BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RACINE
LOCAL 2239, AFSCME, AFL-CIO
and KELLY FELLION
Mr. John P. Maglio, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of Local 2239, AFSCME, AFL-CIO and Kelly Fellion.
Attorney Guadalupe G. Villarreal, Deputy City
Attorney, City of Racine, City Hall,
730 Washington Avenue, Racine, Wisconsin 53403 on behalf of the City of Racine.
On August 23, 1999, Local 2239, AFSCME, AFL-CIO and the City of Racine
requested that the Wisconsin Employment Relations Commission appoint William C.
member of its staff, to hear and decide a grievance pending between the parties. Hearing on
matter was conducted on December 8, 1999, in Racine, Wisconsin. A transcript of the
was made and distributed by January 4, 2000. Post-hearing briefs were submitted and
March 6, 2000.
The parties stipulated that the matter is properly before the Arbitrator and to the
statement of the issue:
Did the Grievant meet the minimum qualifications for the vacant
position of public safety
technician? If she did, what is the appropriate remedy?
The City possesses the sole right to operate City government and
all management rights repose
in it, but such rights must be exercised consistently with the other provisions of this contract
past practices in the departments covered by the terms of this Agreement unless such past
are modified by this Agreement, or by the City under rights conferred upon it by this
the work rules established by the City of Racine. These rights which are normally exercised
various department heads include, but are not limited to the following:
. . .
2. To hire, promote, transfer, assign and
retain employees in positions with the City and
to suspend, demote, discharge, or take other disciplinary action against employees for
. . .
8. To determine the methods, means and
personnel by which such operations are to be
. . .
. . .
I. Arbitration Hearing: The Arbitrator shall
use his/her best efforts to mediate the
grievance before the final arbitration hearing. The parties shall agree in advance upon
be used at the hearing and the hearing shall follow a quasi-judicial format. The Arbitrator
shall meet with the parties as soon as a mutually agreeable date can be set to review the
and hear testimony relating to the grievance.
Upon completion of this review and hearing, the
Arbitrator shall render a written decision as soon as possible to both the City and the Union,
shall be final and binding upon both parties.
. . .
K. 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 interpretation of the contract
where the alleged breach occurred. The Arbitrator shall not modify, add to or delete from
terms of the Agreement.
. . .
. . .
B. Recognition of Principle: The Employer
recognizes the principle of seniority and the
Union recognizes the need for maintaining an efficient work force. In all matters involving
or decrease of forces, layoffs, or promotions, the length of continuous service with the
be given primary consideration. Skill, ability and efficiency shall be taken into consideration
where they substantially outweigh considerations of length of service, or where the most
employee is unable to do the work. To prove qualified, the employee must demonstrate
ability to do
the job within thirty (30) calendar days. An employee shall not receive seniority benefits
becomes a regular full-time employee.
. . .
A. Posting Procedure:
Any job vacancy which occurs due to retirement, quit, death, new
position or for whatever reason in the bargaining unit shall be posted.
The posting shall set forth the job title, duties and
desired, rate of pay, work
location or assignment and shift. Sufficient space shall be provided for employees to sign
said job posting.
All job openings within the province of
bargaining unit shall be posted for five (5) working
days in overlapping consecutive weeks. The successful bidder or the Union shall be notified
five (5) work days after the close of the posting.
The City agrees to move the successful
bidder to his/her new position as quickly as possible
but in no event later than thirty (30) calendar days after notification of his/her selection.
The job posting for any classification shall
remain in effect for ninety (90) days following the
award of the posted job and shall govern, without any reposting, any job openings occurring
said ninety (90) day period in that job classification.
B. In accordance with Article XII,
Seniority, total bargaining unit seniority shall prevail
in all job postings except for shift changes which will be based upon classification seniority.
changes shall not be subject to Sections C and/or D below.
. . .
The Grievant, Kelly Fellion, has been employed by the City since December of 1988.
initially held the position of Record Clerk, then the position of Clerk in communications and,
started in her current position of Evidence Clerk.
