BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL UNION 695
CITY OF MADISON
Mr Brad Wirtz, Labor Relations Analyst, City of Madison
Human Resources Department,
City-County Building, Room 501, 210 Martin Luther King, Jr. Boulevard, Madison,
Wisconsin 53709, appearing on behalf of the City of Madison.
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill M. Hartley, 1555 North Rivercenter Drive, Suite 202, P.
O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of Teamsters Union
Local No. 695.
City of Madison, hereinafter City, and Teamsters Local Union No. 695, hereinafter
are parties to a collective bargaining agreement that was in effect at all times relevant to this
proceeding and which provides for final and binding arbitration of certain disputes. A
initiate grievance arbitration was filed with the Commission on May 21, 2001.
Commissioner Paul A.
Hahn was appointed to act as arbitrator on July 17, 2001. The hearing took place on
2001 at the offices of Teamsters Local Union No. 695 in Madison, Wisconsin. The hearing
transcribed. The parties were given the opportunity to file post-hearing briefs. Briefs from
parties were received by the Arbitrator on January 14, 2002. The parties were given
and declined to file reply briefs. The record was closed on January 14, 2002.
The Union states the issue as follows:
Did the City violate the parties' collective bargaining
when it failed to advance the
grievants to the next wage progression step?
If so, what is the appropriate remedy?
The City states the issue as follows:
Does the collective bargaining agreement require the
to include time spent on
authorized leave of absence without pay and time spent in layoff status in determining an
wage progression schedule?
Did the City violate the collective bargaining agreement when
failed to credit the grievants
with the time they spent on layoff toward advancement to the next wage progression step?
If so, what is the appropriate remedy?
ARTICLE 8 GRIEVANCE AND
. . .
8.4 The arbitrator shall
have no power to change, modify or add to or detract from any of the
terms of this Agreement. The award of the arbitrator within the term of authority conferred
upon him/her by this Agreement shall be final and binding upon both parties. Any question
of excess of authority, fraud or arbitrary action shall be subject to the usual legal remedies.
. . .
ARTICLE 14 - WAGES AND
14.1 All employees shall be
subject to wage progression in accordance with the following wage
progression schedule. The biweekly base wage rate salary and progression schedule set forth
in Addendum A is based on a forty (40) hour workweek, notwithstanding other provisions
of this Agreement to the contrary.
Step One-First Six (6) Months of
Continuous Service--Seventy-Five Percent (75%) of the
maximum biweekly base wage rate.
Step Two-After Six (6) Months of
Continuous Service--Eighty Percent (80%) of the
maximum biweekly base wage rate.
Step Three-After Eighteen (18) Months of
Continuous Service--Eighty-Five Percent (85%)
of the maximum biweekly base wage rate.
Step Four-After Thirty (30) Months of
Continuous Service--Ninety Percent (90%) of the
maximum biweekly base wage rate.
Step Five-After Forty-Two (42) Months of
Continuous Service--One Hundred Percent
(100%) of the maximum biweekly base wage rate.
. . .
14.14 All permanent
full-time and permanent part-time employees shall receive longevity pay,
subject to the following schedule and terms and conditions:
A. Upon completion of
48 months of continuous service, 3% shall be added to the base
hourly rate of pay;
B. Upon completion of 108 months of continuous service, an
additional 3% (for a total
of 6%) shall be added to the base hourly rate of pay;
C. Upon completion of 156 months of continuous service, an
additional 2% (for a total
of 8%) shall be added to the base hourly rate of pay;
D. Upon completion of 180 months of continuous service, an
additional 1% (for a total
of 9%) shall be added to the base hourly rate of pay;
E. Upon completion of 204 months of continuous service, an
additional 1% (for a total
of 10%) shall be added to the base hourly rate of pay;
F. Upon completion of 228 months of continuous service, an
additional 1% (for a total
of 11%) shall be added to the base hourly rate of pay;
G. Upon completion of 288 months of continuous service, an
additional 1% (for a total
of 12%) shall be added to the base hourly rate of pay.
Longevity payments shall be effective on
the first day of the biweekly pay period following
the completion of the required length of service.
Any time spent on authorized leave of
absence without pay and any time spent on layoff
status shall not act to break the continuous employment. However, any leave time or layoff
time in excess of thirty (30) days shall not be considered employment time for the purpose of
. . .
. . .
