BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MINERAL POINT SCHOOL DISTRICT
MINERAL POINT EDUCATIONAL SUPPORT
Ms. Priscilla Ruth MacDougall, Staff Counsel, Wisconsin
Education Association Council, 33 Nob
Hill Drive, P.O. Box 8003, Madison, Wisconsin 53708-8003, appearing on behalf of the
Kramer, Brownlee, & Infield, LLC, by Ms. Eileen A.
Brownlee,1038 Lincoln Avenue, P.O. Box
87, Fennimore, Wisconsin 53809, appearing on behalf of the School District.
The Mineral Point Educational Support Personnel, hereinafter referred to as the
the Mineral Point School District, hereinafter referred to as the District, are parties to a
bargaining agreement which provides for final and binding arbitration of grievances.
Pursuant to a
Request for Arbitration the Wisconsin Employment Relations Commission appointed Edmond
Bielarczyk, Jr., to arbitrate a dispute over the subcontracting of bus services. Hearing on the
was held in Mineral Point, Wisconsin on April 27, 1999. A stenographic transcript of the
was prepared and received by the undersigned by May 24, 1999. Written arguments
and reply briefs
were received by the undersigned by June 29, 1999. Full consideration has been given
evidence, testimony and arguments presented in rendering this Award.
"Did the District violate the parties' collective bargaining
agreement when it entered into a
contract for transportation services with the Verona Bus Company?"
"If so, what is the appropriate remedy?"
. . .
Management retains all rights of possession, care, control, and
management that it has by law,
and retains the right to exercise these functions under the terms of the collective bargaining
except to the precise extent such functions and rights are explicitly, clearly, and
restricted by the express terms of this Agreement. The rights include, but are not limited by
enumeration to, the following rights:
1. To direct all operations of the school system;
. . .
11. To determine the methods, means and personnel
by which school system operations are to
. . .
13. To contract for goods and those services which
are not currently provided by present staff
members on a regular basis;
. . .
. . .
E. The arbitrator shall not have the authority to
change, alter or modify any of the terms or
provisions of this agreement. Findings of the arbitrator shall be final and binding upon both
. . .
The District and the Union have been parties to a series of collective bargaining
Initially bus drivers were not included in the bargaining unit. In 1993, after an election
the Wisconsin Employment Relations Commission, bus drivers were accreted to the
The 1989-1991 collective bargaining agreement contained the following management rights
"5. The Board, at its discretion, may contract for
goods and services as long as the work
historically performed by bargaining unit employees or normally within the scope of work
performed by bargaining unit employees, and the hours of bargaining unit employees is not
In 1991 the current contract language was voluntarily agreed to. In 1995 the District
unsuccessfully through Interest Arbitration a change in Article III, paragraph 13 that would
to subcontract at will. In 1997 the District again unsuccessfully sought a change in Article
paragraph 13 through Interest Arbitration that would allow it to subcontract at will only bus
Prior to the start of the 1998-99 school year the District entered into a contract with
Bus Service to operate the District's transportation services. On September 10, 1998 and
December 9, 1998 grievances were filed concerning the District's subcontracting of
routes. The matters were consolidated and processed to arbitration in accord with the
grievance procedure. The first matter occurred when Jerry Cenite, who had resigned as a
in 1996, approached Todd Schmitz for reemployment. Schmitz informed Cenite there were
openings but when an employe retired Schmitz hired Cenite as an employe of the Verona Bus
Company to drive the retired employe's route. The second matter occurred when the Union
aware that Schmitz , who had been the District's transportation manager and who drove a
was now an employe of the Verona Bus Company and still driving a bus route. Also during
the District eliminated the position of transportation secretary occupied by Patty Palzkill and
transferred her to another secretarial position. No grievance was filed over this matter. The
also demonstrates no employe was laid off or has lost work opportunities because of the
The Union asserts the District violated the collective bargaining agreement's
subcontracting when it hired employes of the Verona Bus Company. The Union
the language was changed in 1991 but asserts this was done at the District's urging because it
to do certain repair work and not run afoul of the language. In support
of this position the Union points to the testimony of South West Education Association
Leroy Roberts (Tr. 15-27). The Union also points out the District has sought to change
paragraph 13, in two separate Interest Arbitration cases and lost both times. The Union also
out that the District has not in the past used the subcontracting language to subcontract out
bargaining unit work.
