BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KENOSHA COUNTY INSTITUTIONS
LOCAL 1392, AMERICAN FEDERATION OF STATE,
AND MUNCIPAL EMPLOYEES, AFL-CIO
KENOSHA COUNTY (BROOKSIDE CARE
(Grievance #00-1392-001 -- Laundry Job Posting)
Mr. John Maglio, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box 624,
Racine, WI 53401-0624, appearing on behalf of the Union.
Mr. Frank Volpintesta, Corporation Counsel, 912 - 56th Street
Kenosha, WI 53142, appearing on
behalf of the County.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned, Marshall L. Gratz, as arbitrator to hear and decide a dispute
the above-noted grievance under the parties' 1998-2000 Agreement (Agreement).
Pursuant to notice, the grievance dispute was heard at the County Administration
Kenosha, Wisconsin, on November 13, 2000. The proceedings were not transcribed;
parties authorized the Arbitrator to maintain an audio tape recording of the evidence and
for the Arbitrator's exclusive use in an award preparation. The parties' closing arguments
presented at the hearing.
At the hearing, the parties agreed to the statement of ISSUES 1 and 3, below, and
the Arbitrator should frame ISSUE 2 based on the parties' presentations at the hearing.
the ISSUES for determination in this matter are as follows:
1. Did the County violate the Agreement when it failed to
maintain a 40-hour position in its
2. Is the Union entitled to a remedy for
the County's failure to offer its laundry department
employees an opportunity to select work assignments by seniority following the resignation
3. If either are so, what is the appropriate
ARTICLE I - RECOGNITION
. . .
Section 1.2. Management Rights. Except as
otherwise provided in this Agreement, the
County retains all the normal rights and functions of management and those that it has by
Without limiting the generality of the foregoing, this includes the right to hire, promote,
demote or suspend or otherwise discharge or discipline for proper cause; the right to decide
to be done and location of the work; to contract for work, services or materials; to schedule
work; to establish or abolish a job classification; to establish qualifications for the various job
classifications; however, whenever a new position is created or an existing position changed,
County shall establish the job duties and wage level for such new or revised position in a fair
equitable manner subject to the grievance and arbitration procedure of this Agreement. The
shall have the right to adopt reasonable rules and regulations. Such authority will not be
a discriminatory manner. The County will not contract out for work or services where such
contracting out will result in the layoff of employees or the reduction of regular hours
bargaining unit employees.
. . .
ARTICLE III - GRIEVANCE PROCEDURE
Section 3.1. Procedure. Any difference or
misunderstanding involving the interpretation or
application of this agreement or a work practice which may arise between an employee or the
covered by this agreement and the County concerning wages, hours, working conditions or
conditions of employment shall be handled and settled in accordance with the following
. . .
Step 4. All grievances which cannot be adjusted
accord with the above procedure may be
submitted for decision to an impartial arbitrator. . . .
The authority of the arbitrator shall be
limited to the construction and application of the terms
of this Agreement and limited to the grievance referred to him for arbitration; he shall have
or authority to add to, subtract from, alter or modify any of the terms of this Agreement.
decision of the arbitrator shall be final and binding upon the Union and the County.
Section 3.7. Policy
Grievances. The Union shall have the right to submit policy grievances
regarding provisions of this agreement in matters which do not necessarily apply to any one
. . .
ARTICLE IV - SENIORITY
. . .
Section 6.2. Seniority - Personnel Actions. The
practice of following seniority in promotions,
transfers, layoffs, recalls from layoffs, vacations and shift preference to fill vacancies shall
continued. Ability and efficiency shall be taken into consideration only when they
outweigh consideration of length of service or in cases where the employee who otherwise
retained or promoted on the basis of such continuous service is unable to do the work
Regular employees shall receive preference over new applicants. A transfer is the filling of
a new or
vacated position and shall be governed by the job posting.
