BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DOOR COUNTY COURTHOUSE
LOCAL 1658, AFSCME, AFL-CIO
Mr. Gerald Ugland, Staff Representative, Wisconsin Council 40,
appearing on behalf of the Union.
Godfrey & Kahn, S.C., by Mr. Dennis Rader and
Mr. John Haase, appearing on behalf of
The Union and the County were parties to a collective bargaining agreement which
provided for final and binding arbitration of grievances. Pursuant to a request for
Wisconsin Employment Relations Commission appointed the undersigned to decide a
A hearing, which was transcribed, was held on April 24, 1997, in Sturgeon Bay, Wisconsin.
the hearing, the parties waived the contract provision (Article IV, B and C) which provides
a decision will be rendered by a three-member arbitration board. 1 After the hearing, the parties
filed briefs and the County filed a reply brief, whereupon the record was closed on July 23,
Based on the entire record, the undersigned issues the following Award.
The parties stipulated to the following issue: 2
Did the Employer violate the collective bargaining agreement
when it filled the deputy
clerk V position in the County Clerk's office in 1996? If so, what is the appropriate
The parties 1995-96 collective bargaining agreement contained the following pertinent
ARTICLE 6 - SENIORITY
A. Definition: It shall
be the policy to recognize the seniority principle. Seniority time
shall consist of the total calendar time elapsed since the date of the original employment with
Employer to a position in the bargaining unit, provided, however, that no time prior to
for just cause or quit shall be included, and provided that seniority shall not be diminished by
temporary layoffs or leaves of absence or contingencies beyond the control of the parties to
No seniority credit will accrue
while an employee is on leave of absence including time
spent in any elected position within or without county government. This provision does not
to medical leave, maternity leave, or disability leave. Incumbent employees in the
unit, following settlement of the original contract, shall have full seniority credit for their
courthouse and associated departments service so long as said service was uninterrupted by a
termination of employment for whatever reason.
Fringe benefit accumulation shall
be in accordance with the length of continuous County
Posting: Definition of a vacancy shall include job openings created either
employe leaving the position or a newly created position.
Notice of vacancies shall be posted
within five (5) working days after the vacancy occurs
in each department for a minimum of three (3) working days. The notice of posting shall
the following minimum information: wage rate, hours of work, department, position title,
description and qualifications. Any employee desiring to fill any such posted vacancy shall
application in writing at the Human Resources Office. After the conclusion of the posting
the application shall be opened at the Human Resources Office in the presence of a
of the Union and a representative of the Executive and Personnel Committee, or its designee,
a time to be mutually agreed upon.
Whenever any vacancy occurs, it
shall be given to the senior qualified employee within
seven (7) work days after the completion of the posting period.
In late 1994, the person holding the deputy clerk V position, Corrine Mueller,
her intention to retire after 30 years in the position. Upon learning that Mueller was going
retire, Mueller's supervisor, Administrative Coordinator Nancy Bemmann, decided to review
job description for that position (i.e. the deputy clerk V). The deputy clerk V is responsible
doing the County's payroll for its 300 employes. After doing so, Bemmann determined that
existing deputy clerk V job description, which had not been changed for 30 years, did not
with the existing job requirements of the position. Bemmann therefore made several changes
the deputy clerk V job description. Two of the changes which Bemmann made to the deputy
job description were to add the following: 1) that the deputy clerk V position required
"knowledge of County practices and procedures, particularly in the areas of payroll and
ledger accounting"; and 2) an "associate's degree in accounting or a minimum of three to
years of progressively responsible experience in a payroll or accounting position". When
Bemmann revised the deputy V job description, she knew that the County planned to convert
a computer-operated payroll system to handle its payroll.
