BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN BAY BOARD OF EDUCATION
(MAINTENANCE) UNION, LOCAL 3055, AFSCME,
GREEN BAY AREA PUBLIC SCHOOL
(Tom Tedford Glazier Work Grievance)
Mr. Robert Baxter, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 2065 East Baraboo Circle, DePere, Wisconsin 54115, appearing on
behalf of Local 3055.
Melli, Walker, Pease & Ruhly, S.C., by Attorney Jack D.
Walker, P.O. Box 1664, Madison, Wisconsin 53701-1664, appearing on behalf
of Green Bay Area Public School District.
Pursuant to the provisions of the collective bargaining agreement between the parties
Bay Board of Education Employees (Maintenance) Union, Local 3055, AFSCME, AFL-CIO
(hereinafter referred to as the Union) and the Green Bay Area Public School District
referred to as the District or the Employer) requested that the Wisconsin Employment
Commission designate a member of its staff to serve as arbitrator and to hear and decide a
over the assignment of glazier work in the District. A hearing was held at the District's
Green Bay, Wisconsin, on May 12, 1999, at which time the parties were afforded full
present such testimony, exhibits, other evidence and argument as were relevant to the
parties submitted post-hearing briefs, and the Union submitted a reply brief. On August 16,
District advised the arbitrator that it would stand on its original argument, whereupon the
Now, having considered the testimony, exhibits, and other evidence, the arguments of
parties, and the record as a whole, and being fully advised in the premises, the undersigned
The parties stipulated that the issues before the arbitrator are:
(1) Was the grievance timely? If so
(2) Did the Employer violate the collective
bargaining agreement and/or past practice by
unilaterally transferring the glazier work from the grievant, Tom Tedford, to the Level 7
Mechanic classification? If so
(3) What is the appropriate
The Employer, on its own behalf, hereby retains and reserves
unto itself, without limitation, all
powers, rights, authority, duties and responsibilities conferred upon and vested in it by the
the constitutions of the State of Wisconsin and of the United States, including, but without
the generality of the foregoing, the rights:
1. To the executive management and
administrative control of the school system and its
properties and facilities;
2. To hire all employees and, subject to the
provisions of law and this Agreement, to determine
their qualifications and the conditions for their continued employment, or their dismissal or
and to promote and transfer all such employees;
3. To determine hours of duty and
assignment of work;
4. To establish new jobs and abolish or
change existing jobs;
5. To manage the work force and determine
the number of employees required.
6. To subcontract where staff vacancies have been created by
quit, discharge for cause,
retirement or any other reason, but not for or by staff layoff. Subcontracting shall be done
and in accordance with Article XXXIV of this Agreement.
The exercise of management rights in the
above shall be done in accordance with the specific
terms of this Agreement and shall not be interpreted so as to deny the employee's right of
The exercise of the foregoing powers,
rights, authority, duties and responsibilities by the
Employer, the adoption of policies, rules and regulations, and practices in furtherance
the use of judgment and discretion in connection therewith, shall be limited only by the
express terms of this Agreement and Wisconsin Statutes, Section 111.70, and then only to
such specific and express terms are in conformance with the constitution and laws of the
Wisconsin and the Constitution and laws of the United States.
. . .
All existing practices pertaining to hours, working conditions,
rules and regulations not
specifically mentioned in this Agreement will continue in force as at present until they are
by mutual agreement between the Employer and Union. The Employer further agrees to
existing benefits not contained in this Agreement.
. . .
The Employer agrees to the seniority principle.
Seniority shall be established for each
employee and shall consist of the total calendar time, lapsed
since the date of h/er regular employment. Seniority rights terminate upon discharge, or
. . .
Attached as appendices to this Agreement
are the job classifications and pay schedules. The pay
plan attached shall remain in effect without change for the term of the labor agreement.
The Employer shall determine the number
of employees to be assigned to any job classification
and the job classifications needed to operate the Employer's facilities. The Union shall be
advance of any change to be made in the number and kind of classifications.
Prior to establishing a new job or changing
an existing job which materially affects the duties of
the job, the Employer shall inform the Union.
