BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NORTHEAST WISCONSIN TECHNICAL
NORTHEAST WISCONSIN TECHNICAL
Mr. David B. Kundin, Executive Director,
Bayland UniServ, 1136 North Military Avenue, Green
Bay, Wisconsin 54303-4414, for Northeast Wisconsin Technical College Faculty Association,
referred to below as the Association.
Mr. Robert W. Burns, Davis
& Kuelthau, S.C., Attorneys at Law, 200 South Washington Street,
Suite 401, Green Bay, Wisconsin 54305-1534, for Northeast Wisconsin Technical College
Board, referred to below as the Board, or as the Employer.
The Association and the Board are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a grievance filed on behalf of Jack Gaywont,
to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
member of its staff.
Hearing on the matter was held on August 10, 2001, in Green Bay, Wisconsin. Sandra
prepared a transcript of the hearing, and filed it with the Commission on August 31, 2001.
parties filed briefs and reply briefs by October 17, 2001.
The parties did not stipulate the issues for decision. I have determined the record
Did the Board violate the collective bargaining agreement by
denying the Grievant's internal
bid for Posting #P1163 for the position of Mathematics Instructor?
If so, what is the appropriate remedy?
MANAGEMENT RIGHTS RESERVED
The Employer, unless otherwise herein provided, hereby retains
and reserves unto itself, all
powers, rights authority, duties, and responsibilities conferred upon and vested in it by the
the Constitution of the State of Wisconsin, and of the United States, including but without
the generality of the foregoing, the right:
. . .
2. To hire all employees and, subject
provisions of law, to determine their
qualifications and the conditions for their continued employment, to relieve from duty
because of lack of work . . .
The exercise of the foregoing powers,
rights, authority, duties, and responsibilities by the
Employer, the adoption of policies, rules, regulations, and practices in furtherance thereof,
use of judgment and discretion in connection therewith shall be limited only by the specific
express terms of this agreement and Wisconsin Statutes, Section 111.70, and then only to the
that such specific and express terms hereof are in conformance with the Constitution and
laws of the
State of Wisconsin, and the Constitution and laws of the United States.
. . .
CONDITIONS APPLICABLE TO TEACHING
SECTION A. SENIORITY
1. For the purpose of this
contract, seniority is defined as the length of continuous service in the
. . .
SECTION C. TRANSFERS
1. For transfer, qualifications
being equal, seniority shall prevail.
2. Transfer, regardless of
qualification, will not be available to an instructor unless there is a
vacant position. However, this provision is not applicable if there is a layoff, in which case
Article IV, Section F shall apply.
3. Involuntary Transfers: If a
position is not filled after normal bid procedures, the employer
shall have the right to appoint the least senior, qualified person to fill the position.
. . .
SECTION E. POSITION OPENINGS
1. The following procedure
shall govern the appointment to available positions within the
shall prepare and make available to the Association a table of
organization and a description of the qualifications required and duties for all
professional positions within the District.
b. A list of all
vacancies and the qualifications for such positions must be made available
in advance to the professional staff. In the event of a vacancy, there shall be a
minimum notification of fifteen (15) days prior to the filling of such vacancy and a
copy sent to the bargaining representative.
c. All eligible personnel
applying for these vacancies must be considered and notified of
the result of such considerations. Teachers within the District will be given preference
for positions within the unit certification when qualifications are equal, and a copy will
be sent to the bargaining representative when final notification is made.
. . .
3. All qualified personnel may apply for openings
within the District. Qualifications being equal,
seniority shall prevail for openings within the unit certification.
4. New teaching positions and
vacancies shall be subject to bid, and in all cases the senior
qualified instructor shall be entitled to priority. . . .
The definition of layoff shall be a reduction
of workload from full-time status to less than 85%
or a reduction of workload of part-time employees to less than 50%.
a. For the
displacement and reassignment under this section, an instructor
must be certified in the program or academic area for which he/she is to work. An
instructor is certified in a program or academic area if he/she holds a Standard Life
Certificate in that program or academic area, or if he/she holds a Provisional
Certificate in a program area and has at least two years occupational experience
within that area during the prior eight years; or if he/she holds a Provisional
Certificate in an academic area and has at least thirty (30) credits in that academic
b. For the purposes of
displacement, certification must be on file with the District on the
day preceding the date of notification of layoff.
c. For the purposes of
recall, certification must be on file with the District two weeks
prior to the beginning of a normal academic semester for recall to positions during the
time period from the beginning of that semester to the day prior to the beginning of
the subsequent academic semester.