After Mueller retired, the County did not post the vacant position. The County's
to not post the vacancy was based on an opinion from the County's Corporation Counsel.
of posting the vacancy, the County sought external applicants via a newspaper advertisement.
newspaper advertisement indicated that the deputy clerk V "performs payroll and other
duties to include keeping accounts, posting to general ledger, preparing and posting journal
entries, preparing vouchers and preparing monthly and quarterly social security and tax
The newspaper advertisement further indicated that the qualifications for such position
an "associate's degree in accounting or three to five years progressively responsible payroll
52 people applied for the position. One of the applicants was Christine Moe, an
County employe and member of the Courthouse bargaining unit. Another applicant was Pat
Kessler. At the time, Kessler was not a County employe. All the applicants then took a
test which covered payroll, accounting and computer knowledge. Kessler scored 125 out of
on the test and Moe scored 121 out of 142. Eight of the 52 applicants were subsequently
interviewed; Kessler and Moe were among them. Following the interviews, the Employer
selected Kessler for the position. Kessler's start date with the County was December 12,
While the selection process referenced above was ongoing, the Union filed a
practice complaint with the WERC concerning the Employer's failure to post the vacant
clerk V position. The complaint was voluntarily settled in July, 1996. The stipulated
provided in pertinent part that:
the position of deputy V in the Door County Clerk's department.
. .will be posted in
accordance with the . . .contract, and that the incumbent deputy V (Kessler) may post for the
position as a member of the Courthouse bargaining unit.
In August, 1996, the County vacated the deputy clerk V position then held by Kessler
posted the position. This action was taken to comply with the settlement agreement just
referenced. A job description for the deputy clerk V position was attached to the posting.
job qualifications contained in this job description were identical to the job qualifications
in the newspaper advertisement identified above, and a 1994 brochure entitled "Job
and Benefits Package Deputy V, Door County Clerk's Office". Four employes
bid on the position. Moe was one of the bidders and Kessler was another. Each of them
completed a three-page Job Posting Form which is similar in form and substance to a
employment application form. The following information concerning Moe's and Kessler's
employment and educational background is taken from their 1996 completed forms.
Moe has worked for the County since 1987. Since then, she has held three different
positions with the County. She was a clerk typist in the planning department for two years,
a records clerk in the Sheriff's department for 6 years, and at the time of the hearing had
administrative assistant with the real property listing office for one year. She did not
payroll functions in any of these three jobs. In addition to listing these three jobs with the
her Job Posting Form also contained the following two entries for non-County employment.
indicated she had worked for Nebel Construction as a bookkeeper from February, 1986 to
October, 1987, where her duties were "accounts receivable and payable, payroll, (and) bank
deposits." The form also indicated she had worked for Town and Country as a bookkeeper
January, 1985 to February, 1986, where her duties were "accounts receivable and payable,
payroll, computer entry, (and) bank deposits." With regard to her educational background,
indicated on the form that she had a high school degree and completed one year of technical
school where she had studied "medical assisting". She also indicated on the form that she
following additional training: "accounting-payroll; spreadsheet-intro; filing/finding records;
teletechniques." She also indicated on the form that she could use AS/400 (computer)
As previously noted, Kessler has worked for the County since 1994. Since then, she
held just one position, that being deputy clerk V in the County Clerk's office. Her Job
Form listed that work experience as well as the following four entries for non-County
employment. It indicated that she had worked for Door County Memorial Hospital as an
administrative secretary from September, 1988 to December, 1994 where her duties were to
"process payroll, produce checks and reports, complete quarterly 941's and annual W-2's,
payroll budgets and make tax deposits." It also indicated she had worked for New Reality as
secretary-receptionist in 1987 and 1988 where her duties were to "maintain client
records, answer phones and mail, type contracts, balance trust accounts, prepare
newspaper, (and) filing." It also indicated she had worked for Harrah's Hotel and Casino in
Nevada as an income control clerk in 1985 and 1986 where her duties were to "perform
bars and restaurants, calculate sales and use taxes, prepare discrepancy reports, (and) process
credit cards." It also indicated that she had worked for Roundy's Northern Division as a
entry operator/accounts payable clerk from 1971 to 1985 where her duties were to "order
inventory control, match invoices, determine due dates, determine discounts and prepare
vouchers." With regard to her educational background, Kessler indicated on the form that
a high school degree and had attended two different technical schools where she studied
accounting, DP math, PC's, and human resources. She also indicated on the form that she
the following additional training: "H and R Block Income Tax Course, Labor and Law
Preparing for Year-End Seminar, Wisconsin Retirement System Seminar, Ad Hoc Report
From Health Microdata PC Software, have experience in doing a conversion for payroll/HR
software which included position control and applicant tracking." She also indicated on the
that she could use AS/400 payroll and accounts payable software.
