BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION NO. 43
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by Ms.
Andrea F. Hoeschen, on behalf of the Union.
Michael, Best & Friedrich, LLP, by Mr. Jonathan O. Levine,
on behalf of the Company.
The above-captioned parties, herein "Union" and Company", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Pleasant Prairie, Wisconsin, on February 8, 2001, at which time the parties agreed that I
retain my jurisdiction if the grievance is sustained. The hearing was transcribed and the
thereafter filed briefs that were received by May 7, 2001.
Based upon the entire record and arguments of the parties, I issue the following
The parties have agreed to the following issue:
Whether the Company violated the contract in the manner in
which it selected trainers in July,
2000, and, if so, what is the appropriate remedy?
The Company maintains a wholesale and distribution center in Pleasant Prairie,
Ever since its opening in about 1990, the Company at that location has used so-called
train new employees. At one time, there were up to about ten trainers. Now, there are only
This dispute centers on a June 16, 2000, posted notice that stated in pertinent part:
. . .
With the anticipation of the case volume increasing in the
future, the need for qualified full
time associates to train new associates for selection will be present. We will need four
start at 7:00am in grocery, four to start at 4:00pm in grocery, and four to start at 11:30pm in
perishable. All training will be done on a Mon/Tue/Wed/Thurs/Fri work schedule. Any full
associate that may be interested in becoming a trainer should contact their immediate
Employee hire date:
The start date of continuous employment with the company
following will be reviewed when considering attendance
1) How many times if
any the associate has left early when scheduled for work or
2) How often the
associate was late for work
3) If the associate has
had any no call/no show, and if so how many
4) How often the
associate has been absent
5) Total attendance
points to date
Six-week performance average: A review
of performance of the last six weeks. This review
may go farther back if performance expectations are not all meet or if associate is on a job
selection performance is not applicable.
Active discipline: If the associate has any
active disciplinary actions in their file that are still
accidents or injuries that are safety related. Any safety rule violations or
documented unsafe acts. Any safety violations that have been completed. Review of safety
with the loss prevention manager.
recommendation: The reasons given by the associates supervisor for
recommending them for selection training or the reasons for not recommending them.
While the trainer position does not pay any additional money, it is attractive to some
because of its Monday-Friday schedule and 7:00 a.m. 3:30 p.m. shift.
Several employees sought that position, including Tom Strickland. He was passed
favor of a less senior employee and the instant grievance was filed on July 11, 2000 (Joint
Union Business Agent Wesley Gable formerly worked for the Company, during
he served as a trainer. He testified that the Company then "utilized the senior trainer that
was on the
shift at that time." He also said that the Union in the last round of contract negotiations
unsuccessfully proposed contract language stating that "The Company will honor seniority
assigning trainers from these pools", and that "Employees interested in becoming certified
must sign the posting and employees to be trained will be taken by seniority from the
(Company Exhibit 1, Article 24, Section 3). He also said that when "things were relatively
between two people" in the past, seniority would apply; that the Company in the past posted
for trainers and that employees did not sign those postings; that trainers have not been made
the contractual bidding procedure; and that the parties over the years had many discussions
issue, with the Company always feeling "that they had the right to manage, and if we didn't
they would still choose them."
Chief Steward Vic Ausloss testified that he was a member of a joint
committee and that it between 1998-1999 agreed that strict seniority should prevail in
training position. On cross-examination, he said that the Company's position at that time
if two employees were equally qualified, the job would go to the most senior employee.
Chief steward Strickland, a former trainer, testified that he told his supervisor in the
of 2000 that he was interested in the disputed trainer position; that he was never contacted
position; and that his supervisor later told him that he was not disqualified for the trainer
He denied that training supervisor Andrew Freink ever told him he was not awarded the
because he had active discipline in his file. He added that he was written up for not being in
area when he was performing his duties as chief steward which he believes he has a
right to do.
Training Superintendent Freink testified that Strickland was not awarded the position
Strickland's supervisor told him Strickland was "non-cooperative"; because he had active
in his file; and because he did not perform his job well. He said that Strickland once asked
he was very busy why he was not awarded the position, but that Strickland never pursued it
became Chief Steward. He added: "When two people are equally qualified, the senior
On cross-examination, he said that he decided to "start over from scratch" when he
reorganized the training program, which is why he never tried to ascertain whether
Strickland or any
other prior trainers had been good trainers; that there are no written qualifications for the
position; and that he looks at such factors as active discipline, attendance, and job
determining who should be selected as a trainer.
Vice-President of Human Resources Robert F. Samer testified that the trainer position
never been a posted job, or a bid job, or an annual bid job. He said that the trainer position
been treated as a Section 7.06-covered job requiring posting and bidding; that "Training was
absolute number one issue" which previously caused high employee turnover; that such high
"was basically totally unacceptable"; and that the revised training program has greatly
turnover. He added that seniority governs only if "all things are relatively equal", but "not
straight auspices of 7.06." Asked why there has been such a longstanding dispute over this
replied: "The Company has taken the position it is a management right and the neutral
will make the final decision, and the Union has not agreed with that."
POSITIONS OF THE PARTIES
The Union claims that the Company violated Section 7.06 of the contract because
necessarily includes warehouse work" which is bargaining unit work under the contract and
the parties historically have "considered training to be bargaining unit work." It also
bargaining unit work must be assigned on the basis of seniority because the trainer position is
excluded from the contractual seniority proviso; because past practice "demonstrates that
jobs must be awarded on the basis of seniority"; and because the contract's "current
sufficient to allow the Company to hire only qualified trainers." As a remedy, the Union
asks that the
training job should be reposted and awarded on the basis of seniority.
