BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DRIVERS, WAREHOUSE AND DAIRY
EMPLOYEES LOCAL NO. 75
CITY OF GREEN BAY
(DEPARTMENT OF PUBLIC WORKS)
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney John J. Brennan, 1555 North RiverCenter Drive, Suite 202,
P.O. Box 12993, Milwaukee, Wisconsin 53212, for the Union.
Mr. Lanny M. Schimmel, Assistant City Attorney, City of
Green Bay, 100 North Jefferson Street, Suite 200, Green Bay, Wisconsin 54301-5006, for
Pursuant to a request by Drivers, Warehouse and Dairy Employees Local No. 75,
"Union," and the subsequent concurrence by the City of Green Bay, herein "City," the
was appointed arbitrator by the Wisconsin Employment Relations Commission on November
pursuant to the procedure contained in the grievance-arbitration provisions of the parties'
bargaining agreement, to hear and decide a dispute as specified below. A hearing was
the undersigned on February 2, 2000, at Green Bay, Wisconsin. The hearing was
parties completed their briefing schedule on April 12, 2000.
After considering the entire record, I issue the following decision and Award.
The Union frames the issues as follows:
1. Did the City violate established call-in procedures
and/or safety policies in requiring the
grievant to patch a hole on Velp Avenue on May 29, 1999 by himself?
2. If so, what is the
The City frames the issue in the following manner:
Did the City of Green Bay violate the collective bargaining
agreement by requiring the grievant
to patch a hole on Velp Avenue on May 29, 1999?
Having reviewed the entire record, the Arbitrator frames the issues as follows:
1. Did the City of Green Bay violate the collective
bargaining agreement by requiring the
Grievant to patch a hole on Velp Avenue on May 29, 1999?
2. If so, what is the
On Saturday, May 29, 1999, Jeff Schmechel ("Grievant"), a 28-year Department of
Works ("DPW") employe, was working scheduled overtime filling in for an employe on
His hours were noon to midnight.
At approximately 5:45 p.m., the Grievant received a call from the Green Bay Police
Department that there was a blowout on Velp Avenue at the intersection of Buchanan Street.
receiving the call from the Police Department, the Grievant contacted his supervisor, Gary
and they met at the site of the blowout. The Grievant was first instructed by Supervisor
to barricade the blowout. After reviewing the size of the blowout (large enough to close an
lane), the traffic (light to medium) and lighting conditions (good), and discussing the matter
DPW Operations Superintendent David Damro on the telephone, Supervisor Lemerond
the Grievant to repair the blowout.
The Grievant protested, both because this was the work of laborers, not a custodian;
because he felt that it was unsafe to work alone on a primary highway without proper
Grievant was concerned for his safety because this was similar to a situation in which a
working on a primary artery lost his leg when he was hit.
The Grievant removed the blown-out concrete, a process that took approximately
minutes. He then returned to the DPW shop, retrieved "cold mix" to patch the blowout,
the scene, and completed the repairs. The patching took approximately 15 to 20 minutes.
repairs were complete, the curb lane was reopened to traffic. The entire job, including
about an hour and 15 minutes.
A couple of years prior to this incident, Union Steward John Weid filed a grievance
was working as a laborer. He filed the grievance because "cold patching is a primary
and duty of laborers" and because "I believe I should have been afforded the opportunity to
overtime prior to individuals other than laborers." Instead, the City allowed truck drivers, or
classifications, to perform the laborers' work. Two other laborers filed grievances identical
at the same time. These grievances were settled with payment to Weid and his two
part of the settlement, the City agreed that "it's the laborers' job to patch." Superintendent
Damro took part in that settlement. He couldn't recall whether "emergencies" were
did recall that "scheduled was discussed because that's what the overtime was involved with.
scheduled overtime, not emergency overtime."
While custodians infrequently patch potholes, custodians have never been asked to
fix a blowout prior to the instant dispute.
. . .
(B) The City shall have the right at all times during the
existence of this contract, and
subject to provisions herein, to conduct its affairs according to its best judgment and the
competent authority, including the power of establishing policy to hire all employes, to
discipline for just cause, to lay off subject to provisions in the contract, and to determine the
means and personnel by which City operations are to be conducted.