. . .
a. A staff member who receives
of layoff may displace the least senior
member in a program area or academic area for which he/she is certified.
b. If a staff member
holds certification in more than one area, he/she must displace the
least senior person among those areas.
c. A full-time staff
member who displaces the less senior full-time staff member through
this process shall be assigned a full load.
d. A full-time staff
member who displaces the less senior part-time staff member through
this process shall be assigned a full load.
e. A more senior
part-time instructor may displace the less senior employee, whether
part-time or full-time.
. . .
h. Displacement shall be on a position-only
. . .
SECTION A. DEFINITIONS
1. A grievance is a complaint by an employee in the
bargaining unit, or the Association, where
a policy or practice is considered improper or unfair; where there has been a deviation from,
or the misinterpretation or misapplication of a practice or policy; or where there has been a
violation, misinterpretation or misapplication of any provision of any agreement existing
between the parties hereto.
. . .
SECTION C. PROCEDURE FOR ADJUSTMENT
. . .
STEP 3 . . .
c. Nothing in the foregoing shall
construed to empower the arbitrator to make
any decision amending, changing, subtracting from, or adding to the
provisions of this agreement.
. . .
The grievance, dated August 3, 2000 (references to dates are to 2000, unless
noted), cites Article IV, Sections C and E as the governing provisions, and specifies
E1c, and E3 as the governing paragraphs. The grievance seeks that the Grievant be awarded
position of Mathematics Instructor that the Board posted on May 9. The job posting states
qualifications for the position thus:
Master's Degree with a minimum of 18 graduate level credits in
Mathematics. Prior teaching
experience, including alternative deliveries preferred.
The Grievant and one other instructor, Stan Rickert, filed a letter of interest in the
position with the
Board. At the time each instructor applied for the position, the Grievant had fourteen
credits in Mathematics and Rickert had twenty-three. The Board awarded the position to
taking the position that the Grievant did not meet the posted qualifications for the position.
Master's Degree plus 18 graduate level credits in Mathematics qualification is referred to
the M18 requirement.
The Grievant has served as an instructor for the Board for eighteen years. When
Board assigned the Grievant to serve as a Data Processing instructor. At the time, such
a "107" prefix, to designate a computer programming type course. When hired, the Grievant
Master's degree in administration with an emphasis in analysis. In November of 1990, the
obtained certification (804) in Mathematics from the State of Wisconsin. He began
mathematics courses for the Board in the Fall of 1991. Between 1992 and 1997 the Board
the Grievant a mathematics course each semester. He taught mathematics on an
basis in the Fall of 1991, and in the summers of 1999, 2000 and 2001. Extra-contractual
those that exceed a normal teaching load or which span periods of time outside of the normal
year. The Grievant has taught Data Processing Math Logic, which is now numbered
Data Processing Math Statistics, which is now numbered 804-161. He has not, however,
general education Mathematics for the Board.
In May, Fred Janusek retired from a position of Mathematics Instructor, which
posting noted above. The Grievant filed a letter of interest in the position knowing that he
meet the M18 requirement. He believed, however, that while the requirement might be
of a new hire, it would not be applied to an internal transfer request. The Grievant had
graduate credits in mathematics in the hope that he might someday instruct in the area. Data
Processing is becomingly increasingly tied into changes in the information technology field,
Grievant hoped to move away from that specialty as his career advanced. Because of his
he could hope to exert some control over his teaching schedule in mathematics.
The Board structures its instructional activities into four divisions: General Studies;
and Marketing; Health and Community Services; and Technical and Trades. The Board also
community and outreach activities as part of its instructional program. The General Studies
includes a general education and a basic education component. Mathematics is one of four
departments within general education.
