BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CITY OF RACINE
AFSCME LOCAL 2239
(Fowler Out of Class Pay Grievance)
Racine City Attorney, 730 Washington Avenue, Racine, WI 53403, by Mr.
Deputy City Attorney, appearing on behalf of the City.
Wisconsin Council 40, AFSCME, AFL-CIO, P.O. Box 624, Racine, WI 53401-0624,
by Mr. John
Maglio, Staff Representative, appearing on behalf of the Union.
Pursuant to the provisions of the collective bargaining agreement between the parties,
AFSCME Local 2239 (hereinafter referred to as the Union) and the City of Racine
referred to as the Employer or the City) requested that the Wisconsin Employment Relations
Commission designate a member of its staff to serve as arbitrator of a dispute over the
proper pay for
work performed by Helen Fowler. A mediation session was held on the case, but the matter
settled. A hearing was held on February 17, 2003, in Racine, Wisconsin, at which time the
were afforded full opportunity to present such testimony, exhibits, other evidence and
were relevant. A stenographic record was made and a transcript was received on March 10,
The parties submitted post-hearing briefs, the last of which was received by the undersigned
5, whereupon the record was closed.
The parties were not able to agree on a statement of the issue and stipulated that the
Arbitrator should frame the issue in his Award. The Union views the issue as:
Did the Employer violate the collective bargaining agreement
when it refused to reclassify the
Grievant's position to SU-11 by failing to compensate the Grievant out of grade pay? If so,
the appropriate remedy?
The City views the issue as being:
Did the Employer violate the collective bargaining agreement
refusing to reclassify the
Grievant's position to SU-11? If so, what is the appropriate remedy?
The Union's statement encompasses both the request for reclassification and the
theory, that the Grievant should receive out of grade pay for a portion of her work time.
may be fairly read into the statement of the grievance. For that reason, I conclude that issue
most accurately be characterized as:
Did the Employer violate the collective bargaining agreement
when it refused to reclassify the
Grievant's position to SU-11 and/or by failing to compensate the Grievant with out of grade
If so, what is the appropriate remedy?
The City possesses the sole right to
operate City government and all management rights
repose in it, but such rights must be exercised consistently with the other provisions of this
and the past practices in the departments covered by the terms of this Agreement unless such
practices are modified by this Agreement, or by the City under rights conferred upon it by
Agreement, or the work rules established by the City of Racine. These rights which are
exercised by the various department heads include, but are not limited to the following:
1. To direct all
operations of City government.
2. To hire, promote,
transfer, assign and retain employees in positions with the City and to
suspend, demote, discharge, or take other disciplinary action against employees for just
3. To lay off employees due to lack of work
or funds in keeping with the seniority provisions
of the Agreement.
4. To maintain efficiency of City government
operations entrusted to it.
5. To introduce new or improved methods or
6. To change existing methods or facilities.
7. To contract out for goods or services;
however there shall be no layoffs or reduction in
hours due to any contracting out of work.
8. To determine the methods, means and
personnel by which such operations are to be
9. To take whatever action which must be
necessary to carry out the functions of the City
in situations of emergency.
10. To take whatever action is necessary to
comply with State or Federal law.
11. Overtime: The City has the right to
schedule overtime work as required in a manner
most advantageous to the City and consistent with the requirements of municipal
employment and public interest. Part-time and seasonal employees shall not be assigned
overtime unless regular employees are working overtime or are unavailable.
In addition to the management rights listed
above, the powers of authority which the City has
not officially abridged, delegated or modified by this Agreement are retained by the City.
recognizes the exclusive right of the City to establish reasonable work rules. The Union and
employees agree that they will not attempt to abridge these management rights and the City
that it will not use these management rights to interfere with rights established under this
or the existing past practices within the departments covered by this Agreement or by the
rights conferred upon it by this Agreement, or the work rules established by the City of
Nothing in this Agreement shall be construed as imposing an obligation upon the City to
negotiate concerning the above areas of discretion and policy.
. . .
A. Definition of a
Grievance: Should a difference arise between the City and the Union or an
employee concerning the interpretation, application, or compliance with this Agreement, such
difference shall be deemed to be a grievance and shall be handled according to the provisions
herein set forth.
. . .
G. Arbitration: If
the Union grievance is not settled at the third step, or if any grievance filed by
the City cannot be satisfactorily resolved by conferences with the appropriate representatives
of the Union, the grievance shall be submitted to arbitration upon request of either party
within thirty (30) calendar days of receipt of the Step 3 answer.
