BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL 40, AFSCME,
(Heath Miller Finish Grader Position Grievance)
Mr. Neil Rainford and Mr. Michael J. Wilson, Staff
Representatives, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Steven J. Rollins, Corporation Counsel, Manitowoc County,
appearing on behalf of the County.
The Union and Manitowoc County, hereinafter referred to as the County or the
are parties to a collective bargaining agreement which provides for final and binding
certain disputes, which agreement was in full force and effect at all times mentioned herein.
parties asked the Wisconsin Employment Relations Commission to assign an arbitrator to
resolve the grievance of Heath Miller, hereinafter referred to as the Grievant, regarding the
used by the County to fill a vacancy for a "Grader Operator" position. The undersigned was
appointed by the Commission as the Arbitrator and held a hearing in the matter in
Wisconsin, on April 11, 2001, at which time the parties were given the opportunity to
evidence and arguments. The hearing was transcribed. The parties filed post-hearing briefs
briefs by August 1, 2001.
The parties were unable to stipulate to the issue presented and left it to the Arbitrator
the issue in the award.
The Union would state the issue as follows:
Did the Employer violate the Collective Bargaining
when it awarded motor grader
#140 to Mark Novak? If so, what is the appropriate remedy?
The County would state the issue as follows:
Did the Employer violate Article 22, Job Posting, when it
awarded the Grader Operator
position that was posted on April 27, 2000, to a person who was not the most senior
so, what is the remedy?
The Arbitrator adopts the County's statement of the issue.
. . .
ARTICLE 2 SENIORITY
Seniority: It shall be the policy of the
Highway Department to recognize seniority.
. . .
ARTICLE 3 MANAGEMENT RIGHTS
Unless otherwise herein provided, management of the work and
direction of the working force,
including the right to hire, promote, transfer, demote, or suspend, or otherwise discharge for
cause, and the right to relieve employees from duty because of lack of work or other
reason, is vested exclusively in the Employer. If any action taken by the Employer is proven
be justified, the employee shall receive all wages and benefits due him or her for such period
involved in the matter.
. . .
ARTICLE 8 GRIEVANCE
. . .
Decision of the Arbitrator: The Arbitrator
shall not modify, add to or delete from the terms of the
. . .
ARTICLE 11 TRIAL PERIOD
An employee, upon being promoted or transferred to another
classification, shall serve a trial
period of ninety (90) calendar days in the new classification. An employee who cannot do
of the new classification within the ninety (90) calendar day trial period shall be returned to
his or her
former position . . . .
The above paragraph shall apply to the
position of foreman also, except that the trial period for
an employee accepting a foreman position shall be for a period of one hundred eighty (180)
If the employee on a trial period for a
foreman position fails to satisfactorily complete his/her trial
period, the employee may then post for the first open position for which he/she is qualified .
. . .
ARTICLE 22 JOB
Notice of vacancies and new positions shall be posted
within five (5) working days after the vacancy
occurs on the bulletin board of the Department and the Personnel Department for five (5)
working days. Tri and Quad axle trucks will be posted by equipment number. Any
desiring to fill any such posted vacancy or new position shall make application in writing and
submit it in a sealed envelope to the office of the Highway Commissioner. After the
conclusion of the posting period, the envelopes will be opened at the Highway
Commissioner's office in the presence of a representative of the Union at a time to be
mutually agreed upon.
Whenever any vacancy occurs it
shall be given to the employee with the greatest seniority within
seven (7) work days after the completion of the posting period.
However, when the County deems
it necessary to fill a foreman position, promotions to that
classification will be determined on the basis of relative skill, ability, experience, and other
qualifications. Where qualifications are relatively equal, seniority shall be the determining
When objections are made by the Personnel Committee
regarding the qualifications of an employee
to fill the position, such objections will be presented to the Union Committee for
If there is any difference of opinion
as to the qualifications of an employee, the Personnel Committee
and the Union Committee shall take the matter up for adjustment through the grievance
The underlying facts in this case are simple and are not disputed by the parties. On
2000, the Employer posted the vacancy of the position of Grader Operator. Applications and
for this position were received until 3:30 p.m. on May 4, 2000. The posting included a
which advised prospective applicants that "The position of grader operator will include an
and a field site test with a grader" and a job description which set forth, among other things,
of the qualifications for the position was "3-5 years experience in operating motor graders."
