BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BROWN COUNTY PARA-PROFESSIONAL LIBRARY
LOCAL 1901-D, AFSCME, AFL-CIO
BROWN COUNTY (LIBRARY)
(Library Associate Position at Howard Branch)
Mr. David Campshure, Staff Representative, Wisconsin Council
40, AFSCME, 1566 Lynwood Lane, Green Bay, WI 54311-6051, appearing on behalf of
Mr. James M. Kalny, Director of Human Resources, Brown
County, 305 East Walnut Street, Green Bay, WI 54305-3600, appearing on behalf of Brown
Pursuant to the provisions of the collective bargaining
agreement between the parties, Brown County Library Para-Professional Employees, Local
1901-D, AFSCME (hereinafter referred
to as the Union) and Brown County (hereinafter referred to as the
County) requested that the Wisconsin Employment Relations
Commission designate Daniel Nielsen to serve as arbitrator of a
dispute regarding the transfer of a Library Associate, Johanne
Stuart, from the Central Library to the newly reopened Howard
Branch Library. The undersigned was so assigned. A hearing was
held on August 30, 2000, in Green Bay, Wisconsin, at which time the
parties were afforded the full opportunity to present such
testimony, exhibits, other evidence and arguments as were relevant
to the dispute. The hearing was not transcribed. The parties
submitted post hearing briefs and reply briefs, the last of which
was received on November 29, 2000, whereupon the record was closed.
Now, having considered the testimony, exhibits, other
evidence, contract language, arguments of the parties and the
record as a whole, the undersigned makes the following Award.
To maximize the ability of the parties we serve to utilize the
Internet and computer 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 agree that the issues before the Arbitrator are:
1. Did the County violate the parties'
bargaining agreement when it transferred the Library Associate
position from the Central Library to the Howard Branch?
2. If so, what is the appropriate
. . .
Article 1. MANAGEMENT RIGHTS
Unless otherwise herein provided, the
management of the work
and the direction of the working forces, including the right to
hire, promote, transfer, demote, or suspend, or otherwise discharge
for proper cause, and the right to relieve employees from duty
because of lack of work or other legitimate reason is vested
exclusively in the Employer. If any action taken by the Employer
is proven not to be justified, the employee shall receive all wages
and benefits due h/er for such period of time involved in the
The Employer shall adopt and publish
reasonable rules which may
be amended from time to time. However, such rules will be subject
to the grievance procedure.
. . .
Article 6. MAINTENANCE OF
A. The Employer agrees to maintain
existing benefits that are
mandatory subjects of bargaining and are not specifically referred
to in this Agreement.
B. The parties further agree that certain preexisting
conditions of employment, which were previously in other parts of
the Agreement shall be placed in this part of the Agreement. Said
mandatory conditions of employment are not meant to affect or limit
the maintenance of benefits clause noted in Section A above.
Personal effects, such as glasses, watches,
etc., damaged or
destroyed as a result of job duties shall be replaced by the
The above stipulations are intended to cover
that occur or exist; however, should special conditions arise on
matters that are mandatory subjects of bargaining, said matters are
to be taken up with the Union to arrive at a satisfactory solution.
Employees shall be given a copy of all their evaluations.
. . .
Article 23. SENIORITY
It shall be the policy of the Employer to
and to post each January a seniority list of employees, showing
anniversary dates and continuous service credits.
(a) LAY OFFS: If a reduction of
employee personnel is
necessary, the last person hired shall be the first person laid off
and the last person laid off shall be the first person recalled.
No regular employees shall be laid off if there are part-time,
temporary or seasonal employees working.
(b) PROMOTIONS: Whenever any
vacancy occurs due to a
retirement, resignation, new position or for whatever reason, the
job vacancy shall be posted within ten (10) days of vacancy. The
vacancy shall be posted on bulletin boards for a minimum of five
(5) work days; vacancies not filled within thirty (30) days of the
date of posting, such vacancies shall be reposted.
The job requirements and qualifications
shall be a part of the
posting and sufficient space provided for interested parties to
sign said posting. If no regular employee makes application for
this job by signing the posting, it shall be given to the temporary
or grant employee applying (signing) who has the most seniority,
subject to the right of the Employer to determine whether the
employee applying for said position has the proper qualifications
to perform the job. All new positions and salary rates shall be
negotiated by the parties. The Union shall receive notice of all
postings and the successful applicant.
Promoted employees shall serve a fourteen (14) day trial
period. If the employee fails to qualify, or if s/he wishes, s/he
may return to h/er former position during the trial period. Upon
completion of the trial period, s/he shall receive the
classification rate of pay. The trial period may be extended by
mutual consent of the Employer and the Union.
