BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN COUNTY PLEASANT VIEW HOME
LOCAL 1162, WCCME, AFSCME, AFL-CIO
(PLEASANT VIEW NURSING HOME)
Mr. Thomas Larsen, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of Green County Pleasant View Home Employees, Local
1162, WCCME, AFSCME, AFL-CIO.
Mr. William E. Morgan, Corporation Counsel, on behalf of
Green County Pleasant View Home Employees, Local 1162, WCCME, AFSCME,
hereinafter the Union, requested that the Wisconsin Employment Relations Commission
staff arbitrator to hear and decide the instant dispute between the Union and Green County,
hereinafter the County, in accordance with the grievance and arbitration procedures contained
parties' labor agreement. The County subsequently concurred in the request and the
David E. Shaw, of the Commission's staff, was designated to arbitrate in the dispute. A
held before the undersigned on June 21, 2001, in Monroe, Wisconsin. There was no
transcript made of the hearing and post-hearing briefing was completed by August 9, 2001.
upon the evidence and the arguments of the parties, the undersigned makes and issues the
The parties stipulated there are no procedural issues, but were unable to agree on a
of the substantive issues and agreed the Arbitrator will frame the issues.
The Union would state the issues as follows:
Did the Employer violate the collective bargaining agreement by
failing to grant the Grievant the
Kitchen (Dietary) position she applied for in conjunction with the Housekeeping/Linen
so, what is the appropriate remedy?
The County states the issues as being:
Did the County violate Section 9.01 of the collective bargaining
agreement by not giving due
consideration to the Grievant's seniority? If so, what is the appropriate remedy?
The Arbitrator concludes that based upon the two grievances and the arguments of the
that the issues are more accurately stated as follows:
(1) Did the County violate the parties' Collective
Bargaining Agreement when it posted the
Food Service Worker 1 day/week position and the Housekeeping/Linen 4
position as separate positions, rather than as one combined full-time position? If so, what
is the appropriate remedy?
(2) Did the County violate the
parties' Collective Bargaining Agreement when it did not
award the Food Service Worker 1 day/week position to the Grievant? If so, what is
The following provisions are cited:
ARTICLE 2 MANAGEMENT RIGHTS
2.01 The Union recognizes the rights and
responsibilities belonging solely to the County,
prominent among, but by no means wholly inclusive are the right to hire, promote, discharge
or discipline for cause. The right to decide the work to be done, and the location of the
The Union also recognizes that the County retains all rights, powers and authority that it had
prior to this Agreement except as modified by this Agreement. Reasonableness of
management's decisions are subject to grievance procedure. However, the provisions of this
Article shall not be used for the purpose of undermining the Union or discriminating against
any of its members. 1/
1/ This wording from the parties' 1999-2000
Agreement (Joint Exhibit No. 1) differs from that cited by the County in its
. . .
ARTICLE 4 SENIORITY
4.01 Seniority rights shall prevail at all times during
the life of this Agreement provided skill and
ability are reasonably equal.
. . .
ARTICLE 9 JOB POSTING
9.01 All vacancies for existing or newly created
full-time jobs or full-time shifts shall be posted for
at least seven (7) working days. Any employee who possesses the required qualifications
established by the employer may sign such a posting. For other vacancies in existing or
created job openings or shifts, the following procedure shall be followed:
1. The vacancy shall be posted for at
least seven (7)
working days, and employees will be
permitted to bid on such vacancy. The posting will advise that a copy of the job
description is available.
2. If, as a result of filling the
primary vacancy, another vacancy is created (because a present
employee has bid into the initial vacancy), normal job posting procedures will be
followed [i.e. the secondary vacancy will be posted for seven (7) days, and employees
will be permitted to bid on such vacancy].
3. Any remaining job vacancies
created by the primary and secondary posting may be filled in
a manner determined by the Employer. An up to date listing of such vacancies shall
be posted. The Employer shall maintain a listing of the vacancies it intends to fill.
