BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute
LOCAL 1260, PAPERWORKERS, ATOMIC
CHEMICAL EMPLOYEES INTERNATIONAL UNION
Mr. Timothy G. Costello, and Mr. Gene
Linkmeyer, Attorneys at Law, Krukowski and Costello,
S.C., 7111 West
Edgerton Avenue, Milwaukee, Wisconsin 53220, appeared on behalf
of the Company.
Mr. John A. Peeters, International
Allied-Industrial, and Energy Workers International Union,
AFL-CIO, 2023 East Mohawk
Drive, P.O. Box 381, Tomahawk, Wisconsin 54487-0381, appeared on
behalf of the Union.
On June 30, 1999, the Wausau-Mosinee Paper Corporation and
Local 1260 of the
Allied-Industrial, Chemical and Energy Workers International
Union (PACE) requested that
Wisconsin Employment Relations Commission appoint William C.
Houlihan, a member of its
to hear and decide a grievance pending between the parties.
Hearing on the matter was
on September 22, 1999, in Wausau, Wisconsin. Post-hearing briefs
were submitted and
by October 25, 1999.
This Award addresses the right of maintenance employes to
hold spare jobs.
BACKGROUND AND FACTS
This grievance arbitration arises out of grievances filed by
Reuben Schaper and Dan
each of whom are maintenance men with the Company who applied for
and secured spare
outside their department. Neither man was allowed to hold their
spare job while continuing
maintenance employe, and so dropped their spare jobs under
protest, and filed these
At its Brokaw, Wisconsin plant, the Company manufactures
paper for printing and
It maintains a large physical plant which employs 575 hourly
employes and 130 salaried.
employes are represented by two locals of PACE. Local 1260
represents the maintenance,
room and pulp operation. The larger local, 1381, represents
employes in the manufacturing
finishing unit. Both locals are covered by the terms of a single
times, employes may bid for the same jobs. This grievance is
brought by Local 1260 on
Maintenance employes are a highly-paid, high-skills group.
There are 63
mechanics. Additionally, there are 25 Electrical and
Instrumentation Technicians in the
department. All but four employes from each of these
classifications works on the first shift.
employes work a 40-hour workweek and every third Saturday or
Sunday, averaging 45.3
week. On an average day, there are 10 maintenance employes who
are not on the job due to
vacation, sick leave or other absences.
Maintenance employes are scheduled in their own areas on
Mondays and Fridays.
Wednesdays and Thursdays are days in which substantial
preventative maintenance is
a typical Tuesday, one paper machine is shut down. 40
maintenance employes and additional
electrical technicians are assigned to service the machine. If
the machine is not back online
quitting time, the employes work overtime, which occurs more than
half the time. There is
production work while the machine is down. On Wednesdays, 30
mechanical and additional
employes perform a similar function on finishing equipment. On
Thursdays, 35 mechanical
perform similar tasks on pulp mill recovery and wood room
Entry into the maintenance classification is through an
limited number of slots, filled by a combination of seniority and
test scores. The program
both on-the-job training and formal classroom instruction. The
apprenticeship is both
time-consuming, and requires six years to achieve journeyman
There are three kinds of jobs in the plant. A permanent
position, is one whose
regularly scheduled to perform certain assigned work tasks. The
occupant has rights to the
the right to bid for another job. A spare position is one whose
occupant, a permanent
used to fill in for an employe who is absent, on vacation, sick,
etc. There are approximately
jobs in the plant. Some jobs have multiple spares, some jobs
have none. The relief pool
a group of employes (typically new hires) who are trained to do a
variety of jobs. Those
have no permanent assignment and work where they are needed.
Spare jobs are regulated by certain provisions found within
Section 12 of the labor
and set forth below. An employe who bids on a spare job is
subject to a 30-day trial period.
Successful completion allows the employe to have the spare job,
along with his or her
The entitlement is essentially to access of hours which open up
due to vacation, sick leave,
ultimately to be positioned to fill the "spare job", if and when
that job becomes permanently
(See Sec. 12, "Scheduling of Spare Jobs", paragraph 3, below.)
