BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL 40, LOCAL 79, AFSCME,
(Failure to Post Vacancy Grievance)
Mr. Dennis O'Brien, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, for the
Mr. Carey L. Jackson, Labor Relations and Employee Services
Director, for the municipal
Wisconsin Council 40, Local 79, AFSCME, AFL-CIO and Oneida County are parties
collective bargaining agreement which provides for final and binding arbitration of disputes
thereunder. The union made a request, in which the county concurred 1/, for the Wisconsin
Employment Relations Commission to provide a randomly selected panel of
arbitrators to hear and decide a dispute concerning the interpretation and application of the
the agreement relating to the filling of vacancies. The parties jointly selected the
Levitan, to serve as the impartial arbitrator. Hearing in the matter was held in Rhinelander,
on February 28, 2002; it was not transcribed. The parties filled written arguments and
last of which was received on May 23, 2002.
1/ The County's original position of
non-concurrence is discussed below in the BACKGROUND section.
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 stipulated to the following statement of the issue:
"Did the county violate the contract Article 5 when it failed to
post an Equipment Operator II
position in April 1999 and instead posted a Highway Maintenance Worker?
If so, what is the remedy?"
Article 5 Promotions
Section A Opportunity for Advancement:
Opportunity for advancement to higher
classifications shall be provided as follows: In the event of a permanent vacancy, or the
a new job classification, the Highway Commissioner shall cause to be posted on the main
bulletin board and all outlying shop bulletin boards, a notice of such vacancy or new
notice shall be posted for a five (5) day period. At the end of that five day period, the notice
removed and the position shall be filled within five (5) days.
(1) Permanent vacancy defined: A
"permanent vacancy" means a vacancy created in any
salary range because of the death, retirement, or termination of employment of any
other vacancies are "temporary".
(2) The Commissioner shall have the
right, without the requirement of posting, to shift
employees into any lower or higher job classification or within any salary range where a
vacancy exists for the duration of the temporary vacancy.
. . .
Section D Job Assignments: Assignments
of employees to fill such job vacancies or new
positions shall be made according to seniority providing the employee considered can qualify
position to be filled. The secretary of Local #79 shall be notified of the employee chosen for
. . .
Section K Highway
Maintenance Worker to Equipment Operator I: Highway Maintenance
Workers shall be promoted to Equipment Operator I after three (3) consecutive years of
The effective date shall be the first day of the next pay period following the three (3) years
. . .
Article 12 Vested Rights of
Section A Management Rights: The right
employ, to promote, to transfer, to discipline
and discharge employees and to establish work rules is reserved by and vested exclusively in
Oneida County Board through its duly elected Highway Committee and duly appointed
Commissioner. The reasonableness of the exercise of the aforementioned vested rights shall
subject to the grievance procedure.
Section B Management
Property and Equipment: The management of the property and
equipment of the Oneida County Highway Department is reserved by and vested exclusively
Oneida County Board through its duly elected Highway Committee and duly appointed
Section C Management
Right Regarding Staffing Levels and Discipline: The Highway
Commissioner, through authority vested in him/her by the Highway Committee of the
shall have the right to determine how many employees there will be employed or retained
with the right to exercise full control and discipline in the proper conduct of the Highway
Section D Management
Right to Contract Any Work: The Highway Committee and
Highway Commissioner shall have the sole right to contract for any work it chooses. The
Committee and the Highway Commissioner shall have the sole right to direct its employees
perform any work wherever located or contracted for in its jurisdiction.
Section E Complying with State and Federal
Laws: The County shall have the right to take
whatever action is necessary to comply with State or Federal law.
Section F Right to
The County shall have the right to layoff employees from their
duties because of lack of work or for other legitimate reasons.
Section G Determination
Hours/Changes in Employment Detail: The Board and/or its
representatives shall have the exclusive right, subject only to the provisions of Article 17, to
determine the hours of employment and the length of the work week and to make changes in
detail of employment of the various employees from time to time as it deems necessary for
efficient operation of the Oneida County Highway Department. The Union and its members
to cooperate with the Board and/or its representatives in all respects to protect the safe and
operation of the Highway Department.
The above condition shall be subject only to the restrictions
imposed by the Agreement and the statutes of the State of Wisconsin.