Section 6.3. Temporary
Assignments. The County, in exercising its right to assign
employees, agrees that an employee has seniority in a job classification, but may be
assigned to another job to fill a vacancy
caused by a condition beyond the control of management. Any
employee so temporarily assigned
shall be returned to his regular job as soon as possible. Temporary job assignments shall not
considered job transfers.
ARTICLE VII - JOB POSTING
Section 7.1. Procedure. Notice of vacancies
which are to be filled due to retirement, quitting,
new positions, or for whatever reason, shall be posted on all bulletin boards with within five
workdays; and employees shall have a minimum of five (5) workdays (which overlap two (2)
consecutive weeks) to bid on such posted job. The successful bidder shall be notified of his
and his approximate starting date within five (5) workdays.
Section 7.2. Contents of
Posting. The job requirements, qualifications, shift and rate of pay
shall be part of the posting and sufficient space for interested parties to sign said posting, or
in writing notify the department head of their application. When an employee is absent from
his steward may sign said posting for such absent employee. The Executive Board shall be
of any changes in job postings before they are posted.
Section 7.3. Seniority - Skill and
Ability Factors. In filling a vacancy, the employee signing
with the greatest institution-wide seniority in the department shall be given first consideration
as provided for in section 7.4 below. Skill, ability and efficiency shall be taken into
when they substantially outweigh considerations of length of service.
Section 7.4. Employment
Preference. Regular employees shall receive preference over
temporary employees. Temporary employees shall receive preference over new applicants.
part-time employees shall have preference over temporary employees in working a regular
hour per week position.
. . .
ARTICLE IX - OVERTIME
. . .
Section 9.2. Daily and Weekly. Hours over
(8) per day or forty (40) per week shall be
paid at a rate equal to one and one-half (1-1/2) times the employee's regular rate of pay.
absences such as for sickness, vacations, holidays, etc., shall be considered hours worked in
computing the forty (40) per week. Any deviation from the above shall be by mutual
. . .
ARTICLE XIX - PART-TIME EMPLOYEE BENEFITS
Section 19.1. Part-Time Employee
Defined. A part-time employee is defined as one who is
regularly scheduled to a lesser number of hours (40 hour week) than a full-time employee.
. . .
Section 19.3. Benefits. Regular part-time
employees shall be eligible to receive fringe
benefits after completion of their probationary period at Brookside Care Center. Part-time
benefits, with the exception of holiday pay, shall be as follows:
0 hours but less than 16 hours: No fringe
16 hours but less than 24 hours: 50% of
full time benefits
24 hours but less than 32 hours: 75% of
full time benefits
32 hours but less than 40 hours: 100% of
full time benefits
. . .
ARTICLE XXI - GENERAL PROVISIONS
Section 21.1. Copies of the
Contract. . . .
Section 21.2. Maintenance of Forty
(40) Hour Workweek. The County shall make every
reasonable effort to operate its projects so as to maintain a forty (40) hour week. There shall
reduction in the workforce rather than a reduction in hours. Employees with the least
be laid off first.
Section 21.3. Safety
. . .
Section 21.4. Use of
Automobile. . . .
Section 21.5. Equal
Opportunity. . . .
Section 21.6. LPN - InService
Training. . . .
Section 21.7. Training Sessions -
General. . . .
Section 21.8. Physical
Examination. . . .
Section 21.9. Coffee Break. . . .
Section 21.10. [relating to
dietary department] . . .
. . .
Among its various functions, the County operates Brookside Care Center. The Union
represents "all Brookside employees except supervisors, administrator's stenographer and
nurses." The County and Union have been parties to a series of collective bargaining
latest of which is the Agreement.
One of the operating departments at Brookside is the laundry department. On or
May 5, 2000, the County posted a Building Maintenance Helper (BMH) position in the
laundry department, specifying "Hours: 32 Hours per week Minimum, "A" Shift, Alternate
Weekends." The posting identified the position as one "VACATED BY: Yvonne Klemm."
had resigned from a 40-hour per week minimum position on or about April 7, 2000.
