BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO LOCAL UNION NO. 67
CITY OF RACINE, WISCONSIN
Mr. John P. Maglio, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box
624, Racine, Wisconsin 53401-0624, appearing on behalf of American Federation of State,
and Municipal Employees, AFL-CIO Local Union No. 67, referred to below as the Union.
Mr. Guadalupe G. Villarreal,
Deputy City Attorney, City Hall, 730 Washington Avenue, Room
201, Racine, Wisconsin 53403, appearing on behalf of the City of Racine, Wisconsin,
below as the City or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The Union requested, and the City agreed, that the Wisconsin Employment
Relations Commission appoint an Arbitrator to resolve a grievance filed on behalf of "Sign
HU-10." The Commission appointed Richard B. McLaughlin, a member of its staff.
Hearing on the
matter was held on October 11, 1999, in Racine, Wisconsin. A transcript of that hearing
with the Commission on October 21, 1999. The parties filed briefs by December 14, 1999.
The parties stipulated the following issues for decision:
Did the Employer violate the Collective Bargaining
when it filled the position of
Sign Mechanic (HU-10) on August 10, 1998?
If so, what is the appropriate remedy?
Management and Union Recognition
A. Recognition. The Employer does hereby
recognize the Union . . . as the sole collective
bargaining agency for all City employees of the Public Works System in the job
on Exhibit "A" . . . of the following related departments: Department of Public Works and
divisions thereof, namely: DPW Streets (and Alleys) Maintenance Division, DPW
Maintenance Division, DPW Solid Waste Division, DPW Bridges Division and DPW
Complex Division; Parks and Recreation Department and its related divisions thereof,
Cemeteries, Wustum Museum, Community Centers, Memorial Hall, the Zoo, and the
Division; and the Traffic and Parking Sytems (sic) Division of the Department of
Transportation . .
. . .
J. Decision of the Arbitrator. The decision of
the Arbitrator shall be limited to the subject matter
of the grievance and shall be restricted solely to interpretation of the contract area where the
breach occurred. The Arbitrator shall not modify, add to or delete from the express terms of
. . .
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.
. . .
B. Posting Departments.
For the purpose of defining departments as divisions for job postings,
the following will be classed as departments or divisions:
DPW Solid Waste
Recreation Community Services
Police Department Garage
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.
. . .
Hours of Work
. . .
Department of Transportation
Traffic and Parking System Division
Sign Mechanics 7:00
a.m. to 3:00 p.m. *
Parking System Utility Worker
5:00 a.m. to 1:00 p.m. *
Parking Meter Maint. Worker 7:00 a.m. to 3:00
Parking Meter Collector 7:00 a.m. to 3:00
Parking System Maint. Worker 5:00 a.m. to 1:00
. . .
The grievance form states the "applicable violation" thus:
On 10 Aug 98 the City of Racine filled the position of Sign Mech
HU-10. The City of Racine
failed to bargain the impact of the merger of Traffic into D.P.W. We feel this is a violation
ART. 12 sec. a, b, c, ART. 2 sec e and any other articles that may apply.
The grievance form states the "Adjustment required" thus: "Follow the language set
forth in the
contract and meet with Local 67 to bargain said impact as it has been done in the past." The
response notes: "This grievance is grossly untimely in accordance with Article III,
Procedure, insofar as the mergers of D.O.T. and Public Works took place in 1994 through
the Common Council."
The City posted the Sign Mechanic Position on July 23, 1998. The posting notes the
as a day shift position placed in the HU-10 wage scale. The parties do not dispute that the
was properly posted. Rather, the grievance questions the departmental preference afforded in
it. The City posted the vacancy city-wide, but granted first preference in filling the position
employes within the Department of Public Works (DPW). Prior to the 1994 City Council
referred to in the City's response, the preference would have been afforded to employes
Traffic Division of the Department of Transportation (DOT).
Through Ordinance No. 29-94, adopted in February of 1995, the City created
of its Municipal Code. That section states:
(a) There is hereby created and established the office of
commissioner of public works, and
the duties of the board of public works, as defined in the state statutes, shall be performed by
commissioner of public works. The commissioner of public works shall perform such other
further duties as may be imposed by law or designated by the common council.
