BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL LODGE NO. 697, INTERNATIONAL
BOILERMAKERS, IRON SHIP BUILDERS,
FORGERS AND HELPERS, AFL-CIO
FELKER BROTHERS CORPORATION
Mr. Howard L. Cole, International Representative, International
Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO, appearing on behalf of the
Foley & Lardner, Attorneys at Law, by Ms. Ann I.
Mennell, appearing on behalf of the
Local Lodge No. 697, International Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers and Helpers, AFL-CIO, herein the Union, and Felker Brothers
herein the Company, jointly requested the Wisconsin Employment Relations Commission to
designate the undersigned as an arbitrator to hear and to decide a dispute between the parties.
undersigned was designated as the arbitrator. Hearing was held in Marshfield, Wisconsin,
November 11, 1997. A stenographic transcript was made of the hearing and a copy of said
transcript was received on November 21, 1997. The parties completed the filing of
arguments on December 22, 1997.
The parties were unable to stipulate to the issues and agreed that the arbitrator should
frame the issues.
The Union stated the issues as follows:
Did the Company violate the contract by not assigning machine
tool builders to operate the
newest heat treat/annealing oven? If so, what shall the remedy be?
The Company stated the issues as follows:
Was the grievance timely? Did the Company violate the
collective bargaining agreement by
classifying the annealing furnace work as semiskilled. If so, what is the proper remedy?
The undersigned believes the following to be an accurate statement of the issues:
Was the grievance timely filed? If so, did the Company violate
the contract by classifying the
work on the new annealing furnace as semiskilled work? If so, what is the proper remedy?
The Company manufactures stainless steel pipe products. There are approximately
employes covered by the contract between the Company and the Union. The employes, for
most part, are divided into two broad groups: semiskilled and skilled. The skilled workers
specific job classifications, whereas most of the semiskilled employes are in the general
classification of semiskilled. Semiskilled employes can bid into certain skilled classifications.
The Company has developed an extensive skill advancement guideline to set out the
and skills required for an employe to progress from one skilled job to another. The skill
advancement guideline was first placed in the parties' 1990-93 contract.
In October of 1996, at the monthly Company/Union meeting, the Company informed
Union that it was seeking approval for the purchase of an annealer. At the Company/Union
meeting in November of 1996, the Company informed the Union that the purchase of an
had been authorized. Shortly after said meeting, the Company's plant manager showed the
annealer to the president and vice-president of the Union's local and told them that he
assigning semiskilled employes to operate the annealer. The local officers did not agree or
disagree with said statement, but merely asked to be notified when the annealer began
The annealer was placed in operation on February 26, 1997, with the work being
performed by semiskilled employes. At the monthly Company/Union meeting held on May
1997, the Union representatives questioned whether the work on the new annealing furnace
properly classified as semiskilled work or whether the work should be assigned to the skilled
classification of machine tool builder. In a memorandum to the local Union representatives
dated May 13, 1997, the Company set forth its reasons for assigning semiskilled
operate the annealer. On May 22, 1997, the Union filed a grievance alleging that the
violated the contract by not assigning the work on the new annealer to employes in the
classification of machine tool builder.
At the time it purchased the new annealer, the Company had two other smaller
which were located in the tool room area by the machine shop. The two smaller annealers
been used primarily for making tools or other items for internal use by the Company.
the smaller annealers have been used to run production parts for sale to a customer when
schedules did not allow sufficient time to send the parts to a subcontractor for annealing.
the smaller ovens were used for production runs, a machine tool builder usually operated the
annealer. Prior to purchasing the new annealer, the Company had subcontracted most of the
annealing work, approximately 90-95%.
POSITION OF THE UNION
The Company never informed the Union of its intent to strictly enforce the
limits. There had been a long-standing practice of trying to resolve grievances without
the time limits. Further, the Union was never notified when the annealer went into
Moreover, the grievance was of a continuing nature, since each use of the annealer was a
violation of the contract. The grievance should be considered to have been filed on a timely
The Union never agreed that semiskilled employes should operate the new annealer.
of the required skills for classification as a machine tool builder is the ability to "understand
be able to apply heat treating." If the parties had thought heat treating was not a part of the
machine tool builder job, then it would be unnecessary to have language referring to heat
Production of customer-demand products annealed in the plant was always performed by
tool builders. Such production was not of a minimal nature, but amounted to hundreds of
over the years. Machine tool builders continue to use the other two annealing ovens.
