BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1667, AFSCME, AFL-CIO
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Klos, Flynn & Papenfuss, by Attorney Jerome J. Klos,
appearing on behalf of the County.
Local 1667, AFSCME, AFL-CIO, hereinafter referred to as the Union, and Vernon
hereinafter referred to as the County, are parties to a collective bargaining agreement which
for the final and binding arbitration of disputes arising thereunder. The Union made a
the concurrence of the County, that the Wisconsin Employment Relations Commission
member of its staff to act as an arbitrator to hear and decide a grievance over the meaning
application of the terms of the parties' agreement. The undersigned was so designated.
held in Viroqua, Wisconsin on June 8, 2000. The hearing was not transcribed and the
post-hearing briefs which were exchanged on November 27, 2000.
In October, 1998, the County received a deficiency citation from the State in its
program. As a result, in July, 1999, the County updated the job description for the position
Activity Aide to include one year experience in an activity department or recreational
geriatric, mentally ill or developmentally disabled persons. (Ex-7) On or about
July 31, 1999, the
County posted a vacant Activity Assistant position and the grievant posted for it. (Ex-3) The
grievant, a CNA, lacked the one year experience requirement and was not selected. None of
other posters met this requirement and the County hired an applicant form the outside who
requirement. A grievance was filed over the grievant's non-selection which was denied and
to the instant arbitration.
The parties stipulated to the following
Did the County violate the collective bargaining agreement by
not awarding the vacant
Activity Aide position to the grievant? If so, what is the appropriate remedy?
2.01 Subject to the provisions of this Contract and
law, the County possesses the
right to operate the Manor and all management rights repose in it. These rights include, but
necessarily limited to, the following:
A. To direct all operations of the
B. To establish reasonable work rules
and schedule work;
C. To hire, promote, transfer,
schedule and assign employees to positions within the Vernon
D. To suspend, demote, discharge, and
take other disciplinary action against employees for just
E. To relieve employees from their
duties because of lack of work or other justifiable economic
F. To maintain efficiency of Vernon
G. To take reasonable action necessary
to carry out the functions of the Vernon Manor in
situations of emergency;
H. To take whatever action is
necessary to comply with State or Federal law;
I. To introduce methods or facilities
which are new or exist elsewhere;
J. To change existing methods or
K. To determine the kinds and
amounts of services to be performed as pertains to Vernon Manor
operations; and the number and kinds of classifications to perform such services;
L. To contract out for goods; and
M. To determine the methods, means,
and personnel by which Vernon Manor operations
are to be conducted.
. . .
Seniority, Probation, Layoff
Rehire and Job Posting
. . .
11.09 When it becomes necessary to
vacancy or a new position, the Manor shall bulletin
such new position or vacancy for a period of ten (10) days, asking for applications, and the
employees within the Manor with the longest period of service within the department of the
where the vacancy occurs shall be assigned to the new position or vacancy. If no applicant
seniority within the department of the vacancy, then the qualified employee within the Manor
the longest period of service shall be assigned to the new position or vacancy.
11.10 All new or vacated job positions
shall be posted for the minimum of ten (10) days
preceding the selection of the employee to fill the new or vacated job position. The rule of
11.09 above shall be the factor in the selection of the applicant for the new or vacated job
The notice shall include the rate of pay, shift and work area and the duties of the position.
position shall be filled on the 12th day following the original date of
posting. The successful applicant
shall be allowed forty-five (45) days to qualify or to return to employees former position, if
dissatisfied. Interim appointment to the new or vacated position may be made by the
The Union observes that the County posted a vacancy for an Activity Assistant on
1999 and four employees posted for it including the grievant, who had the most seniority. It
that none of the applicants were selected but an outside employee was hired.
It states that the County has traditionally hired CNA's from the Manor to fill Activity
It refers to Section 11.09 of the agreement which provides the senior qualified employee gets
vacancy. It submits that the grievant has the greatest seniority and was not awarded the
the County has the burden to show that the grievant was not qualified. It points to the
the Manor's Administrator who testified that the job description was changed to require one
experience working in an activity department or recreational capacity with geriatric, mentally
developmentally disabled persons. It asserts that the person hired allegedly had a year of
with activities in a group home but the Administrator did not know the person's education or
background or what her duties were at this group home. It submits that the Administrator
that this person was hired because the Activity Department had received deficiencies from a
survey but claims these were in the area of activity programming which was the
responsibility of the
Activity Department supervisor and the deficiencies were corrected prior to the new Activity
The Union notes that Section 11.10 allows forty-five (45) days for an applicant
to qualify for
a position and it submits that the grievant should have at least been granted the trial period.
concludes that the County violated the agreement by not awarding the vacant Activity Aide
to the grievant and it requests the grievant be awarded said position.
The County contends that this case is not complicated. It states that it exercised its
under Sec. 2.01 of the agreement to establish new qualifications for a vacant position and the
applicant didn't meet the qualifications. It submits that the Union's argument that the
have qualified under the old job description is immaterial as management changed the
as was its right. It notes that a CNA can participate in an activity with a resident in
a resident care plan devised by the Activity Aide in response to an individual's need and
observes that qualified training or specialized experience is required to make the
determination of and
the duration and timing of any such activity. The reasonableness and the necessity to make
change in the job description, according to the County, is supported by the State citation and
success of the new program observed by management after the change was made. It insists
experience in working as an Activity Assistant is essential as the needs of the residents are
individualized requiring specialized programming which demands a special understanding of
people working with the resident. It concludes that the County performed its duty and
the law and the contract and there was no violation of the labor contract.
The parties' collective bargaining agreement contains a broad management rights
grants the County broad discretion to make changes to maintain efficiency. In this case
the County added the requirement for Activity Aide of one year experience in an
or recreational capacity with geriatric, mentally ill or developmentally disabled persons.
change was made in response to a state and federal survey to meet the needs of residents.
County by its management rights clause is given the authority to make changes in job
as reasonably required to meet survey deficiencies. The mere fact that this was not a
requirement and the County had hired CNA's to fill an Activity Aide position does not mean
is required to maintain an old requirement which prevents it from correcting deficiencies.
Article XI of the parties' agreement requires the posting of a vacancy and provides
qualified employee within the Manor with the longest period of service shall be assigned to
vacancy. (Ex-1) The issue here is whether the grievant is qualified. The grievant testified
did not meet the specific requirement of one year in an activity department. The grievant
failed to meet the requirements of the position and was found not qualified. The County
she was not qualified is not unreasonable, arbitrary or capricious.
The Union asserts that the grievant should be given a trial period as provided in
Section 11.10. Section 11.10 provides for a forty-five (45) day period to qualify for the
applicant which requires the applicant meet the job requirements. This section does not
require a trial
period for an unqualified applicant. It simply provides that a qualified employee must
that he/she can perform the job and a trial period is not a training period as the applicant
met the qualifications required before a trial period is allowed. Thus, the grievant who
did not meet the required one year of experience was not entitled to a trial period.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned makes the following
The County did not violate the collective bargaining agreement by not awarding the
Activity Aide position to the grievant, and therefore, the grievance is denied.
Dated at Madison, Wisconsin this 5th day of December, 2000.