BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 71, AFSCME, AFL-CIO
CITY OF KENOSHA
Mr. John P. Maglio, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Roger E. Walsh, Attorney at Law, Davis & Kuelthau,
S.C., appearing on behalf of the City.
The parties named above jointly requested the Wisconsin Employment Relations
to appoint the undersigned to hear and resolve the grievance of John Yunker regarding a
working hours. The undersigned was appointed and held a hearing in Kenosha, Wisconsin,
13, 2000, at which time the parties were given the opportunity to present their evidence and
arguments. The parties completed filing briefs by October 16, 2000.
The issue to be decided is:
Did the City violate the collective bargaining agreement when it
changed the hours of work of
John Yunker from 7:00 a.m. to 3:30 p.m. on Mondays, Wednesdays and Fridays and 8:00
4:30 p.m. on Tuesdays and Thursdays to 11:00 a.m. to 7:00 p.m. Mondays through Fridays
April 26, 1999 and October 31, 1999? If so, what is the appropriate remedy?
This dispute centers around contract provisions regarding hours of work and the
history for a new provision, Section 27.03, which states:
An annual or seasonal flexible starting time work schedule may be
utilized in those City
departments/divisions where the parties mutually agree. Such flexible starting time work
may vary by not more than one hour from the starting time hours in accordance with
Appendix B of
the labor agreement. Such flexible starting time work schedule agreement may be withdrawn
either party with a minimum of five (5) days notice.
Also in the contract, in Appendix B, is a list of department work schedules in effect on
1998, followed by this statement:
It is mutually understood that the above schedules are those in
effect on March 25, 1999 and that
they are subject to change upon proper notification being given by the City.
The City has considered a two-week notice to be a proper notification in accordance
with the above
language, and the Union has not objected. Also in Appendix B the hours stated for
and Meter Test Employees calls for "flex hours depending on day light hours."
There are five employees who are Water Meter Maintainers. In order of seniority,
Willard Puckett, Mark Young, John Yunker, Joseph Rivera and John Oscar. All of them
same hours of 7:00 a.m. to 3:30 p.m. and 8:00 a.m. to 4:30 p.m. until Oscar and Yunker
assigned to 11:00 a.m. to 7:00 p.m. to test meters in homes between April and November in
Rivera filled in when either Oscar or Yunker were absent and took some later hours.
Oscar filed grievances. Oscar's grievance was withdrawn, and Yunker's grievance is the one
considered in this award.
The Public Service Commission requires the City to test all meters for accuracy.
meters have to be tested every ten years. Large meters are tested more often, and those tests
run in the spring, summer and fall when water running through the meters would not freeze.
are also done in the summer. The City needed to test 3,600 residential water meters in 1999
far behind schedule. When employees went door to door during their regular working hours,
85 percent of their attempts to get into homes were unsuccessful. Residents wanted
for customer service for late afternoons or Saturdays.
Yunker and Oscar were doing the residential testing as of January in 1999. Yunker
weight restriction on lifting more than 20 pounds, and Oscar had a 30-pound restriction
removed in April of 1999. These employees could not work on the large water
meter testing due to their lifting restrictions. The commercial and industrial meters run
pounds up to 250 pounds, with some weighing even more. The meter testing equipment for
larger meters weighs over 100 pounds. The residential meters weigh between 5 and 12
On March 25, 1999, Ed St. Peter notified Union President Cecil Garner of a meeting
discuss possible changes in the operation of the meter services division of the Utility. The
management met on April 1, 1999, to discuss the change in hours for testing residential
Union brought up concerns about the contractual hours in that meeting. St. Peter suggested
three Water Meter Maintainers work 8:00 a.m. through 4:30 p.m. Mondays through Fridays,
Water Meter Maintainers work 10:00 a.m. through 6:30 p.m. Tuesdays through Fridays and
to 4:30 p.m. on Saturdays. The proposed schedule would last from April 15 through
1999, through daylight savings time. The Union was especially concerned about Saturday
while acknowledging that the work needed to be done, according to St. Peter. The parties
starting later on Mondays through Fridays to catch people who were not at home. St. Peter
working noon to 8:30 p.m. and 11:00 a.m. through 7:30 p.m. Mondays through Fridays.
