BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WAUPACA COUNTY HIGHWAY
EMPLOYEES, LOCAL 1756, AFSCME,
Waupaca County Highway Department Employees, Local 1756, AFSCME,
hereafter Union, and Waupaca County, hereafter County or Employer, are parties to a
bargaining agreement which provides for the final and binding arbitration of grievances
thereunder. The Union requested, and the Employer concurred, in the appointment of a
Employment Relations Commission staff arbitrator to hear and decide the instant dispute.
undersigned was so appointed. The hearing was conducted at Waupaca, Wisconsin, on
1998. The hearing was transcribed and the record was closed on June 8, 1998, upon receipt
of post-hearing written arguments.
The parties were unable to stipulate to a statement of the issue.
The Union frames the issue as follows:
Did the County violate the contract when it failed to
assign the Turnapault machine to its
primary operator, Bill Krueger, on August 21, 1996? If so, direct the County to abide by
agreement by assigning such work to the primary operator.
The Employer frames the issue as follows:
Did the County violate Sec. 8.03 of
the Collective Bargaining Agreement when it assigned
Bill Krueger to assist with the Dyna-Plane on August 21, 1996?
The Arbitrator adopts the Union's
statement of the issue.
Article II -- Management Rights
2.01 The Waupaca County Board of Supervisors,
through its duly elected Highway
Commissioner, possesses the sole right to operate the Highway Department and all
rights repose in it, except as otherwise specifically provided in this Agreement and applicable
These rights include, but are not limited to the following:
To direct all
operations of the Highway Department;
reasonable work rules and schedules of work;
To hire, promote, transfer,
schedule and assign employees within the Highway Department;
To suspend, demote, transfer,
discharge and take other disciplinary action against employees
for just cause;
layoff employees because of lack of work or other legitimate reason;
maintain the efficiency of the Highway Department operations;
To take reasonable action, if
necessary, to comply with State or Federal law;
To introduce new or improved
methods or facilities or to change existing methods or
To determine the kinds and
amounts of services to be performed as pertains to the Highway
Department operations and the number and kinds of classifications to perform such services;
To contract out for goods and
services, provided however, that no employee shall be on layoff
or laid off or suffer a reduction of hours of work as a result of such subcontracting;
To take whatever action is
necessary to carry out the functions of the Highway Department
in situations of emergency.
2.02 Any dispute with respect to the reasonableness of
the application of these management
rights by the Employer shall be appealable by the Union or an employee through the
arbitration procedure contained herein.
Article IV B Cooperation
4.01 The Employer and the Union agree that they will cooperate in every way
possible to promote harmony and efficiency among all employees. (The Employer agrees to
maintain certain conditions of work, primarily related to wages, hours and conditions of
employment not specifically referred to in this Agreement in accord with previous practice.)
. . .
Article VIII B Job Posting & Seniority
8.03 All vacancies shall be posted on the bulletin board. Such notice shall be
for at least ten (10) calendar days, and shall state the prerequisites and wage rate for the job.
Such prerequisites shall be consistent with the requirements of the job classification.
Employees securing a posting will be assigned vacated equipment if maintained in service by
It is understood by the parties that the employee who has signed the posting for
available equipment within the respective job classification shall be considered the primary
operator; however, the County may reassign such equipment to other worksites to meet
specific workload needs.
. . .
8.06 The Employer may make an immediate temporary assignment to fill any
until the vacancy has been filled pursuant to the procedure herein outlined.
. . .
Article XIII B Job Classification & Wage Schedule
. . .
13.03 The number of employees to be assigned to any job classification and the
classification needed to operate the Waupaca County Highway Department shall be
determined by the Employer and shall constitute the Table of Organization.
. . .
Article XXVII B Entire Memorandum of Agreement
27.01 This Agreement constitutes the entire Agreement between the parties and no
verbal statement or practice shall supersede any of its provisions. Any amendment to this
agreement shall be effective only when placed in writing and signed by the Employer (or
designee) and the Union (or its designee).
