BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY (SHERIFF'S
WINNEBAGO COUNTY SHERIFF'S PROFESSIONAL
LOCAL 107, LABOR ASSOCIATION OF WISCONSIN, INC.
Mr. John A. Bodnar, Corporation Counsel, Winnebago County,
415 Jackson Street, P.O. Box 2808, Oshkosh, WI 54903-2808, on behalf of the County.
Mr. Patrick J. Coraggio, Labor Consultant, Labor Association
of Wisconsin, Inc., 2835 North Mayfair Road, Suite 24, Wauwatosa, WI 53222, on behalf
of the Union.
According to the terms of the 2001-2003 labor agreement between Winnebago County
Winnebago County Sheriff's Professional Police Association, the parties jointly requested that
Wisconsin Employment Relations Commission designate Sharon A. Gallagher, a member of
to serve as impartial arbitrator to hear and resolve a dispute between them regarding whether
County had just cause to issue a written warning to the Grievant, Kenneth Daniels,
August 3, 2001, incident. A hearing was scheduled and held at Oshkosh, Wisconsin, on
2002. No stenographic transcript of the proceedings was made. The parties jointly
make oral argument at the close of case in lieu of filing written briefs. This request was
the Arbitrator and the record herein was closed on January 30, 2002.
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 parties stipulated that the following issues should be determined by the Arbitrator
Did the County issue a written warning to Officer Kenneth
Daniels for just cause? If not,
what is the appropriate remedy?
Except to the extent expressly abridged by
a specific provision of this Agreement, the County
reserves and retains, solely and exclusively, all of its Common Law, statutory, and inherent
manage its own affairs, as such rights existed prior to the execution of this or any other
Agreement with the Association. Nothing herein contained shall divest the Association from
its rights under Wisconsin Statutes, Section 111.70.
DISCIPLINE AND DISCHARGE
The County may only discipline or
discharge a non-probationary employee for just cause,
pursuant to Sec. 59.26(8), Stats. Demotions, suspensions and dismissals of non-probationary
employees shall be processed under the provisions of Section 59.26(8), Stats.
All disciplinary actions shall be presented
in person to the employee within a reasonable time
of the date of the infraction. All disciplinary actions shall be in writing.
Written warnings shall state the nature of
the infraction under Section 59.26(8), Stats., only
written reprimands that have occurred within the last twelve (12) months from the date of the
recent infraction can be used for purposes of establishing an appropriate penalty under
An employee shall have rights of access to
his personnel file in accordance with Section
103.13, Wisconsin Statutes.
. . .
RC.22 Unbecoming Conduct on duty
Each employee shall be courteous toward
the public. The employee shall not use coarse,
violent, profane, or insolent language or gestures.
The employee shall not express any prejudice concerning
religion, politics, national
origin, life-style, sex, or other personal characteristics.
. . .
The Winnebago County Jail is located in Oshkosh, Wisconsin, and it houses an
average of 126
incarcerated inmates as well as 156 work release (Huber) inmates. Geoffrey Anderson has
County Jail Administrator for the past 5 years. Lieutenant Michael Powers has been
employed by the
County Sheriff's Department (Department) for the past 23 years. Powers was shift
charge of all departments operations (including the jail) on the swing shift, which covers
and third shifts during all relevant times. Powers was shift commander of the third shift on
3 and 14, 2001.
The Grievant, Kenneth Daniels, (Daniels) has been employed by the County as a
Officer/Deputy for the past four years on the third shift (10:00 p.m. to 6:10 a.m.) in the Jail.
was previously employed as a Correctional Officer by the State of Wisconsin at the Oshkosh
for four years. Daniels was never disciplined by the State or by the County prior to the
issue in this case. Daniels is a respected Correctional Officer who has been designated
Officer-In-Charge of the County Jail from time to time, if the Jail Corporal is absent on the
The Department has work rules and policies which are interpreted as requiring that
inmates are entitled to five pieces of paper, one stamped envelope and a flexy-pen if they
incarcerated for seven days in the County Jail and have less than $1.00 on account at the
Jail. On this
point, Sec. 902.07 of Department Policy states:
Inmates will purchase postage for all outgoing mail. If an inmate
is indigent, the County shall
provide postage for one letter per week.
