BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LACROSSE CITY EMPLOYEES UNION,
LOCAL 180, SEIU, AFL-CIO, CLC
CITY OF LACROSSE
(Grievance of Tom Fryseth)
Davis, Birnbaum, Marcou, Seymour and Colgan, Attorneys at Law, by Mr.
James G. Birnbaum, on behalf of LaCrosse City Employees Union, Local 180,
SEIU, AFL-CIO, CLC.
Mr. Peter B. Kisken, Deputy City Attorney, on behalf of the
City of LaCrosse.
LaCrosse City Employees Union, Local 180, AFL-CIO, CLC, hereinafter the Union,
requested that the Wisconsin Employment Relations Commission appoint a staff arbitrator to
and decide the instant dispute between the Union and the City of LaCrosse, hereinafter the
accordance with the grievance and arbitration procedures contained in the parties' labor
The City subsequently concurred in the request and the undersigned, David E. Shaw,
Commission's staff, was designated to arbitrate in the dispute. A hearing was held before
undersigned on March 1, 2001 in LaCrosse, Wisconsin. There was no stenographic
of the hearing and the parties submitted post-hearing briefs in the matter by April 25, 2001.
upon the evidence and the arguments of the parties, the undersigned makes and issues the
The parties stipulated there are no procedural issues, but were unable to agree on a
of the substantive issues.
The Union proposed the following statement:
Did the City violate a prior consent agreement, grievance
settlements, past practice and/or the
collective bargaining agreement when it failed to allow the Grievant to be assigned as a City
Opening Worker on March 6, 2000?
If so, what is the appropriate
The City proposed the following issue:
Did the City violate the collective bargaining agreement when it
assigned a Street Department
Maintenance Worker to work out-of-class on March 6, 2000? If so, what is the appropriate
The Arbitrator frames the issues to be decided as follows:
Did the City violate the Collective Bargaining Agreement when it
assigned a less senior employee
in the Maintenance Worker II position on the Patch Crew to work out of class in the Utility
Worker position on that crew, instead of offering the assignment to the Grievant, on March
If so, what is the appropriate remedy?
The following provisions of the parties' 2000-2001 Agreement have been cited:
. . .
The arbitrator shall not add to, or subtract from the terms of this agreement.
. . .
WAGES AND SALARY SCHEDULE
. . .
E. Assignment to a Higher
Hourly employees temporarily assigned to
a higher rated position shall receive the established
rate for the classification. Employees to be paid higher rate for only actual hours assigned
of class. When assigned to a higher rate of pay for the full day, the higher rate shall apply
all unscheduled and/or unanticipated leave if leave is taken the same day.
The practice of payment for tar crew
employees shall be 10 cents per hour for whole day.
. . .
Employees subject to this Agreement shall be
compensated at the rate of one and one-half (1½) times
their regular rate of pay for services rendered and hours worked over and above their
regularly scheduled work week. In no case shall time and a half be authorized for services
less than forty (40) hours in one week. For employee's on a 37½ hour work week,
shall be at straight time cash or compensatory time for the first 2½ hours of weekly
. . .
Employees recalled to work shall be entitled to a
minimum of two (2) hours pay at time and one-half.
. . .
Department seniority is recognized and shall be
considered in filling vacancies and making
promotions in the department, providing the applicant is qualified in accordance with the job
description posted by the City. The best qualified candidate of those bidding on the job
the department shall be awarded the position. The City carries the burden to show that the
person selected is the best qualified.
. . .
RESERVATION OF RIGHTS
Execpt as otherwise specifically provided herein, the management
of the City of LaCrosse and
the direction of the work force, including but not limited to the right to hire, to discipline or
for proper cause, to decide initial job qualifications, to lay off for lack of work or funds, or
reduction in the level of services, to abolish positions, to make reasonable rules and
governing conduct and safety, to determine the schedule of work, to subcontract work,
the right to determine the methods, processes and manner of performing work, are vested
New rules or changes in rules shall be
posted in each department five (5) calendar days prior to
their effective date unless an emergency requires a more rapid implementation of such rules.
