BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY COURTHOUSE
EMPLOYEES, LOCAL 332-A, AFSCME,
Mr. Phil Salamone, Staff Representative, Wisconsin Council 40,
on behalf of Local 332-A, AFSCME, AFL-CIO.
Mr. John Mulder, Administrative Coordinator, on behalf of
On December 4, 1997, Lincoln County Courthouse Employees, Local 332-A,
AFSCME, AFL-CIO, hereinafter the Union, requested that the Wisconsin Employment
Relations Commission appoint a staff arbitrator to hear and decide the instant dispute
the Union and Lincoln County, hereinafter the County, in accordance with the grievance and
arbitration procedures contained in the parties' labor agreement. The County subsequently
concurred in the request and the undersigned, David E. Shaw, of the Commission's staff,
designated to arbitrate in the dispute. A hearing was held before the undersigned on
18, 1998 in Merrill, Wisconsin. There was no stenographic transcript made of the hearing
the post-hearing briefing schedule was completed by April 19, 1998. Based upon the
evidence and the arguments of the parties, the undersigned makes and issues the following
The parties stipulated that there are no procedural issues and to the following
statement of the substantive issue:
Did the Employer violate the Collective Bargaining Agreement by
reclassification of the Grievant effective July 1, 1998, rather than the first pay period after
October 7, 1997 action of the Personnel Committee? If so, what is the appropriate remedy?
The following provisions of the parties' Agreement are cited, in relevant part:
ARTICLE 2 MANAGEMENT RIGHTS
2.01 The County possesses the sole right to operate County
government and all
management rights repose in it, subject only to the provisions of this Agreement and
applicable law. These rights include, but are not limited to the following:
A. To direct all operations of the County;
. . .
J. To manage and direct the working force,
to make assignments of jobs, to
determine the size and composition of the work force, and to determine the
work to be performed by employees;
. . .
L. To determine the methods, means and
personnel by which operations are to
Any unreasonable exercise or application of the above
mentioned management rights,
which are mandatorily bargainable shall be appealable through the grievance and arbitration
procedure; however, the pendency of any grievance or arbitration shall not restrict the right
of the County to continue to exercise these management rights until the issue is resolved.
. . .
ARTICLE 5 GRIEVANCE PROCEDURE
. . .
. . .
6. Decision of the Arbitrator: The decision of the arbitrator
shall be limited to
the subject matter of the grievance and shall be restricted solely to the interpretation of the
contract in the area where the alleged breach occurred. The arbitrator shall not modify, add
to, or delete from the terms of the Agreement.
5.03 General Provisions:
2. Adjustments from Grievance
Conferences: Any adjustments resulting from
the grievance conferences under this provision shall not be inconsistent with the terms of this
. . .
ARTICLE 12 RECLASSIFICATION
12.01 An employee seeking a reclassification shall present
request in writing to
the department head. The department head shall notify the employee in writing of his/her
recommendation within ten (10) working days. This recommendation shall be forwarded to
the Personnel Committee for consideration at the next regulaly scheduled meeting.
A union employee who is reclassified shall
be paid at the pay rate in the new pay grade
to which the position is reclassified consistent with the employee's length of service with the
The effective date of the reclassification
shall be the first day of the first pay period
following approval. Page 4
The Grievant has been employed by the County since November of 1992. In January
of 1997, the Grievant held the position of Finance Clerk in the County's Finance Office. In
April of 1997, the position of Clerical Assistant in the Clerk of Courts Office was posted.
Although it was a lower-paying position, the Grievant posted for the Clerical Assistant
position. The Grievant testified that she did so because she felt the position had fewer
responsibilities and would be less stressful.
The Clerical Assistant position was awarded to the Grievant and she started in the
position in May of 1997. At the time, the Clerk of Courts Office had eight positions under
the Clerk of Courts, Cindy Kimmons: Deputy Clerk of Court, Accountant/Bookkeeper,
Legal Secretary (Criminal Clerk), Small Claims Clerk, Fiscal Clerks (2), and Clerical
Assistants (2). Part of the Grievant's duties as a Clerical Assistant was to serve as a backup
for the Criminal Clerk. The Grievant testified she felt that the duties and responsibilities
such that a reclassification was merited and on June 23, 1997, requested that her position be
reclassified to Legal Secretary. The Clerk of Courts supported a reclassification of the
Grievant's position to Fiscal Clerk, but not to Legal Secretary. The Grievant renewed her
request to be reclassified to Legal Secretary by a letter in early August of 1997 to the
County's Personnel Committee. Her request was denied and a grievance was thereafter
The Grievant subsequently revised her request to request reclassification to Fiscal Clerk,
which was supported by the Clerk of Courts. The other Clerical Assistant in the Clerk of
Courts office, Dawn Dunbar, also requested that she be reclassified to Fiscal Clerk.