23.6 A. An
employee shall lose seniority only by discharge, voluntary quit, or
more than a five (5) year layoff. In the event of a layoff, an employee so laid off shall
be given ten (10) days notice of recall mailed to his/her last known address. The
employee must respond to such notice within three (3) days after receipt of notice and
must actually report to work not later than seven (7) days after receipt of the certified
notice unless otherwise mutually agreed to. In the event the employee fails to comply
with the above, he/she shall lose all seniority rights under this Agreement.
. . .
ARTICLE 24 LAYOFF AND
24.1 For full-time employees,
Transit Division seniority shall be defined as the most recent date of
hire as a permanent full-time Transit Division bargaining unit employee. For part-time
employees, Transit Division seniority shall be defined as the most recent date of hire as a
part-time Transit Division bargaining unit employee. The Employer shall post and maintain
master seniority roster.
. . .
24.8 SHORT TERM
A. Layoffs not to exceed four
weeks in a calendar year shall not be subject to the bumping
process. Such layoffs shall occur in one (1) week increments.
. . .
D. Such layoff shall not affect
accrual of vacation, sick leave, longevity, or seniority, nor shall
the City alter its contributions for any benefits.
STATEMENT OF THE CASE
This grievance involves the City of Madison and Teamsters Local Union
No. 695. (Jt. 1) The
Union alleges that the City violated the collective bargaining agreement by failing to advance
Grievant and similarly situated employees through the contractual wage progression schedule
they were on layoff from their employment. (Jt. 2)
The City operates a municipal bus company and employs bus drivers, mechanics and
The labor agreement between the parties provides in Section 14.1 a wage progression
schedule by which employees over a period of time as noted above advance through the wage
progression schedule based on their continuous service. The Grievant is a bus driver; he and
situated driver/employees were, on or about June 3, 2000, laid off from the City due
conditions. The Grievant was recalled on August 27, 2000. Similarly situated
employees, on whose
behalf the grievance was filed, were laid off for similar periods of time, all of which
weeks of duration. (Jt. 2) During the period of layoff the Grievant and
similarly situated employees'
benefits were put on hold and the employees did not advance through the wage progression
of the labor agreement for the time that they were on layoff.
The Grievant upon returning to work determined from his pay stub that he had not in
received a step 3 pay raise provided for in Section 14.1 of the labor agreement after 18
continuous service. The Grievant pursued the matter with appropriate representatives of the
Failing to receive a satisfactory answer from the City as to why he did not progress through
progression schedule even though on layoff since his continuous service had not been broken,
Grievant filed a grievance on behalf of himself and other employees and members of the
essence, the Union position is that even though employees are on layoff, they continue to
through the wage progression schedule under the terms of the collective bargaining
City takes the position that while the employees' seniority from date of hire is not broken,
not receive credit toward wage progression and other benefits during the time they are on lay
The Union filed the grievance in this matter on April 9, 2001 and it was denied by a
representative of the City on the same date. (Jt. 2) The parties processed the
grievance through the
grievance procedure of the parties' collective bargaining agreement. The matter was
arbitration. Hearing in the matter was held by the Arbitrator on October 1, 2001, in
Wisconsin. No issue was raised as to the arbitrability of the grievance.
POSITIONS OF THE PARTIES
The Union takes the position that Section 14.1 (Wage Progression) of the labor
is subject to more than one single, reasonable, apparent understanding, and therefore the
is ambiguous under established arbitration principles. The Union posits that the real issue
Arbitrator is the definition of continuous service which is open to more than one
evidenced by the parties' dispute. While not defined in Section 14.1, the Union argues
continuous service is defined in Section 14.4, longevity, by the statement that "any time
authorized leave of absence without pay and any time spent on layoff status shall not act to
continuous employment." The Union argues that this definition of continuous employment or
is applicable not only to the longevity provision under which section the definition is stated
also to the continuous service language in the wage progression schedule under well
of construction that a word used by the parties in one sense is to be interpreted as employed
same sense throughout the contract.
The Union avers that the definition of continuous employment in Section 14.14 must
to both the longevity and wage progression provisions; the exception providing that after 30
employees will not receive credit for longevity is merely an exception because the contract,
Section 14.14, clearly references only longevity. Reviewing the contract as a whole, the
that the only exception to the continuous service language in the labor agreement is the
of longevity pay and the parties, in drafting the contract, did not limit the definition of
service found in 14.14 only to longevity and could have said so if that is what the parties
The Union further argues that the Madison City Ordinance introduced by the City, which
during layoff status that employees shall not receive service credits, is in conflict with the
and therefore the labor agreement controls based on the Union's position.
