BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
LAW ENFORCEMENT EMPLOYEE RELATIONS
DIVISION LOCAL 225
(Jody Benson Grievance)
Mr. Gary Gravesen, Bargaining Consultant, Wisconsin
Professional Police Association/LEER
Mr. Michael D. Miller, Administrative Coordinator/Personnel
Director, on behalf of the County.
The above-captioned parties, herein "Union" and "County", are privy to a collective
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Shell Lake, Wisconsin, on January 14, 1998. The hearing was not transcribed and the
thereafter filed briefs and reply briefs that were received by March 23, 1998. Based upon
record and the arguments of the parties, I issue the following Award.
Since the parties were unable to jointly agree on the issue, I have framed it as
Whether the County violated Article 6, paragraph B, of
the contract when it failed to offer
the Jail Sergeant position to grievant Jodi Benson and, if so, what is the appropriate remedy?
The County in June, 1997, posted for a newly-created Jail Sergeant position in its
Grievant Benson, a Dispatcher/Jailor since 1991, bid on that position, along with fellow
Marcy Baumgart and others.
The County passed over Benson - even though she had about 8 months more seniority
Baumgart and even though the County concedes that Benson is otherwise qualified - and
the Jail Sergeant position to Baumgart. The County by letter dated June 25, 1997, informed
that it passed over her because:
. . .
Under the terms of the current labor agreement, Article
6, paragraph B, Sheriff Dryden has
awarded the Jail Sergeant position to Marcy Baumgart who he feels is the senior most
candidate. This decision is based on your potentially conflicting personal relationship with
other employee of the department whom you would be likely to supervise.
Thank you again for your interest.
. . .
The "personal relationship" alluded to in said letter referred to Benson's admitted
relationship since 1992 with Jailor McLain, who at that time worked the 12:00 A.M. - 7:00
and who now works a staggered shift. The Jail Sergeants' hours are from 2:30 p.m. - 11:00
thereby requiring the Jail Sergeant to have overlapping shifts with McLain on several
week. Benson's relationship with McLain is well-known in the Sheriff's Department, as
never tried to hide it.
The County defends its decision to pass over Benson in part on the grounds that her
supervision of McLain would create a conflict of interest and violate its Nepotism Policy
Exhibit 8), which was never bargained with the Union and which was adopted before 1988
ever being challenged by the Union up to the time of the instant grievance. Said Policy
A) All applicants for County positions
will be required to list on their application form whether
they have any relative employed by Washburn County and what the relationship is a member
of the immediate family and is in a direct administrative and/or supervisory capacity in the
Department with the vacancy, the applicant will not be considered in that position.*
B) No person employed by or elected
to serve Washburn County may have any part in the
screening or hiring of job applicants who are members of their immediate family. Neither
such an employee or elected official have any part in the evaluation, promotion, demotion,
termination, negotiation of wages and benefits or supervision of any member of their
*Immediate family means
wife, husband, son, daughter, mother, father, brother, sister,
brother-in-law, sister-in-law, daughter-in-law, mother-in-law, father-in-law, step-parent or
step-child. (Emphasis added).
C) If two (2) persons in the employ of
the County marry, the Personnel Committee shall
investigate any potential areas of conflict of interest and take whatever steps are necessary
to eliminate such conflict of interest.
D) Any committee or department head
action which results in the hiring or promotion of any
relative of a County employee or elected official shall be subject to approval of the Personnel
E) All situations involving employment
of relatives shall be evaluated and, if deemed necessary,
acted upon by the Personnel Committee.
F) Decisions of the Personnel
Committee in the above matters may be appealed to the County
There is no evidence that either Benson or McLain in the past ever engaged in any
inappropriate conduct on the job.
