BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY SHERIFF DEPARTMENT
LOCAL 986-B, AFSCME, AFL-CIO
(vacation denial grievance of Laurie Magyar dated 3-14-02)
Mr. Neil Rainford, Business Representative, AFSCME Council
40, 14002 County Road C, Valders,
WI 54245, appearing on behalf of the Union.
von Briesen & Roper, S.C., by Attorney James R. Korom,
P.O. Box 3262, 411 East Wisconsin
Avenue, Milwaukee, WI 53202-4470, appearing on behalf of the County.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned, Marshall L. Gratz, as arbitrator to hear and decide a dispute
the above-noted grievance under the parties' 2000-01 Agreement (Agreement).
The Arbitrator heard the dispute on September 19, 2002, at the County
Building in Manitowoc, Wisconsin. Following preparation and distribution of a transcript,
summed up their positions in post-hearing briefs and reply briefs, the last of which were
by the Arbitrator on December 31, 2002. An exchange of communications between the
the Arbitrator followed regarding objections by both parties to the post-hearing submissions
other. The Arbitrator ruled in writing on that dispute on January 13, 2003, marking the
close of the
The parties authorized the Arbitrator to frame the issues for determination. The
1. Did the Employer violate the Agreement when it denied
Laurie Magyar's vacation
2. If so, what shall the remedy be?
The County proposed:
1. Did the County violate Art. 15.F.2. as described in the
2. If so, what shall the remedy be?
The Arbitrator frames the issues as follows:
1. Did the County violate the Agreement by its denial of
Laurie Magyar's February 26,
2002, requests to take vacation time off on April 26, 27 and 28, 2002?
2. If so, what shall the remedy be?
PORTIONS OF THE
ARTICLE 3 MANAGEMENT RIGHTS
Unless herein provided, management of the
work and direction of the working force, including
the right to hire, promote, transfer, demote or suspend, or otherwise discharge for just
cause, and the
right to relieve employees from duty because of lack of work or other legitimate reason, is
exclusively in the Employer. If any action taken by the employer is proven not to be
employee shall receive all wages and benefits due him or her for such period of time
involved in the
. . .
The Employer agrees that all amenities and practices in effect for
a minimum period of twelve
(12) months or more, but not specifically referred to in this Agreement shall continue for the
of this Agreement. . . .
. . .
ARTICLE 8 GRIEVANCE PROCEDURE
. . .
Step 1 The employee and one
(1) Union steward shall orally state grievances to the
Department Head (Sheriff) or the Sheriff's designee within a reasonable period of time, but
event later than thirty (30) calendar days after the Union knew or should have known of the
occurrence of such grievance.
. . .
f. Decision of the Board: The
Arbitrator shall not modify, add to, or delete from the terms of
ARTICLE 12 HOLIDAYS
All employees shall be granted (10) paid
holidays each year. . . .
. . .
ARTICLE 15 - VACATIONS
. . .
D. All employees shall be required to use all accumulated
vacation time during the year, and
each employee shall be obliged to use his or her vacation within one (1) year of its being
the event of unusual circumstances preventing the employee from taking such vacation, he or
must apply to the Sheriff or Sheriff's designee, subject to the approval of the Personnel
for any deviation from this rule.
E. The listing of vacations as selected
by the employees shall be posted on the bulletin board and
F. Vacation time will be as follows:
1. Department training shall take priority over personal time
off from work including
vacation and holiday time.
2. Minimum staffing for each shift
must be maintained. (This allows at least one (1)
bargaining unit employee within the Jail Division not to be written into the work schedule
per day.) This includes all reasons for absence from training to vacation/holiday time.
At least one (1) telecommunicator shall be
allowed to be off scheduled duty per day for
vacation and holidays.
3. Vacation time shall be selected in
blocks of time consisting of six (6) work days or
consecutive scheduled work days in the employee's work cycle. Unless the choice of dates is
extended vacation for more than six (6) work days or consecutive scheduled work days in the
employee's work cycle.
