BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
ENFORCEMENT EMPLOYEE RELATIONS
Ms. Melissa M. Thiel Collar, Staff Attorney,
WPPA/LEER Division, 340 Coyier Lane, Madison,
Wisconsin 53713, appearing on behalf of the Wisconsin Professional Police Association/Law
Enforcement Employee Relations Division, referred to below as the Union, or as the
Mr. James R. Macy, Davis & Kuelthau, S.C.,
Attorneys at Law, 219 Washington Avenue, P.O. Box
1278, Oshkosh, Wisconsin 54903-1278, appearing on behalf of Outagamie County, referred
as the County or as the Employer.
The Association and the County are parties to a collective bargaining agreement that
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The Association and the County jointly requested the Wisconsin
Relations Commission to appoint Richard B. McLaughlin, a member of its staff, to serve as
to resolve Grievance Number 02-325, filed on behalf of the Association. Hearing was held
December 17, 2002, in Appleton, Wisconsin. Lee F. Behnke filed a transcript of the hearing
Commission on January 10, 2003. The parties filed briefs and reply briefs by March 14,
The parties were unable to stipulate the issues for decision. I have determined the
poses the following issues:
Did the County violate the Agreement by maintaining Natalie
Wilson as a Telecommunicator
from the cessation of her active training in Step 3 until her transfer to the position of Cook
September 1, 2002?
If so, what is the appropriate remedy?
ARTICLE I - MANAGEMENT
1.01 - Except as herein
otherwise provided, the management of the work, and the direction
of the work forces, including the right to hire, promote, transfer, demote, or suspend or
otherwise discipline for proper cause, and the right to relieve employees from duty or to
employees is vested exclusively in the Employer, Outagamie County. In keeping with the
Employer, Outagamie County, shall adopt and publish reasonable rules which may be
amended from time to time. The County and the Union will cooperate in the enforcement
. . .
ARTICLE IV - RULES AND REGULATIONS
4.01 - The rules and
regulations of the Outagamie County Sheriff's Department as established
by the County in accordance with the provisions of and pursuant to Chapter 111.70 of the
Statutes shall be made a part of this Agreement by reference. The Union shall be given
days notice on any new rule or regulation proposed before it becomes effective.
. . .
ARTICLE VII - GRIEVANCE PROCEDURE
7.02 - Only matters involving
the interpretation, application or enforcement of this Agreement
which may arise between . . . the County and the Union shall constitute a grievance . . . The
grievance shall include a
listing of the section violated, the details of
the violation and the remedy requested. If these items
are not listed, the grievance will be returned for the items to be included. . . .
Step 4. . . . In rendering
his/her decision, the arbitrator shall neither add to, detract from nor
modify any of the provisions of the Agreement. . . .
ARTICLE VIII - HOURS
8.01 - Work
A. The normal work week for full-time
employees classified as Telecommunicator,
Correctional Officer, Utility Correctional Officer, Head Cook, Cook, Jail Clerk and Utility
will be 5 on -2 off, 5 on - 3 off, and the normal work day for such employees shall consist
of an eight
and one-third (8.33) hour shift.
. . .
ARTICLE IX - OVERTIME
9.01 - Employees will be
compensated at the rate of time and one-half (1-1/2) based on their
normal rate of pay for all hours worked in excess of their scheduled workday or workweek .
9.02 - In the event an
employee has left work and is called in, the employee shall receive a
minimum of three (3) hours pay at the employee's regular straight time rate of pay or
at the appropriate rate for the actual hours worked, whichever is greater, provided, however,
provision shall not apply to hours worked that are consecutively prior to or subsequent to the
employee's scheduled work hours.
9.03 - Overtime must be
authorized and approved by the department head or division head
before overtime can be paid.
. . .
ARTICLE XXII - SALARIES
22.01 - The salary schedule
as set forth in Appendix "A", which is attached hereto and
incorporated herein, shall be effective for the period of this Agreement. . . .
ARTICLE XXXI- AMENDMENT
31.01 - This Agreement is
subject to amendment, alteration or addition only by a subsequent
written agreement between and executed by the County and the Union where mutually
The waiver of any breach, term or condition of this Agreement by either party shall not
precedent in the future enforcement of all its terms and conditions.