Through testimony of its witnesses, the Union argues that it was established that
continuous service language was negotiated into the labor agreement in the early 1980's it
the intent of the parties that continuous service would not be broken and that employees who
on layoff status would advance through the wage progression schedule the same as if they
working. The Union argues that the terms of the collective bargaining agreement are to be
in a logical manner consistent with the language and intent of the parties and in this case,
intent of the parties is verified by the testimony of a Union witness who was present at the
the original negotiations of the subject language, the intent so expressed should be honored
Lastly, the Union argues that the City failed to establish a binding past practice. The
argues that the testimony and evidence presented by the City is self serving and the alleged
of adjusting wage step increases was not supported by such evidence. The City's evidence
certain employees have had their longevity increases adjusted as a result of
a medical leave is not the subject of the present grievance and therefore is irrelevant to
Further, the evidence of medical leaves for which the employees had their wage and benefit
adjusted does not specify the length of the medical leaves, and the evidence does not clearly
the reasons the employees had their longevity or wage step increases adjusted. The City's
the Union submits, do not meet the requirements of past practice. Further, the Union argues
practice was unknown to the Union and was not accepted by it. The City, the Union
to provide credible evidence to establish any binding past practice that the City's use of a
agreed-to practice of freezing wages and benefits for a driver who loses his CDL license is
or relevant to the issue before the arbitrator.
The Union asks the Arbitrator to order the City to cease and desist from counting
time on layoffs and leaves of absence against them for purposes of wage progression in
The Union requests that the Arbitrator require the City make whole all employees who have
adversely affected by the City's improper interpretation of Section 14.1.
The City takes the position that there is no logic in employees being moved through
progression schedule under 14.1 when they are not working and such would violate the very
for a wage progression schedule. Wage progression, the City argues, is to allow bus drivers
develop knowledge of the job and to develop skills that only can be learned over a period of
The City points to the fact that 14.1 talks about continuous service based on a 40-hour work
and that it is not logical that one can interpret this sentence without looking at the
requirement of a
40-hour work week. Therefore, the City argues Section 14.1 is not ambiguous, as
stated by the
Union, but clearly requires that in order to move through the wage progression schedule
must actually be working.
Noting other sections of the labor agreement, the City submits that the contract, as
the contract provisions stated above, differentiates between a short term leave or layoff,
weeks, and a long term leave or layoff, over four weeks. Benefits are affected for the long
layoff, which includes the Grievant and similarly situated employees in this case, and short
layoffs where benefits are not affected. The City considers the wage progression schedule
of wages thereunder as benefits.
The City submits that the Union's statement that the only benefit not affected by
layoff is the
wage progression, when all other benefits are clearly affected by a layoff under the contract,
make sense and is not supported when the contract is considered as a whole. The City
only under Section 23.6 of the seniority article is continuous service broken and
was not broken in this case. In other words the employees'
seniority date, i.e., their time in service from date of hire, was not changed and the
back to the same wages and benefits after layoff that were in effect for those employees
started the layoff. Continuous service was not broken under 14.14, the City submits; it
have been broken under 14.1.
Further the City argues that Section 14.14 applies only to longevity because
that section deals
only with longevity.
The City argues that its consistent practice, not only with the employees represented
Union but with employees represented under other City unionized labor agreements, has been
on leaves and layoffs the benefits of the employees, including movement through wage
schedules, have always been frozen during the term of the layoff if the layoff exceeded 30
While there have been few layoffs with the members of the Union under the agreement in
City witnesses clearly stated that the practice has always been to freeze benefits and wage
movement. This the City contends is logical as continuous service is really another name for
which is not broken except for those breaks in service mandated by Section 23.6, such
voluntary quit, layoff over five years, etc.
The City argues that the CDL language, where the parties agreed to incorporate
the contract to confirm a practice that benefits and wage progression will be frozen for
on a leave of absence while they no longer have their CDL driver's license, establishes that
knew of the City's practice. Therefore, under applicable arbitration case law, the Union
acknowledged and agreed to the City's consistent practice. This past practice the City
the intent of the parties regarding continuous service and what happens to wage progression
movement when employees of the City are on layoff.
Lastly, the City submits that the testimony of the Union witness who represented the
during the original contract negotiations should be discounted because of the almost 20 years'
passage of time and the fact that it is in the witnesses' self interest to explain that it was the
both parties that employees would continue to progress through the wage progression
on layoff. The City submits that no physical evidence, such as notes from the negotiations,
agreements or the like, was introduced by the Union to substantiate the uncorroborated
by the witness that the Union's interpretation is correct.
