BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
TEAMSTERS LOCAL 346, AFL-CIO
HAYWARD COMMUNITY SCHOOL
Brown, Andrew & Signorelli, P.A., by Attorney
Timothy W. Andrew, appearing on behalf of the
Weld, Riley, Prenn & Ricci, S.C., by Attorney Kathryn J.
Prenn, appearing on behalf of the
Teamsters Union Local 346, AFL-CIO (herein the Union) and Hayward Community
District (herein the District) are parties to a collective bargaining agreement covering the
July 1, 1997 to June 30, 2001, and providing for binding arbitration of certain disputes
parties. On May 24, 2001, the Union filed a request with the Wisconsin Employment
Commission (WERC) to initiate grievance arbitration over the subcontracting of bargaining
by the District, and further over the failure of the District to award a vacated position to
Thayer, both allegedly in violation of the collective bargaining agreement, and requested the
appointment of a member of the WERC staff to arbitrate the issue. The undersigned was
to hear the dispute and a hearing was conducted on August 7, 2001. The proceedings were
transcribed. The parties filed briefs on September 11, 2001. The District filed a reply brief
September 27, the Union filed a reply brief on September 28 and the record was thereupon
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties were unable to stipulate to a framing of the issues. The Arbitrator,
frames the issues as follows:
Is the issue of the District's failure to fill the position vacated
Linda Briggs arbitrable?
If so, did the District violate the collective
bargaining agreement by failing to fill the position
vacated by Linda Briggs?
If so, what is the appropriate remedy?
Did the District violate the collective
bargaining agreement by subcontracting with a private
vendor for evening cleaning services at the Primary School?
If so, what is the appropriate remedy?
ARTICLE III SENIORITY
. . .
Section 5: Promotions - All new and vacated
positions Shall be posted at each school for a
period of five (5) working days. Such posting shall state the job to be filled, the date the job
is to be
filled, qualifications for the job, and the rate of pay. Interested employees may apply for
vacancies by notifying the District Administrator, in writing, of their interest, during the
period specified above.
New positions and vacancies shall be
awarded to the most qualified applicant; provided, however,
that before anyone is hired from outside the bargaining unit, qualified bargaining unit
be given preference. Where qualifications are equal, seniority shall prevail. The
employees shall be determined by the District based on physical fitness, knowledge, skill and
efficiency. Any current part-time or seasonal employee may make application for year round
vacancies. An employee being promoted to a higher paying position shall serve a
of ninety (90) calendar days. In the event the Board determines that employee is not
qualified to fill
the position before the end of the probationary period, the Board reserves the right
to return the employee to his former position at his former rate of
pay. The employee also has
a ninety (90) day option to disqualify himself/herself and return to their former position at
rate of pay. Probationary employees are not eligible to post for positions.
. . .
ARTICLE V GRIEVANCE PROCEDURE
. . .
Section 2: For the purpose of this Agreement,
a grievance is defined as a difference of opinion
regarding the interpretation or application of this Agreement. All grievances must be
Step 1: An
earnest effort will be made to settle the matter informally between the
aggrieved employee and the employee's immediate supervisor.
Step 2: If the
matter is not resolved in Step 1, the grievance shall be reduced to writing and
clearly state the specific Section(s) of the Agreement that are alleged to have been violated,
the time and place of violation, and the relief sought. The written grievance should be
presented by the aggrieved employee to the immediate supervisor (copy also to the steward)
within ten (10) working days after meeting with the immediate supervisor. The immediate
supervisor shall give his/her written answer to the employee within ten (10) working days of
the time the grievance was presented to him/her in writing.
Step 3: If not settled
in Step 2, the grievance shall within ten (10) working days, be appealed
in writing to the District Administrator. The District Administrator shall give a written
answer no later than ten (10) working days after receipt of the appeal.
Step 4: If not settled
in Step 3, the grievance shall, within ten (l0) working days, be appealed
in writing to the Board of Education.
Step 5: The Board of
Education shall give the written answer within thirty (30) days after
the receipt of the appeal.
Step 6: Any grievance
which cannot be settled through the above procedure may be
submitted to final and binding arbitration by either party requesting the Wisconsin Employee
Relations Commission to appoint a member of the Commission or its staff as arbitrator.
