BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ASSOCIATION OF MENTAL HEALTH
Mr. John S. Williamson, Jr., Attorney at Law, 103 West
College Avenue, Suite 1203, Appleton, WI 54911, appearing on behalf of the Association.
Mr. Eugene R. Dumas, Assistant Corporation Counsel, Rock
County Courthouse, 51 South Main Street, Janesville, WI 53545, appearing on behalf of the
The parties named above jointly requested that the Wisconsin Employment Relations
Commission appoint the undersigned to hear a dispute and issue an expedited arbitration
the transfer of intake work. A hearing was held on February 15, 2000, and the parties filed
March 8, 2000. The parties agreed that an arbitration award would be rendered by April 3,
The parties stipulated to the following as the issues to be decided:
1. Whether the County's contemplated and realized decisions
transfer the after-hours intake
work from the Juvenile Probation Officers or Child Protective Services employees, or both,
Intervention workers to perform such work violate the collective agreement? If so, what
2. Whether the County's contemplated and realized decisions
transfer the after-hours intake
work from the Juvenile Probation Officers or the Child Protective Services employees, or
Crisis Intervention workers to perform such work violate Section 111.70, Wis. Stats? If so,
should the remedy be?
This dispute centers around the County's decision to transfer the after-hours intake
the Juvenile Probation and Child Protective Service employees and give that work to Crisis
Intervention employees. There are about eight Crisis Intervention workers, some of them
A quick bit of the history of the bargaining unit. The Child Protective Service
previously been in a unit of Social Workers represented by the Machinists. The Juvenile
officers were in a unit by themselves and represented by the Teamsters. The Crisis
workers were in a unit with nurses and represented by the Association, or AMHS herein.
Wisconsin Employment Relations Commission combined the units in the Human Services
in February of 1997, and AMHS became the bargaining representative of the bargaining unit
in this case in a directed election.
Judy Schultz has been the president of the Association for four terms, and she took
negotiating the 1996-97 collective bargaining agreement that covers the bargaining unit as
composed. She recalled the bargaining over the language at issue for intake procedures and
of volunteers or using seniority if there were not enough volunteers. Schultz recalled that
proposed that all members of the unit to be voluntarily trained for intake duties. In
1999, Schultz learned that the Crisis Intervention workers were to be a backup service for
Probation intake after-hours, and that they would be required to go to juvenile justice training
January and February of 2000 and begin intake work in April of 2000.
Schultz recalled that in bargaining during 1987 and 1988, the crisis intervention and
adolescent services programs were being developed. The hours and shift differentials were
at that time, with a 35 cents per hour differential and an 11-7 shift that correlated with nurses
5th floor. The hours for Crisis Intervention workers were later changed to
8:00 p.m. to 4:00 a.m.
because of a lack of use between 4:00 and 7:00 a.m. When Crisis Intervention workers are
duty, nurses on the 5th floor psychiatric unit answer the phones.
Arbitrator William Houlihan ruled in September of 1999 that the County was to
employees for wages lost as a result of the change in the administration of
Section 15.08(E). During
negotiations for the current contract, the Association made proposals to work out payment of
15.08, and at that time, the Association learned that
the County intended to transfer the intake work to Crisis Intervention workers. Schultz
she filed a grievance because someone in Child Protective Services was not paid in
the Houlihan Award. CPS Supervisor Sally Biddick sent a memo saying that as a resolution
grievance, the work would be transferred to Crisis Intervention.
Crisis Intervention workers will have to take additional college courses to be qualified
perform intake duties. On April 29, 1999, the County Personnel Director, Karen Galbraith,
memo to Schultz listing the priority for employees to be trained for intake, which included
workers. Schultz thought that all training was on a voluntary basis, and filed an objection in
Jon Moldenhauer is a Juvenile Probation Officer with the County. The job
description for his
position requires previous professional experience with the juvenile justice client population.
