BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
SHEBOYGAN COUNTY SUPPORTIVE
EMPLOYEES, LOCAL 110, AFSCME,
(Carol Ruge Grievance)
Ms. Helen Isferding, Staff Representative, Wisconsin Council
AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Michael Collard, Human Resources Director, Sheboygan
County, appearing on behalf of the County.
The above-captioned parties, hereinafter the Union and County respectively, were
a collective bargaining agreement which provided for final and binding arbitration of
Pursuant to a request for arbitration, the Wisconsin Employment Relations Commission
the undersigned to decide a grievance. A hearing, which was not transcribed, was held on
2003 in Sheboygan, Wisconsin. Afterwards, the parties filed briefs and reply briefs,
record was closed on June 9, 2003. Based on the entire record, the undersigned issues the
The parties were unable to agree on the issue(s) to be decided in this case. The
the issue as follows:
Did the Employer violate the contract when it failed to recognize
Carol Ruge as a permanent
employee? If so, what is the appropriate remedy?
The County frames the issue as follows:
Did Sheboygan County violate the collective bargaining agreement
when it did not give Carol
Ruge the newly-created regular position of Land Description Technician I?
As the County sees it, the following three issues are subsumed into their wording of
1. Was Carol Ruge a regular employee, and thus a
member of the bargaining unit, prior to
2. If so, should the County
have awarded her the Land Description Technician I position even
though she did not submit a response to the posting for that position?
3. If so, was this grievance
timely filed under the contract provision that requires grievances in
discharge cases to be filed within five working days?
Since the parties were unable to agree on the issue(s) to be decided, the undersigned
framed them. Based on a review of the record, the opening statements at hearings and the
undersigned has framed the issues as follows:
1. Was the grievance timely filed?
2. During the course of her
employment with the County, was Carol Ruge transformed from a
temporary employee to a regular employee?
3. Did the County violate the
collective bargaining agreement when it did not award Carol Ruge
the regular position of Land Description Technician I in February, 2000? If so, what is the
The parties' 2000-2002 collective bargaining agreement contained the following
The Employer recognizes the Union as the exclusive
agent for all regular full-time
and part-time personnel employed by Sheboygan County in the Court House, Sheriff's
and in auxiliary departments and buildings (but specifically excluding therefrom all elected
officials, supervisors, professional employees of the Health and Human Services Department,
sworn law enforcement officers of the Sheriff's Department with powers of arrest,
employees of the Sheriff's Department, all nurses, and all confidential employees, with
negotiations with the Employer on questions of wages, hours and conditions of employment).
. . .
Unless otherwise herein provided, the Management of the
and the direction of the
working forces, including the right to hire, promote, transfer, demote or suspend, or
discharge for proper cause, and the right to relieve employees from duty because of lack of
other legitimate reason, is vested exclusively in the Employer.
By way of further enumeration and not as
a limitation because of such enumeration, the
Employer shall have the explicit right to determine the specific hours of employment and the
of the work week and to make such changes in the various details of the employment in the
employees as it, from time to time, deems necessary for the effective and efficient operation
. . .
The work week shall consist of five (5) consecutive work
Monday through Friday in
a pre-established work schedule. The work day shall be seven and one-half (7-1/2) hours per
except for the Maintenance Worker I, Maintenance Worker II, Electrician, Soil Conservation
Technician, Conservation Specialist I, Conservation Specialist II, CAD/GIS Specialist,
Analyst, Programmer Analyst, Programmer II, Programmer I, Control Clerk II, Control
Computer Operator II, Computer Operator I, Printers Assistant, Code Administrator, and
of the Child Support Office and Clerk of Courts Department, whose work day shall be eight
. . .
WAGES, PAY PLAN AND SHIFT
. . .
II. PAY PLAN
A. REGULATIONS OF THE
. . .
Employees: It is understood and agreed that temporary, seasonal, casual,
part-time or extra help of any kind shall not be used to reduce, replace or displace regular
. . .
. . .
The following definitions shall apply:
a. A regular full-time or regular part-time employee is
hereby defined as a person hired
to fill a regular position.
b. A temporary employee is one hired
for a specified period of time and who will be
separated from the payroll at the end of such period.
