Milton Educ. v. Milton Bd. of Sch. Trustees, 01-018.

Decision Date30 April 2003
Docket NumberNo. 01-018.,01-018.
Citation824 A.2d 605
PartiesMILTON EDUCATION AND SUPPORT ASSOCIATION v. MILTON BOARD OF SCHOOL TRUSTEES.
CourtVermont Supreme Court

Present AMESTOY, C.J., DOOLEY, JOHNSON and SKOGLUND, JJ.

ENTRY ORDER

¶ 1. The Milton Board of School Trustees (the school board) appeals a decision of the Vermont Labor Relations Board (the VLRB) holding that the school board committed an unfair labor practice when it contracted out custodial services formerly performed by employees without first bargaining with the Milton Education and Support Association (the association), the representative of the employees. The school board argues that the VLRB erred in not deferring to a determination of the arbitrator, acting pursuant to a collective bargaining agreement between the school board and the association, that the school board had the inherent management right to contract out the custodial work. We affirm.

¶ 2. This is the second time that this case has been before us. In Milton Education & Support Ass'n v. Milton Board of School Trustees, 171 Vt. 64, 70-74, 759 A.2d 479, 483-86 (2000), we ruled that the association's unfair labor practice complaint to the VLRB, claiming that the school board failed to bargain before deciding to contract out its custodial work, should not have been decided until the VLRB awaited the result of the arbitration process provided for in the parties' collective bargaining contract. Consistent with that decision, the matter was submitted to arbitration.1

¶ 3. In his decision, the arbitrator found that the labor contract between the parties contained a management rights section, but that the section did not address the "particular issue of subcontracting of bargaining unit work." The arbitrator further amplified that the contract "neither explicitly provides for nor prohibits the subcontracting of bargaining unit work." He noted that the issue of whether the school board "had a statutory obligation to bargain over the underlying decision to subcontract" was not before him. He decided, however, that an employer could contract out bargaining unit work, on the following rationale:

Arbitrators have generally held that subcontracting is an inherent managerial right which flows out of an employer's power to dictate the means and manner of operations, including the promotion of efficiencies. Where there is no express limitation on that right—by job category, impact, duration, or other criteria— an employer is free to subcontract so long as it does so in good faith, for reasonable, legitimate business objectives. Subcontracting cannot be utilized to simply circumvent express negotiated provisions, like the wage scale, nor may it be employed to undermine the bargaining unit. Arbitrators have looked [to] a number of factors and applied a balancing test, weighing the operational justifications with the potentially adverse impact on the bargaining unit as a whole.

Finding that the motivation for the contracting out of the custodial services was "the provision of high quality services at a lower overall cost," the arbitrator held that the school board did not violate the collective bargaining agreement in contracting out the custodial services.

¶ 4. On remand from our first decision, the VLRB held that the arbitrator's decision could resolve the unfair labor practice proceeding only if the arbitrator clearly decided the unfair labor practice issue. The VLRB concluded that the arbitrator did not because he grounded his decision on inherent management rights rather than the provisions of the collective bargaining agreement, and did not address whether the school board was required to bargain before contracting out the custodial work. The VLRB went on to conduct its own independent analysis of the management rights provision of the collective bargaining agreement and concluded that the agreement did not contain a conscious and explicit waiver of the right to bargain over subcontracting of bargaining unit work. The VLRB concluded that "[m]ore specific language than the general statement of powers present here is needed for us to conclude that a union waived its right to bargain over such a crucial matter as subcontracting."

¶ 5. The VLRB also ruled that if it were required to defer to the arbitrator's decision the result would be "repugnant to the purposes and policies of the Municipal Employee Relations Act" because the Act does not make subcontracting an inherent managerial right. Specifically, the VLRB held that the school board was required to bargain with respect to wages, hours and conditions of employment under 21 V.S.A. § 1725(a). It concluded that contracting out fit within the definition of "wages, hours and other conditions of employment" as contained in 21 V.S.A. § 1722(17) and was not...

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  • In re Cole
    • United States
    • Vermont Supreme Court
    • May 2, 2008
    ...when interpreting a collective-bargaining agreement. See Milton Educ. & Support Ass'n v. Milton Bd. of Sch. Trs., 2003 VT 42, ¶ 8, 175 Vt. 531, 824 A.2d 605 (mem.) (an arbitrator interpreting a collective-bargaining agreement may examine past practices); Burlington Area Pub. Employees Union......

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