BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL NO. 75
CITY OF GREEN BAY
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C. by
Attorney John J. Brennan, appearing on behalf of the Union.
Mr. Lanny M. Schimmel, Assistant City Attorney, appearing on
behalf of the City.
Teamsters Local No. 75, 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 arbitration of disputes arising thereunder. The Union made a request, with the
the City, that the Wisconsin Employment Relations Commission designate a member of its
act as an arbitrator to hear and decide a grievance over the meaning and application of the
the collective bargaining agreement. The undersigned was so designated. Hearing was held
Green Bay, Wisconsin, on November 4, 1999. The hearing was transcribed and
the parties filed post-hearing briefs. The parties reserved the right to file reply briefs. The
Union chose not to file one and
the City filed a reply brief which was sent to the Union on February 17, 2000.
On September 17, 1998, the grievant was a street sweeper operator in the
Works Department. Leo Werner was also employed as a street sweeper operator and due to
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work-related injury was in the Alternative Duty Program. The grievant has more
Werner. In making the job assignments for September 17, 1998, the grievant was
assigned to the
Sanitation Section and Werner was assigned to street sweeping duties because his injury
him from being assigned to the Sanitation Section. The grievant filed a grievance alleging
Alternative Duty Program does not take precedence over seniority and as the more senior
the grievant should have been assigned to the street sweeper. The grievance was denied and
to the instant arbitration.
The parties stipulated to the following:
Did the City violate the collective bargaining agreement by
allowing a less senior employe on
alternative duty to work in his classification while a more senior employe in the same
was assigned to sanitation for the day?
. . .
ALTERNATIVE DUTY PROGRAM
For the purposes of this program, light
duty shall be defined as any assignment in which the
employee is not required to meet all physical demands of his/her job or perform all essential
which are normally a part of his/her job as outlined in a City position description.
Participation in the
light duty program shall not cause the employee to sacrifice wages and/or sick time that
have been sacrificed otherwise.
Subject to the priorities listed in C(1)(b) of
this program, an employee shall qualify for light
duty when a physician indicated on an "Attending Physician's Return to Work
Record" that the employee is not capable of performing at full capacity.
To define the requirements for assignment
to alternative duty when an employee has returned
to work with temporary physical limitations following a work-related or off-duty injury or
Work-related incidents will have priority in placement within the Alternative Duty Program.
This policy applies to all City of Green
Bay regular full-time and regular part-time employees.
(a) Safety Office
1) Employees will be encouraged to
return to work as soon as possible following a disability.
2) Employees will furnish written
doctor's statements indicating return-to-work dates and work
restrictions, if any.
3) Employee's physician will be
contacted as necessary to explain the City's willingness to place
employees on alternative work duty and to further determine the physical restrictions of the
4) If doctors place restrictions on
employees, they will be asked to specify a certain period or to
establish review date on which restrictions will be reconsidered.
5) Follow-up will be completed for
all employees with work restrictions to determine if
restrictions are to continue or to determine when the employee is able to return to
6) The Safety Office will work in
cooperation with the Personnel Office and involved department
head to place the employee in a temporary position in keeping with their restrictions.
7) The City reserves the right to
schedule an exam with a medical practitioner of our choice.
(b) Personnel Office
1) The Personnel Office and Involved
Department Head will be responsible for placing
temporarily disabled employees on jobs in keeping with the restrictions imposed by the
are also responsible for any discussion with labor unions that may be necessary.
a) The Personnel Director will
redesign the job description to accommodate work parameters and
may negotiate same with Union.
2) Subject to the appropriate City
bargaining agreement, employees will be placed on alternative
duty in the following order of consideration:
a) Placing the employee on his/her
b) Transfer to a different job in the
c) Any position within the employee's
collective bargaining agreement.
3) The Personnel Office will refer all
questions on work restrictions to the Safety office for
discussion and resolution.
4) Employees temporarily placed on
alternative duty will receive regular full rate compensation.
