BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CHEQUAMEGON UNITED TEACHERS
SOUTH SHORE SCHOOL DISTRICT
(Frank Ray Grievance)
Mr. Barry Delaney, Executive Director, Northern Tier UniServ
- West, P.O. Box 988, Hayward,
Wisconsin 54843, appearing on behalf of the Union.
Mr. Henry Lamkin, District Administrator, South Shore School
District, P.O. Box 40, Port Wing,
Wisconsin 54865-0040, appearing on behalf of the District.
At all times pertinent hereto, Chequamegon United Teachers (herein the Union) and
Shore School District (herein the District) were parties to a collective bargaining agreement
the period July 1, 2001, to June 30, 2003, and providing for binding arbitration of certain
between the parties. On October 5, 2001, the Union filed a request with the Wisconsin
Relations Commission (WERC) to initiate grievance arbitration regarding the layoff of Frank
(herein the Grievant) from his bus driver position and requested the appointment of a WERC
member to arbitrate the issue. The undersigned was subsequently appointed to hear the
a hearing was conducted on February 7, 2002. The proceedings were not transcribed. The
and Union filed their initial briefs on February 21, 2002, and February 22, 2002,
Union filed a reply brief on March 13, 2002. The District filed a reply brief on April 15,
the Union filed a letter reply on April 19, 2002, whereupon the record was closed.
The parties stipulated to the framing of the following issues:
Did the District violate Article XII, Section C, of the
bargaining agreement when
it laid off Frank Ray?
If so, what is the appropriate remedy?
Additionally, the District proposed the following issue, to which the Union did not
Is the grievance timely under the provisions of Article XV,
Section B, Step 1, of the collective
As the issue of timeliness raises a procedural question potentially affecting the
of the merits of the case, the Arbitrator will address it.
A. The Board possesses the
sole right to operate the school system and all management rights
repose in it, subject only to the provisions of this Agreement. The Board shall have the sole
and exclusive right to determine the number of employees to be employed, to determine the
duties of each of these employees, the nature and place of their work, and all other matters
pertaining to the management and operation of the District, including the hiring, transferring,
demoting. suspending, or discharging of any employee. This shall include the right to assign
and direct employees, to schedule work, and to pass upon the efficiency and capabilities of
the employees, and the District may establish and enforce reasonable work rules and
The Board shall also have the right
to designate the District as a job site for students
participating in the JTPA program or other school-to-work and related programs, provided
the placement of students in such programs does not displace any bargaining unit employees,
and does not violate Article XVI and such program does not result in future lay-offs caused
by such program. No bargaining unit member will have to supervise more than one student
at a time and there will be no more than three students allowed per department during any
one semester or summer.
. . .
C. The District will not
subcontract any work previously done by the bargaining unit employees
when such subcontracting would result in lay-offs or reduction in the length of the regular
work week of an employee.
. . .
1. A grievance shall be
defined as any problem involving an employee's wages, hours or
conditions of employment or the interpretation, meaning or application of the provisions
of this Agreement or Board policies affecting wages, hours and working conditions.
2. The term "day" when
used in this Article shall, except where otherwise indicated, mean
scheduled employee working day; thus weekend or vacation days are excluded.
3. The term "grievant"
is defined as the employee, a group of employees with a common
complaint, or the CUT. The grievant is entitled to have a CUT representative.
Initiation and Processing:
or the Union shall, within fifteen (15) days after the grievant knew
or should have known of the occurrence giving rise to the grievance, submit a
written grievance to the superintendent.
superintendent shall give a written answer to the complaint within five (5)
days of the conference.
If the complaint is
not resolved within ten (10) days after receipt of the superintendent's
written response, the recommendations of both parties
shall be presented to the Board in writing and both parties
be present at a Board meeting
scheduled at a mutual agreeable time (within ten days after receipt of the superintendent's
response), for further explanation of their positions on the subject.
If it is not possible for both parties
to be present at a mutually agreeable time within ten
(10) days after receipt of the superintendent's response, the Board shall act upon the
grievance at their next scheduled meeting and make a decision based upon the written
recommendations supplied by the grievant and the superintendent. The Board within ten
(10) days of the meeting shall render a written decision to both parties.
If the Board's decision is considered to be
unsatisfactory, the Association shall, within ten
(10) days of receipt of the Board's decision, submit the grievance to binding arbitration. The
arbitrator shall be a staff member of the Wisconsin Employment Relations Commission
selected by the Commission. The cost of the arbitrator and the transcript (if one is needed
by the arbitrator) shall be borne equally by the parties.