Current employees who are interested in the remaining jobs should make their
interests known to the respective supervisors for consideration for the position. If the
Employer elects to post such vacancies, normal posting procedures will be followed.
The Employer shall select from among signatories an
to fill the new or vacated job.
Equal consideration shall be given to seniority and qualifications in making such promotions.
If an individual assumes a new position under this section, he/she shall be ineligible to sign
another job posting for a period of three (3) months from the time he/she assumes said new
position. However, this restriction does not apply to
an employee who may have had an
opportunity to post into a new position which results in
increased hours, increased wages or better hours (e.g. nights to pm's, pm's to days) than
9.02 An employee awarded a job shall be given a fair
trial for a period not to exceed thirty (30)
days, but if it shall, at the end of thirty (30) days, be decided by the Employer that such
employee is not qualified or adapted to the new position, he/she shall be returned to his/her
old position without loss of seniority. If, at the end of the thirty (30) day trial period, the
employee desires, he/she shall be returned to his/her old job without loss of seniority.
. . .
The County owns and operates the Green County Pleasant View Nursing Home. The
is the exclusive collective bargaining representative for "all employees" of the Home,
supervisory, confidential, craft and professional employees.
The Grievant has been employed at the Home for 17 years. Her first three years at
she was employed part-time (2 days a week) in Food Service, where her duties included,
others, working on the food line, placing trays on the carts, placing coffee, milk, etc. on the
running the dishwasher. Since then, the Grievant became employed full-time, currently
a Housekeeper. As a Housekeeper, the Grievant's duties include mopping floors, dusting,
cleaning the bathrooms in residents' rooms. She also does some laundry work in the
works five days a week, working every third weekend.
On November 29, 2000, the positions of "Food Service Worker 1 day/week"
"Housekeeper/Linen 4 days/week" were posted. The postings were on one sheet and
statement at the bottom that "The two above positions have been combined in the past to
full time position and can be again. . ." Employees were permitted to sign both postings.
The "Food Service Worker" position is in the Dietary Department and the Supervisor
Rebecca Brown. The "Housekeeper/Linen" position is in the Housekeeping/Linen
the Supervisor is Avis Lueck. Both positions are in the lowest pay grade and have the same
wage rate. The Food Service Worker (FSW) position actually works Saturday and Sunday,
The Grievant signed both postings. Employees are paid double time on Sundays.
Grievant wanted the two jobs so that she would be working the same number of hours (80) in
period as in her current position, but would work every other Sunday, instead of every
third Sunday. There are also overtime opportunities in the Dietary Department, which
generally available in Housekeeping/Linen.
The Grievant was the most senior employee (172 months) to sign for the FSW
second most senior employee to sign for the Housekeeper/Linen position, until the most
employee withdrew her name.
Prior to this posting, the same person held both the FSW 1 day/week position and the
Housekeeping/Linen 4 days/week position for approximately four years. Prior to that time,
person had not held both positions.
The Grievant did not get the FSW position; rather, it was awarded to two part-time
Service employees who were the two least senior bidders, Anderson and Steitz. At their
hours were split between the two of them. Anderson had 61 months of seniority, all of them
in Food Service. Steitz had 15 months of seniority, all working in Food Service, and also
works part-time as a cook and food service supervisor for an area school district. Anderson
has filled in as a
Cook's Helper and Steitz has filled in as a Cook's Helper and as a Cook.
Lueck asked the Grievant if she was still interested in the Housekeeping/Linen
the FSW position had been awarded to Anderson and Steitz, and the Grievant indicated that
not interested in the Housekeeping position without the FSW position. Lueck testified that
prepared to give the Grievant the job if she wanted it. As everyone else had withdrawn their
the position was awarded to the least senior bidder.
The Union timely grieved the awarding of the FSW position to less senior employees
Grievant, and subsequently also grieved posting the positions separately instead of as one
position. The parties attempted to resolve their disputes through their grievance procedure,
unsuccessful and proceeded to arbitration before the undersigned.
