BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1366, AFSCME, AFL-CIO
CITY OF FOND DU LAC
Mr. James E. Miller, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Godfrey & Kahn, S.C., by Mr. William G. Bracken,
Coordinator of Collective Bargaining Services, appearing on behalf of the City.
The Union and the City named above are parties to a 1998-99 collective bargaining
which provides for final and binding arbitration of certain disputes. The parties asked the
Employment Relations Commission to appoint an arbitrator to hear a dispute involving
pay. The undersigned was appointed and held a hearing on June 14, 1999, in Fond du
Wisconsin, at which time the parties were given the opportunity to present their evidence and
arguments. The parties completed filing briefs by September 20, 1999.
The issue to be decided is:
Did the City violate the Article IX, Section 10 of the
bargaining agreement in the
manner in which it paid the Grievant, Alan Lietz? If so, what is the appropriate remedy?
. . .
Section 10 Water Plant and Sewage Treatment
Plant Operator Licenses The following
additional pay shall be provided to operators who are in possession of valid Department of
Resources Licenses including training licenses.
Cents Per hours Sewage Plant Operators
.05 Grade 1 Subgrades a, c, e, g, i
.10 Grade 2 Subgrades a, c, e, g, i
.15 Grade 3 Subgrades a, c, e, g, i
.20 Grade 4 Subgrades a, c, e, g, i
The Grievant is Alan Lietz, who filed a grievance on September 28, 1998, stating
differential pay was not being paid properly. Lietz worked for the City an intern at the
Department from May to December of 1996. He worked 40 hours a week during the
then worked part-time from September through December. The following year, he worked
seasonal employee in the parks from April 1st through December
1st of 1997. He became a full-time
employee at the City on March 1, 1998, starting as an Influent Pump Operator at the
plant and remains in that job at the present time. He graduated from Moraine Park
with an associate degree in water and wastewater technology. Lietz took a water and
certification exam on May 6, 1998, and passed it. The exam is administered by the State's
Department of Natural Resources.
There are two levels introductory and advanced of exams for each of
10 subclasses. The
introductory exam covers Grades 1 and 2, and the advanced exam covers Grades 3 and 4.
report shows that Lietz passed the introductory exam for the mechanical sludge subclass (G)
advanced exams for the disinfection subclass (E) and the mechanical sludge subclass (G).
The DNR regulations under Chapter NR 114 list an operator-in-training grade,
the letter "T" and four grades. Specifically, NR 114.09 regarding qualifications of
treatment plant operators states the following:
(1) Five grades and 12 subclasses of
wastewater treatment plant operators are established. Operator
subclasses are the same as plant subclasses listed in s. NR 114.08(4). To qualify for
certification in a given
grade and subclass, a person shall meet the appropriate experience and examination
requirements for that
subclass and grade.
(a) Grade T. Pass the written introductory or
advanced examination for a given plant subclass and the
written introductory or advanced general examination.
(b) Grade 1. Completion of
grade T requirements, plus have one year of satisfactory subclass specific
(c) Grade 2. Complete of
grade 1 requirements plus one additional year of satisfactory experience in
the general operation of a wastewater treatment plant. A person certified at Grade 1 on
October 1, 1995
shall pass the written introductory or advanced general and written introductory or advanced
for each subclass to be certified at the Grade 2 level, in addition to gaining the appropriate
(d) Grade 3. Completion of
grade 2 requirements, plus one additional year of satisfactory experience
in the general operations of a wastewater treatment plant, plus pass a written advanced level
a given wastewater treatment plant subclass and pass the written advanced general
(e) Grade 4. Completion of
grade 3 requirements, plus one additional year of satisfactory experience
in the general operations of a wastewater treatment plan. A person certified at Grade 3 on
October 1, 1995
shall pass the written advanced general and written advanced examination for each subclass
to be certified
at the Grade 4 level, in addition to gaining the appropriate experience.
Lietz has the Grade T certification, or a training license,
because he met the written requirements.
He could have asked the DNR to certify him at the Grade 1 level as of May 6, 1999, when
he completed one
year of experience with his Grade T certification. He did not ask the DNR for such
Lietz believes that under the collective bargaining agreement, he should be paid an
extra 20 cents per
hour because he has a training license for a Grade 4 certification. He has passed the written
exams for a
Grade 4 certification, but he has not spent the amount of time on the job to obtain a Grade 4
The contract does not require that anyone spend a specific amount of time in a job to obtain
pay. Lietz also believes that his part-time experience as an intern in 1996 should count as
certification. He considers himself to be a Grade 4 operator in training.
