BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PORTAGE COUNTY COURTHOUSE, HEALTH CARE
AND HUMAN SERVICES, AND LIBRARY SYSTEM
LOCAL 348, AFSCME, AFL-CIO
(Kathleen Prior Grievance)
Mr. Gerald D. Ugland, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, on behalf of the Union.
Ms. Therese M. Freiberg, Portage County Personnel Director,
on behalf of the County.
The above-captioned parties, herein "Union" and "County", are signatories to a
bargaining agreement providing for final and binding arbitration. Pursuant thereto, hearing
in Stevens Point, Wisconsin, on April 22, 2002. The parties there agreed that I should retain
jurisdiction if the grievance is sustained and they subsequently filed briefs that were received
Based upon the entire record and arguments of the parties, I issue the following
Since the parties were unable to jointly agree on the issue, I have framed it as
Did the County violate Article 3 of the contract when it refused to
let grievant Kathleen Prior
return to work because of injury and, if so, what is the appropriate remedy?
Prior, a Deputy Clerk II, has worked in the County's Clerk of Courts office since
injured her back and missed several days of work in December, 2000. Prior received
her back from Rice Medical Center which on December 13, 2000 (unless otherwise stated,
herein refer to 2000), provided a note to Clerk of Circuit Court Bernadette Flatoff stating she
return to work on December 13 with the following restrictions: "10-15 lb. Lifting limit. No
to floor level. Will be unable to work remainder of work day after scheduled due to
(County Exhibit 2).
Prior, who had no sick leave at the time, presented another medical certification on
18 stating she could work with the following job restrictions: "She is capable of working
with 15 lb.
lifting limit. No bending to floor level. She has to retrieve a scanner device that falls to
her computer 15-20 times a day because of inadequate work station set-up." On December
worked about 4.5 hours before being told she could not work because of the medical
placed on her. On December 20th or 21st, Prior furnished
the County with a Return to Work Order
provided for by her doctor stating she could return to work on December 22 with "No
and she subsequently returned to work on December 22 without incident.
Diane Cramlet, a long-term court reporter for the County courts, testified that court
a given date "could weigh five or ten pounds"; that, "But to me 15 pounds would be a pretty
weight for a file to weigh"; and that Court Clerks normally "don't bend for anything."
Prior testified that she works in a small, cramped space that was not "ergonomically
that she experienced great difficulty whenever she had to retrieve a computer wand that fell
desk about 15-20 times a day; and that that problem was not rectified until after she returned
on December 22. She performed her work duties without incident between December 13-18
one else had to perform any of her lifting duties during that time. She said she was told on
18 that she had to leave because the personnel department has a "zero-100 percent policy" of
employees home if they cannot perform all of their job duties, and that she was instructed on
December 18 to fill out a workers'
compensation form which she did, after which time she was sent home. That claim
was rejected the
next day. (County Exhibit 5).
She on December 19 presented management with a doctor's note stating she could
provided that she not lift anything over 15 pounds, and provided further that she not bend
the floor. (Union Exhibit 1). She worked 4.5 hours on December 19 before she was sent
added that she never has lifted or carried anything weighing 15 pounds; that the doctor
County she could do all of the essential duties in her job description but for lifting 20 or
and but for excessive bending (Union Exhibit 1); and that she hurt herself on December 12
worked late and did filing work.
On cross-examination, she testified that she did not work on December 14; that she
December 15-18; and that she spends about half of her time doing office work and the other
doing courtroom-related work.
Deputy Register-In-Probate Sandy Gagas testified that she formerly worked as a
Clerk 2 alongside Prior; that Prior's scanner pen regularly fell to the floor and that Prior had
retrieve it about ten times a day; and that Prior and Deputy Clerks never carried anything
Union President Collene Ottum testified that if employees receive a worker's
injury, "they work within the restrictions and the employee returns to work. If it is a
related incident, there is no consistency." On cross-examination, she said that employees
restrictions were not always allowed to return to work after non-related injuries; that such
were handled on a case-by-case basis; and that most involved weight restrictions.
Clerk of Circuit Court Flatoff testified that Prior missed work on December 14
and 15 and
that she reported sick on the morning of December 18; that she met with Prior on December
discuss her work restrictions; that she, Flatoff, sent Prior home after she was told by the
department that employees were not allowed to return to work if they have medical
do not match a person's job description; and that she ordered Prior to leave work on
because those restrictions were still in place. She said that Prior's job description calls on
her to lift
storage boxes that weigh up to 20 pounds; that employees must be able to lift such boxes at
that employees regularly stretch and reach; that she told Prior, "You have restrictions here
cannot do anything with as a non-work related illness or injury"; and that she has not created
duty positions in her office.
On cross-examination, she testified that she has not seen any Deputy Clerks pick up
Recalled as a witness, Prior testified that she worked on December 13; that she did
on December 14; that she worked until 1:30 p.m. on December 15; that she worked between
a.m. and 1:15 p.m. on December 18; that she worked until 12:30 p.m. on December 19; and
did not work on December 20-22. She denied ever refusing to leave the courtroom on
and said that it was "always maintenance" personnel that removed very heavy boxes.
Flatoff also was recalled as a witness and testified about the heavy boxes that had to
When asked about Prior's testimony, she said: "I would agree with Kathleen to a point. . .",
added that Prior regularly crouches as part of her job.
POSITIONS OF THE PARTIES
The Union asserts that the County violated Article 3(A)4 of the contract by refusing
Prior return to work because she, in fact, "could do her work"; because it was the County's
responsibility to fix the faulty scanner on her desk so that the wand did not drop on the floor;
there was no need for Prior to carry anything over 15 pounds; and because there was very
bending involved in her job. As a remedy, the Union asks that Prior be paid the 22.25 hours
not allowed to work.
The County asserts that the grievance is without merit because it is not required to let
employees work with medical restrictions that can result in further injury; that it is not
create "light duty in any circumstance"; and that no past practice supports the Union's
The County also claims that the testimony of the Union's witnesses relating to the Deputy
job duties "was not credible"; that those job duties entail considerable lifting and bending;
the "Job description accurately reflects the actual requirements of the position of Deputy
A key factual issue centers on exactly what duties Prior regularly performs. While
asserts that the testimony of the Union's witnesses should not be credited, I find that Prior,
Gagas, and Ottum all testified truthfully when they pointed out that Prior hardly ever lifts
weighing 15 pounds or more, a point corroborated by Flatoff herself who admitted that she
give even one example of where Prior in the past has had to lift and/or carry that much
addition, Prior did not lift anything that heavy when she returned to work on December 19
December 22 when her restrictions were finally lifted and when she finally was allowed to
work. Hence, even though Prior's job description states that she sometimes must lift up to
pounds, there is no proof that Deputy Clerk II's have ever done that in the past.
The County also asserts that Prior's medical restriction prevented her from bending
a regular basis and that the Union's witnesses tried to downplay the regularity of her doing
I disagree. For while the record fails to establish exactly how much bending is
Prior's job, the record does not establish that such bending down, no matter how much there
constituted a sufficient basis for not allowing Prior to return to work. Prior on
performed all of her job duties, including bending, without incident before she was sent
home and that
she similarly performed all of her duties, including bending, after she returned to work for
December 22. In addition, the County, not Prior, was responsible for fixing the problem
wand falling down which is something it did after Prior returned to work.
Hence, there is no objective evidence that Prior could not properly perform her job
time she was not allowed to work. The County's refusal to let her work violated Article 3 of
contract because the County lacked a legitimate basis for not letting her work and because
the right to work her regular work schedule as provided for in Article 19, Section
A(2), of the
The larger question is whether the County, as a matter of policy, must make
accommodations for employees who are not injured on the job and who have medical
placed on their ability to return to work to their regular job duties. The County thus states,
6 of its brief: "It is an employer's right and responsibility to protect the safety of employees
refusing to allow the employee to work where there is a question about the employee's
perform the required work safely."
That certainly is true as a general proposition provided, however, that an employee,
cannot perform his/her regular duties because of a medical restriction. Here, Prior
could perform her
regular duties, which is why her grievance is being sustained. This ruling, though, is limited
unique facts of this case, which is why it is unnecessary to address the broader question of
be done in other circumstances.
In light of the above, it is my
1. That the County violated Article 3 of the contract when it refused to let
Kathleen Prior return to work after her injury.
2. That to rectify that contract violation, the County shall immediately reimburse
Prior for the 22.5 hours she was not allowed to work.
3. That to resolve any remedial questions that may arise over application of this
I shall retain my jurisdiction for at least thirty (30) days, and I will extend it if necessary to
Dated at Madison, Wisconsin, this 3rd day of September, 2002.