BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
VILLAGE OF BROWN DEER
NORTH SHORE SUBURBAN EMPLOYEES, LOCAL
DISTRICT COUNCIL 48, AFSCME, AFL-CIO
Podell, Ugent & Haney, S.C., by Attorney Donna L.
Billman, 611 North Broadway, Suite
Milwaukee, WI 53202-5004, on behalf of Local 1486.
Davis & Kuelthau, S.C., by Attorney Mark L. Olson, 111
East Kilbourn Avenue, Suite 1400,
Milwaukee, WI 53202-6613, on behalf of the Village.
Pursuant to the 2001-03 collective bargaining agreement between the Village of
(Village) and North Shore Suburban Employees, Local 1486 (Union), the parties requested
Wisconsin Employment Relations Commission designate an arbitrator to hear and resolve a
between regarding the proper interpretation of Article IX Hours of Work, Premium
Overtime. The undersigned was so designated. A hearing in the matter was held on
2002, at Brown Deer, Wisconsin. A stenographic transcript of the proceedings was made
received on October 29, 2002. The parties submitted their initial post-hearing briefs by
26, 2002, which were thereafter exchanged by the Arbitrator. The parties reserved the right
reply briefs, which were received by the Arbitrator on December 12, 2002. The record was
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 for determination in this
However, they stipulated to allow the Arbitrator to state the issues in her Award based upon
relevant evidence and argument in the case, as well as the parties' suggested issues. The
suggested the following issues:
Did the Employer violate the collective bargaining agreement
when it unilaterally elected to
turn overtime into compensation time for the Grievant during the pay period ending April 13,
If so, what is the appropriate remedy?
The Village suggested the following issues for determination:
Did the Employer violate the provisions of Article IX, Section
8, of the 2001-03 contract
when the Village Manager provided compensation to the Grievant in the form of
for work she performed on April 10 and 11, 2002, when the work had not been approved in
by the Village Manager? If so, what is the appropriate remedy?
Having considered the parties suggestions, as well as the relevant evidence and
this case, the Employer's issues (although somewhat argumentative) more reasonably state
dispute between the parties and they shall be determined herein.
Hours of Work, Premium Pay, and Overtime
. . .
Section 3 Overtime
Overtime shall be distributed as equally as
(a) Employees in the Public
Works Department and the Water Department telephoned to report
to work who do not answer the telephone or who are unwilling to report to work shall be
charged with the overtime hours as though they had reported and worked. An employee who
is not going to be
at home and who so advised the respective Superintendent in
advance in writing, shall not be
so charged. Once all employees of the Department where the overtime has arisen have been
telephoned, other bargaining unit employees shall be called in, provided there is work
available which the employee can do. If the force is still insufficient, the Village shall be
to resort to other means.
(b) Water Utility standby pay
shall not be counted as overtime.
(c) A record of each employee's overtime account
shall be posted and updated on a bi-weekly
basis with a copy provided to the Union Steward. Errors on this posting shall be brought to
the appropriate supervisor's attention during this two (2) week period.
. . .
Section 8 Overtime
Time and one-half shall be paid for all
work performed by bargaining unit employees for work
over eight(8) hours per day or forty(40) hours per week, and for all work performed on
Sunday and holiday work shall be compensated for at double time. The overtime rate shall
determined by multiplying the employee's hourly rate of pay by 1.5 or 2.0, respectively.
must be approved in advance by the Village manager or his/her designee.
. . .
Section 12 Compensation
Compensatory time off may be used by
all employees in order to provide an alternate form of
compensation for overtime hours worked. Compensatory time off shall be granted in the
as overtime pay; one(1) hour of overtime work will accumulate one and one half hours of
compensatory time off or if overtime worked on Sunday or holiday at two(2) hours of
time off for each hour of overtime worked. Compensatory time off may be used in lieu of
overtime pay. Those clerical employees who are entitled to overtime pay may elect to earn
compensatory time off in lieu of overtime pay. Employees will not earn compensatory time
after they have worked more than eight(8) hours on a given work day or more than 40 hours
given work week.
Department Head supervisors shall have the authority to grant
compensatory time off, within
reasonable limits, for their employees. All use of compensatory time off must be approved
by the employee's Department Head supervisor. When rendering decisions on the use of
compensatory time off, Department Head supervisors shall take into account the amount of
but unused vacation leave.