. . .
Hearing: The Arbitrator shall use his/her best efforts to mediate the grievance
before the final arbitration hearing. The parties shall agree in advance upon procedures to be
used at the hearing and the hearing shall follow a quasi-judicial format. The Arbitrator
selected shall meet with the parties as soon as a mutually agreeable date can be set to review
the evidence and hear testimony relating to the grievance. Upon completion of this review
and hearing, the Arbitrator shall render a written decision as soon as possible to both the
and the Union, which shall be final and binding upon both parties.
. . .
K. Decision of the
Arbitrator: The decision of the Arbitrator shall be limited to the subject
matter of the grievance and shall be restricted solely to interpretation of the contract area
where the alleged breach occurred. The Arbitrator shall not modify, add to or delete from
the express terms of the Agreement.
. . .
C. In the event an employee is temporarily assigned
to a higher pay rated job for eight (8)
continuous work hours, he/she shall receive that higher rate of pay while on such temporary
assignment, except where the employee is
being trained. When the employee is trained, determined to
qualified by the Administrative
Manager (or his designee) and working on the job alone with the complete responsibility,
he/she shall receive the higher rate. However, the City shall not utilize two (2) or more
employees in an assignment to abridge this article.
. . .
The Employer is a municipality providing general governmental services to the
Racine, in southeastern Wisconsin. The Union is the exclusive bargaining representative for
City's City Hall employees, including the clerical employees. The Grievant, Helen Fowler,
Secretary II in the City's Engineering Department. Secretary II is one of the classifications
In February of 2002, the Grievant filed the instant grievance, alleging that her job
inappropriately classified as clerical, when she was in fact working at a higher level. At
Step 3 of the
grievance procedure, she submitted a letter explaining her desire to be reclassified:
March 26, 2002
To Whom It May Concern:
I am writing this to request a
reclassification from an SU8 to a SU11. I am now the Secretary
for the Engineering Department, however my job responsibilities have expanded to such a
I feel that I should be reclassified to a higher grade.
Along with my regular duties I also do the
Time Distribution Sheets that were the
responsibility of Harold Kobbervig the Assistant City Engineer before Tom Eeg. I also do
permits and send out sidewalk orders which was the responsibility of the Sidewalk Inspector,
is an Engineering Technician I. I deal with hundreds of residents and sidewalk
contractors each year
in the management of the City's Sidewalk Replacement Program.
Along with the Time Distribution Reports,
which involves getting all time spent on each job
for the engineers and technicians, I have to put these in sonic semblance of order so that we
extract information that we need, such as billing time and hours for the CDBG
the federal government. After I get this information I give a report to Terry Meier so that
send this to the federal government for reimbursement.
In addition to this, I do the job of ordering the office
supplies. This had fallen to the
Engineering Technician II, who has retired. I train new employees in office procedures. I
the Accountants in Finance with regards to contract payments and special assessments. I
searches on a daily basis.
I process monthly contract payments for over 20 construction
contracts per year. I process
professional service contract payments for more than 10 different consultant contracts per
keep track of and pay on over 15 state construction projects each year. I keep track of
State and Federal Grants that the department manages to supplement the construction
year, which, in the past, Harold Kobbervig handled, until his retirement. I request all
from the DNR for any grants that we are given and I keep track of all grants, their amounts
we will be reimbursed. I handle the storm sewer and manhole contracts that come from the
Utility. Along with the added duties is the added responsibility that goes along with it. If I
get this done, then the City does not receive the money that was granted to them.
I also rent out parking spaces in all
parking system facilities and handle complaints received
from the general public regarding these facilities. I issue "Temporary No Parking Signs",
meter hoods, etc.
I am responsible for renting out mooring
spots for the Harbor Commission. I keep track of
all the renters on a yearly basis.
I type school bus passes for the Transit
System on a bi-annual basis.
I am requesting this reclassification
because I feel that my work goes beyond my job
description and will only get more and more expanded as time goes on, as this has been the
since I have gotten into this position.
Thank you for your consideration of
this request. If you have any questions or need
additional information, feel free to contact me.
