BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS UNION,
EAU CLAIRE COUNTY
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C.,
by Ms. Naomi E. Soldon and Ms.
Jill M. Hartley, on behalf of the Union.
Ms. Michelle L. Weyda, Assistant, on behalf of the County.
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, the
a hearing and agreed that their dispute should be decided upon the factual stipulation related
The parties filed briefs and the Union filed a reply brief that was received by August 26,
upon the entire record and arguments of the parties, I issue the following Award.
The parties have agreed to the following issue:
Whether grievant Larry W. Jacobson is entitled to
receive credit for years of service for sick
leave payout purposes under Section 10.07 of the contract for the time he served as elected
for Eau Claire County.
Grievant Jacobson was employed by Eau Claire County as a Deputy Sheriff from
1, 1971, to January 3, 1977. He was elected Sheriff in November, 1976, and served as
January 3, 1977, through January 4, 1987.
At the time he was elected Sheriff, Jacobson was covered by the parties' 1975-76
Non-Supervisory Unit Collective Bargaining Agreement. Article 8 therein included a
that did not provide for payout of accumulated leave upon leaving Eau Claire County
Article 9, Section 8, therein set forth the process when an employe is elected Sheriff
provided in relevant part:
. . .
". . .If he successfully wins the election for
any public office (except Eau Claire County
Sheriff) he shall, upon assuming such an office sever his employment with the Eau Claire
Sheriff's Department. If an employee successfully wins the general election for Eau
Sheriff, he shall be granted a leave of absence for the term of office, if requested. Seniority
not accumulate during such leave while he serves as Eau Claire County Sheriff. Upon
of his office as Eau Claire County Sheriff, he shall have thirty (30) days in which to apply
reinstated to the Eau Claire County Sheriff's Department Personnel Roster and Seniority
he returns to the Eau Claire County Sheriff's Department, he shall be required to take the
of the last working employee on the Sheriff's Department Seniority List, providing his
standing is greater than the last employee working. He shall also be allowed to bid for all
openings from then on in line with his new reinstated seniority. Time worked for Eau Claire
while being the County Sheriff, shall count for vacation purposes after reinstatement. . ."
. . .
At the time he became Sheriff in 1977, Jacobson was paid out accrued benefits
the terms of the contract. He requested and was granted a leave of absence to cover each
was elected Sheriff over the subsequent years. While serving as Sheriff, he did not earn
sick leave benefits and, as an elected official, he did not have to account for his time in any
Jacobson applied for and was reinstated as a Deputy Sheriff following his election
November, 1986, effective January 5, 1987. He remained in the Non-Supervisory
as a Deputy Sheriff until his retirement on January 6, 1998.
Upon his retirement on January 6, 1998, Jacobson was paid for one-third (1/3) of his
sick-leave balance of 342 hours, i.e. 114 hours, at his ending rate of pay of $16.97. His
date was then changed from September 1, 1971 to September 13, 1981, to reflect his prior
service within the bargaining unit. His anniversary date remains September 1, 1971.
The Non-Supervisory Unit's 1998-99 Collective Bargaining Agreement (Joint Exhibit
provides for sick-leave payout at Article 10, Section 10.07, as follows:
. . .
"Employees terminating with ten (10) or more
years of creditable service with Eau Claire
County shall receive one-third (1/3) of their unused sick leave in cash, except employees
with twenty (20) or more years of creditable employment with Eau Claire County shall
cash fifty percent (50%) of unused sick leave to be credited toward payment of health
premiums. Employees retiring, under the State Retirement System with twenty (20) or more
of service with the County will have the option to have 100 percent of their accrued sick
converted to dollars and utilize that amount to continue to pay for health insurance
Retirement means that the employee will receive payments from the Wisconsin Retirement
. . .
POSITIONS OF THE PARTIES
The Union argues that Jacobson is entitled to credit for those years of service he
Sheriff for purposes of accrued sick leave payout because his leaves of absence during that
"did not sever his County employment"; because Section 10.07 of the contract "requires
of one hundred percent of Jacobson's accrued sick leave"; and because the "Sheriff is
an employee under state statutes." As a remedy, the Union asks that the "County be ordered
credit Jacobson's years as Sheriff for purposes of sick leave to dollars for health insurance
premiums", along with reimbursing him "for those premiums he has personally paid since his
retirement on January 6, 1998."