The sole function of the arbitrator shall be to determine whether
or not the employee's rights have
been violated by the District contrary to an express provision of this Agreement. The
have no authority to add to, subtract from, or modify this Agreement in any way. The
have no authority to impose liability upon the District arising out of facts occurring before
effective date or after the termination of this Agreement. Any decision by the arbitrator
scope of his authority shall be final and binding upon the District, the Union and the
All arbitration proceedings shall be hold at
such time and place as shall be mutually agreed upon
between the District and the Union. If the District and the Union are unable to agree, the
place of hearing shall be designated by the arbitrator. In all arbitration proceedings, the
the Union shall each have the right to be represented by counsel, the opportunity to confront
cross-examine witnesses, and the opportunity to present arguments orally as well as by
brief. The arbitrator's decision shall be based upon the evidence presented at the hearing and
issue a written decision stating the reasons for his determination.
Both parties shall share equally the costs
and expenses of the arbitrator, if any, including
transcript fees and other expenses of the arbitrator. The cost of the WERC filing fee shall be
the party requesting arbitration.
The time limits set forth above are
mandatory. Failure to act within prescribed time limits shall
constitute a waiver of the grievance. Unless otherwise noted, "days" refer to "calendar
. . .
ARTICLE XVII MANAGEMENT RIGHTS
Except as expressly modified by other
provisions of the contract, the School Board possesses
the sole right to operate the School District and all management rights repose in it. These
rights include, but are not limited to, the following:
Section 1: Operational Rights
. . .
4. To contract out for
goods and services provided no present bargaining unit employee
is reduced in hours or placed on layoff as a result thereof;
. . .
Section 2: Personnel Management
2. The District reserves
the right to hire, promote, transfer, schedule and assign
employees in positions within the school District and to create, combine, modify and
positions within the School District. Any layoffs that are necessary for the efficient
of the District will be determined by seniority, provided the remaining employees are
to perform the available work.
. . .
OTHER RELEVANT LANGUAGE
ARTICLE VI HOURS OF WORK, WORKWEEK,
. . .
Section 2: Hours - The normal daily work shift for
all full-time employees shall consist of eight
(8) hours. The normal work shifts shall run from 7:00 a.m. to 3:30 p.m. and from
3:30 p.m. to 12:00
midnight each including a thirty-minute unpaid lunch period. Summer hours shall be 7:00
4:00 p.m. with a one hour lunch break for all employees. Shifts will be rotated
equally except for the
occupants of six (6) positions: Building supervisors, Stone Lake custodian, custodian with
room supervision, and custodian with mail pickup duties.
. . .
Section 5: Overtime - Employees shall receive time
and one-half (1 1/2) their regular rate of pay
for all time worked in excess of forty (40) hours per week and shall receive time and
one-half for any
hours worked on Sundays and holidays. The employer shall not change the normal eight (8)
shift to avoid payment of weekly overtime.
Linda Briggs was a full-time employee of the Hayward Community School District,
as a housekeeper at the District's Primary and Intermediate Schools. Late in February,
resigned her position. Subsequently, the District posted the position vacated by Briggs and
Thayer, another member of the bargaining unit, sought to transfer into the position.
District elected not to fill the position, but instead
restructured the custodial staff by reassigning three other custodians, Roger Jones,
Mike Kanzler and
Terry Porter, who had previously worked part-time days at the Intermediate School and
nights at the Primary School, to full-time day positions at the Intermediate School and using
substitute employee at the Primary School for the balance of the school year. Also, in
the District elected to subcontract the night cleaning at the Primary School to Ron's Quality
a private contractor which had been providing cleaning services at the District's Middle
August 7, 2000.
The Union grieved the District's action and, on March 27, 2001, Union
Roderick Alstead issued a Step 3 grievance letter to District Administrator William Trautt as
. . .
Consider this letter a grievance filed on behalf of the
Unit disputing the District's
plan on sub contracting Bargaining Unit work.
Per our Phone conversation on Monday,
March 26, 2001, you informed me that the School
District has made the decision to sub contract work that was being done by a Bargaining unit
employee until her resignation. You posted this vacancy but decided not to fill this position
sub contract this work, claiming Article XVII Management Rights, allows you this
We're disputing this action and disagree
with your interpretation of Article XVII. This position
should be posted/filled and remain in the Bargaining Unit.
Please respond to me per Article V -
Grievance Procedure. If you have any questions, I can
be reached at (218) 628-2545.
. . .
Trautt denied the grievance in writing on April 3, 2001, whereupon Alstead issued a
Step 4 letter to
the Board of Education on April 5. The Board likewise denied the grievance pursuant to a
issued by the Board's legal counsel to Alstead on April 23.
Separate from the above events, the Union filed a grievance on behalf of Peter
April 9, 2001, over the failure of the District to grant his request to transfer into Briggs'
position. On May 1, Administrator Trautt responded in writing to the effect that, according
understanding of the collective bargaining agreement's requirements, Thayer would be given
consideration prior to hiring a new employee for a housekeeping position. There was no
exchange of correspondence regarding the Thayer grievance and the Union's request to
grievance arbitration on all the foregoing matters followed thereafter.
