Under the Employee Benefit Handbook, grievances are controversies between the Employer and any Interested Stakeholder. As part of the Employee Benefit Handbook’s grievance procedure, the Department of Administration provides a dispute resolution process, known as a “Step 3” proceeding. If the Step 3 proceeding does not resolve the dispute, the matter may be referred to an independent hearing officer who will conduct a proceeding of their own.
The Step 3 Decisions and Independent Hearing Officer Decisions listed below stem from their respective proceedings and concern the interpretation or application of the Employee Benefit Handbook.
Badger Prairie is currently experiencing a shortage in nursing staff. Previously, after proceeding with the vacation selection process, four staff were guaranteed days off on each week day and three on each weekend day. If a person canceled their vacation request, Badger Prairie would proceed to the next person to receive a guaranteed day off. Due to the staffing shortage, Badger Prairie decided it could no longer automatically award an additional day off to a different staff person if a staff person cancels their vacation day.
The Employee Groups filed a grievance arguing that the change was implemented without notice and that these changes are prevented by the past practice provision of the employee benefit handbook.
Greg Brockmeyer denied the grievance pointing out that the Employee Groups were consulted multiple times and Badger Prairie management even modified their proposal in light of the feedback received. Further, the decision held that the Employee Benefit Handbook does not prevent modifications to the process for how vacations are selected. Given the staffing crisis, Badger Prairie needs to be able to implement reasonable rules in order to make the facility function.
ESS workers in the Department of Human Services. typically earn overtime during the months of December, January, and February. The schedule was modified so that staff were working staggered schedules, with some staff ending at 5:00 pm and some staff ending their schedule sooner. In December, because staff were feeling burnt out and staff have protected time away from work, the Department announced that there would a 2.5 hour cap on the amount of overtime that could be scheduled, along with a 7:00 pm cut off. AFSCME filed a greivance claiming that this harmed employees to earn an equal amount of overtime.
Greg Brockmeyer denied the grievance. The need to have employees work overtime is based upon a myriad of factors related to the business needs of the department. In order to address these needs, management has the right to set parameters on how much overtime the department should authorize. Management’s authority to do so has not been abridged by the Employee Benefit Handbook. The assigning of overtime in this case cannot be characterized as an existing benefit.
Summary
An employee requested to use the 2021 Supplemental Emergency COVID-19 Leave for an absence. According to Employee, she received a “booster” COVID-19 vaccination and following the vaccination, she had COVID-19 symptoms on November 2, 2021 and wished to use the 2021 COVID Supplemental Emergency COVID-19 Leave. She was informed that she could not use her leave to cover the absence because the 2021 Supplemental Emergency COVID-19 Leave did not authorize the use. According to Employee, the denial of her request was in error because the 2021 COVID Emergency Leave permitted its use whenever an employee was absent because they have “a COVID-19 diagnosis, is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or the employee has been exposed to COVID-19 and is seeking a COVID-19 test." Furthermore, Employee identifies that on February 12, 2021, her supervisor relayed an interpretation from the Department of Administration that said that the use of the leave is permitted when there is a reaction the vaccine. Employee asserts that the Existing Benefits Clause of the EBH requires that DOA’s interpretation remain in place. Read the full grievance here.
Decision
The Grievance was denied. Although lengthy, the history behind the issuance of the various temporary exceptions reveals one incontrovertible fact: the Supplemental Emergency COVID-19 Leave was a new and separate benefit from the 2021 COVID-19 Emergency Leave. The department’s intention to prohibit the use of Supplemental COVID-19 Emergency Leave for vaccines was made clear. Put simply, there was never any ambiguity as to whether the Supplemental COVID-19 Emergency Leave would apply when receiving or recovering from a vaccine - it would not. Read the full decision here.
Summary
The County maintains an Administrative Practice Manual that applies to all employees covered by its civil service system. This document included the provision that "Employee Group Representatives (EGRs) may not use the County email system to conduct the business of their association. EGRs may not send mass mailings to members, including using distribution lists, among other activities." Employee Groups filed a grievance over this provision. This Grievance was denied by the Department of Administration and was appealed to an Impartial Hearing Officer.
Decision
The Impartial Hearing Officer decided that a restriction of the Employee Group Representative's rights to send mass emails violated the Employee Benefit Handbook and that the County should restore the previous mass email policy. Read the full decision here.