The use of compensatory time off is limited to a maximum of
56 hours per year. No employee
may accrue compensatory time off if the balance of earned but unused compensatory time off
hours. 56 hours is the maximum accumulation that can be carried at any one time. Any
worked fol1owing the accumulation of 48 hours of compensatory time must be compensated
the [sic] time and one-half pay. Carryover compensatory time shal1 be permitted, with prior
of the Village Manager. Such carryover of compensatory time must be requested from the
Manager no later than December 15 in order for such compensatory time to be carried over
year to the next.
The use of compensatory time off may not be disruptive to the
delivery of services to the public
or to the smooth functioning of the organization. Compensatory time off should not be used
instances where the employee's absence would pose an additional work load burden on
employees. The Department Head will make a reasonable decision regarding disruption of
delivery. Vacation use by other employees, which has already been scheduled, will receive
consideration over the use of compensatory time off.
When Compensatory time off is used, it
is the responsibility of the Department Head to make
arrangements with fellow employees to cover the absent employee's area of responsibility
absence, in much the same way as an absence due to illness or vacation.
Department Head supervisors shall be responsible for
maintaining records on the accumulation
and use of compensatory time off for their employees. For the purposes of earning and
compensatory time off and maintaining records thereof. [sic] Department Heads shall use a
12-month period beginning on January 1 and ending on December 31.
The accumulation and use of compensatory time off shall be
reflected on the employee's bi-weekly time sheets. Overtime hours worked should be shown
as "comp" hours on the right side of
the time sheet. The use of compensatory time off should be shown as "comp" hours on the
of the time sheet
. . .
The Grievant, Peg Duehring, has been employed by the Village for the past 13 years.
time the instant grievance arose, Duehring was employed as an Administrative Assistant in
and Recreation Department (Park and Rec) located in the basement of the Village Hall.
immediate supervisor at all times relevant hereto has been Virginia Goode, Department Head
and Rec. Russell Van Gompel has been employed by the Village as Village Manager since
In 2001, Duehring was allowed to carry over 55.14 hours of compensation time
Article IX, Section 12, and she carried that amount forward without change until the pay
ending March 16, 2002. On February 18, 2002, Village Manager Van Gompel issued the
memo to Park and Rec Department Head Goode, which read in relevant part as follow:
. . .
In light of the proposed reduction in Shared
Revenue from the State of Wisconsin, I instructed
Department Heads to minimize the use of overtime to emergency situations.
You are instructed to discontinue the use of
overtime in your department unless you have prior
authorization from me.
If you have any questions, please contact
This memo was not distributed to bargaining unit employees. In
addition, this memo was
undisputedly a departure from Van Gompel and his predecessors' past practice over at least
13 years of delegating the authority to approve overtime to Village Department Heads. Van
issued the above memo following then-Wisconsin Governor McCallum's proposal to
revenue from the State budget in early 2002, which Van Gompel felt would seriously affect
Village's ability to pay mounting costs for overtime. Van Gompel stated herein that he also
Department Heads (at a meeting with Department Heads) of his decision to change the past
regarding authorization of overtime. 1/ The Village never notified the Union of this change
1/ The Village did not proffer any evidence
herein to show that Goode was present at the Department Head
staff meeting about which Van Gompel testified. Goode did not testify herein. The
Governor's proposal to
eliminate shared revenue never became a reality.
On February 20, 2002, at 5:31 p.m., Department Head Goode e-mailed Van Gompel
. . .
I received your memorandum, dated
February 18, 2002, on the use of overtime. I am requesting
your authorization for the use of overtime for Peg Duehring for this evening for the purpose
4th of July minutes.
Please advise. Thank you.
Despite the fact that the above-quoted e-mail was sent after business hours on the day
overtime was to be worked, Van Gompel granted the authority for Duehring to work the
on February 20th and she received overtime pay therefor.
During the pay period ending March 16, 2002, Village records show that Duehring
3.75 hours of comp time (which equaled 5.63 usable hours). Also during this pay period,
used 7.25 hours of comp time which resulted in her accumulation of total compensatory time
of 53.52 hours, down from the prior total of 55.14 hours.
On Friday, March 22, 2002, at 5:03 p.m., Department Head Goode sent the
to Van Gompel concerning overtime use in her Department:
. . .
I am requesting up to 5 Hours Overtime for
Peg Duehring on Saturday, March 23.
tasks that need to be completed through Thursday, March 28.
Summer Program Flier, 3 Deposits,
Summer Staff Confirmation Letters, Senior Citizens Club
Membership List and April Senior Newsletter
Please confirm. Thank you.
