BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME COUNCIL 40, LOCAL 2484,
Mr. Daniel R. Pfeifer, Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 18990 Ibsen
Road, Sparta, Wisconsin 54656-3755, appeared on behalf of the Union.
Mr. William A. Shepherd, Corporation Counsel, LaCrosse
County, 400 Fourth Street, North,
LaCrosse, Wisconsin 54601-3200, appeared on behalf of the County.
On December 27, 1996, the Wisconsin Employment Relations Commission received a
request from AFSCME Council 40, Local 2494 and LaCrosse County to appoint William C.
Houlihan, a member of its staff, to hear and decide a grievance pending between the parties.
evidentiary hearing was conducted on April 30, 1997 in LaCrosse, Wisconsin. The
were not transcribed. Briefs were submitted and exchanged by September 2, 1997.
This arbitration addresses the right of the County to subcontract social work.
The County and Union are signatories to a collective bargaining agreement, the
portions of which are set forth below. The bargaining relationship goes back many years.
collective bargaining provision in dispute in this proceeding was first negotiated into their
contract. Sometime in late 1995, Sue Pfeifer, Union president, discovered that the County
subcontracting with an organization named Riverfront, Inc. for Vocational Specialists and
professional Case Managers to provide services under the auspices of the County's
Support Program. Pfeifer discussed the matter with Mary Speltz, a co-worker and former
president, and concluded that this subcontracting violated the collective bargaining
On February 7, 1996, Speltz filed a grievance, which alleges the following:
"Approximately nine (9) contractual employes from Riverfront,
Inc. have been performing
duties normally performed by social workers in the bargaining unit. . . The above-contracted
employes are housed in the Department of Human Services, LaCrosse County. . ."
The grievance was denied, appealed through the grievance procedure, and has led to
The LaCrosse County Human Services Department exists for the purpose of
to the needs of the dependent, infirm, aged, disabled and delinquent. The Community
Program, a program serving people with serious and persistent mental illness, falls within the
Department of Human Services. The Community Support Program (CSP) was developed
guided by Thor Sundberg, its only program manager. It was Sundberg's uncontradicted
that in approximately 1976 he initiated a community outreach program and began to work
his clients in their homes, with the assistance of a Nurse. No bargaining unit members
in the nascent CSP program.
The program grew, and in 1978 a second position was added. Two aide positions
added in January, 1980.
Notwithstanding the growth in the program, the County Board was reluctant to
additional positions. Sundberg found it more expedient to contract for Community Support
Program positions. He turned to ORC Industries, Inc. for purchase of a Vocational
work in the CSP. According to Thorsen, ORC Industries had the experience the County
and contracting out proved a path of less resistance.
In November of 1985, the LaCrosse County Human Services Board determined to
out for social worker services with Riverfront, Inc. The first of several contracts was a
of services contract entered into with Riverfront running from January 1 to
December 31, 1986.
The services purchased were those of a field worker to work in the CSP program. The
was renewed in 1987 and involved a single position, that of field worker. Contracts with
Riverfront were renewed annually from their 1986 origin through and including 1997. The
number of positions grew over the course of time, and by 1997 included at least nine
which are the subject of this dispute.
In 1989, four CSP employes were accreted into the then-existing collective bargaining
Prior to that time, there were no bargaining unit members in the CSP program. At the time
their accretion, there continued to exist two contracted employes supplied by Riverfront.
professional CSP workers accreted into the bargaining unit were titled Field Workers in
In 1992 those employes were reclassified to Social Worker.
As of the date of the hearing, there were four Social Worker I bargaining unit
and one AODA bargaining unit employe. As of the same date, there were two Riverfront
supervisors, four Case Managers, and five Vocational Specialists. There is no meaningful
that the Case Manager position is the equivalent of the Social Worker position. Social
employed by the County do not perform the kinds of vocational tasks assigned Vocational
Specialists. There was a dispute as to the job content of the five Vocational Specialists. All
testified in this proceeding. All five essentially testified that 80 percent of their workload
consisted of case management. I believe the great majority of work of the Vocational
to be case management, work which parallels that performed by Social Workers employed by
There were no new bargaining unit positions created since 1989. In that time, there
been no reduction in the number of bargaining unit positions which has grown to four. The
workload has grown steadily, and has been met with contracted employes. Since 1986, there
been 20 Riverfront Social Worker employes employed.
Riverfront employes are housed in the same building as are CSP employes. The
mailboxes are in the same room and are arranged alphabetically, leading to an intermingling
employes of the County and employes of the contractor. The record establishes that Speltz
the Riverfront employes were employed under the terms of a contract with the County.
