BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
CALUMET COUNTY COURTHOUSE
LOCAL 1362, AFSCME, AFL-CIO
(Lisa Fox Grievance)
Shneidman, Myers, Dowling, Blumenfield, Ehlke, Hawks & Domer, by
Attorney Bruce F. Ehlke, 217 South Hamilton Street, Suite 400, P.O.
Box 2155, Madison, Wisconsin 53701-2155, appearing on behalf of Calumet County
Courthouse Employees Local 1362, AFSCME, AFL-CIO.
Davis & Kuelthau, S.C., by Attorney James R.
Macy and Attorney Tony J. Renning,
219 Washington Avenue, P.O. Box 1278, Oshkosh, Wisconsin 54902-1278, on behalf
The original award regarding Grievant Lisa Fox Roberts' (hereafter Roberts)
issued by the undersigned on August 20, 1999. Thereafter, on January 27, 2000, Calumet
Courthouse Employees Local 1362, AFSCME, AFL-CIO (hereafter Union) filed a prohibited
complaint alleging that Calumet County (hereafter County) had failed and refused to
August 20, 1999 award in violation of Sec. 111.70(3)(a)1 and 5, Stats.
On June 6, 2000, the County filed a cross-complaint alleging that the Union had
cooperate in Roberts' treatment and return to work and that it thereby refused and failed to
implement the August 20, 1999 award in violation of Sec. 111.70(3)(b)4 and 6, Stats. After
full hearing and opportunity to brief the prohibited practices, on May 4, 2001, WERC
David E. Shaw issued his decision wherein he found that the August 20, 1999 award was
as to the conditions of Roberts' reinstatement and continued employment with the County is
with respect to areas of dispute regarding the manner of implementation of those conditions."
The complaint case file, transcripts and briefs were thereafter transferred to the
By letter dated July 25, 2001, the undersigned indicated that she believed that the record was
complete but inquired whether the parties wished to file additional briefs and advised the
if they wished to filed further briefs, these should be postmarked August 30, 2001. As the
advised the undersigned by August 4, 2001, that they did not wish to submit any additional
to have any additional hearing, the record herein was closed on August 4, 2001.
To maximize the ability of the parties we serve to utilize the Internet and
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
The essential issue in this case is, did the County comply with the terms of the
August 20, 1999? If not, what is the appropriate remedy?
Following the August 20, 1999 Award, 1/ the parties met on August 26 to discuss the
implementation of that award. At this time, Roberts stated she would enter treatment if the
assessment required it. On August 30, the County sent the following letter to Counselor
Moede at Theda Care Behavioral Health Services (TCBHS):
. . .
Please be advised that Calumet County has
referred an employee to you for an alcohol and other
drug assessment. In the event Ms. Roberts health insurance doesn't cover the assessment,
County will be responsible for the cost of the assessment. I have enclosed for your review,
of the arbitration decision with respect to this employee. I believe it will be helpful to you in
implementing your assessment.
Ms. Roberts will shortly be signing a
release so that Calumet County will be in contact with you
to discuss treatment issues, if needed. I thank you for your anticipated cooperation.
. . .
The County then arranged for Roberts' alcohol assessment at TCBHS to be done on
At this time, neither Roberts nor the Union objected to the assessment being done by
Roberts thereafter was ill and could not attend the September 2nd
assessment and the County
rescheduled it for September 7th. The Union was notified of this as was
Roberts (and neither
1/ All dates hereafter refer to 1999 unless
Roberts was then assessed by TCBHS Counselor Patricia Moede based upon an initial
interview between them on September 7th, AODA diagnostic testing, and a
total of approximately
2.75 hours of interviews between Moede and Roberts as well as Moede's contact of Roberts'
daughter regarding the issue of alcohol in the family. Roberts stated that at their September
meeting after evaluating her AODA test, Moede told her she saw no indication therein of any
problem. 2/ Roberts stated that it was not until their third meeting that Moede stated
a problem with alcohol and that Moede admitted she and her supervisor had conferred on the
and that she had read portions of the transcript. On September 27, Moede issued an
summary 3/ regarding Roberts' AODA assessment which read in relevant part as follows:
. . .