The request and the grievance were both denied and the dispute was referred to
several attempts at settlement, a hearing was held on February 17, 2003, and the following
The Grievant testified that her job has changed and become more complicated than it
when she posted into the position in 1993. A great deal of her time is now devoted to
work that had been performed by technical and professional employees. Since
2000, she has been responsible for every aspect of the City's Sidewalk Inspection
program other than
the actual inspections themselves. Much of this work was previously performed by an
Technician, but since his retirement it has occupied 50% of her time on a seasonal basis,
each March. In addition to this, she has taken over the work of a retired Engineering
who formerly was responsible for purchasing for the Department. While this only occupies
her time, these are new duties. She has likewise taken over responsibility for the tracking of
money and submitting reimbursement requests. That work occupies 5 to 10% of her time,
been performed by the Assistant City Engineer until he retired. She has also from time to
compiled materials for bid specifications. Finally, she now spends at least a day each month
time reports in the Department, making sure that time spent on reimbursable projects is
charged to those projects. The Grievant noted that she received out of grade pay in 2000,
worked on Snow Citations in the absence of the Engineering Technician, but has not received
pay for performing all of these other higher rated duties.
On cross-examination, the Grievant acknowledged that she did no actual inspection
the Snow Citation program, nor in the Sidewalk Inspection program. Her new work on the
program and the time distribution reports consists of entering data into a computer database.
also agreed that her purchasing work was a matter of ordering supplies as instructed and
authorization for the purchases from the City Engineer or one of his deputies. She works
hours of overtime each week, because of a vacancy in the other clerical job in the
she explained that the overtime was principally devoted to the City's Parking system.
James Blazek testified that he has been the City Engineer for 25 years. The Grievant
functions as his
secretary. Blazek explained that the change in purchasing duties was principally due to a
switchover to an electronic
system of ordering, rather than manually filling out requisitions and purchase orders. The
same transition took place
in the Sidewalk Inspection program, when a specialized program was written to handle the
record keeping for the
program. The program does the necessary calculations, whereas they used to be done
manually by an Engineer. Time
distribution reports were also computerized in the late 1990's. As with the Sidewalk
program, the Grievant merely
enters the data, and the computer program does the calculations. Blazek said her
responsibilities for obtaining
reimbursement from grant providers consisted of typing up requests for reimbursement,
including breakouts of City
costs, but only after he had reviewed and approved the documents. Blazek characterized all
of these tasks as work that
used to require some technical skills, but which programming had rendered essentially
Blazek acknowledged some overlap between the Grievant's job description and that of
Engineering Technician I, in that she helps assemble needed documents for project
inputs information related to construction projects. He also acknowledged that she tracked
performance of work on grant projects, but opined that this was largely a clerical function.
Blazek also acknowledged that the Grievant was paid out of class pay for her work in
Snow Citations program in 2000. He explained that the winter was particularly snowy and
Engineering Technician could not keep up. He assigned a Sanitarian to assist with the
themselves, and the Grievant to perform the clerical work of the program. Because it was an
assignment to a completely different project, and was an on-going duty of a Technician, he
out of class pay for her.
On cross-examination, Blazek agreed that the clerical work in the Sidewalk program
performed by an Engineering Technician before it was assigned to the Grievant, as was the
for the Department. He also agreed that the tracking of grants was previously done by an
Engineering Technician. He agreed that, in 2000, she received out of class pay for doing
work usually performed by an Engineering Technician. He also acknowledged that, while he
reviewed and approved requisitions and reimbursement requests prepared by the Grievant, he
did this for all such requests in the Department, whether prepared by Fowler or by a
Additional facts, as necessary, will be set forth below.
THE POSITIONS OF THE
The Position of the Union
The Union takes the position that the Grievant is plainly working at a job that above
classification, and that she should more appropriately be placed in pay grade SU-11. While
position may once have merited the Secretary II pay grade, over the years it has accumulated
previously performed by much higher paid employees. She is now responsible for the
Inspection project, which occupies half of her time in the summer months. While many of
duties are clerical in nature, this job was previously performed by an Engineering Tech I.
Grievant performed these duties in his absence, she received SU-14 pay. Now that he has
she is solely responsible for this work, she receives no additional compensation. On the face
this is not reasonable.
The Grievant has also been assigned responsibility for purchasing for the Engineering
Department, as well as requisitioning needed equipment. These duties are generally
the City Engineer, as they were when they were previously performed by an Engineering
Tech II, in
pay grade SU-16. Again, the Grievant is doing the work of a higher rated job without
compensation. Five to ten percent of the Grievant's time is spent tracking grant monies
the City, insuring that the contractors are paid and the City is reimbursed by the granting
Additional time is spent tracking and reporting reimbursable staff hours spent on grant
work was previously done by the Assistant City Engineer. Once again, the Grievant has
assigned the work of a highly paid professional, and is required to do it with no additional
The overall picture here is of a job that has evolved over time into a more complex
technically demanding position than the clerical job the Grievant posted for in 1993. The
remedy is to reclassify her as an SU-11. If, for some reason, the Arbitrator finds that a
is not appropriate, she is at a minimum entitled to receive out of class pay for the time spent
previously performed by Engineering Techs and the Assistant City Engineer.
