BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL NO. 695
CITY OF STOUGHTON
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney William H. Ramsey, appearing on behalf of the Union.
Roethe, Krohn, Pope, McCarthy & Haas, LLP, by Attorney Michael R.
Haas, appearing on behalf of the City.
Teamsters Union Local No. 695, hereinafter referred to as the Union, and the City of
Stoughton, hereinafter referred to as the City, are parties to a collective bargaining
provides for the final and binding arbitration of disputes arising thereunder. The Union
request, with the concurrence of the City, that the Wisconsin Employment Relations
designate a member of its staff to act as an arbitrator to hear and decide a grievance over the
and application of the terms of the collective bargaining agreement. The undersigned was so
designated. Hearing was held in Stoughton, Wisconsin, on March 22, 2000. The
hearing was not
transcribed and the parties filed post-hearing briefs which were exchanged on May 12,
parties reserved the right to file reply briefs but neither party did and the record was closed
The parties stipulated to the following procedural facts:
Carles Fristed is employed by the City of Stoughton Street
Department as Mechanic/Machine
Operator. Mr. Fristed's hourly rate of pay for 1999 as established by the Collective
Agreement was $17.06 per hour, and his position was listed as Grade 8, red circled,
on the 1999
Public Works and Clerical Unit Salary Schedule.
Terry Gander, Richard Gullickson, John
Halverson, Paul Johnson and Roger Strandlie are
employed by the City of Stoughton Street Department as Machine Operators. The 1999
for each of said employees is established as $16.50 per hour and was listed as
Grade 7, red circled,
on the 1999 Public Works and Clerical Unit Salary Schedule.
On January 12, 1999, the Common
Council of the City of Stoughton approved new position
descriptions for the positions of Machine Operator and Mechanic/Machine Operator, which
previously proposed by the above-named employees.
Pursuant to the wage appeal process in the
Collective Bargaining Agreement, the above-named employees submitted grievances on
February 23, 1999, requesting a change in placement on
the City's Wage Matrix.
The City submitted the employee
grievances to David M. Griffith and Associates (DMG) for
a ruling based upon the City's classification and compensation study, which established wage
based upon internal and external factors. DMG evaluated the position descriptions and in a
dated March 23, 1999, recommended no grade change for the Machine Operator
position and also
recommended no grade change for the Mechanic/Machine Operator position unless new
was discovered during the completion of its pending Street Department Organization and
The above-named employees appealed the
DMG decision on April 15, 1999. The City of
Stoughton, the employees and the Union entered into an extension on May 7, 1999, to
allow for the
completion of the Street Department Study by DMG.
On September 7, 1999, the City of
Stoughton Personnel Committee voted to approve a
change in the Machine Operator wage from Grade 7 to Grade 12, and in the Machine
Operator/Mechanic position from Grade 8 to Grade 13, contingent upon DMG Maximus
at the City Council meeting on September 14, 1999.
On September 14, 1999, the
Stoughton Common Council considered the recommendation
of the Personnel Committee and also reviewed the results of
the Street Department Organization and Management Study.
Mr. Dan Hernadez of DMG-Maximus presented the findings of the study as well as
the basis of DMG's recommendations not to
increase the grade levels for the positions of Machine Operator and Mechanic/Machine
The Common Council entertained several motions regarding the wage grievances and
voted to not increase the grade placement for the above-named positions on the City's Wage
On September 15, 1999, the
above-named employees filed appeals of the Common Council's
decision pursuant to the Grievance and Arbitration Procedure in the Collective Bargaining
The underlying basis for these employes seeking reclassifications was that the City
on October 14, 1997, approved a new position description for the Apprentice Electric
Technician and reclassified the position from Grade 7 to Grade 12. DMG on
September 26, 1997,
sent a letter to the City's Clerk which stated, in part, as follows:
We have completed the evaluation for the position of Apprentice
Electric System Technician.
