BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WINNEBAGO COUNTY (SHERIFF'S
WINNEBAGO COUNTY SHERIFF'S PROFESSIONAL
LOCAL 107, LAW
Mr. John A. Bodnar, Corporation Counsel, Winnebago County,
448 Algoma Boulevard., P.O. Box 2808, Oshkosh, WI 54903-2808, on behalf of
Mr. Thomas A. Bauer, Labor Consultant, Labor Association of
Wisconsin, Inc., 206 South Arlington Street, Appleton, WI 54915, on behalf of Local 107.
According to the terms of the 2001-03 labor agreement between Winnebago County
(hereafter County) and Winnebago County Sheriff's Professional Police Association
Association), the parties jointly requested that Sharon A. Gallagher be appointed as impartial
arbitrator to hear and resolve a dispute between them regarding the promotion to Sergeant in
Division of the Sheriff's Department of Mark Habeck over Grievant Roger Peters. Hearing
scheduled and conducted at Oshkosh, Wisconsin, on March 19, 2003. A stenographic
the proceedings was made and received on April 14, 2003. The parties agreed to exchange
briefs directly with each other postmarked May 30, 2003, with a copy to the Arbitrator. The
reserved the right to file reply briefs. On June 3, 2003, the Association advised it would not
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 Arbitrator should resolve the following issues in this
Did the County violate the collective bargaining agreement
it promoted Mark Habeck
to the rank of Sergeant? If so, what is the appropriate remedy?
Persons selected for placement into any rank above that of
Police Officer/Corrections Officer
shall be selected from a list of the three candidates who score highest in the competitive
examination for named ranks administered by the State of Wisconsin or appropriate alternate
This written exam shall be appropriate to the position. (In the event that tie scores in the
exam result in more than three finalists, the number of finalists shall be increased to include
having the same score as the third highest finalist.)
In order to be eligible to write the
competitive exams for promotion, candidates must meet
or exceed the following minimum length of service requirements for the respective ranks at
1. Corporal Exam - 2 years of
for the Jail Division or 3.5 years for the Patrol
Division in the department.
2. Detective Exam - 3.5 years of
service in the department and a minimum of 2 years in
3. Sergeant Exam - 5 years of service
in the Department.
In addition to meeting the length of
requirements, actual promotion shall be contingent
upon the candidate's meeting or exceeding the following minimum time-in-grade
requirements for the
1. Corporal - 1 year
experience in the division in which the vacancy exists.
2. Sergeant - 1 year
experience in the division in which the vacancy exists. (This
provision does not apply to positions within the Support Services Division).
Upon completion of the examination process, the results shall
posted by social security
number, and the Association shall be provided with a copy. The results shall remain valid
for a period
not to exceed two years. In the event that the list of eligibles contains less than the names of
individuals having passing scores, a new test shall be conducted and a new list prepared.
Once a vacancy occurs, the names of the
top three candidates for promotion shall be
presented to the Sheriff. In the event that the first person selected turns down the offer of
the Sheriff shall be given a new list of three names excluding the name of the individual who
down the offer of promotion. In the event of vacancies in more than one rank, the vacancy
highest rank shall be filled first.
STIPULATIONS OF THE
1. Appendix B governs the promotional procedure for promotion from the ranks
Corporal, Sergeant and Detective in the Winnebago County Sheriff's Department.
2. At the time that the test procedure was administered relevant to this grievance,
Appendix B contained in the 1998-2000 contract was in effect.
3. The Association agreed that the remedy for not allowing Habeck to take the
February, 2001, was to allow Habeck, Cianciolo and Vendola-Messer to take the test in
Originally, the Association had only suggested and desired that Habeck take the test in June,
4. A single promotional test was given in February and the same single test was
in June, 2001, for both the Sergeant and Corporal position openings in the Department.
5. Roger Peters filed a sex discrimination lawsuit against the County with the
Department wherein Peters alleged that he was not given light duty following a disability
a female officer had been given such duty. The lawsuit was later settled by the parties.