The Sheriff's Department in the past has hired the relatives of employes without any
difficulties ever arising because of those family relationships. It hired Baumgart's daughter
as a limited-term employe during the summer and weekends, during which time Baumgart
supervised her daughter. The County also hired Mark Dennis as a limited-term
when Sergeant Dave Dennis, his brother, worked as a Road Deputy. The two worked
about 45 occasions. At the time of his hire, Mark Dennis was told he could not post into
Deputy position. And, it hired Debbie Riecter as a Law Enforcement Assistant, thereby
to sometimes work under Mark Riecter.
Sheriff Terrence C. Dryden testified that he has never hired any employes in
County's nepotism policy and that employes in the past have supervised their relatives only
on a very
Jail Administrator Mary Olson, who is in the bargaining unit, testified that the
Jail Sergeant position was created to help her keep the jail clean; to supervise the quality and
of bargaining unit work; to schedule employes; and to approve overtime. Olson added that
Sergeant does "not really" mete out formal discipline, but only "corrective discipline".
Benson on July 8, 1997, grieved the County's failure to award her the Jail Sergeant
hence leading to the instant proceeding.
Thereafter, the County's Board of Supervisors on August 19, 1997, adopted a
which stated in pertinent part:
BE IT FURTHER RESOLVED that
under the paragraph entitled "Coverage" of the County
Ethics Policy, Ordinance No. 6-92, which paragraph currently excludes certain positions is
deleted and replaced with the following: "This Code governs all County officials, whether
appointed, paid or unpaid, and all County employees."
Prior thereto, the County's Ethics Policy did not cover any bargaining unit employes.
POSITIONS OF THE
The Union asserts that the County violated Article 6, paragraph B, of the contract
contractual just cause proviso when it failed to award the Jail Sergeant position to grievant
only because of her live-in relationship with fellow Jailor McLain. The Union thus states
County's Nepotism Policy and Ethics Policy were unilaterally promulgated and were never
with the Union and that, as a result, they cannot be used to deny Benson the posted position
face of her excellent qualifications. It also points out that the County in the past has hired
of employes; that the County's own Nepotism Policy does not on its face cover live-in
that a legal opinion on this issue by Edwin v. Fischer, the County's Corporation Counsel,
given any weight; and that the County's revised Ethics Policy should not be considered
because it was
adopted after the grievance was filed. As a remedy, the Union seeks a traditional
which includes awarding back pay and the Jail Sergeant position to Benson.
The County, in turn, maintains that the Union - because of its past inaction - has
right to bargain over its nepotism and ethics policies; that said policies constitute "reasonable
rules" which are authorized under the contract; and that since the Jail Sergeant exercises
supervision over jail employes, the "operational and morale problems arising from being
by one's spouse are too numerous to mention here". While agreeing that its Nepotism Policy
not specifically address those living in a 'spouse like' relationship", the
County asserts that such relationships can be viewed as other "spousal" relationships
"will cause problems with office efficiency, jail and public safety. . ." The County also
no binding past practice exists relating to the hiring of an employes' relatives.
This case turns on the interplay between Article 2 of the contract, entitled
Rights", and Article 6, entitled "Job Posting, Transfer and Promotions."
Article 2 states in pertinent part that the County retains the right "To establish
work rules" and "To hire, promote, transfer, reschedule and assign employes in positions
Article 6, Section B, states:
B. Posting Procedure: Whenever a
vacancy occurs or a new job is created, it shall be posted on
a bulletin board for a period of ten (10) calendar days. Each employee interested in applying
for the job shall sign the notice in the space provided or shall authorize his or her designate
to sign the posting. At the end of ten (10) calendar days, the notice shall be removed and
applicant shall be selected within ten (10) calendar days. The notice shall state the
prerequisites for the position to be filled and said prerequisites shall be consistent with the
requirements of the job classification. The employee with the greatest seniority who is
and qualified shall be given the job. If there is any difference of opinion as to the
qualifications of an employee, the employee may seek adjustment under the grievance
procedure. The Employer may administer valid and appropriate tests and exams to
ability and qualifications. The parties agree that vacancies shall be offered to all interested
and qualified employees covered by the terms and conditions of this agreement before other
applicants are considered for the vacancy. Internal applicants must meet all criteria for the
posting before they shall be considered for the position. Unsuccessful internal candidates
receive a written notice stating the reasons they were not considered for the position.