All requests for free postage
will be made in writing.
The correction officer will
check the inmate's account to determine indigence eligibility . . .
Jail inmates can make requests for various items on canteen forms (not made a part
record) or on "inmate request forms." On the latter form, inmates can check boxes
haircuts, their release date, Huber laundry and to be placed on the Huber list. The inmate
form also has a six-line space for inmates to describe the "nature" of their request. Inmates
and date these requests or they will be returned, as stated on the form. These forms have an
space for a "response" which includes a place for "supervisor signature," badge number and
Canteen forms are made available to inmates every Monday and those requests for
items (such as writing paper and franked envelopes) are normally filled the following day,
after the inmate's account is checked to determine his/her ability to pay for the items
The record evidence showed that no written or oral directives have been issued from
management at the Jail indicating that it is inappropriate for Correctional Officers to correct
spelling on inmate request forms, and no officer has ever received a written warning for
inmate spelling on such a form or for denying an inmate request before the instant case
arose. It is
also clear that no inmate requests have ever been denied by Correctional Officers prior to
2001. It is also undisputed herein that more than 50% of inmate request forms contain
There is no rule that states Correctional Officers cannot ask inmates to re-submit their
or that Correctional Officers cannot deny inmate requests.
On August 3, 2001, Correctional Officer Daniels received an "Inmate Request Slip"
inmate M.C. 1/, which read in relevant part as follows:
NATURE OF REQUEST: It's a shame I have to waste a hole
peice of paper to get my Indigent.
Five peice's of paper and 1 envelope. today is Friday Please look in to this for me. I
should of got
it tuesday 7-31-01 thank you Dosn't mean much to you, But it means
everything to me.
This form was signed by M.C. and dated 8-3. Daniels recalled that he received this
slip through channels, not from M.C. personally. Daniels placed his initials in the
signature" space, and his badge number in the space provided therefor as well as the date of
the response area of M.C.'s request form. Daniels also wrote the following response to
request on the form:
"HOLE" is spelled WHOLE
"PEICES" is spelled PIECES
M.C.'s request was apparently returned to M.C. the following day, which was August
4, 2001, a
1/ The identity of the inmate is being
Sometime after August 3, 2001, even though M.C. had not requested that Jail
Geoffrey Anderson receive a copy of his Inmate Request Slip, a copy thereof was placed in
Anderson's in-box by an unknown person. Anderson read the slip and was concerned with
of Daniels' response. Anderson stated herein that he felt that Daniels' response to M.C.'s
did not answer that inmate's needs as Anderson would have expected. Anderson stated that
normally gets approximately ten inmate request slips per week and that the majority of these
misspellings and incorrect grammar.
Anderson decided to ask Lieutenant Powers to formally question Daniels regarding
apparent response on M.C.'s Inmate Request Form of August 3, 2001. On August 14, 2001,
Lieutenant Powers questioned Officer Daniels as he had been requested to do by Captain
Anderson. Following his interview with Daniels, Powers dictated the content of that
his notes which was typed by Sheriff's Department personnel and returned to Powers with a
Anderson sometime approximately three days after August 14, 2001. Powers' memo
interview with Daniels read as follows 2/ :
. . .
On August 14, 2001, at 3:54 a.m. I had an
occasion to interview Officer Ken Daniels of the Jail
Division in regards to a response that he put on an inmate request slip. I first informed
Daniels that he must be truthful during my questioning as discipline could arise from this.
have a right to have a union rep present. At that time he did ask me what might possibly be
discipline that we aretalking about. I told him that would not be up to me
that it would be up to
Captain Anderson and he would have to look at his own career and remember if hehad ever been
warned for an infraction of this type before. The type of discipline at this time would hinge
whether he was a repeat offender or not. At that time Officer Daniels told me he would not
requesting a union rep to be present at this time. He said he has never been confronted with
of incident before in his career.
