BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MENASHA CITY EMPLOYEES
LOCAL 1035, AFSCME, AFL-CIO
CITY OF MENASHA
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of Menasha City Employees Local 1035, AFSCME,
Davis & Kuelthau, S.C., Attorneys at Law, by Mr. James R.
Macy, on behalf of the City of Menasha.
Menasha City Employees Local 1035, AFSCME, AFL-CIO,
hereinafter the Union, and the City of Menasha, hereinafter the
City, jointly requested that the Wisconsin Employment Relations
Commission appoint a staff arbitrator, David E. Shaw, to hear and
decide the instant dispute between the Union and the City, in
accordance with the grievance and arbitration procedures contained
in the parties' labor agreement. The undersigned was designated to
arbitrate in the dispute and hearing was held before the
undersigned on September 21, 2000, in Menasha, Wisconsin. A
stenographic transcript was made of the hearing and the parties
submitted post-hearing briefs in the matter by December 6, 2000.
Based upon the evidence and the arguments of the parties, the
undersigned makes and issues the following Award.
The parties were unable to agree on a statement of the
The Union would phrase the issue as:
"Did the city violate the collective bargaining agreement when
it permanently assigned a seasonal park laborer to Jefferson Park?
If so, what is the remedy?"
The City would frame the issue as follows:
"Did the City violate Article II, Section A, of the Collective
Bargaining Agreement when it assigned a Seasonal Park Laborer for
duties at Jefferson Park? If so, what is the appropriate remedy?"
The Arbitrator frames the issue as being:
"Did the City violate the Collective Bargaining Agreement when
it assigned a Seasonal Park Laborer to Jefferson Park? If so, what
is the appropriate remedy?"
The City also raises an issue as to whether the grievance must
be denied for failure to comply with the contractual requirements
in the grievance procedure.
The following provisions of the parties' 1998-2000 Collective
Bargaining Agreement are cited:
ARTICLE II MANAGEMENT RIGHTS
A. General: Unless as otherwise herein
provided, the management
of the work and the direction of the working forces, including
but not limited to, the right to hire, promote, demote,
suspend or otherwise discharge for proper cause, and the right
to relieve employees from duty because of lack of work or
other legitimate reason is vested exclusively in the Employer.
. . .
ARTICLE XV GRIEVANCE AND ARBITRATION
B. Subject Matter: Only one subject
matter shall be covered in
any one grievance. A written grievance shall contain the name
and position of the grievant, a clear and concise statement of
the grievance, the issue involved, the relief sought, the date
the incident or violation took place, the specific section of
the Agreement alleged to have been violated and the signature
of the grievant and the date. Matters involving a union
grievance shall be signed and processed by a Union officer or
. . .
. . .
6. Decision of the Arbitrator:
The powers of the Arbitrator
are limited as follows: Its (sic) function is limited to
that of interpreting and applying the provisions of this
Agreement. It shall have no power to add to, subtract
from or modify any of the terms of this Agreement. The
decision of the Arbitrator shall be rendered promptly
following the hearing and if exercised in accordance with
the terms of this Agreement and consistent with federal,
state and local laws, shall be final and binding upon
. . .
Hourly Paid Employees
. . .
Asst. Mechanic/Pool Maintenance
Seasonal Park Laborer
. . .
A new employee who is hired as a Common Laborer or a Park
Laborer shall be reclassified as a Truck Driver or Park Caretaker
after a maximum of two (2) years as a Laborer.
An employee who posts into the position of
Common Laborer or
Park Laborer shall be reclassified as a Truck Driver or Park
Caretaker after a maximum of six (6) months as a Laborer.
The City maintains and operates a Park Department and owns and
maintains a number of parks and areas located within the City's
limits. The Union is the exclusive collective bargaining
representative for "all regular full-time, regular part-time and
regular seasonal employees in the Department of Public Works, Park
Department and Bridge Department in classifications listed on
Appendix "A" of the parties' Agreement includes the following
classifications and payrates in the Parks Department: Park
Caretaker ($16.49); Park Laborer ($15.92); and Seasonal Park
Laborer ($15.92). Under the parties' Agreement, an employee who
posts into the Park Laborer position will automatically be
reclassified as a Park Caretaker after a maximum of six months,
while a person hired into the Park Laborer position will be
automatically reclassified as a Park Caretaker after a maximum of
two years. Employees in the Seasonal Park Laborer position, while
paid the same rate and performing the same duties as a Park
Laborer, do not automatically progress to the Park Caretaker
position. The duties and qualifications set forth in the job
descriptions for the Seasonal Park Laborer, Park Laborer and Park
Caretaker positions are identical, with the exception that the
Seasonal Park Laborer position generally begins in April and ends
in November and therefore does not include duties related to
maintaining ice rinks.
