BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEBOYGAN FALLS EDUCATIONAL
SHEBOYGAN FALLS SCHOOL DISTRICT
Mr. Clyde Clauson, UniServ Director, Kettle Moraine UniServ
Council, N7778 Rangeline Road, Sheboygan, Wisconsin 53083, appearing on behalf of the
Davis & Kuelthau, S.C., Attorneys at Law, by Attorney Mary S.
and Attorney Paul C. Hemmer, 200 South Washington Street, Suite
Box 1534, Green Bay, Wisconsin 54305-1534, appearing on behalf of the District.
Pursuant to the joint request by Sheboygan Falls Educational Support Staff
herein "Union", and the subsequent concurrence by Sheboygan Falls School District, herein
or "Employer", the undersigned was appointed arbitrator by the Wisconsin Employment
Commission on July 22, 2002, pursuant to the procedure contained in the
provisions of the parties' collective bargaining agreement, to hear and decide a dispute as
below. Hearing in the matter was conducted by the undersigned on September 5, September
October 28, 2002, at Sheboygan Falls, Wisconsin. The hearing was not transcribed. The
completed their briefing schedule on January 9, 2003.
After considering the entire record, I issue the following decision and Award.
The parties were unable to stipulate to the issues. The Union frames the issues as
1. Did the District violate the collective
bargaining agreement when it laid off
2. If so, what shall be the remedy?
The District frames the issue in the following manner:
1. Did the District violate the collective bargaining
agreement when it placed Tom Platner on
layoff because he was not immediately qualified to perform the available work?
Having reviewed the entire record, the Arbitrator adopts the Union's framing of the
The Sheboygan Falls School District ("District") is located at 220 Amherst Avenue,
Sheboygan Falls, Wisconsin. Dr. C. Lee Riter ("Riter") is the District Administrator and
has held that
position since 1995. John Raml ("Raml") is the Supervisor of Buildings and Grounds, a
has held since 1990. The District hired Tom Platner ("Grievant") in October 1993 to fill the
of "Maintenance W/Emphasis on Fields and Grounds." He was hired primarily as a
In the past decade, the District hired individuals with specific trade skills into the
"Maintenance" positions. Michael O'Donnell ("O'Donnell") was hired because he obtained
apprenticeship level skill in heating and cooling systems and the mechanics of those systems.
the primary staff member who is trained and authorized to program levels 3 and 4 of the
Environmental System ("System") located in the District buildings. He helped to install the
in the high school saving the District $125,000.00. The Grievant does not have any training
background in the maintenance or programming of the System. He did not have any access
levels 3 and 4 of the System in order to adjust heating and cooling problems. His experience
System was primarily limited to pulling and installing Robert Shaw wires in Machine Room
2 in the
The District has a two year-old $1.2 million dollar swimming pool, which requires an
individual who is certified and experienced in maintaining the pool's chemical balance. This
essential for the health and safety of individuals, from both the school and the community,
the pool on an almost around-the-clock basis. O'Donnell has two (2) years of experience
the swimming pool chemical balance as well as the air around the pool. He is certified in
the pool's chemical balance. The Grievant had no such certification or training in pool
He was and is not currently able to do the maintenance of the swimming pool chemical
balance or of
the air in the swimming pool area.
The District hired the least senior person in a "Maintenance" position in order to
skills in the area of electro mechanics, as well as continuing to fill that specific
with an individual with commercial electrical skills. Randy Lawrence ("Lawrence") has
in the electro-mechanic technical program at Lakeshore Technical College. He got into
mechanics at Richardson Brothers where he spent seven (7) years. He not only installed the
protection system, but also maintains it for the District, and is available for maintenance and
repair of various electrical systems, A/V equipment, security system (cameras), the System
He is currently performing electronic repair work that would have to be subcontracted if he
off. He does a lot of electrical work for the District. He is assigned the big rewire jobs.
reading is required in virtually all of the work that he does.
Unlike Lawrence, the Grievant was not assigned the high voltage jobs. Instead, the
did electrical work like running and pulling of wire, replacement of light fixtures with new
and assisting with the replacement of outlets. He did not do connections, disconnects or
His electrical work was more in the nature of Helper or unskilled worker. He does not
the National Electrical Code is which is necessary in order to do commercial electrical work.
not know what the commercial electric service (voltage) is in the District. He has no formal
and minor prior work experience in blueprint reading. He only occasionally read blueprints
carrying out his duties and responsibilities for the District. He was not directly evaluated on
Facts Giving Rise to the Instant Dispute
In spring 2002, the District experienced a financial short fall. This prompted a
review of all
positions in the District in order to stay within budget. The District made a decision to
position in Maintenance in the least critical area, Fields & Grounds.
On or about April 18, 2002, the Grievant was given an official notice of full layoff
employment with the District that stated:
. . .
Due to declining enrollment and budget considerations, your
position as groundskeeper in the
Sheboygan Falls School District has been eliminated. You are hereby laid off from your
the end of the workday on June 14, 2002. Please review your contract or contact your union
representative so you are aware of your rights under the collective bargaining agreement.
. . .
On April 24, 2002, the Grievant submitted a letter to the Business Manager stating:
to exercise my seniority bumping rights according to the contract Section XV.
displace an employee with less seniority.
On April 25, 2002, Riter responded to the Grievant's request as follows:
. . .
We have received your request to exercise your "bumping rights"
in accordance with Section XV
of the negotiated agreement. After careful examination of your request, we must inform you
(sic) request is denied. The reason for this denial is that you are not immediately qualified to
the available work.
