BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION, LOCAL 662, affiliated
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
COUNTY OF CHIPPEWA, WISCONSIN
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Andrea F. Hoeschen,
1555 North RiverCenter Drive, Suite 202, P.O. Box 12993, Milwaukee, Wisconsin 53212,
on behalf of General Teamsters Union, Local 662, affiliated with the International
Teamsters, AFL-CIO, referred to below as the Union.
Ms. Margaret M. McCloskey, Chippewa County Personnel
Director, 711 North Bridge Street,
Room 100, Chippewa Falls, Wisconsin 54729-1876, appearing on behalf of County of
Wisconsin, referred to below as the Employer or as the County.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed on behalf of Mary E. Hemauer, who is
below as the Grievant. The Commission appointed Richard B. McLaughlin, a member of its
Hearing on the matter was held on March 11, 1998, in Chippewa Falls, Wisconsin. The
not transcribed. The parties filed briefs by May 7, 1998.
The parties stipulated the following issues for decision:
Does the County violate the collective bargaining agreement
denying unit employes the
ability to hold more than one position with the County?
If so, what is the appropriate remedy?
ARTICLE 2 - MANAGEMENT RIGHTS
Except as expressly modified by other provisions of the contract,
the County possesses the sole
right to operate the County and all management rights repose in it. These rights include but
limited to, the following:
A. To direct all operations of the County;
B. To hire, promote, transfer, schedule and
assign employees in positions within the County;
. . .
E. To maintain efficiency of County
F. To take whatever action is necessary to
comply with State or Federal law;
. . .
J. To determine the methods, means and personnel by which
County operations are to be
. . .
ARTICLE 4 GRIEVANCE
. . .
Section 5. Steps in Procedure.
. . .
4. Arbitration. . . .
F. Decision of the Arbitrator.
The decision of the arbitrator shall be limited to the subject matter
of the grievance and shall be restricted solely to the interpretation of the contract in the areas
the alleged breach occurred. The arbitrator shall not modify, add to, or delete from the
of the Agreement.
. . .
ARTICLE 8 - SENIORITY, JOB POSTING
. . .
Section 5. Posting. All new or
vacated positions which the County has determined to fill shall
be posted by the responsible Department Head or Supervisor on the main bulletin board for
bargaining group involved for three (3) working days stating the job that is to be filled, on
it is to be filled, and the rate of pay. The following factors shall be considered in filling new
vacated positions: (1) qualifications and ability to perform the work; and (2) seniority.
interviewing via the posting procedure shall be at the County's expense and without loss of
The grievance states the relevant circumstances thus:
Signed a job posting for a half time position Crime Victim Office.
Personnel Office notified that
I was not eligible to sign the posting while I am employed for the county presently in a one
The grievance states the "Relief Sought" thus:
Consideration for the one half time position in the Crime Victim
Office as Department Head
states hours currently working would not be in conflict.
Margaret M. McCloskey, the County Personnel Director, responded to the grievance in
a letter dated
August 25, 1997, which states:
I received your grievance on being denied the ability to post for a
second part-time position with
the County. You state that there would be no conflict in hours of work.
A conflict in regularly scheduled hours of work is not the
determining factor. Because of
restrictions and issues involved in enforcing the Fair Labor Standards Act, the County has a
long-standing policy that no employee may hold two separate positions within County
is a broad policy, covering all employees, and doesn't distinguish between bargaining units
Further, there has been no violation of the
collective bargaining agreement.
. . .
The positions set forth in this exchange set the themes elaborated on at hearing.
The hearing established that the factual background to the grievance is undisputed.
Grievant is currently employed on a one-half time basis as the County's Child Care
has been a County employe for roughly twenty-one years, and has served in her present
roughly seventeen years. For the past eleven years, she has worked on a one-half time basis.
The Grievant would like to return to full-time status and signed a posting for a
position in the
Crime Victim Witness Program. The posting stated the vacancy was a one-half time
Grievant contacted the department head to determine if the posted vacancy would conflict
duties as Child Care Coordinator. She learned that the posted position was for afternoon
would not conflict with her current position, which consists of morning hours. Thus, she
Sometime after signing the posting, Shirley Ramharter, the County's Personnel
informed the Grievant that she could not be considered for the posted vacancy because
Personnel Policy forbids employes from holding more than one County position. This policy
referred to below as the Policy. The Grievant responded that she would like to fill both
and wished to be considered for the vacant position. The County declined to interview her
consider her as an eligible applicant for the posted position.
