BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute
GREEN BAY MUNICIPAL EMPLOYEES UNION
DEPARTMENT LOCAL 1672,
Mr. Bob Baxter,, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on
behalf of the Union.
Mr. Jerry H. Hanson, Assistant City Attorney, City of Green
Bay, Law Department, appearing on
behalf of the City.
Local 1672, Council 40, AFSCME, AFL-CIO, hereinafter referred to as the Union,
City of Green Bay, hereinafter referred to as the City or the Employer, are parties to a
agreement which provides for final and binding arbitration of grievances arising thereunder.
Union made a request, with the concurrence of the Employer, that the Wisconsin
Relations Commission designate a commissioner or member of its staff to hear and decide a
filed by the Union. The undersigned was so designated. A hearing was held in Green Bay,
on October 28, 1997. The hearing was transcribed, the parties filed post-hearing briefs, and
record was closed on March 9, 1998.
To maximize the ability of the parties we serve to utilize the Internat and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The Union posits the issue as follows: Did the Employer violate the Labor Agreement
Memorandum of Agreement by assigning seasonal maintenance employees to do pool
work after 3:00 PM on February 19, 1997, in lieu of regular full-time employees? If so,
what is the
The City states the issue as "(w)hether management bargained away, through the
1997, Memorandum of Agreement, its rights to have SME's perform duties, such as moving
after 3:00 P.M., without having to pay the most senior full-time employee
I adopt the Union's statement of the issue.
Article 11, Section (B):
Except where otherwise noted (see
paragraphs K and L), the work day schedule shall be
7:00 AM to 3:00 PM with a half ((1/2) hour on the job lunch period . . .
Article 11, Section (F):
The daily hours for seasonal maintenance
employees shall be 7:00 AM to 12:00 noon
and from 12:30 PM to 3:30 PM . . .
Article 11, Section
All overtime shall be by seniority among those qualified to
perform the work (i.e., Senior
Park Maintenance Worker will be called first for overtime involving driving trucks) . . .
When the employer has less than one week
notice of the need for overtime it shall solicit
interest among qualified employees and award the overtime to the most senior interested
. . .
Article 13, Section
Employees with greater seniority shall have
preference on all jobs where qualified . .
Article 13, Section(H):
Seniority shall be established for each
employee. Seniority shall consist of the total calendar
time elapsed since the date of original employment; however, regular full-time employees
seniority preference over seasonal maintenance employees and the seniority of seasonal
employees and regular full-time employees shall be listed separately.
Memorandum of Agreement (in part):
(Paragraph 3) The
overall interest between the parties signatory to both Collective Bargaining
Agreement and the Memorandum of Understanding is the agreement that no work performed
SME's (seasonal maintenance employees) will in anyway take away overtime that would be
the regular full-time work force.SME's may flood rinks and broom rinks for the purpose of
until they are built up. . .
(Paragraph 5) From noon to nine (9)
o'clock PM, SME's may flood rinks and from Monday
through Thursday may also clean rinks. From noon to break, SME's shall perform whatever
of work are assigned. On Friday, Saturday, and Sunday from noon to nine (9) o'clock and
after break, SME's shall perform such duties as painting shelters, repair and painting of
barrels, pick up litter, and such other work that will not conflict with that which has been
assigned to full-time employees and performed as overtime such as cleaning lots and walks,
emergency call-in work. . .
Colburn Park is owned and operated as a recreational facility by the City of Green
includes an outdoor swimming pool. After the close of the swimming season in 1996, city
authorities determined that a defective boiler in the basement of the building at Colburn Park
to be replaced. These authorities decided to disconnect the flawed boiler, move it out of the
replace it with a working boiler from a building in another city park.
