State Bar of Wisconsin Return to Wisconsin Employment Relations Commission Awards

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In the Matter of the Arbitration of a Dispute Between





Case 569

No. 57910



Mr. John P. Maglio, Staff Representative, Wisconsin Council 40, AFSCME, AFL-CIO, on behalf of Local 2239, AFSCME, AFL-CIO and Kelly Fellion.

Attorney Guadalupe G. Villarreal, Deputy City Attorney, City of Racine, City Hall, 730 Washington Avenue, Racine, Wisconsin 53403 on behalf of the City of Racine.


On August 23, 1999, Local 2239, AFSCME, AFL-CIO and the City of Racine jointly requested that the Wisconsin Employment Relations Commission appoint William C. Houlihan, a member of its staff, to hear and decide a grievance pending between the parties. Hearing on the matter was conducted on December 8, 1999, in Racine, Wisconsin. A transcript of the proceeding was made and distributed by January 4, 2000. Post-hearing briefs were submitted and exchanged by March 6, 2000.


The parties stipulated that the matter is properly before the Arbitrator and to the following statement of the issue:

Did the Grievant meet the minimum qualifications for the vacant position of public safety technician? If she did, what is the appropriate remedy?


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Management Rights

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 contract and the past practices in the departments covered by the terms of this Agreement unless such past practices are modified by this Agreement, or by the City under rights conferred upon it by this Agreement, or the work rules established by the City of Racine. These rights which are normally exercised by the various department heads include, but are not limited to the following:

. . .

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 cause.

. . .

8. To determine the methods, means and personnel by which such operations are to be conducted.

. . .


Grievance Procedure

. . .

I. Arbitration 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

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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 City 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.

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. . .

B. Recognition of Principle: The Employer recognizes the principle of seniority and the Union recognizes the need for maintaining an efficient work force. In all matters involving increase or decrease of forces, layoffs, or promotions, the length of continuous service with the Employer shall be given primary consideration. Skill, ability and efficiency shall be taken into consideration only where they substantially outweigh considerations of length of service, or where the most senior employee is unable to do the work. To prove qualified, the employee must demonstrate ability to do the job within thirty (30) calendar days. An employee shall not receive seniority benefits unless he/she becomes a regular full-time employee.

. . .


Job Postings

A. Posting Procedure: Any job vacancy which occurs due to retirement, quit, death, new position or for whatever reason in the bargaining unit shall be posted.

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The posting shall set forth the job title, duties and qualifications desired, rate of pay, work location or assignment and shift. Sufficient space shall be provided for employees to sign (apply) for said job posting.

All job openings within the province of the bargaining unit shall be posted for five (5) working days in overlapping consecutive weeks. The successful bidder or the Union shall be notified within five (5) work days after the close of the posting.

The City agrees to move the successful bidder to his/her new position as quickly as possible but in no event later than thirty (30) calendar days after notification of his/her selection.

The job posting for any classification shall remain in effect for ninety (90) days following the award of the posted job and shall govern, without any reposting, any job openings occurring within said ninety (90) day period in that job classification.

B. In accordance with Article XII, Seniority, total bargaining unit seniority shall prevail in all job postings except for shift changes which will be based upon classification seniority. Shift changes shall not be subject to Sections C and/or D below.

. . .


The Grievant, Kelly Fellion, has been employed by the City since December of 1988. She initially held the position of Record Clerk, then the position of Clerk in communications and, in 1994, started in her current position of Evidence Clerk.

In late August of 1998, Fellion indicated her interest in a posted position. At the time, two positions had been posted, PC Support Technician (pay classification SU-13) and Help Desk Technician/Computer Operator (pay classification SU-9). There is some dispute as to which position Fellion expressed interest. Fellion testified she had indicated her interest in the Help Desk Technician position, while the City's Senior Personnel Officer, Terry Parker, testified that the City records indicate that Fellion had indicated she was interested in the PC Support Technician position. Regardless, there is no dispute as to Fellion's withdrawing from consideration at the time of her interview, telling Parker that she did not think she was qualified for the position. Fellion did not submit a resume or any written documentation as to her qualifications at that time.

