BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY COURTHOUSE
LOCAL 332-A, AFSCME, AFL-CIO
Mr. Philip Salamone, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, on behalf of Local
332-A, AFSCME, AFL-CIO.
Ruder, Ware & Michler, S.C., by Attorney Dean R.
Dietrich, 500 Third Street, P.O. Box 8050, Wausau, WI
54402-8050, on behalf of Lincoln County.
On December 29, 1999, Lincoln County Courthouse Employees, Local 332-A,
AFL-CIO, hereinafter the Union, requested that the Wisconsin Employment Relations
appoint a staff arbitrator to hear and decide the instant dispute between the Union and
County, hereinafter the County, in accordance with the grievance and arbitration procedures
contained in the parties' labor agreement. The undersigned James R. Meier was appointed to
and decide the dispute. A hearing was held before the undersigned on March 20, 2000 in
Wisconsin. There was no stenographic transcript of the proceedings made. The record was
on May 26, 2000 with the filing of the final brief.
The Union submitted the issue as:
Did the County violate the collective bargaining agreement
it refused to reclassify the
grievants as directed by the Personnel Committee? If so, what is the appropriate remedy?
The County submitted the issue as:
Whether the County violated the collective bargaining
when it failed to pay an
additional wage increase due to a reclassification request based solely upon Personnel
action. If so, what is the appropriate remedy?
I conclude that the issue is:
Did the County violate the collective bargaining agreement
it failed to reclassify the
grievants pursuant to the approval of their reclassification requests by the Lincoln County
Committee? If so, what is the remedy?
One or the other of the parties, or both, have cited the following contract provisions
relevant to the determination of this issue:
ARTICLE 2 MANAGEMENT
2.01 The County possesses the sole right to operate County
Government and all management
rights repose in it, subject only to the provisions of this Agreement and applicable law.
include, but are not limited to the following:
A. To direct all operations of the
B. To establish reasonable work rules;
C. To hire, train, promote, transfer,
assign and retain employees;
D. To suspend, demote,
discharge, and take other disciplinary action against employees
for just cause;
E. To lay off employees
from their duties because of lack of work or any other legitimate
F. To maintain efficiency of
department operations entrusted to it;
G. To take whatever
actions as necessary to comply with state or federal law;
H. To introduce new or improved
methods or facilities;
I. To change existing methods or
J. To manage and
direct the working force, to make assignments of jobs, to determine
the size and composition of the work force, and to determine the work to be
performed by employees;
K. To utilize temporary,
part-time or seasonal employees when deemed necessary;
provided such employees shall not be used for the purpose of eliminating existing
L. To determine the
methods, means and personnel by which operations are to be
Any unreasonable exercise or application
of the above-mentioned management rights which
are mandatorily bargainable shall be appealable through the grievance and arbitration
however, the pendency of any grievance or arbitration shall not restrict the right of the
continue to exercise these management rights until the issue is resolved.
. . .
. . .
6. Decision of the
Arbitrator: The decision of the arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to the interpretation of the contract in
where the alleged breach occurred. The arbitrator shall not modify, add to, or delete from
of the Agreement.
. . .
12.01 An employee seeking a
reclassification shall present such request in writing to the
department head. The department head shall notify the employee in writing of his/her
recommendation within ten (10) working days. This recommendation shall be forwarded to
Personnel Committee for consideration at the next regularly scheduled meeting.
A union employee who is reclassified shall
be paid at the pay rate in the new pay grade to
which the position is reclassified consistent with the employee's length of service with the
The effective date of the reclassification shall be the first day of the first pay period
. . .
28.01 This Agreement may be amended any time during its
upon the mutual consent of
the parties. Any amendment supplemental to this Agreement shall not be binding upon either
unless executed in writing by the authorized representatives of the Union and Employer.
Position of the Union
The Union submits that the language of Article 12 Reclassification is
sufficient by itself to
determine the outcome of the dispute and that every prerequisite contained in
Article 12 for
reclassification has occurred. That being the case, the contract has necessarily been violated
the employes have not been paid consistent with their reclassified status.