At its October 7, 1997 meeting, the Personnel Committee took up the matter of
reclassification requests in closed session, including the Grievant's and Dunbar's requests.
The Personnel Committee recommended that the requests of the Grievant and Dunbar be
granted, but "not to become effective until July 1, 1998, and with the provision that
cross-training be completed and verified by the Administrative Coordinator before becoming
On October 21, 1997, the County Board considered and passed Resolution No.
entitled "APPROVAL OF RECLASSIFICATION OF CERTAIN POSITIONS IN THE
COURTHOUSE UNION." In relevant part, Resolution No. 41-97 states:
Current Incumbent: Dawn Dunbar
Department: Clerk of
Current Position: Clerical
New Position: Fiscal Clerk
Effective Date: July 1, 1998
providing that cross-training is
completed and verified by the Administrative Coordinator
Annual Fiscal Impact: $1,860.00
Current Incumbent: Laurie Kriewald
Department: Clerk of
Current Position: Clerical
New Position: Fiscal Clerk
Effective Date: July 1, 1998
providing that cross-training is
completed and verified by the Administrative Coordinator
Annual Fiscal Impact:
The Grievant grieved the effective date of her reclassification.
On November 7, 1997, the Grievant asked the County's Administrative Coordinator,
John Mulder, for a list of the duties besides the Criminal Clerk's, for which she was to be
cross-trained before July 1, 1998. As a result of that conversation, the Grievant sent Mulder
the following letter of November 18, 1997:
This letter is in reference to Resolution
#41-97 which was passed at the County Board
meeting on October 21, 1997. First, I would like to thank you and the Personnel Committee
for recognizing the need and appropriateness of the reclassification.
However, I feel there is a bit of confusion
on the subject of cross training. I was
under the assumption that I was to cross train in the position of Criminal Clerk. Talking to
you on November 7, 1997, lead (sic) me to believe I was to learn several different jobs in
Clerk of Courts office. Among which include, Divorce, Paternity, Family and Receipting
Child Support, in addition to Criminal.
Because of this confusion, I am requesting
that you clarify the tasks ahead for me.
I believe that in all fairness to both sides, you should provide me with a detailed check list of
all of the new duties that I am to learn in the next few months. By doing so, this will
there is a good faith attempt on each side to accomplish the cross training.
In addition to the list of cross training, I
am requesting you provide me with a formal
denial on the grievance brought before the Personnel Committee November 5, 1997.
Laurie Kriewald /s/
Mulder responded to the Grievant's request with the following memorandum of
November 25, 1997:
TO: Laurie Kriewald
Mulder, Administrative Coordinator
November 25, 1997
Cross training request
Attached per your request is the denial of
your grievance by the Personnel Committee.
This denial was provided to your Union representative. In regards to your request for a
list for the cross training, I informed you on November 7, 1997 that I was not willing or
prepared to provide you with this information at this time. However, I will provide a written
plan for cross training prior to Jan 31, 1998. This plan will be detailed enough to
that you have been cross trained in the appropriate areas by July 1, 1998 if you follow the
At time of hearing, the Grievant had not yet been provided with further details as to
the cross-training she was to complete by July 1, 1998.
The parties attempted to resolve their dispute, but were unsuccessful and proceeded
to arbitrate the grievance before the undersigned.
POSITIONS OF THE PARTIES
The Union takes the position that the County violated Section 12.01 of the parties'
Agreement when it granted the Grievant's reclassification, but made it effective at a date
than the first day of the first pay period following its approval. The Grievant was granted a
reclassification and the Agreement clearly and unequivocally spells out the precise timing of
the assignment to the new wage of the reclassification. Section 12.01 of the Agreement
explicitly states that "The effective date of the reclassification shall be the first
day of the first
pay period following approval." (Emphasis added). The County granted the reclassification
on October 21, 1997, but made it effective July 1 of 1998, rather than the next pay period.
The Union asserts that even the Personnel Director acknowledged in his testimony that if the
effective date was one day later than the next pay period, he believed the Agreement would
The testimony clearly established that the Grievant has been regularly performing
work that is similar, if not identical, to other employes paid at the Fiscal Clerk wage rate.
