BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
OFFICE AND PROFESSIONAL EMPLOYEES
LOCAL 95, AFL-CIO
(Cheryl Helms Grievance)
Shneidman, Hawks & Ehlke, S.C., by Attorney Bruce F. Ehlke,
217 South Hamilton, P.O. Box
2155, Madison, Wisconsin 53701-2155, on behalf of the Union.
Attorney J. Blair Ward, Portage County Assistant Corporation
Counsel, 1516 Church Street,
Stevens Point, Wisconsin 54481, on behalf of the County.
At all times pertinent hereto, the Office and Professional Employees Union, Local
AFL-CIO (herein the Union) and Portage County (herein the County) were parties to a
bargaining agreement covering the period January 1, 2001, to December 31, 2003, and
binding arbitration of certain disputes between the parties. On May 23, 2002, the Union
request with the Wisconsin Employment Relations Commission (WERC) to initiate grievance
arbitration regarding the grievance of Cheryl Helms (herein the Grievant) concerning the
the County of her request to exercise bumping rights under the contract and requested the
of a panel of WERC staff from which to select to arbitrate the issue. The parties
designated the undersigned to hear the dispute and a hearing was conducted on October 24,
The proceedings were transcribed and the transcript was filed on November 14, 2002. The
and Union filed their initial briefs on January 2, 2003, and January 6, 2003, respectively.
filed a reply brief on January 14, 2003 and the County filed a reply brief on January
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 County violate Article 8, Section 3 of the collective
bargaining agreement when, after
eliminating the position of Cheryl Helms, it denied her request to be placed in the Sanitarian
If so, what is the appropriate remedy?
The County would frame the issues as follows:
Did Portage County violate Article 8, Section 3 of the
bargaining agreement by not
allowing Cheryl Helms to bump into the Sanitarian position?
If so, what is the appropriate remedy?
The Arbitrator frames the issues as follows:
Did the County violate Article 8, Section 3 of the collective
bargaining agreement when it laid
off Cheryl Helms and did not permit her to move into the Sanitarian position?
If so, what is the appropriate remedy?
ARTICLE 8 SENIORITY RIGHTS AND
Layoff: In laying off Employees because of reduction of forces, when
County shall meet with the Union prior to notifying the Employee(s) who are to be laid off.
Employee with the least amount of seniority within the affected classification(s) shall be laid
provided that those remaining within the affected classification(s) are capable and qualified to
the available work. "Classification" for the purpose of this provision means the job titles
in Appendix "A".
An employee affected by a layoff shall have the option of being
laid off with no loss of
unemployment compensation or moving to the least senior position in the same pay grade
affected department if capable and qualified to perform the duties of that position. In the
laid off employee does not qualify for any position within his/her same pay grade with the
department, the employee may move to a position in a pay grade that is equal or lower in
pay rate if
capable and qualified to perform the duties of that position. In all cases, the laid off
take the lowest senior employee's position in the pay grade first, if capable and qualified,
considered for the next least senior employee's position in that pay grade, etc. If a full time
has a portion of their hours cut, they may bump into the least senior position
(as explained above)
causing that employee to have reduced hours.
The Grievant was hired by the Portage County Department of Health and Family
May, 1994, as a limited term employee in the Environmental Health unit in the position of
In this capacity, she assisted flood victims, tested wells for water quality and inspected
determine compliance with County and State health and food regulations. The position was
subsequently retitled Environmental Health Evaluator, but the duties remained the same. The
Grievant is not a registered Sanitarian, but has obtained the necessary prerequisites for
subject only to passing an exam. In 1998, the Grievant took a position in the Department as
Technician, but also continued to serve as backup Sanitarian. After that point, the regular
duties were performed by two other Sanitarians and the Environmental Health Supervisor,
Michael Carder. In her role as backup, approximately 5% of the Grievant's time was spent
performing Sanitarian duties, primarily collecting water samples and answering telephone
Subsequent to the Grievant becoming a Lab Technician, the Department expanded its
programs and increased the duties of the Sanitarian position. Specifically, the County took
food monitoring from the Department of Agriculture and air quality monitoring from the
of Natural Resources. In addition, in February, 2001, the State, by Administrative Rule,
new food code comprised of regulations for restaurants and retail food establishments, which
Department was tasked to administer, most of which duties fell to the Sanitarians. In
the significant changes encompassed in the new food code and the Department's expanded
enforcing it, from April, 1999, through October, 2001, Carder and the two Sanitarians
days of training on various topics related to the new code. The Grievant was not offered the
opportunity to attend the training and, although interested, did not ask to go.
