BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
THE AMERICAN FEDERATION OF STATE,
AND MUNICIPAL EMPLOYEES, LOCAL
THE MENOMONIE BOARD OF EDUCATION
Mr. Steve Day, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 318 Hampton Court, Altoona, Wisconsin 54720, appeared on behalf
of the Union.
Mr. Stephen L. Weld, Weld, Riley, Prenn & Ricci, S.C.,
Attorneys at Law, 3624 Oakwood Hills Parkway, P.O. Box 1030, Eau Claire, Wisconsin
54702-1030, appeared on behalf of the District.
On December 9, 2002, the American Federation of State, County and Municipal
Local 727-C and the Menomonie School District requested the Wisconsin Employment
Commission to appoint an arbitrator from its staff to hear and decide a grievance pending
the parties. The Commission appointed William C. Houlihan. A hearing was conducted on
2003 in the School District offices, Menomonie, Wisconsin. Post-hearing briefs were
exchanged by May 19, 2003.
This grievance addresses Glen Bowe's unsuccessful attempt to bid into a 12-month
Information Systems Assistant position.
BACKGROUND AND FACTS
On September 12, 2002, the District posted an Information Systems Assistant position
full-time, 12-month position. That position was created when one of two 9-month
Systems Assistant incumbents quit. The grievant, who is the senior bargaining unit member
Bruce Turner who was the least senior bargaining unit member, but the incumbent in the
9-month Information Systems Assistant position, applied. The 12-month Information
Assistant has the same job description and qualifications as did its 9-month predecessor.
Menomonie School District's Technical Director, reviewed both sets of credentials. She
that Glen Bowe was not qualified for the position and that Bruce Turner was. The position
awarded to Turner.
On September 30, 2002, a grievance was filed. That grievance was denied on
The job posting contains the following provisions:
. . .
DESCRIPTION: Ability to fulfill requirements of the
qualifications as listed in the Job
Description #741 Information Systems Assistant. Candidate must submit detailed
qualifications as described on the qualification evaluation form which is supplied in the
The qualifications and requirements must be
understood and demonstrated by the person posting
into this position by the end of the 30-day qualification period; the 30-day qualification
be determined at the time of the posting meeting.
. . .
This is to inform you of a job posting meeting to be held
Thursday, September 26, 2002, at
3:00 p.m. at the Administrative Service Center. If you are interested in this position,
or any other
positions that might become available because of any transfers that might occur, you should
this meeting. If you are unable to attend the meeting, but you are interested in this position
other position(s) that might become available, please submit your letter of interest to Debra
by 8:00 a.m. on September 26, 2002.
. . .
The job posting meeting referred to in the position vacancy is the round table posting
found in Article VII, Section 4 of the collective bargaining agreement.
A roundtable meeting is a process historically utilized by the District to fill
Traditionally, a position was posted. At the conclusion of the posting period, a meeting was
scheduled and all employees interested in the vacancy, or any vacancy that might be created
consequence of transfer or promotion, were welcome to attend. At the roundtable meeting,
vacancy was filled. Subsequent vacancies, created by the promotion or transfer, were also
process was designed to speed the filling of positions.
It was the testimony of Mark Case, Matt Wegner, and Dave Young, all of whom
were long-term employees of the District, that the most senior applicant for vacancies was
According to these witnesses, qualifications were never discussed, nor considered. It was the
testimony of Shirley Kuhn, support staff administrator, that while qualifications were not
part of the process, the District has selected less senior employees for transfer. Kuhn
testified to an
incident in the food service operation where employees were tested as to the minimum
of a job and a less senior employee awarded a vacancy. Her testimony relates to a single
which occurred in excess of ten years prior to the hearing date.
At the time of the posting, Glen Bowe had worked for the District for approximately
years. He began as a custodian and successfully posted into the Electrical Major
position. When that job was abolished, he bumped into the Library Media Technician
position, in July
of 1998. However, before he was awarded that position, the employer made him pass a
test. The Library Media position subsequently became the Media Communications
September of 1998. In the spring of 2001, the Media Communications Technician position
abolished. At that time, two 9-month Information Systems Assistant positions were created.
of the duties of the Media Communications Technician were distributed to the ISA
Ms. Lyons was new to the District, and somewhat unfamiliar with the roundtable
She created a detailed and elaborate form to judge the qualifications of applicants for the ISA
The formality and scrutiny was unprecedented in the District. Mr. Bowe did not attend the
roundtable meeting, due to a family commitment. He did send a timely letter of interest, and
a co-worker to represent him at the meeting. His absence from the meeting is permitted by
practice of the parties and the terms of the posting. Bowe did not submit evidence to support
application. He had a conversation with John O'Connor, Director of Human Resources, who
requested supporting documentation. None was forthcoming. Mr. Turner supplied a wealth
Ms. Lyons concluded that Bowe was not qualified. Her evaluation form has ten
detailed categories with a ranking of one through ten. The category of seniority is unranked.
than that, Bowe received six "one"'s, the lowest possible rank; one "two" in the category
training and experience with computers and related" and two "three"'s, in the categories
excellent communication skills, both verbally and written", and "ability to work well with
staff at all
levels to support system needs." His point total was 14 of a possible 90. Mr. Turner,
graded on the
same evaluation form, netted 81 of 90 possible points.