On Monday, March 25, 2002, at 9:31 a.m., Van Gompel responded to Goode's e-mail
of March 22,
. . .
We need to sit down and talk about
requesting and utilizing overtime. These are tasks that need
to be completed during regular working hours. In addition, it is not practical to send a
5:03 p.m. on the day before the request and expect that an answer can be provided. This
After receiving the e-mail from the Village Manager, Goode told Duehring that her
for overtime hours for Duehring on March 23rd had been denied. 2/
2/ Duehring does not receive the e-mails that
are sent between Van Gompel and her supervisor Goode. In
addition, Duehring does not have access to Van Gompel's calendar or work schedule on a
On March 30, 2002, Duehring finished preparing and submitting her bi-weekly time
for the prior pay period. Although, Duehring had originally claimed five hours of overtime
23, Duehring crossed off the five hours of overtime she had claimed for March 23 and
hours in non-paid status for March 23 prior to handing in her bi-weekly time record for the
ending March 30, 2002. Duehring stated she did this because she knew Van Gompel
denied Goode's overtime request. Van Gompel signed Duehring's bi-weekly time record for
period because Goode was on vacation. 3/
3/ Normally, the employees' bi-weekly time
records are signed by their Department Head Supervisors, not the
It should be noted that Duehring did not file a grievance regarding Van Gompel's
denial of overtime
for her work on Saturday, March 23, 2002. Duehring admitted herein that she was aware
Gompel had to approve overtime in advance of its being worked due to Van Gompel's denial
overtime for March 23rd and she admitted that as of March
23rd, she knew that her Department Head
no longer had the authority to approve overtime.
On March 28, 2002, at 3:35 p.m., Duehring sent the following request directly to
for overtime work the evening of March 28, as well as the following Saturday morning.
sent this e-mail directly to Van Gompel because her immediate supervisor, Department Head
was on vacation at the time. The e-mail read in relevant part as follows:
. . .
I am continuing to work on minutes and
will need the rest of the day to do so. Our summer
program flier is due to our graphics art person by first thing Monday morning, timesheets
are due by
10:00 am Monday, and 3 deposits need to be completed. There are many more tasks at
hand, but this
is what I find
necessary to complete. Due to the holiday tomorrow, I need
extra time to complete these tasks
and since Ginny is out of town, I am requesting extra time. I am able to stay after hours
come in on Saturday morning.
. . .
On Thursday, March 28, 2002, at 5:29 p.m., Van Gompel
responded to the Duehring's e-mail of that
same day, as follows:
. . .
In light of Ginny being on vacation, I will authorize overtime
use/pay up to 8 hours. This is not
to be viewed as a permanent authorization of overtime. As I stated to both you and earlier in
to Ginny, the use and pay of overtime must have prior approval by me. I will be discussing
issues with Ginny when she returns from vacation.
It is undisputed that Van Gompel never disciplined Department Head Goode for her
to follow his instructions contained in his February 18th memo and in his
later e-mails to Goode,
regarding the authorization and use of overtime. Van Gompel stated herein that he merely
Goode regarding the matter during her evaluation.
On April 10, 2002, at 4:39 p.m., Department Head Goode sent Van Gompel the
memo requesting that Duehring be allowed to work overtime on April 10 and
. . .
I am requesting overtime hours for Peg
Duehring for the following dates:
Wednesday, April 10 Continue
Preparation of Softball League
Materials and Begin
4th of July Committee Minutes (2 Hours)
Thursday, April 11 Issuance of
Softball League Materials and
Assistance at Softball Managers'
Meeting (2 Hours)
Please confirm. Thank you.
Duehring stated that Goode asked her to work extra hours prior to sending the
e-mail and that she had agreed to do so. At the time Goode sent the e-mail to Van Gompel,
was unaware that Van Gompel had already left the office for a conference
out of the office and would not return until April 15, 2002. 4/ Duehring did not
from Van Gompel before she worked the extra hours listed above on April 10 and 11, 2002.
4/ The Village submitted Van Gompel's
calendar from his palm pilot which failed to indicate that he would
be absent on the afternoon of April 10, but did show his attendance at a conference in
Wisconsin Dells on Thursday,
April 11 and Friday, April 12, 2002.
On or about April 13, 2002, Duehring prepared and submitted her bi-weekly time
Department Head Goode and Goode signed it. On that document, Duehring claimed two
overtime pay for April 10 and two hours of overtime pay for April 11. 5/
5/ On this record, it shows that Duehring
claimed and received overtime pay for two and one-half hours
worked on April 3, and two and one-half hours worked on April 6. No documents were
placed in the record
regarding whether Van Gompel approved the five hours of overtime that Duehring worked
on April 3 and April 6.