The Company's decision to end the subcontracting of annealing work and to do the
in-house does not make annealing new work. It is the same work which the machine tool
have been performing, but in a bigger oven. The Company should have negotiated the wage
for the new annealer, rather than making a unilateral change. Since the work being
is unchanged, there is no evidence of a change in operations justifying the reclassification of
work to a lower pay range.
The Union requests that the annealing work be assigned to the machine tool builders
that the semiskilled employes, who performed the work, be paid the difference between their
hourly rate and the machine tool builder rate for all hours those employes worked on the
POSITION OF THE
The grievance was not timely filed. The purchase of a new annealer was discussed in
the October and November 1996 Company/Union meetings. In November of 1996, the
Company's plant manager showed the new annealer to local Union officers and informed
that he planned to assign the work to employes in the semiskilled classification. The
went into operation on February 26, 1997, but the Union first raised the issue of the
of the employes performing the annealing work on May 8, 1997. As early as November of
the Union was put on notice that the annealer would be going into operation and it should
known when the machine began production. The grievance was not filed within the ten-day
period required by the contract. Neither did the Union request an extension of time for filing
grievance. Although the Company may have overlooked late grievances in the past,
law is clear that even a well-established past practice cannot alter the unambiguous language
The annealing work was new work and was not equivalent to the annealing work
performed by the machine tool builders. The two annealers used by the machine tool
much smaller than the new annealer and were never meant to manufacture product for
Rather, the smaller annealers were used primarily for making tools or other equipment for
use by the Company. Until the new annealer went into production, approximately 95% of
annealing of products for customers was subcontracted. The tool room annealers were used
annealing products for customers only on sporadic occasions.
The contractual skill advancement criteria are not job descriptions. The skills listed
each job classification do not create a right for that job classification to forevermore have the
exclusive rights to perform any work listed as those skills. There are numerous instances
more than one job classification is responsible for mastering a certain task. The guidelines
intended to provide criteria for measuring skills and readiness for advancement and to ensure
adequate training of employes.
The Company properly applied the comparable pay for comparable work provision in
contract. The annealing work is repetitive in nature, similar to other tasks performed by the
semiskilled workers, such as the pickling process. Such repetitive work is in contrast to the
treating work performed by the machine tool builders. In fact, only one machine tool builder
fully familiar with all heat treating processes which might be used, in addition to annealing.
The Company requests that the grievance be denied.
ARTICLE 3. WAGES AND
. . .
Section 3. Job Classification Descriptions
. . .
Machinist Posting, Progression & Qualifications
Skill II machinist shall be selected by posting. After 24
in the skill II job an
employee may progress to skill I; after 18 months in skill I an employee may progress
Machinist Specialist I; after 18 months in Machinist Specialist I an employee may
Machine Tool Builder. Each progression step includes satisfying the Standard Skill
Guideline (Schedule D) requirement.
. . .
Section 7. New Work
Whenever new work is required which has not been
classified, the Company
will meet and discuss the work with the Union. The parties will agree on the rate of pay for
new work in accordance with the principle of comparable pay for comparable work. This
handled as an agenda item at the monthly Company/Union meeting. If no agreement is
the Company will put a rate into effect and the parties will continue discussion for 60 days.
final agreement is reached, the matter is subject to the grievance procedure.
. . .
ARTICLE 5. GRIEVANCE AND ARBITRATION
Section 1. Grievances
. . .
Any grievance not presented in writing to the Plant
Superintendent or his designee within
ten (10) working days of the date of the action giving rise to the grievance or within ten (10)
working days of the date on which the employee first received knowledge or (or should have
received knowledge of) or (sic) been made reasonably aware of the cause of the
be barred. Either party may extend the time limits by written mutual agreement.
. . .
ARTICLE 16. MANAGEMENT
The Company shall have the unqualified and undisputed right
manage its own affairs
in all and every respect except that in the exercise of such management the Company will not
contravene the terms of this Agreement.
. . .
STANDARD SKILL ADVANCEMENT GUIDELINE
. . .