Based on an analysis of the duties and responsibilities, and subsequent application of the
Griffith/Archer Matrix Point Factor Evaluation method, we recommend the position be
Grade 7 of the Represented Employee Pay Plan. However, due to unique market conditions
field, we recommend you "market adjust" the position to Grade 12.
According to Bob Kardasz, it was his belief
that the hiring rate for the Electric System Technician
(market rated at Grade 14) would be insufficient to attract qualified journey-level technicians.
Therefore an operational decision was made to fill the position at an apprentice level.
Bob, he and Sean Grady predict that the hiring rate for Grade 12 will most likely be
unable to attract
linemen with significant training and/or experience, but should be able to attract persons with
electrical experience and/or training. If this is not the case, we would recommend further
between the City and DMG to provide potential solutions.
Without a mini-market study of
apprentice-level Electric System Technician positions, we can
not (sic) be sure that Grade 12 will offer a competitive range for the type of individuals the
seeking, but we believe it is an appropriate starting point. It is also an internally equitable
contrast to the heavier responsibilities of the journey-level Electric System Technician
placed at Grade 14. The Utility expects it will take 2-4 years of
apprenticeship, depending on
the new employee's background and success in the new job, before the apprentice will be
The parties stipulated to the following:
Did the City of Stoughton violate the collective bargaining
agreement in the processing of and
the decision not to raise the pay grades of the Machine Operator and the Mechanic/Machine
If so, what is the appropriate remedy?
WAGES, GUARANTEES AND APPEALS
Wages: Pages 17 29
incumbent employee currently red-circled or currently holding a position
which may become red-circled through implementation of the classification
and compensation study,
will be grandfathered out of the matrix for the purpose of wage increases for the remainder
employment with the City of Stoughton. In accordance with such grandfathered standing, all
employees in red-circled positions shall receive the same across the board wage increases as
bargaining unit employees in the future.
Any employee in any classification whose job duties or responsibilities are
significantly changed may appeal his or her placement on the matrix or red-circled status by
appeal with the City. All appeals shall be processed pursuant to the following steps:
A. An appeal
received by the City within thirty (30) days of a significant change in duties or
responsibilities, shall be submitted by the City to David M. Griffith & Associates
(DMG) for a ruling
within thirty (30) days.
B. If the employee disagrees with the
ruling received in Step A, he or she may within thirty (30)
days of such notification appeal DMG's ruling to the City's Personnel Committee. The
Committee shall rule within thirty (30) days of receipt of appeal.
C. If the
employee disagrees with the ruling received in Step B, he or she may within thirty
days of such notification appeal the Personnel Committee's ruling to City Council. The City
shall rule within thirty (30) days of receipt of appeal.
D. If the
employee disagrees with the ruling received in Step C, he or she may within thirty (30)
days of such notification appeal the City Council's ruling to the Grievance and Arbitration
set forth in Article 6 beginning at Section 1(b) of the Labor Agreement between
E. Any thirty
(30) day time limit described above may be extended by mutual agreement of the
The Union contends that the City violated the collective bargaining agreement when it
to keep the grievants' wages competitive with the comparable market. It asserts that
with the 1995 agreement, the Union gave up its right to maintain competitive wages through
voluntary interest arbitration in exchange for the City's commitment to use DMG Maximus'
service" to conduct a market re-survey of represented positions every 3-4 years. It submits
years later, no new market survey has been conducted and the grievants' pay has fallen
counterparts in comparable communities. It notes that the grievants' annual pay increase
for inflation but not for the greater demand for competent, educated and trained public works
employes. It asserts that the City is in a "growth mode" and the 1995 comparables may not
applicable. It insists that the City's continued failure to honor its end of the bargain should
remedied by sustaining the grievances and granting the grade changes.
