BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
BURNETT COUNTY LAW ENFORCEMENT
THE WISCONSIN PROFESSIONAL POLICE
ENFORCEMENT EMPLOYEE RELATIONS
BURNETT COUNTY, WISCONSIN
Mr. Robert E. West, Consultant to
WPPA/LEER, 340 Coyier Lane, Madison, Wisconsin 53713,
appearing on behalf of Burnett County Law Enforcement Association, represented by The
Professional Police Association/Law Enforcement Employee Relations Division
referred to below as the Association, or as the Union.
Ms. Kathryn J. Prenn, Weld,
Riley, Prenn & Ricci, S.C., Attorneys at Law, 3624 Oakwood Hills
Parkway, P.O. Box 1030, Eau Claire, Wisconsin 54702-1030, appearing on behalf of Burnett
Wisconsin, referred to below as the County, or as the Employer.
The Union and the County are parties to a collective bargaining agreement which was
at all times relevant to this proceeding and which provides for the final and binding
certain disputes. The parties jointly requested that the Wisconsin Employment Relations
appoint Richard B. McLaughlin, a member of its staff, to serve as an Arbitrator to resolve
00-392, filed on behalf of Chad Halvorson, who is referred to below as the Grievant. The
agreed that they wanted a determination whether the grievance
was arbitrable prior to a determination, if any, of the merit of the grievance. Hearing
on the issue of
arbitrability was held on May 24, 2002, in Siren, Wisconsin. No transcript of the hearing
prepared. The parties filed briefs and reply briefs by July 17, 2002.
The parties stipulated the following issue for decision:
Is the grievance filed by the Union on behalf of the Grievant
ARTICLE III MANAGEMENT
Section 3.01: The County
possesses the sole right to operate the Law Enforcement
Department and all management rights repose in it, subject to the provisions of this Contract
applicable laws. These rights include the following:
from their duties because of lack of work, lack of funds, or
other legitimate reasons . . .
The reasonableness of County action taken
pursuant to this Article is subject to the grievance
. . .
Section 5.01: The
probationary period for all employees in the bargaining unit shall
be one (1) year. Continued employment beyond the probationary period shall be evidence
employee has satisfactorily completed his/her probation and has become a regular employee
Department. If the employee's work has not been satisfactory, reasons should be given, in
to the person affected as to why he/she has not been accepted.
5.02: Upon satisfactory completion of the probationary period,
shall receive all rights and privileges under this working Agreement, computed from their
of employment, and; may be disciplined or discharged for just cause only, with full recourse
the grievance procedure of the Agreement.
. . .
ARTICLE X GRIEVANCE
Section 10.01: A
grievance is defined as any difference or dispute regarding the
interpretation, application or enforcement of the terms of this Agreement.
. . .
Section 10.02: . . .
The arbitrator shall neither add to nor detract from nor modify the
language in this Agreement in arriving at a determination of any issue presented to him/her.
10.03: Where the subject of a grievance is a discharge, the
parties agree to
start at Step 2 of this Article, bypassing Step 1. . . .
Section 18.01: The
parties recognize the authority of the Employer to initiate
disciplinary action against the employees for just cause.
18.02: The Employer recognizes the principle of progressive
applicable to the nature of the misconduct giving rise to disciplinary action.
18.03: Any employee shall be entitled to appeal any disciplinary
through the grievance procedure.
The Association filed Grievance No. 01-521 on behalf of the Grievant on December
(references to dates are to 2001, unless otherwise noted). The grievance form cites Articles
and XVIII as the governing provisions, and alleges that the Grievant "was terminated without
cause'", adding that the "Sheriff was arbitrary and capricious in his decision to terminate
cause." Myron Schuster, the County Administrator/Human Resources Director, responded to
grievance in a letter dated December 18, 2001, which states:
. . .
(The Grievant) was terminated prior to the expiration of his
extended probationary period. The
probation extension had been agreed to by all parties . . .Therefore, (the
Grievant) does not have any
recourse through the Grievance Procedure of the Agreement.