Sheriff Michael Brooks has been the County Sheriff for approximately the past nine
During Brooks' tenure, the Department has consistently given a single examination (the same
every two years for all Corporal and Sergeant openings. After each exam was graded, a
eligibility list was generated of all test takers, listing them from highest to lowest score.
list was then posted in the Department as the eligibility list for all
future openings in the Corporal and Sergeant positions. 1/ Human Resources would
then give the
Sheriff a list of the top three scoring employees for his consideration whenever an opening in
Corporal or Sergeant positions became available.
1/ The County has Corporal and Sergeant
positions in both the Jail and Patrol Divisions of the Department.
During his nine year tenure as Sheriff, Brooks announced to Department employees
occasions that it would be his policy to promote the person who receives the highest test
Corporal and Sergeant openings and that he would then go down the eligibility list for later
promotions to Corporal and Sergeant vacancies. However, on three occasions during his
Sheriff, Brooks passed over the highest scoring employees (Mike Woods, Chris Keller and
Cianciolo) to promote one of the two next highest scoring employees on the
Brooks stated that he did this due to prior disciplinary actions taken against the highest
employees in those cases. The Association did not file any grievances over these
In addition, the Association has filed no grievances over the Department's use of the
promotional test for both Corporal and Sergeant openings. Nor has the Association grieved
that the Department maintains one eligibility list (ranking employees who tested by their
both Corporal and Sergeant positions.
The Grievant, Roger Peters, has been employed by the County in its Sheriff's
the past approximately 12 years. Peters was hired into the Jail in 1991 where he was
Corporal (after having taken a Corporal/Sergeant exam) in 1993. Peters remained employed
Corporal in the Jail Division until 1994 when he took a position as a Patrol Officer (a cut in
Peters is currently employed as a Patrol Officer in the Department. On January 18, 2001,
Resources Department of the County posted the following promotional test announcement:
The Winnebago County Human Resources
Department, on behalf of the Sheriff's Department,
will be conducting promotional testing on February 22, 2001 for both Sergeant and Corporal
positions. Per the collective bargaining agreement, you are invited to participate in this
process if you meet or exceed the following minimum length of service requirements and
time-in-grade requirements for the respective rank at the time of examination:
Sergeant Exam: 5 years of service in the Department; 1
year experience in the
Division in which the vacancy exists.
Corporal Exam: 2 years of service for
the Jail Division or 3.5 years for the
Patrol Division in-the Department; 1 year experience in the Division in which the vacancy
Please notify the Human Resources Office
by telephone (236-4747) by Friday, February 9, 2001,
if you wish to participate. You will be noted by letter prior to the exam with the rest of the
exam details. This test will generate a new eligibility list for future promotions within the
Department. All previous eligibility lists for promotion will no longer be valid.
Per the testing company source, the
following information was provided as materials that can be
obtained to study for the test:
Practices. 1995 3rd edition
--available from: ICMA Professional
777 N Capitol NE #500
Washington DC 20002
2. For the Record, Report
Writing in Law Enforcement, 4th edition by Karen Hess and Henry
--available from: Innovative Systems
9001 Poplar Bridge Road
Bloomington, MN 55437
There were 35 employees of the Department who took the test on February 22, 2001.
Christie received the highest score (78.7) on the exam and Peters scored 78.1, scoring
day after the exam results were posted, Sheriff Brooks called Peters and offered him the job
Corporal in the Jail. Peters declined to take the promotion. (At this time, there was no
opening available.) After Peters declined the Corporal opening, a Sergeant opening became
and the Sheriff offered this opportunity to Todd Christie, the officer who had tested first on
February 22, 2001 exam. Christie took that promotion. At the time the exam was given on
22, 2001, both Christie and Peters had five or more years of service in the Department and
one year experience in the Division in which the vacancies existed.
