BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DOOR COUNTY COURTHOUSE
LOCAL 1658, AFSCME, AFL-CIO
Mr. Gerald D. Ugland, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Grant P. Thomas, Corporation Counsel, appearing on
behalf of the County.
Door County Courthouse Employees, Local 1658, AFSCME, AFL-CIO,
to as the Union, and Door County, hereinafter referred to as the County, are parties to a
bargaining agreement which provides for the final and binding arbitration of disputes arising
thereunder. The parties waived the arbitration panel provided for in the agreement and the
made a request, with the concurrence of the County, that the Wisconsin Employment
Commission designate a member of its staff to act as the sole arbitrator to hear and decide a
over the meaning and application of the terms of the agreement. The undersigned was so
Hearing was held in Sturgeon Bay, Wisconsin, on October 19, 1999. The
hearing was not transcribed
and the parties filed post-hearing briefs and reply briefs, the last of which were exchanged on
January 6, 2000.
On January 26, 1999, the County posted a vacant Clerk Typist I,
part-time position in the
Real Property Listing Office. (Ex. 2) The job description for the posted position provided
"KNOWLEDGE, SKILLS, ABILITIES, AND EXPERIENCE REQUIRED," the following:
2. Ability to read, comprehend and follow simple to moderately
complex legal descriptions on
a map. (Ex. 3)
The grievant, a Clerk Typist I in the County's Planning Department, submitted a
job posting form for
the position. (Ex. 4) The grievant listed her education information and stated the following:
My duties at the Planning Dept. have provided me with some
background in property maps
through copying, filing and typing letters pertaining to various maps and surveys and "other
The grievant also listed her clerical skills, employment experience and personal
County denied the grievant this position by letter dated February 5, 1999, indicating
that she was not
qualified for the position and stated the following:
Specifically, the information you provided did not indicate
you had the ability to read,
comprehend and follow simple to moderately complex legal descriptions on a map. (Ex. 5)
The grievant was the only bargaining unit employe to apply for the position and after
the County filled the position by an outside hire. The grievant grieved her non-selection
processed through the grievance procedure to the instant arbitration.
The parties stipulated to the following:
Did the Employer violate the collective bargaining agreement
not awarding the vacant
Clerk Typist I position in the Real Property Listing Office to Jean Kezo?
If so, what is the appropriate remedy?
. . .
Posting: Definition of a vacancy shall include job openings created either
by an employee
leaving the position or a newly created position.
Notice of vacancies shall be posted within
five (5) working days after the vacancy occurs in each
department for a minimum of three (3) working days. The notice of posting shall include the
following minimum information: wage rate, hours of work, department, position title, job
description, and qualifica-tions. Any employee desiring to fill any such posted vacancy shall
application in writing at the Human Resources Office. After the conclusion of the posting
application shall be opened at the Human Resources Office in the presence of a
representative of the
Union and a representative of the Executive and Personnel Committee, or its designee, at a
be mutually agreed upon.
Whenever any vacancy occurs, it shall be
given to the senior qualified employee within seven (7)
work days after the completion of the posting period.
. . .
Period: An employee, upon being promoted or transferred to another
shall serve a trial period of ten (10) work days in the new classification. An employee who
do the work of the new classification, within the ten (10) work day trial period, shall be
his or her former position. The Employer may step the employee back to his or her former
at any time during the trial period provided that such action is not arbitrary, capricious, or
unreasonable. The employee may return to his or her former position if he or she so elects
initial ten (10) work days of the trial period upon written notice to his or her Department
As provided herein, the employee shall be
entitled to the pay rate for the position he or she is
promoted or transferred to, effective the date the employee performs the functions of the new
position, unless the employee is stepped back or returns to his or her former position. The
work day trial period may be waived by mutual written agreement between the parties.
service beyond the ten (10) work day trial period shall be deemed evidence of satisfactory
of the trial period.
The Union contends that the grievant was qualified for the vacant position. It refers
testimony that in the Planning Department she has been filing surveys for the Real Property
Department and other filing by legal description and tax parcel number and finds zoning on
using the plat book, plat maps and zoning maps using section, town and range as well as
section and quarter-quarter section descriptions. It points out that no one asked her if she
legal descriptions on a map, no one interviewed her, she was not given a test and although
inquired where she could learn legal description reading, NWTC provided no such course.
