BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute between
EAU CLAIRE AREA SCHOOL DISTRICT
LOCAL 4018, EAU CLAIRE SCHOOLS CLASSIFIED
Weld Riley Prenn and Ricci, S.C., by Attorney Stephen L.
Weld, 3624 Oakwood Hills Parkway,
PO Box 1030, Eau Claire, Wisconsin 54712-1030, appearing on behalf of the Eau Claire
Ms. Patricia Underwood, Representative, Wisconsin Federation
of Teachers, 811 9th Street West,
Altoona, Wisconsin 54720, appearing on behalf of the Wisconsin Federation of Teachers,
4018, Eau Claire Schools Classified Staff, WFT, AFT, AFL-CIO Union.
The Eau Claire Area School District (hereinafter District) and Local 4018, Eau Claire
Classified Staff Union (hereinafter Union) are parties to a collective bargaining agreement
in effect at all times relevant to this proceeding which agreement covered all regular
assistants, clerical and data processing employees. A request to initiate grievance arbitration
with the Wisconsin Employment Relations Commission on November 11, 2002. Chairperson
R. Sorenson was appointed to act as Arbitrator on November 14, 2002. A hearing took
December 9, 2002, at 9:00 a.m. in the School District Offices of the Eau Claire Area School
in Eau Claire, Wisconsin. A tape recording was made of the hearing. The parties were
opportunity to file post hearing briefs. Post hearing briefs were received by the Arbitrator
27, 2003. The record was closed on January 27, 2003 after the receipt of the briefs.
Did the employer violate Section 6.08 of the Collective
Bargaining Agreement, by not
allowing the grievant, Ms. Patricia Rufledt, to transfer to the General Services Clerk-Payroll
If so, what is the appropriate remedy?
Did the Eau Claire Area School District violate Section 6.08
the 2000-2002 Collective
Bargaining Agreement, when it denied Patricia Rufledt's request to fill the position of
Did the Eau Claire Area School District violate Article VI,
Section 6.08 of the 2000-2002
Collective Bargaining Agreement, when it denied Ms. Patricia Rufledt's transfer request to
position of General Services Clerk-Payroll?
Article IV - Board of Education
The Board retains all rights of possession,
care, control and management that it has by law, and
retains the right to exercise these functions during the term of the collective bargaining
except to the precise extent such functions and rights are explicitly, clearly and unequivocally
restricted by the express terms of this Agreement. These rights include, but are not limited
enumeration to, the following rights:
1. To direct all operations of
the school system.
. . .
3. To hire, promote, transfer,
schedule and assign employees in positions with the school system.
. . .
6. To maintain efficiency of school system operations.
. . .
9. To select employees, establish
quality standards and evaluate employee performance.
. . .
11. To determine the methods, means and personnel by
which school system operations
are to be conducted.
Article VI - Employment Security
. . .
Section 6.08 - Transfer
A qualified employee will be granted a
transfer before a new employee is hired, except for
positions in Group B. Every qualified employee has the right to a personal interview before
is made, unless automatic transfer applies. Employees not granted transfer may request
denial within five (5) days of receipt of the denial of transfer. In the case of school district
with all variables being equal, coin toss(es) will decide who is granted the transfer. For the
of transfer, consideration is given separately by grouping in the following categories:
Group A: Food Services Bookkeeper
Payroll and Benefit Clerk
Accounts Payable Clerk
Business Office Clerk
General Services Clerk-Payroll
Payroll/Accounts Payable Clerk
Group B: Microcomputer and Electronic Technician
Instructional Services Executive Secretary
Instructional Media Secretary
Curriculum & Instruction Secretary
1. An employee will be transferred, if a request is
made, within, but not between, each of the
Group D, E, F, G, H, I, J, K, L, M, N, O and P
The decision as to which employee is transferred, if more than
one applies, will be made on the
basis of seniority.
2. Transfer within Groups A or C will be granted
provided the employee is qualified for the
position and is the most senior qualified employee requesting transfer within the transfer
3. Transfer(s) between Groups
A, C, D, E, F, G, H, I, J, K, L, M, N, O and P or to/from Group
B to any other of the preceding groups, may be granted on the basis of qualifications and
4. A requested transfer within
or to a position in Group B may be made at the discretion of the
STATEMENT OF THE CASE
This grievance involves the Eau Claire Area School District ("District") and the
Federation of Teachers, Local 4018, WFT, AFT, AFL-CIO ("Union"). Specifically the
relates to the Collective Bargaining Agreement covering all the regular educational assistants,
and data processing employees. (Jt. Ex. 1) The Union alleges that the District violated the
Bargaining Agreement by failing to abide by terms of Section 6.08 of the agreement by
Patricia Rufledt's request to transfer to the General Services Clerk-Payroll position. The
takes the position that it did not violate Section 6.08 of the Collective Bargaining Agreement
they filled the open General Services Clerk-Payroll position with the person temporarily in
position, Ms. Corinne Gjerning.
