BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ONEIDA COUNTY HIGHWAY EMPLOYEES
LOCAL 79, AFSCME, AFL-CIO
(Training Program Grievance)
Mr. David A. Campshure, Staff Representative, Wisconsin
Council 40, on behalf of the Union.
O Brien, Anderson, Burgy, Garbowicz and Brown, L.L.P., by Mr. John L.
O Brien, on behalf of the County.
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Rhinelander, Wisconsin, on February 12, 1999. The hearing was not transcribed and the
there agreed that I should retain my jurisdiction if the grievances
are sustained. The parties subsequently filed briefs and reply briefs that were received
by May 14,
1999. Based upon the entire record and the arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issues, I have framed them as
1. Whether the County violated the October 27,
1994, Settlement Agreement when it failed to
train certain employes on the backhoe and, if so, what is the appropriate remedy?
2. Whether the County violated Article 5 of the
contract when it failed to award the Equipment
Operator II position to the most senior bidder and, if so, what is the appropriate remedy?
The underlying dispute here dates back to the October 27, 1994, Settlement
(herein "Settlement Agreement"), between the parties, (Joint Exhibit 4), that states in
. . .
1. The two most senior grievants will be trained for
16 hours off the pay clock within two
months of this agreement. This time may be extended by mutual agreement.
2. After the 16-hour training,
the above employes will receive all on-the-job training that is
practical. They will be paid the Operator II rate while they perform the OTJ training.
3. The most senior grievant,
Pat Hall, will be placed in an Operator II position when he is
deemed qualified. If he is found not qualified, he can appeal to an independent evaluator
chosen by Campshure and Jackson. If, after a maximum of two evaluations by an
evaluator, or a 12-month training period, whichever comes first, he is still found unqualified,
he will not receive further training.
4. An independent evaluator
will be used in future qualification disputes chosen as described in
paragraph 3, above. The cost will be divided between the parties.
5. In the future, every January
1, all Operator I will be asked to sign for training opportunity.
At all times the two most senior on the list will be trained, which two persons will include
person who have already received training.
6. When a new Operator II
employee is assigned pursuant to this position, the County will
automatically create a new position. That position will not be converted to an Operator II
position until and unless Forrest Block leaves the ranks of Operator II. If the County
eliminates an Op II position by layoff, the least senior Op II by department seniority will be
bumped. This paragraph does not create lay off by classification.
7. The equipment to be trained
on will be known to the employee, but will be determined by the
County. The County will not unreasonably deny a request for a certain piece of equipment.
Pursuant to the terms of the Settlement Agreement, Pat Hall
Gustave Bramann both
of whom were classified as Equipment Operator I's - shortly thereafter were placed in the
program. The County later claimed that Hall was unqualified to be an Equipment
Operator II, but
he appealed that decision to an independent evaluator as provided for in the Agreement who,
determined that Hall was qualified. Hence, the County promoted him to the Equipment
position. At that time, Equipment Operator I Michael Christie was selected for the
training program provided for in the Settlement Agreement to replace Hall. Bramann
was trained on the grader and bulldozer and Christie was trained on the bulldozer.
The County on January 10, 1997 (unless otherwise stated, all dates hereinafter refer
posted the following position after Equipment Operator II Jim Hamilton retired:
JOB POSTING EQUIPMENT OPERATOR
This regular full-time position is located with the Oneida County
Highway Department. 1997
starting salary is $12.422 per hour and upon satisfactory completion of a probationary
hourly salary increases to $12.953.
Performs skilled work of a varied nature involving the operation of various
types of motorized heavy equipment.
Requires a high degree of skill. Standard
procedures are followed. Performs a variety of other
duties using hand tools using hand tools, mowers, chain saws, etc. Employee may be
other levels of work.
FUNCTIONS: (Illustrative Only)
- Shapes new roads, makes
ditch cuts, shoulder cuts and back slopes using backhoe, Bulldozer
and Motor Grader. Digs out ditches, tree stumps, rocks and installs culverts using backhoe.
- Plows snow off assigned
roads and applies salt/sand as needed.
- Operates a front end loader
at Hot Mix Plant during paving season.
- Saw cut brush along
- Performs duties of
Equipment Operator I as required.
- Any other duty as assigned.
KNOWLEDGE, SKILLS AND
- Knowledge of the practices,
methods and materials used in highway construction
maintenance activities and related operations;
- Must be able to operate in a
safe and efficient manner heavy equipment including but not
limited to a backhoe.
- Must be able to operate in a
safe and efficient manner Equipment Operator I machinery listed
on Equipment Operator I job description.
- Must be able to operate in a
safe and efficient manner a variety of hand tools, including but
not limited to hammers, wrenches, chainsaws, saws, sanders, shovel and broom.
- Knowledge of and
willingness to follow all safety rules and procedures.
