BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LA CROSSE CITY EMPLOYEE'S UNION, SERVICE
INTERNATIONAL UNION, AFL-CIO, LOCAL
CITY OF LA CROSSE
(Grievant Mark Johnson)
Davis, Birnbaum, Marcou, Seymore & Colgan, LLP, by Attorney James G.
Birnbaum, 300 Second Street North, Suite 300, La Crosse, WI 54602-1297,
appearing on behalf of the Union.
Attorney Peter B. Kisken, Deputy City Attorney, 400 La Crosse
Street, La Crosse, WI 54602-3396, appearing on behalf of the City.
La Crosse City Employee's Union, Service Employees International Union,
AFL-CIO, Local 180, hereinafter
the Union, with concurrence of the City of La Crosse, hereinafter the City, requested the
Relations Commission to designate a member of its staff to serve as an arbitrator to hear and
decide a grievance dispute
concerning Grievant Mark Johnson, hereinafter the Grievant, and in accordance with the
grievance and arbitration
procedure contained in the parties' collective bargaining agreement, hereinafter the
Agreement. The undersigned,
Stephen G. Bohrer, was so designated. On November 29, 2001, a hearing was held in La
Crosse, Wisconsin. The
hearing was not transcribed. On February 25, 2002, and upon receipt of the last of the
parties' written reply briefs,
the record was closed.
On the basis of the record submitted, the Arbitrator issues the following Award.
The parties did not agree on a statement of the issues. The Union would state the
1. Did the City violate Articles 19 and 12, and/or past
on March 14, 15 and 16,
2001, and additional dates, when it assigned only one operator to run both the Plant and the
2. If so, what is the appropriate remedy?
The City would state the issues as follows:
1. Did the City violate the collective bargaining agreement
when it did not offer overtime to
the Grievant on March 14, 15 and 16, 2001, when it did not need the Grievant to work
another employee, within the same position classification, was available to operate the
2. If so, what is the remedy?
The Arbitrator frames the issues for determination as follows:
1. Did the City violate Article 19 of the Agreement, or a
practice, on March 14, 15 and
16, 2001, or on dates thereafter, when it assigned one Operator to simultaneously operate the
Belt Press machine and the Gravity Belt Thickener machine at its Waste Water Treatment
2. If so, what is the appropriate remedy?
A. Employees subject to this Agreement shall be
compensated at the rate of one and one-half (1
½) times their regular rate of pay for services rendered and hours worked over and
their regularly scheduled work week. In no case shall time and a half be authorized for
services less than forty (40)
hours in one week. For employee's [sic] on a 37 ½
week, overtime shall be at straight
time cash or compensatory time for the first 2 ½ hours of weekly overtime.
. . .
RESERVATION OF RIGHTS
Except as otherwise specifically provided herein, the management
of the City of La Crosse and
the direction of the work force, including but not limited to the right to hire, to discipline or
for proper cause, to decide initial job qualifications, to lay off for lack of work or funds, or
reduction in the level of services, to abolish positions, to make reasonable rules and
governing conduct and safety, to determine the schedule of work, to subcontract work,
the right to determine the methods, processes and manner of performing work, are vested
New rules or changes in rules shall be
posted in each department five (5) calendar days prior to
their effective date unless an emergency requires a more rapid implementation of such rules.
. . .
The City is a municipal employer which operates a Waste Water Treatment Plant
facility, hereinafter the Plant
facility. The City employs various Operators to treat and process the City's sewage fluids.
The Plant's facilities
include two buildings: the Filter Building and the Plant Building. Within the Filter Building
is a machine called the
Filter Belt Press, hereinafter the FBP machine. Within the Plant Building is a machine
called the Gravity Belt
Thickener, hereinafter the GBT machine.
The purpose of the FBP and GBT machines is to separate the solids from the water
within the sewage material.
After the solids are separated, the City transports it to farmers' fields to be used as fertilizer.
The remaining water is
discharged into the Mississippi River. The FBP machine is the Plant facility's most recently
acquired machine and
was first operational in late 1999 or early 2000. The Plant facility runs three consecutive
On March 14, 15 and 16, 2001, Operator Mark A. Johnson, hereinafter the Grievant,
was operating the FBP
machine during the first shift. It was determined by Plant management to continue to operate
the FBP machine beyond
the first shift and into of the second shift. Consequently, Todd Kjos, a second shift
Operator, wasdirected to operate
the FBP machine beginning on the second shift and until that work was done. In addition,
Kjos was to continue to
operate the GBT machine, as previously assigned to him, such that Kjos was simultaneously
operating the FBP and
GBT machines for part of the second shift. Both the Grievant and Kjos are qualified to
operate the FBP and GBT
On March 19, 2001, Grievant filed a grievance alleging that the City violated
Articles 12 and 19, and the
parties' past practice, by denying Grievant overtime hours on March 14, 15 and 16, 2001,
and on any future dates
involving similar circumstances. The parties thereafter advanced their dispute through the
procedure to arbitration.