Just prior to
Klemm's resignation, the Brookside laundry department BMH complement had consisted of
three 40-hour positions (held by Klemm, Connie Sharp and Marsha Lucas) and two 20-hour
by Debra Smith and Lila Dora).
The 32-hour position posted on May 4 was filled by the selection of Dorn. Under
definition of "part-time employee" in Agreement Sec. 19.1, that position was "part-time" in
however, the holder of that position would be entitled to 100% of full-time fringe benefits
On May 16, 2000, the Union filed the subject grievance as a "policy" grievance,
asserting that the County had violated Agreement sections including 1.2, 7.1 and 21.2 by
the position formerly held by Klemm from a 40-hour to a 32-hour position; and that the
violated a past practice described in the grievance as, "[w]hen a job is vacated in a
internal shifting by seniority takes place and then the job left unfilled is filled by an
employee by their
On May 31, 2000, the County posted another 32-hour BMH position in the Brookside
laundry department, in response to Dorn's having vacated her former 20-hour position.
On June 16, 2000, the County posted a 16-hour BMH position in the Brookside
department, in response to Smith's having vacated her former 20-hour position.
As a result of those developments, the BMH laundry complement was two 40-hour
positions, two 32-hour positions and one 16-hour position.
The grievance remained unresolved in the grievance procedure, and it was ultimately
submitted for arbitration as noted above. At the arbitration hearing, the Union presented
by Local 1392 Vice President Kathy Million and laundry department BMH Connie Sharp.
County presented testimony by Laundry Housekeeping & Maintenance Supervisor Dana
Sharp testified that she has worked in the Brookside laundry for 15 years.
before Klemm's resignation, the well-established work assignments of the laundry employees
that Klemm and one other 40-hour employee did linen folding, the third 40-hour employee
personal clothes, and the two part-time employees operated the washing machines and floated
other work assignments. Each employee knew what her work assignment was when she
work each day. When Klemm's job was vacated, Sharp expected the County to follow the
that had always previously been followed whenever a laundry vacancy occurred: before a
employee was selected, the employees were offered an opportunity, in order of their
move to the work assignment vacated by the departed employee or to the work assignment
by a senior employee moving to another work assignment earlier in that process. Sharp
that that would have resulted in one of the part-time employees moving onto the folding
created by Klemm's departure. However, supervision offered no such opportunity for the
laundry employees to move to the vacated linen folding work assignment following Klemm's
Osinga testified that, prior to Klemm's departure, the County was experiencing a
problem with the amounts of overtime premiums (an average of 70 hours at overtime rates
quarter) that it was paying for coverage for absences of laundry employees. The laundry is
only on weekdays, and maintaining its full output on those days is critical to Brookside's
Accordingly, when a laundry employee is absent, it is frequently necessary to assign or call
replacement employees from among the laundry employees first and then from elsewhere, to
extra hours in the laundry.
Because employee acceptance of extra hours is not mandatory, the more laundry
employees working less than 40 hours per week there are, the greater the likelihood that
will be able to find one who is willing to work extra hours when needed to cover for an
absent co-worker. Because the County pays a weekly overtime premium for hours worked
by an employee in
excess of 40, the more hours below 40 per week that the laundry employees must be
assigned, the greater the likelihood that supervision will be able to find one who is both
work extra hours and entitled only to the straight-time rate for doing so. In addition, Osinga
explained that she finds that she encounters fewer "hassles" -- in the form of employee
arguments and questions -- when she moves part-time laundry employees from one work
to another to meet operational needs than when she moves full-time employees for that
Osinga testified that it was for all of those reasons that when Klemm resigned, the
County posted a position at "32 hours per week Minimum" rather than at 40 hours per week
minimum. By doing so, Osinga testified that she assured herself the flexibility of having
three part-time laundry department employees with a total of 40 potential straight-time extra
with the previous situation of having only two part-time employees with a total of 40
straight-time extra hours.
