BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARATHON COUNTY HIGHWAY EMPLOYEES,
MARATHON COUNTY (HIGHWAY
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, appearing on
behalf of the Union.
Ruder, Ware & Michler, S.C., by Attorney Jeffrey T. Jones,
500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on behalf of
Marathon County Highway Employees, Local 326, AFSCME, AFL-CIO, hereinafter
and Marathon County (Highway Department), hereinafter County or Employer, are parties to
collective bargaining agreement that provides for the final and binding arbitration of
thereunder. The Union requested, and the County concurred in, the appointment of a
staff arbitrator to resolve a pending grievance. The undersigned was so designated on April
An arbitration hearing was held in Wausau, Wisconsin, on June 16, 1999. The
hearing was not
transcribed. The record was closed on August 13, 1999, upon receipt of post-hearing written
The County frames the issue as follows:
Did Marathon County violate the terms of the collective
bargaining agreement by not
assigning the Grievant to the Marathon City snowplowing route?
If so, what is the appropriate remedy?
The Union frames the issue as follows:
Did the Employer violate the collective
bargaining agreement by refusing to award the
Marathon City winter section to the Grievant?
If so, what is the appropriate remedy?
The undersigned adopts the Union's
statement of the issue.
Article 2 Management Rights
Public policy and the law dictate clearly the
Department's primary responsibility to the
community as being that of managing the affairs efficiently and in the best interests of our
employees, and the community. The employer's rights include, but are not limited to, the
but such rights must be exercised consistent with the provisions of this contract.
1. To utilize personnel, methods and means
in the most appropriate and efficient manner possible.
2. To manage and direct the employees of
3. To hire, promote, transfer, assign, or
retain employees in positions within the department.
. . .
6. To determine the size and composition of
the work force.
. . .
11. To change existing methods or facilities.
. . .
Article 7 Job Posting
1. Posting Period: Notices of
vacancies due to retirement, quitting, new positions, or for
whatever reason, shall be posted on all bulletin boards for five (5) working days (to
consecutive weeks). The employer shall notify the union in writing in the event it decides
not to fill
a vacancy and/or abolish a position. The employer shall send a copy of the posting to the
2. Requirements: The job
requirements, qualifications, and rate of pay shall be part of the
posting and sufficient space for interested parties to sign said posting.
3. Job Award: In filling a
vacancy, the employee signing with the greatest seniority in the
Department who can qualify shall be given the position. The County shall post on the
the name of the employee who is awarded a posted job and also provide a copy to the Union.
There shall be a ten (10) day working trial
period for any employee posting into a new position
in the Highway Department where the employee may exercise the option of returning to the
employee's former position.
4. Trial Period: Employees
filling promotional vacancies shall be on a probationary period
for thirty (30) days unless such employee has not yet completed an initial six (6) month
period as specified in Article 6(1). If such employee has not yet completed an initial
six (6) month
probationary period as specified in Article 6(1), such employee shall also remain on
status until that probationary period is successfully completed. The trial period may be
mutual agreement between the Union and management where there remains reasonable doubt
regarding satisfactory performance.
5. Job Security: An
employee who fails to qualify for the job obtained through job posting
shall be reassigned to the employee's former level of employment at anytime during the
probationary period on such job.
6. Temporary Assignments:
The County reserves the right to make immediate temporary
assignments to fill any vacancy during the posting period.
7. No Penalty: There shall be no penalty for a
lateral move within the classification system.
No loss of permanent rate status will result from bid awards unless an employee bids down.
. . .
Employees assigned to snow removal duties (operating patrol
trucks) shall be paid at Level 3 for
time worked performing those duties.
In late October or early November of 1998, the County posted a "Notice of Available
Section" at Marathon City. This notice contained a map of the relevant area and stated:
below if you are interested in performing winter maintenance on the above winter section.
will be based at the Stratford shop."
The County has two principal Highway Department Shops. Shop I is located in
Shop II is located in Stratford. Shop I has two satellite shops, Hatley and Mosinee. Shop II
satellite shop at Abbotsford. Marathon City falls within the work area of Shop II.
A winter section is a snowplow route. The Marathon City winter section became
when the County reconfigured its snowplow routes from four to five. The five routes
same area as the four routes.
