BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ONEIDA COUNTY COURTHOUSE
LOCAL ASSOCIATION NUMBER 158,
Mr. Mark R. Hollinger, Attorney at Law, Katarincic &
Hollinger, LLC, 205 East Wisconsin Avenue, Suite 330, Milwaukee, WI 53202, appearing
on behalf of the Union.
Mr. Carey L. Jackson, Labor Relations and Employee Services
Director, Oneida County, Oneida County Courthouse, P.O. Box 400, Rhinelander, WI
54501-0400, appearing on behalf of the County.
The Union and the Employer named above are parties to a 1998-2000 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
requested the Wisconsin Employment Relations Commission to appoint the undersigned as
arbitrator to resolve the grievance involving a position held by Bernie Wanty. A hearing was
August 14, 2001, in Rhinelander, Wisconsin, at which time the parties were given the
present their evidence and arguments. The parties completed filing briefs by October 22,
The parties did not stipulate to the framing of the issue. The issue is:
Did the County upgrade or reclassify the position of Bernie
Wanty? Should Wanty have been
placed on the wage scale at grade 7, year 1 or year 2?
Bernie Wanty was hired in 1997 as an Assistant Maintenance Technician. The job
general maintenance and custodial duties. The County also has a position called Maintenance
Technician, held by James Keso. Wanty was doing more of the technical work, such as
maintenance, electrical work and construction. In August of 2000, Wanty talked to his
Curt Krouze, about the work he was doing which was beyond his duties as Assistant
Technician. Krouze agreed with Wanty that if he was doing the work, he should be
Krouze was Wanty's supervisor for about two and a half years. When Krouze
that Wanty was handling higher level tasks, he went to the Building and Grounds Committee
discussed the matter of Wanty's position and his work. Krouze learned that the Maintenance
Technician was giving Wanty the tasks that Krouze was assigning to him. Wanty was
handle the majority of the higher level functions. Keso was handling the majority of the
the Assistant Maintenance Technician due to a medical condition and a lack of training.
getting close to retirement, and he declined an offer from Krouze for the training for the
tasks. The Building and Grounds Committee met with the Personnel Committee, and they
upgrading Wanty's job to a Maintenance Technician while down grading Keso's job to an
Maintenance Technician. The Building and Grounds Committee passed the matter on to the
Personnel Committee with the recommendation that those jobs be upgraded and downgraded
On January 23, 2001, the Personnel Committee approved upgrading Wanty's position
Maintenance Technician position and down grading Keso's position to an Assistant
Wanty did not use the contractual process to seek a reclassification, and was
Krouze initiated the change in his position. Wanty did not file a grievance over his
placement on the
Krouze thought that after the upgrade, Wanty should be placed at year 1 because it
promotion. Krouze did not want Wanty to be placed at the probation rate, because Wanty
performing those duties for nearly a year. Krouze and Personnel Director Carey Jackson
the appropriate placement for a wage rate and agreed on the placement. Krouze considered
a promotion process, but did not want to use that process because Wanty would have had to
the probationary wage rate or hire rate.
The contract language in Article 6 regarding reclassifications and upgrades came into
parties' agreement in a consent arbitration award in 1995, and the language has not changed.
Association filed a grievance over the implementation of the language, and in May of 1996,
parties reached a letter of agreement to settle the grievance. The letter of agreement states
employees who are reclassified or promoted are placed into the wage schedule, but it does
Lisa Charbarneau has been the Administrative Assistant to the Personnel Director for
eight years. She testified that in 1996, Income Maintenance Workers asked for a
Jackson prepared a report dated August 6, 1997, which recommended that a reclassification
place but that an upgrade was warranted. Jackson's report stated that a reclassification was
appropriate as there had not been a substantial increase in duties and responsibilities
the positions. He found an upgrade to be appropriate because Income Maintenance
performing the same work as Income Maintenance Workers, the wages in comparable
justified the upgrade, and most of the other Counties had changed the title of Income
positions to Economic Support. The positions were in fact upgraded. In 1997, Income
Workers were at grade level 4, year 3 at $9.78 per hour. Following the upgrade to
Support Specialists, the same people were at grade 6, at the hire rate of $10.36. If those
positions had been reclassified, they would have gone to grade 6, year 3 at $11.48.
Charbarneau testified that the major difference between a reclassification and an
that the upgrade does not necessarily mean that there has been a substantial change in duties,
the standard for a reclassification is that there must be a substantial change in duties. In the
Income Maintenance Workers, their duties did not change. Another difference is that the
Board of Supervisors is not involved in decisions to upgrade or downgrade a position. Both
processes of reclassifications and up or down grading jobs involve positions rather than
Jackson testified that upgrades may be based on other factors, such as the need in this case to
positions because of a medical condition. Another distinction is that reclassifications do not
In 1997, the Landfill System Technician was at grade level 5, year 3 at $10.78. His
was upgraded in 1998 to grade level 8, hire rate of $10.84. If his position been reclassified,
have been at year 3 in grade level 8 at $11.64.
The Property Mapping Technician was at grade 8, year 5 at $11.77 in 1997. His
upgraded in 1998 to grade 11, hire rate of $12.28. If the position had been reclassified, he
have been at year 5 at $13.84.
The Payroll/Purchasing Clerk was at grade 5, year 3 until she was upgraded in 1998
7, year 1 at $10.61. If she had been reclassified, she would have been at year 3 for $11.13.
Charbarneau was not aware of any other upgrades since 1998. The Association met
Jackson over the upgrades noted above. Jackson offered the Association the opportunity to
discuss the wages of Wanty. The parties did not meet to discuss Wanty's wages.
THE PARTIES' POSITIONS
The Union argues that the contract draws a distinction between the reclassification of
individual employee from one position or occupation to another, versus the upgrade or
of an entire position. When an individual employee believes that there has been a substantial
in his/her duties and responsibilities, he/she is permitted to initiate the reclassification
Although reclassification and upgrade and downgrade are at times used in a confusing
fashion, the distinction between the two concepts is clear.
The Union states that in the reclassification process, the employee is either
reclassified to a
higher salary grade or remains at his/her existing wage rate. Section I, Parts 1-7 of Article 6
no mention of moving downwards or demoting an employee. Reclassification decisions are
subject to the grievance procedure, and no union would ever allow an employer to have the
right to demote bargaining unit members without an appeal to the grievance process. While
County is not explicitly authorized to initiate the reclassification process, it is not barred
so, and did so in this case when Krouze initiated Wanty's reclassification process.
The Union asserts that the contract language dealing with upgrades and downgrades
to reviewing a position, and that unlike reclassifications, a position or occupation can be
The incumbent employee in a downgraded position suffers no reduction in pay. The contract
anticipates that a position may not have an incumbent employee, unlike the reclassification
The Union contends that the County's definitions of reclassification versus upgrade
contrary to the plain meaning of the contract. While the County claims it upgraded Wanty as
individual, it reclassified him because it decided he was actually doing the work of a
Technician. Such a reclassification requires that he be paid at grade 7, year 2, pursuant to
Side Letter of Agreement which this arbitrator previously affirmed. The Side Letter makes
distinction between County initiated reclassifications as opposed to employee initiated
reclassifications. All reclassifications are to receive the same treatment.
The Union notes that if the County claims it's an upgrade because it initiated the
opposed to an employee initiating the process, it would be a race to have all employees seek
reclassifications in order to avoid having the County place them where it wants on the wage
While Krouze claimed that Wanty was really promoted, there was no job posting. It appears
Union that the County wanted to demote Keso and reclassify Wanty without dealing with
a performance issue. If downgrades apply to individuals, the County has a loophole by
which it can
demote or discipline without proving the reasonableness of its actions. It is bad enough that
County can downgrade a position and the Association has no grievance recourse. If the
cannot demote or downgrade
individual employees, it cannot upgrade individuals either. While the County may
argue that a
downgrade is not in fact discipline because the incumbent employees receive the same pay,
pay is not
the only aspect of a demotion to consider.
The Union asserts that the County does not have a binding past practice to support its
definitions of reclassification and upgrade. The contract is not so ambiguous or unclear so as
it susceptible to modification by past practice. Although the wording of Article 6, Section I,
1-7 is at times ponderous and confusing, the intent of the parties with respect to the
between reclassification and upgrade/downgrade is clear and unambiguous. On County
Jackson lumps reclassification and upgrade together as if they are interchangeable and
which is contrary to the County and Union's interpretation. It shows how inconsistent the
has been as to the interpretation of this contract provision.
Moreover, the Union argues, since the County upgraded the positions of Income
Workers and knew it had to negotiate wages for the positions, it was also incumbent upon
to negotiate a wage for Wanty if his position were upgraded. This was not done because he
reclassified from one position to another. All of the positions in County Exhibits #16-19
negotiated and do not authorize the County to take similar actions unilaterally.
The County first points out that the Union had contended that the term upgrade and
reclassification meant the same thing. The Union has the burden to prove that they are the
County agrees with Union regarding the matter of pay -- if Wanty were reclassified, he
placed at year 2 as the Union contends. If the two terms are not the same in meaning and
then the County has to act reasonably in placing him on the wage scale.
The County submits that the dictionary definitions of the terms are different.