The M18 Requirement
The North Central Association is the accrediting body for two and four year schools
in the northern portion of the United States. Accreditation is important to two and four year
for a number of reasons, including the provision of financial aid to students and the transfer
between educational institutions. NCA accreditation can span no more than ten years. The
secured accreditation in 1990 and in 2000.
As part of the accreditation process, the Board will perform "self-study" between
accreditation reviews by NCA. Self-study is designed, at least in part, to demonstrate how
is acting to meet the published General Institutional Requirements (GIR) of the NCA. The
provides consultants to assist in that process. During a self-study process with the Board in
of 1998, Joann Rathburn, an NCA consultant, advised Lori Weyers, the Board's Vice
Learning, that the NCA had promulgated following "Explication" of GIR 16:
Documenting the Centrality of General
It is essential that an institution of higher education seeking initial
or continued affiliation with
the Commission document and make public the centrality of general education to its
endeavors. An evaluation team considers whether the institution's
. . .
faculty teaching general education
courses hold graduate degrees that include substantial study
(typically a minimum of 18 semester hours at the graduate level) appropriate to the academic
field in which they are teaching. . . .
Rathburn and Weyers discussed the significance of this GIR as an NCA
recommendation. NCA did
not communicate the recommendation, and Weyers did not take it, as a condition of
She did, however, perceive the GIR to be significant to NCA.
At roughly the same time as the self-study process, the Board, in consultation with
Wisconsin Technical Colleges, evaluated the content of their general education programs as
relate to the requirements of an Associate Degree. Ultimately, these discussions led to the
promulgation of a program standard by which the occupational supportive course
an Associate Degree demand at least three credits in general education math and/or science.
Board responded to this requirement by changing the course numbers of the business
courses taught by the Grievant to a math number. This is reflected by the "804" reference in
courses noted above. This development dovetailed with the NCA accreditation and self-study
process, for the technical colleges, in consultation with the NCA, determined that general
math teachers should be expected to meet the M18 requirement stated in GIR 16.
The decision to impose the requirement, however, did not address how or when to do
this point, the technical colleges reached different conclusions. One, North Central,
the M18 requirement should be imposed on all staff as soon as possible, and at the teacher's
The Board perceived this to have caused an internal disruption it did not wish to incur.
After a series
of meetings involving Board administrative staff, the Board determined to implement the
requirement by attrition. The Board determined to state the M18 requirement on all job
From March 16, 1999 through the posting at issue here, the Board included the M18
all general education postings. During the decisional process, the Board also determined that
teachers who did not meet the M18 requirement would not be required to meet the
any courses then being taught. The Board did not formally notify the Association of these
The Board, however, implemented the requirement over time. In January of 1999,
Rathburn and Nan Hoppe, the Board's Dean, conducted an inservice for general education
at which the M18 requirement was addressed, as well as the Board's decision to implement it
attrition and through professional development plans. Weyers also discussed the M18
with the Mathematics Team, and believed that the Team supported it. As noted above,
education job postings from March of 1999 included the M18 requirement. In collective
negotiations in 1999, the Board discussed the matter
and the situation at North Central. No specific proposals were made by either party.
At no point in
any of this process did the Board and the Association discuss the effect, if any, of the M18
requirement on an internal applicant for a posted position.
The Board does not apply the M18 requirement to non-benefited or extra-contractual
positions. Non-benefited positions are not in the Association's bargaining unit, which is
to half-time positions or greater. The Board employs roughly 700 non-benefited, and
hundred-ten benefited teachers. The Board employs perhaps twenty-nine benefited general
instructors who teach courses for which the Board seeks to apply the M18 requirement.
of those instructors meet the M18 requirement. The Board does not apply the M18
layoff/recall situations as it does to job postings.
Weyers and Jay Foley, the Board's Vice President of Administration, testified that
determination not to apply the M18 requirement reflected the practical impossibility of hiring
sufficient number of non-benefited instructors to meet its instructional needs. Foley denied
decision was implemented as a cost-savings device.
The Grievant testified that he was unaware he had been "grandfathered" to teach a
education mathematics course, without meeting the M18 requirement, until the arbitration
He noted he did not feel the M18 requirement could be equitably imposed on internal
posted positions. Among other problems, the requirement adversely impacted the job
senior teachers. In his view, "qualified" and "certified" are equivalent terms as applied to an
bid for a position.