At the hearing, Union Representative Rod Alstead testified that he was informed by
Superintendent Trautt that the District intended to subcontract Linda Briggs' hours, which
his March 27 grievance letter to Trautt objecting to the subcontracting and demanding that
position, which had been posted, be filled according to the terms of the contract. He later
that Briggs' hours were reassigned and that the subcontracted hours were evening cleaning
the Primary School. It was Alstead's testimony that he was unaware of any bargaining unit
whose regular hours were reduced, or who were laid off, as a result of the subcontracting.
were employees who lost overtime opportunities as a result of the action, however. It was
position that the contract precluded the District from subcontracting a vacant position and,
that once a position is posted Article III, Section 5, requires that it be filled according to the
procedure set forth therein. He testified that the District may, and does, offer overtime
vacations and absences to seasonal or casual employees, but that it may not offer the hours to
subcontractor. Overflow work may be subcontracted because it does not take away work
done by bargaining unit members. Likewise, the work at the Middle School could properly
subcontracted because it had not previously been done by the bargaining unit, hence the
subcontracting of that work was not grieved.
Custodian Gordon McClurg testified that Linda Briggs had worked days as a
splitting time between the Primary and Intermediate Schools. The evening cleaning had
been done on a rotating basis by bargaining unit members Ron Reisner, Roger Jones, Mike
and Terry Porter. After Briggs' resignation, her hours were ultimately redistributed between
Jones, Kanzler and Porter, at which point the evening hours were subcontracted. He further
that if one of the former evening cleaners was unavailable, the District attempted to obtain a
substitute and, failing that, offered the hours to him, which he occasionally accepted. He
get offered evening hours now that they have been contracted out. He admitted, however,
overtime opportunities do still arise within the unit.
Jeff Coddington, Head Custodian at the Middle School, corroborated McClurg's
regarding the method in which overtime hours for evening cleaning at the Primary School
assigned prior to the subcontracting. He stated that, due to the variable nature of overtime,
unaware of any employee who actually lost overtime as a result of the subcontracting, but
the loss of the opportunity was the basis of the grievance, despite the fact that the contract
For the District, former Superintendent William Trautt testified that when the Middle
was built, the School Board considered all options in providing for evening cleaning and
determined to subcontract based on cost and administrative factors, as well as previous
subcontracting. When Briggs resigned, the District initially used a long-term substitute to fill
hours until it determined a permanent solution. Ultimately, the Board considered it more
effective to reassign employees to Briggs' hours and subcontract the evening cleaning at the
School. He indicated that the Union had never objected to the
use of substitutes to clean at the Primary School and, in fact, both McClurg and Union
Bohmann had argued in the past that more substitutes were needed because bargaining unit
did not want all the overtime hours. Trautt indicated his understanding that Article III,
does not mandate filling a posted position, but only specifies the procedure to be followed if
decision to fill is made. He further stated that the language of Article XVII, Section 1,
only refers to "regular" working hours, as defined in Article VI, Section 2, not
The District offered additional testimony from Attorney Kathryn Prenn regarding
history relative to the subcontracting language. Ms. Prenn testified that the subcontracting
been negotiated by her late law partner, Stevens Riley. She further testified that within her
reference to hours in the clause is understood to mean only regular working hours and that
would have had the same understanding when he negotiated the language.
POSITIONS OF THE PARTIES
The subcontracting of evening cleaning work at the Primary School has resulted in
hours for bargaining unit employees. In the past, bargaining unit members were regularly
overtime hours when one of the regular evening workers was absent. Since the District has
subcontracted this work, overtime opportunities have been significantly reduced. Although
is not guaranteed, and no employee has had their regular hours reduced due to the
nonetheless the term "hours" in Article XVII, Section 1, Paragraph 4, is unqualified and the
overtime, therefore, does constitute the loss of hours. This is analogous to City of Oshkosh,
213, No. 49934, MA-8109 (Gratz, 7/18/95), wherein the arbitrator held that the unqualified
"hours" as used in that contract included extra as well as regular hours and that if they had
a more restrictive definition they should have included it.
The District contends that the use of the heading "Hours" for Article VI, Section 2,
section that defines regular working hours, establishes that this is the true meaning of the
with words used to head other sections, however, "hours" is not defined, but is merely used
general subject heading. The section itself does not define "hours," but merely sets forth the
bargaining unit's right with respect to setting shifts. The District would have the Arbitrator
word "normal" or "regular" to "hours," which the contract prohibits the Arbitrator from
The District's interpretation of "hours" would also make the language restricting
subcontracting superfluous, because the employees' regular work hours are already protected
Article VI, Section 2 and Article VI, Section 7. It is established that, given a choice
between alternatives, an arbitrator should prefer an interpretation that gives effect to all
language over one which renders a provision meaningless. Elkouri and Elkouri, How
Works, 5th Edition, p. 493 (1997).
