BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DOUGLAS COUNTY PROFESSIONAL
SERVICES EMPLOYEES UNION,
LOCAL 2375, AFSCME, AFL-CIO
(Grievance of Mark Rooney)
The above-captioned parties, hereinafter the Union and the County or Employer,
were signatories to a collective bargaining agreement which provided for final and binding
of grievances. Pursuant to a request for arbitration, the Wisconsin Employment Relations
Commission appointed the undersigned to hear a grievance. A hearing was held on February
1998 in Superior, Wisconsin. The hearing was not transcribed. At the hearing, the parties
to bifurcate an arbitrability issue from the merits of the grievance. Accordingly, they filed
the arbitrability issue which were received by March 11, 1998. Having considered the
evidence and the arguments of the parties, I hereby render the following Award on the
Is the Rooney reclassification grievance arbitrable?
The parties 1996-1997 collective bargaining agreement contained the following
Section 5. A. Step Four: The Union may within
ten (10) working days following the receipt
of the response from the Personnel Director, petition the Wisconsin Employment Relations
Commission (WERC) to appoint an impartial arbitrator from its staff to conduct a hearing
a written decision on the matter which shall be final and binding on the parties. The Union
provide the County with a copy of the petition for arbitration at the same time the Union files
petition with the Wisconsin Employment Relations Commission (WERC).
B. Arbitration Costs: The cost of the
WERC filing fee shall be paid by the party requesting
arbitration unless otherwise mandated by state statute. Each party shall be responsible for
it incurs through arbitration.
C. Role of Arbitrator: The Arbitrator
shall not add to, subtract from, or vary the terms of
this Agreement. All decisions must be rendered in accordance with the language of this
As part of its governmental functions, the County operates a Department of Human
The Union is the exclusive bargaining representative for the professional employes in that
The County and the Union have been parties to a series of collective bargaining agreements,
recent being the 1996-1997 agreement. That agreement was in effect from January 1, 1996
December 31, 1997.
Mark Rooney is a social worker employed by the County's Department of Human
As such, he is in the bargaining unit referenced above. In May, 1997, Rooney sought to be
reclassified from a Social Worker III position to a Social Worker V position. The request
and he grieved. Rooney's grievance was processed through the contractual grievance
appealed to arbitration. An arbitration hearing was ultimately scheduled on the grievance for
29, 1997. On October 14, 1997, the parties mutually requested a postponement of the
hearing so that the underlying issue could be addressed in contract negotiations. Pursuant to
request, the arbitration hearing was cancelled.
In the fall of 1997, the parties commenced negotiations for a successor labor
their 1996-97 agreement. One issue which was scheduled to be addressed in those
reclassification (i.e. how one moves from one social worker classification to another) and
the number of social worker classifications in the department. The parties were still
terms for a successor agreement on the hearing date (February 10, 1998).
In December, 1997, the instant grievance was rescheduled for hearing. As was just
the arbitration hearing was held February 10, 1998. At that hearing, the County contended
grievance was not arbitrable because the parties' 1996-97 contract had expired on December
1997 and the arbitration clause had evaporated as of that date. The parties decided to
arbitrability issue from the merits.
POSITIONS OF THE PARTIES
The Union's position is that the grievance is arbitrable. It makes the following
support this contention. First, the Union avers that the County never raised the issue of
before the date of the arbitration hearing. It cites numerous arbitration awards for the
that when an employer raises arbitrability for the first time at the arbitration hearing, it has
preserved that defense and has waived it. Second, the Union relies on the contractual
clause itself. According to the Union, the intent of that provision is to give the Union its
court", and that intent should be honored by arbitrating the instant grievance. Third, the
asserts that it has the fundamental right to arbitrate grievances during a hiatus between labor
agreements because of the presumption of arbitrability. To support this proposition, it cites
private and public sector arbitration awards which have held that arbitration can proceed
contract hiatus. The Union argues that if it could not arbitrate during a contract hiatus, this
upset the parties' status quo.
Finally, the Union contends that there was no agreement among the
parties in their contract negotiations to bar this particular grievance from going to arbitration.
therefore requests that the grievance be found arbitrable.
The County's position is that the grievance is not arbitrable. It makes the following
arguments to support this contention. First, the County argues that the arbitration clause in
parties' 1996-97 agreement evaporated after that agreement expired. To support this
premise, it cites
the Commission's Greenfield School District decision 1/ for the premise that:
1/ Dec. No. 14026-A (Greco, 10/76),
aff'd (WERC, 11/77).
the contractual right to arbitrate should not be extended past a
contract's termination date,
unless the parties mutually agree to do so. To hold otherwise would turn a voluntary process
an involuntary one and it would be a direct repudiation of the well established concept that
is a completely voluntary process and that it rests upon a contractual basis.
