BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN COUNTY COURTHOUSE EMPLOYEES LOCAL
WISCONSIN COUNCIL 40, AFSCME,
Mr. Thomas Larsen, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 1734 Arrowhead Drive, Beloit, Wisconsin 53511, appearing on
behalf of the Union.
Mr. William E. Morgan, Corporation Counsel, Green County,
1016 16th Avenue, Monroe, Wisconsin 53566, appearing on behalf of the County.
Pursuant to a request by Green County Courthouse Employees, Local 3813,
Council 40, AFSCME, AFL-CIO, herein "Union," and the subsequent concurrence by Green
herein "County" or "Employer", the undersigned was appointed arbitrator by the Wisconsin
Employment Relations Commission on January 22, 2003, pursuant to the procedure
contained in the
grievance-arbitration provisions of the parties' collective bargaining agreement, to hear and
a dispute as specified below. A hearing was conducted by the undersigned on March 25,
Monroe, Wisconsin. The hearing was not transcribed. The parties completed their briefing
on May 14, 2003.
After considering the entire record, I issue the following decision and Award.
The parties were unable to stipulate to the issues.
The Union frames the issues as follows:
1. Did the Employer violate the collective bargaining
agreement by downgrading
the Legal Secretary position from Grade 11 to 10?
2. If so, what is the appropriate remedy?
The County frames the issue in the following manner:
1. Did the Employer act reasonably and in
conformance with Article 3 when it created
the grade and job description for the Legal Secretary/Victim Specialist position?
Having reviewed the entire record, the Arbitrator frames the issues as follows:
1. Did the Employer violate the collective
bargaining agreement when it created the
grade for the Legal Secretary/Victim Specialist position?
2. If so, what is the
By letter dated August 23, 2002, District Attorney Gary L. Luhman ("Luhman")
that the Personnel and Labor Relations Committee reorganize the District Attorney's office
the position of Crime Victim Witness Coordinator/ Secretary (Grade 10) and the position of
Executive Legal Secretary (Grade 11) be eliminated and that a position of a Victim Services
Coordinator/Office Manager (Grade 13) and a Legal Secretary/Victim Specialist (Grade 11)
The Personnel and Labor Relations Committee at its meeting of August 28, 2002,
Luhman's recommendations except that they downgraded Victim Services Coordinator/Office
Manager to a Grade 12 and the Legal Secretary/Victim Specialist to a Grade 10.
The new positions were posted on September 12, 2002 based on the actions of the
and Labor Relations Committee. The Union filed a grievance on September 19, 2002
that the Legal Secretary/Victim Specialist position "should be returned to the grade 11 and
employee in the position be made whole."
The grievance was heard and denied by the Personnel and Labor Relations
September 25, 2002. By letter dated September 27, 2002, the Committee informed the
Union of its
decision to deny the grievance. The basis for the denial was that the Legal Secretary/Victim
Specialist position was graded appropriately (Grade 10) "given the reduction in supervisory
responsibilities." Further, compared "to other union and non-union positions that are
the same, such as the Zoning secretary and the non-union legal secretary position, this
appropriately graded." The Committee felt that the position did not warrant a higher Grade
The matter proceeded to arbitration as noted above where the parties stipulated that
no procedural issues and that the instant dispute is properly before the arbitrator for a
decision on the
merits pursuant to the terms of the parties' collective bargaining agreement.
The Employer argues that it acted reasonably and in conformance with Article 3 in
and establishing a grade for the position entitled Legal Secretary/Victim Specialist position.
Employer correctly points out that Section 3.01 specifically states it has the
exclusive right to direct
its employees, to plan and direct and control its operations, and to determine the amount and
of work to be done, and by whom it is to be performed. (Emphasis in the Original). It is
that the Employer has repeatedly exercised its innate rights of management in conformance
section by eliminating and creating positions as it has done in the instant case. The Union is
challenging these rights. However, as pointed out by the Employer, the Union is challenging
"appropriateness of the grade level."
The Employer admits that its management rights clause (Article 3) states "generally"
County retains "all rights of management which it had prior to the Agreement." Section
"Legal Rights" expressly provides that the "County and the Union have all the rights which
at law except those expressly bargained away in this Agreement." In addition, Section 1.01
Employer recognition of the Union "on all matters relating to wages, hours and conditions of
employment" for all employees in the instant bargaining unit. Pursuant to these obligations,
parties bargained pay Grade 11 for the position of Executive Secretary (also referred to as
Secretary") in Appendix "B" of the collective bargaining agreement. The record is clear that
primary responsibility of the new position of Legal Secretary/Victim Specialist is Legal
duties. In fact, both Union witness Susan Dahl and Employer witness Luhman testified that
the new position of Legal Secretary/Victim Specialist's duties are Legal Secretary duties.