On April 12, 1999, St. Peter sent a memo to Garner to notify the Union that Yunker
Oscar would work 11:00 a.m. to 7:30 p.m. Monday through Friday, although the
7:30 p.m. time was
later changed to 7:00 p.m. St. Peter's memo states that the assignments were based on the
Yunker had a permanent weight restriction of 20 pounds, and Oscar was the lowest in
the meter section. Oscar's weight restriction had been lifted on April 7, 1999.
The Grievant, John Yunker, started working for the City in 1973 as a bus driver and
current job is called Water Meter Maintainer II. He started in the Water Department as a
Meter Maintainer I on February 7, 1994. His hours were 7:00 a.m. to 3:30 p.m. on
Wednesdays and Fridays, and 8:00 a.m. to 4:30 p.m. on Tuesdays and Thursdays. Yunker
those same hours between 1994 and 1999. He worked on meter service and first started to
residential meters in April of 1999, when his hours were changed.
According to Yunker, a temporary full-time employee worked from 11:00 a.m. to
and the Union filed a grievance over this position. The position was a non-represented
the Union sought to represent the position. On December 19, 1991, the City posted a
Water Meter Maintainer I with hours of 10:00 a.m. to 6:30 p.m. This position was created
the settlement of the grievance, Yunker testified. Puckett posted for the position. Puckett
position in about 1994, and Young was appointed to the position of Water Meter Maintainer
25, 1994. Young's hours in 1999 were varied, but he received the 7:00 a.m. to 3:30 p.m.
a.m. to 4:30 p.m. hours when Yunker was given late hours in 1999. Young's hours were
10:00 to 6:30 p.m.) when he was testing or reading water meters. Young could read meters
during daylight hours.
Yunker received no overtime between April through October in 1999. Rivera
overtime when Yunker or Oscar were not there and he took over their appointments after
hours up to 7:00 p.m. He usually earned two and one-half or three and one-half hours of
when that happened. Rivera estimated that he worked only two or three times for Yunker
The parties used win-win bargaining to reach many tentative agreements for their
contract. Cecil Garner was the Union President between 1996 and 2000, and he was on the
bargaining committee when the parties agreed to the new language in Section 27.03 on
1997. Garner testified that there was a lot of discussion regarding this section. He
departments or divisions could use the flexible starting time on a case by case basis. Garner
understood that the City could eliminate some overtime and expand hours by this section, and
Union wanted some flexibility for employees. Garner thought that the advantage to the
that Section 27.03 restricted Appendix B, and modifications to Appendix B hours had to be
and could be withdrawn with notice by either party. Upon such notice, hours would revert
Appendix B. Garner believed that under the old contract, the City could change hours for a
division, but not for individuals or a group of employees. Garner never saw the City change
except for a division. Garner works in the Street Division, and understood that if the City
to change the hours for that Division, it would be for the whole Division.
St. Peter also participated in the win-win bargaining sessions for the current contract.
recollection of the discussion around Section 27.03 was that the Union wanted some
have flexible time. Prior to the new language, the City could change hours but there was no
employees to seek to change their hours. St. Peter recalled that the City said the language in
Appendix B about changing hours would remain.
The City's Personnel Director, Charles Grapentine, was involved the negotiations for
current contract and recalled that Section 27.03 was meant to provide flexibility for
have a modified work schedule. Grapentine stated that the City intended to retain its right to
work schedules, and he made that clear during bargaining. Grapentine views Appendix B as
language that gives the City the right to change work schedules without mutual agreement,
Section 27.03 allows for work schedule changes that require a mutual agreement. If there is
mutual agreement, or one side decides to withdraw such agreement, management could
appropriate hours, according to Grapentine. He viewed Section 27.03 as a way for
communicate with management and make changes in hours, and memorialized a practice that
been in effect between employees and supervisors.
