BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN COUNCIL 40, AFSCME,
AFL-CIO, LOCAL UNION 2223
EAU CLAIRE COUNTY
(Community Service Coordinator Posting Grievance)
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of the Union.
Mr. Keith R. Zehms, Corporation Counsel, on behalf of the
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Eau Claire, Wisconsin, on August 6, 2001. The hearing was transcribed and the parties
agreed I should retain my jurisdiction if the grievance is sustained. The parties subsequently
briefs that were received by October 15, 2001.
Based upon the entire record and arguments of the parties, I issue the following
The parties have agreed to the following issue:
Whether the County violated the contract when it failed to provide
a work experience
equivalency in addition to the education requirement for the Community Service Coordinator
and, if so, what is the appropriate remedy?
After Cheryl Gilbert, the then-incumbent Community Service Coordinator ("CSC")
to another bargaining unit, the County on April 2, 2001 (unless otherwise posted, all dates
refer to 2001), posted a CSC position in the Clerk of Court's office (Joint Exhibit 2),
. . .
JOB DUTIES & REQUIRED QUALIFICATIONS:
General Description: Position administers the Community Service
Program, providing specialized
case management to participants and community work sites as outlined in Chapters 973 and
Required Qualifications: High school
graduation or equivalent. Two (2) years post-secondary
education (at least 48 credits) with at least 24 credits in any combination of the following
criminal justice, human services related field, public/business administration, communications
or related fields. (Emphasis added).
Satisfactory rating on job-related knowledge and skill gained
through experience and/or training
which includes assessment of the following factors:
coordinating information and
services with multiple departments and organizations;
providing direct services with significant
program coordination and administration;
work site recruitment and development, and
report preparation and presentation
Training or experience in data entry and
standard office practices and procedures including word
processing. NOTE: Appointment will be conditional upon successful completion of a
. . .
The County awarded the position to Lisa Jorgensen, a member of the bargaining unit
a two-year Associate Degree in Liberal Arts and who was classified in pay range 102 in the
Authority. In doing so, the County passed over five bargaining unit employees who had
seniority than Jorgensen - Kathryn Bunning, Julie Niemann, Denise Hall, Linda Tafel and
Scherer - because none of them met the two-year college education requirement listed in the
posting. The County therefore never reviewed their individual job-related knowledge, skill,
abilities. A class grievance on their behalf was filed on April 23.
Personnel Officer Christine Bergestrom testified that Clerk of Courts Dianna Miller
"Adamantly. . ." insisted on a four-year Bachelor of Arts degree for the posted CSC
she, Bergestrom, believed that a two-year college requirement was more appropriate; and
"compromise" of 48 credits was ultimately reached. She said that the educational
much more objective than trying to ascertain whether applicants had equivalent qualifications.
why an education requirement was needed, she replied:
The Community Service Program is basically a stand-alone
program. The incumbent in that
position develops, implements, and maintains that program on an ongoing basis with very
outside supervision or control. Part of the position's requirements are to go out and do
speaking to various community groups to encourage people to participate as job sites for the
program, to go and speak with the job sites themselves, analyze them for the appropriateness
to be provided for community service opportunities, and provides an ongoing liaison with the
the people who are operating the job sites in case there are problems with the placements.
what we looked at in terms of, okay, what do we presume that a formal education gives, is
to demonstrate an ability to take information, as in research, to take information from
sources, be able to assimilate it, be able to develop it into written communication, or be able
present it publicly in a manner that is persuasive, and that is representative of a professional
you know, a certain level of professional expertise.
Personnel Director Marvin Niese testified that the educational requirement for the
position was reasonable and that the personnel department did not check on an applicant's
he/she did not meet the posted educational requirements for the CSC position. He said on
cross-examination that Clerk of Court Miller originally wanted the CSC position to be placed
professional bargaining unit and that a formal education "not necessarily" means that a
do a better job than someone else who has equivalent experience.
County Clerk Miller testified that she wanted some objective measurement as to
person is qualified to be the CSC, which is why she insisted on a formal education
added that much of the work now done by the CSC was formerly performed by probation
were required to have a Bachelor of Arts degree; that Jorgensen has performed very well as
and that there are no equivalent work-related positions in her office because all of those
relate to clerical duties, as opposed to the case management responsibilities of the CSC.
POSITIONS OF THE PARTIES
The Union claims that the County violated Section 5.02 of the contract because it
considered 'knowledge' gained through job experience, or job-related training seminars, nor
efficiency on the job' of more senior employees who posted for the CSC position" and
is no merit to the County's claim that "an alternative experience" requirement would be too
to administer. The Union also maintains that the "CSC position is important to the clerical
unit, and, to the more senior applicants" who have the skill, ability and experience to
CSC's duties and that, furthermore, the "contractual posting provision is a 'sufficient ability'
standard." As a remedy, the Union asks that the CSC position be reposted and that the
required to consider any "directly related job-related training and/or experience. . ." as an
The County, in turn, contends that the authority to determine required qualifications
represents a "fundamental management right"; that its post-secondary requirement "is a bona
occupational occupation"; and that the Union's requested remedy cannot be granted because
"transfers the authority to determine qualifications from the County to the arbitrator."