Section I Right to
Grievance Procedure: Any employee who feels that he/she has been
wrongfully or unjustly treated according to the provisions of this Agreement may appeal
grievance procedure of this Agreement.
Article 13 Job Classification and
Rates of Pay
Section A Job Classifications: All
be classified by the job classification as
listed in Addendum 1 and shall not receive less in pay while working in a job classification
lower rate of pay. When required to work in a job classification with a higher rate of pay,
employee shall receive the higher rate of pay for that job classification.
. . .
Among its general government duties in north central Wisconsin, Oneida
a Highway Department under the direction and control of the Highway Commissioner in
agreement with AFSCME Local 79. As the workforce has dwindled
from about 80 to about 30 over the last 20 years or so, the parties have endured
a string of disputes
over vacancies, promotions and postings.
This grievance concerns the county's decision to eliminate an Equipment
Operator II (EO2)
position upon the retirement of the incumbent, and create in its stead a new entry-level
Maintenance (HMW) position.
Paid Grade 11 wages of $12.931 per hour (post probation) in 2000, in three
years a HMW
automatically progresses to Equipment Operator I, a Grade 12 position paid $13.714.
EO2, a Grade 13 position paid $14.280, is by seniority "providing the employee considered
qualify for the position to be filled."
The HMW position performs a variety of semi-skilled tasks in the
and repair of
roads and county highways, but on occasion may be assigned duties normally performed by
or EO2. The EO1 position performs skilled work of a varied nature involving the operation
or more types of motorized equipment in the maintenance and repair of roads and highways,
occasion may be assigned duties normally performed by an EO2. Article 13, Section A of the
agreement provides that employees who are assigned to perform work at a higher
their permanent assignment are paid the higher-classification wage rate for the time so
An EO2 performs skilled work of a varied nature involving the operation of
various types of
motorized heavy equipment, a position that requires a high degree of skill and a higher level
complexity of work than the EO1. There are certain pieces of equipment and certain levels of
responsibility which are considered core EO2 duties and which account for that position's
wage. This higher wage is also paid when these core EO2 duties are performed by an EO1
as they occasionally are. It also happens that an EO2 may perform duties at the EO1 or
while still, pursuant to the labor agreement, at the EO2 wage.
There is no dispute over the wages paid to any particular employee
work; the union acknowledges that all employees, of whatever classification, were paid EO2
for all EO2 core work they performed. Instead, the union grieves the elimination of the EO2
In 1997, the county employed seven EO2's who performed 5008.5 hours of
duties exclusive to that classification. This amount to 715.5 hours of EO2 work per full-time
the equivalent of each full-time EO2 working about 34 per-cent of their time on EO2 work.
record does not reflect the additional hours, if any, that HMW's and EO1s spent performing
being paid for EO2 work.
In 1998, the county employed eight EO2's who performed duties exclusive to
classification for 3661 hours. This amounts to 457.63 hours of EO2 work per full-time EO2,
equivalent of each full-time EO2 working about 22 per-cent of their time on EO2 work.
are no records regarding other employees performing these duties under an
In 1999, the county employed eight EO2's who performed 2709.03 hours of
duties exclusive to that classification. This amount to 338.63 hours of EO2 work per
the equivalent of each full-time EO2 working about 16 per-cent of their time on EO2
That was also the year that Dave Richardson retired, and the county adopted
Resolution #37-99 on April 20, as follows:
WHEREAS, an Equipment Operator II in the Highway
Department submitted a retirement notice
with an effective date of April 29, 1999, and
WHEREAS, the Highway
Commissioner and the Highway Committee reviewed the needs of the
department and determined that a full-time Equipment Operator II position was not necessary
those needs, and
WHEREAS, the Personnel Committee
did examine the current and future Highway Department
Staffing options and have determined that changes are necessary to take into account current
future economic conditions.
NOW THEREFORE BE IT RESOLVED, by the Oneida
County Board of Supervisors that
effective April 30, 1999 the following changes are hereby made to the Highway Department
1. The Equipment Operator II
being vacated on April 29, 1999 shall be
2. The position
of Highway Maintenance Worker located in the Highway Department
shall be created.
There is record evidence for 1999 on out-of-classification assignment and pay.