. . .
This position prompted the discussions that led to the parties' agreement to submit the
above to arbitration.
The "probation extension" referred to in Schuster's letter reads thus:
LETTER OF AGREEMENT
THE BURNETT COUNTY LAW ENFORCEMENT ASSOCIATION
Based upon discussions, the parties agree to the following:
1. The probationary period for (the Grievant) shall
be extended for six (6) months beginning
June 21st, 2001 and ending December 21st, 2001.
2. (The Grievant) shall be
permitted to utilize accumulated vacation and sick leave following
completion of twelve (12) months of employment (June 20th, 2001).
3. During the probationary
period extension, (the Grievant) shall have periodic reviews with the
Chief Deputy and Sheriff to identify performance deficiencies, establish required
objectives and review performance progress.
4. This Agreement shall be for
this case and this case only and shall not be deemed a precedent
setting matter for any other situation.
Schuster negotiated the terms of this agreement, which is
referred to below as the Extension
Agreement, with Gary Gravesen, an Association Bargaining Consultant.
Schuster was the sole witness at the arbitration hearing. He testified that toward the
the Grievant's probation period, he sent a reminder to the Sheriff's Department that the
needed to act to either retain the Grievant as a non-probationary employee or to terminate
his employment. After some discussion involving departmental supervision, the
County decided that
terminating the Grievant's employment prior to the end of his probation period was the most
outcome, but also decided to approach the Association concerning the possibility of extending
probation period. Schuster and Gravesen discussed the matter, ultimately agreeing to the
Schuster testified that the discussions that led to the Extension Agreement preceded
expiration of the Grievant's probation period. The County ultimately determined that the
to the Extension Agreement was "probably" termination, but that the six month extension
was a more
reasonable outcome. He noted that the parties did not discuss whether the Association could
grievance concerning the application of the Extension Agreement, or what, if any, right the
Association could assert concerning a probation period. He prepared the original draft of the
agreement and mailed it to Gravesen under a cover letter dated June 12.
Gravesen formally stated the Association's agreement in principle to the Extension
in a letter to Schuster dated June 22, which states:
On behalf of our affiliate, Local No. 221, Burnett County Deputy
Sheriff's Association, the
Wisconsin Professional Police Association/Law Enforcement Employee Relations Division
agrees to the extension of probation of our member . . . assuming he has been served and
extension of probation on or before June 20th, 2001 as your side letter of
agreement dictates in your
correspondence to the undersigned, dated June 12th, 2001.
It is my understanding that not at any time
up to June 12th, 2001, has (the Grievant) ever been
advised of his performance not being to standard. Because of the vast investment made by
in entry level employees, due to the fierce competition for quality applicants, it is my view
professional law enforcement managers today undertake periodic evaluations with their
employees to advise them as to strengths and/or weakness that may need improvement. It is
unfair in my view to keep an employee unawares that there may be a potential work
problem, and then wait until the eleventh hour to inform the employee that their individual
performance may not be up to standard.
Both WPPA/LEER and the Burnett County
Deputy Sheriff's Association sincerely hope that
during the campaign for the current term of Burnett County Sheriff, when (the Grievant)
his first amendment privilege to write to editors of the local newspapers concerning his
issues in the sheriff's campaign, has nothing to do with his being placed on extended
Regardless of employment status, every citizen of this country has free speech rights under
constitution. Wisconsin Statutes clearly let law enforcement officers speak out on
matters of public concern, as long as they
are not in an on-duty capacity while exercising their
free speech rights.
In closing, I sincerely hope that the current
administration keeps its' obligation to meet regularly
with (the Grievant) to discuss his performance status during the period of probation
mandated in the parties side letter of agreement concerning (the Grievant's) extension of
status. . . .
Schuster and Gravesen discussed the Extension Agreement after this letter, but those
not produce any alteration of the draft that Schuster mailed to Gravesen on June 12. On
2001, the Grievant signed the Extension Agreement. Three Association officials signed the
on June 28. Three County officials signed the document on July 10 and July 11. Schuster
copy of the executed agreement to Gravesen under a cover letter dated July 11. Schuster
that none of the signers of the Extension Agreement questioned the timing of the signatures
validity of the agreement.
