BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SUPERIOR CITY EMPLOYEES' UNION LOCAL
CITY OF SUPERIOR
Mr. James Mattson, Staff Representative, Wisconsin Council 40,
appearing on behalf of the Union.
Ms. Mary Lou Andresen, Human Resources Director, City of
Superior, appearing on behalf of
Superior City Employees' Union Local #235, AFSCME, AFL-CIO, hereinafter
to as the Union, and City of Superior, hereinafter referred to as the City, are parties to a
bargaining agreement which provides for the final and binding arbitration of disputes arising
thereunder. The Union made a request, with the concurrence of the City, that the Wisconsin
Employment Relations Commission designate a member of its staff to act as an arbitrator to
and decide a grievance over the meaning and application of the terms of the agreement. The
undersigned was so designated. Hearing was held in Superior, Wisconsin, on
August 27, 1998.
The hearing was not transcribed and the parties submitted post-hearing briefs which were
exchanged on October 22, 1998. The parties reserved the right to file reply briefs and
the undersigned on November 2, 1998, that neither would file a reply brief and the record
The basic facts underlying the grievance are not in dispute. The grievant, Connie
was hired as a part-time employe in the City's Police Department on August 12, 1991.
June 25, 1993, the grievant was promoted to a full-time position. In January,
1998, the grievant found out that her vacation accrual was two weeks per year based
June 25, 1993 start of full-time status. The grievant believed she was entitled to
accrue three (3)
weeks of vacation based on her August 12, 1991 hiring date. The grievant filed a
claiming she was entitled to an additional week of vacation. The grievance was denied and
appealed to the instant arbitration.
The parties were unable to agree on a statement of the issue.
The Union states the issue as follows:
Did the Employer violate the terms of the collective bargaining agreement
when the City denied the grievant one additional week of vacation?
And if so, the appropriate remedy is for the Employer to award the grievant
one additional week of vacation as per the terms of the collective bargaining
The City states the issue as follows:
Did the City violate Article 7.03 B) 3) when it denied Connie Billings an
additional week of vacation?
The undersigned frames the issue as follows:
Did the City violate the parties' collective bargaining agreement,
specifically Section 7.03 B) 3), when it denied the grievant an additional week
vacation in 1998?
If so, what is the appropriate remedy?
PERTINENT CONTRACTUAL PROVISIONS
. . .
7.03 Effect of Employee Status Upon Seniority:
B) Part-time Employee:
. . .
3) A part time employee promoted to a full-time position will maintain his\her
part-time hire date for the purposes of vacation and longevity calculation only.
Seniority for bumping or promotion rights will be determined from the date of full-time
. . .
The Union contends that the language of the contract is clear and unambiguous and
specifies the accrual of vacation for employes. It argues that had the parties intended to
employe under the old accrual schedule, they would have said so, but there is no such
"grandfathering" language in the current contract. It points out that Section 7.01
seniority accrual for employes hired before and after January 1, 1986. It submits that
there is no
reference in Section 7.03 B) 3) for treating employes differently as is
found in Section 7.01.
Citing Elkouri & Elkouri, How Arbitration Works (5th
Ed.), the Union asserts that where language
is clear and unambiguous, it will not be given a meaning other than that expressed.
The Union claims that the clear language of the contract reflects the intent of the
It observes that there was no discussion in negotiations as to a two-tier method of handling
part-time employes promoted to full time before January 1, 1997, as to vacation
accrual. It notes that
the parties eliminated old language which the City relies on but no longer has any relevancy.
disputes the City's contention that removal of the language was merely "housekeeping." It
that the intent was the fair and equal treatment of part-time employes and securing their
seniority date for vacation accrual was an important aspect of the Union's objective. The
according to the Union, is the language which
guarantees part-timers' rights. It states that the City seeks to reinsert language deleted
prior contract but the contract prohibits the arbitrator from adding or deleting from the
provisions of the agreement.
The Union concludes that current language of the contract controls and the grievant is
entitled to three weeks of vacation accrual, not two. It requests that the grievance be
and the grievant made whole with three weeks of accrued vacation.
The City contends that the parties negotiated a provision in the 1994-1996 agreement
changes the vacation accrual for individuals who were promoted from part-time to full-time
ratification of the agreement. The City took the position in negotiations that it would not
the provision retroactively and recalculate vacation accruals for employes in full-time
at the time of ratification. It notes that the grievant was in a full-time position when the
was ratified and there was no recalculation for her or any other full-time employe.
The City observes that the contract was modified in the 1997-1998 contract by
the reference to "after ratification" because the provision would apply to promotions from
part-time to full-time after January 1, 1997, or during the term of the contract. It
argues that there was
no intent to restrict the provision from January 1, 1997, until ratification and so the
ratification was removed, so any promotion after January 1, 1997, would change the
accrual date. It takes the position that because the grievant was promoted prior to the
of the prior agreement and not during the term of the current agreement, she was not eligible
use her part-time date of hire for vacation accrual. It observes that another employe
same consideration for the prior agreement and was denied the request. The City
that a part-time employe could be at a higher accrual rate than the grievant as a full-time
and although the Union has argued that this is not fair, that is what the parties negotiated.
The City argues that arbitration is not designed to supplant negotiations but is
consider if there has been a contract violation or misapplication and not to provide a benefit
the intent of the negotiations had a clear and different meaning. The City maintains that its
evidence of negotiating history supports its position and whether someone is or is not
or there is some unfairness is not within the scope of arbitration. In conclusion, the City
that it acted properly in denying the grievant a change in date for vacation accrual and
the Union's claim will deny the City the ability and right to negotiate the terms and
employment of which vacation accrual is a part.
It is axiomatic in labor arbitration that where the language of an agreement is clear
unequivocal it must be given effect. As Arbitrator Jules Justin stated in Phelps Dodge
Products Corp., 16 LA 229 (1951), "Plain and unambiguous words are
undisputed facts . . . The
intent of the parties is to be found in the words which they, themselves, employed to express
intent. When the language used is clear and explicit, the arbitrator is constrained to give
to the thought expressed by the words used."
Section 7.03 B) 3) of the parties' agreement is clear and unambiguous
and defines seniority
for purposes of vacation and longevity calculation without reference to any time frame. This
language is unambiguous and therefore reference to negotiating history is inappropriate to
its plain meaning. The parties could have put in a limitation as they did in
Section 7.01 of this
same article. They could have said employes promoted from part-time to full-time during
term of this agreement or after January 1, 1995, will maintain their part-time hiring
purposes of vacation and longevity calculation. They did not do so. They could have and
other sections including Section 7.01 noted above and Section 7.05.
The undersigned is prohibited from adding to the provisions of the contract. Where
language is clear, it would be outside the arbitrator's authority to add a date or restriction
the parties could have done in negotiations but did not.
Section 7.03 B) 3) provides that a part-time employe promoted to a
full-time position will
maintain their part-time hire date for vacation calculation purposes. The grievant was a
employe who was promoted to a full-time position and thus she will maintain her part-time
seniority date for vacation accrual purposes. The refusal of the City to allow the proper
violated Section 7.03 B) 3) of the contract.
Based on the above and foregoing, the record as a whole and the arguments of
the undersigned issues the following
The City violated the terms of the parties' collective bargaining agreement when it
the grievant an additional week of vacation in 1998, and the City is directed to make the
whole by granting her an additional week of vacation as provided in
Section 7.03 B) 3) of the
Dated at Madison, Wisconsin, this 30th day of November, 1998.
Lionel L. Crowley /s/
Lionel L. Crowley, Arbitrator