POSITIONS OF THE PARTIES
The Union initially notes that the Grievant signed for both the FSW 1 day/week and
Housekeeper/Linen 4 days/week postings and ultimately was the most senior applicant in
(the more senior applicant for the Housekeeper/Linen position having withdrawn from
Upon being advised that she was not granted the FSW position, the Grievant declined the
offer of the
Housekeeping/Linen position as it would have resulted in her going from a 5 day a week
Housekeeper position to 4 days per week.
The Union asserts that Section 9.01 of the Agreement provides that equal
be given to seniority and qualifications. In this case, it is clear that the Grievant was by far
senior of the applicants for the positions. As the testimony of Leuck makes clear
that the Grievant would have received the Housekeeper/Linen position, it is the FSW
is in dispute.
The Dietary Department includes three skill levels, the highest being the Cook's
the second highest being the Cook's Helper classification and the lowest, the position at
FSW position. The FSW is in the lowest pay grade and is an entry-level position that has
been filled with applicants without any previous experience.
On weekends, there are four dietary workers assigned to work, including a Cook's
another FSW who works regularly in the kitchen. It is unlikely that having the Grievant
third weekend would cause any disruption in the operations of the Department. Further, the
would be gaining experience while working in Dietary during the regular workweek. Brown
conceded that she would have placed the Grievant in the position if she had not decided to
hours to the less senior employees.
The Union asserts that the County has exhibited prejudice against the Grievant.
is not the Grievant's present supervisor, expressed concern over her work, while Lueck, who
Grievant's present immediate supervisor, did not express those same concerns.
Section 9.02 of the Agreement provides for a fair trial period of 30 days for the
awarded the job. While this does not mean an employee who is clearly unqualified must be
trial, in this case the Grievant should have been given a fair opportunity to show that she
could in fact
perform the duties to management's satisfaction.
The Union concludes that in order to give meaning to the totality of the Agreement,
clauses should not be read out of context. The Agreement provides that equal consideration
be given to seniority and qualifications. The Grievant has performed the duties of an FSW
in the past
and the position is not one that places a large amount of responsibility on an individual. An
opportunity exists for the Grievant to be evaluated in the new position. The previous
the position had also only worked in the Dietary Department on an occasional basis without
any operational problems. As the position would have provided an opportunity for additional
earnings to the Grievant, the Union seeks a make-whole remedy in addition to the request
Grievant be granted the combined FSW and Housekeeper/Linen positions and also asks that
Arbitrator retain jurisdiction to resolve any disputes as to remedy.
The County asserts that it has not violated the Agreement by failing to award the
position to the Grievant or by failing to combine the FSW and Housekeeping/Linen position
position. Regarding the latter issue, the County cites Sec. 2.01 of the Agreement,
Rights" and asserts it has not bargained away its right to determine the nature and type of
be performed, including job descriptions and job duties. The determination of whether or
combining of the positions is warranted is solely to be
made by the County, and is not subject to grievance or arbitration. There is also
nothing inherent in
the two positions that would require that they be combined, and except for the prior
incumbent in the
two positions, they have not historically been combined. It also must be remembered that
Grievant withdrew her name from the running for the Housekeeping/Linen position. While
indicated that the Grievant may have received the position, that is not a guarantee, and she
have had to prove her qualifications for a position in which she had never performed.
The issue of whether or not the Grievant was given "equal consideration" for the
position raises the question of whether or not "equal consideration" was required in this
Section 9.01 describes the method for filling new or existing jobs, and specifically provides
consideration is to be given to both seniority and qualifications in deciding who is to fill the
This echoes Section 4.01, which provides that seniority rights shall prevail at all times,
ability and skill are reasonably equal.
