BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CLARA BARTON BRIGADE,
LOCAL 1205, AFSCME, AFL-CIO
BADGER-HAWKEYE BLOOD SERVICE
REGION, AMERICAN RED CROSS
Mr. Laurence S. Rodenstein, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO, on behalf of the Union.
Clark Hill, P.L.C., by Mr. Fred W. Batten, on behalf of the
The above-entitled parties, herein "Union" and "Employer", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Green Bay, Wisconsin, on January 13, 2000. The hearing was not transcribed and the
agreed I should retain my jurisdiction if the grievance is sustained. The parties subsequently
briefs that were received by March 13, 2000.
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the Employer violate Section 11.13 of the contract when it
used Collection Specialist II's
rather than Collection Specialist I's who are in the bargaining unit to
perform certain work and,
if so, what is the appropriate remedy?
The Employer operates a blood bank at its Green Bay, Wisconsin, facility where it
Collection Specialist I's ("C S I's") who are in the bargaining unit, and Collection Specialist
S II's") who are not. The parties agreed to their initial collective bargaining agreement in
(Joint Exhibit 1).
Union President Terry Allen, a CS I, testified that CS I's perform three main tasks at
Employer's main facility and its mobile units: they conduct assessments of prospective
draw blood from donors, and they oversee a donor's recovery. She said that before the
negotiated the parties' initial contract in 1997, a CS I was usually assigned to a mobile unit
CS II's were then mainly used on "special occasions" to assign work, and that they then
On cross-examination, she stated that before 1997, CSI's "rarely" worked with CS IIs
that after reviewing the records, she discovered that CS II's over a two-year period only
alongside CS I's on seven occasions. She also said that she had previously served as a
at which time she received step-up pay; that she had previously attended Charge Nurse
she was told she no longer could do so; that in response, she and some other CS I's no
as Charge Nurses; that other CS I's have continued to serve as Charge Nurses because they
be part of management; and that, "Yes", the Union has discouraged employes from serving
Doris Holbrook, a CS I who also is a Union steward, testified that some CS II's were
assigned bargaining unit work before it was offered to bargaining unit employes and that, as
certain bargaining unit employes never received any hours. She said that she filed the
grievance on August 16, 1999 (Joint Exhibit 2A); that as a result, Supervisor Mary Ann
with the grievance by stating that more hours should be given to CS I's and that some CS I's
received more hours; and that the prior Union steward had quit, which is why this grievance
dropped at that time. She also stated that CS II's are performing bargaining unit work on a
On cross-examination, she said that she is unaware if the Employer is trying to hire
additional five CS I's; that management agreed in the summer of 1999 that the practice of
bargaining unit work to CS II's rather than to part-time CS I's who had their hours reduced
would cease; and that it, in fact, did stop about 30 days later.
Julie Olson, a CS I, testified that she has been assigned to work more than 20 hours a
even though she has asked management to not assign her more than 20 hours
Associate Director Carl Lindbeck testified that the Employer in the summer of 1999
with the Union to stop assigning bargaining unit work to part-time CS II's if part-time CS I's
not getting any hours and that the Employer ever since then has followed this new policy.
said that a tight staff always has been a problem, which is why the Employer in the past
II's to do bargaining unit work to maintain a "sufficient number of staff". He further stated
is now necessary to assign more CS II's to perform bargaining unit work because some CS
to cross the line between management and labor and to serve as Charge Nurses; that CS I's
entitled to attend supervisory meetings because management issues are discussed there; that
are not excluded from other meetings; that the Employer in 1998 expanded its mobile
thereby increasing the use of CS II's; and that a revised computer blood collection system
an "enormous stress" on staff.
On cross-examination, he said the Employer no longer uses CS I's as Charge Nurses
of their "extreme reluctance" to serve in that role; that the Employer never offered to have
meetings for CS I's regarding operational issues; that the Employer in the summer of 1999
offered to make whole those bargaining unit employes who had their hours reduced; that
now is scheduled up to "their capacity"; that he cannot give a "direct answer" as to whether
now work more hours; that there now are three more CS II's than when the contract
was agreed to
in 1997; and that there are no longer five vacant CS I positions.