Subsequent to Union notification, the
Employer will evaluate the new or materially changed job
in comparison with other jobs whose relative worth is comparable and will inform the Union
new rate and effective date. The Union may immediately enter into negotiations with the
concerning such rate. Changes in such rate agreed upon with (sic) sixty (60) days, or an
time mutually agreed to, shall be made retroactive to the effective date of the job changes or
installation which occasioned the rate adjustment. The establishment of disputed wage rates
a subject of arbitration.
. . .
All grievances which may arise shall be
processed in the following manner:
Step l. The aggrieved employee shall
present the grievance orally to h/er immediate supervisor
within fifteen (15) workdays of the time in which the employee knows of or should have
the suspected improper application. The aggrieved employee, with the representation of h/er
if s/he so elects, shall attempt to resolve the grievance with the immediate supervisor, who
higher level superiors into the discussion. If it is not resolved at this level within ten (10)
of its initial presentation, the grievance may be processed further by the employee as outlined
Step 2. The grievance shall be presented in
writing to the immediate supervisor within ten (10)
workdays of the supervisor's answer at Step 1; and if not resolved within ten (10) workdays
level, it may be processed further by the employee, as outlined in Step 3.
. . .
Step 5. Within ten (10) workdays of the Human Resources
Committee's answer at Step 4, the
grievance may be submitted by the employee to the Wisconsin Employment Relations
for arbitration by one of its members. The Arbitrator, after hearing both sides of the
shall hand down h/er decision in writing and such decision shall be final and binding on both
to this Agreement. The Arbitrator shall have no power to add to, or subtract from or modify
term(s) of this Agreement. The cost, if any, of the Arbitrator shall be divided equally
Employer and the Union.
Time Limits: Grievances not
appealed within the designated time limits in any step of the
grievance procedure will be considered as having been resolved on the basis of the last
answer of the Employer. Grievances not responded to by the Employer within the
limits in any step of the grievance procedure shall be considered denied by the Employer,
taken from such a denial to other steps of the procedure must be within the time limits set
after an answer to the grievance. The parties may mutually agree in writing to extend the
in any step of the grievance procedure.
. . .
When new jobs are created or vacancies
occur, such jobs shall be posted immediately and a job
outline shall be included. The posting shall contain the following information: school or
location, hours of work and rate of pay. Said postings shall remain posted for five (5)
before operation begins.
. . .
Negotiations on all matters covered by this
Agreement or on other proposals with respect to
wages, hours and/or conditions of employment shall be conducted annually, or other time
mutually agreed upon, and any agreement reached in negotiations shall become effective the
Negotiations shall proceed in the following manner: the party
requesting negotiations shall notify
the other party in writing of its request not earlier than the first (1st) day of February. An
meeting of the parties shall be called within thirty (30) days of the notice of such request, but
earlier than the first (1st) day of March. The party upon whom such request is made shall
opportunity to study such request and make an offer or counteroffer to the other party within
(15) days thereafter. Negotiations shall continue until resolved or until it is clear that no
can be reached.
. . .
The District provides educational services to the citizens of the Green Bay area, in
northeastern Wisconsin. The Union is the exclusive bargaining representative of the
maintenance employes, including those in the Utility classification. The grievant, Tom
a utility worker.
Prior to 1985, the District employed a full-time glazier, who was classified as a
Mechanic, to install, repair and maintain the windows in its buildings. In 1985, the
retired and the District determined that the volume of work did not warrant hiring a full-time
to replace him. Instead, the position was offered internally among employes in the lower
Worker classification, with the understanding that the Utility Worker performing the work on
an as-needed basis would receive Maintenance Mechanic's pay for all time spent as a glazier.
posting was prepared:
CLOSED JOB POSTING
Utility Workers and Utility
Worker/Substitute Custodian Only
The position of full time glazier has been
discontinued. However, as there still is a need for an
estimated 10 hours per week of glazier work, we are looking for a qualified individual
utility group who would be interested in this assignment on an as needed basis.
