BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS LOCAL UNION NO.
affiliated with the
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
D.C. EVEREST AREA SCHOOL DISTRICT
and its BOARD OF EDUCATION
(Job Posting Grievance)
Ms. Naomi E. Soldon, with Mr.
Jonathan M. Conti on the brief, Previant, Goldberg, Uelmen,
Gratz, Miller & Brueggeman, S.C., Attorneys at Law, 1555 North Rivercenter Drive,
Suite 202, P.O.
Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of General Teamsters Local
No. 662, affiliated with the International Brotherhood of Teamsters, AFL-CIO, which is
below as the Union.
Mr. Ronald J. Rutlin, Ruder,
Ware & Michler, A Limited Liability S.C., Attorneys at Law, Suite
600, 500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on behalf
Everest Area School District and its Board of Education, which is referred to below as the
or as the District.
The Union and the Employer are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a grievance filed on behalf of Craig Brown and
Thomas. The Commission appointed Richard B. McLaughlin, a member of its
staff. Hearing on the matter was conducted on February 18, 1999, in Schofield,
Wisconsin. At that
hearing, the parties waived application of those contract provisions calling for and governing
arbitration panel. A transcript of the hearing was submitted to the Commission on March 9,
The parties filed briefs and reply briefs by June 14, 1999.
The parties stipulated the following issues for decision:
Did the District violate the collective bargaining agreement
when it did not award a Class I
third shift full-time custodial position, which was posted on August 4, 1998, to either
If so, what is the appropriate remedy?
ARTICLE 5 SENIORITY
Section 1. Seniority shall
apply to part-time custodians separate from full-time custodians. Part-time custodians will be
given consideration for any full-time positions that become available. Part-time employees,
upon becoming a full-time employee, shall establish their seniority as of that date
within the full-time group. Seniority shall prevail and shall be determined by length of
last date of hire plus additional time as is required to be granted for vacations, leaves of
illnesses and accidents. . . .
Section 3. Part-time
custodians will be laid off or reduced before full-time custodians are
affected. When it is necessary to layoff part-time custodians, those employees with the least
shall be laid off first, providing those employees retained are capable of carrying on the
When it is necessary to layoff full-time custodians, those employees with the least seniority
laid off first, providing those employees retained are capable of carrying on the operation.
employees are called back to work, those employees having the greatest seniority shall be
providing they, together with those on the job, are capable of carrying on the usual
exception to this provision shall be by mutual agreement between the Employer and the
Notice of Layoff. Whenever
possible, in the event of a reduction in staff, the Board shall give
at least two (2) weeks notice to the affected employee.
Order of Layoff. The Board shall have the right to
determine the number and/or location of
positions to be reduced or eliminated. Employees in reduced or eliminated positions shall
right to replace less senior employees in unaffected positions within their pay classification or
pay classification if they are qualified to perform the duties and responsibilities of the
position. Employees who are replaced by other employees under this section shall have the
replace less senior employees as provided above.
Recall. Employees shall be recalled in inverse order
of layoff within their classification provided
they are qualified to perform the available work. Notice of recall for any employee who has
off shall be sent by certified mail, return receipt requested, to the last known address of the
It shall be the responsibility of each employee on layoff to keep the district advised of any
his/her address. Within three (3) working days of receipt of a recall notice, the employee
the district of his/her intentions regarding the recall. The employee shall report to work no
ten (10) days thereafter.
. . .
Section 5. Seniority for
part-time employees shall govern which employee gets the newly created
job or vacancy, provided that such employee is qualified to perform the job. Seniority for
employees shall govern which employee gets the higher rated and newly created jobs or
provided that such employee is qualified to perform the job. In the event a question of
to do the job arises, such issue shall be taken up between the Employer, the Union, and the
involved. The intent is to give the senior applicant every reasonable consideration in filling
vacancy. If the employee is then selected, he/she shall be given the job on a thirty (30)
probationary period. Employees moving from Class III to Class I shall have a forty (40)
probationary period. If the employee cannot handle the new position, he/she will be
his/her former position at the current rate of pay for that position.
. . .