MACHINIST TOOL BUILDER - To be eligible and
capable of performing the available work
as a Machinist Tool Builder the individual must have completed 18 months working in
specialist 1, met all the requirements for machinist 1, completed the "Advanced
Techniques" course with a minimum grade of "C", commit to participate in on-going
seminars scheduled on company time and expense and demonstrate the ability to perform the
Tasks Required - The individual must have
demonstrated the ability to satisfactorily perform
the following tasks:
1. Be able to perform close tolerance machining.
2. Be able to machine elbow dies & tube mill rolls
3. Be able to build jigs and Fixtures from prints
4. Understand and be able to apply heat treating
5. Be able to plan operation sequence, determine appropriate
machine tools to use, determine
set up requirements including jigs and be able to perform all operations required on special
"machine building" type projects assigned to machine shop. ie: building new edge trimmer,
fixturing for elbow welders, modifying an existing machine, etc.
6. Be able to perform non-electrical type repairs on machine
tools and maintain machine
7. Be able to make decisions/problem solve.
. . .
The record is clear that the Union did not file the grievance at issue herein within the
day period following the date on which the new annealer was put into operation. Although
Company did not notify the Union when the new annealer started production, it is difficult to
accept the Union's assertion that, for over two months, it was unaware the annealer
production until just prior to the Company/Union monthly meeting on May 6, 1997.
Section 7, Article 3 of the contract specifies that if no agreement on the rate of pay for new
is reached, then the Company will implement a rate and the parties will continue discussion
60 days. There is nothing in the record to show that the Company attempted to continue
discussion over the wage rate once the new annealer went into operation with the operators
paid at the semiskilled rate. If the Company had notified the Union of the wage rate being
to the operators when the annealer actually went into production, then its position on
may have been more persuasive. Even if the Company had provided such notification,
witnesses testified, without contradiction, that the parties have a past practice of not
ten-day requirement for filing grievances, because they attempt to resolve issues before the
are filed as formal grievances. Generally speaking, the Company is correct in asserting that
well-established past practice cannot alter unambiguous contractual language. Nevertheless,
the parties have been lax as to observing the contractual time limits, as appears to be the case
herein, the undersigned does not believe the time limits should be strictly enforced until
been given that one of the parties intends to demand strict adherence to the contractual time
in the future. Since such notification was not given to the Union by the Company prior to
filing of the instant grievance, the undersigned finds that the grievance was timely filed and
the merits of the grievance should be determined.
The Union's position on the merits of the grievance rests primarily on two assertions:
(1) the fact that one of the seven itemized tasks which a machine tool builder is
expected to be
able to satisfactorily perform reads "Understand and be able to apply heat treating," and,
practice over the past twenty-five years of having production heat treating performed by
With respect to the first argument of the Union, the arbitrator does not agree with the
Union's interpretation of the meaning of the language found in the contract under the tasks
required of a machinist tool builder. The itemizing therein of certain skills required to attain
classification of machinist tool builder does not mean that all of the work in the plant
those skills will be performed only by said classification. Rather, the Company has a more
reasonable interpretation when it concludes that the listing of requirements does not reserve
machinist tool builder classification all the work in the factory which uses the listed skills,
instead, sets forth the range of skills an employe needs to master before the employe can
into the higher paid classification for which the multiple skills are required. One, perhaps
primary one, of the reasons for giving higher wage rates to skilled employes than are given
semiskilled employes is that the skilled employes are expected to have an ability to perform
requiring either a higher level of a skill or multiple skills. Further, the Company accurately
to several examples where more than one job classification is responsible for mastering the
necessary to perform a certain task, which also contradicts the Union's interpretation.
The record does not support a finding that the operation of the new annealer requires
level higher than the level possessed by the semiskilled employes. The undersigned is
that the training necessary to operate the new annealer is quite different from the more
extensive training required to attain the classification of machinist tool builder, which
classification is expected to be able to perform different heat treating applications, one of
The record establishes that at least one of the employes classified as a machinist tool
builder has done production work on the two smaller annealers. Apparently, such production
necessary for orders which did not have a sufficient lead time for the orders to be sent to a
subcontractor. The Company has been utilizing subcontractors to perform most of the
of parts being produced for customers for several years and the two small annealers have
utilized primarily for the production of items to be used internally by the Company, such as
Such a background does not rise to the level of a binding past practice, which practice
prevent the Company from treating the work on the new annealer as new work and assigning
work to the semiskilled classification.
Based on the foregoing and the evidence as a whole, the undersigned enters the
That the grievance was filed on a timely basis and, therefore, it is arbitrable on the
that the Company did not violate the contract by assigning the work on the new annealing
to employes classified as semiskilled; and, that the grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 13th day of March, 1998.
Douglas V. Knudson /s/
Douglas V. Knudson, Arbitrator