BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LINCOLN COUNTY COURTHOUSE EMPLOYEES
LOCAL 332-A, AFSCME, AFL-CIO
Mr. Phil Salamone, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 7111 Wall Street, Schofield, Wisconsin 54476, appearing on behalf of
Mr. John Mulder, Administrative Coordinator, Lincoln County,
1104 East First Street, Merrill, Wisconsin 54452, appearing on behalf of the County.
The Lincoln County Courthouse Employees Union, Local 332-A, AFSCME,
hereinafter the Union, with the concurrence of Lincoln County, hereinafter the County,
Wisconsin Employment Relations Commission to appoint a member of its staff to serve as
to hear and decide the instant dispute in accordance with the grievance and arbitration
contained in the parties' collective bargaining agreement, hereinafter the Agreement. The
undersigned, Stephen G. Bohrer, was so designated and on December 2, 1999, a hearing was
in Merrill, Wisconsin. The hearing was not transcribed. On February 29, 2000, and upon
the last of the parties' written briefs, the record was closed.
The parties stipulated to the following issue:
Did the County violate the collective bargaining agreement by
refusing to pay Grievant the
Administrative Secretary pay rate; and if so, what is the appropriate remedy?
The following provisions of the parties' Agreement are cited, in relevant part:
ARTICLE 2 MANAGEMENT RIGHTS
2.01 The County possesses the sole right to operate County
Government and all management
rights repose in it, subject only to the provisions of this Agreement and applicable law.
include, but are not limited to the following:
A. To direct all operations of the County;
. . .
J. To manage and direct the working force, to make
of jobs, to determine the size
and composition of the work force, and to determine the work to be performed by
. . .
L. To determine the methods, means, and personnel by which
operations are to be conducted.
Any reasonable exercise or application of
the above-mentioned management rights which are
mandatorily bargainable shall be appealable through the grievance and arbitration procedure;
however, the pendency of any grievance or arbitration shall not restrict the right of the
continue to exercise these management rights until the issue is resolved.
. . .
ARTICLE 5 GRIEVANCE PROCEDURE
. . .
5.01 Definition and Procedure: A grievance is a
dispute between the Employer and Union,
an employee, or a group of employees concerning the interpretation or application of the
of this Collective Bargaining Agreement between the County and the Union.
. . .
. . .
6. Decision of the Arbitrator:
The decision of the arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to the interpretation of the contract in
the area where the alleged breach occurred. The arbitrator shall not modify, add to, or
from the terms of the Agreement.
. . .
12.01 An employee seeking a reclassification shall present
request in writing to the
department head. The department head shall notify the employee in writing of his/her
recommendation within ten (10) working days. This recommendation shall be forwarded to
Personnel Committee for consideration at the next regularly scheduled meeting.
A union employee who is reclassified shall
be paid at the pay rate in the new pay grade to
which the position is reclassified consistent with the employee's length of service with the
The effective date of the reclassification shall be the first day of the first pay period
. . .
The Grievant was hired by the County as a Clerical Assistant in the Zoning
December 2, 1996. Some of the County's other departments include the higher paying
of Administrative Secretary. At no relevant time has the Zoning Department included the
classification of Administrative Secretary. Grievant seeks, through the instant
grievance, to be reclassified from a Clerical Assistant with wages of $8.85 per hour to
Administrative Secretary with wages of $9.69 per hour, based upon her added job
within the Zoning Department.
Attached are the job descriptions at all relevant times of the Clerical Assistant and the
Administrative Secretary. Also attached is a list, created by Grievant, of duties that Grievant
currently performing. The record is not clear whether this list has changed since the filing
instant grievance, but the presumption is that it has not.
On June 30, 1997, Dan Miller, hereinafter Miller, was hired as the new Zoning
in the Zoning Department. Soon after Miller started, he changed the way certain jobs were
the Department, including Grievant's position. Those changes are discussed further below.
On September 22, 1997, Miller wrote the following letter to County Administrative
Coordinator John Mulder, hereinafter Mulder:
Pursuant to our conversation held last week
in your office, I am writing to you concerning the
position of Clerical Assistant currently held by Amy Kohnhorst. When I began work on
1997 I asked Amy and Kathy to provide me with a list of job duties (job description) and I
wanted to know what activities comprised their normal work day.
Upon reviewing the job descriptions and the
"list of daily duties" I discussed the matter with Amy
and Kathy. I wanted to make sure that I understood the normal functions of their positions
and I feel
that we are currently comfortable with every one's role and what is expected of them.
I am impressed with Amy's performance of
her job. With the shake up in the department she was
asked to take on an inordinate amount of responsibility. What impresses me in particular is
to work independently, primarily in the areas of public contact. She writes letters to
applicants in an
attempt to reconcile discrepancies with permit applications, provides information to the public
counter and over the phone and possesses a thorough knowledge of the ordinances we
brings me to the purpose of our initial conversation and for this letter.
I think that there is some disparity between
the requirements of the Clerical Assistant position
and those actually performed by the Clerical Assistant. As such I would like for you to
of three things regarding this position;
reclassify the job as an Administrative Secretarial position (similar
to the two in extension office),
rewrite the duties of the position and call it a Zoning Secretary position or change the grade
classification of the Zoning Clerical Assistant position.
She does a fine job, works independently
allowing Kathy and I to concentrate on other pressing
issues, and deserves recognition of her efforts.
Thank you for taking the time to consider
this request and I hope that you will forward a
recommendation for approval to the Personnel Committee.
Please call me at your convenience if you
would like to discuss this matter further.
. . .
On October 22, 1997, Grievant filed a grievance stating that she was performing
assuming responsibilities of a higher paid classification and not being compensated for it.
grievance was advanced, pursuant to Article 12 of the Agreement, but was denied by the
Personnel Committee. There is nothing in the record indicating the reason why the
Committee denied this grievance. Grievant's supervisor, Miller, then suggested to Grievant
was not in her best interests to pursue the matter to arbitration and that she should wait until
time to make another request. The grievance was later dropped and was not pursued to
On October 27, 1998, Grievant wrote the following memorandum to Miller:
I feel that the time has come for me to request a job
reclassification. On December 2, 1998, I
will be at my job for two years. In that time I feel that I have more than proven my
abilities. Additional responsi-bilities have been given to me, therefore my job deserves to be
My job should be reclassed to an
Administrative Secretary/Fiscal Clerk. The job requirements
have become more than the description of a Clerical Assistant. I have enclosed a list of
are not a part of my job.
