BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SUPERIOR LOCAL #74, INTERNATIONAL
ASSOCIATION OF FIREFIGHTERS
THE CITY OF SUPERIOR
Mr. Joe Conway, Jr., President, Madison Firefighters Local
311, International Association of Firefighters, AFL-CIO-CLC, appearing on behalf of the
Fryberger, Buchanan, Smith & Frederick, P.A., by
Attorney Joseph J. Mihalek, appearing on behalf
of the City.
Superior Local #74, International Association of Firefighters, AFL-CIO, (herein the
and the City of Superior (herein the City) are parties to a collective bargaining agreement,
15, 1999, covering the period January 1, 1999, to December 31, 2001, and providing for
arbitration of certain disputes between the parties. On January 13, 2000, the Union filed a
with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
regarding claims for wage increases and back pay allegedly due to Firefighters Lindzi
Thomas LeSage, Eric Sutton and Steve Smith (herein the Grievants) as the result of a recent
settlement and requested the appointment of a member of the WERC staff to arbitrate the
undersigned was designated to hear the dispute and a hearing was conducted on June 5,
proceedings were not transcribed and the parties filed briefs on July 11, 2000.
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 parties stipulated to the following statement of the issues:
1. Did the Employer fail to calculate the wage rate and back
pay adjustment for
Firefighters Campbell, LeSage and Sutton in accordance with the terms of the 1997-98 wage
If so, what is the remedy?
2. Did the Employer fail to calculate
the wage rate and back pay adjustment for
Firefighter Smith in accordance with the terms of the 1997-98 wage agreement?
If so, what is the remedy?
1997-98 CITY OF SUPERIOR AND IAFF LOCAL #74 WAGE
Through negotiations with the City of
Superior and IAFF Local #74, the contract period of
January 1, 1997 through December 31, 1998 is settled through the implementation of a salary
structure model for the unit that will consider the average of market comparisons. This
implementation is contingent on continuance of this model through a successor agreement for
period 1/1/99 through 12/31/01.
. . .
The salary schedule for the IAFF
Unit Local #74 would be as shown in Appendix A. General wage
increases would be calculated on Step 1 of the range for Firefighter, Motor Pump Operator
and Fire Captain. The general wage increase would be as follows: 1997 3% and
Current employees, employed prior
to the date of ratification of this agreement, would be placed on
Step 2 of the salary range effective January 1, 1997 and then move up one step on the salary
schedule effective January 1 of each subsequent calendar year.
Grandfathered Firefighter employee
would receive a 3% salary increase 1/1/97 and a 3% salary
increase 1/1/98. Upon the next available promotion, if the grandfathered employee does not
request consideration for or receive a
promotion, his salary will be frozen at his current rate until
salary for Firefighter is the
same as or exceeds this amount at which time he will be placed on that salary step and the
grandfathered provision would be removed from the Working Agreement.
Base rates would be considered as follows:
90% of Step 1 for a period of 12 months
95% of Step 1 for the next period for 6
After 18 months move to Step 1 of the
1997 general wage increase + 2.0% step
increase at Step 2
general wage increase + 1.5% step
increase at Step 3
. . .
The salaries of the members of the
bargaining unit according to their respective positions are
hereby established for the complete years 1997 and 1998. Annual salaries are based upon 56
work week or 2912 hours of work in a year unless otherwise noted.
. . .
. . .
Newly Hired Employees Entry Firefighter:
From date of hire to completion of one (1)
full year's service ninety percent (90%) of full rate
for the position.
From completion of one (1) full year's
service to completion of eighteen (18) months of service
ninety-five percent (95%) of the full rate of the position.
After eighteen (18) months of service
Step 1 of the Firefighter rate.
. . .
City of Superior Settlement
Union Local #74 1996 Wage Reopener
This offer settles all matters arising through
a salary reopener provision under the current
working agreement to expire on 12/31/96.
. . .
2. Effective January 1, 1996
implement salary increases as follows:
a. Establish salary range (5%
increase) for Firefighter as follows:
Step 1 - $ 9.86 0 to 1 year
Step 2 - $10.38 1 year or more
Range B (See 3 below) $10.90
Current employees would move to salary
step corresponding to their current step and then
progress through this salary range on their anniversary date(s).
