BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NEW BERLIN PUBLIC EMPLOYEES UNION, LOCAL
2676, AFSCME, AFL-CIO
CITY OF NEW BERLIN
Mr. Sam Froiland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing
on behalf of the Union.
Davis & Kuelthau, S.C., by Attorney Roger E. Walsh,
appearing on behalf of the City.
New Berlin Public Employees Union, Local 2676, AFSCME, AFL-CIO, hereinafter
to as the Union, and the City of New Berlin, hereinafter referred to as the City, are parties
collective bargaining agreement which provides for the final and binding arbitration of
thereunder. The parties mutually agreed to the undersigned to act as the sole arbitrator to
decide a grievance over a reclassification request. Hearing was held in New Berlin,
January 15, 1998. The hearing was not transcribed and the parties filed briefs and reply
last of which were exchanged on March 24, 1998.
The grievant is employed as a Clerk Typist in the City's Planning Department. She
a part-time employe in 1986, and worked part time as a Clerical Assistant until December,
when she became a full-time Clerk Typist. The Department has one full-time and two
Typists. Prior to 1997, the two part-timers were classified as Clerical Assistants until the
were reclassified in 1997 on the basis they were performing the same function as the
Typist. On April 15, 1996, the grievant
submitted a reclassification request to her supervisor, Steven Hoese, the Director of
Community Development. In August, 1996, the grievant, at the City's request filled out a
questionnaire. The City did not reclassify the grievant and on August 11, 1997, the grievant
grievance seeking a reclassification to Grade 7A. The grievance was denied and appealed to
The parties stipulated to the following:
Did the City violate the collective bargaining agreement when
refused to reclassify the
If so, what is the appropriate remedy?
ARTICLE II - MANAGEMENT RIGHTS
2.01 - Rights Except as hereinafter provided, the
management of the work and the direction
of the working forces, including the right to hire, promote and to lay off employees, to
discharge employees for just cause (except as provided in Section 5.01), to terminate
because of lack of work or because a service is being discontinued, to transfer and realign
different employees (subject to the right of the Union to grieve situations where an
load or work content has been increased or made more difficult, for a determination of
prevailing compensation requires modification), to delegate the work to others (so long as
delegation does not result in an employee being laid off or suffering a reduction of hours of
to adopt different methods of doing the work and install new machines and devices, are
vested in the
Employer, provided, however, that these rights shall be exercised with due regard for the
the employees, and provided further that these rights shall not be used for the purpose of
discrimination against any employee, or for the purpose of invalidating any contract
. . .
2.03 - Employer Action If
any action taken by the Employer in the exercise of its rights is
determined not to be justified, any employee involved shall be reimbursed for all wages and
of which he/she was deprived by reason of the action by the Employer.
. . .
ARTICLE VI - PROMOTIONS, TRANSFERS AND NEW
. . .
6.07 - Rate for New or Changed
Positions When a new position is created or the duties or
responsibilities of an existing position are changed significantly, the Employer shall prepare a
description and establish the appropriate wage or salary. If the Union disagrees with the
salary rate so established, it may make a grievance as to the rate and such grievance shall be
in accordance with Article IV herein.
. . .
The Union points out that the grievant's supervisor, Steven Hoese, testified that the
items in her April 15, 1996 reclassification request were in error:
- Oversees all Planning Office clerical activities and is responsible
for the function of clerical
- Assists in interviewing and hiring clerical
- Oversees project tracking list for the
Director of Planning & Community Development.
- Creates and distributes agendas for various
boards and commissions.
- Schedules all appointments for Director of
Planning & Community Development and all other
- Keeps track of bills and invoices for the
- Routes and files applications for Plan
It also notes that the City admitted that there is no procedure
place for notifying the Union
regarding changes in job descriptions or duties when they occur. It observes that the
not provided with an updated job description which it contends is very troubling in light of
Yaeger's Award in City of New Berlin (1/96) (Ex. 10). It submits that the City provided an
updated position description for the grievant's position at the hearing and a comparison of it
reclassification request calls into question the credibility of Hoese's testimony because the
job description provides the following:
- Oversees all Planning Office clerical activities.