. . .
The Maintenance Positions at Issue
The District has two distinct types of "Maintenance" positions, as found in the
descriptions. One position description is titled "Maintenance W/Emphasis on Fields &
The second position is titled "Maintenance." The collective bargaining agreement in
simply refers to "Maint. Assistant."
The Grievant has held the position of "Maintenance W/Emphasis on Fields &
the District. He has never held the "Maintenance" position. The person in the "Fields
position has primary responsibility for performing the District's grounds keeping services.
includes "all phases of grounds keeping and maintenance including, but not limited to; lawn
parking lot and sidewalk maintenance and preparation for outdoor athletic events." This also
snow removal, vehicle and playground equipment care and cleaning services. As such, the
in this position generally spends a great amount of time
working outside, rather than working on projects within the school buildings. The
person in this
position is required to possess a high school diploma or its equivalent, but has not been
possess any "trade skills." The Grievant was hired for the "Fields & Grounds" position
based, in part,
on his experience at Gilson Brothers Company which was a lawn and garden manufacturer.
In contrast to the "Maintenance W/Emphasis on Fields & Grounds" position, the
hired individuals into the "Maintenance" position who have skills in a particular specialty
as electrical, HVAC, plumbing, pool maintenance, telephone and computer
Shortly after his hire, Raml encouraged the District to do this type of work "in-house" in
save money." The District hires in this manner as an alternative to contracting this skilled
outside of the District. This has produced substantial financial savings for the District.
A person in the "Maintenance" position provides "assistance and support to the
Manager in all facets of the maintenance responsibilities of the district." The "Maintenance"
"is a highly variable position requiring a flexible and skilled individual with the ability to
many maintenance needs that arise in an extensive physical plant as represented by the
buildings and grounds." A person in the "Maintenance" position is sometimes referred to as
The "Maintenance" position is described as "definitely slanted to the individual
this type of occupation as a skilled trade." The primary performance responsibilities of this
are being able to "perform any and all general operations on building systems, equipment,
furniture, instructional equipment and buildings in general as shall be necessary."
The District hires individuals with specific trade skills because this is how it has
"available work" for each of the "Maintenance" positions. When "Maintenance" positions
opened in the past, the District looked at the specialty area of the last person in the job and
position with a person who had comparable trade skill expertise.
For example, Jeff Weber ("Weber") has worked for the District for ten and one-half
He was first employed as a Custodian 1 and later as a Custodian Fields &
Grounds. While in the
grounds-keeper position, he applied for an open "Maintenance" position, but was turned
because the position was focused on electrical trade skills. Ultimately, another
position was established, this time with a focus on telephone networking. The District hired
for the new "Maintenance" position because of his experience and knowledge of cable
(he had worked for a cable company) and telephones.
Training and Experience of the Grievant and Individuals Subject to
Each Maintenance Assistant is required to "have education or experience that
ability to work with blueprints and technical illustrations of equipment that might be
a building maintenance setting." Lawrence has successfully completed a course at Lakeshore
Technical College in "Blueprint Reading." He also has successfully completed courses in
Fundamentals" and "Computer Systems" at the College. He uses all three of these skills in
electrical and electro mechanic work for the District. His experience and education equates
O'Donnel has a number of certificates that attest to his formal training and experience
to the installation and ongoing service of the HVAC systems, as well as the pool chemical
The Grievant has no formal training in any of the trade skill areas, he has never
studied in an
apprenticeship of any kind, nor has he taken any classes at Lakeshore Technical College, or
Other District Job Offers to the Grievant after
Upon receipt of the layoff notice, Riter offered the next available open custodian
the Grievant. The Grievant turned that offer down. In mid July, 2002, upon the retirement
of the Custodians, the District again offered a Custodian position to the Grievant "at the
higher Custodian 1 rate." He refused. In the beginning of August, 2002, Riter offered the
a combination position consisting of 30% Fields & Grounds, and 70% Custodial 1 rate.
rejected this offer then and at hearing.
RELEVANT JOB DESCRIPTIONS
SCHOOL DISTRICT OF SHEBOYGAN FALLS
POSITION TITLE: Maintenance W/Emphasis on
REPORTS TO: Facilities Manager
LENGTH OF WORK YEAR: 12
BUILDING ASSIGNMENT: As
QUALIFICATIONS: As determined
JOB GOAL: This position
involves work in all phases of grounds keeping and
maintenance including, but not limited to: lawn care, parking lot and sidewalk maintenance
and preparation for outdoor athletic events. During the summer vacation period this
maintenance person will serve as a lead worker and be assigned a crew of student employees
for the purpose of field and grounds care. The individual selected for this maintenance
position shall possess a high school diploma or the equivalent. The selected individual shall
have a demonstrated record of employment stability and reliability as evidenced by past
occupational experience. Additionally, the individual shall evidence an attitude or actual
experience that will indicate suitability to work in a child centered environment. This will
include, but not limited to: appropriate use of language, respect of property, concern for
others, and willingness to assist when needed.
1. Be responsible for preparation of fields, track,
courts and grounds for athletic, extra-curricular, and other public events as necessary.
2. Maintain high standards of confidentiality,
attendance, and flexibility, while working
cooperatively with Supervisors and other employees.
3. Perform maintenance
activities within the area of assignment as shall be deemed appropriate
by the supervisor and shall be within the scope of the individual's skill level or in the case of
maintenance beyond his/her abilities, refer the work to the supervisor.
