BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
NICOLET AREA TECHNICAL COLLEGE FACULTY
NICOLET TECHNICAL COLLEGE
Mr. Gene Degner, Executive Director, Northern Tier UniServe
Central, P.O. Box 1400,
Rhinelander, WI 54501, appearing on behalf of the Union.
Michael, Best & Friedrich, L.L.P., by Attorney Robert W. Mulcahy,
100 East Wisconsin Avenue,
Suite 3300, Milwaukee, WI 53202-4108, appearing on behalf of the College.
The Nicolet Area Technical College Faculty Association, hereinafter referred to as
and the Nicolet Technical College, hereinafter referred to as the College, are parties to a
bargaining agreement (CBA) which provides for final and binding arbitration of certain
which agreement was in full force and effect at all times mentioned herein. The parties
Wisconsin Employment Relations Commission to assign an arbitrator to hear and resolve the
grievance regarding the College's decision not to allow Bryan Shoneboom, hereinafter
as the Grievant, to displace or "bump" other less senior employees following his layoff. The
undersigned was appointed by the Commission as the Arbitrator and held a hearing into the
in Rhinelander, Wisconsin, on October 29, 2002, at which time the parties were given the
to present evidence and arguments. The hearing was transcribed. The parties filed
briefs by December 15, 2002, marking the close of the record. Based upon the evidence and
arguments of the parties, I issue the following decision and
The parties were unable to stipulate to a statement of the issues and have left it to the
Arbitrator to frame the issues to be decided.
The Union would frame the issue as follows:
Did the College violate the rights of Bryan Shoneboom under
the Collective Bargaining
Agreement between the parties, in particular, Article XVIII [sic], Layoff, when they
laid him off and
did not allow him to bump into position [sic] for which he was qualified? If so, what is the
The College would frame the issues as follows:
Is the Machine Tool program in the same program area or
subject area as the Internship
If no, then the grievance must be denied.
If the resolution of issue No. 1 is not dispositive of
the grievance, then:
Does Article VXII(E) [sic] permit a
certified instructor in the Machine Tool program area to
bump into a non-certified Internship Coordinator position?
If no, then the grievance must be denied.
If the resolution of issue No. 2 is not dispositive of
the grievance, then:
Is the Grievant qualified for the Internship
The undersigned frames the issue as follows:
Did the College violate the terms of the Collective Bargaining
Agreement when it denied the
Grievant the opportunity to displace a less senior bargaining unit employee following the
If so, what is the appropriate remedy?
ARTICLE VII. GRIEVANCE
. . .
Level Six. If the grievant is not satisfied with the disposition of
the grievance at Level Five, the
grievant may submit it to the Wisconsin
Employment Relations Commission (WERC) for final and binding
arbitration. The arbitrator
shall have no authority to amend, modify, nullify, ignore, add to, or subtract from the
provisions of this agreement.
. . .
ARTICLE XVII. LAYOFF
. . .
A bargaining unit employee who receives
final notification of layoff may displace any other
bargaining unit or non-bargaining unit employee who would be a bargaining unit employee
if employed more than 50 percent in day or evening assignment with less seniority in the
program area or subject area for which he/she is certified or certifiable and qualified.
A bargaining unit employee who receives
notice of layoff has five (5) working days from
notification date to inform the President in writing whether he/she wishes to displace another
bargaining unit employee and specifically identify the subject areas or bargaining unit work
areas of displacement.
. . .
The Grievant was employed by the College as an instructor in the Machine Tool
and Machine Tooling Technics Program in 1997 and continued in that capacity until June of
when he was laid off. Upon receipt of his layoff notice, the Grievant informed the College
intended to exercise his rights under Article XVII, Section E of the CBA and displace into
one of four
positions for which he believed he was qualified. He listed the positions in order of his
Business and Industry Trainer/Facilitator
Transition/Placement Specialist/Tutor Program Coordinator
The College denied his request to displace or "bump" into any of the above positions
following grounds: it found him to be "not certified or certifiable" to teach in the Basic
area; it found him to be lacking in academic preparation and work experience in the "areas
make (him) certifiable to teach in Instructional area 102 (Business and
Industry Training/Facilitator); it found him to be not qualified to fill the
Specialist/Tutor Program Coordinator position because he did not have at least a "bachelors
in an area closely related to career development, human services, or education" nor did he
"substantial experience in employment counseling, job development, and in working with a
spectrum of students including those with disabilities;" and it found him not to be qualified
Internship Coordinator position because he had no academic preparation or work experience
providing direct placement and follow-up services for students nor did he have a solid
relationship with businesses who use interns in a wide variety of program areas.
The Union filed a grievance on behalf of the Grievant which was not satisfactorily
resolved at any of the first
five levels of the grievance procedure. The grievance now appropriately comes before the
undersigned pursuant to the
terms of Article VII, C. 6 of the CBA.
THE PARTIES' POSITIONS
The Union argues that the Grievant is qualified to bump into either of two positions:
Internship Coordinator position or the Transition Placement Specialist/Tutor Program
It maintains that the College should provide for a period of on-the-job-training to allow the
sufficient training to transition into the job. The College must extend a "breaking-in" period
bumping employees to become acclimated to a new position. Failure of the College to do so
so narrowly define the bumping rights section of the CBA so as to render it irrelevant.
