BEFORE THE ARBITRATOR
CALUMET COUNTY (HIGHWAY
AFSCME, LOCAL 1362, AFL-CIO
(Victor Brault - Layoff Grievance)
Ms. Melody Buchinger, Corporation Counsel, 206 Court Street,
Chilton, Wisconsin 53014,
appearing on behalf of Calumet County.
Ms. Helen Isferding, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1207 Main
Avenue, Sheboygan, Wisconsin 53083, appearing on behalf of the Union.
Pursuant to a joint request for the appointment of a staff arbitrator, the undersigned,
Morrison, was designated by the WERC as arbitrator to hear and to decide the instant
between the Union and the County in accordance with the grievance and arbitration
contained in the parties' labor agreement. A hearing was held before the undersigned on
30, 2001. The hearing was not transcribed. Post hearing briefs and reply briefs were
March 5, 2002, marking the close of the hearing. Based upon the evidence and the
arguments of the
parties, the undersigned makes and issues the following Award.
The parties were unable to agree on a statement of the issues and have left it to the
Arbitrator to frame the issues to be decided.
The County would frame the issues as follows:
Was the County required to expand its staffing levels by
another position upon the
reinstatement of Christopher Fritsch?
If so, what amount of compensation will
make the Grievant whole?
The Union would frame the issue as follows:
Did the Employer violate the contract when it lay-off [sic]
Victor Brault on July, 2001? [sic]
If so, what is the appropriate remedy?
The Arbitrator states the issue as follows:
Did the Employer violate the collective bargaining agreement
when it laid off Victor Brault
on July 20, 2001, and failed to offer him the opportunity to fill an available position in the
Department? If so, what is the appropriate remedy?
ARTICLE IV SENIORITY
4.01 Application In General
A. Seniority shall mean the
length of service with the County from an employee's last date
B. Employees shall lose their seniority
only for the following reasons:
Retirement, resignation, or
not reversed through the Grievance Procedure.
A. Whenever it becomes necessary to layoff employees
due to shortage of work or lack of funds,
employees shall be laid off in inverse order to their length of service on either the Highway
Department seniority list or the Parks Department seniority list, providing the remaining
employees in the affected department (Parks or Highway) are qualified to perform the
Employer's work in the Department (Parks or Highway) where the layoff occurs. Whenever
so laid off, employees shall possess reemployment rights as hereinafter defined.
In the event of a layoff, employees to be laid off may
bump laterally within a classification or to a
lower classification for which they are qualified providing it is still within the affected
department (Parks or Highway).
No regular full-time employee will
be laid off as long as a probationary, part-time, temporary, or
seasonal employee is still working in either the Parks or Highway department, providing the
regular full-time employee is qualified to perform the available work.
Whenever it becomes necessary to
employ additional workers, either in vacancies or in new positions
subject to the provisions of this Agreement, former employees who were laid off within two
(2) years prior thereto, shall be entitled to be re-employed in such vacancies or new positions
in preference to all other persons, provided, however, that the employee(s) to be returned to
work is qualified to perform the available work. Employees who voluntarily lay off shall be
deemed to have lost all seniority rights. On rehire, laid-off employees will be recalled by
seniority within the department (Parks or Highway) from which they were laid off, provided
the full-time employee is qualified to perform the available work. If no one is laid off or if
one is qualified to perform the available work, then the employer shall recall any laid off
employees in the remaining department (Parks or Highway) qualified to perform the available
work before hiring from outside the bargaining unit.
. . .
ARTICLE V PROBATIONARY PERIOD AND
. . .
Summer Help Seasonal summer help
employed from June 1st to September 1st but
can be extended for thirty (30) day periods by mutual agreement between the Employer and
ARTICLE VI GRIEVANCE
. . .
arbitrator shall not have the power to add to, subtract from, or alter the Agreement.
. . .
ARTICLE VII MANAGEMENT
Unless otherwise herein provided, the management of the work and the direction
working forces, including the right to hire, promote, transfer, demote or suspend, or
otherwise discharge for proper cause, and the right to relieve employees from duty because
of lack of work or other legitimate reason is vested exclusively in the Employer. If any
taken by the Employer is proven not to be justified, the employee shall receive all wages and
benefits due him for such period of time involved in the matter.
. . .
