BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
JACKSON COUNTY HIGHWAY EMPLOYEES LOCAL
WCCME, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 18990 Ibsen Road, Sparta, Wisconsin 54656-3755, appearing on
behalf of the Union.
Mr. James Michael DeGracie, Corporation Counsel/Personnel
Director, Jackson County, 307 Main Street, Black River Falls, Wisconsin 54615, appearing
on behalf of the County.
Jackson County and Jackson County Highway Department Employees Local 2717-C,
WCCME, AFSCME, AFL-CIO are parties to a collective bargaining agreement that was in
all times relevant to this proceeding and which provides for final and binding arbitration of
disputes. The Union, by request to initiate grievance arbitration received by the Commission
March 10, 1995, requested the Commission to appoint either a Commissioner or a member
of its staff
to serve as Arbitrator. The Commission appointed Karen J. Mawhinney as Arbitrator on
1995. The case was subsequently transferred to Thomas L. Yaeger on October 3, 1995.
in this matter was held on April 9 and 10, 1996, in Black River Falls, Wisconsin. The
transcribed and the parties filed post hearing briefs which were received by the Arbitrator on
1998 from the County and on January 15, 1999 from the Union. The record was closed on
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Did the County violate the collective bargaining agreement by
removing the Grievant, George
Lewis, from the Timekeeper/Stock Clerk position and returning him to his previous
position? If so, what is the appropriate remedy?
Was the Grievant qualified for the position of
Clerk? If not, was it a proper
exercise of management rights to remove the Grievant from the Timekeeper/Stock Clerk
during the trial period, when management determined that the Grievant was not qualified to
the duties of the position?
The parties being unable to stipulate to an issue, the Arbitrator frames the issue as
Did the County violate Article 7, Job Posting, of the
bargaining agreement when
it removed Grievant from the Timekeeper/Shop Clerk position and returned him to his
Patrolman position? If so, what is the appropriate remedy?
ARTICLE 1 RECOGNITION
SECTION 1. The Employer hereby recognizes the Union as the
exclusive bargaining agent for
the purpose of conferring and negotiating on questions of wages, hours, conditions of
and the adjustment of employee complaints and employee grievances for all regular full-time
regular part-time employees of the Jackson County Highway Department, excluding
managerial, clerical and confidential employes.
. . .
ARTICLE 2 - MANAGEMENT
SECTION 1. The County
possesses the sole right to operate County government and all
management rights repose in it, but such rights must be exercised consistently with the
this Contract. These rights, which are normally exercised by the Employer, include, but are
limited to, the following:
A. To direct all
operations of County government.
B. To hire, promote, assign and retain
employees in positions with the County and to suspend,
demote, discipline or discharge for just cause.
C. To relieve employees of their duties
of lack of work or for other legitimate reasons.
D. To maintain
efficiency of County government operations entrusted to it.
E. To introduce new or
improved methods or facilities.
F. To change existing
methods or facilities.
G. To contract out for goods and services,
except that such actions shall not result in the lay-off of
employees in the bargaining unit.
H. To determine the methods, means and
personnel by which such operations are to (sic) conducted.
I. To formulate all reasonable rules and
regulations for all operations and management of the
J. To take necessary action to carry out the
functions of the County in situations of emergency.
K. To take necessary action to comply with
State and Federal laws.
The Union and the employees agree that
they will not attempt to abridge these management
rights and the County agrees that it will not use these management rights to interfere with the
established under this agreement. Nothing in this agreement shall be construed as imposing
obligation upon the County of Jackson to consult or negotiate concerning the above areas of
discretion and policies.
. . .
ARTICLE 4 - GRIEVANCE
SECTION 1. A grievance is defined as any
difference or dispute regarding the interpretation,
application or enforcement of the terms of this agreement. The grievance procedure shall not
to change existing wage schedules, hours of work, conditions and fringe benefits. For
this Article, "days" shall be defined as work days excluding Saturdays, Sundays and
. . .