. . .
This agreement is subject to amendment, alteration or addition
only by a subsequent written
agreement between and executed by the City and the Union wherein mutually agreeable.
of any breach, term or condition of this agreement by either party shall not constitute a
the future enforcement of all its terms and conditions.
. . .
The foregoing constitutes an Entire Agreement between the parties
and no verbal statement shall
supersede any of its provisions.
. . .
Employees of the City's Highway (Street) Department are among the employees
by the Union. The Grievant, Tom Fryseth, is an Equipment Operator II and not regularly
to any crew. The Department has three crews: Patch, Cement and Sign Shop, as well as
who are not assigned to crews, e.g., equipment operators and truck drivers. Each crew has
leader who holds the position of Utility Opening Worker.
The pay rate for a Utility Opening Worker is higher than that of an Equipment
On March 6, 2000, the employee in the Maintenance Worker II position on the Patch Crew,
less senior than Fryseth, was assigned to the Utility Opening Worker position (in that
absence) on the Patch Crew. It is stipulated that Fryseth is qualified to perform a crew
on that crew.
There is a dispute as to what the practice has been with regard to assignment to work
out-of-class in higher-paid positions. The Union alleges that there has been a practice of
Department seniority in regard to opportunities for overtime, call-in and out-of-class pay.
Iverson both testified it was their experience that the most senior qualified employee in the
Department has been assigned to the crew leader position when the latter is absent, and was
limited to those on that crew. Schliefer testified similarly, and that in his experience,
could assign a less senior employee to the higher-rated job, but then paid the most senior
the higher rate. The City alleges that the practice has been to assign the Maintenance
Worker II (MW
II) on the crew to the crew leader position when the latter was absent, without regard to
or if no MW II was on the crew, to the most senior member of the crew under the crew
Street Superintendent, Randall Hinze, testified that as far as the three crews, that has been
since he started in 1989, including when he was a crew leader. Hinze conceded that was not
outside of the crews. In the latter case, the most senior qualified employee is either
assignment, or in some cases, a less senior employee is assigned to the higher-rated position
most senior qualified employee also receives the higher rate of pay. Former Street
Don Gehrig (retired in 1990), testified there were no MW II's on the crews then, and that
senior employee on that crew was assigned to fill in for the absent crew leader without
Assistant Superintendent Rolland Grosskopf was the Account Clerk/Timekeeper in the
Department and on the Union's Executive Committee prior to 1997. He testified that it was
the most senior employee on that crew who was assigned to fill in as crew leader until the
position had been created on the Patch Crew, the employee in that position then being
fill in for the absent crew leader.
Prior to May of 1997, the City had a Maintenance Worker I position that,
along with a
Laborer position, had rotated on to the Patch Crew and had been paid out-of-class pay as a
when they did so. In May of 1997, the City eliminated the Maintenance Worker I position
created a MW II position on the Patch Crew. The other crews already had a MW II
on the crew.
In November of 1999, the parties reached agreement regarding the new position
being established. That agreement was memorialized as "Memorandum of Understanding
was appended to their current agreement. MOU #14 states, in relevant part:
MEMORANDUM OF UNDERSTANDING #14
. . .
This letter reflects the understanding reached by the parties during
negotiations for the 2000-2001 collective bargaining agreement regarding the newly
established position descriptions for SEIU
The following issues were discussed:
POSITION DESCRIPTIONS REFLECT CURRENT
The last time that a comprehensive position analysis was
performed for each city position was
in 1964, some thirty-five years ago. Since that time, there have been ad hoc changes and
position descriptions prepared by the respective eighteen department heads. Needless to say,
this many drafters of written position descriptions, it was difficult to have any kind of
the scope and breadth of the finished product. Therefore, new position descriptions more
reflect what employees actually do.
. . .
OUT OF CLASS PAY
While the position descriptions do not contain references to out of
class pay, the subject has been
brought up in discussions between the City and SEIU Local #180. The promulgation of new
descriptions WILL NOT affect the current practices in place regarding the payment for out
. . .