Thus, even absent the clear and definitive language of Article 12, the County would be in
violation of the contractual wage schedule.
There is, however, such clear language in the Agreement and there is no reasonable
basis for making the effective date of the reclassification any time other than that expressly
required by contract. It is a well-established principle of contract interpretation that clear
unambiguous contract language must be given its full effect according to its terms. The
Union cites a Wisconsin Supreme Court decision as holding that an arbitrator is without
authority to ignore or amend clear and unambiguous contract language. Milwaukee Police
Association v. Lund, 97 Wis.2d 15 (1980). Thus, there can be little question that the
Agreement has been violated.
With regard to the appropriate remedy, the Union asserts that the Agreement at
Article 5, Section 5.02(6) and Section 5.03(2), requires that any remedy or adjustments must
be consistent with the terms of the Agreement. As the subject matter of this grievance is the
timing of the reclassification award (the reclassification decision itself, not being in dispute),
there is no other reasonable remedy other than directing the County to follow the specific
contract language requiring the effective date of the reclassification to be the next pay period.
The County takes the position that it did not violate the contract for a
reasons. First, under Article 2, Management Rights, of the Agreement, the County has the
right to "Manage and direct the working force, to make assignments of jobs, to determine the
size and composition of the work force, and to determine the work to be performed by
employees." In that regard, the County has established certain positions within the Clerk of
Courts Office. Article 12, Reclassification, of the Agreement, provides a way for an
to obtain a promotion without waiting for an opening and then posting into that position
based on the procedures outlined in Article 11 of the Agreement. In effect, in the
reclassification process, the County creates a different position specifically for the person
making the request. When the County provides a reclassification they are changing the
number and types of positions, and the Union tacitly agrees that the person in the position
does not have to compete with other employes for the new position. In this case, the County
announced that it would eliminate two Clerical Assistant positions in the Clerk of Courts
Office and create two additional Fiscal Clerk positions on July 1, 1998, provided the two
incumbent Clerical Assistants were cross-trained.
Second, the Grievant is performing the work of a Clerical Assistant consistent with
the job posting and job description for that position. Thus, she is not a Fiscal Clerk and
should not be reclassified. In that regard, the job posting used to fill the position in May of
1997 was for a Clerical Assistant, and that is the position the Grievant accepted. The
listed the specific duties of the position, the job title and the wage rate of the position. The
job description for the Clerical Assistant position is a general job description for that
classification. Examples of work listed in the job description are consistent with the duties
listed on the job posting. The job description for the Fiscal Clerk position includes, "Posts
vouchers, prepares payroll, keeps track of salary increases, new employes, terminations,
prepares vouchers and statements, assists in preparing the annual budget." None of those
duties are included in the posting for the Clerical Assistant position, nor are they in the
Grievant's description of her duties. In her letter to the Clerk of Courts, the Grievant laid
justification for her request to reclassification to Legal Secretary; however, the job
upon which she relies in her letter to justify her request for reclassification are consistent
the duties listed in the job posting. Based upon the job description of the Clerical Assistant
position, it is unclear what the Grievant was surprised about regarding the duties of the
position. Further, if the Grievant felt that the level of responsibility was too much, she had
the right under the Agreement to return to her former position pursuant to Article 11, Section
Third, the Personnel Committee could have simply denied the Grievant's
reclassification request. Instead, the Committee reviewed the organization chart of the Clerk
of Courts Office and decided that, from an organizational standpoint, eliminating the two
Clerical Assistant positions and creating two additional Fiscal Clerk positions had some
provided that the Fiscal Clerks were cross-trained and could fill in for each other and provide
back up for other positions within the Department. Given the language in Article 12,
the Committee should have denied the reclassification and set in motion the cross-training,
and then reconsidered the reclassification requests at a later date. Had it done so, that would
potentially have left the Grievant wondering if the Committee would grant the reclassification
later and would have forced her to reappear before the Committee with her request at a later
date. Instead, the Committee announced its decision that it would approve the
reclassifications when the contingency of the cross-training was completed. In effect, the
reclassification requests were not granted on October 7, 1997; rather, the Committee
announced its decision that it would grant the reclassifications when the conditions were met.
