BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF STEVENS POINT
WISCONSIN COUNCIL 40, AFSCME,
AFL-CIO, LOCAL 309
For the City of Stevens Point, Attorney Therese Freiberg and City Attorney
Louis J. Molepske, 1515 Strongs Avenue, Stevens Point, WI 54481
For AFSCME Local 309, Gerald Ugland, P.O. Box 35, Plover,
The City of Stevens Point hereinafter referred to as "Employer" or "City," and
AFSCME, AFL-CIO, Local 309, hereinafter referred to as "Union," are parties to a
bargaining agreement covering a period from January 1, 1999 through December 31,
its terms, the agreement renews itself from year to year thereafter unless either party notifies
in writing that it desires to alter or amend said agreement. On a form dated February 5,
received by the Wisconsin Employment Relations Commission on February 7, 2001, the
a request with said Commission for a 5-person panel of WERC commissioners/staff
which the parties could select a person to hear and decide the grievance that had arisen
parties. Commissioner A. Henry Hempe was selected by the parties from the panel
provided and was
subsequently appointed by said Commission to hear and decide said dispute. A hearing was
July 31, 2002. The hearing was not transcribed. The Employer filed an initial brief
August 26, 2002 and a reply brief received on September 23, 2002; the Union filed an initial
received on August 28, 2002 and filed no reply brief.
STATEMENT OF THE ISSUE
The Union proposed the following Statement of the issue:
Did the Employer violate the Collective Bargaining
when the Director of Parks
and Recreation, Tom Schrader, performed a maintenance task on July 28, 2001? If so, what
The Employer proposed the following Statement of the issue:
Did the Parks Director properly exercise his managerial
discretion in responding to an after-hours call on July 28, 2001? If so, what is the proper
I adopt the following Statement of the issue:
Did the Employer violate the Collective
Bargaining Agreement when the Director of Parks
and Recreation unplugged two city park toilets on Saturday, July 28, 2001? If so, what is
FACTS OF THE CASE
The grievant, Ron Check, has been employed by the City of Stevens Point for almost
years. Originally hired as a bus driver in December 1994, Mr. Check transferred to the
and Recreation Department as a Park Custodian one and a half years later. He has remained
department to date. In 1998 Mr. Check transferred to the position of mechanic; in 1999 he
a Grounds and Maintenance Handyman, a slot in which he has remained to the present.
Mr. Check's normal workweek consists of eight hours per day, forty hours per week,
through Friday. On Saturday July 28, 2001, Mr. Check received a phone call at his home
concession stand vendor for a local softball association that was sponsoring a tournament in
the City's recreation areas, Zenoff Park. The vendor told Mr. Check that both toilet stools
park's public men's room were plugged and had flooded. She said there was water all over
and requested Mr. Check to remedy the situation.
Both parties agree that Mr. Check's response was appropriate. He indicated that he
be glad to accede to the request, but needed to be directed to do so by one of his
Tom Schrader or Scott Halvorsen. Mr. Schrader has been the Parks and
Recreational Director since 1986; Mr. Halvorsen has been the Park Maintenance
Supervisor for about
two years. Mr. Check provided telephone numbers of the two men to the concession stand
Although Mr. Check remained by his phone for the next hour, he received no call from
When Mr. Check returned to work the following Monday, he happened to encounter
concession stand manager that had called him the previous Saturday. She told him that she
Tom Schrader as Mr. Check had suggested. Mr. Schrader, she said, consequently appeared
distressed men's room and corrected the problem. Mr. Schrader, himself, later told Mr.
he (Schrader) had unplugged the toilets, but offered no immediate explanation to Mr. Check
why he (Check) had not been called in.
When Mr. Schrader had been contacted by the concession stand vendor he
to the park. He was initially unable to locate any seasonal workers assigned to softball
maintenance duty. (He later learned they were preparing another diamond at another City
Schrader did visually verify that both stools in the men's room were plugged and that the
overflowed. He also examined the interior of the toilet tanks, and confirmed that all parts
to be in good repair and able to be operated. While he was visually assessing the situation,
male entered the facility and wanted to use one of the stools. Mr. Schrader was successful
temporarily deflecting the visitor from the immediate use to which he proposed to put one of
Since Mr. Schrader continued to be unaware of the location of the seasonal park
was aware of the location of a toilet plunger on the premises, he got the plunger out and
to use it on one of the plugged stools. He experienced almost immediate success, and the
became unplugged. Buoyed by this result, Mr. Schrader took similar action on the second
Again he was successful almost immediately. As he was leaving the men's room, the
maintenance crew of seasonal workers showed up and its members explained they had been
on another diamond.