In late August of 1998, Fellion indicated her interest in a posted position. At the
positions had been posted, PC Support Technician (pay classification SU-13) and Help Desk
Technician/Computer Operator (pay classification SU-9). There is some dispute as to which
Fellion expressed interest. Fellion testified she had indicated her interest in the Help Desk
position, while the City's Senior Personnel Officer, Terry Parker, testified that the City
indicate that Fellion had indicated she was interested in the PC Support Technician position.
Regardless, there is no dispute as to Fellion's withdrawing from consideration at the time of
interview, telling Parker that she did not think she was qualified for the position. Fellion did
submit a resume or any written documentation as to her qualifications at that time.
The PC Support Technician position posting listed the following "Minimum
Associate degree in Computer Science or progressive
and demonstrated aptitude
in the field of local area networks, personal computer hardware and peripherals, and office
automation software. Applied knowledge of MS-DOS, MS-WINDOWS and MICROSOFT
personal computing software highly recommended. Ability to effectively assess, isolate and
problems encountered with the functionality of placed microcomputer hardware and related
equipment desirable. Ability to consistently follow oral and written instructions and
Maintains a professional appearance and demeanor, and possesses excellent oral, written and
The Help Desk Technician/Computer Operator position listed
the following as "Minimum
High school graduate or equivalent. Possess a minimum of
credit hours in Computer
Science from an accredited two year or four year college, with a demonstrated aptitude in the
of personal computer software. Mainframe operations experience desired. Working
MS-DOS, MS-WINDOWS and MICROSOFT OFFICE personal computing software.
effectively assess, isolate and report problems encountered with the functionality of placed
microcomputing hardware and associated peripherals. Ability to collaborate with internal
City personnel in an efficient, effective and professional manner. Ability to type 40 wpm
operate various office equipment. Ability to work on a variety of projects concurrently.
oral, written and interpersonal communications skills required. Ability to consistently follow
instructions and written procedures. Maintains a professional appearance and demeanor, and
acceptable attendance record.
Fellion testified that she withdrew from consideration for the
Help Desk Technician position because
she did not have 24 credits in Computer Science at the time.
In 1998 the City's Police Department received a federal grant with regard to the Law
Enforcement Automation Project (LEAP) to enable agencies to share information through
technology. Captain Cooper, head of the Police Department's Administrative Division, was
in applying for the grant and in creating a county-wide computer system to connect the fire
departments throughout Racine County. There was to be a common computer system
same software in order to create a common database. Captain Cooper, along with MIS
the County and the City, developed the specifications for the new system. The decision was
that an in-house person was needed in the Police Department to provide technical assistance
would be familiar with the workings of a police department. Cooper testified that due to the
with which the project was advancing, they needed someone who already possessed the
and expertise to do the job, as they did not have the time to train someone, and these
were written into the job description for a new position of Public Safety Technician.
In February of 1999, the position of Public Safety Technician (pay
classification SU-13) was
posted. The posting stated, in relevant part:
Participates in the evaluation and selection of LEAP
software and any hardware
additions/modifications pertaining to LEAP software interfacing. Participates with the City
County of Racine MIS departments in evaluating and selecting workstation hardware for use
LEAP agencies and assists those MIS departments' equipment deployment strategies for City
agencies, including the Police and Fire Department remote sites. Participates as a member
LEAP implementation team during installation and cutover phases of the project. In
selected software/hardware vendors, implements chosen LEAP solution training plans for
agencies. Acts as liaison between City LEAP agencies and the Racine City and County MIS
Departments and acts as liaison to Racine County's LEAP system administrator for
matters. Train public safety personnel to use Windows 95, Microsoft Office products and
computer network all in cooperation with the MIS Dept. Attend "train-the-trainer" classes
LEAP software (including mobile data software) and provide training for public safety
the Police & Fire Depts. (SEE PERSONNEL DEPT FOR COMPLETE
Formal post-high school education in the
field of computer-related technology, with an Associate
or Bachelor's degree preferred. Minimum 3 years in PC hardware and software solutions,
knowledge of multiple network topologies and protocols desired. Must possess integrity to
administer LEAP/MDC security information in an environment with sensitive information.
