BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
INTERNATIONAL BROTHERHOOD OF ELECTRICAL
LOCAL NO. 2150, AFL-CIO
CITY OF KAUKAUNA (UTILITY
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Naomi E. Soldon, 1555 North Rivercenter Drive, Suite 202,
P. O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of IBEW Local 2150,
joined by Attorney William H. Ramsey, on the brief.
Davis & Kuelthau, S.C., by Attorney Edward J. Williams, P.O.
Box 1278, Oshkosh, Wisconsin 54902-1278, appearing on behalf of the City of Kaukauna,
joined by Attorney Alysia C. Hopper, on the brief.
Pursuant to the provisions of the collective bargaining agreement between the parties,
International Brotherhood of Electrical Workers Local No. 2150 (hereinafter referred to as
Union) and the City of Kaukauna (Utility Commission) (hereinafter referred to as the City or
Employer) requested that the Wisconsin Employment Relations Commission designate Daniel
of its staff as arbitrator of a dispute over the reassignment of duties previously performed by
Hennes. The undersigned was so designated. A hearing was held on September 29, 1999,
Utility Commission offices in Kaukauna, Wisconsin, at which time the parties were afforded
opportunity to present such testimony, exhibits, other evidence and arguments as were
the dispute. The parties submitted post-hearing briefs, which were exchanged through the
undersigned on November 24, 1999, whereupon the record was closed.
6028 Page 2
Now, having considered the testimony, exhibits, other evidence, contract language,
arguments of the parties
and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The issues before the arbitrator are:
1. Does the arbitrator have jurisdiction over the Union's June 4,
2. If so, did the Employer violate the
collective bargaining agreement by reassigning Hydro rounds previously
performed by the grievant to other employes?
3. If so, what is the appropriate remedy?
. . .
. . .
A. Grievances to be processed within the grievance procedure
shall involve only matters of
interpretation, application or enforcement of the terms of the Agreement and, as such, only
items may be processed under the grievance procedure.
B. The grievance process must be initiated
by either party within ten (10) days of the alleged incident or within
ten (10) days of the aggrieved and the Business
Manager being aware of such incident. This provision shall not
be utilized to delay the filing of
grievances on the part of either party. Any grievance not reported or filed within the time
forth above shall be invalid.
Step 1. The aggrieved party and his
authorized representative shall present the grievance orally
to the employee's immediate management supervisor in the instance of a Union grievance or
Unit Officer or Steward in the instance of a management grievance and the parties shall
resolve the matter. The supervisors may consult with the Utility General Manager. If the
not resolved in ten (10) work days at this level it shall be processed as set forth in Step 2.
Step 2. The grievance shall be submitted in
writing to the Utility General Manager in the instance
of a Union Grievance or the Union Business Manager in the instance of management
appropriate Manager shall consider the grievance and give his response in writing within ten
work days. If the matter is not resolved at this level it may be processed as set forth in Step
. . .
RIGHTS OF EMPLOYER
It is agreed that unless otherwise provided or limited by this
agreement, the rights, function and
authority to manage all operations and functions are vested in the employer and include, but
limited to the following:
a. To establish and administer reasonable
rules and regulations essential to the accomplishment
of the Commission on services. All such rules shall be furnished in writing to the Union ten
prior to their effective date. The Union shall have the opportunity to object in writing in that
If no written objection is submitted, the rules shall become effective. If a written objection
submitted, the parties shall meet within ten (10) days to discuss the objection. However, no
primarily relating to wages, hours and conditions of employment may be implemented unless
agreed upon, or unless determined to be reasonable by a grievance arbitrator. Any rules
shall not conflict with applicable State or Federal laws.
b. To manage and otherwise supervise all
employees subject to this Agreement.
c. To hire, promote, transfer, assign, and retain employees and to
discipline or dismiss for just
d. To lay off due to lack of work within any
occupational group according to seniority.
e. To maintain the efficiency and economy
of the Utility operation entrusted to the administration.
f. To determine the methods, means and
personnel by which such operations are to be conducted.
g. To take whatever action may be
necessary to carry out the objectives of the Utility.
h. To exercise discretion in the operation of
the Utility, the budget, organiza-tion, assignment of
personnel and the technology of work performance.
i. To sub-contract when deemed necessary
for effective Utility operations. No employee shall
be laid off due to subcontracting of work normally performed within his departmental group.
. . .
WAGE SCHEDULE BY OCCUPATIONAL GROUP
BASE WAGE SCHEDULE EFFECTIVE
1-1-97 7-1-97 1-1-98 1-1-99
. . .