Moldenhauer explained that he has to assess a juvenile, the juvenile's family and the offense
committed to decide whether to detain or release the juvenile. That's part of the intake duty
responsibilities as well. Moldenhauer takes calls while on after-hours intake duty and in
of offenses, meets with the juvenile and law enforcement officers. The list of duties and
responsibilities includes responding by phone and in person, and being available to appear in
for detention hearings if they put someone in custody.
Jody Kliscz is a Social Worker II connected with Child Protective Services. This
requires one to be a certified Social Worker or certifiable within a year. Kliscz works with
preservation team that helps keep children in their homes and makes conditions safer for
and another co-worker handle after-hours intake for the family preservation project, working
team with Kliscz taking the lead. They have a relationship with families that they've been
with. Kliscz has also done Child Protective Service after-hours intake, which ranges from
phone calls, taking physical custody of a child, going out to assess whether a child is safe,
a child, transporting and placing a child in a foster home, etc.
Darla Denman is a Crisis Intervention worker and a certified Social Worker. Not all
Crisis Intervention workers are Social Workers. Denman works a night shift from
4:00 p.m. to 12:30
a.m. when two Crisis workers are on duty. There is only one Crisis worker on duty
a.m. and 4:00 a.m., as well as from 7:30 a.m. to 2:00 p.m. There is no Crisis worker on
4:00 a.m. and 7:30 a.m. The Crisis workers have a variety of duties, including taking phone
from people seeking referrals or services, pursuing protective custody in certain cases,
assessments, delivering medications and welfare checks, screening admissions to the Rock
Psychiatric Hospital, etc. The job description for Denman's position requires a minimum of
of experience working with adults who have severe and persistent mental illness. Denman
required to be trained as a Juvenile Probation Officer and does not provide juvenile intake
protective services or family preservation services.
Rebecca O'Leary is a Crisis Intervention worker but not a certified Social Worker.
not believe she could be certified in a year due to the credits needed for the social work
program. She has been in her position for four years, and there was no requirement when
that she become certified as a Social Worker or a Juvenile Probation Officer.
Crisis Intervention workers were told in a meeting on November 2, 1999, that
training would be held in January and February, and that it was required training for Crisis
as a new part of the job.
Donald Mulry is the Director of the Human Services Department. He reports to the
Administrator, Craig Knutson, and to the Human Services Board that reports to the County
Mulry is responsible for making policy and budgets for the Department. On August 20,
submitted his budget requests for 1998, which indicate that he was looking into reducing
expenses for after-hours work and looking into having Crisis workers certified for billing
Mulry noted that there were three intake systems Crisis, Juvenile Justice, and Child
Services. He wanted to combine them but would have to upgrade Crisis workers. Mulry
that the Knutson did not agree to add enough Crisis workers to combine the intake systems
Mulry reintroduced the proposal for 1999. He wanted to start transferring intake duties from
Probation Officers and Child Protective Service employees by July 1, 1999. Knutson's
comments for the 1999 budget noted that the Department asked for three case manager
be added to the Crisis Intervention Unit. That would allow the Crisis workers to handle
intake after-hours and eliminate the need to pay a Social Worker to be on call after regular
One of Mulry's goals was to have one point of contact for after-hours services. He
wanted the bill third parties and Medical Assistance to pay for more caseworkers. The target
of July 1, 1999, to transfer work to the Crisis workers passed, and the new target date is
2000. Mulry testified that Crisis workers would first start taking after-hours intake calls for
Probation, and when that is up and running, they would start taking intake calls for Child
Services. Mulry thought that an initial screening would be handled by a Crisis worker, and
second person such as a Child Protective Service worker would be covered by the intake
in Section 15.08 of the collective bargaining agreement. One of the purposes of the planned
of work would be to save money by reducing the payouts for after-hours intake under Section
The effect would be that Juvenile Probation Officers and Child Protective Service employees
earn less money for after-hours intake. Mulry testified that the main purpose was to improve
to families in the community.
On October 7, 1999, the Association filed a grievance on behalf of Jody Kliscz for
compensation for after-hours coverage. Mulry received that grievance in late January or
February of 2000 in Step 2 of the grievance procedure, and granted the grievance. After the
grievance was filed, the work was removed from Child Protective Service employees and
Crisis Intervention workers. Work previously performed by bargaining unit members is now
performed by supervisors if necessary.