The Company has historically refused to allow maintenance
employes to hold spare
outside their department. The Company views the maintenance
employes as critical to the
of the plant and does not want those employes leaving maintenance
work to perform other
Maintenance employes are free to bid for spare jobs. Following
the 30-day trial period, the
maintenance employe is required to choose to retain either his
position or the
spare job successfully bid upon, but not both. That is precisely
the fate of the grievants in
proceeding, each of whom abandoned their spare jobs, under
protest. If a spare job arises
circumstances where the spare position will not be vacated
imminently, which is common, a
maintenance employe is, as a practical matter, precluded from
holding his current job and
The consequence of this is that maintenance employes lose the
opportunity to position
to fill vacancies when those vacancies arise. The Company will
allow maintenance employes
spare jobs within the same department. What this amounts to is
performing the same work
The Company's treatment of maintenance employes mirrors its
treatment of electrical
technicians, for purposes of holding spare jobs. Employes in a
job progression series are
contractually regulated relative to their holding spare jobs. A
job progression series is a job
where one job prepares an individual for the next in a
progression. Such employes are
treat the next job in their progression as their job spare. If a
vacancy arises, the individual
up, or out of the progression series. Job progression series
employes are not permitted to
jobs other than the next step in their progression. Subject to
these exceptions, permanent
are eligible to hold spare jobs, for which they are qualified.
The Company has never allowed maintenance mechanics to hold
spare jobs. The
arose as an issue in 1981. At that time, Terry Locaman, an
electrical apprentice, got a spare
the boiler house. The Employer opposed his holding the spare
job, and negotiations with the
ensued. The following sentence, which continues to date, was
inserted in the apprenticeship
agreement: "Apprentices will only be able to hold spare jobs
within the maintenance
There is no parallel language applicable to journeymen.
In 1981, Herman Gast sought to hold a spare job outside
to allow Gast to do so and a grievance was filed. That grievance
was denied by the
addressed to the Union president, Cliff Woller:
"The issue of maintenance people holding spare
jobs outside of
maintenance is one of a very
serious nature. During the summer, when people would be going on
to their spare jobs
vacations, we also have a heavy vacation schedule. By allowing
maintenance people to hold
jobs outside of maintenance, we would be putting an even greater
burden on everyone else in
maintenance. Plus, from a business perspective, it is not wise
to spend years developing an
crafts person and then lose that person to a position where
anything less than one hundred
of his or her talents would be utilized. Therefore, with great
respect for Herman, I must
request to be allowed on a spare job."
A Company witness testified that the grievance was then
withdrawn. A Union witness
the Gast matter involved Mr. Gast wanting off the call-in list.
Later in 1981, Charles Jansen sought a spare job. Jansen
was denied that opportunity
filed a grievance. Charles St. Pierre, Company Director of
Industrial Relations, wrote Mr.
Hudzinski, the Union's International Representative, as follows:
Subsequent to the initial fourth-step grievance
answer on October
8, 1981, the Company met
with Local 1260 on two separate occasions to discuss the problem
of maintenance employes
spare jobs outside maintenance.
During these meetings, we explained to the Union
many serious problems the
Company would face if we were to allow this to occur. The Union
committee, at our
brought up an additional point that occasionally there is a
maintenance employe who desires
out of maintenance for physical problems, or simply because that
employe no longer wishes
in the maintenance department.
We agree that there will be occasions
this will occur, and to settle this grievance, the
Company would be willing to allow a journeyman maintenance
employe to bid onto a spare
his/her seniority dictates; however, to avoid the shuffling back
and forth in and out of the
department, the Company would only allow the employe to move into
the job he posted for,
this job becomes a permanent one. As is customary, the employe
will have the normal
period in his new job with return rights to his former position.
We feel, Mike, that the
result of this
would be that the Company would still be able to maintain its
maintenance work force and at
same time allow a maintenance employe to exercise his right to
bid out of the Department if
feels maintenance work is no longer an acceptable trade for them,
for physical, emotional or
The proposed compromise was not agreed upon, and the grievance
The matter came up in the parties' 1991 contract
negotiations. The Company
transcript of a portion of that discussion, occurring on April
10, 1991 which provides as
. . .
Union: Can journeymen maintenance hold
Company: No. That was resolved in
grievance a long time ago.
. . .
The matter arose again in December of 1994. At that time,
employe Ken Gorski
grievance, which alleged the following:
Violation of labor agreement . . .spare jobs. The
maintains that maintenance workers
cannot hold spare jobs. . .Follow contract and allow journeymen
to hold spare jobs.
The Company responded as follows:
The attached grievance filed by Ken Gorski is
being returned to
you. As you know, we have
decided not to fill this second spare job in the storeroom
because it is not needed.
The grievance is moot, and therefore
specific incident is not grievable.
This matter came up once again in the parties' 1996
negotiations. The Union raised
matter through the following proposal:
. . .
20. Section 12, page 19, clarify all spare
. . .
According to a Union witness, the Union sought clarification
on this matter, which
discussion. The Employer took the position that through past
practice maintenance employes
not hold spare jobs. The Union believed there was nothing in
writing to this effect, nor
the contract leading to this result. It was the Union's view
that access to spare jobs was
all production employes. A Company witness testified that this
proposal was discussed. The
Company's view is that it refused to allow maintenance employes
to hold spare jobs; that
was rejected, and dropped.
The Union believes the issue to be:
Did the Company violate the labor agreement, and
if so, what is
the appropriate remedy?
The Company believes the issue to be:
Does the language concerning spare jobs in Section
12 of the
collective bargaining agreement
prohibit the Employer from requiring that grievants Reuben
Schaper and Dan Koehler, to
their thirty (30) day trial periods whether they wish to stay in
their bid-on spare jobs outside
maintenance area and give up their maintenance job, or to return
to their maintenance job?
what is the appropriate remedy?
I regard the issue as:
Does the Company violate the collective bargaining
refusing to allow maintenance
employes to hold spare jobs outside their Department, beyond the
30-day trial period?
RELEVANT PROVISIONS OF THE
. . .
RELIEF POOL: The Company may maintain
a relief pool for use in providing relief for
temporary vacancies in departments throughout the Mill and for
stabilizing crews as opposed
reducing normal manning levels. Employees of the pool shall be
classified as plant laborers.
objective of the relief pool is to fill such vacancies at
straight time if possible, however,
with spare job rights will be scheduled for vacancies of one week
or more prior to utilizing
personnel. "Vacancies" as used herein means any vacancy caused
. . .
3. Temporary increases
in departmental workloads or extra work of a temporary nature.
. . .
DEPARTMENTAL, UNION AND PLANT-WIDE
SENIORITY POSTING AND
SELECTION: Whenever a vacancy arises or a new position is
created, it shall be
posted within five
(5) days of the opening on the bulletin boards unless the vacancy
is temporary in nature.
. . .
Selection of applicants for all posted vacancies
and new positions
will be based on seniority with
ability and qualifications. Department seniority will govern in
the department posting, and
seniority in the plant-wide posting.
. . .
SENIORITY UPON RETURN FROM TRANSFER OR
PROMOTION: An employee who
is transferred or promoted within the bargaining units shall be
given a trial period of thirty
working days for determination as to whether or not they can meet
the job requirements. . .
this trial period, the
employee may at their request, upon
the supervisor notice prior to the posting of the next
week's schedule, return to their old job without loss of
. . .
SPARE JOBS: An employee may normally
only one spare job. However, that employee
may temporarily hold claim to two (2) spare jobs for a thirty
(30) actual working day period,
which time the employee must decide which spare job to keep. An
relinquishes a spare job will not be allowed to reapply for that
spare job for a period of one
following the time that he relinquishes it. . .
FINISHING: To minimize the substantial problems involved in
and training, and to help ensure more efficient use of manpower
in the Finishing area, the
guidelines are adopted:
Most spare jobs in the Finishing area will
eliminated, with the exception of jobs
that require substantial training, like Trimmer Operator, Cutter
Embosser Operator, and Head Sealing Machine Operator. All spare
jobs, other than those
above, held prior to June 1, 1978, will be honored by seniority
until the job termination form
or the job becomes permanent.
SCHEDULING OF SPARE
1. Employees with spare jobs will
to work on those spare jobs, irrespective
of shift, for periods of one week or more for replacement of
2. The Company has
the right to assign employees with spare jobs to those spare jobs
on shift. If the Company determines that it is unnecessary to
move a spare to fill a
vacancy of less than one week duration, employees with spare job
rights will still have
the option to move their spare jobs on shift.
3. The employee
holding a spare job will take the first permanent job opening in
If there is more than one employee holding spare job rights to a
single job, they will
move into the job in order of job seniority.