During the summer of 2001, the Department revised the descriptions for the various
including those of the Grievant and the Sanitarians, and adopted the new descriptions on
7, 2001. Of particular relevance to the Sanitarian position was the addition of a
requirement of one year's experience working with the new food code as a prerequisite
the position. On September 19, 2001, the Grievant was informed in writing by Department
Judy Bablitch that her position of Lab Technician was being eliminated and that she would be
after December 31. On October 16, 2001, the Grievant sent Bablitch a letter notifying her of
intention to bump Sanitarian Keith Baine, a less senior employee, and assume his duties,
the provisions of Article 8, Section 3 of the collective bargaining agreement. She attached
a copy of her qualifications for the position as set out in the position description.
On November 9, 2001, a meeting was held between the Grievant, Carder, Health
Hladky and bargaining unit Chairperson Jeff Jester to discuss the Grievant's intention to
a Sanitarian position. At the meeting, the Grievant's qualifications were discussed and she
questioned on various aspects of the food code to ascertain her familiarity with it. On
2001, Hladky and Carder informed the Grievant in writing that in their opinion she was not
for the Sanitarian position. Specifically, she did not have the requisite one year's experience
with the food code, nor did she have certification in an Environmental Health related field
not registered to obtain such. According to Hladky and Carder, such certification would
need to be
as a certified pool inspector, lead inspector, lead risk assessor, well location inspector,
inspector, asbestos risk assessor, food service manager or registered sanitarian.
Sometime after the November 9 interview, but prior to receiving the written denial,
Grievant enrolled in a course at North Central Technical College to obtain certification as a
professional food manager and obtained this certification on December 17, 2001. She also
a copy of the new food code, as well as videotapes of the workshops attended by Carder and
Sanitarians, in order to increase her knowledge in this area. On December 6, 2001, the
a grievance over the County's refusal to allow her to exercise her bumping rights, wherein
indicated that she had an adequate understanding of the food code and pointed out that at the
the incumbent Sanitarian also did not have the requisite one yearof
working with the code inasmuch
as it had only been effective for 10 months. The grievance did not mention the
certification requirement, the fact that the Grievant was currently enrolled in the professional
manager course or her study efforts to become proficient in administering the food code.
grievance was denied by Carder on December 12. At the close of business on December 31,
the Grievant was laid off. On or about January 2, 2002, the Grievant had a Step 2 grievance
with Bablitch and Hladky, at which time she provided them with her professional food
certificate and further discussed with them her qualifications for the Sanitarian position. The
was adjourned without resolution and the parties met again late in January, whereupon
informed the Grievant that her grievance was denied. The grievance was subsequently also
by the County Personnel Committee, whereupon the matter proceeded to arbitration.
will be referenced, as necessary, in the discussion section of this award.
POSITIONS OF THE PARTIES
The Union argues that the Grievant was capable and qualified to perform the duties
Sanitarian and that, therefore, the County breached the collective bargaining agreement by
her bump into the position. It was only necessary that she be qualified, not the most
qualified, for the
position. She had been a Sanitarian in the past, continued as a backup after becoming a Lab
Technician and performed her duties satisfactorily throughout. She was qualified to be a
Sanitarian, although she had not obtained the certification and satisfactorily answered
the food code in her November 9 interview. The County asserts that she was not qualified
she did not have a year working with the food code nor an Environmental Health
is a sham and a falsehood.
The argument that the Grievant did not have an Environmental Health certification
On December 17, 2001, she received a certificate as a professional food manager, which
conceded met the criteria in the Sanitarian job description. She should have received credit
when the County was considering her request.
