BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MANITOWOC COUNTY (SHERIFF'S
WISCONSIN COUNCIL 40, AFSCME,
Mr. Stephen J. Rollins, Corporation Counsel, Manitowoc
County, 1010 South Eighth Street,
Manitowoc, Wisconsin 54220, on behalf of the County.
Mr. Gerald Ugland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O.
Box 370, Manitowoc, Wisconsin 54220-0370, on behalf of the Union.
According to the terms of the 1996-97 collective bargaining agreement between the
Personnel Committee of Manitowoc County Board of Supervisors (hereafter County) and
Manitowoc County Sheriff's Department Employees Local 986-B, AFSCME, AFL-CIO
Union), the parties requested that the Wisconsin Employment Relations Commission
member of its staff to hear and resolve a dispute between them regarding when, if ever,
Saueressig should have been granted regular employe status by the Sheriff's Department.
Commission designated Sharon A. Gallagher to hear and resolve the dispute between the
Hearing was held at Manitowoc, Wisconsin on January 27, 1998. A stenographic transcript
the proceedings was made and received by February 5, 1998. The parties agreed that their
briefs would be postmarked to the arbitrator by March 18, 1998 and that the Arbitrator
thereafter exchange them; the parties reserved the right to file a reply brief within ten (10)
working days after their receipt of the other party's initial brief. All documents in this case
received by April 13, 1998, whereupon the record was closed.
The parties stipulated to the substantive issue in this case, as follows:
Did the Employer violate the collective bargaining
agreement by denying the Grievant,
Nancy Saueressig regular employe status, wages and benefits? If so, what is the appropriate
However, the County argued that a procedural issue should properly be determined
the undersigned could reach the substantive issue. That procedural issue is as follows:
Was the grievance timely filed?
The parties agreed that the Arbitrator should determine the procedural issue first and
if she found the grievance timely, the Arbitrator should then proceed to determine the
substantive issue herein. As I have found the grievance timely filed, I will reach the
substantive issue herein.
ARTICLE I - RECOGNITION AND BARGAINING
The Employer recognizes the Union as the exclusive
bargaining agent for the employes of
the Manitowoc County Sheriff's Department, excluding the positions of Sheriff, Inspector,
Inspectors, Jail Administrator, Chief Investigator, Narcotics Unit Supervisor, Clerical
Coordinator, Food Service Manager, PSJS Administrator, Lieutenants, Sergeants, Sworn
Employees with the power of arrest, and temporary employees.
. . .
ARTICLE VIII - GRIEVANCE PROCEDURE
A. Definition of Grievance: Should any
differences arise between the Employer and
the Union as to the meaning and the application of this Agreement, or as to any
question relating to wages, hours and working conditions, they shall be settled
under the provisions of this Article.
B. Time Limitations: The failure of a party to
appeal a grievance in a timely fashion will be
treated as a settlement to that particular grievance, without prejudice. However, it is not
possible to comply with the time limitation specified in the grievance procedure because
of work schedules, illness, vacations, holidays, any approved leave or time off, these time
limitations may be extended by mutual agreement.
The party who fails to receive a reply in a timely fashion
have the right to
automatically proceed to the next step of the grievance procedure.
C. Steps in Procedure:
Step 1 The employe and one (1) Union steward shall orally
grievances to the
Department Head (Sheriff) or the Sheriff's designee within a reasonable period of
time, but in no event more than thirty (30) calendar days after the Union knew or
should have known of the occurrence of such grievance. . .
. . .
ARTICLE X - DEFINITIONS OF EMPLOYEES
. . .
B. Regular Part-Time: A
regular part-time employe is a person hired to fill a regular part-time position. Regular
part-time employees shall not be used to replace, reduce or
displace regular full-time employment.
. . .
D. Temporary: A
temporary employee is hired for a specified period of time (not to exceed
six months) and who will be separated from the payroll at the end of such period.
Temporary employees receive none of the benefits contained in this Agreement.
Temporary employees shall not be used to replace, reduce or displace regular employment.
