BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GREEN LAKE COUNTY
GREEN LAKE COUNTY COURTHOUSE
LOCAL 514-C, AFSCME, AFL-CIO
Mr. Lee Gierke, Staff Representative, Local 514-C, AFSCME,
AFL-CIO, P.O. Box 2236, Fond du Lac, Wisconsin 54936-2236, appearing on behalf of the
Attorney John B. Selsing, Corporation Counsel, Green Lake
County, 120 East Huron Street, Berlin, Wisconsin 54923, appearing on behalf of Green
Green Lake County, henceforth County or Employer, and Green
Lake County Courthouse Employees Local 514-C, AFSCME, AFL-CIO,
hereafter Union, are parties to a collective bargaining agreement
which provides for final and binding grievance arbitration. The
Union, with the concurrence of the County, requested the Wisconsin
Employment Relations Commission to appoint a member of its staff to
hear and decide the instant grievance. Coleen A. Burns was so
appointed on August 16, 2000. The hearing was held in Green Lake,
Wisconsin, on October 3, 2000. The record was closed on December
6, 2000, upon receipt of post-hearing written arguments.
The parties stipulated to the following statement of the
Did Green Lake County have just cause to discipline Wendy
Grahn by requiring her to pay back wages for 47.45 hours?
If not, what is the remedy?
6201 Page 2
The mutual interest of the Employer and
the Employees is
recognized by this Agreement for the operation of the various
departments under methods that will promote safety to the
Employees, economy of operations, cleanliness and proper care of
equipment and the protection of property, the facilities of a fair
and peaceful adjustment of differences that may arise from time to
time, the promulgating of rules and regulations and ethical conduct
of business and relations between the Employer and the Employees
and to this end have reached this Agreement.
ARTICLE 2 -
. . .
B. The Employer and Green Lake
county retain and reserve the
sole right to manage its affairs in accordance with all applicable
laws, resolutions, ordinances and regulations. Included in this
responsibility, but not limited thereto, is the right to determine
the number and classification of Employees, the services to be
performed by them; the right to manage and direct the work force;
the right to establish qualifications for hire and to test and
judge such qualifications; the right to hire, promote and retain
Employees; the right to transfer and assign Employees; the right to
demote, suspend, discharge for cause or take other disciplinary
action subject to the terms of this AGREEMENT and the grievance
procedure; the right to release Employees from duties because of
lack of work or lack of funds; the right to maintain because of
lack of work or lack of funds; the right to maintain efficiency of
operations by determining the method, means and personnel by which
such operations are conducted, including the right to contract out
provided that the exercise of this right shall not result in layoff
of permanent Employees (Employees other than part-time, seasonal or
probationary) and provided that in the case of the layoff of non-permanent Employees, that
the Employer shall have the burden of
proving that the exercise of such right will result in a more
economical operation of the department, and to take whatever
actions are reasonable and necessary to carry out the duties and
responsibilities of the Employer.
In addition to the foregoing, the Employer
and Green Lake
County reserve the right to make reasonable rules and regulations
relating to personnel policy procedures and practices and matters
relating to working conditions giving due regard to the obligations
imposed by this AGREEMENT. The
Employer shall give reasonable notice of new rules and
regulations or changes therein as promulgated by it to the
Employees. Any disagreement over the meaning or applications of
such rules and regulations may be the subject of a grievance.
However, the Employer and Green Lake County reserve total
discretion with respect to the function or mission of the County,
its budget, organization and the technology of performing the work.
These rights shall not be abridged or modified except as
specifically provided for by the terms of this AGREEMENT.
C. The Employees, Management
and the Elected Officials shall
show respect to each other, fellow employees and the general
On April 19, 2000, County Clerk Margaret Bostelmann,
behalf of the County Personnel Committee, issued the following
letter to Wendy Grahn:
On Thursday, April 13, 2000, the Personnel Committee
the information referred by the Health and Human Service Board
regarding inappropriate use of the County phone system. Evidence
was presented documenting personal use of the phone system in the
amount of $324.26 and 40.46 hours of time from September of 1999 to
March 25, 2000. Additional charges and time will be know (sic)
after the April bill is received later this month.
