BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ASSOCIATION OF MENTAL HEALTH
HUMAN SERVICE PROFESSIONALS
Mr. John S. Williamson, Jr., Attorney at Law, appearing on
behalf of the Association.
Mr. Eugene R. Dumas, Deputy Corporation Counsel, Rock
County, appearing on behalf of the County.
The Association and the County named above are parties to a 2000-2001 collective
agreement which provides for final and binding arbitration of certain disputes. The parties
requested that the Wisconsin Employment Relations Commission appoint the undersigned to
resolve a dispute regarding salary step increases. A hearing was held on April 3, 2002, in
Wisconsin, at which time the parties were given the opportunity to present their evidence and
arguments. The parties completed filing briefs by May 7, 2002.
The parties did not agree on the framing of the issue. The County frames the issue
Were the County's practices in establishing a date for
to move to the next step of
a pay grade to which they had been promoted or into which they had been placed at a point
the entry level, based on the date of such employee's promotion or entry into the pay grade,
violation of the collective bargaining agreement? If so, what is the appropriate remedy?
The Association frames the issue as this:
Did the County violate the collective bargaining agreement
it changed the anniversary
date from the date of hire to the date the employee was: (a) promoted form Range II to
(b) promoted from a non-professional unit to a position in the AMHS unit; or (c) voluntarily
from a supervisory position to an AMHS bargaining unit position. If so, what is the
Either party's framing of the issue is acceptable. The Arbitrator slightly prefers the
Association's statement of the issue.
The Association represents employees who were once represented by three separate
The Association and the County reached the first collective bargaining agreement for the
sometime in 1998, although it was retroactive to 1996. The parties also agreed on the
contract a few months later in 1998, which covered 1998 and 1998. The parties' current
is for 2000-2001. The contract contains both ranges for various positions in the bargaining
well as steps, from start through 20 years. The parties agree that the relevant language
wage progression procedures has not been changed since the first agreement. (See
for more on the language.)
On August 8, 2001, the Association brought a class action grievance against the
because some employees' anniversary dates were changed when those employees changed
As a consequence of the County's action, those employees did not receive step increases on
actual anniversary dates or dates of hire. Instead, they received step increases on
from the dates of promotion or change in position. There are three groups of employees
affected: (1) employees moving from a Bachelor's level to a Master's level positions; (2)
coming from another bargaining unit into the Association's bargaining unit; and (3)
left a supervisory position to take a bargaining unit position.
Association President Linda Graf reviewed seniority dates and step increase dates for
employees and identified employees whose step increase dates differed from their seniority
ruling out employees whose dates differed because their received certification or they had
leave of absence.
Graf's records show that Judy Schultz, John Dalee, Linda Sime, Tracy Mayer, Julie
Rebecca Westrick have moved from a Bachelor's position to a Master's position. They
seniority date for purposes of step increases. Graf identified the employees who came from
nonprofessional bargaining unit and moved into the Association's
bargaining unit as Judy Schultz, John Dalee and Kevin Leifker. They also retained
their seniority date
for purposes of step increases. All of them moved into their positions or units before the
collective bargaining agreement. Employees who left supervisory positions to take
positions were Terrence Haines and Ronald Metz, and they also retained their seniority date
purposes of step increases.
Graf then traced the employees' history for those whose seniority date had been
Five employees moved from a Bachelor's position to a Master's position and had their step
changed from their seniority date to the anniversary date of the promotion. They are Gina
Faith Mattison, Kerstin Emerson, Lori Frison, and Ryan Nedbalek. Seven employees who
another bargaining unit into the Association's unit had their step raise date changed from
seniority dates to the dates they moved into this bargaining unit. They are Val Bly, Teresa
Lea Gerue, Gabe Fieiras, Terry Murphy, Sherrick Anderson, and Tricia Stillen. Four
moved from supervisory positions to bargaining unit positions and their step raise dates
from their seniority date to the date of the change in position. They are Jim Weisner, Carl
Nichole Kumlien and Gary Jones.
Fieiras raised the issue of his step increase date with the previous Association
Bailey, who apparently told Fieiras that there was nothing that the Association could do
Bailey was not a negotiator in 1998 when the parties entered into the agreement that first
the wage progression language.
When Washburn moved from a Bachelor's position to a Master's position, she was
by Lori Pope, Lead Personnel Analyst for the County, that her future step increases would
yearly on her anniversary date of the promoted position. Washburn confirmed that in writing
Victor Long, Labor Relations Consultant for the County, was involved in negotiations
collective bargaining agreements. He recalled that the wage progression procedures in the
were not agreed to until 1998, even though it was retroactive to January 1, 1996. Long
employees who were promoted would receive their subsequent step increases based on the
their promotion rather than the date of their hire with the County, but he did not know
parties ever specifically discussed that.
John Moldenhauer was on the negotiating committee for the Association when the
negotiated the first agreement for the newly combined bargaining unit. He did not recall any
discussion applying the language of the wage progression procedures except for employees
from Range I to Range II.
Since 1998, the County has administered the step increases consistently with its
THE PARTIES' POSITIONS
The Association asserts that the unexpressed assumption of the County's chief
not based on the language governing progression from Range I to Range II, where the
the change in anniversary date specifically applies to such progression. There is not
reference to any
other movement or progression just as there is no reference to nay other movement being
The contract language regarding seniority in Sections 8.02 and 9.02 draws no
between employees who remain in the same position or same pay range and those who do
the parities carved out one exception to the seniority language for the automatic progress
I to Range II through certification. The County's extension of the limited exception to
movements violates the language of Sections 8.02 and 9.01. The County's practice cannot
clear and unambiguous contract language.
Although the County acted consistently with Long's assumption, and although Bailey
opinion to one member, there is no evidence that Bailey's opinion expressed the
agreement with the County's action. Even if such evidence existed, that incident would not
a practice. The County failed to show that the Association accepted or endorsed the practice.
The County asserts that the grievance should be denied because the County's
administering the relevant collective bargaining agreement have been consistent with the
the agreement. The issue before the Arbitrator is whether the County's practices in
date for employees to move to the next step of a pay grade to which they had been promoted
which they had been placed at a point above entry level, based on the date of their promotion
into the pay grade, violates the collective bargaining agreement. The answer is clearly no.
There is no evidence that the County acted contrary to the terms of the wage
procedures which intended to address specific instances of the general situations where an
would be placed in a new salary range scale and subsequent step increases would be out of
the normal pattern for employees having the same work responsibilities but varying levels of
experience. There is no evidence that the County acted without the knowledge and
the Association's leaders and members.
The County submits that the grievance should be denied because the present method
administering step increases has been ratified by the past practices of the parties and the
has waived its right to bring the matter before the Arbitrator. The record meets
the well-established arbitral standard for apply the actual practices of the parties to
contract provisions. The County's reliance on its understanding of the wage progression
was in good faith and the County acted openly. The County asks that even if the Arbitrator
its interpretation of the collective bargaining agreement, the remedy should not disregard the
limits provided for seeking redress for contractual violations.
In paying step increases, the County has used employees' true anniversary dates in
cases, based on their date of hire or seniority, and then used employees' dates of promotions
movement in other cases, apparently based on the language of the "Wage Progression
1. Progression from Range I to Range II for Case Managers and
Probation Officers will be
automatic upon the employee's State certification as a Social Worker. The effective date of
increase will be the pay period immediately following notification with documentation of
to management. The employee's wage rate will be increased to the step in Range II that
increase of at least three percent (3%) and the employee will be eligible for subsequent step
each anniversary date of the promotion thereafter.
2. For progression to Range III, employees
will be required to have the specified education for
the position which will allow them to compete for vacant positions when they are posted.
3. For Registered Nurses in Range IV,
newly hired nurses with no experience and possessing
a bachelor's Degree will be hired at the 2 year step of the range. Nurses with no experience
without a Bachelor's Degree will be hired at the start step.
4. Employees with relevant experience may
be hired above the minimum hire rate based upon
years of experience, but no employee will be hired above the 4 year step.
5. An employee who meets the educational
requirements for a Range III position may be placed
and paid in a Range II position.
It is the language of number one above that has generated this dispute. The wage
schedule calls for
ranges and steps. The steps are based on one's starting time, 6 months, 2 years, 3
years, 4 years, 5
years, 6 years, 7 years, 8 years, 9 years, 15 years and 20 years. It is understood and agreed
parties that if an employee starts in a particular range at the
starting rate, he or she will get the step increases upon his or her actual anniversary
date or time
employed by the County. The wage schedule is clear enough on its face. There is nothing
However, the parties carved out an exception in the language of the wage progression
procedures in number one for Case Managers and Probation Officers who get State
Social Workers. The procedure allows for an automatic progression from Range I to Range
further provides for subsequent step increases each anniversary date of the
This language is clearly a deviation from the wage schedule and intended to apply to those
There is nothing in the contract that allows for other
step increases to be effective upon date of
promotion rather than the anniversary date based on the date of hire.
Therefore, the County's practice of changing the true anniversary date for others who
come under number one of the wage progression procedures violates the collective bargaining
agreement. It violates both the seniority provisions of the contract as well as the wage
The seniority provision provides for seniority beginning with the original date of continuous
employment with the County, so employees coming from other bargaining units should have
time counted from the time of hire just as employees who had always been in this bargaining
The County may not unilaterally determine that step increases are based on some factor other
years of service where the parties have agreed to step increases based on years of service.
Any practice that conflicts with the collective bargaining agreement cannot stand, as
written agreement takes precedence over the practice. The County's practice may have been
consistent since 1998 when the parties reached their first agreement, but it was inconsistent
As to the remedy, this grievance is a continuing violation of the contract. The failure
appropriate wage rates is a continuing or recurring grievance or violation, as contract
remain unremedied each pay period. See Neville Chemical Co., 73 LA 405 (Richman,
Bethlehem Steel Co., 34 LA 896 (Seward, 1960). However, the remedy may be limited to
that the grievance was filed. Section 7.03 of the collective bargaining agreement states that
grievances shall be filed within 14 days of the occurrence leading to the grievance or within
of such time as the aggrieved should reasonably have been expected to be aware of the
Many of those employees affected were aware that their anniversary date had been changed
purposes of step increases from their date of hire to their dates of promotion. For example,
County shows that Washburn should have known of this by September 23, 1998. The
did not bring a grievance until August 8, 2001. Therefore, any back pay due to those
employees should run only from August 8, 2001, until the present. All employees whose
date was incorrectly changed should be placed on the correct step of the salary schedule and
reimbursed for lost wages between August 8, 2001, and the present.
The grievance is sustained.
The County is ordered to pay step increases in accordance with years of service
the wage schedule, except for Case Managers and Probation Officers who attained State
as Social Workers. Employees whose anniversary date was incorrectly changed shall be
the correct step of the wage schedule in accordance with their seniority and made whole for
wages between August 8, 2001, and the present. The Arbitrator will retain jurisdiction until
15, 2002, for the sole purpose of resolving any disputes over the scope and the application of
Dated at Elkhorn, Wisconsin, this 29th day of May, 2002.
Karen J. Mawhinney, Arbitrator