During the bargaining, the management team proposed some work schedules for four
days or three 12-hour days. There was a lot of discussion perhaps up to 16 hours of
regarding work schedules. The end result was Section 27.03. Appendix B was discussed
bargaining over work schedules.
Employees and supervisors have changed hours in the past, in line with the language
Appendix B. The City was never required to change the hours for a whole division when
hours under Appendix B. The City could change hours for one employee and has done so in
Grapentine testified that it is up to the managers of departments to set up work schedules.
told them that they may change hours with proper notification. He usually tells managers to
the matter with the Union, and to give employees at least two weeks' notice. Grapentine
of two instances in which the Union President asked if a cement crew could be flexed by an
there was mutual agreement to do so.
There are several employees whose hours differ from those stated in Appendix B. In
all of the examples listed here, the employees were working the different hours before the
contract went into effect and continued to work the different hours after the contract was
In the Municipal Office Building, the Engineering Division of Public Service has hours listed
a.m. to 4:30 p.m. Four of the five Engineering Technicians work from 7:00 a.m. to 3:30
construction projects are being overseen in the summer. After deer season ends, they go
back to the
stated hours. One person in that division works 8:30 a.m. to 5:00 p.m. year round.
The Museum has two employees whose hours vary from the contract's hours of
9:00 a.m. to
5:00 p.m. A maintenance person works 7:30 a.m. to 4:30 p.m., and an office person works
to 5:00 p.m. In Public Service Administration, the contract's hours are 7:30 a.m. to 4:30
secretaries work from 8:00 a.m. to 4:30 p.m., and one works from 7:30 a.m. to 3:50 p.m.
week. A maintenance person works from 8:00 a.m. to 4:30 p.m. About five years
ago, that person
used to work 6:45 a.m. to 3:15 p.m., until a new City administrator started. In the
the hours call for 7:00 a.m. to 3:00 p.m. There are two beach and pool supervisors - one
6:00 a.m. to 2:00 p.m., the other works from noon until 8:00 p.m. when the beaches and
open between April 1st and October 31st.
In the Waste Division, the contract's hours call for 7:00 a.m. to 3:00 p.m. hours,
through Friday. There are two people that work from 9:30 a.m. to 5:00 p.m. in the winter
through Friday, and on Saturday, they work 8:00 a.m. to 3:30 p.m. In the summer, they
10:30 a.m. to 6:00 p.m. Tuesday through Friday, and 8:00 a.m. to 3:30 p.m. on Saturday.
also two equipment operators and one maintenance person who work 6:00 a.m. to 2:00 p.m.
In the Transit Department, the Mechanics in the garage have hours that call for
7:00 a.m. to
3:30 p.m. Monday through Friday. One works from 5:00 a.m. to 1:30 p.m.; one from 6:00
2:30 p.m.; one from 7:00 a.m. to 3:30 p.m. on Tuesday through Saturday; one from 7:00
a.m. to 3:30
p.m. per the contract; and one from 11:00 a.m. to 7:30 p.m. The Tuesday through Saturday
started in 1999 with the arrival of antique streetcars.
In the Police Department, the Counter Clerks' contractually stated hours are Monday
Friday, 7:00 a.m. to 3:30 p.m., 3:30 p.m. to midnight, and 11:00 a.m. to 7:30 p.m., and
through Saturday 7:00 a.m. to 3:30 p.m. Three of them work during those hours. No one
shift to midnight. One works 2:00 p.m. to 10:30 p.m. and this schedule started about three
months ago. The Parking Enforcement Aides' hours are listed as 7:00 a.m. to 3:30 p.m.
works those hours but two of them work from 8:00 a.m. to 4:30 p.m.
