BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY DEPARTMENT OF HUMAN
EMPLOYEES, LOCAL 2228, AFSCME,
Mr. Richard C. Badger, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, 8033 Excelsior Drive, Suite B, P.O. Box 2825, Madison, WI
53717-1903, on behalf of Local 2228.
Mr. John A. Bodnar, Corporation Counsel, Winnebago County,
448 Algoma Blvd., P.O. Box 2808, Oshkosh, WI 54903-2808, on behalf of the County.
Pursuant to the terms of the 2001-03 labor agreement between Winnebago County
and Winnebago County Department of Human Services Employees, Local 2228, AFSCME,
AFL-CIO (Union) the parties jointly selected Sharon A. Gallagher, a member of the
Employment Relations Commission's staff, to hear and resolve a dispute between them
selection of Jason Baer to fill a job opening in the Long-Term Support Division--Supported
Team, over Grievant Barbara Robertson. Hearing was held in the matter on March 20,
Oshkosh, Wisconsin. No stenographic transcript of the proceedings was made. The parties
at the hearing that they would send their initial briefs directly to each other with a copy to
Arbitrator postmarked May 5, 2003, and that they would reserve the right to file reply
Arbitrator received all briefs in the case by May 27, 2003, whereupon the record was closed.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The parties stipulated that the Arbitrator should determine the following issues herein:
Did the County violate the collective bargaining agreement
it failed to award the
Grievant, Barbara Robertson, the position of Service Coordinator/Social Worker in the
Support Division--Supported Living Team in the Human Services department? If so, what is
Through its management, the Employer
retains the sole and exclusive right to manage its
business, including but not limited to the right to direct its work force, to hire, assign, lay
suspend, transfer, promote, discharge or discipline for just cause, to maintain discipline and
of its employees, to determine the extent to which the Employer's operations shall be
size and composition of the work force, the number of offices and locations of such offices,
equipment requirements and location of such equipment and the right to change methods,
systems or processes, or to use new equipment, products, methods or facilities, and to reduce
In no event shall the exercise of the above
rights and responsibilities of the Employer violate the terms
and conditions of this Agreement.
A job vacancy shall be defined as a
position not previously existing in the job classification
plan attached to and made a part of this Agreement or a vacancy in a position in the said job
classification plan due to termination of employment, promotion or transfer, death or
existing personnel, and, in the judgment of the Employer, the need to fill suchjob vacancy continues
to exist. In the event the Employer determines not to fill any job vacancy in the job
plan, the Employer agrees to post a notice of job discontinuance for a period of five (5)
Any suchaforementioned vacancy shall be posted for five (5) working days
on the Union bulletin
boards in the Human Services Department. The Union President shall be provided with a
The job requirements, qualifications and salary range shall be
a part of the posting. Regular
employees who have passed their probationary period and who desire to apply for such
position are to make application in writing through the Department of Human Resources.
The Employer shall determine the
qualifications of the applicants. If, in the opinion of the
Employer, two (2) or more applicants for a single vacancy are in all respects equally
qualified to fill
such vacancy, it shall be filled by the employee among such equally qualified applicants
longest continuous service within the Human Services Department. If, in the opinion of the
Employer, one (1) of such applicants is better qualified to fill such vacancy than any other
it maybe filled by such better qualified applicant. . . .
DISPUTES. If there is any difference of opinion as to the qualifications
of an employee, the Employer or the Union may take the matter up for adjustment through
. . .
It is undisputed that the Grievant, Barbara Robertson, who has been employed by the
as a Social Worker for the past 19 years has had either above average or superior overall
during her County employment. Robertson stated herein that she has been employed in the
child welfare for her entire tenure with the County. Robertson submitted a summary of her
the County (Union Exhibit 1), which read in relevant part as follows:
. . .
July 1993 to present - Child Protective Services -
Winnebago County DHS:
Complete family assessments and develop
case plans of the family's strengths and needs, case
management, contact with collaterals, prepare court reports and represent Department in
court appearances including sworn testimony (28 appearances in 2001 alone), case
evaluations, crisis intervention, referrals to community resources and services,
individual/family/couples counseling, emergency placements, initiate guardianships and attend
hearings, provide teaching, coaching, and role modeling to clients. Issues addressed with
include neglect, physical and sexual abuse, incest, domestic abuse, mental illness, physical
developmental disabilities, and alcoholism.
July 1989 to July 1993 - Delinquency Unit -
Winnebago County DHS:
Completed child and family assessments to
determine comprehensive needs for services,
developed written treatment plans, case management and monitoring, referrals to community
resources and services, contact with collaterals, prepared court reports and represented
in court appearances, crisis intervention, individual, family, and group counseling, and
placements. Issues addressed included incest, sexual abuse, juvenile delinquency, alcohol and
abuse, school truancy, and runaways.
July 30, 1984 to July 1989
Substitute/Foster Care Unit- Winnebago County DHS:
Liaison to foster homes, group homes,
residential treatment centers and corrections facility,
attended staffings, provided individual, group, and family counseling, crisis intervention,
collateral contacts to community resources and services, prepared court reports and
Department in court appearances. Work cooperatively with other agency staff as well as
resources to develop a plan for treatment, which appears most appropriate for individual
their families. Special concentration in the area of alcoholism and chemical dependency.
. . .
Robertson has a B.S. degree in Social Work and Criminal Justice and 23 graduate
credits toward a
Masters degree, 9 of which are in areas related to older adult issues (Long-Term Care,
Concepts and Aging Policy). Robertson also took a 3-credit graduate level class in "Social
Welfare-Developmental Disabilities." Robertson's employment on the County's Child
team involves the following duties, as she stated on her application for the Supported Living
Family assessments, crisis intervention, course reports, case
record maintenance, provide
counseling to children and adults as needed, referrals to outside agencies, teaching and
cooperatively with outside agencies.
Robertson stated herein that in her current position, her duties are generally to confer
to do assessments of family needs and skills of the family and to get referrals from outside
to meet the needs of her clients. Robertson stated that the welfare of the children in the
family is her
primary concern but that a secondary concern is to try to return children to their parental
home if that
is possible after they have been removed due to parental neglect. If return to the parental
home is not
possible, Robertson's job is to try to find foster parents for the children and to assist in the
termination of parental rights if that is required or necessary. Thus, court mandated or court
approved services are the rule in her cases and Robertson frequently testifies in court.
Robertson stated that in her position, from time to time she has worked with
disabled and physically disabled clients but she has never had a position with the County
primary focus was to provide services to developmentally disabled, physically disabled or
disabled adults. Robertson stated herein that she has had at least 15 clients who have been
or developmentally disabled and she stated that some of these cases have remained open for
one and three years. These developmentally/physically disabled children have ranged in age
3 and 17 and there have been three developmentally/physically disabled adults involved in
At the time that Robertson applied for the Supported Living Team position, her wage rate
$23.07 per hour.
The job posting of the disputed position, Service Coordinator/Social Worker in the
Long-Term Support Division--Supported Living Team, reads in relevant part as follows:
. . .
PURPOSE: TO ASSIST INDIVIDUALS WITH A
AND/OR PHYSICAL DISABILITY AGE 23 TO 65 IDENTIFY NEEDS, PLAN,
THE PROVISION OF SUPPORTS SERVICES WITHIN AN INDIVIDUAL'S FUNDING
ACCOUNT, AND MONITOR OUTCOMES.
ORGANIZATION: REPORTS TO THE SUPPORTED LIVING
THE MAJOR DUTIES OF THIS
POSITION REFLECT THE "BEST PRACTICE CORE
VALUES" (SEE ATTACHED) FOR PROVIDING SERVICES AND SUPPORTS. BEST
PRACTICES SHOULD ALWAYS BE USED AS A FILTER FOR PLANNING AND
IMPLEMENTING SERVICES AND SUPPORTS.
l. To assess the needs, strengths, wants, preferences, future goals, and desired
individuals collaboratively with the individual and relevant others.
2. To coordinate and facilitate the development of a plan that is based on a
The focus should reflect the person's specific needs, desires, and outcomes. Progress
meeting outcomes, consumer satisfaction, and cost-efficiencies, are part of the ongoing
of a person's individualized plan.
3. To evaluate and respond to
emergencies and crisis situations. This includes, but is not
limited to the provision of or arrangement for APS such as: emergency protective
guardianships, elder abuse, and abuse to vulnerable adults.
4. To assist persons in accessing community resources and natural supports to
desired outcomes are achieved.
5. To document all case management activities and to complete all paperwork
mandated within the Supported Living Team.
6. To actively participate in meetings and training opportunities that will enhance
practice, including, but not limited to: supervisory, team, and division meetings as well as
7. To provide the individual/family with information, support, and experience
opportunities) needed to make informed decisions and understand the service delivery system,
supports, budgets, funding, costs, and choices.