After Van Gompel received this bi-weekly time record, he denied Duehring's request
(approved by Goode) for the four hours of overtime pay for April 10 and 11, noting on the
time record that those hours should be paid as comp time. Van Gompel failed to otherwise
either Goode or Duehring that he had changed Duehring's bi-weekly time record after its
Duehring found out Van Gompel had denied her overtime for April 10 and 11 when she
paycheck on April 15th.
Van Gompel admitted herein that he was unaware whether Goode had had a staff
with her employees to explain the changed Village policy regarding overtime authorization
following his February 18, 2002 memo. Van Gompel stated that the contract does not
verbiage allowing the Village to deny overtime for financial reasons and that Duehring had
contractual responsibility to go over her supervisor's head and ask Van Gompel directly for
for overtime pay. Van Gompel stated that it was Goode's responsibility to get approval in
from him for Duehring's overtime work. Duehring stated that she grieved Van Gompel's
overtime pay for April 10 and 11 because the request for overtime was timely made and
Gompel had had plenty of time to review it and rule upon it in advance, yet he failed to do
6/ Union Steward Deborah Gerth testified
herein that she processed Duehring's grievance with Department
Head Goode, per the contract, and that Goode told her that she (Goode) had been unaware
that Van Gompel had
changed Duehring's overtime hours on her bi-weekly time record for the pay
period ending April 13, 2002, as Van Gompel
had never talked to Goode about it or indicated that he had
denied those overtime hours prior to Duehring receiving her paycheck. Gerth also stated that
contrary to the
requirements of Article VI, Grievance Procedure, Section 1, (b), the Village
Manager never met with Duehring and
Gerth in an attempt to discuss and settle the grievance.
POSITIONS OF THE PARTIES
The Union argued that the contract language is clear on its face, that it must be
written and the Arbitrator must give the contractual words their ordinary meaning as a
was not clearly expressed by the parties. Therefore, in the Union's view, no arbitral
of the contract language in dispute in this case is necessary. Thus, Union urged that the
violated the labor agreement when it unilaterally turned the Grievant's overtime into
time. Indeed, the Employer has inappropriately attempted to read into the contract provision
Article IX, Section 12 Compensation Time, the provisions of Article
XII, Section 8, which are not
in dispute in this case.
Here, the Grievant, Peg Duehring, had the right to "elect to earn" comp time or
pursuant to Section 12 of Article IX. In the Union's view, Section 8 of Article IX cited by
Employer does not demonstrate that the employee must get the Village Manager's approval
overtime in advance, only that the Village Manager "must receive the approval for overtime
employee's supervisor." Although the Village Manager told Department Heads that he alone
authorize overtime after January 1, 2002, there was no evidence that Duehring received this
or knew of it at that time.
In the instant case, Duehring's department head, Ginny Goode, told Duehring she
to work extra hours during the week ending April 13, 2002. Duehring agreed to work extra
and after she had done so, she marked her time sheet with her election to receive overtime.
thus reasonably expected to receive overtime, based on her past 13 years of work with the
given the fact that Goode approved her time sheet. To claim that the employee could be
election to be paid overtime because the contract also requires approval of overtime before it
in the Union's view, is to charge the employee with the supervisor's duty. The Department
Supervisor is the one who is responsible to get prior approval for overtime, not the
the Union argued that Duehring should not be penalized for her supervisor's failure to follow
The fact that Duehring once asked the Village Manager for overtime approval when
supervisor was out of town, in the Union's view, does not demonstrate that Duehring had
any on-going duty to assure that she had gained approval for her election of overtime
thereafter. In all the
circumstances, the Union asserted that it would be inequitable to penalize Duehring
because her department head failed to follow the Village Manager's directions to
regarding the approval of overtime. The Union also contended that the Village should not be
to argue that the appropriate contract provision, Section 12, is ambiguous by suggesting that
8 must be read into Section 12. Therefore, the Union sought an award that the Village pay
the appropriate number of hours of overtime plus interest and that the Arbitrator issue a
desist order for future activity.
