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BEFORE THE ARBITRATOR

In the Matter of the Arbitration

of a Dispute Between

LOCAL 2717-C, AFSCME, AFL-CIO

and

JACKSON COUNTY (HIGHWAY DEPARTMENT)

Case 98

No. 49675

MA-8023

Appearances:

Mr. Daniel Pfeifer, Staff Representative, Wisconsin Council 40, appearing on behalf of the Union.

Mr. James Michael DeGracie, Corporation Counsel/Personnel Director, Jackson County, appearing on behalf of the County.

ARBITRATION AWARD

The Union and the County named above jointly requested the Wisconsin Employment Relations Commission to appoint the undersigned to hear a grievance concerning mechanics' rate of pay. A hearing was held in Black River Falls on October 21, 1993, and after the hearing, the parties agreed that the undersigned should issue an expedited award. The undersigned concludes that the grievance should be sustained.

The parties have asked the Arbitrator: Did the County violate the collective bargaining agreement by not paying employees mechanics' rates for performing mechanics' duties? Article 21, Section 3, states: "Employees working in a higher class job shall receive the rate of pay of the higher class job for all time worked. . ."

Employees were non-union until 1986. According to Highway Department Patrol Superintendent Robert Gabriel, employees were never paid a mechanics' rate differential for routine maintenance on trucks, such as changing oil, tires, belts, greasing or other routine maintenance tasks until Roger Huber became Highway Commissioner. Huber became Commissioner in 1985, one year before the employees organized and started working under a collective bargaining agreement. Huber remained Commissioner until 1991.

All during Huber's administration, the employees were paid the higher mechanics' rate of pay under Article 21 for changing oil, tires, belts, greasing trucks and performing other routine maintenance tasks. The practice may even have preceded Huber, according to Union President George Lewis, who said he received the differential of his pay and mechanics' pay under Commissioner Harlan Nelson, who was Commissioner before Huber. The new Highway Commissioner, Michael Hemp, changed that practice late in 1992.

The most relevant fact is when the labor contract came into existence and during the parties' first six years under collective bargaining agreements, the mechanics' rate of pay was paid for routine maintenance. It was the unilateral action of the new Commissioner that changed the practice. The contract language never changed.

In other words, it was the parties' intent and understanding that the mechanics' rate of pay be paid for routine maintenance under the terms of the collective bargaining agreement. The County violated the bargaining agreement by not paying the mechanics' rate of pay. If the new Commissioner wants a change in the practice, it is up to the County to come to the bargaining table and bargain over it. The practice started before the first contract was in place, it continued with the first contract and successive bargaining agreements, and became imbedded in the understanding of the language of Article 21. It cannot be wiped out now without bargaining for a change.

AWARD

The grievance is sustained. The County is ordered to pay the mechanics' rate of pay to employees for performing mechanics' duties, including changing oil, tires, belts, greasing trucks, and other routine maintenance which had previously been paid at mechanics' rates. The County is further ordered to pay the mechanics' rate of pay since the date of the grievance, December 21, 1992, where records substantiate the failure to pay the mechanics' rate of pay for employees' performing routine maintenance. The Arbitrator will hold jurisdiction until January 21, 1994, solely for the purpose of resolving any disputes over the scope and the application of the remedy ordered.

Signed this 19th day of November, 1993, at Elkhorn, Wisconsin.

By ____________________________________

Karen J. Mawhinney, Arbitrator