BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL OF COUNTY AND MUNICIPAL
ST. CROIX COUNTY, WISCONSIN
Mr. Steve Hartmann, Staff Representative,
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box
364, Menomonie, Wisconsin 54751, appearing on behalf of Wisconsin Council of County
Municipal Employees, A.F.S.C.M.E, AFL-CIO, which is referred to below as the Union.
Mr. Stephen L. Weld, Weld,
Riley, Prenn & Ricci, S.C., Attorneys at Law, 3624 Oakwood Hills
Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of
County, Wisconsin, which is referred to below as the County.
The Union and the County jointly requested that the Wisconsin Employment
Commission appoint Richard B. McLaughlin, a member of its staff, to act as Arbitrator to
grievance filed on behalf of Diane Northrup. The parties stipulated that the grievance affects
agreements covering the General Government Support Services and the Human Services
Non-Professional bargaining units, and that the grievance should be treated as common to
Hearing on the matter was conducted on June 30, 2003, in Hudson, Wisconsin. The parties
opening and closing arguments at the hearing, and discussed whether I should issue a bench
The parties agreed that the decision should be issued in writing, as soon as practicable
close of the hearing.
The parties stipulated the following issues for decision:
Did the County violate the Collective Bargaining Agreement
when it refused to pay a third
employee representative to attend bargaining sessions, the third employee being the alternate?
If so, what is the appropriate remedy?
ARTICLE 23 - DURATION
. . .
Section 23.04 Bargaining Representatives. The
County shall be represented by a committee
and/or representative(s) of its choice. In addition to any designated AFSCME staff
the Union shall be represented by two (2) employee representatives and one (1) alternate.
Bargaining meetings shall be scheduled by
mutual agreement of the County and the Union,
to commence between the hours of 9 a.m. and 2 p.m. and shall conclude at such time as
desires to do so. Authorized employee representative(s) as defined herein shall be paid their
day's pay if bargaining occurs during their usual work schedule.
No overtime payments will be made on
negotiation days except for time spent performing
Diane Northrup filed the grievance form, dated October 23, 2002, that was submitted
evidence. The form states the alleged violation thus: "Employer refuses to allow 2
plus 1 alternate on paid time at contract negotiations." The form seeks that the County
PTO time used for negotiations and make employee whole."
Debra Kathan is the County's Personnel Director, and responded to the grievance
It is the County's contention that its obligation for the
of wages to union members
engaged in active bargaining is limited to two employees. If one of the two designated union
members cannot attend the bargain and an alternate is sent as a substitute, the County will
for wage payments for that person assuming that the situation meets the requirements
set forth in
Kathan and Janet Smith, the President of Human Services Non-Professional bargaining
at the arbitration hearing.
Smith has been a County employee for ten years, and has served the Union as
as Chief Steward during her tenure. She was one of two Union designated representatives
bargaining for a 2000-2002 labor agreement. The predecessor to that agreement was a
"Joint Labor Agreement." The two units covered by the grievance were part of a joint
committee that negotiated the Joint Labor Agreement. The bargaining for a successor to the
1997-1999 Joint Labor Agreement was done on a unit-by-unit basis.
The first paragraph of Section 23.04 of the 1997-1999 Joint Labor Agreement reads
The County shall be represented by a committee and/or
representative(s) of its choice. In
addition to any designated AFSCME staff representative(s), the Union shall be represented
by up to
two (2) employee representatives per bargaining unit.
The second and third paragraphs of Section 23.04 in the Joint
Labor Agreement are the same as the
corresponding sections in the agreements covering the two units affected by the grievance.
During the course of bargaining the 2000-2002 labor
the parties discussed altering
Section 23.04 of the Joint Labor Agreement to reflect unit-by-unit bargaining. The Union
that the section be amended to permit the Union to designate an alternate representative.
reviewed the bargaining notes taken by Kim Dupre, a member of the Union's team. Smith
that the notes detail a dialogue between Smith and the Union's Vice-President, who
whether the alternate would be an unpaid member of the team. Smith, in the presence of
representatives, answered in the negative to highlight that all three team members would be
status during negotiations. She could not recall if an alternate attended any of the bargaining
for the 2000-2002 agreement, and could not recall any prior cases in which the County paid
than the two members designated by the Union as representatives at the start of bargaining.
the County's legal counsel nor any AFSCME representative were at the table when the
to the revision of Section 23.04. The County prepared the tentative agreements.
Smith noted that the Union's proposal sought to make it possible to have the alternate
representative function as a note-taker if the two named representatives were present. From
perspective, if the alternate did not attend the sessions, then the alternate could not
for a representative. This function was not significant during the negotiation of the Joint
Agreement since the bargaining team was large enough to provide spokespersons and
Smith believes the Union supplied Dupre's notes to Kathan.