James Karlen, hereafter the Grievant, is employed as an Equipment Operator II at
John Yessa is employed as a Trades Technician II at Shop II. Each of these employes
applied for the
Marathon City winter section. The Grievant, who has the ability to perform the Marathon
section work, was deemed ineligible for the Marathon City winter section because he was
to Shop I.
On November 4, 1998, the Grievant, who has more seniority than Yessa, filed
alleging that the County had violated the terms of the collective bargaining agreement by
the Marathon City winter section to Yessa, rather than to the Grievant.
Glenn Speich, Commissioner of the Marathon County Highway Department, denied
grievance in a memorandum dated November 6, 1998, which states as follows:
There are no position openings at Stratford. The "plow section
interest" posting is not an "open"
posting. The posting was to allow existing employees a chance to change plowing
The contract has no provision for senior
employees assigned to Wausau to bump an employee
from an outlying shop.
The grievance is hereby denied because
management has the right to determine assignments
under Article 2 (1), (2), (3), (6), and (11) Management's Rights.
On January 4, 1999, Personnel Director Brad Karger issued the following response to
I have decided to deny Grievance #11-9 (Karlen) as there has
been no violation of the Labor
The grievance alleges a violation of Article
7 Job Posting when John Yessa was assigned a new
winter section around the Marathon City area. One of the areas of dispute is whether a
"Notice of Available Winter Section" constitutes a job posting as called for in Article 7.
of the Labor Agreement calls for the posting of "vacancies." Glenn Speich, Highway
has made it clear that the new winter section is not a "vacancy", no one retired or resigned.
a new job assignment open to employees at the Stratford Shop which was created by
size of other plowing routes, in order to enhance the level of service provided to these areas.
Highway Department does not need or want additional employees transferring to Stratford to
the work; such a transfer would create a shortage of backup plow drivers in Wausau. The
prepared and distributed in order to see who at the Stratford Shop is interested in being
for plowing the newly created winter section.
Denying James Karlen the opportunity to
transfer to Stratford is no reflection on the quality of
his work. The managers of the Highway Department have advised me that James is one of
the department consistently relies upon in winter emergencies. I can, also, understand why
Karlen thought that the new route assignment looked interesting. It is in James' home area,
City and the route is assigned a new vehicle.
Because this problem occurred because of
confusion between the "Notice of Available Winter
Section" and a job posting, I have advised the Highway Commissioner to stop creating and
distributing these types of notices. In the
future, I think it best that if a new work assignment is available,
either he sees if anyone is
interested informally or he just assigns the new work to someone. That which was intended
to be of
benefit to the employees has not worked out well and seems to be creating more problems
than it is
Thereafter, the matter was submitted to grievance arbitration.
POSITIONS OF THE PARTIES
A vacancy was created by the creation of a new position. The new position was
the Grievant signed the posting.
The clear and unambiguous language of Article 7-Job Posting provides
that a new or vacant
position be posted and awarded to the most senior qualified bidder. It is undisputed that the
is both qualified and the most senior bidder. The arbitrator is without authority to ignore or
clear and unambiguous contract language.
The Grievant should be awarded the new position. The County should be directed to
the Grievant whole for any loss incurred and to cease and desist from such actions in the
There is a difference between a job assignment and a job vacancy. The term
used in Article 7, Sec. 1, clearly means job vacancies.
Job vacancies refer to positions listed in the Wage Appendix of the collective
agreement, or newly created positions that are to be incorporated within this Wage
vacancy was created by an employee's retirement, quitting, or termination.
It is undisputed that job vacancies are posted on blue paper. The Marathon City
section was posted on white paper and did not contain the information required to be listed
Article 7, Sec. 2.
The testimony of the Assistant Director of Highways demonstrates that fifteen to
snowplowing routes have been posted in the last five to six years and that these routes were
in order to provide employes with an opportunity to indicate a preference for a
snowplowing assignment. This testimony further demonstrates that it was well
employes at Shop I could not apply for snowplowing routes at Shop II. The Union has never
The contractual Management Rights clause provides the County with the right to
personnel in the most appropriate and efficient manner. By assigning available Shop II work
Shop II employe, the County was utilizing personnel in the most appropriate and efficient
An employer possesses the authority to determine whether a job vacancy exists,
authority has been bargained away. Consistent with its management rights, the County
determined that the Marathon City winter section was not a job vacancy, but rather, was a
assignment and that such a job assignment need not be posted under Article 7, Sec. 1,
under Article 7, Sec. 3. The grievance is without merit.
