BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FEDERATION OF NURSES AND HEALTH
LOCAL 5001, AFT, AFL-CIO
ST. FRANCIS HOSPITAL
Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, by
Attorney Jeffrey P. Sweetland, appearing on behalf of the Union.
Michael, Best & Friedrich, by Attorney Thomas W. Scrivner,
appearing on behalf of the Hospital.
The Federation of Nurses and Health Professionals, Local 5001, AFT, AFL-CIO,
Union, and St. Francis Hospital, Inc., herein the Hospital, requested the Wisconsin
Relations Commission to designate the undersigned as an arbitrator to hear and to decide a
between the parties. The undersigned was designated as the arbitrator. Hearing was held in
Milwaukee, Wisconsin, on April 21, 1999. A copy of a stenographic transcript of the
received on June 1, 1999. Post-hearing briefs were exchanged on July 21, 1999.
The parties were not able to stipulate to the issues and agreed that the arbitrator
the issues in his award.
The Union stated the issues as follows:
Did the Hospital violate the collective bargaining agreement by
requiring Ruth Ventela, a limited
part-time employe, to work holidays? If so, what is the appropriate remedy?
The Hospital stated the issues as follows:
Whether the grievance was filed by the Union in a timely manner
pursuant to Article 23 of the
collective bargaining agreement? Whether Article 10.02 of the collective bargaining
violated when Ruth Ventela, a limited part-time employe, was scheduled to work on
1997? If so, what remedy, if any, is appropriate?
The undersigned believes the following to be an accurate statement of the issues:
Was the grievance timely filed? If so, did the Hospital violate
Section 10.02 of the Support
Service collective bargaining agreement when it scheduled Ruth Ventela, a limited part-time
to work holidays? If so, what is the appropriate remedy?
The Hospital employed approximately 1,800 employes in 1998, many of whom were
represented by the Union in three separate bargaining units. There were approximately 550
in the RN (registered nurses) unit, which unit had existed since 1985. The Technical unit
certified in early 1996 and contained just over 200 employes. The Support Service unit was
in December 1996 and contained approximately 600 employes.
The Hospital and the Union have had collective bargaining agreements covering the
since 1985. In the RN's 1994-96 agreement, the parties adopted an A/B schedule for
to work on the six specified holidays.
A memorandum, dated January 17, 1995, set forth the written agreements reached by
Hospital and the Union on several issues, including, inter alia, the following
statement: "Limited part-time employees are not required to work a specific number (or any)
In 1996, Lori Kellerman-Bush, a RN, went from RFT (regular full-time) status to
(limited part-time) status. In the fall of 1996, Kellerman-Bush asked her supervisor about
requirement for LPT employes to work holidays. The supervisor advised her that she was
to work on holidays. Kellerman-Bush worked the Thanksgiving holiday in 1996 and the
Day holiday in 1997 as scheduled. In January of 1997, she contacted Barbara Janusiak, the
chief steward for the RN unit. Janusiak discussed the matter with Ed Malindzak, the
Director of Human Resources. In March of 1997, Kellerman-Bush was told by her
she would not be required to work on holidays.
The Hospital bargained a separate collective bargaining agreement with each of the
bargaining units in 1996-97. Bargaining with the RN unit began in mid to late 1996 for a
agreement. During those negotiations, the Hospital proposed to include the LPT employes in
holiday scheduling language. The Union did not agree to said proposal. The parties had
holiday scheduling language for the RN unit prior to December of 1996. Bargaining for the
unit began in mid-1996 and the holiday scheduling language had been agreed to prior to the
commencement of the negotiations with the Support Service unit. Negotiations with the
Service unit began in March or April of 1997.
On July 6, 1997, the parties signed separate collective bargaining agreements for each
three units covering the period of 1997-2000. All three agreements have identical definitions
regular full-time employes (RFT), regular part-time employes (RPT) and limited part-time
(LPT). All three agreements recognize the same six regular holidays. Each of the
includes a provision with respect to the obligation of employes to work on the holidays. The
language in the RN agreement refers to full time and regular part-time employees only and
them to work six and three holidays per year, respectively, on the A/B schedule. The
agreement holiday language refers to employes maintaining the "current practices" previously
before the agreement. The Service agreement incorporates the language from both the RN
Technical agreements. Both parties agreed that to maintain consistency within the
possible, the same language would be utilized in each of the agreements.