Summary
From Dane County Ordinances to Paid Parental Leave and Disability programs as well as the Employee Benefit Handbook and the Administrative Practices Manual, there are many topics where Employees need guidance on what is best for them. For this reason, the Department of Administration reclassified a position in the Department of Human Services that was performing those duties and retitled the position to Employee Advocate Manager.
Employee Group 1871 filed a grievance that this position should be classified in the professionals employee group. Click here for a copy of the complaint.
Decision
Greg Brockmeyer, Director of the Department of Administration, decided that the Employee Group Representative (“EGR”) does not have the ability to challenge the creation and placement of a position in the Management Class. Further, since this position develops and implements management policies, it is appropriately placed in the Manager Employee Group. Click here for a copy of the decision.
Summary
As a part of planning to reopen county buildings and facilities, it may be necessary for staff to continue to work from home. Departments were asked to establish telecommuting agreements with their employees who will be telecommuting. Employee Relations developed a sample telecommuting agreement for all Departments to use.
Employee Group Representatives filed a grievance that Telecommuting Agreements alter the terms and conditions of employment. Click here to view a copy of the complaint.
Decision
Greg Brockmeyer denied the grievance for three major reasons. First, non-performance can and does lead to discipline in some cases. The Telecommuting Agreement does not alter either the current process for grieving disciplinary actions or the ability to challenge such decisions when they occur. Second, the Telecommuting Agreement does not prohibit EGR activities as long as they are approved and documented in accordance with the EBH and the APM. Third, the Telecommuting Agreement does not end the ability of ADRC employees to telecommute and the Telecommuting agreement allows for Departments to add additional terms, if necessary. The Department of Human Services is instructed to work with EG 1871 to incorporate any necessary terms into the agreement. Read the decision here
Summary
In 2017, Public Health Madison & Dane County issued a requirement for all public health employees to receive a seasonal influenza vaccination. Employee Group Representatives filed a grievance over this requirement. A decision on that grievance was put on hold and Public Health permitted religious exemptions to the vaccination requirement. In December 2019 Employee Group Representatives filed an additional grievance, requesting that the religious exemption be expanded to included strongly held personal convictions of a secular nature. Click here to read the original complaint. Click here to read the most recent complaint.
Decision
Greg Brockmeyer, Director of the Department of Administration, denied the grievance. The policy requiring a seasonal influenza vaccination is not contained in the Employee Benefit Handbook and it does not directly conflict with any provision. Concerns over discrimination were forwarded to the Office for Equity and Inclusion and Corporation Counsel for an investigation. Click here to read the decision.
Summary
AFSCME represented Employee Groups filed a grievance based on how employees should be compensated for employee group activity. Click here for a copy of the complaint.
Decision
Greg Brockmeyer denied the grievance because state law and Dane County ordinances require a view-point neutral position on employee membership in AFSCME-affliated employee group associations. The County must treat comparable categories of employees uniformly. Employees that choose to join an employee group and employees that choose not to join an employee group must be treated equally. Click here for a copy of the decision.
Summary
A provision in Employee Group 720’s handbook states that the County and the Employee group shall have representatives discuss staffing and scheduling issues at the Dane County Job Center on a quarterly basis. Under Act 10, the County is required to treat employees uniformly – regardless as to an employee’s affiliation with an Employee Group. Employee Group 720 filed a grievance stating that equal representation means that the Employee Group is entitled to additional representation at these quarterly meetings. Read a copy of the complaint.
Decision
During the Second Step, Dane County Human Services Director Shawn Tessmann directed EAWS to reserve the first two agenda topics at all-staff quarterly meeting to be reserved for addressing scheduling and staffing concerns. Since these meetings “are all staff” there would be an equal number of labor and management participants and would include employees included in employee groups and those who are not included in the Employee Group.
Greg Brockmeyer, Director of Administration, decided that the format of the meetings specified by director Tessmann conforms to both the Employee Benefit Handbook requirement and the uniformity requirement. Read a copy of the decision.
Summary
The Henry Vilas Zoo has recently added a number of new staff, necessitating a new process for vacation requests for 2021. Employee Group 720 filed a grievance that the change in the process constituted a change in benefits that violates the Employee Benefit Handbook. Read a copy of the decision.