The fact that the CBA provides for bumping rights "offsets any claim by the College
that the person currently
holding that position is better qualified." "Better qualified" is not a criteria which should be
professional training and limited experience, such as possessed by the Grievant, are sufficient
qualifications for either
of the two positions.
The Union identifies the "key phrase" in the CBA to be the reference to "same
program area or subject area"
found in Article XVII, E, (1). It argues that the phrase which follows, "for which he/she is
certified or certifiable and
qualified," was added simply to cover those positions which required certification and does
not narrow the focus of the
right to bump strictly to those positions which require certification. The word "program"
encompasses a much broader
area than just the academic program in which the Grievant teaches. An example is found in
the College catalog's
reference to a continuing education program which the Union argues is so broad that
"anything fits" into it. It refers
to other catalog references to "Associate Degree Programs," Technical Diploma Programs,"
University Transfer Programs," Science Degree Programs" and "Basic Education Programs"
and a reference to the
"post-secondary programs" and draws the conclusion that ". . . a program is
made up of several courses or several
subject areas. Internship and tutoring would just be one of those courses or subject areas
included in the program."
The College offers
many services to its students which are "auxiliary" in nature, but are none-the-less part
of a program. Therefore, the
reference in Article XVII, E, (1) to "program area" is broad enough to embrace the two
positions into which the
Grievant wishes to bump.
Giving further support to the Union's interpretation of the word program as used in
XVII is the language found in subparagraph 2, Section E of that article which requires the
employee to notify the College of the specific subject area or bargaining unit work area into
he or she wishes to bump. The Union concludes that this language, when read together with
language in the preceding paragraph under Section E, renders the term "bargaining unit work
synonymous with the term "the same program."
The Union argues that the Grievant should not be estopped from asserting his right to
into the position of Transition Placement Specialist/Tutor Program Coordinator merely
failed to present evidence of his qualifications to do so at any given stage of the grievance
including, presumably, the hearing before the Arbitrator because the College did not offer
Grievant anything in return for him dropping the claim. The Grievant never indicated that
he did not
wish to be considered for the position and, hence, should be considered for it now.
Finally, the Union re-affirms that the Grievant is qualified for either of the above two
positions. He is qualified for the Internship Coordinator position because he "has done
almost all of
the responsibilities as required to a great degree, and has testified he has the ability and
do the remainder." He is qualified to fill the Transition Placement Specialist/Tutor Program
Coordinator position because he testified that he was and because of his teaching history and
experience and his academic training.
The College first argues that the Arbitrator has no jurisdiction over the question of
the Grievant may bump into the Transition/Placement Specialist/Tutor Program Coordinator
because the Union failed to exhaust its remedies under the contractual grievance procedure.
the Union failed to advance any evidence on this issue at level four or level five of the
procedure and because "It is well settled that the Arbitrator has no authority to render
a claim that has not been processed through the grievance procedure to arbitration" this
the grievance must be denied. If that were not enough, this part of the grievance must still
because the Union failed to provide any testimony or other evidence at the hearing about the
Grievant's qualifications for the position or to show that the position was in the Grievant's
or subject area or that he was certified/certifiable for it. Absent such evidence the Union
carrying its burden of proof.
The CBA's bumping rights are very limited. The Grievant has no contractual right to
into the non-certified Internship Coordinator position because the CBA restricts his bumping
to those positions in the Machine Tool program or subject area. The
Grievant's program area is the Machine Tool program, one of 26 program areas
deliniated by the
College. He was an instructor certified in the Machine Tool program only and all of his
was in that field. Consequently, he was not certified or certifiable in any other program
areas are designated by a number in the course catalog and the Grievant was certified in
number 420, which corresponds to the fundamental courses in the Machine Tool program.
also certified to teach in subject area number 404 but he was not certified, nor certifiable, to
in any other subject area. Since the CBA restricts his bumping rights to junior positions
Machine Tool program area and subject area 420, he has no rights to bump into another
The Internship Coordinator position is not in the Machine Tool program area or
420 because it reports to the Director of Evaluation/Placement-Special Needs and is in his
area. There is no evidence contained in this record which could support the argument that
position could be classified as a Machine Tool program position. Because the CBA prohibits
bumping outside of the employee's program area or subject area, and because the Internship
Coordinator is not in the Grievant's program area or subject area, the grievance must be
The CBA restricts bumping into any position which does not require certification.
Internship Coordinator position does not require certification, even if it were in the same
and subject area, which it is not, it is nonetheless outside the scope of the Grievant's
Any other interpretation, says the College, would render the phrase "certified or certifiable"
something arbitrators should seek to avoid since arbitrators should generally apply a
the parties intended their words to have meaning and effect. The Union has offered no valid
to deviate from these established contract interpretation principles. The College asserts that
arbitrators have repeatedly held that were the CBA permits bumping into positions for which
certification is required, then only those positions for which certification is required are
available bumping "pool."