Richardson's retirement and the elimination of the EO2 position through the end of 1999,
Highway Maintenance Workers and Equipment Operator Ones were paid 583.25 hours for
2 work. This amounts to about 73 hours, or about six hours per month, per
employee. The total number of hours spent on EO2 duties was thus 3292, of
which 2709 (about
82%) were performed by EO2's.
In 2000, the county employed seven EO2's who performed 2440.75 hours of
performing duties exclusive to that classification. This amounts to about 350 hours of EO2
full-time EO2, the equivalent of each full-time EO2 working about 17 per-cent of their time
work. Also in 2000, 12 HMW/EO1s split 1242 hours about 104 hours, or a bit more
than a day per
month per employee. The total number of hours spent on EO2 duties was thus 3682,
of which 66%
were performed by EO2's.
In 2001, the county employed seven EO2's who performed 1761.25 hours of
performing duties exclusive to that classification. This amounts to about 250 hours of EO2
full-time EO2, the equivalent of each full-time EO2 working about 12 per-cent of their time
work. Also in 2001, 12 HMW/EO1s split 1115 hours about 93 hours, almost
precisely one day per
month. The total number of hours spent on EO2 duties was thus 2876, of which 61% were
Thus, the record shows that fewer total hours are spent on EO2 work than in
1997 and 1998,
but not in a consistent pattern. The record also shows a higher, and increasing, percentage of
work being performed by lower-ranked employees since the elimination of Richardson's EO2
In response to the county's elimination of the EO2 position and posting of a
position, the Union grieved on April 28, 1999. As remedy for this alleged violation of
Article 5 of the
labor agreement, the union sought to have the position posted as an EO2, and to make the
employees and the union whole. The Highway Commissioner, Robert H. Maass, denied the
on May 3, after which the union sought consideration by the Highway Committee. Following
committee's denial, the union sought review by the Personnel Committee, which denied the
on July 8.
On September 8, 1999, Wisconsin Council 40 Staff Representative David
informed county Personnel Director Carey Jackson that he sought arbitration of the instance
grievance. On September 14, Jackson wrote Campshure, inter alia, as
The County Board eliminated the Equipment Operator II
position discussed in grievance #8-99.
The County's position is the elimination of the position is not a grievable issue, therefore,
is not required by contract to Arbitrate this matter.
On October 8, Campshure reiterated the union's intention to arbitrate the
On October 13, Jackson reiterated the county's position that the matter was "not a grievable
as the County Board has eliminated the Equipment Operator II position in question."
On May 9, 2000, the union filed a complaint with the Wisconsin Employment
Commission, alleging that the county's refusal to arbitrate the instant grievance constituted a
prohibited practice within the meaning of sections 111.70(3)(a) 1 and 5, Wis. Stats. On
2001, the parties stipulated to the facts and thereafter filed briefs on August 20, 2001, at
the record was closed. On October 18, 2001, commission hearing examiner Stephen G.
Decision No. 30213-A, wherein he found that the county had committed the prohibited
claimed by the union. Examiner Bohrer ordered the county to take certain remedial actions,
participating in an arbitration hearing concerning the resolution of the instant grievance.
On November 2, 2001, Council 40 Staff Representative Mark DeLorme
submitted a Request
to Initiate Grievance Arbitration of the instant dispute, wherein he requested a random panel
commission arbitrators. Examiner Bohrer's decision became the commission's by operation
on November 13, 2001. On January 17, 2002, Council 40 Staff Representative Dennis
informed the commission that the parties had jointly selected the undersigned to serve as the
This is not the first grievance the Union has brought regarding a County
decision to forgo
posting a position the Union felt was vacant.
In 1986, Highway Commissioner Maass left an EO1 position vacant after the
promoted to Leadman. The Union grieved, citing Article V, sections 1 and 1A, seeking as
the posting of the "job vacancy created" by the promotion. In his response, the
the union steward that it was "management's position that we do not need an additional
at this time and therefore, according to Article XIII (3) management will not be making that
until it is determined by management an additional Operator I is needed." The Union did not
In 1987, Maass again left vacant an EO position (this time for an EO2) when
was promoted to Leadman. The Union again grieved, again citing Article 5, Section A, and
seeking to have the county "post the vacant Equipment #2 job." Again the county declined,
informing the Union president that the county was "not posting an Operator II position as the
feels we have enough people in that position to adequately fulfill our work load
Corporation Counsel Lawrence R. Heath, writing on behalf of the county's Personnel
later elaborated as follows:
. . .
