BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OFFICE & PROFESSIONAL EMPLOYEES
LOCAL NO. 9, AFL-CIO-CLC (Union)
UNITED FOOD & COMMERCIAL WORKERS
LOCAL NO. 73A, AFL-CIO (Employer)
Case 1No. 58664A-5829
(Class Action Work Assignment Grievance dated 12-2-99)
Mr. Gary R. Nuber, OPEIU International Representative, 704
Hillcrest Avenue Nekoosa, WI 54457, appearing on behalf of the Union.
Mr. William Haus, Haus, Resnick & Roman LLP, 148 East
Wilson Street, Madison, WI 53703-3423, appearing on behalf of the Employer.
At the joint request of the parties, the Wisconsin Employment Relations Commission
designated the undersigned Marshall L. Gratz as Arbitrator to hear and decide a dispute
the above-noted grievance under parties' April 1, 1998 -- April 7, 2001 Agreement
Pursuant to notice, the grievance dispute was heard at the Employer's Milwaukee
April 27, 2000. The proceedings were not transcribed, but the parties authorized the
maintain an audio tape of the hearing for the Arbitrator's exclusive use in an award
parties' post-hearing briefs were exchanged on July 20, 2000, marking the close of the
At the hearing, the parties authorized the Arbitrator to formulate a statement of the
dispute with the benefit of their respective proposed formulations. At the hearing and in its
Union proposed that the issues be framed as follows:
1. Did the Employer violate the Agreement when it excluded
the position held by Susanne
Gavran from the bargaining unit?
2. If so, what is the appropriate remedy?
At the hearing, the Employer objected to the Union's proposed formulation on the
that the National Labor Relations Board has jurisdiction to determine whether a particular
is a confidential employee within the meaning of the National Labor Relations Act, and that
Arbitrator does not. The Employer proposed at the hearing that the issues be framed as
1. Did the Employer's assignment of work duties to Susanne
Gavran violate any provision
of the Agreement?
2. If so, what is the appropriate remedy?
In its brief, the Employer framed the issues as follows:
1. Does the Arbitrator have jurisdiction to determine whether
particular employee is a
confidential employee within the meaning of the National Labor Relations Act or is such
determination within the proper jurisdiction of the National Labor Relations Board?
2. Does the Agreement contain a work
assignment clause that precludes the Employer from
assigning work that has been performed by members of the bargaining unit to an employee
"confidential" and therefore excluded from the bargaining unit? Or did the Employer violate
terms of the Agreement when it assigned work otherwise performed by bargaining unit
an employee excluded from the bargaining unit by virtue of her confidential duties?
The Arbitrator frames the issue in dispute as follows:
What shall be the disposition of the class action work
assignment grievance dated 12-2-99?
PORTIONS OF THE
ARTICLE I -- DEFINITIONS
. . .
Section 3. The term
"employee/s" as used herein means all office employees coming under the
jurisdiction of the Union.
. . .
ARTICLE II -- RECOGNITION -- UNION SECURITY
. . .
Section 1. The Employer
agrees to recognize and hereby does recognize the Union as the sole
and exclusive collective bargaining agent with respect to rates of pay, hours and all other
conditions of employment for the appropriate bargaining unit herein established and described
Section 2. All regular full time
and regular part-time employees of the Employer's Milwaukee
and Oshkosh, Wisconsin area offices excluding professional employees, confidential
guards and supervisors as defined in the National Labor Relations Act, as amended.
Section 3. All employees
coming under the terms of this agreement shall become members of
the Union after the thirty-first (31st) day following the date of employment and shall remain
in good standing as a condition of employment.
Section 4. The Employer
agrees to deduct union dues and initiation fees from the wages of
employees in the bargaining unit who provided the Employer with a voluntary written
which shall not be irrevocable for a period of more than one (1) year or beyond the
of this Agreement, whichever occurs sooner.
Section 5. The management of
the business in all its phases and details shall remain vested in the
Employer. Rights of the Employer, the Union and the employees shall be respected and the
provisions of this Agreement for the orderly settlement of all questions regarding such rights
. . .
