BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OAK CREEK WATER AND
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS LOCAL 2150
(Grievance of Linda Quandt)
Ms. Jill M. Hartley, Previant, Goldberg, Uelmen, Gratz, Miller
& Brueggeman, S.C., Attorneys at Law, on behalf of IBEW, Local 2150.
Mr. Robert H. Buikema, Davis & Kuelthau, S.C., Attorneys at
Law, on behalf of Oak Creek Water and Sewer Utility.
The International Brotherhood of Electrical Workers, Local 2150, hereinafter the
the Oak Creek Water & Sewer Utility, hereinafter the Utility, jointly requested that the
Employment Relations Commission provide a staff panel from which to select an arbitrator in
instant grievance dispute, pursuant to the terms of the parties' collective bargaining
undersigned, David E. Shaw, was selected by the parties, and thereupon designated by the
Commission to arbitrate the dispute. A hearing was held before the undersigned on
1998 in Oak Creek, Wisconsin and the proceedings were transcribed. The parties submitted
by February 3, 1999, and reply briefs were submitted by February 19. Based upon the
the arguments of the parties, the undersigned makes and issues the following Award.
The parties stipulated there are no procedural issues and to the following statement of
Did the Oak Creek Water & Sewer Utility violate the
collective bargaining agreement when it
denied the Grievant's request for vacation time between December 25 and December 31,
If so, what is the appropriate remedy?
The following provisions of the parties' 1998-2000 Collective Bargaining Agreement
Employee Handbook have been cited:
Section 1. This agreement is
made and entered into at the Oak Creek Water and Sewer Utility
Commission pursuant to the provisions of 111.70, Wis. Statutes, by and between the Oak
Water and Sewer Utility Commission (or its municipal successor), hereinafter referred to as
"Commission" and Local 2150, International Brotherhood of Electrical Workers affiliated
AFL-CIO, hereinafter referred to as the "Union."
The employer recognizes the Union as the
exclusive bargaining agent for all regular full-time and
regular part-time water, sewer, utility, and secretarial employees, of the Oak Creek Water
Utility, excluding all supervisory, managerial, executive, confidential, seasonal, casual,
and professional employees, as their representative; . . .
. . .
The Commission possesses the sole right to operate the Water
& Sewer Utility and all
management rights repose in it. These rights include, but are not limited to, the following:
. . .
(G) To maintain efficiency of operations by
determining the methods and means and the personnel
by which such operations are conducted.
. . .
(K) To determine the kinds and amounts of services to
be performed as pertains to operations,
and the number and kind of classifications to perform such services.
. . .
Loss of Seniority. Seniority shall be broken if an
. . .
(9) in the event an employee in the bargaining
unit is transferred from his/her position
with the Commission, but outside the bargaining unit, he/she shall retain the seniority
he/she had accumulated to the time of such transfer for a period of one (1) year. If
the employee returns to the bargaining unit within the time period set forth above,
he/she shall transfer to the same classification and type of work as when he/she left
the bargaining unit. If the employee returns to the bargaining unit after such period,
he/she shall forfeit his/her seniority in the bargaining unit.
. . .
5. Decision of the
Arbitrator: The decision of the Arbitrator shall be limited to the
subject matter of the grievance and shall be restricted solely to interpretation of the
contract in the area where
the alleged breach occurred. The Arbitrator shall not
modify, add to or delete from
the express terms of the Agreement.
. . .
. . .
Choice of Vacation Period. Because of the nature of
Utility work, it is necessary
to limit the number of employees on vacation at the same time. The employee with the
seniority within a Utility department shall be given his or her choice of vacation, limited to
weeks on the first pick, taken in one (1) week increments. After all employees have chosen
round of vacation, the remainder of vacation days shall again be granted on the basis of
limited to two (2) week increments in all future rounds. . .
One day of vacation equals eight (8) hours. The employer shall
determine the number of
employees on vacation at any given time.
Because of the nature of the Utility's work, it is necessary to
limit the number of employees
on vacation at the same time. The employee with the greatest seniority within a Utility
shall be given his or her choice of vacation, limited to two (2) weeks on the first pick, taken
(1) week minimum increments. After all employees have chosen their first round of
remainder of vacation days shall again be granted on the basis of seniority, limited to two (2)
increments in all future rounds.
