BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF FOND DU LAC EMPLOYEES LOCAL
CITY OF FOND DU LAC
(Walter Kloske Grievance)
Mr. Thomas Wishman, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf
of the Union.
Davis & Kuelthau, S.C., by Mr. William G. Bracken,
Employment Relations Service Coordinator,
on behalf of the City.
At all times pertinent hereto, the City of Fond du Lac Employees Local 1366,
AFL-CIO (herein the Union) and the City of Fond du Lac (herein the City) were parties to a
conditions agreement dated September 1, 2000, and covering the period January 1, 2000, to
December 31, 2002, and providing for binding arbitration of certain disputes between the
On December 20, 2002, the Union filed a request with the Wisconsin Employment Relations
Commission (WERC) to initiate grievance arbitration over an alleged violation of the
bargaining agreement as a result of the City's failure to award overtime work to Walter
employee in the Waste Water Treatment Plant. The Union requested the appointment of a
of the WERC staff to arbitrate the issue. The undersigned was designated to hear the dispute
hearing was conducted on March 10 and April 2, 2003. The proceedings were not
parties filed briefs on May 9, 2003, and reply briefs by May 24, 2003, whereupon the record
The parties were unable to stipulate to the framing of the issues. The Union
frame the issues as follows:
Did the City violate the Working Conditions Agreement, its
attendant practice and
understandings between the parties, and the Consent Award of November 9, 2000, regarding
166, No, 59169, MA-11205, on August 31, 2002, when it assigned lab work to a
employee and overtime work to employee Joseph O'Boyle, and on September 9, 2002, when
assigned overtime to employee Joseph O'Boyle and therefore in both instances denied another
employee, Walter Kloske, the opportunity to accept or decline such overtime which he,
O'Boyle, was entitled to?
If so, what is the remedy?
The City would frame the issues as follows:
Did the City violate Article VIII, Section 2, or the Overtime
Equalization Memorandum of
Understanding when it:
1. extended O'Boyle's shift on August
31, 2002, and
2. offered O'Boyle overtime on
September 9, 2002?
If so, what is the remedy?
The Arbitrator frames the issues as follows:
Did the City violate Article VIII of the Working Conditions
Agreement, or the Overtime
Equalization Memorandum of Understanding, when it offered overtime to Joseph O'Boyle
of Walter Kloske on August 31, 2002, and September 9, 2002.
If so, what is the appropriate remedy?
OVERTIME AND HOLIDAY PAY
. . .
Section 2 For emergency and
non-emergency overtime, each division shall post in all other
divisions, once a year, or more often if deemed necessary, a list of employees with space for
employee to indicate whether or not he wishes to be called in for regular overtime work.
employee has indicated that he does not wish to be called in for overtime work, he shall not
unless that employee is needed due to his specific skills or due to the non-availability of a
number of employees desiring overtime work. Overtime shall be divided as equally as
the qualified employees of the division, then divided as equally as possible among the
employees outside the division, except as otherwise provided in this Agreement, who have
indicating their desire for overtime. The overtime of employees shall be posted. In the
event of an
emergency, all employees may be required to work overtime, however, those employees who
indicated a desire to work overtime will be called first provided the employee's normally
division shall not be used for the equalization of overtime language contained herein.
. . .
Section 5 Overtime
shall be divided as equally as possible on a calendar year basis among
qualified employees in a division. Overtime of employees shall be posted. Part-time and
employees will not be assigned overtime except in cases of emergency or when all permanent
employees are working overtime or when permanent employees are unavailable for overtime
. . .
AFSCME LOCAL 1366
PROPOSED OVERTIME EQUALIZATION PROCEDURES
December 21, 1999
1. There will be one list of all employees in the
division where employees will indicate their
interest in working overtime. This list shall be in order of the employees' seniority dates.
2. There will be records that
will be used by the individual who is calling employees when
overtime is available. The list will indicate the date that overtime was offered, the time the
employees were called, what job the overtime was in and its qualifications for the job,
the individual was contacted and whether or not the individual accepted or declined the
offered overtime. Accepting or declining an offer of overtime will be considered as having
worked that overtime.
