BEFORE THE ARBITRATOR
In the Matter of an Arbitration of a Dispute Between
LOCAL 60, AFSCME, AFL-CIO
CITY OF MADISON
Mr. Sam Froiland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P. O. Box
944, Waukesha, Wisconsin 53187-0944, appearing on behalf of the Union.
Mr. Michael G. Deiters, Labor Relations Manager, City of
Madison, City-County Building, Room
502, 210 Martin Luther King, Jr. Boulevard., Madison, Wisconsin 53710, appearing on
behalf of the
The Union and City named above are parties to a 1996-97 collective bargaining
that provides for final and binding arbitration of certain disputes. The parties jointly asked
Wisconsin Employment Relations Commission to appoint the undersigned arbitrator to hear
resolve a dispute involving working during inclement weather. A hearing was held on April
in Madison, Wisconsin, at which time the parties presented their evidence and arguments.
completed filing briefs by June 29, 1998.
The parties ask:
Did the City violate the labor agreement when it refused to
provide an alternate work site for
Richard Belz, Julia Lamp and James Johnson on January 16 and 17, 1997? If so, what is the
On January 16 and 17, 1997, the temperatures in Madison dipped into the sub-zero
going down to minus 11 at one point on the 17th, and the winds were
between six and 23 miles per
hour, reaching the higher speeds consistently on the 16th and creating severe wind chill
of many degrees below zero, up to minus 35 or 40.
On March 11, 1991, Mayor Paul Soglin signed an administrative procedure
2-44 (called APM 2-44 here) regarding inclement weather, following a major snow storm
some havoc in the City, with some employees staying home and some coming to work. The
The City of Madison will not close its facilities because of
inclement weather. As a result,
employees are expected to report to work on bad weather days.
If, in some unforeseen circumstance, a
particular work location cannot be accessed, employees
will be assigned an alternate worksite. Department/division heads are responsible for
If an employee cannot report to work at
his/her assigned start time, that employee will be given
the following alternatives:
1) Charge accrued vacation or
2) Make up the time lost, with permission
of the Department or division head. All time must be
made up within five working days or the end of the pay period, whichever is longer.
division heads are responsible for ensuring that the time is made up without incurring
the time cannot be made up without incurring overtime, this option will not be made
3) Charge the time lost as absence without
There will be no deviation from this
Administrative Procedure Memorandum.
The Grievants are water meter readers with the City's water utility. They use their
to work on their routes and are reimbursed for mileage plus a monthly stipend for the use of
cars. When this grievance arose in early 1997, the meter readers were using hand-held
instruments to read the meters. The three of them Julia Lamp, James Johnson and
read all of the meters in the City, both residential and business areas.
All three of them reported for work at the main office at 523 East Main Street on
1997, between 7:30 and 7:45 a.m. They asked their lead worker, Edward Green, if
there was any work inside in the office for them to do, due to the severe cold. Kenneth
Customer Service Supervisor, told Green that morning that if anyone did not want to work
that day, he or she could take paid or unpaid time off, using vacation leave or compensatory
Green told the meter readers that there was nothing available indoors for them to do.
was the first time that anyone asked Green for an alternative work assignment during his
as a lead worker before he retired in January of 1998. He did not have the authority to
off or vacation time without Key's approval.
Lamp left the office on January 16th shortly after 8:00 a.m. and
went to the area of Diamond
and Jade where she had to finish reading a couple of meters from the day before. Then she
her route on Meadowlark and read 42 meters between 10:00 a.m. and noon that day. She
to her car to warm up during her route and felt that her productivity would be low for the
On January 17th, Lamp worked a little longer and read 111 meters. The
City did not complain about
the lack of productivity during these days, although there have been concerns in the past
productivity, according to Lamp.
Lamp worked for four and one-half hours on January 16th and five
and one-half on the 17th.