On December 8, 1999, the Association filed a grievance over requiring Crisis
workers to train for work performed by Juvenile Probation Officers. On December 9, 1999,
Association filed a grievance over requiring Crisis Intervention workers to train for work
by Child Protective Services team Social Workers and family preservation Social Workers.
Mulry has been present during the current negotiations and testified that the County
refused to negotiate the impact of the proposal to combine all intake systems and have Crisis
handle after-hours intake. He testified that he thought he could change the status
reaching an agreement with the Association on this matter.
Sally Biddick is the Division Manager for Child Protective Services. She testified
combined phone number for after hours services would be efficient, and if there is a need for
face-to-face contact, a Child Protective Services Social Worker and supervisor should be
testified that Jody Kliscz was the after-hours intake person at least once a month or so
was working with families in the family preservation program on a regular basis. Biddick
memo out on November 22, 1999 that in response to the recent grievances, the plan to cover
family preservation team's on-call duties would be assumed by Crisis Intervention on
THE PARTIES' POSITIONS
The Association asserts that the language of Section 15.08 of the bargaining
forth in comprehensive detail the parties' agreement concerning after-hours intake procedures
Child Protective Services and Juvenile Justice, as well as the employees who shall perform
their hours and their compensation. Section 15.08 also authorizes the County to assign
employees on a rotating basis starting with the least senior employee if there are too few
The Association states that the parties rejected the procedure the Machinists and the
adopted to handle Child Protective Services after-hours intake a voluntary system
that gave the
County the authority to install a shift system if the voluntary system failed to provide
exchange for the Association's commitment to ensure there would be sufficient employees to
24 hours, the County gave to up the right create shifts for after-hours intake work. The
agreed to change the Teamsters' procedure that permitted the County to designate on an
basis the employee who would handle Juvenile Justice after-hours intake.
Under the County's plan to transfer this work to Crisis Intervention workers, the
intake work will no longer be voluntary, and the Crisis workers will not receive any
compensation for performing the work. Section 15.08 would no longer apply to
Juvenile Justice work and would only apply when Child Protective Services employees
go to the site
once a Crisis worker determines that a child may be in danger. Thus, the County has
Section 15.08 and intends to substitute a different method of handling after-hours intake than
was agreed to. The County argues that Section 15.08 is permissive language, that having
workers handle calls is a matter primarily related to the policy and direction of the
Therefore, the County will only negotiate the impact of its decision to transfer the work, not
decision itself, and it is not willing to maintain the status quo during
The Association points out that nothing in the WERC's decision creating the existing
supports the County's position on the transfer of work. The Association states that even if
of Section 15.08 were permissive (and it is not), the County would still be required to
Section 15.08 as long as the collective bargaining agreement remains in effect. A party has
right to violate an agreement on a permissive subject of bargaining than it has to violate an
on a mandatory subject of bargaining.
The Association would object to the County's argument that Section 15.08 is
January 1, 2000, and points to Section 26.05 which states that the agreement shall be
full force and effect until a new agreement is reached. Thus, actions the County plans to
January 1, 2000, must conform to Section 15.08, even if portions of it were permissive
bargaining. Moreover, the County cannot unilaterally change the hours of bargaining unit
nor may it mandate overtime for Crisis workers.
Section 15.07 sets forth the shifts for Crisis workers and the shift differential, the
notes. The County now plans to add additional shifts to cover the period from 4:00 a.m. to
despite the fact that it gave up the right it had under the Machinists' contract to create shifts
after-hours intake. The County's plan to unilaterally determine a shift differential is contrary
Section 15.07, as well as the practice of the parties.
Turning toward potential statutory violations, the Association argues that the County's
unilateral actions violate its duty to bargain in good faith and maintain the status
negotiations with regard to mandatory subjects of bargaining. The legality of the County's
under Sec. 111.70, Stats., turns on whether the portion of Sec. 15.08 specifying after-hours
work shall be performed by Child Protective Services employees and Juvenile Probation
a permissive or a mandatory subject of bargaining.