ARTICLE XXXIV - CONDITIONS
34.01 - This Agreement
constitutes an entire agreement between the parties and no verbal
statement shall supersede any of its provisions.
The County operates a dispatching center (Center) for Outagamie County and a
Fox Valley municipalities, including Appleton. The Center is part of its Sheriff's
Gehring has served as Outagamie County Sheriff since January of 1991.
The County has authorized twenty-five full-time equivalent positions of
to staff the Center. The position description for Telecommunicator summarizes its "normal"
and responsibilities thus:
Answers 911 emergency phone calls,
dispatching appropriate police, fire, medical or other
non-emergency calls, providing information to caller.
computerized information, retrieving and analyzing data and providing to staff.
contact with law enforcement, fire, and ambulance units within
Operates teletype and
CRT to obtain driver information, vehicle registration, warrants,
etc, providing information to officers.
Monitors alarm and
weather systems, dispatching staff accordingly.
Provides Emergency Medical Dispatch
service to callers until emergency units arrive.
updates records, including all components of the 911 database.
maintenance and operational needs to appropriate personnel, following
and predictable attendance, works overtime/extra hours as required.
Performs other duties
The Center does not typically have twenty-five full-time Telecommunicators on staff.
As the position
description notes, overtime can be a predictable component of the position.
Telecommunicators ordinarily work five days followed by two days off, then five
followed by three days off (5/2, 5/3 schedule). At all times relevant to the grievance,
Telecommunicators worked four shifts. The A shift is the day shift, B shift is the afternoon
p.m. through 11:00 p.m.), C shift is the night shift (10:40 p.m. through 7:00 a.m.) and E
shift is a
power shift (7:00 p.m. through 3:00 a.m.). One Telecommunicator staffs the E shift. The
ordinarily staffs the B shift and the first half of the C shift with five Telecommunicators.
Training Telecommunicators is labor and time intensive. The Department maintains
five-Step training system. To become a full-time Telecommunicator, a trainee must
each step. Step One is an orientation process to communicate Center procedures to the
Two is training in the handling of non-emergency calls. Step Three is training in emergency
Step Four puts a trainee in control of all the equipment, but under the watch of a mentor,
another Telecommunicator. Step Five involves monthly oversight of the trainee's
the trainee successfully completes the probationary period. The steps are not rigidly defined.
trainees take longer to train than others, and the length of time required for each step can
trainee to trainee. Some trainees are unable or unwilling to complete the training process.
Grievance 02-325 was prompted by such a situation. The grievance, dated July 17,
(references to dates are to 2002, unless otherwise noted), states the underlying facts thus:
Natalie Wilson is employed by the employer as a trainee in the
Wilson completed the first phase of her training as a call taker. Having successfully
first phase, Wilson was then moved to the radio console; the second phase of
training. However, after a short period of time, Wilson was unable to deal with the
frequent demands that the radio console
presented. Subsequently, Wilson notified supervision
of her intent to resign her position as a trainee in the telecommunications center.
After notifying supervision of her intent to
resign, Wilson applied for and was offered a vacant
position as a cook for the jail. However, rather than transfer Wilson to the vacant cook's
once she was approved, the employer opted to improperly use Wilson exclusively as a call
the telecommunications center for an extended period of 2-3 weeks in an effort to avoid
pay overtime to eligible employees.
The grievance form cites the governing contract provisions thus: "Violation of Article
Management Rights, Appendix A - Classification, Grade, and Wage Schedule, and any other
and/or Sections of the collective bargaining agreement that may apply." The form seeks, as
that the County "immediately 'cease and desist' from using Natalie Wilson as a call taker"
eligible employees receive "their appropriate rates of pay for those hours improperly worked
Wilson as call taker."
The County hired Wilson sometime in mid-February. She completed Step One of her
in late-February, and completed Step Two in late March. She advanced into Step Three
did not complete it. She was actively involved in Step Three training in the teletype system
Documentation from her personnel file indicates that some of her trainers had reservations
performance during Step Three training. None of the stated reservations sought Wilson's
termination, or indicated that she was incapable of meeting the requirements of the position.
