BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CHIPPEWA VALLEY TECHNICAL COLLEGE
TEACHERS' UNION, WEAC, NEA
CHIPPEWA VALLEY TECHNICAL COLLEGE
(L. Lapp Grievance)
Ms. Leigh Barker, WTCS Consultant, Wisconsin Education
Association Council, 33 Nob Hill Drive,
P.O. Box 8003, Madison, Wisconsin 53708-8003, for Chippewa Valley Technical College
Union, WEAC, NEA, referred to below as the Union.
Weld, Riley, Prenn & Ricci, S.C., by
Attorney Stevens L. Riley, 4330 Golf Terrace, Suite 205, P.O.
Box 1030, Eau Claire, Wisconsin 54702-1030, for Chippewa Valley Technical College
Board, referred to below as the Board or as the Employer.
The Union and the Board are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint an Arbitrator to resolve a dispute filed on behalf of Larry Lapp, who is referred to
the Grievant. The Commission appointed Richard B. McLaughlin, a member of its staff.
on the matter was held on October 22, 1998, in Eau Claire, Wisconsin. A transcript of the
was filed with the Commission on December 1, 1998, and the parties filed briefs and a reply
a waiver of a reply brief by March 4, 1999.
The parties stipulated the following issues for decision:
Did the Employer violate the collective bargaining agreement
when it did not allow the
Grievant to transfer into the Wood Technics opening in the Fall of 1997 but chose instead to
If so, what remedy is appropriate?
ARTICLE II MANAGEMENT RIGHTS
The Board shall have the right to direct all teachers in the
performance of necessary work
functions. This power shall not be exercised in a manner which will defeat the specific
basic purposes of this agreement. The powers or authority which the Board has not officially
abridged, delegated, or modified by this agreement are retained by the Board. . . .
ARTICLE V WORKING CONDITIONS
. . .
Section B Transfer Procedure
1. A list of anticipated vacancies for the coming
school year shall be posted in each school and
on file in the Board office, and a copy shall be sent to a designee of the Union.
2. If vacancies occur at any
time other than during the 34 weeks of the regular school year, the
Board shall mail a copy of the list of vacancies to each member of the bargaining unit.
3. Whenever a new school is
opened, the number of vacancies at each level or in each
classification shall be posted in like manner.
4. Requests for transfer shall
be submitted in writing to the College President.
5. Transfer requests should
show preference of school, department, and subject.
6. Such requests shall be
granted on the basis of seniority, all other factors being equal;
provided, however, that transfer requests may be denied if the granting thereof would
materially affect the implementation of the Hours and Loads Committee standards.
7. If a teacher does not receive the position
requested, he/she shall be notified of the reasons.
8. A list of all transfer requests
which have been approved shall be on file in the Board office,
and a copy shall be sent to a designee of the Union.
Section C Promotion Procedure
Employee promotions shall be accomplished by the following
specific steps herein agreed to:
1. Administration shall post forthcoming promotions
and other vacancies, including the required
qualifications, and forward a copy of said posting to the Union designated representative
when the vacancy occurs. If vacancies occur at any time other than during the 34 weeks of
the regular school year, the Board shall mail a copy of the list of vacancies, including the
required qualifications, to each member of the bargaining unit.
2. Qaulified employees may
apply in writing for the promotion or other vacancies.
3. Employees with senior time
in service shall be given preference, all other factors being equal.
4. All applicants within the
bargaining unit shall be interviewed and their qualifications reviewed,
but the administration shall be free to interview applicants outside the system. All other
factors being equal, first preference shall be given to presently employed personnel.
5. Upon selection of an
applicant for promotion, the name of the person selected shall be posted
on the employees' bulletin board, and on file in the Board office, and a copy shall be sent to
a designee of the Union. If an unsuccessful member of the bargaining unit wishes, he/she
contact the College President for an appointment to discuss the selection; and where said
member of the bargaining unit failed to qualify for selection, the College President shall give
said employee information which could help him/her grow in professional competence so that
he/she may be eligible for selection at a future time.
. . .
CHIPPEWA VALLEY TECHNICAL COLLEGE
MEMO OF UNDERSTANDING ON SCHEDULING ISSUES
November 5, 1996
There is no language in the contract or side
agreements that supports the statement that
Chippewa Falls, Menomonie or any other location are campus site assignments. The
has the right and responsibility to post assignments in the most cost effective manner. These
assignments should be made available to all instructors, in the instructional area, by seniority
qualification, without regard to prior assignment location. This should be made available to
qualified instructors in an instructional area each semester and summer session.
