BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE LABOR ASSOCIATION OF WISCONSIN,
VILLAGE OF EAST TROY
Mr. Kevin Naylor, Labor Consultant, The Labor Association of
Wisconsin, 2835 N. Mayfair Rd., Wauwatosa, WI 53222, appearing on behalf of the Union.
Ms. Linda Gray, Attorney at Law, Gray, Hudec & Oleniczak,
L.L.P., 2847C Buell Drive, P.O. Box 287, East Troy, WI 53120, appearing on behalf of the
The Union and the Village named above are parties to a 1998-2000 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
that the Wisconsin Employment Relations Commission appoint an arbitrator to hear and
grievance of Carol Coombe. The undersigned was appointed and held a hearing on August
in East Troy, Wisconsin, at which time the parties were given the opportunity to present
evidence and arguments. The parties filed briefs by October 8, 2001.
The parties ask:
Did the Village violate the terms of the collective bargaining
agreement, as well as a well
established past practice dating back to July 27, 1994, when it required the Grievant to work
days per week? If so, what is the appropriate remedy?
The Grievant is Carol Coombe, who started working part-time as an Account Clerk
Village in 1994. On July 27, 1994, the former Village Administrator, Sharon Crowe, sent
Grievant a letter, which stated in part:
This letter will confirm the Village of East Troy's offer of
part-time employment and your
acceptance of the position of Account Clerk.
It is understood that you will be available
on Tuesdays, Wednesdays and Thursdays. Initially,
the Village anticipates that you will work approximately 24 hours a week. However, once
been trained and become accustomed to the position, the hours may vary between sixteen
week and 24 hours a week. Working hours are 8:00 a.m. to 4:30 p.m. There is a fifteen
break each morning and a ½ hour break for lunch.
The Grievant worked the hours noted above without a change, except for a couple of
when she worked for another department. On December 26, 2000, the current Village
Kenneth Witt, notified her that as of January 15, 2001, her working hours would be changed
8:00 a.m. to 1:00 p.m., four days a week. She was offered the option to work either
Thursday or Tuesday through Friday. The Grievant chose Monday through Thursday.
Grievant learned of the change in hours, she filed a grievance.
Witt is the Grievant's supervisor and decided to change the Grievant's hours. Witt
change for various business reasons starting when a Deputy Clerk/Treasurer was
hired and job
duties were reassigned in August of 1999. The Grievant was given some additional duties to
at the DPW, and some of her office duties at the Village Hall were reassigned to other
people in the
office. When the DPW backlog was caught up, the workload for the Grievant was reduced,
accounted for the reduction in her hours from 24 to 20. Witt testified that the reason for
days to cover four days and changing the starting and quitting time was to have better
the office through lunch periods. Witt tried to discuss the change with the Grievant, but she
to discuss it with him.
THE PARTIES' POSITIONS
The Union argues that the Village has a contractual obligation to discuss changes in
operations which affect the work schedules of employees, and it does not have an unfettered
management right to schedule employees as it alone sees fit. The Grievant and the Village
written agreement establishing the Grievant's work week and number of hours, which clearly
that the Grievant will be available to work on Tuesdays, Wednesdays and Thursdays,
and that her hours may vary between 16 and 24 hours a week. However, when the
her hours, she is now required to work an additional day per week while receiving four
The Union cites Article 28, Change in Operation, and states that the contract clearly
the Village to meet with the Union before making changes in operations which may cause a
for full or part-time employees. The Union complains that the decision to unilaterally change
Grievant's hours was made while the parties were in the process of negotiating the terms and
conditions of a new labor agreement.
The change in the Grievant's workweek violates a written agreement, the Union
Grievant was hired with the express understanding of the hours and days of work. Now the
finds those terms no longer binding. However, the Village relied on that very document to
reduction in hours in response to the EEOC. Thus, the Village honors the conditions on one
in that written agreement, but not on the other hand.
Finally, the Union submits that the change in the workweek violates a long standing
practice of more than six years. The past practice has even been codified by a signed written
The Village asserts that the management rights provisions of the collective bargaining
agreement are clear and unambiguous and must be given their plain meaning. The
decision must draw its essence from the collective bargaining agreement, and the Arbitrator
to the plain meaning of the words used in that agreement when interpreting it. Under Article
Village has the specific right to determine the starting and quitting times, the number of
hours to be
worked, and to establish work schedules. The Village had previously changed the Grievant's
and quitting time. The change that took place on January 15, 2001, was in order to cover
and the window in the Village Hall and to provide service to residents paying bills or to
The Village notes that it gave the Grievant at least 12 days notice of the change.
