BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BUFFALO COUNTY HIGHWAY EMPLOYEES
COUNTY OF BUFFALO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, Route
1, P.O. Box 333, Sparta, Wisconsin 54656, for Buffalo County Highway Employees,
below as the Union.
Mr. Richard J. Ricci, Weld, Riley, Prenn & Ricci, S.C.,
Attorneys at Law, 4330 Golf Terrace,
Suite 205, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, for County of Buffalo,
to below as the County or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
effect at all times relevant to this proceeding and which provides for the final and binding
arbitration of certain disputes. The Union requested, and the County agreed, that the
Employment Relations Commission appoint an Arbitrator to resolve a dispute reflected in a
grievance filed on behalf of Ken Venus, who is referred to below as the Grievant. The
Commission appointed Richard B. McLaughlin, a member of its staff. Hearing on the
held on March 4, 1997, in Alma, Wisconsin. The hearing was not transcribed, and the
filed briefs by October 21, 1997.
The parties stipulated the following issues for decision:
Did the County violate the collective bargaining agreement by
assigning the Gas Man to
perform overtime roller operations on Thursday, June 6, 1996, rather than the Grievant?
If so, what is the appropriate remedy?
ARTICLE IV - MANAGEMENT
Section 1 The Union recognizes the rights
and responsibilities belonging solely to the
County, prominent among, but by no means wholly inclusive are the rights to hire, promote,
discharge, or discipline for just cause. The right to decide the work to be done, and the
of the work. The Union also recognizes that the County retains all rights, powers, or
that it had prior to this Agreement except as modified by this Agreement.
Section 2 The rights, powers, and/or
authority herein claimed by the County are not to be
exercised in a manner that will cease to grant privileges and benefits the employees enjoyed
to adoption of this Agreement and that are not incorporated herein, or in a manner that will
undermine the Union or as an attempt to evade the provisions of this Agreement or to violate
spirit, intent, or purpose of this contract.
. . .
ARTICLE V - GRIEVANCE
Section 1 - Definition of a Grievance
A grievance shall mean a dispute concerning the interpretation or
application of this contract.
Section 2 - Subject Matter
Only one subject matter shall be covered in any one grievance. A
written grievance shall
contain the name and position of the grievant, a complete and concise statement of the
the issue involved, the relief sought, the date the incident or violation took place, the specific
section of the agreement alleged to have been violated, and the signature of the grievant and
date. If a grievance affects a group or a class of employees, the Union may submit such
grievance in writing to the Highway Committee directly, and the
processing of such grievance
will be commenced at Step 3. Such grievance must be signed by an officer of the Union.
. . .
Section 4 - Steps in Procedure
. . .
Step 3: If the grievance is not settled at the second
step, the grievant and/or a representative
may submit it to the Highway Committee within five (5) work days following the
reply to the grievance. The Highway Committee will further investigate the grievance and
a decision in writing to the grievant and the representative within ten (10) work days.
Section 5 - Arbitration
. . .
6. Decision of the Arbitrator: The decision of the
arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to interpretation of the contract in the
where the alleged breach occurred. The arbitrator's remedy shall not modify, add to, or
from the express terms of the Agreement.
. . .
ARTICLE VII - OVERTIME
Section 1 All hours worked outside the
standard work day and/or the standard work week
and/or in excess of eight (8) hours per day and/or forty (40) hours per week shall be paid at
and one-half (1 1/2) times the employee's regular hourly rate of pay.
Section 2 All employees shall receive one
and one-half (1 1/2) times their regular hourly rate
of pay for all hours worked on a holiday in addition to their holiday pay.
Section 3 The Highway Commissioner
may require the various work crews or individuals
to work overtime in any emergency or when such overtime work will result in eventual
or savings to the taxpayers of Buffalo County.
. . .
ARTICLE XXII - ENTIRE MEMORANDUM
This Agreement constitutes the entire agreement between the
parties and no verbal statement
shall supersede any of its provisions. Any amendments supplemental hereto shall not be
upon either party unless executed in writing by the parties hereto. The parties further
acknowledge that, during their negotiations which resulted in this Agreement, each had the
unlimited right and opportunity to make proposals not removed by law from collective
and that the agreements arrived at are set forth in this Agreement.
. . .
The grievance, filed on June 11, 1996, states the "applicable violation" thus:
Robin Secrist, a nonoperator was told by Joe Wieczorek to roll
down a paving job on
overtime. (The Grievant) the principle (sic) operator of the roller was not notified but was
available to run the roller.
The grievance form does not state a specific contract provision underlying the
violation." David Brevick, the Highway Commissioner, responded to the grievance in a
dated June 24, 1996, which states:
. . .
