BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SUPERIOR CITY EMPLOYEES' UNION
LOCAL #244, AFSCME, AFL-CIO
THE CITY OF SUPERIOR
Mr. James Mattson, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, 8480 East
Bayfield Road, Poplar, Wisconsin 54864, appearing on behalf of the Union.
Ms. Mary Lou Andresen, Human Resources Director, City of
Superior, 1407 Hammond Avenue,
Room 200, Superior, Wisconsin 54880, appearing on behalf of the City.
The Superior City Employees' Union Local #244, AFSCME, AFL-CIO ("the
City of Superior ("the City") are parties to a collective bargaining agreement which provides
and binding arbitration of disputes arising thereunder. The Union made a request, in which
concurred, that the Wisconsin Employment Relations Commission designate a member of its
hear and decide a grievance concerning the meaning and interpretation of the terms of the
relating to call-out assignments. The Commission appointed Stuart Levitan as the impartial
Hearing in the matter was held in Superior, Wisconsin on June 26, 2002; it was not
parties filled written arguments and replies, the last being received on October 15, 2002.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The union states the issue as follows:
Did the Employer violate the terms of the collective bargaining
agreement (Article 19.04) and
long standing past practice when it called out less senior employees before senior qualified
And if so, the appropriate remedy is to
make the Greivants whole for any and all lost wages and
benefits and the Employer be directed to cease and desist from calling out less senior
before more senior and qualified employees.
The city states the issue as follows:
Did the city violate AFSCME Local 244 collective bargaining
agreement by not calling out the
grievants (A. Miller, M. Peters, and K. Krause) to work on Wastewater Treatment Plant
collection system emergencies?
I state the issue as follows:
Did the employer violate the terms of the collective bargaining
agreement by not calling out more
senior employees in April and May 2001? If so, what is the remedy?
. . .
The City possesses the sole right to operate the City Government and all
rights reside in it, subject only to the provisions of this Contract and applicable law.
These rights include:
A) To direct all operations of the City.
B) To establish work rules and
schedules of work.
C) To hire,
promote, schedule and assign employees to positions with the City.
. . .
F) To maintain efficiency of City
G) To take
whatever action is necessary to comply with State or Federal law.
. . .
J) To determine the methods, means
and personnel by which City operations are
to be conducted.
K) To take
whatever action is reasonably necessary to carry out the functions of
the City in situations and emergency.
. . .
19.04 Should it be necessary to
require overtime that working day, employees on duty when
the decision to work overtime is made shall be entitled to work said overtime regardless of
In the event thatovertime is to be scheduled, employees will be called
to work such overtime work
according to seniority rights, provided such employees are qualified to perform the work
For purposes of overtime call out only, the Wastewater Treatment Operations Division and
Wastewater Treatment Collections Division seniority lists will be combined (for example: On
call-out, after all collections division employees have been called, all qualified operations
employees must be called prior to going unit-wide). A senior employee who was not
given priority on such scheduled overtime jobs and therefore does not work such job, may
grievance to receive pay for the number of hours worked by a junior employee. Said
be filed before the end of the next working day. An employee who does not answer a
who answers by a telephone answering machine, or does not accept work when contacted
considered unavailable for each instance requiring overtime. The other provisions of this
notwithstanding, any employee who has worked sixteen (16) continuous hours shall not work
receive pay for the next eight (8) consecutive hours.
A Wastewater Treatment Plant employee
cannot be called for overtime if he/she has called in for
his/her own illness within the last 12 hours, unless there is a declared emergency.
. . .