It is agreed that the explanations described above will be
maintained during the life of the 2000-2001 collective bargaining agreement.
. . .
In March of 2000, the position description for the Maintenance Worker II position
amended, in relevant part, to add: "Incumbents in this classification may occasionally
duties of crew leader."
On March 6, 2000, the individual in the crew leader position (Utility Opening
Worker) on the
Patch Crew was absent. The employee in the MW II position on that crew, who is less
Fryseth, was assigned to the crew leader position without Fryseth having been offered the
to work in the higher-paid position. Fryseth filed the instant grievance based on his being
opportunity to work in the higher-rated position. The parties attempted to resolve their
were unsuccessful, and proceeded to arbitration of the dispute before the undersigned.
POSITIONS OF THE PARTIES
The Union first asserts that the express language of the Agreement mandates that the
should have been assigned the Utility Opening Worker position on March 6, 2000. Article
17 of the
Agreement contains specific language concerning the assignment of vacancies to bargaining
employees in a department. The application of strict department seniority, provided the
qualified, is firmly established in the language that reads, "(A) Department seniority is
shall be considered in filling vacancies and making promotions in the Department, providing
applicant is qualified in accordance with the job description as posted by the City. . ." When
vacancies occur on a temporary basis, the employer may assign an employee who is then
the higher wage rates for that classification, pursuant to Article 10, Section E. The principle
application of strict departmental seniority has been extended to all occasions when the
of work results in monetary improvement, e.g., the payment of overtime (Article 12) and
Here, it is undisputed that a temporary vacancy occurred in the Highway Department
Patching Crew in the Utility Opening Worker position (crew leader) on March 6. At the
Grievant occupied the position of Equipment Operator II, which is paid less than the crew
position. It is undisputed that the City assigned a Department employee with less seniority
Grievant to the opening. It was stipulated that the Grievant was qualified to perform the job.
Further, he has actually been assigned to perform those duties over the past 18 years.
The Union also alleges that the extension of the application of strict departmental
if the person is qualified, to all assignments resulting in financial advantage is found not only
express language of the Agreement, but in an array of grievance settlements, a consent
specific written agreements. Prior grievance settlements, in themselves, are binding
authority on the
parties. Standard Oil Company (Indiana), 13 LA 799 (Kelliher, 1949). The concept of the
application of seniority first arose in the grievance settlement area in May of 1984, and
denial of overtime based on strict departmental seniority. A second grievance involved a
award occurring in July of 1984; again over the issue of applying strict departmental
assignments that resulted in enhanced pay, i.e., call-outs and overtime. In both cases, the
adjusted the grievances, and in the latter also agreed to a consent award establishing the
of strict seniority. A third grievance occurred in January of 1985, again involving the
strict departmental seniority when pay was involved. The City again agreed that the contract
been violated and that they would not engage in similar conduct in the future.
With regard to specific written agreements, in May of 1984, correspondence was
between the parties regarding the issue of applying strict departmental seniority. In order to
how issues of assigning work which result in greater pay will be handled, the Union sent a
the City on May 21, 1984. The City responded with a letter dated May 29, 1984, that
subscribes to the application of strict departmental seniority provided the person is qualified.
The suggestion that because the grievances arose in the context of overtime and
the principle of applying strict departmental seniority does not apply to out-of-classification
not persuasive. First, the uncontroverted past practice in the Department regarding
out-of-classification pay has been to apply strict departmental seniority, provided the person
is qualified. As
the practice was uniform and unambiguous, there was no need to file a grievance asserting
application of strict departmental seniority in that context. Second, there is no inherent
in the concept between overtime, call out pay and out-of-class pay, as in each circumstance,
parties are dealing with a relatively short term and usually unscheduled occurrences requiring
assignment of the work. If the City's argument prevails, the Arbitrator would be creating
standards for the same type of work. As this is a residual bargaining unit in which the
required to administer the Agreement
for approximately 250 employees in various departments, to permit the application of
standard regarding the assignment of work resulting in enhanced compensation would be an
impossible administrative nightmare for the Union to monitor. Thus, it would be
considering the bargaining history and undisputed application of strict department seniority,
out such an exception.
