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STATE OF WISCONSIN

BEFORE THE WISCONSIN EMPLOYMENT RELATIONS COMMISSION

LISA GRIBBLE, Complainant,

vs.

FLORENCE COUNTY, WISCONSIN and

LABOR ASSOCIATION OF WISCONSIN, INC., Respondents.

Case 55

No. 66969

MP-4344

Decision No. 32435-F

Appearances:

Jonathan Swain, Lindner & Marsack, S.C., 411 East Wisconsin Avenue, Suite 1800, Milwaukee, Wisconsin 53202, appearing on behalf of Florence County.

Linda Vanden Heuvel, Vanden Heuvel & Dineen, W175 N11086 Stonewood Drive, P.O. Box 550, Germantown, Wisconsin 53022-0550, appearing on behalf of Labor Association of Wisconsin, Inc. (LAW).

ORDER ONF REVIEW OF EXAMINER'S DECISION

On August 11, 2010, Examiner Raleigh Jones issued Findings of Fact, Conclusions of Law and Order in the above matter, wherein he concluded that Respondent Labor Association of Wisconsin, Inc. (LAW) had not breached its duty of fair representation to Complainant Lisa Gribble and thus had not committed a prohibited practice within the meaning of Sec. 111.70(3)(b) 1, Stats. Based on said conclusion, Examiner Jones further determined that he would not exercise jurisdiction over Gribble's allegation that Respondent Florence County and/or Respondent LAW had violated a collective bargaining agreement and thus had committed a prohibited practice within the meaning of Sec. 111.70(3)(a) 5, Stats.

No. 32435-F

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Dec. No. 32435-F

On August 31, 2010, Gribble timely filed a petition with the Wisconsin Employment Relations Commission seeking review of the Examiner's decision pursuant to Secs. 111.70(4)(a) and 111.07(5), Stats. The parties thereafter filed written argument in support of and in opposition to the petition-the last of which was received November 12, 2010.

Having reviewed the record and being fully advised in the premises, the Commission makes and issues the following

ORDER

A. Examiner Findings of Fact 1 and 2 are affirmed.

B. Examiner Findings of Fact 3-29 are set aside and the following Findings are made:

3. At all times material herein, Labor Association of Wisconsin, Inc. (LAW), was a labor organization serving as the exclusive collective bargaining representative of certain County employees including Gribble. From April, 2002 to January 1, 2007, Gribble worked at least 35 hours per week as Deputy County Treasurer (three days a week) and Property Listing Assistant (2 days a week).

4. The County and LAW were parties to a 2006-2008 collective bargaining agreement that contained the following provisions

ARTICLE IV-SENIORITY

. . .

Section 4.02: Layoffs and recall from layoff will be determined on the basis of seniority, provided the senior employee can qualify to do the work. Layoff shall be by inverse order of seniority.

. . .

ARTICLE XV- GRIEVANCE PROCEDURE

Section 15.01: Should any differences arise between the Employer and the Association as to the meaning and application of this Agreement, or as to any questions relating to wages, hours and conditions of employment, failure to negotiate in good faith, or discipline, they shall be settled under the provisions of this Article.

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. . .

Section 15.03: The Association and the Employer agree that all grievances should be settled at the earliest possible time, therefore, all grievances shall be processed in the following manner:

Step 1: The aggrieved employee, or the Association shall present the grievance in writing to the Department Head within twenty (20) days of knowledge of the incident, or the date of the incident. The Department Head shall give a written answer to the grievance within seven (7) days of receipt of the written grievance.

Step 2: If satisfactory settlement is not reached in Step 1 within seven (7) days of receipt of the written response of the Department Head, the grievant or the Association shall present the grievance in writing to the Personnel Committee within seven (7) days.

. . .

Step 3: If satisfactory settlement is not reached in Step 2, within seven (7) days of receipt of the written response of the Personnel Committee, either party may request the Wisconsin Employment Relations Commission (WERC) appoint a panel of five (5) arbitrators.

. . .

APPENDIX A

POSITION HOURS

. . .

Deputy Treasurer, Property Lister, FT

Assessment/Tax Roll Clerk

5. On December 14, 2006, County Treasurer Friberg advised Gribble that her duties as Deputy County Treasurer would end effective January 1, 2007, but that she would continue to perform Property Listing Assistant duties. Gribble subsequently contacted LAW representative Bauer who advised her the LAW would investigate the matter. Based on its

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investigation, LAW concluded that the 2006-2008 contract would not be violated by the County Treasurer's action, because the Treasurer had the statutory power to select the Deputy County Treasurer of her choosing.