19.06 Employees of the Wastewater
Treatment Operations Division will be offered overtime
within their respective classification. Example: When overtime is needed to fill an operator's
the overtime will be offered to the most senior operator and progress down the seniority
through the relief operators. When overtime is needed to fill a relief operator's position, the
will be offered to the most senior relief operator. If personnel within the classification are
interested in the overtime, the overtime would be offered to the next senior, qualified
This grievance involves the process the city used in calling out supplemental
respond to weather-related emergencies affecting the sewer system in the early spring of
The City's Wastewater Treatment Plant Division (WWTP), a part of its Public Works
Department (DPW), has two divisions, Operations and Collections. When flooding
after normal hours, Collection Systems personnel (the "sewer crew") are called in first, by
If additional personnel is required, qualified employees of the Operations unit are called next,
by seniority, followed by qualified employees on the unit-wide seniority list.
The grievants are permanent full-time employees of the city's Parks and Recreation
of the Public Works Department. They grieve over the city's decision to call a junior
employee for WWTP overtime in April and May, 2001, rather than them.
The federal government, through its Occupational Safety and Health Administration
and its National Institute of Occupational Safety and Health (NIOSH) has established
guidelines for the training and qualifications for personnel working in confined spaces such
entryway to a sewer system. The introductory paragraph to OSHA standard 29 CFR
Sewer entry differs in three vital respects from other permit
entries: first, there rarely exists any
way to completely isolate the space (a section of continuous system) to be entered; second,
isolation is not complete, the atmosphere may suddenly and unpredictably become lethally
(toxic, flammable or explosive) from causes beyond the control of the entrant or the
third, experienced sewer workers are especially knowledgeable in entry and work in their
spaces because of their frequent entries. Unlike other employments where permit space entry
is a rare
and exceptional event, sewer workers' usual work environment is a permit space.
As part of its Human Resources Policies and Procedures manual, the city has
HRP 2006D, Confined Space Entry Program, "developed and implemented in conformance
DOC 32 Subchapter VI and Title 29 CFR part 1910.146." This program, consisting of
20 pages of protocols, affects all fire service employees involved in rescue operations, the
professional, operations and collections unit personnel of the wastewater treatment plant, and
"Building and Grounds Crew employees when assisting the Sewer Crew only."
notwithstanding, an employee of the Parks and Recreation division of the DPW who sought
placement on the unit-wide seniority list for WWTP overtime call-out is governed by HRP
The policy mandates that "(o)nly City designated employees will enter permit
states that "this written program is available for inspection by employees and their authorized
representatives via HRD and the Wastewater Treatment Division of the Public Works
For contractors and other outside companies performing services, HRP 2006D
Contractor Notification appendix, which reads as follows:
The City of Superior Wastewater Treatment Plant has adopted
policies and procedures that will
maintain compliance with OSHA's regulations and standards. According to these guidelines,
contractors and outside service personnel who perform work must be notified in writing of
Confined Space Program. We must also be informed of the Confined Entry Policy to be
by the contractor or outside service personnel and agree to comply with their safety
No one may enter a confined space without
proper training. If more information is needed
regarding Confined Space rules and regulations please contact our Safety Coordinator, Diane
Thompson. The Confined Space Program is located in Diane's office.
Attached is a summary of the major points
of our Confined Space Program. Upon completion
of a confined space entry, the back of the summary form must be completed and returned to
WWTP staff for evaluation.
Appendix D to HRP 2006D, the Summary of the Confined
Space Entry Policy, includes 18
items, the first of which is "All workers working in an around confined spaces must be
confined space entry procedures, first aid and CPR."
HRP 2006D also provides that the Human Resources Department "shall develop and
administer an effective Confined Space Program," and "will coordinate Confined Space
basic first-aid and adult cardiopulmonary resuscitation (CPR) training programs for all
with designated confined space responsibilities." (emphasis added)
As of the time of the grievances, the city provided CPR training for its WWTP
did not offer such training on a city-wide basis.
On October 3, 2000, city DPW employee John Krivinchuk filed a grievance, alleging
city violated section 19.04 of the collective bargaining agreement by calling out a seasonal
for overtime work on a wastewater collection matter. On December 11, 2000, Mayor
replied to Mike Rainaldo, the union's Chief Steward, as follows:
Pursuant to our meeting on Tuesday, November 21, 2000, this is
to confirm that the City and the
Union wish to resolve this grievance. We agree that based on the circumstances of
qualified operators for the Wastewater Treatment Sewer Crew emergency call out, we need
steps to insure that qualified operators are available. I will be recommending to the Human
Resources Committee that the grievance and matter be resolved by the City agreeing to,
next 6 months, make available to interested employees who signed up for the emergency call
training in confined space entry, equipment orientation, record keeping and general safety
that would make them qualified for call out.
In addition, the Union has agreed on an
interim basis, waive the section of Appendix C under
Seasonal Employees that would not allow them to operate medium equipment. I will
the HRC that the City agree with waiving this provision on a one-time, non-precedent setting
Dana Stone, a seasonal employee who is qualified to perform the required functions, may be
medium equipment operator rate until the training can produce qualified operators.
John Krivinchuk and the Union agree to
drop the grievance in exchange for Dana Stone being
paid the appropriate equipment operation (sic) rate for the period in question.
I trust this is your understanding also. This
matter will be placed on the HRC December 18, 2000
agenda for consideration. If you have any questions or concerns, please do not hesitate to
On December 14, 2000, Rainaldo replied to Kotter as follows:
Your memorandum dated 12-11-00 has been received and was
discussed at our recent Local 244
Union Meeting. After closer scrutiny of the facts discussed at that meeting as well as some
feedback from the employees in particular the WWTP employees, the membership feels that
discussion is needed before a settlement can be reached.
Of particular concern was the feeling that
management at the WWTP is and has been dragging
it's (sic) feet on training required. They feel this issue has been discussed before and there
ample time for training. More specifically, the Confined Entry training was also discussed
and it is
our contention that this could be done almost immediately through scheduling with the fire
department and Diane Thompson at the WWTP. Jim Rigstad does the SFD training and in
utilized the WWTP facility for a portion of their training. In addition, we want to further
requirements of re-certification that are required for confined entry rescue as opposed to
working in confined entry. Last but not least, with some creative scheduling, why can't our
employes familiar with the specialized equipment perform on the job training for other
interested in signing up for the call out?
It is our hope that you will be open to the
idea of further discussions on this grievance in
attempting to reach a settlement. If so, please schedule a meeting at your earliest
thanks for your time!
The record does not reflect what action, if any, the Human
Resources Committee took on the
proposed settlement as discussed in the Kotter memo.
The issue of training for WWTP call outs was a topic for discussion at the Public
Labor/Management Committee of January 18, 2001. The minutes for that meeting state as
1. Draft memo regarding training for collection
system work and steaming work was distributed
which included call out list of divisional personnel.
2. The question was raised as
to whether confined entry training was required for steamer work.
This question was deferred to Dan Romans and Diane Thompson. Mike Beattie suggested
that it would be easier if all personnel were confined entry trained, since this was one of
requirements to perform collection system and steamer work. Vactor training and
would be offered to as many people as possible. It will be difficult to have everyone on the
call out list get the required training of 8 hours every 2 months.
3. It was suggested that the call out list for collection
system work title be changed to "Vactor
Jetter Call Out List."
4. It was asked if CPR/Medic
First Aid training is required for confined entry certification. Also,
are there any certification requirements under the state boiler operator rules? Dan and/or
Mike would follow up on this.
The minutes also show "WWTP sewer call out training" to be
topic for discussion at the
committee's February meeting.
On several days in the early spring of 2001, flooding conditions occurred in the city
required immediate response from WWTP crews. Following the call out of WWTP
operations unit personnel, the WWTP determined that no permanent full-time DPW
the necessary qualifications and credentials. Accordingly, a seasonal employee, Dana Stone,
awarded the overtime opportunities. The union does not dispute that Stone had the necessary
certifications and qualifications.
On April 9, permanent full-time employee Chuck Miller filed a grievance, alleging
that the city
violated Article 19.04 by assigning the overtime hours on April 7 and 8 to Stone. On April
Peters filed a similar grievance, for overtime hours assigned on April 22. On May 7, Kim
a similar grievance for overtime hours assigned to Stone on May 5 and 6. All three
that a junior employee was called before a more senior employee, and sought that the
made whole. The grievances were consolidated and are the subject of the current
As of March, 2001, Krause and Peters had completed the requisite training for
entry, steamer operation and safety, and Vactor operation and maintenance. As of the date
grievances, they did not hold current First Aid/CPR certification. 1/ Krause
1/ Miller was not
available at hearing. Based on unchallenged representations by the parties, it appears Miller
had completed the requisite
operational training as Krause and Peters, but lacked current certification in both First
Aid/CPR and Bloodborne Pathogens.
testified he had taken CPR training as offered by the city in the late 1980's, but that he
no indication from the city his certification had lapsed and thus was surprised to learn that
case. Peters testified he had taken CPR training in April 1996, but that he was unaware of
such certification was valid, and that nobody from the city had told him his certification had
On April 24, 2001, WWTP Administrator Dan Romans replied to Miller and Peters
Your grievance alleges that Article 19.04 of the working
agreement was violated and further
states that "Junior seasonal employee called our for overtime before full time certified
entry-steamer-Vactor) senior employee." It is true that a seasonal employee was called our
overtime to perform sewer work for the wastewater collection system. The process operator
followed wastewater divisional seniority but was not able to contact a qualified operator for
Vactor/Jetter. Unit wide seniority cannot be posted without the consent and certification of
participating Local 244 employees. For safety and contract purposes we cannot qualify an
until such steps have been taken. Therefore the only available qualified Local 244 member
seasonal employee. This person was called out as an alternative to calling out a contractor to
to this public emergency.
I do not find a violation of Article 19.04 as
you suggest. Management followed the Working
Agreement. All qualified Local 244 employees were called out and the only qualified person
At our grievance meeting on November 21,
2000 we discussed the issue of providing training
to interested unit wide employees as an alternative to contracting of services when
division employees were not available to work. We estimated the time frame required to
training for confined entry, steaming and safe Vactor operation would take approximately 6
to complete. As of today's date we have completed training and we are waiting for
Local 244 employees regarding their sign off consent sheets before we can post the unit wide
seniority list. A list of the discrepancies has been forwarded to Human Resources. I ask, in
of labor-management cooperation, that Local 244 leadership might help us in completing this
If you are not satisfied with this decision,
you may proceed to the 2nd step in the grievance
process. In the event that you have other concerns, I will make myself available to answer
questions that you may have.
On May 10 and 11, 2001, Miller, Krause and Peters took and
satisfactorily completed CPR
training as offered by the city. Miller had previously completed the Bloodborne Pathogens
certification on April 23, 2001.
On May 21, 2001, Romans gave the same response to Kim Krause regarding his
of May 7, 2001.
On June 18, 2001, WWTP manager Eric "Ranger" Robert posted the following
Re: Call outs for basement sewer back-ups
Effective today contact the following
people after you reach Bryan Dunaiski on the call out
These people would be able to be used as
Ride Along Personnel on the Vactor/Jetter unit.
After these people are contacted then Dana
Stone can be called if necessary. Document the
response of these people on the "Master Seniority Call Out List for Vactor Ride Along
If you have any questions contact Mike Beattie or me.
On July 19, 2001, Mayor Kotter wrote to Chuck Miller,
244 President, as follows:
First I want to apologize for the length of time required to
complete my response to you. With
vacations and staff away, we were not able to document the First Aid/CPR training date to
whether the individuals were actually qualified as of the date of the grievance, even though
did not reflect the qualifications had been met.
According to our records, the three
individuals were not qualified as of the date they filed the
grievance. Below is listed the courses lacking and the dates they were certified.
Name Grievance Course Date Certified
Chuck Miller 4.7-8 Bloodborne Pathogens
First Aid/CPR 5.10.01
Mick Peters 4.22 First Aid/CPR 5.11.01
Kim Krause 5.5-6 First Aid/CPR 5.11.01
The prior training for First Aid/CPR was
given on October 30 and 31, 1997.
This training is valid for two years and
would have expired on October 29 and 30, 1999.
Therefore, the employees would not have been qualified as of the date of their grievance.
Based on the facts I must deny your
grievances. If you wish to advance these to the next step
of the grievance procedure, you must do so by filing with the Human Resources Committee.
that the call-out list information on individuals is now up to date and the individuals are now
to be called out after the Wastewater Treatment Plant employees have been called out.
On August 20, 2001, the HRC meet to consider the
As reflected in the
committee's memo of September 10, 2001 to Local 244 President Miller, "Motion by
seconded by Clark, to deny the grievance, the required training not completed by the
was established by the State. APPROVED."
Subsequent to the HRC's denial of the grievances, the union submitted its request to
WERC for grievance arbitration.
On February 1, 2002, county Human Resources Director Mary Lou Andresen wrote
244 business representative Jim Mattson as follows:
Attached you will find copies of the OSHA and NIOSH standards
for working in confined
spaces. Also find the City's policy on confined entry. Please note in the City's policy and
standards that first aid and CPR are required along with confined entry training. In the case
of the three grievants, as of the date of the time slip they did not have current First
training. It is the City's position that they were not qualified to be called out for overtime on
they have time slipped. Since the City has the right to determine qualifications, and the
required are not an arbitrary and capricious standard but rather one recommended at the
it is the City's position that these individuals have no right to overtime and therefore the
has been appropriately denied.
The grievants argue that the City should
have arranged the training so that they would have been
qualified on the dates in question. Two of th Sewer Crew, who have primary responsibility
confined entry, received the First Aid/Medic
training on the same days as the grievants,
who are not Sewer Crew employees but rather work
in the Parks Division and requested to be placed on the unit wide seniority list for callouts
Sewer Crew are not available. The differences between the grievants and the Sewer Crew
was that the Sewer Crew employees had not let their training lapse, whereas the Parks
training had lapsed beyond the two year renewal standard. In addition, Miller had let his
Bloodborne Pathogen lapse beyond the 1 year renewal requirement. At the time of the call
only available qualified employee was a seasonal employee who was called out and worked
overtime in question.
Based on this information, it is the City's
position that the three grievants, Miller, Krause and
Peters, Parks Division employees, were not qualified to be called for overtime on the date in
and therefore any request for payment for overtime nto worked on the dates in question
denied. If you have any question about the facts of this case, please contact me ....
POSITIONS OF THE
In support of its position that the grievance should be sustained, the union asserts and
The employer's contention that the grievants were not qualified to
perform the work is highly
questionable. The city is guilty of making up the rules as they went along, in that it kept
what constituted being qualified. The city also dragged its feet in insuring employees were
current in meeting the qualifications the employer set.
The employees have a reasonable
expectation to know what the qualifying standards set by the
employer are. The assertions by the city that the grievants were lacking qualifications came
surprise to the grievants. The grievants were never informed they were behind in keeping
their certifications. The city failed to ensure the grievants were properly qualified. The
is that it was the city who had let the certification lapse and not the employees. The
testimony clearly underscores the fact that they were qualified and had all the necessary
to perform the job. The only fault one can find with regards to the grievants was they trusted
to keep accurate records of certifications and to inform them when updates were
needed. In this regard, the city grossly failed in its obligation to
bargaining unit employees.
The city's own exhibits underscore its
deficiencies, in that its letter listing the necessary
requirements for call-out was issued six months after the grievances were filed. Union
underscore the testimony of the grievants and show that without question the grievants were
qualified. All three grievants knew first aid and CPR and were trained in confined entry
The employer is attempting to deny them their rightful opportunity to be called out and get
by citing a technicality that their certifications had lapes. Who allowed the certifications to
The answer is the city and not the employees who let the certification lapse.
The employees had no awareness, and could
not be expected to have any, of the contents of the
voluminous policy handbook. The city is being totally unreasonable if it expects all
employees to have
read such a massive and detailed document. To rely upon such a massive policy manual
employee from having any control over his working life. Rules and policies are buried in a
inaccessible bureaucratic document.
The city has a history of dragging its feet in
getting employees properly trained for call outs for
sewer crew functions. Perhaps if the city had implemented a training program and taken the
review and inform employees of certification requirements, the need for filing these
never have occurred.
In addition to having the individual
grievants be made whole for any and all lost wages and
benefits due to the city's failure to call them out for work, the city should be directed to keep
employees informed in a reasonable amount of time concerning the time their certifications
expiring and to afford employees the opportunity to receive the necessary training and/or
courses to keep their certifications current. The result of appropriate employer diligence will
most senior and qualified employees will be allowed the opportunity to work call outs and be
overtime for such work.
In support of its position that the grievance should be denied, the city asserts and
As provided for in the collective bargaining
agreement and established in two prior grievances,
the city has the right to determine qualifications for work. In these grievances, the city
management right to determine that the qualifications necessary for non-Collection System
employees were to be the same as those within the unit. These qualifications were discussed
union and it was agreed that the department would offer training to interested employees with
goal of having employees fully qualified within six months. The training was discussed at the
Works Labor Management Committee on January 18, 2001 and completed on May 11, 2001.
The qualifications include meeting the
standards for confined entry, the state and federal
standards for which require that individuals have current first aid certification to be able to
act as an
attendant. The Wastewater Treatment Plant Collection System and Operations unit
the seasonal employee who performed the call out work under review, were all able to
first aid training within the required time frame to retain their qualifications. However, the
on the unit-wide seniority list, including the grievants, are not required to maintain such
their current positions, but do need the training to be on the Collection System call out list.
employees did not take advantage of first aid training through the City or other community
to make themselves qualified, they would have to attend the first aid training arranged for
the unit wide requirements. Since none of the three grievants had all the required training as
date of their grievances, they were not qualified to perform the duties of the overtime
on the dates grieved.
The city acted properly in establishing the
qualifications for being called out for Collections
Systems Unit overtime. The three grievants did not meet the qualifications to be called out on
of their grievances. Therefore, the city acted properly in assigning a qualified employee to
out, and the grievances should be denied.
In its reply brief, the union further posits as follows:
The union strongly disputes the contention that the grievants were
not qualified for the call outs.
The expiration of the certifications were not the grievants' fault. The grievants certainly
all requirements to keep and to achieve certifications. The city did not live up to its
obligation by not
keeping the grievants informed as to the currency of their certifications. The city is simply
when it states the grievants did not take advantage of first aid training.
The city attempts to shed responsibility by noting the
labor/management committee had been
working on training issues. But is the list of needed training/certifications the product of
or an attempt to discredit the grievants after the fact?
Had the city acted responsibly, and tracked
the employees' certification histories, the grievants
would have been unquestionably qualified at the time of the call outs. Not to keep the
informed as to the lapsing of their certifications introduces an element of unfairness into the
Such a broad sweeping application of management rights runs contrary to the intent of the
collective bargaining agreement. The grievants were qualified to perform the work on these
In its reply brief, the city posits further as follows:
The grievants were placed on the unit-wide seniority list as soon
as they were qualified, which
was after the dates of the call outs in questions. The qualifications for placement on the list
clearly communicated to the union in December 2000, and individuals were given a list of
qualifications when attending a training program. There is no evidence that the requirements
qualifications were, as the union asserts, changed.
The First Aid/CPR certification requirement
is pursuant to state and federal standards, which the
city incorporated. To say that the individual knew first aid and CPR does not satisfy the
under the law, industry standards of city policy. It is the employee's responsibility to attain
maintain the qualifications to perform duties they wish to bid or sign for. The union alleges
city dragged its feet in arranging for the training, but the city kept its commitment to
training process with six months.
The city acted appropriately in establishing
the qualifications for being called out. The three
grievants did not meet the qualifications to be called out on the dates in question. The city
appropriately in assigning a qualified employee to be called out. The grievances should be
The central question before me is whether employees whose certification in
first aid and CPR
had lapsed should be given overtime opportunities on emergency Wastewater Treatment Plant
The union does not challenge the city's right to establish qualifications for the work
question, nor that the qualifications the city has set are indeed reasonable and appropriate.
it challenges only the city's determination that because they held no current CPR
Krause and Peters were not qualified. In turn, this challenge is itself two-fold: first, the
that by their prior certification in CPR, the employees were still "qualified,"
technicality of their certification lapsing; second, that it was the city's fault,
not the employees', that
the certification had lapsed.
I take these arguments in turn.
The union wants me to find that the employees were qualified to perform emergency
a confined space, notwithstanding that they held no current certification. I cannot make such
finding on the basis of this record.
As 29 CFR 1910.146 notes, employees on WWTP call-outs work in a setting where
atmosphere may suddenly and unpredictably become lethally hazardous (toxic, flammable or
explosive) from causes" beyond their control. The phrase "lethally hazardous" means that
this is not
simply an academic or theoretical question - very literally, this could be a matter of life and
Such a setting, it seems to me, is one where any doubts or ambiguities about an employee's
perform emergency CPR should be resolved with caution. It is an oversimplification to
"better safe than sorry," but there is a reason why such advice has become a time-honored
While the union offered evidence that the employees in question had
previously taken the
necessary first aid and CPR courses and had previously held the necessary
certifications, Krause and
Peters both acknowledged they were not certified as of the call-out dates in question.
the union maintains that their prior certification was good enough.
There may indeed be a unique case where an employee without a current CPR
could be proven to be qualified. This, however, is not that case, as the union offered no
all that the employees had maintained any familiarity with or knowledge of CPR after their
Krause testified he had taken CPR training when offered by the city "in the late
that he was "surprised" to learn that his certification had lapsed. He said he had "no idea"
certification had lapsed, because he had received "no indication from the city" that it had
Peters testified he had taken CPR training in April 1996, but that he "never knew how long
good for," that "nobody from the city" told him his certification had lapsed.
Thus, the union maintains that employees who took CPR approximately five and
prior to the call-outs were qualified to perform emergency CPR in a confined space on fellow
who were suddenly and unpredictably overcome by potentially lethal fumes, flames or
The union correctly notes that the call-out was for work assisting the primary WWTP
employees. The union incorrectly argues that this "reality check" makes their CPR
somehow less than their colleague's. That the work would not have involved primary
for addressing the emergency in no way lessens their need for current qualifications; indeed,
is the WWTP worker who is more directly involved in the confined space work, it is the
employee who may have the higher need for CPR training.
I am sure that Krause and Peters attended diligently to their studies in the late 1980's
1996, respectively, and for a period of time thereafter were qualified to give emergency first
CPR. However, there is absolutely no evidence in the record that they have maintained even
passing familiarity with CPR procedures since then. The union states as a fact that the three
"knew first aid, knew CPR." On the basis of the record, however, this is not a fact but only
assertion unsupported by any other evidence.
Accordingly, I cannot find that they were qualified to accept the overtime
WWTP call-outs on the dates in question.
Which leaves the union's other argument, namely that it was the city's fault the
their certification lapse. The union maintains the city should have kept track of each
status, and provided timely training so they could maintain their necessary qualifications and
As the union correctly states, the employees have a reasonable expectation that the
will inform them of the qualifying standards. The union is incorrect, however, in asserting
employer failed its responsibility in this case.
As noted above, the CPR requirements for employees engaged in confined space
clearly stated in HRP 2006D, a policies and procedures chapter that all fire
service - rescue
operations employees, all WWTP operations employees, all
WWTP collections employees, and all
WWTP professional employees are "impacted" by. Specifically, the requirement that "all
working in and around confined spaces must be trained in confined space entry procedures,
and CPR" is the first item on the appendix entitled "Summary of the
Confined Space Entry Policy For
the City of Superior Wastewater Treatment Plant."