The requirement of one-year working with the food code is a sham because at the
time it was
instituted the code had only been in place for 7 months so that no one, including the
could claim to have worked with the code for a year. After the grievance was filed, the
changed its tack and claimed that the training the Sanitarians received prior to adoption of the
qualified for the year's experience. The Grievant, too, obtained this training on her own, but
County refused to credit it as equivalent because there was no way to know whether it was
or whether the Grievant had achieved the same competency. Nevertheless, Carder admitted
was unable to say for sure whether the Grievant's training was sufficient or not. By failing
consider the Grievant's qualifications and refusing to let her bump into a Sanitarian position,
County violated the collective bargaining agreement and should be required to award the
The County asserts that it did not violate the collective bargaining agreement. At the
Grievant filed her bumping request, she was not capable and qualified to perform the duties
Sanitarian position. The job required a certification in Environmental Health and one-year
with the food code and the Grievant met neither criteria. Further, she had not worked as a
for several years and the record reveals that her work as a backup was insufficient to qualify
a full-time position, as she was never called upon to perform all the responsibilities of a
The Grievant did eventually receive certification as a professional food manager,
involved studying the food code and which qualified her under the Environmental Health
but not until well after she applied to bump. Further, she did not have the
training with respect to the food code that the other Sanitarians had and, so, was not
practiced in it to have been considered to have one year's experience, regardless of her
Because she failed to meet these two prerequisites for the Sanitarian position, the Grievant
eligible to bump into the position when she filed her request in October, 2001. Therefore,
did not violate the collective bargaining agreement by denying her request. The grievance
The Union in Reply
The Grievant was capable and qualified to perform as a Sanitarian at all times
material to the
case. The County's requirement of one-year working with the food code is specious,
because it has
nothing to do with the Grievant's capabilities. No other County requires its Sanitarians to
criterion, yet all must deal with the code, so clearly this requirement, while perhaps
reasonable, is not
necessary. In fact, at the time the Grievant filed her notice, none of the Portage County
met this requirement. The County concedes that it considered the additional training
received by the
Sanitarians to compensate for the lack of a year's experience working with the code, thus the
requirement, by the County's admission is unnecessary.
By Carder's admission, the Grievant also met the Environmental Health certification
requirement by completing the professional food manager course. Thus, she was qualified in
regard before she was laid off. Further, her role in obtaining State certifications in the
Department lab should have qualified her under this requirement. Therefore, there is no
merit to this
The County further asserts that the Grievant did not meet the qualifications "in time."
underscores the fact that the County wanted to lay off the Grievant, rather than the
timed the event in such a way that no matter what she did the Grievant would not have
the position. The County's arguments that she did not have sufficient experience and
training as a
Sanitarian do not hold water. She was minimally qualified and senior to the least senior
so she should have been allowed to bump into the position.
The County in Reply
The County argues that the Grievant's duties as a backup Sanitarian do not support
because, in reality, her responsibilities were very limited. This is reflected in the fact that
she was not
offered the food code training because her supervisor did not think it was necessary given her
work in this area.
The one-year requirement working with the code is a reasonable requirement. The
Sanitarians received credit for the training they received in using the code to met the
The Grievant did not have this training. She obtained the food manager
certification and studied tapes of the seminars only after she had applied to bump and
these do not
compare to the quality or quantity of training received by the Sanitarians. Further, she did
to attend the trainings attended by the Sanitarians, although she was aware of them and
have been interested.
Approximately 50% of a Sanitarian's duties involve working with the food code,
which is an
extensive document. It cannot be mastered in a short period of time. The Union makes an
the fact that Carder testified that he did not know the extent of the Grievant's training on the
code. The fact is that she did not inform him of any such training. Nonetheless, this all
the fact. At the time she applied to bump into a Sanitarian position, the Grievant had neither
training nor the Environmental Health certification, either of which was sufficient grounds to
her request. The grievance should be denied.
The principal question raised in this case is whether the Grievant, according to the
the contract language, was "capable and qualified" to perform the duties of Sanitarian at such
and under such circumstances that the refusal by the County to allow her to bump into the
constitutes a violation of the collective bargaining agreement. At the outset, it is necessary
that the conjunctive use of the terms "capable and qualified" in the contract language
two separate criteria need to be satisfied in order to bump into another position. As used in
fashion, the words "capable" and "qualified" must be construed to mean different things and,
the Grievant must have been both capable of performing the duties of a Sanitarian and
hold the position in order to successfully assert her bumping rights under Article 8, Section
Assuming that at some point the Grievant was capable and qualified, other salient issues then
such as at what point was she capable and qualified and did the County have knowledge of
at a time such that it was under an obligation to permit her to bump. I will address these
questions in turn.