Schuster also noted that in 1996 and in 1999 the County terminated a probationary
in the position of Dispatcher/Jailer. Neither action produced a grievance.
Further facts may be set forth in the
DISCUSSION section below.
THE PARTIES' POSITIONS
The Association's Brief
After an overview of the evidence submitted, the Association argues that the parties
to extend the Grievant's probationary period, but the agreement demanded that "(i)t had to be
completed in its entirety prior to the expiration of the probation." The evidence establishes
execution of the agreement "was not even close" to the stated deadline. The Grievant was
probationary employee under the terms of Section 5.01 at the time he signed the agreement.
he was a non-probationary employee at the time he filed the grievance, the Grievant comes
just cause provision.
Even if the agreement had been timely executed, "there is clear and compelling
support (a conclusion) that arbitration is appropriate for the instant matter." The Extension
Agreement is an amendment to the Collective Bargaining Agreement that applies only to the
Grievant. The agreement is conditioned on the County granting the Grievant access to
sick leave benefits and on the Chief Deputy and Sheriff performing "very specific
requirements" including the communication of clear direction and "performance progress
These objectives are the cornerstone of just cause, and to assert that the County agreed to
if they could not be enforced through arbitration fails to honor the mutual intent underlying
Beyond this, Article III makes the reasonableness of County action grievable, even by
probationary employee. Articles V, X and XVIII underscore the right of any employee to
adverse County action, particularly discipline. The County's assertion that a probationary
has no access to arbitration rests on an implication that cannot persuasively stand in the face
express contract language to the contrary. To accept the County's view demands concluding
the Association agreed to specific requirements that could not be enforced. Such a
"severely tests the logic of any reasonable person and must be rejected."
The Association concludes that "the grievance is arbitrable" and "suggests the
standard is just cause" based on the untimely execution of the Extension Agreement. In the
alternative, the Association "suggests at a minimum the letter of agreement extending the
contain an appropriate standard."
The County's Brief
After an overview of the evidence, the County contends that Section 10.01 clearly
unambiguously makes the grievance not arbitrable. The agreement to extend the Grievant's
period "is separate and apart from the collective bargaining agreement" and Section 10.01
that a grievance focus on the interpretation of "this Agreement." Since the Extension
distinguishable from the Collective Bargaining Agreement, it poses no issue arbitrable under
Collective Bargaining Agreement.
Even if Section 10.01 did not exist, "Section 5.02 precludes the matter from being
Section 5.02 precludes "probationary employees from having access to the grievance
appeal disciplinary or discharge actions taken against them while they are still on probation."
Grievant was continuously on probation while a County employee, and thus has no access to
grievance arbitration under the clear and unambiguous terms of Section 5.02. Judicial as
arbitration precedent underscore this conclusion. To determine otherwise "would be
purposes of this matter, the restrictions set forth in Section 5.02." This runs afoul of the
Bargaining history and past practice support the conclusion that the parties denied the
Grievant access to arbitration. Schuster testified, without contradiction, that the parties
extend the one year probation period for a period of six months. Thus, it follows that "the
was never off probation." That the parties extended certain vacation and sick leave rights to
Grievant has no bearing on whether he continued as a probationary employee. That the
offered no evidence to rebut this "speaks volumes" regarding the merit of the County's
Similarly, Schuster offered unrebutted testimony that the agreement to extend the
period occurred prior to June 21, 2001. The parties did have difficulty reducing their
writing. This difficulty, however, had to do with the time necessary to secure all signatures,
nothing to do with the substance of the agreement. The executed agreement is effective, by
from June 21, 2001 until December 21, 2001. Each of the signatures of the agreement
terms. None of the signing parties "contemporaneously raised the argument that the
invalid." The agreement is, therefore, "a valid and binding agreement which was knowingly
voluntarily signed by the parties." The absence of rebuttal testimony from the Association
point is telling. In the absence of the agreement to extend, the County would have
Grievant well before December. It follows that the "Union's shallow effort to play 'gotcha'
That two other law enforcement employees were terminated during a probation period
without any attempt to grieve the matter establishes a binding past practice. The absence of
evidence from the Association confirms this conclusion.