Please consider my request. I would
appreciate a reply at your earliest convenience.
On October 27, 1998, Miller wrote the following memorandum to Grievant:
In consideration of this reclassification request, I evaluated the
responsibilities assigned to the
position as detailed in the job description as well as the duties performed now by the person
the position. Specifically I tried to determine if any additional responsibilities have been
the position. It is clear that additional duties and responsibilities are being performed. As
recommend approval of the reclassification request.
Sometime shortly after October 27, 1998, Grievant appeared and presented her
a reclassification to the Personnel Committee. The Personnel Committee denied Grievant's
Although the process of this request was similar to a grievance procedure, the matter was
grieved. There is nothing in the record indicating the reason why the Personnel Committee
Sometime during or shortly after Grievant's 1998 request for a reclassification,
consulted with Deborah A. Rauchel, hereinafter Rauchel. Rauchel had held Grievant's
Assistant position immediately prior to Grievant taking the position. Rauchel assisted
obtaining information regarding other counties' zoning departments' wage rates and job
for secretarial positions and which were comparable to Grievant's position.
On May 12, 1999, Grievant wrote the following memorandum to Miller and
I am requesting a job reclassification. With the busy season upon
us, it is now more evident that
my job deserves to be reclassed. My job includes clerical duties, but the position is
performing program related duties with considerable amount of independent decision making.
is also approximately one-third of the time that I am the only staff in the office.
There have been recent problems going on
in the office. I do not feel that this should influence
your decision to support my reclass. As you know I have continued to do my job and to
the staff to best of my abilities.
During the past several months, I have
conducted a wage study of the zoning and planning
agencies in the counties in Wisconsin. The information has been reviewed and the counties
most comparable according to population size and work related duties are attached.
and wage information
can be provided if needed. The wage study shows the wide
variety of duties performed by the
secretarial staff. It also shows the difference in the wages that are paid for secretarial staff
similar job duties. All of the counties that were surveyed are earning higher wages than the
Assistant in Lincoln County although the job duties are similar. I am not requesting an
match any of these other counties only to be reclassed to an Administrative Secretary/Fiscal
As evidence supported by the attached
documents, the past and present Zoning Administrators
have both supported this position being reclassed to Administrative Secretary/Fiscal Clerk.
MacMorran supported the reclass before the job changed and became more involved and
Please consider all of the facts for the
reclass. I know that the position should be reclassed and
hope that you also support the reclass.
On May 21, 1999, Miller wrote the following letter to Mulder in support of
renewed request for a reclassification:
I have received a request for reclassification
from Amy Kohnhorst, our current clerical assistant.
Her request is to be reclassified from a Clerical Assistant to Administrative Secretary or
In addition to this request she supplied comparisons from other counties of near equal size, in
of population, as well as salary information. It is clear that our compensation schedule is
comparison to those that she has submitted for similar duties.
John, I know that the Personnel Committee
has heard this issue twice before, and no doubt will
be sick of it soon if not already, but the fact remains that the work Amy is performing is not
of the duties described for a Clerical Assistant. Things are somewhat unique in the Zoning
Department in that we do have a Program Assistant and Amy's position that kind of blend
the duties described in the positions in other counties. My assessment of the job Amy is
however leads me to believe that she should be "something other" than a Clerical Assistant
is confined to primarily prescribed, closely supervised tasks only). She has to deal with the
a regular basis and those contacts do involve the exercise of independent thinking and
independently in both explaining the ordinance parameters to the public and corresponding to
The functions outlined in the job description for Administrative
Secretary do correspond very
closely with the duties she is currently performing. Please John, give this matter some
alternatives to a reclassification such as, changing the grade of the Zoning Clerical Assistant,
creating another classification for this position are probably more upsetting to the "scheme of
than the result of this reclassification request.
Once again, I support this request and hope
that you will too.
On June 15, 1999, Grievant filed a grievance seeking reclassification. The grievance
proceeded pursuant to Article 12 of the Agreement and went before the Personnel
Grievant presented her research and information regarding other counties' wages for
positions. The Personnel Committee denied Grievant's request and the matter was advanced
arbitration. There is nothing in the record indicating the reason why the Personnel
At the hearing, the Union presented testimony by the Grievant, by Zoning
Miller, by former Zoning Program Assistant Cathryn Haas and by former Zoning Clerical
Deborah A. Rauchel. The County did not respond with any witnesses.
Additional background information is set forth in the parties' positions and in the
discussion of this decision.
POSITIONS OF THE PARTIES
When Miller assumed the position of County Zoning Administrator in 1997, he
series of substantial changes in the operation of the Department, which included adding a
number of duties and responsibilities to the Grievant's position. The Grievant's position thus
exceedingly different from the position under which she was initially hired. After Miller
the situation, he concluded that Grievant's work as a "Clerical Assistant" more closely
duties and responsibilities of the Administrative Secretary classification and that the latter
classification received higher pay. While there are similarities between the two positions, the
"differs from that of the Clerical Assistant primarily in [its being responsible for] relieving a
of administrative details, including responding independently to routine correspondence."
County's job description for Administrative Secretary).
The grievance is unique in that it has formal support of Grievant's supervisor, Miller,
works closely with Grievant. He is in a position to recognize first hand the inequity which
to the grievance. Further, any wage adjustment that might result from this grievance would
directly from his Department's budget.
Grievant's position has now become wholly consistent with the Administrative
classification. As both Grievant and Miller testified, Grievant's position now regularly
to relieve Miller of administrative details and commonly includes responding independently
correspondence. According to the Administrative Secretary job description, these are the
distinguishing characteristics to that of the position of Clerical Assistant.