It insists that the grievant believed her application was sufficient information for the
no one asked for a resume or further information and she was not told she had been rejected
of not filing additional information. The Union refers to the testimony of David Sautebin, a
Administrator for the County for over 20 years, who uses legal descriptions in his work and
surveys by Tax Parcel Number. It observes that Sautebin orients others on how to use legal
descriptions which takes one to two days of 20 minutes to an hour and the employe knows
are doing in two or three days relating to maps and finding parcels of land. According to the
Sautebin stated that if an employe knows section, town and range, the learning time is
other legal descriptions. Sautebin, the Union submits, is familiar with the grievant's duties
uses Tax Parcel Numbers including section, town and range and that her filing is the most up
accurate and timely in his 25 years with the County. The Union notes that Sautebin
employes on "metes and bounds" legal descriptions and it is not difficult to learn this in a
days and legal descriptions are usually learned on the job.
The Union argues that the successful applicant's application and resume gave no
she had the ability to read, comprehend and follow simple to moderately complex legal
on a map. It submits that she was given a test and an interview. It points out that while this
is no longer in the position, she held it for four months and found most of the information
on the computer.
The Union observes that the Personnel Director testified that the process for hiring
outside is different from the inside. It refers to the Department Head, Holly Hansen, who
based on the grievant's application, that she was not qualified but admitted that previous
learned to use legal descriptions in other departments.
The Union argues that the grievant was not given the same opportunity to
qualifications as an outside applicant. It observes that the County gives a current employe
to qualify through application, whereas an outside applicant is allowed to test, interview and
a trial period. It contends that the grievant should have been given a trial period because she
is in the
same class as the vacancy and routinely worked with legal
descriptions. It alleges that the County was arbitrary and capricious in denying the
position. It insists that the grievant should be given the position plus back pay for the
between her sixteen (16) hours per week and the thirty-two (32) hours per week for the
It argues that the County avoided hiring an internal applicant because it would take a
from one department and require orienting him/her for another. It asserts that as a result,
hired an unqualified applicant who did not work out. It concludes that the grievant should be
the job and made whole.
The County contends that where the collective bargaining agreement is clear and
unambiguous, the intent of the parties is to be found in the language of the contract and it
Article 6, paragraph D. is not susceptible to more than one reasonable interpretation. It
a vacancy must be awarded to the senior qualified employe, but seniority is not the sole basis
selection and being qualified is equally important. It points out that the terms "senior" and
are not defined and must be given their common and ordinarily understood meaning and it
dictionary definitions to establish their meaning.
The County alleges that the job description lists the necessary requirements and
for the position. It observes that the grievant submitted a Job Posting Form but elected not
any supplemental attachments. It insists that it was the grievant's duty to establish that she
"senior qualified employee." It submits the County's determination as to whether she was
qualified employee" was based solely on the Job Posting Form and the County, exercising
reasonable decision making, concluded the grievant did not possess the qualifications nor met
requirements for the position. The County asserts that the Arbitrator should only consider
Posting Form as that is what the grievant submitted and that is what the County considered,
extraneous evidence should not be used. It believes that the evidence with respect to the
hiring process is outside the collective bargaining agreement and job posting under the
what the parties bargained for, nothing more or less, so the outside hiring process is not
relevant to any issue in this case and should be ignored.
The County relies on a prior decision between the parties, Door County, Case 103,
54678, MA-9753 (Jones, 10/97), which involved similar facts and the Arbitrator concluded
standards to be used in determining qualifications are left to the County and its decision will
overturned unless it is unreasonable, arbitrary or capricious and the grievant's qualifications
determined from the same information considered by the County. The County maintains that
decision is on point and supports the position advanced by the County.
The County contends that the grievant was required to mitigate damages and failed to
for the position through the outside hiring process, failed to post for a subsequent vacancy in
same position and failed to apply through the outside hiring process a second time, thus she
mitigate the claimed damages and is not entitled to any recovery. It concludes that the
not meet the burden of proving her case and it asks that the grievance be denied.
The Union contends that the testimony about outside hiring is relevant. It argues that
County does not want to be held responsible for its lack of credibility in determining what
qualifications are required. It claims that if outside applicants are considered under lesser
qualifications, then that lesser standard applies to bargaining unit employes, otherwise the job
procedure means nothing. It submits the end result is that the County prevents movement of
employes and allows a department head or some politician to hire friends and political
The Union asks what is the standard presented here. It cites Elkouri & Elkouri,
Arbitration Works (5th Ed., 1997) for the proposition that the union
can challenge the employer's
initial determination of qualifications. It insists the County has been discriminatory in
outside applicant who clearly did not have the experience and skill the employer wanted, so
discriminated on the basis of union status. It insists that the grievant's use of legal
have been considered a subject for orientation, so the County was unreasonable. It states
County was arbitrary and capricious in setting a standard, not providing the grievant with a
hiring someone that did not meet the standard set for the grievant. The Union distinguishes
arbitration between the parties as it involved peculiar facts not present here. It maintains that
grievant should be judged by the standards set for the outside applicant but if the standards
Union applicants is applied, the grievant was qualified and should be awarded the position.
requests a finding for the Union.