Next, the Union asserts that a compelling past practice conclusively establishes that
has violated the Agreement in this instance. In order for a past practice to be binding, the
must be unequivocal; clearly enunciated and acted upon; readily ascertainable over a
period of time as a fixed and established practice accepted by both parties. Celanese Corp.
America, 24 LA 168 (Justin). The evidence conclusively establishes each of those elements.
employees (Reget, Iverson, Schliefer, Thrower and Fryseth) testified without contradiction
practice of assigning out-of-class pay on the Patching Crew was by strict departmental
provided the employee was qualified. Even the City's witness, Hinze, conceded that prior to
of 1997, the practice was to follow strict department seniority, provided the individual was
in assigning the crew leader position on the Patch Crew. Even though the City recalled
because he was "confused", his confusion did not lead to a denial of the practice. Further,
witnesses testified without contradiction that the practice has continued since 1997. Thus,
no question that the evidence establishes the required elements of a binding past practice.
Even if the City is only contending that the practice changed after 1997, following
reorganization and the creation of the MW II position, that argument must fail. The City
negotiated a change to the fundamental practice. The City concedes that the Union was
notified of the City's intent to change the practice with regard to the application of strict
Further, the City's own documents promulgated at the time of the reorganization do not
intent to alter the practice regarding out-of-classification pay. Virtually all of those
contain no reference to what the City now claims was its intent. The only documents
support its claim, the Maintenance Worker II position description, is dated March of 2000,
month this grievance was filed. Such a document hardly supports a claim of a change in
1997. Further, the Memorandum of Understanding 14 clearly eliminates the use of
as a basis for an alteration of practice concerning out-of-class pay. Thus, the City cannot
that the practice was in any way altered in May of 1997 sufficient to bind the parties.
Further, it is
uncontroverted that the Union was not aware that any change had occurred in that respect.
The Union also had no reason to know of the change. Under Article 10, E, the
to be "assigned" before out-of-classification pay is earned. The evidence shows that the City
option of whether or not to assign the duties of the crew leader on any given day.
Therefore, for the
Union to be aware of whether or not the City had violated the practice, it would have to
know on any
given day whether or not the work had been assigned. As to any
specific incident, the City was unable to demonstrate that the City was aware of even
assignment. Second, the Union would also have to be aware of who was on duty on a
as the application of strict seniority requires the employer to offer the position to the most
qualified individual on duty. Simply looking at the payroll list and determining who got paid
for out-of-class pay would not reveal to the Union whether or not the practice had been
violated. Third, the
Union would also have had to be aware of which employees were offered and/or rejected the
assignment. The evidence is clear that employees have exercised the option to reject offers
as the crew leader. Thus, the Union would have virtually no way of knowing which
specifically offered or refused the assignment. Finally, the suggestion that because a Union
had been a payroll clerk in the Department that somehow the Union would have knowledge
change of practice is not supported by the record. The cross-examination of the former
now Assistant Superintendent, Rolle Grosskopf, shows that he would not generally have
was offered or who had refused the assignment.
Next, the Union asserts that the entire purpose of including the Memorandum of
Understanding 14 was to preserve the practice of assigning out-of-class pay to the Utility
Worker position on the basis of seniority. Even the language of the MOU contains the
words, "WILL NOT", underscoring the critical importance of maintaining the practices
The practice of assigning extra work, including out-of-classification pay, was clearly
enunciated and almost undisputed in the record. The prior grievance settlements and written
agreements support the practice. However, not one document submitted by the City supports
non-existence of the practice or any alleged change in the practice after 1997. Further, the
actions regarding the issue conform to the practice as well. It is undisputed that when
assigned work contrary to the application of strict seniority in the department, the practice is
actually pay the more senior person the premium wage, as well as the less senior person
assigned to the position. Thus, the Union has established conclusively that the parties have a
long-standing practice in assigning work by seniority in the department. Specifically, as to
Crew, the practice has been to assign the work of the crew leader on the basis of strict
provided the person is qualified.