February 17, 1997, a private contractor employed by the City disconnected the gas,
electric, and duct work on both the defective boiler in the Colburn Park building and the
boiler. In anticipation of the removal of the defective boiler and its replacement by the
boiler by February 20, the City had made tentative arrangements with the contractor to
gas, electric, and duct work on that date, if that met the approval of the City's Parks
On February 19, 1997, Charles Leurquin, Jr., a Maintenance
Specialist I employed by the City
of Green Bay, was assigned to relocate the defective boiler. Mr. Leurquin has been
employed by the
City of Green Bay Park Department for the past nineteen years, and has performed pool
work for a number of those years. Since 1995 he has been assigned as the primary person
to do pool
Pool maintenance responsibilities include draining the pools in the
spring and removing any
debris that accumulated in them during the winter. During winters, pumps are repaired,
dismantled and cleaned, and caulking and painting chores are performed. In addition, a
amount of maintenance and scrubbing is done on a year-round basis.
Mr. Leurquin viewed his boiler relocation duties to which he was assigned on
1997 as a form of routine general pool maintenance work, but, paradoxically, also
as "emergency." Mr. Leurquin further believes his duties on February 19 constituted the
type of work
that in the past had been assigned to the assistant pool maintenance person (a full-time
which Mr. Leurquin had previously functioned). According to Mr. Leurquin, with the
one incident, this type of work had always been assigned to regular full-time Park
employees after 3:00 PM. Mr. Leurquin asserted that except for his experience on February
1997, the senior full-time maintenance person worked with him on any overtime pool
work to which Mr. Leurquin was assigned. There is no record of any boiler relocation
having ever been undertaken by the City of Green Bay Parks Department prior to February
by SME's or regular full-time employees.
Although Mr. Leurquin began work on February 19 at his usual starting time of 7:00
wasn't able to begin his Colburn Park assignment on February 19 until approximately 8 or 9
Sometime in the early afternoon, three seasonal maintenance employees (SME's) were
A seasonal maintenance employee is identified in the collective bargaining agreement
the parties as " . . . a regular employee, but who has not been hired for year-round
who is on the active payroll during such times as directed by the Employer. [Article I(C).]
January 1, 1997, the SME's worked a 34 week work-year with daily hours of 7:00 AM to
(including unpaid lunch period of half an hour). But beginning January 1, 1997, the SME's
to a 47 week work-year, with daily hours of work commencing at 12:00 noon and ending at
in the months of December, January, and February (including unpaid lunch period of 1
By contrast, the work-day schedule for full-time employees has traditionally been 7:00
to 3:00 PM (including an on-the-job lunch period of half an hour).
Sometime between 2:15 and 2:30 PM on February 19, Mr. Leurquin called his
Superintendent of Parks, Keith Wilhelm. Mr. Leurquin explained that 1) he would be unable
complete moving the defective boiler by the regular quitting time of 3:00 PM, 2) asked
to finish the assignment on overtime, 3) pointed out that he had three "part-timers" (SME's)
and 4) suggested the Union would be concerned if the SME's continued to work with him
PM (instead of first giving full-time employees the opportunity of overtime work).
At hearing, Mr. Leurquin explained his "emergency" characterization of his Colburn
work on February 19th. Mr. Leurquin simply believed that if the work was not completed in
the contractor to fire up the boiler the following day the pipes inside the park building would
danger of freezing. While Mr. Leurquin claimed no expertise as to weather forecasting, he
water freezes at temperatures of 32 degrees or less and that February winter weather in
can be cold. Mr. Leurquin believed that the outdoor temperature would probably sink below
degrees on the night of February 19.
Mr. Wilhelm professed to be unconcerned as to the SME's because he believed the
relocation project was within the parameters of the agreement between the City and the
also understood Mr. Leurquin to be asking permission for himself to work overtime to finish
Neither did Mr. Wilhelm share Mr. Leurquin's fears as to possible pipe freezing. He
did not regard the situation as constituting an emergency because he knew the outdoor ice
already melted and believed the ambient temperature in the unheated large basement room at
Colburn building to be in the 40 to 50 degree range. Nonetheless, he granted Mr.
to work overtime to finish the boiler relocation, with the assistance of the SME's with whom
Leurquin had been working.
The boiler relocation was apparently completed by 5:00 PM on February 19. Two
that job site at that time. Mr. Leurquin punched out at 6:00 PM; the remaining SME stayed
until 6:00 and assisted on cleaning up.
