BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AMERICAN NATIONAL RED CROSS
CLARA BARTON BRIGADE, LOCAL 1205, AFSCME,
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
Barton Brigade, Local 1205, AFSCME, AFL-CIO (hereinafter referred to as the Union)
that the Wisconsin Employment Relations Commission designate Daniel Nielsen, a member
staff, to serve as arbitrator of a dispute over the performance of set-up work by supervisors.
hearing was held on November 12, 1998, in Green Bay, Wisconsin, at which time the parties
afforded full opportunity to present such testimony, exhibits, other evidence and arguments
relevant. No stenographic record was made of the hearing. The parties submitted
which were exchanged through the arbitrator on January 22, 1999. The parties requested ten
for submitting any exceptions. No exceptions were submitted, and the record was closed as
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 failed to assign the
grievant, Julie Olson (nee' Umentum) 30 minutes of set-up time on April 20, 1998?
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 PROCEDURE
. . .
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.
. . .
ARTICLE XII - HOURS OF
. . .
Section 12.5.3 Set-Up
The Employer will schedule minimum set
up times in accordance with the following:
Set Up Time
Mobiles: 30 minutes
Repeat mobiles: 15 minutes
Fixed sites: 30 minutes
Apheresis: 15 minutes
This does not preclude staggering the arrival
time of employees so that not all employees are
scheduled for set up.
. . .
The Employer supplies blood and blood products to hospitals in the Midwest from
in Madison and Green Bay, Wisconsin. The Union represents the non-supervisory nurses
in blood collection. Nurses under this contract are classified as Collection Specialists I. The
Julie Olson, is a Collection Specialist I who has worked for the Red Cross for eight years out
Green Bay office.
On April 20, 1999, Olson was told to report to the donor room at the Green Bay
1:00 p.m. When she arrived, she observed that two supervisory nurses, Jane Gerbach and
Killinger, both Collection Specialist II's, had already arrived and had set up the equipment to
blood. Set-up includes calibrating equipment, and documenting what equipment is being
that it is appropriate and safe. Set-up typically takes about 30 minutes. Olson asked
she had not been called in to do the set-up, and Killinger told her it was already done.
The instant grievance was filed later that day. In her grievance, Olson alleged that
Employer violated the contract by having Collection Specialist II's do set-up rather than
calling in a
Collection Specialist I. The dispute was not resolved in the lower steps of the grievance
and was referred to arbitration. A hearing was held on November 12, 1998, in Green Bay.
At the hearing, Olson testified that she knew of occasions when supervisors did
but only in conjunction with staff nurses. Olson said that it was not uncommon for
draw blood, and that if supervising nurses were not working in a supervisory role, they
function as staff nurses.
Sue Killinger testified that for regular collections all staff are scheduled to arrive a
early to work set-up, but that for special collections (for example, people donating blood for
themselves) the starting times are staggered, depending upon the number of donors and the
staffing. Staff are randomly assigned from the pool to do set-up for special collections. She
estimated that 5% of collections are specials.
Killinger testified that CS II's are normally needed as supervisors, but that if the
slots were filled on a given day, the CS II would go into the pool as a staff nurse. Killinger
it was common for CS I's (staff nurses) and CS II's (supervisory nurses) to work together on
but she was not aware of any other instance since the collective bargaining agreement was
which CS II's did set-up to the exclusion of CS I's. Killinger was aware of an instance on
1997, prior to the collective bargaining agreement, where set-up had been done by a CS II
as a supervisor and a CS II working as a staff nurse, with no CS I present.