In this case, there were at least three posters for the FSW position who had
qualifications in food preparation. The Grievant testified that she had worked part-time in
service for three years in the early 1980's, working approximately two days per week. Since
time, the Grievant has been employed solely in the Housekeeping Department. The other
for the position, and who received the job, are both current employees of the Food Service
Department. One has over five years' tenure in her current position and the second has over
The latter individual, Stietz, is also currently employed by an area school district as a food
supervisor, and has run their food program for at least eight years. There is no challenge to
testimony of Brown that the two posters who received the position have significant
and ability in food preparation. The Union's sole argument apparently is that seniority
which is not the case under this Agreement.
The parties have explicitly bargained that seniority is not dispositive in terms of
positions, but is part of a balancing test. Brown testified that since the Grievant's experience
kitchen in the early 1980's, there have been significant changes in the Department both as a
the changing population of the nursing home, as well as changes in regulations. Brown was
within her rights to determine that the two individuals currently in the Department had the
ability and skill to meet the current needs of the position. The Grievant had not worked in
capacity in the kitchen in several years, and by her own admission had passed on the
sign up for an "availability" list in 1997. If she had done so, she would have received
training and experience which may have been sufficient to result in her receiving the position
combined with her seniority.
Finally, the County asserts that the gist of the Grievant's argument revolves around
position, since she took herself out of the running for the Housekeeping/Linen position. It is
County's position that since the Grievant has abandoned the pursuit of that position, and
there is no
requirement that the positions be combined, the sole remedy available would be to award the
position to the Grievant, resulting in her putting in a six day work week. Such a remedy is
necessary, nor appropriate.
In its reply brief, the County disputes the assertion that seniority is the only
Section 9.01 provides that equal consideration shall be given to both seniority and
Union seems to infer from this that an individual who possesses the base qualifications and
seniority should be given the position. The Union also appears to argue that the FSW
be given to any individual without any previous experience. The County questions whether
any testimony to that effect and asserts it is immaterial at any rate. Further, Sec. 9.01 does
alone. The Agreement includes Sec. 4.01, which provides that seniority rights shall prevail,
ability and skill are reasonably equal. When read together, those two sections make clear
seniority is to be the "tie-breaker" only. Had there been two individuals with equal, relevant
experience in the kitchen, seniority would prevail. Where, as here, the two individuals in
who received the position had significantly more relevant experience, seniority does not come
play when evaluating those two individuals vis-à-vis the Grievant.
The County also disputes the assertion that placing the Grievant in the Department
have resulted in the disruption of the operations of the Dietary Department. Brown testified
there have been times when the individuals in the FSW position have had to fill in for the
Helper, and even times, albeit rarely, when they have had to fill in for the Cooks. Thus, it
significantly more sense to place an individual in the FSW position who has the ability to
those higher levels. The County also disputes the assertion that the Grievant would be
experience while working in Dietary during the regular work week." The position in
question is a
one-day-a-week position that is scheduled only to work on weekends, and the rest of the
the Grievant received both positions, she would have been scheduled to work in the
Housekeeping/Linen Department. The County also disputes the characterization of Brown's
as being due to prejudice against the Grievant. While a factor in her decision was her
observation of the Grievant's work habits, that hardly constitutes prejudice. Personal
is a legitimate basis upon which to make a hiring or placement decision, while prejudice
unfair or distorted bias. That is not the case here.
Finally, the Union relies on Sec. 9.02, which provides for a 30-day trial period.
is not really relevant, as it does not come into play until the analysis required by
Secs. 4.01 and 9.01
has been conducted. The Union cannot "leapfrog" over those two provisions. The County
that the grievances be denied in their entirety.
The Union impliedly argues that the one day/week FSW position and the four
Housekeeping/Linen position should have been posted as one combined position and the
second grievance (Joint Exhibit 3) expressly raises this issue. The record does not support
Union's position in that regard. Article 2 of the parties' Agreement reserves to management
to determine the work to be done, as well as, "all rights, powers and
authority that it had prior to this Agreement, except as modified by this Agreement."
has been cited to the Arbitrator that qualifies management's right to determine the number
of positions that will perform the work. The posting for the two positions noted that the two
positions were combined in the past to make one full-time position and "can be again." That
statement appears to recognize that where, as was the case with the immediate prior
person holds both positions, it can be considered the equivalent of a full-time position. It is
prior to the former incumbent, one person did not hold both positions. Further, the positions
different departments under different supervision. Therefore, it is not unreasonable for
to consider them to be two separate positions.