Grand fathered Firefighter employee would
receive a 3% salary increase. Upon the next available
promotion if the grandfathered employee does not request consideration for or receive a
his salary will be frozen at $10.92/hour until the salary for Firefighter is the same as or
amount at which time he will be placed on the salary step at the top of the range and the
grandfathered provision would be removed from the working agreement.
. . .
This case involves two separate grievances, both of which concern the proper
of back pay under the parties' 1997-98 wage settlement, and which were consolidated for the
of arbitration. For purposes of clarity, due to the fact that the grievances arise out of
circumstances, they will be treated separately in this award.
Campbell, LeSage and Sutton Grievance
The City and the Union were parties to a collective bargaining agreement which
period from January 1, 1994, to December 31, 1996, and which contained a wage reopener
for 1996 (Jt. Ex. 1) This agreement contained two wage levels for firefighters based upon
hire. There was one level for those hired prior to January 1, 1987, of which there was one
employee, and a second level for those hired thereafter. In addition, newly hired firefighters
receive 85% of the firefighter base wage for their first full year of employment, 90% for
year and 95% for their third year. After three years' employment they would receive 100%
firefighter base wage.
In 1996, the parties engaged in negotiations pursuant to the wage reopener provision
reached a settlement on January 7, 1997. Under the terms of the settlement a new two-step
structure was implemented, which established a base wage as of January 1, 1996, of $9.86
for firefighters employed for less than one year and $10.38 for firefighters employed for a
more. (Jt. Ex. 2) The 1994-96 contract expired prior to the parties achieving settlement of
During the hiatus period between contracts, the City hired the three Grievants as
Campbell was hired on August 26, 1997, Thomas LeSage was hired on January 7, 1998, and
Erik Sutton was
hired on January 27, 1998. At the time of hire, each of the Grievants was paid the base rate
provided in the 1996 reopener agreement and each was raised to the Step 2 rate of $10.38 on
On June 8, 1999, the parties entered into a wage settlement covering the period from
January 1, 1997,
through December 31, 1998, as well as a successor agreement to the 1994-96 contract, which
period from January 1, 1999, through December 31, 2001. Thereafter, the City computed
back pay from
January 1, 1997, and issued checks to the bargaining unit employees accordingly. The
to the amount of the back pay and claimed, through the Union, that they were entitled to
more because under
the terms of the 1997-98 settlement, their back pay was to have been calculated starting at
Step 2 of the
firefighter pay range. The City demurred and argued that the under the settlement the
considered entry level firefighters, and, therefore, their back pay was properly computed
based upon 90%
or 95% of the Step 1 wage rate, depending upon their date of hire. A grievance was filed
took place, but without result, and the grievance proceeded to arbitration.
The Grievant, Steve Smith, was hired as a firefighter on March 6, 1980. At some
point during his
tenure, the City and the Union apparently entered into a two-tiered wage scale for firefighters
date of hire. Under this formula, firefighters hired before January 1, 1987, would be
paid a wage that was
7.22% higher than firefighters hired thereafter. This formula was utilized through the first
two years of the
1994-96 contract, by which point the Grievant was the only remaining firefighter who
qualified for the higher
Under the terms of the 1996 reopener agreement, the formula was changed in two
First, the Grievant received a 3% wage increase, whereas all other firefighters received a 5%
effect reducing the wage differential between the Grievant and the other employees to 5.2%.
clause was included to the effect that if the Grievant did not request or receive a promotion,
become available, his wage rate would be frozen until such time as the other firefighters
caught up, at which
time he would be slotted at the top of the wage scale. These changes addressed interests the
City had in
compressing and eventually eliminating the differential in wages by encouraging the Grievant
promotion out of his classification.
The 1997-98 wage settlement restructured the firefighters' pay scale and introduced a
structure, while slotting current firefighters at Step 2 as of January 1, 1997, and Step 3 as of
January 1, 1998,
for advancement and back pay purposes. Under the settlement, firefighters received general
increases of 3%
in each year and additional step increases for Steps 2 and 3 of 2% in 1997 and 1.5% in
1998. Because the
Grievant's wage exceeded the top end of the five-step range, an additional clause was again
included for him,
indicating that he would receive 3% increases in each year and again reiterating the
stipulation that his wages
would be frozen should he not request or receive any available promotion.
