STATE OF WISCONSIN
BEFORE THE WISCONSIN EMPLOYMENT RELATIONS
NORTHLAND PINES EDUCATION ASSOCIATION,
NORTHLAND PINES SCHOOL DISTRICT,
Decision No. 30267-A
Mr. Gene Degner, Executive Director, Northern Tier UniServ
Central, 1901 River Street, P.O. Box 1400, Rhinelander, Wisconsin 54501, on behalf of
Northland Pines Education Association.
Troff, Petzke & Ammeson, Attorneys at Law, by Mr. Gregory B.
Ladewski, 811 Ship Street, P.O. Box 67, St. Joseph, Michigan, on behalf of the
Northland Pines School District.
FINDINGS OF FACT, CONCLUSION OF LAW
On September 13, 2001, Northland Pines Education Association, hereinafter
filed a complaint with the Wisconsin Employment Relations Commission wherein it alleged
the Northland Pines School District, hereinafter District, had committed prohibited practices
within the meaning of Secs. 111.70(3)(a)1 and 4 of the Municipal Employment Relations Act
by issuing a written reprimand to an individual employee without just cause in violation of
terms of the parties collective bargaining agreement. The Commission appointed the
undersigned, David E. Shaw, of the Commission s staff, as Examiner to make and issue
Findings of Fact, Conclusions of Law and Order in the matter.
Dec. No. 30267-A
The parties entered into discussions in an attempt to resolve the matter, but were
unsuccessful. The Association and District agreed to waive the filing of an answer. Hearing
before the undersigned on March 12, 2002, in Eagle River, Wisconsin, and a stenographic
was made of the hearing. The parties completed the submission of post-hearing briefs by
To maximize the ability of the parties we serve to utilize the Internet
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.
Having considered the evidence and the arguments of the
parties, the Examiner now makes
and issues the following Findings of Fact, Conclusion of Law and Order.
FINDINGS OF FACT
1. Northland Pines Education Association, hereinafter the "Association", is a
organization having its principal offices located in c/o Northern Tier UniServ-Central, at
Street, Rhinelander, Wisconsin 54501-1400. At all times material herein, Gene Degner has
Executive Director of the Northern Tier UniServ and Steven Glandt has been the
President. At all times material herein, the Association has been the exclusive collective
representative for a bargaining unit consisting of "all regularly employed classroom teachers,
librarians, and guidance counselors, which shall include teachers hired to replace teachers
Northland Pines system permanently, but which shall not include substitute teachers and shall
all managerial and supervisory employees, including the position of Athletic
Director/Attendance/Discipline Officer unless such position would include regularly assigned
2. Northland Pines School District, hereinafter referred to as the "District", is a
employer which maintains and operates a public school system in Eagle River, Wisconsin.
principal offices are located at 1780 Pleasure Island Road, Eagle River, Wisconsin 54521.
times material herein, Linda Kunelius has been the District Administrator and has served as
District's agent in that capacity.
3. At all times material herein, Peter Bugni has been employed by the District as
classroom teacher, and is in the bargaining unit set forth above in Finding of Fact 1.
4. At all times material herein, Jo Ann Krusick has been employed by the District
paraprofessional. Krusick's duties include playground supervision, working with teachers
students, and assisting teachers with correcting papers, etc. In addition, for approximately
four or five years, Krusick has filled in for the District Administrator's Secretary when she is
and also assists in that office when they need help.
Dec. No. 30267-A
5. The Association and the District have been parties to a series of collective
agreements covering the wages, hours and conditions of employment of the District's
the bargaining unit set forth in Finding of Fact 1, including a collective bargaining agreement
the period of July 1, 1999 through June 30, 2001. The parties' 1999-2001 Agreement does
include a provision for final and binding arbitration of grievances arising under that
Agreement includes the following provision:
SECTION VI DISCIPLINE, DISCHARGE AND
A. When, in the judgment of the District
Administrator a condition or situation warrants,
the District Administrator may suspend a staff member pending action by the Board.