Two provisions have been cited with regard to the issue concerning the awarding of
position, Sec. 4.01 and Sec. 9.01. Article 4 Seniority, Section 4.01 provides:
Seniority rights shall prevail at all times during the life of this
Agreement provided ability and skill
are reasonably equal.
The relevant wording of Article 9 Job Posting, Sec.
Equal consideration shall be given to seniority and qualifications
in making such promotions.
The Union relies on the wording of Sec. 9.01 and asserts that the
Grievant should have been awarded
the position based upon her much greater seniority. The County asserts that Sec. 4.01
and Sec. 9.01
must be read together to mean that seniority only comes into play when skill and ability are
equal as a "tie breaker". The Arbitrator does not agree. The County's assertions amount to
that Sec. 9.01 is either meaningless or says the same thing as Sec. 4.01. Neither
These provisions are what is known as "modified seniority" clauses, which require
other than adherence to "strict seniority". Sec. 4.01 is known as a "relative ability" clause
requires a comparison between the qualifications of the employees bidding for the position
seniority only becomes a determining factor if the qualifications of the bidders are
or "relatively equal" or "substantially equal". Section 9.01 is also a "modified seniority"
it is considered a "hybrid" clause, which "requires consideration and comparison in the first
of both seniority and relative ability" (Emphasis supplied). Elkouri and Elkouri,
Works (5th Edition) at pp. 838-840. As discussed in
Elkouri and Elkouri,
It seems clear that under "hybrid" clauses the relative claims
seniority and of ability must
be determined by comparing and weighing against each other the relative difference in
competing employees and the relative
difference in their abilities. Thus, in
comparing two or more qualified employees, both seniority
and ability must be considered, and where the difference in length of service is relatively
and there is a relatively significant difference in ability, then the ability factor should be
weight; but where there is a relatively substantial difference in seniority and relatively little
in abilities, then length of service should be given greater weight.
Thus, Sec. 4.01 and Sec. 9.01 do not state, nor require, the same thing and the result
one standard could vary from the result under the other. It is a principle of contract
that where there is an inconsistency or a conflict between the wording of a general provision
wording of a more specific provision, the latter should be given precedence. Elkouri and
498. Thus, the County erred in applying the relative ability standard in Sec. 4.01 in this
It is Sec. 9.01, specific to the posting provision, that must be applied.
Applying Sec. 9.01 to the facts of this case, both seniority and qualifications must be
considered. Regarding seniority, the Grievant has 14 years and 4 months of seniority,
5 years and one month, and Steitz has 1 year and three months. 2/ Thus, under the
the difference in seniority greatly favors the Grievant.
2/ Under Sec. 4.06 of
the Agreement, part-time employees attain seniority based on time worked, i.e. every 173
hours worked is considered
to be one month for seniority purposes.
Under the qualifications side of the equation, the County relies most on "experience",
on the ability to fill in in higher-rated jobs. The Grievant worked part-time in the Food
Department for her first three years at Pleasant View and filled in sporadically in Food
1997. The Grievant never filled in as a Cook's Helper or Cook when she worked part-time
Service. Anderson has worked part-time in Food Service for over 6 years and during that
filled in as a Cook's Helper. Steitz works part-time in Food Service and has filled in as a
Helper and as a Cook, and also works part-time for an area school district as a Cook and
in its food service program. In comparing those qualifications, it is important to keep in
position that is in question, and the qualifications must of course, relate to the work in that
Certainly, experience in the job is relevant, as it demonstrates the ability to perform the
However, it is also necessary to consider the level of skill, ability and/or experience that is
to perform adequately in the job.