The 1999-2001 contract retained the 5-step pay structure. It also provided for
of 3% in 1999, 2.5% in 2000 and 2.5% in 2001, along with 1% step increases to Steps 4
and 5 in 1999 and
2000. Special language was again included specifying that the Grievant would receive
general increases of
3%, 2.5% and 2.5% in each year of the contract and that his wage would be frozen should
he not request or
receive any available promotion. The net effect of the increases, as calculated by the City,
was to continue
to narrow the gap between the Grievant and the other firefighters until, by 1999, the
differential had shrunk
to 5.07%. On January 10, 2000, the Grievant was promoted to Fire Captain.
The Grievant filed a grievance on July 30, 1999 alleging that the City violated the
terms of the 1996
reopener agreement and the 1997-98 wage settlement in calculating his wage rate and back
pay for 1997 and
1998. He asserted that the agreement and past understanding of the parties was that the
differential established in the 1996 reopener agreement was to be maintained and, therefore,
he was entitled
to the 2% and 1.5% step increases allotted to the other firefighters in 1997 and 1998, as
well. The City
denied the grievance and the matter proceeded to arbitration.
POSITIONS OF THE PARTIES
Campbell, LeSage and Sutton Grievances
The language contained in the 1997-98 wage settlement is clear and unambiguous. It
Current employes, employed prior to the date of ratification of
this agreement, would be placed on Step
2 of the salary range effective January 1, 1997 and move up one step on the salary schedule
1 of each subsequent calendar year.
The agreement was ratified on June 8, 1999. Under this
language, Campbell (d/o/h 8-26-97), LeSage (d/o/h
1-7-98) and Sutton (d/o/h 1/27/98) were all current employees. As such, Campbell was
entitled to be placed
at the Step 2 wage rate from August 26, 1997, through December 31, 1997, and the Step 3
wage rate on
January 1, 1998. LeSage and Sutton were entitled to be placed at the Step 3 wage rate on
dates of hire.
The City erroneously placed the Grievants at the 90% rate established for an entry
clearly violates the language of the agreement, which placed current employees at Step 2 as
of January 1,
1997, and made the date of ratification the defining point for what constitutes a current
employee. It is
irrelevant, therefore, that the Grievants were not employees as of January 1, 1997.
Local #74 President, Steve Panger, testified that the intent of the Union was to put all
firefighters, except Steve Smith, at the same level and progress them through the steps
Grievants do derive a benefit in that they are moved up to the level of more senior
firefighters, but this
reflects an attempt to draw a bright line in order to resolve wage issues simply and treat
consistently, which is not unusual in cases where contract negotiations have taken a long
testimony makes it clear that the language in the 1997-98 wage settlement can only have been
include the Grievants in the definition of current employees.
If the City had considered the Grievants to be entry firefighters, as it claims, then it
should have placed
them at the 90% rate as of their dates of hire, moved them to the 95% level after 12 months
and placed them
at Step 1 after 18 months. It did not do this. Campbell was placed at the 90% rate as of
August 26, 1997,
moved to the 95% rate on January 1, 1998, and to the Step 1 level on January 1, 1999.
LeSage was placed
at the 90% rate on January 7, 1998, and moved to the 95% rate on January 1, 1999. Sutton
was placed at
the 90% rate on January 27, 1998, and moved to the 95% rate on January 1, 1999.
Clearly, the City acted
arbitrarily in placing the Grievants on the schedule and did not follow the formula set forth
the contract, even assuming the Grievants were entry firefighters. The flaw in the
City's logic can be shown
by the fact that Campbell's original wage at time of hire was $9.86, yet the City calculated
her wage rate
under the 1997-98 settlement as $9.62 for back pay purposes, a reduction of $0.24.
The City argued that the parties reached a settlement of sorts, whereby the Grievants
would be placed
at Step 1 of the pay scale, but testimony of Union President Panger revealed that settlement
of the membership, which did not occur. Further, the City's proposal does not agree with
language. Therefore, the grievance should be sustained and the Union's interpretation of the
The City incorrectly argues that the language of the 1997-98 wage settlement was
intended to result
in an eventual erosion of the difference between the Grievant's wage rate and the top step for
under the contract. The language concerning the Grievant was inserted to encourage him to
Thus, it was only to have effect in the event he failed to seek or receive an available
promotion. Where no
promotion is available, the language has no application and should be ignored.
To the contrary, there is an established past practice of maintaining a wage
differential between the
Grievant and the other firefighters. Between January 1, 1991, and January 1, 1996, there
was a difference
of 7.22% between the Grievant's wage and that of the other firefighters. This was reduced
to 5.2% in the
1996 reopener agreement only because otherwise the Grievant's wage would have been
within the Motor
Pump Operator category, which the parties sought to avoid. This was a one-time exception,
has no precedential effect.
Under the 1997-98 agreement, the only circumstance under which the Grievant's
was to have eroded was in the event he did not accept an available advancement opportunity.
This did not
occur. The contract does not provide for reduction of the wage differential under any other
and to do so was a clear violation of past practice. The grievance should be sustained.
Campbell, LeSage and Sutton Grievance
Under the 1997-98 wage agreement, firefighters with less than 18 months experience
entry employees and qualified for a lower wage rate. It is not disputed that the agreement,
in June 1999, was to have retroactive effect to January 1,
1997. All three Grievants were hired after January 1, 1997, and so could not be
placed at Step 2 as of that
date, notwithstanding the language of the agreement. Clearly, the Grievants were entry
the 1997-98 agreement, as well as under the 1996 reopener agreement, which classified any
less than three years experience an entry level employee. The 1996 agreement was still in
effect when the
Grievants were hired.
Campbell was hired on August 26, 1997. Under the 1997-98 agreement, her
beginning wage was
90% of Step 1 and she would not reach Step 2 until February 26, 2000. Nevertheless, the
Union argues that
she should have been placed at Step 2 as of her date of hire. Likewise, LeSage and Sutton
were hired on
January 7, 1998, and January 27, 1998, respectively. They should have been placed at the
90% rate as well
and would not reach Step 2 until January 1, 2001, yet the Union claims that under the
they should have been paid at the Step 3 rate retroactive to their dates of hire.
The Union's position, if sustained, would lead to an absurd and unjust result. It
would require the
Arbitrator to ignore 1) the clear language of the contract regarding entry level employees; 2)
the fact that only
employees as of January 1, 1997 could qualify for the Step 2 rate on that date; 3) the parties
intent that more
experienced firefighters should be paid more than less experienced firefighters; and 4) the
fact that the 1997-98 agreement, though signed in 1999, was retroactively effective. It would
also credit the Grievants for
service time they have not earned and award them Step 2 or Step 3 wages as of their dates of
The Union misconstrues the language of the 1997-98 agreement to mean that all
employees as of the
date of ratification should be paid at Step 2 as of January 1, 1997, and Step 3 as of
January 1, 1998, and that
this includes the Grievants. In fact, the language was intended to deal with the transition of
were at Step 2 under the 1996 reopener to the new five-step scale instituted in 1997, by
placing them at Step
2 on the new scale, which required the equivalent of 30 months service. There is no
language in the
agreement providing for new hires to be placed at Step 2 or 3, nor that the language
firefighters was to be ignored.
It is obvious that to receive the Step 2 rate as of January 1, 1997, one must be an
employee as of that
date. The Union argues, however, that the Arbitrator should ignore the fact that the
effective date of the
agreement was January 1, 1997. Under its interpretation, an employee hired in 1997 would
start at Step 2,
an employee hired in 1998 would start at Step 3 and an employee hired on June 7, 1999, the
day prior to
ratification, would start at Step 4. An employee hired on June on June 16, 1999, however,
would only start
at 90% of Step 1. This would be an unreasonable result and inconsistent with the parties'
intention of giving
higher compensation to more experienced firefighters.
On July 15, 1999, the Union requested that the City exempt the Grievants from the
clause, as shown on Employer Exhibit 3, but the City rejected this request. The City did
enter into a
negotiated settlement, however, placing the Grievants at Step 1 as of
their dates of hire, based on the Union representatives' assurance that they had
authority to agree, and paid
the Grievants accordingly. Subsequently, the Union failed to ratify the agreement and
representatives did not have authority to enter the agreement. Thus, the Grievants were, in
The Arbitrator should, therefore, enforce the contract according to its terms and require the
reimburse the City for the money they have been overpaid.
It is a general tenet of contract construction that, where multiple contract clauses bear
on the same
subject, general language is usually restricted by specific language unless a contrary intention
manifested. In this case, the parties' agreement provides that all current employees are to be
placed at Step
2 as of January 1, 1997. Since the Grievant's wage was greater than the Step 2 rate,
however, a specific
clause was added addressing his wages. The "Smith" clause provided that the Grievant
would receive general
increases in 1997 and 1998. Only in the event that his wage rate was frozen would he be
placed on the step
schedule and then only when the other firefighters had achieved his rate.
The other firefighters received the same general increases as the Grievant, but they
additional 2% step increase in 1997, which was the differential between Step 2 under the
1996 reopener and
Step 2 under the 1997-98 agreement. The Grievant does not seek to be paid at the Step 2
rate, because that
is less than his regular rate, but he does seek the same step increase to maintain the same
This is contrary to the parties' intention in negotiating the agreement, which was to gradually
differential between the Grievant and the other firefighters.
The Union's argument is also undermined by the doctrine of "expressio unius, est
which holds that the particular inclusion of one thing, excludes other items not mentioned.
clause expressly states that he will receive 3% increases in 1997 and 1998. It does not
mention step increases
or refer to the increases of other firefighters. Because the clause is specifically applicable to
therefore, he does not qualify for the additional increases paid to the other firefighters.
The specific language of the contract defeats the Grievant's claim. Had the parties
intended for the
Grievant to receive step increases, appropriate language would have been included in the
"Smith" clause, but
it was not. The clause is specific in stating that he will only receive general increases. This
reflects the intent
of the parties to eventually compress the wage differential until all firefighters were on the
same scale. This
was eventually achieved in January, 2000, at which point the Grievant accepted a promotion
to Fire Captain.
The grievance should, therefore, be denied.
Campbell, LeSage and Sutton Grievance
This case centers on an evaluation of two arguably applicable clauses in the parties'
agreement (Jt. Ex. 3). The first stipulates that all current employees, defined as those
employed prior to
ratification of the agreement, shall be placed at Step 2 of a newly adopted 5 step wage scale
as of January
1, 1997, and Step 3 as of January 1, 1998. The second specifies that entry level firefighters
shall be paid 90%
of the Step 1 wage rate for their first full year of employment, 95% for the next six months
and the full Step
1 rate thereafter. The juxtaposition of these provisions arises because the three Grievants
herein were all
hired after January 1, 1997, but prior to ratification of the agreement on June 8, 1999.
Thus, the Union views
the Grievants as current employees and the City views them as entry firefighters, as those
terms are used
within the agreement.
Standing alone, each of these provisions is clear and unambiguous, but when applied
together to the
present situation confusion is created as to which controls. It is important, therefore, to
underlying intent of the parties in drafting both provisions, if possible, in order to arrive at
the proper result.
To do so, it is necessary to view each provision within the context of the entire agreement
and it is also
necessary to be aware of the bargaining history and external circumstances surrounding the
In the first place, according to the terms of the 1996 reopener agreement, under
which the Grievants
were hired, there was not a category of "entry firefighter," which received a fractional wage,
previously been the case. The Grievants were all hired at the full Step 1 rate under
the reopener and were
advanced to the Step 2 rate on their respective anniversary dates. At this point, therefore,
they were at the
same wage rate as the other firefighters, save the one covered by the grandfather clause.
The position of "entry firefighter" and the concept of fractional wages were
reintroduced in the 1997-98 wage agreement, along with the adoption of a 5-step wage scale
and, because the Grievants all fell within
the definition of an entry firefighter their back pay was computed at entry firefighter rates
(U. Ex. 7).
Anomalously, under this analysis the Grievant Campbell's back pay rate as of her date of
hire was $9.62,
although her original wage rate was $9.86, which would have resulted in her having to
reimburse the City
$0.24 an hour for the period from August 26, 1987 to January 1, 1998. In fact, this is the
remedy that the
City now seeks. In my view, however, under the 1997-98 agreement the Grievants are
as current employees, rather than entry firefighters and, therefore, are entitled to the
corresponding wage rate.
The agreement unequivocally defines "current employees" as including all employees
". . . employed
prior to the date of ratification of this agreement. . .," which clearly includes the Grievants.