The Union could have challenged the assignment of Clerical Assistant duties to
being inappropriate because they fall outside of the scope of her classification. Perhaps the
could have also grieved that the County effectively created a new position which should have
posted in accordance with Article 11. The Union decided, rather, that it would be more
the Grievant to work within the channels of management to secure compensation for the
This grievance challenge is contractually sound. Wages of all positions within the
are negotiated so that they relate to the duties and responsibilities of the specific positions to
they apply. A wage schedule is included within the Agreement as an appendix and it
classifications and levels of compensation. This schedule was negotiated with the expectation
persons filling those positions would be compensated accordingly. For example, a
with 48 months of service would receive $12.47 per hour in 1999. Even without a job
it is universally understood that correction officers have specific duties and responsibilities.
Nutrition Site Manager is another position whose wages range from $6.33 to $8.26 per hour
with differing duties and responsibilities. The Nutrition Site Manager should not be assigned
duties of a Correction Officer; however, if this occurred on a regular basis, that person
compensated accordingly. It would be fundamentally inequitable and contractually
such an individual to be paid at the lower wage rate. Otherwise, an employer could hire all
at a lower wage rate position and assign the higher paid duties. This would be fundamentally
inequitable, absurd, and render the wage schedule meaningless.
Interpretations of contract language which would lead to absurd outcomes have often
repudiated by arbitrators. For example, when one interpretation of an ambiguous contract
to harsh, absurd, or nonsensical results, while an alternative interpretation, equally
lead to just and reasonable results, the latter interpretation would be used. Inspiration
Consolidated Copper Co., 50 LA 58, 62 (Block, 1968). Likewise, in all construction
the search is one for the intent of the parties; one must look at the
language in light of experience and choose that course which does the least violence to
of a reasonable man. Clifton Paper Board Co., Inc., 11 LA 1019, 1020 (Stein, 1949).
This is essentially what the undersigned Arbitrator is faced with in the instant dispute.
essential question is whether or not a pay rate should be consistent with the scope of
a position. The Union believes that it should. Elkouri states that while management often
authority to assign duties and tasks to employees, the union in turn may challenge the
fairness of the
rate paid for the job after its change; moreover, employees temporarily performing work that
higher than their regular work may be entitled to the higher rate for performing the higher
Other arbitral case opinions support this principle. Amana Refrigeration, Inc., 89 LA 571
(Bowers, 1987); Brass Products Co., 85 LA 465, 468 (Lipson, 1985); Minnesota
Manufacturing Co., 80 LA 1078 (Miller, 1983).
In this case, there is no dispute that there have been substantial changes in Grievant's
and responsibilities. These alterations have transformed her position to that of an
Secretary. Therefore, the grievance should be sustained.
There is no violation of the collective bargaining agreement. Grievant applied for,
appointed to, and began employment as a Clerical Assistant. She was notified of the wages,
and conditions of employment relative to a Clerical Assistant prior to her taking the position
accepted those items when she began her employment. The County continues to live by the
agreement with Grievant when she accepted her employment. On its very face, this
be denied. Grievant testified that her current job title and rate of pay is that of a Clerical
The County is following its negotiated agreement with the Union by paying her the agreed
rate for Clerical Assistant.
Under Article 2 - Management Rights, the County has the sole right "to manage and
the working force, to make assignments of jobs, to determine the size and composition of the
force, and to determine the work to be performed by employees." In this case, the County
determined the size and composition of the work force, has made job assignments within the
Department, and has created a Clerical Assistant position. Since filling that position, the
Committee, on three separate occasions, has reviewed the Clerical Assistant position and
that it did not warrant a change.
Article 12 Reclassification requires that a reclassification be approved. If it
then there is no reclassification. Grievant can only receive an Administrative Secretary rate
if the County approves the reclass, per Article 12, or if she posts into the position, per
Job Postings, Transfers, and Promotions. The Union should not be
allowed to dictate through the grievance arbitration procedure how many of each type
the County has in each department. Until such time that the County either grants a reclass to
Grievant or she posts into an Administrative Secretary position, the County is paying the
consistent with the wage schedule.
Because the granting of a request for reclassification changes the wages and
employment, it is a mandatory subject of bargaining. If the County were to reclassify a
downward, the Union would cry foul and demand that the County bargain over it. There is
contract language that requires the County to grant a reclassification request. If Grievant and
Union can grieve her wage rate as a right, then what would be the point of reclassification
The fact that there is a reclassification procedure in the Agreement should bar Grievant and
from making a Clerical Assistant wage rate change through the grievance process. The issue
reclassification should be seen as permissive and not a right under the contract.
Failing to receive a reclassification, Grievant could have grieved the work, and if the
felt that there was merit, then the County could have reassigned the work. If the Union
these job assignments are unreasonable, and this Arbitrator agrees, then the County could
job assignments. Arguably, the County could do that now and Grievant's claim for higher
With three requests for a reclassification and two grievances being processed and
is obvious that the County disagrees with Grievant and the Union as to the merits for this
But that disagreement as to the merits should be characterized as a disagreement of an
not a right under the contract. The real issue is not about a job title, but about the wage rate
position. What is the most reasonable or the most appropriate rate of pay? As a basis for
Grievant provided the County with comparable wage information from other counties. This
an argument does not belong in a grievance arbitration for a reclass, but in bargaining
and in front of an interest arbitrator. The grievance should be denied and the Union should
instructed to bring up the reclass request at the bargaining table.
Furthermore, Grievant is doing the work of a Clerical Assistant, which is consistent
position's job description. The Clerical Assistant job description is general in nature and not
the listed duties are applicable to specific departments. Nor are all of the duties that an
Clerical Assistant performs specifically listed in the Clerical Assistant job description.
after reviewing the description list that Grievant created of her duties and reviewing the
Assistant job description, the end result shows that much of what Grievant does perform is
with the duties of a Clerical Assistant. For example, the Clerical Assistant Job Description
the Clerical Assistant position:
Types letters, memos, reports, forms, hearing notices,
petitions and client case reports from copy or
dictaphone. Compare Grievant's list, No. 5.
