BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AMERICAN FEDERATION OF STATE, COUNTY AND
AFL-CIO, WISCONSIN COUNCIL 40, LOCAL
AMERICAN NATIONAL RED CROSS, BLOOD
(grievance dispute concerning November 1, 1997 step increases)
Mr. Laurence S. Rodenstein, District Representative, Wisconsin
40, AFSCME, AFL-CIO,
8033 Excelsior Drive, Suite B, Madison, Wisconsin 53717-1903, appearing on behalf of
Berry Moorman, P.C., by Attorney Fred W. Batten, 600
Place, Detroit, Michigan
48226-4387, appearing on behalf of the Employer.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned Marshall L. Gratz to hear and decide a grievance dispute
whether certain employes are entitled to retroactive wage schedule step advancement effective
November 1, 1997. The dispute involves the parties' November 1, 1994 -- October 31, 1997
Agreement (referred to as the Agreement or the 1994-97 Agrement) and the parties'
agreement tentatively settled on May 8, 1998, and subsequently ratified (referred to as the
By agreement of the parties, the record was submitted by stipulation. It consisted of
a set of
documentary exhibits, some of which were identified as joint, but none of which were
Those documents included a time line listing various factual developments giving rise to the
and the arbitration. The parties agreed to submit briefs and reply briefs (if desired). They
agreed that "[i]f the arbitrator determines that testimony is necessary, a hearing will be
the arbitrator. Either party may request a hearing, but the arbitrator shall decide whether
After a simultaneous exchange of initial briefs, the Arbitrator received the
brief on April 29, 1998. On the same date the Arbitrator was advised that the Union would
filing a reply brief and that neither party would be requesting an opportunity to submit
evidence. Accordingly, the record was closed as of that date.
On the basis of the record submitted, the Arbitrator issues the following Award.
The parties did not agree on a statement of the issues. The Union would state the
1. Did the Employer violate the collective bargaining agreement
failed to advance the
grievant(s) along the salary schedule pursuant to Appendix A of the 1994-97 Agreement?
2. If so, what is the appropriate remedy?
The Employer would state the issue as follows:
Whether the contract negotiations which resulted in the May
resolved all issues?
The Arbitrator frames the issues for determination as follows:
1. Are Wendy Kluver, and all those similarly situated, entitled to
for the Employer's
failure to grant them wage schedule step advancement effective November 1, 1997?
2. If so, what shall that remedy be?
PORTIONS OF THE 1994-97
ARTICLE 8 - GRIEVANCE AND ARBITRATION
The parties agree that grievances are to be resolved as soon as
and to that end
establish this procedure.
8.1 A grievance is defined as any dispute
the meaning, application or interpretation
of the terms and provisions of this Agreement. A grievance shall be submitted to the
ten (10) working days of its occurrence or knowledge thereof or it shall be barred.
. . .
8.5 Time limits set forth in the foregoing steps may be
extended by mutual
writing. Failure to abide by such time limits or any extension thereof shall cause the
grievance to be
. . .
ARTICLE 20 - COMPENSATION AND
20.0 Employees shall be paid in
Appendix A attached hereto and made a part
hereof. Employees hired prior to November 1, 1985 shall receive the compensation step of
classification based upon unit seniority as defined in Article 10 and shall receive an
each November 1 thereafter based upon unit seniority as defined in Article 10. Employees
November 1, 1988 shall receive the starting rate of their classification when hired.
successful completion of probation, they shall receive the next compensation step of their
classification. Upon completion of one year of service, they shall receive an adjustment to
step of their classification and, thereafter, shall receive adjustments each November 1 based
seniority as defined in Article 10.
. . .
ARTICLE 34 - NOTICE OF STRIKE OR
34.0 The Union recognizes the critical
impact of the
Employer's operations on the health of
the public. Therefore, the Union agrees that it will give notice to the Employer and the
Mediation and Conciliation Service
before the employees covered by this Agreement engage in any
picketing or other
concerted refusal to work as if the Employer were entitled to the protection of Section 8(g)
National Labor Relations Act, as amended.