Had the parties
intended the clause to have the effect advanced by the City,
they could have defined current employees as being those employed prior to the
effective date of the
agreement. Had they done so, there would have been no question that the Grievants were
because they had all been employees for less than 18 months during the term of the
they could have included language specifically excluding the Grievants from the definition of
employees because they were hired during the term of the agreement. They did neither, and
their silence had
the effect of encompassing the Grievants within the category of current employees.
While the City forcefully argues that this was the effect of the language regarding
I am not persuaded this is so. There was no position of entry firefighter at the time the
Grievants were hired,
because that classification was eliminated in the 1996 reopener. At the time the 1997-98
ratified, they were at the Step 2 rate under the reopener, along with the other firefighters.
To hold that the
entry firefighter language in the 1997-98 agreement applied to the Grievants, therefore,
would have the effect
of moving them backward, for they would not advance at the same rate as the other
firefighters who were
at Step 2 at the time of ratification. Union President Panger testified that the parties intended
that all current
firefighters be placed at the same level and advanced accordingly and this testimony was
The City points out, however, that under the language of the agreement current
employees were to
be placed at the Step 2 level as of January 1, 1997, for back pay and advancement purposes
and that this is
an impossibility as regards the Grievants since they were not employees on that date. While
this is true, the
key is that the provision applied to all employees as of June 8, 1999, regardless
of date of hire, with the intent
of establishing them at the Step 2 rate between January 1 and December 31, 1997, and the
Step 3 rate as of
January 1, 1998. This does, as the City points out, result in the Grievants effectively having
a hiring rate at
Step 2 or Step 3, which is much higher than the rate applicable to any firefighters hired after
the date of
ratification, but that is the logical result of standardizing wage rates and establishing
baselines, as the parties
did here, and it is within their capacity to do so in a collective bargaining agreement. I find,
the Grievants are current employees under the 1997-98 wage agreement and that the
entry firefighters was intended only to have prospective application. As a result, the
Grievant Campbell was
entitled to be placed at Step 2 as of August 26, 1997, and the Step 3 rate as of January 1,
1998, for back pay
and advancement purposes. The Grievants LeSage and Sutton were entitled to be placed at
the Step 3 rate
as of January 7, 1998, and January 27, 1998, respectively, for back pay and advancement
The Grievant, Steven Smith, by virtue of being, for some time, the only firefighter in
the Superior Fire
Department hired prior to January 1987, was established at wage rate 7.22% above that of
firefighters in the department. The testimony and documentary
evidence indicate, however, that the City desired to eliminate this disparity and also to
encourage the Grievant
to seek a promotion out of the firefighter classification. In consequence thereof, the parties
special clause into 1996 reopener agreement specifically addressing the Grievant, the intent
of which was to
eventually eliminate the Grievant's special category. The provision required to the Grievant
to seek any
available promotion and accept any that was offered, otherwise his wage rate would be
frozen until the wage
rate the other firefighters caught up. Similar language was incorporated into the 1997-98
A second aspect of the 1996 agreement provided the Grievant with a 3% wage
increase, whereas the
other firefighters received a 5% increase. All parties agree this was to prevent the
Grievant's wage rate from
moving into the range of a Motor Pump Operator. It also had the effect of reducing the
between the Grievant and the other firefighters to 5.2%. This erosion continued under the
implementation of the 1997-98 agreement, because it provided 3% general increases to all
also provided step increases to the other firefighters, which were not given to the Grievant.
The Union does not dispute that the purpose of the "grandfather" clause was to
to seek promotion and thereby eliminate his special classification. Neither does it dispute the
intent or effect
of the wage freeze language if he did not do so. The dispute centers on the fact that the
Grievant did not
receive commensurate step increases in 1997 and 1998 to maintain the 5.2% differential.
The Union argues
that the parties have maintained this wage structure for an extended period and that, absent
to the contrary, the 1997-98 agreement should be interpreted in such a way as to perpetuate
it. I do not
The language of the 1997-98 agreement places all current employees at Step 2 of the
wage scale as of January 1, 1997, with a 2% step increase along with a 3% general increase.
On January 1,
1998, they would be advanced to Step 3, with a corresponding 1.5% step increase and a 3%
This language applied to all firefighters generally. The separate provision, which applied
specifically to the
Grievant, provided him the 3% general increases each year, but made no mention of step
increases or the
maintenance of a wage differential.
