BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LA CROSSE CITY EMPLOYEES' UNION LOCAL 180,
SEIU, AFL-CIO, CLC
CITY OF LA CROSSE (HIGHWAY)
Davis, Birnbaum, Marcou, Seymour & Colgan, by Attorney James G.
Birnbaum, 300 North Second Street, Suite 300, P.O. Box 1297, La Crosse,
Wisconsin 54602-1297, appearing on behalf of the Union.
Assistant City Attorney Matthew J. Fleming, City Hall, 400 La
Crosse Street, La Crosse, Wisconsin 54601, appearing on behalf of the City.
La Crosse City Employees' Union Local 180, SEIU, AFL-CIO, CLC, hereafter
City of La Crosse (Highway Department), hereafter City or Employer, are parties to a
bargaining agreement that provides for the final and binding arbitration of grievances arising
thereunder. The Union requested, and the City concurred, in the appointment of a
arbitrator to resolve a pending grievance. The undersigned was so designated and an
hearing was held in La Crosse, Wisconsin on March 20, 2000. The hearing was not
record was closed on May 18, 2000 upon receipt of post hearing written argument.
The parties stipulated to the following statement of the issue:
Did the City violate Article 10, and Memorandum of
Understanding #7, and the wage scale
provisions of the collective bargaining agreement when it
failed to include the new Log Loader under
the Equipment Operator III classification?
If so, what is the appropriate remedy?
Matters involving the interpretation,
application or enforcement of this contract shall constitute
a grievance under the provisions set forth below:
Step 1. The employee shall
meet with and discuss the grievance with their immediate
supervisor, with union representative present, within thirty (30) calendar days or by the first
regular working day following thirty (30) calendar days, of the date the employee should
known of the grievable matter. If no solution is reached the employee may,
Step 2. Reduce the grievance
in detail to writing within seven (7) calendar days following
the meeting, using an "Initiation of Grievance Form" and submit it to the supervisor who
forward it to the Director of Personnel, who, with the Department Head, within ten (10)
working days (Monday through Friday, excluding holidays) shall attempt to resolve the
grievance and answer the grievance in writing. Within those ten (10) working days,
representatives of the Union, the grievant, the Personnel Director, the Department Head and
the supervisor shall meet to attempt a resolution of the disputed matter.
Step 3. If a satisfactory
solution cannot be reached, the Union may, within thirty (30)
calendar days of the grievance meeting, appeal to the Wisconsin Employment Relations
Commission who will appoint a neutral arbitrator. The Union shall copy the City on all
requests for grievance arbitration, the findings of the arbitrator to be final and binding on the
It is understood that the 30 calendar day
requirement to file a grievance in Step #1 above shall
be interpreted to mean the next regularly scheduled working day that both the employee and
supervisor are present at work.
The parties may by written agreement
extend the time limits contained in the grievance
The arbitrator shall not add to, or subtract
from the terms of this agreement.
The City and the Union agree that the
decision of the arbitrator shall be final and binding on both
The grievance procedure set forth herein
shall be the exclusive complaint of any employee as to
any matter involving the interpretation or application of this agreement.
All complaints originating in all City
departments shall be handled in the manner outlined above
and no deviation therefrom will be permitted. Specifically, employees are prohibited from
such complaints, formally or informally to officers of the City of La Crosse not included in
Members, stewards, officers/or
representatives of the Union are permitted to discuss and/or
adjust the grievances between an employee and his/her supervisor during or after regular
hours. In carrying out the above duties the parties shall not interfere with the normal and
operation of the department. A person(s) acting in the above capacity shall suffer no loss of
said action. A grievance shall be adjusted on an individual basis unless otherwise agreed to
parties. No members, stewards, officers/or representatives of the Union shall be harassed
performance of their duties in discussing and adjusting grievances.
. . .
WAGES AND SALARY SCHEDULE
. . .
The City shall notify the Union, upon
receipt, of the purchase of a new piece of equipment
for the purpose of negotiating the equipment's appropriate placement in one of the existing
pay categories contained in Memorandum of Understanding #7, attached.