3. Every pay period the Employer will post a listing
of overtime offered, worked and/or declined
for the pay period and year to date. Overtime opportunities shall be offered first to the
employee who has the lowest overtime total.
. . .
The City and the Union have, over the years, disputed over the interpretation of the
equalization language contained in Article VIII of the Working Conditions Agreement, which
resulted in a number of arbitration awards interpreting the provision. In City of Fond du
WERC Case 146, No. 57312, MA-10587 (Mawhinney, 10/92), Arbitrator Karen Mawhinney
that overtime equalization must be by division, not job classification, and that the Waste
Treatment Plant constituted a separate division. Thus, contingent upon qualification to do the
overtime within the plant is to be equalized among all employees, regardless of classification
arbitrator instructed the parties to develop a mutually agreeable procedure for effectuating the
equalization language. The result of this award was the Memorandum of Agreement set
In City of Fond du Lac, WERC Case 166, No. 59169, MA-11205 (McGilligan,
Arbitrator Dennis McGilligan issued a consent award incorporating a stipulation entered into
parties concerning overtime equalization procedures in the Waste Water Treatment Plant.
pertinent portions of that stipulation for the purposes of this grievance are:
. . .
4. The parties agree that the employee qualified for
the position requiring overtime who has the
least amount of overtime as of the prior payroll period shall be the first employee called and
given the opportunity to accept or decline the overtime assignment.
. . .
7. Employees contacted for an
overtime assignment shall either accept or decline the assignment.
In the event the employee is not reached for whatever reason (i.e., busy signal, not at home,
no answer, etc.), it will not be counted as a "decline." The next qualified employee for the
overtime assignment will be contacted and so on until the position is filled. The Union
that the non-contact opportunities will not be considered in any claim against the City
regarding overtime equalization.
. . .
That is the contractual and arbitral history that forms the backdrop for the instant
The Waste Water Treatment Plant employs a number of persons within several job
classifications, including Operations Crew Leader (OCL), Influent Pump Station (IPS)
Secondary Treatment Operator (STO), ZIMPRO Operator and Maintenance worker. It
around the clock and has three work shifts 12:00 a.m. to 8:00 a.m. (first),
8:00 a.m. to 4:00 p.m.
(second) and 4:00 p.m. to 12:00 a.m. (third). According to the terms of Arbitrator
award and the Memorandum of Agreement, overtime is to be equalized among all employees
the plant, contingent upon qualification to do the work. The Grievant has been employed by
since 1999 as a STO. He is qualified to perform the functions of all the positions in the
ZIMPRO Operator and on weekends he also occasionally performs the work of Lab
Graham, who does not work weekends, while on second shift.
August 31 Overtime
Under the terms of the Memorandum of Agreement, the City maintains a running
overtime within the plant for equalization purposes. As of August 30, 2002, the Grievant
accumulated 77.75 hours of overtime. Two employees, Steve Durocher and Brian
less accumulated overtime than the Grievant at that time; all the other employees had more.
On Saturday, August 31, 2002, the Grievant was scheduled to work second shift and
assigned to the Lab Technician's duties that day. The previous night, however, one of the
employees had called in sick, creating a vacancy in IPS. The Crew Leader called Durocher,
Huelsman and IPS Operator Al Lietz, although not the Grievant, but could not find a
He then called the plant Chemist and Acting Operations Manager, James Kaiser, and
of the problem and told him he had called everyone on the overtime list. Kaiser
to contact the Lab Technician, Graham, to come in on Saturday, and then made
make sure all positions were covered. Thus, the Crew Leader was assigned to handle IPS
the Grievant was assigned to STO duties during second shift, leaving the lab work
went to work at 5:30 a.m. on August 31 and saw STO Operator Joe O'Boyle, who was
shift, and offered him 4 hours of overtime to do the lab work during second shift, to which
agreed. Kaiser, himself, took the remainder of the hours. O'Boyle ended up working one
August 31, but received 4 hours of overtime per his agreement with Kaiser. At the time,
had more accumulated overtime than the Grievant.