Upgrade is to
promote to a higher grade or rank. Reclassification is to classify anew. A reclassification
in a grade level increase, decrease or lateral transfer. An upgrade can only result in a grade
increase. By contract language, a reclassification request only occurs when an employee
his/her job has substantially changed in duties and responsibilities and submits a request for a
Wanty did not request a reclassification. However, an upgrade does not have to have a
change in duties and responsibilities and it does not require an employee request. Moreover,
process for an upgrade is less restrictive in its procedure and involves fewer people. The
approval for a reclassification is the County Board of Supervisors, while the final approval
upgrade is the Personnel Committee.
The County states that the contract is silent as to wages during an upgrade. This is
flexibility to take into account the variables of each case. When the County upgrades a
sets a wage placement, it must offer to meet with the Union to negotiate that wage
is nothing that says the Union must meet with the County. The Union refused to negotiate
rate of pay following the position upgrade. Even if the Union disagreed with the County's
that this was not a reclassification, the Union should have met with the County on the wage
The County argues that the historical data supports its case. The consent award
the reclassification procedure into the contract, and there have been no changes since then.
December of 1996, employees of the Social Services Department requested that their
reclassified. The process was performed in accordance with Article 6, Section 1, Parts 1-7.
recommendation of the Personnel Director was that a reclassification was not warranted as
not a significant change in duties and responsibilities, but an upgrade was appropriate
different classes of employees were doing the same work, a name change was justified for
of work, and the market data showed that these employees should be paid more money. The
did not file a grievance to claim that the employees should be reclassified rather than
it met with the County to properly pace the positions on the wage scale. The County also
and upgraded three additional positions, and the Union did not file a grievance and claim that
reclassification and upgrades were the same thing. Instead, the Union met with the County
the upgraded positions on the wage scale. In each case, the parties agreed to place the
at a wage rate different than what they would have received if the actions were the result of
Therefore, the County contends, the parties have clearly made a distinction between
reclassification and upgrade. Historically, the Union has been willing to meet with the
establish the wage level when an upgrade occurs. Since the Union refused to meet with the
in this case, it should not complain now about the County's wage placement.
The County submits that it acted in a reasonable and responsible manner in setting
wage placement. It found out that he was performing isolated tasks of the Maintenance
position and it gave him credit for six months prior to learning this by placing him at year 1
wage scale. No one provided evidence that he was performing those tasks in February of
prior decision by this arbitrator in the Darges case has no bearing on the present case. The
made no judgments about upgrades and wage placements under such an event. The Side
Agreement applied to reclassifications.
The contract language at issue here is lengthy, but bears repeating here. Article 6
Promotions Reclassification Layoff, Section I, states:
Section I: The County shall have the right to
initiate reclassification procedures as described
at the end of this section. The following steps shall be followed when an incumbent
1. When an incumbent employee believes
that his/her job has substantially changed in duties and
responsibilities, he/she shall make a written request to their Department Head as well as the
designated Courthouse Association Reclassification Committee asking them to review the
classification. If the Department Head and/or Association Committee find that the
request is appropriate, the request will be forwarded to the appropriate Committee of
their review. Included in the request shall be supporting documentation justifying the
factors to be considered may include, but are not limited to, typical duties performed,
requirements, complexity of work, the extent of supervision or guidance provided, the
degree of knowledge and skills required, mental requirements, responsibility for public
responsibility for decision making, supervisory responsibilities, and working conditions.
2. The Personnel Office will in all
instances, prepare up-dated job descriptions with the
cooperation of the employee and the Department Head.
3. The Committee of Jurisdiction will
review the request and will make a determination as to
whether or not to forward the request to the Personnel Committee. The decision of the
of Jurisdiction shall be recorded in the Committee's minutes. A copy of those minutes shall
forwarded to the Personnel Office. When a Committee of Jurisdiction forwards a
request to the Personnel Committee with a recommendation that a study of the position be
a copy of all documentation on the request shall accompany the request. If the Committee of
Jurisdiction decides not to forward the request to the Personnel Committee, the Department
shall notify the incumbent employee of the reasons for that denial in writing.
4. Upon completion of the study by the
Personnel Director, the employee, union rep, and
Department Head shall meet with the Personnel Committee regarding the request. All parties
be afforded the opportunity to present pertinent information to the Committee.
5. After listening to the parties, the
Personnel Committee shall go into closed session to discuss
what they have heard and to review materials. The Personnel Committee shall return to
to make their decision. This decision shall be communicated in writing to the employee, the
Association, the Department Head and the Chairperson of the Committee of Jurisdiction.
mutually agreed otherwise in writing, the Personnel Committee shall make a decision not
forty-five (45) days from receiving the request.
6. When necessary, the Personnel
Committee shall submit a resolution to the Oneida County
Board of Supervisors for consideration.
7. The decisions of the Personnel
Committee and/or County Board of Supervisors are final and
shall not be subject to the grievance procedure.