. . .
Sheboygan County shall, during the
life of the herein contract, for the employees covered by
the same, recognize seniority as herein provided.
Seniority shall be
accumulated on a month-to-month basis or major portions
thereof for continuous months of service. Absence from work because of illness,
layoff, suspensions for less then thirty (30) days or authorized leave shall not interrupt
the accumulation of seniority.
2. Part-time Employees
Seniority shall be accumulated on a prorated
B. Vacancy/Job Posting
1. Whenever an approved vacancy
is to be filled
within the bargaining unit,
notice of said vacancy shall be posted for five (5) working days prior to the public
posting for the information of all employees on appropriate bulletin boards where
bargaining unit employees work.
The vacant position shall be
awarded to the most senior qualified applicant in
the department where the vacancy exists. The departments for the Health and Human
Services Department shall be defined in Exhibit A. If no one within the department
applies for the position, the position
shall then be offered to the most senior qualified
bargaining unit employee before filling the position with a non-bargaining unit
employee. Any employee filling a position under this section shall serve a
probationary period of six (6) months, unless waived or lessened by the department
. . .
For the purpose of layoff, the County recognizes
seniority therefore, whenever the
County determines it is necessary to decrease the work force and to layoff employees, such
layoff shall subject to the following procedures, be in inverse order of the employee
"seniority". The order of layoff shall be as follows:
Employee/Position: Temporary employees in the involved
department in which the work force is being reduced shall be laid off first.
. . .
The County shall not be required to process any grievance
which is based upon an occurrence
more than thirty (30) days prior to the date of it being offered as a complaint, or a complaint
is filed more than thirty (30) days after the Union knew, or should have known of the
grounds for such complaint, except that in discharge and suspension cases the time limit shall
(5) working days. When an employee is suspended or discharged, the employee and the
be notified in writing of such action and reason for same.
This dispute involves a limited-term employee (hereinafter LTE), so the following
information about LTEs is pertinent herein. An LTE is a temporary employee. In this
terms "LTE" and "temporary employee" are used interchangeably. Over the
years, the County has employed LTEs in various departments. (The record does not
many). Unlike regular full-time and part-time employees, LTEs do not receive fringe
are not included in the bargaining unit represented by the Union. (Note: The Union
bargaining unit consisting of regular full-time and part-time employees who work in the
and its auxiliary departments and offices). Since LTEs are not in the bargaining unit, the
collective bargaining agreement does not apply to them. While there is some language in the
collective bargaining agreement dealing with temporary employees, there is no contract
which limits how long LTEs can work or specifies what they are paid. Similarly, the County
not have a written policy regarding its usage of LTEs, so no such policy is involved herein.
County does not notify the Union about the LTEs that it hires. Historically, the County
to working six months or less. Thus, the traditional end for LTE employment is six months.
Notwithstanding that traditional end point for LTE employment, some LTEs have worked
that by having a break in service and then coming back to work. Historically, the break in
two weeks. This process would occur as follows: the person would work for, say, six
have an unpaid break in employment for, say, two weeks, and then return to work for
When this happened, the employee still kept their status as a temporary employee and did not
a regular employee. The record indicates this is what Helen Abstetar, Marilyn Bohrmueller,
Schleicher, John Holtz and Jamie Simon did. Each of them was an LTE who worked for the
several times; their status as temporary employees never changed and they never became
employees or received permanent positions with the County. The only way a temporary
become a permanent position (and an LTE become a regular employee) is if the County
formally takes action doing that. It cannot happen accidentally or by inaction.
The grievant herein, Carol Ruge, formerly worked as an LTE in the County's Real
The following facts pertain to Ruge's hiring as an LTE. In May of 1998, there was a
of work to perform in the County's Real Property Listing Office because of increased real
transfers in the County. To help alleviate that backlog, the County decided to create and fill
position. The County listed the position with the State of Wisconsin's Job Service. That
indicated in the "Job Title" section that the County was looking for a "temporary clerical."
section entitled "Duration/Hours Per Week", the listing indicated that it was a "temporary
hours per week". In the section entitled "Job Description", the listing indicated thus:
THE SHEBOYGAN COUNTY HIGHWAY DEPARTMENT
HAS AN OPENING FOR A
TEMPORARY CLERICAL POSITION IN IT'S REAL PROPERTY LISTING OFFICE.