4. First choice of vacation dates shall
be chosen by January 15th of each year. Choices of
vacation time shall be done on a rotational basis with management employees receiving first
in the choice of vacation time followed by union personnel according to seniority and by
With this rotation schedule, any approved
first choice of vacation time will be granted over
and above any other senior (in both rank and length of service) employee's second or third,
vacation request on the same shift. In case of conflict in choice of dates, the senior
have preference provided the conflict is on the same rotational choice of vacation.
G. Vacations shall not be transferable
to any other compensatory accounts.
H. Due to unusual circumstances,
vacation time for less than a full week may be used. This
vacation time will not be scheduled on a rotational basis but will be granted on a first-come,
basis. After January 14th of each year a minimum notice of three (3) working days will be
I. All employees must give a
minimum of one (1) week's notice for the rescheduling of
vacation time which is also agreeable with the Employer. Waiver of this notice may be
the approval of the Employer.
. . .
ARTICLE 30 ENTIRE
MEMORANDUM OF AGREEMENT
A. This Agreement constitutes the
entire Agreement between Manitowoc County and the
Manitowoc County Sheriff's Department Employees represented by Local 986-B.
None of the terms and conditions of this Agreement shall be
changed unilaterally. Changes
may be made by mutual agreement of the parties in writing.
. . .
The Union currently represents a bargaining unit of non-supervisory supportive
personnel without the power of arrest employed in the County's Sheriff's Department. The
Agreement lists classifications of Cook, Corrections Officer, Secretary/Bookkeeper,
and Telecommunicator. The County and Union have been parties to a series of collective
agreements covering non-supervisory Sheriff's Department employees since at least 1989.
originally included sworn personnel with the power of arrest; those employees are currently
represented by the Wisconsin Professional Police Association (WPPA). Telecommunicators
a part of the unit sometime after 1992.
The Agreement contains a nominal expiration date of December 31, 2001. As of the
the hearing, the parties' negotiations for a successor to the Agreement were pending and
Accordingly, although the instant dispute arose in 2002, the parties have processed this case
the grievance and arbitration procedure as set forth in the Agreement.
The Grievant in this case, Laurie Magyar, has been a Corrections Officer in the
at all material times.
It is undisputed that the vacation selection procedure under the Agreement calls for
selections in January of blocks of 6 or more consecutive scheduled work days in the
cycle, assigned by seniority, and a subsequent selection of the remaining days on a
serve basis. The vacation requests at issue involved the latter type.
On February 26, 2002, the Grievant requested to take vacation time off on April 26,
28, 2002. Grievant requested those days with the knowledge that they had previously been
as vacation days to Brian Nies, a member of the bargaining unit who resigned at about the
Grievant submitted her request for the three days off. Grievant's requests for those days
denied on February 28, 2002, on the stated basis of "1 union off already -", i.e., that one
unit employee was already scheduled off on each of the days. As of late February, Union
Peshka had been absent on sick leave due to a shoulder problem which jail management
(and which in fact) continued to prevent his return to work through and well beyond the
in April requested by the Grievant on February 26. The Arbitrator finds it appropriate to
case so as to treat Peshka's anticipated absence on sick leave as the reason for the County's
the vacation requests at issue.
On March 14, 2002, the grievance giving rise to this dispute was filed. In it,
that the County's denial of her requests to take vacation on April 26, 27 and 28, 2002,
Agreement Art. 15.F.2. By way of adjustment, the grievance states "[v]acation for April 26,
28th, 2002 should be approved as there is no bargaining unit employee off on training,
The grievance was denied at various pre-arbitral steps and submitted for arbitration as
At the hearing, the Union presented testimony by the Grievant and rested. The
presented testimony by Inspector Robert Hermann, Jail Sergeant Michael Herrmann and
Director Sharon Cornils and rested. The Union then presented testimony by Union business
representative Gerald Ugland (taken by telephone). The County then concluded the
hearing by presenting testimony by Sheriff Kenneth Petersen.