She took three and one-quarter hours of vacation on the 16th and two and
one-quarter hours vacation
on the 17th. She tried to work but felt too uncomfortable, with her skin
stinging from the cold. She
was in pain, afraid that she would get frostbite or hypothermia, and could not stand the cold,
took parts of the days as vacation.
James Johnson had scheduled January 17th as a vacation day before
the cold weather problem
arose. He worked a full day on January 16th, and does not seek any
compensation as part of this
grievance. He recalled that Green told the meter readers on the 16th that
there was nothing available
for them to do inside, that they were to go out and work as long as they could stand it, and
could not stand the cold anymore, they should come in and use vacation time to cover the
of the day. Johnson had worked in colder weather before, and he felt that being able to
inclement weather was a prerequisite of the job. He left his car running most of the day to
him warmer and tried to come back to the car more often than he would have on his normal
Johnson was concerned about his car in such weather, and it eventually quit running.
Johnson recalled working on January 20, 1994, when the temperature dipped to
the wind chill was even worse "80 below" something he would never forget.
He did not ask for
an alternative work site that day.
Belz worked four and a half hours on January 16, 1997 and took three and
vacation, and took a full vacation day on January 17, 1997.
Employees fill out position descriptions which include physical requirements for their
Lamp wrote on her description, "Endurance for extremes of weather for sustained periods of
to ensure a large number of meters will be read for complete billing cycle." Belz wrote:
work under adverse weather conditions for extended periods and sustain a pace sufficient for
an acceptable number of meters per day." Johnson wrote: "General good
health, strong legs and feet, stamina." Most of the routes require walking a ways from
a vehicle, up
to six or eight blocks away from the vehicle at a time before returning to move the vehicle to
No one else in the water utility asked for alternative work sites on January 16 and 17,
There are about 125 employees in the water utility, and a majority of them work out in the
City offers some winter clothing to meter readers, such as a parka, and insulated coveralls.
Employees have the discretion on whether to wear the items provided by the City.
Nickolas Malacara is a maintenance worker for the water utility and is a
executive board member for Local 60, AFSCME. The issue of the water meter readers
inclement weather first came to his attention in March of 1996. Malacara had a meeting
and sent him a letter on March 27, 1996 indicating that he expected Key to submit a proposal
with foul weather assignments to the Safety Committee. There were other issues involving
readers which are not part of this grievance.
Key sent a memo back on April 3, 1996, stating that it was the policy for many years
the meter readers use their own judgment as to how much time they should spend outdoors in
The Water Utility Manager, David Denig-Chakroff, was involved in trying to resolve
present grievance. The issue was taken to the Safety Committee, which recommended that
like this should be worked out on a case-by-case basis between an employee and his or her
supervisor. That recommendation is the same policy as was in effect when this incident
Other City employees, such as parking meter readers, have the option to ask for
from inclement weather. Sergeant Susan Pirocanac, in charge of parking monitors for the
Department, testified that the practice in the Department was that when employees could not
around to check parking meters, they have been allowed to stay inside and do other work.
day of the hearing, it was raining off and on and the temperatures were in the 40's, with
making the day feel much colder. And on that day, a parking monitor named David Lopez
if he could use a Jeep instead of walking a route. Pirocanac said that it was
standard procedure to switch to riding instead of walking when there was ongoing rain.
four years as a supervisor, employees have always been given alternative work in bad
However, the employees who collect money from the meters do not appear to get any
from working in bad weather. Karen Stults is the parking revenue supervisor for the
Parking Utility, and she supervises about 35 employees who collect money from meters on
and the cashiers who collect money in the ramps. The employees collecting money from
the streets use a van and a collection cart. No one has asked her for an alternative work site
bad weather. Stults testified that it is part of the job to collect the money, no matter how
THE PARTIES' POSITIONS
The Union states that on January 16, 1997, the three Grievants approached their lead
supervisor, Green, and asked that they be given alternate work sites due to the inclement
While Green's recollection of this event is not clear, the Grievants' recollection is uniform
consistent. They recalled that there were told by Green that they should go out and work as
they could stand it, and when they couldn't stand it anymore, they should come in and just
vacation time to cover the balance of the day. While the City has denied that the request for
alternate work site was made by employees, it had not raised this matter as a factor through
step of the grievance process.
