BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PUBLIC SAFETY PROFESSIONAL DISPATCHERS'
Mr. Thomas A. Bauer, Labor Consultant, Labor Association of
Wisconsin, Inc., 206 South Arlington Street, Appleton, WI 54915, on behalf of the
Mr. John A. Bodnar, Corporation Counsel, Winnebago County,
448 Algoma Boulevard, P.O. Box 2808, Oshkosh, WI 54903-2808, on behalf of the County.
Pursuant to Article 20, Grievance Procedure, of the 2001-03 collective
between Winnebago County (hereafter County) and Labor Association of Wisconsin, Inc. on
of Public Safety Professional Dispatchers' Association (hereafter Association) the parties
agreed and requested that Arbitrator Sharon A. Gallagher hear and resolve two overtime
grievances filed by Dispatcher Brian Smith. The hearing was scheduled and held at
Wisconsin, on December 12, 2002. No stenographic transcript of the proceedings was
parties agreed to submit their initial briefs directly to each other, a copy to the Arbitrator,
February 10, 2003. The parties also agreed to file reply briefs, if any, postmarked February
The Association advised by letter received on February 13, 2003, that it would not file a
herein; the County advised on March 4, 2003, that it would not file a reply brief.
record was closed on March 4, 2003.
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 stipulated to the issues to be determined herein as follows:
Did the Employer violate the terms and conditions of the
collective bargaining agreement
when it refused to allow the Grievant to work available overtime hours at the Experimental
Association Fly-In on July 23 and 24, 2002? If so, what is the appropriate remedy?
The County also stated herein that by its stipulation to the above issues, it was not
agreeing that EAA overtime was in fact available on the dates mentioned or that the County
fact refused to allow Grievant Brian Smith EAA overtime.
ARTICLE 3 MANAGEMENT RIGHTS
3.1 Except as
otherwise specifically provided herein, the management of the
Communication Center and the direction of the work force including, but not limited to, the
hire, to discipline and discharge for proper cause, to decide initial job qualifications, to lay
off for lack
of work or funds, to abolish positions, to make reasonable rules and regulations governing
and safety, to determine schedules of work, to subcontract work, together with the right to
the methods, equipment, process and manner of performing work, are vested exclusively in
contained herein shall divest the Association of any of its rights under
Wisconsin Statute 111.70.
. . .
ARTICLE 7 OVERTIME
AND COMPENSATORY TIME
7.1 Time worked
in excess of the regular workday or workweek shall be compensated for
in the form of pay or compensatory time off at the rate of time and one-half of overtime
the option of the employee, however, compensatory time may be earned for overtime hours
in excess of the normal workday but not for hours worked in excess of forty (40) hours
normal workweek. Such hours worked in excess of forty (40) hours within the normal
shall be compensated in the form of pay at the rate of time and one-half. No compensatory
may be accumulated in excess of eighty-two and five-tenths (82.5) hours per year.
7.2 Utilization of compensatory time
off by any employee shall be subject to the staffing
needs of the Employer.
7.3 - No
Compensatory Time Carry-Over. By December 31 of each year, the
but unused and unscheduled compensatory time of each employee shall be converted to pay
next payroll at the rate at which it was initially earned. There shall be no carry over of
compensatory time from year to year.
shall be in segments of not less than fifteen (15) minutes, and compensatory
time shall be in segments of thirty (30) minutes.
7.5 Minimum Call-In
Pay. Whenever an employee is required to work during scheduled off
time he/she shall be entitled to a minimum of two (2) hours of pay at time and one half, or
one-half for all actual time worked, if greater.
7.5.1 An employee
may be ordered in to work for only four (4) hours on his regularly
scheduled day off. In the event that Management determines that additional hours are
an employee may elect to work additional hours, at the employee's option.
Meetings. Whenever an employee is called in to work, or attend
meetings, during scheduled off time, he/she shall be entitled to a minimum of two (2) hours
of pay at time and one-half (1-1/2), or time and one-half for all actual time worked, if
Such call-in shall not be applicable within one (1) hour of the start of the shift, or within one
(1) hour following the shift.