WILL INCLUDE BASIC CLERICAL AND RECEPTIONIST DUTIES.
WILL WORK A MINIMUM OF 25
HOURS PER WEEK. HOURS ARE VARIABLE. JOB
WILL LAST ABOUT 3 MONTHS.
Carol Ruge applied for the position. In applying for the position,
she indicated on her application that
she was applying for the above-referenced "temporary clerical" position. Ruge was
interviewed for the position by Ed Harvey, who was then the real property lister and
the department. During the interview, Harvey told Ruge that if she was hired for the
would be a three month temporary position because he (Harvey) only had funding for that
three months). Harvey offered Ruge the position and she accepted it. Ruge knew when she
the position that it was a temporary position. The position paid $10.50 an hour with no
The following facts pertain to Ruge's employment history. Ruge started working in
Property Listing Office on June 9, 1998. She performed general clerical duties including
the phones and responding to inquiries from the public, data entry, proofreading and filing.
Ruge worked in the Real Property Listing Office, it was part of the County's Highway
and was headed by Ed Harvey. Harvey was Ruge's supervisor. The original three month
Ruge was told she would work came and went, and she continued to work in the department.
November, 1998, Harvey told Ruge that since she was an LTE, she had to take two weeks
without pay. That is what happened. Ruge's last day of work was November 20, 1998.
later, on December 7, 1998, Ruge resumed employment as an LTE in the same department
Real Property Listing Office). When she returned to work, Harvey told her that he (Harvey)
money in his budget to pay her through December 31, 1998. That is what happened. On
31, 1998, Ruge's employment as an LTE ended.
Several months later, in March or April, 1999, Harvey called Ruge and told her that
money in his budget to hire her back again as an LTE for five months. Ruge indicated she
interested in returning, whereupon Harvey told Ruge to apply for the position at the Job
office. The listing indicated in the "Job Title" section that the County was looking for an
General Clerical". In the section entitled "Duration/Hours of Work Per Week" the listing
that it was a "temporary job, 20 hours per week." In the section entitled "Hours", the listing
indicated the position was "temporary, part-time for five months." In the section entitled
Description", the listing indicated thus:
GENERAL CLERCIAL DUTIES IN THE SHEBOYGAN
COUNTY HIGHWAY DEPART
FOR IN-PERSON AND TELEPHONE CUSTOMER SERVICE, DATA ENTRY,
PROOFREADING AND FILING.
Ruge was subsequently offered the LTE position which she
accepted. She started working again for
the County in the Real Property Listing Office on April 12, 1999. She sat at the same desk
as she had
sat at before and had the same employee number. She performed the same work duties as
performed before. In early September, 1999, after Ruge had worked there about five
told her that she had to have a two-week unpaid break in service to continue as an LTE.
That is what
happened. Ruge's last day of work was September 17, 1999. Two weeks later on October
Ruge resumed employment again as an LTE in the Real Property Listing Office. While she
in the same office as before (i.e. the Real Property Listing Office), and did the same work as
she was affected by the following two changes. First, an organizational change occurred in
about that time. The change was that the office was transferred from the Highway
the Planning Department. One effect of this organizational change was that Ruge had a new
supervisor. Her new supervisor was Mark Leider, who headed the Planning Department.
Ruge received a pay increase. Up until then, she had been paid $10.50 per hour. Her new
was $11.25 per hour. Neither of these pay rates can be found in the wage tables in the
collective bargaining agreement. Ruge worked until March 3, 2000, at which point her
as an LTE with the County ended.