Kathan has served as Personnel Director since 1981, and has attended all bargaining
during her tenure. She testified that she appeared as the County's spokesperson for the
labor agreement. The Union and the County discussed the alteration of Section 23.04 to pare
the eleven person bargaining team that negotiated the Joint Labor Agreement. At the
of the bargaining process, each party identified the members of its negotiating team. When
discussed the alteration of Section 23.04, the Union sought to create an alternate. The
questioned what the alternate would do, and understood the Union's response to indicate that
of an alternate in the negotiation of separate labor agreements would reflect the past practice
negotiation of a Joint Labor Agreement, in which a substitute would fill in for a named
who was unable to attend a bargaining session. Kathan and the Personnel Committee did not
understand the discussion to reflect a Union demand for payment for the alternate, or to
size of the Union's bargaining team.
Kathan stated that she could not recall formally receiving a copy of the
Union's notes, and
that she could not recall the conversation between Smith and the Vice-President as recorded
Dupre's notes. The Union may have supplied those notes to the County during the
processing of a
grievance unrelated to that posed here. None of her committee members understood the
proposal to demand expansion of the Union's bargaining team or payment of an alternate
alternate was substituting for a named team member.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Arguments
The Union contends the grievance is simple and straightforward. In the last round of
collective bargaining, the parties went from a coordinated bargaining system in which
bargaining units negotiated a master agreement to a system where each bargaining unit
its own labor agreement. In making the change to the first paragraph of
Section 23.04, the parties
agreed to use "and", which clearly and unambiguously enlarges the committee from two to
members beyond any AFSCME representative(s). The Union expressly stated this position in
presence of County representatives, and the agreement's unambiguous terms need to be
not interpreted. Even if interpretation is
required, the dictionary definition of "and" demands the conclusion that paid
from two, to two plus one. Any other conclusion would lead to the untenable position that
alternate could effectively step in to bargain without having attended any sessions.
Bargaining minutes establish that the Union took the position that the alternate was to
present and paid for each session. The Union took this position in across the table
County representatives present. Under the old language, neither party could dictate the
the members of the other party's bargaining team. To adopt the County's view effectively
the County a veto over the Union's selection and use of an alternate, and effectively renders
bargained language change meaningless.
The County's Arguments
The County contends that the crucial term is "alternate." The term clearly establishes
there is one representative designated to fill in for, not to supplement, the two named
The Union proposed the language change and any ambiguity must be construed against the
The County agrees that the changed language demands payment for the alternate, but only
bargaining sessions in which the alternate fills in for a named representative. At no point in
bargaining did the Union clearly communicate that it was proposing to increase the
from two to three employee representatives.
If the Union wished to change the established payment practice, it should have
old reference from "two" to "three" representatives. Rather, the Union argued to add an
to its team. The County agreed to the change, but never agreed to pay any more than two
representatives. The clear meaning of "alternate" establishes that the presence of a third
the bargaining team increases its number rather than permitting a fill-in. To the extent the
to "alternate" demands interpretation, the dictionary meaning of the adjective form of the
"succeeding each other" or "every other"; the noun form of the term is "a substitute"; and
form of the term is "to do or use by turns" or "to act, happen, etc. by turns" or "to take
regularly." The noun form is used in the agreement, and it is apparent that the language
do no more than to codify the prior practice of paying for two representatives, whether or
substitute was involved.
Each party asserts clear and unambiguous language demands their interpretation.
Each is, in
a sense, correct. "And" is a conjunctive reference. Two "and" one is three, not two. By
token, "alternate" in its noun form means "a substitute." It is not apparent how an individual
simultaneously be a "representative" and a "substitute" for a representative. If, however,
interpretation is to prevail, the parties cannot each be correct.
The clarity of the cited terms rests on viewing them out of their context. Ambiguity
into Section 23.04 because the two unambiguous terms do not stand alone, but appear in the
sentence. The sentence, in turn, appears within a three paragraph section. Placing the terms
context creates the ambiguity.
Past practice and bargaining history are, in my view, the most appropriate guides to
contractual ambiguity since each focuses on the conduct of the bargaining parties whose
intent is the
source and the goal of contract interpretation. The persuasive force of each guide is rooted
agreement manifested by the bargaining parties' conduct.
Here, the evidence affords no basis to conclude either guide is determinative. The
historically paid two Union representatives. However, the stipulated issue questions the
agreement following the negotiation of Joint Labor Agreements. Practice affords no insight
the language was changed beyond the deletion of references to joint bargaining.
Evidence of bargaining history is no more illuminating. Smith had a conversation
Union Vice-President, within the hearing of County representatives, on whether the alternate
representative was to be compensated. This affords some basis to infer County
understanding of the
point. However, no inference is required to note that the payment of the alternate was a
topic, even within the Union team. In any event, the evidence falls short of establishing
agreement on the point. It is not evident what, if anything, Kathan or any other County
heard of this dialogue, much less whether they agreed to it. Kathan has no recall of the
Smith "believes" the notes were shared with the County, but it is not clear when or how this
happened, much less whether the sharing demonstrates County agreement or County
to get into a dispute over Dupre's notes.
The parties cite other guides, such as construing ambiguity against the drafter. In my
this guide is better suited to commercial cases where a sophisticated drafter or a drafter of
unread forms attempts to assert the agreement against an individual after something other
negotiation between equals. The labor agreement here is a shared obligation negotiated by
In any event, the evidence is unclear. The original proposal was the Union's, but the draft
tentative agreement appears to have been the County's.
This returns the analysis to the language of Section 23.04, read in context. The force
County's case is that the Union failed to clearly communicate its desire to alter the payment
of Section 23.04 from two to three representatives. The persuasive force of this position
acknowledged. However, because the Union's interpretation fits better into the context and
of the section, I favor it over the County's.
The first two paragraphs of Section 23.04 govern the grievance. The first defines the
negotiating teams and the second states a payment obligation. The final sentence of the
paragraph mandates payment to "Authorized employee representative(s) as defined herein".
turns the focus to the final sentence of the first paragraph, which defines the representatives
. . the Union shall be represented by two (2) employee representatives and one (1) alternate."
The Union's reading of that sentence reflects my own perception of how the terms
normally be read: two "and" one is three. The County's view focuses on the term
County defines "alternate" as "substitute" and infers from this that only two employee
can seek payment for bargaining. The strength of the point grammatically is noted above. It
however, worthy of some note that it is not clear on the face of the section whether the
reference is an adjective or a noun. If an adjective (i.e. "alternate" representative), the
grammatical point is weakened, since the Union representatives are clearly not "succeeding
The grammatical point prefaces the more significant point that the County seeks to
substantive payment limitation into a definition that states none. This strains the terms of the
sentence of the first and the second paragraphs, and the content of the first paragraph. The
obligation is set forth in the final sentence of the second paragraph and does not distinguish
"representative" and "alternate" or "alternate representative." Nor does the sentence
functions of a representative. Rather, it extends payment to "Authorized employee
Nothing in the first paragraph indicates the parties use it to permit either party an interest in
a particular individual who can be a representative. In the 1997-1999 Joint Labor
parties allowed the Union to be represented by "up to" two representatives. There is nothing
indicate that in any labor agreement, the authorization of the representatives was anything
an internal Union matter. That the parties did not change the language of the second
counsels against concluding that the parties granted the County a greater interest in defining
"authorized" Union representative in the 2000-2002 agreement than in its predecessor.
Further complications surround the County's reading of the paragraphs. The parties
"up to" and "per bargaining unit" from the 1997-1999 Joint Labor Agreement, adding "and
alternate." The deletion of "per bargaining unit" reflects the change from joint to
negotiations. The strain in the County's view is reflected in the difficulty for explaining the
of "and" coupled with the deletion of "up to". Had the parties inserted "three (3)" where
appeared in the predecessor agreement, they would have stated the same obligation asserted
Union. The County asserts its payment obligation remained at two without regard to the
Finding this persuasive renders agreement terms meaningless. If the parties had
bargaining unit" from the first paragraph and left the reference to "up to two (2) employee
representatives" intact, the result would be the same as the interpretation urged by the
practice argument acknowledges that the use of alternates was assumed in "up to two (2)
representatives." This renders "and one (1) alternate" superfluous. Under the Union's view,
parties agreed to permit the attendance of the alternate as a note-taker, serving as needed to
fill in for
a spokesperson. Under this view, the alternate is kept abreast of the negotiations, and thus is
position to meaningfully fill in as needed as a spokesperson. Whatever is said of the policy
this view, it accounts for the insertion of "and one (1) alternate" into the labor agreement and
deletion of "up to."
Neither party asserts an unreasonable reading of the labor agreement, and it is
face to face bargaining produced something other than clarity on this point. The lack of
the dispute, in certain respects, like determining "how many angels can dance on the head of
However, contract language is the cornerstone of agreement, defining what an arbitrator must
and end with to define agreement when none is otherwise evident. The statement of the
obligation in the final sentence of the second paragraph of Section 23.04 survived the
the 2000-2002 labor agreement, and mandates payment for "Authorized employee
as defined herein". There is no dispute an "alternate" is an authorized employee
weakness of the County's view or the strength of the Union's should not be overstated. At
Union's strains the language of Section 23.04 somewhat less than the County's, and affords
to each term in the final sentence of the first paragraph.
There is no reason to believe remedy poses an issue demanding discussion. The
litigated the interpretive issue as an all or nothing issue, and did not enter argument or
remedy. The Award entered below thus states a general make whole requirement.
The County did violate the Collective Bargaining Agreement when it refused to pay a
employee representative to attend bargaining sessions, the third employee being the alternate.
As the remedy appropriate to the County's violation of the collective bargaining
the County shall make the authorized employee representative(s) serving as an alternate
Dated at Madison, Wisconsin, this 3rd day of July, 2003.
Richard B. McLaughlin, Arbitrator