The grievance questions the Employer's refusal to award a Class I Custodial position
Grievant. Under the labor agreement, part-time custodians are Class IV positions. Custodial
I, II and III include only full-time positions. The highest paid classification is Class I. The
in question is a third shift, Class I position at D.C. Everest High School. The Employer
vacancy on August 4. The successful applicant was expected to be able to perform a number
functions concerning pool maintenance at the Employer's Greenheck athletic facility.
The position description for Class I Custodian reads thus:
. . .
* Maintains building custodial supplies.
* Prepares building budget requests.
* Maintains athletic field care.
* Has a working knowledge of all
* Operates heating, ventilating, and
air conditioning equipment.
* Coordinates activities between the
principal and custodians.
* Checks in material received at
* Trains and directs student helpers.
* Maintains equipment and vehicles.
* Does all phases of ground
* Operates ground care equipment
* Makes heating and ventilating
adjustments and repairs.
* Makes electrical repairs.
* Makes plumbing repairs.
* Operates and maintains high school
* Cleans boilers (all phases).
* Promotes safe working conditions.
* Reports all malfunctions to
Maps summer work schedule
Removes snow (all phases). Operates
snow removal equipment.
Takes annual building custodial inventory.
Inspects building systems.
Maintains building security.
Sets up buildings for school functions.
Sets up new equipment and furniture.
Does required cleaning.
Makes roof repairs.
Does painting (all phases).
Does carpentry work.
Cleans up equipment.
Puts supplies away and maintains supply
Performs other duties as assigned.
High school graduation or its equivalent.
Ability to understand and maintain
Cooperative and able to work efficiently
with other people.
Must be well organized and carry out
responsibilities with minimal direction and supervision.
Must be able to relate well with the
DESIRABLE TRAINING AND
Training in building maintenance.
TERM OF EMPLOYMENT:
* REPRESENTS ESSENTIAL
The grievance form, filed on August 26, 1998, (references to dates are to 1998 unless
noted), states the "nature of grievance" thus: "Seniority Rights, and be given working day
probationary period." The form notes the "Settlement Requested" thus: "(G)iven
work my probationary period and to show I can do the work."
James Jaworski, the Employer's Supervisor of Personnel, denied the grievance at
a memo dated September 1. That memo states:
. . .
It is uncommon to have a Class IV
Custodian move directly into a Class I position. Our system
is designed to allow an employee to work up through the system and learn the necessary
perform in a higher classified, higher paying position. The Administration has an obligation
District and to other Teamster Union members to fill the position with an individual who has
ability to properly perform duties associated with the position.
Part-time and full-time custodians are contractually different.
Seniority accrues separately in each
group . . . The District gave equal consideration to the applicants by allowing them to
their skills on an examination. The contract does not state that part-time custodians will be
full-time position on the basis of seniority. It only states that seniority is the determining
a part-time custodian bids on another part-time position.
. . .
Ultimately, the School Board considered the grievance at a meeting held on October
27. The minutes
of that meeting detail the "Administration's Rationale" thus:
Our contractual agreement with Local 622 (sic) expressly and
intentionally restricts seniority
separately within the part-time and full-time groups. Had this job been a part-time job, the
senior individual in the part-time group (Brown) would have been selected based on seniority
his respective group. However, since the opening in question was a full-time job, seniority
As for the interpretation of the contract
language "given consideration" in Article 5, Section 1,
the District rejects the idea that this means the most senior part-time person should
given a trial period.
. . .
The Board voted to deny the grievance.
At the arbitration hearing, the parties stipulated, for the purposes of this grievance,
Brown, the most senior applicant, is qualified for the custodian Class I position, and that he
to perform all of the job responsibilities set forth on the job description (which is set forth
Thus, the parties litigated the grievance as a matter of contract interpretation. The evidence
submitted focused on past practice and on bargaining history.
The Evidence of Past Practice
Angie Jagler is currently employed as a full-time Custodian III at D.C. Everest High
She started work for the Employer as a part-time custodian. In June of 1990, she signed a
for a full-time position as a Custodian III. The District offered the position to a non-unit
Jagler responded by filing a grievance. The parties ultimately executed a settlement
October 4, 1990, resolving the matter. The agreement states:
1. The District shall offer the next vacant full-time
Class III custodian position, anywhere in the
District, to Ms. Jagler if she is qualified for that position.