On February 12, 2001, Mark Habeck was supposed to receive a letter inviting him to
the Corporal/Sergeant exam on February 22, 2001. 2/ However, Habeck never received
On February 22, 2001, when Habeck arrived at work, his co-workers were discussing having
the 9:00 a.m. exam for Corporal/Sergeant that day. Habeck then spoke to Chief
regarding why he (Habeck) had not been invited to take the exam. Goggins explained that
did not have the years of service required by Appendix B of the 1998-2000 labor
agreement to take
the exam. On February 23, 2001, Habeck received a letter confirming his lack of eligibility
the promotional Corporal/Sergeant test "because you don't meet the minimum qualifications
out in the collective bargaining agreement."
2/ Habeck had been hired as an officer in the
Jail on January 16, 1997, where he was employed until
September 8, 1998, when he transferred into a patrol officer position.
Thereafter, Habeck approached Union President Tim Schuster and then Union Vice
Ken Daniels. Habeck explained that he believed that the language of Appendix B
allowed him to take the examination for Corporal. Habeck and these Union representatives
to Chief Deputy Goggins and discussed the matter. After these discussions occurred, the
agreed with the interpretation of the labor agreement put forth by Habeck: that he only
have two years of service in the Department and one year of service in the Division in which
vacancy existed in order to be eligible to take the Corporal examination.
At this time, no one anticipated that Habeck would be considered during the
new eligibility list for the position of Sergeant, as he did not possess the time in the
the time in the Division necessary to be promoted to a Sergeant position. On Habeck's
Association argued that the Sheriff should allow Habeck to take the promotional exam for
and be placed on the eligibility list good for the two-year period then in force. The Sheriff
position that anyone who was in the same position as Habeck should also be allowed to take
a make-up exam.
Therefore, on March 20, 2001, Sheriff Brooks sent Union President Schuster the
letter regarding who should properly take a second exam:
. . .
I received your letter dated March 14,
2001. I appreciate the WCSPPA Board of Directors input
into the issues surrounding the recent Corporal/Sergeant Promotional Exam. The dilemma
that I have
at this point is ensuring fairness to all employees of the Winnebago County Sheriffs Office.
we agree that
the wording could be interpreted in a couple of ways, I believe it
is also reasonable to expect that
other members of your association may have read the contract, and arrived at the same
as management. Therefore, the question is how do I deal fairly with those individuals who
incorrectly interpreted the contract? Which brings me to the question of, "Who should be
to take the test?" "Do I only allow those individuals who read the contract correctly and
forward, and in effect, disadvantaged [sic] those individuals who didn't?" or "In the name of
offer it to all those individuals, that when the contract is correctly interpreted, would have
eligible to take the test?"
Now that the contract has been correctly
interpreted, I believe it is my responsibility to make sure
that all members of the Winnebago County Sheriff s Office, not just one, receive equal and
treatment. Therefore, it is my intention to allow anybody who was eligible to take the test in
February, and did not sign up to take the test, the opportunity to take a makeup test that will
offered sometime in April of 2001.
. . .
On May 10, 2001, Officers Habeck, Vendola-Messer and Cianciolo received letters
them to test on June 14, 2001, at 9:00 a.m. "for both Sergeant and Corporal positions." The
indicated that "as a result of the recent promotional test situation with the Union and
we will be re-conducting for a select few people that didn't get the opportunity to test in
of this year." Habeck, Vendola-Messer and Cianciolo took the exam on June 14, 2001. 3/
Vendola-Messer and Habeck received scores of 78.7 and Cianciolo received a score of 73.5
on the June 14th
promotional exam. This resulted in a three-way tie for highest score, between
Habeck and Christie, while Peters score remained the second highest score. At the time of
Habeck had four years and five months of service to the department (dating from his date of
June 14, 2001).
3/ The exam given to these three officers was
the identical exam to the one given on February 22, 2001.