. It is the determination of the Committee that Mr. Maass,
as Highway Commissioner, has the
authority under Article 14, Section C to determine how many employees will be employed or
and that the Highway Commissioner has the additional authority under that Section as well as
B to exercise full control and discipline in the proper conduct of the Highway Department
and the management of the property and equipment of the Department.
As a result, it is the determination of
the Committee that Mr. Maass has not only the authority
to determine how many employees will be employed but the number and types of different
which need to be filled in order to effectively operate the Highway Department. For those
the grievance is denied.
The Union ultimately agreed to "withdraw the grievance without
The union filed a spate of grievances in the spring and summer of 1995, after
eliminated a Shop Foreman and a Leadman position and created two non-represented
Shop Superintendent and Patrol Superintendent. Citing Article 5, Section A, the union sought
the Leadman and/or Foreman positions posted to "allow union members to bid by seniority
the vacancy." In a unified response to the two grievances, Jackson wrote Campshure that the
grievances did not constitute grievable issues because THERE ARE NO VACANT
POSITIONS TO BE POSTED (capitals in original)
The Union did not pursue these grievances any further.
A third related grievance filed that season, a follow-up to those two, did go to
Case 118, Dec. No. 53542, MA-9384 (8/96), Arbitrator Lee Crowley addressed a situation
which a junior employee worked as a Leadman for 103.75 hours over a three-month period,
county had abolished the union Leadman position in favor of an unrepresented supervisory
In finding that the county did not violate the collective bargaining agreement when it failed to
the Leadman position, Arbitrator Crowley reasoned as follows:
The crux of the parties' dispute here is whether the
assignment of Miller to perform duties in the
Leadman classification violated Articles 4 and 5 of the agreement by failing to post a
vacancy. Article 5, Section 1 defines a
"permanent" vacancy and states that all other vacancies are
"temporary." The language of this
section is not clear but is ambiguous. However, Article 15, Section A provides
that when an employe
is required to work in a job classification with a higher rate of pay, the employe receives the
rate. This language anticipates that the County will make temporary transfers of employes to
classifications, and vice versa, and addresses how employes will be paid but does not deal
or how employes will be transferred. Article 15 merely speaks to an employe required
to work in a
higher classification. It does not state that there has to be a vacant position or someone must
absent from a position as the term "position" is not used. The evidence indicates that Miller
assigned work in a higher classification in 1994 on June 2 and September 21
when it appears no one
was on vacation or sick. Also, in 1995, Miller was assigned work of a higher
May 16, July 20 and August 23 and 24, when Stern was not on
vacation. Freeman Bennett was
assigned Operator II work in 1994 and 1995, where it appears no position was
evidence establishes that the assignment of work of a higher classification does not create a
either temporary or permanent so the provisions of Article 5 are not applicable.
Article 5 is applicable
to vacancies or new positions that the County is going to fill on a permanent or temporary
However, the assignment of work for one day of a higher classification does not create a
the performance of work does not create a position, just a right to higher pay. This is logical
by the time the matter was posted or someone selected, the work would have been done
no further work being required, the position would evaporate. Furthermore, an employer is
required to create a new position year round or even for four months just because an
occasionally does work of a higher classification.
In other words, the mere fact that
Miller occasionally worked in a higher classification, i.e.,
performed duties of a higher classification, did not create a position or vacancy, either
temporary, that required the application of Article 5. There was no vacancy that
required posting or
assignment by seniority. Inasmuch as no posting was required, the County has not violated
4 or 5.
