BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION, LOCAL 662 affiliated
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
COUNTY OF CHIPPEWA, WISCONSIN
Previant, Goldberg, Uelmen, Gratz,
Miller & Brueggeman, S.C., by Attorney Andrea F. Hoeschen,
1555 North RiverCenter Drive, Suite 202, P.O. Box 12993, Milwaukee, Wisconsin 53212,
on behalf of General Teamsters Union, Local 662, affiliated with the International
Teamsters, AFL-CIO, referred to below as the Union.
Ms. Margaret M. McCloskey, Chippewa County Personnel
Director, 711 North Bridge Street,
Room 100, Chippewa Falls, Wisconsin 54729-1876, appearing on behalf of County of
Wisconsin, referred to below as the Employer or as the County.
The Union and the County are parties to a
collective bargaining agreement which was in effect
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a grievance filed by Delores Gund on behalf of the
The Commission appointed Richard B. McLaughlin, a member of its staff. Hearing on the
held on March 11, 1998, in Chippewa Falls, Wisconsin. The hearing was not transcribed.
filed briefs by May 7, 1998.
The parties stipulated the following issues for decision:
Did the County violate the contract by not posting the vacant
Benefit Fraud Specialist
If so, what is the appropriate remedy?
ARTICLE 2 - MANAGEMENT RIGHTS
Except as expressly modified by other provisions of the contract,
the County possesses the sole
right to operate the County and all management rights repose in it. These rights include,
but are not
limited to, the following:
A. To direct all operations of the County;
B. To hire, promote, transfer, schedule and
assign employees in positions within the County;
C. To suspend, demote, discharge and take
other disciplinary action against employees;
D. To relieve employees from their duties;
E. To maintain efficiency of County
F. To take whatever action is necessary to
comply with State or Federal law;
G. To introduce new or improved methods
H. To change existing methods or
I. To determine the kinds and amounts of
services to be performed as pertains to County
operations; and the number and kind of classifications to perform such services;
J. To determine the methods, means and
personnel by which County operations are to be
K. To take whatever action is necessary to
carry out the functions of the County in situations
L. As in the past, to contract out for goods
. . .
ARTICLE 8 - SENIORITY, JOB POSTING
. . .
Section 2. Layoff and Recall. In reducing
personnel, the least senior person in the classification
in the affected department shall be laid off. That laid off employee may bump the least
in his/her pay grade if more senior, and if determined to be qualified by the County's
Department. That bumped
employee, or the laid off employee if bumping within pay grade
did not occur, may bump the least
senior person in the next lowest pay grade if more senior and if determined to be qualified
County's Personnel Department. Similarly, until the process reaches the lowest paying pay
newly bumped person (or the originally bumped person or the laid off person if bumping did
occur), may bump the least senior person in the next lowest pay grade if more senior and if
to be qualified by the County's Personnel Department.
. . .
Section 5. Posting. All new or
vacated positions which the County has determined to fill shall
be posted by the responsible Department Head or Supervisor on the main bulletin board for
bargaining group involved for three (3) working days stating the job that is to be filled, on
it is to be filled, and the rate of pay. The following factors shall be considered in filling new
vacated positions: (1) qualifications and ability to perform the work; and (2) seniority.
interviewing via the posting procedure shall be at the County's expense and without loss of
Delores Gund, a Word Processing Coordinator in the County's Economic Support
Division and a Union Steward, filed the grievance form, which states the relevant
Pam Johnson assumed the duties for the position of the Benefit
when Connie Fisher terminated her employment.
Margaret McCloskey, the County's Personnel Director, responded to the grievance in a
Gund dated July 28, 1997, which states:
. . . The position was not posted because the duties were
reassigned to another ESS Worker. This
is a T-6 position in the Human Services Department. ESS workers are also at the T-6 pay
are inter-related jobs.
C.W. King has reassigned duties among
these positions in his department as a Management Right.