(C) The City agrees it will not use these rights to interfere
with the employee's rights
established by law or by this agreement.
HOURS OF WORK
. . .
Call-In Procedure and Premium:
. . .
Employees who normally operate given equipment within a
category shall be given the first
opportunity for call-in or daily work assignments on that equipment.
. . .
In the event employees are called for emergency work, they
shall receive a minimum of three
(3) hours of pay at the prescribed rate of pay.
. . .
SIGN AND BARRICADE PROCEDURE
DEFINITIONS AND GENERAL CONSIDERATIONS
. . .
F. All signing and barricading associated with work
on public right-of-way shall conform to the
standards outlined in the latest edition of the following documents:
1. Part 6 of the
Manual on Uniform Traffic Control Devices for Streets and Highways
2. Traffic Control
Manual for Street Construction and Maintenance Operations in the
City of Green Bay.
. . .
. . .
E. For emergencies during off hours, the Custodian
shall place temporary traffic control under
the following circumstances:
1. If the obstruction can be signed and
barricaded safely with a minimal amount of traffic
. . .
3. For emergency bridge closures and larger
obstructions, the Custodian is responsible
for the installation of preliminary traffic control as instructed by the on-call Operations
Division Supervisor. Personnel shall be called in as outlined in Section G below to
place additional traffic control devices.
. . .
G. If Department of Public Works personnel are
required to place, maintain or remove traffic
control devices during off hours, the following procedures shall be followed:
1. The on-call
Operations Division supervisor shall call in Signs and Marking Section
personnel using the seniority principle.
. . .
POSITIONS OF THE PARTIES
The Union first argues that the City violated established safety policies by requiring
Grievant to patch the blowout on the date in question.
The Union next argues that the City did not assign the disputed overtime work to the
classification (Street Section laborers).
For a remedy, the Union requests that the City be ordered to cease and desist from
custodians to repair emergency or other blow-ups and make the proper assignment of that
the appropriate classification, and pay the appropriate employe within the appropriate
for all hours which would have been worked had the assignment been properly made.
The City initially argues that it properly directed the Grievant to repair the blowout
balancing competing safety interests with the short duration of the necessary repair work. In
regard, the City points out that the repair operation was of short duration, the Grievant was
adequately protected from hazards, and the operation was consistent with mutually-accepted
guidelines. The City also contends that the complicated signage suggested by the Union was
unnecessary and not required under the parties' mutually-accepted standards for maintenance
The City next maintains that the repair of the blowout was an "emergency" duty
meaning of the "DEFINITION" section of the custodian's job description. The
City also notes that
the brief repair of the concrete blowout by the custodian was consistent with the "Custodian
Guidelines for After Hours Calls". The City further points out that the repair of the blowout
custodian fell within a mutually-accepted past practice which provided, pursuant to City
custodians may be used to apply cold mix to potholes.
Finally, the City argues that the grievance settlement relied upon by the Union is
distinguishable from the instant dispute because: the 1997 grievance, unlike the Grievant's
was not an emergency situation; the 1997 grievance involved three workers working for three
or a total of nine hours of work, while the instant grievance involves a much smaller amount
and only one employe; and the core issue involved in the 1997 grievance did not involve
employes should be called in to work, but which employes should be
called in. (Emphasis in the
original). In other words, the City states that the Union challenged its action in the prior
because it believed the City offered the overtime to the wrong group of employes. In the
dispute, the City claims that the Union grieves the City's failure to call in workers. Because
involved in these two grievances are different, the City concludes that the Union cannot rely
Based on the above, the City requests that the grievance be denied and the matter be
At issue is whether the City of Green Bay violated the collective bargaining
it required the Grievant to patch a hole on Velp Avenue on May 29, 1999. The Union
the City violated call-in procedures and/or safety policies by the action noted above while the
takes the opposite position.
Patching the Hole
The first question before the Arbitrator is whether the disputed work was
performed by the Grievant or should have been assigned to laborers.