The facts giving rise to this grievance are not in dispute. The County hired the
work in the Highway Department as a truck driver on March 27, 2000. In June of 2001, the
undersigned issued an award which caused the Employer to reinstate a former employee,
Fritsch. This reinstatement caused the County to demote the employee who had stepped into
Fritsch's mechanic position to the position of truck driver which, in turn, caused the
removal from the truck driver position. More importantly, Fritsch's reinstatement increased
staffing level of the department beyond its budgeted level by one employee the
On July 17, 2001, the Salary and Personnel Committee met to consider expanding its
level. The Committee decided against the expansion and to lay off the Grievant. On the
day, July 18, 2001, the Grievant was placed on notice of his lay-off status to become
effective at the
end of his workday on July 20, 2001. This grievance followed.
POSITIONS OF THE PARTIES
The Union first argues that the Grievant was laid off because the Union refused to
the addition of a "General Worker" classification for him. The Union says that under the
the contract, the layoff must be due to "lack of work" or "lack of money" and neither is
cited as the
reason for the layoff in the notice of layoff letter received by the Grievant. The Union
County of threatening the Union with the Grievant's layoff if it failed to accept the "General
classification and points to the July 18, 2001 letter from Human Resource Director Patrick
(Joint Exhibit 8) as evidence thereof.
The Union next argues that the Grievant should not have been laid off because "there
probationary, part-time, temporary of seasonal employees still working in the parks
support of this argument, the Union relies upon the contractual language found in Article IV,
4.02 C, set forth above. The Union maintains that the Grievant was qualified to perform the
work being done by the part-time, temporary or seasonal employees in the Parks Department
consequently should not have been laid off. Specifically, it says that the Grievant "could
The Union urges the Arbitrator not to separate the Parks and Highway Departments
interpreting the contract language under Section 4.02 C, of the contract. It says that the
regardless of the fact that he worked for the Highway Department, should be able to move
Parks Department part-time, seasonal or temporary job in lieu of layoff.
Finally, the Union argues that the prior grievance involving David Dill should have
on this grievance and that the Arbitrator should not rely upon that settlement as determinative
of the issues in this case.
The County argues that the layoff of the Grievant was justified in three respects.
points to Article VII, Section 7.01 (Management Rights Reserved), set forth above, and takes
position that the layoff was done for "other legitimate reasons" as set forth in that Article. It
that because the contract fails to define the term "other legitimate reasons" this failure makes
ambiguous. Being ambiguous, it reasons, it becomes the Arbitrator's task to ascertain the
meaning of the parties when they negotiated the language. To do so, the Arbitrator must
look to past
grievances and their terms of settlement. The County suggests that the David Dill
contained facts "identical" to those found here, would allow the Arbitrator to determine the
of the phrase "other legitimate reasons" with absolute certainty. Second, the County says the
was justified due to "lack of funds" which reason is set forth in Article IV, Section 4.02 A
above). Because the reinstatement of Christopher Fritsch caused the Highway Department
level to be exceeded by one, says the County, and because there were no budgeted funds to
this position, it was justified in laying off the Grievant. Third, the County justifies the layoff
the asserted fact of "lack of work," also found in Article IV, Section 4.02 A. It argues that
years it has reduced the staff by roughly 50% and that it no longer does the same type of
work it had
done in the past. For example, it no longer builds roads; it does not crush its own gravel; it
own a gravel pit or an asphalt plant and that these jobs are all bid out on contract to private
companies now. The County asserts that but for the need to keep employees for the winter
when more employees are needed for snow removal, the summer staffing levels would be
than they are now.
Regarding staffing, the County asserts that the right to manage the work and
staffing levels is a management right clearly reserved to the County under Article VII,
(see above). It argues that the Arbitrator, by virtue of Article VI, Section 6.06 (above), may
increase that staffing level.
The County further argues that the Grievant does not have a right to "bump" from
Highway Department to the Parks Department. The County maintains that that language in
4.02 C, refers to "probationary, part-time, temporary, or seasonal" employees in the
which he was laid off, i.e. the Highway Department, and because these positions were
located in the
Parks Department, and because the departments "are completely separate" then Section 4.02
should have no application to this matter. Even if it were to apply to the facts here, argues
County, the available positions at the Parks Department were non-benefited and the most the
Grievant could have earned would have been $9.02 per hour as a Ranger/Maintenance
Seasonal. The County seems to suggest that the Grievant would not have accepted such
if offered. In any event, says the County, he never asked for one of those jobs nor did the
his behalf. The Union's only request was that the Grievant be restored to his prior position
Highway Department at the same level of pay and at the same level of benefits. The County
that if the probationary, part-time, temporary or seasonal employees had been employed by
Highway Department at the time of the Grievant's layoff, they would have been laid off
Finally, the County points to the testimony of Parks Superintendent Frank
testified that the Union Representative inquired about placing David Dill at the Parks
lieu of his layoff from the Highway Department. He testified that the Union declined to do
so on the
grounds that the Parks Department did not pay enough. It maintains that if the Grievant here
placed in the employ of the Parks Department in lieu of his layoff he would have only been
earn $360.80 per week for the four remaining weeks of the part-time Ranger/Maintenance
Seasonal position. Since the Grievant collected $312.92 per week in Unemployment
during that period of time the County argues that the most it would owe him would be the
between the Unemployment Compensation and the salary of the Ranger/Maintenance Worker
Seasonal, or $47.88 per week for four weeks for a total of $191.52.