The County's Policy Manual indicates that in order to be considered for a regular
bargaining unit opening, individuals must appear on the current eligibility list prior to their
selection for such an opening. However, it is not a requirement for a person being
a temporary job to be on the current clerical eligibility list, although the County has used this
as a resource to find employes for non-regular jobs, including temporary jobs. The County
hired temporary employes off the street without testing in the past. The record shows that
Grievant, Nancy Saueressig, was on the clerical eligibility list at the time she was hired as a
non-sworn reserve deputy in 1995 but that she did not re-take the test in November of 1995,
therefore she did not appear on the current eligibility list dated in November, 1995. 1 Once an
employe has passed the County eligibility tests and has been hired into a regular
bargaining unit position, the collective bargaining agreement applicable to that employe
and the employe then has contractual posting rights which generally override the need for the
employe to remain on the County's current eligibility list. 1
There are approximately five Secretary/Clerical employes and one
employe who occupy bargaining unit positions in the Sheriff's Department. Although the
Secretary/Bookkeeper has her own office, all other unit clerical employes work in the same
are aware of the work that the other employes do, and can see each other during their
as they are seated at desks, and in the same area.
Nancy Saueressig was originally hired as a non-sworn reserve deputy in the Sheriff's
Department on or about May 30, 1995 at a rate of $6.49 per hour. From the end of May,
through December 31, 1995, the Grievant worked a total of 382.5 hours. During this period
time, the Sheriff's Department clerical work calendars indicate that the Grievant regularly
two or three days per week, between 2.5 and 8 hours per day. From January 1, 1996
December 31, 1996, the Grievant worked a total of 349.25 hours for the Sheriff's
again regularly working approximately 2 or 3 days per week, between 3.25 and 6.5 hours
Beginning on January 1, 1997 through March 5, 1997, the Grievant worked 132.5 hours,
3 hours and 8.75 hours per day.
It should be noted that in 1996, the Grievant worked sporadically. For example in
January, 1996, the Grievant did not work two weeks, and then for the next three weeks she
worked only 5 days; in February, she did not work two weeks, and then in the last two
February, 1996 she worked four days; the Grievant worked three days in March, 1996, two
in April, 1996 and did not work at all in May and June and the first two and half weeks of
1996. Beginning in the fourth week of July, 1996, the Grievant began working more days -
between 2 and 3 days per week and sometimes every day in a week. In January, 1997 the
Grievant began working 3 or 4 days per week and sometimes 5 days per week.
Prior to March 5, 1997, the Grievant worked flexible hours on an as-needed basis for
Sheriff's Department. Once a month, Clerical Coordinator Kathy Leist would check the
schedule among her regular bargaining unit employes to see when she would need the
to help with the workload. Thereafter, Leist would check with the Grievant, and then
the Grievant on a separate calendar posted in the Secretary Bookkeeper's office in the
(No bargaining unit employes were scheduled in this manner.) Leist stated that during the
prior to March 5, 1997, the Grievant had no definite hours or days of work as a result of this
Union Steward Kathy Shoulak was aware that the Grievant had worked at the
Department performing clerical duties since 1995. Shoulak stated that she had been told by
management that the Grievant was a non-sworn reserve deputy and therefore Shoulak did not
believe that the Grievant was part of the bargaining unit. Shoulak also stated that she
was told by
Clerical Coordinator Leist that the Grievant's position did not qualify for bargaining unit
and that the Grievant's work hours were limited.
On or about March 6, 1997, Clerical Coordinator Leist announced to bargaining unit
employes that the Grievant was a temporary employe as of that time and that she would
a higher pay rate as a result. At this point, the Grievant began essentially replacing Dawn
who was then on a six-month trial period in the Secretary/Bookkeeper job in the Department.
