BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1752, AFSCME, AFL-CIO
Mr. Dennis O Brien, Staff Representative, Wisconsin Council
40, AFSCME, AFL-CIO, appearing on behalf of the Union.
Ms. Gale Mattison, Corporation Counsel, Marinette County,
appearing on behalf of the County.
The Union and Employer named above are parties to a 2001-2002 collective
agreement that provides for final and binding arbitration of certain disputes. The parties
requested the Wisconsin Employment Relations Commission to appoint the undersigned to
grievance of Emily Irish. A hearing was held on November 7, 2002, in Marinette,
which time the parties were given the opportunity to present their evidence and arguments.
parties completed filing briefs by January 2, 2003.
The parties ask:
Did the County have just cause to discipline Emily Irish on
2, 2002? If so, did it do so
according to Article 24 titled "Disciplinary Action" in the parties contract? If not, what is
The Grievant is Emily Irish, a correctional officer with the County for five years.
She has had
no prior discipline and was described by Sheriff Mike Kessler as a good employee. She was
a two-day suspension on May 2, 2002, for events that occurred in the evening of April 18
morning of April 19, 2002.
The Grievant was working her regular shift when Corporal Michael Haupt saw her
copies of something for a long period of time. Haupt is a bargaining unit member but is a
or supervisor when on duty with the Grievant or others. Haupt's statement is the following:
On 04-18-02 I was working a 12-hour shift with Officer Irish.
Sometime around midnight I saw
her making copies for a long period of time. I thought she was just making copies of needed
for jail use. A short time later I noted she had a folder and as going through these copies
made which were the daily shift logs of the jail. Unknown of the day/month/or year of
these. I told
her if she had made these copies to take out of the jail that I advised her not to. Officer
Irish then told
me if she was going to need a lawyer that she would need them. I then said that if I seen
that she was
going to remove them from the jail that I would inform Sgt. Majewski and Chief Waugus.
asked why I informed her that those daily logs should not be seen by anyone outside the jail,
she needed them for a legal matter that she should go about getting the copies in a proper
I then went down to the squad room and
placed a call to Sgt. Majewski and Per the Sgt I then
called Chief Waugus. These calls took place around 0145 hours. It was my belief that C/O
intended to remove these documents from the jail. There would be no other reason to make
of them being that the originals were here.
After speaking to Chief Waugus he
informed me to get the copies that were made and have
us both write reports on this incident. Also if there were further problems to inform Sheriff
I went back up to the jail control room
asked C/O Irish where the copies of the jail logs
were that she made, after the third time I asked her, she asked why I wanted to know. I told
I would need to get them from her. She told me that it was none of my business where they
or what she planned on doing with them. I then placed a call to Sheriff Kessler at his
0215 hours to inform him of this incident and that I believed that C/O Irish was being
by not telling me where those copies were. I also informed him that it was my belief that
these copies to remove them from the jail and the law enforcement building.
At 0231 Sgt. Majewski arrived and he
asked C/O Irish where these copies were in which she
told the Sgt. that they were in a filing cabinet in the Huber office.
Shortly after C/O Gregersen came up to cover the floor and I
went on an Emergency
detention transport to Brown County Mental Institution.
On April 30, 2002, Haupt wrote up the following to supplement the report above:
On 04-18-02 at about 0145 hrs I spoke to Chief Waugus about
C/O Irish making copies of the
jail log for what I believe was going to be for personnel use. He instructed me to obtain
from her. I went back up to the jail floor and seen that these copies were no longer sitting in
of her. I asked her three times where they were and then she did answer, she asked why I
know. I informed her that I was told by Chief Waugus to get them. She told me that it was
my business where they were or what she planned on doing with them. I then called Sheriff
at home around 0215. At 0231 Sgt Majewski arrived and C/O Irish told the Sgt. that they
a filing cabinet in the Huber office.