The instant case involves the assignment of the Seasonal Park
Laborer, rather than a Park Caretaker, to work in Jefferson Park in
June of 1999. The Union grieved the assignment as violative of the
Agreement and past practice.
The grievance was first discussed orally between Union
President, William Bojarski, and Superintendent of Parks, Forestry
and Cemeteries, Lawrence Buck, and then submitted in writing. The
written grievance stated the "applicable violation" as follows,
"ARTICLE II, A; PAST PRACTICE." As relief it requested, "CEASE AND
DESIST FROM VIOLATION OF CONTRACT AND PAST PRACTICE." The written
response of the Director of Parks and Recreation, Brian Tungate,
denying the grievance at Step 3, stated, in relevant part:
"Management's right to direct the work
force is clearly stated
in Article II.A. of the collective bargaining agreement. I know of
no past practice that would in any way limit a supervisor's ability
to assign a seasonal person to a particular work site."
The parties were unable to resolve their dispute and
to arbitrate the grievance before the undersigned.
POSITIONS OF THE PARTIES
The Union takes the position that the City has always assigned
Park Caretakers to major parks, such as Jefferson, and that
therefore the City violated past practice, as well as the
Agreement, when it assigned a lower classification employee
(Seasonal Park Laborer) to a position previously filled by a higher
classification year-round employee (Park Caretaker). The Union
requests that the City cease and desist from assigning the seasonal
employee to Jefferson Park and suggests that the City reclassify
the Seasonal Park Laborer as a Park Caretaker if it wishes to
permanently assign that individual to Jefferson Park. The Union,
however, does not challenge the right of the City to assign
whichever Park Caretakers it desires to the major parks.
In the past only Park Caretakers have been assigned to major
parks such as Jefferson, and no Seasonal Park Laborer has ever been
assigned the duties of maintaining one of the major parks. In that
regard, the Union notes that there are three primary
classifications of park maintenance workers Seasonal Park
Laborer, Park Laborer and Park Caretaker. According to their job
descriptions, all three positions are assigned similar duties.
However, for career progression, one must first be a Park Laborer
before becoming a Park Caretaker. This progression suggests that
Park Laborers become more proficient in their duties over a period
of time and that therefore Park Caretakers are expected to handle
the increased responsibility of maintaining a major park. In light
of that, it is understandable why the City has never assigned an
entry-level Seasonal Park Laborer to a major park.
The Union asserts that it is generally understood that
employers should not be allowed to assign lower classification
employees to higher classification work without compensation, as to
do so would defeat the classification system. While the similarity
of the job descriptions amongst the classifications might seem to
suggest that the positions are interchangeable, past practice
suggests that is not the case. The Union urges the Arbitrator to
recognize the practice of only assigning Park Caretakers to the
City's major parks, and consider the classification and pay
differences between a Seasonal Park Laborer and a Park Caretaker.
The Union cites the
testimony of the Union's Vice-President that there has always been
a Park Caretaker assigned to be in charge of the park as long as he
has been in the Department. In this case, the Park Caretaker
assigned to Jefferson Park told his supervisor that he did not like
it there, and he was assigned out of that park. At that point the
Seasonal Park Laborer was assigned to the park. However, while
there is a difference in pay between the two positions, unlike in
the Streets Department, there is no provision for higher pay when
doing the work of a higher-paid classification in Parks. Thus, the
City is getting the higher-paid Park Caretaker work performed for
lesser pay. The Union also cites the testimony of the Union's
President as showing that being assigned to a major park requires
more from the park employee than other park assignments, in that it
requires overseeing the summer help and making sure the work is
While the City may claim that at least once in the past 25
years it assigned an employee to Jefferson Park who was laid off
during the winter months, that situation did not establish a past
practice, since it was a year-round Park Caretaker who voluntarily
accepted layoff. This differs from a Seasonal Park Laborer who is
involuntarily laid off for the winter months.
Last, it is unfair to the Seasonal Park Laborer to assign him
to perform the work of a higher-paid position. The Union is
attempting to enforce the established classification and pay
structure the parties have negotiated over the years. In that
time, the Union has always maintained that the laborer positions
are "entry-level" positions, and that the caretaker position is
reserved for more senior employees based on experience and
responsibilities. It is self-evident that maintaining a major park
requires more experience, and entails greater responsibility in
performing general park duties. Park Caretakers must work with the
summer help and the general public to a greater extent and must
answer to the Park Superintendent if the park is not maintained to
his expectations. While the City has the unilateral right to
assign whichever caretaker it desires to any particular park, that
right does not extend to assigning seasonal laborers to that work.
