BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL 579
CITY OF JANESVILLE
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Jill M. Hartley, 1555 North Rivercenter Drive, Suite 202, P.
O. Box 12993, Milwaukee, Wisconsin 53212, appearing on behalf of the Union.
Attorney Wald Klimczyk, City Attorney, City of Janesville,
Municipal Building, 18 North Jackson Street, P.O. Box 5005, Janesville, Wisconsin 53547-
5005, appearing on behalf of the City.
City of Janesville and Janesville Transit System, hereinafter City, and Teamsters
No. 579, hereinafter Union, are parties to a collective bargaining agreement that was
in effect at all
times relevant to this proceeding which provides for final and binding arbitration of certain
A request to initiate grievance arbitration was filed with the Wisconsin Employment
Commission on May 28, 2002. Commissioner Paul A. Hahn was appointed to act as
June 27, 2002. Hearing took place on September 12, 2002 in the City of Janesville,
Wisconsin at City
Hall. The hearing was not transcribed. The parties were given the opportunity to file post
briefs. Post hearing briefs were received by the Arbitrator on October 14, 2002 (City) and
16, 2002 (Union). The parties were given the opportunity but declined to file reply briefs.
record closed on October 16, 2002.
The parties stipulated to the following issue
Was the Grievant denied overtime in violation of the parties'
Collective Bargaining Agreement
on August 2, 13, 14 and 15, 2001?
If so, what is the appropriate remedy?
The Union recognizes the City as the
Employer and, except as specifically limited by the express
provisions of this Agreement, as having the rights to manage and direct the affairs and
the City and to manage and direct its employees. These rights include but are not limited to
following: To plan, direct, control and determine all the operations and services of the City;
establish priorities for all operations and services of the City; to supervise and direct the
to establish qualifications for employment and promotions; to create or abolish jobs; to
descriptions and reasonable levels of performance of jobs; to establish work, to establish
to assign overtime; to determine the methods, means, organization, and number of personnel
the operations and services of the City shall be conducted; to contract or subcontract work;
establish and enforce regulations; to discipline, demote, suspend or discharge employees for
cause; to change or eliminate existing methods, equipment or facilities; provided, however,
exercise of any of these rights shall not conflict with any of the express written provisions of
Agreement, nor shall such rights be used to discriminate against the Union or its members.
shall discuss with the Union any proposed change, and its impact, that would affect wages,
working conditions of employees, before implementing such change.
. . .
ARTICLE 5 HOURS OF
WORK HOURLY RATES OVERTIME RATES
. . .
Section 8. Regular full-time employees shall be
offered first opportunity to work in all openings
in regular year-round routes, full-time maintenance work schedules, and charter runs, if the
hours scheduled are greater than what employee(s) is presently scheduled to work, except
openings occur as the result of any leave of absence or suspension. This provision will not
when the City is aware of such opening for less than one (1) hour prior to the occurrence of
When full-time employees are offered the
opportunity to full such openings and such work will
be at the overtime rate, such overtime will be offered strictly on the basis of seniority from
monthly list of employees who have indicated a
willingness to work overtime in the
particular time period. Any employee who refuses to work
overtime more than four (4) times shall be dropped from the existing monthly list. Anyone
up after the first of the month will be placed on the bottom of the overtime list for picking
overtime. Once overtime work is accepted by an employee, the employee shall not drop the
assignment unless due to an unforeseen verified illness. The same attendance rules, as stated
Transit Department's work rules, apply to overtime as for an employee's regular work shift.
. . .
ARTICLE 11 GRIEVANCE PROCEDURE
. . .
Section 6. Arbitration shall be
limited to a determination of whether the Employer or the Union
has violated the express terms of this Agreement. The Arbitrator shall not have authority to
any dispute other than whether the Agreement has been violated and he or she shall not add
detract from, nullify, ignore, or modify in any way the terms of this Agreement.
. . .