RELATIONSHIP TO UNION
To the extent that provisions of this Handbook conflict with
provisions of the Union contract,
the Union contract shall control.
Linda Quandt, the Grievant, has been employed by the Utility since May 1982 and is
member of the bargaining unit represented by the Union. Since December 1, 1997 she has
position of Utility Accountant. Prior to that time she was employed as a Utility Secretary.
Grievant's direct supervisor is Steven Yttri, the Utility Finance Director. There are two
in her department: Kathy Esselman, the Confidential Secretary, who has worked for the
September 1976, and Diane Skenandore, the Utility Clerk, who has been employed since
1987. Ms. Skenandore is also a member of the bargaining unit, while Ms. Esselman is not.
went to part-time in 1991 and then was again made full-time the beginning of 1998.
Pursuant to Article 15 of the labor agreement, and the Utility's Employee Handbook,
uses identical language, employees are to turn in requests for vacation on or before March 15
year, limited to two weeks on the first pick. Vacation times are to be allotted according to
within the department and the vacation schedule is to be posted by April 1.
Since 1993, the Grievant had taken vacation on December 21-23 and 27-29. The
is responsible for payroll and the billing, however, Skenandore is also cross-trained in the
can fill in for the Grievant in her absence. The Grievant also answers the phone and works
customers when Skenandore is unavailable or absent. When Esselman went to part-time the
began utilizing seasonal help to cover the December-January holiday period. Esselman went
to full-time in January of 1998 and the Utility discontinued the use of seasonal help for the
and the December-January holidays.
On March 10, 1998, the Grievant submitted her vacation form requesting vacation on
December 21, 22 and 23, as well as December 28, 29 and 30. Combined with weekends
off for the Christmas and New Year's holidays, this would have resulted in her being gone
December 19 through January 3. Approximately three weeks later, Yttri approached the
and informed her that Esselman had also asked for time off on December 28, 29 and 30 and,
Esselman had more seniority, she would receive those vacation days, and the Grievant would
her requested days on December 21-23. The Grievant disputed this, and argued that, under
agreement, her seniority rights superceded Esselman's, since Esselman was not in the
Yttri disagreed and further informed the Grievant that she should resubmit a request form
her alternative selection by the next day, which she did under protest.
On April 13, 1998, the Grievant filed a grievance over the denial of her requested
days and asked that they be reinstated. The grievance was processed through the grievance
procedure and the parties, being unable to resolve their dispute, proceeded to arbitration
POSITIONS OF THE PARTIES
The Union asserts that, under the labor agreement, the Grievant has the greatest
the department and, therefore, was entitled to her choice of vacation days over Esselman.
as defined in Article 9 of the Agreement, does not apply to non-unit employees and, in
specifically states that any employee who transfers to a non-unit position will lose any
seniority after one year. Therefore, Esselman, a non-unit employee, cannot be considered to
seniority over the Grievant. Citng, Kansas City, Kansas, 100 LA 534 (Berger, 1993). In
considering the bidding and bumping rights of non-unit employees the arbitrator in that case
absent agreement or clear evidence to the contrary, any seniority rights provided by the
can only apply to unit members. In this case, the agreement clearly excludes non-unit
its provisions. Therefore, Esselman had no entitlement to preference in vacation selection
While the Utility's Employee Handbook has identical vacation selection language, to
extent that its application would conflict with the effect of the labor agreement, the
controls. Under the labor agreement, the Grievant, as the senior unit employe, is entitled to
preference. The interpretation of the handbook urged by the Utility would give preference to
Esselman, creating a conflict between the handbook and the labor agreement. The handbook,
however, specifically states that "To the extent that provisions of this Handbook conflict with
provisions of the Union contract, the Union contract shall control." Thus, according to the
the handbook itself, this apparent conflict must be resolved in favor of the Grievant.
The Union also cites City of Marshalltown, 101 LA 251 (Mikrut, 1993), wherein the
arbitrator held that it violated the collective bargaining agreement and diminished unit
rights to provide non-unit captains a benefit identical to one provided to the unit firefighters
days) under the terms of the contract, and then give the captains preference in date selection
unit employes. This case is analogous, in that non-unit employes are being given preference
employes in exercise of rights bargained into the labor contract. As in Marshalltown, this
violates the agreement and the Utility should be required to cease and desist from this
give preference in vacation selection to unit employes.
