BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LANGLADE COUNTY HIGHWAY
EMPLOYEES, LOCAL 36, AFSCME,
Mr. David Campshure, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1566 Lynwood Lane, Green Bay, Wisconsin 54311, appearing on
behalf of Langlade County Highway Department Employees, Local 36, AFSCME, AFL-
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
On December 11, 1998, the grievant filed a request with the Wisconsin Employment
Commission requesting the Commission to appoint a Commissioner or a member of its staff
as the sole arbitrator to hear and decide a grievance pending between the parties. The matter
assigned to the undersigned who held an evidentiary hearing on March 19, 1999 at the
County Courthouse in Antigo, Wisconsin. Briefs have been filed and exchanged and reply
been filed and exchanged, the last of which was received on May 24, 1999, closing the
The Union submitted the issue as:
Did the County violate the parties' collective bargaining
agreement when it used a third
Grader Operator without posting the position? If so, what is the appropriate remedy?
The County submitted the issue as:
Did the County violate the terms of the
collective bargaining agreement by failing to create
and post a Grader Operator position. If so, what is the appropriate remedy?
I conclude that the issue is:
Whether the County violated the collective
bargaining agreement when it failed to post the
position of Grader Operator and if so, what is the remedy?
The County possesses the sole right to
operate County government and all management rights
repose in it, subject only to the provisions of this contract and applicable law. These rights
but are not limited to the following:
. . .
C. To hire, promote, transfer, schedule and assign
employees to positions within the County in
accordance with the terms of this Agreement.
. . .
J. To determine the kinds and amounts of services to
be performed as pertains to County
government operations; and the number and kinds of classifications to perform such services;
K. To determine the methods,
means and personnel by which County operations are to be
Any dispute with respect to the
reasonableness of the application of said management rights with
employees covered by this Agreement may be processed through the grievance and
. . .
. . .
C. Whenever a vacancy occurs, or
a new job is created, it shall be posted on all shop bulletin
boards for a period of five (5) working days. The County may delay the posting of any
vacancy or new job for up to a period
of four (4) months until such position or job is deemed
necessary, provided no employee
performs the work or operates the equipment for such position or job unless in an
An emergency should be defined as a sudden, pressing necessity, requiring immediate action.
The secretary of the Union shall be provided with a copy of the posting.
. . .
The Employer shall have the right to temporarily fill a job that is
posted. However, such
temporary filling of a job shall continue only for a reasonable time after the end of the five
posting or the settlement of a grievance, if one should arise.
When a position is not filled after the first
posting, or the Employer does not hire a new employee
to fill the position, and it remains vacated for a period of six (6) months thereafter, it shall
one more time so interested employees will have another opportunity to apply if they so
. . .
In the event an Employer determines that a vacated position is no
longer needed in the table or
organization and will not be filled either temporarily or permanently, the Highway
notify the Union in writing that the position is being abolished.
. . .
Hours of Work and Classifications
. . .
D. Any employee that performs work in a higher
classification shall receive the rate of pay for
that classification. If he/she is performing work in a lower classification, he/she shall
receive no lower
than his/her regular classification rate.
The County and the Union have been signatories to a series of collective bargaining
agreements, the relevant terms of which have been set out above. This dispute involves the
interpretation of the agreement as it relates to the posting procedure and assignment of
Langlade County Highway Department employs 43 workers which utilize heavy
to perform various functions. The Department has approximately 50 pieces of heavy
Employes are assigned to various job classifications based upon the type of equipment they
Approximately four employes held Range 1 Grader Operator positions and one
a Range 2 Grader Operator position. During the passage of time, when two of the Grader
were either promoted or retired, the County decided not to fill the positions and abolished the
positions with notice to the Union. The County currently has two Range 1 Grader Operator
Pat McCarthy is employed by the Highway Department as a Range 1 Bulldozer
In 1998, for approximately 85.75 hours, he was assigned to operate a grader. This
4 percent of a full-time employe's normal yearly work hours. He was assigned to
operate the grader
on July 22, 23, 27, 28, 29 and 30, as well as August 11, 12 and 13, 1998. On these dates,
graders were operated. The operators of these graders were the two Range 1 Grader
Joint exhibit 4 is an arbitration award by Arbitrator Bielarczyk of the Wisconsin
Relations Commission. In that award the Arbitrator held that the temporary assignment of an
employe to a large piece of equipment outside of the employe's job title did not constitute the
of a position requiring the posting of that position, but was rather a temporary work
within management rights.
On August 5, 1998, the Union filed a grievance in this matter, alleging that the
violated the terms of the collective bargaining agreement by not posting a Range 1 Grader
POSITIONS OF THE PARTIES
Position of the Union
The Union maintains that because the County eliminated two of the Grader Operator
it cannot assign an employe to a grader without posting the position. The Union cites Article
Section C, paragraph 6, which states, "In the event an Employer determines that a vacated
is no longer needed in the table of organization and will not be filled either temporarily or
the Highway Commissioner shall notify the Union. . . ." The Union submits that the
language is clear
and leaves no room for dispute.
