BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 796, AFL-CIO
CITY OF OSHKOSH
Mr. Rick Badger, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Davis & Kuelthau, S.C., by Mr. William G. Bracken and Mr.
Tony J. Renning, on behalf of the City.
The above-captioned parties, herein "Union" and "City", are
signatories to a collective bargaining agreement providing for
final and binding arbitration. Pursuant thereto, hearing was held
in Oshkosh, Wisconsin, on September 25, 2000. The hearing was
transcribed and the parties thereafter filed briefs and reply
briefs that were received by December 6, 2000.
Based upon the entire record and arguments of the parties, I
issue the following Award.
Since the parties were unable to jointly agree on the issue,
I have framed it as follows:
Did the City violate Article XVII of the contract when it did
not select grievant Gregory Postl for the Equipment Operator II
position and, if so, what is the appropriate remedy?
Grievant Postl works as a bus operator in the City's Transit
Department. He in 1999 and 2000 bid for posted Equipment Operator
II positions in the City's Department of Public Works, only to be
turned down because he did not have two years prior experience in
the construction business as required under the job postings. The
February 2, 2000, posting and accompanying job description (Joint
Exhibits 5 and 8) which are the subject of his grievance --
NATURE OF WORK
This is skilled work in the operation of light and medium duty
automotive maintenance and construction equipment. Work involves
responsibility for the safe and efficient operation of equipment
with moderately complex operating requirements which require
manipulative skill to operate.
Operation of assigned equipment is
normally a full-time or
predominate task although other work is performed. Assignments are
usually received in the form of orders to accomplish a specific
task, pick-up and deliver material or personnel, or drive according
to an established route. Work is performed independently, but
under the supervision of a foreman or assigned crew leader, and is
reviewed through observation by a Supervisor during progress and
upon completion considering results attained.
EXAMPLES OF WORK
Operates Single Axle and Tandem Axle trucks (with and
snow plowing attachments), Combination units, and Tanker units
hauling excavation/construction materials, snow, and branches and
leaf/grass debris. May operate Vac-All trucks, Jet-Vac trucks,
Sewer Steaming equipment, Water Pumps, Power Rodders, small and
medium Hydraulic Excavators, Street Sweepers, Flushers, light and
medium duty End Loaders, Asphalt Pavers, Melter Applicators, light
and heavy Rollers, Road Oilers, Air Compressors, Concrete Breakers,
Mixers, Routers, Chain Saws, Concrete Saws, Compactors, Power
Concrete Screeds, Mud-Jacking equipment, Leaf Pickers, Brush
Chippers, Tractors, Mowers, and similar equipment. Makes minor
adjustments and repairs to equipment including checking and
changing tires, checking fluid levels, fuel and oil, and other
safety equipment, and reports discrepancies to supervisory
Assists in snow plowing and removal, street sanding operations,
builds and repairs manholes and catch basins, lays sewer pipe,
assists with street construction and repairs including forming and
grading, pouring and finishing concrete, asphalt work, and other
miscellaneous street work as it is assigned.
REQUIRED KNOWLEDGE, ABILITIES, AND SKILLS
Through knowledge of automotive
equipment operation including
possession of a valid Class "A" Commercial Driver's License with
Air Brake, Tanker, and Combination Unit endorsements.
Ability to make minor repairs and
adjustments to assigned
Ability to perform assigned tasks in an
efficient and timely
manner with minimum supervision, and with sufficient skill to
recognize potential problems or difficult situations that require
further supervisory instruction or consent.
Familiarity of road construction supplies
used to repair and
maintain asphalt and concrete streets, roads, sidewalks, curbing,
and sewer manholes and inlets.
Thorough awareness of material(s) safety
data and the use and
handling compliance requirement specifications.
Ability to work in adverse or hazardous
OTHER SIGNIFICANT WORK SITE
1 - Ability to do ladder work 12 feet
2- Minimum grip required to operate
standard repair and
fabrication tools and machines;
a) As many as six steps
b) Open and close
doors; push, pull and manipulate large
items like heavy duty equipment tires and parts;
c) Stick shift
d) Lift fifty (50) pounds;
e) Up to 32-inch steering wheel/up to
4- Overhead work.