Mr. Schrader testified that if a seasonal employee had been present a few minutes
would have assigned to him the toilet plunging duty that Mr. Schrader ultimately performed.
Check, said Mr. Schrader, would have been called in only if "the chain or the guts [in the
been broken." Mr. Schrader estimates his entire portal-to-portal time was no more than
hour. He was able to clear each plugged toilet in less than a minute each. Mr. Schrader
additional compensation for his Saturday services.
The public restroom facilities at the softball tournament site consist of a men's room
stalls and ten urinals and a women's room with ten stalls. Any water that overflows in the
room will drain either into the urinals or out the door. Approximately twenty steps to the
these facilities is a city office building that contains a generic toilet facility. Although that
is normally not open on weekends, Tom Schrader has a key to
the building. Three other persons, all connected to the softball association, also have
keys to the
building. The softball association is permitted to use the building as a headquarters for its
umpires. Because of the building's use by the umpires, the softball association is reluctant to
the building's limited bathroom facilities for use by members of the public.
The information Tom Schrader had received from the concession stand vendor
only her description of the plugged toilets problem, but also her report that there was no one
available to remedy the situation. She specifically indicated that she was unaware of the
of the ball-diamond crew and, further, that the softball association president was engaged in
then being played. In the past, either seasonal employees of the City assigned to work as a
ball-diamond crew or softball association officials, or both have called upon to alleviate
It is undisputed that Mr. Check has a plumbing background, and has been called in to
appropriate repair action on bathroom or toilet fixtures after seasonals have tried and failed.
aware of the location of the toilet plunger at the softball diamond men's room. Unplugging
toilets is a task that has been performed by Mr. Check in the course of his duties in the past.
Although the seasonal workers are employees of the Parks Department, they are
of the bargaining unit. Two bargaining unit members called as witnesses by the Union could
recall if seasonal workers had unplugged toilets in the past. Tom Schrader, however, was
in asserting that seasonal workers, as well as softball association members, have performed
The Union acknowledges that seasonal workers have access to ". . . a plunger, a
clean toilets." Under the heading "Tasks Routinely Performed," the Position Description for
classified as "General Maintenance (seasonal)," includes "(j)anitorial work in indoor and
recreation facilities and areas." However, according to Mr. Check, in some cases the
seasonal workers (or softball association personnel) to unplug the toilets have been
the problem remained unresolved until Mr. Check dealt with it when he came to work the
Mr. Check doesn't recall if he has ever been called in on a softball weekend to
unplug a toilet.
He states that if he had been called in to remedy the park men's room toilet problem on July
consistent with his practice when he had been called in to deal with other problems in the
would have simply thrown some tools in his own vehicle and driven to the park. He would
detoured to pick up a shop truck. Mr. Check explained that prior to working for the City, he
operated a "handyman" business; hence, he always has "handyman's tools" at his home.
Mr. Check estimates that the park men's room problem on July 28 would have
45 minutes. He believes that plunging a plugged toilet is semi-skilled manual labor. Mr.
his current supervisor live about the same distance from Zenoff Park.
Finally, the Union cites a grievance settlement in 1997 as material. In that instance,
Schrader acknowledged that he had assisted bargaining unit members in assembling
equipment during regular weekday hours of work, and agreed to ". . . cease and desist" from
any bargaining unit duties in the future.
Section 1 Recognition
The employer recognizes the Union as the
exclusive collective bargaining representative for all
regular full-time and regular part-time employees of the Department of Public Works and
of Parks, Recreation and Forestry, except the Director of Public Works, Street Supervisor,
of Parks, Recreation and Forestry, Assistant Street Supervisor, Park Supervision, Recreation
Facilities Supervisor, clerical and administrative aides, summer, season and temporary
Section 2 Management
A) The City possesses the sole right to
operate City government and all management rights
repose in it, subject only to the provisions of this contract and applicable law. These rights
but are not limited to the following:
1. To direct all operations of the City;
2. To establish reasonable work rules and schedules of work;
3. To hire, promote, transfer, schedule and assign employees;
4. To suspend, demote, discharge and take
other disciplinary action against employees for
5. To layoff employees
from their duties because of lack of work or any other legitimate
6. To maintain
efficiency of City government operations;
7. To comply with state
and federal law;
8. To introduce new or
improved methods or facilities;
9. To change existing
methods or facilities;
10. To determine the
kinds and amounts of services to be performed as pertains to City
government operation; and the number and kind of classifications to perform such
11. To contract out for
goods and services; however, it will be the policy of the City to
first consider the impact on the employment security of its employees as the result of any
such action and to notify and confer with the Union prior to taking such action;
12. To take whatever action is
carry out the functions of the City in
situations of emergency.
Any unreasonable exercise or application of these management
rights by the City shall be
appealable by the Union or an employee through the grievance and arbitration procedure.
It is further agreed by the City these
management rights shall not be used for purposes of
undermining the Union or discriminating against any of its members, and the Union agrees
clause shall not be used to harass the City.
. . .
Section 12 Overtime
B. All work
performed on a Saturday or Sunday shall be paid at time and one-half (1 ½) . .
. . .
E. Call-In Pay. In addition to
"B" and "C" of this Section, any employee called into work
outside of his/her normally scheduled hours, and who actually reports to work, shall receive
hours straight time pay . . .
POSITIONS OF THE PARTIES
Plunging toilets is one of Ron Check's job duties, the Union asserts, although other
unit members also perform this duty. It is not, however, one of the position responsibilities
Director of Parks and Recreation, according to the Union.
Although the Union states that Mr. Schrader found fecal material on the floor and
away one potential user of the facility, the Union argues there was no imminent danger of
damage since any overflow from the stools would be channeled to the urinals (or out the
door as a last resort.) Moreover, says the Union, the ladies' lavatory and toilet facilities in
adjoining building were also available for use by male patrons.
The Union notes that Mr. Check and Mr. Schrader each live about the same distance
The Union contends that Mr. Schrader's toilet plunging also violated the terms of a
settlement dated October 16, 1997. The grievant(s) had complained that by assisting them in
together some playground equipment Mr. Schrader was performing bargaining
unit work. The grievance was settled when Mr. Schrader agreed, in writing, that " . .
. I will cease
and desist doing any of your [bargaining unit] duties." The Union emphasizes that the
"any" is unqualified. The Union acknowledges, however, Mr. Schrader's belief
". . . that the 1997
grievance settlement does not address 'call-in' work." The Union concedes that apart from
instant matter it is aware of no other instance of Mr. Schrader performing bargaining unit
besides the activity that prompted the Union's 1997 grievance..
The Union further argues that the usual process for call-in was not used. According
Union, the normal processes for after-hour calls provide that bargaining unit employees be
after on-duty staff and softball association personnel had been considered. Nowhere do the
procedures, even those set forth in "Parks Department After-Hours Emergency Call-In
contain a provision allowing a manager to perform the work, even in the case of an
According to the Union, the managers are called by the police department to assess the
Once the assessment is made a union employee the manager should then call in the most
bargaining unit employee that normally does the work. This was described by a bargaining
witness, the Union notes, and claims this description is consistent with that offered by Scott
The Union believes a portion of the testimony of Scott Halvorsen supports its case.
Specifically, the Union noted Mr. Halvorsen's statement that he would not call in Mr.
unplug toilets and that unplugging toilets is not a normal part of Mr. Schrader's duties. "For
toilets," says the Union, "Halvorsen would call Check or Krutza [a senior bargaining unit
if there were no other employees on duty at the time."
The Union believes it is "unclear" that softball association members or seasonal
unplug toilets. Again, relying on the testimony of Scott Halvorsen, the Union argues that 1)
Halversen is not aware of the association unplugging toilets, and 2) is not aware of the
or seasonal employees " . . . having access to more than a plunger, a 'worm' to clean
The Union discounts Schrader's testimony that the president of the association has
association members have unplugged toilets as hearsay, and suggests it be given no weight.
The Union emphasizes Check's testimony that on many Mondays following softball
association games he has been greeted by "locked toilets" with a sign that says "out of
The Union argues that "(u)nplugging toilets is something that seasonal employees
been able to do successfully and that Mr. Check has been called to complete the duty."
according to the Union, "unplugging toilets is semi-skilled work."
The Union contends that the toilet facilities in the adjoining building could have been
but that this option just did not occur to Mr. Schrader. The Union also admonishes
Mr. Schrader for
failing to open the women's room for use by male park patrons.
The Union is also critical of Mr. Schrader's view that the 1997 grievance settlement
address call-ins. The written settlement doesn't exclude "call-ins," according to the Union,
clearly it was intended to apply to all bargaining unit work. Since, according to the Union,
toilets is bargaining unit work, Mr. Schrader should not have used that plunger in the Zenoff
men's room. The Union notes Mr. Schrader's statement that park custodians and
females plunge toilets, but points out that Mr. Schrader did not say he actually witnessed
The Union believes the 1997 grievance settlement is explicit. The Union defines the
"your duties" as "bargaining unit work," and continues to assert that an employee in the
that normally does the work should have been called.
The Union reiterates its contention that "(t)here is reason to question whether the
on-duty staff plunges toilets on weekends since they are often left until Monday." The Union
questions whether the softball association has accepted that responsibility, since some toilets
found plugged on Monday mornings. There is, however, no doubt in the mind of the Union
is the duty of the custodial and maintenance staff to attend to this duty."
As for relief, the Union agues that Mr. Check should receive two hours of his normal
pay as call-in time as provided by the parties' labor agreement, in addition to time and
normal rate of pay as is also provided by the parties' labor agreement for the 45 minutes of
estimates it would have taken him to respond to the call-in, portal-to-portal.
The City asserts that the work performed by Mr. Schrader is not bargaining unit
City contends that while the grievant could have been called-in if the toilet problem had been
serious, he would not have been called-in for a simple toilet-plunging.
The City cites Cleveland Electric Illuminating Company, 105 LA 817 (Franckiewitcz,
Stevers, Boyle, 1995) as illustrating the factors the City believes should be examined in
bargaining unit work. Under this case, those factors are "whether in the past work had been
performed exclusively by bargaining unit employees; whether layoffs, displacement from
jobs, or loss
of pay to employees resulted from the transfer of work; the effect on the bargaining unit; the
of work involved."
The City contends that the most relevant factors of this case are that 1) the quantity
or the effect on the bargaining unit is de minimus in nature and 2) that
plunging toilets is not work
exclusively performed by bargaining unit employees.
The City states there is no past practice establishing that plunging toilets is a task for
Mr. Check has been called-in. There is no language in the parties' labor agreement that
call-in for such a task, the City avers. Moreover, the City adds, the Union has failed to
show that the
purported past practice is unequivocal, clearly enunciated, acted upon, and readily
a period of time as a fixed and established practice. The City believes that it, on the other
demonstrated the existence of a past practice establishing that plunging toilets at the park is
exclusively bargaining unit work.
In conclusion the City reiterates its view that the toilet plunging work performed by
Schrader on July 28 was de minimus and not exclusively bargaining unit work.
decision to try quickly to remedy the plugged toilet situation with a plunger was a
decision he was entitled to make under the parties' labor agreement and was made in good
The City urges the grievance be dismissed.
The City disagrees with the Union's contention that the plugged toilets offered no
danger to property and that male patrons should have been allowed to use the women's
those in the nearby office building. The City justifies Mr. Schrader's action in plunging the
proper, for it allowed immediate use of one of them by a male patron.
The City notes there were approximately 300 persons attending the softball
argues that under this circumstance opening the women's rest room to males without
"needs no further comment," and allowing patrons to use a secured office area without
"simply isn't acceptable."
Responding rapid-fire to other Union contentions, the City finds immaterial whether
Schrader and Mr. Check live approximately the same distance from the park; that the 1997
resolution that involved the assembling of playground equipment is simply not comparable to
plunging a toilet in an emergency type situation; that the only call-in system in effect is one
required that supervisors such as Scott Halversen or Tom Schrader be called, and that
Mr. Schrader testified seasonal employees and [softball] association members had unplugged
and the fact that other persons who testified weren't aware of this doesn't render Mr.
The City concludes its rebuttal by characterizing the grievance as frivolous. The City
the work performed by Mr. Schrader is not exclusively bargaining unit work and was
His decision to remedy the situation by the action he took was made in good faith and was
consistent with the parties' labor agreement, according to the City.
The Union filed no rebuttal argument.
The Union contends that the grievant was improperly deprived of bargaining unit
City Parks and Recreation Director Schrader unplugged two toilet stools in a city park men's
While no contractual provision specifically identifies unplugging toilets as "bargaining unit
the Union argues that since the grievant and other bargaining unit members have unplugged
toilets from time to time in the past, Schrader's efforts violated a 1997 grievance settlement
Schrader had pledged to "cease and desist doing any of your [bargaining unit] duties."
At first blush, the City's characterization of the Union's grievance as "frivolous" may
apt to some, particularly in view of the relatively small fiscal relief that is in issue. Under
scrutiny, however, the issue presented by this grievance is one that features fundamental
the parties in apparent competition.
To the Union, preservation of what it regards as bargaining unit work is reflective of
traditional Union value. While not necessarily insensitive to this interest, the Employer is
greatly concerned with what it regards as its interests of efficiency and economy.
Since each interest is presumptively both valid and reasonable on its face
indeed, under some
circumstances may even be mutually shared by the parties deciding this matter by
one interest over the other is both arbitrary and inappropriate. The case outcome, instead,
governed by well-established arbitral principles and application of those principles to the facts
For the Union to prevail, it must demonstrate that the alleged bargaining work is
exclusive jurisdiction of the Union. See Consolidated Coal Co., 111 LA 587, 591 (Jenks,
It is not enough that on some occasions bargaining unit employees have been required to
work in question, if the work is also performed by non-bargaining unit personnel. Thus, if
is sometimes performed by bargaining unit employees and sometimes performed by persons
the bargaining unit, the work cannot be considered bargaining unit work. See Sloan Valve
Company, 68 LA 479, 480 (Cohen, 1977).
There is no question that the Union is correct in its contention that the duties of
Grievant Check have included unplugging city park toilets. Although the Union
skepticism that seasonal employees (who are not members of the bargaining
unit) have plunged park
toilets in the past, neither can that fact be in serious doubt.
The Union urges that Mr. Schrader's testimony as to the past efforts of softball
members to unplug toilets be disregarded as uncorroborated hearsay. But even if Schrader's
testimony as to softball association members is not considered, the grievant's own testimony
acknowledged his (the grievant's) awareness of instances where seasonal employees had
to unplug toilets. 1/ In addition, the Union credits and accepts the testimony of Mr.
seasonal employees have access to toilet plungers and "worms."
1/ Mr. Check cited instances where seasonal
employee efforts to unplug park toilets had been unsuccessful and
that he (Mr. Check) had had to complete the task when he returned to work on
Under these circumstances, it is difficult to avoid the inference that the Union was
persons outside the bargaining unit were at least attempting to unplug toilets by using a
possibly a "worm") on them. There is, however, no record of the Union having ever
attempted performance by seasonal employees of what the Union now claims as exclusive
Moreover, the job description of these seasonal employees specifically includes
work in indoor and outdoor recreational facilities and areas," (but does not require any
plumbing expertise). The use of plungers or "worms" seems to fall quite easily in the
"janitorial services." Again, however, there is no record that the Union ever attempted to
"toilet plunging" from the janitorial services the seasonal employees might be required to
The Union argues that unplugging toilets is semi-skilled work, and bases this
its assertion that seasonal employees have been unable to perform this task successfully.
assertion seems overly broad, however, for the record is silent as to the success rate
seasonal employees in their efforts to unplug toilets.
What does emerge and seems helpful is that seasonal employees have been limited in
"unplugging" efforts to the use of toilet plungers or "worms." On at least some occasions
knowledge and experience may not have proven adequate to the task. It is at that point,
perhaps, but nonetheless recognizable, that the work of unplugging
toilets may become not only at least a semi-skilled activity, but also bargaining unit
work that requires
the plumbing knowledge and experience of the appropriate bargaining unit member. 2/
2/ This may describe
some, if not all, of the instances to which Mr. Check referred in Note 1,
A plunger, of course, is the sole tool used by Mr. Schrader
June 28 and his successful
efforts were of extremely short duration. Indeed, what Schrader did does not appear to have
any more than what many private householders, untrained in even plumbing semi-skills, are
and able to do for themselves when they experience a plugged toilet or sink drain in their
The Union notes that the grievant and Schrader live approximately the same distance
Zenoff Park and that the grievant would not have had to first obtain a City vehicle or City
report to the park. Presumably, the Union makes the point that the grievant could have
arrived at the
problem-site as quickly as did the Parks and Recreation Director. That is undoubtedly true.
since the work performed by Schrader was not exclusively under the Union's jurisdiction,
that is not
a material factor in the analysis of this issue.
Finally, the Union argues that the usual call-in procedure was not used in this
instance, in that
nowhere does the procedure direct managers to do the required work. If, however, the work
performed is not under exclusive Union jurisdiction the Employer is free to have the work
in whatever manner it deems appropriate, including the temporary utilization of a managerial
The City suggests other factors be considered in addition to whether or not the work
question was exclusively under the jurisdiction of the Union. Citing other arbitral authority,
lists those factors as including whether the activity has caused any employee layoffs or job
displacement, loss of pay to the employee, the effect on the bargaining unit and the amount
involved. 3/ However, I do not find consideration of these factors necessary to resolve the
presented by this case and therefore withhold comment on them.
3/ Cleveland Electric Illuminating Co., 105
LA 817 (Franckiewicz, Stevers, Boyle, 1995). This case
involved the permanent reassignment of duties previously performed by a retired bargaining
unit member to non-bargaining unit personnel.
Based on the foregoing and the entire record of this matter, in
my opinion the Employer did
not violate the Collective Bargaining Agreement when the Director of Parks and Recreation
unplugged two city park toilets on Saturday, June 28, 2001.
Accordingly, the grievance is dismissed.
The grievance is dismissed.
Dated at Madison, Wisconsin, this 12th day of December, 2002.