2. If Ms. Jagler refuses the
first Class III position offered to her as required under Section 1
above, she shall have no more of a right to any other vacant Class III position than any other
bargaining unit employees.
3. If Ms. Jagler accepts the
Class III position offered, she shall serve an 85-working-day trial
period as provided by Article 5, Section 4, of the Labor Agreement. If Ms. Jagler fails to
successfully pass the trial period, she will be returned to her prior position.
4. To be entitled to the position
described in Section 1, Ms. Jagler must correct any deficiencies
in job performance, including personal telephone calls during work time and have, at a
minimum, a satisfactory job evaluation, at the time the position becomes vacant and is to be
offered to her.
5. In regard to the next vacant
Class III custodian position, the Union waives the provisions of
Article 5 of the Labor Agreement and agrees not to file or support any grievance challenging
the District's action in awarding the position to Ms. Jagler.
6. The grievance is withdrawn.
7. The parties understand that
this agreement and settlement is nonprecedential in basis and
cannot be used in any future proceeedings, including grievance or interest arbitration
8. The parties understand that
this settlement and agreement is subject to ratification by the
District Board of Education.
Jagler turned down the first Class III position offered her after execution of this
accepted the next Class III position offered her. She was given a probationary period in that
and successfully completed it.
Danelle Davidowski currently works for the Employer as a Class III Custodian. She
work for the Employer as a part-time Custodian. In April of 1993, she applied for a posted
Custodial position. The Employer initially offered her the position. Another part-time
Howard Hodgkins, grieved the matter, asserting he had more seniority as a part-time
Davidowski. The Employer ultimately withdrew the offer from Davidowski and awarded the
to Hodgkins. Davidowski testified that the then-incumbent Personnel Director informed her
Hodgkins would receive the position based on seniority. Hodgkins testified that the
Director did not inform him why the Employer awarded him the position.
The Grievant testified that the position disputed here is the fourth full-time position at
Greenheck Fieldhouse which has been posted since November of 1997. In November of
Employer posted a Class I and a Class II custodial position. Four part-time custodians,
Grievant, signed these postings. In each case, the employe offered the position had greater
than the Grievant. Sometime after these postings, the Employer posted a full-time position
second shift. The Grievant signed that posting, but the Employer awarded it to another
seniority as a full-time custodian. This opened the full-time employe's position, which
another posting which the Grievant signed. The Employer offered that position to another
employe with greater seniority than the Grievant.
Lee Jorgensen is the Employer's Supervisor of Buildings and Grounds and testified
Employer's normal practice in posting positions is to post a vacancy in all school buildings
and to an
outside employment service. Jim Jaworski is the Employer's Supervisor of Personnel. He
that the Employer may usually award full-time positions to part-time custodians based on
but that the Employer is not bound to do so. In his view, the experience acquired by
custodians enhanced their chances to secure a full-time position.
The Evidence of Bargaining History
Prior to 1985, the unit represented by the Union did not include part-time custodians.
April 18, 1985, Gerald Allain, then the Union's Business Representative, filed with the
memo indicating that the Union had majority support among part-time custodians and wanted
District to voluntarily recognize it as the exclusive bargaining representative for a unit
part-time custodians. The District did not agree to do so.
Sometime later in April, 1985, the Union filed a petition with the Commission,
election in a bargaining unit restricted to part-time custodians. On May 23, 1985, the
issued the following Order directing an election:
That an election by secret ballot shall be
conducted under the direction of the Wisconsin
Employment Relations Commission in the voting group consisting of all regular part-time
employed by the D.C. Everest Area School District . . . for the purpose of determining
required number of such employes desire to be represented by General Teamsters Union
for the purposes of collective bargaining with D.C. Everest Area School District, and
the required number of employes vote in favor of such representation then said employes
merged with the existing bargaining unit consisting of all full-time custodians . . . which
result in a bargaining unit consisting of all regular full-time and regular part-time custodians
. . .
