BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 244, AFSCME, AFL-CIO
CITY OF SUPERIOR
(Leach shift grievance)
Mr. James E. Mattson, Staff Representative, Wisconsin Council
1701 East Seventh Street, Superior, Wisconsin, for the labor
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") are parties to a collective bargaining
agreement which provides for final and binding arbitration of
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 decide a
grievance over the interpretation and application of the terms of
the agreement relating to changing shifts and duties. The
Commission appointed Stuart Levitan to serve as the impartial
arbitrator. Hearing in the matter was held in Superior, Wisconsin
on October 17, 2000; it was not transcribed. The parties submitted
written arguments on November 22, 2000, and waived their right to
The union states the issue as follows:
Did the Employer violate the terms of the collective bargaining
agreement when it unilaterally changed the work day and work week
of the grievant without the contractually required two week notice
of the change? If so, the appropriate remedy is to make the
grievant whole for any lost overtime pay due to this short notice
and to cease and desist from making changes in the employee's work
day/work week without the contractually required two week notice.
1/ The numbering of
sections has changed between the
collective bargaining agreements of 1997-1999 and 2000-2000. Under
the collective bargaining agreement currently in force, the union
makes its arguments under sections 18.01(I) and (J).
The city states the issue as follows:
Did the City violate the AFSCME Local #244 collective
bargaining agreement when it assigned Wade Leach, the least senior
qualified employee, to work relief at the Landfill, under the
Landfill shift hours, with less than two weeks notice after no one
had signed the posting for voluntary assignment to the relief
I state the issue as follows:
Did the city violate the collective bargaining agreement when
it assigned the grievant to the landfill for the period April 3-7,
2000? If so, what is the appropriate remedy?
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 employees to positions
within the City.
. . .
D) To maintain efficiency of City operations.
E) To take whatever action is
necessary to comply with State or
F) To subcontract work
presently performed by bargaining unit
members provided that regular, full-time Union members will
not be laid off or lose regularly scheduled straight time
hours as a result of any subcontracting. The City agrees that
it shall consult with the Union prior to subcontracting work
presently performed by full-time bargaining unit members.
G) To introduce new or
improved methods or facilities.
H) To determine the methods,
means and personnel by which City
operations are to be conducted.
I) To take whatever action is
reasonably necessary to carry out
the functions of the City in situations and emergency. (sic)
WORK DAY AND WORK WEEK
It is hereby declared to be the policy of the City of Superior
to provide regular full-time employees of the Public Works
Department forty (40) hours of work each week for fifty-two (52)
weeks each year and the City does hereby pledge and promise to do
all that is within its power to carry out this policy.
18.01 For all regular full-time employees of the Public Works
Department, forty (40) hours shall constitute a normal work
week consisting of five (5) eight (8) hour days, Monday
through Friday, from 7:00 A.M. to 11:00 A.M. and from 11:30
A.M. to 3:30 P.M., with the following exceptions listed below:
A) Central Equipment Division:
3:30 P.M. to 7:30 P.M.; 8:00
P.M. to 12:00 Midnight; 11:30 P.M. to 3:30 A.M.; 4:00
A.M. to 8:00 A.M.
Division: 10:30 P.M. to 2:30 A.M. and 3:00 A.M.
to 7:00 A.M., November 15 through April 15. This shift
shall be limited to no more than five (5) employees.
. . .
H) Alternative Work Schedules:
The Department Head and the
Union may mutually agree to a pattern of work that
deviates from the normal scheduling and overtime
practices outlined in this Agreement. The Employer shall
retain documentation of the agreement. Either the
Employer or the employee may revoke such election by
giving written notice to the other party at least five
(5) work days prior to the effective dates of revocation.
Employees shall have the opportunity to review an
alternative schedule or schedules, prior to volunteering
for flexible work hours. Alternative work schedules may
include shifts that are less than eight (8) hours or more
than eight (8) hours per day.
I) It is understood that
once an employee has permanently
been assigned to one of the above shifts he/she shall not
be rotated from shift to shift.