During the four separate periods that Ruge worked for the County, she normally
between six and eight hours per day. She worked a different work schedule than her
The co-workers who she worked with were regular employees and thus were bargaining unit
employees. Ruge never paid union dues during any of the four periods that she worked for
County. She kept the same County personnel number throughout her four separate
In late 1999, the County decided to create a new position in the Real Property Listing
At the time, there were four full-time land description jobs in the department, so the County
a fifth full-time job. The new position was for a Land Description Technician I,
which is the lowest-paying position in the department. That position was posted on
January 10, 2000. The position paid
less per hour than what Ruge was then making. Planning Director Mark Leider knew that
interested in the job, so he spoke to her about it. When they talked about the job, Ruge
if her pay and benefits would be based on her hire date as a temporary employee. Leider
that he did not know the answer. Leider then asked Ruge if she was going to apply for the
she replied in the negative (i.e. that she was not going to apply) because she did not want to
as a new employee, but rather wanted to be treated as an employee with two years seniority.
Ruge nor anyone else from the Real Property Listing Office applied for the posted position.
Since no one from the Real Property Listing Office applied for the posted position,
posted the vacancy unit-wide. Darcy Vollrath was the only applicant. She was tested for the
and passed the test. The County awarded her the position.
Ruge filed a grievance on March 20, 2000 which contended that she should have
the position just referenced. The grievance was appealed to arbitration in July, 2001. An
hearing on the grievance was subsequently scheduled for October, 2001, but the hearing was
cancelled at the parties' request. Thereafter, settlement discussions ensued which were
unsuccessful. In June, 2002, the Union notified the arbitrator that it wished to schedule the
for hearing. A hearing was eventually scheduled for April 30, 2003.
At the hearing, Ruge testified that she was told repeatedly that she would get a
position in the department, and that was the reason she kept coming back to work there as an
She also testified that if there had been no future to the job, she would not have kept coming
She testified that she hoped she would eventually get a regular position with the County, and
she did not, she felt betrayed, hurt and used by the County. Finally, she testified that the
told Leider she would not apply for the posted position was because she had not received
to all of her questions about seniority and wages.
Managers Ed Harvey and Mark Leider testified they never told Ruge that she was a
permanent employee or that she was going to become a permanent employee.
POSITIONS OF THE PARTIES
The Union's position is that the grievance should be sustained. It makes the
arguments to support that contention.
The Union begins with the following preliminary comments about the County's use of
temporary employees. It acknowledges at the outset that the County can use temporary
However, as the Union sees it, what the County is now doing is creating an alternate/shadow
force composed of temporary employees that are not covered by the collective bargaining
It notes that these temporary employees are paid less than bargaining unit employees and get
fringe benefits. The Union avers that these temporary employees do not replace anybody, or
special projects, but instead simply do the daily work that is also performed by bargaining
employees. According to the Union, these LTEs essentially work an unlimited amount of
Union believes the County's use of temporary employees is an injustice, and it asks the
Having made those comments about the County's use, in general, of temporary
the Union next calls attention to the fact that the parties have had prior arbitrations dealing
temporary employees. Specifically, the Union cites arbitration awards issued by WERC
Schiavoni, Davis and Hoornstra. According to the Union, their arbitration awards are
and support the Union's position.
That said, the Union turns its focus to the grievant's treatment. The Union
County's treatment of the grievant as a great injustice. In its view, the County strung her
an employee for a 2½ year period, all the while promising her a regular job. Then,
when a permanent
job did come along in her department, the County would not even let her post for it, and
terminated her. It is the Union's position that the County should have given her the job. It
on this point as follows.
First, while the County asserts that Ruge was a temporary employee, the Union
assertion. As the Union sees it, Ruge was not a temporary employee in January, 2000 when
County would not let her post for the newly-created position. To support the notion that
not a temporary employee, the Union asserts that there was nothing temporary about the
performed in the Real Property Listing Office in the 2½ year period she worked there.
As the Union
sees it, she performed the same job duties daily. The Union disputes the assertion that she
backlog filing. The Union submits that a temporary employee is someone who lacks an
of continued employment. According to the Union, Ruge could not have been a temporary
because she had an expectation of continued employment; each time she left, she knew when
returning to work. With regard to the County's reliance on the five temporary employees
worked multiple time periods yet remained temporary employees, the Union argues that the
did not provide enough information about those instances to make a nexus to this case. For
the Union opines that those five employees could have been project employees.