The Seasonal Park Laborer has no guarantee of ever becoming a Park
Caretaker. It is therefore unfair to that employee, and to the
Union, to permanently assign that lower-paid individual to a
position consistently performed by higher-paid Park Caretakers. It
is unfair to the Seasonal Park Laborer as he does not receive the
same wages everyone else assigned to a major park receives. The
Union is harmed in that if the City is permitted to assign lower-paid laborers to the caretaker
assignments, it would disrupt the
established negotiated classification system currently in place.
In its reply brief, the Union takes issue with three points
raised in the City's brief. First, the City's attempt to have the
grievance dismissed on a technical flaw should be rejected. While
the grievance could have been written more clearly, it is clear
that through the entire grievance process, the City understood the
nature of the grievance and only at hearing did it make any claim
that it believed there was a technical flaw. Arbitrators have held
that clear notice must be given if a party intends to insist on
strict compliance with previously-ignored
procedural requirements. Whiteway Stamping Company, 41 LA 966, 968
(Kates, 1963). Second, the management rights provision of the
Agreement cannot be interpreted to permit the City to permanently
assign a lower-classification employee to perform higher-classification work. The issue in
this case is not whether the
City has the right to make work assignments, but instead whether it
has the right to assign a lower-classification employee to higher-classification work. It is
nonsense to argue that since the
Agreement does not specifically restrict the City from permanently
assigning seasonal laborers to year-round caretaker positions, the
City must have reserved that right. Such reasoning would result in
nullifying the entire classification system by permitting the City
to hire employees at the laborer rate to perform higher-paid
caretaker work, contrary to what the parties intended when they
bargained the wages for the various classifications. Third, the
Union again disputes that there is any past practice of permanently
assigning seasonal employees to major parks. The record shows that
the employee assigned to Jefferson Park in 1973 was a full-time
employee who chose to take voluntary layoffs, and the Seasonal Park
Laborer was temporarily assigned to the Koslow/Clovis Park area
before it was considered to be a "major park" like Jefferson.
Thus, there has been no situation where a seasonal employee was
ever permanently assigned to a major park such as Jefferson.
Further, the Union never "consented" to having seasonal laborers
permanently assigned to major parks. The argument that somehow a
practice now exists because the parties agreed to upgrade one of
the two seasonal employees during the last round of bargaining is
not supported by the facts. While the parties did agree to
upgrade a Seasonal Park Laborer, Glenn Pemrich, to a year-round
position, that had nothing to do with permanently assigning
seasonal employees to major parks. This is confirmed by the
testimony of the Union Vice-President Agen, that this issue was
never contemplated in negotiations, much less discussed. Also, the
argument that the Union should be required to bargain the issue of
permanently assigning seasonal laborers to major parks is
incorrect. Since there is no past practice and no bargaining
history supporting the claimed acquiescence of the Union, it is the
City who should address the issue in bargaining. Until then, the
status quo remains assigning only
year-round caretakers to major
parks. The Union requests that the grievance be sustained and that
the City cease and desist from assigning the Seasonal Park Laborer
to Jefferson Park or else reclassify that employee as a year-round
The City first asserts that since the written grievance did
not state the applicable violation in a clear and concise language,
as required by the Agreement, the City is denied the ability to
effectively defend itself and thereby denied due process. The
Agreement requires that "A written grievance shall contain. . .a
clear and concise statement of the grievance, the issues involved.
. ." The written grievance listed the applicable violations as
"Article II(A); Past Practice." As no position was even stated,
much less in clear and concise language, it must be determined that
the Union does not have the ability to now state a violation upon
which relief can be granted. Further, at hearing the Union was
unable to point to any actual conduct upon which relief could be
granted. Thus, there is now no actionable grievance in front of
By the express terms of the Agreement, the Arbitrator cannot
add to, subtract from, or modify any terms of the Agreement. At
hearing, the Union suggested that the Arbitrator grant them a
limitation upon the City's assignment authority and grant pay
beyond that set forth in the Agreement, yet such a position was
never set forth during the processing of the grievance. The parties
intended to write language which would lend itself to resolving
disputes at the earliest level and the language requiring
grievances to include notice of provisions allegedly violated and
a clear and concise statement as to the alleged violation
demonstrates that intent. Failure to follow contractual
requirements totally eliminates that negotiated intent. To allow
such grievances to proceed would require adding to the contract and
along with eliminating the negotiated language, would itself
violate the Agreement. Thus, the grievance should be denied.