Sometime in late June, the County stopped actively training Wilson to become a
Wilson had concerns regarding her desire to become a Telecommunicator. At some
her training, she successfully requested a transfer to the position of Cook. The County
in the position of Telecommunicator until September 1, when her transfer to the position of
became effective. Jo Anne Hollmann is a Shift Supervisor in the Center, and oversees the
of Telecommunicators. She attached a note to a "Daily Observation Report" for Wilson's
June 23 and 24 that states: "Not reviewed w/Wilson as she turned in her resignation."
has served as a Telecommunicator for nineteen years, and serves as the Association's
Communications Representative. She testified that Wilson's resignation, and her retention to
non-emergency calls was noted by a supervisor during a pre-shift briefing. She could not
Between late June and September 1, Wilson served in the Center, but did not perform
beyond those she had successfully trained for. This meant she could respond to non-911
not to 911 calls. The Association calculates that Wilson worked 405.52 hours during this
At all times relevant to the grievance, the County's assignment of overtime
between shift vacancies caused by events arising within forty-eight hours of the scheduled
(Unscheduled overtime) and those vacancies arising more than forty-eight hours from the
shift (Scheduled overtime). The County uses Sergeants, on a rotating basis, to set up and to
work schedules. At one point, the County used bargaining unit employees to perform this
James, for example, once set up Telecommunicator schedules. At all times relevant to the
the County has posted Scheduled Overtime. As of July, employees could bump less senior
Telecommunicators from a posted overtime opportunity until twenty-four hours prior to the
vacancy. Posted overtime is not guaranteed, and the County frequently pulls posted overtime
opportunities prior to the scheduled shift. In July and August, the County scratched a
shifts that Wilson worked from the overtime posting, with the notation "not needed." The
was not exclusive to shifts worked by Wilson.
The Association's view of the County's overtime scheduling practices is codified in a
document headed "Outagamie County Sheriff's Department & WPPA's LEER Division
For Assigning Overtime." This document, referred to below as the Guidelines, was created
the operation of a labor management committee. It is not signed or dated. Gehring
management committee meetings. Neither he, nor any member of the County's Personnel
Department, participated in the discussions that produced the Guidelines. James did not
in the creation of this document, although she participated in the creation of one of its
She testified that Gehring has indicated his approval of the contents of the document.
that he, or any designee on his behalf, has agreed to be bound by the Guidelines. The
include the following provisions:
It is the responsibility of department management to insure that
overtime is scheduled in the most
efficient manner while at the same time being cognizant of the burden overtime places on
Except where there are mitigating circumstances, these guidelines should be followed when
In the event of errors in the assignment of overtime according to
these guidelines, the senior
employee who was available and should have been assigned the overtime will be given the
opportunity to work an equivalent number of hours of overtime. However the County will
required to offer such makeup overtime work to the first three (3) errors made in any two (2)
. . .
UNSCHEDULED OVERTIME: Defined
as overtime occurring when notice is received by the
supervisor 48 hours OR LESS before the absence from work occurs
(sick leave, emergencies,
funeral leaves, vacation etc.)
SCHEDULED OVERTIME: Defined as
overtime occurring where notice is received by the
supervisor more than 48 hours before the planned absence from work
occurs (vacations, leave of
absence, military leave, medical leaves, etc.)
SENIORITY: as defined in current contract
FULL SHIFT: defined as 8 hours and 20 minutes
Revised December 14, 1992 revised February 21, 1995
draft revision 04/04/96 revised
May 23, 1996
revised April 1, 1999 revised
May 3, 1999
revised 12/01/01 and submitted for 60 day
. . .
General Guidelines for Assigning Scheduled and
1. Scheduled and unscheduled overtime preferences
whether voluntarily or involuntarily will be
filled by seniority, job classification, and the ability to work the specific assignment.
. . .
Neither the County nor the Association submitted the Guidelines for a ratification vote.
