BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS UNION LOCAL NO. 695
WESTERN WISCONSIN TECHNICAL
Mr. Gene Gowey, Business Representative, Teamsters Union
Local No. 695, 1314 North Stoughton Road, Madison, Wisconsin 53714-1293, appearing on
behalf of Teamsters Union Local No. 695.
Mr. Robert Salls, Human Resources Manager, Western
Wisconsin Technical College, 304 Sixth Street, North, P.O. Box C-0908, LaCrosse,
Wisconsin 54601, appearing on behalf of Western Wisconsin Technical College.
Teamsters Union Local No. 695, hereinafter Union, and Western Wisconsin
College, hereinafter College, are parties to a collective bargaining agreement that was in
effect at all
times relevant to this proceeding and which provides for final and binding arbitration of
disputes. The parties by mutual agreement asked the Commission to appoint Paul A. Hahn
a grievance against the College in an informal, non-contractual arbitration setting seeking an
written opinion. Such agreement was confirmed by the parties in a letter from the Union to
Commissioner Paul A. Hahn dated July 15, 1999 and received by the Commission on July
The Commission appointed Paul A. Hahn on July 16, 1999 to hear the advisory grievance
Hearing in this matter was held on September 27, 1999 at Western Wisconsin
Technical College in
LaCrosse, Wisconsin. The hearing was not transcribed. The parties were given the
declined to file post hearing briefs. The record was closed on September 27, 1999.
Did the College violate the collective bargaining agreement
between the parties when it
reassigned Grievant's duties to other College employes following Grievant's return from a
leave of absence in March of 1999 and was such reassignment discipline and demotion of the
Grievant? If so, what is the appropriate remedy?
Did the College have the right to reassign job duties to Grievant
upon his return from a medical
leave of absence in January of 1999? If not, what is the appropriate remedy?
The statements of the issue by both parties reasonably frame the issues for me to
Therefore, I do not set out a separate statement of the issue by the Arbitrator.
ARTICLE 2. RECOGNITION
2.01 The District recognizes the Union
as the exclusive bargaining representative in the
collective bargaining unit consisting of all regular full-time and regular part-time custodial
of Western Wisconsin Technical College, excluding clerical, office, confidential, supervisory
managerial employees, as their representative; and that pursuant to the provisions of
of the Municipal Employment Relations Act, said organization is the exclusive collective
representative of all such employees for the purposes of collective bargaining with the above
District, or its lawfully authorized representatives on questions of wages, hours and
. . .
ARTICLE 4. MANAGEMENT
4.01 Management retains all rights or
possession, care, control and management that it has
by law and retains the right to exercise these functions under the terms of the Collective
Agreement except to the extent such functions and rights are restricted by the terms of this
. . .
ARTICLE 5. GRIEVANCE
AND ARBITRATION PROCEDURE
5.01 Definition. A grievance shall be
discussed orally by the grieved employee with the
employee's immediate supervisor within five (5) working days of the date upon which the
knew, or should have known of the cause of the grievance. At the election of the grievant, a
representative shall be present at the discussion.
. . .
5.03 Arbitration, Final
and Binding. The decision of the arbitrator shall be final and
binding on all parties. The arbitrator shall have no authority to add to, detract from or in
modify, alter or amend the provisions of this Agreement. (By agreement of the parties, the
in this matter shall not be final and binding on all parties, but shall be advisory only).
. . .
ARTICLE 10. DISCIPLINE
The District agrees no non-probationary employee shall be progressively
disciplined, suspended or discharged without just cause.
. . .
MAINTENANCE OF STANDARDS
11.01 The District
agrees that all conditions of employment relative to wages, hours and
working conditions shall be maintained and that the conditions of employment shall be
wherever specific provisions for modification are made elsewhere in this Agreement.
NON-BARGAINING UNIT WORK AND WORK ASSIGNMENT
12.01 The District shall not direct or
require its employees who are not members of the
bargaining unit to perform work which is recognized as the work of the employees in said
to do so would deprive bargaining unit employees of their regularly assigned work hours.