The Union further asserts that, even assuming the Utility was entitled to grant
vacation request, it still should have granted the Grievant's request, because it failed to
show a need
to limit the number of employes off work in the department at this time to one. Past history
the department shows that it has not been uncommon for two employes to be gone, leaving
to staff the office for periods of time without creating apparent problems for the Utility. In
Grievant typically took the week between Christmas and New Year's as vacation when
part-time, negating the Utility's argued need for more staff at that time of year.
Esselman and the Grievant do different jobs and much of what the Grievant does Esselman is
unqualified to do. Therefore, there is no merit to the argument that both of these employes
be gone at one time.
In its reply brief, the Union asserts the Utility misstates the Union's position as to the
definition of an "employe" in the agreement. The Union has consistently taken the position
reference to "employe" in the agreement applies only to bargaining unit employes, not all
The clear language of Article 15, Sec. 4, of the agreement grants the employe with the most
in the department first choice in selecting vacation. It is well established that clear and
contract language must be enforced as written.
Contrary to the Utility's claim, the two clauses of Article 15, Sec. 4, do not conflict;
they are separate and distinct and independent of one another. The conflict is instead
agreement and the Employe Handbook. While the vacation selection language in those
are identical, taken in the context of this grievance, the two documents are clearly in
conflict. As in
this case, the employe entitled to first choice under the agreement and the employe entitled to
choice under the handbook may be two different individuals, thus creating a conflict.
the handbook, the agreement controls in that case. Further, the argument that it has a
policy of allowing only one employe in this department off at this time of the year, does not
the fact that the Utility is obligated to grant the Grievant's request based upon her seniority.
Regardless of the Utility's ability to determine the number of employes on vacation at
same time, the clear language of the agreement gives the Grievant first choice in selecting
As the Utility has the practice of permitting at least one employe to take vacation over the
that slot must be filled by the most senior bargaining unit member. The Utility may not use
to prescribe the number of employes on vacation at one time to prohibit all bargaining unit
from taking vacation while allowing a non-unit employe to take vacation at that time.
The Union also asserts that the Utility's reliance upon Armstrong is misplaced, as
did not involve a conflicting employe handbook that acknowledged the labor agreement
case of a conflict.
Last, the Union disputes the claim that accepting its position voids the contract
giving the Utility the right to determine the number of employes on vacation at one time.
most senior bargaining unit member first choice in selecting vacation does not conflict with
practice of only allowing one employe on vacation at one time.
For all these reasons, the Utility should be ordered to cease and desist from this
grant vacation selection preference to bargaining unit employes in the future.
The Utility asserts that the clear and unambigous language of Article 4, Management
Employe Rights, and Article 15, Vacation, of the agreement gives it the unfettered right to
staffing needs and allocate vacation time. The seniority language in the agreement is limited
right and there is no language in the agreement that requires the Utility to justify its decision,
though it has done so in this case. Even the Grievant, a Union Steward, admits the Utility
right to determine the number of employes who may take vacation at a given time or to
employe from taking vacation at a time requested.
The Utility also asserts that the vacation selection clauses in the agreement and
Handbook are not in conflict and do not mandate that bargaining unit employes should get
over non-unit employes in vacation selection. The agreement does not refer to non-unit
at all and specifically excludes them from the definition of "employees" contained in the
clause. A labor agreement only applies to employes covered by it. Flex Lab, Inc., 103 LA
(1994). Here, the Utility has the right to limit the number of bargaining unit members on
Yttri decided there were no slots available for unit employes the last week in December,
based on his
determination that two employes must work as scheduled and the fact that one employe was
scheduled to be off that week. There were sound business reasons for the decision. Billings
be processed and mailed at the end of each month. The Grievant is responsible for billings,
another employe has been cross-trained to assist. The last half of December is unique in that
are four holidays out of the ten work days. In 1997, the Utility attempted to operate with
employe scheduled to work the last two weeks in December and, in spite of incurring
did not get the billing timely processed. Thus, Yttri determined that in 1998 two employes
scheduled to work each work day in December. As both the Grievant and Esselman
of the same weeks off, Esselman's request was granted and the Grievant received her
vacation for the preceding week, but not for December 28-30.