There has been no loss of pay and no loss of status,
simply a reassignment of job functions. There has been no
violation of the contract. Ultimately,
there may or may not be a vacant position which Management determines to fill as a result
As you know, the merger of Social Services
and Community Programs into a Human Services
Department is still an ongoing process. Also, there are changes to be expected in Economic
due to W-2.
C.W. has been working diligently to
restructure and reorganize the two former departments into
a cohesive, cost-effective operation, and to do this in a way that will ultimately save jobs.
One of the
tools he can use is to eliminate staff through attrition rather than to lay off employees. When
employee leaves the department, C.W.'s reassignment of duties among remaining individuals
is a part
of this process. He has assured me that, if he determines to fill a vacancy following this
he will post it.
. . .
The parties do not dispute the facts surrounding Gund's grievance.
The Benefit Fraud Specialist position, also known as the Benefit Recovery/Fraud
does not have a job description. The position has evolved over time. In 1988, it was placed
the T4 pay range. It evolved into a position known as Verification Specialist. The 1993
Specialist job description placed it in the T5 pay range. The "Position Functions" of that job
description state that the occupant of the position typically would devote 75% of their time to
"Front-end verifications," 10% of their time to "Fraud investigations," and 15% of their time
duties. The "Knowledge, Skills and Abilities" section of the job description is composed of
separately stated paragraphs, and the "Desirable Training and Experience" section is
six separately stated paragraphs.
The 1997 job description for Economic Support Specialist II places it in the T6 pay
The "Position Functions" portion of that job description reads thus:
1. Interview clients to determine eligibility and benefit levels for
state and local programs
including, but not limited to, Aid to Families with Dependent Children (AFDC), Medical
(MA), Food Stamps (FS), and/or General Relief (GR).
2. Obtain, verify and document necessary information for client
3. Ensure that all the necessary and appropriate applications,
monthly report forms, and other
data entry forms are coded properly and processed correctly through the state computerized
so that the client's case is current, accurate and complete.
4. Ensure that all appropriate reports are completed and filed as
necessary to maintain agency
compliance with federal, state and local laws and/or regulations.
5. Keep all applicable manuals and/or handbooks up to date and
maintain a current
understanding of the policies contained within them.
6. Ensure that all necessary collateral checks and verifications
indicated by computer cross
matches, fraud referrals, or front-end investigations are completed in a timely manner.
recalculations to determine client over/under issuances.
7. Maintain the ability to perform duties in an independent
manner while exercising good
8. Respond in a timely manner to telephone, letter, and personal
contacts made by or on behalf
9. Attend and participate in required staff meetings and training
10. Perform other duties as assigned by the ES manager.
The "Knowledge, Skills and Abilities" and the "Training and Experience" portions of
description are essentially identical to those portions of the Verification Specialist job
Casey Le Clair served as the County's Verification Specialist and was succeeded in
position by Helen Hagen. In 1993, Connie Fisher succeeded Hagen. In each of these
County posted the position. Fisher left the Benefit Fraud Specialist position sometime in
of 1997. Sometime after her departure, Clyde W. King, the County's Director of its Human
Department, assigned duties performed by Fisher to Pam Johnson, who was at the time
an Economic Support Worker, and had roughly one year of experience with the County.
learned of this assignment on May 19, 1997, when she saw a notice, which read:
Congratulations to Pam!!! She will assume the duties for the
position of the Benefit
Gund testified that the duties formerly performed by Fisher but currently performed by
require roughly 90% of Johnson's time. The County has not posted Fisher's position.
It is undisputed that Johnson received training in the functions formerly performed by
For example, Johnson attended a conference in August of 1997, which was promoted as
training for fraud investigators and front end verification specialists." The agenda for that
included an offering on "the role of the economic support specialist." She also attended a
in September of 1997 for new worker training in W-2. A notice of that seminar stated "who
All employees hired after March 15, 1997, who will be
performing job functions related to W-2:
1) Resource Specialists, 2) W-2 Supportive Services Planner, 3) Financial Employment
Job Coach/Employment Specialist, and 5) All Economic Support Specialist (sic) determining
eligibility for Medical Assistance and Food Stamps.