The City in conclusion submits that the language of the collective bargaining
the City's binding past practice support the City's actions and that the Union's attempt to
evidence is without merit. The City requests that the Arbitrator deny the grievance.
This is a contract interpretation case. The Grievant on behalf of himself and other
situated employees filed a grievance alleging that the City violated the collective bargaining
by not advancing the employees through the contractual wage progression provisions of the
while they were on layoff. (Jt. 1 & 2) The issue before me revolves
around the question of whether
while the employees were on an extended layoff in excess of two months their continuous
broken so that the time on layoff was not counted toward moving them through the
month wage progress schedule in Section 14.1 of the Agreement. The Union argues
Grievant's continuous service was not broken, and he should have moved through the wage
progression schedule while on lay off the same as if he had been working. The City argues
the Grievant's general or overall seniority was not broken, the time that he was layoff was
should not be counted toward wage progression. The Union argues that the language is
and I agree.
One of the reasons for the dispute between the parties is that the labor agreement
them fails to specifically define the meaning of "continuous service". Further, there exists
language within the wage progression section itself to tell the parties or the arbitrator what is
happen to an employee's movement through wage progression if the employee is on layoff.
Union argues that the last paragraph of Section 14.14 makes clear that continuous service is
broken for layoff under 14.1 with the only exception being for longevity, the subject of
The City argues that 14.14 only applies to longevity and the agreement read as a whole is
benefits, including wages, are frozen for long term layoffs.
Both parties offered testimony and evidence to establish their respective positions on
intent of the agreement as it relates to the issue before me. The wage progression language
originally placed in the parties' labor agreement approximately twenty years ago during the
negotiations that altered the bus system from a private entity to a public
carrier. (Er. 3) Union
witness Shipley who negotiated that first contract as the bargaining unit representative and
subsequent agreements, testified that he agreed to a wage progression schedule in exchange
longevity to ensure that his members were receiving the same benefits as other City
units. (Tr. 25) Shipley also testified that in "those days" the parties were not
worried what happened
during layoffs because there weren't any due to the difficulty of hiring bus
drivers. (Tr. 27) Shipley
further testified that it was his clear understanding and the understanding of the bargainers
City that continuous service would not be broken if an employee were on layoff and that
the employee came back from layoff, he would receive credit toward his wage progression
as if he had been working. (Tr. 27) Only in the case of longevity, Shipley
testified, would time on
layoff not count after a layoff of thirty days. (Tr. 26)
Shipley's testimony was not corroborated by any other witness nor was it refuted by
witness who was present at the negotiations for the first contract. The testimony was also
corroborated by any documentation such as bargaining notes or tentative agreements.
While I credit the Union's testimony that that may have been the Union's intent
service and wage progression and lay off, this clearly has not been the understanding of the
evidenced in the history of the City's treatment of wage progression and benefits when an
is on a layoff.
Three of the City's employees involved in accounting and payroll convincingly
for all the City's bargaining units, including the bargaining unit involved in this case, fringe
accumulation and time toward wage progression are frozen for the period an employee is on
or a leave of absence over thirty
days. (Tr. 41, 42, 48, 52, 57 & 72)
It is apparent that there have
been few if any layoffs at the City for this bargaining unit as normally, before the layoff that
occasioned this case, the layoffs have been of short duration and volunteers are found to take
layoff. (Tr. 75) But the record does demonstrate that for leaves of absence the
City's practice has
been in effect for this bargaining unit. (Er. 4)
My analysis of the record to this point is to determine whether either parties'
conclusive as to any agreed to or clear intent regarding wage progression for bus drivers
layoff. I find that neither parties' evidence is conclusive. I also find that the testimony did
that the Union has not acquiesced in the City's afore described practice as there is no
evidence that the Union was aware of the practice, particularly as this may have been the
the City's practice was applied to a layoff with this bargaining unit.
I respect the parties admonition in section 8.4 of their agreement that I should not
modify, or add to or detract from the terms of their agreement; I do not believe I do so by
their agreement as they have requested and where the current contract language does not
define the answer to the issue in this case. I also agree with the cases cited by the parties
suggest the parameters and guidelines an arbitrator should follow in a contract interpretation
Above all, it seems to me the interpretation should be logical and not illogical, particularly
parties have not agreed on either a logical or illogical interpretation of their labor agreement
as applied to this case.