Viewing the record as a whole, the County requests "that the Arbitrator dismiss the
in its entirety."
The Association's Reply Brief
The Association contends that the County "has grossly misstated the Collective
Agreement." Section 5.02 does not clearly and unambiguously deny the Grievant the right to
It provides the just cause standard to non-probationary employees, but does not deny
employees the right to grieve. As noted in its initial brief, the agreement in at least three
provides the right to grieve to probationary employees. Viewed as a whole, the "Collective
Bargaining Agreement removes 'just cause' as a right for probationary employees who are
discharged and nothing more." At a minimum, the parties agreed to provide the Grievant
contractual benefits and "some of the basic tenets of just cause." Thus, the parties agreed to
Article V, and under the judicial and arbitration precedent cited by the County, arbitration
Evidence regarding past practice is, at best, debatable. The evidence fails to show
grievance was filed. This lack of clarity makes only one conclusion possible: "There is
County arguments regarding the Extension Agreement are internally inconsistent. On
hand, the County asserts that an agreement to extend the probationary period to a period of
one-half years, in contradiction to the terms of the Collective Bargaining Agreement that set
year probation period, is enforceable as part of the Collective Bargaining Agreement. On the
hand, the County contends that the letter to extend the
probationary period "has no relationship to the Collective Bargaining Agreement."
or read in light of arbitration precedent, this is an "absurd" position. If the side letter is not
enforceable, then the Grievant is a non-probationary employee because he served more than
as a County employee. Bargaining history supports the Association's, not the County's,
Under the terms of the Collective Bargaining Agreement, the Grievant became a
non-probationary employee on June 21, 2001. There was no written agreement to overcome
fundamental fact. This is no "gotcha" effort, but a valid and enforceable reading of the
Bargaining Agreement. If this is not the case, the Extension Agreement is enforceable
The County's Reply Brief
The County contends that the "Union's case rises or falls on whether the grievant was
probationary employee at the time of his termination." A review of the evidence establishes
Extension Agreement is valid, and made the Grievant a probationary employee. That the
may have believed the Grievant became non-probationary is no more than belief. It
evidence to support this belief and "it was their burden to present it."
The Extension Agreement did not amend the Collective Bargaining Agreement nor
incorporated into it. Whether or not it was, probationary employees have no access to the
procedure under Section 5.02. Association attempts to belittle the evidence of past practice
not obscure that the Association produced no rebuttal evidence.
Nor does the enforcement of Section 5.02 establish that the Association received
negotiating the Extension Agreement. The Grievant "received the opportunity to prove to the
County that it made the right decision when it hired him."
The Association's attempt to overcome the effect of Section 5.02 is unpersuasive.
testimony on its bargained purpose is unrebutted. Beyond this, Sections 10.03 and 18.03 are
provisions that apply to non-probationary employees generally. Section 5.02 is a specific
governing how an employee becomes a non-probationary employee. The specific terms of
5.02 must trump the more general terms of the other provisions.
The parties state the issue somewhat differently, but the differences are not
the issue is essentially stipulated. The standards governing the enforcement of an agreement
arbitrate date to the Steelworkers' Trilogy. United Steelworkers v. American Mfg. Co.,
363 US 564 (1960); United Steelworkers v. Warrior & Gulf Navigation Co., 363
(1960); United Steelworkers v. Enterprise Wheel & Car Corp., 363 US 593 (1960).
