BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY SHERIFF DEPARTMENT
Aaron Halstead, Attorney at Law, Shneidman, Hawks & Ehlke,
S.C., appearing on behalf of the Union.
James Kalny, 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 that provides for final and binding arbitration of certain disputes. The parties
Wisconsin Employment Relations Commission to appoint Steve Morrison to hear and resolve
bulletin grievance. Mr. Morrison held a hearing on June 17, 2003, in Green Bay,
the hearing, but before the parties filed their briefs, Mr. Morrison left the WERC. Karen J.
Mawhinney was assigned to issue the award. The parties completed filing briefs on October
The parties did not stipulate to the framing of the issues. The Union would frame
Did the County violate Article 9 of the collective bargaining
agreement when it failed to assign
Sergeants Tim Johnson and Mary Schartner, effective January 1, 2003, to the positions for
had signed on the job bulletin posted by the County in December 2002?
To what remedy is Sgt. Johnson entitled under Article 15 of
contract relating to overtime
The County would frame the issue as follows:
Did the County violate Article 9 of the collective bargaining
agreement when it temporarily
held the Grievants in their positions until an adequate number of replacements could be
trained? If so, what is the appropriate remedy?
The Arbitrator prefers the County's framing of the issues.
The collective bargaining agreement states in Article 9, Job Bulletins:
A job bulletin, for all jobs, except those critical to department
efficiency and polygraph operator
and K-9 patrol officers, effective January 1st of every year, shall be posted
no later than December
10th, and subsequently signed by bargaining unit seniority, subject to
personal qualifications, and the
needs of the department. Brown County will neither financially gain or lose when employees
jobs or shifts because of the job bulletin provision.
The job bulletin, also called the duty roster, was posted on or about December 1,
sergeants often post out of the jail into other sergeant positions. That is what happened here
to this grievance. Two sergeants in the jail Tim Johnson and Mary Schartner
signed the bulletin
to move out of the jail. Johnson wanted to be a patrol sergeant and Schartner wanted to be
investigative sergeant. Johnson was working a third shift at the jail, from 11:00 p.m. to
The patrol sergeant shift he wanted was from 3:00 p.m. to 11:00 p.m. Schartner's hours
have changed she was working 3:00 p.m. to 11:00 p.m. in the jail and would
keep those hours in
the investigative sergeant position.
On December 23, 2002, then-Sheriff Thomas Hinz advised the Union President, Alan
that there were not enough jail sergeants to fill the positions, and that Schartner and Johnson
going to remain in the jail to help operate it until February of 2003. Hinz told Phillips that
one of the
jail sergeants, Larry Malcomson, was going to have some surgery and would not be available
for four to six weeks. There were not enough people on the sergeants' eligibility list to
people into those positions. Hinz said that the jail could not operate with three jail sergeants
no one could have any time off. There are currently six jail sergeants. Without Malcomson,
and Schartner, there would only be three sergeants left at the jail. Phillips demanded to
Hinz based his decision to not allow the two sergeants to change positions on the
language that refers to Department efficiency and the needs of the Department. He intended
Johnson and Schartner to go to their posted positions in the job bulletin as quickly as
would be when a sergeants' eligibility list was re-established and sergeants were trained for
positions. Johnson and Schartner were allowed to pick their vacation times in their new
even though they remained in their old positions. Hinz felt that it was a temporary solution
to a crisis.
He noted that the last time the bulletin came up, the Department was short about 23 positions
sergeants were not allowed to move until replacements were trained.
The collective bargaining agreement states that an eligibility list is to be established
sergeants, and the list was to remain in effect for two years, ending May 31, 2001. The list
would have expired again on June 1, 2003, although the contract language does not reflect
list had been exhausted by the time that Johnson and Schartner signed for positions outside of
Phillips had talked to Chief Deputy Edward Janke in August of 2002 about the list. He
that they get a new list ready because of the few people on the current list at that time. The
met in November and bargained on that issue. Janke sent a memo to Phillips on November
asking for an agreement to establish a new two-year list with an effective date of August 1,
that employees hired prior to August 1, 1994 would be eligible for promotions. Phillips
on November 13, 2002, agreeing to establish a new sergeant eligibility list and change the
the current contract language.
