BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WASHBURN COUNTY PROFESSIONAL,
TECHNICAL AND CLERICAL EMPLOYEES
LOCAL 2816, AFSCME, AFL-CIO
WASHBURN COUNTY, WISCONSIN
Mr. Steve Hartmann, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box
364, Menomonie, Wisconsin 54751, appearing on behalf of Washburn County Professional,
and Clerical Employees Union, Local 2816, AFSCME, AFL-CIO, referred to below as the
Ms. Kathryn J. Prenn, Weld, Riley, Prenn & Ricci, S.C.,
Attorneys at Law, 3624 Oakwood Hills
Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of
County, Wisconsin, referred to below as the County or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The County and the Union jointly requested that the Wisconsin
Relations Commission appoint Richard B. McLaughlin, a member of its staff, to serve as
to resolve a grievance captioned as 2001-06, filed on behalf of Local 2816. Hearing on the
was held on February 21, 2002, in Shell Lake, Wisconsin. The hearing was not transcribed.
parties filed briefs and reply briefs by August 21, 2002.
The parties stipulated the following issues for decision:
Has the County violated the collective bargaining
agreement by refusing to allow
probationary employees to post into vacancies under Article 10 of the parties' collective
If so, what is the
ARTICLE 5 GRIEVANCE PROCEDURE
Section 5.01. Definition of Grievance: A grievance
shall mean any dispute concerning the
interpretation or application of this contract.
. . .
Section 5.06. Grievance Arbitration:
. . .
D. Decision of the Arbitrator: The arbitrator shall
not modify, add to, or delete from the express
terms of the agreement and the decision of the arbitrator shall be limited to the subject matter
of the grievance.
. . .
ARTICLE 7 EMPLOYEE DEFINITIONS
Section 7.01. Regular Full
Time Employee: A regular full time employee is hereby defined
as an employee who is scheduled to work the full hourly work day and work week in a
Section 7.02. Regular Part
Time Employee: A regular part time employee is hereby defined
as an employee who is scheduled to work in a permanent position and who is not a regular
employee. Regular part time employees are entitled to receive fringe benefits on a prorated
Hours worked in the previous quarter will be used to determine proration.
ARTICLE 8 PROBATIONARY PERIOD
Section 8.01. Duration: Newly hired employees
shall serve a twelve (12) month
probationary period. During the probationary period, the employee shall be subject to
discharge without recourse to the grievance procedure.
Section 8.02. Benefits:
Upon six (6) months of service, employees shall receive benefits as
outlined in this agreement computed from their starting date of employment. Upon
completion of the probationary period, employees shall receive all rights and privileges under
working agreement and may be disciplined or discharged for just cause only with full
through the grievance procedure of this agreement.
ARTICLE 9 SENIORITY, LAYOFF AND
Section 9.01. Definition: It shall be the policy of
the Employer to recognize seniority. The
seniority of all regular full time and regular part time employees covered by the terms of this
agreement shall consist of the total calendar time elapsed since the date of original
employment. . .
ARTICLE 10 JOB POSTING, TRANSFER AND
Section 10.01. Vacancy Defined: A vacancy shall
be defined as a job opening within the
bargaining unit not previously existing or as a job created by the termination, promotion or
of existing personnel, if the Employer decides the need for such a job continues to exist.
Section 10.02. Posting
Procedures: Whenever a vacancy occurs or a new job is created it shall
be posted on a bulletin board for a period of seven (7) calendar days.
Each employee (or their designee) interested
in applying for the job shall endorse their name upon
such notice in the space provided. . . .
The employee with the greatest seniority
who is able and qualified shall be given the job at equal
pay or the next highest step, whichever is greater. If there is any difference of opinion as to
qualifications of any employee, the employee may take the matter up for adjustment under
grievance procedure. . . .
When an employee is awarded a position in
a lower pay range the employee shall be assigned
in the new lower range to the step nearest the employee's rate of pay.
