BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHEAST WISCONSIN TECHNICAL
EDUCATIONAL SUPPORT PERSONNEL
AND TECHNICAL SUPPORT
NORTHEAST WISCONSIN TECHNICAL
COLLEGE DISTRICT BOARD
(Bargaining Unit Position Grievance)
Mr. David A. Campshure, Bayland UniServ Director, on behalf
of the Association.
Davis & Kuelthau, S.C., by Mr. Robert W. Burns, on behalf of
The above-captioned parties, herein "Association" and "College", are signatories to a
collective bargaining agreement providing for final and binding arbitration. Pursuant thereto,
was held in Green Bay, Wisconsin, on June 10, 2002. The hearing was transcribed and the
there agreed I should retain my remedial jurisdiction if the grievance is sustained. The
subsequently filed briefs that were received by October 9, 2002.
Based upon the arguments of the parties and the entire record, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the College violate Article III, Section 7, of the Operational
Support and the Technical
Support contracts when it created certain part-time casual positions outside the bargaining
if so, what is the appropriate remedy?
The College traditionally has hired casual employees who are outside the two
involved in this proceeding.
The parties' prior agreements stated in Article III, Section 3, that all employees who
more than 18¾ hours a week constituted regular part-time employees who were in the
units. If employees worked fewer hours, they were deemed to be casual employees and
The parties in 1999 bargained over that issue and then agreed to the following
is contained in Article III of the current contracts:
. . .
3. The term "employee(s)" as used herein means all
regular employees working 18¾ hours or
more per week. Beginning January 1, 2000, the term "employee(s)" as used herein means
regular full-time and regular part-time employees working more than 832 hours per year."
. . .
7. Casual employees working on a regular basis less
than 18¾ hours per week for working on
an on-call basis shall continue to be excluded from this Agreement except for such positions
as may be held by staff who qualify for coverage under the 1982, 600 hour three year rules
and regulations of Municipal Retirement System. Should this exception be met, Article III,
sub 5D shall apply. (The above 600 exception to be effective for hours accumulated on or
after January 1, 1985.)
Beginning January 1, 2000, positions
requiring a casual employee to work on a regular basis
832 hours or less per year shall be excluded from this Agreement. The employer agrees that
such casual employee positions shall not be utilized in such a manner as to displace any
present bargaining unit positions. A position which was not in the bargaining unit because
it was 832 hours or less per year that later becomes part of the bargaining unit because it is
more than 832 hours per year shall be
considered a vacancy and posted and filled
in accordance with other provisions of this
It is undisputed that no bargaining unit employees after
1, 2000, were laid off or had
their hours reduced because of the creation of those positions; that there are now about 192
bargaining unit positions in both bargaining units as opposed to the about 167 bargaining unit
positions in both bargaining units that existed when the new language in Article III was
agreed to in
1999 (College Exhibit 1); that the second paragraph of Article III, Section 7, above became
January 1, 2000, and thereby superceded the first paragraph of Article III, Section 7,
which is no
longer in effect; and that another, separate grievance has been filed over a related issue that
Sandra Kraft, who served as the Association's president and who chaired the
1999 bargaining team, was called by the Association to testify. She said that the Association
negotiations wanted to "eliminate what was called the 600 hour, three-year rule" which
part-time employees from working more than three years; that the parties then agreed a
"truly part-time position" would only serve as a "supplement for overload of work"; and that
it was her
"interpretation" that two part-time positions would be combined into one bargaining unit
because the Association was looking at positions, rather than people.
On cross-examination, Kraft testified that the Association in negotiations never
the College had to establish a certain number of positions and that there was never any
negotiations over whether the College was required to combine positions so they would total
than the 832-hour threshold set forth in Article III, Section 7, above.
Karen Parr-Jerabek served as the Association's president during the processing of the
grievance and she also served on the Association's 1999 bargaining team. She testified that
Association wanted to "protect the unit members, to give them the benefits of being a unit
. ."; that we "had the position identified as position versus people to cover the positions and
thought would be bargaining unit positions"; and that there was some difficulty in obtaining
information from the administration regarding the number of hours actually being worked by
On cross-examination, she testified that the College under the contracts can determine
whether it wants to create full-time or part-time positions; that the College cannot create
several part-time, non-bargaining unit positions of less than 832 hours apiece; and that the
College in such
situations must combine them into a full-time position. She added that she is unaware of any
bargaining unit member who had his/her hours reduced because of part-time employees.
Pat Prunty also participated in the 1999 contract negotiations on behalf of the
She agreed with Kraft's testimony as to what then transpired regarding the intent to change
III and said: "we were very definite to put positions in all our language, that it was 832
position." She also said that the parties discussed whether two employees could work in a
that totaled over 832 hours. Asked whether the College ever specifically agreed to combine
more positions if they totaled over 832 hours, she replied: "I'm just not sure."
Assistant Manager of Human Resources Kelly Holtmeier did not participate in the
contract negotiations. She testified about the creation of certain part-time positions,
part-time positions that were created after full-time employee Rich Bigari left in 1998, which
before the January, 2000, cutoff date set forth in Article III, Section 7, above. Asked
College could do the same thing today, she replied, "No" because "we would interpret that
displacement of a unit position." She added that the creation of certain new part-time
not result in displacing any bargaining unit employees and that she is unaware of any
language requiring the College to combine part-time employees.