Second, the Union argues that overall, Ruge worked long enough for the County to
deemed a regular employee and become a member of the bargaining unit. Building on that
(i.e. that Ruge came to be a regular employee, as opposed to a temporary employee), the
characterizes the time she was off work as "layoffs." According to the Union, the various
periods which Ruge had to endure should not disqualify her from being considered a regular
employee. The Union avers that the various "layoff" periods were invented to circumvent
collective bargaining agreement and create a paper trail attempting to show that her
relationship with the County was severed. The Union maintains that her employment
with the County was never totally severed because after each "layoff" (except the last one, of
she was "recalled" to work.
Third, the Union asserts that if the County had properly recognized Ruge as a regular
employee, and allowed her to bid on the vacant position in the Real Property Listing Office,
then Ruge would have gotten the job. The basis for this contention is the Union's
the contract language to say that if there is a bidder from the department in which the
(in this case, the Real Property Listing Office), then the job goes to that person. Here, Ruge
have been the only bidder from that department, so she would have gotten the job.
Finally, building again on the premise that Ruge was a permanent employee, as
a temporary employee, the Union contends there was no "cause" to terminate her
the County on March 3, 2000. The Union avers that the County's argument challenging the
grievance as untimely is unpersuasive and without merit.
In order to correct the injustice done to Ruge, the Union asks the arbitrator to award
following relief: First, Ruge should be placed in the Land Description Technician I position
awarded to Vollrath. Second, Ruge should be made whole. As the Union envisions it, a
order would include all wage step increases, back pay and fringe benefits going back to
original date of hire (i.e. June 9, 1998), plus interest. Third, Ruge's probationary period
based on her original date of hire. Fourth, the County should be ordered to cease and desist
continuing hiring 'unlimited' limited-term employees in regular positions."
The County's position is that the grievance lacks a contractual basis and therefore
denied. It makes the following arguments to support that contention.
The County asserts at the outset that since the bargaining unit is limited to "regular
and part-time personnel employed. . .in the courthouse. . .and its auxiliary departments and
. .", the crucial question herein is whether Ruge was a "regular" employee. It avers she was
County begins its discussion on this point by citing Article 23 wherein it defines a regular
"as a person hired to fill a regular position." It contends that the record evidence
establishes that Ruge was not "hired to fill a regular position", but rather was hired to fill a
position. It cites the following record evidence to support that premise. First, that at her job
interview, Harvey told Ruge that the position would be temporary. Second, that Ruge
her job application that she was applying for a "temporary position." Third, that the
actions sheets show in numerous places that the County considered Ruge a temporary
rather than a regular employee. Fourth, that at the hearing, Ruge acknowledged that she
she had a temporary job as opposed to a regular or permanent job. Fifth, that at the hearing,
Harvey and Leider testified they never told her that she had a permanent regular job. Sixth,
hourly pay rates which Ruge was paid are not wage rates found in the wage tables in the
bargaining agreement. The Union asserts that if Ruge had been a regular
employee and thus part of the bargaining unit, her pay rate would have been
determined by the union
agreement; instead, her pay was simply set by Harvey and Leider. Seventh, that at least five
county courthouse temporary employees have worked several periods of time yet remained
as temporary employees and did not get regular positions. In the County's view, the
evidence should conclusively prove that Ruge was never "hired to fill a regular position"
meaning of Article 23), but instead filled a temporary position. The County believes that
dispositive of the outcome herein. According to the County, the fact that Ruge worked much
in total, than was originally anticipated did not change her temporary status to that of a
employee or a bargaining unit member.
Next, the County argues that even if Ruge were a member of the bargaining unit, she
entitled to the vacant position because she did not apply for it when it was posted in January,
It notes in this regard that when Leider asked her if she intended to apply for the position,
him no. It further notes that at the hearing, Ruge contended that she did not submit an
because she had not received definite answers to all of her questions about matters such as
and wages. As the County sees it, this is hardly an excuse. It avers that if the arbitrator
Ruge's position on this point, this would throw the entire posting procedure into chaos
County would not only have to determine who is the most senior qualified bargaining unit
from among a group that applied for the position, but also from "those who may have some
unanswered questions about the position."