Second, the County argues that nothing in the contract entitles the grievant to a
its view, the grievant does not have a vested, accrued right to a reclassification under the
collective bargaining agreement. Based on the foregoing, the County requests that the
found not arbitrable.
At the hearing, the County asserted that there was an agreement by the parties to hold
grievance in abeyance until the contract negotiations for a 1998-99 collective bargaining
were finished, and that the Union reneged on that agreement. The Union disputed these
Since it was the County who asserted the existence of such an agreement, it had the burden
showing its existence. I find it did not do so. Additionally, it is noted that after raising this
contention at the hearing, the County did not even address it in their brief. That being the
case, it is
held that no agreement is documented in the record which precludes the arbitration of this
Having so found, attention is turned to the question of whether the grievance is
Based on the rationale which follows, I find that it is. It is noted at the outset that the action
led to the grievance (i.e. Rooney requested a reclassification which was denied), as well as
processing of the grievance through the grievance procedure, occurred in 1997. Thus, all the
foregoing events occurred during the term of the parties' 1996-97 collective bargaining
In fact, even the arbitration hearing was originally scheduled to be held in 1997 (specifically,
1997), but that hearing date was cancelled at the parties' mutual request. The hearing date
rescheduled to February, 1998. The arbitration hearing date is the only event in this case
occurred in 1998. Every other date relative to the grievance and its processing occurred
December 31, 1997 (i.e. the date when the parties' 1996-97 agreement expired). Since the
grievance arose and was processed during the term of the parties' 1996-97 agreement, I
believe it (i.e.
the Rooney grievance) can fairly be characterized as a pre-expiration grievance.
The Wisconsin public sector case law concerning an employer's obligation to arbitrate
pre-expiration grievances after a contract expires is quite clear. It was stated as follows in
School District, Dec. No. 24272-B (WERC, 3/88) at page 7:
[A]n agreement to arbitrate is not
extinguished as regards a grievance concerning pre-expiration events by the
fact that the agreement expired before the grievance was initiated and/or
fully processed through the grievance and arbitration procedures. In other words, the fact
grievance arising prior to expiration has not been initiated or fully processed through
grievance and arbitration procedures by the time of expiration does not, alone, extinguish the
contractual duty to complete those processes as to such grievances. See,
e.g., Alma Center
Schools, Dec. No. 11628 (WERC, 7/73) ("The fact that the 1971-72 agreement has expired
not excuse Respondents from arbitrating a dispute which arose during the term of said
Id. at 8); and Abbotsford Schools, Dec. No. 11202-A (3/73) ("The fact that the
now expired does not excuse the Respondents from their duty to remedy any breaches of the
agreement arising during the term of the agreement." Id. at 8.),
aff'd by operation of law,
11202-B (WERC, 5/73).
The County urges the Arbitrator to rely instead on the Commission's Greenfield
2/ In that case, it was held that the Employer was not required to arbitrate a grievance after
contract's termination. That case dealt with a grievance which arose after the parties'
bargaining agreement expired. In other words, it involved a post-expiration grievance
not a pre-expiration grievance as did the cases noted in the preceding paragraph.
The following sentence from
Greenfield shows this:
2/ Supra, footnote
Accordingly, based upon the above noted considerations, the
District here was not required to
arbitrate a grievance which was filed and which arose over a fact that occurred after the
Footnote 21/ provides as follows:
21/ This ruling, which is limited to the facts herein, does not
conflict with the well established
principle that an employer must arbitrate a grievance which arises before a contract's
irrespective of whether the contract terminates by the time that the grievance is ripe for
See, for example, Abbotsford Public Schools Jt. School District No. 1, Decision No.
The case law quoted above establishes that an Employer's obligation to arbitrate
after a contract expires depends on whether the grievance is a pre-expiration or a
grievance. If it is the former (i.e. pre-expiration) the grievance is arbitrable, while if it is
the latter (i.e.
post-expiration) the grievance is not arbitrable. It has previously been found that the Rooney
grievance is a pre-expiration grievance, so it follows that it is arbitrable even though the
1996-97 agreement has expired.
Having reached the conclusion that the Rooney grievance is arbitrable, it is
address the Union's argument that the County did not raise the arbitrability issue until the
Accordingly, no comment is made concerning same. No comment is also made on the
contention that nothing in the contract entitles Rooney to a reclassification. That argument
the merits and will be addressed in a subsequent decision.
Based on the foregoing and the record as a whole, the undersigned issues the
The Rooney reclassification grievance is arbitrable.
Dated at the City of Madison, Wisconsin this 5th day of June, 1998.
Raleigh Jones, Arbitrator