BEFORE THE ARBITRATOR
IN THE MATTER OF THE ARBITRATION OF A DISPUTE
CITY OF SUPERIOR
SUPERIOR CITY EMPLOYEES' UNION LOCAL #244,
Ms. Mary Lou Andresen, Human Resources Director, City of
Superior, Human Resources
Department, 1407 Hammond Avenue, Room 200, Superior, Wisconsin, 54880, appearing on
of the City.
Mr. James E. Mattson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1701
East Seventh Street, Superior, Wisconsin, 54880, appearing on behalf of the Union.
City of Superior and Superior City Employees' Union Local #244 are parties to a
bargaining agreement that was in effect at all times relevant to this proceeding, and which
for the final and binding arbitration of certain disputes. The Union, by request to initiate
arbitration received by the Commission on July 17, 1997, requested the Commission to
a commissioner or member of its staff to serve as arbitrator. The Commission appointed
Hahn as arbitrator. Hearing in the matter was held on November 19, 1997, in Superior,
There was no transcript made of the hearing, and the parties declined the opportunity to file
The Union stated the issue: "Did the employer violate the terms of the collective
agreement and past practice by denying senior employees the opportunity to be trained and to
a job (voting machine assignment) involving overtime before less senior employees?" If so,
appropriate remedy is to allow senior employees (the Grievants) the opportunity to work the
machines assignment in the future. Likewise, to make the Grievants whole for any and all
and benefits due to the Employer's denial of allowing senior employees the opportunity to
The City stated the issue: Article 3(C) provides that Management has the fight to
promote, schedule, and assign employees to positions with the City. "Did the City violate
18.05 (Overtime) when it assigned the Carpenter Shop employees to be trained in the
Arbitrator statement of the issue: Did the employer violate the terms of the collective
bargaining agreement, Article 18 (Overtime), and past practice when it assigned voting
backup to the Carpenter Shop employees without regard to bargaining unit seniority.
RELEVANT CONTRACT PROVISIONS
1.01 The City of Superior recognizes the Union as the exclusive
representative of its employees
in Public Works, the Equipment Depot, Park and Recreation Department and Wastewater
Plant, except those employees excluded pursuant to Section II 1. 70 of the Wisconsin
the purpose of collective bargaining with respect to wages, hours and working conditions and
conditions of employment. The term "employee" refers to all employees covered by the
terms of this
The City possesses the sole right to operate the City Government
and all management rights
reside in it, subject only to the provisions of this Contract and applicable law. These rights
A) To direct all operations of the City.
B) To establish work rules and schedules of
C) To hire, promote, schedule and assign
employees to positions with the City.
D) To suspend, demote, discharge and take
other disciplinary action against employees for just cause. In the event that
a demotion will cause a layoff, the person demoted willbe laid off.
E) To lay off.
F) To maintain efficiency of City
G) To take whatever action is necessary to
comply with State or Federal law.
H) To subcontract work presently
performed by bargaining unit members provided that regular,
full-time Union members will not be laid off or lose regularly scheduled straight time hours
result of any subcontracting. The City agrees that it shall consult with the Union prior to
subcontracting work presently performed by full-time bargaining unit members.
I) To introduce new or improved methods
J) To determine the methods, means and
personnel by which City operations are to be conducted.
K) To take whatever action is reasonably
necessary to carry out the functions of the City in situations and emergency.
7.01Effective January 1, 1986, seniority according to this
Agreement, shall begin with the
employee's starting date of employment within this bargaining unit. After January 1, 1986,
re-assigned from other bargaining units shall, however, retain longevity, sick leave
vacation based upon his/her years of service credited in such other bargaining unit. Seniority
not be diminished by absence due to illness, authorized leaves of absence or temporary layoff
Seniority fists shall be maintained by each department and on a unit-wide basis. Each
shall be brought up-to-date annually and copies of same
shall be mailed to the Secretary of the
7.02 The seniority of each employee of the
City of Superior shall be maintained within the various
departments. Any person newly employed in any department except returning service
begin at the bottom of the seniority list of that particular department.