Either party may make
arrangements for a transcript and supply a copy to the arbitrator
at their own cost. If in doing so, the other party wishes a copy of the transcript, a copy
will be provided, provided such requesting party pays for one-half of the cost of having
the transcript produced and copies made.
Unless specified time limits are extended
by mutual consent any grievance not processed
within such limits shall be considered resolved in accordance with the previous disposition.
Failure to file a grievance in a similar. past situation shall not be considered a bar to a
grievance filed upon subsequent recurrence of such conduct or situation.
According to Article XII, Section C, of the parties' collective bargaining agreement,
District is prohibited from subcontracting bargaining unit work when such subcontracting
result in a layoff or reduction in hours for a bargaining unit member. In 1977, at the time
bargaining unit was created, the unit contained six bus drivers. Over the years, however, as
bargaining unit drivers have retired or resigned, the District has gradually subcontracted bus
work. Since 1995, the District has contracted with local vendors to provide bus driving
being done by bargaining unit members.
The Grievant was utilized by the District as a substitute bus driver beginning with the
1991-92 school year. In the Fall of 1999, the Grievant was awarded a regular bus route.
Later that year,
the District acquired a specially designed handicapped-accessible bus, which was assigned to
The District had one student requiring special assistance due to disability and the Grievant
assigned a route which included this student, along with others. At the time, the District had
regular bargaining unit drivers, Ed Burhans and Eunice Laakso, in addition to the Grievant,
employing three subcontracted drivers under a contract with Jim's Auto, Inc. In the Fall of
Laakso resigned as a bus driver at the request of the District Administrator in order to
become a full-time
aide. At the same time, the District entered into a three-year contract with Jim's Auto, Inc.,
least four subcontracted bus routes for the 2000-2001, 2001-2002 and 2002-2003 school
years. Thus, for
the 2000-2001 school year, the Grievant and Burhans were the only bargaining unit drivers.
At the end of
the school year, the handicapped student graduated, eliminating the need for a
route. On July 26, 2001, the School Board voted to layoff the Grievant due to budgetary
which the Grievant grieved on July 30. The Board then issued a written notice of layoff on
which the Grievant acknowledged on August 16. For the 2001-2002school year, the District redistributed
the students on the bus routes and continued to employ Burhans and the four subcontracted
grievance proceeded according to the parties' contractual procedure, resulting in the instant
Additional facts will be referenced, as needed, in the discussion section of this award.
POSITIONS OF THE PARTIES
At the arbitration hearing, the District first raised the issue of timeliness. Step 1 of
grievance procedure requires filing a written grievance within 15 days of the date the
or should have known of the occurrence giving rise to the grievance. The District has been
subcontracting bus driving work for many years without violating the collective bargaining
agreement. The District argues that the Grievant should have filed the grievance when the
added a fourth subcontracted route in Fall, 2000, but it did not layoff the Grievant then, or
him that it intended to do so. The School Board voted to layoff the Grievant on July 26,
the grievance was filed four days later, well within the contractual timelines.
The case of School District of Beecher-Dunbar-Pembine, WERC Case 30,
MA-10441 (Greco, 8/30/99) is directly on point. The District had a subcontract agreement
CESA #8 to provide special education aides. Ten years after entering this agreement, the
off bargaining unit aides, while retaining the subcontracted aides, resulting in a grievance.
grievance was not filed until after the aides were laid off and was held timely.
The current subcontracting language was added to the contract in the 1979-82
bargaining agreement. Until the 1990s, the District only had one subcontracted bus route
and up to
nine bargaining unit drivers. In the 2000-2001 school year, the District had four
and two routes assigned to bargaining unit drivers, one being the Grievant. In 2001-2002,
continued the four subcontracted routes, but laid off the Grievant and then had only one
The subcontracting language gave the District the ability to subcontract certain work
complaint from the Union, but is not unlimited in scope. It protects bargaining unit members
assuring that they will not be laid off or have their hours reduced due to subcontracting.
arbitral precedents hold that job security is inherent in collective bargaining agreements and
contractual limitations on subcontracting exist for the purpose of protecting bargaining unit
employees from having their jobs eliminated by subcontracting. [Cf.; New Britain Machine
8 LA 720 (Wallen, 1947); American Sugar Refining Co., 36 LA 409 (Crawford, 1960);
County, Case A/P M-98-293 (Honeyman, 2/6/99); School District of
Beecher-Dunbar-Pembine, supra]. As was made clear by Arbitrator Greco in District of
Beecher-Dunbar-Pembine, critical question is whether, but for the subcontracting, the
employee would have been laid
off. Here, as there, the answer is no. The Grievant deserves to be made whole and to be
to his position.