Problems/Symptoms: Client requested an arbitration hearing after she was
terminated from her job with Calumet County. As a result of that arbitration hearing, client
directed to complete an AODA assessment. The assessment consisted of diagnostic testing as
as an interview with the client and collateral. It may be noted that client, at no time,
she had a problem with alcohol use. In fact, until the end, client denied that her alcohol use
a problem in any area of her life. Client's daughter was briefly interviewed by phone and
daughter also states that she did not see her mother's drinking as problematic. However,
daughter did acknowledge that client, on occasion, drank to intoxication. The overwhelming
evidence in determining whether or not client did and does have a problem with alcohol was
presented in the 470 pages of typed testimony from the arbitration hearing. There were too
instances of abusive drinking and too much testimony indicating episodes of intoxication to
Client scored a 39 on the Alcohol Use Profile with no clear evidence of alcohol dependence.
upon everything available to this assessor, client is diagnosed alcohol abuse, continuous with
suspicion of alcohol dependence.
Impression: Client appeared
very emotional and appeared as a victim of the system. She states
she feels misjudged. Client was cooperative throughout this assessment. Client seems to
regarding how her use of alcohol has contributed to her problems.
UPC criteria indicates a need for Level II treatment. When treatment recommendations
were processed with client, she decided she would not follow the recommendations.
305.1, Alcohol Abuse, continuous. Suspected alcohol dependence.
. . .
2/ I have credited
Roberts account herein, giving her the benefit of any doubt.
3/ On September 9,
Corporation Counsel Buchinger sent the transcript and exhibits from the arbitration award
of August 20th to Moede, at Roberts' request.
On October 12, the parties met regarding TCBHS's recommendations that Roberts
enter Level II
treatment and regarding Roberts' employment status. At this time, Roberts' stated she was
to participate in treatment. However, Roberts wanted to receive treatment during the day
she wished to continue to work in her legal process serving business at night. 4/ At this
as confirmed in an October 19th County letter), the County requested that
Roberts complete and sign
a "computer access request" form from the State of Wisconsin in order to gain computer
the "KIDS" program that she needed to use as a child support worker. The County advised
in its October 19th letter, as follows:
. . .
. . . You will not be able to return to work in the Child Support
Agency until you have clearance
from the state which may take from 2-4 weeks.
Please notify me of your intentions
regarding your willingness to proceed with the treatment
program and reinstatement as an employee of Calumet County by October 22, 1999.
If you proceed with reinstatement, you will
be placed on an authorized leave of absence during
the approximate five week primary treatment program and will be eligible to use any of your
paid time off. When your paid time off
has been used, you will be eligible for unpaid time until the
program is completed. At the end
of the primary treatment program, you will be allowed to return to work.
You will be required to participate fully in
the program and comply with all aspects of the
treatment, both during the primary program and any recommended follow-up treatment. The
will be notified of your compliance with the program. If, at any time, you fail to comply or
program, your employment with Calumet County will be terminated in compliance with the
. . .
When you begin the treatment program, you
will be reinstated as an employee of Calumet County
with your health insurance being effective at that time. The employee's share of the
Touchpoint Health (formerly United) is $8.59 per month for single and $23.69 for family
Since we deduct the premium prior to the mouth of coverage, your share of the premium will
based on the month you are reinstated. Please make your choice as to which coverage you
and notify the Payroll and Benefits Manager. These premiums will be deducted from any
for which you will be eligible as soon as you are in a paid status.
Sick leave that you had accrued prior to
your termination will be credited to your account. It is
currently at 83.5 hours. In addition, you are eligible for 11.3 hours of floating holiday for
Vacation for 1999 was paid out to you.
Therefore, you are not eligible for vacation for the
remainder of 1999. Your vacation for 2000 will be prorated on the number of hours you
were in a
paid status during 1999. This is in accordance with the arbitration decision that does not
any back pay for the period you were off work.
. . .
4/ Initially, there were issues regarding who
would pay for the AODA assessment and when Roberts could
attend her treatment, but later it was determined and agreed that Roberts could attend
treatment during the day and
that the County would pay for the assessment, so that these issues became non-issues at least
by the parties' meeting
on October 27th.