This is a
substantial portion of the job's duties. According to Appendix "B" of the agreement, said
should, therefore, be assigned to pay Grade 11.
This is particularly true where, as here, the collective bargaining agreement expressly
that a job posting is to include the wage scale. Article 7, Section 7.04 specifically states: "If
employee bids into a) a higher paid job, b) a lower paid job, or c)
a job paying the same, said
employee shall go back one (1) longevity pay step in the new classification during the trial
(Emphasis added). In fact, the posting for the disputed position designated an incorrect wage
of 10. (Joint Exhibit No. 19). Because the posting designated an incorrect wage scale, it did
meet the requirements of Article 7 and Appendix "B" of the agreement. Oneida County
(Courthouse Employees), Case 78, No. 44689, MA-6385 (Burns, 6/91).
The Employer argues contrary to the above that it took a position which had been
graded as a Grade 11, removed certain duties and responsibilities to make it equivalent to
secretarial positions in general, and other legal secretarial positions in particular, within the
and graded it accordingly. The Employer adds: "To argue as the Union does that it needs to
graded at a step higher simply because it previously was, is simply without merit."
First, the Union does not argue that the Legal Secretary/Victim Specialist position
be graded at Grade 11 simply because it previously was. The Union argues that the person
this position continues to perform many of the same functions as were previously performed
Legal Secretary who was paid at Grade 11. As noted above, the Union is correct on this
Second, the Employer claims that its removal of certain duties and responsibilities
Legal Secretary/Victim Specialist position justifies a downgrade to Grade 10. The Employer
out that both of the aforesaid witnesses "agreed that the position does not entail any
overall office management." However, there is no mention of any supervisory duties in the
Secretary job description. (Joint Exhibit No. 6). Luhman testified that the Legal Secretary
supervised another Legal Secretary position but there is no evidence that this amounted to
more than a de minimis amount of her job duties. In fact, Luhman testified that one of the
for reorganizing his office was that he had "three people with the same responsibilities and
at the same pay range." He added: "who was in charge got to be a problem." In practice,
Legal Secretary position performed no more or less supervisory and management duties than
other employees in the District Attorney's office.
The Employer also argues that because the Legal Secretary/Victim Specialist was to
the direction of the Victim Services Coordinator/Office Manager," (Joint Exhibit
No. 4, p. 3),
Luhman recommended a two-gap difference between the positions. (Supra,
p. 4). However, as
pointed out by the Employer, Luhman proposed a Grade 13 and Grade 11 spread between the
positions, not the Grade 12 and Grade 10 spread ultimately adopted by
the Personnel Committee. Grade 11 was the same Grade as the Executive Secretary
appropriate because under the reorganization the Legal Secretary/Victim Specialist would be
performing primarily Legal Secretary duties. If the Employer had assigned a Grade 13 to the
Services Coordinator/Office Manager position as requested by Luhman, there would still be a
two-gap difference between the positions.
In his letter asking to reorganize his office and reclassify the positions in question,
In making this proposal to reclassify these positions, the District
Attorney's Office looked both
to comparable positions within Green County as well as comparable positions within
District Attorney's Office in smaller rural counties in Southern Wisconsin. Our initial
(as noted below) suggest that the present classifications are below those in comparable
other southern Wisconsin counties. The proposed reclassifications are still comparable to and
slightly below those of similarly comparable positions in Green County. (Id).
A pay Grade 11 for the Legal Secretary/Victim Specialist is
appropriate based on those comparisons.
(Supra, pp. 4-5).
The Employer argues that a Grade 12 and Grade 10 spread is the same Grade spread
in the offices of Clerk of Court, Register of Deed and Treasurer. That may be. However,
here is the appropriate Grade for the Legal Secretary/Victim Specialist not the Grade spread
particular office. For the reasons discussed above, the Arbitrator finds that it is Grade 11.
In reaching this conclusion, the Arbitrator rejects the Employer's argument that
new position of Legal Secretary/Victim Specialist performs routine office tasks she is
at Grade 10. The Victim Services Coordinator/Office Manager also performs "all routine
administrative tasks necessary for effective functioning of the District Attorney's Office."
Exhibit No. 9, p. 1). Said position is at Grade 12.