The Personnel Committee has asked me to
issue the following
reprimand: The amounts of all phone charges relating to personal
use of the tool-free (sic) line are to be paid back to the County
in full. The total amount will be known when the phone bill is
received at the end of this month. Charges as of March 25th are
The amount of time spent on the phone,
40.46 hours plus the
additional hours on the current phone bill will also be paid back
to the County. Charges as of March 25th are $483.02 (current
hourly rate of $11.9976 x 40.26).
The amount must be paid in full prior to
the end of this year.
Monthly payments of not less than $100 are to be made to the County
Clerk. The first payment is to be made in May.
Receiving any personal phone calls on the 1-800 Health
Services phone line is a violation of policy and will not be
tolerated. All personal calls received during work time should be
few in numbers (sic) and short in duration.
You are advised that any other disciplinary
conduct may result
in further reprimand, suspension or discharge. The Committee also
reserves the right to refer this matter to the District Attorney's
If you have any questions please contact
In a letter dated September 27, 2000, County Clerk
advised AFSCME Staff Representative Lee Gierke as follows:
Thank you for your call yesterday asking me to clarify the
amount of the charges for the phone calls received by Wendy Grahn
on the 1-800 line and the amount of time to be paid back.
As we noted there were two typographical
errors in my original
The Total cost of the phone charges on the
1-800 number as of
March 25, 2000 was $326.24. The charges after that date were
$50.31 for a total of $376.55.
The total time as of March
25th was 40.46 hours and 6.99 hours
after that date for a total of 47.45 hours. Total cost of time is
47.45 hours x 11.9976 wage for a cost of $569.27.
This brings the overall total ($376.55 plus
I hope this clarifies this matter. If you
need any additional
information, please let me know.
A grievance was filed on the disciplinary action. The
grievance was denied at all steps of the grievance procedure.
Thereafter, the grievance was submitted to arbitration.
POSITIONS OF THE PARTIES
As established by the testimony of the County Clerk, the
County is not insensitive to the fact that employees may need to
make emergency telephone calls of a personal nature. Under the
practice of the County, such telephone calls must be short in
duration and limited to emergency situations. Additionally, the
employee is required to reimburse the County for the cost of any
telephone call that exceeds 50 cents.
From October 1999 through April 2000, the
the express written policy of the County in her use of County
phones for personal business. This violation occurred while the
Grievant was on duty and at times when the Grievant was not
scheduled to work.
The Grievant's use of the County phone during work time
resulted in the County paying for something that it was not
receiving, i.e., an employee functioning at their full capacity
while on the job. The Grievant's conduct in using a County phone
for private business for a long duration and without an emergency
purpose is inexcusable. To claim wages for time that was used to
conduct personal business is fraudulent.
The Grievant entered County premises at times that she was not
authorized to be on County premises for the purposes of using the
County phone lines. Inasmuch as these premises house material of
a confidential nature, the County has a legitimate concern that
County clients will perceive that there has been a breach of
The County Personnel Committee, who reviewed the matter in
great detail, considered the Grievant's conduct to be a serious
violation of the County's trust and work rules. The County
Personnel Committee considered the Grievant's conduct to be
criminal in that she entered the County's premises without
authorization and used the County's property and funds for personal
enjoyment. The County Personnel Committee discussed that, if the
matter had been turned over to the District Attorney, the Court
would have very likely ordered restitution to the County.
In deciding the appropriate penalty for the Grievant's
misconduct, the County considered the level of misconduct and the
Grievant's employment history with the County. To send a message
that employees are free to do what they want while in work status
so long as they perform the basics of their job would create a very
poor work environment.