After Administrative Coordinator Bemmann reviewed the completed Job Posting
of the four bidders, she selected Kessler for the clerk V position. Bemmann's stated reason
doing so was that she felt Kessler possessed the necessary qualifications for the position
other applicants (including Moe) did not. In making her decision, Bemmann did not
any of the bidders or review any of their personnel files; instead, she simply reviewed the
Job Posting Forms.
Prior to Kessler being awarded the position, the three unsuccessful bidders were sent
identical letters by the County's Human Resources Director informing them that "the County
determined that you do not possess the qualifications as stated in the position description
was attached to the job posting. You are not being awarded the position."
Moe subsequently grieved her non-selection for the position. She contends she
been awarded the position because she was the senior qualified applicant. The record
that Moe has more seniority than Kessler.
When the grievance was being processed, Moe informed the County that she had
a written addendum to her Job Posting Form. Moe indicated this addendum listed
about three additional jobs she had held. This addendum is not contained in the County's
nor is it attached to Moe's Job Posting Form which the County possesses. Moe did not
copy of her application and/or addendum. Bemmann testified that when she reviewed Moe's
application, there was no addendum attached to it which listed additional employers.
The following information is compiled from Union Exhibit 12 which purports to be
recollection of the information listed on the addendum which she claims was attached to her
application. Moe worked at Tamayo Clinic from June, 1984 to January, 1985 where her
were "accounts receivable, daily ledger, bank deposits, pull patient files, (and) collect
invoices." She worked part-time for the Sturgeon Bay Softball Association as
from April, 1988 to April, 1989, where her duties were "accounts payable, payroll, quarterly
taxes, (and) bank deposits." In this job, Moe did the payroll for five employes. She did this
payroll work manually without the aid of a computer. Moe testified that she worked a few
every two weeks performing these duties. She also worked part-time for Morning Glory
Restaurant from April, 1989 to November, 1989 where her duties were "accounts receivable
payable, payroll, (and) quarterly tax reports." In this job, Moe did the payroll for about ten
employes. She did this payroll work manually without the aid of a computer. Moe testified
she worked five to ten hours per week performing these duties.
Moe's employment records contain conflicting dates for her employment with Nebel
Construction and Town and Country. The following shows this. Her initial employment
application which is dated 8-26-87 lists her employment with Nebel as being from "8-86 to
present." Her 1996 posting application lists her employment with Nebel as being from "2-86
10-87." Moe's initial 1987 employment application lists her employment with Town and
as being from "1/86 to 8/86." Her 1996 posting application lists her employment with Town
Country as being from "1/85 to 2/86."
POSITIONS OF THE PARTIES
The Union contends that the Employer violated the labor agreement when it filled the
V position in the County Clerk's office in 1996. According to the Union, the position should
been awarded to Moe rather than to Kessler.
This contention is based on the premise that Moe was the "senior qualified" bidder.
regard to the bidder's seniority, the Union notes that Moe has more seniority than Kessler.
notes that Kessler was the least senior of the four bidders. With regard to the bidders'
qualifications, the Union avers that Moe had the "three to five years progressively
payroll and accounting experience" which the Employer had established as a qualification for
position. It makes the following arguments to support this contention. First, the Union
attention to the fact that Moe's Job Posting Form listed two jobs where she did payroll and
bookkeeping tasks, namely her jobs with Nebel Construction and Town and Country.
to the Union, these past two employers alone show that Moe had 33 combined months of
experience (i.e. 20 months of payroll experience with Nebel and 13 months of payroll
with Town and Country). Second, the Union avers that Moe
attached an addendum to her Job Posting Form wherein she listed two more jobs where
the payroll, namely her jobs with the softball association and Morning Glory Restaurant.