(c) Department/Division Involved
1) Department Heads will work in
cooperation with the Personnel Office in placing temporarily
disabled employees on jobs in keeping with their restrictions.
2) Close follow-up will be undertaken
by supervisory personnel to ensure:
a) employees are working within
b) that the period of alternative duty
does not exceed that required by the physician.
1) Employees are expected to comply with requirements of
Safety and Personnel Offices with
respect to reporting requirements and physician visits. It is also expected that the employee
comply with physician's restrictions, advice and orders.
. . .
HOURS OF WORK
. . .
Call-In Procedure and Premium:
. . .
After going through the above call-in procedure and personnel
needs are still not met, the
master seniority list is to be used for further calling. Employees who normally operate given
equipment within a category shall be given the first opportunity for call-in or daily work
on that equipment.
. . .
WHEN WILL STREET SECTION
BE ASSIGNED BACK INTO SANITATION
January 24, 1995
From time to time, it becomes necessary
to temporarily assign Street Section employees to
work in the Sanitation Section. This may happen when the Sanitation Section is short
to approved leaves or when extra crews are needed to assist the regular collection crews.
If this happens during the period of time
when seasonal employees are employed in the
Department of Public Works, they are assigned first into the Sanitation Section ahead of any
Street Section employees. This is outlined in the labor agreement from lines 156
After all seasonal employees have been assigned back into the
Sanitation Section or during
the year when seasonal employees are not available, it has been common practice to assign
senior Street Section laborers who are traditionally the youngest employees of the Section.
available laborers have been assigned to the Sanitation Section and additional employees are
needed, they are assigned by using inverse seniority from the Street Section's overall
This is not outlined in the labor agreement but has been past practice. The only two (2)
from this practice are due to employees working on priority jobs or daily assignments within
classification if it is essential that assignment is completed that day.
The exception pertaining to priority jobs
has been discussed many times with the union during
meetings to set up these programs. The jobs or assignments which have priority are listed
All postings for these jobs indicate this will be your priority job when assigned.
1. Hot mix patching
2. Joint sealing
3. Loose leaf collection
4. Gradall operator and crew
5. Tub grinder
6. Patch truck
7. Overseeing workfare crew
The Union contends that under the call-in language of the contract, it states that
who normally operate given equipment within a category shall be given the first opportunity
for call-in or daily work assignments on that equipment" and the City ignored this language
in the instant
case, so the grievance must be sustained. It points out that the equipment assignment to a
employe and sending a more senior equipment operator to sanitation is unprecedented and
this is a
case of first impression. It refers to the City's policy dated January 24, 1995, which
lists only two
exceptions, neither of which is applicable here, and argues that the City must respect
seniority and must move individuals from street to sanitation by inverse seniority. It
the City cannot take an individual out of his classification out of seniority and send him to
involuntarily and assign a less senior person to run his equipment. It argues that because the
determined to run the street sweeper, the grievant should have been assigned to it or the
should not have run at all. The Union observes that the Alternative Duty Program arose out
City's desire to employ individuals who are injured to avoid paying worker's compensation
Union never agreed to sacrifice any of its seniority language or practices through the
use of the
Alternative Duty Program. It notes the Union protected itself by requiring the City to meet
discuss any situation where contractual rights might be compromised.
The Union alleges that the City could have put Werner in some other type of work
and it has
placed individuals into sanitation by inverse seniority according to binding past practice and
the first time it has attempted to ignore inverse seniority to fill sanitation positions. The
submits that it is irrelevant whether the grievant would have ended up in sanitation even if
did not run the street sweeper as the point is that it could not run the sweeper with a junior
and it is unimportant that alternative duty employes have been bypassed for sanitation
policy allows for exceptions to the seniority rule. The Union insists the City is seeking the
to assist it in establishing a new right to ignore seniority where it has never been allowed to
do so in
the past. It claims this is contrary to the contract language, the Alternative Duty Program
longstanding practice and it asks that the grievance be sustained.