The final step in any review of such suspension shall decide the status of the teacher's
compensation during such suspension.
B. No teacher shall be
required to appear before the Board or its agents concerning any
matter which could adversely affect the continuation of that teacher in his/her office,
position, employment or the salary or increments pertaining thereto, unless he/she has
been given prior written or verbal notice (at least 24 hours) of the reason for such
meeting or interview and shall be entitled to have a representative of the Association
present to advise him/her and represent him/her during such interview.
C. In the event that the
discipline of a teacher shall have an adverse effect on
continuation of employment, the teacher and Association shall receive written notice
of the reasons and the disciplinary action being taken.
D. No teacher shall be
dismissed, suspended, reduced in rank or compensation or
otherwise disciplined without cause.
E. All rules and regulations governing
employee activities and conduct shall be
interpreted and applied uniformly throughout the district.
6. On June 8, 2001, the District was engaged in an
interest-arbitration hearing with the
District's support staff union being held in the Board's conference room, which also serves
Kunelius' office. Present were the members of the District's Board of Education, Kunelius,
Board's attorney, the arbitrator, Degner and members of the support staff union. The
Superintendent's Secretary works at a desk located just outside of the room next to the door
Dec. No. 30267-A
the room. On that date, Krusick was substituting for the Superintendent's Secretary.
approximately 10:00 a.m., Bugni came in with a document he wished to give to Kunelius.
was standing by the side of her desk, and the door to the conference room was partially
peeked into the room to see if Kunelius was available to talk to, and seeing that she was not,
turned to Krusick and gave her the document and asked her to give it to Kunelius. Bugni
walk away and then turned and said to Krusick, "This is going to really piss her off." Bugni
Having heard Bugni's voice, after the arbitration hearing Kunelius asked Krusick what Bugni
wanted. Krusick gave her the document Bugni had brought and told Kunelius that Bugni had
her the document and told her, "Give this to Linda because it will really piss her off."
told Kunelius that Bugni should not have said that. When Kunelius asked Krusick why she
Krusick responded to the effect that Bugni is a friend and he should not have put her
(Krusick) in that
position, and that it was disrespectful of him.
The document Bugni had given Krusick to give to Kunelius was a military time
table and was related to a disagreement Kunelius had had with Bugni and another teacher the
before as to what time they had checked into a motel while at a conference. The motel
the check-in time in military time and Kunelius disagreed with Bugni's and the other
of what the military time noted on the receipt converted to in regular time. Bugni had
conversion table to show Kunelius that she was wrong and he was right.
A few days later, Kunelius had Bugni and the other teacher come to her office to
matter involving their check-in time, and in the course of the discussion Bugni asked
she had them come in again to discuss the matter. Kunelius then took out the military time
conversion table Bugni had given Krusick and thanked Bugni for giving it to her. Kunelius
asked Bugni if he remembered his conversation with Krusick when he gave her the
told Kunelius he could not remember the conversation verbatim, but that it was to the effect
asked Krusick to give it to Linda (Kunelius) at her earliest convenience and that it was going
her off." Kunelius then asked Bugni if he had said it was going to "tick me off" or "piss me
Bugni then said he recalled that he had said it was going to "piss her off."
7. On June 26, 2001, Kunelius sent Bugni a letter which stated, in relevant part,
Dec. No. 30267-A
Dear Mr. Bugni:
I am writing this letter to you regarding a
comment you made when you brought a document on
Military Time Conversions to the District Office on June 8, 2001. You gave the document
Krusick (substitute secretary for Susie Block) and told her to "give this to
Mrs. Kunelius, it's really
going to piss her off."
While I can appreciate the frustrations you
may feel concerning our discussions on your recent
disciplinary actions, as the District Administrator I expect to be treated with respect and
our professional dealings. Your comment was unprofessional, disrespectful and constituted
insubordination. I am providing you with written notice that such conduct is unacceptable.
be advised that you will be subject to discipline if such conduct continues.