Delores Gund, the Union's Steward, testified that she was unaware of the Policy until
processing of this grievance.
Jocelyn Brost has served on the County Board since April of 1984. She has been a
of the Personnel Committee since April of 1986, and has chaired that Committee since 1990.
noted that in late June of 1993, the Personnel Committee considered whether
to permit employes to hold more than one position with the County. The Committee's
may have been prompted by a grievance, but in any event resulted in discussion summarized
Committee minutes thus:
3.3 Employees Holding More Than One Part Time
McCloskey stated she had received requests
from employees to hold more than one part-time
position within the County. She said she felt it was a bad idea, but had asked Ramharter to
with other counties regarding their policies. McCloskey stated after reviewing the issue she
recommending that Chippewa County not allow an employee to hold more than one position,
it could involve problems with overtime and create problems as to whether an employee was
or non-exempt from the Fair Labor Standards Act. Also there might be cross-union
dues and posting rights. McCloskey stated she was requesting approval to prepare a written
for approval by the Personnel Committee. . . . Motion carried.
Brost testified that although the request that employes be permitted to hold more than
had superficial appeal, she concluded that the problems it might bring outweighed any benefit
could be expected to flow from granting the request. The problems she feared include
overtime, other benefits and scheduling work and paid leave. The motion approved by the
Committee was proposed as a County Ordinance, but on the advice of the Corporation
Committee pulled its request prior to a vote by the Board. The Corporation Counsel advised
Personnel Committee that its approval of the motion was sufficient to create personnel
that there was no reason to add such policies to County Ordinances.
The parties also adduced testimony concerning the implementation of the Policy. In
of 1994, the County hired Kris Peterson-Anderson as a Deputy Register in Probate on a
basis. In January of 1996, the County created one and one-half full-time equivalent Judicial
positions. The County awarded Peterson-Anderson the one-half time position for 1996. In
of 1997, Peterson-Anderson became a full-time Judicial Assistant. Gund testified that for
six months in 1990, the County employed Margaret Cameron on a one-half time basis as a
Service Aide and, simultaneously, on a one-half time basis as an Economic Support Worker.
undisputed that in February of 1994, the County's Law Enforcement Committee voted to
a proposal to create one full-time secretarial position split between the Sheriff's Department
Department of Emergency Government.
Further facts will be set forth in the
THE UNION'S POSITION
The Union argues that arbitral precedent establishes that "(i)n both discipline and
cases, management gathers the evidence, makes the decision, and is in the best position to
decision," thus "placing the burden of proof on (the) employer in posting cases." To justify
the position from outside the bargaining unit, it follows that the County must establish that it
considered the factors set forth in Article 8, Section 5.
Article 8, Section 5 clearly and unambiguously establishes that the "only factors the
is to consider when filling a unit position are qualifications and ability to perform the work
seniority." By denying the Grievant the position in the Crime Victim Office without
factors noted above, the County violated the labor agreement.
That the Grievant holds a one-half time position in Child Care has no bearing on this
conclusion. The Grievant had confirmed with the head of the Crime Victim Office that the
position's hours would not conflict with her existing hours. The absence of County rebuttal
point must, the Union contends, be considered significant. Beyond this, "(t)he County has
(the Grievant) was qualified and able to perform the Crime Victim job." This establishes a
Nor can the County persuasively contend that its unilaterally adopted Policy can
the labor agreement. The Policy "was never negotiated with the Union" and the labor
which was negotiated with the Union, precludes consideration of points other than "seniority
qualifications." Whatever the reasons for the Policy may be, they "are irrelevant to
existence of a contract violation." The contract "does not cease to apply merely because the
(employer) claims a good reason for violating it."
Even if the basis for the Policy could be considered relevant, "the County's
justifications . .
. are unpersuasive." That employes could hold jobs in two units or could hold both exempt
and non-exempt positions under the Fair Labor Standards Act "are irrelevant to this
members of the bargaining unit have no right to post for jobs outside the unit, and all unit
hourly." Sustaining the grievance would not, the Union contends, compel the County to
conflicts in hours or other conflicts when filling positions. Beyond this, the evidence
the County "has not applied its policy consistently."
The Union concludes that its grievance should be sustained, the Grievant should be
the posted position, and should be made whole for any lost wages or benefits.