good communication skills plus teaching experience in computer-related topics, including
in teaching new users to use Windows 95 and Microsoft Office products. Must be willing to
different shifts as required for teaching shift personnel and must be able to work well in a
environment. Familiarity with basic UNIX operating system concepts a plus for MDT
Fellion signed for the Public Safety Technician position.
was one other applicant for
the position and Parker recommended the hire of the other applicant, without interviewing
Parker concluded that Fellion was not qualified for the position after looking at the positions
held with the City with regard to the requirements of three years of experience working with
computer hardware and software and experience in training others in computer programs.
also testified that Fellion's withdrawal from consideration previously with regard to the PC
position also was considered in reaching his decision, as both positions are in the same pay
classification and each require troubleshooting, knowledge of application in hardware and
and training others in understanding and applying the software. Parker noted that while both
positions listed an associate degree as "preferred", the PC Support position only required
of progressive experience and the Public Safety Technician position required a minimum of
years experience. Parker and Captain Cooper testified that the three years of experience was
due to the complexity of the work and the need to have someone who already had the
knowledge and could start working in the position without having to be trained.
Fellion testified as follows as to her experience and knowledge with regard to the
requirements for the position. At the request of Captain Cooper, Fellion attended a meeting
vendor who was creating the software for LEAP and participated in the discussion of what
needed for the software as far as handling evidence, e.g., use of bar coding to log evidence
in and out.
As a result of those discussions, it was determined whether or not certain hardware and
would be purchased. Ms. Fellion's role was largely to explain the job duties and needs.
testified that she was part of that decision-making process. Fellion considers herself to have
participated with the City and County MIS departments in that persons from those
also at the meeting with the vendor.
Fellion also testified she has had discussions with other law enforcement agencies in
County about hardware in that she discussed the use of bar coding equipment and the
software with an evidence clerk for Racine County. Fellion also had discussions about bar
with Captain Cooper. With regard to training, Fellion testified that she trained her
McWhorter, on the computer, printer and scanner and at times has helped her supervisors
in the Police Department with problems they were having using certain software programs,
Microsoft Office Products. She also trained McWhorter on Microsoft Windows 95 and
Products. Fellion has been providing such assistance for at least three years. She has talked
present supervisor, Sergeant Sharping, about different software programs and different
All training described was of an informal nature. Fellion testified that as regards acting as a
with other agencies, she has worked with other counties and has had interaction and shared
information with the Racine County District Attorney's office and the evidence clerk with the
She has had to call the County Jail to obtain information about prisoners and has also shared
information with other agencies.
With regard to her formal training, Fellion does not have an associate or bachelor's
but has taken a number of classes in computers at Gateway Technical College: Excel
Microsoft Word for Windows (2); and Microcomputer Operating Systems. The latter course
learning the fundamentals of various operating systems such as DOS and UNIX. In addition,
has attended a number of related seminars. Fellion also testified she has at least five years
in software and hardware solutions, has helped develop specifications for hardware that was
purchased, and that she has knowledge of multiple network topologies, due to the various
and topologies used by the City and County, through her work since she started employment
the City, and similarly that she has knowledge of different protocols.
Given her position as Evidence Clerk, Fellion also feels she possesses the requisite
and ability to use discretion with regard to administering security information. Similarly, she
possess good communication skills in her present position in communicating with the public,
co-workers and other departments. In her present position, Fellion built a database and
designed a report
format that she uses to do a monthly report on the drugs that have been seized.
Fellion prepared a resume that provided information regarding some of her
coursework and experience and intended to submit it at her interview for the Public Safety
position. Fellion's resume indicated she had 25 credits toward an Associate degree in
Specialist, with coursework in Accounting I, Microcomputer Operating Systems, Basic
Programming, Computer Concepts, Intermediate Internet, Oral, Interpersonal and
Skills. Since she was not interviewed, Fellion did not submit her resume until later in the
the grievance procedure.