. . .
The grievance form states the Grievant's "concern" which prompted the grievance
"Requested assignment of wood Technics instructor in River Falls according to 11-5-96
(sic) Understanding on Scheduling and was refused." Brenda Finn, the Board's Vice
Academic, responded to the grievance in a letter dated December 15, 1997, to Susan
then incumbent Union President. That letter states:
. . .
It is the college's position that (the Grievant) did not have rights
to the position since he was not
hired into the instructional area into which he requested to move. In a letter of employment
June 15, 1988, (the Grievant) was extended a contract as an "apprentice carpentry
was not hired into the position of wood technics instructor.
The wood technics and apprentice carpentry programs are
separate and distinct. As instructional
areas they function under separate budgets. In dealing with distinct populations, each has
entrance requirements and/or screening procedures for students. The advisory boards for
technics and apprentice carpentry are also separate and distinct. Certification requirements
two programs are not interchangeable.
. . .
Johnston responded in a letter to Finn dated January 16, 1998, which states:
. . .
The school's treatment of appenticeship instructors and programs
is inconsistent. In Machine
Tool, the apprenticeship program and the credit program are considered one entity and
can choose load from either area.
The requirements for apprenticeship instructors in carpentry are
more stringent than those for
faculty in Wood Technics so qualification isn't an issue. Furthermore, even if these are
two different areas of instruction, (the Grievant) should have been able to obtain the River
assignment based on the transfer language. Article V, Section B, Number 6 states that "such
shall be granted on the basis of seniority, all other factors being equal." Since (the Grievant)
only instructor to request that work, he should have been given that assignment. . . .
This exchange sets the themes developed at the arbitration hearing.
The Wood Technics Position in River Falls
In April of 1997, the Board successfully passed a referendum, which included a new
in River Falls. The area is expanding, and the Board determined that local demand for its
Technics program warranted a full-time position. The position had the added benefit that it
offered as a site-based course during the construction of the new Board campus. Lab work
accommodated through the sharing of local high school lab facilities. The Board's course
codes Wood Technics as 31-410-2, and summarizes its content thus:
The Wood Technics program is designed
for those who wish to pursue a career in building
construction or related fields. This hands-on program primarily emphasizes residential
Specific areas of instruction include:
Materials and fasteners
Floor & wall framing
Windows and doors
Insulation & moisture control
As a class project, students build a complete 1600-2000 square
foot energy efficient home on a
residential building lot. Every aspect of residential carpentry is covered during work on this
. . .
Prior to the opening of the River Falls campus, the Board had
successfully offered Wood Technics
at its Eau Claire campus. The instructor of that course at all times relevant here was Joe
all times relevant here, the Grievant served the Board as a Carpentry Apprentice Instructor.
Board did not offer a carpentry apprenticeship program at River Falls because it did not
contractor demand necessary to support such an offering.
After determining to offer Wood Technics at River Falls, the Board started the
process. As a part of that process, the Board prepared a "Notice of Position Opening,"
. . .
1. Provide instruction in the
Wood Technics (residential building construction) program.
Instruction includes construction and machine safety; all aspects of residential construction;
estimating, drafting, and blueprint reading; and construction planning.
2. Assist with curriculum
development, revisions, and implementation as required; assist with
the development of future home plans.
3. Assist with and coordinate
the general contractor requirements on a residential construction
4. Maintain equipment in the
5. Participate in team meetings
and on advisory committees. Activities include budget
development, the scheduling of classes, management of the lab, and involvement in
1. Bachelor's degree or
equivalent with education or training in the residential construction area.
2. Minimum of two years'
recent nonteaching occupational experience in the residentail
3. Meet certification
requirements of the Wisconsin Technical College System Board (Nos. 1
and 2 above).
4. Postsecondary teaching
5. Recent experience in job
expediting/coordinating of residential construction preferred.
6. Experience in architectural
drafting and residential estimating preferred.
. . .
The posting noted the position was to start August 4, 1997. The Grievant learned of
the position and
asked Bob Birchler, the Board's Dean of Instruction, if he could be placed in the position.
advised the Grievant to file a job application. In late May of 1997, the Grievant filed an
for the position.
