BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KAUKAUNA CITY EMPLOYEES UNION,
LOCAL 2150, IBEW
THE CITY OF KAUKAUNA
(Grievance of Gerald Kieffer)
Ms. Naomi E. Soldon, Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, S.C., 1555 North Rivercenter Drive, Milwaukee, Wisconsin 53212,
appeared on behalf of the Union.
Mr. Edward J. Williams, Davis & Kuelthau, S.C., Attorneys at
Law, 219 Washington Avenue, P.O. Box 1278, Oshkosh, Wisconsin 54903-1278, appeared
on behalf of the Employer.
On March 16, 1999, Local 2150, IBEW and the City of Kaukauna (Utility
requested that the Wisconsin Employment Relations Commission appoint William C.
member of its staff, to hear and decide a grievance pending between the parties. Hearing on
matter was conducted on June 18, 1999 in Kaukauna, Wisconsin. A transcript of the
was made and distributed by July 7, 1999. Post-hearing briefs were submitted, and
August 16, 1999.
This Award addresses the hours assigned to Gerald Kieffer, an employe of the Utility
Commission, between August 27 and September 17, 1998 when Mr. Kieffer was working in
office while on light duty due to an injury.
BACKGROUND AND FACTS
Gerald Kieffer, the grievant, has been employed by the Kaukauna Electric and Water
for approximately 17 years and holds the position of Lead Lineman.
Mr. Kieffer suffered a work-related injury on or about March 28, 1998 and
underwent surgery. Kieffer's physician authorized his return to work to perform light duty
week of May, 1998. The Utility placed him in the office department performing office work
this period. His work hours during this time frame were 7:30 a.m. to 3:30 p.m., his
hours in the line department as a Lead Lineman. Those hours differ from office hours,
to 4:00 p.m. He worked in the office department in a light duty status for approximately
three to four
Kieffer continued to suffer pain, and underwent additional surgery in July, 1998. For
several weeks, he was off work recovering from that surgery. On August 7, 1998, his
authorized his return to work with restrictions from the period August 24 to
September 21, 1998.
Kieffer's attending physician indicated his return was for "office type work only, paperwork
lifting, extended standing or bending." Further, the doctor indicated "Patient must be able to
left leg as needed to decrease swelling any concerns regarding this please
contact our office."
Kieffer approached Pete Prast, General Manager, to determine whether there was
available to meet the doctor's restrictions. Prast placed Kieffer in the office department
a computer project. This assignment was confirmed by memo dated August 28, 1998, which
TO: Jerry Kieffer
RE: Temporary Job Transfer
This memo is written to document your
temporary job transfer. Due to your light duty status,
you have been temporarily transferred to the office. This temporary transfer will continue
there is no longer any work for you to do or your work status changes. I anticipate that we
approximately two weeks of work in the office.
With a job transfer, you are expected to follow the work rules as
they pertain to the department
that you are currently assigned to. This means that work hours, lunch and coffee breaks,
be done in accordance to the regular practices of the office. Regular office hours are
Monday-Friday, with a half-hour unpaid lunch break.
You must understand that it is imperative
that we have all employes within the department
working under the same set of work rules.
I would be glad to meet with you to discuss
any of the items contained within this memo.
Upon receipt of the memo, Kieffer filed a written grievance
which takes issue with the hours
of work he was assigned. The text of that grievance provides the following:
This written grievance is a follow-up to my verbal grievance
8-27-98 to Pete Prast
concerning changing my work hours from 7:30 a.m. to 3:30 p.m. to 7:30 a.m. to 4:00 p.m.
unpaid 30-minute lunch. In Exhibit B, Work Schedule, my hours as a lineman are 7:30 a.m.
p.m., with a 15-minute paid break in the morning, and a 20-minute paid lunch break. I was
back to work on light duty because of knee surgery. A job was created to get me off
comp: this job is not a regular office job and I am contesting having my hours changed. All
people that have gone on light duty have been allowed to work 7:30 a.m. to 3:30 p.m. No
forced to change their hours. I have plenty of precedent not to have to change my hours. I
that the unpaid lunch be paid as overtime as I am working 8 ½ hours per day, 7:30
a.m. to 4:00 p.m.
Notwithstanding Prast's August 28 memo, Kieffer began his temporary assignment by
breaks timed to coincide with those taken by his regular work colleagues. He was
directed to work the schedule, including the breaks, taken by office personnel, and complied
Prast denied Kieffer's written grievance, by memo dated September 19, 1998. That
provides the following:
There are several statements in your written grievance which
need to be clarified. It is true
that you were brought back on light duty because of knee surgery. However, a job was
for you. The tasks that you were assigned was a specific project that is crucial for the office
able to bill out the new method of recovering the fire protection charges. This work would
done by office staff or ORCOM.
