BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY (PARKS
WINNEBAGO COUNTY HIGHWAY DEPARTMENT
LOCAL 1903, AFSCME, AFL-CIO
(Parks Department Layoff)
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO,
P.O. Box 2825, Appleton, Wisconsin 54913, appearing on behalf of the Union.
Mr. John A. Bodnar, Corporation Counsel, Winnebago County,
448 Algoma Boulevard, P.O.
Box 2808, Oshkosh, Wisconsin 54903-2808, appearing on behalf of the County.
Winnebago County (Parks Department), hereinafter referred to as the County, and
Winnebago County Highway Department Employes Union, Local 1903, AFSCME,
hereinafter referred to as the Union, are parties to a collective bargaining agreement which
provides for final and binding arbitration of grievances. Pursuant to a Request to Initiate
Grievance Arbitration the Wisconsin Employment Relations Commission appointed Edmond
Bielarczyk, Jr., to arbitrate a dispute over the layoff of employes. Hearing in the matter was
in Oshkosh, Wisconsin on October 3, 1997. Post-hearing arguments were received by the
undersigned by November 19, 1997. Full consideration has been given to the evidence,
and arguments presented in rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
issue and agreed to leave framing of the issue to the undersigned. The undersigned frames
issue as follows:
"Did the County violate the parties' collective bargaining
agreement when it laid off the
. . .
"If so, what is the appropriate remedy?"
1. The management of the Winnebago County Highway
(including the Landfill), Solid
Waste, Airport, and Parks Departments and the direction of the employees in the bargaining
including, but not limited to, the right to hire, the right to assign employees to jobs and
equipment in accordance with the provisions of this
Agreement, the right to assign overtime work,
the right to relieve employees from duty
because of lack of work or for other legitimate
shall be vested exclusively in the County.
2. In the event of change of equipment, the County shall
have the right to reduce the
working force if, in the sole judgment of the County, such reduction in the work force is
and nothing in this Agreement shall be construed to restrict the right of the County to adopt,
install, or operate new or improved equipment or methods of operation.
3. The Union recognizes the exclusive right of the County
to establish work rules.
4. The Union recognizes that the County has statutory and
charter rights and
obligations in contracting for matters relating to some municipal operations. The right of
contracting or subcontracting is vested exclusively in the County.
. . .
The County recognizes seniority. Seniority is defined as the
length of County service as
it is measured from the last date the employee was hired by the County and continuing until
quits or is discharged. Persons who move from temporary or seasonal positions to
positions without a break in their continuous service shall have such service recognized for
purposes of establishing a last date of hire.
Eligibility for benefits shall be determined in accordance with
The term "departmental seniority" shall mean length of
within a specific
department. For purposes of interpreting this article, the departments are the following:
1. Highway (including Highway Department employees
assigned to the Landfill)
4. Solid Waste Department
Seniority shall not be diminished by temporary layoffs or
of absence without pay,
or while receiving temporary Worker's Compensation.
The County shall provide the secretary of the Union with
current department seniority
rosters in December of each year.
For posting purposes, the seniority of full-time employees
be given preferential
treatment over part-time employees regardless of department.
In the event of a layoff among permanent employees of more
than one day's duration, all
seasonal and temporary employees performing work regularly performed by employees
represented by the bargaining unit, shall be laid off first. For purposes of layoff, seniority
be established within each department.
Layoffs of less than one day's duration need not be in
accordance with the inverse order
One day layoffs caused by adverse weather conditions shall be
rotated within each
department separately. In the Highway Department such rotation shall not include the
of janitor-watchman and mechanic. Such rotation shall begin with the least senior employees
being laid off first. No employee shall be laid off for a second day until each employee shall
taken his turn.
In the event of a layoff of more than a day's duration, the
County shall lay off employees
in the inverse order of their seniority in the department affected by layoff. A senior
may induce layoff (bump) into an equal or lower ranking position occupied by an employee
less departmental seniority than himself provided that he is fully qualified to perform the
of the position. In the Highway Department, persons bumping into janitor-watchman
shall be compensated and scheduled in accordance with the terms and conditions in effect for
janitor-watchman positions. In the Airport, persons bumping into custodian positions shall
compensated and scheduled in accordance with the terms and conditions in effect for
. . .
The County and the Union have been parties to a series of collective bargaining
agreements. Local 1903 was originally established as a Highway Department union. Over
years other departments were added and by the 1980's the County's Parks, Airport and Solid
Waste Departments had been added to the bargaining unit represented by the Union.
was added to cover the seniority and layoff status of employes in the four departments.
there is no record that the County has ever laid off an employe for more than one day since
inception of the language. On September 25, 1996 the County hired Robert Way as
County Parks Director. In March 1997, Way determined there was insufficient work in the
Department to warrant full staffing. At that time the Parks Department consisted of the
represented employes and their seniority dates:
On March 7, 1997 Way notified Parks Caretaker Paul Miller, Parks Caretaker Chris
and Foreman/Landscape Designer Gregory Rasske they would be laid off effective 3:00 p.m.
day. Thereafter the instant grievance was filed alleging that the layoff of Miller and Rasske
violated the collective bargaining agreement. The Union did not dispute the layoff of
as he was the least senior employe in the Department.
