BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 742, DISTRICT COUNCIL 48, AFSCME,
CITY OF CUDAHY
Local 742, District Council 48, AFSCME, AFL-CIO, herein the Union, requested
Wisconsin Employment Relations Commission to designate a member of its staff as an
hear and to decide a dispute between the parties. The City of Cudahy, herein the City,
said request and the undersigned was designated as the arbitrator. Hearing was held in
Wisconsin, on February 26, 1998. Post-hearing briefs were exchanged on September 11,
To maximize the ability of the parties we serve to utilize the Internet 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 City raised the following issues:
Whether the grievance is time barred under Article 10,
Grievance Procedure, since the
grievant was aware of the underlying allegations which are the subject of the grievance far in
of the thirty (30) day time limitation?
Whether the doctrine of collateral estoppel
applies to this case because of a prior settlement
agreement between the parties?
In addition, the parties stipulated to the following issues:
Is the City violating Articles 12 and 30 of the contract by
denying the grievant five weeks of
vacation pay and twenty-five dollars per month longevity pay? If so, what is the remedy?
The grievant, Clayton Lynde, began working for the City on June 24, 1968. On
1996, Lynde voluntarily quit his employment with the City to work as the Athletic Director
Cudahy School District. At that time he did not ask for a leave of absence and he cashed out
monies and benefits which were owed to him by the City. On November 25, 1996, Lynde
Frank Miller, the City's Water Utility Superintendent, regarding his possible return to work
City. On December 13, 1996, Lynde met with Miller and Mike Clark, the City's General
of Public Works at the Water Utility, to further discuss his possible return to work for the
February 25, 1997, 1/ Lynde returned to work for the City as a new hire. As a new hire
placed on the first step of the wage schedule for his position and was placed on a six-month
period. Also on February 25, Lynde sent a letter to the Chair of the City's Personnel
requesting a meeting to discuss his rate of pay under Article 11, Section 2 (a) of the contract.
Personnel Committee did meet with Lynde and listened to his request to be moved to the top
step of the wage schedule in the contract. On March 4, the City agreed to place Lynde
at the top step
of the wage schedule. On March 21, the following settlement agreement was drafted by the
1/ Unless otherwise
specified, all other dates herein refer to 1997.
. . .
WHEREAS, Clayton Lynde (hereinafter
"Lynde") has been a former employee of the City
of Cudahy (hereinafter "City") for 28+ years.
WHEREAS, Lynde left the employment of
the City to work for another public sector
employer, the School District of Cudahy, for approximately four months; and
WHEREAS, Lynde reapplied and was
rehired for his position in the City. There were five
candidates who applied. Lynde was the only one to meet specific qualifications. Lynde was
interviewed by the Civil Service Commission and hired.
NOW, THEREFORE, BE IT RESOLVED
1. The City Council agrees that pursuant
to Article XI Rates of Pay, Section 2(a) of the
contract, Lynde shall be placed at the top step, Step 5, with regard to wages only under
2. This action shall be done on a
non-precedent basis and may not be cited to in any future
proceeding. This matter shall be kept confidential to the extent allowed by law.
3. The Union and Lynde agree that they
will not file any type of lawsuit, prohibited practice,
grievance or complaint regarding this matter.
. . .
Pursuant to the settlement agreement, Lynde was placed at the top wage rate for his
On April 1, Lynde wrote to the City's Personnel Committee and requested a meeting to
employment package. Lynde met with the Personnel Committee and requested that his
longevity benefits be based on his total employment with the City, rather than on his rehire
February 25. On April 21, the Personnel Committee denied Lynde's request. On April 28,
filed an oral grievance with Miller regarding the City's denial of his request for his vacation
longevity benefits to be based on the total of his years of service with the City. On May 8,
filed a written grievance for the same reason as his oral grievance was filed.
On August 27, Miller sent a letter to Lynde advising him that he had satisfactorily
his six-month probation period.
POSITION OF THE UNION
The grievance was filed on a timely basis. A grievance would have been premature
before the City actually denied the vacation and longevity pay request. Said denial occurred
22 and the grievance was filed on April 28.
The contract defines seniority as an employe's length of continuous service and
seniority in various portions of the contract. With regard to the accumulation of vacation
contract refers to years of service, not seniority or years of continuous service. With regard
determination of longevity pay, the contract says only that it is to be paid after a certain
years, but does not say years of continuous service. The City has previously recognized that
accrues on the basis of total years of service as opposed to years of continuous service. Such
interpretation was provided by a former City Attorney. If the City argues that the terms
service" and "years of continuous service" have different meanings based on whether or not
employe is covered by the contract, then the City violates Article 1, Section 3 of the
In rehiring Lynde, there was no intention by the City to deny him any benefits due
terms of the contract. The side letter agreement between the parties did not address the
vacation and longevity pay, but rather, it only addressed the issue of pay. The City is
contract by denying five weeks of vacation and twenty-five dollars per month to Lynde.
