BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FOND DU LAC CITY EMPLOYEES UNION,
LOCAL 1366, AFSCME, AFL-CIO
CITY OF FOND DU LAC
Mr. Lee W. Gierke, StaffRepresentative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box
2236, Fond du Lac, Wisconsin 54936-2236, appearing on behalf of Fond du Lac City
Union, Local 1366, AFSCME, AFL-CIO.
Davis & Kuelthau, S.C. by Attorney William G. Bracken,
Employment Relations Services
Coordinator, P.O. Box 1278, Oshkosh, Wisconsin 54903-1278, appearing on behalf of the
Fond du Lac.
Pursuant to the provisions of the collective bargaining agreement between the parties,
du Lac City Employees, Local 1366, AFSCME, AFL-CIO (hereinafter referred to as the
the City of Fond du Lac (hereinafter referred to as the Employer or the City) requested that
Wisconsin Employment Relations Commission designate a member of its staff to serve as
of a dispute concerning the County's decision not to pay out of class pay to Pam Osgood.
undersigned was so designated. A hearing was held on March 21, 2000, in Fond du Lac,
at which time the parties were afforded full opportunity to present such testimony, exhibits,
evidence and arguments as were relevant to the dispute. The parties submitted post-hearing
which were exchanged on May 4, 2000, whereupon the record was closed.
Now, having considered the testimony, exhibits, other evidence, contract language,
of the parties and the record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The issues before the arbitrator are:
1. Did the City of Fond du Lac
violate Article IX Differential Pay and the
Memorandum of Understanding dated October 23, 1995, when it denied "Out of Class" pay
grievant, Pam Osgood on May 13, 1999?
2. If so, what is the appropriate
. . .
PROBATIONARY PERIOD EMPLOYMENT
. . .
Section 2 A permanent employee is hereby
defined as a person hired to fill either a permanent
full-time or permanent part-time position. A temporary/ seasonal employee is one who is
a specific time or for a specific project (not to exceed 4 months) except in the Parks Division
other divisions or projects when specifically agreed to by the Union and the City) where
temporary/seasonal positions of up to eight (8) months duration will be permitted between
and December 1. A temporary/seasonal employee will be separated from the payroll at the
such of period or project. The intent of this section is to permit the use of
employees during periods of increased work, but temporary/seasonal employees, after
their employment, will not be replaced until the next season or project. The City shall
Union of the status at the time of hire of all temporary/seasonal employees and shall indicate
Union when such employees have been removed from the payroll. Temporary/seasonal
employees, of less than six (6) months duration, are not subject to
the terms and conditions of
this Agreement; however, temporary/seasonal employees will not be utilized to displace
employees but rather to augment the work forces. Seasonal/temporary employees of six (6)
duration in the Parks Division shall be given first preference for re-hire for the following
. . .
. . .
Section 2 - Work Out of Class - Whenever an
employee works at a higher rated job for three (3)
consecutive hours or more, he shall receive the higher rate of pay for those hours worked in
higher rated job. Such higher base rate will be the wage step in the wage scale for the
job which is commensurate with his years of service with the City.
. . .
Except as otherwise specifically provided herein, the Management
of the City of Fond du Lac
and the direction of the work force, including but not limited to the right to hire, to
discharge for proper cause, to decide initial job qualifications, to lay off for lack of work or
to abolish positions, to make reasonable rules and regulations governing conduct and safety,
determine schedules of work, to subcontract work, (no employee shall be laid off due to
provisions) together with the right to determine the methods, processes and manner of
work, are vested exclusively in Management.
. . .
1999 Wage Rates Effective
January 1 December 31,
1999 Hire . . . 30 Mos.
. . .
Park Caretaker I $12.20
. . .
. . .
