BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LITTLE CHUTE VILLAGE EMPLOYEES, LOCAL
VILLAGE OF LITTLE CHUTE
Little Chute Village Employees, Local 130-C, AFSCME, AFL-CIO, hereinafter
as the Union, and the Village of Little Chute, hereinafter referred to as the Village, are
parties to a
collective bargaining agreement which provides for the final and binding arbitration of
thereunder. The Union made a request, with the concurrence of the Village, that the
Employment Relations Commission designate a member of its staff to act as the sole
hear and decide a grievance over the meaning and application of the terms of the agreement.
undersigned was so designated. Hearing was held in Little Chute, Wisconsin, on February
The hearing was transcribed and the parties filed briefs and reply briefs, the last of which
exchanged on April 24, 1998.
The Working Foreman (Grade V) in the Village's Street Department went on a leave
absence in July, 1997, due to illness. The Village assigned Martin Jansen, a Grade III
Operator to temporarily fill the Working Foreman position. Jansen is the second
most senior employe in the Department and on July 11, 1997, the Union filed a
the Village violated the parties' collective bargaining agreement but putting Jansen, a less
than Glen Lamers, in the temporary Working Foreman position without posting the position
Jansen performed as temporary Working Foreman until August 14, 1997, when the grievance
resolved on the basis that the temporary Working Foreman position would be posted. The
Working Foreman position was posted on August 18, 1997, and stated as follows:
GRADE V WORKING FOREMAN
As of August 18, 1997, there is a Grade V Working Foreman's
position open in the Department
of Public Works, Street and Sanitation Division. If you are interested in applying for this
please sign below by August 29, 1997. If the current Grade V returns to work, the selected
will return to his former position.
This assignment could be temporary, and as
such, is non-precedent setting in terms of collective
Four employes signed the posting including Glen Lamers and Martin Jansen. A
September 9, 1997, was sent by the Director of Public Works to the applicants which stated
This memo is intended to set forth the selection guidelines
will be used by the Village of
Little Chute in regards to the current posting for the Working Foreman position. The
be considered based upon the following four criteria:
(3) An oral interview; and
(4) A job related psychological profile.
Posting applicants will be required to fill
out a job related application for the position which
will set forth certain questions regarding the criteria listed. Some of the responses indicated
application will be utilized within the oral interview.
The experience criteria will consider such
aspects as leadership abilities, planning abilities,
decision making abilities, and prior work experience.
Finally, top candidates will be required to
take a job related psychological profile exam as it
relates to this leadership position.
It is the intent of this process to hire the
most qualified applicant within the language of the
collective bargaining agreement.
If there are any questions in regard to this
hiring procedure, please let me know.
On September 15, 1997, the applicants were sent a job-related questionnaire which
be returned by September 19, 1997 (Ex. 10). On September 17, 1997, the Union filed the
grievance alleging that the Village improperly posted the position. The grievance stated as
Management neglected to include a brief description of the job,
did not list qualifications
necessary for the job, and did not include the pay rate for the job in question and, only left
for applicants to sign the posting. (Ex. 2)
The grievance was denied on September 22, 1997, and appealed to the next step the
(Exs. 3 and 4). The Village administrator denied the grievance on October 7, 1997 (Ex. 5).
October 31, 1997, the Director of Public Works sent the following memo to each of the
This letter is in regards to the current posting matter regarding the
working foreman position.
Upon further consideration by the Village, the Village is exercising its right to withdraw the
procedure at this time and is electing not to fill the working foreman position. As you know,
current employee for that position is still employed by the Village.
It is anticipated that a retirement may occur
in January, 1998. In that regard, the Village
anticipates that it will post a vacancy at that time for the working foreman position. We
appreciate your patience with this matter. We encourage all interested employees to apply
future vacancy exists.
The Working Foreman position was left vacant from August 18, 1997, until it was
a different posting on January 15, 1998. When there was a need for a Working Foreman, it
assigned to Lamers, and if he was not available, then to Jansen (Tr. 31). The second posting
resulted in the position being permanently filled on January 15, 1998, is the subject of a
The instant grievance was appealed to arbitration on November 10, 1997.
The parties were unable to agree on a statement of the issues. The Union frames the
1. Did the Employer violate the labor agreement and/or past
practice by the posting for the Grade
V Working Foreman position dated August 18, 1997?
If so, what is the appropriate remedy:
2. Did the Employer violate the labor
agreement by selecting a less senior employe to fill the
Grade V Working Foreman position?
If so, what is the appropriate remedy?