ARTICLE XIV -- WAGES
Section 1. Effective March 29,
1998, all employees on the payroll shall receive an increase of
fifty cents ($0.50) per hour.
Section 2. Effective April 4,
1999, all employees on the payroll shall receive an increase of fifty-five cents ($0.55) per
Section 3. Effective April 2,
2000, all employees on the payroll shall receive an increase of fifty
cents (0.50) per hour.
Section 4. The minimum
weekly wage rates shall be set forth in Exhibit "A" attached to this
Agreement and included as a part hereof.
Section 5. The minimum wage
rates provided in Exhibit "A" shall not operate to reduce the
wages of employees receiving higher wages than are provided for in this Agreement.
. . .
ARTICLE XVI -- SEPARABILITY
Section 1. In the event that
any provision of this Agreement shall at any time be declared invalid
by any court of competent jurisdiction or through government regulation or decree, such
shall not invalidate the entire Agreement, it being the express intention of the parties hereto
other provisions not declared invalid shall remain in full force and effect.
. . .
EXHIBIT "A" -- WAGES
Section 1. For the duration of
this Agreement the wage structure for the respective
classifications for new employees hired April 1, 1998 or later shall be as follows:
April 1, 1998
[There follows a rate schedule listing the
"Minimum Starting Rate" and "Minimum Rate" for 6-12
months, 12-18 months, 18-24 months and 24-36 months for classifications II through V.]
Section 2. The following pay scale is for new hires
in the Part-Time classification. The new rate
for the Part-Time position would only affect new employees. The employer would not
current employees to this pay plan.
[There follows a rate schedule listing rates
for 0-9 months, 9-18 months, 18-27 months, 27-36
months and over 36 months.]
Section 3. (A) All employees
hired on and after April 3, 1995 [sic] shall progress within their
respective classifications in accordance with the foregoing schedule.
(B) Employees who are transferred to a
higher classification shall, on the effective date of such
classification, be paid no less than the starting rate for such classification and shall progress
minimum of the classification in accordance with the foregoing schedule.
. . .
EXHIBIT "C" -- JOB DESCRIPTIONS
Section 1. The Employer is
obligated to properly classify its employees pursuant to the job
descriptions which are a part of this Agreement.
I - SUPERVISOR -
Develops and coordinates clerical
procedures of Local 73A. Provides confidential services to
Local 73A with regards to Labor Relations matters. May be a lead office employee that
supervisor of the office staff, and perform managerial responsibilities. May be responsible
and training all office personnel. May keep some book original records and personnel
standardize operation procedures. May be responsible for purchasing equipment and
Responsible for Employer's books and records, including cashiering, posting, compiling
reports, bookkeeping, keeping membership records. Prepares payroll, federal reports to the
of Internal Revenue, the National Labor Relations board and similar agencies, with only
supervision from the Employer. Operates appropriate office equipment and machinery.
for the accuracy of the records, compilation of summary statements, direction and training of
assistants as [well] as being responsible for her/his own work.
II - SECRETARY
Performs general office work, relieving the
business representative/s and/or officers of minor
duties. May take and transcribe dictation, using shorthand or a stenotype machine. Makes
appointments for the business representative/s and/or officers. Interviews people coming into
office. Answers and makes phone calls. Handles general and confidential correspondence.
appropriate office equipment and machinery. May supervise other employees. Frequently
upon to exercise considerable amount of independent judgment. Keeps records under the
of the office supervisor. Prepares statements, vouchers, posts, compile summary statements,
responsibility for the whole set of records or for seeing that the proper reports are filed on
records and reports.
III - STENOGRAPHER -
Qualified to perform the duties of clerks and
typists with little or no supervision. Performs such
work as taking and transcribing dictation involving the technical language and terms used by
Employer. Operates appropriate office equipment and machinery. May be called upon to
the work of Clerks and Typists. May maintain files, keep records, etc. Keeps records under
supervision of the Office Director or Bookkeeper. Prepares statements, vouchers, posts, but
required to make closing entries, compile summary statements, assume responsibility for the
set of records or for seeing that the proper reports are filed on time. May prepare payroll.
