BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN STATE BUILDING TRADES,
STATE OF WISCONSIN, UNIVERSITY OF
DIVISION OF ADMINISTRATIVE AFFAIRS
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney John J. Brennan, 1555 North Rivercenter Drive, Suite 202,
P.O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of the Union.
Mr. Frederick J. Bau, Senior Labor Relations Specialist, State
of Wisconsin, Department of Employee Relations, 345 West Washington Avenue, Madison,
Wisconsin 53707-7855, appearing on behalf of the State of Wisconsin, University of
Wisconsin State Building Trades, AFL-CIO and State of Wisconsin, University of
Wisconsin-Milwaukee are parties to a collective bargaining agreement that was in effect at all
times relevant to
this proceeding and which provides for final and binding arbitration of certain disputes. The
by request to initiate grievance arbitration received by the Commission on September 29,
requested the Commission to appoint either a Commissioner or a member of its staff to serve
arbitrator. The Commission appointed Paul A. Hahn as arbitrator on December 3, 1998.
in this matter was held on February 9, 1999 at the University of Wisconsin-Milwaukee,
Union, Milwaukee, Wisconsin. The hearing was transcribed and the parties filed post
which were received by the Arbitrator on April 2, 1999. The record was closed on April 2,
The parties stipulated to the following issue:
Did the Employer violate the collective bargaining agreement
when it issued its policy concerning
leave without pay on June 6, 1997? If so, what is the remedy?
Recognition and Union Security
Section 1. Bargaining Units.
The Employer recognizes the Union as the
exclusive collective bargaining agent for all Craft
employes as listed below:
Bricklayer and Mason
Sheet Metal Worker
Terrazzo and Tile Setter
"Craft employe" means a skilled
journeyman craftworker, including his/her apprentices and
helpers, but shall not include employes not in direct line of progression in the craft.
Employes excluded from this collective
bargaining unit are all office, blue collar, technical,
security and public safety, clerical, professional, confidential, project, limited term,
supervisory employes. All employes are in the classified service of the State of Wisconsin as
in the certification by the Wisconsin Employment Relations Commission as set forth in this
. . .
It is understood and agreed by the parties that management
possesses the sole right to operate
its agencies so as to carry out the statutory mandate and goals assigned to the agencies and
management rights repose in management; however, such rights must be exercised
the other provisions of this Agreement.
Management rights include:
A. To utilize personnel, methods, and
means in the most appropriate and efficient manner
possible as determined by management.
B. To manage and direct the employes of
the various agencies.
C. To transfer, assign or retain employes
in positions within the agency.
D. To suspend, demote, discharge or take
other appropriate disciplinary action against
employes for just cause.
E. To determine the size and composition
of the work force and to lay off employes in the
event of lack of work or funds or under conditions where management believes that
such work would be inefficient or nonproductive.
F. To determine the mission of the
agency and the methods and means necessary to fulfill that
mission including the contracting out for or the transfer, alteration, curtailment or
any goals or services. However, the provisions of this Article shall not be used for the
undermining the Union or discriminating against any of its members.
It is agreed by the parties that none of the
management rights noted above or any other
management rights shall be subjects of bargaining during the term of this Agreement.
it is recognized by the parties that the Employer is prohibited from bargaining on the
practices and procedures of the civil service merit system relating to:
A. Original appointments and promotions
specifically including recruitment, examinations,
certifications, appointments, and policies with respect to probationary periods.
B. The job evaluation system specifically
including position classification, position
qualification standards, establishment and abolition of classifications, assignment and
of classifications to salary ranges, and allocation and reallocation of positions to
the determination of an incumbent's status resulting from position reallocation.
Section 1 Definition
A grievance is defined as, and limited to, a written complaint
involving an alleged violation
of a specific provision of this Agreement.
. . .
Section 2 Grievance Steps
. . .
Step four: . . .