(c) QUALIFICATIONS DISPUTES: If
there is any difference of
opinion as to the qualifications of an employee, the Employer and
the Union committee may take the matter up for adjustment through
the grievance procedure. The Employer reserves the right to make
immediate temporary assignments to fill any vacancy until such time
as said vacancy is filled pursuant to the procedures outlined
(d) ACCUMULATION: The seniority
rights of an employee shall
continue to accumulate during periods of layoff and for other
legitimate reasons. Seniority for regular part-time employees
shall be based on the original date of employment.
. . .
The Employer provides general governmental services to the
people of Brown County, Wisconsin. Among these services is the
operation of a public library system employing, among others,
employees in the classifications of Librarian, Library Assistant
and Library Associate. The Library Assistants, Senior Library
Assistants and Library Associates are represented by the Union in
the Para-Professionals bargaining unit. The Librarians are members
of a separate professionals bargaining unit, as are the Library
The County's library system consists of a Central Library and
eight branch libraries. One of the branches, Howard, was a small
and aging facility, and the County determined to replace it with a
new and larger branch. The new branch was finished in 2000.
Whereas the old Howard branch was supervised by a Librarian III and
staffed by a Librarian I, a Senior Library Assistant and four
clerks, the new branch added one and a half Librarian I positions,
another Senior Library Assistant, a Library Associate and seven-plus clerks. The County
posted a Librarian, a Senior Library
Assistant, a part-time Maintenance Worker and seven part-time Clerk
jobs for bid. One of the Librarian jobs was filled by transferring
a Librarian from the Central Library to Howard. The new Library
Associate's slot was filled by the transfer of Johanne Stuart from
the Second Floor Reference Department at the Central Library to the
Howard Branch. Stuart's position at the Central Library was
eliminated and she was moved to the new facility. That transfer is
the subject of the instant grievance, as the Union
contends the Howard job should have been posted as a vacancy for
bid by all members of the bargaining unit and Stuart should have
been laid off and allowed to exercise her bumping rights.
The County engaged in discussions about the staffing of the
Howard Branch with the Union, as it did with the Professionals
bargaining unit and the Clerks bargaining unit. The Professionals
did not protest the transfer of a Librarian to the new branch, but
the para-professionals and the County could not come to agreement
on the County's desire to fill the Library Associate's slot through
transfer. Failing agreement, the County proceeded with the
transfer and the Union filed the instant grievance. At the
arbitration hearing, the County presented evidence of past
personnel transactions, which it contended showed that unilateral
transfers had been implemented without grievance or protest. The
Union disputed the validity of the County's examples, contending
that many involved other bargaining units and that in others there
may have been side deals to allow the transfers.
Additional facts, as necessary, are set forth below.
The Position of the Union Initial
The Union takes the position that the County violated the
contract by not posting the new Library Associate position at
Howard. In order to evade the posting and bumping provisions of
the contract, the County transferred Stuart from her position at
the Central Library and then abolished that job. The contract
clearly does not allow this. Article 23 is exceptionally broad and
it provides that "Whenever any vacancy occurs due to
resignation, new position or for whatever reason, the
shall be posted . . ." This language is clear and unambiguous.
The Arbitrator cannot, and should not, ignore it. Otherwise
management will have a green light to transfer employees whenever
it wishes to fill a job, picking and choosing at the expense of
negotiated seniority rights.
The County's reliance on the Management Rights clause is
misplaced. Article 1 gives management the general right to
"transfer" employees, but it is a fundamental precept of contract
interpretation that specific language, such as that in Article 23,
must govern over general language, such as that in Article 1. In
Article 1, the County claimed a general right to transfer, but that
same Article recognizes that the right is limited as "otherwise
herein provided." In Article 23, the County specifically agreed
that its policy would be "to recognize seniority" and to post every
vacancy occurring "for whatever reason." The recognition of
seniority means that a transfer cannot be unilaterally imposed. It
must be open for bid. The posting language means that a new job
cannot be filled by fiat. It must be posted. The location of a
job is an important benefit in a county-wide system with multiple
work locations. It is absurd to argue that a job at one location
is the same as a job at another and that an opening at Howard is
not a different job from an Associate's position at the Central
The County attempted to prove a past practice of unilaterally
transferring employees, but on close examination, the evidence
shows no mutual, binding practice. Of the 28 "transfers" listed on
the County's document, 15 involved other bargaining units and are
irrelevant to this dispute. Of the 13 remaining transfers, many
involved the switch of a vacant position from one site to another.