Hinz felt that the parties could not have avoided the problem as early as August of
because the Chief Deputy was working on a new sergeants' list with the bargaining unit.
job bulletin cannot be implemented until the County's budget is completed. While the
budget was being put together, the County was negotiating with three neighboring villages to
The new Sheriff, Dennis Kocken, took office January 6, 2003 and discussed the
Phillips. The promotion procedure for sergeants generally takes about a month, and the
period takes another month. Jail sergeants are in charge of about 600 inmates. They handle
call people in, decide whether to evacuate the facility, handle suicidal inmates, decide
someone needs restraints, etc. In the past, the jail had problems with high rates of suicide,
excessive force, and liability issues.
The sergeants' promotion exam was set for January 7, 2003, pursuant to the parties'
agreement to do it as soon as practical after the first of the year. Applicants received notice
combined scores on January 17, 2003. Training plans for the new jail sergeants were
the middle and later parts of February of 2003. Sergeant Zeigle replaced Johnson on or
24, 2003, and Sergeant Bain replaced Schartner on April 5, 2003.
Greg Rabas is a patrol sergeant and the Union Vice President. He recalled that a
sheriff prohibited Don Stewart from going to his chosen bulletin position. Stewart was
and the Sheriff placed him in the courthouse rather than on the road, where Stewart wanted
Rabas also remembered other times when the Union had discussions with the Sheriff about
to temporarily assign people to positions or different hours than they signed for. He stated
management always came to the Union asking for a mutual agreement to change those hours
temporary assignments. Rabas was aware of situations where officers were paid time and a
assigned to work a shift other than their regular shift. He recalled one example around 1995
when officers were moved to fill an 11:00 a.m. to 7:00 p.m. position. Their normal hours
been 3:00 p.m. to 11:00 p.m. They were paid four hours of overtime for working outside
normally assigned shift. The parties settled the matter without an arbitration decision. These
situations were never posted on the job bulletin.
There were some bulletin positions in the drug task force that were not filled. The
Department management talked to the Union and they mutually agreed to not fill those slots
or three years.
The parties stipulated that between January 1, 2003, and March 26, 2003, Johnson
440 hours, or 55 eight-hour shifts. During that period of time, he worked 196.5 hours of
THE PARTIES' POSITIONS
The County posted the positions, and the "needs of the department" were served by
posting of these positions or they would not have been posted. There is no contention that
sergeants did not sign by bargaining unit seniority or that their personal qualifications were
insufficient. The circumstances under which the positions were posted and signed met all the
in the first sentence of Article 9. While the County believes that there was an alleged crisis
emergency in the jail that allowed it to ignore Article 9, the contract does not support the
that an alleged emergency situation justified an exception to the usual bulletin process. There
language that permits the County to ignore the bulletin process in the event some crisis or
exists. The parties have written specific language where they intended an exception to a
provision for an emergency.
The Union argues that the contract's specific provision for emergency exceptions in
instances is strong evidence that the parties did not intend for an emergency or crisis
exception in this
situation. In the past, where the County has desired to assign officers to positions other than
for which they signed under the bulletin, it has been by agreement with the Union.
Union submits that there was no emergency. The lack of
officers on the sergeants' eligibility list was the direct result of the County's failure to
act when the
Union brought it to the County's attention that few, if any, employees on the list were
promotion. The Union told the County about the matter in August but the County delayed
months before beginning to address the Union's proposal. The Union also advised the
November of 2002 that it agreed to post the sergeant testing opportunity and seven
in the year. The testing process takes only three to four weeks, and the jail sergeant training
takes only four weeks. Thus, there was sufficient time to develop a sergeant eligibility list
jail sergeant candidates before the end of the year. The County knew that it was a common
occurrence for sergeants to post out of the jail. An emergency or crisis is an unexpected or
The Union urges the Arbitrator to reject the County's contention that the phrase "the
of the department" constitutes some type of catch-all phrase that allows the County to
bulletin process when it deems it necessary. Hinz conceded that the phrase "except those
department efficiency" relates to the question of whether a particular position will be posted
first place. Nonetheless, Hinz maintained that the "needs of the department" phrase overrode
bulletining process. The contract cannot reasonably be interpreted to mean that, because it
create an exception to the bulletin process that literally swallows up the rule. If the Sheriff
power to disregard the newly-chosen assignments because he is merely deciding the needs of
Department, then the discretion he has would go unchecked by all of the other language the
The Union submits that the "needs of the department" are already reflected when the
has been made to post positions each December. The phrase relates to the question of what
posted, not whether people will be allowed to move into their new positions once they have
the job bulletin. It is undisputed that on all previous occasions where the County has desired
an officer from his or her signed-for position and into a different one, that desire has been
accommodated by agreement between the parties, not by unilateral County action. To the
agreement is ambiguous, the parties' practice established that the needs of the Department
determined by the County and the Union. The County's conduct violates that practice, and
extension, the collective bargaining agreement.
