BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AMERICAN NATIONAL RED CROSS
CLARA BARTON BRIGADE, LOCAL 1205, AFSCME,
(Collection Clerk Grievance)
Clark & Hill, PLC, by Attorney Fred W. Batten, 500
Woodward Avenue, Suite 3500, Detroit, Michigan 48226-3435, appearing on behalf of the
American National Red Cross.
Mr. Laurence Rodenstein, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, 8033 Excelsior Drive, Suite B, Madison, Wisconsin
53717-1903, appearing on behalf of Local Union 1205.
American National Red Cross (hereinafter referred to as the Employer) and the Clara
Brigade, Local 1205, AFSCME, AFL-CIO (hereinafter referred to as the Union) requested
Wisconsin Employment Relations Commission designate Daniel Nielsen, a member of its
serve as arbitrator of a dispute over the alleged performance of unit work by collection clerks
another bargaining unit. A hearing was held on November 12, 1998, in Green Bay,
which time the parties were afforded full opportunity to present such testimony, exhibits,
evidence and arguments as were relevant. No stenographic record was made of the hearing.
parties submitted post-hearing briefs which were exchanged on January 22, 1999. The
requested ten days for submitting any exceptions. No exceptions were submitted, and the
closed as of February 1, 1999.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Now, having considered the evidence, the arguments of the parties, the relevant
of the contract and the record as a whole, the arbitrator makes the following Award.
The parties stipulated that the following issue should be determined herein:
Did the Employer violate the collective bargaining agreement
when it assigned non-bargaining
unit employes, Collection Clerks, to perform recovery duties for reactive donors?
If so, what is the appropriate remedy?
ARTICLE I - RECOGNITION
The Employer recognizes the Union as the
sole and exclusive bargaining representative for the
purposes of collective bargaining under the National Labor Relations Act on behalf of all
LPN's who perform allogeneic, autologous, and apheresis collection duties working out of
Madison and Green Bay locations in blood collections; all hereinafter collectively referred to
Employees; but excluding RN/LPN staff with additional duties, temporary personnel as
Section 1.3, Nursing Assistants (nursing students) and further excluding members of Local
other professional employees, office clerical employees, confidential employees, guards,
supervisors, as defined in the National Labor Relations Act, and all other personnel.
. . .
ARTICLE V - MANAGEMENT RIGHTS
Except as may be expressly limited by this
agreement, the employer has the sole right to plan,
direct and control the working force, to schedule and assign work
to employees, to determine the means, methods and schedules of
operation for the continuance
of its operations, to establish reasonable standards, to determine qualifications, and to
efficiency of its employees. The Employer also has the sole right to require employees to
reasonable rules and reasonable regulations, to hire, layoff or relieve employees from duties
maintain order and to suspend, demote, discipline and discharge for just cause. The
the right to assign temporary personnel in any other duties at such times as natural and
disasters threaten to endanger or actually endanger the public health, safety and welfare or
continuation beyond the duration of such disasters. The Employer shall determine what
a natural and man-made disaster as expressed in this Article.
. . .
ARTICLE IX - GRIEVANCE
. . .
Section 9.9 Arbitrator's Jurisdiction
The jurisdiction and authority of the
arbitrator and his opinion and award shall be confined
exclusively to the interpretation and/or application of the provision(s) of this Agreement to
between the Union and the Employer. He shall have no authority to add to, detract from,
amend, or modify any provision of this Agreement; to impose on either party a limitation or
not provided for in this Agreement; or to establish or alter any wage rate or wage structure.
arbitrator shall not hear or decide more than one (1) grievance without the mutual consent of
Employer and the Union. The written award of the arbitrator on the merits of any grievance
adjudicated within his jurisdiction and authority shall be final and binding on the aggrieved
the Union and the Employer.
. . .
ARTICLE XI SENIORITY
. . .