STATEMENT OF THE CASE
This grievance involves the City of Janesville, Wisconsin and the Janesville Transit
and Local 579 affiliated with the International Brotherhood of Teamsters. (Jt. 1) The Union
that the City violated the collective bargaining agreement by refusing to offer the Grievant
pursuant to the parties' collective bargaining agreement and a long-accepted past practice. (Jt.
3) The Grievances were filed on October 2, 2001 and denied by the City on
December 21, 2001. (Jt.
5) The City operates a bus transit system for the benefit of the public and the citizens of the
Janesville. Grievant at the time of the circumstances leading to the grievance and as of the
date was a full-time bus driver for the City.
The City employs 15 full-time regular bus drivers, the majority of whom are assigned
routes and often work a split shift as did the Grievant. Three of the full-time regular drivers
assigned as relief drivers. The first relief drives on other employees' days off, the second
in for employees on vacation and the third relief driver covers for remaining driving time on
that are left over and must be filled. The City also employs mechanics and part-time drivers;
part-time drivers drive when regular full-time drivers are on a leave of
absence, on suspension or for reasons other than those covered by the full-time drivers
and when full-time drivers are not available. The parties' labor agreement, Article 5,
Section 8 and a longstanding
past practice have provided that regular full-time drivers, on the basis of seniority, will be
overtime first, after the relief drivers have taken care of all the overtime that they are able to
Part-time drivers and mechanics do not take overtime unless no full-time drivers are
available. Part-time drivers also perform what is considered utility work, such as cleaning
bus shelters and buses and
engaging in miscellaneous driving covering lunch routes and routes of regular full-time
call in at the last minute.
This arbitration results from the settlement by the parties of a grievance involving
employee Mel Walker. Walker was a part-time employee who was only supposed to work
in a two-week pay period. Walker consistently worked over 60 hours and the Union
the course of several months of meetings to settle Walker's grievance, the parties reached a
settlement agreement which was signed by the City on July 3, 2001 and by the Union on
July 5, 2001.
(Jt. 4) Pursuant to the settlement agreement, Walker was promoted to full-time driver
as of January 31, 2001. A full-time utility person position was simultaneously created in the
System table of organization; this position was classified under the labor agreement as a
driver and was effective as of the date of Walker's promotion. The settlement agreement set
certain utility duties that this full-time driver would perform which would be similar to duties
currently performed by part-time drivers. Regular full-time and relief bus drivers do not
duties other than driving a bus.
Soon after the settlement agreement, Walker, who was promoted to the full-time
position and assumed the utility person duties, was also assigned as a relief driver by the
began to drive schedules and hours that would have been available to other full-time drivers
overtime if Walker had not been working them as a fourth relief driver. This use of Walker
hours that would have been overtime hours for other full-time drivers led to the two
by the Grievant in October of 2001. As will be seen in the statement of the parties'
parties, while agreeing to the Walker settlement agreement, significantly disagreed as to what
new full-time driver position could do. The Union argues that it never agreed to create and
Walker to a position of fourth relief driver who could take overtime hours; the City argues
was a clear understanding that it would be allowed to use Walker to drive previous overtime
at straight time in order to cut down the wage and fringe benefit cost to the City of
to a full-time driver position. On four dates in August of 2001, the Grievant alleges that she
available to work what would have been overtime hours had Walker not been driving and
settlement agreement as interpreted by the City deprived her of these overtime hours.
The parties failed to achieve resolution through the grievance procedure. The matter
appealed to arbitration. No issue was raised as to the arbitrability of the grievance. Hearing
matter was held by the Arbitrator on September 12, 2002.
POSITIONS OF THE PARTIES
The Union argues that the settlement agreement was not intended to alter a past
required that overtime hours be first offered to regular full-time drivers, like Grievant,
offered to part-time employees. The Union submits that the settlement agreement language
the clear understanding that Walker's duties would be similar to those duties currently
part-time bus drivers to include but not be limited to:
Assigned on a weekly basis to open protection,
driving, and miscellaneous assignments after
full-time relief drivers have been assigned.
include snow removal, shelter cleaning, fuel line, bus cleaning, bus
stop sign replacement and similar duties which might be considered "garage" duties that are
within the "Full-time Utility Person's" skills to perform.