On October 27th, the parties met again and resolved the issue of
daytime treatment and that
the County would pay for the assessment, in accord with Roberts wishes. Also discussed at
meeting, were the questions of the completion and submission of the State "computer access
form and the County's request that Roberts grant her permission to attach a copy of the
award to the computer access request form when submitted. The Union also raised
Moede's assessment, Corporation Counsel Buchinger's alleged attempted tainting of the
process and TCBHS's alleged refusal to allow Roberts to view her file there. 5/ At some
during this meeting, Roberts also wondered aloud whether she should seek a second AODA
5/ These collateral issues, in my view, were
not relevant to the issues regarding Roberts' employment status
with the County and her reinstatement thereto.
On October 28th, Roberts went to Recovery-Works Counseling
Services for a second AODA
assessment, (without first notifying either the County or her Union Representative thereof).
assessment was done by Counselor David Schrieter, who gave Roberts normal diagnostic
interviewed her. Schrieter did not contact any collateral witnesses such as family members
friends and he did not receive or consider a copy of the arbitration award or any other
connected therewith. Schrieter issued the following "progress report" dated October
. . .
Initial AODA Assessment: Patient on time
for her scheduled appointment. Problems with work
due to incident at bar. Patient required to take an AODA assessment. Patient signed all
admit forms and release of information. Assessment consisted of oral interview and
(Substance Use Disorders Diagnostic Schedule-IV) which uses the DSM-IV (Diagnostic
Manual-IV) 7 criteria's for determining and diagnosing alcohol and drug dependency. In
be found to be dependent, 3 of 7 categories need to be checked in the last year. Patient
of the questions put to her. There was no diagnosis evident on the SUDDS-IV. Unless
information can be found to support a different finding, no treatment for alcohol, drug
issues would be warranted. No further action is needed at this time, nor taken. Case is
symptoms do begin to appear, patient may well benefit from AODA education. If symptoms
some individual counseling may well help patient resolve any problems she is incurring.
. . .
Roberts did not submit this assessment to the County until she wrote a letter dated
dated to Calumet County Administrator Coordinator John Keuler, which read in relevant part
. . .
I have enclosed a copy of the results of a
alcohol assessment that I completed on October 28,
1999 through Recovery-Works Counseling Services, located in Green Bay, WI. In review of
results you will find that I do not have a drinking and or drug problem.
I have also enclosed the Computer Access
Request form for the state of Wisconsin. Under no
circumstances do I give you or anyone authorization to release any of my medical and or any
of my personal records to the State of Wisconsin.
. . .
On November 23, the County responded to Roberts' November 17th
letter as follows:
. . .
I am in receipt of your November 17, 1999, letter with
attachments; however, we have a reliable
assessment that concludes you need treatment for alcohol dependency.
I will reiterate the County's position on this
matter. You were advised on October 19, 1999, that
you needed to complete a Level II treatment program with ThedaCare. You were given until
October 22, 1999, to respond whether you were in treatment. You asked for a meeting. On
27, 1999, we met to answer your questions about the October 19, 1999, letter. You were
that you needed to complete a Computer Access Request Form and begin the treatment
before you could return to work. You were further advised that the County was no longer
upon evening treatment, that any Level II treatment offered by ThedaCare, or any
treatment provider, would be sufficient. You would be eligible to use available sick leave to
supplement pay for time worked.
Lisa, this matter has to be resolved
immediately. It has been over three months since Arbitrator
Gallagher ruled on your case. You must provide me with a certificate or other written
the ThedaCare, or any other treatment provider approved by Calumet County, showing that
enrolled in a Level II treatment program. All other terms of the October 19, 1999, letter are
Further, you failed to complete the Computer Access Request
Form. We need your mother's
maiden name. I believe this is a security device employed by the State of Wisconsin. Please
my office with that information, and I will fill in that area.
In addition, I note that you stated that you
did not want your "medical" or other "personal"
information released to the State. I intend to send a copy of the arbitration award with your
application. Per your request, I will not advise the State of the results of your assessment
nor the fact
that you are in treatment. This may slow down the process since they are likely to ask
have completed the treatment. However, we will deal with that issue when, and if, it arises.
immediate concern is that you enter treatment at once.
If you have not enrolled in a treatment
program on or before December 1, 1999, we will assume
that you have no intention of complying with the terms of the arbitration award. We will
employment file at that time.