The record is clear that laborers normally patch blowouts. However, in the instant
City required the Grievant, a custodian, to patch the blowout. The City argues that it acted
in the instant case because the operation was of short duration, it was an emergency situation
Grievant was adequately protected from hazards. For the reasons discussed below, the
Situations arise in which there is a need for someone to perform specific work for a
period. Unions generally contend that management is obligated to assign that work to
carry it out regularly, even if that means resorting to overtime. Management, on the other
traditionally takes the position that it has the right to assign temporary work in whatever
enable it to be completed efficiently and expeditiously. The parties take similar positions
Arbitrators generally agree with management. Labor and Employment
1, Tim Bornstein, Ann Gosline and Marc Greenbaum General Editors, Chapter 24,
Disputes, by Neil N. Bernstein, s. 24.05, 24-22 (2000). This is particularly true where
there is an
"emergency" situation, and the work is a de
minimis departure from the contractual requirements.
Labor and Employment Arbitration, supra, at
Likewise, in Elkouri and Elkouri, How Arbitration
Works, 5th Edition, p. 709 (1997), the
authors state: "Management generally has been held to have considerably [sic] discretion in
situations to make temporary or emergency assignments of tasks across job or classification
In further discussion of "emergency" situations, Elkouri explains that "an employer was
assigning an emergency job that arose on a non-workday to the only two employes scheduled
on that day, despite the fact that the work did not fall within the duties of their job
Elkouri added: "The arbitrator stated that management should have the right to meet unusual
situations in this manner unless restricted from doing so by the agreement."
Applying the above standard herein, the record is clear that a custodian performed
normally done by laborers. However, in the instant case because the disputed work was a
amount (including travel not much more than an hour) and performed as a result of an
blowout on a major arterial during the Memorial Day weekend), the Arbitrator finds that the
The Arbitrator relies on the "Management Rights" clause, Article 2, to support the
conclusion. Said contractual provision states that the "City shall have the right at all times
existence of this contract . . .to conduct its affairs according to its best judgment." The
clause also provides that the City shall have the right "to determine the methods, means and
by which City operations are to be conducted." These management rights of the City are
by the "employee's rights established by law or by this agreement."
The Union does not persuasively argue, nor does the agreement provide, any express
contractual restrictions on the City's right to temporarily assign work during an
as it did in the instant case. (Emphasis added) It is true that the parties' agreement provides
employes who normally operate a piece of equipment within a category shall be given the
opportunity for call-in on that equipment. However, there is no evidence in the record that
special equipment was used to patch the blowout. It is also true that the agreement provides
"in the event employees are called in for emergency work, they shall receive a minimum of
hours of pay at the prescribed rate of pay." However, said contract provision does not
City call in employes for emergency work as argued by the Union. It simply states that if
are called in for emergency work they shall be guaranteed at least three (3) hours of pay at
The Arbitrator also rejects the Union's reliance on a past grievance settlement
distinguishable from the instant dispute. The most notable characteristic which distinguishes
grievance from the Schmelchel grievance is the complete lack of an emergency situation in
grievance. The prior grievance involved a pre-planned, scheduled operation to repair a
potholes. Tr. at 83 and Union Exhibit Nos. 5, 6 and 7. The existence of the potholes that
be patched was obviously known. In settling the grievances, the parties agreed that patching
belongs to laborers. Tr. at 88. However, the parties never discussed what would happen in
an "emergency." Tr. at 88. Schmechel's grievance, on the other hand, involved an
unexpected emergency situation. Based on same, the Arbitrator finds that the settlement
terms of the
prior grievance are irrelevant.
Another factor distinguishing the grievances is the size of the operation involved.
grievance involved three workers working for three hours, or a total of nine hours of work.
Exhibit Nos. 5, 7 and 8. This grievance involved a total of 30 to 40 minutes of
patching work by one worker. As noted by the City, this "crucial fact not only
distinguishes the two
grievances, it also supports the conclusion" noted above "that the instant grievance involved
isolated, emergency situation, while the 1997 Grievance involved a planned, scheduled
Finally, the core issue involved in the 1997 grievance did not involve
should be called in to work, but which employes should be called in.