IV - STENOGRAPHER -
Performs routine stenographic duties and
related clerical work. Takes and transcribes, with
limited speed and accuracy, routine dictation involving standard business terminology and
moderate skill. Prepares and maintains minor records, reports or other relatively routine
tasks. Operate appropriate office equipment and machinery.
V - CLERK-TYPIST
Performs general clerical work not requiring
special schooling or training other than high school.
Under immediate supervision and instruction. Typewrites letters, reports, contracts and
from rough draft or corrected copy. Files records and reports. Answers the telephone and
other clerical work of a routine nature. Operates appropriate office equipment and
Section 2. In the event the Employer creates a new
position which differs from the classifications
which are a part of this Agreement, the description and rate of pay shall be subject to
. . .
The Employer is a labor organization serving some 6,500
members covered by approximately
100 collective bargaining agreements. The Employer maintains its main office in
satellite office in Oshkosh and has one Business Representative working from home in Fort
For many years, the Union has represented a bargaining unit consisting of the Employer's
employees. The Union and Employer have been parties to a series of collective bargaining
agreements, the latest of which is the Agreement at issue in this case. A second, separate
bargaining unit employees of the Employer exists, consisting of the Employer's
Although the Agreement recognition clause explicitly excludes "confidential
defined by the National Labor Relations Act, as amended, no one was excluded as such for
years, if ever.
In 1997, the Employer filed a unit clarification petition seeking to have Classification
incumbent Gloria Cooper's position excluded from the unit on the basis of her performance
allegedly sufficient to make her position that of a confidential employee under the National
Relations Act. After several days of hearing, the parties ultimately agreed in December,
the Employer would withdraw its petition on the basis that the parties agreed to disagree
the propriety of the continued inclusion of Cooper's position in the bargaining unit, and
rights to make future filings as they may deem necessary with regard to the disputed position
In or about early 1998, William White became President of the Employer after
the Employer for many years in other capacities.
Early in White's tenure as President, he and the Union negotiated about and settled
terms now consisting of the Agreement, which bears an execution date of May 14, 1998.
those negotiations, the parties revised the Exhibit "C" job descriptions in various respects.
those revisions, made at White's request, was to expand the reference to confidential duties
in the Classification I job description to its current form.
At various times since White became President, the Employer employed five office
four at its Milwaukee headquarters office, one at the Oshkosh office, and all five in the
unit. At some point in May or June of 1998, apparently after the Agreement
was settled, a Milwaukee office employee, Pat Brunker (last name spelled
That prompted White to discuss with Union President and Business Manager, Tony
White's interest in hiring a new a confidential office worker for a position outside the
When Vanderbloemen responded that the Union did not want to lose its fifth bargaining unit
White proposed, instead, that a new position be created within the bargaining unit, to be
filled by a
newly-hired employee, and to perform, among other duties, the confidential office duties
the Employer's labor relations.
On September 28, 1999, the parties met to discuss White's proposal to create a new
within the bargaining unit. During that meeting, White stated that the new position would
Employer to relieve Cooper of some of her functions and duties. The Employer proposed
position be placed in Agreement Classification III, for which the Agreement provides a set of
minimum rates for new employees at various lengths of service that are lower than the
minimum rates specified for Classification II. The Agreement contains no minimum or other
for new employees in Classification I; and it contains no minimum or other rates for existing
employees, only the wage increase provisions and other wage related language contained in
XIV and Exhibit A.
On October 12, 1999, White told Vanderbloemen by phone that White saw no need
further meetings regarding the new position and that if the new position's creation turned out
a "hassle," White would create the position outside of the bargaining unit instead. Later that
White wrote Vanderbloemen describing the duties and functions of the proposed bargaining
position to be titled "Bookkeeper-Secretary" as follows:
Performs general office work, relieving the
Business Representative/s and/or Officers of minor
duties. Make appointments for the Business Representative/s and/or Officers. Interview
coming into the office. Answers and makes phone calls. May be responsible for purchasing
equipment and supplies. Responsible for Employer's books and records, including
compiling international reports, bookkeeping, keeping membership records. Prepares
reports to the Bureau of Internal Revenue, the National Labor Relations Board and similar
with only occasional supervision from the Employer. Responsible for the accuracy of the
completion of summary statements, as well as being responsible for her/his own work.
statements, vouchers, post, compile summary statements, assume responsibility for the whole
records or for seeing that the proper reports are filed on time. File records and reports.
appropriate office equipment and machinery. Handles general and confidential
supervise other employees.