The Village urged that Article IX, Section 8, requires that overtime "must be
advance" by the Village Manager or his designee. In this case, the Village Manager's memo
February 18, 2002, clearly revoked his prior delegation to Department Head Supervisors to
overtime. It is also clear that on February 20, 2002, Department Head Goode sent an
e-mail to the
Village Manager acknowledging her awareness of the Village Manager's February
18th memo and its
meaning. In addition, the Village noted that on Friday, March 22, 2002, at 5:03 p.m.,
Head Goode requested overtime authorization for Duehring to work the next day, Saturday,
23rd. As the Village Manager was not at work to pre-approve the
overtime, he denied it upon his
return to the Village office on March 25th. Goode then informed
Duehring that her overtime for
March 23rd had been denied and Duehring then changed her own time sheet
to reflect that the hours
she worked on Saturday, March 23rd should be non-paid.
The Village urged that the above facts as well as the fact that Duehring did not grieve
Village Manager's denial of overtime for her work on March 23rd
showed that Duehring had no right
to rely upon any prior "practice" whereby Goode had authorized overtime payments. In
Village noted that on March 28, 2002, Duehring requested overtime approval directly from
Village Manager, two days before she was to work the overtime, in the absence of her
In his e-mail okaying the overtime, the Village Manager made it clear to Duehring that his
authorization of Duehring's overtime was "not to be viewed as permanent authorization . . .
." It is
in this context that Goode's request of the Village Manager for Duehring to work overtime
10 and 11, sending an e-mail to the Village Manager on April 10th at
4:39 p.m. requesting same, must
The Village argued that the contract language is clear and unambiguous and that
Section 8, which controls the instant case, clearly states that overtime must be approved in
by the Village Manager or his designee. The Village noted that Duehring knew that the
Manager had changed the Village policy regarding the authorization of overtime when she
overtime for her work on March 22nd. In addition, the Village urged that
employees may only elect
to receive compensatory time if they have received prior approval to work overtime under
Section 12. In this regard, the Village noted that Article IX, Section 12, states that the
must be "entitled to overtime pay" before the employee can elect to receive compensatory
than overtime. Thus, acceptance of
the Union's arguments herein would abrogate the condition precedent (prior
overtime) which alone can trigger the employer's right to elect to receive compensatory time.
Furthermore, the Village noted that where a labor agreement requires pre-approval of
overtime, failure to comply with the need to receive prior approval can be grounds for
the employee. In this regard, the Village cited City of Duluth, 113 LA 1153 (Neigh, 2002).
the Village urged that the contract language and past practice would have allowed the Village
Manager to discipline Duehring for her failure to receive prior approval for overtime or deny
payment for the time worked. Despite this fact, the Village Manager did not discipline
deny her payment but treated her fairly and paid her by granting her some compensatory
some overtime. In all the circumstances of this case, Duehring was not entitled to rely on
approval of her overtime work on April 10 and 11.
In addition, the Village Manager's approval of compensatory time, in this case four
does not entitle Duehring to elect to take any portion of it as overtime. Here, under the
agreement, Duehring could only elect compensatory time if overtime had already been
advance. This did not happen in this case. Therefore, Duehring is not entitled to elect to
portion of the compensatory time granted her for April 10 and 11 to overtime pay.
Further evidence in support of the Village's claims can be found in Section 12 of
which states "compensatory time shall be granted in the same way as overtime pay." Thus,
Village contended that prior approval must be given by the Village Manager or his designee
thereafter may the employee make the one-way choice or election to convert authorized
compensatory time. The Village noted that the overtime Duehring worked on April 10 and
like the overtime she worked on March 23rd, when the Village
Manager denied her overtime request.
There, Duehring conceded that the time she worked should be unpaid and she failed to grieve
situation. By failing to grieve the March 25th denial of overtime by
the Village Manager, Duehring
and the Union acknowledged the Village Manager's discretion to deny same and this put
on clear notice that any future attempts by her to bootstrap unauthorized extra work time into
overtime pay would be denied. As Duehring's attempts to distinguish the April 10 and 11
from the time she worked on March 23rd are not persuasive. The Village
therefore urged that the
grievance be denied.
The Union noted that the responsibility to gain prior approval for overtime pay was
Duehring's supervisor's responsibility and Goode's failure to gain such prior approval for
work on April 10 and 11, 2002, did not give the Village the right to violate the
contract. Although the Village argued that the central issue in this case is whether
Duehring had the
Village Manager's prior approval to work overtime on April 10 and 11, this is a
misstatement of the
issue, in the Union's view. Rather, the central issue in this case is whether the Village
contract by changing Duehring's election to be paid overtime after her supervisor had
overtime. Although the Union admitted that Duehring had been told by the Village Manager
April 10 that she needed to gain prior approval for overtime, the Union noted that Duehring
received a copy of the Village Manager's memo to Village Supervisors and that she was
specifically instructed by the Village Manager to get advance approval for overtime.
