BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 244, AFSCME, AFL-CIO
THE CITY OF SUPERIOR
(Johnson Seniority Grievance)
Mr. James E. Mattson, Staff Representative, Wisconsin Council
40, 1701 East Seventh Street,
Superior, Wisonsin,for the labor organization.
Fryberger, Buchanan, Smith & Frederick, by Attorney Joseph J.
Mihalek, 1419 Tower Avenue,
Superior Wisconsin, for the employer.
Local 244, AFSCME, AFL-CIO ("the Union") and the City of Superior ("the City")
parties to a collective bargaining agreement which provides for final and binding arbitration
disputes arising thereunder. The Union made a request, in which the City concurred, for the
Wisconsin Employment Relations Commission to designate a member of its staff to hear and
a grievance over the interpretation and application of the terms of the agreement relating to
The Commission appointed Stuart Levitan to serve as the impartial arbitrator. Hearing in the
was held in Superior, Wisconsin on October 17, 2000; it was not transcribed. The parties
written arguments on November 22, 2000, and waived their right to reply.
The parties did not agree to the issue. I state the issue before me as follows:
Did the City violate the collective bargaining agreement when it
designated William Larson as
having a higher seniority ranking than Robbi Johnson? If so, what is the appropriate
The city possesses the sole right to operate the City Government
and all management rights
reside in it, subject only to the provisions of this Contract and applicable law. These rights
A) To direct all
operations of the City.
B) To establish work
rules and schedules of work.
C) To hire, promote,
schedule and assign the employees to positions with the City.
. . .
SENIORITY AND EFFECT OF SENIORITY ON
7.01 Effective January 1, 1986,
seniority according to this Agreement, shall begin with the
employee's starting date of employment within this bargaining unit. After January 1, 1986,
employees re-assigned from other bargaining units shall, however, retain longevity, sick
accumulation and vacation based upon his/her years of service credited in such other
bargaining unit. Seniority shall not be diminished by absence due to illness, authorized
of absence or temporary layoff. Seniority lists shall be maintained by each division and on a
unit-wide basis. Each seniority list shall be brought up-to-date annually and copies of same
shall be mailed to the Secretary of the Union.
7.02 The seniority of each
employee of the City of Superior shall be maintained within the various
divisions of the Public Works Department. Any person newly employed in any division,
except employees returning from military service placed in a new division, shall begin at the
bottom of the seniority list of that particular division.
Crucial to the cooperative spirit with which this Agreement is
made between the Union and the
City of Superior is the sense of fairness and justice brought by the parties to the adjudication
employee grievances. Should any employee feel that his/her rights and privileges under this
Agreement have been violated, he/she shall consult with his/her Union Grievance Committee.
aggrieved employee and the Grievance Committee shall, within ten working days of the date
grievance occurred, present the facts to the employee's immediate supervisor or department
. . .
11.05 The arbitrator shall
hold hearings and take testimony regarding the dispute and shall render
his/her decision, which shall be considered final and binding to both parties to this
The arbitrator, in making his/her decision, shall neither add to, delete from, nor amend any
of the existing provisions of this agreement.
. . .
This grievance concerns the relative seniority of two city employees, both covered by
collective bargaining agreement between the union and the city, who began work the same
union contends that the employe who worked the day shift, Robbi Johnson, has greater
city considers the employe who worked the afternoon shift, William Larson, to have been
and thus have greater seniority.
Johnson and Larson both applied for employment as equipment mechanic or welder
with the city in May 1999. At that time, Larson had about 15 years relevant experience,
in six separate classes on his commercial driving license (CDL), and was earning $14.14
hourly as a
heavy equipment mechanic for a construction firm. Johnson
had about seven years relevant experience, a single CDL endorsement, and was
as a mechanic and welder. Both men were graduates of Superior's South Shore High School,
Johnson also holding a two-year degree in diesel and power equipment from Lake Superior
The city hired both men, and had them start work on the same date, August 16,
Johnson was assigned the first shift, starting at 7:00 a.m., with Larson directed to report to
shift at 3:00 that afternoon. The city assigned Larson the employee number 3330 and
3331. Pursuant to the collective bargaining agreement, both Larson and Johnson were on
until February 16, 2000.