THE COUNTY'S POSITION
The County notes that the Grievant has been a Child Care Coordinator in the Human
Department for seventeen of her twenty-one years of employment, and voluntarily went
from full-time to one-half time status eleven years ago. Because she wished to return
status, the Grievant signed a posting for a one-half time position in the Crime Victim
Program. Placing her in that position would, however, contravene its clear and proper
Brost's testimony establishes that the Personnel Committee carefully considered the
The County summarizes those considerations thus:
(Brost) said the committee examined issues such as the positions
being union/non-union, Exempt
or Nonexempt (under the Fair Labor Standards Act), problems with computing overtime
departments, and computing benefit levels. She said that the federal government looks at
of employment with a given employer: if both positions were Nonexempt, then additional
either department would have to be paid time-and-a-half; but what if one position were
and the other Exempt? She said a given department's scheduling might have to be changed
time: how would this be handled when more than one department was involved? She said
concerns about the possibility of one position's being under one union contract, while the
position was under another union's.
Against this background, the Personnel Committee concluded that however much it
might wish to
allow employes to hold more than one position, "the great potential for difficulties with that
allowance far outweighed the benefits to be achieved from it." That the County Board did
the Policy as an Ordinance is irrelevant here, since the approval of the Personnel Committee
sufficient to "create personnel policy."
The County then contends that the Union has been unable to prove that the
the Policy has been inconsistent. None of the cases cited by the Union demonstrate anything
than that the purported inconsistencies involve positions not governed by the Policy.
The County concludes that the evidence establishes that the Personnel Committee
the best interests of the County in establishing the Policy, which "is a basic management
right of the
County . . . covered in Article II." Since the Policy "has been evenly and consistently
its adoption" it necessarily follows, according to the County, that "(t)here has been no
violation." The grievance must, therefore, be denied.
The issue is stipulated, but requires that certain prefatory points be addressed before
can be resolved. First, the stipulated issue seeks an interpretation of the collective
agreement. This point is significant since the parties' arguments touch on potentially
issues. Second, it should be stressed that the issue questions the application of the
Policy to the
Grievant's attempt to be placed in the one-half time position noted in the grievance in
addition to her
one-half time position as Child Care Coordinator. Thus, the interpretive issue is not whether
Policy is, standing alone, reasonable. Nor is the issue whether the Policy is enforceable
County employes generally. Rather, the issue is whether the Policy governs the facts posed
Because the stipulated issue focuses on the labor agreement, the interpretive issue is
the County, under Article 2, can assert the Policy to preclude the application of Article 8,
to unit employe requests to be placed in more than one part-time position. Even if the
either Article 2 or Article 8, Section 5 could be considered clear and unambiguous, their
cannot. Thus, it is arguable that the language of either or both provisions can be
recourse to interpretive aids.
The most persuasive guides to the interpretation of ambiguous language are past
bargaining history, since each focuses on the conduct of the parties whose intent is the source
the goal of contract interpretation. In this case, however, neither guide is available. There
evidence of bargaining history. Not coincidentally, there can be no meaningful use of past
Gund's testimony that the Union was unaware of the Policy until the processing of the
Against this background it is apparent that there can be no use of bargaining history.
It is no
less apparent that there can be no use of past practice. The binding force of past practice is
in the agreement implicit in the conduct of the bargaining parties. Since the Union was
the Policy, there can be no finding that its implementation constitutes a binding practice.
Thus, resolution of the stipulated issue must turn on the language of Article 2 and
Section 5. On these facts, the language cannot support the County's position. The Article 2
asserted by the County are broadly stated, and do not directly address the posting process.
Article 8, Section 5, can be considered clear and unambiguous, it clearly and unambiguously
to the posting process. Thus, the County contends that its general authority under Article 2
read to preclude application of a specific provision addressed to the filling of vacancies.
This contention is not reconcilable to the admonition of the first paragraph of Article
the County's "management rights" are "expressly modified by other provisions of the
There is no dispute that the one-half time position posted in the Crime Victim Office is a
vacated" position "which the County has determined to fill." Article 8, Section 5,
mandates that such a position "shall be posted." Beyond this, Article 8, Section 5 demands
The following factors shall be considered in filling new or vacated
positions: (1) qualifications
and ability to perform the work; and (2) seniority.
Since it is undisputed that the County never applied these factors to the Grievant,
Article 2 as the County asserts would read Article 8, Section 5 out of existence. Such a
is irreconcilable to the first paragraph of Article 2 and to Article 4, Section 5, Subsection 4,
The scope of this conclusion is best detailed by tying it more closely to the arguments
parties. The County's contention that the Policy is reasonable can be granted. The
are noted by Brost and are detailed in the Personnel Committee minutes are considerable
evaluated by Board members in good faith. The issue posed here is not, however, whether
County can deny a position to the Grievant because her possession of two positions might
conflict of hours or some other type of conflict of interest. Rather, the issue is whether the
occur without any application of the factors specified in Article 8, Section 5. To permit this
reads Article 8, Section 5 out of existence. As noted above, this violates the first paragraph
2, the final paragraph of Article 4 and Article 8, Section 5.
