BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 2717-C, AFSCME, AFL-CIO
JACKSON COUNTY (HIGHWAY DEPARTMENT)
The Union and the County named above jointly requested that the Wisconsin
Relations Commission appoint the undersigned to hear a grievance regarding auxiliary
being posted. A hearing was held in Black River Falls, Wisconsin, on April 4 and 5, 1995,
time the parties were given the opportunity to present their evidence and arguments. The
completed filing briefs by November 13, 1997.
The issue is:
Did the County violate the collective bargaining agreement by
failing to post a state auxiliary
position in the Highway Department? If so, what is the appropriate remedy?
A position called "State Auxiliary" is listed in the labor contract under Range 2 of the
schedule. The parties stipulated that there were a total of three State Auxiliary positions.
Richard Gilbertson has worked for the County for 16 years. He started as a laborer,
was called then "state stand-by," and in the late 1980's, he took a State Auxiliary position.
not remember if he was asked or assigned or if the position was posted when he received it.
State Auxiliary workers' duties include running a bull dozer, filling in or floating
needed, but mostly on state roads. The State Auxiliary person could work on County roads,
probably would not, except in emergencies. In the winter, they plow snow on the interstate
The Patrol Superintendent, Robert Gabriel, primarily works with the State trunk
makes assignments on those roads, depending on the weather, the project, how many men
who's available and who has experience with machinery. Most men working on the State
assigned a truck. Patrolmen are employees who patrol the nine sections of the County each
then go to a project with other state personnel.
Highway Commissioner Michael Hemp noted that the terms "patrolman" and "state
are terms used by the Highway Department to define work done on the State system, which
higher rate of pay. The labor contract calls for higher rates of pay in higher class jobs under
21, Section 3.
The State budget pays for work on State roads. The area maintenance supervisor for
Wisconsin Department of Transportation is William Leisso. He said that every year, the
into contracts with the counties to perform routine maintenance for the State trunk highway
including the interstate roads. The State reimburses the counties for wages, materials and
If a county man works on State roads, the State picks up the actual hours that he worked for
State. There used to be more structure in positions regarding auxiliary positions, which were
full-time in addition to patrolman. But a few years ago, there was a change whereby people
longer classified as auxiliary per se or stand-by labor, and anyone
beyond patrolman is called "extra
help," at least by the State. The State gives general directions for what it wants done, and
counties give the actual assignments to specific employees at their discretion.
When the County was getting its first new tri-axle truck, Gabriel spoke with
using it. Gabriel was trying to place the truck with the right person who was flexible enough
on State roads in the winter months, because the truck had a left-hand wing. If Gilbertson
take that job with the tri-axle, he would also have to take a lower base rate of pay, because
go to the Range 1 pay for laborers. However, with the pay differential for driving the truck,
be at the same rate as he made as State Auxiliary.
Gabriel considered putting Gilbertson in the tri-axle to be a temporary move, and that
could not assure permanent placement without Hemp's permission. Gabriel posted notices of
for those interested in a temporary State Auxiliary job for the summer to sign up. Kirk
signed up, then changed his mind, and Gabriel asked Goetzka to reconsider. Gabriel told
he could not make any promises, but the job could be a full-time position.
Goetzka had been State stand-by. He decided that he did not want the temporary
Auxiliary posting because it was not full-time. Goetzka was filling in for another Patrolman,
Lewis, before signing for the Auxiliary position.
When Gilbertson took the tri-axle truck, he was told by Gabriel that his duties would
mainly driving truck, hauling gravel, black top, and working for the County. The tri-axle
into service in 1994, and Gilbertson plowed snow with it during the winter of 1993-94.
He drove it all summer during 1994. He assumed that someone else would be doing the
duties that he
performed as State Auxiliary, as he was no longer doing those same duties that he performed
he was State Auxiliary. Gabriel asked him to take the State Auxiliary position back, and on
1994, Gilbertson wrote a note agreeing to do so as long as it did not change his job status.
Before Gabriel asked Gilbertson to take back the State Auxiliary position, the Union
grievance on April 5, 1994, stating that management did not post the State Auxiliary
position correctly, as a full-time position. After the Highway Committee heard the
replied that the State Auxiliary position was never vacant, and that Goetzka was acting as a
other Patrolmen when they were issued other assignments.
THE PARTIES' POSITIONS
The Union argues that the notices for State Auxiliary positions were not appropriate
they indicated that the positions were temporary and the selections would be made by Gabriel
Orsen. Joint Exhibit 10 states that Goetzka "has been assigned" the State Auxiliary position.
positions were not posted pursuant to the contract. The County only posted a notice of
a temporary position and made the assignment on the preferences of the supervisors, not on
provisions of the contract. More senior employees may not have signed the notice of interest
of its temporary nature and the fact that seniority meant nothing.
The Union also asserts that the County was simply attempting to have Gilbertson
drive a tri-axle and place Goetzka in a full-time auxiliary position. The Union contends that
in order to do this,
the County had to devise a scheme to bypass the labor contract.