In December 1999 the city distributed a call-out list for winter snow plowing,
employees in seniority order. On January 8, 2000 the city provided to the union an updated
list, which was then posted in the city garage where Larson and Johnson both worked. Both
showed Larson to have seniority over Johnson. Johnson was aware of the respective seniority
rankings no later than January 2000.
On February 24, 2000, city Human Resources Analyst Cammi Koneczny sent Larson
the following letter:
I understand that there has been some
confusion about your seniority with the AFSCME Local
#244 union so I am writing this memo hoping to clarify the issue for both of you.
When you interviewed for a mechanic
position with the City there were two vacancies. Based
upon your interviews and work experience it was determined that the first position would be
to William Larson and the second position would be offered to Robbi Johnson. The union
states that seniority shall begin with the employee's starting date of employment within the
unit. It is the City's privilege to determine order of seniority when hiring new employees as
start dates don't contradict that order. Even though you both started on the same date,
determined by the City to be more senior. We could have started Robbi a day later to make
seniority more clear but you were both available to start on the same day and we didn't want
lose the opportunity to earn money. In this case, to clarify your seniority order, we also
that your employee numbers were issued with the more senior person receiving the lower
In addition, it does not matter that one of you started on the day shift and one on the
seniority is based on start "date", not start "time".
I hope this clarifies your seniority questions.
If you have any other questions please call me.
On February 29, 2000, the union filed a grievance, contending that Johnson should
seniority over Larson because he worked the earlier shift. On March 9, 2000, Koneczny
union steward Mike Rainaldo as follows:
I am responding to the above-referenced
grievance at the first step.
Article 3(C) of the Local #244 Working
Agreement, Management Rights, states that management
has a right "To hire, promote, schedule and assign employees to positions with the City."
to hire William first and Robbi second, based on their interviews and work experience. We
William the lower employee number to clarify their seniority. We have used this same
practice in the
police department, where they often hire more than one officer at a time, with seniority
their employee number. Also, when Robbi was in our office I'm sure he asked me if he was
or second mechanic hired and I told him he was the second.
Article 7.01 of the Local #244 Working
Agreement, Seniority and Effect of Seniority of Fringe
Benefits, states that seniority "shall begin with the employee's starting date of employment
bargaining unit." Management determines who will be hired and on what date they will start
employment, thereby determining their seniority ranking. Even though William and Robbi
the same date, management had pre-determined that William would be more senior and
that by giving him the lower employee number.
I am also attaching the memo which I sent
to William Larson and Robbi Johnson on February 24,
Based on the facts stated above, your
grievance is denied. You may elevate this grievance to the
On March 17, 2000, Rainaldo wrote to Superior Mayor
Margaret Ciccone as follows:
Attached you will find a copy of the above
grievance along with letter from Cammi Koneczy
responding to the grievance as well as a previous letter from her on the issue.
We have no problem with Article 3(C) of
the contract in regards to management's rights "To hire
promote schedule and assign employees to positions with the city." This is not the issue,
it is the Unions contention that no matter who they decided to hire first, the contract does
7.01 that seniority "Shall begin with the employees starting date of employment
bargaining unit." The issue is, who has seniority and who determines it when
there is more than
1 person starting on the same day.
Cammi mentions the past practice in the
police department. In the past this has happened in
Local 244 with 3 people starting on the same date and straws were drawn to determine
In addition, the Union feels it is poor
practice to have same starting dates and also would like to
see some clear policy defining how and when people are hired vs. their starting date, to
seniority. This would prevent any mis-understandings and hard feelings in the future. After
seniority is an important issue and should be treated as such!
Please schedule an appointment to meet
with us on this as soon as possible to discuss this.
Thanks for your time!
