EAU CLAIRE COUNTY,
GENERAL TEAMSTERS UNION
LOCAL NO. 662,
TO: Atty. Kristine Aubin
Previant Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.
P.O. Box 12993, Milwaukee, WI 53212
Asst. Atty. Gen. John D. Niemisto
P.O. Box 7857, Madison, WI 53707-7857
PLEASE TAKE NOTICE that judgment in this action was entered on October 1,
1998. A copy of
the judgment is attached.
Dated at Eau Claire, Wisconsin this 6th day of October, 1998.
EAU CLAIRE COUNTY CORPORTATION COUNSEL:
Attorney for Plaintiff Eau Claire County
Keith R. Zehms, Corporation Counsel
Courthouse, 721 Oxford Avenue
Eau Claire, WI 54703
State Bar No. 1003778
EAU CLAIRE COUNTY,
GENERAL TEAMSTERS UNION
LOCAL NO. 662
WISCONSIN EMPLOYMENT RELATIONS COMMISSION,
FINDINGS OF FACT
CONCLUSIONS OF LAW
JUDGMENT AND ORDER
FINDINGS OF FACT
The facts are stipulated between the parties and are so found as follows:
1. The plaintiff, Eau Claire County (hereinafter 'County'), is a quasi-municipal
duly organized under the laws of Wisconsin, with it principal offices located in the County
courthouse, 721 Oxford Avenue, Eau Claire, Wisconsin, 54703.
2. The defendant, General Teamsters Union Local No. 662 (hereinafter
'Teamsters'), is a
union affiliated with Wisconsin Teamsters Joint Council No. 39, Central States Drivers
is the exclusive bargaining agent for non-supervisory deputy sheriffs in the Eau Claire
Sheriff's Department. Teamsters maintains its principal offices at 119 West Madison Street,
Claire, Wisconsin, 54702-0086.
3. The defendant, Wisconsin Employment Relations Commissioner (hereinafter
is an agency of the state of Wisconsin responsible for administering and enforcing the
Employment Relations Act under the Collective Bargaining Agreement between the County
Teamsters Local No. 662. Appointing a staff member as arbitrator is the final step of the
4. Michael Thomas is the Business Agent for the General Teamsters Union Local
5. The Collective Bargaining Agreement between the County and the Teamsters,
per Wis. Stat. §111.70, includes at Article 4 the disciplinary procedure which requires
just cause for
discharge. It also sets forth the procedure and time frame within which written appeals from
discharge are to be handled. Article 5 incorporates four steps in the grievance process
arbitration as the fourth step.
6. In 1994, the County established a civil service system under Wis. Stat.
codified at Chapter 3.51 of the County Code. The civil service ordinance has remained in
effect continuously since that time.
7. John R. Rizzo was employed as a deputy sheriff in the Eau Claire County
Department from February 18, 1977 to November 5, 1996 when he was terminated by
The termination was based on the Findings of Fact and Decision dated November 4, 1996,
the Committee on Personnel acting as the Civil Service Commissioner under Wis. Stat.
§59.07(20)(b), which provided:
"A law enforcement employee of the county may not be suspended, demoted,
dismissed or suspended and demoted by the civil service commission or by the board,
based either on its own investigation or on charges filed by the sheriff, unless the
commission or board determines whether there is just cause, as described in this
paragraph, to sustain the charges. In making its determination, the commission or
the board shall apply the following standards, to the extent applicable:
1. Whether the employee could reasonably be expected to have had
knowledge of the probable consequences of his or her alleged conduct.
2. Whether the rule or order that the employee allegedly
3. Whether the sheriff, before filing a charge against the
made a reasonable effort to discover whether the employee did in fact violate a rule
4. Whether the effort described under subd.3. was fair and
5. Whether the sheriff discovered substantial evidence that
violated the rule or order as described in the charges filed against the employee.
6. Whether the sheriff is applying the rule or order fairly
discrimination to the employee.
7. Whether the proposed discipline reasonably relates to the
of the alleged violation and to the employ's record of service with the sheriff's
8. John R. Rizzo was notified, in an October 11, 1996 letter from the sheriff,
that the sheriff
had requested a hearing before the Committee on Personnel and the Sheriff would
Rizzo's employment be terminated.
9. The date and time of the hearing was confirmed by Personnel Committee
Barry Robinson in an October 11, 1996 letter to John R. Rizzo.
10. In a letter dated October 28, 1996 from Teamsters Secretary-Treasurer James
the Teamsters confirmed their appearance at the October 30, 1996 hearing.
11. The Disciplinary Proceedings were held on October 30, 1996, beginning at
1:15 p.m. and
ending at 7:32 p.m. Keith R. Zehms, Corporation Counsel, appeared on behalf of Eau
and James Newell, General Teamsters Local 662 appeared on behalf of John Rizzo. Six
testified and all were sworn. Witnesses were examined on direct
and cross examination, and all testimony was transcribed. Objections were allowed
and ruled on by
the Presiding Officer. Twenty-three (23) exhibits were received into evidence.
12. In a November 5, 1996 letter from the County, John R. Rizzo and Teamsters
of his statutory appeal rights to circuit court.