Further, the Union points out that although promoted to
full-time driver status, Walker was
also to be the full-time utility person and that Walker's duties would continue to be similar to
part-time drivers and part-time drivers never receive assignments before full-time drivers get
opportunity to work overtime hours. Further, there were no discussions that Walker would
assigned as the fourth relief driver. The Union submits the doctrine of expressio
unius est exlusio
alterius to express one thing is to exclude another, which the Union argues
is applicable here that
by looking at the bullet points there is nothing in them to suggest that the Walker settlement
make Walker a relief driver.
The Union submits that reading the settlement agreement as a whole it is clear that
aforementioned duties assign Walker to what part-time drivers do and part-time drivers do
the same rights as the Grievant, a full-time driver who was also without dispute senior to the
whose full-time seniority per the settlement agreement only started as of January 31,
The Union argues that it made clear during numerous settlement discussions
settlement of Walker's grievance that it did not want any change in the past practice that
three relief drivers were occupied full-time drivers would receive an opportunity for
which they had signed; further, the Union did not want to in any way alter the collective
agreement. The Union submits that the City position, stated at the arbitration hearing,
wanted the flexibility to use Walker to drive overtime hours at
straight time to save money to pay for Walker's promotion to a full-time driver was
never put in the
settlement agreement. The Union submits the arbitral rule that a document is to be construed
whole and that any confusion or doubt as to the meaning of the agreement arising from the
language must be construed against the City as the drafter. Bolstering this argument, the
points out that the City during the hearing agreed that during the settlement discussions the
said that it would create a fourth relief driver, and yet it posted the position as a relief driver
It is the Union's position that the Grievant was able to work the overtime hours for
had posted which were worked by Walker and that the City could have arranged some of
hours and driving to allow the Grievant to work some of the hours at overtime. As to the
argument raised at the hearing and in the City brief, that the second grievance regarding
hours denied on August 13, 14 and 15, where the Grievant stated in her grievance an
term of the labor agreement, the Union argues that a grievant is not held to a high standard
setting forth the contract language applicable to a grievance. The Union also submits that the
Director's response to the grievance (Jt. 5) clearly acknowledged that the parties were
that the grievance arose from the alleged denial of overtime hours to the Grievant based on
Walker settlement and therefore the City had notice well before the arbitration hearing as to
substance of the grievance.
In conclusion, the Union argues that the Grievant was available and had signed for
on August 2, 13, 14 and 15 of 2001. The City violated the parties' labor agreement and past
when it failed to offer the Grievant overtime on those occasions and instead gave the
utility person Walker. Nothing in the parties' contract or the Walker grievance settlement
gave the City the right to use the utility person (Walker) to deprive regular full-time bus
overtime. Therefore, the Union requests that the grievances be sustained and the Grievant
whole for the overtime wages lost as a result of the City's contract violation.
The City takes the position that the settlement agreement (Jt. 4) resulted in the
another full-time driver position and that this full-time driver could also perform utility and
miscellaneous work as set forth in the settlement agreement. The City argues that under the
contractual management rights clause it can assign relief duties to full-time drivers as it has
past. The City submits it has the right to always assign more drivers to relief or to hire
something which the City argues the Union agrees to. The City submits that the settlement
therefore did not modify the collective bargaining agreement. The City notes that there is no
classification in the collective bargaining agreement other than full-time driver and part-time
as stated under the salary schedule, and therefore, it has retained the flexibility to assign
relief and could assign Walker to that relief position. The City argues that the settlement
does not prevent assigning relief status to Walker.
As to the specific hours that the Grievant alleges that she could have worked overtime
the City points out that Grievant works a split shift from 6:00 a.m. to 10:00 a.m. and
2:30 p.m. to
6:30 p.m. on Monday through Friday. The City argues that the Grievant was not available
the full blocks of hours which might have been available to her but for the legitimate
Walker to those hours. There were other hours available later in the day on those particular
for which the Grievant could have signed but failed to do so since the only hours that the
wishes to work extra are the hours between her shift, which would be from 10:00 a.m. to
Contrary to the Union, the City argues that the collective bargaining agreement does not
to change shifts or drivers and that this is consistent with the collective bargaining
Further, the City submits, and as the Union witnesses agreed, there is no guarantee of
overtime to any
employee in the bargaining unit based on the collective bargaining agreement.
Contrary to the Union, the City argues that it only agreed to the Walker settlement to
Walker to a full-time driver position if it could reduce the cost of that promotion by having
flexibility to assign Walker to drive overtime hours at straight time. The City argues that its
credibly testified that during the course of the negotiations to settle Walker's grievance, City
representatives consistently told the Union that upper management would never agree to add
full-time driver position unless the cost could be offset by that position taking hours
worked as overtime.
The City argues that the alleged contractual violation referenced in grievance 2 (Jt.
vacation article in the collective bargaining agreement, has no bearing on the grievance and
should result in a denial of the Grievant's second grievance relating to hours on August 12,
14. Further, the City posits that to agree with the Union and Grievant is to negate the City's
to hire and assign drivers and would result in a rejection of the City's rights under the
bargaining agreement and render the Walker settlement agreement meaningless.
In conclusion the City submits that the utility and relief position assigned to Walker
no sustainable basis to allege that the City violated the collective bargaining agreement on the
days in question. Based on the facts in the record, the Grievant was not denied overtime pay
violation of the parties' collective bargaining agreement for any hours on August 2, 13, 14,
The City's actions were consistent with all provisions of the collective bargaining agreement
dates and times in issue. The two grievances are without merit and were properly denied by
and the denial of the grievances should be upheld.
This is a contract arbitration case. The Union alleges that the City violated the
collective bargaining agreement by not affording the Grievant the opportunity to work
August 2, 13, 14 and 15 in 2001. The City's transit system employs 15 full-time
bus drivers. Three of those drivers are assigned or designated as relief drivers. The
does not have a classification for relief drivers; they are merely full-time drivers so
drivers cover for vacations of regular drivers who work regularly scheduled year around
also cover for other time off and any hours that are left over where full time drivers are not
The City also has a contractual classification of part-time drivers who are scheduled to work
than 60 hours in a two-week pay period. These drivers cover leaves of absence, lunch relief
regular routes when the City has less than one hour's notice that a regular driver will be
absent. Part-time drivers also perform miscellaneous duties such as snow removal, cleaning
buses and related
work. The City also employs a classification of mechanics.
The fifteen regular and relief drivers can sign a monthly posting stating their
work overtime. Schedules are adjusted on a weekly basis. The record establishes, based on
testimony of witnesses for both parties, that there has been a past practice that when overtime
are available, relief drivers receive the first opportunity to work them. Any hours left over
offered to the other full-time drivers who have signed the overtime availability posting. Any
remaining hours are offered to part time drivers. It is also clear that regular full-time drivers
drivers do not perform any of the miscellaneous duties performed by part-time drivers. The
contractual language of Article 5, Section 8, of the agreement supports the
practice regarding the
offering of extra hours at overtime.
At the heart of this matter, is an Agreement (Jt. 4 ) which resolved a grievance
employee Mel Walker. As set forth in the Statement of the Case, the settlement of Walker's
grievance created another full-time driver position which, as the parties agreed, would create
full-time "Utility Person." The City, after promoting Walker to a full-time driver position to
his grievance, assigned Walker as a relief driver; it is that action and its subsequent
led to Grievant filing her two grievances. The consequences affecting Grievant were that on
days Walker drove bus at times that would possibly have been offered to other full-time
except for the practice that overtime would only be offered to full-time drivers after relief
were offered the hours. Walker, as a new relief driver, worked hours that Grievant alleges
have worked had Walker not been designated as relief which the Grievant and Union argue
violation of the settlement of Walker's grievance. (Jt. 4)
Again, the pertinent section of the Walker settlement reads as follows:
2. A new "Full-time Utility Person" position will be created
in the Transit System Table of
Organization, classified as a Full-time Bus Driver, effective as of the same date of Mr.
promotion. The duties of this position will be
similar to those duties currently performed
by Part-time Bus Drivers, to include, but not be
Assigned on a weekly basis
to open protection, driving, and miscellaneous assignments after
full-time relief drivers have been assigned.
include snow removal, shelter cleaning, fuel line, bus cleaning, bus
stop sign replacement and similar duties which might be considered "garage" duties that are
within the "Full-time Utility Person's" skills to perform.
The parties began negotiating this settlement in January of
and did not complete the
settlement until July, 2001. From the testimony of the witnesses at the hearing, it is clear
parties were either not listening to each other during these settlement negotiations or even
recognizing their differences, signed the agreement anyway and hoped for the best.
Union witnesses supported its argument that the practice of offering overtime to regular
not to change, Walker was to be promoted to full-time driver status but was to continue to
the same duties he had been performing as a part-time driver as a Utility Person. The City
testified in support of their reading of the settlement negotiations that the only way the City
agree to creating another full-time driver, with increased pay and benefits, was to be able to
Walker to take previous over time hours at straight time. Witnesses for both parties testified
their respective positions were debated or presented consistently throughout the settlement
The positions of both the Union and the City are logical and absent other evidence I
inclined to doubt the creditability of either party's witnesses at the hearing. Therefore, my
will be based on my reading of the Settlement (Jt. 4) and the collective
bargaining agreement. The
City correctly argues that under the labor agreement's management rights clause it has the
determine the Table of Organization for the Transit System and despite the Settlement could
discretion designate another full-time driver as relief. While that is true, and not challenged
Union, by making Walker the fourth relief driver, the City tied its decision to the settlement
Walker's grievance. To find otherwise would ignore the testimony of the witnesses, the two
grievances and the City's response to them. The Transit Director, David Mumma, states in
to Union Business Representative, Jack Adams, responding to the Grievant's two grievances:
We agree that both grievances in question are based upon
grievant's assertion that the
grievance settlement signed and entered into between the City and the Union on July 5,
created the position of "Full-time Utility Person", classified as a Full-time Bus Driver, and
subsequent use of that employee as a relief driver to fill open assignments on regular routes
transit system is in violation of her contractual rights as a Full-time Bus Driver to be offered
work at overtime as provided in Article 5, Section 8 of the Agreement. . . .
It is clear that both parties have agreed that this decision rests on
my interpretation of the settlement
of Walker's grievance and the labor agreement.
The settlement agreement created another full-time driver position and that was
Further, the parties agreed that a full-time utility position was created in the City's table of
organization. While the settlement does not specifically say so, the fact that Walker's
simultaneous with the utility position designation ties Walker to that position; nor does there
to be any dispute that Walker is the employee assigned to that position. Notably and
nothing in the settlement agreement talks about or mentions the creation of a fourth relief
position. Further, the duties of this new position are similar to the duties of a part-time
duties are described in the first two bullets under paragraph two of the settlement which I
out above. The record testimony established that those duties are not performed by regular
drivers including relief drivers. While the City argues that nothing in that description of
Walker from driving relief, certainly nothing in those duties makes that specific. In fact
are described as "miscellaneous" and only occur only after relief drivers are not available.
not read as an intent, let alone an agreement, to make Walker a relief driver. If Walker is
only in the
pool of full-time drivers that only drive after the three current relief drivers are occupied,
Walker's seniority would be involved, and his full-time seniority is less than that of the
Whether or not I agree with the Union's argument that what duties are not stated are
excluded, if I look at the duties this utility position is to perform, which duties are stated as
to a part-time driver, it is difficult from the language of the Walker Settlement Agreement to
language that supports a finding that Walker could drive at straight time hours that full-time
had previously been offered to drive at over time under an accepted past practice and the
language of Article 5.