8. Assist and/or arrange for individuals to have and operationalize individual
accounts as well as personal budgets; inform supervisor of changes in support needs that may
on budgets and/or contracts.
9. Assist communities, its' [sic] citizens and organizations, make their services
accessible and available to individuals supported within the Long Term Support Division.
1. To ensure that
the Long Term Support Division's "Best Practices Core Values" as well
as the Supported Living Team's goals and procedures are implemented and practiced for
regardless of the severity of their developmental and/or physical disability.
2. Participates in division and/or team decision-making process to effect change
of the philosophy, core values, and goals.
3. To ensure that funding source regulations are adhered to and that non-county
utilized before county funding. Ensures that guidelines are adhered to as required by funding
and established programmatic procedures.
4. To mobilize appropriate resources that are effective, efficient, and of value to
of funding and/or services.
5. To ensure compliance with federal, state, county, and department rules,
policies and procedures.
6. To provide accurate and complete assessment/profiles, waiver applications,
and other written information as required and in accordance with state, federal, and
standards and schedules.
7. To meet ongoing training requirements of the Department of Human Services
Winnebago County, Long Term Support Division, and
funding sources. Maintain the knowledge
and skills necessary to assess, plan, and monitor
supports and to keep current with changes in rules, regulations, and community resources.
8. To ensure that each person's legal rights, safeguards and confidentiality are
9. To respond to individuals, families, service providers, and co-workers in a
10. To demonstrate professional conduct and a commitment to seek solutions
problem solving and creativity.
11. To meet or exceed the minimum loggable case management standards,
goals, and team goals.
SKILLS AND ABILITIES:
1. Person must
possess a Bachelor's Degree in health or human services field and two years
of experience in working with people with developmental and/or physical disabilities. The
shall be knowledgeable concerning the service delivery system and the resources available to
individual with a developmental and/or physical disability.
2. Compatibility with, and the commitment to embrace, the service philosophies
Department of Human Services - Long Term Support Division (see Best Practice Core
3. A demonstrated ability to listen to individuals, identify needs, and creatively
4. The ability to adjust and contend with a constant caseload demand, efficiently
caseload, service needs, and daily tasks to ensure priority services are delivered as well as
needed work is completed.
5. The ability to utilize conflict resolution and problem solving techniques.
6. A demonstrated ability to be a project-oriented, self-starting, and
independent judgement and discretion in setting daily priorities.
7. The ability to effectively facilitate a meeting with a variety of persons in an
8. Must be able to meet consumers and guardians at times that are outside the
9. The demonstrated ability to skillfully/creatively plan and organize to achieve
effective and efficient service delivery.
10. The ability to communicate effectively and professionally both verbally and in
11. The ability to use a personal computer with basic typing, competence using
and Word for Windows.
12. General math knowledge to monitor service logs, monthly expense forms,
individualized funding accounts, and authorizations.
13. Demonstrates sensitivity to
economic, rule, and individual differences. 1/
. . .
1/ The parties stipulated that Baer and
Robertson were equally qualified on items 10 through 13 of
"Knowledge, Skills and Abilities," and that these factors were not determinative in deciding
Baer should get the
On September 10, 2002, both the Grievant and employee Jason Baer filed
the County to apply for the position in dispute in this case. Baer described his duties with
in the job he had at the time of application as follows:
Case manage young adults aging out of child welfare. Assist with
transition into adulthood via
support information assistance.
Baer was hired by the County in January, 1999; he held the Independent Living
with the County from July, 2001 through the date of his application (September 10, 2002) for
disputed position. His pay rate at the time of application was $13.95 per hour. From
through the date of application, Baer also performed duties as a Lead Mental Health
the County (at the same hourly rate) which he described in his application as follows:
Schedule outreach services for CSP, DD, Oshkosh Team and
therapist work with individuals
(mental health and DD) in the community, CSP day management duties.
By way of elaboration and explanation, Baer also attached the following description of
his prior work
which was related to the position applied for:
. . .
Schedule for, and work with, individuals from the third floor of
Winnebago County DHS. These
include providing respite to individuals living in group homes in the community, helping
access appointments, doing some individual work on coping skills, delivering and observing
medications, and working with service coordinators in setting up MHT services.
Have done case management work for the
Independent Living Program for the last year working
with young adults aging out of child welfare. Through this position I have worked with
groups [sic] homes, foster parents, social
workers, families of the service recipients, social security, section
8 housing, etc... I have
researched available community resources for service recipients to utilize. I have case
experience on TCM (intake/referral, enrollments, documentation, closing cases, etc...) in
with these young adults.