OVERTIME CALL-IN PROCEDURE 1/
PURPOSE: To establish a procedure for
PROCEDURE: When a temporary
vacancy occurs on a shift and the vacancy needs to be filled, the
following procedure shall be followed.
VACANCY WITH MORE THEN 24 HOURS NOTICE.
DIC or designee shall post the vacancy and it will be available to anyone
wishing to sign for the time.
2. VACANCY WITH LESS THEN 24 HOURS NOTICE.
A. The DIC or designee shall call personnel using the "call-out" list.
Prior to calling
the DIC shall establish the "order list". The DIC will then start with the next
person on the list who did not get called the last time the list was used.
B. If the
entire list of employees has been contacted and no one accepts the offer to
fill the vacancy, then the time will be offered to any employee on duty, who is not
on the "call-out" list.
3. ORDERING IN PEOPLE.
A. If the vacancy is not filled using the above procedures, then someone
will need to
be ordered to fill the vacancy. To be "ordered-in" an employee must be on
normal time off. NO ONE shall be ordered in while on paid time
off, unless as an
absolute last resort, and all of the following procedures have been exhausted.
1. The DIC will then consult the schedule and
overtime book to determine which
employee(s) from the shift(s) adjacent to the vacancy can be ordered.
2. Using the list of people that can be ordered, the
DIC will then determine
which of the available employees has not been ordered for the longest period
of time, utilizing the "ordered-in" list, and that person shall be ordered.
3. The person who was ordered, will then have their name placed
at the bottom
of the "order-in" list.
B. If the above
procedure still fails to fill the vacancy then someone on their days off
will need to be ordered in.
1. The DIC shall
determine if there is anyone on their day off, who is working
already either on a trade or on voluntary OT, that would be available for an
order and that person shall be ordered for no more then four hours.
2. If the time is still not
filled, the DIC, utilizing the "day off order-in" list shall
order the least senior person whose name is at the top of the list. The order
shall be for four hours unless the person being ordered agrees to an eight hour
3. Any person being
ordered in shall have their name placed at the bottom of the
"day off order-in" list.
4. In the event that all
of the above procedures still fails to fill a vacancy, the
DIC shall fill the vacancy in what ever manner the DIC deems reasonable.
CONSECUTIVE HOURS WORKED
PURPOSE: To limit the number of
consecutive hours worked by an employee.
PROCEDURE: No employee shall
normally work more than 12 1/4 consecutive hours unless a
replacement is unavailable or an emergency situation exists. The sergeant or lieutenant must
be made aware of any situation causing the extension of hours beyond 12 1/4 as soon as
Any employee who has
worked 12 1/4 consecutive hours, must be off at least 7 3/4 hours,
before they can be considered available to work again unless an emergency situation exists.
1/ The parties agreed to this procedure in the
Grievant Brian Smith has been employed as a dispatcher by the Winnebago County
Department for the past eight years. It is undisputed that Smith is a qualified dispatcher who
never been disciplined and about whom no complaints have been filed. During all times
herein, Smith worked the 2:00 p.m. to 10:15 p.m. shift in the County's 911/Dispatch Center
in the County's Public Safety Building on Jackson Street in downtown Oshkosh. The Public
Building 911/Dispatch Center is staffed 24 hours per day, 7 days per week. Geoffrey
Captain of Administration whose responsibilities include managing the 911/Dispatch Center
employees. Kathy Bigger is the Communications Manager; she is responsible for the direct
supervision of dispatcher employees and the day-to-day operations of the County's
Since 1996, Lieutenant Paul Schreiber has been in charge of Special Operations and
for the Sheriff's Department. As such, part of Schreiber's responsibilities include the
employees to work at special events held in the City of Oshkosh. 2/ One such special event
every year is the Experimental Aircraft Association Convention and Air Show, also known as
EAA Fly-In which is normally held during the last week of July. During this event,
700,000 to 800,000 people, both members of the public and EAA members, come to
attend the Fly-In.
