BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AMERICAN FEDERATION OF STATE,
COUNTY AND MUNICIPAL EMPLOYEES,
AFL-CIO LOCAL UNION NO. 67
CITY OF RACINE, WISCONSIN
Mr. John P. Maglio, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box
624, Racine, Wisconsin 53401-0624, appearing on behalf of American Federation of State,
and Municipal Employees, AFL-CIO Local Union No. 67, referred to below as the Union.
Mr. Guadalupe G. Villarreal,
Deputy City Attorney, City Hall, 730 Washington Avenue, Room
201, Racine, Wisconsin 53403, appearing on behalf of the City of Racine, Wisconsin,
below as the City or as the Employer.
On January 27, 2000, I issued a decision, captioned by the Commission as Dec.
No. 6010, to
address the following issues stipulated by the parties at a hearing conducted on
October 11, 1999:
Did the Employer violate the Collective Bargaining Agreement
when it filled the position of Sign
Mechanic (HU-10) on August 10, 1998?
If so, what is the appropriate
The Award issued in Dec. No. 6010 reads thus:
The Employer did violate the Collective Bargaining Agreement
when it filled the position of Sign
Mechanic (HU-10) on August 10, 1998.
For the purpose of
determining the appropriate remedy, I will maintain jurisdiction over the
grievance for a period of not less than forty-five days from the date of issuance of this
will permit the parties to determine whether a mutually agreeable remedy can be bargained.
stipulation on the issue is possible, then evidence or argument restricted to the issue of
The Union and the City stipulated that I should retain jurisdiction over the matter until
procedure had run its course. After its completion, the parties met on several occasions to
a series of remedial issues, then requested further hearing. That hearing was conducted on
5, 2001 in Racine, Wisconsin. Madonna L. Rank prepared a transcript of that proceeding
it with the Commission on December 26, 2001. The Union entered its argument at the close
hearing, and the City filed a brief on April 2, 2002.
The parties stipulated the following issues remain concerning the appropriate remedy
Is James Kaplan, Edward Burgess, Greg Nelson, Gabriel
Simpson or Mark Gronholm entitled
to any back pay wages as a result of the Arbitrator's award rendered on Grievance No.
If so, what are the appropriate back wages due?
A. Definition of a Grievance. Should a
difference arise between the City and Union or an
employee concerning the interpretation, application or compliance with this Agreement . . .
difference shall be deemed to be a grievance and shall be handled according to the provisions
B. Subject Matter. A
written grievance shall contain a clear and concise statement of the
grievance and indicate the issue involved, the relief sought, the date of the incident or
place and the specific section of the Agreement involved.
. . .
J. Decision of the Arbitrator. The decision
of the Arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to interpretation of the contract area
alleged breach occurred. The Arbitrator shall not modify, add to or delete from the express
of the Agreement.
. . .
Hours and Wages
. . .
6. Overtime shall be divided as equally as
possible at least quarterly during the course
of the calendar year, and overtime Lists shall be posted in each department, premised
upon the above-noted allocation of overtime equalization.
. . .
After a series of discussions concerning remedy, the parties executed the following
Memorandum of Agreement:
It is hereby agreed between the undersigned parties, the City
Racine (Employer), and
AFSCME, AFL-CIO, Local 67, (Union), that the following terms and conditions shall
posting procedure in implementing Arbitrator Richard B. McLaughlin's arbitration award
on Grievance No. 33-98:
1 . The following positions shall be
reposted and in the following order starting with the Sign
a. Sign Mechanic
b. Garage Worker
c. Street Sweeper
d. Building Maintenance Worker - Garage
e. Parking Meter Collector
f. Tire Repair/Mechanic
g. Parking system Utility Worker
h. Equipment Operator - Parks (posted November,
2. The following positions shall not be posted:
a. Park Maintenance Worker
b. Truck Mechanic
c. Tree Trimmer/Arborist
d. Building Complex
e. Park Equipment Worker
f. Truck Driver - DPW
g. Equipment Operator - Parks
(posted June, 1999)
h. Truck Mechanic
3. The parties agree to discuss back wages, if any,
at the time the successful candidate stays on
the posted job for 30 days.
4. The parties agree that if the
successful candidate for any position that is posted is the current
holder, then no back wages shall be payable.
5. The back wages, if
any, shall be calculated from the time any of the jobs listed in
Paragraph 1. were first filled until the date a new employee is selected and assumes the
position as a result of the new first posting.