In Armstrong Cork Co., 37 LA 21 (1961), under similar but more restrictive
here, the employer denied a union employe's vacation preference on the grounds that
employes had already selected the week for vacation. The arbitrator found that the
the company the clear right to designate vacation times for employes
and, conversely, that the agreement gave no employe the right to select vacation free
control. The arbitrator found no conflict in the "seniority" provision, since supervisory
were not in the bargaining unit. Therefore, whatever basis the employer used for designating
supervisors' vacation was outside the union's control.
Here, under the agreement, only if the Utility decides there is a slot for a unit
the seniority provision come into play. As in Armstrong, Yttri determined that he would
non-unit employe to be on vacation. Since he only allows one vacation absence at any given
that meant there would be no slots available for the unit employes a determination
which even the
Grievant, a Union steward, conceded was within the Utility's contractual rights. (Tr. at p.
request that the Utility be required to always grant the vacation selection of the most senior
bargaining unit employe in a department would void the contract language that guarantees the
that right and is, therefore, contrary to the Arbitrator's authority.
Even if the definition of "employe" and the application of seniority were construed
enough to encompass both unit and non-unit personnel, the Utility should still prevail. Both
agreement and the handbook base vacation preference on department seniority, and Esselman
more seniority than the Grievant. The Union must "choose its poison". Either seniority and
definition of "employee" apply only to those in the bargaining unit, in which case they are
on those outside the unit, or they apply Utility-wide, in which case Esselman has the most
In either case, the grievance should be dismissed.
The Utility also disputes the existence of any past practice of allowing the Grievant
in the last two weeks of December, such that she is now entitled to it. While she was
vacation during these weeks between 1993 and 1997, the elements necessary to establish a
past practice do not exist, since the issue of competing vacation requests was never raised
Further, changed circumstances brought about by an increased workload and a policy of no
employing seasonal help, required a departure from any such practice, making it moot.
Corp., 76 LA 903 (Duff, 1981). Even if a practice existed, it is superceded by clear and
contract language, which gives the Utility the right to determine how many employes may be
vacation at a given time.
In its reply brief, the Utility disputes what it feels are erroneous statements in the
regarding the procedure for approving vacation requests, an inference that there was a
policy" of allowing only one employe to be on vacation at any time, the assertion that the
in December was no different than any other month, and the assertion that the office has
in the past with only one employe.
The Utility also asserts that the Union has selected provisions of the agreement that
position and disregarded the rest. It attempted to use the seniority clause in the agreement to
the forfeiture of the language limiting a unit employe's right to select vacation. While the
agrees the seniority clause and vacation clause in the agreement recognize seniority and are
to employes covered by the agreement, that exclusivity applies equally to the limiting
provides that the Utility may determine the number of employes on vacation at any given
Union had to ignore that provision because there
is no way to reconcile it with the Union's interpretation, which would render that
It is a cardinal principle of contract interpretation that agreements are to be construed
whole. Where possible, effect must be given to all of the language agreed to by
the parties. Article
15, Sec. 4, of the agreement expressly retains management's right to limit the number of unit
employes on vacation at one time. Once the number of bargaining unit vacation slots is
the unit employes select by seniority. This interpretation gives effect to the entire
Union's interpretation that management may establish the number of bargaining unit
vacation, provided the reason for the decision is not the absence of a non-unit employe, is
consistent with the agreement's overall meaning and purpose.
Finally, the Utility asserts the Union's reliance upon Marshalltown is misplaced. The
contract in that case set forth guidelines for the selection of "Kelly days" each month and
for the exact number of bargaining unit members who could be off each day, imposing
the employer if the correct number were not allowed to be off. The employer changed the
in which Captains' comparable day requests were considered allowing the Captain on the
have first pick in the work cycle, regardless of his seniority. Previously, Captains had
selected on the
same basis of any other crew member relative seniority. The arbitrator granted the
because the employer did not retain language that would allow it to reserve selection slots for
Captains. He found that the change reduced the rights of bargaining unit members because
a contractually guaranteed number of "Kelly day" slots. Here, there is no
vacation slot. The agreement gives management the exclusive right to establish the number
Thus, the employes never had a right in that regard which could be diminished.
For all the above stated reasons, the Utility concludes the grievance should be denied.