Reviewing the labor agreement in its entirety I find that the words "seniority and
service" as used by the parties are synonymous. The term seniority is defined in
Section 24.1 of the
agreement under the article dealing with layoffs. It simply means that seniority starts for an
from his most recent date of hire. While continuous service may not be specifically defined,
generally means employment or work on behalf of an employer. It could be argued that
means actual work for the City but I believe that would add a term to the contract. When
provided in Section 14.1 for a wage progression schedule of forty two months of continuous
they clearly intended that to be calendar months of employment (seniority) with the City.
Therefore, continuous service or seniority is only broken pursuant to
Article 23, Seniority,
Section 23.6, for discharge, voluntary quit or more than a five year layoff. The issue then
is whether during a layoff, even though the Grievant's overall seniority or
continuous service was not broken, should his time on layoff have been credited toward
accumulation of time necessary to advance to the next step of the wage progression schedule
same as if he had been not on layoff and were driving a bus.
The Union has argued that the language under 14.14 "Any time spent on authorized
absence without pay and any time spent on layoff status shall not act to break the continuous
employment. However, any leave time or layoff time in excess of thirty (30) days
shall not be
considered employment time for the purpose of computing longevity. . . ." should be
apply to the wage progression schedule in Section 14.1 in that only with longevity is
exception that employees after thirty days will not have time on layoff and leave counted
time necessary to receive the next step of longevity improvement.
I first of all note that it is clear that the language quoted above falls under a section
agreement specifically dealing with longevity, not wage progression. Further there is nothing
the language in 14.14 to the wage progression section, 14.1. And in the first labor
longevity language came first in then article 16 and under a separate subheading. (Er. 3)
I believe there is strong contractual evidence that the language in Section 14.14 applies only
issue of longevity. Further the word "however" means "nevertheless" or "notwithstanding"
would seem to tie the first sentence about break in continuous service clearly to the second
dealing with longevity. (Er. 3) If the language regarding a layoff shall not
break continuous service
was to also apply to the wage progression language, it is curious that over a contractual
of twenty years it was not more specifically referenced. It may be as testified to by Union
Shipley that layoffs were never a concern before this grievance and so there was no need to
specific reference. But, I am unconvinced that the language in Section 14.14 dealing with
applies to any other section of the agreement including the wage progression of Section,
Therefore, the language of Section 14.1 has to stand on its own; the issue still is
Grievant's layoff acted to break his continuous service for purpose of computing his
through the wage progression schedule while he was on layoff. The Union offered no
refute the City's testimony that for leaves of absence, medical leaves or layoffs in other
units in excess of thirty days the City freezes or does not accumulate the employee's service
the receipt of benefits. There was no conclusive proof that this bargaining unit has ever had
before of a duration in excess of thirty days. The language of the agreement supports the
of benefits. (Jt. 1) The City likens benefits to mean wages and one could argue
that the term benefits
more often is used to describe fringe benefits rather than pure wages. I also note that
that his goal was to have his bus drivers and mechanics in this bargaining unit treated for
wage progression no differently than the City's employees in other city bargaining units. (Tr.
If that was his goal, then it is clear the City has consistently prorated benefits and adjusted
increases in wage progression schedules to account for employees being off on a leave of
layoff in excess of thirty days. It seems apparent, if the Union's position were to prevail in
it would receive a benefit not received by other City bargaining units.
I find that the City's interpretation of the agreement as to what should have happened
Grievant's advancement through the wage progression schedule while he was on layoff to be
logical given the language of the entire agreement and the actions of the City with this and
bargaining units. As I stated earlier and as cited to me by the Union cases, my decision
logical. The Grievant testified that he asked City representatives at a meeting in June of 2001
preceding the layoff what would happen to his wage progression during layoff. The Grievant
suggested a hypothetical that he could be on layoff five years, before a break in service, and
to the 42 month of service step of the wage progression schedule as if he had been working
time. The Grievant claims that he never received an answer; City witnesses do not
question being asked. (Tr. 18, 64 & 71) Either way the
hypothetical posits the issue and my finding.
I also note that there was no direct evidence from either party on the reasons behind the
progression language. Given the language of the whole agreement and the record evidence
not seem logical that a junior employee on layoff would advance through the wage
schedule the same as a more senior employee not on layoff who had to drive a bus in order
advance his wage progression.
This clearly is a subject best left for the bargaining table but as arbitrator that is not a
open to me, and I make this decision based on my view of the record evidence and determine
that seems best in accord with the entire labor agreement.
Based on the foregoing and the record as a whole, I issue the following
The City did not violate the collective bargaining agreement when it did not advance
Grievant and similarly situated employees through the wage progression schedule for the time
were on layoff. The grievance is denied.
Dated at Madison, Wisconsin, this 8th day of February, 2002.