Section 11.13 Work By Non-Bargaining Unit
The Employer may assign qualified
Supervisors (Team Supervisors, and Collection Specialist II's)
who will not be members of the bargaining unit covered by this Agreement to any
who may perform work
normally performed by members of the bargaining unit. The
bargaining unit work performed by
supervisors shall be in accordance with past practice. The Employer may also utilize
Assistants (student nurses) in accordance with past practice.
. . .
The Employer supplies blood and blood products to hospitals in the Midwest from
in Madison and Green Bay, Wisconsin. The Clara Barton Brigade, Local 1205, AFSCME
the non-supervisory nurses who work in blood collection at both locations. The Nurses are
as either Collection Specialist I-RN or Collection Specialist I-LPN. AFSCME also
separate bargaining unit comprised of the remaining non-supervisory, non-nursing employes.
employes are represented by Local 1558.
The Red Cross regularly conducts blood drives at off-site locations. The blood
process begins with screening and assessing the potential donors. This is accomplished
asking a series of questions to determine if the donor is a member of any group at high risk
or other blood borne diseases, and to assess the donor's general health. The information is
a Blood Donor Record, a drop of blood is taken to test for sufficient hemoglobin, and the
blood pressure and pulse are taken. If the donor is suitable, blood is then drawn. The
the donor and the drawing of blood are performed by Collection Specialists. After the blood
drawn, the donor is given juice and cookies and is observed for a period, to insure that he or
not a reactive donor -- i.e. that there is no adverse physical reaction to the loss of blood.
adverse reactions are dizziness, fainting and nausea, though there are other possible
as memory loss, rigidity, incontinence or even convulsions. If a donor has a moderate
reaction, the normal response would be to have him or her lie down with feet elevated, place
wet cloth on the forehead, and take blood pressure and pulse to determine whether they are
normal range compared with the readings taken during the assessment. In case of a serious
reaction, the personnel staffing the collection summon emergency medical help or call the
personal physician. They do not provide direct medical care themselves.
On April 17, 1998, a mobile unit from the Green Bay office went to Sheboygan
School to collect blood. CS I's Vivian Krieg and Teresa Allen and Collection Clerk Ron
among the employes staffing the unit. In the course of the collection work, King and Allen
Adams attending to a reactive donor who had passed out in the recovery area. Adams placed
donor on a cot, elevated his feet and consulted with the charge nurse to ask where to put the
While collection clerks in the Madison area had attended to reactive donors for several years,
Green Bay area this work has always been performed
by nurses, and collection clerks have been limited to driving the vehicle, handing out
cookies, relieving Mobile Unit Assistants on break and other chores as assigned. When
Adams why he was doing recovery work, he said he had been assigned to do it, and that he
given some training in how to take a blood pressure reading. He told her he felt
he had no background in recovery work.
The instant grievance was filed the following day, protesting the assignment of
work to non-unit personnel:
Collection Clerks (non-licensed) being assigned to to (sic) do
Nursing functions - i.e. Taking
blood pressures - Recovering reactive donors.
The grievance was not resolved in the lower steps of the grievance procedure and was
arbitration. A hearing was held in Green Bay on November 12, 1998, at which time, in
the facts recited above, the following testimony was taken:
Teresa Allen testified that she is the President of Local 1205, and participated in the
negotiations over the initial collective bargaining agreement. One of the central issues in
negotiations was the Employer's desire to have non-nursing personnel involved in
and the Union's opposition to this. Allen said that the Union succeeded in negotiating a
of phlebotomy duties to the nursing personnel in exchange for agreeing to the Employer's
On cross-examination, Allen said that she was aware that collection clerks played a
role in the
recovery phase of collections at the Employer's Madison location, although she was not sure
they were allowed to take donors' blood pressures. She agreed that employes were required
off on procedures after they had been trained in them, and to tell management if they no
comfortable in performing certain procedures.
John Ridgely testified that he is the Human Resources Manager for Red Cross and
participated in negotiations. According to Ridgely no one ever said across the table that
included in phlebotomy. Ridgely observed that there was a long-standing past practice of
collections clerks in the recovery process at the Red Cross's Madison location.