Sets up and assembles folders for
all new cases, clients, complaints, etc. Compare Grievant's list,
Files correspondence, memoranda,
reports vital statistics and forms alphabetically, numerically or
according to other predetermined classifications. Compare Grievant's list, Nos. 6, 7, 8, 9,
14, and 15. All of these duties are a matter of filing and keeping records in prescribed
Works at counter and provides
information and assistance to public. Compare Grievant's list, Nos.
2, 12, and 18.
Checks documents for accuracy and
completeness before processing. Compare Grievant's list No.
Answers telephone, takes messages,
greets visitors, gives out information, and refers callers as
required. Compare Grievant's list, Nos. 1 and 12.
Collects, receipts and deposits fees
for department services. Compare Grievant's list, No. 3.
Duplicates and collates various
materials. Compare Grievant's list, No. 13.
Maintains a wide variety of fiscal
and clerical records and prepares reports as necessary. Compare
Grievant's list, Nos. 6, 7, 8, 9, 10, 14 and 15. All of these duties are a matter of filing and
keeping records in prescribed ways.
Reviewing Grievant's list, the duties show that a large number of tasks, i.e., Nos. 6,
7, 8, 9,
10, 14 and 15, are related to filing information and keeping records according to
classifications and maintaining records. These are things specifically listed in the Clerical
job description. The fact that some of those records were not kept before does not warrant a
The measure of independent work is a relative one, which should be compared from
position to another. The level of independence varies from one duty to another and from one
classification to another. The level of independence may even vary from time to time in an
employee's career. At first, an employee may need much supervision. Other times, little
is required. The judgment of how much independence is needed for a determination of a
reclassification should be left to the Personnel Committee.
The County concedes that the Clerical Assistant job description and the
Secretary job description are fairly similar. But the impact of changing the job descriptions
be done at the bargaining table and not through the grievance procedure. However, there is
enough similarity between the Clerical Assistant job description and the Grievant's list to
the Personnel Committee's action was not arbitrary.
The Union has not held a consistent position on the merits of this grievance or
reclassification requests. Grievant has requested a reclassification on three separate
first request was less than one year after accepting the position, was denied by the Personnel
Committee, and was subsequently grieved. That grievance was ultimately dropped without
apparent reason. The second request was denied by the Personnel Committee, but neither
nor the Union grieved it. The third request was again denied by the Personnel Committee.
time, the Union feels that there is merit to proceed to arbitration. The Union provided no
as to the change in their position relative to the merits of a reclassification. If the County
clearly violating the Agreement as the Union suggests, why didn't they proceed to arbitration
the first or second requests? The Union does not have a consistent view of the merits of the
reclassification request and its actions could be described as capricious.
The Union's evidence relies solely on the opinion of other bargaining unit members
a vested interest in supporting Grievant, but have no experience in human resources. While
may know her job duties better than anyone else, she has no experience working in any other
to make a comparison. In addition, the County questions the validity and significance of the
testimony of Grievant's supervisor, Miller, and his support of Grievant's reclassification
Miller's reason for this support is that "things are somewhat unique in the Zoning
However, Miller has never worked in another Lincoln County department and, therefore,
qualified to determine the "uniqueness" of his Department. Miller also testified that he has
with the County since July of 1997, and that at the time of Grievant's initial request he had
the County less than three months. Thus, Miller's ability to compare jobs within the County
be suspect. Other arbitrators have recognized the relative little significance given to the
of a supervisor or a department head. Kenosha Co., WERC MA-9021 (Gratz, 1996). Other
arbitrators have shed some light on the standard of review for decisions by personnel
(Portage Co., WERC MA-8768 (McLaughlin, 1996)) and have gone so far as to say that
a request for a reclassification may be arbitrable, the analysis is to review the Personnel
decision and not a de novo review of the request for
reclassification. Vernon Co., WERC MA-7210
In this case, there is no evidence that the Personnel Committee's decision was
capricious, or unreasonable. The Union only presented its opinion, self-serving as it was,
would have reached a different conclusion than the Personnel Committee. But it is the
and the right of the Personnel Committee to make the decision under the contract. The
has considered and denied the request on three separate occasions. It would appear that the
view of the merits of this reclassification and grievance is more arbitrary and capricious than
County's view of the merits.
If the Arbitrator finds that the County violated the Agreement, then Grievant should
automatically be reclassified as an Administrative Secretary. If Grievant's work is that of an
Administrative Secretary, then she should be paid that rate and the County should reassign
those duties which are not consistent with the position of Clerical Assistant. Grievant
remain a Clerical Assistant, but her Administrative Secretary duties would be reassigned.
any remedy should be limited to the time that Grievant filed the current grievance until such
her Administrative Secretary duties are reassigned. The County should not be forced to
new position of Administrative Secretary in place of the Clerical Assistant. Article 5.02,
6, dictates that the arbitrator "shall be restricted solely to the interpretation of the contract in
where the alleged breach occurred. The arbitrator shall not modify, add to, or delete from
of the Agreement." The Union's proposed remedy does not automatically follow from a
that the contract was violated. To award the remedy suggested by the Union would be
Although Grievant may have been told at hire that her wages and conditions of
were as a Clerical Assistant, and although she may have accepted those by beginning her
as such, the County's "agreement" with Grievant represents an individual one. The County
into a collective bargaining agreement with the Union which includes a listing of positions
corresponding wage rates. It is this agreement that the
County must honor and which is the principal
focus of this proceeding. (Emphasis in original). There is no evidence to support the
suggestion that it engaged in an individual contract with the Grievant. Assuming
arguendo that there
was such evidence, it would be superceded by the terms and conditions of this Agreement.
addition, the County neglects the fact that the Grievant's position has changed dramatically
Grievant's date of hire to the point where it no longer approximates a Clerical Assistant
Thus, even if there had been an individual agreement with Grievant and without the presence
union, such an agreement would have been violated by the transformation of the position.
