BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
RHINELANDER CITY EMPLOYEES LOCAL 1226,
CITY OF RHINELANDER
(Walker Overtime Grievance)
Mr. Michael Wilson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 8033
Excelsior Drive, Suite B, Madison, Wisconsin, appearing on behalf of Rhinelander City
Local 1226, AFSCME, AFL-CIO.
Mr. Philip Parkinson, City Attorney, City of Rhinelander, 135
South Stevens Street, Rhinelander,
Wisconsin, appearing on behalf of the City of Rhinelander.
Rhinelander City Employees, Local 1226, AFSCME, AFL-CIO, hereinafter "Union,"
requested that the Wisconsin Employment Relations Commission appoint a staff arbitrator to
and decide the instant dispute between the Union and the City of Rhinelander, hereinafter
accordance with the grievance and arbitration procedures contained in the parties' labor
Lauri A. Millot, of the Commission's staff, was designated to arbitrate the dispute. The
held before the undersigned on December 14, 2001, in Rhinelander, Wisconsin. The hearing
transcribed. The parties submitted post-hearing briefs, the last of which was received on
2002. Based upon the evidence and the arguments of the parties, the undersigned makes and
the following Award.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties agreed at hearing that there were no procedural issues in dispute and
that the issue to be determined was:
Whether the provisions of Articles 2, 3, 4, 5, 6 and 7 or any
other article of the collective
bargaining agreement apply to this employee (i.e. the Grievant, Jeremy Walker)?
The parties further stipulated that the appropriate remedy if the Arbitrator finds that
collective bargaining agreement applies to the employee is time and one-half pay for the
May 7-11, 2001 and May 21-25, 2001.
ARTICLE 2 RECOGNITION
The Employer recognizes the Union
as the exclusive collective bargaining agent in matters of pay,
hours of work and conditions of employment for regular, part-time and seasonal Employees,
who are Union Members and who are employed in the following Departments of the City:
Public Works, Sewer and Water Construction, Water and Waste Treatment Plant Operators,
Cemetery an Parks, Golf Course, excluding Department Heads, supervisory and confidential
ARTICLE 3 DEFINITION
A Regular Employee is one who has successfully
completed his/her probationary period in a
permanent position with full annual employment.
A Part-Time Employee is one who
works throughout all or most of the year in a position which does
not normally furnish full-time employment.
A Seasonal Employee is one who
has successfully completed his/her probationary period in a position
which is seasonal in nature and in which employment is available for a period of three to six
A Temporary Employee is one who
works in a position created by the pressure of extra work.
Temporary appointments shall not exceed three months in duration, except for Golf Course
and Parks & Recreation
Employees, in which case employment is available for a period of
up to nine months. For any
individual, a subsequent temporary appointment shall not be made before three months has
since the termination of the previous temporary appointment.
. . .
ARTICLE 5 UNION MEMBERSHIP
Both the Employer and the Union
recognize the rights of each Employee under Section 111.70 of the
Wisconsin Statutes in regard to Union Membership. In the interest of labor harmony, the
Employer recommends that eligible Employees become members of Local 1226, AFSCME,
AFL-CIO, upon completion of 30 days of employment.
. . .
C. FAIR SHARE
. . .
As to new Employees, such deduction
shall be made on the last pay period of the month
following the first six (6) months of employment.
. . .
ARTICLE 6 PERSONNEL
. . .
Employees, hired after January 1, 1984, without prior regular or part-time
service to the City, shall serve a six-month probationary period. Time spent as a temporary
Employee shall not be counted. During this period they may be discharged for cause without
recourse. Upon satisfactory completion of the probationary period, an Employee shall have
all rights and privileges granted under this Agreement, computed from the date of
. . .
seniority of each regular, part-time, and seasonal Employee hired after January
1, 1984, shall begin with the Employee's starting date of regular, part-time, and seasonal
employment, provided, however, that no time prior to a discharge or quit shall be included.
Employee's earned seniority shall not be diminished by
temporary layoff or authorized leaves
of absence or any other contingency beyond the control of either party to this Agreement.
. . .
ARTICLE 7 PAY PROCEDURES
PAY PERIOD. The
pay period shall be two weeks, and paychecks shall be issued every other Friday,
a week following the end of the pay period.
WORK DAY AND WORK
The work day shall consist of 8 hours from 7:00 a.m. to
3:00 p.m. with a 15 minute lunch break
commencing at noon to be taken on the job site.
The normal work week shall
consist of 5 consecutive, 8-hour days, Monday through Friday, making
a total of 40 hours.