The Board's Selection of a Wood Technics Instructor for River
As the Board worked through the budget process, Birchler informed Jim Brown, the
Vice-President of Operations, that the Grievant had asked to transfer into the position.
discussed the issue with William Ihlenfeldt, the Board's President. Brown and Ihlenfeldt
that the Grievant did not have automatic transfer rights to the position. Brown stated their
on this point thus:
(W)e determined that Wood Technics and the Carpentry
Apprenticeship were two distinct
programs. They were separate and distinct because they were hired in as separate positions.
. . . They
were hired into separate hiring committees; and historically . . . we have had separate
There was one brief period in time during reorganization when
both of those programs were
under the same supervisor, but that only transpired for a period of less than three years.
over time, there have always been two separate supervisors for apprenticeship and programs
college. There have always been separate advisory committees.
The entrance requirements and the screening of students are
separate. One student applies
directly to the college. The other has to go through the joint apprenticeship committee and
screened. There are separate student requirements, separate lab and classroom components. .
Separate instructor certification to the extent that one had a
requirement of apprenticeship . . .
and one not. And then from the college's standpoint, there are different program
expectations of the person holding the position in that program such as budgets, the
the students, the placement assistance provided to students, the management of the lab
promotion of the program, working with high schools. (Transcript, Tr. at 70-72).
After concluding the positions were part of distinguishable programs, the Board
initiated a hiring
process, which did not grant any transfer rights to the Grievant. Rather, he became one of a
of interested applicants.
Helen Blumer is the Board's Human Resources Manager. She became the facilitator
hiring committee assembled to fill the River Falls Wood Technics position. Roughly fifteen
applied for the position. The members of the committee were Birchler; Cook; Barbara Ries,
instructor; Bruce Rosenau, who serves as a non-Board employe member of the advisory
for Wood Technics; and Janice Braune, an instructor from another discipline. Blumer
committee for its first meeting, which covered Board hiring guidelines and relevant law.
Also at this
meeting, the committee set, by consensus, the criteria to be used to assess each candidate's
qualifications. At this meeting, the committee reviewed the job posting, but took no action
any of the applicants.
After determining the assessment criteria, the committee members individually
application materials submitted by each applicant. Each individual member then determined
of the applicants should be interviewed. The committee then reconvened to determine
summing the individual committee member's conclusions on which applicants should be
yielded a consensus. A consensus did not result until after some discussion. The
consensus determination was that five of the applicants would be interviewed. The Grievant
one of the five. Geri Gamroth, a Human Resources Specialist, issued a letter dated June 19,
to the Grievant to advise him of the committee's determination. That letter states:
Thank you for submitting an application for the "Wood Technics
Instructor" position at
Chippewa Valley Technical College.
The Screening and Selection Committee has completed its
deliberations and at this time regrets
to inform you that you are no longer being considered for the position.
Your interest in securing employment at Chippewa Valley
Technical College is appreciated.
In a memo to Brown dated August 5, 1998, Blumer summarized the deliberations of
. . . (O)nly one committee member ranked (the Grievant) as one
of their top five candidates, and
based on consensus, his name was removed from the list of individuals to be interviewed.
removing (his) name from the list, the committee extensively discussed whether they should
(him) with a courtesy interview. The consensus of the group was that since he had ranked
of the seven possible interviewees, that it would be inappropriate to grant him an interview. .
Blumer stated that her instructions to the committee "were to consider all of the
for their qualifications." (Tr. at 100).
The Grievant was hired as a Carpentry Apprenticeship Instructor in 1988. He is a
carpenter, and received a B.S. degree from UW Stout in 1979. His major was Vocational
and he served as a student teacher in the Board's Wood Technics course in Eau Claire.
employed by the Board, he has worked summers in residential and in commercial
is certified in Instructional Area 410 by the System Board of the Wisconsin Technical and
Education System. Instructional Area Code 410 is Carpentry and is broad enough to certify
teach either Wood Technics or Carpentry Apprenticeship.