The utility worker or utility
worker/substitute Custodian IV who requests this assignment shall
be fully capable of performing the necessary work to replace glass in all types of windows
associated with our school buildings. I.E., marine glazing, thermopane, tempered and safety
double glaze and triple glazing, plus the old standby wood sash and putty. This individual
capable of the high work required to repair/replace windows on multi-story
buildings and shall have knowledge and ability of measurement
techniques for proper fittings of
glass, plus the knowledge and ability to handle ladders and scaffolds with safety. Work shall
reviewed by manager of maintenance services.
The individual who qualifies shall be
assigned the glazier work as needed (exception - full glass,
or stile and rail doors are carpenters work). The hourly pay differential at Level V shall be
after the completed work order is turned in. Pay shall be calculated in 1/2 hour segments
to the amount of time shown on the completed work order and approved by supervisor.
Only the designated utility worker/glazier
person shall be considered for differential pay in
situations where another utility worker is assigned
The individual who is placed in this
assignment may remove themself (sic) from this assignment
by a letter of request giving 30 days notice.
From 1985 until this grievance, the senior interested Utility
employe was awarded the glazier work
whenever the position fell vacant.
In 1997, the District met with the Union over revisions in two Maintenance Mechanic
descriptions. Among other things, the District advised the Union that it planned to have the
work added to the job description for the Maintenance Mechanic who was responsible for
blinds, with the Utility Workers handling any overflow. This change was prompted in part
decrease in the other work available to Maintenance Mechanics, and in part by the fact that
the windows being installed in District buildings over the last ten years had the blinds
into the window itself. The Union objected to the change, to no effect. The change was
the modified Maintenance Mechanic positions were posted. Union President Tom Tedford
Utility Worker who was then performing the glazier work. Tedford posted unsuccessfully
Maintenance Mechanic's job, which was awarded to Gary Larson, effective August 26,
the transfer of glazier work was discussed in passing several more times after Larson filled
modified Maintenance Mechanic's job, no change was made in the job description, and the
not demand bargaining over the effects of the change. When the collective bargaining
expired in June of 1998, neither party made proposals about the glazier's work.
When Larson took over the modified Maintenance Mechanic's job, there was a
other work for him to do, and he was not immediately assigned all of the glazier's work.
continued to perform the work, and Larson gradually took over. In October of 1998,
became aware that Larson was being assigned glazier work while he, Tedford, was available
work. He filed the instant grievance, alleging that even though Larson could
do glazier work while he was absent or while he was also engaged in doing glazier
work, it violated
the contract and past practice for Larson to be assigned the work to the exclusion of the
Additional facts, as necessary, will be set forth below.
ARGUMENTS OF THE PARTIES
The Arguments of the District on Timeliness
At the outset, the District takes the position that the grievance is untimely. A
be filed within 15 days of the "suspected" violation. On August 8, 1997, the District directly
informed the Union's committee (including the grievant) that it was going to reassign the
responsibility for glazier's work to the Maintenance Mechanic. It then proceeded to post and
new position. The successful applicant, Gary Larson, gradually took over the glazier's
Fourteen and a half months after the Union was informed of the change, this grievance was
the interim, a new collective bargaining agreement was negotiated, without a word from the
about the proper assignment of glazier's work. If the time limits in the contract are to have
meaning at all, the arbitrator should dismiss this claim as untimely.
The Arguments of the Union on Timeliness
The Union disagrees with the District's theory that the mere announcement of a
rise to a grievance. It notes Arbitrator Gratz's Award in City of Oshkosh (6/15/94), wherein
arbitrator found that it was the actual subcontracting of work, rather than the announcement
subcontracting agreement, that triggered the time limits for filing a grievance. In this case,
grievant continued to receive out-of-class pay for glazier work on a regular basis until
1998. He believed that Larson was merely performing the work when he was not available.
about October 16th, it became apparent that Larson was going to be assigned the glazier
work to the
exclusion of the grievant. That is the grievable event, and this grievance, filed on October
within the 15-day limit specified by the grievance procedure. Even if there may have been
grievable event before October 16th, the misassignment of bargaining unit work is a
violation, which may be raised at any point. Thus the arbitrator should find that the
The Arguments of the Union on the Merits
The Union takes the position that the glazier work is primarily the job of Utility
that transferring the work to the Maintenance Mechanic violates the agreement.