The General Services Clerk-Payroll position is a 7.5 hour/day position within the
department, and is classified under the Collective Bargaining Agreement for purposes of
a "Group A" position. The position is under the supervision of the Director of Finance and
responsible in part for administering the District's Section 125 Flexible Spending Program
Section 403(b) Tax Sheltered Annuity Plan.
There is a unique set of circumstances in this case. The position in question (General
Clerk-Payroll) had been held by a collective bargaining unit member, Debbie Gilles. In
April of 1999
she requested and was granted a leave of absence from that position to fill a non-bargaining
position - Executive Assistant in the Personnel Department. At that time, Ms. Gjerning was
temporarily fill the position of General Services Clerk-Payroll. The position of General
Clerk-Payroll remained a temporary appointment on a year-to-year basis for the next three
Ms. Gilles continued in her status as "on leave from the position of General Services
Finally in the spring of 2002 Ms. Gilles vacated the position of General Services
accepted the Personnel Department's Executive Assistant position on a full-time basis. The
then posted the General Services Clerk-Payroll position as available to be filled on a
Interested persons were to notify the Personnel Department in writing on or before May 31,
The applicants for the position included the grievant, Ms. Rufledt, and four others,
Lancette, Alice Walker, Sue Pinkert and Ms. Gjerning. The Director of Finance, John
determined that Ms. Pinkert had not taken a clerical skills test and therefore was ineligible.
determined that Ms. Walker, Ms. Lancette and the grievant, Ms. Rufledt, were not qualified.
determined Ms. Gjerning, was qualified in that she had filled the position for three plus
done a good job and possessed a good working knowledge of all of the programs she would
required to administer.
After the grievant was notified that she had not received the requested transfer, she
as to why she was not selected for the position. Ms. Rufledt was advised that she was not
because she had little or no experience in working with either Section 125 Flex Spending
or Section 403(b) Tax Shelters Annuities. Further, she was informed that it would require
training before she would be qualified to assist with the processing of the payroll, and
At the time of the posting for the position, the grievant, Ms. Rufledt, had a seniority
October 5, 1989. Of the five applicants for the position, Ms. Lancette was the most senior
of all of
the applicants. Ms. Gjerning traced her seniority to her appointment as a temporary
the position of General Services Clerk-Payroll since April of 1999.
The Union filed a grievance alleging the District had violated Section 6.08 as of
2002. The grievance referenced the District's denial of Ms. Rufledt's request to transfer to
General Services Clerk-Payroll position. The Executive Director of Personnel denied the
grievance on August 2, 2002. He based his decision on:
1) the fact that Ms. Rufledt
was currently an employee holding a position in Group B;
2) she was
seeking to transfer to a vacancy in Group A;
collective bargaining agreement in section 6.08 (3) states: Transfers between Groups A,
C, . . ., or to/from Group B to the other proceeding groups, may be granted on the basis of
qualifications and seniority.
Mr. Kling opined that the grievant would, as a result of
transferring out of Group B to
Group A, have to be judged not only on seniority, but also on the basis of
qualifications. It was Mr.
Kling's position that Ms. Rufledt was not qualified for the position of General Services
and therefore properly denied the transfer even though she may have more seniority than the
The grievance was advanced to the Board of Education for their review. Following a
the Board of Education also denied the grievance. The Board concluded that
Section 6.08 was
ambiguous. The Board also made a finding that Ms. Gjerning was not a "new employee" in
had served in this position for more than three years. The Board found that Ms. Gjerning's
in the position as a temporary employee was done with Union concurrence and knowledge.
Board also concluded that the phrase "new employee" was not meant to preclude members of
bargaining units or non-represented employees from competing with bargaining unit members
bargaining unit vacancies. The Board adopted the position that new employee meant
currently employed by the District. Therefore it was their opinion that the hiring of Ms.
not the hiring of a new employee. Finally the Board concluded that Ms. Gjerning was the
qualified candidate for the position.