Apprentices in the Carpentry Apprenticeship program must fulfill four hundred hours
course work over a four year period. The Carpentry Apprenticeship program covers all the
areas listed in the course catalog summary of the Wood Technics course and covers
such as concrete construction, fire resistant construction, and metal studs. Apprentices are
to get more theory and more in-depth instruction from the Carpentry Apprenticeship program
are students in Wood Technics. The two programs share at least one textbook. Lab work in
Technics focuses on fixed tools such as table saws, planers and jointers. Lab work in the
Apprenticeship program is intended to function as a hands-on complement to the ongoing
process. Apprentices may bring their own tools, and Board supplied tools are kept in a
the Apprenticeship program. The Grievant has used the Wood Technics lab facility in Eau
his program, but does not routinely do so. Wood Technics puts its students onto a job site
construction of a residence. Carpentry apprentices are expected to get on the job experience
sites of their sponsoring contractors. The Grievant's position requires him to travel,
campus facilities in Wisconsin Rapids and Superior. He had hoped to transfer to the River
position to permit him more time at home with family.
Evidence on Bargaining History and Past Practice
The parties negotiated their first labor agreement in 1968. That agreement included a
promotion procedure, but no transfer procedure. In 1969, the parties added a transfer
What appears in the current labor agreement as Article V, Section C, 4, has not been
changed from the parties' initial creation of the procedure. What appears as the first clause
V, Section B, 6 of the current labor agreement has not been changed from the parties' initial
of the procedure.
Effective January 1, 1994, the parties agreed to a document entitled "Guidelines for
Instructors to Achieve Bargaining Unit Status." Item 1, k of that document states:
For layoff purposes, seniority for bargaining
unit employees will include the instructional area
(credit and noncredit), provided the incumbent is certified and meets any specific
requirements of the
Non-credit offerings are continuing education courses, not tied to apprenticeship or
Bargaining unit members can teach in more than one Board program within their
Area. At one point, for example, a teacher with an Instructional Area 101 Accounting
taught both the Board's Associate Degree Accounting program and the Account Clerk
Board, however, terminated the Account Clerk program. Beyond this, the Board offers three
programs within the Secretarial Science Instructional Area.
The Board has also utilized instructors to teach both diploma and apprenticeship
Steve Gregerson has an Instructional Area 420 Machine Shop certification. For the 1997-98
year he taught both in the Machine Tool Apprenticeship Program and in the Machine Tool
Program. His certification to continue to do so, however, is in some doubt. For the
year Lynn Hazen and Sonja Lovely shared instructional duties, in the Barber/Cosmetology
Apprenticeship Program. Both Hazen and Lovely also teach Board diploma programs in
Area 502 Barber/Cosmetology. None of these teachers was hired to be an apprenticeship
In each case, however, their assumption of apprenticeship programs was only part of their
load. Ihlenfeldt testified that the Board was willing to do this with part-time apprenticeship
to determine how well the full-time teachers handled the apprenticeship programs. If and
Board determined a diploma or apprenticeship program warranted a full-time position, he
the Board would post the position to all interested applicants to use its hiring process to
the most qualified. The different expectations and commitment to a full-time position
his view, such a posting. This precluded, in his view, offering the full-time Wood Technics
to the Grievant, who had been hired to be a full-time apprenticeship instructor.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Union's Initial Brief
After a review of the evidence, the Union contends that the labor agreement contains
provisions that address the issue of instructor movement to a different location or position:
Transfer Procedure, the Promotion Procedure and the Memo of Understanding Regarding
Issues." The three provisions are distinguishable, and address different circumstances.
grievance questions instructor movement within an Instructional Area, the transfer provision
Noting that the Grievant is certified in Instructional Area 410, and that this includes
Carpentry Apprenticeship Program and Wood Technics, the Union concludes that the
request to teach Wood Technics clearly constitutes a transfer request. Beyond this, the
contends that an examination of his personal experience and educational background
he met all of the posted qualifications, required and preferred, for the Wood Technics
An examination of relevant bargaining history establishes that the parties created two
distinguishable procedures to govern promotions and transfers. More specifically, the parties
included a promotion procedure in their 1968 labor agreement, while the transfer procedure
established until 1969. That the language of the two procedures is not identical establishes
difference between these two provisions must be taken into consideration." That the transfer
procedure does not expressly mention the interview of outside applicants must, then, be
significant. The Association adds that this conclusion is underscored by the stipulated issue
what evidence there is of past practice.
