BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LA CROSSE COUNTY (LAKEVIEW HEALTH CARE
LAKEVIEW INSTITUTION LOCAL 1403, WCCME,
Mr. Robert B. Taunt, County Personnel
Director, La Crosse
County, Room 202, 400 4th Street North, La Crosse, Wisconsin
54601-3200, appearing on behalf of the County.
Mr. Daniel R. Pfeifer, Staff Representative, Wisconsin
AFSCME, AFL-CIO, 18990 Ibsen Road, Sparta, Wisconsin 54656-3755,
appearing on behalf of the Union.
La Crosse County (Lakeview Health Care Center), hereinafter
referred to as the County, and Lakeview Institution Local 1403,
WCCME, AFSCME, AFL-CIO, hereinafter referred to as the Union, are
parties to a collective bargaining agreement which provides for
final and binding arbitration of grievances. Pursuant to the
parties request the Wisconsin Employment Relations Commission
appointed Edmond J. Bielarczyk, Jr. to arbitrate a dispute over the
denial of a posting. Hearing on the matter was held in West Salem,
Wisconsin on December 6th, 2000. Post-hearing written arguments
were received by the arbitrator by January 29th, 2001. Full
consideration has been given to the evidence, testimony and
arguments presented in rendering this Award.
During the course of the hearing the parties where unable to
agree upon the framing of the issue and agreed to leave framing of
the issue to the undersigned. The undersigned frames the issue as
"Did the County violate the collective bargaining agreement
when it failed to award the Activity Therapy Assistant position to
"If so, what is the appropriate remedy?"
. . .
2.01 Except as otherwise provided for in this Agreement, the
County retains the normal rights and functions of management and
those that it has by law. Without limiting the generality of the
foregoing, this includes the right to hire, promote, transfer,
demote or suspend or otherwise discharge or discipline for proper
cause, the right to decide the work to be done and location of
work, to determine the construction, maintenance or services to be
rendered, the materials and equipment to be used, the size of the
work force, and the allocation and assignment of work or workers;
to schedule when work shall be performed; to contract for work,
services or materials, to schedule overtime work; to establish or
abolish a job classification; to establish qualifications for the
various job classifications; and to adopt and enforce reasonable
rules and regulations.
2.02 The Administration agrees to make every effort possible
to provide a like position, or as similar as possible a position,
to employees whose positions are being deleted through
reorganization of a department or a position.
. . .
2.03 In the event the above is not possible, those employees
mentioned above shall be given preference in a new position before
any new employee is hired in accordance with Section 6.02 of this
PROBATION, SENIORITY AND JOB POSTING
. . .
4.05 When an employee is laid off due
to the shortage of work, lack
of funds, or the discontinuance of a position, such employee
may take any other position for which the employee may qualify
and that the employee's seniority will permit them to hold.
4.06 In filling
vacancies, making promotions, or where new jobs are
created within the Bargaining Unit, those qualified employees
available with the most seniority shall be given preference.
Any such employee shall be given a trial period of at least
fifteen (15) working days, not to exceed three (3) calendar
months. If at the end of the trial and training period it is
determined that an employee is not qualified to perform the
work, they shall return to their old position and rate.
vacancies, new jobs, and promotions occur, such
conditions shall be posted in a conspicuous place listing the
pay, duties, and qualifications, to include whether it is a
day, evening or night shift, which shall not restrict the
right of the Administration to transfer staff as needed. This
notice of vacancy shall remain posted for seven (7) working
days. Employees interested shall apply in writing within the
seven (7) working day period. Within five (5) working days of
expiration of the posting period, the employer will award the
position to the most senior applicant qualified. Copies of
all job postings will be given to the President, or Secretary,
of the Local at the time declared vacancies are posted.
4.08 The County
agrees to furnish two (2) bulletin boards at
Lakeview Health Center. The boards shall be used by the Union
only for announcements of Union business to its members.
Their locations will be determined by mutual understanding
between the Department Head and the Local. There shall be no
defamatory materials, cartoons, or any other material not
related to the welfare of the employees, posted on saidbulletin boards.
. . .