It is hereby declared to be the policy of the parties and fully
understood and agreed that in the
interest of the taxpayer, who must be considered a party to this Agreement, overtime shall be
to an absolute minimum.
18.05 Should it be necessary to require
overtime that working day, employees on duty when
the decision to work said overtime is made shall be entitled to work said overtime regardless
seniority. In the event that overtime is to be scheduled, employees will be called to work
overtime work according to seniority rights, provided such employees are qualified to
work scheduled. Senior employees who are not consulted or given priority on such
overtime jobs and therefore do not work such jobs, may file grievance to receive pay for the
of hours worked by a junior employee. Said grievance shall be filed before the end of the
working day. An employee who does not answer a telephone call or who answers by a
answering machine may be considered unavailable for overtime. The other provisions of this
notwithstanding, any employee who has worked sixteen (16) continuous hours shall not work
receive pay for the next eight (8) consecutive hours.
This grievance arbitration involves the City of Superior and Superior City
Local #244 representing employees in the various classifications set forth in Article 1,
Section 1.01. The Grievants allege a contractual and past practice violation by the City of
for not allowing more senior employees in the bargaining unit to bid for work involved in
Sign Shop employees for the handling of voting machines during the municipal elections in
of Superior in April of 1997.
The City of Superior conducts various elections during the course of the year. The
are overseen by the City clerk's office. For many years, the City used manual voting
the clerk's office used employees from the Equipment Depot Division to assist the clerk's
the course of the election by setting up the machines, operating them, and taking them down.
about 1989 or 1990, when the City of Superior computerized voting machines, the decision
by the director of the Public Works Department to assign responsibility for assisting the
in handling of the voting machines to employees in the Sign Shop. The handling of the
machines requires some training and usually consists of a three-day operation, one day before
election to set up the machines, the day of the election, and the day after the election to take
the machines. Normally, on the day of the election, the employees will work approximately
hours of overtime because of the hours of the election.
In 1996, Sign Shop employee, Marlton was on an approved leave of absence for a
time. Mr. Marlton was the most experienced Sign Shop employee to provide assistance to
office regarding the voting machines. The clerk, concerned what might happen if Sign Shop
employees were unavailable during an election, discussed the matter with the director, in
with the City clerk, then assigned a voting machine backup role to employees in the
In 1997, the two employees in the Carpenter Shop were trained to backup the Sign
employees for the February 1997 election. The Union did not have knowledge of this
the backup to the Carpenter Shop. During the April election (April 1, 1997), the two
the Carpenter Shop worked the election and each received eight hours of overtime for the
day of the
election. The two Grievants learned of this work by the Carpenter Shop employees, and
were senior filed a grievance alleging that the opportunity to work the overtime on the day of
should have been posted and employees in the bargaining unit should have been allowed to
the work based on bargaining unit seniority. The Grievants and the Union also alleged a
the contract in that senior employees in the bargaining unit should have been given the
to train for the position of backup to the Sign Shop employees. There exists a master overall
bargaining unit seniority list as well as individual division seniority lists, and there are
seniority lists for the Sign Shop and the Carpenter Shop. (Joint Exhibit 10).
The parties processed the grievances through the contractual grievance and arbitration
procedure and were unable to resolve the two grievances. The hearing in this matter was
held by the
arbitrator on November 19, 1997, in the City of Superior. The hearing closed at 3:30 p.m.
hearing was not transcribed. The parties were given the opportunity, but declined, to file
stated their positions by oral argument at the close of the arbitration hearing.