In its reply brief, the Union asserts that the City has materially misstated and
the testimony in a number of respects. The City also failed to address the Memorandum of
Understanding 14, the entire purpose of which was to guarantee the practice with regard to
assignment of out-of-class pay. Moreover, if the MOU was not intended to address the very
at issue, one must ask what then, was its purpose?
The Union concludes that the grievance should be granted, and the Grievant paid any
back pay for the times he was denied the opportunity of filling in as the Utility Opening
the work was assigned to a less senior employee.
The City first asserts that the express language of the Agreement does not provide for
department-wide seniority for out-of-class pay. Citing Article 2, Article 19, Article 25,
and the Memorandum of Understanding 14, the City asserts that there is nothing in the
which indicates that strict department-wide seniority is to be used for purposes of out-of-class
Further, while past practice is often used to establish the intent of ambiguous contract
will not ordinarily be used to give meaning to a provision that is clear and unambiguous.
is nothing in the Agreement supporting the Union's argument, and the language itself is clear
explicit, the grievance should be denied.
The City next asserts that neither the testimony, nor the grievance settlements
establish a past
practice of using strict department-wide seniority for out-of-class pay. The Union has
a prior consent agreement, previous grievance settlements and past practice dictate that
department-wide seniority should be followed for assigning out-of-class pay in the Street
lacking, however, is any evidence of the existence of a prior consent agreement to support
Union's position. The Union relies on an unsigned letter drafted by Reget which only
references call-out and overtime, and not the issue of out-of-class pay. Similarly, the Union
relied on another
unsigned letter from Reget to some unknown person that again only addresses overtime,
out-of-class pay. Former Street Superintendent Gehrig, who was Superintendent at the time
letters were written, confirmed that the letters did not, and were not meant to, apply to
pay. Further, Gehrig testified that his letter of May 29, 1984 indicates that department-wide
was not to apply to situations of out-of-class pay.
The Union's reliance on previous grievances in 1984 and 1985 to support its
argument is also
misplaced. The grievances are clearly distinguishable from this case in that they involve
overtime and call out, rather than out-of-class pay. Further, there is no evidence as to the
of the grievances. Thus, they lack any binding effect in this case.
The City asserts that the Union has failed to establish a past practice of following
department-wide seniority for purposes of out-of-class pay. In order for the Union to
establish a binding practice
in this case, it must demonstrate strong proof of a clear, consistent, long-standing and mutual
of assigning out-of-class pay based on Street Department-wide seniority. It has not done so.
Union's first witness, Reget, testified primarily about the 1984 and 1985 grievances and the
consent agreement. Reget testified he had the actual
consent award, but simply neglected to bring it to the hearing. That testimony is not
Further, Reget refused to concede that the grievances dealt with issues of overtime and
rather than out-of-class pay. However, a review of the documents clearly indicates that
adding language that simply does not exist in them. The fallacy of Reget's position is
the position description for Maintenance Worker II, which provides that "Incumbents in this
classification may occasionally perform the duties of crew leader." Conversely, the position
description of Equipment Operator II, the Grievant's position, contains no language to that
Union witness Iverson also testified that he was basing his testimony on the missing
award. Iverson also produced Union Exhibit 9, a handwritten note without a date, which is
self-serving. Further, he was unable to produce any time cards that would justify the
Union witness Schliefer testified that the Department uses strict department-wide
for out-of-class pay, but was unable to explain how he knew this. He also based his
testimony on the
missing consent agreement, which he claimed to have seen "lots of times", but was unable to
why this seemingly important exhibit was missing.
