BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARATHON COUNTY HIGHWAY DEPARTMENT
LOCAL 326, AFSCME, AFL-CIO
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, appearing on
behalf of Marathon County Highway Department Employees Local 326, AFSCME, AFL-
Ruder, Ware & Michler, S.C, by Attorney Dean R. Dietrich,
500 Third Street, P.O. Box 8050, Wausau, Wisconsin 54402-8050, appearing on behalf of
Marathon County Highway Department Employees Local 326, AFSCME, AFL-CIO,
hereinafter Union, and County of Marathon, hereinafter County, are parties to a collective
agreement that was in effect at all times relevant to this proceeding and which provides for
binding arbitration of certain disputes. The Union, by request to initiate grievance arbitration
by the Commission on April 26, 1999, requested the Commission to appoint either a staff
or a Commissioner to serve as Arbitrator. The Commission appointed Paul A. Hahn as
on July 8, 1999. (The arbitration had been originally assigned to James R. Meier on April
and was transferred to Paul A. Hahn due to a scheduling conflict). Hearing in this matter
on July 21, 1999 in the Personnel Department conference room of the Marathon County
Wausau, Wisconsin. The hearing was not transcribed. The parties filed post hearing briefs
were received by the Arbitrator on September 2, 1999. The parties were given the
file reply briefs but declined to do so. The record was closed on September 17, 1999.
The Union did not submit a statement of the issue.
Whether the County violated the Labor Agreement when it
assigned the responsibility of Crew
Chief for the Bridge Crew on the basis of management discretion and did not follow the job
article for such assignment. If so, what is the appropriate remedy?
I adopt the issue as stated by the County as being a reasonable description of the
presented by the record.
Article 1 Recognition
The County recognizes the Union as the exclusive bargaining
representative for all regular full-time and regular part-time employees of the Marathon
County Highway Department excluding
supervisory, professional and office personnel, the commissioner, assistant commissioner,
assistant engineer, shop supervisor, patrol superintendent, assistant patrol superintendent, and
purchasing agent for the purposes of conferences and negotiations with the employer or its
representative on questions of wages, hours and other conditions of employment.
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
2. To manage and direct the
employees of the department.
3. To hire, promote,
transfer, assign, or retain employees in positions within the
. . .
6. To determine the size
and composition of the work force.
. . .
Any unreasonable application of the
management rights shall be appealable by the Union through
the grievance and arbitration procedure.
Article 3 Grievance
1. Definition of a Grievance: A
grievance shall mean a dispute concerning the
interpretation or application of this contract.
. . .
. . .
C. Arbitration Hearing:
the arbitrator shall meet with the parties at a mutually agreeable
date to review the evidence and hear testimony relating to the grievance. Upon completion
review and hearing, the arbitrator shall render a written decision to both the County and the
which shall be final and binding upon both parties.
. . .
F. Decision of the
Arbitrator: The arbitrator shall not modify, add to or delete from the
express terms of the agreement.
. . .
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
boards the name of the employee who is awarded a posted job and also provide a copy to the
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.
. . .
APPENDIX A SALARY SCHEDULE
EFFECTIVE January 1, 1997
. . .
Crew Chief: The following premiums shall be
added to the hourly rate of pay for employees
assigned to perform in the role of a "crew chief":
Bridge Crew Chief
- 60 cents per hour
Shop Crew Chief
- 60 cents per hour
Paving Crew Chief
- 35 cents per hour
Construction Crew Chief
- 35 cents per hour
Asphalt Plant Crew Chief
- 35 cents per hour
When the Crew Chief is on vacation and the
crew is operating, the senior employee shall be
assigned crew chief responsibility and paid the hourly premium.
STATEMENT OF THE CASE
This grievance involves the Marathon County Highway Department and Highway
AFSCME Local 326, representing the employes set forth in Article 1 Recognition.
(Jt. 1) The
Union alleges a contractual violation by the County when it posted a Trades Technician II
in the Highway Department and did not include the assignment of Crew Chief for the Bridge
to the person filling that position. The posting was on December 22, 1998. (Jt. 2) The
a grievance on December 30, 1998 alleging that the Trades Technician II position was not
properly and that the County violated the collective bargaining agreement by appointing the
Technician II Crew Chief but not by
seniority in violation of Article 7 Job Posting. (Jt. 2) On December 30, 1998
the grievance was
denied by Highway Commissioner Speich in a memorandum to Union President Mike King.