Thus, the Grievant essentially worked Madsen's prior regular part-time clerical schedule and
was no longer scheduled on the separate calendar maintained in the Secretary/Bookkeeper's
At this time, the County sent through an employe status report for the Grievant which
listed her present salary as $6.94 per hour and showed that it would increase to $10.39 per
upon this status change, and classified her a "temporary secretary/clerk" as of March 6,
This form also showed that the Grievant would be replacing Dawn Madsen as a
As the replacement for Dawn Madsen, the Grievant typed incident reports, assisted
the counter, issued subpoenas, and assisted unit clerical employes with a variety of clerical
The Grievant also did the work of unit employes who were absent or on leave during this
of time. 2
From March 6, 1997 through September 25, 1997, the Grievant worked a total of
hours. The Grievant worked from 8:00 a.m. to 2:00 p.m. five days per week beginning in
third week of March, the same schedule Madsen had worked. 3 Prior to March 6, 1997, Leist
told the Grievant that her new position would be a temporary one, for not more than six
to replace Dawn Madsen while Madsen was on her trial period in the Secretary/Bookkeeper
However, in approximately early June, 1997, Madsen told Leist that she enjoyed her
position and intended to stay in it. At this point, Leist knew that another bargaining unit
Patty Shimek, was due to go on maternity leave in early August, 1997. Leist decided to
with her supervisor and the Personnel Director whether she could retain the Grievant to
Shimek during her pregnancy leave. Management told Leist that if the Sheriff's Department
"show a separation" of the Grievant's employment from the County, the Department could
the Grievant as a temporary to perform Shimek's duties during her maternity leave.
At this point, Leist spoke with the Grievant, explained to her that the County had to
a separation in her employment in order for her to continue working for the County as a
temporary employe to replace Shimek. The Grievant indicated that she wished to go on a
in the middle of June, and the Grievant then agreed to take 10 days of unpaid vacation, from
19 through June 30, 1997, to show the separation from payroll required by the County. The
Grievant stated that she understood that she would have continued regular employment upon
return to the County on July 1, 1997 through the end of Shimek's maternity leave. Leist
that she expected the Grievant to return on July 1, 1997 to begin training on Shimek's job
had made her plans for the office with that expectation in mind.
It is undisputed that the County failed to notify the Union regarding the arrangements
made with the Grievant for her "separation" from payroll. It is also undisputed that the
never offered to pay for the Grievant's June, 1997 vacation. Finally, it should be noted that
although the County has employe status report forms for the other relevant actions it took
regarding the Grievant's employment from her date of hire through her termination on
October 24, 1997, the County produced no form indicating that the Grievant had been
from the payroll in June, 1997.
The Grievant stated that she took the eligibility test for consideration for County
employment in or about November, 1994. At this time, the Grievant stated that she believed
she would be on the eligibility list forever, having taken the necessary tests. However, in
or May, 1997, the Grievant stated that management told her that eligibility tests must be
every two years to remain effective, or the employe must request that their prior scores be
over onto a new list. The Grievant stated that none of this was made clear to her at any time
during her employment until Dawn Madsen's part-time position became open (when Madsen
the Secretary/Bookkeeper position) and it was determined that the Grievant was not on the
eligibility list and apparently could not be considered for that opening. 4
No evidence was submitted to show that anyone had ever been selected for a
unit clerical opening unless they had been on the current eligibility list prior to their
therefor. Indeed, County managers stated and County policy demonstrates that individuals
be selected for unit clerical openings unless their names are on the current eligibility list. On
October 25, 1997, the Grievant's "temporary" position replacing Shimek terminated and an
employe status report issued indicating that the reason for her separation was that her
The grievance in this case was filed on August 29, 1997, prior to the termination of
Grievant's "temporary" position and just prior to the expiration of the six-month period
her employment as a "temporary" employe. On September 26, 1997, the County answered
Union's grievance in relevant part as follows:
. . .
This serves as the Employer's step three response to the
This grievance states that it is filed on behalf of Nancy
Saueressig, a non-represented
temporary employee of the Sheriff's Department. Since Ms. Saueressig is non-represented, a
grievance cannot be filed upon her behalf.
As explained at the step three meeting, Ms. Saueressig
was hired as a non-sworn reserve
deputy on May 24, 1995 and worked in that capacity until March 5, 1997. Ms. Saueressig's
status as a reserve deputy is not unique to Ms. Saueressig. In fact, there is a long standing
practice within the Sheriff's Department of the use of non-sworn reserve deputies, dating
1984. If a grievance were to be filed on the basis of Ms. Saueressig's reserve deputy status,
would not be timely as more than thirty days (in fact, over five months) had elapsed between
time Ms. Saueressig was a reserve deputy and the date of this grievance.