The Union's final witness, Thrower, testified he was a member of the Union's
Board, and at the same time was a crew leader in the Street Department. He testified that in
absence, Andresen, the MW II on the crew, took his position, and that Andresen was not the
senior Street Department employee. Thus, the Union knew what was happening, and that the
leader position was not offered to anyone else. Thrower's testimony is significant in that it
inconsistent with the Union's theory. Past practice provides no guide where evidence
nature and duration is highly contradictory. Except for Thrower, the bulk of the Union's
in this case consists of mere general statements, with reference to a 1984 consent agreement
one could produce. There has been virtually no reference to names of other employees who
be able to support the Union's position. It is well-established that past practice may not be
established by mere general statements without reference to names or dates.
In contrast to the Union's case, the City has established that there has not been a
using department-wide seniority in regard to out-of-class pay. Current Street Superintendent,
testified that he has been with the City since 1989 in a variety of positions, including crew
Hinze testified that when he was a crew leader and absent from work, the employee in the
position on the crew, LaFleur, was assigned to work out-of-class as the crew leader. Hinze
personal knowledge that LaFleur was not the most senior employee. Hinze also testified that
capacity as Street Superintendent, when a crew leader is absent, he assigns the MW II to the
leader position for purposes of the sanctity of the crew. He further testified that the
not use strict department-wide seniority with regard to out-of-class pay.
The Grievant in this case, Fryseth, stated in his application for the position of Utility
Foreman when he was a Maintenance Worker I in 1990, "Have worked with this crew for 12
Have taken over the crew when Foreman has been absent for the past eight years." Fryseth
that at the time he was not the most senior employee in the Department. Fryseth's testimony
significant in that he is the Grievant in this case, and his own testimony does not support the
Former Street Superintendent Gehrig worked in various positions in the Department
1956 to 1970, and as Superintendent of the Department from 1977 through 1990. Gehrig
that department-wide seniority was never used with respect to out-of-class pay. Rather,
of the same crew were assigned to the crew leader position in the latter's absence. He also
that there was no consent agreement governing out-of-class pay, and that his letter of May
did not apply to out-of-class pay. Gehrig's testimony was consistent, and it is significant in
is retired and has no especial allegiance to the City.
Also called to testify for the City was the current Assistant Street Superintendent
who was for 22 years the Account Clerk/Timekeeper for the Street Department. During that
Grosskopf was a member of the Union's Executive Board. Grosskopf testified that as the
timekeeper, he was uniquely qualified to know how work was assigned within the
further testified that the entire time that he has worked in the Street Department, there has
practice of following department-wide strict seniority for purposes of assigning out-of-class
According to Grosskopf, when the crew leader was absent, the MW II was assigned the
that is the way it has been as long as he has been in the Department. Grosskopf also
the Agreement confirms, there is a distinction between out-of-class pay, call out pay and
and the Agreement has separate provisions governing those matters.
Thus, the testimony shows that for the purposes of continuity and sanctity of the
MW II has been assigned the role of crew leader when the latter is absent, and the contention
crew leader has been replaced by the most senior employee in the Department is not
supported by the
In its reply brief, the City notes its disagreement with the Union's contentions in its
of facts. The variances in the facts involve a series of letters and grievances which the
contends are applicable to the issue of out-of-class pay. Conversely, the City relies on the
language in the letters, which indicates they are applicable only to call outs and overtime.
the Union produced no evidence regarding the disposition of these grievances.
The Union places critical reliance on what it refers to as a "consent decree",
however, it has
failed to produce such an important document. The City contends that such a "consent
existed. Similarly, Union Exhibit 9, is simply a handwritten note by the Union president,
and is clearly
self-serving and lacking any evidentiary value.
The Union's reliance on Article 17 is misplaced. The Union has taken one sentence
Article out of context. Article 17 consists of nine paragraphs, none of which apply to this
is entitled "Transfers". The Article pertains solely to issues relating to permanent job
their filling through transfer.
The Union's argument that there are no differences between overtime, call-out pay
and out-of-class pay, runs contrary to the actual language of the Agreement. There are vast
between the three concepts, and there are separate articles governing them in the Agreement.
Further, Article 12 and 13 are absolutely silent on the issue of seniority as it applies to
call-out pay. The Union's argument is contrary to the explicit language of the Agreement.