Both parties agreed that in November, 1996, outside regular working hours, pipes
the Joannes Aquatic Center, another recreational facility owned and operated by the City of
Bay. As a result of this flooding emergency, wet insulation had to be taken out
immediately. Full-time employees were first contacted and requested to assist in containing
the damage. SME's were
subsequently also called-in and worked side-by-side with the full-timers. It does not appear
full-time employee who wished to work overtime on this damage-containment project was
opportunity to do so.
It also appears uncontroverted that in the past SME's have been assigned "scheduled"
overtime to paint the pools at three of the City parks. What is not clear is whether this
assignment was also (first) offered to full-time employees. In any event, scheduled"
overtime that would be known in advance to be scheduled for a day certain; unscheduled
can be emergency work; it can also be work that is so close to being finished at the close of
regular work-day schedule that it makes sense to complete it on the same day.
It appears that the position descriptions for both SME's and full-time park employees
Finally, according to the Union Bargaining Committee Chairperson Stephen Hoffman,
Labor Agreement in effect between the parties was negotiated in the fall of 1996; the
of Understanding (Agreement) was also negotiated in the fall of 1996, but after bargaining
Labor Agreement had been completed.
According to Mr. Hoffman, the language contained in paragraph 3 of the
proposed solely by the Union, and the language contained in paragraph 5 of the
been proposed solely by the City. Both paragraphs were subsequently agreed to by the
Hoffman stated that while Union was agreeable to the City working the SME's outside their
contractual hours, its purpose in proposing paragraph 3 was to protect any overtime that was
normally done by full-timers.
POSITIONS OF THE PARTIES
The Union believes the contract language is clear and
unambiguous, supports the Union's
contention, and therefore makes it unnecessary to invoke any past practice. In support of its
contention the Union notes that if there were no Memorandum of Agreement the Employer
be in clear violation of the Labor Agreement because the SME's would not have been on
after 3:30 PM and the Employer would have been contractually required to award the
the most senior interested employees.
The Union also points to the language contained in the Memorandum of Agreement:
overall intent between the parties signatory to both the Collective Bargaining Agreement and
Memorandum of Understanding is the Agreement that no work performed by the SME's will
way take away overtime that would be done by the regular full-time work force."
According to the Union, this language was negotiated by the Union based on both
language and practices within the bargaining unit, as well as the Union's wish to protect the
rights of the full-time work force. The Union emphasizes that the quid pro
quo for granting the City
the right to work the SME's outside the work-day of full-time employees was the Employer's
assurance that the overtime rights of the full-time work force would not be eroded.
The Union reminds the arbitrator that he has no authority to ignore "clear-cut
language" or dispense his own brand of justice in derogation of contract language.
In the alternative, the Union argues that if the contract language is ambiguous, past
supports the Union's case in the instant matter. The Union claims it is undisputed that
employees have done pool maintenance work after 3:00 PM in the past. The Union notes
when the pipes burst at the Joannes Aquatic Center resulting in SME's and full-time
called in and working side by side, it was only after the Employer had gone through the
of the full-time employees that it then turned to the SME seniority list to obtain more help.
The Union argues that working overtime for time and a half wages is a past practice
established for full-time employees. In the Union's opinion, this "benefit" is of
consistent, and mutually accepted by the parties.
Finally, the Union argues that the bargaining history supports the Union's position.
highlighted the hearing testimony of Local Union President Steve Hoffman in which Mr.
explained the Union's purpose in negotiating the Memorandum of Agreement was to protect
overtime that was normally done by full-timers.
The City argues that it did not bargain away its right to have SME's perform tasks like
a boiler after 3:00 PM by entering into the Memorandum of Agreement. Pointing to
language that states " . . . (f)rom noon to break SME's shall perform whatever duties of
assigned," the City asserts it retained its right to direct the SME duties.
The City highlights other Memorandum language, as well:
"On . . . other days after break, SME's shall perform such duties . . . and such other
will not conflict with that which has been normally assigned to full-time employees and
as overtime such as clean lots and walks, and emergency call-in work."
From this, the City concludes that the parties agreed that SME's may be assigned any
work as long as it doesn't take away from the full-time employees (FTE's) normally assigned
or emergency call-in work.