The parties were unable to stipulate to the issue. The Union frames the issue as
Did the Employer violate the contract by failing to award the
posted position of Information
Systems Assistant to the grievant? If so, what is the appropriate remedy?
The District frames the issue as:
Did the District violate Article VII of the
2001-03 collective bargaining agreement when it
determined that the grievant did not meet the minimum qualifications for the Information
Assistant position? If so, what is the appropriate remedy?
This Award will address both issues posed.
RELEVANT PROVISIONS OF THE COLLECTIVE
ARTICLE I RECOGNITION
The Board recognizes the Union as the
exclusive bargaining representative on wages, hours and
conditions of employment for all regular full-time and regular part-time clerical, custodial
maintenance employees, and food service, excluding supervisors, managers.
. . .
ARTICLE II MANAGEMENT RIGHTS
It is recognized that the Board has and will
continue to retain the rights and responsibilities to
operate and manage the school system of the District and its programs, facilities and
the activities of its employees during working hours.
Without limiting the generality of the
foregoing Section 1, it is expressly recognized that the
Board's operational and managerial responsibilities include:
. . .
8. The creation, combination
or elimination of any employee position deemed advisable by the
Board. Combination shall mean the Board's right to combine part-time positions within the
District into full-time positions and the right to combine full-time positions due to diminished
9. The determination of the
size of the working force, the allocation of assignment of work to
employees, the determination of policies affecting the selection of the employees and the
establishment of quality standards and judgment of employee performance.
. . .
SECTION VII SENIORITY
SECTION 1 - Seniority
. . .The employer recognizes the principle
of seniority and such principle shall predominate where
applicable, provided that qualifications of employees involved in any decision to which the
of seniority is applicable, meet any necessary qualifications. The provisions contained in this
are only applicable within each of the restrictive work groups set forth in Article I, Section
Seniority rights may only be exercised and recognized intra the respective recognized work
by mutual agreement of the Board and the Union.
. . .
All new and vacated positions shall be
posted at each school for a period of ten (10) working
days. Such postings shall state the name and location of the job to be filled, the date the job
is to be
filled, hours of the job, qualifications of the job, and the rate of pay. The qualifications set
therein shall be consistent with the job requirements of the position to be filled. The process
above positions shall be conducted per established round table Posting Meeting Procedure.
. . .
SECTION 5 Transfer Layoff
. . .
a. Filling of
Vacancies shall be awarded to the most senior employee qualified
to perform the work available. The qualifications of employees are matters of fact
and include knowledge, skill and efficiency.
b. Qualification Period:
Employees who are not able to satisfactorily perform the work
required by any position awarded pursuant to Section 5. of the Article, shall be
returned to the former position held by such employee within a thirty (30) working-day
. . .
The parties dispute the existence of a practice of transferring the senior applicant,
of qualifications. It appears that that norm is to fill postings with the senior applicant. It
appears that there has been little to no discussion over the qualifications of applicants in the
roundtable process. However, I am not prepared to construe the parties' practice to include
transfers of unqualified candidates. Article VII Seniority, expressly governs this
Section 1 contains the definition of seniority, and also contains the employer's commitment
seniority. That commitment is as follows:
. . .The employer recognizes the principle of seniority and such
principle shall predominate where
applicable, provided that qualifications of employees involved in any decision to which the
of seniority is applicable, meet any necessary qualifications.
Thus, the commitment to seniority is subject to the proviso
the employees involved meet
the necessary qualifications. Section 5 Transfer Layoff Recall
Bumping, is more specific.
Under Section 5, "Vacancies shall be awarded to the most senior employee qualified to
work available." Under the terms of the collective bargaining agreement, an employee must
qualified in order to claim contractual seniority rights. The language is clear and
not subject to repeal by a contrary practice. As a matter of contract construction and
do not believe there to be a binding practice of promoting unqualified, but senior, applicants.
The collective bargaining agreement goes on to define qualifications to include
skill, and efficiency. The employer is entitled to measure knowledge, skill and efficiency in
whether or not applicants for positions satisfy minimum qualifications. The Union objects to
process used. This formal form and process were never previously used. It is true both Ms.
and the evaluation process were new to the District. There is nothing inherently unfair or
about the evaluation form used by the District. The form lists 10 qualifications, including
The Union is critical of the use of seniority as a qualification given the contractual standard.
However, that criteria is not graded on either form. It does not appear that the District
seniority as one of many criteria to be considered. The other qualification criteria parallel
qualifications set forth in the job description of the Information Systems Assistant. Each of
qualifications takes a sentence from the job description qualifications and describes and
qualification. As such, the criteria evaluated are derived from the qualifications demanded of
position. I believe the employer has the discretion to utilize a formal evaluation mechanism,
as that mechanism fairly gauges the qualifications of applicants.
The real question in this proceeding is whether Bowe was fairly evaluated with
respect to his
knowledge, skill and efficiency. Part of the roundtable process is the physical attendance at
meeting. Mr. Bowe was not present. Because he had another commitment, he sent a
his stead. This practice has occurred in the past without negative consequences to the
Mr. Bowe's non-attendance at the meeting cannot be the basis for his non-selection. The
establishes that he was asked for supporting documentation and that he did not provide the
supporting documentation. The record is silent as to whether there exists documentation
in his file. What the employer was left with was the contents of Mr. Bowe's file. Thus, the
the employer used the contents of Bowe's file as the basis for its decision is no cause for
I believe that Ms. Lyons attempted to quantify what ultimately proved to be a
decision. It was her testimony that a score of between 60 and 70 was necessary to attribute
proficiency to an applicant. There is no record support for that declaration. She thereafter
Mr. Bowe a very low composite score and Mr. Turner a very high score. Mr. Bowe was
minimum score possible in criteria after criteria, by construing his credentials in the least
light. Mr. Turner was afforded a more generous standard of review. For example, the
qualification required: "One year of post-high school training in an IT or an IS program or
of work experience in an IT or IS setting required." On a scale of 1 to 10, Mr. Bowe was
1 and Mr. Turner was given a 10. Bowe's score came in spite of the fact that his diploma
transcript from Chippewa Valley Technical College were a part of his file. That transcript
a computer component. Ms. Lyons entered the word "none" in explaining the score. If the
is to be evaluated on a 1 to 10 scale, it is difficult to understand how Bowe is awarded a 1.
Mr. Bowe was given a 3 on criteria 9; "Possess excellent communication skills, both
written" and on criteria 10: "Ability to work well with the staff at all levels to support
This was evidently drawn from Mr. Bowe's evaluations, the most recent of which described
his inter-personal skills and work behavior as "superior". Ms. Lyons note on criteria 9
"Communications skills evident not related to IT issue." I believe this comment
evidences a willful
effort to minimize Bowe's score. I do not believe the evaluation fairly analyzed
Mr. Bowe's skill,
knowledge and efficiency.
Mr. Bowe's credentials are a part of this record. Mr. Bowe's resume and supporting
academic credentials indicate that he had some computer application coursework in 1992.
as the employer points out, much of his coursework has subsequently become dated. Bowe
as a Library/Media Technician. The job description shows a relatively modest computer
component. The position appears to focus on audio-visual equipment. In September of
reporting responsibility of the Library/Media Technician was altered, two minor duties were
and the position was retitled Media/Communications Technician. There appears to be very
revision to the job description. The most significant change is that instead of reporting to the
Library Media Coordinator, the revised position reports to the Computer Network Services
The justification for the elimination of the Media/Communications Technician and the
of Information Systems Assistant positions was to add expertise in the computer area. The
Information Systems Assistant position is a position dedicated to the implementation and
of the District's system-wide computer operation. It calls for skills not previously found in
Media/Communication Technician position. The purpose of the position was to create
expertise in the computer field. When the Media/Communication Technician position was
some of those duties were assigned to the ISA position. However, a great number of those
were sent back to the schools to be handled by other school staff.
In his October 27, 1999 evaluation, Mr. Bowe was rated an above-average employee,
designated as "very dependable". His availability was designated "superior" and it was noted
was "always on time, very good about being flexible on break time if problems arise." His
dependability was designated as "excellent". His productivity and the quality of his work
deemed above average. His interpersonal skills and the behavior and judgment demonstrated
job were both deemed "superior". However, this generally positive evaluation is critical of
computer skills. The one area which is designated as "needs improvement" is, "computer
troubleshooting skills, i.e. Internet knowledge, Win 95, Mac 03." Mr. Bowe was given an
score on initiative, with the following comments: "Would like to see Glen search out the
to buddy up with another tech and expand skills in troubleshooting and repair of computers."
evaluator goes on to note "Computer repair and maintenance needs more practice."
The evaluation has a "knowledge of job" category. Mr. Bowe is rated "average"
to AV skills, but "below average" relative to computer skills.
A relatively minor component of the Media/Communications Technician position
of computer application skills. However, that aspect of the position was Mr. Bowe's
employer abolished the position for the purpose of recreating a position that would bring
computer expertise into the District. Nothing in the record supports Mr. Bowe's claim
that he has
the knowledge, skill and efficiency to qualify for the ISA job.
The grievance is denied.
Dated at Madison, Wisconsin, this 18th day of September, 2003.
William C. Houlihan, Arbitrator