BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL UNION 1241, WISCONSIN COUNCIL
CHIPPEWA FALLS AREA SCHOOL
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney James M. Ward,
appearing on behalf of the District.
Local 1241, Wisconsin Council 40, AFSCME, AFL-CIO, hereinafter referred to as
and Chippewa Falls Area School District, hereinafter referred to as the District, are parties
collective bargaining agreement which provides for the final and binding arbitration of
thereunder. The Union made a request, with the concurrence of the District, that the
Employment Relations Commission designate a member of its staff to act as an arbitrator to
decide a grievance over the meaning and application of the terms of the parties' agreement.
undersigned was so designated. Hearing was held on May 16, 2000 in Chippewa Falls,
The hearing was not transcribed and the parties filed post-hearing briefs which were
July 7, 2000. The parties reserved the right to file reply briefs but neither did and the record
closed on July 17, 2000.
In the summer of 1997, the District created the position of Staff Training Assistant
a half-time school year position starting August 25, 1997. (Ex-3) Michelle Alix was hired
to fill the
position. The anticipated tasks were to assist with purchasing for the
technology portion of the referendum and assist in teacher training lab (handout
configuring lab, etc.) (Ex-3) Alix had no NT Administration experience. Alix reported to
Hadlock, the Director of Educational Technology. Over time the position increased in hours
as NT experience which Alix learned from the Systems Engineer and seminars. (Ex-12) In
1998-1999, the position expanded to five hours a day and in 1999-2000 went to full-time.
The number of
users of the NT Administration operating system went from 40 in 1997 to 5,000 in 2000.
position's title was changed to Software Support and Technology Secretary. In 1998, the
sought to accrete this position into the bargaining unit. (Ex-10) The District would not agree
voluntary recognition and noted that the position demanded a high level of computer
technological trouble shooting skills. (Ex-22)
On July 15, 1999, the Union filed a petition to clarify the bargaining unit to include
position held by Alix. (Ex-21) The District unsuccessfully sought to exempt the position
contractual posting requirement. On November 10, 1999 the parties reached an agreement
unit clarification petition with the Software Support and Technology Secretary being accreted
summer or fall of 2000 and the position posted two weeks before the end of the 1999/00
(Ex-4) In November or December, 1999 Alix informed the District that she was leaving for
job. The District asked the Union to move the posting up and the position was posted on
9, 1999. The posting was as follows:
NOTICE OF VACANCY
December 9, 1999
DEADLINE: December 15, 1999
SOFTWARE SUPPORT AND
position (7:30 a.m.-4:00 p.m.)
CONTRACT: Beginning immediately.
As per Master Contract
Secretary III rate)
EMPLOYEE: Michelle Alix (VACANCY
Experience with NT Administration.
Experience in HTML and desktop
Sufficient experience with Microsoft Office and FileMaker
Experience learning software from vendor
Experience and ability maintaining
complex clerical records, preparing
reports, and scheduling.
Knowledge of English grammar, business
English and spelling.
Knowledge and competence in the use of
modern office equipment
Including MacIntosh and IBM PC
compatible computers, FAX,
Two years experience in a clerical
By the last date of posting, a letter of intent
to transfer into this position must be received by
Larry D. Annett at the Administration Building. (Ex-6)
Five bargaining unit employes posted for the position with the
grievant being the most senior. (Exs-5,
6, 7) All five were disqualified on December 16, 1999 because they lacked experience in
Administration and HTML. (Ex-8) A grievance was filed on December 21, 1999 which was
at the various steps and appealed to the instant arbitration. The District hired a Manpower
but he was not able to perform the job. (Exs-10, 19) Alix contacted the District and she was
to fill the position.
The parties stipulated to the following:
Did the District violate the collective bargaining agreement
when it refused to award the
vacant Software Support and Technology Secretary position to the grievant, Shelly Beranek?
If so, what is the appropriate remedy?
. . .
Posting. When it becomes necessary to fill a vacancy or a new
position in the school
system, the Board of Education shall bulletin such new
position or vacancy for a period of seven (7) days at
each school. Such posting shall state the
job to be filled, the hours, location, and pay for the same. The qualified applicant within the
with the longest period of service shall be assigned to the new position or vacancy.
. . .
Bargaining unit employees wherein a
vacancy exists, shall be considered first in preference
to all other employees.
. . .
5 Probationary Periods. Employees being promoted,
assigned, or bumped into a new
position shall be granted thirty (30) work days to prove their qualifications, after the
physically occupies the position. Applicants who qualify shall receive the applicable rate of
the new position retroactive to the date of change.
