BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CHIPPEWA COUNTY HIGHWAY DEPARTMENT
LOCAL 736, AFSCME, AFL-CIO
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney Victoria Seltun,
on behalf of the County.
At all times pertinent hereto, the Chippewa County Highway Department Employees
736, AFSCME, (herein the Union) and Chippewa County (herein the County) were parties to
collective bargaining agreement covering the period January 1, 1997, to December 31,
providing for binding arbitration of certain disputes between the parties. On March 16,
Union filed a request with the Wisconsin Employment Relations Commission (WERC) to
grievance arbitration on the County's failure to call in the most senior employees to plow
December 19, 1999, and requested the appointment of a member of the WERC staff to
issue. The undersigned was designated to hear the dispute. The parties waived any
objections to arbitration and a hearing was conducted on June 20, 2000. The proceeding
transcribed and the parties filed briefs on August 4, 2000.
The parties stipulated to the following framing of the issue:
Did the Employer violate the contract and/or past practice
it failed to call in two more
senior employees on overtime to plow snow on December 19, 1999?
If so, what is the appropriate remedy?
ARTICLE 2 MANAGEMENT RIGHTS
The County possesses the sole right to
determine the methods, means, and personnel by which
the County operations are to be conducted. The rights include, but are not limited to, the
. . .
to hire, promote, schedule and
. . .
to maintain efficiency of County
. . .
I. to determine the methods and
means in personnel by which County operations are to be
. . .
. . .
Section 2. Subject
Matter. Only one subject matter shall be covered in any one grievance and
shall be filed on forms provided by the County. A written grievance shall contain the name
position of the grievant, a clear and concise statement of the grievance, the issue involved,
sought, the date the incident or violation took place, the specific section of the Agreement
to have been violated and the signature of the grievant and the date.
. . .
ARTICLE 8 SENIORITY AND JOB
Section 1. Seniority.
Seniority shall commence on the last date of hire in the Department. It shall
be based upon actual length of continuous service, including approved paid leaves of
Employees on unpaid leaves shall retain their seniority prior to the date of leaves, and shall
seniority while on leave except as provided for in Article 5 of this agreement; employees on
shall retain seniority while on layoff, however, no benefits shall accrue to employees while
status or unpaid leave (unless grandfathered by virtue of the voluntary layoff sideletter).
Seniority will terminate upon any of the
Discharge for just cause or
voluntary termination of employment.
Failure to report to work within 21
days after receiving adequate notice of being recalled from layoff.
Layoff of employment for a
continuous period of more than one (1) year.
Failure to return to work on
completion of leave of absence following adequate notice.
Adequate notice is defined as certified mail
to the last known address as reported by the
employee. It shall be the employee's responsibility to keep the County apprised of their
In the event an employee is given a
temporary layoff, i.e., one which is known in advance to be
less than six months, the following conditions shall apply (for all except 3 grandfathered
The employee shall continue to be
treated as an active employee for health insurance purposes for
the remainder of that month and the next two months.
Seniority shall continue to accrue.
There shall be no accrual of
. . .
ARTICLE 16 HOURS OF
WORK AND OVERTIME
. . .
Section 5. Overtime.
Overtime shall be paid at time and one-half (1 ½) the regular rates for work
performed in excess of eight (8) hours in a work day or Saturdays, Sundays and holidays.
. . .
The Chippewa County Highway Department maintains garages throughout the
which are stationed department trucks and equipment. Department employees are also
the various garages. In the event of snowstorms, the State and County highways within the
are assigned to certain department employees to be plowed. Employees who do not have
routes are available to be called in situations where the assigned employees are unavailable or
additional help is needed.
The Grievant, Jim Morning, is stationed at the Cornell garage. In the event of snow,
an assigned route, which includes county highways R, ZZ, Z and part of County Highway E.