Union does not deny the Village's right to modify work schedules but argues that the
not be required to work four days per week based on an alleged past practice.
The Village submits that the use of past practice to interpret the agreement is
where the collective bargaining agreement addresses the subject matter of the grievance.
practice may be used in the absence of written contractual language. However, in this case,
contract addresses the issue and gives the Village the right to control and direct its
is no need to go beyond the bargaining agreement to determine whether a binding past
been established. The Village never accepted nor agreed that the Grievant's work schedule
not be changed.
The Union relies on a 1994 letter from the former Village Administrator to establish
agreement to permanently fix the Grievant's work schedule. The labor contract
there are no other written or oral agreements between the parties, and that matters not
the collective bargaining agreement are reserved to the Village. The collective bargaining
was entered into as of January 1, 1998, long after the Grievant became employed by the
1994. The Grievant should have been aware of the terms and conditions negotiated by the
her behalf. Accordingly, the Village concludes, it has the right to change her work schedule.
The 1994 hiring letter from the former Village Administrator does not rise to the
level of a
written agreement between the parties and cannot serve to circumvent the terms of a
bargaining agreement. The hiring letter is nothing more than just that a letter given
to a prospective
employee at the time she was being hired. It is not a written agreement between the parties,
cannot supersede the collective bargaining agreement.
The Village is correct in stating that Article 3, Management Rights, clearly gives the
the right to change starting and quitting times, the number of hours to be worked, and to
work schedules. The specific language in Article 3 is:
10. Determine lunch, rest periods and cleanup times; the starting
and quitting times and the
number of hours to be worked.
11. To establish work schedules.
The Management rights cited above are clear and unambiguous, and the Arbitrator
need to resort to any past practice to interpret such clear language. While past practices may
to help interpret ambiguous language or to fill in gaps where no language covers an issue,
do not need to look at past practices where the language is clear and unambiguous, such as in
case. Moreover, clear contract language takes precedent over any past practice that is
The Village could change the Grievant's work schedule from three days a week to
a week as well as change her starting and quitting times and reduce the number of hours. If
wants established work schedules in the contract, it must bargain for such specific language.
However, it is also true that the collective bargaining agreement must be read as a
Article 28 states:
Before the employer introduces major changes in operations
which affects the employment
schedule for regular full-time and part-time employees, the
Employer shall meet and review such change with the Union in an
effort to minimize the possible
hardship involved for all parties.
While the contract allows the Employer to change hours and schedules, Article 28
limitation on the Village simply to meet with the Union before it does so. Article 28
must be given
some meaning, and if it did not apply in this case, it would never apply. Clearly, the change
three days to four days with different quitting times and different number of hours was a
in operations that affected the employment schedule of a part-time employee. Therefore, the
Employer was obligated to meet and review the change before imposing it. It is a minimal
requirement the Employer does not have to agree to the
status quo and still retains the right to
change hours and work schedules, so long as it fulfills its obligation to meet first with the
While the Village Administrator offered to meet with the Grievant, there is no evidence that
Employer met and reviewed the change with the Union.
Accordingly, while the Village had the right to change the Grievant's hours and work
under Article 3 of the collective bargaining agreement, it violated Article 28 of that
failing to meet and review the change with the Union before it implemented the change.
The grievance is denied in part and granted in part.
The Village had the right under Article 3 of the collective
bargaining agreement to change the
starting and quitting times, the number of hours worked, and the number of days worked by
Grievant. The Village violated Article 28 of the collective bargaining agreement by not
reviewing the change in the Grievant's work schedule and hours before implementing such
As a remedy, the Village is ordered to restore the Grievant's hours to those worked before
15, 2001, until such time as it meets and reviews the change of work schedule and hours
Union. The Union is to make itself available at a reasonable time for such a meeting and
Arbitrator will retain jurisdiction until February 15, 2002, in order to resolve any disputes
scope and the application of the remedy ordered.
Dated at Elkhorn, Wisconsin, this 5th day of December, 2001.