It was also recognized in School District of Beecher-Dunbar-Pembine, Case 30, No.
56866, MA-10441 (Greco, 8/30/99) that where a subcontracting clause exists, subcontracting
be used to undermine the Union by farming out bargaining unit work. Subcontracting
for the purpose of protecting bargaining unit employees and, therefore, it requires more
justification than merely reducing the employer's costs of operation. Here, if the
upheld employees will not be protected because bargaining unit hours will be lost. In fact,
XVII, Section 1, Paragraph 4, will have no protective effect whatever if it is interpreted to
to regular working hours, because those protections exist elsewhere in the contract. The
subcontracting of work at the Junior High School is a different situation because the building
and the District has always subcontracted the cleaning services there, resulting in no
hours to the bargaining unit. The Primary School has always been cleaned by bargaining
employees, however, and is a different case completely.
The Arbitrator should disregard the testimony of the District's counsel regarding the
of the contract language. She testified as to what her firm interprets the word "hours" to
thus implied that was likewise the meaning given it by her late law partner, Stevens Riley,
actually negotiated the language. Inasmuch as there is no evidence that Mr. Riley conveyed
interpretation of the language to the Union negotiators, his belief as to its meaning has no
Further, since the language in question was proposed by the District, it is a recognized
contract law that, to the extent the language is ambiguous, it must be construed against the
Riley did not seek to clarify the meaning of the term, which he could have done, thus it must
the meaning proffered by the Union. This is also consistent with the opinion of Arbitrator
The District contends that the issue of the filling of Linda Briggs' position is not
because the Union did not properly grieve it, but the record indicates otherwise. Union
Representative Alstead informed the District in writing on March 27, 2001, that the Union
protesting the failure to fill Briggs' position. Alstead believed, incorrectly, that the
hours were those previously worked by Briggs, but the point is that Briggs' position was
was not filled and the Union objected to this in a timely and appropriate fashion. The Peter
grievance is not at issue and the time of its filing is not relevant to the filling issue. The
was raised simultaneously with the subcontracting issue because the District Administrator
them in his conversation with Alstead. It is, however, a separate issue and should be
decided by the
Article III, Section 5 of the contract contains mandatory language regarding the
filling of vacant positions, requiring the District to post the positions at specified places for
times, and requiring it to award the positions to the most qualified applicant, giving
preference to applicants from within the bargaining unit. This language guarantees
members the rights to have their qualifications judged, to have their seniority considered,
qualified, to be promoted to available positions on the basis of their seniority. This is an
protection to bargaining unit members.
The former Administrator testified that the District posted Briggs' position and, after
who applied for the position, decided to hire a long-term substitute instead. The District
it can follow Article III, Section 5, or not as it chooses by simply avoiding the issue by using
long-term substitutes or subcontractors, but this is not so. The provision requires all new
positions to be posted and ultimately be awarded to the most qualified applicant. The
interpretation impairs the rights of bargaining unit members to be considered for promotions
not be upheld.
The grievance filed on behalf of the bargaining unit on March 27, 2001, concerned
District's decision to subcontract night cleaning work and specifically referenced Article
Ex. #2) It did not mention Article III, which deals with job posting. The job posting issue
raised until a separate grievance was filed by Peter Thayer on April 9, 2001. (Union Ex.
Thayer grievance was not advanced and is not arbitrable, nor, therefore, is the issue of the
fill Linda Briggs' former position.
The Union's grievance on the issue of filling Briggs' position must also fall on the
Article XVII gives management broad powers over the area of staffing. After Briggs
District weighed its options, which included reassigning other staff, subcontracting and hiring
replacement. The job was posted to avoid undue delay and Peter Thayer posted for it. The
however, opted to reassign other employees to fill Briggs' hours and subcontract the night
hours vacated by those employees. The Union argues that once a vacancy has been declared,
be filled, but this is not mentioned in the contract. The contract merely requires that if the
intends to fill a position it must give preference to qualified members of the bargaining unit.
stated, however, the District decided not to fill the position, but subcontract the night
The Union argues that the phrase "New positions and vacancies shall be awarded."
Arbitration is not the appropriate forum for rewriting contract language and the section does
require filling all positions. It only states that if a position is filled it must be
done according to the
method set out in the contract. The Union's interpretation, if adopted, would make the
regarding subcontracting superfluous. It is a principle of contract interpretation that contracts
be read in such a way as to give all provisions meaning, if possible, therefore the job posting
cannot be read to mean that all open positions must be filled. The District's action of
position did not void its management rights to eliminate positions. The contract does not
management's power in the way sought by
the Union. To hold otherwise would require the Arbitrator to modify the terms of the
the grievance procedure forbids. Where no restriction exists, the District's action must be
unless it is found to be arbitrary, capricious, or in bad faith. No such evidence exists in the
Article XVII, Section 1, Paragraph 4, gives management the right to subcontract for
and services as long as such subcontracting does not reduce the hours or result in the layoff
present bargaining unit employee. The Union characterized its grievance in terms of
objecting to the
subcontracting of bargaining unit work. The contract does not prohibit the subcontracting of
bargaining unit work, however, only the reduction of hours or layoff of present employees.
parties agree that no layoffs resulted from the decision to subcontract. The Union argues,
that bargaining unit employees will lose hours, based upon the loss of overtime opportunities.
"Hours," as used in Article VI, clearly and unambiguously refers to the employees'
or regular daily work shifts. Had they intended a more expansive definition, they could have
negotiated different language, but they did not. The term "hours" is commonly understood
to the regular shift and was even used in that way by the Union's own witnesses, Gordy
Jeff Coddington. Both Coddington and Union Representative Alstead further testified that no
bargaining unit employee had had their hours reduced due to the subcontracting. Article VI,
7, provides that employees' hours shall not be reduced in the event of a layoff. Here, again,
it is clear
that only regular hours are considered, not overtime.
Former Administrator Trautt testified that in other school districts with similar
language, there is no restriction on subcontracting vacant positions and such actions are not
challenged. This is consistent with the practice followed by the Hayward School District.
the language found in the contract was negotiated by Attorney Stevens Riley, a late partner
Attorney Kathryn Prenn. Ms. Prenn testified that the language is considered "boilerplate"
firm and is commonly understood to refer only to regular work hours, not overtime, an
that Riley would have adhered to, as well.
Article VI, Section 2, defines hours as the normal work shift. The subcontracting
contains no alternative interpretation. No member of the bargaining unit has had their hours
In City of Park Falls, Case 20, No. 57383, MA-10605 (Houlihan, 9/26/00), the arbitrator
in a similar case that hours of work are created by the contract. As in that case, the hours of
here are established by contract and have not been altered by the subcontracting.
The Union's argument is further undercut by the fact that the contract does not
overtime. Article VI, Section 5, provides that overtime work shall be paid at time and
does not guarantee a minimum amount of overtime or require that all overtime hours be
the bargaining unit, which was admitted by the union's witnesses.
It has been held that the fact that subcontracting may result in fewer overtime hours
necessarily constitute a contract violation. See, Videotape Productions of N.Y., Inc,
51 LA 600
(Turkus, 1968); City of Kenosha, Case 17, No. 49810, MA-8072 (Mawhinney, 7/12/94).
is no guarantee of overtime in this contract and no employee has had their regular hours
The District has subcontracted cleaning work at the Middle School. This decision
potential hours of overtime work, but the Union did not grieve the action. Further,
Alstead conceded that the District could subcontract overflow and construction work without
violating the Union's rights under the contract. These also would result in overtime
for bargaining unit members, so clearly the Union does not feel that all work is protected on
that it would provide available overtime hours to the bargaining unit. In fact, when hours
need to be
filled the first option is to seek substitute employees and to only offer overtime when none
available. (See, Union Ex. 1 and 2). Former Superintendent Trautt testified that bargaining
members complained about overtime and wished for more substitutes. Further, they are free
decline overtime. Thus, there is no way to clearly determine if any employee has even been
in the amount of overtime they are offered. It is the speculative nature of overtime that
why it is generally not considered as "hours" for subcontracting purposes. See, Ideal
Mfg. Co., 67 LA 227 (Chuckley, 1976); Appleton Area School District, Case 66, No.
MA-9261 (Greco, 9/19/96).
There is no evidence that the District's action was arbitrary, capricious or taken in
Trautt testified that, at the time of the action, Union Steward John Bohmann admitted it was
the District's rights. The Union did not refute this testimony. The District considered many
alternatives to addressing its need and listed the factors that favored subcontracting, including
supervision, non-availability of substitutes, need to purchase equipment and prior experience
subcontracting. The Superintendent consulted with the Head Custodian before reassigning
custodians and subcontracting the evening hours and he did not challenge the District's
do this. Clearly, the action was within the District's management rights and should be
What the Union seeks is to alter the language of the contract. The Union has claimed
throughout that it seeks to prevent the subcontracting of bargaining unit work. There is,
no restriction on subcontracting bargaining unit work in the agreement. The contract
restricts reducing the hours of current employees, which is an entirely different matter. If
wants to change the language of the contract, it must do so through negotiation, not
arbitration. For all of the foregoing reasons, the grievance must be denied.
The District suggests that the work it subcontracted was that done formerly by Linda
This is not the case. The work was formerly done by other bargaining unit members who
subsequently transferred to other duties. The District further suggests that the Union is
the Peter Thayer grievance and that such is not arbitrable. The Union is not advancing the
grievance, but rather the grievance filed by Representative Alstead on March 27, which
the matter of the filling of Briggs' position in issue and is arbitrable.
The District argues that the contract must be read as a whole and that Article III,
cannot be interpreted to mean that all positions must be filled. The Union does not dispute
that it is
within management's right to determine the numbers and kinds of classifications to perform
It does argue, however, that the language of Article III, Section 5, is mandatory and that,
posted, the District is required to fill a vacant position according to the method set forth
The District's arguments that the words "normal" or "regular" should be inferred
interpreting the meaning of "hours" are specious. The testimony of the Union's witnesses
"hours" are their normal shifts does not support the District, because they were not called
testify to the meaning of contract language, but to when they were regularly scheduled to
Further, Trautt's testimony about his experiences with subcontracting in another school
irrelevant, because there was no comparison of the relevant contract provisions, nor evidence
effectof the subcontracting on the available overtime to the other
bargaining unit. Also, no inference
can be drawn from the fact that the Union did not grieve the subcontracting of work at the
School. The Middle School was a new building and bargaining unit members had never
there, so no bargaining unit members lost work by the subcontracting.
The District cites several cases in support of its arguments, all of which are irrelevant
issues here. None of them address the issue of whether the employer's actions reduced hours
bargaining unit employees, nor do they interpret identical contract language. Further, the
expressed in Videotape Productions of N.Y., Inc, 51 LA 600 (Turkus, 1968) clearly a
view regarding the importance of overtime opportunities and most authorities recognize that
is often viewed as a central feature of collective bargaining relationships. Further, the Union
not contend that the District's action was "arbitrary, capricious, or in bad faith," but that it
violates the language of Article XVII, Section 1, Paragraph 4.
The Union is not attempting to alter contract language, but is asking the Arbitrator to
the contract. It is the District that is seeking to amend the contract by reading the words
or "normal" as modifiers to the word "hours" though they do not appear.
Hours is an unqualified term and, given its ordinary meaning, includes overtime hours.
should give the language its ordinary meaning and uphold the grievance. To do otherwise
render the protections of Article XVII, Section 1, Paragraph 4, meaningless, because regular
hours are already protected elsewhere in the contract.
The Union's reliance on City of Oshkosh, Case 213, No. 49934, MA-8109, (Gratz,
7/18/95) is misplaced. That case involved transit workers who were permitted to post for
runs as well as shorter runs, known as "trippers." The City decided to contract out two of
"tripper" runs, which were regularly scheduled runs, posted and awarded by seniority, not
overtime opportunities, as is the case here.
Contrary to the Union's assertion, the District did not hire a long-term substitute to
Briggs' position, but only used a substitute in the interim while it considered its options.
would not be feasible to now post and fill Briggs' position as the Union requests. Briggs'
reassigned to other bargaining unit members and their former hours were, in turn, contracted
No existing bargaining unit member has experienced a reduction in hours and there is no
vacancy to be posted or filled. The grievance should be denied.
The District maintains that only the subcontracting issue is arbitrable. It argues that
of filling Linda Briggs' position was only raised later, with the April 9 filing of the Peter
grievance, and was not properly pursued through the grievance procedure. 1/ I disagree.
March 27 letter, initiating the principal grievance, Mr. Alstead not only objects to the
of Briggs' hours, but also places the posting/filling issue into dispute, by stating:
You posted this vacancy, but decided not to fill this position and
sub contract this work, claiming
Article XVII Management Rights, allows you this latitude.
We're disputing this action and disagree
with your interpretation of Article XVII. This position
should be posted/filled and remain in the Bargaining
Mr. Alstead's testimony that he was informed by Trautt that Briggs' hours were being
was credible and was not disputed by the District. Thus, there is at least a reasonable
the Union was objecting both to the subcontracting of bargaining unit
work and the failure to fill Briggs' position once it had been posted. Inasmuch as there
is notice of
the posting/filling issue within the Union's initial grievance letter and in keeping with the
preference for avoiding forfeiture, I hold that the posting/filling issue is arbitrable.
1/ In its briefs, the Union concedes that the
Peter Thayer grievance is not arbitrable, but bases its argument
regarding the posting/filling issue on the March 27 grievance letter. Thus, the Thayer
grievance will be deemed
moot for the purposes of this award.