Four men applied for the position and one subsequently withdrew. This left three
Michael Sickinger, Heath Miller and Mark Novak. All three men were members of the
unit. Of the three, Michael Sickinger was the most senior employee, Heath Miller the next
senior and Mark Novak the least senior. The three were interviewed and then given a "field
which consisted of each man demonstrating his ability to operate a "finish grader" by grading
400 foot run to a grade of two or two and one half degrees. The Employer's agents
field test posted grade stakes every 100 or 150 feet and the applicants were to grade to those
Following this "field test," the five men conducting the test determined that Mark Novak was
grader operator of the three and he was ultimately offered the position. Because he was the
senior of the three contenders and because the Union posits that the most senior applicant
have been awarded the position under the dictates of Article 22 of the Agreement, this
THE PARTIES' POSITIONS
The Union asserts that the Agreement between the parties is clear as it relates to the
application of seniority to job postings. It says that Article 22 Job Postings,
forth, under paragraph B thereof, that vacancies for which bargaining unit employees have
must be awarded to the most senior person without regard to qualifications,
abilities or skills. It
argues that those portions of Article 22, which refer to qualifications, abilities or skills,
to the foreman positions set forth in paragraph C of that article, not to the
vacancies described in paragraph B. In short, the Union takes the position that
paragraph B of Article
22 is a "strict seniority" clause whereas paragraph C, which relates to foreman positions
is a "modified seniority" clause of the "relative ability" variety.
In support of its theory, the Union points to the bargaining history of the parties and
that the agreements of the parties since 1966 have given regular employees the right to post
positions on the basis of seniority and only in the case of "temporary employees" who apply
positions was ability or qualification an issue. The Union points out that the rights of regular
employees have always been distinguished from the rights of other types of employees (i.e.
temporary, seasonal). In 1981, the parties added the Article 22, paragraph C, language
see today) referencing the position of foreman and, true to historical form, argues the Union,
regular employees are still distinguished by being given the right to those positions based
seniority. The Union says that paragraphs D and E of Article 22 were added in 1982 as a
the parties in the event an objection arose concerning the qualifications of an applicant for a
position under paragraph B. The Union says that the parties' intent was not to add any
to the posting rights of regular employees. If that had been the intent, it says, such language
have been added to paragraph B.
The Union argues that the trial period set forth in Article 11 supports its position
acts as a governor of the absolute seniority clause. It guarantees the employee 90 days to
demonstrate his or her ability to do the job and it gives the employer the option to replace
employee if he or she fails to demonstrate his/her ability within 90 days. The Union says
language of Article 11, which provides that an employee be returned to his or her former
he/she cannot do the work of the new classification within 90 calendar days, is
indicative of the fact
that he or she need not be qualified at the time of transfer; only that the employee be able to
demonstrate that he/she has become qualified within that 90 calendar day period.
The Employer argues that the contract requires that it award positions to the "most
qualified" applicant. It argues that the "trial period" is not a training period for applicants
failed to demonstrate that they are qualified for the job. It says that it fully complied with
of the contract when it awarded the position to the most senior qualified applicant.
The Employer takes the position that the Union has failed to consider the contract as
It says that when one considers Article 3, the Management Rights reservation clause, one
the Employer has reserved its right to the management and direction of the work force and
that a key
right therein is the right to determine qualifications required to hold a particular position. It
a reading of both articles together (i.e. Article 3 and Article 22) clarifies
obligation to award posted positions to the most
senior qualified applicant. The Employer further supports this position by
relating the events
surrounding the hiring of a stockroom clerk position in 1997. In this instance, the Employer
the Union of its intention to test applicants for this position and to hire the most senior
applicant. It is this incident, argues the Employer, which supports the argument that
an "obligation under the contract . . . to award posted positions to the most senior qualified
The Employer says that an unqualified applicant is not contractually entitled to a trial
in order to qualify for a position. It maintains that the trial period referenced in
Article 11 serves two
purposes: first, "it gives the Employer an opportunity to determine whether an employee who
qualifications required for the job can actually do the work;" and, second, "it gives the
opportunity to decide whether they [sic] want to stay in the job or return to their [sic] former
position." According to the Employer, the trial period is not a training period and an
be qualified and awarded the position before he/she is entitled to the trial period. It argues
that it is
well established that "If the senior employee is obviously unfit or unqualified, as in a
the job in question requires a high degree of skill that can be acquired only after a long
training and there is no evidence that the senior employee has these skills or related skills,
management is not required to give a trial period and may give preference to the junior
new hire who already possesses such skills. The same holds true if there is a contract
a trial period." Elkouri and Elkouri, How Arbitration Works,
5th Edition, p.857 (1997).
