BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MARINETTE COUNTY (COURTHOUSE)
EMPLOYEES, LOCAL 1752, AFSCME
Mr. David A. Campshure, Staff Representative, AFSCME,
Council 40, 1566 Lynwood Lane,
Green Bay, WI 54311, for the Union.
Mr. Frank M. Ganzlmar, Human Resource Director, Marinette
County, 1926 Hall Avenue,
Marinette, WI 54143-1728, for the Employer.
The Marinette County Courthouse Employees Union, Local 1752, AFSCME,
referred to as the Union, and Marinette County, hereinafter referred to as the Employer or
County, are parties to a collective bargaining agreement which provides for the final and
arbitration of grievances arising thereunder. The Union made a request, with the
concurrence of the
Employer, that the Wisconsin Employment Relations Commission designate a commissioner
member of its staff to hear and decide a grievance filed by the Union. The undersigned was
designated. A hearing was held in Marinette on August 12, 1998, and was transcribed. The
filed post-hearing briefs and reply briefs. The record was closed on December 2,
The Union frames the issue as follows:
Did the County violate the parties' collective bargaining agreement, when it paid
Lantagne at the Range D rate of pay because it failed to submit the Niagara
position to the Reclassification Committee for re-evaluation after the experience
requirements for the
position were increased? If so, what is the appropriate remedy?
The County states the issue as follows:
Did the County violate the parties' collective bargaining agreement, when it paid
Lantagne at the Range D rate of pay? If so, what is the appropriate remedy?
I adopt the County's statement of the issue.
5.02. Filling a New Job or
Vacancy. A new job or vacancy within the County shall be filled
Posted on the County bulletin board
five (5) working days before the job operation begins. Said
posting shall contain the job requirements, qualifications and starting rate of pay;
Copy furnished to the Union
Employee desiring posted jobs will
sign the posted notice or make a written application to the
department head concerned.
5.03 Awarding Bid on New Job or
Vacancy. At the end of the bidding period, the vacancy
or new job will be awarded on the basis of the following provisions:
The department head shall confirm
with the Union secretary the posted names.
Bargaining unit employees from the
department in which the vacancy exists shall have the first
opportunity to fill the position if qualified.
If no bargaining unit Employee
from the department applies or qualifies, it shall be open to any
bargaining unit Employee from any department if s/he is qualified.
A) If no bargaining unit
Employee bids on the posted job and is qualified, the County shall have
the right to recruit personnel from outside the workforce.
The bargaining unit Employee shall
demonstrate h/er ability to perform the job posted within thirty
(30) days for Group B and sixty (60) days for Group A employees, and if deemed qualified
by the Employer, shall be permanently assigned the job. Should such Employee not qualify
or should s/he desire to return to h/er former job, s/he shall be reassigned to h/er former job
without loss of seniority.
In the event it becomes necessary
to discontinue or suspend a job for a period of time, a notice to that
effect shall be posted immediately, and a copy furnished to the Union.
In contested cases, the County
agrees to provide proposed designated Union representatives with
sufficient information to show that the selected individuals made a timely and proper
application during the posting period.
Reclassification shall not be considered a vacancy and
posting shall not be required.
25.01 Limited Term
Employee(s) (LTE): A) An LTE is one who is hired for a period not to
exceed ninety (90) days and who shall be separated on or before the end of said period;
should a temporary Employee be continued in employment or be rehired within ninety (90)
following the termination of h/er temporary employment, the period of h/er temporary
shall be considered toward fulfilling h/er probationary period. A limited term Employee's
employment shall not exceed ninety (90) days unless s/he becomes a permanent employee
application for a permanent position from a job posting. An extension of up to one (1)
month for the
term of a temporary LTE's employment will be allowed. The Employer will provide a list
Employees, including the hire date of said LTE's and update said list. An LTE hired for the
Assistance Program shall be limited to one-hundred eighty (180) days. No more than two (2)
Assistance Program LTE's shall be hired. There shall be no extension of the 180 days.
Appendix A - 1995, 96, 97 Wages, pp. 21-23 (annexed hereto as
Appendix A - Listing of all Courthouse
Employees Pay Ranges (annexed hereto as Exhibit B).
Appendix B - Rules for the Administration
of the Classification and Compensation Plan,
Paragraph 1, c) (Successful Bidders) and Paragraph 5 (Reclassification Requests and
Process) - (annexed hereto as Exhibit C).