September 9 Overtime
On September 9, 2002, the City had a need for someone to work overtime on the
which was known beforehand. On approximately September 5 or September 6, Kaiser began
someone to work the overtime shift, which he preferred to do in person. The
Grievant had last worked on September 4 and was not scheduled to work again until
On September 5, Kaiser called the Grievant at home to offer him the overtime, but got an
machine so he left no message. By the afternoon of Friday, September 6, Kaiser had still
anyone to work the overtime, so called the Grievant again at 4:10 p.m. and again got
machine. This time he left a message that the overtime was available and the Grievant
him if he wanted it. At 4:30, Kaiser saw O'Boyle at the plant and offered him the overtime,
O'Boyle accepted, so he called the Grievant's machine again and left a message that the
filled. Kaiser told Crew Leader Paul Rawlsky the status of the overtime situation and went
5:15. At the time, O'Boyle still had more accumulated overtime than the Grievant.
Shortly after 5:00 p.m. on September 6, the Grievant returned home and received
messages. He then called Kaiser's office to accept the overtime, but Kaiser had already left
day. He also called the Secondary Treatment Plant and Kaiser's home and left messages
wanting the overtime. After receiving the Grievant's message, Rawlsky called Kaiser and
the Grievant had accepted the hours. Kaiser told him to call the Grievant and tell him the
been given to O'Boyle, which he did. Thereafter, the Grievant made several unsuccessful
to contact Kaiser throughout the weekend and finally called Operations Manager John
Saturday afternoon. He explained the situation and Leonard told him that O'Boyle would
On Sunday, September 8, Crew Leader Al Lietz, who had learned of the situation
Grievant, called Kaiser and told him the Grievant should have had the chance to refuse the
At the end of the discussion, Lietz was under the impression the Kaiser was going to give the
overtime to the Grievant. Kaiser then called the Grievant to ask if he still wanted the hours,
he said he did. The Grievant was under the impression that Kaiser was offering the work to
assumed that he would get the overtime. Kaiser then called O'Boyle. O'Boyle had
spoken to Leonard, who assured him he would get the overtime, so he refused to give up the
Kaiser then called the Grievant back and told him O'Boyle wouldn't give up the hours and
work the overtime.
On September 18, the Grievant filed a grievance on the refusal of overtime for both
31 and September 9. The grievance was denied and the parties pursued the matter through
of the contractual grievance procedure to arbitration. Additional facts will be referenced, as
necessary, in the discussion section of this award.
POSITIONS OF THE PARTIES
August 31 Overtime
The Union contends that by past practice the weekend lab work was bargaining unit
should have been done by a bargaining unit member. James Kaiser is the Plant Chemist and
bargaining unit member, so he should not have worked the overtime hours
on August 31. The Grievant was supposed to have worked in the lab, but was moved
to STO due
to the vacancy, at which point the overtime equalization procedures should have been used.
should have realized that the Crew Leader had not called all the employees and should then
offered the hours to the Grievant instead of splitting the hours between himself and another
with more accumulated overtime. Even though he was already working he could have
shift to do the lab work, as well.
September 9 Overtime
The November, 2000, consent decree requires that employees offered overtime under
parties' equalization procedures be given an opportunity to accept or decline the overtime. A
answer" is specifically stated to not be considered a decline. The clear intent of the language
make sure the employees entitled to the hours have a meaningful opportunity to accept or
them. A decline is only recorded when an employee has the opportunity to exercise his or
to the hours and chooses not to do so.
Department management admitted they waited until the week before September 9 to
vacancy even though they new of the need long before and then tried to contact the
person. The Grievant was off work at the time, and Kaiser couldn't reach him directly by
kept trying, indicating he was aware of the Grievant's right to accept or decline the overtime.
Kaiser's recognition of the Grievant's rights was again shown when he called the Grievant on
September 8. Although the City argues that Kaiser did not offer the Grievant the overtime at
time, the testimony of the Grievant suggests otherwise, which explains why Kaiser had to
later and tell the Grievant not to come to work after Joe O'Boyle refused to give up the
John Leonard supported him.
There is nothing in the contract or the consent decree that prevents taking away
once it's offered. Leonard stated that such is Department policy, but could offer no evidence
support of his assertion. In fact, the evidence suggests that in the past overtime assignments
been taken away. Thus, the City would have been at little risk of a successful challenge by
if the overtime had been taken from him and given to the Grievant. In sum, there is no
excuse for the
Grievant not receiving the overtime on August 31 or September 9. The grievance should be
and the Grievant be given 16 hours pay at time and a half.
These grievances both arise under the parties' contractual agreement to equalize
Of particular importance is the consent award of November 9, 2000. Paragraph 4 states that
employee with the least amount of accumulated overtime is to have the first opportunity to
or decline overtime. Paragraph 7 states that if the employee cannot be
reached, the next qualified employee is contacted, but that the "no answer" doesn't
count as a decline
by the first employee for record keeping purposes. Clearly, in the consent award as well as
Memorandum of Understanding, the parties recognized the need for overtime to be assigned
and efficiently. This grievance alleges violations of the overtime equalization provisions, but
claims must fail.
August 31 Overtime
The City maintains it has the right under Article XXVII of the contract to schedule
as it sees fit and to assign employees to positions in the Water Treatment Plant as long as it
violate Article VIII, Sections 2 and 5. Normally, the Grievant does lab duties on the
in this case he was reassigned to STO in the shuffle that took place due to the sudden
absence in IPS.
It is preferable that lab duties be done at the same time each day, so the City sought workers
in the lab during second shift on August 31, while the Grievant was performing STO duties,
overtime during that period. The Grievant was already working at that time and so was
have worked the overtime. Thus, the hours were split between Jim Kaiser and Joe O'Boyle,
were available. The Grievant has no right to the weekend lab duties, nor can he require the
schedule overtime to accommodate his schedule, so he has no claim.
The Crew Leader mistakenly did not call everyone on the overtime list. Had he done
might not have been necessary for Kaiser to work. Instead, he split the shift with O'Boyle
generally the City doesn't want employees working double shifts. In any event, the Grievant
not have taken the overtime hours because he was already working that shift. Thus, the
nothing because he was paid for working his regular shift. The Union believes he should
called in early, but the City was under no obligation to schedule the overtime hours for a
the Grievant was available. The City did not violate the contract by scheduling the overtime
as it did
and the grievance should be dismissed.
September 9 Overtime
The Union is barred from filing this grievance by the language of the consent award,
states that non-contact opportunities will not be considered in any claim against the City
overtime equalization. It is undisputed that the City attempted to contact the Grievant about
September 9 overtime opportunity prior to offering it to O'Boyle. The Grievant wasn't home
he was called. So he could neither accept or decline thus it was a non-contact
consent award unambiguously prohibits filing any claim in such a case, so the grievance
Also, once the overtime was assigned to O'Boyle, the Grievant had no further claim
to it. The
Grievant's attempts to contact Kaiser to claim the overtime were to no avail because once the
overtime is filled, the matter is closed. This was made clear by Leonard when the
Grievant contacted him to ask that the overtime be given to him instead of O'Boyle.
At some point,
the system must allow the City some assurance that the schedule is final so that it need not
be anticipating last minute changes. Thus, as long as the City has followed the overtime
and the overtime is assigned, it is entitled to consider the matter closed and need not
claims of other employees to the hours.
The City properly followed the procedure mandated by the consent award in
overtime. Kaiser could not reach the Grievant, so he was bypassed as provided in Paragraph
other employees were contacted. When no one could be found to work, Kaiser called the
again and again he could not be reached, so when Kaiser saw O'Boyle he was entitled under
consent award to offer him the hours, which he did. The Union would have the Arbitrator
consider Paragraph 4, which says the employee should be given an opportunity to accept or
the hours, but it must be considered along with Paragraph 7, which allows the City to
search in a "no contact" situation, but does not penalize the employee by treating the "no
as a decline. To sustain this grievance would set a dangerous precedent because it would set
constant "bumping" among employees seeking to assert their overtime rights, which would
constant confusion and many more grievances. The current system, which the City followed,
overtime to be assigned efficiently and expeditiously, while providing the Union members
equalization of hours on an annual basis.