This Article shall survive the expiration of
Agreement and shall remain in full force and effect
until the occurrence of any of the following:
(a) the execution of a new labor agreement
the parties, or
(b) the written relinquishment by the
Union of its
representation of the employees covered by
this Agreement, or
(c) the issuance of any order by the
Relations Board that has the effect of
terminating the Union's representation of the employees represented by this Agreement.
ARTICLE 37 - TERM
37.0 This Agreement shall go into effect
November 1, 1994 and continue until midnight
October 31, 1997 and shall be considered automatically renewed from year-to-year
on or before sixty (60) days prior to the end of the effective period, either party shall serve
notice upon the other that it desires to renegotiate, revise or modify this Agreement subject
provisions of Article 34 - NOTICE OF STRIKE OR PICKETING. In the event any such
served, the parties shall operate temporarily under the terms and provisions of this
a new Agreement is entered into, at which time such new Agreement shall be effective as the
. . .
[The Agreement's Appendix A consists of three pages of grids
1, 1994 Compensation Steps," "November 1, 1995 Compensation Steps," and "November 1,
Compensation Steps. For each classification, a set of increasing rates are provided under
headings of "Hire, Completion of Probation, One Year, Two Year, Three year, Four Year,
Eight Year and Ten Year."]
PORTIONS OF THE MAY 8,
a) Modified Wage Structure
implemented effective May 18, 1998.
b) 1.5% Retro-wage adjustment
from November 1, 1997 through May 18, 1998 based
on actual earnings.
c) 1.5% effective May 18, 1998 (assuming
of ratification no later than May
d) 3% structure increase
first full pay period after November 1, 1998.
e) 3% structure increase
first full pay period after November 1, 1999.
f) Employees will receive the
greater of the structure increase or 3% on the employee's
then existing wage rates (1.5% for May 18, 1998).
g) Employer may continue past
practice of hiring at above start rates for reference lab
. . .
[The Tentative Agreement's attached
Structure" consists of three pages of wage
rate grids respectively entitled "Schedule Effective May . . . 1998",
1998," and "Schedule Effective November 1999." For each classification, a set of increasing
is provided under column headings of "Hire, Probation, YrOne, YrTwo, YrThree, YrFive,
YrNine, YrEleven, and YrThirteen."]
The Employer is a federally-chartered corporation that provides regional blood
locations in Madison and Green Bay, Wisconsin. The Union represents the Employer's
non-professional personnel at those locations. The Employer and Union have been parties to
collective bargaining agreements since November 1, 1988, including the Agreement and the
Grievant Wendy Kluver has been employed by the Employer since July, 1993. At all
times, the Grievant's grade classification has been T2. Grievant Kluver had four years of
as of November 1, 1997.
As of November 1, 1997, the parties' 1994-97 Agreement had passed its nominal
date, but the evergreen clause in Article 37.0 remained in effect. It is undisputed that the
did not advance Grievant's wage step placement on November 1, 1997, and did not advance
employes similarly situated, such that those employes' wage rates remained at the rates
November 1, 1996.
On May 8, 1998, the parties reached Tentative Agreement on a new contract, which
subject to ratification. That Temporary Agreement provided, in pertinent part, as set forth
On May 11, 1998, Grievant and another bargaining unit member met with the
Human Resources Manager, John Ridgely. As described in the undisputed timeline, the
with Ridgely "to inquire about 11/01/97 wage adjustments; John Ridgely says no 11/01/97
adjustments, all wage adjustments having been negotiated in new contract."
On May 19, 1998, a Union Steward filed a grievance on behalf of Kluver "and all
employees to whom this grievance applies or affects" asserting that as of May 11, 1998, the
Grievant was "officially notified on,"
The employer has failed to comply with the appendix A
in effect on 11-1-97,
by not advancing the employee's wages from the Three year to the Four Year T-2 Step after
By its action, stated above, Red Cross
has violated Article 37.0 and Appendix A
Compensation Steps, and all other sections which may apply of the LABOR AGREEMENT
and signed on December 14, 1994.