Wisconsin Supreme Court incorporated, from the Trilogy, the teaching of the limited
by a reviewing authority in addressing arbitrability issues. Dehnart v. Waukesha Brewing
Inc., 17 Wis.2d 44 (1962) The Court, in Jt. School Dist. No. 10 v. Jefferson Ed. Asso.,
this "limited function" as a two element analysis:
The court's function is limited to a
determination whether there is a construction of the
arbitration clause that would cover the grievance on its face and whether any other provision
contract specifically excludes it. 78 Wis.2d 94, 111 (1977)
The Jefferson Court held that unless it can "be said with positive assurance that the
clause is not susceptible of an interpretation that covers the asserted dispute" the grievance
considered arbitrable. 78 Wis.2d at 113.
Section 10.01 broadly defines a "grievance" as "any difference or dispute regarding
interpretation, application or enforcement of the terms of this agreement." The parties do
that the Grievant's position, even when probationary, is within the bargaining unit
represented by the
Association. Section 3.01 D, and Section 18.01 place limits on the County's authority to
and Section 18.03 makes the appeal of discipline through the grievance procedure available
employee." Thus, the first element of the Jefferson test is met, since the arbitration clause
construed to cover the grievance on its face.
The second element is whether any other provision of the labor agreement excludes
grievance from arbitration. This element turns on Section 5.02. In the absence of the
Agreement, Section 5.02 bars the grievance from arbitration in a manner sufficiently
to permit no room for arbitral interpretation. Section 5.02 underscores that non-probationary
employees can be "disciplined or discharged for just cause only." It makes "all rights and
under this working Agreement" contingent on "satisfactory completion of the probationary
which Section 5.01 sets at one year. The use of "full recourse" to the grievance procedure
introduces an ambiguity, since it can be read to imply either no recourse or limited recourse
procedure for probationary employees. However, this ambiguity falls short of granting
latitude to extend the just cause provision to a probationary employee seeking to enforce it
Association citation of Section 10.02, 18.01, 18.02 or 18.03 does not undercut this
conclusion. At most, the provisions establish an arguable conflict with Section 5.02. The
if arguable, does not provide a persuasive basis for reading Section 5.02 as anything other
specific bar of grievance arbitration to a probationary employee seeking to enforce a just
standard. Section 5.02 specifically addresses this, unlike the general provisions
cited by the Association. Significantly, the more general provisions cited by the
within the "all rights and privileges" reference within Section 5.02. There is, then, no
to find a contradiction within the Collective Bargaining Agreement, and Section 5.02 is
to the provisions cited by the Association. In sum, without regard to the Extension
Section 5.02 bars arbitration, under the jefferson analysis, of a grievance seeking a just cause
of the termination of a probationary employee.
This poses the fundamental difficulty with the grievance, which is the relationship of
Extension Agreement to the Collective Bargaining Agreement. The County asserts that the
must rise or fall on whether the Grievant was a probationary employee at the time of
that the grievance must fall because even in the absence of any evidence on the merits, he
found probationary. This presumes the enforceability of the Extension Agreement as part of
Collective Bargaining Agreement. In the absence of the Extension Agreement, the
beyond one year, under Section 5.01, "shall be evidence that the employee has satisfactorily
completed" the probation period. Whether or not that "evidence" is sufficient to establish
completion of the probation period, it establishes the inoperability of the bar to arbitration
Section 5.02. At a minimum, the arbitrable issue would be whether or not the Grievant
completed the probation period. Without the Extension Agreement, the terms of Section
be enforced as written.
The County asserts that the Extension Agreement can be considered in the
Section 5.01, but cannot be considered the source of a grievance under Section 10.01
because it is
not part of "this Agreement." As the Association persuasively points out, this position is
inconsistent and thus unpersuasive.
The impact of this conclusion on the arbitrability analysis is the fundamental
difficulty posed by the grievance. The relationship of the Collective Bargaining Agreement
Extension Agreement is not clear and unambiguous. Past practice and bargaining history are
persuasive guides to resolve such ambiguity, since each focuses on the conduct of the parties
intent is the source and the goal of contract interpretation. Evidence of past practice is
or unhelpful. There is no evidence of any prior Extension Agreement. That the County has
discharged two other probationary employees without provoking a grievance falls short of
establishing that the Association understood the terminations were not grievable. It is unclear
the evidence whether or not the Association and the affected employees accepted the actions
reasonable. In any event, the instances have no direct bearing on the impact of the Extension
Agreement. The issue here is whether the parties intended the Extension Agreement to be
enforceable, and if so, how.