The Union claims that the City failed to obtain justification from DMG for its
treatment of the grievants vis-a-vis the Apprentice Lineman. It asserts that
DMG addressed the
inequity before the City Council but did not justify it. It claims that the City did not ask
were considered in raising the Apprentice Lineman's pay grade and did not ask or inquire
reasons DMG ignored its own market survey upon which the classification compensation
based. It notes that the grievants were not afforded the opportunity to present their
arguments to the
City Council and the City based its justification on the revised position descriptions
internally equitable under DMG's formula. The
Union does not deny that the position descriptions remain internally equitable but the
City failed to
keep its commitment to maintain wages that are competitive in the market place, thereby
It cites Portage County, Case 117, No. 51883, MA-8768 (McLaughlin), 1996) as
for its position. It submits that where duties performed by two individuals are the same, then
reclassification cannot be denied. It states that the grievants perform duties that justify the
grade as the Apprentice Lineman. It also claims that in both cases inaccurate and
information was presented by third parties and had the City Council heard the justification
the reclassifications, it would have granted them.
The Union argues that the City has created a practice of making equitable market
to classifications based on the affected employes' supervisor's opinion. It submits that the
market survey was ignored by DMG and the decision to raise the Apprentice Lineman was
the observations and recommendation of the Apprentice Lineman's supervisor. It asserts that
supervisor and DMG determined the grade change was necessary to attract and retain quality
employes and thus the City established a practice of making equitable adjustments to account
market conditions. The Union observes that a one-time occurrence can be construed as a
practice and can be used to fill in the contract's gaps and to determine what constitutes fair
equitable treatment of all employes. It contends that the City forgot its obligation to keep the
survey updated. It observes that if the City is held to abide by its practice of making grade
adjustments based on the recommendation of supervisors, it is clear the grievants deserve the
they requested. It claims that the grievants' supervisor believes that his employes are
the work they do, and based on the supervisor's testimony, the grievants deserve the grades
In the alternative, the Union asks that the City be ordered to conduct a revised
because it failed to maintain the classification and compensation system it is required to
under the agreement. It insists that the City is using an outdated and irrelevant market
determine whether the grievants are adequately compensated. It further claims that the City
give the grievances the consideration required under the contract. It requests that the
sustained and the grievants made whole.
The City contends that the Union's attempt to force an external market review should
rejected for several reasons. It observes that it is not mandated by the contract, DMG does
routinely conduct a new external market comparison unless there is a specific request or
do so and there was no evidence of significant market factors which would have triggered a
external market study. It submits that DMG had concluded that unique labor market
existed in the Utilities Department based on unique considerations in the utilities labor
the recognition of specialized skills and a large investment in
training. It refers to DMG's conclusion that similar considerations did not weigh as
heavily in the
Street Department positions. It notes that in the judgment of DMG, the new duties of the
Operator position did not affect the ratings previously given to that position. The position of
Mechanic/Machine Operator, according to the City, might have changed pending a
study, but after completion of that study, the initial determination of DMG did not change.
The City recognizes that the opinion of the supervisor was that these positions were
compensated at a lower rate than comparable positions in other municipalities and there was
decrease in applicants for a vacant position in 1999 than in 1990. The City observes that
been only two vacancies since 1990, and other municipalities were experiencing similar
in recruiting, so logic would dictate that the disparity in wages did not create the shortfall in
applicants but was due to the economy which is stronger than it was ten years ago as well as
In conclusion, the City argues that the evidence failed to show that the City violated
agreement or acted in an arbitrary manner in denying the grievances. It asserts that through
employment of DMG it attempts to maintain a consistent pay grade scale for all employes
objectivity and position responsibilities, and which attempts to minimize historical inequities
pay scale. The City provides a mechanism for employes to seek a change in the grade
the procedure does not guarantee a change in pay grade. It submits that the City had a
and rational basis for its decisions, distinguishing the Street Department employes from the
Department employes and exercised its authority properly. It asks that the grievances be
Appendix A of the parties' agreement provides that any employe whose job duties or
responsibilities are significantly changed may appeal his placement in the wage matrix. After
appeal is received, it is submitted to DMG for a ruling which may be appealed to the City's
Committee, then to the City Council and finally to arbitration. Here, the grievants have
DMG's ruling that the Machine Operator should remain at Grade 7 and the
Operator should remain at Grade 8. The grievants' contend that the positions should be at
and 13, respectively. The underlying basis for the grievant's appeal involves the placement
12 of the Apprentice Electric System Technician.