Osinga acknowledged that unlike all previous instances during her 12 years
the laundry, she did not offer the laundry employees the opportunity to opt by seniority to
the linen folding work assignment following Klemm's departure. Osinga stated that she
work assignments to be within her supervisory discretion to change or maintain, noting that
postings are generic as to work assignment, and specific only as to shift and department.
asserted that although she has, over the years, been willing to allow employees to move to
work by seniority when vacancies have occurred, she has also moved employees on other
to better meet the needs of the laundry operation.
Additional factual background is set forth in the summaries of the parties' positions
the discussion, below.
POSITIONS OF THE PARTIES
With regard to ISSUE 1, the County violated Agreement Sec. 21.2 by posting a
position when Klemm vacated her 40-hour position. The County did not make the required
reasonable effort to . . . maintain a forty (40) hour week" in all of the circumstances of this
County could have provided itself the scheduling flexibility it was seeking without either
regular hours to the existing level of 160 per week or reducing the number of 40-hour
positions below the existing level of three. Specifically, it could have done so by posting a
third 40-hour position following Klemm's resignation, presumably filling it with one of the
employees, and then posting the remainder of the 160 available hours of work per week as
two part-time positions, perhaps including one at an 8-hour per week level. The County's
failure to do so
adversely affected the successful bidder for the 32-hour position by denying that person 8
regularly scheduled work per week. The evidence presented by the County does not show
making the effort outlined by the Union above would not have been reasonable and sufficient
the County's needs. The Union has done much over the years to help save Brookside, but
is not entitled to the additional financial relief at issue in this case because it is not provided
permitted by the Agreement.
The non-filing of a grievance when the number of laundry 40-hour positions was
connection with the move to the new building has no bearing on this case. The move to the
building involved a substantial reduction in the number of residents served, and hence a
the amount of laundry processed each week for the facility. The instant circumstances
such reduction in available laundry work.
By way of remedy for the County's violation of Sec. 21.2, the Arbitrator should
County to post and fill a third 40-hour BMH position in the laundry to make the successful
whole for any loss that employee experienced by reason of the County's failure to post the
position on April 7, 2000.
With regard to ISSUE 2, the evidence shows that there are well-established laundry
assignments, consisting of folding linens, folding personal items and operating the washing
that the County always permitted the employees in the laundry to select open work
seniority whenever a laundry vacancy occurred in the past; and that each of the laundry
therefore knows what work assignment she is ordinarily expected to do when she comes to
The evidence also shows that the work assignment selection process has been done with the
knowledge and approval of the laundry supervisor each time a laundry vacancy has occurred.
instant circumstances, the employees have not been afforded the opportunity to select from
the available work assignments by seniority, violating the parties' long-standing established
By way of remedy for that violation, the Arbitrator should order the County to follow
practice of offering laundry employees the opportunity to select work assignments whenever
laundry vacancy occurs.
Both Union claims lack merit and should be denied.
Regarding ISSUE 1, Agreement Sec. 1.2 reserves management rights to the County
the right to eliminate full-time positions and to create part-time positions, and hence to post a
vacancy following the resignation of a 40-hour employee, "except as otherwise provided in
Agreement." Section 21.2 is not an applicable exception because it applies by its terms only
situations in which the amount of work to be performed is reduced. Here, the amount of
regularly scheduled in the laundry department has remained constant at 160 hours per week.
County's interpretation of Sec. 21.2 is further supported by the undisputed fact that the
Union did not
grieve when the number of 40-hour laundry positions was reduced at about the time the
Home moved to its new building.
Even if Sec. 21.2 is deemed applicable to situations beyond work reductions, it
that the County make "every reasonable effort to . . . maintain a forty (40) hour week."
The record establishes that the County acted as it did in this case to improve the
assignment flexibility and so that it would be better able to cover for laundry department
without paying overtime premiums. Section 21.2 does not require the County to forego its
of those legitimate and reasonable operational objectives. Especially so in light of the
of the functions performed by the laundry department, the particular importance of avoiding
of financial difficulties experienced by Brookside in the past, and the fact that under
19.3 a 32-hour employee is entitled to the same fringe benefits as a 40-hour employee.