The Board's responses to the grievance establish, according to the Association, that it
attempting to restrict and narrow the definition of an instructional area." Its initial response
it viewed Wood Technics and Carpentry Apprenticeship as separate Instructional Areas. At
hearing, its position seemed to be that the two positions are one Instructional Area, but
programs within that area. The Union contends that the parties' practice is to define an
Area as an area of certification rather than individual programs within an area of
Board catalog and two negotiated settlement agreements underscore this conclusion. Beyond
the Union argues that the Board has consistently permitted "other bargaining unit faculty to
more than one program within their Instructional Area, including teaching in the
programs." That Wood Technics and Carpentry Apprenticeship are full-time positions
basis to distinguish the Grievant's circumstances from that of other teachers. Nor will the
support the Board's attempt to distinguish between differing programs within a single
Area. The provisions of Appendix F; Article V, Section B; Article V, Section C; and the
to Achieve Bargaining Unit Status" each undercut the Board's position.
Even if the Board's view of the contract is accepted, it is apparent it "gave absolutely
contractual consideration to the grievant . . . for the River Falls Wood Technics position."
Board's failure to interview the Grievant has no contractual basis, and manifests that it "had
intention of abiding by the parties' agreement in this instance."
The Union concludes by requesting that "the arbitrator sustain the instant grievance,
(the Grievant's) transfer to the Wood Technics position on the River Falls Campus."
The Board's Initial Brief
After a review of the evidence, the Board contends that the issue posed by the
"the continuing 'most senior qualified' vs. 'most qualified senior' issue over which
unions have been arguing since the passage of the Wagner Act some 60-odd years ago." The
contends that under this agreement, Subsection 6 of Article V, Section B is the "small,
bearing on which the issue presented to the Arbitrator in this case turns." More specifically,
reference to "all other factors being equal" presumes that the Board determine qualifications
determine when a position must be posted.
Acknowledging that it has filled positions in major layoffs and in Instructional Areas,
Secretarial Science, "where certification requirements and job qualifications are similar," the
asserts that here, all other factors were not equal. More specifically, "two very distinct and
programs are involved." The River Falls Wood Technics program was a new, full-time
its creation. Testimony establishes that Wood Technics and Carpentry Apprenticeship are
distinguishable programs, and that the Board has a practice of posting new, full-time
Beyond this, Board practice "over the years has been that transfers without a general posting
appropriate within the same 'program.'"
The Board contends that its "assignment of apprenticeship courses in Machine Tools
Barber/Cosmetology to instructors in the diploma program of each is distinguishable from the
situation." In each case, assignment of "part time apprenticeship courses to presently
time diploma instructors is merely a reflection of the fact that there is a ready-made,
available for part time hours which is distinguishable from what the Employer would draw
fill a full-time vacancy." The parties' agreement makes the commitment to a full-time
serious than that to a part-time instructor. It follows from this that the need to weigh
regarding a full-time position is more pressing than that for part-time positions. Thus, the
regarding the Machine Tool and Barber/Cosmetology instructors is of no benefit in resolving
Nor is the parties' November 5, 1996 Memo of Understanding particularly helpful.
related Union attempts to define an Instructional Area as an Area of Certification, cannot
being qualified for a position means more than being certified for it; that qualifications can
area to area; or that "in some areas of certification, different requirements exist from
program with the same Wisconsin VTAE Board Certification number."
The Board concludes that the Union is seeking to obtain in arbitration "the right to
'most senior qualified' principle to all transfer requests." The difficulty with this request is
Union has yet to acquire this right in negotiations. Because "there can be no doubt that (the
Grievant) was treated fairly" under the Board's hiring process, there is no support for the
position. The Board concludes by requesting "that the grievance be dismissed."
The Union's Reply Brief
The Union "strongly disputes" the Board's assertion that the reference "all other
equal" has the meaning the Board grants it. A more reasoned view of the reference is "to
Employer to grant a transfer to a less senior employee over a more senior employee in cases
the less senior employee has superior qualifications, skills, abilities or experience." To
Board's view expands "the pool of applicants" beyond "internal employees" and this
the Transfer procedure.
The Union acknowledges that the Board has a practice of posting new, full-time
but disputes the Board's view of the significance of Union acceptance of those postings.
postings did not pose an interested unit applicant attempting to move to a position within
Instructional Area. Thus, the absence of challenge to such postings indicates no more than
Union's agreement that they fall under the Promotion procedure, not the Transfer procedure.
The Union then disputes the Board's attempt to assert that the Union's view of the
permits an unqualified applicant to move into a position in spite of their lack of qualification.