Additional background information is set forth in the Positions of the Parties and in
the Discussion below.
POSITIONS OF THE PARTIES
The Union asserts that the City violated the express provisions of Article 19 when it
post a work rule change prior to its failure to assign the Grievant overtime hours.
Article 19 states
that "[n]ew rules or changes in rules shall be posted in each department five (5) calendar
to their effective date unless as emergency requires a more rapid implementation of such
to March 14, 2001, the parties would sit down and negotiate the impact of work rule
However on March 14, 2001, and continuing thereafter, the City altered the work rule by
only one Operator to simultaneously work both the FBP and GBT machines. By doing so,
failed to post the work rule change and did not negotiate its impact with the Union. Since
no emergency asserted, the City is in violation of Article 19 which resulted in a loss of
Second, the Union asserts that a past practice hasbeen
established and the City has violated
that past practice. Assistant Superintendent Brueggen testified that from 1980 until February
2000, when Brueggen retired, the rule has been that two Operators are to be assigned
of equipment when the two pieces of equipment are simultaneously operating. If an Operator
available, the practice has been to either have the existing Operator work beyond his shift,
qualify for overtime, and/or to call in another qualified Operator to ensure that one person is
simultaneously operating two pieces of equipment. In addition, the parties have adjusted
internal grievance disputes which are
consistent with the City's past practice. Examples include three instances since
1996where the City's
actions were challenged by the Union with the result of overtime being paid. It should be
the most recent example of this occurred after Brueggen's retirement.
For these reasons, the Union asserts that the grievance should be sustained. As an
remedy, the Union seeks a cease and desist order that the City assign separate operators to
and GBT machines when the machines are simultaneously operating and until such time as
posts a proposed work rule change and negotiates the impact of that change with the Union.
addition, the Union seeks back pay for the Grievant, and all others similarly situated,
Article 12 of the Agreement and for all amounts of lost overtime.
The City asserts that the express language of Article 19 gives management the
to determine its methods of operation. Specifically, it provides that management has the
determine the schedule of work" and "to determine the methods, processes and manner of
work." Because this language is clear, the Union's past practice argument must fail.
The City also argues that the Union is confusing an "operation method" with a
condition." There is nothing in the Agreement which makes the assignment of overtime a
condition. Further, there was no testimony or any of the documents produced at the hearing
refers to a right of overtime. Therefore, there is no guaranteed right of overtime.
As for the Union's alleged related instances of granted overtime, the credibility of
evidence is questioned since it was provided by a former Union steward. Further, these
not relevant because they only amplify the Union's incorrect contention that the City does not
the right to control its operational methods.
Since the Agreement does not require any overtime, then it makes sense for the City
pay the Grievant overtime where there is another employee within the same job classification
was available and who was qualified to operate the FBP machine.
The Union has failed to meet its burden of proof of a clear, longstanding and mutual
Superintendent Paul testified that the FBP machine is easy to operate and that there
mechanisms built into the unit. In addition, and according to Paul, the FBP and GBT
virtually run themselves. Further, Paul notified the Union prior to purchasing the FBP
it was heavily automated. Therefore, Paul's decision to have one Operator simultaneously
the GBT and FBP machines is not suspect.
The City has broad authority to determine its methods of operation and to operate on
efficient basis. It is generally accepted that unless restricted by contract, management has
to make changes as long as the act itself is not wrongful. (Citations omitted). In this case,
made a change in operational methods, as opposed to working conditions, and there is
nothing in the
Agreement which would prohibit this. Rather, the clear language of Article 19 supports this.
Therefore, the Agreement has not been violated and the grievance should be denied.
The Union's Reply
The City ignores the following language in Article 19: "New rules or changes in
be posted in each department five (5) calendar days prior to their effective date unless an
requires a more rapid implementation of such rules." This sentence exists and it is
the issues in this case.
The City's asserted distinction between operational "methods" and "working
an irrelevant semantic exercise. The fact remains that the City changed an agreed practice
been negotiated and posted per Article 19. If the assignment of one Operator to operate the
machine was not a "work rule," then why did the City previously sit down with the Union to
negotiate new rules before posting them and unwaveringly follow the new rule until the
rise to this grievance occurred?
The Union does not assert that the Agreement includes a provision which guarantees
overtime. However, the work rule and past practice require that the City assign a separate
to the FBP machine after the first shift where there is someone else running the GBT
that same shift. Brueggen testified that he regularly polled unit employees to see who was
to operate the FBP machine after the first shift. Note that Article 12 (A), does not require
for simply working more than the eight-hour shift on any given day, but rather only when an
employee works more than 40 hours per week. Working beyond the first shift does not
trigger overtime pay.