(b) The commissioner of public works is hereby given and
have general control,
supervision and direction of the following offices and departments: Building inspection
electrical inspection department, plumbing inspection department, engineering department,
transportation department, equipment maintenance division, street maintenance division, solid
collection and disposal division, bridges, public buildings, specifically city hall, city hall
building, the central heating plant, and library and memorial hall.
The ordinance is a public record. It is undisputed that the City did not give formal
notice to the
Union of the changes effected by Sec. 2-531. It is also undisputed that the creation of
Sec. 2-531 has
not been submitted to the collective bargaining process.
Prior to the enactment of Sec. 2-531, the City operated the Traffic Division as one of
divisions within the stand-alone DOT. The City supervised unit employes within the Traffic
through a traffic engineer from DOT. Day to day supervision of unit employes changed on
retirement of this working supervisor. From his retirement, in 1998, day to day supervision
employes within the Traffic Division fell to a general foreman from the DPW. Other
changes accompanied the reorganization started by Sec. 2-531. For example, DOT
responsibility for vehicle maintenance to the DPW.
Changes to DOT occurred over a period of years. An internal memo from the
of Public Works to the Mayor, dated March 15, 1996, reflects that changes within the table
organization for the "Transportation Department" were being considered as "the second
potential changes which began . . . when the decision was made to place the Transportation
Department under the jurisdiction of the Commissioner of Public Works." Some of the
implemented by the City, such as the movement of vehicle maintenance from DOT to DPW,
prompt any Union challenge. Other changes did. For example, the Union unsuccessfully
impact of the City's refusal to replace the working supervisor from DOT. The Union's
asserted that the City spread the duties of the retiring supervisor among a number of unit
and that these employes should receive a reclassification, see City of Racine, MA-10362
The provisions of Article XII, Sections A, B and C, which are set forth above, have
changed since at least the 1990-91 labor agreement. In the bargaining that produced the
labor agreement, the City made the following proposal to the Union to amend
Articles II and XII:
Article II: Delete references to Cemeteries, Wustum
Museum, Zoo, and the Animal
Control Officer in the Recognition Clause. (page 2)
Article XII: B. Change from "Traffic" to
"Transportation-Parking", delete Zoo, Cemetery, Wustum Museum and Animal Control
References. (page 33)
C. Delete zookeeper
references. (page 36)
The Union did not agree to this proposal.
In the bargaining that produced their 1995-97 labor agreement, the City made the
proposal to the Union to amend Articles II and XII:
Article II, Management and Union
A. Recognition: Eliminate all
references to Cemeteries, Wustum Museum, Zoo, and
Animal Control Officer here and wherever else referenced in the contract.
Article XII, Job Postings
B. Posting Departments:
Eliminate references to Zoo, Cemetery, Wustum Museum and
G. Forestry and
Zoo Divisions: Eliminate all references to the Zoo in this Section . . .
J. Police Garage
Employees: Eliminate all language and references to Animal Control
The Union did not agree to this proposal.
The City viewed the proposals to amend the agreement regarding classifications
Traffic to be matters of house-keeping since the City no longer used municipal employes at
locations or in the classifications covered by the proposals. The Union would not agree to
changes, because it opposed the loss of positions in the listed classifications and locations,
to retain the contractual references in the event the City determined to return to the use of
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Brief
After a review of the evidence, the Union argues that Article XII, Section C, governs
grievance. The City's action undercuts that provision by "effectively reducing the chance of
senior employees not in the DPW" to fill the posting. This action is based on a change in
Municipal Code. That change was not, however, bargained with the Union, either at the
Code was changed or in any collective bargaining following the change.
Even if the change in the Code is considered relevant to the labor agreement, the
"does not identify traffic as a division of the DPW." Internal memos demonstrate that the
does not uniformly identify traffic as a division of the DPW.
Nor will the labor agreement support the City's position. Article II, Section A
bargaining unit and lists Traffic as part of the Transportation Department. Article XII,
lists Traffic as a separate department or division for purposes of posting. Beyond this,
lists Traffic as a part of the Transportation Department.