On October 14, 1999, Vanderbloemen wrote White expressing concern that
may not be appropriate given the duties of the new position and stating that it was the
understanding that Cooper's rate of pay would be red-circled and that she would continue to
all across-the-board increases for the term of her employment.
White responded by letter on October 15, 1999, disagreeing with Vanderbloemen's
14 letter, withdrawing his request to establish a new job classification in the unit, and asking
Vanderbloemen to contact him to discuss the matter.
On October 18, 1999, Vanderbloemen contacted White by phone. According to
Vanderbloemen's testimony, White stated that he was angry, unwilling to red-circle Cooper,
he may take back any raises already given to Cooper which are not specified in the
According to Vanderbloemen, White further stated that he wanted a smooth transition of
the new job or he would change the title to Administrative Assistant and take it out of the
unit. White testified that he did not recall threatening to take back any raises already given
Vanderbloemen and White met on October 26, 1999. At that time, White stated that
wanted the new job titled "Administrative Assistant" with an $11.00 starting rate, wanted
Classification I job retitled "Supervisor-Secretary," and wanted Cooper to continue to oversee
office and to receive contractual raises. The $11.00 starting rate was in excess of the
Minimum Starting Rates for newly-hired employees in Classifications II - V, which ranged
Vanderbloemen then wrote White on October 27, 1999, as follows:
During our discussion on October 26, 1999 regarding your intent
to establish a new bookkeeping
position at the Local 73-A Milwaukee office, you indicated that the new position would be
Administrative Assistant and that the position would be placed in Classification III. Many of
duties of the Administrative Assistant position are similar to the duties contained in the
Stenographer-Bookkeeper Classification III, the Secretary Classification II and the
Classification I position currently occupied by Gloria Cooper.
During our discussion on September 28,
October 12 and October 26, you indicated that it was
not your intent to remove Gloria Cooper from her position of Supervisor-Bookkeeper
I at Local 763-A through the establishment of the new position. It is also our understanding
Ms. Cooper's rate of pay would not be reduced and that she will continue to receive
all across the
board contractual pay increases.
If there are any questions regarding this issue, please let us know
. . . .
White responded by letter on November 8, 1999, stating that he disagreed with parts of
October 27 letter, and that ". . . after some current events that have happened in the office I
withdrawing my request to establish a new job classification with the union."
Vanderbloemen responded by letter on November 23, 1999, noting that the Employer
hired Suzanne Gavran and asking to which job classification Gavran will be assigned.
The parties' next interaction of record on the subject was Vanderbloemen's filing of
grievance giving rise to this arbitration. The grievance is dated December 2, 1999, though
letter transmitting it was dated December 3, 1999. It reads in pertinent part as follows:
EMPLOYEE: Class Action
PLACE OF EMPLOYMENT:
UFCW LOCAL No. 73A
INVOLVED: Article I-Definitions, Article II-Recognition -- Union
Security, and Exhibit "C" -- Job Descriptions
GRIEVANCE: On November 10, 1999 we received a letter from Local 73A
President, Bill White indicating that Local 73A was withdrawing a request to establish a new
classification with the union. As a result, bargaining unit duties of bookkeeping, accounts
typing among other bargaining unit duties have been assigned to an employee outside the
These duties are outlined in Job
Classification I, II and III of the Contract, properly belong within
the jurisdiction of the bargaining unit and have been performed by members of the
bargaining unit [at]
UFCW Local 73A for more than thirty years. These duties were assigned to bargaining unit
employee Gloria Cooper prior to November 8, 1999.