Worked from 1995 through 2000 (with one
break for internship) for Lutheran Social Services
with people with developmental disabilities living in the community and group homes. Work
helping people access appointments, sitting in on treatment meetings, assisting with/teaching
assisting with accessing community recreational activities.
Worked at Norristown State Hospital in
Pennsylvania with adults with developmental disabilities.
Work included leading various groups (music, recreational, exercise, skills building),
contributed to treatment team meetings. Assisted individuals with accessing special events
dances, picnics, holiday celebrations, etc... Did individual work with some people on
(e.g. moving towards a lesser restrictive environment, coping skills).
Worked with children with developmental
disabilities in grade school (Perry Tippler) and High
School (North High) leading music groups focussed [sic] on different goals including
movement, behavioral. Worked individually with a person with brain injury, in groups with
with developmental disabilities at long term care facilities, and group homes.
Various side projects within my county
position including; work with Amy Hartman and the CSC
program, assistance to and coordination with the Hope and Care Inn, co-facilitating recovery
training at different areas of the state for CSP, volunteering to participate as Day Manager
biweekly basis for the CSP. 2/
. . .
2/ CSP means Community Support Program.
The Community Support Program is like the Long-Term
Support Team but it is for adults who have chronic mental illness.
Baer stated herein that as a Mental Health Technician and Lead Mental Health
the County from January, 1999, through October, 2002, he spent 70-80% of his time
developmentally and physically disabled adults. Baer also explained that
during his tenure with Lutheran Social Services, he worked with developmentally
physically disabled, cognitively delayed, autistic and mentally ill clients who were adults
under the age
of 65 for his entire tenure there. During his six-month internship at Norristown Hospital in
Pennsylvania, Baer stated that he worked with a combination of developmentally disabled and
physically disabled adults, as well as with mentally ill patients. In his positions with
Services and the County, Baer stated that his goal was to respect disabled adults' right to
own decisions and to help them make sound decisions that they are comfortable with based
goals and societal expectations. None of Baer's clients were subject to court orders. During
employment in the past, Baer has provided direct services as well as case management. 3/
3/ Jason Baer has a B.A. in Music Therapy
and a Masters degree in Counseling. Baer has received excellent
evaluations from the time of his hire in January, 1999, through the date of his
Mary Krueger has been the Division Manager of the Long-Term Support Program
approximately February, 2002. Krueger stated herein that approximately four years ago the
community programs were merged together to form a Department of Human Services.
stated that as Division Manager of Long-Term Support, she is in-charge of one of five
the Department of Human Services, which provide service and coordinate care and funding
physically and developmentally disabled individuals (some of whom are elderly as well) who
have cognitive difficulties such as cerebral palsy or epilepsy.
In the Long-Term Support Division, employees do all of the intake work for cases
provide adult protective services for the developmentally disabled and physically disabled
4/ Krueger stated that the philosophy of her Division is that all persons from the ages of 23
have the right to live freely in the community and it is the Long-Term Support Division
job to help developmentally, physically and mentally disabled individuals assess their needs
coordinate services for them so that they can be successful participants in community life.
4/ The other four
divisions in the Department of Human Services are Family Support, Supported Living, Older
Adults and Elderly Services.
Krueger stated that she was part of the interview team for the disputed position,
interviewed both Baer and Robertson. Krueger stated that the interview team's decision was
unanimous that Baer was the best candidate for the position, after the team looked at the
applications (and the attachments thereto) of the two candidates and interviewed both
checked their qualifications. The interview team asked the following questions to both
at interviews conducted on September 18, 2002:
. . .
1. Experience with
physical/dev disabilities [sic]?
2. What is your understanding
of coordination of services and $?
3. How would you get to know
a person and their needs?
4. What do you think a SC/SW
needs to have/be?
5. What is your courtroom
6. What is your experience
7. What are you feelings about
9. What is your feeling about
the importance of team aspect?
9. With [sic] is your comfort
level with change of policies, procedures, etc?
10. (Explain Best
Practices)..how do you advocate when there are discrepancies between what
the client and guardianship want?
11. What do you do with
difficult cases/how do you handle?
12. What is your budgeting
experience with cases?