The labor agreement provides that past practices related to working conditions and
specifically mentioned in the agreement will continue. The contract also recognizes the
seniority. There is a clear and long-standing practice of having glazier work performed by
Utility Worker who wants the duty. This practice is consistent with a written memorandum
1985, when the parties engaged in impact bargaining over the District's decision to eliminate
the full-time glazier's job. The letter spells out the parties' mutual agreement that glazier
work will be
assigned to the senior qualified person in the Utility classification who signs a closed posting
job. This letter has the same weight as contract language, and it is clear and unambiguous.
arbitrator does not have the option of ignoring it, nor even interpreting it. Instead, it must
as written. Giving this language its plain meaning, the District cannot unilaterally transfer
work out of the Utility classification.
The arbitrator should not accept the District's claim that it somehow canceled the
practice by its announcement in August of 1997 that it wanted to have a Maintenance
this work. While a past practice is subject to termination if clear notice is given during
negotiations, there were no negotiations in August of 1997. The contract still had eleven
run at that point. When the contract was reopened and the parties met to negotiate, the
still being assigned glazier work and was still receiving out-of-class pay. The District never
mentioned that it intended to stop that practice during bargaining, and thus the Union had no
to bargain over the topic.
The grievant is entitled to perform glazier work, since he is the senior qualified
Worker. The practice and the underlying agreement are clear, and they are consistent with
agreement. No effective notice of termination of the practice was given by the District
bargaining, and there has been no agreement to change the practice, the 1985 agreement or
contract itself. Accordingly, the arbitrator must find that the District violated the agreement,
order that the grievant be made whole.
The Arguments of the District on the Merits
The District takes the position that the grievance is wholly without merit and should
denied. The Union's entire theory depends upon past practice, but a past practice cannot
clear contract language. Here, the contract clearly vests the District with the right to assign
and to create, abolish and change jobs. The wage impacts of job changes during the term of
agreement are subject to negotiation and even arbitration, but the initial decision to make a
lies with the District. The District exercised its rights, and gave the Union a chance to
rights. It notified the Union of the Maintenance Mechanic job and the transfer of primary
responsibility for glazier's work to that position. It met with the Union to get input. It
change. This is precisely what the contract allows. The alleged practice cannot negate the
Even if there was a binding practice of some sort, the District gave timely notice that
terminating the practice and the Union subsequently failed to protect the practice during
Thus it did not continue into the term of the current contract. While the Union claims that
posting form is a free-standing agreement, with independent force and effect, it clearly is
not. It is
not styled as an agreement, and it has none of the standard features of an agreement -- no
lines, no effective date, no termination date, no acknowledgment of bargaining. There is no
that the parties intended to be bound by this document, and no evidence that either party ever
this document, even though the Union's officials admit that binding agreements must be
There was no one at the arbitration hearing who knew what this 1985 letter was, only that it
found in the Union's files after this grievance was filed. If it was some type of agreement, it
subject to the general rules governing agreements, including the one that says agreements
expiration date are subject to termination on reasonable notice. The August 1997 meeting
give the Union notice that the District was canceling whatever agreements it had on the
of glazier work.
Finally, assuming for the sake of argument that the 1985 posting is an agreement,
has somehow endured, it has not been violated. By its express terms, it promises that Utility
"shall be assigned the glazier work as needed . . ." This cannot be read as a promise that
will be exclusively assigned to Utility Workers, and it is undisputed that the grievant is still
assigned this work "as needed." For all of these reasons, the District asks that the grievance
As with most collective bargaining agreements, the labor contract here requires
The aggrieved employee shall present the grievance orally to h/er
immediate supervisor within
fifteen (15) workdays of the time in which the employee knows of or should have known of
suspected improper application.
There are two facets to this grievance. The Union first asserts that glazier work is the
province of the Utility Workers and that the Maintenance Mechanic may not perform this
the alternative, the Union argues that the work may be shared between the two positions, but
Utility Worker must be given priority in the assignment of the work.