- Ability to stand for extended
periods of time and lift up to 50 pounds.
- Ability to work in extreme
weather and in unpleasant conditions.
- Ability to prepare and
maintain accurate and complete records/reports.
- Ability to communicate both
orally and in writing.
- High School degree.
- Five years work experience
perfoming road construction and maintenance.
- Commercial Drivers License with
A, B, C, H and N endorsements.
. . .
The County, which delayed filling the position because of the Union's grievance, on
November 12 awarded that position to Equipment Operator I Freeman Bennett who had less
than several other bidders, including Christie, Bramann, and Union President James Thorn.
Highway Commissioner Robert H. Maass testified that he awarded the Equipment
II/Backhoe position to Bennett because no one else is qualified to operate the Ackerman
which is the most complex piece of machinery the County owns; because neither Bramann
Christie were ever trained on the Ackerman backhoe; and because the opportunity never
train them. Maass added that the 1994 Settlement Agreement does not guarantee anyone a
no employes have ever specifically asked to be trained on the backhoe; that the County
the Equipment Operator II/Backhoe position because of internal discussions and because the
had filed grievances; that the County "2-3 times" has promoted employes without following
that he does not believe he ever told Hall or Bramann they never would be promoted; that he
Thorn at the time of his hire he could be promoted, but that there was no guarantee of that;
he never spoke to Thorn about his background on a backhoe after Thorn bid for the
Operator II/Backhoe position.
In response to questions as to what employes should do to obtain proper training,
replied that: (1), they must put in writing what specific piece of equipment they want to be
on; (2), they should do so once a year; and (3), employes who retire should give one year's
notice so that other employes have sufficient time to train on that person's job. Maass said
Christie will be ready to operate a bulldozer in "another year or so"; that Bramann is only
qualified to be a grader and that he may be qualified on the bulldozer in a year or two; that it
be a good idea to cover training in an employe's evaluation, which is not the case now; that
Bramann nor Christie will get the Grader Operator/Paver Operator position being vacated by
Cook in June, 1999; and that the disputed posting herein marks the first time a piece of
was listed on the posting. He also said Thorn could not be trained on the Ackerman backhoe
thirty (30) days.
The record shows, via the testimony of Highway Secretary Patti Wrycha, that
Christie in 1997-1998 had been trained for about 98.5 and 437 hours respectively.
Operator I Steve Schranke testified that Maass once told him that neither Hall nor
would ever be promoted.
Grievant Thorn, an Equipment Operator I who also is the Union President, testified
operated a backhoe for his brother's excavating company; that he filled out a questionnaire,
Exhibit 7), reflecting his experience; that he was never given a hands-on test on the backhoe;
prior job postings never listed specific pieces of equipment; that employes are not expected
perform all of the duties in their job description; that Bennett is the only employe who is
operate the Ackerman backhoe; and that Maass told him at the time of his hire that he could
up to an Equipment Operator II position "rather rapidly". He also said that he is as qualified
Bennett to operate a backhoe and that no one asked him about his past experience and
when he bid for the Equipment Operator II/Backhoe position. He acknowledged on
cross-examination that he has never operated the Ackerman backhoe.
Equipment Operator I Bramann, who is one of the two employes in the training
testified that he in the past asked Maass for additional training on "any equipment" including
backhoe; that his request was denied; and that he has worked on a backhoe about a couple
hours. He also said he assumed that the most senior employe would be awarded jobs under
of the Settlement Agreement and that Maass once told him that neither he nor Hall would
promoted to Equipment Operator II.
Pat Hall, an Equipment Operator II whose earlier grievance help lead the way to the
Settlement Agreement, testified that but for two exceptions, the City has always awarded
positions to the most senior bidders; that Christie in the past was awarded a posted position
he failed his trial period; that the job description for the Equipment Operator II (Joint Exhibit
inaccurate because no employes perform all of the duties listed therein; and that Maass once
and Bramann "in the early 90's" that neither one of them would ever make Equipment
The Union filed the instant two grievances on December 1 (Joint Exhibits 2 and 3),
it claimed that the County had acted improperly by: (1), not awarding the Equipment
II/Backhoe position to the most senior qualified bargaining unit employe, by not filling the
within five days, and by misidentifying the position; and (2), not adhering to the training
set forth in the Settlement Agreement.
POSITIONS OF THE PARTIES
The Union claims that the County violated Article 4, Section C, of the contract by
awarding the position to the most senior bidder and by not according him a thirty (30) day
to determine if he is qualified for the posted position; that the County's actions "were
capricious"; that the County can only reduce the significance of seniority "at the
bargaining table, not through unilateral action"; and that the County violated the
contract by not
filling the position within five days and by listing a "specific piece of equipment" on the job
It also asserts that the County violated the "clear intent" of the Settlement Agreement by not
awarding the posted job to one of the two employes in the training program and that the
violated the "express terms" of the Settlement Agreement by not training either Bramann or
on the backhoe.