On April 25, 2000, Ciccone replied to Rainaldo as follows:
William Larson was selected to be hired before Robbi Johnson
because he had more experience
as a Mechanic, Robbi agreed that was true. By that decision the City determined William to
offered employment first and, accordingly, be more senior. Even though William and Robbi
on the same date, William was selected to be more senior and was given the lower employee
to clarify seniority between the two of them. There could have been more clear
to the order of seniority in this situation, and I would suggest that communication be sent to
employee in any similar situations in the future. I would also suggest that you discuss
issue in your next contract negotiations.
The City had justification in determining
William to be more senior than Robbi, therefore I am
denying your grievance at the second step. You may proceed to the next grievance step if
On June 19, 2000, the city's Human Resources Committee
denied the grievance. The
committee also approved an amendment to the city's Human Resources Policies and
Filling of Vacancies Employee Processing, as follows:
HRP05.05A PROCEDURE VII. Once all
appointment processes are complete, the
employee may start work and the required information will be input into the
The employee's seniority date will be established by the Human Resources Director in
with the department head. In the event that more than one individual is hired on the same
Human Resources Director will determine the order of seniority and will notify the
writing on the order of seniority.
On August 3, 2000, the union submitted its Request to Initiate Grievance Arbitration
Wisconsin Employment Relations Commission.
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union asserts and
Seniority is based upon who starts work first. This is a simple
matter of interpretation of
seniority, which is determined by the time an employee starts working.
The facts are clear, in that the grievant
started work at 7 a.m. and Mr. Larson started work at 3
p.m., both on August 16, 1999. Without question, this makes the grievant the senior
Arbitral authority in Robertshaw-Fulton Controls Co., 22 LA 273 (1954) supports the
understanding that the employee who starts work first is the more senior employee.
The language in the collective bargaining
agreement is clear and unequivocal, stating that
"seniority according to this agreement shall begin with the employee's starting date of
within this bargaining unit."
Further, past practice upholds the union's
position. While seniority ties have occurred only a few
times in the past twenty-three years, never in such seniority ties did management decide the
seniority of employees hired on the same day. Instead, the practice (once in 1975 and once
was for the union local to draw cards to determine seniority.
The employer's attempt to infer that the employee's number
reflects a seniority ranking is
incorrect, in that this number is not a determining factor for seniority. The union strongly
an allegation. A review of the seniority list shows the employee's number does not
the seniority ranking an employee has on the seniority roster. The employee number is a
number and is not a seniority ranking number.
The city is also incorrect is attempting to
raise timeliness for the first time at hearing. As
arbitrator Gratz has written, the employer has "waived its timeliness defense by failing to
during the pre-arbitral processing of the grievance, such that the grievance is procedurally
The grievant did not file the grievance until
February 29 simply because he was serving a six
month probationary period which ended on February 16. Given the tentative nature of a
period, the grievance was not filed until completion of that period.
The facts are quite clear. Mr. Johnson
reported to work before Mr. Larson. Mr. Johnson is the
more senior employee. Nothing can be more fair and objective than the "clocked in"
principle. If the
city wanted to ensure that Mr. Larson had greater seniority, it could simply have started Mr.
a day earlier. By the city's action of having both employees start on the same day and
Mr. Larson report on the later shift the city waived its options regarding seniority
Similarly, the city waived its argument
regarding timeliness by waiting until the arbitration hearing
to raise for the first time any concerns regarding timeliness.
Therefore, the arbitrator should sustain the
grievance and award Mr. Johnson the higher seniority
In support of its position that the grievance should be denied,
the city asserts and avers as
The collective bargaining agreement unambiguously and explicitly
provides that the grievance
shall be presented within ten days of the date the grievance occurred.
This contractual mandate is an
explicit and unambiguous provision and must be applied as written. The grievant and union
to comply with this contractual mandate, and so the grievance must be dismissed as untimely.
The grievant and union were aware of the order of hiring based
on the call out list distributed in
December 1999. No grievance was filed within ten days of the date on which they learned
order of hiring.
They were also aware of the master
seniority list dated January 8, 2000, but again no grievance
was filed within the ten days.