PAPER MACHINE JOB PROGRESSION:
and Management agree that it is
extremely important to recognize the necessity of upgrading new
papermakers. It is
that present crew members exhaust every possibility to qualify
for promotions within the
room crew when open, or seriously consider transferring to posted
openings which better
. . .
Grievances and Arbitration
. . .
STEP 4 ARBITRATION:
. . .It is understood that the function of the arbitrator
shall be to
interpret and apply this
Agreement. However, the arbitrator shall have no power to
arbitrate general wage
add to or subtract from, or to modify and extend any of the terms
of this Agreement, or any
Agreement made supplementary hereto, except by mutual consent of
the Company and the
Further interpretation of this Agreement may be made by mutual
consent of the parties
. . .
POSITIONS OF THE
The Union contends that the Maintenance Journeyman position
is the only
employes who bid on a spare hand position are forced to
relinquish their right to their
position. No other job classification is forced out of the
permanent position as a result of
holding spare hand positions. The Union acknowledges the
Company's argument that it has
six years of training in these Maintenance Journeymen. However,
most top job
classifications in lines
of progression take years of experience and training and company
investment. The company
rely upon these employes to produce a quality product safely.
The Maintenance Journeyman
classification is no more important than are other
classifications in the plant.
The Union contends that there is a severe economic loss to
the employe who is forced
his permanent classification. A Maintenance Journeyman forced
out of his classification and
spare crew position would be subject to a pay loss of as much as
$5.00 per hour.
The Union contends that the clear language of the contract
must be applied. All
are entitled to hold spare jobs. The Union points to Section 12
Spare Jobs, and
argues that the
clause contains no exemptions. No employe in any job
classification is exempt from being
to hold one spare job. The only employe that cannot hold a spare
job is the Journeyman
This is so due to the provision in the apprenticeship agreement
which contains this explicit
It is the Union's view that the task of the arbitrator is to
interpret and apply the
pursuant to Section 20 Step 4 of the parties' grievance
procedure. The Union
nothing in the record indicates that the Union has agreed to
exclude Maintenance Journeymen
the contractual right to hold a spare job. These are the first
grievances ever pursued to
The grievance answers involving Gast and Jansen should not be
used as evidence that the
somehow waived bargaining members' rights contained in the
agreement. Nothing in the
suggests that the Union has agreed to the answers provided by the
company in those two
The collective bargaining agreement permits changes in the
language of the
through the collective bargaining process or by mutual consent.
There was no collective
contends the Union. Furthermore, there is no indication that the
Union has ever consented to
the company to exempt Journeyman Maintenance employes from
holding spare jobs.
The Company contends that the grievances should be denied
because the Union has
carried its burden of proof to establish the violation of a
specific contract provision. The
argues that the contract does not specifically prohibit it from
requiring journey level
employes to give up their regular positions, should they take on
a spare job. The Company
that where the Union alleges a contract violation, it bears the
burden of establishing a
violation of a
specific provision of the Agreement. That cannot be done in this
instance, argues the
because the contract does not contain any language prohibiting
the complained-of conduct.
any such prohibition, the employer is left with discretion, based
on good business judgment,
the operations and direct the workforce.
The Company contends that its Management Reserved rights
allow it the authority to
determine detailed operational matters such as where and when
maintenance employes can
spare job outside their department. Nothing in this record
suggests that the Company has
specific right to determine the detailed procedural questions of
where, when, and if
at all employes may hold spare jobs. The Company goes on to
note that the contract
does not define
"spare job", nor does the contract grant employes the right to
determine the procedure for
spare jobs. Employes "may" however, hold one. Nowhere does the
contract require the
to provide spare jobs. It is the Company's claim that all of
these matters fall within the
sweep of its
residual management's rights.
The Company contends that these grievances fail because they
seek to overturn 20
joint practice. The Company cites authority for the premise that
a past practice will bind the
as if it were a fixed and written contractual obligation, where
the activity is (1): joint; (2),
unequivocal; (3) clearly enunciated and acted upon; and (4)
readily ascertainable over a
period of time. The Company argues that a past practice analysis
is appropriate because the
jobs language does not address the practice that has prompted
Company contends that the spare jobs language is ambiguous in at
least one respect, the use
word "normally". The Company points to the Locaman
apprenticeship, the Gast and Jansen
grievances, the 1991 and 1996 negotiations, and the answer to the
Gorski grievance. Taken
it is the view of the Company that these incidents satisfy the
criteria for the establishment of
Finally, the Company contends that the existence of an
explicit provision in the
agreement prohibiting apprentices from holding spare job
positions should not be construed
fashion to imply a contrary view relative to journeymen
maintenance employes. The
agreement was modified following the Locaman incident, and to
provide notice to those
the apprenticeship program. In the view of the Company, no
implication to the contrary as
journeymen maintenance mechanics, is reasonable in light of the
parties' actions, or
The contract provision key to the resolution of this dispute
is Article 12 - Spare Jobs.