. . .
It should be noted that in testimony herein, Roberts stated that when she received the
November 23rd letter, she thought she had already submitted a completed
Computer Access Request
Form with her November 17th letter. Roberts also admitted herein that she
had not started treatment
by December 1st and that she did not believe she needed the treatment that
had been recommended
by Moede. (Roberts did not contact the County to give them her mother's maiden name, and
complete the Computer Access form, until December 9th.)
On December 1, the Union wrote to the County regarding its (and Roberts') position
concerning Roberts' employment status with the County, as follows:
. . .
I called you to ask if Ms Roberts could go
to a treatment sessions [sic] in the morning, be paid
sick leave etc. under the FMLA and work in the afternoon. You called me later to
deny this request
and state she must finish treatment before she can return to work. You said that
without her having
access to the computer system there was little for her to do. You were not willing to
personnel committee again. Do not misunderstand that offer to go to treatment- the purpose
mitigate while trying to properly straighten out this matter- not that we are in agreement that
to treatment. The Union has always taken the position that the arbitrator's award requires
1. That Ms Roberts get an
assessment before she can go to work and that she "complete the
assessment" where upon she can return to work.
If the assessment had a recommendation for
treatment, she must successfully complete the
treatment, however she is to be working in the meantime.
As of this date, you have not allowed her to return to work,
although she has had two
assessments. Since the award you have forced her to go to a [sic] assessor of your selection,
of the coverage of her insurance. The award only requires a "successful completion of
notice to the employer. Prior to her participation at Thedacare, you required she sign certain
from the therapist to the County. The County Administrator, the Corporation Council, (her
supervisor) and you have all had contract [sic] with the therapist. It is my understanding that
contract [sic] was initiated by you. Ms Roberts was denied the ability to review her file at
In those contacts, you have expand [sic] beyond the scope of these releases, and so tainted
therapeutic process, and the initial assessment, that another assessment was gotten by Ms
We believe that this latter assessment, by a creditable therapist, which indicated no treatment
necessary, should be honored.
We therefore demand that Ms Robert be returned to work
. . .
On December 9, Roberts called the County Personnel office, stated her mother's
and spelled it for Ms. Davey, Personnel Director. Roberts also stated that everything she
in her previous letter still applied and she did not want anything from her personnel file sent
State of Wisconsin with her Computer Access Request Form. Davey stated that the County
to send the arbitration decision with that form and Roberts stated she considered the award
her personnel file. 6/
6/ The County submitted testimonial evidence
regarding Roberts activities after the issuance of the Award.
I find this evidence irrelevant.
Thomas Meier, a Department of Workforce Development, Division of Economic
employee, stated herein that he told Buchinger to send the Arbitration Award along with
completed Access form. Thereafter, Meier stated that he found the Award on the internet.
stated that he did not recall whether he told the County that he already had the Arbitration
Furthermore, Meier stated that no decision was ever made by the State of Wisconsin whether
Roberts a security clearance to use the "KIDS" program,
because DWD never received a completed Computer Access Request form from
Roberts or the
County. Finally, Meier stated that based on the Arbitration Award herein, he had concerns
granting "KIDS" access to Roberts.
POSITIONS OF THE PARTIES
As Examiner Shaw accurately described the briefs of the parties in the underlying
because the parties chose not to file any additional briefs before me in this forum, I conclude
description of the briefs by Examiner Shaw is fair and reasonable and I am quoting it in its
. . .
The Union asserts that the Award is clear
that Roberts' reinstatement was conditioned only
on her "completion of assessment for alcoholism" and that no other condition on her
was mentioned. Roberts underwent two assessments, and even though the first assessment
sham, she satisfied the condition for reinstatement. The County imposed conditions on
reinstatement that were in addition to those established by the Arbitrator, and thereby failed
implement the Award. Further, the first assessment was based on a selective review of the
from the arbitration hearing, rather than on the SUDDS-IV schedule and DSM-IV criteria,
was not a medically-supportable basis for the diagnosis and recommended treatment. On the
hand, the second assessment was performed based upon the appropriate criteria and did not
in a finding of alcohol abuse or need for treatment, but was ignored by the County.