The Union argued that the cases cited by the Village were not on point. Regarding
Duluth, supra, the Union noted that the employee involved in that case had two supervisors
Duehring only had one. In addition, Duehring is only required to gain approval of overtime
her supervisor. Duehring had the right to assume that Goode had received Van Gompel's
In the University of Illinois, supra, cited by the Village, the employee repeatedly punched in
or stayed late without any approval from management. Here, Duehring understood that she
have advance approval to work overtime and she received this from her supervisor who was
responsible to get approval from the Village Manager. Had Duehring gone over Supervisor
head to get the Village Manager's advance approval, this could have constituted
Although the Union admitted that the Village Manager had the right to approve or
overtime requests, the Union distinguished the Village Manager's denial of overtime pay to
for work she performed on March 23, 2002, on its facts from his denial of overtime pay for
Duehring performed on April 10 and 11. In the former case, Duehring had not handed in
sheet on which she had elected overtime before the overtime was denied by the Village
Therefore, Duehring did not believe, based on the facts of the
March 23rd situation, that she had a
grievable case. In the latter case, Duehring was following her supervisor's request and okay
extra hours. In addition, the Union urged that the Village's argument that Duehring could
disciplined for working overtime and denied comp time for the extra time she worked was a
argument. On this point, the Union noted that the law does not allow for such an outcome.
The Union sought that the grievance be sustained, that Duehring be made whole by
of overtime pay to her for the hours that the Village Manager credited her with compensatory
and that a cease and desist order for the future issued against the Village.
The Village argued that the Union's arguments focused too narrowly on the phrase in
IX, Section 12, "may elect to earn," ignoring the rest of that Section. In this regard, the
that the Union's construction of the contract renders the rest of Sections 8
and 12 of Article IX meaningless. As such, the Union's interpretation of the language
in this case is
improper under well-accepted rules of contract construction. In addition, the Union's
of the contract fails to give proper weight to the word "entitled" in Article IX, Section 8 --
the Village argues means to furnish with a right or claim.
Article IX, Section 8, details how employees become entitled to overtime. Thus,
Section 8, requires that employees work 8 hours per day and more than 40 hours per week
they work on a Saturday or Sunday and that they have approval in advance to work overtime
the Village Manager or his/her designee. Thus, the Union's argument in this case
the Village as reading Section 8 into Section 12. Rather, the Village arguments herein are in
with appropriate arbitral construction and interpretation, that one must read the contract as a
and not isolate parts of the contract, that where there is a condition precedent in a contract
(that must be met before another contract clause can be satisfied) these two clauses must be
together. Thus, the condition precedent in Section 8, is whether the employee has received
approval from the Village Manager or his designee to work overtime prior to the working of
extra time and this condition must be satisfied before the employee is entitled to elect to
compensatory time in lieu of overtime pay. Here, Duehring had no right to elect overtime
because she never received advance approval to work overtime from the Village Manager or
designee. As the election in Section 12 is only from approved overtime to compensatory
time if the
employee is otherwise entitled to overtime, Duehring had no right to make any election in
The Village argued that the Village Manager had the sole authority to designate or
designation of an Article IX, Section 8, "designee" pursuant to Article XVII, Section 4, and
management rights. Therefore, the Village Manager's February 18, 2002 memo to
Supervisors clearly revoked their authority, which he had granted in the past, to act as his
for purposes of granting overtime pay. The Village noted that both Goode and Duehring
understood the meaning of the language contained in the Village Manager's February
18th memo as
demonstrated by their subsequent e-mails and their actions.
Thus, the Union's assertion that Duehring did not know of the need for advance
the consequences of a failure to gain same is not supported by the evidence. In this regard,
Village noted that Duehring knew at least by March 25, 2002, when the Village Manager
Duehring overtime pay for her extra work done March 23rd, that
Supervisor Goode no longer had the
right to grant overtime pay and that the Village Manager had the sole right and authority to
overtime pay in advance of the work being done. In addition, the Village noted that
admitted that she had a conversation with the Village Manager in which he confirmed that he
sole authority capable of granting overtime in the Village and that this was also confirmed to
Duehring through the Village Manager's e-mail to her. In addition, the Village found it
that Duehring never grieved the denial of overtime pay for her work done on March
Thus, in the Village's view, Duehring had an obligation to determine if overtime pay
be authorized before she worked extra hours given her knowledge of Village policy on and
March 25th. Indeed, common sense demanded that Duehring make sure
that Goode had gotten
advance approval for her overtime work on April 10 and 11, given the fact that Goode's
overtime of the Village Manager was made at the last minute via e-mail, as had occurred
Duehring's work on March 23rd.