POSITIONS OF THE PARTIES
The Union argues that the language found in Article IV, Section 6.08 may be
but it is clear. The Union contends that Ms. Rufledt has been a union member since October
1989, was a member at the time of the posting and her application. The position in the
bargaining group she held was the Curriculum and Instruction Secretary. The Union points
her position as Curriculum and Instruction Secretary is a "Group B" position. The Union
Jt. Ex. 16 to demonstrate that the current position of Curriculum and Instruction Secretary
a high level of performance expectations. Beyond specific requirements listed in her job
the Union points to Ms. Rufledt's testimony that she was one of four district employees who
selected previously to participate in a pilot program. This program was one in which school
personnel from outside of the payroll department would be trained to enter timecards into the
District's payroll system for substitute teachers, and prepare a detailed report of timecard
and forward the same to the Payroll Department. Ms. Rufledt further testified that she had
six week courses of Excel to staff and community through the District's Technology Staff
Development Department. She indicated that she had prepared her own curriculum for these
She testified that she had knowledge of Section 125 Accounts, as well as knowledge of
Section 403(b) TSA Accounts through previous education and employment
The Union, through Ms. Rufledt's testimony, challenged the validity of the letter that
given to Ms. Rufledt by Mr. Kling in response to Ms. Rufledt's request for the reasons why
not been offered the transfer. In challenging the contents of that letter, Ms. Rufledt indicated
did not believe the statement that she had little or no experience with regard to the Section
the Section 403(b) TSA's was accurate. She said that during her interview she did indicate
had knowledge of these tax sections.
The Union points to the job posting language which refers to the position
desired skills, not required skills. Also, the
Union challenged the statement by Mr. Kling in the
responsive letter (JT. Ex. 10) that Ms. Rufledt would need extensive training before she had
background to carry out the responsibilities of the payroll department. The Union's
based upon the experience that Ms. Rufledt had with the "pilot program" which demonstrated
willingness to learn to operate computers.
The Union Also argues that the word "may" as used in Section 6.08 subparagraph 3
not be taken out of the context of the entire contract and the context of the relationship
Union and the District which has been built over many years. of collective bargaining.
Union calls attention to the first sentence of Section 6.08 wherein the phrase, "a qualified
will be granted a transfer before a new employee is hired", would mean that any employee
who is able
to meet the posted qualifications of the job should be hired before a new employee is hired.
An employee for the purposes of this agreement according to the Union is an
is a member of the Wisconsin Federation of Teachers, Local 4018. The term employee does
reach outside of the four corners of the contract to encompass other individuals who may be
employed by the District but who are not part of the group that are represented by Local
The Union also contends that the Union's knowledge of Ms. Gjerning's status as a
employee is not determinative of any of these issues. The fact that they acquiesced in her
in this special status does not in anyway undermine the Union's position.
In conclusion, the Union submits that Ms. Rufledt was a qualified employee within
meaning of the collective bargaining agreement and that Ms. Gjerning was a new employee
therefore, Ms. Rufledt, as a qualified employee, was entitled to the transfer before the
hire a new employee, in this case, Ms. Gjerning.
The District argues that Section 6.08 of the Collective Bargaining Agreement has
over the years. The District sites the testimony of Union witness Sue Luhm who indicated
language was proposed in the 1980s and negotiated into the contract at that time. The
further contends that the subsections of 6.08 were negotiated over time as a clarification of
general introductory language of Section 6.08 and that therefore the subsections have to be
together to give clarity and understanding to the intent of the contract language. The District
out that transfers in groups D through P are made solely on the basis of seniority. Transfers
groups A and C are made on seniority with the added criteria of "qualified" and transfers
groups A, and C through P, even from group B, rely both on qualifications and seniority.
contends these are distinctions of clear importance.
The District contends that whether or not the first sentence of Section 6.08 or
applies to the current dispute, transfer rights are still predicated on a determination that the
is "qualified" and in this case "qualified for the position of General Services Clerk-Payroll".
District then points out that it has the management right and ability to determine whether or
applicant is qualified. The District goes on to assert its right to establish minimum
a position which are not subject to challenge unless shown to be purely arbitrary and
District points out that it is the Director of Finance, John Sackett, who supervises the
General Services Clerk-Payroll. This job responsibility and his experience in the position put
a good position to determine employee qualifications. He has the training and judgment to
the competency, the training and the experience of the applicant needed to carry out the
of the posted position.
The District distinguishes between the grievant's assertion that she has knowledge of
125 Accounts and Section 403(b) TSA's, and the Districts need to have a person in that
a "current working knowledge" sufficient to administer these plans. The District suggests
grievant herself admitted that she was not qualified by stating that she had no working
Section 125 plans or Section 403(b) TSA plans; and that the extent of her knowledge
programs was limited to their tax consequences.
The District further goes on to point out that the grievant was not qualified to assist
processing of payroll without extensive training. This, according to the District, did not
qualification criteria of the job position.
