BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 2375, AFSCME, AFL-CIO
(Amy Roberts Grievance)
Mr. James E. Mattson, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO,
appearing on behalf of the Union.
Ms. Candace Fitzgerald, Douglas County Human Resources
Manager, appearing on behalf of the
At all times pertinent hereto, Local 2375, AFSCME, AFL-CIO (herein the Union)
Douglas County (herein the County) were parties to a collective bargaining agreement dated
2000, and covering the period January 1, 2000, to December 31, 2002, and providing for
arbitration of certain disputes between the parties. On January 7, 2002, the Union filed a
the Wisconsin Employment Relations Commission (WERC) to initiate grievance arbitration
the County's failure to post the position of Adult Services Social Worker to which Amy
(herein the Grievant) was allegedly entitled, and requested the appointment of a member of
WERC staff to arbitrate the issue. The undersigned was designated to hear the dispute and a
was conducted on April 30, 2002. The proceedings were not transcribed. The County and
filed briefs on June 13, 2002, and June 17, 2002, whereupon the record was closed.
The parties were unable to stipulate to the framing of the issues. The Union would
issues as follows:
Did the Employer violate the terms of the collective
agreement (Article 12, Section
1-A) and the long standing past practice when it failed to post the vacancy in Adult Services
unilaterally assigned a less senior employee to the vacant position in Adult Services thus
more senior and qualified employee said position?
If so, the appropriate remedy is to award the Grievant (most
senior and qualified) the position
in Adult Services effective November 1, 2001, through December 10, 2001 (the date the
secured a full-time position). The Employer to cease and desist from not posting vacant
it intends to fill and refrain from unilaterally assigning other employees into said vacant
which undermines seniority and posting rights of bargaining unit employees.
The County would frame the issue as follows:
Did the County violate the contract by not posting for
bargaining unit members the vacancy
created by the Adult Services Social Worker?
If so, what is the appropriate remedy?
The Arbitrator is persuaded that the County's proposed framing of the issues
presents the matters in dispute and adopts the same.
The county board possesses the sole right to operate the
and all management rights
repose in it unless otherwise limited in the collective bargaining agreement or applicable
A. To direct all operations of
B. To hire, promote, schedule
and assign employees in positions within the Department;
. . .
E. To maintain efficiency of County operations;
. . .
I. To determine the methods,
means and personnel by which Departmental operations are to be
. . .
Section 1. The seniority of
all employees covered by the terms of this Agreement and
completing their probationary period shall begin with the employee's original date of
An employee's seniority shall not be diminished by temporary layoffs due to lack of work or
funds or any other contingency beyond the control of the parties to this Agreement. Such
shall be considered unit-wide seniority and shall be used for fringe benefit determination and
otherwise mentioned herein.
Section 2. Should it become
necessary to reduce the work force for any reason, the principle
of departmental seniority shall be recognized and applied. The qualified employee having the
length of service shall be the last laid off and the first called back to employment.
. . .
PROMOTIONS AND VACANCIES
Section 1. In the event a job vacancy or new
position occurs, within five (5) calendar days,
a notice of the vacancy or new position shall be posted on the employees' bulletin board for
five (5) days. Should management require time to review organizational needs with regards
vacancies or new positions a notice of this will be posted in five (5) calendar days. Said
contain the prerequisites for the position and said prerequisites shall be consistent with the
requirements for the position. Those employees within the bargaining unit who meet the
may apply and they will be considered in the following order:
A. First, those employees who have applied from
within the Department in which the vacancy
occurred will be considered in order of their seniority rights, provided that they are able to
perform the duties required by the job.
B. Where there are no qualified
applicants from within the Department in which the vacancy
occurred, consideration will be given to other qualified employees in the bargaining unit,
according to their unit-wide seniority.
C. In the event none of the
applicants qualify for the position, the Employer may then advertise
publicly to fill the position.
Section 2. The Employer
may make temporary appointment to any job vacancy where
considered necessary because of the work requirements of that position while the procedure
such vacancy is carried out.
The Douglas County Department of Human Services maintains three distinct units for
Services, Youth Services and Child Protection Services and employs social workers to staff
The Grievant has been employed by the County since June 15, 1995, and, at the time the
leading to the grievance took place, she was working part-time as a social worker in the
Services unit, with a classification of Social Worker II. In August, 2001, one of the
workers in the Adult Services unit died. The Grievant informed her supervisor, Mary
she was interested in the vacant position, but received no response. Rather than post a
the Adult Services unit, the County ultimately transferred social worker Cathy Coffman into
position from the Child Protection Services unit and redistributed her caseload among the
Protection Services and Youth Services social workers. Coffman was a full-time employee
seniority date of April 5, 2001. No new employees were hired as a result of the loss of the
Adult Services employee. The Grievant filed a grievance based upon the County's failure to
fill the Adult Services position, which was denied. The grievance then proceeded to
the hearing, the parties stipulated that the Grievant was qualified for the full-time Adult
position. Additional facts will be referenced, as necessary, in the discussion section of this
POSITIONS OF THE PARTIES
Article 12 of the collective bargaining agreement specifies that a job vacancy must be
within 5 days of the occurrence of the vacancy and that the position must be filled on
the basis of seniority, provided the candidate is qualified. This language is clear and
According to Elkouri and Elkouri, How Arbitration Works, 5th
Edition, arbitrators should apply clear
and unambiguous contract language according to its terms.