I then went on to ask Officer Daniels if he
in fact did write the response after showing him the
inmate request slip and he said yes he did. He was the one that wrote it. I asked him if he
to write this response by any superior and he told me no he wrote it on his own. I asked
him why he
wrote this type of response and he went on to tell me that he feels he gets along very well
C. and he has joked around with himin the past. He did this somewhat to
correct his spelling but it
also was done in a joking attitude. Ken said that it surely was not done to demeanor [sic] the
in any fashion. I questioned Officer Daniels as to what would have happened if the inmate
his paper to contact an attorney and Ken went on to tell me that if any inmate would contact
person to person and request something of the nature and indicate that the reason [sic] for an
attorney, he would immediately get the paper and envelope for him without making him go
the request slip and wait a
week. He said that he has done this for other inmates and in fact
has gotten items tonight,
08/14/01, for inmates that have asked for things other than going through the request slip.
Ken said he was never doing this in a
belittling manner and that is not like him to operate in that
fashion. Officer Daniels said that in the time that inmate M.C. has been in the Jail, he has
a problem with him. Inmate C. has a problem with seizures and he is actually looked [sic]
times than a standard inmate wouldbe because of the medical condition that
he has. Officer Daniels
also stated that I could look through other request slips that he has made a response to and I
not find a problem with any of those slips. He stated that if M., meaning the inmate, was
by the response he would certainly apologize to him because it was certainly not intended to
derogatory in any way.
. . .
2/ Powers testified herein that he had no
reason to believe that Daniels was lying when he (Powers)
interviewed him on August 14th.
After Anderson received the above-quoted report from Powers, he conferred with
Gary Boyce as well as the Chief Deputy and the Sheriff to determine what, if any, discipline
issue to Daniels for his written response on M.C.'s Inmate Request Slip of August 3, 2001.
result of their discussions, Anderson typed up and had the third shift sergeant issue Daniels
following written warning dated August 20, 2001. This warning stated that it was intended
remind you to improve your conduct and/or your work or further action will be taken." The
warning describes the type of infraction as "Rules and/or Policy Infractions" as well as
Behavior, Attitude." The detailed comments regarding the infraction read as follows:
. . .
On August 3, 2001 you answered an Inmate
Request Slip by responding "Hole is spelled Whole,
Pieces is spelled Pieces, please re-order." This response was inappropriate and in violation
Winnebago County Sheriff's Office Rule of Conduct RC.22, UNBECOMING CONDUCT
This rule reads, "Each employee shall be
courteous toward the public and fellow employees. The
employee shall not use coarse, violent, profane, or insolent language, acts, or
gestures. 3/ The
employee shall not express any prejudice concerning race, religion, politics, national origin,
sex, or other personal characteristics."
Any further violations of this type could result in greater
discipline to include suspension or
. . .
The written warning also indicated that Daniels had not been warned prior to this
3/ The underlined words do not appear in RC
22 which was made a part of this record.
Anderson stated herein that he found Daniels' correction of M.C.'s spelling and
indication that M.C. should reorder the paper, pen and envelope condescending, demeaning
possibly inflammatory and that he (Anderson) did not believe that Daniels had done his job
the response that he wrote on the bottom of M.C.'s request. Anderson stated that no
purpose could be served by Daniels' response. Anderson stated that he felt that M.C., as an
was a member of the public under RC 22; that Daniels had not been courteous to M.C. and
violated RC 22 by the condescending and insolent act of writing the response on M.C.'s
Request Slip when Daniels knew that M.C. wanted writing materials. Anderson stated that if
did not exist, he would still have disciplined Daniels for his failure to follow Policy No.
for not acting in a professional manner toward M.C.
Anderson admitted, however, that he did not interview M.C. regarding the request
did he seek to determine why M.C.'s July 31, 2001 request for writing material had not been
by the Correction Officer who had received that original request. Anderson also stated that
not complain about Daniels' conduct toward him and that he (Anderson) did not request
make any recommendation regarding whether Daniels should be disciplined following
investigation. Anderson also admitted that he did not investigate how the Inmate Request
been placed in his in-box and that he (Anderson) never talked to either Daniels or M.C. or
witnesses regarding this incident. Anderson stated that he directed his sergeant to make sure
M.C. received his writing materials after the incident.
Daniels stated herein that he has been Vice-President of the Union since January 1,
Daniels stated that he is familiar with M.C. as M.C. has been in the Winnebago County Jail
Spring of 2001. Daniels stated that when he received M.C.'s Inmate Request Slip, he did
the writing materials to M.C. because he thought M.C. was asking him (Daniels) to check
he had not previously been given his indigent writing materials pursuant to Policy No.
Daniels stated that he believes he has discretion to refuse to provide the indigent writing
package to inmates and to deny other inmate requests. Anderson asserted that he did not
provide the indigent writing material package to M.C. because he was not there when M.C.
ordered it on July 31, 2001.
Daniels stated he did not know which officer originally denied M.C.'s request for the
material package. When asked why he corrected M.C.'s spelling on the August 3, 2001,
Request Slip, Daniels stated that he had a joking, bantering and kidding repport with M.C.
approximately 3-5 months he had been in the Jail; that there was no hostility between himself
M.C.; that when he (Daniels) corrected M.C.'s spelling, he thought he was joking with
M.C. and he
did not mean to demean M.C. or to punish him by his actions.
Daniels stated that the County Jail has a philosophy in which the County encourages
Correctional Officers to have more interaction with inmates if it is possible. Daniels stated
is what he was doing when he wrote the response on M.C.'s Inmate Request Slip. Daniels
he had never had to discipline M.C. as an inmate and that M.C. has never complained about
treatment of him (M.C.). Daniels stated that the description of his interview with Lieutenant
was accurate and that he told Powers the truth. Anderson stated that when he corrected
spelling on the August 3, 2001, request slip he did not knowingly violate RC 22 and
that he (Daniels)
had never been told or received any written directives not to correct an inmate's spelling.
stated that he was proud of his employment record and that he would like the written
removed from his record because he did not believe he did anything wrong on August 3,
On cross-examination, Daniels admitted that the Inmate Request Slip did not
formal complaint lodged by M.C. Daniels also asserted that it was not reasonable to
M.C. was asking for five pieces of paper and an envelope on his Inmate Request Slip, even
the form that M.C. submitted was on an Inmate Request Slip. Although Daniels asserted
that if M.C.
had asked for an indigent writing material package, he would have told M.C. to put his
a canteen sheet on Monday night for receipt the following Tuesday, Daniels admitted that he
attach a canteen request form to the August 3, 2001, Inmate Request Slip that M.C. had
to him as part of his response thereto. Daniels stated that it was not fair to conclude that
wanted an indigent writing material package by his written request of August 3, 2001, but
he was asking that a Correctional Officer look into why he (M.C.) had not received the
writing package he had requested on July 31, 2001. However, Daniels also admitted that he
checked into the matter for M.C. and that he did not explain to M.C. why M.C. did not get
indigent writing material package in the response area of the August 3, 2001, Inmate
which he returned through channels to M.C. Daniels admitted he does not know whether
got his indigent writing material package. Finally, Daniels admitted that he never before
inmate request because of spelling errors during his tenure with the County and that he did
to M.C. about the incident so he did not know whether M.C. was offended by his response
August 3, 2001, Inmate Request Slip. For these reasons, Daniels never apologized to M.C.
POSITIONS OF THE PARTIES
The parties agreed to orally argue this case at the close of the hearing. They,
waived the right to file any briefs herein. The parties' arguments can be summarized as
The County argued that the documents in this case are clear on their face; that
to Daniels' past history as a good employee, he clearly intended to and did in fact "jerk
by his (Daniels') written response on M.C.'s August 3, 2001, Inmate Request Slip. The
noted that Daniels could have simply obtained or reordered the indigent writing package for
However, Daniels chose not to do either of these things. In the County's view, M.C. clearly
requested an indigent writing material package on August 3, 2001. Daniels failed to get that
for M.C. and therefore failed to do his job. The County urged that this is an issue of a lack
courteousness toward the public; that Captain Anderson looked into the situation as any
should do and found that Daniels had violated RC 22, as well as Daniels' general duty to be
to inmates. However, even if RC 22 did not exist, there would have been sufficient cause to
discipline Daniels simply on the basis of his lack of courtesy to M.C. under Section 902.07
Department Policy. Therefore, the County urged that the Arbitrator deny the grievance and
the written warning to stand.
