BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
EMPLOYEE RELATIONS DIVISION
Mr. Richard Thal, General Counsel, Wisconsin
Professional Police Association/Law Enforcement
Employee Relations Division by 340 Coyier Lane, Madison, Wisconsin, appearing on behalf
County Courthouse Employees Association.
Ruder, Ware & Michler, S.C. by Attorney S. Bryan
Kleinmaier, 500 Third Street, Suite 700, P.O.
Box 8050, Wausau, Wisconsin, appearing on behalf of Forest County.
On May 10, 2001 the Wisconsin Professional Police Association/Law Enforcement
Relations Division, hereinafter the "Association" requested that the Wisconsin Employment
Commission appoint a staff arbitrator to hear and decide a grievance pending between the
Lauri A. Millot, of the Commission's staff, was designated to arbitrate the dispute. A
held before the undersigned on July 27, 2001 in Crandon, Wisconsin. The parties submitted
post-hearing briefs by September 5, 2001. Based upon the evidence and the arguments of the
undersigned makes and issues the following Award.
The parties were unable to stipulate to the issues to be determined in this case.
The Union suggested the following issues for determination:
Did the County violate the collective
bargaining agreement when it paid the Grievant at a
reduced rate? If so, what is the appropriate remedy?
The County's suggested issue is as follows:
Whether the County violated Article XXI
of the collective bargaining agreement when it paid
the Grievant ten percent less than her classified wage rate during her first six months of
in job positions represented by the Forest County Courthouse employees?
Based upon the relevant evidence and arguments in this case,
frame the issues as:
Whether the County violated the collective bargaining
when it paid the Grievant
less than the classified wage rate in job positions represented by the Forest County
Employees Association from November 1, 2000 through October 31, 2001? If so, what is
ARTICLE II MANAGEMENT RIGHTS
Section 2.01 - Management Rights: The Association
recognizes the Employer as having the right
to plan, direct and control the operation of the work force, to hire, to layoff, to discipline or
for just cause, to establish and enforce reasonable rules of conduct, to introduce new or
methods of operation, to determine and uniformly enforce minimum standards of
transfer, schedule and assign employees to positions within the County. All of the above
shall be in
compliance with and subject to the terms and provisions of this Agreement and state and
The Association shall have the right of appeal through the grievance procedure for any
exercise or application of any of the foregoing.
. . .
ARTICLE IV PROBATIONARY
Section 4.01 - Conditions: All newly hired
employees shall serve a six (6) month probationary
period. Upon mutual agreement between the Employer and
the Association, the probationary period may be extended by an
additional two (2) months.
During said probationary period, they shall not obtain any seniority rights and shall be
dismissal without prior notice or recourse to the grievance procedure. All employees
completion of the probationary period shall automatically be considered permanent employees
shall be subject to all conditions and benefits covered by this Agreement. In the event the
probationary period is extended an additional two (2) months beyond the regular six (6)
probationary period, the employee shall be entitled to all fringe benefits after the initial six
. . .
Section 4.03 - Insurance: A
probationary employee shall be allowed to carry, if he/she prefers,
the group hospital and surgical insurance coverage during his/her probationary period;
entire cost of the premium shall be borne by the employee until completion of the
ARTICLE XXI CLASSIFICATION AND WAGES
. . .
Section 21.02: Newly hired employees shall receive
ten percent (10%) less than their classified
rate during the probationary period. During the second six (6) months of employment, the
shall receive five percent (5%) less than the classified rate. Upon completion of twelve (12)
of employment, the employee shall receive the rate of the classification.
BACKGROUND AND FACTS
The essential facts are not in dispute. The Grievant, Holly Drouillard, was hired by
County, hereinafter "County" on April 27, 1997, as a jailer/dispatcher in the Forest County
Department and was represented by the Forest County Deputy Sheriff's Association.
served a 12-month probationary period as a jailer/dispatcher.
On or about September 6, 2000, Drouillard, while still employed as a
jailer/dispatcher for the
County, completed an Application for Employment for the position Terminal Operator/Child
Coordinator, a position represented by the Forest County Courthouse Employees Association,
hereinafter "Association." Another County employee, Penny LeMaster, completed an
for Employment on September 13, 2000, for the same position. At the time of her
LeMaster was a member of the Courthouse bargaining unit and held the position of
Support Assistant. LeMaster did not exercise her bargaining unit-posting rights for the
Operator/Child Care Coordinator
position. Both Drouillard and LeMaster interviewed for the Terminal Operator/Child
Coordinator position with the Social Services Committee and LeMaster was awarded the
As a result of LeMaster receiving the Terminal Operator/Child Care Coordinator
vacant Economic Support Assistant position was offered to Drouillard after the position was
and no one applied. Drouillard did not complete a new Application for Employment for the
nor did she interview for the position.