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The PC Support Technician position posting listed the following "Minimum Qualifications":

Minimum Qualifications:

Associate degree in Computer Science or progressive experience and demonstrated aptitude in the field of local area networks, personal computer hardware and peripherals, and office automation software. Applied knowledge of MS-DOS, MS-WINDOWS and MICROSOFT OFFICE personal computing software highly recommended. Ability to effectively assess, isolate and rectify problems encountered with the functionality of placed microcomputer hardware and related peripheral equipment desirable. Ability to consistently follow oral and written instructions and procedures. Maintains a professional appearance and demeanor, and possesses excellent oral, written and organizational skills.

The Help Desk Technician/Computer Operator position listed the following as "Minimum Qualifications":

Minimum Qualifications:

High school graduate or equivalent. Possess a minimum of 24 credit hours in Computer Science from an accredited two year or four year college, with a demonstrated aptitude in the field of personal computer software. Mainframe operations experience desired. Working knowledge of MS-DOS, MS-WINDOWS and MICROSOFT OFFICE personal computing software. Ability to effectively assess, isolate and report problems encountered with the functionality of placed microcomputing hardware and associated peripherals. Ability to collaborate with internal staff and City personnel in an efficient, effective and professional manner. Ability to type 40 wpm (net) and operate various office equipment. Ability to work on a variety of projects concurrently. Excellent oral, written and interpersonal communications skills required. Ability to consistently follow oral instructions and written procedures. Maintains a professional appearance and demeanor, and an acceptable attendance record.

Fellion testified that she withdrew from consideration for the Help Desk Technician position because she did not have 24 credits in Computer Science at the time.

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In 1998 the City's Police Department received a federal grant with regard to the Law Enforcement Automation Project (LEAP) to enable agencies to share information through computer technology. Captain Cooper, head of the Police Department's Administrative Division, was involved in applying for the grant and in creating a county-wide computer system to connect the fire and police departments throughout Racine County. There was to be a common computer system sharing the same software in order to create a common database. Captain Cooper, along with MIS directors for the County and the City, developed the specifications for the new system. The decision was made that an in-house person was needed in the Police Department to provide technical assistance and who would be familiar with the workings of a police department. Cooper testified that due to the speed with which the project was advancing, they needed someone who already possessed the experience and expertise to do the job, as they did not have the time to train someone, and these requirements were written into the job description for a new position of Public Safety Technician.

In February of 1999, the position of Public Safety Technician (pay classification SU-13) was posted. The posting stated, in relevant part:

Essential Duties:

Participates in the evaluation and selection of LEAP software and any hardware additions/modifications pertaining to LEAP software interfacing. Participates with the City and County of Racine MIS departments in evaluating and selecting workstation hardware for use by LEAP agencies and assists those MIS departments' equipment deployment strategies for City LEAP agencies, including the Police and Fire Department remote sites. Participates as a member of the LEAP implementation team during installation and cutover phases of the project. In cooperation with selected software/hardware vendors, implements chosen LEAP solution training plans for City agencies. Acts as liaison between City LEAP agencies and the Racine City and County MIS Departments and acts as liaison to Racine County's LEAP system administrator for LEAP-related matters. Train public safety personnel to use Windows 95, Microsoft Office products and the computer network all in cooperation with the MIS Dept. Attend "train-the-trainer" classes covering LEAP software (including mobile data software) and provide training for public safety personnel in the Police & Fire Depts. (SEE PERSONNEL DEPT FOR COMPLETE DESCRIPTION)

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Minimum Qualifications:

Formal post-high school education in the field of computer-related technology, with an Associate or Bachelor's degree preferred. Minimum 3 years in PC hardware and software solutions, with a knowledge of multiple network topologies and protocols desired. Must possess integrity to administer LEAP/MDC security information in an environment with sensitive information. Must have good communication skills plus teaching experience in computer-related topics, including experience in teaching new users to use Windows 95 and Microsoft Office products. Must be willing to work different shifts as required for teaching shift personnel and must be able to work well in a stressful environment. Familiarity with basic UNIX operating system concepts a plus for MDT administration.