The parties stipulated that there was a past practice of allowing supervisors to do
without the presence of a bargaining unit member at the Employer's Madison location, but
stipulated that some practices varied between Madison and Green Bay. 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 contract allows supervisors to perform
work in accordance with past practice, but that the clear past practice at the Green Bay
been to have them perform this work only in conjunction with CS I's. Section 12.5.3
of the contract
makes it clear that this work must be assigned to bargaining unit members in the first
Employer will schedule minimum set up times in accordance with the following:
. . . fixed sites: 30
minutes . . ." The parties have struck a
balance between work preservation and efficiency by allowing supervisors to
occasionally share set-up work. The Employer may not now alter that balance by claiming
this work exclusively for
The Position of the Employer
The Employer takes the position that there has been no contract violation and that the
grievance must be denied. This grievance concerns a very narrow subset of cases. In
collections, which are 90-95% of the workload, all employes are scheduled to come in for
In the case of special collections, reporting times are staggered, because less staff is needed.
Union concedes that there has been a practice of allowing supervisors to act as staff nurses,
allowing supervisors and staff nurses to work together on set-up. The assignment of staff
including supervisors acting as staff nurses, is made randomly from the available pool of
Thus it is inevitable that at some point an assignment would be made, as it was here, where
supervisor and a supervisor working as a staff nurse would do the set-up for a special
without a regular staff nurse being assigned. It is extremely rare, since it involves the
a random selection and an occasion where a supervisor is working as a staff nurse, but it has
happened prior to the contract and it was bound to happen sooner or later post-contract. It is
a practice for being rare. Since the contract specifically allows supervisors to perform
work in accordance with past practice, there is no contract violation.
Article XI of the collective bargaining agreement provides that supervisors "may
work normally performed by members of the bargaining unit. The bargaining unit work
by supervisors shall be in accordance with past practice." The parties agree that part of the
bargaining unit work performed by supervisors has been set-up work. They disagree on
Employer in this case was consciously attempting to exclude unit nurses from set-up work.
The Union's concern is that the Employer is seeking to establish a right to use
set-up work to the exclusion of bargaining unit personnel. The Employer's contention is that
happened in this case was a truly random occurrence in that the assignment resulted from a
collection, on a day when a supervisor was working as a staff nurse, where the supervisor
randomly chosen from the pool of staff nurses to report early for set-up. Accepting the
claims that (1) supervisors rarely work as staff nurses; and (2) special collections are the
occasions on which all scheduled employes are not called in early for set-up; and (3) the
the employes for set-up work on special collections is done randomly from the pool of staff
it is not possible to find a contract violation. The record shows that this has happened once
in March of 1997, and the
Employer attributes that case to the same convergence of unusual events. The Union
this was pre-contract. Granting that point, it must be noted that this is an initial contract. In
XI, the parties make specific reference to supervisors performing unit work "in accordance
practice." Presumably the parties had something in mind when they bargained this language,
order for the quoted phrase to have any meaning, it must include clear practices that pre-date
1/ Given a choice
between two permissible interpretations, one of which gives meaning to all of the words and
phrases used in the contract, and one of which renders a provision mere surplusage, the
should be favored. Elkouri, How Arbitration Works, 5th Ed. (Volz, Ed., BNA
1997), at pps. 493-495.
Contrary to the Union's view of this case, the Employer is not claiming any sweeping
to reserve set-up work to supervisors. Instead it is asserting the right to have supervisors
as staff nurses included in the pool when making random selections for set-up work on
collections. The evidence suggests that this has been done in the past. Granting that there is
single example, the mixture of unusual circumstances and random chance that would cause it
happen are such that there would not be many examples. While the Union's concerns for
protecting the integrity of its bargaining unit and preserving the unit's work are
Employer has the right to hold the Union to its bargain. The Union has agreed that
perform unit work in accordance with past practice. The Employer has satisfactorily
that having supervisory nurses working as staff nurses included in the overall pool for
assignment to set-up work on special collections is a past practice. It follows that the
not violate the contract in this instance.
On the basis of the foregoing, and the record as a whole, I have made the following
The Employer did not violate the collective bargaining agreement when it failed to
grievant, Julie Olson (nee' Umentum) 30 minutes of set-up time on April 20, 1998. The
Dated at Racine, Wisconsin, this 28th day of April, 1999.
Daniel Nielsen, Arbitrator