Susan Wettstein testified that she is the Collections Manager for the Red Cross in
and Iowa, and that collections clerks have been used to perform recovery at all of the
Green Bay. In Madison, they have performed the work since 1994 without incident.
compared the training plans for nurses with that of Ron Adams, and noted many shared
Review before use of labels and forms
Blood container tube assembly and inspection, numbering and
Management of over/under weight units
Assist (donor) reaction care and reporting
Operation and QC of dielectric sealer
Management of blood product labels and tie tags blood donor
Dietary scale QC
Maintenance or use of blood container scales, dietary scales,
Preparation/Transport of blood units and tubes
Temperature and pulse procedure
Blood pressure procedure
Management of collection supplies and inventory
Supply, equipment deficiency reports
Management of voided numbers
Blood container scale QC
Wettstein noted that the nurses and Adams were both trained to perform recovery
blood pressures, and expressed the opinion that Adams was competent to assist reactive
On cross-examination, Wettstein agreed that all nurses were trained to do every duty
collection clerk, plus other duties solely within their professional competence. While the
limits the taking of health histories and blood extraction to nurses, Wettstein expressed the
that, with additional training, collection clerks could perform both of these duties. In
donor's reaction, Wettstein said that an employe would compare the donor's blood pressure
blood pressure reading from the initial assessment and determine if it was either too high or
Wettstein agreed that blood collection, from taking health histories through recovery, was all
process. She said that the health history portion of the process was reserved to nurses
involved using professional judgment to interpret guidelines for approving a donor, while a
reaction occurs at the end of the process and does not require the same level of professional
Wettstein agreed that the Madison and Green Bay locations operate somewhat
and that some bargaining unit nurses in Green Bay perform duties that are only performed by
supervisors in Madison.
Additional facts, as necessary, will be set forth below.
POSITIONS OF THE PARTIES
The Position of the Union
The Union takes the position that the Employer has assigned work reserved to the
non-nursing personnel, and that this violates the collective bargaining agreement. One of the
issues in the negotiations over this contract was the preservation of blood collection work to
nursing employes. In exchange for a no-strike clause, the Employer acquiesced in the
demand for protection of the work historically performed by unit employes. The arbitrator
allow the Employer to now take back in arbitration what it bargained away at the table.
The entire thrust and purpose of Section 11.13 of the contract is to preserve nursing
members of this bargaining unit. Clearly recovery work is nursing work -- it demands
judgments, which are often based on the health assessment done by the nurses at the outset of
collection process. Only two exceptions are noted in Section 11.13 -- supervisors and
may perform unit work in accordance with past practice. Applying the principle of
est exclusio alterius, it follows that all others are barred from doing unit work.
The Union dismisses as irrelevant the Employer's contentions that collection clerks
adequately trained to perform recovery work, and that it is shared work in a team
Work jurisdiction clauses do not turn on whether someone else is qualified to do the work.
on whether the person doing the work is a member of the bargaining unit. Likewise the fact
Employer may choose to assign members of different bargaining units to work as a team
the terms of the collective bargaining agreement that restrict how the work can be distributed
Arbitrators are traditionally reluctant to disturb clear work preservation clauses in the
of efficiency or good business practices. The whole purpose of such clauses is to preserve
against the day-to-day whims of the employer. Moreover, this is at best a very questionable
practice, since it puts unqualified personnel in charge of detecting and responding to adverse
Even where there is no explicit language safeguarding work, arbitrators recognize the
principle of work preservation. They recognize that work preservation is the central purpose
of unions, and have uniformly been skeptical of appeals to overlapping duties, business
technological change. The arbitrator in this case should follow that course. It is clear that
recognition clause defines the work performed in the unit, and that work encompasses the
collection process. The recovery process phase requires the use of professional training and
judgment, and is no less a part of the overall process than is the initial assessment (which
management concedes could not be assigned to clerks).
Finally the Union asserts that the Employer is seeking a larger goal in this process --
continued deskilling and ultimate elimination of the nurses' jobs. In bargaining the Employer
to include the lower paid and lesser skilled job of phlebotomist in a clear effort to displace
highly paid nurses. Now it seeks to have collection clerks perform recovery duties. In the
case, it seeks to have non-unit employes do set-up work. The overall pattern that emerges is
to undercut and evade the commitments it made in bargaining with this unit. The arbitrator
recognize this larger aim and, rejecting it, enforce the agreement as written, order the
cease and desist its use of collection clerks for unit work, and make any affected employes
The Position of the Employer
The Employer takes the position that it acted within its rights under the contract, and
therefore the grievance should be denied. Management had retained the sole right to
assign work, determine means, methods and qualifications, and maintain efficiency. These
only be limited by an express provision of the contract. Each of these retained rights is
in this grievance, while there is no express limitation on those rights when it comes to having
Collections Clerks monitor donor recovery.
The Union's citation of Article I - Recognition is misplaced. While that clause
Union as the representative for nurses who "perform allogeneic, autologous, and apheresis
duties," it says nothing about other employes who perform those duties. Likewise, the
misreads Article XI - Seniority. While Section 13 of that Article is titled "Work By
Unit Personnel," the substance of that provision is a recognition of the Employer's right to
supervisors and students to do work normally performed by unit personnel. It is not a
the Employer's right to assign duties to collections clerks.
The Union's argument that collection clerks in Green Bay have not previously
donor recovery ignores the team approach used by the Red Cross and the many shared
across the team. This contract covers both the Green Bay and the Madison locations, and
clerks in Madison have long been involved in monitoring recovery without protest by the
Union bargaining team and the agreed upon contract language is the same for both locations,
single contract cannot mean one thing in Madison and another in Green Bay.
The Union's claim that the Employer is trying to undermine the integrity of the
is simply not borne out by the facts. The Union's witness, Krieg, admitted that the staffing
of 3 to 4 positions at the time of this grievance was the same as it has been for some time.
It is the
result of normal turnover. Certainly the Employer achieves some efficiencies by using clerks
portion of the donor recovery process, but the right to seek and achieve efficiencies is a right
management retained and the Union agreed to. The Employer seeks no more in Green Bay
already has in Madison and other locations -- full realization of the team approach to the
collection process. This goal and the methods used to achieve it are consistent with the
terms of the
collective bargaining agreement, and accordingly the grievance should be denied.
The question in this case is whether the Employer has the right to assign collection
monitor donor recovery and assist reactive donors, when this work has always before been
by nurses at the Green Bay location. In answering this question, it is necessary to determine
the contract reserves the performance of bargaining unit work to represented nurses and, if
is included in the definition of bargaining unit work.
Limitations on Performance of Unit Work
In Article V of the collective bargaining agreement, Management reserved its rights
determine the manner in which work is performed and by whom:
Except as may be expressly limited by this agreement, the
employer has the sole right to . . .
schedule and assign work to employees, to determine the means, methods and schedules of
for the continuance of its operations . . . to determine qualifications, and to maintain the
of its employees . . .
The Employer argues that its right to assign work between and among employes,
without regard to
their bargaining unit status, is preserved by Article V and is not limited elsewhere.
However, it is not
disputed that the Union set preservation of phlebotomy duties as a central goal in bargaining
initial contract, and that this topic was extensively discussed across the table. Article XI of
collective bargaining agreement addresses the assignment of work:
Section 11.13 Work By
Non-Bargaining Unit Personnel
The Employer may assign qualified
Supervisors (Team Supervisors, and Collection Specialist II's)
who will not be members of the bargaining unit
covered by this Agreement to any operational site who may
perform work normally performed
by members of the bargaining unit. The bargaining unit work performed by supervisors shall
accordance with past practice. The Employer may also utilize Nursing Assistants (student
in accordance with past practice.
If, as the Employer claims, there is no limitation on its right to assign work to non-unit
there is no need for a provision permitting supervisors and student nurses to perform the
of the unit nurses. In that case, anyone can do the work and Section 11.13 is merely
is not only surplusage, but it is unusual surplusage, since it limits the nursing work that can
performed by qualified nurse supervisors and nursing students to that allowed by past
leaving non-medical employes free to do any of the nurses' duties. It is not impossible that
what the parties intended, but it is extremely unlikely. 1/
1/ Given a choice
between two permissible interpretations, one of which leads to absurd results and one which
leads to sensible results, an arbitrator should normally choose the latter. Elkouri, How
Arbitration Works, 5th Ed.
(Volz, Ed., BNA 1997), at pps. 495-497.
The normal principles of contract interpretation hold that parties intend their words to
meaning and that interpretations that render language mere surplusage are
disfavored. 2/ Another
standard principle of interpretation is that where parties state exceptions, they are presumed
listed all of the exceptions. 3/ Section 11.13 does not begin by expressly stating a
general rule that
unit work is to be performed by unit personnel, but the listing of two specific exceptions
implies the existence of such an understanding by the bargainers. Inasmuch as the assertion
Employer of an unfettered right to assign work to employes without regard to their
status requires me, contrary to the standard principles of contract interpretation, to find that
contract sections are meaningless, I instead conclude that the contract does limit the right to
unit work to persons outside of the unit. 4/
2/ Id., at
3/ Id., at pg.
497. In connection with this, I also note that the Management Rights clause itself appears to
management the right to use temporary employes for all duties in the event of a disaster.
Again, this suggests that,
absent a disaster, there is some limitation on the right to use these employes for duties other
than those defined in
Section 1.3, i.e. short term projects and vacation relief.
4/ This conclusion is buttressed by the
testimony of the Employer's Collections Manager, Susan Wettstein.
Wettstein conceded that the contract limits the performance of the first two steps of the
screening/evaluating and extraction, to nurses.
Contours of Protected Unit Work - Phlebotomy
While the contract may limit the Employer's right to assign non-unit personnel to
certain bargaining unit work, the question of what constitutes protected work remains to be
answered. The Employer notes that there is a great deal of overlap between jobs in the team
environment of a mobile collection unit, and that collections clerks in Madison had been
donor recovery since 1994, three years before this contract was negotiated and four years
the filing of this grievance.
The contract cannot be read as protecting every task that has ever been performed by
Section 11.13 speaks to "work normally performed" by unit nurses. As the Employer
there is a necessary overlap between the functions of members of any working team, and
normally performed by nurses will also normally be performed by others. The Recognition
distinguishes these nurses from other employes, including other nurses, by defining unit
those "who perform allogeneic, autologous, and apheresis collection duties working . . . in
collections" and the Union concedes that its aim in negotiations was limited to preventing
personnel from doing phlebotomy work. Susan Wettstein's testimony confirmed this, in part,
she identified the taking of health histories and the extraction of blood as tasks which the
reserved to nurses. Taken as a whole, the preservation of work in the contract can most
be seen as going to the core medical functions performed in the blood collection process
Wettstein identified seventeen tasks as "shared" between Adams and nurses. It bears
remembering that Wettstein's definition of a shared task is one which both nurses and clerks
trained in. The Employer chooses which areas it will train its staff in, and the fact that it
train collections clerks in a given procedure says little about whether the contract allows
them to be
assigned to perform that procedure. 5/ That being said, fourteen of
the identified tasks primarily
involve equipment preparation, handling and maintenance, product transportation and record
They are related to phlebotomy work, in that they are necessary ancillary functions, but in
virtually all of the tasks performed by members of the mobile unit are necessary ancillary
to phlebotomy. Unit nurses may have a stake in the performance of some ancillary duties,
cannot be termed core medical functions.
5/ Indeed, Wettstein
voiced the opinion at the hearing that collection clerks, with training, could perform every
aspect of the collection process, including extraction.