Fellion signed for the Public Safety Technician position. There was one other applicant for the position and Parker recommended the hire of the other applicant, without interviewing Fellion. Parker concluded that Fellion was not qualified for the position after looking at the positions she has held with the City with regard to the requirements of three years of experience working with computer hardware and software and experience in training others in computer programs. Parker also testified that Fellion's withdrawal from consideration previously with regard to the PC Support position also was considered in reaching his decision, as both positions are in the same pay classification and each require troubleshooting, knowledge of application in hardware and software, and training others in understanding and applying the software. Parker noted that while both positions listed an associate degree as "preferred", the PC Support position only required three years of progressive experience and the Public Safety Technician position required a minimum of three years experience. Parker and Captain Cooper testified that the three years of experience was required due to the complexity of the work and the need to have someone who already had the experience and knowledge and could start working in the position without having to be trained.

Fellion testified as follows as to her experience and knowledge with regard to the minimum requirements for the position. At the request of Captain Cooper, Fellion attended a meeting with the vendor who was creating the software for LEAP and participated in the discussion of what was needed for the software as far as handling evidence, e.g., use of bar coding to log evidence in and out. As a result of those discussions, it was determined whether or not certain hardware and software would be purchased. Ms. Fellion's role was largely to explain the job duties and needs. Fellion testified that she was part of that decision-making process. Fellion considers herself to have participated with the City and County MIS departments in that persons from those departments were also at the meeting with the vendor.

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Fellion also testified she has had discussions with other law enforcement agencies in Racine County about hardware in that she discussed the use of bar coding equipment and the integration of software with an evidence clerk for Racine County. Fellion also had discussions about bar coding with Captain Cooper. With regard to training, Fellion testified that she trained her co-worker, McWhorter, on the computer, printer and scanner and at times has helped her supervisors and others in the Police Department with problems they were having using certain software programs, e.g. Microsoft Office Products. She also trained McWhorter on Microsoft Windows 95 and Office Products. Fellion has been providing such assistance for at least three years. She has talked to her present supervisor, Sergeant Sharping, about different software programs and different databases. All training described was of an informal nature. Fellion testified that as regards acting as a liaison with other agencies, she has worked with other counties and has had interaction and shared information with the Racine County District Attorney's office and the evidence clerk with the County. She has had to call the County Jail to obtain information about prisoners and has also shared information with other agencies.

With regard to her formal training, Fellion does not have an associate or bachelor's degree, but has taken a number of classes in computers at Gateway Technical College: Excel Spreadsheets, Microsoft Word for Windows (2); and Microcomputer Operating Systems. The latter course involves learning the fundamentals of various operating systems such as DOS and UNIX. In addition, Fellion has attended a number of related seminars. Fellion also testified she has at least five years experience in software and hardware solutions, has helped develop specifications for hardware that was to be purchased, and that she has knowledge of multiple network topologies, due to the various networks and topologies used by the City and County, through her work since she started employment with the City, and similarly that she has knowledge of different protocols.

Given her position as Evidence Clerk, Fellion also feels she possesses the requisite integrity and ability to use discretion with regard to administering security information. Similarly, she must possess good communication skills in her present position in communicating with the public, co-workers and other departments. In her present position, Fellion built a database and designed a report format that she uses to do a monthly report on the drugs that have been seized.

Fellion prepared a resume that provided information regarding some of her computer-related coursework and experience and intended to submit it at her interview for the Public Safety Technician position. Fellion's resume indicated she had 25 credits toward an Associate degree in Networking Specialist, with coursework in Accounting I, Microcomputer Operating Systems, Basic Networking, Programming, Computer Concepts, Intermediate Internet, Oral, Interpersonal and Communication Skills. Since she was not interviewed, Fellion did not submit her resume until later in the course of the grievance procedure.