PROPOSED REMEDY: That
the duties assigned to non-bargaining unit employees be returned
to the bargaining unit. That Gloria Cooper be made whole for all hours of bargaining unit
performed by [Suzanne] Gavran or other non-bargaining unit employees from November 8,
During the processing of the grievance, Vanderbloemen wrote
White on March 21, 2000
requesting "the complete rationale as to why you feel [bookkeeping duties] does not belong
bargaining unit." White responded on March 23, 2000, as follows:
The reason why Local 73A believes that the disputed position
should not be included in the
bargaining unit is that the individual in the position assists and
acts in a confidential capacity to persons that formulate, determine
and effectuate management
policies for Local 73A in the field of labor relations. This means that the individual is a
employee under the law and may be excluded from the collective bargaining unit.
The grievance remained unresolved and was ultimately
submitted for arbitration as noted
above. At the hearing, the Union presented testimony from Vanderbloemen and Cooper.
Employer presented testimony by White.
Additional factual background is set forth in the positions of the parties and in the
POSITIONS OF THE PARTIES
The Arbitrator is not authorized by the Agreement or otherwise to determine whether
Suzanne Gavran is "confidential" under the National Labor Relations Act. The Arbitrator
confine his function in this case to interpreting and applying the Agreement, not external
If the Arbitrator finds it appropriate to determine whether Gavran is confidential
National Labor Relations Act, he should conclude that she is not confidential because she
play a role in any labor relations strategy sessions between management personnel; she is not
in the investigation of grievances; she has no input as to how the Employer will respond to
grievance; she has no ability to effectively recommend any grievance resolutions; and she
specific information relative to the Employer's "bottom line" position in contract
The general Agreement recognition clause exclusion of "confidential employees" from
unit, is modified, altered and restricted by the more specific and more recently modified
Exhibit "C" providing that bargaining unit positions "[p]rovides confidential services to Local
with regards to labor relations matters" and "[h]andles general and confidential
"[p]repares payroll, federal reports, to the Bureau of Internal Revenue, the National Labor
Board and similar agencies. . . ." Indeed, it was the Employer that proposed inclusion of
added to the Exhibit "C" job descriptions which more broadly and clearly reflected that they
confidential duties. The Employer negotiated the job functions contained in Exhibit "C" of
Agreement and cannot now be allowed to unilaterally remove that same work from the unit.
conclude otherwise would inappropriately render the quoted provisions of Exhibit "C"
The law does not prohibit the Employer from voluntarily agreeing to include confidential
in the bargaining unit as the Employer has done in this case.
Significantly, all of the job duties listed in the Employer's October 12, 1999 letter are
contained in at least one of the bargaining unit jobs described in Exhibit "C". To allow the
to remove jobs from the bargaining unit simply by rearranging their bargaining unit duties
license for the total elimination of the Union and the Agreement itself. Citing, Lockheed
Development Co., 109 LA 622 (Calhoun, 1997) (the parties' listing of a job in the agreement
defines the bargaining unit and limits employer's right to assign duties of that job to
The Employer's withdrawal of the new classification from the bargaining unit is
inappropriate, coming as it did in a bad faith response in retribution for the Union's
concerted activities during negotiations about the new position. Every time the Union did
automatically accept the Employer's conditions regarding the new position, the Employer
to withdraw and ultimately did withdraw the position from the bargaining unit, in violation of
8(a)1, 3 and 5 of the National Labor Relations Act.
Any contention by the Employer that Classification I Supervisor - Bookkeeper
position is not
a bargaining unit position must be rejected. The description for that position appears in
of the Agreement. The incumbent in that position, Gloria Cooper, is a Union member whose
are being forwarded to the Union by the Employer. The Employer has accepted and
grievances from Cooper in accordance with the Agreement, and the Employer has never
suggested that persons in Classification I are not in the bargaining unit represented by the
In its brief, the Union states its remedy request as follows:
. . . the grievance should be sustained. The "Administrative
Assistant" position occupied by
Suzanne Gavran should be recognized as a Bargaining Unit position. Any and all occupants
position should be required to abide by the Agreement, specifically Article II
Security). Suzanne Gavran should be ordered to become and remain a member of OPEIU,
in good standing from the date of the decision.
Clearly, the duties performed in the newly created position occupied by Suzanne
include confidential duties. Confidential employees, even when that function does not
majority of the employee's time, are not included in the bargaining unit under the recognition
of the Agreement or under NLRB law regarding composition of appropriate bargaining units.