The Union argued that the issue here is whether a written warning was issued to
just cause. The Union urged that the County did not meet the just cause standard in this
Although Captain Anderson claimed to be appalled that a prisoner did not get his indigent
package, Anderson was not appalled enough to find out why M.C. did not get the writing
the first time he requested it on July 31, 2001. The Union also argued that Daniels did not
M.C.'s request. In this regard, the Union noted that officers cannot assume that prisoners
indigent writing package from verbiage on a request slip; that Correctional Officers are
trained to be
responsive, not intuitive. The Union argued that Daniels' response on M.C.'s Inmate
shows that he was joking with M.C. and that he did not deny M.C. his indigent writing
Indeed, it should have been a sufficient response for Daniels to simply state, as he did on the
Request Slip, "please re-order."
The Union contended that there was no specific rule that was violated here, the
failed to prove that it had ever directed the Correctional Officers not to correct inmate's
errors. In the Union's view, the use of the catch all "rule" regarding conduct unbecoming
not specific enough to base discipline upon. Indeed, the Union noted that Human Resources
Wagner characterized Daniels' actions as "harassment" in a September 4, 2001, letter
grievance. If this were in fact so, the Union queried why Captain Anderson did not
Wagner's allegation of "harassment." The Union argued that Daniels was treated differently
other employees; that Daniels had no prior discipline on his record and that he should not
received a written warning based on the evidence in this case.
Indeed, the Union noted that Correctional Officers have been directed to have regular
with inmates under the County's Jail philosophy of direct contact. This is in fact what
doing when he wrote his response to M.C.'s Inmate Request of August 3, 2001,
and Daniels did not know that he would be disciplined for kidding with M.C. by
spelling on the form. Thus, the Union urged that there was no basis for the written warning
cause and it urged the Arbitrator to sustain the grievance and expunge Daniels' record of all
to this written warning.
In the written warning issued to Daniels by Captain Anderson, Anderson described
response to M.C.'s August 3, 2001, Inmate Request Slip as "inappropriate and in violation of
. . . RC
22." Anderson then misquoted RC 22 (as noted infra) and stated that
"further violations . . . could
result in greater discipline. . . ." Thus, the initial inquiry in this case must be whether
response to M.C. violated RC 22 or was otherwise inappropriate.
In order to judge this first point, it is reasonable to look at Daniels' response in light
request. In his August 3rd request, M.C. was clearly angry and upset
(using judgmental words such
as "shame" and "waste") that he had requested an indigent writing package the week before
not yet received it. M.C. then clearly requested "please look in to this for me." M.C. then
his frustration, his vulnerability, and a feeling of self-pity: "Dosn't mean much to you, But
everything to me." To this request, Daniels' responded by correcting two of M.C.'s
and adding a cryptic "please re-order." Given the emotional tenor of M.C.'s request,
response was, on its face, at least insensitive and non-responsive.
An analysis of RC 22 is necessary at this point. RC 22 states that employees "shall
courteous toward the public." The Union asserted herein that as an inmate of the County
should not be considered a member of the "public." 4/ I disagree. Based upon the broad
of RC 22, one could reasonably conclude that the word "public" means all non-employees of
County. In addition, it would be unreasonable and illogical for the County to enjoin its
to be courteous to non-inmate members of the public while allowing its officers to treat
otherwise. Therefore, I conclude that M.C. must be considered covered by RC 22 as
a member of
the public. 5/
4/ Although Captain Anderson made errors in
quoting RC 22 in the written warning he issued to Daniels,
these errors do not materially affect this dispute.
5/ The facts of this case
failed to support a conclusion that Daniels violated the second or third sentences of
The Union argued that the County never directed officers to refrain from correcting
spelling and grammar. I find this argument to be too restrictive of the issues in this
case. Here, the County has established work rules which (based on this record) the
Union has not
grieved. RC 22, although broadly written, is reasonably related to the delivery of County
at the Jail where Daniels was employed.