The threshold question to be answered here is whether the County had sufficient
to lay off the Grievant. There is no question that the reinstatement of Christopher Fritsch
the staffing level of the Highway Department beyond its limit by one employee. There is no
that the Grievant, as the least senior employee in the Department, became a potential subject
due to that increase in staffing level. It is at this point that the parties split company. The
surrounds the meaning of Article IV,
Section 4.02 C. The Union says the County could not lay him off because of the
in that article which reads as follows:
No regular full-time employee will be laid
off as long as a probationary, part-time, temporary,
or seasonal employee is still working in either the Parks or Highway department, providing
regular full-time employee is qualified to perform the available work.
The Union's position is simple: if either department employs people in the categories
in Section 4.02 C, then the County is prohibited from laying off any full-time employees in
department. The Union does not suggest that the employee to be laid off should be given the
to fill the probationary, part-time, temporary, or seasonal positions. It only argues that he or
not be laid off. The Union does not give the Arbitrator any guidance as to what it would
County do with that employee other than to suggest that it increase the staffing level to
him/her. The Arbitrator is not empowered to accommodate that request.
The County, on the other hand, says that Section 4.02 C should be read in
Sections 4.02 A and B, both of which clearly provide that the two departments are to be
separately for the purposes of layoffs. Each department has a separate seniority list for that
which is created by the language of Section 4.02 A and the language of Section 4.02
B, prevents an
employee of one department from "bumping" into the other department in the event of
according to the County, Section 4.02 C, must also be presumed to incorporate the
separation of the
departments concept so as to be interpreted to mean that an employee of one department may
laid off if it employed the categories of employees mentioned therein but could be laid off if
department employed them. In other words, the existence of probationary, part-time,
seasonal employees in one department would not prevent the layoff of an employee in the
The primary rule in construing a written instrument is to determine, not alone from a
word or phrase, but from the instrument as a whole, the true intent of the parties, and to
meaning of a questioned word, or part, with regard to the connection in which it is used, the
matter and its relation to all other parts or provisions, Riley Stoker Corp., 7 LA 764, 767
1947). To the greatest extent possible, the Arbitrator must ascertain and give effect to the
mutual intent. That intent is expressed in the contractual language, and the disputed portions
be read in light of the entire agreement. Hemlock Pub. Sch., 83 LA 474, 477 (Dobry,
Reading Sections A and B together, it is clear to the undersigned that the parties intended to
the two departments work forces on the grounds of inter-departmental seniority and that the
intended that, in the event of layoffs, the departments would remain separate and that
one would not need to be concerned about being bumped by employees laid off from the
is clear because the parties, in drafting the document, went to great pains to specifically refer
separation in the language they used. In Section 4.02 A, the parties refer to " . .
either the Highway
Department seniority list or the Parks Department seniority list, providing the remaining
in the affected department (Parks or Highway) are qualified
to perform the Employer's work in the
Department (Parks or Highway) where the layoff occurs . . ." (Emphasis added.)
Section 4.02 B, the parties take pains to set forth their intention that the departments are
the purposes of layoffs by saying "In the event of layoff, employees to be laid off may bump
within a classification or to a lower classification for which they are qualified
providing it is still
within the affected department (Parks or Highway)." (Emphasis added.) The
in contract construction is that the parties do not carefully write into a solemnly negotiated
words intended to have no effect. See John Deere Tractor Co., 5 LA 631, 632 (Updegraff,
Turning now to the language of Section 4.02 C, I find no such care in the wording of
paragraph such as I found in A and B. Clearly then, the parties did not intend that the
between the two departments, which they so carefully crafted in the language of the two
paragraphs, be incorporated into this paragraph. If that had been their intent, they could
indicated so by using the same or similar language. They did not do so and they thus
their intent that this paragraph encompass both departments. And this makes sense given the
of Article IV, Section 4.02: Layoff. Section 4.02 C, is a clear expression by the parties that
a full time
employee in the Highway or the Parks Department will be given preference over all
part-time, temporary, or seasonal employees regardless of which department employs them.