Section 10.03. Trial Period:
Employees who receive a posted job shall be considered on trial
for sixty (60) calendar days. Should the employee not qualify, or if the employee should
shall be reassigned to their former position without loss of seniority. Such reassignment may
at any point during the time covered by said sixty (60) calendar days.
Section 10.04. Employees
within the bargaining unit who apply for available positions through
the County's application process rather than through the posting procedure shall be entitled to
maintain their accrued sick leave, vacation, seniority rights and other benefits, except that
serve a sixty (60) day trial period and shall not have the right of retrocession. During the
the employee shall not use vacation or sick leave.
. . .
ARTICLE 18 SICK
. . .
Section 18.05. Newly Hired Employees: Newly
hired employees shall not be allowed to use sick
leave during the initial probationary period; however, at the completion of their initial
period, newly hired employees shall be credited with sick leave computed from their starting
Grievance 2001-06 alleges that "Probationary employees (are being) denied their
to post" in violation of "Section 10.02 and any other provision which may apply." The
seeks the County be ordered to "cease and desist" and "any other remedy that may be
Michael Miller is the County's Administrative Coordinator/Personnel Director and
letters dated April 6, 2001 to two probationary employees who sought to sign postings for
vacant positions. Each letter includes the following paragraph:
Due to the fact that you are a probationary employee you are
ineligible to post into a vacant
position until your probationary period has ended.
The Union responded by filing Grievance 2001-06. Evidence at
hearing centered on bargaining
history and past practice.
Bargaining History Evidence
The parties' 1996-97 labor agreement stated the following under Article 8:
Section 8.01. Duration: Newly hired employees
shall serve a six (6) month probationary
period. During the probationary period, the employee shall be subject to discipline and
without recourse to the grievance procedure.
Section 8.02. Benefits:
Employees shall receive benefits as outlined in this agreement. Upon
successful completion of the probationary period, employees shall receive all rights and
under the working agreement computed from their starting date of employment and may be
disciplined or discharged for just cause only with full recourse through the grievance
In the negotiations for a 1998-99 labor agreement, the County proposed to change this
create a one-year probationary period. The Union ultimately agreed, and the revised
remained in place since then.
Steve Hartmann and Miller served as spokespersons for the Union's and the County's
bargaining teams in negotiations for a 1998-99 labor agreement. Hartmann testified that the
cause provision was the linchpin of the discussions. Neither party raised any issue regarding
eligibility of probationary employees to sign for a posted position. The Union agreed to
probationary period to one year, but did not wish to affect the usage of, or eligibility for,
other than access to the grievance procedure in cases of discipline or discharge. Hartmann
has consistently and "strongly" counseled probationary employees to be careful in signing for
Miller testified that probationary period employees receive benefits that include health
dental insurance from the first of the month following their date of hire; Wisconsin
benefits consistent with statute and rule; holidays from their date of hire; and vacation and
benefits that accrue from their date of hire but cannot be used until the completion of six
employment. Distinguishable from these benefits are the rights and privileges recognized in
8 to date from the satisfactory completion of the probationary period. Those rights include
the posting procedure and access to the grievance procedure in cases of discipline or
Miller testified that during the negotiations for a 1998-99 labor agreement, the
secured a one-year probationary period in return for keeping vacation and sick leave usage
tied to a
six-month period. To permit posting for probationary employees clouds the effective
a probationary period. The one-year evaluation process is cut short if employees can switch
positions, and this complicates the evaluation process. From Miller's perspective, the initial
probationary period is for an overall review of employee competence. Once a
probation period is
completed, the County permits employee movement between positions and the Section 10.03
period is solely to determine immediate fitness for a specific position.