In January 1996, the union filed a grievance when the county did not post a
leadman at the landfill after the incumbent's retirement. In denying the grievance, Jackson
the union chief steward that the position was "no longer needed," and that the county board
be eliminating the position in question, which Jackson said "effectively eliminates" the
April 16, 1996, the county board adopted the following resolution:
WHEREAS, the Solid Waste operations have grown over
the years such that a separate Solid
Waste Department has been created and the supervisory functions have been relocated to the
Landfill thus providing direct supervision to the operation on a day to day basis, and
WHEREAS, the retirement of a
Highway Department Leadman who was assigned to provide
day to day supervision at the Landfill, has provided the County with the opportunity to
need for maintaining a Highway Department Leadman position at the Landfill, and
WHEREAS, the Highway
Commissioner requested that the union position of Leadman, assigned
to the Landfill, be eliminated, and
WHEREAS, the Highway Committee,
the Personnel Committee and the Personnel Director
having reviewed the request and recommendation of the Highway Commissioner are in the
that the elimination of the union position of Leadman is necessary for the efficient operation
Highway Department, and
WHEREAS, the elimination of the
Leadman position will result in a cost savings to the County
of approximately $34,737 on an annual basis.
NOW, THEREFORE BE IT
RESOLVED, by the Oneida County Board of Supervisors that
effective the day of passage of this resolution, the union position of Leadman, which is
assigned to the Landfill, is eliminated.
On April 19, 1996, Campshure wrote to Jackson as follows:
Due to the elimination of the position in question, the Union
hereby withdraws grievance #1-96
The Union acknowledges the County's
right, as provided by Article 14, Section C, to eliminate
bargaining unit positions as it deems necessary. All the same, should the County utilize a
unit employee as a Leadman at the Landfill without first posting the position, the Union will
grievance seeking to have the position posted.
Please call me if you have any
More recently, Arbitrator Amedeo Greco issued three awards in which he
the county to have violated the provisions of Article 5. In Case 129, No. 56398, MA-10267
Greco found that the county violated the collective bargaining agreement when it posted a
as "Equipment Operator II/Backhoe" instead of just as an EO2, and when it failed to fill the
within five days. As remedy, Greco ordered the county to repost the position and award the
to the most senior bidder. In Case 134, No. 57116, MA-10522 (8/99), Greco found that the
violated Article 5 when it failed to post a vacancy designated by a particular "beat," or
of coverage. As remedy, Greco ordered the particular beat in question to be awarded to a
employee, to list beats on all applicable future job postings, and to "permanently fill any
vacancies caused by death, retirement or termination within five (5) days after the expiration
posted posting position." In Case 141, No. 58067, MA-10832 (4/00), Greco found the
violated Article 5 by transferring two employees to particular shops without first posting
positions. As remedy, Greco directed the county to "immediately post those positions" and
them pursuant to Article 5, and "in the future post all vacancies caused by death, retirement
termination of any employees, along with all other newly-created positions. As a result, it
any of those positions on a temporary basis."
I will discuss below the meaning and application I draw from this record of
POSITIONS OF THE PARTIES
In support of its position that the grievance should be sustained, the union
asserts and avers
The contract language and arbitrator reasoning support the
Union's position that the Equipment
Operator II vacancy exists and must be filled by the method described in Article 5 of the
The threshold question is whether
Richardson's retirement created a vacancy. A vacancy is more
than the absence of a former incumbent, but rather the continuation of the position the
incumbent held. Union witness Hall testified without challenge that he performed essentially
duties with the same equipment as Richardson before his retirement.
The number of hours worked as
EOII's by those from lower classifications is both substantial and
has grown since 1999. The number of hours worked is especially significant when compared
Richardson's hours from 1998-1999. The confusing county-generated document which the
will argue shows a declining need for EOII's uses meaningless mathematical calculations and
the question of why the county maintained the number of positions it formerly did.
The mere existence of the vacancy
does not compel the county to post and fill it; management
has the right to determine the level of services that will be provided to the public. The Union
compel the County to post a position for which the duties have been eliminated. But where
County has eliminated the EOII position and assigned those duties to other employees on an
as-needed basis without posting or consideration of seniority rights for promotion, it has
collective bargaining agreement.
The County's claim to have
eliminated this position while simultaneously creating another, lower
paid position could be interpreted as a cynical attempt to avoid the required posting as
ordered in a
The Union has, in the interests of
efficiency and in support of on-the-job training, allowed the
County a wide discretion in the temporary use of EOI and HMW personnel to do EOII work.
if the County's position here is upheld, the concept of promotion through seniority could be
at the caprice of the management.
The evidence at hearing, the contract
language and prior arbitral decision support the existence
of a permanent vacancy as defined by clear contract language. Arbitrator Greco has already,
occasions, instructed the County to post and fill any permanent vacancies.
