STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
PLEASANT VIEW EMPLOYEES UNION
LOCAL 1162, AFSCME, AFL-CIO,
GREEN COUNTY (PLEASANT VIEW NURSING
Decision No. 30355-A
Mr. Thomas Larsen, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1734 Arrowhead Drive, Beloit, Wisconsin 53511, for the labor
Attorney William E. Morgan, Corporation Counsel, Green County, Green
County Courthouse, 1016 16th Avenue, Monroe, Wisconsin 53566, for the municipal
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
On September 22, 2000, Pleasant View Employees Union Local 1162, AFSCME,
filed a complaint with the Wisconsin Employment Relations Commission alleging that Green
had violated sec. 111.70(3)(a) 4 and 1, Wis. Stats., by transferring the existing duties of
from a bargaining unit position (Ward Clerk) to a non-unit supervisory nursing position
bargaining with the union on the proposed change. Green County denied that it had
prohibited practices. In its complaint, the union asserted that it was a party to a collective
agreement with the county which had expired on December 31, 1998. In its answer of
2000, the county alleged that "the parties have been operating under the terms of that
through the present date." The matter was held in abeyance pending efforts to resolve the
On April 25, 2002, union staff representative Thomas Larsen informed commission General
Peter G. Davis that the union wished to have the matter assigned to a commission hearing
Dec. No. 30355-A
Dec. No. 30355-A
purposes of scheduling a hearing. On May 24, 2002, the commission appointed Stuart
member of its staff, to serve as Examiner with authority to make and issue findings of fact,
conclusions of law and an order. On July 18, 2002, hearing in the matter was held before
Levitan, at which time county corporation counsel William E. Morgan raised a jurisdictional
namely that the dispute should be deferred to grievance arbitration. The examiner denied the
to dismiss without hearing. A stenographic transcript of the proceeding was made available to
parties by July 31. The parties submitted written arguments by August 28, 2002, and reply
September 18, 2002. On November 25, 2002, in response to an inquiry from the Examiner,
respondent's counsel submitted a statement regarding the respondent's position on the
of grievance arbitration. On February 4, 2003, the union filed a written response to a
from the Examiner as to its position on the nature of the parties' relationship after December
1998. The Examiner now and hereby issues the following
FINDINGS OF FACT
1. Pleasant View Employees Union Local 1162, AFSCME, AFL-CIO, "the
a labor organization with offices at 1734 Arrowhead Drive, Beloit, Wisconsin.
2. Green County, "the county," is a municipal employer with offices at
Avenue, Monroe, Wisconsin. Among its other general government activities, the county
maintains and operates the Pleasant Valley Nursing Home. The licensure of the home
requires round-the-clock assignment of certified nursing assistants, among other personnel.
The state investigates
annually to determine the home's compliance with minimum staffing requirements, where
comply exposes the county to civil fines and penalties.
3. From January 1, 1997 to December 31, 1998, the union and the county were
to a collective bargaining agreement which recognized the union as the exclusive
a bargaining unit described as "all employees of the Green County Pleasant View Nursing
excluding supervisory, confidential, craft and professional employees," and including
nursing assistants ("CNA's") and ward clerks. The agreement provides that "any dispute or
misunderstanding relative to the provisions" of the agreement may be submitted to a
procedure which includes final and binding arbitration. That agreement also defined as a
Right "the right to decide the work to be done, and the location of the work," while
"(r)easonableness of management's decisions are subject to grievance procedure." The
also stated that the provisions of the article on Management Rights "shall not be used for the
of undermining the Union or discriminating against any of its members." The agreement
provides as follows:
Dec. No. 30355-A
30.01 THIS AGREEMENT shall go into effect January 1,
1997, and continue until
December 31, 1998, and shall be considered automatically renewed from year-to-year
unless prior to July 1, 1998, either party shall serve written notice upon the other that it
renegotiate, revise or modify this Agreement. In the event such notice is served, the parties
operate temporarily under the terms and provisions of this contract until a new contract is
Nothing in this section or this Agreement
prohibits the Employer from implementing its proposals
or parts thereof if such implementation is otherwise lawful.