Anna Marie Brown has served as the Union's President and Chief Steward. She
the parties negotiated Section 10.04 in response to a situation involving a non-probationary
who successfully applied for a position as an external applicant. Because the employee had
a posting, the trial period, "retrocession" and benefit retention rights were unclear, and the
negotiated Section 10.04 to address the uncertainty. Hartmann participated in those
acknowledged that the section gives employees two vehicles to apply for a position.
that he was unsure why this was necessary, and added that he was less concerned with
of the application process than resolving a problem. Miller testified that although the section
restricted to probationary employees it is a probationary employee's sole access to a posted
Past Practice Evidence
Miller testified that he has consistently advised probationary employees who inquire
posted positions that they are ineligible to sign. The April 6, 2001 letters were the most
statement of a long followed position. He searched County records and discovered a letter,
December 16, 1996, from his predecessor, Stephen Pittelkow, to Julie Kessler, which states:
Thank you for your interest in the job posting for the Secretary II
position . . .
Since you were still on probation at the time
of the posting and not covered under the terms of
the union contract, you are not eligible to post for the position.
A copy of the letter is enclosed for your
records. Please acknowledge your receipt and
understanding of this letter by signing the original and returning it to the Personnel
you have any questions regarding the job posting, please contact this office.
The letter contained a signature and a date line for the
acknowledgement. Neither was completed,
and the County's personnel files include no documentation of an acknowledgement of receipt
letter. The letter listed Brown and one other Union official in the "cc" section. Brown
she is sure she received it, but cannot recall receiving it. She did not know why the Union
grieve the issue.
Brown added that the parties discussed posting issues, including the eligibility of
employees to sign postings, during labor-management meetings held in 1996. She stated that
Union and County repeatedly expressed disagreement on this issue. Hartmann added that the
posed by Grievance 2001-06 has been a point of disagreement for years.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Initial Brief
After a statement of governing agreement provisions, the Union notes that
employees are employees as defined in Article 7" who "have seniority by terms of Article
follows that they qualify for posted vacancies "if they are the senior bidder and have the
qualifications." This conclusion rests on clear and unambiguous language.
The County's case rests on two bases. The first is traceable to Section 10.04 and the
is traceable to Section 8.02. The evidence establishes that Section 10.04 relates to a fact
that has no bearing on this grievance. The parties amended Section 8.02 to "extend the
period to one year from the previous six months." Bargaining history establishes that this
affected only the Union's ability to grieve the discipline or discharge of a probationary
amended language dates all other benefits to "the six month mark."
The County essentially argues that posting is among the "rights and privileges under
working agreement" that await "the satisfactory completion of the probationary period" under
Section 8.02. No evidence supports this conclusion except Miller's unsubstantiated personal
That the parties agree that probationary employees accrue seniority during the probationary
undercuts the opinion, as do the express terms of Section 18.05.
The Union concludes that "since probationary employees possess seniority, the
precluded from finding a limitation on their right to post." Even if such a limitation could
it "could only be for the first six months of the probationary period based on the bargaining
of the parties' movement to a one year probationary period."
The County's Initial Brief
The County contends that the contract clearly and unambiguously supports its
probationary employees have no posting rights. Under Section 8.02, "benefits" commence
through the probationary period while "rights and privileges", including the just cause
unavailable until satisfactory completion of the probationary period. "Posting" must be
among the "rights and privileges" referred to in Section 8.02.
The Union's view would make the reference to "rights and privileges" meaningless,
to arbitral precedent. Beyond this, the Union's view of "fringe benefits" is unsupported by
precedent such as Dodgeland Education Association v. WERC, 240 Wis.2d 287 (2002). The
case does not govern the grievance, but underscores that "words are to be given
their ordinary and popularly accepted meaning in the absence of evidence that the
some other special meaning." Arbitration precedent underscores this.