The grievant and union admit they were
aware of their disagreement with the order of employees
on the seniority list, but intentionally chose not to file a grievance while Johnson was still a
probationary employee. The collective bargaining agreement does not include any exception
ten-day grievance filing deadline for probationary employees. Further, Johnson passed his
probationary period on February 16, 2000; even if the ten-day period began to run on that
grievance was still untimely because it was not filed by February 26, 2000.
Any argument that the untimely grievance
can be heard must be rejected. The collective
bargaining agreement explicitly states that the arbitrator shall neither add to, delete from, nor
any of the existing provisions of the agreement. Because the arbitrator's authority is derived
exclusively from the collective bargaining agreement, the arbitrator should not stretch the
that the parties have intentionally placed upon the grievance process. Because Johnson and
failed to comply with the time limits under the collective bargaining agreement, the grievance
untimely and must be dismissed.
Further, the city properly determined the
order of hiring because the determination was within
the city's management rights, the contract is silent on the issue and by past practice
determined the manner in which the order of hiring was determined for employees who had
The collective bargaining agreement merely
requires that the city assign to employees as their
seniority date the date on which they started within the bargaining unit. The city has done
is no violation of the collective bargaining agreement.
Determining the order of hiring for
employees with the same seniority date is within the city's
management rights. Under the residual or reserved rights doctrine, an employer's right to
and operate the business is unfettered unless it has limited its right to manage through a
provision in the labor agreement. Where the collective bargaining agreement does not
procedure for breaking a seniority tie, the employer has the management right to
determine seniority. Here, because there is
no specific provision in the collective bargaining
agreement otherwise limiting the city's unfettered right to make the determination, the city
sole right to determine the order of hiring of employees hired on the same date. The city
the right to hire Larson before Johnson and to determine their relative seniority ranking
No reasonable interpretation of the term
"starting date" would include the hour of the day on
which the employee began work, and the grievant presented no evidence that the parties ever
considered "starting date" to include hour of the day.
The city's determination of the order of
hiring of Larson before Johnson was rational, being
based on Larson's greater and far more pertinent experience. The city properly determined
Larson should be offered the first mechanic position, and had only one mechanic been hired,
would have been Larson. The city properly determined that Larson should be senior to
did not abuse its discretion in making this decision.
There was no past practice of allowing the
union to determine the order of hiring or the ranking
on the seniority list of employees with the same seniority date. To be binding, a past
be unequivocal, clearly enunciated, readily ascertainable and accepted by both parties. Here,
union presented hearsay testimony to imply that on one or two prior occasions, employees
straws to determine seniority ranking. However, this testimony clearly established that it
personnel director of the city who made the decision on the method to use to determine
ranking, not the union or its members. The city could unilaterally change the manner in
determined how these decisions would be made so long as nothing in the collective
agreement limited its discretion. Mutual agreement is not required for management to
particular method that management has chosen in the exercise of its managerial discretion.
It was the past practice of the city to
determine the manner in which seniority ranking would be
determined for employees with the same seniority date. It was the personnel director/mayor
determined in 1975 that the three members of Local 244 who started work on the same date
draw cards to determine their relative seniority ranking. It was the personnel director/mayor
directed three members of Local 244 who started the same date in 1983 to draw straws to
their relative seniority.* It was the personnel director/mayor who unilaterally decided in 1992
employee of three with
the same seniority date would be considered first hired. The
method of determination used by
the personnel director in 1999 was identical to that used in 1992, when no grievance was
The decision to place Larson ahead of
Johnson on the seniority list was simply a product of the
decision that Larson was first hired because of his greater relevant experience. This decision
consistent with 25 years of past practice in which the determination of the method by which
decisions are made was dictated by the personnel director, not the union or employees. That
may have opted for drawing cards or straws in the past did not preclude the city from using a
method at a later time. The method used by the city to determine seniority ranking between
employees with the same seniority date is within the city's discretion.