SECTION 4. Steps in
. . .
Step 3. .
. . The decision of the arbitrator shall be limited to the subject matter of the grievance.
The award of the arbitrator shall not modify, add to or delete from the express terms of the
. . .
ARTICLE 7 - JOB POSTING
SECTION 1. When it
becomes necessary to fill vacancies or new positions within the
bargaining unit, the Employer will post such vacancies or new positions for five (5) working
during which time interested employees may apply by signing the posting. Job postings shall
the job to be filled, qualifications for the job and the rate of pay. Posted positions shall be
as promptly as possible following the posting period to a qualified applicant. The qualified
with the most seniority shall be selected to fill the vacancy or new position. This Section
prohibit the Employer from advertising vacancies during the job posting period.
Successful applicants shall be allowed up to twenty (20) working days to
satisfactorily perform the work on an awarded position, however, the Employer may at his
extend the period by up to an additional thirty (30) working days. Employees not able to
satisfactorily perform the work of an awarded position within the period granted shall be
the Employer to the position formerly held. If the successful applicant is not satisfied with
position, he/she may return to the position formerly held within twenty (20) working days.
STATEMENT OF THE CASE
This grievance arbitration involves the Jackson County Highway Department and
County Highway Employees Local 2717-C, representing the employes set forth in Article 1,
Recognition. (Jt. 1) The Union alleges a contractual violation by the County for the failure
County to give the Grievant a fair and reasonable opportunity to qualify for the position of
Timekeeper/Stock Clerk in the County Highway Department. The Grievant, George Lewis,
commenced work for the County Highway Department on July 13, 1971. The Grievant
through various positions and ultimately became a Patrolman under the Classification
Schedule of the
collective bargaining agreement between the parties. At all times pertinent to this grievance
County had a position classified as Timekeeper/Stock
Clerk. Duties of this position include checking, ordering,
receiving inventory and recording all parts,
materials, fuel, oils, answering and relaying telephone radio messages, preparing requests for
machinery classifications for the Wisconsin Department of Transportation and maintaining
and making reports on preventative maintenance, accidents and repair.
Only one employe, Albert Skar, occupied this position. On December 30, 1992,
Hemp, Highway Department Commissioner, posted a notice asking whether any employe
Highway Department might be interested in working in the shop office to learn the
operation in order to have a backup to Skar. (Jt. 3) George R. Lewis, the Grievant, signed
and received the opportunity to learn the position as backup. (Jt. 3) The Grievant worked in
shop with Skar from February 4, 1993 through September of 1994 and spent, if calculated as
time, approximately 7.5 months in the shop office with Skar. (Er. 20)
At a meeting on June 6, 1994, the Jackson County Highway Committee expressed
concern that employe Skar was contemplating retirement and no one within the Department
qualified to do his job. (Jt. 4) Skar, on July 18, 1994, gave Hemp, the Highway
contemplated date of retirement as January 14, 1995, with his actual last day of work as
18, 1994. (Jt. 5) In September of 1994 the position of Timekeeper/ Stock Clerk in the
Department was posted with an application deadline of September 26, 1994. (Jt. 9)
Pursuant to the
collective bargaining agreement the County also ran a newspaper ad for the same position on
September 11, 1994. (Jt. 7) The Grievant was the only member of the collective bargaining
the Highway Department that posted for the position. The job posting required two years of
education in inventory/parts distribution and control and two years on-the-job experience or
equivalent combination of four years of education or experience. (Jt. 9) Commissioner
the Grievant to provide documentation of his training and education and his Army and
Guard experience that Grievant included on his application for the Timekeeper/Stock Clerk
(Jt. 10) On September 26, 1994, the Grievant responded to the Highway Commissioner's
and forwarded documents related to his educational credits and training to the County
Counsel, Michael DeGracie and indicated that his U.S. Army records would be forwarded as