(. . . corrective action desired):
1.) Retroactive payment of wages lost
November 1, 1997 through the time a Tentative
Agreement for a new contract has been ratified by the union.
2.) Advancement to the T-2 Four Year
Step prior to
the ratification of a new contract,
ensuring that any wage increase contained in the new contract is based on the T-2 Four Year
wage from the preceding contract.
Later that same day, the Union held a ratification meeting
members at the Green Bay
location regarding the Tentative Agreement.
On May 21, 1998, Union Representative Larry Rodenstein had a telephone
Ridgely regarding the above grievance. Rodenstein told Ridgely that the "issue would be
at the Madison ratification meeting. After that phone conversation, and also on May 21,
Union held a ratification meeting at the Madison location regarding the Tentative Agreement,
which the contract was ratified.
On May 26, 1998, in a letter from Ridgely to the Union's Local President, Mary Kay
Schimming, the Employer denied the grievance, stating "There was no violation of the
change in practice. Your requested settlement of this grievance is respectfully denied."
On May 28, 1998, Local President Schimming orally advised Ridgely that the
On June 5, 1998, the Employer made a retroactive 1.5% lump sum payment to all
On June 9, 1998, Schimming filed a grievance on behalf of all Local Union
asserts that as of a May 11, 1998 "date of the alleged infraction,"
The Employer has failed to comply with Appendix A
Compensation Steps in
effect on November
1, 1997, by not advancing wages for Local 1558 employees that fall into this category [in
of contract sections] 20.0, 37.0 and any other articles that may apply.
(. . . corrective action desired): Retroactive
of compensation step wages for affected
Local 1558 employees starting November 1, 1997 to present.
On June 12, 1998, Ridgely issued a written first step denial of
the June 9
in pertinent part, "We have not changed our past practice in compensation step adjustments.
grievance is not timely. Your requested settlement is respectfully denied."
On June 22, 1998, the Employer and Union met for a second step meeting
June 9 grievance, after which Ridgely again denied it in writing on the same bases.
wrote Ridgely on June 23, advised him that the Union found his decision regarding the June
totally unacceptable. We are therefore appealing this grievance to
Arbitration; according to the
terms of the labor agreement, Article 8.4.
The Executive Board and the Bargaining
disagree with the Employer that this
grievance is not timely. As in past, with all the grievances filed, this dispute falls into the
progression of the contract.
Please contact Larry Rodenstein at
40 for details regarding the arbitrator.
As noted in the timeline, however, the grievance that the
to its request for
WERC grievance arbitration services was the grievance dated May 19, 1998.
Because both the May 19 and June 19 grievances assert the same basic claim, and the
Arbitrator has formulated the issue to address that claim regardless of any uncertainty about
of the grievances was intended to be submitted to arbitration.
Additional background information is set forth in the positions of the parties and the
POSITIONS OF THE PARTIES
The Employer's Initial Brief
The grievance in this matter should be denied. The parties never intended in their
for the new agreement that any wage adjustments provided for in the 1994-97 Agreement
implemented as of November 1, 1997. Rather, the parties' resolved this issue through their
agreement, as specified in the Tentative Agreement. This position is supported by the
practice, the language of the Tentative Agreement, and the conduct of the Union in
original grievance. Further, the Union's grievance is untimely since it was filed six months
November 1, 1997 wage adjustment arguably should have been made. Finally, the Union is
from arguing that a wage adjustment should have been made on November 1, 1997, because
Union permitted the contract to be ratified with full knowledge of the Employer's contrary
understanding of the Tentative Agreement.
With regard to past practice, the record shows that parties have bargained past the
expiration dates of two prior agreements, the 1988-91 and 1993-94 agreements. Both of
agreements contained language providing that wage adjustments shall occur on November 1
year and that the parties shall operate temporarily under the terms and provisions of the
agreement "until a new agreement is entered into, at which time such new agreement shall be
as the parties may agree." No wage rate changes were in fact implemented on the
November 1 date
following those contracts' expirations. Rather, whatever wage rate changes were agreed to
parties in each of those negotiations were implemented retroactive to November 1. Thus,
there is a
past practice of not automatically making wage rate changes on November 1.