6. On January 19, 2007, Gribble filed a grievance with County Treasurer Friberg stating in pertinent part that the County had violated the 2006-2008 contract by "unilaterally reducing Ms. Gribble's hours of work. Effective January 1, 2007, Gribble's hours have been reduced from full-time to part-time. Gribble's job duties have also been reduced." The grievance cited Article XI (Hours of Work) and Article XVII (Discipline) as the portions of the contract allegedly violated and as to remedy stated that "Gribble demands that her hours and job duties be reinstated and that she is made whole for any and all violations of the Agreement."

7. On January 26, 2007, County Treasurer Friberg responded to Gribble's grievance as follows:

Item #1 ­ I disagree with the allegation that I violated the Florence County Courthouse Employees Association union contract. Ms. Gribble has never held a full-time position in the County Treasurer's office; she held 2 different part-time positions. She was appointed to the deputy treasurer position; the job posting listed a minimum of 2 days a week and a maximum of 3 days a week. She was then hired to the property listing assistant position for 2 days a week. Article XI of the contract states "Regular part-time employees will work the hours and days assigned to them."

Further note: during 2006, Ms. Gribble did not work full-time hours; she chose to take several days off without pay.

Item #2 ­ Wisconsin State Statute 59.25 governs the County Treasurer's office, and it states that "the treasurer shall appoint one deputy to aid the treasurer, under the treasurer's direction, in the discharge of the duties of the office of treasurer." I believe that this not only gives me the right to appoint a person that I choose, but this also gives me the responsibility to appoint a person that will uphold the duties, the responsibilities, and the standards that are required and expected in the County Treasurer's office.

Further note: During 2006, Ms. Gribble approached her union representatives on several occasions with her opinion that the deputy treasurer was not responsible for keeping the office open

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when the County Treasurer was away from the office. Although the union representatives informed her that she was wrong in her opinion, she persisted with that opinion. Therefore, I have interpreted her opinion to mean that she is no longer willing to be held responsible "in the discharge of the duties of the office of treasurer"; therefore, I did not appoint Ms. Gribble to the deputy treasurer position for the 2007-2008 term.

8. The County subsequently asked LAW for a position as to the Gribble grievance. LAW representative Bauer responded to that inquiry through the following letter dated February 27, 2007:

Per your inquiry regarding the matter of the pending grievance filed by Ms. Lisa Gribble, the Association is not supporting this grievance for the following reasons:

1. Ms. Gribble held a position consisting of two designations: Deputy County Treasurer and Property Listing Assistant. These positions were designated by the County as two separate part-time positions, but were consolidated to create a full-time position as designated in the Wage Schedule as a full-time position. The full-time designation was affected by the removal of Ms. Gribble from the Deputy County Treasurer position in January, 2007, leaving Ms. Gribble in a part-time job which she has continued to be employed in.

2. Section 17.10(6), Wis. Stats., Removal of appointive county officers, sets forth in pertinent part that " . . .appointive county officers may be removed at pleasure by the officer or body that appointed them." (Emphasis added) Ms. Gribble was so removed and another employee was appointed to the Deputy County Treasurer position leaving Ms. Gribble in the position of Property Listing Assistant, a part-time position.

3. Finally, there is no layoff impact since Ms. Gribble continues to be employed in the part-time position of Property Listing Assistant that she originally bid for.

9. By letter dated March 6, 2007, the County's attorney advised Friberg and Gribble as follows:

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Please be advised that after deliberation with respect to the grievance presentations of March 1, 2007, the Personnel Committee authorized me to advise that it decided to deny the grievance on the basis that no contractual provision appears to have been violated in the actions taken to date. It would appear the elected official exercised statutory authority as to the deputy treasurer position, and the other part-time position has remained status quo. Enclosed is a copy of a letter setting forth the position of the bargaining unit representative, Tom Bauer of LAW, with respect to this matter. Inasmuch as the Association, which is party to this contract, does not contend a collective bargaining violation exists, the Committee finds no issue which would require Committee action.

As there is a continuing working relationship with respect to the non-statutory part-time position in which Ms. Gribble continues to work, the Committee encourages both of you to make every effort to work together in a cooperative fashion going forward.

10. By letter dated March 16, 2007, LAW representative Bauer sent the following letter to Gribble:

I am in receipt of a letter, dated March 13, 2007 advising that you, through your attorney, have requested to process your grievance regarding your revocation of the deputy clerk treasurer position to arbitration.

Previously when we discussed the revocation of your deputy clerk treasurer position by the Florence County Treasurer you did not discuss or advise that you wanted to file a grievance in this matter. It is my understanding that you filed a written grievance on January 19, 2007, and did not provide a copy to the undersigned or to Association President Matt Dagostino.

The Labor Association of Wisconsin, Inc. is the sole and exclusive bargaining representative for the Florence County Courthouse Employees' Association of which you are a member. LAW, Inc. is more than willing to discuss the merits of your grievance and process it through the grievance procedure up to and including arbitration; provided that the grievance has merit and the backing of the Florence County Courthouse Employees' Association. [See Article XV ­ Grievance Procedure,

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Section 15.01 and Section 15.04, which provides that only the Association or the County may proceed to arbitration.]