Other people that have been on light duty
have worked on projects that involved work within
an operating department, i.e. hydro, distribution, system operating and water departments.
that they worked coincided with the department's normal work hours. As was described to
you were working in the meter department your hours were changed to that department's
Your written grievance describes that the
work schedule has been violated. Schedule B
defines work schedules by job descriptions and departments, not by an individual's name.
27, 1998, you were noticed that you were temporarily assigned to the office and that you
expected to follow the same work rules as other office staff, including their work hours.
Since the work hours, as described in
Schedule B has not been violated your written grievance
The record contains instances of other employes who worked in the office, yet
alternative work schedule. Mr. Kieffer's daughter was employed as a non-bargaining unit
summer helper. Her normal work schedule was 7:30 a.m. to 3:30 p.m., though she
worked in the
office department. She worked alongside bargaining unit members whose hours were the
7:30 a.m. to 4:00 p.m.
Ken Arbs worked light duty in the office, alongside Kieffer, during Kieffer's first
assignment. Arbs worked in the same room performing the same work as did Kieffer in
Like Kieffer, Arbs worked 7:30 a.m. to 3:30 p.m.
In May, 1992, Gary DeBruin was an electric meter man. However, DeBruin was
to read meters for approximately 90 percent of his work time. This responsibility was not a
his meter man job. The hours of work applicable to a meter man under the contract in effect
time were 7:00 a.m. to 3:30 p.m. with a one-half hour lunch break. DeBruin was assigned
of a meter reader, which varied from his hours as a meter
man, in light of his assignment to read meters. The Union objected to the change in
In February, 1993, the parties reached an agreement resolving DeBruin's grievance. That
caused the summer hours of meter readers to be modified, and the employer agreed to pay
$600.00 in satisfaction of his grievance.
In approximately 1995, Robert Murphy, a bargaining unit employe, entered into an
with the Utility that he would work four 10-hour days, rather than the regular work hours of
operational department. The Union grieved, arguing that any time an employe worked in
eight hours per day was to be considered overtime. The grievance was resolved by restoring
to the contractual schedule of hours, and awarding him approximately $650.00.
In 1987, Ray Hardtke, a foreman in the water department was temporarily assigned
office. Hardtke had injured his knee and was restricted to light duty. During the period he
in the office, he worked operational, and not office, hours.
The parties were unable to stipulate an issue. The Union believes the issue to be:
Did the Utility violate the collective bargaining agreement when it
unilaterally changed the
grievant's hours; and if so, what is the appropriate remedy?
The Employer believes the issue to be:
Did the Employer violate the terms of the collective bargaining
agreement when it temporarily
transferred the grievant from the line department to the office department to perform light
if so, what is the appropriate remedy?
I believe the issue presented is:
Does the Employer violate the collective bargaining agreement by
requiring an employe classified
as a Lead Lineman to work the hours of the Office Department when it transfers that
employe to the
office to perform light duty work? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
WORKING HOURS AND RULES
. . .
Section 4. Work schedules contained in Exhibit "B".
Exhibit "B" is attached hereto and is part
of this Agreement.
Section 5. All work performed
by employes outside of regular hours or scheduled shifts, shall
be paid for at the rate of time and one-half, except that work performed on Sundays shall be
at double time, and men shall not be required to take time off during a regular working day
overtime worked, or to be worked. System operators are to be paid on calendar Sundays as
schedule to work and works one and one-half times, not scheduled to work and works (2)
. . .
Section 16.1. When an employe is temporarily
transferred by his supervisor for at least 4 hours
from the occupation in which the employe is regularly classified to another occupation, and
such occupation has a higher wage rate than that of the employe's regular occupation, the
shall be so notified, and shall be placed in the lowest wage step of the occupation to which
temporarily transferred which will provide an increase in wage rate.
WORKING HOURS EFFECTIVE JUNE 1, 1993
All Year Hours
Office 7:30 a.m. to 4:00 p.m. with One Half
Hour Intermission for Lunch
Hours for Line Dept., Water Dept.,
Auto Mechanic, Janitor Stores Clerk, Distribution Aide,
Substation Dept., Power Plant Maint., Meter Reader Dept., and Electric Meter Dept. are
from 7:30 a.m. to 3:30 p.m. with a 15 minute paid break in the morning and a 20 minute
lunch break. All breaks are to be taken at the job site.
Five days beginning Monday morning and
terminating Friday evening shall constitute a week's
work for all except System Operators
. . .
