BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SUPERIOR CITY EMPLOYEES' UNION
LOCAL #244, AFSCME, AFL-CIO
CITY OF SUPERIOR
Ms. Mary Lou Andresen, Human Resources Director, on behalf
of the City.
Mr. James Mattson, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on
behalf of the Union.
The above-captioned parties, herein "Union" and "City", are parties to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
held in Superior, Wisconsin, on November 7, 1997. The hearing was not transcribed and
parties there presented oral arguments in lieu of filing briefs. Pursuant to their request, I
issued a bench decision which this Award augments.
Did the City violate the contract when it awarded the Medium Equipment Operator
to an outside applicant and, if so, what is the appropriate remedy?
Much of this case is covered by Arbitrator Peter G. Davis' prior decision in City of
Superior, Case 150, No. 54499, MA-9704, (8/97) which also involved a job posting
He there ruled that: (1), "the interview/testing process . . .was applied fairly to the
(2), the City under Article 8.01(B) of the contract has the right to "grant the 90-day
period only to employees it finds 'qualified'" (emphasis in original); and (3),
there was "no
binding past practice" supporting the Union's claim that senior employees were automatically
entitled to serve a 90-day probationary period to demonstrate their qualifications.
Since Arbitrator Davis' award is res
adjudicata and therefore binding here, there is no
merit to the Union's claims that the testing for the Medium Equipment Operator position in
case was unfair and that senior employes are automatically entitled to demonstrate their
during a probationary period, as Arbitrator Davis has already ruled against the Union on
The Union's entire case, then, turns on its assertion that employes in the past have
allowed to automatically transfer to other City positions without taking a test. The record
indeed, show that that has happened over the years. However, many of those situations
transfers to the Laborer classification which is an entry level job and where qualifications
not an issue.
Here, by contrast, skills are needed to operate the heavy equipment in
even though the City did not always test for qualifications in the past, that does not prevent it
doing so here since the City has the inherent right to test for qualifications under Article 3 of
contract, entitled "Management Rights", which gives it the right to "hire, promote, schedule
assign employes to positions with the City" and Article 8, Section C, which gives it the right
hire outside employes "In the event no City employe is considered qualified by the
." Given this language, the City therefore is entitled to test applicants and to award posted
positions to outsiders when, as here, it finds that bargaining unit employes are not qualified
operate all of the equipment that a Medium Equipment Operator regularly uses as part of
In light of the above, it is my
That the City did not violate the contract when it awarded the Medium Equipment
position to someone outside the bargaining unit.
Dated at Madison, Wisconsin, this 18th day of November, 1997.
Amedeo Greco /s/
Amedeo Greco, Arbitrator