BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NECEDAH AREA SUPPORT STAFF
NECEDAH AREA SCHOOL DISTRICT
Ms. Deborah K. Byers, Executive Director, Coulee Region
United Educators, NEA-WEAC, appearing on behalf of the Union.
Godfrey & Kahn, S.C., Attorneys at Law, by Attorney Edward J.
Williams, appearing on behalf of the District.
The Necedah Area Support Personnel (herein the Union) and the Necedah Area
District (herein the District) are parties to a collective bargaining agreement, dated
1999, covering the period from July 1, 1998, through June 30, 2000, and providing for
arbitration of certain disputes between the parties. On November 1, 1999, the Union filed a
with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
a result of a reduction of hours imposed on certain members of the food service staff and
the appointment of a member of the WERC staff to arbitrate the issue. The undersigned was
designated to hear the dispute and a hearing was conducted on December 21, 1999. The
were not transcribed. Briefs were filed on January 24, 2000, and the Association filed a
on February 3. The District elected not to file a reply brief and so notified the arbitrator on
The parties were unable to stipulate as to the issue, therefore, the Arbitrator frames
Did the District violate the collective bargaining agreement
when it reduced the hours of work
of Sherry Saunders, Dorothy Cross, Stacy Hargrove and Tammy Hurt?
If so, what is the appropriate remedy?
An employee's seniority is measured from
initial date of hire by the district in any bargaining unit
position. No distinction shall be made between full and part time service to the district in
seniority. Seniority and the employment relationship shall be broken and terminated if the
Fails to report to work after having
been recalled from layoff within 2 weeks.
Employment is not considered interrupted
by approved leaves or school recess. The School
Administration shall provide the President of the Association with an updated seniority list by
September 1 of each year. The Association will inform the School Administration of any
disagreements with the updated seniority list by October 1 of each year.
A. The Board shall determine the number
of employees to be laid off or reduced and select the
individual employee(s) who will be affected. The following will be used to determine who is
1. Normal attrition from employee
retirement or resignations will be relied upon to reduce staff
to the extent that it is administratively feasible.
2. Temporary personnel will be laid off
before full-time and part-time personnel where
3. The remaining employee(s) to be laid off
or reduced will be determined by the seniority of all
employees within the classification, commencing with the employee with the least seniority.
is defined in Article VI. An
employee that is designated for layoff or reduction may bump
within their classification where
his/her seniority is greater than the least senior person in that classification, and where the
is qualified for the position. If the date of hire of two employees is equal, then the Board
the employee to be laid off or reduced in hours. Classifications are defined as follows:
4. Notice of lay off will be given at least
30 days prior to the date of lay off.
ARTICLE III MANAGEMENT
The Board on its own behalf and on behalf
of the district, hereby retains and reserves unto itself
all rights of possession, care, control and management vested in it by law, and retains the
exercise these functions during the term of the collective bargaining agreement except to the
extent such functions and rights are restricted by the terms of this Agreement. These rights
but are not limited by enumeration to, the following rights:
. . .
B. To establish reasonable work loads, work rules and schedules
C. To hire, promote, transfer,
schedule and assign employees in positions with the school system;
D. To lay off employees from their duties
for sound business reasons;
E. To maintain efficiency of school system
. . .
I. To determine methods, means and personnel by which
school system operations are to be
. . .
ARTICLE V. HOURS OF WORK AND
A. Hours of work
. . .
Food service workers will be required to work full-time or
part-time each day students are in
attendance at school and may be assigned additional hours on non-school days at the
the District Administrator. Overtime hours must have prior approval of the immediate
the District Administrator.
The Necedah Area School District is integrated into one building complex, which
the grade school, middle school and high school. All students utilize a common food service
comprised of two lunchroom areas connected to a centrally located kitchen. Students from
different schools eat lunch in staggered shifts from approximately 10:30 a.m. to 12:45 p.m.
food service also prepares meals which are transported to an alternative high school operated
district at another location.
