Animal Subcontracting – Getting the Union’s Goat!

By Mark J. Swerdlin & Fiona W. Ong - Shawe & Rosenthal LLP

August 10, 2017

Last year, Fiona’s sister told her that a herd of goats, complete with a  goat herder, had moved into the park next to her house. They were brought in to clear certain park areas of overgrown vegetation. What a charming, effective, and environmentally-friendly solution! Apparently Western Michigan University had the same thought, because it also brought in goats to clear areas of the campus. But a union has decided to butt in and has filed a grievance against the University, claiming that the goats were performing “union work!” (We can see it now, brave goats crossing a picket line to get to their jobs!)

As reported by the Grand Rapids Patch, the University brought the goats in to clear a 16-acre lot. They are an appealing and logical option for a number of different reasons:

•    They eat everything, including poison ivy, without the same issues that humans may have in dealing with certain vegetation and without requiring the use of herbicides (that are potentially dangerous to human health and the environment).

•    They can cover uneven areas that are not conducive to the use of machinery.

•    They don’t disturb the ground in ways that facilitate the sprouting of seeds.

•    They will work 24 hours a day (without overtime pay or smoke breaks).

•    And, they are a significant cost savings – a university horticulturalist overseeing the project, Nick Gooch, told the Patch that it costs about $1,618 to clear a quarter acre using machinery, labor, and herbicides, but apparently the goats would cut $1,280 from the costs (i.e. they would cost about $338 for the same work. So, to do the math on a 16 acre lot: traditional human methods would cost $103,552 while the goats would cost $21,632 – a savings of almost $82,000!!!).

But the union, AFSCME Local 1668, says that farming out the work to goats violates its collective bargaining agreement (CBA) with the University. Apparently, the job of cutting grass is a union job covered by the CBA, and therefore, according to the union, this work should have gone to union members rather than being subcontracted out to goats. The University, however, says that the goats aren’t cutting grass, but rather are removing weeds and vegetation overgrowth—work apparently not covered by the CBA.

While we have not seen the grievance or the CBA, the outcome of the grievance will likely turn on the actual language in the CBA and the parties’ past practice. Does the CBA spell out specific duties that grounds staff are to exclusively perform?  Is there language that defines landscaping work or grass cutting?  And, if so, does landscaping or cutting grass have to be done by employees with machinery?  Does the CBA mention weed removal or other tasks?  What about past practice—has the University used non-union personnel for this task previously, and if so, has the Union grieved it?   Even if the work is deemed to be union work, does the CBA contain subcontracting language and, if so, does the subcontracting (to goats) comply with such terms? The CBA may even discuss where temporary workers are permitted, but we’re not sure if goats would be deemed to be temporary labor!

In all seriousness, this situation emphasizes the importance of focusing on the language in the CBA during collective bargaining negotiations. The employer should think about how to retain the flexibility to incorporate technological (or biological) developments in the industry in the future. The employer should also pay close attention to subcontracting rights under the CBA.

And lest anyone start taking up the cause for amending civil rights statutes and wage/hour laws to protect goats, the University is not contracting with the goats directly.  Believe it or not, there is apparently a thriving business out there of companies supplying goats and goat herders for this purpose.  No kidding!