The Union argues that the manner in which the County interpreted departmental
and conducted the layoff clearly violated the parties' collective bargaining agreement. The
points out it is undisputed that the number of parks and equipment maintained by the County
remained constant for many years. The Union also points out that Miller and Christensen
filed more grievances than any other employe and that they successfully arbitrated their
discharges and suspensions in 1996. The Union does not dispute the County's right to layoff
employes for lack of work.
The Union argues that it is commonly understood that contract language is ambiguous
plausible contentions may be made for conflicting interpretations. The Union asserts its
that layoffs should be by strict departmental seniority is at least as plausible as the County
assertion that departmental seniority is limited by some unwritten, implied practice of
within classification. The Union also argues that the County argument requires a double
that the County interpretation of Section D of Article 7 does not require the inclusion of the
"by classification" but the Union interpretation would require the inclusion of the term
The Union acknowledges its argument is moot if it cannot be harmonized with the
sentence of Section D. The Union asserts the seniority of the second sentence can be
when employes have seniority in more than one department. Thus, Christensen, who had ten
years of seniority in the Highway Department could of exercised this seniority to bump less
Highway Department employe when he was laid off from the Parks Department. The Union
argues that if there is more than one interpretation to the language arbitrators often construe
ambiguous language against the party who proposed or drafted it. The Union stresses it was
County who proposed the language and they should bear the brunt of any ambiguity.
The Union would have the undersigned sustain the grievance and to make the
whole for the entire time they were laid off.
The County contends its actions did not violate the collective bargaining agreement
asserts it was well within its authority in laying off three (3) employes. The County points
Way's testimony that during Winter months it became apparent to him there was a lack of
Consequently he believed it was prudent and advisable to layoff the three (3) employes until
weather warmed and more usage of the parks occurred. The County points out there was no
evidence presented to refute Way's conclusions.
The County acknowledges there is no dispute Rasske and Miller had more seniority
Foreman/Mechanic Vaughan. The County points out Miller's Parks Caretaker position is
classified as a #2 classification and Rasske's Foreman/Landscape Designer position as well as
Foreman/Mechanic position are classified as a #5 classification. The County argues Section
of Article 7 allows an employe to bump a less senior employe who is in a equal or lower
position provided the employe is fully qualified to perform the position's duties. In support
its position the County points to Personnel Director William Wagner's testimony that it was
intent of the parties to layoff employes by classification. Thus Miller could not bump into
Vaughan's position because Vaughan is in a higher classification. The County also asserts
was not qualified to do the Mechanic's duties. The County acknowledges that Vaughan and
Rasske are in the same classification, #5, but asserts that Rasske is also not qualified to
the Mechanic's duties.
The County concludes that as neither grievant provided any evidence which would
demonstrate that they could fully perform the Mechanic's duties that the County acted in
with the collective bargaining agreement. The County would therefore have the undersigned
The record demonstrates that the instant matter is the first time there has been a
more than one day's duration. The record also demonstrates the County contention there was
lack of work was unrefuted by the Union. The Union does not dispute the right of the
layoff employes because of lack of work but argues that when the County determined to
employes it violated strict departmental seniority when it laid off employes by seniority by
classification. The undersigned finds the Union assertion that layoff must be by strict
would lead to an absurd conclusion resulting in employes who are qualified to perform the
remaining work would be laid off and employes who are unqualified would have to be
to perform functions for which they are not qualified or the work would not be done.
only less senior employe than either grievant is the foreman/mechanic. The Union has not
demonstrated that either grievant could fully perform the foreman/mechanic's duties. Thus
Union's position would lead to a conclusion that work would have to be left undone because
neither grievant could not perform it, or, the County would have to also have laid off the
foreman/mechanic in order to have laid off either grievant because of lack of work in their
classification. However, because there was not a lack of work for the foreman/mechanic the
County would have violated the collective bargaining agreement if it laid off the
The Union has also argued that the second sentence of Article 7, Section D, is
with the theory that it allows employes who have gained seniority in more than one
to exercise bumping rights in another department if faced with a layoff from the
department the employe is currently working in. The undersigned finds that in addition
absurd result of the Union's contention, there is no merit in this position for two reasons.
the Union did not present any persuasive evidence that this was the parties intent when they
originally drafted the language. Second, if this was the intent of the parties, the departmental
seniority rosters which are required by Article 6 to be given to the Union each year would
the employes departmental seniority identified for each department they had worked in. No
evidence was introduced at the hearing to demonstrate that the parties even keep records of
employe's seniority in other departments. Thus the undersigned finds the County contention
the second sentence of Section D implies lay off by classification to be a more logical
harmonization of this sentence with the entire collective bargaining agreement.
Therefore based upon the above and foregoing and the arguments, testimony and
presented by the parties the undersigned concludes the County did not violate the collective
bargaining agreement when it laid off the grievants. The grievance is therefore denied.
The County did not violate the collective bargaining agreement when it laid off the
grievants on March 7, 1997.
Dated at Madison, Wisconsin, this 26th day of February, 1998.
Edmond J. Bielarczyk, Jr. /s/
Edmond J. Bielarczyk, Jr., Arbitrator