Sections 10.03 and 10.04 underscore that job posting is a "right and privilege."
grants "retrocession" rights not available through "the County's application process."
rights are not reconcilable to the probationary period established in Section 8.02. Arbitral
supports this conclusion. Any other conclusion would force the County "to take a more
approach in determining which employees are retained." On balance, "'rights and privileges'
mean something and there is little else in the contract that it can mean other than the right to
To the extent the contract is unclear, bargaining history supports the County. The
amended the language of Article 8 in the negotiations for a 1998-99 labor agreement.
testimony establishes that to secure an extension of the probationary period to one year, the
agreed to a Union proposal to "make sure that probationary employees would still be able to
leave and vacation after six months of service." The parties did not discuss job posting
discussions. Significantly, the Union was on notice prior to these negotiations that "the
taken the position that probationary employees are not eligible to post for positions."
precedent affirms that the Union's failure to raise this issue during negotiations should be
Miller has consistently advised probationary employees that they cannot post for
under the labor agreement. Evidence establishes that this position is consistent with that of
predecessor and that the Union was aware of this position. Thus, the Union's failure to
the interpretation it asserts in this arbitration flies against bargaining history and past
County concludes that "the Arbitrator (should) dismiss this grievance in its entirety."
The Union's Reply Brief
Dodgeland has no bearing on this grievance, particularly since the Court addressed
benefits" not "benefits" as stated in Section 8.02. The "ability to post by seniority is a
benefit of the
Agreement in the 'ordinary and popularly accepted meaning' of the term."
Nor are the "inconsistencies" pointed to by the County entitled to any more weight.
period" of Article 10 does not trump the probationary period. The two are separate
creations, and if the County determined "they must 'defensively' terminate an employee prior
end of the new position trial period" then the County would do so, presumably for job
reasons "as is their right." The arbitration cases cited by the County add nothing to this
involve distinguishable contract language and facts.
The County's assertion that bargaining history supports its position "is correct as far
goes." It highlights only Miller's testimony, ignoring that of Union witnesses. That
establishes that the Union agreed to extend no more than the operation of the just cause
from six months to one year. If the County anticipated affecting other benefits, then "it was
responsibility to enunciate it and secure it because the Union's position was that the only
the extension for termination without just cause."
Nor is there reliable evidence of past practice. At best, the County communicated its
and the Union noted its opposition. Some of the evidence of the asserted practice rests on
the County did not communicate to the Union. This leaves no reliable practice, and returns
analysis of the grievance to the language of the agreement alone.
The County's Reply Brief
The County denies that Article 7 qualifies probationary employees for posting rights.
an assertion ignores the provisions of Article 8. Contrary to the Union's analysis,
Section 10.04 is
applicable. That section provides a right of retrocession not available to probationary
Significantly, the provision concerns a "right" and this underscores that the parties expressly
distinguish between "rights" which do not accrue until satisfactory completion of a
period and "benefits" which kick in after six months.
The Union mischaracterizes Miller's testimony concerning the bargaining for a
agreement. Miller never asserted that "all provisions of the agreement except for sick leave
vacation" are available to probationary employees. Rather, he identified several rights and
including "the use of seniority for job posting" which are not available to probationary
The evidence establishes a past practice denying such a right to employees prior to those
That evidence establishes that probationary employees have seniority, but cannot use it for
purposes. The retrocession right granted under Section 10.03 and the right to use seniority
a posted position are rights that fall within the "rights and privileges" that Section 8.02
to employees who have satisfactorily completed a probationary period.
The stipulated issue focuses on Article 10, which governs postings. The parties'
however, call a number of other agreement provisions into play.
The second paragraph of Section 10.02 permits "(e)ach employee . . . interested in
for the job" to "endorse their name upon" a job posting. The third paragraph awards the
to the "employee with the greatest seniority who is able and qualified." The parties do not
that a probationary employee represented by the Union is an "employee"
within the meaning of the labor agreement. Sections 7.01 and 7.02 establish this.
these provisions grant an employee, without restriction, access to the posting procedure.
