BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 3833, AFSCME, AFL-CIO
HARTLAND-LAKESIDE JOINT SCHOOL DISTRICT
Mr. Sam Froiland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Ms. Eileen A. Brownlee, Krammer, Brownlee and Infield, LLC,
Attorneys at Law, appearing on behalf of the District.
The Union and Employer named above are parties to a 1996-1999 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
the Wisconsin Employment Relations Commission to appoint the undersigned to hear the
of Becky Zingler regarding summer employment. A hearing was held on February 26,
Hartland, Wisconsin, at which time the parties were given the opportunity to present their
and arguments. The parties completed filing briefs by April 26, 1999.
The issue to be decided is:
Did the School District violate the collective bargaining agreement
when it paid Becky Zingler
at the rate of $6.50 per hour as a seasonal custodial worker for work that she performed
June 9 and August 14, 1998? If so, what is the appropriate remedy?
A. Regular Full-Year, Full-Time Employee: A
regular full-year, full-time employee is hereby
defined as an employee working at least thirty-five (35) hours per week on a calendar year
(40) hours for maintenance and custodial employees.
. . .
F. Seasonal Employees: A seasonal employee is
defined as an employee working during summer
vacation, or winter or spring break.
. . .
JOB POSTINGS AND TEMPORARY ASSIGNMENTS
A. Vacancies: Whenever any vacancy occurs,
which the District deems is necessary to fill, due
to the retirement or termination of the incumbent employee, the creation of a new position,
whatever reason, the job vacancy shall be made known to all employees through job
B. Posting: Job vacancies
shall be posted on the Union bulletin board in each school for ten (10)
consecutive work days. Jobs shall be posted simultaneously in all locations, and shall
include the date
that the posting goes up, and the date that the posting is to be taken down. The local Union
will be given a copy of all job postings when they are posted.
C. Notice: The job posting
shall set forth the job title, work location, schedule of hours, rate
of pay, and a brief description of the job requirements as set forth by Board policy, and the
. . .
G. Temporary Assignment: The Employer may
temporarily assign an employee to any job on
the same shift, and shall not be required to follow the procedure set forth in Section 8(A) and
1) Employees temporarily assigned to a job
in a lower rated range will retain their regular rate
2) Employees temporarily assigned to a
higher rated range shall receive the rate of pay equivalent
to their current step on the salary schedule.
. . .
HOURS OF WORK
. . .
G. Additional Work: With the exception of work
performed by two seasonal custodial
employees, and clerical/aide assistance work performed for summer school, and checking in
supplies (unless the persons performing that work as of July 1, 1990 no longer perform that
if additional work to be paid for out of the District's budget which is normally performed by
bargaining unit employees become available during periods when school term employees are
working, such work shall be offered to school term employees on a seniority basis before
non-bargaining unit employees are scheduled or called in provided however, that such school
employees are qualified and capable of performing the available work.
. . .
The Grievant, Becky Zingler, has been a special education teacher's aide in the
1994. During the summer of 1998, she worked as a seasonal custodian in the District. She
a job posting for the work, which stated that a seasonal custodial worker position would be
between June 8, 1998, and August 21, 1998, at the pay rate of $6.50 per hour. Her regular
$10.62 in 1998 until June 30th, when it became $11.44 per hour.
Zingler started the seasonal position on June 9, 1998, and continued in that position
August 14, 1998. She cleaned carpets, furniture, walls, windows, offices, and moved
supervisor was Sherry Brown, and she worked with all the custodians, both regular and
custodians. Union dues were deducted from her paycheck during that summer, and she
health insurance benefits without paying a portion of July's premium as required for
employees. Zingler did not question the wage rate of the seasonal position until the middle
summer. She filed a grievance on July 22, 1998, requesting that her regular rate of pay be
Sherry Brown is a custodian at the District. She has worked at the District for 21
is currently the President and Chief Steward of the Union. She has held those Union
the employees were represented by the Union starting in 1987. She was involved in contract
negotiations, and recalled that the exceptions in the language in Article 10(G) gave the
flexibility. In the first contract, the District had to post everything. In negotiations for the
contract, Brown recalled that the District said it did not want the financial burden of paying a
bargaining unit employee compared to a seasonal employee, so the Union agreed to two
in Article 10(G).