The Grievant is not qualified to fill the Internship Coordinator position. The
the exclusive right to determine qualifications necessary for a particular position and, subject
arbitrary and capricious standard, the arbitrator should not intervene in setting qualifications.
the qualifications established for the position of Internship Coordinator were developed based
the job duties of the present incumbent and were not arbitrary or capricious. Additionally,
Grievant fails to meet the experience or knowledge requirements established for the position.
does not have three to five years of direct placement services and any experience he may
received through working with placements in the Machine Tool area comprises less than 5%
total interns placed in 1999. Also, he does not have extensive knowledge of the area labor
another requirement of the position; he has not had experience working with social services
community agencies providing employment related services; he is not actively involved in
or community organizations which deal with job placement and employment issues; there is
evidence that he is a Certified Job Developer or that he is certified to teach A.R.T. training
(Attracting, Retaining and Training Employees); he would need some training on areas that
internships; and, most significantly, he has a lack of experience working with employers in
served by the
College. All of these things are requirements of the job and his shortcomings in these
him not qualified for the Internship Coordinator position. The Grievant would not have been
an interview had he submitted his resume off the street due to his failure to meet the
qualifications of the job.
The College finally asserts that the CBA does not require it to train the Grievant for
position. The fact that the Grievant may have the ability to become qualified for the job is
because the contract only grants him the right to bump into positions for which he is
certifiable and for which he is qualified," not into positions for which he "believes he could
qualified with training."
The Arbitrator finds the meaning of the language in Article XVII, Section E,
1 and 2 on their faces to be clear and unambiguous, making an examination of past practice
bargaining history unnecessary.
The College correctly asserts in its brief that the bumping rights established by the
very limited. It permits a laid off employee to displace 1) a less senior employee, 2) in the
program area or subject area, 3) for which he/she is certified or certifiable and qualified.
is not an issue in this case.
The Union argues that the word "program" encompasses a much broader meaning
than just the academic
program in which the Grievant teaches. It points to references in the College's catalog
which use the word program
and suggests that these references prove that virtually "anything fits" into the definition of
the word "program." It
says that many services offered by the College are auxiliary to its academic programs and, as
such, should be available
to the Grievant to bump into. This construction ignores the fact that the College's catalog
(Employer Exhibit 15)
specifically outlines each degree and diploma program under the "Educational Offerings"
section. There are 26 of
them. One of them is the Machine Tool Operation and Machine Tooling Technics program,
the educational program
in which the Grievant is certified to teach. In the description of each educational program is
a paragraph entitled
"About the Program." There are numerous other references to the word "program" in the
catalog, the vast majority
of which refer to the "educational" programs listed in the catalog. Hence it is clear that the
"program" referred to in
the bumping section of the CBA refers to the educational programs set forth in the catalog.
The Union's construction also ignores the rest of the language in subparagraph 1
which, of course, must be
read together with the preceding language relating to "program area." The rest of the
language says "or subject area
for which he/she is certified or certifiable and qualified." This tells us quite clearly that in
order to exercise his
displacement rights the Grievant must be certified or certifiable and qualified to teach the
courses into which he or she
seeks to bump, and the courses must be in the same program area (Machine Tool Operation
and Machine Tooling
Technics) or subject area, (in the Grievant's case areas 404 and 420), in
which he or she is currently certified or certifiable and qualified. The intent of the
parties to restrict bumping rights
in this way is clear from the foregoing language. If the parties had intended to grant the
broad bumping rights the
Union's construction would allow they could have simply provided for bumping rights to
apply to "any bargaining unit
position for which he/she is qualified or for which he/she could become qualified."
Acceptance of the Union's
construction would amount to a de facto modification of the terms of the
CBA, a remedy which the Arbitrator is not
authorized to provide under Level Six of the grievance procedure. If the Union wishes to
extend bumping rights in
this way it must do so at the bargaining table.
The language in subparagraph 2 merely sets forth the time period during which the
employee must give notice to the administration of his or her intention to exercise bumping
of the position into which he or she intends to bump. It does not modify or expand the
the word program in subparagraph 1.
The Union is also wrong in its assertion that the Grievant should be able to bump
the position of either
Internship Coordinator or Transition Placement Specialist/Tutor Program Coordinator,
neither of which require
certification. The CBA's reference to "certified or certifiable" as opposed to language such
as "for which he/she is,
or could otherwise become, qualified" is indicative of the parties' intent to grant
displacement rights only into positions
which require certification. Any other interpretation would render the existing
language meaningless and create
ambiguity where non currently exists, a result contrary to sound principles of contract
Given the foregoing analysis, it is not necessary for the Arbitrator to address the
waiver or estoppel nor is it necessary to analyze the qualifications, or lack thereof, held by
In light of the above, it is my
No. The College did not violate the terms of the Collective Bargaining
Agreement when it denied
the Grievant the opportunity to displace a less senior bargaining unit employee following the
Grievant's lay off.
The subject grievance is denied.
Dated in Wausau, Wisconsin, this 14th day of February, 2003.
Steve Morrison, Arbitrator