BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 2771, AFSCME, AFL-CIO
Gerald Ugland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
James Macy, Attorney at Law, Davis & Kuelthau, S.C.,
appearing on behalf of the County.
The Union and Employer named above are parties to a 1999-2001 collective
agreement which provides for final and binding arbitration of certain disputes. The parties
Wisconsin Employment Relations Commission to appoint an arbitrator to hear and resolve
grievance of Cary Ogden. The WERC appointed Steve Morrison, then a member of its staff,
arbitrator. Mr. Morrison held a hearing on May 13, 2003, in Waupaca, Wisconsin, but
parties filed briefs, Mr. Morrison left the employment of the WERC. The WERC
J. Mawhinney, a member of its staff, as the arbitrator to decide the case. The parties
briefs on September 26, 2003.
The parties did not stipulate to the framing of the issue. The Arbitrator finds that the
Did the Employer violate the collective bargaining agreement
when it took Cary Ogden off
the on-call rotation in 2002? If so, what is the appropriate remedy?
The Grievant is Cary Ogden, who has worked for the County for 13 years. He was
outreach prevention specialist, Social Worker II, for the last seven years. He provides case
management services, targeted case management, and inpatient hospitalization coordination.
also a member of the on-call after-hours team 12 years and scheduled employees for the last
The on-call system takes care of issues arising after regular working hours, such as
detentions and inpatient hospitalizations.
The regular work schedule is 7 and ¼ hours a day, or 36 and ¼ a week.
Overtime at time and
a half does not kick in until an employee reaches 40 hours a week. Employees are paid
week for being on call. On-call employees also get compensatory time for actual time
are actually three on-call systems one for the nursing unit, another for juvenile
justice and the child
welfare unit, and a third that handles emergencies in the mental health and alcohol and drug
emergencies. The Grievant is in the last group. Some employees may serve in more than
In the spring of 2002, Alan Stauffer was the Grievant's direct supervisor. He spoke
about his overtime and learned that he Grievant was carrying a pager after hours when he
on call. The Grievant said he was making himself available for calls from hospitals, doctors,
Stauffer told him that he was concerned that the Grievant was exacerbating his accumulation
overtime or compensatory time. Stauffer told him to stop carrying a pager when he was not
and not on call.
On August 29, 2002, the Grievant was out in the field and paged by Dr. James Fico,
clinical coordinator for the Department of Health and Human Services. He asked that the
take the rest of the day off as well as the next day, a Friday. The Grievant indicated that he
do that, because he was with a client at a clinic for an assessment and treatment meeting.
if he was being laid off or told that he could not come to work, and he was told that he
to take some time off to resolve the compensatory time issue. The Grievant said he had an
appointment schedule for the next day and he could not take the day off. He got back to the
about 4:00 p.m. on Thursday and received an e-mail message from Stauffer stating that he
directed not to work any compensatory time without specific verbal or written permission
the compensatory time event.
The Grievant worked on August 29, 2002, and did not use any compensatory time on
day. He took the next day, a Friday, off as a vacation day.
On September 4, 2002, Stauffer sent the Grievant an e-mail note that stated:
This is to notify you that you continue to be instructed, per article
13.04, that you are not to earn
any overtime or compensatory time without specific verbal or written approval from either
Dr. Fico. At this time until you are
able to reduce your total comp time on the books to a level that is
approved by management by
taking comp time off we do not intend to authorize any comp time. Because the earning of
time while on call under article 14.02 is governed by article 13.04 including approval of the
of comp time by management and the fact that at this time approval is not granted you are
not qualified to be on call. Until further notice you will not be put on the on-call schedule
mental health unit.
Stauffer and the Grievant also met on September 4, 2002, and discussed the
time. Stauffer indicated that the Grievant's compensatory time totals were too high. The
had accumulated about 68 or 69 hours, and he could accumulate 72 and a half hours as
the bargaining agreement. After 72 and a half hours, overtime hours are paid in cash.
wanted the Grievant to take time off during his regular schedule during the day to use up the
compensatory time. The Grievant told him that he planned on taking time off in October of
and had told Stauffer that also in August. The Grievant believed that he usually took his
compensatory time as time off rather than being paid for it. The Grievant planned on using
days in October of 2002. He usually accumulated about two to six hours of compensatory
serving a week on call.
