BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
COLUMBIA COUNTY COURTHOUSE AND HUMAN
EMPLOYEES' UNION, LOCAL 2698-B, AFSCME,
Mr. David White, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, appearing on behalf of the Union.
Mr. Joseph Ruf III, Corporation Counsel, and Mr.
Brent R. Miller, Human Resources Director, appearing on behalf of the County.
Columbia County Courthouse and Human Services Employees Union, Local 2698-B,
AFSCME, AFL-CIO, hereinafter referred to as the Union, and Columbia County, hereinafter
to as the County, are parties to a collective bargaining agreement which provides for the final
binding arbitration of disputes arising thereunder. The Union made a request, with the
of the County that the Wisconsin Employment Relations Commission designate a member of
to act as an Arbitrator to hear and decide a grievance over a disciplinary matter. The
was so designated. Hearing was held in Portage, Wisconsin on August 15, 2000. The
transcribed and the parties filed briefs which were exchanged on November 2, 2000. The
reserved the right to file reply briefs but only the Union filed a reply brief and the record
on December 4, 2000.
The grievant has been employed by the County since February 5, 1990 and in 1999
Administrative Secretary in the Planning and Zoning Department. In 1999, the grievant
and accepted a position in the office of Register of Deeds and on March 1, 1999
returned to her position in the Department of Planning and Zoning. On March 18,
1999 the grievant
met with her Supervisor, Jeanine Baertsch and Michael Stapleton, the acting director of the
and Zoning Department. The grievant was given a letter which informed her to be on time
or call in
before 8:15 a.m., to proofread her work to ensure it was accurate, to provide correct
the public but not to give advice, to carry out oral and written instructions and to refer
her supervisor. It also informed the grievant that errors would be brought to her attention so
could be corrected and not repeated and if the grievant needed additional training or support,
should advise her supervisor. The letter also stated that they would meet every other week
her performance and any concerns she may have.
On April 13, 1999, the grievant was given a letter by Jeanine Baertsch which was a
to the March 18, 1999 letter and discussion. It noted that the grievant was reliable in being
on time and then listed a number of errors, many of which were minor, and explained why
procedures should be followed and ended with Ms. Baertsch stating that she would meet with
grievant again in two weeks to review the grievant's progress in improving the quality of her
On May 12, 1999, the grievant was given a letter concerning disciplinary review by
A. McLean, Personnel Director, which listed certain misconduct and deficiencies in her work
concluded that in the event the grievant was unable to perform her work as expected, Mr.
would recommend to either suspend or terminate the grievant's employment. On May 14,
grievant filed a grievance alleging that the correspondence date March 18, 1999, April 13,
May 12, 1999 lacked just cause. The grievance was denied and appealed to the instant
The parties agreed to the following:
Did the employer have just cause to issue the documents dated March 18,
13, 1999 and May 12, 1999?
If not, what is the appropriate remedy?
ARTICLE 15 MANAGEMENT RIGHTS
15.1 The County possesses the sole right
to operate county government and all management
rights repose in it, subject only to the provisions of this contract and applicable law. These
include, but are not limited to the following:
. . .
D) To suspend, demote, discharge, and take other
disciplinary action against
employees for cause, and subject to the procedure of Article V of this contract;
The County contends that the March 18, 1999 letter (Jt. Ex-3) informed the grievant
successful performance in her position would require her to meet certain expectations set out
and that there would be a follow up to discuss these concerns. It submits that the April 13,
letter (Jt. Ex 4) documented the follow up and is a fair assessment of the grievant's failure to
with certain basic performance expectations and standards required of her. The County
the letter of May 12, 1999 (Jt. Ex-5) fairly and accurately reflects the grievant's
claims that it memorializes the Department's expectations and chronicles those instances
work performance failed to meet the Department's expectations. It concludes that as stated
May 12, 1999 letter, the grievant, as an employee in the Department for six and one-half
expected to possess the necessary experience, training and know-how to perform her assigned
in a competent fashion. It concludes that it had just cause to issue the letters. (Jt. Exs-3, 4
The Union contends that the County bears the burden of establishing just cause for
imposed. It notes that the March 18, 1999 letter is not a disciplinary letter and just cause
be established. It maintains that both the April 13 and May 12, 1999, letters are clearly
and must meet the requirements of just cause.
It asserts the April 13, 1999 letter lacks just cause. It observes that at least 14
performance deficiencies and/or misconduct are raised in the letter. It points out that the
this letter did not testify and the County offers no explanation for this failure. It submits that
was a lack of evidence in the record to support any of these assertions and they must be
1. It states that the typing error on the purchase order did not show up in the
so there was no danger the County would pay an incorrect amount and the purchase order
put into evidence.
2. The Robert Dates matter is not supported by any testimony that the grievant
3. The Monday 29, 1999 error was allegedly on a document which was not
plus the correct date is indicated in three places, so no possibility of a problem exists.
4. Spelling errors on messages were not supported by any documentation and no
that the grievant wrote the messages.
5. Date/Day Mismatch is unsupported by any documentation or testimony.
6. The Stozinski receipt was not placed in the record and no witness testified
observation of this receipt.
7. The Baumgartner Permit was not placed in evidence and there was no
the grievant was guilty of anything improper.
8. As to the Guetschow matter, there was no evidence that the grievant gave
9. On Receipt Procedures, there was no testimony to support this allegation and
evidence that the grievant filled out these receipts.
10. The Purchase order allegedly left by grievant in Land Information Director's
was not established by any testimony.
11. The grievant was supposedly unable to locate the Herbert Bock file but no
supports this allegation.
12. The Randy Thompson matter was unsupported by any testimony and the
witness did not know how this was the grievant's fault and had no evidence that the grievant
13. The John Barth Zoning Certificate allegedly involved a call to Land
the grievant rather than her supervisor but this was not supported by any testimony.
14. Erroneous paperwork was allegedly being removed by the grievant, however
was no testimony that the grievant was removing erroneous paperwork or making any
It concludes that the County failed to prove even a single allegation and thus failed to
its burden of proof, so there is no just cause and the April 13, 1999 letter should be
the grievant's file.
With respect to the May 12, 1999 letter, the Union notes it was written by
Mr. McLean, the
County's Personnel Director at that time. It also observes that the County's only witness,
Mr. Stapleton, testified he did not discuss the letter with Mr. McLean prior to
its issuance. It
observes that the letter contains twelve paragraphs.
The first two paragraphs are erroneous, according to the Union, as the March 18
discusses expectations and not deficiencies and the April 13 letter is not supported by any
so there is no prior discipline and Mr. Stapleton offered no evidence of any reference to
discipline. The Union argues that the third paragraph is not supported and
Mr. Stapleton testified that
he had no facts to support the allegations in paragraph three. The Union avers that the
unclear as to what McLean was reviewing and there is no foundation for the derogatory
set forth therein. It notes that paragraph five expresses concern over the large number of
which continue to plague the grievant's work and the rest of the letter is assumed by the
identify those errors. The Union observes that paragraph six which states the grievant made
in the zip codes of the Certified Surveyors List was unproved and Mr. Stapleton did not
know if the
grievant was responsible for maintaining the list and who was responsible for verifying the
of the zip codes. The Union points out that paragraph seven is nothing more than a
typos make one look bad and does not allege the grievant made any.
The Union observes that paragraph eight refers to a Brenner zoning permit
claims the grievant filled in "no" in the blank seeking flood plain or wetlands information. It
to Mr. Stapleton's testimony that he did not know if the grievant filled this in or if
Mr. Brenner did
and he had no information whether the "no" was accurate or not. It submits there isn't a
evidence to support this charge. The Union points out paragraph nine refers to a zoning
by Mr. and Mrs. Blum which is incomplete but again, Mr. Stapleton knew nothing
accusation and it is unsubstantiated. According to the Union paragraph ten refers to the
Thompson matter addressed in the April 13, 1999 letter already discussed by the Union.