The County contends that it did not violate the contract because Bennett is the only
qualified to work on the Ackerman backhoe; because "the Union never took advantage of its
opportunity in the Settlement Agreement to prove that either Bramann or Christie should be
promoted"; and because the word "Backhoe" was added to the posting so applicants would be
that one of the primary responsibilities of the new position would be operating the backhoe.
County also states that while the Settlement Agreement may not have been "a classic work of
it did not violate the Settlement Agreement because nothing therein "requires training on a
piece of equipment."
This case partly turns on Article 4 of the contract, entitled "Seniority", which
Section C: In the event of a layoff, return
work or the filling of a vacancy in either the
regular full or regular part-time position, seasonal or new position, job seniority shall
prevail. In the
event of a layoff, the last person in such affected job shall be the first laid off and the last
laid off shall be the first returned to work. The rules of seniority shall be applied by
of the parties to this Agreement through the consideration of two factors; namely length of
and competency of the employee affected. In the event of a general or partial layoff
due to lack of
work or other causes similar thereto, layoff shall be affected according to the department
as outlined above in all cases except where the application of such rules would impair the
of the operation of the Highway Department. (Emphasis added).
The Union claims that this language supports its case because it states that "job
prevail" in "the filling of a vacancy. . ." Here, since the County admittedly did not follow
it is easy to see why the Union believes this proviso has been violated.
However, the County rightfully points out that this proviso further states that the
"shall be applied by mutual consent of the parties. . . through the
consideration of two
factors: namely, length of service and competency of the employee affected."
This "competency" requirement is not defined: does it mean that a job bidder must be
competent at the time the job is posted or does it refer to the competency that can be gained
trial period? Much of this case hinges on the answer to this question.
Elsewhere, Article 5 of the contract, entitled "Promotions", provides:
Section A: Opportunity for advancement to
higher classifications shall be provided for as
follows: In the event of a permanent vacancy, or the creation of a new job classification, the
Commissioner shall cause to be posted on the main shop bulletin board and all outlying shop
boards, a notice of such vacancy or new position. Said notice shall be posted for a five (5)
period. At the end of that five day period, the notice shall be removed and the position shall
within five (5) days.
(1) Permanent vacancy defined: A
"permanent vacancy" means the vacancy created in
any salary range because of the death, retirement or termination of employment of any
other vacancies are "temporary".
(2) The Commissioner shall have the
right, without the requirement of posting, to shift
employees into any lower or higher job classification or within any salary range where a
vacancy exists for the duration of the temporary vacancy.
Section B: All employees
interested in applying for such vacancy or new position, shall
file application with the Highway Commisisoner.
Section C: Employees on
vacation and sick leave shall be notified of such job
opportunities so that they will have a chance to apply.
Section D: Assignments
of employees to fill such job vacancies or new positions shall be
made according to seniority providing the employee considered can qualify for the
position to be
filled. The secretary of Local #79 shall be notified of the employee chosen for the job.
Employees who are transferred or promoted within the bargaining unit, shall
be given a thirty (30) day trial period for determination as to whether or not they can meet
requirements. This trial period may be extended by mutual consent of the parties to
in cases requiring more than thirty (30) days. Employees may, at any time during this trial
at their option, return to their former position without loss of seniority. The employee shall
returned to his/her former position if he/she does not satisfactorily complete the thirty (30)
period. (Emphasis added)
. . .
By requiring the County to award posted positions to the most senior employe who
Article 5, Section D, indicates that an employe need not be fully qualified at the time of the
5, Section E, supports this interpretation because it gives employes a thirty (30) day trial
period to learn how
to perform any such posted jobs, thereby showing that an employe "can qualify" for a posted
successfully passing his/her thirty (30) day trial period. After all, if that were not the case,
why have a trial
The Ackerman backhoe is a very complex piece of machinery which requires
experience and skill. Indeed, Highway Commissioner Maas testified that it is the single most
piece of machinery to operate within the Highway Department. It therefore is an open
to whether an inexperienced operator can master its operation in the thirty (30) day trial
provided for in the contract. But, that is a matter of conjecture which cannot be answered
contractually provided trial period. Standing alone then, Article 5, Section D, indicates that
County violated the contract when it failed to grant more senior applicants the
thirty (30) day trial period to determine whether they could operate the Ackerman backhoe or
other piece of equipment.
But, this language does not stand alone since it must be read alongside the Settlement
Agreement which states that an "independent evaluator" is to resolve posting grievances
Equipment Operator II openings. The County therefore argues that the grievances must be
because the Union did not avail itself of that procedure. In response, the Union argues that
"independent evaluator" referenced in paragraph 4 of the Settlement Agreement set forth at
above, is to be called in only to resolve disputes "as described in paragraph 3
above" and that, as a
result, it has no application here.