The District contends that the grievant would not meet the qualifications of the
because based upon the experiences of the Finance Director, the grievant may not have the
necessary to relate well to people. The District asserts that she does not possess the ability
effectively resolve conflict. The District specifically referred to Mr. Sackett's interaction
grievant in the same building and the grievant's decision not to list her current supervisor or
professional staff members as red flags demonstrating a lack of interpersonal skills as listed
in the job
qualifications for the position.
The District deals with the side issue of whether or not the process used by the
determine qualifications for the posted position is fair and impartial. The District points out
employer's judgment in determining employee qualifications ought to be accepted unless
be arbitrary, capricious, discriminatory or made in bad faith. The District asserts that the
used, which included the interviewing of the four remaining candidates after Ms. Pinkert was
eliminated, was uniform and nondiscriminatory. The same questions were asked of each of
candidates and the interviews were conducted in the same professional manner according to
District. The District contends that there was no evidence that the Finance Director's
the grievant was flawed and that there was no showing that the process was in anyway
capricious, discriminatory or done in bad faith.
The District addressed the issue of whether Ms. Gjerning is a "new employee". It
that an existing employee who has already filled the position for three years, is not a "new
The District contends that if the Union meant for a new employee to refer to nonbargaining
employees, it could have and should have drafted language to specifically express that intent.
Reciting Webster's New Collegiate Dictionary, the District points out that "new" means
existing before; appearing, thought of, developed, made, produced, etc. for the first time."
definition, the District contends that Ms. Gjerning was an existing employee and not a new
In conclusion the District contends that in processing a transfer requested from a
position under Section 6.08 to a Group A position, the District must consider qualifications
seniority of applicants. In this case, the grievant was not the most senior
candidate, Mary Lancett was. The grievant was not the most qualified candidate, and
in fact the
District contends that the determination was made that she was "not qualified". Therefore in
the application, the District contends that it was within its power, given the fact that the
should be the sole determiner of whether or not an individual is qualified so long as that
not predicated on arbitrary, capricious, discriminatory or other bad faith considerations.
This is first and foremost a contract interpretation case. The Union alleges that the
violated Article VI, Section 6.08 of the existing Collective Bargaining Agreement regarding
transfer of employees. Therefore the contract language is the obvious place to begin.
The 2000-2002 Collective Bargaining Agreement (Jt. Ex. 1) states in Section 6.08 "a
employee will be granted a transfer before a new employee is hired except for positions in
We begin by recognizing the position sought by the grievant was a position in Group A.
the language of this first sentence of Section 6.08 is applicable. This brings us to the issue
or not the grievant was a "qualified" employee.
We begin our determination of whether or not the grievant was a qualified employee
turning to the position description of General Services Clerk-Payroll. (Jt. Ex. 7) The
description in part requires that an individual must have desired training and experience.
training and experience is defined as, "recent responsible accounting work experience which
include payroll processing; highly skilled in spreadsheet applications, preferably Excel, and
experience/training in word processing programs, preferably Word. Working knowledge of
125 Flexible Spending Accounts and Section 403(b) TSA's." The Union contends that the
does have this desired training and experience. This is despite the fact that there is no
by the grievant that she has any recent responsible accounting work experience. She does
a working knowledge and experience with the Excel Microsoft programs and experience in
with word processing. The District on the other hand conceded that the applicant is a skilled
individual with good knowledge of Excel and word processing programs, but has not met the
experience of "recent responsible accounting work experience."
The Union goes on to suggest that she has knowledge of Section 125 Flexible
Accounts and Section 403(b) TSAs, but admits that she does not have a great deal of
knowledge about these types of accounts outside of knowledge about the tax ramifications of
accounts. The District on the other hand contends that a working knowledge extends beyond
understanding of the tax ramifications of these types of accounts and more heavily
relies on the administrative and reporting requirements surrounding these accounts.
offers the testimony of the Financial Director to support this position. The Union offers no
of qualifications beyond the testimony of the grievant.
The second position qualification listed on the position description refers to the
requirements of the position. They are: "ability to relate well to people, effectively
to resolve conflict. Ability to learn procedures and convey them to others. Ability to
computer, calculator, fax machine and copier." The grievant contends that she does have
abilities. The District does not challenge the grievant's ability to learn procedures or convey
to others or to operate computers and other equipment. But, the District does contend that
a question as to the grievant's ability to relate well to people. Here again we have basically
testimony of the grievant supporting her position and the testimony of the Finance Director
as to his
belief that she lacks the skills to meet the specific requirements. The District also points out
grievant has failed to list any of her supervisors as references which they contend
inability to relate well with people, effectively communicating or resolve conflict.