J) It is agreed that the
Employer decides to establish a new
shift, they will give two (2) weeks notice of their
intent unless the Union agrees to forego such two-week
employees: See Appendix C
. . .
Wade Leach has been an equipment operator with the city for
approximately three years, a Street Department employee with a work
schedule of Monday-Friday, 7:00 a.m. to
3:00 p.m. This grievance concerns the employer's action assigning
him to staff the city landfill for one week in April 2000. 2/
2/ Unless otherwise
stated, all dates are 2000.
On August 10, 1999, Paul King, Administrative Engineer for the
city's Public Works Department, sent landfill employees the
I have discussed with you, on several occasions, that we will
be changing the hours of operation at the landfill and subsequently
the work schedule.
As of Tuesday, September 9, 1999, the
landfill will be open per
the following schedule:
a.m. 2:30 p.m.
a.m. to 6:45 p.m.
crews and City
Per the above operating schedule, your working hours are as
Monday-Wednesday-Friday 9:00 a.m. 3:00 p.m.
a.m. 7:00 p.m.
Sick, vacation and holidays will be used and accrued according
to the hours scheduled for the date of use/accumulation. For
example, sick leave used on a Monday would be six (6) hours and
sick leave used on a Tuesday would be for eleven (11) hours.
Also on August 10, 1999, Union chief
steward Mike Rainaldo
grieved this matter, alleging that the collective bargaining
agreement was "very specific as to the work day, work week and
shift and shift hours. In addition, an overtime question is at
issue here." The Union sought to have the city "return to proper
hours or negotiate any changes that management wishes to make."
On August 31, 1999, Public Works Director Jeff Vito replied
Rainaldo as follows:
Your grievance states that the City has violated Articles
18.00, 18.01, 18.02 and 19.01 of the working agreement. In review
of those articles I see nowhere that the City violated any aspects
of the working agreement whatsoever.
In accordance with Article 18.02 of the
working agreement, the
City exercised its right in deciding to establish a new shift for
the landfill. We put the employees on notice prior to the two
weeks required for such a shift change. Based on this, there is
obviously no violation of Article 18. There is also no violation
of Article 19 in regard to overtime as proper notification was
given the employees. Beyond this, it is clearly my understanding
that we hand entered into flexible scheduling agreements with both
employees to better suit their needs as well as the City's needs,
which is certainly outlined in the working agreement of which we
followed the process and procedure.
Based on this information, I see absolutely
no violation of any
components of the working agreement on the City's behalf. I am
therefore denying this grievance. You have the option to move this
grievance to another level.
The union did not advance this grievance to any further steps.
On March 29, 2000, the city posted a notice as follows:
ATTENTION: STREET DEPARTMENT EMPLOYEES
POSTING FOR LANDFILL
Any street department employee interested
in working as a
relief worker at the Superior Landfill for the week April 3-7, 2000
please sign below. The hours will be regular landfill hours:
Monday, Wednesday and Friday 9:00 a.m. 3:00 p.m. and Tuesday and
Thursday 8:00 a.m. 7:00 p.m.
The rate of pay is 3601. All seniority and
Please sign below by March 31, 2000.
No street department employee signed the voluntary posting.
On Friday, March 31, city supervisor Clarence Mattson informed
Leach, the least senior qualified employee, that he was being
assigned to work at the landfill April 3-7.
Notwithstanding this assignment, the following Monday Leach
reported to his normal work site, the city garage, at his normal
starting time, 7:00 a.m. He was directed to leave the workplace
and report to the landfill at that facility's stated starting time,
9:00 a.m. Leach worked the published hours at the landfill for
the rest of the week, earning straight time for 40 hours work. He
did not receive any overtime.
On April 3, the union grieved this matter, stating that
"management changed work day, work week hours of employee without
giving two week notice of change," which it alleged established
that "management did not follow article 18.02c of the working
agreement." As remedy, the union sought to have the city "pay
employee for lost overtime hours, do not change employee's hours
without proper notice, make employee whole and follow working
On May 2, Public Works Director Vito replied to Union Steward
Rainaldo as follows:
Article 18.01(J) of the 2000 Local #244 Working Agreement is
interpreted by management to apply only when a new shift is
established. In this case there was no new shift, but rather the
assignment and work schedule already existed at the Landfill so the
two week notice to Wade Leach would not be pertinent.