Captain Cooper testified that Fellion's presence, along with other employes at the
with the vendor, was requested by him so that Fellion and others could describe the work
performed to the vendor and the vendor could show them what the software could do as
their work. Cooper also testified that he called Parker on the day applications were due for
Safety Technician position and asked about the applicants. Only two people had applied,
an employe in the City's MIS department, Julie Edwardson. Cooper asked who was the
qualified of the two and was told Edwardson was the most qualified. Cooper also asked if
the minimum qualifications and was told that Fellion did not, but Edwardson did. Cooper
he did not ask further about Fellion's qualifications; however, he does know Fellion, and is
with the work of her Evidence Clerk position. Parker did tell Cooper of Edwardson's
which Parker learned from Edwardson's resume. Those qualifications include a bachelor's
in Management and Communications and an associate's degree in Applied Science and
Management, 21 years with a company where she started as a keypunch operator/data entry
spent 14 years as the lead mainframe computer operator during which she scheduled and
computer processing, trained operators and assisted programming staff in implementing new
processes; staff accountant for little more than a year and as a customer support specialist for
years while working on her bachelor's degree. From 1997 to 1998 Edwardson was
Coordinator in another company's information technology department and for one and
had been employed in the City's MIS department as a computer operator and PC Support
When Fellion was not awarded the Public Safety Technician position, a grievance
filed. The parties atttempted to resolve their dispute through the grievance procedure, but
unable to do so and proceeded to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Union offers several reasons why the Grievant should have been awarded the
Safety Technician position. She was the senior bidder and the Agreement recognizes the
of seniority in the selection process (Article XII, Section B, Article XIII, Section B). The
notes that the position in question requires an individual who would participate in the new
Enforcement Automation Project (LEAP), and that both the program and the position are
Union asserts that the Grievant, Kelly Fellion, reviewed the essential duties of the posted
gave detailed responses with regard to those functions. Fellion testified that she had
the selection of software and hardware, had met with various vendors when equipment was
and was asked to attend the meetings with the vendors by her supervisor's supervisor,
Cooper. She testified that her current duties include interfacing with the City and County
departments, which is identified as an
essential duty of the new position. She testified that she had trained co-workers, albeit
One of those co-workers, Tammie McWhorter, testified that Fellion had been able to explain
workings of new software programs after the school she was sent to by the City failed to do
Fellion also testified that she is proficient in the use of Microsoft Windows 95 and Microsoft
Products and she indicated a willingness to attend "train-the-trainer" classes involving the
software program. Specifically, with regard to the minimum requirements for the position,
testified that she is a high school graduate, but does not have an Associate or a Bachelor's
While either is listed as a preference, it is not a requirement of the position. With regard to
necessary experience for the position, Fellion proffered a copy of her resume. She expected
interview for the position and intended to supply the City with a resume at the time,
however, she was
never given an interview, nor was any kind of objective test administered to explore her
Fellion testified as to her post-high school education in the area of computer-related
transcript from Gateway Technical College indicates five computer-related courses she had
completed: Excel Spreadsheets, Microsoft Word for Windows (two separate courses),
Microcomputer Operations. Those courses were completed before the posting of this
the record indicates the City was aware of the courses and in some cases had paid for them.
Microcomputer Operating Systems course included the operation of a UNIX system, one of
minimum requirements for the position. Fellion also revealed that she had graduated with a
processing certificate from MBPI, as well as possessing a certificate of graduation from a
WordPerfect seminar, all of which the City was aware.
The record also indicates that the Racine County District Attorney's office authorized
to purchase computer equipment with monies held by the City from old drug cases after
letter authored by Fellion. Fellion was involved in the selection process of the hardware and
that was eventually purchased.
With regard to a minimum of three years computer experience, Fellion testified that
had at least five years of software and hardware solutions based on computer classes she had
and work she had performed in the Department for a number of years, as well as the
has given co-workers. Fellion helped to develop specifications for various equipment and
involved in the purchase of computer hardware. She gave examples of her knowledge of
network topologies, as well as computer protocols. Fellion testified that this knowledge
total length of employment with the City. With regard to other minimum requirements,
testified that her position in the Department requires integrity, such as is necessary to
LEAP program, and she articulated her oral and written communication skills.