The Grievant volunteered to be on call for 12 years. At times, only two volunteers
maintained the rotation schedule and he asked management to look for more volunteers. He
know of any time where the Employer refused to allow someone to be on call.
The Grievant was not put on the on-call rotation from early September until
2002. No one was willing to volunteer for that rotation. Stauffer told him on October 30,
he was eligible to be on call again because his compensatory time balance was at an
Michael Phalen has been a social worker with the County for 24 years and is on the
board of the Union. He served on call for 14 years and he was not aware of anyone except
Grievant that was taken off the on-call rotation.
Stauffer has had people available for on-call duty but not been able to use all of
social workers are trained in the juvenile justice system and would be eligible for on call in
But Stauffer has not agreed to having all of them being on call. He could not recall a time
anyone was forced to be on call.
Management has been historically concerned about the pay out of overtime and
it for several years. Supervisors receive reports on the status of employees' compensatory
and pay out of overtime every two weeks, as well as year-end reports. Stauffer has talked to
employees about their compensatory time banks as the banks grow larger and the end of the
grows nearer. The County has preferred that employees take the time
off rather than pay them for the overtime, due to budgetary concerns. The County has
encouraged employees to take time off instead of cash. The Grievant was never mandated to
compensatory time off.
THE PARTIES' POSITIONS
The Union asserts that the contract provides a limitation for compensatory time, and
Employer imposed a limit different from that contractual provision. Article 14.02 provides
service and clearly provides that on-call employees will receive, in addition to the differential
compensatory time for actual time worked. The regulation of that compensatory time is
by Article 13.04, which provides for crediting of compensatory time. Article 13.05 limits
accumulation of compensatory time up to the employee's two week schedule.
The Union notes that the Grievant's understanding of the voluntary system is that the
employee is the volunteer. The Grievant has been involved in the on-call program for 12
was not aware of the Employer ever refusing to allow an employee to volunteer for on-call
The Union states that the Employer's ultimatum was contrary to the contract and that
Employer made an unreasonable demand to take time off in August of 2002. The Employer
the Grievant to flex his time off or to use his compensatory time. There is no provision for
scheduling in the contract. The Employer insisted that the Grievant take off the rest of the
August 29 as well as August 30, 2002. The contract provides for a normal work week and a
work day. Fico wanted to interfere with the application of the contract by insisting that the
take off the rest of the day on August 29th and not come to work on August
30th. The contract
provides that scheduling of compensatory time shall be arrived at mutually between the
The Union contends that the Grievant's removal from the on-call rotation violated
14.02. The Grievant was still a volunteer and was removed from the on-call rotation against
The Union asks that he receive on-call pay for the time he was denied access to that rotation
August 29 to December 24, 2002. The Union further asks that the Grievant be provided
compensatory time that was accrued by the person who took his place in the on-call rotation.
Union also asks that the Employer be directed to cease and desist from requiring the
Grievant to take
compensatory time off at times when he has not agreed mutually to be off using
and that the Employer be directed to cease and desist from requiring the Grievant to flex his
to avoid additional accrual of compensatory time.
The County submits that because neither overtime nor a position on the on-call
guaranteed by the contract, the withdrawal of the Grievant from the on-call rotation was
management rights. The management rights gives the County the exclusive right to maintain
efficiency of operations and determine the amounts of services to be performed. The
language is not
ambiguous, and it was undisputed at the hearing that the County has wide discretion in
the number of employees to be placed on the on-call rotation.
Additionally, the County asserts that there is no guarantee of overtime in the
bargaining agreement. There is no guarantee of on-call duties either. Participation in the
system in voluntary, except the least senior employee may be required to be on call when no
volunteers. At times, there have been more volunteers than necessary to staff the on-call
and at times, managers have elected not to have certain employees be on call.
The County had legitimate concerns over its financial resources to continue to pay out
compensatory time not used at the end of the calendar year. The County's actions are
given the fact that the Grievant was only removed from the on-call rotation for a limited
time to allow his compensatory bank balance to be lowered. The Grievant was not forced to
compensatory time without the mutual agreement required by the contract. The County
exercised its right to make efficient decisions regarding overtime costs.