Brown testified that the two seasonal custodians have typically mowed the lawn and
yard work. On rainy days or when the yard work was done, they helped the custodial staff
summer cleaning. Seasonal employees do not pay Union dues and the Union does not
their wages or benefits.
The parties' first contract for 1987-1990 called for all additional work to be offered
term employees before others in Article 10(G). During the negotiations for the 1990-1993
the District wanted to be able to use seasonal employees, and the Union agreed to change
10(G) to allow the District to hire two seasonal employees without offering those positions to
bargaining unit employees first. The parties also carved out a couple of other exceptions in
10(G) for clerical/aide assistance for summer school and the person checking in supplies.
clerical/aide assistant, Emilie Beaumont, works every summer at her regular salary of a
education aide. Beaumont also performs some of the work of checking in supplies, along
Hetznecker. Hetznecker was also a special education aide and was paid her regular rate for
summer work, although she has since resigned that job. Both Beaumont and Hetznecker paid
dues during the summer.
In bargaining for the 1993-1996 labor agreement, the District proposed to eliminate
seasonal employees from Article 10(G) and put seasonal employees in the contract without
on the number of them. The District proposed to delete the word "two" from the section,
Union resisted the proposal and the language was not changed.
During the negotiations for the 1996-1999 contract, the District proposed to eliminate
10(G) from the contract. The District wanted to have more seasonal employees and believed
hire two seasonal employees for the cost of one Union employee, according to Brown. The
position was that bargaining unit employees should be able to have the summer custodial
work if they
were qualified, and that they should receive Union wages.
The District hired two seasonal employees for the summer of 1998 --- Devin Webb
Geiser. Seasonal employees do not get any insurance or other benefits under the labor
District has posted the openings for seasonal work around bulletin boards and in the District
with the wage rate of $6.50 per hour. No one from the bargaining unit other than Zingler
summer custodial work, although others expressed an interest in the work. Bob Benzel made
than the $6.50 per hour but he was hired as a temporary employee at $8.50 per hour.
worked as a substitute and worked in the summer.
The Director of Business Services for the District is Pete Balzer. He has been
the District since 1990 and took part in contract negotiations. He recalled that the District
to expand its seasonals from two to four because the regular custodial staff was restricted to
vacation and compensatory time off largely in the summer months. The District was left
in the summer. Balzer testified that two seasonal employees were not getting the outside
so the District wanted four young, physically capable college students.
Balzer did not recall specifically whether the payroll person asked about him
Union dues from Zingler's summer paychecks. He assumed that Brown must have indicated
payroll that Union dues be withheld. He was not certain about the contract language
insurance for the summer months, and decided to err on behalf of the employee and pay the
for Zingler for July.
Balzer stated that the District has consistently paid seasonal employees the $6.50 per
rate. He thought that the rate had perhaps stopped other bargaining unit employees from
the position after they inquired and found out that they would be paid $6.50 per hour.
that Benzel was not hired as a seasonal employee, but he was hired as a temporary employee
could be confused with summer help from the records. Two other employees, Bob Sizer and
Ford, were hired as substitute custodians and may have worked during the time when they
confused with summer help.
The current Director of Buildings and Maintenance is Stephen Hogan, who started
for the District in the summer of 1998. He noted that the summer custodial staff does more
menial work, the heavy lifting, moving, or non-technical work. They also do some cleaning
using equipment such as buffers or scrubbers, although they use vacuums. Brown oversaw
seasonal staff during the summer of 1998 and assigned their work.