6. The parties agree that
Arbitrator Richard B. McLaughlin shall retain jurisdiction until
the back wage issues, if any, are resolved.
7. The resolution of the
implementation of this Arbitrator's Award shall not serve as a precedent
for any other dispute which may arise between the parties.
The positions that the City posted under this agreement and on which they could not
make whole relief are addressed individually below.
Under a reorganization process, the City's Department of Public Works includes four
divisions: Street; Solid Waste; Bridge; and Traffic. Prior to the reorganization, the Traffic
was part of the Department of Transportation. Prior to the posting that prompted Grievance
No. 33-98, the City granted a seniority preference to Traffic Division employees posting for
vacancies. If no applicant with intra-departmental seniority took a position, the City then
preference to employees in other departments prior to consideration of seasonal or temporary
employees. Grievance No. 33-98 questioned whether the contract permitted the elimination
intra-departmental preference for Traffic Division vacancies. City practice, prior to and
Grievance No. 33-98, did not necessarily demand that vacancies be posted within the Traffic
prior to a City-wide posting. The Personnel Department often posted vacancies City-wide as
efficiency measure. If no intra-departmental applicant received a position, the Personnel
would then move to extra-departmental applicants, thus sparing the delay of further posting.
Joe Golden is the Street Superintendent. He testified that it was not unusual for the
offer a posted position to four or more different applicants until a qualified and willing
the position. For that reason, Golden advises prospective applicants to sign for any position
have an interest in.
The Sign Mechanic Position
This Traffic Division vacancy led to the grievance that led to Dec. No. 6010. The
initially posted it in late July of 1998. Ricky Hoffman is the most senior City employee who
the initial posting. He accepted the position, trained in it, and then decided to return to his
position of Truck Driver. The next five most senior applicants refused the position, and the
awarded the position to Santos Moreno. Under the stipulation, the City reposted it in late
of 2000. James Kaplan received the position as a result of that posting, based upon his
within the Traffic Division.
Kaplan testified that he did not sign the original posting because he knew his seniority
the Department of Public Works would not rank him near the top of the applicant list.
Hoffman informed Kaplan that he intended to take the job, and Kaplan knew Hoffman had
considerably more seniority with the Department of Public Works than he did. Hoffman
assumed some of the duties of the Sign Mechanic position to determine if he would accept
position. Signing the first posting, to Kaplan, was an exercise in futility.
At the time of the initial posting, Kaplan worked in the Traffic Division as a Meter
Collector/Parking System. In July of 1999, Kaplan posted into a position of Building
Worker in the equipment maintenance garage at the Department of Public Works. He signed
second posting because he knew his Traffic Division seniority would rank him near the top
applicant list, and he assumed that the reposting process triggered by the parties' stipulation
bump him from the Department of Public Works.
While Moreno served in the position of Sign Mechanic, he earned $6,572.86 in
During that same period, Kaplan earned somewhere between $66.30 and $142.32 in overtime
two positions he occupied.
The Tire Repair/Mechanic Position
For purposes of this proceeding, the City initially posted this position in September of
Edwin Burgess was, at the time of the initial posting, working as the Maintenance Worker
in the Traffic Division. That position is within Pay Range HU-14, and Burgess received a
per hour add-on for serving as Lead Man.
Burgess signed the initial posting. The City offered him the position and he accepted
Under the stipulation, the position was posted again. Burgess signed this posting, but was
successful applicant, because his seniority within the Department of Public Works was not
to place him at the top of the applicant list. Burgess trained two applicants, who ultimately
the position. He also trained the third applicant, Gabriel Simpson, who accepted the position
sometime in December of 2000.
Burgess originally posted into the Tire Repair/Mechanic position because it produced
cents per hour increase, and he hoped it would provide more overtime. Ray Chacon
Burgess' duties in the Traffic Division while Burgess worked in the Tire Repair/Mechanic
The City reorganized the position after Burgess' left it, essentially moving the maintenance
duties to a position rated at Pay Range HU-10. Burgess bumped back into the Traffic
at the HU-14 Pay Range. The City ultimately discharged Simpson, and Burgess successfully
into the Tire Repair/Mechanic position in September of 2001.
Between September of 1999 and December of 2000, Burgess received $251.24 in
compensation as a Tire Repair/Mechanic. During this period, Chacon earned $7,668.78 in
compensation in Burgess' former position. Simpson, at the time of the initial posting for
Repair/Mechanic, served in a position compensated at the HU-7 Pay Range. For the period
Burgess served in the Tire Repair/Mechanic position under the initial posting, Simpson
$2,728.36 less in the HU-7 Pay Range than he would have had he been offered the Tire
Repair/Mechanic position instead of Burgess.
Simpson did not testify.
The Parking System Utility Worker Position
For purposes of this proceeding, the City initially posted this Traffic Division
compensated at Pay Range HU-10, in late October of 1999. Mark Gronholm was the
applicant. Prior to this posting, Gronholm worked in the Department of Public Works on a
construction crew in the Street Maintenance Division, compensated at Pay Range HU-19.
bumped back into this position when Simpson assumed the Tire Repair/Mechanic position.
difference between the compensation Gronholm earned at Pay Range HU-10 while a Parking
Utility Worker, and the compensation he would have earned had he remained in the
Public Works is $5,155.15. Gronholm testified that he posted for the Traffic Division
because of its work hours, not for overtime or wage considerations.
The Garage Worker Position
The parties submitted documentation indicating that the City posted this position on a
City-wide basis in January of 1999. Greg Nelson's seniority placed him seventh, in
seniority, on the list
of applicants. The documentation indicates none of the more senior applicants were qualified
job or willing to accept it. The City reposted the position in April of 2000, and awarded it
Neither Nelson nor Dobbins testified.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Closing Statement
The Union contends that the City caused the remedial dilemma by improperly posting
of openings after the Union warned the City about what could happen. The issue is thus how
each employee adversely affected by the City's actions whole for the damages flowing from
contract violation. The Sign Mechanic position was the subject of the original grievance.
filled the position on September 14, 1998. Kaplan did not sign the first posting because he
concluded it would serve no purpose. He signed the second posting, and received the
While filling the position between the first and second posting, Moreno earned $6,572.86 in
compensation that Kaplan would have earned had he filled the position from September 14,
The labor agreement equalizes overtime across the unit, and thus precludes any chance of
recouping this amount. It follows that the City should make Kaplan whole by paying him
The second position is Garage Worker. The City awarded Nelson the position after
posting. Nelson left a higher rated position to fill the vacancy, thus giving up forty cents per
Under the parties' agreement, the City reposted the position and awarded it to Dobbins. As
each employee suffered damages. Nelson suffered the loss of forty cents per hour for all
worked between the time he assumed the role of Garage Worker on April 14, 1999, and the
Dobbins took the position on July 10, 2000. Dobbins is entitled to the difference between
overtime he earned during that period and the amount he would have earned had he been
the position on April 14, 1999. This demands a City payment to Dobbins of $526.08.
The next disputed position is that of Tire Repair/Mechanic. The City initially
position to Ed Burgess, then reposted the position and awarded it to Gabriel Simpson. While
occupied the position, he left his former position, which was filled by Chacon. Chacon
substantial amount of overtime, earning $7,668.78 during this period while Burgess earned
$251.24. The City should make Burgess whole by compensating him for the difference of
Beyond this, the City needs to make Simpson whole for the wages he could have earned but
City's wrongful award of the position to Burgess. The difference between the hourly rate
earned at his former position and that of the Tire Repair/Mechanic position is ninety-eight
hour. The City thus needs to pay Simpson ninety-eight cents for each hour he worked
initial award of the position to Burgess and its eventual award of the position to Simpson.
The next disputed position is that of Parking System Utility Worker. Gronholm left a
rated position in response to the City's initial posting of this position. The difference in
sixty-two cents per hour in 1999 and sixty-five cents per hour in 2000. Due to the stipulated
reposting procedure, Gronholm was displaced from the position of Parking System Utility
As a result, the City should make him whole by paying him $5,155.15, which is the
between the amount he earned as a Parking System Utility Worker and the amount he would
earned in his former position.
The Union concludes that the disputed positions reflect the final piece of the remedial
left after the parties resolved all other issues. The dollar amounts requested, regardless of
be awarded to give effect to the Award in Dec. No. 6010 and the parties' subsequent
The City's Brief
After a review of the evidence submitted at the remedial hearing, the City contends
Union's requested remedy is outside the scope of the arbitrator's award and Kaplan, Burgess,
Simpson and Gronholm are not entitled to back pay as a result of the Employer's action."
City "made some pay adjustments to employees" affected by the
posting of the Sign Mechanic position "certainly did not give carte blanc to the
wording of the
arbitrator's award as the Union believes."
Among the claimants, Kaplan is "the only employee who could have posted for the
Mechanic position." He failed to do so, however, and his failure cannot be rewarded in this
proceeding. His reliance on another employee's stated desire to take the posted opening was
unreasonable, particularly since the evidence shows senior employees often decline postings.
