BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 1269, AFL-CIO
CITY OF MENASHA (UTILITY)
(Student Help Grievance)
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of the Union.
Davis & Kuelthau, S.C., Mr. Kirk D. Strang, on behalf of the
The above-captioned parties, herein "Union" and "Utility", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Oshkosh, Wisconsin, on January 5, 2001, and July 10, 2001, at which time the parties
should retain jurisdiction if the grievance is sustained. The hearing was transcribed and the
subsequently filed briefs and reply briefs that were received by January 22, 2002.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties did not jointly agree on the issue, I have framed it as follows:
Did the Utility violate Article XXVI of the contract when it
assigned student help to perform
meter reader duties and, if so, what is the appropriate remedy?
The Utility for years has employed student help to perform various duties, including
meters. Manager of Business Operations Sandra Brink thus testified that the Utility has
following students to perform some of the meter reader duties (Utility Exhibit 2):
1985 Tim Waters
2 yrs. Paul Hewitt
1991 Jennifer Kropidlowski
1992 Sara Knorr
1992 Sara Knorr
1996 Colleen Martenson
1997 Colleen Martenson
1997 Sara Knorr
1998 Colleen Martenson
1999 Amanda Smith
2000 Amanda Smith
Article XVII of the parties' predecessor 1998-1999 contract provided in pertinent
. . .
C. Temporary: A temporary
employee is a person hired for a temporary opening of not more
than ninety (90) calendar days duration and who at the time of his hire is notified that he is
being hired as a temporary employee. For summer help, the union may allow
the ninety (90) calendar day duration, if requested by the Utility. Time limits therein
extended by mutual consent of the parties. Temporary employees shall not accrue seniority
nor be entitled to any fringe benefits under this Agreement. The rate paid temporary
employees is at the discretion of the Commission, but will generally be compatible with rates
paid for similar work in the community, but will not exceed a rate which is twenty-five
($0.25) cents per hour below the starting rate for employees in the department for which the
hired. At no time shall temporary employees be working
permanent employees are on
layoff status. (Emphasis added).
The Union in 1999 contract negotiations proposed the following clause dealing with
summer help (Joint Exhibit 7):
Article XVII Definition of Employees. Revise as follows:
A. Remove following sentence from
paragraph C: "For summer help, the Union may
allow extensions of the ninety (90) calendar day duration, if requested by the Utility."
B. Add new paragraph
D that reads as follows: "Summer Help: Summer help is defined
as students hired during school breaks to help with non-skilled labor not to exceed
600 hours per calendar year. Summer help will not be used for relief work of Union
The parties subsequently agreed to the following language which is now part of
of the current contract:
. . .
D. Student Help: Student help is
defined as students hired during school breaks
to perform non-skilled labor not to exceed 600 hours per calendar year per
student. Student help will not be used for relief work as set forth in
. . .
Article XXVI in turn states:
Any employee who has qualified to work in relief capacity of a
particular job, shall be
compensated while in such capacity at the hourly wage which is one step advanced from the
wage he is presently paid on his normal assignment.
Any employee who has qualified to work in
relief capacity of the Water Maintenance Foreman
and Line Foreman job, while assigned to work such capacity for a minimum of three and
on-half (3-½) hours, shall be compensated at the hourly wage which is one step
advanced from the hourly wage
he is presently paid in his normal assignment.
Timothy Gosz, the President of Local 1269, participated in the 1999 contract
leading to the current contract. He testified that the Union proposed contract language
use of student help because student help was improperly "being used in relief capacity" and
the Union wanted to "prevent student help from being placed in a Union job to fill in when
on vacation or sick, or whatever functions relief work had been used for in the past." He
"I don't recall much discussion of that particular issue" in negotiations; that he remembers
Edward Williams, who was the Utility's chief negotiator, then "reading off a few things. .
."; that the
parties never discussed making an exception for meter readers; that meter readers could not
for the job completely . . ."; that they could only do "some of the functions . .
.occasionally"; and that
the Utility in the past has not used student help to work as relief for meter readers.
On cross-examination, Gosz testified that the Utility recently had been using student
work as meter readers, which is "why the Union chose to address it." He also said that the
the 1999 contract negotiations never disagreed with Attorney Williams when he read off the
duties student help could perform which included meter reading, and that no full-time
been laid off because of the use of student help.
Meter Reader Pamela Knorr explained that student help has performed the following
Well, they would --- they had an understanding of how to use the
hand-held recorders, which you
would record the readings for meter reading, they would load/unload the routes, get final
at times, would hang notices, which is part of our duty also, hang disconnect notices, they
that. So they did a wide a vast majority of what we would perform as our job
duties. I'd add one
thing to that. We would mention to them if they would notice things might be out of order
recorder or something, or a meter is missing, we needed to know that information so correct
would be taken care of, would correct the problem, so --
She also said that utility workers formerly filled in as meter readers, but that that
"nightmare, estimating when one of the meter readers was off. . ." On cross-examination,
testified that she did not know whether meter reading is part of a utility worker's job
whether utility workers even have job descriptions.
Manager of Business Operations Brink testified about the difficulty of filling in for
readers when they are on vacation, and said that student help for most of the last 16 years
performed some meter reader duties. She added that the Utility does not pay set-up relief
employees perform the duties of a meter reader; that meter reading duties are in the utility
job description; that the Utility believes meter reading represents
unskilled work; and that student help does not have a job description. She also said
that the Union
in contract negotiations never proposed to change the duties student help have historically
that the Union in negotiations never objected to having student help perform all of a meter
job duties; and that student help has never performed relief work for relief pay.