- Schedules all appointments for director of
planning & community development and other staff
- Keeps track of bills and invoices for
- Routes and files applications for plan
It further states that the City admitted that while the grievant
not solely responsible, she
does "create and distribute agendas for various boards and commissions." The Union states
grievant had a role in interviewing and hiring one of the part-time Clerk Typists in the
in April, 1996. It concludes that the grievant's April 15, 1996 position description is, for the
part, accurate. It argues that a review of the grievant's new position description
she performs work that requires a higher level of responsibility and are tasks of an
rather than of a clerical nature. It observes that as the part-time Clerk Typists are in the
range, it does not make sense that the grievant with a higher level of responsibility would
in this same range. Further, none of the other Clerk Typists employed by the City,
according to the
Union, have the same combination of higher level job requirements as the grievant. The
that based on a review of other positions with similar responsibilities, the grievant should be
to Range 7A. The Union submits that although the facts are different, Arbitrator Yaeger's
points to a very similar scenario to the instant grievance. The Union alleges that it has
and compelling evidence of significant changes in the grievant's duties and responsibilities
should be reclassed to Range 7A effective as of the date of her request for reclassification
should be made whole.
The City contends that the Union is proposing a revision in the terms of the collective
bargaining agreement by requesting that the wage rate for the grievant's position be increased
pay ranges. It argues that the Union must substantiate this revision by clear and convincing
The City takes the position that the current job functions of the Clerk Typist position held by
grievant have not changed since at least 1980, so the contract provisions relied on by the
inapplicable. It points out that the contract requires a significant change in the duties or
responsibilities of the position before a grievance may be filed over the appropriateness of
rate for the position. The City also claims that these changes must take place after
the current contract have been completed because if changes occurred before, then the proper
to take up the appropriate wage rate is at the bargaining table, citing Dodge County, Case
(Buffett). The City maintains that there was no significant change in job duties or
of the grievant's position since at least 1980, except a one-time function of assisting the
interviewing and hiring clerical staff. It insists that the Union has not met its burden of
The City contends that the Clerk Typist position held by the grievant is properly
placed in Pay
Range 5. It observes that the City has five other Clerk Typist positions besides those in the
Department and the testimony indicated that these employes perform basically the same type
as the grievant. It submits that as all Clerk Typist positions, including the grievant's, are
the same and they are paid the same, there is no justification for the Union's request for a
Range increase for the grievant. The City disputes the Union's claim that the grievant's
the same job duties and responsibilities as the Secretary in the Department of Public Works
It submits that the Secretary in DPW has considerable oversight responsibility over the
functions in DPW and its five divisions and has direct supervisory responsibility for the
Typist in the Engineering Division and over part-time floater positions in the Department. It
that she assigns them work, determines when temporary employes were needed and would
in the interview process and give her input into who should be hired. It points out that she
disciplined a floater and terminated a temporary floater, she has input in changes to office
sets the agenda for meetings of the Department clerical staff. Additionally, the City states
has input into the budget for office supplies, deals directly with vendors, as well as
expenditures and remaining within the budget. It concludes that the Secretary of DPW has
and more responsible duties than the grievant and the Union failed to prove a basis to reclass
grievant to the same Pay Range 7A.
The City requests that the grievance be denied and the proceedings be dismissed.
The Union contends that the City's argument that reclassification grievances cannot
pursued for positions which experienced changes before the existing agreement must fail. It
that such a requirement would limit Section 6.07 in a fashion never intended by the parties,
preclude the ability to remedy changes in duties that occurred over time and does not account
instances where the Union is not informed nor become aware of individuals taking on
responsibilities. It submits that where the City does not update job descriptions, it would
individual waive rights on behalf of the Union.
The Union argues that the City seeks to completely disregard its contractual
prepare a new job description for the grievant and that failure to act cannot be brushed aside.
submits that the City has had very clear notice of the duties to update the job description and
be determined if the City failed to meet its responsibilities under the agreement.
The Union claims that it has demonstrated that the grievant is performing work which
more skills and responsibilities than Range 5 as the position now is less clerical and more
administrative. It insists the evidence establishes that her position is most similar to the
DPW in Range 7A and it requests the grievant be reclassed retroactive to February, 1996,
made whole for the City's failure to reclassify her.
The City contends that Arbitrator Yaeger's Award does not support the Union. It
the Union's claim that Yaeger's Award requires the City to provide the Union with an
description is an incorrect reading of it. It submits that Yaeger's comments relate to the
the City's procedural arguments that the grievance was untimely or barred on the theory of
The City points out that it is not making these same arguments here; rather, it is simply
the condition precedent for a grievance under Section 6.07, i.e. significant change in job
the current agreement was agreed to, has not occurred but the job duties have stayed the
at least 1980. The City avers that nothing in the Yaeger Award changes the standard in
that there be duties or responsibilities that changed significantly before the City is required to
the job description.