There is also a long-standing past practice in the Department of posting vacant
testimony establishes that new positions were always posted. Further, although work was
occasionally redistributed within units without posting, whenever employees moved between
the positions were posted. The only exceptions were two occasions when employees, with
consent, were temporarily assigned to other units. The reassignment here was permanent
and did not
have Union consent.
The County's action undermines seniority, one of the employees' most fundamental
rights. The Grievant expressed interest in the position and would have applied for it had it
posted. Arbitrators have long recognized that seniority is intended to protect the rights of
employees to job protection and promotion preference over less senior employees and
employer's power to unilaterally control the work force. (Citations omitted.)
The County did not have a valid reason for not posting the vacancy. The record
a vacancy did exist, but the County did not post it. Instead, it transferred a less senior
the position from another unit, thereby denying the Grievant, who was more senior and
the position, from applying for it. Arbitral precedent holds that employers must post open
and violate labor agreements by transferring employees to avoid posting obligations. [Cf;
Rogers-Wayne Products Company, Inc., 92 LA 882 (House, 1989); Interstate Container
LA 553, (DiLaurio, 1991); Chromalloy Gas Turbine, 113 LA 444 (Marx, 2000); City of
Racine, A/P M-94-163 (Yaffe, 1994), Rusk County Highway Department, Case 56 30 0014
Reconfiguring the position is an "end run" around the contract. Management's
to not fill vacancies must be weighed against the employees' rights to post for vacant
Testimony of supervisor Kate Peterson acknowledged that, in management's view, position
could go on indefinitely with the result that a position might never be posted. The ability to
vacancies is a significant right, particularly for social workers, as arbitrators have
Brown County, MA-5956, (McLaughlin, 6/11/90)].
The County pleads economic necessity in justifying its actions. This might have
position was eliminated or left vacant, but it was not. Rather, the County merely transferred
senior employee into the position. This practice was rejected in Anaconda Community
114 LA 132 (Pool, 2000). For the reasons set forth above, the grievance should be
The submission of a packet of job postings by the Union does not establish a past
posting, it merely shows that the County has posted positions when it has determined that a
exists. Here, there was no vacancy. Due to considerations of workload and fiscal
was a reassignment of duties, but no additional staff was added. This practice has received
approval. [Cf; Vernon County, Case 93, No. 51167, MA-8517 and Case 94, No.
The Grievant would have had the right to post for a position, if it existed, but it did
County exercised its legitimate management right under Article 2 to manage its workload,
its staffing needs and make assignments accordingly. Budget problems arising in the summer
caused Department managers to look for methods to control costs. It was known among
workers that the caseload in the Department was down and that when an opening occurred in
the units staff would be reassigned. The contract does not address reassignment or transfer,
they are legitimately within management's purview under the management rights clause.
on instructions of the County Board of Supervisors, the Department elected to not fill two
one management and two social worker positions without objection from the Union. The
to reassign social workers was not arbitrary, but was based on state standards regarding
On this basis, numerous social workers have been reassigned at various times.
After the grievance was filed, the Administrative Coordinator implemented the
Board's requested hiring freeze in light of the Governor's proposed shared revenue cuts.
Cathy Coffman transfer was not a job posting issue, a seniority issue, or a promotional
It was a reassignment of job duties, which in no way benefited Coffman. Coffman was
the Adult Services unit and the transfer was the least disruptive alternative for all employees.
the County elevated the Grievant, it would have required the lay off or reduction of a
employee, with a corresponding loss of wages and benefits. Social workers are social
although the job duties vary somewhat from unit to unit, the essential job requirements are
This essential management function is recognized in Elkouri and Elkouri, How
5th Edition, pps. 702 and 723.
Because there was not a vacancy, the County did not have a requirement to post or
position. Instead, it appropriately reassigned work according to recognized state standards.
contract was not violated and the grievance should be dismissed.
At the outset, it should be noted that the parties are in agreement on a couple of
points. They both agree that, under the contract, if a vacancy existed in the Adult Services
County had an obligation to post it. They further agree that if such a vacancy
had been posted, the Grievant was qualified to fill it. The essential point of
disagreement is whether
there was, in fact, a vacancy in the Adult Services unit. If, as the Union contends, a
created by the death of the former social worker, then the County had a duty to post and fill
position according to the requirements of the contract. If, as the County asserts, the vacated
was eliminated and the work reassigned, then the County was within its management rights
reassign the work within the Department as it saw fit. Evaluating the merits of the
positions requires a careful assessment of the language of the contract and the descriptive
used within the Department.