The Union concludes that Fellion met the minimum requirements of the job, but
how the City would know that, since they never interviewed her for the position. In order to
its inaction, the City argued that Fellion had previously disqualified herself from
other positions in the past. However, there is a dispute over which position she had
withdrawn from, i.e., PC Support Technician or Help Desk Technician/Computer Operator.
Regardless, the minimum qualifications for those positions differ from the minimum
the position in dispute. While Fellion conceded she did not meet the minimum requirements
PC Support Technician position at the time it was posted, she did not then know MS-DOS,
offered proof that she had subsequently obtained the proper knowledge by the time this
posted. Further, MS-DOS is not a requirement of the disputed position and is irrelevant.
the Help Desk Technician position required 24 credit hours in Computer Science, and while
testified she did not meet that requirement and withdrew from consideration for the position
reason, that requirement is not present in the Public Safety Technician position and,
therefore, is also
Further, by her own choice, Fellion never interviewed for either of the two
positions. Since Fellion was not interviewed for any of the three computer-related jobs, the
questions how the City could pretend to know her qualifications. The two management
involved in the hiring process for the Public Safety Technician position were Parker and
Cooper. Parker admitted he did not have complete knowledge of the job and both he and
admitted that the decision was made to hire the other individual without having interviewed
the job. Cooper admitted he had not even seen her resume. The decision to hire the other
was made without giving Fellion the opportunity to articulate her qualifications.
The Union concludes that Fellion met the minimum qualifications of the job, although
never given an opportunity to demonstrate such. Thus, the City violated the Agreement
when it failed
to award the Public Safety Technician position to Fellion. As a remedy, the Union requests
Fellion be awarded the position, and be made whole for any lost wages and benefits
retroactive to the
day the position was filled.
The City notes that Fellion holds the position of Evidence Clerk and that the main
that position are receiving, maintaining and giving out evidence maintained by the Police
With regard to the LEAP project, the City notes that it received a federal grant to implement
project in 1997, and the project involved getting various law enforcement agencies and fire
departments in Racine County to share information through a common computer system and
program. The specifications for the project were developed by Captain Cooper, the Racine
MIS Director, and the City's MIS Director.
After funding for the project was obtained, it moved quickly into the implementation
stage and the
City was faced with the need to create a new position in the Police Department of Public
Technician. The job description for the position was developed by Captain Cooper and
Parker in late
1998, with the complex and expensive nature of the LEAP project in mind. The position
was written with the primary concern and criteria that the individual filling the position
the experience and expertise necessary to start the job without any on-the-job training, as it
necessary that the person selected possess the experience and expertise from the very
there was no one on board to train that individual.
The City notes that there are several positions that are geared to computer-trained
beginning with positions requiring minimal knowledge (e.g. Help Desk Technician) and those
requiring someone who is highly knowledgeable and experienced (e.g. PC Support
Public Safety Technician). The City asserts that in the Fall of 1998, Fellion applied for, and
interviewed by Parker for, the PC Support Technician position, however, she did not provide
resume at the time, nor did she provide one when she signed for the present position. When
Grievant appeared for the PC Support Technician interview, she apologized for wasting their
and stated that she was not qualified for the job. The County asserts that the qualifications
Public Safety Technician position and those for the PC Support Technician position are very
as is reflected by the job descriptions and their same pay grade of SU-13.
The City asserts that Fellion did not meet or possess the minimum qualifications for
Safety Technician position. The position requires a minimum of three years' experience in
software and hardware solutions and this means more than working as an Evidence Clerk and
answering questions from co-workers about the computer. Fellion herself recognized she did
have the minimum qualifications for the PC Support Technician position when she removed
from consideration and that position is very similar to this position with regard to level of
expertise, experience and qualifications required. Further, Fellion has never held any
computer-related position that would have given her the experience she needed for this
position. It is
undisputed that the Public Safety Technician and the PC Support Technician positions are at
highest level of expertise and experience in the City's computer-related positions, as
their SU-13 pay classification, and each similarly require experience and extensive
computer software and hardware applications. The City asserts that the progression and the
experience and knowledge required from the Help Desk Technician position to the Public
Technician position is evidenced by the corresponding increase in the hourly rate of pay.
