BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LA CROSSE CITY EMPLOYEES' UNION, LOCAL 180,
CITY OF LA CROSSE
Davis, Birnbaum, Marcou, Seymour & Colgan, LLP, by Attorney
James G. Birnbaum, , appearing
on behalf of the Union.
Mr. Peter B. Kisken, La Crosse Assistant City Attorney,
appearing of behalf of the City.
La Crosse City Employees' Union, Local 180, SEIU, herein the Union, and the City
Crosse were at all material times parties to a collective bargaining agreement dated
January 7, 2000,
and covering the period January 1, 2000, through December 31, 2001, which provided for
arbitration of certain disputes between the parties. On July 13, 2000, the Union filed a
the Wisconsin Employment Relations Commission requesting the appointment of a
member to arbitrate a dispute between it and the City concerning impact bargaining over a
of positions. The undersigned was thereafter appointed as Arbitrator.
On November 16, 2001, the City issued a letter to the Arbitrator raising procedural
to the arbitration of the dispute. Specifically, the City alleged that the matter was incorrectly
as a grievance arbitration instead of an interest arbitration, that no grievance had ever been
that the matter was untimely according to the parties' grievance procedure. The parties
submit the preliminary issue of procedural arbitrability on briefs. The City submitted its
December 13, 2001. The Union submitted its response on January 22, 2002. Additionally,
submitted affidavits and a copy of the collective bargaining agreement
The issue preliminarily before the Arbitrator is:
Is the grievance arbitrable?
Matters involving the interpretation,
application or enforcement of this contract shall constitute
a grievance under the provisions set forth below:
Step 1: The
meet with and discuss the grievance with their immediate
supervisor, with union representative present, within thirty (30) calendar days, of the date the
employee should have known of the grievable matter. If no solution is reached the employee
Step 2. Reduce the grievance
in detail to writing within seven (7) calendar days following the
meeting, using, an "Initiation of Grievance Form" and submit it to the supervisor who will
forward it to the Director of Personnel, who, with the Department Head, within ten (10)
working days (Monday through Friday, excluding holidays) shall attempt to resolve the
grievance and answer the grievance in writing. Within those ten (10) working days,
representatives of the Union, the grievant, the Personnel Director, the Department Head and
the supervisor shall meet to attempt a resolution of the disputed matter.
Step 3. If a satisfactory
solution cannot be reached, the Union may, within thirty (30) calendar
days of the grievance meeting, appeal to the Wisconsin Employment Relations Commission
who will appoint a neutral arbitrator. The Union shall copy the City on all requests for
grievance arbitration, the findings of the arbitrator to be final and binding on the parties
It is understood that the 30 calendar day
requirement to file a grievance in Step #1 above shall
be interpreted to mean the next regularly scheduled working day that both the employee and
supervisor are present at work.
The parties may by written agreement
extend the time limits contained in the grievance
The arbitrator shall not add to, or subtract
from the terms of this agreement.
The City and the Union agree that the decision of the arbitrator
shall be final and binding on both
The grievance procedure set forth herein
shall be the exclusive complaint of any employee as to
any matter involving the interpretation or application of this agreement.
All complaints originating in all City
departments shall be handled in the manner outlined above
and no deviation therefrom will be permitted. Specifically, employees are prohibited from
such complaints, formally or informally to officers of the City of La Crosse not included in
Members, stewards, officers/or
representatives of the Union are permitted to discuss and/or
adjust the grievances between an employee and his/her supervisor during or after regular
hours. In carrying out the above duties the parties shall not interfere with the normal and
operation of the department. A person(s) acting in the above capacity shall suffer no loss of
said action. A grievance shall be adjusted on an individual basis unless otherwise agreed to
parties. No members, stewards, officers/or representatives of the Union shall be harassed
performance of their duties in discussing and adjusting grievances.
POSITIONS OF THE PARTIES
The City argues that the only matters which are subject to grievance
those which are properly advanced through the contractual grievance procedure. Article 2 of
the collective bargaining agreement specifies strict timelines to be followed in advancing a
grievance to arbitration, which the Union ignored. In fact, the Union has never filed a
grievance in this matter.
On May 8, 2000, the City Personnel Director informed the Union that
unsuccessful efforts to negotiate, two positions would not be changed in the contract. The
Union was required by contract to submit a grievance within 37 days, which it did not do.
authorities are in accord that where strict timelines for filing grievances are ignored the
grievance should be dismissed (citations omitted).
The Union concedes that the original intent of the petition was to initiate interest
proceedings. The affidavit of the Union President reveals that the parties were stymied in
attempt to negotiate appropriate wage rates for certain new positions in the
bargaining unit and that they agreed that the Union should proceed as it saw fit. The
determined to initiate interest arbitration proceedings and attempted to do so. It was not the
of the Union to initiate grievance arbitration proceedings, wherefore the Union desires that
be converted to an interest arbitration case.
It is clear from the affidavits submitted by both parties that the petition for grievance
arbitration was filed in error and that there never was a grievance filed in the case. That
case, the petition must be dismissed. Article 2 of the collective bargaining agreement makes
that a grievance may only be submitted to arbitration after having been reduced to writing
proceeded through the preliminary steps of the grievance procedure. The Article also
arbitrator from adding to, or subtracting from, the terms of the agreement. Since the
steps were not followed, therefore, the matter is not procedurally arbitrable.
An additional question raised by the Union's submission is whether under the
the case may proceed as an interest arbitration. I find that it may not.
Wisconsin Statutes, sets forth the procedure necessary to advance a case to interest
was not followed here. Furthermore, there is to my knowledge no provision in the collective
bargaining agreement that gives a grievance arbitrator authority to convert a case to an
arbitration and proceed accordingly. Absent statutory and contractual authority, I am
doing other than addressing this matter as a grievance arbitration and ruling on it in that
For the foregoing reasons, and based upon the record as a whole, I hereby enter the
Due to the fact that the Union did not file a grievance in this matter or otherwise
according to the contractual grievance procedure, the matter is not procedurally arbitrable
petition is dismissed.
Dated in Fond du Lac, Wisconsin, this 11th day of February, 2003.
John R. Emery, Arbitrator