. . .The arbitrator shall not have jurisdiction
or authority to add to, amend, modify, nullify, or
ignore in any way the provisions of this Agreement and shall not make any award which in
would grant the Union or the Employer any matters which were not obtained in the
process. The arbitrator shall render a decision within thirty (30) calendar days following the
or within thirty (30) calendar days of receipt of the briefs submitted by the parties.
The decision of the arbitrator will be final
and binding on both parties to this Agreement.
. . .
Wages and Employe Benefits
. . .
Section 9 Paid Annual Leave of
. . .
E. In scheduling vacation (annual leave), choice of time and
amounts shall be governed by
seniority as defined in Article V. The parties recognize that the Employer has the right to
the number of employes within each classification and work unit that may be on vacation at
time; however, vacations shall be granted at times and in amounts most desired by employes
whenever operations permit. Scheduled vacations may be changed with the approval of
providing no other employe's vacation selection is adversely affected. Once vacation periods
been scheduled, Employer initiated changes in employe vacation schedules shall be made
only to meet
unanticipated staff shortages or emergencies. In the event the Employer finds it necessary to
a scheduled vacation, the affected employe may reschedule his/her vacation during the
the calendar year or extend the scheduling of his/her vacation into the first six (6) months of
ensuing calendar year as they desire, providing it does not affect other employes' vacation
Employes shall be permitted to carry over five (5) days of earned annual leave credit to the
(6) months of the ensuing calendar year upon notification to the Employer.
. . .
Section 11 Leaves of Absence Without
. . .
C. Employes shall have the option to
request the use of leave of absence without pay, at the
amounts listed for the following full years of service. An employe is eligible for a category
at the start
of the first year listed:
Full Years of
Service Leave Without Pay Amount
1- 5 80 hours (10 days)
120 hours (15 days)
16 and over
160 hours (20 days)
Such leave without pay shall be without
loss of seniority, vacation, sick leave accruals or
Legal Holiday eligibility.
The scheduling and use of this leave
without pay shall be in accordance with Article VII,
Section 9E, except that this leave shall only be scheduled in blocks of at least five (5)
work day increments, unless otherwise agreed to by the Employer.
. . .
STATEMENT OF THE CASE
This grievance arbitration involves the University of Wisconsin-Milwaukee
the Wisconsin State Building Trades Negotiating Committee and its Appropriate Affiliated
Trades Councils, (Union) representing the employees set forth in Article II, Recognition.
(Jt. 1) The
Union alleges a contractual violation by the University for the issuance of a Memorandum
6, 1997 from Gary Kressin, Operations Manager of Physical Plant Services for the Employer
Effective June 23, 1997, all personnel will be required to use up
their annual vacation time before
Leave Without Pay will be granted. In addition, any leave without pay must be used in eight
blocks of time. (Jt. 3)
For approximately 25 years prior to this grievance arbitration,
agreements between the Employer and Union have provided employees with a benefit called
of absence without pay, referred to by the parties as "AWOP." This leave is set forth in
Wages and Benefits under Section 11 Leaves of Absence Without Pay. Under
subsection (C) of
that section, employees are allowed to schedule and use leave without pay in accordance with
VII, Section 9(E), which is the contractual provision that covers the scheduling of vacation
paid leave. (Jt. 1) Under the scheduling of vacation, subsection (E) of Section 9, the
schedule vacation based on seniority. The labor agreement provides that the Employer has
to determine the number of employees within each classification that may be on vacation at
time and provides that vacation shall be granted at times and in amounts most desired by
whenever operations permit. (Jt. 1) Until the memorandum from Operations Manager
employees took AWOP in amounts of time as they wished, which could mean as little as
of an hour. Employees also combined AWOP with paid vacation.