Obviously the County can relocate vacant positions. Those
positions are ultimately posted at the new locations and that is
fully consistent with Article 23. In the remaining instances,
there is not a single case where an employee was moved from one
location to another, without either the posting of a position or
the exercise of bumping rights. The County has never before
attempted to completely circumvent the provisions of the labor
agreement and the Arbitrator must conclude that no past practice
exists to support its current effort.
Finally, even if the Arbitrator believed that a past practice
existed to support the County's position, it is well-established
that past practice cannot trump clear language. If there have been
instances in which the County acted unilaterally and the Union
failed to challenge it, that means only that there are unremedied
past contract violations. Past practice is relevant only in
interpreting ambiguous language, and if as is the case here
there is no ambiguity, even the clearest and lengthiest practice
must yield. Given the broad and clear language of Article 23, no
plausible argument can be made that external evidence is needed to
understand what the contract says. Accordingly, under any view of
the facts, the Arbitrator must sustain the grievance and order the
County to post the Associate's position at Howard. The Arbitrator
should also retain jurisdiction over this matter to insure
compliance with his Award.
The Position of the County Initial
The County takes the position that there has been no violation
of the agreement and that the grievance should be dismissed. This
dispute centers on whether the County has the right to transfer an
employee. Article 1 of the contract expressly reserves to
management the right to transfer employees. It is a matter of
black letter law that an arbitrator must give contract language its
plain meaning and the contract here is absolutely plain. Johanne
Stuart's job was transferred from the Central Library to the Howard
branch. There was no reduction in force, no creation of a new job,
no layoff to be made, no vacancy to be filled. The right to
transfer employees is a fundamental prerogative of management and
here the County did what the contract authorizes the County to do.
The Union's theory of this case is that a vacancy was created
in the classification of Library Associate at the Howard branch,
but that theory is fallacious. No vacancy is created if there is
no vacant job. Johanne Stuart never left her position. There was
no opening for anyone to bid for and no occasion for Stuart to have
to bump. If this is a vacancy, then the right to transfer
employees is completely illusory. The rules of construction
require the Arbitrator to read the contract to give full meaning to
all clauses and to avoid any interpretation that renders a
provision a nullity. Giving the promotions language of Article 23,
the meaning requested by the Union simply writes out of the
contract the County's right to transfer employees. The more
rational reading is one which safeguards the right of employees to
use seniority to claim vacant positions, but precludes them from
claiming other people's jobs when a transfer is effected.
The Union seeks a result that was never intended and that is
shown by the internal inconsistencies that develop when Article 23
is applied to the instant situation. If this was a promotion, the
employee who claimed Stuart's job would be required to serve a 14-day trial period. Stuart
would presumably move to that employee's
job and have to serve a 14-day trial period. Since the position at
Central Library no longer exists, Stuart would no job to return to
if she did not successfully complete the 14 days. In practical
terms, Stuart could not exercise her right to return to her former
job and the County could not exercise its right to have a 14-day
trial period before making the job permanent. That makes no sense,
because the promotion language was never intended to apply to this
situation. If a promotion is limited to a truly vacant position,
the system works smoothly and predictably, just as the parties
Beyond the plain words of the contract and the rational
functioning of the posting system, the County's interpretation is
supported by past practice. While management at the Library tries
to transfer only vacant positions, there have been cases in the
past where employees have been transferred, just as Stuart was,
without any grievance or protest. In 1990, Jan Grall was
transferred and again in 1992 and 1996. As part of the transaction
in 1992, Trish Burton was transferred. In 1994, Colleen DePouw was
transferred. There was no posting involved in the 1992, 1994 and
1996 transfers. These were not accidents or anomalies. Again, the
County tries to avoid transferring employees, but where it has had
the need to do so, it has done so. This is further demonstrated by
the more frequent transfers involving the Professional employees'
unit. That bargaining unit has virtually identical language to the
para-professionals contract, and there have been at least nine
transfers in the professionals' bargaining unit since 1990.
Indeed, one of the positions at the new Howard branch was filled by
the transfer of a librarian. A practice in the same workplace,
involving another Union with identical language, is powerful and
persuasive proof of the practice within the industry and bolsters
the practice within the para-professionals bargaining unit.
As the clear language of the contract grants management the
right to transfer employees and since there is no express
limitation on that right and since the practice in this bargaining
unit and other bargaining units at the Library has been to allow
transfers, the Arbitrator must conclude that the County acted
properly when it transferred Johanne Stuart. Accordingly, the
grievance must be denied.