The Union also argued in this case that the County should have investigated Human
Resources Director Wagner's characterization of Daniels' actions as "harassment" in his
4, 2001 letter answering the grievance as a part of applying a just cause standard in this case.
disagree. Clearly, Mr. Wagner's use of the word "harassment" merely expressed his
assessment of the tenor of Daniels' reply and did not allege a separate violation or separate
misconduct by Daniels. As such, no investigation of Mr. Wagner's personal views of
conduct would have been appropriate.
Finally, the Union has argued that Daniels was merely following departmental policy
regular contact with inmates at the County Jail by his written response to M.C.'s
August 3rd request.
I do not find this argument particularly persuasive, as Daniels admitted that he never had
contact with M.C. concerning his August 3, 2001 Inmate Request Slip.
The County has relied solely upon the language of M.C.'s request slip and Daniels'
response thereto to support its decision to discipline Daniels. This is troubling. Although I
found that Daniels' response to M.C.'s request of August 3rd to be
insensitive on its face and
essentially non-responsive, I cannot conclude based on this record that Daniels was
M.C. by his written comments to M.C., given Daniels' uncontraverted testimony that he had
bantering and kidding rapport with M.C. It is also significant that M.C. did not file a
against Daniels concerning Daniels' response to his August 3rd
request, and that the County never
interviewed M.C. to determine whether M.C., in fact, felt that Daniels' response was
to him or inappropriate in some other way. 6/
6/ However, the Union's argument that
Daniels never refused M.C.'s request is also unpersuasive. By writing
the words that he wrote in the response area of M.C.'s August 3rd request
form, Daniels effectively denied M.C.'s
implicit request for the indigent writing package on August 3, 2001, and Daniels also failed
to "look in to" why
M.C. had not previously received a writing package per his July 31st
It is also troubling that the County failed to investigate M.C.'s request regarding why
original July 31st request for an indigent writing package had not been
filled. Yet the County
proceeded to warn Daniels for his response to M.C.'s August 3rd request,
although no officer had
ever before been disciplined for violating RC 22 and no Departmental memos or
addressed RC 22 or proper responses to inmate requests.
But even assuming Daniels was merely kidding with M.C. when Daniels wrote the
to M.C.'s August 3rd request, and assuming that M.C. and Daniels'
relationship would have
reasonably supported such an approach, the facts of this case showed that Daniels failed to
to M.C.'s request (in its literal form) by not checking into why M.C.'s
July 31st request for an indigent
writing package had been denied or ignored. Because of these facts, it would be reasonable
conclude that Daniels' conduct merited some discipline. However, given the fact that
a clean work record prior to August 3, 2001, that the County had never instructed employees
regarding RC 22 or proper responses to inmate requests, that the County had never before
any employee for violating RC 22, that the County failed to fully investigate why M.C.'s
had not been filled, it would have been more appropriate for the County to have issued
oral warning for his failure to properly respond to M.C.'s request. In the Arbitrator's view,
County failed to forewarn Daniels that returning an Inmate Request form unfilled would
result in his
being issued a written warning for violating RC 22. 7/ Therefore, based on the relevant
argument herein and my analysis thereof, I do not believe the County was justified in issuing
a written warning for his response to M.C.'s August 3rd request, and I
issue the following
7/ Daniels asserted in this case that is was not
reasonable to conclude, based on M.C.'s request form, that M.C.
was in fact requesting an indigent writing package by the language M.C. employed in that
request form. I need
not decide this issue, as I have found that Daniels failed to respond to M.C.'s clearly stated
request that someone
check into the fact that he (M.C.) had not received an indigent writing package even though
he had requested it
approximately one week earlier on July 31st.
The County did not have just cause to issue Officer Ken Daniels a written warning
response to inmate M.C.'s August 3, 2001 Inmate Request Form. Therefore, the written
and any reference thereto issued to Officer Daniels shall be expunged from his file. The
is, therefore, sustained in its entirety.
Dated at Oshkosh, Wisconsin, this 9th day of April, 2002.
Sharon A. Gallagher, Arbitrator