The County did not act beyond its authority in imposing the
discipline of asking for the return of wages for the time that the
Grievant did not perform her work duties. The grievance
should be denied. The Arbitrator should affirm the actions of the
Personnel Committee or, in the alternative, determine an
appropriate remedy for the loss that the County has incurred as a
result of the Grievant's misconduct.
The Union does not dispute that the Grievant engaged in
misconduct. The Union does not take issue with the County's right
to ask the Grievant to reimburse the County for her personal use of
the County's telephone. Nor does the Union dispute the County's
right to issue a written letter of reprimand. The Union, however,
disputes the right of the County to direct the Grievant to
reimburse the County for the hours that the County alleges the
Grievant was on the telephone conducting personal business.
The County has never disciplined anyone for the personal use
of telephones at either the local or long distance level. The
County has only required the repayment of long distance costs.
When the Grievant was on the phone during work time, the
Grievant continued to perform her normal job duties, i.e.,
answering the telephone; taking telephone messages; receiving
members of the public; typing and keyboarding. The Grievant
performed services for the County and is contractually entitled to
be paid for these services.
The labor contract does not permit the imposition of the
"restitution" penalty sought by the County. Nor is such a penalty
commonly accepted in arbitration. Additionally, such a penalty
would be contrary to the wage and hour laws of the State of
Wisconsin. The Grievant performed services for the County and is
contractually entitled to be paid for performing these services.
The Grievant, who has an exemplary work record over twenty
years of service, did not realize that her use of the County long
distance phone line was costing the County any additional money.
At the time, the Grievant's boyfriend was supporting her as she
went through a divorce.
The County violated the collective bargaining agreement by
implementing the penalty of paying back wages. Therefore, the
grievance should be sustained.
It is the function of the grievance Arbitrator to interpret
and enforce the parties' collective bargaining agreement. The
County's assertion that the Grievant has violated a
criminal statute for which restitution is an appropriate remedy, or
the Union's assertion that the County has violated wage and hour
laws, are matters to be decided by a court or administrative
agency, and not by the grievance Arbitrator.
The Union acknowledges that the Grievant has engaged in
misconduct. The County made a determination as to the appropriate
level of discipline for this misconduct when it issued the
reprimand letter of April 19, 2000. The Union contests only one
aspect of this reprimand letter. Specifically, the Union denies
that the County has just cause to discipline the Grievant by
requiring the Grievant to repay wages for the 47.45 hours that the
County alleges that the Grievant was on the telephone conversing
with her boyfriend, rather than performing her work duties. 1/
1/ The County relies upon two arbitration
awards: Dayton Power
and Light Company, 63 LA 653 (1974) and Knights of Columbus, 56 LA
1072 (1971). In the former, the Board of Arbitration found that it
was appropriate to send an employee home without pay when the
employee refused to perform work that could have been performed in
a reasonably safe manner. In the latter case, the Board of
Arbitration found that it was appropriate to not pay employees who
had abandoned their work area for coldness, when the coldness posed
no imminent danger to the health or safety of the employees. The
Grievant did not refuse to perform any work assignment, nor did she
abandon her work area. Inasmuch as neither case is on point,
neither case supports the County's assertion that it has a right to
reclaim wages from the Grievant.
The Grievant occupies the position of Receptionist in the
County's Department of Human Services. When the parties negotiated
Appendices A, B, and C of their 1998-2000 labor contract, they
agreed upon an hourly wage rate to be paid for Receptionist work.
Thus, the Grievant has a contractual right to receive her
Receptionist hourly wage rate for all hours in which she performs
her normal Receptionist duties.
The Grievant's normal Receptionist duties are answering the
telephone; taking telephone messages; routing telephone calls and
telephone messages; responding to inquiries from clients and
members of the public who come to her window; making appointments;
typing and keyboarding. The Grievant claims that she performed her
normal work duties during the 47.45 hours at issue by placing her
boyfriend on hold, as necessary, to respond to telephone calls and
inquiries at the window; and by typing and keyboarding while she
was on the telephone.