4. Monitor and maintain in
safe condition all playground equipment, vehicles, grounds
equipment within the scope of item 2 above.
5. Report all incidents of
damage or vandalism to the supervisor.
6. Perform grounds keeping
services including, but not limited to mowing, edging, trimming,
weed control, fertilization, trimming, pruning regular trash pick up. Clean and maintain
pavements and parking areas including sweeping, trash pick-up, minor chuck hole repairs,
crack filling and other similar services.
7. Perform snow removal services as warranted and
as shall be assigned by the supervisor. In
addition, monitor and maintain walkways and parking areas in as snow and ice free a
condition as reasonably possible on a daily basis.
8. Serve as part of cleaning or
maintenance crews during school vacation periods and holiday
periods as assigned by the supervisor. During the summer vacation period, serve as the lead
worker and be assigned student helpers for fields, courts, and grounds maintenance and other
work as shall be assigned by the supervisor.
9. Report all unsafe and/or
unhealthy conditions in his/her area to the facilities manager.
10. Provide services as a
substitute custodian as assigned by the supervisor in the absence of other
11. Shall be able to lift 50 lbs.
in a repetitive situation and work from stepladder at a height of 10
ft as well as from aerial lifts or scaffolding.
12. Other responsibilities related
to the position as shall be assigned by the employee's supervisor.
. . .
POSITION TITLE: Maintenance
REPORTS TO: Facilities
LENGTH OF WORK
YEAR: 12 Months
JOB GOAL: The maintenance
position in the district involves providing assistance and
support to the Facilities Manager in all facets of the maintenance responsibilities of the
As such, the position is a highly variable position requiring a flexible and skilled individual
with the ability to meet the many maintenance needs that arise in an extensive physical
plant as represented by the
district's buildings and grounds. The individual in this
position must possess a wide range of skills necessary as a building maintenance generalist.
Working under varied conditions with time pressures and high work load is a regular part of
this job. The individual selected for this position shall possess a high school diploma or the
equivalent. The selected individual shall have a demonstrated record of employment stability
and reliability as evidenced by past occupational experience. Additionally, the individual
evidence an attitude or actual experience that will indicate suitability to work in a child
centered environment. This will include, but not limited to: appropriate use of language,
respect of property, concern for others, and willingness to assist when needed. This position
is definitely slanted to the individual committed to this type of occupation as a skilled
1. Perform any and all general maintenance
operations on building systems, equipment, vehicles,
furniture, instructional equipment and buildings in general as shall be necessary. Such work
shall be performed in cooperation with the Facilities Manager or singularly as the situation
and demands warrant. The limits of responsibility shall be governed by the individual's
2. Maintain high standards of confidentiality,
attendance and flexibility, while working
cooperatively with Supervisors and other employees.
3. The person selected should
have education and or experience that evidences an ability to
work with blueprints and technical illustrations of equipment that might be encountered in a
building maintenance setting.
4. Participate in snow removal
activities as the situation shall warrant and as he/she shall be
5. Maintain tools and
equipment as shall be utilized in the maintenance functions of the district.
6. Participate in and/or
perform preventative maintenance activities on any and all district
building systems and equipment as shall be necessary under the direction of the Facilities
7. Function as a substitute custodian when a regular
custodian is unavailable and needs warrants.
This shall be at the discretion of the Facilities Manager.
8. Shall report all
unsafe/unhealthy conditions observed on the buildings and grounds of the
district to his/her respective supervisor.
9. Shall be able to lift 50 lbs.
in a repetitive situation and work from stepladder at a height of 10
ft as well as from aerial lifts or scaffolding.
10. All other maintenance
functions and tasks as shall be assigned by his/her supervisor.
11. Other responsibilities related to the
position as shall be assigned by the employee's supervisor.
This agreement is made and entered into by and between the
Sheboygan Falls School District,
hereinafter referred to as the "Employer" and the Sheboygan Falls Educational Support
Association, hereinafter known as the "Association" for the purpose of maintaining
relations; to establish a uniform scale of wages, hours, and working conditions; to assure the
and economical operations of the District; to secure and sustain maximum productivity of
employee; to facilitate a peaceful adjustment of all grievances and disputes which may arise
the employer, employees, and the association; and further to set forth the entire agreement
the employer, the association, and the employees covered by this agreement.
Any previously adopted policy, rule or
regulation of the parties which is in conflict with a
provision of this agreement shall be superseded by this agreement. Furthermore, unless
set forth herein, past practices of any kind whatsoever, are hereby discontinued.
Whenever this agreement requires the
District Administrator to take any action, said District
Administrator, upon notice to the Association, may designate another to take such required
. . .
IV. BOARD OF EDUCATION
The Board of Education possesses the sole right to operate the
School District and all
management rights repose in it. These rights include, but are not limited to, direction of all
of the School District; establishing of work rules and schedules of work; the creation,
modification, and elimination of positions within the School District; hiring, promoting,
scheduling, and assigning of employees in positions within the School District; the right to
demote, discharge and/or take other disciplinary action against employees; to layoff
maintaining the efficiency of School District operations; taking whatever action is necessary
comply with Federal or State law; introduction of new or improved methods or facilities;
of existing methods or facilities; determining the kinds and amounts of services to be
pertains to School District operations, and the number and kind of classifications to perform
services; contracting out for goods and services; determining the methods, means, and
which School District operations are to be conducted; and to take whatever action is
carry out the functions of the School District in situations of emergency.
In the execution of the powers, rights,
authority, duties and responsibilities of the Board, the use
of judgment and discretion in connection therewith shall not be exercised in an arbitrary or
manner nor in violation of the terms of this agreement, section 111.70 of Wisconsin Statutes
violation of the Constitution of the State of Wisconsin and the United States.
. . .
Seniority shall be accrued by classification. Classification shall
be defined as: secretarial/clerical
employees; food service employees; instructional and clerical aides; maintenance employees;
custodial employees. Separate seniority lists within classifications shall be maintained for
and school year employees. Employees transferring to a new classification shall retain
the former classification and will begin to accrue seniority in the new classification. No
accrue until an employee completes the designated probationary period. Upon satisfactory
completion of the probationary period the employee shall be credited with seniority from the
most recent hire. Seniority for part-time full year and school year employees
shall accrue on a prorated basis according to
the number of normally scheduled hours worked
using the actual percentage as compared to full time, full year employment.
. . .
A. LAYOFF: When laying off employees, the last person
hired in a classification shall be the first person
laid off, provided that those retained are immediately qualified to perform the available
An employee who has transferred from one classification to another and who is laid off in
current classification has the right to displace an employee with less seniority in his/her
original classification, provided he/she is qualified to perform the duties.
. . .
POSITIONS OF THE
The Grievant was not the least senior Maintenance Assistant on the date he received
The Grievant is immediately qualified for the remaining available work based upon
job descriptions and his prior work experience.
The Grievant had bumping rights that should have been honored by the District. This
is really over what is meant by the words "immediately qualified." The District's
"immediately qualified" to mean "exactly qualified" is in error and at odds with its past
not requiring an employee to have the exact qualifications for a position that he/she is filling.
The language in Article XV contains a "sufficient ability" modified seniority clause.
analysis needed for such language is to determine whether the Grievant meets the minimum
qualifications necessary for a Maintenance Assistant.
The bumping language relied upon by the District in J & J Burning Co., 111 LA
(Kelman, 1998), "ability to perform the work operation in question," is very different from
disputed language "immediately qualified." It is a very objective standard; can the
work be performed or not. The disputed language in the instant case is very
subjective. J & JBurning Co. cannot be used to justify a subjective decision in this
The "Maintenance" job description states that the person employed must be a
generalist" and "perform any and all general maintenance operations." Nowhere does it say
hold specialized trade skills. These employees have not been evaluated on their "trade
Bargaining history supports the Union's interpretation of the disputed contract
the first place, the bargaining history relied upon by the District has nothing to do with
Secondly, the layoff language (Article XV) has not changed since the initial collective
agreement was negotiated in 1983. If the District believes that the parties to the agreement
accepted the "practice" of hiring individuals with trade skills for "Maintenance" positions,
this practice been codified through changes in either the job description or the agreement.
The Union is not attempting to expand the scope of the language in this proceeding.
seeks a determination as to whether the District violated the contract by its actions.
The Grievant has no duty to mitigate his damages because he is entitled to an answer
question raised in his grievance as to whether the District violated the agreement.
The Grievant should be reinstated and made whole for all lost wages and benefits.
The Arbitrator should enforce the clear and unambiguous contract language. The
bargaining agreement establishes that the District retains the exclusive right to determine the
make up of the workforce, including the right to determine the number of employees for
classification required for the work available, and the kinds and amounts of services to be
The agreement also contains a clear layoff provision providing that those retained
"immediately qualified" to perform the available work. The Grievant was not "immediately
for the disputed position(s) because he was not able to perform the available work at the time
Both bargaining history and past practice regarding the process of promotion from
"Maintenance W/Emphasis on Fields and Grounds" to "Maintenance" confirm the clear
the contract. In this regard, the District points out that it rejected a bargaining proposal that
perceived would weaken the "immediately qualified" language. The District
also notes that at least one other District employee in the "Maintenance W/Emphasis
on Fields and
Grounds" has been rejected for an open "Maintenance" position based upon lack of a specific
skill. There is no past practice that negates the "immediately qualified" language.
The Union should not be able to gain through arbitration what it was unable to gain
negotiations between the parties.
Case law supports the District's interpretation of the disputed contract language.
the cases cited by the Union are applicable to the instant dispute.
The Grievant has a duty to mitigate his damages, but failed to do so.
Accordingly, the instant grievance must be denied.
At issue is whether the District violated the collective bargaining agreement when it
The District argues that the Arbitrator should enforce the specific contract language
controls the parties actions in the event of a layoff. For the reasons discussed below, the
Article XV. LAYOFF-RECALL, provides: "A.
LAYOFF: When laying off employees, the
last person hired in a classification shall be the first person laid off, provided that
those retained are
immediately qualified to perform the available work." (Emphasis in the Original).
According to this
language, layoff occurs by seniority in classification, except that the District has the right to
less senior individual who is immediately qualified to perform the available work, when a
employee is not. A question arises as to what is meant by the words "immediately
The District argues that the "immediately qualified" contract language is clear and
unambiguous and requires that the Grievant be able to perform the job in its entirety at the
layoff. The Union, on the other hand, argues that the District's interpretation of these two
in error. According to the Union, the only analysis needed for such language is to determine
the Grievant meets the minimum qualifications necessary for a Maintenance Assistant.
Arbitrators give words their ordinary and popularly accepted meaning in the absence
anything indicating that they were used in a different sense or that the parties intended some
colloquial meaning. Elkouri and Elkouri, How Arbitration
Works, (BNA, 5th Ed., 1997), p. 488. In
the Arbitrator's opinion, immediately is ordinarily understood to mean "right away."
means the ability to do a job.
This is consistent with the dictionary definition of the terms. Immediately is defined
"directly" or "without delay." The American Heritage
Dictionary, Second College Edition, p. 643
(1985). Qualified is defined as "competent, suited, or having met the requirements for a
position or task." The American Heritage Dictionary,
supra, p. 1013. Therefore, a person who is
retained must immediately and without delay be competent and qualified to perform the
work. This definition of "immediately qualified" is closer to the definition submitted by the
than the one put forward by the Union.
The District argues that the language interpreted by the arbitrator in J & J
Burning Co., 111
LA 665, 667 (Kelman, 1998), "ability to perform the work in question," is
similar to the disputed
language "immediately qualified." In J & J Burning Co., supra,
Arbitrator Kelman reviewed the
aforesaid language in the context of an employee attempting to bump upward in a layoff
In finding that the employee could not immediately perform the disputed work, Arbitrator
stated as follows:
The central question, then, is whether Mr. Burns was qualified to
perform as an inspector.
Ability to perform the work in question' refers to the candidate's current
ability to handle all phases
of the job. In a bumping situation it is not enough that the senior employee has the potential
master the job with further training or close and continuous supervision or lengthy hands-on
experience. He must be able to step in at once and handle the job in its entirety.
In reaching this conclusion, Arbitrator Kelman found that
is a distinction between
upward bumping and promotion obtained by job bidding." Arbitrator Kelman noted that
contract "a promoted employee enters the higher classification under a six
months probation period
during which he can be returned to his previous classification at the Company's unfettered
and without recourse to the grievance procedure. On the other hand, no employees who
upward into the inspector position were "assigned probationary or trainee status. It was
they could hit the ground running."
There is a similar contractual distinction in the instant case. Article XV.
LAYOFF-RECALL provides that during a layoff "that those
retained are immediately qualified to perform the
available work." (Emphasis added). In other words, any employee retained in a layoff
have the current ability to perform the available work. (Emphasis added).
Article XIII. SENIORITY provides, on the other
hand, for employees transferring to a new
classification that "no seniority shall accrue until an employee completes the designated
Contrary to the Union's assertion, the words "immediately qualified" provide a very
standard upon which to judge an employee's ability to do a job. Like the standard in J
& J Burning
Co., supra, it means the current "ability to
perform the work operation in question." Such an
interpretation is consistent with the District's practice of requiring an employee who bumps
of layoff "to hit the ground running" in his or her new job. It is also consistent with the
practice of requiring persons who fill "Maintenance" positions to have some trade skills and
"immediately" able to perform the available work.
The Union rejects the District's reliance on the bumping language in J & J
Burning Co. to
interpret the disputed language "immediately qualified." Instead, the Union maintains that
language in Article XV contains a "sufficient ability" modified seniority clause. The Union
that the only analysis needed for such language is to determine whether the Grievant meets
minimum qualifications necessary for a Maintenance Assistant.
The Arbitrator agrees with the Union that the bumping language in question is more
"sufficient ability" modified seniority clause than a "relative ability" or a "hybrid" modified
clause. Elkouri and Elkouri, How Arbitration Works,
supra, pp.838-841. It is also true that
minimum qualifications are usually enough under a "sufficient ability" clause. Elkouri and
How Arbitration Works, supra, p.
839. This type of clause may state that preference will be given
to the senior qualified bidder, or to the senior employee provided he or she is qualified or
"necessary" ability for the job. Id. Under this type of
provision, "it is necessary to determine only
whether the employee with the greater seniority can in fact do the job."
However, even if the Arbitrator applies the above standard, for the reasons discussed
the Union has not shown that the Grievant can perform the disputed work.
In addition, the parties did not include this type of language in the agreement. They
agree that an employee could bump another employee in lieu of layoff if he or she was
had the "necessary" ability for the job. Instead, they agreed that the employees retained
layoff must be "immediately qualified to perform the available work."
(Emphasis added). This is a
much higher and more demanding standard than the usual "sufficient ability" clause.
If the parties had intended that employees who are retained during a layoff meet only
minimum qualifications necessary to perform the duties of the work in question,
the parties could
have clearly stated so in the contract. (Emphasis added). In fact, the parties have shown
are able to use the word "qualified" when they want to. The second sentence of
Article XV, Section
An employee who has transferred from one classification to
another and who is laid off in the
current classification has the right to displace an employee with less seniority in his/her
classification provided he/she is qualified to perform the duties. (Emphasis
The fact that the word "immediately" was used before the word "qualified" in the
sentence of Article XV, Section A indicates that the parties intended the phrase to have some
meaning other than just "qualified." Elkouri and Elkouri,
supra, p. 495. It should not be declared
surplusage if a reasonable meaning can be given to it consistent with the rest of the
The District's interpretation of "immediately qualified" gives meaning to all words in the
and is consistent with the rest of the contract. As noted above, it is also consistent with the
practice of filling unit positions during layoff and of filling the "Maintenance" position itself.
The Arbitrator rejects the Union's reliance on a number of cases it cites to
'sufficient ability' clauses must be applied."
In Kingsbury Homes Corp., 53 LA 1347 (Rauch, 1969), Arbitrator
. . . the phrase, 'if qualified', . . . does not necessarily
the Company to select the most
qualified bidder regardless of seniority . . . . (T)he phrase must be construed to
mean that the senior
employee must have a background of such training, experience, or demonstrated aptitude . .
. as to
give a reasonable person cause to believe that this person can be expected to perform the job
competently within a reasonable time.
However, Kingsbury Homes Corp., involved a promotional
opportunity and based on the analysis
of the arbitrator in J & J Burning Co., is not applicable to the instant
City School District of City of New York, 68 LA 271 (Nicolau,
1976) involved the
layoff of school neighborhood workers due to budget concerns. In that case, the School
improperly failed to consider the qualifications of laid off senior school neighborhood
it retained less senior employees during layoff because they had "exceptional qualities" for
in question. City School District of City of New York, supra,
p. 275. The arbitrator found that these
"exceptional qualities" or abilities that fell outside the job
description could not be used as a basis for retention out of seniority, and "ability" alone was
contractually irrelevant if a more senior employee could also do the job. City School
City of New York, supra, pp. 275-276. However, in the instant
case, the District did consider the
qualifications of the Grievant when it determined that he could not perform the duties of the
question. (Testimony of Raml and Riter). For example, the District required skills in
reading and the skilled trades areas for the Maintenance position not only in the job
in practice. (Testimony of Raml and Riter; Joint Exhibit No. 4). These were skills
lacked. For these reasons, the Arbitrator rejects the Union's reliance on City School District
ofCity of New York, supra.
The Arbitrator also rejects the Union's reliance on several Wisconsin cases.
In Sheboygan County, Case 231, No. 50495, MA-8271 (Gallagher, 10/94), the
reviewed a case where the collective bargaining agreement required a vacant position to be
internally before external applicants were sought, and required the employer to award the
position to the senior "qualified" applicant. Sheboygan County,
supra, p. 2.
The arbitrator found that the grievant "was minimally qualified for the Secretary II
and therefore she should have been awarded the position." Sheboygan County,
supra, p. 9. She
concluded that the language was mandatory in nature because it required that a vacant
then be offered to the most senior qualified bargaining unit employee
before filling the position with
a non-bargaining unit employee." (Emphasis in the Original). She determined that said
"clear and unambiguous" and required that the successful internal applicant be the most
"be minimally qualified before he/she is entitled to placement in the vacant position, with a
month probationary period."
However, Sheboygan County is not applicable to the instant dispute based on the
in J & J Burning Co. This is not a posting or promotional opportunity like Sheboygan
It is a layoff and bumping dispute. The employee who is retained in lieu of layoff must be
perform the job in question at the time of layoff. Unlike SheboyganCounty,
there is no
probationary period involved during which the employee can learn the job. As noted above,
standard of "immediately qualified" is a higher standard to meet than simply "qualified" as
by Arbitrator Gallagher in Sheboygan County.
For the same reasons, the Arbitrator rejects the Union's reliance on City of
514, No. 54826, MA-9803 (Houlihan, 3/98) and Lake Holcombe School
District, Case 47, No.
45838, MA-6775 (McGilligan, 2/92). City of Racine involved a promotional opportunity.
question underlying the dispute in City of Racine was whether or not the
grievant was capable of performing the duties of the job in question. The arbitrator
found that the
grievant was arguably "qualified" for the position particularly since "historically individuals
have had meaningful training and an opportunity to learn facets of the job while on the job."
of Racine, supra, p. 10. The arbitrator added that this was "not
a situation where an employee
lacking the fundamental job-required skills has applied for the promotion."
That is not true in the instant case. The District requires certain skills in blueprint
the skilled trades in these positions that the Grievant simply does not possess. These are
vital to the
health and safety and the economic welfare of the District. (Testimony of O'Donnell,
Raml, and Riter). In addition, an employee bumping into one of these positions is expected
the ground running." He does not have time to learn the job. (Testimony of Timothy Sass,
O'Donnell, Raml and Riter).
Likewise, the Arbitrator rejects the Union's reliance on Lake Holcombe School
That case involved a dispute over a partial layoff. The collective bargaining agreement
A teacher whose position is eliminated shall either be
to a vacant position for
which he/she is qualified and certified, or replace the teacher with the lowest seniority
within the school system in the area in which the teacher whose position is eliminated is
certified at the time of the layoff notice.
The arbitrator concluded that the grievant had a right to bump into a Distance Learning
Class in order
to avoid a partial layoff because she was both "qualified and certified for the position
at the time of
the layoff notice." (Emphasis added). The Union, however, misstates the Arbitrator's
arriving at that conclusion.
The agreement defined "qualified" as "having taught at least one course for one
within the past five years in the area of certification in the Lake Holcombe School District."
Holcombe School District, supra.
The District there argued that when the definition of "qualified" was applied to the
it was apparent that the parties did not intend to provide bumping rights for positions where
specific certification was required. (Emphasis added). Based on the above
contract language defining
"qualified," and the record evidence, the arbitrator found "no persuasive evidence that the
'qualification' test becomes inoperable when dealing with areas where specific certification is
required." Lake Holcombe School District, supra. The
position in question did not require any
specific certification but it did require, contrary to this
Union's assertion that there were no specific requirements for the disputed position,
that a certified
teacher perform its duties. The arbitrator concluded since there is "no specific
requirements in this area, it follows that all teachers who are certified in any area and have
any area in the last five years for the District would be qualified to teach the distance
(Emphasis added). In reaching this conclusion, the Arbitrator simply applied the definition
"qualified" contained in the agreement (and noted above) to the record evidence to obtain the
The Union opines that Lake Holcombe School District "supports the idea that in this
the Arbitrator should give meaning to the employee protections included in the
clause where an employee subject to layoff possesses the minimum qualifications for an
position." However, the arbitrator in Lake Holcombe School District reached his decision
on the contract language that expressly defined what was meant by the term "qualified," and
record evidence. The language in dispute herein does not provide that a senior employee
qualified or has "the minimum qualifications" for a job may avoid layoff. It requires that
employee be "immediately qualified" to perform the available work. The Arbitrator's
Lake Holcombe SchoolDistrict was based on very different contract
language and is inapplicable
to the instant dispute.
The Union argues, however, that the Grievant was "immediately qualified to perform
Contrary to the Union's assertion, Union Exhibit No. 3 is the official seniority list.
(Testimony of Julie Metz). It states that Lawrence is the least senior "Maintenance" person.
Lawrence has had specific training and experience in electronics and Commercial Electrical
The majority of his time is spent on electrical service maintenance related to the security
System and repair of A/V equipment. (District Exhibit No. 2; testimony of Lawrence).
and Raml looked at whether or not the Grievant was immediately qualified to
perform the work that
Lawrence was doing, they concluded he was not "immediately qualified" to perform the
work." (Emphasis supplied). The record evidence supports this conclusion. For example,
Exhibit No. 1 indicates that the majority of the Grievant's work with electrical systems is of
unskilled or low-skilled variety like running or pulling wire and the replacement of light
Grievant admitted that his electrical work involved a lot of Helper-type work. In contrast,
does most of the skilled and high voltage electrical work in the District. (Testimony of
Raml). He uses his blueprint reading skills in much of his electrical work. Id.
blueprint reading skills are minimal. (Testimony of the Grievant, Union Exhibit Nos. 1 and
District would not be able to assign the Grievant Lawrence's electrical work for fear that it
put students and staff at risk. (Testimony of Raml and Riter). Unlike Lawrence, the
Grievant did not
have any formal training or experience in
Audio/Visual Electronic Repair or specific training in the commercial electrical wiring,
service of the security system. (Testimony of Raml). The Union argues that because the
CESA to provide audiovisual equipment was terminated on July 1, 2002, ten weeks after the
was given his layoff notice, the task of audiovisual equipment repair is irrelevant to the
of whether he was "immediately" qualified. Lawrence testified that he started doing
equipment repair at the end of the school year. The Union raises a good point that the
ability, or lack thereof, to do repair of audiovisual equipment was not relevant at the time of
layoff. It would be relevant, however, if the Arbitrator decided to reinstate him.
Union witness Timothy Sass ("Sass") testified that he thought the Grievant could
of the jobs that needed to be done" but that there was certain work, like HVAC, that the
could "not immediately do." The Grievant also couldn't "immediately" do certain work on
protection or security system or the higher level electrical work. (Testimony of Lawrence
However, the contract language in question requires that the person retained (through the
process as well as through bumping) be immediately qualified. (Emphasis
supplied). The Grievant
could not "immediately" step into Lawrence's job and perform many of its essential duties.
The Union opines that O'Donnell has less seniority than the Grievant. As pointed out
District, assuming arguendo the Grievant could bump
O'Donnell, he is not immediately qualified for
that position either.
O'Donnell has considerable training and experience (formal apprenticeship level
both the installation and servicing of heating, ventilating, and air conditioning (HVAC)
(District Exhibit 1, Testimony of O'Donnell and Raml). His skill allowed him to supervise
installation of the System in the District. (Testimony of Raml). He is the main individual
access to the upper levels of the System for ongoing programming/service. (Testimony of
O'Donnell). The Grievant does not, and did not at the time of the layoff, possess the
or experience required to perform the ongoing programming and services maintenance
the upper levels of the System. (Testimony of the Grievant). O'Donnell spends a substantial
of the workday in the ongoing maintenance of the HVAC systems.
In addition to the HVAC maintenance, O'Donnell performs chemical maintenance for
District's two year old swimming pool. O'Donnell has the proper training through a
process and ongoing experience to successfully maintain the proper chemical balance in the
(Testimony of O'Donnell). This is necessary for public health reasons.
Id. The "Grievant was not
now or in June qualified to do maintenance on the pool or the Robert Shaw system," but he
learn to do that type of work. Id.
Based on the above, the Arbitrator finds that the Grievant could not "immediately"
O'Donnell's job and perform its essential duties.
The Union argues, contrary to the above result, that the "Maintenance" job
states that the person employed must be a "maintenance generalist" and "perform any and all
maintenance operations." The Union adds that there is no mention that they must hold
trade skills. However, the position description states that "This position is definitely slanted
individual committed to this type of occupation as a skilled trade." (Joint Exhibit No. 4).
no such reference in the "Maintenace W/Emphasis on Fields & Grounds" job
"Maintenance" job description also makes several references in its "JOB GOAL" section to
that this "is a highly variable position requiring a flexible and skilled individual"
and "the individual
in this position must possess a wide range of skills necessary as a building
(Emphasis added). The "Maintenance W/Emphasis on Fields & Grounds" job
no such references. Finally, the "Maintenance" job description also states that a person
this position "should have education and or experience that evidences an ability to work with
blueprints and technical illustrations of equipment that might be encountered in a building
maintenance setting." There is no such performance responsibility in the "Maintenance
on Fields & Grounds" job description. Contrary to the Union's assertion, there are
between the two job descriptions. Based on these different job descriptions, employees in the
"Maintenance" and "Maintenance W/Emphasis on Fields & Grounds" job descriptions
different types and skill levels of work, normally work in different areas (inside and outside)
evaluated on these differences as well. (Testimony of the Grievant, Weber, Raml and Riter).