Both parties agree to the essential facts. On February 7, 1994, some three weeks
grievant, Jean Lantagne, had been hired as a temporary secretary/receptionist for the Niagara
of the Marinette County Human Services department, she was hired as a permanent
perform the same job responsibilities. The permanent position Ms. Lantagne was hired to
fill was a
newly created one, duly created by the County, and both posted and advertised in a local
Both the notice and the ad correctly described the position title and pay. The pay fell in a
described in the Collective Bargaining Agreement between the parties as Range D.
The qualifications for the position were also correctly listed, except that the job
and ad that was published recited that any applicant "must have at least 1 year of general
experience." This was contrary to the determination of the Courthouse Job Evaluation
that applicants for the position need have prior experience of "less than one year."
The Courthouse Job Evaluation is a six person committee, three of whose members
appointed by the Union and three of who are appointed by the County. Under the procedure
by the County, all newly created County positions are referred to this Job Evaluation
Committee. Various factors of the position being evaluated (including any prior
are quantified into points. The points are totaled, and the final sum determines the pay
range for the
In the instant case, the Job Evaluation Committee determined that the new position
secretary/receptionist for the County's Human Services office in Niagara required less than
previous experience. The total points for the new position added up to a placement of the
in Pay Range D..
For reasons that do not appear in the record, a County personnel "coordinator"
qualification to "must have at least one year of general experience." Had this
made by the Courthouse Job Evaluation Committee, the higher experience required would
generated enough additional points for the position to be assigned Pay Range E, a higher
pay range to which the position was assigned, however, remained as Range D (which was
with the Committee's mandate).
It is clear that this change was made at the sole volition of the coordinator who
the authority nor was directed by anyone to make this change. It is also undisputed that the
Courthouse Job Evaluation Committee had no knowledge of the personnel coordinator's
Although this coordinator was not disciplined in writing for her action, the County
with her privately (after the fact), advised her that she lacked any authority to make changes
kind, and warned her not to do it again. The coordinator is no longer employed by the
her employment termination was not related to this incident.
On June 6 and 7, 1995, the Courthouse Job Evaluation Committee reviewed one-third
the Courthouse Union jobs as listed in Appendix A of the (then) current Union contract."
12). The Committee's review included a reevaluation of Ms. Lantagne's position in the
office. It increased the position's "Supervision Work Direction Required" factor from Level
Level B (worth an additional 34 points) and also increased the "Minimum Experience
Level A to Level B (worth an additional 25 points). A Level B "minimum Experience
factor is "1 - 2 years."
These point increases enabled Ms. Lantagne's position to be lifted from Pay Range D
to Pay Range
F. The pay range increase was prospective, however, to January 1, 1996.
The grievant believes that the original change made by the personnel coordinator
resulted in 25 more points being awarded to her position ab initio. This
would have given the
position a total of 392 points and placed it in Pay Range E. The grievant seeks the
between what she was paid and what she would have been paid if the pay range been
from D to E.
Initially, the County denied this matter was subject to the grievance process. That
went to hearing before Examiner Raleigh Jones of the Wisconsin Employment Relations
Examiner Jones ruled the matter was subject to the grievance process of the parties'
POSITIONS OF THE PARTIES
The Union first argues that altering the position description after the Committee has
a position, but before it is posted "blatantly circumvents the intent of the language contained
Appendix B, Section 5. The Union believes that after the Personnel Coordinator changed
experience requirement, the position should have been reevaluated by the Committee. Had
done, the Union asserts the position would have gone from a Pay Range D to a Pay Range
The Union next contends that the Personnel Coordinator is an agent of County
and the County is bound by the acts of its agents. The Union argues that finding for the
this matter "would be a green light for the County to alter job requirements and descriptions
positions have been evaluated by the Committee." Following this line of argument, the
that "(i)t would also be a signal to the County that it can resolve problems by simply
itself of any and all decisions made by its agents."