13. No appeal to circuit court was ever taken.
14. On November 15, 1996, John R. Rizzo filed a grievance with the sheriff and
director for being "discharged without just cause" as required by the
15. On November 18, 1996, Sheriff Hewitt denied the grievance.
16. In a November 29, 1996 letter, the County informed John R. Rizzo and
"the Union or Grievant cannot go through the statutory hearing under Section
and then if not happy with the result proceed with the grievance to arbitration." The
continued to rely on the City of Janesville case as referenced in a prior February
7, 1996 letter to
Teamsters and concluded the grievance was not arbitrable.
17. The Committee on Personnel never met to consider the grievance.
18. On February 11, 1997, Teamsters filed a complaint with the WERC, Case 192
MP-3269, alleging the County had committed prohibitive practices within the meaning of the
Municipal Employment Relations Act by refusing to arbitrate the grievance appealing John
19. The WERC is interested in its capacity as the agency responsible for
enforcing municipal employment relations in the state of Wisconsin and more specifically
WERC staff arbitrator is required under Article 6 of the Collective Bargaining Agreement
the County and Teamsters and as the agency having jurisdiction of the prohibitive practices
filed by Teamsters.
20. Teamsters Local 662 is interested in its capacity as a party to the Collective
Agreement and as Collective Bargaining Representative for non-supervisory deputy sheriffs
Eau Claire County Sheriff's Department.
The Court further finds that Article 6, Section 6.04 of the collective bargaining
provides in relevant part, "The arbitrator shall take such evidence as, in his judgment, is
for the disposition of the dispute. The arbitrator shall proceed, in accordance with this
determine the merits of the dispute submitted to arbitration."
Is a deputy sheriff's sole and exclusive remedy, following an adverse decision of the
on Personnel acting as the Civil Service Commission, review by the circuit court pursuant to
CONCLUSION OF LAW AND JUDGMENT
Under the statutory scheme, the Committee on Personnel, acting as the Civil Service
Commission, is the finder of fact. Once the matter is submitted to arbitration, the arbitrator
the fact finder. A trial de novo to an arbitrator nullifies and renders meaningless the findings
and thus, the hearing before the Commission. Accordingly, such provisions are not capable
harmonization with the statutory scheme. Therefore, the arbitration provision is invalid and
permanent injunction is appropriate.
The provisions of statute and the collective bargaining agreement must be harmonized
whenever possible. Glendale Professional Policeman's Association vs.
Glendale, 83 Wis.2d 90 (1978)
"The law of Wisconsin favors agreements to resolve municipal labor disputes by final and
arbitration." 108 Wis.2d 167, 172, 321 N.W.2d 224 (1982) quoting Oshkosh vs.
Union Local 796-A,
99 Wis.2d 95, 102-103, 299 N.W.2d 210 (1980).
The defendant argues that the provisions are not in conflict because arbitration merely
the employee the option of either an appeal to circuit court or binding arbitration. However,
"appeal" and "binding arbitration" are incompatible alternatives. An appeal is the review of
made by another decision-maker. With an appeal, conclusions of law may be subject to de
review or afforded some degree of difference. An appeal to the circuit court may result in
being remanded back for further fact-finding by the Commission. The court does not
evidentiary hearing itself, Wis. Stat. §59.21(8)(b)(6). On the other hand, with the
provisions of the collective bargaining agreement, the findings of fact are irrelevant
providing for a
de novo review by the arbitrator. This makes the process before the Commission a nullity.
Under 1993 Senate Bill 66 Substituted Amendment 1, there would have been
an option to
appeal either to an arbitrator or the court. However, in each case, there was not do novo
the facts. Both the court and the arbitrator could remand the matter back to the Commission
Board for further factual finding. However, neither the court nor the arbitrator could
own independent judgment of the findings of fact.
Senate Amendment 1 to 1993 Senate Bill 66 was not adopted as part of the final
What the defendant seeks is for the court to adopt what the legislature has rejected and add
provision for independent de novo fact finding by the arbitrator. Since the arbitration
the collective bargaining agreement would abrogate the authority specifically delegated to the
Commission as a fact finder, then the collective bargaining agreement and the statute cannot
harmonized without nullifying the other. Accordingly, the irreconcilable conflict between the
arbitration provisions of the collective bargaining agreement and the statutes renders the
provisions of the collective bargaining
agreement invalid and void. This decision is consistent with City of Janesville
vs. WERC, 193 Wis.2d
492, 535 N.W.2d 34 (Ct. App. 1995).
THEREFORE IT IS ORDERED, the Wisconsin Employment Relations Commission
enjoined from holding any proceedings on prohibited practices complaint Case 192
No. 54897 MP-3269 pending before it, filed by General Teamsters Union Local No.
662, regarding the Eau Claire
County Sheriff's Department and Deputy John R. Rizzo.
Dated this 1 day of October, 1998.
BY THE COURT:
Paul J. Lenz
Circuit Court Judge, Branch 5
Copies: Attorney Keith R. Zehms
Attorney Kristine Aubin
Attorney John D. Niemisto