Johnson was also the only County employe from the Economic Support Department to
January, 1998 workshop on fraud programs. Johnson succeeded Fisher on a regional
committee for an organization spanning public and private sector agencies addressing
support programs, including W-2. It is undisputed that the administration of W-2 requires
prevention procedures, which may, under the W-2 program, be filled through County
may be contracted out.
King testified that the County once administered social service and community
offerings through separate departments. The overhaul of economic assistance programs
as W-2 altered that. The County vigorously debated whether to become involved in the
administration of the program at all. King believed that the County had competent staff with
experience and argued for the County to become the administrator of W-2 programs. The
chose to do so, but the Board was unwilling to commit significant County-based resources to
effort. These considerations, among others, prompted the consolidation of County services
single Human Services Department.
Knowing that the County has experienced a significant drop in economic assistance
and knowing County reluctance to maintain staffing levels, King decided to reduce the
the Human Services Department by attrition whenever possible. When Fisher left County
employment, King decided not to fill her position, but to allocate those the Department still
to another position. That position was Johnson's position of Economic Support Specialist.
County has no employe other than Johnson working in the fraud programs formerly assigned
Fisher. King, and the County's Personnel Department, viewed this reassignment of duties as
continuing part of a consolidation process traceable to
W-2. King noted the County has reduced its Human Services Department by 7.5
positions through the process applied to Johnson. The County has not yet rewritten job
to reflect these changes.
Sometime in 1995, the Union attempted to secure reclassifications covering a number
employes. Included in those requested reclassifications was a proposal to move the position
Economic Support Specialist and the position of Verification Specialist to pay range T6.
attempt was not, at that time, successful. King supported the effort as a group effort.
the County's denial of the reclassification, sought to have her reclassification addressed
She was granted the opportunity to do so before the Personnel and Negotiations Committee
October 24, 1995. The minutes from that meeting read thus:
3.2 Verification Specialist McCloskey introduced
Connie Fisher to the Committee. Fisher
thanked the Committee for their time in allowing her to discuss the denial of her
request. Fisher stated she had received a letter from the Personnel Department informing her
reclassification request had been denied because it was considered to be a wage adjustment
a reclassification. Fisher stated that she is not an Economic Support Worker. She said she
own title and during contract negotiations she was not included in the request to move the
Support Workers to a T6 level. She said she presented her own reclass to the Human
and to Tom Simonsen. She said she was not included in contract negotiations and she was
the proper justification for the denial from the Personnel Department. She said she was
that the Personnel Committee look at her reclassification request separately and that it not be
with the Economic Support Workers. McCloskey stated it was her understanding that when
presented the reclassification requests they were all done as a group and the Verification
was not presented as a separate request. Brost stated she thought this position had been part
union request. She said she serves on the Human Services Board and it was her
the Verification Specialist and Economic Support workers were presented to the Board as a
As noted above, the Benefit Fraud Specialist and the Economic Support
ultimately became part of the T6 pay range.
Further facts will be set forth in the
THE UNION'S POSITION
The Union argues that the contract "clearly requires the County to post all vacant
without regard to classification or wage level." That the County filled the Benefit Fraud
position with an employe from the same wage level has no contractual meaning. Economic
Specialist and Benefit Fraud Specialist are contractually distinct positions with separate job
descriptions. The posting provision makes no reference to wage levels. Neither the contract
arbitral precedent provide any defense for the County's failure to post the Benefit Fraud
position once it became vacant.
Nor can Chippewa County, MA-9547 (Greco, 1996) provide a defense for the
conduct. Arbitrator Greco, in that decision, determined only that "the County had the right
transfer bargaining unit work to a supervisory employee." Because the County determined to
Benefit Fraud Specialist position, Greco's award is distinguishable.