The Union also asserts that Sergeant Johnson is entitled to overtime pay for the hours
worked between January 1 and March 26, 2003. Article 15 provides that officers shall be
compensated at the rate of one and one-half times their normal rate for all hours worked
their normally scheduled hours. Sergeant Johnson was not allowed to move out of the jail
March 26, 2003. As a result, he was forced to remain on the 11:00 p.m. to 7:00 a.m.
than moving to the 3:00 p.m. to 11:00 p.m. shift he would have worked had he been
assigned per the
bulletin. Between January 1 and March 26, 2003, he worked 55 eight-hour shifts outside of
he would have worked in the patrol sergeant position. His hourly rate of pay during that
was $26.30. Regardless of the result of the first issue posed, there is no question that he is
to half-time pay, or $13.15 an hour for 440 hours. Thus, Sergeant Johnson is entitled to
in wages as a result of the Sheriff's refusal to allow him to move into the patrol division
first three months of 2003.
The County argues that Article 9 permits the suspension of the bulletin in accordance
the needs of the Department. The restriction on management's' right to schedule should be
construed and considered in the context of the essential service provided in public police
services. The issue appears to be the scope of the phrase "the needs of the department." It
to understand what that phrase means under the Union's interpretation. Apparently, the
believes that the Sheriff determines the needs of the Department in settling the schedule
bulletin. The management rights clause already gives the Sheriff the ability to schedule and
work. The Union's reading of the phrase renders it meaningless. The County reads the
mean that it reserves management rights to make sure that the needs of the Department, and
the safety of the public, are addressed regardless of the bulletin process. It is possible that
unanticipated personal preference, vacancies and unanticipated illness, that movements within
bulletining process may not adequately address the needs of the Department. That is what
in this case.
The phrases "subject to the personal qualifications and the needs of the department"
in the conjunctive, which means that both are applied to the rest of the sentences in the same
The qualifications language restricts the most senior patrol officer from a sergeant's position.
Likewise, the entire bulletin process must be subject to the needs of the Department. The
reading of Article 9 gives meaning to all the language and leads to a consistent result. If the
was allowed to go forward as signed, the needs of the Department in terms of supervision
direction of the jail by qualified personnel would not have been addressed.
The County asserts that the Sheriff had the authority to assign staff to cover the crisis
arose in this case. The Union did not offer evidence contradicting the conclusion of two
the Chief Deputy that there was a crisis or emergency in this case caused by the lack of jail
The lack of sergeants was dangerous to the operation of the jail. Management was not
responsible for this emergency. The creation of an eligibility list was delayed in part at the
of the Union. The emergency was of a limited duration. From the time that the Sheriff
of the crisis until Sergeants Schartner and Johnson were replaced, management acted as
as possible. Moreover, the Sheriff had the constitutional authority to hold the sergeants in
positions within the jail. He has the constitutional duty to maintain custody and control the
prisoners therein as part of the immemorial principal and important duties of a Sheriff at
that are constitutionally protected. Article 9 can be read in a manner consistent with the
constitutional powers. Fulfilling the Sheriff's constitutional duties would encompass the
needs of the
Department. The "needs of the department" language was intended to allow the Sheriff to
issues of general safety of the public and the performance of the Sheriff's constitutional
collective bargaining agreement restriction.
The County submits that there is no entitlement to damages and Article 15 does not
The Union appears to argue that the bulletin normally establishes the hours, and therefore,
kicks into effect because Sergeant Johnson was not working the hours he bulletined for. The
reads the phrase "normally scheduled hours" to be hours scheduled in the "normal" manner.
County believes that the contract and intent was that the "normally scheduled hours" was
to mean the hours the employees are assigned to and expected to work on a routine basis to
6-3 and 8 and ¼ hour per day scheduled of Article 14. Sergeant Johnson simply
remained in the same
shift he was in 2001. He was given notice that he was going to remain in that shift for a
period. He was not subject to periodic and sporadic changes of schedule for which overtime
compensated. He worked the same normally scheduled hours he worked in 2001 until he
replaced. While Rabas testified that on one occasion some officers were asked to change
and were paid time and a half for time worked during that change, that lone example is
distinguishable from this case. The issue of emergency was not addressed in that case. The
was a result of a settlement of a grievance or a threatened grievance. The sole example
the Union cannot constitute a binding past practice. Finally, paying time and one-half would
a windfall to Sergeant Johnson, who had "normally scheduled hours" in the 6-3 schedule.
that they were not the ones he bulletined for does not change the fact that they were normally
scheduled hours under the contract.