The Waste Treatment operators shall alternate shifts and
receive a pay differential of seventeen (17)
cents per hour on the second shift and twenty-one (21) cents per hour on the third shift. The
work schedule shall be attached hereto and titled Addendum II.
. . .
work performed outside the normal schedule, as specified in Article 7, Section B,1;
B, 2; B, 3; B, 5; shall be paid for at the rate of one and one half times the regular rate,
for Employees specifically otherwise provided for.
. . .
ARTICLE 8 GRIEVANCE
. . .
. . .
The Employer and the Union may agree
upon an arbitrator. If the Employer and the Union
cannot agree upon an arbitrator, the Union shall request one be
selected by the Wisconsin Employment Relations Commission
(WERC). The arbitrator's
decision shall be final and binding upon both parties, and that arbitrator shall have no
alter in any way or add to the provisions of this agreement.
. . .
ARTICLE 9 EMPLOYEE
Sick Leave credit shall be accumulated as follows:
Employees shall accumulate
sick leave credit at the rate of one day for each month of
. . .
After thirty (30) days of employment, regular Employees shall be allowed the
following holidays with pay at their regular rate: New Years Day, Memorial Day,
Independence Day, Labor Day, the Monday of the week in which Armistice Day occurs,
Thanksgiving Day, Christmas Eve from noon on, Christmas Day, Good Friday and one
floating holiday to be granted between the dates of May 1 and November 1.
. . .
The Employer agrees to provide the following benefits to the Employees.
All Employee contributions shall be withheld from wages.
. . .
3. Hospital and
Surgical Insurance. After thirty (30) days employment, all regular
Employees may participate in the hospital and surgical insurance program, . . .
. . .
ARTICLE 11 MISCELLANEOUS
CLOTHING. The Employer shall furnish the following special clothing: Rain
suits for Employees when needed, aprons for Employees of the garbage department and those
operating the compressor, and coveralls for lift pump men. The Employer shall provide
leather gloves for
Employees who are engaged in handling bricks, cement work,
etc. The gloves shall be kept
in the stockroom and Employees will draw them when needed and return them when they are
finished with them.
The Employer shall pay the Meter Reader
an annual clothing allowance of $100.00. The Meter
Reader must have completed his probationary period to be eligible for the payment.
. . .
ARTICLE 12- MANAGEMENT RIGHTS
It is agreed that the management of the City and its business and
the direction of its working
forces is vested exclusively in the Employer, and that this includes but is not limited to the
the right to plan, direct, control and supervise the operation of the work force, . . .
WASTEWATER TREATMENT PLANT
SAT. SUN. MON.
TUE. WED. THUR. FRI.
REMARKS: DO = DAY OFF
1st Shift Standby
The City of Rhinelander provides municipal services to its
citizens including the operation of
a Waste Treatment Water Plant. The Grievant, Jeremy Walker, was hired to the permanent
of Waste Treatment Plant Operator I and started working for the City on May 7, 2001.
no prior employment experience with the City. Walker replaced an employee named Marv,
There are seven employees, six (6) operators and one (1) lab technician, who work in
Waste Water Treatment Plant. The primary responsibilities of Waste Treatment Plant
to monitor the wells and the water supply for city residents. The City assigns four (4)
the first shift which begins at 7 a.m. and ends at 3 p.m. and two (2) operators to the second
which begins at 3 p.m. and ends at 7 p.m. The lab technician works the first shift. The
Union have bargained and agreed upon a six week shift rotation schedule that incorporates
assignment to first shift, second shift, first shift plus standby and days off.
The master schedules for April 28-May 11, 2001, and May 12-May 25, 2001, were
during December, 2000. Each work week on the schedule begins on Saturday and ends on
Marv was off for all weekends included in the above identified schedules. The master
showed that Marv was scheduled to work the first shift April 30-May 4, second shift May
shift May 14-18 and second shift May 21-25, 2001.
Although Walker was hired to replace Marv, he did not work the same schedule as
been projected to work. While Marv had been scheduled for the second shift the weeks of
and May 21st, Walker worked the first shift, 7 a.m. to 3 p.m., for all
Monday through Friday work
weeks from May 7, 2001, through May 25, 2001. Walker received straight time for all
during this time period. Walker did not work any weekend shifts. Walker was put into the
Water Operator shift rotation on May 28, 2001, when he worked the first shift plus standby
The pending grievance was filed by Union representative Dennis O'Brien on June 5,
It challenged the assignment of Walker to a schedule different than that of Marv, stating
required to work out of his regularly scheduled shift. He was not paid the proper overtime
pay on two one week periods." The grievance was denied by Zapota on June 6, 2001,
grounds that Jeremy Walker is not covered by the contract." Any new employee is on
the first six months of employment and is not considered a "regular employee who would be
by the contract."
