BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DODGE COUNTY TECHNICAL AND
EMPLOYEES LOCAL 1323-G, AFSCME,
Mr. Sam Froiland, Staff Representative, AFSCME Council 40,
on behalf of the Union.
Davis & Kuelthau, S.C., by Mr. Roger E. Walsh, on
behalf of the County.
The above-captioned parties, herein "Union" and "County", are privy to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
held in Juneau, Wisconsin, on September 9, 1997. The hearing was transcribed and the
thereafter filed briefs and reply briefs that were received by December 1, 1997.
Based upon the entire record and the arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the County violate Article XV of the contract when it
awarded the posted Administrative
Assistant position to Carol Lemke and, if so, what is the appropriate remedy?
The County on March 5, 1997, 1 posted
an Administrative Assistant position in the
Corporation Counsel's office (Joint Exhibit 4), which stated:
. . .
Full-time -- 40 hours per week
Salary: $9.90 - 10.762 - 11.053 - 11.322 - 11.574 - 11.819 (1996
Overall Purpose/Summary: Under the general direction of
Assistant Corporation Counsels,
provides administrative assistance/secretarial services to Corporation Counsel's office.
Job specifications include but are not limited to: high school
diploma or GED equivalent,
including or supplemented by typing or personal computer/word processing courses and four
years experience preferably in a legal setting, or equivalent combination of education and
experience which provides considerable knowledge of legal terminology and court
practices/procedures, working knowledge of garnishment, guardianships, reciprocal actions,
estate transactions, and IN-REM proceedings, ability to accurately enter information into
computer/word processor at rate equivalent to 70 wpm. Ability to take notes in abbreviated
and transcribe them at rate equivalent to 100 wpm, maintain accurate/complete records and
prepare clear/detailed reports, and other skills and abilities normally associated with
position of this type.
. . .
Said posting thus did not mention whether a test would be administered for said
Bargaining unit employes Clara Marx, Nancy Deck, and Kari Pursley bid for said
In addition, Carol Lemke - then a temporary employe who was filling in for the vacated
Administrative Assistant position - bid for it.
After they had bid, the County told Marx, Deck, and Pursley that they had to take a
shorthand test because the ability to take shorthand was one of the essential features of the
Administrative Assistant's position. Marx, a Typist II, refused to take the test. Deck, a
Secretary in Child Support, and Pursley took the test and failed it, hence leading to their
disqualification. Lemke previously worked as a legal secretary for another employer, but
nevertheless was required to take the steno test, which she passed on March 31. The County
awarded Lemke the Administrative Assistant's position because she was the only qualified
applicant at that point. The Union on April 7 grieved the County's action, hence leading to
POSITIONS OF THE
The Union argues that the County violated the contractual seniority provision set
Article XV of the contract because the County improperly insisted that applicants take a
test even though the posting did not refer to a test; because the test did not meet all of the
needed to constitute a valid test; because the County gave too much weight to the shorthand
requirement since that represents only a "minimal" part of the overall job; and because more
senior applicants were qualified to perform all other listed duties. It further claims that
was favored by current Corporation Counsel employes"; that the "decision to test was made
the posting period was completed"; and that prior Corporation Counsel Legal Secretaries
not tested for shorthand prior to hire." As a remedy, the Union asks that the most senior,
qualified applicant be given the position.
The County, in turn, contends that it has the unilateral right to establish minimum job
qualifications pursuant to Article III of the contract; that there is nothing in the contract
requires the County to announce in a job posting whether job applicants must take a test; that
therefore can insist on a testing requirement; that the ability to take shorthand notes has
been part of the Administrative Assistant's job; and that, as a result, it properly passed over
applicants who either refused to take the test (Marx) or who took it and failed (Deck and
The resolution of this case partly turns on Article III of the contract, entitled
Rights", which states:
. . .
Except as hereinafter provided, the Employer will have the sole
and exclusive right to
determine the number of Employees to be employed, the duties of each of these Employees,
nature and place of work and all matters pertaining to the management and operation of the
County, including the hiring, promoting, transferring, demoting, suspending or discharging
cause of any Employee. This shall include the right to assign and direct Employees, to
work and to pass upon the efficiency and capabilities of the Employees and the Employer
establish and enforce reasonable work rules and regulations. Further to the extent that rights
prerogatives of the Employer are not explicitly granted to the Union or Employees, such
are retained by the Employer. However, the provisions of this Section shall not be used for
purpose of undermining the Union or discriminating against any of its members.