With regard to the testing process, the Employer argues that the test given to the
was reasonable, that it was fairly administered, that the course was fair and that the
did not give Novak (the employee ultimately given the position) an unfair advantage.
The Union replies that management is attempting to assert a right to determine the
qualifications required to hold a particular position which it is not given by the contract. It
even if that right were specifically given to management under Article 3
Reserved, it would be subject to the superior rights of the employees under the Seniority
found in Article 22 by virtue of the "Unless otherwise provided herein" language in Article
3. It says
that if the parties had intended to limit employee's rights to post to a position by seniority
have said so by adding language like "providing the employee is qualified" or words to that
The Union again argues that the employee is guaranteed a trial period because of the
nature of the seniority clause. This would not be so, it says, if the seniority clause were
include a consideration of qualifications along with seniority, but because the
clause is an absolute seniority clause, the trial period is guaranteed. It further argues
that the trial
period guarantees the applicant ninety (90) days to show he/she can do the work. In short, it
the applicant ninety (90) days to qualify or to prove that he/she is qualified.
The Union says that the "past practice" set forth by the Employer involving the hiring
stock room clerk in 1997 does not establish past practice when viewed along side 20 years of
practice and, even if that one incident could rise to the level of a past practice, it is irrelevant
the clear meaning and language of the contract.
The Union argues in the alternative that if, in fact, the seniority clause is found to be
modified version then it still supports giving the job to the most senior man, Michael
because the evidence suggests that he was "minimally qualified" as a grader operator and, as
should be given the trial period and the opportunity to demonstrate his ability.
With regard to the field test, the Union argues that it was invalid because it did not
the requirements of the job, was not fair and reasonable, was administered in bad faith and
discrimination and was not properly evaluated in light of the contract provisions relating to
and job requirements. The Union says the test failed to identify the applicants who were
qualified and only identified the best among them. In this way, the Employer
rejected two potentially
qualified, albeit minimally qualified, applicants in favor of the best qualified applicant and
the Union, is an erroneous standard. The Union argues that the three to five year experience
requirement imposed by the Employer unfairly discriminates against the most senior
in any event, is an irrelevant requirement since the Highway Commissioner testified that in
the field test unearthed a "diamond in the rough" (a natural grader operator) that that person
have been awarded the position regardless of years of experience. The fact that Novak was
the use of the grader used in the test for the two week period leading up to the test created
advantage in favor of Novak and invalidated the test results.
The Employer takes the position that the Union has misrepresented the contract
relating to the trial period by asserting that it guarantees the senior applicant a full 90 days to
demonstrate his or her ability to do the job. Instead, it says, the Employer's right under
to ". . . step an employee back at any time during the trial period . . ." proves that the trial
no guarantee at all.
The Employer suggests that because it has applied a "most senior qualified" standard
past without objection from the Union that this renders the Union's argument that the
is absolute a nullity.
The Employer accuses the Union of misrepresenting the record as it relates to the
clerk position because of the Union's assertion that the case is "shrouded in controversy."
says the parties disagree on whether the senior employee applicant declined the position or
awarded it in favor of the "most senior qualified" applicant. The Employer's position is that
applicant awarded the position was the most senior qualified and the Union knows it.
The Employer suggests that the Union is guilty of faulty linguistic analysis when the
says that the 1966 Collective Bargaining Agreement (Union Ex. 1), Article 2(c), which it
provides that the Employer has the right to determine qualifications, does not apply to
time" employees. The Employer says it does apply to regular full time employees and this
contractual language supports its theory that regular full time employees have always been
to the Employer's right to determine qualifications. The Employer argues that because this
requires employees to "make application" for a posted position this requires them to provide
of their qualifications. Again, the Employer argues that this language applies to regular full
employees as well as to others making application for posted positions.
Finally, the Employer argues that the changes made to Article 22 language in
set the hiring process for foremen positions apart from the hiring of other positions merely
Employer the right to hire the most qualified candidate for a foreman position. The new
did not alter the Employer's right to assess qualifications for other positions such as the one
here, says the Employer.