County employes were formerly Riverfront employes. Two were hired in 1994, one in
Notwithstanding the foregoing, it was the testimony of Sue Pfeifer that she was not
that there were contracted employes. Pfeifer testified that they were not on the seniority list
provided the Union. Pfeifer testified that she talked with Nikki Gyllander, Director of
Services, who indicated "I cannot believe the Union hasn't picked up on this before now."
Gyllander testified that the County contracts with numerous private entities for the
provision of case management/social work services. Gyllander produced an extensive list,
highlighted 15 organizations, with whom the County has contracts totalling over $100,000,
which involve the provision of case management and/or social worker services. The
these arrangements have been in effect since before Gyllander was employed, in 1989. It
further testimony that County employed Social Workers, have travelled to the site of work
performed by contracted Social Workers and worked together with their clients. She further
testified that at times employes of Gundersen Lutheran were housed in a County
facility. It was
her further testimony that employes of the Coulee Youth Center performed a good deal of
work in a County facility.
The parties could not agree upon the issue. The Union states the issue to be:
Did the County violate the collective bargaining agreement by
contracting out Community
Support Program Case Manager and Vocational Specialist work to Riverfront, Inc.? If so,
is the appropriate remedy?
The County states the issue to be:
Did LaCrosse County violate the collective bargaining agreement
by contracting out
Community Support Program (CSP) services?
I agree with the Union's statement of the issue.
RELEVANT PROVISIONS OF THE COLLECTIVE
2.01 Except as otherwise provided in this Agreement, the
County retains all the normal
rights and functions of management and those that it has by law. Without limiting
the generality of the foregoing, this includes the right to hire, promote, transfer,
demote, or suspend or otherwise discharge or discipline for proper cause; the right
to decide the work to be done and location of work; to determine the services to
be rendered, the materials and equipment to be used, the size of the workforce, and
the allocation and assignment of work for workers; to schedule when work shall
be performed; to contract for work not normally performed by Social Workers, and
for services and materials; to schedule overtime work; to establish or abolish a job
classification; to establish qualifications for the various job classifications; and, to
adopt and enforce reasonable rules and regulations. The current practice regarding
contracting Nurses shall continue, provided that the County shall not establish any
new contract with a Registered Nurse which would result in the layoff of a
bargaining unit Nurse. The County shall retain the right to subcontract, provided
however, that the County shall not establish any new contract
which would result in the
layoff of a Health Educator, Nutrition Educator or Lab Technologist. 1
POSITIONS OF THE
It is the Union's position that this decision turns on the meaning of Article II,
". . .The County retains all the normal rights and functions of management. . .This includes
right. . .to contract for work not normally performed by Social Workers and for services and
materials. . ." The Union takes issue with the Employer's characterization of its practice of
contracting out. Prior to 1989, employes of the CSP were not bargaining unit members.
Union contends that no practice can pre-date 1989. Furthermore, the Union contends that
contracts with other agencies to provide services to the County are not on point in this
Riverfront provides employes, not services, to the County.
The Union does not take issue with the County's lawful authority to contract with
Riverfront. It argues, however, that such authority must be exercised consistently with the
of the collective bargaining agreement.
The Union contends that its prior presidents, Mallory and Speltz were both new
and new to the union. The Union points to testimony indicating that management
advised Union officials that the County had a right to do what it was doing, and Union
believed these representations. The Union points to Gyllander's remark and contends that it
the representations noted above demonstrate a lack of good faith on the part of the County.
Union contends that with a bargaining unit consisting of 300 people, the mere fact that
employes worked in a common area should not be sufficient to impute knowledge to the
Finally, the Union contends that the only reasonable interpretation of Article 2.01 is that if
County can contract for work not normally performed by Social Workers, then it cannot
for work normally performed by Social Workers. The Union contends that the language is
and unambiguous, rendering other arguments superfluous.
It is the view of the County that its managements rights clause reserves to the County
rights that it has by law. Among those rights include a mandate to establish a Community
Program. Wisconsin statutes authorize the County Department of Community Programs to
into contracts to render services, or to secure services from other agencies or resources
out-of-state agencies or resources." Wis. Stat. Section 51.42(3)(ar). The County
it has the statutory authority to contract for CSP services.
The County contends that it has not relinquished its management right to contract for
services. Nothing in Article 2.01 expressly prohibits the County from contracting for the
of Social Workers. The managements rights clause reserves to the County without any
any right not specifically relinquished. Among those rights includes the right to
contract for services. In support of its claim, the County lists the various organizations
whom it has purchase of services contracts for social worker services. The County contends
should I grant the Union's grievance the ability of LaCrosse County to provide numerous
mandated services to its citizens would be seriously impaired.