During the contract negotiations for the collective bargaining agreement which covers
grievance arbitration (October 11, 1997 June 30, 1999), the parties added to
subsection (C) of
Section 11, Leaves of Absence Without Pay, the restriction that AWOP could only be
at least five (5) consecutive work day increments, unless otherwise agreed to by the
On August 7, 1997, Grievant filed a grievance, alleging a violation of Article VII,
and 11, when his request for AWOP was denied on July 16, 1997 because he had not used
all of his
allowed annual vacation time pursuant to the June 6, 1997 policy. (Jt. 2 and 3) The
denied by Employer representative Shannon E. Bradbury, Labor Relations Manager on
1997. The Employer's response stated that Grievant had been put on notice that pursuant to
Kressin's policy of June 6, 1997, craft employees (Grievant) would have to use up annual
(vacation) before AWOP could be used under Article VII, Section 11(C). (Jt. 2)
The parties processed the grievance through the contractual grievance procedure and
unable to resolve the grievance. No issue was raised as to the arbitrability of the grievance.
in this matter was held by the Arbitrator on February 9, 1999 in the City of Milwaukee at
University of Wisconsin-Milwaukee.
POSITIONS OF THE PARTIES
It is the position of the Union that the Employer violated the collective bargaining
and ignored past practice when it issued its policy requiring employees to use vacation before
could schedule AWOP. The Union argues that the collective bargaining agreement does not
that employees, and specifically the Grievant, must exhaust their vacation time prior to using
The Union points out that the only restrictions on the use of AWOP are one, that it must be
in blocks of at least five consecutive work days unless otherwise agreed to by the Employer,
the Employer has the right to determine the number of employees within each classification
unit that may be on vacation at any given time. The Union pleads the legal position of
unius est alterius in that when the contractual provision contains certain restrictions
on the use of
AWOP, restrictions not stated are excluded. The Union argues the Employer could not
add the restriction set forth in the June 6, 1997 memo that employees would be
required to use up
vacation before AWOP would be granted.
The Union next claims that it has been the Employer's and Union's past practice for
25 years, based on the testimony of the witnesses, that AWOP could be scheduled in the
as vacation and was granted unless operations did not permit the time off. The Union argues
there is no dispute as to this past practice as Operations Manager Kressin admitted such on
record. (Tr-38) The testimony also established, submits the Union, that in the past AWOP
used by employees in conjunction with their vacation time in order to maintain enough paid
paycheck to guarantee receipt of certain contractual benefits. In response to the Employer's
argument that it implemented the new policy because it found increasingly hard to schedule
employees who were using AWOP, the Union states that the Employer has always had the
deny AWOP requests if operations did not permit such time off because of staffing
deficiencies or an
abundance of work.
Arbitration case law, the Union submits, does not allow the management rights clause
used by the Employer to unilaterally change a past practice. The Union argues that the
not proved any significant reason as to why it needed to change contract language and
past practice relating to scheduling of AWOP.
The Union states that the parties have gone through numerous contract negotiations,
the negotiations for the current collective bargaining agreement, and the Employer has never
attempted to add language that employees had to use all of their vacation before they
could use AWOP. The Union points out that the only language that was added during
negotiations for the current contract was to require employees to use AWOP in at least five
consecutive workday increments; the Union thought this modification was to take care of
Employer perceived as abuse of AWOP.
The Union also argues that employees, including Tom Pytlik and Mary Rick, were
required to use all their vacation before they were granted AWOP after the June 6, 1997
in effect. (U. 6 and 7) The Union states its position that the sole impetus for the June 1997
was the Employer's dissatisfaction with Grievant's use of AWOP. The Employer provided
evidence that there was widespread abuse among employees with respect to the use of
necessitated the unilateral issuance of its June 6, 1997 policy. The Union argues that the
ignored the collective bargaining agreement and the longstanding past practice of the parties
unilaterally implementing a change in AWOP. The Union requests that the Arbitrator
June 6, 1997 memorandum to be void and require the Employer to continue to grant AWOP
same manner as it has for the past 25 years.