These provisions do not, however, stand alone. Sections 8.01, 8.02 and 18.05 limit
of an employee who is on a probationary period. Section 8.01 has no direct bearing on the
process, but Section 8.02 does. That section addresses the "benefits . . . rights and
employees during the term of a probationary period. Arguably, the first sentence of Section
clear and unambiguous, but that section must be read with the following sentence. The
of these two sentences and their relationship to Article 10 is not clear and unambiguous,
party advances a plausible reading for them.
Thus, the grievance cannot be resolved as a matter of "clear and unambiguous"
language. Past practice and bargaining history are the most persuasive guides to the
ambiguity in a collective bargaining agreement, since each focuses on the conduct of the
whose intent is the source and the goal of contract interpretation. This grievance contrasts
operation of these guides with more formal guides less well rooted in the parties' conduct.
Past practice evidence is not helpful in the resolution of the grievance. The
of past practice is traceable to the agreement manifested by the bargaining parties' conduct.
however, there is no reliable evidence of agreement. Miller's testimony establishes the
of his view regarding the posting rights of probationary employees. The difficulty is that
and Hartmann's testimony establishes a no less consistently held, but opposed, viewpoint.
Pittelkow's December 16, 1996 letter confirms the consistency of the County's view. Like
testimony, however, it falls short of establishing Union agreement or acquiescence with the
view. The letter cites Brown and the Union President as a "cc", and contains blank lines
for a dated
acknowledgement of receipt. Brown's testimony acknowledges receipt. In the absence of
testimony, there is debatable evidence of Union receipt.
This underscores the weakness of the past practice evidence. Brown's testimony
that the Union received the letter and that the Union voiced its opposition to the view stated
in it. Her
candor in acknowledging receipt of the letter precludes finding the letter to establish Union
with the County's view. As her testimony credibly establishes receipt, it also credibly
disagreement. Even without regard to Brown's testimony, the letter is troublesome evidence
practice. Pittelkow asserts in the letter that a probationary employee "is not covered under
of the union contract." Neither party asserts this view here. In sum, the letter fails to
This poses bargaining history evidence. It establishes both agreement and
concerning the rights of probationary employees to post for positions. Testimony establishes
issue was a source of friction prior to the revisions. Miller's and Hartmann's testimony
the parties did not specifically discuss this issue during the bargaining that produced
a twelve month probationary period. The parties dealt with the impact of the extension
probationary period on the just cause provision, and with the Union's desire to avoid any
extending the probationary period on employee benefit entitlements such as vacation and sick
The evidence establishes that the Union sought to restrict the negotiated change to nothing
the just cause provision and that the County sought a one year period to review an
general fitness for work.
No view of the evidence establishes a specific act to link the extension of the
period to the extension of a ban on a probationary employee's right to sign a posting. As
above, Article 10 affords no basis to conclude such a limitation exists. Thus, the interpretive
is whether the evidence warrants concluding that the parties' revision of Sections 8.01 and
created the limitation. As noted above, this conclusion cannot turn on evidence of specific
Rather, it turns on whether the broad language of Sections 8.01 and 8.02 is sufficiently
viewed against the context of the parties' negotiations, to link job posting rights to the
The persuasive force of the County's view is that the governing terms of Section 8.02
before or after the revisions of 1998-99, refer to a period of time but to the "successful
of the probationary period." Section 8.02 also, before and after the revisions of 1998-99,
distinguishes between "benefits" and "rights and privileges." The 1998-99 revisions altered
sentence structure, but maintained this distinction. If posting is a "right" or a "privilege," it
extended to one year because "successful completion of the probationary period" was revised
Section 8.01 to twelve months.
This argument has considerable persuasive force, particularly if viewed from the
of formal constructs of contract interpretation. However, the force of the County's argument
logical than factual. Significantly in this case, the force of the County's view is undercut by
more closely focused on the parties' bargaining history.