Without waiving the foregoing arguments, the City asserts that
the clear and unambiguous language of the management rights clause
in the Agreement provides the City with the discretion to assign a
Seasonal Park Laborer to Jefferson Park. If language of an
Agreement is clear and unequivocal, it should not be given a
meaning other than that expressed, and must be enforced even though
the result may be harsh or contrary to the original expectations of
one of the parties. National Linen Services, 95 LA 829, 834
The language of the Agreement clearly states that the
Arbitrator "shall have no power to add to, subtract from, or modify
any of the terms of the Agreement." Further, Article II, A,
states, "The management of the work force and the direction of the
work forces. . .is vested exclusively in the Employer." There is
nothing unambiguous about that language and it was undisputed at
hearing that the City possesses wide discretion in managing its
workforce. Thus, the discretion exercised by the City in assigning
a Seasonal Park Laborer for duties at Jefferson Park deserves great
deference, absent evidence to the contrary.
The City asserts that it was not an abuse of that discretion
to assign a Seasonal Park Laborer to Jefferson Park. Historically,
the City has reserved its right to assign persons in the position
of Seasonal Park Laborer to various assigned duties within the Park
Department. The Park Superintendent arranges park work in
different work zones and the different assignments may vary from
work zone to work zone; however, no particular work zone is more
important than another. Although an employee may be primarily
assigned to a work zone, the City has reserved the right to change
work assignments at its own discretion. At hearing, the Union's
own witnesses conceded that there is no provision or clause within
the Agreement expressly prohibiting the City from making
assignments of Parks personnel to different parks. The
assignment of the Seasonal Park Laborer to Jefferson Park cannot be
seen as an abuse of this discretion on the part of the City,
because the City has the right to assign workers to different
locations in the Department, and the Union has presented no
evidence to the contrary.
Even if it is determined that the language of the Agreement is
ambiguous, both bargaining history and past practice demonstrate
that the City has historically given assignments to Seasonal Park
Laborers similar to the assignment at issue in this case. With
regard to bargaining history, the Union made a request of the City
that one of the Seasonal Park Laborer positions be made full-time,
which would ultimately allow that worker to obtain the pay of a
Park Caretaker. In response, the City made one past position full-time (8 months in Parks,
and 4 months in the Street Department).
This left a remaining Seasonal Park Laborer position. The ultimate
resolution was to grant the request that one position become full-time, but the Union dropped
the issue of an automatic increase in
pay for the Seasonal Park Laborer to that of Park Caretaker.
Throughout all of those discussions, the Union never proposed to
limit the City's right to assign Seasonal Park Laborers to any work
within the parks. A restriction on assignments, which the Union
now attempts to gain through this grievance, should be dealt with
in bargaining. The Union cannot now be permitted to restrict the
assignment of a Seasonal Park Laborer to Jefferson Park when the
Union had ample opportunity to do so in bargaining, but never
raised the issue.
As to past practice, historically the Park Superintendent has
exercised the right to assign laborers (both seasonal and not) and
caretakers within the different parks and there has never been a
distinction made between assignments just for Park Caretakers and
assignments just for Park Laborers. As early as 1973, the City has
had the practice of allowing Seasonal Park Laborers to perform
oversight functions at Jefferson Park. Since then, there have been
periodic Seasonal Park Laborers assigned to Jefferson Park and
other similar parks. In 1986, there was a Seasonal Park Laborer
assigned to the Koslow/Clovis Park area, and in the late 1990's a
Seasonal Park Laborer was assigned to Jefferson Park. Further,
historically the assignment of temporary park laborers to various
positions within the park system have been based on the employee's
ability to perform certain work, rather than on the position they
held. Until now, the Union never grieved the City's use of this
type of discretion in assigning job duties and responsibilities to
Seasonal Park Laborers. By consenting to the assignment of the
Seasonal Park Laborers to major parks over the years, the Union has
waived its right to grieve in this instance.
In its reply brief, the City reiterates its contention that
bargaining history and past practice allows the assignment of the
Seasonal Park Laborer to Jefferson Park. The argument that no
Seasonal Park Laborer has ever been assigned duties to maintain a
major park is simply not true. The Union now claims that it is
unfair to the Seasonal Park Laborer and to the Union for a Seasonal
Park Laborer to be assigned to Jefferson Park, however, it cites no
evidence, no bargaining history, no past practice and no legal
authority to support its position. The
argument is self-serving and contrary to the evidence. The
assignment of the Seasonal Park Laborer to Jefferson Park in this
case cannot now been seen as unfair as the City has maintained the
right to assign workers to different locations in the Park
Department. The Union cannot now be permitted to restrict the
assignment of the Seasonal Park Laborer when it had the opportunity
in the past to do so, but never raised the issue in bargaining.
