BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1752-E, AFSCME, AFL-CIO
THE SCHOOL DISTRICT OF
(Grievance of Karen Anderson)
Mr. David A. Campshure, Staff Representative, on behalf of the
Godfrey & Kahn, S.C., by Mr. Robert W. Burns, and
Mr. John A. Haase, on behalf of the District.
The above-captioned parties, herein "Union" and "District", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Pembine, Wisconsin, on January 4, 1999. The parties there agreed that I would retain my
jurisdiction if the grievance is sustained. The hearing was transcribed and both parties filed
reply briefs that were received by April 6, 1999. Based upon the entire record and the
the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the District violate Article X, Section 2(C), of the contract
when it failed to offer work to
grievant Karen Anderson in the summer of 1998, and, if so, what is the appropriate remedy?
Grievant Anderson, a full-time Custodian, has been employed by the District for
years. Throughout that time, she worked under a nine-month contract commensurate to the
school year. Anderson also worked as a Custodian during the summers of 1990, 1991,
1994 and 1997. She did not work in the summer of 1995 and 1996 because her husband
When Anderson worked in past summers, neither she nor any other summer
paid the contractually-provided wages and benefits they received during the regular school
Instead, their wages and benefits were unilaterally determined by the District.
Asked why she acceded to the District's failure to pay her the contractual wage rate,
Anderson replied that in about 1989-1990: "we were told [by then-District Superintendent
VanderZeyden] we wouldn't be working if we didn't take a cut in pay." For the summers
of 1990-1994, the District purported to subcontract out the summer work by running
advertisements seeking summer help; by accepting "bids" for the summer work; by providing
the cleaning materials required; and by signing contracts with the individuals hired. The
contract, for example, (Joint Exhibit 7), thus stated:
. . .
School District of Beecher-Dunbar-Pembine
Custodial Cleaning Contract
1. This contract is for the summer period of June
10, 1991, through August 14, 1991.
2. This contract cannot be sold
or assigned without the agreement and consent of the Board of
3. The sub-contractors are:
Ms. Karen Anderson
Ms. Barbara Faucett
Mrs. Lila Dal Santo
4. The contractors must do the
follow general clean-up of the school building.
A. Wipe and clean chairs and tables and desks.
B. Wipe and clean lockers.
C. Wipe and clean light fixtures.
D. Wash and clean windows inside
E. Wash and wipe
53,000 square feet of walls, and spot clean main areas.
F. Clean all bathrooms.
G. Before school starts, wash and
clean outside windows.
H. Wash and mop dry the gym floor.
I. Shampoo all carpets including
J. Strip all tile floors and wax.
5. The payment for the above
mentioned work 4. A through J will be $6,000.00
6. Omitted areas are:
A. Wood Shop
B. Gymnasium Floor
C. Kitchen cupboards and walls
7. The work is to be done to
the satisfaction of the Building and Grounds Committee of the
Board of Education and the District Administrator. Any unfinished work to be completed by
union members is to be costed out and subtracted from the contracted price of $6,000.00 or
if were (sic) held up do (sic) to maintenance delay we will not be docked of our $6,000.00.
8. It is understood that as
independent contractors, taxes, social security, L.T.D. and
Workman's Compensation is the responsibility of the sub-contractor.
. . .
This contract was signed by the three employes hired and then-District Superintendent
Anderson who was not on layoff status at the time and who was not suffering
reduction in hours - applied for summer work in 1998 that paid $7.50 an hour, but she was
down when the District hired three other individuals: Custodian Kris Willis, Janitor Debbie
Hilsabeck, and college student Adam Schmidt. That marked the first time Anderson
or any other
District employe for that matter - had ever been turned down for
summer work. District Superintendent Daniel Nylund testified that he did not select
because she would not make "a good team" working with Hilsabeck, a matter he never
Anderson before he summarily decided to not hire her in the summer of 1998.
Nylund added that the employes hired in the summer of 1998 represented a form of
subcontracting; that the District in 1997 earlier paid withholding taxes on Anderson's wages
out Social Security taxes when she worked during the summer of 1997; that it also did so in
the individuals hired, at which time it also deducted money for Medicare and the Wisconsin
Retirement System; and that the District "from 1995 for sure" to the present has deducted
summer paychecks whatever was required to be deducted from school district employes. He
that the District has not solicited subcontracting bids since 1995. Thus, all summer employes
since then have been directly hired and paid by the District.
