BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE CITY OF PARK FALLS
LOCAL 1405-A, AMERICAN FEDERATION OF
COUNTY AND MUNICIPAL EMPLOYEES,
Mr. Phil Salamone, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, appeared on behalf of
Attorney David Deda, Slaby, Deda, Marshall, Reinhard and
Fuhr, LLP., 215 North Lake Avenue, P.O. Box 7, Phillips, Wisconsin 54555-0007,
appeared on behalf of the City.
On March 12, 1999, Local 1405-A, AFSCME, AFL-CIO requested the Wisconsin
Employment Relations Commission appoint a member of its staff to hear and decide a
pending between the Union and the City of Park Falls. The Commission subsequently
William C. Houlihan, to hear and decide the matter. A hearing was scheduled for June 17,
subsequently postponed. The matter was rescheduled, and heard on September 15, 1999, in
Falls, Wisconsin. The proceedings were not transcribed. Post-hearing briefs were submitted
exchanged by November 15, 1999.
The parties stipulated to the following issue:
Does the City's contract for services with Helping Hands violate
Article 2 of the collective
bargaining agreement? If so, what is the appropriate remedy?
ARTICLE I RECOGNITION
Section 1. The Employer
hereby recognizes the Union as the exclusive collective bargaining
representative of all employees of the Board of Public Works and Sewage Disposal Plant, but
excluding supervisory, confidential, summer, temporary, part-time and/or casual help, on all
pertaining to wages, hours and working conditions and other conditions of employment.
2. The Employer further recognizes that all employees in the bargaining
unit have the
right to self-organization, to form, join or assist labor organizations, to bargain collectively
representatives of their own choosing and to engage in other lawful concerted activities for
of collective bargaining or other mutual aid or protection.
. . .
ARTICLE II MANAGEMENT RIGHTS
Management Rights: The parties to this Agreement
recognize that they are engaged
in a common endeavor in which each of them has separate and distinct responsibilities which
them are obligated to meet in a manner consistent with their mutual overriding responsibility
community as a whole. The Union recognizes and respects the obligation of management to
for the best interest and general welfare of the community. The Employer retains the sole
manage its government and business, including the right to decide the number and location of
employees, the machines and equipment used, the projects to be worked on, the methods of
the schedules of projects, the designing and engineering of projects and the scheduling of
or overtime work hours; to maintain order and efficiency in its operations; to hire, lay off,
assign, transfer, discipline, and discharge employees for just cause, subject only to such
governing grievance and arbitration as expressly provided in this Agreement.
2. Subcontracting: The Employer
shall have the right to contract for work where
necessary, whether or not such work is being performed by its employees, provided that any
employees as may be affected shall suffer no impairment of rights or benefits during the term
Agreement, including the right of the Union to represent employees.
. . .
ARTICLE XI WORKDAY, WORK WEEK,
Section 1. All employees covered by the terms of
this Agreement shall work the following
schedule of hours:
A. The workday shall consist of
eight (8) hours each day for five (5) consecutive days each
week, Monday through Friday, for a total of forty (40) hours each week.
1. The hours of work
shall be 7:30 A.M. to 12:00 Noon and from 12:30 P.M. to 4:00
P.M., Monday through Friday.
2. The hours of work
can be changed by mutual agreement between the Employer and
the Bargaining Unit. The agreement by the Bargaining Unit does not require each
individual employeee to agree but only the Bargaining Unit as a whole.
. . .
C. The custodian shall work forty (40) hours in five
(5) days, Monday through Friday, and shall
be responsible for the care of the building on Saturday and Sunday as necessary.
Compensatory time is to be taken during the normal work week for any work on Saturday
at the rate of time and one-half times the hours worked and any work on Sundays or holidays
at the rate of two times the hours worked. Work on Monday through Friday outside the
normal work day is to result in compensatory time hour for hour unless the employeee works
over eight (8) hours in a day, in which case the compensatory time is to be at a rate of one
and one-half times the hours worked over eight (8) hours. . .
. . .
The City of Park Falls has a crew consisting of ten individuals. The crew size has
since the initiation of subcontracting, which is the subject matter of this dispute. One
member of the
crew is classified as a Custodian. That also has remained constant throughout the period of
subcontracting. The custodian works at three sites; the municipal building, the
police/fire building, and the library. Custodial duties include interior duties such as
maintenance as well as exterior duties which encompass lawn care, plantings, and snow
In October of 1998, the library was remodeled. One impact of the remodeling was to
the amount of custodial work. Space that had previously been used as a garage was
a lobby. This increased the carpeted floor space and the dusting area by approximately one
The basement of the building was finished. Previously half the basement had been
non-public. The effect of finishing the basement was to increase the amount of space open to
public. Some second floor space was reassigned. A parking lot was added. A sidewalk was
lawn area was increased, and shrubs were planted. The Employer installed a new HVAC
an anticipated higher level of maintenance.