5- Work in crouching or supine
REQUIRED EDUCATION AND
High School Diploma or Equivalent
Two years construction in the construction
motorized construction or maintenance equipment.
Valid Commercial Driver's License with
Air Brake, Tanker, and
Combination Unit endorsements.
That February 2, 2000, posting was awarded to outside applicant Dan
Parks maintenance worker Keith Vierola formerly worked as an
Equipment Operator I and Construction Crewman in the Street
Department. He testified that two employees who transferred from
the Transit Department to the Street Department after 1993 did not
have two years' construction experience and that the 30-day
probationary period in the past had been extended up to six months.
On cross-examination, he said that the Equipment Operator I
position has been unfilled for about the last ten years and that
the Laborer position has also been unfilled for some time.
Grievant Postl, a bus operator for three years, testified
about his past experiences which included driving a truck; being in
the military and serving in Project Desert Storm; and operating a
forklift. He said that he wants to transfer to the Street
Department because it involves a 41 cent an hour raise and driving
a truck; that he has the applicable driving licenses required for
the Equipment Operator II position; that he in the past "helped
some people out laying cement","doing a couple of garage floors",
and laying out a driveway; that he has taken safety training as a
bus driver; and that he can work from a 12-foot ladder; that he can
open and close doors; that he can use a stick shift; that he can
lift over 50 pounds; that he can perform overhead work; and that he
can do crouching work. He is now taking an engineering
On cross-examination, Postl testified that there is no
reference to construction work in his initial job application for
employment with the City (Joint Exhibit 7); that he does not have
any experience laying asphalt; that he does have the mechanical
ability to fix a truck; and that he has had no experience in
building or fixing manholes, in grading and setting cement work, in
erecting forms for a sidewalk curve, in working on curbs or
gutters, or in laying sewer pipe. Referring to "Examples of Work"
on the job posting, he also said that he has never operated a
Vac-All truck, a backhoe, sewer steaming equipment, water pump,
power rodders, hydraulic excavators, street sweepers, flushers,
light and medium-duty end loaders, asphalt pavers, melter
applicators, light and heavy rollers, road oilers, concrete
breakers, mixers, routers, concrete saw, compactors, power concrete
screeds, mud-jacking equipment, leaf pickers, or brush chippers.
Personnel Assistant/Safety Officer Evonne Molinski testified
that Postl's application for the Equipment Operator II position did
not refer to any construction experience. She also said that the
job notice (Exhibit 8), was posted in City facilities and that the
Equipment Operator II job description (Exhibit 5), was attached to
it; that the construction requirement for that position was added
in 1993 because the "Street Department was having more and more
difficulty trying to get their jobs done with employees when they
have to take time to train them"; and that the City does not have
an official training program. She added that the contract on page
16 refers to a 30-working day "trial period" which enables the City
to "look at their work record and seniority, and if those match,
then we can give them the 30-day trial period to prove that they
can do the job." She also said that the 30-day period does not
enable an employee to become qualified and explained that two
employees from the Sanitation Department Jerry Sitter and
Michelle Briquelet - were awarded Equipment Operator II positions
even though they did not have two years construction experience
because that was the settlement of their grievances. Those
settlements also provided that certain grandfathered Sanitation
Department employees could post for the Equipment Operator II
position for a five-year period even though they may lack two years
of construction experience.
Molinski said that Postl was the only internal candidate for
the February 2, 2000, posting (which he grieved), and that he was
turned down because he lacked the required construction experience,
which was why he was not even interviewed for that position. Postl
subsequently bid for the same position when it was reposted in
April and June, 2000 (Joint Exhibits 12 and 14), and he again was
turned down because of his lack of prior construction experience.
On cross-examination, Molinski said that Equipment Operator II's
"Rarely" work with masonry or cement block and that she did not
recall what kind of prior construction experience successful
applicants McCollian, Brian Klug, and Eric Schroeder had.
Superintendent of Streets and Sanitation William Rasmussen
testified, "We don't have anybody in . . ." the Laborer and
Equipment Operator I positions and that the requirement for two
years construction experience was added to the job description in
1993 "Because we needed to bring over people that were trained and
were able to do the job when they got on board."