Bargaining history viewed against the record developed to this point establishes the
enforceability of the Extension Agreement. It is first necessary to establish what is not
through arbitration. Section 1 of the Extension Agreement "extended" the "probationary
the Grievant for six months. This establishes that the parties did not agree to take the
probation. This means that the bar to arbitration of a just cause standard set in Section 5.02
honored. Thus, the grievance is not arbitrable to the extent the Association seeks to assert a
cause standard governing the Grievant's termination. That this is within the parties' mutual
is underscored by the first paragraph of Gravesen's June 22 letter. The Association
agreed to the extension. Without Section 5.02, there is no reason for reluctance. Nor does
the agreement was badly struck by the Association. In the absence of the Extension
Grievant's employment would, in all probability, have ended without recourse.
Sections 2 and 3 of the Extension Agreement establish that the parties agreed to
other than a Section 5.01 probation period. Schuster stated that Section 3 made express what
County did in any event. The fact remains that the parties made the requirement express.
this, the requirement was significant to the Association, as established by the final paragraph
Gravesen's June 22 letter, cited above. It is evident that the Association doubted whether the
Grievant had received the benefit of the requirements set forth in that paragraph and signed
Extension Agreement to secure them. Schuster's testimony and the County's reply brief
acknowledge the point. The parties agreed to extend six months to the Grievant to permit
learn of and to rectify performance based concerns if he could. This is the "more
outcome noted by Schuster. Put in terms of the Collective Bargaining Agreement, the
with the Association to define the exercise of its management right, under Article III, in a
other than that stated by Section 5.01. The "reasonableness" of the application of this
under the final paragraph of Article III, "subject to the grievance procedure."
Against this background, the grievance is arbitrable to the extent the Association
enforce the good faith compliance of the County with the Extension Agreement. This means
compliance with the requirements of Sections 2 and 3 can be litigated. This means that the
Association can adduce evidence regarding whether the County met the procedural demands
Section 3, and made a good faith evaluation of the Grievant's performance. This does not
Association can litigate a just cause review of the termination decision. That review is
Section 5.02. The parties can enter argument regarding the appropriate standard of review to
extent they deem necessary, but the standard cannot be just cause.
Before closing, it is appropriate to tie this conclusion more closely to the parties'
The contention that the Grievant became a non-probationary employee because the Extension
Agreement was not completed within the time frame noted in the first paragraph of
22 letter affords no persuasive guidance to resolve the grievance. Ignoring
that the June 22 letter sought compliance by June 20, it is evident that Gravesen and
discussed the execution of the Extension Agreement after delivery of the June 22 letter.
not to modify it in any respect, including its effective date of June 21. It is also evident that
signing the agreement claimed that it was unenforceable as written. The good faith
underlying the Extension Agreement is a two-edged sword, and the "extension" of a
period cannot persuasively be made into its "satisfactory completion" without disregarding
bargaining history underlying the document.
That Section 3 of the Extension Agreement incorporates concepts within just cause
of establishing a just cause requirement. Nothing in the terms of the Extension Agreement
bargaining history indicates the County waived the operation of Section 5.02. Similarly,
the terms of the Extension Agreement or its bargaining history indicates the Association
right to challenge County compliance with its terms.
The grievance filed by the Union on behalf of the Grievant is not substantively
the extent the Union seeks to enforce a just cause review of the County's decision to
Grievant's employment. The grievance filed by the Union on behalf of the Grievant is
arbitrable to the extent the Union seeks to enforce County compliance with the terms of the
Dated at Madison, Wisconsin, this 31st day of July, 2002.
Richard B. McLaughlin, Arbitrator