The undersigned agrees with Union President Mike King's conclusion that the County
posted a vacant winter section. The issue to be determined is whether or not a vacant winter
is a vacancy that must be posted in accordance with Article 7 of the parties' collective
As the County argues, no employe had resigned, retired or been terminated prior to
posting of the "Notice of Available Winter Section." Article 7, however, does not limit
vacancies caused by these three situations. Rather, a vacancy may occur "for whatever
Thus, the fact that there have not been any resignations, retirements, or terminations does
not, in and
of itself, establish that the vacant winter section is not a vacancy within the meaning of
Article 7, Sec. 1, does not define a "vacancy." Article 7, Sec. 1, however, does not
alone. Rather, it must be construed in a manner that is consistent with other sections of the
The first sentence of Article 7, Sec. 3, equates "vacancy" with a "position." Thus,
reasonable construction of Article 7, Sec. 1, is that a "vacancy" is a vacant position.
Appendix A to the parties' collective bargaining agreement states that "Employees
to snow removal duties (operating patrol trucks) shall be paid at Level 3 for time worked
these duties." This language indicates that a winter section, which is a snowplow route, is a
assignment, rather than a position.
The testimony of the Assistant Director of Highway and Union President Mike King
establishes that winter section work may be performed by a variety of bargaining unit
but that full-time, year round employes, such as a Mechanic, cannot post for winter sections.
posting restriction based upon workload is further proof that a vacant winter section is a
assignment, rather than a position.
To be sure, it is not uncommon for an employer and a union to agree that work
are subject to bid. However, as discussed above, the contract language does not warrant the
conclusion that a winter section is subject to the Article 7 bidding process. Nor, for the
discussed below, does the evidence of the parties' practices.
It is not evident that, prior to the instant dispute, any employe at Shop I posted for
section at Shop II, or vice-versa. This evidence is consistent with the County's argument
that it was
understood that employes at one shop could not apply for a winter section at another shop.
However, this evidence is not sufficient to demonstrate the existence of such an
The Grievant confirmed at hearing that a white sheet posting denotes a work
while a blue sheet posting denotes a job posting. Consistent with prior practice, the
winter section vacancy was posted on a white sheet.
A white sheet posting and a blue sheet posting are distinguished not only on the basis
but also on the basis of content. A blue sheet posting, unlike a white sheet posting, contains
information that is contractually required to be on Article 7 job postings, i.e.,
qualifications, and rate of pay.
As in the past, the County posted the "Notice of Available Winter Section" at all
of its shops. This
posting appears to be inconsistent with the County's position that the Marathon City winter
is a work assignment that is limited to employes assigned to Shop II. This apparent
however, is explained by the testimony of Assistant Director of Highway Mokey,
i.e., that postings
are placed at all the shops as a courtesy to employes because a few employes do not like to
their own shop.
In summary, while vacant winter sections have been posted, they have not been
accordance with the requirements of Article 7, Sec. 2. This evidence of the parties' posting
supports the conclusion that a vacant winter section is not a vacancy within the meaning of
7, Sec. 1.
Neither the language of the collective bargaining agreement, nor the evidence of past
demonstrates that the Marathon City winter section is a vacancy that is required to be posted
Article 7. Accordingly, the Grievant does not have an Article 7 seniority right to be
Marathon City winter section.
By limiting eligibility for the Marathon City winter section to employes at Shop II,
avoids paying travel pay to employes who are required to travel between Shop I and II and
the mix of bargaining unit classifications at each shop that it has determined to be
as the County argues, the County's decision to limit eligibility for the Marathon City winter
assignment is consistent with the County's Article 2 right "to utilize personnel, methods and
in the most appropriate and efficient manner possible."
Based upon the above and foregoing, and the record as a whole, the undersigned
1. The Employer did not violate the collective bargaining agreement by refusing to
Marathon City winter section to the Grievant.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 25th day of August, 1999.
Coleen A. Burns, Arbitrator