It is in Buffalo County's best interest to have a
principle (sic) operator assigned to all Heavy
Equipment. This practice insures safety and efficiency. The county intends to continue this
practice. From time to time, however, it may be necessary to have other employees operate
equipment that has a 'principle' (sic) operator'. The county recognizes this as management's
. . .
The Union did not agree with this response. Daniel Pfeifer, the Union's bargaining
representative, advised Brevick, in a letter dated July 3, 1996, that the Union wished to
grievance to the next level. His letter states: "Please contact the undersigned to establish
a time and place for the Union to present the grievance to the Highway Committee."
submitted the grievance to the Highway Commission, and summarized its response in a letter
dated July 12, 1996. His letter states:
. . .
This letter is in regard to the Highway Commissioner's decision
involving the two current
union grievances. The committee discussed both grievances at their July 10, 1996
Although both grievances involve separate issues, the underlying
problem seems to be that of
a principle (sic) operator and the managements (sic) ability to decide who will perform
at what time.
In the case of (the Grievant), the fact that there was a
misunderstanding about his availability
is irrelevant. (The Grievant) is classified as a Heavy Equipment Operator and he signed that
posting knowing that operating the roller would be the main duty of that position. That does
exclude (the Grievant) from operating other equipment or exclude other employees from
the roller. The following is a list of just a few examples of situations were (sic) these
A) The oiling crew is short of a grader operator. (The
Grievant) has years of experience
on a grader and is the only one available. (He) operates the grader and someone else takes
roller. (Management Rights)
B) (The Grievant) is available to operate the roller, however, a
small grader patch needs
to be rolled North of Mondovi where the roller is located and (the Grievant) is hauling rock
Fountain City. A Mondovi employee operates the roller. (Management Rights)
C) (The Grievant) is recovering from a serious injury and has a
doctors (sic) permission
to return to work. He begins to operate the roller, however, his performance and/or safety
affected and we have someone else operate the roller until he further recovers. (Management
D) (The Grievant) is available to operate the roller, however,
the commissioner assumed
he was not available and assigned someone else to the roller. (Management Rights)
. . .
The Union did not agree with this response and initiated the arbitration process.
The parties, at hearing, stipulated the following facts:
1. The standard work day is from 7:00 a.m. to 3:30 p.m.
2. (The Grievant) was performing Roller
Operator duties on County Highway AA near Urne
on the morning of June 6, 1996. The Heavy Equipment Operator position includes roller
operations but there is no specific Roller Operator position.
3. Robin Secrist is a Gas Man.
4. On the afternoon of June 6, (the
Grievant) was on County Highway D near Urne en route
to the Waumandee shop.
5. David Brevick, the Highway
Commissioner, reviewed the job site on County Highway AA
near Urne in the early afternoon.
6. (The Grievant) left County Highway D
at approximately 1:30 p.m. and returned to the
7. Secrist was at the Alma shop, and was
assigned to return to Highway AA to operate the
Roller because Brevick wanted the road to be rolled again on June 6.
8. The County Highway AA work was to
be rolled again the next day (Friday), weather
permitting, but was not rolled until Saturday by (the Grievant).
9. (The Grievant) was off on Friday on
sick leave for a medical appointment.
10. The Highway Committee met to review
the grievance, but the Union was not present.
The parties also adduced testimony at the arbitration hearing. None of the matters
covered in that
testimony is disputed.
The Grievant and Secrist are each classified in the position of Heavy Equipment
The Grievant acts as the principal operator of the roller, and Secrist's principal function is
Man. Secrist served as the principal operator of the roller prior to the Grievant's assumption
that function roughly eight years ago. The Grievant has greater seniority than Secrist.
The grievance questions events of June 6, 1996. The prior day the Grievant had
portion of County Highway AA near Urne. The day was rainy and, as a result, the mix
by the Grievant was soupy. On June 6, the Grievant finished some roller work on County
Highway D, then, sometime around 1:15 p.m., called a Foreman, Joe Wieczorek, to
if there was any more roller work to be done. Wieczorek informed the Grievant that there
no more roller work then ready and that he should shut the roller down. The Grievant did
then returned to the shop at Waumandee, roughly 26 miles from Urne.
At roughly 3:15 p.m., the Grievant called the shop at Alma. He learned that roller
was then being done on County Highway AA. The Grievant called Brevick to determine
happened. When Brevick informed him the roadway would be rolled twice, the Grievant
to do the second rolling. He left work at 3:30 p.m. on June 6. The Grievant had a doctor's
appointment set for the following day. His request for sick leave had been approved several
prior to June 6.
Brevick inspected the work on County Highway AA early in the afternoon on June 6.
decided the site would have to be rolled twice more to make the patch acceptable. From his
phone, Brevick called the Urne shop and spoke to Wieczorek. Wieczorek is a member of
bargaining unit. From their discussion, Brevick assumed that the Grievant had left the work
because he did not feel well. He instructed Wieczorek to call Secrist at the Alma shop, so
the County Highway AA site could be rolled that afternoon. The Alma shop is roughly 20
from the work site on County Highway AA. Secrist put in one and one-half hours of
on June 6 to complete the rolling assigned by Brevick.