Linda Kunelius /s/
Linda L. Kunelius
cc: Mr. Duane Frey, Principal
A copy of the letter was placed in Bugni's personnel file.
8. The following grievance was filed on behalf of Bugni regarding Kuenlius'
June 26, 2001:
GRIEVANCE FILING FORM
GRIEVANT: Peter Bugni and NPEA
PRESENTED TO: Linda
PRESENTED BY: Northland
Education Association (NPEA)
Dec. No. 30267-A
STEP: 4 DATE OF FILING:
The District Administrator violated the
rights of Peter Bugni by a June 26, 2001, letter of
reprimand. Such letter of reprimand is in violation of Article 6, Discipline, Discharge
paragraph D. The language used by Mr. Bugni was not disrespectful to Ms. Kunelius
as he was not
speaking to Ms. Kuenlius at the time. His use of language that would suggest that Ms.
would be upset with information that he was giving her was certainly correct and she was
she felt the need to reprimand Mr. Bugni for it.
AREAS OF CONTRACT
Article 6, Discipline, Discharge,
That the letter of reprimand be
from Peter Bugni's personnel file and that
Ms. Kunelius apologize for writing such a letter of reprimand.
Thomas J. Drushelka /s/
The grievance was processed through the parties' contractual grievance procedure
culminating in a hearing before the District's Board of Education. By letter of August 6,
Board responded, in relevant part, as follows:
Steve Glandt, President
Northland Pines Education
. . .
Dec. No. 30267-A
RE: Peter Bugni July 9, 2001
Dear Mr. Glandt:
The Northland Pines School District
completed its deliberations following the grievance
hearing of July 30, 2001. The June 26, 2001 letter from Mrs. Kunelius to the Grievant was
under the circumstances, and was not a violation of any provision of the Agreement alleged
grievance. Moreover, the June 26, 2001 letter was not a "letter of reprimand", as alleged in
grievance. The July 9, 2001 grievance is therefore DENIED.
Tom Christensen /s/
Tom Christensen, President
Northland Pines Board of
cc: Mrs. Linda Kunelius, District
Northland Pines School District
Mr. Duane Frey, Principal
Eagle River Elementary
Mr. Peter Bugni
9. Bugni had been issued a written reprimand on May 15, 2001, which stated, in
part, as follows:
TO: Mr. Peter Bugni
FROM: Duane Frey
DATE: May 15, 2001
Dec. No. 30267-A
RE: Sick Leave on April 27,
2001 WRITTEN REPRIMAND
This is a written letter of reprimand that
will be placed in your personnel file concerning your
sick leave request on April 27, 2001.
. . .
The District will also place this letter of reprimand in your
personnel file. We want to make very
clear to you that any further violations of the sick leave provisions, abuse of the sick leave
or other acts of insubordination shall result in suspension and possible termination from
with the District consistent with the personnel policies of the District.
It is unfortunate that we have been
to this position. However, your recent conduct
cannot and will not be tolerated at the District.
If you do have any questions, please do
not hesitate to contact me.
cc: Personnel File
10. On September 13, 2001, the Association filed a complaint of prohibited
the Commission, alleging that the District, by the actions of Kunelius and its Board of
violated the Municipal Employment Relations Act.
11. Kunelius' letter of June 26, 2001 to Bugni does not constitute discipline within
meaning of Article VI, D, of the parties' 1999-2001 Collective Bargaining Agreement.
letter to Bugni and placing a copy of it in his personnel file did not violate the parties'
Based upon the above and foregoing Findings of Fact, the Examiner makes and issues
The Letter of June 26, 2001 from Kunelius to Bugni does not constitute discipline
meaning of Article VI, D, of the parties' 1999-2001 Collective Bargaining Agreement. By
said letter and placing it in Bugni's personnel file, the Northland Pines School District, its
agents, did not violate the parties' 1999-2001 Collective Bargaining Agreement and did not
prohibited practices within the meaning of Secs. 111.70(3)(a)1 and 4, Wis. Stats.