The County also imposed additional
conditions to Roberts' reinstatement, requiring that she
first complete five weeks of preliminary treatment and that she receive a favorable response
State to the filing of a Computer Access Request, before she would be permitted to return to
The County then insisted on submitting a copy of the Award along with the request in order
sabotage her ability to receive a positive response from the State.
In its reply brief, the Union disputes the
County's factual assertions. Roberts and Isferding
did not meet with the first assessor for the purpose of persuading her to change her
rather, they went there to discuss the treatment and obtain a copy of the records that were
doing the assessment. Also disputed is the assertion that Roberts had a right to appeal the
assessment, but elected not to, when Roberts was never informed she had
such a right. The Union also disputes the assertion that the
second assessment was less credible
than the first and that the Union did not discuss the possibility of having a second assessment
the County's representatives prior to obtaining the results from the second assessment. Last,
Union denies that Roberts refused to participate in the treatment. Roberts' conduct and her
to reach agreement on the treatment and when she would participate in such treatment
willingness to cooperate.
The Union again asserts the first
assessment was unreliable and that Roberts' behavior does
not meet the established criteria for diagnosing alcohol abuse. Conversely, the assessment
by the second assessor utilized those criteria and was valid, finding no diagnosis of alcohol
that treatment was not warranted. Again, the County added conditions for Roberts'
beyond what the Arbitrator imposed.
The Union requests that the County be
ordered to reinstate Roberts immediately and pay back
wages, plus interest, from the date of her discharge (pursuant to the parties' Agreement) or
alternative, from the date she completed the first assessment, to take all steps necessary to
Roberts' Computer Access Request approved by the State, and to accept the second
in the alternative, participate in good faith with the Union in selecting a third assessor to
reliable "tie-breaker" assessment.
The County asserts that the Award clearly
and unambiguously provides that Roberts must
agree to an assessment and treatment as a condition precedent to her reinstatement. The
expressly used the word "and", rather than "or", thus, a strong argument exists that Roberts
required to actually complete the "assessment and all necessary treatment" prior to being
However, after agreeing to, and undergoing, the first assessment, Roberts refused to accept
results and during the assessment itself, made clear to the assessor she would not attend any
treatment. It is the Union and Roberts that have frustrated the County's efforts to implement
Award. Thus, the Union's complaint is without merit.
Next, the County asserts it did not violate
Sec. 111.70(3)(a)1, Stats., by not returning Roberts
to work, as she failed to comply with the conditions precedent to her return set forth in the
Further, even where employer action may have a tendency to interfere with an employee's
of their rights under Sec. 111.70.02, Stats., the Commission has not found a violation where
action was based on a valid business reason. Here, the County's actions were based on the
which clearly constitutes a valid business reason.
The County also asserts it has not violated Secs.
and 7, Stats., by not returning
Roberts to work, again, because she failed to comply with the conditions set forth in the
her being returned to work. The Union has the burden of proving by a clear and satisfactory
preponderance of the evidence that the County has failed to accept and implement Arbitrator
Gallagher's Award in violation of Secs. 111.70(3)(a)5 and 7, Stats. 1/
1/ The Union alleges violations of both
Secs. 111.70(3)(a)5 and 7, Stats. Similarly, the County
alleges violations of both Secs. 111.70(3)(b)4 and 6, Stats. However,
Sec. 111.70(3)(a)7, Stats. and
111.70(3)(b)6, Stats., pertain only to interest-arbitration awards issued pursuant to
The Union failed to meet that burden.
Upon receipt of the Award, the County immediately
arranged for an assessment to be conducted. Neither the Union or Roberts objected to the
selected to do the assessment, nor to the results of the assessment. The County made every
to ensure that the assessment was fair and objective and upon receipt of the results of the
offered to reinstate Roberts contingent upon her agreeing to the initial steps of the
treatment (as required by the clear language of the Award) and her completing the
application for the
required security clearance in order to access the computer system.
