BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1667, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Klos, Flynn & Papenfuss, by Attorney Jerome J. Klos,
appearing on behalf of the County.
Local 1667, AFSCME, AFL-CIO, hereinafter referred to as the Union, and Vernon
hereinafter referred to as the County, are parties to a collective bargaining agreement which
for the final and binding arbitration of disputes arising thereunder. The Union made a
the concurrence of the County, that the Wisconsin Employment Relations Commission
member of its staff to act as an arbitrator to hear and decide a grievance over the meaning
application of the terms of the parties' agreement. The undersigned was so designated.
held in Viroqua, Wisconsin on June 8, 2000. The hearing was not transcribed and the
post-hearing briefs which were exchanged on November 27, 2000.
The County operates a nursing home, Vernon Manor, which has a capacity of 120
due to a decreasing census is not operating at full capacity. In October, 1999, the County
school-to-work students for three hours per day, one student on each of the three wards to
residents' beds. The Union filed a grievance claiming that the students were performing
unit work while bargaining unit employees had their regular work schedules reduced or
grievance was denied and appealed to the instant arbitration.
The parties stipulated to the following:
Did the County violate the collective bargaining agreement by
the manner in which it utilized
the school-to-work students?
If so, what is the appropriate remedy?
1.01 The County hereby recognizes the Union as the
bargaining agent for all
employees of the Manor except the supervisory employees, Administrator's Secretary, and
Nurses for the purposes of bargaining on all matters pertaining to wages, hours, and all
The Union advances two arguments to support its position. The first is that the
of school-to-work students entails a loss of earning opportunities for bargaining unit
submits that the work performed by students has traditionally been performed by bargaining
employees. It points out that two vacancies on the day shift have not been filled and
would have worked were crossed off the schedule because of the use of the students. It
the County should not use non-bargaining unit employees to replace bargaining unit
reduce their available work hours. The second argument is that if the County can utilize
school-to-work employees, they should be members of the bargaining unit. It submits that
the students are
under the supervision and control of the County and perform work historically performed by
bargaining unit members and are covered by the terms of the recognition clause. It cites
County, Dec. No. 6203-B (WERC, 8/98), wherein students were included in the unit.
It also cites
County of Ottawa (Ohio), 111 LA 833 (Frankiewicz, 1998) in support of its position. It
that the recognition clause is broad and the school-to-work students should be covered by the
collective bargaining agreement. It concludes that the County violated the parties' agreement
requests that the County cease and desist from using school-to-work students and, if this
inappropriate, the school-to-work students should be placed in the bargaining unit with the
conditions of their employment to be subject to negotiations between the parties.
The County contends that neither Union President Clark's testimony nor the work
show that bargaining unit employees' schedules have been reduced or adjusted by the
program. It claims that the evidence establishes that the only reductions that occurred
the reduced census of residents. It states that Vernon County, Dec. No. 6203-B
would impact a petition by the Union to clarify the bargaining unit but that is not the issue in
proceeding and the County does not address it. It concludes that as there is no evidence of
specific contract violation alleged, the grievance must be denied.
The Union's first argument, that use of the school-to-work students entails a loss of
to bargaining unit employees, is not supported by the evidence. Judy Clark, the Union's
testified that the census was down at Vernon Manor and that was the reason for the cut in
unit positions. The students are not assigned to replace any bargaining unit employees as the
have no certification to work with residents. The undisputed evidence establishes that the
make up residents' beds three hours a day, seven days a week and if they didn't do this the
Nursing Assistants would perform this work and spend less time with the residents.
making is work performed by Nursing Assistants, it is an ancillary duty and there is no
position at the
Manor that is assigned to simply make beds. It appears that no one was displaced by the
if the students were not there, no additional personnel would be hired or would have their
increased. Thus, this argument is not persuasive.
The Union's second argument is that the students should be included in the
It should be noted that this issue should be the subject of a unit clarification petition rather
arbitration, however Article I, Section 1.01 of the agreement is a broad recognition clause
be subject to interpretation by an arbitrator. Article I states the County recognizes the Union
exclusive bargaining agent for all employees of the Manor. The question is whether the
school-to-work students are employees. The Union states they are because they are under
the supervision and
control of the County. The evidence in this matter is insufficient to reach a conclusion that
employees. There is no evidence that the County selects these students, evaluates them, fires
or determines which days they work. The students may be doing this work as an educational
experience. It was not shown that making up beds was a "job" or position regularly assigned
same student. The facts in this case are distinguishable from the facts in Vernon County,
No. 6203-B (WERC, 8/98). There is no evidence of particular students being
and no evidence of any continued assignment beyond school. There was no showing that the
school-to-work students were in an employment relationship sufficient for them to be
under Article I of the contract, and the Union's second argument fails.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
The County did not violate the collective bargaining agreement by the manner in
utilized school-to-work students, and therefore, the grievance is denied.
Dated at Madison, Wisconsin this 5th day of December, 2000.