The District had three subcontracted bus routes and two regular bargaining unit
a handicapped route in the 1999-2000 school year. The District subcontracted four regular
routes on August 25, 2000, and had only one regular bargaining unit route and a
in 2000-2001. The District was aware of this, but did not grieve the loss of the bargaining
until July 30, 2001. The Union should have grieved the loss of the route at the time it was
subcontracted when Eunice Laakso resigned her position to take a lower paying position as
It did not do so and thereby failed to meet the timeline required by the contract.
The District's action did not violate the contract. Article XII, Section C, does not
the District from subcontracting bargaining unit work. It only prohibits subcontracting when
in a reduction of hours or layoff to a bargaining unit employee. The District entered into a
bus driving subcontract in August, 2000, with no resulting layoffs. It has done so for years
objection from the Union.
In this case, the Grievant was hired in 1999 specifically to drive a handicapped bus
meet the needs of one handicapped student and to transport a small number of other students
nearby, which was known and admitted by all the Union witnesses. The handicapped student
graduated in 2001, eliminating the need for the route. The route was eliminated, not
and the bus has been transferred to another district. Had the District subcontracted the
route, the Union would have a valid complaint, but such is not the case. The Grievant was
a specific purpose, which no longer exists, and the route, the bus and the driver are no
by the District. This does not justify a grievance and the case should be dismissed.
The Union in Reply
The District's argument that the grievance is untimely is without merit. The bus
position eliminated in the 2000-2001 school year had previously belonged to Eunice Laakso.
had previously worked as a bus driver and an aide, with the two positions adding up to eight
of work. In 2000, the Superintendent asked her to work full-time as an aide, to which she
resulting in her voluntarily cutting back her driving to one athletic run of about one-hour per
She continued as a full-time aide in the 2001-2002 school year. The reduction of her hours,
therefore, was voluntary, and not the result of subcontracting. Since neither Laakso, nor the
Grievant, had experienced a layoff or reduction due to subcontracting in 2000, therefore,
no basis for a grievance at that time. Once the Grievant was laid off in July, 2001, and the
continued to subcontract bus driving work, the grievance was filed within 15 days and is,
The District's past multi-year subcontracting agreements did
not result in layoffs or reductions
for bargaining unit members and so were not grieved. The question here is whether the
would have been laid off but for the subcontracted work and the answer is no.
The District tried to draw a distinction by arguing that the Grievant was only hired to
the handicapped route and that when the need for the route disappeared so did the position.
is that the Grievant was driving in the 1999-2000 school year before the handicapped student
assigned to him. Further, of the twelve students assigned to the Grievant, nine were
the route of a subcontracted driver after the Grievant was laid off. Thus, the route continued
after the Grievant was laid off. The District's distinction does not have merit. Bus driving is
driving and one route is the same as another. Arbitral precedents support the view that if
are eliminated bargaining units members are entitled to positions held by subcontractors for
they are qualified.
Contrary to the District's position, a finding for the Grievant would not prevent the
from subcontracting in the future. The District has subcontracted in the past without
the Union and may do so in the future. Only it may not subcontract when to do so will
result in a
layoff or reduction of hours to a bargaining unit member. That is what it did here and the
should be sustained.
The District in Reply
School District of Beecher-Dunbar-Pembine can be distinguished from the instant
There, the District acknowledged that the work was not eliminated, but redistributed. Here,
position ceased to exist. Once the handicapped student graduated, the need for the route
disappeared. Further, the Beecher-Dunbar-Pembine award does not address the fact that it
the elimination of the need, not the subcontracting, that "resulted" in the layoff here. The
routes were larger bus routes. The Grievant had a limited term small bus route made
the needs of one student and made superfluous by the graduation of that student. The
subcontracted routes was the same in 2001-2002 as it had been in 2000-2001.
According to Elkouri and Elkouri, How Arbitration Works,
5th Edition, 1997, the word
"result" should be given its usual and ordinary meaning. Doing so leads to the conclusion
Grievant's layoff did not result from subcontracting, but from loss of the need for his
interpret it otherwise would lead to a harsh, absurd, or nonsensical result, because the
be unable to enter into multi-year contracts unless it could somehow read the future and
in advance whether the need for a position might end. Were that to occur, the District
to break its contract with the vendor rather than layoff a bargaining unit employee and incur
substantial cost in equipment and operations. The arbitrator must also apply the rule of
arrive at an equitable result which gives neither party an unfair advantage. It is unreasonable
interpret the contract in such a way that the District must break a multi-year contract with a
vendor in order to preserve a position for an employee who was hired specifically to fill a
for a limited term once the need ends. To do so would mean that in the future the District
bargaining unit employees to fill limited term bus driving positions because they would then
to require the District to give them a previously subcontracted position once the need for
were hired disappeared. Thus, to protect itself, the District would always be required to
short term work in the future rather than offer it to bargaining unit employees. For the
reasons the grievance should be dismissed.