as he received them. (Jt. 18)
Grievant was awarded the job by letter from Commissioner Hemp on October 4,
22) Grievant was informed by Commissioner Hemp that he would have, pursuant to Article
Section 2 of the labor agreement, 20 working days to demonstrate that he could satisfactorily
the work. (Jt. 22) On October 4, 1994, Grievant asked Commissioner Hemp that he be
additional 30 working days to demonstrate his ability for the Stock Clerk position, noting that
employes who had recently bid for three unrelated positions within the Highway Department
received an additional 30-day period. (Jt. 23) Pursuant to the job posting article of the labor
agreement the County at its discretion can give an employe, in a job posting situation, an
30-day qualifying period in addition to the 20 days the employe originally receives when
job. (Jt. 1, Article 7, Section 2) Commissioner
Hemp responded on October 5, 1994 to Grievant's request: "A
decision whether or not there is a
need to extend the period by up to an additional 30 working days is premature at this time as
initial period has not even begun. Management will extend the period if, in their opinion, it
necessary for further evaluation." (Jt. 24)
The regular Shop Clerk, Skar, was assigned by Commissioner Hemp to a different
(the Courthouse) on a special project during the trial period of the Grievant as part of the test
if Grievant could do the job. Skar was available by telephone during Grievant's trial period.
and Avis Hoff, account clerk in the Highway Department, were required by the Highway
Commissioner to keep a record of contacts with the Grievant as was Patrol Superintendent
who was Grievant's immediate supervisor. The County documented various errors of the
during his trial period. (Er. 26-31) On November 3, 1994, Commissioner Hemp returned
to his position as Patrolman stating:
In your application you indicated you had the training,
experience, skill and ability to competently
and efficiently perform the duties of the Timekeeper/ Stock Clerk position with minimal
However, a review of the records and the work you have performed in the position since
you to the position on October 4, 1994 indicate that you have not demonstrated that you can
satisfactorily perform the work in the position. (Jt. 14)
Lewis grieved his being returned to his position as a Patrolman after working
17½ days in the
Shop Clerk position. Grievant alleged that he was not given a trainer, i.e. Skar and did not
any supervisory evaluation, assessment or explanation for being terminated from the Stock
position. The grievance was filed with the Highway Commissioner on or about November
(Jt. 32) On November 30, 1994, Commissioner Hemp denied the grievance stating that no
was necessary for Grievant since he had indicated in his application for the position that he
trained for the Timekeeper/Stock Clerk position under Skar since March 3, 1992. Hemp
stated that after 19 working days the Grievant had not demonstrated to management that he
satisfactorily perform the work of the position. Finally, Hemp stated that the 30-day
provided for at the discretion of management in a job-posting situation, was not needed to
decision on Grievant's performance. (Jt. 33)
The parties processed the grievance through the contractual grievance procedure and
unable to resolve the grievance. No issue was raised as to the arbitrability of the grievance.
in this matter was held by the Arbitrator on April 9 and 10, 1996, in the City of Black River
POSITIONS OF THE
The Union's main argument is that Grievant was not treated fairly and was not given
opportunity to succeed at the position of Timekeeper/Stock Clerk. It is the position of the
the County never intended to hire the Grievant because it advertised prior to even posting the
for the Shop Clerk position and there were employes in the Highway Department, other than
Grievant, who could have qualified for the position. The Union points to the fact that in
previous job postings employes had received a 50-day trial period and Grievant was refused
period when he requested it. Further, during the trial period, the man Grievant was to
was removed from the office and, although available by phone, this is not the same as having
present in the office and available to respond to questions and oversee and train the Grievant.
Further, the Grievant was treated differently because he had to produce documentation of his
training and experience which had never been requested of any previous applicants for a
the Highway Department.