He also said that "during the construction season" employees
perform concrete or asphalt work "probably 80 percent of the time";
that "You have to have some training for
that"; that "the 30-day period is set up so that we can assess the
individual, assuming they have the knowledge and know-how to do the
job"; that employees must possess the requisite qualifications
before being awarded the job; and that the 30-day period is a two-way street because
employees can return to their prior positions
during that time if they want to and because the City can similarly
return employees to their former positions if it decides to do so.
He also said that Postl's past experience on construction projects
He added that McCollian - who was awarded the disputed
February 2, 2000 posting - had two years prior construction
experience because he had worked with Miller Masonry which does
concrete blocks and cement work and because he had operated
forklifts, Bobcats, and done some tractor loader work. He stated
that Schroeder - who was awarded a subsequent posting - had prior
construction experience because he had operated a ready-mix truck
with Murphy Concrete; because he had about 15 years experience in
forming and pouring finished concrete; and because he had worked
about 13 years on heavy equipment. Rasmussen said that Klug, who
also was awarded a latter posting, was qualified because he
previously had worked at Michael's Pipeline where he operated
different equipment such as a trencher tractor, loaders and
Bobcats. He added that applicants need prior construction
experience because "if we are going to spend our time training we
don't have then we're not going to get our work done. . ." and
because "we've got a short window that we have to get all of our
concrete patching and our blacktop in . . ."
On cross-examination, he said that the blacktop and concrete
crews are headed by working foremen who "lead the other people";
that none of the three recent hires - McCollian, Klug and Schroeder
- can operate all of the equipment listed in the Equipment Operator
II's job description; and that none of them had prior experience
working on all that equipment before they were hired.
Robert S. Horton, the Assistant Superintendent of Streets and
Sanitation, testified about the grievance settlements involving
Sitter and Briquelet (Joint Exhibits 3 and 4), which enabled them
and certain other grandfathered Sanitation Department employees to
bid for the Equipment Operator II positions even though they did
not have two years' prior construction experience. He explained
that Sanitation Department employees have had preferential
treatment when it comes to transferring to "a sister department"
and that the settlements provided for a six-month probationary
period because employees needed that extra time to prove themselves
over the winter when there is little construction work. He also
said that Sitter did not meet the criteria and that he was moved
back into the Sanitation Department from where he came.
On cross-examination, he said that the issue of Transit
Department employees moving into the Streets Department never was
discussed when the Sitter and Briquelet grievances were settled.
Vierola was recalled as a witness and said that the City did
not like the former process which allowed Sanitation Department
employees to transfer to the Streets Department and that is why the
six-month probationary period was established for them in the
settlement of the Sitter and Briquelet grievances.
POSITIONS OF THE PARTIES
The Union contends that the City violated Article XVII of the
contract when it refused to award the Equipment Operator II
position to Postl and when it therefore refused to allow Postl to
serve a 30-day trial period. It argues that he "is well qualified
for the Equipment Operator II position" because his "military and
other life experiences should be considered equivalent to two years
of experience in the construction field"; that "construction work
is not the primary duty of most Equipment Operator II's"; and that
the Briquelet and Sitter settlements "do not apply to this matter."
The Union also claims that the minimum qualifications for the
Equipment Operator II position "do not reasonably relate to job
duties"; that the two-year construction experience requirement
"should emphasize the operation of equipment" and that Postl has
had experience in operating equipment; and that the City has
"allowed employees with far fewer qualifications than Mr. Postl to
post into E.O. II positions." As a remedy, the Union asks that
Postl be awarded the position and that he be made whole for any
loss of monies he has suffered because of his not receiving the
The City contends that it did not violate the contract because
it has the right to establish minimum qualifications for a job and
to determine whether a job applicant possesses the "requisite
qualifications"; because Postl does not possess the minimum
qualifications for the Equipment Operator II position; because
minimum qualifications "cannot be demonstrated by a training or
trial period"; and because no past practice requires the City to
award the Equipment Operator II position "to the grievant despite
his lack of qualifications." The City also maintains that the
requirement for two years' construction experience cannot be
replaced by "equivalent experience" and that "construction work is
a primary duty of the Equipment Operator II position."
The City is correct in pointing out that it has the right to
establish minimum job qualifications pursuant to Article I of the
contract, entitled "Management Rights", which gives it the right
"to manage its own affairs" and that it also has the right to
determine whether a job applicant has met those qualifications.