The Commission conducted this election on June 11, 1985 and certified that the
voted eight to nothing to be represented by the Union. After the Commission certified the
this election, Allain approached the Employer to determine if it would be willing to negotiate
separate agreement covering part-time custodians. Jorgensen was then a member of its
team. He testified that the Employer was unwilling to bargain separate agreements for the
and the part-time custodians. He noted that Allain consistently noted that the full-time
not want to create a situation in which a part-time employe could come to exercise greater
rights for a position than could a full-time employe.
In a letter dated September 13, 1985, Allain requested from the Commission an
statement of its "position as to negotiating a separate Labor Agreement for the part time
The then-incumbent Chairman of the Commission responded to Allain in a letter dated
1985, which states:
. . .
(T)he background is as follows. Local 662 has been the
exclusive bargaining representative for
a bargaining unit consisting of all full-time custodians. . . . The parties have a collective
agreement covering said unit with a time period of July 1, 1984 through June 30, 1986. On
1985 the Commission received from Local 662 a petition for election among the part-time
employed by the District. Local 662 and the District stipulated to the conduct of an election
the part-time custodians on the basis that if a majority of said custodians voted for
then the part-time custodians would be included in the existing unit of full-time employes,
that if the part-time custodians voted to be represented by Local 662, the terms and
conditions of the
existing collective bargaining agreement . . .
would not be automatically extended to the
part-time custodians, but rather, would have to be
bargained. On June 20, 1985 the Commission issued a Certification of Results of Election
it certified that the required number of part-time custodians had voted for representation by
662, and therefore, by stipulation of the parties, the part-time custodians were included in the
bargaining unit of full-time employes. Under such circumstances the parties normally then
negotiations over the wages, hours and conditions of employment for the newly accreted
However, the parties could, if they wish, bargain separate terms for the part-time custodians.
. . .
The parties began a period of collective bargaining to seek to address the application of
labor agreement to the part-time employes.
In mid-December of 1985, the parties executed an addendum (the Addendum) to their
1984-86 labor agreement. Throughout this process, the Union insisted that part-time
employes be kept
separate from full-time employes regarding seniority and job security issues. The Addendum
to the labor agreement what presently appears as the first and third sentences of Article 5,
1. These sentences resulted from a Union proposal. At the time of the Addendum's
sentences appeared as the first two sentences of Article 5, Section 1. The first paragraph of
5, Section 5, of the parties' 1984-86 Labor Agreement reads thus:
Section 5. Seniority shall govern which
employee gets the higher rated and newly created jobs
or vacancies, provided that such employee is qualified to perform the job. In the event a
qualifications to do the job arises, such issue shall be taken up between the Employer, the
the employee involved. The intent is to give the senior applicant every reasonable
filling the job vacancy. If the employee is then selected, he shall be given the job on a thirty
working day probationary period. Employees moving from Class III to Class I shall have a
working day probationary period. If the employee cannot handle the new position, he will be
reassigned to his former position at the current rate of pay for that position.
The Addendum revised that paragraph to read thus:
Section 5. Seniority for part-time
employees shall govern which employee gets the newly created
job or vacancy, provided that such employee is qualified to perform the job. Seniority for
employees shall govern which
employee gets the higher rated and newly
created jobs or vacancies, provided that such employee
is qualified to perform the job. In the event a question of qualifications to do the job arises,
shall be taken up between the Employer, the Union, and the employee involved. The intent
is to give
the senior applicant every reasonable consideration in filling the job vacancy. If the
employee is then
selected, he shall be given the job on a thirty (30) working day probationary period.
moving from Class III to Class I shall have a forty (40) working day probationary period. If
employee cannot handle the new position, he will be reassigned to his former position at the
rate of pay for that position.
In the bargaining for a successor to the 1984-86 labor agreement and the Addendum,
added what now appears as the second sentence of Article 5, Section 1. Jorgensen testified
sentence resulted from a Union proposal to "give the part-time people consideration along
people from the outside." (Transcript at 93-94). The language of Article 5, Sections 1 and
5 has not
changed since the execution of the 1986-88 agreement.