In the Water Utility, a Stockroom Clerk's stated hours are 7:00 a.m. to 3:30 p.m.,
through Friday, but she has worked starting times of 6:00, 7:00 and 8:00 a.m. for the last
at least in 1998 before the current contract was signed. An Engineering Technician, who is
Steward, has worked starting times of 6:00 and 7:00 a.m., although the stated contract hours
at 8:00 a.m. She wanted to take an afternoon class during one semester, so St. Peter
allowed her to
start work at 6:00 a.m.
During the 1989-1991 contract, the Appendix B hours for the Water Distribution
them as 7:00 a.m. to 3:30 p.m., Monday through Friday. During that contract, in 1991,
signed his posting for the Water Meter Maintainer I position that called for hours of 10:00
6:30 p.m. and he worked those hours. In the 1992-1994 contract, the hours are listed for
Construction, Water Distribution Plant (Construction and Meter Shop) as 7:00 a.m. to
Monday through Friday. The contract for 1992-1994 was revised, and the hours for the
were listed as 7:00 a.m. to 3:30 p.m. on Monday, Wednesday, and Friday and 8:00 a.m. to
on Tuesday and Thursday. The meter reading and meter test employees hours were stated as
hours dependent on day light hours." Employees were already working that schedule before
contract was revised. St. Peter wanted them to work 8:00 a.m. to 4:30 p.m., but
employees and the
Union objected, and the schedule kept 7:00 a.m. starting times three days a week after the
discussed it. Puckett worked 10:00 a.m. to 6:30 p.m. between 1991 to 1994, and Young
10:00 a.m. to 6:30 p.m. between 1994 and 1997. Young did not work that schedule after
was assigned to read meters, and St. Peter called his schedule an incentive program
the readers can
read whenever they want to read them. The meter readers can work early, late, finish early,
as they finish their routes.
Routes in the Waste Department are selected by seniority but the contract does not
assignment of work schedules by seniority. Management has decided to assign maintenance
operations in the Water Utility without regard to seniority.
THE PARTIES' POSITIONS
The Union points out that this is a complex bargain for a wall-to-wall bargaining unit
City. Negotiations have always been complex with an endless list of issues to be addressed.
summer of 1997, the parties engaged in win-win bargaining, whereby issues
were agreed to only by consensus. The parties reached a tentative agreement, after
passed, and among the changes was a new section at issue here Section 27.03. The
that it never agreed with the City's position that it had the unbridled right to modify
schedules at will, but notes that Section 23.01 required the City to notify the Union of an
change and bargain the impact.
When Section 27.03 was added, the ability of management to force changes in
was restricted to a one-hour swing from the established starting times contained in Appendix
only with the approval of both parties. The new section was tentatively agreed to at a
session held on August 27, 1997. After everyone gave it a thumbs up, Personnel Director
had the tentative agreement typed and it was initialed by the entire cast of characters.
The Union notes that the Grievant signed a posting for Water Meter Maintainer in
hours of 7:00 a.m. to 3:30 p.m. on Mondays, Wednesdays and Fridays, and hours of 8:00
4:30 p.m. on Tuesdays and Thursdays. When the City changed the hours of work for the
in 1999, a less senior employee, Rivera, maintained hours in Appendix B. Also, prior
to 1999, only
one employee classified as a Meter Maintainer was scheduled to work hours that varied from
identified in Appendix B. That came about when the City and the Union reached an
a grievance about a posting to work hours different than those contained in Appendix B.
The City served notice that it wanted to change the working hours of the Meter
citing Section 23.01 of the bargaining agreement. However, the Union states, Section 23.01
that the City needs to notify the Union "prior to effectuating any change where the proposed
would introduce new job classifications, or affect the wages of employees." That section of
contract does not contemplate the unilateral right of the City to change working hours.
The Union argues that the City violated Article XXVI Maintenance of
states: "The employer agrees that all conditions of employment in his/her individual
to wages, hours of work, overtime differentials, and general working conditions shall be
at not less than the standards in effect at the time of the signing of this agreement." At the
the contract signing, the hours of work for the Grievant were those stated in Appendix B.
change in his working hours thus violates Article XXVI.