Union submits these two employers gave her an additional 19 combined months payroll
(i.e. 12 months of payroll experience with the softball association and 7 months payroll
with Morning Glory Restaurant). The Union contends these four jobs satisfy the experience
requirement because, when combined, they total 52 months of payroll experience (i.e. 20
with Nebel Construction, plus 13 months with Town and Country, plus 12 months with the
softball association, plus 7 months with Morning Glory Restaurant equals 52 months.)
Next, the Union makes the following arguments in response to the Employer's
that Moe's payroll experience is out-of-date. First, it submits that the job posting and job
description do not contain a time frame for having the three to five years payroll experience.
Union therefore believes that Moe's payroll experience should still be acceptable even though
occurred eight years ago. Second, the Union avers that payroll work has not changed much
Moe's last payroll experience in 1989. To support this premise, it cites Moe's testimony to
effect. Third, the Union asserts that Moe listed on her Job Posting Form that she had taken
accounting course. The Union notes that this course was taken in 1994, that it was part of
associate degree program, and that Moe got an "A" in the course. In the Union's view, this
establishes that Moe's payroll skills had recently been updated and were not outdated as
by the Employer. The Union also contends that the accounting course proves that Moe "has
educational preparation specific to the task."
The Union also argues that when Bemmann decided who to select for the position,
went beyond what was listed on the job description in terms of education and experience. To
support this premise, it cites Bemmann's testimony that she also considered the size of the
organization that was worked for and whether the person had any AS/400 experience in
and accounting. The Union believes this was too specific a criteria. As the Union puts it,
employer's determination of qualifications should be based on the general skills which can be
adapted to the specific task of the position." The Union argues in the alternative that even if
size of the organization and AS/400 experience are relevant criteria, Moe satisfied the
criteria. It makes the following arguments to support this contention. With regard to the
the organizations where Moe had done payroll work, the Union cites Moe's testimony that
were 10 to 15 employes at Town and Country, 40 employes plus 10 summer employes at
Construction, five employes at the softball association and 10 employes at Morning Glory
Restaurant. The Union submits that when considered together, these numbers establish that
had prepared the payroll for "many employes". With regard to the AS/400 experience, the
acknowledges that all Moe's previous payroll work was done manually. Be that as it may,
Union notes that when Moe took the previously referenced accounting course, a course
involved doing the payroll for a business on a computer. According to the Union, this
project shows that Moe has been trained to do payroll with a computer program (like the
Finally, the Union calls attention to the fact that when Bemmann made her decision,
relied, in part, on the fact that Kessler told her in the 1994 interview that she had done
an AS/400. The Union submits that if Bemmann considered things from Kessler's 1994
interview, she should have considered them for all of the 1996 job bidders.
In sum then, the Union asserts that Moe satisfied both the general and the specific
qualifications for the job. In the Union's opinion, Moe had the necessary education and
experience so she should have been awarded the position and been given a trial period
she would have a chance to demonstrate that she could do the job. The Union contends that
that did not happen, the County violated the labor agreement. In order to remedy this
contractual breach, the Union asks that the arbitrator award the deputy V position to Moe
make her whole for lost wages.
The County contends it did not violate Article 6 (D) of the labor agreement when it
the deputy V position in the County Clerk's office in 1996. According to the County, it
awarded the position to Kessler because she was the only qualified bidder. The County
that the reason Moe was not picked for the position was because she was not qualified for it.