Relief System Operator is scheduled for 12M 8A Friday
The work week for the Relief System Operator shall be Sunday
through Saturday. Work
schedules shall provide that the employee in this classification shall have two consecutive
within the specified seven day period and shall further provide that the employee shall not be
home once he/she has been scheduled to report for work and has so reported. For purposes
scheduling the Relief System Operators, the senior Relief System Operator will be offered
preference on System Operator work after the junior Relief System Operator has been
one day of System Operator work per week. This provision shall not be administered to
When the Relief System Operator is filling
the weekly vacation or illness (seven (7) days or more)
of a System Operator, that person shall follow the seven (7) day weekly schedule.
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:
. . .
C. To hire, promote, transfer, assign, and
retain employes and to discipline or dismiss for
just cause. . .
POSITIONS OF THE PARTIES
It is the position of the Employer that the contract is clear and unambiguous in
stating that the Utility has the right to transfer employes and to require transferred employes
to the work hours of the department to which they are transferred. The Employer points to
XI and Exhibit B in support of this contention. The Management's Rights clause of the
is alleged to clearly and unambiguously give the Utility the right and discretion to transfer
assign personnel, and to maintain the efficiency and economy of the Utility's operations.
have agreed, in Exhibit B of the labor agreement, that employes working in the office
expected to work from
7:30 a.m. to 4:00 p.m. Because employes in the line department work from
7:30 a.m. to 3:30 p.m.
and take their paid break and paid lunch break at the job site, those periods are not duty free
office department. Because the paid break and lunch period time is considered work time, it
compensable and therefore the linemen get off work at 3:30 p.m. Such is not the case for
department employes who receive a one-half hour unpaid duty free lunch break. Since office
department employes get 30 minutes off duty free for lunch, they work until 4:00 p.m. The
cites arbitral authority in support of the proposition that when the language of the Agreement
and unambiguous, arbitrators will not give it a meaning other than that expressed in the
Maintenance of commonly worked hours is important to the Utility in order to
efficiency and economy of the Utility operations, a right expressly retained by the Utility
XI of the labor agreement. When Kieffer was temporarily transferred by the Utility from his
lineman position in the line department to the office department, he was classified as an
department employe, and as such he was required to work the particular schedule of the
In the past, the Union has relied on the clear and unambiguous language of the labor
agreement that the work hours set forth in Exhibit B must be adhered to. The Employer
the DeBruin and Murphy incidents as evidence of this position.
It is the view of the Employer that even if I were to assume for the sake of argument
contractual language is unclear and ambiguous, the factual circumstances involving Murphy
DeBruin, Hardtke, Arps and Kieffer do not rise to the level of a past practice. The
arbitral authority defining the creation of a past practice, and goes on to contend that the
practice standard has not been met in this dispute. The Employer contends that all of the
noted by the Union in support of its contention that a practice exists are distinguishable from
of this dispute in that Kieffer was temporarily transferred and that was not the case for any
predecessors. With respect to Amy Kieffer, the Employer notes that she was not a member
bargaining unit, that she was summer help, and that she was therefore not subject to the
terms of this
Agreement. Murphy was not a transfer situation, but rather a circumstance in which Murphy
negotiated a work schedule with the Utility, independent of the Union. Under the DeBruin
DeBruin had been assigned to work office hours when there was more than one meter reader
contrary to the express provisions of the collective bargaining agreement which then stated:
When on summer hours, one man will have the same hours as the
office. If man who normally
works the same hours as the office is unavailable for work, office hours will be worked by
meter department employe.
The Employer contends that DeBruin would have been the second bargaining unit
working office hours. The practice of so doing conflicted with the specific provisions of the
That was the basis for sustaining DeBruin's grievance.
The Employer contends that the sum total of the above instances do not rise to the
being readily ascertainable over a reasonable period of time as a fixed and established
accepted by both parties.
The Employer contends that the mere non-use of a right it possesses does not entail
and cites arbitral authority for that proposition. The Utility has always retained the right to
employes to work the hours of the department to which they are assigned including those
who have been transferred. This is due to the explicit, clear and unambiguous provisions of
The Employer points to the hours worked by relief operators and contends that
lack of language expressly so stating, when not operating, relief system operators work the
the maintenance department. As such, there exists a long standing practice supporting the
Employer's position that transferred employes do not carry with them the hours of their
department. The Employer notes testimony which indicates that relief system operators work
hours of the position to which they are assigned and they do this based simply on the
It is the Employer's claim that adoption of the Union's position would impermissibly
provisions of the Management Rights clause meaningless. If the Agreement is read such that
lineman was never required to work any hours other than the line department hours the
lose its right, under the Management Rights clause, to transfer and assign employes; a right
specifically retained. However, if the arbitrator accepts the Utility's understanding that the
terms of the Agreement specifies hours for certain departments, and the proposition that
employes work the hours of the department to which they are transferred, all words in the
are given effect.
