BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHWEST UNITED EDUCATORS-
BARRON COUNTY SOCIAL SERVICES
(Peter Arnold Grievance)
The above-captioned parties, hereinafter NUE and the County, respectively, were
a collective bargaining agreement which provided for final and binding arbitration of
Pursuant to a request for arbitration, the Wisconsin Employment Relations Commission
the undersigned to decide a grievance. A hearing, which was not transcribed, was held on
1998, in Barron, Wisconsin. After the hearing the parties filed briefs, whereupon the record
closed on May 28, 1998. Based on the entire record, the undersigned issues the following
The parties were unable to stipulate to the issue(s) to be decided in this case. NUE
the issue as follows:
Did the County violate Article V, Section 5.01, when it denied
the grievant's request for the
vacancy in the Adult Services Unit? If so, what is the appropriate remedy?
The County framed the issues as follows:
1. Does Article V, Section 5.01, have any
application in the situation in which the position being
posted is a Social Worker I or Social Worker II position, and the employee who wishes to
post is already classified as a Social Worker II?
2. If so, did the County violate
the collective bargaining agreement when it did not award the
social worker position, which it posted in August, 1997, to the grievant?
3. If so, what is the
Having reviewed the record and arguments in this case, the undersigned finds the
issues appropriate for purposes of deciding this dispute:
1. Does Article V, Section 5.01, have any
application in the situation in which the position being
posted is a Social Worker I or Social Worker II position, and the employee who wishes to
post is already classified as a Social Worker II?
2. Did the County violate the
collective bargaining agreement when it decided to keep the
grievant in the Children's Unit and not transfer him to the Adult Services Unit as he
requested? If so, what is the appropriate remedy?
The parties' 1996-97 collective bargaining agreement contained the following
ARTICLE V- PROMOTIONS
5.01 When the County chooses to fill a vacancy or create a
new job, a notice of the vacancy
shall be posted on the employees' bulletin board for at least five (5) days concurrent with
advertisement of the position. Said notice shall
contain the prerequisites for the position, and said prerequisites
shall be consistent with the
requirements for the position. Those employees within the bargaining unit who meet the
may apply. Probationary employees, however, may not post for positions, except in the sole
discretion of the County. Following the five (5) day notice, applicants will be tested
according to the
requirements of the Merit System Rule. In the event none of the bargaining unit applicants
the County may then hire an external applicant for the position.
5.02 Social Worker I will be reclassified to a Social Worker II
after two years of experience
as a Social Worker I in the Barron County Department of Social Services, satisfactory
and achievement of the Merit System minimum inservice training requirements. Social
will be eligible for reclassification to a Social Worker III after they have had three years of
as a Social Worker II, 12 graduate credits from an accredited school of social work or
programs, 255 hours of inservice training, and specified staff development actitvities.
from a Social Worker II to a Social Worker III will be at the discretion of the Employer.
. . .
ARTICLE XXII MANAGEMENT
22.01 The Employer possesses the right to operate the
Department and all management rights
repose in it, subject only to the provisions of this contract and applicable law. These rights
include, but are not limited to, the following:
A. To direct all
operations of the Department;
B. To establish
reasonable work rules;
C. To hire, promote,
transfer and assign employees in positions within the Department;
D. To relieve employees
from their duties subject to other provisions in this contract;
E. To maintain
efficiency of department operations;
F. To take whatever action is necessary to
comply with state or federal law or to
respond to emergencies;
G. To introduce new or
change existing methods or facilities;
H. To determine the
kinds and amounts of services to be performed as pertains to
I. To contract out for
goods or services provided there is no layoff of existing
J. To determine the
methods, means and personnel by which department operations are
to be conducted.
. . .
NUE is the exclusive collective bargaining representative for the professional
employes in the
County's Department of Social Services. The bargaining unit now consists solely of social
Grievant Peter Arnold is a social worker and thus is a member of that bargaining unit.
three categories of Social Workers: I, II and III. Arnold is a Social Worker II.
