BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME COUNCIL 40, LOCAL 2239,
THE CITY OF RACINE
Mr. John P. Maglio, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, P.O.
Box 624, Racine, Wisconsin 53401-0624, appeared on behalf of the Union.
Mr. Guadalupe G. Villarreal, Deputy City Attorney, City of
Racine, 730 Washington Avenue,
Racine, Wisconsin 53403, appeared on behalf of the City.
On January 22, 1997, the Wisconsin Employment Relations Commission received a
from AFSCME Council 40, Local 2239 and the City of Racine to appoint William C.
a member of its staff, to hear and decide a grievance pending between the parties. An
hearing was conducted on June 3, 1997 in Racine, Wisconsin. A transcript of the
made and distributed by July 8, 1997. Post-hearing briefs were submitted and exchanged by
September 8, 1997.
This arbitration addresses the City's refusal to promote bargaining unit employe
On September 4, 1996, the City posted a position titled "Payroll Technician", a
newly-created position assigned to the City's Finance Department. As part of a departmental
reorganization, the position of Payroll Supervisor, previously held by Helen Nelson, was
abolished following Ms. Nelson's retirement. The position of Payroll Clerk had traditionally
reported to the payroll supervisor. With the abolition of the supervisor position, the Payroll
positions were upgraded to Payroll Technicians. The newly-created Technician positions
expected to operate far more independently than did the previous payroll clerk.
Additionally, with the anticipated evolution of the department, certain manual
routines, and tasks historically practiced were to be automated out of existence. In
new Payroll Technician position, Department Head Jerome Maller anticipated a position with
greater systems-wide experience than had previously been required.
The posting brought forth a number of applicants, the most senior of whom was the
grievant, Janice Johnson-Martin. Ms. Johnson-Martin has been employed by the City, in a
of jobs, since November 11, 1985. Ms. Johnson-Martin was interviewed by Maller, his
Mr. DeBonis, and William Dyess, the Personnel/Affirmative Action officer of the City. At
conclusion of the interview, Ms. Johnson-Martin was considered qualified by Mr. Dyess, but
considered unqualified by Mr. Maller. 1
Subsequent to the interview, Mr. Maller sent a
indicating that no applicant had met the minimum standards required by the job and seeking
expand the search outside the bargaining unit. That request was denied by the City
On September 30, 1996, the Union filed a grievance alleging a violation of the
The posting for the Payroll Technician consisted of the following:
Date: September 4,
Mon-Fri; 8 AM - 5 PM (Normal Schedule)
Classification ($11.33/hr. - $13.52/hr.)
Responsible for the compiling and entry of payroll
data from time cards or other
forms of time reports. Maintains departmental reporting of hours and payroll reports through
computerized record keeping. Audits payroll data to maintain internal control and accuracy.
Schedules and coordinates batches of inputted data for processing. Reconciles computer
to maintain accounting and payroll integrity. Assists Accountant III in the preparation of
reports. Records and reconciles labor distribution for general ledger entry. Compiles
time and hour reports for Personnel Department. Prepares and verifies various Federal and
payroll returns and reports. Prepares and distributes time reporting sheets and payroll
Prepares various deferred compensation, insurance, savings reports, and Federal and State
depository returns. Compiles wage and hour data for workers,
compensation returns, for submittal to Personnel Department. Prepares requests for payment
payrolls, tax deposits, payments for credit unions, Christmas and Bond savings, wage
assignments, deferred compensation, and other deductions. Maintains a consistent and
attendance record. Performs related clerical assignments as assigned.
Possess and maintain professional appearance and
work ethics, with ability to
establish effective working relationships with other employees and the public. Knowledge of
municipal governmental organization. High school degree or equivalent. Two year
degree in accounting preferred. Work experience desired, five years of mid level payroll
personnel experience. Knowledgeable in word processing and spreadsheet applications.
should be familiar with mainframe processing. Must possess confidence and ability to take
of difficult situations by anticipating problems and analyzing alternative solutions. Must be
accurate in the use of mathematics. Ability to work in a complex and demanding
and be willing to accept cross training. Must display leadership and future supervisory
Standing, walking, sitting and stooping.
Kneeling, crouching, climbing, balancing
and bending/twisting. Reaching, feeling, talking and hearing. Lifting, carrying,
-- up to at least 25 lbs. Handling, grasping, and fingering: filing, typing, writing, etc.
Air-conditioned office environment. Must be able
to work long periods of data
entry, sometimes under stressful conditions. Requires some overtime hours.
