BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
AFSCME LOCAL 332A
(Laurie Kriewald Victim/Witness Coordinator Grievance)
Mr. Phil Salamone, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing
on behalf of the Union.
Mr. John Mulder, Administrative Coordinator, Lincoln County,
appearing on behalf of the County.
AFSCME Local 332A, herein the Union, requested that the Wisconsin Employment
Commission appoint a staff arbitrator to hear and decide a dispute between the parties. The
concurred in the request and the undersigned, Steve Morrison, was designated as the
Hearing was held in Merrill, Wisconsin, on February 6, 2001. There was no stenographic
made of the hearing. The parties submitted post-hearing briefs on April 16, 2001.
The parties stipulated that there were no procedural issues and were also able to
the following issues:
Did the County violate the collective bargaining agreement
it did not award the position
of Victim/Witness Coordinator to Laurie Kriewald and did it further violate the collective
agreement by increasing the qualifications for this position? If so, what is the proper
The position of Victim/Witness Coordinator has existed in Lincoln County for a
years. It was initially a part-time position working with the Crime Victim/Witness Support
A high school education and no experience were required. Over the years, changes in State
reclassifications of the position by the Lincoln County Board of Supervisors expanded the
responsibilities of the position. Today, the Victim/Witness Coordinator is a full time
directs Lincoln County's Victim/Witness Assistance Program assuring the delivery of
guaranteed services to victims and witnesses of crimes. The position serves as the District
advisor relating to victim/witness matters, prepares victims and other witnesses for court
acts as a liaison with prosecutors, law enforcement, court personnel, community agencies and
units of government and generally assists victims and witnesses of crimes, and their families,
physically and emotionally through rehabilitation. Additionally, the position coordinates the
relations activities of the District Attorney's office and participates in the formation of
recommendations and lobbying for crime victims.
On September 13, 2000, the County posted the Victim/Witness Coordinator position
what had become a vacancy, which posting stated in pertinent part:
Full time position in the District Attorney's
Office. Under the general direction of the District
Attorney, will organize, administer, and operate the Lincoln County Victim/Witness
Progam [sic], providing for the needs of and protecting the rights of victims and witnesses of
Will serve as the District Attorney's advisor on victim/witness matters. Will assist victims in
preparation for court appearances. Will determine emotional and rehabilitative needs of
their families. Will assist victims in applying for appropriate financial assistance. Will act
with prosecutors, other units of government, law enforcement personnel, court personnel,
community agencies. Will coordinate public relations activities of the District Attorney's
including public speaking, media presentations, and the design and drafting of brochures.
participate in forming legislative recommendations and lobbying for crime victims.
Bachelor's Degree in Criminal Justice,
Sociology, Psychology, or a related field, with three to
five years criminal justice experience, or any combination of education, training and
provides equivalent knowledge, skills, and abilities. Must have ability to communicate
with crime victims and witnesses, attorneys, District Attorney support staff, social workers,
and parole officers, legislators, law enforcement personnel, court personnel, community
general public, and others verbally and in writing.
. . .
Laurie Kriewald, the Grievant, was the only internal employee to apply for the
was granted an interview on September 18th with the County's
Administrative Coordinator, John
Mulder. Kriewald had been employed by the County as the Deputy Clerk of Courts for the
one-half years preceding her interview. She has an Associate Degree in Business Marketing
limited experience within the criminal justice system resulting from her position as Deputy
Courts. Following her interview, the County determined that she did not meet the general
qualifications for the position and it placed an outside ad. In the interim, and pending the
of a qualified Victim/Witness Coordinator, the County hired an LTE to perform some of the
routine functions of the position while the District Attorney took over the functions requiring
and criminal justice experience.
ARTICLE 1 - RECOGNITION
The Employer recognizes the Union as the exclusive
representative for the purpose
of conferring and negotiating with the Employer and its authorized representatives on
wages, hours, and conditions of employment for all regular full-time and regular part-time
in the Lincoln County Courthouse and Safety Building (including Correctional Officers,
Telecommunicators, and Solid Waste Department employees), Health and Human Services
(including Commission on Aging employees and Health Department employees), the Merrill
Courthouse Annex and the Tomahawk Courthouse Annex, as well as the Program Assistant
Clerk in the Highway Department, excluding elected officials, supervisory, managerial, and
confidential employees, professional employees and all other employees including those in
bargaining units (Decision #20687, certified by the WERC).