POSITION OF THE PARTIES
It is the position of the Union that it does not dispute the City's right to establish
backup for the employees in the Sign Shop. The Union position is that once the City
decision that it wanted to provide employees to backup the employees in the Sign Shop for
machine assignment, it should have posted that assignment and allowed employees to bid
their seniority from the overall master seniority list. By not posting that assignment, and
assigning the work to the Carpenter Shop employees, the Union alleges that the City has
only the labor agreement, but long-standing past practice. The Union's past practice
situations where, when overtime work is not assigned to a particular department or division
parades, running races, and sanding, employees are allowed to bid the work in those
their seniority from the master seniority list. The Union does not dispute the long-standing
assignment of voting machine handling to the Sign Shop employees, but that once overtime
be worked by people on the voting machines other than the Sign Ship employees, this should
been offered to the bargaining unit employees on a seniority basis. The Union argues that by
honoring seniority, has been a strong and historical element in the collective bargaining
between the City and Local 244, the City is undermining the concept of seniority and
morale of the workforce. Lastly, the Union position is that the two Grievants should be
for any lost wages and benefits, and that the City should allow senior employees to bid on
which should have been the case with the backup work for the voting machine assignment.
The City position is that this grievance arbitration is not about an issue of overtime,
the City's right under the management rights clause to assign work to the departments and
to which it wishes to assign work. The City argues that it properly, under the collective
unit agreement and past practice, assigned the voting machine backup work to the Carpenter
and the two employees in that Shop. Therefore, when assistance was needed in the April
beyond what the Sign Shop employees could provide or to provide for experience and
training to the
Carpenter Shop employees, the City was doing nothing more than giving the work to the
in the Division to which the work was assigned. This situation did not create overtime work
a division and, therefore, the City was not obligated to post the overtime work and allow
by seniority to bid for it. The City argues that both by contract and past practice the City
moved the voting machine work from the Equipment Depot to the Sign Shop and in other
has assigned new work, such as ski trail maintenance, whatever department or division that it
The City argues that only when overtime is scheduled outside of the division where the work
normally performed or only when
the overtime work cannot be handled by the division to which it is assigned, is the City
post that overtime. Therefore, the City argues, the Union's examples of posting for
overtime for races and parades is not pertinent to the situation of the situation of the voting
assignment. Lastly, the City argues that since the voting machine backup work was
assigned to the Carpenter Shop employees, the overtime situation of
Article 18 is not applicable, and therefore, the grievances should be dismissed.
The facts in this matter are essentially not in dispute. The two Grievants who work
Parks and Streets Divisions have more seniority than do the two employes in the Carpenter
No one disputes that the Grievants and other employes in the bargaining unit could have been
successfully trained to backup the Sign Shop employes to handle the voting machines. Nor is
overtime practice in dispute. Scheduled overtime outside of a particular division or
department is posted for bidding under the master seniority list. But therein lies the crux of
scheduled overtime was assigned on April 1, 1997, to a regular division of the Department of
Works; the two employes in the Carpenter Shop, pursuant to Article 18 and the accepted
practice, were given the opportunity to work the overtime. In order for this work to be
given to the
Grievants, the Union has to prove that the work of backing up the Sign Shop for voting
handling should not have been assigned to the Carpenter Shop in the first place. The Union
prove that when the City wanted, in 1996, to provide that backup, the City had to open up
for bid. In other words, could the City assign the work to the Carpenter Shop without
work up for bidding under the labor agreement and the master seniority list. The answer to
question determines the outcome of this arbitration.
The labor agreement management rights article gives the City substantial rights to
City as it determines is appropriate. In particular, subsection (J) of that article allows the
determine the methods, means, and personnel necessary to run the functions of the City. 1
This is strong language, and nowhere in the labor agreement does there seem to be a
on this right. Without a restriction, I find that this language gives the City the right to have
the backup work to the Carpenter Shop employes without first posting it for bidding under
seniority list. Both parties argued and offered evidence of past practice to prove their
Past practice is a form of evidence commonly used to fill
contractual gaps. The rationale
underlying its use is that the manner in which the parties have carried out the terms of their
in the past is indicative of the interpretation that should be given where the contract contains
is silent on a particular point. In order to be binding on both parties, an alleged past practice
be the understood and accepted way of doing things over an extended period of time.