Next, the County argues that it complied with Article 25 when it filled the position in
question. It notes in this regard that it posted the vacancy. Since there were no applicants
within the affected department (i.e. the Real Property Listing Office), it then posted the
wide. The County notes that it awarded the position to the sole applicant, Darcy Vollrath.
Finally, the County contends that even if Ruge was a bargaining unit member, her
was untimely. This argument is premised on the notion that the grievance challenges her
as an LTE effective March 3, 2000. The County calls the arbitrator's attention to the fact
grievance was filed on March 20, 2000. According to the County, if the date of the alleged
violation was March 3, 2000, the grievance challenging same was untimely filed.
The County disputes the Union's contention that two prior arbitration decisions
parties are applicable here. In the County's view, those decisions do not support the Union's
in this case.
In sum, the County believes the grievance has no contractual basis. It therefore asks
arbitrator to find in its favor and deny the grievance. The County asserts that if the
the Union's position in this case and awards the remedy requested (i.e. the
posted position goes to Ruge instead of Vollrath), this would constitute a violation of
While the County contends that the grievance was untimely filed, it is assumed for
of discussion herein that it was timely filed. The rationale for this finding will become
apparent at the
end of this discussion. That being so, no other comments will be made regarding timeliness.
My discussion on the merits begins with the initial observation that the Union seeks
me remedy two separate parts of what can be characterized as the temporary employee
involves the big picture, so to speak, while the other involves just a small part thereof.
specifically, one involves the County's use of LTEs in general and the other involves the
of one particular LTE (namely, grievant Ruge).
Attention is focused first on the County's treatment of LTEs in general. The Union
the County is using temporary employees as a shadow work force completely separate from
bargaining unit. The Union further avers that these temporary employees do not replace
or do special projects, but instead simply do the daily work that is also performed by
employees. That may be. However, even if that is so, the only way an arbitrator can
remedy that is
if a contract violation is shown to exist. The Union proves that, of course, by showing that
County's use of temporary employees violates provisions in the collective bargaining
which prohibit, restrict or limit the County's use of temporary employees.
While some collective bargaining agreements impose numerous restrictions or
the employer's use of LTEs or temporary employees, this particular collective bargaining
does not. For example, one restriction sometimes found in collective bargaining agreements
temporary employees can only work for a certain time period or number of days, and if they
past that point, they become bargaining unit members. This contract does not contain any
limitation. While this collective bargaining agreement does have some language dealing with
temporary employees, that language does not limit the County's use of LTEs much. The
analysis of that language shows this.
In the context of this case, just two contract provisions which deal with temporary
are applicable. The first is Article 23, b. That provision contains a definition of a
employee. Specifically, it defines a temporary employee as someone: ". . .hired for a
of time and who will be separated from the payroll at the end of such period." In order to
with this language, all the County has to do is tell the temporary employee when they are
they are going to work for a specific time period, and after
that time period is over, their temporary employment with the County is finished.
While this language
says that the temporary employee "will be separated from the payroll" at the end of that time
it does not say what happens if that end point comes and goes and the employee is still on
Once again, it is noted that some contracts specify that if that happens, the penalty imposed
employer for letting that deadline pass is that the LTE becomes a bargaining unit employee.
contract does not say that. The second contract provision applicable here is Article 11, II,
A, 9. That
provision specifies that temporary employees ". . . shall not be used to reduce, replace or
regular full-time employment." This provision essentially protects regular employees (i.e.
unit employees) from temporary employees; not the other way around. So long as temporary
employees are not used to "reduce, replace or displace" regular employees, the County can
(i.e. temporary employees) as it wishes.
Having reviewed that contract language, the next step is to apply it to the facts.
Before I do
that though, I need to decide if Ruge was a temporary employee or a regular employee. If
a temporary employee, the foregoing language will be applied. On the other hand, if she
was not a
temporary employee, but instead a regular employee, then different contract language
There is no question that Ruge was hired initially to fill a temporary position.
it crystal clear to Ruge when he hired her in June, 1998 that she was not being hired to fill a
position. Instead, she was being hired to fill a temporary three-month position. Since she
for a specified period of time", namely three months, she fits within the contractual
definition of a
"temporary employee" that is contained in Article 23, b. The same is true of her hiring in
Once again, Harvey made it crystal clear to Ruge that she was not being hired to fill a
position. Instead, Ruge was being hired to fill a temporary five-month position. That being
she was still a "temporary employee" in January, 2000 within the meaning of Article 23, b
she was "hired for a specified period of time", namely five months.
The crux of the Union's case is that at some point in time during her employment
County (the Union never specifies when), Ruge was transformed from a temporary employee
regular employee and thus became a member of the bargaining unit. I could readily accept
contention if it had either a contractual or a factual basis. However, it has neither. The
analysis shows this.
The contractual aspect is addressed first. As previously noted, there is no language
collective bargaining agreement that says that a temporary employee becomes a regular
he/she works past a specified date or works past the time period the employee was originally
to work. While Ruge did work longer in her first stint with the County than originally told
months), this did not transform her from being a temporary employee
to a regular employee. Under the contract language contained in Article 23, a,
the only way someone
can become a "regular employee" is if they are "hired to fill a regular position." That never
here. Specifically, Ruge was never "hired to fill a regular position." When the County
approved the creation of a new job in the Real Property Listing Office, that did not change
temporary position into a permanent position which she automatically assumed. That's not
vacant bargaining unit positions are filled. When new bargaining unit jobs are created, the
are filled via the procedure specified in Article 25, B. There is nothing in Article 25, B, or
in the contract for that matter, that gives temporary employees preference in new jobs over
unit employees. In fact, just the opposite is true (namely, that bargaining unit employees
preference in jobs over non-bargaining unit employees). Given the foregoing, it is held that
contention that Ruge was transformed from a temporary employee to a regular employee has
That same contention has no factual basis either. First, the record indicates that the
has had other temporary employees who worked for the County several times, just like Ruge
Their status remained that of temporary employees and they never became regular employees
received permanent positions with the County. Second, notwithstanding the Union's
assertion to the
contrary, I find that the type of work that Ruge performed when she worked in the Real
Listing Office is of no significance herein. Third, notwithstanding Ruge's testimony to the
I credit the testimony of Harvey and Leider that they never told Ruge she was a permanent
or that she was going to become a permanent employee. Given the foregoing, there is no
basis upon which the undersigned can find that Ruge became a regular employee during the
of her employment with the County.
This finding that Ruge was never transformed from a temporary employee to a
employee essentially disposes of all the remaining contentions. First, since Ruge never
regular employee, she was not contractually entitled to bid on the position which was posted
department in January, 2000. At that point, she was still a temporary employee. Under the
procedure contained in Article 25, B, the County has to award the position to a bargaining
member if they apply. That is what happened, so the County was contractually obligated to
the position to the bargaining unit member who applied (Vollrath). The fact that Ruge
position is not controlling. What is controlling is the contractual posting language, and the
complied with it. Second, since Ruge was a temporary employee in January, 2000, the
"just cause" and "layoff" provisions did not apply to her. Those provisions only apply to
unit members and she never became a member of the bargaining unit. Third, the County's
here did not violate either of the two contract provisions dealing with temporary employees
were reviewed earlier. Specifically, no violation of Article 23, b or Article 11, II, A, 9 has
Finally, it is noted that the undersigned has reviewed the arbitration decisions cited
Union. In my view, they are all factually distinguishable from this case. Thus, they are
In light of the above, it is my
1. That the grievance was timely filed;
2. That during the course of her employment with the County, Carol Ruge was
transformed from a temporary employee to a regular employee. Thus, she never became a
of the bargaining unit; and
3. That the County did not violate the collective bargaining agreement when it
award Carol Ruge the regular position of Land Description Technician I in February, 2000.
Therefore, the grievance is denied.
Dated at Madison, Wisconsin, this 7th day of August, 2003.
Raleigh Jones, Arbitrator