The Position of the Union Reply
The Union takes issue with the County's claim that it can
effectuate the involuntary movement of an employee just by calling
it a transfer. What happened in this case was the creation of a
new job. There had not been a Library Associate at the Howard
this. There was also the abolition of an old job. The Library
Associate position in the Second Floor Reference section at the
Central Library ceased to exist. The contract specifies what
happens when new jobs are created they are posted. It specifies
what happens when existing jobs are eliminated the incumbent has
the right to bump. There is no gap in the contract that must be
filled with an implicit right to transfer.
The County seeks to proceed in this case as if the words "or
for whatever reason" did not exist in the language defining how
vacancies are created. That language exists because the parties,
or at least the Union, understood that employees may wish to post
into jobs that are not more highly paid, but that are more
desirably located. The breadth of the term proves the parties'
intent that all jobs be posted. There was evidence at the hearing
of employees making lateral moves through the posting procedure and
that is not unusual.
The County's argument that the elimination of Stuart's old
position at the Central Library somehow means the posting language
cannot be applied is simply not logical. It may be that there is
no old job for her to return to, and thus, the 14-day trial period
is not meaningful. The same result would obtain where the County
posted a job and then elected not to fill the job of the successful
bidder. The County cannot cite its own unilateral decision to
abolish a position as the basis for ignoring the posting language
in the contract.
Neither can the Arbitrator accept the County's claim that the
Union is somehow forcing it forfeit its contractual right to
transfer employees. Quite to the contrary, it is the County that
seeks to eviscerate the employees' right to post for jobs and to
have a trial period to determine whether they wish to retain the
new job. The County accomplishes this in part by redefining when
a vacancy exists. The County's theory that a vacancy exists only
when a new position is added to the table of organization flies in
the face of the term's common meaning. Surely a vacancy exists
when an employee quits or retires or is promoted to a new
classification. In those cases, there is no new position, yet
there is surely a vacancy.
The County's recitation of past instances to establish a
practice is flawed. It fails to point out that the 1992, 1994 and
1996 cases all involved a posting of some type. As for the
practice in the Professionals bargaining unit, there may be many
reasons that the Professionals chose not to grieve the transfers in
their unit and the Arbitrator cannot simply assume that they agree
with the County's reading of the contract. Moreover, each unit
separately bargains and separately administers its contract.
Different bargaining history and different contract administration
will inevitably yield different interpretations of the agreements
and the practice of one unit cannot be held to prove a practice in
The Position of the County - Reply
The County reiterates its position that a seniority provision,
even a broadly worded seniority provision, does not take precedence
over every other provision of the contract and does not by
implication erase the specific grant of a right to transfer
employees. The Union is
correct that specific language governs over general, but that is
only true if there is a conflict between the provisions. Here,
there is no conflict. If there is a vacancy, seniority applies.
However, there is no vacancy to apply the language of Article 23 to
there is one job and there is already an incumbent. An employer
has discretion in deciding whether to declare a vacancy and the
County is not obliged to create a vacancy when its needs are better
met by a transfer.
As to the evidence of past practice, the Union addresses only
those instances where a vacancy was posted and ignores those where
a true transfer took place. In 1984, two professional positions
were transferred from the Central Library to East, without posting.
In March of 1990, Jan Grall was transferred from the Bookmobile to
DePere and the position at the Bookmobile was abolished. Grall
asked to be allowed to bump and that request was granted on a non-precedential basis.
However, it was the transfer that triggered
the bumping and this is inconsistent with the Union's claim that
transfers are not permitted. In 1992, Grall was unilaterally
transferred, with no bumping, from Ashwaubenon to East. There was
no posting of any type. In 1996, Grall was again transferred, from
East to Wrightstown. There was no posting at Wrightstown. Grall
was moved because management deemed it necessary. Numerous
professional employees were also moved in what were clearly
unilateral transfers. The practice is beyond dispute.
At the outset, I would note that the evidence of past practice
presented in this proceeding is largely irrelevant. This case
involves the re-opening of a facility, with a need for an increase
in staffing levels. In response, the County posted several new
jobs for bid in this bargaining unit and others, and also
reallocated position from other facilities to this one. As
detailed below, the question on which this case turns is whether
there was a vacancy created by the planned increase in staffing
levels. The past practice evidence deals with transfers in a
variety of bargaining units, including this one, but does not shed
light on what constitutes a vacancy.