After Drouillard accepted the position, but before her first pay check was
processed for work
performed in the Economic Support Assistant position, the County's Social Services
and recommended to the County Personnel Committee that Drouillard's hourly rate should be
reduced by five percent. The County Personnel Committee met and decided that
rate of pay would be reduced by ten percent for six months and by five percent for an
Drouillard began working as an Economic Support Assistant on November 1,
2000, and received
ten percent less than the classified rate for an Economic Support Assistant. The parties
Drouillard could transfer her accrued but unused sick leave benefits and receive contractual
benefits based upon her total years of service with Forest County. Drouillard continued to
health insurance coverage with the County paying the same percentage contribution as the
paid when Drouillard was a Sheriff's Department represented employee.
Drouillard testified that when Chuck Sekol, Social Services Director, offered her
Support Assistant position, he stated he did not know what her rate of pay would be because
"was not somebody off the street." Drouillard testified that Sekol informed her that the
Services Committee had not yet taken action regarding her rate of pay and benefits. Sekol
called as a witness at hearing.
On January 15, 2001, Drouillard transferred to another Courthouse bargaining unit
Deputy Clerk, and remains a member of the Courthouse bargaining unit. Drouillard
receive ten percent less than the Deputy Clerk classified rate until May 1, 2001, when her
changed to five percent less than the Deputy Clerk classified rate.
Betsy Ison, Forest County Clerk, testified that she became the Grievant's
supervisor when the
Grievant moved to the Deputy Clerk/Bookkeeper position on January 15, 2001. Ison
did not consider Drouillard a probationary employee, did not complete a six-month
employee evaluation and did not make a recommendation regarding Drouillard's continued
employment in relation to probationary status.
The parties stipulated that the County hired Ron Skallerud on March 17, 1996, as a
Sheriff represented by the Forest County Deputy Sheriff's Association. Skallerud began
with Forest County Social Services Department in a non-represented,
professional Social Worker position on November 9, 1998. Skallerud received credit
for his two
years of service as a Deputy Sheriff and started at the two-year rate of pay for a Social
S. James Kluss, Executive Director of WPPA and business agent for the Union,
testified that the
Personnel Committee of the County oversees all personnel matters for all employees of the
Kluss testified that it is his understanding that the probationary period is for newly hired
to the County and that the trial period is for employees that move from one County position
POSITIONS OF THE PARTIES
The Association asserts that Drouillard was not a newly hired probationary employee
November 1, 2000, and thus the County improperly reduced her rate of pay in conflict with
parties' collective bargaining agreement. The Association argues that Section 21.02 requires
employee be "newly hired" and in a "probationary period" in order for the employee's rate
of pay to
be reduced by ten percent. The Association reminds the Arbitrator of the rule of contract
interpretation which directs that the agreement is to be viewed as a whole document, giving
to all relevant contractual terms.
The Association states that Drouillard was hired by the County on April 20, 1997,
completed her probationary period on April 20, 1998. The Association argues that since
had already completed her probationary period and was not informed, as required by arbitral
principles, that she must serve a second probationary period then she was not a probationary
employee. In further support of her non-probationary status, the Association points out that
Drouillard continued to receive health insurance, vacation and sick leave benefits.
The Association asserts that the County has an established past practice of
for years of service for employees who change jobs and move to a new department and that
practice supports its interpretation of Section 21.02. The Association relies on the County's
treatment of Ron Skallerud when he moved from the Sheriff's Department to a Social
position in 1998. The County credited Skallerud with his two years deputy experience and
him at the two-year rate of pay. The Association asserts that due to the infrequent nature of
occurrence and the similarity to the Grievant's situation, sufficient facts exists to establish a
Based on the above arguments, the Association asserts that the County has violated
labor agreement and the grievance should be sustained.
The County asserts that the controlling issue in this case is whether the Grievant was
hired employee" when she began working as an Economic Support Assistant on November 1,
The County argues that the language of Article XXI is clear and unambiguous. The County
that the language states "newly hired employees" must serve a six-(6) month probationary
will receive a reduced hourly rate. The County asserts that since the collective bargaining
does not distinguish between employees who previously worked in other County departments
other "newly hired employees," the County's definition is consistent with the contractual
The County cites the decisions of County of Walworth, Case 121, No. 47912, MA-7431
(McLaughlin, 3/23/93), Lorain County, Ohio, 98 LA 605 (Shanker, 1991), and City of Kiel,
Case 43, No. 48589, MA-7648, (Nielsen, 11/29/93) and concludes that all three
definition of a "newly hired employee."