Probably the best argument advanced by the County is that there are only two ways
Grievant to receive reclassification or a higher rate of pay through the Agreement: either
approval via Article 12 or through job posting via Article 11. However, if this argument is
its ultimate and likely destination, it becomes absurd. There can be no question that all of
Agreement's provisions require a degree of reasonableness in their application. An employee
into a certain position is responsible for the performance of a certain range of duties and
responsibilities expected of the position. If the County decides to modify
that position where it is
transformed into a totally different position, then the Agreement assumes that the Personnel
Committee will act responsibly and in a reasonable manner to reclassify the position.
original). What if the County decided in a comprehensive manner to add duties and
to all positions, and then decided on a budgetary basis to institute a blanket denial of all
reclassifications? Clearly the reclassification language must be harmonized with the wage
in a good faith and reasonable manner. Unfortunately, this has not been done.
The County's assertion, i.e., that the Union should not be able to dictate through the
grievance arbitration process the number of positions the County has in each department, is
issue. The more appropriate issue is whether the County can ignore the Agreement's wage
and its job descriptions when exercising its discretion in reclassifications. Again, the rule of
The Union poses a series of questions in response to the County's question of
Grievant and the Union can grieve Grievant's wage rate as a right. If the County has an
right to transform positions and respond to reclassifications with arbitrary and capricious
what do the job titles mean? Can there be a "harmonization" of the wage schedule and
reclassification language? If not, can't the reclassification language effectively nullify job
It is true that if the Arbitrator agrees with the Union, then the County could change
Grievant's assignments and/or reassign her work in order to undercut the Grievant's claim
wages. The Arbitrator could reasonably include in a remedy that the County either modify
duties and responsibilities or pay her a wage rate consistent with the job that she is
The County's contention - that the issue is not about a job title but about the wage
the position is half true. The real issue is whether or not the wage rate listed in the
to its corresponding job title.
The Union disagrees that Grievant's work is consistent with that of a Clerical
it mean nothing when a County prepared job description distinguishes a position from another
expressly identifying a specific property? The Grievant's position has been dramatically
as a result of the Zoning Department's restructuring, the Grievant has assumed a high degree
independence in her job which was not formerly a part of her duties. The Administrative
Job Description distinguishes the Administrative Secretary position by indicating that it
that of the Clerical Assistant primarily in [its being responsible for] relieving a supervisor of
administrative details, including responding independently to routine correspondence."
There is no
dispute that the Grievant has regularly been performing such duties. (Emphasis in
While it is true this is the third time that Grievant and the Union have pursued this
is incorrect to assume that the Union's position on the merits of Grievant's claim has
decision as to whether to pursue a grievance and/or how far to pursue it is made based upon
of criterion. Unions withdraw grievances for political, financial, strategic, as well as for
personal reasons. Grievance arbitration is often considered a last resort. In this case,
been extraordinarily patient in trying to convince the Personnel Committee to be reasonable.
However, the Personnel Committee's stonewalling has left Grievant and the Union with no
but to proceed with grievance arbitration.
The Union disagrees with the County's contention that the Union's evidence relies
the opinion of other bargaining unit members who have a vested interest in supporting their
member. First, the Union members who testified did so in good faith and had no "vested
in the outcome of this dispute. Second, Miller, who testified on Grievant's behalf, is a
Head and is not a bargaining unit member. It could be argued that Miller had a "vested
paying Grievant at the lower wage rate since any additional wages would come from Miller's
Department's budget or that it would be against Miller's interest to assist the Union since he
is an "at
will" employee. Third, the job descriptions and the collective bargaining agreement are
In response to the County's citation to an arguably similar case decision of former
Arbitrator Schiavoni (Vernon County, WERC MA-7210 (Schiavoni, 1992)), the Personnel
Committee has yet to provide a reason for its refusal to reclassify Grievant. Thus, the
Committee's only reason effectively becomes "No, because we said so." The Union agrees
Schiavoni citation. However, had the County acted in a good faith manner, we would not be
The Personnel Committee did not properly consider its own job descriptions or the
of its own supervisor in its decision. And since the record is totally devoid of
any rationale adopted
by the Committee, an adverse inference can be made. That adverse inference is further
that the County did not use any Personnel Committee members as witnesses in this case.
appears to be a continued act of stonewalling which is indicative of a pattern of bad faith that
rise to this grievance.
The instant grievance should be sustained by the Arbitrator and the Grievant made
all of her losses.
Some of the facts in the Union's brief are misleading and in some cases wrong. It
Miller instituted a series of "substantial" changes which included adding a "significant"
duties and responsibilities to the Grievant's position. It then concludes that in doing so, the
grew to the point where it became exceedingly different from the Clerical Assistant position
which Grievant was initially hired. These are not facts, but rather opinions of the Union.
its brief states that Miller's evaluation resulted in a determination that Grievant's position
longer consistent with her original position and that the Administrative Secretary position
closely comported with Grievant's modified position. These should not be described as facts,
rather Miller's opinion.
It is blatantly wrong for the Union to assert that by the fall of 1998, no action had
by the County to address the problem. The exhibits of this case show just the opposite. The
show that in the fall of 1998, the County had reviewed the reclassification requests on two
and had denied them. Further, the Union grieved the first denial of
Grievant's reclassification request and then subsequently dropped the grievance. The
Union then did
nothing, i.e., there was no grievance, when the Personnel Committee denied the request a
time. It wasn't until Grievant made a third request in May of 1999, and the Committee's
that the Union filed the current grievance. The inclusion of these facts are extremely
The County wholeheartedly agrees with the Union that the essential question is
not a pay rate should be consistent with the scope of employment for a position. But the
argues that it is paying consistent with the scope of employment for the position.
The Union attempts to persuade the Arbitrator that because Grievant believes she
independently and is supported by her supervisor, Miller, that she should receive the
Secretary rate of pay. The Union seems to believe that Miller's testimony and support is
this case and should decide this case. However, what evidence or argument does the Union
forward as to the relevance of Miller's credentials? Miller testified that he was not qualified
determine the uniqueness of the Zoning Department. Also, Miller could not compare the
level of independence that his staff uses as opposed to an Administrative Secretary in another
department. Grievant and Miller are too close to the situation to see the bigger picture.
the Personnel Committee is better situated to make the comparison between departments than
Grievant or her immediate supervisor. As previously stated, the Personnel Committee's
should be given great deference where there was no evidence of it being arbitrary,
Contrary to the Union's contention that Grievant's position has been substantially
transformed, a review of the very specific tasks in Grievant's list, when compared to the
Assistant job description, shows that many of these duties could be classified as record
filing information according to predetermined classifications.
