BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY (HUMAN
WISCONSIN COUNCIL 40, AFSCME, AFL-CIO, LOCAL
Mr. James E. Miller, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1712 Cedar Court, Manitowoc, Wisconsin 54220, on behalf of the
Mr. Steven J. Rollins, Corporation Counsel, Manitowoc County,
1010 South Eighth Street, Manitowoc, Wisconsin 54220, on behalf of the County.
According to the terms of the 1998-99 collective bargaining agreement between
County and Manitowoc County Human Services Department Professionals,
Local 986-A, AFSCME,
AFL-CIO (Union), the parties requested that the Wisconsin Employment Relations
designate a member of its staff to hear and resolve a dispute between them regarding the
denial of Grievant Kenneth Gayle's request to attend a social work conference in October,
Commission designated Sharon A. Gallagher to hear and resolve the dispute. The hearing
at Manitowoc, Wisconsin, on May 9, 2000. A stenographic transcript of the proceedings
and received on May 26, 2000. The parties agreed that they would file their briefs July 25,
that the Arbitrator would exchange the briefs for the parties. The parties agreed to waive the
to file reply briefs.
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the following issues shall be determined in this case:
Did the Employer violate the collective bargaining agreement,
including the last paragraph
of Article 24, when it denied the Grievant's request to attend the Midwest Conference on
Sexual Abuse and Incest in October, 1999? If so, what is the appropriate remedy?
ARTICLE 24 PROMOTION, HIRING REQUIREMENTS
. . .
Training Requirements: There
shall be no training requirements for progression on the wage
schedule. However, certain training may be required for reasons other than progression.
examples of mandated training include but are not limited to: CARF, and Juvenile Court
AODA certification for AODA counselors, and any criteria established to maintain State
certification and/or licensure. The Employer shall pay for registration, mileage, meals and
while employees are attending required training. When an employee attends training, all
training and/or travel in excess of the guaranteed normal work day shall be taken off on a
time basis within the same pay period.
RELAVANT PROVISIONS OF THE WISCONSIN
SOCIAL WORKERS, MARRIAGE & FAMILY THERAPISTS
Chapter SFC 8
SFC 8.01 Continuing education
required for certification renewal. On or before July 1 of
every odd-numbered year every social worker, advanced practice social worker, independent
worker, and independent clinical
social worker certificate holder, shall as part of his or her
application for renewal, submit proof
of having met the continuing education requirements specified in this chapter on forms
SFC 8.02 Continuing education
requirements for certificate holders. (1) Unless granted
a postponement or waiver under sub. (7), every social worker, advanced practice social
independent social worker, and independent clinical social worker certificate holder shall
at least 30 hours of continuing education in each 2-year certification period which begins on
of each odd-numbered year as specified in s. 457.20(2), Stats.
(a) The 30 hours of continuing education
shall be in courses and programs specified in this
(b) Of the 30 required hours, at least 4
hours shall be in the subject area of social work ethics.
At least 2 of the 4 hours shall be in issues concerning professional boundaries. The section
require that up to 2 continuing education hours in each 2-year certification period be acquired
other specified topic areas.
(c) In this chapter one hour of continuing
education is a period of continuing education
consisting of not less than 50 minutes.
education hours shall apply only to the certification period in which the hours are
acquired. A certificate holder who applies for renewal after the renewal dated specified in s.
457.20(2), Stats., shall submit proof to the section that he or she completed at least 30 hours
continuing education during the 2 years immediately preceding the date of application for
meet the requirements for late renewal specified in s. 440.08(3), Stats. Continuing education
submitted to satisfy this requirement for late renewal shall not be used to satisfy continuing
requirements for a subsequent renewal.
(3) Every certificate
holder shall retain original documents showing attendance at programs and
completion of self-developed programs for at least 4 years from the time that credit is
claimed for the
continuing education program under s. SFC 801. At the request of the section, certificate
shall deliver their original documents to the section.
(4) Unless granted a
postponement or waiver under sub. (7), a certificate holder who fails to
meet continuing education requirements by the renewal deadline shall cease and desist from
social worker title protected under ch. 457, Stats.
. . .
(7) A certificate
holder may apply to the section for a postponement or waiver of the
requirements of this chapter on grounds of prolonged illness or disability, or on other
constituting extreme hardship. The section shall consider each application individually on its
and the section may grant a
postponement, partial waiver or total waiver as deemed
appropriate in the circumstances.
(8) The section may
grant an exemption from the requirements of this chapter to a certificate
holder who certifies to the section that he or she has permanently retired and no longer uses
worker title protected under ch. 457, Stats. in any professional practice.