Union contends that its view of the contract acknowledges that "(w)here a program has
standards or requirements imposed by an outside credentialing body, the employee must meet
additional requirements." In this case, however, the Grievant exceeds the qualifications
a Wood Technics teacher. Beyond this, the Association challenges the Board's view of work
assignments in the Machine Tool and Barber/Cosmetology Programs. In each case, "the
apprenticeship hours are one portion of each full-time instructor's regular full-time work
assertion that the assignment of apprenticeship hours in each Program involves "just
for which "a lower standard is somehow warranted" is "incorrect and misleading." Just as
apprenticeship and vocational instruction is combined in those programs, it should be in this
It is not necessary to conclude that the Union bargained a "most senior qualified"
provision to sustain the grievance. Rather, the Union seeks no more than to secure the
benefit of the
language it has bargained in Article V. Since the Grievant was the sole unit applicant and
meets the qualifications for the Wood Technics position, he must be granted the transfer
further prerequisites are implied. Such an implication, however, denies the Union the benefit
negotiated Transfer procedure. The grievance must, the Union concludes, be sustained.
The Board's Reply Brief
The Board chose not to file a reply brief.
The stipulated issue broadly questions the existence of a contract violation. The
the issue is significant, since the most striking aspect of the grievance is the need to give it a
More specifically, the difficulty in establishing the contractual focus is the absence of
contractual support for the Board's action. This is not to say the Board does not pose a
interpretive issue regarding Article V, Section B, 6. Rather, it underscores that even if the
interpretation of that section is accepted, it can only account for the Board's denial of the
transfer request. It fails to establish where in the labor agreement the Board bases its
process. Article II, although not cited, could apply if the Board's action reflects a "retained"
By its terms, however, Article II can apply only if Article V does not.
By its terms, Article V governs the filling of the River Falls Wood Technics position.
Section B and Section C require posting of vacant positions. Even assuming Section B,
governs transfers, does not apply here, there is no persuasive basis to conclude that Section
C is also
inapplicable. It is headed "Promotion Procedure" and the Grievant's move to River Falls is
not a promotion. Subsection 1, however, gives Section C expansive coverage, by extending
"promotions and other vacancies" (emphasis supplied). Even if the River
Falls opening was not a
promotion, there is no persuasive evidence or argument that it constitutes something other
vacancy. In sum, Article V governs the grievance, thus making the "retained" rights of
The applicability of Article V, however, dooms finding a contractual basis for the
actions. Section C, 4 mandates not just a review of a unit applicant's qualifications, but an
Blumer testified that the committee considered extending the Grievant a "courtesy" interview.
underscores the committee's commitment to its consensual procedures, but also underscores
committee paid no regard to the provisions of Article V. Section C, 4 may extend a
courtesy, but that
courtesy is mandated: "All applicants within the bargaining unit shall be interviewed." Nor
C, 4 a matter of courtesy only: "All other factors being equal, first preference shall be given
presently employed personnel." All other factors may or may not have been equal, but the
does not afford any basis to conclude the committee ever weighed the Grievant's unit status
factor worth consideration. This is not reconcilable to the terms of Article V, Section C.
This establishes, however, only the difficulty with establishing a contractual focus
incorporating both parties' positions. That the contractual basis for the Board's acts is not
does not establish a contractual violation. The issue remains what part, if any, of the
Board's conduct violated. To address this issue requires an examination of the parties'
the applicability of Article V, Section B.
Although the stipulated issue implies "to post" is distinguishable from "to transfer",
B and C of Article V, both call for the posting of vacant positions. Section C, unlike
expressly refers to the consideration of "applicants outside the system." The Board, contrary
Union, asserts that Subsection B, 6, permits the consideration of outside applicants if "all
factors" are not equal. As preface to an examination of this point, it must be noted that the
"all other factors being equal" appears in Subection B, 6, and in Subections C, 3 and 4. To
phrase in Article V, Section B, 6, to call in the consideration of outside applicants would
read the express reference to "the administration shall be free to interview applicants outside
system" in Article V, Section C, 4, out of existence. It is not apparent why the bargaining
would make the reference express in Article V, Section C, but not do so when bargaining,
successor agreement, the transfer procedure of Article V, Section B. Beyond this, it must
noted that Board compliance with Article V, Section B, 7 is less than apparent. The June
letter would appear to be a form issued to all rejected applicants since its final paragraph
acknowledge that the Grievant is a Board employe. In any event, the letter falls short of
a notification "of the reasons" the Grievant did not receive the position.