The Union's argument is centered on comparing the job classification with the wage
the Appendix of the contract, but it ignores the specific contractual language regarding
reclassification. The Union cites the extreme example of correctional guards and nutrition
managers. In those examples, there are little misunderstandings or confusion regarding the
those positions. There is also little if any overlap in duties between those two classifications.
However, there is overlap and shared duties between the Administrative Secretary and
Assistant positions. Management should be given broad authority when the work is similar
are shared by classifications. Elkouri and Elkouri, How Arbitration Works,
5th Edition (1979).
Given Grievant's self-serving opinion about her exaggerated importance and
the Union attempts to pick the option of how to proceed. The Union argues that it could
challenged the assignment of Administrative Secretary duties or chosen to grieve that the
effectively created a new position which should have been posted. However, the Union
a remedy to address those times when it feels that employees are asked
to work outside their classifications. It is the clear language of Article 12. An
employee can request
a reclassification, but the contract does not bind the County to grant a request. The Union
mention that they were unsuccessful on three occasions in the one remedy that they had by
The Union fails to mention this because it knows that the County has the sole right to
types of positions that the County will have. It knows that the reclassification procedure and
request are just attempts to bargain an interest during the term of the contract. In the case of
Grievant, the County considered her request three separate times and denied them each time.
Grievant and the Union have raised this issue five times with the County in one form
another: 1) Grievant requested a reclassification which the Personnel Committee
denied; 2) Grievant
filed a grievance, the Personnel Committee denied it, and then Grievant and the Union
grievance; 3) Grievant made a second request for reclassification which the Personnel
denied; 4) Grievant made a third request for reclassification which the Personnel
and 5) Grievant filed a second grievance which the Personnel Committee denied. The
County, on the
other hand, has been consistent in its stance relative to the appropriate pay rate for Grievant.
The Union's argument, i.e., that it was more practical and constructive to the general
relations climate for Grievant to work within the channels of management to secure
appropriate compensation for the newly transformed position, is disingenuous. Given the
Grievant has made three requests and has filed two separate grievances, shouldn't the Union
that it should discuss this issue at the bargaining table? The Union's decision to arbitrate
of doing so following the first grievance denial in 1997, or failing to grieve Grievant's 1998
can only be understood as capricious. The fact that there was no grievance filed following
of Grievant's 1998 request should speak volumes about the Union's belief over the merits of
grievance. The Union's admission of picking an avenue to proceed shows the arbitrariness
action. It is the Union which has been far more arbitrary and capricious with its own
the consistent action of the Personnel Committee.
The County agrees with the Union's thesis, i.e., the essential question is whether or
not a pay
rate should be consistent with the scope of employment for a position. However, the wage
the scope of employment are matters of agreement between the County and the Union.
rates are for specific positions and have been negotiated between those two parties. The
is set and agreed to by both parties either through voluntary settlement or through interest
If during the term of the agreement those wage rates are no longer acceptable for that scope
employment, then either party could raise the issue in contract negotiations. That is exactly
this dispute belongs, at the bargaining table.
Management should be given broad leeway in assigning duties and the decisions of
Personnel Committee regarding Grievant's reclassification requests should be given great
The Union should not be allowed to pick its method to obtain what it believes the appropriate
rate for Grievant, but rather bargain that in contract negotiations.
For all of these reasons, the grievance should be denied.
Grievant seeks reclassification of her position from a Clerical Assistant to an
Secretary. Article 12 of the parties' Agreement is a provision which creates a vehicle for
to make such a request. After following certain procedural steps, Article 12 states that
Personnel Committee shall give these requests "consideration." Presuming that the
have been followed, and that proper consideration by the Personnel Committee has been
Article 12 then requires that the requests are either granted or denied by the Personnel
In this case, the Personnel Committee denied Grievant's request for a reclassification which
in Grievant filing the instant grievance.
Article 5 defines a grievance as "a dispute between the Employer and the Union, an
or a group of employees concerning the interpretation or application of the provisions of this
[Agreement] . . ." Since Grievant and the Union dispute the manner in which the County
and applies the provisions of Article 12 regarding Grievant's request for a reclassification
Personnel Committee's denial of that request, then this dispute is an appropriate subject for
grievance. Article 5 also states that "[a]ny grievance which cannot be settled . . . may be
to an arbitrator" and "[t]he arbitrator shall be provided by the Wisconsin Employment
Commission from a member of its staff."
The parties do not dispute that Grievant and the Union properly advanced the instant
grievance pursuant to the procedural steps in Article 5 and that the grievance cannot be
do the parties dispute that Grievant and Union took the prerequisite contractual steps in
to advance Grievant's reclassification request. Because Article 12 is a part of the
because Article 12 does not include any language which excludes it from being subject to the
grievance procedure, it must be assumed that the provisions of Article 12 are subject to
Article 5 and
the parties' grievance and arbitration procedure. Therefore, the Personnel Committee's
deny Grievant a reclassification and its refusal to pay her the Administrative Secretary
pay rate is an appropriate subject for arbitration and this Arbitrator is empowered by the
to review the Personnel Committee's decision with respect to Grievant's reclassification
Article 2 gives the County broad discretionary rights, including the right to "direct all
operations of the County" and "manage and direct the working force, to make assignments of
jobs, to determine the size and composition of the work force, and to determine the
work to be
performed by employees." However, as reflected in Article 2 itself, the exercise of
rights must be "reasonable." Thus, the question before me is whether the Personnel
"consideration" of the reclassification request was "reasonable" (i.e., in good faith and not
discriminatory or capricious). See, e.g., Vernon County, WERC MA-7210 (Schiavoni,
I disagree with the County that this grievance, on its face, should be denied. The
Grievant accepted, is currently occupying, and is being paid the classification rate of a
Assistant is not controlling. If Grievant's position comprises the duties and responsibilities
Administrative Secretary, regardless of Grievant's job title or pay rate, then the outcome of
grievance will depend upon whether the Personnel Committee acted reasonably, i.e., in good
that the result is not arbitrary, discriminatory or capricious. If, on the other hand, the
comprises the duties and responsibilities of a Clerical Assistant, then it can be presumed that
Personnel Committee's decision was reasonable and there is no violation.