4. Donna Mackesey began work as a ward clerk for the county's Pleasant Valley
home in 1991, at a time when the scheduling function was being performed by the non-unit
director of nursing pursuant to that supervisory employee's job description. Mackesey's
description was to perform clerical and other support duties related to nursing services under
direction and supervision of a registered nurse or licensed practical nurse. The scheduling
range from processing requests and notices of leaves to assigning particular staff to the
nursing home units. Prior to the assistant director of nursing assuming the scheduling
director of nursing had performed that task. In about August 1993, after some separate
transactions and during a period when the nursing home was experiencing a nursing shortage,
Mackesey assumed the scheduling function except for the night shift, which remained, and
scheduled by the nurse supervisor. At that time there were two other ward clerks, one
concerned with ordering and stocking supplies, the other primarily responsible for handling
physician's orders and lab tests. Mackesey's position description, which had not included
duties, was not amended either contemporaneously or upon a 1995 restatement. In the early
of 2000, in anticipation of the retirement of the lab test ward clerk, Mackesey indicated her
in taking over those responsibilities but without the scheduling duties. The employer
Mackesey to the lab work ward clerk position and, in April 2000 temporarily assigned a
nurse's assistant who was then on light duty to perform the scheduling duties. The scheduling
occupy about two-to-three hours of a ward clerk's time, or about one-third a full-time
that time, the employer decided to return the scheduling duties to a non-unit nursing position,
a staff nurse or nursing supervisor. 1/ Subsequently, Stoor added the scheduling
a staff nurse who is also responsible for doing certain patient assessments. The assessments,
require a nursing degree, do not by themselves account for a full-time nursing position.
registered nurse perform the scheduling function results in the county paying more for that
than it did when Mackesey performed the duties, and more than it would if a ward clerk
perform them again. In seeking to fill the ward clerk position Mackesey vacated when she
her new assignment, Stoor on
Dec. No. 30355-A
April 6, 2000 posted a job opening notice for a full-time ward clerk. Three members
bargaining unit signed the posting, but were all deemed to be unqualified because they lacked
necessary health unit coordinator certification the position required. There were no further
from the bargaining unit.
1/ While it is presumed
the nurse supervisor is outside any bargaining unit, the record is silent on whether
the staff nurse position is covered by a collective bargaining agreement.
5. On May 16, 2000, County Corporation Counsel William E. Morgan wrote to
40 Staff Representative Thomas Larsen as follows:
You had asked me to check into an issue regarding the unit clerk
and some job duties being
assigned to an RN. I have spoken with Dan Stoor and, as I understand it, this is the scenario.
Apparently, historically we have had three ward clerks who, over time, have become
specialized in their job duties, one being in charge of ordering supplies, one in charge of
etc. As you had indicated, the position became available and was posted but not filled.
apparently another of the ward clerks, Donna, indicated that she would take over the job
the vacant spot if she did not have to continue doing the scheduling of CNA's. Since
not part of the job description of a ward clerk, and is in essence a management type of
as much as it entails approving vacation request, etc., the decision was made to add those job
to a currently vacant staff nurse position. In talking with Mr. Stoor, it is my understanding
duties that would perhaps comprise three hours out of an eight hour day. In any event, the
remains unfilled at this point. That leaves us with two full-time ward clerks, one unfilled
position and one unfilled staff nurse position with new job duties managerial in nature.
It would be our intention to fill the staff nurse position at the
earliest as possible, and to fill the
ward clerk position as our census rises. Hopefully our census will rise and we will be able
staff our CNA's, which would justify filling the ward clerk position.
If you should have any further questions or
concerns regarding this, please feel free to contact
Dec. No. 30355-A
6. During the period in which Mackesey performed the scheduling duties, the
a grievance alleging that she had been discriminating against certain unit members in her
As remedy, the union sought:
Management to monitor more closely on her
scheduling to make sure that it is done fairly and
to enforce that Donna is just a union member, + to see that she does not overstep her
7. At hearing on the complaint, county corporation counsel
William E. Morgan stated
that it was "inappropriate" for the commission to assert jurisdiction herein because "this
subject to the binding arbitration of the contract." On November 19, 2002 I wrote to inquire
Morgan whether the county was willing to arbitrate and renounce technical objections which
prevent a decision on the merits by the arbitrator. On November 25, Mr. Morgan responded
Thank you for your inquiry with regard to
the above-entitled matter. My position at that time,
as well as now, is that the issues raised by the Union were subject to the grievance
established in the agreement between the parties. However, while I frequently do waive
issues such as time limits, I generally only do so when I have discussed it in advance and it
is for the
purpose of trying to resolve the matter without having the necessity of going through the full
grievance procedure. In this case, the issue was raised by the Union during negotiations and
responded by offering to discuss it further. When they failed to do that, I thought the matter
ended. Certainly, any time limit for filing a grievance has long since passed. Unless Mr.
convince me that perhaps the time limits were somehow tolled, I do not believe it appropriate
If you wish this matter to be referred to the
grievance procedure, I have no objection. However,
I will undoubtedly raise the issues of time limits at that time.
