BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LANGLADE COUNTY (HIGHWAY
LOCAL 36, AFSCME, AFL-CIO
Ruder, Ware & Michler, S.C., by Attorney Jeffrey T. Jones,
Suite 700, 500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on
behalf of the Employer.
Wisconsin Council 40, AFSCME, AFL-CIO, by Mr. David
Campshure, 1566 Lynwood Lane, Green Bay, Wisconsin 54311, appearing on
behalf of the Union.
Langlade County, hereinafter referred to as the Employer or the County, and Local
AFSCME, Wisconsin Council 40, AFL-CIO, hereinafter referred to as the Union, are parties
collective bargaining agreement which provides for final and binding arbitration of grievances
thereunder. The Union made a request, with the County concurring, that the Wisconsin
Relations Commission designate a Commissioner or member of its staff to hear and decide a
grievance filed by the Union. The undersigned was so designated. The hearing was
parties filed post-hearing briefs, and the record was closed on January 11, 1999.
This case was one of three involving the same parties, all heard on the same date
same arbitrator. (See Stipulations, below)
The parties do not agree as to the statement of the issue.
The Union asks: did the County violate the parties' collective bargaining agreement
assigned snowplowing duties using Range 1 and 2 equipment to non-union foremen on
and March 19, 1998, thereby denying bargaining unit employes the opportunity to work in a
classification on those dates? If so, what is the appropriate remedy?
The County inquires whether the County violated the terms of the collective
agreement by permitting foremen to operated graders and/or trucks on February 2 and March
1998, for snowplowing work rather than assigning bargaining unit employes to perform the
If so, what is the appropriate remedy?
I state the issue as follows: did the County violate the parties' collective bargaining
by assigning snowplowing duties involving the use of Range 1 and 2 equipment to foremen
February 22 and March 19, 1998 instead of assigning these responsibilities to bargaining unit
employes? If so, what is the appropriate remedy?
ARTICLE 4 MANAGEMENT
The County possesses the sole right to operate County
government and all management rights
repose in it, subject only to the provisions of this contract and applicable law. These rights
but are not limited to the follow:
To direct all operations of the County.
B. * * *
To hire, promote, transfer, schedule and
assign employees to positions within the County in
accordance with the terms of this Agreement;
D. * * *
F. To maintain efficiency of County
government operations entrusted to it.
G. * * *
H. * * *
* * *
J. * * *
K. To determine the methods, means and
personnel by which County operations are to
To take whatever reasonable action is
necessary to carry out the functions of the County in
situations of emergency;
ARTICLE 7 GRIEVANCE
* * *
* * *
3. Arbitration Procedures:
The arbitrator selected or appointed shall meet with the parties at
a mutually agreeable time to review the evidence and hear testimony relating to the
completion of this review and hearing, the arbitrator shall render a written decision to both
County and the Union, which shall be final and binding on both parties. The arbitrator shall
modify, add to or delete from the expressed terms of the Agreement.
* * *
ARTICLE 13 HOURS
OF WORK AND CLASSIFICATION
* * *
Any employee that performs work in a
higher classification shall receive the higher rate of pay for that
classification. If he/she is performing work in a lower classification, he/she shall receive no
than his/her regular classification rate.
* * *
All foremen shall refrain from performing work normally
by the employees and shall refrain from
operating equipment normally operated by the employees, except in cases of an emergency.
emergency situation shall be defined as a sudden, pressing necessity, requiring immediate
Snow removal shall automatically constitute an emergency situation where all qualified
either on the job or not immediately available. The foremen may operate the crusher during
periods when it is operating at the Neva Gravel Pit.
