision not to pay the Grievant the
longevity rate for after hours EMT work is not a violation of the Agreement.
Based on the foregoing, and the record as a whole, I have made the following
The County did not violate the Agreement when it did not apply the longevity rates to
hours worked by the Grievant as an Emergency Medical Technician outside of her regular
Therefore, the grievance is denied.
Dated at Eau Claire, Wisconsin this 15th day of October, 2002.