The Board has employed Mel Jennings as a general education instructor since 1976.
presently serves as the Grievance Chairperson for the Association, and has served on the
Association's bargaining team. In his view, the Grievant's view of "qualified" and
accurate. That the Board does not share this view has been noted during informal
during collective bargaining. Prior to this grievance, neither party acted to bring that dispute
head in bargaining or through grievance arbitration. In his view, the Association would not
agreed to the M18 requirement if the Board had notified the Association of its
like the Grievant, was unaware of the "grandfathering" of current general education teachers
continue to instruct courses without meeting the M18 requirement. He was aware the Board
to meet the NCA recommendation through attrition, but he did not believe the Board would
the requirement to existing staff. The Board's implementation of the M18 requirement
worked an injustice on the Association, particularly its more senior teachers.
Further facts will be set forth in the
THE PARTIES' POSITIONS
The Association's Brief
The Association states the issues thus:
Whether or not the College's decision to select Stan Rickert over
Jack Gaywont for the vacancy
in Math (804) was arbitrary and thus violative of the relevant provisions regarding internal
in the CBA. If so, the Association seeks as a remedy that Jack Gaywont be given a math
schedule for the semester immediately following issuance of this Award. In addition, the
seeks to have all NWTC-FA members receive equal treatment as far as "grandfathering" or
decisions about making exceptions to rules pertaining to issues of when staff who are
certified in a
content area, such as 804, are certified to teach in that area.
The Association contends that, on one level, "this dispute involves whether or not
synonymous to 'qualified' for purposes of determining who should be selected for openings
members have a contractual right to bid on."
That contractual posting language refers to "qualified" while contractual layoff
to "certified." Any arguable distinction between these terms has, however, been blurred by
intervening action by the College." Specifically, the Board chose to implement a
benefited instructors that it chose not to extend to non-benefited instructors. The Board
this action by exempting certain benefited instructors from certain parts of the requirement.
The requirement is the Board's unilateral implementation of the M18 requirement.
requirement ran head-on into the practical difficulty that only about one-third of the Board's
education instructors could meet it. The Board responded by unilaterally excluding certain
from the requirement. Left out from this group were "faculty members who teach in one
have certification in other areas." The Grievant falls in this group.
This distinction has no contractual significance. The Board did not negotiate with the
Association, nor did it even advise the Association of its implementation of the requirement.
Board's actions are "not . . . fair or even-handed." The failure to negotiate sought to avoid
"protracted and likely unsuccessful" effort. The Board excluded part-time instructors from
requirement for no better reason than convenience or cost. That part-time instructors are not
represented and receive no benefits underscores the weakness of the Board's attempt to
requirement as based solely on educational policy. That the Grievant was unaware,
until the arbitration hearing, that he had been "grandfathered" for courses he currently
manifests the dubious factual and contractual basis for the requirement.
That the Board has included the new requirement on hiring decisions or on some
cannot be made into an Association waiver of its right to challenge the requirement. The
"Association does not challenge the College's right to implement new hiring criteria for
employees." The Grievant is not, however, a new employee. To bring him within the
"grandfathered" group of instructors "maintains and supports concepts of fundamental
equitable treatment of bargaining unit members in application of the internal bidding
contained in the CBA."
To implement the remedy sought by the Association will not prejudice any Board
poses no "adverse impact on the status the College seeks to protect with the NCA." That it
adversely impact instructional services is evident by the Board's decision not to impose the
requirement on unrepresented, part-time instructors.
The Board's Brief
The Board states the issue thus: "Whether Northeast Wisconsin Technical College
the Collective Bargaining Agreement by denying (the Grievant's) application for a
Instructor assignment because (the Grievant) was not qualified for the position."
After a review of the evidence, the Board contends that the controlling agreement
clearly and unambiguously grant it the authority to determine qualifications for the disputed
Arbitral precedent establishes that clear terms permit no room for interpretation. Article II
the Board's "unfettered inherent right to determine the qualifications of its instructors."
other agreement provision limits this right, the Board's exercise of discretion is appropriate.