Agreement, the law and common sense do not require that the Employer share its
relations information with a bargaining unit member represented by the Union. It is
limit an employee's work to the relatively small percentage of
work that involves confidential matters, and there is no legal or contractual
requirement to do so.
The integrity of the collective bargaining process demands that supervisors and confidential
employees be excluded from the bargaining unit.
While Exhibit "C" contains several job descriptions, it contains no expressed or
commitment that the work described in the job descriptions is exclusively reserved to
members. Indeed, the language of Exhibit "C" clearly implies the contrary. For instance,
"Supervisor - Bookkeeper" description expressly includes confidential, supervisory and
responsibilities. Clearly, such a position would not be deemed appropriate for inclusion in a
bargaining unit. Given the inclusion of such obviously inappropriate functions in the Exhibit
descriptions, it must be concluded that the parties did not intend for the job descriptions to
a description of bargaining unit work or for the job descriptions to restrict the assignment of
described therein exclusively to bargaining unit members. It cannot be seriously argued that
performance of supervisory and managerial functions constitute bargaining unit work and are
functions that are to be exclusively performed by members of the bargaining unit. If
supervisory functions is bargaining unit work and restricted to members of the bargaining
entire collective bargaining relationship would be dysfunctional. Arbitrators have viewed the
assignment of bargaining unit work to non-unit employees in varying ways; however, the
lack of any
contractual prohibition with regard to such assignments generally supports the propriety of
assignments. Citing Elkouri and Elkouri, How Arbitration Works, 5th Edition,
p. 758 and cases cited
Confidential employees are well defined in the law and are generally excluded from
units, including the unit described in the Agreement recognition clause. The record reflects
Gavran prepares disciplinary correspondence, participates in discussions related to labor
matters, will be expected to type collective bargaining proposals and maintains personnel
files and all
other confidential records related to labor relations in a locked cabinet near her desk to which
The disputed work assignments in this case have had no substantial effect on the
unit. A new job classification was created that would perform confidential duties among
responsibilities. That position was created outside the bargaining unit on the basis of the
duties performed by the employee. A new employee was hired to fill the position. No
employees were laid off. No bargaining unit position has been lost. Thus, there is no
the Employer's assignment of duties to the confidential new hire was intended to have or has
effect of harming job security for any member(s) of the bargaining unit, or the effect of
diminishing the bargaining unit. The Employer had a limited and valid purpose for
confidential position outside of the bargaining unit and for assigning appropriate duties to that
position so that there was an efficient use of the employee's time. The Employer acted in
to what had been an ongoing concern regarding the appropriate handling of confidential
There has been no showing of bad faith on the part of the Employer. The Employer's
actions in this
consistent with outcomes approved by arbitrators in published awards. Citing, Daniel
Associates, 69 LA 394, 398-99 (Lucas, 1977) (employer's good faith assignment of
duties to bargaining unit position and exclusion of that position from unit as confidential did
violate agreement) and Buckeye Cellulose Corp., 76 LA 889 (Ipavec, 1981) (employer's
faith transfer of supervisory functions of bargaining unit "crew leader" classification to
supervisor and elimination of crew leader positions did not violate agreement. Assignment of
supervisory, non-bargaining unit work to a member of the bargaining unit does not forever
the scope of bargaining unit work where supervisors are excluded from recognition clause
Finally, the confidential status of an employee performing the confidential duties of
disputed position is an issue to be determined by the NLRB and not by the Arbitrator. The
previous unit clarification proceeding reserved their rights to make future filings with regard
issue. The Employer did not disturb the bargaining unit inclusion status of the position of
incumbent at issue in that unit clarification proceeding. With the hiring of the new employee
reassignment of the confidential responsibilities, this matter should either be deemed resolved
should be resolved through the NLRB's unit clarification process. The Employer reserves its
to proceed to an NLRB unit clarification if necessary.
For those reasons, the grievance should be denied in all respects.