The Union in Reply
August 31 Overtime
The Union does not dispute the City's right to assign work and
determine overtime, only the
way it was done. The lab work did not need to be done during the Grievant's shift, as
the fact that Kaiser and O'Boyle began the lab work before the shift started. The City had
obligation to determine that all eligible employees were called and that the work was offered
bargaining unit members before Kaiser took the hours. This did not happen because the
did not call everyone on the list. The City should have scheduled the lab work to be done
Grievant's shift and offered the work to the Grievant.
September 9 Overtime
The City argues that the Grievant has no claim because the consent award precludes
based on non-contact opportunities. This is only the case if the City otherwise complied with
award. In order to make a fair judgment, the entire award and the record as a whole must
considered. The City knew of the vacancy long in advance and yet waited until just before
opening to offer the hours, at a time when the Grievant was on vacation. Had the City acted
it could have contacted all the employees personally. Also, Kaiser did not
initially leave a message for the Grievant when he called on September 5, which he
had no obligation
to do. He did leave a message after the second call, however, which suggests that he was
a response. He also called the Grievant back and offered him the overtime again after the
already been assigned to O'Boyle. The record permits the inference that Kaiser was trying
a mistake, but was prevented by Leonard's insistence that O'Boyle work the hours even
decision was not based on any apparent policy or practice. The City cannot have it both
cannot say that the consent award precludes a claim and also not be held accountable for how
implements the decree.
The City also argues that the Grievant was not entitled to the hours once they were
to O'Boyle. There is no evidence that any such policy or practice exists, written or
Further, there is no danger of the chaos that the City envisions if the grievance is sustained,
employees are "bumping" one another to work available overtime. If the Grievant had had a
reasonable opportunity to accept or decline the overtime there would be no claim. What is at
here is whether he received such an opportunity. If a good faith effort is made to assign
accordance with the decree, no undue confusion will result.
The City in Reply
August 31 Overtime
The City asserts that the work performed by Kaiser on August 31 was not exclusively
bargaining unit work. The contract gives management the right to direct the workforce.
arbitrators have held that, absent specific contract language to the contrary, management can
work outside of the bargaining unit in certain instances. The contract does not expressly
managers from doing bargaining unit work and Kaiser's duties overlap those of the lab
so there was no violation of the contract. Arbitrators have held that employers can where, as
there is a business justification bargaining unit work can be performed by management. The
in a position where it had to fill the hours on short notice and Kaiser did his best to use
unit personnel, only assigning himself to a few hours in the last extremity. It is the Union's
to show that lab work is exclusive to the bargaining unit and it has failed to meet that
also had no way of knowing that the Crew Leader had not called everyone on the overtime
he did not see the call sheet until the next week. He did the best he could, even trying to
regular lab technician who had not signed up for overtime, before assigning himself.
Finally, as noted
in the City's initial brief, the Grievant was already working during the shift wherein the
and so could not have taken the hours. He, therefore, suffered no injury as a result of the
actions on August 31.
September 9 Overtime
The Union misconstrues Arbitrator McGilligan's consent award by arguing that until
eligible employee responds to an overtime offer the City cannot seek someone else to fill the
Paragraphs 4 and 7 must be harmonized in recognition of those instances where an
employee cannot be reached. Paragraph 7 contemplates this situation by providing that
who cannot be reached can be bypassed without having the non-contact counted against him.
The City made a reasonable attempt to contact the Grievant, but he was not at home,
contacted other employees, as provided in the consent award. The Union implies that Kaiser
the Grievant was still entitled to the overtime after it was assigned to O'Boyle, but this is not
He initially contacted the Grievant twice because no one else took the hours. Later, he was
attempting to mediate the dispute between the Grievant and O'Boyle, but he did not offer the
to the Grievant or say they would be taken from O'Boyle. Once the overtime was assigned
O'Boyle, it was assumed that he would perform it. There is no history of overtime being
once it is assigned and such a policy would create an untenable situation where employees
bumping other employees for overtime, leading to a rash of grievances. The current system
efficiency and finality, whereas the Union's proposed alternative would create confusion.