This case in part turns upon the application of Section 1.06 of the contract, entitled
"Recognition and Management Rights", which states in pertinent part that "The Employer
the right to "Manage the employees; to hire, promote, transfer, assign or retain employees
and, in that
regard, to establish reasonable work" rules.
This right to "hire, promote, transfer, assign or retain employees. . ." must be
accordance with Section 4.01 of the contract, entitled "Seniority Defined", which states in
"The Employer recognizes the principle of seniority and such
principles shall predominate where
applicable, provided that the employees involved in any decision to which the principle of
is applicable, meet any necessary qualifications."
Seniority is addressed in Section 5.01 of the contract which states
in pertinent part:
5.01 A certified bargaining unit is defined to be each
separate AFSCME Union with Eau Claire
County e.g.: . . .Courthouse Clerical Employees. . .The Employer will award the
to the most senior employee who signs the posting and meets the required qualifications at
the time of posting as stated on the job posting. . . .However, applications from employees
within the certified AFSCME bargaining unit where the vacancy or new position exists will
receive primary consideration even though applicants from other bargaining units may have
5.02 The qualifications of
employees are a matter of fact, and include physical ability, knowledge,
skill and efficiency on the job. . .
The Employer shall determine whether an applicant is
for the position. However,
such determination may be grieved by the Union. Employees not considered qualified shall
be notified of the reasons in writing.
It thus must be determined under this language whether the County's educational
for 48 hours of college credit, which includes 24 hours of credit in certain subjects,
reasonable qualification and whether, if employees do not have that qualification, the County
required to establish a work experience and equivalency qualification.
Since the 24 hours of college credits must be in the areas of "criminal justice, human
related field, public/business administration, communications skills, or related fields", I find
constitutes a bona fide education requirement.
Moreover, the Union itself in the past
acknowledged the need for a similar educational requirement when it did not object to the
of an educational requirement when the County in December, 2000, reclassified the CSO
pay range 106 and awarded that position to former CSC Gilbert who had a Bachelor of Arts
from a four-year college.
However, Bunning has about 15 college credits in criminal justice, psychology and
and she has worked in the Clerk of Courts office for about 20 years. Scherer, who has no
credits, also has had extensive court-related experience after she became a Warrant Specialist
Since Jorgensen's college work dated back to 1973-1981 (Joint Exhibit 14), the Union rightly
why such former college work supercedes Bunning and Scherer's much more recent
training. Moreover, Personnel Director Niese acknowledged that it "is possible. . ." that
some of the
unsuccessful applicants would be able to serve as the CSO based only on their work
The contract, though, does not contain any language mandating that a work
equivalency be established. The Union therefore in effect is arguing that Section 5.01 of the
must be read as providing that:
. . .
"The Employer will award the position to the most senior
employee who signs the posting and
meets the required qualifications at the time of posting and/or the equivalent,
and training on the job posting."
. . .
But, since Section 2.02 of the contract states that an arbitrator
"shall have no authority to add to or
to subtract from or modify this agreement in any way", I cannot add such an underlined
phrase to the
In addition, and as set forth on p. 3 above, Bergestrom credibly testified that the CSC
is unique because he/she must exercise a wide range of skills that are dissimilar from the
regularly performed by other bargaining unit members. The record further shows,
of Court Miller's testimony, that many of the CSC's duties were formerly performed by
agents who were required to have a Bachelor of Arts degree. The need for such a degree
shows a historical basis for the County's insistence here that a CSC must have some college
The Union cites Elkouri and Elkouri, How Arbitration
Works, (BNA, 5th Ed., 1997), pp. 866-867, in
support of its contention that such college experience is unreasonable and thus is violative of
Section 5.01. It certainly is true that some arbitrators in some cases have struck down
educational qualifications as being unreasonable. All those cases, however, are fact-specific
turned on the specific facts of each such case. Here, the Union has presented several
reasons as to why the County's college requirement is unfair. Standing alone, they might
establish that the County has acted unreasonably. But, they do
not stand alone since: (1), the CSC must exercise a range of skills that are dissimilar to
skills performed by other bargaining unit members; (2), many of the CSC's job duties were
performed by probation agents who were required to have a college degree; and (3), the
agreed to a college requirement when the CSC position was first established.
Given all that, I conclude that the County's educational requirement is reasonable and
as a result, the County is not required to provide for a work experirence equivalency. See
Waukesha County, Case 52, No. 52247, MA-8887 (McLaughlin, 1995); Pepin County, Case
No. 44310, MA-6252 (Engmann, 1991); Winnebago County, Case 286, No. 55215,
In light of the above, it is my
1. That the County did not violate the contract when it failed to provide a
work-experience equivalency in addition to the education requirement for the CSC
2. The grievance is hereby denied.
Dated at Madison, Wisconsin, this 11th day of February, 2002.