Association should not be permitted to achieve a right through grievance arbitration that it
secured in collective bargaining.
To the extent the Board's exercise of discretion can be questioned, arbitral precedent
that the Association demonstrate "that requiring a master's degree plus eighteen graduate
was arbitrary, capricious, discriminatory or made in bad faith." Here, the evidence
Board had legitimate reasons based in educational policy to implement the requirement.
Article VII limits the authority of an arbitrator from altering the labor agreement.
precedent underscores the basis for this. The establishment of qualifications for a college
is a policy decision demanding the expertise of "professionally trained and experienced
administrators" not an arbitrator's judgment.
To accept the Association's position would equate "qualification" with "certification."
would ignore that Articles II and Article IV, Sections E and F use the terms in
To make the state-set requirement of "certification" equate to the Board set requirement of
"qualification" would "effectively shift the authority and responsibility for determining
qualifications from NWTC to the State of Wisconsin, a result completely at odds with the
language of the contract." Arbitral precedent underscores the need to grant meaning to each
of the contract, and to avoid equating terms the parties chose to distinguish.
Since March of 1999, the Board has consistently applied the requirement in postings.
Association "has never grieved or even protested (the Board's) right to require this
This amounts to an Association waiver of the argument it asserts through the grievance.
Since the Board has the authority to set the M18 requirement, and since the Grievant
meet it, it necessarily follows "that this grievance (must) be denied in all respects."
The Association's Reply Brief
The Association does not challenge "the management right to establish qualifications
rather is challenging the (Board's) right to arbitrarily decide which qualifications will be
in what circumstances the College must apply these qualifications." Thus, the case is less
dispute over management rights than "about fair and equitable treatment."
The Board misstates the dispute by arguing that the Association seeks to have an
"substitute his judgment for that of (Board) Administrators." The Association grants that the
can implement the new requirement for new hires, but disputes the Board's authority to
apply it to "thirty of (the Grievant's) colleagues" while applying it to him. It is the plight of
certification teachers that the Association questions, not the contract terms advanced by the
The Association acknowledges that "there is some merit to the concept that if one is
then they should be qualified." However, that argument is not crucial to the grievance.
grievance challenges the selective enforcement of the Board's new requirement.
Contrary to the Board, the Association has not "previously had an opportunity to
the selective application of this 'grandfathering' in of some instructors but not others." The
Association does not challenge the changing of postings for new positions. Prior to this
"there were no Association members who objected to, or were even impacted, by the new
qualifications." There is, then, no evidentiary basis to find an Association waiver of the
advanced by the grievance.
The case law cited by the Board is irrelevant to the determination of the grievance.
Board's exercise of discretion is the issue, and the evidence shows that the Board's "selective
grandfathering" is "arbitrary capricious, possibly discriminatory and clearly in bad faith."
The Board's Reply Brief
Contrary to the Association, the "only issue in the grievance is whether
(the Board) had the
authority to determine the qualifications of faculty for vacant positions." The asserted
"grandfathering" issue misstates the dispute. The Board did not exempt all general education
instructors from the new requirement: "Rather, (the Board) exempted current faculty from
master's degree plus eighteen requirement only for courses they were currently teaching."
not create a new contractual issue, and mirrors the "legitimate exercise of (the Board's)
right to determine the qualifications of its faculty." The Board has chosen to implement the
recommendation "through attrition." The Association's attempt to challenge the
qualifications for a vacant position seeks to avoid the risk of displacing "grandfathered"
"based merely on the personal interests of the Grievant and other Association members."
The Board contends that the Association's arguments fail to cite contractual language
the "contract does not support the Association's position." The clear and unambiguous
Articles II and IV must be applied as written.
The Association's attempt to construct a "disparate treatment argument" misstates the
exemption from the requirement. Dual certification is not relevant to the Board's decision.
the Board "exempted all current faculty in the General Education Program,
including the Grievant,
from the master's degree plus eighteen credit qualification for courses they were currently
All faculty who applied for the disputed position were subject to the new requirement.