It is a generally accepted principle of contract interpretation that specific provisions in
constitute exceptions to general provisions which have contrary effect. Thus, where specific
provisions bear on the same issue, the specific should take precedence City of Houston, 86,
LA 1068, 1072
(Stephens, 1986). Here, the general language provides all employees with step increases and
increases, but the clause specifically dealing with the Grievant only mentions general
increases, leading to the
inference that he was not intended to receive step increases with the other employees.
Further, it is true, as the Union argues, that the parties had an apparent practice of
maintaining a static
percentage gap between the Grievant's wage rate and that of the other
firefighters, but it appears from the evidence that the parties had elected to depart from
that practice. This
is evident from the reduction of the percentage in the 1996 agreement from 7.22% to 5.2%
1/ The fact that
the 1997-98 agreement only provides for general increases supports this conclusion. The
Union argues that
the parties' intent was to retain the differential, but this is not reflected in the language of the
Further, it is inconsistent with the uncontroverted fact that the reason the differential was
reduced was to
avoid having the Grievant's wage rise into the Motor Pump Operator range. As with the
had the parties chosen to do so, they could have incorporated specific language either
providing the Grievant
with step increases or memorializing their understanding regarding the wage differential, but
they did not,
leading to the conclusion that the continuing goal was to keep the Grievant's wage rate below
that of a Motor
1/ The Union points out that the reduction in
1996 was intended to prevent the Grievant's wage rate from rising to the
level of a Motor Pump Operator. It is worthy of note that under the 1997- 98 agreement the
Step 1 rate for a Motor Pump
Operator in 1997 was $11.45 per hour. If the Grievant received the step increases he prays
for here, his 1997 rate would
be $11.47 per hour.
Another point which must not be overlooked is that the step increases provided to the
firefighters were a consequence of the adoption of the 5 step wage range in the 1997-98
the other employees were placed on the grid at Step 2 as of January 1, 1997, and advanced
one step annually
until they reached Step 5 on January 1, 2000, at which point they, too, would receive only
thereafter. Specifically, the provision places all "current employees" at Step 2 and provides
advancement, thereby tying the step increases to the initial Step 2 placement. The Grievant
was off the grid,
however, and was excluded from this provision by specific language.
Finally, the Union argues that the City, in effect, implemented the "wage freeze"
language of the
grandfather clause improperly because the condition precedent, that the Grievant have been
refused a promotion, had not occurred. This is not strictly true, however, because the
Grievant's wage rate
was not frozen. While he did not receive the same step increases as the other firefighters, he
receive general increases, whereas under a wage freeze he would have received no increases
As with the other grievance, this situation reflects the tension created by a
standardize wage rates and establish baselines, but this time from the other end of the scale.
determination to establish a uniform wage grid had a compressing effect from both ends of
artificially advancing junior members of the bargaining unit, while slowing the advance of
the most senior,
in the hopes of thereby improving the lot of the group as a whole. Thus, the inference that
the Grievant was
not intended to receive step increase
under the 1997-98 agreement is consistent with the scheme underlying the wage
restructure. I find, therefore,
that the City did not violate the 1997-98 agreement or past practice in denying the Grievant
Based upon the foregoing, and the record as a whole, the undersigned enters the
The City failed to calculate the wage rate and back pay adjustment for
LeSage and Sutton in accordance with the terms of the 1997-98 wage agreement. The City
therefore, make the Grievants whole as follows. The Grievant Campbell's wage rate shall be
established at the Step 2 rate under the 1997-98 agreement as of August 26, 1997, and at the
rate as of January 1, 1998, and her back pay shall be adjusted accordingly. The Grievant
wage rate shall be established at the Step 3 rate under the 1997-98 agreement as of January
and his back pay shall be adjusted accordingly. The Grievant Sutton's wage rate shall be
at the Step 3 rate under the 1997-98 agreement as of January 27, 1998, and his back pay
The City did not incorrectly calculate the wage rate and back pay
adjustment for the Grievant
Smith in accordance with the terms of the 1997-98 wage agreement and his grievance is,
Dated at Eau Claire, Wisconsin, this 19th day of October, 2000.