The Disputed Position
The position disputed here is a Class I, third shift custodial position at D.C. Everest
School, and was posted on August 4. No full-time employes applied for the position, and
Employer determined that the in-house part-time applicants were sufficiently qualified that it
not interview any outside applicants. The Employer tested and granted interviews to three
employes. In order of seniority, those three applicants were the Grievant, Terry Thomas and
Kasten. Jaworski, Jorgensen and Terry Marcott, the Employer's Custodial Building
conducted the interviews. Although each applicant was considered qualified, the Employer
determined Kasten was the most qualified and awarded the position to him.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Brief
After a review of the evidence, the Union argues that Article 5, Section 5 governs the
grievance, and that the Employer failed to honor its intent by failing to award the position to
The intent of Section 5 "is to give the senior applicant every reasonable consideration in
job vacancy." That it also affords a forty-day probationary period to the selected applicant
underscores the Employer's failure to honor its terms by selecting the least senior applicant.
was the most senior applicant and is qualified to perform the job.
Article 5, Section 5 states a "sufficient ability" seniority clause which, under relevant
precedent, entitles the senior applicant to preference over less-senior applicants provided the
applicant can perform the work. In this case, Kasten's allegedly "more favorable interview .
. . prior
work experience with pools, and . . . 'better overall attitude'" are thus irrelevant to the
application of the labor agreement. The Union concludes "Brown should have been provided
forty day probationary period to display his capabilities."
Even if the language of Article 5, Section 5 was not clear, relevant past practice
the Employer's violation of the labor agreement. From May of 1990 through November of
Employer consistently awarded "a full-time custodian position" to "the most senior part-time
applicant." Beyond this, Employer supervisory employes have openly acknowledged the
That the Employer "failed to present a single instance where it did not follow the practice"
underscores that "the evidence overwhelmingly shows the past practice."
Nor does evidence of bargaining history support any other conclusion. At most, that
underscores that the parties separate full-time and part-time service in the application of
This "protected full-time employees' seniority," but fails to apply here, since there were no
bidders for the position. Bargaining history will not support the Employer's disregard of the
language of Article 5, Section 5.
The Union concludes that "the Arbitrator should order the District to award the Class
position to Craig Brown and make him whole for all losses."
The Employer's Brief
After a review of the evidence, the Employer contends that "(a)pplication of relevant
interpretation principles to the provisions of Article 5 of the Collective Bargaining Agreement
demonstrate that no contract violation occurred." Arbitral precedent establishes that contract
language must be ambiguous to require interpretation, and that ambiguity is established by
but plausible, readings of the contract. Such conflicting and plausible readings of Article 5
here, and thus recourse to interpretive guides is appropriate.
The purpose of interpretive guides is to "determine and give effect to the parties'
the time the governing contract language "was agreed to." Here, "the parties' bargaining
unequivocally establishes that the Union's reading of Article 5 is simply wrong." More
this unit's composition, prior to 1985, was "solely full-time employees." When part-time
sought representation, the Union attempted to have them placed in a separate unit. The
however, ordered an election which merged
full and part-time employes if the part-time employes voted for representation. When
employes voted for representation, the Union sought Commission authorization to "organize
separate bargaining unit comprised solely of the part-time custodians." The Commission
do so. In the negotiations that followed, the parties strictly separated part-time and full-time
custodians regarding contractual benefits. At no time did the parties agree that "an
seniority as a part-time custodian was to be given any weight when filling a full-time
fact, the agreement to add "consideration" for part-time custodians, in Article 5, Section 3,
only the parties' agreement to consider part-time employes together with outside applicants
filling a full-time position.
Reading Article 5 as a whole underscores this conclusion. Article 5, Sections 1, 3
establish a complete separation of the seniority rights of part-time and full-time custodians
respects." Beyond this, if the parties intended seniority to govern the filling of vacancies,
would have been no need for the parties to differentiate between a part-time and a full-time
employee's seniority." Jorgensen's testimony establishes that the separate seniority systems
only to vacancies within each system. Thus part-time seniority governs the filling of
not full-time positions. That the District posts full-time vacancies to outside applicants
underscores that part-time employes acquire no rights beyond "consideration" for a full-time
That Article 5, Section 5 "is certainly not a model of clarity" cannot obscure that the
have agreed in Article 5 that the seniority of a part-time custodian is not a factor to be
when filling a full-time position." The Employer concludes that "the Arbitrator (should)
Grievance in its entirety."