The collective bargaining agreement does not establish what standard the Arbitrator
apply to the ruling of DMG. Inasmuch as the contract is silent on the standard, the
apply the reasonableness standard and if DMG's ruling is not arbitrary and capricious, the
A review of the evidence indicates that as far as the point factor evaluation system is
concerned, the Apprentice Electric System Technician should be placed at Grade 7 (Ex. 12)
is the same grade as the Machine Operator. In 1997, the position of Apprentice Electric
Technician was placed at Grade 12 due to "unique market conditions." (Ex. 12) The
that the City should have updated the market survey before denying the grievants'
In DMG's final report to the City dated January 6, 1995, on the Classification
Compensation study, the report states at page 15:
After a thorough analysis of the market practices as they relate to
Utilities positions, it is our
conclusion that Utilities positions appear to have a somewhat unique labor market, with
notably higher than positions in other City departments of similar job worth (as measured by
evaluation scores). This finding generally held across all the cites included in the market
This finding was true also in the Non-Represented Employee Classification and
which led to the market rating of two key Utilities positions because of the unique nature of
Utilities labor market and resulting pay rates.
. . .
Estimate Grade Assignment
Electric System Technician
With this market adjustment, the Electric
System Technician will be adjusted five grades again
due only to unique market conditions.
There is no evidence the Union objected to the five-grade change or that Street
should have gotten the same five-grade change in 1995. It does not appear that there was an
Apprentice Electric System Technician employed by the City in 1995 as this classification is
in the study. See page 15, Appendix A.3, D.1, C.1, I.1.2 and Ex. 12. It is noted
that the Apprentice
Electric System Technician was adjusted five grades to Grade 12 due to the same unique
for which the Electric System Technician was adjusted five grades from Grade 9 to Grade
12) All of this occurred within three years of the 1995 market survey.
The Union's assertion of a past practice of accepting the recommendation of the
as a basis for reclassification carries little weight given that the same rationale for
the grade change for the Technician used in the initial study was applied to the
Apprentice and the
same change in number of grades was also applied to the Apprentice, all within three years
survey. The recommendation of the supervisor is little more than asserting the report be
the same fashion to the Apprentice as it was to the Electric System Technician and, as it is
part of a
progression, i.e. Apprentice to Journeyman Technician, the supervisor's recommendation
said to establish any binding past practice.
DMG did review the new position descriptions in 1999 and by letter of
February 23, 1999,
recommended no grade change for the Machine Operator class (Ex. 5). After the
of the Street Department on August 30, 1999, the Mechanic/Machine Operator class
to be properly graded at Grade 8.
No evidence was presented of unique market conditions for Street Department
would require the same grade level adjustments as Utility employes. While the grievants'
felt market conditions warrant a reclass, DMG was of the opinion that there were no unique
conditions applicable to the grievants or that any change in market conditions apply to
reclass. DMG has not been shown to have acted unreasonably and has provided a logical
for the grade differential between the Apprentice Electric System Technician and the Street
Department employes seeking to be reclassified. The evidence failed to establish a change in
conditions justifying the requested grade changes. Thus, it is concluded that the ruling of
reasonable and was not arbitrary and capricious.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned makes the following
The City of Stoughton did not violate the collective bargaining agreement in the
of and the decision not to raise the pay grades of the Machine Operator and the
Operator, and therefore, the grievances are denied.
Dated at Madison, Wisconsin, this 15th day of June, 2000.
Lionel L. Crowley, Arbitrator