BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FIRE FIGHTERS LOCAL 1072,
INTERNATIONAL ASSOCIATION OF FIRE
Mr. Timothy R. Schoewe, Deputy Corporation Counsel,
Milwaukee County, Milwaukee County Courthouse, Room 303, 901 North Ninth Street,
Milwaukee, Wisconsin 53233, appearing on behalf of Milwaukee County.
Mr. Joe Conway, Jr., President, Fire Fighters Local 311, IAFF,
821 Williamson Street, Madison, Wisconsin 53703, appearing on behalf of the International
Association of Fire Fighters.
The County of Milwaukee (hereinafter County) and Milwaukee County Fire Fighters
Association, International Association of Fire Fighters, Local 1072 (hereinafter Association)
parties to a collective bargaining agreement that was in effect at all times relevant to this
which provides for final and binding arbitration of certain disputes. A request to initiate
arbitration was filed with the Wisconsin Employment Relations Commission on August 6,
Commissioner Paul A. Hahn was appointed to act as Arbitrator on August 13, 2002.
place on October 9, 2002, in the City of Milwaukee, Wisconsin at the Milwaukee County
Courthouse. The hearing was not transcribed. The parties were given the opportunity to file
hearing briefs. Post hearing briefs were received by the Arbitrator on November 19, 2002
and November 20, 2002 (Association). The parties were given the opportunity to file reply
The Association filed a reply brief on December 5, 2002. The County did not file a reply
record was closed on December 9, 2002.
Did the Employer violate the Collective Bargaining Agreement
when it failed to complete and
implement the Reclassification/Reallocation study as directed in Section 5.04 of the
Bargaining Agreement? If so, what is the remedy?
Is the grievance arbitrable?
Does the Arbitrator have jurisdiction to
render the requested relief?
Did Milwaukee County violate Section 5.04
of the collective bargaining agreement?
Did the County of Milwaukee violate section 5.04 of the
collective bargaining agreement? If so,
what is the appropriate remedy?
(1) APPLICATION: EXCEPTIONS
The grievance procedure shall not be used to change
existing wage schedules, hours of work, working conditions, fringe benefits and position
classifications established by ordinances and rules which are matters processed under other
procedures. Only matters involving the interpretation, application, or enforcement of the
this Agreement shall constitute a grievance.
. . .
. . .
(3) Arbitration may be initiated by the
Union serving upon the county a notice, in writing, of
its intent to proceed to arbitration. The notice shall identify the specific contract provision
which it relies, the grievance, the department, and the employes involved.
. . .
(9) The Arbitrator shall neither add to, detract from, nor
modify the language of this
Agreement in arriving at a determination of any issue presented that is proper for arbitration
the limitations expressed herein. The arbitrator shall have no authority to grant wage
. . .
5.04 RECLASSIFICATION /
REALLOCATION STUDY COMMITTEE
The parties agree to create a
reclassification / reallocation study committee no later than
February 1, 2001 for the expressed purpose to evaluate the total compensation level of
/ Equipment Operators and Fire Captains. Said study shall be completed in time for
adoption in the
Airport's 2002 Budget.
Each party shall select four members to
serve on said committee. The Director of Human
Resources and the Director of the Airport shall select a consultant to assist this committee.
This study shall not result in the reduction
of any existing employe's salary. The cost of the
study shall be born by the Airport and the Department of Human Resources for Milwaukee
Neither party shall initiate any litigation of any type as a result of this study.
STATEMENT OF THE
This grievance involves the County of Milwaukee, Wisconsin and Milwaukee County
Fighters Association International Association of Fire Fighters, Local 1072. (Jt. 1) The
alleges that the County violated the collective bargaining agreement by failing to abide by
of Section 5.04 of the agreement by refusing to implement a wage scale
agreed to by the representatives of the County and Association. The County, arguing
substantive arbitrability, takes the position that it did not violate Section 5.04 of the collective
bargaining agreement because there was no mutual agreement reached by the parties as to
adjustment to be adopted and implemented by the County.
The grievance was filed on January 2, 2002 by Union President Wisniewski. (Jt. 2)
grievance was settled by holding it in abeyance until further meetings of the
Reallocation/Reclassification study committee. The settlement was confirmed by letter to
Mr. Wisniewski from Al Eldridge of the County's labor relations department on April
25, 2002. (Jt.
2) The parties failed to reach agreement on a wage adjustment to be submitted to the Airport
Director to be adopted in the airport budget in June of 2002. The Union then notified
July 18, 2002, that it would file for arbitration with the Wisconsin Employment Relations
Commission. (U. 1) The grievance was submitted for arbitration to the Wisconsin
Relations Commission on August 6, 2002. (Jt. 2)
The Milwaukee County Fire Department consists of fifteen firefighter/equipment
three Captains, one Assistant Fire Chief and one Fire Chief. Their primary responsibility is
emergency response to the Milwaukee County Airport with regard to aircraft fires and
structural fires, hazardous material incidents and emergency medical responses. They
one fire station, staffing three "Crash Vehicles" and an assortment of other support vehicles.
firefighter/equipment operators and Captains belong to the bargaining unit, while the Fire
the Assistant Chief do not. The eighteen members of the bargaining unit are evenly split into
shifts with a Captain in charge of each shift. The members work a reoccurring shift
consisting of one
twenty-four hour shift on-duty, followed by two twenty-four hour shifts off-duty. There are
bargaining unit personnel on duty each and every day of the year.
Milwaukee County employs all members of the Fire Department which falls under
of Airport Operations, which is under the Milwaukee County Department of Public Works.
Airport Operation falls within the overall Milwaukee County budget, but is unique from
operations in that it does not impose a tax levy upon the residents of Milwaukee County.
revenue to operate the airport is generated through airline landing fees along with other
revenues such as parking and usage fees.
In October of 2000, the parties concluded negotiations for a 2001 agreement and for
2002-2004 collective bargaining agreement. As part of that contract settlement, the parties
Section 5.04. The parties agreed to create a reclassification/reallocation study committee by
1, 2001 for the express purpose to evaluate the total compensation level of fire
operators and fire captains. Said study was to be completed in time for adoption in the
budget. Each party was to select four members to serve
on the committee. The Director of Human
Resources and the Director of the Airport were to consult
a consultant to assist this committee. Any cost of the study was to be born by the airport
Department of Human Resources for Milwaukee County. (Jt. 1)
Although the agreement was ratified by the members of the Association's bargaining
to December 31, 2000, the agreement was not signed by representatives of the parties until
26, 2001. (Jt. 1) The Association during the Spring of 2001 made several attempts to get the
to name members to the Study Committee and to schedule meetings of the Study Committee.
On March 13, 2001, the Association filed a grievance to get the Committee established. (U.
grievance was resolved during an April 11, 2001 meeting when the parties scheduled a
meeting, and the Union dropped the grievance. (testimony of Wisniewski) By a letter from
Association's attorney on December 11, 2001, the Association again demanded that the
participate in a meeting of the study Committee. (U. 1)
On January 2, 2002, the Association filed the grievance in this matter against the
failure to meet or comply with section 5.04 of the collective bargaining agreement. (Jt. 2)
23, 2002, the parties agreed to a settlement of the aforementioned grievance which was
in a letter to Wisniewski from Eldgride dated April 25, 2002, and executed by Mr.
behalf of Local 1072 on May 6, 2002. The grievance was to be held in abeyance pending
efforts of the study committee.
At a meeting on April 25, 2002, the Association presented the result of a study that it
done itself of similar situated fire departments at airports across the Country. (Assn. 7) On
2002, Eldridge submitted a draft report of the Reclassification/Reallocation Study Committee
Association. (Assn. 9) On June 19, 2002, the Human Resources Department submitted a
the Airport Director of the results of the study committee attaching a wage proposal from the
H.R. Department and a wage proposal from the Association for consideration by the Airport
for inclusion in the airport's 2002 budget. (Jt. 3) (The document is dated July 19, 2002, but
the record establishes that the correct date was 6-19-02).
The Association notified the Human Resources department of the County on July 9,
in writing, that it disagreed with the aforementioned report submitted to the Airport Director
petitioned for arbitration, notifying, by copy of the letter, Eldridge of the Labor Relations
Department. (Assn. 1)
At the arbitration hearing on October 9, 2002, the County raised procedural and
arbitrable issues. The County submitted that procedurally the County had not been given
notice of the appeal to arbitration; substantively, the County raised the issue that the
pursuant to the arbitration clause of the collective bargaining agreement did not have
modify the wage schedule in the collective bargaining agreement.
POSITIONS OF THE PARTIES
The Association argues that the grievance is substantively arbitrable because the
claim is not to ask the Arbitrator to change existing wage schedules in the collective
agreement but to enforce section 5.04 which was agreed to by the County and requires the
Director to adopt the recommendation of the study committee. Procedurally, the Association
that the County had ample notice that the grievance was held in abeyance until a May 10,
meeting and completion of the study committee's responsibilities which were to be concluded
30, 2002. The Association notes that the County was given written notice of its intention to
to arbitration to Jertha Ramos-Colon of Human Resources and Al Eldridge, appropriate
The Association argues that the report submitted by Jertha Ramos-Colon to the
Director stated that it was to be considered by the Airport Director which is in violation of
5.04 where the language clearly states that the Study Committee's recommendation was to be
"adopted" not just considered. The Association argues that the study committee as a whole
to submit the fire fighters wage proposal; the committee did not agree to submit the
Human Resources wage proposal. The Association argues that the submission of the
of Human Resources proposed wage modification for the fire fighters was done unilaterally.
Association argues that only the fire fighter's wage proposal was agreed to be submitted, and
therefore, the inclusion of the Department of Human Resources wage proposal was not
with Section 5.04; the Fire Fighters wage schedule was the only schedule that should have
The Association submits that only the Association provided compensation data from
agreed upon comparable airport fire fighting departments and no one from the County
figures in the report submitted by the Association.
In its reply brief, the Association, responding to a County argument regarding the
process, posits that only its witness, Wisniewski, testified as to the budgetary process and
nothing to refute Wisniewski's testimony that the Airport has its own budget and that this
incorporated into the County budget with no impact to the County tax levy. The Association
that the budgetary requirements of Sections 59.60 and 63.11 of the Wisconsin State Statutes
no bar on the County granting the Association wage increases. The Association submits that
County Board and the County Executive, in their approval of the collective bargaining
containing the language of section 5.04, have already approved any wage increases resulting
implementation of the Study Committee's recommendation for wage modifications for the
The Association reiterates that the Association's
study and data collection went unchallenged.
The Association points out that the experts of the Human Resource Department failed to
their own study and were unable to collect the same data that Association President
able to obtain on his own initiative. The Association takes the position, in response to
argument by the County, that it did not delay the establishment of the Committee and that it
numerous attempts to get the Committee under way in early 2001. The Association again
Section 4.01(1) does not prevent the Arbitrator from considering the Association's grievance
granting a remedy to implement the Committee report that the Union argues was agreed to
members of the study committee. The Association argues that the report developed by the
Committee was to be submitted to the Airport Director for adoption and it was inappropriate
violation of Section 5.04 for the County to unilaterally submit its own recommended wage
the Airport Director.
In conclusion, the Association submits that the County failed to follow the
language of Section 5.04. The Association asks that the grievance be sustained and as a
Association's wage schedule should by implemented and the fire fighters made whole.
The County takes the position that Section 4.02(9) does not allow the Arbitrator to
wage increases or decreases and therefore the grievance is not substantively arbitrable. The
submits that the Association's argument that the County did not incorporate the study into the
Airport budget is misguided because the Airport budget is not separate from the Milwaukee
budget and the Association's witness's unsubstantiated opinion does not override Sections
63.11 of the Wisconsin Statutes. Under that law, the budget can only be adopted by the
Board of Supervisors in conjunction with the County Executive. The County submits that it
that wage rates require specific County Board and County Executive action to be
The County takes the position that Wisniewski's study on behalf of the Association
authorized by the Committee, and the Study Committee never reached a decision to advance
Airport Director the study completed by the Association. The County argues that the record
does not support any assertion that the Study Committee adopted the Association's study or
of comparable airport fire fighting departments. The County avers to the Arbitrator that the
to be submitted to the Airport Director for inclusion in the 2002 budget was to be a product
negotiation and that it is baseless in fact that the Association proposal was a compromise
by the Committee. Testimony of the County's witness, the County submits, demonstrates
of any recommendation from the study committee that the Association position was to be
The County argues that Association President Wisniewski acknowledged in his testimony
the work of the
Committee was not completed and that he admitted that no consensus had been reached
Committee on any proposal, recommendation or study to be submitted to the Airport
regarding prospective wage amendments to the fire fighter's wage schedule.
The County submits that the testimony of its witness noted that there was no
consensus and no Committee recommendation and that the Study Committee merely agreed
the Association proposal for consideration, not adoption, and that it was the specific
that both the Association proposal and the Department of Human Resources proposal would
submitted for consideration. Neither party, the County argues, agreed that either proposal
the adopted position of the reallocation/reclassification study committee.
The County takes the position that the issue before the Arbitrator ought not to be that
County failed somehow to implement the study. The County submits there was no finality to
process and there was no recommendation to adopt. The process under Section 5.04
mutuality of the parties which was absent. The County did not breach the contract because it
not act unilaterally to confer a benefit to represented employees under a collective bargaining
In conclusion, the County takes the position that there was no study for the County to
implement, and it is clear from the testimony of witnesses for both parties that the Study
did not reach a consensus and never really finished its work. The County submits that the
has no recourse but to deny the grievance.
This is a contract interpretation case. The Association alleges that the County
5.04 of the parties' collective bargaining agreement when it refused to adopt and implement a
of a study committee initiated by said section to adjust wages of bargaining unit members.
I need to address the County's two arguments that the grievance in this matter is not
because the arbitrator does not have jurisdiction to adjust wages and because the County was
given proper notice of the Association's decision to proceed to arbitration. Following the
opening statement at the hearing, during which it raised these arguments, I stated that I had
authority to decide substantive issues unless the parties gave me that right. At that point, the
by their representatives, stipulated that I could decide all arbitrable issues. I recognize that
arbitration clause of the Agreement states that I cannot grant wage increases, but I find that I
address the issue of whether the County violated section 5.04 of the Agreement without
provision of the contract. Therefore, the grievance is substantively arbitrable. Procedurally,
agreement requires that notice of arbitration be given by the Association to the County.
section 4.02) I find that
the Association met that requirement when the Association President notified Eldridge
of the County
Labor Department in writing on July 18, 2002 of the intent to
arbitrate. (Assn. 1) The Petition to the
WERC also put the County on notice. (Jt. 2) Therefore, I find the grievance
The events leading up to this issue and arbitration had what could best be described
tortured history. It is evident from the record that the Association had to work very hard to
formulation of the study committee required by section 5.04 and had to work equally hard
the filing of two grievances to get County representatives to meet. The first grievance was
in April of 2001, resulting in committee formulation and meetings. The second grievance,
before me, was held in abeyance pending the outcome of resumed meetings of the
that took four months from the filing of the grievance in January of 2002. (Jt. 2)
On the day the grievance was settled by holding it in abeyance, the Association
committee with the results of the Association's survey of airport fire departments from a list
to departments. This meeting took place on April 25,
2002. (Jt. 2 & Assn. 7) The parties in
committee met again on May 10, 2002. The hearing testimony supports a conclusion that
significant differences as to what the Association thought it should receive in adjusted wages
what the County thought it could afford. (Testimony of Wisniewski and Eldridge)
The Association takes the position that at the May 10 meeting it offered a
the committee agreed would be submitted to the Airport Director for adoption in the 2002
budget. The County submits there was no agreement, although it did not dispute the results
Association's study or the numbers generated from the results of that study. The County
the record establishes that the compromise offered by the Association, which is part of
Assn. 9, was
to be submitted to the Director only for consideration as the County could not agree to it but
to submit it.
On June 3, 2002, the County submitted a draft of the report it was going to
submit to the
Airport Director. Attached to the Draft was the proposal of the Association and the proposal
County Human Resources Department; the Association did not agree with the Draft.