The language of other agreement provisions codifies their bargaining history.
the language of the agreement undercuts the County's view. More specifically, the County's
demands a clear distinction between "benefits" and "rights and privileges." The labor
precludes making the distinction as neatly as the County argues. Section 10.04 links
to "other benefits." This reference denies a distinction between "rights" and "benefits". If
distinction can exist, it implies seniority is a "benefit" not a "right" or a "privilege."
Seniority is more
difficult to characterize as "non-wage compensation" than vacation or sick leave, which the
points to as "benefits." Beyond this, seniority is crucial to the operation of the posting
as Section 10.04 states, seniority is a "benefit", then posting must be. Seniority, in any
event, is more
closely linked to posting than to vacation or sick leave. Beyond this, none of the testifying
could neatly distinguish between what constituted a "right", a "privilege", or a "benefit."
testimony, it appears that the parties agree that a probationary employee has access to the
procedure, outside of
discipline and discharge issues. If so, this makes the grievance procedure a "benefit"
not a "right"
or a "privilege." Whether or not this is the case, it exemplifies the impossibility of drawing
enough lines between these references to support the County's view. Beyond this, Section
affords some support for the Union's view. That section underscores that the parties
the "benefits" available to probationary employees when they chose to do so.
Bargaining history evidence concerning the revisions to the 1996-97 labor agreement
no greater support for the County's view. The parties agree that the discussions that led to
creation of a twelve month probationary period centered on the just cause provision, and did
expressly extend to job posting. The Union sought to alter no more than the just
process, while the County understood the Union's concerns to center on sick leave and
Whatever their differences, the parties agreed, prior to the revisions, that employees could
openings after six months of employment. After the bargaining, the parties agreed that the
probationary period would move from six months to one year. The language they adopted
indicate they did no more than cut and paste the first two sentences of Section 8.02 to the
necessary to preserve prior benefit entitlements and to add a six month extension to the
period. The difficulty with the County's view is that it asserts the parties undertook a more
significant revision of Section 8.02 than the testimony of the participants indicates.
To establish the scope of this conclusion, it is necessary tie it more closely to the
arguments. The County argues that apart from the "rights and privileges" reference, its view
supported by the policy underlying the extension of the probationary period. A probationary
employee who posts to another position complicates the evaluation process by shortening the
period and by shifting the review from general competence to specific competence in the
The policy is well stated and persuasive, but policy to an arbitrator should focus on the
not on the arbitrator's view of how to manage employees.
Significantly, Section 8.01 does not restrict the probationary period to the position an
employee is hired into or to a single position. Rather, it refers to "newly hired employees"
specifies a twelve month time period. Thus, the County's policy argument to restrict the
period to a single position seeks a restriction not stated in the agreement. More to the point,
and Hartmann's testimony on this point are notably similar. Hartmann counsels probationary
employees to be very careful in posting for other positions, and Miller views it as a poor
idea that puts
unnecessary risk into the evaluation process. The similarity of their views reflects that
nothing in the
agreement compels the County to award a position to an employee who has yet to
competence by the time of a job posting. The County has the right to discipline or discharge
"(d)uring" the probationary period. Thus, no probationary employee can compel the County
award a posted position prior to the employee's demonstration of sufficient competence to
their job. As the testimony highlights, such
an employee would put their probationary position at risk to attempt to compel
movement to a posted
position. Beyond this, such movement within the twelve month probationary period could
a probationary employee to an additional level of risk if the County determined the
performance in the "original" job warranted movement to a posted position. If such an
manifested performance problems in the posted position that had not occurred in the
position, the employee would become exposed to non-grievable discipline or discharge as a
the job movement. The interpretive point is not whether it is wise to permit probationary
to post. Rather, the interpretive issue is whether the agreement makes this an available
Concluding that a probationary employee can sign a posting does not introduce
between Articles 8 and 10. The trial period of Section 10.03 does not, by its terms,
guarantee a sixty
day duration, since "reassignment may occur at any point." Nor does the trial period
the twelve month probation period. A probationary employee cannot compel movement into
posted position or a full sixty day trial period. Thus, the County could be confronted with a
on returning a probationary employee to their prior position only if and after it chose to
employee to a posted opening. Such movement would be to a non-probationary position only
County either chose not to terminate or neglected to terminate the employee within the
period set in Section 8.01.