The City has paid Lietz in the same manner that it has treated other operators. It
credited his full-time work for three months as an intern in 1996, added it to his full-time
work in 1998, and started paying
him an extra five cents per hour on December 2, 1998, giving him
credit for one year's of experience including his work as an intern. During the time
that Lietz worked part-time in 1996 as an intern in the wastewater plant, he worked in the
laboratory and that experience was not
counted toward any license.
In other words, the City treated him by December 2, 1998, as having a Grade 1
though he had not submitted his records to the DNR for such certification. The City used to
wait for the
proof, until the operator brought in the license, but employees often came in late with their
licenses and the
City had to go back into the payroll and give them back pay. Currently, the City pays the
a person has the necessary experience.
Utilities Director John Leonhard testified that no one would meet all five subgrades
listed in the
labor contract, because they could not get the experience in all of those subgrades at the
plant. So the City
has paid the differential once the grade is obtained, without regard to all the subclasses. The
City has also
paid the grade for which an employee would be certified by virtue of experience without the
having obtained the DNR certification for that grade. Leonhard testified that Grade T
indicates that a person
has taken the tests and passed them. The DNR will not certify anyone as a Grade 1 operator
until the person
also has the experience to go along with it. Grade 1 means that a person has passed the
entry level test and
has one year of experience, at a minimum.
Leonhard said that the contract language was in place long before he started with the
City over 15
years ago. He believed that the phrase "including training licenses" was added to the
contract at some point,
and he believed that phrase was included so that the City could keep paying employees the
way it had been
paying them. The DNR regulations have been changed about four times since the
mid-1970s. Leonhard took
his first exams in 1968.
The parties agreed to waive the time limits of the grievance procedure that require
deliver the findings on the case within 30 days of the filing of the briefs.
THE PARTIES' POSITIONS
The Union contends that while the DNR may have a stricter definition than the
contract of when an
individual operator would be eligible to receive the differential payments, the contract
language is broader
and provides the appropriate level of premium for any operator who holds a training license
in any of the
grades. The City has taken the position that the differential pay is based upon time spent in
the plant that
indicates that Lietz would be entitled to the five-cent differential when he reached the
one-year mark in total
service, giving him credit for his internship work in 1996.
The Union is not trying to change the meaning of the contract but asks that its plain
understood and applied. The contract language says nothing about eligibility for this
determined by length of time in a particular grade as a wastewater operator. Instead, it calls
holding particular grades, including those with training licenses within them, to be paid the
additional pay for each grade.
The Union anticipates that the City will argue that the current procedure of
pay has been in effect for a number of years and therefore has become a past practice. The
Union points out
that practices cannot be used to void clear contractual language. The language of Article IX,
Section 10, is
straightforward and simply outlines the amount of differential pay each DNR license provides
It specifically includes those operators holding training licenses.
In Chapter NR 114, there is no reference to the differential pay being discussed in
Chapter NR 114 discusses the training license. NR 114.03(7) states: "Grade means a
number indicating the
classification assigned to a person based on successful completion of an examination and
that the operator-in-training grade is denoted by the letter T."
The Union states that the issue here is whether the City can create its own
interpretation of when and
how differential pay is applied rather than follow the language of the contract. The monetary
of the grievance is admittedly small. The Union does not assert that paying the differential
would then allow
an employee to claim a higher level of DNR certification. The Union asks that the
differential pay be paid
according to the labor contract.
The City argues that it has correctly paid the Grievant based on the clear contract
language and its
consistent past practice. Article IX, Section 10, required the City to pay a wage differential
operators who have valid DNR licenses. The differential is paid to operators who have
completed Grade 1,
2, 3 or 4 certification requirements. The subgrades a, c, e and g are all the same for the
various grades. The
only difference in the certification requirements for Grades 1, 2, 3 and 4 relate to
experience. Chapter NR
114 states that to qualify for certification in a given grade and subclass, a person shall meet
experience and examination requirements for that subclass and grade.
The City notes that Leonhard testified that the DNR will not certify an operator
appropriate years of experience. The City has required both the successful completion of the
examination requirements and the experience in paying the wage differential of Article IX.
In the past,
employees have been paid that the differential based on proof of satisfactory completion of
The City gave the Grievant credit for his experience, and counted his intern
experience of three
months. In order to get the five-cent differential, the Grievant had to have one year of
for a Grade 1 certification. To receive a Grade 4 differential, the Grievant would have to
have four years of
experience. Because the Grievant does not have four years of experience, he cannot be
certified by the DNR
as a Grade 4 operator. The City has treated all employees the same.