. . .
8 Union Positions. When new positions created by the
Board become Union positions,
whether by voluntary accretion or otherwise, such positions shall be posted.
The Union contends its main argument is that this case is not about the qualifications
grievant but rather the District's continuous attempts to keep one particular outside hire
(Alix) in the
position, so the District had to disqualify the grievant.
It asserts the District wanted Alix in the position. It observes that Alix was hired
position in 1997 when it was non-union and once it became union, the District would have to
it and Alix might not remain in the position, so the District attempted to keep it out of the
later sought to exclude it from the posting requirement. It notes that ultimately the position
included in the unit but posting was delayed until the end of the school year. It speculates
figured her days of work with the District were numbered and sought another job. It points
the District sought to post the position immediately and the Union agreed. It surmises the
wanted to post it quickly, disqualify all posters, then award it to Alix to keep her from
claims this strategy did not work immediately as Alix took another job but was soon hired
back in the
The Union argues that the District form-fit the minimum qualifications for Alix so no
Union applicants could qualify. It claims the timing of changes made in the job description
doubt about the District's intentions as the July, 1999 description did not list NT
HTML experience but after the unit clarification petition was filed, the new job description
those qualifications. It submits that when the position was posted in December 1999, NT
Administration experience and HTML experience were listed as minimum qualifications and
bargaining unit employe has that experience which was the sole basis to disqualify those who
for the position.
The Union points out that every clerical position in the bargaining unit has had a
requirement except Noon Hour Aides who perform no clerical work, yet the posting for the
Support and Technology Secretary has no typing requirement whatsoever and in July, 1999,
description listed 60 wpm and in August, 1999, 45 wpm, which is what Alix could type and
no requirement. The Union maintains this is no coincidence as Alix was awarded the job
taking a typing test.
It submits that the grievant has been a Clerk Secretary III for fourteen years and her
proficiency in computer applications and software is vast and she met the July, 1999
qualifications and as to the posting, the only qualifications she did not meet is NT
experience and HTML experience.
The Union refers to Article V, Section 5 of the contract which allows a thirty day
and the District could have put the grievant in the position and allay any doubts about her
quickly learn NT and HTML.
It states that the grievant was disqualified solely on one qualification, NT
this limited type of assessment is frowned upon by Arbitrators.
In conclusion, the Union alleges that the District has not proven that the grievant is
competent for the position, it has only proven the great lengths it will go to retain a favored
hire. It asks that the grievance be sustained, the grievant awarded the position and made
The District contends that it has the right to establish minimum qualifications for the
Support and Technology Secretary position provided the qualifications are reasonably related
job. It observes that no provision of the labor agreement can be construed as waiving the
inherent right to establish qualifications for positions. It cites arbitral support for the position
the decision as to whether or not an employe is qualified will not be upset unless it is found
unreasonable, arbitrary or capricious, discriminatory or made in bad faith. It states that
job-relatedness is the standard by which the reasonableness of any management decision to
internal applicant is to be judged.
The District claims that NT Administration experience, which is the first qualification
in the job posting and the job description, is reasonably related to the work performed by the
It maintains that the reason the position increased from a half-time to a full-time position
course of two years has been the exponential growth in that operating systems users from 40
5,000. It refers to Alix's testimony that half of her time is spent on NT Administration and
at the help desk, trouble shooting, solving user problems and maintenance of the District's
It submits that the evidence supports the primacy of NT Administration experience among the
qualifications and is clearly job-related in every sense of the term.
The District points out that the grievant has no NT Administration experience so she
justifiably disqualified from consideration for the position. The District asserts that Article
4 is a "sufficient ability" clause, i.e. the most senior gets the job provided he or she meets
minimum qualifications. The grievant lacked the minimum qualifications according to the
which checked with the grievant's supervisor and invited the grievant to come forward with
experience she may have neglected to mention initially. The District notes that the grievant
acknowledged she had no NT Administration experience. The District points out that Alix
her experience from on-the-job training and had the luxury of learning at her own pace as the
grew. It alleges that any successor must have the required NT Administration experience. It
the example of Mr. Hale who was a temporary employe who had some experience in NT
Administration and shadowed Alix for two weeks but could not perform the next two weeks
grievant with no experience would probably fare no better.
The District insists that the grievant is not entitled to a 30-day probationary period
Article V, Section 5 of the contract. It argues that the language does not give an employe a
grace period to become qualified but the period is to prove their qualifications. It contends
means that the grievant must show that she possesses the minimum qualifications and
perform satisfactorily, substantiating the qualifications so proffered. It cites arbitral authority
distinguishing between a trial and a training period as a trial period is not a training period
and it is
assumed the employe will not have to be trained in all aspects of the job and it is assumed
employer need not give training but simply familiarization with the job. It insists that the
manifestly unqualified to fill the job and is not entitled to the 30-day probationary period.
The District claims that the Union has failed to demonstrate that the District acted in
in rigging the job posting and job description as a means of assuring that Alix would be
the position. It observes that the Union cites the District's historical resistance to including
position in the bargaining unit and the District's "tampering" with the job description once
of the position in the unit appeared imminent, particularly the inclusion of the requirement of
Administration experience and the exclusion of a typing requirement. It also notes the
reference to the District's failed attempt to exempt the position from the posting requirement
would be retained. The District asserts that the
change in the July, 1999 and August, 1999 job descriptions was drafted by Mr.
Hadlock before he
knew a unit clarification petition was filed. As to the typing requirement, the District
the job over time went from clerical to technology-oriented and typing was downgraded to
the obsolescence of that requirement.
The District contends that the Union's argument loses all persuasive force because the
was accelerated due to the need to immediately fill the position when Alix announced her
another job. The District alleges that at that time a new person from inside or outside would
Alix's old job. It notes that the new person would be in the unit and with Alix leaving, why
the District bother to insist on NT Administration experience if it was not in fact necessary to
the old job. It asserts that the Union presented no evidence to indicate that NT
experience is not a bona fide qualification for the position. Also, it
points out that Mr. Hadlock's
estimate of a 3-6 month learning curve to be proficient was not contradicted by the Union's
It observes that the Union's argument is relegated to the mere proposition that the job
posting process smells fishy. The District insists that proposition will not suffice to
District's prima facie case as to the reasonableness of the qualifying
criterion of NT Administration
experience under the job-relatedness standard. It submits that the grievant was not qualified
position and the Union failed to prove that the District abused its discretion. It concludes
grievance is without merit and must be dismissed.
It is undisputed that the District could establish a new position. With technology
so quickly, it is necessary to create positions to perform the functions that new technology
It is clear from the record that the District created the position in 1997 (Ex-3) and the
been increased in time and functions performed. (Ex-5)
Article V, Section 4 provides that when a new position or vacancy is filled, the
applicant within the system with the longest period of service shall be assigned to the
grievant had the most seniority and the issue in this case is whether or not she was qualified
The Union has contended that the District "form fit" the qualifications for the
only Alix would qualify. Generally, the employer can establish the requirements or
a position provided they are reasonably related to the duties of the position. Alix testified
contradiction that 50 percent of her duties involve NT Administration. As early as
the District informed the Union that the position demands a high level of computer
technical trouble-shooting skills such that it might be classified differently than other clerical
positions. (Ex-22) The Union's claim that the District's setting of qualifications to form fit a
employe is based on nothing more concrete than implication. The undersigned would have
engage in unsupported speculation
as to the District's motives in setting qualifications. The Union has failed to provide
evidence that the District's requirements to qualify for the position were not reasonably
related to the
duties. Besides, once Alix announced she was leaving and in fact left, the District's alleged
fitting the position would make no sense.
The District has the authority to determine whether an employe is qualified for a
long as the decision regarding qualifications is not arbitrary, capricious, discriminatory or
unreasonable. Barbers Point Federal Credit Union, 84 LA 956 (Brown, 1984). In this case,
the grievant admitted she had no NT or HTML experience. Her supervisor indicated that as
he knew she had no experience using NT Administration software. (Ex-18) It is concluded
evidence failed to establish that the District's determination that the grievant was not
qualified was arbitrary, capricious, discriminatory or unreasonable.
The Union refers to Article V, Section 5 which provides thirty (30) work days to
employe's qualifications. As pointed out in the District's brief, a trial period is not a
Article V, Section 5 assumes the applicant is already qualified and the trial period allows a
applicant the opportunity to demonstrate she can successfully perform the job. An applicant
not qualified is not entitled to a trial period. Reynolds Metal Co., 66 LA 1276 (Volz, 1976).
Inasmuch as the grievant was not qualified for the position, the contract does not require the
to provide her with a trial period to establish her qualifications.
Based on the above and foregoing, the record as a whole, and the arguments of the
the undersigned issues the following
The District did not violate the collective bargaining agreement when it refused to
vacant Software Support and Technology Secretary position to the grievant, Shelly Beranek,
therefore, the grievance is denied in all respects.
Dated at Madison, Wisconsin this 17th day of August, 2000.
Lionel L. Crowley, Arbitrator