The Union cites Arbitrator Whitney in Clean Coverall Supply Co., to the effect that
arbitrator cannot ignore clear contract language and Elkouri & Elkouri, How
Arbitration Works, to
the effect that disagreement between the parties as to meaning of language, does not make
language ambiguous, nor will an arbitrator give clear and unequivocal language a meaning
that expressed. Where the language is clear it should be enforced whether the results are
such enforcement meets the expectations of the parties.
The Union points out that under Article 5.6 of the parties' agreement (Jt. Ex. 1) the
is not to modify, add to or delete from the terms of the Agreement.
As well the Union posits that arbitrators have closely held to the limitations put on
a contract and cites Arbitrator Fieger to that effect
Not only is it axiomatic that the clear language of the agreement
must be honored, but here the
contract in exact terms forbids the arbitrator from ignoring 'in any way' the specific
provisions of the
contract nor giving, to either party, rights which were not obtained in a negotiating process.
The Union quotes Arbitrator Rauch to the effect that parties
charged with the knowledge
of the provisions and significance of contract language:
One of the most important facts about the collective bargaining
process is that the parties
involved are familiar with the employee and the business problems in respect to which they
agreement. Therefore, when a tentative agreement is reached, both of them know what it
expected to accomplish. Probably more important, however, is the fact that the entire Union
membership reviews the terms of tentative commitments and, based on the knowledge which
individual employee has of the matter is (sic) question, decides whether those terms are
Anticipating that the County will argue that past practice
control the outcome of this
case, the Union submits first that past practice has no relevancy where the language is clear
unambiguous as is Article 12 and even if found relevant, since only 6 of 33 reclass requests
denied by the County Board and only 3 of those affected an employe, there is insufficient
constitute a binding past practice. Finally, implicit in its framing of the issue, is the Union's
that if past practice proves anything, it is that the County Board merely confirms the decision
Position of the County
The County asserts that the contract language is silent and ambiguous as to the
procedure of reclassification requests and that when the labor agreement is read in its entirety
past practice is considered, no contract violation has occurred.
The contract language is ambiguous because it only states that reclassification
be forwarded to the Personnel Committee for consideration but does not state either that the
personnel committee has the authority for final approval, or that the Personnel Committee's
is forwarded to the County Board.
Citing Elkouri & Elkouri, the County submits that an agreement is
ambiguous if plausible
contentions may be made for conflicting interpretations of the language. Ambiguity is not
the face of the language itself, but on its application to the facts at hand and that proof of a
prior practice may itself persuade the arbitrator of the ambiguity of a contract provision
seemingly clear on its face.
The County submits that the Personnel Committee is a review committee of the
which makes recommendations to the County Board for its consideration and action. Thus
a gap in the contract language and therefore the language is ambiguous. As the arbitrator's
to determine the intent of the parties, and the contract is ambiguous, it is appropriate to look
bargaining history and past practice as well as the language of the contract to determine the
Principles of the use of past practice as an aid in contract interpretation emphasized
County include first, where practice has established a meaning for language under prior
meaning should be continued. Second, where a party has continuously failed to object to the
party's interpretation, such failure should be considered assent to that interpretation, thereby
providing the necessary mutuality and finally that it is appropriate to use past practice to fill
gaps in contract language where the language is silent.
Applying these principles to the facts of this case, the County asserts that the practice
parties supports the County's interpretation of the language and cites as evidence that in all
reclassification requests in the 13 years between 1985 and 1998 all requests required approval
County Board in order to be implemented. Further the official records of the County show
the Personnel Committee and the County Board view the Personnel Committee as a review
recommendation committee, and on several occasions, the Board refused to reclassify
where the Personnel Committee had recommended reclassification.
Additionally, in 1994 the County informed the Union in writing of its position that
reclassification requests must go before the full County Board and that the Personnel
no independent authority to grant such requests. The Union did not challenge the County's
interpretation and did not file a grievance then or even after the County Board rejected the
Committee's recommendation to reclassify the position.
The County finally argues that whereas Article 12 on reclassification is
ambiguous and in need
of interpretative help from past practice analysis, Article 2 Management Rights
unambiguously reserves to management the right to determine the ultimate outcome of
The arbitrator is duty bound to apply clear language in a contract and as Article 2 is
in the absence of limiting contract language, the arbitrator should find the Union's
contentions of a
violation of contract to be without merit.