When the Grievant's hours were changed, he continued to receive straight time pay.
XVII Overtime Pay, at Section 17.02, states that hours outside of an employee's
regular shift are
to be paid at time and one-half. Article XXVI states that overtime differentials must be
By not compensating the Grievant at an overtime rate for hours of work outside of his
schedule, the City violated Section 17.02 of the contract.
The Union asserts that the City failed to show that another employee could have
hours. Yunker's hours were changed outside of considerations of seniority and outside of the
that Young's hours remained constant, even though Young's job called for the possibility of
adjustments in work hours. When Yunker's hours were changed, those hours varied from
hours of the position at the time he posted for it.
The Union contends that the City effectively laid him off out of seniority, and he had
to bump any employee junior to him in seniority with the understanding he would have to be
perform the duties of the person he bumped. He was not given that opportunity, pursuant to
4.07. The job in the Meter Maintainer classification that Yunker held assuming the
modified outside the parameters in the newly negotiated Section 27.03 would have to
None of that happened.
The Union recalls the euphoria of the agreement reached in the summer of 1997, the
sigh of relief to limit the rights of management by adding Section 27.03, the sense of
Now the City says that Section 27.03 really doesn't mean anything. Say it ain't so, the
The City asserts that Appendix B of the bargaining agreement clearly gives it the
unilaterally change the work schedules of employees in the bargaining unit. There is no
in the provision that states: "It is mutually understood that the above schedules are those in
March 25, 1999 and that they are subject to change upon proper notification being given by
The only restriction on the City is the proper notice, and the City gave more than two weeks
which has been considered proper in the past. Section 2.01 provides that the powers or
specifically abridged, delegated or modified by the agreement are retained by the City, and
powers include those in other sections of the agreement. Appendix B provides that the City
power and authority to unilaterally change work hours of bargaining unit employees as long
notification is given. Section 2.04 also provides that the City has the right to determine
schedules of work. The City's need to change hours to gain access to residences to complete
water meters is reasonable. Section 5.09 provides that nothing restricts the right of the City
duties within a classification as the needs of the service requires. The City was well within
in determining who should perform the testing of residential water meters.
The City notes that it has often in the past unilaterally changed the work schedules of
bargaining unit employees from those listed in Appendix B. Both St. Peter and Grapentine
about the many times and employees whose schedules were changed. When Puckett worked
a.m. through 6:30 p.m., the contracts did not list that work schedule. The City has used the
in Appendix B often in the past, and this situation was no different.
While the Union claims that the addition of Section 27.03 rescinded the City's ability
Appendix B to unilaterally change work schedules, the new section provides for flexible
varying not more than one hour from the times listed in Appendix B. The City contends that
27.03 did not rescind the final statement of Appendix B and that statement remained in the
bargaining agreement. If the parties intended to rescind the final statement of Appendix B,
would have removed it. Grapentine testified that the purpose of adding Section 27.03 was to
formalize a practice which provided employees the ability to propose and get a change in
times. But Grapentine never agreed to give up the City's right to unilaterally change work
The Union did not challenge his testimony.
The City further asserts that the contract does not require it to consider seniority
changing hours of work. Section 4.06 lists seniority to be considered for matters involving
or decrease of forces, layoffs, or promotions. Section 4.07 outlines the role of seniority in
bumping and recalls. Section 4.10 provides for super-seniority in involuntary transfers and
Sections 5.03, 5.04 and 5.07 provide for using seniority to fill vacancies. Section 8.04 lists
consideration of seniority in returning from leave for public office. Section 11.04 specifies
of seniority in vacation selections. The City may use seniority in assigning employees to a
scheduled that differs from those listed in Appendix B, as St. Peter did in Oscar's
case, but it is not
required to. St. Peter assigned the Grievant to the 11:00 a.m. to 7:00 p.m. schedule based
medical restrictions that prevented him from being assigned to work on anything but
There was no violation of Section 23.01, the City notes, because this section does not
the change but merely requires prior notification, and in certain cases, discussion prior to
implementation. The contract does not list a specific time period for giving notice and the
considered two weeks notice to be sufficient in changing hours of work. The Union has not
the issue of the sufficiency of the notice in this proceeding.