To begin with, it is necessary to distinguish between the terms capable and qualified.
relevant definition of "capable," contained in Webster's New Collegiate Dictionary, is
attributes (as physical or mental power) required for performance or accomplishment." This
subjective standard which connotes personal, demonstrable ability to perform the tasks
fulfill the duties of the position. In other words, in this case is the Grievant able to
perform the tasks of a Sanitarian. "Qualified," according to the same source, means "having
with the specific requirements or precedent conditions (as for an office or employment)."
This is an
objective standard which focuses on whether the Grievant has obtained the requisite training
experience to hold the position. The language of the contract requires that the Grievant have
successfully met both standards in order to bump into the Sanitarian position.
I am satisfied on this record that the Grievant was capable to perform the duties of a
Sanitarian, or at least that there is insufficient evidence to conclude that she was not. The
had originally been hired by the County as a Sanitarian and had held the position for
several years, even after becoming a Lab Technician. Eventually, the Sanitarian duties
to other employees, but she continued to act as a backup Sanitarian for the remainder of her
of employment. There is no evidence that she was ever found to be inadequate in her
of Sanitarian duties. She did testify that occasionally she would receive inquiries in her
position that she was unable to answer and that she would refer these questions to the other
Sanitarians, but the record does not indicate how frequently this occurred, or whether the
Sanitarians occasionally had the same problem. In my view, when the Grievant applied to
the Sanitarian position she represented to the County that she was capable and qualified to do
At that point, it became incumbent upon the County to determine if this was so, because only
if it was
not could it prevent her from making the move. Significantly, no testing was conducted at
November 9 interview to determine her general capabilities as a Sanitarian. She was asked
questions to ascertain her knowledge of the new food code and answered all but one
County had the ability to define the capabilities necessary to do a Sanitarian's job and
process by which the Grievant's capabilities were determined. By the criteria it established,
Grievant appears to have met this requirement.
Whether the Grievant was qualified for the position appears to be another matter.
description for a Sanitarian specifies that an acceptable candidate must have some form of
Environmental Health certification and must have at least one-year of experience working
new food code. It is clear that, at least as of October 16, when she filed her request, and
9, when she had her interview, the Grievant did not meet these criteria. The job description
specifically identify what constitutes an Environmental Health certification and in her
Grievant listed several certifications in various testing procedures in satisfaction of this
In their November 27 memorandum denying the Grievant's request, Hladky and Carder
that the listed certifications were of the laboratory she worked in and were not personal to
that working in a lab that is certified to perform certain tests is not the same as holding a
certification. They also listed a number of different certifications which would qualify, and
no dispute that she did not have such certification prior to November 9.
Likewise, the Grievant did not have the requisite one-year of experience working
food code. The Union points out, however, and with some merit, that this requirement is
suspicious, given that, since the code was only adopted in February, 2001, the incumbent
have a year's experience with the code, either, raising a question of disparate treatment if
criterion was the basis for refusing her request to bump. The County concedes the point, but
that the incumbent was given credit for the extensive additional training he received on the
Grievant did not receive the training and, therefore, was not entitled to the same
grievance itself suggests that there was some wrongdoing on the County's part in not offering
Grievant the opportunity to receive the same training concurrent with the incumbent.
there is no evidence that the Grievant asked for the training at the time and Carder testified
did not feel it necessary, given that she was only the backup for the position. In my view,
does not support a conclusion that the Grievant was deliberately denied the training
in any event, as of November 9 she clearly did not have the same qualifications as the
incumbent. The County exercised discretion in imputing more experience to the
incumbent based on
his additional training, but I do not find that exercise of discretion to have been
Furthermore, during the preceding months the incumbent was working with the food code on
basis, whereas the Grievant, by her own admission, was working with it only sporadically. I
therefore, that as of October 16, when she filed her request to bump, the Grievant was not
for the position of Sanitarian and, further, that she was also not qualified as of November 9,
was interviewed by Hladky and Carder. Thereafter, the water becomes murkier.