13. Why do you want to change
Krueger stated that more than 90% of the clients served by the disputed position are
is known as the MA Waiver program, a State program which is covered by State regulations
manual setting forth specific requirements for those who fill case manager positions serving
developmentally and physically disabled clients whose services will be paid either by Medical
Assistance or paid under the MA Waiver program. The case management services portion of
Waivers manual reads in relevant part as follows, concerning allowable services:
. . .
Case management services include responsibility for locating,
managing, coordinating and
monitoring all proposed waiver services, other services and informal community supports
eligible persons and their families. The intent of case management services is to enable
participants to receive a full range of appropriate services in a planned coordinated, efficient
Case management services consist of the
following activities: information and referral, arranging
for provision of services completion of level of care documents, monitoring and review of
eligibles' services, service coordination, crisis intervention, case counseling, case planning,
assessment, diagnosis and referral assistance to participant to locate safe and appropriate
follow-along to ensure quality of care and case reviews which focus on client progress in
goals and objectives established through the case plan. Services that are typical for this
be an integral, but subordinate, part of other programs when the client is receiving services
one other program.
. . .
2. Case management is a required service. The agency
responsible for providing or purchasing
waiver services will be responsible for ensuring the provision of case management for every
served by the waiver.
3. The waiver agency must ensure that
case management is provided by a qualified case
. . .
HSS 61.32 Follow-along services.
Follow-along services establish and maintain a relationship
with a person with a developmental disability and the family for the purpose of assuring that
of a person with a developmental disability are identified and met. Follow-along services
establish a catchment area system of case management which shall coordinate services to a
with a developmental disability whether that person receives services from one or many
(1) REQUIRED PERSONNEL. There
shall be a case manager who has the skills and
knowledge that would be typically acquired through a course of study leading to a degree in
services related field, and at least 2 years
experience in developmental disabilities. This person shall be
knowledgeable concerning the
service delivery system and the resources available to the individual with a developmental
The case manager shall be responsible to the director of the board, or if contracted, to the
of the contracted agency.
. . .
Krueger stated that the State of Wisconsin requires that any case manager filling the
position must have a Bachelor's degree in a Human Services area plus at least two years of
developmentally disabled clients. Indeed, the job description lists these requirements
Krueger stated that Robertson's work with the developmentally disabled, reportedly 15 clients
such disabilities, was merely incidental. Krueger stated that this fact was clear during the
of Robertson. As Robertson's social work did not meet the State requirements of two years
experience with developmentally disabled clients in the age 23 to 65 years of age category,
the overwhelming favorite and unanimous choice of the interview committee for the position
Baer had worked for more than two years with developmentally and physically disabled
In addition, Krueger stated that even if the State of Wisconsin did not have the MA
program, the Department of Human Services at the County would still require two years'
with developmentally and physically disabled clients for the disputed position because it is
to have experience and knowledge of the targeted population (the clients with whom the
to work) in order to understand and assist these clients with their goals. Krueger also stated
Baer had more extensive knowledge of the service delivery system for the developmentally
physically disabled target group than did Robertson, who has not dealt with this group or
delivery model on a regular basis. Krueger stated that Robertson has worked under a "court
directed" model in the Child Protection Services Division, which differs from the "best
values," a self-directed model, required for the disputed position. Krueger stated that Baer
consistently worked under a self-directed model both at Lutheran Social Services and in his
Krueger stated that courtroom experience is a very small percentage of the work of
disputed position. Krueger stated that she distinguished between the two applicants based on
and second paragraphs of the Knowledge, Skills and Abilities section of the job
regarding paragraphs 3 through 13 of that section, there was no real difference between the
qualifications of Baer and Robertson for the job. Krueger admitted that although she was
about Robertson's lack of contact with the targeted disabled group with which the position
work, she (Krueger) did not contact Robertson's supervisor to ask her what Robertson's
was in working with developmentally and physically disabled people. Krueger stated it is the
of time with the targeted group and the approach (the self-directed model) which is used with
developmentally and physically disabled
people that was most important to Krueger and the interview team in deciding that Baer
qualified than Robertson for the position. Krueger stated that the successful candidate for the
would have to meet the MA Waiver requirements immediately before stepping into the
that the State's two-year experience requirement includes case management and direct care
the target population.
POSITIONS OF THE PARTIES 5/
The Union argued that the Grievant met all of the minimum qualifications for the
position, that she has been a professional employee at the County for the past 20 years and
position in dispute is extremely similar to her current position at the County. In addition, the
listed Robertson's experience with the target population of the position and stated that she
than 2 years' experience with that population. The Union's brief described Robertson's
. . .