At some point in the construction process, Gregory Buraglio, the Union President,
conversation with Gary Olson, the Library Director. According to Buraglio, Olson remarked
expanded library would need more custodial attention. Olson went on to indicate that the
would have to sit down and discuss the consequences of that. That conversation never
The City determined to subcontract out the additional custodial work inside the
outside contractor, Helping Hands. A contract was executed in December of 1998, and took
in January of 1999. The work performed by Helping Hands is work which had previously
by bargaining unit employees. That custodial work is compensated at a relatively high rate
under the terms of the collective bargaining agreement between the parties.
The bargaining unit custodian continues to work as he did prior to the subcontracting.
hours have not changed as a result of the subcontracting. What has changed is that the
inside work the custodian performs has diminished. His work at the library focuses on
Testimony indicates that inside work is at times preferable to outside work in the cold
Testimony further supports a finding that the work performed by Helping Hands could be
an overtime basis. There is no dispute in this proceeding that bargaining unit employees are
of performing the work contracted to Helping Hands.
Helping Hands cleans the library from 8:00 a.m. to 10:00 a.m. on weekdays and
a.m. to 2:00 p.m. on Saturdays. This reflects the City's desire to have the library cleaned
the hours of operation of the library. Helping Hands brings in two to three people and a
commercial vacuum to do its work.
There is a history of subcontracting involving this Employer and bargaining unit. In
to late-1970's, the City subcontracted garbage collection. That subcontracting constituted a
permanent, ongoing operation. A bargaining unit member retired, and another was
Employer contracted out one truck driving and one laborer position, without bargaining with
Union, and without a grievance. Approximately three to four years before the subcontracting
rise to this grievance, the City subcontracted out its recycling operation. That too was a
ongoing process. The recycling contract involved one truck driver and one laborer position.
done unilaterally and without negotiation with the Union. That work was not regarded by
unit members as preferred work.
Periodically, the City contracts for the cleaning of sewers and the rehabilitation of
There is a dispute as to whether that is work City employees are capable and/or equipped to
Periodically, the City contracts for gravel hauling, snow hauling, the installation of
sewer lines, the installation of storm sewers, paving, the construction of curbs and gutters,
concrete work. All of this work is work the City crew is capable of performing. The Union
to be unaware of the existence of some of this work. There was a grievance filed over some
work and resolved on a non-precedential basis.
The parties stipulated that Article II Management Rights, Sections 1 and 2,
have been in
effect since 1972. They stipulated that the language relevant to this dispute has not changed
POSITIONS OF THE PARTIES
It is the position of the Union that the custodial position is a relatively preferred one
bargaining unit, and that the work is basically indoors thus removing employees from the
harsh winter weather of northern Wisconsin. Additionally, the position pays a relatively high
While there is no specifically expressed right to overtime work, when such work
available, it must be paid at a premium rate of pay. In some cases, it can double the rate of
employee earns. This is also a negotiated benefit which can significantly augment an
yearly income. Thus, together with the generally high rate of pay, there can be little
question but that
"employees as may be affected. . ." and that as a result of the subcontracting they, "have
. impairment of rights or benefits during the term of this agreement".
Additionally, the Union contends that it is not legally or contractually eligible to
employees of Helping Hands, Inc. Its certification and the contractual recognition clause
representation to employees of the Employer. Among the express limitations on the
ability to subcontract is that it may not impair "the right of the Union to represent
very existence of employees of Helping Hands constitutes an impairment of the Union's
represent the workforce.
The Union contends that the language in this agreement clearly and unambiguously
the subcontracting that has occurred. It cites several arbitrators for the proposition that
unambiguous contract language must be enforced.
The Union seeks a cease and desist order accompanied by a make-whole remedy.
In its reply brief, the Union takes issue with the City's contention that to adopt the
in this proceeding writes the subcontracting provision out of the agreement. As an example,
Union contends that during an extreme winter weather emergency where City streets could
possibly be made safe by the current workforce, even with all available employees working
overtime, it might be "necessary" to temporarily contract with either another public agency
concern in order to clear the streets. Such an occurrence would remain consistent with the
collective bargaining agreement. That example stands in contrast to the instant case where
contends that subcontracting was done on an extended basis and obviously designed solely to
It is the view of the Employer that the effect of the arbitrator accepting the Union's
is the same as striking Section 2, Subcontracting, from the agreement. In the Employer's
Article II Management Rights, read in its entirety, gives the City the right to
subcontract work. The
City notes that the custodian continues to work as before, doing the same type of work for
pay with no changes in hours due to the subcontracting.
To the extent there is any ambiguity in the contract language, the City contends that
numerous occasions in the past where subcontracting has occurred clarifies the intent of the
As to the Union's contention that it is not available to represent employees of Helping
the City's view is that that contention never arose during the course of the hearing and the
therefore precluded from raising the matter post-hearing. On the merits, the City takes the
that the right of the Union to represent employees can only refer to existing employees.
In summary, it is the view of the City that the City possesses the right under Article
Management Rights, to subcontract, so long as the existing Union employees are working
Potential additional employees or potential future employees are not members of the
and do not have protection of the contract. Had the City laid off a custodian and hired
Hands, the situation would be different.
The analysis of this dispute begins with Article II, Section 2, Subcontracting. That
addresses the right and restriction on the Employer to subcontract out bargaining unit work.
Contrary to certain arguments advanced in this proceeding, this is not a clear and
provision. The Article begins with a general right of the Employer to subcontract, whether
the work involved is performed by bargaining unit members or not. That general proposition
subject to restriction.
The first restriction on this expressed employer right is that the Employer may
work where necessary". The record is silent as to what constitutes "necessary" or who
decision as to what is and is not "necessary". It is not clear to me whether "necessary"
work; i.e., the necessity to get certain tasks accomplished, or to the term "contract", i.e., the
to search outside the work force due to a lack of equipment or expertise to perform certain
The "where necessary" provision was ignored by the Employer, and noted, though not
the Union's post-hearing brief.
The Employer's right to subcontract is additionally encumbered by a proviso, which
Employer under three circumstances. The Employer's act of subcontracting; 1) cannot
employee's rights, 2) cannot impair an employee's benefits, and 3) cannot impair the right of
Union to represent employees.
With respect to the first two provisos, the Union contends that employees have
loss, in that the custodian's access to overtime has been restricted or diminished, that other
employee's periodic access to the higher-rated custodial job has been diminished, and that
will now work a greater preponderance of time outdoors rather than the more favored
disagree. The Union acknowledges in its brief that there is no express right to overtime.
of the contract confirms this fact. I find no contractual right to perform out-of-classification
Similarly, I find no contractual right to work a preponderance of hours or any mixture of
when performing work at the library. Historically, the custodial job has consisted of indoor
outdoor work. It continues to do so. Article II, Section 1 gives the Employer the right to
the number of positions and goes on to grant to the Employer the right to determine the
type of work to be performed. All of the "rights" alleged to have been compromised fall
scope of the Employer's control of the workplace set forth in Article II.
Article XI, Section 1, C, addresses the hours of work of the custodian. There has
change in the hours of work of the custodian, and the hours worked by the custodian are
with those mandated by the collective bargaining agreement. This is the right created by
and it has not been altered.
The Employer is precluded from impairing employee benefits as a consequence of
subcontracting. In the context of benefits appearing in the same sentence as rights, I read the
contractual provision as a reference to traditional economic benefits such as health insurance,
vacation, sick leave, etc., set forth in the agreement. This reading of benefits, gives it a
separate and distinct from the notion of a contractual right, and avoids a redundancy. No
benefit has been altered for any employee, either explicitly or due to a reduction in hours and
concomitant loss of accompanying benefit.
The Employer's act of subcontracting does not impact the Union's right to represent
employees. The Union continues to represent the same number of employees and the same
employees it represented prior to the Employer's act of subcontracting. The Union never
contractual right to represent employees other than those of the Employer. The Union
have the same right to organize employees of Helping Hands that it possessed before the act
subcontracting. What the Union does not represent are those employees who perform the
To read this clause to require that, is to give it a circular meaning. That is, if the Union
represent all employees who perform all work for the Employer, the Employer has no right
subcontract. Such a reading effectively eliminates the general right to contract for work
which is the
premise of this section.
In the absence of clear and unambiguous language, I believe the practice of the
relevant. In this instance, there are two occasions under which the Employer subcontracted
operations. Additionally, there are a number of instances where the Employer has contracted
certain tasks. While the Union denies knowledge of relatively minor instances, I do not find
Union's contention in this regard to be persuasive. This is a small operation, and I find it
believe that bargaining unit members did not know who was hauling gravel and snow,
and sewer lines and doing blacktopping for the City. The Employer can only point to two
instances of subcontracting over a 20-year span. The relatively small number of instances is
compelling. However, the impact of the decision to subcontract out an operation is
significant. Here, the Employer has contracted out two operations. Both of these actions
under the language that is being construed today. Given the inherent magnitude of a decision
contract out bargaining unit work, I believe the Employer's actions to be both clearly
acted upon and readily ascertainable over a reasonable period of time. As such, I believe the
Employer has established an interpretive practice.
The grievance is denied.
Dated at Madison, Wisconsin this 26th day of September, 2000.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION