BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
R.W. MILLER & SONS
TEAMSTERS LOCAL UNION NO. 43
For R. W. Miller & Sons, Inc., Attorney Daniel D. Barker,
Melli, Walker, Pease & Ruhly, S.C., 10 East Doty Street, Suite 900, P.O. Box 1664,
Madison, Wisconsin 53701-1664.
For Teamsters Local 43, Attorney John J. Brennan, Previant,
Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., 1555 North Rivercenter Drive, Suite
202, P. O. Box 12993, Milwaukee, Wisconsin 53212.
R. W. Miller & Sons, Inc., hereinafter referred to as "Employer" or
Teamsters Local 43, hereinafter referred to as "Union," are parties to a collective bargaining
agreement covering an initial period from June 1, 1999 through May 31, 2003. That
provides for binding arbitration of grievances as therein defined that may arise between the
On March 1, 2002 the Union filed a request with the Wisconsin Employment Relations
for a 5-person panel of WERC commissioners/staff arbitrators from which the parties could
a person to hear and decide the grievance that had arisen between the parties. Commissioner
Henry Hempe was selected by the parties from the panel provided and was subsequently
by said Commission to hear and decide said dispute. A hearing was held on May 23, 2002
transcript prepared of the testimony provided. On June 24, 2002, the Employer filed a
Reopen the Record for the purpose of inserting an affidavit. Absent an objection by the
motion is granted and the affidavit received. The Employer filed an initial brief received on
2002 and a reply brief received on July 15, 2002; the Union filed an initial brief received on
2002 and filed no reply brief.
The grievance herein is companion to another grievance (Case 3, No. 60951,
by the Union on behalf of the same grievant. By agreement of the parties, the grievances
consolidated for hearing purposes. However, the respective awards for each case are made
discussed in separate decisions by the arbitrator that conducted the hearing.
STATEMENT OF THE ISSUE
The Union proposed the following Statement of the issue:
Did the Company violate the labor agreement by failing to
the grievant to work for the
welding job that occurred on January 16, 2002? If so, what is the appropriate remedy?
The Company proposed the following Statement of the issue:
Did the Company violate the labor agreement when it did not
recall the grievant from layoff
to perform a small welding job? If so, what is the appropriate remedy?
I adopt the following Statement of the issue:
Did the Company violate the Labor
Agreement by failing to recall the grievant from layoff to
perform a welding job on January 16, 2002? If so, what is the appropriate remedy?
FACTS OF THE CASE
The Employer, R. W. Miller & Sons, Inc., is a road contractor engaged in road
that includes excavation, grading and asphalting. In winter months, the Company's business
have included hauling snow for the City of Lake Geneva.
The grievant, John Laskowski, has been employed by the Company for almost six
Laskowski is a crusher operator, but also performed some welding jobs from time to time
welding on trucks). In addition, Mr. Laskowski works on the blacktop plant and the wash
does whatever else is required to be done. He is sixth in seniority among Company
the month of January 2002 Mr. Laskowski was on layoff for the entire month.
In mid-January 2002, the Employer engaged an independent welding contractor, d/b/a
Welding, to weld a reinforcement plate on the cracked trunnion assembly of one of the
dump trucks. The trunnion assembly attaches the axle to the truck frame. The idea of
reinforcement plate to the existing trunnion assembly instead of replacing the entire assembly
from a mechanic employed by the Company, who also serves as the Union's shop steward.
mechanic (who has also done welding for this employer in the past and is senior to the
showed no reaction when Company President Jeff Miller told him that he was going to use
Welding to carry out the proposed welding.
Previously, in his denial of the grievance on this matter, Mr. Miller had written that
welding work was for only three hours ". . . and utilizing Mr. Laskowski to perform the
have cost in excess of $1,000 in benefits alone." He added, " I made an economic decision
total cost of their (Tom's Welding) invoice was just over $300."
At hearing CEO Miller did not deny that his decision was influenced by economics.
also stated his belief that the welding work involved was not simple work and needed to be
by an experienced welder. In addition, Mr. Miller also expressed safety and potential liability
if the work was not competently performed. He said that if the weld broke and the cracked
assembly failed under the stress of a fully loaded truck bed, the rear axle could come off,
the open road. Mr. Miller knew that Tom's Welding is a state-certified welding enterprise,
proprietor teaches a welding certification course in Walworth County and also tests aspiring
for certification purposes.
In 2001 the Employer had engaged Tom's Welding to build ductwork on the blacktop
as well as an extra bin that feeds material into the blacktop and had been favorably
the work Tom's Welding performed.
The grievant stated that six years before he had been a certified welder in structural
that he believes welding certifications run from year to year. At times Mr. Laskowski
has to do
welding on the crusher he operates. At other times, he's been directed off the crusher to do
welding when there is no other welder available to do it. Mr. Laskowski estimates that in
course of his duties he does some welding at least once a month. Sometimes, Mr.
work on welding projects for three or four days in a row; sometimes he might not weld for
three, or four weeks at a time.
Mr. Laskowski's application for employment with the Employer dated 6/4/95
he had 10 years of welding experience. There is no record of any current welding
certification of the
grievant in the State of Wisconsin.
Mr. Laskowski acknowledged that he had never done any welding on a trunnion
but has done some welding on truck frames. The grievant believes he was capable of
cracked trunnion assembly. The grievant further stated that the mechanic that had suggested
a reinforcement plate to the trunnion assembly had originally asked the grievant's opinion on
aspect of the proposed repair. The grievant said that on many occasions that mechanic had
him with respect to proper preparation for welding jobs.
In the past, the Employer has also subcontracted out other welding work that might
performed by bargaining unit members, including repairs to dump trucks, and welding on a
asphalt silo. In some instances some bargaining unit members were on layoff while the
being performed. There is no record of any Union objection to that subcontracting.
The welding repair work on the cracked trunnion assembly took Tom's Welding four
ARTICLE 3. RECOGNITION AND
. . .
Work Assignments. The Employer hereby assigns all
work involved in the operation
of the Employer's truck equipment during the operation, loading and unloading thereof of the
employees in the bargaining unit here involved. The Employer agrees to respect the
rules of the Union and shall not direct or require their employees or persons other than the
in the bargaining units here involved, to perform work which is recognized as the work of
employees in said units. This is not to interfere with bona fide contracts with bona fide
. . .
ARTICLE 21. HEALTH AND
1. Effective June 1,
1999, the Employer agrees to provide health and welfare insurance
benefits as provided and offered as settlement of this Agreement. The Employer agrees to
cost of coverage up to a maximum monthly premium of $447.65 per aggregate employee.
the 2nd, 3rd, and 4th years of this
agreement the maximum monthly premium amount will increase to
$516.85, $586.05 and $655.25 respectively. . . .
(A) . . .
(B) When an employee is laid of due to
lack of work, he shall receive benefits for the calendar
month following his layoff. The Company will notify the insurance carriers upon
employment or layoff so that such employee may be billed directly.
(C) Regular employees returning from
layoff will be eligible for coverage the first of the
month following return to work.
1. Effective June 1,
1999, the Employer shall continue to contribute to the Central
States, Southeast and Southwest Areas Pension und the sum of eighty-five dollars ($85.00)
for each employee covered by this Agreement, who has been on the payroll thirty (30)
. . .
Section 5. Contributions to
the Pension Fund must be made for each week on each regular or
extra employee, even though such employee may work only part-time under the provisions of
contract, including weeks where work is performed for the Employer but not under the
of this contract, and although contributions may be made for those weeks into some other
fund or health and welfare fund. Employees who work either temporarily or in cases of
under the terms of this contract shall not be covered by the provisions of this Section.
. . .
ARTICLE 31. GRIEVANCE
1. . . .
2. . . .
Section 3. . . . In the event
that the Employer's representatives and the Union's representatives
are unable to reach a decision resolving the dispute, either party may, within five (5) days
co-chairman of the Joint Grievance Committee in writing requesting arbitration in accordance
4. The parties agree an arbitrator shall be selected on application to the
Employment Relations Commission. If the Commission finds it necessary to appoint an
a member of the Commission, the losing party shall bear the full cost of the arbitrator. No
shall have the right to require arbitration, that right being reserved to the Union or Employer
Article 5. . . . The decision of
the impartial arbitrator on any matter submitted to it shall be final
and binding on all parties. . . .
POSITIONS OF THE PARTIES
The Union argues that Mr. Laskowski had been a certified welder and had done
truck frames for the Employer in the past. The Union contends that Mr. Laskowski's
experience and knowledge were widely known indeed, even the mechanic had
consulted him about
welding duties sometimes assigned to the mechanic. In fact, says the Union, the mechanic
consulted Mr. Laskowski about the very project that was farmed out to Tom's Welding.