December 19, 1999, a snowstorm occurred in Chippewa County, moving West to East and
Highway Department employees were called out to plow their assigned routes as the storm
their areas. On that day, the Grievant was not available to plow his section because his truck
being used by another employee. He was available,however, to be
called as an additional employee,
if needed, in which event he would have used an unassigned vehicle from another garage.
some assigned employees were unavailable, Patrol Superintendent Louis Revoir began calling
relief employees. The Grievant was not called, but Curt Loew and Dale Konechney, both of
have less seniority than the Grievant, were called. When the Grievant learned that Loew and
Konechney had been called, he confronted Revoir and complained that he was entitled to be
before Loew and Konechney, but obtained no satisfaction. He and Union President Matt
then met with Revoir and Highway Commissioner Bruce Stelzner, but again were unable to
satisfactorily resolve the dispute.
On December 28, the Union filed a grievance on behalf of Morning and a number of
employees who had not been called on December 19. Later, the grievance was withdrawn as
other employees besides Morning. The County denied the grievance on the grounds that it
merit and that it was procedurally flawed and the matter proceeded to arbitration.
POSITIONS OF THE PARTIES
There is no merit in the County's procedural objections. The County alleges that the
grievance is unclear as to which contract sections were allegedly violated, in that the
Articles 8-16 and Sections 1-5. A review of the contract shows that Article 8, Section 1,
seniority and Article 16, Section 5, deals with overtime, the very issues that arise in this
Further, the Union sent a letter to the Employer shortly after the grievance was filed
provisions the grievance referred to (Union Ex. #1).
The County also objected to the fact that the grievance lists several grievants. In
one grievant, the Union, seeking relief for several employees, but growing out of one
December 19 snowstorm. Initially, the Union believed several employees to have been
named them all because there was little time to do an investigation before the deadline for
grievance passed. Later, the names of all but one employee were withdrawn, but this should
considered a procedural flaw.
On the merits, the Union must prevail. For many years the County has used two
for snowplowing. The Section list (Union Ex. #2) lists employees who are assigned to patrol
roadways as their normal duty and this is the priority list for calling out employees for
on location, not seniority. The second list is the "Extras" list (Union Ex. #3). It is based on
not location and is to be used when there is a need to fill a Section route because the
assigned Section employee is unavailable.
The Grievant is assigned a route on the Section list, but did not have access to his
so was not called to plow his section. Nevertheless, under the existing practice he should
called off the "Extras" list to fill in for another employee before Curt Loew and Dale
are beneath him in seniority.
This case is based on the existence of a past practice which is clear, consistent,
and mutually accepted. In the first place, the practice is not complicated. All Union
testified that theyunderstood the foregoing to be the accepted
procedure, including Randy Michal
and Jerry Asher, who actually assist with the call-in procedure at times. They further
the procedure has been in place throughout their employment with the County, which in one
over 22 years. As to mutual acceptability, Union witnesses testified that the practice was
followed by management and employees alike. The contrary testimony of Bruce Stelzner and
Revoir is not credible. It is not possible that management did not know of the practice or of
existence of the "Extras" list, since the list was, in fact, produced by management.
Employer Exhibit 3 is the list that Revoir testified he uses to call-in employees for
An examination of the document reveals that it is, in effect, the Section list, but instead of
"Extras" list it has attached to it a different seniority list, which only contains the names of
not listed in the Section list.
The County denied the grievance because it was not a violation of the contract
the Union maintains that this is a past practice case. The County's response does not deny
existence of the practice and, in fact, in a subsequent meeting with Union representatives,
admitted to having made a mistake. His later denial of knowledge of the practice, or of
the statement, cannot be believed. Further, the County's rationale that employees are called
a basis of proximity does not bear close scrutiny, because the Grievant lives much closer to
Bloomer garage than the two junior employees who were called in instead of him. In sum,
County violated a clear and long-standing past practice by failing to call in the Grievant and
grievance should be sustained.
The grievance is procedurally defective. Article 4, Section 2, of the contract requires
grievance be limited to one subject and identify with specificity both the grievant and the
section(s) alleged to be violated. As drafted, the grievance here arguably alleges violations
Sections 1-5 of Articles 8-16, which is how the Highway Commissioner interpreted it.
grievance lists seven individual grievants, although the contract allows for only one, and
only two employees could possibly be aggrieved since only two relief employees were called
the day in question. Where such defects exist, the Arbitrator may dismiss the grievance ,
do so here Monroe Mfg., Inc., 107 LA 877, 879 (Stephens, 1996).