Because the weather turned bad on June 7, the second rolling had to be performed on
Saturday, June 8. Because he knew the Grievant was available on June 8, Brevick assigned
Saturday work to the Grievant. Brevick acknowledged that if he had realized the Grievant
available to work on June 6, he probably would have assigned the work to the Grievant.
Brevick noted that a principal operator may spend 95% of his time on the same piece
equipment. However, he also noted it was not unusual for Heavy Equipment Operators to
on whatever piece of equipment a given job required, whether it was his principal machine
Brevick has worked for the County for roughly eleven years, and noted that the practice of
one employe responsible, to the fullest extent possible, for a single piece of equipment had
in effect throughout his employment.
It is undisputed that in the bargaining which produced the 1996-98 labor agreement,
Union made the following proposals:
1) Article VII - Section 3
Amend to "Overtime shall be granted
according to seniority."
. . .
12) Article XVIII - Add a new Section
"Each separate piece of heavy equipment
shall have one (1) principal operator."
. . .
The parties attempted, in bargaining, to codify their practice in a way which stated the
a principal operator, but preserved the County's flexibility to respond to operational needs.
various proposals and counter proposals grew in length and complexity until the parties
the attempt to clarify the practice yielded something less than clarity. The agreement was
amended to reflect Union proposals 1) and 12).
Further facts will be set forth in the DISCUSSION section below.
THE PARTIES' POSITIONS
The Union's Brief
After a review of the evidence, the Union notes that it is undisputed that the Highway
Committee rendered its decision without permitting the Union to present its case. The Union
contends that "it is hardly fair and unbiased for the Highway Commissioner to present the
grievance to the Highway Committee."
Turning to the merits, the Union asserts that "the primary operator of a piece of
. . . should be assigned to operate that piece of equipment when the operator is available."
reflects, the Union concludes, an understood practice. A review of the evidence establishes
the County's concern that it have some flexibility in assigning equipment is not at issue here.
Rather, the grievance poses "inaccurate communications or a misunderstanding of the
work force on June 6th."
The evidence makes it apparent that had "Brevick known (the Grievant) was available
perform the rolling on Highway AA, (the Grievant) would have been assigned said duties
that was the practice." The Commissioner thus made a mistake and has refused to correct it.
Union concludes that the grievance should be sustained, and that the Arbitrator should order
County to assign Operators, when available, to their primary piece of equipment. Beyond
the Union "requests that (the Grievant) be awarded one and one-half (1 1/2) hours of
June 6, 1996."
The County's Brief
After a review of the evidence, the County argues that "(t)he Grievant has not
the contractual grievance procedure" by failing to specify "the specific section of the
alleged to have been violated." The County acknowledges the "the issue of arbitrability was
raised by the Employer throughout the grievance process." The County argues, however,
Grievant's failure to comply with the grievance procedure "not only limits the Arbitrator's
jurisdiction . . . but also lends credence to the fact that there is nothing for the Union to
in support of this grievance." Arbitral precedent confirms that the grievance is "not properly
before the Arbitrator."
The failure of the grievance to cite a contract provision manifests, according to the
that "there simply is no language in the contract" requiring the County to assign
the overtime to
the Grievant. To find a violation would, the County argues, violate Article V.
Even if the grievance could be considered arbitrable, the County contends that
Section 3 cannot be read to require it to assign the disputed overtime to the Grievant. The
agreement neither requires that a particular employe be assigned overtime or that overtime be
assigned based on seniority. Nothing in the evidence will supply any more support for the
Union's position than the labor agreement. If anything, the evidence demonstrates Brevick's
faith in making the assignment and the soundness of his business reasons for doing so.
A review of the parties' bargaining history underscores that the Union lacks a
basis for the grievance. Its proposals manifest that it seeks to gain through arbitration what
failed to gain in negotiation. Acknowledging that "(t)here is no dispute that most machines
a principal operator" and that "the principal operator runs the machine the great majority of
time," the County contends that the grievance cannot be granted without creating an
never agreed upon in negotiation.
Nor will the evidence establish a procedural violation by the County. Step 3 "does
require that the Highway Committee meet with either the Grievant or the
Union." The labor
agreement requires the Highway Committee to do no more than investigate the grievance,
County did so. Viewing the record as a whole, the County "requests that the Arbitrator
this grievance in its entirety."
The issue on the merits of the grievance is stipulated, but the parties pose two
procedural issues. The County contends that the failure of the grievance to list "the specific
section of the agreement alleged to have been violated" violates Article V, Section 2. The
contends that Brevick's presentation of the grievance to the Highway Commission fails to
with Step 3 of Article V, Section 4.
Each alleged violation has merit, but neither can, standing alone, resolve the merits of
grievance. The County accurately notes that the grievance form fails to comply with
Section 2. The grievance form does not state any entry demanding "the specific section of
contract alleged to have been violated." Nor do the handwritten entries on the form contain
information. Article V does not specify a sanction for this omission, and the County did not
object to the omission prior to hearing. The evidence establishes the parties processed the
informally, and restricted their discussions to the merits of the grievance. Against this
background, it is more persuasive to treat the omission as evidence concerning the
merits of the grievance than as a jurisdictional point. The level of formality in
for by the County has no basis in the evidence, and such formality should not unnecessarily
forced into a bargaining relationship.
Similar considerations govern the Union's contentions. The County forcefully argues
Step 3 requires only that the "Highway Committee . . . further investigate the grievance and
submit a decision in writing." This ignores, however, that Step 3 states that the "grievant
a representative may submit it to the Highway Committee." Presumably, the "may"
not every grievance must be advanced to Step 3. The County's arguments, however, gloss
the linkage of "submit" to "the grievant and/or a representative." In this case, Brevick
to have made the submission. However, the Union's procedural contention, like the
ignores the informality of the processing of the grievance and the parties' focus on the
Here too, whatever procedural weakness exists in the processing of the grievance fails to
a conclusion independent of the evidence on the merits of the grievance. The presentation of
Union's case at hearing remedied any loss traceable to Step 3.
The merits of the grievance turn on past practice. Past practice can serve as a guide
the interpretation of ambiguous contract language or, conceivably, as the source of an
contractual obligation. The County contends that it cannot, under this agreement, serve the
The County's arguments have considerable persuasive force. Article VII does not
assignment of overtime based on seniority or on status as principal operator. Articles V and
underscore that the grievance must have a contractual footing. However, the force of the
County's arguments cannot obscure that Section 2 of Article IV precludes County use of its
management rights "in a manner that will cease to grant privileges and benefits the
enjoyed prior to adoption of this Agreement and that are not incorporated herein." Brevick's
testimony and his June 24, 1996 response to the grievance acknowledge the existence of a
practice concerning the assignment of overtime.
That the grievance has a contractual foundation does not, however, address the
of that foundation. The evidence clarifies that the practice is ill-defined. It is apparent the
attempts to assign work to principal operators. It is no less apparent it is not compelled to
in every case.
The issue thus turns on whether the County should be compelled to award the June 6
overtime to the Grievant. The evidence will not support the Union's assertion that it can be
compelled. Brevick acknowledged he would have assigned the work to the Grievant had he
known the Grievant was available. The fault for this misunderstanding cannot be laid at
feet. Wieczorek did not testify, and it is not apparent what was said between Brevick and
Wieczorek on June 6. It is, however, apparent that Brevick believed that the Grievant was
available due to illness. That the Grievant had approved sick leave for June 7 makes this
Brevick's mistake was, then, made in good faith and after consultation with a unit
member. It is impossible to base a contract violation on this action. At the time Brevick
he assigned the nearest available roller operator to the job. This is within the scope of the
the Union seeks to use as a basis to compel payment. The parties acknowledge the County
consider its operational needs in assigning Heavy Equipment Operators to machinery. On
afternoon of June 6 Secrist was well into the work on County Highway AA before Brevick
made aware of the Grievant's availability. Nothing in the evidence would suggest any basis
contract or practice to support a conclusion that Brevick was under an obligation to suspend
work on County Highway AA until the Grievant could make the roughly one hour trip from
Waumandee to Urne. That Brevick acted on a misunderstanding is arguably more traceable
Wieczorek than to Brevick. When the Grievant informed Brevick of his availability, Brevick
responded by assigning him the second half of the rolling operation. Against this
is impossible to conclude the County abused its Article IV rights.
If the County had attempted to disavow the practice acknowledged by Brevick the
might be different. Here, however, the Union seeks to gain more from the practice than the
evidence will support. Brevick did no more on June 6 than he had done in the past by
the availability of a principal operator and the County's operational needs when he assigned
to perform roller work on June 6.
That the Union failed to secure proposals 1) and 12) in the bargaining which produced
agreement governing the grievance has no bearing on the conclusions stated above. The
the Union sought to gain through those negotiations proved impossible. This does not dictate
conclusion that there is no practice. However, the evidence will not support the clarification
the practice the Union seeks to gain through this arbitration. The evidence will not permit
practice to be stretched to cover this grievance.
The County did not violate the collective bargaining agreement by assigning the Gas
to perform overtime roller operations on Thursday, June 6, 1996, rather than the Grievant.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 17th day of November, 1997.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator