BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 67, AFSCME, AFL-CIO
CITY OF RACINE
Mr. John P. Maglio, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Guadalupe G. Villarreal, Deputy City Attorney, appearing
on behalf of the City.
Local 67, AFSCME, AFL-CIO, hereinafter referred to as the Union, and the City of
hereinafter referred to as the City, are parties to a collective bargaining agreement which
the final and binding arbitration of disputes arising thereunder. The Union made a request,
concurrence of the City, that the Wisconsin Employment Relations Commission designate a
of its staff to act as an arbitrator to hear and decide a grievance over the meaning and
the terms of the collective bargaining agreement. The undersigned was so designated.
held in Racine, Wisconsin, on September 27, 1999. The hearing was not transcribed
and the parties
filed post-hearing briefs which were exchanged on December 3, 1999.
Due to a death and a retirement, the City posted for an electrician in the Parks
The International Brotherhood of Electrical Workers claimed the job fell under its
City then posted for a Parks Maintenance Worker. The job posting
required a Fourth Class Boiler's License and an Owner's Facility Electrician License.
of the Union posted for the position, Ron Bogard and Randy Eschmann. Bogard was
the Public Works Department, Street Maintenance Division, and was the most senior
been hired in 1979. Bogard did not possess either license. Eschmann who was hired in
worked in the Solid Waste Division, held the Fourth Class Boiler's License but not the
Facility Electrician License and did not apply for one. The City hired a new employe who
both licenses when he assumed the position. Bogard and Eschmann grieved their
was denied and appealed to the instant arbitration.
The parties were unable to agree on a statement of the issue. The Union stated the
Did the City violate the collective bargaining agreement when
failed to award the position
of Parks Maintenance Worker to the senior qualified applicant?
If so, what is the appropriate remedy?
The City views the issue as follows:
Did the Employer violate the collective
bargaining agreement (CBA) when it created and
posted the position of Park Maintenance Worker?
If so, what is the appropriate remedy?
The undersigned frames the issue as
Did the City violate the collective
bargaining agreement when it did not award the position
of Parks Maintenance Worker to Ron Bogard or Randy Eschmann but instead hired from the
If so, what is the appropriate remedy?
Management and Union Recognition
. . .
E. Management Rights. The
City possesses the sole right to operate City government and all
management rights repose in it, but such rights must be exercised consistently with the other
provisions of this contract and the past practices in the departments covered by the terms of
Agreement unless such past practices are modified by this Agreement, or by the City under
conferred upon it by this Agreement, or the work rules established by the City of Racine.
rights which are normally exercised by the various department heads include, but are not
. . .
2. To hire, promote, transfer, assign and
retain employees in positions with the City and to
suspend, demote, discharge and take other disciplinary action against employees for just
. . .
8. To determine the methods, means and
personnel by which such operations are to be
. . .
In addition to the Management Rights listed
above, the powers of authority which the City has
not officially abridged, delegated or modified by this Agreement are retained by the City.
recognizes the exclusive right of the City to establish reasonable work rules. The Union and
employees agree that they will not attempt to abridge these Management Rights and the City
that it will not use these Management Rights to interfere with rights established under this
or the existing past practices within the departments covered by this Agreement, unless such
practices are modified by this Agreement, or by the City under rights conferred upon it by
Agreement, or the work rules established by the City of Racine. Nothing in this Agreement
construed as imposing an obligation upon the City to consult or negotiate concerning the
of discretion and policy.
. . .
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) (sic) 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.
The Union contends that the City's requirements for a Fourth Class Boiler's License
Owner's Facility Electrician License are not germane to the requirements of the job and are
to past practice. It observes that Bob Metty held the position in dispute until his retirement
held neither license. It rejects the City's contention that Metty worked under Wally Rhone's
umbrella because Rhone passed away six months before Metty retired, so he was not
required to have
either license. As to the Fourth Class Boiler's License, the Union points out that Eschmann
and the courses needed to get one are offered once a year starting in August and run for
It refers to a number of employees including Kelly Tuinstra, Randy Schmidt and Wilfred
were given a position through posting which required such a license and they were given up
to a year
after being placed in the position to obtain the license. It submits that there is a clear and
long-standing practice of giving newly appointed employes the time needed to achieve the
and there is no reason not to extend this same practice to the position in dispute.
As concerns the Owner's Facility Electrician License, the Union points to the Racine
municipal codes Sec. 22-382(a) which states:
(a) Exception to specific license requirement.
Any person, referred to in this article as
"employer," who maintains an electrical department which regularly employs a person
this article as a supervising electrician, and who obtains annual registration under section
have electrical work performed in his industrial, institutional or governmental buildings
specific license as provided under this article.
The Union observes that the City has an Electrical Department with four journeymen
electricians, thus it asserts that the code exempts others from holding the license, and in
position is in the Parks Department and the code appears specific to electrical departments,
so it has
nothing to do with the Parks Department. The Union also notes that there is confusion with
to the requirement itself as the job posting refers to an Owner's Facility Electrician License
code makes no mention of it. It claims that the Chief Electrical Inspector's license exempts
Department position and to exclude employes from the position because of undue reliance on
unreasonable requirements is blatant.