Regarding ISSUE 2, Agreement Sec. 1.2 also reserves to management the right to
available tasks to the laundry BMHs, "except as otherwise provided in this Agreement."
with Agreement Sec. 7.2, the BMH postings specify the "job requirements, qualifications,
rate of pay," but they contain only a common generic description of the nature of the work
without a specification of a particular work assignment such as folding linen, doing personal
or operating the washing machines. There is no Agreement provision that requires the
offer work assignments to the laundry employees by seniority on the occasion of a laundry
vacancy or at any other time. Nor is there any Agreement provision that requires the County
continue any practice of doing so that it may have had. In any event, the fact that the
supervisor granted approval of the employees' job selections on the occasion of past
that the supervisor also had the discretion to deny approval of such job selections. Neither
historical willingness of the supervisor to approve prior reassignments of laundry work by
nor the fact that each laundry employee comes to work knowing what job to perform unless
otherwise directed are sufficient to bind the County to offer reassignments of the available
the laundry by seniority on the occasion of laundry vacancies or at any other time.
For those reasons, the grievance should be denied in all respects.
ISSUE 1 -- Posting Other Than a 40-Hour Position Following Klemm's
ISSUE 1 turns on the applicability of Agreement Sec. 21.2 to the facts of this case.
section, which is a part of "ARTICLE XXI - GENERAL PROVISIONS," reads as follows:
Section 21.2 Maintenance of Forty (40) Hour
Workweek. The County shall make every
reasonable effort to operate its projects so as to maintain a forty (40) hour week. There shall
reduction in the workforce rather than a reduction in hours. Employees with the least
be laid off first.
The language of the second and third sentences of Sec. 21.2 lends support, at least by
implication, to the County's contention that the section was intended to apply only to a work
reduction situations. However, that implication is overcome by other interpretive guidance
by the language of the Agreement. First, the parties chose to place Sec. 21.2 in the
PROVISIONS" article of their Agreement with such other provisions of general application
Section 21.3 Safety Devices, Section 21.5 Equal Opportunity, and Section 21.9 Coffee
the parties chose not to place it in the "SENIORITY" Article VI, which has various sections
to "layoff" including Sec. 6.4 specifically entitled "Layoff" and dealing with that subject.
parties titled Sec. 21.2 generally, i.e., "Maintenance of Forty (40) Hour Workweek" rather
any specific reference to work reductions. And finally, the language of the first sentence at
this case is also general; it contains no limiting reference to work reductions or to layoffs.
For those reasons, the Arbitrator concludes, that, on balance, the language of
Sec. 21.2, read
in the context of its Article XXI and of the Agreement as a whole, commits the County to
every reasonable effort to operate its projects so as to maintain a forty (40) hour week"
not only in connection with work reductions or layoffs. The second and third sentences of
section provide specific guidance as to how the parties intend the first sentence to apply as
the important subject of work reductions and layoffs, but those sentences do not persuasively
establish that the parties intended the first sentence to apply only to those situations.
The past practice evidence does not warrant a different interpretation. That evidence
that prior to moving to the new building, the laundry complement consisted of five, and at
times, six 40-hour positions; that immediately after the move there were initially four
positions and shortly thereafter only three, with the balance of the work performed by
positions. It is undisputed that the Union did not grieve those reductions in numbers of
positions. However, it is also undisputed that the resident population was substantially
anticipation of the move to the new building. Substantially fewer residents meant
laundry work to be done. The Union may well have viewed the reduction in the number of
positions as a reasonable and appropriate adjustment to the reduction in overall laundry work
needed to be done to support the smaller resident population to be served in the new
fact that the Union did not grieve those reductions is, therefore, not a persuasive basis on
conclude that the Union understood that Sec. 21.2 would not be applicable where, as here,
County reduced the number of 40-hour positions in a work area whose workload was
The disposition of ISSUE 1, therefore, turns on whether, in the circumstances of this
the County made "every reasonable effort to operate its projects so as to maintain a forty
week." As the County correctly points out, that language does not constitute an absolute
that a 40-hour week be maintained. Rather, it requires only that the County make "every
effort" to do so.
The County's reasons for posting a 32-hour rather than a 40-hour position in this case
those referred to in the summary of Osinga's testimony on that subject under
It is undisputed that the County was paying overtime rates an average of 70 hours per quarter
cover for absent laundry employees; and that posting a 32-hour rather than 40-hour position
increase by one the number of employees with available extra straight-time hours for possible
covering for laundry absentees and thereby somewhat improve the chances that the supervisor
be able to cover for laundry absentees with laundry employees and at straight-time rather
overtime premium rates. However, the record also suggests that the County could have
same benefit without failing to maintain three 40-hour laundry BMH positions. Specifically,
County could have: posted the position vacated by Klemm at 40 hours; reasonably expected
least one of the part-time laundry employees would have applied for and been selected for
position; and either posted the newly vacated 20 hours of work as a combination of an 8-hour
position and a 12-hour position or explored (with the Union if necessary) the elimination of
20-hour position and the creation of some other combination of part-time positions such as a
combination of an 8-hour and a 32-hour position. The Arbitrator therefore finds that the
could in that way have addressed its absentee coverage and overtime pay concerns just as
without failing to maintain a third 40-hour position in the laundry. The County's failure to
an alternative violates the County's Sec. 21.2 obligation to "every reasonable effort to
projects so as to maintain a forty (40) hour week."
It was also undisputed that the laundry supervisor has found it easier to move
laundry employees from one work assignment to another to meet operational needs than it
move full-time employees for that purpose. Osinga testified that she found it easier in the
she encountered fewer "hassles" such as employee resistance, arguments and questions.
the Arbitrator finds that living with the potential for such additional hassles from a third
employee falls well within the "every reasonable effort" required of the County by Sec. 21.2.
For those reasons, the Arbitrator concludes that, in all of the circumstances of this
County violated Sec. 21.2 by failing to make every reasonable effort to maintain a third
laundry position following Yvonne Klemm's resignation.
ISSUE 2 -- Failure to Allow Seniority-Based Work Assignment Selections
It is undisputed that for many years and with the knowledge and approval of the
supervisor, laundry employees have been uniformly afforded the opportunity, in seniority
move to a work assignment (e.g., folding linen, personal items, operating washing machines)
by the departure of a laundry co-worker, prior to the selection of an employee to fill any
posted as a result of that departure.
In dispute in this case is whether the Arbitrator should order the County to maintain
practice in cases where, as here, the laundry supervisor decides not to do so.
Agreement Sec. 3.1 makes the Agreement grievance procedure applicable to "[a]ny
or misunderstanding involving the interpretation or application of this agreement" or
work practice . . . concerning wages, hours and working conditions. . . ." However, the
language authorizing "Policy Grievances" authorizes the Union to "submit policy grievances
provisions of this agreement in matters which do not necessarily apply to any one
(Emphasis added.) Moreover, the grievance arbitration language in Step 4 of that section
authority of the arbitrator . . . to the construction and application of the terms of this
agreement . .
." It goes on to provide that the arbitrator "shall have no power or authority to add to,
alter or modify any of the terms of this Agreement."
In light of those express limitations on the nature of policy grievances and on the
of the Arbitrator, a past practice or "work practice" must be meaningfully related to a
the Agreement in order to be a proper basis for an arbitrator's remedial order.