Where the record shows,
as this record does, that the same job duties are performed using the same equipment as
retirement of the incumbent, then a permanent vacancy exists and must be filled according to
contract. The grievance should be sustained, the position posted and filled by the most senior
applicant, and that applicant made whole from April 28, 1999.
In support of its contention that the grievance should be denied, the county asserts
The Oneida County Board eliminated the Equipment Operator II
position on April 20, 1999, and
therefore could not have violated the collective bargaining agreement because no vacancy
The language of the management rights
clause is clear and unambiguous and grants the County
the unfettered right to determine how many employees there will be. The County clearly
right to eliminate the position, and was properly exercising that right, which is not limited.
The language in the collective bargaining
agreement regarding promotions does not take
precedent over the management rights language. Prior actions by the Union on previous
supports the County's right to eliminate bargaining unit positions as the County deems
The parties also have a well established past
practice in regard to the employer's ability and right
to eliminate positions, as reflected in numerous exhibits herein.
There has never been an instance where a
position that the County Board has eliminated has
thereafter been posted. There has never been a position which the Highway Commissioner
to leave vacant that the Union successfully forced the Commissioner to post.
Parol evidence clearly establishes that the
County retains the right to determine how many
employees to employ or retain and in what capacity, while past practice clearly shows the
exercised that right by leaving positions vacant and/or eliminating positions, and the Union
explicitly recognized that right in a written document.
The Union's reliance on the posting
language is also faulty because it would lead to an impossible
decision, namely posting a position that does not exist. There is no threshold requirement in
agreement that the County must meet in order to eliminate bargaining unit positions; still, the
did review the needs of the Highway Department, and made a reasonable determination that
needed nine EOIII's, not ten as would have existed if it retained Richardson's position.
In response, the union posits further as follows:
While the union does not claim that a past practice exists to
support its position, it strongly
rejects the county's claim that one exists to support the county's position. First, the practices
certainly not unequivocal, and it is only in the relatively recent times that the county has
taken to the
use of creative interpretation of the language. The county improperly cites a 1996 grievance
noting that the union withdrew the grievance without prejudice and with the stated intent of
another grievance if the county used a bargaining unit employee as leadman without posting
position. Indeed, the instant dispute is nearly identical to the situation the union said it would
Nor is the county correct in relying on the contractual provision
regarding management rights
to illuminate the understanding of the promotions clause, which section can be better
light of the language on job classification and rates of pay. This article instructs the parties
resolve any differences when there is a new job, piece of equipment or change in duties. The
interpretation would allow it to never fill an EOII on a permanent basis and therefore render
meaningless the promotion language. The union strongly disagrees with that interpretation of
The issue here is not to determine the
number of workers in the Highway Department, but rather
the manner in which the county exercises its awesome management power. The county did
eliminate the EOII job, it just said it did, and that's not reasonable. The county purports to
add to the
contract language in Article 5 the phrase "that the county intends to fill." This isn't a
interpretation of the contract language! If the parties had intended for the language to be in
agreement, it would be in it.
As Arbitrator Greco recognized three
separate times, permanent vacancies must be filled as
described in the contract. The former EOII's retirement created a permanent vacancy that
filled through the procedures of Article 5.
The settlement of this matter whoever prevails will not be of great
financial important to the
victorious side. However, the motives that bring this matter to the arbitrator are of great
to the union. The union seeks a workplace that grants dignity to members as they perform
assigned duties and the opportunity to develop skills and achieve recognition.
This dispute is not about eliminating a job;
it is about whether the county must post a position,
a permanent vacancy that still exists, using the promotion process. The county's claim to
eliminated the EOII position is not
supported in the record by anything more
than their words. The grievance should be sustained,
the EOII position awarded to the most senior applicant, and the successful bidder made
In its response, the county posits further as follows:
The Union errs in relying on several past arbitration awards, all
of which can be distinguished by
material and factual differences, or by the fact that different contract language from another
was involved. Indeed, as a past decision establishes, the creation of a HMW position where
worker may perform some higher-level duties does not create an EOII position that must be
And there has been no testimony that the person hired into the HMW position ever did any
The Union also errs in contending that the
unrebutted testimony showed that employee Hall
performed essentially the same duties as Richardson, with the same equipment. Regardless of
Hall's testimony, the evidence shows a 48% reduction in the number of hours that Hall
primary piece of EOII equipment, compared to Richardson's hours. The evidence clearly
annual decline in EOII machinery hours which the Union has not been able to refute.