However, unlike the settlements reached after those two agreements expired, in the
Tentative Agreement, there was no agreement to make wage rate adjustments retroactive to
November 1, 1997. Rather, the parties agreed that employes would receive a 1.5% lump
payment based upon wages that had been actually earned between November 1, 1997 and
1998, and another 1.5% wage increase effective May 18, 1998.
The fact that the Employer made changes to employe benefits after October 31, 1997
prior to the Tentative Agreement on May 8, 1998, such as crediting employes with annual
personal leave and sick leave, is entirely consistent with the Employer's position and past
Employes did not stop accruing benefits after October 31, 1997, just as employes did not
wages after that date. The past practice is that there was no change in the amount of wages
accruals after October 31, 1997, or after other contracts expired, pending negotiations.
In the negotiations which resulted in the 1998 Tentative Agreement, the parties
wage changes in a very special way. They agreed that the timing of compensation step
would change, i.e., there would be fewer compensation steps than there had been in prior
bargaining agreements. They also agreed that the wage adjustment for the period from
1, 1997 through May 18, 1998 was a retroactive lump sum payment.
The Union's argument that the Employer is obligated to make wage adjustments as of
November 1, 1997 is flawed because the Tentative Agreement specifies a benefit based upon
earnings" from November 1, 1997 through May 18, 1998. "Actual earnings" was a specific
to wages that employes had earned at the time the agreement was entered into, not a
wage rate. If any group of employes was to have some increased benefit going back to
1, 1997, that increased benefit would have been identified in the Tentative Agreement.
With regard to the Union's conduct, Grievant Kluver knew the Employer's position
retroactive November 1, 1997 wage adjustment as early as May 11, 1998. A grievance was
May 19, 1998, and the Employer and Union discussed the issue on May 21, 1998, prior to
ratification meeting in Madison. After the Union completed its ratification process, the
dropped the grievance on May, 28, 1998. Especially in those circumstances, the May 19
as it relates to wage adjustments that arguably should have taken place back on November 1,
is untimely under the terms of the Agreement.
The June 9 grievance is even more untimely. It was filed not only more than ten
after Grievant and another unit employe were told of the Employer's position on May 11,
also more than ten working days after the May 19 grievance asserting the same claim was
Timeliness is important not as a technical defense, but because the Union, through its
connection with ratification of the contract and in dropping the original grievance,
agreement that there was no November 1, 1997 wage adjustment.
The Tentative Agreement was negotiated so as to insure that all unit employes
benefit for having worked without a wage increase after October 31, 1997. This was an
board lump sum payment based upon what employes had earned from November, 1997 to
1998. Effective May 18, 1998, and according to the Tentative Agreement, all
unit employes received the greater of the new wage rate structure or 1.5% to be added
"then existing wage rate." The Union did not misunderstand the Tentative Agreement.
understood the Employer's interpretation at the time that the Madison employes ratified the
Agreement and, thereafter, dropped the grievance.
Therefore, the grievance must be denied.
The Union's Brief
The grievance in this matter should be sustained.
The 1994-97 Agreement, like the parties' prior agreements, has an evergreen clause,
parties shall operate under the terms of the expired agreement until a new agreement is
The 1997-98 negotiations were the longest and most difficult negotiations in which
participated. Several newspapers, radio and television media outlets reported that the State
proposed to boycott donations to the blood supply if a satisfactory result was not achieved in
negotiations. Finally, without implementing this boycott, the parties reached a Tentative
in May of 1998.
When the parties entered into their Tentative Agreement, a new wage rate schedule
negotiated which provided for different annual step increases from the 1994-97 Agreement.
schedule was effective May 18, 1998.