As the Union submits, in contractual law, unclear drafting is construed against the
this case, the City. I am left to interpret language that contains absolutely no language
creation of a fourth relief driver or Walker being assigned as such or language that would
City increased flexibility to have overtime hours driven by Walker or any other driver at
If this had been such a critical concern to the City, I am left to wonder why was it not made
in the Walker settlement agreement. I do not believe the settlement can be interpreted by me
other manner. And what results is that my interpretation does not change the labor
agreement or the
past practice of the parties. This finding is also consistent with the labor agreement's
rights clause. Therefore, I find that the settlement agreement did not change Article 5 of the
agreement or the parties' practice and Grievant should have been given the opportunity to
overtime hours on August 2, 13, 14 and 15, if available and hours for which she had signed.
effect of this decision also means that Walker cannot be assigned as a relief driver in the
being assigned as a full-time utility person assigned to duties similar to a part-time driver.
As to the first grievance (Jt. 2) for hours
on August 2, 2001, I find that the City did
not have to make the shift changes necessary to make the hours available that Grievant had
she was available for driving extra or overtime hours. Grievant worked a split shift from
to 10:00 a.m., and then from 2:30 p.m. to 6:30 p.m., eight hours.
Grievant had signed to work the
period between her two shifts, four and one-half hours, less one hour for lunch. Grievant
signed for these hours; she seldom, and not in this case, signed for hours after her afternoon
However, Walker had already been assigned to drive a shift that included those hours. To
four and one-half hours that Grievant signed for, the City would have had to assign Walker
shift and then arrange for yet another driver to work the hours of Walker's previously
that Grievant, because of her regular route could not drive. I find that the settlement
parties' practice or the labor agreement did not require the City to modify shifts to give the
the only hours that she wanted to work, 10:00 a.m. to 2:30 p.m. Walker, on
that day was not driving
extra hours, he was driving a full shift. Therefore, I will deny the grievance as to
August 2, 2001.
The second grievance (Jt. 3) concerns hours Grievant signed for on
August 13, 14 and 15.
Grievant signed for the same hours as noted above, the hours between her split shift.
full-time driver was off on workers compensation, there were five hours on each of those
available for extra hours. Walker took the hours on all three days which means this was
for him not, as on August 2, a full assigned shift. The Assistant Transit manager
forthrightly, in his
hearing testimony, agreed that absent the City's interpretation of the Walker settlement
and the assignment of Walker as a relief driver, those hours would have been available to
as overtime hours resulting in Grievant being able to work ten and one-half hours of
those three days. Given my decision above, I will find that the grievance as to
August 13, 14 and 15
will be sustained.
The City argues that after the settlement a job was posted for a relief driver and the
never grieved. I do not find that as any waiver by the Union. As the Union has agreed, the
the right within the limits of the contractual management rights clause to determine the table
organization and the number of relief drivers. The problem here is that the relief job was
and assigned to Walker, contrary to the settlement agreement, (Jt. 4) and was used to
opportunities to full-time drivers. Nothing required the Union to grieve the posting; it
the results of the posting adversely affected the Grievant. I further find that the Grievant's
misstatement of the proper contractual language in her second grievance (Jt. 3) was
overcome by the
City's own clear statement by the Transit Director that the City had notice as to the Union
Grievant's position as to the alleged contractual violation. (Jt. 5)
The City is concerned that a decision in favor of the Grievant and Union will
its management rights. I wish to make clear that this decision is limited to the facts of this
the two grievances involved. I understand that similar grievances are pending; I
have not been asked to decide those cases and whether this
decision is any precedent for those cases
is not my decision. What I have basically done is put the parties back to the practice in
the Walker settlement agreement where both parties should have been more careful in setting
their written agreement.
Based on the record as a whole, I issue the following
The City did not violate the collective bargaining agreement on August 2, 2001
grievance will be denied. The City did violate the collective bargaining agreement on
August 13, 14
and 15 when it denied the Grievant the opportunity to work overtime and that grievance will
sustained. The Grievant, within thirty calendar days of this decision, will be awarded ten
hours of pay at her overtime rate in effect on those dates grieved.
Dated at Madison, Wisconsin, this 7th day of November, 2002.
Paul A. Hahn,