Three of the tasks listed by Wettstein appear to involve the performance of medical
procedures on or direct care for a reactive donor:
Assist (donor) reaction care and reporting
Temperature and pulse procedure
Blood pressure procedure
Wettstein testified that the three phases of blood collection -- assessment, extraction
and post-extraction monitoring -- constitute a single process. She distinguished monitoring
and caring for
reactive donors from the first two aspects of the process because it did not require the same
professional judgment. On the face of it, this is difficult to understand. Donors have a
reactions, some obvious and some less so. Employes are required to judge whether a donor
a reaction and to assess how serious the reaction is, in part by taking the patient's vital signs
comparing them to normal readings and to the baseline readings taken by the nurse during
assessment phase of the process. It is counter-intuitive to suppose that the degree of
judgment required to assess and respond to actual illnesses of varying natures at the end of
collection process would be less than that required for a standardized general health
the beginning. Based on this record, I conclude that caring for reactive donors is a core
function performed in the blood collection process.
Contours of Protected Unit Work - Past Practice
As discussed above, the work reserved to unit nurses does not extend to every task,
clearly extends to the core medical functions of the blood collection process itself. Caring
donors is such a function. The Employer and the Union agree that, prior to the incident at
South High School, nurses had always performed this function in the Green Bay region.
they also agreed that collection clerks have been involved in caring for reactive donors since
in the Madison region. This contract covers both locations, and the Employer questions how
be that the same language would allow clerks to perform this work in Madison while
forbidding it in
The preservation of work to unit nurses is inferential. It is based on an interpretation
Articles I and XI. Article I refers to work performed "in blood collections." Article XI
work that is protected as "work normally performed by members of the bargaining unit." By
to work "normally performed," the parties have adopted a pragmatic rather than an abstract
for determining whether work is protected. They did so knowing full well that the contract
two operating locations, each of which had different practices as to the normal distribution of
Nurses in Green Bay "normally"
perform the task of caring for reactive donors. Apparently nurses in Madison
"normally" share that
task with collection clerks. Given the pragmatic standard used in the contract, there is
prevent practices which are uniform in one location from co-existing with contrary practices
uniformly followed in the other.
The Union seeks a cease and desist order and overtime pay for affected employes.
no proof in the record of actual lost time by either Krieg or Allen and I have no basis for
a monetary remedy for the incident at Sheboygan South High School on April 17, 1998. The
appropriate remedy is to direct the Employer to cease assigning the task of caring for
to collections clerks and other non-unit employes in its Green Bay office, except as may be
by the exceptions contained in Articles I and XI.
Articles I and XI provide exceptions whereby non-unit personnel can perform the
work of unit
nurses. The logical implication is that, absent the exceptions, the work could not be
those non-unit employes. This implication is strengthened by the concession of Susan
the contract does generally reserve the taking of health histories and the extraction of blood
nurses. Thus I have concluded that the contract does prevent the Employer from assigning at
some bargaining unit work to non-unit nurses.
The scope of the contract's work protection is not all encompassing. Article I
the unit nurses from other employes by their performance of "collection
duties . . . in blood
collections." While every task performed by personnel assigned is in some way connected to
collection, the bargaining history and the testimony at hearing establish that ancillary tasks
necessarily protected. However, the contract's protection does extend to the core medical
involved in the blood collection process. Given the need for professional training and
the assessment and care of reactive donors, and the testimony that that task is part and parcel
overall collection process, caring for reactive donors is fairly characterized as a core medical
The fact that the Madison location has allowed collection clerks to be involved in caring for
donors, while the Green Bay location has until this grievance reserved this work to nurses
render the work unprotected. In Article XI, the parties used the pragmatic standard of "work
normally performed" to describe protected work. They negotiated this language knowing
were differing practices at the two locations. Inasmuch as the language used refers to actual
conditions, it can accommodate both practices.
On the basis of the foregoing, and the record as a whole, I have made the following
The Employer violated the collective bargaining agreement when it assigned
unit employes, Collection Clerks, in its Green Bay location to perform recovery duties for
The appropriate remedy is that the Employer refrain from assigning recovery duties
reactive donors to non-unit personnel in its Green Bay location, except as may be permitted
the exceptions contained in Articles I and XI.
Dated at Racine, Wisconsin, this 28th day of April, 1999.
Daniel Nielsen, Arbitrator