The Union argues that the Grievant's alleged poor record while he was in the 20-day
period is over-blown and that an employe within a trial period is likely to make mistakes.
submits that the County did not take into account that during the two-year period that
working part of the time as a back up to Skar he had received an evaluation showing
in learning the Timekeeper/Shop Clerk position. (Jt. 21) In concluding its argument, the
points out that the employe who was hired off the street to take the position after Grievant
returned to his Patrol position received more help from the County during that employe's
than was received by the Grievant.
The Union reiterates its belief that the County never intended to
permanently place a
bargaining unit employe in the Timekeeper/Stock Clerk position and did everything it could
to make it difficult for the Grievant during his trial period. The Union takes the position that
rather than the Grievant failing to demonstrate that he could not satisfactorily perform the
work of the position, the County failed in its responsibilities to the Grievant during the trial
period. The Union requests that the Arbitrator sustain the grievance and order the County
to award the position of Timekeeper/Stock Clerk to the Grievant with a "make whole"
The County's position is that based on arbitral precedent it alone determines ability as
as it has been fair and non-discriminatory. The County vigorously argues that it was the
himself that stated that he had the training and experience to do this position based not only
experience in the Army but on his experience of 2½ years working as a backup to Skar
in the Shop.
(Jt. 18) The County postulates that it is obvious, as evidenced during the trial period, that
over-stated and/or misrepresented his qualifications for the position.
The County points out that the Grievant testified that he would
need at least four months to qualify
for the position so that Grievant could not, by his own admission, have qualified within a 50
day trial period. The County's position is that the trial period called for in the collective
agreement is not a training period; on-the-job training with someone of the Grievant's
would not be appropriate as it would be for someone hired off the street. The County
Grievant stated that he essentially had 2½ years' training under Skar in the shop. The
believed that taking Skar out of the office, but making Skar available on a daily basis, would
be a true
test of whether Grievant could independently do the job.
The County denies that there was any disparate treatment of the Grievant from the
and none was proved by the Union. The County states that it properly advertised and posted
position. Further, Hemp, the Highway Commissioner, could not have wanted to hire a
individual from outside the Department as there were almost 100 applications for the position
the employe selected was approved by the County Highway Committee. As to other
qualified, the Union itself points out that Hemp had not been in the Highway Commissioner
long and could not have known all the employes. Further, only Grievant bid for the job so it
have been impossible for Hemp to know who else might have been qualified or interested
Department to apply for the position.
Lastly, the County takes the position that it gave the Grievant the opportunity to
County argues that there is sufficient documentation to show that Grievant made far too
to have any reasonable success to qualify for the position. The County summarizes by
it followed the collective bargaining agreement and during the trial period, management of
determined that the Grievant was not satisfactorily performing the responsibilities and that the
treatment of Grievant was fair. Therefore, the County requests that the Arbitrator deny the
The issue before me is whether the County violated the collective bargaining
it removed Lewis from the Timekeeper/Stock Clerk position. Article 7, Job Posting, Section
forth the standard for removal as being "Employees not able to satisfactorily perform the
work of any
awarded position within the period granted shall be returned by the Employer to the position
held." Thus, the question for the undersigned is whether Lewis was able to satisfactorily
Timekeeper/Stock Clerk job duties during the trial. If the Grievant established that he did,
County violated Article 7, Job Posting, Section 2, by returning him to his Patrolman
As discussed above, Grievant was awarded the opportunity to qualify
for the shop