2/ The City of Oshkosh has approximately
The EAA grounds are adjacent to Winnebago County's Wittman Airport, which is
miles from the County's 911/Dispatch Center in the Public Safety Building. Part of the EAA
are located in the City of Oshkosh and part of its grounds are in the Town of Nekimi. The
EAA Fly-In operates the busiest airfield in the United States at Wittman Field during the
week before and week
of the EAA Fly-In. Between 12,000 and 14,000 flight enthusiasts fly their airplanes to
and park their planes on the grounds of the EAA, where the aviators often camp next to their
airplanes or they stay in hotels or homes in town. Because Wittman Field is so busy during
there is a very high probability of a plane crash, fire or other disaster at Wittman Field
EAA. Therefore, special procedures have been set forth by the Oshkosh Fire Department
Winnebago County Sheriff's Department to handle crashes, disasters and fires should such
the EAA during the Fly-In.
During the EAA Fly-In, the County operates a separate command/dispatch center on
grounds, which is housed in a special temporary building put up by the EAA. The County
dispatchers and dispatch equipment for this Center. Only one dispatcher works at EAA on
shift, 7:00 a.m. to 3:00 p.m. and one second shift dispatcher is assigned to work at
1:00 p.m. and 9:00 p.m., leaving a two hour overlap when two dispatchers are present
in the EAA
command/dispatch center. Dispatch duties are not performed at EAA after 9:00 p.m.
dispatchers who are assigned to work at the Fly-In have to interact regularly with FAA,
FBI employees due to the size and nature of the event. 3/
3/ County dispatchers at the 911/Dispatch
Center in Oshkosh do not have the opportunity to interact with these
Federal employees regularly.
Prior to 1999, the County regularly assigned only the following dispatchers to staff
Dispatch Center during the EAA Fly-In:
(1) 1992-1993: Hansan and Rasmussen;
(2) 1994-1998: Rasmussen and
County Managers made these assignments at EAA without regard to overtime/call-in
did not seek volunteers.
In 1999, Communications Manager Bigger sent out a memo requesting that
inform her of their interest in being assigned to work at the EAA dispatch center during the
that year. One of the employees who expressed an interest in the work was Grievant Brian
The following dispatcher employees who had expressed an interest in working at the EAA
from 1999 forward, worked the Fly-In event in the years listed below for the shifts listed
next to their
1999 Smith, 1 shift; Hafemeister, 1 shift
(the remaining 12 shifts were worked by Rasmussen and
2000 Smith, 2
shifts; Piotter, 2 shifts; Remer, 1 shift; Hafemeister, 1 shift (the remaining 8 shifts
were worked by Rasmussen and Anderson).
2001 Smith, 1 shift;
Remer, 1 shift; Hafemeister, 1 shift; Piotter, 1 shift (the remaining 10 shifts
were worked by Rasmussen and Anderson).
Anderson and Remer worked all 14 shifts.
Since 1999, Lieutenant Schreiber stated he has assigned dispatchers to work at the
EAA Fly-In from a list of those interested in the work collected each year by Manager
Bigger. 4/ Schreiber
stated herein that he has always selected employees to work at the Fly-In based on their prior
experience working at EAA and based on which employees he (Schreiber) feels would be a
of his team on the EAA grounds. Schreiber stated that he wants dispatchers at EAA who are
comfortable staffing the EAA command/dispatch center alone, dispatchers that he can rely
whose work he is aware of and who need no training and are aware of the geography of the
4/ Bigger also sends out interest memos
seeking dispatchers to work at other special events in the City: Country
USA, the County Fair and Ducks Unlimited.
During the Fly-In, 911 calls automatically go to the County 911/Dispatch Center at
Safety Building in downtown Oshkosh, but all other emergency calls on EAA grounds go
the EAA dispatch center from telephones on the EAA grounds. (Information sheets posted
EAA grounds list the EAA dispatch center as the emergency number.)
