BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF FOND DU LAC
CITY OF FOND DU LAC EMPLOYEES
LOCAL 1366, AFSCME, AFL-CIO
Mr. William G. Bracken, Davis & Kuelthau, S.C., 219
Avenue, P.O. Box 1278, Oshkosh, Wisconsin 54903-1278, appearing on
behalf of the City.
Mr. Lee Gierke, Staff Representative, Wisconsin Council 40,
AFL-CIO, P.O. 2236, Fond du Lac, Wisconsin 54936-2236, appearing
on behalf of the Union.
The City of Fond du Lac, hereinafter referred to as the City,
and City of Fond du Lac Employees, Local 1366, 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 a Request to Initiate
Grievance Arbitration 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 Fond du
Lac, Wisconsin on January 10, 2001. Post hearing arguments and
reply briefs were received by the Arbitrator by April 2, 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 City violate the collective bargaining agreement
it failed to select Sue Kaiser or Tamara Schanke for the vacant
Accounts Payable position?"
"If so, what is the appropriate
. . .
PROMOTION AND SENIORITY
. . .
Section 5 Promotions, Transfers,
All vacancies for positions
represented by the Union that occur as
a result of retirement, resignation, new positions or for
whatever reason, except entry level positions, shall be posted
on bulletin boards in all divisions for at least five (5)
working days before the vacancy is filled. The posting shall
state the job requirements, qualifications required and pay
rate for the position.
Any employee not serving an initial
probationary period will be
eligible to sign the job posting and be given consideration
for the position.
In filling vacant positions, the City
shall consider the employee's
past job performance, length of service, previous training and
experience. The most senior employee who meets the
qualifications of the position or who through past experience
has shown that he can meet those qualifications within the
ninety (90) day probationary period or one hundred and eighty
(180) day probationary period in the case of Public Safety
Communication Operators, shall be selected for the position
In filling the vacant
position, any permanent employee
within the division in which the vacancy occurs or any
permanent employee who has been bumped from the division in
accordance with the provisions of Section 6 of this Article
within the two (2) years prior to the date of the initial
posting of the vacancy who signs the posting will be given
first consideration for the job. If no permanent employee
within the division or no permanent employee who has been
bumped from the division as defined immediately above signs or
qualifies for the position, permanent
employees outside of the
division shall be considered for the
position. In considering the seniority of signers, seniority
shall date from the date of initial employment in a permanent
bargaining unit position. If no permanent employee signs or
qualifies, seasonal employees who have signed will be given
consideration based upon seniority. Seasonal employees within
the division will be given first consideration then seasonal
employees outside of the division. Seasonal employees of six
(6) months duration or more in the Parks Division shall have
full posting rights year round.
. . .
Except as otherwise specifically provided herein, the
Management of the City of Fond du Lac and the direction of the work
force, including but not limited to the right to hire, to
discipline or discharge for proper cause, to decide initial job
qualifications, to lay off for lack of work or funds, to abolish
positions, to make reasonable rules and regulations governing
conduct and safety, to determine schedules of work, to subcontract
work, (no employee shall be laid off due to subcontract provisions)
together with the right to determine the methods, processes and
manner of performing work, are vested exclusively in Management.
. . .
The City had employed Linda Baxter has a Clerk Typist II (Accounts
Payable) from 1994 until 1999 when she posted to another position. The
City, in the general course of business, reviewed the position and
determined to make changes in it. It eliminated some functions and made
the position part time. The City determined to place greater emphasis
on accounting principles and lesser emphasis on data entry skills. The
City also determined to change the qualifications and when it posted the
position posted the following:
"Required Training and Experience
Associate Degree in Accounting and/or two years experience of
recent accounts payable work experience in an automated setting.
Ability to work independently if necessary. Proficiency in Excel
and Word is required."
Three employees signed the posting and followed though on the testing
and interview for the position, Linda Schiessel, Tamara Scharnke and Sue
Kaiser. The City offered the position to Schiessel who turned it down.
The City reviewed work history and experience on file with the City,
their test scores, and determined they did not meet the minimum
qualifications. Scharnke does not have an Associate Degree in
Accounting, does not have two years recent experience in accounts
payable and received a test score of 51.7. Kaiser does not have an
Associate Degree in Accounting, does not have two years recent
experience in accounts payable and received a test score of 56.64.