Dec. No. 30267-A
Based upon the above and foregoing Findings of Fact and Conclusion of Law, the
makes and issues the following
The complaint is dismissed.
Dated at Madison, Wisconsin, this 8th day of July, 2002.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
Dec. No. 30267-A
NORTHLAND PINES SCHOOL
CONCLUSION OF LAW AND
The Association has alleged in its complaint that the District, by Kunelius' issuing
the letter of June 26, 2001, and placing a copy of that letter in his personnel file, disciplined
without "just cause" in violation of Article VI of the parties' Agreement. As the parties'
does not contain a provision for final and binding arbitration of grievances, the Association
instant complaint following the Board of Education's denial of the grievance filed on behalf
While the parties waived the filing of an answer by the District, the District
hearing in the matter, denying that Kunelius' letter to Bugni constitutes discipline and
the District has the right to control the environment in its offices.
The Association characterizes what it believes to be the salient facts as follows. The
testimony of Kunelius and Bugni indicate that they had a relationship in which they treated
with respect, although they certainly did not agree on positions and policies and were not
confront each other regarding their differences. Their differences were well known to other
employees, including JoAnn Krusick, Kunelius' Substitute Secretary on the day in question,
had known and worked with Bugni for the last eight years. Setting the stage for the events
occurred on June 8, Kunelius and Bugni had been involved in an argument the day before
which Kunelius repeatedly accused Bugni of being wrong with regard to military time. On
he came to Kunelius' office with information that would prove her wrong. However, when
there, she was not available. Her substitute secretary is not a stranger, but is a colleague
he has worked for the past eight years. Bugni, having a document that will prove his boss
boss that he feels always has to be right, has a certain happiness about being able to prove
and turning to a "friend and colleague", stated: "This will really piss her off." The
that that comment cannot be construed as unexpected or wrong. While Bugni's comment
"slang expression", it simply meant that the document would make Kunelius "angry" or
would "really irritate her." Such comment is not disrespectful. At the most, the use of the
expression "pissed off" could be considered unprofessional. It certainly does not rise to the
"insubordination" which has a well-defined meaning in labor law.
Dec. No. 30267-A
The Union takes the position that while the letter from Kunelius did not state that it
"reprimand" or "discipline" in the heading, the fact that it accuses Bugni of
"insubordination" and was
placed in his personnel file constitutes a reprimand and discipline. The term
a serious infraction of rules occurred between the employer and employee. The Association
Barneveld Education Association, (Arbitrator Kessler, 8/9/95) wherein the arbitrator found
contrary to the employer's assertions, placing a note critical of the employee's conduct in her
personnel file based upon another employee's complaint to the supervisor, without first
employee's response and without further investigation, constituted "discipline" and violated
employee's procedural rights under the contractual just cause provision. According to the
Association, leaving the accusation that Bugni was insubordinate towards the District
in his personnel file would have serious ramifications on his continuous employment with the
To correct the situation, the letter must be removed.
In support of its position, the Association first asserts that Bugni was acting in a
was normal and acceptable. The previous day, he and Kunelius had had a rather contentious
argument over "military time" in which she had repeatedly stated that Bugni was wrong.
evidence and being able to show that one's boss was wrong in a situation where they
claimed to be right would make any employee happy. His expression to the substitute
whom he had worked with for the past eight years that Kunelius would be angry, i.e. "pissed
was understandable, given his perception that she always had to be right. Bugni felt
telling Krusick that it was going to make Kunelius angry, and felt that the comment was
confidence. Kunelius testified that she only asked Krusick what Bugni wanted and why he
and did not ask what he had said. Krusick's offer of what Bugni said to her was made of her
volition, and her perception that she needed to tell Kunelius what he said only supports
conclusion that Kunelius would be angry. Krusick's need to go beyond just giving Kunelius
document and instead telling her what Bugni had said, shows that she either feared Kunelius
she wanted to better herself in Kunelius' eyes. Krusick's testimony that the fact that Bugni
the statement made her uncomfortable shows her fear and lack of respect for Kunelius.