For the past several years, operation of the district's food service has been contracted
Taher, Inc., a private corporation. Taher's contract with the district comes up for renewal in
Since July 1998, the district's food service has been managed by Chelsea Gage, a Taher
Gage is responsible for managing the food service budget, training the staff, preparing
handling food purchasing and overseeing the preparation and serving of meals. The district,
employs the six foodservice workers, five full-time and one part-time, who staff the food
order of greatest seniority, the employes are Joanne Ziebell, Sherry Saunders, Dorothy
Hargrove, Tammy Hurt and Patricia Cook. Ziebell, Saunders, Cross, Hargrove and Hurt
employes. Cook is a part-time employe. Thus, although the food service workers are
the district and are members of the bargaining unit, they are managed by Gage, who is not a
For the 1999-2000 school year, Taher determined that the District needed to reduce
service by two labor hours per day in order to make the service more economically viable.
recommended that the District could accomplish this by reducing Saunders, Cross, Hargrove
Hurt, hereafter the Grievants, by one-half hour per day each. On July 20, 1999, the
of Education voted to adopt the recommendation and on July 21, Pauline Roll, the District
Superintendent, wrote to the food service staff notifying them of the changes. Cook did not
On September 8, 1999, after implementation of the reductions, the Union filed a
with the District on behalf of the Grievants. The grievance was denied at each level and the
proceeded to arbitration.
POSITIONS OF THE PARTIES
Article VIII of the collective bargaining agreement contains specific language
reductions and layoffs, which establishes a process and progression for reducing staff and/or
Article VIII, Section A, Subsection 1, states that staff reductions are to be accomplished first
normal attrition, where administratively feasible. Article VIII, Section A, Subsection 2,
temporary personnel are to be laid off before regular full and part-time employes, again
administratively feasible. Article VIII, Section A, Subsection 3, states that layoffs of regular
employes will occur within classifications, according to seniority. Significantly, Subsection 3
not mention administrative feasibility, thus, making this language inviolable and not qualified
contingencies or administrative discretion.
Within the food service classification there were no retirements or terminations, nor
there any temporary employes, making Subsections 1 and 2 inapplicable to the present case.
Subsection 3 controls and requires that the two hours be taken from the least senior employe
the classification. The collective bargaining agreement does not permit the District to reduce
hours of four people, nor does it permit taking the hours from more senior employes instead
There is no merit to the District's contention that it has the latitude under the
Rights clause to circumvent the layoff procedure for sound business reasons. The District
discretion to decide to lay off employes, but if it does so, it is bound to follow the language
VIII. The District failed to do this when it reduced the hours of the Grievants instead of the
senior food service employe.
Past practice supports the Association's position. On three occasions the District
reduced the hours of food service staff. In 1990, the District reduced the hours of Fran
When the reduction was grieved, Ms. Wilson's hours were restored by reassigning her as a
aide, as well as a cook. In 1996, the District attempted to reduce the most senior cooks,
and Mary Peterson, by one hour per day. The reduction was grieved and the hours were
In 1999, the District attempted to reduce Joan Ziebell and Sherry Saunders by one hour per
Again, the reduction was grieved and the hours restored. In each case, the District violated
provision of the contract and relented only when confronted by the Association.
In contract interpretation cases, arbitrators will generally prefer applicable specific
over general language. Here, the District relies on the Management Rights clause, which
gives the employer the right to lay off employes for sound business reasons. The clause also
however, that it is subject to any restrictions contained elsewhere in the agreement. The
does not contest this general grant of authority, nor the District's right to exercise it here,
evidence suggests that the food service operations have
suffered since the reductions. There is specific language in Article VIII, however,
which dictates how
such layoffs are to be accomplished. In this case, the language mandates that the least senior
in the classification be the one reduced.
The District argues that it needs the services of all the staff over the lunch hour and
therefore, it cannot reduce the hours of the least senior employe, who only works from 10:00
until 1:00 p.m. A review of the food service operation, however, belies this view. The
employe is stationed in the dish room over the lunch period. Students begin eating in
numbers at 11:10 a.m., therefore, she would not be needed to wash dishes until at least
duties in the dish room are completed by 12:40, thus, she is only needed for one hour and
minutes per day and twenty of those minutes, along with any ancillary duties, could easily be
distributed among the other cooks. It might be more convenient to have this employe
hours per day, but it is not necessary. The District has impermissibly violated the collective
bargaining agreement and the four Grievants should have their hours restored and be made
Under the collective bargaining agreement, management retains the right to schedule
determine the hours of work of the food service staff. The agreement does not establish
work, nor does it guarantee a certain number of hours to the employes. Rather, it provides
service workers will be required to work while students are in attendance and at certain other
but leaves it to management, via the Management Rights clause, to determine the actual
hours needed and schedule accordingly. This is consistent with a long chain of arbitral
(citations omitted), which hold that management's right to establish the times and hours of
should be construed broadly to promote efficiency, especially where the contract does not
fixed number of guaranteed hours of work.