The Village frames the issue as follows:
Did the Village violate Article 7 of the collective bargaining
agreement by the manner that it
posted the position of Grade V Working Foreman position dated August 18, 1997?
If so, what is the appropriate remedy?
The undersigned adopts the issue as stated by the Village.
ARTICLE 2 MANAGEMENT
2.01 Except as otherwise specifically provided
herein, the management of the Village of Little
Chute and the direction of the work force, including but not limited to the right to hire,
discipline, demote or discharge for just cause, to decide job qualifications, to lay off for lack
or funds, to abolish positions, to make reasonable rules and regulations governing conduct
and to modify said rules to determine schedules of work, to subcontract work except no
shall be laid off in the department where subcontracting occurs, together with the right to
the methods, processes, and manner of performing work, are vested exclusively in the
. . .
ARTICLE 7 JOB
7.01 A vacancy shall be
defined as a job opening not previously existing or a job opening
created by the termination of employment, promotion or transfer of existing personnel.
7.02 All vacancies shall be
posted on the bulletin boards in each department for ten (10) work
days. Such postings shall contain a brief description of the job, qualifications, rate of pay,
adequate space for interested employees to sign. Qualifications shall be consistent with the
require-ments of the job classification. A copy of each job posting shall be submitted to the
7.03 The Employer shall attempt to fill the
position within ten (10) calendar days
following completion of the posting period from those employees who signed the posting. In
a selection, the Village shall consider:
2) Ability to perform the work;
3) Qualifications, including, but not
limited to training, work record and experience.
When factors (2) and (3) are relatively
equal, length of continuous service shall prevail. In
each instance, the factors of ability to perform the work and qualifications including training,
experience, and work record, shall take precedence over length of continuous service. In the
that a more senior employee is not selected to fill the position, the Village shall notify the
and Union in writing of the reasons. Nothing contained herein shall either prevent the
eliminating a position or posting a vacancy consistent with the operating needs of the Village.
7.04 Promotion and
Job Bidding: Seniority of each employee shall be on a department basis.
Ability and seniority will be determining factors in giving such promotions for job transfers
department. In the event that no employee from within the department bids on an opening,
unit seniority will prevail amongst those employees who bid for the opening.
The Village may temporarily fill a position
until it is determined that there are bidders for the
job, or whether such bidders are substantially qualified for the job. Nothing contained in this
provision shall prevent the Village from offering a job vacancy to a new employee when no
qualified employee bids for the position. The Village may, in the event that no employees
substantially qualified, offer the job to any employee it deems qualified or hire a new
. . .
ARTICLE 8 PAY
. . .
8.02 Employees who are
assigned by their supervisor to perform work in a higher
classification following an accumulative eight (8) hours for training, shall receive the rate of
that higher classification for all hours worked in
that capacity, provided the assignment is more than one (1) hour.
There shall be no wage rate
reduction due to temporary assignment to a lower paid classification.
Such temporary assignments, whether
inside or outside of the department, shall be offered to
employees on the basis of department seniority among those employees who are qualified to
the assignment. If no employee within the department who is qualified to perform the
accepts such assignment, the least senior employee who is so qualified shall be assigned.
. . .
The Union contends that the Village is arguing that it had no need to post the
Foreman position. It claims that this issue is not before the Arbitrator because the settlement
Grievance #1-97 was that the Village would post the position. The Union asserts that the
required to comply with the posting provisions of the parties' collective bargaining agreement
forth in Article 7, Section 2 including a brief description of the job, qualifications, rate of
adequate space for interested employes to sign. It points out that the posting did not contain
reference to a description of the job, qualifications or rate of pay. It observes that Article 7,
3 requires an attempt to fill the position within ten (10) calendar days after the completion of
posting. The Union argues that the Village did not comply with this provision. The Union
that the plain language of the contract must be given effect. It alleges that the undisputed
established that the grievant, Glen Lamers, was qualified to perform the job and is the most
employe in the bargaining unit. It claims that the record shows that Lamers' skill and ability
relatively equal to all signers of the posting so he should have been awarded the position with
pay for the time the position was filed. It points out that Martin Jansen testified that the
competent in performing the Working Foreman duties and Jansen had no incentive to give
testimony. The Union points out that Lamers was placed in the Working Foreman position
it was necessary.
The Union argues that the selection process is tainted and the Village created
requirements so it would not have to select the grievant. It notes that the September
9th memo and
the September 15th questionnaire were given to applicants well after the
10-day period expired. It
contends that the grievance should be sustained.
