BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 2484
(Contracted Employes Grievance)
Mr. Daniel R. Pfeifer and Mr.
Laurence Rodenstein, Staff Representatives, for the Union.
Mr. William A. Shepherd, Corporation Counsel, for the County.
Pursuant to the joint request of LaCrosse County and AFSCME Local 2484, the
Employment Relations Commission assigned me to act as arbitrator of a grievance filed
Hearing was held in LaCrosse, Wisconsin on January 30, February 9, and March 3,
stenographic hearing transcript was prepared and the parties agreed that said transcript was
official record of the proceedings. The parties filed post-hearing briefs and reply briefs, the
which was received June 9, 1998.
In its post-hearing brief, the Union states the issues as:
1. Did the County violate the collective bargaining
agreement by failing to recognize the persons
in question as regular full-time or regular part-time employes of LaCrosse County? Are
persons municipal employes?
2. If the answer to number 1 is
yes, then "did the County violate the collective bargaining
agreement by not applying the terms of the collective bargaining agreement to the positions
filled by the persons in number 1?"
3. If the answer to either
number 1 or number 2 is yes, then "what is the appropriate remedy?"
The County did not concur with the Union's proposed statement of the issues but did
propose a specific alternative in its post-hearing briefs.
The parties agreed that I could frame the issue after giving appropriate consideration
respective positions. I state the issue as follows:
Did the County violate the parties' collective bargaining
agreement by failing to apply the terms
of said agreement to individuals performing work for the County pursuant to contracts
County and Manpower, Inc., Olsten and/or American Business Resource Corporation? If
remedy is appropriate?
The Union acknowledges that the applicable collective bargaining agreement gives the
the right to subcontract. However, the Union asserts that if the County wishes to exercise
the County must relinquish control over the method and means by which the work is
Union argues that the County continues to control the method and means by which work is
and thus does not have a subcontracting relationship with Manpower, Olsten and American
Resource Corporation. The Union contends that the County is in fact either the sole employer
joint employer of the individuals in question.
Given the foregoing, the initial question to be answered is whether the County is the
employer or, in the alternative, a joint employer of certain individuals performing work for
pursuant to contracts with Manpower, Inc., Olsten and/or American Business Resource
When evaluating whether the County is the sole employer of the disputed individuals,
Wisconsin law as reflected in the decisions of the Wisconsin Employment Relations
Cesa #14, Dec. No. 17235 (WERC, 8/79); Sheboygan County Unified Board, Dec. No.
23031-A (WERC, 4/86); and Washburn County, Dec. No. 21674-A (WERC, 7/97). These
reflect that the critical questions that determine employer identity are who controls the
wages, hours and conditions of employment and who controls the hiring and firing of
By applying this law, I reject the Union's contention that the applicable analysis
on the question of whether Manpower, Olsten and ABR are "independent contractors." As
persuasively pointed out by the County, the cases cited by the Union in support of this
(Human Services Board Of Forest, Oneida and Vilas Counties, Dec. No. 20728-B (WERC,
7/90) and Madison Schools, Dec. No. 6746-E (WERC, 12/86) litigate the question of
individuals are independent contractors or employes. No one is
asserting in this case that the
individuals in question are independent contractors. Rather the
question here is who employs the
individuals-the County or Manpower, Olsten and ABR. Therefore, the "independent
cases are not directly applicable to the resolution of this case.
This is not to say that control of the method and means by which the work is
irrelevant to the issue at hand. Clearly, to the extent the County retains control over such
through supervision of the individuals in question, such retention of control is relevant to and
supportive of the Union's position in this litigation.
The critical questions of who establishes wages, hours and conditions of employment
controls hiring and firing are answered through a consideration of the facts presented by the
I proceed to that consideration.
As would be expected in litigation involving three different contracting agencies and
of 20 individuals performing various types of services, the factual record is not the same for
contracting agency or for each disputed individual. However, none of these factual
sufficient to produce differing outcomes and thus the parties have correctly chosen to litigate
on an all or nothing basis.
The parties do not significantly dispute the following facts:
1. Manpower, Olsten and ABR establish and directly
pay the wages and fringe benefits received
by the individuals in question. Said wages and fringe benefits are substantially less than those
received by bargaining unit employes represented by the Union.
2. Manpower, Olsten and ABR
take responsibility for matters such as social security payments,
tax withholding, unemployment compensation, and worker's compensation.
3. The County determines the
hours of work(when and how many) of the individuals provided
by Manpower, Olsten and ABR. The County makes payment to Manpower, Olsten and ABR
based on the number of hours worked by the individuals in question.
4. The County reserves the
right to refuse the services of any individual provided by Manpower,
Olsten or ABR. In such circumstances, Manpower, Olsten and ABR may give that individual
a work assignment with a different employer. Some of the individuals in dispute in this
proceeding had previously performed work for entities other than the County.
5. Once the individuals
provided through Olsten and ABR arrive at the County work site, the
County generally provides whatever materials and equipment are necessary to perform the
work. Manpower individuals using a car to perform their work provide their own vehicle.
Most of the individuals provided to the County through Manpower are directly trained and
supervised by individuals who are also provided to the County by Manpower. The
provided to the County through Olsten and ABR are generally trained and supervised by
The parties significantly disagree when it comes to the
of who hires, disciplines and
discharges the individuals in dispute.
As to hiring, representatives of Manpower, Olsten and ABR credibly testified that
organizations make the hiring decisions and that individuals who did not meet their
would not be hired even if recommended for hire by the County. The Union counters with
testimony that County employes were actively involved in locating and interviewing some
As to discipline and discharge, representatives of Manpower, Olsten and ABR again
testified that their organizations independently investigate disciplinary issues and make
decisions. The Union counters by citing the County's right to refuse the services of any
provided to them by Manpower, Olsten and ABR- a right generally exercised due to
From my review of the record as a whole, I am satisfied that Manpower, Olsten and
have the ultimate right to hire, discipline, and terminate the individuals in question.
When the County successfully refers individuals to Manpower, Olsten or ABR for
and/or assignment following an interview with a County employe, the County obviously
significant role in the hiring/assignment decision. Nonetheless, I find no persuasive basis for
discounting the testimony that if such referred individuals do not meet the standards of the
Manpower, Olsten or ABR, they will not be hired.
The County's ability to refuse the services of a referred individual does not terminate
individual's employment. Such individuals may be referred to another employer. Similarly, if
Manpower, Olsten or ABR determine that an individual engaged in misconduct (Manpower
the process of making such a determination at the time of hearing), the record persuades me
will take whatever disciplinary action they deem appropriate-even if the County has no
continuing to receive the individual's services.
Given all of the foregoing, I am persuaded that Manpower, Olsten and ABR control
and firing of the individuals in question and establish their wages and fringe benefits.
although the County establishes the hours of work and, as to some individuals, provides
supervision, I think it clear that under the CESA # 14, Sheboygan, and Washburn decisions,
County is not the sole employer of the individuals in question.
The issue of joint employer status is a closer one.
I begin by noting that existing Wisconsin law (Milwaukee Auditorium Board, Dec.
6543, WERC, 11/63; CESA #4, Dec. No. 13100-E (Yaffe, 12/77, p. 57); Milwaukee Area
VTAE, Dec. No. 16507-A (WERC, 6/79) primarily focuses on the question of whether
entities are so integrated by virtue of common management, common ownership, functional
integration of operations and centralized control of labor relations that they should be viewed
employer. This analytical approach is not applicable to a joint
employer dispute. As noted by the
Third Circuit Court of Appeals in a case cited by the Union herein (NLRB v.
Industries, 691 F. 2d 1117, CA 3 1982), litigation of joint employer
status does not focus on the
alleged existence of a single integrated enterprise but rather assumes the existence of
entities and asks whether "they share or co-determine those matters governing essential terms
conditions of employment . . ."
Under a joint employer analysis, the question in this case thus
becomes whether the County's
establishment of hours of work and its role in supervision is sufficient to make it a joint
Manpower, Olsten, and ABR.
Because hours of work and supervision are central to the employer-employe
conclude that the County is a joint employer with Manpower, Olsten and ABR. The question
becomes one of determining what impact this determination has on this case.
Citing City of Racine, Dec. No. 24949-A (Crowley, 6/88), affd. Dec.
(WERC, 1/89), the Union argues that if the County and Manpower, Olsten and ABR are
employers, there is no valid subcontract between the County and these contracting agencies.
City of Racine, the Union argues that given the invalidity of the subcontract, the County
obligated to apply the entire collective bargaining to the individuals in question.
First, I note that in City of Racine, the primary issue litigated was whether the City
a contract provision which allowed subcontracting so long as no layoff or reduction in hours
occurred. The Examiner/Commission concluded this provision was violated and ordered that
affected employes receive the contractually established wages and fringe benefits. Thus, the
Racine was different than the issue present here. I also note that here there is no evidence
contracts with Manpower, Olsten and ABR have caused any layoffs or reduction in hours.
The Examiner/Commission in Racine did go on to find that the City and Kelly
joint employers and that the contractual relationship between the City and Kelly therefore
a "true" subcontract. However, it should be noted that in City of Racine, the evidence
that the City "did everything" except physically pay the Kelly employes-including setting the
rate and hours and selecting and supervising the employes. Here, although I have found the
to be a joint employer with Manpower, Olsten and ABR, I have also found that these latter
entities have control over far more of the employment relationship than was the case in
Given all of the foregoing, I conclude that Racine is a substantially different case than
before me. To the extent there are underlying similarities, I simply do not find Racine
to the extent it can be read to hold that joint employer status cannot co-exist with a
The issue before me is limited to alleged violations of the contract between the
the Union. Because the County is not the sole employer of the individuals in question, the
obligation to honor the Union contract as to these individuals is limited to those portions of
employer-employe relationship which the County controls (i.e. those dealing with hours and
supervision). I have reviewed the contract between the Union and the County as to these
find no violation. As to the portions of the employer-employe
relationship controlled by Manpower, Olsten and ABR (i.e. wages, fringe benefits,
and discharge), there is no collective bargaining agreement before me. Thus, I have no
address these matters.
Given all of the foregoing, I conclude that the County has not violated the collective
bargaining agreement with the Union. Therefore, the grievance is denied.
Dated at Madison, Wisconsin this 21st day of May, 1999.
Peter G. Davis, Arbitrator