The County submitted uncontradicted evidence that in 1997, Dispatchers Anderson
Rasmussen worked on their regular off days while they were assigned to the EAA and
worked two overtime shifts each at EAA while assigned to that event. In 1998, Rasmussen
Anderson again worked their regular off days while assigned to the EAA, for a total of five
shifts between them. In 1999-2001, no overtime shifts were worked at the EAA by those
to work the Fly-In or by any other dispatchers. The overtime hours worked at EAA in 1997
1998 were not posted as overtime and the Association did not file any grievances regarding
There was no additional training that was necessary to be conducted by the Oshkosh
Department prior to the 2002 EAA Fly-In as no changes in procedures from prior years were
expected in 2002. Brian Smith had previously been trained to work at EAA when he did so
2000 and 2001. Smith is qualified to dispatch at EAA. Bigger stated that Smith's work as
dispatcher in the past was good.
On July 23 and 24, 2002, Smith was on his regular off days and would have been
to work the overtime shifts that were worked by Dispatchers Remer and Hafemeister during
assignment to EAA, as both overtime shifts were between 1:00 p.m. and 9:00 p.m. 5/
undisputed that there were between one and five hours of overtime at the Public Safety
created by vacation selections and sick leave as well as the need to staff for Remer,
Anderson's regular positions while they worked at the EAA Fly-In. However, the Grievant
sign for any of these overtime opportunities.
5/ Both Remer and Hafemeister were on their
regular off days when they worked this overtime at EAA during
their assignment thereto.
The Association filed two grievances on behalf of Brian Smith 6/ which formed the
this case. On September 11, 2002, the County Director of Personnel, William Wagner, sent
Association following Step 3 answer to Smith's grievances as follows:
. . .
This letter constitutes my response at Step 3 to the two
grievances cited above. It appears
that both grievances are part of a class action grievance, that started with grievances
A/2002-34, regarding the assignment of overtime by work location. It is my understanding
overtime work during the EAA convention was made available to all represented personnel
work location assignments were determined by Management.
There is no contractual provision that
indicates that work locations are to be posted and there
is an existing past practice that provides for Management to determine work locations of
As such, no contractual violation has occurred and the grievances are therefore denied.
. . .
6/ The Association also filed other grievances
regarding alleged overtime vacancies. However, the parties
stipulated that the Brian Smith grievances would stand for the other grievances in terms of a
but that only Brian Smith would receive a monetary remedy, if the Association
The County has another annual special event, known as Ducks Unlimited (DU),
on three days in the middle of August each year. It is also held at the EAA grounds. DU
between 70,000 and 75,000 participants. Several months before the event,
Manager Bigger normally sends out a memo requesting those who might be interested
in working at
DU to identify themselves. All hours are then posted and any dispatcher who wishes to
Ducks Unlimited can sign for those hours (pursuant to the Department's overtime/call-in
for the ten shifts (one dispatcher per shift) which occur across the three days of the DU
During DU, dispatch hours are conducted on the EAA grounds in the same temporary
for the Fly-In, using County equipment and dispatchers, from approximately 9:00 a.m.
to 9:00 p.m.
on each day of the event. Lieutenant Schreiber selects dispatchers and the patrol officers
the regular shifts at the DU event. Schreiber and another County Patrol officer generally
grounds during the DU event, and six or seven patrol officers are normally assigned to
coming into and out of the EAA grounds during DU.
In 2002, the Department posted the following notice in mid-July regarding DU event
. . .
The following are times available to sign for
overtime to work for the Ducks Unlimited Event.
They are mostly 4-hr blocks but these are the hrs. that Lt. Schreiber would like covered. I
to break them up fairly. You can sign for this like you sign for regular OT but you cannot
the time in the book and for and DU too. Same rule applies that you can sign for a block
wait 3 days to sign again. You MUST also sign in the book if/when you take
DU time and please put
"DU" after the time signed for.
**Please note there is 1-3 hr. block and the
last block of time could be extended depending on
how things go (You may be done sooner than 4 hours and you may be there a little long [sic]
4 hrs. . . .
All dispatchers were allowed to sign for these hours based upon the County's Overtime
Procedure. Dispatchers who signed up then received the hours they had requested.
POSITIONS OF THE PARTIES
The Association argued that the Overtime Call-In Procedure was established by the
to fill all available overtime. In this regard, the Association noted that all vacancies with
24 hours notice should be posted under the labor agreement and the Overtime Call-In
Since the dispatcher work at the EAA Fly-In was published in a memo dated May 31, 2002,
than 24 hours ahead) and because the contract makes no distinction
between overtime at the 911/Dispatch Center in downtown Oshkosh and the
center set up at the EAA Fly-In, this work should have been posted according to the
The Association argued that the available overtime hours at the EAA Fly-In were, in
"overtime" as defined in the labor agreement. On this point, the Association argued that the
the overtime work at the EAA was listed in the overtime-call back book as such means that
was in fact available overtime. Furthermore, the fact that there is no separate
in the contract for EAA dispatcher; that the duties at the EAA Fly-In are identical to those
at the 911/Dispatch Center; and that there are no specific qualifications for work at the EAA,
a conclusion that overtime during the EAA Fly-In at Wittman Field should be considered
overtime work. Thus, the EAA Fly-In overtime work should have been posted pursuant to
6 of the labor agreement and because the County failed to post this overtime, it violated the
Grievant Brian Smith had the qualifications and the experience working at the EAA
and should have been selected for the overtime work. The Association noted that Smith had
more hours at the EAA Fly-In from 1999 through 2001 than Hafemeister and Remer.
Association argued that the Grievant was more qualified to perform the overtime work at the
than dispatchers selected to work the Fly-In. The County failed to refute the Grievant's
he had the qualifications to work at the Fly-In and is familiar with the equipment and
The Association argued that the Grievant was unfairly denied the opportunity to post
receive the EAA Fly-In overtime. The Grievant responded to a request from Management
volunteers to work at the EAA in 2002. However, the Grievant was later told that he could
at the Fly-In. When the Grievant asked for details regarding problems with his work, the
failed to give him details.
Therefore, the Association argued that Brian Smith should receive four hours of
each day for July 23 and July 24, for hours he should have worked at the EAA Fly-In; that
Association should be granted "costs and fees" incurred in pursuing the instant grievance
Employer's actions were arbitrary and capricious; and the Arbitrator should issue a cease and
The County argued that it retains the right to determine assignments to specific jobs
Sheriff's Department. The County noted in this regard that Section 3.1 of the contract states
County can determine schedules of work and that it controls the methods, equipment, process
manner of performing work, and that it has the right to make reasonable rules and
governing conduct and safety in the Sheriff Department. In
addition, Article 8.1 of the contract states that the County can promulgate reasonable
rules. In this
context, the County urged that the assignment of dispatchers to the EAA Fly-In is a recurring
temporary annual assignment which is not addressed by the labor agreement nor does the
restrict the County's right to choose dispatchers for work at the event.
The County contended that the method of assigning dispatchers to the temporary
work is a long-standing past practice which has been recognized by the both the Association
County to be extra-contractual. In this regard, the County noted that at the time it
Overtime Call-In Procedure in the 2000, there was then a long-standing past practice of
specific dispatchers to the EAA post (from at least 1993 through the year 2000). It is also
on this record, that employees assigned to work at the EAA Fly-In did so in lieu of their
assignments at the County's 911/Dispatch Center in downtown Oshkosh, such that they did
receive additional overtime.
The County noted that there was no evidence that the County had been arbitrary in
employees to work at the EAA Fly-In or that these employees unfairly received more
other employees because of their EAA assignment. Rather, the County noted that Lieutenant
Schreiber stated the rationale for assigning certain employees to the EAA Fly-In and that this
rationale was reasonable that experience as a dispatcher, experience working at the
familiarity with EAA grounds and Wittman Field were important in Schreiber's decision who
assign to the EAA Fly-In each year. The County pointed out that there was no evidence that
County had deviated from its normal procedures in assigning overtime at the 911/Dispatch
Rather, assignment of overtime in the 911/Dispatch Center remained the same as always
the contract and the Overtime Call-In Procedure.
Notably, the overtime at the EAA Fly-In for those assigned to work the Fly-In was
incidental to that work. Thus, the County argued that the EAA Fly-In dispatch work was
annual and a long-time deviation from the normal practices of the parties; that the
of this deviation and condoned it and that no grievances had been filed prior to the instant
Finally, the County noted that the Ducks Unlimited event was treated like all other overtime
opportunities under the contract and the Overtime Call-In Procedure, making the EAA Fly-In
exception to the rule.
In the County's view, the issue here is whether overtime work was unjustly denied to
Grievant. The County urged that the answer to this question should be no and that the
should be found to be without merit. The Grievant had opportunities to work overtime in the
911/Dispatch Center but he failed to take advantage of any of these opportunities on July
24th. Here, the County urged that the evidence showed that Smith could
have signed for regular
overtime hours on July 23rd and 24th but simply decided
not to do so.
Even if the Arbitrator sustains the grievance, the County urged the Arbitrator that no
monetary remedy should be due the Grievant because the County had not intended to violate
agreement and because overtime was otherwise available to Smith and he failed to take
of those opportunities to post for that other overtime work. In all the circumstances, the
urged the Arbitrator to deny and dismiss the grievance.
Initially, I note that in Article 3 Management Rights, the parties
agreed that the County
should retain the exclusive right ". . . to determine schedules of work . . . together with the
determine the methods, equipment, process and manner of performing work. . .
." This is general
language which does not address special events or work locations. In addition, I note that
agreement (including Article 7 Overtime and Compensatory Time) is
silent regarding special events
such as the EAA Fly-In and silent regarding how dispatchers are to be selected to work at
special events. Also, neither the Association nor the County proffered any evidence
bargaining history surrounding the Overtime Call-In Procedure to show the parties' specific
concerning the applicability of the Procedure to special events. Furthermore, the Overtime
Procedure (which was mutually agreed upon by the parties in 2000) contains broad language
applies to all temporary vacancies on a shift, distinguishes between shift vacancies only on
of the amount of advance notice (more than 24 hours notice or less than 24 hours notice) and
provides that for the former, such vacancies should be posted and "will be available to any
wishing to sign for the time."
Although the County attempted to distinguish opportunities for overtime at the EAA
from other regular and special event overtime, the facts simply do not support such a
broad definition of overtime contained in the labor agreement, as well as the unrestricted
of the Overtime Call-In Procedure, necessarily require a conclusion that hours worked by
dispatchers on their regular off days, which are by definition beyond their regular work day
week, should be considered overtime subject to the Overtime Call-In Procedure.
record is undisputed herein that any dispatcher can sign for overtime available at the DU,
Fair, and County USA special events and that signers can then expect to receive the overtime
they have signed for without regard to their seniority.
The work time on July 23 and 24, 2002, which Grievant Brian Smith requested
constituted "overtime" under Article 7 of the labor agreement. Thus, the fact that overtime
by dispatchers assigned to work their regular shifts at the EAA Fly-In was "incidental" to
assignment and that the dispatchers assigned to EAA were not eligible for greater overtime
other dispatchers are facts which have no relevance under the language of the labor
agreement or the
language of the Overtime Call-In Procedure. I note that the overtime worked by Remer and
Hafemeister during the EAA was listed in the Overtime/Call-In Book, as is all overtime.
The County has argued that a long-standing past practice existed from the early 1990s
that overtime available at the EAA Fly-In was exempt from the normal process whereby any
dispatcher could sign for available hours of overtime and receive them based on their
However, the parties' mutual agreement to codify their Overtime Call-In Procedure in the
renders the County's evidence regarding what occurred from 1992 through the year 2001
In this regard, I note that there were no overtime opportunities at the EAA Fly-In during the
1999 through 2001, although there had been overtime given to dispatchers assigned to work
regular shifts at EAA during the years 1997 and 1998. Thus, there was no evidence of
condonation of or acquiescence in an alleged past practice after 1998. In the absence of
history evidence to the contrary, the parties' agreement to the broad language of the
Procedure in the year 2000 nullified the alleged past practice of allowing dispatchers assigned
at the EAA Fly-In to also work all overtime at the EAA during that assignment.
The County also argued that the Grievant was not unjustly denied overtime and that
essentially turned down other opportunities to work overtime at the County's 911/Dispatch
such that he should be denied a remedy herein. In addition, the County argued that it lacked
intent to violate the contract by its treatment of Smith and therefore Smith should not receive
a make-whole remedy herein. Regarding the former point, it is unnecessary under the
Call-In Procedure for an employee to sign for every overtime opening on a date on which the
employee wishes to work overtime. Rather, the employee need only sign for the opening
desires to take and if no one else has signed for it, the employee will receive it, pursuant to
Overtime Call-In Procedure. As Smith was not allowed to sign for the overtime
available at the EAA Fly-In, he had no alternative but to file the instant grievance to pursue
7/ Regarding the latter point, intent to violate the contract and/or the Overtime Call-In
is not a necessary prerequisite for a make-whole remedy under the relevant language.
7/ The County argued that Article 8.1 of the
contract which allows the County to promulgate reasonable rules
provides support for its position. I find no support in Article 8.1 for the County's position
as there was no evidence
proffered herein that the County ever promulgated any rules regarding special events or work
As the above analysis makes clear, I have found that the language contained in the
agreement, as well as that of the mutually agreed upon Overtime Call-In Procedure, is clear
unambiguous. The County's argument that the EAA Fly-In is a special event unlike other
events in Oshkosh by size, nature and potential danger, is insufficient to overcome the clear
of the contract and the Overtime Call-In Procedure which are by their terms applicable to
events such as the EAA Fly-In. I note, in accord with the Association's arguments, that
there is no
separate classification in the labor agreement for EAA dispatchers, that the dispatchers at
perform the same duties as dispatchers employed at the
911/Dispatch Center in downtown Oshkosh and that there are no real separate
qualifications for work
at the EAA Fly-In except that dispatchers must be properly trained by the Oshkosh Fire
and willing to work the Fly-In. Significantly, on all occasions when such training was given,
was properly trained for work at the EAA Fly-In.
Finally, I note that Smith responded to Communication Manager Bigger's 2002
for the EAA Fly-In work. He was willing to work at the Fly-In in 2002. There was no
Smith was not qualified to work at the EAA Fly-In as he had worked several shifts at the
1999 through 2001, indeed more shifts than had Hafemeister and Remer, who were two of
dispatchers selected to work the EAA Fly-In in 2002.
In all the circumstances of this case, I find that the County violated the labor
the mutually agreed upon Overtime Call-In Procedure and I issue the following
The County violated the terms and condition of the collective bargaining agreement
refused to allow Grievant Brian Smith to work overtime hours at the Experimental Aircraft
Association Fly-In on July 23 and 24, 2002. Therefore, the County is ordered to pay Smith
hours of overtime (four hours per day) at his overtime rate as of July 23, 2002. 8/
8/ The Association requested costs and fees in
this case for pursing the instant grievance because the County's
actions were arbitrary and capricious. In this regard, I note that the contract at Article 20.4
states that "the costs
of the arbitrator and transcript if any shall be shared equally by the parties. Any other
incurred by the respective party shall be paid by the party incurring the costs." This
language effectively precludes
any order of costs and fees to the Association. Therefore, I deny the Association's request.
The Association also
requested a cease and desist order herein. In my view, the above AWARD
Dated at Oshkosh, Wisconsin, this 14th day of April, 2003.
Sharon A. Gallagher, Arbitrator