Furthermore, according to the Union, the Personnel Coordinator was cloaked with
or "actual" authority. The Union notes that the Personnel Coordinator was not disciplined
for her transgression, but merely told not to do it again. This seems to the Union to indicate
Personnel Coordinator "did not grossly exceed her authority." Citing several arbitration
which the representations of management personnel to employees were held to be binding,
though the management personnel making those representations exceeded their authority, the
argues that the action of the Personnel Coordinator in the instant case must be imputed to the
Finally, the Union posits that the posting and advertising of the position with the
minimum experience requirement was not the result of a "clerical error," as claimed by the
It was, instead, according to the Union, "an error in judgment by a member of
Because of that error, states the Union, only applicants with at least one year's experience
considered. Consequently, the Union concludes, the County is bound by this error of
must be held to pay the grievant on the basis of the qualifications actually used when filling
The Union requests the Arbitrator to sustain the grievance and make the grievant
Union's proposed remedy includes an order to the County to pay the grievant the difference
between Ranges D and E from her date of hire (February 7, 1994) to January 1, 1996 (the
position moved to Range F).
Position of the County
The County argues that the Personnel Coordinator had "absolutely no authority" to
any factors which determine an overall point value for a position, and characterizes her
action as a
"clerical error." Furthermore, posits the County, " . . . it is the Evaluation Committee that
the pay rate, not the job advertisement."
In response to the Union's demand that the grievant be made whole, the County
the grievant has never been less than whole. The County points out that the rate of pay for
position was correctly stated and known to the grievant when she accepted the position. The
grievant, says the County, has been consistently paid the rate for her position that was
established by the Evaluation Committee. Management was never aware of the unilateral
taken by the personnel coordinator until the grievance in this matter was filed.
The County notes that the process for job evaluations was a joint effort by the
negotiated and memorialized in the collective bargaining agreement. Under this process, the
states, the parties intended that only prospective, not retroactive, pay adjustments be made.
this rationale, the County believes the only remedy for an employee who disagree with how
his or her
position was rated lies in the reevaluation process.
Reply of the Union
In reply, the Union disagrees with the County's characterization of the action of the
coordinator as a "clerical error." The truth is, according to the Union, that the personnel
coordinator, " . . .as a part of management, exercised judgment (poor as it was) by altering
The Union believes that the grievant's knowledge of the proposed rate of pay for the
when she accepted the position is totally irrelevant. The union argues that if the County
position in Pay Range F when in fact it had received a pay range H designation by the
under the County's logic the successful applicant for the position would be bound to the
if he or she had been aware of it when accepting the position.
The Union does not take serious issue with the County's contention that the County
Administrator was unaware of the change made by the personnel coordinator. Nonetheless,
maintains the Union, the principles of agency require that the County be bound by the
coordinator's action. Her action, states the Union, must be imputed to the County. The
asserts that the personnel coordinator was not formally reprimanded for her action, and
this constitutes evidence that she did not greatly overstep her bounds.
The Union takes issue with the County's contention that a ruling in favor of the
would severely compromise the job evaluation process that the Union and ,management
to put into place. On the contrary, the Union argues, sustaining the grievance would
process by sending a message to the County that it cannot alter job requirements after the
has evaluated a position.
The Union also takes issue with the County's argument that sustaining the grievance
"add retroactivity and an appeal process never bargained for by the parties." The Union
statement is misleading in that "(t)he instant grievance is not an appeal of the Committee's
but a complaint regarding the County's actions in not resubmitting the position to the
altering job requirements."
The Union maintains that since the grievant was hired on the basis of a stricter
experience requirement, it is only by granting her a retroactive pay award that she can be
The County should pay for the mistake made by one of its employees, argues the Union, not
In conclusion, the Union reiterated its view that the County violated Appendix B,
of the parties' collective bargaining agreement. The Union believes the violation consisted of
County's failure to send the Secretary/Receptionist position of the Niagara Human Services
back to the Committee for evaluation after the minimum experience factor was increased by
employee and the successful applicant hired and paid on the basis of a pay range predicated
lower experience factor.
Reply of the County
In response, the County reasserts its view that the personnel coordinator was not an
county management. The County reiterates that its management had never condoned the
the personnel coordinator, and denies it has any interest or intent to alter job descriptions
Both parties agree that the action of the County's personnel coordinator in changing
minimum experience factor for the Secretary/Receptionist position was a mistake. The
characterizes it as a "clerical error;" the Union, as poor judgment.
I am inclined to the latter view. In my view, the personnel coordinator's action
professional ineptness produced by either arrogance, ignorance, or naiveté. That it
was likely well-intentioned is immaterial. In fact, it was accomplished without direction,
or knowledge of any County official. Under these circumstances, the disciplinary restraint
exercised by the coordinator's immediate supervisor, the County Administrator, following
of the "mistake" is remarkable.
