BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 2228
AFSCME Local 2228, herein the Union, requested the Wisconsin Employment
Relations Commission to designate the undersigned as an arbitrator to hear and to decide a
dispute between the parties. Winnebago County, herein the County, concurred with said
request and the undersigned was designated as the arbitrator. Hearing was held in Oshkosh,
Wisconsin, on September 16, 1997. A stenographic transcript of the hearing was not
The parties completed the filing of post-hearing briefs on November 3, 1997.
The parties stipulated to the following issues:
Did the County violate the collective bargaining agreement by not
offering the position
of Home Consultant to Beth Lehl? If so, what is the appropriate remedy?
The position of home consultant has existed for a number of years. The home
consultants work out of the Department of Social Services offices in Oshkosh and Neenah.
The position had been a paraprofessional position until the County revised the qualifications
in 1992 to require either a bachelor's or master's degree in a human services field.
In December of 1996, a home consultant in the Oshkosh office, Johna Lovat,
Lovat was a certified social worker. On December 23, 1996, the County posted a
of home consultant: children/family team-Oshkosh. The posting stated the following:
This vacancy is created due to the resignation of Johna Lovat.
This position was formerly
a Social Worker position but has been redesigned and approved by the County Board as a
Home Consultant. This position is available immediately.
Among the qualifications listed in the posted position description
were the following:
1. Possesses good knowledge of household
management, child development, parenting
skills, financial counseling, problem solving, and understanding of human behavior.
2. Possess higher education
training in the areas of child development, home economics,
and financial or bookkeeping practices.
Beth Lehl was the only employe to apply for the posted position. Lehl has worked for
County as an energy assistance program clerk, which position requires a high school
education, for approximately eight years. The two positions, i.e., energy assistance program
clerk and home consultant, have the same wage rate. Lehl has a high school diploma, has
taken a non-credit parenting class at Fox Valley Technical College, and has taken classes
a private firm on managing one's personal finances. Lehl has raised five children, some of
that time as a single parent. Lehl has not taken any post-high school classes for credit. The
County interviewed Lehl for the posted position and concluded that she did not meet the
general qualifications for the position.
The County hired an outside applicant, Jean Dudgeon, for the posted position.
Dudgeon had a bachelor's degree in vocational home economics, had taught at the
and high school levels, and had worked as a case worker for the Wayne County, Indiana,
Division of Family and Children.
POSITIONS OF THE PARTIES
The Union argues that the County cannot hire an applicant from outside the
bargaining unit if an employe from within the bargaining unit applies and meets the minimum
qualifications for the position, even if the outside applicant has superior qualifications.
on Lehl's background and tenure with the County, she met the minimum qualifications and
she should have been awarded the position. The position description no longer requires a
college degree, as did the prior position description. A college degree is not necessary to
successfully perform the job, as evidenced by Connie Christianson, who has successfully
performed the duties of the home consultant even though she does not have any formal
education beyond her high school degree.
The County argues that the contract allows the County to determine the qualifications
of the applicants. The Union failed to prove that the qualifications were either established or
applied in a manner which was arbitrary, discriminatory, capricious or in bad faith. Lehl did
not meet the requirement for higher education training. Thus, the County did not violate the
contract by concluding that Lehl was unqualified for the position. Moreover, Dudgeon was
better qualified than Lehl and the County has the right under the contract to select the better
. . .
The job requirements, qualifications and salary range shall be
part of the posting.
Regular employees who have passed their probationary period and who desire to apply for
such vacant position are to make application in writing through the Department.
The Employer shall determine the
qualifications of the applicants. If, in the opinion
of the Employer, two (2) or more applicants for a single vacancy are in all respects equally
qualified to fill such vacancy, it shall be filled by the employee among such equally qualified
applicants having the longest continuous service within the Social Services Department. If,
in the opinion of the Employer, one (1) of such applicants is better qualified to fill such
vacancy than any other applicant, it may be filled by such better qualified applicant. The
Employer agrees that if a selection is to be made from such posting that it will be made
thirty (30) working days after the close of the aforementioned posting. This period of
may be extended by mutual agreement of the parties. Should
such employee not qualify
within a ninety (90) day trial period for a professional position or for the position of
Assistance Case Manager or Lead Worker or within a sixty (60) day period for any other
position, or should the employee desire to return to his former position at any time within the
trial period, the employee shall be reassigned to his former position without loss of seniority.
The designated trial period may be extended on a case by case basis by mutual agreement of
Lehl was interviewed by representatives of the County. During the interview Lehl
advise the interviewers of the elements of her background and experience which she believed
made her qualified for the position. Although Lehl had raised five children and had
experience in working with a variety of clients, it was clear to the interviewers that Lehl did
not have any formal education beyond a high school diploma. The testimony of the County's
witnesses leaves no doubt that they thought Lehl failed to meet the education requirement of
the position of home consultant. The job posting specified that one of the general
qualifications for the position was the possession of higher education training in certain stated
areas. While such a statement does not mandate the possession of a college degree, as had
been the requirement in the 1992 posting, the statement sets forth the County's belief that the
position required at least some post-secondary education, if not an actual degree.
One of the witnesses at the hearing, Connie Christianson, has performed very
competently as a home consultant for over nine years, even though she does not have any
education beyond a high school degree. However, such an example does not render the
current requirement for some post-high school education to be unreasonable. In fact, the
County presented a rational basis for the stated requirement of some post-high school
education by relating the desired education to the duties of the position. The County's belief
that some post secondary education will increase the chances that an individual will perform
the duties successfully, is reasonable. The record does not support a finding that the
education requirement was of an arbitrary or capricious nature. Neither was there any
evidence to show that the County failed to apply the education requirement during the hiring
process for the vacancy at issue herein. The County reasonably concluded that Lehl's
background and experience failed to meet the stated qualification for higher educational
training. Thus, since the qualification was reasonable and Lehl failed to meet the
qualification, the County did not violate the contract in failing to award the posting to Lehl.
Because Lehl was not qualified for the position of home consultant, it is not necessary for the
undersigned to reach the question of whether the County has the right to select a more
qualified applicant from outside the unit over a qualified applicant from within the unit.
Based on the foregoing, the undersigned enters the following
That the County did not violate the collective bargaining agreement by
failing to offer
the position of home consultant to the grievant, Beth Lehl; and, that the grievance is denied
Dated at Madison, Wisconsin this 22nd day of January, 1998.
Douglas V. Knudson, Arbitrator