The City argues that it did not violate Section 26.01, the Maintenance of Standards
Previous arbitrators have noted that there are specific contract sections and language that
over the language of Section 26.01. In this case, the contract contains specific provisions in
Appendix B giving the City the power and authority to unilaterally change work hours, as
specific provisions in Section 5.09 giving it the power and authority to assign duties within
Meter Maintainer II job classification. These specific contract provisions control over the
provisions of Section 26.01. Even if Section 26.01 applied, the long and consistent past
the City making unilateral changes in hours would constitute general working conditions to
In conclusion, the City points out that it had a legitimate business reason for making
change in hours as well as a legitimate business reason for assigning the Grievant to those
actions were proper and did not violate the labor contract.
In Reply the Union
The Union takes issue with the City's contention that it changed the Grievant's hours
facilitate both operational needs as well as the Grievant's medical restrictions. There are five
employees in the department. Commercial as well as residential meters are in constant need
and reading. To claim that only the Grievant could be assigned to the newly created
to service residential needs is absurd. Even with his restrictions, the Grievant had been
commercial meters in the past, when he would work with another employee. The same
could have been extended to him in 1999.
The Union notes that St. Peter acknowledged the principle of seniority in the
work shifts. The City cites the seniority dates of the Meter Maintainers on the basis of
seniority, but nowhere in the labor agreement is the principle of departmental seniority
The true seniority dates put Yunker in the middle of the department. Also, as previously
position held by Young called for hours that could vary from the hours listed in Appendix B
upon a grievance settlement. The hours of Rivera, junior to Yunker, only changed in 1999
Yunker's absence, even though Yunker had seniority rights over him.
The City cites Section 2.01 as justifying its actions. The crux of Section 2.01 is to
rights of management where those rights have not been specifically abridged, delegated or
by other provisions of the agreement. The newly negotiated Section 27.03 effectively
rights as they relate to work hours. While Section 5.09 talks about assignment of
duties within a
classification, it does not contemplate the right of the City to change hours of work which
the seniority of affected employees.
The Union disputes the relevance of the times where hours of employees were
modified in the
past. Whatever happened prior to the 1998-2000 agreement occurred before
Section 27.03 was in
place. Also, those modifications after 1998 varied by one hour from the hours listed in
in accordance with Section 27.03.
The Union takes issue with the City's claim that the Union did not refute the City's
that it could still change hours of work even with the newly negotiated Section 27.03.
President Garner testified that there were no questions advanced in the bargaining for the
agreement by the City as to the effect of Section 27.03 as it related to Appendix B. Garner
that the Union never agreed that Appendix B superceded Section 27.03, and it was his
that Section 27.03 restricted the language of both Appendix B and Section 2.01.
When a job is posted in accordance with Section 5.01, reference is made to Appendix
well as the table of organization. Part of this reference is the hours of work found in
It is with that understanding that employees post for vacancies. If it were found
that the City had the right to eliminate Yunker's job, outside of seniority considerations
violation of Section 4.06, the Union maintains he was laid off and had the right to exercise
rights per the agreement. The newly created position forced upon Yunker would then need
posted. Arbitrator Gratz, in Muskego-Norway School District, Award No. 4447
(Gratz, 8-13-92), noted that the District's decision to reschedule custodial work to second or
third shifts when that
work was being performed on the first shift constituted the creation of newly created
the meaning of the contract, which required posting of transfer opportunities.
In Reply the City
The City, while amused at the Union's staff representative's forthright critique of the
bargaining process, maintains that by leaving the last provision of Appendix B in the
contract, the City
retained the right it had to unilaterally change the work schedules of employees. If you want
change contract language, you've got to throw out the old before you bring in the new. If
Section 27.03 were intended to do what the Union now claims, the Union would have
the last provision of Appendix B had to be eliminated. The City acknowledges that the staff
representative is an experienced and extremely competent negotiator who understands the
process very well, whether it is win-win or traditional.