It is undisputed that on March 13, 2001, Jail Administrator R. J. Aukamp issued an
operational directive to persons including all Local 986-B bargaining unit personnel and their
supervisors which read, in pertinent part, as follows:
Due to the unusual circumstances of a number of individuals on
extended leave due to sickness,
family leave, training etc. and due to the fact that we have not, as of yet been able to fill the
opening and the temporary opening currently existing, it is necessary to place certain
training requests and time off requests. Effective immediately, as per union contract, only 1
person and 1 management person will be allowed to be written out of the schedule per day.
In addition, all training requests, unless they
are on an individual's regularly scheduled day off,
will not be approved. In anticipation of the installation of our new computer system, there
ample training for all employees to cover the 24 hour re-certification requirements, so this
cause a problem for anyone. As of this date, this training is scheduled to begin on or about
Again, due to the number of people already
out of the schedule, we are asking staff to sign up
for the new computer training (Tiburon) on their regularly scheduled days off. You will be
compensated with adjustment time for this training. Originally, this training will consist of 3
training with the possibility of 2 more days of training to be given at a later date depending
we go live with the new system. A sign up sheet will be posted next week to give you
to arrange your schedules. We will split this training into blocks of 2 days and 1 day so as
require you to give up all 3 of your regularly scheduled days off on one rotation. We will
do this training on your regularly scheduled shift hours.
As soon as possible, the restrictions listed above will be relaxed.
This of course will depend on
the filling of the open positions and the return to work of those individuals now off. We
for your cooperation in this matter. . . .
It is undisputed that the last sentence of the first paragraph of the above-quoted March
directive established a more restrictive standard regarding granting or denying Jail Division
requests and time off requests as compared with the standard that had been applied for many
Specifically, it changed from a standard whereby a second union person was allowed to be
out of the schedule per shift per day if no management person was written off the schedule,
standard whereby only one union person would be allowed to be written out of the schedule
per day, regardless of whether a management person was requesting to be written out of the
for any reason during that shift.
It is also undisputed that since March 13, 2001, jail management has treated
absences due to sick leave and Family and Medical Leave Act leave the same as anticipated
due to training, holiday time and vacation, for purposes of granting or denying Jail Division
requests and time off requests. However, it is disputed whether such absences were or were
considered prior to March 13, 2001.
Additional factual background is noted in the summaries of the parties positions and
POSITIONS OF THE PARTIES
Properly interpreted, the language of Art. 15.F.2. requires the County to allow at
bargaining unit employee within the Jail Division to be absent for reasons of training,
holiday time, regardless of whether one or more bargaining unit employees are known in
be absent due to sick leave or other reasons besides training, vacation or holiday time.
Training, vacation and holiday time are the only reasons listed in Art. 15.F.2.
those reasons can be predicted in advance whereas absences for funeral leaves and many sick
cannot. It is therefore logical that the express references to training, vacation and holiday
intended to be an exclusive list.
Bargaining history supports the Union's interpretation. The language of Art. 15.F.2.
appeared in an agreement reached in 1989 when the unit included sworn personnel with the
of arrest. After those employees became represented separately, the County reached an
with WPPA that changed the last sentence of the first paragraph of Art. 15.F.2 to read
all reasons for absence including but not limited to prior scheduled
vacation, holiday time, sick leave and training." The County cannot be allowed to
different arrangement that the County obtained in bargaining with WPPA where, as here, the
has not obtained from the Union the same language it obtained in bargaining with the WPPA.
The County's proposed interpretation must also be rejected because it would result in
insufficient number of opportunities for first shift bargaining unit employees to take all of
vacation and holiday days off, eventually causing them to lose some of those days. In fact,
employees are entitled to 382 shifts of vacation, holiday and training per year which cannot
scheduled within the 365 days in a year if the County's interpretation is upheld. The parties
be deemed to have intended Art. 15.F.2. to defeat the rights of employees to take the full
of vacation and holidays provided for them under the Agreement.
The County's interpretation is also inconsistent with longstanding past practice in
to the issuance of the March 13, 2001 directive and therefore the amenities and practices
contained in Art. 3. The evidence shows that the practice was to allow two union persons to
written off the schedule for training, vacation or holiday time where no management person
requesting time off for those purposes on the same shift and day. Since issuance of that
County has allowed only one union person to be off the schedule regardless of whether a
person requests to be written off the schedule for one of those purposes.
The County's objection to the timeliness of the grievance and its other reliance on
practice since the March 13, 2001 directive was issued must be rejected because of the
that were given to the bargaining unit by the County both in the directive and by various
that the change implemented on March 13 was only temporary. The Union's reliance on
assurances was reasonable and fully explains the passage of time before the instant grievance
The County's reliance on bargaining history is also misplaced. The Union's 1995
change the third sentence of the first paragraph of Art. 15.F.2. was clearly labeled as a
"CLARIFICATION" of that sentence. The Union also explained at the table that it was not
attempting to alter the way vacation was then being administered. Rather, it was merely
replace a clumsily worded sentence with one that more clearly stated the parties' mutual
reflected in the way vacation was then being administered. In those circumstances, the
withdrawal of the proposal does not undercut the Union's contention that the existing
Art. 15.F.2. requires the County to administer vacation the way it did in 1995 and before the
that were made on March 13, 2001. Especially so where, as Ugland testified, the Union
the proposal in response to a bargaining table statement from then Jail Inspector Petersen that
County never denied bargaining unit members' vacation requests.
The County has a number of means to cover employee absences while maintaining
opportunity for the remaining employees to use their leave and to use it at meaningful times.
County could hire more staff to insure that minimum staffing is maintained. It can also
existing staff to work more often to maintain minimum staffing and accept the additional
cost that is a natural result of an aging workforce in a stressful, physically demanding and
environment. However, in this case, the County improperly elected to overreach its
to unilaterally implement a policy that has made it impossible for jailers on the Grievant's
shift to use
their contractually-guaranteed leave at all, and has made it impossible for all jailers to use
at times that are personally significant.
For those reasons, the Arbitrator should declare that the County's denial of the
requests violated Art. 15.F.2. By way of remedy, the County should be ordered to cease
from enforcing the March 13, 2001 memo and to return to the prior practice described
Properly interpreted, the language of Art. 15.F.2. requires only that the County allow
one bargaining unit employee within the Jail Division to be absent for all reasons, including
limited to training, vacation or holiday time.
The language of Art. 15.F.2. reflects that that was what the parties' intended. The
sentence clearly requires that minimum staffing for each shift be maintained, and the
allows management to determine the minimum staffing level needed to meet operational
each shift based on a day to day assessment of operational needs. The reference in the
sentence to "not to be written into the work schedule" is consistent with doing so for any
not for a limited list of reasons that excludes sick leave and others. The third sentence
confirms that "[t]his includes all reasons for absence" and the "from training to
does not exclude sick leave or other reasons besides training, vacation and holiday time.
sentence is inclusive, from training time that is scheduled by the Employer for its benefit to
vacation/holiday time that is scheduled by the Employee for his/her benefit with everything
between, such as sick leave, which benefits the Employee but often cannot be scheduled
Past practice supports the County's interpretation. It is undisputed that from the
the March 13, 2001 directive until the instant grievance was filed in April of 2002, the
Union did not
object to or grieve the issuance of the March 13, 2001 directive, indicating that the Union
that directive to be within the rights of the County under the Agreement to issue and
Furthermore, the evidence is clear that since that directive was issued, the County has
denied bargaining unit members' requests for vacation where one union person was not being
into the work schedule for any reason, including
sick leave. To the extent that the County allowed more than one union person to be
written off of
the schedule for any reason prior to March 13, 2001, that was a matter left to the County's
under the "at least one" language of Art. 15.F.2, but the County did not thereby bind itself
to do so where, as here, staffing and overtime cost concerns prompt it to more strictly
practice to the limits permitted by the Agreement. If the evidence concerning practice prior
13, 2001, conclusively shows anything, it is that the County has always taken into
number of persons who would be written off the schedule for any reason, including but not
to training, vacation, holiday time and sick leave.
Bargaining history also supports the County's interpretation. The Union proposed
without obtaining a change from one to two days in the second sentence of Art. 15.F.2.
bargaining leading up to the 1996-97 agreement. In that same bargain, the Union proposed
settled without achieving a proposal to change the third sentence of Art. 15.F.2 to
includes all reasons for absence for training, vacation and holiday time." In rejecting that
the County's negotiators told the Union at the table that it viewed the Union's proposal as
add a restriction on the types of reasons that the County could take into account in approving
denying time off. As Petersen testified, he did not tell the Union at the bargaining table in
no bargaining unit employee had ever had a vacation request denied, but rather he told them
bargaining unit employee had ever had an approved vacation later denied because of someone
subsequent absence from work. The Union cannot be permitted to obtain through grievance
arbitration the above changes that it was unable to achieve through bargaining.
The County's proposed interpretation of the Agreement would not prevent the
from enjoying a full measure of the vacation benefits accorded them by the Agreement.
can trade days off with other employees on their shift, and they can request trades to enable
work on a different shift from which it might be possible to request and be granted vacation
Employees can also request to carry over vacation beyond the end of the year to avoid losing
such request has ever been turned down where it resulted from the employee's inability to
the vacation time off during the year.
The County's proposed interpretation is also supported by logic and legitimate
purposes. The purpose of limiting the number of individuals off of the schedule at any given
to maintain a sufficient number of staff to safely and efficiently operate the Jail. Staffing is
adversely affected from an absence due to a vacation than it is from an absence due to
should make no difference (as the clear language of the Agreement suggests) whether the
is due to training, vacation, resignation, sick leave, or any other absence.
In essence, this is a bargaining table issue. The grievance should be denied either as
untimely challenge to the March 31, 2001 policy and/or on its merits, and the Union should
required to obtain the changes it seeks through the collective bargaining process rather than
The language of Art. 15.F.2. strongly supports the County's proposed interpretation
provision. The phrase "at least one" is far more consistent with the County's March 13,
directive that "only 1 union person . . . will be allowed to be written out of the schedule [per
per day" than the Union's insistence that 2 union persons be allowed to be written out of the
unless one management person has been so written out. The phrase "[t]his includes all
absence" is far more consistent with the County's consideration of all reasons than the
insistence that the only reasons for absence it includes are training, vacation and holiday time
sick leave, funeral leave, Family and Medical Leave Act leave, or any other reasons.
On the other hand, the County's proposed interpretation would give no effect to the
"from training to vacation/holiday time." The sentence in which that phrase appears would
same meaning with and without the inclusion of that phrase.
However, while interpretations rendering language meaningless are ordinarily to be
if possible, the Arbitrator finds it more persuasive in this case that the parties intended that
merely emphasize the breadth of the phrase preceding it, rather than to impose limitations on
breadth. In other words, the Arbitrator is persuaded that the parties intended the sentence to
the same as it would have meant if they had written it "[t]his includes all reasons for absence
soup to nuts" or "[t]his includes all reasons for absence including, but not limited to prior
vacation, holiday time, and training." The Arbitrator finds that rationale especially
as here, the parties chose not to use the "from . . . to . . . " when they later created a
provision for the
added position of Telecommunicators for whom the reasons were clearly being limited to
and holidays" in the second paragraph of F.2. For the foregoing reasons, and based on the
of the agreement alone, the Arbitrator finds the County's proposed interpretation of Art.
persuasive and rejects the Union's as not supported by the language of the Agreement.