Ms. Robertson testified that she works primarily with children in
her current position. However,
as she testified at hearing, over the course of twenty plus years with the County, she has had
individuals with developmental and/or physical disabilities [sic] have been a part of her case
management. She testified that [sic] was responsible for an individual with Down's
a minor and as an adult) from 1979 to 1980; from 1991 to 1993 she worked with a child
schlerosis [sic]; from 1993 to 1994 she worked with a child with multiple birth defects; from
to 1996 she was involved with an individual with mental retardation/cognitively delayed;
to 1998 she handled another case involving an individual with mental retardation/cognitively
(as a minor and as a young adult); from 1997 to 1998 she was involved with an adult with
injuries from a motorcycle accident; from 1997 to 1998 she case-managed another child with
retardation/cognitively delayed; from 1996 to 1999 she worked with an autistic child who
mentally retarded/cognitively delayed; more recently she has worked with individuals
children) who suffered from brain injuries and from multiple birth defects. In fact, since
1993 she has
had one or more open cases concerning individuals with disabilities that would be considered
the targeted group for the position in dispute.
. . .
Thus, the Union contended that if the Arbitrator looks at Robertson's graduate course
her 20 years' professional experience, the Arbitrator will conclude that the position in dispute
have been given to Robertson.
5/ The parties submitted
as Joint Exhibit #3 prior cases decided by WERC Arbitrators, as
AFSCME Local 2228
and Winnebago County, Case 286, No. 55215, MA-9931 (Knudson, 1/98); Winnebago
County (Department of Social Services), Case 188, No. 44449, MA-6305 (Houlihan, 12/91);
County (Social Services), Case 318, No. 58021, MA-10815 (Levitan,
Indeed, the Union argued that Robertson was better qualified for the disputed position
Jason Baer. In this regard, the Union noted that Robertson has proven experience in the
in handling a full caseload and in identifying and addressing the needs of clients. In contrast,
has had mostly direct care experience with the targeted group, not case management work
employed by the County. In addition, Baer's prior work experience did not give him case
management experience either. The Union urged that the job application process at the
should not be a "popularity contest" in which Baer is favored over the Grievant.
Furthermore, the Union argued that prior arbitration awards submitted by the parties,
particularly the Lucareli case, shows that Robertson should have received the position she
for. On this point, the Union noted that in Lucareli, the Arbitrator made clear that
work for the County should not count toward the experience requirements of a professional
Therefore, the Union contended that the County's actions in selecting Baer for the disputed
were arbitrary and capricious because the County chose a less qualified, less senior employee
had only paraprofessional experience for this professional position. In these circumstances,
argued that the Robertson should be given the position of Supported Living Team Service
Coordinator/Social Worker and that she should be made whole.
The County argued that Articles 1 and 11 of the labor agreement demonstrate that it
right to determine the qualifications of applicants and that seniority only comes into play
applicants are "in all respects" equally qualified. In addition, prior arbitration awards show
County has broad discretion to determine qualifications. These awards require a narrow
this case, whether the County acted arbitrarily or capriciously in determining that the
not qualified for the position.
In this case, the County urged that Baer has had substantial direct experience over the
eight years working with developmentally/physically disabled individuals. At best,
experience with the target population has been peripheral, minimal or incidental to her Child
Protective Services position. Therefore, the County urged that it did not act arbitrarily or
capriciously or in bad faith in determining that Baer was the most qualified individual for the
The County also noted that the State of Wisconsin requires the County to have certain
qualifications for the position in dispute before the County can receive Medical Assistance
reimburse it for services rendered to the developmentally disabled population. Therefore, the
job requirement that successful applicants have two years' experience working with
developmentally/physically disabled individuals is neither arbitrary nor capricious. As the
did not have the two years' experience with the target population required for the position
Baer had in excess of two years' experience with that population, the County urged that the
be denied and dismissed in its entirety.
The Union repeated many of the arguments it made in its initial brief in its reply
addition, the Union noted that County interviewers for the disputed position never bothered
investigate the amount of much time the Grievant had spent with the developmentally or
disabled population and that therefore the County's actions toward the Grievant were
capricious. In addition, the Union noted that the excerpt from the Medical Assistant Waivers
submitted by the County (County Exhibit 1) refers to case management, not to direct care, in
to the experience requirement for the position involved in this case.
The Union urged that an unbiased third party outside the County should have
whether the Grievant was qualified for the position. On this point, the Union noted that
Chair Kreuger failed to look at the Grievant's case files, to talk to her supervisor or to
what, if any, contact the Grievant had had with the target population. Therefore, the Union
how Kreuger could have fairly found that the Grievant was unqualified for the position. In
circumstances, the Union urged that the County's reliance on Kreuger's analysis showed that
County had been arbitrary and had not acted in good faith.
Finally, the Union urged that Jason Baer admitted that he had a social relationship
long-term support team members and this should require a conclusion that Baer was the
candidate" which would also support an allegation that the County acted arbitrarily and
in selecting Baer for the position. Therefore, the Union urged the Arbitrator to sustain the
make Robertson whole and place her in the disputed position.
In reply, the County urged that the Grievant did not have two years of consistent
developmentally and/or physically disabled individuals and did not have the knowledge of the
delivery system required for the position. The County noted that Baer had more than two
experience with the target population and was knowledgeable regarding the service delivery
The County urged that Baer and Robertson were not equally qualified and Robertson's
never came into play under Article 11 of the labor agreement. The County argued that a
person could have found Baer more qualified, arriving at the same conclusion that the
based on the facts the County had before it at the time of its decision. Therefore, the
in selecting Baer for the position was neither arbitrary nor capricious and the Arbitrator
substitute her judgment for the County's.
The County also argued that hiring the Grievant for the disputed position when she
have the qualifications for the position, could have seriously jeopardized the County's
programmatic relationship with the State of Wisconsin under the Medical Assistance
Therefore, whether or not the State of Wisconsin had actually set a standard that would have
the Grievant from the position, it was neither arbitrary, capricious nor discriminatory for the
to conclude that the State had such a standard according to the MA Waivers Manual and to
Grievant the position based on State requirements.
Article 1 of the labor agreement provides that the County has the right to hire
Article 11 states that the County "shall determine the qualifications of the applicants" and
when two or more applicants for a single vacancy are "in the opinion of the Employer" "in
equally qualified" to fill the vacancy does departmental seniority become the deciding factor
as to who
should receive the open position. Article 11 also states that if "in the opinion of the
applicant "is better qualified . . . than any other applicant" the County may fill the position
better qualified applicant. This language grants the County broad discretion to judge and
the qualifications of applicants.
The parties submitted several prior arbitration awards between them that they argued
on point for this case. I have reviewed these awards, two of which (Knudson and Houlihan
concerned the application of the same Article 11 language that is before me. The third
(Levitan award) concerned Article 7, Bumping Rights. It is significant that all
indicated in their awards that the County had retained broad discretion to determine and
qualifications of applicants for positions.
In regard to the Knudson award, I note that that case involved only one unit
who applied for an open Home Consultant position. The County selected an outside
being more qualified than Lehl. The arbitrator found that because Lehl had only a high
diploma, had not taken any post-secondary courses for credit but had non-credit
courses in parenting and personal finances and had raised five children, she was not
qualified for the
position of Home Consultant. The outside applicant had a BA degree in Vocational Home
Economics as well as teaching experience in the subject area at the elementary and high
and she had worked as a case worker, in a County Family and Children Department in
Although the position description for the Home Consultant position did not require a college
Arbitrator Knudson found that that position description clearly required some post-secondary
education. The arbitrator also found that the County's requirements of some post-secondary
education for the position was neither unreasonable, arbitrary nor capricious.
Arbitrator Houlihan in the Lucareli grievance found that Grievant Lucareli did not
social work degree required for the open position nor did she have one-year of experience
County required in order to be considered minimally qualified for the open Social Worker
Houlihan held that the County's educational and experience requirements were not irrational
unreasonable and that Lucareli had been advised of these requirements when she previously
for a Social Worker position in 1983. Houlihan noted that in 1983, Lucareli failed to meet
educational and experience requirements or to object to their application to herself.
Arbitrator Levitan in the Van Groll Palma grievance had a different issue before him
involved Article 7, Bumping Rights. However, Arbitrator Levitan found that
Articles 7 and 11
contained similar language regarding the broad extent of the County's discretion to determine
judge qualifications of applicants (as found by arbitrators Houlihan and Knudson) which also
to those who wished to bump. Arbitrator Levitan then applied the same arbitrary and
standard to the case before him as had Arbitrators Houlihan and Knudson in their cases under
Given the above analysis, I see no reason to depart from the consistent standard
these prior arbitrators. I note that the language of Article 11 has not changed since these
The job posting for the disputed position states that the successful applicant must
developmentally and/or physically disabled individuals age 23 to 65 and have two years
working with this population, and that the major duties of the position include being
of and able to use the "best-core values service delivery system." There is no issue in this
both applicants meet the educational requirements for the position -- at least a BA degree in a
or Human Services field. The record shows that Robertson has earned a college degree in
Work and has 23 graduate level credits toward a Masters degree, 9 of which were relevant to
open position. The record also shows that Baer has BA degree in Music Therapy and a
Thus, the remaining issue for determination in this case is whether the County's
Robertson was less qualified than Baer was arbitrary, capricious or arrived at in bad faith.