. . .
SFC 8.03 Continuing education programs.
A continuing education program may be used to
satisfy the requirements of this chapter if the subject matter of the continuing education
one or more of the following:
(1) Social work
practice, knowledge and skills.
(2) A field or
subject area allied with and relevant to the practice of social work.
(3) Theories and
concepts of human behavior and the social environment.
(4) Social work
research, social policy and program evaluation, or social work practice
(5) Social policy
and program administration or management.
(6) Social work
(8) A subject of
current importance as designed by the section.
. . .
The Grievant, Kenneth Gayle, has been employed by the County as a Clinical Social
for approximately the past ten years. The majority of clients that he works with are referred
from the Department of Corrections or the court system. These clients have been accused of
committing crimes involving sexual abuse and incest. Gayle also provides crisis intervention
for the County for clients who have either been brought to a hospital emergency room or
referred by the Police Department. Gayle has a Bachelor of Science degree and a Masters of
degree. Gayle's duties include providing clinical assessment and treatment recommendations
people convicted of committing sexual offenses, facilitating pre-sentence investigations and
the client's potential for re-offense and amenability to treatment. In providing these services,
has testified as an expert in court. Gayle also provides group therapy to his clients through
Department of Corrections Probation and Parole. Gayle also provides on-call services at a
hospital. In Gayle's position, he is required to maintain a license or certification as a clinical
independent social worker under the State Administrative Code.
Prior to July, 1999, social workers in the State of Wisconsin had to be able to prove
had been adequately trained in order to maintain their license/certification. After
July 1, 1999, the
State of Wisconsin by its Administrative Code required all social workers to obtain 30 hours
continuing education including education regarding professional boundaries and ethics every
years in order to maintain their license/certification. 1/
1/ Although the Union witnesses argued that
continuing education credits must be obtained in the social
worker's particular field or their specific area of practice, it does not appear that the
Wisconsin Administrative Code
requires this in so many words.
On August 9, 1999, Gayle submitted a "request for continuing education
the 15th Annual Midwest Conference on Child Sexual Abuse and Incest 2/
in Middleton, Wisconsin,
a four-day continuing education conference for which he would have received 20 CEU's.
requested reimbursement for meals, mileage, lodging and four days of pay. Gayle also
reimbursement for the registration fee of $345. The form submitted by Gayle was a form
been used in the Department for many years to request reimbursement for attending
education courses. In the past, no employe has ever received reimbursement for a continuing
education course if the employe failed to submit a request form and get approval therefor.
2/ In 1990-94, Gayle attended this same
conference at County expense. In 1998, Gayle received a partial grant
to attend this conference from the District Attorney's office and the County picked up the
rest of the cost of his
Sometime after submitting this form, Gayle's supervisor told him that no one had
authorized to attend the conference and that his request had been denied. Gayle did not
conference after the County denied him reimbursement therefor. On October 25, 1999,
Steward Michael Kelley filed the instant grievance.
It is undisputed that the County did not require Gayle to attend the conference he
reimbursement for in October, 1999. It is also undisputed that other training would have met
State's requirement that Gayle receive 30 CEU's prior to July 1, 2001. The State of
neither recommends nor pre-approves courses nor does it require any particular courses
four hours in boundaries and ethics required in the Administrative Code.
It is also undisputed that the training which Gayle requested would have benefited
employes of the County's Human Services Department, and that the County denied Gayle's
request because of the expense of the conference, not the conference's content. In
the Department had approximately $2,500 of the $5,000 training budget left in its account for
worker training. In both the answer to the grievance and in testimony, the County affirmed
will provide 30 CEU's to each of its licensed/certified social workers as required by the
Administrative Code at no cost to the employes prior to July 1, 2001.
POSITIONS OF THE PARTIES
The County asserted that it did not violate the contract in this case because the
was neither required by the County nor the State of Wisconsin. In this regard, the County
the Union's argument that the training which the Grievant requested was somehow required
by the testimony of the various witnesses as well as the Administrative Code itself and
correspondence from the State Department of Regulation and Licensing. It was significant in
County's view that the Department of Regulation and Licensing never pre-approves or
any courses for continuing education. Therefore, the County had no obligation to pay for the
which the Grievant selected and which the County refused to approve. Here, the County
training because it was too expensive. The County noted that it has also given the Union and
Grievant assurances that all employes needing certification/licensing will receive the
at the County's expense in a timely fashion. For all these reasons, the County urged that the
grievance be denied and dismissed in its entirety.