. . .
EQUIPMENT/JOB CLASSIFICATION LIST
November 9, 1999
Ken Iverson, President
SEIU Local #180, AFL-CIO
812 Kane Street
La Crosse WI 54603
RE: Memorandum of Understanding #7
Equipment/Job Classification List
This letter is to confirm the understanding
reached by the parties during negotiations for the
2000-2001 collective bargaining agreement. The following was agreed to:
SEIU Local 180 City of La Crosse
. . .
H. EQUIPMENT OPERATOR II
Articulated end loader, 130 horsepower,
26,000 lb or greater
Street sweeper heavy
approx. 76 horsepower, 16,900 lb. or more
Tracked dozer or loader
Roller, self propelled, approx. 89
horsepower, 16, 900 lb. or more
Vacuum catch basin cleaner truck
Motor grader used for alleys or
Screed operators, paving machine
Airport big fork lift
I. EQUIPMENT OPERATOR III
Norland snow blower Airport
Combination sewer flusher/vacuum truck
Large crash truck Airport
At the time that the parties entered into their 1998-99 collective bargaining
City owned and operated a Log Loader. Memorandum of Understanding #7 attached to the
collective bargaining agreement assigned the Log Loader to the Equipment Operator II
The Equipment Operator II wage rate was set forth in the wage scale provisions of the
The City purchased a Log Loader in 1999 and sold the old Log Loader. When the
learned of this purchase, the Union sought to have the newly purchased Log Loader assigned
Equipment Operator III classification. Equipment Operator III is a higher wage classification
Equipment Operator II.
The City and the Union negotiated on the issue of the appropriate placement of the
purchased Log Loader in Memorandum of Understanding #7. The City did not agree to
newly purchased Log Loader to the Equipment Operator III classification and advised the
Log Loader would remain in the Equipment Operator II classification.
On August 26, 1999, the Union filed a grievance challenging "the placement of the
Loader in the Equipment Operator II level." The grievance was denied at all steps and,
submitted to arbitration.
On January 6, 2000, the Union and the City signed their successor 2000-01 collective
bargaining agreement. On January 7, 2000, the Union and the City signed a Memorandum
Understanding #7 that assigned "Log Loader" to the Equipment Operator II classification.
POSITIONS OF THE PARTIES
The parties, by contract, have agreed to allocate certain pieces of equipment to
classifications. In addition, the parties have agreed that when the City acquires a new piece
equipment, upon its receipt, the City is required to notify the Union so that an appropriate
classification may be negotiated.
Prior to 1999, the City possessed and used a single function Log Loader. In 1999,
divested itself of this single function Log Loader and acquired a new piece of equipment,
among other things loaded logs. The new Log Loader differs substantially from the old Log
Operating the new Log Loader requires greater skill, effort and responsibility thereby
Equipment Operator III pay. Additionally, the internal comparable equipment
the inclusion of the new Log Loader in the Equipment Operator III classification.
The appropriate remedy is to include the new Log Loader in the Equipment
classification. Additionally, employes that have operated the new Log Loader should be
at the Equipment Operator III classification rate for all time operating the new Log Loader.
less, would be to award the City for failing to notify the Union of the acquisition of a new
and would be unfair to employes who have actually performed the required duties.
The weight of the evidence demonstrates that there are no significant differences
two machines that would justify the conclusion that the Log Loader purchased in 1999 is a
piece of equipment" under Article 10(H). Thus, the City is not required to negotiate its
in Memorandum of Understanding #7. The appropriate classification of Equipment Operator
negotiated and agreed upon by the parties when they adopted Memorandum of Understanding
If the new Log Loader were a "new piece of equipment," then the City, under
would be only required to negotiate the appropriate placement of the machine. The parties
to impasse. Following this impasse, the City exercised its managerial rights and placed the
Loader in the Equipment Operator II classification.