While the Union claims it never thought that the City had the unbridled right to
employees' work schedules at will, the City has had this unilateral right and exercised it
often in the
past without objection from the Union. Moreover, Section 23.01 does not require the City to
the impact of anticipated changes. That section merely requires a discussion to take place.
The Union stated that when Yunker signed a posting to become a Water Meter
in 1994, the hours were as listed in Appendix B. The 1992-1994 contract contained the
that the listed work schedules were subject to change upon proper notification given by the
posting that Yunker signed was put up on November 17, 1993, and that 1992-1994 contract
existence, which contained the 7:00 a.m. to 3:30 p.m. Monday through Friday work
City notes that there were no documents substantiating the alleged grievance settlement
in 1991 whereby the Union demanded that a job be posted internally. The City had the right
change work schedules in 1991, both before and after the alleged grievance and alleged
agreement. Even if there were such an agreement, which the City denies, it has no
relevance to this
The City takes issue with the Union's claim that Section 23.01 does not contemplate
unilateral right of the City to change working hours. The work schedule change is a change
methods of operation which affects employees covered by the agreement. Even though
discussion of the change is not required under this section of the contract, the City had
discussion with the Union over its proposed changes in work schedules. The City made
its original plan after getting the Union's input. Moreover, Yunker was not entitled to
under Section 17.02, as claimed by the Union, since he was not working outside his regular
The City disputes the Union's contention that Yunker could have performed his job
under the hours listed in Appendix B. The City tried to test residential water meters during
hours but had an 85 percent failure ratio because people were not at home during those
alternate work schedule was needed to test 3,600 meters by the end of 1999. Since Yunker's
restrictions limited him to working on residential meters, he could not have kept his old
The City objects to the Union's argument that Young should have been given the new
Yunker has less bargaining unit seniority as well as less departmental seniority than Young.
contract does not require consideration of seniority in making changes of work schedules.
Yunker was not laid off the City merely changed his work schedule. There is no
requirement in the
contract that the City post a revised work schedule.
Portions of Section 27.03 appear to be in conflict with the last sentence of Appendix
is one reason that contracts should be read as a whole. Arbitrators frequently apply the
the agreement must be construed as a whole. As stated in Elkouri & Elkouri,
Works, 5th Edition, p. 492-3 (1997), to ascertain the intent of the
parties, the disputed portions must
be read in light of the entire agreement. The City's position on this issue is preferred for the
Significantly, the parties never deleted the language in Appendix B that had long
City the unilateral right to change hours upon proper notice. Also significant the
City told the
Union when bargaining over Section 27.03 that it intended the language in Appendix B to
made it clear that it retained the right to change hours. Grapentine's testimony on this point
undisputed. And the City is correct when it states that if the parties had agreed that Section
would restrict the City's right to change hours under Appendix B, they would have removed
language of Appendix B that gives the City the right to change hours with proper notice.
parties are competent and experienced negotiators, and while their experience with win-win
bargaining may have been a new experience, they knew their contract language well and
it has been used and interpreted.
Section 27.03 would not make sense if it were given the interpretation urged by the
in light of the language of Appendix B. Under Appendix B, the City has the right to change
with proper notice. If Section 27.03 allowed employees and supervisors to
change schedules by one hour but then an employee could nullify that change
how could that
language co-exist with the City's right to change schedules? The limitation of a one hour
from the schedule of hours listed in Appendix B is also in seeming conflict with the last
Appendix B which gives the City the right to change the work schedules. In order to give
both Section 27.03 and Appendix B, the City's interpretation that Section 27.03
codified the practice of employees and supervisors changing schedules by mutual agreement
more sense. It also is consistent with the record of hours being worked by other employees,
bargaining history and the testimony that is undisputed.