Schiessel had at least two years experience in the Comptroller's office,
performed some of Baxter's functions after Baxter vacated the Accounts
Payable position and had a test score of 77.8. The City had determined
75 was passing.
The City determined that Scharnke and Kaiser were not qualified
and advertised for and hired an outside candidate. On March 22, 2000
the instant grievance was filed and processed to arbitration in accord
with the party's collective bargaining agreement.
The Union argues that the language of the agreement serves a dual
purpose. It allows a trail period for the employee, and, it allows the
City to evaluate the employee's performance for the job in question.
The Union points out Schanke is a ten-year employee with a good job
record. Schanke has a two-year Administrative Assistant/Secretary
Associate degree and has taken a course in Career Accounting. She had
performed duties that included work in data entry, word processing, and
payroll functions and worked with Excel on both payroll and overtime.
Kaiser is an eight-year employee with a good job record. Kaiser has a
two-year Supervisory/Management Associate Degree with a course in
Managerial Budget and Finance and a two-year Secretarial Science
Medical Associate Degree. She had performed duties that included work
in data entry and word processing.
The Union acknowledges that the Accounts Payable position had
evolved due to new technology. However, the Union argues these changes
were minor and do not warrant the major change in the "Required Training
and Experience." The Union points out that to go from a requirement of
a high school diploma to a two year Associate Degree should be supported
by significant changes in the job. The Union points out the City
provided no evidence or testimony concerning any significant changes in
the actual make of the job.
The Union points out that when Baxter was awarded the position in
1994 she did not meet the minimum qualifications for the position and
had qualifications less than the stringent new qualifications. The
Union points out Baxter had no computer background when she started as
the accounts payable clerk. The Union also points out that the changes
made by the City in Baxter's view were subtractions of job duties.
The Union also points out that the City has not requested a higher
pay rate be accorded the changed degree of skill and background. The
Union asserts it had requested an increase in the past for the position
and did not view the current changes as warranting a review to determine
if such a request should be renewed.
The Union points out that Schiessel was offered the position even
though she did not possess the two-year degree nor did she have the two
years experience. The Union asserts the language of the agreement
allows for the awarding of a position if the employee has sufficient
ability and seniority.
The Union also argues the written portion of the test given by the
City stresses book learning more than ability to perform the functions
of a job. The Union also argues that when the City made the passing of
the test final it substituted the method for proving ability. The Union
also points out that the City gave no evidence on how it determined to
weight the test, particularly putting book learning ahead and more
important. The Union concludes the City did not know how to weight the
different components of the test. The Union also points out that if an
employee got a minimum on all four of the components the employee would
still receive a score below passing.
The Union asserts the agreement mandates selecting the most senior
employee who has the ability to perform the job. The Union concludes
the testing was flawed and prevented the employees from using a basic
benefit, advancing with increased seniority. The Union argues you
advance based upon the ability to do the job within a specific period of
time. The Union avers the two grievants have demonstrated thought their
work and through their outside educational experiences the basic
qualifications and should be afforded the opportunity to perform the job
of Clerk Typist II (Accounts Payable).
The Union would have the undersigned sustain the grievance.
The City contends the clear and unambiguous language of Article
XXII, Subsection C, of the agreement specifies the selection process in
the instant matter and governs the City's selection of an individual to
fill the Accounts Payable Clerk position. The City asserts the hybrid
nature of this provision requires consideration of not only seniority
but also qualifications. The City asserts this provision clearly
reflects the parties' intent to recognize qualifications as a factor in
filling vacancies. The City argues that in determining whether to award
the position to the grievants it considered past job performance, length
of service, previous training and experience. The District points out
the grievant's did not possess the minimum qualifications.
The City also contends arbitral authority recognizes the City's
right to establish the minimum qualifications for a position as well as
the right to determine whether the grievants met the requisite
qualifications for the position. The City argues the system it used was
properly established, enjoyed the participation of the Union, attempted
to measure relevant factors in a reasonable manner and is objective and
free of arbitrary, capricious or discriminatory elements. The City also
argues it can use any reasonable manner to determine whether an
individual has the qualifications to perform the position and points out
there is nothing in the agreement which prohibits it form giving a test.