Subsequent to the ratification process, the Union learned that the Employer was
eligible employes their annual step movement (effective November 1 of each year). It is
that wage step progression has historically occurred only once a year (not on the employe's
anniversary date) on November 1, the first day of each new contract year. On occasions in
those step increases have been paid retroactively. Thus, the practice of granting eligible
wage rate step advancement retroactive to November 1 is a well accepted past practice
relied upon by the parties. The central difference in the instant situation is that the
not concluded this time until May of the following year. However, there was no dispute
retroactivity of the November 1, 1997 step increase raised at the bargaining table.
Although the Employer has failed to pay employes their step rate increases on
1997, it has recognized the Agreement's evergreen clause in other areas. For example, the
advanced Grievant annual leave and personal leave between December of 1997 and January
This demonstrates that the Employer recognizes the authority of the Agreement's evergreen
and the Employer's obligation to comply with it. Moreover, the Employer has granted other
employes similar non-wage benefits during this same period preceding the settlement in May
Arbitral and judicial opinion supports the proposition that contract terms function
hiatus unless an explicit waiver or clear negation is acknowledged. Citing, City of Canton,
105 LA 141 (Lalka, 1995)(City's failure to pay step increases during contract hiatus held
and Nolde Brothers, Inc. v. Bakery Workers, 430 U.S. 243, 94 LRRM 2753
initiated after contract expiration regarding denial of contractual severance pay benefits held
arbitrable). Contracts are living documents which do not go into hibernation during periods
negotiations, especially where a contract includes an evergreen provision. Citing,
Paper, 101 LA 278 (Duff, 1993); City of Cleveland, 103 LA 534 (Miller, 1994) (employe
during hiatus under 90 day probationary period and fired during fourth month of employment
protected by just cause notwithstanding successor agreement change to 120 day probationary
Ryan-Walsh Stevedoring, 89 LA 831 (Baroni, 1987) (employer required to pay for hiatus
at expired contract rates rather than lower rates in new contract.)
In this case, the record is devoid of any clear negation to a continuation of the
terms. The evergreen clause serves to maintain and incorporate the terms of the Agreement
throughout the period of negotiation, which occurred after the Agreement's expiration, until a
successor is incorporated. The Tentative Agreement's new schedule does not obviate the
obligation to advance eligible individuals on the 1994-97 schedule retroactive to November 1,
The Agreement's evergreen clause creates a presumption for the maintenance of the status
that the Employer provide for annual step increases on November 1 of each year. There has
clear and longstanding past practice that has been relied upon for annual step movement.
no waiver, either explicit or implicit, of this past practice within the record.
The parties' evergreen clause can only be terminated if the Union notifies the
Employer of its
intent to strike and/or picket (Article 34). Since no such notice was provided, and since
there is no
evidence that this clause was terminated, the Employer is obligated to provide step movement
same manner that it provides new annual vacation accruals. The Employer is attempting to
movement following nominal contract expiration despite the parties' having agreed to it in
In conclusion, Grievant, and all other affected eligible employes, are entitled to
annual step movement, effective November 1, 1997. The Employer's position would
right conferred by the terms of the Agreement. Therefore, the grievance should be sustained
eligible employes should be advanced, pursuant to the terms of the Agreement's Appendix A,
November 1, 1997.
Employer's Reply Brief
The Union's representation that "there was no dispute about the retroactivity of the
1, step increase raised at the bargaining table" is not fully accurate. During bargaining, the
did not propose, and the Union did not request, any step increase
retroactive to November 1, 1997. The evergreen clause must not make the retroactive
automatic. If it had been automatic, such an increase would have been made in November of
or the Union would have grieved it in November of 1997. Although both parties must plead
to not having specifically addressed this retroactivity issue, it is clear that the parties
in paragraph 1(b) of the Tentative Agreement and that the 1994-97 Agreement provides that
agreement shall be effective as the parties may agree" (Agreement, Article 37).
The absence of any reference in the Tentative Agreement to an agreement on
November 1, 1997 step increase speaks volumes, particularly in light of the Union's
knowledge of the Employer's interpretation of the Tentative Agreement and the Union's
of the first grievance.