21.55 21.77 22.53 23.32
System and Operations Technician
21.55 21.77 22.53 23.32
Relief System Operator (while
21.55 21.77 22.53 23.32
(while plant maintenance) 19.89
20.09 20.79 21.52
Apprentice Operator (according to
. . .
The City is a municipal corporation providing general governmental services to the
people of Kaukauna,
Wisconsin. Among the services provided is the operation of a water and electrical utility.
The Union is the exclusive
bargaining representative for the Utility's non-exempt employes including Systems Operators.
In 1993, the grievant,
Paul Hennes, transferred into a newly created position of Relief System Operator (RSO).
Because of the salary
structure for his apprenticeship in the position, Hennes took a 12% pay cut and did not
return to 100% of rate for two
years. Initially, Hennes' duties included making rounds of the Water Department, the
Substation and the Power Plant.
Water Department rounds and Substation rounds each took approximately five hours per
week. Power Plant rounds,
commonly referred to as Hydro rounds, took three days. These rounds had been performed
by other employes, but
when the new RSO position was created, the Utility concentrated responsibility for the
rounds in that position. The
job description for Hennes' position in 1993 stated that "when not performing as a System
Operator this employee will
perform normal scheduled rounds of all Utility facilities and all departments and assist as
needed in other departments
of the Utility as needs may dictate." It then listed the following as illustrative examples of
the work to be performed:
As listed in the job description for the System Operator.
Perform power plant rounds and
Perform substation rounds and inspections.
Perform water department rounds and
Retrieve single phase meters from the field
Test single phase meters.
Rake trash racks as assigned.
Perform other utility duties as required.
Hennes performed all of the rounds from 1993 until the Spring of 1995, when the
Utility reassigned the Water
Department rounds to other bargaining unit employes. In the Fall of 1995, the Utility
reassigned the Substation rounds.
These transfers were made because employes in those departments wanted the work reserved
to their departments. No
grievance was filed over either transfer of work from his position. The following summer,
rounds were reassigned. The grievant protested this to his then-supervisor, Carl
Verhagen, and Verhagen agreed to
restore the rounds. The grievant continued to perform Hydro rounds until 1998, although
they were reduced from three
days per week to two days per week.
In January of 1998, the Utility decided to rotate the Hydro rounds among the grievant
and two other plant
maintenance employes. Its stated reason for doing so was a desire to have the maintenance
employes retain their
familiarity with all of the equipment. The change was effective on January
12th. The grievant told his supervisor that
he would probably take some action to protest the change. On February
3rd, he sent a letter to Union Business Agent
Ron Nyhouse, advising him of the change and protesting that he took the job, and the pay
cut, in 1993 because the mix
of duties was very attractive. The grievant asked the Union to pursue the matter. This letter
was copied to the Utility's
General Manager, Peter Prast.
In early March, Nyhouse spoke by telephone with Peter Prast about the grievant's
thereafter Prast met with the grievant to personally discuss the matter. The grievant wrote to
Prast on March 18th,
proposing a monetary settlement to compensate him for the loss of the rounds and for the
wage cut he took when he
initially accepted the RSO position. Prast, Nyhouse, Union President Mark Damro and the
grievant continued to have
informal discussions after the March 18th letter, until Prast sent a formal
reply on April 24th. In his letter, Prast told
the grievant that the reduction in wages in 1993 and 1994 should not have come as a surprise
to him, and that his pay
rate had been equitable when compared with other maintenance personnel. He declined to
make any monetary
settlement, and advised the grievant that the change in duties was designed to improve
operations and efficiency and
would not be changed.
On June 4th, the grievant submitted a written grievance protesting
the removal of the Hydro rounds. Six days
later, Prast denied the grievance, noting that it was not discussed at Step 1 of the grievance
procedure, and was
untimely. The matter was not resolved at the lower stages of the grievance procedure and
was referred to arbitration.
Additional facts, as necessary, will be set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Employer on Timeliness
The Employer takes the position that the grievance is clearly untimely and must be
to be arbitrable. The contract requires that the grievance process be initiated within ten days
incident or the Business Manager's knowledge of the incident, and if it is not the grievance
"invalid." The Utility removed the Water Department rounds and the Substation rounds in
One third of the Hydro rounds were eliminated in 1996. If the Union wished to assert that
rounds were the exclusive province of the grievant, it should
have done so then. It did not do so, and thus lost the right to make that assertion.
Even if a
grievance over the general question was not rendered invalid five years ago, the rotation of
rounds was effective on January 12, 1998. No grievance was submitted until June
4th. A delay of
over five months simply cannot be reconciled with a ten-day limit for submitting grievances,
arbitrator should not re-write the contract to allow this obviously stale complaint to proceed.