The County has the right to review all positions to determine their
proper classification. County
initiated reviews of positions shall be handled by the Personnel Director in the manner he/she
most appropriate. Should the County initiate a review of a position, the Department Head
incumbent employee, if there is one, shall be notified and shall participate in the
of the position. Upon completion of the investigation, the Department Head and incumbent
employee, if there is one, shall be notified of the findings and recommendation of the
Director. The Personnel Committee has the authority to up-grade and down-grade positions
deems appropriate. The Personnel Committee's decisions in this regard shall not be subject
grievance procedure. However, no incumbent shall suffer a reduction in wages caused by
down-grading a position. In addition, the incumbent shall receive whatever raises are
contract negotiations unless agreed otherwise during such negotiations. This agreement does
infringe upon the County's right to create or delete positions as covered under Article 7
Rights of Management as found in the current courthouse union agreement.
While the Union argued at hearing that there was no distinction between a
an upgrade, it has acknowledged in its post-hearing brief that there is such a distinction, but
a distinction between incumbent employees and positions. Essentially, the Union argues that
employees are reclassified while positions are upgraded or downgraded. This is not the case
circumstances, it is positions that are either reclassified or upgraded or downgraded.
The contract language dealing with the reclassification procedure refers to positions in
instances. In Article 6, Section I, Part 2, the contract calls for updated job descriptions.
new job descriptions apply to positions, not individuals, and the new job descriptions remain
incumbent employees leave those positions. In Part 3, the language again refers to "a study
It would be a strange position indeed for the Union to argue that once an employee is
reclassified, the position is not also reclassified. Under that scenario, once the incumbent
position would go back to what it was before the employee received the reclassification, and
employee in that position would not be getting the same duties and responsibilities that
reclassification in the first place. Surely, the Union would find itself in the odd circumstance
having to argue that the new person should have the higher classification also
without having to go
through a reclassification procedure. Duties and responsibilities stay with a position and
due to the loss of an incumbent employee in that position.
The parties argue over the past practice and the Union asserts that the contract
clear enough so that no past practice applies. However, the Union admits that the language
sometimes confusing which is really an admission that the language is not so clear
unambiguous. The Arbitrator would find that while the language is ambiguous enough to
look to past
practices, she is reluctant to find a binding past practice based on the short
period of time that this
language has been in place and interpreted. It is generally accepted that past practices must
unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable
of time as a fixed and established practice accepted by both parties. There are four prior
since 1997, and while they all favor the County's interpretation, they do not amount to the
binding past practice simply due to the short period of time involved. The Union acquiesced
County's interpretation, again favoring the County's position in this case. However, four
1997 and 1998 do not meet the criteria of a reasonable period of time as a fixed and
practice. Nonetheless, the way the County has used the language of Article 6 tends to
position in this case.
Furthermore, the unrebutted testimony of Charbarneau and Jackson confirmed that in
upgrades or reclassifications, the County was looking at positions and not individuals. Thus,
on the testimony and evidence, the parties' past practice, and the contract language, the
reclassification procedure as well as the upgrade/downgrade procedure apply to positions, not
While the Union fears that the County could use the process to downgrade a position
effect demote an employee as a disciplinary measure, that case is not before me. If the
to use a demotion as a disciplinary measure, the Union could grieve the matter as it can
In determining whether a position has been reclassified or upgraded, it is not so much
process used as the end result that tells the story. For example, the Income Maintenance
asked for a reclassification, but the end result was an upgrade based on the recommendation
Personnel Director. This was consistent with Article 6, Section I, Paragraph 4, which calls
study by the Personnel Director. In the case of either reclassifications or
Personnel Director makes recommendations.
The County used the process specifically noted in Article 6, Section I, where the
Committee has the authority to upgrade and downgrade positions as it deems appropriate, and
decisions are not subject to the grievance procedure. It used this process to help solve an
circumstance. If Wanty and Keso had simply switched positions, Keso would have suffered
a pay cut.
Since he was nearing retirement and had a medical condition that kept him from performing
aspects of his position, and Wanty was performing that work, the County could help both
by using the upgrade and downgrade process. Moreover, it was not a matter of simply
Wanty's position because a reclassification would have created two positions of
Technician, where the County only needed one such position.
The parties agree how reclassifications are to be treated on the wage schedule. Since
contract does not address the placement on the wage schedule of positions upgraded or
the County placed Wanty on the schedule where it thought appropriate but also gave the
opportunity to negotiate over the wages. The Union should not now complain about the fact
Wanty's position was placed on the salary schedule without the placement being negotiated,
the Union had the chance to bargain over the wage placement but declined to do so. It could
done so while still reserving its right to argue that the action was a reclassification instead of
Based on the record, I find that Wanty's position was upgraded but it was not
and that the placement of Wanty's wages at grade level 7, year 1 does not violate the
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin this 4th day of January, 2002.
Karen J. Mawhinney, Arbitrator