The Union's argument on this issue is predicated on the language of Article III,
which states, in paragraph 1:
All new and vacated positions shall be posted . . .
And which states in paragraph 2:
New positions and vacancies shall be awarded to the most
Provided, however, that before anyone is
hired from outside the bargaining unit, qualified
bargaining unit employees will be given preference.
The Union concedes that it is management's prerogative to determine the existence of a
argues that this is mandatory language requiring that once a vacancy is posted it must be
according to the method set forth. I disagree.
Absent limiting language in the contract, it is management's right to determine
vacancy exists and whether and when it should be filled even after positions have been
Elkouri and Elkouri, How Arbitration Works, 5th Edition, p.
723-24 (1997). Thus, in Computing
& Software, Inc, 61 LA 261, (Schreiber, 1973), the employer withdrew postings for
computer operator positions, resulting in a grievance from the Union on behalf of eligible
citing contract language similar to that at issue here. In denying the grievance, Arbitrator
The Union's argument cannot be accepted because it is based on a misconception of
of the contractual provision on which it relies. Thus, while Art. XV, Sec. 1 requires that
permanent vacancies as well as newly created jobs be posted, it does not limit management's
authority to determine whether "permanent vacancies" exist any more than it limits its
authority to determine whether there should be "newly created jobs. Id. at 267
Similarly, in R.C. Can Co., 52 LA 894 (Kesselman, 1969), Arbitrator Louis
Kesselman upheld the
Employer's action in withdrawing a posting after the previous incumbent in the position
to be returned to his former job, even though six other employees had already posted for the
position. In reviewing the relevant contract language, Kesselman stated:
2. Section IX Job Vacancies provides no definition as to
what a vacancy is or when it ceases
to exist nor does it prohibit the Company from changing its mind and deciding to withdraw a
sheet on its determination that there is no vacancy to be filled.
3. Paragraphs 1 and 4 of Section XI, cited by the Union as a
positive statement of Company
obligation, merely describe how a vacancy is to be filled and not
when or whether it must be filled.
Id. at 897-98.
Here, likewise, Article III, Section 5, does not define the term "vacancy" nor does it
indicate that it
is established by posting. Superintendent Trautt testified that Briggs'
position was immediately
posted in order to expedite the process should the Board have ultimately decided to fill it, but
at the time it was considering several options. On its face, this does not appear to have been
unreasonable course of action. Ultimately, the Districtdecided to fill
Briggs' hours by reassigning
other bargaining unit employees. This power is reserved to the District under Article XVII,
2, Paragraph 2, and the Union does not dispute it. For the foregoing reasons, therefore, I
despite the posting, the District was not required to fill Linda Briggs' position under the
of Article III, but was within in its rights to reassign other employees in the fashion that it
Article XVII, Section 1, Paragraph 4 of the contract permits the District to
". . . contract out
for goods and services provided no present bargaining unit employee is reduced in
hours or placed
on layoff as a result thereof" (emphasis added). As the arguments put forward by
the parties reveals,
the wording of this provision requires careful consideration, and the success or failure of the
grievance depends upon its meaning. There is no dispute that no employee experienced a
was reduced in his or her regular work hours as a result of the District's subcontracting of
cleaning hours at the Primary School. What is at issue is the loss of overtime hours which
occasionally when one or more of the regular evening cleaners was unavailable for work.
The Union argues in this regard that the use of the term "hours" in Article XVII,
Paragraph 4, is not limited to regular work hours, as defined in Article VI, Section 2,
overtime hours, as well. It contends that the fact that the term is unqualified requires the
interpretation. Thus, while the regular subcontracted hours,
themselves, were not removed from any bargaining unit members, the effect of
eliminating the possibility of overtime makes the action impermissible. The District
contends, to the
contrary, that "hours" should be restricted to the meaning ascribed to it in Article VI,
Section 2, that
of regular hours. On its part, the District points out that the contract does not guarantee
and that the provision is limited in scope to the protection of the hours of existing employees,
bargaining unit, in general. In support of their positions both parties admonish the Arbitrator
observe the restrictions in Article IV, the grievance procedure, which denies the Arbitrator
". . . to add to, subtract from, or modify this Agreement in any way."
While both parties raise interesting semantic points, in my view, it is not necessary to
them in order to decide the issue. The language of the contract ties the limitation on
directly to an actual reduction in hours to an existing bargaining
unit member. Whether the hours lost
are characterized as "regular" hours or "any" hours, the Union has the burden of establishing
someone has experienced an actual loss of work due to the subcontracting. This, the Union
The testimony established that in the past when extra evening hours at the Primary
became available, the District's first recourse was to use a substitute from outside the
and that overtime was only offered when a substitute could not be obtained. According to
Coddington, in such cases the overtime hours were offered to bargaining unit members
McClurg or Linda Briggs. Briggs had previously resigned and, therefore, cannot have been
by the action. McClurg testified that he continues to work overtime when opportunity arises,
could not state that his aggregate overtime hours have been reduced by the subcontracting.