The bottom line is whether or not the
County had a reasonable basis for its decision to eliminate
an EOII position. Based on its review of EOII equipment hours and the expectation that an
would be returning to the Highway Department from the Landfill, the County determined
numbers did not warrant the number of positions in existence. To avoid layoffs, the County
for a retirement to reduce the number of EOII positions. As recognized by the Union, the
the right to eliminate positions, and the County has an established past practice of making
level adjustments as necessary. For all these reasons, the grievance should be dismissed.
Oneida County took the opportunity of the retirement of a high-classification employee
to abolish his
position and create instead a lower-level one, a cost-savings move that eliminated an existing
promotional opportunity for the unit. The question before me is whether such a course is
with the proper interpretation and application of the collective bargaining agreement.
I can only answer this question after analyzing and harmonizing two separate
the labor contract. Under Article 5, Section A, the Highway Commissioner "shall cause to be
a notice "(i)n the event of a permanent vacancy," which is a vacancy "created because of the
retirement of any employee." Under Article 12, Section C the Highway Commissioner,
authority vested by the county board's highway committee, "shall have the right to determine
many employees there will be employed or retained ."
How these provisions one directing the highway commissioner to post a
vacancy, the other
granting the commissioner the power to set staffing levels -- relate will determine the
outcome of this
As noted above, this is familiar territory, as the parties have fought frequently over
interpretation and application of Article 5. There have been numerous grievances, with
arbitrators issuing no fewer than four awards on this one article in less than four years.
The grievances which have stopped short of arbitration are also instructive. In the
of the phrase, there is not a past practice here but there is a shared experience
between the parties
that supports the county's interpretation. That is, since at least 1986 the county has been
positions it felt it did not have the workload to justify. That, clearly, has been one reason
unionized workforce has shrunk so dramatically.
However, the county's recent record in Article 5 arbitrations is not good -- in three
awards over only nine months, Arbitrator Amedeo Greco found the county had violated
Article 5 all
three times. 2/ The county did prevail in a slightly older award by Arbitrator Lee Crowley.
2/ Greco's three awards actually encompassed
four grievances, one of which is hard to classify although Greco found that the
"did not violate" a prior settlement agreement, he nonetheless ordered that "the following
steps must be taken in order to properly apply the
Settlement Agreement." Case 130, No. 56399, MA-10268. Herein, citing the Greco
Trilogy, I am referring to the three grievances which the
The Greco trilogy three awards in just nine months certainly shows
the County to have
been less than zealous in its adherence to the dictates of Article 5. However, contrary to the
contentions, I believe there are significant differences between those cases and the one before
In Case 134, No. 57116, MA-10522, the case involved the difference between
permanently assigned beats and the proper posting required respectively, matters not at issue
instant matter. Moreover, notwithstanding that the union prevailed in this grievance, there is
in this award which implicitly agrees with the employer's argument, namely
Arbitrator Greco's directive to the county that it "permanently fill any
posted vacancies caused by
death, retirement, or termination within five (5) days after the expiration of the posting
(emphasis added). That is, this language implicitly accepts the argument that only those
which are posted are required to be filled.
Arbitrator Greco seems to have reinforced this idea in Case 130, MA-10268, wherein
directed the county to immediately offer training after "receiving word of a pending
or termination, and after having decided to fill any such vacancy." (emphasis
added). Thus, while
the specifics of that dispute involving implementation of a Settlement Agreement
opportunities -- are not on point with the matter before me, this language would seem to
undercut the union's argument. The clear implication of Arbitrator Greco's award is that the
provisions of Article 5 are triggered only after the county has made its management decision
Article 12 to fill the vacancy.
The companion grievance addressed in that same award, Case 129, No. 56398,
involved the designation the county used in posting an EO2 vacancy, rather than any dispute
existence of the vacancy itself. As such, it is not on-point with the dispute before me.
The final installment in the Greco trilogy, Case 141, No. 58067, MA-10832, again
to involve the difference between temporary and permanent assignments, and thus is factually
from the matter before me.