The Union has characterized this case as being one about seniority and the primacy of
collective bargaining agreement over and against the Employe Handbook. Thus, it argues in
of vacation selection, seniority only applies to bargaining unit members and,
therefore, since the contract takes precedence over the handbook, unit employes always
preference over non-unit employes in vacation selection. The argument is not persuasive. In
instant case, there is no dispute that non-unit employes do not have seniority within the
unit. Rather the issue centers on the effect, if any, of seniority language contained in the
agreement on non-unit employes, and the authority of the Utility to regulate vacations
its staffing needs, as well as the reasonable exercise of that authority.
The language of Article 15, Section 4 of the agreement, which is identical to
handbook, clearly ties vacation preference to seniority. Nevertheless, the agreement does not
to define the rights of unit employes against those of non-unit employes, therefore the
only be said to apply to the relative rights of employes in the bargaining unit. The Union is
in asserting that, absent clear language, non-unit employes cannot acquire seniority rights
employes with respect to rights contained in the agreement, however, the converse is also
this case, the rights of non-unit employes arise outside the labor agreement and are allocated
reference to it. Under the Employe Handbook, non-unit employes also select vacation by
however, that is only as to other non-unit employes and there is no "conflict" with the labor
agreement to be resolved by the clause giving supremacy to the agreement. That clause
to the rights of unit employes under the agreement, i.e., they are determined by the
than the handbook, when there is a conflict. Thus, while the Grievant has seniority among
employes in her department, this status does not automatically guarantee her priority over the
The issue then becomes whether the Utility has authority to limit the vacation
bargaining unit employes. Article 4 of the agreement generally reserves to the Utility the
determine schedules of work and the personnel necessary to conduct its operations. More to
point, Article 15, Section 4, the vacation selection clause, not only points up the necessity of
the number of employes on vacation at any time, but also expressly reserves the right to
determination exclusively to the Utility. This prerogative is not contested by either the
Union or the
Grievant. Thus, the question of who is entitled to vacation at any given time only arises
Utility has decided whether vacation may be taken, and by how many employes.
Without agreeing that the Utility's rights in this regard are unfettered, as it claims, it
appear from the record that the Utility's decision to limit vacation to one employe at a given
the last two weeks of December was justified. The Utility is already closed for four days
period for holidays, notwithstanding the fact that there are extra end-of-the-month and
end-of-the-year tasks which must be performed. While it is true that vacation has been
granted to the Grievant
in the past at this time of year, circumstances have changed.
Despite there being only one other full-time employe, it was necessary at those times
for the Utility
to hire seasonal help to cover the shortage, which it has since determined not to do in the
Also, the significant increase in the Utility's customer base in recent years has increased the
from what it was in the past. Therefore, the Utility's decision to limit the number of
vacation at this time of the year is reasonable under the circumstances.
The Union's argument that the two employes have different jobs, so that no
problem would arise if both were gone, is not persuasive. Some tasks, such as answering
dealing with the public, and posting the mail could be done by any of the employes. If two
three were gone, and the third had to leave for any reason, these things would not get done.
if, as the Union maintains, the other unit employe, Diane Skenandore, is the only other
capable of covering for the Grievant, the same problem arises if the Grievant is absent at this
of the year only one employe is on hand who can do the requisite tasks and if she
becomes ill or has
an emergency, the Utility has no coverage. As it is the processing of customer billings that
is a large
part of the work at this time, and that is primarily the work of the Grievant and Skenandore,
Esselman to be off would appear to have the least impact on completing that work.
It was also not unreasonable for the Utility to divide vacation time between the two
as it did. The Grievant, as was her habit, asked for both of the last two weeks of December
vacation, however, Esselman also asked for the last week in December. Faced with these
requests, the Utility granted the Grievant her first requested week, prior to Christmas, and
other to Esselman. This was a reasonable attempt to accommodate both employes, while still
addressing the Utility's staffing needs at this time of year. This also distinguishes this case
of Marshalltown, cited by the Union, as there the employer had not only altered a practice,
gave the non-unit employes first pick in selecting Kelly days off in every instance.
For the foregoing reasons, it is concluded that the Oak Creek Water & Sewer
Utility did not
violate the collective bargaining agreement when it denied the Grievant's request for vacation
between December 25 and December 31, 1998.
Based upon the above and foregoing, the evidence and the arguments of the parties,
undersigned makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 12th day of July, 1999.
David E. Shaw, Arbitrator