The Department of Social Services has several units. The units which are pertinent
the Children's Unit and the Adult Services Unit. As the titles of these units indicate, the
workers in the Children's Unit work with children and the social workers in the Adult
work with adults. Arnold currently works in the Children's Unit.
In August, 1997, the County posted a vacancy for a Social Worker I or II. The
SOCIAL WORKER I OR SOCIAL WORKER II:
requires four-year degree in Social Work; knowledge and
abilities in human service systems, assessment and development of social work plans, human
growth and development and therapy techniques. SW II requires a minimum of two years of
social work experience.
Starting Date: September 1, 1997, or thereafter
Salary: $2,243 - $2,423 per
After the position was posted, Arnold heard rumors via the office grapevine that
filled the (posted) position would probably be assigned to work in the Adult Services Unit.
decided he wanted to work in that unit, so he applied for the posting. His written request
August 6, 1997
Shirley H. McGiffin, Director
Barron County Department
of Social Services
Dear Ms. McGiffin:
This correspondence is to request that I be
considered for the Social Worker position available
in the Adult Services Unit.
I have been a dedicated employee in the
Children's and Family Unit of the Barron County
Department of Social Services for seven years. During these years, I have experienced many
and would look forward to the new challenges the Adult Services position would offer.
My skills in working with a wide variety of
ages, personalities and ethnicities have grown
steadily. As a result, I feel confident that I could assume the responsibilities of the new
without difficulty. Given the opportunity, I feel I would be an asset to the unit. I continue
forward to working for the Department and serving the people of Barron County.
Thank you for your consideration in this
Peter T. Arnold /s/
Peter T. Arnold
Social Worker II
In a memo dated September 25, 1997, McGiffin responded to Arnold as follows:
To: Peter Arnold, Social Worker
From: Shirley H. McGiffin, Director
Date: September 25, 1997
Re: Social Worker Position
Adult Services Unit
This memo is written to acknowledge
receipt of your request of August 6, 1997, to move from
the Children and Family Services Unit to the Adult Services Unit.
Based on the needs of the Department, your
request is being denied. I believe your skills are best
utilized in the Children and Family Services Unit.
McGiffin acknowledged at the hearing that Arnold was qualified for the posted
further acknowledged he was qualified to work in the Adult Services Unit. McGiffin
nonetheless denied Arnold's request to be removed from the Children's Unit and assigned to
Adult Services Unit for two reasons. First, she felt Arnold should stay in the Children's
it would be difficult for a newly-hired social worker to work on the hard cases Arnold was
handling in the Children's Unit. Second, she knew that the Children's Unit would soon be
social workers because one was on maternity leave and another was expected to leave soon
husband was looking for another job. There are eight social workers in the Children's Unit.
The County subsequently decided to hire an external applicant for the vacancy.
position was not filled by an internal applicant. The external applicant who was hired was
subsequently assigned to work in the Adult Services Unit.
NUE filed a grievance on Arnold's behalf on September 30, 1997 challenging the
his request to be transferred to the Adult Services Unit. The County denied the grievance
matter was ultimately appealed to arbitration.
The record indicates that the Department has used the same generic format for
worker positions for decades. For example, a 1978 posting for a Social Worker I position
same three categories (i.e. qualifications, starting date and salary) as are listed on the posting
here. Insofar as the record shows, none of the Department's previous job postings have
job duties. Thus, after an employe posts for and is awarded a Social Worker position, there
on the job posting which guarantees that the employe will perform specific job duties.