Prior to the commencement of the 1996 negotiations, the Union requested and was
set of all relevant written Hospital policies. A manual containing those Hospital policies is
each unit of the Hospital. Those policies include policy 8.8, which has existed since 1982
last updated on June 15, 1997. Policy 8.8 contains, inter alia, the following
statement: "LPT (limited
part-time) employees are expected to work two of the six major holidays with regular rate of
During the negotiations for the Service agreement, the parties did not discuss the
LPT holiday obligations. Neither did the parties discuss either policy 8.8 or the 1995
during the negotiations.
The grievant, Ruth Ventela, became a limited part-time (LPT) employe at St. Francis
in March of 1994 working in the 3 West unit. In March of 1997, the 3 West and
5 East units were
merged into the 6 Center unit. Ventela became part of the 6 Center Oncology unit as a
Coordinator. From March of 1994 to the present, Sue Milewski was her supervisor.
Ventela is a
member of the Service unit.
Unit 6 Center utilizes an A/B schedule for all of its RFT and RPT employes.
scheduled to work two holidays each year since she began her employment as an LPT
Ventela was assigned to work Schedule B in 1995, and worked on Memorial Day and
Ventela was assigned to Schedule A in 1996. In 1997 she was again assigned to Schedule B,
schedule included Christmas. Ventela has never worked three holidays in any given year
time she has worked as a LPT employe for the Hospital.
On December 8, 1997, the schedule for the employes in the 6 Center unit was posted
28-day period beginning on December 21, 1997, which showed Ventela was scheduled to
the Christmas holiday, December 25, 1997. On December 18, 1997, Ventela spoke with
her supervisor, because she had heard that LPT employes did not have to work holidays.
said that the agreement was silent on the issue, so she would continue to rely on policy 8.8
Ventela was expected to work the Christmas holiday as scheduled. Milewski also told
she would not receive holiday pay for working on Christmas Day. Ventela worked the
holiday. Ventela also talked to a Union steward, Gus Holtz, about working on holidays. On
before December 31, 1997, Holtz spoke with Milewski regarding the issue. Milewski
fact that the contract was silent and thus LPT employes were required to work scheduled
Milewski did provide Holtz with a copy of policy 8.8.
Ventela filed the grievance on January 16, 1998, after receiving her paycheck
Christmas holiday. She did not receive holiday pay for working on Christmas. Ventela has
to be scheduled to work two holidays a year since she filed her grievance.
. . .
Without limiting the generality of the
foregoing, and except as expressly and specifically limited
or restricted by a particular provision of this Agreement, the Hospital's management rights
the right to manage the Hospital and determine the work to be done; the time and manner in
the work will be
done; the right to schedule working hours; (the right to direct the
working forces, including the
right to hire, layoff, recall, classify, transfer, promote or demote employees; the right to
discipline and to discharge for just cause any employee; the right to determine and
redetermine qualifications of employees and, after consultation with the Union, to make
reassignments based on such determinations; the determination of services to be rendered or
the determination of and the right to make changes to services to be rendered or supplied; the
determination of and the right to make changes in processes, techniques, methods and means
performing the work including the right to subcontract work; the selection or promotion of
to supervisory or other managerial positions or to positions outside the bargaining unit; the
have supervisors or others perform any work deemed necessary by the Hospital (but not for
and purpose of eroding the bargaining unit); the establishment of uniform performance
scheduling of work and the determination of the number and duration of said shifts and the
the work force; the combination or splitting of departments or units; the determination of
health and property protection measures for the Hospital; the establishment, modification and
enforcement of standards of care; the assignment of employees from one task to another, or
unit department to another, or from one location to another, or from one shift to another, to
needs of the Hospital from time to time; and the right to reasonably make, modify, or change
publish or enforce employment rules, policies and practices.
. . .