POSITION OF THE CITY
The grievance is untimely. The date causing the grievance is arguably the date of
employment, February 25, but it definitely is no later than March 20, when the settlement
was signed. Using either date, Lynde failed to meet the thirty-day time limit contained in the
The doctrine of collateral estoppel prohibits Lynde from grieving the City's decision
settlement agreement, which memorialized his wages and benefits as a new employe under
contract. There is no evidence that Lynde was unaware of his longevity and vacation
either at the time he applied for reemployment or at the time he made his request to the City
higher wage. Lynde admitted waiting to make the second request for benefits until after the
agreement on his wage increase was finalized.
The City had no contractual obligation to treat Lynde any different than other new
treated. Lynde was informed prior to his rehire that he would be starting as a new hire and
higher wage rate and additional benefits could only be requested through the Personnel
Article VII defines seniority as an employe's length of continuous service. The
must find that Lynde's entitlement to benefits is based on continuous service in order to find
compatibility between Article VII and Articles XII and XXX. Although the contract gives
Personnel Committee the authority to increase Lynde's wages, there is no language giving it
authority to increase vacation and longevity benefits.
The Union failed to establish the existence of a binding past practice. It claimed that
employes who left their employment with the City and subsequently returned were granted
benefits. One of those employes was Greg Loferski who held a bargaining unit position
when he left
the City's employ and who returned to a non-bargaining unit position. Thus, the terms and
of his reemployment were governed by an ordinance, rather than a contract with the Union.
other employe, John Tomczak, was rehired in a different bargaining unit and under a
contract than applies to Lynde. The circumstances involving each of these employes are
cannot be construed as a past practice which controls this grievance.
The grievance should be denied.
. . .
3. No Discrimination: The
City agrees that it will not discriminate in hiring of employees or
during their tenure of employment because of . . . Union activity. . . .
. . .
1. Definition: Seniority means
an employee's length of continuous service with employer since
his date of hire. . . .
. . .
ARTICLE X GRIEVANCE
. . .
5. Steps in Procedure:
Step 1: The employee,
or with his Union representative, shall orally explain his
grievance to his immediate supervisor no later than thirty (30) days from date of the cause of
grievance. After the oral grievance has been presented, the employee shall continue to
then assigned work task. The employee's immediate supervisor shall, within five (5)
orally inform the employee of his decision on the grievance presented to him.
Step 2: If the grievance is
not settled at the first step, the employee and/or his representative
will write up the grievance initiation form and present it to the department head within fifteen
days. the (sic) department head will further investigate the grievance and submit his decision
employee and his representative in this step in writing on the grievance disposition form
(10) working days after receiving written notification of the grievance.
. . .
ARTICLE XI RATES OF
. . .
Section 2 Movement in
(a) Unless otherwise authorized by the
Common Council of the City, an employee shall be
hired at the first step of the pay scale for such employee's classification. The employee shall
advanced to Step 2 after six months and shall advance one step every twelve (12) months
until the employee reaches the maximum pay rate.
. . .
ARTICLE XII VACATION
1. Schedule: The vacation plan
shall allow employees:
A. Two (2) weeks vacation after one (1)
year of service.
B. Three (3) weeks vacation after seven (7)
years of service.
C. Four (4) weeks vacation after fifteen
(15) years of service.
D. Five (5) weeks vacation after
twenty-three (23) years of service.
. . .
3. Seniority: Choice of vacation weeks shall be
made on the basis of bargaining unit seniority.
However, in the Water Utility the use of seniority shall be limited to selection of employee's
weeks vacation only, with a seniority rotation on the remaining time.
. . .
The City agrees to pay longevity pay to
employees as follows:
A. After five (5) years - $5.00 per month
B. After ten (10) years - $10.00 per month
C. After fifteen (15) years - $15.00 per
month longevity pay.
D. After twenty (20) years - $20.00 per month longevity pay.
E. After twenty-five (25) years - $25.00
per month longevity pay.
Longevity payments shall commence at the
end of the closest payroll period ending after the
anniversary date of hire.
. . .
The undersigned concludes that the grievance was timely filed. Although Lynde had
that he would be returning to work at the wage rate for a new hire, he knew that the contract
an employe to request being placed at a wage rate above the first step of the pay scale for the
employe's classification. Lynde was also told by Clark and Miller that his fringe benefits
the same as those received by any new hire and that any improvements in benefits would
have to be
granted by the Personnel Committee, which they did not believe would be likely to occur.
statement left open the possibility of improved benefits. Thus, it was reasonable for Lynde
to file a grievance over the improved benefits until his request for such had been denied by
Personnel Committee. He did file his grievance within 30 days following the denial.