This grievance in essence alleges two violations of the same contract provisions
a two-week period, but under different sets of circumstances. For purposes of clarity, this
address the two incidents separately.
August 31 Overtime
In this instance, the City was in a position of needing to fill an IPS shift on very
due to the illness of an employee. This circumstance thus created overtime within the
and it is undisputed that at the time, the Grievant had accumulated less overtime than the
who ultimately was assigned the hours. Because the Crew Leader had been unsuccessful in
someone to come in, the situation required the Assistant Operations Manager to restructure
workforce in order to cover the vacant position. He did this by offering four hours of
a worker coming off a regular shift and by taking four hours himself.
The Union asserts that the weekend lab work is bargaining unit work and that
Operations Manager Jim Kaiser should not have assigned the overtime to himself. The
not support the underlying premise that weekend lab work is exclusively bargaining unit
noted in the cases cited by the City, for work to be considered exclusive to the bargaining
requires specific language to that effect in the contract or a clearly established practice.
those elements exists here. While weekend lab work is typically done by bargaining unit
it is not clear that the work is entirely reserved to them. It should also be noted that, from
perspective, there were no alternatives
because no one but O'Boyle had agreed to work. He did not know that the Crew
Leader had not
contacted everyone on the call list. Thus, in his view taking some of the hours was the
to asking O'Boyle to work a double shift.
More to the point, the Union maintains that all the hours should have been offered to
Grievant prior to O'Boyle, based on their respective numbers of accrued overtime hours at
If one were to consider the overtime equalization provisions in a vacuum this argument
undoubtedly have merit. There is no question that the equalization scheme is designed so
that at any
given time the qualified employee with the least number of accrued hours is to be offered
overtime. One must also consider, though, a couple of other salient points.
First, the overtime hours were available during the second shift on August 31, when
Grievant was already scheduled to work. Logically, there is no way the Grievant could have
working overtime at the same time that he was working his normal shift. One can assume
scenario arises from time to time, where an employee otherwise entitled to first refusal of
overtime is already working and so is passed over and the offer is made to the next person
on the list.
In any event, even had the Crew Leader called all the employees on the overtime list, the
would still have been ineligible because he was already scheduled to work.
The Union counters this observation by asserting that the City could have scheduled
overtime hours either earlier or later to allow the Grievant to work the hours. This is
true, but, in my view, to impose an obligation on the City to schedule overtime
in such a way that it
accommodates the employee lowest on the equalized overtime list would invade management
and would unduly burden the employer. Article XXVII of the contract, the Management
clause, vest in management the right to determine schedules of work, as well as the right to
the methods, processes and manner of performing work. Inherent in these rights is the
determine when particular work needs to be done. In this case, the Operations Manager,
Leonard, testified that the preferred time for the weekend lab work to be done was during
shift and even the Grievant agreed that was the current practice.
When reading contract provisions that appear to be in conflict, it is necessary to try
reconcile them in some rational manner. I find it more reasonable to read the provisions in
such a way
that overtime hours are to be offered to the available, that is unscheduled,
employee with the fewest
accrued overtime hours. This preserves management's prerogative to schedule overtime
times most beneficial to the enterprise, but protects the principle of equalization among those
employees qualified and available to do the work. It also avoids putting management in the
position of having to organize the operations of the workplace around the employees'
entitlement to overtime, which would be the tail wagging the dog. Particularly in a situation
this, where the employer needed to find a replacement and reorganize work schedules on
it would be unduly burdensome to
also require it to predicate its decisions about when to schedule overtime on which
lowest on the overtime list at any given point. Thus, I find that the City did not violate the
or consent award in failing to offer the overtime on August 31, 2002, to the Grievant.