In Reply, the Union
The Union finds the County's interpretation of the phrase "the needs of the
nullifies the posting right gained in Article 9. The County wants the contract's management
superimposed onto Article 9. What the contract gives with one hand posting into
then be taken away with the other hand if the Sheriff can refuse to assign people to positions
which they signed. The Union maintains that the needs of the Department are reflected by
and content of the posting itself. If the phrase is ambiguous, then the past practice reveals
agreement does not contemplate unilateral action by the Sheriff negating the bulletin process
posting and signing have occurred. As to the notion that the Sheriff may determine after
sign for positions whether officers will be allowed to move would invest the Sheriff with
not contemplated by Article 9.
The Union objects to the County's emergency argument and claims the situation was
direct result of the County's own inaction in the fall of 2002 with respect to the sergeants'
list. The County knew in August of 2002 that the Union wanted to establish a new list but
action until November of 2002 to do so. The three-month delay was the reason for the
emergency, and the County should not be allowed to benefit from its own inaction.
There is no need to interpret the state constitution. The Sheriff did not state at the
that his actions were pursuant to state constitutional powers. He asserted a right to act as he
based on his interpretation of the contract.
Regarding Johnson's hours, the County argued that he did not work outside of his
scheduled hours based on Article 14. However, Article 15 distinguishes the days-on-days-off
concept. Had the parties intended the right of a 6-3 employee to overtime wages to be
on whether he has worked outside the 6-3 schedule, then they would have spoken of working
the employee's normally scheduled shift rather than normally scheduled hours. Moreover,
normally scheduled hours as of January 1, 2003 were to have been 3:00 p.m. to 11:00 p.m.,
11:00 p.m. to 7:00 a.m. shift he was forced to work.
In Reply, the County
While the County agrees with the Union that the sergeants signed by seniority and
qualifications, the Union ignores the language following those two requirements the
needs of the
Department. Giving normal meaning to all terms of the subject portion of Article 9
leads to only one
reasonable conclusion. The bulletin is subject to the needs of the Department. The Union's
renders the phrase without meaning. It argues that the needs were served by the posting of
positions. If that were the case, the phrase could be deleted from Article 9 and there would
The County asserts that there is no evidence of contrary past practice. The Union
to argue that where the County has needed to temporarily assign offices to positions or hours
different than that which they signed, they have always reached an agreement concerning
temporary assignments. That argument misses the point. In this case, the jail was left
by sergeants as a result of the bulletin process. This is unlike a situation where a temporary
assignment arises outside of the bulletin process that requires an officer to change the shift
officer has normally been working with little or no convenience.
The County disputes the Union's assertion that the situation was caused by the
County finds it remarkable that the Association did not even address the constitutional
powers of the
Finally, the County believes that the Union has misapplied Article 15. The Union
the conclusion that even though Johnson did not move out of his 11:00 p.m. to
7:00 a.m. shift on
January 1, 2002, his normally scheduled hours changed to the 3:00 p.m. to 11:00 p.m. shift
he had posted. The County contends that normally scheduled hours means just that, the
a person is usually scheduled to work. Johnson's hours did not change because he remained
position. The Union also argued that recovery under Article 15 is independent of the issue
the Sheriff could suspend the bulletin under Article 9. Only through the 2002 bulletin could
have any rationale to say that the 3:00 p.m. to 11:00 p.m. schedule constitute his normally
This case turns on the meaning on the phrase " the needs of the department"
as stated in
Article 9. The relevant language is:
A job bulletin, for all jobs, except those critical to department
efficiency and polygraph operator
and K-9 patrol officers, effective January 1st of every years, shall be posted
no later than December
10th, and subsequently signed by bargaining unit seniority, subject
to personal qualifications, and the
needs of the department. Brown County will neither financially gain or lose when
jobs or shifts because of the job bulletin provision. (Emphasis added.)
There are no issues about seniority or personal qualifications
the sergeants who posted
out of the jail. The only question is whether the Sheriff properly delayed their movement to
positions under the contract. The phrase "the needs of the department" could leave plenty of
for interpretation, and the Union has a legitimate concern that it could be read to broadly as
swallow up the posting procedure entirely. However, this decision will deal only with the
three-month delay and the immediate facts of this case. The jail sergeants were not denied
positions they were only delayed in receiving them.