The City contends that the Union has failed to cite any contractual provision or
practice which the City has violated. It points out that at the hearing neither the grievant nor
Union's business representative could point out any provision of the contract requiring strict
adherence to inverse seniority in moving alternative duty employes into sanitation. The City
that the memo dated January 24, 1995, does not apply to employes placed in the
Program and such employes may be skipped when assignments to sanitation are made. It
because alternative duty employes have routinely and consistently been excepted from being
to sanitation, the Union has failed to prove the City violated an accepted past practice; thus,
grievance must be denied.
The City contends that the contract language and past practice in similar cases
actions. It points to the language of the Alternative Duty Program which provides that
the program will be placed in his/her regular job, when possible. It maintains that the City
accord with this language in assigning Werner in his normal position of street sweeper
because of his medical restrictions, he was skipped over for sanitation. It claims this
preferred placement while on alternative duty would be without full meaning unless the City
the employe in their normal job and skip over them if medical restrictions prevent them from
performing the job they would otherwise be assigned. It insists that all words must be given
The City observes that the failure to place Werner in his normal job would risk a grievance
Werner that his rights under this language had been violated. The City alleges that the
position lacks any foundation in the contract or past practice and ignores the clear mandate of
alternative duty provisions.
The City claims that there has been a past practice of skipping alternative duty
they are unable to perform sanitation duties. The City admits that there are no past situations
to the instant case, so it is a matter of first impression. The City believes that the past
closely matching the instant situation is controlling and alternative duty employes can be
as they are now skipped when they cannot do their normal duties or sanitation duties. It
this procedure logically applies when all the facts are the same except the alternative duty
can perform his normal job duties. In each case, the employe cannot perform sanitation
the contract's preference for placing an employe in his regular job is given full effect. It
this avoids the absurd and illogical consequences which result under the Union's suggested
which is to place the alternative duty employe in a make-work job. It submits that this is an
to the alternative duty employe and the City as a person perfectly capable of doing his or her
job cannot do it but must squander a full day's work out of his or her usual capacity. It
result is absurd. It states that according to the Union's theory, Werner should not have been
to operate the sweeper on September 17, 1998, but taken off the machine and put in a
job and still the grievant would be assigned to sanitation. It maintains that neither the
the parties' practice contemplate this absurdity. It opines that the procedure suggested by the
benefits no one and places the City in an absurd position. The City submits that its actions
eminently reasonable and the most equitable response to the circumstances and the grievance
The Union chose not to make a reply.
The City contends that the Union failed to cite any contractual language in support of
grievance. It notes that the Union cited language from the call-in procedure but there is no
to seniority and as the title implies, this language only applies to situations where an employe
to work at a time he/she is not normally scheduled. It refers to the absence of any proof that
September 17, 1998 assignments were not normally scheduled work for the grievant
The City argues that the Union failed to demonstrate a binding past practice of assigning
to sanitation by inverse seniority. It takes the position that the Union makes contradictory
stating that the only exceptions to the policy are employes working priority jobs or daily
that must be completed that day while admitting that alternative duty workers were bypassed
sanitation. The City maintains that the only difference between the practice of skipping
duty employes for sanitation and the instant case is that Werner was able to perform his
The City disputes the Union's unsupported claim that the Alternative Duty Program
the City's desire to avoid paying worker's compensation to injured employes. It states that
program was bargained and mutually accepted by both parties. It also takes issue with the
allegation that the Union protected itself by requiring the City and Union to meet to discuss
situation where contractual rights might be compromised. It asserts that the plain language
contract, as well as testimony at the hearing, belies this inaccurate assumption. It refers to
contract which provides that any accommodations for persons on alternative duty "may" be
negotiated with the Union, noting that "may" does not mean "must" or "shall," so the plain
does not require such a negotiation. It seeks denial of the grievance for the reasons stated in
brief, as well as its reply brief.
The parties rely on different theories to support their respective positions.