The County employs between 1,200 and 1,250 employees. Transfers between
not uncommon. Maxine Salfai is a Senior Human Resources Analyst, and testified that there
a lag between the time an employee is offered a posted position and the time the employee
can fill it.
In her view, Wilson's transfer was handled as any other transfer. The lag time between the
of her training in Step Three and her assumption of the Cook position was not atypical. For
in effecting two transfers into the Correctional Officer position, there was a roughly
in one transfer and roughly a one-month lag in the other.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Association's Initial Brief
The Association states the issues for decision thus:
Did the County violate the terms of the collective bargaining
agreement by improperly
permitting Natalie Wilson to work exclusively as a call taker in the telecommunications
If so, what is the appropriate remedy?
After an extensive review of the evidence, the Association
contends that the County's retention of
Wilson "as a call-taker" constitutes an abuse of discretion. This is improper as a matter of
precedent and as an unreasonable exercise of the County's management rights.
Since the labor agreement "explicitly sets forth the various job classifications for the
bargaining unit," and since there is no identified "call-taker" classification, it follows that
unreasonably and arbitrarily exercised its management's rights." Taking non-emergency calls
one of the many duties of a Telecommunicator, and the County's use of Wilson as a
call-taker for two
months unilaterally created a position, and filled it with "an individual not qualified to do
The County's unilateral actions "unreasonably changed existing practices and working
conditions." Telecommunicators other than Wilson take calls and dispatch. The County
relegated a trainee to the call-taking function after he or she" has moved beyond Step three
Nor has the County "allowed a trainee who did not pass the training process to remain on the
by performing only part of the telecommunicator function. The evidence will not support a
conclusion that the County was unsure "as to Wilson's intentions of leaving her position with
Center." Nor does the evidence indicate the County ever permitted an employee who had
to stay on in a position they were unqualified to perform.
Nor did the County's actions serve any legitimate interest. The County's desire to
overtime costs cannot justify a contract breach. Beyond this, Wilson's continued
adversely affected other unit members by aggravating "the innate stressfulness of the position
several levels." Incumbent Telecommunicators could not rely on Wilson to assist with
call, and lost the benefit of their "internal rotation" system since Wilson's presence precluded
Telecommunicator from taking non-emergency calls on their final shift.
The County's actions violated the Guidelines, which are arbitrable under arbitral and
precedent. Since the Guidelines govern overtime, they are a mandatory
subject of bargaining, and even if permissive, are enforceable as an integral part of the
agreement. Article IX governs overtime, and the Guidelines address a gap in its coverage.
County contention that the Guidelines are not arbitrable should, in any event, be estopped
doctrines established in arbitral and judicial precedent. Beyond this, the County should not
to complain that the interpretation of the Guidelines was not put into issue at hearing. A
conclusion would undercut any attempt by the parties to consensually establish procedures to
The County's assignment of Wilson to be a call-taker violates the Guidelines, and
unreasonably applies its management rights. The use of Wilson impermissibly allowed the
to remove posted, scheduled overtime for unit members. A shift cannot reasonably be
viewed as "not
needed" if an unqualified employee fills it. Since the Guidelines establish criteria for the
overtime, and since those criteria include seniority and the ability to work the specific
County's use of Wilson in hours of posted scheduled overtime "violates the Guideline criteria
levels." First, Wilson bumped more senior employees, and second, Wilson lacked the ability
perform as a Telecommunicator. Nor can these hours be considered "regular hours" filled
"regular employee." Rather, the hours were "specifically defined by the Guidelines as
The Association concludes by requesting that "the Arbitrator sustain the . . .
the County to cease and desist from using call-takers to perform bargaining unit work, cease
desist from unilaterally creating the call-taker position, award those employees who would
worked the overtime shifts had Wilson not been retained as a call-taker backpay at the
for those hours not worked, and retain jurisdiction to ensure compliance with the award."
The County's Initial Brief
The County states the issues for decision thus:
Did the County violate Article I, Management Rights, and/or
Appendix A of the Collective
Bargaining Agreement when it maintained Natalie Wilson on schedule as a
she transferred to a different position of Cook on September 1, 2002?
If so, what is the appropriate remedy?