Brown testified that due to the changes in the types of patients that the Home now
from when the Grievant worked in the Food Service Department, and the effort to meet their
individual dietary needs, that the Grievant's experience was less relevant. She further
testified that one of the duties of an FSW is to fill in for a missing employee, including
at times filling
in for a Cook's Helper or for a Cook, and that this is especially critical on weekends.
Anderson has filled in as a Cook's Helper and Steitz has filled in both as a Cook's Helper
and as a
Cook, and is a cook in her other job, Brown felt that they were better qualified for the FSW
Brown conceded, however, that the FSW position is an "entry-level" position and that at
outside applicants with no prior experience have been hired into the position and that they
been assigned to work weekends. She further testified that when such applicants are hired,
6-8 days of training. Brown also conceded that the majority of the food for the weekend
prepared on Friday. She further testified that if the Grievant had been the only applicant,
have been given the job, thus conceding she was qualified for the position. It is concluded
experience in the job is of limited necessity in being able to perform adequately in the
What it boils down to then, is the ability of Anderson to fill-in for an absent Cook's
and Steitz's ability to fill in for an absent Cook's Helper or Cook versus the presumed
inability of the
Grievant to do so. The County concedes that the need to have an FSW fill in for an absent
been in "rare circumstances". Most importantly, however, the comparison being made by
is the applicants' ability to do a job other than the job posted, i.e., the FSW position.
Again, this is
an entry-level position, and while the ability to fill in in higher-rated positions is
of value to an
employer, the ability to work in a position higher than the one posted cannot be the primary
comparison; rather the comparison must be the qualifications for the position that is posted.
3/ It is also noted in this
regard that no job descriptions whatsoever were offered into evidence in order to determine
the significant duties of
Weighing the difference in qualifications against the
in seniority between the
Grievant and Anderson and between the Grievant and Steitz, the difference in their
the FSW position is outweighed by the substantial difference in their seniority. Thus, it is
that the County improperly denied the Grievant the posted FSW position and thereby violated
9.01 of the Agreement.
With regard to the appropriate remedy, the County argues that since the Grievant
herself from consideration for the four days/week Housekeeping/Linen position, and there is
requirement that the two positions be combined, the Grievant is at most entitled to the 1
FSW position. The Arbitrator does not agree. The logical extension of that argument would
the Grievant would have had to accept the four days/week Housekeeping/Linen position and
her five days/week position, in hopes of prevailing on her grievance on the FSW position.
would place an unreasonable economic risk upon the Grievant in attempting to enforce what
believed were her contractual rights. It was the
County's actions in denying the Grievant the FSW position in violation of the
Agreement that created
the situation. Further, the County permitted employees to sign both postings and noted in
postings that the positions could be combined as they had in the past. Again, creating the
of this situation occurring. For these reasons, it is concluded that the Grievant's
consideration for the Housekeeping/Linen position does not preclude her from being awarded
position as part of the remedy in this case. That said, while it appears the Grievant would
given the Housekeeping/Linen position, her withdrawal from consideration for that job
from occurring. While the position will be awarded to her as well as the FSW position,
unique circumstances in this case, the remedy to be awarded is to be prospective only
backpay. The Arbitrator does not perceive a need to retain jurisdiction.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance as to the failure to post and treat the one day/week Food Service
position and four days/week Housekeeping/Linen position as one combined position is
The grievance is sustained as to the failure to award the Grievant the one day/week
Service Worker position. As the Grievant would have been the successful bidder on the
Housekeeping/Linen position, as well as the Food Service Worker position, had the County
violated the parties' Agreement by denying her the Food Service Worker position, the
Grievant is to
be awarded both positions. However, she is awarded the positions prospective from the date
Award without backpay. Therefore, the County is directed to immediately offer the Grievant
the one day/week Food Service Worker position and the four days/week Housekeeping/Linen
position, consistent with the terms of Article 9 Job Posting, of the Agreement.
Dated at Madison, Wisconsin this 4th day of January, 2002.