To the extent that the provisions of this Agreement are in conflict with the existing
ordinances, resolutions or rules, the Agreement controls.
In 1991, the parties were involved in litigation on a petition for declaratory ruling
been filed by the County. At the time of this litigation, Sec. 8.03 of the parties' collective
agreement stated as follows:
8.03 All vacancies shall be posted on the bulletin board. Such notice shall be posted
for at least ten (10) calendar days, and shall state the prerequisites, (Equipment number) and
wage rate for the job. Such prerequisites shall be consistent with the requirements of the job
classification. It is understood by the parties that the employee who has signed the posting
with an equipment number shall be considered the primary operator; however, the County
may reassign such equipment to other worksites to meet specific workload needs.
During this litigation, the County and the Union entered into a settlement agreement.
As a part of
this settlement agreement, the parties agreed to replace the existing Sec. 8.03 with the
In 1992, William Krueger, hereafter Grievant, posted for and received, the position
Turnapault operator. The Grievant continues to hold this position. On August 20, 1996, the
Grievant's supervisor, Dennis Nieland, told the Grievant to report to Waupaca the following
to go with fellow County employe Kevin Kreiser to the City of Menasha and assist Kreiser in
operation of the Dyna-Plane.
On August 21, 1996, the Grievant and Kreiser went to Menasha and operated the
on a job that the County was performing for Winnebago County. The Grievant and Kreiser
on this job for several days.
When the Grievant subsequently learned that fellow County employe Todd Niemuth
operated the Turnapault on August 21, 1996 for a period of six hours, he filed a grievance.
grievance states that the County erred when it "did not keep Bill in his assigned piece of
and put a lower classification operator in his assigned piece of equipment." The grievance
the following corrective action: "If equipment is in operation - the person assigned should be
exclusive operator and not anyone from a lower classification." The Grievance was denied
steps and, thereafter, submitted to arbitration.
POSITIONS OF THE
Article VIII, Job Posting and Seniority, of the collective bargaining
agreement recognizes that
the employe who has signed the posting for available equipment within the respective job
classification is to be considered the primary operator. The right to reassign "equipment" to
work sites is not synonymous with a right to reassign "primary operators" to a secondary
The need to reassign an operator to the Dyna-Plane was not caused by an absence
vacancy or a vacation, sickness, injury or other acute leave of absence contemplated by the
during the 1991 declaratory ruling proceedings. It is improper to imply that the need to
Turnapault on August 21, 1996 was unforeseen by the County.
If the County determines that work is available within an employe's primary posted
assignment, then the employe has a contractual right to perform this work. A reassignment
primary operator is only acceptable where there is no work available in the employe's
assignment or when other factors, such as weather or management determination, dictate a
of work in the employe's primary assignment. This is consistent with a longstanding past
which has not been modified by the prior litigation.
If the County determines that it is necessary to assign an employe to a piece of
does not have a primary operator, the assignment must be made in a manner that is
the labor agreement. The County must assign an employe from the pool of employes that do
work in their primary posted assignment. This principle is affirmed in the County's job
which recognize reassignment "in the absence of the normally assigned operator."
The County exercised its Sec. 13.03 rights when it determined that it needed one
Dyna-Plane operator and one posted Turnapault operator. The assignment in dispute is
the more specific language found in Article VIII.
The Grievant should have been allowed to remain in his primary posted assignment.
the least senior qualified and available operator, could have been assigned to the Dyna-Plane.
grievance should be sustained and the remedy requested by the Union granted.
Section 2.01, Management Rights, expressly reserves to the County the
right to make the
assignment decision which was made in this case. This management right was exercised in
reasonable manner and for legitimate business purposes.
The term "primary" does not mean "exclusive." Section 8.03 of the collective
agreement clearly and unambiguously recognizes that the County has the right to assign
other than the primary operator.
The Grievant operated the Turnapault for most of the summer. Accordingly, he was
primary operator of the Turnapault.
