BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE AREA TECHNICAL COLLEGE
LOCAL 587, MILWAUKEE DISTRICT COUNCIL 48,
Attorney Robert E. Haney, Podell, Ugent, Haney & Miszewski,
S.C., 611 North Broadway Street, Suite 200, Milwaukee, Wisconsin 53202-5004, on behalf
of Local 587 and Milwaukee District Council 48.
Attorney Eric Rumbaugh, Michael, Best & Friedrich, 100 East
Wisconsin Avenue, Suite 3300, Milwaukee, Wisconsin 53202-4108, on behalf of MATC.
On October 8, 2002, the undersigned conducted a hearing in the captioned case,
the sole issue of the timeliness of the referenced grievance. The parties requested that the
issue her award regarding timeliness as soon as possible and they asked that the Arbitrator
issue her timeliness award on Tuesday, October 15, following the parties' briefing of the
issue, to be
received by the Arbitrator on October 14, 2002 by fax. 1/ The Arbitrator agreed, assuming
support would be available, to issue the Award as described above.
1/ The Union requested that pages 6 through
13 of MATC's brief be stricken as exceeding the Arbitrator's suggested brief length.
Although MATC's brief was longer than requested, the Arbitrator has considered all
arguments therein. The Union's request is denied.
To maximize the ability of the parties we serve to utilize the Internet
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 effective labor agreement, in Article V, Section 1, defines a grievance as ". . .
which involves a violation of one or more specific provisions of this agreement"
Nothing in Article V, Section 1, requires a grievance form to list the specific sections of the
the Union alleges have been violated because of the use of the verb "involves". Nor is there
verbiage in Step 1 or 2 of the Article V grievance procedure that requires such specificity.
parties had intended to require the Union to list specifically each and every provision violated
actions of MATC, they could have easily written such language into the agreement to meet
needs. They did not do so. Therefore, I do not find that the Union was required, as MATC
to include specifically each and every provision of the labor agreement the Union asserted
violated in this case.
Thus, the Arbitrator finds that the Union's description of the situation or action about
the Union had a grievance, was clear enough for MATC to fully understand the nature of the
grievance. Thus, I note that Local 587 indicated that "employees taking voluntary
not being placed at the appropriate wage. Class and Step of jobs are not properly defined,
steps do not represent years of service. . . ." The Union also indicated in the remedy section
grievance form, that "employees should be made whole and . . . transfers and demotions
handled in the same manner." This description, although imperfect, put MATC on notice
the nature of the grievance and the remedy that the Union was seeking. Indeed, MATC
objected that the grievance was unclear or indefinite.
Step 1 of Article V states that the Union Steward or officer ". . . shall
take up the grievance
verbally with the employee's immediate supervisor within twenty-five (25) working days of
occurrence. . . ." or if the officer is "unaware of the grievance" he/she must take it up with
immediate supervisor within twenty-five days "of his/her knowledge of the occurrence."
added). MATC argued that because the contract requires that grievances be filed in writing
35 working days after they occur (or the Union is made aware of them), the Union's failure
a written grievance herein within this time frame requires denial of the grievance. Here,
urged, the Union should have filed its
grievance in September, 2000 after Sujecki first refused to change Ms. Regal's
2/ The grievance documents list Laura Regal;
the parties referred to her as Laura Rangel on the record herein.
The Union does not seriously dispute here that it failed to formally take up Regal's
with Regal's immediate supervisor within twenty-five days of its occurrence or the Union's
knowledge thereof. In addition, the Union does not contest that it failed to "present" Regal's
grievance "in writing . . . to the employee's immediate supervisor within seven (7) working
the supervisor's verbal response was due." (It should be noted that the supervisor's verbal
was due three working days before the written grievance needed to be filed.) Rather, the
asserted herein that it discussed the Regal situation with various MATC managers (including
listed in Article V) at various times including during consensus bargaining, in an attempt to
matter, following Regal's call to the Union on or about September 5, 2000, wherein she
that she was not being paid at the proper rate following her voluntary demotion.