The Association maintains that the County's plan is mandatory. The policies and
of the County in providing 24-hour intake service are unaffected by the decision of who shall
the work. State law determined those policies and functions. The County now merely wants
substitute Crisis workers for Child Protective Service employees and Juvenile Probation
Even if the matter of who does the work were a matter significantly related to questions of
management prerogative, the Arbitrator would have to balance the interest of the County
employees' interests in bargaining wages and conditions of employment.
Accordingly, the Association continues, the transfer of work has a negative impact on
earnings of Juvenile Probation Officers and Child Protective Service employees. The
on Crisis Intervention workers is the greatest. They must take special training in two
become certified to perform intake in Child Protective Services or certifiable within a year.
Crisis workers who are not certified and who cannot become certified within the year may
jobs. Without a doubt, the shifts Crisis workers work and the shift differentials they receive
mandatory subjects of bargaining. The transfer of work affects several mandatory subjects of
bargaining that the parties have agreed upon in Sections 15.01, 15.03, 15.07 and 15.08.
The Association contends and another reason the transfer is a mandatory subject of
is because a municipal employer may only unilaterally assign duties which fall fairly within
of an employee's regular job duties. Here, the duties of the Juvenile Probation Officers and
Protective Services employees are clearly outside the scope of the Crisis Intervention
therefore, the County must bargain over the change. The Crisis workers have never done
and must get special training to do it.
Finally, the Association asserts that the County's actions are in retaliatory. In
1997, Mulry asked for more positions to have Crisis workers handle all calls, but the County
Administrator denied the request. On September 2, 1998, the Association filed a grievance
County's refusal to pay Child Protective Service employees and Juvenile Probation Officers
compensation. Shortly thereafter in November of 1998, the County Administrator
more Crisis workers be hired to eliminate the need to pay Social Workers overtime for
work. On October 7, 1999, the Association filed a second grievance about paying a Child
Service employee certain compensation for after-hours intake. The County swiftly
family preservation team's "on call" to Crisis Intervention workers in November of 1999.
The Association concludes by stating that the Arbitrator should rule that the County's
and plans violate Sections 15.01A, 15.03, 15.07, and 15.08 of the collective bargaining
as well as Sections 111.70(a)1, 3, 4 and 5, Wis. Stats. The Association asks for a cease and
order preventing the transfer of after-hours intake work, as well as returning the work of
intake of family preservation to Child Protective Services until there is a new agreement
The County contends that its proposal for a single point of contact after-hours intake
services program is a permissive subject of bargaining. The proper test is a balancing test of
competing interests. If the employees' legitimate interest in wages, hours and conditions of
employment outweighs the employer's concerns about the restriction on managerial
public policy, the proposal is a mandatory subject of bargaining. If the management and
the governmental agency or the formulation of public policy
predominates, the matter is not a mandatory subject of bargaining. The impact of the
of permissive subjects of bargaining is a separate issue from the policy decision, and the
consistently been willing to bargaining the impact of its proposed policy change.
The County has made a policy decision to attempt to offer after-hours intake services
a single point of contact staffed by qualified employees during the normal working hours.
provide a higher quality service to citizens and contribute to better coordination with other
such as law enforcement. The effect that the proposal has in reducing expenses hardly
significance with the implications for service delivery, the County asserts.
Contrary to the Association, the County states that the record does not support the
that the proposal arose from the Houlihan Award nor from the filing of the grievance in that
other case. The proposal has evolved as it made its way through the formal budget process.
back from 1980, the County states that the record shows ongoing efforts to evaluate the
Services Department staffing and programs in terms of cost effectiveness and service delivery
of the budget process. The plan for increasing Crisis Intervention staff functions was under
consideration by August of 1997.