it must be understood by the parties that there is an obligation to continue to do things this
the future. 2
The Union's past practice evidence goes to prove that where there has been scheduled
overtime, that overtime has been posted. The Union offered testimony that such overtime
posted in the case of working parades, races, and sanding. While it was not specifically
either parties' testimony, this work would appear to be special and normally not assigned to a
particular department or division. The City did not dispute this practice. But the Union did
any testimony of past practice that restricted the City's right under the management rights
assign the work in question to the Carpenter Shop.
The credible testimony of the Public Works Director was that he felt under no
post the backup work, but made the determination to assign the work to the Carpenter Shop
consistent with his practice of assigning work to the department or division where he felt it
be handled. This testimony was supported by the former Union President who testified
under cross-examination that the director had alone made the determination to assign
maintenance of the ski trails
in a City park to the Park Division. 3 This
work was not posted and whether or not any overtime is
worked in maintaining the ski trails is not important, it is whether the Union ever raised an
the ski trail maintenance being assigned to the Park Division; the Union did not. Further,
foreman, Marlton testified that when the voting machine work was assigned to the Sign Shop
never posted. This testimony was confirmed by Public Works Director Vito who assigned
to the Sign Shop from the Equipment Depot in 1989-1990. Again, former Union President
credibly testified that management makes the assignment to the division and then, confirming
understanding, scheduled overtime is first worked in the division where the work is assigned.
if the overtime work cannot be done by the assigned division, is the work put up for bid
master seniority list.
It is clear that the assignment to the Carpenter Shop was an assignment that Vito
discussion with City Clerk Alhberg. Further, the evidence makes clear that the decision to
voting machine backup to the employees in the Carpenter Shop Division was based on
reasons. The evidence also is compelling that the Carpenter Shop is a permanent division
City organizational structure 4 and that the
Carpenter Shop has its own seniority list. 5
In essence, there simply is not sufficient evidence of past practice to override the
to assign the voting machine backup work to the Carpenter Shop. The evidence, even from
Union's own witnesses, supports a finding of a past practice that supports the City's position.
to make clear that I do not find the labor agreement to be ambiguous or unclear on the point
whether management had the right to assign the work to the Carpenter Shop; it had that right
evidence of past practice further substantiates that right. 6 The Union has failed to meet its burden
of proving that the City had to post the assignment of voting machine backup work rather
it to the Carpenter Shop Division. Having properly, under the parties' agreement, assigned
to the Carpenter Shop, the overtime first belonged to the Carpenter Shop employees.
Based on the evidence and consideration of the oral arguments of the parties, I find
is a grievance not about the posting of overtime, but about the City's right to assign work. I
the City did not violate the parties' labor agreement or past practice when it assigned the
machine backup work to the Carpenter Shop Division and, therefore, the grievances cannot
The grievances are denied.
Dated at Madison, Wisconsin, this 15th day of December 1997.
Paul A. Hahn /s/_____________________
Paul A. Hahn, Arbitrator
1. Joint exhibit 1, Article 3, Management Rights, Section
2. LACROSSE COUNTY, CASE 149 No. 53804
MA-9646 JONES (1996).
3. Joint exhibit 1, The Park Division has a separate
seniority list as do the Carpenter Shop and Sign
4. Employer exhibit 1.
5. Joint exhibit 10.
6. Arbitral authority is rooted in the parties' agreement.
First and foremost, this agreement is the
written contract executed by them. To the extent the contract is unclear, the most persuasive
to the resolution of ambiguity are past practice and bargaining history. Each derives its
force from the agreement manifested by the conduct of the parties whose intent is the source
goal of the contract interpretation. Green Bay Board of Education, Case 185 No. 53595
MA-9395 McLaughlin (1996).