September 9 Overtime
This was a situation where the City knew sometime in advance that it would have a
on the day in question, and thus had ample time to contact the employees available and
entitled to the
opportunity for overtime. In the event, when Kaiser began seeking someone to work the
Grievant was off work, leading to the telephonic confusion related above and the ultimate
of O'Boyle, who again had more hours of accrued overtime at the time than the Grievant.
The City maintains, in the first instance, that the Union is precluded from bringing
by the language of the consent award, which states that non-contact opportunities will not be
considered in any claim against the City regarding overtime equalization. The Union
this language was not entitled to give the City carte blanche regarding contact procedure and
the City's practice is not reasonable the Union should not be prevented from grieving it. My
is that this is not a non-contact case.
I interpret the language of Paragraph 7 essentially in the same way as the City. That
is to say,
if the City tries unsuccessfully to contact an employee for overtime, it is then entitled to
move on to
the next person on the list and so on until it reaches an employee who agrees to work the
Employees otherwise entitled to the opportunity, but unavailable when contact was attempted,
not later grieve on the basis that they were not given an opportunity to accept or decline.
pro quo for this is that the non-contact is also not treated as a decline, which would
result in the hours
being attributed to the employee as if he had worked them. This way, the employee will get
opportunity the next time overtime is available. At the same time, the City is not hamstrung
it needs to fill overtime hours, but the employee most entitled to the opportunity cannot be
If one were to interpret the consent award to require that the employee lowest on the list had
accept or decline before the hours could be offered to another employee, the employer would
conceivably not be able to fill the overtime if the employee could not be reached. Had the
not gotten Kaiser's message or otherwise learned of the overtime opportunity until after the
would be the situation here, but that is not what happened.
In this case, the Grievant first learned of the available overtime on the afternoon of
September 6, when he received Kaiser's message on his answering machine. The problem
was that between his getting the message and his reaching Kaiser the hours had already been
to O'Boyle. In fact, Kaiser spoke to O'Boyle less than half an hour after calling the
Thereafter, the Grievant made numerous phone calls to the plant, as
well as to both Kaiser and Leonard at home prior to September 9 in an attempt to
exercise his right
to claim the overtime. Leonard was adamant that O'Boyle would work the hours, but Kaiser
more equivocal and attempted to mediate the situation, but O'Boyle was determined to work
hours and ultimately did so. This, therefore was not a non-contact situation, because the
did learn of the overtime beforehand and, but for the intervening offer to O'Boyle, would
able, and probably allowed, to work it.
The chronology of events on September 6 reveals that the Grievant missed Kaiser's
about an hour. The Grievant called in a few minutes after Kaiser had left work and left a
with the Crew Leader. The Crew Leader, in turn, called Kaiser between 6:00 p.m. and 7:00
tell him that the Grievant was willing to work the hours. Thus, Kaiser was aware of the
availability by 7:00 p.m. on September 6, but had already offered the hours to O'Boyle, so
the Crew Leader to tell the Grievant the overtime was filled. Here, then, is a situation
Grievant, who was lowest on the overtime list, was aware of the overtime in advance and
attempting to exercise his right to it, but was precluded by management because the work
been offered to another employee. The question then becomes, did the supervisor err in
overtime to the Grievant and then giving it to O'Boyle before the Grievant had an
respond? I find that he did.
The Union argues, with some merit, that there is no established policy regarding the
withdrawing of overtime after it is assigned and believes, therefore, that the Grievant should
been able to "bump" O'Boyle. The City's witnesses asserted that such a policy existed and
overtime, once assigned, is not to be withdrawn, but could offer no documentary evidence of
nor point to any established practice. By the same token, there is no history of overtime
reassigned either. Given that state of affairs, I do not consider the existence or non-existence
a policy as crucial to the question at hand.