THE PARTIES' POSITIONS
The Union relies on the bargaining history to show that the language of Article 10(G)
its position that bargaining unit members should get their regular rates when taking seasonal
Brown participated in bargaining for every contract negotiated between the Union and the
and she testified that the District sought to limit the application of Article 10(G) by allowing
District to hire seasonal employees without posting the work. In the first contract, Article
required that all additional work be posted. Brown testified that the District sought to hire
employees before posting additional work for bargaining unit members in order to pay them
During the 1990-93 negotiations, the Union agreed to the District's proposals to
couple of positions from the posting requirement. It agreed to exempt the clerical/aide
that Beaumont performs every year. Beaumont is paid at her school year special education
for performing this work. Also during the 1990-93 negotiations, the Union agreed to the
proposal to exempt the work of checking in of supplies from the posting requirement.
performed this work for many years, and she was also paid at her school year rate of a
education aide for the additional summer work of checking in supplies.
During the negotiations for the 1996 contract, the District sought further exceptions
obligation to post additional work. The District wanted to be allowed to hire four seasonal
employees before posting the additional work, because Balzer thought the District could get
seasonals for the price of one bargaining unit employee.
The Union notes that Zingler had Union dues deducted from her wages over the
as Beaumont and Hetznecker have who also performed additional work as Union employees.
Zingler's insurance premiums were also paid by the District throughout the summer. The
no examples of paying health insurance benefits for seasonal employees. The facts of the
deductions and the insurance benefits fly in the fact of the District's contention that Zingler is
The Union concludes that the only manner in which the District treated the Grievant
seasonal employee is from the perspective of her rate of pay. It erred in paying her as a
employee. She is a bargaining unit employee who performed additional summer work. She
be paid the difference between her contractual rate of pay as a special education aide and
hour for all hours worked between June 9 and August 14, 1998.
The District contends that the collective bargaining agreement does not require that
bargaining unit members employed as seasonal workers be paid at their regular rate of pay.
provisions of Article 8 do not apply to seasonal work. Under the terms of Article 10(G),
unit members have a right of first refusal for seasonal work positions once the District has
its right to hire two seasonal employees. Bargaining unit members have the right to
whether or not to apply for and accept such seasonal positions, and Zingler had that right as
The District notes that it has posted seasonal positions in the past for several years. No
unit employee has accepted one of these positions until Zingler did in 1998, although some
unit members inquired about positions.
The District asserts that Article 10 is silent as to the compensation to be paid for
work. While the Union has argued that the compensation provisions of Article 8 govern the
compensation to be paid to bargaining unit members doing seasonal work, Article 8 does not
to the filling of seasonal positions under Article 10. Neither article cross references the
8 clearly contemplates a transfer from one bargaining unit position to another on a permanent
The provisions of paragraph E describe completion of a probationary period, probationary
permanent rates of pay, the right to bump back into a previously held position if the transfer
unsuccessful, the procedure for posting positions and the selection criteria.
Article 10 also establishes a posting procedure, criteria for selection for employment
parameters for applying for seasonal positions. The District maintains that if the provisions
8 were intended to apply to the hiring of seasonal help, Article 10 would be superfluous as
8 also covers those matters. A contract interpretation which renders
contractual language superfluous is not condoned under either labor or contract law.
District states, it appears that the Union's argument is that the parties intended that only the
provisions of paragraph (E)(2) of Article 8 be incorporated wholesale into Article 10.
Nothing in the
bargaining history or in the language of the contract lends itself to such an interpretation.
Although the Union has argued that the wage provisions under Article 8 apply to
employment under Article 10, it has further argued that employees be paid what they would
during the school year for performing the work they ordinarily do during the year. The
Zingler paid at her special education aide rate for work done as a seasonal custodial worker.
is inconsistent with Article 8. The job classification in which Zingler worked would first
have to be
identified. There is no seasonal custodial worker in the classification system.
The District states that the Union is asking that the wage provisions of Article 8 be
incorporated into Article 10 through arbitration, and that the provision be rewritten to enable
bargaining unit members to earn their regular wage during the summer regardless of what
perform in the summer. Such a result compels the arbitrator to either add terms to the
bargaining agreement or modify the terms of the agreement, which is not allowed under the
The District asserts that neither the bargaining history nor past practice support the
interpretation of Article 10. The Union has pointed to the fact that Zingler paid Union dues
summer and got insurance benefits ordinarily not paid for school year employees. There is
evidence that the Union dues were withheld from Zingler at the behest of the District.
that the language of the contract with respect to the payment of insurance premiums was
to him, and he erred in favor of the employee. The District erred in paying the premiums on
of Zingler for the month of July. It was only required to pay one-half of the July premium
full-time full year employees and for school year employees required to work in July, and
not required to work in July, and she was not a full-time full year employee.