ARTICLE 2 - MANAGEMENT
2.01 The County possesses the sole right to operate County
Government and all management
rights repose in it, subject only to the provisions of this Agreement and applicable law.
include, but are not limited to the following:
To direct all operations of
To establish reasonable
To hire, train, promote,
transfer, assign and retain employees;
To suspend, demote,
discharge, and take other disciplinary action against employees for just
To lay off employees from
their duties because of lack of work or any other legitimate cause;
To maintain efficiency of
department operations entrusted to it;
To take whatever actions as
necessary to comply with state or federal law;
To introduce new or
improved methods or facilities;
To change existing methods
To manage and direct the
working force, to make assignments of jobs, to determine the size
and composition of the work force, and to determine the work to be performed by
To utilize temporary,
part-time or seasonal employees when deemed necessary; provided such
employees shall not be used for the purpose of eliminating existing positions;
To determine the methods,
means and personnel by which operations are to be conducted.
Any unreasonable exercise or application of the
above-mentioned management rights which
are mandatorily bargainable shall be appealable through the grievance and arbitration
however, the pendency of any grievance or arbitration shall not restrict the right of the
continue to exercise these management rights until the issue is resolved.
ARTICLE 5 - GRIEVANCE
. . .
. . .
6. Decision of the
The decision of the arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to the interpretation of the contract in
where the alleged breach occurred. The arbitrator shall not modify, add to, or delete from
of the Agreement.
ARTICLE 11 - JOB POSTING TRANSFERS
. . .
11.02 Posting Vacancy: In the event a permanent
job vacancy occurs, notice of such vacancy
shall be posted for five (5) working days, not counting the first day. During this time,
bid for such job by signing the job posting. Employees may sign the job posting at the
Coordinator's office instead of signing the job posting. In addition, employees on leave of
shall be mailed to, last known address a copy of any job posting, and should any such
to post for the job, they shall do so by certified mail to be postmarked within five (5) days of
of the mailing of the original posting.
At the end of the posting period, the job
shall be awarded to the most senior qualified
applicant. If there is any dispute as to qualifications of an employee, the affected employee
the matter up for adjustment under the grievance procedure.
. . .
11.03 In the event none of the applicants qualify for the
position, the Employer must then
offer the position to employees on layoff who are qualified, beginning with the most senior
on layoff. If there are no qualified applicants and no qualified employees on layoff, the
then advertise publicly to fill the position.
11.04 Employees who receive a posted position shall be
considered on probation in the new
position for a period of ninety (90) days. During that
period should the employee not qualify or should the employee so
desire, he/she shall be
reassigned to his/her former position without loss of seniority. After successfully completing
probationary period, the employee shall be permanently assigned to the new position. A
bidder shall not be eligible to bid for a new position until after serving ninety (90) days on
The County may reduce the probationary period if it is determined that the employee
qualifies for the position.
. . .
POSITIONS OF THE PARTIES
The Union argues that the County may not hire an applicant from outside of the
unit if a bargaining unit member is minimally qualified for the position and posts for it. This
says the Union, even if the outsider is more highly qualified than the bargaining unit
contends that the burden of proving why the senior bidder was not selected is generally borne
employer. The Union further argues that the employer has acted unreasonably and has
certain provisions of the collective bargaining agreement by unilaterally increasing the
qualifications for the Victim/Witness Coordinator position to include a Bachelors Degree in
specific fields along with some level of experience in the criminal justice system. It asserts
requiring these minimum qualifications, the County has elevated the job to the status of
thus, effectively removing it from the bargaining unit and creating what the Union refers to
as a "glass
ceiling" for the membership since no other members have degrees and would, consequently,
unqualified. It also maintains that this action violates the past practice of the parties and that
Grievant should have been given an opportunity to demonstrate her ability to do the job
"trial period" provision of the collective bargaining agreement even if her qualifications were
The County argues that it had the right to establish minimum qualifications for this
and that the qualifications it established were reasonably related to the duties and
the job. It contends that the Grievant failed to meet those minimum qualifications and was
offered the job for that reason.