Full-time employees will receive the
following paid holidays: January 1 (New Year's Day),
Memorial Day, Fourth of July, Labor Day, Thanksgiving Day, December 25 (Christmas
two personal holidays. Regular part-time employees will receive three (3) paid holidays and
personal holiday. Holiday pay is eight (8) hours pay for regular full-time and regular
(a) In departments that use the A/B system
of scheduling holidays the following rules will apply.
Full-time and regular part-time employees will rotate holiday off schedules as follows:
1997 and 1999
Memorial Day Fourth
Christmas Day New Year's
Fourth of July
Thanksgiving Day Labor
New Year's Day (1999)
. . .
(b) In departments that do not use A/B holiday scheduling, current
practice shall remain in effect
unless there is an operational need to change.
. . .
. . .
B. The problem solving process shall be subject to the following
Step One: The
employee and immediate supervisor are encouraged to meet, discuss and resolve
problems that may be covered by this procedure. Regardless of whether such a meeting
the problem shall be reduced to writing and signed by the employee(s) and Union
The problem must be submitted to the supervisor in writing within fourteen (14) calendar
days of the
date the employee became aware or should have become aware of the event giving rise to the
problem. The supervisor shall respond in writing within seven (7) calendar days of receipt
written presentation of the problem.
. . .
Rules of Construction
In construing this Agreement, past practice
shall not be considered except to the extent necessary
in order to construe a provision of this Agreement that is found to be ambiguous, and past
shall not be or become part of this Agreement.
Nothing shall be deemed a past practice
unless it meets each of the following tests:
(1) long continued;
(2) certain and uniform;
(3) consistently followed;
(4) generally known by the parties hereto;
(5) not in opposition to the terms and
conditions in this Agreement.
. . .
POSITION OF THE UNION
The grievance was filed on a timely basis because the issue to be resolved is a
violation and the grievance, as presented to the arbitrator, does not seek any retroactive
Rather, the grievance simply seeks prospective relief through a ruling that Ventela need not
holidays in the future. Ventela has remained on the holiday schedule and thus the issue is
the scheduling of the 1997 Christmas holiday, but also of any holiday she is scheduled to
Section 11.02 of the RN agreement sets forth the holiday work obligations for RFT
employes. LPT employes are not mentioned in said provision. The parties issued a
in January of 1995 to clarify the obligations of LPT employes to work on holidays. Thus,
there is no
need for the arbitrator to interpret Section 11.02, since the parties have already done that
their agreement as contained in the 1995 memorandum. Such a conclusion is supported by
bargaining history. In the negotiations for the 1997-2000 RN agreement, the Hospital sought
the term "limited part-time employees" added to the list of employes subject to the A/B
working holidays. The Union rejected the proposal and the Hospital withdrew the proposal.
Policy 8.8 was in existence prior to the 1995 memorandum. A unilaterally
must yield to an agreement when the two are in conflict. Therefore, policy 8.8 does
not control in
the instant matter.
Past practice shows that when one LPT RN, Lori Kellerman-Bush, complained about
scheduled for holiday work, the Hospital agreed with the Union that she would not be
work any holidays. Such a decision was consistent with the 1995 memo and the withdrawal
Hospital's proposal to add LPT employes to Section 11.02 in the 1996 negotiations for the
agreement. In contrast, the decision was contrary to Hospital policy 8.8.
When the Service agreement was negotiated, the parties wanted to maximize
uniformity between the three contracts. When the same language was used in different
parties intended it to have the same meaning. Here the parties chose to have the RN
language apply to certain departments, while other departments would follow the Technical
agreement language. Because Unit 6 center uses an A/B schedule, then Section 10.02 (a) of
Service agreement must be given the same meaning as Section 11.02 of the RN
Consequently, LPT's on Unit 6 center who are in the Service unit are exempted from the
of working any holidays.
The grievance should be sustained. The arbitrator should declare that, under
(a), Ventela, as an LPT employe, is not required to work any holidays.