The Union in Rebuttal
The District raises new arguments in its reply brief and cites facts which are not in
The District claims that the Grievant was hired to fill a specific need for a limited
term, but there is no evidence to support this. The evidence is that the Grievant was
hired to drive
a bus, nothing more. The fact that he was assigned a handicapped route is irrelevant. The
also contends that the Grievant was hired after the District entered into a multi-year
guaranteeing four routes to a private vendor. In fact, the Grievant was hired on November
whereas the subcontract agreement wasn't entered into until August 25, 2000.
Step 1 of the grievance procedure states, in subparagraph a:
a. The employee or the Union shall, within fifteen
(15) days after the grievant knew or should
have known of the occurrence giving rise to the grievance, submit a written grievance to the
. . .
The grievance was filed on July 30, 2001. In arguing that the grievance is untimely,
identifies the initiation of the subcontracting agreement on August 25, 2000, as the
giving rise to the grievance, thereby requiring the grievance to have been filed by September
in order to be timely. The Union, on the other hand, maintains that the "occurrence" was
Board's decision on July 26, 2001, to lay off the Grievant, which would set the grievance
at August 10, 2001.
If subcontracting, per se, were the issue, the District would have a
stronger argument, but it
is not. As the contract language and the actions of the parties over many years establish,
nothing intrinsically wrong with subcontracting so long as it does not result in the layoff or
in hours of bargaining unit employees. Thus, although the contract was entered into in
there was nothing to grieve until the Grievant was laid off in July, 2001. From the District's
perspective, a grievance filed in August, 2000, over action it might take in the future
Grievant due to the subcontracting agreement might have seemed premature at the time.
Accordingly, the occurrence giving rise to the grievance is that point at which the District's
affects the Grievant. In this case, that is when the School Board determined to lay the
The grievance is timely.
The pertinent contract language is contained in Article XII, Section C:
C. The District will not subcontract any
work previously done by bargaining unit employees
when such subcontracting would result in lay-offs or reduction in the length of
work week of an employee. (Emphasis added.)
As the Union points out, this language serves the interests of both parties. From the
perspective, it establishes the right of the District to subcontract services from private
without objection from the Union, so long as bargaining unit members are not negatively
For the Union members, it protects their jobs from being eliminated or reduced in order to
out the work privately. With respect to this last point, it is notable that Article containing
provision is entitled "Job Security."
The District maintains, in effect, that the Grievant was not laid off as a "result" of
subcontract agreement. In this regard, it argues that the Grievant was hired for the limited
of driving a specific handicapped bus route and it was the elimination of that route when the
handicapped student graduated, not the subcontracting of other bus routes, that caused the
layoff. For a number of reasons, I cannot agree.
First, there is nothing in the record that supports the District's underlying premise
Grievant was hired for a limited term or a limited purpose. The Grievant's uncontested
was to the effect that he was hired to drive a regular bus route at the beginning of the
school year, but that the need for the handicapped route, which was eventually assigned to
not arise until later in the year. There is no testimony that the Grievant was hired as
than a regular bus driver, nor do the School Board minutes noting the offer a contract to the
(Joint Ex #26) make any such distinction. It may be that the District viewed the Grievant as
term employee not protected by the language of Article XII, Section C, but, if so, it was
upon it to make this clear to the Union and the Grievant at the time of his hire and it did not
Thus, while the District may argue for the drawing of such a distinction, it is not supported
evidence and I can only conclude from the record that the Grievant was hired as a regular
The District argues, in the alternative, that the Grievant was covered by the language
Article XII, Section C, but only with respect to the handicapped bus route. Thus, if the
off the Grievant and then subcontracted the handicapped route, the District concedes the
would have merit, but since the handicapped route was eliminated and only regular routes
subcontracted, the grievance must fall. Here again, however, there is no evidence of a
distinction between bus routes. The recognition clause in Article I refers only to "bus
without distinction. Further, Appendix A sets the wage rates for bus drivers and, again,
distinction with regard to a handicapped route. In fact, it categorizes the rates according to
runs," "athletic runs" and "extra runs." It is established in the testimony that the Grievant's
a "regular run" and he was paid accordingly. Thus, to the extent it supports either position,
contract language must lead to the conclusion that the Grievant was a regular bus driver with
same contractual rights and protections as any other. Finally, the seniority list (Joint Ex. #7)
Grievant as a "bus driver," not a handicapped bus driver, and ranks his seniority vis a vis
without regard to which routes they drive. Thus, I conclude that the handicapped route
constitute a distinct category, but was merely one of number of regular routes distinguished
the fact that the driver used a smaller, specially equipped bus, which was only capable of
accommodating a small number of students.