The Assistant Jail Administrator, Robert Majewski, also filed a report which states:
On 4-19-2002, at approximately 01:50, I received a call from
Corporal Michael Haupt. He stated
that he was calling from the squad room. He told me that he observed Correctional Officer
Irish making copies of jail logs. He asked her what she was doing. I don't recall the exact
he stated, but he said something to effect that it was for her lawyer. He said he told her that
should not leave the jail. He asked me what he should do. I advised him to call Chief
Waugus and/or Sheriff Kessler as that I was unsure what to do. At approximately 02:10 I
Chief Deputy Waugus at his home. He told me that he talked to Corporal Haupt, told him
should get the copies from Officer Irish and that both should write a report on what had
If she refused to give the copies to him that he should call Sheriff Kessler. I asked Chief
Waugus if I should go to the jail. He told me that he thought that was a good idea. At
arrived at the jail. Corporal Haupt informed me that he just got off the phone with Sheriff
and that Officer Irish would not give him the copies that she had made. I told Officer Irish
needed to give all the copies to me. She stated that this was a bunch of bullshit and that they
in the filing cabinet. I told her that I needed them. She said come with me. We went into
Huber/my office. She went to the tan filing cabinet, second (2nd) drawer
and took out a file folder.
She handed it to me and we returned to the jail office. After a little while Officer Irish
phone, talked a bit and then said it was for me. Sheriff Kessler was on the phone; we talked
the situation and he reiterated that statements must be written. At that time Corrections
David Gregersen came into the jail for an EM-1/ED transport. Corporal Haupt then left the
to go on this EM-1/ED.
I got off the phone with Sheriff Kessler and told Officer Irish that
a report must be written on
what had happened. Officer Irish asked me to come with her to my office. Once in my
asked why reports had to be written. I said because the Chief Deputy and the Sheriff both
had to be. She went on to say, something to the effect, that Chief Deputy Waugus and I had
Corporal Haupt that he should keep an eye on what she did. I told her that I did not recall
anything like that to Corporal Haupt. She then asked me why I had to come in. I said that I
responding to the phone call I received and what Chief Deputy Waugus said to me. She said
Corporal Haupt was accusing her of taking the logs out of the jail and that she didn't. I
what she was doing with them. She stated that she was reading them over. I asked her why
to make the copies if she was just reading them over. She said that she was going to
stuff and she couldn't do it on the logs. I said again that a report must be written. She
it had to be done by. I said right away seeing it's Friday. She said that she leaves at 06:00.
time it was approximately 03:00. I stated that she had the rest of the night to get it done.
As she left
my office she said again I am out of here at 06:00. The file folder (see attached) contained
jail daily logs for the month of July 2002. Some did not have dates (reverse side of front
stapled, two yellow sheets of lined paper (dividers) and nothing highlighted. End of report.
The Chief Deputy, Michael Waugus, filed a report on April 29, 2002, which states:
At approximately 0200 hrs, April 19, 2002, I received a phone
call to my home from Corporal
Mike Haupt. He stated that he believed Emily Irish was making unauthorized copies of
and intended to take them from the jail. I instructed Corporal Haupt to meet with Officer
request the documents be returned to him and that both officers should write a report
incident. The reports were to be completed before they left at 0600 hours on April 19,
2002. I stated
to Corporal Haupt that should he have any problems getting the copies from Officer Irish
should contact Sheriff Kessler about the situation.
After I hung up the phone, I received a
phone call from Sgt. Majewski who restated what
Corporal Haupt had just told me. I stated to Sgt. Majewski that he should go to the jail and
with Corporal Haupt and Irish to obtain a clarification as to what was occurring, and to
reports from both officers. I told him that I instructed Corporal Haupt to contact Sheriff
he had any further problems.
On my arrival to the jail at 1000 hours on
April 19, 2002, I found the reports from Corporal
Haupt, Officer Irish, and Sgt. Majewski, along with the copies of the documents, the July
logs. At 1740 hours, I met with Corporal
Haupt who expressed his concerns about working with Officer
Irish. I told him that I expected
him to continue to work in a professional manner with Officer Irish. I met with Officer Irish
approximately 1750 hours and told her the same thing, to act as a professional in her
Corporal Haupt. She stated to me that she was only making the copies to review them for
safety concerns. I told her that it was my understanding that Sheriff Kessler would be
reports, that I had a vacation day on April 20, a half day on April 21, and was off on April
22 and 23.