The Position of the City
The City takes the position that there is no cause to adjust the Grievant's pay rate.
Grievant is a clerical employee and she has been assigned to perform clerical functions.
There is no
evidence that she has performed anything of a technical or professional nature. She has input
into a program designed by others. That is clerical work. She has completed purchase
That is clerical work. She has done record keeping for the time distribution system. That is
work. She has tracked the expenditure of grant monies. That is clerical work. Certainly,
of her work has increased because of vacancies within the clerical ranks. She has been paid
for the increased work.
The Grievant is a clerical employee. She is a skilled employee, but the skills are
technical. She is a hard working employee, but she is paid the appropriate rate for the time
in. There is no basis in the contract, nor in the facts of the case, for an order that the
Grievant be paid
more than her current rate. Accordingly, the grievance must be denied.
The question in this case is not the Grievant's overall merit as an employee, nor
performs her assigned duties well. The question is whether those duties are fairly within her
description. If a substantial percentage of her work is actually that of a higher rated job, it
that she is improperly classified. If a discrete portion of her work is that of a higher rated
job, she is
entitled to out of class pay, per the contract.
The Union's principle argument is that the Grievant has, over time, assumed duties
performed by Engineering Technicians and the Assistant City Engineer, and that the City
assign this work to her without a commensurate increase in pay. That argument has a facial
but it is only persuasive if the additional duties are themselves higher rated duties. Few
professional jobs are solely comprised of tasks requiring the full range of technical or
expertise that is the basis for the higher rate paid to such positions. The fact that an
answer her own phone, prepare her own correspondence, or file her own documents does not
that that work is Engineer's work. On the contrary, those are clearly clerical duties, and if
transferred to a clerical employee it does not follow that they should be paid at the
The Grievant's job description specifies, inter alia, that her duties
Acts as an intermediary for the supervisor,
maintaining frequent contacts with public and
private executives and other officials.
Keeps departmental financial, statistical
and other records and files.
Creates and maintains informational files
on a personal computer.
Receives complaints or supplies
information explaining standard departmental procedures;
interprets regulations according to established standards and applies rules to a variety of
Prepares a variety of routine reports and
Of the duties described by the Grievant, most fit easily into the listed categories. Her
work on the
Sidewalk Inspection program consists of data entry, as did her work in the Snow Citation
Data entry is also the major portion of the her work on tracking grant money and submitting
reimbursement requests. The keeping of financial and statistical records, the creation of
files and the production of routine reports are all listed as elements of her job. None of the
she described them, require specialized technical or professional knowledge or calculations.
extent that specialized calculations are involved in these reports and records, the computer
performs those calculations automatically.
The tasks at issue are clerical tasks, but it is the case that the Grievant received out
pay at the Technician's rate when she performed these same type of tasks in the past. The
a reasonable distinction, however, between those instances and the current situation. Where
Grievant has received out of class pay, it has been for temporarily assuming the duties
duties still assigned to an Engineering Technician. There has been no conscious
redistribution of work from the Technician to the Secretary, and thus the City has treated the
as Technician's work for pay purposes. The work at issue here is clerical work that has
redistributed to the clerical staff, generally upon the retirement of the technical or
employee who had been performing it as an adjunct to his technical and professional duties.
that clearly increases the volume of clerical work the Grievant is responsible for performing,
not change the nature of the work. The appropriate response to an increase in work volume
payment of overtime or an increase in clerical staffing. It is not the payment of a higher
The Grievant's job has clearly evolved over time, and she is now required to perform
tasks than she was when she took the job ten years ago. Those new tasks, though more
related to the technical and professional projects performed in the office, are not themselves
or professional work. While the Grievant is plainly a very accomplished and hardworking
the work she performs consists of clerical tasks that are fairly
within the scope of her existing job description. As such, they do not require either a
of her position or the payment of out of class pay. Accordingly, the grievance is denied.
On the basis of the foregoing, and the record as a whole, the undersigned makes the
The Employer did not violate the collective bargaining agreement when it refused to
the Grievant's position to SU-11 and/or by failing to compensate the Grievant with out of
The grievance is denied.
Dated at Racine, Wisconsin, this 9th day of September, 2003.
Daniel Nielsen, Arbitrator