The County believes the record shows that the issues consist largely of attempts by
Association to preserve separate realms of work and compensation which are inconsistent
existing statutory Human Services Department model for which the County applied and
State approval to establish in 1994, along with the bargaining unit structure established by the
in 1997. The County believes that what is truly being arbitrated here is whether the public
choices may be thwarted by the insistence of the Association based on narrowly conceived
of separate self interest.
The County asserts that its proposal will substantially improve service by having just
number to call to assist law enforcement officers, family members and others trying to get
children. It is often unclear to parties seeking assistance what type of services they should
number will be provided to receive intake calls outside normal working hours, which will put
into contact with trained staff. Mulry testified how he looked at the three intake systems and
to combine them. Law enforcement people told him that there was some confusion and an
to get a hold of workers through the paging system. Biddick's testimony offered more
the proposal is a bona fide matter of policy and judgment as to how best to
improve the services
offered by the County. Biddick testified that improvement in service was more important
the dollars that might be saved, and the Crisis workers could handle the intake functions as
Child Protective Service employees remained available on call.
Sperling's testimony further supported the reasonableness and advantages of the
of contact proposal. Guisleman identified factors that convinced him that the Crisis workers
appropriate to handle intake calls for Juvenile Probation Officers and Child
Protective Service workers. He noted that Crisis workers have always handled calls
children and determined what type of services were needed. The County submits that
testimony speaks volumes in supporting the conclusion that the employees obstruct change.
testimony explains why the Association has refused to negotiate the impact of the proposal.
The County contends that its proposal has less of an impact on wages, hours and
of work than it has on policy and service delivery. The Association has not shown that the
is making a radical change, and intake has always involved a need for all employees to be
perform a basic level of screening and recognize matters that call for specialization outside
areas of expertise. The degree of change in the work performed by Crisis workers is
The County has also recognized that additional staffing would be needed, and while some
been added, there are limits to resources available to deliver all the types of services needed
The County further asserts that the record reveals that Crisis workers have had to
professional judgments about children who are referred by law enforcement or family
other instances, Crisis workers become aware of children in a home or family affected by a
brought to their attention for psychiatric screening. Crisis workers testified that they were
asked to assess children in the non-secure youth shelter facilities, many of whom had been
there by Juvenile Probation Officers. Thus, the record shows that Crisis workers have
had to make intake and screening determinations regarding children. Moreover, the County
a commitment to see that Child Protective Service employees continue to be available and
to intake where an initial intake indicates that child abuse or neglect is an issue. The County
always intended to comply with Section 15.08 to compensate employees who perform intake
outside their regular hours.
The County claims that its proposal does not violate any provision of the collective
agreement. There is no language in Section 15.08 that indicates that the procedure
established by that
section is exclusive. There is no language in the bargaining agreement that indicates that no
or practice can be adopted by the County which would have the effect of reducing the
earnings of bargaining unit members. Employees would continue to have opportunities to
in backing up the Crisis workers, and the after-hours intake procedure to Juvenile Probation
may also have to be used in the future. Section 15.08 does not guarantee wage-earning
Section 15.01 of the contract is not violated, the County states, as Crisis workers are
recognized as a distinct class of employees with more flexible scheduling requirements. The
proposal will not result in any new job descriptions, since the required qualifications for hire
general duties of Crisis workers as described in current job descriptions are not affected.
The County argues that it has not violated any statute, because is has simply
proposed course of action regarding a permissive subject of bargaining and has given the
a chance to negotiate the impact of the plan. The testimony of the bargaining unit members
the County was making poor choices. The County has the right under the Management
in Section 2.01 to determine the methods and processes and manner of performing work.
The County asks that the Arbitrator declare its proposal a permissive subject of
and find no violation of any lawful obligation.
The relevant contract language includes a section under Article XV of the 1998-1999
collective bargaining agreement, called "Hours of Work, Classification, Premium Pay":
15.01 A. Regular Workweek. The regularly
scheduled workweek for full-time employees shall
be forty hours per week, 8 or 10 designated daily hours (10 hr./day, 40 hr.
excluding regularly scheduled hours on Saturday and Sunday. Any permanent change for
unit, classification or employees in said hours will be mutually agreed upon by the
employee/employees, administration and the union. Any employee may request a flexible
schedule in any two week time/pay period with approval from his/her supervisor.