There are two competing considerations, ably identified by the parties, which need to
reconciled. One is the integrity of the overtime equalization procedure and the other is the
a method of assigning overtime that promotes efficiency and certitude. As Arbitrator
observed in City of Fond du Lac, WERC Case 146, No. 57312, MA-10587 (Mawhinney,
among qualified employees the first consideration in assigning overtime should be
she instructed the parties to develop a procedure whereby overtime would be equalized
employees within each division, which resulted in the Memorandum of Agreement entered
December, 1999 (Jt. Ex. #8). Problems continued, however, which led to Arbitrator
consent award in City of Fond du Lac, WERC Case 166, No. 59169,
11/00) (Jt. Ex. #6), wherein the award codified a procedure to assure that the employees
least accrued overtime at any given time were given the opportunity for first refusal of
overtime. None of the foregoing decisions deal with this situation, however.
Essentially, the Union is asking the Arbitrator to expand Arbitrator McGilligan's
award to require the City to allow employees to bump other employees for available overtime
have less accrued overtime when the opportunity arises. Admittedly, this is a
narrow exception, which would only arise where an employee who had not had an
accept or decline overtime due to a non-contact subsequently learns of the opportunity after
overtime has been assigned to another employee and then makes contact seeking to accept the
overtime. I find this likely to be a sufficiently rare occurrence that no undo hardship will
result by not
letting the eligible employee bump, especially where the system is designed to equalize
annually and additional opportunities are likely to arise in the future. On the other hand,
bumping for overtime has the potential for creating mischief in the workplace. The employer
to be able to have assurance that once overtime is assigned it will be worked by the
delegated. Employees may be less likely to accept overtime if they fear other more eligible
may bump them at the last minute and discord in the workplace may result if and when that
Thus, policies would need to be developed for determining under what circumstances
be allowed and at what point the original assignment would stand. All in all, it would be a
cumbersome system likely to create more problems than it would solve. I do not believe this
calls for such a broad, sweeping remedy.
The breakdown in the system here was an oversight on the part of Assistant
Manager Kaiser, who notified the Grievant of the available overtime and shortly thereafter
the same overtime to O'Boyle without notifying the Grievant that he had done so. By
message on the Grievant's answering machine, the supervisor created a reasonable
the Grievant could accept the overtime, especially given the short passage of time between
of the message and the Grievant's response. The Grievant then tried, to no avail, to accept
overtime only to be informed secondhand that O'Boyle had been assigned the hours.
created a situation where two employees reasonably felt, for different reasons, they were
work the same hours. As the City pointed out, the supervisor need not have left a message,
fact, he did not do so when he called on September 5. Had he not done so on September 6,
would not have been a problem because the City would have complied with the non-contact
of the consent award and the Grievant would have remained eligible for the next opportunity.
other hand, the City needed to find someone to work and Kaiser did not know at the time
O'Boyle was available, so he wanted to make sure the message got to the Grievant if he
he spoke to O'Boyle, however, he should have called the Grievant again to tell him that the
had been assigned, at which point the matter would have been closed.
I view this case as being relatively limited to its facts. Thus, it is not necessary to
a massive revision of the overtime equalization procedure to insure such an event does not
again. All that would be necessary, in my view, would be for the City to adopt a
in cases where an eligible employee has been informed of the availability of overtime, but
has not had
an opportunity to respond. If the overtime is filled before the employee responds, call again
inform him that the overtime has been assigned and he will remain at the top of the call list
next opportunity. This did not happen here and had it, the ensuing confusion could have
For the foregoing reasons, and based upon the record as a whole, I hereby enter the
1. The City did not violate Article VIII of the Working Conditions Agreement,
Overtime Equalization Memorandum of Understanding, or the Consent Award of November
when it offered overtime to Joseph O'Boyle instead of Walter Kloske on August 31, 2002,
grievance is denied.
The City did violate Article VIII of the Working Conditions Agreement, the Overtime
Equalization Memorandum of Understanding, and the Consent Award of November 9,
it offered overtime to both Joseph O'Boyle and Walter Kloske on September 9, 2002.
The City shall make Walter Kloske whole by paying him 8 hours of backpay at time
and a half,
without interest, representing value of the lost overtime opportunity.
Dated in Fond du Lac, Wisconsin, this 18th day of September, 2003.
John R. Emery, Arbitrator