While the Employer correctly asserts that no bargaining unit employee has been laid
reduced in pay as a consequence of the disputed assignments of work to an employee outside
bargaining unit, those assignments have resulted in the bargaining unit's size being
decreased by one position. In the context of the small unit involved, that amounts to a 20%
in unit size, compared with the size of the unit (5 positions) prior to Brunker's resignation.
after Brunker's resignation, it was the Union's expressed concerns about losing its fifth
position that prompted White's ultimately unsuccessful efforts to negotiate a mutually
resolution whereby a newly hired employee in a newly created position within the bargaining
would perform the Employer's confidential office work.
The grievance asserts that the Employer violated the Agreement by assigning
duties of bookkeeping, accounts and general typing among other bargaining unit duties . . .
employee outside the bargaining unit." The record clearly establishes that the Employer has
various duties -- confidential and non-confidential -- previously performed exclusively by
unit personnel, to an employee outside the bargaining unit.
The central question in this case is whether, in all of the circumstances, the
the Employer the right to make those assignments to an employee outside the bargaining unit.
The recognition clause expressly excludes confidential employees from the bargaining
On the other hand, the parties have a long history of having confidential office duties being
by bargaining unit personnel or by the Local's officers, and not by an office employee
bargaining unit. That history alone cannot and does not negate the express exclusion of
employees from the bargaining unit. However, it does provide a factual background for
understanding the implications of the language of Exhibit "C".
Section 1 of Exhibit "C" contains job descriptions that have been negotiated by the
included in their collective bargaining agreement. Section 1 also obligates the Employer "to
classify its employees pursuant to the job descriptions which are a part of this Agreement."
descriptions which are a part of this Agreement" include those for all five of the
numbered I through V.
Some of those negotiated job descriptions in Section 1 specifically include references
confidential duties. Thus, reference is made to "[h]andles . . . general and confidential
correspondence" in the "II - Secretary" description, and reference is made to "[p]rovides
services to Local 73A with regards to Labor Relations matters" in the "I Supervisor -
job description. Those references do not appear to have been carelessly incorporated in the
Agreement, given the evidence that the descriptions were variously revised by the parties in
round of bargaining including, at the Employer's request, a broadening of the confidential
description in the Classification I job description.
Section 2 of Exhibit "C" requires that "[i]n the event the Employer creates a new
which differs from the classifications which are a part of this Agreement," both the
well as the "rate of pay" "shall be subject to negotiation" with the Union. That language
clearly intended to limit the Employer's rights to assign work in a manner that differs from
negotiated and agreed-upon descriptions of the classifications that are a part of the
limitation is that the Employer is required to bargain with the Union as to both the rate of
the description for a new position which differs from the classifications that are a part of the
Agreement. Without Section 2, Exhibit "C" would not provide a persuasive basis for
employer's right, for legitimate purposes, to unilaterally create a new position which differs
classifications which are a part of the Agreement, without bargaining with the Union about
description. However, with Section 2, the Employer is expressly required to negotiate
not only about
the rate, but also about the description of the job, as well.
However, when read together with the clear and unequivocal recognition clause
"confidential employees . . . as defined in the National Labor Relations Act" from
the bargaining unit, the above limitation on Employer rights contained in Exhibit "C"
Section 2 must
be interpreted as applicable only to "a new position not otherwise excluded from the
by the recognition clause which differs from the classifications which are a part of this
To do otherwise would inappropriately render the recognition clause exclusion of confidential
employees entirely meaningless. In contrast, the interpretation adopted by the Arbitrator
at least some effect to all provisions of the Agreement, with Exhibit "C" Section 2 limited to
positions not excluded from the bargaining unit by the recognition clause and with the
some of the duties described in Exhibit "C" descriptions would not be applicable if, but only
Employer were to create a true confidential employee position outside the bargaining unit --
something the Employer has not previously done in this unit for many years, if ever. If the
intended that the Employer was required to bargain with the Union about the description and
pay for a newly created position that is expressly excluded from the bargaining unit by the
clause, the language of the Agreement to that effect would need to say so in clearer terms
in Exhibit "C".
Interpreting Exhibit "C" Section 2 in that way, the phrase "new position which
classifications which are a part of this Agreement" in Exhibit "C" Section 2 does not include
positions occupied by confidential employees as defined by the National Labor Relations Act.
