BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ONEIDA COUNTY COURTHOUSE
LOCAL ASSOCIATION NUMBER 158
(Three Lakes Zoning Office - Stoltz Grievance)
Oneida County Personnel Department, P.O. Box 400, Rhinelander, WI 54501-0400, by
Jackson, Personnel Director, appearing on behalf of the County.
Wisconsin Professional Police Association, LEER Division, 340 Coyier Lane,
Madison, WI 53713,
by Mr. Robert West, Consultant, appearing on behalf of the
Pursuant to the provisions of the collective bargaining agreement between the parties,
Wisconsin Professional Police Association/LEER Division (hereinafter referred to as the
Oneida County (hereinafter referred to as the Employer or the County) requested that the
Employment Relations Commission designate Daniel Nielsen of its staff to serve as arbitrator
dispute over the designation of Carrie Stoltz to staff the County's satellite zoning office in
Lakes, Wisconsin. The undersigned was so designated. A hearing was held on October 23,
in Rhinelander, Wisconsin, at which time the parties were afforded full opportunity to
testimony, exhibits, other evidence and arguments as were relevant. The parties submitted
on oral arguments at the close of the hearing, with the understanding that the arbitrator
provide an expedited decision on the matter.
The parties stipulated that the grievance was properly before the Arbitrator and that
following issue should be determined:
Did the County violate the Courthouse collective bargaining
agreement when it directed the
Grievant, Carrie Stoltz, to work out of an office in the Town Three Lakes?
The Union represented at hearing that it was not seeking any monetary remedy in this
matter and that
if a violation was found, the Arbitrator should limit himself to a declaration of rights to
violations of the contract.
ARTICLE 6 SENIORITY
PROMOTIONS RECLASSIFICATION -
. . .
Section C: Departmental
Seniority: The principal of departmental seniority with ability and
qualifications shall govern in promoting, demoting, transferring, filling vacancies and new
Departmental seniority shall apply in any office having two or more Association members.
Section D: County-wide
Seniority: The principal of the County-wide seniority with ability and
qualifications shall govern in filling jobs or vacancies and new positions not filled by
the department. County-wide seniority shall govern layoffs, recalls after layoffs and
providing the remaining employees are capable of performing the available work.
. . .
ARTICLE 7 VESTED RIGHTS OF
. . .
Section A: The right to employ, to promote, to
transfer, to discipline and discharge employees,
and to establish work rules is reserved by and vested exclusively in the Oneida County Board
its duly appointed Personnel Committee and duly appointed department heads. (The
of the exercise of the aforementioned vested rights shall be subject to the grievance
. . .
Section D: The County shall have the right to hire
and transfer employees on a temporary basis
to handle emergencies or excessive workloads in any office or department of the Courthouse.
. . .
The County's Planning and Zoning Department has its main office at the county seat
Rhinelander. For years there has been a satellite office in Minocqua. In 2002, the
provided service in a second satellite office in Three Lakes. That office was staffed each
during the construction season from May through September. The staffing was done on a
basis among the staff members. In 2003, the County Board directed the Department to staff
Lakes on a full-time basis beginning with the start of the construction season. The Grievant
Stoltz, was directed to staff the office.
The question in this case is whether the County had the right to direct the Grievant to
the Three Lakes office on a full-time basis during the construction season in 2003, without
her seniority. The Grievant did not wish to be moved from the Rhinelander office to Three
there was at least one less senior employee who had the basic qualifications to staff the
Union argues that this was a vacancy and/or a transfer. Vacancies and transfers require
of seniority. The County argues that this is clearly an assignment, which may be made in
discretion of management.
The Union argues first that this was a new position and thus a vacancy was created
to be posted. This in an ingenious argument, but there are a number of problems with it, the
serious of which is that that theory was never articulated at any point prior to the arbitration
While parties have the right to modify their arguments somewhat at the arbitration step, there
generally a right to transform the case into a completely new and different grievance than
processed to arbitration. I find that I do not have jurisdiction over a grievance claiming that
Lakes was a vacancy that should have been posted, because such a grievance has never been
1/ It bears noting that, if this was a vacant
new position, entirely different issues would have been raised by
this transaction. Since the County was proceeding on the basis of a stable headcount, there
would have been a
layoff on the basis of county-wide seniority to account for the position that would have been
eliminated in the
Rhinelander office. If no one in the Department wanted the vacancy in Three Lakes, it
would have been opened
to bid by the other qualified members of the bargaining unit based on county-wide seniority.
Given the technical
skills required, it is likely it would not have been filled internally and would have been
opened to outside applicants.
Then, when the construction
period ended, the process would have been
reversed with the Three Lakes position being eliminated, and a
"new" position being created in Rhinelander. None of those issues can fairly be read into
the grievance as filed.
Turning to the central issues presented by the grievance, contrary to the arguments of
parties I do not find that the contract is clear or unambiguous as to the distinction between an
assignment and a transfer. Typically an assignment is considered to be a direction to
perform a set
of work tasks within the employee's job description and employing unit. This could
completely different tasks than had previously been performed, so long as they are fairly
job description. A transfer would normally be a move to a different job title or department.
multi-site operations, a geographical move would also be considered a transfer, even though
duties and employing unit do not change. Thus it also has the characteristics of an
Broadly speaking, this transaction has more characteristics of a transfer than it does of an
Those, however, are generalizations -- the scope of the terms varies from contract to
it is not fair to say that either has an absolutely clear meaning.
The County argues that this is a job assignment because that is the most efficient
the preamble to the collective bargaining agreement cites efficiency as one of the reasons for
the contract, and because there is a past practice of making geographic assignments without
consideration of seniority. As to the first of these arguments, I find this unpersuasive. The
"Agreement" section of the contract describes the general aims for entering into bargaining
negotiating a contract. It does not describe the substance of the agreements reached in that
or dictate that contract interpretations be made based on how well they satisfy the goal of
The County's second line of argument is more persuasive.
The County points to four practices that it claims show an understanding that
moves are not transfers -- the use of Minocqua employees to cover absences in Rhinelander
versa, the assignment of Zoning personnel to Three Lakes in 2002, the geographic
Departments' staff to off-site locations, and the staffing of the Minocqua office. The first
these are easily distinguishable. Both represent intermittent assignments of very short
no intention of any lasting change in the location of the affected employee's job. In neither
it be said that a distinct separate position or assignment existed. Moreover, the contract
allows transfers to cover temporary workload problems in other offices.
The fact that maintenance employees are assigned to various facilities under this same
is more persuasive. The evidence is that employees may be moved from site to site for long
up to several years, and that no posting, bidding or other consideration of seniority has been
employed in making those moves. The Union argues in response that there
is no evidence that anyone objected to these moves, and thus there may not have been
for a grievance. That is possible, but it is not generally the case that a series of assignments
posting could have been made with no protest to the process if the Union believed that these
should be made by seniority.
The most persuasive evidence in this case and the factor that leads me to conclude
direction to the Grievant to work in the Three Lakes office was an assignment rather than a
is the fact that the assignment of personnel to the other satellite office in Minocqua has never
treated as a transfer. Positions in Minocqua are filled by assignment, with no posting or
That is precisely the same situation that is at issue here. If the Three Lakes position
it follows that positions in Minocqua should have been posted and bid as transfers, and that
On the basis of the foregoing, and the record as a whole, the undersigned makes the
The County did not violate the collective bargaining agreement when it directed the
Carrie Stoltz, to staff the Three Lakes office. The grievance is denied.
Dated at Racine, Wisconsin, this 30th day of October, 2003.
Daniel Nielsen, Arbitrator