In this case, the past practice relied upon by the Union is not meaningfully related to
provision of the Agreement. On the contrary, Agreement Sec. 6.3 recognizes the existence
County's right to assign employees." Moreover, the management rights language in Sec. 1.2
expressly reserves to the County "all the normal rights and functions of management and
those it has
by law" except as "otherwise provided in this Agreement," and the Arbitrator has found no
Agreement provision that supports the limitation on the County's right to assign work to
employees in the manner requested in this case by the Union. In addition, Agreement Sec.
expressly provides that "[t]he practice of following seniority in promotions, transfers,
from layoffs, vacations and shift preference to fill vacancies shall be continued"; but it makes
similar provision for continuation of the practice of following seniority in work assignments,
move from one laundry BMH work assignment to another is not a "transfer" within the
the Sec. 6.2 definition of that term. Finally, Agreement Secs. 7.1 and 7.2, read together,
the County post vacancies by specifying the job requirements, qualifications, shift and rate of
those provisions make no similar provision for a posting of work assignments or for the
on a posting of the particular work assignment involved.
It is quite understandable, given the longstanding and uniform practice in evidence in
that Sharp and her laundry co-workers would have expected to have an opportunity in
to move to a folding linen work assignment following Klemm's departure. However, despite
historical uniformity, the practice at issue involves a manner of exercise of the right reserved
County under the Agreement to direct the work force. The County's exercise of that right in
manner it has over the years does not defeat the County's right to exercise that right
Osinga did in this case. The laundry supervisor is free under the Agreement to decide, from
time, how to exercise the County's right to
determine what laundry BMH work to assign to which of the laundry BMH employees.
that management right, the laundry supervisor is free to give whatever weight she deems
if any, to a variety of legitimate operational and other factors -- including but not limited to
employee preferences, employee aptitudes, historical work assignment patterns and practices
needs of the laundry operation.
Accordingly, the Agreement does not entitle the Union to a remedy where, as here,
supervisor chose not to offer its laundry department employees an opportunity to select work
assignments by seniority following the resignation of Yvonne Klemm.
ISSUE 3 -- Remedy
By way of remedy for the violation found regarding ISSUE 1, the Arbitrator agrees
Union that it is appropriate to require the County to re-post and fill as a 40-hour position the
improperly posted as a 32-hour position on May 4, 2000. The Arbitrator has specifically
the County is required to implement that remedy "[u]nless the parties agree otherwise" and
implementing that remedy the County shall have the right to eliminate and re-post one or two
part-time laundry positions as necessary to adjust the hours of the part-time laundry positions
available hours of laundry work."
With regard to the Union's further request for back pay relief payable to the person
selected, the Arbitrator finds it appropriate to retain jurisdiction with respect to whether and
extent any such relief should be granted in this case. The Arbitrator has chosen that
order to afford the parties an opportunity to settle that issue informally between themselves
know the results of the re-posting ordered above.
If the parties are unable to resolve that remaining issue between themselves, the
will then receive additional evidence and argument concerning that aspect of the case before
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the ISSUES noted above that:
1. The County did violate the Agreement when
failed to maintain a 40-hour position in its
2. The Union is not entitled
to a remedy for the County's failure to offer its laundry
department employees an opportunity to select work assignments by seniority following the
resignation of Yvonne Klemm.
3. The remedy for the violation noted in 1, above, shall be
a. Unless the parties agree otherwise,
Kenosha County, its officers and agents, shall, in
accordance with Agreement Article VII - Job Posting, promptly post and fill a third 40-hour
Maintenance Helper position in the Brookside laundry department, to replace the 32-hour
that was posted on May 4, 2000. In implementing that remedy, the County shall have the
eliminate and re-post one or two part-time laundry positions as necessary to adjust the hours
part-time laundry positions to the available hours of laundry work.
b. The Arbitrator retains jurisdiction for
at least 60 calendar days from the date of this Award
to resolve, at the request of either party, any dispute that may arise as to the meaning and
of 3.a. above and/or any dispute that may arise regarding any claim for back pay relief for
employee selected to fill the 40-hour position referred to in 3.a., above. If any such back
is made by the Union, and if the parties are unable to resolve it between themselves, the
will receive evidence and argument and render a supplemental award concerning whether and
extent such relief shall be ordered in this case.
Dated at Shorewood, Wisconsin, this 20th day
of December, 2000.
Marshall L. Gratz, Arbitrator