During the relevant time period, September 1999 through April
2000, the County did not receive any complaint that the Grievant
was not answering telephone calls or responding to inquiries.
Indeed, the only complaint received by the County, in the latter
part of March,
2000, was from a client who telephoned the County to complain that
the Grievant was talking on the phone to her boyfriend while the
client was waiting for an appointment. This complaint triggered
the County investigation that resulted in the discipline of the
As the Grievant's immediate supervisor, LeRoy Dissing,
acknowledged at hearing, if the Grievant's use of the County
telephone line for personal business had precluded the Grievant
from performing the majority of her job duties, it is likely that
he would have received more than the one complaint about the
Grievant. The undersigned is persuaded that the lack of complaints
lends credence to the Grievant's claim that she placed her
boyfriend on hold, as necessary to respond to other telephone calls
At hearing, Dissing stated that the Grievant does multi-tasking very well. More
specifically, Dissing stated that the
Grievant has the ability to respond to questions and provide
information to one individual while she is on the telephone with
another individual. The Grievant's written evaluation of April 1,
1999, which was prepared by Dissing, includes the following:
Ms. Grahn has the distinct ability to stay focused while
performing multiple functions. She prioritizes calls from the
public, assists walk-ins, and staff asking for information. In
addition, she types and inputs SAL's for the CHMC system while
performing the agency's receptionist duties.
Dissing's testimony, as well as Dissing's written evaluation of
Grievant, demonstrates that the Grievant is adept at multi-tasking.
The evidence of the Grievant's skill at multi-tasking lends
credence to the Grievant's testimony that, when she was conversing
with her boyfriend, she continued to perform her normal
Receptionist duties of typing and keyboarding.
In summary, the record demonstrates that, for 47.45 hours from
September 1999 through April 2000, the County's telephone line was
used by the Grievant for personal business. The record, however,
provides no reasonable basis to discredit the Grievant's testimony
that, during these 47.45 hours, she continued to perform her normal
As discussed above, the County is contractually required to
pay the Grievant her Receptionist hourly wage for all hours that
the Grievant performed her normal Receptionist duties. Inasmuch as
the record demonstrates that the Grievant performed her normal
Receptionist duties during the 47.45 hours at issue, the County's
requirement that the Grievant repay 47.45 hours of wages violates
the parties' collective bargaining agreement. Thus, the County
does not have just cause to discipline the Grievant by requiring
her to repay 47.45 hours of wages.
The County does not have just cause to discipline the Grievant
by requiring her to repay 47.45 hours of wages. The appropriate
remedy for this unjust discipline is to (1) order the County to
remove the requirement that the Grievant repay wages from the
reprimand letter of April 19, 2000, and from all other of the
Grievant's personnel files and (2) order the County to make the
Grievant whole for any wages that the Grievant repaid as a result
of the County's unjust discipline.
The County suggests that, if the Arbitrator concludes that the
County does not have the authority to require reimbursement of the
47.45 hours, then the Arbitrator should impose some alternative
discipline upon the Grievant. The County, however, is mistaken in
its suggestion. The County required the repayment of wages
because it believed that it had paid for time that was not worked.
As discussed above, the record does not demonstrate that the County
has paid for time that was not worked. Inasmuch as the County has
failed to prove that the Grievant engaged in the misconduct for
which the repayment of wages was required, neither the County, nor
the Arbitrator, may impose an alternative discipline upon the
Based upon the above, and the record as a whole, the
undersigned issues the following:
1. Green Lake County does not have just cause to discipline
Wendy Grahn by requiring her to pay back wages for 47.45 hours.
2. In remedy of the County's unjust discipline, the County is
ordered to immediately:
a) remove the requirement that the Grievant pay back
from the reprimand letter of April 19, 2000, and all other of
the Grievant's personnel files; and
b) make the Grievant whole for any
wages repaid to the County
by the Grievant as a result of the County's unjust discipline.
Dated at Madison, Wisconsin, this 8th day of March, 2001.
Coleen A. Burns, Arbitrator