Personal computer, typewriter, fax machine,
calculator, telephone, copy machine,
and other miscellaneous office equipment presently in use.
. . .
Ms. Johnson-Martin testified, comparing her background, skills and experience
various criteria laid out in the promotional opportunities announcement. It was her testimony
with two exceptions, she performed some or all of the tasks deemed essential. She has not
previously worked with federal or state payrolls, nor has she prepared requests for payment
payrolls, tax deposits, payments for credit unions, Christmas and Bond savings, wage
assignments, deferred compensation, and other deductions. Ms. Johnson-Martin expressed
confidence that with training she could perform those tasks and all others included within the
Ms. Johnson-Martin further testified relative to her background measured against the
minimum qualifications portion of the announcement. It was her testimony that she
qualifications with two exceptions. Those exceptions included the two-year degree and the
familiarity with mainframe processing. Again, Ms. Johnson-Martin expressed confidence
with training she could handle the assignment.
Ms. Johnson-Martin believes she has the background and aptitude to be trainable for
Payroll Technician position. She notes that both she and others have historically been trained
promotional opportunities. All testimony indicated that the department will be training staff
the payroll system evolves. Ms. Johnson-Martin's testimony in this regard was supported by
of William Dyess who indicated that she was qualified for the assignment and trainable for
tasks with which she was unfamiliar. Ms. Johnson-Martin's testimony was also supported by
of Helen Nelson, the prior Payroll Supervisor, who testified that she (Nelson) required
in order to perform all of her duties when she got the job of payroll supervisor. Nelson
testified that she had worked with Ms. Johnson-Martin and found her to be both competent
conscientious. Nelson testified that Johnson-Martin was qualified to do the job, and would
good job. It was Nelson's testimony that Ms. Johnson-Martin did virtually everything that
required on the job description of the Payroll Technician.
Jerome Maller testified. It was his testimony that Ms. Johnson-Martin lacked both
two-year degree and the job-related work experience. According to Maller, those were the
predominant criteria lacking. Maller's testimony was that the various tasks of the payroll
department would be evolving and changing and he was therefore not particularly interested
task familiarity. Maller was in search of someone with a background in payroll and the
of payroll, and indicated, "First of all, the job requires a knowledge of payroll accounting.
data entry that is performed is performed by a data entry clerk at this point. It is true that
Payroll Technician must understand and know how to enter the payroll data entry. The basic
understanding of the payroll is to be familiar with payroll laws, procedures of the contract,
scheduling on a mainframe, working on a PC, on spreadsheets, and understanding the
deductions and the resulting reporting that has to take place over a period of time."
p. 123). Maller wanted someone who could "come into the position up and running".
(Tr. at p.
The parties were unable to stipulate the issue. I regard the issue to be:
Did the City violate the collective bargaining agreement when it
failed to promote Janice
Johnson-Martin to the position of Payroll Technician? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
The City possesses the sole right to operate City
government and all management
rights repose in it, but such rights must be exercised consistently with the other provisions of
contract and the past practices in the departments covered by the terms of this Agreement
such past practices are modified by this Agreement, or by the City under rights conferred
it by this Agreement, or the work rules established by the City of Racine. These rights
normally exercised by the various department heads include, but are not limited to the
1. To direct all operations of City government;
2. To hire, promote, transfer, assign and retain employees
in positions with the City
and to suspend, demote, discharge, or take other disciplinary action against
employees for just cause.
. . .
5. To introduce new or improved methods or facilities.
. . .
8. To determine the methods, means
and personnel by which such operations are to
. . .
. . .
B. Recognition of Principle: The Employer
recognizes the principle of seniority and the
Union recognizes the need for maintaining an efficient work force. In all matters involving
increase or decrease of forces, layoffs, or promotions, the length of continuous service with
Employer shall be given primary consideration. Skill, ability and efficiency shall be taken
consideration only where they substantially outweigh considerations of length of service, or
the most senior employee is unable to do the work. To prove qualified, the employee must
demonstrate ability to do the job within thirty (30) calendar days. An employee shall not
seniority benefits unless he/she becomes a regular full-time employee.
C. Notification: In the event the senior
employee is not chosen, the Personnel Director shall
give an explanation in writing to such senior employee and the Union stating the reason for
not being chosen.
. . .
A. Posting Procedure: Any job vacancy which
occurs due to retirement, quit, death,
new position or for whatever reason in the bargaining unit shall be posted.
The posting shall set forth the job title, duties and
desired, rate of pay, work
location or assignment and shift. Sufficient space shall be provided for employees to sign
for said job posting.