The record further indicates that social workers can have their job assignments
management deems it necessary to do so. This has happened on numerous occasions. As an
example, a social worker who normally performs Adult Services duties can be assigned to
Intake duties. When this has happened, NUE has not grieved management's right to change
The record further indicates that the first collective bargaining agreement for the
social services employes was negotiated about 1971. The job posting language in the parties'
labor agreement was the same as in the current labor agreement. Thus, the job posting
not been changed over the years. When the initial bargaining unit was formed, professional
and non-professional employes were included in the same bargaining unit. The Child
Support employes were
added in 1976. Effective with the 1989-90 collective bargaining agreement, the single
was split into two bargaining units one for professional employes and one for
employes. Prior to the split into two bargaining units, non-professional employes had
into professional positions, subject to their qualifications and seniority. The record contains
examples of non-professional employes who posted into professional positions. After the
agreed to split the bargaining unit into separate professional and non-professional bargaining
the opportunities for promotions of this type were diminished.
Another change in the composition of the professional bargaining unit occurred
July, 1996, the County created a Child Support Agency which was separate from the
Social Services. When this happened, the County petitioned the Wisconsin Employment
Commission to remove the Child Support positions from the bargaining unit and proposed the
creation of a separate and new bargaining unit for the professional courthouse employes.
1997, the Wisconsin Employment Relations Commission ruled in favor of the County on that
and as a result the instant bargaining unit in the Department of Social Services is now
solely of social workers.
POSITIONS OF THE PARTIES
NUE views this case as a job posting case. That being so, it relies exclusively on the
provision (Sec. 5.01) to support its case. It contends the grievant's job posting rights were
when the County denied his transfer request. It makes the following arguments to support
First, NUE notes at the outset that the County interprets Sec. 5.01 (the posting
apply only to those situations where a Social Worker I posts for a Social Worker II position.
Association reads that provision differently. Specifically, it reads Sec. 5.01 to also apply to
situation, like the one herein, where a Social Worker II bids for another Social Worker II
The Association asserts that were it otherwise, and a Social Worker II could not bid for
Social Worker II position, this would mean that a Social Worker II would have no further
rights under the contract because the Association acknowledges that Social Worker IIs cannot
into Social Worker III positions. NUE argues that the County's interpretation of Sec. 5.01 is
erroneous. According to NUE, there is nothing in the posting provision which prevents a
Worker II from posting into a different Social Worker II position, or for that matter, even a
Social Worker I position (which admittedly would entail a reduction in pay). NUE argues
there is nothing in Sec. 5.01 which precludes a Social Worker II from bidding into another
Worker II position, the County is trying to add language to that provision that does not exist.
making this argument, NUE acknowledges the point that the County has the right to transfer
assign employes within the Department. It further acknowledges the point that if the grievant
awarded the position in the Adult Services Unit, he could still be reassigned by management
to the Children's Unit. Nonetheless, NUE argues that these two points do not eliminate the
posting rights which are granted to employes under Sec. 5.01. According to NUE, the
ignored the grievant's job posting rights in this instance. It argues it was a contract violation
so. As NUE sees it, a contrary interpretation of Sec. 5.01 will render that language
Second, NUE comments on the grievant's qualifications for the position in the Adult
Unit. It notes in this regard that he has eight years experience with the Department. It
him as a valuable employe and notes that his supervisors wished him well in his effort to get
vacant (Social Worker) position in the Adult Services Unit. It therefore argues the grievant
qualified for the posted position.
In order to remedy this alleged contractual breach of the posting language, NUE asks
grievant be awarded the position he sought in the Adult Services Unit and that the employe
in that position be reassigned to the grievant's position in the Children's Unit.
The County disputes NUE's assertion that this is a job posting case. In the County's
this is not a job posting case, but rather a work assignment case. That being so, the County
the contract provision covering work assignments (Article XXII) to support its position here.
contends that provision specifically gives it the right to make work
assignments, so it did not violate the contract when it denied the grievant's request to
the Children's Unit. It makes the following arguments to support this contention.