ARTICLE 13. EQUIPMENT,
ACCIDENTS, REPORTS, WORK RULES AND
. . .
District shall have the right and responsibility to create work rules. The Union
shall have the right to grieve/arbitrate any work rules it feels is (sic) unreasonable.
. . .
EXAMINATIONS AND EDUCATION
. . .
time to time employees may need additional training in order to perform their
duties on behalf of the District. Costs for such training shall be paid for by the District.
as lodging, food, registration fees, lost wages, educational materials and mileage shall be
. . .
ARTICLE 16. SAFETY,
HEALTH AND SECURITY
16.01 The District shall make reasonable
provisions for the safety, health and security of the
employee(s) while such employee(s) are in the course of their employment.
. . .
ARTICLE 18. SENIORITY
RIGHTS, LAYOFF AND RECALL
18.01 Definition of Seniority.
(a) Seniority. Seniority shall be
determined by length of service as an employee of the
District and shall commence with the employee's most
recent date of hire into the bargaining unit.
Part-time employee(s) shall accrue seniority
commencing with the date of full-time employment in the bargaining unit.
STATEMENT OF THE CASE
This grievance involves Teamsters Union Local No. 695, representing the employes
in Article 2, Recognition. (Jt. 1) The Union alleges a contractual violation in that while the
was on a medical leave of absence from January 22, 1999 through March 8, 1999, the
reassigned duties that the Grievant, as lead custodian under the collective bargaining
performed. (Jt. 2)
The Grievant has been employed by the College for 29 years and 10 months as of the
in this matter. Grievant was originally hired as a custodian and assigned to clean the Kumm
Grievant performed the normal custodial cleaning duties upon employment with the College.
Grievant's first immediate supervisor was Kellicet. In 1985 Kellicet left the employment of
College. At that time Grievant assumed Kellicet's supervisory duties and was not assigned to
particular cleaning duties although he may have been doing some cleaning work in the
Building. Grievant may also have been performing some leadman duties prior to assuming
duties in 1985, although without apparent official designation. In 1986 Jack J. Jansky was
the College to assume the duties of Physical Plant Manager. Grievant reported directly to
commenced to again perform regular custodial duties along with some leadman duties. In
1986 the College posted for a custodial foreman day shift; Grievant was one of three
interviewed and was awarded the job. (Er. 1)
In 1993 there were major changes at the College providing for construction and
that led to an increased time commitment by Jansky who was to oversee certain aspects of
construction. Jansky recommended a Position Authorization and Description for the Grievant
May 12, 1993 which outlined increased supervisory responsibilities for Grievant due to
involvement with construction. (Jt. 2) On May 14, 1993, Jansky in a memorandum to
Resources Manager Salls also requested a job reclassification for the Grievant which involved
transferring supervision of the custodial department to a custodial foreman. (Er. 2) Salls via
Fider, VP for Finance, referred this reclassification request by Jansky to College President
June 1, 1993. (Er. 4) Said reclassification was approved
by Rasch and Grievant assumed those
duties. (Er. 3)
In a representation election conducted by the Wisconsin Employment Relations
resulting in recognition of the Union, the Union challenged the vote of Grievant as being a
since at that time he was not assigned to clean a building and had supervisor responsibilities.
Following the representation election and during negotiations for
the first collective bargaining agreement (Jt. 1) the parties resolved Grievant's situation
a position of custodial lead referenced in Appendix A Wages of the collective
In March of 1998 Jansky retired and, in the interim
before new plant manager Albrecht was
employed on October 1, 1998, Director of Finance Tom Fider took over the direction of the
plant operation of the College; Grievant reported directly to Fider. In a meeting of the
on March 11, 1998, Fider in essence set forth the roles for various individuals to carry out
custodial function, particularly until such time as a new physical plant manager was hired by
College. Grievant was designated to remain the lead coordinator of the custodial staff. (U.