The City believes the arbitrator should give effect to all clauses and words in the
and, further, should give precedence to the more specific over the more general, if a
should be found to exist.
The City denies that the work in question was either work normally assigned as
FTE's or emergency call-in work.. The City notes that moving a boiler cannot be deemed
normally assigned to FTE's because there is no record that moving a boiler was ever done in
As to the question of whether the work constituted emergency call-in work, the City
that while bargaining unit member Charles Leurquin believed an emergency existed due to
February temperatures, Mr. Leurquin's alarm was not shared by Park Supervisor Keith
City argues that even if Mr. Leurquin's alarm over possible pipe freezing was justified, it
was an alarm
which management did not share.
The City also contends that under "the old system" (Pre-Memorandum of Agreement)
would have been completed without overtime in that the SME's would have started work
Leurquin at 7:00 AM and would have thus been finished by 1:00 PM as to two SME's and
as to the third.
Finally, the City argues that as to bargaining history it should be obvious that the City
intention to be restricted from assigning SME's pool maintenance work or any other work
normally would have been assigned after 3:00 PM. The City points to the language in the
Memorandum of Agreement which allows SME's to perform what ever duties are assigned
until break, and after break "such other work" that will not conflict with normally assigned
of the FTE's and emergency call-in work.
In reply, the Union accuses the City of raising new issues. Specifically, the Union
the City's submission of an affidavit from Park Superintendent Keith Wilhelm with the City's
The affidavit supplemented Mr. Wilhelm's testimony, and specified, inter
alia, that although a private
contractor was scheduled to reconnect the working boiler moved to the Colburn Park
February 20, 1997, that reconnection date could have been changed if needed. 1/
1/ The Union's objection to the admission into
evidence of the affidavis is sustained.
Accordingly, the affidavit will not be and has not been considered by the undersigned. Its
introduction is untimely, and to seek its admission into evidence through this back-door
is inappropriate. See Elkouri, 5th edition (1997) 376.
The Union also objects to the City's submission with its
brief of a Local Climatological Data
sheet, Green Bay, Wisconsin, for February, 1997. (The City requested the arbitrator to take
notice of the temperature information contained on the sheet which, according to the City,
demonstrated the low probability of the Colburn Park pipe freezing in February, 1997.) The
points out that it has not had an opportunity to test this data by cross-examination. 2/ The
further notes that the data fails to establish the proximity between the airport (where the data
collected) and the Colburn Park building, fails to establish the Colburn Park building
the time the boiler was moved., and fails to establish what effect, if any, the wind chill
have had on the building temperature.
2/ The Union's objection to consideration of
the proposed exhibit is also sustained. The Green
Bay area climatological data of which the City urges the arbitrator to take judicial (arbitral)
notice is neither so widely known nor universally established as to warrant regard in this
In addition, like the affidavit the City also submitted with its brief, the data is not timely.
Union points out in its response, new evidence should not be submitted in post-hearing
Elkouri, 5th edition (1997) 376.
The Union requests the arbitrator to take judicial notice that water freezes at 32
Fahrenheit and (presumably using the data the City attempted to submit) that the average
on both February 19 and 20, 1997, was below freezing.
The Union asserts that its framing of the issue is the more appropriate one. The Union
believes that Paragraph 3 of the Memorandum of Agreement is clear and leaves no question
reasonable person's mind as to the intent of the parties. On the other hand, the Union argues
language of Paragraph 5 of the Memorandum of Agreement " . . . does not address the work
done which gave rise to this dispute."
The Union notes that the Memorandum of Agreement lists specific work the SME's
permitted (e.g., painting shelters, repair and painting of benches, and picking up litter), but
list boiler relocation. Therefore, according to the Union, the Employer cannot expand those
specifically listed duties to now include the work that gave rise to this dispute.
The Union "vehemently disagrees" with the Employer's argument that this type of
(boiler relocation) has not been normally assigned to full-time employees. The Union views
in question as constituting "pool maintenance work." The Union notes that full-time
given overtime assignments to perform pool maintenance work when the pipes burst at the
Aquatic Center, and that SME's were called in only after all of the full-time employees had
The Union takes further issue with the Employer's view that the boiler relocation work
Colburn Park building did not constitute an emergency. The Union argues that the
overtime for a full-time employee to complete the moving of the boiler on February 19
Management's belief that " . . . there was a pressing need to get the work done."