The threshold question in this case, of course, relates to the interpretation of the
contained in Article 22 of the parties' collective bargaining agreement. Initially, the question
whether paragraph B of that Article is a strict seniority clause or a modified seniority clause.
former requires the unfettered recognition of seniority and the Employer must give
preference to the
employee with the longest continuous service without regard to any other conditions. The
allows the Employer to disregard seniority under certain circumstances agreed to by the
Generally, modified seniority clauses strive to serve the fundamental aims of seniority while
recognizing the needs of the Employer to consider such factors as skill, ability, aptitude,
efficiency, training, physical fitness, judgment, experience, initiative, leadership, and the
Elkouri and Elkouri, 5th Edition, p. 837)
Paragraph B of Article 22 reads as follows:
Whenever any vacancy occurs it shall be given to the employee
with the greatest seniority within
seven (7) work days after the completion of the posting period.
Standing alone this language clearly sets forth a strict seniority clause which dictates
recognition of seniority in filling vacancies without regard to any other conditions. This
does not stand alone, however. It must be read in conjunction with the remaining paragraphs
Article 22 and the language found in Articles 2, 3 and 11.
Paragraph C of Article 22 reads as follows:
However, when the County deems it necessary to fill a foreman
position, promotions to that
classification will be determined on the basis of relative skill, ability, experience, and other
qualifications. Where qualifications are relatively equal, seniority shall be the determining
When this language is read in light of the preceding paragraph, two things become
the parties have drawn a distinction between "foreman" positions and other positions. Said
way, they have drawn a distinction between the way in which vacancies for foreman
be filled and the way in which vacancies for other positions will be filled. Vacancies for
positions will be filled following the Employer's evaluation of the "skill, ability, experience,
qualifications" of the applicant. Only after that evaluation is made, and only if the applicants
equal in terms of their "qualifications," does the Employer need to recognize seniority.
the tie breaker. Vacancies for other positions will be filled on the basis of seniority only.
the language found in this paragraph creates a "modified seniority" clause. Where
the qualifications of employees bidding for the same job are allowed, and where seniority
a determining factor only if the qualifications are equal, as here, the clause may be referred
to as a
"relative ability" clause. Roanoke Iron and Bridge Works, Inc. 68 LA 1019, 1021
1977); San Francisco News-Call Bulletin 34 LA 271, 273 (Ross, 1960)
So, when read together, these two paragraphs present us with a strict seniority clause
paragraph B and a relative ability seniority clause in paragraph C. Article 22 contains two
paragraphs, each referring to qualifications, and these must also be read together with the
previous paragraphs as the next step in the analysis.
Paragraph D reads as follows:
When objections are made by the Personnel Committee regarding
the qualifications of an
employee to fill the position, such objections will be presented to the Union Committee for
Paragraph E reads as follows:
If there is any difference of opinion as to the qualifications of an
employee, the Personnel
Committee and the Union Committee shall take the matter up for adjustment through the
Because paragraph C clearly distinguishes the foreman positions from all other
referenced in paragraph B and the criteria for filling foreman positions is qualification based
criteria for filling all other positions referenced in paragraph B is seniority based, the
qualifications in paragraphs D and E can only refer to those positions set forth in paragraph
foreman positions. Any other interpretation would render the distinction created in
paragraphs B and
C meaningless and "It is axiomatic in contract construction that an interpretation which tends
nullify or render meaningless any part of the contract should be avoided because of the
presumption that the parties do not carefully write into a solemnly negotiated agreement
intended to have no effect." John Deere Tractor Co., 5 LA 631, 632 (Updegraff, 1946).
see Russell, Burdsall and Ward Corp. 84 LA 373 (Duff, 1985); Maritime Service
Committee, Inc. 49 LA 557, 562-63 (Schreiber, 1967).
Article 2, paragraph A, sets forth the Employer's policy regarding seniority quite
shall be the policy of the Highway Department to recognize seniority." This policy is
the language in paragraph B of Article 22 and further supports the analysis above.
The Employer argues that its right to base the selection of employees under Article
paragraph B, upon qualifications rather than seniority stems from Article 3
Reserved. That Article begins with the phrase "Unless otherwise herein provided." As the
analysis demonstrates, Article 22, paragraph B, does provide otherwise and trumps the
argument relating to Article 3.
The Employer quotes language from Elkouri and Elkouri at page 857 in support of its
argument that it has the right to award a position to a junior employee if ". . . the senior
is obviously unfit or unqualified . . ." for the position. This passage cites 18 cases which
proposition. The Employer quotes this passage out of context, however. In each and every
case, this proposition is set forth in relation to a modified seniority clause, not a
strict seniority clause.