The City and the Union are not required to reach an agreement on the placement of a
piece of equipment." By asking the Arbitrator to place the new Log Loader in the
Operator III classification, the Union is asking the Arbitrator to go beyond the terms of the
and impose a new contract term upon the City. Thus, acceptance of the Union's position is
the powers granted to the Arbitrator under Article 2 of the parties' collective bargaining
Moreover, inasmuch as the contract does not provide any criteria for determining appropriate
classification, any decision of the Arbitrator would be speculative.
The City has fulfilled its obligations under the contract. The grievance is without
therefore, should be denied.
The parties' contractual grievance arbitration procedure provides the Arbitrator with
to interpret, apply and enforce the parties' collective bargaining agreement. In the present
Arbitrator has been asked to interpret, apply and enforce Memorandum of Understanding #7,
10, and the wage scale provisions contained in the parties' collective bargaining agreement.
The Union, contrary to the City, argues that the Log Loader purchased in 1999 is a
piece of equipment." By adopting Article 10(H), the parties have agreed upon the procedure
followed when the City purchases a "new piece of equipment." Specifically, Article 10(H)
the City to notify the Union of the purchase of a new piece of equipment "for the purpose of
negotiating the equipment's appropriate placement in one of the existing pay categories
Memorandum of Understanding #7. . . ."
Article 10(H) provides a procedure for "negotiating" the "appropriate placement" of a
piece of equipment. Article 10(H) does not require the City to accept the Union's
position. Nor does it require the City and the Union to reach any other agreement during
negotiations. Indeed, Article 10(H) does not provide any procedure for resolving an
Article 10(H) negotiations.
To accept the argument that a grievance arbitrator has jurisdiction to resolve an
Article 10(H) negotiations would be to add a procedure to the contract that was not
the parties. Article 2 of the parties' collective bargaining agreement expressly prohibits the
arbitrator from adding to, or subtracting from the terms of the agreement. Accordingly, the
undersigned does not have authority to determine the appropriate placement of a "new piece
equipment" in Memorandum of Understanding #7.
In its reply brief, the Union argues that "the parties specifically agreed at the onset
arbitration that this arbitrator would indeed act as an interest arbitrator if in fact that was
(See Stipulation of Assistant City Attorney Matt Fleming)." Notwithstanding the Union's
to the contrary, the undersigned is not aware of any stipulation that would render moot, or
the City's argument that the grievance arbitrator lacks contractual authority to place the
purchased Log Loader in the Equipment Operator III classification.
If Article 10(H) negotiations fail to produce an agreement as to the appropriate
a "new piece of equipment," then the Union has the right to negotiate appropriate placement
it bargains a successor agreement. At that time, either party has a statutory right to have
impasses resolved by an interest arbitrator.
In summary, it is undisputed that the City has negotiated with the Union on the issue
newly purchased Log Loader's appropriate placement in one of the existing pay categories
in Memorandum of Understanding #7. Assuming arguendo that the newly
purchased Log Loader
is a new piece of equipment within the meaning of Article 10(H), the City did not violate
when it failed to include the newly purchased Log Loader under the Equipment Operator III
1/ The undersigned need not, and does not,
address the issue of whether or not the new Log Loader
is "a new piece of equipment" within the meaning of Article 10(H). The issue of whether or
not the City
violated Article 10(H) by not notifying the Union of the purchase upon the "receipt" of the
Loader is outside the parameters of the parties' stipulated issue.
The parties' 1998-99 agreement and its successor 2000-01 agreement had an attached
Memorandum of Understanding #7. Under each of these agreements, the attached
Understanding #7 lists Log Loader under the Equipment Operator II classification. Given the
placement of Log Loader under the Equipment Operator II classification, the City did not
either the Memorandum of Understanding #7 or the wage scale provisions of the parties'
bargaining agreements when it failed to include the newly purchased Log Loader under the
Equipment Operator III classification.
Based upon the above and foregoing and the record as a whole, the undersigned
1. The City did not violate Article 10, Memorandum of Understanding #7, or the
provisions of the contract when it failed to include the new Log Loader under the Equipment
Operator III classification.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin this 14th day of June, 2000.
Coleen A. Burns, Arbitrator