Section 13.03 provides the County with the right to temporarily assign employes to
operations depending on their needs. The County also has the right to transfer employes as
Section 27.01 recognizes that the current language of the contract constitutes the
agreement. The Union should not gain in this grievance arbitration that which it did not
During the declaratory ruling proceedings, the Union expressed its belief that the
of Sec. 8.03 permitted the County to assign a primary operator to a different machine while
another employe operate the equipment normally assigned to the primary operator. Section
modified during the declaratory ruling proceedings and the Union may not argue that the
"longstanding practice" is different from that expressed, agreed upon and acted upon by
at the declaratory ruling proceedings. The claim that Sec. 8.03 prevents the County from
a piece of equipment to anyone other than the primary operator, without the agreement of the
operator, is inconsistent with the view expressed by Arbitrator Gallagher in a prior award.
The interpretation that the Union asks this Arbitrator to adopt leads to a harsh, absurd
nonsensical result. The Union misuses the concept of past practice as it relates to the
Sec. 8.03 and ignores the prior litigation returning to the County the right to make the type
assignments made in this case. The grievance is without merit and should be denied.
On August 21, 1996, the County assigned the Grievant to assist Kevin Kreiser with
operation of the Dyna-Plane and assigned fellow employe Todd Niemuth to operate the
The Union, contrary to the County, argues that this assignment of the Grievant violates the
collective bargaining agreement. It is undisputed that the Grievant did not lose any time or
a result of his August 21, 1996 assignment.
As Arbitrator Gallagher stated in her Award of June 24, 1993, "Sec. 8.06 applies
>temporary assignments' into vacancies, which were previously found necessary by the
during the period prior to the County's permanently filling the vacancy found." (Footnote
5) As the
Union argues, the Dyna-Plane assignment of August 21, 1996 is not a "temporary
within the meaning of Sec. 8.06. Contrary to the argument of the County, Sec. 8.06 is
the disposition of this grievance.
When the Grievant was assigned to operate the Dyna-Plane on August 21, 1996, the
remained in Classification VI. As the Union argues, this grievance does not raise an issue as
the number of employes to be assigned to a job classification or the job classifications needed
operate the Highway Department. Contrary to the argument of the County, Sec. 13.03 of
collective bargaining agreement is irrelevant to the disposition of this grievance.
As the County argues, Sec. 2.01 of the collective bargaining agreement provides the
with a management right to "assign employees within the Highway Department." Section
the parties' collective bargaining agreement requires the County to exercise this
in a reasonable manner.
On August 21, 1996, Dennis Nieland was the County's Patrol Superintendent.
retired on January 3, 1997, testified that he assigned the Grievant to the Dyna-Plane because
Grievant was the most experienced operator of that machine and Nieland wanted to do
possible to ensure a good work product.
Prior to assuming the position of Turnapault Operator, the Grievant had been the
operator of the Dyna-Plane for three years. On August 21, 1996, the Grievant was among a
of County employes qualified to operate the Dyna-Plane. The Dyna-Plane is operated
Nieland's decision to assign the Grievant to assist Kreiser in the operation of the
the Grievant was the most experienced operator is a reasonable exercise of the County's
management rights, unless, as the Union argues, this assignment conflicts with another
The Dyna-Plane requires a minimum of two employes to operate. Kreiser had posted
obtained the position of Dyna-Plane operator pursuant to Sec. 8.03 and, thus, was the
operator of the Dyna-Plane. It is not evident that any other employe had a Sec. 8.03 right to
the work of the second Dyna-Plane operator.
The Union argues that the County should have assigned the least senior of the
were qualified Dyna-Plane operators to assist Kreiser on August 21, 1996. The Union,
not cited, and the undersigned has not found, any contract language which dictates such a
is it evident that, in the past, either the least senior qualified operator has been assigned to
primary operator of the Dyna-Plane, or that the County has made such assignment from a
employes whose services were not needed in their primary posted position.
In summary, the County is not contractually required to assign an employe other than
Grievant as second operator of the Dyna-Plane. The undersigned turns to the issue of
not the Grievant had a contractual right to operate the Turnapault, rather than the
August 21, 1996.