It is the Union, not the County, that has
refused to accept and implement the Award by its
refusal to cooperate with the County as relates to Roberts' treatment and return to work. In
regard, Roberts refused to agree to any treatment and she and Isferding inappropriately
to persuade the person who had performed the assessment to change her assessment and
recommended treatment. Further, Roberts failed to complete the application for security
to use the computer system, which is required in order to perform her job. Roberts also
authorize the County to submit a copy of the Award, as requested by the State agency
for granting the security clearance. Despite already having a credible assessment, and
discussions, negotiations or input from the County, Roberts sought and obtained a second
in an attempt to frustrate the County's attempts to implement the Award. Further, Roberts
to abuse alcohol and convey confidential information to the public.
In its reply brief, the County first asserts
that Davey and Buchinger should be dismissed as
parties to the Union's complaint. The Union amended its complaint at hearing to remove
a respondent. As to Buchinger, the
evidence shows that she was, at all times, merely acting as a
representative of the County and
there is no evidence to support the Union's allegations that she inappropriately attempted to
the first assessment. The County reiterates its assertions that the Award clearly required
agree to both an alcohol assessment and treatment as a condition precedent to
reinstatement and that
Roberts refused to do so. Conversely, the County made a good faith effort to implement the
With regard to the Union's requested
relief, the County asserts that an award of backpay
would be contrary to the Award. As to taking steps to ensure Roberts obtains the required
clearance, the County could not have done more than it did. Finally, the second assessment
credibility and the County need not accept it.
. . .
The parties have both argued in the prohibited practice complaint cases that the
by the undersigned on August 20, 1999, is clear and unambiguous. However, the parties
the language of my award in conflicting ways. It is significant that neither party requested
retain jurisdiction herein in the underlying arbitration case.
For purposes of clarity herein, I quote, as follows from the Discussion and Award
of that August 20, 1999 decision:
. . .
I turn now to the appropriate level of punishment for Fox's
breaches of confidentiality and
her mistreatment of fellow employes. This Arbitrator has rarely disturbed an employer's
determination, in its discretion, of the level of discipline to be meted out. However, in this
where Fox's work record was clean and she had been employed for 13 years, I believe
is too harsh a penalty even for the serious misconduct she engaged in. In my view, Fox
another chance, the chance the County should have given her, (similar to the chance it
offered her, and which she rejected) to complete assessment and treatment for her problems
alcohol and to return to work. Given Fox's proven misconduct, however, I have not ordered
backpay and I have made the reinstatement conditional upon her completion of assessment
addiction. I have also made it clear in my Award that any further breach of confidentiality
after her return to work can result in her immediate discharge. Furthermore, if Fox refuses
assessment and treatment for her problem with alcohol, the
County need not reinstate her, as her
reinstatement and continued employment are also expressly conditioned upon her completion
assessment and all necessary treatment. This award represents a last chance for Ms. Fox.
Based upon the relevant evidence and
argument herein, I issue the following
The County violated the collective
bargaining agreement when it terminated Lisa Fox. Fox
shall be reinstated, without backpay but with full seniority, to her former position or a
substantially similar thereto conditioned upon her completion of assessment for alcoholism.
reinstatement and continued employment after her return to work are also expressly
Fox's successful completion of any recommended treatment for her problem with alcohol
reinstatement. In addition, should Fox commit any breach of confidentiality after her return
the County may discharge her forthwith pursuant to this Award. If Fox refuses to agree to
assessment and treatment, her discharge shall stand.
. . .
The Award herein states that Roberts should first be assessed for alcoholism before
be reinstated with full seniority but without back pay. The record facts here show that
allowed to reschedule the assessment due to illness and that thereafter she was assessed at
without any objection being lodged thereto. Buchinger's August 30th
letter to Moede indicated that
the County would pay for the assessment if Robert's insurance would not.
The Moede assessment, dated September 27, essentially concluded that although
tested at 39 points (with no clear evidence of alcohol dependence), the 470 page transcript of
arbitration proceeding contained "too many instances of abusive drinking and too much
indicating episodes of intoxication to ignore." Moede also considered a contact with
daughter in which the daughter admitted that Roberts often drank to intoxication but that the
daughter did not feel her mother's drinking was a problem. Moede concluded that Roberts
need of Level II treatment, based on all of the information available to Moede.
The Union has objected to Moede's assessment as "a sham," "not medically
"unreliable." I note that the Award did not provide for Roberts or the Union to make or
objection to the assessment done. In all of the circumstances of this case and as neither the
nor Roberts objected to the assessment being conducted by TCBHS or requested to discuss
agencies to perform the assessment prior to TCBHS performing the assessment, the County's
selection of TCBHS as the agency (which was within
its insurance coverage) to do the assessment was reasonable and constituted an
interpretation of the Award. Thus, Roberts satisfied the Award requirement of completing
The Union objected to Corporation Counsel Buchinger's contacts with Moede. In my
the record does not show that Buchinger had improper contact with Moede as alleged.
Moede did not recall any such contact from Buchinger. Also, Buchinger's contacts were
by the County. Buchinger's sending Moede the underlying arbitration award was appropriate
explain the reason for the assessment. Further, the award could constitute collateral
appropriately considered on a regular basis by AODA assessors. 7/
7/ Indeed, Roberts' chosen counselor,
Schreiter, admitted that collateral information is appropriately
considered in AODA assessment (although he considered none in Roberts' case). Schreiter
also admitted herein
that he might reconsider his diagnosis based on collateral information. In addition, Schreiter
stated that it is
normal for AODA counselors to confer with their supervisors about their cases, as Moede
did in this case. I note
that Schreiter, in his assessment, stated: "unless collateral information can be found to
support a different finding,
no treatment for alcohol, drug dependence issues would be warranted." I note that Schreiter
never attempted to
obtain and in fact rejected collateral information offered by Roberts.
As the Award did not address contacts between the County and the AODA assessment
as the contacts made were not unreasonable, I do not find that the County violated the Award
by contacting TCBHS as it did.
The Union objected to the fact that TCBHS refused to give copies of Roberts' records
Union or Roberts after Moede completed her assessment. The Award does not address this
it is not relevant to this case. 8/ Other issues, including treatment time and payment for the
assessment and treatment, were all resolved in Roberts' favor so that these issues also
became non-issues as early as October 27th. These issues also were not
addressed in the Award.
8/ I note that neither the Union nor Roberts
requested the County's help in gaining these records nor took any
other action to compel TCBHS to release these records. I find this issue to be completely
collateral to this case and
it was not a reason to discount TCBHS's assessment of Roberts.
I note that the Union objected to the County's refusal to immediately and fully
Roberts to her job as soon as she completed the TCBHS assessment. In my view, this is a
which the parties have a legitimate disagreement regarding when reinstatement should have
because the Discussion section of my decision could be construed to conflict
with the Award section
in light of evidence revealed herein but not proffered in the Arbitration case.
On this point, I note that at both the October 12th and
27th, meetings between the parties, the
County expressed its fear that there would be a problem gaining security clearance for
work with the "KIDS" program. Indeed, the record is clear that it is necessary for the State
approve all child support agency workers in advance if they are to work with the "KIDS"
It is also clear that the County has no control over how and under what conditions the State
approve a child support worker's access to "KIDS."
In my view, the County's action in partially reinstating Roberts was not unreasonable
not violate the terms of the Award herein. As is always the case, the details of reinstatement
be known fully to anyone until the attempt to reinstate is made, making a detailed award in
extremely difficult to express. As the full reinstatement of Roberts to a child support job
she first be granted security clearance to the "KIDS" program, I find that the County's
partially reinstate Roberts was reasonable, under the circumstances as the granting of security
clearance under "KIDS" is not within the County's control in any way.
As I have previously found, it was reasonable for the County to select the AODA
agency. In my view, Roberts' decision to seek a "second opinion" can have no effect on this
given the fact that the Award did not provide for a "second opinion" AODA assessment if
was unhappy with the first assessment done. Therefore, the evidence regarding the
AODA assessment is not relevant.
The Union has also objected to the attachment of the Award to Roberts' Computer
Request form. Whether or not the County made it clear to the Union and Roberts that DWD
the Award to be attached to Roberts' Access form for DWD consideration, the County had
but to submit the Award, as the State's requirements in this area are totally out of the
control. The Award herein did not address this issue, there being no record evidence
thereon. In all
the circumstances here, I cannot find that the County acted unreasonably or that it violated
by its position on this point.
It is clear that Roberts and the Union became concerned with two issues not
reasonably anticipated by the Award which were not resolved to their satisfaction with the
the value of a second opinion AODA assessment and the attachment of the Award to the
form. It is also clear that the County was reasonably concerned with how to properly
Roberts given the DWD requirement that the Access form (which Roberts inadvertently
complete) be completed and submitted to DWD. It is in the context of these disputes
parties, that Roberts failed to comply with Moede's assessment that she enter Level II
she failed to complete the Access form (which was necessary for her re-employment as a
Roberts stated herein that when she received the November 23rd
letter from the County "I
thought to myself I don't know what they're talking about. I filled out the form. I handed it
my cover letter. Nobody said I only have an "H" in here. I did not do this intentionally."
Roberts also stated that she did not need treatment but that if
Moede's assessment were to be the final word on the matter, she would have no
treatment. (Tr. 288) I note also that Roberts told the County on October 12, that she was
to enter treatment.
The Award section of the August 20, 2000 decision states that Roberts
should have been
"reinstated without backpay . . . upon her completion of assessment for alcoholism."
completed AODA assessment at TCBHS. However, the County could not accomplish
reinstatement until Roberts completed the Computer Access Request From and she was
DWD to use the "KIDS" program, facts not anticipated or considered in the Award and out
The question then arises whether, pursuant to the Award, the County was privileged
terminate Roberts because she failed to submit the completed Access form and enter
December 1, 2000. In the circumstances of this case, I do not believe the County was
this way. The facts here demonstrate that Roberts was unaware she had failed to properly
the Computer Access Request form prior to December 1st and she stated
that she never intended to
submit an incomplete Access form. In these circumstances, and given the fact that sever
existed between the parties which were not (and could not have been addressed by the
Award), it is
fair to give Roberts one last chance.
It should be clear from this Supplemental Award that no second opinions may be
no other objections may be lodged by Roberts or the Union. The intent of this Supplemental
is to give Roberts one opportunity to enter Level II treatment (either at TCBHS or any other
treatment provider approved by the County) within 14 calendar days after the date of this
If Roberts fails to enter treatment as described herein, the County can terminate her pursuant
Supplemental Award without recourse to the contractual grievance procedure.
To assure that there are no lingering questions, it should be noted that the County can
the original Award in this case to Roberts' Computer Access Request form and that upon
approval to use the "KIDS" program, she shall be fully reinstated to her former child support
or to one substantially similar thereto. 9/ If the County no longer has Roberts' completed
Roberts must complete another form for the County to submit to DWD. It is clear that the
has no control over DWD's procedures or decisions to grant or deny "KIDS" access.
Roberts is denied "KIDS" access, the County has no obligation to reinstate Roberts to a child
9/ As no issue of Roberts' possible
reinstatement to any other County positions was before me in the original
grievance, I make no finding herein and have no jurisdiction over such a
It is my belief that this Supplemental Award has dealt with all issues raised by the
regarding how to properly implement the original Award. 10/ I will, however, retain
jurisdiction over the remedy only for 30 calendar days after the date of this
should any further questions arise.
10/ The County proffered evidence in the
complaint case that Roberts had revealed confidential information
relating to child support cases after her discharge which I have found irrelevant. It has,
therefore, not been
Based on the above, I issue the following
SUPPLEMENTAL AWARD 11/
The County failed to comply with the terms of the August 20, 1999 Award by
Roberts effective December 1, 1999.
If Roberts enters Level II treatment either at TCBHS or any other provider approved
County within 14 calendar days after the date of this Supplemental Award, she shall be
her former position in the Child Support Agency or a substantially similar position with full
but no backpay. If Roberts fails or refuses to timely enter treatment as described above, the
can terminate her employment pursuant to this Supplemental Award without recourse to the
contractual grievance procedure. In addition, if Roberts is denied access to "KIDS," the
have no obligation to reinstate her to a child support worker position. Roberts must enter
complete Level II treatment, as Roberts' reinstatement and continued employment are
conditioned thereon. Finally, as stated in the original Award, should Roberts "commit any
confidentiality after her return to work, the County may discharge her forthwith pursuant to
11/ I hereby retain jurisdiction of this case for
30 calendar days from the date of this Supplemental Award
regarding the remedy herein only.
Dated at Oshkosh, Wisconsin, this 24th day of October, 2001.
Sharon A. Gallagher, Arbitrator