This situation was the posting of an
assignment at the
Landfill. When no one signed up for the posting, management had
the right to assign someone. Mr. Leach was the least senior
qualified employee and was, therefore, assigned the work.
Because we do not feel there has been a
violation of the
Working Agreement, your grievance is denied at the first step. You
may advance to the second step.
On May 15, Mayor Margaret Ciccone wrote to Rainaldo as
This is a follow-up to our meeting on Wednesday, May
consider the above-mentioned grievance. I have reviewed the Local
#244 contract language in Section 18.01(J) regarding shift work and
my interpretation is that the contract is for a new shift, but the
staffing was for an existing shift with the work assignment at the
As we discussed at the meeting, the
between the Union and management and it may be that this language
interpretation needs to go to the arbitration level for clarity.
I thank you for your courteous work on this issue in noting
that both sides disagree, however, we are mutually seeking a
solution to this contract language. I am denying your grievance at
this level. If you wish, you may proceed to the next level.
On September 18, the city's Human Resources Committee also
denied the grievance. The Union thereafter advanced the matter to
POSITIONS OF THE PARTIES
In support of its position that the grievance should be
sustained, the Union asserts and avers as follows:
The language and intent of the labor agreement are clear
regarding the guarantee of stable working hours, and prevent the
grievant from being rotated to another work shift.
The collective bargaining agreement is clear
requirement is a two-week notice for the establishment of new
shifts. This is in the interest of stability of work shifts, in
that this two-week period allows for employees to make the
necessary adjustments to their lives. Waiver of this two-week
notice is solely at the discretion of the employee.
The long standing past practice of the
parties is clear. The
city never unilaterally or arbitrarily tried to force upon
employees a less than two-week notice in shift changes. Testimony
at hearing clearly affirmed the past practice that a two-week
notice was always given to employees.
The apparent reason that the grievant was
called upon to report
to the landfill with such short notice was that management made a
mistake, in that the supervisor did not realize until only a few
days before the start of the landfill worker's vacation that no one
had been contacted to fill in for the vacation schedule. While one
can sympathize with management's oversight of a vacation that had
been scheduled several months earlier, it can not be the employee
who should be penalized for a supervisor's oversight.
It was obvious how to address this problem.
The grievant should
not have been sent home for two hours, but should have worked till
the landfill opened at 9 a.m., then worked the full shift at the
landfill and receive the appropriate overtime.
The language of the collective bargaining
agreement and the
long standing past practice is clear regarding employees being
afforded a two week notice before a shift change. This is a
The employer now tries to argue that it is
within the scope of
management rights to change employees' scheduled with less than two
weeks notice. Neither the contractual language nor the past
practice supports this assertion.
Accordingly, the grievance should be
sustained and the grievant
awarded any overtime he lost due to the city's unilateral action
changing his shift without the required two week notice. The
arbitrator should also order the city to cease and desist from
unilaterally changing employees' work schedule without providing a
two week notice.
In support of its position that the grievance should be
dismissed, the City asserts and avers as follows:
The city fully complied with the collective bargaining
agreement when it temporarily assigned the grievant to fill a
vacancy causedby another employee's vacation. The collective
bargaining agreement gives the city the management right to
establish schedules of work, assign employees to positions,
determine personnel and take action reasonably necessary to
operate. This means that the city has the power to assign
employees to temporary assignments to fill in for sick or
vacationing employees. Otherwise, the city would be paralyzed and
unable to function when employees called in sick or went on
Moreover, under the residual or reserved
rights doctrine, the
city properly exercised its management rights when it assigned the
grievant to fill in for the absent employee at the landfill.
Absent an express provision to the contrary, the assignment and
transfer of employees is within management rights and authority.
Because there is nothing in the collective bargaining agreement
restraining the city's right to temporarily assign employees to
fill in for absent employees, the city was within its standard
Interpreting the collective bargaining
agreement to restrain
the city's authority to temporarily assign the grievant to the
landfill would render its provisions meaningless, and lead to
absurd and nonsensical results.