The District hires qualified individuals with trade backgrounds in order to perform
pool maintenance, ongoing HVAC maintenance/service, or general boiler maintenance
job) and commercial electrical wiring service or the electronics repair of the audio visual
security equipment and computer equipment (Lawrence's job) in a safe and cost effective
For over a decade, the District has hired individuals with these specific trade skills for each
"Maintenance" positions. Article IV of the agreement provides that the District expressly
exclusive right to determine the methods, means, and personnel by which School District
are to be conducted; to determine the kinds and amounts of services to be performed as
School District operations; and the number and kind of classifications to perform such
There is no contractual or other restriction on the District's ability to define the parameters
The Union also argues that in the past the District has not required an employee who
a less senior employee or was recalled from layoff to possess all the skills required of
the new job. The Union points out that in the spring of 2001 laid off Clerical Aide
Rae Ellen Weber
had more seniority than an Instructional Aide who was not laid off. She was allowed to
Instructional Aide if she could obtain her license from the DPI. (Testimony of Sass)
the Union, she was not "exactly qualified" for the position she bumped into at the time of
However, Sass did not testify regarding what was necessary in order for Weber to obtain her
from DPI, i.e. was obtaining proper certification a mere formality or was something more
Nor did he testify that Weber was not "immediately qualified" to perform the available work
time that she bumped an Instructional Aide. The District asserts that the individuals who
bumped in the past have been "immediately qualified" to perform the available work at the
the bumping. The District further asserts that Aides like Weber may be "qualified" before
certification, in the sense that they have demonstrated the ability to perform educational aide
in the classroom. The record does not provide a clear answer as to how Weber was able to
the "immediately qualified" standard in Article XV, Section A and bump into an Instructional
position. Therefore, the Union has not established a past practice with the Weber bumping
would allow the Grievant to negate the "immediately qualified" language.
A similar situation arose in 2002. The District eliminated most Library Clerk
the schools. Library Clerks and Secretaries share the same job classifications. One of the
Clerks who was laid off was recalled to a secretarial position when it became available, as
by Article XV. The Union claims that she was recalled even though she was not "exactly
for the secretarial position, having never worked in an office setting and not knowing the
routine. However, Riter testified that she had the necessary skills for the job including a
voice, greeting demeanor and had accounts payable experience, all helpful for that position.
According to Riter, she could "immediately" step into the job and perform its duties unlike
Grievant herein. If the Grievant was put into Lawrence's position and "immediately"
perform his duties, this would pose an "unacceptable risk to staff and children." (Testimony
The Union asks: if the District believes that the parties to the agreement have
"practice" of hiring individuals with trade skills for "Maintenance" positions, why hasn't this
been codified through changes in either the job description or the collective bargaining
In fact, Article I, paragraph two provides that "unless specifically set forth herein, past
any kind whatsoever, are hereby discontinued." The Union correctly points out that if a past
exists with respect to the specific manner in which the District fills "Maintenance" positions
practice ought to be formally recognized in the agreement or it runs the risk of being in
Article I, paragraph two.
Past practice is not the issue herein. A past practice, to be binding on the parties,
must be (1)
unequivocal; (2) clearly enunciated and acted upon; (3) readily ascertainable over a
reasonable period of time as a fixed and established practice accepted by both parties.
Elkouri, supra, p. 732. The Union correctly points out that it
has never accepted the District's
"practice" of filling "Maintenance" positions with individuals having a skilled trade
The District's method of filling "Maintenance" positions does not rise to the level of
practice enforceable by mutual agreement, but instead simply is an exercise of its managerial
discretion. The difference between past practice and this kind of managerial decision-making
explained by Arbitrator Harry Shulman, Ford Motor Co.- United Automobile Workers,
A-278, September 4, 1952; reported at 19 LA 237 (1952). Shulman explained the difference
A practice, whether or not fully stated in writing, may be the
result of an agreement or mutual
understanding. And in some industries there are contractual provisions requiring the
unnamed practices in existence at the execution of the collective agreement. (There are no
provisions in the Ford Agreement or in those of the automobile industry generally.) A
based on mutual agreement may be subject to change only by mutual agreement. Its binding
is due, however, not to the fact that it is past practice but rather to the agreement in which it
But there are other practices which are not
the result of joint determination at all. They may
be mere happenstance, that is, methods that developed without design or deliberation. Or
be choices by Management in the exercise of managerial discretion as to convenient methods
time. In such cases there is no thought of obligation or commitment for the future. Such
are merely present ways, not prescribed ways, of doing things. The relevant item of
not the nature of the particular method but the managerial freedom with respect to it. Being
product of managerial determination in its permitted discretion, such practices are, in the
contractual provisions to the contrary, subject to change in the same discretion. . . . But
there is no
requirement of mutual agreement as a condition precedent to a change of a practice of this
Ford Motor Co., supra, pp. 241-242.
As noted above, the District is not contractually prohibited from filling the
in the manner that it has chosen. Nor is there any evidence that the District acted in an
capricious manner when it decided that the Grievant was not "immediately qualified" to
remaining available work.
Based on all of the above, the Arbitrator finds that the answer to the issue as framed
Union is NO, the District did not violate the collective bargaining agreement when it laid off
In reaching the above conclusion, the Arbitrator has addressed the major arguments
parties. All other arguments, although not specifically discussed above, have been
reaching the Arbitrator's decision.
Based on all of the foregoing, and the entire record, it is my
That the grievance filed in the instant matter is denied and the matter is dismissed.
Dated at Madison, Wisconsin, this 3rd day of March, 2003.