* * *
When the need arises for employees from
within a classification (example, grader operators), to be
called or assigned for overtime work, said employees shall be called or assigned on the
basis: first, full-time employees for their normally assigned section or beat; second, the most
full-time employee in the classification and so on down the line; last shall be the relief
operators (part-time) by seniority in said classification. Seniority within the classification for
the purposes of this
Article, shall mean the time within the classification and not the employment date with the
The parties stipulated as follows: Testimonies provided in the three hearings
August 27, 1998 (Case 79, No 56613,MA-10351; Case 80,No. 56614, MA 10352; and Case
56615, MA 10353) are included in the record of all three hearings.
This grievance questions the assignment of snowplowing duties involving the use of
1 and Range 2 equipment to Langlade Highway Department foremen on February 2 and
The position or job title of each employee of the Langlade County Highway
defined by the equipment that he regularly operates. Each employee receives either the rate
assigned to the particular equipment he regularly operates or the rate for the pay range
piece of equipment he may be temporarily operating, whichever is higher. Range 5 pay is the
pay category; Range 1 pay is the highest.
Snowplowing equipment covers three ranges. Employees plowing or removing snow
a grader or loader receive Range 1 pay. Employees plowing a state beat with a truck receive
2 pay. Plowing county and town routes earns Range 4 pay.
Prior to the 1997-98 snowplowing season, employees whose regular rate of pay was
Range 2 pay received Range 2 pay for plowing snow with a grader. Since Range 2 grader
pay is now
eliminated from the collective bargaining agreement between the parties, under the current
collective bargaining agreement between the parties, employees who plow snow with a
Range 1 pay.
On February 2, 1998, Highway Department employees were required to report to
to plow snow. Two bargaining unit employees were unable to report for medical reasons.
Strobel, a Range 1 Loader Operator normally plowed a regular beat with a grader. The
Rose, a Range 4 Truck Driver, normally plowed a regular beat with a truck.
To replace the two unavailable employees, the Highway Commissioner assigned Jim
(a Range 1 Grader Operator and bargaining unit member) to plow Strobel's regular beat with
grader, Michael Kennedy (a foreman) to plow Rose's regular beat with a truck, and Wence
(another foreman) to plow Jim Owen's regular beat with a truck. Owen's assignment was
his familiarity with that particular beat.
On March 19, 1998, Highway Department employees were again required to report
early to plow snow. Again, two bargaining unit employees were unavailable for work: Larry
(a Range 1 Grader Operator) was on vacation and Jan Mytas (a Range 1 Bulldozer Operator)
To replace the two unavailable employees, the Highway Commissioner assigned
Wence Husnick to plow Boyle's regular beat with a grader, Joe Kirsch (a Range 3 Truck
bargaining unit member) to plow Jan Mytas' regular beat with a grader, and Foreman
Kennedy to plow Kirsch's normal (regular) beat. Kennedy was believed to be familiar with
normal snowplow route.
Kirsch's assignment to what was normally Mytas' route resulted in Kirsch receiving a
pay rate than his classification would normally require.
POSITIONS OF THE PARTIES
The Union emphasizes that it is not arguing that the County is not
permitted to assign
snowplowing responsibilities to its foremen. Instead, the Union argues, the County violated
parties' labor agreement by the manner in which it assigned the foremen their respective
beats on February 2 and March 19, 1998.
The Union concedes that because all bargaining unit employees were either working
available for work, an emergency existed by contractual definition. Indeed, the Union points
because there were fewer employees than snow beats one supervisor had been assigned to
Town of Langlade roads for the entire snow season, in response to a request from the Town.
But, argues the Union, according to Article 21, Section A of the labor agreement,
can perform bargaining unit work normally done by bargaining unit employees only in cases
emergency. According to the Union, snow removal is deemed an emergency only when all
operators are either on the job or unavailable. Thus, says the Union, as to snowplowing all
bargaining unit employees must be assigned work before an emergency can be found to exist
foremen assigned to plow snow.
The Union next points to Article 21, Section C. That section, says the Union,
order in which work is to be assigned to bargaining unit employees (first, to full-timers
assigned to the beat, second by seniority to full-timers in the required classification, and last
operators by seniority in the classification).