The Union disagrees that the work would have been done without overtime under "the
system." The Union argues that under "the old system" the job would have had to be
overtime because the SME's would have been on lay-off (in the months of December,
February). The Union thus requests the arbitrator to discard the "false assumptions" relating
practice of the City.
The Union contends the Employer's arguments as to bargaining history not only miss
point, but are " . . . based on fabrication and speculation." Citing Elkouri, Fourth
Kerr) for the proposition that "(t)he collective bargaining agreement should be construed not
narrowly and technically, but broadly so as to accomplish its evident aims," the Union argues
"rarely is the intent of the parties stated as boldly as it is in the instant case." The Union
the Labor Agreement and the Memorandum of Agreement work in conjunction with each
restates Paragraph 3 of the Memorandum as to the "overall intent between the parties."
The differing statements of the issue to be resolved offered by the parties make clear
each perceives a different interest to be at stake. The City seeks to protect what it perceives
essential management rights in its assignment of work to the SME's. The Union, on the
seeks to preserve what it views as overtime that, but for an expanded work year and an
work schedule for seasonal maintenance employees, would have been awarded to full-time
Each party looks to the Memorandum of Agreement for justification. Each believes it
successfully bargained for that which it claims.
In the Memorandum of Agreement, the parties generally express their overall interest
" . . that
no work done by the SME's will in any way take away overtime that would be done by the
work force." More specifically, the City agrees that it will not assign work to its seasonal
maintenance employees that would " . . .conflict with that which has been normally assigned
to full-time employees and performed as overtime such as cleaning lots and walks, and
Thus the issue confronting the parties boils down to determining the type of work to
the SME's were assigned after 3:00 PM on February 19, 1997. If completing the boiler
project constitutes "work normally assigned to full-time employees and performed as
as cleaning lots and walks" or if it constitutes "emergency call-in work," then the City was
contractually obligated to offer overtime work opportunities to three more of its full-time
employees instead of allowing the three SME's to complete the task they had begun earlier in
afternoon, along with full-time Park Employee Charles Leurquin.
The easier question asks whether completing the boiler relocation project on February
constitutes emergency call-in work. In my opinion it does not.
I recognize and respect the fact that Mr. Leurquin viewed the situation as an
conclusion was based on his belief that if the boiler was not relocated on February 19, the
hook-up could not be accomplished the following day as scheduled; if the boiler hook-up
delayed, Mr. Leurquin feared the pipes might freeze.
In Mr. Wilhelm's opinion, finishing the project on February 19 did not constitute an
emergency. Standing alone, his testimonial conclusion could be discounted as retroactively
self-serving. But it appears from his testimony that the conclusion he reached on February
19 was not
mere whimsy. It was supported by objective considerations: 1) Mr. Wilhelm knew that
temperatures had warmed up sufficiently for the Green Bay ice rinks to have melted; 2) Mr.
believed the ambient temperature in the large, unheated Colburn Park building basement was
40 and 50 degrees Fahrenheit.
Since Mr. Wilhelm had a rational basis for his conclusion, its ultimate correctness or
incorrectness is immaterial within the context of determining this grievance. Defining
is, in part, what Mr. Wilhelm, as a manager, is paid to do. It is a responsibility to which
may offer input, and a wise manager would solicit Mr. Leurquin's input. But the ultimate
as to emergency or not is solely that of Mr. Wilhelm.
It is true that Mr.
Wilhelm had tentatively scheduled a private contractor to reconnect the
working boiler on February. Very likely rescheduling that work would have worked a
inconvenience on both Mr. Wilhelm and the contractor - an inconvenience that both
preferred to avoid. But this kind of impetus to completing the project seems a distant cry
genuine emergency, such as the one that occurred when the pipes actually burst at the
Aquatic Center.In the latter instance, immediate action was required to contain and mitigate
property damage that had already occurred; no such imperative is apparent in the instant
A closer question is presented as to whether the work in question is work which is
assigned to full-time employees and performed as overtime such as cleaning lots or walks.