POSITION OF THE HOSPITAL
Ventela failed to file the grievance within 14 calendar days following any of several
each of which should have started the 14-day period. The schedule was posted on December
at which time Ventela should have been aware of the issue. Ventela was informed by
December 18, 1997, that she was expected to work on December 25, 1997, and that she
receive holiday pay. Ventela did work on December 25. The Union was advised, on or
December 31, 1997, of the Hospital's position concerning Ventela having to work on
Because the grievance was filed on January 16, 1998, Ventela failed to meet the 14 calendar
limit based on any of the above dates.
Ventela's grievance does not constitute a continuing grievance, because the Union
on her specific situation rather than the membership in general. Even if the grievance was to
considered a continuing grievance, it still had to be filed within 14 calendar days of a holiday
The language in Article 3 of the agreement is clear and unambiguous that the
retained the right to schedule holiday work for LPT employes. Article 10 of the agreement
refer to LPT employes. Article 28 of the agreement prohibits the parties from looking
language of the agreement when the language in question is clear. Based on the express
the agreement, the arbitrator must find that management has the right to schedule LPT
work holidays and must deny the grievance without resorting to technical rules of
The bargaining history demonstrates that the Hospital did not agree to restrict its
schedule LPT employes to work on holidays during the 1996-97 negotiations. Although the
opposed adding LPT employes to the language of the RN agreement under 11.02, the Union
proposed to exclude the LPT employes from working holidays, thereby endorsing the
Both the A/B scheduling language of the RN agreement and the current practice language of
Technical agreement were included in the Service agreement. This was done to ensure that
Service employes would remain on the same holiday schedule they had prior to the
bargaining of an
agreement. Because 6 Center had been scheduling LPT employes to work two holidays per
prior to the 1996-97 negotiations, it was the intent of the parties to continue with this
The Union's reliance on the RN negotiations as the controlling source of
interpretation of the
Service agreement is misplaced. The language in the Service agreement was drawn from
RN and the Technical agreements with the intent to allow holiday scheduling to continue as it
been done. Further, the Union never raised the issues of either extending the 1995
the Service employes or modifying policy 8.8
Past practice demonstrates that the Service LPT employes have always had the
of holiday work. The holiday language of 10.02 (b) captures this expectation with the
practice" language. The LPT employes are not part of the A/B system of holiday
LPT employes in the 6 Center unit have been consistently required to work only two, rather
three, holidays per year including either Christmas or New Year's Day and a second holiday
by the employe. This is unlike the A/B scheduling system which requires employes to work
three pre-assigned holidays a year. In addition to Ventela, two RN LPT employes in the 6
Center unit, Grefe
and Aussperung, have been scheduled and have worked two holidays per year since at least
without filing any grievances.
The 6 Center unit practice of scheduling of LPT employes to work on holidays is
throughout the Hospital. No LPT employes have ever filed a grievance over the
Hospital practice of scheduling LPT employes to work holidays. It is clear from the
1995 memorandum was intended to apply only to RNs.
Based on the foregoing, the grievance should be denied.
The first issue that must be addressed is whether the grievance was filed in a timely
The undersigned concludes that the grievance was timely filed. Due to the fact that Ventela
required to continue working holidays, the grievance is of a continuous nature. Although the
grievance originally was filed over the scheduling of Ventela to work the Christmas of 1997
Ventela has remained on the holiday work schedule and has been
required to work additional holidays since the 1997 Christmas holiday. If the
was accepted and the instant grievance was denied for being untimely filed, then Ventela, or
LPT employe could file a new grievance for the same reason that the instant grievance was
Such an action would require the parties to duplicate the procedure followed in the instant
as to receive a decision on the same issue as is presented by the merits of the instant matter.
foregoing reasons, the grievance is found to have been timely filed and to be ripe for
The next issue to be determined is whether the Hospital violated the Service
it scheduled Ventela to work holidays. Section 10.02 of the agreement is silent regarding
since the language only refers to full-time and regular part-time employes and does not
limited part-time employes. Article 3.02 of the agreement sets forth the Hospital's general
schedule employes. Because the agreement is silent with respect to requiring LPT employes
on holidays, the undersigned will consider the Union's argument that the parties have
agreement as it applies to LPT employes.