The Union has asserted that because of the approach MATC took in the Regal case,
attempting to settle Regal's issue without clearly objecting to timeliness, MATC led the
believe that MATC had waived Steps 1 through 3 regarding timeliness and had agreed to
processing the grievance at Step 4 when the Union filed its written grievance on the matter
26, 2001. In contrast, MATC argued herein that although MATC processed the Regal
the merits, it never waived its right to raise the lack of timely filing of that grievance.
that no evidence was proffered to show that the Union had ever requested or secured a
waiver of time
limits in this case. Indeed, the subject of waiver never came up until Sujecki's August 15,
wherein he stated (in non-specific terms) that he was reserving his right to assert any and all
of MATC in the case. MATC contended that because a waiver of time limits must be
pursuant to the contract, no waiver can be found based on MATC's actions herein.
Yet well-accepted arbitral case law indicates that even where the contract expressly
time limit waivers to be in writing, the parties' actions may result in a waiver without a
upon equitable considerations. Thus, one parties' recognizing and negotiating concerning a
over a lengthy period of time without making a clear and timely objection to procedural
can constitute a waiver thereof. Elkouri and Elkouri, How Arbitration
Works, BNA (Fifth Ed.,
1997), p. 278 and cases cited. In the Arbitrator's view, the evidence in this case indicates
reasonable person would have concluded that by its words and actions from September, 2000
July 26, 2001, MATC managers had agreed to waive timeliness objections to the Regal
Here, all witnesses who testified regarding the issue of timeliness stated that
the instant grievance were periodic and on-going from September, 2000 through July 26,
is also undisputed that on September 26, 2000, H.R. Director Michael Sujecki responded on
merits of the grievance to his supervisor, Mr. Lester Ingram by e-mail and Sujecki never
the issue of timeliness therein. 3/ No settlement resulted from the on-going discussions
Regal matter during this time period.
3/ Union representatives asserted that in
September of 2000 they believed that they had an agreement regarding the Regal voluntary
demotion pay issue but that that agreement was never finalized. The parties then continued
to talk regarding the Regal matter through ongoing
meetings they were having regarding consensus bargaining. Whether or not Noth and
Haglund were correct about MATC manager Lester
Ingram's position on the Regal case, I note that MATC never took any action to correct Noth
and Haglund's impressions that Ingram agreed with
On July 26, 2001 the parties met regarding a grievance involving Sue Horton. 4/
the Horton grievance, the parties discussed the Regal situation. At this time, District
representative Malou Noth, told H.R. Director Sujecki that given the parties' failure to settle
Regal situation, the Union would file for immediate arbitration of the Regal matter (thereby
Steps 1 through 3 of Article V). Sujecki admittedly responded "fine." (Tr. 97); "go ahead
for arbitration" and "I agree" (Tr. 113). However, Sujecki also stated to Noth at this time
had not seen a grievance on the matter.
Sujecki admitted herein that it is unusual for a grievance to go immediately to
that by agreeing to take the Regal matter to immediate arbitration he did not believe he had
MATC's right to object to the timeliness of the filing of the grievance. Sujecki stated that he
raise timeliness with the Union on July 26, 2001 or previously because he believed timeliness
be later decided by the Arbitrator. Sujecki also admitted herein that he never asked the
the Regal matter kept arising in discussions between the parties from September, 2000 until
2001, when he believed the case had settled. In these circumstances, the Arbitrator finds
representatives reasonably concluded that timelines would not be a problem in this case. In
Sujecki should have raised timeliness as an issue at the latest when Noth made the
comments on July 26, 2001.
4/ The Union asserted that shortly before the
meeting of July 26, 2001, Vice President for Human Resources, Vivian Joyner told the
that she would get back to the Union with a decision regarding the Regal/demotion pay issue.
District Council 48 representative Noth stated that
Joyner never got back to her or the Union with a decision. On this basis, the Union argued
that the verbal step of the grievance was never
completed by the employer and that the Union's filing of the grievance in written form on
July 26, 2001 was supported by all of the evidence and
discussions of the parties that had occurred prior to July 26, 2001. As Joyner did not testify
herein, Noth must be credited on this point.