"Except as hereinafter provided," the County under this proviso thus reserves the
determine matters involving the "promoting" of employes, along with the right to pass upon
"capabilities of the Employees. . ." The County therefore can test employes in order to
which, if any, employes should be promoted since that is one way to determine the
of its employes and since it is well-established that: "management is entitled to use any
to determine ability so long as the method used is fair and nondiscriminatory." How
Works, Elkouri and Elkouri, p. 845, (5th Ed., BNA, 1997). Such methods include
That being so, it must be determined whether any other parts of the contract limit the
County's right to administer tests as part of its promotional procedures.
The Union cites Article XV, entitled "Seniority Rights", in support of its claim that
testing is not permitted, at least to the extent relied upon by the County here. Article XV
15.1 It shall be the policy of the Employer to recognize
15.2 Seniority shall be defined for purposes of the Agreement
as the net credited service
of the employee. Net credited service shall mean continuous employment in the
County, beginning with the date on which the Employee began to work after last
being hired. However, it is understood that job posting preference shall be given
first to department seniority and then to County seniority. The department
seniority shall be defined as net credited service within the department.
Department and County seniority shall not include unpaid leaves of absence.
. . .
15.6 Seniority shall apply in promotions, transfers, layoffs,
recall from layoff and
vacation selection as hereinafter provided.
15.7 Job Posting. Whenever a vacancy
occurs which Management desires to fill or it
is known that a new job will be created, the following procedure shall apply:
15.71 The job vacancy shall be posted on union bulletin
for a period of five (5)
workdays and Employees may apply for such postings during this period.
15.72 Selection of applicants to fill job vacancies shall be
determined by the Employee's
skill, ability and seniority. Where all factors are relatively equal, the Employee
with the greatest seniority shall be entitled to preference.
15.73 When objections are made by the Employer
qualifications of an
Employee to fill a position, such objections shall be presented to the Union
Committee for consideration. If there is any difference of opinion regarding the
qualifications of an Employee, the Union may take the matter up for adjustment
under the grievance procedure contained in Article XVI of this Agreement.
15.74 The County Personnel Director may make
assignments to the position
until any dispute with respect to those positions is resolved.
This language restricts the County's unfettered discretion to promote employes
mandates that seniority must be considered when employes bid for a posted position and
it provides: "Where all factors are relatively equal, the Employee with the greatest seniority
be entitled to preference."
However, there is nothing in this part of the contract - or any other part of the
that matter - which expressly prohibits the County from administering tests for promotional
opportunities. As a result, the County can test employes pursuant to the management rights
are reserved to it in Article III, supra.
The Union nevertheless claims that a shorthand test was improper here because this
the first time that a steno test was administered and because shorthand only represents a
amount of the work that an Administrative Assistant must perform.
The record shows otherwise. Corporation Counsel John F. Corey testified that when
was an Assistant Corporation Counsel, he regularly asked the then-Administrative Assistant
shorthand over the telephone and that he asked her to do so about 150-200 times a year.
also said that the Administrative Assistant must regularly fill in for the Corporation
Secretary when she is absent and that she at that time must be able to take dictation. Corey
that Assistant Corporation Counsels at present also regularly utilize the shorthand skills of
For her part, Lemke testified about the many times where she has been required to
dictation and County Exhibit 2 reflects some of those instances. In addition, Assistant
Corporation Counsel Joseph Ruf, III, testified that he regularly dictates most of his work
taking dictation in longhand would not work.
Given this testimony, I find that stenographic skills are hardly "minimal" and that, as
result, the County could legitimately reject applicants who failed to meet the posted
that they take 100 words per minute.
The Union also argues that the County never before administered a steno test and that
did so here only in order to secure Lemke's hire. The record shows that former Legal
Harkins worked as a Legal Secretary for about 10 years before her hire and that she was
completely proficient in taking steno notes. As a result, the County legitimately concluded
there was no need to test her for this skill. In addition, Bobholz took and passed such a test
she was initially hired in the late 1950's. Marx never took a steno test when she worked in
Juvenile Office as a Legal Secretary about 10 years ago. That job, though, is different from
one here because taking steno is such an essential part of the Administrative Assistant's
Given all this, I conclude that the County did not err when it insisted that applicants for this
position had to take a steno test.
The Union also complains that the County did not measure all of the listed job
requirements and qualifications and that it excluded applicants only because they failed to
one of the job's requirements - i.e. the ability to take steno. It is up to an employer,
to determine whether it will administer a test for each and every component of a job, just as
up to an employer to determine whether an applicant's failure to perform an essential skill
outweighs an applicant's ability to perform all other skills. Moreover, even assuming
that the County failed to properly test for all aspects of the Administrative Assistant's
Lemke was the only applicant who is proficient in taking steno. That being so,
the County was
free to award her that position since she had previously worked as a legal secretary for
attorney, thereby showing that she had some mastery of a legal secretary's job.
Contrary to the Union's claim, the County therefore did not violate the principle
enunciated in How Arbitration Works, supra, p. 851, to the effect
that: "the employer may not
base its determination of ability solely upon the results of a test but must consider other
and evidence." [footnote citation omitted] For this quoted principle goes to a
separate issue; i.e.
whether an employer can refuse to promote an employe without looking at an employe's
other on-the-job qualifications and experience. That is a separate question of whether an
employe can be
denied a promotion where said employe: (1), has not demonstrated any
on-the-job experience in
taking steno; and (2), fails to pass a steno test. In other words, if an employe in the past has
demonstrated any experience or ability to do a particular job function, an employer is
free to test for that function where, as here, it is an integral part of an Administrative
overall job duties.
The Union also asserts that the County erred in administering a steno test because the
Administrative Assistant posting did not refer to any testing requirement. In this connection,
Personnel Analyst Marlene Zarling testified that County postings hardly ever refer to any
requirements; that the Union in the past has never complained over that fact; and that
for all technical support jobs that require typing must take a typing test.
Zarling's testimony establishes that the County here followed the same testing notice
for different jobs) that it has followed in the past and that the Union before now never
about it. Absent any such prior objection, and absent any contract language requiring the
to post any testing requirement, the County did not violate the contract when it followed that
The Union argues otherwise by citing my ruling in Marinette County Courthouse
Union, Local 1752, AFL-CIO v. Marinette County, Case 159, No. 54301, MA-9650 (Greco,
9/97), wherein I ruled that the employer there was required to include a testing requirement
posting for a Human Services Intake position. There, though, there was no well-established
practice showing that the employer in the past had a history of not including a testing
in its job postings. Here, by contrast, the Employer on about thirty or so occasions has
jobs without stating that a test would be administered. This question of past practice is
because it shows how the parties have effectively administered contractual job posting
That is why - absent clear language in the contract - notice of testing may be required in one
setting, but not in another.
However, the County came very close to violating the contract when it failed to tell
applicants ahead of time that they would be taking a steno test. Thus, Deck testified without
contradiction that she was told about the test only when she showed up to take a typing test.
County's failure to tell her about the steno test before then therefore prevented
her from practicing
for the steno test ahead of time, which was something she certainly was entitled to do.
If the County's failure were prejudicial to Deck's right to be fairly considered for the
Administrative Assistant's position, the grievance would be sustained on this basis alone.
for the County, though, Deck was honest enough to admit that she cannot pass a test
speed of 100 words a minute and that: "I don't use it [i.e. steno skills] enough that I'm
at it." Given this admission, the County's actions cannot be overturned because of its failure
give Deck sufficient time to prepare for its unannounced steno test. Nonetheless, the County
being put on notice via this decision that it will be skating on very thin ice if it ever again
give employes sufficient preparation time before giving them a proficiency test.
Marx - who said she never needed any steno skills when she formerly worked as a
Secretary in the Corporation Counsel's office - also has a legitimate basis for complaining
initially was told by Corporation Counsel Corey and Zarling that she would be interviewed
the job even though she had refused to take the steno test because she knew that she would
pass it. Having promised that interview, the County certainly should have kept its word by
least giving her the courtesy of an interview. Courtesy, after all, is something that should be
accorded to each and every employe even though it is not mandated in the contract. Its
do so here, however, did not violate the contract because an employer generally is not
to interview job applicants who refuse to take an appropriate test, as any such refusal
automatically disqualifies them from further consideration.
The Union also asserts that the entire posting here was flawed because Shirley
now the Corporation Counsel's Secretary, is a client of Lemke's hairdresser husband,
Lemke. 2 The record, though, does not bear
out this claim since Bobholz credibly testified that
she did not try to influence Lemke's hiring and since there is not one iota of evidence in this
record showing otherwise. 3
Having determined all of the above, one final word is necessary: while the County
required to list a testing requirement on its posting, it would have been far better for it to
done so since that would have obviated the Union's claims that the testing was added only to
Lemke and to disqualify the other applicants. While the Union's claim is without merit for
reasons stated above, it is entirely possible that similar suspicion may arise in the future if
situation is ever repeated. That is why it is in the County's own self-interest to list
requirements in any future postings. But, since I do not have the power to require the
provide such information, it is up to the County to decide for itself whether it should follow
In light of the above, it is my
That the County did not violate Article XV of the contract when it awarded the
Administrative Assistant position to Carol Lemke; the grievance is therefore denied.
Dated at Madison, Wisconsin, this 23rd day of February, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator
1. Unless otherwise stated, all dates hereinafter refer to
2. Bobholz also testified that she had to take dictation on
a "daily basis" when she formerly
served as the Administrative Assistant.
3. This also is why there is no merit to the Union's claim
that the testing requirement was
instituted after the posting period was completed, as Zarling credibly testified that the
test was made before the posting.