While the Union argued that the District acknowledged it would have to pay more to
bargaining unit members who work as seasonals during negotiations, there was no evidence
wage rate was negotiated for such employees. The parties did not discuss how such a wage
benefits would be calculated. There was no agreement that the wage provisions of Article 8
apply to such work. By contrast, the District had a long established practice of setting the
wage rate, posting that rate on Union bulletin boards and then paying that rate. The Union
questioned the propriety of this practice. There is a clear past practice of establishing the
such work. The parties have a zipper clause, and the Union should not now be entitled to
through arbitration what it neither requested nor obtained in negotiations.
Finally, the District states that if it violated the agreement, the wages should be paid
custodial aide rate less benefits paid out for insurance. Zingler was not performing special
aide duties during the summer. The work she performed most closely follows the duties of
aides. If any wage should be paid, it should be the difference between $6.50 and $9.17 an
work through June 30, and the difference between $6.50 and $9.49 an hour for summer
July 1, 1998. Any back wage award should be offset by one-half of her health insurance
July which the District paid, and holiday pay, if any.
The Union Reply
The Union takes issue with the District's assertion that there was no evidence that a
was negotiated for employees such as Zingler. Brown testified as to the terms under which
parties agreed to compensate bargaining unit employees when they performed additional
Beaumont and Hetznecker are paid at the special education aide rates even though neither
the work of a special education aide during the summer. The Union is asking nothing more
Grievant in this case.
Zingler testified that she performed the same work during the summer that the day
evening shift custodians were performing, contrary to the District's position. The District
post this work as seasonal custodial and pay a bargaining unit employee at a rate far below
agreed to for custodians. The clear language of the labor agreement and the testimony of
should prevent such an effort by the District.
The District has argued that if it is found to have violated the agreement, the
have to determine which section of the wage scale is appropriate. Zingler's unrefuted
that she performed the same work as day shift and night shift custodians. The Union could
requested that this be construed as a promotion. In fact, Zingler performed work of a higher
classification throughout the summer. The District may argue that this was a temporary
but the language of Article 8 spells out how rates are impacted under such circumstances.
the language of Article 8 as it relates to temporary assignments, it could be argued that
entitled to day shift custodian rates of $13.81 and $14.86 an hour.
The Union believes that the clear language and bargaining history stand in stark
the District's assertion that the Union should not now be entitled to obtain through arbitration
it did not request or obtain in negotiations. The bargaining history establishes that the
to expand its right to use non-bargaining unit employees in an effort to limit costs. The
seeks to obtain through the grievance arbitration process what it specifically requested and
unable to obtain at the bargaining table. The District treated Zingler the same way other
unit members were treated as to dues deductions and insurance, except for her rate of pay.
District determined that this position was a seasonal employee despite the fact that they had
hired their two seasonal custodial employees.
The District correctly states that Article 8 does not apply to this situation. The
Article 8(G) for temporary assignments states in the first sentence that the Employer is not
to follow the posting procedures of Article 8(A) and (B) for temporary assignments. This
posted position that was required to be posted under both Article 8(A), which requires a
"whatever reason," and Article 10(G), which is for additional work. Zingler was not
assigned to a job in a lower rated range by the District she posted for additional
hours for the
seasonal custodial position. Thus, any reliance on Article 8(G)(1) to retain the aide's rate of
However, Article 10(G) applies to this case. The most important phrase is: ". . .
shall be offered to school term employees on a seniority basis before non-bargaining unit
are scheduled . . ." The language gives bargaining unit employees the opportunity to get the
It is a right of first refusal, after the exceptions carved out for seasonal custodians and the
and person who checks in supplies. There is no mention of what pay rates will be given for
additional work. The wage rates in Appendix A do not list any rates for seasonal work.