These prefatory points form a troublesome background to the evaluation of the
position. Ignoring them, the strength of the Board's position is that Instructional Area and
certification are not synonymous, which necessitates a review of qualifications to assure that
certification can be meaningfully brought into an individual position. This contention
where the Board offers separate programs, even in the same general Instructional Area, the
between general certification and specific qualification is arguably best assessed by
hiring processes. The commitment underlying the filling of a full-time position underscores
importance of this process. The Board contends that Article V, Section B, 6, as highlighted
consistent practice, brings its hiring process into play in this grievance since Wood Technics
Carpentry Apprenticeship are separate programs.
Both parties' arguments assume that if the two programs are not separate, the
exercise transfer rights. The Union's view of the relationship between a Board program and
Board designated Instructional Area is different than the Board's. This poses a potentially
and vexing issue. This general issue, however, need not be addressed to resolve the
both parties' view of the general issue assumes that the absence of significant difference
programs within an Instructional Area can support a transfer. The narrowest, and thus the
appropriate means to address their arguments is to determine if, as the Board asserts, the
Technics and Carpentry Apprenticeship programs can be considered sufficiently distinct to
Grievant's rights under Article V, Section B. He was the sole unit applicant, and his
to perform the work are not in dispute except as compared to outside qualified applicants.
entitlement to the position is given if the Wood Technics and Carpentry Apprenticeship
cannot be sufficiently distinguished to establish that "all other factors (are not) equal" under
V, Section B, 6 as applied to his transfer request.
The means to make this determination can be gleaned from the testimony and the
arguments. The determination must be made on a case-by-case basis, focusing on whether
competencies constituting the learning objectives of the programs require distinguishable
qualifications. To exemplify this, the parties agree that district programs within the
Science Instructional Area can be taught by instructors possessing certification in
106 Secretarial Science. Ihlenfeldt, in his testimony, contrasted this to Board programs in
Medical Sonography and Radiography. Each program falls within Instructional Area 526,
There is a different occupational experience that's required for
both of those. We would not hire
a person with medical sonography background to do radiography work, and vice versa. (Tr.
Thus, the issue is whether the relationship between Wood Technics and Carpentry
is better analogized to the programs within Secretarial Science or to the programs within
Medical Sonography and Radiography.
Because the Board's asserted differences between the Wood Technics and Carpentry
Apprenticeship programs do not withstand scrutiny, those programs cannot be considered
distinct to defeat the Grievant's transfer rights. Brown's testimony sets forth the Board's
and structures the following discussion.
That the Board uses separate hiring committees and separate supervisors for the
is evidence of difference, but considerably less than dispositive proof. The Board determines
hiring process and supervision for its teachers. If these factors alone determined whether
are separate, the Board could unilaterally read Article V, Section B out of existence. That
programs, for a few years, shared supervision further undercuts the significance of these
standing alone. Ultimately, each factor prefaces rather than establishes a conclusion. What
is it about
the two programs that warrants separate supervision and hiring? What, if any, bearing does
on the qualifications demanded of instructors in each program?
That the programs utilize separate advisory boards can evidence difference between
Johnston testified, however, that Instructional Areas may or may not be split into separate
boards and budgets. This makes it difficult to conclude that these factors, standing alone,
anything beyond administrative convenience. The Barber/Cosmetology Instructional Area
under two budgets and has been merged into one. Instructors within the Instructional Area
both diploma and apprenticeship programs. The Board did not assert that the budget or
committee structure bore on the merging of programs in this or in the Machine Tool
Rather, it highlighted that the instructors were part-time, and could be "tested" on a part-time
to obviate the need for a separate posting. Against this background, it is difficult to give
weight to the presence of separate advisory boards for Wood Technics
and Carpentry Apprenticeship. That carpentry apprenticeship programs are
contractor-driven in a
state regulated trade may dictate the need for a separate advisory board. This would not
make residential carpentry skills less necessary to an instructor of Wood Technics than to an
instructor of Carpentry Apprenticeship.
That entrance requirements are separate for Wood Technics and for Carpentry
warrants consideration, since students in the former program are presumably less
those in the latter. However, it is undisputed that the Grievant teaches apprentices with
degrees of experience, including some without experience. Further, it is undisputed that the
must teach apprentices at varying levels of experience within the program. It cannot, then,
concluded that the Grievant's position has removed him from dealing with inexperienced
with a range of experience among students.