Finally, the Village noted that when an employee fills out a time sheet, it is not
Thus, the Village Manager's refusal to approve overtime after the fact on Duehring's time
fully within his authority. Based on the above, the Village urged that the grievance be
dismissed in its entirety.
The initial question in this case is which section or sections of Article IX is/are
this case. In the Arbitrator's view, the facts and circumstances of this case require a
both Article IX, Sections 8 and 12, must be considered and analyzed in this case. In this
note that on the face of this dispute both compensatory time and overtime are relied upon by
parties in arguing their cases. Here, the Union has asserted that Duehring was entitled to
overtime pay for extra work she performed on April 10 and 11, 2002, while the
Village has resisted
this approach and asserted that the Village Manager had the authority to change Duehring's
pay election and grant her compensatory time, in part, for the work she performed on April
11. In addition, I note that Section 12, relied upon by the Union, refers to and describes
compensatory time may be used and granted by specific reference to overtime work and
provision of Article IX, Section 8. Thus, an analysis of both Sections 8 and 12 is necessary
A second initial question raised herein is whether Duehring knew or should have
known, prior to April 10,
that Van Gompel had rescinded his practice of delegating to Department Head Supervisors
the authority to pay
employees overtime pay for extra work performed at the Supervisor's request. 7/ The facts
herein clearly show that
Duehring's Department Head Supervisor, Ginny Goode, had received Van Gompel's
February 18, 2002 memo
regarding his new policy concerning the approval and payment of overtime. Goode's e-mail
to Van Gompel on
February 20, 2002, also demonstrated that she understood Van Gompel's memo and its
terms. In addition, it is
undisputed that Duehring knew, as early as March 25, 2002, that Van Gompel had changed
the Village past practice
regarding overtime authorization and payment, when Department Head Goode informed
Duehring that Van Gompel
had denied Goode's March 22, 2002, e-mail request that Van Gompel authorize
overtime pay for Duehring on
Saturday, March 23rd.
7/ I note that paragraphs 2 and 4 of Article
IX, Section 12, state under what circumstances a department head
supervisor has the authority to grant employees compensatory time off. These paragraphs of
Section 12, are not
relevant to this dispute.
Thereafter, Duehring also demonstrated her understanding of the changed policy
March 28, before the end of the work day, Duehring e-mailed Van Gompel and requested to
overtime pay for work she intend to do that evening. In addition, I note that
Van Gompel in his
March 28th responsive e-mail (authorizing the requested overtime pay for
Duehring) warned that his
authorization of that overtime should not be "viewed as a permanent authorization of
Van Gompel confirmed his prior statements to both Duehring and Goode that "the use and
overtime must have prior approval by me." In these circumstances, there can be no doubt
Duehring knew on or before March 28th that Van Gompel, not
Goode, had the sole authority to
authorize overtime pay and that such authorization had to be received prior to the work being
performed. This is so despite the fact that Duehring never received Van Gompel's original
18th memo to Department Head Supervisors announcing his decision to
change the Village's past
practice regarding the delegation of the right to approve overtime. 8/
8/ The lack of clarity and definition in Van
Gompel's February 18th memo is troubling but not fatal to the
Village's arguments in this case. Van Gompel wrote in his memo of minimizing the use of
overtime and limiting
it to "emergency situations" and he failed to define emergencies in the memo. However,
Van Gompel made clear
in the memo that his prior authorization for overtime would be required in all future
An analysis of Article IX, Sections 8 and 12, is appropriate at this juncture. Section
12 is a
rather typical provision which allows employees to elect to earn and use compensatory time
of taking overtime pay for extra hours they have been authorized to work. The first and
sentences of Section 12, state that comp time may be used as an alternative form of
in lieu of receiving overtime pay. The second sentence states that compensatory time "shall
granted in the same way as overtime . . . ." This second sentence then continues after a
to describe that compensatory time will be granted at the same rate as overtime is earned.
four of Section 12 then states that clerical employees "who are entitled to overtime pay may
earn and use compensatory time off in lieu of overtime pay."