Additionally, you should be aware of the fact that LAW, Inc. will only pay for attorneys that have been authorized by LAW, Inc. Should you process the grievance using an attorney not authorized by LAW, Inc., you will be responsible for any costs and fees incurred.

Accordingly, please contact me as soon as possible to discuss the facts surrounding this matter. Should you have any questions please feel free to contact the undersigned at (920) 738-0668.

Gribble did not respond to Bauer's March 16, 2007 letter and filed the instant complaint on May 11, 2007.

C. The Examiner's Conclusions of Law are set aside and the following Conclusions of Law are made:

1. Unless the Labor Association of Wisconsin, Inc. breached its duty of fair representation to Lisa Gribble as to her January 19, 2007 grievance, the grievance arbitration procedure contained in the collective bargaining agreement between the Labor Association of Wisconsin, Inc. and Florence County is the exclusive means by which alleged violations of that agreement can be litigated.

2. The Labor Association of Wisconsin, Inc. did not breach its duty of fair representation to Lisa Gribble as to her January 19, 2007 grievance and thus did not commit a prohibited practice within the meaning of Sec. 111.70(3)(b) 1, Stats.

.

3. Because the Labor Association of Wisconsin, Inc. did not breach its duty of fair representation to Lisa Gribble as to her January 19, 2007 grievance, the grievance arbitration procedure contained in the collective bargaining agreement between the Labor Association of Wisconsin, Inc. and Florence County is the exclusive means by which alleged violations of that agreement can be litigated. Therefore, the Wisconsin Employment Relations Commission will not assert its jurisdiction to determine whether Florence County violated a collective bargaining agreement and thereby committed a prohibited practice within the meaning of Sec. 111.70 (3)(a) 5, Stats.

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D. The Examiner's Order dismissing the complaint is affirmed.

Given under our hands and seal at the City of Madison, Wisconsin, this 19th day of April, 2011.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Judith Neumann, Chair

Susann J. M. Bauman, Commissioner

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FLORENCE COUNTY, WISCONSIN (Lisa Gribble)

MEMORANDUM ACCOMPANYING ORDER

ONF REVIEW OF EXAMINER'S DECISION

In her amended complaint, as clarified at hearing and through her post-hearing argument, Gribble contends that Respondent LAW breached its duty of fair representation by failing to arbitrate her contractual grievance over her reduction in work hours and that Respondent Florence County violated the bargaining agreement between LAW and the County by said reduction. The Examiner concluded that Respondent LAW had not breached its duty of fair representation and declined to exercise jurisdiction over the allegation that Respondent County violated the bargaining agreement. Gribble asserts the Examiner erred. We conclude otherwise and have affirmed the Examiner.

Applicable Law

Section 111.70 (3)(a) 5, Stats., provides that is an prohibited practice for a municipal employer (such as the County) to violate a collective bargaining agreement. However, where, as here, the collective bargaining agreements in question contain final and binding impartial grievance arbitration procedures, the Commission will not asserts its jurisdiction over Sec. 111.70(3)(a)5 claims (or the counterpart provisions found in Sec. 111.06(1)(f) of the Wisconsin Employment Peace Act and Sec. 111.84(1)(e) of the State Employment Labor Relations Act) because those procedures are presumed to be the exclusive means by which alleged violations of those agreements can be resolved. Mahnke v. WERC, 66 Wis. 2d 524 (1974); Racine Educ. Ass'n. v. Racine Unified School District., 176 Wis. 2d 273 (Ct. App. 1993); Gray v. Marinette County, 200 Wis. 2d 426 (Ct. App. 1996); United States Motor Corp., Dec. No. 2067-A (WERB, 5/49); Harnischfeger Corp., Dec. No. 3899-B (WERB, 5/55); Melrose-Mindoro Joint School District No. 2, Dec. No. 11627 (WERC, 2/73); City of Menasha, Dec. No. 13283-A (WERC, 2/77); Monona Grove School District, Dec. No. 22414 (WERC, 3/85). However, if an employee covered by such a collective bargaining agreement can prove that his collective bargaining representative failed to fairly represent him by illegally thwarting his efforts to arbitrate a grievance over an alleged violation of the agreement, then there is a sound policy basis which overcomes the presumed exclusivity of the grievance arbitration procedure and the Commission will assert its prohibited practice/unfair labor practice jurisdiction to determine whether the agreement has been violated. Mahnke, supra., Gray, supra., Milwaukee Board of School Directors, Dec. No. 31602-C (WERC, 1/07).

As reflected in Finding of Fact 4 and Conclusion of Law 1, the record here satisfies us that the grievance arbitration clause in the bargaining agreement between LAW and the County is the exclusive means by which the merits of Gribble's contractual claims can be resolved, unless Gribble can prove that LAW breached its duty of fair representation.