Article 1 of the collective bargaining agreement gives
management the right to "transfer" employees. Article 23 of the
contract addresses the calculation and uses of seniority. It
nowhere mentions transfers, but in Section (b), it speaks to
"Promotions" and sets forth a procedure allowing employees to use
their seniority to claim jobs for which they are qualified. While
a "transfer" is not the same thing as a "promotion" the terms are
often used loosely in labor relations. In part, this is because
almost all promotions involve a transfer to another job. One
common definition of a promotion is "the transfer of an employee to
a higher job classification," while a transfer is defined as a
"shift of an employee from one job to another . . ." 1/ The
contract here uses the heading "Promotions" to describe job
transactions that could involve purely lateral transfers. Under
the language of Article 23(b),
the job posting procedure is triggered "Whenever any vacancy occurs
due to a retirement, resignation, new position or for whatever
reason" and reasonably read, this would allow employees to post for
vacancies in the same classification and even lower rated
classifications. The question in this case is not whether the
movement of Johanne Stuart from the Central Library to the Howard
Branch is characterized as a transfer. It is whether there was a
vacancy at Howard. Posting is only required where there is a
vacancy. If there was, it had to be posted. The job opportunity
may have been a transfer, a promotion or a demotion, depending upon
who posted for it. However it is characterized, a vacancy must be
offered to the bargaining unit. By the same token, under the clear
language of Article 23, if the transaction here did not involve a
vacant position, the posting language does not apply.
Dictionary of Labor Terms, cited in Elkouri and
Elkouri, How Arbitration Works (Volz, et. al., BNA 5th Ed.)
The County denies that there was a vacancy and cites the
familiar rule that an Employer has great latitude in determining
whether a vacancy exists. That is true as far as it goes, but it
is a statement of an Employer's rights where it elects not to fill
a job that has come open. In that context, the right to determine
whether a vacancy exists is the right to choose to do without a
position and absent specific contract provisions on minimum
staffing and the like, arbitrators are properly deferential to
management's judgment. Posting procedures insure that employees
have a fair chance at available opportunities in the work force,
but they do not compel management to create those opportunities.
In this case, for example, if the Union had grieved the decision
not to fill Stuart's slot at the Central Library once she was moved
to Howard, management could properly respond that it had the right
to elect not to declare a vacancy at the Central Library, even if
the job had not been eliminated from the table of organization. In
contrast, the issue here concerns a position that was filled the
Library Associate's position at Howard and if that was a vacancy
within the meaning of Article 23, management could not persuasively
argue that it has the discretion to decide that a vacancy did not
exist there and bypass the posting procedure.
The County's premise here is that a vacancy does not
exist because no job was added to the overall workforce. That has
some relevance, but it is not the only test. Where an employee
quits or retires, there is no job added to the workforce. The head
count remains the same, but there is a vacancy. An existing
position lacks an incumbent. If the County determines that it
still needs that position at that location, it must post the job.
This situation is the converse. A need existed at the Howard, but
there was no position. A position existed at the Central Library,
but there was no need. Had the County transferred Stuart, then
declared a vacancy at the Central Library, this transaction would
rather clearly be a sham intended to evade the posting procedures
of the contract. That is not what happened.
The County reallocated the position of Library Associate from
Second Floor Reference at Central Library to the Howard Branch.
Contrary to the Union's conception of the transaction, this was not
the elimination of a job and the creation of another job. This was
instead a single transaction, which created neither a vacancy in
Howard nor a layoff at the Central Library. Certainly, the County
could have elected to handle this as two separate transactions, and
if it had, the posting language and layoff language would have come
into play. However, the contract as written does not require the
County to structure a genuine reallocation in that fashion. If
Article 23 specified that transfers were to be accomplished by
seniority, clearly the County would have been required to post the
transfer opportunity at Howard. The contract does not so require.
Instead, the posting procedure, while very broad, requires a
vacancy before seniority comes into play. There was no vacancy,
and thus, the language of Article 23 was not triggered.
The Union argues forcefully that allowing this transfer
will establish a precedent, allowing the County to ignore the job
posting procedure in the future. This decision is confined to the
facts of the case and the Union's concern is valid only to the
extent that the County is willing to confine itself to
reallocations and is content to permanently eliminate the position
at the site an employee is transferred from. As discussed above,
where the evidence suggests that the reallocation is a sham,
intended to frustrate the posting rights of employees, the County
would not have the right to take unilateral action. There is no
evidence in this record that would support the conclusion that the
County was engaging in such an evasion.
On the basis of the foregoing, and the record as a whole,
I have made the following
The County did not violate the parties' collective bargaining
agreement when it transferred the Library Associate position from
the Central Library to the Howard Branch.
The grievance is denied.
Dated at Racine, Wisconsin, this 7th day of March, 2001.