The Company asserts that the Union has failed to meet its burden of proving that
has been violated; that trainers have never been covered by Section 7.06; that the parties
excluded trainers as a job classification covered by the contract"; that the Company has never
trainer positions under Section 7.06; and that the trainer position "has never been a posted
job." It also maintains that the Union was "unable to
obtain in the 2000 contract negotiations what it now seeks to obtain through
arbitration"; that the
Union in any event has failed to prove that it improperly selected a junior employee over an
"equally-qualified senior employee"; that it properly honored seniority; and that Freink
that Strickland was not qualified to be a trainer.
This case mainly turns on the application of Section 7.06, entitled "Vacancies",
. . .
7.06 VACANCIES. Seniority
within each seniority group as listed above shall be applicable
to vacancies and new positions under the jurisdiction of this Agreement on the following
Notice of vacancies and new positions shall
be posted on the bulletin board by the Employer for
five (5) working days, (Thursday through Tuesday), but the Employer may fill such
vacancies or new
positions immediately pending selection of the applicant. Any employee desiring to fill any
posted vacancy or new position shall make application, in writing or via proxy through the
to the Employer.
Upon the expiration of the
temporary vacancy, the successful bidder shall be placed back
into original job bid and shift.
All job postings shall identify the
shift's set start time and current start time. In instances
of multiple start times, tied into a shift (or overlapping shift days), the posting must so
such tie-ins for the purpose of overtime, vacation, personal leave day selection,
The senior qualified employee
who bids a temporary assignment must accept for duration
of absence, unless the employee signs for, and receives by seniority, a permanent full-time
The employee's accepting a
temporary job posting shall take their vacation with them from
the original assigned shift.
No employee holding a bid job
shall accept such position (temporary job posting).
Openings will be filled by the
Employer giving preference to the senior employee, providing
such employee is qualified to perform the work available. When qualifications of an
are questionable, up to a thirty (30) day trial period will be provided the applicant. If he
not adequately fill the opening or vacancy to the Employer's satisfaction, he will be returned
to his former position.
The Union argues that the reference to "each seniority
group as listed above" includes
warehouse employees because Section 7.01, entitled "Definition", states:
Seniority is defined as the length of continuous
full-time service with the Employer while
working under the jurisdiction of this Agreement. Drivers, warehouse, garage mechanic and
maintenance mechanic employees shall each be separate seniority groups.
In this connection, Section 1.01, entitled "Recognition", states that the
includes "warehouse employees. . ."
On the other hand, Section 6.01 states that the Company retains the
right to transfer
employees, thereby supporting the Company's claim that it is free to transfer employees to
trainer position. In addition, Section 1.01 is not controlling because the question here is not
whether the trainers are in the bargaining unit, but rather, whether their selection must be in
accord with Section 7.06. Moreover, there is nothing in Section 7.06 - or any other part of
contract for that matter which expressly states that the trainer position must be
bid and awarded on the basis of seniority. Indeed, the trainer position is not even referenced
in any part of the contract.
The Union itself recognized that there is no express contractual
language governing the
filling of the trainer position, since it unsuccessfully tried to obtain language in the last round
of contract negotiations reading: "The Company will honor seniority when assigning trainers
from these pools", and that "Employees interested in becoming certified trainers must sign
posting and employees to be trained will be taken by seniority from the posting." (Company
Exhibit 1, Article 24, Section 3). In this connection, it is axiomatic that a party
in an arbitration proceeding what it failed to get at the bargaining table. See United States
Tobacco Company, 103 LA 908, (Petersen, 1994); City of Dayton, 105 LA 614 (Fullmer,
This bargaining history is augmented by a past practice showing that
the Company in
the past has not always followed seniority in selecting trainers and that it also did not solicit
formal bids for the trainer position. Thus, Business Agent Gable testified that employees in
the past did not sign the posted notices for trainers; that trainers were not part of the
contractual bidding procedure; and that the Company in the past always
"they had the right to manage, and if we [i.e. the Union] didn't like it, they would still
them." Vice-President Samer testified to that same general effect and said that the Company
has always "taken the position that it is a management right and the neutral decision-maker
[i.e. a Company representative] will make the final decision, and the Union has not agreed
that." This is why there has been no clearly-defined past practice and why the Union's
reliance on numerous cases upholding a past practice is without merit. See Matanuska
Electric Assn., 111 LA 596 (Landau, 1998); Genex Ltd., 99 LA 559 (Bard, 1992); USS-
Minnesota Ore Operations, 99 LA 1052 (Dybeck, 1992); Dane County, 83 LA 1205
(Briggs, 1984); Deming Division Crane Co., 100 LA 659 (Feldman, 1992).
According to Chief Steward Ausloss, an exception to all this occurred
under a joint labor-management committee which agreed that seniority should prevail in
awarding the training position (Union Exhibit 1). That, though, does not constitute a
past practice since the Company after 1999 followed a different approach in awarding the
trainer position, and since the Union itself apparently repudiated the corroborative effort at
such problem-solving in the last round of contract negotiations.
Based on the above, I conclude that the contract does not clearly and
state that the trainer position must be awarded on the basis of seniority and that, as a result,
it is proper to consider parol evidence. That shows that the position has never been
to Section 7.06's formal bidding process and that the Union failed in the last round of
negotiations to obtain the language it seeks here. It therefore follows that the Company is
required to follow seniority in filling the trainer position and that the Company thus did not
violate the contract when it failed to offer the trainer position to grievant Strickland or any
other more senior employee.
In light of the above, it is my
1. That the Company did not violate the contract in the manner in
which it selected
trainers in July, 2000.
That the grievance is therefore denied.
Dated at Madison, Wisconsin this 31st day of July, 2001.