The Union's Reply Brief
The Union contends that even if the language of Article 5 is considered ambiguous,
practice compels granting the grievance. Bargaining history concerning the separate nature
of part-time and full-time seniority has no bearing on the grievance, since "there is no danger
that a part-time
employee will be awarded a job that a full-time employee is entitled to." Since Brown "was
senior of the three part-time employee applicants, and was qualified for the position," Article
demands that he be afforded a probationary period to demonstrate his qualifications. Past
addresses any possible ambiguity on this point, since "the District has always awarded a
position to the most senior qualified part-time applicant." The Jagler and Hodgkins
settlements confirm this, as do comments made by management personnel to Hodgkins at his
Beyond this, the Union contends that the Employer's "principal argument rests on a
misinterpretation of the parties' bargaining history." The Addendum addresses only those
where full-time and part-time employees compete for the same position." Other benefits
favor full-time employes, but "nothing in the Agreement nullifies part-time seniority for job
bidding." In spite
of the Employer's contrary claim, the presence of separate seniority lists has no significance
of competition between part-time and full-time employes for the same position.
The Union concludes by restating its request that "the Arbitrator should order the
award the Class I position to Craig Brown, and make him whole for all losses."
The Employer's Reply Brief
The Employer argues that the evidence will not support Union claims that "a past
exists of awarding full-time custodian positions to part-time custodians based upon seniority
if no full-time custodian has applied for the position." The Jagler settlement agreement did
competing claims of a part-time and a full-time custodian, and was, by its terms,
in nature." The Hodgkins settlement agreement is, at best, sketchy regarding why
claim for the position was not accepted. The evidence falls short of establishing that the
1997 vacancies were filled on the basis of seniority. Beyond this, the Employer contends
evidence shows only that supervisory comments acknowledging a past practice are, at best,
Nor can the probationary period language of Article 5, Section 5, be applied to the
since that language applies only to movement from Class III to Class I. In any event,
precedent precludes reading that section as a "'try out' a job" provision: "Rather, pursuant
provision, the Grievant was only entitled to a forty (40) day probationary period in the
position if he
had been selected to fill the position."
At most, the labor agreement requires the Employer to "give the Grievant
the full-time position." The Employer did so, and its decision is owed deference. Arbitral
establishes that "(t)he offended employee bears the burden of proof of demonstrating that an
employer's determination regarding his/her qualifications was arbitrary and capricious." The
establishes the Employer had objective, good faith reasons for selecting Kasten. The
concludes by repeating its request that "the Arbitrator dismiss the Grievance in its entirety."
The parties agree that the provisions of Article 5, particularly Sections 1 and 5,
stipulated issue. The language of those sections cannot, however, be considered clear and
unambiguous. It is not apparent on the face of Article 5, Section 1 what
"consideration" means. No
more apparent is how this reference is to be squared with the reference in Article 5, Section
the Employer is "to give the senior applicant every reasonable consideration." Beyond this,
provisions of Article 5, Section 5, are ambiguous. The Union contends that the first
Article 5, Section 5, clearly governs competition between part-time applicants for the same
That sentence awards "the newly created job or vacancy" to the senior "part-time" employe.
second sentence, however, awards "newly created jobs or vacancies" to the senior "full-time"
employe. Presuming a single vacancy is in dispute, the two sentences award it to different
This conflict can be resolved by implying that the sentences separately refer to vacancies in
part-time positions. This implication is plausible, but no less plausible is the assertion that
sentences refer to employe seniority rights to either type of position. The plausible, but
interpretations establish that the sentences are not, on their face, clear and unambiguous.
The most persuasive guides to the interpretation of ambiguous language are past
bargaining history, since each focuses on the conduct of the parties whose intent is the source
the goal of contract interpretation. The Union points to past practice as the most reliable
the evidence falls short of establishing a binding practice. Union witnesses testified that the
consistently awards positions based on seniority and that supervisors have acknowledged the
Jaworski and Jorgensen acknowledged that seniority plays a role in the filling of positions,
the Employer does promote from within. This falls short, however, of establishing that the
views Article 5 as binding it to seniority in every instance. No employer witness
binding practice on this point. Nor can the specific instances covered in testimony bridge
Paragraph 7 of the Jagler settlement agreement precludes using it as evidence of a binding
To conclude otherwise would only serve to chill future settlement discussions.