The instant grievance protesting Anderson's non-hire was filed on May 26, 1998.
POSITIONS OF THE PARTIES
The Union maintains that the District violated Article X, Section C, of the contract
that language is "clear, unambiguous, and determinative" in stating that the District during
recesses must hire qualified, senior members of the bargaining unit before it can hire
unit employes. The Union also contends that a prior arbitration award, the
Burns Award, supports
its position because it found that a subcontractor under the contract cannot be a bargaining
employe. It thus argues that the District here "did not subcontract the 1998 summer
and that the District also "did not hire independent contractors to perform the 1998 summer
work." As a remedy, the Union asks that Anderson be made whole for all the wages and
would have earned during the 1998 summer recess.
The District, in turn, asserts that its 1998 summer hiring practice conformed to the
subcontracting proviso found in Article XXII of the contract; that a past practice supports its
position; and that the Union's reliance on Article X, Section 2, is "misplaced" because
are not covered by the term "school recesses", as reflected by the "consistent, clear and
practice of the parties".
This case partly turns on Article X of the contract, entitled "Hours of Work,
Sunday Pay", which states in pertinent part:
1. This Article is intended only to
provide a basis for calculating overtime and shall not
be construed as a guarantee of hours of work per day or per week. Overtime shall not be
than once for the same hours of work.
2. A) The work week and work
hours, including lunch hours and coffee breaks, shall
be as presently posted until changed by negotiations. However, the parties agree the
the right to establish the work hours for newly-created positions. Employees must take at
least a ten
(10) minute non-work break for lunch.
B) School term employees work the
180 days that students are present, and, if requested,
up to five (5) days before the start of school and, if requested, up to five (5) days after the
C) During school recesses, school term
emloyees and regular part time employees will
be offered any available work before anyother employee is hired provided that the employee
satisfactorily preformed the work before. Positions will be offered to employees on a
provided that the employee is qualified. The Board's determination of qualifications shall be
The employee selected shall be notified a minimum of five (5) days in advance. Employees
refuse such work during school recesses without penalty.
. . .
The key question to be answered under this language is whether summer custodial
within the definition of "school recesses" in Section C. The District argues that "recesses"
to breaks during the regular school year such as winter and spring breaks
and that it does not
apply to summer work. The record indeed shows that the District for about the last ten years
hired summer help without paying the contractually provided wages and benefits and without
following seniority, thereby supporting the District's position. This practice under most
circumstances would be enough to carry the day for the District since the record also shows
Anderson in 1998 was not laid-off and that she did not have her hours reduced.
Here, though, Anderson testified that she in past years never sought her rights under
contract because former District Superintendent VanderZeyden once warned her: "We
working if we didn't take a cut in pay." I therefore find that the practice here came about
of VanderZeyden's threat and that, as a result, the practice should not be
given much weight. To do otherwise would in effect reward the District for
which is something I will not do.
The term "school recesses", then, must be given its ordinary meaning, one which by
includes the summer "recess", because that is the longest school "recess" of the year.
Elsewhere, Article XXII, entitled "Subcontracting", states:
The District has the right to subcontract work, provided that no
present employee(s) shall be laid
off or suffer a reduction in hours as a result of subcontracting or by the use of volunteers
The District asserts that the word "subcontracting" is ambiguous and that it therefore is
consider the past practice that has arisen over summer work.
I disagree. The word "subcontracting" is a word of art which means the hiring of
employes. Accordingly, it cannot by definition refer to the hiring of current
employes who are already
covered by a collective bargaining agreement and who are already on an employer's payroll.
the District in the summer of 1998 hired two employes who were in the bargaining unit
and Hilsabeck it is rather obvious that that situation did not entail "subcontracting"
normal definition of that term. Hence, there is no merit to the District's claim that it was
free to not
hire Anderson because it "subcontracted" out summer work in 1998.
The District argues for a contrary result by claiming that its right to contract out
work was upheld by arbitrator Coleen A. Burns in a prior subcontracting case between the
Beecher-Dunbar-Pembine School District, Case 18, No. 35907, MA-3900 (7/86). That case
though, as correctly pointed out by the Union, centered on the narrow issue of whether the
could subcontract out work during the summer recess when no unit employes were laid-off
none of them had their hours reduced. Arbitrator Burns ruled that the District in those
could subcontract work. In so ruling, however, Arbitrator Burns expressly wrote, at 6:
. . .
The undersigned reminds the parties that the undersigned was
asked to determine whether or not
the work in dispute could be performed by subcontractors. The undersigned was not
make a determination as to whether any individual is or is not a subcontractor and the
does not make such a determination herein.
. . .
Here, we are not dealing with "subcontractors" as that term is commonly understood.
are dealing with the hiring of District employes (Willis and Hilsabeck) and the hiring of a
employe (Schmidt) who was not a subcontractor. The Burns
Award hence centered on a different
However, the Burns Award is instructive on the question of
whether summer work takes
place during a "recess", as the District there apparently conceded that it was since the
before Arbitrator Burns was:
Must bargaining unit members be offered bargaining unit work
caused by absent bargaining unit
members or during summer recesses, before the District may subcontract such work?
Id, at 1.
This stipulated issue and the District's then-failure to claim that summer work was
covered by the term "school recesses" referenced in Article X, Section 2(C), of the contract
undermines the District's contrary argument here. It also shows that both the District and
over thirteen years ago agreed on what the term "school recesses" covered and that it is the
not the Union, which is now attempting to change the meaning of this key term.
The Burns Award is also instructive because in determining
the meaning of the word
"subcontract" in Article XXII, Arbitrator Burns found, at 4: "Applying the ordinary and
commonly-accepted meaning herein, a 'subcontractor' is not an 'employe'". That rather
rudimentary point was
true in 1986 when Arbitrator Burns issued her decision and that is true today, which is why
no merit to the District's claim here that its use of summer help in 1998 constituted some
"subcontracting" authorized by Article XXII.
The District further claims in its reply brief, at 3-4: "The District's summer work
1998 was consistent with the parties' repeated past practice and was, therefore, within the
of subcontract work under Article XXII of the collective bargaining agreement."
This claim ignores the fact that the District up to 1998 had always hired
Anderson and other
bargaining unit members whenever they applied for summer work. The District therefore
that past practice in 1998 when for the first time in over a decade it passed
over Anderson. This
claim also ignores the fact that the District up to at least 1995 went through the motions of
subcontracting the summer work through the device of subcontracting "bids" and by having
successful "bidders" sign the kind of contracts
referenced above that purportedly reflected their independent contractor status. By
1998, the District
no longer went this route since all three summer employes it hired were clearly District
The District also asserts that its position is supported by Arbitrator Christopher
decision in Local 587, District Council 48, AFSCME, AFL-CIO, and Milwaukee Area
District Board of Vocational, Technical Adult Education, Case 417, No. 4593, MA-6808
(1992), wherein he ruled that: (1), the term "subcontracting" is ambiguous, thereby
use of parol evidence to properly ascertain its meaning; and (2), the practice before him
the subcontracting out of work. Arbitrator Honeyman thus ruled:
. . .
[I]n this particular development, the evidence is that such
arrangements have continued on
a repeated basis for at least 20 years, sometimes for years at a time. I note also that the
submitted by the employer to the effect that in numerous rounds of collective bargaining, the
has attempted to obtain restrictions on subcontracting, as well as a broader definition of who
constitutes an employee, always without success in the final bargain. . .I therefore find that
the bargaining history and the well known past practice of such use of contractors in this
are a more persuasive guide to the interpretation of the subcontracting and employee
than is the 'right to control' test, which as a legal concept does not show the same evidence
past acceptance by these parties. . .I am persuaded, however, that as an arbitrator bound to
the meaning of an agreement between the parties, such evidence of the mutually understood
accepted [if grudgingly] past practice is a more reliable guide to the meaning of this
is even a commonly-accepted principle of legal interpretation.
. . .
Here, by contrast, the Union in negotiations never attempted to broaden the definition
word "employee" the way the union did there. Hence, it is the District which is trying to
meaning of this term so that it includes "subcontractors". Moreover, there is no evidence
Union here ever tried to obtain restrictions on subcontracting in negotiations the way the
there. In addition, the employer there did not provide for unemployment compensation or
compensation, and it also did not take out taxes or provide health insurance, sick leave, or
benefits normally found in an employer-employer - employe relationship. Here, on the other
Superintendent Nylund acknowledged that the District in 1998 deducted withholding taxes on
earned; that it also paid Social Security taxes on those wages; that it deducted money
and that it made contributions to the Wisconsin Retirement System on behalf of the employes
The summer employes thus were treated as the District's employes which is not
surprising since the
record establishes that they were employes, and not subcontractors.
I therefore conclude that the District violated Article X, Section 2(C), of the contract
it refused to hire Anderson for the 1998 summer work since she was fully qualified to
work after being a full-time Custodian for about 15 years and after performing similar work
summers of 1990, 1991, 1992, 1993, 1994, and 1997 - all without any complaint from the
That, then, raises the question of what Anderson should have earned for an hourly
she been hired for the 1998 summer work. The District points out that it for years
established the summer hourly rate; that the Union never attempted to bargain over the
and that it paid its summer help $7.50 an hour in 1998 without any objection from the
One problem with this claim is that Appendix "A" of the contract, entitled
Head Cook $9.79 $10.08
Assistant Cook 9.20 9.48
Custodian 9.79 10.08
Secretary 9.79 10.08
Teacher Aide 9.79 10.08
The Employer shall be allowed to hire a grass cutter for summer
months and such employee shall
not be entitled to any of the benefits contained in this Agreement and shall be considered a
* Pursuant to Article X, Employees
receive an additional $.20
per hour shift differential for all hours
worked after 4:00 p.m.
Since this language states that only the summer grass cutter will
not receive the contract rates and
benefits listed above, the necessary implication is that all other summer
employes are to receive
whatever wages and benefits they are paid during the regular school year. Hence, Anderson
entitled to be paid the $10.08 an hour set forth in the contract, along with all other
The second problem with the District's claim is that the District was able to pay the
hour summer rate only after Superintendent VanderZeyden threatened Anderson that she
receive any summer work unless she agreed to whatever hourly rate was unilaterally set by
District. That being so, there is no reason why the District should profit from that threat any
by forcing Anderson (or any other employes for that matter) to accept anything less than the
rate and benefits mandated in the contract.
The District thus must make her whole by immediately paying to her all monies and
she would have earned for the 1998 summer work at the hourly rate of $10.08, minus any
would not have earned but for the District's refusal to hire her.
In addition, and lest there be any further violation of Anderson's rights or the rights
other employes, I find that the District must satisfy all of the following factors
in order to establish
a true subcontracting relationship as that term is used in Article XXII of the contract: (1), its
to subcontract bargaining unit work must be based on good faith considerations which are not
at subverting the protections provided by Article X, Section 2(c), of the contract; (2), it
any retirement or Social Security contributions on behalf of any workers hired and it cannot
any state or federal taxes from their wages; (3), the workers hired must have the option of
using their own equipment and materials or District equipment and materials; (4), the
be, in fact, independent contractors over whom the District has no right of
control other than to
review the end product of their work; (5), the workers cannot be part of any
relationship when they perform subcontracting work; and, (6), the workers cannot be
punch any District time card or to in any other way keep track of their individual work time
District. If the District fails to meet each and every one of these factors, it must make whole
affected employes by paying to them all wages and benefits they would have earned had they
hired. See Continental Can Co., Inc., 29 LA 67 (Sembower, 1956); Bridgeport Brass Co.,
LA 151 (Donnelly, Chair, 1955); Weber Aircraft Corp., 24 LA 821 (Jones, 1955); Madison
Metropolitan School District, Dec. No. 6746-E (12/86).
In light of the above, it is my
1. That the District violated Article X, Section 2(C), of the contract when it
offer custodial work to grievant Karen Anderson for the 1998 summer recess.
2. That to rectify said contract violation, the District shall make Karen Anderson
by immediately taking the remedial action stated above.
3. That if the District chooses to have summer work performed in the absence of
subcontracting arrangement as set forth above, the District must hire Karen Anderson and
qualified bargaining unit employes on the basis of seniority before it can hire any
4. That to resolve any questions that may arise over application of my Award, I
retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 11th day of May, 1999.
Amedeo Greco, Arbitrator