In Delta Match Corp., 53 LA 1282, 1283 (Marshall, 1969) for instance, the operative
In case of promotions, demotions, transfers or new jobs created
within the bargaining unit
covered by this agreement, the employee having the greatest seniority shall have preference,
accordance with the provisions of Section 3, below, provided an employee has the ability to
the available work to the satisfaction of the Company.
And in Vulcan Materials Co., 54 LA 460 (Block, 1970) the operative seniority clause
Seniority, ability and experience shall be the factors in awarding
jobs on a promotional basis. If
the abilities and experience of the bidders are substantially the same, seniority shall be the
In R.D. Werner Co., 45 LA 21, 22 (Kates, 1965) the operative
language of the seniority clause read:
. . . the following factors as listed below shall be considered.
And in Public Service Co. Of Colo., 77 LA 313 (Watkins, Chairman, 1981) the
stated in pertinent part:
Other Qualifications. In all matters to promotions, . . . Company
will give full consideration to
seniority. Provided physical fitness, skill, ability, efficiency and other qualifications, related
performance of the job are sufficient, seniority shall govern . . .
In the face of a strict seniority clause such as the one we have here, we look only to
length of service
and the above passage has no application.
The Employer also argues that the trial period outlined in Article 11 has no effect on
of vacancies under Article 22, paragraph B, because it is not a training period. It says that
employee must first be qualified before he or she may become eligible for the trial period.
foregoing analysis concludes that Article 22, paragraph B, is a strict seniority clause, and,
positions must be awarded to the most senior applicant absent reference to qualifications,
trial period outlined in Article 11 is, in effect, a 90 calendar day period within which the
employee awarded the vacancy may demonstrate his or her ability to do the work. The
language of Article 11 is clear on this point as well: " . . . An employee who cannot do the
the new classification within the ninety (90) calendar day
trial period shall be returned to his or her
former position." (Emphasis added.) The Employer argues that the very next sentence of
demonstrates that this trial period is anything but a "guarantee" as the Union argues. That
The Employer may step the employee back to his or her former
position at any time during the
trial period, subject to the grievance procedure.
The Employer seems to argue that it could step the employee back at will and, if that
is the case, the
trial period is no guarantee at all. There may be circumstances where the Employer and the
both agree that the rigors of the job are too much for the employee and he or she will not be
perform the work within the 90-day trial period. In this instance, the Employer has the
ability to step
the employee back. The Employer may even do it unilaterally. However, any such move on
of the Employer would be subject to the standards of reasonableness and may not be taken in
arbitrary or capricious manner, i.e. subject to the grievance procedure. Once again, if the
sentence were construed as the Employer suggests, it would render meaningless the whole
clear language of the trial period article. Sound principles of contract construction will not
such a result.
Both sides argue that past practice supports their respective positions. If the language
agreement is clear and unequivocal, as here, past practice will not vitiate it unless there is
accord of the parties that they have intentionally modified their contract and that the practice
their new agreement. See Metro Transit Auth., 94 LA 349,352 (Richard, 1990). This
does not contain any evidence that this was the case. "A practice . . . based on mutual
be subject to change only by mutual agreement. Its binding quality is due, however, not to
that it is a past practice but rather to the agreement in which it is based." "A contrary
place past practice on a par with written agreement and create the anomaly that, while the
expend great energy and time in negotiating the details of the Agreement, they unknowingly
unintentionally commit themselves to unstated and perhaps more important matters which in
future may be found to have been past practice." Ford Motor Corp., 19 LA 237, 241-242
Both sides have also paid substantial attention in their arguments to the field test
applicants. Because I find that Article 22, paragraph B, is a strict seniority clause and hence
should have been offered to the applicant with the most seniority, the particulars of the field
not be addressed here.
In light of the above, it is my
The County violated Article 22 when it failed to award the Grader Operator position
employee/applicant with the greatest seniority. To rectify this contract violation it shall
offer that position to the most senior of the employees who made application for the position,
Sickinger. This employee shall be entitled to a ninety (90) day trial period, subject to the
of Article 11, within which time he must demonstrate his ability to do the work. If he
position and demonstrates his ability to do the work within the ninety (90) day trial period,
receive back wages and benefits attendant to the new classification from May 15, 2000.
I will retain jurisdiction over this matter pending implementation of this award.
Dated at Wausau, Wisconsin, this 30th day of October, 2001.
Steve Morrison, Arbitrator