The Union asserts that the City nevertheless was required to
grant Postl a 30-day trial period pursuant to Article XVII of the
contract, entitled "New Jobs-Vacancies", which provides:
. . .
A vacancy shall be defined as a job opening not previously
existing in the Table of Organization or a job opening created by
termination, promotion or transfer of existing personnel when the
job continues to exist in the Table of Organization. A steward
shall be present during interviews with employees seeking
All non-supervisory vacancies shall be posted on the bulletin
board of the Public Works and Parks Department and such notice
shall be posted five (5) working days before the vacancy is filled.
Employees wanting such posted jobs shall sign the posted notice.
The employee shall be selected on the basis of seniority, work
record and qualifications. In the event an official training
program has been conducted for a given position successful
completion of the course will be the qualifying factor for
promotion. Said employee shall demonstrate his ability to perform
the job posted within thirty (30) working days and if deemed
qualified by the employer shall be permanently assigned the job.
Should such employee not qualify or should
he desire to return
to his former job, he shall be reassigned to his former job without
loss of seniority.
That 30-day period, however, only kicks in after an employee
has met the requisite job qualifications. Personnel Assistant
Molinski and Superintendent Rasmussen both testified to that effect
and there is nothing in the record showing that unqualified
employees are still entitled to a trial period.
The Union also claims that the City's requirement for two
years' construction experience is unreasonable because it does not
"reasonably relate to actual job duties" and that construction work
is not an Equipment Operator II's primary duty. I disagree. For
while it is true that some parts of the Equipment Operator II's
duties are fairly routine and that there can be considerable
driving, Rasmussen testified without contradiction that Equipment
Operator II's during construction season spend about 80 percent of
their time on concrete and asphalt work. In addition, Rasmussen
testified without contradiction that the City does not have the
luxury of training new employees given the City's tight
construction schedule. That is why, he said, job applicants need
some prior construction experience. The City therefore is right on
the mark when it states that the deletion of the Laborer and
Equipment Operator I positions now makes it impossible for the City
to "progressively train individuals who transfer into the Public
Works Department. . ." and why it "needs employees who can perform
the job from the first day of employment." Given all this, I
conclude that the City's job requirements were reasonable.
Moreover, Postl was unqualified even if his "life experiences"
are considered since there is very little in those experiences
showing that Postl has a working knowledge of construction and the
various tasks that Street Department employees must perform without
prior training. And, while the Union correctly points out that
McCollium, Schroeder and Klug do not know how to operate all of the
City's equipment and that their prior experience did not cover all
aspects of construction work, all three nevertheless had some prior
construction experience with Miller Masonry, Murphy Concrete, and
Michael's Pipeline which gave them far more construction experience
than Postl. That is why they could fit in immediately and why
Postl could not.
Indeed, Postl's own grievance (Joint Exhibit 2), states that
he "meets most of the qualifications. . .", thereby acknowledging
that he does not possess all of the required qualifications. Postl
also acknowledged that he has never operated many of the equipment
pieces listed on the job description, i.e. a Vac-All truck, a
backhoe, sewer steaming equipment, water pumps, power rodders,
hydraulic excavators, street sweepers, flushers, end loaders,
asphalt pavers, meter applicators, rollers, road oilers, concrete
breakers, mixers, routers, concrete saws, compactors, power
concrete screeds, mud-jacking equipment, leaf pickers or brush
chippers. In addition, Postl's Application for Employment with the
City does not list any prior construction experience (Joint Exhibit
It is true, as the Union correctly points out, that the City
hired Sanitation Department employees Sitter and Briquelet as
Equipment Operator II's even though they had no prior construction
experience. Those slots, however, were filled pursuant to
settlement agreements that expressly stated: "The provisions of
this agreement shall not be precedential and shall not be used in
any other form including grievance arbitration. . ." (Joint
Exhibits 4 and 5). Given that caveat and the fact that parties
settle grievances for all kinds of reasons, no weight can be given
to the Sitter and Briquelet situations.
In light of the above, it is my
1. That the City did not violate Article XVII of the
contract when it failed to award the Equipment Operator II
position to grievant Gregory Postl.
2. That the grievance is hereby denied.
Dated at Madison, Wisconsin this 1st day of March, 2001.
Amedeo Greco, Arbitrator