Hence, if the newly created Administrative Assistant position is in fact occupied by a
confidential employee as defined in the National Labor Relations Act, then the requirements
Exhibit "C" Section 2 would not apply in this case and the grievance would be without merit.
regard, it is significant that the Employer's actions at issue were taken in pursuit of
legitimate operational objectives of the Employer relating to the integrity of the Employer's
labor relations, and that they have not resulted in the layoff of any bargaining unit employee
not affected the rate of pay of any bargaining unit employe. The Employer's actions, both
its confidential labor relations office functions in a single employee outside the bargaining
assigning that employee additional non-confidential office duties to avoid the inefficiencies of
operations that would result from limiting that position to performance only of confidential
constitute a conventional management response to the circumstances the Employer faced in
The Employer's initial efforts, to find a mutually acceptable way to include the newly hired
and the newly created position in the bargaining unit, undercut the Union's contentions that,
the Employer's actions in this case were taken in bad faith.
However, if the newly created Administrative Assistant position is not in fact
occupied by a
confidential employee as defined by the National Labor Relations Act, then that position
a "new position which differs from the classifications which are a part of this Agreement"
meaning of that phrase in Exhibit "C" Section 2. In that event, Employer's actions at issue
in this case
would amount to a transfer of work from one or more bargaining unit classifications to a new
bargaining unit position which differs from the
classifications which are a part of the Agreement, without having negotiated with the
the applicable rate of pay or the description. As such, those actions would be in excess of
limitation on Employer rights contained in Exhibit "C" Section 2 and hence violative of the
Agreement. The relief requested in the Union's brief would be the appropriate remedy, to
requiring the Employer, effective upon the issuance of a determination that the
Assistant position is occupied by a confidential employee within the meaning of the National
Relations Act, as amended, to immediately: (a) treat the newly-created Administrative
position as a bargaining unit position covered by the Agreement; and (b) treat Suzanne
any other incumbent Administrative Assistant as a bargaining unit employee covered by the
Agreement including the union security requirements of Article II Section 3.
There remains, of course, the parties' dispute as to whether the Administrative
position occupied by Suzanne Gavran is a position occupied by a confidential employee as
by the National Labor Relations Act, as amended.
Inasmuch as both parties have clearly argued that such a determination is properly for
National Labor Relations Board and not for the Arbitrator to make, the Arbitrator accepts the
mutual agreement in that regard and does not make any determination on that question.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the issue submitted that:
The disposition of the class action work assignment grievance
dated 12-2-99 shall be as
1. If the Employer's transfer of duties
included in the job descriptions in Agreement Exhibit
"C" to a new unilaterally-created Administrative Assistant position outside the bargaining
a position occupied by a confidential employee within the meaning of the National Labor
Act, as amended, then the Employer did not thereby violate the Agreement.
2. If the Employer's transfer of duties
included in the job descriptions in Agreement Exhibit
"C" to a new unilaterally-created Administrative Assistant position outside the bargaining
unit did not
create a position occupied by a confidential employee within the meaning of the National
Relations Act, as amended, then the Employer did thereby violate the Agreement. In that
appropriate remedy would be that the Employer, its officers and agents, shall, effective upon
issuance of a determination that the
Administrative Assistant position is occupied by a confidential
employee within the meaning of
the National Labor Relations Act, as amended, immediately: (a) treat the newly-created
Administrative Assistant position as a bargaining unit position covered by the Agreement;
treat Suzanne Gavran and any other incumbent Administrative Assistant as a bargaining unit
employee covered by the Agreement including the union security requirements of Article II
3. Because the parties agree that it is for
the National Labor Relations Board rather than the
Arbitrator to determine whether the Administrative Assistant position is occupied by a
employee within the meaning of the National Labor Relations Act, as amended, the
no determination on that question in this Award.
4. In rendering this Award, the Arbitrator
has interpreted and applied only the Agreement
and not the National Labor Relations Act.
Dated at Shorewood, Wisconsin, this 17th day of October, 2000.
Marshall L. Gratz, Arbitrator