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In Gray, supra, a case involving a union that was the collective bargaining representative of municipal employees such as Gribble and thus covered by the Municipal Employment Relations Act, the Wisconsin Court of Appeals adopted and applied the burdens and standards set forth by the Wisconsin Supreme Court in Mahnke, supra (a case involving a private sector employee advancing a Sec. 111.06(1)(f) breach of contract claim under the Wisconsin Employment Peace Act) for determining whether a union has breached its duty of fair representation. Gray and Mahnke establish as a general matter that an employee must prove that the union acted in an arbitrary, discriminatory or bad faith manner to establish a breach of the duty of fair representation.

DISCUSSION

On review, Gribble argues that LAW's conduct was arbitrary and thus breached the duty of fair representation. Gribble's primary contention in this regard is that LAW did not investigate her claim that the reduction from full-time to part-time status violated the 2006-2008 collective bargaining agreement. It is undisputed that in December 2006, Gribble advised LAW representative Bauer that her hours were going to be reduced effective January 1, 2007; that Gribble filed a grievance on January 19, 2007 regarding said reduction; and that by letter dated February 27, 2007, LAW stated its position as to the merits of the Gribble grievance. To formulate the content of its February 27 letter (set forth in pertinent part in Finding of Fact 8) LAW would of necessity have had to investigate Gribble's grievance. The content of the February 27 letter also provides corroboration of the testimony of Bauer and Coraggio as to the steps they took to investigate the matter. (1)

Thus, we reject the contention that LAW failed to investigate Gribble's claim/grievance.

Gribble's second argument on review is that LAW breached the duty of fair representation by failing to have the Board of Directors vote on whether to arbitrate her grievance. LAW and the County note that Gribble did not respond to Bauer's March 16, 2007 letter, which potentially left the arbitration door ajar, and thus contend that Gribble's argument should be rejected on that basis. However, we think it apparent that by that juncture LAW knew Gribble wanted to have her grievance arbitrated and in fact had decided that it would not arbitrate the Gribble grievance because, despite its obvious impact on Gribble, LAW had

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concluded in good faith that the grievance lacked merit.(2)

Thus, further dialogue at that juncture would have been futile, and the absence of a Gribble response to Bauer's March 16, 2007 invitation for further conversation does not provide a satisfactory basis for rejecting this Gribble argument. The record does contain testimony from Bauer indicating that the Board of Directors would have to approve taking a matter to arbitration. However, taking a matter to arbitration involves expenditure of resources; it is not clear from Bauer's testimony, nor does the record contain the organization bylaws or other document upon which Bauer's assertion was based, that Board action would also be required in order to reject arbitration. Thus, Gribble has not established that LAW had the organizational obligation she asserts it failed to meet, and therefore we reject her second argument. (3)

Given all of the foregoing, we have affirmed the Examiner's conclusion that LAW did not breach its duty of fair representation as to Gribble and that jurisdiction will not be exercised over the claim that the County's action violated a collective bargaining agreement. Thus, we have also affirmed dismissal of the complaint against both LAW and the County. (4)

Dated at Madison, Wisconsin, this 19th day of April, 2011.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Judith Neumann, Chair

Susan J. M. Bauman, Commissioner

1 Contrary to Gribble's arguments on review citing Coraggio's testimony regarding contact with his mother-in-law as evidence of a less than good faith investigation, said contact is consistent with a good faith investigation because the mother-in-law had been a county treasurer and thus would be familiar with the statutory contention cited by Friberg as the basis for her action vis-à-vis Gribble.

On review, Gribble does not cite LAW's conduct as to a 2006 Gribble grievance as support for a contention that LAW's response to the 2007 Gribble grievance breached the duty of fair representation. Had Gribble done so, we would have rejected said argument because the record evidence as to the 2006 matter does establish a lack of effort or hostility by LAW toward Gribble.

2 LAW's obvious awareness of the impact of the County's action on Gribble and good faith assessment of the merits of her grievance were consistent with its obligations under Mahnke, supra when deciding whether to arbitrate a grievance.

3 By doing so, we need not and do not decide whether failure to meet any such organizational obligation would have breached the duty of fair representation.

4 Based on our analysis, we concluded it was appropriate to modify the Examiner's Findings of Fact by deleting unnecessary detail and thus making them more "ultimate." We also eliminated the Examiner's findings that there was no "bumping" language in the 2006-2008 contract and that Gribble held two part-time positions. While the good faith nature of LAW's conclusion as to "bumping" and "two part-time jobs" issues is relevant to the duty of fair representation issue (although we note Gribble's contractual grievance does not directly raise any bumping issue) , no determination as to the merits of those contractual issues is needed where, as here, we are not asserting jurisdiction over any contractual claim.

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32435-F