The Union contends that both internal applicants are qualified as Bogard was in the
Reserve and has rehabilitated buildings and graduated from the Army's nuclear weapons
school. It argues that Eschmann, in his current position as well as his private construction
is qualified to perform the duties of the position.
The Union insists that the testing process is marred. It submits that Eschmann was
could not take the test because he failed to meet the requirements in Sec. 22-382 of the
code but the Union takes the position that Section of the code does not apply. It points out
Eschmann was told there were no resources he could study to prepare for the test, yet it was
established that the test was an open book test. It observes that the outside applicant did not
the license and was given until his hire date to get one and that date was nearly three months
posting closed. It argues that denial of the test to the grievants was improper as was the fact
were not even interviewed.
In conclusion, the Union argues that the license requirements are bogus, not required
code, and even if they are, there is a licensed electrician already employed. It reiterates that
have been allowed up to a year to get a Fourth Class Boiler's License. It states that the
for the position are unreasonable. It claims that the City cannot create an exclusionary
intended for a maintenance worker. It takes the position that the City never required licenses
sort in the past and the requirement is arbitrary, capricious, discriminatory and made in bad
seeks an award sustaining the grievance and granting the position to Bogard, and if he
to Eschmann, and the successful applicant be made whole. In the alternative, it seeks a
pertinent test that draws an accurate nexus to the job and the senior man with a passing score
awarded the position.
The City contends that under the Management Rights Clause it has the right to create
classifications to meet its needs. It claims that it created the Park Maintenance Worker
the qualifications required by the ordinances of a supervising electrician's license and the
was required to possess the license before assuming the position. It points out that Sec.
the City's ordinances prohibit a person from performing electrical work without an
license or a supervising electrician's license and the Union is asking the Arbitrator to allow a
to perform electrical work without any license and the prohibition against this is clear and
It notes that the Union has asserted a past practice with respect to the Fourth Class
License; however, the electrician license is not the same and this license was required in
the Fourth Class Boiler's License. It submits that in other positions, employes worked under
Doonan's First Class Boiler's License or others with the Fourth Class Boiler's License were
when they were working. It asserts that for the electrician license, the law does not make a
or exception for such a practice and past practice cannot authorize a violation of local or
The City maintains that it properly posted the position and selected the eligible
the position. It notes that the posting satisfied the contractual requirements and the person
was the only one that had the licenses and experience required for the position. It asserts
grievants did not have the required supervising electrician's license and only intermittent
experience. In conclusion, the City states that the grievants did not have the required
licenses to be
considered for the position and the City selected a qualified person who did.
The City under the Management Rights clause has the right to create positions and to
determine the requirements for the position. The Union has asserted that the Fourth Class
License and Owner's Facility Electrician License are not germane to the position. A review
job description indicates that the position is responsible for installation, maintenance and/or
heating, ventilating, air conditioning, electrical and related equipment (Ex. 5). Furthermore,
Rhone possessed the proper license for the position. The Union claims that Bob Metty held
Maintenance Worker position and performed these duties for six months prior to his
did not have any license. The evidence failed to establish that Metty ever held the position
performed work that required the licenses. The evidence established that after Rhone died,
emergency electrical work was performed by Electricians from the Electrical Inspection
Office or the
work was subcontracted from Rhone's death until January, 1999, when the position was
licensing requirements relate directly to what the job requires and the technical requirements
job do not appear to be arbitrary, capricious, discriminatory or made in bad faith. Thus, the
sufficiently supports a conclusion that the licenses were a requirement for the position.
It is also noted that the job was placed at the HU-22 wage bracket (Ex. 4) and under
contract, HU-22 lists carpenter, plumber and electrician, all craft positions (Ex. 1). The
worker is listed at HU-18 (Ex. 1). It must be concluded that the licensing requirements were
and pertinent to the job and certainly were not bogus. Although there was some confusion
precise title of the license required for the electrical work, this has no effect on the outcome
The Union also argues that past practice requires an employe to be put in the job and
time to get the appropriate license. The past practice was limited to Boiler's Licenses and in
case, an employe who did not have such license was under someone's umbrella license. The
failed to show that anyone was allowed time to obtain an Owner's Facility Electrician
the City ordinances prohibit the performance of electrical work unless someone performing
has the proper license. The mere fact that the City has an Electrical Inspection Department
mean that electrical work can be performed in City buildings by unlicensed personnel. This
is not only
unsafe to the person performing the work but could create an unsafe building. It follows that
a pre-requisite for the position is the appropriate electrical license and past practice does not
The technical training and licenses required by the job were not possessed by the
so it follows they were not qualified. Neither took the test and the requirements set out in
ordinance, Sec. 22-382(b) indicates that the grievants did not meet the pre-requisites to even
test (Ex. 10). Thus, the City's selection of a qualified new hire was proper and the failure to
either grievant did not violate the contract as neither grievant was qualified nor had the
licenses for the position.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned makes the following
The City did not violate the parties' collective bargaining agreement when it did not
the position of Parks Maintenance Worker to Ron Bogard or Randy Eschmann, and
grievance is denied in all respects.
Dated at Madison, Wisconsin, this 29th day of December, 1999.
Lionel L. Crowley, Arbitrator