Sheriff Brooks stated herein that even if Peters had been the highest scoring employee
examination, he (Brooks) would not have offered Peters the Jail Sergeant position because of
attitude over the last several years -- comments Peters made to the public about his work
implying that he is on the graveyard shift because he wanted to do as little work as possible,
comments Peters has made to Lieutenant Matz regarding the way he
would supervise employees were he promoted. Brooks also pointed out that Peters has
"numerous counseling sessions" and has been disciplined on at least two occasions. 4/
that Peters is not a leader, cannot supervise and would not have been a good example to
working under him; that Peters has not displayed the leadership qualities necessary for a
position. (Tr. 126). In addition, the Sheriff noted that in 2000, an arbitrator issued an
that Peters had misused sick leave in 1999. 5/
4/ The County entered the written
memorialization of an oral reprimand dated November 10, 1999, issued to
Peters regarding his failure to turn in reports by the end of his shift. Another reprimand was
issued to Peters but
was apparently withdrawn regarding in Peters' alleged failure to wash his squad car
regularly. This was the only
record evidence of Peters' disciplinary record.
5/ Winnebago County
(Sheriff's Department), Case 324, No. 58537, MA-10983 (Bielarczyk,
On cross-examination, the Sheriff admitted that he has not helped Peters with
to improve his work, work ethic or attitude and he has not offered Peters any training to get
a promotion track again. Brooks stated herein that although he offered Peters the Corporal
in the Jail immediately after the February 22, 2001 exam, he now feels this was a mistake;
continued bad attitude and comments to Lieutenant Matz and Captain Tedlie and comments to
friends" bring into question Peters' work ethic. As the Sergeant position is a much less
job, Brooks felt Peters would not be capable of performing it. (Tr. 134).
At the time of his promotion to Sergeant in the Jail Division in August, 2002,
years and seven months service in the Department, just under four years of service in the
Division and one year and eight months service in the Jail Division. The Sheriff stated that
he felt that
Habeck was the best candidate for the Jail Sergeant position and one of the two highest
scores on the
exam and this is the reason that he promoted Habeck.
It is undisputed that at the time they took the test, Habeck, Vendola-Messer and
did not have five years of service in the Sheriff's Department. It is also undisputed that at
they took the promotional exam in February, 2001, both Todd Christie and Roger Peters had
than five years service in the Sheriff's Department and more than one year experience in the
where the openings existed.
The following is a list of employees who received the top score on the
exam and were then promoted by Sheriff Brooks to the positions listed next to their names:
John Matz Sergeant
Trisha Liethen Sergeant
Todd Christopherson Sergeant
Todd Christie Sergeant
Mark Habeck Sergeant
Dennis Zarling Corporal
Tracy Handy Corporal
Kristen Lemke - Corporal
Lyle Clayton Corporal
Steven Krueger Jr. - Corporal
On August 5, 2002, Peters filed the instant grievance, arguing that Habeck,
and Cianciolo were wrongly allowed to take a promotional exam in June, 2001; that Habeck
promoted to Sergeant of Patrol on August 5, 2002, in violation of Appendix B of the labor
as he did not have five years of service in the Department at the time he took the
examination on June
Peters sought an award ordering the County to cease and desist from violating the
the labor agreement; that he (Peters) be promoted effective August 5, 2002, to the rank of
Sergeant; and that Habeck be removed from that position. In its September 4, 2002 answer,
County stated as follows:
. . . In the grievance, Mr. Peters contends that Officer Habeck
was ineligible to write the
promotional examination for rank of Sergeant at the time that he wrote it.
The promotional examination for the ranks
of Corporal and Sergeant are the same
examination. At the time that Officer Habeck wrote the examination, he was eligible to
examination for the position of Corporal and attained one of the three highest grades
either rank. He subsequently met the necessary experience requirements for the ranks of
Sergeant and Corporal and was thereafter appointed to the rank of Sergeant.
The Sheriff's Department advised me that
Officer Habeck, along with two other officers, was
tested subsequent to the formal testing session in response to an Association request that he
because he was originally improperly disqualified from testing by the Sheriffs Department
the Sergeant experience criteria. All three did, however, meet the Corporal experience
Based upon the test results, the ranking of
test scores at the time of appointment, and the fact
that several candidates met the experience requirement for the rank of Sergeant at the time of
appointment, Mr. Habeck was found to be the best qualified of the eligible candidates.