The City points out it never had occasion to relocate one of its park building boilers in
past. From there the City argues that since a city boiler has never been moved or relocated
employees in the past (to the city's knowledge), it can not be deemed "work normally
assigned to full-time employees and performed on overtime."
I reject that argument as focused too narrowly. However, the examples provided in
Memorandum of Agreement language do offer some help, i.e., " . . . such as cleaning
walks or lots."
Clearly the phrase is intended to be illustrative. It is also limiting. Moreover, the absence
examples or illustrations also suggests a limitation to the kinds of work reserved for
Common sense seems to confirm this judgment. Otherwise, given the similarity of
descriptions between the full-timers and SME's, there would be little work the City would be
permitted to assign to the SME's after 3:00 PM if the full-timers wanted to do the same
work on an
overtime basis. In this event, the adjusted SME hours would be meaningless and the City
struck a worthless bargain.
I do not believe that was the parties' intent. Under their bargain, the City obtained
for its SME's; the Union obtained a guarantee of certain overtime for the full-timers as well
additional dues revenue for the benefit of its entire membership. The bargain appears to
a reasonable one for each side.
This is not to say the Memorandum language necessarily limits the overtime work
for full-time employees to only cleaning lots or walks. E.g., the examples could be read as
any work that involves property clean-up or maintenance, consistent with the parties'
even with that broader interpretation, boiler relocation just doesn't seem to fit.
Simply stated, moving a boiler from one building to another appears to fit into an
different type of work category than "cleaning lots or walks." From this I necessarily infer
work in question was not considered by the parties as meeting the definition of "work
assigned to full-time employees such as cleaning lots or walks" at the time agreement to this
The Union's points to the overtime assignments resulting from the pipes bursting at the
Joannes Aquatic Center where full-time park employees were the first called-in (by seniority)
with the emergency. But the work produced by that occurrence was not "(overtime) work
assigned to full-time employees." It was emergency call-in work. As such, it offers no
the instant matter, for the instant matter was not an emergency.
Mr. Leurquin did assert that pool maintenance work had always been assigned to
regular full-time park employees after 3:00 PM. He claimed that except for his experience
on February 19,
1997, the senior full-time maintenance person worked with him on any overtime pool
work to which Leurquin had been assigned. Unfortunately, Mr. Leurquin provided no
examples of the work that was involved or give any indication of the number of instances.
information he gave is simply too vague to be of any material assistance. Moreover, it is not
to me how "pool maintenance work" fits into the category of work described by the
illustrative examples of "cleaning lots or walks."
Nor is the fact that one full-time employee was held-over to work on the project
that the work was of a type normally performed on overtime by full-time employees. As the
pool maintenance person, Mr. Leurquin's continued presence after 3:00 PM may have been
necessary as a means of providing continued general direction to the SME's as the four men
together to complete the project. But under the contract (Memorandum) language, the need
to hold-over Mr. Leurquin to continue to act as the "working foreman" on the project does
trigger a requirement that his co-workers also be full-timers on overtime, instead of SME's.
depends on the nature of the work.
The Union emphasizes the general restriction in the Memorandum of Agreement in
parties concur that " . . . no work performed by the SME's will in any way take away
would be done by the regular full-time work force." The Union asserts this language is clear
Standing alone, the Union-drafted language now relied on by the Union (paragraph 3)
and unambiguous. But it cannot be read in a vacuum. For the Union overlooks the language
by the City (paragraph 5) found two paragraphs later that shapes, hones, and limits the more
restriction to "work normally assigned to full-time employees and performed as overtime,
cleaning lots and walks."Completing the task of relocating a boiler just isn't in the same
category as "cleaning lots and walks."
As the arbitrator of this dispute, I am restricted to the four corners of the agreement.
task is limited to determining the intent of the parties of which the best evidence is the actual
of the agreement. Within that parameter, based on the language of the Memorandum of
and the evidence and testimony of this case, I have no alternative but to find for the City.
The grievance is dismissed.
Dated at Madison, Wisconsin this 5th day of June, 1998.
Henry Hempe, Arbitrator