Fellion's resume is devoid of any experience necessary for the position as described
Captain Cooper and Parker. Further, the resume was never submitted for consideration for
prior position or this position. The City also asserts that the successful candidate had all of
required experience and technical expertise required in the job description. The City
asserts it is not possible to obtain the computer-based experience and training capability
simply as a by-product of performing work that merely uses a computer as a record-keeping
as a word processor. Further, Fellion failed to produce any evidence of prior experience in
developing or evaluating specifications for the LEAP software and hardware. While she sat
in on the
vendor presentations, as did McWhorter, they were invited along with other Department
to discuss the specifics of their duties. They were given the opportunity to offer information
vendor on what an evidence custodian's functions were, and how a bar coding system would
helpful in recording evidence.
The City concludes that the Union failed to show how Fellion could gain the required
experience when her job as Evidence Clerk did not provide the necessary experience and
training of other individuals or even involve the computer as the center of her
responsibilities. It is
the City's position that the skill and ability factor should be taken into consideration because
substantially outweigh considerations of length of service, since Fellion does not possess the
training or job experience. The City therefore requests that the grievance be denied.
The parties have stipulated that the primary issue in this case is whether or not the
Kelly Fellion, met the minimum qualifications for the position of Public Safety Technician.
following reasons, it is concluded that she did not.
The Grievant asserts that she has experience training others on computers, that she
involved in designing the specifications for computer hardware and software to be purchased,
acted as a liaison with other agencies and has successfully completed computer-related
including 25 credits toward a Network Specialist degree.
With regard to the Grievant's experience training others, the record indicates that for
part this involved her helping co-workers or her supervisor with questions they had, such as
perform an operation with the software or how to bring up a form to be used. While
assistance to co-workers is a valuable asset to an employer, it is the sort of thing that occurs
in most offices where one individual is more adept at utilizing the software or hardware, and
tantamount to having the experience and responsibility of training groups or individual
the operations of the software or hardware.
As to Fellion's involvement in developing specifications for computer hardware and
it appears from the record that she had some involvement in selecting the amount of memory
computer and the type of printer and scanner they wanted in her area, and that the request
submitted. She was also asked by Captain Cooper, as were McWhorter
and other employes of the Police Department's Administrative Division, to attend a
meeting with a
vendor. The testimony of both Fellion and Cooper was that she attended the meeting, as did
other employes, so that she could explain to the vendor what her job functions are so that it
determined what the software would need to be able to do in order for the work to be
more efficiently. Fellion conceded she was not involved in the decisions as to what software
hardware would be purchased (Tr. 37-38). Fellion's testimony with regard to her experience
a liaison, was that she at times contacted her counterpart at the County or persons in the
Attorney's office or the Jail to obtain or share information.
While Fellion has completed some formal post-high school courses in the field of
computer-related technology, she had not yet obtained a degree, albeit a degree was
preferred, rather than
required. However, although Fellion testified she had five years of experience in PC
software solutions, her testimony in support of that claim only referenced the
courses she has taken and her having "worked on computers" since before she started in the
Department. Similarly, other than stating that she has knowledge of "multiple network
and identifying the networks and topologies the City and County use, Fellion offered no
evidence of her experience or knowledge beyond what she had already provided with regard
having assisted co-workers with problems they were having on their computers and the
coursework she had completed.
Simply put, Fellion's knowledge and experience with regard to computers, although
to the City and her co-workers, does not meet the requirements for the Public Safety
position that would enable her to carry out that position's essential duties. Therefore, it is
that the Grievant did not meet the minimum qualifications of the position.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 14th day of September, 2000.