Additionally, the City is correct when it points out that in Section 2.04, it has the
determine reasonable schedules of work. Under the facts presented in this case, the schedule
reasonable to accomplish the work that needed to be done. The City had tried to do the
meter testing on the schedule of 7:00 a.m. to 3:30 p.m. Mondays, Wednesdays and Fridays
a.m. to 4:30 p.m. on Tuesdays and Thursdays. However, the fact that it had an 85 percent
reaching residents gave it the need to change schedules to reach residents, who were asking
afternoon and Saturday appointments. Moreover, the City's assignment of Yunker to
water meter testing was reasonable in light of his medical restrictions on lifting. While the
asserts that he could have been assigned to commercial water meter testing and work with
employee, the weights of commercial water meters would have been too heavy in some
accommodate the Grievant's restriction even with two employees. The assignment is also
with the language in Section 5.09, which states:
Nothing contained herein shall restrict the right of the City to
assign duties within a particular
classification as the needs of the service requires.
The Union has argued that the City failed to consider seniority in assigning the
the later hours. The labor agreement does not require consideration of seniority in
employee works which hours. The contract, in Section 4.06, states:
The Employer recognizes the principle of seniority and the Union
recognizes the need of
maintaining an efficient work force. In all matters involving increase or decrease of forces,
or promotions, the seniority of the employees involved shall be given primary consideration.
ability and efficiency shall be considered only where they substantially outweigh
length of service.
The City's change in hours did not involve an increase or
decrease in the work force, nor did
it involve a layoff or promotion. While the Union argues that the Grievant should be
off and entitled to bumping rights under Section 4.07, there was no layoff where there was
separation from employment.
Another theory the change in hours created a vacancy and required a posting.
defines a vacancy "as an opening in a specific classification . . ." There was no opening in a
classification. No position was vacated by any employee. No new position was created by
The City changed hours temporarily on current positions, only during daylight savings time.
The Union's position that the Grievant's seniority is based on his service with the
than in a department is preferred under Section 4.01, which refers to length of continuous
without further limitation.
The Maintenance of Standards clause does not control in this case. As previously
agreement must be construed as a whole. Article XXVI, the Maintenance of Standards
be read in conjunction with Appendix B. When one notes the specific right of the City in
B to change schedules with proper notice, one must give meaning to that clause so as to not
it null and void. See City of Kenosha, Case 128, No. 39005, MA-4670 (Schiavoni,
Further, the specific language will be given precedence over general language where two
clauses bear on the same subject. See Elkouri & Elkouri,supra, p. 498-9. Appendix B is specific
language that gives the City the right to change schedules. Article XXVI should not be
in a manner that would nullify that right.
The overtime provisions in the bargaining agreement would not apply to the Grievant
case. Section 17.02 states:
Employees called upon to perform any service prior to or
following his/her regular eight (8) hour
shift, and on Saturdays, shall be compensated for at the rate of one and one-half (1-1/2)
employee's regular rate of pay.
The Union would ask that the Grievant be paid for all hours worked after the 3:30
p.m. or 4:30 p.m.
shifts ended. However, the Grievant would not have put in eight hours by then, and Section
calls for overtime outside of an eight hour shift. The Grievant was re-assigned regular hours
a.m. to 7:00 p.m. Monday through Friday between April 26 and October 31, 1999. He was
working any overtime either prior to or following his regular eight hour shift. The
deem the Grievant's old hours to be his "regular" hours for purposes of Section 17.02
coming into conflict with the language in Appendix B that allows the City to change hours.
There is no violation of Section 23.01. Arguably, the change in hours falls within
as a "change in the methods of operation which may affect employees." However, the City
the proposed changes with the Union before implementing them as required by Section
notice to the Union was not short, as in a prior case, and the parties had time to make
to the proposed changes and did so.
For all the reasons stated above, I find no violation of the contract.
The grievance is denied.
Dated at Elkhorn, Wisconsin this 1st day of November, 2000.
Karen J. Mawhinney, Arbitrator