The Davidowski/Hodgkins dispute in April of 1993 supports the Union's position.
of the settlement is, however, less than apparent. Davidowski stated the resolution was
seniority concerns, but Hodgkins noted that no one advised him why the offer to Davidowski
withdrawn. In any event, this single instance falls short of demonstrating a binding practice.
of the 1997 openings arguably demonstrate the preference of a more senior part-time
a less senior part-timer. No less arguable, however, is the Employer's position that it made
selections based on the applicant's qualifications. In any event, the practice asserted by the
is difficult to square with the Employer's normal practice of posting positions to outside
in addition to internal bidders. On balance, the evidence of past practice falls short of
Employer agreement to be bound by seniority in considering competing part-time applicants
The Employer's use of bargaining history is more compelling, but cannot be
determinative. As the Employer asserts, bargaining history establishes that the parties
5 to rigidly separate the seniority rights of full-time and part-time employes. The difficulty
evidence is that this separation of the rights of full-time and part-time employe rights does
unequivocally establish the competing rights of part-timers regarding a vacancy for which
no full-time or qualified outside applicants.
Ultimately, the language of Article 5, Sections 1 and 5 must be interpreted to give
to each provision in light of relevant practice and bargaining history. The evidence of
history and past practice is not binding on this record, but does highlight the need to set
which Article 5 must be applied. For example, the Employer's past posting of vacancies to
applicants precludes accepting the broad assertions of the Union regarding the role of
Against this background, the application of Article 5 to the grievance must be narrow
focused on the facts posed by the grievance. As noted above, the Employer determined that
part-time applicants would be considered for the August 4 posting. The Employer
each of those applicants was qualified. Thus, it is neither necessary nor appropriate to
Article 5 is to be applied to competition between qualified internal and external applicants.
then, turns on the role of seniority between part-time applicants for a full-time position for
there are no full-time or qualified outside applicants.
The grievance starkly poses whether seniority plays any role in distinguishing
part-time applicants for a full-time position. As established in the Board's response to the
Employer did not consider itself to be bound, in any fashion, by seniority in filling the
vacancy. Under the Board's view, seniority is not a factor in considering part-time
applicants for a
full-time position. The issue thus posed is whether seniority between qualified part-time
must be considered in awarding a full-time position for which there are no full-time or
The Board's view that seniority plays no role can be squared with Article 5, Section
cannot be squared with the language of Article 5, Section 5. As established by bargaining
"consideration" under Article 5, Section 1, refers to competition between part-time and
applicants for the same position. There is no persuasive evidence that the Employer failed to
"consider" the part-time applicants by administering the test/interview process to each.
In the absence of the language of Article 5, Section 5, the Employer's reading of
Section 1 would warrant the denial of the grievance. The language of Section 5, however,
difficulties which evidence of bargaining history cannot resolve in favor of denying the
Initially, the existence of a seniority preference must be acknowledged. Section 1 of Article
for example, that "Seniority shall prevail". This general reference is not determinative here,
prefaces the broad language of Section 5.
Section 5 of Article 5 broadly states "(s)eniority of part-time employees shall govern"
employe "gets the . . . vacancy." The mandatory nature of the preference is apparent.
the language does not distinguish between competition between part-time employes for
for part-time positions. The Employer forcefully argues that the parties' established desire to
full-time from part-time employes warrants concluding that the first and second sentences of
5, Section 5 refer to separate vacancies. The first sentence refers to part-time positions,
second refers to full-time. Whatever support the assertion has in bargaining history is,
lacking in the language of the two sentences. The subject of each of those sentences is
which under Section 1 is the attribute of an individual employe, not a position. Thus, the
of the sentences makes it difficult to imply that the role of seniority for part-time employes is
solely by the position sought by the employe.