Article 2, the management rights clause, confers on management the general power to
". . .
hire, promote schedule and assign employees in positions in the Department;" as well as to
". . .
determine the methods, means and personnel by which Departmental operations are to be
That power is qualified, however, to the extent that it is ". . . otherwise limited in the
bargaining agreement . . ." Thus, management has the autonomy to determine its workforce
When it addresses those needs, however, it cannot act in conflict with the other provisions of
contract. In this case, management's reallocation of duties within the Human Services
must not contravene the requirements of the posting and filling language of Article 12.
Article 12, Section 1, not only specifies that vacancies must be posted, it also sets
method by which they must be filled. Thus, subparagraph A gives preference to qualified
within the Department, on the basis of seniority. If no such applicants come
B gives preference to other qualified applicants within the bargaining unit, on
the basis of seniority.
Inasmuch as the bargaining unit is comprised only of social workers within the Human
Department, the word "Department," as it is used in subparagraph A must mean something
the Human Services Department as a whole otherwise subparagraphs A and B would be
The logical conclusion is that "Department," as here used, means one of the three distinct
worker units Adult Services, Youth Services or Child Protection Services
within the Human
Services Department. This is borne out by Union Exhibit #2, which reveals that internal job
for social worker positions typically specify the unit within which the position is located.
weight to the Union's argument that social worker positions are not generic, but are unit
The County cites instances in the past where it has reassigned employees without
objection in support of its action here. The evidence suggests, however, that those
temporary, which was permissible under Article 12, Section 2. Inasmuch as Cathy
reassignment was permanent, these past instances are not relevant.
The County also argues that it has not always posted vacated positions and, therefore,
is not a binding past practice requiring it to do so here. It buttresses its argument with
Exhibit #3, which reveals that after Cathy Coffman was reassigned to the Adult Services unit
former position in Child Protection was not filled. Also, when the Grievant
was ultimately awarded a full-time vacancy her former part-time position was not
filled. I do not find
the existence of such a practice based on the record, nor is such a finding essential to my
There is no requirement that the County fill every vacated position, only that if it determines
there is a vacancy and fills it, it do so according to the requirements of the contract.
The County asserts that the death of the former social worker did not create a
Rather, it contends that it merely reassigned her duties to another bargaining unit member,
due to a reduced workload, was able to redistribute the other employee's former caseload
remaining social workers in the Child Protection and Youth Services units and eliminate her
position. The reduction in force was made necessary by budget constraints and, by handling
it in this
fashion, the County was able to avoid laying off or reducing any employee in the bargaining
Based on the record before me, I find that the death of the former social worker did,
create a vacancy in the Adult Services unit and that the County was bound to post and fill it
to the terms of the contract. I base my decision upon the following considerations:
1. The County and the Union regarded the social workers units as distinct and
them as such, as shown by the language of Article 12 and the history of posting positions for
2. When the previous social worker died, the County did not eliminate a position
Services and redistribute her workload among the remaining Adult Services Social Workers.
it transferred Cathy Coffman into her former position and then redistributed Coffman's
caseload and eliminated her former position in Child Protection Services. This is established
County Exhibit #3, which, as previously noted, shows that Coffman's former position has
filled. Coffman remains, however, which can only be because she occupies a position in
This reveals that the County regarded the Adult Services position as vacant and
as expendable, based on caseload size. In addressing this situation, the County pursued what
perceived as the path of least resistance. By moving Coffman into Adult Services it was able
eliminate a position, redistribute the workload in Child Protection Services, where the
down, leave all remaining staff in place and avoid a need for a layoff or reduction.
also violated the contract. Once it determined that a position in Adult Services needed to be
it was bound to post it and fill it according to Article 12. At that point, the Grievant, as the
senior and qualified applicant in the unit would have been entitled to the position and the
increase in hours. This scenario may well have required the County to then consider
eliminating the position of its least senior social worker in order to meet its budget needs,
but so be
it. That is one of the advantages seniority provides and for which the Union has bargained.
Based on the foregoing and the record as a whole, I hereby enter the following
The County violated the contract by not posting for bargaining unit members the
created by the Adult Services Social Worker. In consequence thereof, the County shall pay
Grievant a sum equivalent to the difference between her actual hours worked and a full-time
between November 1, 2001, and December 10, 2001, computed at her hourly rate of $18.29,
with all additional benefits to which she would have otherwise been entitled.
The arbitrator will retain jurisdiction of this case for a period of sixty (60) days to
issues arising in the implementation of this Award.
Dated at Madison, Wisconsin, this 14th day of November, 2002.
John R. Emery, Arbitrator