Contrary to the assertions of the Union, however, that restraint does not transform
vires action of the Personnel Coordinator into one which binds the County to its
It is clear that the personnel coordinator was never granted any authority to alter or
any work product of the Courthouse Job Evaluation Committee. Her responsibility in this
was limited to clerical tasks: posting the job notice and causing it to be published in a
newspaper. Obviously, she exceeded her authority. The apparent lenience of the County
Administrator in dealing with her following discovery of her unauthorized action cannot
a retroactive legitimization of the action.
But the Union further contends that the Personnel Coordinator's knowledge of her
must be imputed to the County. Yet, absent any showing that the Personnel Coordinator was
directed to make the change in the job requirement or was invested with independent
to the management and direction of County government affairs in matters of this sort,
her action in this instance cannot be fairly imputed to the County. The record demonstrates
employee worked under supervision, not independently. She was neither directed to take the
she took, nor accorded even a whisper of authority sufficient to override a Committee
Accordingly, her action must be viewed as an unauthorized aberration of which the County
Moreover, if the issue were whether the County were liable for payment to the
which ran the altered job advertisement, the "apparent authority" of the person placing the ad
behalf of the County would be both relevant and material. In the matter at hand, however,
"apparent authority" of the Personnel Coordinator is neither relevant nor material, for it does
appear that the grievant placed any reliance on the altered "previous experience" factor,
perhaps, to note that she qualified under it.
In other words, the grievant was not injured by the "mistake." Arguably, other
applicants who were deterred from making application for the Secretary/Receptionist position
erroneously upgraded "previous experience" factor could claim "injury" by the personnel
coordinator's unauthorized action. Arguably, the members of the Courthouse Job
Committee also suffered "injury" in that their lawful deliberations and conclusions were
But the grievant cannot complain. The personnel coordinator did not attempt to
Committee's determination of the proper Pay Range for the position. That remained as
the Committee. The grievant was aware of the salary assigned to the position for which she
That was apparently acceptable to her. She accepted the position and was paid the salary she
anticipated (and which had been noticed) when she applied for the position. 1
Moreover, there is no evidence that even the Personnel Coordinator had any intention
altering the Committee's determination as to which Pay Range the position should be
is entirely possible that she merely intended to increase the "previous experience"
altering the pay range assignment, and did not recognize the conflict this alternative would
In any event, absent any actual or apparent authority, her intent is both speculative and
The Union argues that after the Personnel Coordinator increased the experience
for the job, the position should have been returned to the Courthouse Job Evaluation
reevaluation. But even assuming arguendo that the County had fortuitously
learned of the Personnel
Coordinator's "mistake" and referred the matter back to the Committee, it is by no means
the Committee would have concurred with the Personnel Coordinator's opinion. Indeed, the
converse, i.e., reinstating the Committee's original "previous experience" factor, seems to
me to be
the more likely course the Committee would have taken. After all, the Committee had just
the position and reached its conclusions. The Committee would have also been
aware that making the change proposed by the Personnel Coordinator would require
position to a higher Pay Range. Other than the apparent differing personal opinion of the
Coordinator (of which the Committee may even have been aware in the first instance) there
simply no evidence or data that suggested any such change was necessary at that time.
Thus, I am not persuaded that the County violated Appendix B, Section 5 of the
bargaining agreement because it failed to have the position in question reevaluated after the
coordinator unilaterally increased the "previous experience" factor of the job. I do not
the County could have accomplished such reevaluation: no change had been authorized or
none of its responsible officers were aware of the change until after this grievance was filed.
circumstances, coupled to my unwillingness to impute to the County the personnel
knowledge of the unauthorized change she'd made, leads me to believe that there was no
action the County could have taken until one of its officers learned of the change.
Accordingly, I find that the County did not violate the parties' collective
agreement when it paid Jeanne Lantagne at the Range D rate of pay.
The grievance is denied and hereby dismissed.
Dated at Madison, Wisconsin this 12th day of March, 1998.
A. Henry Hempe, Arbitrator
1. I do not mean to suggest that the grievant's awareness
and acceptance of the salary
to be paid her
is entirely determinative of this matter, for they go only to the issue of "apparent authority."
instance, the Personnel Coordinator, had understated the Committee's pay range
the position, that "mistake" is not only correctable but should be corrected upon discovery,
the successful applicant had accepted the lower pay. The point is that under the collective
agreement of the parties only the Committee had the right to create job requirements, duties,
conditions. Any unauthorized action that interferes with this authority is simply illicit and