First, the County addresses Articles V and XXII of the contract and their applicability
It argues that Article V, specifically Section 5.01 which NUE relies on, does not apply to
situation. The premise for this argument is as follows. It notes at the outset that the position
was posted was a Social Worker position, not an Adult Services Unit position. It also notes
job posting did not list specific job duties. The County believes these points are significant
the grievant already is a Social Worker II and he signed a posting to be hired as a Social
The County avers that by signing the posting, the grievant was not seeking a promotion
already works as and is paid as a Social Worker II. Rather, he was trying to use the
provision as a vehicle for selecting specific job duties (namely, Adult Services duties). The
asserts that the assignment of job duties has been expressly reserved to management by the
Management Rights clause (Article XXII). It contends the application of that provision here
the County's position. The County asserts that if the Union wants Section 5.01 to apply to
assignment of duties within the same classification (i.e. Social Worker II), then the Union
bargain for and obtain an express definition of "promotion" which provides for the posting of
rather than positions.
Second, the County argues that past practice supports its position here. It notes in
that management has used generic postings for Social Worker positions for many years which
listed job duties in the postings, just job titles. Thus, employes have not been guaranteed
duties. It also notes that for many years, management has changed the duties performed by
social workers based on the needs of the Department, and the Union has never challenged
management's right to make those assignments. The County believes that this past practice
it clear that Article V has no application in the situation in which the posting is for a Social
II position, and the employe is already classified as a Social Worker II.
Third, the County addresses what it characterizes as the history of the bargaining
notes in this regard that while the current unit is comprised solely of social workers, the unit
previously consisted of more classifications of employes. The County avers that when it did,
were more promotional opportunities than exist now. The County submits that the
opportunities for posting is not the result of an onerous contract interpretation, but rather the
of the bargaining history just noted.
Finally, the County argues that its decision to continue to assign the grievant duties in
Children's Unit was neither arbitrary nor capricious. It cites the following to support this
First, it notes that had it granted the grievant's transfer request to move to the Adult
Services Unit, it would be three social workers short in the Children's Unit. Second,
the County calls
attention to the fact that it is up to management to best utilize staff to get the work done.
McGiffin felt it would be hard for a newly-hired social worker to step in and work on the
which the grievant had been working on in the Children's Unit, and her belief has not been
Based on the reasons set forth above, the County requests that the grievance be
It is noted at the outset that the parties have approached this contract interpretation
different perspectives. NUE sees it as a job posting case and therefore relies on the posting
contained in Section 5.01 (the promotion provision). In contrast, the County sees it as a
assignment case and therefore relies on the work assignment language contained in Article
management rights clause). In the analysis which follows, I find it is a work assignment case
by Article XXII.
Attention is focused first on Article V, Section 5.01. Article V is entitled
first section of that Article, Sec. 5.01, deals with the filling of positions. An overview of
follows. The first sentence provides that in the event the County chooses to fill a vacancy or
a new job, the County will post the vacancy. The second sentence provides that the posting
contain the prerequisites for the position. The third sentence provides that bargaining unit
who meet the position's prerequisites may apply for same. The fourth and fifth sentences
bearing on this case and therefore are not summarized here. The last sentence of the section
that if none of the bargaining unit applicants qualify, the County may hire an external
While at first blush this case would appear to be covered by Section 5.01 since a
involved, I find that section has no application herein. The following shows why. My
begins with a review of the facts pertinent to the posting. In August, 1997, the County
fill a vacant Social Worker I or II position, so it posted the vacancy. This posting listed the
prerequisites for the position. The grievant subsequently asked to be considered for the
There is no question that the grievant possessed all the prerequisites for the Social Worker I
position because at the time he was already classified as, and paid as, a Social Worker II.
The last point referenced above is important in this case because the grievant was not
a promotion when he asked to be considered for the Social Worker I or II vacancy. By that,
he was not seeking a promotion in the traditional sense (i.e. a higher salary, supervisory
responsibilities, etc.) Instead, what the grievant was trying to do when he asked to
be considered for the posted vacancy is use the posting provision as a vehicle for
job duties. Specifically, he wanted to move into the Adult Services Unit from the
While the posting in question did not list any job duties or identify which unit the person
assigned, the grievant heard via the office grapevine that whoever filled the position would
be assigned to the Adult Services Unit. His letter to McGiffin made it clear that he wanted
into the Adult Services Unit. In essence then, the grievant sought a transfer from one unit to
NUE believes the posting language covers transfers. However, notwithstanding
contention to the contrary, the posting language does not apply to or cover transfers and the
assignment of job duties. Instead, another contract provision does. That provision will be
Article XXII (the Management Rights clause) covers, among other things, transfers
assignment of job duties. That clause specifically gives management the right to transfer
and to assign them specific job duties. In this case, management decided to not grant the
transfer request. The Management Rights clause gives management the right to make that
provided its decision was not arbitrary or capricious.
I find that management's decision to not grant the grievant's transfer request was not
or capricious because of the following record evidence. First, at the time the grievant
transfer out of the Children's Unit, that unit was already about to be down two social
workers. If the
grievant had transferred out, the unit would be down one more. Second, Director McGiffin
would be difficult for a newly-hired social worker to step in and work on the hard cases the
was then handling in the Children's Unit. Nothing in the record establishes that her belief
exaggerated or overblown. It is therefore held that the County did not act arbitrarily or
when it decided to keep the grievant in the Children's Unit and not transfer him to the Adult
NUE argues that if a Social Worker II cannot bid for another Social Worker II
different duties, then for all intents and purposes a Social Worker II has no further posting
under the contract. As a practical matter, that is true. However, the fact that posting rights
Social Worker IIs are limited cannot be attributed solely to the interpretation of Sec. 5.01
above. There are other factors as well. First, there is another contractual basis in that the
have agreed that Social Worker IIs cannot post into Social Worker III positions. In Section
it specifically provides that promotion from a Social Worker II to a Social Worker III is at
discretion of the Employer. Since just two of the Department's 24 social workers are
Social Worker IIIs, it can be inferred that the County has exercised its discretion (to
sparingly. Second, the record indicates that promotional opportunities for unit employes
diminished over the years as the number of
classifications in the unit have decreased. Thus, the reduction in the size of the
bargaining unit is also
responsible for the diminished posting opportunities for Social Worker IIs.
Finally, it is noted that the County's past practice buttresses the result reached herein.
following shows this. To begin with, the record indicates that for decades the County has
what can be characterized as generic postings for Social Worker I and II positions. These
contained the qualifications needed, the starting date and the salary. None of these postings
specific job duties, nor did they identify which unit the employe would be assigned to (such
Children's Unit, the Adult Services Unit, etc.) This means that past postings have not
social workers would perform specific job duties. The posting involved here was similar to
postings. It likewise did not guarantee that whoever filled the position would be assigned
duties (such as working in the Children's Unit). Second, it has previously been noted that
management has the contractual right to change the duties performed by social workers. The
indicates that over the years, management has exercised that right on numerous occasions.
Specifically, social workers assigned to one unit have been assigned to perform duties in
When this has happened, NUE has not challenged management's right to change work
Third, the posting provision contained in Section 5.01 has not previously been interpreted as
employes to post for specific duties they would like to perform (such as working in the
Unit). If NUE wants Section 5.01 to apply to transfers and the assignment of duties within
classification (i.e. such as the Social Worker II classification), it must bargain a change in
Based on the foregoing and the record as a whole, the undersigned enters the
1. That Article V, Section 5.01, does not have any application in the situation in
the position being posted is a Social Worker I or Social Worker II position, and the employe
wishes to post is already classified as a Social Worker II.
2. That the County did not violate the collective bargaining agreement when it
to keep the grievant in the Children's Unit and not transfer him to the Adult Services Unit as
requested. Therefore, the grievance is denied.
Dated at Madison, Wisconsin this 19th day of August, 1998.
Raleigh Jones, Arbitrator