Whether the County has consistently applied the Policy is of limited significance to
conclusion. The evidence would indicate the enforcement has been consistent, with minor
As the County persuasively points out, its consideration of splitting a full-time position
departments has no bearing on the grievance. The facts surrounding Cameron's position are
at best, and difficult to hold against the County's implementation of its Policy. The
Peterson-Anderson case is, however, applicable to the grievance in a limited sense. The
notes her assumption of additional hours was temporary in nature, designed to fill a gap until
permanent replacement could be found. The Grievant, unlike Peterson-Anderson, seeks a
position. This cannot, however, obscure that the County did not apply the Policy by rote to
Peterson-Anderson's situation. In any event, this minor deviation falls short of establishing
inconsistency in the County's implementation of its Policy.
The weakness in the County's position is not that the Policy has been administered
inconsistently, but that it has been administered without notice to or bargaining with the
Bargaining issues aside, it is unpersuasive to read a negotiated contractual provision out of
based on an unannounced policy directive.
The parties' stipulation of the issue and the provisions of the final paragraph of
preclude consideration of law outside of the contract as a basis to preclude application of
Section 5 to the grievance.
These considerations do not mean the County cannot consider potential conflicts
employe requests to hold more than one position. Rather, it means that such considerations
made on a case-by-case basis, in the application of the factors specified in the second
Article 8, Section 5. If, for example, the Grievant's duties as Child Coordinator precluded
certain hours in the Crime Victim Office, then the County could have considered that in
"qualifications and ability to perform the work." The conclusions stated above should
not be read to defeat the concerns underlying the Policy. Rather, those conclusions
establish only that
the Policy cannot be used to void the application of Article 8, Section 5. The concerns
the Policy must be reconciled with that provision on a case-by-case basis, and cannot be used
supersede the application of Article 8, Section 5.
In sum, the general authority of Article 2 cannot be read to preclude application of
terms of Article 8, Section 5 to the Grievant's request to fill the position posted in the Crime
Office. To do so would unpersuasively read a provision of general management right to
application of a provision specifically directed to the filling of posted vacancies. More
such an interpretation reads Article 8, Section 5 out of existence in violation of the first
of Article 2 and the final paragraph of Article 4.
It is now necessary to address the issue of remedy. At hearing, the Union sought to
Grievant considered for the position in the Crime Victim Office. In its brief, the Union
seeks to have
the Grievant placed in the position. The County's contract violation is rooted in its failure to
Article 8, Section 5 to the Grievant. The evidence does not establish who, if anyone, other
Grievant signed the posting, or how the Grievant compares to any other applicant under the
noted at Article 8, Section 5. Standing alone, this uncertainty precludes awarding the
position to the
Grievant at this time. Beyond this, awarding the position to the Grievant ignores that the
of Article 8, Section 5 have yet to be applied to her. The factors of the second sentence are
applied by "the County" not by an arbitrator. Accordingly, the Award entered below
County to apply the factors specified in Article 8, Section 5, to the applicants for the
including the Grievant. If the application of Article 8, Section 5 means the Grievant should
the position, the Award requires that she be made whole. Because of the uncertainty implicit
Award, I have retained jurisdiction to resolve problems traceable to the implementation of
The County does violate the collective bargaining agreement by denying unit
ability to hold more than one position with the County when it makes the denial without
factors noted in Article 8, Section 5.
As the remedy appropriate to its violation of Article 8, Section 5, the County shall
the applicants for the posted one-half time position in the Crime Victim Office which is the
of this grievance. In its reconsideration, the County shall apply the factors noted at Article
5 to the applicants who signed the posting, including the Grievant. If the application of those
establishes that the Grievant should be, under the terms of Article 8, Section 5, the
applicant, then the County shall offer the position to the Grievant. If the Grievant accepts
position and if she complies with all relevant contractual requirements, then the County shall
her whole for the wages and benefits she would have earned but for its violation of Article 8,
For the sole purpose of resolving any dispute regarding the implementation of the
noted above, I will retain jurisdiction over the grievance for a period of not less than
from the date of issuance of this Award.
Dated at Madison, Wisconsin, this 8th day of July, 1998.
Richard B. McLaughlin, Arbitrator