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, appearing
on behalf of
The original Award regarding grievant Lisa Fox Roberts' (hereafter Roberts)
issued by the undersigned on August 20, 1999. Thereafter, on January 27,
2000, Calumet County
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 failed to cooperate in Roberts' return to
it had thereby refused and failed to implement the August 20, 1999 award in violation
Sec. 111.70(3)(b)4 and 6, Stats.
Thereafter, WERC Examiner Shaw issued a decision remanding the case to the
for clarification on May 4, 2001. On October 24, 2001, the undersigned issued
Award in this case, and she retained jurisdiction for a period of thirty (30) calendar days
after the date
of that Award regarding the remedy only.
By letter dated November 19, 2001, the Union requested that the Arbitrator
for a period longer than thirty (30) days after the date of the Supplemental Award in order to
with two problems which had arisen: First, Roberts had been unable to enter Level II
within the 14-calendar day period after the date of the Supplemental Award, as required
various reasons. Second, on November 7, 2001, the State of Wisconsin, Department
Development denied Roberts access to the "KIDS" computer program because "this
violated the State statutes, fed. regs. and DWD security policy relating to confidentiality."
Prior to November 23, 2001, the Arbitrator sent a fax to the parties indicating
that she would
extend her jurisdiction beyond the 30-calendar day period after the issuance of the
Award in order to deal with the issues raised in the Union's November 19, 2001 letter.
November 26, 2001, a conference call was held between the Arbitrator and Counsel
for the County
and the Union. During this conference call, the Arbitrator asked the parties to brief the
in the Union's November 19th letter.
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.
Whether the Arbitrator should modify the Award and/or
Supplemental Award to allow
Roberts additional time to obtain appropriate treatment, if any, and what effect the State of
Department of Workforce Development's denial of access to the State "KIDS" program to
should have on the remedy in this case?
POSITIONS OF THE PARTIES
The County took the position in its brief received November 30, 2001, that
be terminated from County employment based upon DWD's decision denying her access to
of Wisconsin's "KIDS" program. In the alternative, as Roberts failed to
enter a Level II treatment program within 14-calendar days after the date of the
as required therein, the County urged that Roberts' employment should be terminated on that
Finally, if the Arbitrator believes that Roberts' employment cannot be terminated on either of
above bases, the County requested that it may be necessary for the Arbitrator to hold further
evidentiary hearings wherein the Union should carry the burden to demonstrate "why
did not comply with the requirements of the Supplemental Award."
The Union argued that changes have been made in the substance abuse standards
issuance of the initial Award in this case. For this reason, Roberts could not enter
Level II treatment
for her problem with alcohol without completing a current assessment. The Union therefore
that the Supplemental Award be modified to indicate that Roberts' reinstatement be
the completion of such a current assessment and her participation in whatever treatment (if
recommended thereby. 1/
1/ In its
November 19, 2001 letter, the Union asserted that the County is obligated to reinstate
Roberts to an
alternative position of employment, as the Award and Supplemental Award provided that she
be placed in a
"substantially similar position" if her child support position was not available. The Union
also requested that
Roberts be given "additional time in which to contact and obtain enrollment in a
Level II program that will admit
her, without requiring a current assessment."
It appears to the Arbitrator that the essential issue remaining in this case revolves
meaning of the phrase "substantially similar position" in both the Award and Supplemental
Although the undersigned did not explicate this phrase in either of the prior Awards, the
using the above-quoted phrase was that Roberts be offered another child support worker
her child support worker position had been filled or eliminated by the County prior to her
reinstatement pursuant to the decisions in this case. I point the parties to footnote 9/
Supplemental Award as demonstrating that there was no intention to order Roberts'
to any other County position other than a child support position by the orders issued.
However, as the State of Wisconsin Department of Workforce Development has
Roberts access to the "KIDS" program which is essential to the performance of her duties as
County child support worker, it is therefore clear to this Arbitrator 2/ that "the County
obligation to reinstate Roberts to a child support worker position" pursuant to the Award or
2/ I need
not address the Union's arguments regarding Roberts' inability to enter Level II
treatment in a timely
fashion as it was clear in my Supplemental Award that "if Roberts is denied access to
'KIDS,' the County will have
no obligation to reinstate her to a child support worker position." The State's action ends the
inquiries in this case.
Based on the above and foregoing, and in response to the parties' arguments as
herein, I issue the following
There is no need to modify the Award or Supplemental Award herein. The State of
Wisconsin Department of Workforce Development's denial of "KIDS" access to Roberts
she is not qualified to hold her child support worker position or any other child support
position at Calumet County. Therefore, as Roberts is ineligible to be reinstated, this case is
in its entirety.
Dated at Oshkosh, Wisconsin, this 19th day of December, 2001.
Sharon A. Gallagher, Arbitrator