The Union noted that it filed the grievance because the State had changed its
regarding continuing education training for Social Workers, mandating 30 credit hours every
years. Here, the Grievant stated that he worked between 70 and 80% of his time with sexual
offenders in the child abuse area and that the remaining portion of his duties concerns crisis
intervention. Therefore, the conference he requested to attend was directly related to his
on behalf of the County. The Union observed that the County has paid for this conference in
having found it appropriate training for the Grievant.
Article 24 of the collective bargaining agreement states that the employer shall pay
training, inter alia, relating to "any criteria to maintain State
required certification and/or licensure."
As the revised Administrative Code places the responsibility on the individual social worker
the courses necessary to meet the 30 credit requirement, "mandated training" must be
mean that employe selected courses become required or mandated if they are necessary to
certification and/or licensure. Thus, the Union urged that the County should have paid for
Grievant's requested course. In these
circumstances, the Union asked that the grievance be sustained and that the Arbitrator
find a violation
of the collective bargaining agreement. 3/
3/ The Union failed to
request any further remedy.
Article 24 speaks of "required" training but fails to state who may require such
Although Article 24 also gives examples of "mandated training" which includes "any criteria
established to maintain State required certification and/or licensure," it fails to state who may
such criteria. In any event, the parties submitted only one item which could constitute
used in Article 24, the State Administrative Code sections. However, those sections fail to
or mandate specific courses. 4/
4/ The phrase "any
criteria . . ." only has meaning in reference to the other specific examples of "mandated
training" listed in this portion of Article 24. It is undisputed that Gayle's duties did not
include CARF, Juvenile
Intake or AODA Counseling.
In the silence of the collective bargaining agreement, the Union has argued that
newly created State Administrative Code requires 30 hours of continuing education for social
and leaves to each social worker the choice of which courses to take, County social workers
be able to select any course they deem appropriate and the County should have to pay for the
employe's " . . . registration, mileage, meals and time spent . . ." for attendance. On the
the County has argued that the use of terms such as "required" and "mandated" in Article 24
necessarily means that the County must first find the requested courses to be required before
employes can expect to receive the payments described in Article 24.
The contract is, in my view, ambiguous on the point regarding who has the authority
require or mandate training. Given the silence of the contract, the question then arises
evidence of bargaining history or past practice exists to fill in the blanks created by the labor
agreement regarding who may require or mandate a course for social workers under Article
parties submitted no evidence of bargaining history on this point. The evidence of past
submitted herein involved the consistent use of a form to request reimbursement. There, the
showed that in the past, the County has denied employe course reimbursement requests
courses were too expensive and that the Union failed to grieve these denials. This evidence
showed that the only way employes have received reimbursement for courses in the past was
submitting a request form which was approved by the County. In my view, this evidence
support the County's arguments herein.
The Union's contention that the changes in the State Administrative Code require a
that employes must be able to select any course that meets the Code and receive
therefor, essentially ignores the fact that the State does not require or mandate any specific
except that social workers must receive four credits in social work ethics, two of which must
professional boundaries. Nor does the State recommend or pre-approve any courses,
correspondence from the State Department of Regulation and Licensing.
In the instant case, Gayle's requested course was relevant to his County work. But,
Union were to prevail in this case, theoretically, a County social worker could take any
would give him/her CEU's and which was within the broad generic outlines of relevancy
SFC 8.03 (without regard to the County's budgetary restraints) and expect to receive full
reimbursement therefor. Such a result would be economically insupportable as well as
in light of the undisputed past practice proven herein. A finding in favor of the County,
would not mean that employes will be denied the ability to attend courses they choose.
a finding would mean that employes will only be reimbursed for Article 24 expenses for
their choice when they receive approval for said reimbursement. This result would be
In addition, it is significant that both during the grievance process and at the instant
the County gave assurances that it would timely provide 30 CEU's to employes at County
during the 1999-2001 period covered by the Administrative Code. Finally, the parties
evidence to show that they were unaware that the State was about to change its CEU
for social workers prior the execution of the effective labor agreement. If the parties had
for the County to pay for any courses employes selected they could have used the word
rather than "criteria" in the third sentence of Article 24. The parties chose not to do
this. In all of
these circumstances, I find that there was no violation of Article 24 or past practice in
this case and
I issue the following
The Employer did not violate the collective bargaining agreement, including the last
of Article 24, when it denied the Grievant's request to attend the Midwest Conference on
Sexual Abuse and Incest in October, 1999. The grievance, therefore, is denied and
dismissed in its
Dated at Oshkosh, Wisconsin, this 8th day of August, 2000.
Sharon A. Gallagher