The temporary assignment was not the rotation of shifts, such
that the union's argument regarding section 18.01 is without merit.
As that provision is written, temporarily assigning an employee to
fill in for an absent employee does not constitute rotating an
employee from shift to shift. The slight difference in hours
between the grievant's normal position and the relief landfill
position does not constitute rotating an employee from shift to
Nor did the temporary assignment constitute
of a new shift, which would have required the city to provide two
weeks' notice. Assigning an employee to cover a position due to
another employee's absence is not establishing a new shift. This
language is not ambiguous and must be applied as written. The
establishment of a new shift occurs when the city sets new general
working hours for an entire group of employees in a specific job
classification; it does not occur when the city assigns an employee
to cover on a different but already established shift. When the
city established the landfill position, it provided the two-week
notice. The city does not "re-establish" the shift every time it
assigns an employee to cover a position.
The temporary assignment of employees to
fill in as relief for
vacationing or sick employees does not violate the collective
bargaining agreement provision relating to normal work week.
The city's assignment of the grievant to
work one week as a
fill in for a vacationing employees was consistent with the city's
Finally, even if there was a technical
violation of the
collective bargaining agreement, the violation did not damage the
grievant and he is not entitled to a remedy.
Accordingly, the grievance should be
For five days in early April 2000, the city assigned Wade
Leach to staff the landfill rather than perform his normal duties
as an equipment operator. Because this relief work at the landfill
had a different work schedule than Leach's normal shift of 7:00
a.m. to 3 p.m., the union claimed the assignment violated one or
more provisions of the collective bargaining agreement relating to
hours of work.
The explicit terms of the collective bargaining agreement
provide that an employee with a permanent assignment to a set shift
"shall not be rotated from shift to shift." The collective
bargaining agreement also requires that when the city "decides to
establish a new shift," it will give two weeks' notice of its
intent, "unless the Union agrees to waive such two-week notice."
The union claims that the temporary reassignment of Leach to the
landfill for the period April 3-7 violated both the provision
regarding the two-week notice for establishing a new shift, and the
provision against being "rotated from shift to shift."
Apart from the two provisions on which the union relies, the
city enjoys certain residual management rights, which it may
exercise subject only to the terms of the working agreement and
applicable law. These rights include the rights to "direct all
operations of the city establish schedules of work schedule
and assign employees maintain efficiency of city operations
determine the methods, means and personnel by which city operations
are to be conducted, and to take whatever actions are reasonably
necessary to carry out the functions of the city" in exigent
The union has quoted at length my award in Columbia County
(Highway Department), MA-8640, 8653 (1995), in which I sustained a
grievance over the employer's unilateral alteration of an
employee's work schedule. Other than a similarity of topic
(changes in shifts/hours), I do not find that this earlier case has
much persuasive value in the matter before me now.
In Columbia County, the parties had mutually agreed to modify
an employee's work schedule from that stated in the collective
bargaining agreement to accommodate his physical condition
following a work-related injury. Because the union and the
employee participated in, and concurred in, the modification, I
found that "the altered work day and work week did not constitute
a violation of the collective bargaining agreement." Subsequently,
however, the employer unilaterally changed both the work hours and
work week from that which the parties had agreed to. It was this
action which I found to violate the collective bargaining
agreement. Given the dissimilarities in contract language and
facts, the Columbia County case has no significant persuasive force
in the case currently before me.
The union contends that the city's action in this regard
constituted establishing a new shift, contrary to the terms of
18.01(J). Indeed, setting the work week and work hours at the
landfill as something other than Monday-Friday, 7:00 a.m. to 3:30
p.m. (with a break from 11:00 to 11:30) did constitute the
establishment of a new shift. However, the city did not take this
action contemporaneously with the assignment of Leach, but rather
established the new shift in September 1999. As the record clearly
shows, the city informed the union of its intent to establish a new
schedule for the landfill a full month before the effective date.