September of 1998 an additional WWTC custodial work assignment document was produced
forth the basic cleaning and backup priorities for assigned building areas. This document
also set out
the lead worker (Grievant) responsibilities which were essentially to see that the District's
function took place in a quality manner. (U. 2)
On October 1, 1998, new physical plant manager Albrecht started his employment.
after spending some time in this capacity, commenced to reorganize the operations of the
department. Albrecht met with Grievant in December of 1998 and advised him of certain
by other custodial staff regarding the Grievant's leadership qualities, in particular the fact
Grievant was not actually performing any custodial work which Grievant declined to do.
left on a medical leave of absence on or about January 22, 1999. Albrecht
commenced to take over
the purchasing of supplies for the physical plant (custodial operation), took over the handling
moves on and off campus and at off-campus locations and arranged for work orders for the
staff to be computerized and posted in the custodial break room for self-assignment by the
most of whom are senior custodians in length of service.
Grievant returned from his medical leave on March 8, 1999. During the course of
medical leave, his duties as a lead person or of a supervisory nature were removed from the
custodial position held by the Grievant and reassigned to employes in and out of the
bargaining unit, including duties assumed by Albrecht. Grievant was not informed about this
reorganization or the fact that he would lose these previously assigned duties before he left
medical leave of absence. Upon his return, Grievant was assigned to the College mail room
temporarily fill a vacancy. The employes in the mail room are represented by a different
there is a history at the College that custodial employes have helped out in the mail room.
room job has been posted under the collective bargaining agreement for the mail room
Shortly after returning from his medical leave of absence and not being satisfied with
response from the College regarding the reassignment of his custodial lead position duties
and his assignment to the mail room, Grievant filed a complaint (grievance) on March
alleging a violation of his contractual rights. (Jt. 2) The College (by Human Resources
Salls) responded to and denied the grievance on April 15, 1999. (U. 3)
The parties processed the grievance through the contractual grievance procedure and
unable to settle the grievance. No issue was raised as to the arbitrability of the grievance.
agreed to ask an arbitrator to hear the matter and provide a written advisory
opinion which would
not be binding on the parties and would allow them to go to binding arbitration if either party
to do so. Hearing in this matter was held by the Arbitrator on September 27, 1999 in the
LaCrosse, Wisconsin at the administrative offices of Western Wisconsin Technical College.
hearing adjourned at 3:00 p.m.
POSITIONS OF THE
The position of the Union is best set forth in its statement of the issue of this
grievance arbitration, through its presentation on the record and through its submission of
remedies as part of its closing argument. Essentially the Union takes the position that while
recognizes management's right to assign duties under the contractual management rights
regards the removal of custodial supervisory duties from the custodial lead position held by
Grievant and assigning them to non-bargaining unit personnel as violating the collective
The Union further alleges that the removal of these duties and the assigning of
the mail room has the practical effect of disciplining the Grievant and demoting him from the
lead position. The Union takes the position that this discipline was without just cause and
the Grievant was never counseled as to the reorganization of the department, and he was not
counseled as to any deficiency in his job performance. Further, Grievant has never been
in his 30 years of employment with the College. The Union argues that said actions by the
directed toward Grievant have an effect on other employes in the bargaining unit when
reassigns duties to employes outside the collective bargaining unit.