The County's contention that it shifted work to Johnson is unpersuasive. The Union
that "Economic Support Specialist and Benefit Fraud Specialist are different positions with
job descriptions . . . different training and different responsibilities." The evidence
more than a mere shift of some work occurred when King altered Johnson's duties. The
shift of duties cannot be seen as anything less than the filling of a vacancy.
That King felt the action effected a "down-sizing" without harm to any employe
the County's conduct, since "(t)he County's reasons for violating the Agreement are
Arbitral precedent and the agreement establish that if the County chooses to down-size, it
comply with governing layoff, seniority, and posting provisions. The Union puts the point
no circumstance may the County avert a layoff by violating the posting and seniority rights
of the rest
of the bargaining unit."
As the remedy appropriate to the County's violation of the labor agreement, the
"that the position be posted and the successful bidder be made whole."
THE COUNTY'S POSITION
The County contends that King's actions are a valid exercise of its authority under
King determined that the reduction in caseloads traceable to the implementation of W-2 made
possible not to fill the Benefit Recovery/Fraud Specialist position. The same reduction in
made it possible for Johnson to assume additional duties, thus permitting the County to shed
position without harm to any employe.
Arbitrator Greco's decision was directed to the Professional unit, but the governing
is the same as that posed here. Minor differences in detail cannot obscure that "the award
County in one of the bargaining units with identical contract language and location, is
target in the current situation."
While certain functions differ between the Benefit Recovery/Fraud Specialist and ESS
positions, they share the same pay range, training and prerequisites. Thus, Johnson's move
lateral, and well within the County's authority. That the Union brought a reclassification
common to both positions underscores their underlying similarity.
The radical changes within the programs administered by unit employes, coupled with
funding issues establish the need for conscientious application of its "broad powers of
That King has been able to reduce the size of the department without harming employes "was
accomplished within the scope of management rights and without contract violation." The
concludes that the record establishes that the grievance must be denied.
The issue is stipulated and poses the relationship of Article 2 with Article 8. More
specifically, the issue is whether the County is authorized under Sections A, B, E, G, H, I
and J of
Article 2 to assign work formerly performed by Fisher to Johnson. The issue poses the
of the two articles because, standing alone, Article 2 grants rights broad enough to cover the
posed by the grievance. The interpretive issue is whether those broad rights have been
modified, " within the meaning of the first paragraph of Article 2, by Sections 2 and 5 of
Article 8, Section 5 is the contractual strength of the Union's case. That section
that "(a)ll . . . vacated positions . . . shall be posted." The strength of the County's view of
section is that the posting mandate is directed to "positions which the County has determined
The Union persuasively argues that the County's representation that it chose not to fill
position does not dictate the conclusion that it did not, in fact, fill it. Thus, the conflict
two parties' views of Section 5 is factual. The factual issue is whether the County reassigned
not constituting a position or whether it effectively replaced Fisher's position.
The strength of the Union's arguments must be granted, but the record falls short of
establishing that the County filled Fisher's position. Gund's testimony that Johnson spends
predominant amount of her work time performing duties once performed by Fisher is
Beyond that, it is apparent that Johnson has been trained to assume fraud prevention duties
performed by Fisher. The informal notice prompting the grievance all but announces the
bid for a position.
The significance of these points cannot be obscured, but must be balanced against
evidence. Gund's testimony on Johnson's day-to-day work activity has not been rebutted,
less than a definitive analysis of what portion of a typical work day Johnson spends in
duties formerly performed by Fisher. That Gund opens Johnson's mail, and controls access
Johnson needs to document the implementation of fraud prevention measures affords her
Johnson's work, but is something less than a job audit. Beyond this, the training conferences
attended were also geared to the work of an Economic Support Specialist. Nor is it clear
prepared the notice which prompted the grievance. The representations of the informal
troublesome, but the record does not establish who made those representations.