POSITIONS OF THE PARTIES
The Association urged that the clear language of Appendix B states specifically all
requirements for candidates to be eligible for promotion. In this regard, the Association
Appendix B states that all candidates must have a minimum length of service for the
to which they wish to be promoted "at the time of the exam" and that in addition to the
service requirement, Appendix B requires that "actual promotion shall be contingent upon"
candidate meeting or exceeding the minimum time-in-grade requirements listed therein. In
the Association noted that the promotional testing notice repeated both the length of service
time-in-grade requirement as stated in the collective bargaining agreement at Appendix B.
Furthermore in prior promotional exams, the language of the contract had been applied by
The Association argued that the promotional procedure contained in Appendix B was
intended to produce separate eligibility lists for each rank. Even if one were to find that
only one list
was intended by the parties, the Association asserted that it is clear that the parties agreed to
candidates as being listed separately for promotional purposes to the separate ranks.
the Association proposed language for the 2001-03 agreement which, although it was not
by the parties, showed the parties' intent and the change would have clarified Appendix B
clear that the promotional procedures should work as the Association claims herein.
Furthermore, the Association noted that H.R. Specialist Cori Post admitted that she
promotional testing notice language directly from the collective bargaining agreement and
that it was
her belief that the Sheriff's interpretation of Appendix B reached prior to Habeck's
violated the language of the labor agreement. In addition, Post stated herein that she
separate lists of the top three scoring candidates for the Sheriff to consider for each
opportunity from the single eligibility list generated by the testing.
The Association asserted that the Grievant met all criteria at the time of his
the Sergeant position but that Habeck did not meet all criteria at the time of his examination
consideration for a Sergeant position. In this regard, the Association noted that Habeck
at the time he took the June examination, he thought he was only eligible for the Corporal
exam/promotion and that he had only four years five months in the Department at the time
The Association urged that the parties' reasons and/or intent for separating the length
service and time-in-grade requirements are irrelevant to this case, making its reliance on the
straight-forward language of the agreement appropriate. In addition, the Association noted
that the 2001-03
labor agreement does not alter the requirement that length of service be met at the time of
examination by a candidate for a promotion to one of the ranks listed therein.
The Association noted that the Sheriff has traditionally selected employees for
from the top of the eligibility list moving down for each respective rank, a fact confirmed by
Sheriff herein. In this regard, the Association pointed out that the last six Corporal
the last five Sergeant promotions have been given to the employee receiving the highest score
examination. Therefore, the Association urged that Peters should have been promoted to
rather than Habeck.
The Association observed that the Sheriff admitted herein that he has no intention of
promoting the Grievant. In this regard, the Association noted that the Sheriff stated that
been disciplined previously and this was part of the reason why Peters was not promoted.
the Association pointed out that other employees have been promoted who were disciplined
serious offenses than Peters. In addition, the Association urged that the Sheriff admitted
there were no disciplinary notices in Peters' personnel file before he filed his sex
Therefore, the Association asserted that the County has discriminated against Roger
by failing to promote him while promoting a less senior employee, Mark Habeck, to the
Sergeant position. The Association requested a cease and desist order, that Peters be
Sergeant effective August 5, 2002, that Peters be made whole from August 5, 2002, forward
he be credited with time-in-grade as a Sergeant from August 5, 2002.
The County argued that it did not violate the labor agreement by promoting Mark
Sergeant of Patrol. The County urged that the issue before the Arbitrator is one of contract
interpretation only and that there is no dispute regarding many of the facts in this case.
County noted that the following facts were not disputed between the parties:
1. Only one examination has been given for both the
Sergeant positions for
2. Test results are listed together for all ranks, from the highest to
the lowest scores on
3. The Sheriff is given the top three test scores for each
4. The Sheriff can select from any one of the top three scoring
employees for the
5. The results of each test are good for two years; and
6. The job duties for Corporal and Sergeant are very similar.
The County argued that Mark Habeck met all of the requirements for promotion to
of Patrol at the time of his promotion. The County noted that Habeck had the highest score
the best candidate for the Sergeant position. The County urged that it would serve no useful
to keep someone like Habeck from being promoted because he did not have the necessary
service at the time of his examination.