. . .
C. Crisis Workers. Regularly scheduled work week
of full time workers will be a total of eight
hours within a regularly recurring fourteen day pay period.
. . .
15.07 Shift Differential Crisis Intervention
Crisis Intervention Unit The
following shift differential schedule is established:
1. Full-time personnel whose regular hours
of work are 1:45 p.m. to 10:15 p.m., shall received
$2.00 per hour in addition to their regular hourly rate.
2. Full-time personnel whose regular hours
of work are 8:00 p.m. to 4:00 a.m., shall receive
$2.00 per hour in addition to their regular hourly rate.
3. All personnel working part-time during the hours specified in
(1) and (2) above shall receive
the differentials cited above.
15.08 An after hours intake procedure for
Protective Services and Juvenile Justice and all those
employees whose job duties include carrying a pager is established in accordance with the
After hours are designated as:
Monday, 5:00 pm to Tuesday, 8:00
am (15 hrs.)
Tuesday, 5:00 pm to Wednesday, 8:00
am (15 hrs.)
Wednesday, 5:00 pm to Thursday, 8:00
am (15 hrs.)
Thursday, 5:00 pm to Friday, 8:00
am (15 hrs.)
Friday, 5:00 pm to Saturday, 5:00
pm (24 hrs.)
Saturday, 5:00 pm to Sunday, 5:00
pm (24 hrs.)
Sunday, 5:00 pm to Monday, 8:00
am (15 hrs.)
A. All Non-Nursing Professionals will be
trained to perform intake duties. The County will
provide in-house training at no cost to the employee.
B. Pagers will be provided by the County to
all employees on call during after-hours.
C. An initial schedule will be established
covering a minimum three (3) month period of time.
Such schedule may be lengthened to meet the needs of the employees. Using seniority,
who have been trained may sign up for after-hours duty on a daily or weekly basis for any
shifts during the schedule period. The maximum number of days scheduled in succession
exceed seven (7) days. If no employee signs up for on-call duty, employees will be assigned
rotating basis starting with the least senior employee.
D. In addition to the normal scheduled work
hours, employees will be paid $3.41 per hour for
hours they are on-call. Employees will be paid $3.41 per hour for hours they are on-call on
E. Employees required to respond to
after-hours intake duties during their off hours shift will be
paid at the applicable overtime or compensatory times rate, however, no less than a
minimum of one
F. A back-up pool of volunteers will be
established to provide coverage if the employee
scheduled cannot be available.
The above sections were negotiated when the bargaining units were combined. The
1994-1995 labor agreement between the Teamsters and the County provided that: "Probation
Officers shall be designated Intake Workers on a revolving schedule and said
assignments will be
made on an equitable basis . . ." The 1994-1995 labor agreement between the Machinists
County provided for a voluntary after hours intake procedure.
I agree with the Association that the parties have negotiated a comprehensive
after-hours intake that designates who will do the work and how they will be compensated
it. The County cannot take that work away from two groups of employees, give it to another
of employees, designate new shifts, determine levels of compensation, all without bargaining
resolution of this matter. To do so violates Sections 15.01, 15.07 and 15.08. The creation
new or different shifts to cover after-hours would also violate Sections 15.01A, 15.07 and
The requirement that Crisis workers be trained to perform intake duties does not
Section 15.08A, since the language does not state that all non-nursing professionals
may be trained
to perform intake duties. Rather, it says that all will be trained. These parties
are well-known to this
Arbitrator, and they are sophisticated enough to know that the language used in Section
not voluntary language but mandatory language.