Substantively, the contract does not require that overtime snowplowing work be
according to seniority. Under the management rights clause, the County retains the sole
schedule and assign employees, subject only to restrictions contained in the contract. There
Article 8 only addresses the effect of seniority in layoff and posting situations and makes no
to plowing. The only reference to plowing in the contract is contained in Article 11
Sanding and Plowing, which again makes no reference to seniority. Article 8, dealing with
specifies that overtime shall be paid at time and a half, but also makes no reference to
There is, therefore, no contractual support for the grievance.
Arbitral authority supports the County's right to assign employees to specific tasks
upon management rights. Langlade County, Case 80, No. 56614, MA-10352 (Hempe,
Further, where there is no provision to the contrary, the County retains the right to allocate
and may determine in its discretion whether work shall be performed on an overtime basis.
Waupaca County (Highway), Case 103, No. 55422, MA-10010 (Crowley, 7/3/98). In this
the County called in extra employees based upon location. The plowing to be done was in
Bloomer area, therefore, the employees called were those assigned to the Bloomer garage.
Employees at the Cornell garage were then available to be called when the storm moved into
Cornell area. This was a rational scheme and was within the County's authority under the
management rights clause.
The Union's past practice argument also fails. In order for a binding practice to
exist, it must
be unequivocal, clearly enunciated and acted upon and readily ascertainable for a reasonable
of time as a fixed and established practice accepted by both parties. According to the Union,
existing practice is that extra employees are called in, as needed, based upon unit wide
set forth in Union Exhibit #3. Highway Commissioner Stelzner and Patrol Superintendent
denied knowledge of such a practice. Further, Stelzner testified to never having seen the
list before and Revoir, while admitting familiarity with the list, denied ever using it for
plowing work. Rather, Revoir relies on the list appended to County Exhibit #3.
The record reveals that seven different persons have been involved in assigning extra
work, but that there is no consistently followed method for assigning the work among them.
and Revoir testified that they call in employees based upon location. Others use the list
the Section list, but not necessarily in order of seniority. Union witnesses testified that in
experience, call-ins were based on bargaining unit seniority. In short, there is no uniformity
method. There is no binding practice without acceptance by both parties, the Union's
of an existing practice notwithstanding. Conflicting evidence and testimony do not support
existence of a binding practice. The Union asserts that Union Exhibit #3 is the approved
The County maintains that County Exhibit #3 is a guideline for assigning plowing
upon location. The Union has failed to meet its burden of establishing that its procedure is
accepted one, therefore, the grievance should be denied.
The criteria for properly drafting a grievance are set forth in Article 4, Section 2, of
contract. The County alleges the Union did not comply with these requirements in a number
thus warranting dismissal of the grievance. Specifically, the County maintains that the
not limited to one subject matter and is vague as to the particular contract provisions at issue.
First, as to subject matter, I find that, in fact, the grievance is addressed to one
of an alleged failure to properly offer overtime during the snow storm of December 19,
fact that several employees were potentially impacted by this action does not automatically
that each individual employee file a separate grievance. In fact, the grievance form itself,
promulgated by the County, contemplates the possibility of multiple grievants. In this case,
grievance was initially brought by the Union on behalf of seven employees, who are all
the grievance. Under the terms of the contract, there is nothing inherently improper with
As to the proper identification of the contract provision in question, it is true that the
in which the grievance was drafted could, on its face, be viewed as ambiguous and somewhat
confusing because it arguably alleges violations of Sections 1 through 5 of each of Articles 8
16. This is because the Union officer who drafted the grievance utilized hyphens, which
denote inclusion of all the intervening provisions, rather than commas, which usually are
limiting the subject matter to just the specifically identified provisions.
Initially, I would note that the form itself is somewhat confusing in that it calls for an
enumeration of all applicable Articles on oneline, and then all
applicable Sections within those
Articles on another. In any grievance involving multiple Sections of multiple Articles there
would be potential for confusion using this format and it would be difficult to draft the
such a way as to eliminate the possibility of incorrect inferences regarding the alleged
According to the contract, however, this form is to be promulgated by the County. If it
format it has adopted to be confusing, therefore, it has the discretion to change it.