The Employer maintains that it retains residual management rights to develop policies
matters not specifically limited by the parties' collective bargaining agreement. The
rights clause, the Employer argues, gives it the right to develop reasonable policies to enable
it to run
the business of the Employer. Citing arbitration case law, the Employer takes the position
only limitations on the Employer are those set forth in the collective bargaining agreement.
Employer reasons that under this collective bargaining agreement (Jt. 1) nothing in the
language prevents it from adopting a policy requiring employees to exhaust their vacation
using AWOP. The Employer submits that because of the number of hours employees have
vacation and AWOP under the collective bargaining agreement it is reasonable to allow the
some "small limitation" on the use of the amount of time off in support of legitimate
The Employer argues that Grievant was abusing the use of vacation and leave without
by working just enough hours to keep receiving paid benefits. The Employer notes that with
four electricians (Tr. 42) in Physical Plant Services, Grievant's absence from the work place
detrimental to the Employer. The Employer submitted records to establish a case that the
and craft employee Rick worked few full pay periods in 1997 and 1998. (E. 9, 10, 11
and 12) This,
the Employer submits, demonstrates an operational need to modify the use of AWOP. The
believes that the record supports its action in altering an admitted past practice of AWOP
Employer claims had become abusive. The Employer, citing arbitration case law, submits
a past practice becomes abusive action may be taken by the Employer to correct that abuse.
Employer argues, reviewing its exhibits of Grievant's time off, that tenth of an hour use of
The Employer agrees with the testimony of Union witness Purdy that AWOP
added to the collective bargaining agreement between the parties many years ago because
no provision for vacation time. (Tr. 12) But, argues the Employer, in recent years AWOP
become a "tool" for employees to abuse the Employer by working just enough hours to pay
benefits as required by their "craft" labor agreement. The Employer offers that the AWOP
exceptions granted to employees Pytlik and Rick were for special circumstances and pleads
employees were using AWOP pursuant to its original intent as prescheduled leave not as
unanticipated absenteeism. (Tr. 41 and 55)
In conclusion, the Employer argues that it had an operational need to halt what it
as an abusive practice of the use of AWOP. The Employer argues that it retains the
right to utilize personnel, methods and means in a most appropriate and efficient manner
that it retains all rights it has not given away. Finally the Employer submits that nothing in
contract prohibits the adoption of the June 6, 1997 policy and that since the Employer has
violated the labor agreement the grievance should be denied.
This contract language case is not confused by any significant disagreement over the
Witnesses for both parties testified that for approximately twenty five years employees have
allowed to use AWOP as they wished provided that said use did not cause operational
12 and 37) The issue in this case was clearly presented by the parties and stated another
whether the Employer has the right to alter the way AWOP is scheduled.
I find that the contract language is clear and unambiguous that AWOP is to be
the same manner as vacation. (Jt. 1) The vacation scheduling language I also find to be
unambiguous. Employees schedule vacation pursuant to seniority and at times most
them; the sole limitation to this scheduling is that the Employer has the right to deny
operational needs require the employee to be present. Therefore, AWOP is scheduled the
vacation except with one additional restriction that it must be taken in blocks of five
This restriction was added during the negotiations for the current labor agreement (Jt. 1)
the grievance before the arbitrator. (Tr. 7) The Employer had tried during these contract
to eliminate AWOP entirely but was unsuccessful except for the restriction of five
(Tr. 9) Where the language is clear and unambiguous, I do not need to consider past
negotiation notes but, in this case, past practice supports the employees' right to schedule
they wish except for seniority and the Employer's work needs.
This past practice and the contract language presented a significant hurdle for the
to overcome when it issued its memorandum of June 6, 1997, disallowing the use of
and until the employee had used all of their paid vacation. The Employer
argues it met this burden by proving that the Grievant and one of the other craft
employees in this
bargaining unit had abused the use of AWOP giving the Employer the right to establish the
And the Employer reasons, it had the right under its Management Rights clause to modify
the use of
AWOP because there is nothing in the language of the parties' labor agreement to prevent it
doing so. The Employer specifically relies on the accepted legal theory that management
to it all rights except those specifically modified or given away by contract language.