Contrary to the Union's argument, it is not true that the Union first learned that the
was denying the November 1, 1997 step increases after the Union's ratification of the
Agreement. At least two affected employes discussed this issue with management on May
and were told of the Employer's position on that date. The first grievance was filed on May
The unit employes, and presumably the Union, had known since November of 1997 that no
adjustment to compensation had been made. The Union's spokesperson and the Employer's
Resources Manager talked about the grievance on May 23 before the Madison ratification
and the Employer was assured that the issue would be clarified at that meeting. After
grievance was withdrawn.
The authorities cited in the Union's brief do not resolve the issue before the
Employer does not disagree that had there been no new agreement, then the November 1,
adjustments would have been required. But for past practice, and perhaps notwithstanding
practice, the Union could have insisted that these adjustments are required. However, in
the parties negotiated a new agreement altering the Appendix A Compensation Steps.
wage adjustments were negotiated based on "actual earnings" from November 1, 1997 to
1998. New wage rates were based upon where employes fit on the grid negotiated as of
1998. All issues were wrapped up in those negotiations.
The real issue in this case is whether the parties did not in fact intend to address all
issues/step increases occurring after October 31, 1997. The issue of retroactivity and pay
from November 1, 1997 through the ratification of the new contract was addressed by the
agreeing to have a retroactive wage adjustment for all employes. The grievance is not only
but it also seeks to negotiate a benefit not secured at the bargaining table.
Reading the 1994-97 Agreement alone supports the Union's claim in this case. That
Agreement contains an evergreen clause which continues in effect the Appendix A wage rate
providing for step increases for eligible employes and the language of Art. 20 providing that
"employees. . . shall receive an adjustment step each November 1 [thereafter] based upon
seniority. . . ."
However, the Agreement evergreen clause provides only that "the parties shall
temporarily under the terms and provisions of [the 1994-97] Agreement until a
entered into, at which time such new Agreement shall be effective as the parties may
The parties' Tentative Agreement reached on May 8, 1998, provides that a modified
structure would be "implemented effective May 18, 1998." The three attached wage
respectively entitled "Schedule Effective May . . . 1998", "Schedule Effective November
"Schedule Effective November 1999." The Tentative Agreement specifically addresses
pay by providing for a "1.5% Retro-wage adjustment from November 1, 1997 through May
based on actual earnings."
The parties' use of the term "actual" in the Tentative Agreement language quoted
at least consistent with an intention to include only earnings that were in fact received during
"November 1, 1997 through May 18, 1998" period, and to exclude earnings (such as step
that arguably should have been received during that period but were not.
More importantly, the parties' express inclusion of Tentative Agreement language
the subject of retroactive wages payable under the settlement provides a strong indication that
intended to exclude any other form of retroactive wage payments that would otherwise have
Especially so where, as of the time the parties entered into the Tentative Agreement:
1994-97 Agreement wage and evergreen clause provisions on their face required the
have made such payments effective on November 1, 1997; the Employer had not, in fact,
such payments; the affected employes knew from their paychecks that they had not received
payments; no grievance challenging that nonpayment had been filed; and Secs. 8.1 and 8.5 of
1994-97 Agreement would, at least on their face, have time barred any such grievance at
least to the
extent of limiting retroactive relief to the 10 working days prior to the date on which such a
The parties' history of not implementing November 1 step increases until after
agreement on a successor contract does not persuasively support a different interpretation of
Tentative Agreement. The record shows that, notwithstanding the evergreen clause, the
historically not automatically made any wage rate changes on November 1 when
negotiations for a new agreement continued beyond that date. Instead, it appears that
on the two
such occasions of record, the parties waited until the successors to the 1988-91 and 1993-94
agreements were settled, and then the parties implemented whatever retroactive changes were
provided for in the new agreements. However, unlike the 1994-97 Agreement, the May 8,
Tentative Agreement did not include a wage schedule effective on the preceding November
Rather, the only Tentative Agreement provision concerning retroactive wage adjustments
for a 1.5% retro-wage adjustment for all employes covering the retroactive period, and the
Tentative Agreement wage rate schedule takes effect in May of 1998.