(Assn. 9 & 10)
On June 19th the County unilaterally submitted a report to the Airport
Director for his consideration;
attached were the respective proposals. (Jt. 3) The Association, in a strongly worded
letter to the
Human Resources Department, which authored the report to the Airport Director, disagreed
unilateral action of Human Resources, the report itself and demanded another meeting of the
Committee, the absence of which led to the notice of intent to
arbitrate. (Assn. 1) I note here that
no evidence was introduced as to what the Airport Director did with the report he received
Human Resources with the attached proposals.
The essence of this matter is section 5.04
and whether there was any agreed to report
submitted to the Airport Director for inclusion in the 2002 airport budget. It is clear that if
Committee reached an agreement on wage adjustments, and there was no issue that these
needed an upward adjustment, that the Airport Director by contract had to adopt the
agreement into the airport budget that he submitted to the County Board. Just as clearly,
section 5.04 does not mandate that the parties have to reach agreement and contains no
spells out what was to happen if the parties did not reach agreement. Nor does either party
if no agreement was reached, an arbitrator was to look at respective proposals and pick one
fashion a wage adjustment. The Association's position is that it believed that at the
conclusion of the
May 10th meeting there was agreement and the language in the report
submitted to the Airport
Director should have told him to "adopt" the Association's compromise proposal and not just
I initially find that there is nothing in writing in the record that evidences an
what to submit to the Airport Director. No document was introduced bearing recommended
adjustments signed by representatives of the County and Association. Further, there was no
introduced to clarify the intent of Section 5.04. Winiewski testified that the study committee
up to bridge a significant gap between the parties' wage proposals during the 2000
Therefore, I can only look to the specific language of 5.04 to divine its intent.
I find that based on the testimony of Winiewski for the Association and Eldridge for
County no agreement was reached by the study committee on a wage adjustment to be
the Airport's 2002 budget.
Winiewski testified on direct and cross-examination as follows:
Union pushed Assn. 7 -- County said can't go to
County Board with these numbers; County
offered a compromise -- I said can't get this by members; Union made a compromise
said it would present and support; I was against report (Jt. 3) submitted to
Airport Director; I don't
believe study concluded; I could compromise on Assn. 7; verbally signed off, wasn't
in writing at
conclusion of meeting on May 10th, did not happen; Union expects to meet in the
future to conclude
study; there was no final report to the Airport Director; language of study committee did not
guarantee a result.
Eldridge testified on direct and cross-examination as follows:
Disagreement -- both sides had different views on
different issues; committee didn't take any
official action; committee never adopted any report to forward to Airport Director; each side
developed a proposal and that is what Human Resources submitted to the Airport Director;
proposal and no TA; after a caucus County didn't know where it
could go and agreed to include
Union proposal in report; I didn't dispute Union's figures -- felt they would be honest
and it was
agreed by the parties to submit both proposals.
It would be difficult from this testimony to find there was any agreement between the
on a wage adjustment proposal to submit to the Airport Director for adoption in the airport
budget. And as the Local President testified, there is no guarantee in section 5.04 that
would be or had to be reached. There was no testimony as to why the Human Resources
submitted the report when it did but a reasonable conjecture is that time was running out to
the Airport Director's budget under the County's budgetary process. Given my decision I
I do not need to analyze the County's budgetary process under applicable statutes.
The County's recalcitrance in organizing the study committee after the parties' labor
agreement was signed in February of 2001, and in scheduling meetings as noted by the
Director of Labor Relations in a letter to Human Resources (Assn. 1), suggest a
remedy that the
parties should be directed to continue an attempt to reach an agreement. However, the
5.04 is clear that the agreement on a wage adjustment was to be for adoption in the 2002
Even assuming the budgetary testimony of Winiewski is correct, I do not believe
Stats. Sections 59.60 and 63.11 it would be possible for me to order any relief that could
bargaining unit employees' wages for 2002 or the 2002 budget and no testimony or evidence
introduced to lead me to believe or prove otherwise. I do not believe I have the authority
would be adding language to the agreement to order the parties to attempt to reach an
be submitted for a different yearly budget.
Based on the record as a whole, I issue the following
The County did not violate section 5.04 of the collective bargaining agreement.
Grievance is denied.
Dated at Madison, Wisconsin, this 2nd day of January, 2003.