It has long been the position of public employer representatives in the State of Minnesota that there is no such thing as “bargaining unit work.” Through PELRA, employers are provided the discretion to assign the employees they feel most appropriate to accomplish a task in the way the employer deems appropriate. In fact, Minn. Stat. §179A.13, subd. 3(9) makes it an unfair labor practice for a union to force or require “an employer to assign particular work to employees in a particular employee organization or in a particular trade, craft, or class rather than to employees in another employee organization or in another trade, craft or class.”
However, unions sometimes claim a contract violation for management assigning work that they feel belongs to its bargaining unit members to a group of employees outside of its unit. This was the case in The St. Paul Federation of Educators and Independent School District No. 625 (Award). In that case, a Teaching Assistant (TA) in the Teamsters bargaining unit, already working within the district, who had been certified in American Sign Language (ASL) and was skilled in working with students with disabilities was assigned to work in a special education classroom with severely disabled children, specifically with a student who needed an ASL interpreter. The Union grieved this decision, alleging that this was work typically assigned to Educational Assistants (EAs), a higher paying position requiring more credentials, in the Federation.
Despite the fact that a TA was temporarily working in the position prior to it being permanently filled, the union provided evidence that the district had typically assigned this work to EAs. The union also brought forth evidence that the TA who was assigned the job had the knowledge, skills and abilities of someone working in an EA position, but was only paid at the lower TA level. According to the arbitrator, the union produced evidence of 10 years of past practice showing that EAs, and not typically TAs, did ASL work when it was required.
However, the district had three things working for it: the TA was not represented by the Federation; a state law that seemingly forbids the concept of “bargaining unit work” in public employment and grants employers the discretion to select and direct employees; and the lack of any contract language requiring ASL work to be assigned to EAs in the district.
In disregarding the employer’s first argument, Arbitrator Finkelstein found that the grievance was arbitrable despite the TA not being a member of the unit because the union filed the grievance on behalf of the bargaining unit as a whole “to protect its bargaining unit work.”
The arbitrator dealt with the employer’s state law and lack of contract language simultaneously, relying on the “unusual facts presented” in the case. Arbitrator Finkestein stated, “Even without express bargaining unit work language, a union can establish a violation of the Labor Contract given the right fact pattern…it has long been accepted by the parties that when ASL was required, the work was done by an EA.” The arbitrator used the evidence presented to show that an EA was the more appropriate classification to perform the ASL work. The arbitrator held that the employer violated the labor agreement “by not following the established practice, by not following what was done (in previous similar situations), and by not consulting with the building management or staff to see what was actually needed [when determining whether to fill a need with a TA of EA position].”
In an interesting turn of events, by the time the grievance was resolved, the employee who was previously doing the work as an TA was promoted to the EA position, and was already being paid at a higher level. Therefore, the only remedy provided by the arbitrator was for the parties to negotiate a backpay arrangement for the employee on their own.
This is a difficult decision for employers. Here, the employer had a fully-qualified employee performing the work that needed to be done, but was told that the assignment of that employee was still inappropriate. Employers in the State of Minnesota have the right to direct the work of their employees, because it is the employers who are ultimately responsible for the work product created by those employees. To be told otherwise by a third party makes it incredibly difficult for an employer to efficiently manage its workforce.
As always, there is never a certain outcome with grievance arbitration. If you, or your organization, need assistance in navigating the tenuous grounds of the arbitration process, contact the Wiley Law Office, for labor experience that works.