County believes that the Union has to show that the County erred in deciding that Moe was
qualified and that it has failed to meet this burden. It makes the following arguments to
The County notes at the outset that while the posting provision (Article 6, D)
qualifications are to be considered along with seniority when filling job vacancies, the
does not indicate how determinations of qualifications are to be made. That being so, the
contends it has full authority to establish job qualifications for a position and to determine
applicants meet said qualifications. With regard to the deputy V job qualifications, the
submits that the qualifications which it set in the 1996 job posting and job description are
to the job qualifications which it established and used in 1994. The County contends that if
Union is arguing that the 1996 job description is different from the 1994 job description,
assertion is just plain wrong. According to the County, the 1994 revisions to the deputy V
description concerning education and experience were made to reflect the actual requirements
the job, the size of the County's payroll (almost 300 employes) and the County's likely
to a computerized payroll system. The County believes that the minimum education or
qualifications which it established for the deputy V position were reasonably related to the
duties and responsibilities of that position, so the arbitrator should not reject those job
Second, the County argues that Moe was not qualified for the deputy V position. To
support this contention, the County avers that Moe did not have an associate degree in
or a minimum of three to five years of payroll and accounting experience, did not have
progressively responsible payroll experience, did not have work experience operating a
computerized payroll system, and did not have payroll conversion experience. With regard
Moe's payroll and accounting experience, the Union notes for purposes of background that
Job Posting Form lists just two jobs where she performed work on accounts receivable and
payroll, namely her job as a bookkeeper for Nebel Construction and her job as a bookkeeper
Town and Country. The County further notes that according to that form, she spent 20
with the former and 13 months with the latter. The County submits that this combined 33
does not meet the minimal work experience requirement (i.e. three years). In addition, the
County contends that Moe's work experience with these two employers was not in a
responsible" payroll and accounting position. The County also notes that neither of these
involved a computerized payroll (which is what the County had implemented) and that both
these companies had relatively small payrolls of 10 to 30 employes in comparison to the
payroll of 300 employes. The County argues that Moe's payroll and accounting work for the
softball association and Morning Glory Restaurant should not be considered by the arbitrator
because this information was not presented to the Employer until after the position was filled.
However, in the event this work experience is considered, the Employer makes the following
points: it involved small companies with few employes, involved a manual payroll system,
just a small amount of time was spent per week performing payroll duties, so it does not
full-time experience. The County concludes from the foregoing that Moe's work experience
the softball association and the restaurant does not involve "progressively responsible"
accounting work either. In response to the Union's contention that it did not consider Moe's
qualifications for the job, the County contends that it did, and the Union's contention to the
contrary is unfounded. The County asserts that after it considered Moe's qualifications, it
concluded that Moe had less than three years of payroll/accounting experience, that her
payroll/accounting work was performed for employers who were much smaller than the
and that her payroll/accounting experience was dated in that it occurred eight years ago.
Third, the County contends that Moe's lack of qualifications for the position are
demonstrated by her inaccurate, inconsistent and contradictory claims regarding her previous
payroll/accounting experience. According to the County, all of Moe's claims regarding her
payroll/accounting experience are questionable and unreliable because she overstated the
of experience she has had in that regard. With regard to her experience at Town and
the Employer notes that while Moe's Job Posting Form said she had 13 months of payroll
experience, Company owner Bockhop testified that Moe performed payroll duties for just
months. The County also cites Bockhop's testimony that his company employed seven
during that time frame, not 10 to 15 employes as Moe testified. Citing Bockhop's testimony,
Employer asserts that Moe's claim of 13 months of experience with Town and Country is
and should not be counted. The Employer also contends that Moe's job applications have
inconsistencies about her payroll/accounting experience. It notes in this regard that
there is a
seven-month difference in her starting date at Nebel Construction on her 1987 County job
application and her 1996 Job Posting Form. The Employer believes this difference should be
deducted from Moe's claimed payroll/accounting experience. The Employer also notes that
Moe's 1987 County job application lists seven months of employment with Town and
her 1996 Job Posting Form lists 13 months of employment with that employer. According to
County, these inconsistencies were no accident, but rather part of a blatant and fraudulent
to inflate her payroll experience with those two employers by 12 months.