The Position of the Union on Timeliness
The Union argues that the grievance is timely, and that the arbitrator must proceed to
the merits. This is not
a case of anyone sitting silently on their rights for months and then suddenly filing a
grievance. The Utility knew, even
before it implemented its change in the rotation of Hydro rounds, that the grievant objected.
He stated his complaints
in writing to the Union and the Utility at the beginning of February. Thereafter, discussions
were on-going between
the Utility, the grievant and the Union on almost a continuous basis until it became clear that
there would be no
agreement. In fact, Utility General Manager Peter Prast wrote the grievant in late April,
responding to his proposal
to settle the matter. Obviously Prast knew there was a grievance pending, since he was
replying to a complaint about
a contract violation and a demand for a remedy.
The contract requires merely that the "grievance process must be initiated" within ten
days. Clearly this was
accomplished by the grievant's prompt verbal complaints and his follow-up letter of February
3rd. While the matter
was not subsequently put on a fast track through the grievance procedure, that is because the
parties were actively
trying to resolve the issue. Union President Mark Damro testified credibly that the parties
had always treated
settlement discussions as an extension of the time limits, and that the Utility had never
insisted, before June 10th, that
time was of the essence in moving grievances through the formal steps. The Union was
entitled to rely on the past
practice of the parties, and the Utility should not be permitted to deviate from that practice
without any prior notice
that it planned to do so. Thus, the arbitrator must reach the merits.
The Position of the Union on the Merits
The Union takes the position that the Utility violated the collective bargaining
when it stopped assigning Hydro rounds exclusively to the RSO. The collective bargaining
recognizes the RSO as a composite classification encompassing the jobs of Systems Operator
plant maintenance, and makes provision for distinct rates of pay, depending upon which
duties he is
performing. The contract assumes that this position will perform the duties of both jobs.
grievant relied upon this assumption, as well as on the
job posting's specific promise that Hydro rounds would be part of his duties, when he
took a pay cut
to transfer into the job in 1993. The Utility cannot simply change the premises upon which
bargained its contract and the grievant claimed his job.
The Utility claims that it has the right to determine the duties that an employe will
and this is true to a limited extent. The Utility has made minor changes in the past, such as
removed the Water Department and Substation rounds, and the Union has not challenged
changes. This right must be exercised within reasonable limits, and the Utility cannot claim
to unilaterally alter the fundamental character of a job. This is particularly true where, as
parties have traditionally negotiated over the major aspects of job descriptions. The rotation
eliminates two-thirds of his Hydro rounds, leaving him with less than a day a week on
is one-quarter of the original schedule of rounds for the RSO in 1993. The Utility cannot
contend, and the arbitrator cannot reasonably conclude, that the Union ever contemplated
the Employer an unfettered right to make such drastic changes in the content of a negotiated
For these reasons, the arbitrator should sustain the grievance, and order that the work be
to the grievant.
The Position of the Employer on the Merits
The Employer takes the position that the grievance is wholly without merit and
be denied. The
grievant's job description states that "when not performing as a System Operator this
employe will perform normal
scheduled rounds of all Utility facilities and all departments and assist as needed in other
departments of the Utility
as needs may dictate." There is no question that the grievant has performed rounds since
taking the job, and that he
continues to do Hydro rounds. The job description does not promise him that a certain
percentage of time will be spent
on rounds. This is a relief position and it is designed to be flexible, so as to meet the needs
of the Utility. Not only
has he continued to perform his duties per the original job description, the grievant himself
admitted at the hearing
that he had suffered no loss of pay, nor any reduction in hours. As there has been no
substantial change in his duties
and no loss of any kind, the grievant cannot make out a plausible basis for any grievance.
Even if the arbitrator concluded that there had been more than a de
minimis change in the grievant's duties,
the Employer notes that the collective bargaining agreement expressly reserves the Utility's
right to "determine the
methods, means and personnel" used to conduct operations, to "transfer and assign"
employes, and to maintain
"efficiency and economy." The arbitrator cannot ignore these clear provisions, since to do
so would be to exceed his
jurisdiction. The rights to create job descriptions and to assign and reassign tasks are clearly
encompassed in the
Management Rights provision. Utility General Manager Peter Prast
testified that he had never negotiated with the Union over job descriptions, though he
has discussed them in the context
of bargaining wage rates. Nor has the Union ever filed a grievance over any job description
in the past.