While the union immediately grieved the matter, it did not pursue
the grievance to any further steps beyond the Public Works
Director's denial. By the time of Leach's assignment to the
the unique work week and work hours for the landfill were seven
months old. Accordingly, the employer's action did not constitute
establishing a new shift, such that it would have been required to
provide two weeks' notice to the union.
I turn now to the union's contention that by assigning Leach
to the landfill for one week, the city violated the terms of the
collective bargaining agreement which protect an employee from
being "rotated from shift to shift." Leach does have a permanent
assignment to a set shift, and thus cannot be "rotated from shift
to shift." Stating that fact, however, does not resolve this
As I read and understand the plain language of 18.01-I, there
clearly is a restriction on the schedule that the city can assign
to an employee who, like Leach, had permanently been assigned to
one of the standard shifts. The critical questions are, (a), what
constitutes being "rotated from shift to shift," and (b), what is
the relationship between that restriction and the city's broad
rights under Article 3 to direct all operations, schedule and
assign employees, maintain efficiency of operations, take actions
necessary to comply with state and federal law, subcontract, and
determine the personnel by which its operations are to be
On its face, the phrase "rotate from shift to shift" indicates
a continuing, or at least successive, nature of reassignment. For
example, the collective bargaining agreement provides for multiple
shifts for the Central Equipment Division and Street Division;
clearly, the employer could not assign an employee who was
permanently assigned to a particular shift a work schedule that
consisted of the 3:30 p.m. to 7:30 p.m. shift one week, the 4:00
a.m. to 8 a.m. shift the next, the 8:00 p.m. to midnight shift the
following week, and so on.
But the union maintains this language does more, and "protects
the grievant from being rotated to another work shift." The record
does not contain evidence of bargaining history or conclusive past
practice to support the conclusion that the phrase "rotated from
shift to shift" also includes a single, temporary reassignment to
a different shift, such as the union appears to be arguing. While
such evidence may exist and be presented in future proceedings, it
was not made a part of this record.
The union asserts that the collective bargaining agreement
gives to represented workers the "fundamental right" to a "two-week
notice before their work shift is changed by the City." That is
not how I read the language of sections 18.01 (I) and (J). There
is no question but that the collective bargaining agreement
prevents the city, in the absence of waiver from the union, of
establishing a new shift with less than two weeks' notice.
However, the union's case herein mistakenly merges the concepts of
establishing a new shift with assigning a different employee
The language of the collective bargaining agreement provides
that workers with permanent shift assignments "shall not be rotated
from shift to shift." This is an important protection, and nothing
in this award should be construed as minimizing the validity or
value of this provision, as noted above. The grievant, however,
was not "rotated from shift to shift." Instead, he was given a
temporary reassignment, albeit one with different hours. Upon the
completion of that limited-term assignment, he returned to his
normal assignment and hours. Given the city's residual rights,
there is simply not the record evidence -- either in terms of
bargaining history or contract administration to support a
conclusion that the contractual ban on employees being "rotated
from shift to shift" also serves to prevent the employer from
making a temporary reassignment of limited duration for the purpose
of providing a vital public service. By its actions, the city did
not violate section 18.01(I) of the collective bargaining
Leach's co-worker exercised his contractual right to vacation.
Consistent with its responsibilities to protect the public health,
safety and welfare, the city was required to keep the landfill open
in his absence. Owing to certain regulatory and licensure
standards, only Leach and one other worker were qualified to serve
in this capacity. The city temporarily assigned Leach, the less
senior of the two, to do the duty. The fact that the city gave him
less than two weeks' notice indeed, gave him notice on Friday for
a Monday assignment does not speak well of the city's management
in this affair or its attention to scheduling detail, and makes
understandable Leach's sense of being aggrieved. However, given
that the assignment was to an existing shift even though it was
not Leach's shift -- the lack of two weeks' notice did not violate
section 18.01(J) of the collective bargaining agreement.
Accordingly, on the basis of the collective bargaining
agreement, the record evidence and the arguments of the parties, it
That the grievance is denied.
Dated at Madison, Wisconsin this 7th day of February, 2001.
Stuart Levitan, Arbitrator