After a review of the evidence, the County contends that clear
and unambiguous language in the labor
agreement "reserves to the County the right to make the work assignments that it made in
Arbitral precedent puts clear language beyond the scope of interpretation, and, in this case,
Agreement . . . reserves to the County all its inherent management rights, including the right
employees work, as was done in this case."
The management rights clause unambiguously and exclusively vests in the County the
authority to assign job duties and overtime. Wilson "remained a regular employee until she
transferred to the position of cook." The County did no more than assign her, as a regular
Article VIII specifies the normal workweek for Telecommunicators. Since Wilson
a Telecommunicator until her transfer, "the clear language indicates that (she) was to
receive her normal hours of work." If the County had not continued to assign Wilson those
hours, she "would arguably (have) had a grievance." Since she had not resigned, and the
not terminated her, "the clear language of the Hours provisions of the Agreement support the
Section 34.01 establishes that no right can exist unless it has been negotiated to be
part of the
Agreement. This underscores that the County had the authority to assign regular work
The Association "has failed to show that there has been any violation of the
Section 7.02 places a burden on the Association to "demonstrate which provision of the
has been violated." The grievance form lacks specificity, but alleges no violation supported
The sole basis for the Association's case rests on the overtime provisions in the
They are, however, irrelevant since "this is not an overtime case." More significantly, the
are not, and never have been "incorporated by reference into the Agreement." Testimony by
Association and by County witnesses "clearly (establishes) that the document so heavily
by the Association is not part of the Agreement and was never intended to be part of the
Even if such evidence existed, "the Association's position would be illegal and in
violation of the Sheriff's rights." The Agreement "is a contract between Outagamie County
Association." The Sheriff "is not a party to the contract or this proceeding." Since the
on the Sheriff's assignment of regular hours and training, it impermissibly infringes on the
authority, the "origins (of which) pre-date the Magna Carta." His authority is
protected in Wisconsin, and the subject of a long line of cases. The grievance questions
a labor agreement cannot regulate.
Section 7.02 limits the authority of the arbitrator. The Association seeks "that this
add to the terms of the Agreement by requiring a termination of an employee who has not
or to provide overtime to other employees at the expense of regular hours to another of its
To accept the Association's view would take the award beyond the scope permitted under
Even if the agreement provisions were ambiguous, evidence of past practice supports
County. The County has historically permitted Telecommunicators "who did not complete
of training to perform job functions within their training experience." Beyond this, such
"have been permitted to fill positions requiring overtime." This is the first time the
The County concludes, "the grievance must be denied."
The Association's Reply Brief
The Association contends that the County "grossly misstates the Association's
to permit it to use "fabrications as a foundation to convince the Arbitrator to deny the
The Association contends that "the County violated the Agreement when it retained Wilson
as a call-taker and assigned qualified telecommunicator overtime hours to an individual not
perform (as) . . . a telecommunicator, working in a position not recognized by the . . .
Whether or how Wilson resigned has no bearing on the Association's actual case.
Beyond this, on "an even more absurd level," the County attempts to force the
into the position of demanding Wilson's termination. This ignores that Wilson "in fact,
resignation." If Wilson continued, the County was obligated to continue her training rather
creating the non-contractual position of call-taker. The County's characterization of the
further "falsehoods" to its attempt to have the grievance dismissed.
The County's assertion that Wilson "was 'contemplating' resigning from the Center"
that she in fact resigned. To the extent the evidentiary record is weak on this point, the
stems from the County's refusal to over "non-hearsay evidence to support its contention."
The record will not support the County's assertion that "it maintained Wilson's
consistent with her training and with historical assignments given to other employees."
evidence shows that the County did not permit Wilson to remain in Step 2, but in fact moved
Step 3 back to Step 2. Nor is the County's characterization that it gave regular hours to a
employee any more persuasive. In fact, the County took posted overtime hours from
Telecommunicators to fill Wilson's schedule. Nor will the record support the assertion that
County followed past practice in permitting Wilson to remain in her position pending
functioned as a call-taker, not as a Telecommunicator. There is no evidence the County has
employees to temporarily fill a position they are unqualified for. Nor is evidence that the
permitted Telecommunicators to continue training at Step 2 relevant to this grievance.
to complete Step 3, and was retained solely to cut overtime.