The pertinent facts herein are not in dispute. On July 7, 1999 the
County posted the position of Activity Therapy Assistant. This position
would be located at the County's Neshonoc Center, hereinafter referred
to as the Center. Under qualifications for the position was the
following requirement: Good Attendance Required. Bob Roraff,
hereinafter referred to as the grievant, properly bid for the position
as did at least one other employee who had lesser
seniority. The County's Supervisor of Activities Tina Johnson reviewed
bids for the position. Johnson denied the grievant's bid noting on his
bid form "attendance not acceptable." Thereafter, on July 23, 1999 the
instant grievance was filed and processed to arbitration. There is no
dispute that the grievance is properly before the arbitrator. On August
6, 1999 the following letter was sent to Union President Margaret
Union President, Local 1403
Lakeview Health Center
902 East Garland
West Salem, WI 54669
Re: Grievance filed 7/23/99 by Robert
Robert Roraff bid on an Activity Aide
position posted July 7-14,
1999. The posting stated **Good Attendance Required** as a basic
qualification for the position. Mr. Roraff was not offered the position
because his attendance record indicates he is not a "qualified"
Attendance is an important qualification for
the activity aide
position because the assignment is in a small department with minimal
resources for replacement. Frequent absences in my department interfere
with resident care and cause hardship for co-workers. In the activity
department, programming for residents would have to be canceled if staff
are not available. Frequent cancellations of programming can put the
facility out of compliance with State-Federal regulations.
Robert Roraff has had several evaluations
addressing his poor
attendance. On January 1, 1997, Mr. Roraff had used 426.3 hours of sick
leave available. In 1997 he used 45 days of sick leave and, in 1998, he
used 31 days of sick leave. Mr. Roraff had utilized all of his
accumulated paid sick leave by July, 1998 and has since, in general,
reduced his absences to one per month using each sick leave day as he
Mr. Roraff's evaluations have also
addressed the pattern in his use
of sick leave. In the past 12 months, Mr. Roraff has been absent at
least one day each month, almost always adjacent to a scheduled day or
weekend off. It is difficult to accept that his absences are related to
work stress when the call-ins usually follow days off from work. Both
the pattern and change in frequency when paid benefits were no longer
available would indicate Mr. Roraff has some control over which days and
how often he has been absent from work. In fact, Mr. Roraff regularly
called in sick after every vacation he has taken in the past two years.
In the past, Lakeview has denied a bid due
to poor attendance when
the change in position required an increased reliance on the employee
being present when scheduled. In this case, the size and resources of
the activity department and the demanding work load of the Neshonoc
Center laundry program require reliable employees. For an employee with
a poor attendance record to be considered for a position of increased
responsibility, the facility requires the employee to demonstrate
improved attendance over a substantial period of time. Mr. Roraff needs
to demonstrate a pattern of good attendance in order to be considered
for future postings.
If you have questions, please contact me.
Ann Clark /s/
Ann Clark, OTR, NHA
The record demonstrates that in 1998 the grievant was absent
assigned shifts 32 days. Prior to the July posting he was absent 7
times and another 10 times thereafter for a total of 17 times in 1999.
In 1985 the grievant informed the County of headache problems. On
January 28, 2000 the grievant's doctor, Gregory G. Fischer, M.D.,
provided the following letter:
RE: Robert Roraff
Gundersen Lutheran #13-66-22-8
To Whom It May Concern:
Robert Roraff is a patient of mine in the
Neurology Clinic with
mixed headaches, tension type and migraine without aura. His
headaches are significantly worse at times under stress, such as
during a particularly stressful day at work. I have followed him
in the Neurology Clinic since July 5, 1985. He is currently on
several medications including Celexa 40 mg at bedtime, Tylenol #3
up to 20 per month max, Egsic Plus up to 20 per month max and
Imitrex 50 mg which he is using about 2 per month. He also uses
Ambien 10 mg for sleep, on occasion.
The patient's job as a Nurse's Aide at
Lakeview can be quite
stressful and since the headaches are often worse at the end of a
hard day, I think it would be worthwhile for him to try a different
position. I understand a Recreational Therapy position may be
available for him and I think this would be quite appropriate.
Gregory G. Fischer, M.D. /s/
Gregory G. Fischer, M.D.
The record demonstrates that other than attendance the
grievant is qualified for the disputed position. The record also
demonstrates that Administrator Ann Clark had denied an employee a
job bid based upon the employee's poor attendance. That employee
had asserted a migraine headache problem and the matter was not
grieved by the Union.