It is the position of the Union that the Utility violated the Agreement when it required
to follow the office department's hours during his temporary light duty assignment. The
bargaining agreement provides that employes follow their classification's work schedule.
Agreement lists two sets of work schedules for Utility employes. Because Kieffer is
classified in the
line department his hours under the Agreement, like all other employes in the
departments, is 7:30 a.m. to 3:30 p.m. When Kieffer worked in the office he was still
a lineman. It is the Union's view that the Agreement clearly sets forth the line department
and provides no exception to that schedule for employes temporarily transferred.
Since the Agreement provides, Article IV, Section 5, that "all work performed by
outside of regular hours or scheduled shifts, shall be paid at the rate of time and one half",
entitled to receive overtime for the 30 minutes he was required to work past his normal
of 3:30 p.m.
Citing authority that a work schedule is an enforceable provision of the Agreement,
goes on to argue that if the Employer is allowed to ignore the normal and fixed hours and
days as set
forth in the Agreement, the contractual schedule will have no meaning. The Union cites
the proposition that broad statements of managerial powers contained in management clauses
form the basis for disregarding rights clearly conferred by other specific provisions of such
The Management Rights clause does not give the Utility the authority to disregard the work
The Union argues that the fact that Kieffer retained his lineman wages, as opposed to
to work at the lower office employe wages, further indicates that Kieffer maintains his line
status while transferred for light duty.
The Utility's reliance upon the fact that the relief system operator works two different
of hours as a basis for requiring Kieffer to work office department hours during his light
assignment is without merit. The relief system operator works the system operator's hours
filling in for the system operator, and works the power plant maintenance hours at all other
the Agreement requires. There is no parallel provision providing that manual/operational
work office department employes' hours when temporarily assigned to the office.
The Union contends that the parties' past practice dictates that Kieffer was entitled to
his regular work schedule. The Union points to the various incidents set forth above and
that they form a practice which the Utility has consistently acknowledged in the past, that it
now free to ignore. The clearly enunciated and understood past practice has been that light
transferred employes work their regular classification's hours regardless of where they are
By its grievance settlements, the Utility has acknowledged that it may not unilaterally change
employe's work schedule, and that if it does, it must compensate the employe accordingly
schedule according to the Agreement.
The Employer contends that the contract provides that it has the clear and
to transfer. That contention is not meaningfully in dispute. Disputed is the Employer's
contention that the contract unambiguously provides for transferred employes to work the
the department to which they are assigned. No explicit provision of the contract so provides.
the Employer's contention that Exhibit B establishes the working hours for
respective employes and compels a conclusion that employes assigned to those
subject to the enumerated hours. That is certainly a logical reading of Exhibit B. The Union
contends that Exhibit B provides that employes assigned to the positions set forth in the
subject to the hours which accompany their respective position. While not as obvious a
of the clause, the Union's interpretation of the provision is not without support. While some
references are to departments, i.e., line department, others are to individual positions, i.e.,
mechanic. The clause is highly abbreviated, and lacks language detailing the impact on
resulting from a transfer, or reassignment. In summary, I do not believe that Exhibit B
unambiguously provides that an employe transferred from one department to another is to
the hours of the new department.
The Employer makes a corollary argument that its failure to exercise its managerial
not result in an atrophication and loss of those rights. I agree with the assertion. However,
it is the
essence of this dispute as to whether the Employer possesses those claimed rights. The
claim in this regard implies a failure to exercise a held right, or the absence of circumstances
would give rise to the opportunity for the Employer to exercise such rights. That is not what
occurred here. To the contrary, this employer has repeatedly encountered circumstances
employes working hours which varied from those of the department to which they were
created a problem; or where the Employer assigned departmental hours, was challenged, and
its course in the face of challenge. This is not a case in which the Employer lacked the
to exercise an existing but unutilized right.
The Employer contends that its efficiency needs, reflected in the Management Rights
provision of the Agreement, are served by its construction of the labor agreement. I agree.
I also agree with the Union's claim that general management prerogative, articulated in the
Management Rights clause, cannot trump rights otherwise found in the Agreement. The
whether the workplace would operate more efficiently if the work schedules of individuals
same department were common is a separate question from whether that has been
the provisions of the labor agreement. It is the latter question, and not the former, that I
jurisdiction to address.