its analysis of the applicants' paperwork and their interview, the County
interview team unanimously decided that Robertson did not possess two years'
the developmentally and/or physically disabled population ages 23 to 65. The record
supports such a conclusion. Counting every case to which she testified, Robertson did not
years' experience with developmentally and/or physically disabled adults. Indeed, virtually
Robertson's experience with the target population has been with children under 18. In
Robertson admitted herein that she was unfamiliar with and had not used the delivery service
"best-core values," used on the Supported Living Team.
The County pointed out that the State of Wisconsin's MA Waivers Manual requires
personnel administering the MA Waivers must be ". . . a case manager who has the skills
knowledge . . . typically acquired through a course of study leading to a degree in a Human
field and at least two years experience in developmental disabilities. This person shall be
knowledgeable concerning the service delivery system and resources available . . ." to the
developmentally disabled population. Although it is clear that Robertson has extensive
as a case manager under the court directed model, she has had no experience with the service
system required for the developmentally disabled population, and she has had very little need
access resources available to the developmentally disabled population. 6/ Thus, I cannot
the County's decision that Robertson lacked the required experience with the target
well as the knowledge with service delivery system and resources available to the population
arbitrary or capricious. In addition, the record herein also supported the County's work
and knowledge requirements for the position.
6/ I note that
Robertson's experience in the courtroom is not something that is required or desirable for the
Supported Living position.
In addition, I note that Baer had extensive experience with the targeted population not
during his employment with the County but also during his prior employment with other
and during his internship. Thus, Baer's experience spanned over the past 8 years working
developmentally and physically disabled individuals almost exclusively while Robertson's
over the past 20 years with the County has been exclusively.
The fact that the County failed to check with Robertson's supervisors, to look over
files, to determine exactly how much time Robertson spent with the target population cannot
the basis for a ruling that the County was thereby arbitrary or capricious vis a
vis Robertson. In this
regard, I note that the interview team was fully aware of the operation of the Child
Services division and of Robertson's work therewith. Furthermore, the interview team asked
same 13 questions to both applicants, designed to elicit their prior experience with the
developmentally disabled as well as their understanding of how services are delivered and
on the Supported Living Team. Division Manager
Krueger stated herein her impressions, as a member of the interview team, of the two
clearly stating that after analyzing the applications and the results of the interviews, the
team unanimously concluded that Baer was more qualified for the position than Robertson.
evidence supports a conclusion that the County acted in a rational and reasonable manner in
determining that the Jason Baer was the better qualified applicant for the open position.
The Union argued that Baer was the "favorite candidate" of the County. There was
evidence to support this claim placed in the record of this case. In addition, the Union urged
that an unbiased outside third party should have determined whether Grievant Robertson, was
qualified for the position. I note in this regard that there is absolutely no basis in the
contract for such
an approach. Therefore, the County would not have been required contractually to employ
unbiased third party to determine qualifications for the open position.
Article 11 is clear. The only time seniority becomes a tie-breaking factor is when
candidates for a position are "in all respects equally qualified" in the opinion of the County.
County has found that Jason Baer was more qualified for the specific open position involved
My conclusions herein do not mean that Ms. Robertson is not an outstanding Social
with a fine educational background and in-depth experience in Child Protective Services.
they mean that in the County's opinion, which the County is undeniably entitled to based on
language of Article 11, Robertson did not have the work experience with the target
did she have the knowledge concerning the service delivery system and available resources
target population prior to her hire, as required by the County's position description. In the
circumstances of this case, therefore, I issue the following
The County did not violate the collective bargaining agreement when it failed to
Grievant, Barbara Robertson, the position of Service Coordinator/Social Worker in the
Support Division -- Supported Living Team in the Human Services Department. The
therefore denied and dismissed in its entirety.
Dated in Oshkosh, Wisconsin, this 25th day of June, 2003.
Sharon A. Gallagher, Arbitrator