The contradictions pointed to by the County presume that the use of "shall be given
in Section 10.02 and "shall be considered on trial for sixty (60) calendar days" in
Section 10.03 place
a mandate on it that cannot be squared with Sections 8.01 and 8.02. However, these
cannot alter the fact that the employee is probationary or that the operation of the mandates
County willingness to place a probationary employee in a posted position. A County
terminate a marginal employee based on work performance in the original job trumps either
"mandate" in any event. More specifically, the time periods in either Section 10.03 or 8.01
County willingness to permit them to run their full course. As the Union argues, the
faith view of employee work performance makes these provisions reconcilable. The
employee cannot compel movement to a posted position or to non-probationary status.
The Union states alternative positions on when a probationary employee has access to
posting procedure. I do not view the language or bargaining history to pose significant doubt
point. The revised first sentence of Section 8.02 entitles employees to "receive benefits . . .
from their starting date of employment" but conditions this "(u)pon six months of service."
the Union's view that posting is a "benefit" thus demands the conclusion that probationary
do not have access to the procedure prior to six months of employment. Whatever doubt can
to exist on this point is resolved by bargaining history evidence. As noted above, the County
stretched the language of the agreement and bargaining history evidence too far to support a
conclusion that the parties mutually agreed to extend a ban
on posting to twelve months. The Union's assertion that probationary employees have
a right to sign
a posting from their date of hire similarly pushes the bargaining history and the language of
agreement farther than the evidence supports. The County consistently opposed the Union's
of a probationary employee's posting rights. The Union thus asserts that the 1998-99
brought about an agreement never specifically discussed. The language and bargaining
history do not
go that far.
The County's assertion that the Union's view denies meaning to at least part of the
sentence of Section 8.02 has force. However, as noted above, the language of the labor
points away from the distinction drawn by the County, and no testifying witness could
finality how, if at all, a "benefit" is to be distinguished from a "right" or a "privilege."
the primary thrust of the second sentence is to establish the right of non-probationary
the just cause process. That meaning remains. That there is some redundancy in the
Sections 8.01 and 8.02 must be noted. This does not fully address the force of the County's
argument. Ultimately, however, the 1998-99 revisions to Section 8.02 appear to have
parties' attempt to use as much of the prior language as possible, while establishing a twelve
probationary period that did not upset benefits which would otherwise be received at the six
level. To accept the County's position on this argument elevates a formal rule of contract
interpretation over specific evidence of the parties' bargaining. I find this unpersuasive, and
unwilling to push the parties' agreement beyond what the bargaining history evidence
The Union essentially asserts the language should be construed against its drafter.
of interpretation is better suited to commercial contracts where a well-represented entity
enforce an unbargained contract than to a collective bargaining agreement negotiated "at
length." In any event, as with the general rules of interpretation noted above, this rule
should, in my
view, not trump specific evidence rooted in the bargaining parties' conduct. The parties'
of arbitral precedent faces the same problem. Of greater consequence is the language agreed
these parties and the process that preceded it.
The parties stipulated to an issue of remedy, but the record poses no specific damage
employee to remedy. Thus, the Award states my view of the appropriate scope of the
Section 8.02 on the posting provisions of Article 10.
The County has violated the collective bargaining agreement by refusing to allow
employees to post into vacancies under Article 10 of the agreement. Section 8.02 does not,
grant a probationary employee the right to post until the completion of six months of service.
Dated at Madison, Wisconsin, this 24th day of September, 2002.
Richard B. McLaughlin /s/
Richard B. McLaughlin, Arbitrator