The above quotations demonstrate that it is impossible to understand Section 12
referring to Section 8. In the Arbitrator's view, there would be no reason to include the
"entitled" in sentence four of Section 12, unless the parties thereby intended the reader to
to Section 8 to find the various, necessary prerequisites for overtime entitlement, including
Manager's pre-approval thereof. Therefore, the language of the effective agreement makes
overtime pay is the rule or norm, while compensatory time is the exception, requiring
take action in order to elect to receive compensatory time off instead of overtime pay. It is
that the language of Section 12, makes no reference to employees having the right to elect
pay. Contrary to the Union's assertions, the election can only go one way under Section 12
approved overtime to compensatory time, not vice versa.
Thus, the phrase in Section 12, which refers to employees "who are entitled to
requires reference back to Section 8, to determine how an employee becomes "entitled" to
And this reference back to Section 8, necessarily requires that employees have prior approval
Village Manager or his designee to be entitled to receive overtime pay for extra hours
the employee can elect to take compensatory time in lieu of overtime payment. Significantly,
that no evidence of bargaining history or past practice was proffered herein to show that the
"who are entitled to overtime" should have a different meaning than described above.
The Union argued that Goode's request of Van Gompel to grant overtime for
work on April 10th and 11th was distinguishable from the
extra work Goode requested Duehring
perform on March 23rd. In the Arbitrator's view, the facts surrounding
Van Gompel's denial of
overtime on these occasions were similar. In both instances, Duehring did not receive notice
Gompel's approval of overtime pay for her work before she worked those extra
failure to gain advance approval from Van Gompel for overtime pay on these occasions
conclusion that Duehring was not entitled to overtime pay therefor. 9/ This conclusion is
by the fact that Duehring knew from e-mails, as well as through her interaction with Goode
Gompel, that Goode could no longer approve overtime and overtime pay for her and that
Gompel's approval in advance for her overtime was required. That Duehring was fully
aware of the
new process of approval for overtime authorization and payment is also bolstered by the fact
Duehring voluntarily changed her bi-weekly time record to list the hours she worked on
as non-paid; and that Duehring failed to grieve or otherwise object to Van Gompel's denial
overtime pay for her work performed on March 23rd.
9/ I note that evidence showed that Van
Gompel's calendar was not available to either Goode or Duehring
regarding his absence from April 10 through 14 and that they were unaware of his absence
on April 10th.
The facts of this case also show that Goode requested overtime for Duehring by
e-mail to Van Gompel at 4:39 p.m. on April 10th, the day that Duehring
was to stay late and work the
overtime. Duehring never received notice either from Goode or Van Gompel that Van
approved overtime for the hours/dates Goode requested before she worked the extra hours.
her knowledge of the new Village practice concerning overtime, it was not reasonable for
to believe that Goode's request that Duehring work extra hours on April
10th and 11th would, without
more, result in her receipt of overtime pay for the extra work involved. 10/
10/ Due to factual differences, the cases cited
by the Village were instructive but not controlling in reaching
the result herein.
The final question in this case is whether Van Gompel violated the labor agreement
deciding to compensate Duehring with compensatory time for four hours of work she
April 10 and 11 without prior approval for overtime. 11/ In this case, although Van
Gompel had not
authorized Duehring to work overtime before she worked extra hours on April
10th and 11th, Van
Gompel later agreed to pay Duehring five hours of overtime pay and credit her with four
compensatory time in order to compensate her for the time she worked on April
10th and 11th. As I
have found no violation of the labor agreement in Van Gompel's treatment of Goode's
overtime to be paid to Duehring for work to be done on April 10th
and 11th, Van Gompel's voluntary
agreement, after the fact, to compensate Duehring for the extra hours she worked April
10th and 11th,
even though she failed to receive prior approval for overtime payment, did not violate the
agreement and therefore I issue the following
10/ As of April 13, 2002, Duehring had
accrued 59.52 hours of compensatory time. Paragraph 3 of Section
12, Article IX, provides that employees may only use or carry over 56 hours of
compensatory time per year and that
they must be paid at time and one-half for "any overtime work following the accumulation of
48 hours of
compensatory time." This provision is not before me in this case.
The Employer did not violate the provisions of Article IX, Section 8 of the 2001-03
when the Village Manager provided compensation to the Grievant in the form of
for work she performed on April 10 and 11, 2002, when the work had not been approved in
by the Village Manager. Therefore, the grievance is denied and dismissed in its entirety.
Dated at Oshkosh, Wisconsin, this 31st day of January, 2003.
Sharon A. Gallagher, Arbitrator