Accordingly, the grievance should be
Seniority is one of the most important aspects of an employee's work status.
employees covered by the collective bargaining agreement under review, it can affect several
conditions of employment, up to an including perhaps the most critical condition of all, job
The grievance before me presents the important question of determining the
seniority of two employees who started on the same date, but on different shifts. The
designated the employee who started on the second shift as having greater seniority than the
co-worker who started on the first shift, a determination the union claims violated the
Before I may consider the merits of this matter, however, I must first address
procedural objection the employer raised at hearing concerning the timeliness of the
The collective bargaining agreement provides that the grievant and the
committee "shall, within ten working days of the date the grievance occcurred, present the
the grievant's immediate supervisor or department head. While Johnson may have known
that the city
regarded Larson as having greater seniority as early as December 1999, there is no dispute
fact that the city provided to the union a copy of the updated seniority list on January 8
allowing for a few days for the union to post the list and for Johnson to see it, his time limit
strict reading of the collective bargaining agreement would appear to extend no later than late
The union seeks waiver of the time limit on two grounds that Johnson
cautious in waiting till the expiration of his six-month probationary period to file the
that the employer had itself failed to raise the timeliness issue in a timely manner.
The employer cites two cases in support of its strict construction of the collective
agreement and its contention that the grievance should be summarily dismissed as untimely.
to significant differences in the language of the respective collective bargaining agreements,
is completely on-point.
In Power Wheels, 91 LA 1062 (Bittel, 1988), the collective bargaining agreement
the following language:
Time Limits: . There shall be strict
adherence to all of the time limits provided in the
foregoing procedure, unless the parties shall agree in writing to an extension of such time
one or more steps in the grievance procedure. Should the Union fail to proceed with the time
prescribed in the grievance procedure the grievance shall be deemed to not exist
and it shall not
be subject to any further processing in the grievance or arbitration procedure.
The relevant language of the collective bargaining agreement at issue in Monroe
Manufacturing, Inc., 107 LA 877 (Stevens, 1996) is less absolute, but still of importance:
time limits shall be strictly construed." The arbitrator explicitly relied on this clause,
"(g)iven the provision in the contract that the time limits shall be strictly construed, a waiver
explicit, not implicit."
In the contract before me, there are no such absolutes or mandates, beyond the
the grievance "shall, within ten days of the date the grievance occurred," be presented to the
employee's supervisor or department head. Despite this statement, however, the contract is
on the effect of the Union's failure to comply with that deadline.
It is also of considerable, even dispositive import that the employer did not raise the
timeliness until the arbitration hearing itself. The city formally responded to this grievance
separate occasions analyst Koneczny's reply of March 9, Mayor Ciccone's reply of
April 25, and
the Human Resource Committee's action of June 19. At no time did the city ever raise the
timeliness; rather, it responded solely and directly to the substantive merits of the dispute.
The Union has cited an award by my colleague Arbitrator Marshall Gratz in support
contention that the grievance should not be dismissed on the grounds of untimeliness. That
is worth quoting at length:
The Arbitrator agrees with the Union that the County's
processing of the grievance at the
various pre-arbitral steps without preserving the timeliness defense on which it relies in its
constitutes a waiver of that defense.
The arbitration awards cited by the County
stand for the propositions the County asserts
regarding waiver. However, those awards represent a minority viewpoint among arbitrators
the view of this Arbitrator, they are not as well reasoned as the cases representing the
The oft-cited arbitration reference, Elkouri
and Elkouri, How Arbitration Works,
(BNA, 4 ed.,
1985) discusses this point at pp. 194-195. The authors state, "[i]n many cases time limits
waived by a party in recognizing and negotiating a grievance without making clear and
objection." For that proposition they cite a substantial number of awards. Id. at
n.192. The Elkouris
then go on to state, "But there are some cases holding to the contrary." For that proposition
authors cite a total of three awards, including the two cited by the County herein.
Id. at n.193. 1/
1/ The Fifth Edition
(1997) of this treatise has this discussion at pages 278-279.