The Settlement Agreement is hardly a model of clarity or - as the County puts it, not
work of art" - since it fails to expressly state whether the "independent evaluator" is to be
all promotional disputes, as claimed by the County, or only for
those disputes relating to the training
program, as claimed by the Union.
I conclude that the County under the unique facts of this case did not violate the
Agreement when it failed to train Equipment Operators Christie and Bramann on the
backhoe because: (1), it is not at all clear that the two of them could have been trained in
the condition of the ground and the non-use of the Ackerman backhoe in the winter; and (2),
Bramann nor Christie at that time expressly asked to be trained on the
Ackerman backhoe. (Bramann
earlier had asked for backhoe training, but his request was not followed up at the time of
I also agree with Maas' testimony that:
1. Employes in the training prorgam should identify in writing what specific
equipment they want to be trained on.
2. Employes should express their preferences in writing for particular pieces of
equipment twice a year.
3. Employes who intend to retire should give one year's notice so that other
have sufficient time to train on that person's job.
4. Training henceforth should be covered in an employe's evaluation.
I conclude that all these steps are needed to properly implement the Settlement
However, even if one year's notice is not given for a retirement or a quit, the spirit
Settlement Agreement dictates that the County offer whatever training is needed on any
piece of equipment so that Bramann or Christie or whoever else is in the training
subsequently bid for those positions once they open up. Hence, once the County receives
a pending retirement, quit, termination, or permanent vacancy in the Operator II
classification, it shall
immediately offer such training to whoever is in the training program and, if
they post for any such
openings, it shall give them the contractually mandated thirty (30) day trial period. Any
disputes relating to their qualifications must be submitted to an "independent evaluator" as
for in the Settlement Agreement.
The same procedure also must be followed for any other promotional
disputes involving the
filling of Operator II positions. In that way, the parties will be able to: (1), obtain a
much quicker than they can get in arbitration; and (2), obtain an expert opinion relating to
I also find that the County violated Article 5 of the contract when it posted for an
Operator II/Backhoe" position. The contract, in fact, contains no such classification.
Instead, it in
Addendum I only lists Equipment Operator I, Equipment Operator II, and various other
classifications, none of which refer to any particular piece of equipment.
Accordingly, and because
Maas himself admitted that there has been a universal past practice of not
including a particular piece
of equipment on job postings, the County erred when it posted an "Equipment Operator II
The County also violated Article 5 of the contract by not filling this slot within 5
Article 5, Section A, mandates that at the end of the posting period, the "notice shall be
the position shall be filled within five (5) days". Here, the County did not fill the January,
posting until November, 1997, because of the Union's grievance. A grievance however,
otherwise expressly agreed to by the Union, does not absolve the County of its contractual
fill postings within five (5) days.
Given the County's wrongful posting, it now must repost the Equipment Operator II
without referring to a particular piece of equipment. It then shall award that
position to the most
senior applicant who will be granted a thirty (30) day trial period. If there is a dispute at
the end of
the trial period as to whether he/she is qualified, the matter shall be immediately submitted to
"independent evaluator" provided for in the Settlement Agreement. If that person is deemed
unqualified by the "independent evaluator", the County shall repeat this process with the next
senior bidder until such time that a bidder is determined to be qualified.
In light of the above, it is my
1. That while the County did not violate the October 27, 1994, Settlement
when it failed to train certain employes on the backhoe, the following steps must be taken in
to properly apply the Settlement Agreement:
a. Employes in the training program twice a
year must put in writing on what specific
pieces of equipment they want training.
b. Operator II's who
intend to retire or quit should give a year's notice, if at all
practicable, so that other employes have sufficient time to train for their jobs.
c. Training must be covered in an employe's
d. After receiving word of a pending
retirement, quit or termination, and after having
decided to fill any such vacancy, the County shall immediately offer training to
whoever is in the training program and, if they post for any such openings, the County
shall provide that person with the contractually-mandated thirty (30) day trial period
to determine if he/she can perform that job. Any subsequent disputes relating to
his/her qualifications must be submitted to an "independent evaluator" as provided for
in the Settlement Agreement.
2. The County violated Article 5 of the contract when it failed to award the
Operator II position to the most senior bidder; when it posted that position as "Equipment
II/Backhoe"; and when it did not fill that position within five days. To rectify those contract
violations, the County shall immediately repost that position as an Equipment Operator II
and it shall award that position to the most senior bidder who will then be given a thirty (30)
period. If there are any disputes over whether that person is qualified, the matter shall be
to the "independent evaluator" provided for in the Settlement Agreement.
3. That to resolve any questions that may arise over application of this Award, I
retain my jurisdiction for at least six (6) months.
Dated at Madison, Wisconsin this 22nd day of July, 1999.
Amedeo Greco, Arbitrator