BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 67, AFSCME, AFL-CIO
CITY OF RACINE
Mr. John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 624, Racine, Wisconsin 53401-0624, on behalf of Local
67, AFSCME, AFL-CIO.
Mr. Guadalupe G. Villarreal, Deputy City Attorney, City of
Racine, Racine City Hall, 730 Washington Avenue, Racine, Wisconsin 53403, on behalf of
the City of Racine.
Local 67, AFSCME, AFL-CIO, hereinafter the Union, requested that the Wisconsin
Employment Relations Commission appoint a staff arbitrator to hear and decide the instant
between the Union and the City of Racine, hereinafter the City, in accordance with the
arbitration procedures contained in the parties' labor agreement. The City subsequently
in the request and the undersigned, David E. Shaw, of the Commission's staff, was
arbitrate in the dispute. The parties attempted to resolve their dispute, but were unsuccessful
proceeded to hearing on the grievance before the undersigned on October 19, 1999 in
Wisconsin. There was no stenographic transcript made of the hearing and the parties
arguments in lieu of post-hearing briefs.
The undersigned rendered an oral award at hearing at the mutual request of the
the understanding a written award would follow. Therefore, based upon the evidence and the
arguments of the parties, the undersigned makes and issues the following Award.
The parties stipulated to the following statement of the issue:
Does Article XII, Sec. D., require that a vacant
Street Sweeper position in the Street
Maintenance Division be filled in the order of departmental seniority from the Solid Waste
or does a more senior employee outside of the Solid Waste Division have posting rights to
The following provisions of the parties' Agreement are cited:
A. Posting Procedure. Any job vacancy which
occurs due to retirement, quit, death, new
position or for whatever reason in the bargaining unit shall be posted.
The posting shall set forth the job title,
duties and qualifications desired, rate of pay, work
location or assignment and shift. Sufficient space shall be provided for employees to sign
said job opening.
All job openings within the province of the
bargaining unit shall be posted for five (5) working
days in overlapping consecutive weeks. The successful bidder or the Union shall be notified
five (5) work days after the close of the posting.
The City agrees to move the successful
bidder to his new position as quickly as possible but in
no event later than thirty (30) calendar days after notification of his selection.
B. Posting Departments. For
the purpose of defining departments as divisions for job postings,
the following will be classed as departments or divisions:
DPW Street Maintenance
DPW Solid Waste Division
DPW Bridge Division
DPW Equipment Maintenance
DPW Building Complex Division
Parks Zoo Recreation
Police Department Garage Animal
C. Preference. Preference
will be given first to the employees in the department and second to
regular bargaining unit employees in other departments for posted jobs before a seasonal or
temporary employee is considered. Screening of a man on the basis of seniority and ability
the duties of the job still applies.
D. Posting into Street
Maintenance. All vacancies or openings in the DPW Street Maintenance
Division shall be filled in the order of departmental seniority from the Solid Waste Division
mutually agreed between the City and Local 67, unless the Solid Waste Division
his right to move into the DPW Street Maintenance Division.
. . .
The parties stipulated to the following facts:
1) The position in question in this grievance is a
Streetsweeper position posted in March of
2) The Streetsweeper position
is in the Street Maintenance Division of the Department of Public
3) The Streetsweeper position
was awarded to Al Cocciotti, who has a seniority date of April
19, 1994. All of his seniority is in the Department of Public Works.
4) Chuck Dennis also posted
for the Streetsweeper position. Dennis has a seniority date of April
24, 1978. All of his seniority is in the Department of Public Works.
5) Cocciotti is in the Solid Waste Division. Dennis
is in the Equipment Maintenance Division.
In addition to those stipulated facts, the Union's President, Doug Dresen, and the
Superintendent of Public Works, Joe Golden, testified as to the background of Article XII,
and D. The wording of Article XII, Secs. C and D of the Agreement
predates both Dresen and
Golden. Dresen testified that this grievance was filed because the most senior employe in the
Department of Public Works that bid on the position did not get the job. Dresen further
as far as he is aware, no one outside of the Street Maintenance Division had ever posted for
Streetsweeper position before this instance.