The Union contends there is a difference between qualifications and
attendance. The Union argues that attendance would fall under fitness
or physical fitness, which is not a requirement under the instant
collective bargaining agreement. The Union points out the parties
agreed that the grievant is otherwise qualified for the position. In
support of its position the Union points to Florida Power Corporation,
81 LA 51 (1983) wherein the arbitrator held the Union nor the grievant
never waived the strict application of seniority and ability and
further, that as there was no criteria for physical fitness in the
contract, there was a strong argument and rationale for awarding the job
to the grievant. The Union also points out the arbitrator noted he did
not have the authority to add to the contract the terms "fitness" or
The Union also argues the term "availability" does not encompass
the prior attendance of the grievant. The Union points out the grievant
has never been disciplined for excessive absenteeism and argues an
employee's absenteeism record is normally not proof of lack of ability
to do a job but a subject for corrective measure. The Union also argues
the County was aware of the grievant's medical problems and points out
it never sought a medical certificate from the grievant even when the
County could have under the terms of the collective bargaining
The Union contends the County must demonstrate the necessity for
good attendance. The Union points out that at the Center there were
previously one (1) supervisor and two (2) employees and now there would
be one (1) supervisor and (3) three employees. The Union also points
out the grievant's current classification, Resident Aide, and the
Activity Aide position receive the same rates of pay.
The Union asserts that the collective bargaining agreement provides
for a fifteen (15) to three (3) calendar months trial period. The Union
argues the grievant should have been given a trial period, particularly
in light of the grievant's doctor advising the new position may be less
stressful on the grievant.
The Union would have the undersigned sustain the grievance and
award the position to the grievant.
The County, in acknowledging the grievant had informed it of having
migraines, had not provided any documentation of diagnosis or treatment.
The County also points out the grievant acknowledged he had been
counseled about his absenteeism. The County argues that because there
are only three (3) employees in the Center, attendance is especially
important. The County points out these three (3) employees must juggle
vacation, holidays and sick leave because absent staff at the Center are
not replaced by other County employees.
The County also argues it must have the ability to establish
qualifications for jobs. The County argues it must get work done
efficiently, stay within minimal state funding and provide a viable
service. The County argues it has the right under the management rights
clause to establish qualifications and this grant of powers should be
The County also points out the grievant was aware when he signed
the bid that good attendance was required. The County contends the
grievant's thirty-two (32) days of absence in 1998 and seven (7) days
prior to the posting in 1999 demonstrates poor attendance. Particularly
when the County counsels employees as "Needs Improvement" if they are
absent seven (7) or more times.
The County points out that the grievant did not offer any medical
explanation until six (6) months after the denial. The County argues
that the letter is insufficient to establish some permanent disability,
indicating the headaches begin at the end of the work day and offers no
knowledge the doctor even knew the duties of the vacant position.
The County also argues the County can not accommodate an employee
with employment at the Center when that employee has an attendance
problem. Because of limited staff at the Center the good attendance is
The County would have the undersigned deny the grievance.
The record herein demonstrates that the County established good
attendance as a requirement for the position of Activity Therapy
Assistant. The record also demonstrates that the County does not
transfer employees from other positions to the Center's Activity Therapy
Assistant positions if one or more of the three (3) employees who are in
this classification are absent. Unlike Florida Power Corporation, the
County has used the good attendance qualification on previous postings
and has, on at least one previous occasion, denied a posting to an
employee who had a poor attendance record. Therefore the undersigned
finds the County did not violate the parties collective bargaining
agreement when it established "good attendance" as a requirement for the
Activity Therapy Assistant position.
The record demonstrates the grievant does not have a good
attendance record and that he has been counseled about his attendance on
several occasions. The record also demonstrates the grievant was aware
when he signed the posting that good attendance was a requirement for
the Activity Therapy Assistant position.
Further, as noted by the County, there is no evidence the
grievant's doctor was aware of the duties and responsibilities of the
disputed position. There is also no evidence in the record to disprove
Clark's assertions that over the last two (2) years, the grievant called
in sick after every vacation and that his sick leaves were generally
adjacent to a scheduled day off or weekend. Thus, the grievant's
doctor's contention that the grievant's headaches are worse at the end
of a stressful workday is not supported by the grievant's actual use of
sick leave. The undersigned notes here that the Doctor's letter was not
given to the County until six (6) months after Johnson denied the
Therefore, based upon the above and foregoing, and the testimony,
evidence and arguments presented, the County did not violate the
collective bargaining agreement when it denied the grievant the Activity
Therapy Assistant Position. The grievance is denied.
"The County did not violate the collective bargaining agreement
when it failed to award the Activity Therapy Assistant position to the
Dated at Madison, Wisconsin this 25th day of April, 2001.
Edmond J. Bielarczyk, Jr., Arbitrator