Fourth, the County asserts that there is not unanimity amongst the Union's
membership, nor consistency on the part of the Union, as to the validity of the grievance.
other employe in the Clerical Assistant classification in the Clerk of Courts was granted the
same reclassification under the same conditions, but did not grieve that action. While the
Union dismisses this as the employe's personal preference with allegations of retaliation,
is no evidence of retaliation in the past, or of any specifically directed toward that employe.
Further, the Agreement specifically allows the Union to file a grievance, but it did not do so.
With regard to remedy, the County asserts that if it is found to have violated the
contract, the Union's proposed remedy is inappropriate. Based on the issue and the
asserted by the County, it is not the Arbitrator's role to decide whether the Grievant should
be paid at the Fiscal Clerk rate of pay. If it is found that the County cannot place a
on the reclassification, then the Personnel Committee should be required to reconsider the
request. That is, if the County violated the Agreement by postponing the reclassification,
the Committee's action is void, and would be
rescinded. The Union's proposed remedy does not automatically follow from a
that the contract was violated and to award the remedy suggested would be beyond the
Arbitrator's authority and in violation of Article 5.02, paragraph 6, which provides that,
Arbitrator shall be restricted solely to the interpretation of the contract in the area where the
alleged breach occurred. The arbitrator shall not modify, add to, or delete from the terms of
Despite the County's argument on this point, the question of whether a
of the Grievant's position was, or was not, justified is not before this Arbitrator. The
stipulated issue before the Arbitrator is whether the County violated the parties' Agreement
by making the Grievant's reclassification effective at a date later than the first pay period
following the County's action on the reclassification request. On that point, it is noted that
the Grievant's reclassification request was not unqualifiedly approved on either October 7,
1997 (the date of the Personnel Committee's action) or on October 21, 1997 (the date of the
County Board's action). Rather, Resolution No. 41-97 indicates that the County Board's
approval of the Grievant's reclassification to Fiscal Clerk was conditional upon her
completing cross-training by July 1, 1998. In other words, there is no final approval until
condition is satisfied.
Therefore, subsumed within the stipulated issue is the question of whether the County
may, under the Agreement, make approval of a reclassification conditional and effective
the completion of such condition by some future date. The answer to that question is in the
affirmative, provided the condition, i.e., in this case the additional training, is reasonably
related to the work to be performed, is placed in good faith and the employe is given a
reasonable opportunity to meet the condition.
The Union relies almost exclusively upon the wording of the last paragraph of Article
12 Reclassification, to support its contention that the reclassification had to be made
effective the first pay period following the County's action on the Grievant's reclassification
request. That argument, however, ignores the conditional aspect of the County's approval.
There is nothing in the wording of Article 12 that precludes making approval conditional
meeting further requirements by a certain date. The wording upon which the Union relies
simply makes clear when the reclassification is to take effect once approval has been granted.
Further, the last paragraph of Article 12 cannot be read in isolation. It is a principle of
contract interpretation that an agreement must be construed as a whole. In this case, the
County has the authority under Article 2 Management Rights, Section 2.01, J, of the
Agreement, ". . .to determine the size
and composition of the work force, and to determine the work to be performed by
. ." Mulder testified that he recommended, and the Personnel Committee agreed to
recommend, changing the staff makeup in the Clerk of Courts Office from two Clerical
Assistants and two Fiscal Clerks, to four Fiscal Clerks, provided they would be
interchangeable in their positions. Under the language of Section 2.01, J, the County had the
right to decide the type of work the Fiscal Clerk positions in the Clerk of Courts Office
perform, and the right to decide it would reclassify the Grievant's position to Fiscal Clerk
upon her successfully completing cross-training with the other Fiscal Clerks by July 1, 1998.
As stated previously, while conditions may be placed upon the approval of a
reclassification request, those conditions must be bona
fide and the employe must be given
a reasonable opportunity to meet them. The conditions may not simply be a sham to prevent
or delay the reclassification. The record does not establish that the County placed the
condition of her receiving cross-training on the approval of the Grievant's reclassification for
anything other than bona fide reasons. Although
Mulder's less than prompt response to the
Grievant's inquiries about the cross-training she was to receive is troublesome, at time of
hearing (February 18, 1998), there were still four and one-half months remaining before the
cross-training was to be completed and the Arbitrator will not speculate in that regard.
It is therefore concluded that the County did not violate the parties' Agreement by
making approval of the Grievant's reclassification effective upon her completing
cross-training by July 1, 1998.
Based upon the foregoing, the evidence, and the arguments of the parties, the
undersigned makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 28th day of September, 1998.
David E. Shaw, Arbitrator