I told Officer Irish that she should not remove any documents from the jail without approval.
stated that she understood.
The Grievant's written report, also dated April 19, 2002, states the following:
On April 18th during my 12 hour shift 6P-6A I
was reading over copies of past daily log sheets.
Corp. Mike Haupt stated "do not take them from the jail. Bob Majewski (Sgt) and Mike
me to keep an eye on you and to report everything that goes on." Later in the evening Mike
asked where the log sheets were. I said don't worry I didn't take them they're still here. I
realize how serious of an issue he was making of this until I heard him call Sheriff Kessler at
0230 AM and was accusing me of taking the copies from the jail. He stated I was
couldn't work with me the rest of the night, one of us has to leave. Mike Haupt also called
Bob arrived at approx 0231 hours. When Bob came in he asked me where the log sheets
I showed him they were in the filing cabinet along with all the other log sheets. Bob stated
to me that
Mike Haupt called him earlier in the evening about the copies and Bob called Waugus. Bob
the office and went over the log. Sheriff Kessler called at approx 0245 and asked me what
on and I said I have no idea. He then asked to speak to Bob. Mike went on a transport at
0250. Dave Gregerson was called in to do. Dave stayed to work the floor. Bob stated that
Kessler and Wagus requested a report of the incident. Once again the false accusations are
made against me to slander my reputation. I believe I am being set up scrutinized and
unjustly by fellow co-workers and management. The stress that Marinette County is putting
through is taking a toll on my health.
The Grievant was given a two-day suspension by the Sheriff for violation of jail
failing to carry out a valid order of a supervisor, for violating the County code of ethics, and
dishonesty. While it appeared to supervisors and the Sheriff that the Grievant was going to
jail with documents containing privileged information, she did not take the documents out of
There is no dispute that the Grievant copied the documents of jail logs from July of 2000.
Sheriff Mike Kessler testified at hearing that he was called by Haupt regarding the
with the Grievant, that she was making several copies. She was making so many copies that
wanted to know what she was doing. Haupt told the Sheriff that the Grievant was not
with him. The Sheriff called back later and spoke to the Grievant. He did not recall that she
any reason for making copies. Haupt told the Sheriff that he was still having a problem with
Grievant. Sheriff Kessler had told Haupt to turn over the copies, and when Haupt asked her
copies, she did not give them to him. When the Sheriff investigated the incident, the
Grievant did not
give him a rational explanation for making the copies of old jail logs. Sheriff Kessler
matter a serious offense. The jail logs contain some confidential information that may not be
to the public. If the public requests copies of the jail logs, certain confidential information
on the logs
may be redacted before being disbursed to the public. The Sheriff was also concerned that
Grievant did not cooperate with Haupt. She was not authorized to make the copies of jail
According to the Sheriff, she was insubordinate when she refused to give Haupt the copies.
Grievant told the Sheriff she made copies for informational purposes and for a way to
job. The Sheriff was convinced that the Grievant made copies for her own personal use.
Haupt had observed that the Grievant was making a lot of copies, and he noticed that
were copies of jail logs. It was unusual for someone to be making copies for the length of
the Grievant was making copies. Haupt found no reason to make the copies since the
in the jail. When Haupt questioned the Grievant, she told him it was none of his business.
thought she was making them for personal reasons and was going to take them from the jail,
she told him that she was going to need a lawyer. He also figured that she was going to take
copies from the jail because there would be no reason to make so many copies when the
were there. Haupt asked the Grievant several times to give him the copies and she did not.
specifically told her that he had been told to get the copies. Haupt told her that he had called
Sheriff and Sergeant Majewski. She still did not give Haupt the copies. She did not tell him
she had done with the copies.
The Grievant never admitted that the copies she made were for her own personal use.
Grievant testified that Haupt asked her what she was looking at when she was reviewing the
she copied. According to the Grievant, she told him that she was just going over them. She
Haupt then went downstairs and she replaced the files while he was downstairs. She testified
did not believe that Haupt was giving her a direct order to give him the copies. When she
Majewski coming into the jail and heard Haupt on the phone to the Sheriff, she realized that
matter was serious. When Majewski came in, the Grievant showed him where the files were
filing cabinet where the originals were kept.