The City's Reply
The Union makes errors in its presentation of the facts. The Union references 1997
year in which the parties negotiated work rules. However, this case deals with the FBP
which was not installed until 1999. Therefore, the 1997 date has no significance in this
Union also attempts to establish a past practice of the FBP machine through Brueggen.
the FBP machine was running for only one week at the time that Brueggen had retired.
this is insufficient to establish a past practice. Further, and contrary to the Union, there was
evidence establishing a past practice in the use of assigning hours worked on the FBP
This case involves the assignment of an employee in the most efficient manner for the
operation of the Department. After the Grievant worked the FBP machine during his regular
hours, Superintendent Paul felt that it was unnecessary for the Grievant to continue working
a second shift Operator was available in the same position classification and where there
safety issues involved. The City disagrees that the Grievant is entitled to these hours as
Arbitrators have generally held that in the absence of specific contractual limitations
showing of bad faith on the part of the employer, decisions in the areas of work assignment
reorganization of job classifications fall within the residual rights that adhere in management.
This case is an assignment of work issue which involves "operation methods."
the Union's position, it does not involve "working conditions." The Union has not cited any
cases which hold that the assignment of work is a working condition.
The Union's grievance raises the following questions: 1) whether the City's directive
Operator simultaneously operate two machines is a unilateral change in "working conditions"
a change in "operational methods;" and 2) whether that directive violates the requirement in
paragraph two of Article 19 of the Agreement that "[n]ew rules or changes in rules" be
to implementation. The Union asserts that that language in paragraph two is determinative
City's assertions concentrate on its right "to determine the methods, processes and manner of
performing work" in paragraph one of that same article. Alternatively, the Union asserts
City's directive violates a past practice regarding the non-simultaneous operation of
issues, therefore, as framed by this Arbitrator, are whether the City violated Article 19 of the
Agreement, or a past practice, on March 14, 15 and 16, 2001, or on dates thereafter, when
one Operator to simultaneously operate the Filter Belt Press (FBP) machine and the Gravity
Thickener (GBT) machine at its Waste Water Treatment Plant facility; and, if so, what is the
The issues for determination do not include whether there was a violation of Article
regarding overtime. However, if this Arbitrator determines that there was a violation of the
issue, as framed by this Arbitrator, then Article 12 will become a basis for determining an
remedy. If there was no violation, then Article 12 does not enter into the analysis.
Elkouri and Elkouri, How Arbitration Works, 5th
Edition, p. 684 (1997) discusses the
distinction between "working conditions" and "operational methods" as follows:
The line of demarcation between "operation methods" and
"working conditions" often must
be determined. In one case Arbitrator Whitley P. McCoy noted the difficulty that such
may entail. The agreement of the parties recognized the exclusive right of management to
methods of operation, but it also restricted the right of
management to change working
conditions by requiring negotiations with the union before such changes could be made. The
employer changed the operations of some employees from a noncontinuous to a continuous
the interest of plant efficiency, with the result that the employees were ordered to work
period previously allowed for washing up. Arbitrator McCoy ruled that the order requiring
employees to work through the wash-up period was proper as an incidental result of the
good faith exercise of the exclusive right to determine the methods of operation. He stated
general considerations involved:
The distinction between a change in working conditions,
by the terms of the contract
must be the subject of negotiation prior to its institution, and a change in methods of
operation, which by the terms of the contract is a sole function of management, is not easy
to define or even to make clear by example. Abolition or sharp curtailment of an existing
practice concerning rest time, wash-up time, paid lunch period, furnishing of shower baths
and lockers, matters pertaining to sanitation, safety and health, or such like matter are clearly
changes in working conditions. On the other hand, a change in the use of pot heaters to
McNeill presses or from noncontinuous to continuous operation is just as clearly a change
primarily in methods of operation. The latter changes usually cause, with respect to the
individuals affected, some change in their working habits, but they are primarily and
essentially changes in methods, not in conditions, and as such are exclusively a management
function, subject only to the right of affected employees to resort to the grievance procedure
to correct abuses or hardships such as decreased earnings or stretchout. Of course a change
that was merely in form one method, used as a pretext to institute a change in working
conditions, would not be justifiable.
. . .
Id. (Quoting Goodyear Tire & Rubber Co. of Alabama, 6 LA 681,
687 (McCoy, 1947)).
I find that the City's act of changing from non-simultaneous to simultaneous
machines is a change primarily in operational methods. This kind of change is within the
of those described in the quote just above and is more closely aligned with examples such as
in the use of machinery or a change from a noncontinuous to continuous operational method.