The Employer in its opening statement stated that it tried to eliminate AWOP in its
in the recent state-wide negotiations for the contract because of abuse problems.
(Tr. 9) The
Employer did not offer any evidence of those state-wide problems so, I consider this
limited to this specific Employer and it is clear that the policy at issue only relates to the
covered by the labor agreement at UW-Milwaukee. (Tr. 13, 43 and 44) (Jt. 3) The
introduced four exhibits to establish its case for abuse of the use of AWOP. The exhibits
time records of the Grievant and employee Rick (Pfaff) for 1997 and 1998. It is clear that
records do establish that these two employees worked very few forty hour or full work weeks
those two years; they used a variety of contractual leaves, including AWOP, to modify their
schedules. (E. 9, 10 11 and 12) The Grievant also admitted that he does electrician work
on the side.
(Tr. 26) However, as admitted to by Operations Manager Kressin, and according to the
themselves, all the time off requested, in the aforementioned exhibits, was approved and
(Tr. 43 and 44) It stands to reason that when one out of four electricians employed by the
takes as much time off as the Grievant, it probably does cause operational problems, but I
am left to
wonder why the Employer did not exercise its clear contractual right to deny the leave
requests if the
leaves were adversely affecting the Employer's operation. If there was abuse, it was
by the Employer.
The Employer cites several cases to support its contractual right to issue the policy.
cases state the arbitration standard, cited by the Employer in its post-hearing brief, that the
rights of management are upheld unless expressly prohibited or expressly limited by the
the labor agreement. However the facts of these cases I find do not support the Employer in
case. Cleveland Newspaper is a case that dealt with elimination of work. In ruling for the
company, the arbitrator found that there was no prohibition in the contract to prevent the
from eliminating work in the composing room. The arbitrator in that case was not, as I am
case, dealing with specific contract terms on how AWOP is to be scheduled which state the
restrictions the Employer in this case can use to limit AWOP. 1/ In Metal Specialty Co., the
arbitrator was not dealing with a contract term at all but with a past practice regarding the
vending machines and breaks. In that case, the company proved abuse of the practice by
because they were taking more and longer breaks. The arbitrator found that the company did
accept this abusive practice and therefore lacking mutuality there was not a past practice
2/ In the case before me, I am dealing with a clear contract term and a past practice
by both parties. In
Vacaville Unified School District, the arbitrator had to answer the issue of whether
to go skiing was a bonifide use of personal necessity leave provided under the agreement. In
case, the contract term was ambiguous as the contract did not define what was the accepted
of personal necessity. Both parties accepted the testimony of a note taker at their contract
negotiations that the leave was not to be used for recreation. Negotiation notes have long
accepted by arbitrators to determine the meaning of ambiguous contract language and the
found for the school district. 3/ Again, in this case, I am considering specific contract terms,
scheduling of AWOP, that I have found to be clear and unambiguous.
1/ Cleveland Newspaper Publishers Association, 51 LA 1174 (Dworkin, 1969).
2/ Metal Specialty Co., 39 LA 1265 (Volz, 1962).
3/ Vacaville Unified School District, 71 LA 1026 (Brisco, 1978).