There is no contractual restriction on the scheduling of work. To the contrary, the
reserves to management the right to establish reasonable work loads, schedules of work and
schedule and assign employes and positions within the school system. Thus, the food service
schedule is revisited every year to determine the optimum allocation of hours and resources.
present case, food service management determined that six employes were required from
to 1:00 p.m. Nevertheless, it was determined economically necessary to eliminate two hours
from the payroll. Because the least senior employe already works only three hours per day,
not possible to reduce her hours and still have the necessary complement of workers during
hours. The only viable alternative, therefore, was to reduce the four next most senior
half an hour per day each.
The Union argument that the reduction violated the Layoff clause has no merit. The
clause is concerned with layoffs and reductions in force, but says nothing about reductions of
Many arbitrators do not consider reductions in hours to constitute reductions in force or
in fact, the hours reduction here had the opposite effect of a
reduction in force, because it resulted in all employes continuing to keep their jobs.
Were the Layoff
clause to be interpreted literally and in a vacuum, it would be impossible for the District to
the food services it is obliged to do. Therefore, the unique circumstances here must be
the standpoint of reasonableness and equity.
The Union also contends that there is an established past practice of reducing the
hours of the
least senior employe. This argument fails on two counts. First, past practice only applies in
where the contract language is ambiguous or unclear. Such is not the case here, therefore,
contract language should be applied according to its plain meaning. Second, assuming some
or ambiguity was found to exist, the conditions necessary to support a binding past practice
been established. Such a practice would have to be 1) unequivocal; 2) clearly enunciated and
upon; and 3) readily ascertainable over a reasonable period of time as a fixed and established
accepted by both parties. Celanese Corp. of America, 24 LA 168, 172 (Justin, 1954). The
has failed to establish these criteria.
The Union presented oral evidence, with no supporting documentation, of three
the past several years where the District made a determination to reduce hours and the least
employe was reduced first. It did not establish, however, that this practice was unequivocal,
enunciated and acted upon, or readily ascertainable over a fixed period of time as an
practice of the parties. Further, the evidence reflects that these other instances are factually
distinguishable and a past practice is only effective where the underlying circumstances
This case involves a unique set of circumstances whereby the District needed to
hours, but also needed all staff members to work during the peak period of 10:00 a.m. to
The Union contends that the Layoff clause requires that the two hour reduction be imposed
least senior employe, thereby reducing her from three hours a day to one. Were the District
that, it would not be possible to have all six employes on duty during the three-hour peak
Thus, to interpret the contract as the Union suggests would lead to the absurd result of
inadequate coverage during the busiest period of the day, as well as having the least senior
working only one hour per day. Such an outcome would be clearly disfavored by arbitral
(Citations omitted.) For all the reasons cited, therefore, the grievance should be dismissed.
The Association does not dispute management's right to schedule work, or to change
schedules, but it may not unilaterally reduce an employe's hours of work without following
procedure set forth in Article VIII. The specific language of Article VIII, Paragraph A,
states, "The remaining employee(s) to be laid off or reduced will be determined
by seniority" The
District equates the word "reduced" with a reduction in force,
but that is not what the language says. The word "reduced" refers to a cutback in
hours, not to a
cutback in staff. Thus, when the District reduced the four Grievants by one-half hour per
it was required to comply with Article VIII in doing so.
The District's argument that it had "sound business reasons" for its actions is also
UniServ Director Gerry Roethel testified as to ways in which the work could be redistributed
the food service staff in order to avoid reducing the Grievants without sacrificing quality or
Further, although the Food Service Manager, Chelsea Gage, testified on direct examination
employes were needed between 10:00 a.m. and 1:00 p.m., on cross-examination she
was unable to
explain why this is so, or why other employes couldn't change their schedules and duties.
the lunch period is actually much shorter than alleged by the District, making it unnecessary
a full staff for three hours per day.
The District disputes the existence of a past practice, but the fact remains that on
occasions it sought to reduce the hours of senior employes, on each occasion the Association
the action and in each instance the District restored the hours to the employes. The elements
of a past
practice exist with respect to these incidents and they are identical to the case at hand.