By letter dated February 26, 1999, County Personnel Director Karger denied the grievance.
stated that Article 7 Job Posting does not address the posting of Crew Chief
Crew Chief assignments are assigned to employes as referenced in Appendix A
(Jt. 1) The Union processed the grievance to the County Personnel Committee by letter
1, 1999; the grievance was denied by the County Personnel Committee on April 5, 1999.
Notification to the Union was sent by Personnel Director Karger on April 7, 1999. (Jt. 2)
Marathon County operates a Highway Department. As part of the operation, the
what is called a Bridge Crew which is supervised by a Leadman or Crew Chief. Prior to the
1995-1997 contract negotiations, leading to the contract in place for this arbitration, a Crew
a premium of 5 cents per hour when the employe was functioning as Crew Chief. (Jt. 1 and
On December 22, 1995 the County posted a Trades Technician II position; the posting
the labor agreement stated that "the successful bidder for this position will be appointed the
of the Bridge Crew." (Co. 2) At that time, the County had one Trades Technician II
collective bargaining agreement, Article 7, Section 3 provides that "in filling a vacancy, the
signing with the greatest seniority in the Department who can qualify shall be given the
1) Employe Mike Plahetka, the senior and most qualified employe, was the successful
became the Trades Technician II and Leadman of the Bridge Crew. (The parties at hearing
that Leadman and Crew Chief are synonymous).
During the negotiations for the 1995-1997 labor agreement, the Union proposed that
Chief language be revised to provide that the Crew Chiefs, including the Bridge Crew Chief,
receive an extra 35 cents per hour and that the position of Crew Chief would be filled
pursuant to the
job posting procedure of Article 7. (Co. 3) The parties reached tentative agreement for a
labor agreement, ultimately ratified by the Union, wherein the language relating to Crew
modified to provide that Bridge Crew Chief would receive a 60 cent per hour premium and
premium would be given to employes "assigned" to perform the role of a "Crew Chief." The
settlement further provided, in a separate paragraph, that when the Bridge Crew Chief is on
and the Bridge Crew is operating, the senior employe shall be assigned Crew Chief
paid the hourly premium. (Co. 4 and 5)
During 1998, as part of a Highway Department reorganization, the Highway
added two Trades Technician II positions making a total of three positions. On
December 22, 1998,
the Highway Department posted for a Trades Technician II position. (Jt. 2) There was
in that posting of a Crew Chief's duties being assumed by the successful bidder for that
Technician II position. No one bid for the Trades Technician II position. The
position came open
by the resignation of Plahetke. The County did not, because no one posted for the position,
Trades Technician II position from the posting and assigned the Crew Chief duties to a
senior employe. The Union then
filed the aforementioned grievance in this matter as the Crew Chief for the Bridge
Crew was being
appointed by the County rather than being selected through a job posting and by seniority
The parties processed the grievance through the contractual grievance procedure and
unable to settle the grievance; the grievance was appealed to arbitration. No issue was raised
the arbitrability of the grievance. Hearing in this matter was held by the Arbitrator on July
in the City of Wausau, Wisconsin at the offices of the Marathon County Personnel
hearing ended at 12:53 p.m.
POSITIONS OF THE PARTIES
The Union argues that the posting of the Trades Technician II position in December
when employe Plahetke resigned, was a vacancy and since the position formerly included
duties, the Crew Chief duties should have been part of the December 22, 1998 Trades
position posting. The Union argues that the job posting language is clear that the resignation
Plahetke created a vacancy and the Trades Technician II position with Crew Chief
duties is clearly
a vacancy and that the "vacancy" language in the job posting article must be given its full
Union argues that where language is plain and unambiguous, the Arbitrator may not resort to
of construction and must enforce the contract according to its terms.
The Union submits in the alternative that in the event the Arbitrator determines the
of the job posting procedure to be ambiguous that instances of past practice should be utilized
govern its interpretation. The Trades Technician II position was posted in 1995 as including
Chief duties; the Union argues that this is a past practice for this particular position.
Therefore it is
the Union position that the 1998 posting should have been posted with Crew Chief duties.