position based on his experience, background and training. (Jt. 18) That application for the
position was in response to a job description that spelled out significant requirements for
training and experience for the duties required of the
position. (Jt. 9) Crucial to this matter
and my decision is the fact that Grievant stated in his application that ". . . Trained for
Timekeeper/Stock Clerk under Albert Skar since March 3, 1992." (Jt. 18, pg.4) Therefore,
Grievant was giving notice that he had been training in the shop for this position for
prior to bidding for the posted position in September of 1994, and being awarded the position
on October 4, 1994. As creditably testified to by Highway Commissioner Hemp, Lewis'
training in the position was the main reason that Hemp fashioned the trial period as he did
the Grievant. Hemp assigned Skar, the retiring Clerk whom Grievant was to replace, to the
Courthouse, a different location than the Highway Department shop, to work on a special
project. Hemp testified that he believed that unlike an employe new to the Department and
shop, Grievant, based on his training and experience, did not need to be trained but rather
tested to see if he could satisfactorily perform the job duties. 1/ Lewis received 37½
of training in the position from Skar over the 2½ year period immediately preceding the
1/ Reynolds Metal Company, 66 LA 1276, 1280 (Volz,
The purpose of a trial period is to determine
whether an employee who possesses the basic qualifications can
satisfactorily do a job which she does not regularly perform. It is assumed that she will not
have to be trained in
all aspects of the job; for a trial period is not a training period, but simply an opportunity to
demonstrate ability to
do the job. A trial period, in effect, is a lengthened familiarization or orientation period in
which the employee is
acquainted with the nature and techniques of the job. It presupposes that the employee will
be given instruction
and assistance and that she will not simply be turned loose to "sink or swim." But, it also
assumes that she brings
with her to the trial period by virtue of prior experience or education considerable
knowledge, background, and skill
for performing the duties of the new position. She still needs instruction in the peculiar
equipment, and techniques of the job; but an intensive on-the-job training program, such as
would be appropriate
for a novice, is not contemplated.
Therefore, Hemp directed Skar to respond to any questions from Grievant and Skar
usually saw Grievant at the start
and end of the work day. In fact, Grievant did ask Skar questions about the job to which
Skar responded. Hemp asked
Skar to keep track of those questions and any mistakes made by Grievant. Hemp made the
same request of Gabriel,
Grievant's immediate supervisor, and Hoff, the Department account clerk. The information
he received from Skar and
Hoff were relied upon by Hemp in making his decision whether Lewis had satisfactorily
performed the duties of the
position during the trial. The undersigned is persuaded that this procedure Hemp adopted for
performance was reasonable and necessary to his making an informed decision.
Patrol Superintendent Gabriel testified some of the errors
made by Skar were so basic and
elemental that a reasonable person could not conclude Lewis was satisfactorily performing.
also testified that he just did not think that Grievant would work out for the position. Skar
reported inaccuracies related to over and under charging for materials. Hemp ultimately
based upon the information he had, that Grievant had not and could not satisfactorily perform
position. (Jt. 14) There is no record evidence to suggest that Hemp's conclusion was
or arbitrary and capricious in the face of the facts concerning Lewis' performance during the
period. The Union is correct in noting that it would not be unusual for someone to make
during a trial period for a new position. However, Lewis' mistakes were elemental and of
one would not anticipate after training in the position off and on over 2½ years.
Further, it was
undisputed that accuracy was a substantial requirement of the position, and an area where
performance was unsatisfactory.
The qualifying or trial period for the job was twenty working days.
(Jt. 1, Article 7)
The parties are in disagreement whether the Grievant worked seventeen or nineteen days in
the job before he was sent back to his patrol position by a letter from Hemp informing
Grievant that he was not qualified for the shop clerk position. (Jt. 14) The grievance in this
matter then followed.