Therefore, concludes the Union, reading Sections A and C of Article 21 in
overtime is involved the foremen should not be assigned a beat for snowplowing until all
operators have had the opportunity, by seniority, to fill snowplowing vacancies. According
Union, Section A does not supercede Section C, but must be read in conjunction with it.
hornbook authority, the Union contends that the two sections must be read in combination
other, not in isolation.
Moreover, the Union finds support for its position by the fact the County did not
the foremen into the various vacancies. The Union notes that on each of the days in
bargaining unit worker filled the vacancy caused by the absent worker, with a foreman filling
slot left by the worker thus reassigned. Under this circumstance the Union finds
County's argument that it filled the vacancies by the most simple, straightforward manner
According to the Union, the County should have followed the procedures outlined in Section
Article 21 and not assigned foremen until all qualified operators had been assigned a beat
By its actions the Union claims the County has denied employees the opportunity to
work in a higher classification and receive a higher rate of pay. Therefore, the Union
County has violated both Article 13 and Article 21, Section C by the manner in which it
snowplowing duties to its foremen on February 2 and March 19, 1998.
The County also cites hornbook authority in connection with an employer's
assign bargaining unit work to non-bargaining unit members. Application of these principles
demonstrates that the County did not violate any provisions of its collective bargaining
with the Union.
In fact, the County contends that its actions on February 2 and March 19, 1998 were
accord with the terms of Article 21, Section A. The County notes that the prohibition in that
against foremen doing bargaining unit work does not apply to cases of emergency. The
further notes that the section explicitly defines an emergency as snow removal where all
operators are either on the job or not immediately available.
According to the County, that was precisely the situations existing on February 2 and
Moreover, the County argues, its actions on the dates in question were consistent
practices of the parties. It cites the testimony of its Highway Commissioner and the Local
President as attesting to the existence of those practices. The County highlights the testimony
the Highway Commissioner and the Department's Road Superintendent. Both testified that it
a common practice for the County to assign foremen to operate graders and trucks for snow
The County additionally contends that the bargaining unit work performed by the
was temporary and de minimis in nature approximately eight hours
of work for the two foremen
each day. According to the County the monetary impact of that work on the bargaining unit
minimal an estimated total of $14.40 for the two days.
The County also argues that Union reliance on Article 13, Section D is misplaced.
section, argues the County, does not require that employees be assigned to
work in higher
job classifications merely because the work is available. Instead, under the terms of
Rights provisions contained in Article 4 of the labor contract, such assignments are
Finally, the County urges that its actions were done in good faith and for reasons of
The Union takes issue with the County's description of the work performed by the
as de minimis. According to the Union (and hornbook authority it cites),
application of the de
minimis rule has been rejected where the amount has been small but the principle
The Union cites arbitral authority in support of the proposition that the amount of
involved on the dates in question is irrelevant. The Union presents the instant matter as an
significance to it.
The Union rejects the County's arguments as to "past practice" because it regards the
contract language as clear and unambiguous.
The Union denies that its reliance on Article 13, Section D is misplaced, and asserts
County's reliance on Article 4 (Management Rights) is misplaced.
According to the County, the Union concedes that the requirements of Article 21,
were met on both days in question, and therefore no violation occurred. The County defines
requirements as 1) all qualified operators are either on the job or 2) all qualified operators
Neither does the County agree that the manner in which it assigned
work to its foremen on
the days in question violated the parties' collective bargaining agreement. The County is not
to offer work in higher paying classifications to qualified employees in lower paying
before assigning that work to foremen under Article 21, Section A, the County argues.
Moreover, according to the County, Article 21, Section C merely sets forth the
which overtime work is to be offered to employees. Article 21, Section A specifically
kind of situation that existed on February 2 and March 19, 1998, contends the County, while
21, Section C applies to overtime work in general. The County cites hornbook authority in
of its argument that specific provisions should control over more general ones.
The County further views the term "classification" as it appears in Article 21, Section
referring to the job classification appearing in the wage appendix, and not to all employees
qualified to plow snow.
The County further disagrees with the Union's contention that an emergency situation
not exist (for Article 21, Section A purposes) until all vacant beats have been filled in the
outlined in Article 21, Section C.
The County argues that when a snowfall occurs the County must plow the roads as
possible as a matter of public safety. The County believes the Union's interpretation of the
would delay snow removal operations and endanger the public safety. This, according to the
would result because under the Union's interpretation the snowplowing beats of absent
could be offered to employees on overtime only after they completed their own regular beats.
Article 21, Section A of the collective bargaining agreement of the parties prohibits
from performing bargaining unit work except in cases of emergency. An
emergency is defined in the
same section as " . . . a sudden, pressing necessity requiring immediate action." Snow
all qualified operators are either on the job or unavailable is explicitly described as " . . .
constituting an emergency." Put another way, the section protects bargaining unit work for
bargaining unit members, but allows foremen to perform the work in cases of emergency.
Section C of the same Article speaks directly of neither foremen nor emergencies, but
overtime. It describes the procedure to be followed when a need arises for employees within
classification to be assigned to overtime work.
Both parties agree that an emergency within the meaning of Article 21, Section A
February 2 and March 19, 1998. There was an immediate need for snow plowing (removal)
All qualified operators within the bargaining unit were either on the job or unavailable due to
vacation, sick leave, or convalescent leave. There was no available member of the
that was not called in. All available members were engaged in combating the snow removal
But there were not enough bargaining unit members to plow all the beats. On each
unavailable workers had left two slots unfilled. The County chose to fill them with two of
foremen. The Union does not contest the County's utilization of foremen under these
It is, instead, the emergency duties to which the foremen were assigned with which the
issue. In the Union's words, "(r)ather, the Union alleges the County violated the Agreement
manner in which it assigned the foremen snowplow beats on the dates in question."
In my opinion, however, the County was within its rights as to the duties it assigned
foremen on each of the dates in question. I reach this conclusion for several reasons.
The first, of course, is the undisputed fact that an emergency existed on both
February 2 and
March 19, 1998. By contract language definition that included the element that all available
operators were either on the job or unavailable on both occasion.
On both occasions all available qualified operators were called in and assigned to
circumstance where overtime would likely result. Section C of Article 21 was thus moot, for
C only describes an apparently fair and orderly procedure through which bargaining unit
assigned overtime opportunities. Section C does not speak to the issue of offering employees
in a higher classification.
Article 13 of the collective bargaining agreement does speak to that issue. But
provides that any employee that performs work in a higher classification shall receive the
of pay. It does not require the County to advance an employee to a higher
classification when there
is a temporary vacancy.
At the same time, the collective bargaining agreement includes provisions pertaining
management rights of the County. Article 4, Section K, for instance, specifically grants the
the right to determine the methods, means and personnel by which County operations are to
conducted and Section F allows the County to maintain the efficiency of County government
operations entrusted to it. (Both rights, of course, are subject to all of the other provisions of
agreement and applicable law.) Section C authorizes the County to hire, promote, transfer,
and assign employees to positions within the County, again, in accordance with the terms of
I find nothing in the agreement that prohibits the assignments given to both foremen
bargaining unit operators on February 2 and March 19, 1998. The assignments appear to
made in a rational, objective, and thoughtful manner that included assessments of safety and
efficiency. Route and equipment familiarity were factors in those assessments and in at least
resulted in the assignment of a bargaining unit operator (Kirsch) to the work of a higher
for which he received higher pay.
For these reasons I find that Langlade County did not violate the collective bargaining
agreement by its snowplowing assignments to two of its foremen of February 2, 1998 and
March 19, 1998.
The grievance is dismissed.
Dated at Madison, Wisconsin this 12th day of March, 1999.
A. Henry Hempe, Arbitrator