The earlier Crowley Award, however, is directly on point, in that it involves the
a higher-classified position and the assignment thereafter of lower-classified employees to do
of the higher-classified work, for which they were compensated at the wage rate of the
classification. That, of course, is precisely what happened in the case before me.
Arbitrator Crowley's analysis that the "evidence establishes that the assignment of work of a
classification does not create a vacancy, either temporary or permanent so the provisions of
5 are not applicable" is important in my analysis.
The Crowley case involved a junior employee working as Leadman for 103.75 hours
three-month period, or a little more than once a week. Crowley described such a workload as
indicating that the subject employee only "occasionally worked in a higher classification."
workload at issue in the case before me shows even less frequent use of lower-ranked
From the abolition of the EO2 position through the end of 1999, highway
workers and equipment operator I's worked about 583 hours on EO2 duties, averaging about
hours, or less than one day per month per employee. For 2000, this workforce totaled about
1242 hours, averaging about 104 hours or a bit more than one day per month per
employee. In 2001,
this cadre worked about 1115 hours on EO2 work, averaging about 93 hours or almost
day per month. Thus, the most frequent use (expressed as an average) of
lower-rated employees on
higher-rated work was a bit more than one day per month about four times
less frequent than the
amount of use Crowley described as "occasional," and thus not requiring a posting. Indeed,
employee in the Crowley case worked essentially the same number of hours in three months
lower-classified employees herein worked, on average, over a full year.
The union places great stock in Langlade County, Case 90, No. 58113, MA-10847
(Nielsen, 6/00), even going so far as to rewrite the text of that award by inserting therein the
of the instant matter. While much but not all of the underlying analysis is
indeed supportive of the
union's case, the significant factual differences substantially reduce its persuasive power.
First, the Langlade County case featured contract language which does not appear in
instant matter, specifically the following:
ARTICLE 6 -
C. Whenever a vacancy occurs, or a new job is
created, it shall be posted on all shop bulletin
boards for a period of five (5) working days. The County
may delay the posting of any
vacancy or new job for up to a period of four (4) months until such position job is deemed
necessary, provided no employee performs the work or operates the equipment for
position or job unless in an emergency. An emergency should be defined as a sudden
necessity, requiring immediate action. The secretary of the Union shall be provided with a
copy of the posting. (emphasis added).
As Arbitrator Nielsen commented, this language "is unusually strong as to the need to
fill a vacant position or leave the equipment assigned to that position idle except in
as is apparent, there is no comparable provision in the contract now before me.
While this difference in contract language is enough to differentiate the two cases, I
the differences in the underlying facts. In Langlade County, the county continued to use the
disputed heavy trucks 66% of the workdays during the construction season, which Arbitrator
said constituted using a ninth truck "on a regular basis." As noted above, the EO2 workload
EO2's in the case before me ranged from 12% to 16% in the three years
following the elimination of Richardson's position, and the total number of EO2 hours
employees combined has actually decreased by more than 12% from 1999 and by more than
from the workload the last full year before the disputed personnel transaction. Morever, the
percentage of time non-EO2's have performed EO2 work has ranged from about 18% to
or at best, less than half of what Arbitrator Nielsen described as "regular." Accordingly, I
Oneida County did not assign non-EO2's to perform EO2 work "on a
regular basis" as Arbitrator Nielsen used that term. For these reasons, I decline to follow
The labor agreement between the parties anticipates that a certain amount of
out-of-classification work will be assigned; that is the purpose of Article 13, Section A
to ensure that
lower-classified employees are paid the higher wage when doing higher-classification duties.
noted above, the union does not claim that any individual EO1 or HWM has not been
compensated for doing EO2 work.
As Arbitrator Greco held, the requirement for properly posting vacancies is real and
meaningful, and must be enforced. However, as Arbitrator Crowley held, the employer is
to create or maintain a position year-round just because an employee occasionally does work
higher classification. There is a level of out-of-classification work which would be
constitute a violation of the working agreement; in the matter before me, however, the
not reached that level.
Under the facts of this matter, I find that the continuing workload of EO2 duties does
establish that there is a vacant EO2 position which the county was required to post.
the basis of the record evidence, the language of the collective bargaining agreement and the
arguments of the parties, it is my
That the grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 21st day of August, 2002.