The Union relies on the call-in procedure of the contract; however, the undersigned
this section is not applicable to the case at hand. The Union also relies on the City's
of January 24, 1995, which spells out the procedure for assigning Street Section
sanitation. The undersigned finds this memo is applicable to the facts at hand. The City
relies on the
Alternative Duty Program language of the contract to skip over a more senior employe in his
assignment who is then assigned to sanitation. Although the Union argued that the City was
moving force behind the Alternative Duty Program language, it is irrelevant as both parties
to the language and it appears that both parties benefit from the existence of the Alternative
Program. The issue presented is whether the Alternative Duty Program allows the City to
injured employes to perform a task which a healthy employe would normally be assigned by
of greater seniority.
The City claims that there is no contract language or past practice contrary to its
The City's memo of January 24, 1995, states that if additional employes are needed in
are assigned by using inverse seniority (Exhibit 8). It further states, "This is not outlined in
agreement but has been past practice." In Steelworkers v. Warrior Navigation Co., 363
574, 46 LRRM 2416 (1960), Justice Douglas stated:
The labor arbitrator's source of law is not confined to the express
provisions of the contract, as
the industrial common law the practices of the industry and the shop is
equally a part of the
collective bargaining agreement although not expressed in it.
The City's memo states the procedure is a past practice and the Supreme Court has
held that a past
practice is as binding as the language of the agreement; therefore, the past practice is binding
City. The memo states that assignments to sanitation will be by inverse seniority with only
exceptions. It does not list an exception for alternative duty personnel. A review of the
the Alternative Duty Program reveals that the City will attempt to place the injured employe
regular job, however Section C (1)(b)2) provides that this is subject to the collective
agreement. As noted above, the past practice requires assignment to sanitation by inverse
It is true that employes on alternative duty may be skipped from being sent to sanitation
are physically excluded by injury from performing sanitation duties. Also, Street Section
not assigned their normal duties or within one of the two exceptions are placed in the
and may be assigned to sanitation even though a less senior employe is not assigned to
In the instant case, the City contends that even though the senior employe could be assigned
normal duties, he may be sent to the "melting pot" and a junior employe on alternative duty
assigned the senior employe's assignment. That is what happened in this case and has not
before so this is a case of first impression.
The City is attacking seniority rights by displacing senior employes in their regular
a junior employe on alternative duty. The evidence that a more senior employe has never
displaced by a junior employe who then performs the senior's assignment while the senior
sanitation indicates a practice that senior employes are not bumped from their regular
accommodate an alternative duty junior employe who could perform this regular assignment
sanitation. The prevailing status quo is that the City did not
displace a senior employe on his regular
assignment with a junior employe on alternative duty and the City recognized this by the past
In other words, an alternative duty employe cannot be skipped so that a senior employe is
the "melting pot" but junior employes in the "melting pot" may be skipped and senior
the "melting pot" may be assigned to sanitation. (Tr. 28-30, 39, 44)
The City argues that it is illogical and absurd that an alternative duty employe can be
from going into sanitation and a more senior employe in the "melting pot" assigned to
the City cannot skip a more senior employe in his regular job and assign the alternative duty
to perform his regular job and instead must have the employe do a make-work job. The
arguments are appropriate for negotiations or to an interest arbitrator but under past practice,
the right to assign the alternative duty employe to perform his regular job which would be
by the more senior employe who is then sent to sanitation. It must be concluded that the
not have the right to give the junior employe on alternative duty what amounts to
in effect bump a senior healthy employe from his regular assignment so the senior can go to
and the junior perform the senior employe's regular assignment. If the City wants the Union
up the seniority rights of employes, it must be done at the bargaining table.
Only senior employes in the "melting pot" may be assigned to sanitation while junior
in the Alternative Duty Program may be skipped, but these junior employes cannot be
that a senior in a regular assignment is placed in the "melting pot" and sent to sanitation.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
The City violated the collective bargaining agreement by allowing a less senior
alternative duty to work in his classification while a more senior employe in the same
was assigned to sanitation for the day, and therefore, the grievance is sustained.
Dated at Madison, Wisconsin, this 3rd day of March, 2000.
Lionel L. Crowley, Arbitrator