On cross-examination, Brink testified that the Union in negotiations agreed when
Williams listed meter reading as the kind of work that student help would continue to
also said "we wanted to continue to be able to use meter readers in the summer as we've
done in past
summers", and that the Utility in negotiations never specifically said that it wanted student
perform all of a meter reader's job duties.
Attorney Williams, the Utility's chief negotiator in those negotiations, testified about
bargaining notes (Utility Exhibit 5) and explained how he on September 28, 1999, told Union
negotiators that "meter reading", along with certain other examples, represented the kind of
that student help would continue to perform under the new language. Williams said that the
did not disagree with him, which is why he believed the Utility would go on using student
perform meter reader duties. On cross-examination, Williams testified that he listed "meter
as a single act rather than the general duties of a meter reader because he is not a meter
because he does not know all of a meter reader's job duties.
Union president Gosz was recalled as a witness and testified that the Union never
negotiations that student help could perform all of a meter reader's regular job duties, and
Attorney Williams listed various examples of student work which included reading meters,
it to mean, you know, read a meter here or there, but not to
do the job as they are now." On cross-examination, he answered, "No, I do not"
when asked whether
he disputed that Attorney Williams read off meter reading as the kind of duty student help
continue to perform.
POSITIONS OF THE PARTIES
The Union claims that the Utility violated the contract when it assigned meter reader
to student help because "clearly bargained language" limits the use of such help; because
cannot be used to "provide relief for vacationing meter readers"; because the meter reader
job is not
"non-skilled"; and because student help has not been limited to so-called "non-skilled" meter
duties. The Union also asserts that sustaining the grievance will not "unreasonably burden
Utility", as it seeks a remedy that prohibits the Utility from using student help in any future
The Utility contends that the grievance is without merit because the contract
authorizes the use of summer help for meter reading"; because "It is reasonable to conclude
collective bargaining agreement authorizes the use of summer help for meter reading"; and
the parties' past practice and bargaining history establish that student help can perform meter
This case mainly turns on the interplay between Article XVII, Section D, and
More specifically, it centers on whether meter reader duties can be performed by student
help for up
to 600 hours pursuant to Article XVII, Section D, which deals with the "Definition of
or whether such duties cannot be performed because they constitute the kind of "relief work"
prohibited under Article XXVI which deals with "Relief Work".
Both parties claim that the contract is clear and unambiguous and that their respective
positions should be sustained. Article XVII, Section D, supports the Utility's case if one
the references therein to "relief work" and Article XXVI do not encompass meter reader
that assumption is correct, then student help can read meters for up to 600 hours. Article
supports the Union's case if one assumes that summer help do, in fact, perform "relief work"
they fill in for meter readers when they are on vacation. Given these plausible but
explanations, I find that the contract is ambiguous, which is why it is necessary to examine
evidence relating to past practice and bargaining history.
As for past practice, I credit manager Brink's testimony that student help have
meter reading duties for "most of the time" since 1985 (Utility Exhibit 3), and that meter
perform their job by entering data on their hand-held recorders and by performing the other
related above by meter reader Knorr. In addition, Brink testified without contradiction that
help have never been paid the relief pay provided for in Article XXVI when they read
indicating that the parties did not consider such work to be "relief work".
Given that well-developed past practice, it was incumbent upon the Union in
obtain clear contract language limiting the use of student help for that purpose. For as noted
Arbitrator Richard Mittenthal in his seminal article on past practice, certain "existing
be continued until changed by mutual consent. . ." See Mittenthal, "Past Practice And The
Administration of Collective Bargaining Agreements", From Arbitration and
Proceedings of the 14th Annual Meeting of the National Academy of
Arbitrators (BNA, 1961), pp.
Arbitrator Mittenthal also points out:
. . .
Consider next a well-established practice which serves to
some ambiguity in the
agreement. Because the practice is essential to an understanding of the ambiguous provision,
becomes in effect a part of that provision. As such, it will be binding for the life of the
And the mere repudiation of the practice by one side during the negotiation of a new
unless accompanied by a revision of the ambiguous language, would not be significant. For
repudiation alone would not change the meaning of the ambiguous provision and hence would
detract from the effectiveness of the practice.
It is a well-settled principle that where
practice has established a meaning for language
that is subsequently used in an agreement, the language will be presumed to have the
it by practice. Thus, this kind of practice can only be terminated by mutual agreement, that
is, by the
parties rewriting the ambiguous provision to supersede the practice, by eliminating the
entirely, etc. Id, at 56.
. . .
Here, there was no "mutual agreement" in the 1999 negotiations to limit the use of
help to perform meter reader duties. In addition, Attorney Williams on behalf of the Utility
September 28, 1999, expressly referred to "meter reading" duties as the kind of unskilled job
student help would continue to perform and the Union then never objected to his comments.
contrary, Union president Gosz testified that "I don't recall much discussion of that particular
Absent any "mutual agreement" in those negotiations to change it, that past practice
for the reason stated by Arbitrator Mittenthal above. As a result, the Utility can go on using
help to perform meter reader duties, just as it has in the past.
In light of the above, it is my
1. That the Utility did not violate Article XXVI of the contract when it assigned
help to perform meter reader duties.
2. That the grievance is therefore denied.
Dated at Madison, Wisconsin, this 8th day of May, 2002.