The distinction between the courses involving lab work has no apparent significance
distinguishing the programs. Apprentices use less fixed equipment, yet the end point of the
Technics program is to get the students to a job site to build a house. The parallel to
is apparent. Beyond this, the Grievant does use the Wood Technics lab at times. It can be
the Apprenticeship course involves more theory in classroom instruction than the Wood
course. If, however, this states a significant difference between the programs, then the
of any upper level course within the same discipline could be separated from its lower level
prerequisites. Presumably, laying out a multi-level stairway or a gabled roof requires more
than laying out a horizontal railing or a single level floor. It would not follow from this that
Grievant is not qualified to teach those aspects of his course outline which focus on less
The differences cited by Brown must be contrasted with the evident similarities
programs. As noted above, the Grievant's Apprenticeship program covers every detail noted
course summary to Wood Technics. The Grievant possesses each qualification sought in the
for Wood Technics. The two programs share at least one text book. While Brown
equipment not shared by the programs, it is evident that students in each program use a
of tools. The tools of residential construction are the same for the novice or the
course code for Wood Technics is the 410 Instructional Area in which the Grievant is
Grievant's student teaching experience placed him in Wood Technics.
Ultimately, the Board's attempt to distinguish the programs focuses less on the
content of the
programs than on the Board's perception that a separate hiring process is the best means to
the highest quality applicant in each full-time program. However, the weight this carries as
judgement must be given contractual meaning to be dispositive here. To distinguish
Apprenticeship from Wood Technics on this record effectively reads the transfer rights of
Section B out of existence. The Board's arguments indicate that the unique qualifications
in an Apprenticeship Program might rule out a Wood Technics instructor's
requested transfer. They cannot make apparent how the Grievant's ostensibly greater
than required for Wood Technics can work against him. Doing so would read the term
"all other factors being equal" in Article V, Section B, 6, as "identical." Adopting this
reads the transfer rights of Article V, Section B out of existence. In sum, the Wood
the Carpentry Apprenticeship programs cannot be sufficiently distinguished to defeat the
rights under Article V, Section B.
Before closing, it is appropriate to tie this conclusion more tightly to the parties'
Whether the Union reads Instructional Area too broadly must be left to the case-by-case
above. The relationship between Board offered programs and general System Board
poses an inevitably factual issue. Viewed from this perspective, the fact that instructors in
Tool and Barber/Cosmetology can combine diploma and apprenticeship programs is less
a binding practice than evidence of the need to address each program on its own merit.
The significance of the Board's desire to protect the hiring process for full-time
must be acknowledged. However, that desire cannot defeat the terms of Article V. To deny
rights under Section B, program differences must exist which are traceable to considerations
the Board's desire to use the hiring committee consensus procedure to weigh the
qualifications of all
applicants equally. This does not mean that the consensus-based hiring is flawed or that the
commitment to a full-time position should be minimized. However, the hiring process must
relevant provisions of Article V into account. The consensus of a hiring committee cannot
for compliance with the labor agreement.
The November 5, 1996 Memo on Scheduling Issues is relevant background to the
but unhelpful in resolving it. It does mention "instructional area," but combines "seniority
qualification" as considerations for making positions available without specifying how to
in any particular case. The Mentink settlement agreement, in my opinion, is irrelevant by its
"It is also agreed that this situation is not precedent setting."
As noted above, the stipulated issue can be read to imply that positions open to
should not be posted. Also as noted above, Section B and C each require a posting. The
focuses not on the posting of the vacancy, but on its posting to outside applicants on the
the Grievant could assert no superior right to it.
The parties have not raised any issues regarding remedy, and the Award entered
the Union's request. The Award states no time line for granting the transfer, in the hope
parties can best address how to effect the transfer with a minimum of disruption to the
teachers and students.
The Employer did violate the collective bargaining agreement when it did not allow
Grievant to transfer into the Wood Technics opening in the Fall of 1997 but chose instead to
As the remedy appropriate to the Board's violation of Article V, Section B, it shall
Grievant to transfer to the Wood Technics position on the River Falls campus as soon as is
Dated at Madison, Wisconsin, this 23rd day of March, 1999.
Richard B. McLaughlin, Arbitrator