As to the first aspect of the grievance, the October 1998 filing clearly does not meet
timelines in the collective bargaining agreement. The District advised the Union in August
that it would be reassigning the glazier work to the Maintenance Mechanic, and that the
Workers would only be handling the work on an overload basis. It proceeded to post and fill
modified position. The Union was well aware of the posting, since the grievant
the job. Between August of 1997 and October of 1998, the Maintenance Mechanic did, in
perform glazier work, and the Union knew that he performed the work. To the extent that
grievance claims that glazier work is the exclusive province of the Utility Workers, it cannot
be made to fit within the 15 workday time frame for filing grievances. This aspect of the
was not unclear to the Union at any time after August of 1997 nor, if exclusivity is the issue,
there anything incremental about the alleged violation. There were three specific acts that
given rise to a grievance over exclusivity -- the announcement of the change, the posting and
of the modified job, or the first occasion on which Larson performed glazier work. All of
events passed without a timely grievance.
The timeliness of the other aspect of the grievance -- whether the Maintenance
perform this work to the exclusion of the Utility Worker -- is not as clear cut. If the
of assigning glazier work to the Maintenance Mechanic without first making it available to
Worker, the grievable event is the first time that the grievant knew or should have known
an assignment was made. Reviewing the testimony and the time records, it cannot be said
positive assurance that Tedford should have known this was happening until October of 1998.
Accordingly, I find that the second theory of the grievance is timely presented.
The Union relies on two substantive theories to establish Tedford's right to the
First, it looks to the past practice clause at Article IV of the collective bargaining agreement,
obligates the Employer to maintain "All existing practices pertaining to hours, working
rules and regulations not specifically mentioned in this Agreement . . . until
they are adjusted by
mutual agreement between the Employer and Union." The Union asserts that this provision
requires that the District continue to give the Utility Worker first claim to the work since it
so for 12 years and has not negotiated any change. The second substantive theory is that the
posting document was a negotiated agreement over the effects of eliminating the full-time
that it remains in effect. Assuming for the sake of analysis that the practice remains binding,
the 1985 document actually is a negotiated agreement, I nonetheless find that the Union
scope of the practice and the wording of the document, and that there is no violation under
The Union focuses on the District's assignment of glazier work to the Utility
1985 to 1997 without giving any consideration to the circumstances under which that
assignment was made. Specifically, the District made this assignment as the result of
bargaining. The bargain was triggered because the District had unilaterally exercised its
right not to replace the Maintenance Mechanic who had previously performed the work. The
language of the 1985 document expressly recognizes this as the reason for the assignment:
position of full time glazier has been discontinued. However, as there still is a need for an
10 hours per week of glazier work, we are looking for a qualified individual among the
who would be interested in this assignment on an as needed basis." That document, and the
resulting from it, can most reasonably be understood as setting the parameters for the
glazier work in the absence of a Maintenance Mechanic. The document and the practice
understood as an agreement to read the Management Rights Clause out of the contract. That
what the practice has been, and it is not what the 1985 document says. The Management
clause continues to give the District the right to "establish new jobs and abolish or change
jobs." The express contract language provided the basis of the District's original choice in
it provides the basis for the decision to re-establish the Maintenance Mechanic position.
The past practice has been that, in the absence of a Maintenance Mechanic, the
has been assigned to the senior, interested Utility Worker. That too is what the 1985
for. That practice, and the procedure set forth in the 1985 document, continue to govern the
assignment of overload glazier work. The District acknowledged that this arrangement
continue in the August 1997 meeting and it has continued to assign glazier work to Tedford
as-needed basis since that time. Accordingly, I conclude that the District has not violated the
practice, nor has it deviated from the 1985 document.
On the basis of the foregoing, and the record as a whole, I have made the following
1. The grievance is timely filed as to the claim that the glazier work may not be
the Maintenance Mechanic to the exclusion of the Utility Worker.
2. The District did not violate the collective bargaining agreement and/or past
unilaterally transferring the glazier work from the grievant, Tom Tedford, to the
Level 7 Maintenance
3. The grievance is denied.
Dated at Racine, Wisconsin, this 16th day of November, 1999.
Daniel Nielsen, Arbitrator