Going beyond that, however, it is also necessary to approach this process with a
common sense. County Exhibit #1 is a compilation of all the potentially involved Articles,
which do not even contain 5 Sections. They are as follows: Article 8 Seniority and
Job Posting (6
Sections), Article 9 Payroll (5 Sections), Article 10 Work Curtailment (no
Sections), Article 11
Sanding, Salting and Plowing (no Sections), Article 12 Union Business (4
Sections), Article 13
Safety (3 Sections), Article 14 Bulletin Board (no Sections), Article 15
Bargaining Unit Work (no Sections) and Article 16 Hours of Work and
Overtime (9 Sections). A
cursory review of these provisions reveals that most of them have nothing to do with the
contained in the grievance. Even Article 11, which deals with sanding, salting and plowing
addresses how many employees may be in a truck at a given time. The language of the
itself states, "Management failed to call in employees for overtime to plow snow according
seniority and past practice." One would expect, therefore, the grievance to refer to those
in the contract which deal with seniority (Article 8, Section 1) and overtime (Article 16,
Apparently there was communication between the parties regarding this
because in his February 18, 2000 letter moving the grievance to Step 3, Union
specifically enumerated Article 8, Section 1, and Article 16, Section 5, as the
provisions cited in the
grievance, thus removing any remaining confusion. Taken as a whole, therefore, while the
of the grievance may not have been artful, I find that it was not done in bad faith, nor did it
the County in its ability to address the grievance, therefore, I do not find grounds for
grievance on that basis.
It should be noted at the outset that the contract does not mandate the offering of
snowplowing work on the basis of seniority. Article 8, Section 1, cited in the grievance,
acknowledges the principle of seniority, but only directly in the context of job posting and
situations. No specific reference to the applicability of seniority with respect to the
overtime, snowplowing work, or the like is made. Likewise, Article 16, Section 5,
which is addressed
to the subject of overtime, only states that overtime will be paid at the rate of time and
work in excess of eight hours per day or for weekend work, but no reference as to how
to be assigned, whether by seniority or otherwise, is made. As previously noted, Article 11,
addresses sanding, salting and snowplowing makes no reference to how this work is to be
but only covers how many employees are to be assigned per truck.
The Management Rights clause, contained in Article 1, sets forth the powers of
to the extent not otherwise limited by the contract or external law. Contained therein are
schedule and assign employees, maintain efficiency of County operations and determine the
and personnel by which County operations are to be conducted. Inasmuch as the contract
otherwise limited management's authority to control the assignment of overtime, therefore,
authority is contained within management's rights, unless management has otherwise
or all of that authority. Graham Brothers, Inc., 16 LA 83, 85 (Cheney, 1951).
The Union, however, contends that there is an issue of past practice. Specifically, it
the existence of a longstanding practice regarding the assigning of overtime snowplowing
which is to first call in the employees on the Section list to plow their assigned routes. If
on the Section list are unavailable, or if more drivers are needed, employees otherwise not
called in are to be called off the unit seniority list (Union Ex. #3). The County denies this
and asserts that there is no fixed practice for assigning overtime snowplowing work beyond
Section list. When such occasions arise each supervisor has their own method of assigning
but generally, in addition to seniority, location is considered, so that employees are only
plow routes near their regular garage assignments.
The testimony of the Union President, Mathew Hartman, was to the effect that the
seniority list has been the secondary call-in list for at least 20 years. He further testified that
attended the meeting with management where the grievance was discussed and that at that
Revoir admitted to having made a mistake in failing to call the Grievant on the day in
testimony was supported by that of Archie Mooney, the Union Vice-President, and the
himself, both of whom also attended the meeting with Revoir and Stelzner.
Department employees Randall Michal and Jerry Asher also testified. They both
that the Extras list based upon unit seniority was to be used after all employees on the
Section list had
been called out. They stated, however, that on occasion management would deviate from the
list and call employees out of turn, either due to urgency and proximity or because a more
employee was overworked.
Highway Commissioner Stelzner testified that at various times any of the Department
supervisors could call-in employees for plowing work and that there is no set procedure for
is to be done. On occasion, when no management personnel are available, call-ins could be
bargaining unit employees, as well. In any event, according to Stelzner, seniority is never
deciding factor in calling in relief help. The size of the County and location of the
that those closest to the storm areas should be called because it is more efficient. Ultimately,
however, who should be called is within the discretion of the individual supervisors.