Lastly, the Union argues that the grievance should be sustained and that the County
be directed to re-post the Trades Technician II position on the Bridge Crew with the "Crew
responsibilities as well as the added compensation. The Union further requests that the
whole any successful bidder for losses incurred as a result of the alleged violation of the
The County argues that the contract language which indicates the Crew Chief is to be
assigned to an individual is clear and unambiguous. Reviewing Appendix A Salary
Schedule of the
labor agreement the County points out to the Arbitrator relevant language as follows:
The following premiums shall be added to the hourly rate of pay
for employees assigned to
perform the role of a "crew chief";
When the crew chief is on vacation and the
crew is operating, the senior employee shall be
assigned crew chief responsibility and paid the hourly premium.
The County argues that this language, negotiated into the
1995-97 labor agreement, provides
that the Crew Chief responsibility is to be assigned by management and is not to be
any position that is filled through the job posting process. The County argues that the Crew
responsibilities are not treated the same as the responsibilities listed for various positions.
the County submits the Crew Chief is a special assignment that, absent any restrictive
language, is to
be made by management in its discretion. The County avers that the language of Article 2
Management Rights supports the County position that it has the right to make the assignment
Crew Chief in its discretion absent restrictive language.
As its alternative argument, the County argues that assuming arguendo that the
language is unclear, the bargaining history shows that the agreement by the parties was that
assignment of a Crew Chief was a management prerogative. The County points out that in
negotiations for the 1995-97 agreement the Union originally proposed contract language in its
preliminary final offer which would make the Crew Chief responsibilities part of a position
be filled pursuant to the job posting procedure of Article 7. The County points out that this
was rejected by the County and never incorporated into the labor agreement covering this
The County argues that this is confirmed by the tentative agreement reached between the
the Union which includes the new language regarding Crew Chief. Further the County
Brad Karger, Personnel Director for Marathon County, testified that in negotiating whether
assignment of Crew Chief responsibilities would be by management or by a posting
compromise was reached. That compromise provided that the County would retain the right
assign the role of Crew Chief at its discretion but that seniority would be used to designate a
temporary Crew Chief when the assigned Crew Chief was on vacation. The County submits
Union cannot obtain through grievance arbitration something that it sought and failed to
through collective bargaining.
The County's third argument is that the 1995 posting for Trades Technician II
not support the Union's grievance. The County first submits that one occurrence, where the
posting included the Crew Chief responsibilities, does not establish a practice requiring the
to use the job posting procedure for any other instance when assigning Crew Chief
The County argues that it proved that in 1995 when the Trades Technician II position
there was only one Trades Technician II position in existence, and it was logical that the
awarded the position assume the responsibilities of Crew Chief. The County submits that the
posting is different from the 1998 posting at issue in this matter. In 1998, there were three
Technician II positions in the Bridge Division and the County appropriately exercised
to assign Crew Chief responsibilities to one of those three employes.
Lastly, the County submits that clear contract language authorizes the County to
Chief responsibilities exercising management discretion. The County argues that the Union's
that Crew Chief responsibilities must be filled using the job posting procedure of
Article 7 is without
merit and that the contract language is clear on its face. The County submits that the
deny the grievance in its entirety.
This is a contract interpretation case. The parties have approached the issue from
viewpoints and with different arguments. The Union argues that the contract language is
Article 7 - Job Posting requires that the Crew Chief duties for the Bridge Crew be a part of
December 1998 job posting for a Trades Technician II position. The Union views the
the previous bridge Crew Chief to create, under the job positing language, a vacancy that
filled and that the vacancy includes the duties of the bridge Crew Chief. The Union argues
that if I
find the language of the job posting article ambiguous, then I should consider past practice to
interpret the labor agreement. The Union offers the 1995 job posting of a Trades Technician
position, which was assigned the Crew Chief duties, as supporting its past practice argument.
The County on the other hand, argues that the contract language of Appendix A is
Crew Chief responsibilities are assigned by the County; the duties are not subject to the job
procedure of Article 7. The County takes the position that if I find the language of
ambiguous then bargaining history for the 1995-1997 labor agreement proves that the use of
"assigns" in Appendix A means that the County, at its sole discretion, makes the assignment
employe will be a Crew Chief and receive the commensurate premium; such assignment is
I do not find either the job posting article or Appendix A ambiguous. The job
is straight forward that vacancies in "positions" are to be posted unless the County decides
not to fill
the position. The question then is whether the Crew Chief duties are a position or duties
to a position. I believe Appendix A makes clear that the duties of Crew Chief for the Bridge
and other crews are assigned; they are assigned as additional duties to an employe on the
Crew for which that employe receives additional compensation. I believe the plain reading
contract language, and in particular Appendix A, can only logically be read that if
Crew Chief was
a position it would be included in the list of positions in Appendix A and would not be
described as "employees assigned to perform in the role of a 'crew chief.'" (Jt. 1)
The word "assigns" has a meaning which I believe and find does not support the
position in this case. It is axiomatic under accepted arbitration case law that words are to be
their ordinary and popular meaning. 1/ The word "assign" can mean delegate, appoint,
authorize, empower or entrust. 2/ These words do not connotate any mutuality between
two parties in making an assignment. Nor do the words express or contemplate that
seniority or any
other qualifier is attached to the word.