The County argues its definition of "newly hired employee" is supported by its
the Grievant when she transferred from the Economic Support Assistant position to the
Clerk/Bookkeeper position and LeMaster when transferred from the Economic Support
position to the Terminal Operator/Child Care Coordinator position. The County asserts that
both the Grievant and LeMaster held positions represented by the Courthouse bargaining unit
time of their transfers, the County credited both with time spent serving the probationary
County argues that this treatment of the Grievant and LeMaster is consistent with its
definition of a
"newly hired employee" as an employee who is either new to County employment or new to
The County next asserts that the past practice alleged by the Association is not
The County argues that the facts surrounding the County's employment of Ron Skallerud do
the requisite criteria to establish a past practice. Specifically, the County argues that
accepted a non-represented position with the County when he moved to the Social Worker II
and as a result he was not obligated to serve a six month probationary period nor was there
obligation to reduce his hourly rate by ten percent as per the Sections 4.01 and 21.02 of the
bargaining agreement. The County asserts that the circumstances of Skallerud's employment
significantly different from the Grievant's circumstances, thus a practice is not established
that a single incident does not create a binding past practice.
For all of the above reasons, the County asserts Drouillard was correctly classified a
hired employee" and requests that the grievance be denied in its entirety.
At issue in this case is whether the County was within its contractual rights to reduce
classified rate of the Grievant during her first year of employment in a position represented
Courthouse bargaining unit. The Association asserts that the contract was violated and
argues that the County's actions are inconsistent with the probationary language of
Article XXI and
Article IV and a past practice of crediting employees that move from one bargaining
unit to another
bargaining unit with their total years of service in establishing their hourly rate of pay. Each
arguments is addressed below.
Contract interpretation is only necessary if the contract is ambiguous. When an
is ambiguous, then an extrinsic analysis of the parties past practice and bargaining history is
determine the parties' intent. Alternately, if the words are "plain and clear, conveying a
then there is no reason to interpret the agreement. See Elkouri and Elkouri, How
5th Edition, p.470 (1999). In this case, because "a single, obvious and
reasonable meaning appears
from a reading of the language in the context of the rest of the contract [then] that meaning
be applied." United Grocers, 92 LA 566, 569 (Gangle, 1989) citing Nolan, Labor
Law and Practice, (1979).
Looking first to the language of Article XXI, the County has the contractual right to
reduce the hourly rate of a newly hired employee by ten percent during the probationary
and by five percent for the next six months. Article IV provides that the probationary period
(6) months. Thus, if Drouillard was a newly hired employee on probation, the County was
its rights to reduce her hourly rate by ten percent for her first six months in a Courthouse
bargaining unit position and by five (5) percent for the next six months.
The first question the parties argue is whether Drouillard is a newly hired employee.
Association asserts that Drouillard was not newly hired on November 1, 2000 because she
newly hired employee in 1997, while the County defines a newly hired employee as an
who is new to the County or is new to a bargaining unit thus making Drouillard a newly
employee when she started in the Courthouse bargaining unit. These two distinct definitions
both supported in arbitral decisions.
In Arco Chemical, 102 LA 1051, 1054 (Massey, 1994), Arbitrator Dunham Massey
concluded that an employee who has maintained continuous service to an employer does not
become a new employee upon transfer because the "presumption must be that the collective
bargaining agreement does not reach the Company commitments made before or outside of
bargaining relationship." Alternately, in Walworth County, supra, Arbitrator McLaughlin
found that it "strains the general reference" to define "new employees" as anything more
employees new to the collective bargaining unit and further, that "there is no apparent reason
distinguish between newly hired or rehired employees and transfers who are new to the
Though I find the definition in Arco Chemical more alluring, it is not dispositive in
case to define "newly hired employee." Of greater significance is the cumulative language of
Article XXI and Article IV and the inconsistent manner in which Drouillard was treated by
County. Even if I was willing to conclude that Drouillard was a "newly hired employee" as
County contends, she was not a "newly hired employee" on probation. The County
incorrectly focuses solely on the term "newly hired employee" as the contractual basis
Drouillard's hourly pay and ignores the contract language of Article IX and
Article XXI which create
the obligation for Drouillard to be both "newly hired" and considered a probationary
order for her pay rate to be reduced.
Arbitral standards require that the arbitrator give effect to all clauses and words of
agreement. Elkouri and Elkouri, How Arbitration Works, 5th
Edition, p. 493 (1999). If alternate
interpretations of a clause are possible and the result of applying one of the interpretations
meaning and effect to another provision of the contract, while the other would render the
provision meaningless or ineffective, the inclination will be to use the interpretation that
effect to all provisions. Id.