The County contends that the Union attempts to draw parallels between the "job
the "outside hiring" process but no such parallels exist. It maintains that the "job posting"
was the subject of negotiations and is set out in the four corners of the contract, whereas the
hiring" process is not addressed within the agreement. It points out that probationary
not enjoy the same status or benefits as Union members awarded a position through the "job
system. It seeks to exclude consideration of any evidence related to the "outside hiring"
The County disputes certain allegations of fact in the Union's brief in chief. The
that filing documents by tax parcel number does not prepare one to interpret and/or
"metes and bounds" descriptions as the former involves rote memorization and the latter
comprehension of legal descriptions of real property. It asserts that the
Union makes general claims of wrongdoing by the County, but fails to offer any
factual or legal basis
for its claims and the Union's mere assertions and conclusions may be disregarded. It asks
grievance be denied.
Article 6, Section D of the parties' collective bargaining agreement provides, in
Whenever any vacancy occurs, it shall be given to the senior
qualified employee . . .
In the instant case, the grievant was the only employe who signed the posting so she
most senior. The issue in this case is whether or not she was qualified to fill the vacancy.
County insists she was not qualified and the Union insists that she is. In a prior arbitration
the parties, Door County, Case 103, No. 54678, MA-9753 (Jones, 10/97), the arbitrator
this same language set out above. The Union argued that the facts in that case differ from
present; however, even if the facts are different, the interpretation of the language and the
relied on by Arbitrator Jones are equally applicable to the instant case. The word "qualified"
defined in the parties' agreement and Arbitrator Jones found that in the absence of a
definition, the standards to be used in determining qualifications have been left to the
the determination concerning an applicant's qualifications will stand unless there is proof that
decision was unreasonable under the facts, arbitrary or capricious. Arbitrator Jones also
that qualifications determined by the County from a review of the Job Posting Form would
considered by the Arbitrator, but not additional information not given until after the position
filled. These conclusions as to the meaning of the contract language will be applied to the
The Union has argued that the County applied a different standard as to qualifications
inside applicants than for outside hires. The language set out above requires the County to
job to the senior qualified employe. Thus, a minimally qualified employe must be given the
a well-qualified junior employe or an exceptionally qualified outside applicant. Additionally,
contract provides a ten (10) day trial period for the minimally
qualified employe. No trial period is required for an unqualified applicant. Thus, the
employe must quickly demonstrate that he/she can perform the job for which he/she meets
minimum qualifications. The senior qualified employe does not lose his/her job if they fail
in the posted position.
On the other hand, an outside employe has no seniority so selection is based on
only, he/she serves a six-month probation and can be terminated without recourse to the
procedure. The contract provides no procedures for an outside hire so an applicant cannot
the County's selection process or the person selected. A new employe has no track record so
County must make determinations based on information provided and how the applicant
perform in the future rather than on qualifications on the Job Posting Form, and if
determined to be
"qualified," performance within ten (10) days. The two selection processes are not
comparison of one to the other is like comparing apples to oranges. Also, the record failed
establish that the job description requirements were different for inside and outside
The sole issue presented here is whether the grievant demonstrated that she was
the vacancy based on her Job Posting Form. The job description required the applicant to
"[A]bility to read, comprehend and follow simple to moderately complex legal descriptions
map." (Ex. 3) The grievant, besides listing her education information, clerical skills,
experience and references, stated that "My duties at the Planning Dept. have provided me
background in property maps through copying, filing and typing letters pertaining to various
and surveys and other property issues." (Ex. 4) The County concluded from this
the grievant was not qualified to read, comprehend and follow simple to moderately complex
descriptions on a map. This decision has not been shown to be unreasonable, arbitrary or
Merely copying, filing and typing letters related to a subject does not mean the person knows
subject. A person could copy, file and type letters related to medical issues but that would
demonstrate that they could perform as a Nursing Assistant, LPN or RN. A person could
and type letters related to football or personnel matters but that would not indicate that they
coach football or handle personnel functions. The evidence presented here failed to
the grievant had the ability to read, comprehend and follow simple legal descriptions on a
County's conclusion that the grievant was not qualified for the position because she did not
requirement set forth in the job description cannot be found to be unreasonable, arbitrary or
capricious and the County's failure to award her the vacant position did not violate the
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned makes the following
The County did not violate the parties' collective bargaining agreement by not
vacant Clerk Typist I position in the Real Property Listing Office to the grievant, and
grievance is denied.
Dated at Madison, Wisconsin, this 28th day of January, 2000.
Lionel L. Crowley, Arbitrator