The Grievant testified that she made the copies to see if there were any security
they could remedy. She stated that she was looking for a correlation between security issues
amount of staff or visitation. With the new jail, employees were to give ideas about doing
differently, how many people they might need on staff. The Grievant was not
directed to make the copies. She stated she never told Haupt or Majewski that she
needed the copies
for her own personal legal problems. She said that she made copies so that she could
on the copies, since she couldn't mark on the actual logs.
The Grievant testified that there was no reason that she picked the logs for the month
of 2000. She admitted that that her husband was the jail administrator during that time. He
voluntarily left the County in August of 2000 and he was the Grievant's supervisor at the
time he left.
He was being investigated before he resigned.
The disciplinary notice cited a violation of jail policy 103.27, Section A. There
appears to be
a misunderstanding of which Section A one refers to fraternization between
employees and inmates,
and the other refers to employees altering, falsifying or misrepresenting facts on any form,
written report. The County believes the disciplinary action refers to the latter.
Amber Lynwood has worked as a correctional officer and is the Local Union's
and Steward. She has worked for the County for 16 years. Lynwood has testified that she
copies of jail logs in the past for the Sheriff or to highlight a mistake and correct a
has never made the amount of copies that the Grievant made during the incident at issue.
made copies either on requests or direction. Lynwood testified that most of the confidential
information would be on booking reports or inmate files rather than on jail logs. She was
of anyone who ever was disciplined for making copies.
Mary Scoon is the Union President and has worked for the County for 15 years. She
that the County has followed a progressive disciplinary pattern and given a written reprimand
suspending an employee. She has seen employees make copies for their own personal use
not aware of anyone being disciplined for making copies at the Job Center where she works.
had never seen anyone making the same volume of copies for personal use that the Grievant
THE PARTIES' POSITIONS
The County argues that the credibility of Irish and Haupt are at issue here and that
a more credible witness. His testimony is corroborated by his written report and the
reports of other witnesses, including the Sheriff. No motive was shown by any witness to
demonstrate that his testimony was anything but credible. Irish is not credible. The fact that
copied jail documents from the time period for which her now husband was under
credence to Haupt's testimony that she indicated the copying was for personal reasons and
intended to remove those documents from the jail. Her explanation that either she did not
direct her to give the copied documents to him or that he did not so direct her is neither
nor believable under the circumstances.
The County submits that the second issue regarding the proper discipline is a matter
contract interpretation. The County maintains the phrase ". . . may be discharged . . ."
discipline of any reasonable and appropriate nature including discharge. The Union argues
the language of the applicable section, the only discipline available to the County is
if the County does not discharge under 24.02, it must discipline pursuant to 24.03. The
that Irish has no previous disciplinary action and could not be suspended under Section
The County asserts that to interpret ". . . may be discharged . . ." to require
nothing would lead to ludicrous results. In the event an employee commits violations of a
serious enough to potentially result in discharge and then require the employer to discharge
no discipline certainly would not serve the interests of either the employer or the employee.
word "may" is permissive and allows the County to impose appropriate discipline including
If the parties had intended the only discipline available under Section 24.02 to be discharge,
parties would have used the language ". . . shall be discharged. . ." Therefore, the County
that the Grievant was properly disciplined under the terms of the existing agreement.
The Union asserts that Irish did not deserve to be suspended for her conduct, and
acknowledges that there should have been better communication between officers Haupt and
the documents and testimony fall far short of meeting the discipline imposed. The Union
the County violated the contractual due process of Article 24, and the incident has been
by referencing claims of insubordination, ethical violations, dishonesty and charges of
The Union contends that the County misapplies the disciplinary process described in
24. A reasonable interpretation of this article would state that the parties agree to a just
standard, that some offenses are so egregious that they may call for immediate discharge and
offenses will be addressed using a progressive discipline measure. The language ion Section
begins: "For all other offenses . . ." without referring to any offenses, because the other
clearing those listed in Section 24.02. Section 24.03 also states that no employee shall be
discharge under this paragraph unless he or she had previously been suspended for cause.
an implied reference to employees who may be discharged for just cause under other
sections of Article 24, as in the offenses listed in 24.02. The County has a wide choice of
the ability to deal with serious problems immediately and the opportunity to correct improper
behavior through warnings offered by progressive discipline. The Union contends that the
ignored the clear and unambiguous language of Article 24 by suspending the Grievant
her a written warning. The language of 24.03 states that an employee shall not be subject to
suspension without having been given a written reprimand.
The Union submits that the language of 24.02 does not imply that the County may
or take any other action it deems appropriate, and such an interpretation would render
the language of 24.03. The County could have discharged Irish for what it claims she did,
it chose not to discharge her, it was required to proceed under 24.03.
The Grievant is charged with a long list of violations, such as violation of jail policy
Sec. A, which is a policy about fraternization between jail inmates and employees. There
evidence that an inmate was involved in the incident at issue here. The Grievant was also
with failure to carry out a valid order of a supervisor, but Haupt testified that he did not
to Irish. There is a question of whether Irish understood that Haupt was issuing a valid
Majewski arrived, Irish immediately showed him where she placed the copies.
The Grievant is also charged with dishonesty, and the County has imputed bad
her conduct. It does not believe that she was conducting a personal examination of jail duty
work related purposes. The Union submits that the claim of dishonesty was not proven.
There is also
no evidence that Irish transgressed any ethical duty she bore.
Therefore, the Union contends that the County did not establish that Irish was in
any policy of her department or that it had just cause to punish her in the manner it chose.
In Reply, the County
The County claims that the Union misstates the jail policy violation noted regarding
103.27 Sec. A. The policy states that employees will not knowingly alter, falsify, or
true facts verbally or on any form, card or written report. This violation goes directly to the
of dishonesty. Sheriff Kessler testified that was the policy violated and Irish testified that she
aware of the policy.
While the Union questions whether Irish was given notice that her actions violated a
department rule, Irish testified that she had knowledge of the numerous rules and policies she
and that she was aware of the chain of command in the jail. The Union also argues that
there is a
question as to whether Irish ever understood that Haupt was issuing a valid order. Based
evidence, the County asserts that it is clear that even if Haupt did not initially give a direct
way of saying, "This is an order," he did convey orders given from superior officers. Irish's
of events is not credible.
In Reply, the Union
The Union observes that copying jail logs is not intrinsically wrong and there is no
prohibiting copying jail logs. Three levels of management or supervision demonstrated that
weren't quite sure of the jail policy. Irish made no attempt to conceal her actions because
she was not violating any work rule. The logs are not confidential documents. The
Sheriff has not
treated logs with a concern for their confidential nature that approaches the level in the
Irish did not copy records that contain confidential information. The County concedes that
was done Irish did not take the jail logs from the jail. Haupt overreacted, and the
County has not
proven that there was a clear, unambiguous rule prohibiting the copying of jail logs. The
that there seems to be old scores to settle, as the County attempted to bring Irish's husband
Regarding the contract interpretation, the Union contends that if someone's actions
discharge under the list offered in 24.02, then the County can makes its case and discharge.
cannot make its case or chooses not to discharge, the remaining option is not to impose no
the County as a further set of choices short of discharge under 24.03. The County
that the intent of the language in 24.02 was to let it choose any level of punishment it desired
the parties went on to create the language in 24.03.
First of all, the Grievant's testimony is not credible. Her statement that she was
the jail logs from July of 2000 for job improvement concerns, safety or security issues, etc.,
make any sense. Why would she just happen to grab the logs of July of 2000, a month
husband resigned as jail administrator and a time when he was under investigation? Why not
of July 2001? Or any other time? The fact that she copied a large amount of logs does not
sense if she was doing something work related those logs would be on the job site at
all times for
her review. Her claim that she needed copies in order to highlight items does not ring true.