The Union notes that the two exceptions for bargaining unit employees the
assistance for summer school and the person who checks in supplies are both paid at
bargaining unit rates. It therefore assumes that any bargaining unit employees should retain
regular rates of their bargaining unit positions when taking additional work under Article
However, in carving out the two exceptions for the bargaining unit employees who had those
as of July 1, 1990, the parties grandfathered those employees for such work. One could
situation with Beaumont and Hetznecker in two ways. One way would be that when
members take summer work, they retain their bargaining unit wages. The other way would
the situation with Beaumont and Hetznecker was specifically carved out, so that as long as
individuals held those positions, they would be treated differently than other people taking
Clearly, there was no meeting of the minds on what wage rates would be paid to
employees who might be offered additional work after the District hired two seasonal
The bargaining history of Article 10(G) is of limited value. On one hand, the
to expand its right to hire seasonal help without offering the positions to bargaining unit
Why would it need to bypass bargaining unit employees if it could pay them seasonal rates
their regular bargaining unit rates? Brown testified that the District thought it could get two
seasonals for the price of one bargaining unit member. On the other
hand, Balzer testified that the District wanted the opportunity to get younger,
college students to do some heavy lifting or more physical type of work. It also wanted
seasonals because the regular custodial staff was restricted to taking vacation and
mostly in the summer and the two seasonal employees were not getting the outside work
It is not clear from the bargaining history that the parties intended that seasonal work
offered to bargaining unit employees would be paid at their regular school year wage rates.
parties do not agree on the rationale that was being offered by the District for its bargaining
proposals. The language itself only guarantees that work will be offered to bargaining unit
after the exceptions noted in Article 10(G). Nothing in the language nor the bargaining
shows what the parties intended for wage rates for additional work being offered to
The past practice is that the District posted this seasonal custodial work for several
a rate that it unilaterally determined, $6.50 per hour. The Union never grieved it, even
bargaining unit members inquired about it and declined to take the positions being offered at
If the Union thought that this seasonal work was to be paid at the wage rates paid to
members when it was posted, it could have grieved it and not waited until someone took the
as it was being offered.
The fact that the District paid Zingler's health insurance premium should not
held against it in this case. The District was unsure about the matter and opted in favor of
employee. Zingler got an unexpected benefit by the District's action. While it might be
for the District to try to recover the portion of the premium that it already paid out, the
should not be forced to pay wage rates which have not been negotiated on that basis alone.
record is unclear as to why Zingler's paycheck included a dues deduction, and it may have
the direction of the Union President, not at the direction of the District. Again, that fact
be held against the District.
The parties have made suggestions of four different wage rates in this case
from the posted
seasonal rate of $6.50 per hour - to the custodial aide rate - to the special education aide
rate - to
the day shift custodial rate. There is no sound basis to grant any of those rates except for
seasonal rate of $6.50 per hour because of the following reasons. First, the job was posted
rate, and the Grievant accepted the position as posted and did not grieve it until she had been
job for several weeks. Secondly, this position had been posted several times in the past, and
employees, possibly with more seniority than the Grievant, had not taken the job. Third, the
never grieved the posted wage rate either in the past or when the current posting went up.
the language of Article 8 does not apply and the language of Article 10(G) provides only that
work be offered to bargaining unit employees. Fifth, the bargaining history and practice
do not help
to determine the parties'
understanding of the wage rate to be applied. And sixth, and most importantly, the
negotiated a wage rate for this seasonal work. While the Union has asked that Zingler be
paid at her
contractual rate of pay, there is no contractual rate of pay for the work she performed, and
parties negotiate such a wage rate, there is no contract violation for paying a seasonal rate
by the District.
For all of those reasons, I find that the District did not violate the collective
agreement by paying Becky Zingler the rate of $6.50 per hour as a seasonal custodial worker
work she performed between June 9th and August 14th in
1998, and the grievance will be denied.
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin this 3rd day of June, 1999.
Karen J. Mawhinney, Arbitrator