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Captain Cooper testified that Fellion's presence, along with other employes at the meeting with the vendor, was requested by him so that Fellion and others could describe the work they performed to the vendor and the vendor could show them what the software could do as relates to their work. Cooper also testified that he called Parker on the day applications were due for the Public Safety Technician position and asked about the applicants. Only two people had applied, Fellion, and an employe in the City's MIS department, Julie Edwardson. Cooper asked who was the more qualified of the two and was told Edwardson was the most qualified. Cooper also asked if both met the minimum qualifications and was told that Fellion did not, but Edwardson did. Cooper testified he did not ask further about Fellion's qualifications; however, he does know Fellion, and is familiar with the work of her Evidence Clerk position. Parker did tell Cooper of Edwardson's qualifications which Parker learned from Edwardson's resume. Those qualifications include a bachelor's degree in Management and Communications and an associate's degree in Applied Science and Supervisory Management, 21 years with a company where she started as a keypunch operator/data entry operator, spent 14 years as the lead mainframe computer operator during which she scheduled and supervised computer processing, trained operators and assisted programming staff in implementing new processes; staff accountant for little more than a year and as a customer support specialist for two years while working on her bachelor's degree. From 1997 to 1998 Edwardson was Operations Coordinator in another company's information technology department and for one and one-half years had been employed in the City's MIS department as a computer operator and PC Support Technician.

When Fellion was not awarded the Public Safety Technician position, a grievance was timely filed. The parties atttempted to resolve their dispute through the grievance procedure, but were unable to do so and proceeded to arbitration before the undersigned.



The Union offers several reasons why the Grievant should have been awarded the Public Safety Technician position. She was the senior bidder and the Agreement recognizes the principle of seniority in the selection process (Article XII, Section B, Article XIII, Section B). The Union notes that the position in question requires an individual who would participate in the new Law Enforcement Automation Project (LEAP), and that both the program and the position are new. The Union asserts that the Grievant, Kelly Fellion, reviewed the essential duties of the posted position and gave detailed responses with regard to those functions. Fellion testified that she had participated in the selection of software and hardware, had met with various vendors when equipment was purchased and was asked to attend the meetings with the vendors by her supervisor's supervisor, Captain Cooper. She testified that her current duties include interfacing with the City and County MIS departments, which is identified as an

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essential duty of the new position. She testified that she had trained co-workers, albeit informally. One of those co-workers, Tammie McWhorter, testified that Fellion had been able to explain the workings of new software programs after the school she was sent to by the City failed to do so. Fellion also testified that she is proficient in the use of Microsoft Windows 95 and Microsoft Office Products and she indicated a willingness to attend "train-the-trainer" classes involving the LEAP software program. Specifically, with regard to the minimum requirements for the position, Fellion testified that she is a high school graduate, but does not have an Associate or a Bachelor's degree. While either is listed as a preference, it is not a requirement of the position. With regard to the necessary experience for the position, Fellion proffered a copy of her resume. She expected an interview for the position and intended to supply the City with a resume at the time, however, she was never given an interview, nor was any kind of objective test administered to explore her qualifications. Fellion testified as to her post-high school education in the area of computer-related technology. Her transcript from Gateway Technical College indicates five computer-related courses she had completed: Excel Spreadsheets, Microsoft Word for Windows (two separate courses), Windows 95, Microcomputer Operations. Those courses were completed before the posting of this position and the record indicates the City was aware of the courses and in some cases had paid for them. The Microcomputer Operating Systems course included the operation of a UNIX system, one of the minimum requirements for the position. Fellion also revealed that she had graduated with a word processing certificate from MBPI, as well as possessing a certificate of graduation from a WordPerfect seminar, all of which the City was aware.

The record also indicates that the Racine County District Attorney's office authorized the City to purchase computer equipment with monies held by the City from old drug cases after receiving a letter authored by Fellion. Fellion was involved in the selection process of the hardware and software that was eventually purchased.

With regard to a minimum of three years computer experience, Fellion testified that she has had at least five years of software and hardware solutions based on computer classes she had attended and work she had performed in the Department for a number of years, as well as the assistance she has given co-workers. Fellion helped to develop specifications for various equipment and had been involved in the purchase of computer hardware. She gave examples of her knowledge of multiple network topologies, as well as computer protocols. Fellion testified that this knowledge spanned her total length of employment with the City. With regard to other minimum requirements, Fellion testified that her position in the Department requires integrity, such as is necessary to administer the LEAP program, and she articulated her oral and written communication skills.