In cases dealing with reclassification requests, it is relevant to compare the
and responsibilities with the duties and responsibilities that distinguish the position into which
incumbent seeks reclassification. See, e.g., Kenosha County, WERC MA-9021 (Gratz,
is the arbitrator who is responsible for making this comparison based upon all of the
presented at the arbitration hearing. Id.
When the job descriptions listed for the Clerical Assistant and the Administrative
are compared and the overlapping duties are accounted for, the functions characteristic of the
Administrative Secretary classification are primarily the use of independent judgment.
positions list clerical duties, such as filing and maintaining records, the distinguishing
of the Administrative Secretary is the degree of independence required and exercised.
the "Distinguishing Features of the [Administrative Secretary] Class" within the
Secretary job description states:
The work requires the exercising of independent judgment in the
application of office procedures
and regulations. This classification differs from that of Clerical Assistant primarily in
supervisor of administrative details, including responding independently to routine
Conversely, the "Distinguishing Features of the [Clerical Assistant] Class" in the
job description states that the "[w]ork requires the exercise of judgment in the application of
prescribed procedures and regulations . . ." and that the work "allows limited independence
Grievant's testimony indicates that she performs most, but not all of the duties listed
Administrative Secretary job description. Grievant also testified that she "regularly"
independent judgment, including responding independently to routine correspondence, and
is often left alone in the office, particularly during the busiest times in the summer season, to
decisions and answer questions from the public. Zoning Administrator Miller corroborated
level of independence and testified that she acts on his behalf on numerous occasions when
absent. Further, Miller described Grievant's involvement in a new 911 rural address
program as "basically creating the system" and that she uses independent thought while on
system. Former Zoning Program Assistant Hass confirmed that Grievant was "frequently"
herself and that Grievant was given the responsibility of handling the office in Miller's
Moreover, the evidence shows that the Grievant's position changed since her date of
a Clerical Assistant. According to the testimony of Deborah Rauchel, the person who
Grievant's position from September, 1994 to November, 1996, and immediately prior to
the Zoning Department's Clerical Assistant position had primarily consisted of filing
some additional duties of typing, answering telephone calls, taking applications, and dealing
public. When Rauchel occupied the position, however, she did not relieve the Department's
Administrator of any administrative details nor did Rauchel independently respond to routine
correspondence. In addition, Rauchel was very seldom left alone in the office. According to
testimony of Hass, and the person who ultimately decided to hire Grievant, Grievant was told
time of hire that her duties consisted of filing, typing, answering telephone calls, and
to other people. Grievant was not told that she would be working independently. When
compare the two job descriptions, Hass testified that Grievant's initial duties were similar to
as listed under Clerical Assistant as opposed to the Administrative Secretary. However, and
following the time that the office was restructured in 1997, Hass testified that Grievant's
became those listed on the Administrative Secretary job description. Miller's letter dated
22, 1997, confirms this. Miller described the changes as "the shake up in the department
Grievant] was asked to take on an inordinate amount of responsibility. What impresses me is
[Grievant's] ability to work independently."
Further, and since about the time that the instant grievance was filed, the evidence
Grievant has continued to exercise and perform the above-described distinguishing
an Administrative Secretary. In Grievant's memorandum to Miller dated May 12, 1999, she
that "the position is self-directed . . . with [a] considerable amount of independent decision
and that "one third of the time I am the only staff in the office." In Miller's letter to Mulder
May 21, 1999, Miller states that Grievant "deal[s] with the public on a regular basis and
contacts do involve the exercise of independent thinking and working independently . . ."
I conclude, based upon the above evidence, that Grievant's duties and responsibilities
of an Administrative Secretary. I disagree with the County that the testimony of witnesses
be minimized or ignored because it is the opinion of other bargaining unit members who may
a vested interest in the outcome of this proceeding. While the testimony arguably may have
opinion interwoven throughout, it is still sworn testimony and evidence. Further, the County
presented no evidence contradicting the veracity of the Union's evidence.
I also disagree with the County placing any significance on the instant grievance
Grievant's third request for a reclassification. I find no meaningful relevance to this fact and
as the County asserts, characterize the Union's actions in this regard as arbitrary or
is testimony that Grievant dropped the first request and a grievance because her supervisor,
suggested that she wait until a later time. The second request was rescinded at about the
Grievant was gathering comparable wage data. The third request included a presentation of
to the Personnel Committee. Given these unrefuted facts, I can find no evidence of bad
Therefore, the Union's decision to now arbitrate the dispute is more a function of timing and
wanting to make the best possible argument through supporting data than it is an indicator of
the Union believes to be the merits of its position.
Turning to the Personnel Committee's consideration of Grievant's request for a
reclassification, the Union has persuaded the undersigned that Grievant's work is that of an
Administrative Secretary. The County, however, has not shown that it reasonably considered
denied Grievant's request to be reclassified as an Administrative Secretary, i.e., in good faith
their decision was not arbitrary, discriminatory, or capricious. There was no testimony by
members of the Personnel Committee nor an explanation for their absence. There also was
evidence presented by the County as to the reason why the Personnel Committee denied
reclassification request. There was no evidence indicating what the Personnel Committee did
it deliberated and considered Grievant's request. I cannot presume that the decision, in and
was reasonable or an act of good faith. Nor can I presume that their decision was not
discriminatory or capricious. This is particularly true where the evidence is that the
is that of an Administrative Secretary. Therefore, I find in favor of the Union on the
that the County violated the Agreement by refusing to pay Grievant the Administrative
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is sustained and the County is directed to immediately make Grievant
for lost wages and benefits equal to that of an Administrative Secretary since June 15, 1999.
Dated at Eau Claire, Wisconsin, this 30th day of May, 2000.