(Emphasis in the original). The
Union challenged the City's action because it believed the City should have offered the
the laborers. In the instant grievance, the Union claims that the City had a duty to call in
patch the blowout, a claim which the City disputes. Because the issues involved in these
grievances are different, the Union cannot rely on the 1997 grievance settlement in support
The Union argues, however, that the patching work belongs to a laborer, not a
citing their respective job descriptions. In support thereof, the Union first contends that the
custodian's job description does not contain any duties which could reasonably reflect an
to assign street repair work beyond the emergency set-up of barricades. A review of the
job description, however, does not support the Union's contention. To the contrary, there
references in the custodian's job description that relate to street repair work. For example,
"DEFINITION" section of the aforesaid job description, reference is made to the
"emergency duties for the Department of Public Works." (Emphasis
in the original) Joint Exhibit
No. 5. Although "emergency" patching of blowouts is not specifically listed therein, said
fits within the general direction that custodians will perform "emergency" duties for the
Other references in the custodian job description also support the proposition that the
Grievant had a duty to perform such work under the circumstances contrary to the Union's
For example, the "DUTIES, RESPONSIBILITIES, AND WORK PERFORMED" section of
description refers to the following: "emergency set up of flashers" and "iron plates at unsafe
or conditions"; "handle emergency phone and radio calls and take proper actions
complaint or problem or call supervisor on call"; and "pick up debris
from streets in emergency
situations in after hour situations." (Emphasis in the original) Joint Exhibit No.
5. Finally, the
"PHYSICAL REQUIREMENTS" section of the job description includes the following:
and endurance to lift barricades, manhole and catch basin covers and shoveling of
sand, gravel and
other similar material." (Emphasis added)
The Union argues, contrary to the above, that pursuant to "CUSTODIAN
FOR AFTER HOURS CALLS" only in "small emergencies" is the custodian to take care of
problem himself. The Guidelines do provide that a custodian shall take
care of small emergencies while for major emergencies a custodian shall "call a
Supervisor on call" for problems such as "Cave-ins on highways or streets." However,
"Small" nor the "Major" emergency sections contains language which rules out the use of a
to patch the blowout on an emergency basis as he did herein or requires the City to call in a
to patch the blowout. Therefore, the Arbitrator rejects this argument of the Union.
It is true, as pointed out by the Union, that the particular work performed by the
patching the blowout is a specific function of a laborer. However, nowhere in the laborer
description is the requirement that a laborer must respond to all emergency situations or that
laborers may patch a blowout in an emergency. On the other hand, the emergency response
requirement is clearly a portion of the custodian's job duties. Based on the foregoing, the
rejects said argument of the Union.
Based on all of the foregoing, and the record as a whole, the Arbitrator finds that the
acted properly by assigning the disputed work to the Grievant.
A question remains whether the City adequately considered the safety of the Grievant
it ordered him to patch the blowout.
The Union first argues that it was important to get help for the Grievant because of
safety concerns on a primary system. In this regard, the Union correctly points out that Velp
is a highly utilized artery in Green Bay. While 35 miles per hour is the posted speed, 45
hour is the recognized speed on Velp Avenue in the area where the Grievant was working.
Tr. at 32.
Velp Avenue, with no stop lights between Military and the access to I-43 (a distance over
allows achievement of higher speeds. Tr. at 32, 44. In addition, there are many taverns
where the work was being performed, as well as other businesses including a bait shop and
service. Tr. at 32.