Decision
Greg Brockmeyer, Director of Administration, denied the grievance. The Employee Benefit Handbook states, “Employees shall be encouraged to use vacation in sustained periods of one (1) or more weeks… In the event that an employee shall wish to use vacation credit in small increments, this provision shall be a bar to such use. Such smaller increments… shall be allowed with department head approval where such use does not interfere with the normal use of vacation… by other employees or adversely affect departmental operation.”
The Zoo’s policy conforms to the Employee Benefit Handbook. The policy encourages vacation use for blocks of at least a week, while still honor seniority in these requests. In the first round, employees can use their seniority to select up to four individual days and there are no restrictions on requests for more than one day. After that round, employees can select as many individual days on a first come, first serve basis. Further, the Zoo presented information that demonstrated that policy was necessary by the increased difficult of other employees being able to use their own vacation credits, which is specifically addressed in the Employee Benefit Handbook. Read a copy of the decision.
Summary
Dane County ESS is a part of the Capital Consortium for the administration of ESS benefits. A Dane County ESS worker accessed the SharePoint calendar inappropriately, causing an issue with a partner county. Human Service management held conversations with the partner Counties and it was revealed that Dane County was the only county permitting employees to access this SharePoint calendar. The partner counties were concerned that this could lead to a breach of confidentially or violation of FMLA rules. Human Services requested an opinion from Corporation Counsel and Corporation Counsel recommended that employees not be allowed access to the SharePoint calendar for the same reasons.
Human Services then ended staff access to SharePoint. Leads, supervisors and managers who are responsible for scheduling coverage, would retain access. Employees losing access would still be able to obtain necessary information from other sources.
Employee Group 720 filed a grievance that because SharePoint was related to scheduling it is a benefit covered under the Employee Benefit Handbook and that changes should have to proceed through the Meet and Confer process. Read a copy of the complaint.
Decision
Greg Brockmeyer denied the grievance. Management has the right to plan, direct and control the operation of the work force and the use of a software program is not an existing benefit. Further, the ability of employees to see other employees work schedules online is not an existing benefit. Supervisors and Managers use SharePoint to determine how many staff would be allowed off consortium-wide at pre-determined percentages of staff. Read a copy of the decision. Read a copy of the Decision.
Summary
Wisconsin law requires the County to treat comparable categories of employees uniformly and to maintain a viewpoint-neutral position on Employee Group membership. The Department of Administration conducted a review of the County's email distribution lists and found the County was providing email distribution lists exclusively for Employee Group Representatives to communicate with only dues paying members in the Employee Group. Because access to these email lists were not uniform across all categories of employees and they did not maintain a viewpoint-neutral position on Employee Group membership, Information Management deleted them.
Employee Group 1871 filed a grievance that these email lists were a reasonable use of the county's email system. Click here for a copy of Employee Group 1871's complaint.
Decision
Greg Brockmeyer, Director of the Department of Administration, decided that allowing Employee Groups to use the county email system to communicate with only those employees in their groups who pay dues conflicts with the County's obligation to treat comparable categories of employees uniformly and to maintain a viewpoint-neutral position on Employee Group membership. Click here for a copy of the decision.
In 2015, a dispute arose between Dane County and the Dane County Employee Associations. In the spirit of cooperation, the parties presented 15 questions to retired Judge Maryann Sumi and agreed to abide by her opinion. The dispute arose out of the fundamental question of how Dane County should interact with the Associations in light of Act 10. Click here for a copy of the decision.
In December 2019, the Department of Administration asked Corporation Counsel for a legal opinion on how to implement Judge Sumi's opinion. Key questions were: What are permitted activities during work hours that take employees away from their job assignment? What are permitted activities by Employee Group Representatives (“EGRs”) during work hours? And how does the uniformity standard govern the use of county resources?
Corporation Counsel held that in order to ensure uniformity, work-related activities must be interpreted to be limited to those an employee does to fulfill their job description and to participate in civil service activities. During work time, EGRs may engage in only those activities allowed for all employees. Work-related activities do not include Employee Group Association activities that are not also civil service activities because such time away from work duties is not available to all employees. Click here for the Corporation Counsel Opinion.