Further, there is insufficient evidence that the City was acting in bad faith. Rather,
evidence indicates that the City was acting in the interests of efficiency and not out of
pretext. In this
regard, Arbitrator McCoy's explanation is helpful:
As long as decisions are made in good faith, in the interest of
efficiency of operation, and do not
involve the imposing on employees of conditions different
from those already existing with respect to other employees on
similar machines or operations,
no injustice is done the employees. No employee has a vested right in the use of a particular
machine that would preclude the company from installing a new one nor a vested right in a
method of operation that would preclude the company from changing that method. If the
machine, or the new method on the old, results in too heavy a work load, too low pay, or
hardship, the employee has his remedy in the grievance machinery. But he does not have the
to delay the exercise of managerial functions by insisting on prior negotiations.
Goodyear Tire & Rubber Co. of Alabama, supra, at 687.
Turning to Article 19, this is a type of management-rights clause. Paragraph one of
19 is somewhat disorganized in structure, probably the result of years of bargained
Nonetheless, that paragraph is sufficiently clear that the City has retained its management
except as specifically provided, including those items listed. It states that ". . . the
the City . . . and the direction of the work force, including but not limited to the right . . .
reasonable rules and regulations governing conduct and safety, to determine the schedule of
. ., together with the right to determine the methods, processes and manner of performing
vested exclusively in Management." However, Article 19 does not end at this point.
Paragraph two of Article 19 states that the City must post "[n]ew rules or changes in
. . . five (5) calendar days prior to their effective date . . ." On its face, this paragraph is a
provision regarding "rules" such that the City is required to notify the Union prior to their
implementation. The Union, however, would have me interpret the word "rules" in
in isolation from the word "rules" in paragraph one of Article 19. Thus, and according to
view, the phrase "new rules or changes in rules" in paragraph two is broader in scope than
. . governing conduct and safety" in paragraph one and includes other "rules" that the parties
to, including the alleged work rule that changed in this case.
I do not find thatthe Union's interpretation of the word
in Article 19 ispersuasive.
That word is specifically referenced in both paragraphs of Article 19 and it seems clear to
me that the
second reference is to be viewed in the context of the first. Thus, when the Department is
"new rules or changes in rules," that language is referring to those "rules . . . governing
conduct." If the parties had intended a broader understanding of the word "rules" in
of Article 19, then it was incumbent upon them to state it. I will not read additional
Article 19 where the language by itself is already clear.
As discussed above, I find that the City's actions in this case are changes primarily in
operational methods. In adopting Arbitrator McCoy's reasoning, and applying it to this case,
find that "rules . . . governing conduct and safety" in paragraph one of Article 19 are likely
matters pertaining to sanitation, safety and health, i.e., pertaining to changes
primarily in working conditions. Although an argument could be made in this case that
a change from
the non-simultaneous to simultaneous operation of machines affects conduct andsafety, such a
change is still primarily a change in operational methods. Therefore, the changes that
occurred in this
case do not trigger the notice requirements in paragraph two of Article 19 and that provision
not come into play. The facts in this case are changes of "rules" primarily in operational
are outside the ambit of paragraph two of Article 19. Under the present form of
Article 19, the City
is not obligated to notify the Union of such changes prior to implementation.
The Union's argument on past practice does not apply. Since the language in
Article 19 is
clear with respect to the kinds of rules that the Department is required to provide advance
the Union prior to implementation, evidence of past practice cannot be considered in
matter before me. Further, and contrary to the Union's assertion, there is no evidence of
that were negotiated and posted regarding the non- simultaneous or simultaneous operation of
machines at the Plant facility.
I am aware that the City's change in operational methods from non-simultaneous to
simultaneous operation of the FBP and GBT machines affects those employees, including the
Grievant, who may otherwise qualifyto work additional hours for
overtime. However, this change
is primarily and essentially a change in operational methods and there is insufficient evidence
City was acting in bad faith or that its acts were used as a pretext. Consequently, the loss of
overtime is an incidental result of the City's exercise of its right "to determine the methods,
and manner of performing work." Further, any "rules" that were changed as a result of the
Department's directive to assign one Operator to simultaneously operate both the FBP and
machines on the dates in question did not trigger the requirement in Article 19 for the City to
the Union and post "new rules or changes in rules . . ."
Based upon the foregoing and the record as a whole, it is the decision and award of
undersigned Arbitrator that the City did not violate Article 19 of the Agreement, or a past
on March 14, 15 and 16, 2001, or on dates thereafter, when it assigned one Operator to
simultaneously operate the Filter Belt Press machine and the Gravity Belt Thickener machine
Waste Water Treatment Plant facility. Therefore, the grievance is denied.
Dated at Eau Claire, Wisconsin, this 21st day of May, 2002.
Stephen G. Bohrer, Arbitrator