Stephen G. Bohrer, Arbitrator
GENERAL STATEMENT OF DUTIES: Performs a
wide variety of clerical and typing
DISTINGUISHING FEATURES OF
THE CLASS: Employees in this class perform varied
clerical work requiring the knowledge of functions and procedures related to their assigned
department. Work requires the exercise of judgment in the application of prescribed
regulations. Although the specific duties of employees allocated to this class vary, they are
same level of difficulty. Work in this class allows limited independence of action and
requires a high
degree of accuracy. Employees in this class may be deputized to make legal actions effective
office to which assigned.
EXAMPLES OF WORK:
Types letters, memos, reports, forms,
hearing notices, petitions and client case reports from copy
Sets up and assembles folders for all new
cases, clients, complaints, etc.;
Files correspondence, memoranda, reports
vital statistics and forms alphabetically, numerically
or according to other predetermined classifications;
Keeps various meeting minutes and
maintains routine accounts;
Receives and processes incoming and
Works at counter and provides information
and assistance to public;
Prepares and indexes documents for
recording and microfilming;
Receipts, dockets and disburses alimony and
Prepares case and assignment dockets;
Functions as a Courtroom Clerk,
administering oaths, keeping minutes and taking charge of
exhibits as required;
Checks documents for accuracy and
completeness before processing;
Operates copier, calculator, microfilmer,
and other office machines;
Answers telephone, takes messages, greets
visitors, gives out information, and refers callers as
Collects, receipts and deposits fees for
Duplicates and collates various materials;
Compiles a wide variety of data for
quarterly, monthly and yearly reports;
Maintains a wide variety of fiscal and
clerical records and prepares reports as necessary;
Does related work as
-- Knowledge of the functions,
terminology and equipment of the assigned department;
-- Knowledge of business
arithmetic and English;
-- Skill in the operation of a
typewriter and other office equipment;
-- Ability to understand and
follow oral and written instructions;
-- Ability to keep accurate
clerical records and files;
-- Ability to plan and organize
-- Ability to maintain
confidentiality of information;
-- Ability to maintain clerical
records and prepare reports.
EXPERIENCE: Graduation from high school including completion of a
typing course, and prior clerical experience involving typing and filing duties; or any
training and experience which provides the required knowledge, skills and abilities
GENERAL STATEMENT OF DUTIES: Performs
difficult secretarial, record-keeping,
program support and clerical duties.
DISTINGUISHING FEATURES OF
THE CLASS: This is a broad class involving the
performance of varied secretarial and administrative tasks relating to an assigned department.
Employees in this class are called upon to handle correspondence, prepare records, perform
duties, type, file and operate a variety of office equipment. The work requires the exercising
independent judgment in the application of other procedures and regulations. This
differs from that of Clerical Assistant primarily in relieving a supervisor of administrative
including responding independently to routine correspondence. Directed supervision is
the department head or other professional staff.
EXAMPLES OF WORK:
Transcribes and types letters, memos,
reports, legal documents, and related material from clear
copy, rough draft, or dictation;
Sorts, indexes and files records and
materials relevant to assigned department;
Answers and screens calls, furnishes
information and keeps appointment calendar;
Composes routine replies to general
inquiries and correspondence;
Compiles data and information to assist in
the completion of reports, special studies and various
Prepares a variety of weekly and monthly
Prepares billings, posts to proper ledgers,
tabulates vouchers and gathers annual cost statistics;
Sets up and assembles folders for all new
cases, clients, complaints, etc.;
Interviews and assists clients and their
dependents with applications for benefits;
Records financial transactions in the proper
records of accounts;
Provides secretarial support to committees,
typing and mailing notices, agendas, minutes,
preparing vouchers for approval and keeping files;
Operates copier, calculator, computer
terminal and other office machines;
Orders office supplies and program
Collects and deposits fees for licenses,
permits and departmental services;
Keeps appraised of the various laws,
regulations, policies and program procedures relating to the
department to which assigned;
Receives payments, issues receipts and
maintains related records;
Works at counter and assists preparing forms and applications and
Does related work as required.
-- Knowledge of office
practices and procedures, terminology and equipment;
-- Knowledge of the rules,
regulations, policies and program procedures of the department of
-- Knowledge of business
math, bookkeeping practices and English;
-- Typing, dictation and
-- Ability to compile, analyze,
record and assemble data and information in a meaningful and
1. Receptionist answers the telephone
2. Waits on people at the counter
helping them fill out applications, answering questions
regarding Zoning Ordinance issues
3. Collects and receipts incoming fees
for Land Use applications, Sanitary applications, Soil
Tests, and any other fees that are received by the Zoning Office.
4. Performs a preliminary review of
applications for completeness and accuracy (i.e. setbacks
met, property in applicants name, applications signed, tax parcel number is correct, etc.)
5. Independently writes and mails
letters to applicants informing them of additional information
needed to complete application.
6. Writes Land Use cards and
Sanitary cards, assigns permit number, logs in the permit book, fills
in the issued date
7. Keys all Sanitary permits into the
Marathon program, keys pumping information into the
8. Responds to requests for new
applications, copies of the Zoning Ordinance and Codes, copies
of requested Land Use and Sanitary permits issued from prior years
9. Files issued permits.
10. Logs all permits into the Tax
11. Sets appointments
sanitary inspections, onsite visits(for (sic) the Technicians and the
12. Takes complaints.
13. Makes copies and mails out
permits that have been issued.
14. Updates the Wisconsin
Administration Code Book.
15. Updates the Code of Ordinance Book.
16. Makes sure there are Land Use
applications on hand, makes "Buyers & Builders Guidelines"
booklets, makes sure that any other fliers, information, or applications are on hand.
17. Provides zoning information on
parcels of land that are called in by Realtors and builders.
18. Provides the public with
information about Zoning relative to permitted uses and prohibited
activities that apply to parcels for which they are interested.
19. Coordinates the 911/Rural
Address numbers. Log all incoming applica-tions, send assigned
number applications to the respectful agency in need of the number (i.e. fire departments,
department, EMS, Tax Description, Emergency Management, etc.), etc.