The Employer points to the removal of the Water Department and Substation rounds
as evidence that it
possesses the right to reassign tasks from one job to another. Precisely the same principle
was involved in those
decisions, and the same employe was affected. Yet there was no grievance. Indeed, those
removals were made because
other bargaining unit employes insisted that the work be transferred from the grievant to their
rotation here was likewise initiated for the good of both the Utility and other bargaining unit
employes. The change
was made in order to keep the two plant maintenance employes familiar with the plant's
equipment. The Employer
acted in good faith, and in accordance with both the clear language of the contract and the
past practice. In so doing,
it did no harm to the grievant. For these reasons, the arbitrator should deny the grievance in
Questions of procedural arbitrability present threshold issues for the arbitrator.
is simply the final step of the grievance procedure, not a separate forum for airing
the arbitrator's jurisdiction extends only to those grievances which have properly been
the final step under the terms of the grievance procedure. In this case, the Employer argues
grievance is untimely because it was not submitted to the General Manager until after the
limit in the collective bargaining agreement. This argument is not persuasive.
Addressing first the claim that the overall issue of the RSO's exclusive right to
rounds was settled in 1995, the arbitrator would simply reiterate what he said in his
ruling on arbitrability. The rotation system for Hydro rounds introduced in 1998 is a distinct
from the removal of the Water Department rounds and the Substation rounds in 1995. While
that those duties were removed from the grievant's position without protest by him or the
bode ill for the Union's prospects on the merits, it does not deprive the grievant of the right
the issue of the Hydro rounds.
Turning to the specific facts of this grievance, the grievance procedure requires the
grievant or the Union to
initiate the grievance process within ten days of the incident giving rise to the grievance or
the aggrieved and the
Business Manager becoming aware of the incident. No precise method of initiating the
process is specified. The
parties have ten days to discuss the grievance after the process is initiated, after which the
grievance must be presented
in writing to the Utility General Manager. The Grievant was told in January of 1998 that the
Utility was no longer going to give the Hydro rounds exclusively to the Relief System
Operator. He testified that he
complained to his supervisor, though he did not specify the precise date. Even if his
complaint to his supervisor did
not serve to initiate the grievance process, it appears that the first notice to the Business
Manager would have been
when the grievant sent his February 3rd letter to Nyhouse. That letter was
also copied to Prast. While the letter does
not say, in so many words, "I am filing a grievance," it clearly raises an issue related to the
or enforcement of the terms of the Agreement," which is the definition of a grievance. Thus
the initial filing of the
grievance was timely. Assuming for the sake of argument that the letter does not constitute a
written grievance, the
question then becomes whether the grievance thereafter became untimely because it was not
submitted on an official
grievance form until June 4th.
Testimony that there were discussions between Prast and the Grievant and Nyhouse
about the grievant's
complaints after the February 3rd letter is uncontroverted. Prast testified
that he had a discussion with the Grievant in
early March. Prast also testified that he had several conversations with Nyhouse about the
Grievant's situation between
March 18th and April 24th. The grievant then wrote a
letter to Prast on March 18th after which Prast testified that he
had several conversations with Nyhouse about the Grievant's letter. After the discussions
ended, Prast gave a written
response on April 24 and the grievance was not pursued further by the Grievant until June
4th. The testimony shows
no more discussions after April 24th.
The Employer argues that the grievance became invalid either 10 days after
February 3rd or 10 days after April
24th. In Article III of the parties' collective bargaining agreement, the last
paragraph after Step 3 states "Time limits
specified in Steps 1, 2 and 3 of the Grievance Procedure may be extended by mutual
agreement" (emphasis supplied).
In this case, both parties have been lax in complying with the contractual time limits when
they are discussing a
grievance. Mark Damro testified that the parties routinely ignored the timelines of the
grievance procedure while
trying to informally resolve issues, and Prast himself testified to an instance where he did not
comply with the time
requirements for an answer because the parties had been in discussions about the underlying
In situations where the employer and the union mutually extend the time limits by
discussing the grievance,
they are each entitled, within reason, to rely on that informal approach. While either party
may elect to stand on its
contractual rights to prompt grievance processing, it must first provide clear notice of its
intent to demand strict
adherence to the contractual timelines. See Elkouri & Elkouri, How
Arbitration Works, 5th ed. p. 277-78 (citing a line
of arbitral authority for the same proposition). Here, there is sufficient evidence to conclude
that the on-going
discussion between January and April constituted a mutual extension of the timelines in
accordance with the practice
of the parties. I further conclude that the informal approach to grievance processing at this
work place would require
before either party could stand on its right to demand strict adherence to the grievance
For these reasons, I find that the grievance is timely and is properly before the arbitrator.