The Union asserts that past practice supports its position as jobs have
been awarded as specified
in the labor agreement and there have never been job questionnaires or psychological profile
used before this case. The Union believes that the fact these have been used in the
Police Department does not give the Village the right to use them in this unit. It
concludes that past
practice supports its position and the grievance should be sustained. It argues that Lamers
be awarded the position from September 17, 1997 through October 31, 1997, and be made
all lost wages and benefits.
The Village contends that the grievance should be denied because it represents that
previously grieved and resolved. It asserts that the Union tries to incorporate a past
was resolved. It insists that the applicants understood the assignment and the rate of pay is
in the parties' agreement, yet the instant grievance seeks the same remedy as the initial
It argues that the prior grievance dealt with a temporary assignment and not a vacancy as
Section 7.01. It maintains that the temporary assignment does not meet the definition of a
and it relies on Section 7.04 which allows it to fill a position temporarily until it determines
are bidders for the job who are qualified. The Village admits that it agreed to post the
position but the Union never questioned the procedures it used, and besides, the specific
requirements for a vacancy do not apply. The Village points out that the prior grievance was
on the basis of it being posted and no back pay would be forthcoming. It asserts that the
now arguing for the remedy of back pay in this grievance. It states that the Union's position
unclear. The Village argues that the instant grievance is not subject to arbitration as all the
have been resolved making the grievance moot.
The Village takes the position that in resolving the previous grievance, the Union was
aware of the job description and duties and the wage rate for the Working Foreman is in the
It states that to assert a violation based on a lack of the job description and wage rate ignores
as this was not a vacancy but a temporary assignment. The Village observes that it had no
to post a temporary assignment. The Village claims the grievance is moot because it
posting. It notes that after the first grievance was resolved, Jansen did not perform the
duties but the
position's duties were performed by supervisors and if they were not present, then it was
to the most senior employe. It maintains that once it became aware that the incumbent would
likely retire in January, it withdrew the temporary posting preferring to post for the vacancy.
contends that as the posting was withdrawn there was nothing to grieve and the grievance is
and must be dismissed.
The Village contends that the management rights clause is clear and unambiguous and
reserves to it the right to determine the appropriate qualifications for the Working Foreman.
submits that the method it uses to determine whether an applicant is qualified for a position
be overturned unless it is arbitrary and capricious. It submits that it is entitled to give
appropriate written, oral, performance and other tests relevant to job
performance to determine the ability of competing applicants. It also maintains that it
can use tests.
It insists that it has the authority to determine qualifications and has not acted arbitrarily or
capriciously and the grievance is without merit and should be denied.
The Village insists that the tools it utilizes are only used to evaluate qualifications and
not change the qualifications as urged by the Union. It points out that under the contract,
is not considered until qualifications have been determined to be relatively equal, then it
decisive factor. It submits that the tools of testing and psychological profiles have been used
Village for many years with positions which involve some supervisory duties. The Village
the contract requires it to assess the qualifications of applicants and it has the inherent
use the methods to determine qualifications, as long as they are reasonable, fair and
nondiscriminatory. It submits that the grievance ignores the contract and should be
The Village contends that the Union has not satisfied its burden of proof that the
actions were unreasonable. It claims the Union has failed to prove any violation of Article 7
seeks denial of the grievance. The Village notes that it made appropriate assignments of
Foreman duties to the grievant during the period in question and observes that jobs are not
solely on the basis of seniority, which is demonstrated by the settlement agreement to post
position. The Village submits that the unrefuted facts show that after resolution of the first
all temporary Working Foreman assignments were first given to the grievant. The Village
that the grievance be denied.
The Union contends that the Village's arguments concerning an identical grievance
dropped should not be before the Arbitrator. The Union asserts that Grievance #97-1 was
settled when the Village agreed to post the position. The Union asserts the instant grievance
the additional requirements announced on September 9 and 15, 1997. The Union argues that
Village mischaracterizes Jansen's testimony with respect to his not objecting to being
Working Foreman duties. It states the record establishes that Jansen did not want to be
insubordination had he objected, and it was at Jansen's urging that the instant grievance was
The Union disputes the Village's assertion that the Village and Union had several discussions
only two meetings occurred, one to attempt to resolve Grievance #1-97 and the other to
resolve Grievance #2-97. It asserts that #1-97 was filed because the Village did not post the
and #2-97 because once it was posted, the Village did not follow the provisions of the
The Union asserts that the Village admitted it violated the contract. It claims that the
was required to follow all the provisions of the contract when it posted the position and it
add additional requirements after the posting of the position. It alleges that the
Village did not act in good faith because the additional requirements were added well
after the end
of the posting period rather than at the time of posting and were used in an attempt to
The Union states it is pleased that the Village finally followed seniority in assigning
grievant to work as Working Foreman after withdrawing the posting but the settlement of
to post and fill the position. It claims the Village distorts the facts and ignores the
maintains the record is clear that the grievant is the most senior employe, he is qualified, he
the posting and should have been the Grade V Working Foreman from September 17, 1997
October 31, 1997. It believes the Village was arbitrary and capricious in the assignment of
in this position from September 17, 1997 until October 31, 997. The Union argues that the
arguments on testing and how positions are awarded in other departments are not supportive
relevant. It submits that the Village grossly misstates the Union's position on posting a
is vacant for a short time. The Union contends that in settlement of Grievance #1-97, the
agreed to post the position and follow the language of the contract which it did not but came
other criteria to exclude the grievant from filling the position. It asks that the grievance be
and the grievant made whole.