As the Union argues, the Grievant obtained the position of Turnapault operator
Sec. 8.03 of the collective bargaining agreement. The first paragraph of Sec. 8.03
provides that "Employees securing a posting will be assigned vacated equipment if
service by the County." This sentence supports the Union's argument that, if the County
that it is necessary to operate the Turnapault, then the Grievant has the right to operate the
Turnapault. This sentence, however, does not stand alone.
The second paragraph of Sec. 8.03 provides that "[I]t is understood by the parties
employe who has signed the posting for available equipment within the respective job
shall be considered the primary operator; however, the County may reassign such equipment
worksites to meet specific workload needs." As the County argues, "primary" is not
with "exclusive." Thus, the plain language of Sec. 8.03 recognizes that the Grievant does
an absolute right to operate the Turnapault.
Prior to and after August 21, 1996, the Turnapault remained at the same worksite.
as the Turnapault was not reassigned to another worksite, the clause that provides the County
the right to reassign the equipment of the primary operator to other worksites is not
By inserting the clause that states the County may reassign the equipment of the
operator to other worksites to meet specific workload needs, the parties have made plain
understanding with respect to a particular factual situation. However, neither the language of
clause, nor its placement in Sec. 8.03, demonstrates that the parties have agreed that this is
situation in which the County may assign someone other than the primary operator to operate
Roger Hansen, who has been employed at the Highway Department for twenty-four
has been either a Union Steward or Local President for at least the past eleven years.
not recall any other occasion during his tenure as Union Steward, or Local President, in
primary operator was assigned other duties at the same time that another employe was
the primary operator's duties. Hansen recalls that, during his tenure with the County
Department, employes have operated the equipment for which the employe posted, unless the
equipment was not in use, or the employe was absent from work. Hansen's testimony is
with that of the Grievant and other Union witnesses. The Union's witnesses agree that,
equipment for which the employe posted is not operating, the County may assign the
perform other work.
Patrol Superintendent Nieland recalled that, after 1990, he had assigned primary
to other equipment. Nieland, however, did not clarify the conditions under which such
were made. Thus, Nieland's testimony does not contradict the testimony of the Union's
The evidence of "past practice" establishes that there are situations in which the
the County have agreed that the County need not assign the primary operator to operate the
equipment for which the primary operator posted. However, neither the evidence of past
nor the language of Sec. 8.03, establishes that the parties have agreed that these are the only
situations in which the County may assign another employe to operate the equipment for
primary operator posted.
As the County argues, during the litigation of the declaratory ruling petition, the
representative made various statements concerning the Union's interpretation of Sec. 8.03
existed at that time. Notwithstanding the County's argument to the contrary, the Union's
representative did not acknowledge that the County has the right to make the assignment that
subject of this dispute. However, the fact that the Union's representative did not
the County has the right to make the assignment in dispute does not mean that the collective
bargaining agreement does not provide the County with such a right.
Union Exhibit #5 indicates that, between the period of July 29, 1996 through
1996, the Grievant operated the Turnapault on sixteen of the seventeen days that the
operated, with the exception being August 21, 1996. Employer Exhibit #1 indicates that the
Turnapault was operated on seventy-six days in 1996. According to the Grievant, he is not
of any instance, other than August 21, 1996, in which he did not operate the Turnapault.
undersigned is satisfied that the Grievant is the primary operator of the Turnapault.
By assigning the Grievant to the Dyna-Plane, rather than to the Turnapault, on
1996, the County did not deny the Grievant his Sec. 8.03 right to be the primary operator of
Turnapault. The County's decision to assign the Grievant to the Dyna-Plane on August 21,
is a reasonable exercise of the County's Sec. 2.01 management rights.
Based upon the above and foregoing, and the record as a whole, the undersigned
The County did not violate the contract when it failed to assign the Turnapault
its primary operator, Bill Krueger, on August 21, 1996.
The grievance is denied and dismissed.
Dated at Madison, Wisconsin this 15th day of October, 1998.
A. Burns, Arbitrator