In that context, and in light of the excerpts from various published
awards that follow, the
Arbitrator does not agree with the County that the County's position is supported by
Thus, in Columbian Carbon Co., 47 LA 1120, 1125 (Merrill, 1967), the arbitrator
There are a number of reasons why
the contention of untimeliness seems not well
founded. I shall content myself with the reason which would be dispositive even if all the
not present. This is that the Union has produced an abundance of evidence, both by its own
and through cross-examination of Company witnesses, that at no time during the
handling of the grievance by the Company authorities did anyone on behalf of the Company
slightest objection to the procedural sufficience of the presentation. Instead, at all levels, the
contention was considered and was denied upon the merits. No evidence to the contrary has
presented. By the clearly overwhelming preponderance of arbitral authority, this failure to
the timeliness of presentation, coupled with disposition of the grievance on the
merits, constituted a
waiver of the objection of timeliness. [citations omitted]. Accordingly
this objection is denied.
Similarly, in Ironrite, Inc., 28 LA 398, 399-400 (Whiting,
1956), the arbitrator stated,
Article XXIII, Step 1 of the contract provides that "Step One
must be taken within five (5)
working days after the occurrence complained of". The Company contends that the
thereby barred. It will be noted that no such objection to the grievance was raised in the
does it appear that such objection was made in the discussion of the grievance prior to the
hearing. The failure to make such objection when the grievance was presented or in prior
the grievance procedure must be deemed a waiver of the contractual time limitation.
limitations serve a useful purpose but may be extended or waived by agreement, and lack of
objection is always considered a waiver thereof."
In Denver Post, 41 LA 200, 204 (Gorsuch, 1963), the arbitrator stated,
It is a well recognized principle of the grievance and
process that each step of the
grievance procedure is to serve the function of amiably settling disputes, where possible.
is only to be resorted to when the parties cannot settle the case themselves. . .
. Further, it is
incumbent upon each party to raise all issues and defenses at each step of the grievance
in order to appraise the other party of all relevant problems. The underlying rationale here
is that by
laying their cards on the table at each successive step of the grievance procedure, the parties
increase their changes for settling the case without resorting to arbitration. . . . For the same
when objections to procedure have been raised during the grievance process, arbitrators will
refuse to hear them.
The [union] had a right to know of management's intent to strictly
adhere to the time limit for
grievance initiation at the time it met to decide whether and how to proceed. Without such
knowledge, the members could not make an intelligent choice as to whether or not to appeal
foreman's decision. [citations omitted].
In Harbison-Walker Refractories, Inc., 22 LA 775, 778 (Day, 1954), the arbitrator
The evidence bears out the
Company contention [that the grievance was not filed
within the agreement time limit] . . . . However the merits of these contentions need not be
in light of the company's conduct with respect to the grievance. That conduct makes it
both lack of timeliness and the failure to follow the grievance procedure were waived as
defenses. For it is absolutely clear that management discussed the grievance at every step
first . . . . It is also reasonably evident that there was never a clear reservation
of the right to assert
the procedural defenses while discussing the merits until the appeal to arbitration. By then it
late. [footnote omitted]. The waiver had already been effected.
To the layman any invocation of a
procedural rule to avoid dealing with the substance of an issue
is apt to be regarded as a 'technical' and therefore reprehensible avoidance of the merits.
expressed here should not be interpreted as embracing this conception. The doctrine of
itself technical. And it is important to recognize frankly that there is a legitimate practical
to procedural requirements even in labor contract administration where technicalities are
abhored. It just happens, on the facts, that in the present instance one "technical rule" is
In Philips Industries, Inc., 63-3 ARB Par. 8358 (Stouffer, 1963), the arbitrator stated,
[The company may not raise the question
of timeliness of filing of the grievance in these
arbitration proceedings]. The reasons therefor seem obvious. If [the arbitrator] were to find
of the Company on this issue, it could silently sit by and cause the Union to make
expenditures in preparation for arbitration. This would be unfair and inequitable. If the
intends to press objections as to the arbitrability of issues, it should acquaint the Union with
objections in steps of the grievance procedure preliminary to arbitration. The question
is not a new or novel one. There is a division of opinion between Arbitrators thereon.
this Arbitrator's opinion, the better reasoned decisions hold that where, as here, there is an
of contractual provisions on the subject, procedural objections are waived unless raised prior
arbitration. [citations omitted]
Discussion of the
merits of grievances in steps of the grievance procedure does not bar the
raising of procedural objections at the arbitration level so long as such objections are voiced
proceedings prior thereto. Full discussion of all aspects of grievances are conducive to
thereof, and the parties have, in effect agreed by the terms of Section 8 [Grievance
Procedure] of the
Agreement, to do so.