The City concludes that the grievance should be denied.
At hearing, the City raised the issue of whether the grievance
filed in this dispute should be denied on the basis that it does
not comply with the contractual requirements that it contain a
"clear and concise statement of the grievance, the issue involved.
. ." Article XV, B.
The record in this matter indicates that the grievance was
first discussed orally at Step 1 with the Superintendent, Parks,
Forestry and Cemeteries, and subsequently submitted in writing. As
shown by the Step 3 response from the Director of Parks and
Recreation, the parties discussed the specific facts that underlie
this grievance and management was well aware of what the Union
alleges violates the parties' Agreement and past practice.
While the Agreement does state that a grievance shall contain
a "clear and concise statement" of the grievance and the issue, the
wording is directive in the sense that the remedy for such a
technical violation would be to provide clarification as to what
the Union is alleging violates the Agreement, rather than
"dismissing" the grievance itself. As the City was in fact
apprised in the course of the grievance procedure of the factual
basis of the grievance, it is concluded that the purpose and intent
of the parties with regard to Article XV, B, was satisfied.
As to the merits of the parties' dispute, three significant
points are not in dispute. First, other than the reserved rights
of management to the "management of the work and the direction of
the working forces. . ." set forth in Article II, A, the parties'
Agreement is silent on the assignment of work. Second, the
essential duties and the essential qualifications of the Seasonal
Park Laborer, Park Laborer and Park Caretaker positions are
substantially identical, even though the Park Caretaker is a
higher-paid position than the others. Third, an employee in the
Park Caretaker position does not have a contractual right to a
particular assignment within the Parks Department.
While conceding this last point, the Union argues that
historically only Park Caretakers have been "permanently assigned"
to the City's "major parks", 1/ i.e. being the person primarily
responsible for maintaining the park, including overseeing summer
1/ In this regard, the record does not
that the parties have recognized that there are "major" parks or
"permanent" assignments that are only open to certain positions,
nor how they would be distinguished from other assignments.
testimony on that point, however, is mixed at best. Long-time
Parks employee and Union President, William Bojarski, testified
that traditionally there was always a full-time park employee in
the "major" parks, that there was a seasonal position a number of
years ago and that it was eliminated for some time, then brought
back, and there has been one for the last three or four years. He
also testified that the Seasonal Park Laborer has been assigned
whatever duties needed to be done and that not only Park employees
that are assigned to a "major" park have to work with summer help.
The City's former Superintendent of Parks, Forestry and Cemeteries
(1981-2000), Lawrence Buck, testified that he was first hired as a
Park Laborer in 1973 and was assigned to work in Jefferson Park
under the direction of a "seasonal park employee." Buck could not
say whether the individual was a Park Laborer or Park Caretaker, or
whether he was a "full-time" employee who voluntarily took a layoff
each winter, only that he was a nine-month employee. However, Buck
also testified that in 1986 he had assigned a Seasonal Park Laborer
to the Koslow/Clovis Park area and that for two seasons in the
"late 1990's", he assigned a Seasonal Park Laborer to Jefferson
Park. He also testified that he had assigned then-Seasonal Park
Laborer Glenn Pemrich to the "downtown area", which he would
consider to be a "major" area.
The Union also argues that it is violative of the contractual
classifications/pay rates, as well as being "unfair", to assign the
lower-paid Seasonal Park Laborer to perform the duties of a Park
Caretaker. However, given that the positions perform the same
essential duties, that argument is not persuasive.
It is also noted that the record does not indicate any
evidence of abuse by the City in its use of Seasonal Park Laborers.
To the contrary, the evidence regarding the parties' negotiations
about the employee in one of the Seasonal Park Laborer positions
shows a willingness to discuss the Union's concerns in that regard.
Given the City's right to direct its workforce, as reserved in
Article II, A, and the absence of any expressed contractual
restriction on that right, along with the positions having
identical duties and qualifications, it is concluded that the City
did not violate the parties' Agreement when it assigned a Seasonal
Park Laborer to Jefferson Park.
Based upon the foregoing, the evidence, and the arguments of
the parties, the undersigned makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 25th day of April, 2001.
E. Shaw, Arbitrator