The temporary assignment is, in fact, an unreasonable and illogical exercise of the
management rights. Article VIII is inapplicable since Wilson did not perform as a
The County's attempt to bring the language of the grievance procedure to bear on the
similarly unpersuasive. The County asserts that an arbitrator cannot add to or modify the
then contends that the Sheriff's constitutional authority provides interpretive guidance.
Commission precedent denies validity to this argument.
The Association cautions that the "County cannot tag the Association with absurd and
illogical arguments to substantiate its own case." Focusing on the Association's actual case
that the grievance be sustained and make-whole relief awarded.
The County's Reply Brief
The County contends that Wilson's work assignment was no more than an assignment
regular hours to a regular employee, all occurring well within the scope of Article VIII.
management rights clause clearly and unambiguously authorizes this assignment makes it "the
clause . . . governing this case." The Association's failure to argue ambiguity in that clause
initial brief waives any claim that the clause is ambiguous.
Nor will the record support the Association's contention that the County acted
capriciously. The evidence will not establish that the County created a "call-taker" position.
County done so, "the Association would have requested to bargain the impact." Rather, the
assigned call-taking duties as it has in the past, and the "County simply allowed Ms. Wilson
perform a job within her capabilities . . . until the cook position . . . opened."
That other employees have resigned when it became clear they would not successfully
complete Step 3 has no bearing on the grievance. Unlike those cases, Wilson "did not resign
. . position until her transfer." The County reasonably responded to her transfer request.
Nor did the
County "relegate" Wilson back to Step 2. Rather, "the County elected to discontinue
unnecessary further training in light of (her) request to transfer to another open position."
did not resign, and the County did not terminate her.
Nor can the Association show that "the County's actions adversely affected other
The Association "attempts to parlay a reach for overtime hours for other telecommunicators
expense of their own bargaining unit members." The record does not show Wilson received
regular or overtime hours at the expense of other telecommunicator overtime opportunities."
record shows no evidence of added stress to Telecommunicators, and even if it did, it is hard
understand how added stress justifies additional overtime.
To accept the Association's arguments would produce an absurd result. Abandoning
assertion that the County should have terminated Wilson, the Association contends that it was
obligated to continue her training. This, however, flies in the face of evidence that Wilson
wanted to train as a telecommunicator" and would work an unreasonable and absurd result.
The County contends that the crux of the grievance is "the Association's dependence"
Guidelines. Article XXXIV precludes considering this document to be a part of the labor
The Guidelines were "not agreed to by the parties and does not meet the express
requirements of the
bargaining agreement to be considered valid." Nor will the evidence support a claim that the
met and agreed upon the terms of the Guidelines. The Association's assertion of estoppel
bring the document into the labor agreement. The Association's failure to assert the position
hearing waives it as a post-hearing claim. Even if the claim is considered, it lacks merit.
never followed the Guidelines, even during the processing of prior grievances. Even if the
could be considered a part of the labor agreement, the labor agreement and past practice
there is no guarantee of overtime. In any event, Section 7.02 precludes use of the Guidelines
The County concludes that the grievance must be denied.
I have adopted an issue for decision that draws on, without fully adopting, either
Association's view of the Agreement provisions at issue is broader than the County's, and is
incorporated into my statement of the issue. The grievance form cites Article I, Appendix A
other Articles" that may apply. This catch-all phrase is not enough to put the entire
issue, but it is evident the parties processed the grievance as a general one. Section 7.02
a statement of the sections violated, but also provides that if the grievance is deficient, it
returned for the items to be included." There is no evidence that the County returned the
The Human Resources Director's response to the grievance asserts, "the continued
Natalie Wilson as a Telecommunicator is not a violation of the Labor Agreement." Against
background, there is no persuasive reason to restrict the issue as narrowly as the County's
of the issue.
The County's statement of the issue persuasively narrows the issue contractually and
but presumes the answer to the issue by ignoring the cessation of Wilson's active training.