As the parties agree, the facts of the case are straightforward and uncontroverted.
9, 1999 Lincoln County Register of Deeds Fiscal Clerk, Pamela K. Gilson wrote Jolene
Lincoln County Register of Deeds, and requested reclassification to the position of Program
Assistant. (Jt. 2A) On August 13, 1999 Lincoln County Register of Deeds Fiscal Clerk
wrote Jolene Callahan, the Lincoln County Register of Deeds, and requested reclassification
position of Program Assistant. (Jt. 2B) On the same date Jolene Callahan wrote Lincoln
Administrative Coordinator John Mulder and forwarded her recommendation for
the two employes. (Jt. 5) On August 31, 1999, the
Lincoln County Personnel Committee met and after considering the requests voted 3 to
2 to approve
the requests. (Jt. 6) On September 21, 1999 the Personnel Committee signed and submitted
consideration by the Lincoln County Board Resolution 37-99 which would "accept the
recommendation of the Personnel Committee and approves the following reclassifications to
effective September 6, 1999." (Jt. 7a) The Lincoln County Board took up Resolution 37-99
meeting on September 21, 1999, and after discussion tabled the resolution for one month on
of 19 to 3. (Co. 3)
The grievance on behalf of Sarah Koss and Pamela Gilson as drafted by Charlene
Steward, is dated September 29, 1999 with a "Date of Alleged Infraction" of
September 24, 1999.
(Jt. 8) The Board again took up Resolution 37-99 at its meeting on October 19, 1999 and
discussion decided to delay further action on a vote of 13 to 7. (Co. 1) The County
responded to the
grievance by letter of October 22, 1999 asserting that the reclassifications in question would
be approved by the County Board and citing past reclassifications as showing County Board
approval. (Jt. 9) By letter of October 26, 1999 the Union acknowledged the first step denial
notice of appeal to the Personnel Committee. (Jt. 10) At the November
11th meeting of the Personnel
Committee a motion to sustain the grievance failed for lack of a second and a motion to deny
grievance failed on a tie vote. The committee directed the Administrative Coordinator to
the Register of Deeds and the grievants to work out a compromise. (Jt. 11) Settlement
and by letter of November 19th, the Union asked that the matter be
rescheduled by the Personnel
Committee for its December meeting. (Jt. 12) At its meeting on December
8th, the Personnel
Committee took up the grievance with all parties present and adopted a motion to resubmit
reclassification requests to the County Board and place it on the Board's agenda for its
December 21st. (Jt. 13) On December 21st a motion to
take from the table failed on a vote of 12 to
10. (Co. 2) The Arbitrator found that the grievants complied with Article 12. All
since 1985 have occurred only after County Board approval. (Co. 4 testimony)
The issue before the arbitrator is whether the employes, Koss and Gilson are entitled
reclassification by sole reason of compliance with Article 12 and by the Personnel Committee
of August 31, 1999. No argument was made that the action by the Board was arbitrary or
as that issue is not before the Arbitrator.
The threshold question is whether Article 12 of the contract is clear and
urged by the Union to find that it is not and I am urged by the County to conclude that it is
ambiguous. Article 12 is not ambiguous. It is simple and straightforward.
The County submits that more than 15 years of reclassification history, all of which
beyond the language of Article 12, should constitute evidence of ambiguity. To that the
that clear language needs no extrinsic aids of interpretation and anyway, since only 6 of 33
reclassifications were rejected by the County Board and only 3 of those 6 involved
is insufficient variance from the recommendation of the Personnel Committee to constitute a
of anything other than that the Personnel Committee is the decision making body.
In looking at the contract, as well as the entire record, I am persuaded that Article 12
not state the complete agreement of the parties. Note for instance that Article 12 is two
paragraphs long where Article 11 on Transfers and Promotions is two pages long.
I conclude that these circumstances call for the application of the principle that past
itself may be evidence of a meaning which might in general usage connote some other fact or
meaning. [Arbitrator Dean, Circle Steal Corp. 85 LA 738]. I find this extensive and
practice to be sufficient to conclude that Article 12 does not completely state the prerequisits
reclassification and is therefore the use of past practice for "gap filling" is appropriate.