The Union points to Section 16.03 of the labor agreement as well as an administrative
regarding inclement weather for employees that states: "If, in some unforeseen
particular work location cannot be accessed, employees will be assigned an alternate
In March of 1996, Union steward Malacara met with Key to discuss issues relevant
meter reads at the Utility. Key clarified his understanding of the procedure for meter readers
in inclement weather, and indicated in his April 3, 1996 memo that the policy has been to let
their own good judgment as to how much time, if any, should be spent outdoors.
The Union asserts that there is no evidence whatsoever that the employees who
alternate work site abused their discretion in this area even minimally. The Grievants were
reading meters in residential areas with their own vehicles. The temperature on January
16th was in
the low single digits with a wind chill of 40 degrees below zero. It was even colder on
though the wind was not as much of a factor.
The Union notes that on the day of the hearing in this matter, the temperature in
in the 40's with a slight rain. Pirocanac testified that an employee had requested and been
alternate work site on that day, and that in the four years or more that she has been in charge
parking monitors, she has never denied an employee's request for an alternate work site.
The Union states that with the exception of the instant matter, the City and the Local
had no problem working out such matters on a case-by-case basis between employees and
immediate supervisors. Section 16.03 and APM 2-44 have provided some guidance, and the
have resolved such matters efficiently, with this exception. Key's testimony speaks well of
relationship between the parties over the years on this matter, and he admitted that he has
into a situation where an employee's request was unreasonable. This is in stark contrast to
belief that it would have a riot on its hands if the Union were to prevail in this case.
The Union asserts that the Grievants provided specific rationale to request alternate
for the days in question. Their jobs are unique among Water Utility positions, and expose
more direct and consistent weather elements than other positions. The fact that they do not
access to heated areas on residential meter routes leaves them more at risk during inclement
There is no evidence that the Grievants or any other Union members have abused or have
to abuse their discretion regarding requests for alternate work sites.
The Union asks that the Grievants be made whole and that the City be ordered to
desist from its unreasonable denial of requests for alternate work sites on inclement weather
The City argues that the operative words in the policy APM 2-44 are, "If, for some
unforeseen circumstances, a particular worksite cannot be accessed . . ." On January
accessed enough meters to record information on 86 of them. Lamp accessed at least 44
January 17th, Lamp was the only meter reader working and she accessed
enough meters to record
information on 111 meters. Since the work sites were accessed, the City asks, how did it
The Union has claimed that the City failed to honor requests from the meter readers
alternate work sites, but no meter reader ever made a request of Key for an alternative work
on the days in question. Green did not recall whether they made such a request and he did
the authority to grant it anyway. If someone asked him, he would have gone to Key, but
that no one approached him about an alternate work site. The City questions Lamp's
other respects, such as her recall about the type of recording instrument being used and the
her first meter reading.
The City argues that the Union's request to make Lamp and Belz whole for the time
used as vacation on January 16th and 17th is unjustified.
Johnson worked the entire day. Lamp and
Belz would end up being paid double time for the time that they were on vacation. And
what is the
City to pay Johnson for working all day? What should it pay all other personnel who
on those days? This is the situation that occurred in 1991 that caused the APM in question
created. The Union's position places the City in jeopardy of establishing a practice of letting
individual employees select under what conditions they will or will not work, in conflict with
management rights under the labor contract. If the Union were to prevail here, employees
have the discretion to decide whether or not it was too cold, too hot, too wet, too loud, too
or too windy to do their jobs.
The APM does not give employees discretion to determine if it is safe to work on
particular day. It states that employees are expected to report to work on bad weather days,
policy does not state what will or will not transpire once an employee reports for work. It
explains what happens if an employee cannot access her or his regular work site.
The City notes that the Union has questioned the consistent implementation of APM
Stults testified that no one ever asked for an alternative work site and people collect meter
no matter what the weather. Pirocanac testified that a walker had volunteered to answer
the Traffic Bureau, and a Union steward said that was not appropriate work for a parking
The City states that the overwhelming evidence shows that the work sites were
the City did not violate APM 2-44 or the contract. Lamp and Belz were granted vacation
at their request, and there is no need to repay them for this time.
In replying to the Union's brief, the City states that the Union has failed to
APM 2-44 gives employees the discretion to determine if it is safe to work on any particular
Also, Belz asked for a vacation day on January 17th to prepare for a
vacation starting the weekend,
and it would be preposterous to reimburse him for the time he took to prepare for a vacation
The parties agree that the policy called APM 2-44 is an important part of this case in
determining what rights employees have in inclement weather. The policy refers to
particular work location. It seems only common sense that the policy was probably written
majority of employees in mind, those who could not reach their offices or park due to heavy
etc. One can say that the Grievants' work location is the headquarters the Main
where they report for work or it is their routes where they go to read the meters,
actually perform their jobs. Or one could say that it is both locations, both the headquarters
as the routes. It makes no difference to the outcome in this case, because the Grievants were
to physically get to (or access, as they say here) their headquarters and their routes.
Not surprisingly, since it was a snow storm that resulted in the policy in the first
policy is concerned with whether or not employees can get to their work sites. APM 2-44
address what happens after they get there. Accordingly, any claim that employees should be
reimbursed under the policy APM 2-44 does not apply. The policy clearly states that
be assigned alternate work sites if their work locations cannot be accessed, and since the
could access their work locations, the policy does not give them the right to alternate work
The question is, then, whether there is an existing employee benefit to an alternate
under Section 16.03 of the contract. The collective bargaining agreement provides in Section
The Employer intends to continue other authorized existing
employee benefits not specifically
referred to or modified in this Agreement. It is agreed by the Union that bad or
that may develop among employees do not constitute "past practice" rights or employee
The existing employee
benefits referred to in this section are those
that are mandatory subjects of bargaining primarily
related to wages, hours and other conditions of employment.
The first question is whether the claimed benefit in this case (the right to an
site) is a mandatory subject of bargaining primarily related to wages, hours and other
employment. It certainly seems that the working in inclement weather falls within the phrase
conditions of employment." The City states in APM 2-44 that employees are expected to
work on bad weather days. This is a condition of employment for the meter readers, as
noted in his testimony. The job descriptions also show that working in adverse conditions is
condition of employment for their job of meter reader. Thus, it meets the first test of being
mandatory subject of bargaining related to other conditions of employment.
The next question is whether there is an existing employee benefit under Section
this case, the question is whether there is an existing benefit of being given an alternate work
when requested due to inclement weather conditions. To find an existing benefit, the past
of the City would be helpful but for the fact that the past practice is so mixed that
one cannot say
there is an existing benefit of being given an alternate work site during inclement weather.
cases, arrangements have been made, such as allowing employees who walk to ride to
jobs. That happened on the day of the hearing, when the weather was rainy and cold but
zero, and a parking monitor was allowed to use a Jeep instead of walk his route. However,
employees have to continue to go out in the bad weather, such as employees who collect
Without a clear past practice, there is no existing employee benefit of being given an
work site when requested due to inclement weather conditions. It is always admirable when
employer is able to arrange for better and safer working conditions, and it improves
employee-employer relationships when these matters are resolved to their mutual satisfaction.
It would behoove
the parties to continue to try to work out the problems caused by the extreme weather
Wisconsin. However, there is no contract violation and the grievance will be denied and
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin, this 5th day of August, 1998.
Karen J. Mawhinney, Arbitrator