1/ When interpreting agreements,
arbitrators use the ordinary and popular meaning of words, unless
there is an indication that the parties intended a special meaning.
of the Workplace, Theodore J. St. Antoine editor, pg. 69 (1998).
Roget's Thesaurus, Little, Brown and Company, Inc. First Edition
Under the Management Rights clause of
the Agreement, sub-paragraph 3, the County can
assign employes. (Jt. 2 Article 2) Neither party offered that the use of the word 'assign' in
Article is limited by the use of seniority.
Another arbitral standard is that words are to be given their
intended effect. 3/ In the
management rights clause the parties gave the County the right to assign subject to any
elsewhere in the agreement. There is no reason to believe that the parties intended a
of the word in Appendix A of the agreement. This is particularly true when I look at the
language related to Crew Chief in Appendix A. The language of the Crew Chief provision
states: "When the Crew Chief is on vacation and the crew is operating, the senior employee
be assigned Crew Chief responsibility and paid the hourly premium." To give the contract
language effect can only mean that seniority applies in the case of an employee acting as
Chief when the regular Crew Chief is on vacation but not when the regular Crew Chief is
assigned those duties by the County. The language of Appendix A is very similar to the
'assignment of snow removal duties' also set forth in Appendix A. On an arguably stronger
of facts for the Union in another case, the arbitrator found that snow removal duties are
'assigned ' by the County and are not subject to the job posting procedures of the
3/ Arbitrators apply a presumption
that parties intended their words to have effect and not to be interpreted
in a way that causes a provision to perish or be superfluous.
of the Workplace, supra, at pg. 71.
4/ Marathon County
Highway Employees Local 326, and Marathon County (Highway
Department) Case 262, No. 57447, MA-10627. Burns (1999)
Even if I had found the contract language to be ambiguous, the
Union's past practice
argument would not succeed. The circumstances of the 1995 posting and the 1998 posting
different on their facts and therefore those differences plus the one time occurrence of
the Crew Chief duties in the 1995 job posting do not establish a past
The County's alternative position bolsters its argument that the
parties understood that
the County would assign the Crew Chief duties without regard to seniority. As set forth in
statement of the case, the Union in the negotiations for the 1995-1997 contract, under which
grievance is being arbitrated, attempted to propose language that would have made the Crew
Chief duties subject to the Article 7 job posting procedure. That proposed language was
adopted by the parties. I credit the exhibits of the bargaining history and the testimony of
County witness that the parties reached a compromise in the negotiations for this agreement
the County would have the sole right to assign the Crew Chief responsibilities in exchange
assigning Crew Chief duties by seniority when the regular Crew Chief was on vacation and
enhancing the premium for these duties above the Union's original proposal. The Union in
confirming the tentative settlement in correspondence to the County uses the word "assign"
a manner to confirm this understanding. In testimony, the Union witnesses confirmed that
to the 1995-1997 negotiations and contract emanating therefrom, the County had assigned
Chief responsibilities on a temporary basis. I find it doubtful that the County would give up
right when negotiating the assignment of these duties on a permanent basis, and I find that
record supports this conclusion. And that the Union told its members at the Union contract
ratification that its understanding with the County was to agree to disagree about the issue in
matter is of no consequence, as clearly that statement was never made to any management
representative of the County.
In this case, the contract language, the bargaining history and
the absence of any past
practice establish that the County had the right to assign the duties of bridge Crew Chief to
qualified employe who was not the most senior.
Based on the foregoing and the record as a whole, I enter the
The County did not violate the Labor Agreement when it assigned the
responsibility of Crew
Chief for the Bridge Crew on the basis of management discretion and when it did not follow
posting article for such assignment. The grievance of the Union is denied.
Dated at Madison, Wisconsin this 21st day of September,
Paul A. Hahn, Arbitrator