Next, the Association asserts that although Kunelius' letter indicates that Bugni's
directed at the District Administrator, there was in fact no direct communication between the
and therefore, Bugni could not have been disrespectful, unprofessional nor insubordinate to
There was no order, nor command that he refused to carry out, and there was no policy
Kunelius even testified that she did not expect Bugni to change the way he talks or
with people. Thus, he could not have been insubordinate. Further, describing one's
feelings that he thinks someone might have is not being disrespectful to that person. The
"pissed off" in place of "angry", is not a statement of disrespect. There are no policies
use of slang expressions in the District office. Since there are no policies, and it was never
known to Bugni that the use
Dec. No. 30267-A
of slang expressions in the District office is unacceptable, he cannot be accused of
It also appears that the District's office is the only place in the District where the
objects to the use of slang terms. As Kunelius testified, she did not expect Bugni to change
he talked when he was in the lounge or in one-on-one conversations. As to whether the
was unprofessional, one has to stretch their imagination to find that the comment "pissed off"
between colleagues during the summer recess is unprofessional.
The Association also disputes that Bugni's use of the expression to Krusick was
or unprofessional towards her. Krusick testified that while she did not like such language,
never objected to its use at any other time in her relationship with Bugni. As Krusick
she had always ignored it in the past, the Association questions why she raised the issue this
If one agreed that use of slang in a District Administrator's office is unprofessional and that
reasonable people should know that, only then could Bugni's expression to Krusick about
anticipated reaction be considered unprofessional.
The Association asserts that placing a written accusation that one has been
their personnel file constitutes discipline and offers the following definitions of the term:
Webster's New World Dictionary, Second College Edition,
defines "insubordination" as: not
submitting to authority; disobedient.
Black's Law Dictionary, Fifth Edition,
defines "insubordination" as:
State of being
disobedience to constituted authority. Refusal to obey some order
which a superior officer is entitled to give and have obeyed. Term imports a willful or
disregard of the lawful and reasonable instructions of the employer. Porter v. Pepsi-Cola
Co. of Columbia, 247 S.C. 370, 147 S.E.2d 620, 622.
Roberts' Dictionary of Industrial Relations, Fourth Edition,
Harold S. Roberts, defines
A worker's refusal or failure
obey a management directive or to comply with an
established work procedure. Under certain circumstances, use of objectionable language or
behavior toward supervisors may be deemed to be insubordination because it reveals
management's authority. Insubordination is considered a cardinal industrial offense since it
violates management's traditional right and authority to direct the workforce.
Dec. No. 30267-A
Arbitrator Joseph F.
in Kay-Brunner Steel Products (78 LA 363) states that the
proven facts of "a classical case of insubordination" include: (1) the Grievant was given
(2) the Grievant refused to obey the orders, (3) the orders came from the Grievant's
who were known to him, (4) the orders were reasonably related to his job and within the
of the contract, (5) the orders were clear, direct, and understood by the Grievant, (6) the
was forewarned of the possible and probable consequences of his continued actions by
reference to the contractual guidelines. . , and (7) the Grievant was neither insulated nor
from possible disciplinary action by his role as a representative of the employees. .
. . .
Under labor law, arbitral authority, and the above definitions, insubordination is a
infraction. Regardless of the heading on the letter, the fact that an employee has a letter in
personnel file accusing them of insubordination by the highest-ranking officer of the
serious discipline. The matter is made even worse by the fact that the District Administrator
that she chose her words carefully, which indicates that she understood the full context of
insubordination and what it meant.