The City asserts that the crux of the Union's case is that the Agreement requires that
department-wide seniority be used for purposes of out-of-class pay, however, there is no
which supports the Union's argument. In the absence of such language to support its
Union has attempted to prove its case through past practice, but has not met its burden in
The City requests therefore that the grievance be denied.
This dispute involves the failure to offer the work in a higher classification in
this case the
assignment to fill in for the absent crew leader (Utility Opening Worker) position on the
Crew on the basis of department seniority, provided the employee is qualified. Article 10,
Assignment to Higher Classification, provides that employees who are temporarily assigned
higher classification will receive the higher rate. It is silent as to how assignments are to be
is, therefore, ambiguous in that respect.
The Union asserts that the clear language of the Agreement requires that
all work in a higher
classification assignments are to be offered on the basis of strict Department seniority as long
employee is qualified and available. In support of its position, the Union first relies on
Transfer, A, of the Agreement. However, it is clear on the face of that provision that it is
with the bidding and selection of applicants for a permanent position, and not for a
assignment such as is involved in this case.
The Union also asserts there is a binding past practice of offering such assignments
basis of department seniority, if the senior employee is qualified, or of paying the senior
employee the higher rate if a less senior employee is assigned to the position. The Union
evidence of such a practice grievances in 1984 and 1985, as well as correspondence between
Union and management, all of which concerned recall (call out) pay and overtime and are
to working in a higher classification. The only evidence as to an alleged "consent
agreement", is an
October 10, 1984 notice Reget drafted and which also specifically references "call-outs and
and is silent as to assignments to work in a higher classification.
While call-out pay, overtime and working in a higher classification all involve an
benefit, they are covered by separate provisions in the Agreement. It does not automatically
that the method used to determine who will be called out and/or offered overtime, and in
is the same to be used for determining who is to first be offered temporary work in a higher
classification on the crews.
In order for the Union to prevail then, it must establish the existence of the claimed
through the testimony of its witnesses. The testimony regarding such a practice, however,
establishes that the method of assigning work in a higher classification has varied over the
has, at best, been inconsistent as far as offering it first to the most senior qualified employee
Department, especially with regard to the crews.
In that regard, Reget, Iverson and Schliefer testified that in their experience and as
knew, the practice had been to follow seniority or to pay the most senior employee if a less
employee is assigned the work. However, Union witness Thrower, who is on the Union's
Committee and is Sign Shop Foreman (crew leader), testified that when he has been absent,
employee in the MW II position on that crew, Andresen, has been assigned to take over and
is not the most senior. Thrower further testified that he did not know if it had first been
anyone else, but he did not believe it had been. A witness for the City, Grosskopf, who has
Assistant Superintendent since 1997, but had been the Account Clerk/Timekeeper for 25
on the Union's Executive Committee, testified that when Snyder had been a crew leader and
President, the person on the Patch Crew under the crew leader (usually the most senior) had
assigned as crew leader when Snyder was absent. Grosskopf conceded that prior to 1997 he
not have known whether the assignment had first been offered to others and turned down.
he testified that since he has been Assistant Superintendent, the MW II on the Patch Crew
assigned as crew leader when the employee in that position has been absent and that in his
in the Department, strict department seniority has never been applied in assigning
It appears from the testimony of Thrower and Grosskopf that both have been aware
being on the Union's Executive Board, that Department seniority has not been applied in
work out-of-class on the crews and have not considered that to violate the Agreement or
That is inconsistent with the Union's claim that it has grieved any time it has been aware of a
deviation from the claimed practice and that this is the first instance it has been aware of
As far as the MOU 14, the fact that it references "practices" does not establish what
practices are. There are other explanations as to the purpose of the MOU that are just as
as that of preserving the practice claimed by the Union, e.g., a practice of paying
even though a job description includes as a duty of the position to occasionally fill in for the
For these reasons, it is concluded that the Union has not established that the City's
in this case violated either the express terms of the Agreement or a binding past practice.
Based upon the foregoing, the evidence and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 12th day of October, 2001.