The parties do not dispute the standard against which a past practice is established.
to establish a practice, it is binding where the practice is: (1) unequivocal; (2) clearly
acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and
practice accepted by both parties. It is against that standard that the incidents set forth in this
must be measured.
Kieffer's daughter was employed, as summer help, in the office assisting a regular
worker. That worker had been injured and was unable to enter information into the
Kieffer worked alongside the woman entering the data. The two women worked different
The Employer is accurate in pointing out that Ms. Kieffer, a non-bargaining unit member,
covered by the provisions of the labor agreement. As a seasonal employe, Ms. Kieffer could
enforce, through the filing of a grievance, the provisions of the Agreement. What is
about Ms. Kieffer's experience is the voluntary nature of the assignment of her hours. The
allowed Ms. Kieffer to work non-departmental hours, even though her work was coordinated
a departmental employe who worked different hours, though not required to do so by the
What this suggests, is that such a scheduling was an understood dimension of the workplace.
Arbs and Kieffer performed light duty in April and May of 1998. In their light duty
each held their non-office hours schedule of work. These assignments were at the direction
Employer, and occurred immediately before the facts giving rise to this dispute. In May of
years preceding the grievance, DeBruin successfully challenged a change in his hours in light
assignment to read meters. Both parties claim the DeBruin incident supports their respective
positions. The contract language noted by the Employer clouds the DeBruin grievance as
building. However, the fact remains that with DeBruin, the Employer ultimately paid
overtime as a
consequence of scheduling him for hours of work different from those he enjoyed as a meter
I do not find the Murphy incident particularly helpful. Murphy evidently entered into
agreement with the Employer to work a schedule of hours nowhere found in the labor
The Union intervened and compelled the Employer to change Murphy's hours, and to pay
for overtime. The sole contribution of the Murphy grievance to this dispute is it contributes
understanding of how the parties have handled remedies in situations like this.
I believe the Hardtke matter, which occurred approximately 11 years before the
giving rise to the grievance, is on point. Finally, I note there are no incidents advanced by
Employer where it successfully caused a bargaining unit member to work a schedule of hours
than those assigned to that member's original classification.
In summary, I believe a practice exists. I believe the events set forth above to be
All incidents either support the Union's interpretation of the language or are consistent with
view. A number of the incidents are contrary to the view of the Employer. I believe the
clearly enunciated and acted upon. These parties have fought over their competing
of Article IV and Exhibit B, and in each instance, the Employer has backed down. This is
situation where some procedure exists sub rosa, and is only
belatedly discovered by the Employer. The practice has existed for a considerable
period of time.
There is an 11 year span indicated in the record. While there are relatively few incidents to
those incidents appear to comprise the universe of the parties' experience. These work
constitute an administrative headache for the Employer. There are incidents of grievances
apparently sustained, with the Employer paying out monies in overtime to employes
impacted by the Employer's hours assignment. The practice is fixed insofar as there are no
The Employer contends that this grievance is distinguishable from all matters cited
that the matters above did not involve formal transfer. I believe this to be a distinction
meaning. There is no indication that the Employer has suddenly come upon transfer rights,
lacked in the past. Like previous incidents, this is a short-term assignment. Prast' August
suggests a two-week duration. The move was prompted by Kieffer's injury. Kieffer retained
of pay. The Employer's claim that it possesses transfer rights is simply a new argument in
dispute. It is an argument that should have been raised when the practice began to take root
I do not believe the hours of work of the relief system operators shed any light on the
giving rise to this Award. The relief system operators' work schedule is set forth in a
paragraph of the Agreement. This schedule is open-ended, in contrast to the schedules
this proceeding which are specific as to the days of the week, hours of the day, and breaks
defined to the minute. The nature of their work is such that their assignments, and hours,
according to task. They thus stand in stark contrast, both practically and contractually, from
employes whose hours are addressed in this Award.
Finally, the Employer contends that the construction of the agreement urged by the
renders portions of the collective bargaining agreement meaningless. I disagree. The
continues to have a right to transfer. This Award concerns a dispute over the parties'
Exhibit B. The question presented is whether employes assigned from one department to
carry their original departmental hours of work with them. Because I regard the parties'
as indicating they do, I so construe the Agreement. That is not incompatible with the
right to transfer.
The grievance is sustained.
The Employer is directed to pay Kieffer, at the appropriate overtime rate, for hours
outside those set forth as applicable to the Line position.
I will retain jurisdiction over this matter for a period of sixty (60) days, unless
the parties, to resolve any dispute over back pay.
Dated at Madison, Wisconsin this 19th day of May, 2000.