The Employer also argues that Union witness Dahl testified that the level of
completing the work of Legal Secretary/Victim Specialist was like that of the Deputy Clerk
which was also graded at Grade 10. However, a comparison of the two job descriptions
that the Legal Secretary/Victim Specialist has higher level more complex duties. (Joint
7 and 11). For example, under "Essential duties and responsibilities" the Program Assistant
Clerk of Court office does primarily routine office tasks like updates office files and cases,
typewriters and other office equipment, performs receptionist duties, calculates and collects
drafts correspondence and processes
documents and data. (Joint Exhibit No. 11, p. 1). In contrast, while the Legal
Specialist performs some routine secretarial tasks the person occupying that position also
police investigative reports and prepares criminal complaints and summons as well as other
documents including court notices. (Joint Exhibit No. 7, p. 1). The Legal Secretary/Victim
also performs "self-directed, program related tasks" and exercises
under the direction of the Victim Services Coordinator/Law Office Manager." (Emphasis
In comparison, the Deputy Clerk of Court position simply "requires
independence in implementing
personal and procedural control over the specific program." (Emphasis added).
In addition, Dahl did not testify that the level of responsibility was the same between
aforesaid positions. She testified that the level of responsibility for the Legal
Specialist position was in many ways "more complex" than testified to by Luhman. She also
as noted above, that 75% of the Legal Secretary/Victim Specialist duties were Legal
previously at Grade 11. For these reasons, the Arbitrator rejects this argument of the
The Employer further argues that there are two other comparables to which the
position is closely akin. First, the Employer argues that the level of secretarial duties and
responsibilities between the Zoning Secretary (Grade 10) and the Legal Secretary/Victim
position are substantially the same. However, contrary to the assertion of the Employer, a
the job descriptions for the two positions does not support such a conclusion. The job
for the Zoning Secretary makes no reference to independent decision making
authority unlike the
Legal Secretary/Victim Specialist job description noted above. (Joint Exhibit No. 10). In
the Zoning Secretary job description includes mostly routine secretarial and clerical duties
word processing, data processing, answering the phone, scheduling appointments, and file
management. (Id). The Legal Secretary/Victim Specialist position has higher
level duties and
responsibilities as noted above.
The Employer believes that "an even closer comparable is to that of the non-union
Confidential Legal Secretary position shared between the Corporation Counsel's office and
District Attorney's office." The Employer adds: "Not only are these both legal secretarial
but they are in the same office. As can be seen on Joint Exhibit 5, the pay grades for the
positions are now nearly identical." The Employer concludes that not only is the grading of
Secretary/Victim Specialist position internally appropriate, but it is also consistent with the
market comparables used by the salary study conducted by an outside vendor hired by the
First, the salary study would be relevant if it included the Union-represented positions
instant bargaining unit as well. It did not. Second, a comparison between the two job
reveals that the Legal Secretary/Victim Specialist position is appropriately
classified at a higher level. Not only does the Confidential Legal Secretary perform
secretarial and clerical duties, unlike the Legal Secretary/Victim Specialist, these duties are
performed in a "self-directed" or "independent decision-making" manner like the Legal
Secretary/Victim Specialist. (Joint Exhibit No. 15). Therefore, the Arbitrator rejects this
of the Employer.
Finally, the Employer argues that "grade inflation without the justification of
responsibilities or training/education is not appropriate." First, this is not grade inflation.
for the Legal Secretary/Victim Specialist position is the same Grade assigned to the former
(Legal) Secretary position. The duties and responsibilities for the two jobs are essentially the
Second, contrary to the Employer's position, the education/training required for the new
Secretary/Victim Specialist position is actually higher than that required under the old
Secretary position. The Executive Legal Secretary position only required for training and
"graduation from high school supplemented by business and vocational school courses in
sciences . . . office management; or any combination of training and experience which
required knowledge, skills and abilities." (Joint Exhibit No. 6). The Legal Secretary/Victim
Specialist position, on the other hand, requires an "Associate's degree (A.A.) or equivalent
two-year college or technical school; or six months to one year related experience." (Joint
Nos. 7 and 19).
Based on all of the above, the Arbitrator finds that the answer to the issue as framed
undersigned is YES, the Employer violated the collective bargaining agreement when it
grade for the Legal Secretary/Victim Specialist position. A question remains as to the
The new position of Legal Secretary/Victim Specialist was first posted on
2002. (Joint Exhibit No. 19). The grievance challenging the Grade for this position was
thereafter. As a remedy, the grievance requested that said position "be returned to the grade
the employee in the position be made whole." (Joint Exhibit No. 17). The Arbitrator finds
remedy sought by the Union is appropriate under the circumstances.
In light of all of the foregoing, it is my
The instant grievance is hereby sustained. The Employer is ordered to return the
Secretary/Victim Specialist position to Grade 11 and make the person holding this position
all lost wages and benefits that she incurred as a result of the Employer's action.
Dated in Madison, Wisconsin, this 19th day of May, 2003.
Dennis P. McGilligan, Arbitrator