Thus, it appears that the retroactive wages paid following expiration of the 1988-91
agreements were paid pursuant to and in accordance with the terms of the new contracts
between the parties at those times, and not on the strength of the evergreen clause in the
agreements involved. In the instant case, the new contract reached is materially different
1994-97 Agreement, warranting the materially different retroactive payments made by the
in this case.
The Union's conduct also supports the Employer's position in this case. It is not
the Union knew at the time it agreed to the Tentative Agreement language on May 8, 1998
Grievant and others similarly situated had not in fact received step increases on and after
1, 1997. However, it is clear that the Union was aware of that fact before the Union
membership ratification process. Specifically, Grievant and another bargaining unit member
Ridgely on May 11, 1998, inquired about November 1, 1997 wage adjustments, and were
the Employer took the position that there would be "no 11/01/97 adjustments, all wage
having been negotiated in the new contract." After the Union filed a grievance on the
subject on May
19, 1998, Union representative Larry Rodenstein had a telephone conversation with Ridgely
regarding that grievance during which Rodenstein told Ridgely that the issue would be
clarified at the
Madison ratification meeting scheduled for later that day. It is undisputed that after Ridgely
the grievance by letter to Union Local President Schimming on May 26, 1998, Schimming
advised Ridgely on May 28, 1998 that the grievance was dropped. Only after the Employer
retroactive payments on June 5, 1998 in accordance with its previously-stated understanding
retroactive pay requirements of the new agreement, did Schimming file the June 9 grievance
reasserting the claim that the affected employes were also entitled to retroactive step
increases as of
November 1, 1997.
In those circumstances, the Union, by its conduct, confirmed that the Union shared
Employer's previously-stated position that the new agreement limited the Employer's
obligations to payments that did not include retroactive step increases for eligible employes
November 1, 1997. It was reasonable for the Employer to rely on the Union's
conduct as indications that the Union shared the Employer's previously-stated understanding
new agreement relieved the Employer of any obligation to pay the retroactive step increases
at issue in
this case. After having benefited from the
Employer's implementation in reliance on the Union's conduct, the Union cannot now be
to reassert and prevail on a different interpretation of the new agreement.
The Arbitrator therefore concludes that the Employer's Agreement evergreen clause
to pay step increases effective November 1, 1997 was negated by the terms of the Tentative
Agreement and by the Union's conduct described above.
The authorities cited by the Union do not persuasively support a contrary conclusion.
of Canton, the arbitrator noted that the employer had expressly assured the Union at the
table that employes would not lose any benefits under the new agreement, and in Ryan-Walsh
Stevedoring, the arbitrator noted that the employer had expressly assured the employes at the
up that the work they were being asked to perform would be paid at the (higher) old contract
in this case there is no evidence that the employer gave any such assurances. In International
Paper, the arbitrator upheld the employer's retroactive application of concessions contained
new agreement, rejecting the union's argument that the employer had waived its right to do
maintaining the status quo during the hiatus. In City of Cleveland, the new agreement
clause made it "effective upon ratification" except for items (not including the probationary
change) that were expressly given retroactive effect; in this case paragraph 1(b) of the
Agreement expressly provides for retroactive wage adjustments in the form of specified
all employes. In Nolde Brothers, the Employer had refused to arbitrate a dispute about
pay benefit provisions of the expired agreement where there was no successor agreement; in
instant case the Employer has not refused to arbitrate, and there is a successor agreement
addressing the subject of retroactive wage adjustments.
For those reasons, the Arbitrator concludes that Wendy Kluver, and all those
situated, are not entitled to retroactive wage rate schedule step advancement effective
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
of the Arbitrator on the Issues noted above that
Wendy Kluver, and all those similarly situated, are not
to a remedy for the Employer's
failure to grant them retroactive wage rate schedule step advancement effective November 1,
Dated at Shorewood, Wisconsin, this 2nd day of
Marshall L. Gratz, Arbitrator