Team Supervisor Sue Killinger explained why it has been necessary to use CS II's on
occasions and said that only a few CS I's can do an atologist draw which involves drawing
a donor's own use. She added that CS I's have refused to sign up for some training
(Employer Exhibit 3) and that, as a result, it has been necessary to assign work to
CS II's. She also
said that before the contract was signed in 1997, CS IIs were assigned "as needed".
On cross-examination, she explained why certain CS I's did not receive more hours.
POSITIONS OF THE PARTIES
The Union asserts that the Employer violated Section 11.13 of the contract because
"evidence supports the notion of a past practice which delimits bargaining unit work" and
the Employer has deviated from that past practice by regularly assigning bargaining unit
supervisors. As a remedy, the Union asks that all affected full-time and part-time employes
whole from the time of the first grievance.
The Employer contends that two of the grievances are not properly before me; that it
always assigned" CS II's to perform bargaining unit work "when work was to be done and
were available"; that the "assignment of CS II's to perform bargaining unit work when all
CS I's have
been assigned is permissible"; that it has "not abused" its right to do so here; and that it has
forced to use CS II's because CS I's refuse to serve as Charge Nurses.
Turning first to what grievances are properly before me, Section 9.1 of the contract,
"Definition of Grievance", states:
A grievance is defined as any dispute involving the
or interpretation of the terms
and provisions of this Agreement, except that insurance or retirement program claims that
to a claims review procedure and do not involve an interpretation of this Agreement shall not
subject to the Grievance Procedure established in this Agreement. A grievance shall be
the Employer within ten (10) working days of its occurrence or when the employee knew or
have known thereof, or it shall be barred.
Here, the Employer at the time of the original August 16, 1999, grievance (Joint
was assigning bargaining unit work to CS II's even though some part-time CS I's had
reduced to zero. The Union's grievance which expressly stated that the date of the
infraction was "Ongoing" - therefore was a continuing one that could be filed during any
the Employer was following its challenged practice. See How Arbitration
Works, Elkouri and
Elkouri, pp. 281-282 (BNA, 5th Ed. 1997).
However, that grievance was not first discussed with the immediate supervisor as
under Section 9.2 of the contract which states in pertinent part: "The aggrieved employee
discuss the grievance with the employee's supervisor at which time an effort shall be made to
Associate Director Lindbeck therefore was correct when he replied on August 16,
the earlier filed August 16, 1999, grievance had to be first presented to the immediate
(Joint Exhibit 2B). Union Steward Holbrook then discussed the matter with Supervisor
denied the grievance on September 8, 1999. Other written grievances were filed on
1999, and October 18, 1999, which dealt with assigning a CS I to charge duties and the
a CS II position. The latter October 18, 1999, grievance (Joint Exhibit 2(d)) stated:
"This is also an
extension of [grievance] 99.12",
i.e., the initial August 16, 1999 grievance. The latter grievance, however, was not
appealed after Holbrook spoke to Potter.
Nevertheless, since the issue raised in the Union's original grievance still lingers and
must be resolved at some point, I find that the general issue of supervisors allegedly
bargaining unit work should be addressed based upon the fully developed record before me.
Turning now to the merits of the grievance, Section 11.13 states:
Section 11.13 Work by Non-Bargaining Unit
The employer may assign qualified Supervisors (Team
Supervisors, and Collection Specialist
II's) who will not be members of the bargaining unit covered by this Agreement to any
site who may perform work normally performed by members of the bargaining unit. The
unit work performed by supervisors shall be in accordance with past practice. The Employer
also utilize Nursing Assistants (student nurses) in accordance with past practice.
In order to determine what work can be performed by non-bargaining unit personnel
language, it is necessary to determine whether CS II's at the time the contract was signed
performed the kind of bargaining unit work that is the subject of the grievance. This is not
question to resolve because CS II's have, to one degree or another, always performed
bargaining unit work. See American National Red Cross (Badger-Hawkeye Region) (Set-Up
Grievance), Case 30, No. 56727, A-5705 (Nielsen, 4/99), wherein Arbitrator Daniel Nielsen
that the Employer did not violate the contract when it assigned CS II's to perform certain
duties. In so ruling, Arbitrator Nielsen found: "having supervisory nurses working as staff
included in the overall pool for random assignment to set-up work on special collections is a
practice." Id., at p. 7.
On the other hand, Arbitrator Nielsen found in another case that the Employer had
the contract when it assigned supervisors to perform recovery duties for reactive donors. See
American National Red Cross (Badger-Hawkeye Region) (Collection Clerk Grievance), Case
32, No. 56734, A-5708 (Nielsen, 4/99). In so ruling, Arbitrator Nielsen stated:
. . .
Articles I and XI provide exceptions whereby non-unit
can perform the work of unit
nurses. The logical implication is that, absent the exceptions, the work could not be
those non-unit employes. This implication is strengthened by the concession of Susan
the contract does generally reserve the taking of health histories and the extraction of blood
nurses. Thus I have concluded that the contract does prevent the Employer from assigning at
some bargaining unit work to non-unit nurses.
The scope of the contract's work
protection is not all encompassing. Article I distinguishes
the unit nurses from other employes by their performance of "collection
duties . . . in blood
collections." While every task performed by personnel assigned is in some way connected to
collection, the bargaining history and the testimony at hearing establish that ancillary tasks
necessarily protected. However, the contract's protection does extend to the core
involved in the blood collection process. Given the need for professional training and
the assessment and care of reactive donors, and the testimony that that task is part and parcel
overall collection process, caring for reactive donors is fairly characterized as a core medical
The fact that the Madison location has allowed collection clerks to be involved in caring for
donors, while the Green Bay location has until this grievance reserved this work to nurses
render the work unprotected. In Article XI, the parties used the pragmatic standard of "work
normally performed" to describe protected work. They negotiated this language knowing
were differing practices at the two locations. Inasmuch as the language used refers to actual
conditions, it can accommodate both practices.
Id., at p. 13 (Emphasis added).
. . .
Here, it is clear that CS II's have performed some of the very kind of bargaining unit
that traditionally has been performed by CS I's. Supervisor Potter acknowledged that very
in response to the Union's initial August 16, 1999, grievance, she agreed to start using
certain part-time CS I's who had their hours reduced to zero because CS II's had been
performing bargaining unit
duties. Indeed, the Employer's Brief at p. 2 acknowledges that the Union then argued "and
Employer agreed that this management right did not anticipate that non-bargaining unit
would replace bargaining unit employes who were ready, willing and able to work their
complement of hours. This practice ceased."
In addition, Arbitrator Nielsen stated that the Employer in the case before him
"supervisors rarely work as staff nurses." See Nielsen
Award, Case 30, No. 56727, A-5705, p. 6.
This earlier representation by the Employer indicates that CS II's have not
regularly worked as staff
nurses. The evidence here bears this out because Allen testified without contradiction that
before 1997 were normally assigned to mobile units; that CS II's were then mainly used on
occasions"; and that CS I's before 1977 "rarely" worked with CS II's.
There has been a substantial shift in the use of CS II's since then, as they are
and more of the duties previously performed by CS I's. That does not automatically mean,
that the Employer has violated Section 11.13 of the contract.
Thus, the Employer is not responsible for the fact that an employe retired; that some
at the Union's urging, no longer want to serve as Charge Nurses; and that the collection of
become more sophisticated. The failure to perform charging duties has forced the Employer
more CS II's as Charge Nurses. (This problem perhaps can be resolved if the Employer
hold meetings where operational issues are discussed with CS I's as Charge Nurses. If no
can be worked out, and if some CS I's refuse to perform charge duties, the Union has no
complaining that CS II's are performing charging duties.) In addition, some CS I's have
take certain training courses that would enable them to perform additional duties. Moreover,
increased use of mobile units has increased the need for help away from the Employer's
All in all, then, there are many reasons why CS II's are being used more and more to
bargaining unit work. Trying to ascertain whether all of this additional work by CS II's
contract, however, is now almost impossible to determine given the ambiguity of this record.
Nevertheless, one thing remains clear: if bargaining unit work is available,
Section 11.13 is
intended to at least preserve the number of hours that bargaining unit personnel performed in
As a result, the Employer was precluded from reducing the hours of part-time CS I's at the
that CS II's were performing bargaining unit work covered by Section 11.13.
Another group of possibly aggrieved CS I's are those part-time and full-time CS I's
assigned the same hours they had been working, but who were never given the opportunity to
any of the additional hours that the CS II's worked. Had those CS I's been given that
they would have been able to earn higher wages.
But trying to go back now in an attempt to recreate what should have been for all the
is an impossible task given the state of the record and some of the legitimate reasons related
which dictated that CS II's had to perform some additional bargaining unit work. Hence, it
speculative to award any backpay to either full-time CS I's or to those part-time CS I's who
maintained their prior hours.
As for those part-time CS I's who had their hours reduced, the record indicates there
sufficient bargaining unit work to perform even taking into account the changed
surrounding the Employer's operations. Indeed, Supervisor Potter herself acknowledged
she agreed on September 8, 1999, to offer such work to those part-time CS I's who had their
reduced to zero (Joint Exhibit 2F). The Employer's Brief at page 2 also acknowledges that
Employer agreed that this management right [to assign work] did not anticipate that
unit employes would replace bargaining unit employes who were ready, willing, and able to
their normal complement of hours."
However, since the Union did not immediately appeal Potter's determination by
its earlier August 16, 1999, grievance and by challenging whatever action the Employer took
time, it is improper to now award back pay for a grievance that was not properly filed under
contractual grievance procedure.
As for the future, the Employer is under a continuing obligation to respect the
boundaries set forth in Section 11.13 by not assigning bargaining unit work to supervisors if
causes any bargaining unit members to suffer any reduction in their
hours, as Section 11.13 preserves
bargaining unit work in the face of any such supervisory incursions.
This work preservation, however, only goes to the kind of "core" duties regularly or
historically performed by CS I's. See Nielsen Award, Case 32,
No. 56734, A-5708, pp. 13. "Non-core" duties hence can be assigned to non-bargaining unit
employes without running afoul of Section
What constitutes a "core" duty is difficult to determine based on this record.
it is clear that CS I's in 1977 were regularly assigned to work on mobile units and that CS
II's at that
time were only assigned to either assist them or to train new employes. Hence, CS II's
ever, worked alone on such occasions. As a result, and unless they are training new
assisting CS I's, supervisors cannot perform that kind of work alone, as that would violate
practice that existed in 1997. All such work at mobile sites which does not involve training
assisting CS I's therefore must first be offered to bargaining unit employes -- be they
part-time or full-time -- before it can be performed by supervisors.
The Union wants a broader remedy by pointing out that CS II's are now regularly
that there are now five more CS II's than there were in 1997; and that there are five less CS
of this shows that CS II's are performing much more work than they did in 1997 and that
being used more frequently than they were in the "random pool" referenced by Arbitrator
But again, the lack of clarity in this record and the fact that they are now performing
makes it impossible to ascertain all of the duties they are now performing. Working on the
units is clear, however, which is why the remedial part of this Award expressly addresses
Lastly, the Employer maintains that the grievance is without merit because
"Nothing contained in this Agreement shall be construed as a
guarantee or commitment by the
Employer to any employe of a minimum or maximum number of hours of work per day, per
or per year."
Nothing herein is meant to constitute any such "guarantee or commitment". All that is
here is that once the Employer chooses to have bargaining unit work performed, it cannot
Section 11.13 when it does so. This issue does not go to whether there should be guaranteed
it only goes to making sure that Section 11.13 is followed.
Based on the above, it is my
1. That the Employer cannot assign supervisors to perform the "core" bargaining
duties protected by Section 11.13 if any such assignments reduce the hours of any regular
or full-time CS I's who are able to perform that work.
2. That the Employer must first offer to its regular part-time and/or full-time
CS I's all
work at its mobile sites which does not involve training or assistance before it can assign
to supervisors if the CS I's are able to perform that work.
3. That to resolve any questions arising over application of this Award, I shall
jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 13th day of June, 2000.