Both parties cite some past practice to bolster their arguments. However, neither
the standards for a binding past practice. For a past practice to be binding, it must be
clearly enunciated and acted upon, readily ascertainable over a period of time as a fixed and
established practice by both parties. The Union cites an example of when officers worked
their normal schedules and were paid time and a half, but it cites only one example and
enough detail to determine whether it is the same situation. That example clearly does not
establish any past practice. The County cites an example of when officers were not allowed
to their signed positions in the bulletin, but again, there is no evidence of a strong past
Thus, there are no practices that are binding or helpful in interpreting the contract language
The Union would have the Arbitrator accept its interpretation that once the
the bulletin, it has already determined the needs of the Department and it cannot deny anyone
signs the bulletin the opportunity to move as of January 1st. To accept that
interpretation would mean
that any needs of the Department that arose in the interim between the posting and
could not be met or could not limit position movement. Surely the parties did not intend to
The better interpretation is simply to read the phrase "the needs of the department"
just as the
parties would have intended it to allow Department needs to be considered
along with seniority and
qualifications. The phrase has to have some meaning, and the parties placed it in
conjunction with personal qualifications. Qualifications may be considered at any time
in the process
and so may the needs of the Department. There are thousands of cases where
qualifications in job
postings are disputed after someone has posted for a job. The Union wants the "needs"
phrase to be
locked in at the time of the job bulletin, but the needs of the Department could be determined
management reviews who is posting out of which position. Or the needs of the Department
have changed by retirements, resignations, illnesses, injuries, etc. The facts that two
to post out of the jail while one jail sergeant was going on sick leave and no one wanted to
those positions changed the needs of the Department in this case.
The Union argues that the "needs" of the Department relates to the question of what
will be posted, not whether people will be allowed to move into their new positions once
signed the job bulletin. That interpretation is clearly incorrect, as the language states
personal qualifications and the needs of the department. That qualify phrase "subject to"
there still some hoops to jump through before employees get the positions for which they
While the Union correctly senses that the "needs" language is a big enough hole for a
to drive through, there is no evidence that the County has ever used this language to
movement in a position or that the County has in this case arbitrarily delayed movement out
jail. The County acted in good faith and advised the Union that there was a jail sergeant
be on an extended leave for surgery and that there were no people left on the sergeants'
that would accept a promotion. Moreover, the County acted in a timely manner to create a
eligibility list, get people promoted to sergeants, and get them trained to work in the jail.
The three-month delay in allowing Sergeants Johnson and Schartner to move to their new
positions was not
lengthy under the circumstances, and there is no evidence that the County did anything to
from posting out of jail or moving out to their preferred positions. In fact, this is a rather
in the multitude of posting cases in that there was no denial of the right to post out of the jail
a temporary delay to fix a problem caused by one sergeant's illness plus the posting
The Union believes that the County could have anticipated the problem, because the
list was exhausted and jail sergeants commonly post for other positions. Although the Union
that the list was exhausted in August, the posting procedure did not take place until
County did not know that for certain until early December that two jail sergeants would post
their positions, and the County was not required to make such an assumption well in advance
bulletin. The record does not show exactly when the Sheriff knew that one jail sergeant
would be on
extensive sick leave. The County acted in a timely manner once it had full knowledge of the
on the operation of the jail, and acted to rectify the situation in accordance with the contract,
employees to move into other positions as soon as feasible.
While the Union states that despite the outcome of the main issue, there remains an
overtime for Sergeant Johnson due to Article 15 of the collective bargaining agreement which
Employees who work the 6-3 shift shall be compensated at the
rate of one and one-half (1 ½)
times their normal rate for all hours worked outside of their normally scheduled hours or in
of 8.25 hours in any working day, as except as provided below. Employees who work the
shall be compensated at the rate of one and one-half (1 ½) times their normal rate for
worked outside of their normally scheduled hours or in excess of 8.00 hours in any working
except as provided below.
I disagree that the overtime issue is separate from the main issue here. First of all, if
properly left Sergeant Johnson to work as a jail sergeant and there is no contract violation,
does not follow that the Union can still seek damages for the delay in moving to the new
One issue is still tied to the other issue. There can be no independent violation of Article 15
is no violation of Article 9 in this case. It does not make sense to say that the County
Johnson in his jail sergeant position but that he still would be entitled to overtime because he
have been working different hours as a patrol sergeant effective January 1, 2003.
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin, this 31st day of October, 2003.
Karen J. Mawhinney, Arbitrator