BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
COMMUNICATIONS WORKERS OF AMERICA,
Communications Workers of America, AFL-CIO, hereinafter referred to as the
Douglas County, hereinafter referred to as the County, are parties to a collective bargaining
agreement which provides for the final and binding arbitration of disputes arising thereunder.
Union made a request, with the concurrence of the County, that the Wisconsin Employment
Commission designate a member of its staff to act as an arbitrator to hear and decide a
the meaning and application of the terms of the agreement. The undersigned was so
Hearing was held in Superior, Wisconsin, on August 26, 1998. The hearing was not
the parties waived briefs and final arguments.
The County had a Victim Witness office which was staffed by a Victim Witness
Coordinator, a Victim Witness Specialist, which were non-bargaining unit positions, and a
a position included in the unit. On August 18, 1997, the Victim Witness Specialist
resigned effective August 19, 1997. The Victim Witness Specialist, Kathy Senn, then
Coordinator. The Secretary, Darleen Geyer, had been
performing many of the Coordinator's duties since 1994. Although Geyer complained
performing these duties, nothing changed. Geyer went on a medical leave from August 4,
September 5, 1997 due to job stress. Upon her return to work, Geyer informed Kathy Senn
would no longer do specialist work unless properly compensated. There were discussions
Victim Witness office would be restructured and brought into the District Attorney's office.
the restructuring, Geyer would assume and get paid for Specialist duties. On October 13,
Geyer was given Victim Witness assignments.
The grievant, a legal secretary in the District Attorney's office, was informed of the
Witness position but because it was not in the unit, it would be posted as a non-represented
and the grievant could not use unit status to claim the position. In November 1997, the
Attorney told the grievant the position would be in the unit and asked if she would apply and
grievant indicated she would decide after she saw the posting. The District Attorney sent a
to restructure the Victim Witness office to various County Board Committees. In January
wage rate for the Victim Witness Specialist was suggested to be $12.92 per hour. On
1998, the County Board approved the concept to restructure the Victim Witness office within
District Attorney's office.
On or about February 25, 1998, Candace Fitzgerald, Assistant to the Administrator
Susan Sandvick, President of Local 4646, CWA and informed her that the County would
non-unit Victim Witness Specialist position in the unit as well as a new part-time
position if Geyer would remain in the Specialist position and this position would not be
or about March 6, 1998, Sandvick informed Fitzgerald that the Union did not have a
this as long as the District Attorney explained to his staff what was going on and members
have an interest in applying for the position. By a letter dated March 6, 1998, Fitzgerald
the job to Geyer who accepted it on March 10, 1998.
On March 19, 1998, Sandvick sent a letter to Fitzgerald asserting that the situation
discussed by the District Attorney with his staff and requested that the position be posted.
23, 1998, Sandvick notified the District Attorney of a potential grievance on the Victim
On April 2, 1998, the Union filed a grievance over the matter. Thereafter the Union
County met on a number of occasions in an attempt to resolve the matter. On June 4, 1998,
parties reached a Memorandum of Understanding which required approval by the Personnel
Committee. On June 10, 1998, the Personnel Committee rejected the Memorandum of
Understanding and the grievance was processed to the instant arbitration.
The Union views the issue as follows:
Did the County violate Article 9, Section 9.02 of
the collective bargaining agreement
by its failure to post the Victim Witness Specialist position?
If so, what is the
The County states the issue thusly:
Did the County violate any
provision of the 1996-97 CWA contract when it followed
the past practice of placing an existing job and the individual currently performing the duties
of a non-represented position into the bargaining unit without posting the position?
If so, what is the
The undersigned adopts the Union's statement of the issue.
. . .
9.02 Job Posting
A. In making promotions and
filling vacancies of new jobs, the policy of seniority shall
prevail, provided, however, that the senior employee considered for the job was able and
to perform the work.
B. Whenever any job vacancy or
new position occurs, a notice of said vacancy or new
position shall be posted in the affected department and on the employees' bulletin board in
building occupied by the employees within the bargaining unit at least five (5) working days.
notice shall contain the prerequisites for the position which shall be consistent with the job
classification and requirements.
The Union contends that the award of the Victim Witness Specialist position to Geyer
not a reclassification as argued by the County but rather was a promotion. The Union denies
there was any agreement by it to waive the posting requirement pursuant to Sec. 9.02 of the
agreement. It asserts that this was a promotion which is an upward movement requiring
and thus it should have been posted as required by the contract.
The County contends that it included a non-represented position in the bargaining unit
the incumbent remained in the position and it was not obligated to post the position. It
it followed past practice on how a filled position has been included in the bargaining unit. It
that it would not have agreed to include the position in the bargaining unit without protecting
incumbent. It concludes that there is no violation of the contract.
It is undisputed that prior to January 15, 1998, the position of Victim Witness
not included in the bargaining unit. The testimony established that Darleen Geyer had been
performing duties of this position for some period of time and the written evidence
Geyer had cases assigned to her at least since October 13, 1997. There were discussions
the County and the Union concerning inclusion of the position of Victim Witness Specialist
as a part-time Receptionist position in the bargaining unit, provided Geyer remained in the
of Victim Witness Specialist and the position would not be posted under the contract. The
is whether the parties reached an agreement on this. If there was an agreement, then the
waived posting of the position and there would be no violation of the collective bargaining
If no agreement was reached, then the County cannot be held to its offer to include the
Witness Specialist position within the bargaining unit. If it remains out, then the County
could fill it
in accordance with its own procedures and would not be obligated to post it under the
either scenario, no posting would be required.
It would appear that no agreement was reached. It is clear from the testimony of
that the County would not agree to include the position in the unit without a quid pro
that the incumbent Geyer would remain in the position and there would be no posting. The
conditioned its agreement to the County's proposal on the District Attorney letting his staff
what was going on and no other CWA member in the office indicating an interest in the
Inasmuch as a CWA member indicated an interest, this condition was not met and thus there
agreement. The Union cannot insist that the County is obligated by its offer to include the
in the unit because the Union never accepted the additional proviso that it would not be
offer was rejected. There
appears no evidence in the record that the County would have agreed to put the
position in the unit
if it had to post it. Thus, it is concluded that there was no agreement reached by the parties
position was not agreed by the parties to be accreted to the unit and as it is not in the unit, it
be posted in accordance with Sec. 9.02 of the contract.
Based on the above and foregoing and the record as a whole, the undersigned issues
The County did not violate Article 9, Sec. 9.02 of the collective bargaining
failure to post the Victim Witness Specialist position; and therefore, the grievance is denied.
Dated at Madison, Wisconsin this 11th day of September, 1998.
Lionel L. Crowley, Arbitrator