The District also essentially admits a violation of the contract in its third argument by
that it was impossible to comply with the Layoff procedure under the circumstances. In the
place, this undercuts the District's first two arguments wherein it claims there was no
violation of the
contract. Either the contract was violated or it wasn't, the District can't have it both ways.
Furthermore, the basis of the argument appears to be that the District may violate the
whenever, in the District's opinion, it becomes necessary. If the District wishes to change or
eliminate contract terms, it must do so at the bargaining table, not through unilateral action.
Finally, the District's contention that adopting the Association's position would lead
and nonsensical results has no merit. The Association has shown how the work schedule
restructured to reduce the least senior employe by two hours per day and still complete the
That the District does not choose to adopt these alternatives does not make them absurd or
nonsensical. The District's position, on the other hand, violates the spirit and letter of the
bargaining agreement and is patently unfair to the employes in the bargaining unit. For these
the Association maintains the grievance should be upheld.
The District did not file a reply brief.
The record indicates that in 1999, the District, acting on a recommendation from its
Service manager, Chelsea Gage, eliminated two labor hours per day from the Food Service
reducing the Grievants each by one-half hour per day. Gage, in turn, was acting on
her employer, Taher, Inc., with which the District contracts to operate its Food Service, and
concluded that the reductions were economically necessary. At the hearing, it was suggested
Union that Taher's recommendation was based on concerns over the renewal of its contract
1999-2000 school year, but this was not established, nor, in my opinion, is it germane to the
because the decision to eliminate the hours and reduce the individual employes was ultimately
by the District, not Taher.
In justifying its decision, the District relies on the language of the Management
which permits the employer to, among other things, establish reasonable work loads and
of work, as well as schedule and assign employes in positions with the school system. The
interprets this to mean that it may, in its discretion and without prior Union approval,
number of hours of work necessary and the manner in which those hours are to be
Union does not dispute this and, in fact, concedes that management has the right to set, and
alter, the work schedule. What the Union does not concede, and the crux of the issue here,
management's authority to unilaterally reduce the work hours of individual employes without
reference to seniority or the provisions of the Layoff clause.
The District argues that the Layoff clause is inapplicable, because there was only a
of hours, not a layoff or reduction in force. I am not persuaded that this is a correct
of the provision. Article VIII, Section A, states: "The Board shall determine the number of
employees to be laid off or reduced and select the individual employee(s) who will be
the provision goes on to set out the process by which layoffs and reductions will be
Subsection 3 states: "The remaining employee(s) to be laid off or reduced will be determined
seniority of all employees within the classification, commencing with the employee with the
seniority." The District equates the word "reduced" with reduction in force, yet it also
equate reduction in force with layoff. Under that reading, the word "reduced" becomes
and adds no additional meaning to the clause. This would violate the basic precept that
should be construed, if possible, so as to give effect to all words and phrases, and that an
interpretation which tends to nullify or render meaningless any provision is generally to be
Even more to the point, the next to last sentence of Subsection 3 states: "If the date of hire
employees is equal, then the Board may select the employee to be laid off or reduced
(Emphasis added.) Clearly, therefore, the word "reduced," as it is used in Article VIII,
refers to a reduction in hours, sometimes referred to as a partial layoff, and not a reduction
workforce. As such, it has direct application to the situation here.
The District argues, however, that there is no set guarantee of hours to the Food
members under the collective bargaining agreement and, therefore, it has the flexibility under
Management Rights clause to restructure the employes schedules as it sees fit. Furthermore,
numerous arbitration awards in support of its position. I find the cases cited to be
Drake Bakeries, Inc., 38 LA 751 (Wolf, 1962), an employer was upheld in unilaterally
a Sunday work schedule. In New Jersey Brewers' Association, 33 LA 320 (Hill, 1958), an
employer was upheld in unilaterally eliminating Sunday work. In Kimberly-Clark Corp., 42
982 (Sembower, 1964), the employer was permitted to unilaterally switch the schedule from
to day work. In St. Regis Paper Co., 51 LA 1102 (Solomon, 1968), the employer
to unilaterally alter the summer work schedule. In each of these cases, however, there was
contrary provision in the agreement limiting management's discretion. Here, the language of
VIII, Section A, specifically limits management's right to reduce the hours of individual
Likewise, those cases cited in support of the argument that contracts that refer to a
or "normal" workday or week do not provide a guarantee of hours are not on point. The
is not whether the District may reduce the number of hours worked in a day or week for
business reasons. The Union has conceded as much. Rather, the issue is whether the
unilaterally determine which employes the hours will be taken from without reference to the
clause. I find that it cannot. The rights reserved in the Management Rights clause are
limited to the extent that they are restricted by other provisions in the collective bargaining
agreement. Article VIII, Section A, Subsection 3, requires that reductions in the hours of
be done according to seniority. Therefore, the District's ability to shorten the workday is
upon its doing so in accord with the Layoff provision.
The record reflects that in the past the District has also accepted this interpretation.
evidence of three prior grievances filed on behalf of employes who had their hours reduced
their relatively high seniority. In each case, the District settled the grievances by restoring
I agree with the District's position that this, in and of itself, doesn't constitute a binding past
Nevertheless, where a grievance has been settled between two parties, that settlement may
precedential effect with respect to any future grievances between the parties over the same
as evidence of the parties' intent regarding the meaning of the provision in question, it
weight. Bendix-Westinghouse Automotive Air Brake Co., 23 LA 706 (Mathews, 1954).
past settlements here indicate that the parties have understood reduction of employes' hours
governed by seniority.
The District argues, in the alternative, that it is not possible to comply with the
provision in this case because all six employes are needed between the hours of 10:00 a.m.
p.m. and the least senior employe only works three hours per day. To reduce her by two
day, therefore, would leave the Food Service short-handed during its peak period. Because
other employes work longer hours, it is easier to eliminate one-half hour each
from the Grievants. This argument is likewise, unpersuasive. The District may not
agreement simply because a provision becomes inconvenient or burdensome. Absent
circumstances, which do not appear in the record before me, the District must seek any
modifications at the bargaining table.
The District also contends that adoption of the Union's position would lead to an
nonsensical result, in that the least senior employe would only work one hour per day and
Service would have inadequate staff during the busiest part of the work day. For a variety of
I disagree. In the first place, this was a calculated economic decision by the District in the
a contract, not a circumstance beyond the District's control. Furthermore, the cost concern
initially raised by the District, but rather by the independent contractor, Taher. The decision
recommend the cutback was apparently based on an accounting calculation of the optimal
labor hours to meals served. In fact, Taher's representative, Chelsea Gage, testified that in
the Food Service had more employe hours and did not operate at a loss. Therefore, if the
for a manpower shortage is great enough, the District may always elect to restore the hours
workday and absorb the additional cost.
Secondly, it appears from the record that the District may have some additional
options that would reduce the need to have the least senior employe on duty for a full three
day. For instance, the five senior employes currently all take their breaks together at 10:00
These could be spaced out and scheduled for times outside the peak 10:001:00
interval. At the same
time, according to the testimony, some of the least senior employe's duties could be
among the other five.
Finally, both parties appear to be arguing from the proposition that the Layoff clause,
applicable, requires that the full reduction be imposed on the least senior employe. I do not
Article VIII, Section A, states: "The Board shall determine the number of
employees to be laid off
or reduced" (Emphasis added.) Likewise, Subsection 3 states: "The remaining
employee(s) to be
laid off or reduced will be determined by the seniority of all employees" (Emphasis added.)
plainly implies that the District may spread the reduction out among several employes as long
does so according to seniority. Thus, the District's error was not in reducing four employes
by one-half hour each, but in not doing so in accordance with seniority. The violation
occurred in reducing
the most senior of the Grievants, Sherry Saunders, instead of the least senior employe, Patti
By reducing the four least senior employes by one half hour each, the District would have
compliance with the contract and would only have been without all six employes for one half
per day. The adjustments mentioned above would have made the impact of the loss
Based upon the foregoing and the record as a whole, the undersigned enters the
By reducing the hours of the Grievant, Sherry Saunders, the District violated
Section A, of the collective bargaining agreement. Accordingly, the District is ordered to
one-half hour per day to Saunders' work schedule and to pay her back pay equivalent to
hour per day from the date of the reduction, along with any additional benefits, or
benefits, to which she may be entitled as a result of the increase. As to the remaining three
Dorothy Cross, Stacy Hargrove and Tammy Hurt, there was no violation of the contract and
grievance is, therefore, denied.
Dated at Eau Claire, Wisconsin this 11th day of May, 2000.
John R. Emery, Arbitrator