The District further contends that the Grievant's layoff was not occasioned by the
because his position continued for nearly a year after the subcontract agreement was made
precipitating event was, in fact, the graduation of the handicapped student, thus eliminating
for the position. In this regard, the District also argues that the use of the word "result" in
contract language compels the conclusion that the subcontract and layoff must be cause and
to constitute a contract violation and they were not. I find this situation analogous to that
in School District of Beecher-Dunbar-Pembine, WERC Case 30, No. 56266, MA-10441
(Greco, 8/30/99), cited by the Union. In that case, with similar contract language, the
off two teacher aides while retaining two subcontracted aides. The employer argued, as
the subcontract preceded the layoffs by a long period of time, in that case ten years, and was
therefore, the cause of the layoffs. Arbitrator Greco, however, focused, instead, on the fact
subcontracting, by its very nature, often results in work which bargaining unit employees are
to do being done by contract employees. In this regard, he noted
. . . unless expressly stated otherwise, a subcontracting proviso
by its very nature is meant to
protect bargaining unit employes from being laid off or having their hours reduced if
unit work for which they are qualified to perform is being performed by non-bargaining unit
employes. (Emphasis added.)
There is no dispute that the Grievant is qualified to drive any bus route currently
served by the
subcontractor, thus the cruxof the case is whether the Grievant's layoff
would have occurred but for
the subcontracting of bus driving work to a private vendor. Put another way, would the
have been laid off if the subcontract did not exist? The evidence leads to the inescapable
that he would not have been laid off.
The District attempts to distinguish Beecher-Dunbar-Pembine in that there the aides'
was not eliminated, but redistributed, whereas here the handicapped route, and thus the
work, ceased to exist. I do not find this a meaningful distinction. Nine of the twelve
students on the
Grievant's route remained in the 2001-2002 school year and were reassigned to different
Thus, the work didn't cease to exist, as the District suggests, it was merely redistributed,
accepts the premise that transporting a handicapped student was a discrete position within the
bargaining unit, which, as previously stated, I do not.
The District also raises arguments with respect to methods of contract interpretation,
that sustaining the grievance would lead to an unreasonable result, in that it would hinder the
District's long range planning and preclude the District from entering into multi-year
unless it could foresee no need for the reduction of positions during the term
of the agreement. The District's alternative is to subcontract all limited term work to
limited term bargaining unit employeefrom demanding a previously
subcontracted position once his
term of employment ends. That is not what occurred here. As previously noted, the
not a limited term employee. Had the District chosen to define his employment in those
terms it could
have done so and bargained with the Union over the implications once the job ended, but it
Further, the Grievant was employed when the contract was entered. Presumably, the District
at the time that the handicapped student would graduate the next spring, eliminating the need
handicapped bus route. Nonetheless, it added a fourth route to the subcontract knowing full
the Grievant, a bargaining unit member, would be available to drive a regular route in
Thus, the District was not "sandbagged" by the Union, but was victimized by poor planning.
unquestionably inconvenient for the District to have to renegotiate its subcontract in order to
with the collective bargaining agreement, but it is a problem of the District's creation and it
solve it at the expense of the Grievant.
For the foregoing reasons and based upon the record as a whole, I hereby enter the
The grievance was filed within fifteen days of the notice of layoff as required by
Section B, of the collective bargaining agreement and is timely.
The District violated Article XII, Section C, of the collective bargaining agreement
laid off Frank Ray.
The District shall forthwith award Frank Ray a regular bus route and an athletic bus
and credit him with seniority accrued during the period of his layoff. The District shall
make Mr. Ray whole by paying him backpay and any other benefits to which he is
entitled from the first day of the 2001-2002 school year, less any monies earned from other
employment during the layoff, which would not have been earned but for the layoff.
The Arbitrator will retain jurisdiction of this award for a period of sixty (60) days to
any questions regarding implementation of this Award.
Dated at Madison, Wisconsin this 7th day of November, 2002.
John R. Emery, Arbitrator