On cross-examination, Holtmeier testified that she is unaware of whether Sue
Joanne Cantwell share a job and also whether Janet Allen and Jackie Shepard share another
Human Resources Manager Sandy Ryczkowski participated in the 1999 contract
on behalf of the District. She testified that the revised language in Article III was aimed at
part-time employees from working over 832 hours a year and at prohibiting the displacement
bargaining unit position "with a position that's not a bargaining unit position." She agreed
College after January 1, 2000, cannot create two part-time positions to displace an existing
bargaining unit position, but she added that the College can create new part-time positions if
not displace full-time bargaining unit positions. She also said that there was never any
1999 negotiations to combine part-time positions and that while the Association raised that
"that was not the final result of the negotiations." She stated that there never was any
negotiations to limit the College's right to establish or fill positions and she agreed with
testimony that the College after January 1, 2000, could not create two part-time positions out
former full-time position the way it did before that date with Bigari's former position.
On cross-examination, Ryczkowski testified that the College proposed doing away
prior 600-hour requirement; that, "I don't recall any conversation about combining" in the
negotiations; and that "part-time and casual employees are the same thing."
The Association filed the instant grievance on July 11, 2000 (Joint Exhibit 3),
identified various part-time positions it believed should be converted to full-time positions.
POSITIONS OF THE PARTIES
The Association claims that the parties in the 1999 negotiations concentrated on
a position, not an employee from the bargaining unit"; that, "The language of Article III,
clearly references positions, not employees"; that this change can be seen in Section 7's prior
reference to "employees" and its current reference to "positions"; and that Kraft and Prunty's
testimony clearly establishes the parties' intent. The Association asserts that the College errs
claiming that Article III, Section 7, applies only to instances in which a current bargaining
displaced; that such displacement is not needed because "Any position that uses casual
over 832 hours belongs in the bargaining unit"; and that its grievance "does not allege that
bargaining unit positions were displaced." It also contends that the entire contracts must be
a whole, rather than only concentrating on the last sentence of Article III, Section 7; that its
refers to displacement because the College failed to treat the disputed part-time positions as
vacancies; and that Article II, the contract's management proviso, is modified by the express
of Article III, Section 7. The Association does not request a monetary remedy; instead, it
an order directing the College to post the disputed part-time positions.
The College maintains that the grievance is without merit because its "understanding
parties' intent of Article III, Section 7, is consistent with the current language" which permits
College to create part-time positions of less than 832 hours of work a year, provided that
positions do not displace any bargaining unit members. The College also contends that,
examples cited in the grievance fall short of being considered contract violations"; that it has
managerial right to establish positions" under Article II of the contracts because it never
that right in negotiations; and that, it "is not required to combine part-time positions in order
bargaining unit positions." The College also states that the Association's allegations "are not
supported by testimony or evidence"; that the Association is improperly trying to restrict the
College's "right to establish positions"; and that the record supports the College's position.
Nothing in the contracts expressly addresses whether the College can or cannot create
part-time positions of less than 832 hours a year in order to avoid creating full-time positions
in the bargaining unit. Hence, while both parties rely on particular parts of the contracts to
their respective positions, I find that it is necessary to look at the bargaining history to
intent of the parties when they agreed to the new language in Article III, Section 7.
As to that, Association witnesses Kraft, Parr-Jerabek, and Prunty all testified that it
Association's intent to limit the creation of part-time positions and to thereby require the
combine part-time positions into full-time positions so that more employees could benefit
in the bargaining unit.
While that no doubt was their intent, there is no evidence that the College ever
Thus, Kraft stated on cross-examination that there was no discussion over whether the
be required to combine such part-time positions and Prunty who was asked whether
ever agreed to combine positions replied, "I'm just not sure." Human Resources
Ryczkowski also participated in those negotiations and she flatly stated that there was never
agreement in the 1999 negotiations to combine part-time positions and that even though the
Association made that proposal, "that was not the final result of the negotiations."
I credit Ryczkowski's testimony and find that there was never any mutual agreement
negotiations requiring the College to combine part-time positions in the fashion urged here by
Association. Absent any such agreement, the College retains its right under Article II of the
contracts, entitled "Management Rights Reserved", and applicable state law to determine
to create part-time positions of less than 832 hours per year, provided that the College
Article III, Section 7, and not displace bargaining unit employees.
For as stated in How Arbitration Works, Elkorui and
Elkouri (BNA, 5th Ed., 1997) p. 723:
. . .
"It is generally recognized that in the absence of a contractual
provision limiting management's
rights in regard to filling vacancies, as for example a clear requirement to maintain a certain
of employees on a particular job, it is management's right to determine whether a vacancy
when and where it will be filled." (Footnote citations omitted).
. . .
Here, since there is no "clear requirement" to either combine part-time positions into
positions or to maintain a certain number of full-time positions, the District retains the right
determine the number of part-time and full-time positions and to also create new part-time
that do not run afoul of the displacement language of Article III, Section 7. Since no
employees after January 1, 2000, have been displaced by either reducing their hours or
their positions, it follows that the District has not violated Article III, Section 7.
In this connection, it must be pointed out that the examples listed in the Association's
grievance (Joint Exhibit 3) all involve part-time positions that were either created before the
1, 2000, date set forth in Article III, Section 7, or newly-created part-time positions created
date. Hence, nothing herein should be misconstrued to mean that the College is free to
create part-time positions out of existing full-time positions. To the contrary,
Human Relations Manager
Holtmeier acknowledged that the College today cannot create the part-time positions that
created after full-time employee Bigari left employment in 1998 and Ryczkowski agreed with
In light of the above, it is my
That the College did not violate Article III, Section 7, of the Operational Support and
Technical Support contracts when it created certain part-time casual positions outside the
unit. The grievance is therefore denied.
Dated at Madison, Wisconsin, this 10th day of January, 2003.