Under Article 28 of the Service agreement, a past practice can only be considered
agreement is found to be ambiguous. In addition, five requirements must be met in order to
past practice exists. Those requirements are: (1) long continued; (2) certain and uniform; (3)
consistently followed; (4) generally known by the parties hereto; and (5) not in opposition to
terms and conditions of the Agreement.
The threshold requirement to consider a past practice has been met. The agreement
ambiguous with regard to LPT employes working on holidays. The undersigned does not
the Union's assertion that the 1995 memorandum precludes the consideration of the alleged
practice when interpreting the language of the agreement. The 1995 memorandum is not
in the agreement. Thus, it can only be considered on the same basis as the alleged past
as a means to clarify ambiguous language. The parties did not discuss either the 1995
or policy 8.8 during the negotiations culminating in the agreement for the Service unit. In
of a specific discussion of the 1995 memorandum in those negotiations, the undersigned is
persuaded that the parties mutually intended that the 1995 memorandum would apply to LPT
employes in the Service unit. That memorandum was adopted for the RN unit prior to the
of the Service unit. The Hospital's proposal to add LPT employes to the A/B rotation was
the negotiations for the RN unit. There was no proposal concerning holiday work for LPT
in the negotiations for either the Service unit or the Technical unit from either the Union or
Hospital. Kellerman-Bush was a LPT employe in the RN unit. The Hospital's agreement to
her from the requirement to work on holidays appears to be consistent with the 1995
and the negotiations history for the RN unit. Such a background fails to establish that the
were in agreement to have the 1995 memorandum apply to the Service unit.
The Hospital has demonstrated that a past practice exists with regard to scheduling
employes to work on holidays. This past practice is long continued as demonstrated by the
LPT employes under the supervision of Milewski have been scheduled to work two holidays
for a number of years. In addition to Ventela, two RN LPT employes have worked two
year in the 6 Center unit. It was the uncontradicted testimony of Milewski that employes are
aware of the requirement to work on holidays at the start of their employment on the 6
The Hospital presented evidence to show that numerous, ranging from 5 to 9, LPT employes
Service unit worked on each of the six holidays listed on the A/B schedule beginning with
Day in 1997 through New Year's Day in 1998. Thus, the practice is certain and uniform
and has been
consistently followed over a long period of time. As discussed above, the Union had a copy
Hospital policies and should have been aware of policy 8.8. Moreover, the extensive and
use of LPT Service unit employes to work on holidays also should have made the Union
aware of the
practice. Furthermore, because the agreement is silent with regard to the scheduling of LPT
employes to work on holidays, the past practice is not in opposition to the agreement.
The past practice offered by the Union fails because it does not meet all the
established by Article 28. Although LPT RN Kellerman-Bush was not required to work
pursuant to the 1995 memo, this practice was not consistent with the scheduling of other LPT
employes to work holidays. Ed Malindzak, the former Director of Human Resources for the
until March of 1999, testified that LPT employes, including RN's, were scheduled to work
in both 1997 and 1998, just as they had been scheduled in prior years. No grievances have
filed regarding this practice. Thus, the alleged practice of not requiring RN's to work
pursuant to the 1995 memo does not meet the requirements to establish the existence of a
practice which would apply to the Service unit.
Although the 6 Center unit utilizes the A/B system, it does not do so for all its
employes are not required to work six or three holidays per year nor are they required to
pre-assigned holidays as are the employes under the A/B schedule. Rather, the LPT
a modified A/B schedule. Thus, the current practice is to schedule the LPT employes to
work on two
holidays per year, one of which must be Christmas or New Year's Day and the other to be
employe's choice. Such a practice is similar, but not identical, to the A/B schedule for RFT
employes. The agreement confers the right to schedule employes according to the current
that had been utilized. Because this system has been used consistently for an extended period
it constitutes a current practice.
Based on the foregoing and the record as a whole, the undersigned enters the
That the grievance filed by Ruth Ventela was filed in a timely manner; that the
not violate Article 10 of the Service collective bargaining agreement by scheduling Ruth
limited part-time employe, to work holidays; and, that the grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 16th day of September, 1999.
Douglas V. Knudson, Arbitrator