Union argued, " . . . no bargaining unit wants employees laid off when probationary or
unit employees are working anyplace." By adding the language ". . . providing the regular
employee is qualified to perform the available work" to Section 4.02 C, the parties expressed
intent that the employee to be laid off may "bump" the probationary, part-time, temporary,
seasonal employee in either department provided he or she is qualified to perform the
This is entirely consistent with the Union's desire and with the language in Section 4.02 B,
establishes the fact that an employee from one department may not bump an employee from
Under Section 4.02 C, the regular full-time employee subject to layoff may only
probationary, part-time, temporary, or seasonal employee, not a regular full-time employee,
insuring that bargaining unit employees will not be laid off as long as "probationary or
unit employees are working anyplace."
By reason of the foregoing, I embrace the Union's argument that Section 4.02 C,
the County from laying off regular full time employees when probationary, part-time,
seasonal employees are employed. I embrace this argument subject to my rejection of the
argument that these employees are department specific and subject to my rejection of the
argument that the employee facing layoff may not bump probationary, part-time, temporary,
seasonal employees employed by the other department. The right of a regular full-time
faced with layoff to bump a probationary, part-time, temporary, or seasonal employee,
employed by the Highway or the Parks Department,
is a right afforded by the contract under Article IV, Section 4.02 C, and, the
arguments of the County
to the contrary notwithstanding, need not be specifically requested by the employee subject to
but must be offered to him/her at the time.
I now consider the question whether the County had a legitimate reason to lay the
off under these facts. Article VII MANAGEMENT RIGHTS RESERVED provides
management may "relieve employees from duty because of lack of work or other legitimate
The record is replete with evidence supporting the County's claim of lack of work. The
testimony of John Keuler, the Calumet County Administrator since June, 2000, shows that
reduced the staffing levels over the past years due to the fact that it no longer does its own
crushing or black topping; that it no longer does road construction; and that it has no gravel
operations or runs an asphalt plant. These operations are contracted out to private industry.
County introduced its Exhibit 4, a group exhibit consisting of ten pages which was accepted
objection and which documents the jobs the County Highway Department employees do for
governmental entities and for private concerns to keep them busy during the summer
testified this was necessary in order for the County to maintain a sufficient full time crew to
snow removal operations over the winter months. The fact that the Grievant was laid off
lack of work is supported by the evidence. Hence, it is not necessary to address the
questions as to whether the County's assertion that he was laid off due to "lack of funds" or
"other legitimate" reasons is true. Suffice it to say that the record would also support the
the basis of "lack of funds." The County was justified in the lay off on the basis of lack of
but failed to offer the Grievant an available position in the Parks Department consistent with
A brief word must be said regarding the Union's contention that the Grievant was
because the Union refused to agree to the "General Worker" classification. It argues that the
threatened the Union with the layoff if the Union failed to come to terms with it on the new
classification, and that the layoff was punitive because it did not. The undersigned listened
carefully to all of the testimony on this point and has read and re-read Joint Exhibit 8, the
2001 letter touted by the Union as proof positive of the County's alleged subversion. I do
with the Union. The County has every right to pursue such a classification and the Union
right to oppose it. The fact that the County suggested to the Union that the new
be a way around the layoff of the Grievant and suggested that it would undertake to jump
all of the administrative hoops to accomplish the task does not equate to subversive behavior
it render the layoff punitive in nature. As shown above, the County had sufficient reason to
this employee and an attempt to work out a solution to avoid it cannot be held against the
The remaining question, then, is what is the appropriate remedy? In this regard, I
County's suggestion as set forth in the last paragraph of its position statement and the
amounts set forth therein.
In light of the above, it is my
That the County was justified in laying off the Grievant on July 20, 2001, but that it
the collective bargaining agreement when it failed to offer him the opportunity to fill an
position in the Parks Department. To rectify this contract violation, the County shall pay the
the sum of $191.52 which represents the maximum amount the Grievant would have made if
filled the best available position in the Parks Department less the amount he received in
Unemployment Compensation during the same period of time.
Dated at Wausau, Wisconsin, this 24th day of May, 2002.
Steve Morrison, Arbitrator