In furthering its position as to qualification of the grievant for the position, the
examines the various position responsibilities as stated in the position description. (Jt. Ex. 7)
District points out that the grievant has no experience in serving as a liaison between the
District and the Section 125 Flexible Spending Account vendor, the grievant has no
answering or researching the answers to all Section 125 Flexible Spending. The Union does
this assertion, nor is there any testimony that related to the other specific job qualifiers in the
Section 6.08 of Article 4 of the Collective Bargaining Agreement clearly requires the
of qualification as stated above. And the case law reserves onto the District as the employer,
to make this objective determination as to qualification so long as the determination is not
capricious, discriminatory or in bad faith. (see Rusk County Dept. of Social Services. Case
No. 45807, MA-6763 (4/10/92) and Vernon County, Case 119, No. 58776, MA-11055
The Union does not challenge the authority of the District to make the determination
whether or not the employee is qualified. The Union does not allege that the decision was
capricious, discriminatory, or made in bad faith. Rather the Union suggests that the
determination of qualification relies on an objective standard rather than a subjective
Union suggests that mere knowledge of Section 125 Benefit Accounts and Section 403(b)
sufficient to meet the standard of qualified versus nonqualified. The Union suggests that
knowledge of payroll record documentation objectively meets the standard of competency
in the job description. Finally, the Union suggests that the assertion of the applicant is
support a finding of qualification. These assertions however, cannot withstand the scrutiny
The reality is that subjective evaluation by the Department Supervisor has been an
methodology for determining qualification within the Eau Claire School District for a
period of time. The testimony of the Union's own witnesses indicated an acceptance of the
application and interview process. By its very nature, the acceptance of this process means
issue of qualification lies within management discretion. This is of course not without
determination can not be arbitrary, capricious, discriminatory, or done in bad faith. Here the
testimony of Mr. Sackett clearly established that he did not believe that the grievant was
because in his opinion the applicant had no working knowledge of Section 125 or Section
TSA plans especially as to their administration. His evaluation also concluded that she was
sufficiently versed in the payroll processing procedure. Finally, his evaluation indicated that
not the type of individual who related well to people, effectively communicated or
resolved conflict. Much of the grievant's own testimony supported these conclusions. She
her limited knowledge of Section 125 plans and Section 403(b) TSAs. She admitted she had
a limited experience with the payroll process. Her contention was that she had the
skills that would allow her to grasp the concepts and applications given time, experience and
This however was not a precursor of the job.
The final issue deals with the question of new employee. It is the Union's position
Ms. Gjerning would under the terms of the Collective Bargaining Agreement, be
classified as a new
employee. Therefore as viewed by the Union the grievant had to be hired before her because
introductory sentence of Section 6.08. The language of that sentence is confusing.
The Union would have us read it to say that a qualified member of the bargaining
granted a transfer before an individual outside of the bargaining unit is hired. The District
us read the sentence to say a qualified employee of the District will be granted a transfer
nonemployee of the District is hired. A third interpretation could be that a qualified member
bargaining unit will be granted a transfer before an individual not currently employed by the
is hired. Neither side offered any evidence of past practice that would help clarify the
sides, through their testimony, demonstrated the ambiguity. Therefore a rule of reason must
In the particular situation we are dealing with, it seems incongruous that one would
Ms. Gjerning as a "new employee." She had been working for the District in the
position in question
for three plus years. The Union had been very much aware of her existence in that position
taken no affirmative action to resolve what could easily be foreseen as a potential problem
Gilles leave of absence was finally terminated. Logical reasoning would therefore suggest
Gjerning was not a new employee within the intent of the contract.
However, a determination that Ms. Gjerning was not a new employee does not
effect the conclusion that the District did not violate Article 4, Section 6.08. Since no
other than Ms. Gjerning was found to be qualified there is no one to
compare Ms. Gjerning to on the issue of current versus new employee. Only if
there had been a
finding that the grievant was qualified would we have to go on to determine where she was
new employee or a current employee. Stated another way since a determination was made
Ms. Rufledt was not a qualified employee, the language of Section 6.08 gives her no
Ms. Gjerning, whether Ms. Gjerning was a current employee or a new employee.
Based on the record as a whole, the exhibits that were provided and a review of the
law, I issue the following:
The Eau Claire Area School District did not violate Article 4, Section 6.08 of the
Bargaining Agreement. The grievance is denied.
Dated at Madison, Wisconsin, this 5th day of March, 2003.
Steven R. Sorenson, Arbitrator