Year 1 Year 2 Year 3
January 1 December 31,
1999 $ 6.72 $ 6.99 $ 7.29
The Employer provides general governmental services to the people of Fond du Lac,
Wisconsin. Among these services is the operation of a Parks Division. The Union is the
bargaining representative of the City's non-exempt employes, including those in the Parks
Prior to 1995, the bargaining unit did not include any Long Term Seasonal employes (LTS).
year, the parties agreed to allow the use of LTS's for up to four months, except in the Parks
where LTS's could be used for up to eight months between April 1 and December 1. The
agreed that LTS's would be used to augment, rather than displace, the permanent work
Certain questions remained after the negotiation of the contract language permitting the use
and in October of 1995, the parties negotiated a Memorandum of Understanding addressing
payment of out of class pay to LTS's. The Memorandum, which was retroactive, read:
This Memorandum of Understanding between the City of Fond du
Lac and Fond du Lac
Employees Union Local 1366 is to be effective April 1, 1995.
The City and the Union agree that
additional clarification is needed regarding "Out of Class" pay
for seasonal employees in the Parks Division of six (6) months or more duration. Seasonal
in the Parks Division of six (6) months or more duration shall receive out of class pay as
1. The above employees shall
receive the Laborer I rate when performing duties of operatinga
riding mower of five (5) to seven (7) feet in width or operating a sweeper.
2. The above employees shall
receive the Caretaker I rate when performing duties of operating
a riding mower of eight (8) to nine (9) feet in width;
when operating a tractor;when
a boom lift or operating a truck requiring a
Commercial Drivers License.
3. The above employees shall
receive the Equipment Operator I rate when performing duties of
operating a riding mower of ten (10) feet or more in width.
4. The above employees shall
receive out of class pay when performing the duties required of
any permanent bargaining unit position when assigned to perform the duties of
in the absence of a permanent employee in accordance with the Labor Agreement.
For purposes of placement of these
employees in the appropriate salary step as outlined in the
labor agreement, all continuous time worked as a seasonal employee shall be used to
proper step placement on the salary schedule and the appropriate out of class rate.
As of the time of this grievance, the City had eight LTS's in the Parks Division,
Pamela Osgood. Bev Kindschuh is a Caretaker I in the Parks Division and is a permanent
The job description for Caretaker I defines the work and qualifications required as:
Characteristic Work of the Class
Nature: Under general supervision to
perform maintenance work on buildings and grounds and
equipment assigned to the Parks Division and to perform related work within the Department
Public Works as required.
1. Repairs and maintains
buildings and recreational area:
2. Operates tractor, mowers,
power saw, trucks, etc.
3. Cleans shelter houses,
comfort stations, and boat docks.
4. Directs individuals to picnic
5. Waters and cuts grass, rakes
leaves, and collects litter.
6. Plants grass, flowers, shrubs
and trees and lays sod.
7. Prunes and sprays shrubs
8. Shovels snow and sands
9. May operate filter plant and
10. Performs mason,
plumbing, painting, and carpentry related maintenance and construction
11. May operate boilers.
12. Notes violations of Park
Ordinances and notifies proper authorities.
13. Keeps records and makes reports.
. . .
Essential Knowledge Abilities:
1. Graduation from high school
2. Previous experience in
gardening, building and yard maintenance work.
1. Possession of a valid
Wisconsin Commercial Driver's License with B, C, D and Endorsement
N, air brakes required.
There is no job description for a LTS. They are assigned to parks and green
spaces to perform minor
painting and maintenance, open restrooms, clean restrooms, docks and shelters, pick up
small mowing and gardening jobs and general clean-up. These tasks overlap some of the
the Caretaker I.
On May 13, 1999, Kindschuh took eight hours of vacation. Osgood worked at
Kindschuh's normal work
location downtown and was paid her normal hourly rate. She did not operate any large
equipment or perform tasks
that she did not normally perform in her LTS position. The top hourly rate for a LTS is
$7.29, while the top rate for
a Caretaker I is $15.67. The instant grievance was filed, seeking out of class pay for
Osgood pursuant to Section #4
of the Memorandum of Understanding: ". . . performing the duties required of any
permanent bargaining unit position
when assigned to perform the duties of thatposition in
the absence of a permanent employee. . . ." The grievance was
denied in the lower steps of the grievance procedure and was referred to arbitration.