The question on the merits is whether the Employer may unilaterally reassign a
portion of the grievant's duties
to employes in a different job description. The issue is not whether the receiving employes
may object to performing
the work. Those employes have not filed grievances and apparently do not object to
performing Hydro rounds in a
rotation with the grievant. The issue is whether the grievant may insist on retaining the sole
right to do the rounds.
Central to the Union's claim that he may is its belief that the Utility has negotiated the
content of the job descriptions
with the Union, and these are therefore bilateral agreements. In fact, it appears that the
bargaining is somewhat more
nuanced than that, as reflected by the testimony of Union Business Manager Timothy
. . .
MS. SOLDON: Do you recall discussing the job description for
the relief system operator in 1993?
A I don't-- I don't recall that being at the
bargaining table. I recall meetings in the summer sometime and talking
about the job, not at the-- at the bargaining table, but negotiating or talking, negotiating
during the summer about what
these people would do, at what percentage they would come in, and what they would be
Q Did you reach an agreement on
A We reached this piece of paper with a
wage associated with it and a percentage.
Q When you say, "this piece of paper," are
you referring to the '93--
A I'm sorry. It happens to be
opened in front of me.
Q The job description for 1993 for
the relief system operator?
Q Okay. Is it your understanding that the job descriptions are--
are something that's negotiated
with management or something that management has rights?
. . .
THE WITNESS: I guess I would have to -- Can I explain?
THE ARBITRATOR: Please do.
THE WITNESS: I think the way the Union
looks at the negotiation of job descriptions is that we do not very often
tell the Employer that we won't agree to some sentence or some phrase in the job
description. What we do with the
job description is by dealing with the wage and the percentage that the person starts at. The
feeling is that if there is
something in the job description that is more or less desirable by the Union, it would be
compensated for in the wages.
The problem we have is, that after we've
negotiated the wage for a-- for a job description, if we
feel that the job description has been changed by the Employer, then-- then the wage would
inappropriate. So that, therefore, we feel we've negotiated the whole package. You might
this is the wage paid for these duties. And that's where we think that we were at.
[Transcript, pages 103-105]
While Driscoll subsequently recalled that there had been discussions at the bargaining
table itself because of an
objection by an electrician to the RSO retrieving single phase meters, the substance of his
description is unaffected by
that correction. The Union's basic approach to bargaining over new job descriptions is to
assess the value of the job
and bargain a wage, and that is what it did in the case of the RSO. The importance of this
distinction is that it
recognizes that job duties are flexible within a job description, with the focus being on
whether the employe is
appropriately compensated for the job as a whole. Clearly the Employer has the right to
make some reallocation of
duties, since it entirely removed the rounds at the Water Department and the Substation,
without any protest from the
Union or the grievant. Thus the question becomes whether the reallocation of duties so
substantially changes the job
that it no longer matches the compensation that was bargained. I find that the changes are
not so significant as to
override the Employer's right to assign duties or to draw the negotiated pay rate into
The grievant is still performing the duties listed on his job description, including the
Hydro rounds. He is
simply doing the rounds less often. He concedes that his pay has not been affected, and his
hours of work have not been
affected. He does not contend that his work is harder or more complicated, only that it is
less to his liking. In short,
he does not
enjoy his job as much as he used to. Absent some unusual contract provision not in
evidence in this
case, that may be grounds for posting to another job, but it is not grounds for a grievance.
this observation, I do not intend to make light of the important principles raised in this case.
Employers find themselves increasingly in need of more flexible workers
as technology drives changes in many operations. At the same time, the gradual
alteration of jobs
over time is a serious issue for Unions, which as Driscoll testified, bargain wage rates based
existing bundle of duties at the time of negotiations, and which also have to be alert to issues
as de-skilling and the slow transfer of bargaining unit work to other bargaining units or
positions. None of those issues are raised by the grievant's complaint. The apportionment
within his job has surely changed, but the job itself remains as it was described in
1/ In considering this case, I have given no
weight whatsoever to the grievant's complaint that he took a
temporary pay cut to claim this job. While it is clear that he considers this an important
equitable factor, the logic
of his position is that his rights are somehow greater than they would be if he had received
an increase in pay when
he posted for the position. Outside of discipline cases, grievances are seldom driven by such
circumstances. The job was not designed with him in mind, and if there is any basis for a
grievance, it must be
found in the contract language equally applicable to all employes.
On the basis of the foregoing, and the record as a whole, I have made the following
1. The arbitrator does have jurisdiction over the Union's June 4, 1999
2. The Employer did not violate the collective bargaining agreement by
rounds previously performed by the grievant to other employes.
3. The grievance is denied.
Dated at Racine, Wisconsin, this 1st day of March, 2000.
Daniel Nielsen, Arbitrator