Nor do the other claimants make a persuasive claim. To grant any of the claims
"anyone who is willing to say he was going to sign up for a position if it offers a possibility
pay." Intra-departmental postings go City-wide if there are no departmental applicants who
the position, and none of the claimants has a persuasive excuse for not signing the Sign
Beyond this, the Union's position draws the grievance "outside of the subject matter
initial grievance." The violations the Union seeks to remedy "occurred before or long after
violation date of August 10, 1998, or (have) nothing to do with the Sign Mechanic position."
The City concludes that the remedy should be limited to the Sign Mechanic
that no remedy awarded beyond that already implemented by the parties.
The stipulated issue on remedy poses arguably more difficult problems than the
grievance. On a general level, the Union asserts that employees should be in no worse
a result of City actions than if the City had properly given an intradepartmental preference
Division employees. Viewed as a legal matter, the Union asserts a measure of damages
the law of tort and of contract. In Brockmeyer v. Dun &Bradstreet, 113
Wis.2d 561, 576
(1983), the Wisconsin Supreme Court drew the line between the measure of damages in these
areas of law thus:
In tort actions, the only limitations are those of "proximate cause"
or public policy
considerations. Punitive damages are also allowed. In contract actions, damages are limited
concepts of foreseeability and mitigation.
The Union asserts a tort-like measure of damages by contending that the City had a
duty to abide by
the contract. By ignoring Union warnings, the City willfully violated the duty. The
is contract-like by asserting the bumping process the parties set in motion in response to Dec.
6010 was foreseeable. It is tort-like to the degree the Union asserts the City must be
its willful conduct.
Elements of the proposed remedy that can be characterized as punitive strain my
authority. Such a remedy has little support in arbitration authority, see generally,
Arbitration, Hill & Sinicropi (BNA, 1991) at Chapter 19. The Union
does not assert the damages
are punitive, but the City appropriately questions at what point events flowing from the
grievance pose separate disputes that exceed whatever make whole authority flows from the
grievance questioning the Sign Mechanic posting.
Even if the Union's arguments fall within the scope of my jurisdiction over the Sign
grievance, they do not establish a need for relief beyond that already agreed to. Union
overstate the nature of the City's breach of the labor agreement as a general matter and as
to the facts. On the general level, there is no evidence to establish how the Union warned
of the risk of its position regarding the first Sign Mechanic posting. Even if the Union
the City, there is no evidence of City bad faith.
To the contrary, the evidence shows a long-simmering, good faith disagreement
defensible views of the contractual impact of an administrative reorganization. The
dates from 1995. The Sign Mechanic posting and grievance date from August of 1998. The
contractual impact of the reorganization poses something other than a conflict of right and
Whether DPW or Traffic Division employees get a preference for intradepartmental
to pose clearly identified City interests against clearly defined Union interests. From the
position, the vacancy is filled in either event. As the bumping process shows, the value of
preference varies from the perspective of DPW to Traffic Division employees.
The original grievance underscored the difficulty of the dispute by seeking impact
This complicated the grievance, as noted in Dec. No. 6010 at 10:
The issue of remedy is more difficult than is immediately
apparent. At hearing, the parties
stipulated that the grievance demanded contract interpretation only, and posed no issue
remedy. The parties' post-hearing stipulation includes a remedial issue, but only the Union
addressed it. Because I am uncertain if the parties share a common view of the issue of
have decided to note the remedial issue in the Award below, and retain jurisdiction over the
Thus, the evidence establishes a good faith disagreement, not willful City action
violating a clear
contractual duty. This undercuts the Union's general contention that any adverse impact of
bumping process must be held against the City. It makes unpersuasive any claim to a strictly
measure of damages. Much of tort and contract law regulates the conduct of parties related
a single transaction. This makes it imperative that damages fully compensate a wronged
may have no further relationship with the adverse party.
This grievance, however, focuses on the closely bargained issue of seniority and
involves parties with
a longstanding and continuing relationship.
Analysis of the individual claims advanced by the Union does not overcome these
considerations. The Garage Worker controversy concerns Nelson and Dobbins. There is no
regarding Dobbins' claim (Transcript at 13 and 76). The Union claims that Nelson received
position improperly, leaving a job that paid more in base wages and overtime than the posted
Nelson did not testify, and the record contains no persuasive evidence to support the Union's
However, the claim prefaces similar claims made regarding other positions and warrants
Support for the Union's theory is not self-evident. The Union's contention that the
contractual duty the City violated is so clear that it should be held responsible for any
on the employee undercuts the Union's remedial claim. If the contract is that clear, why did
employees bid for the Traffic Division openings? Can their claim for the positions be
reasonable? Was the Union under no obligation to warn unit members of the clear violation
If Nelson wanted the position enough to post for it in spite of lower base wages or overtime,
benefit did he receive as a result of improperly receiving the position? How should any such
be weighed against the financial claim he asserts against the City? As noted above, the
issues on the
merits of the grievance are more complex than the Union's remedial claims imply. The
posed need no answer on this record, for the original decision and the parties' remedial
put the intra-departmental preference for Traffic Division employees back into place. The
post-hearing evidence poses no persuasive reason to go beyond that.
Kaplan's claim underscores these considerations, and adds others. Kaplan did not
first posting, in significant part because Hoffman advised Kaplan that he would take the
Kaplan, knowing Hoffman had considerably more DPW seniority than he had, viewed
posting as an exercise in futility. Kaplan's testimony was honest and candid. This cannot,
obscure that Kaplan failed to take any action to protect his interest in the position. The City
openings City-wide to avoid multiple postings for the same position, and routinely sorts
several applicants to fill a position. Kaplan's failure to sign the first posting cannot
reasonably be held
against the City.
This conclusion should encourage interested applicants to sign postings. Doing so
harm on the applicant. The alternative complicates posting disputes by demanding an after
inquiry regarding the basis for an individual's refusal to sign.
The Union's request for Kaplan highlights the impact of inconsistencies touched on
If the contractual duty the Union seeks to enforce is sufficiently clear that the City is liable
adverse impact from the original posting, does the City have a disciplinary
interest in Hoffman's conduct to discourage Kaplan from signing? Employee
an employer to liability can invoke an employer's disciplinary interest, see, for example,
Enterprises, 103 LA 783 (Doering, 1994). This is not to say this issue is posed here.
it highlights that the logical appeal of the Union's attempt to trace all adverse consequences
original breach to the City must be tempered by common sense constraints.
The Union's attempt to paint the City's action as a clear violation undermines the
its own position. If Kaplan was egregiously denied roughly $6,500, Soreno was egregiously
by the same amount. If the Union's portrayal of the duty is accurate, it is less than apparent
Soreno or other DPW employees who signed the posting bear no responsibility for
the wrongful act. The City derived no clear benefit from preferring a DPW over a Traffic
employee. Dec. No. 6010 resolved the contractual impact of the City's actions. To adopt
Union's theory of damages risks turning a basic seniority dispute into complex civil
Simpson did not testify, and there is no persuasive evidence to support the Union's
The evidence and argument concerning the Tire Repair/Mechanic and Parking System
Worker positions do not pose issues beyond those addressed above. Burgess understandably
that he bounced around quite a bit to end up in the same place. Gronholm spent time in a
that paid less than the one he left. In each case, the employees acted without any City
for reasons of their own choosing. This does not mean neither suffered adverse
However, the turmoil reflects a bumping process that is the result of a bargained seniority
the concern of an employee found less senior to another. That turmoil is inevitable if
seniority is to
prevail. The remedial issue is whether that turmoil is sufficiently remarkable that it warrants
extraordinary remedy above that already agreed upon by the parties. As noted above,
nothing in the
evidence affords a persuasive basis to do so. To stray beyond the parties' agreement
limit of my authority as an arbitrator, and raises more troublesome issues than it solves.
The parties' stipulation notes that the resolution of this dispute "shall not serve as a
for any other dispute". I stress that the considerations stated above reflect my understanding
unique facts posed by this grievance. The issue as I understand it and as I have addressed it
question the generally appropriate rule for damages traceable to a single posting. Rather, it
whether this grievance poses unique facts warranting relief beyond the make-whole relief
agreed to by the parties. The Union's concern that Article XI, Section E, 6 complicates the
of make-whole relief and warrants special consideration for the overtime claims of the
persuasive force, but presumes their entitlement to relief beyond that already agreed to.
Neither James Kaplan, Edward Burgess, Greg Nelson, Gabriel Simpson nor Mark
is entitled to any back pay wages as a result of the Arbitrator's award rendered on Grievance
With the issuance of this Award, I relinquish jurisdiction over the grievance.
Dated at Madison, Wisconsin, this 10th day of April, 2002.
Richard B. McLaughlin, Arbitrator