The County maintains that Jacobson is not entitled to any years of service credit for
payout during the time he served as Sheriff because the 1975-1976 contract conferred no
and because he then severed his employment relationship with the County.
Contrary to the County's claim, Jacobson in fact never severed his employment
with the County during the time he served as Sheriff, as the collective bargaining contract at
stated in Article 9, Section 8:
. . .
"If he [i.e. a political candidate] successfully wins the
election for any public office (except
Eau Claire County Sheriff), he shall, upon assuming such an office, sever his employment
Eau Claire County Sheriff's Department."
. . .
This language can only be interpreted one way: all successful political candidates --
a newly-elected Sheriff -- must sever their employment with the Sheriff's Department. The
is expressly excluded from this proviso, thereby indicating that he/she does not
employment relationship with the County. Indeed, that is why the County paid Jacobson's
health insurance benefits during his tenure as Sheriff and that is why he remained a County
See, for instance, State ex rel. Sheets v. Fay, 54 Wis. 2d. 642, 196 N.W. 2d 651 (1972),
the court ruled that a County Court Commissioner was a County employe. The Union
correct in stating: "These leaves of absence [granted to the Sheriff] did not sever his
with the Sheriff's Department; rather, they merely suspended his active duty as a deputy
It therefore is immaterial that Jacobson during said leaves did not accrue seniority or
vacation or sick leave benefits because the question of what benefits must be paid to an
under an approved leave of absence is a separate question of whether that employe remains a
employe during his/her tenure as Sheriff. See City of Sunrise, 94 LA 80, 85 (Richard,
wherein Arbitrator William L. Richard ruled that an employe did not sever his employment
was on a leave of absence because, in Arbitrator Richard's words, the "purpose of
absence= is to avoid termination of the employment relationship. .
.". (Emphasis in original). While
the County argues that City of Sunrise is inapplicable because it "involved a probationary
who was not an elected official,
requesting a leave of absence during his probationary period", the fact remains that a
absence, by its very definition, does not sever the employment relationship.
Since Jacobson participated in the State Retirement System for over twenty years, he
covered under Section 10.07 of the present contract that states:
"Employees retiring, under the State Retirement System
with twenty (20) or more years of
service with the County will have the option to have 100 percent of their accrued sick leave
to dollars and utilize that amount to continue to pay for health insurance premiums."
As correctly noted by the Union, this language "does not confine
that service merely to time served
as an Eau Claire County deputy sheriff." Instead, it is much broader by providing for
of credit to any County employe who has twenty years of service under the State
which is the situation here.
Contrary to the County's claim, it thus is immaterial that the 1975-1976 contract did
provide for the sick leave benefit that Jacobson now seeks, as this case turns on what
existed at the time of his retirement in 1998, rather than what the contract provided over 20
Also without merit is the County's additional claim that Jacobson is not entitled to the
leave benefit he seeks because Wisconsin's Attorney General ruled in 66 Op. Atty. Gen. 329
that a county cannot impose provisions relating to the number of sick days or vacation days a
county-elected official may take with pay. The question of whether an elected official must
his/her time is a separate question of whether that person's participation in the State
System should be counted for the purpose of sick leave payout under a collective bargaining
agreement. Since 66 Op. Atty. Gen. 329 did not address this second question, there is no
believe that the County is not lawfully bound by the very contractual terms to which it has
I therefore find that Section 10.07 of the contract must be given its plain meaning and
Jacobson is entitled to be paid for one hundred percent of his accumulated sick leave that he
over the twenty-plus years that he served as a County employe, and as a participant in
State Retirement System. Since Jacobson throughout that time provided the County with
of great value, i.e. his services, he now is entitled to receive whatever benefits are provided
for in the
In light of the above, it is my
1. That grievant Larry W. Jacobson is entitled to receive credit for years of
sick leave payout purposes under Section 10.07 of the contract for the time he served as
Sheriff for Eau Claire County.
2. That the County shall immediately grant him such credit and it shall increase
accrued sick leave account accordingly and it also shall reimburse him for any health
premiums he has paid since his January 6, 1998, retirement so that he can be made whole.
3. That to resolve any questions that may arise over application of this Award, I
retain my jurisdiction for at least sixty (60) days.
Dated at Madison, Wisconsin this 21st day of October, 1998.
Amedeo Greco, Arbitrator