BEFORE THE ARBITRATOR
In the Matter of the Arbitration Between
MARATHON COUNTY SOCIAL SERVICES
DEPARTMENT PROFESSIONAL EMPLOYES
UNION, LOCAL 2492-A, AFSCME, AFL-CIO
(Grievance of Judy Finger)
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall
Street, Schofield, Wisconsin 54476, for the Union.
Mr. Dean R. Dietrich, Ruder, Ware & Michler, S.C.,
Attorneys at Law, 500 Third Street, P.O. Box
8050, Wausau, Wisconsin 54402-8050,for the
On August 17, 1998, I issued an Arbitration Award in the above-cited matter,
Union's grievance concerning the interpretation and application of the terms of the parties'
bargaining agreement relating to seniority and wage rates. I reserved jurisdiction for thirty
case a dispute arose over the application of my Award.
On September 2, Mr. Salamone wrote on behalf of the Union, seeking a clarification
aspect of the award. On September 9, I wrote to inform the parties that I was indefinitely
my jurisdiction in the matter, and requesting a written statement from the employer on the
On September 11, Atty. Dietrich responded on behalf of the County. He wrote that
County was continuing to pay Judy Finger at the hourly rate that existed as of the date of the
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Award, and that Ms. Finger would "also receive any annual wage adjustments (cost of
are granted to all other Social Service Professional Employees through the collective
process." On September 14, Mr. Salamone responded, contending that such a wage
would be "inconsistent with the letter and spirit" of the Award.
On September 22, the parties and I conducted a telephonic conference call, during
was agreed that the parties would submit brief written statements on the dispute. The parties
submitted such statements by September 30, 1998.
On February 8, 1999, I wrote to the parties seeking clarification on the matter of
Finger's then-current rate of pay, and a further statement of the Union's position on remedy
event I sustained its interpretation of the underlying award. The parties responded, in
February 16, 1999.
Did the County violate the Award of August 17, 1998, by
granting to Judy Finger the same
across-the-board wage increase it applied to all other members of the Department of Social
Professional Employees Bargaining Unit? If so, what is the remedy?
The relevant text of the Award at issue read as follows:
2. That Judy Finger's hourly pay rate is frozen at
the level as of the date of this award.
3. That Judy Finger shall
advance on the salary schedule when she accumulates sufficient service
based on a November 2, 1997 starting date on the salary schedule.
On August 17, 1998, Judy Finger's hourly pay rate was $17.97, the rate for a
Worker III. On November 11, 1998, the County notified the Union as follows:
We have decided to pay employees in the two bargaining units
representing employes in the
Social Services Department the annual 3% annual adjustment for 1998, even though these
have not been settled:
DSS Professional Employees Bargaining Unit
DSS Paraprofessional and Clerical Bargaining Unit
The new rates will be reflected on the employee's November 20,
1998 paychecks or direct
deposits. Back wages will be calculated and paid to employees before the end of the calendar
Accordingly, as of February 8 1999, Judy Finger's rate of pay was $18.51 per hour,
a 3% annual adjustment for calendar year 1998.
POSITIONS OF THE PARTIES
The Union believes the answer to the question posed in the statement of the issue is
In support of this position, it asserts and avers as follows:
A reasonable interpretation of the August 17 Award is that
Finger's wage rate be restricted at
the rate as of that date until she achieves sufficient service to advance to the Social Worker
III, 30-month rate. The arbitrator's intention was that Finger's hourly rate be frozen and she
not receive any
other increases, negotiated or otherwise, until that time.
If allowed, the County's payment of an
annual wage adjustment will render the award
meaningless. The outcome would be the same had the grievance been denied, which would
If allowed, the County's action would
provide the employer with unfettered future license to
place any supervisor or new employe anywhere they chose on the salary structure without
possible challenge. This would be contrary to the spirit and letter of the collective bargaining
agreement as well as the arbitration award.
Just as "start" meant "start," so does
"frozen" mean "frozen," that is, incapable of being changed,
moved or undone. The County did not understand what "start" meant until the award; now it
equal difficulty understanding "frozen."
The County believes the answer to the question posed in the
statement of the issue is, "no."
In support of its position, the County asserts and avers as follows:
The language at issue means that Finger does not receive credit
for prior service in the unit or
as a supervisory employe, and thus would not move to a new level on the salary schedule
accumulates sufficient seniority based on a
November 2, 1997 starting date; but the
language at issue does not preclude Ms. Finger from
receiving annual cost of living adjustments not related to her seniority or salary level.
Denying Finger annual adjustments which are not related to her
salary schedule placement would
certainly cause her harm, and would be unfair and inappropriate. The dispute at issue
placement on the salary schedule, not on general wage increases. The issue as presented by
does not include a dispute over the granting of yearly increases that may arise in the future.
suggestion that the Arbitrator has the authority to limit future increases would be contrary to
language in the collective bargaining agreement that prevents the Arbitrator from adding a
provision to the agreement.
The only issue before the Arbitrator was
whether the County had the right to place Finger at the
30-month step on the salary schedule. This issue and the award have nothing to do with the
cost of living adjustments, so Finger should be entitled to receive such adjustments while her
placement on the salary schedule is frozen.
The Arbitrator should clarify the Award to
indicate that Finger is entitled to cost of living
adjustments in future years however, her salary schedule placement is frozen at the current
was in at the time of the arbitration award until sufficient service/seniority is earned in the
On August 17, 1998 I issued an Award which held that the County had violated the
the collective bargaining agreement by placing Judy Finger at the Social Worker III position,
30-month step upon her appointment on November 2, 1997. I held that "by the explicit,
and unambiguous terms of the collective bargaining agreement," Finger had lost all seniority
by working more than 100 months in an unrepresented position, and that the collective
agreement thus prevented the County from placing her at the 30-month step.
At the time of the Award, Finger's pay was $17.97. Had I ordered her placement at
starting rate, she would have been reduced to $15.65 for the period November 2, 1997
1998, with movement at that time to $16.37. Instead, the Award directed that Ms. Finger's
pay rate be "frozen at the level" as of the date of the award, and that Ms. Finger "shall
the salary schedule" when she accumulates sufficient service based on a November 2, 1997
date for that position.
On November 11, 1998, the County granted to all members of the affected
a 3% across-the-board wage increase. It applied this increase to Finger as well. The Union
complained that such action was contrary to the August 17, 1998 Award. The County denied
such was the case.
It is possible that the County interpreted the phrase "frozen at the level" to mean,
"kept at the
Social Worker III, 30-month rate." It is possible the County believed this meant that Finger
receive all wage adjustments as other Social Worker III, 30-month employes. Given the
provision in the award that Finger advance on the salary schedule only upon
seniority I had hoped that the award was understood as an exercise of "red-circling."
I could have been more precise in my language. "Frozen at the level" meant, and means,
same amount" until her seniority was sufficient to put her appropriately in
the 30-month slot. That
is, the Award determined her starting date for the purposes of the application of seniority in
instance to be November 2, 1997. She would thus move to the 6-month rate on or about
1998 and the 30-month rate on or about May 2, 2000 (subject to any changes arising out of
bargaining or other methods of mutually agreeable dispute resolution).
The Union brought a grievance by which it sought a reduction in the wages being
member of its bargaining unit. It then brought a request for further interpretation, again to
represented employe's wages. It claimed that the County's actions effectively nullified the
and impact of the underlying award.
The Union is correct. Adherence to the collective bargaining agreement requires that
my award consistent with the Union's analysis and theory of the case.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the Award of August 17, 1998 is clarified as follows:
Effective as of the date of this Award, Judy Finger's hourly rate of pay is $17.97.
continues as a Social Worker III with a starting date for purposes of salary schedule
November 2, 1997. Her rate of pay will continue at $17.97 until she accumulates sufficient
to advance on the salary schedule, or until the parties mutually agree to provide otherwise.
Dated at Madison, Wisconsin this 14th day of May, 1999.
Stuart Levitan, Arbitrator