The Union then asserts that bargaining history fails to support the City's position.
has uniformly opposed City proposals to delete job titles with no incumbents from the labor
agreement. Even if the Union had not done so, the City's attempt to eliminate unfilled
the agreement cannot obscure that it has never proposed to eliminate contract references
departmental status to the Traffic Division. The Union concludes that accepting the City's
would permit it to eviscerate the labor agreement through unbargained City Council action.
It follows, according to the Union, that the "only logical conclusion that can be
reached is that
the City . . . did violate the express provisions of the Collective Bargaining Agreement when
the sign mechanic position on August 10, 1988." As the appropriate remedy, the Union
award that orders the City to re-post the job first within traffic and then . . . to all employees
City." The Union further requests "that the Arbitrator maintain jurisdiction over this matter
rectifying the situation could affect returning the individual awarded the job to his former
potential residual postings occurring after that date."
The City's Brief
After a review of the evidence, the City argues that it "correctly posted and offered
Mechanic position to the most senior employee within the Department of Public works." In
the City "legislatively" moved the Traffic Division into the DPW. This change cannot be
new by, or news to, the Union. Employes in the Traffic Division "are supervised by a
foreman from the Department of Public Works." Beyond this, the Traffic Division's "total
responsibility for vehicle maintenance was transferred to other Department of Public Works
divisions." The Union did not file any grievance "from either the employees who assumed
or those who relinquished the responsibility." That the Union filed a reclassification
protesting the changes establishes that the Union was well aware of the 1994 reorganization.
Nor can internal City documents be used to establish that Traffic remained a Division
the Transportation Department. The memo does not address the employes affected by the
and does no more than discuss a transitional phase of the reorganization. That the
Department "continues to call itself a department" has no significance here. The City notes
"Engineering Department, Electrical Inspection Department, Plumbing Inspection Department
all called departments" but "they do not stand alone as departments." The movement of the
Division into DPW does no more than was done with "the Maintenance Division, Solid
Division, Bridge Division and Equipment Maintenance Division."
The evidence establishes that the Traffic Division has been a part of the DPW since
enactment of Ordinance Sec. 2-531." The Union "knew or should have known the Traffic
was part of the DPW by the ordinance's public notice and hearings." Unit members
reorganization as part of their daily duties. This and past grievances show no more than the
attempt to "pick certain aspects of the change it does not like." The City concludes that the
must be held to the fact that it acquiesced to the departmental reorganization mandated by the
ordinance adopted in 1995."
The City concludes that there has been no contract violation, and that the grievance
Although the issue is stipulated, it poses a threshold ambiguity when viewed in light
grievance form. The stipulated issue questions whether the City violated the labor agreement
it filled the Sign Mechanic position. The grievance form cites Article XII as the governing
but also questions the City's obligation to bargain the merger of DOT and DPW. If viewed
bargaining issue, the grievance challenges the posting of the Sign Mechanic position as a
restore the pre-merger "status quo". If viewed as a contract interpretation issue, the
challenges the posting because the City violated Article XII by granting the Section C
DPW employes rather than to Traffic Division employes.
The City persuasively argues that the grievance does not pose any issue regarding the
propriety of the merger. The administrative changes following the merger, including those
in the Mawhinney award, preclude reading the grievance as a challenge to the merger. The
reclassification requests placed before Mawhinney were meaningless unless the merger is
taken as an
accomplished fact. This confirms the City's assertion that the merger of DOT and DPW
standing alone, pose an issue relevant to this grievance.
This does not, however, address the assertion that the City inappropriately applied
when filling the Sign Mechanic position. Under this view of the grievance, the issue is
City's merger of DOT and DPW renders meaningless the statement, in Section B, that
constitutes a separate division "(f)or the purpose of defining departments as divisions for job
Section C of Article XII grants a preference to intra-departmental applicants
positions posted under Section A of Article XII. Section C mandates the priority thus:
will be given first to the employees in the department and second to regular bargaining unit
in other departments." The interpretive issue posed by the grievance focuses not on this
on Section B, which defines "department".