Drouillard's employment in the Courthouse bargaining unit began on November 1,
therefore, pursuant to Article IV, she began serving a six-month probationary period on that
probation would have ended on June 1, 2000. No evidence or testimony was presented
that Drouillard was ever informed that she was a probationary employee nor does the
support the conclusion that the County regarded her as one.
Betsy Ison, County Clerk, who was Drouillard's supervisor beginning on May 1,
and was therefore Drouillard's supervisor at the time she would have completed probation,
testified that she did not complete a probationary evaluation or make any recommendations
regarding Drouillard's continued employment. Ison testified that she did not consider
to be a probationary employee.
Probationary employees per Article IV have available to them group health and
insurance coverage provided the probationary employee pays the full premium. Drouillard
testified that she continued to receive health insurance coverage after she moved from the
Sheriff's Department to Courthouse bargaining unit positions and that she continued to pay
same portion of the health insurance premium which is the same amount non-probationary
employees in the Courthouse bargaining unit pay. Thus, for purposes of health insurance,
County did not consider Drouillard to be a probationary employee.
The County allowed Drouillard's previously earned sick leave balance to follow her
Courthouse bargaining unit position. Evidence was not presented at hearing as to whether
earned sick leave beginning on November 1, 2000, or whether she was allowed to use sick
Lacking this information, it is impossible to ascertain whether the County considered
probationary employee for purposes of sick leave.
The County agreed to calculate Drouillard's vacation leave benefits based on her total
years of service to the County. No evidence was presented as to whether she was allowed or
denied the use vacation leave, such a denial would have been consistent with a probationary
employee status. Yet even lacking this evidence, since the County calculated her vacation
based on her total service to the County, it did not consider her to be a probationary
purposes of vacation leave.
In light of the evidence, I conclude that Drouillard was not a "newly hired employee"
probationary status pursuant to the collective bargaining agreement beginning on
November 1, 2000,
when she moved from the Sheriff's Department to positions represented by the Courthouse
bargaining unit because the County did not identify her as such nor did it subject her to the
rights and benefits of a probationary employee.
With regard to Drouillard's rate of pay from May 1, 2000 through October 31, 2000,
XXI addresses two time periods relevant to the hire of a new employee. The first sentence
the time the newly hired employee is on probation and the second sentence refers to the six
months that follow the new employee's probationary period. The second sentence modified
sentence. Drouillard was not a new hire on November 1, 2000, nor was she considered a
probationary employee, therefore she was not completing her "second six (6) months of
which is prerequisite to reducing her classified rate.
The County cites arbitration decisions that validate its position and actions. After
these cases, I do not find that the facts are sufficiently on point to establish these cases as
to this issue. Both the City of Kiel and Lorraine County decisions are termination cases
non-regular non-represented employees of municipal employers are hired to regular positions,
terminated and are attempting to use their non-bargaining unit hire date for purposes of
bargaining unit protection. Both of these cases can be distinguished because the employees
governed by the labor agreements nor did not receive any labor agreement benefits during
their non-regular, non-represented status, whereas Drouillard was provided benefits and was
thus in part,
governed by the labor agreement. With regard to County of Walworth, supra, as previously
indicated, it would be persuasive if it was appropriate for the County to isolate the term
employee," but viewing the collective bargaining agreement as a whole and specifically the
probationary language, and in light of the County actions, I do not find the County's
The parties disagree as to whether an established past practice exists as a result of a
incident when the County paid Ron Skallerud at the two-year social worker rate after he
the Sheriff's Department to a non-represented social worker position. The Association's
is hindered the fact that Skallerud moved from a represented position to a non-represented
and had the right to negotiate his individual terms of employment with the County. The
assertion that a single incident cannot create a binding practice is hampered by the
the unique circumstances of the incident will arise regularly. In as much as my analysis does
require that a conclusion is reached on whether a binding past practice exists, it is not
I decide this question.
As the discussion has established, the County and the Association agreed that during
employee's first 12 months of employment, which includes the probationary period, the
receive diminished wages and diminished levels of benefits. The County's actions indicated
did not regard Drouillard as a probationary employee since she was afforded benefits due to
employment in the Sheriff's Department, therefore, she was not regarded as a "newly hired
employee," thus the County did not have the contractual right to reduce her classified rate.
1. Yes. The County violated the collective bargaining agreement when it paid
Grievant less than the classified wage rate in job positions represented by the Forest County
Courthouse Employees Association from November 1, 2000, through October 31, 2001.
2. The appropriate remedy for the violation found in item one above is as
The County shall make Drouillard whole without interest for the difference between what she
paid and what she would have been paid had her classified wage rate not been improperly
as noted in one above.
Dated at Wausau, Wisconsin this 3rd day of December, 2001.
Lauri A. Millot, Arbitrator