Nor will the evidence support a contention that the new requirement was "secret" or
for convenience." Ignoring that arbitration is the wrong forum to assert the Board applied
requirement against represented faculty while exempting non-represented faculty, the
no support for the Association's contention of improper Board action. The record establishes
the Board "did not require part-time faculty to satisfy this qualification because doing so was
practical." In any event, this decision does no more than underscore the Board's proper
decision to meet the NCA requirement through attrition. The NCA's recommendation is a
persuasive statement of educational policy than is the Association's critique of the Board's
implementation of the policy choice. The Board concludes by requesting that "the grievance
I have adopted an issue for decision that draws on each party's view. The Board's
the analysis on Article II, Section 2 and Article IV, Section F. The Association's focuses on
IV, Sections C and E. Each party asserts broader policy concerns. The Association's
the Grievant's request involves "internal bidding." The issue stated above is phrased broadly
incorporate both lines of argument.
The interpretive issue involves the determination of "qualifications." Article IV,
governs transfer requests, granting a preference for seniority where "qualifications" are
Article IV, Sections E1c, 3 and 4 govern the filling of vacancies. Subsection E1c grants a
for unit applicants in filling vacancies "when qualifications are equal." Subsection 3 grants a
preference for seniority for "openings within the District" for which "qualifications" are
among applicants. Subsection 4 grants "priority" regarding "(n)ew teaching positions and
to "the senior qualified instructor." Whether considered a vacancy, a new position, or a
request, the Grievant's bid for the position vacated by Janusek presumes he is "qualified" if
seniority is to be given determining force.
As the Board points out, this brings Article II, Section 2 into focus. It
authorizes the Board
to "determine" employee "qualifications and the conditions for their continued employment."
authority and "the adoption of policies . . . in furtherance thereof" is limited "by the specific
express terms of this agreement."
The parties do not dispute the Board's authority to establish the M18 requirement, but
effect of its implementation on existing staff. Viewed as a contractual matter, the
is whether any of the provisions of Article IV limit the Board's ability to find the Grievant
for the position. Viewed as a policy matter, the issue is whether the Board should set
beyond the Grievant's certification and experience. Article VII, Section A1 implies
some latitude in
the consideration of policy matters. Article VII, Section C, Step 3c, however,
demands that such
consideration be given a contractual basis.
The grievance lacks an authoritative contractual basis. The provisions of Article IV
the grievance assume the Grievant's "qualifications". There is, however, no demonstrated
overturn the Board's authority under Article II, Section 2 to determine the Grievant's failure
the M18 requirement flawed his bid for the vacant position.
It is undisputed that Rickert, unlike the Grievant, met the M18 requirement. Beyond
there is no evidence that any consideration beyond the M18 requirement prompted Rickert's
selection. Thus, the process was not skewed by non-employment based bias in favor of
against the Grievant.
The Association asserts policy-based limitations on this exercise of authority. The
contends that the Board's determination to permit the Grievant to teach certain math courses,
deny him a full-time position is arbitrary. This argument has persuasive force. The flaw in
argument is that the source of the requirement is the NCA, not the Board. Even if the
merit of the M18 requirement can be debated, the Board is not its source. The Board's role
process is the decision to implement it through attrition. As each party notes, the decision
avoid the confrontation provoked at another technical college by a more or less immediate
implementation. Beyond this, the decision preserved the Grievant's, and similarly situated
ability to continue teaching certain courses. It also created a period of time for unit teachers
acquire the necessary credits. The merit of this thought process, as any thought process, can
disputed. It cannot, however, be characterized as arbitrary.
Nor can the implementation decision be dismissed as arbitrary because the Board's
accreditation was not contingent on implementing an M18 requirement. To imply such a
reads Article II, Section 2 out of existence. It is undisputed that NCA consultants considered
recommendation significant and progress toward meeting it a worthy consideration in the
accreditation review. To conclude the Board could not consider this in a qualification
its accreditation was at risk renders Article II, Section 2 meaningless.
The Association forcefully highlights the incongruity of implementing the M18
for benefited staff, but excluding non-benefited and extra-contractual teachers. The
be noted, and undercuts the significance of policy-based arguments on the need for an M18
requirement. However, the evidence indicates the accreditation process focuses on full-time
Even if this is not the case, the Association's argument cuts both ways. Apart from the
considerations governing a technical college's curricular offerings, to highlight the centrality
benefits to full-time staff underscores their significance to the teaching mission. That
follow benefits in flowing toward the instructors who are central to the teaching mission
characterized as an arbitrary process.
The Association also forcefully argues that the requirement should have been
openly. This point cannot be faulted. However, the issue is compulsion and more
compulsive authority arbitration brings to the M18 requirement. The Association does not
bargain the Board's decision. Rather, it seeks to expand the "grandfathering" effect of the
implementation of the M18 requirement to shield internal bidders from the M18 requirement.
The labor agreement does not permit compulsion of this conclusion through grievance
arbitration. As noted above, Article II, Section 2, permits the Board to determine
will the agreement permit a conclusion that the Grievant's certification
establishes his qualifications. As the parties acknowledge, the provisions of Article IV,
Section F can
be read to equate certification with qualification. This equation, however, turns on the
use of "certification" or "certified" in Section F. An arbitrator cannot dismiss as inadvertent
parties' decision not to use those terms in Sections C or E. The parties have the authority to
"certified" with "qualified." An arbitrator, however, must give effect to all the terms of the
agreement. The parties' use of "certified" and "certification" in Article II, Section F stands
contrast to the use of "qualified" and "qualifications" in Article II and Article IV, Sections C
The distinction in the use of the terms undercuts the Association's contention that, with
regard to this
posting, "certified" equates with "qualified." That Article IV does not expressly distinguish
the rights of internal and external applicants for openings further undercuts the Association's
Nor does the law support the assertion that bargaining could be compelled on the
requirement. Under the Municipal Employment Relations Act, "a municipal employer's duty
bargain during the term of a contract extends to all mandatory subjects of bargaining except
which are covered by the contract or as to which the union has waived its right to bargain
bargaining history or specific contract language" School District of Cadott Community, Dec.
No. 27775-C (WERC, 6/94) at 13, aff'd 197 wis.2d 46 (Ct.
App., 1995). There is no persuasive
evidence that the Association, by conduct, waived its right to bargain the M18 requirement
the term of the agreement. As the Association points out, prior postings including it
something less than a binding practice regarding the implementation of the M18 requirement
existing staff. The Board's announcement of the requirement was not directed to the
an entity. In any event, it was subtle at best. Thus, the Association has not, by conduct,
right to bargain the M18 requirement. However, as the parties' positions acknowledge, the
agreement addresses the point at Articles II and IV. Because the labor agreement covers the
the Association could not legally compel bargaining on it during the term of the agreement.
None of this establishes that the Association's position is unreasonable. If adopted, it
lengthen the period of time by which attrition can be expected to bring the M18 requirement
place. There are valid reasons to do this, as the Grievant's and Jenning's testimony point
is not, however, a matter addressing the reasonableness of the Board's implementation
Rather, the issue is whether the Board can be compelled, through grievance arbitration, to
Grievant from the M18 requirement in Posting #P1163. The language of the contract
does not afford
me that authority. Article II, Section 2 permits the Board to determine qualifications.
Sections C and E presume an applicant's qualifications before the application of a seniority
preference. Those sections, unlike Section F, do not imply that "qualified" means nothing
"certified". Since the Board had the authority to implement the M18 requirement, the
affords no basis for an arbitrator to compel the Board to shield the Grievant from it. The
selection of Rickert as the qualified applicant thus did not violate the labor agreement.
This conclusion must be restricted to its facts. The implementation of the M18
does not pose any issue regarding whether the Board can select, without challenge, its view
most qualified applicant. The issue here is not whether the Board chose Rickert because he
more credits than the Grievant. Rather, the issue is whether the Grievant met the minimum
qualifications set for the position by the Board.
The Board did not violate the collective bargaining agreement by denying the
internal bid for Posting #P1163 for the position of Mathematics Instructor.
The grievance is, therefore, denied.
Dated at Madison, Wisconsin, this 10th day of January, 2002.
Richard B. McLaughlin, Arbitrator