The County argues that should I determine that the contract provision is ambiguous,
County's right to contract for services is supported by the past practice of the parties. The
points to its history of contracting with Riverside, and its other various agreements, and
arbitral authority, contends that it has established a long-standing practice of contracting for
The County contends that its various contracts with Riverfront have not undermined
endangered the bargaining unit. In support of this claim, the County indicates that it has
proceeded to contract based on sound business and program needs. The CSP program has
and in so doing has served an increasing number of clients, and has resulted in the hire of
additional County employes. It is the view of the County that should the various contracted
Workers be eliminated, current bargaining unit members would not be able to handle the
Section 2.01 entitles the Employer to: ". . .contract for work not normally performed
Social Workers. . ." On its face, the language implies that the Employer cannot subcontract
work that is performed by social workers. This is the prime argument advanced
by the Union in
this dispute. However, the context in which this argument is made includes the fact that the
was not meaningfully regulated at the time the language was contractualized. In 1973, there
no bargaining unit members in the CSP. At that time, the subcontracting restriction had no
practical consequence for the operation of the CSP during its early years. The parties have
subsequently reiterated the County's right to subcontract, subject to certain specific
in the last sentence of Section 2.01.
Subcontracting began in approximately 1982 with a contract with ORC for services.
first contract with Riverfront was signed in late 1995 and existed for calendar year 1996. It
not until 1989 that the first CSP employes were accreted into the bargaining unit. Between
and 1989 (or 1992 when the CSP employes were reclassified to social workers) no CSP work
"normally performed by social workers".
This is the environment in which the County entered into early contracts with
The addition of the last sentence in Section 2.01 is general and would normally give way to
more specific provision found in the original paragraph. However, the reiteration of this
subcontracting right appears to have occurred in an environment where the employer
subcontracting social work in the CSP.
I believe the provisions of 2.01 are sufficiently ambiguous, under all the
surrounding this dispute, to permit an examination of the practice by the parties.
The Union contends that pre-1989 events ought not be treated as a practice binding
the Union. Assuming that to be the case, it is certainly evidence of the Employer's view of
rights. By 1989, four CSP workers had been accreted into the unit. Riverfront was a
to its fourth annual contract in 1989. By 1992, certain CSP positions had been reclassified to
social worker. The Riverfront subcontracting was in its seventh year as of 1992, and was
growing. In 1994, two Riverfront employes were hired into the CSP. Another was added in
During this entire period of time, the subcontracted employes and County employes
worked in a common building and shared a common mailbox area. I believe a strong
involving a fundamental condition of employment and the essence of the operation of the
Department exists. The practice is unequivocal. There is no doubt as to what this employer
Subcontracting occurred prior to the existence of bargaining unit employes in the CSP. The
Employer's action was open and obvious. The core substance of the CSP unit work was
performed by non-bargaining unit employes.
The practice was clearly enumerated. The contracts with Riverside were the product
open meetings/open records regulation. Contracted employes openly performed Case
The subcontracting period with Riverside began in 1985 and ran uninterrupted to
a period of 12 years. Each year, the contract grew in size, the number of contracted
grew in number. Contracts were renewed annually. Bargaining unit members and
Social Workers were intermingled. Their mailboxes were arranged alphabetically. They had
essentially common worksite. Ms. Speltz, prior president of the union, was aware of the
of subcontracted Social Workers. By 1994, there were bargaining unit members who had
previously been employed as subcontracted employes. I credit Gyllander's testimony that
bargaining unit members and subcontracted Social Workers worked together in certain
It is my conclusion that the Union knew of the subcontracting and acquiesced.
The consequence of the foregoing is that notwithstanding the language found in
Article 2.01, the CSP program has evolved in a fashion which draws its primary social
component from Riverfront. I believe the Union had a much stronger case in 1985, 1989, or
1992; but failed to bring that case forward. Now, the consequence of the Union's prevailing
this matter include the potential destruction of the CSP program, and a significant impact on
the contract existing between the County and Riverfront. I am unwilling to bring about
result. I regard the Union as estopped from making such a claim.
It is my conclusion that the provisions of Article 2.01 are sufficiently ambiguous as
warrant an examination of the historic practice in this dispute. I believe the practice
overwhelmingly supports the Employer's position. It is my conclusion that the County does
violate the collective bargaining agreement by contracting out Community Support Case
Manager/Vocational Specialist work to Riverfront. This award is intended to be specific to
The grievance is denied.
Dated at Madison, Wisconsin, this 23rd day of February, 1998.
William C. Houlihan /s/
William C. Houlihan, Arbitrator
1. This Article is identical to that which appeared in the
parties' 1973 Agreement, with the
exception of the last two sentences. Those sentences did not exist in the 1973 Agreement,
have apparently been incorporated into the Agreement subsequent to 1973.