Here, because Benson had the "greatest seniority" and was otherwise "able and
the Jail Sergeant position, she was entitled to said position under Article 6, Section B.
The question then becomes whether the County's nepotism and ethics policies
"reasonable work rules" under Article 2 and whether the County could deny Benson the job
ground that her live-in relationship with fellow jailor McLain disqualified her from said
though Benson had more seniority than Baumgart.
The County's Nepotism Policy (Joint Exhibit 8), on its face does not cover said
relationships because it only covers:
"wife, husband, son, daughter, mother, father, brother,
sister, brother-in-law, sister-in-law,
daughter-in-law, mother-in-law, father-in-law, step-parent or step-child."
Since McLain does not fall under any of these listed categories, his relationship with
Benson is not
covered under this language.
The County nevertheless argues that McLain and Benson are in a "spousal
that they therefore are covered. I disagree. If the County wants to encompass live-in
under its policy, it should clearly amend its policy to reflect that fact. Until it does, only the
categories listed therein are covered.
However, even if we assume
arguendo that the policy covers live-in
relationships, it still is
not a "reasonable work rule" because the County in the past has hired relatives of employes,
showing that it has applied its policy in a disparate manner. For while Sheriff Dryden tried
downplay such other hires, the record reveals that one set of relatives worked on the same
about 45 separate instances without incident. In addition, application of said policy here is
because Benson and McLain in the past have worked together without incident and because
record shows that Benson is an excellent employe who has always displayed the highest level
professionalism, a point conceded by Sheriff Dryden and Jail Administrator Olson. The
claim here that they cannot work together thus rests entirely on conjecture which is not
by one iota of objective evidence.
The County's revised Ethics Policy also suffers from a fundamental defect: it was
August, 1997, to cover Benson and other bargaining unit employes only after
Benson had filed her
grievance and only after the County decided in June, 1997 to not award her the
Jail Sergeant position.
Since the revised Ethics Policy was not in effect in June, 1997, the County cannot now rely
policy that was not even in existence at the time Benson was denied the Jail Sergeant
But again, even if we were to assume arguendo that the
Ethics Policy does apply, the County
still has failed to offer any concrete evidence to prove that Benson's live-in relationship with
and her promotion to the Jail Sergeant position would violate this policy.
There similarly is no merit to the County's claim that the Union has waived its right
to its Nepotism Policy because it did not raise any earlier objection to its policy which has
effect since at least 1988. For in this connection, it is well-established that an employer's
promulgated work rules cannot supersede a contract and that, moreover, a union can grieve
when a policy is promulgated or when it is being implemented to a given set
of facts. See How
Arbitration Works, Elkouri and Elkouri, pp. 511; 280. (BNA, 5th Edition, 1997).
Here, the Union
has taken the latter course - which it has every right to do.
Lastly, the record does not support the County's claim that the Jail Sergeant operates
supervisor. Jail Administrator Olson - who oversees the Jail Sergeant and who herself is in
bargaining unit - testified in substance that the Jail Sergeant only performs routine bargaining
work devoid of real supervisory duties.
In light of the above, it is my
1. That the County violated Article 6, paragraph B, of the contract when it failed
award the Jail Sergeant position to grievant Jodi Benson.
2. That to rectify said contractual violation, the County shall make Jodi Benson
by immediately offering her the Jail Sergeant position and by paying to her a sum of money,
all benefits, that she would have earned had she been awarded said position in June, 1997.
3. That to resolve any questions that may arise over application of this Award, I
retain my jurisdiction indefinitely. The parties thus are to advise me within thirty (30) days
any questions have so arisen.
Dated at Madison, Wisconsin, this 15th day of May, 1998.
Amedeo Greco /s/
Amedeo Greco, Arbitrator