Patrol Superintendent Revoir testified that proximity is a more appropriate criterion
in relief plowing help than seniority. He stated that on December 19, he called in the
the Section list and then instructed John Christianson, a bargaining unit employee, to call in
help. He has no recollection of admitting a mistake in not calling the Grievant and avers
he wasn't the one who called in the relief help, it is unlikely he would make such an
Revoir's testimony is supported by County Exhibit #3, which is the call-in schedule
on the day in question, including both the Section list and an attached Extras list comprised
bargaining unit employees not otherwise assigned to a section. The exhibit reveals that two
Section list employees stationed at the Bloomer garage, Matt Hartman and Steve Schimmel,
unavailable and that Christianson then contacted Curt Loew and Dave Konechney to fill the
Loew and Konechney have less seniority than the Grievant, but are assigned to the
Chippewa-Bloomer garages, whereas the Grievant is assigned to the Cornell garage.
Where an issue of past practice has been raised, in order to be binding ". . . the
be 1) unequivocal; 2) clearly enunciated and acted upon; 3) readily ascertainable over a
period of time as a fixed, and established practice accepted by the parties." City of
Case 18 No. 55310 MA-9976 (Meier, 4/23/98), quoting Celanese Corp. of America, 24 LA
174 (Justin, 1954).
In this case, the evidence is conflicting as to exactly what, if any, standard practice
Clearly, there is no uniform understanding among the witnesses on this point. Both sides
the Section list is the primary method for calling in employees to plow snow, but there the
understanding ends. The Union witnesses argue that relief workers have historically been
order off the unit seniority list. Management witnesses maintain, however, that proximity
assignment are the primary factors in calling relief workers, not seniority.
County Exhibit #3, which I give significant weight, suggests that the actual practice
a hybrid. This document has the appearance of a standard call-in form used by the County
call-in situations arise. It first contains the Section list, which is consistent with the
testimony of all
witnesses. Attached thereto is a modified unit seniority list, which lists all non-assigned
unit employees in order of seniority. Significantly, however, it also lists the regular garage
assignments of the employees. The testimony of the County witnesses was credible in that it
logical sense to call the relief employees who are closest to the need. Were seniority the
criterion, if a storm arose on the West End of the County and the most senior employees
on the East End, they would be called regardless. By the time the storm reached the East
Side of the
County, less senior employees, who might be stationed on the West Side would be called.
clearly be inefficient and the exhibit indicates, therefore, that location is a key consideration.
Nevertheless, the employees are also listed in order of seniority, and some are listed as being
multiple garages. This indicates that within zones the employees are to be called in
order of seniority,
which comports with the testimony of the Union witnesses. Thus, if need for a relief driver
the Bloomer area, the drivers assigned to the Bloomer shop would be called off the Extras
order of seniority. That would be consistent with the evidence and appears to be what was
Unfortunately, neither of the parties agree that this is the existing practice. The
only increased, furthermore, by the fact that on the day in question the relief drivers were
called in off the modified list by a bargaining unit employee, which would appear to
Union's position. That being the case, it fails the element of being an established practice
accepted by the parties. I cannot, therefore, find the existence of a binding past practice
be dispositive of this case. Even were I to do so, however, in my view it would not avail
here. In the first place, because he is on the Section list, his name does not appear on the
Extras list, because the underlying assumption is that all available employees on the Section
already been called by the time the Extras list is employed. It is anomalous that on that
the Grievant was unavailable to plow his section because his truck was out of service, but
could have filled in for another driver. In the second place, the Grievant is assigned to the
garage and the relief workers were needed in the Bloomer area, and thus were called out of
Bloomer garage. In my view of the system that is in place, therefore, even were the
on the Extras list, he would not have been entitled to precedence over the employees who
Based upon the foregoing and the record as a whole, the undersigned enters the
The County did not violate the collective bargaining agreement or past practice by
call-in the Grievant to plow snow on December 19, 1999. The grievance is, therefore,
Dated at Eau Claire, Wisconsin, this 30th day of November, 2000.
John R. Emery, Arbitrator