BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
J.W. PETERS & SONS, INC.
TEAMSTERS LOCAL UNION NO. 43
McCloskey and Associates, by Mr. Steve McCloskey, 3809
Vandan Road, Minneapolis, Minnesota
55345, appearing on behalf of the Company.
Goldberg, Previant, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Ms. Andrea F. Hoeschen, 1555
Rivercenter Drive, Suite 203, P.O. Box 12993, Milwaukee, Wisconsin 53212, appearing on
J.W. Peters & Sons, Inc., hereinafter
referred to as the Company, and Teamsters Local
Union No. 43, hereinafter referred to as the Union, are parties to a collective bargaining
which provides for final and binding arbitration of grievances. Pursuant to a Request for
Arbitration the Wisconsin Employment Relations Commission appointed Edmond J.
Jr., to arbitrate a dispute over the subcontracting of snow plowing. Hearing on the matter
on October 7, 1998 in Burlington, Wisconsin. Post hearing arguments were received by the
undersigned by December 8, 1998. Full consideration has been given to the evidence,
and arguments presented in rendering this Award.
During the course of the hearing the parties where unable to agree upon the framing
of the issue
and agreed to leave framing of the issue to the undersigned. The undersigned frames the
"Did the Company violate the parties' collective bargaining agreement when it
subcontracted snow removal?"
"If yes, what is the appropriate remedy?"
. . .
The employer shall have the right to manage the business and direct the work
forces, to assign employees to work; to determine the number of employees required;
to plan, direct and control operations and production schedules; to control raw
materials, semi-manufactured and finished parts which may be incorporated in the
products manufactured at the locations determined by the employer; to introduce new
or improved methods, tools, equipment or facilities, and to continue to establish,
modify and enforce reasonable rules and regulations; and shall have such other normal
and inherent rights of management as are not limited by this Agreement.
The Company retains the right to hire, suspend, discharge, demote, discipline
for just cause, transfer and the right to relieve employees from duty because of lack of
work provided that in the exercise of these rights the Company will not violate any of
the terms of this Agreement.
. . .
The parties recognize the Employer has contracted work from time to time in the past
and this Agreement maintains that standard for the Employer. Work which does not
come under this standard will not be contracted if it could be performed by available
equipment when there are employees laid off or to be laid off who are qualified to
peform this work and where the work would provide such employees with a full work
. . .
The Company and the Union have for many years been parties to a collective
agreement which covers front end loaders, washer and crusher plant operators, mechanics,
drivers, and working foreman employed in the Company's sand and gravel pit stripping
performed in Racine, Kenosha and Walworth Counties. The Company has for a long period
had a snow removal crew made up of employes to remove snow from its yard. Employes
each winter to be on the crew. They would be used both during regular and outside of
working hours. In 1994 the Union filed and won in arbitration a grievance over how
called in on weekends to remove snow. Afterwards the Company stopped calling in
employes to do
snow removal and stopped having employes perform snow removal on weekends.
Thereafter the Company began having snow removal problems and twice during the
winter of 1996-97 the
Union filed complaints of icy conditions at the Company's premises. For the 1997-98 winter
Company subcontracted snow removal. On November 17, 1997 the Union filed the instant
grievance alleging the Company's actions violated the collective bargaining agreement.
it was processed to arbitration in accord with the party's grievance procedure.
The record demonstrates the Company did not subcontract all snow removal but only
passageways and parking areas of approximately twenty per cent (20%) of the areas which
Company needs snow removed from. The record also demonstrates the subcontractor has
snow removal equipment, which the Company does not have, which allows it to more
efficiently remove snow.
The Union contends the Company has engaged in
an attempt to circumvent the 1994
Arbitration decision by failing to implement the award, experimenting with several poorly
snow removal efforts, culminating in the subcontracting of snow removal. The Union asserts
Company's actions are an attempt to evade an arbitrated matter with a solution that because
did not like the way snow removal was assigned it would not assign snow removal at all.
points out that for many years before the 1994 snow removal award the Company effectively
snow using its own employes. The Union argues the Company's subcontracting is arbitrary,
unnecessary and retaliatory, and therefore violates the collective bargaining agreement. The
would have the undersigned sustain the grievance and direct the Company to cease
snow removal. The Union would also have the undersigned direct the Company to pay
amount equal to the man hours spent by the subcontractor multiplied by the collective
agreement's overtime rate.
The Company asserts it has the right to subcontract under the subcontracting and
rights provisions of the collective bargaining agreement. The Company acknowledges there
arbitration award over the snow removal crew. However, the Company asserts that snow
not adequate and left unsafe conditions because it did not have the proper equipment for
removal. The Company was also aware of liability concerns if it ignored the problem. The
points out only twenty per cent (20%) of snow removal is done by the subcontractor who has
proper equipment to do the job. The Company also points out employes are not required to
work if the
temperature goes below a certain level and office and clerical employes may still be required
to work. The Company concludes that it may subcontract work if certain conditions are met
and in this
matter those conditions have been met. The Company also points out this was not a cost
measure but in fact is a more expensive but safer and efficient solution to a problem.
The Company would have the undersigned deny the grievance.
In order for the Union to prevail in the instant matter it would have to demonstrate
Company violated Article 26 of the parties' collective bargaining agreement. This provision,
requiring the Company to meet certain conditions, allows the Company to subcontract work
no employes are laid off or have a reduced workweek and they are qualified to perform the
There is no evidence there are employes on lay off status or have a reduced workweek.
Thus the Union
has failed to demonstrate a violation of Article 26.
The Union has also claimed the Company's actions are merely an attempt to
October 20, 1994 overtime arbitration award. However, the Union did not dispute the
testimony that the subcontractor has equipment to more efficiently and quickly do snow
certain key areas of the Company's facilities. The record also demonstrates the Company
subcontract all snow removal. While the Union may view the Company's actions as
is no guarantee of overtime in the collective bargaining agreement. The Company also had
under the collective bargaining agreement's Management Rights' clause to introduce new or
methods at the facility. Thus, while the Union may not agree with the Company's actions,
do not violate the October 20, 1994 arbitration award and do not violate any provisions of
collective bargaining agreement.
Based upon the above and foregoing, and the arguments, evidence and testimony
undersigned concludes the Company did not violate the parties' collective bargaining
it subcontracted snow removal. The grievance is therefore denied.
The Company did not violate the parties' collective bargaining agreement when it
subcontract snow removal.
Dated at Madison, Wisconsin, this 5th day of January, 1999.
Edmond J. Bielarczyk, Jr. /s/
Edmond J. Bielarczyk, Jr., Arbitrator