The Union also argues the District's position that it can subcontract out any
position (work) when a position becomes vacant is preposterous, unsupported by any
history or past practice, violates Sec. 111.70 Wis. Stats. as bad faith bargaining of a
subject of bargaining by potentially reducing the bargaining unit to zero such that the entirety
District's support staff could be employes of another employer. The Union points out the
subcontracting is a mandatory subject of bargaining and twice the District has taken this issue
interest arbitration. The Union concludes the District's subcontracting of bargaining unit
was performed exclusively by bargaining unit members is bad faith bargaining.
The Union also asserts this is a first step in the elimination of the bargaining unit
passage of time. The Union asserts that for such a drastic result to be allowed to take place
parties' clear intent to allow the same is necessary. The Union concludes the District did not
demonstrate any such intent.
The Union would have the undersigned sustain the grievance, to admonish the
bad faith actions, and to direct the District to hire Cenite and make him whole.
The District contends it did not violate the collective bargaining agreement when it
drivers employed by Verona Bus Company to drive school buses. The District points out it
agree with the Union's interpretation concerning the instant matters if it had occurred prior to
However, the District asserts the present language clearly allows it to subcontract work so
no present staff member is deprived of work.
The District also points out that under the pre-1991 language work historically
bargaining unit members would remain bargaining unit work. The District asserts that the
change in 1991 eliminated the protection concerning historically performed work. The
that the focus thus changed from both protection of work and protection of workers to only
Here the District also points out the District's reserved management rights was strengthened
addition of the clause except for: "rights explicitly, clearly, and unequivocally restricted by
express terms" of this agreement. The District points out it did in 1993 eliminate a
position and had a manager assume these duties and no grievance was filed.
The District does acknowledge it did attempt to seek changes in Article III, paragraph
points out that the Union, in arguing its case, submitted as an exhibit a claim that similar
other contracts supported its position. These provisions provided that the employer could
subcontract out for goods and services provided bargaining unit members were not laid off or
in hours. The District points out this occurred again when the 1996-1998 agreement went to
The District acknowledges that the Verona Bus Company did hire an employe to
District's retired employe. However, the District asserts the Union's interpretation is
with the plain language of the agreement. The District points out no present staff member
deprived of work. The District argues the Union's contention would render meaningless the
"present" in the collective bargaining agreement. The District asserts that had the parties
to protect the work rather than the present bargaining unit members it would have been
state that contracting was allowed except for "current work performed by staff members."
District points out arbitrators avoid rendering contract language superfluous and that the
does not have the authority to change, alter or modify the terms of the agreement.
The District also points out the interpretation of the agreement sought by the Union is
inconsistent with past practice. The District asserts the Union did not protest when a
position was eliminated and the work transferred to a non-bargaining unit position, remained
when the bus drivers were accreted and Schmitz drove a regular school bus route, and when
transportation secretary's duties were eliminated and she was assigned to other duties.
The District also asserts that any ambiguity of the language must be resolved it the
favor because of the reserved rights provision of the Management Rights Article. Further,
there were two reasonable interpretations of the language the past practice favors the
The District also points out that Schmitz had never been a member of the bargaining
District argues the only "present staff member" he replaced was himself and therefore the
argument is irrelevant.
The District would have the undersigned deny the grievance.
The District also argues that should the Undersigned conclude the
District's actions violated the collective bargaining agreement the
remedy should be limited to making Cenite whole for lost wages
being the difference between his Verona Bus Company rate of pay and
the pay rate he would of received under the collective bargaining
Union's Reply Brief
The Union argues the District's assertion it can subcontract the position and work of
bargaining unit member when the member quits, retires or dies is contrary to the parties
history, past practice and the two interest arbitration awards. The Union argues that without
presenting any evidence or testimony the District asserted that the protection previously
to bargaining unit work was eliminated by the provision at issue in this matter. However,
argues that as the instant language is ambiguous and the District initially proposed it, it is the
District's burden to prove its interpretation of the language. The Union also asserts the
interpretation would be contrary to Wisconsin public policy concerning good faith bargaining
anti-fragmentation of bargaining units and contrary to two interest arbitration awards. The
also points out it has always been the practice of the District to replace bargaining unit
bargaining unit employes, not employes of another employer. The Union also asserts that
acknowledged at the arbitration hearing that the contract language was ambiguous when it did
object to the Union's evidence of the bargaining history respecting the working and meaning
language in dispute. Here the Union points out it is not asking the undersigned to add to or
the collective bargaining agreement but to clarify and interpret contract language. The Union
asserts the District's interpretation negates a primary purpose of collective bargaining: job
for all employes doing work recognized as bargaining unit work. The Union asserts that
twice in interest arbitration its bid to obtain subcontracting rights the District is trying to
already had the right to subcontract any vacated bargaining unit position.
District's Reply Brief
The District does not dispute that subcontracting is a mandatory subject of bargaining
points out the parties have repeatedly discussed and bargained this subject. The District also
acknowledged that it attempted on two occasions in interest arbitration to gain the right to lay
employes and subcontract their work, as opposed to contraction out their work through
The District asserts it is unreasonable that because it was unsuccessful in extending its rights
contract out for goods and services it should be forever precluded from using the rights that
A careful review of Article III, paragraph 13, demonstrates that the District is
contracting out work that is currently provided by present staff members. The Undersigned
ambiguity in this language. Current work being performed by the present staff members can
subcontracted. Thus it is the Union's burden to demonstrate the current work of a present
member was subcontracted. Further, contrary to the Union's assertion, the District claim
protection previously applicable to bargaining unit work (work historically
performed by bargaining unit employes) was eliminated by the
provision at issue in this matter is correct. The 1989 language
clearly protected work as well as bargaining unit members. The
current language limits the subcontracting prohibition to work
performed currently by present staff members. It order to be
successful, it was necessary for the Union to demonstrate not only
current work was subcontracted, but also, it was work of a present
staff member. The Union assertions about past practice, bargaining
history and arbitral precedent are irrelevant if the language is
The undersigned would note here that it was the Union that
argued in interest arbitration that the instant language is
comparable to " provided employes are not laid off or have their
hours reduced." The undersigned finds no basis for a claim that
the District has committed bad faith bargaining because it acted
under an interpretation the Union itself argued in a different
forum. Nor can it be deemed bad faith because the District
exercised a contractual right. In effect, the Union argument the
District can not subcontract because it has always replaced a
departing employe would render paragraph 13, meaningless, a result
both sides have acknowledged the undersigned does not have the
ability to do.
The record demonstrates that when an employe retired the
District subcontracted the work of the vacated position. No
employe was laid off. No employe had their hours reduced. Thus no
current work which was being performed by a present staff member
was contracted out. Absent a showing that the current work of a
present staff member was contracted out, the actions of the
District did not violate the collective bargaining agreement. The
same holds true for the work performed by Schmitz. At no time was
he ever a member of the bargaining unit. Therefore the District
could not have contracted out the current work of present staff
member when it contracted out the bus route he had been driving.
The Union has also argued the net result of the District's
actions could be the elimination of the entire bargaining unit.
The Union has also asserted it would be absurd for it to enter into
such an intent. However, it had argued in both interest
arbitration cases that the current language is similar to its
comparables. Clearly the comparables have entered into such
agreements and thus the undersigned must conclude that the Union
was aware of the intent of Article III, paragraph 13, prior to the
District's actions in the instant matter.
Therefore, based upon the above and foregoing, and the
evidence, testimony and arguments presented the undersigned
concludes the District did not violate the parties' collective
bargaining agreement when it entered into a contract for
transportation services with the Verona Bus Company. The grievance
is therefore denied.
The District did not violate the parties' collective bargaining agreement when it
into a contract for transportation services with the Verona Bus Company.
Dated at Madison, Wisconsin, this 15th day of November, 1999.
Edmond J. Bielarczyk, Jr., Arbitrator