Ms. Saueressig had a change of status effective March 6,
1997 to a temporary secretary
clerk. At that time she began temporarily filling the position vacated by Dawn Madsen. She
continued in this temporary status until she was separated from the payroll on June 19, 1997,
went on an unpaid leave of absence. Ms. Saueressig was activated on the payroll on June
1997, and began training to fill a new temporary assignment as a temporary replacement for
Shimek who began a twelve week Family and Medical Leave on August 4, 1997. The
bargaining agreement allows the use of temporary employees, but states "A temporary
is one hired for a specified period of time (not to exceed six months) and who will be
from the payroll at the end of such period. Temporary employees receive none of the
contained in this Agreement. Temporary employees shall not be used to replace, reduce or
displace regular employment." Ms. Saueressig was separated from the payroll on June 19,
less than six months after she began in her temporary status. When she was placed on the
again, it was for a totally different position and function. She has received none of the
contained in this Agreement, and her temporary status has not caused the displacement or
reduction of regular employees.
It is anticipated that Ms. Shimek will be returning from
leave on October 27, 1997. At
the time of her return Ms. Saueressig will be removed from her temporary position, and her
employment relationship with the Manitowoc County Sheriff's Department will be
. . .
POSITIONS OF THE
In regard to the question of arbitrability, the Union asserted that the County's denial
benefits to the Grievant should constitute a continuing basis for a grievance and that the
deceptive statements to Union representatives and employes should not preclude the Grievant
proceeding in this case and receiving an award on the merits. In regard to the merits of the
the Union asserted that because the Grievant had an expectation of continued employment
because that employment lasted more than six months she was, under Article X, to be
a regular employe, not a temporary employe. In this regard, the Union noted that the
began performing Dawn Madsen's duties before March 6, 1997 and that while the Grievant
training to substitute for Shimek, she performed other duties as well. The Union pointed out
there was no evidence that the Grievant suffered any reduction in her work hours in 1997
a lack of work at the Sheriff's Department. The Union finds it significant in that the
status report dated May 24, 1995, regarding the Grievant, the Grievant was listed as a
deputy" and her status was then listed as temporary, part-time. Again, on March 6, 1997,
County issued another employe status report for the Grievant which listed her as having a
change from Reserve Deputy to Secretary/Clerk - Temporary and indicated that her wage
change from $6.94 to $10.39 per hour and that she would replace Dawn Madsen on a
regular basis. These facts, in the Union's view, show the obviously contradictory manner in
which the County depicted the Grievant's status while assigning her essentially the same
she had performed since 1995.
The Union contended that the vacation which the Grievant took from June 19, 1997
through June 30, 1997 was not a leave of absence nor a break in service because both the
and the Grievant expected that the Grievant's work would continue to be regular after her
and for an extended period of time. Thus, the Union asserted, the County merely changed
Grievant's status on paper and that this technical change should not be persuasive of her
duties and employment status for the County.
The Union noted that the Grievant worked regularly and consistently from May, 1995
her termination in October, 1997. The fact that the County did not, in fact, separate the
from employment prior to her six month service as a temporary employe having expired,
demonstrated to the Union that the grievance must be sustained. The County's policy that
the Grievant was not on the current clerical eligibility list she could not be considered for
vacancies should not apply to the Grievant as she was already a regular clerical employe at
time she could have posted into Madsen's position. The Union noted that the Grievant was
unaware that she had to qualify more than once for the eligibility list. Furthermore, the
pointed out that the Employer's witnesses stated that the Grievant was a competent worker,
she could have passed the clerical eligibility list test and that she could have performed all of
duties of the open position in the Department.
In all of the circumstances, the Union urged that the Employer, by hiring the
treating her as a regular employe, had waived the requirement that she be on the current
eligibility list before she could be considered for any regular employment posting. The
contended, therefore, that the Grievant is entitled to all of the benefits of the regular position
she occupied pursuant to the collective bargaining agreement. In fact, the Union urged, upon
termination in October of 1997, the Grievant was entitled to use the layoff clause to either
Christensen laid off or to post for or bump into other unit jobs. Thus, the Union sought that
grievance be sustained and that an Order be issued requiring the County to recognize that the
Grievant was entitled to all benefits of the collective bargaining agreement applicable to a
part-time Secretary/Clerk and to order that the County make the Grievant whole.