The union maintains the city was "being totally unreasonable" in expecting employees
"read such a massive and detailed policy manual," and that the city cannot rely on rules
"buried in a
very inaccessible bureaucratic document."
Whatever the city's reasonable expectations are for employees to be familiar with
policies and procedures, the question here is not whether all employees
should have read the entire
manual. The question is whether employees seeking overtime opportunities assisting on
space entry call-outs should have read the chapter on the confined space entry program and
familiarized themselves with its provisions, as the employees in fire/rescue and WWTP
required to and already have. Frankly, the notion that employees could maintain they were
to assist on WWTP call-outs without demonstrating familiarity with the
entirety of HRP 2006D is
puzzling, let alone making such an assertion while declaring total ignorance of the
existence. Stating a requirement as the first item on a document entitled "Summary of the
Space Entry Policy" is hardly keeping something "buried in a very inaccessible bureaucratic
That is to say, I find that it is reasonable for the city to expect that DPW employees
overtime work assisting the Sewer Crew would familiarize themselves with the provisions of
2006D setting forth qualifications and responsibilities.
I also reject the union's assertion that the employees "acted in good faith in regard to
certifications up to date." As noted, Krause testified he had taken CPR approximately 15
and had done nothing since then to maintain familiarity with CPR procedures. The union
may find that
this constitutes "good faith in regard to keeping certifications up to date." I do not.
As noted above, HRP 2006D provides that the Human Resources Department "shall
and administer an effective Confined Space Program," and "will coordinate Confined Space
basic first-aid and adult cardiopulmonary resuscitation (CPR) training programs for all City
with designated confined space responsibilities." (emphasis added)
The union's problem in assigning the city's responsibility as to these grievants is that
employees had no designated confined space responsibilities. As it appears
on the face of the
document, HRP 2006D applies to certain employees in the fire department, three groups
WWTP (professional, operations and sewer crew) and buildings and grounds employees
assisting the Sewer Crew only (emphasis added).
Thus, the city's responsibility under HRP 2006D to provide CPR training for
employees of DPW would apply only to those who were required to accept mandatory
WWTP call-outs. I do not believe the union has taken the position that Krause,
Miller and Peters were required to accept this overtime, or even that
they could be required to accept
this overtime, but only that they sought it.
The union argues that "it was the City had let the certification lapse and not the
that the employees "trusted the City to inform them when updates were needed on
that "the City grossly failed in its obligation" to the unit personnel. (emphasis in original).
the union's argument must mean it assigns the city the affirmative and ongoing responsibility
monitor the compliance by all DPW employees with the provisions of HRP
2006D, just on the
possibility they might seek WWTP overtime.
Certainly, there may be a situation where an employer has the primary responsibility
monitor employee compliance with certification and licensure, and to proactively remind
of their need for timely action to maintain accreditation. This is not such a situation, and it
the city's responsibility to monitor the CPR certification of these employees of the Parks and
The limits on the applicability of HRP 2006D aside, the city has agreed to provide
training for those non-WWTP employees who wish to make themselves qualified to accept
call-outs. As noted above, in her December 11, 2000 proposal to settle the Krivinchuk
Mayor Kotter agreed that "within the next six months" the city would provide such training
interested employees" to "make them qualified for call out." Although the record is
the full fate of the Krivinchuk settlement, the record shows that the city provided CPR
May 10 and 11, 2001 - precisely six months after the city's proposal.
Among those who took the training were Miller, Krause and Peters, thus becoming
for WWTP call-outs. Prior to that date, they were not qualified, and the city did not violate
collective bargaining agreement by passing over them for a junior, seasonal employee who
the necessary certifications.
Accordingly, on the basis of the collective bargaining agreement, the record evidence
arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin, this 20th day of December, 2002.