Finally, the County submits that in contrast to Moe's lack of qualifications, Kessler
the qualifications for the position. To support this premise, it cites her payroll/accounting
for Door County Memorial Hospital. According to the County, her payroll experience with
employer was "progressively responsible", involved a payroll size comparable to the number
employed by Door County, included a payroll conversion to a computerized system, and
the same computer payroll program the County planned to use.
The County therefore requests that the grievance be denied.
At issue is whether the County violated the contract when it filled the deputy V
in 1996. The position was awarded to Kessler, the prior incumbent. The Union contends
should have been awarded the position rather than Kessler. The County disputes this
According to the County, Moe was not qualified to fill the position while Kessler was.
In deciding this posting dispute, attention is focused initially on the applicable
language. The parties agree that the contract language applicable here is Article 6 (D). That
section specifies the procedure to be used in filling vacancies (i.e. it establishes a job posting
procedure). Specifically, it provides in pertinent part: "Whenever any vacancy occurs, it
given to the senior qualified employee. . ." This provision makes qualifications a factor to be
considered along with seniority in filling vacancies. The section goes on to provide for a
period for the employe selected to fill the vacancy. However, this trial period is not
for everyone who applies or even the senior applicant. Instead, the trial period only comes
play after someone has been found qualified for the job. The word "qualified" is not defined
the agreement. In the absence of a contractual definition of "qualified", the standards to be
in determining qualifications have been left to the County.
The standards which the Employer set for the deputy V job were contained in that
position's revised job description. While that job description listed numerous job
the parties have focused their attention on just two of them. The undersigned will do
The two criteria which the parties emphasized were: 1) "knowledge of accounting practices
procedures, particularly in the areas of payroll and general ledger accounting" and 3)
degree in accounting or minimum of three to five years of progressively responsible
in a payroll and accounting position." These two criteria, particularly the latter, set the
educational and experience standards for the job. The Employer argues these standards were
related and the Union does not expressly argue otherwise. I find that the educational and
experience standards referenced above were job-related. Suffice it to say that such standards
routinely used in determining qualifications.
The Employer decided that Kessler possessed these qualifications and that Moe did
The question here is whether management's decision concerning same was unreasonable
facts, arbitrary or capricious.
I begin my discussion of same by reviewing the following pertinent background.
the Employer posted the deputy V vacancy, it invited those who were interested to "make
application in writing." Kessler and Moe were two of the bidders who did so. Both
a Job Posting Form wherein they listed, among other things, their education, training, and
experience. After they submitted their completed forms, Bemmann reviewed them.
testified that she made her decision concerning which bidder was qualified based on what
written on their form. That being the case, it follows that the contents of those forms are of
significance here. The contents of each will now be reviewed in detail.
Attention is focused first on Moe's application. With regard to her educational
Moe indicated that she had completed one year of education past high school at a
vocational-technical school where she had studied "medical assisting". In another section of
the form which
asked the applicant to describe any training not already identified, Moe wrote in pertinent
"accounting-payroll." With regard to her employment experience, Moe listed five employers:
were Door County, another was Nebel Construction, and another was Town and Country.
claimed payroll experience with the latter two (i.e. her jobs with Nebel Construction and
and Country) but not the former three (i.e. her jobs with Door County). She indicated on
form that she worked at Nebel Construction from February, 1986 to October, 1987 and at
and Country from January, 1985 to February, 1986. These five employers were the only
listed on the form. There is nothing on the form that indicates that additional work
is continued on another sheet, addendum or appendix.
Attention is now turned to Kessler's application. With regard to her educational
background, Kessler indicated she had studied "accounting, DP math, PC's and human
at two vocational-technical schools. In another section of the form which asked the applicant
describe any training not already identified, Kessler wrote in pertinent part: "have experience
doing a conversion for payroll." With regard to her employment experience, Kessler listed
employers: Door County, Door County Memorial Hospital, New Reality, Harrah's Hotel and
Casino, and Roundy's Northern Division. Kessler claimed payroll experience with the
(i.e. her jobs with Door County and Door County Memorial Hospital) but not the latter three
her jobs with New Realty, Harrah's and Roundy's). She
indicated on this form that she had worked for Door County from December, 1994 to
and at Door County Memorial Hospital from September, 1988 to December, 1994.