The Union notes that the County contends that Gilbertson retained his auxiliary
was simply assigned to drive the tri-axle, and that Goetzka retained his laborer position and
simply temporarily assigned auxiliary duties. Hemp testified that Gilbertson's and Goetzka's
rates of pay did not change during this whole procedure. The Union calls the County's
Looking at the 1993 wage rates, prior to April of 1994, Gilbertson would have been
auxiliary worker with a base wage of $10.54 per hour, and Goetzka would have been a
a base wage of $10.44 per hour. Union Exhibit #14 shows that in the pay period ending on
1994, Goetzka's regular hourly rate was increased from $10.44 per hour (laborer rate) to
hour (auxiliary rate). This procedure simply exchanged Gilbertson's position and Goetzka's
completely bypassing the terms of the contract.
Once the Union filed the grievance, the County tried to fix its mistake. Gilbertson
was to take
his old auxiliary position back, and the payroll ending July 1, 1994 shows that Goetzka's rate
was reduced to the laborer's rate and Gilbertson's rate of pay increased to the auxiliary rate.
The Union believes that what happened was that Goetzka moved into a full-time
position without a posting. If there were a vacant auxiliary position, it should have been
the terms of the collective bargaining agreement. If there was no vacant auxiliary position,
County violated the bargaining agreement by unilaterally switching the positions of
Goetzka. The Union asks that the County be ordered to post the vacant auxiliary position
make whole remedy or rule that the County violated the collective bargaining agreement by
unilaterally switching employee positions.
The County asserts that there was no permanent State Auxiliary position vacancy, and
therefore posting requirements were not applicable. The County states that the essential
whether a person who temporarily agrees to perform other duties vacates his position,
although it was
not the intent that this move be anything but temporary. Article 7, Section 1 makes it clear
a vacancy or new position is created, the posting requirements must be followed.
Gabriel posted the temporary auxiliary position and the time limits for the posting
with the labor contract. Goetzka indicated that he did not want to sign the posting because it
not full time, and Gilbertson did not file anything to indicate that he was vacating the State
position. Hemp stated that a person stepping down from a position normally gives him a
create a paper trail and avoid these kind of problems. Between January 1, 1993 and March
Gilbertson worked 4,640 hours as State Auxiliary and had 361 hours in overtime. During
time, Goetzka worked 1,200 hours as State Auxiliary, which was only 38 percent of the time
The exhibits including the payroll records show that the County made a proper
with the State and made the employees whole. The State paid for the services of an auxiliary
and during April and June, it was Goetzka. Gilbertson was paid by the County during that
accounting of the two employees reflect the dual system by which the County has to keep
The accounting system does not indicate that the position of State Auxiliary was
vacated. When Gilbertson assumed duties on County roads, another person had to
on State roads. Management could have just assigned someone to perform those duties, but
employees an opportunity to express their interest. Goetzka and Young expressed their
the senior man was given the assignment.
The County asserts that it has the right to direct the operations and assign employees.
Management and Gilbertson agreed that he would operate the tri-axle truck on County roads
period of time. The State system was temporarily covered by Goetzka. The County did not
as a permanent move. The Union's position that the County must make permanent
a result of temporary assignments will significantly jeopardize the efficiency of the Highway
Department. Questions of when a temporary placement becomes a permanent vacancy will
grievances. Anyone asked to perform duties outside of their job classification would trigger
posting, under the Union's position. Jobs that need to be done quickly could not be started
posting period is finished.
The collective bargaining agreement states in Article 7, Section 1, that:
When it becomes necessary to fill vacancies or new positions
within the Bargaining unit, the
Employer will post such vacancies or new positions for five (5) working days, during which
interested employees may apply by signing the posting. Job postings shall state the job to be
qualifications for the job and the rate of pay. Posted positions shall be awarded as promptly
possible following the posting period to a qualified applicant. The qualified applicant with
seniority shall be selected to fill the vacancy or new position. This Section does not prohibit
Employer from advertising vacancies during the job posting period.
Gilbertson's move to a tri-axle truck created a temporary vacancy in the State
position, which the County posted. The Union objects because the posting indicated that it
temporary job for the summer season, and that the decision would be made by Gabriel and
The fact that the posting was for a temporary position rather than a full-time or
position does not violate the labor contract. The Union believes that employees who had
seniority than Goetzka would have signed the posting if the position had been a permanent
Those employees had the same opportunity as Goetzka to sign the temporary posting.
position would have become permanent was speculative at the time, and the County did the
thing by posting the job as a temporary position.
The posting notice itself has odd language where it states that the decision would be
Gabriel and Olsen. Both Gabriel and Olsen would still have to follow the seniority
Article 7, Section 1 in awarding the temporary position. However, there is no evidence that
they did not, and there is no violation of the contract by the fact that the posting states that
make the decision. If they did not follow the contract in awarding a position, it would have
While the Union believes that all the County did is to have people trade jobs without
the posting requirements of the contract, the record does not support that conclusion. The
shows that there was a temporary opening by Gilbertson's move to a tri-axle truck on County
that the temporary State Auxiliary position was posted, that the State Auxiliary position never
permanent, and that Gilbertson went back to his State Auxiliary position.
The Union has a legitimate interest in seeing that positions are posted correctly. I
contract violation with the temporary posting of this position. It is not necessary to reach the
of when a temporary position becomes a permanent position, because the position was only
during April, May and June of 1994.
The grievance is denied.
Dated at Elkhorn, Wisconsin, this 11th day of December, 1997.
Karen J. Mawhinney, Arbitrator