8. On January 28, 2003, I wrote to Mr. Larsen to request clarification on the
position on the following question: "Were the parties in a hiatus period after
December 31, 1998, or
were the terms of the contract still in force pursuant to Section 30.01 of that agreement?"
February 4, 2003, Mr. Larsen responded as follows:
Dec. No. 30355-A
This matter concerns the "Complaint" of the
Union that Green County failed to bargain in good
faith by transferring bargaining unit work to an employee outside of the bargaining unit. The
Complaint does not raise an issue of a violation of the collective bargaining agreement.
Section 30.01 of the collective bargaining
agreement does provide for the parties to continue to
"operate temporarily under the terms and provisions of this contract." The Employer has not
to have the matter deferred to arbitration, but is stating that the Commission does not have
jurisdiction to hear the case. Further, they do not declare if they would waive a timeliness
if this matter were so deferred.
It is our position that the Commission must
resolve this matter on its merits to determine if the
statutory provisions of Sec. 111.70 have been violated. While the Commission could defer
arbitration a complaint of prohibited practice, failure to initially proceed to arbitration does
the Union's request for statutory relief.
9. The county's procedural defense of timeliness makes it speculative that
of a grievance to arbitration would result in an award which would fully resolve the union's
as to an alleged violation of Secs. 111.70(3)(a)1 and 4, Stats.
10. At all times material herein, the parties were subject to the terms and
provisions of a
collective bargaining agreement which included among the rights reserved to the county the
to decide the work to be done, and the location of the work."
On the basis of the above and foregoing Findings of Fact, the examiner makes and
CONCLUSIONS OF LAW
1. Because it is speculative that submission of the grievance to arbitration would
in an award which would fully resolve Complainant Union's Sec. 111.70(3)(a)4, Stats. claim,
it is not
appropriate for the Commission to defer to the parties' contractual grievance arbitration
for resolution of the issues of contractual construction and interpretation related to that
violation of Sec. 111.70(3)(a)4, Stats.
2. Because the subject of assignment of work is addressed in the parties'
bargaining agreement, thereby relieving the parties of any statutory obligation to bargain
topic, Green County did not commit a prohibited practice within the meaning of
Dec. No. 30355-A
Sec. 111.70(3)(a) 4 or 1, Wis. Stats. by its transference of scheduling duties to a
On the basis of the above and foregoing conclusion of law, the examiner makes and
That the complaint filed herein is denied and dismissed.
Dated at Madison, Wisconsin, this 4th day of April, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dec. No. 30355-A
Green County (Pleasant View Nursing Home)
MEMORANDUM ACCOMPANYING FINDINGS
CONCLUSIONS OF LAW AND
POSITIONS OF THE
The Labor Organization
In support of its position that the complaint should be sustained, the labor
and avers as follows:
The employer improperly transferred the duties of scheduling
from a position represented by the
union to a position outside the bargaining unit. The respondent's answer admits to much of
underlying substance of the complaint, as does the evidence and testimony taken at hearing.
While there is a history of having the
scheduling performed by non-unit personnel it is also true
that this responsibility had become a primary duty of the Ward Clerk position, such that it
the majority of the time of one of the three incumbents. The employer's decision to transfer
function to a registered nurse outside the bargaining unit had the effect of eroding the
integrity of the
The employer unilaterally took this action
without consultation or negotiation with the union.
This reverses the applicable procedure, which makes it incumbent on the party seeking to
change in the status quo to present that issue for
That the scheduling function is not included in the job description
for the Ward Clerk represents
the employer's failure to properly update the job description, since it is undisputed that a
incumbent Ward Clerk was indeed performing this function over a period of time that the job
description was being updated.
