BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
FOREST COUNTY DEPUTY SHERIFF'S
(Cleaning Allowance Grievance)
Ms. Carol J. Nelson, Executive Director, Northern Tier
UniServ-East, 300 East Pioneer Street, P.O.
Box 9, Crandon, WIisconsin 54520-0009, for the labor organization.
Attys. Bryan Kleinmaier and Dean
Dietrich, Ruder, Ware & Michler, S.C., Attorneys at Law, 500
Third Street, P.O. Box 8050, Wausau, Wisconsin 54402, for the municipal employer.
The Forest County Deputy Sheriff's Association ("the Association") and Forest
County") are parties to a collective bargaining agreement which provides for final and
arbitration of disputes arising thereunder. The Association made a request, in which the
concurred, for the Wisconsin Employment Relations Commission to appoint a member of its
hear and decide a grievance over the interpretation and application of the terms of the
relating to a cleaning allowance. The commission designated Stuart Levitan to serve as the
arbitrator. The parties agreed to a stipulation of facts which they submitted on July 25,
parties submitted written arguments by August 27, 2001, and on September 13, 2001, waived
right to file replies.
The Association did not propose a statement of the issue.
The County proposed the following statement of the issue:
Whether the County violated Section 18.02 of the collective
bargaining agreement when it denied
Kay White's and Bethyn Baldauf's request for a $150.00 cleaning allowance? If so, what is
I state the issue as follows:
Did the County violate the collective bargaining agreement when
it did not pay the Deputized
Clerk/Matrons a $150 cleaning allowance? If so, what is the appropriate remedy?
CLOTHING AND ALLOWANCE
Section 18.01: The County shall provide a new deputy hired into
the Sheriff's Department (after
six months of service) with an initial uniform allowance of $350.00 for the year and $200.00
thereafter. Deputies shall receive the $200.00 clothing allowance in January of each year.
Section 18.02: The County will
allow a cleaning maintenance for each full-time deputy at the rate
of $150.00 per year, or per voucher only.
The parties stipulated to the following statement of facts:
1. The Forest County Deputy Sheriff's Association
("Association") is the exclusive bargaining
agent for all the Forest County ("County") full-time Deputies, Investigators,
Jailer/Dispatchers and Deputized Clerk/Matrons.
2. The 1998-99 Collective
Bargaining Agreement ("Agreement") between the Association and
the County governs the instant Cleaning Allowance Grievance, Grievance No. FCDSA10301.
3. The County accreted the
position of Deputized Clerk/Matron into a bargaining unit consisting
of Deputy Sheriffs and Jailer/Dispatchers in 1995.
4. Kay White and Bethyn
Baldauf are bargaining unit members in the Association.
5. Ms. White and Ms. Baldauf
are employed in Clerk/Matron positions with the County.
6. Clerk/Matrons are deputized
for the purpose of serving legal papers or assisting in the
transport of prisoners to the Courtroom.
7. Clerk/Matrons are not
required to wear uniforms and do not wear uniforms.
8. The County does not
provide an annual $150.00 cleaning allowance to Ms. White and Ms.
9. On January 3, 2001, the
Association filed a Grievance alleging that the County violated the
Agreement when it denied Ms. White and Ms. Baldauf $150.00 for cleaning allowance. The
remedies requested by the Association include payment of a cleaning allowance in the amount
of $150.00 per year to Ms. White and Ms. Baldauf, and any and all appropriate remedies.
10. In a letter dated March 5,
2001, Ms. Carol Nelson, Executive Director of Northern Tier
UniServ East and representative of the Association, informed Attorney Dean
counsel for the County, that Forest County Sheriff Roger Wilson and the Association agreed
to waive Step 1 of the Grievance Procedure on January 3, 2001 and proceed directly to Step
11. In a letter dated March 22,
2001, Attorney Dietrich informed Ms. Nelson that the County's
Personnel Committee formally denied the instant Grievance.
12. In a letter dated March 23,
2001, the Association informed the County that it was filing with
the Wisconsin Employment Relations Commission a request to initiate grievance arbitration
in the instant matter.
13. The County employed
Arthea Lamond as a Deputized Steno Clerk from July 2, 1973 until
February 2, 1991. From July 2, 1973 until February 2, 1991, the County paid
for the cleaning of her uniforms.
14. In her capacity as a
Deputized Steno Clerk, Ms. Lamond wore a uniform and was a certified
deputy with powers to arrest and the authority to carry a firearm.
POSITIONS OF THE
In support of its position that the grievance should be sustained, the Association
and avers as follows:
The County accredited the position of
Deputized Clerk Matron into a bargaining unit consisting
of Deputy Sheriffs and Jailer Dispatchers in 1995 for the convenience of the Sheriff. The
Employment Relations Commission recognized that position within the Deputy Sheriff's
due to the fact that the Clerk Matrons were deputized. The Wisconsin Employment
Commission would not separate the Clerk Matrons and/or the Jailer/Dispatchers Unit from
Deputy Sheriff's Association as long as these positions had arresting powers. There is no
between the limited arresting powers and arresting powers within the Commission. As
the Stipulation, in 1995, the Deputy Clerk Matrons were accepted within this union due to
that they were given arresting powers. The Jailer/Dispatchers who are within this unit, have
powers and they do not carry a firearm.
The former deputized Steno-Clerk, whose
position is now titled Deputized Clerk Matron, was
paid from July, 1973 until February 2, 1991, a cleaning allowance. The Collective
Agreement, Section 18.02, reads as follows: The County will allow a cleaning
maintenance for each
full-time deputy at the rate of $150.00 per year, or per voucher only. Ms. White
and Ms. Baldauf
are full-time Deputies. The Collective Bargaining Agreement, Article XVIII, clearly
clothing and allowance. Section 18.01 reads as follows: The
county shall provide a new deputy
hired into the Sheriff's Department (after six months of
service) with an initial uniform allowance of $350.00 for the year and $200.00 per year
Deputies shall receive the $200.00 clothing allowance in January of each year. That
within the Collective Bargaining Agreement is dealing with the uniformed deputies. Section
clearly states a cleaning maintenance of $150.00/year for full-time Deputies. There is a
separation, Section 18.01; Section 18.02. The past practice of eighteen years in which
the cleaning allowance for the person who was formally in this position, as well as the
language, clearly indicates that Ms. Baldauf and Ms. White have the right to the
payment for cleaning maintenance.
The contractual language and the past
practice are very clear. There is a cleaning allowance for
full-time Deputies. Ms. Baldauf and Ms. White are full-time Deputies. The past practice of
a full-time Deputy who was in this position of over eighteen years shows the intent of the
and the past practice of carrying out the intent of that language.
In support of its position that the grievance should be denied,
the County asserts and avers
It is a well-established arbitral principle that clear and
unambiguous contract language should be
given effect, and the clear and unambiguous language of section 18.02 does not require the
to provided deputized clerk/matrons with a cleaning allowance.
The collective bargaining agreement
provides that the County will allow a cleaning maintenance
"for each full-time deputy." It does not refer to deputized clerk/matrons, and, as the
in an earlier case involving these same parties, deputized clerk/matrons are not full-time
The grievants are not required to wear
uniforms and do not do so. This distinguishes them from
full-time deputies, who are required to wear uniforms. There is no reason for the County to
an annual cleaning allowance to employees who do not have uniforms to clean.
Further, past practice may not overcome
clear and unambiguous contract language. Arbitrators
may use past practice to clarify ambiguous language, but not to amend or modify language
already clean. The language of section 18.02 is clear and ambiguous, and past practice may
used to override it.
Even if section 18.02 were ambiguous and the use of past practice
were appropriate, the past
practice alleged by the association is not applicable because it is not binding. To be binding,
practice must be unequivocal, clearly enunciated and acted upon, readily ascertainable over a
reasonable period of time and established practice accepted by both parties. The past
by the Association do not meet those terms.
From 1973 through 1991, the County
employed Arthea Lamond as a Deputized Steno Clerk.
In that capacity, she was a certified deputy who wore a uniform, had powers of arrest and
to carry a firearm. She received a cleaning allowance for her uniform.
Unlike Lamond, the incumbent Deputized
Clerk/Matrons are not required to wear uniforms and
do not do so. Also unlike Lamond, the incumbents have only limited powers of arrest and
authorized to carry concealed weapons. Lamond's employment thus fails to establish a
practice requiring the County to provide a cleaning allowance to the grievants.
No provision of the collective bargaining
agreement entitles the Deputized Clerk/Matrons to a
cleaning allowance. Since the incumbents are not required to wear uniforms and have no
to clean, to hold that the County must provide a uniform cleaning/maintenance allowance
create an absurd result that cannot be upheld by the arbitrator.
This case is a companion case, of sorts, to an earlier dispute between these parties
request by these same grievants for so-called "Kelly time" off. I denied that grievance
year, explaining as follows:
There are several problems with the association's theory of the
case. The first is the clear
language of the collective bargaining agreement. Section 16.02E does not provide, as the
asserts, that all deputized personnel receive Kelly time; instead, it specifically refers to "each
The clerk/matrons have been deputized for
the specific and limited purpose of serving legal
papers. As their identification badges plainly state, they have only limited powers of arrest
not authorized to carry concealed weapons. They are neither trained nor credentialed as law
enforcement personnel. In the
context of collective bargaining and
contract administration, a "deputized clerk/matron" is not
a deputy sheriff. Forest County, (No. 59143, MA-11194, May 2001). (emphasis
Nothing about the grievants' status has changed. A Deputized
Clerk/Matron is still not a
deputy sheriff. And it is only a "full-time deputy" who receives the $150 annual clothing
as provided for in section 18.02 of the collective bargaining agreement.
The Association's argument as to past practice also fails. The Deputized
Steno/Clerk who served
from 1973 through 1991 was a certified deputy with powers of arrest and the authority to
firearm. The incumbent Deputized Clerk/Matrons have only limited powers of arrest and are
authorized to carry concealed weapons. While the record does not note the bargaining unit
of Leonard's position, the record does not that the current Deputized Clerk/Matron position
accreted into this unit in 1995. Finally, from 1973 through 1991, the Deputized Steno Clerk
uniform, while the grievants do not wear a uniform.
The County correctly states the test for determining whether there is a binding past
significant change in facts from 1973-1991 to the current situation convincingly demonstrate
binding past practice currently exists.
The collective bargaining agreement provides an annual $150 "cleaning
maintenance for each full-time deputy." The Deputized Clerk/Matrons are not full-time
deputies, and are not included in the
cleaning maintenance provided under Section 18.02 of the collective bargaining
the comprehensive change in circumstances between the conditions of employment of the
Steno Clerk who served from 1973 through 1991 and the incumbent Deputized
nullifies and negates any practice which formerly may have existed.
Accordingly, on the basis of the collective bargaining agreement, the record
evidence and the
arguments of the parties, it is my
That the grievance is denied.
Dated at Madison, Wisconsin this 13th day of September, 2001.