Following the July 26, 2001 discussions regarding the Regal matter, District
Noth sent Sujecki the following letter dated July 31, 2001 regarding the Regal voluntary
. . .
On behalf of Local 587 and per our conversation of July 26,
2001, it is my understanding that
we have mutually agreed to proceed to arbitration on the above-noted grievance.
This decision was based on the fact hat
discussions have been held on this subject numerous
times and with various parties, all whom preside over each step of the grievance process, and
still unable to come to a resolve.
If this is not your understanding, please let
me know as soon as possible.
. . .
On August 15, 2001, Sujecki responded to Noth's letter as
. . .
In response to your letter of July 31, 2001, it is agreed that
discussions have been held on this
matter at the request of Local 587. It is the position of the District, however, that it has
with the requirements of Article XVIII, Section 1, of the Local 587 Agreement, in the
those employees accepting voluntary demotions. The District does not share the union's
the District has violated any provision of the Labor Agreement. Therefore, the District
right to raise any and all defenses available to it regarding this matter.
Following her receipt of Sujecki's August 15, 2001 letter, an
angry Noth confronted Sujecki
and asserted that Sujecki knew what Noth meant by moving the case immediately to
accused Sujecki of lying to her.
In addition, on September 13, 2001, Sujecki requested that the grievance regarding
held "in abeyance" without mentioning timeliness, and on October 18, 2001, Sujecki
memo to the Local 587 bargaining committee regarding the demotion pay issue, suggesting a
resolution of the merits of that case, again without raising timeliness. In addition, on
2001, Sujecki executed the following formal agreement in this case which the Union Vice
had executed on October 30, 2001:
WAIVER OF CONTRACTUAL TIMEFRAME FOR GRIEVANCES
PER ARTICLE V "GRIEVANCE AND COMPLAINT
BETWEEN MILSAUKEE AREA TECHNICAL COLLEGE AND
It is hereby agreed that the contractual time frame for grievance #
01-04 (voluntary demotion)
is mutually held in abeyance until Local 587's Executive Board Meeting, November 7, 2001
decision to accept/reject proposal from MATC (Demotion Language) presented on October
This waiver is not to be interpreted as a
precedent by either party or as a waiver to any other step
of the said procedure except as designated above.
. . .
It was not until on February 21, 2002 that the College issued
answer to the instant
grievance. That answer read, in relevant part, as follows:
. . .
2. What is your decision?
The grievance is denied.
3. What is the basis of your
decision? (Why have you reached the particular decision state din
The Union filed this grievance at Step 4.
Prior to the hearing, this response was issued. The
grievance is denied on the following grounds:
1. It was not filed in
accordance with Article V, the Grievance and Complaint
Procedure. The grievance states that the violation occurred on September 5, 2000.
The grievance is dated August 27, 2001. Therefore, it was not filed timely as required
by Article V.
2. Article V states that
"a grievance is any matter which involves a violation of one or
more specific provisions of this Agreement." The union has failed to identify what
provision of the contract has been violated.
. . .
This is the first formal response the Union received regarding the
instant grievance and it is the first
time MATC argued that the grievance was untimely filed. Thus, between July 26, 2001 and
21, 2002, MATC failed to raise the issue of the timeliness of this grievance.
Given all of the facts enumerated above, it is clear to the Arbitrator that the manner
MATC processed the instant grievance would have led a reasonable person to believe that
had waived time limits regarding the case. It was the Employer's responsibility to make it
early on as possible in the processing of the matter, that MATC would be objecting to
this case. Whether or not MATC actually intended to do so, its words and actions
the Union into a sense of false security regarding the timeliness issue. In this regard, I note
Sujecki had a number of opportunities to make it clear to Local 587 and District
Council 48 that he
was going to object to the timeliness of the filing and processing of the instant grievance.
not utilize these opportunities. Sujecki's assertion that timeliness is an argument that should
be placed before an Arbitrator is insufficient basis to allow MATC to avoid addressing the
the Regal grievance and to deny the Union its "day in court" on the merits of the Regal
given all of the circumstances here.
Based on the above analysis, I issue the following
The grievance was timely filed and processed.
Dated at Oshkosh, Wisconsin, this 25th day of October, 2002.