The County initially observed that the time limit for bringing a grievance is no later
thirty (30) calendar days after the Union knew, or should have known, of the occurrence
gave rise to the grievance. On this point, the County noted that the Grievant was initially
and utilized as a reserve deputy from May 24, 1995 through March 5, 1997. Thereafter, the
Grievant was hired as a temporary replacement for Dawn Madsen beginning on March 6,
and that following a separation in employment, the Grievant was hired as a temporary
for Patty Shimek in late June, 1997. The County noted that with regard to the Grievant's
temporary employment to replace Madsen and Shimek, neither of these positions was more
six months in length, and that in any event, the Grievant was told that she would not be
to continue as a permanent employe after these temporary jobs were completed.
Given this factual background, the County argued that any grievance which attempted
complain regarding the Grievant's employment as a reserve deputy from May 24, 1995
March 6, 1997 would be more than three years untimely. The County noted that Union
admitted that they were aware of the Grievant's status as a reserve deputy during this period
time; that the Grievant was not a member of the bargaining unit; and that the contract did not
apply to her.
With regard to the Grievant's employment as a temporary replacement for Dawn
the County urged that the Union knew in March, 1997 that the County was treating the
as a temporary employe, not to be considered for permanent employment and that her
would be terminated within six months. Yet, the County noted, the Union failed to grieve
County's treatment of the Grievant until months after it knew of the County's position
her employment. With regard to the Grievant's employment as a temporary replacement for
Shimek, the County noted that the Union knew in June, 1997, that the Grievant would be
replacing Ms. Shimek and that that employment would be terminated after less than a
period. Thus, in the County's view, the grievance regarding this position
was filed three months late. Therefore, the County urged that the grievance should be
without consideration of the substantive issue in this case.
In the alternative, assuming that the Arbitrator found the case timely, the County
that the contract permits the Employer to hire temporary employes pursuant to Article X.
the Grievant's first assignment as a temporary employe lasted for only four months, the
urged, no violation of Article X occurred in that instance. Thereafter, following a period of
separation from employment, the County noted that the Grievant's assignment to replace Ms.
Shimek again lasted only four months, not in excess of the six-month period mentioned in
X, Section D. The County asserted that the Grievant was employed to cover two different
positions which were each temporarily vacant for periods of less than six months and that
therefore, her employment in these positions could not violate Article X, Section D.
noted that the Grievant was fully aware that she was covering two different positions and that
time in each position was to be limited and would not evolve into a permanent job.
The County took exception to the Union's request that the Grievant be awarded the
position that was ultimately filled by Brenda Christensen. In this regard, the County noted
the Grievant was not eligible to be hired into that position because she was not on the
clerical eligibility list. In addition, the County noted, the Union had had an opportunity to
the relief it is seeking in this case by proposing a formal written agreement to the County
The Union failed to do this. The Union's failure to act essentially cost the Grievant the
opportunity to be hired as a permanent employe of the Sheriff's Department and, the County
urged, the County should not be made to pay for the Union's mistake in failing to pursue a
settlement with the County previously. In all of the circumstances, the County sought denial
dismissal of the grievance in its entirety.
If the County's arguments regarding the timing of the filing of the instant grievance
accepted, the Union argued that it would have had three separate 30-day periods in which to
appropriately file the grievance. In the alternative, the Union asserted that the County had
deceived employes in the Department regarding the Grievant's status and that therefore it
not profit from such deception. In any event, the Union reiterated that this case involves a
continuing grievance, and that the Union could have waited at least a six-month period before
could have determined whether the County was indeed treating the Grievant as a temporary
regular employe. Thus, the Union urged that the grievance be found timely filed in these
The Union argued that the Employer should not be allowed to essentially assert that
employe is temporary but to then retain the employe and assign regular duties to the
This showed that the County had in essence hired and maintained that employe in a regular
position from the beginning. The Union noted that the County has no authority to make
contracts with employes; that the Grievant was used as a substitute for regular employes who
on leave beginning in early 1997; that she worked regularly while no employe was on leave
January and February, 1997; and that she worked on her usual work tasks or was assigned
by the clerical supervisor consistently throughout her employment. The Union observed that
contract does not allow the Employer to unilaterally extend a temporary employe's status for
reason. Because the Employer essentially waived the applicability of the clerical eligibility
to the Grievant by treating her as a regular clerical employe, she had rights to the position
she occupied at the time she filed the grievance and she should have been given job-bidding
as well as the proper pay and benefits back to at least the beginning of 1997.
The fact that the Employer stated that it would have agreed to a settlement whereby
Grievant would have been placed in a regular position in the Department had the Union body
entered into such an agreement, the Union observed, constituted an explicit waiver of the
that all new employes must be on the clerical eligibility list prior to hire. This fact is
reason why the Union should prevail in this case and why the Grievant's pay and benefits
be awarded back to the beginning of her employment with the Department. In the
Union urged that the remedy herein should reach back seven months, including the 30-day
deadline for filing the grievance.
The County argued that the Union knew or should have known that the Grievant had
worked in the Department since 1995 and that indeed the Union's witnesses admitted as
hearing in this case. The County therefore urged that the Union's claim that a continuing
for its grievance existed is unpersuasive as it blurs the distinction between the Grievant's
employment initially as a Reserve Deputy and her subsequent employment in two temporary
assignments. In addition, the Union's argument on this point was inconsistent with the
facts. In this regard, the County noted that the Grievant admitted she was told in March and
May, 1997 that she was a temporary employe and that she would be terminated after
those duties for less than six months. Furthermore, the County argued that the Union's
it did not understand the Grievant was a part of the bargaining unit constituted no true
misunderstanding, as the Union's witnesses readily admitted that all Reserve Deputies in the
Department are excluded from the bargaining unit.
The County asserted that even if this case had been filed as a unit clarification under
Section 111.70(d)(5), Stats., it "would be timely only if brought while the employe was
employed in the position the Union was seeking to have recognized" and that in any event,
grievance filed was untimely because the Grievant's status changed in early March, 1997
Reserve Deputy to temporary employe. The County pointed out, contrary to the Union's
assertions, that the duties that were assigned to the Grievant during her period of
not relevant to this case. In these circumstances, the County urged that the grievance had
filed three years too late, and that it should be dismissed on that basis.
After March 6, 1997, the County contended that the Grievant had no expectation of
continued employment beyond the period of her two temporary assignments. The County
the Union's contention that the two separate assignments given to the Grievant, each of
less than six months, should be treated as a single assignment lasting more than six months
that the Grievant's unpaid vacation did not constitute a break in her employment with the
The County asserted that the Union's claims that the County had waived the requirement that
Grievant be on the eligibility list and that the employer had in fact originally hired the
off the eligibility list were both false and unsupported by the record herein. In regard to the
point, the County observed that when the Grievant was hired as a Reserve Deputy there was
requirement that she be on the eligibility list to be hired and that the fact that she was then
clerical eligibility list does not necessarily require a conclusion that she was hired from it.
The County also argued that the Union misrepresented the record evidence in its
brief as follows. The County noted that the fact that the Grievant was acting as a temporary
replacement for a regular part-time employe would not therefore make the Grievant a regular
part-time employe in her own right. In addition, the County pointed out that there was no
record evidence to show that the Grievant could be regarded as a transferred employe after
left her position as a Reserve Deputy, despite the Union's assertions in this area.
In all of the circumstances, the County urged that the grievance was not timely with
to the Grievant's employment as a Reserve Deputy or with respect to her temporary
replacing Dawn Madsen and Patty Shimek. Even if the grievance were found timely with
to the Grievant's employment as a Reserve Deputy, the County argued that the remedy the
is seeking is actually one which should be provided through a unit clarification and that
the grievance should be denied "because it is in the wrong forum". 5 Alternatively, if the
grievance is found timely with respect to the temporary assignments, the County urged that it
not violate the collective bargaining agreement by hiring the Grievant for two separate and
temporary work assignments which were each less than six months in duration during which
Grievant was separated from the County's employment for a two-week period of time.
The labor agreement specifically provides that any grievance may be processed under
Article VIII of the contract regarding "the meaning and application" of the agreement as well
"questions relating to wages, hours and working conditions." The instant grievance is
arbitrable on its face. Step 1 of the procedure states that a grievance must be filed "within a
reasonable period of time, but in no event later than thirty (30) calendar days after the Union
or should have known, of the occurrence of such grievance." Based upon the record
this case, it is my view that the grievance herein was timely filed pursuant to the terms of
The record demonstrated that the Grievant was originally hired as a non-sworn
Deputy in 1995, not for a specified period of time. It is apparent, that the Grievant accepted
employment without having any assurance that it would continue into the future and without
having a regular schedule that she could depend upon. Rather, the Grievant and Clerical
Coordinator Leist negotiated the Grievant's work schedule and posted this schedule on a
calendar not applicable to bargaining unit employes from 1995 until March 5, 1997. Based
the record evidence in this case, the position the Grievant held from 1995 to 1997 was
"temporary" under the labor agreement. It also appears from the record that Department
employes were aware of the fact that the Grievant was employed on an intermittent basis
essentially to assist them in completing their work when employes went on vacation or the
The County has argued that because Department employes, members of the
unit, were aware that the Grievant was employed on a casual basis beginning in 1995, the
grievance (filed in late August, 1997) essentially came three years too late. I note that
states that the Union is "the exclusive bargaining agent for the employes of the Manitowoc
Sheriff's Department. . ." Article I does not exclude casual employes or Reserve Deputies
makes no distinction between part-time employes or regular employes for purposes of
Because the Local Union knew for years about the Grievant's employment as a Reserve
and never made further inquiries regarding her employment status or attempted to claim the
position or file a grievance thereon, the grievance herein was clearly filed more than 30 days
beyond the time at which the Union should have known a grievance arguably existed
the Grievant's employment as a Reserve Deputy. 6
The question arises whether the instant grievance was timely filed regarding the
employment as a temporary employe. On March 6, 1997, the Grievant was hired as a
"temporary" employe by the County. The Union filed the instant grievance on August 29,
approximately six months after the Grievant began work for the County as a temporary
employe. The fact that the County assigned the Grievant at first to replace Dawn
later to replace Patty Shimek does not require a conclusion that she should be excluded from
coverage by the collective bargaining agreement as a temporary employe. Thus, I find that
Union was well within the timelines of Article VIII in filing the grievance regarding the
status of the Grievant and that the fact that the Union waited until the Grievant had worked
six months as a temporary employe was logical and appropriate. In particular, I note that it
not until August 4, 1997 that the Grievant was told that she would not be considered for the
position which Dawn Madsen had previously held and that there was no evidence proffered
show that the Union was officially notified by the County of the Grievant's employment
after early March, 1997. In all of the circumstances of this case, I find that the Union filed
instant grievance no later than thirty (30) days after the Union should have known of the
occurrence of the grievance.
Having found the grievance timely filed, I turn now to the substantive issues in this
The County has argued that the Grievant could not possibly have become a regular
employe as of
March 6, 1997, because it gave her two temporary assignments, each of less than 6 months'
duration with a period of separation from County employment between these assignments due
the Grievant's request for vacation. Article X, Section D makes no reference to temporary
employes filling in for regular part-time employes as does Article X, Section B. As such, it
clear that the parties intended that Article X, Section D should apply not to positions, but to
employment of temporary employes for a specific period of time. Thus, in my view, the
cannot avoid its obligations to treat an employe as non-temporary where it hires and employs
person in various jobs for a period in excess of six months as it did here.