The City observes that the facts in the Yaeger Award are entirely different from the
case. According to the City, the grievant in the Yaeger case assumed several of her
duties when he left the City as well as those of another employe who quit and was not
grievant's Department Head supported a regrade, an outside consultant included the duties in
job description and the Union made a proposal in negotiations to upgrade her position which
later withdrawn and the grievance was filed over the City's refusal to upgrade the position.
It submits that in the instant case, the grievant's duties have not changed and no
proposal to upgrade her position has been made in the last five rounds of negotiations, so the
must have agreed to its placement in Range 5.
The City maintains that there is no provision in the contract which requires that it
Union a copy of any revised job descriptions. The City lists a number of provisions which
City to provide documentation to the Union, but none on new job descriptions.
The City claims that inaccuracies in the grievant's April, 1996 list of job duties
undermines the Union's contention that an upgrade is justified. It maintains that the grievant
responsible for the function of clerical personnel and although she distributes work to them,
assignments come from someone else. It points out that the others distribute work to the
and furthermore, there is not a lot of clerical work distribution activity as specific functions
70 80 percent of the part-time employes' work time. It asserts that
all employes schedule the Director's appointments and the Director had input from
employes when a new clerical employe was hired. The City denies that the grievant created
or prepared the Department's Policy Manual as her role was simply to type up documents
letters and reports. The City maintains that the grievant's position is clerical and not
and there is no difference between her duties and the part-timers' duties except she works
hours. It observes that the grievant envisions and imagines her position is of higher stature
is in reality, but the reality is that there is no support for any upgrade.
The City denies the grievance has any merit and if it did, the only remedy would be
to retroactivity to 30 days prior to the filing of the grievance. The City concludes that the
failed to prove by clear and convincing evidence that the grievant was entitled to a four range
upgrade. It insists there has been no significant change in the grievant's job duties since
her duties are similar to other Clerk Typist positions in the City. It submits there are
differences in the job duties of the Secretary of DPW and the grievant's and nothing in the
Yaeger Award is inconsistent with dismissal of the grievance here.
It requests that the grievance be denied and the case dismissed.
Section 6.07 of the parties' collective bargaining agreement provides, in part, that
duties or responsibilities of an existing position are changed significantly, the City shall
prepare a job
description and establish the appropriate wage or salary. The dispute in this case is whether
or responsibilities of the grievant's position have changed significantly. The City has argued
significant change has to occur since the last contract was negotiated. The undersigned is not
persuaded that such a requirement is required by the contract. The Union's arguments that
individual employe who assumes greater duties or responsibilities may not make that fact
the Union and gradual changes in job duties are more persuasive arguments than the City's.
appear that an employe who clearly is assigned greater duties and responsibilities and is not
through the negotiation process should not be forever precluded from grieving the proper
classification for the position.
The ultimate question is whether the duties and responsibilities of the grievant's
changed significantly. The grievant in the April 15, 1996 request states that the position
Planning Office clerical activities and is responsible for the function of the clerical personnel
In the Position Questionnaire, the grievant has an organization chart showing she is directly
Clerical Assistants and indirectly over the Graphics Coordinator (Ex. 6). The agency's
chart dated June, 1996, shows that the grievant has no responsibility over the Clerical
the Graphics Technician reports
to the Associate Planner (Ex. 17). The grievant's supervisor testified that the grievant
supervisory responsibilities over the part-time Clerk Typists. The undersigned finds that the
has exaggerated her responsibilities with respect to the other clericals.
The grievant testified that she performed certain duties as needed or only once in the
assists in interviewing and hiring clerical staff. The grievant pointed to no new duty or
that significantly changed her job duties or responsibilities. She claims that her position is
administrative than clerical but failed to show how it is more administrative. A review of the
shows that the grievant's duties are clerical. The undersigned credits Steve Hoese's
except for the introduction of electronics, the job performed by the grievant has not changed.
review of the grievant's duties with those of other Clerk Typist positions shows no
that the grievant's position stands out as different in duties and responsibilities (Exs. 18-21).
the evidence fails to establish a significant change in the grievant's duties or responsibilities
the requirements of Section 6.07 of the contract.
It should be noted in the decision by Arbitrator Yaeger in a prior dispute between the
the evidence established that the Water Utility Clerk's duties had changed, her
supported by the former Utility Superintendent, an outside consulting firm prepared a new
description for the position and reclassification of this position was taken up in negotiations
None of these factors are present in the instant case. The evidence simply failed to
duties and responsibilities changed significantly. Therefore, the City did not have a
obligation to prepare a job description and establish the appropriate wage.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
The City did not violate the collective bargaining agreement when it refused to
grievant and the grievance is denied.
Dated at Madison, Wisconsin, this 28th day of May, 1998.
Lionel L. Crowley, Arbitrator