In view of the foregoing, it is the finding
of this Arbitrator that the Company may not for the
first time raise the question of timeliness of filing of the grievance in these arbitration
Also see, e.g.,
Pipe Fitters Local 636, 75 LA 449, 453
(Herman, 1980)("Timeliness is a
procedural issue which, like the Statute of Limitations in a lawsuit, must be raised at an early
step in the proceeding."); Aeolian Corp., 72 LA 1178, 1180
(Eyraud, 1979)("Arbitrators have
held, and this Arbitrator agrees, that the timeliness argument must be raised during the
discussion of the grievance at each appropriate step and that the defense must be preserved
in oral discussions as well as final submission to arbitration."); and Patterson
38 LA 400, 403 (Autrey, 1962)(". . . if there was a failure of the Union to file
within the five (5) workday time limits, such failure was waived by the Company when it
allowed the Union to proceed to arbitration and incur the expense thereof without advising
the Union that the issue of the timely filing was specifically reserved for a determination by
The agreed-upon Art. VII time
limits serve a useful purpose and must be applied where they
have not been waived. However, as noted above, the overwhelming and better-reasoned
of arbitrators holds that such procedural requirements are ordinarily to be deemed waived not
only by express agreement but also in other circumstances including where, as here,
pre-arbitral grievance processing is engaged in without any reference to procedural
In the Arbitrator's opinion, the outcome
herein does not weaken the Agreement grievance
procedure, but rather strengthens it. The parties expressly sought not only "prompt" but also
"just" settlement of grievances in their introductory provisions of Art. VII Grievance
Procedure. Moreover, as noted above, grievances are more likely to be promptly resolved
if both parties reveal their issues and defenses in the prearbitral steps. The parties, of
remain free to discuss the merits of grievances as to which a procedural defense has been
preserved. Furthermore, the County's has unilateral control over whether its designated
grievance representative preserve procedural defenses when deficiencies are present in the
grievances submitted to them.
It can also be noted that the County has not claimed or shown
that its ability to preserve
evidence and to present its case on the merits has been prejudiced by the timing of the
grievance initiation involved here. cf. Mount Mary
College, 44 LA 66, 73 (Anderson,
1965)(countervailing equities considered in determining whether pre-arbitral silence
constituted waiver of procedural defense.)
For the foregoing reasons, the Arbitrator
concludes that the County waived its timeliness
defense by failing to raise it during the prearbitral processing of the grievance, such that the
grievance is procedurally arbitrable.
I concur with the research and analysis by my veteran colleague, Arbitrator Gratz.
at no time prior to the arbitration hearing raised an objection to proceeding on the grounds
grievance was untimely. Moreover, the delay in filing was not of such length as to
disadvantage the city in responding to the grievance. Accordingly, I reject the employer's
that this grievance should be dismissed on the grounds of untimeliness, and proceed to
matter on the merits. 2/
2/ In finding the
grievance not untimely, I explicitly and expressly make no determination on the union's
contention that the grievant's status
as a probationary employee is a proper consideration in this analysis.
Regarding the merits of the matter, the union asserts that the basic principle of
essentially, first-in, first-served; that the relevant language is clear and unequivocal, and that
practice supports its position.
I agree that the language is clear in providing that an employee's seniority "shall
the employee's starting date of employment within this bargaining unit." Just as clear is that
has been no violation of that provision as pertains to the employees as individuals
both Larson and
Johnson started on August 16, 1999, and both have seniority dates reflecting that fact.
Implicit in the
union's claim, however, is the argument that the seniority designation cannot be fully
terms of the single employee, but must be applied in the context of other employees.