The City contends that after considering a variety of factors and
using a variety of methods to evaluate the grievants' qualifications it
determined the grievants did not possess the requisite qualifications.
The City contends the requirements for the position were reasonably
related to the duties of the position. These require the incumbent in
the position to perform general accounting work using generally accepted
accounting principles, policies and procedures. The City points out the
grievants testimony and records demonstrate they do not have the
requisite minimum qualifications for the Accounts Payable position. The
City argues that notwithstanding the grievant's lack of qualifications
the City determined to test the grievants to provide them with a fair
and objective opportunity to demonstrate their abilities. The City
points out they failed to obtain the minimum composite score. The City
concludes that based upon the information submitted by the grievants and
their composite test scores it was clearly indicated that the grievants
were not qualified for the position.
The City also argues that the minimum qualifications for the
Accounts Payable position cannot be demonstrated by a trial period. The
City asserts either the grievants had the requisite training or
experience or they did not. The City points out the trial period is not
training period for minimum qualifications. The City also asserts it is
not required to give the grievants a trial period so they can
demonstrate their qualifications. The City contends the grievants must
first demonstrate they have the qualifications or establish they can
obtain the qualifications in ninety (90) days. The City contends that
herein the grievants could not have satisfied the minimum qualifications
within ninety (90) days.
The City would have the undersigned deny the grievance.
Union's Reply Brief
The Union asserts the instant language is not a hybrid seniority
provision, but, the language is one of sufficient ability. Sufficient
ability being that if the employee meets the minimum qualifications for
the job preference is given to the most senior bidder.
The Union acknowledges that the City has the right to establish
minimum qualifications for a position. However, the Union asserts such
a right is not unfettered. The Union contends the City offered no
evidence to demonstrate a need for the new qualifications.
The Union also argues that for the City to give a test the test
must be appropriate and it must be validated. The Union also argues
that while the City has the right to consider a number of factors and
may use a variety of methods in evaluating the grievants qualifications
the City should examine factors such as talking to the grievants
supervisors and looking at City evaluations.
The Union again argues the qualifications are not reasonable and
the City treated them as sacred. The Union points out that Schiessel
did not meet the minimum qualifications and she has the same background
as the grievants. The Union also argues that there is a practice of the
City being very liberal in awarding jobs to candidates on the basis of
The Union also argues the City presented no evidence that the
written test accurately measured the capability of the grievants
abilities to learn how to do the job or the grievants ability to do the
job. The Union acknowledges that a trial period is not a training
period but avers that if Schiessel met the minimum qualifications so did
City's Reply Brief
The City argues that the record demonstrates the grievants do not
meet the minimum requirements for the position. To be entitled to the
Accounts Payable position the grievants must first demonstrate they have
the minimal qualifications. The City contends it has demonstrated the
grievants are not competent for the job. In order for the grievants to
have a trial period they must first demonstrate they are qualified.
Either they have the necessary experience of they do not. The City
points out Schanke has no experience relating to accounting. The City
argues her one class in accounting does not equate to an Associate
Degree in Accounting. At most she had limited knowledge of accounting
and therefore she is not qualified. The City acknowledges Kaiser has
two (2) associate degrees, one course in accounting and some background
in accounting. The City argues Kaiser does not meet the minimum
The City points out the Accounts Payable position changed from
being primarily data entry to an accounting position. The City argues
the Union ignores this fact and thus argues the position has not
changed. The City contends the change in the type of work being
performed is the reason for the change in the job's requirements. The
City argues the changes required a working knowledge of accounting and
therefore a change in minimum requirements was necessary. The City also
points out that the position's duties and responsibilities have changed
since the previous incumbent took the job in 1994.
The City also asserts there is no binding past practice that would
require the City to provide a trial/training period to demonstrate that
they are qualified for a particular position. Here the City point out
the grievants could not achieve the two (2) years experience or the
Associate Degree in Accounting in the ninety (90) day trial period. The
City also points out that this is not a situation such as the one Kaiser
faced when she took a Laborer position and did not
possess a Certified Drivers License (CDL). During her trial period she
could test for and achieve a CDL. Herein, she could not in ninety (90)
days get two (2) years experience or an Associate Degree in Accounting.