The Grievant admitted that he did not have enough experience to be placed at a
according to the DNR's regulations, and that he would be at the Grade 1 category. By his
the DNR would classify him as a Grade 1 operator.
In replying to the Union, the City states that the language in Article IX is clear and
who are in possession of valid Department of Natural Resources licenses,
includes training licenses . . ."
(emphasis added) be paid a wage differential. Contrary to the Union's contention, the
contract language is
not broader than the DNR regulations. The language conforms to the DNR's license
include an experience component. One cannot have a Grade 4 DNR license without four
years of experience.
The City has consistently interpreted the contract language to be in compliance with the DNR
The Union has claimed that the contract says nothing about eligibility for the
determined by the length of time in a particular grade. For that interpretation to be correct,
would have to ignore the phrase "operators who are in possession of valid Department of
licenses . . ." The Union is mistaken in contending that the contract is different than the
DNR rule. The
contract clearly relies upon and is founded upon the DNR regulations, and both provisions
harmonized. The City does not argue that the past practice is in conflict with the contract
language, but cites
past practice to show that the City has always interpreted the contract to include the
as the contract requires. To have a valid DNR license at a particular grade, an employee
must have the
requisite number of years of experience. The Union admits that the grades under Chapter
NR 114 include
both the completion of an examination and experience. Grade T reflects no experience.
The language at issue is the phrase in Article IX, Section 10 that states:
The following additional pay shall be provided to operators who
are in possession of valid Department
of Natural Resources Licenses including training licenses.
There are pay differentials for Grades 1, 2, 3 and 4, but no differential for a training
license. What is
confusing is why the parties would use the term "including training licenses" but have no
pay rate for a
training license. Leonhard stated that he thought the phrase was included so that the City
could continue to
pay employees who held training licenses but had not submitted their experience in order to
get the proper
While the bargaining agreement does not define a training license, the parties agree
that the DNR
regulations apply to define grade operators. Under the regulations, a training license is
called a Grade T, and
NR 114.09(1)(a) states that to meet the Grade T, one must:
Pass the written introductory or advanced examination for a given
plant subclass and the written
introductory or advanced general examination.
The Grievant has written and passed a written introductory and advanced general
examinations for the subclasses of mechanical sludge and disinfection, and the introductory
examination for mechanical sludge. With a training license and one year of
experience, he qualified
for a Grade 1 Wastewater Treatment Plant Operator certificate. The City started giving him
the five-cent differential pay once he reached the one-year level.
The Grievant believes that he should get the maximum differential for a Grade 4
because he considers himself to be a Grade 4 operator in training and has taken an
a Grade 4 certification.
The record only shows that the Grievant has taken an advanced examination. The
regulations show that Grade 2 requires the written introductory or advanced examinations,
Grades 3 and 4 require advanced examinations.
While the Grievant believes that he has a training license for a Grade 4 operator,
there is no
such specific thing as a training license for a Grade 2, 3, or 4. The Grade 1 calls for the
of the Grade T requirements, plus one year of experience. The Grievant has met the Grade
requirements only. His training license allowed him to obtain the Grade 1. He can only
Grade 4 by completing the Grade 3 requirements, which include three years of experience
completing Grade 2 requirements. Grade 2 means completing Grade 1 requirements. When
Grievant completes Grade 1, he can move up to Grade 2.
The Grievant may believe that his training license will eventually qualify him for a
operator, but it will qualify him for a Grade 2 or 3 operator long before he reaches the
Grade 4 level
of experience. While the Union correctly states that the contract does not require any level
experience, the contract requires the attainment of the grade in order to get
the differential money.
To get the grade, one must do the time.
To get the 20-cent differential pay, an employee must hold a Grade 4 license. Under
Grievant's theory of the contract, anyone could get the maximum differential simply by
advanced examination of any one of the subgrades. That would be contrary to the contract
calls for different rates of pay or differentials for different grades.
If the parties want to attach a specific differential rate to a Grade T or a training
must do so in bargaining. An arbitrator should not determine what the differential should be
training license where the contract does not specify any particular amount. While the
asked for the maximum rate of 20 cents, why not the minimum of five cents? Why not
training license to be a license for training for a Grade 1? That is just as logical under the
current scheme. However, where the parties
have failed to attach a monetary amount to a training license, it would be inappropriate
arbitrator to arbitrarily decide what amount the employee with the training license should
Surely the parties can fix this in bargaining.
There is nothing in the record that shows that the City violated the contract in the
which it administered Article IX, Section 10, or the manner in which it paid the Grievant.
grievance will be denied and dismissed.
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin, this 12th day of October, 1999.
Karen J. Mawhinney, Arbitrator