Golden testified that the Streetsweeper position in question was posted City-wide in
bargaining unit, and that this is not always the case, as it is sometimes only posted in the
of Public Works. No one in Street Maintenance posted for the vacancy, however, Cocciotti,
senior employe in Solid Waste was awarded the position. According to Golden, that is how
always been done in his thirty-one years with the City
Golden testified, and Dresen acknowledged as well, that of the forty-one employes in
Waste, only twenty-four perform that division's primary duty of picking up garbage on a
The rest of the Solid Waste employes (usually after they have been there approximately three
perform Street Maintenance duties on a daily basis and thereby obtain the training necessary
Maintenance jobs. Golden testified that after employes have been in Solid Waste for about
they are able to post into Street Maintenance positions.
Golden further testified that the fact the Streetsweeper position was posted City-wide
change how the position was filled. The normal progression of preference is still followed
and if no
one from Street Maintenance or Solid Waste bids on the Streetsweeper position, preference is
by departmental seniority among the remaining divisions of Public Works, and then
City-wide in the
unit. Golden does not recall such a vacancy ever going beyond Solid Waste.
POSITIONS OF THE PARTIES
The Union notes that Article II, Sec. H, of the Agreement, permits the
parties to seek an
interpretation of a provision of their Agreement from an arbitrator where there is a dispute,
is what it seeks in this case.
The Union asserts that Article XII, Sec. C, of the Agreement is clear
that preference is to be
given to the senior employe in the department in which the vacancy occurs; in this case the
Department of Public Works. Article XII, Sec. D, seems to state a different
policy if the
vacancy occurs in the Street Maintenance Division. The Union contends that the
Sec. C and Sec. D should be resolved in favor of Sec. C, giving
preference to the most senior
employe in the department.
The City notes that the parties negotiated the language of Article XII,
Secs. C and D and
arrived at those provisions for reasons they presumably discussed in negotiations.
In this case, the position in question, Streetsweeper, is in the Street Maintenance
and Cocciotti was the most senior employe in the Solid Waste Division. While Dennis had
department seniority, he is in the Equipment Maintenance Division. Thus, pursuant to
Cocciotti was awarded the position.
The City also asserts that the issue of having to post into Street Maintenance from the
Waste Division has been litigated previously. In a 1984 award involving these parties, the
in that case recognized that while the general rule is that department seniority has preference,
is an exception to that rule as far as vacancies that occur in the Street Maintenance Division.
The wording of Article XII, Sec. C is clear that first preference is to be
given to employes in
the department where the vacancy exists. This provision is general in its application, i.e., it
to vacancies in general. However, Sec. D is also clear and specifically applies to,
"All vacancies or
openings in the DPW Street Maintenance Division" and explicitly states that such vacancy or
"shall be filled in the order of departmental seniority from the Solid Waste Division," unless
employe from that Division waives his right to move into the Street Maintenance Division.
It is noted
that Sec. D also states that the preference in this provision is as mutually agreed
between the City and
It is a recognized and accepted rule of contract construction that where there is a
between general language and specific language, the specific language governs. In this case,
Article XII, Sec. D specifically addresses vacancies in the Street Maintenance
Division and creates
an exception to the general rule in Sec. C as to such vacancies. The notation that this
by the mutual agreement of the parties indicates that the exception in Sec. D was
and that its conflict with the general rule in Sec. C was not inadvertent.
Based upon the evidence and the arguments of the parties, the undersigned makes and
As the Streetsweeper vacancy was in the Street Maintenance Division and was
the most senior employe in the Solid Waste Division, the City acted in accord with
Sec. D, of the parties' Agreement, which requires that such vacancies first be filled in
departmental seniority from within the Solid Waste Division.
Dated at Madison, Wisconsin this 25th day of October, 1999.
David E. Shaw, Arbitrator