The Union argues that paragraphs eleven and twelve merely summarize and restate
previously addressed and Mr. Stapleton testified that he had no evidence that it accurately
the grievant's performance in the Department. Given the lack of evidence, the Union
the document must be found to lack just cause and it should be expunged from the grievant's
The County did not file a reply brief.
The Union argues that the County, to establish a prima
case of just cause, must offer
evidence that the matters referenced in the letters did in fact occur and demonstrate
error on the grievant's part. It asserts that the County is of the belief that the mere existence
letters are proof of the allegations therein. It claims this is erroneous and the only support
documents was the testimony of a single witness who neither wrote nor was consulted about
the documents and with respect to the May 12, 1999 letter, was "out of the loop" and knew
nothing about the allegations contained therein. It refers to this witness' testimony that he
evidence of any of the allegations but trusted the judgment of his co-workers that the
occurred and this is the only evidence offered. It submits that the County's arguments are
but empty rhetoric. It questions whether the County had evidence to support its allegations,
so, why did it not present it.
It concludes that simply put there is no evidence against the grievant of anything. It
the grievance be sustained.
The grievance involves three documents. The first document is dated March 18,
letter is not disciplinary as it does not accuse the grievant of any wrongdoing nor does it find
behavior of the grievant is improper. It does not provide a penalty nor does it threaten or
penalty for any alleged violation. It is merely a list of expectations, such as: be on time,
free in final form, don't give advice, etc. This is not disciplinary action. The Union in its
conceded that the March 18, 1999 letter is not a disciplinary letter and just cause need not be
established. Inasmuch as this letter is not disciplinary, Article 15, Section D is not
applicable, so no
violation of the agreement occurred and the letter need not be removed from the grievant's
With respect to the April 13, 1999 letter, it is somewhat ambiguous. It appears to be
to an evaluation in that it contains a positive matter such as the grievant has proven to be
terms of attendance but the bulk of the letter contains instances where behavior could be
It does not state it is a disciplinary letter and does not contain a penalty. It neither threatens
predicts a penalty. From the four corners of the April 13, 1999 letter it appears to be a
performance as the last sentence speaks to another meeting to assist in improving the quality
grievant's performance. The County is entitled to evaluate an employee and point out areas
improvement and such evaluation does not constitute discipline. It is concluded that this
letter is not
discipline but rather an evaluation. It cannot be used as a step in any disciplinary action in
As the April 13, 1999 letter is not disciplinary, the County is not required to demonstrate
for it and there is no violation of Article 15, Section D.
As to the May 12, 1999 letter, it is clearly a disciplinary letter. It states that it is a
review. It accuses the grievant of acts of wrongdoing and unacceptable work and states that
misconduct will result in suspension and/or termination. (Ex-5) The letter is subject to the
requirement of Article 15, Section D and the County has the burden of proving that just
for the letter of reprimand.
A review of the record establishes that the County offered no evidence to support the
of reprimand. The author of the letter did not testify and not a single document was offered
support the allegations of errors or deficiencies on the part of the grievant. The County's
testified that he had no facts to support the allegations that the grievant responded in a false
untruthful manner. (TR-90). He further testified that he had no evidence to support the
in the May 12, 1999 letter. (TR-95, 97, 99). In short, the County failed to prove any of the
allegations set forth in the May 12, 1999 letter and it lacked cause for it.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
The documents dated March 18, 1999 and April 13, 1999 are not disciplinary and
be removed from the grievant's personnel file. The County did not have just cause for the
1999 document and it is directed to expunge this document from the grievant's records.
Dated at Madison, Wisconsin this 19th day of December, 2000.