The undersigned now examines the City's contention that the doctrine of collateral
prohibits Lynde from grieving the decision of the Personnel Committee and the subsequent
agreement. It is true that the City had no obligation to rehire Lynde. Further, the parties
into an agreement, whereby Lynde was placed at the top wage rate for his job classification,
than the entry level wage rate. But the subjects of fringe benefits, longevity pay and earned
time are not mentioned in said agreement. Neither is there any evidence to show that
benefits for Lynde were discussed while his request for a higher wage rate was being
Apparently, the City's position rests on the last sentence of the settlement agreement, which
term "this matter." However, the evidence fails to support such an interpretation. Lynde's
dated February 25, to the Personnel Committee requested that the Committee discuss his rate
under Article XI, Section 2(a) of the contract. Said provision authorizes the City Council to
an employe to a higher step of the pay scale for such employe's classification. The minutes
Personnel Committee meeting of March 4, state that the Committee voted to raise Lynde to
level as a Serviceman 2 and that the rate should go into effect if the labor negotiator found
problem with the action of the Council. The settlement agreement was then drafted. It was
after the settlement agreement was executed that Lynde filed his request, dated April 1, for
Personnel Committee to consider granting him the same longevity and vacation
benefit levels as he had been receiving at the time he left the City's employ in October
According to the minutes of the Personnel Committee meeting on April 21, the Committee
deny Lynde's request for restoration of his vacation and longevity benefits. It is concluded
settlement agreement dealing with Lynde's wage rate did not address Lynde's request for
of his vacation and longevity benefits, nor was it the intent of the parties to do so. Rather,
settlement agreement dealt solely with Lynde's request to be placed at a higher wage rate
rate for new employes. Since the instant grievances raise different issues than were covered
settlement agreement, the doctrine of collateral estoppel is not applicable to these grievances.
The City's interpretation of Article XII appears to be more logical than the Union's
interpretation. However, the Union asserts that the City has altered the meaning of the
language through its practice of administering said language. The Union presented two prior
in support of its position that the language in Article XII should be interpreted to mean total
employment with the City in those situations where an employe was employed by the City,
the City's employ and later returned to work for the City. Both of those cases occurred in
of 1993. The first case involved an individual named Greg Loferski, who worked for the
May 21, 1984 to October 22, 1987, in a position in the same bargaining unit as Lynde's
located. On January 16, 1990, Loferski was rehired into a non-represented position with the
In 1993, Loferski talked to the City Attorney about the calculation of his vacation time. The
Attorney concluded that the City's Ordinance fixing the salaries and fringe benefits for
employes in 1993 allowed three weeks of vacation after seven years of service and did not
the years of service must be continuous. The City Attorney concluded therefore that
entitled to use his prior employment with the City in calculating his vacation eligibility,
information was conveyed to the City's Payroll Department in a memo from the City Clerk
November 12, 1993.
The second case involved an individual named John Tomczak who worked for the
October 7, 1969 to September 15, 1978, in a position in a bargaining unit also represented
Union, but covered by a different contract than the contract covering Lynde's position.
returned to work for the City on May 5, 1981, in the same bargaining unit as when he
worked for the City. Loferski told Tomczak that he had received credit for his prior
calculating his vacation benefits. On November 17, 1993, the Payroll Department was
a memo from the City Clerk that, based on the City Attorney's prior conclusion concerning
Tomczak's vacation eligibility should be calculated in the same manner as Loferski's vacation
The undersigned is not persuaded that the Union has established the existence of a
practice which should control the instant dispute. The two examples occurred approximately
years ago and within the space of a few days. Neither of the examples involved the
interpretation of the contract covering the bargaining unit in which Lynde's position is
Although the language of the ordinance covering non-represented employes is virtually
the language of the contract relevant herein, one isolated example is insufficient to show
there is a
consistent past practice. The language in the contract covering Tomczak in 1993 was
it provided that the date of hire shall be the vacation anniversary date for all employes.
There is no
evidence to show that the City Attorney evaluated the language of the contract covering
which language is even less susceptible to an interpretation similar to the one in the Loferski
Thus, the Tomczak example should not have been found to be the same as the Loferski
is not helpful in the instant matter. Further, in reviewing the contract provision concerning
pay, it is noted that the longevity payments are to commence at the end of the closest payroll
ending after the anniversary date of hire. In Lynde's case, his date of hire is February 25,
There is no support in that language for the Union's interpretation that Lynde should get
a prior period of employment with the City. The undersigned is not convinced that the
intended vacation eligibility to be computed in a different manner than longevity is computed,
an employe who is rehired should be given credit for prior periods of employment for
The undersigned does not agree with the Union's assertion that the City is
against employes on the basis of their Union activity if it applies the relevant contract
such application results in a different level of benefit for an employe represented by the
is received by an unrepresented employe.
Based on the foregoing, the undersigned enters the following
That the grievances filed by Clayton Lynde were filed in a timely manner; that the
of collateral estoppel did not bar the grievances; that the City did not violate Articles XII and
of the contract by denying Lynde five weeks of vacation pay and twenty-five dollars per
longevity pay; and, that the grievances are denied and dismissed.
Dated at Madison, Wisconsin, this 4th day of December, 1998.
Douglas V. Knudson, Arbitrator