Article VI, "Discipline, Discharge and Suspension", of the parties' Agreement,
employees against any kind of discipline or reprimand without cause. "Cause" is
"just cause". One of the protections afforded under "just cause" is that an employee must
reasonable knowledge of the rule they are alleged to have violated. Testimony in this case
Bugni did not have knowledge that the use of slang was prohibited in the District office.
Kunelius' testimony that she did not expect Bugni to change his behavior at any other point
shows that there is a mixed interpretation as to the use of slang in the District. The use of
the District office is certainly not something that a reasonable person would understand to be
prohibited, and a cause for discipline. The "cause" standard protects an employee from the
use of terms such as "insubordination."
The Association concludes that it is difficult to determine whether it was the use of
in the Administrator's office, or if it is the relationship that Krusick had with Kunelius that
written discipline to be issued. Bugni's comment under the circumstances certainly cannot be
considered to be disrespectful, unprofessional or insubordinate. While the terms
"disrespectful" are subjective and do not have a clear meaning under labor law, the use of
"insubordination" is of greatest concern because it is a clearly-defined term in labor law and
a very serious infraction. Thus, any reference to "insubordination" in this instance must be
from Bugni's personnel file and the District found to have violated the "cause" standard in
Dec. No. 30267-A
In its reply brief, the Association asserts that the District is attempting to make light
serious allegation against Bugni and attempts by ridicule to persuade the Examiner that the
to being accused of insubordination is a matter unworthy of disagreement. To suggest that
should apologize for having made a simple comment to the Secretary expressing how he felt
Administrator would feel is ridiculous. The District's assertion that because there were no
other first-hand witnesses to testify, the leadership of the Association did not support Bugni,
is completely false
and disregards the fact that this was a comment made by Bugni to the Secretary and no one
The District castigates Bugni as one who uses vulgar language for the sake of
is a particularly narrow view of the acceptability of the use of slang language. If the District
such slang unacceptable, it should post a notice in the Administration building. Bugni did
or call the District Administrator a name, nor in any way defame her, but simply expressed
felt she would feel when she received his document.
There is a question as to how wide open the door was to the room. If the door was
open, as Krusick claimed, why did she not mention seeing the Association's UniServ
(Degner) in the room when she described who was present? The District repeatedly asserts
Krusick was concerned about telling the truth. However, Kunelius did not ask Krusick what
had said; rather, she asked what Bugni had wanted. What he had wanted was for the
give Kunelius the document. The reason that Krusick told Kunelius what Bugni had said was
of Kunelius. Krusick did not object to Bugni's language or expressions. While everyone
this language would not be used in front of students, the conversation only involved Krusick
Bugni, and his comments to her upon leaving were not to be passed on to the Administrator,
only to indicate to Krusick how he felt Kunelius would react.
The District attempts to discount the language used in the letter as being discipline.
wording indicates that the District has accused Bugni of being unprofessional, disrespectful
insubordinate and states that if the conduct continues, he will be "subject to discipline." In
continue towards discipline, one must have committed the behavior in question in the past.
accusations need to be proved by the District before they can be accepted as discipline.
While the District attempts to diminish the import of the wording of the letter by
discipline is only a possible action, this ignores the fact that accusing an employee of
is, in and of itself, discipline. Examiner Jones' prior decision supports this. Examiner Jones
"A written warning can certainly be considered discipline." While he found that the
in that case was not discipline, his decision was not so broad and far-reaching as to say that
time the District does this, it cannot be considered discipline. The District could have
written a letter
that said the use of the term "pissed off" or
Dec. No. 30267-A
other such slang terms in the District office is not appreciated, and to please refrain
from using such
expressions in the future. The District chose not to do that, and chose instead to accuse the
of insubordination, knowing full well the connotation that term has in labor law.
The Association requests that the Examiner find that the letter constitutes a violation
"cause" provision of the parties' Agreement and order the appropriate remedy.