The parties both ask for a decision on whether the planned transfer of work is a
or permissive subject of bargaining, because they correctly assess their duties to bargain or
the status quo turns on this determination. Absent a valid defense, a
unilateral change in the status
quo of wages, hours, or conditions of employment during negotiations of a first
agreement or during the hiatus period between bargaining agreements is a per
se violation of the duty
to bargain in Sec. 111.70(3)(a)4, Stats. Northwest United Educators vs. St. Croix Falls
School District, Dec. No. 27215-B (Burns, 1/93), aff'd Ct.App. (1994). In
disputes subject to
final and binding interest arbitration, the statutory duty to bargain requires that the parties
the status quo on mandatory subjects of bargaining until a settlement or
arbitration award is reached,
but there is no such duty regarding permissive subjects of bargaining.
Therefore, the resolution to the issue of whether the County may legally make a
change and transfer the intake work depends on whether it is a mandatory or permissive
bargaining. A mandatory subject of bargaining relates primarily to wages, hours and
employment. A permissive subject relates primarily to the formulation or management of
I agree with the Association that on balance, the County's plan relates primarily to
hours and conditions of employment. The County is not establishing any policy change but
work from one group of employees to another group without bargaining over it.
Whether the County's goals are lofty (better service to the community, an aid to law
or self-serving (saving money) is of no effect in this determination. The goals may well be
The fact remains that the State has determined that the County provide this service. Who
work, when they do it and how much they are paid for it are all mandatory subjects of
Wages, hours and conditions of employment. The
Association correctly points out that two groups of employees lose earning
opportunities, while one
group will have to be trained in both juvenile justice and child protective service areas to be
to continue in their present jobs. They may need to be certified as Social Workers or
a year. The shifts they work and wages they receive are obviously mandatory subjects of
The County has tried to minimize the impact on Crisis workers and called the degree
change in the work performed by them as relatively minor. I disagree. The change is
Crisis workers have to be extensively trained to handle intake work. They will have to
certified as Social Workers or certifiable in a year, which could cause significant hardship to
not certified or without the kind of educational credits necessary to be certifiable. There is
possibility that one person could lose her job, and the County has made no offer to
person. Surely this change in work is not "relatively minor" but is a major change.
To prevail on an allegation of retaliation for engaging in protected concerted activity,
Association must show by a clear and satisfactory preponderance of the evidence that the
hostile to the bargaining unit employees engaging in protected concerted activity and decided
transfer the work in question, at least in part, because of this hostility. The Association has
not only that a grievance was filed, but also that some work involving the family
was transferred to Crisis workers by the County as a response to the grievance. This would
be retaliatory and must be restored to the status quo ante.
The decision itself the main issue regarding transfer of after-hours intake
is not retaliatory,
insofar as the Arbitrator can determine. The Director of Human Services started the process
There is no contention that Mulry was hostile to any union activity when he proposed this as
his 1998 budget requests. While the Association is suspicious about the timing of approval
budget request, the evidence falls short of clear and satisfactory preponderance of the
needed to sustain this charge of retaliation.
The transfer of after-hours intake work from Juvenile Justice and Protective Services
Intervention employees violates the collective bargaining agreement, in particular, Sections
15.07 and 15.08.
The County may require all non-nursing employees to be trained on intake work
violating the collective bargaining agreement, in accordance with the language in Section
The transfer of work is a mandatory subject of bargaining, relating primarily to
and conditions of employment, on balance, rather than a change in policy or change in the
The transfer of work would violate the status quo and therefore, if
done, would violate Sec.
There is no clear and satisfactory preponderance of evidence on the record that the
decision to transfer the work was in retaliation for union activity or the filing of grievances,
therefore, the County has not violated Sec. 111.70(3)(a)3, Stats., with the exception of the
the family preservation unit done by Child Protective Service employees that was transferred
workers in response to a grievance. This work must be restored to the status quo
The Arbitrator has found potential violations of both contract and law in accordance
conclusions noted above, while dismissing some of the other allegations of violations of both
and law. The parties have asked that I hold jurisdiction indefinitely while they attempt to
a resolution of this matter. Accordingly, no remedy will be ordered with this Award, but I
jurisdiction indefinitely or until otherwise notified that the parties have reached a resolution
Dated in Elkhorn, Wisconsin, this 31st day of March, 2000.
Karen J. Mawhinney, Arbitrator