Standing alone, these qualifications cannot undercut the significance of the Union's
arguments. The qualifications do not, however, stand alone. It is evident that the Benefit
Specialist is something other than a long-standing position with fixed set of duties. The
shows the Benefit Fraud Specialist to be long standing, but a position in flux within a
flux. There is no job description for Benefit Fraud Specialist. The most recent job
description is for
Verification Specialist, when the position was placed in the T5 pay range. Since the
of that job description, the position was renamed and upgraded a pay range. Thus, the duties
composing the position of Benefit Fraud Specialist have been undergoing change. Beyond
changes were sufficiently significant to move the Benefit Fraud Specialist two pay ranges
That the Human Services Department is in flux is apparent. The changes prompting
consolidation of the Department have resulted in the reduction of 7.5 full-time equivalent
Beyond this, the implementation of the W-2 program has altered the interaction between
Services Department employes and their clients.
Significantly, the positions of Economic Support Specialist and Benefit Fraud
considerable overlap. The 1997 job description for Economic Support Specialist II lists
the same "Knowledge Skills and Abilities" and "Training and Experience" require-ments as
job description for Verification Specialist, even though, by the terms of the job descriptions,
it is rated
one pay range higher. Training, as noted above, can be geared to both positions.
Against this background, King's actions after Fisher's departure manifest more a
realignment of duties than the replacement of employes within a single position. That
assumed fraud prevention based duties formerly performed by Fisher is apparent. Less
whether a Benefit Fraud Specialist must perform those duties. If that position has been
defined, it is not apparent how it moved two pay ranges. That it shares the same pay range
Economic Support Specialist cannot establish that the positions are identical, but does
qualitative equivalence of duties. That the positions have considerable overlap makes the
assignment of duties between them appear predictable. On balance, King's actions
look more like
the ongoing response of a department in flux than a refusal to post a clearly defined set of
established as a discrete position.
The line between assigning duties and posting a position can be fine, and it is thus
to tie the conclusion stated above more closely to the parties' arguments. The award of
Greco does highlight that the provisions of Article 8, Section 5 must be reconciled with the
stated at Article 2. It also underscores that Article 8, Section 5 does not apply unless the
determines to fill a position. These points must, however, be given meaning by their
fact. The facts underlying the Greco decision have little bearing on the facts posed here.
County chooses to characterize its decision as something other than filling a position cannot
Article 8, Section 5 meaningless. If anything, the Greco decision underscores the need for
in applying rights under Article 2. Those rights must not be applied in a fashion to defeat
stated in Article 8. The award, if applicable here, underscores that the conclusion stated
be restricted to the facts posed by this grievance.
The Union's contention that the County's conduct can undercut Article 8 rights is
but is ultimately not supported by the facts. The Union is correct that the County cannot
layoff by violating the posting and seniority rights" of Article 8. However, the evidence
than a seamless fit with Article 8. The first sentence of Section 2 of Article 8 mandates that
senior person in the classification in the affected department shall be laid off ... (i)n reducing
personnel." This reference points to situations where an individual must be removed from
employment status. This does not, in itself, mean King can avoid the rights granted in
Section 5, but
does indicate that he has some latitude in relying on attrition to effect personnel changes. At
minimum, this establishes that Section 2 did not somehow mandate a layoff when Fisher left.
This underscores that the focus of this dispute is Section 5 of Article 8, and
difficulty of the Union's application of that section to these facts. The effect of the Union's
is that Fisher's departure mandated a layoff. The difficulty with this position is that it is not
on this evidence, what contract provision mandates that layoff. That the Benefit Fraud
position is closely related to that of Economic Support Specialist and has undergone
change over time makes it difficult to conclude that King did anything other than reassign
between similar positions to permit the loss of a position by attrition. If the lost position
be identified as that of Benefit Fraud Specialist, then the mandate for the layoff could be
Section 5 of Article 8. The record establishes, however, only that in a continuing
duties, the positions of Economic Support Specialist, Benefit Fraud Specialist and perhaps
have ceded duties to permit the loss of an entire position through attrition. Against this
mandating a layoff would work greater damage to Article 2 than to Article 8.
The County did not violate the contract by not posting the vacant Benefit Fraud
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 7th day of July, 1998
Richard B. McLaughlin, Arbitrator