All job openings within the province of the bargaining unit
be posted for five (5)
working days in overlapping consecutive weeks. The successful bidder or the Union shall be
notified within five (5) work days after the close of the posting.
The City agrees to move the successful bidder to his/her new
position as quickly as
possible but in no event later than thirty (30) calendar days after notification of his/her
The job posting for any classification shall remain in effect
ninety (90) days following
the award of the posted job and shall govern, without any reposting, any job openings
within said ninety (90) day period in that job classification.
B. In accordance with Article XII, Seniority, total
bargaining unit seniority shall
prevail in all job postings except for shift changes which will be based upon classification
seniority. Shift changes shall not be subject to Sections C and/or D below.
C. Probationary Period: Employees working
on a job obtained through job posting
shall serve a thirty (30) calendar day probationary period and shall be guaranteed the right to
return to his/her previous job should his/her ability to handle the new work prove
within this probationary period. This provision shall also apply to employees from the Police
Department Unit who post for and are awarded a job in this unit.
D. Return to Previous Job: If within thirty
calendar days the employee is
dissatisfied with the posted job and wishes to return to his/her previous job, the Employer
have the right to request the employee to remain on the job until such a time as the job is
posted and filled. At no time shall this time exceed thirty (30) calendar days. In order for a
Union employee to change jobs or classifications while still in a probationary status, he/she
return to his/her previous job classification. This provision shall also apply to employees
the Police Department Unit who post for and are awarded a job in this unit.
. . .
The City reserves the right to establish reasonable testing
procedures to be used to
determine the ability of the employee to do the job on any promotion.
. . .
The Union pledges that it will cooperate with the City in a
concerted effort for more
production consistent with the highest quality of workmanship.
. . .
POSITIONS OF THE
It is the position of the Union that Janice Johnson-Martin is the senior qualified
for the position. The Union extensively reviewed Ms. Johnson-Martin's testimony and notes
she gave substantial testimony and detailed examples of how she handled various facets of
posted job. The Union notes that she performed many of the tasks listed in the Payroll
announcement and further notes that the two-year Associate degree in Accounting is
not required. The Union contends that at various points in her career, Ms. Johnson-Martin
been required to work independently. It also notes that the City trained her, and numerous
under promotional circumstances.
The Union contends that management representatives, specifically William Dyess,
determined that Ms. Johnson-Martin is qualified. The Union points to testimony by Mr.
that he regarded her as qualified, and that he considered her to have more than five years of
payroll experience. The Union further points to Dyess' testimony that all job applicants
new positions require some training.
The Union contends that the City violated the posting procedure when it failed to
the job to Ms. Johnson-Martin. The Union points to Article XII, Section C requiring the
notify the senior applicant in writing if he or she is not awarded a position and to explain the
reason for the rejection. That provision was simply never satisfied. The Union further
Article IV, Testing, which permits the City to establish qualifications via reasonable testing.
tests were administered.
The Union concludes that Ms. Johnson-Martin is an articulate, well-qualified and
employe. The Union argues that at no time did the City advance any other applicant for the
position, let alone one whose skill, ability and efficiency substantially outweigh Ms.
Johnson-Martin's seniority. It is the Union's view that she is entitled to the position. The
Union asks that
the undersigned award her the position of Payroll Technician and make her whole to October
1996 for lost wages or benefits.
The Employer points to the reorganization of the finance department, the elimination
the Payroll Supervisor position, and the elevation of the Payroll Clerk's position to Payroll
Technician. The enhanced position includes a pay increase as well as a minimum
requirement which includes a two-year Associate degree in Accounting or five years of
payroll experience. The Employer points out that the newly-created position will be required
work with minimal direct supervision. The increased compensation is a by-product of the
increased job responsibility.
It was determined by the Finance Director that none of the posting candidates
the required experience and education to assume the position of Payroll Technician. The
Employer points to Maller's testimony that it is not possible to train Ms. Johnson-Martin due
the lack of formal education and experience. The Employer contends that Maller is the most
qualified person to make a determination as to what is needed to do the job, and in essence
contends that I should defer to Maller's judgement.
Articles XII and XIII regulate the promotional process applicable to bargaining unit
positions. Under the provisions of Article XII, the senior employe is entitled to primary
consideration for procedural opportunity. Skill, ability and efficiency are contractual
considerations applicable when they substantially outweigh seniority. Those criteria are not
applicable in this dispute, there is no junior candidate being considered. I believe the skill
and efficiency criteria to apply when measuring a high-skilled junior employe versus a
lesser-skilled senior employe. That is simply not the fact in this dispute. What is at issue in
proceeding is whether a senior employe is "unable to do the work."