The Union claims that there is no rule against copying jail logs, and others have done
the past. However, other employees have only copied specific logs in small amounts
not a large
amount like the Grievant copied. Moreover, the Grievant's use of the copies was more
personal use than work related. She made some statement about perhaps needing a lawyer.
would not have made up such a statement. Clearly, something was going wrong that
the Grievant's refusal to give Haupt the copies was an indication that she knew she was in
If the copying were related to her work, the Employer should have known or understood
Grievant was doing. However, no one could understand why the Grievant would be copying
amounts of jail logs from a couple of years ago.
The policy numbered 103.27 has three parts labeled "A" under I, II, and III. The
the wrong part and it knows it. The policy regarding fraternization is not the part at issue.
the County is concerned about misrepresenting facts. While the Union wonders whether
a valid order or was a supervisor, the Grievant knew that he was a lead worker and her
on that shift. Her refusal to give him the copies as he requested is what escalated this
dispute in the
first place. The Union states that no harm was done because the copies never left the jail,
was because Haupt interrupted her and stopped her from doing so.
In sum, the Arbitrator finds that the County had just cause to discipline the Grievant.
disciplinary action of a two-day suspension may be given under Article 24 of the collective
agreement. Article 24 Disciplinary Action states:
24.01 Disciplinary Action.
No Employee shall be reprimanded, suspended or discharged except
for just cause.
Dismissal. An Employee may be discharged for the following
offenses without warning
A) Failure to
carry out the valid orders of a supervisor;
B) Use of abusive language toward
person while on Courthouse premises;
C) Intoxication while on duty;
D) Unauthorized possession or use of
F) While on duty, deliberate misconduct
which results in damage to any person or property;
G) Failure to notify supervisor of absence
from work on three (3) separate occasions during
any one (1) year period.
Any Employee who is discharged, except probationary, shall
given a written notice of the
reasons for the action, and a copy of the notice shall be made a part of the Employee's
history record, and a copy shall be sent to the Union secretary. Any Employee who has
discharged may appeal by giving written notice to h/er supervisor within fourteen (14) days
dismissal. Such appeal shall go directly to arbitration.
Progression. For all other offenses, the progression of disciplinary action
A) Oral warning
B) Written reprimand;
C) Suspension, not to exceed five (5)
An Employee shall not be subject to
disciplinary suspension unless s/he had been given a
written reprimand on a prior occasion, and no Employee shall be subject to discharge under
paragraph from employment unless s/he had
previously been suspended for cause. The Employee shall have
the right to have any matter
under this paragraph arbitrated as set for the in 23.02. Any disciplinary action taken by the
against an individual Employee shall be reduced to writing, stating therein the reason for the
disciplinary action. The individual Employee and the Union shall be given copies of the said
and a copy shall be placed in the Employee's personnel file. All disciplinary action taken
paragraph shall be removed from the individual Employee's record after passage of two (2)
The Arbitrator agrees with the County's interpretation of Article 24. The use of the
"may" in 24.02 is permissive the County may
discharge employees for those offenses listed without
using a progressive disciplinary measure, but it does not have to discharge them. It may do
something else. Section 24.03 does not apply in this case, because it says: "For all
other offenses .
. ." This is not some "other" offense, such as tardiness or the dozens of things that could
Section 24.03. This case falls squarely under Section 24.02 for the failure to carry out the
orders of a supervisor and dishonesty. The Union's interpretation of Section 24.03 would
sense, because it would have any offense in which the County did not discharge someone
Section 24.03, when the language refers to offenses other than those listed in Section 24.02.
Union were correct, the County would have to discharge everyone for offenses listed in
24.02 or it
could not then bring them under the progression listed in 24.03. It would be an all or
situation. Certainly the parties contemplated something less than discharge when they used
"may" in 24.02.
A two-day suspension is perhaps not the disciplinary measure the Arbitrator would
preferred for this incident, but the Arbitrator will not second guess every disciplinary
discipline is warranted unless that disciplinary measure is clearly excessive, unreasonable, or
management has abused its discretion. The suspension will stand as it is reasonable and not
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin, this 21st day of January, 2003.
Karen J. Mawhinney, Arbitrator