The Union argued that an ad was run in a local newspaper for the job prior to it
internally. Joint Exhibit 9 which was introduced as the job posting is undated. However, the
evidence of when the job was posted is the Pending Position Vacancy Timekeeper/Stock
announcement signed by Hemp on September 7, 1994, found in Exhibit 18. At least one ad
placed in a local newspaper on September 11, 1994. (Jt. 7) This places the running of the
the posting period as allowed by the labor agreement. (Jt. 1, Article 7) Even if the internal
was after the ad, I do not believe, as argued by the Union, that this is indicative that Hemp
to hire from the outside and had someone in mind. Hemp testified that because the vacancy
occurring near the winter season which is a hectic time in the Department, filling the
quickly as possible was important. If no one in the Department was qualified, going outside
be necessary and so getting started, in case there were no qualified internal candidates, was
The record discloses that 100 applicants from the outside applied for the position. The
establishes that the County Highway Committee was directly and substantially involved in the
screening and selection of the applicants to be interviewed. It was not Hemp's decision
Meanwhile, Grievant was awarded the position and given the qualifying period. I do not
evidence establishes that Hemp did not intend on letting Grievant succeed because he had
picked someone that he wanted from the outside. I also note that the first selected applicant
the outside was turned down based on a background check by the County Corporation
The Union also noted that three employes who filled vacancies immediately before
Grievant filled the shop clerk vacancy received 50-day qualifying periods, but Grievant asked
additional thirty days and was turned down. (Jt. 23) Hemp testified that he felt the
Grievant's request for an additional thirty days on his
twenty-day trial period on the same day as he
was awarded the job was premature. (Jt. 24) Further, Hemp stated that time was of the
because Skar was retiring with a contemplated last day of work of November 18, 1994. (Jt.
5) I find
that the three other positions are different jobs than the subject job and there is nothing in the
to indicate that the employes awarded those positions had ever performed in the jobs as had
in the shop. As the labor agreement leaves it to the County's discretion to award an
days on the qualifying period, and due to the different nature of the jobs, I do not find under
circumstances present in this case that Hemp's refusal to grant the Grievant's request for an
before the trial started to be evidence of unfair or discriminatory treatment.
The Union asserted that the County did not believe anyone in the
was qualified for the clerk position based on the minutes of the Highway Committee meeting
where the perceived lack of qualified employes was discussed. (Jt. 4) I do not regard this
conversation in a Highway Department meeting months before the job was posted as being
anything more than conversation. The Union states that Hemp, who had been with the
Department only a short time, could not have known the employes well enough to know
whether there were employes within the Department who might qualify as clerk. On the
hand, when the Grievant did not receive the clerk job permanently, the Union argued that
Hemp should have known there were three other employes in the Department who had the
background necessary for qualifying for the position. Hemp stated that he was unaware of
qualifications of other employes and that he went to the outside when Grievant failed because
no other employe had signed the clerk job posting. Based on the record I do not find the
Highway Committee's discussion or the failure to seek other employes within the Department
for the job as evidence of an intent to ensure Grievant did not succeed in the
The Union also argued that Grievant was treated differently than other employes as
else had ever been required to provide a resume or document their background. The posting
language of Article 7, Section 1 requires the posted vacancy be granted to the most senior
applicant. Requiring evidence of their prior training and experience in order to determine
qualifications is reasonable, prudent and necessary in order to determine which applicants
are, in fact,
qualified. Insisting that Grievant do so in this case, for this position, whether it was required
necessary in prior postings for other positions, was contractually permissible. Furthermore,
no record evidence to suggest a binding practice existed to nullify this contractual right.
Last the Union argued that Farnsworth, the off-the-street candidate, received more
than did the Grievant. The record is less than complete as to the circumstances of the
Farnsworth. Employe Lind testified that he spent one week training Farnsworth.
subject to a year probation period as a new employe under the labor agreement. Farnsworth
to the Department; Grievant had been in the Department 24 years. Grievant had also been
with Skar over a period of 2½ years. Even if over that
period Grievant had been in the office with Skar for the
equivalent of only 7½ months this is certainly
longer than the training of Farnsworth, at least according to the record. Thus, I do not find
evidence of the training of Farnsworth establishes that the County treated Grievant in a
Based upon the foregoing and the record as a whole, I enter the following
The County did not violate Article 7, Job Posting, of the collective bargaining
when it removed Grievant from the Timekeeper/Shop Clerk position and returned him to his
Patrolman position. Therefore, the grievance is denied.
Dated at Madison, Wisconsin, this 17th day of March, 1999.
Thomas L. Yaeger, Arbitrator