Zapota testified that Walker was assigned to work with Ed Underwood, Waste
Plant Operator to "learn what to do" and to learn what "level of performance" was expected.
testified that Walker worked with Underwood his "entire first week of employment, some of
second week and a portion of the third week." Underwood was assigned first shift May
first shift plus standby for May 12-18, 2001, and second shift May 21-25, 2001. Walker
with other operators during these three weeks.
Deborah Breivogel, City Clerk/Treasurer since 1971, is responsible for payroll and
calculations for the City. Breivogel testified that "newly hired employees, permanent
sick leave "immediately upon employment." 1/ She further testified that this is the same for
1/ Article 9, Section A, SICK LEAVE
provides the benefit to "all regular and part-time employees."
"Permanent position" is the title used in the labor agreement when defining a regular
employee. Thus, it is
reasonable to conclude that the Clerk was describing a regular employee when using the term
Walker did not appear or testify at hearing. Evidence was not offered at hearing as
Walker is currently employed by the City nor whether he satisfactorily completed the
POSITIONS OF THE PARTIES
The Union asserts that regular employees on probation are entitled to coverage under
collective bargaining agreement and therefore the Grievant is entitled to receive time and
for the weeks of May 7-11, 2001, and May 21-25, 2001. The Union argues that the
language of the
labor agreement and the City's provision of other benefits of the agreement to probationary
employees support the Union's position that regular employees on probation are covered by
contract. The Union first notes that the contract clauses that address holidays and health
grant these benefits to new hires after 30 days of employment. The Union further argues
the City provides new employees with the bargained for benefits of overtime, call time,
time, stand-by pay, funeral leave, Section 125 Plan participation, jury duty, clothing
sick leave, then the City has recognized that the contract applies to newly hired employees
not completed probation.
The Union next points out that if the City's definition of "regular employees" is
the Arbitrator, then part-time regular employees on probation enjoy greater rights
and benefits under the contract than full-time regular employees because part-time
pursuant to Article 3 are not obligated to fulfill a probationary period and they thus would
all rights and benefits of the labor agreement from their date of hire.
The Union advocates application of the principle of avoidance of forfeiture in this
The Union argues that the City's interpretation would result in a probationary employee's
being reduced and thus Walker's benefits would be reduced should the Arbitrator find in the
Finally, the Union asserts in response to the City's management rights argument that
parties have adopted a normal schedule for Waste Treatment Operators (see Addendum II of
labor agreement) and as a result, the City was obligated to follow the repeating schedule and
that Walker was entitled to time and one-half for the work he performed outside of his
For all of the above reasons, the Union argues that Walker is entitled to all rights and
of the labor agreement and compensation as stated in the stipulated remedy.
The City asserts that the Grievant is a probationary employee and as such, is not
any rights or benefits of the collective bargaining agreement. The City first looks to the
"regular" employee and notes that a regular employee is one who has completed probation.
next notes that the probationary period is six (6) months at which time the employee is
entitled to "all
rights and privileges granted under this Agreement, computed from the date of employment."
City concludes that since the Grievant was a probationary employee and therefore not a
employee, he was not entitled to the rights afforded under the contract. The City cites Kiel
Dept. Employees, Case 43, No. 48539, MA-7648 (Nielsen, 11/29/93) in support of
The City next argues that the Management Rights clause of the contract provides it
to direct its workforce and that it exercised this right and chose to not assign Walker to a
City argues that the time and one-half benefit is for employees whose shift has been changed
Walker was not assigned a shift, it is not possible for him to be entitled to monies for a
Finally, the City argues that Walker did not have the grievance procedure available to
a recourse. The City cites the Recognition clause and notes that the probationary employees
referred to as entities represented by the Union. The City argues that the case should be
because Walker was a probationary employee who did not have the benefit of the grievance
procedure available to him.
For all of the above reasons, the City asserts that the grievance be denied.
This grievance arises from the City's assertion that Jeremy Walker was not covered
collective bargaining agreement until he attained "regular" employee status rather than
employee status and hence was not afforded the rights and benefits of the agreement
and one-half for hours worked as a result of a change in schedule. In contrast, the Union
Walker was a regular employee, though on probation, represented by the Union, and entitled
benefits of the labor agreement.
The parties have stipulated that the issue in this case is not whether the City had the
assign Walker to first shift rather than second shift during his orientation period. Rather, the
have framed the issue in terms of whether the collective bargaining agreement, as a whole,
to a probationary employee, and specifically, whether such an employee is, therefore,
entitled to the
time and one-half pay provided in Article 7 for working outside the normal schedule.
As a threshold matter, the City argues that, irrespective of probationary status,
Walker is not
entitled to coverage afforded by the labor agreement because he was not a member of Union
2001. Article 2 extends recognition to the Union as the exclusive bargaining representative
employees in various departments "who are Union members." While this provision is
worded, it is clear from other portions of the agreement, and from the statute, that the parties
not have intended that representation in the bargaining unit be literally construed thereby
to only those employees who become Union members. Section A includes an express
the City and the Union of employee rights under Section 111, 70, Wis. Stats. Among those
is the right to refrain from joining a labor organization. The City's argument would require
of both this provision and the underlying statute. Further, Section C of this Article expressly
for Fair Share payments by non-member employees. Neither section of Article 5 can be
consistent with a reading of Article 2 that limits its provisions to employees who exercise
to join the Union.
It is axiomatic that an interpretation that renders the contract legal and enforceable
favored over one that renders it illegal. Elkouri and Elkouri, How
Arbitration Works, 5th Edition, p.
485 (1997). In the same vein, an interpretation that makes all provisions effective is favored
that gives meaning to one at the cost of rendering other provisions ineffective or
meaningless. Id. at
493. For these reasons, I find that Walker's membership in the Union, or lack thereof, is a
2/ The City asserts that City of Kiel (Police
Dept), Case 43, No. 48539, MA-7648 (Nielsen, 11/29/93) in
support of its position that employees who have not completed their probationary period are
not entitled to the rights
of the labor agreement. This Award is inapposite. Arbitrator Nielsen did not conclude in
City of Kiel that
probationary employees are not entitled to the contractual rights of a labor agreement.
Rather, Arbitrator Nielsen
determined that the discharged police officer grievant was a probationary employee and was
therefore not entitled
to grieve his termination because the City had the express contractual right to terminate a
without any arbitral review of the decision.
Articles 2, 3, 6 and 9
The parties' dispute arises out of the meaning of their labor agreement as it relates to
employees on probation. Contract interpretation is only appropriate when the clear meaning
contract cannot be ascertained. Elkouri at 470. Language is clear when it is
susceptible to one
convincing interpretation. Id. Language may be deemed ambiguous when
plausible arguments can
be made for differing interpretations. Id. The City
concludes that Article 2, read in conjunction with
Articles 3 and 6, is unambiguous; Walker has not completed probation and is therefore not a
employee. The Union interprets Article 2 in the content of the entire collective bargaining
finding it to be "ambiguous, incomplete" and "subject to several different interpretations at
definitions of employees."
Article 2 recognizes the Union as the exclusive bargaining representative of "regular,
and seasonal" employees. The provision excludes "Department Heads, supervisory and
clerical personnel" from inclusion in the unit. "Probationary employee" is neither
nor excluded from the recognition clause itself. However, Article 3, Section A,
defines a "regular"
employee as "one who has successfully completed his or her probationary period in a
position with full annual employment." On its face, this would suggest that employees on
are not "regular" employees, and are not included in the bargaining unit. A closer look at
provisions of the labor agreement negate this seemingly clear conclusion since the parties
obviously bargained over the rights and benefits of employees during their first six months of
employment and have, in several instances, used the term "regular" employee to describe
Article 9, Section C, provides "regular" employees with paid holidays after 30 days
employment. Section E grants regular employees insurance benefits after 30 days of
These sections provide a regular employee on his 31st day of employment
with the contractual benefits
of holiday pay and insurance which is inconsistent with Article 2 which denies all rights and
to new employees until after they have completed the probationary period. Thus, the true
the parties was not to tie rights and benefits to the attainment of "regular" status as defined
3 but rather is manifested in the language the parties drafted as it relates to probationary
As is widely cited, "the primary rule in construing a written instrument is to
alone from a single word or phrase, but from the instrument as a whole, the true intent of
and to interpret the meaning of a questioned work, or part, with regard to the connection in
it is used, the subject matter and its relation to all other parts or provisions. Riley Stoker
7 LA 764, 767 (Platt, 1947). The question then is whether other portions of the labor
provide sufficient guidance in determining whether regular employees on probation are
the terms of the agreement.
Article 6, Section B, PROBATION, states that "[n]ew employees, . . . without
prior . . .
service to the City, shall serve a six-month probationary period" and further, probationary
"upon satisfactory completion of the probationary period, . . . shall have all rights and
granted under this Agreement, computed from the date of employment." This language
be clear; a full-time permanent probationary employee does not receive the rights and
benefits of the
labor agreement until he/she has completed the six-month probationary period. Yet again, a
look at other provisions of the labor agreement indicate that the parties have bargained over
and benefits of probationary employees in full-time permanent positions.