Lastly, the Union requests as its first remedy that Grievant be made whole by being
to the custodial lead position with appropriate duties; and in the alternative the Union submits
the Grievant be assigned duties as a custodian with lead duties attached to a working
The College takes the narrow position that this is purely a work assignment issue and
has the right to assign employes their work duties. The College argues that the record shows
during Grievant's medical leave of absence it was identified that there were flaws in the
supervisory and management process. The College submits that the record substantiates that
custodial work was performed better while Grievant was absent, but the College, when
returned, assigned him the mail room duties without reducing his custodial lead pay based on
length of service with the College. The College points out that when the mail room job,
currently is posted, is filled the College will find other appropriate duties for the Grievant
maintain his custodial lead pay rate. Lastly, the College argues that it has not violated the
bargaining agreement with its actions toward the Grievant and requests that the grievance be
The main issue in this case is whether the College had the right to unilaterally
leadman duties from Grievant's job assignment and to assign him to non-custodial duties
return from a medical leave of absence in March of 1999. I do not believe the record
finding that Grievant's current assignment in the College mail room and the removal of said
duties constitutes discipline. There further has not been any formal demotion of the Grievant
alleged by the Union. The record reveals that Grievant is still paid the contractual rate of
lead pursuant to Appendix A of the labor agreement. Nor did the record establish that the
lead job has been eliminated or that that title no longer belongs to Grievant. However, one
legitimately argue that constructively the classification has been eliminated and Grievant no
acts in that capacity. But, I do not find that the actions taken by the College in this regard
to punish or discipline Grievant. I find that the College's reassignment of duties was for
business reasons. The issue, as stated, is whether the College had the right of reassignment
terms of the parties' labor agreement. 1/
1/ I have reviewed the articles of the parties'
labor agreement as cited by the grievance. (Jt. 2)
of Standards I do not find applicable as there was no change to the wages, hours or
working conditions of bargaining unit employes.
Non-Bargaining Unit Work and Work Assignment This provision goes to the
issue in this case and is
addressed by my decision. It should be noted that no unit employe or Grievant were
deprived based on the evidence
presented to me of their regularly assigned work hours.
Rules There is no issue as to work rules based on the record.
Training and 16.01 Safety Nothing was presented at the hearing
to cause me to consider these provisions
of the parties' labor agreement. While the statement by Grievant attached to the grievance
(Jt. 2) might be
considered to have discussed training and health, this was not pursued at hearing or in either
the Union's or
College's arguments or statements of the issue.
Grievant's work history, spanning thirty years with the College, is not crystal clear
record. It is without dispute that Grievant started his employment as a custodian performing
custodian duties. At some point prior to 1986, he was also performing lead duties, although
record is vague as to the extent of those duties. In March of 1986, a custodial foreman
posted; this was prior to the Union representing the custodial employes. (Er. 1) This was
approximately the time that Grievant's supervisor Kellicut retired. While Grievant does not
remember this posting or signing for it, Jack Jansky who replaced Kellicut and was assigned
position of Physical Plant Manager in October of 1985, testified that he interviewed three
for the foreman position. Grievant was selected by Jansky for the position. Clearly the
the resulting position were for a permanent custodial foreman position with the duties stated
The confusion in this case I believe occurs from the events that took place in 1993.
year the College, pursuant to a Master Plan, constructed and remodeled a number of
College considered hiring a construction manager but dropped that idea as being too
then fell to Jansky, the Plant Manager, to assume many of those responsibilities. As Jansky
could not adequately take care of the custodial end of his duties and take care of the
responsibilities, he proposed a reclassification for Grievant. (Jt. 2) By this reclassification,
took on duties beyond his custodial foreman position, where he was still doing cleaning, and
him a supervisor who was not assigned cleaning duties. The issue is whether those duties
temporary or permanent. I believe the record, established by documentary evidence, is clear
reclassification and the supervisory duties attached to it were temporary. On May 12, 1993,
wrote the reclassification for custodial supervisor. (Jt. 2) This was recommended by Jansky
become effective on July 1, 1993. On May 14, 1993, Jansky made this recommendation to
Human Resources Manager. (Er. 2) On June 1, 1993, Fider, the Vice President of Finance,
on this request for reclassification to the College President, Lee Rasch definitively referring
to it as
a "temporary" reclassification. (Er. 4) On June 2, 1993, Rasch sent Salls a Memorandum
a temporary upgrade in classification for the Grievant. (Er. 3) As with labor agreements,
memorandums and job description for a custodial supervisor must be considered together and
context of the situation at the time. I therefore find that the increased duties assigned to the
were for a temporary period because of Jansky's need for supervisory assistance over the
I believe it is an open question whether Grievant was ever told this was a temporary
as Jansky states and as Grievant denies. I believe both of these individuals testified
creditably. It is
apparent that Grievant had some of these supervisory duties still at the time the Union
custodial bargaining unit leading to the challenge of Grievant's right to vote in the
election. Subsequently, Grievant was in the unit as a custodial lead in a classification created
parties bargaining for their first contract, the one before me now.
In March of 1998, Jansky retired and Fider took over the responsibilities of Plant
while the College searched for a replacement for Jansky. That replacement, Albrecht, was
October of 1998. During that interim period, it is apparent that some of Grievant's lead
being assigned to others. Grievant testified that a fellow bargaining unit member, Gary
doing some of his duties. Julie Dahl had been and continued to be involved with purchasing;
a non-unit employe. Jean Powers, also a non-unit employe, was performing some of the
duties related to
work orders. Fider testified that the organization of the custodial department was changing.
was less need for a supervisor and the responsibilities associated with the Custodial Foreman
of 1986 (Er. 1) were no longer needed. In a meeting with the custodial staff on
March 11, 1998,
Fider was trying to sort out what his relationship was going to be with the custodians, what
would do to assist him and what responsibilities Grievant would assume. (U. 1) Grievant
assigned to oversee the custodial staff as he had been doing before the labor agreement and
representation by the Union.
When Albrecht arrived to take over the Physical Plant Manager position in October
he informed the custodians that he would be organizing the custodial department. He asked
if he would return to cleaning as some of the custodians were upset with Grievant's
he thought it would help if Grievant returned to cleaning as well as perform his lead duties;
refused. Albrecht found that purchasing by the custodial department was not following
guidelines. Albrecht believed that purchasing, directing moves on and off campus and
work orders were not proper responsibilities for a non-management employe, in this case the
Grievant was on a medical leave of absence in January and February of 1999. When
returned in March, he was assigned to the mail room. Albrecht, while Grievant was gone,
removed all of Grievant's lead duties. Albrecht took over the purchasing, directed the moves
determined when the custodians would be assigned to various maintenance employes to assist
Most of the work order function had been automated between requesters and Albrecht's
rather than have the work assignments handed out to the custodial crew, as Grievant had
were merely posted on a bulletin board at a location where the crew started their day.
testified that this worked well as the crew was senior and did not need someone telling them
their assignments would be; Thorsen also testified that he was to a degree involved in
supplying cleaning equipment to the department.
When the Grievant came back from his medical leave in early March, 1999, Albrecht
that he assigned Grievant to the mail room to fill a temporary vacancy that was being posted
another bargaining unit (custodians had a past practice of helping in the mail room despite it
in the jurisdiction of another union). Albrecht never asked Grievant if he was willing to
on Grievant's refusal in December of 1998 before he went on leave.
Based on the facts and the record, which I have described above, it is my opinion
College did have the contractual right to remove these duties from the Grievant and assign
other employes both within and without the bargaining unit. I believe that arbitral opinion
this decision under the facts of this case. 2/ I decline the Union's offer to declare that what I
here establishes generally the respective rights of the College and the Union as it relates to
assignments. Arbitrators rarely engage in declaratory rulings and I will not do so in this
case. In this
case, a strong argument can be made that the duties taken away from the Grievant were those
temporarily received as a result of the Jansky situation in 1993. Some of these duties, such
orders and purchasing, have never been the sole responsibility of the Grievant. It is also
clear, as in
the cited cases, this is a position that has evolved into a different job than was in place
Union organized. The very agreement to make the job a custodial lead necessitated a
certain supervisory duties in order for the Grievant to be in the bargaining unit.
2/ The ability of management to create and
eliminate jobs and assign duties has been recognized as a
traditional right of management, particularly in any case where the collective bargaining
agreement has a reserved
eliminated a fourth assistant power plant operator job classification which was set forth in the
labor agreement. Some of the job's previous duties were to be assigned to other bargaining
unit employes. The
reason for the employer's action resulted from automating certain aspects of the job and the
employer acted in good
faith and for business reasons.
denied the union's grievance that the employer had unilaterally eliminated a contractual job
classification. The Arbitrator found that management retains all of its traditional rights
absent agreements to the
contrary. One of those traditional rights includes elimination of a job classification. The
fact that the classification
is listed in the agreement does not constitute a guarantee or "freeze" on existing
classifications for the life of the
agreement. The Arbitrator noted that the employer in this case restructured jobs, reassigned
residual duties and
avoided laying off a single employe, noting that contracts are to be given a "reasonable
construction, so as to avoid
harsh, illogical, and/or absurd results."
Finch, Pruyn &
Company, 111 LA 1, 5-7 (Babiskin, 1998)
This case lends
support to the actions of the College in my case, and, I note, nothing in the record indicates
that the College is eliminating the custodial lead position. I note also that in Article 18
Seniority, Section 18.04,
the Grievant would have bumping rights in the event of job elimination.
In another case, the
arbitrator was confronted with a fact situation where a maintenance clerk spent 18 to 20
hours per week entering new and completed maintenance repair orders manually
in a log book. The employer
automated this system eliminating a substantial portion of the clerk's duties. This data entry
was now performed
by non-unit supervisors and took them about 15 to 19 minutes per day. The
union grieved the use of supervisors
doing this work. The arbitrator denied the grievance finding that the union does not
necessarily retain work
changed by technological advances.
White New Idea
Farm Equipment Company, 101 LA 461, 463 (High, 1993).
In my case, the
College has automated the work order system, which has always to a degree involved
non-unit clerical staff and eliminated the need for a foreman or lead custodian to assign jobs
to the custodial staff. This
is the very type of flexibility arbitrators hold that employers must have in order to upgrade
In still another case
which is useful to my analysis of the issue between WWTC and Local No. 695, the
company eliminated a lab technician classification and the employes were demoted to lower
paying jobs but no
employe was laid off. The union argued that work was not eliminated but just re-assigned to
other employes. The
company responded that quality control was now done on the line and this system had
evolved over time and the
union was well aware of the changes. The arbitrator, in ruling for the company, held that it
was not for the
arbitrator to judge the employer's decision only if it was consistent with the labor agreement.
The arbitrator ruled
that the change was business related and justified re-assignment of tasks. The Technician
position was at least
significantly altered and the company did not have to eliminate all tasks to justify elimination
of the job.
Company, 108 LA 1207, 1210-1211, (Hart, 1997).
language in these three cases, while not exactly the same, is similar to the language in the
agreement I interpret here. The fact situations to some degree are more extreme than what
the College did to the
custodial lead position and Grievant in this case.
The discussion of the cases I have cited
makes abundantly clear that in the absence of
contract language restricting its right the employer, the College, must have flexibility to run
operation. I believe this is particularly the case when it comes to the assignment of
duties. Management must be able to have control over its supervisory functions if it is to
efficiently and provide the appropriate level of services to its customers as circumstances
for the delivery of those services. 3/
3/ I have found in this case that the College
did not violate the collective bargaining agreement by the
assignment of Grievant to the mail room, which appears to be temporary, and by
re-assigning some lead duties to
other employes within and without the bargaining unit. I am concerned that the Grievant
may not have totally been
treated in good faith by the lack of communication with him regarding his duties and job
assignment and job
performance. This is true even though the College stated on the record that Grievant would
continue to receive
custodial lead pay and would be assigned to other duties when the mail room job is
permanently filled. I encourage
the College to be aware of and not repeat this lack of communication with
I believe it would have been better management if Albrecht had
asked Grievant on his
return from medical leave if he were willing to be assigned custodial duties, but I cannot
fault him for relying on Grievant's refusal in December of 1998 to perform such duties. If
Grievant is willing to perform custodial duties, he has seniority rights under the Agreement
would come into play when the mailroom position is filled.
Based on the foregoing and the record in this matter I make the
The College did not discipline, demote or violate the collective
bargaining agreement when
it removed lead duties from the Grievant and when it assigned him to a temporary position in
mailroom. The grievance is denied.
Dated at Madison, Wisconsin this 20th day of October, 1999.
Paul A. Hahn, Arbitrator