Elkouri 5th ed at 654.
Has the past practice been clearly enunciated and acted upon? The question then
whether the elements of past practice are present in such degree that the practice constitutes a
practice which has become a part of the contract. A past practice "to be binding on both
should be: (1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
ascertainable over a
reasonable period of time as a fixed and established practice; (4) accepted by both
Arbitrator Jules Justin in Celavese Corp. of America, 24 LA 168, 172 (1954) and cited in
& Elkouri 5th ed. at p. 632.
As referenced above, every reclassification that has occurred for employes covered
contract has occurred only after adoption of a resolution by the County Board, for at least the
15 years. Reclassifications recommended by the Personnel Committee for 6 positions have
rejected by the County Board and have not occurred. The history of County Board review of
Personnel Committee consideration referenced in Article 12 is unequivocal.
Every reclassification request recommended by the Personnel Committee has resulted
Resolution to the County Board signed by at least the Personnel Committee, has been
the County Board Agendas and resultant Board consideration and action, if any, has been
memorialized in Board minutes. Further, both County 12 and Joint 9 indicate that the
of Board consideration and approval has been stated by the County for years. County 12 is a
of February 8, 1994 from the Lincoln County Corporation Counsel, Bugstiom to Mr. Phil
AFSCME Staff Representative in which she states in pertinent part that the Personnel
has "adopted the Union's proposal and agreed to send the
same (reclassification requests) to the County Board for their approval. This final step
since the Committee has no independent authority to grant these reclassifications on any
9 is a letter from Lincoln County Administrative Coordinator John Mulder to Mr. Phil
AFSCME Staff Representative, stating that reclassifications need full Board approval and
County Board Resolutions in 1997 and 1998 approving reclassifications. I am satisfied that
requirement of County Board consideration and approval as a prerequisite to reclassifications
been clearly enunciated and acted upon.
The third element of binding past practice is that it be readily ascertainable over a
period of time as a fixed and established practice. As noted, the requirement of Board
and approval has been implicit in the actions of the Personnel Committee, County Board,
heads, human resource professionals for the last 17 years. Further, the acquiescence of
employes to the delays inherent in Board consideration and even occasional reclassification
by the Board indicate an established practice. I find that the requirement of Board
been readily ascertainable over a reasonable period of time as a fixed and established
The final element of binding past practice is that it be accepted by both parties. The
acceptance may be tacit and may be inferred from the circumstances. [Arbitrator Boroni, 88
734, 737]. Awareness of a practice is to be presumed from its long established and wide
nature. [Arbitrator Valtin in Bethlehem Steel Co 33 LA 374, 376 (1959)]. Further it is
that nothing in the exhibits is inconsistent with a finding that the parties accepted the fact that
approval is required and finally there is no bargaining history to the contrary. I find that the
is accepted by both parties.
In regard to the question of a practice of a prerequisite of Board action, there is little
as to its existence. There is no evidence of a reclassification ever occurring without Board
and even though the instances of reclassification rejection by the Board are not extensive, the
acceptance of those decisions is evidence of the parties' intent.
In considering the practice in conjunction with the language of Article 12 of the
it appears that the practice supplements the incomplete procedure set out in Article 12.
In sum, the
language of Article 12 supplemented by the practice provides that where a Union member
reclassification, the employe requests support in writing from the Department Head, who
within 10 days and which response goes to the Personnel Committee for its consideration at
meeting; the recommendation of the Committee then goes to the County Board for its
and action. Thus, under Article 12, an employe can commence a series of considered
steps which may result in the employe's reclassification by action of the County Board.
While the issue before me is whether Personnel Committee approval is sufficient
reclassification and not whether the Board action was arbitrary or capricious, I will note that
testimony of the Administrative Coordinator was that he recommended against the
reclassifications because organizationally the County allows only one Program Assistant
of the size and complexity of the Register of Deeds and that to grant the request as
the Register of Deeds would violate that organizational regime. The evidence shows that this
a concern to the Board as well.
The grievance is dismissed.
Dated at Madison, Wisconsin this 22nd day of August, 2000.
James R. Meier, Arbitrator