Association's similarly presumes its own answer by linking "improperly" to Wilson's work
"exclusively as a call taker." I have adopted an issue broad enough to highlight that the
questions whether the County did no more than assign Wilson within the limits of her
a transfer or whether it improperly created a position to undercut contractual overtime
The breadth of the County's response to the grievance reflects the interpretive
grievance poses. The grievance questions the implications of the County's retention of
the assignment of overtime, but lacks a sufficiently sound contractual basis to be enforceable.
explanation of this conclusion demands that the Association's asserted bases for the grievance
The Association contends that management rights must be exercised reasonably,
precedent. As underscored by Section 7.02, an arbitrator's authority is to interpret the labor
agreement. Precedent may play a persuasive role in addressing contractual ambiguity, but it
a source of a contractual obligation. Section 1.01 does not state the "reasonableness"
by the Association. However, the County cannot assert its rights under Article I as a basis
undercut other agreement provisions. Whether or not characterized a "reasonableness"
is the interpretive issue.
The Association points to an express reasonableness standard in Sections 1.01 and
concerning County authority to publish rules and regulations. Neither provision, however, is
relevant source of authority over the grievance. The Guidelines do not appear to be work
within the meaning of those sections. Each section is formal, stating a requirement that the
rules will be published. Section 4.01 cites the statutory provision governing the bargaining
relationship, and demands thirty days notice from the County to the Association of new
use of "adopt" in Section 1.01 and the notice provisions of Section 4.01 highlight the contrast
Guidelines. Similarly, Section 1.01 mentions that the "County and the Union will cooperate"
the cooperation to "the enforcement" of published work rules. The Guidelines thus appear to
something unique from the "rule-making" process. They appear to be the result of an
consensus process, facilitated in part by the Sheriff. Association officials and Human
officials were not involved. The Guidelines were not put to any sort of formal ratification
by the Association, the County or the Sheriff. The informality and the consensus-based
their creation makes them a difficult fit for the formal processes of Sections 1.01 or 4.01,
to a County based effort to define, then publish, work rules, subject to challenge by the
Determining whether or not the Guidelines constitute work rules is not necessary to
the grievance. Even if not work rules, the Guidelines are relevant evidence to determine the
assignment of overtime under Article IX. The testimony of the employees who create
indicates the Guidelines are a statement of how the Department assigns. The difficulty for
Association's position is that the Guidelines do not establish the violation it asserts. Rather,
the interpretive issue. The Association questions whether Wilson had "the ability to work the
assignment." This view, however, restates its position that the County unilaterally created a
position, thus violating the Agreement. The dispute cannot be focused as an overtime
Article IX without first concluding the County improperly created a "call-taker" position.
no evidence that the County
violated Article IX if it did no more than grant Wilson regular hours as a
the effective date of her transfer.
Thus, the crucial component of the Association's case is the demonstration that the
created a "call-taker" position in violation of the Agreement. There is, however, no reliable
contractual basis to support this assertion. Testimony and the Telecommunicator position
establish that answering non-emergency calls is one of the duties of a Telecommunicator. It
undisputed that Wilson failed to successfully complete Step 3, and was thus not capable of
911 calls. It is also undisputed that Wilson successfully transferred to the Cook's position
The Association contends that the County's retention of Wilson as a "call-taker" has
implications on Telecommunicator overtime under Article IX. However, more adverse
implications surround the Association's view of the "call-taker" position.
Most significantly, the evidence will not support an assertion that Wilson resigned her
as Telecommunicator. Resignation poses a question of fact concerning whether an employee
voluntarily terminated employment, see generally Volume 1, Chapter 22, especially Section
of Labor and Employment Arbitration, Bornstein, Gosline & Greenbaum
(Matthew Bender, 2002).
That Wilson stayed as a Telecommunicator ends inquiry on this point. That Hollmann
placed a sticky
note on a file noting a resignation, or that another member of management noted Wilson's
at a briefing has no bearing on whether Wilson voluntarily relinquished the position, unless
County, as employer, can "volunteer" it. In my view, this is an untenable position.