Superintendent Trautt testified that McClurg had complained in the past that more substitutes
needed because he did not wish for as much overtime as was being offered and, as a result,
work was not getting done, which McClurg did not dispute. Finally, Coddington further
he was unaware of any bargaining unit member who had actually lost overtime as a result of
District's action that the basis for the grievance was the lost opportunity for
overtime. To be sure,
the reduction in overall overtime availability could potentially negatively affect another,
bargaining unit member, one perhaps who lost overtime previously available, but now
McClurg by virtue of his seniority, but the record does not support such a conclusion. On
therefore, I cannot find that the District's subcontracting of the evening cleaning at the
Schoolresulted in an actual, loss to any employee and
thus constituted a violation of the contract.
The Union relies heavily on the decision in City of Oshkosh, Case 213, No. 49934,
MA-8109, (Gratz, 7/18/95) in support of its position, but I find that that decision is
the case at hand. In City of Oshkosh, the employer had subcontracted extra city bus runs,
as "trippers," which were separate from regular bus runs, but which were bid upon
the same time and in the same way as the regular runs. The "tripper" runs involved
two hours per day of extra work for the successful
bidders. In upholding the grievance, Arbitrator Gratz rejected the restrictive definition
as being only "regular" hours urged by the employer, there as here, and found that he was
from inferring the qualifier by the same contract restriction imposed upon this arbitrator. He
that, inasmuch as no "tripper" run had ever failed to be bid upon, it followed that the
removal of two
such runs directly eliminated the work for two employees. This finding was supported by the
introduction of actual wage information showing a drop-off in pay for a bargaining unit
had previously regularly driven "tripper" runs, subsequent to the subcontracting.
Here, the subcontracting followed the resignation of a bargaining unit employee.
reassignment of other employees, the subcontracting did not remove "regular" hours from
employee, although the bargaining unit, as a whole, did lose the hours represented by the
cleaning work. The subcontracting provision, however, does not protect a fixed amount of
the bargaining unit generally, but only the actual hours of its members. Thus, it does not
District from subcontracting and thereby replacing bargaining unit positions through attrition,
was the ultimate result here. In City of Oshkosh, there was no corresponding resignation,
the result was a reduction of available work for the same number of employees, a clearly
situation. Further, the overtime work at issue here is qualitatively and quantitatively
from the "tripper" runs in City of Oshkosh. The tripper runs were regular, involved a
amount of extra hours, and were competitively sought for by the bargaining unit members.
overtime in question was described by witnesses on both sides as speculative and sporadic.
it is at least questionable as to whether the evening overtime was generally desired by the
of the bargaining unit, outside, perhaps, McClurg. McClurg, however, as previously noted,
not say that his overall overtime has been reduced, only that he is no longer offered evening
In sum, therefore, the circumstances in City of Oshkosh are distinct from those here and do
compel the same result.
The Union also cites School District of Beecher-Dunbar-Pembine, Case 30, No.
MA-10441 (Greco, 8/30/99), in support of its position that the District may not subcontract
bargaining unit work. I find that Arbitrator Greco's rationale in that case is consistent with
although the result was different due to a distinctly different fact scenario. In that case, the
laid off two bargaining unit aides due to economic difficulties, while continuing to retain the
of two subcontracted aides from CESA 8. There, the arbitrator found that the District's
reducing the bargaining unit through layoff, while continuing to subcontract work that could
been done by bargaining unit members, had a chilling effect on the job security of the
members, which the subcontracting language in the contract had been intended to protect.
employees actually lost their jobs, or had hours reduced, due to the preference given the
subcontractors. That is distinctly different from the situation here, and, absent an actual
lost hours or employment by a current bargaining unit member as a result of the
cannot find the District in violation on this record.
For the reasons set forth, and based upon the record as a whole, the undersigned
The Union properly raised the issue of the posting and filling
Linda Briggs' former position
in its initial grievance and the issue is, therefore, arbitrable.
The District did not violate the collective
bargaining agreement by failing to fill the position
vacated by Linda Briggs.
The District did not violate the collective
bargaining agreement by subcontracting with a
private vendor for evening cleaning services at the Primary School.
The grievance is denied.
Dated at Eau Claire, Wisconsin, this 20th day of December, 2001.
John R. Emery, Arbitrator