After her interview, but before her layoff, the Grievant obtained professional food
certification and arranged on her own to obtain and review the videotapes and written
the food code trainings she had missed, ostensibly eliminating any objection to her
County argues, however, that her independent study on the food code was not an adequate
for the training the Sanitarians received and, further, that her efforts were not timely. I will
these arguments in turn.
As to whether her additional study was an adequate substitute for the training the
received, the best that can be said on this record is that it is unknown. Carder was unwilling
her individual study efforts because he didn't know what materials she had reviewed or the
her review. When asked to assume she had completely reviewed all the material, he still
that studying the seminar tapes and food code itself would not necessary show competence.
Ultimately, however, he conceded that he had not tested the Grievant on her knowledge of
subsequent to her study and so was unaware of whether it was adequate or not. Under these
circumstances, Carder's assumption was unfounded because he did not have a rational basis
comparison nor any objective data to confirm his impression. As will be seen, however, and
indicated below, I consider the question moot.
The County's assertion that the Grievant's additional training and certification were
is, in my view, incorrect, but also misperceives the real issue, which is not timing, but
notice. As I
have indicated, the Grievant did not have the necessary qualifications for the position by the
had her interview. Assuming her food code training was adequate, however, she did have
before she was laid off. For some reason, however, she chose not to disclose this
her layoff. Despite going to the effort to achieve the food professional certification and to
materials on the food code and study them, the Grievant testified that she did not inform her
of her efforts until January, 2002. Even the grievance, which was filed on December 7,
reference to her attempts to obtain the remaining qualification, but merely asserts that the
was arbitrary and motivated by bias. Indeed, her requested remedy, in part, seeks to obtain
additional training given the other Sanitarians and a grace period within which to gain
experience, as if acknowledging that her training to that point had been inadequate. I find
oversight to be of critical importance.
In order to successfully bump into the Sanitarian position, the Grievant needed to be
and qualified for the position, which she was not at the time she submitted her request. She
perceived, however, that she could still succeed if she subsequently obtained the
necessary credentials. Unfortunately, she withheld this information from her
employers until after her
layoff, which has two consequences. First, it deprived the County of the information
alter its original decision prior to her layoff. Second, by disclosing her additional efforts
layoff, it changed the status of her request from a request to bump to a request for recall. In
for the County to have violated the bumping provision, it had to have had knowledge that she
entitled to the position and have refused her request. At no time prior to her layoff was the
apprised of her added credentials. Its knowledge was no greater on December 31 than it had
on November 9, when her qualifications were found to be inadequate. Had she informed her
superiors of her additional training and resubmitted her request prior to December 31, the
would then have had to reconsider its position in light of the new information. As it was,
the County had only the information provided on the Grievant's resume and gleaned from her
November 9 interview, which I have already indicated was insufficient to qualify her for the
Inasmuch as the additional information was in the Grievant's control and she did not disclose
cannot find a violation by the County in not permitting her to bump into a Sanitarian position
to December 31.
The first the County knew of the Grievant's food professional certification or
code studies was in the Step 2 meeting with Julie Hladky and Judy Bablitch in early January,
At that point, she provided them with a copy of her certificate and disclosed the work she
to become conversant with the food code. By then, however, she was already laid off and
window of opportunity for bumping had closed. At that point, the County was no longer
contractual obligation to consider her added qualifications and reconsider her request to
Indeed, had it done so it could have faced an additional grievance from the bumped
was she entitled to a recall at that point. The recall provision, contained in Article 8,
Section 4, only
establishes an employee's right to be called back to work in the event of a vacancy. So far
record indicates, there was no vacancy for which the Grievant was qualified subsequent to
Thus, the County was not obligated to call her back.
For the foregoing reasons, and based upon the record as a whole, I hereby enter the
The County did not violate Article 8, Section 3 of the collective bargaining agreement
it laid off Cheryl Helms and did not permit her to move into the Sanitarian position. The
is, therefore, denied.
Dated in Fond du Lac, Wisconsin, this 16th day of May, 2003.
John R. Emery, Arbitrator