County has the burden to prove a resignation is no more tenable. If the County coerced the
resignation, it would be a discharge. Proof on whether Wilson resigned must come from
the County. Either party could have called her as a witness. Neither did.
The Association's argument turns, then, on whether the labor agreement precluded
County from retaining Wilson as a Telecommunicator. There is no agreement provision to
this. The loss of a specific shift or shifts of overtime following the decision to discontinue
training cannot be labeled improper standing alone, absent a contractual guarantee of
exists. The point is not resolvable as a policy issue. There is no duty to maximize
overtime, just as
there is no duty to minimize it. Rather, the County cannot use its management rights under
I to eliminate the provisions of Article IX. Even if past practice is considered to address the
ambiguous relationship of Article I to Article IX, evidence on practice shows there can be a
between when a position comes open, and when the successful applicant fills it. Nothing in
evidence persuasively indicates that the delay in this case was exceptional.
The contractual implications of adopting the Association's position are troubling. If
"call-taker" is a new position not covered by the agreement, the dispute would seem to
not contract interpretation. More troubling is the impact on Wilson's position. If she was
competent to be a Telecommunicator, and had to be removed from the position, can the
characterized as anything other than a discharge? How can it be a discharge without County
to terminate? What authority does an arbitrator have to remove her from the
position without a voluntary quit or employer action to terminate? To conclude Wilson
a Telecommunicator within the limits of her successful training poses no such interpretive
There is no evident undercutting of Article IX rights, since she filled the position as she
as a continuing trainee. There is no evident problem under Article I, since non-emergency
is an assignable duty, not a position. Nor is there any dispute the County could have
overtime shifts "not needed" with another trainee, or by short-staffing. At root, the
case demands that the cessation of Wilson's active training be given contractual significance
termination. Short of proof that the County's continuing to assign her duties within her
under Articles I and VIII undermined Article IX, there is no basis for granting it that
There is no such proof here. She continued as a Telecommunicator until the Cook position
To conclude she denied other unit employees overtime demands the conclusion she had no
the work. This conclusion lacks a contractual foundation and unnecessarily poses her
rights against other unit employees' interest in overtime.
Before closing, it is appropriate to tie this conclusion more closely to the parties'
The Association forcefully asserts that Wilson's retention affected a number of working
This can be granted, but begs the contractual issue. The asserted affect would have been the
but without contractual significance, if the County nominally continued Wilson's training
This line of argument places too great a significance on the cessation of training. The
significance of Wilson's retention turns on whether the County's assertion of its authority
Article I undermined Article IX. To conclude it did so on the facts posed here does less to
Article IX rights than to undermine Article I.
The Association's assertion that Wilson was incapable of performing her position
persuasive guidance. It is not immediately apparent that her retention pending the transfer
from the retention of a trainee at Step 2 until the trainee can move to Step 3. To conclude
unnecessarily pits the interests of full-time Telecommunicators against Wilson's contractual
continue as a regular employee until either her resignation or a discharge. As noted above,
shows no resignation, and the discharge cannot be found without having an arbitrator bring it
I do not find persuasive the County's assertion that the contractual provisions cited
clear and unambiguous. This point has no effect on the conclusions stated above, but bears
note. It is not clear, in the absence of a specific fact situation, whether the
assignment rights under Article I or VIII undercut the provisions of Article IX. Since
of those provisions demands a factual context, it cannot be considered without ambiguity.
the extent of the Sheriff's constitutional authority, it has no impact on the conclusions stated
Whether he adopted the Guidelines or not, the Guidelines do not mandate the result sought
Association any more than the contract does. Thus, whether they are independently
enforceable as work rules made part of the agreement plays no determinative role in this
Since their independent enforcement or enforcement as work rules is not determinative,
XXXI, XXXIII and XXXIV do not govern the grievance. The Guidelines are, in this matter,
of evidence concerning County assignment of overtime. Ultimately, it is the absence of a
basis rather than the presence of any of these provisions that is fatal to the grievance.
The County did not violate the Agreement by maintaining Natalie Wilson as a
Telecommunicator from the cessation of her active training in Step 3 until her transfer to the
of Cook on September 1, 2002.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 22nd day of April, 2003.