The evidence presented by the parties that goes beyond the four corners of the
does not undercut that conclusion. The significance of the County's evidence of practice
March 13, 2001 directive is persuasively undercut by the fact that the directive itself and
statements by supervisory personnel gave the Union reason to believe that the change
outlined in the
first paragraph of the directive was temporary and would "be relaxed . . . as soon as
Union would have the County's evidence of 1995 bargaining history disregarded because the
proposal was expressly designated as a "clarification" of the third sentence of the first
Art. 15 F.2. The Union's contention in that regard and the related factual dispute about
what was said
at the bargaining table at that time need not be addressed, however, since that evidence
lend further support to the County's position or provide no guidance as to the proper
of Art. 15.F.2.
The Union's reliance on evidence of past practice before the March 13, 2001
persuasive. The phrase "at least one . . ." in 15.2.F. expressly recognizes that more than
person from the Jail Division could be allowed not to be written into the work schedule per
day. Therefore, by having allowed more than one on numerous occasions, the County did
a practice that precluded it from exercising its rights to conform more strictly to the
minimum of one
specified in 15.2.F. Furthermore, the Union has not persuasively shown that the County did
consider reasons other than training, vacation and holiday time prior to March 13, 2001.
Grievant's testimony to that effect was squarely contradicted by that of Jail Sergeant
two other higher ranking supervisors with responsibility for jail operations. The Union's
documentary evidence is inconclusive in that regard because it does not indicate whether the
leave taken was known of in advance of approval of the vacation requests involved. Any
reliance on the amenities and practices clause of Art. 3 is misplaced because that general
protects amenities and practices that are not specifically addressed in contract language. In
Art. 15.2.F specifically addresses the subject matter of this dispute.
The Union has persuasively shown that the changes implemented by issuance of the
13, 2001 directive have made it more difficult for Jail Division bargaining unit employees to
vacation and holiday time off after the rotational selection of vacation blocks has been
January of the year. However, the County persuasively counters that the increased
be traced, at least in part, to expanded time off entitlements enacted by law (e.g., Family and
Leave Act), or arising as the length of service and associated vacation entitlements of the
unit have increased. The record does not persuasively establish that the County's proposed
interpretation would have made it difficult for Jail Division bargaining unit employees to
vacation and holiday time off at the time the disputed language of Art. 15.F.2. was initially
upon in a 1989 side agreement and thereafter incorporated in a slightly modified form in the
collective bargaining agreements. The Arbitrator is not persuaded that interim expansions of
bargaining unit time off entitlements warrant the conclusion that the parties somehow
change the meaning the disputed language in order to accommodate those expanded time off
entitlements. The procedures provided for in the Agreement for requesting extensions of
vacation to the following year and for effecting a trade to a different shift provide some
protection against losses of vacation days. To the extent that the Union seeks additional
their resort needs to be to the bargaining table rather than grievance arbitration.
The Union's reliance on a comparison of the language of Art. 15.F.2 with the
language of the
WPPA's deputies unit contract on the same subject is also not persuasive. The record does
establish how that language came to become a part of the WPPA agreement or whether the
and the County considered that language to be substantively different than the language
in Art. 15.F.2.
There remains the Union's contention that Department management must not be
to renege on its promise in its March 13, 2001 operational directive to relax the restrictions
that directive "[a]s soon as possible . . . depend[ing] on the filling of the
open positions and the return to work of those individuals now off." The restrictions
at issue in this
case have been found above to be specifically and expressly authorized by the language of
Agreement. Therefore, as provided in Art. 30, the unilateral March 13, 2001 management
-- which is not a part of the Agreement -- cannot and does not modify the pertinent
For all of the foregoing reasons, the Arbitrator finds it appropriate to deny the
DECISION AND AWARD
For the foregoing reasons, and based on the record as a whole, it is the decision and
of the Arbitrator on the ISSUES noted above that
1. The County did not violate the Agreement
by its denial of Laurie Magyar's February
26, 2002, requests to take vacation time off on April 26, 27 and 28, 2002.
2. The subject grievance is denied in
all respects, and no consideration of a remedy is
necessary or appropriate.
Dated at Shorewood, Wisconsin, this 7th day of August, 2003.
Marshall L. Gratz, Arbitrator