When Bemmann reviewed the work experience section of Moe's form, she
concluded that Moe was claiming to have 20 months of payroll and accounting experience
her job with Nebel Construction and 13 months of payroll and accounting experience from
with Town and Country. Adding these two figures together, Bemmann calculated that Moe
claiming to have a total of 33 months of payroll and accounting experience.
A big part of this case involves Moe's contention that she had more payroll and
experience than the 33 months just referenced. Specifically, she asserts she had another 19
combined months of relevant experience with her jobs with the softball association and the
restaurant. Adding these two figures together (i.e. 33 plus 19) Moe claims a total of 52
(i.e. four years and four months) of payroll and accounting experience. According to Moe,
jobs with the softball association and the restaurant were listed on an addendum which was
attached to her Job Posting Form. Bemmann testified though that when she received Moe's
application and reviewed it, there was nothing attached to it as an appendix or addendum.
Since a dispute exists concerning whether an addendum listing other jobs was
Moe's application, it was incumbent upon the party asserting the matter (i.e. the Union) to
the matter asserted. I find that the Union has not done so. In so finding, it is initially noted
Moe's application form does not contain any addendum or appendix listing other jobs. The
claimed addendum has never been found and therefore was not offered into evidence. The
document which was offered into evidence as Union Exhibit 12 is not a copy of the original
addendum but only what purports to be Moe's recollection of what she submitted. Moe did
keep a copy of her application, so the only copy of same in existence is the one in the
possession (which, as previously noted, does not contain any such addendum). Additionally,
is nothing anywhere on the face of Moe's Job Posting Form that indicates that an addendum
an appendix is attached, or that the prior employment section is continued with more listings
another sheet of paper. Given the foregoing, it is held that it has not been established that an
addendum listing more jobs was attached to Moe's application.
The Employer ultimately learned of Moe's work experience with the softball
and the restaurant, but this happened at the second step grievance meeting. By that time
the deputy V position had already been filled. I find that since the information concerning
payroll and accounting work for the softball association and the restaurant was not given to
Employer until after the deputy V position was filled, the Employer did not have to consider
Simply put, it was not submitted in a timely fashion. This finding has the following
consequences. First and foremost, it means that Moe's qualifications will be determined by
reviewing just her Job Posting Form. Thus, I will review the very same document and
the same exact information which Bemmann considered when she decided if Moe was
for the position. Second, since I will not be considering the information contained on Union
Exhibit 12 (i.e. Moe's recollection of what she submitted concerning additional jobs),
unnecessary to address the various arguments made by the Employer concerning those jobs
that they involved small companies with few employes, that they involved manual payroll
that they did not involve progressively responsible work, and that just a small amount of time
spent per week performing payroll duties at those jobs so it does not equal full-time
Thus, no additional comments will be made concerning those arguments.
Having so found, the focus turns again to the contents of Moe's Job Posting Form.
previously noted, after Bemmann reviewed same, she (Bemmann) found that Moe did not
the qualifications set forth in the job description.