As previously discussed in this Award, full-time permanent regular employees on
receive paid holidays and health insurance on their 31st day of employment.
Article 6, Section B, sentence three, states that a probationary employee "may be
for cause without recourse." Recourse in this context includes the ability of the probationary
employee to utilize the grievance procedure of Article 8. Sentence three is followed by the
cited above that denies probationary employees all rights and privileges until the completion
probation. It is a well-accepted interpretative canon that the expression of one thing is to the
exclusion of another. Theodore St. Antoine, The Common Law of the
Workplace, p. 70 (1999). If
the parties did not intend for probationary employees to be covered by the labor agreement,
not have a reason to articulate that a probationary employee does not have the benefit of
Article 11, Section E, states that the City will pay the Meter Reader a one hundred
clothing allowance annually. In addressing this obligation, the contract states "the Meter
have completed his probationary period to be eligible for the payment." If the parties had
included this exclusion, then the Meter Reader would have been entitled to the annual
allowance while on probation. By including the exclusion language, it supports the outcome
parties intended for new hires on probation to receive coverage and the privileges under the
of the labor agreement.
This Arbitrator does not have the authority to "alter in any way or add to the
the parties' agreement, but rather must attempt to harmonize the contradictory sections of the
labor agreement. It is within this context that I conclude that the parties intended to afford
employees on probation with the rights and benefits of the labor
agreement. I reach this conclusion by applying a "broadly observed principle of
interpretation, acknowledged in both courts of law and arbitration, [which] holds that specific
language prevails over general languge [sic]." Airco Carbon, 86 LA 6, 9 (Dworkin, 1986).
Recognition Clause, Definition of Employees clause and Probationary clause of the labor
are general clauses, contained in virtually all labor agreements whereas the Special Clothing,
Leave, Personnel Procedures and Health Insurance clauses are specific clauses which afford
benefits to regular employees of Local 1226. If I were to find that the City's interpretation
in addition to nullifying the specific provisions of the labor agreement, it would allow the
arbitrarily determine, irrespective of those contained in the labor agreement, the wages,
conditions of employment for a probationary employee up until the employee has completed
probationary period and this I am unwilling to do. I therefore conclude that the parties
provide regular employees on probation with the rights and benefits of the labor agreement.
The Union finds strength in its argument that the City's actions in granting Walker
benefits of the labor agreement support the conclusion that probationary employees are
all rights and benefits of the agreement. The testimony of the Department Head at hearing
that Walker worked consistent with Article 7, Section B; received pay differential as
Article 7, Section C; would have received call-in pay per Article 7, Section D; received
on July 4 pursuant to Article 7, Section E; would have had Article 9, Section B funeral time
to him; earned sick leave consistent with Article 9; special clothing per Article 11, Section
been ordered for him; and he was paid the same rate of pay as other Waste Treatment Plant
as shown on Addendum I which is the JOB CLASSIFICATION AND SALARY
SCHEDULE of the
labor agreement. I do not find the City's provision of these benefits to Walker is evidence
parties in drafting the labor agreement intended to recognize "probationary employees" nor
do I find
that the provision of benefits to Walker constitutes a practice of providing probationary
with benefits. Rather, I find that the evidence indicates that the City's position at hearing is
inconsistent with its actions.
The City asserted in its brief that the Management Rights Subcontracting
clause of the labor
agreement granted the City the right to direct its workforce, that Walker was not assigned a
evidenced by Joint Exhibit 3, the Wastewater Treatment Plant Work Schedule which did not
shift assigned to Walker's name and as a result, he was not working outside of his normal
therefore entitled to time-and-one-half pay. Regardless of the merits of this argument, this
is not at liberty to address this issue because it is not the issue the parties stipulated to at
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
1. Yes, Articles 2, 3, 5, 6 and 7 and the labor agreement as a whole, except for
9, Sections C and E, as it relates to the 30-day eligibility periods, and Article 11, Section E,
relates to the Meter Reader clothing allowance, apply to full-time regular employee Jeremy
while on probation.
2. As the parties stipulated, the remedy shall be payment by the City of time and
half (1 ½) pay
for the weeks of May 7-11, 2001 and May 21-25, 2001, to Jeremy Walker, less any monies
received for these time periods.
Dated at Wausau, Wisconsin, this 22nd day of May, 2002.
Lauri A. Millot, Arbitrator