County Board Reversal of Sheriff’s Proper Decision Proves Costly
by Andrew Schauer, WPPA Staff Attorney
Association members in Florence County will continue to have their seniority rights respected and be offered overtime pursuant to a “call-in” procedure as provided for by their Collective Bargaining Agreement (CBA). Arbitrator Dennis McGilligan wrote a 14-page decision in favor of the Association to provide overtime pay explicitly denied by the Florence County Board to one of our members.
Florence County Patrol Deputies have a provision in their CBA stating that overtime must first be offered to “a regular certified full-time deputy on a seniority basis.” Out of that language, a procedure for calling in deputies for overtime opportunities was created and followed for many years. Past mistakes made in following that procedure were rectified by paying the deputy who was overlooked for the shift in question. Make no mistake – contractual overtime like this is a bargained-for benefit of the contract, and was gained and kept in the contract through negotiation, probably at the expense of other wages or benefits.
One of these overtime shifts occurred on January 4, 2008. Unfortunately for the Department, the shift in question opened up when a well-liked corporal fell gravely ill. (He has recovered nicely, and is still a member of the Department.) Management chose to call in a part-time deputy who they thought would be working the shift on straight time, but later found out that the part-time deputy was exceeding his scheduled number of shifts that pay period, and therefore the time was paid at an overtime rate.
On January 29, 2008, Florence County Deputy Sheriff’s Association (FCDSA) President, Deputy Curt Jensen, brought the matter to the attention of Sheriff Jeff Rickaby. In a letter to Deputy Jensen dated January 30, 2008, the Sheriff promptly ordered that the full-time deputy be paid the 12 hours of pay at time-and-one-half. Then on February 1, 2008, the Association received an e-mail from the Sheriff stating that he had been directed by the County Board Chair not to pay the 12 hours overtime. Both sides testified that the Sheriff was so ordered by the County not to pay the overtime, but testimony differs as to why that determination was made. The County claimed that it was an “emergency” situation, so they should not have to pay the time at an overtime rate.
The Association disagreed with this conclusion, citing the fact that there was plenty of time between the Lieutenant’s falling ill and the start of his shift the next day which needed to be filled. Accordingly, the arbitrator held that the assignment in that instance did not qualify as an “emergency” and the County could not skip the contractual procedure for filling overtime shifts based on seniority.
At the hearing, the County also attempted to argue that the grievance that was filed in this matter on February 7, 2008 was untimely because it was received more than 20 working days after the shift in question. However, the Association successfully argued that while the “event” that initiated the dispute occurred outside of the contractual timeline for a grievance to be filed, the Association made a verbal complaint to the Sheriff on January 29, well within the timeline. When the Sheriff agreed to pay the overtime as suggested, the Association understood the matter to be resolved, and that there was nothing to file a grievance over. But when the Sheriff later informed the Association that he had been directed by the County Board Chair not to pay the 12 hours of overtime, this created a separate “event” which actually triggered the dispute. The Association timely filed a grievance within 20 working days after this later event, and as such, the Arbitrator held that the grievance was timely.
This matter was arbitrated on September 22, 2008, in Florence, Wisconsin, and the decision of ad hoc Arbitrator Dennis McGilligan was issued on December 5, 2008. The Arbitrator awarded 12 hours of pay to the most senior full-time deputy who was available to work on January 4, 2008 – the exact same remedy the Association and the Sheriff had come to over 11 months earlier.
There are four morals to this story – two for our other locals across the state, and two for county board committees which supervise sheriff’s departments.
First, the “event” that triggers a grievance may not be on the same date as the shift worked. Here, the Arbitrator properly held that the event that triggered this grievance did not happen until almost a month after the shift in question, since the pay was not denied to the deputy until after the County Board Chair ordered that it not be paid. The grievance timelines did not start until the FCDSA was informed of that decision.
Second, if there is a practice of working things out between the local leadership and the administration, that practice will often be respected by an arbitrator. Here the Arbitrator agreed with the Association and held that strictly enforcing the timelines contained in the grievance procedure “could chill the parties from working out disputes amicably, without resorting to the formal grievance process, where appropriate.” We do not wish to encourage locals to blow off timelines in grievance procedures, and this case does not stand for that proposition. However, this case does stand for the idea that when the parties informally address matters in a timely manner, and come to an amicable resolution, such a resolution needs to be respected. Otherwise, the reversal of such a resolution can itself be the triggering event of the grievance process.
Third, an “emergency” is not whatever management says it is. The Arbitrator in this case looked at the dictionary definition of “emergency” and did not bow to the County’s arguments here. He noted that even though the situation arose unexpectedly and caused serious distress in the Department, there was plenty of time to follow the call-in procedure, and as such, the County could not skip the procedure.
Fourth, when the Sheriff (the management of the Department) and the Association (the workers in the Department) agree on something, most times that is the way to go. In this case, with its motives unclear in the record, the County Board overruled its own Sheriff to its great economic peril. It ordered the Sheriff to reverse himself and refuse to pay the overtime, and hired an outside attorney to fight the case in front of an arbitrator. The County Board spent almost $2,000 in Arbitration fees and costs (not to mention what it paid its outside counsel in attorney’s fees and costs), fighting over 12 hours of overtime, which amounts to less than $500.
The expense of arbitrating this case was well worth the benefits of upholding bargained-for contractual benefits. The WPPA will not hesitate to do so in other cases where the contractual violation on the part of the employer is so clear. Our contracts are only as good as our ability to enforce them through the grievance process.