The record in this case clearly demonstrates that the County used the Grievant's
for a two-week vacation in the middle of June, 1997 to try to show the "separation from the
payroll" required by Article X but that this action was simply a paper transaction for the
convenience of the County. Thus, the County failed to demonstrate evidence to show that it
in fact, separated the Grievant from the payroll. I note that Clerical Supervisor Leist and the
Grievant discussed the fact that the Grievant would have to take an unpaid vacation beginning
June 19th, to show a separation from employment, but that the Grievant was expected to
to work on June 30, 1997 to continue her employment in the Department. Also, I note that
County proffered no employe status report form to document an actual separation from
employment. These facts show that there was no genuine separation from the payroll in this
The Union has argued that the Grievant should be placed in Dawn Madsen's
position and be granted full back pay and benefits in that position. The contract does not
such a far-reaching remedy. Indeed, the contract is silent regarding what, if any, remedy
be granted where, as here, the County has employed a temporary employe beyond the
contractual time limit. Given the silence of the agreement on this point, I am loath to order
County to offer employment to the Grievant, as such an extreme remedy should be clearly
provided for in the contract before it can be awarded by an arbitrator. However, given my
conclusion that the County violated the contract by its actions toward the Grievant, I believe
fair and reasonable to order the County to make her whole by paying her the contract rate
hours she worked from March 6 through October 24, 1997 and by paying her for the
took from June 19 through June 30, 1997.
Based upon the relevant evidence and argument in this case, I therefore issue the
The grievance was timely filed.
The Employer violated the collective bargaining agreement by denying the Grievant,
Nancy Saueressig regular employe wages and benefits as of March 6, 1997. The County
cease and desist from employing temporary employes for more than six (6) months and it
pay the Grievant vacation pay for the period June 19 through June 30, 1997 as well as the
appropriate contractual wage rate applicable to regular bargaining unit employes effective
March 6, 1997, through her termination on October 24, 1997 (if it has not already
As stated above, the County has no obligation to offer the Grievant any regular
employment as a result of this Award.
Dated at Oshkosh, Wisconsin this 29th day of April, 1998.
Sharon A. Gallagher /s/
Sharon A. Gallagher, Arbitrator
1. The current clerical eligibility list dates back to
November, 1995. Personnel Director Cornils
stated that from 1994 to November, 1995 the County had a number of openings, and used
1994 list but that the Personnel Committee did not decide to retest and set up a new list until
November, 1995. Due to downsizing by attrition, the 1995 clerical eligibility list was not
exhausted in May, 1997 when Dawn Madsen's part-time position became vacant.
2. During January and February, 1997, the Grievant was
scheduled even when no other
employes were off work, she began working more regular hours at that time and she did
unit work. These facts, however, do not mean that the Grievant's position became a regular
position at this time.
3. During the first two weeks of March, the Grievant
worked three days per week, 8:00 a.m.
to 1:00 or 2:00 p.m.
4. Sometime in May, 1997, departmental bargaining unit
employes came to Clerical Coordinator
Leist and asked her if the Grievant could stay on to take Dawn Madsen's former part-time
Both Madsen and Shulak were then Union stewards and they put together a written
signed by all unit employes in the Department, which they proposed to the County,
waiving the fact that the Grievant was not then on the clerical eligibility list but placing the
Grievant into the part-time Secretary/Clerical position Dawn Madsen vacated when she
the Secretary/Bookkeeper in the Department on a non-precedent setting basis.
Leist took the suggestion up with Personnel Director Cornils who stated that it might
for the County to enter into such an agreement but it was necessary for the employes to have
Union body formally adopt a written agreement on the subject and then propose it to the
Although the employes put together such a written agreement and gave it to the Union
on May 29, 1997, the Union never formally proposed any such agreement to the County and
County hired Brenda Christianson off its 1995 clerical eligibility list, to fill the part-time
after no internal applicants posted for the position. The fact that the Union failed to pursue a
settlement regarding the Grievant, however, is not relevant to this case.
5. Contrary to the County's assertions, the Union is not in
the wrong forum here: Article X of
the contract addresses the allegations made in this grievance. In addition, the unit
portions of the Wisconsin Statutes are separate and distinct provisions to which timeliness
arguments do not pertain.
6. Yet, whether the Union could have won a grievance
regarding the Grievant's employment
status while she was a Reserve Deputy is not an issue properly before me. In any event, the
Grievant, as a casual employe from 1995 to March, 1997, could not have been legally
in the unit.