The recognition clause of the parties
collective bargaining agreement makes the union the
exclusive representative for all employees, excluding supervisory, confidential, casual and
employees. So while the work of the
Dec. No. 30355-A
"scheduler" was transferred to a
professional employee excluded from the bargaining unit, the
work so transferred is not. It represents a direct attack on the integrity of the bargaining unit
reduce the number of bargaining unit positions and add those to a position outside the
Accordingly, the commission should declare
that the county has committed the prohibited
practices alleged above and should order the county to cease and desist from further such
The commission should also order that the union be made whole financially for the loss of
together with interest as provided by the commission rules.
In support of its position that the complaint should be dismissed, the employer
avers as follows:
The Commission should not assert jurisdiction in this matter
because it was not first submitted
to grievance arbitration, which is presumed to be the exclusive remedy for contract violations
express language to the contrary.
Here, the collective bargaining agreement
clearly states that the reasonableness of management's
decisions are a proper subject of grievance arbitration. And contrary to the assertion of the
a contract was in force at the time of the actions giving rise to the complaint. Since a
in force, the commission ought not assert jurisdiction and the complaint should be dismissed.
It is also surprising that the union raises this
issue now when it failed to make use of bargaining
to discuss the matter. It can hardly be said that the employer committed a prohibited
it clearly offered to discuss these matters. Again, this should cause the matter to be
Further, the employer did not commit a prohibited practice when
it transferred the duties of
scheduling CNA's from the vacant Ward Clerk position to a non-bargaining unit supervisory
There is little disagreement between the parties on most of the factual issues; clearly,
assigning work is a management right reserved by the parties' collective bargaining
parties further agree that this scheduling has historically been done by managerial/supervisory
personnel. At no time, with the exception of the immediate past incumbent, did any
member perform these tasks on a regular and consistent basis.
Dec. No. 30355-A
The scheduling tasks were not actually transferred to a position
within the bargaining unit, they
were rather transferred to an individual who had great proficiency in the relevant tasks.
individual chose no longer to do those duties, which had never been part of her formal job
description, the employer acted reasonably and rationally in directing non-unit personnel to
The need and appropriateness for having
these tasks handled by non-unit personnel is made all
the more clear by the union's earlier grievance regarding Ms. Mackesey's performance.
Accordingly, the commission should either
decline to exercise jurisdiction or else determine there
has been no violation.
The Labor Organizations' Reply
The union waived its right to file a reply brief.
The Municipal Employer's Reply
In its reply, the employer further posits as follows:
Contrary to the union's assertions, the employer did offer to
negotiate and discuss its actions
in this regard with the union. Further, the employer did in fact post the position but no one
to take it signed the posting. None of these facts have been disputed or in any way
challenged by the
union; for these reasons alone, the complaint should be dismissed.
Further, it is difficult to understand how the employer could have
committed a prohibited practice
when it did in fact offer to bargain. Moreover, the original transfer of these duties was not a
to duties to the bargaining unit, but rather a transfer of duties to a particular individual. That
individual later chose no longer to perform the duties, and, as it was not part of the position
description nor in fact something a bargaining unit member should be doing, the county
those duties. The union errs in stating that decision-making remained with the
it in fact was performed by Mackesey. That this gave rise to conflicts is highlighted most
the grievance the union filed against Ms. Mackesey for her job performance. It is because of
like those that management chose to exercise its right to assign the duties to a supervisory
It was certainly not done to dilute the bargaining unit.
Dec. No. 30355-A
As this matter was not submitted for
arbitration and because the county did offer to negotiate the
change during a period of ongoing negotiations, the complaint should be dismissed.
This case involves two levels of analysis, jurisdictional and substantive. The union
against the employer's motion for deferral to arbitration, but is ultimately unable to meet its
of proof 2/ on the merits. Accordingly, I have dismissed the complaint.
2/ Section 111.07(3),
Stats., which is made applicable to this proceeding by Sec. 111.70(4)(a), Stats.,
that "the party on whom the burden of proof rests shall be required to sustain such burden by
a clear and
satisfactory preponderance of the evidence."
Historically, the scheduling duties at Pleasant Valley were always performed by a
ranking non-unit employee, either the director or assistant director of nursing. There came a
the early 1990's when a nursing shortage and the particular personal skills of an incumbent
combined to occasion the reassignment of those some of those duties (two out of three shifts)
particular ward clerk. Throughout, however, scheduling duties on the third shift were borne
by a non-unit third-shift nurse supervisor.
Subsequently, that incumbent wished to surrender those duties and assume another
position. After temporarily assigning the scheduling tasks to a certified nurse's assistant, the
returned the duties to a nursing position outside the bargaining unit. By assigning the
duties to a nurse, the county paid substantially more to have these duties performed than it
have had it continued to have the duties performed by a ward clerk represented by the union.
At hearing, the employer raised a jurisdictional challenge to the proceeding, asserting
complaint were more appropriately taken to grievance arbitration. The union protested as
such an argument being raised for the first time at hearing.
I agree with the union that there is nothing in the employer's answer to indicate it
challenging the very existence of this proceeding. But while it is certainly bad form to wait
hearing to do so, I do not find this flaw fatal especially since I told the county it was
to raise a jurisdictional issue in subsequent briefs." Given the historic
Dec. No. 30355-A
laxity of Commission procedure, and the current transitional state our administrative
rules are in, I
conclude it is appropriate to give the employer's deferral argument greater consideration that
when surprised with the motion at hearing.
The Commission has "long held that it will defer to the contract grievance arbitration
appropriate cases in which the Respondent objects to the Commission exercise of jurisdiction
matter." Brown County, Dec. No. 19314-B (WERC, 6/83); Menomonie Schools, Dec.
No. 16724-B (WERC, 1/81) at 5-6; Milwaukee Schools, Dec. No. 11330-B (WERC, 6/73)
However, if the Respondent raises a procedural defense before the arbitrator,
untimely grievance filing, the merits of the dispute would remain unresolved and subject to
subsequent Commission review of the Examiner's decision on the merits. For the
discretionary decision to defer -- for probable resolution via contractual procedures -- alleged
non-contractual violations of the Statutes it enforces ought not and does not preclude the
from fully adjudicating such claims if they are not resolved on the merits in a fair and timely
and in a manner not repugnant to the Act. Milwaukee Elks, 7753 (WERC, 10/66);
Milwaukee Schools, Dec. No. 10663-A (WERC, 3/72); Milwaukee Schools, Dec. No.
As rooted in School District of Cadott Community, Dec. No.
27775-C (WERC, 6/94);
aff'd 197 Wis.2d 46 (Ct. App., 1995), and re-stated in Central
High School District of
Westosha, et. al., Dec. No. 29671-A (8/99), the Commission's criteria for deferral to
(1) The parties must be willing
to arbitrate and renounce technical objections which would
prevent a decision on the merits by the arbitrator;
(2) The collective bargaining
agreement must clearly address itself to the dispute; and
(3) The dispute must not
involve important issues of law or policy.
As the Commission explained in Cadott Community, I have the statutory jurisdiction
obligation to decide Sec. 111.70(3)(a)4 complaints that employer conduct during a contract
the employer's duty to bargain. When an employer defends against such allegations by
existing contractual provisions establish that it has met its duty to bargain, interpretation of
contract provisions has the potential to resolve the merits of the refusal to bargain complaint.
where grievance arbitration is available to interpret the critical contract provisions and it is
appropriate, an examiner should defer the dispute to the
Dec. No. 30355-A
parties' contractual dispute resolution mechanism. However, consistent with our
jurisdiction and obligation, even where deferral is appropriate, the Commission retains
to ensure that the merits of the statutory claim can be resolved if deferral does not produce a
timely resolution which is consistent with the Municipal Employment Relations Act.
Thus, it is the interpretation of the substantive contract provisions by a grievance
which gives deferral its utility. As the Cadott Community Commission stated:
Absent such an interpretation, the merits of the employer's
defense to the refusal to bargain
complaint remain unresolved. Deferral is of no value unless interpretation of the substantive
provisions occurs. Thus, we will not defer where, as here, the procedural defense of
it speculative that the interpretation of the holiday and any other relevant contractual clauses
occur. Dec. No. 27776-C, at 10-11.
Here, because the County declined to
waive its timeliness defense, Commission case law renders
I turn, therefore, to consideration of the complaint on its merits.
Refusal to Bargain
Section 111.70(3)(a)4, Stats., states, in relevant part, that it is a prohibited practice
To refuse to bargain collectively with a representative of a
majority of its employees in an
appropriate collective bargaining unit. . . .
A violation of Sec. 111.70(3)(a)4, Stats., results in a derivative violation of
Sec. 111.70(3)(a)1, Stats.
Generally speaking, a municipal employer has a Sec. 111.70(3)(a)4 duty to bargain
bargaining representative of its employees with respect to mandatory subjects of bargaining.
Mandatory subjects of bargaining are those which "primarily relate" to wages, hours and
of employment, as opposed to those subjects of bargaining which
Dec. No. 30355-A
"primarily relate" to the formulation and choice of public policy. City of Brookfield v.
87 Wis.2d 819 (1979); Unified School District No. 1 of Racine County v. WERC, 81
89 (1977); and Beloit Education Association v. WERC, 73 Wis.2d 43 (1976).
A municipal employer's statutory duty to bargain with a union during the term of a
bargaining agreement extends to all mandatory subjects of bargaining except those which are
by the agreement, or to those which the union has clearly and unmistakably waived its right
bargain. School District of Cadott, Dec. No. 27775-C (WERC, 6/94); City of Richland
Center, Dec. No. 22912-B (WERC, 8/86); Brown County, Dec. No. 20623 (WERC,
Racine Unified School District, Dec. No. 18848-A (WERC, 6/82). As Examiner Raleigh
stated in Rock County, Dec. No. 29970-A (1/01):
. . . an employer may not normally make a unilateral change
during the term of a contract to a
mandatory subject of bargaining without first bargaining on the proposed change with the
bargaining representative. 2/ Absent a valid defense then, a unilateral change to a mandatory
of bargaining is a per se violation of the MERA duty to
bargain. 3/ Unilateral changes are tantamount
to an outright refusal to bargain about a mandatory subject of bargaining because each of
actions undercuts the integrity of the collective bargaining process in a manner inherently
with the statutory mandate to bargain in good faith. 4/ The duty to bargain incorporates a
maintain the status quo with regard to most mandatory subjects
of bargaining even after the collective
bargaining agreement has expired, unless the duty to bargain has been discharged by
the point of impasse. 5/
2/ City of Madison,
Dec. No. 15095 (WERC, 12/76) at 18 citing Madison Jt. School District No. 8,
Dec. No. 12610 (WERC, 4/74); City of Oak Creek, Dec. No. 12105-A, B (WERC,
7/74); and City of
Menomonie, Dec. No. 12564-A, B (WERC, 10/74).
District of Wisconsin Rapids, Dec. No. 19084-C (WERC, 3/85).
4/ City of Brookfield,
Dec. No. 19822-C (WERC, 11/84) at 12 and Green County, Dec. No. 20308-B
(WERC, 11/94) at 18-19.
5/ Greenfield School
District, Dec. No. 14026-B (WERC, 1977).
Dec. No. 30355-A
Thus, there are three issues involved in this analysis was the subject at hand
subject of bargaining, and if so, was it either covered by the agreement or otherwise
by the union. In order for the union to prevail, the answers must be yes, no and no,
At the outset, I believe that it is to the employer's legal benefit that it did not initiate
transfer of the scheduling function, but only responded after Mackesey decided to drop the
when posting into the lab tech ward clerk position. Had the county unilaterally and arbitrarily
the duties away from an existing incumbent, the union would have a more persuasive
that would be a different case. The case before me has the county allowing Mackesey to drop
duties, then assigning them temporarily to a ward clerk on light duty. It was only then that
employer determined to return the scheduling function to a staff or supervisor nurse.
It was Mackesey who brought the scheduling assignment into the unit in 1993, and
who put the duty back into play by transferring positions in 2000. When she did so, the
decided to make an independent evaluation of its proper placement and thus began
The employer asserts that the union falls on the first standard, in that "the Union
that a transfer of supervisory-type duties from a unit member to a non-unit member is, at
permissive subject of bargaining." Without delving too deeply into what the union knew or
I do note that nowhere in its brief does the union maintain that the assignment of duties to
particular employee or another is indeed a mandatory subject of bargaining.
Indeed, commission case law may well indicate that the re-assignment of scheduling
from a ward clerk to a nurse is a permissive subject of bargaining, in that the duties could
within the normal duties of either position. As the commission explained in Sewerage
of the City of Milwaukee, Dec. No. 17302 (WERC, 5/79):
. . . if a particular duty is fairly within the
scope of responsibilities applicable to the
kind of work performed by the employees involved, the decision to assign such work to
such employees is a permissive subject of bargaining. Only when the duties involved are
not fairly within that scope does the matter of whether the employees may be assigned
such work become a mandatory subject of bargaining.
Although the union is here contesting not the assignment of duties to
one of its
members (as in the Milwaukee Sewerage case), but rather the re-assignment of duties
from one of its members, the teaching of this case remains substantially on
decision to assign work to employees for whom such work is fairly within their scope of
responsibilities is a permissive subject of bargaining.
Dec. No. 30355-A
The duties of scheduling certified nursing aides in a public health care facility
certainly appear to be "fairly within the scope" of responsibilities of a position outside
this bargaining unit, as established by the parties' actual practice. The director and
assistant director of nursing both did the duties previously, and a nurse supervisor has
done them throughout for the third shift. Mackesey is the only unit employee to ever
have this duty as a permanent assignment.
In claiming that the scheduling function is a duty exclusively for unit personnel,
the union must also find awkward its earlier grievance that Mackesey was acting too
much like the employer's agent. Certainly, the fact that the union filed a grievance over
the enforcement of scheduling rules' would seem to indicate that it could be "fairly
within the scope" of a non-unit position to hold these duties.
Assuming, however, for the sake of a fuller discussion that the underlying issue
is a mandatory subject of bargaining, I turn now to the question of whether the subject
is covered by the collective bargaining agreement.
The Commission's standard of whether a subject is covered by the collective
bargaining agreement is fairly easily met.
In Janesville Schools Dec. No. 15590-A (Davis, 1/78) aff'd by operation of
(WERC, 2/78) a dispute arose during the contract as to whether the employer was
obligated to bargain over the right of an employee to accrued vacation benefits upon
Although the record clearly indicated that the parties had never specifically
discussed that subject, they had bargained a vacation clause which, in conjunction with
other possibly relevant contractual provisions, defined an employee's rights or lack
thereof to vacation benefits. Finding that the "subject of the vacation rights of
terminating employees is in fact embodied in the existing bargaining agreement," the
examiner, and by operation of law the commission, concluded that Respondents did not
have a duty to bargain with respect thereto.
In Cadott Community Schools, supra, the employer deducted sick
leave and unpaid
medical leave instead of paying holiday pay for employees who were sick on holidays as
identified in the collective bargaining agreement. The contract provided for the
existence of holiday pay on certain named holidays, but was silent on such eligibility
issues as this. The examiner, finding that the parties had "clearly negotiated over the
subject of holiday pay," dismissed the union's duty to bargain complaint because
"holiday pay eligibility is already addressed" in the agreement "and contractual
waiver applies." Dec. No. 27775-B (Schiavoni, 1/94).
In affirming the examiner, the commission readily agreed that employee eligibility
for holiday pay was a matter already covered by the contract, by virtue of the
provision naming Memorial Day, Thanksgiving and Labor Day as "paid holidays in the
school calendar." Explicitly applying Janesville, the commission concluded that
"(a)lthough the parties did not specifically discuss the eligibility issue at the heart of
the dispute, they do have a holiday pay provision. Cadott Community, Dec. No. 27775-C
(WERC, 6/94). That provision, when
Dec. No. 30355-A
read in conjunction with the rest of the contract, defines employees' holiday pay
The Cadott Community commission was straightforward that this conclusion "ends the
inquiry we need to make to resolve the duty to bargain issue. The parties have bargained
on holiday pay and are not obligated to bargain further on the issue. The scope of the
parties' rights under their bargain need not be defined here and are appropriately left
to the grievance arbitration process." Dec. No. 27775-C at 12.
On appeal, Chippewa Circuit Judge Roderick Cameron affirmed the commission
decision. The court of appeals did likewise, explicitly endorsing the commission's
interpretation and application of Janesville. Cadott Education Association v. Wisconsin
Employment Relations Commission, 197 Wis. 2d 46 (1995), Dec. No. 27775-E.
In the case before me, the collective bargaining agreement recognizes the
county's "right to decide the work to be done, and the location of the work." That same
paragraph on management rights also establishes the standard for such decisions
their "reasonableness" and the forum for challenges, namely grievance arbitration.
That is, while the collective bargaining agreement lacks provisions regulating
the preparation of position descriptions, the agreement does address the basic topic of
assignment of duties and establishes it as a management right. Because the parties
bargained on assignment of duties, this ends the inquiry I need to make to resolve the
duty to bargain issue. The parties are not obligated to bargain further on this issue at
Accordingly, I have dismissed the complaint in its entirety.
Dated at Madison, Wisconsin, this 4thday of April, 2003.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION