BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute
WISCONSIN COUNCIL 40, LOCAL 1752-E,
Mr. David A. Campshure, Staff Representative,
Council 40, AFSCME, AFL-CIO, 1566 Lynwood Lane, Green Bay,
appearing on behalf of the Union.
Godfrey & Kahn, S.C., by Attorney Robert W.
Main Street, Suite 600, P.O. Box 13067, Green Bay, Wisconsin
54307-3067, appearing on
behalf of the District.
Wisconsin Council of County and Municipal Employees, Local
hereafter the Union, and Beecher-Dunbar-Pembine School District,
hereafter the District, are
to a collective bargaining agreement that provides for the final
and binding arbitration of
arising thereunder. The Union requested, and the District
concurred, in the appointment of a
Commission staff arbitrator to resolve a pending grievance. The
undersigned was so
an arbitration hearing was held in Pembine, Wisconsin, on
September 16, 1999. The
transcribed and the record was closed on November 16, 1999,
upon receipt of
The Union frames the issue as follows:
Did the District violate the parties'
agreement when it altered the
Grievant's work schedule on October 8, 1998?
If so, what is the appropriate remedy?
The District frames the issue as
Did the District violate the
bargaining agreement by way of the work duties
assigned to the Grievant?
If so, what is the appropriate
The undersigned adopts the Union's
statement of the issue.
1. Seniority shall be defined as an
employee's length of continuous service with the School
District from his/her last date of hire.
2. Seniority shall be used to
rights of employees. The Employer shall provide a
seniority list to the UNION on or about
September 15th of each year.
. . .
ARTICLE VII JOB
1. A vacancy shall be defined as a
opening not previously existing in the Table of
Organization, or a job opening created by the termination,
promotion, or transfer of existing
personnel. The EMPLOYER shall notify the
UNION of its intent to fill or not fill a
writing, within ten (10) working days of the occurrence of any
EMPLOYER will post
on all UNION bulletin boards notice of the
vacancy for a period of
five (5) working days before
filling such vacancy. The notice shall contain the starting rate
for the position, job
hours of work. The EMPLOYER shall consider all
employees who make written
application for the vacancy in line with their seniority.
2. Any employee filling a job vacancy
under the procedure outlined in Section 1 above, will be
required to fulfill a thirty (30) day probationary period during
which she/he may be returned
former job if the EMPLOYER
determines that she/he is unable to satisfactorily
perform the job.
Within the first thirty (30) days
the employee may return to her/his former job at the employee's
3. Where no employee with the proper
qualifications applies within the time required, the
EMPLOYER may fill such opening by recruitment.
EMPLOYER'S conclusions with regard to employee's
shall be subject to
the grievance procedure.
5. The EMPLOYER
may make a temporary assignment to any vacant position until
provision is completed.
6. A steward may sign another
name to any posting if the employee is off due to
illness or on vacation.
. . .
ARTICLE VIII WAGE SCHEDULE,
POLICY AND SNOW DAYS
1. Attached to, marked Exhibit "A", and made a
part of this
Agreement are the mutually agreed
upon index and job classifications. During the term of this
Agreement each employee shall
the rate as indicated on the index for his/her classification.
. . .
The District has the right to
work, provided that no present employee(s) shall be laid
off or suffer a reduction of hours as a result of subcontracting
or by the use of volunteers
. . .
ARTICLE XIX MANAGERIAL
1. During the course of negotiations,
preceded the execution of this Agreement, the parties
discussed matters pertaining to custodial and maintenance
operations, supervision of the work
and managerial prerogatives. Pursuant to these negotiations the
parties agreed that all
of management to run its operations and to direct
are retained by the School
District. This would include scheduling work hours in a manner
which is deemed most
to the School District.
2. Nothing contained in this Article
construed as divesting an employee of any right
granted elsewhere in this Agreement or the Wisconsin Statutes.
3. The Employer agrees that it will
the rights enumerated above in a fair and reasonable
manner, and further agrees that the rights contained herein shall
not be used for the purpose
undermining the UNION or discriminating against
. . .
Nancy French, hereafter the Grievant, has been employed by
the District since 1979.
July 6, 1998, District Administrator Dan Nylund issued the
following letter to the
Your tentative schedule for the coming year will
be as follows:
7:30 8:15 Office work
8:15 11:15 Special Education aide
11:15 12:15 Office work
12:15 12:45 Lunch
12:45 1:30 Special Education aide
1:30 3:30 Office work
Your first day of work will be Monday, August 23,
will work in the office during the
I hope you are enjoying the summer.
you in August.
On August 18, 1998, Principal Leonard Trudeau issued the
following letter to
Your schedule for the coming year will be as
7:30 8:15 Office work
8:20 10:40 Special Education aide
10:45 11:15 Lunch room scanning
11:20 - 12:20 Recess duty
12:25 12:55 Lunch
1:00 3:00 Office work
Your first day of work will be Monday, August 24,
will work in the office during that
I hope you enjoyed the summer. See
On October 8, 1998, the Grievant was informed that her
new work schedule
would be as
7:30 8:15 Office work
8:15 10:30 Special Education Aide
10:30 11:30 Lunch room
11:30 12:30 Playground
12:30 1:00 Lunch
1:00 3:00 Special Education Aide
On or about October 12, 1998, the Union filed a written
grievance that states,
inter alia, as
. . .
On October 8, 1998, the Grievant was informed that
schedule was being changed. She
was told she would no longer be working in the office in the
afternoons and that her office
would be performed by the Green Thumb worker.
. . .
The District violated Article XXII
using the Grievant to replace bargaining
unit employes on lay off and then utilizing the Green Thumb
worker to replace the Grievant.
other contract provisions that may apply, including, but not
limited to, Article VI
. . .
Reinstate the Grievant's original work schedule.
Cease and desist
using Green Thumb worker
to replace bargaining unit employees and performing work
historically performed by
On November 17, 1998, District Administrator Nylund issued
the following letter to
On October 21, 1998, in a letter to Mr. Dave
outlined why you should know that
your supervisor is the Building Principal. In the same letter, I
stated that if you started from
by reinitiating the grievance at Step 1, the time limits would be
waived. (See enclosed
By simply adding Mr. Leonard
name after my name on the form and resubmitting a
copy of the original grievance does not, in my opinion,
constitute starting from scratch.
Your statement of the circumstances
is false. You were not told that the Green Thumb
worker would be performing your duties.
Your contention of what management
wrong also contains a falsehood because the Green
Thumb worker is not being used to replace work previously done by
a union employee.
Since management has not violated any
of the Agreement and, according to your job
description, other duties can be assigned by the Principal, your
grievance is denied.
Thereafter, the grievance was submitted to
POSITIONS OF THE
The Grievant was hired into the District as a secretary and
never posted into any
position during her approximately 20 years of employment. After
the Grievant's work
duties were changed on October 8, 1998, the Grievant, for
all practical purposes, held
of Teacher Aide.
The District assigned Teacher Aide duties to the Grievant
under the catchall phrase of
"Perform other duties as requested by the Principal" and "Other
tasks as assigned by the
Administrator or Secretary." Superintendent Trudeau's testimony
that this statement in the
description gives the District the right to assign any employe
holding that position any duties
the employe is capable of performing grossly overestimates the
District's management rights.
The District has failed to acknowledge that there is a
difference between its right to
employes duties and its right to assign employes jobs. To accept
the District's position
that there is no contract language that restricts the
District's ability to assign jobs to
employes, would be to render meaningless portions of the parties'
job posting and seniority
as well as the listing of separate positions in Appendix A.
The Union acknowledges that, in the past, it grieved, but
did not process to
changes to the Grievant's work schedule or duties. However, in
none of the previous
the changes come close to transforming the position from
secretary to another job.
For the 1998-1999 school year, the District eliminated two
Teacher Aide positions.
Arbitrator Greco has ruled that the District violated the
subcontracting provision of the
when it laid off the two bargaining unit Teacher Aides for the
1998-1999 school year while
subcontracted aides to perform bargaining unit work the laid off
Teacher Aides were capable
performing. The instant grievance presents similar facts.
By essentially involuntarily transferring the Grievant from
her secretary position to a
Aide position, the District eliminated one Teacher Aide and one
Secretary. The Green
effectively replaced the Grievant, who in turn replaced one of
the laid off Teacher Aides.
conduct, the District has violated the contractual subcontracting
Upon elimination of the Grievant's secretary position, she
would have the contractual
to bump into a job held by a less senior employe. By
transforming her Secretary position
of a Teacher Aide, the District has denied her that right.
The Union requests that the Arbitrator sustain the
grievance. The Union further
the District be ordered to reinstate the Grievant's original work
schedule and to cease and
using subcontracted and other non-unit employes to perform any
and all work performed by
Grievant. In the event the grievance is sustained, the Union
also requests the Arbitrator to
jurisdiction for a period of time to ensure compliance with the
The management rights clause in the contract grants the
District broad authority to
operation and direct its employes. This authority includes
scheduling work hours in a
is most advantageous to the School District.
There is no specific language in the contract restricting
the District's authority to
to employes in the bargaining unit. Arbitral authority supports
the District's position that, in
absence of an expressed limitation in the parties' collective
bargaining agreement, an
the discretion to change individual duties and job content of
Reinforcing this principle is the fact that two previous
grievances brought on behalf
Grievant resulted in no restriction of management's right
discussed above. One grievance
abandoned and the other resulted only in the understanding that
future job assignments would
explained verbally rather than by memorandum.
The Grievant's current duties and responsibilities are not
outside the scope of her job.
Grievant's current duties and responsibilities are consistent
with historical work assignments
the Grievant's position has included both teacher aide and
The mere listing of classifications, without detailed job
content description, does not
employer's discretion to change job content. An employer, absent
any express restrictions,
abolish job classifications, establish new ones or combine jobs.
The District's right to
and responsibilities are specifically acknowledged in the job
description, which states
duties as requested by the Principal" or "Other tasks as assigned
by the District
The District had legitimate business reasons for changing
the allocation of the
duties on October 8, 1998. The change did not reduce the
Grievant's compensation. The
was not laid-off, nor was she reduced in hours. There has been
no subcontracting or
that would be pertinent to the grievance.
Both the facts and issue presented in this case may be
distinguished from those in the
Award of Arbitrator Greco. In the present case, the Grievant was
not laid off, her hours of
were not reduced, nor were her work hours changed. The
subcontracting clause is not
the facts of this case. The grievance must be denied in all
Article VIII, Section 1, and Appendix A, read together,
establish that the parties have
recognized that Secretary and Teacher Aide are two distinct
classifications. While it is true
the two classifications are paid the same rate, the existence of
against an assumption that the duties and responsibilities of the
two classifications are
Article VII - Job Posting provides employes with posting
rights to vacancies. The
provision requires the posting notice to include a job
All of the Grievant's job descriptions have reflected that
the Grievant's classification
"Secretary". Given the evidence that job descriptions identify a
specific classification and the
contractual requirement that the posting notice include a job
description, it is reasonable to
that, when an employe posts into a position, the employe posts
into a specific classification.
To permit the District to unilaterally change an employe
from "Secretary" to
would deprive the affected employe of the employe's contractual
right to occupy the
into which the employe posted. Additionally, it would deprive
other bargaining unit
employes of their
contractual right to post into a "Teacher Aide" position.
As the District argues, the Grievant's job description
states "Perform other duties as
by the Principal". However, to conclude that this language
permits the District to
an employe from a Secretary to a Teacher Aide would be to
abrogate rights granted in
Therefore, such a conclusion must be rejected.
Article XIX - Managerial Rights provides the District with
the right to "run its
to direct its employees." Article XIX expressly recognizes that
these management rights may
construed to divest an employe of any right granted elsewhere in
To construe Article XIX as providing the District with the
right to unilaterally change
Secretary to a Teacher Aide would divest the employe of rights
granted under Article VII -
Posting. Thus, such a construction must be rejected.
Neither party introduced the Teacher Aide job description.
Thus, the undersigned is
to determine the extent to which the Grievant's job duties and
Teacher Aide job duties
The Union argues that it is the reduction in the amount of
"office work" that has
the Grievant from a Secretary to Teacher Aide. As demonstrated
by the change in the
descriptions and the testimony elicited at hearing, the
Grievant's position has evolved over
In the 1997-98 school year, the Grievant no
performed office work. Rather,
the Grievant performed a significant amount of non-office work.
The Grievant's 1997-98
was as follows:
7:30 8:30 Office Work
8:35 10:10 Special Education Aide for Ms.
10:15 10:25 Break
10:30 11:45 Cafeteria Supervision &
checking of student ID's
10:45 11:55 Break
12:00 12:30 Cafeteria Supervision &
checking of student ID's
12:35 1:20 Office Work
1:25 1:40 Elementary detention (when needed)
1:45 1:55 Break
2:00 3:00 Office Work
On August 6, 1997, the Union filed a grievance alleging that
the District had violated
collective bargaining agreement by changing the Grievant's job
duties to a substantial degree
the job duties of a less senior clerical employe remained
unchanged. As a remedy, the
requested that non-clerical duties assigned to the Grievant be
assigned to the less senior
employe. The undersigned notes that the grievance does not
object to the assignment of
Education Aide and other non-clerical duties to a "Secretary",
but rather, objects to the fact
duties were not assigned to a less senior clerical employe. This
grievance was denied by the
and not pursued to arbitration.
The fact that the August 6, 1997 grievance was not pursued
supports the inference
Union has recognized that it is appropriate to assign the
Grievant non-clerical duties, such as
Education Aide, cafeteria supervision, and elementary detention.
This inference is further
by the fact that, when the Grievant was given her first
assignment for the 1998-99 school
year on July
6, 1998, no grievance was filed over the assignment of "Special
Education Aide" work from
11:15 and from 12:45 1:30 and, when the Grievant was given
her second assignment
for the 1998-99 school year on August 18, 1998, no grievance was
filed over the assignment
of the additional
duties of lunch room scanning and recess duty.
In summary, the record does not demonstrate that the
District unilaterally changed a
into a Teacher Aide. Rather, the evidence of prior conduct
persuades the undersigned that
District and the Union have mutually recognized that the
"Secretary" position occupied by
Grievant may be assigned to perform non-clerical duties of the
type assigned to the Grievant
October 8, 1998. Under the circumstances of this case, the
October 8, 1998 alteration of the
Grievant's work schedule did not abrogate the posting rights
contained in Article VII. Nor
render meaningless the classifications set forth in Appendix A.
Article VI, Section 2, states that "Seniority shall be used
to determine the rights of
employees." Neither the language of this provision, nor any
other evidence, establishes that
Grievant has a seniority right to accept or reject job
assignments that have been recognized to
assignments of her Secretary position. Notwithstanding the
Union's argument to the
contrary, it is
not evident that the October 8, 1998 alteration of the Grievant's
work schedule has abrogated
of the Grievant's contractual seniority rights.
Although the Union argues that the Grievant would have
bumping rights to another
position if her position were to be eliminated, the Union has not
cited any contract language
addressing lay-off procedures in general, or bumping rights in
particular. The only contract
relied upon by the Union that references lay-off is the
subcontracting language. Specifically,
language permits the District to subcontract work provided that
no present employe(s) is laid
reduced in hours as a result of the subcontracting or by use of
volunteers and/or teachers.
As the Union argues, two Teacher Aides were on lay-off at
the time that the Grievant
assigned Special Education Aide work. As the parties recognized
at hearing, the
undersigned does not have jurisdiction to determine whether or
not these lay-offs
violated the parties'
collective bargaining agreement because that issue was placed
before Arbitrator Amedeo
It is not appropriate for the undersigned to decide whether
or not any of the work
by the Grievant was rightfully the work of the two laid-off
employes. Nor is it appropriate
undersigned to determine whether or not the lay-off of the two
Teacher Aides impacted upon
District's right to use the Green Thumb Worker. Rather, these
issues were for Arbitrator
hear and decide.
Contrary to the argument of the Union, the record does not
demonstrate that the
Thumb Worker replaced the Grievant in the office. Rather, the
record demonstrates that the
Thumb worker performed duties historically performed by the Green
Thumb Worker. This
however, is not germane to this grievance because the contractual
limitation on the use of
non-bargaining unit employes relied upon by the Union is found in
the subcontracting clause.
District argues, for the subcontracting language to be implicated
in this grievance, the
have been laid off or reduced in hours. Since neither event has
occurred, the subcontracting
is not applicable.
In conclusion, the District's conduct in altering the
Grievant's work schedule on
1998 has not violated the collective bargaining agreement as
alleged by the Union.
grievance is denied and dismissed.
Based upon the above and foregoing, and the record as a
whole, the undersigned
1. The District did not violate the parties' collective
bargaining agreement when it
Grievant's work schedule on October 8, 1998.
2. The grievance is denied and dismissed.
Dated at Madison, Wisconsin, this 8th day of
Coleen A. Burns, Arbitrator