I find that this decision was not unreasonable, arbitrary or capricious. As has
been noted, the deputy V job description set forth the qualifications for the job. The one
qualification which the parties focused on was the one specifying the education or work
needed for the job (i.e. "an associate degree in accounting or minimum of three to five years
progressively responsible experience in a payroll and accounting position.") The following
evidence establishes that Moe did not satisfy either part of this criteria. With regard to her
educational background, it is undisputed that Moe did not have an associate degree in
While the Union makes much of the fact that Moe took an accounting course in 1994 that
of an associate degree program, completing one course is a far cry from completing a
Moreover, Moe did not even indicate on her application that she had taken a college level
accounting course. Instead, all she listed on the application was "accounting-payroll". There
no way that Bemmann could have known from this limited entry that Moe took a college
accounting course in 1994. Turning to her work experience, I begin by noting that it is
exactly when Moe worked at Nebel and Town and Country, and how much of that time was
doing payroll and accounting (as opposed to other duties), and whether her experience with
two employers involved "progressively responsible" work. For purposes of discussion, I
decided to credit Moe as working for those two companies for the time periods listed in her
Posting Form, and to credit her as having done payroll and accounting work for that entire
of time, and also to assume that her experience with those two employers involved
responsible" work. In other words, it is assumed that the result most favorable to Moe in
three areas is adopted. However, even assuming all this, it only gives Moe 33 months of
"progressively responsible" payroll and accounting experience. 33 months does not meet the
experience requirement set forth in the job description (i.e. a minimum of three to five years
progressively responsible experience in a payroll or accounting position). Thus, based on the
information which Moe herself supplied on her Job Posting Form, she did not satisfy either
education or the work experience criteria specified in the job description. That being so, she
not qualified for the job of deputy V.
Having found that Moe did not satisfy either the educational or work experience
it is unnecessary to address the remaining arguments made by the parties concerning Moe's
and accounting work with Nebel and Town and Country (i.e. whether the payroll of Nebel
Town and Country was comparable to that of Door County and whether Moe's payroll
with those two companies was dated). Again, for purposes of discussion, even if it is
that the payroll of those two companies was comparable to that of Door County, and that
payroll experience was not dated, this does not change the previous finding that Moe did not
satisfy either the education or work experience criteria specified in the job description.
In finding Moe unqualified, it is noted that I did not rely on the Employer arguments
Moe did not have experience operating a computerized payroll system and did not have
conversion experience. My reason for doing so is as follows. First, neither is expressly
mentioned as a criteria on the job description. If the Employer wanted to rely on these two
criteria, it should have listed them on the job description as qualifications. Second, these
arguments are intended to persuade me that Kessler is more qualified than Moe because
has experience operating a computer payroll system and payroll conversion experience while
does not. However, the contractual standard applicable here is not which candidate is most
qualified; it is whether the senior applicant is qualified. In this case, I have been able to
decision (i.e. whether Moe is qualified for the deputy V job) without relying on the two
arguments just referenced.
The focus now turns to the contents of Kessler's Job Posting Form. As previously
after Bemmann reviewed same, she (Bemmann) found that Kessler met the qualifications set
in the job description.
I find that this decision was not unreasonable, arbitrary or capricious. With regard to
Kessler's educational background, it is undisputed that Kessler did not have an associate
in accounting. Thus, she did not meet the education criteria. However, she did meet the
experience criteria. This is because Kessler had six years of payroll and accounting
with the Door County Memorial Hospital in addition to the experience she had gained as the
incumbent in the deputy V position. Bemmann's conclusion that Kessler's hospital payroll
experience qualified as "progressively responsible" is not expressly challenged by the Union
the undersigned has no reason to find otherwise. Given the foregoing, it follows that Kessler
the work experience requirement set forth in the job description (i.e. a minimum of three to
years of progressively responsible experience in a payroll and accounting position). That
so, she was qualified for the job of deputy V.
In conclusion then, it is held that Moe was not qualified for the deputy V position
Kessler was. Since the senior applicant (Moe) was not qualified, the County did not have to
her the position. As a result, the County did not violate the labor agreement by awarding the
position to Kessler.
In light of the above, I issue the following
That the Employer did not violate the collective bargaining agreement when it filled
deputy clerk V position in the County Clerk's office in 1996. Therefore, the grievance is
Dated at Madison, Wisconsin, this 16th day of October, 1997.
Raleigh Jones /s/
Raleigh Jones, Arbitrator
1. Transcript, p. 6.
2. In their initial brief, the Employer worded the issue
differently from that noted here. The
verbal exchange memorialized on page 6 of the hearing transcript shows that the parties
to the wording of the issue noted here. Given that stipulation, that issue will be decided
not the issue proposed in the Employer's initial brief.