The Union's position that the Traffic Division constitutes a "department" for posting
is persuasive. At a minimum, the language of Article XII, Section B, strongly supports the
position. Section B separately lists "Traffic" after stating "(f)or the purpose of defining
as divisions for job postings, the following will be classed as departments". It may be that
no longer constitutes a stand-alone administrative division, but it is undisputed that there are
employes within the Traffic Division. They may now be supervised from DPW, but both
arguments acknowledge that they are still identifiable as Traffic Division employes.
If it is presumed that the language of Article XII, Section B is ambiguous, the
interpretation still must be preferred. The language of Section B has been constant since at
1990. Whatever the administrative implications of the merger, Section B has continued to
"Traffic" as a "department . . . for job postings." The parties have not amended this
language at the
bargaining table. To sustain the City's interpretation would bring about a change in contract
never agreed to at the bargaining table.
In sum, under Article XII, Section B, Traffic remains a department for job postings.
Article XII, Section C, preference thus should have been afforded to Traffic Division
to applicants from other departments. The City's filling of the Sign Mechanic position thus
Before addressing the issue of remedy, it is appropriate to tie this conclusion more
the parties' arguments. The City asserts that the Union knew of the merger even though the
never expressly notified it. This point can be granted regarding the issue of bargaining the
impact. As applied to the interpretation of Article XII, Section B, however, the City's
demands concluding the merger automatically affected Section B by eliminating Traffic as a
department. This conclusion cannot be accepted without modifying the labor agreement.
B states "Traffic . . . will be classed" as a department "for job postings." There is no
Section B to indicate it is subject to unilateral City action.
This leaves the reference to "will" unmodified. That reference allows no room for
To eliminate Traffic as a division or department for job posting alters the language of Section
would violate the admonition of Article III, Section J that an "Arbitrator shall not modify . .
delete from the express terms of the Agreement."
It may be that the original basis for separately stating Traffic as a division for job
been diminished by administrative changes. This affords no persuasive guidance to interpret
XII, since the determination of the significance of departmental status is the parties' to make.
parties must agree to minimize or to eliminate the departmental status of the Traffic Division
an arbitrator can enforce that agreement.
Nor can the merger be analogized, as a matter of contract interpretation, to the
of unit positions. That Article XII, Section B lists unfilled classifications cannot obscure that
continues to employ unit members identifiable as Traffic Division employes. Section 2-531
refers to DOT as a department, as does the March, 1996 memo. These references, standing
have no contractual significance. They do not, however, stand alone. Article XII, Section
Traffic as a department for posting purposes. References to Traffic as a department in Sec.
and in the internal memo underscore that the contractual reference to "Traffic" as a
cannot persuasively be dismissed as superfluous.
This makes it impossible to characterize the elimination of "Traffic" from Section B
as a self-executing matter of contractual housekeeping. The ultimate authority of an
arbitrator is contract
language. Reading "Traffic" out of Section B rests on an arbitral inference that it should no
constitute a separate division for posting purposes. This improperly places arbitral inference
express contract language.
The issue of remedy is more difficult than is immediately apparent. At hearing, the
stipulated that the grievance demanded contract interpretation only, and posed no issue
remedy. The parties' post-hearing stipulation includes a remedial issue, but only the Union
addressed it. Because I am uncertain if the parties share a common view of the issue of
have decided to note the remedial issue in the Award below, and retain jurisdiction over the
grievance. This leaves resolution of the remedial issue unclear, and thus places it back in the
hands to determine if a stipulation is possible. If no mutual agreement is possible, the
jurisdiction permits further proceedings to address the dispute. This conclusion postpones
finality to the dispute, but assures that the issue of remedy will be fully argued by the
The Employer did violate the Collective Bargaining Agreement when it filled the
Sign Mechanic (HU-10) on August 10, 1998.
For the purpose of determining the appropriate remedy, I will maintain jurisdiction
grievance for a period of not less than forty-five days from the date of issuance of this
will permit the parties to determine whether a mutually agreeable remedy can be bargained.
stipulation on the issue is possible, then evidence or argument restricted to the issue of
Dated at Madison, Wisconsin, this 27th day of January, 2000.
Richard B. McLaughlin, Arbitrator