BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LaCROSSE COUNTY PROFESSIONAL
LOCAL 2484, WCCME, AFSCME,
Mr. Daniel R. Pfeifer, Staff Representative, for the Union.
Mr. William A. Shepherd, Corporation Counsel, for the County.
The above-noted parties asked that the Wisconsin Employment Relations Commission
assign this dispute to me for resolution through a final and binding arbitration award.
was held in LaCrosse, Wisconsin on August 12, 1997. No transcript was made of the
proceedings. Briefs were filed by September 17, 1997. The parties waived the contractual
deadline for issuance of this award.
The parties agreed that the issue to be decided is:
Did the County violate the collective bargaining agreement by
failing to award the vacant
Community Health Nurse II-Occupational Health position to the grievant, Sue Conard? If
what is the appropriate remedy?
9.02 The job requirements, qualifications, and rate of pay
shall be part of the posting
and sufficient space for interested parties to sign said posting, or they may, in
writing, notify the Department Head of their application. Copies of said postings
and the bidders shall be submitted to the Union.
9.03 To apply for a vacancy, the employee must have the
basic qualifications for the
job, or required certification, as provided under the County Personnel
Administrative Code and Rules, or State Merit System for Social Services
Departments, whichever is applicable. The allocation or the number of
classifications shall rest with the County, except as may be otherwise provided in
this Agreement. If the County accepts delegation of a personnel Administrative
System as incorporated in the County Personnel Administrative Code and Rules,
any impact shall be bargained with the Union as it might affect wages, hours, or
conditions of employment.
9.04 In filling a declared vacancy, the employee signing with
the greatest seniority in
the Department shall be given first consideration except as provided for in 9.03
above. Skill, ability and efficiency shall be taken into consideration when they
substantially outweigh consideration of length of service in the Department. In
addition, employees who are not working due to disability, vacation or approved
leave shall notify the Personnel Department if they wish to be advised of postings,
by providing in writing the address to which postings are to be sent. The absent
employee(s) must respond within the time set forth on the posting.
9.05 Employees filling promotional vacancies shall be on a
trial period for six (6)
months. An employee who fails to have the ability to handle a classification
obtained through job posting during this trial period, shall be returned to his former
classification as if there had been no interruption. An employee may not rebid on
another position,n during the six (6) months trial period.
The grievant is currently a Community Health Nurse with the County. She applied
lateral transfer into the Occupational Health position. The County denied her the position
contending that she ". . . had significant difficulty working in some settings."
The Union argues that the grievant has the "skill, ability and efficiency" to perform
job and thus is entitled to the position under Articles 9.02, 9.03 and 9.04 of the contract.
County agrees that the grievant would be entitled to receive the position if she had the
"skill, ability and efficiency" but contends that she does not possess same.
The record establishes that a primary responsibility of the Occupational Health
the development and implementation of an occupational health program for all County
Among other matters, the County contends that the grievant's past job performance with the
County establishes that she does not have the organizational skills or abilities to successfully
perform this responsibility. The County points to the grievant's work experiences with the
Program as proof of its position. The Union asserts that the County's evidence falls short of
establishing the grievant's lack of skill and ability in this area.
On balance, I find the evidence regarding the grievant's performance in the Lead
to be a persuasive basis for concluding she does not possess sufficient organizational skill and
ability to get the occupational health program "up and running." Because this responsibility
such a critical part of the position's duties, I conclude the County did not violate the parties'
contract when it denied the grievant's request for a lateral transfer. 1 Having reached this
conclusion, I need not resolve the parties' dispute over whether the testimony of Sister Beres
Sheriff Halverson establishes that the grievant also lacks the requisite "trust" and
"professionalism" to hold the position.
Given the foregoing, I deny the grievance.
Dated at Madison, Wisconsin, this 12th day of December, 1997.
Peter G. Davis /s/
Peter G. Davis, Arbitrator
1. The Union argues that the grievant is entitled to a trial
period in the position to demonstrate
that she can perform the work. However, as the Union also notes, Article 9.05 of the
specifically reserves trial periods for employes filling promotional vacancies. Because this is
dispute over a lateral transfer, there is no specified contractual right to serve a trial period. I
further conclude he evidence that the employes have on occasion served trial periods in
transfer situations is insufficient to create a binding practice.
The Union goes on to argue that the absence a trial period for lateral transfers
establishes an intent
that employes are automatically qualified for any lateral transfer. However, I am satisfied
under Article 9.04, the issue of an employe's "skill, ability, and efficiency" remains a