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The Union concludes that Fellion met the minimum requirements of the job, but questions how the City would know that, since they never interviewed her for the position. In order to justify its inaction, the City argued that Fellion had previously disqualified herself from consideration of other positions in the past. However, there is a dispute over which position she had previously withdrawn from, i.e., PC Support Technician or Help Desk Technician/Computer Operator. Regardless, the minimum qualifications for those positions differ from the minimum qualifications of the position in dispute. While Fellion conceded she did not meet the minimum requirements of the PC Support Technician position at the time it was posted, she did not then know MS-DOS, she offered proof that she had subsequently obtained the proper knowledge by the time this position was posted. Further, MS-DOS is not a requirement of the disputed position and is irrelevant. Similarly, the Help Desk Technician position required 24 credit hours in Computer Science, and while Fellion testified she did not meet that requirement and withdrew from consideration for the position for that reason, that requirement is not present in the Public Safety Technician position and, therefore, is also irrelevant.

Further, by her own choice, Fellion never interviewed for either of the two previously-posted positions. Since Fellion was not interviewed for any of the three computer-related jobs, the Union questions how the City could pretend to know her qualifications. The two management figures involved in the hiring process for the Public Safety Technician position were Parker and Captain Cooper. Parker admitted he did not have complete knowledge of the job and both he and Cooper admitted that the decision was made to hire the other individual without having interviewed her for the job. Cooper admitted he had not even seen her resume. The decision to hire the other individual was made without giving Fellion the opportunity to articulate her qualifications.

The Union concludes that Fellion met the minimum qualifications of the job, although she was never given an opportunity to demonstrate such. Thus, the City violated the Agreement when it failed to award the Public Safety Technician position to Fellion. As a remedy, the Union requests that Fellion be awarded the position, and be made whole for any lost wages and benefits retroactive to the day the position was filled.


The City notes that Fellion holds the position of Evidence Clerk and that the main duties of that position are receiving, maintaining and giving out evidence maintained by the Police Department. With regard to the LEAP project, the City notes that it received a federal grant to implement the project in 1997, and the project involved getting various law enforcement agencies and fire departments in Racine County to share information through a common computer system and software program. The specifications for the project were developed by Captain Cooper, the Racine County MIS Director, and the City's MIS Director.

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After funding for the project was obtained, it moved quickly into the implementation stage and the City was faced with the need to create a new position in the Police Department of Public Safety Technician. The job description for the position was developed by Captain Cooper and Parker in late 1998, with the complex and expensive nature of the LEAP project in mind. The position description was written with the primary concern and criteria that the individual filling the position should have the experience and expertise necessary to start the job without any on-the-job training, as it was necessary that the person selected possess the experience and expertise from the very beginning as there was no one on board to train that individual.

The City notes that there are several positions that are geared to computer-trained individuals, beginning with positions requiring minimal knowledge (e.g. Help Desk Technician) and those requiring someone who is highly knowledgeable and experienced (e.g. PC Support Technician or Public Safety Technician). The City asserts that in the Fall of 1998, Fellion applied for, and was interviewed by Parker for, the PC Support Technician position, however, she did not provide a resume at the time, nor did she provide one when she signed for the present position. When the Grievant appeared for the PC Support Technician interview, she apologized for wasting their time and stated that she was not qualified for the job. The County asserts that the qualifications for the Public Safety Technician position and those for the PC Support Technician position are very similar, as is reflected by the job descriptions and their same pay grade of SU-13.

The City asserts that Fellion did not meet or possess the minimum qualifications for the Public Safety Technician position. The position requires a minimum of three years' experience in PC software and hardware solutions and this means more than working as an Evidence Clerk and answering questions from co-workers about the computer. Fellion herself recognized she did not have the minimum qualifications for the PC Support Technician position when she removed herself from consideration and that position is very similar to this position with regard to level of minimum expertise, experience and qualifications required. Further, Fellion has never held any computer-related position that would have given her the experience she needed for this position. It is undisputed that the Public Safety Technician and the PC Support Technician positions are at the highest level of expertise and experience in the City's computer-related positions, as evidenced by their SU-13 pay classification, and each similarly require experience and extensive knowledge of computer software and hardware applications. The City asserts that the progression and the level of experience and knowledge required from the Help Desk Technician position to the Public Safety Technician position is evidenced by the corresponding increase in the hourly rate of pay.