The Union also maintains that the parties negotiated this language which states that
eliminating a position, the County must determine that the position is not needed on either
a temporary or permanent basis. The Union points out the agreement also outlines the
posting a position, which states that a position not filled through posting remains vacant.
submits that by failing to post the third Grader position, the County ignores the language of
Relative to Arbitrator Bielarczyk's award, it is the Union's position that it does not
these facts. The issue in that case was whether the County was required to post and fill a
fifth Caterpillar Operator position. The Union submits there is a distinct difference between
and the case decided by Arbitrator Bielarczyk. The distinction the Union makes is that the
award was not related to positions that had once been created and then eliminated. In the
decided by Arbitrator Bielarczyk the County was not attempting to fill a previously
position on either a permanent or temporary basis. The Union argues that the Arbitrator
decision on whether management has a right to determine whether enough work exists to
creation and posting of a new position. This case, the Union argues, concerns whether the
has a right to utilize a previously eliminated position without first posting the position.
Position of the County
The County submits that well-recognized arbitral law holds that in the absence of a
contractual provision, an employer possesses the exclusive authority to determine whether a
vacancy exists. The County further submits that even if an employer determines a vacancy
Employer still retains the authority to determine whether it should be filled. The County
that the agreement specifically confers upon the County the contractual authority to determine
a job vacancy exists and, if one does exist, whether it will be filled.
In support of this position, the County argues that the language of Article 4, confers
County the authority to direct all operations, determine the kinds and amounts of services to
performed, and to determine the number and kinds of classifications and the methods, means,
personnel by which County operations are to be conducted. The County argues that further
to this position is the previous decision of Arbitrator Bielarczyk in which the Arbitrator
the County had the specific management right under Article 3 to determine the number and
classifications necessary to perform its services, subject to a test of reasonableness. Based
on this test
of reasonableness, the very limited number of hours Mr. McCarthy was assigned to
the grader, the
County's decision not to post the job was reasonable. Finally, the County argues additional
is given to its argument based on Article 4(A), (C), and (K), which confer upon the County
contractual right to assign an employe in one job classification to work in another job
Lastly, the County maintains that a vacancy does not exist because an employe is
assigned to perform duties of another job classification. Based on Article 13(D),
the County argues that this contractual provision contemplates that the County will
to work in other job classifications. The County states there is support for this belief based
statements of Arbitrator Bielarczyk in the previous case. The Arbitrator noted that the
Article 13(D) "acknowledges that there are times when the County has a need for additional
in a specific classification." The County argues that if they were required to post a position
an employe is utilized in another job classification, Article 13(D) would be made useless. In
the County has routinely assigned employes in one job classification to work in another job
classification without grievance from the Union.
There were certain management rights, subject to the other provisions in the contract,
the County possesses. Among these rights include the right to assign employes to positions
County. This is limited by the posting provision under Article 6 of the Agreement. This
states, in part, that "whenever a vacancy occurs, or a new job is created, it shall be posted
on all shop
bulletin boards for a period of five (5) working days." This provision goes on to state that
Employer determines when a position is no longer needed and will not be filled temporarily
permanently. Article 4 provides that the exercise of management rights is subject to a test of
In this case, the Employer determined that two of the Grader Operator positions
be filled, eliminated them and so notified the Union. Based on the language of Article 6,
right is limited by the fact it must notify the Union, it is not limited in determining when a
exists in a temporary or permanent position.
In addition, Article 4 authorizes the County to assign employes to positions and to
the personnel by which County operations are to be conducted. Article 13 authorizes an
performing work in a higher classification to receive the rate of pay for that classification.
overlook all of these provisions when determining whether the County violated the
assigning Mr. McCarthy to the grader would be an error. If the contract was read as
the Union, these provisions relative to the Employer determining that a position is no longer
and relative to out-of-classification pay, would be without purpose.
Lastly, although a prior arbitration award is not binding on future awards, it may
and applicability. Parties should be able to rely on past awards in determining whether their
are appropriate. Although the Union argues that the previous award is distinct because it
regarding new positions and the case at hand is dealing with eliminated positions, the
does not find the argument persuasive. It is undisputed that the County eliminated the
Grader Operator positions; the positions were abolished. Therefore if, as the Union
vacancy existed, these positions would be new, whether previously eliminated or not.
Viewed in this
light, Arbitrator Bielarczyk's award is speaking directly to this
issue. He also found that based on the management rights provision, the posting
provision, and the
out-of-classification pay provision the County is not required to create an additional job or
which must be posted whenever the County has a temporary need to use the current
In sum I find that the assignment of work to an employe outside of the employe's
classification for 86 hours, is less than the hours at issue in the previous award, is
de minimus and did
not constitute the filling of a position which would require the posting of a position.
The grievance is not sustained and is dismissed.
The County did not violate the collective bargaining agreement when it failed to post
Dated at Madison, Wisconsin this 27th day of August, 1999.
James R. Meier, Arbitrator