Even if one assumes that Habeck was wrongly promoted, the County urged that this
mean that Peters must be promoted to Sergeant. Here, the contract says that the Sheriff can
from among the top three scorers on the exam and by past practice the Sheriff has not always
the highest scoring individual. Peters' past discipline swayed the Sheriff against him. As no
was presented that the Sheriff acted arbitrarily or capriciously in refusing to select Peters,
should not receive the promotion pursuant to this Award.
The grievance should be denied. However, if the Arbitrator rules in favor of the
Award should state that the Sheriff has discretion to decide who to promote, pursuant to the
language of the agreement. If the Arbitrator determines that Peters should be placed in the
position, back pay should be limited to the difference between the Corporal pay (which
Peters refused prior to the promotion for Sergeant becoming open) and Sergeant's pay.
The first question that must be answered in this case is how best to interpret the
language of Appendix B. In my view, Appendix B unambiguously provides for a two-step
First, officers must meet or exceed a length of service requirement before they are eligible to
examination for promotion to a particular rank. Second, in order to actually be promoted,
candidate who has already met the length of service requirement for a particular rank, must
exceed the time-in-grade requirement listed. The minimum length of service requirements, 2
in the Jail Division or 3.5 years in the Patrol Division, must be achieved before a candidate
the "Corporal Exam" and 5 years of service is necessary in the Department before a
write the "Sergeant Exam." The above length of service requirements must be met by each
on the day of the examination. Under the clear language of paragraph 2 of Appendix B, this
length of service requirement must be met before the next paragraph (paragraph 3) of
comes into play.
Paragraph 3 of Appendix B clearly states that "actual promotion shall be contingent
candidate's meeting or exceeding the . . . minimum time-in-grade for the respective ranks. .
The time-in-grade requirement for a Corporal promotion is 1 year experience in the Division
vacancy; for a Sergeant promotion it is 1 year experience in the Division of the vacancy. In
it is clear that the length of service requirement must be met at the time the exam is taken,
time-in-grade requirement must be met at the time the candidate is actually considered for a
promotion to an open position.
The County has argued that it would serve no useful purpose to deny candidates
because they lack the necessary length of service at the time they took their examinations.
argument must fail. The parties agreed to the clear language of Appendix B which
before officers could be eligible to test, they have to meet the applicable length of service
for the rank listed. How or why the parties arrived at this agreement is irrelevant. The
service requirement must be met before a candidate may take the "Corporal Exam" or the
The Association has argued that Appendix B requires the Department to separate
promotions into positions in each of the respective ranks. Although Appendix B refers to
competitive written examination for named ranks," and to "the competitive exams for
nowhere in the language of Appendix B does it state that the County must give separate
each named rank. Rather, Appendix B merely states that "this written exam shall be
the position." This language allows the County to give the same examination for two or
ranks if the same exam could be considered "appropriate" for both ranks. In fact, the record
case shows that the County has given the same examination for corporal and sergeant
many years in the past and that the Association has never grieved this fact.
The Association has also argued that Appendix B requires the County to maintain
eligibility lists for promotions to each of the names ranks. I disagree. Appendix B states
result (of the exam) (s) shall be posted by social security number. . . ." This list of results
essentially becomes the eligibility list valid for up to two years. Thus, there is no contractual
requiring the County to make and maintain separate seniority lists for the different ranks.