In Reply, the County
The County submits that it did not impose an unreasonable limitation on the
compensatory time. To the extent that the Grievant argues that he lost overtime
being removed from the on-call rotation, his grievance must be denied because there is no
of overtime in the bargaining agreement. Likewise, there is no guarantee of on-call duties in
agreement. There is no guarantee that one would ever be placed on the on-call rotation, and
have been more volunteers than necessary to staff the on-call rotation at times.
The Union cannot be permitted to argue issues which it specifically waived at the
The Union argued in its brief that it was a violation of the agreement for the County to
create flexible scheduling. While the Grievant started his testimony by stating that he felt the
was forcing him to use compensatory time without mutual agreement required by contract, he
indicated that this issue was not part of the grievance. The Grievant admitted that the
County did not
require him to use any compensatory time without his mutual agreement. Arguments waived
hearing or raised for the first time in reply briefs should not be considered.
The starting point, as always, is the contract language. There are several relevant
in this case.
ARTICLE 2 MANAGEMENT RIGHTS
2.01 The Employer possesses all management rights except as
otherwise specifically provided
in this agreement and applicable law. These rights include, but are not limited to the
. . .
F) To maintain the efficiency of operations;
. . .
I) To determine the kinds and amounts of services to be
performed as pertains to the operations
and the number and kinds of classifications to perform such services;
. . .
ARTICLE 13 NORMAL WORK WEEK AND WORK
13.01 The normal work week and the normal work day shall
as follows: The normal work
week shall be 36.25 hours per week to be worked in five (5) consecutive 7.25 hour days,
through Friday. The normal hours of work shall be from 8:00 a.m. to 4:00 p.m., 45 minute
. . .
13.04 Employees shall be paid at their
regular hourly rate for any hours worked in a normal
work week in excess of 35.25 hours up to 40 hours per week, or compensatory time at the
time may be taken. Employees shall be compensated at the rate of time and one-half of the
employee's hourly rate of pay for all hours worked in excess of 40 hours per week. In lieu
overtime pay (time and one-half), employees may receive compensatory time off. Such
time shall be granted at time and one-half for time worked in excess of 40 hours in the
week. Scheduling of such compensatory time shall be arrived at mutually between the
department head. All time paid shall be considered time worked for overtime pay and
time purposes, including time and one-half.
13.05 Compensatory time may be accumulated up to the
employee's regular two week
schedule. If at the end of any given calendar year compensatory time remains on the books,
employee shall receive the appropriate dollar equivalent. Such compensatory time earned at
time rate shall be paid out at the appropriate dollar equivalent. Such equivalent shall be
by multiplying the employee's applicable rate by the number of hours or parts thereof
. . .
ARTICLE 14 CALL-IN/REPORTING
PAY AND ON-CALL PAY
. . .
14.02 Professional Employee On-Call Pay. Differential pay
be paid at the rate of $1.00
per hour for each hour of on-call (e.g., in Community Services Division, $131.75 for each
who is on-call for an entire week. The $131.75 is arrived at by taking the total number of
the week (168 minus the 36.25 work hours), with the balance of $131.75.) For all
employees, it is
understood that participation in the on-call systems is voluntary, except that the least senior
employee may be required to be on-call when volunteers are unavailable. On-call employees
receive, in addition to the differential pay, compensatory time for actual time worked. Such
compensatory time shall be granted on an hour for hour basis and figured in fifteen (15)
increments. Such compensatory time shall be granted in accordance with the provisions of
The Employer is correct the bargaining agreement has no guarantee of
overtime or on-call
assignments. The fact that on-call duty is voluntary certainly weighs against the Grievant.
appears to believe that once he volunteers, the Employer has to accept his service, that it not
The Employer did not violate the contract by taking the Grievant off the on-call
It had a reasonable basis for doing so and did not abuse its discretion to maintain efficiency
determine the level of services. While the Employer was far out on a limb when it told the
to take a certain day off and part of another day off without his mutual consent, the Grievant
acquiesce and cannot grieve what never happened. The grievance is only over the denial of
duty and the denial does not violate the contract.
The Union argues that Article 13.05 limits accumulation of compensatory time up to
weeks or 72.5 hours, and the Grievant had not yet reached that limitation. However, the
states that employees may accumulate up to two weeks. There is nothing that
that much overtime accumulation.
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin this 10th day of October, 2003.
Karen J. Mawhinney, Arbitrator