In support of the above argument, the Union relies on a directive from the previous
of public works, Richard Hall, to get help if necessary to perform repairs on the primary
at 33. However, there is no evidence in the record that said directive is in force under the
director of public works. In addition, the record is clear that the City did a careful balancing
interests and the exercise of common sense when it required the Grievant to patch the
May 29th. In this regard, the record indicates that both Gary Lemerond,
the supervisor on the site,
and David Damro, DPW Operations Superintendent, considered whether "it was a safe
not," before ordering the Grievant to perform the work. Lemerond felt the traffic was
at 66. Lighting
conditions were good, and the location of the blowout allowed for approaching traffic
to view the
site of the repair work for a long distance without obstruction. Tr. at 66-67. Damro asked
twice, whether in his opinion he had a safe situation there or not, and was told both times
felt it was safe." Tr. 81. An independent review of the site, as agreed to by the parties, Tr.
corroborates the City's assessment of the situation as a safe one for the Grievant to patch the
The Union next argues that a total of 700 feet should have been signed prior to the
the road. Because of the limited duration of the necessary repairs, however, elaborate
not required. According to Part VI, Standards and Guides for Traffic Controls
for Street and
Highway Construction, Maintenance, Utility, and Incident Management
Operations, the repair of
the blowout met the definition of a "short duration" operation because it took substantially
one hour to complete at the location in question. Joint Exhibit No. 8, p. 79 and Tr. at 20
The above document has been accepted by both parties though the collective
process as an appropriate guide in determining the set up of highway maintenance operations.
Exhibit No. 1, p. 31, lines 979-982. The guide states: ". . .it is generally held that
procedures may be warranted for short-duration work." Joint Exhibit No. 8, p. 80.
The guide adds
that any shortcomings in the control procedures "may be offset by the use of other, more
services such as special lighting units on work vehicles." Joint Exhibit No. 8, p. 80. The
. . .
Emergencies and disasters may pose severe and unpredictable
problems. The ability to install
proper traffic control may be greatly reduced in an emergency, and any devices on hand may
for the initial response as long as they do not themselves create unnecessary additional
the situation is prolonged, the standard procedures and devices set forth in this part of the
shall be used. . .
(Joint Exhibit No. 8, p. 93)
. . .
Applying the above standard, the record indicates, contrary to the Union's assertions,
Grievant's work site was adequately indicated to oncoming motorists at the work location by
arrow board on the vehicle which he was using, barricades placed near the work site by the
and the supervisor's vehicle, both of which physically blocked
oncoming vehicles from his work site. Tr. 64-66 and City Exhibit No. 1. If the
additional barricades were necessary, he had more barricades in his truck that he could have
Tr. at 68.
Changing the above procedure as requested by the Union would have unnecessarily
the motoring public to a lane closure for a substantially longer period of time. Tr. at 72.
to the mutually-adopted Part VI standards, a fundamental principle of maintenance operations
"traffic movement should be inhibited as little as practicable." Joint Exhibit No. 8, p. 13.
further points out regarding short duration activities: "There are hazards for the crew in
and taking down a traffic control zone. Also, as the work time is short, the time during
motorists are affected is significantly increased when additional devices are installed and
Joint Exhibit No. 8, p. 96.
Based on the above and the record as a whole, the Arbitrator finds that the City
considered the Grievant's safety during the brief repair of his blowout as well as other
including the risks to the motoring public from a lane closure for a lengthy period of time.
Grievant made the repairs in question in a rapid, efficient and safe manner. His exposure to
risk was of limited duration and further reduced by the vehicles and barricades which
work site. The agreement itself provides for "emergencies during off hours" that a custodian
place temporary traffic control when "the obstruction can be signed and barricaded safely
minimal amount of traffic control devices." The record supports a finding that the Grievant
to sign and barricade and patch the blowout in a safe manner.
In reaching the above conclusion, the Arbitrator is not unmindful of the Grievant's
that he was particularly concerned for his safety given the fact that a co-worker working
alone on a
primary artery lost his leg when he was hit. Tr. at 28. If there was any persuasive evidence
record that the Grievant's safety had been put in jeopardy by the City's decision to order him
the work in question, the Arbitrator would have reached a different conclusion.
Based on all of the above, and the entire record, the Arbitrator finds that the City of
Bay did not violate the collective bargaining agreement by requiring the Grievant to patch a
Velp Avenue on May 29, 1999, and it is my
That Jeff Schmechel's grievance dated May 29, 1999, is hereby denied and the matter
Dated at Madison, Wisconsin this 6th day of June, 2000.