The union claims that there is a past practice which supports its assertion that
has ceded to the union and the employees the power to assign respective seniority standing in
where employees have the same starting date. The evidence suggests otherwise.
To be binding on both parties, Aribtrator Justin explained almost fifty years ago, a
practice must be "(1) unequivocal; (2) clearly enunciated and acted upon; (3) readily
over a reasonable period of time as a fixed, and established practice accepted by both
Celanese Corp. of Am., 24 LA 168, 172 (Justin 1954). The record before me fails to satisfy
The union offered testimony regarding two past experiences of employees with the
date. In 1983, a time when the Mayor also served as the city's Personnel Director, four
with the same starting date drew cards to determine their seniority ranking. In explaining
situation under cross-examination, union witness (chief steward and veteran officer Mike
testified that "the Mayor allowed the men to draw straws." In 1975, four employees started
same date; a union witness testified it was his "understanding" that "management" told union
it was "up to the union to settle," and that "they drew cards." The witness, Dennis Flaherty,
the four at issue, testified that he had had "no personal discussions with management," but
came down that's what had been determined." Flaherty also testified that seniority in this
was not based on who actually started work first. Even under the broadest and most generous
interpretation, these two incidents do not satisfy the union's assertion that "past practice
union's position." The union's claim to a meaningful and supportive past practice is further
diminished by Kocezny's testimony that the then-Mayor/Personnel Director, Herb Bergson,
unilaterally determined seniority rankings for three employees all hired on September 30,
The employer has cited several cases in support of its actions. At least one,
Steel CO., 26 LA 567 (Seward, 1956), seems particularly relevant. In that case, the
language in the
collective bargaining agreement provided for an employee's seniority to be computed "from
he first began work" in the seniority unit. In the matter before the umpire, two employees
the same day, on successive shifts. In rejecting the union's argument that the employee who
at 7:00 a.m. should have seniority over the employee who started at 3:00 p.m., the umpire
the "legal as well as the popular meaning of the word 'date' imports the day, month and year
reference to the hour of the day." The umpire concluded that the words "'date on which he
began work' clearly refer to the calendar day, but not the hour, on which an employee
started to work
in the seniority unit."
The entirety of the union's argument for Johnson having greater seniority is that he
work on the earlier shift than Larson. Accordingly, the reason for their respective
on my analysis.
There is no dispute but that the collective bargaining agreement grants to the
management rights of hiring, scheduling and assigning employees. The city's witnesses,
analyst Koneczny, testified credibly and convincingly that the city considered Larson to have
the first-hired of the pair, and that if the city had only been hiring for one vacancy, it would
Larson. Given Larson's greater experience, training and qualifications, that is a reasonable
plausible position to hold. Koneczny also testified that, based on Larson's greater
and Fleet Manager Art Swede determined Larson to have seniority over Johnson.
Mary Lou Andresen, the city's Human Resource Director, testified that, pursuant to
right to assign employees, Swede made the assignments of Johnson and Larson to their
shifts. She testified, credibly, that Swede put Johnson on the day shift because that shift
greater supervision, while Larson, with his greater qualifications and experience, could start
afternoon shift because of his lessened need for supervision.
The city cites the respective employee numbers which it assigned the two men as
indication that it considered Larson (#3330) to be more senior than Johnson (#3331). The
that the employee numbers and seniority rankings are not always fully aligned, which
city explains by noting that seasonal employees who become full-time keep their initial
have seniority only from their permanent status. While the employer's argument is supportive
position, I do not consider the issue of the respective employee number as being a significant
in my analysis.
Subsequent to this controversy arising, the city unilaterally amended its handbook on
and procedures for establishing employee seniority dates. In considering this grievance, I
and explicitly disavow any consideration or evaluation of the manner or means by which the
Larson, the more qualified and first-hired employee, was placed on the later shift
because he was more qualified; it would be an unjust, even absurd result, for Johnson to
greater seniority solely because he was assigned the earlier start time to address his need for
supervision. The city's designation of Larson as having greater seniority than Johnson was
with the terms of the collective bargaining agreement.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin this 26th day of January, 2001.