The Union believes that Company President Miller's decision to subcontract the
repair of the cracked trunnion assembly was motivated by Mr. Miller's desire to avoid
month's worth of health benefits to the grievant under Article 21 of the Labor Agreement,
to the CEO's written denial of the grievance prior to the hearing. The Union does not give
to Mr. Miller's testimony at hearing that his primary concerns were safety and company
is the Union impressed by the Employer's contentions that Mr. Laskowski lacked sufficient
perform the welding task involved.
The Union believes that the grievant should be made whole for the four hours of
work of which he was deprived on January 16 and advocates a "make-whole" remedy that
wages, health benefits, and a pension contribution in accordance with the Labor Agreement.
The Employer contends that the grievance should be dismissed because the Union
prove that the welding work in question was within the Union's exclusive jurisdiction.
according to the Employer, the Union bears the burden of proof on work assignment cases.
The Employer cites arbitral precedent to the effect that a union has not established
jurisdiction of the work if it has not proved that only bargaining unit members
have performed the
disputed work in the past.
In this matter, says the Employer, Mr. Laskowski never testified that only bargaining
employees perform shop welding. But, the Employer continues, the testimony of Company
Miller establishes that the Employer often used welders that were independent contractors
the bargaining unit for various shop projects.
The Employer additionally argues that the Union offered no testimonial evidence
that welding work is recognized as unit work only. Welding work is only incidental to the
Employer's main business as a road builder, the Employer points out. Thus, urges the
it had negotiated away the right to send repair work to outside shops then the Labor
would expressly say so.
The Employer believes that a holding that the Union has exclusive jurisdiction over
specialty work would hamstring the Employer to the point where it could never use a
contractor if a unit member wanted to try his hand.
Moreover, says the Employer, there were good reasons for out-sourcing the welding
reasons based on safety and potential liability concerns. In this regard, the Employer notes
is no record of the grievant's current certification as a welder and finds the grievant's
to his own welding capabilities to be self-serving. The Employer asserts that it should not
rely on such claims when safety is at issue.
Finally, the Employer argues that even if the welding done on January 16 was
work, the grievant failed to prove that it would have been his work. The
Employer points out that
if the Employer had not out-sourced the welding work it is very likely that the mechanic
not on layoff, was senior to the grievant and had done welding in the past - would have
The Employer urges that the grievance be dismissed.
Employer's Reply to the Union's
The Employer points out that at no time does the Union claim it had exclusive
over welding work. Instead, says the Employer, the Union relies solely on the argument that
improper for the Company CEO to deny the grievance based on the CEO's view that it was
economical to use an independent contractor. The Employer contends that the Union
ignores the fact that Company President Miller's denial expressly states that the Company
Tom's Welding in the past for small welding jobs, to the economic advantage of the
In this case the Union contends that the grievant was improperly deprived of work
recognized as work of bargaining unit employees. In summary, the Union argues that
grievant is a competent welder, 2) that some welding is performed by bargaining unit
members, 3) that the grievant has performed welding work for the Employer in the
past, 4) that the
grievant had the requisite skill to handle the welding work the Employer out-sourced on
and 5) that the welding work is bargaining unit work because it is recognized as work of
The Employer correctly notes that in order to prevail the Union must show that the
work in question is within the exclusive jurisdiction of the Union. See Consolidation Coal
111 LA 587, 591 (Jenks, 1998). If the work is sometimes performed by bargaining unit
and sometimes performed by independent contractors engaged by the Employer it cannot be
considered bargaining unit work. See Sloan Valve Company, 68 LA 479, 480 (Cohen,
The facts in this case indicate a mixed practice as to assignment of welding work.
arguendo, that the grievant is a qualified welder, and further assuming that
the Employer has assigned
welding work to bargaining unit members in the past, it remains indisputable that the
also engaged independent welding contractors, such as Tom's Welding, to perform welding
for the Employer on more than one occasion.
Under this set of circumstances, it is immaterial that the Employer's decision to
the welding services provided on January 16 may have been influenced primarily by
considerations. Certainly, the Employer was aware that the grievant had welding skills or it
not have given the grievant welding assignments in the past. The Employer may or may not
been aware of the extent of those skills.
But since the Employer had a mixed practice that included obtaining welding services
both bargaining unit persons and non-bargaining unit persons outside the company, the
cannot be said to be within the exclusive jurisdiction of the Union. Put another way,
welding is sometimes assigned to members of the bargaining unit, because it is also at times
out-sourced without Union objection to persons outside the Company, it cannot be said to be
of bargaining unit members within the meaning of that phrase in Article 3.
The grievance is dismissed.
Dated at Madison, Wisconsin, this 25th day of September, 2002.