The Village contends that the Union takes liberty with the facts in an attempt to
past, settled grievance. It points out that the Union asks for back pay asserting that Jansen
the position of Working Foreman on September 17, 1997 through October, 1997, yet the
only involves the form of the posting and besides, Jansen was not awarded the position for
Temporary Foreman duties, so the Union's position is not supported by the record. The
claims that the Union raised the issue of not filling the temporary position within ten days of
posting for the first time in its brief and the grievance never raised this issue nor did the
Union at any
time at the hearing. The Village repeats its arguments that the posting was pursuant to a
and the job description and pay rate were well known.
With respect to the Union's arguments on the use of a psychological profile and a
questionnaire, the Village maintains that Article 7 grants it the right to consider qualifications
tools it employed were designed to provide an objective decision. It concludes that the
misstates the record, makes new arguments and attempts to expand the grievance and places
The Village argues that the Union is attempting to litigate a subsequent grievance by
that Lamers is the most qualified applicant. It observes that the posting for the temporary
was withdrawn based on the incumbent Working Foreman's consideration of retirement.
retirement, the Village in fact posted the permanent vacancy and it asserts that the Union is
inappropriately attempting to litigate a dispute that arose over the
filling of the permanent vacancy. The Village insists that this proceeding should be
limited to the four
corners of the grievance filed in this matter. It argues that no temporary assignment was
there was no violation of the contract with respect to the posting of the temporary position
concludes that the grievance is without merit and should be denied.
The instant grievance alleged that the Village violated the collective bargaining
that the posting for the temporary Working Foreman position did not comply with the terms
collective bargaining agreement. The Village argues that it did not have to post the position
it was temporary but did so only because it agreed to do so in a grievance settlement of
#1-97. The exact terms of the grievance settlement were not reduced to writing but both
agree that the temporary position would be posted. It follows that absent some other
agreed in the settlement agreement, the posting had to be in accordance with the terms of the
collective bargaining agreement. The Village asserts that everyone knew the duties of the
Foreman position, the qualifications for it and the wage rate is set forth in the contract.
Even if this
were all true, the plain language of Section 7.02 must be followed. Assuming that the
violated the parties' collective bargaining agreement by not complying with the posting
the appropriate remedy would be to repost the position in compliance with the contract. The
evidence established that the posting was for a temporary vacancy which no longer exists. A
requiring there be a new posting in accordance with the collective bargaining agreement
meaningless because the temporary position related to the posting no longer exists. In other
the issue is moot because posting would not be applicable to a non-existent position.
The Union has requested back pay for the time from September 17, 1997 through
31, 1997. There is no evidence to support this. The Union in its brief at page 3 and its
at page 8 stated that Jansen filled the position during this period and cites the transcript, page
that is only the Union's opening statement. At page 8 of the Union's brief, it states that
in the position until it was posted in August, 1997. This conforms with Jansen's testimony
29). Therefore, the evidence fails to show that a less senior employe than the grievant,
performed the Working Foreman job during the period of September 17 and October 31,
collective bargaining agreement provides for a modified seniority clause, i.e., the most senior
is not automatically entitled to the job. Section 7.03 of the agreement provides that ability to
the work and qualifications shall take precedence over length of continuous service. Thus,
most senior but minimally qualified employe need not be selected. Additionally, the evidence
establish that Lamers would have been selected based on the factors set forth in Section 7.03
posting been implemented. Thus, the remedy of back pay for Lamers has not been proved,
noted above, any posting now would be moot as the temporary position is not in existence.
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The grievance is moot and is therefore denied.
Dated at Madison, Wisconsin, this 16th day of July, 1998.
Lionel L. Crowley, Arbitrator