The City also points out Schiessel, contrary to the Union's claim,
had two years experience in the Comptroller's office and the City
concluded this met the experience requirement. The City also points out
that when the incumbent vacated the Accounts Payable position, Schiessel
assumed many of her responsibilities. The City asserts that Schiessel's
background and experience was different than that of the grievants. The
City also asserts the test it gave were fair and reasonable. The City
points out Senior Accountant Kawleski took the examination prior to it
being given to employees to establish a benchmark. The test was
administered fair and without discrimination. The City asserts any
individual who possessed the minimum qualifications would pass the test.
The City also asserts the tests were properly evaluated. The City
concludes the test was appropriate and valid. The City also points out
it placed less emphasis on the data entry portions of the test because
the position was performing less data entry work.
The Union has argued that the City was unreasonable when it
established the minimum qualifications for the Accounts Payable
position. Article XXVII of the agreement clearly gives the City the
right to establish minimum qualifications for a position. Herein the
City had determined that when it was replacing the incumbent the City
wanted someone with experience and/or training. Such a determination is
not unreasonable. While the Union may believe the position is
underpaid, the place to resolve that type of dispute is the bargaining
table. Herein, even if the job had not evolved the City could determine
that it did not want to train someone to attain accounting knowledge and
experience, but wanted someone to enter the position already possessing
knowledge and/or skill in accounting principles. The fact that the
position has changed from primarily data entry to requiring more
analytical functions demonstrates the duties of the position have
changed over time and may continue to change. In effect the City has
determined to change the position from basically one where no accounting
experience was necessary to one where the position now requires
accounting experience. The undersigned concludes such a determination
is not unreasonable and that the City did not violate the collective
bargaining agreement when it established the qualifications for the
Accounts Payable position.
The record clearly demonstrates the grievants do not meet the
minimum qualifications for the position. Neither had the requisite
training and/or experience. Thus, having found the City had the right
to establish minimum qualifications, and, given the fact neither
grievant meets those minimum qualifications, the grievance must be
Article XXII, Section 5, Subsection C provides where an employee
can demonstrate they could meet the requirements in ninety (90) days
they would have the opportunity to be selected for the position. There
is nothing in the record that would demonstrate either grievant could
achieve two years experience or achieve the Associate Degree in
Accounting during the trial period. Herein both parties have
acknowledged that the trial period is not a process used to train an
employee in the minimum qualifications for the job. Both grievants have
acknowledged they have a limited background and experience in Accounting
principles. Having found the City can require a two-year experience
and/or training in Accounting principle for the position, the
undersigned also finds the City is not required to offer a trial period
to employees who do not meet the minimum qualifications for a position
and who cannot, during the trial period obtain the minimum
qualifications for a position.
As noted above, the City has the right under the collective
bargaining agreement to determine what the minimum requirements of a
position are. Having done so, the City has the right to determine
whether applicants have the sufficient ability to meet the minimum
requirements. Herein the employees do not have the ability to meet the
minimum requirements. However, the City went another step and tested
the applicants. The undersigned notes that even though the test was for
"book knowledge" such knowledge is a reasonable requirement for an
Accounts Payable position given the types of duties the position is to
perform. While each question separately could be dealt with in an on-the-job training
program, in total the questions assessed the takers
knowledge of accounting. Further, Kawleski validated the test when she
established the benchmarks for the test. (One method of validating a
test is to have a supervisor of the position or someone who is
knowledgeable in the field review the test.) The test results basically
demonstrate the grievants do not possess the knowledge of accounting
principles the City established was necessary as a minimum qualification
for the position. A fact also demonstrated by the grievant's own
admissions that they do not have the Associate Degree in Accounting nor
two years accounting experience. In effect the test validated the
City's assessment of the grievant's background and experience.
Therefore, based upon the above and foregoing and the arguments,
evidence and testimony presented the undersigned concludes the City did
not violate the collective bargaining agreement when it failed to select
Kaiser or Schanke for the vacant Accounts Payable position. The
grievance is therefore denied.
"The City did not violate the collective bargaining agreement when
it fail to select Sue Kaiser or Tamara Schanke for the vacant Accounts
Dated at Madison, Wisconsin this 29th day of June, 2001.
Edmond J. Bielarczyk, Jr., Examiner