the procedural language of paragraphs 2 and 3 of Appendix B clearly requires that the
promotion be treated separately for consideration to the separate named rank promotions. 6/
6/ The fact that the Association proposed to
amend the language of Appendix B for the 2001-03 contract does
not, in my view, have any relevance to this case, as the parties did not agreed upon any
Once a vacancy occurs, Appendix B makes clear that the Sheriff is to be given a list
names of the top three candidates for the vacancy. Ms. Post confirmed it has been her
bring a list of the top three scoring candidates for each open position to the Sheriff for his
consideration. Appendix B also clearly states that the Sheriff has the right to select any one
top three listed candidates for promotion into the vacancy. Although Sheriff Brooks has
made it clear
during his nine-year tenure that it would be his policy and/or intention to select the highest
candidate for each opening, Brooks has deviated from this policy/intention on three
has selected one of the other two lower scoring candidates due to the top scorer's disciplinary
I note that the Association did not grieve these policy deviations or otherwise object to them.
As the language of Appendix B grants the Sheriff the right to select from the among
three candidates for each vacancy, I do not believe the record evidence regarding Brooks'
intentions/policy would foreclose him from using his Appendix B discretion as he has on
occasions, to promote a person who did not score the highest, so long as the one promoted
meets the length of service and time-in-grade requirements of Appendix B and is one of the
However, the fact that Mark Habeck was not eligible to take the Sergeant's exam in
2002, and therefore was not eligible to be considered for promotion to Sergeant in August,
does not mean that the Grievant should automatically receive a promotion to the Sergeant of
position. In this regard, it is unclear from this record exactly what the list of top three
would look like if those who did not have five or more years of service in the Department on
they took their Sergeant's exam were removed from the list.
This record contains evidence regarding the Sheriff's attitude toward Peters and
disciplinary record. In my view, this evidence is insufficient as proffered in this case to
prove that the
Sheriff acted arbitrarily and capriciously in failing and refusing to promote Peters. On this
note that it was at the Association's request that Habeck be allowed to take the
test. Although there is no specific evidence regarding the terms of the agreement reached
the Sheriff and the Association, it is clear that Habeck and the Association believed that
would only be eligible to take the Corporal exam for later consideration for a promotion to
due to Habeck's length of service at the time he took the examination in June, 2001. It is
apparent from this case that the Sheriff reached a different conclusion through the process of
Habeck's grievance because he promoted Habeck in violation of the labor agreement. In
it is undisputed that the Association has never brought a grievance regarding the proper
of Appendix B before an arbitrator.
Based upon this record and the clear language of Appendix B, it would be premature
inappropriate to order the Sheriff to select someone in particular and place them in the
position, as Sheriff Brooks did not have a clear ruling regarding the proper interpretation of
B when he passed over Peters. 7/ The Sheriff has a clear right under the contract to select
the top three Sergeant candidates and I issue the following
7/ The evidence offered by the Union herein
regarding Peters' disciplinary record, the 1999 Arbitration
Award, the Sheriff's statements herein concerning Peters' attitude, etc., may become relevant
Sheriff's selection of a new candidate for the Sergeant on Patrol position pursuant to this
Award, if the Sheriff fails
to select Peters. But this evidence is not relevant in this case.
The County violated the collective bargaining agreement when it promoted Mark
the rank of Sergeant. Therefore, the County is ordered to remove Habeck from the Sergeant
and to create a new list of the top three scoring candidates who had the required length of
the day of their examination to be eligible to test for a Sergeant's position. This new list
be submitted to the Sheriff for his consideration. The Sheriff is ordered to select one of the
scoring candidates and place him/her in the Sergeant of Patrol position and if Peters is
County shall place Peters in the position with full backpay and benefits from August 5, 2002,
8/ The County argued that if Peters were the
chosen candidate he should receive the difference between
Corporal pay and Sergeant's pay because Peters declined the Corporal promotion on
February 23, 2001. The fact
that Peters declined the Corporal promotion (which he had every right to do) is not relevant
to this grievance and
cannot form a basis for mitigation of any backpay that may be due him. I will retain
jurisdiction of the remedy only
in this case in order to assist the parties in implementing the Award.
Dated in Oshkosh, Wisconsin, this 25th day of June, 2003.
Sharon A. Gallagher, Arbitrator