At the hearing on March 21, 2000, in addition to the facts recited above, the
testimony was taken:
Jennifer Barrett testified that she is a steward and former President and
Local 1366, and has been involved in contract negotiations since 1981. She was a member
Union's bargaining team when the 1995 Memorandum of Understanding was negotiated.
three points of the Memorandum addressed the use of specific pieces of equipment. The
aimed at payment for those duties which are not easily identified by pieces of equipment.
to Barrett, that section applies when permanent employes are absent, and does not require
LTS do anything beyond their normal duties to receive out of class pay, since there is a great
overlap between the duties of LTS's and permanent employes. Barrett reviewed other
which she felt that LTS's were receiving out of class pay for their normal work when the
employe was absent. She cited July 9 and 10, 1998, when Caretaker III Jay Furlong
was absent and
LTS Michael Stoffel worked in his absence. Stoffel received six hours of Caretaker III pay
Friday, July 10th. Barrett also
referred to August 17-19, 1998, when Kindschuh was off work and Osgood
received 24 hours of
Caretaker I pay. In June of 1999, after this grievance was filed, Kindschuh was absent on
18th, and Osgood received four hours of Caretaker I pay on the
18th. Barrett also testified that the
seasonal clerical who replaced her when she was gone was paid out of class pay, even
though she was
only trained to perform the most basic functions of the job, tasks that the seasonal also
when Barrett was there.
On cross-examination, Barrett agreed that in the case of Jay Furlong's 1998
absence, the LTS
received only six hours of out of class pay, even though Furlong was gone for two days, and
LTS had performed Furlong's actual duties on the day he received the Caretaker III pay.
respect to Osgood's receipt of Caretaker I pay for Kindschuh's August, 1998, absence, she
idea whether Osgood might have been working with a mower or other equipment that would
entitled her to out of class pay under some other section of the Memorandum. Barrett also
did not know whether Osgood was working with a mower on June 18, 1999, but she doubted
because she had asked employes to provide examples of payment under Section #4 of the
Memorandum. When shown an equipment record for that day, she conceded that Osgood
a riding mower for four hours on that day, and this was the reason she received the
Caretaker I rate.
Human Resources Director Ben Mercer testified that he negotiated the 1995
of Understanding. He expressed the opinion that Section #4 required both the absence of the
permanent employe and the performance of that employe's duties. He said that he denied
grievance because Osgood was performing only her regular work and did not do any of the
distinguishing tasks of the Caretaker I position. On cross-examination, Mercer reviewed the
collective bargaining agreement and agreed that the regular out of class pay language was
to LTS's: "Whenever an employee works at a higher rated job for three (3) consecutive
more, he shall receive the higher rate of pay for those hours worked in the higher rated job.
higher base rate will be the wage step in the wage scale for the higher rated job which is
commensurate with his years of service with the City." Asked what the need was for Section
the Memorandum, Mercer noted that the Memorandum differed because it required the
the permanent employe and did not mention the three consecutive hour threshold. He
however, that the three-hour threshold was applied to LTS's and that a LTS could receive
class pay even if the permanent employe was present, if the LTS performed the work of the
Parks Foreman Michael Boede testified that Osgood was normally assigned to
but that he assigned Osgood to work downtown on May 18, 1999, to pick up litter and pull
because Kindschuh was gone. This was the same work she performed at the park. He noted
used LTS's interchangeably with permanent employes at some locations. He cited the
staffed by a full-time employe from December 1st through the end of
March, and staffed by LTS's
during the April 1 November 30th period. He also cited the
downtown parking lots and mini-parks,
a year round job normally worked by Kindschuh, where he assigned LTS Chris Katz from
through November in 1999. He said he generally approved out of class pay for LTS's only
used a large piece of equipment, such as a
boom truck or a riding mower. In the case of Osgood's work on June 18, 1999,
he paid the
Caretaker I rather than Laborer I as specified in the Memorandum, because Kindschuh would
done the job if she was there, and the use of the mower is one distinguishing feature of the
On cross-examination, Boede conceded that the work at the Pavilion in the
only took four hours per day on Mondays, when there was accumulation from the weekend's
activities, and less time on other days.
Additional facts, as necessary, are set forth below.
ARGUMENTS OF THE PARTIES
The Position of the Union
The Union takes the position that the Grievant is entitled to out of class pay for
the absence of a permanent employe. The Memorandum of Understanding struck a balance
the interests of the parties. The City wanted flexibility in its work force during peak
Union wanted to protect full-time jobs from erosion. This is a particular concern where the
are paid less than half of the permanent employes' rate. Thus, the Union sought, and got, a
that required the City to pay the full-time rate for the work any time the permanent employe
and a LTS worked. This eliminated the City's incentive to displace permanent employes
That this is the proper interpretation of Section #4 of the Memorandum is
the City's payment of out of class pay in past instances. In 1998, Michael Stoffel worked
hours in the absence of other permanent employes and was paid at the Caretaker III rate.
the Grievant, Pam Osgood, received three days of Caretaker I pay in August of 1998 when
was absent, precisely the same situation as that which gave rise to this grievance. Again in
1999, Kindschuh took June 16th off and Osgood filled in for her for four
hours, receiving out of class
pay. While the City claims this was due to her operation of a riding mower, the mower in
is specifically mentioned in Section #1 of the Memorandum. If it was the operation of the
triggered out of class pay, she should have received Laborer I pay. The fact that Osgood
at the Caretaker I rate demonstrates that it was her replacement of Kindschuh that triggered
payment. Further, when Clerk/Stenographer II Jennifer Barrett was absent from her job, the
who replaced her were paid at her rate, even though they had only limited training and skills,
though they did nothing more than they did when Barrett was present. All of these cases
Union's interpretation of the 1995 Memorandum of Understanding.
The Arbitrator should reject the opinion of Mercer that Section #4 of the
applies when LTS's are performing the core functions of the permanent employe's job. If
the case, there would be no need for the Memorandum. The collective bargaining agreement
requires out of class pay for any employe, including LTS's, who performs
the core functions of a higher rated job. It is a basic rule that language is not to be
as to be
meaningless, and this principle reinforces the Union's argument that the Memorandum
more protection of the workers and the bargaining unit than does the contract's out of class
provision. It is the language of the Memorandum that is in issue here and that document
provides for out of class pay whenever a permanent employe is absent and a LTS is working
site and performing the same general duties. Pam Osgood met the requirements of this
when she worked in Bev Kindschuh's absence. Accordingly, she should have received out of
pay for May 18, 1999.
The Position of the Employer
The City takes the position that the grievance is without merit and should be denied.
issue here is the Grievant's entitlement to out of class pay. As Arbitrator Richard
in a recent Award involving these same parties, out of class pay is only warranted when an
performs the core, distinguishing functions of a higher rated job. Here, the Grievant did
than do her normal job in the normal way. She was not assigned to a different or more
of duties. Thus, under the precedent set by Arbitrator McLaughlin's Award, there can be no
The contract requires work in a higher rated job before out of class pay is owed to a
While there is overlap between jobs, here the Grievant did nothing that a seasonal worker
ordinarily have done. The Union presented no evidence whatsoever that Osgood was
Kindschuh's job, nor even any evidence of what Osgood actually did during the day on May
Their evidence established only that Kindschuh was gone that day and that Osgood was at
That cannot be the basis for granting out of class pay. In prior instances, seasonal employes
worked in the absence of permanent employes without receiving any additional
when Stoffel worked in the absence of Furlong for two days, he received the higher
Caretaker III rate
only for the six of the sixteen hours when he actually did the higher rated work. When
was gone on June 17 and 18, 1999, Osgood received only four hours of Caretaker I pay, the
hours she spent operating a mower. When Chris Katz worked alone downtown for several
in 1999, he did not receive out of class pay, even though the downtown assignment is a year
job that is normally staffed by permanent employes. Osgood did receive out of class pay for
days in 1998 when Kindschuh was gone, but the most reasonable inference is that she was
the distinguishing work of the Caretaker I job. The record clearly establishes that the Union
when it claims that the mere absence of a permanent employe gives rise to a right to out of
The City's position is also supported by the Memorandum of Understanding. Section
the Memorandum must be read in conjunction with the contract and reading those two
the following conditions before out of class pay is received:
A seasonal employe must be assigned to perform the duties of an absent
The seasonal employe must actually perform those duties for three
hours or more.
Here, there is evidence neither of Osgood's assignment to Kindschuh's duties nor her
of those duties on May 18th. Foreman Boede testified that he assigned
Osgood to the downtown on
that day, but that her assignment was to her normal tasks. There is no evidence of the work
actually performed, but it is fair to assume that she performed only her normal tasks. Thus,
neither of the criteria and cannot receive out of class pay.
The Union bears the burden of proving its case and it has provided no evidence on
Arbitrator could possibly grant this grievance. It has not proved what the employes who did
out of class pay were doing to merit the pay, and it has not proved that Osgood did anything
18th to merit the pay. Its theory that simply being at work when a
permanent employe is absent
triggers out of class pay is refuted by the language of the contract and the Memorandum, and
history of not paying out of class pay in such cases. Given this, the Arbitrator must
conclude that the
City's position is correct and he must, therefore, deny this grievance in its entirety.
The grievance seeks out of classification pay for a seasonal employe who performed
normal work duties in the absence of a permanent employe. The central question that
case is whether Section #4 of the 1995 Memorandum of Understanding creates an entitlement
of class pay for seasonals solely on the basis of the absence of a permanent employe having
duties. There is no evidence that Osgood was specifically assigned to perform Kindschuh's
on the day in question nor that she performed any duties other than the relatively simple litter
and weeding normally required of her position, tasks that are common to both jobs. Thus,
can be made out under the general out of class pay provisions of Article XIV which, as
McLaughlin noted, requires performance of the core duties of another classification
those that are
"key and relatively exclusive" to the higher rated position. At the most, the evidence here
the proposition that on May 13, 1999, Osgood went from Lakeside Park where she
to the downtown locations normally worked by Kindschuh and there performed her normal
The familiar rule is that clear language is to be applied, while ambiguous language
interpreted. The Union asserts that the 1995 Memorandum of Understanding covering out of
classification pay for seasonal employes was clearly intended to prevent the substitution of
for permanent employes by requiring out of classification pay whenever the permanent
gone. That is not an unreasonable thesis, and the language of the Memorandum can be read
enough to encompass this interpretation. Section #4 of the Memorandum says:
4. The above employees shall receive out of class pay when
performing the duties required of
any permanent bargaining unit position when assigned to perform the duties of
thatposition in the
absence of a permanent employee in accordance with the Labor Agreement.
Both parties agree that the absence of a permanent employe is a pre-condition to out of
under this particular provision, but they disagree as to the remaining requirements.
Article III of the collective bargaining agreement, the purpose of these positions is "to
work forces" and given the nature of the jobs a seasonal's duties will necessarily also be the
required of a permanent bargaining unit position just not all of the duties. The City
argues that this
means the core duties and that is consistent with the normal meaning given provisions of this
However, the Union's interpretation can certainly be made to fit with this language. The
of disagreement is whether by working at a site in the absence of a permanent employe
assigned there, the seasonal is effectively assigned to the absent employe's job. The Union
that the seasonal is thereby assigned, and in this case, Osgood was specially moved from her
assignment at Lakeside Park to the downtown area left vacant by Kindschuh's absence. The
asserts that the employe must be specifically "assigned to perform the duties of
meaning clearly directed to perform the permanent employe's job. Again, either argument is
supportable simply by reading the language. It is ambiguous on its face and understanding it
the Arbitrator to apply the customary principles of interpretation.
The Union argues that if Section #4 of the Memorandum merely restates the
Article IX, it is surplusage, and thus, runs afoul of the normal rule that arbitrators disfavor
interpretations rendering negotiated provisions surplusage. The Union correctly cites the
the Memorandum's terms are not precisely the same as Article IX. That provision states, in
part: "Whenever an employee works at a higher rated job for three (3) consecutive hours or
he shall receive the higher rate of pay for those hours worked in the higher rated job."
of the Memorandum requires, in addition, that the permanent employe be absent and that the
employe be assigned to perform the duties of the absent employe. Neither is a specific
of Article IX. These additional requirements make sense in the context of seasonal employes
as previously noted, the nature of their job duties is such that they will always be "[working]
higher rated job," which is the only substantive requirement in Article IX. Without the
provided by the Memorandum, the possibility exists that seasonal employes would have an
claim for out of class pay every time they performed their normal jobs. /1
1/ Having made this observation, I would note
that the requirement that the employe be "assigned" to perform
the work of another position does not necessarily require the saying of some set of magic
words. An employe can
be placed in a position where the performance of an absent employe's duties is
logically and forseeably required in order for
them to function, and the fact that no one specifically said "You
are to perform Employe X's job today" would not prevent the employe from claiming he or
she was "assigned" to
do the work.
Each party cites past instances in support of its interpretation of the Memorandum.
evidence concerning these instances is mixed. Barrett testified without contradiction that a
clerical employe in the Parks Division receives her Clerk/Stenographer II rate when she is
even though the seasonal performs only the simple tasks of answering the phone and taking
reservations and does not do the more involved record keeping aspects of her job. This
Union's view that the absence of the permanent employe is all that is required for the
receive out of class pay. The practice for the field personnel of the Parks Division is more
to the City's interpretation. Four instances were cited. The Union pointed to the July, 1998,
of Jay Furlong; the August, 1998, absence of Bev Kindschuh; and the June ,1999, absence of
Kindschuh. The City pointed to the assignment of seasonal Chris Katz to work alone at the
downtown lots and mini-parks from July to November in 1999.
In the Furlong absence and the June, 1999, absence of Kindschuh, the seasonal
received the higher rate of pay, but only for a portion of the time the permanent employe
Furlong was gone for two days and the seasonal received only six hours of out of class pay.
record does not reflect the specific work that the seasonal performed. Kindschuh was also
two days and the seasonal received only four hours of out of class pay. In that case, the
shows that Osgood ran a mower for four hours and that this was the reason for the out of
In both instances, if the Union was correct that the absence of a permanent employe was the
only pre-condition to receiving out of class pay, the seasonals should have received 16 hours
of out of class
pay. In the case of the August, 1998, absence of Kindschuh, Osgood received out of class
all three days. However, the record is again silent as to the work that Osgood performed on
days, and it is not possible to say with any certainty what the basis for the higher pay was.
The use of Chris Katz to work alone at the downtown lot and mini-parks for five
1999 with no payment of out of class pay, can be read as supporting the City's position. It
is a case
of a seasonal working in a job usually done by a permanent employe without the presence of
permanent employe. Whether this implicates Section #4 of the Memorandum depends upon
one views the phrase "absence of a permanent employee" as meaning that the seasonal is
alone at a site usually manned by a permanent employe, or as meaning that a permanent
be absent from work. There is no evidence that the City did not have its full complement of
permanent employes during the time Katz worked downtown merely that they were
elsewhere. I do not find it necessary to resolve this question in order to conclude that the
bulk of the
past practice evidence does not support the Union's overall argument.
Barrett testified that Section #4 of the Memorandum was negotiated because the
parties felt that the situation
of a seasonal working in the absence of a permanent employe would be a frequent
occurrence. The Memorandum was
negotiated in 1995, and took effect at the beginning of that season. There are eight
long-term seasonals working in
the field for the Parks Division. Each permanent bargaining unit employe in the Parks
Division is entitled to sick leave
(Article XV), compensatory time (Article VIII), two to three floating holidays (Article XIV)
and between 80 hours and
200 hours of vacation (Article XIII) per year. Yet in the five seasons that Memorandum has
been in effect prior to this
hearing, only three instances have been cited to show that the absence of a permanent field
employe entitles a seasonal
to out of class pay. Two of those instances do not, in fact, stand for that proposition, and
the third is ambiguous.
Given the limitations of this record, it is not possible to say with absolute certainty
what the parties intended
by Section #4 of the Memorandum of Understanding. Each party has put forward a plausible
interpretation and has
offered some proof of past practice in support of its position. The issue before the Arbitrator
is whether the City
violated the contract by not paying Pam Osgood out of class pay on May 13, 1999, and the
Union bears the burden of
persuasion on that issue. On the state of the record, I conclude that the Union has not borne
its burden of persuasion,
and accordingly that this grievance cannot be granted.
On the basis of the foregoing, and the record as a whole, I have made the following
The City of Fond du Lac did not violate Article IX Differential Pay and the
Memorandum of Understanding
dated October 23, 1995, when it denied "Out of Class" pay to grievant, Pam Osgood on May
13, 1999. The grievance
Dated at Racine, Wisconsin, this 7th day of August, 2000.
Daniel Nielsen, Arbitrator