Laurie Kriewald was granted an interview by the Lincoln County Administrative
for the position of Victim/Witness Coordinator. During this interview, she was given ample
opportunity to demonstrate her qualifications for the position. The job posting
stipulated that a bachelor's degree in Criminal Justice, Sociology, Psychology or a
related field, along
with three to five years experience in the criminal justice system or any combination of
training and experience providing equivalent knowledge, skills, and abilities, among other
constituted the qualifications required to be considered a successful applicant. During the
the County Administrator learned that Kriewald's post-secondary education consisted of an
associate's degree in Business Marketing; that she had no formal training or other experience
of the academic areas specified; and that her experience in the criminal justice system
three and one-half years as the Deputy Clerk of Courts. The Administrator concluded that
not qualified and she was not awarded the position. The record supports that decision.
The threshold question is whether the County has the right to establish minimum job
requirements. The answer is that it does unless the bargaining agreement contains express
limiting it. The Union argues that given a choice between "two qualified employees," the
clause contained in Article 11 works to deny the job to an outsider in favor of the senior
This is true, but the two applicants must first both be "qualified." Kriewald was
not qualified and so
the seniority clause in Article 11 was never invoked.
The next question is whether the County's minimum job requirements were
is to say that the qualifications must relate sufficiently to the job duties and responsibilities
they not be arbitrary or capricious. The Union agrees that employers have the unilateral
make reasonable increases in the requirements for any given position but argues that the
requirement for a bachelor's degree in Criminal Justice, Sociology or Psychology was
The record does not support the Union's conclusion. The County presented a rational basis
requirement of a bachelor's degree (or any combination of education, training and experience
provides equivalent knowledge, skills and abilities) and for additional experience in the
justice area. The Victim/Witness Coordinator is charged with evaluating the emotional and
rehabilitative needs of victims and their families and with protecting the rights of victims and
witnesses. The position works closely with the District Attorney as an advocate for the
the District Attorney seeks the Coordinator's opinion as such. The District Attorney testified
she needs an individual who does not need on-the-job-training and can work from the outset
to prepare the case. She testified that she relies on the Victim/Witness Coordinator to give
objective analysis of the witnesses during trial preparation and that they prepare for trial
This type of objective approach is valuable to her. The District Attorney testified that this
must know the procedures inherent in the criminal justice system and have the ability to
the public relations functions of the District Attorney's office; that it must have the polished
to act as liaison with the prosecutor's office, other units of government, law enforcement and
community agencies and must participate in the formulation of legislative recommendations
lobbying for crime victims, all of which, the County reasonably determined, would be better
accomplished by a person with formal education in one of the areas specified and with hands
experience working within the criminal justice system.
Thus, because the qualifications were reasonable and the Grievant did not possess those
qualifications, the County did not violate the terms of the contract when it failed to offer the
As for the Union's argument that the actions of the County have elevated the job to
of professional, the undersigned does not have the authority to decide that issue. The proper
is with the full Commission and the appropriate proceeding is one for unit clarification.
There is no
evidence in the record of bad faith on the part of the County or any action on its part to
integrity of the unit.
The Union argues that Kriewald should have been given the opportunity to
ability to do the job under the "trial period" provision found in Article 11. That provision
"Employees who receive a posted position shall be considered on probation in the new
a period of ninety (90) days." In order to "receive a posted position," one must first meet
qualifications for that position. Kriewald was not qualified at the time of the interview nor
have become qualified in the 90-day trial period under Article 11. This provision does not
the instant situation.
Finally, relative to the Union's assertion that the County's actions violate past
is no evidence of a past practice in this record which would require the County to waive the
requirements for this position.
In light of the above, it is my
That the County did not violate the collective bargaining agreement when it did not
position of Victim/Witness Coordinator to Laurie Kriewald and that it did not violate the
bargaining agreement by increasing the qualifications.
Dated at Wausau, Wisconsin, this 16th day of July, 2001.
Steve Morrison, Arbitrator