Fellion's resume is devoid of any experience necessary for the position as described by Captain Cooper and Parker. Further, the resume was never submitted for consideration for either the prior position or this position. The City also asserts that the successful candidate had all of the required experience and technical expertise required in the job description. The City

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asserts it is not possible to obtain the computer-based experience and training capability necessary simply as a by-product of performing work that merely uses a computer as a record-keeping tool or as a word processor. Further, Fellion failed to produce any evidence of prior experience in developing or evaluating specifications for the LEAP software and hardware. While she sat in on the vendor presentations, as did McWhorter, they were invited along with other Department employes to discuss the specifics of their duties. They were given the opportunity to offer information to the vendor on what an evidence custodian's functions were, and how a bar coding system would be helpful in recording evidence.

The City concludes that the Union failed to show how Fellion could gain the required experience when her job as Evidence Clerk did not provide the necessary experience and formal training of other individuals or even involve the computer as the center of her responsibilities. It is the City's position that the skill and ability factor should be taken into consideration because they substantially outweigh considerations of length of service, since Fellion does not possess the required training or job experience. The City therefore requests that the grievance be denied.


The parties have stipulated that the primary issue in this case is whether or not the Grievant, Kelly Fellion, met the minimum qualifications for the position of Public Safety Technician. For the following reasons, it is concluded that she did not.

The Grievant asserts that she has experience training others on computers, that she has been involved in designing the specifications for computer hardware and software to be purchased, has acted as a liaison with other agencies and has successfully completed computer-related coursework, including 25 credits toward a Network Specialist degree.

With regard to the Grievant's experience training others, the record indicates that for the most part this involved her helping co-workers or her supervisor with questions they had, such as how to perform an operation with the software or how to bring up a form to be used. While providing such assistance to co-workers is a valuable asset to an employer, it is the sort of thing that occurs everyday in most offices where one individual is more adept at utilizing the software or hardware, and is not tantamount to having the experience and responsibility of training groups or individual employes in the operations of the software or hardware.

As to Fellion's involvement in developing specifications for computer hardware and software, it appears from the record that she had some involvement in selecting the amount of memory in the computer and the type of printer and scanner they wanted in her area, and that the request was then submitted. She was also asked by Captain Cooper, as were McWhorter

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and other employes of the Police Department's Administrative Division, to attend a meeting with a vendor. The testimony of both Fellion and Cooper was that she attended the meeting, as did the other employes, so that she could explain to the vendor what her job functions are so that it could be determined what the software would need to be able to do in order for the work to be performed more efficiently. Fellion conceded she was not involved in the decisions as to what software or hardware would be purchased (Tr. 37-38). Fellion's testimony with regard to her experience as being a liaison, was that she at times contacted her counterpart at the County or persons in the District Attorney's office or the Jail to obtain or share information.

While Fellion has completed some formal post-high school courses in the field of computer-related technology, she had not yet obtained a degree, albeit a degree was preferred, rather than required. However, although Fellion testified she had five years of experience in PC hardware and software solutions, her testimony in support of that claim only referenced the computer-related courses she has taken and her having "worked on computers" since before she started in the Police Department. Similarly, other than stating that she has knowledge of "multiple network topologies" and identifying the networks and topologies the City and County use, Fellion offered no further evidence of her experience or knowledge beyond what she had already provided with regard to her having assisted co-workers with problems they were having on their computers and the preliminary coursework she had completed.

Simply put, Fellion's knowledge and experience with regard to computers, although of value to the City and her co-workers, does not meet the requirements for the Public Safety Technician position that would enable her to carry out that position's essential duties. Therefore, it is concluded that the Grievant did not meet the minimum qualifications of the position.

Based upon the foregoing, the evidence, and the arguments of the parties, the undersigned makes and issues the following


The grievance is denied.

Dated at Madison, Wisconsin this 14th day of September, 2000.

William C. Houlihan, Arbitrator