The Union says she is capable of performing the work. It was the testimony of the
Grievant that her work experience encompassed most, if not all, of the essential duties of the
position. Ms. Johnson-Martin testified that over the course of her several years with the
Employer, she has actually performed a great number of the tasks which constitute the posted
position. My impression of Ms. Johnson-Martin is that she works hard and displays a
to learn. Ms. Johnson-Martin's testimony, while obviously self-serving, was supported by
record. Her performance evaluations ran from better than average to outstanding. The
of Mr. Dyess and Ms. Nelson supported her claim in its entirety.
It is the City's contention that Ms. Johnson-Martin cannot do the job. Mr. Maller
indicated that he was searching for someone whose educational and experience background
more formal and systemic. Maller wanted someone who better understood the big picture
who could come on board running. In Mr. Maller's mind, Ms. Johnson-Martin was not that
person. According to Maller, the Grievant's two great deficiencies were her lack of a
degree in Accounting and the relevance of her work experience.
The City argues that I should defer to Mr. Maller's conclusion. I concede that Mr.
is obviously the most qualified individual to make such an assessment. However, I am not
to defer to his judgement for a number of reasons. What Mr. Maller sought is an employe
a skills and education package not readily found in the bargaining unit. It may be that the
combination of education and skills sought by Mr. Maller does not exist in the bargaining
There is no degree required for the position currently occupied by Ms. Johnson-Martin. Ms.
Johnson-Martin has experience. However, Maller indicates that her experience is of the
kind for this job. However, her experience performing the various tasks that compose the
majority of the Payroll Technician position are precisely the experiences that her career with
City has exposed her to. Her experience tracks the historic career progression for City
moving upward. Ms. Johnson-Martin has actually performed a variety of the tasks
the Payroll Technician job. It is not clear to me how a City employe would gain the kind of
experience sought by Maller.
Internal posting failed to produce the desired skills/experience mix within the
unit. Maller proposed that the City recruit outside the bargaining unit. However, the
bargaining agreement has a strong expressed preference for inside senior promotional
Article XII, Paragraph "B" and Article XIII, Paragraph "B", establish a strong contractual
preference for seniority-based promotion. Article XII, "C" obligates the Employer to inform
senior employe who is not chosen for a posted assignment of that fact and to set forth the
for her not being chosen. The record indicates that provision has not been complied with.
The fundamental question underlying this dispute is the question as to whether or not
Johnson-Martin is capable of performing the Payroll Technician job. Maller insists that she
The Grievant believes that with training she is capable. The record establishes that this is an
applicant who is arguably qualified. She has the experience contemplated by the collective
bargaining agreement, not withstanding the fact that is not what departmental management
The degree is indicated as preferred, not required. This Award does not address whether or
the Employer can impose a degree requirement that operates to exclude otherwise qualified
internal applicants. The fact is, this job posting did not require a degree.
The record overwhelmingly supports a finding that historically individuals promoted
had meaningful training and an opportunity to learn facets of the job while on the job. The
also supports a finding that the ongoing evolution of the Department will inevitably involve
Department-wide training. This is not a situation where an employe lacking the fundamental
job-required skills has applied for promotion.
This contract has a mechanism for resolving disputes and/or questions as to whether
arguably qualified applicant is able to perform the job. Article XII (B) is directly on point:
prove qualified, the employee must demonstrate ability to do the job within thirty (30)
days. . ." Bona fide disputes as to job related qualifications are contractually submitted to
the-job resolution. I believe Ms. Johnson-Martin is entitled to that opportunity. I
Employer's refusal to grant her that opportunity violates Article XII (B). As noted, that
opportunity is a product of the contractual preference for seniority-based promotion.
Article XIV provides an additional mechanism where the Employer is
concerned about the
inefficiencies of on-the-job trials. Article XIV permits ability testing under promotional
circumstances. To the extent this Employer demands a knowledge base as a precondition to
placing someone in the Payroll Technician job, Article XIV provides a vehicle for
The grievance is sustained.
The Employer is directed to offer Ms. Johnson-Martin the position of Payroll
within thirty (30) calendar days of receipt of this Award. Should she prove successful, the
Employer is directed to make her whole for lost wages running from the date of the filing of
Dated at Madison, Wisconsin, this 27th day of March, 1998.
William C. Houlihan /s/
William C. Houlihan, Arbitrator
1. Mr. DeBonis did not testify in this proceeding.