In my opinion, the cases cited by the Union in this matter, as applied to the facts
in this case, provide substantial support for the Union position that the June
memorandum (Jt. 3) was an unlawful, unilateral modification of the parties' labor
agreement. In Weyerhaeuser Co., the contract language provided that employees' work
schedules would not be changed for the sole purpose of avoiding overtime. A practice
had been in existence for twenty years that provided employees with a paid lunch which
in effect gave the employees thirty minutes of overtime per day. The company
unilaterally eliminated the paid lunch, eliminating two and one-half hours of overtime
per week. The company argued that under its broad management rights clause it was
not prevented from changing this practice as no limitation on its rights dealt with the
practice. Further, it had not changed the practice solely to limit overtime. The
arbitrator found that the practice was of long length and consistency and that the
company had never tried to change it during contract negotiations. The practice was
an accepted part of the working conditions of the employees and became a reasonable
economic expectation. In ruling against the company in that case, the arbitrator said
the issue should be addressed in contract negotiations. 4/ In the case before me, the
Employer is trying to modify the use of a contractual benefit of long duration and
practice without a clear sign of abuse. While the practice in Weyerhaeuser may have
modified the contract term allowing the elimination of
overtime as long as it was not for that purpose alone, in this case, the practice for use
of AWOP supports the contract AWOP scheduling language that the Employer is trying
4/ Weyerhaeuser Co. 95 LA 834 (Allen, 1990).
Brown and Williamson and Boise Cascade support the Union's argument that if
the labor agreement lists certain restrictions for the use of AWOP then those that are
not listed are excluded. 5/ Here the contract language for the scheduling of vacations,
which clearly and by the admission of the parties is the language for the scheduling of
AWOP, lists restrictions of seniority, blocks of five consecutive days and if the
operations of the Employer permit. Otherwise, scheduling is at times most desired by the
employees. What the Employer in this case is trying to do is add another restriction that
AWOP can only be used after all vacation is used. There can be little issue that the
Employer in this case is trying to unilaterally add a provision to the contract.
5/ Brown and Williamson Tobacco Co. 92 LA 722 (Nicholas,
1989) and Boise Cascade
Corp., 111 LA 231 (Snow, 1998).
A case I find close on point is Inland Employees Federal Credit Union. In that
case, the employees had three personal days the scheduling of which, as with vacations,
required two day's notice. The company denied an employee, who gave the required
notice, funeral leave for a Friday/Saturday based on the fact that these were busy
days. The only restriction on use of the personal leave in the contract was that it had
to cause minimum operational interference. The arbitrator in ruling against the
company found that there was no "busy day" restriction in the labor agreement and
refused to add such a restriction. The arbitrator held that when agreeing to add the
personal days to the contract, it was incumbent on the company to anticipate that there
was the possibility of busy days. 6/ While the Employer in this case may not have
originally anticipated that employees would schedule AWOP in tenths of hours it
allowed the practice, and, more importantly, the Employer had a contract provision
that specifically allowed it to deny those tenths of an hour usage if it affected the
Employer's operation; it simply never exercised that right.
6/ Inland Employees Federal Credit Union, 98 LA 728
If in this case we were merely dealing with a past practice, the Employer might
have a stronger case, but we are concerned with contract provisions that specifically
govern the scheduling of AWOP. The Employer would have me add a provision to the
labor agreement by agreeing that the June 1997 policy was permissible. But, as discussed
above, this alleged policy is more that just a work rule policy; it in fact becomes a term
of the agreement because it modifies terms of the agreement by adding another
contractual restriction for the use of
AWOP. If there were no terms of the agreement concerned with scheduling of
it might be different but that is not the case here. Arbitration case law, as well as the
parties' labor agreement, does not allow me to add terms to the parties' agreement. I
note that the parties negotiated a provision that effective with the current contract
AWOP must be taken in blocks of five consecutive days. This should eliminate much of
the problem of short term use of this benefit and enhance the Employer's legitimate
ability to schedule and perform work. Further restrictions on the use of AWOP should
be addressed at the bargaining table.
Based upon the foregoing and the record as a whole, I enter the following
The Employer violated the collective bargaining agreement when it issued its
policy on June 6, 1997, restricting use of leave without pay. Therefore the grievance is
sustained. The Employer is directed to continue to schedule leave without pay pursuant
to the language of Article VII, Section 9(E) and Article VII, Section 11(C).
Dated at Madison, Wisconsin this 27th day of April, 1999.
Paul A. Hahn, Arbitrator