More significant than this, however, is the fourth sentence of Section 5. As the
points out, evidence of the parties' intent is the goal of interpretation. In this case, however
instructive bargaining history might be, the express statement of "intent" in Section 5 must
considered a more persuasive source of interpretation. The sentence states the parties' intent
give the senior applicant every reasonable consideration in filling the job vacancy." As noted
the Board approved its administration's stated position that seniority plays no role in the
of part-time employes for a full-time position. This view, although supported by bargaining
cannot be squared with the fourth sentence of Section 5.
The fourth sentence of Article 5, Section 5 was in existence prior to the negotiation
Addendum. Arguably, this could be read to limit it to full-time employes. The Addendum
demonstrates, however, that the parties carefully stated those contract provisions which apply
separately to part-time and to full-time employes. The first and third sentences of Article 5,
1 seal part-time employe seniority from that of full-time employes. The second sentence of
1 applies only to part-time employes. Similarly, Section 3 carefully distinguishes the layoff
governing full-time and part-time custodians. Other references in Article 5 are, however,
applicable to full or to part-time employes. Thus, the subsections of Section 3 dealing with
of Layoff," "Order of Layoff," and "Recall" refer generally to "employee" or to
Presumably, this reflects that the rights are common to unit employes. Such general
throughout Article 5 and
pre-dated the negotiation of the Addendum. Thus, the general statement of intent in
sentence of Article 5, Section 5 cannot persuasively be restricted to full-time employes.
must be applied to unit employes generally. It follows that, as the "senior applicant," the
was entitled to "every reasonable consideration." The Employer's failure to consider
seniority at all
thus violates Article 5.
There is some evidence that the Employer considered Kasten more qualified than the
Grievant. While this may pose a fine issue in a future case, it poses no issue of
The Grievant was qualified for the posted position. At what point a difference in
overcome "every reasonable consideration" in favor of a senior applicant is an inevitably
There is no persuasive evidence of a significant disparity in qualifications in this case.
The remedy appropriate to this violation requires limited discussion. The grievance
a probationary period for the Grievant to prove his qualifications. This is granted below.
seeks a make whole remedy in its brief. Such relief is, at this point, speculative, and the
the point conditionally. Beyond this, the parties may have a difference on the appropriate
the probationary period. The Award entered below notes the remedy in general terms and
a retention of jurisdiction should such differences not be resolvable by the parties.
Before closing, it is appropriate to tie the conclusions stated above more closely to
arguments. The Union's contention that the provisions of Article 5 state a "sufficient ability"
has support in arbitral precedent. However, characterizing contract language by type has its
More specifically, the general "typing" of a clause can obscure the specific language used by
bargaining parties or their unique practice or bargaining history. The language posed here is
as is the evidence of its bargaining history. The interpretive task posed here is to give effect
was bargained by these parties, not by bargaining parties generally. More to the point, the
Employer's posting of positions to outside applicants poses greater complication on this
the Union acknowledges.
The Employer's reliance on bargaining history is forceful, and sets limits to the
stated above. The separation of full-time and part-time seniority, however, cannot obscure
general intent of Article 5 "to give every reasonable consideration" to "the senior applicant."
competition involved here pitted three qualified, part-time applicants against each other for
position. To disregard the Grievant's seniority reads the fourth sentence of Article 5,
Section 5 out
The Employer notes that it has guarded its ability to consider outside applicants for
jobs because the pool of applicants for part-time positions may not be sufficient to rely solely
promotion from within. This potentially significant issue is not posed on these facts, which
three qualified part-time applicants and no competing outside applicants.
The District did violate the collective bargaining agreement when it did not award a
third shift full-time custodial position which was posted on August 4, 1998, to either of the
As the remedy appropriate to the District's violation of Article 5, it shall afford Craig
as the senior qualified applicant for the Class I third shift full-time custodial position which
posted on August 4, 1998, the probationary period required by Article 5. If the Grievant
completes that probationary period, then the District shall make him whole for the wages and
he would have earned but for its violation of Article 5.
For the sole purpose of resolving any dispute regarding the implementation of the
noted above, I will retain jurisdiction over the grievance for a period of not less than
from the date of issuance of this Award.
Dated at Madison, Wisconsin, this 30th day of August, 1999.
Richard B. McLaughlin, Arbitrator