that provision to be ambiguous relative to this dispute. The key
sentence provides: "An
may normally hold only one spare job. . ." The use of the term
"normally" permits a
the norm. Arguably, that norm would be the holding of one spare
job. However, the
silent as to how, when or why such a deviation would be brought
about. More to the point,
sentence does not declare that an (or any particular) employe is
entitled to hold a spare job.
sentence, and the paragraph, do not set forth criteria (i.e.
seniority) by which employes hold
jobs. This contrasts with the job posting for vacancies or new
positions language which is
explicit in how such positions are to be filled. Read literally,
the sentence appears to provide
employe who has a spare job may only have one.
The Union is accurate that the sentence draws no distinction
maintenance mechanics and all others. However, entitlement to a
spare job is not addressed.
fact is that 100 spare jobs exist in a bargaining unit which
exceeds 500 employes. Not all
are entitled to a spare job.
In this context, it is appropriate to turn to the parties'
practice in order to see how
parties have construed these words. I agree with the Company,
that in order to be binding, a
must be joint, unequivocal, clearly enunciated and acted upon,
and readily ascertainable over
reasonable period of time. This standard is long-standing,
commonly applied, and
I believe that the Company has established that a practice
does exist. The Locaman,
and Jansen matters arose wherein bargaining unit members sought
spare job positions. The
refused to permit that. The Union did not pursue the right of
any of these employes to hold
jobs. It is noteworthy that an offer of compromise was rejected.
This left the parties with a
disagreement as to whether or not journeymen maintenance
mechanics could hold spare jobs.
Company thereafter continued to refuse to allow journeyman
maintenance mechanics to do
so. It is
in that context that the matter came up in the 1991 and the 1996
contract negotiations. The
exchanges in those negotiations erased whatever ambiguity might
possibly have lingered.
I believe the practice was joint. The Union and the Company
participated in the
procedure and in the contract talks that created and reinforced
the existing practice. I believe
practice was unequivocal. There is nothing in the record to
suggest that a journeyman
mechanic has ever been allowed to hold an out-of-department spare
job, beyond the 30-day
period, and thereafter remain in a maintenance mechanic position.
I regard the practice as
enunciated and acted upon. There has been no ambiguity in the
Company's refusal to permit
journeymen maintenance mechanics to hold spare jobs. The
grievance answers are in
addressed to the union, and not only articulate the Company's
refusal, but the grounds for
refusal. This practice has spanned at least the period 1981
through the date of the hearing,
decades. The practice has survived numerous negotiations, and
turnover on the part of both
Company and Union representatives. In summary, the criteria for
the establishment of a past
have been satisfied.
The Union argues that no other group of employes are
affected. Most employes are
regulated. However, the Company has offered a rational basis for
mechanics undergo a long and expensive apprenticeship program.
The record establishes that
are critical to the operation of the facility. Most importantly,
the Company's decision in this
offends no provision of the collective bargaining agreement.
The Union notes that employes suffer significant potential
economic loss, if forced
relief pool as a consequence of taking a spare job. This is
true, however, it is a byproduct
promotional system that promotes a senior spare employe. An
employe who leaves a
maintenance mechanic position in order to secure a desired spare
position does so knowingly.
economic consequence of that decision is a result of the
provisions of the collective
The Union argues that the clear language of the collective
employes to hold spare jobs. I disagree. As noted above, I do
not read the language to
that result. Similarly, the Union argues that the incidents
constituting a practice should not
considered. In light of my view that the contract provision is
ambiguous, this argument is
Finally, the Union contends that the past contract
provisions, under which these
arose and were disposed of, is not in the record. There is no
indication that the language
is different from that under consideration in this proceeding.
The grievance is denied.
Dated at Madison, Wisconsin this 16th day of June,