The District proposes that the issues to be considered are: 1) Whether the District
Administrator's letter of June 26, 2001 to Bugni constitutes discipline under Article VI of the
Agreement and, if not, does the just cause standard apply? 2) Whether the District
acted within her prerogative in writing the letter to Bugni, in which she described his
"unprofessional," "disrespectful," and/or "insubordination" and informed him that repeating
conduct in her offices would result in discipline and, if not, what if any, remedy is
The District takes the position that the letter Kunelius sent to Bugni does not
discipline, and that therefore the "just cause" standard in Article VI of the Agreement does
On its face the letter is not discipline. The word "discipline" only appears in the context of
action if the grievant repeats the specific, unacceptable behavior in the District
The letter does not state that a violation would result in "further" discipline, but rather, that
disciplinary process would begin with the first recurrence of the specific misconduct.
perfectly capable of issuing an unambiguous letter of discipline, e.g. the written reprimand
May to Bugni. While Bugni vaguely alleges that the letter is discipline, he cannot say why
beyond the fact that the letter was placed in his personnel file and that he interprets the last
as a "threat". By that definition, any directive or work rule constitutes "discipline" in the
it draws a line which, if crossed, would result in discipline.
The District cites as on point, the decision in Northland Pines School District, Dec.
No. 29978-A (Jones, 5/01), asserting that the examiner in that case rejected a similar
claim by the
Association. Kunelius' letter was not a written warning, nor was it discipline of any sort
the just cause requirement of Article VI, Section D; rather, it was a notice to Bugni that his
was unacceptable and must not be repeated. The letter necessarily must go in Bugni's
as it is a "notice" to him that may well set the stage for future discipline, in the event he
repeat such behavior under similarly inappropriate circumstances. It also goes without
the District Administrator has the prerogative to enforce minimal decorum in her own offices
especially next to an open door to a full-blown arbitration hearing.
Dec. No. 30267-A
The District asserts that Krusick's account of the events should be afforded far
than Bugni's self-interested version. An individual with nothing to gain should be presumed
more candid and credible than a party in the case. Further, Krusick's demeanor and her
and sincere testimony make her vastly more believable than Bugni.
While Kunelius' letter was not discipline, it delivered a message that was
richly deserved. Bugni's utterance was vulgar and unprofessional under the circumstances.
acknowledged that the appropriateness of words may depend on the circumstances in which
uttered or are written, and that "colorful" language should be restricted to private settings
and is not
for use in the classroom, but only when there is no danger of being overheard. By Bugni's
"standard", his vulgar comment on June 8 was inappropriate. While Bugni does not consider
District's offices to be "hallowed ground", they are a public space and the District
home base, and as such, certain minimum rules of decorum must be observed by professional
on the premises. Until now, these rules have been implicit, and are simple matters of
and common sensibility; however, when professional staff who lack such qualities turn the
a locker room, a clear reminder is called for, as was done here. Bugni's denial that the
off" is vulgar, and is only the equivalent of "irritate" or "peeve" and merely "slang", is
contrary to the
definition of the term in any standard dictionary, and any reasonably mature adult
it is not appropriate under the circumstances that were present here.
The District asserts that Bugni's utterance was disrespectful under the circumstances.
makes no bones as to his feelings toward Kunelius. Kunelius displayed remarkable restraint
with Bugni's provocations and attempts to undermine her and has left him alone except to the
that he breaks the rules. The utterance was disrespectful of Krusick and put her in the
having to choose to either buy into the crudity and insolence towards Kunelius or telling her
awkward truth. It was disrespectful of Kunelius as well. Bugni fully expected that she
his "gleeful vulgarity" either first-hand, or through Krusick. He had wanted to deliver the
to Kunelius in an "in your face" manner, but deprived of that opportunity because of the
hearing, he made the comment out loud. He made no effort to whisper or tone down his
probably spoke louder than usual in hopes that it would be heard inside the other room.
outburst was reckless and disrespectful to the District as he was in its main offices, and
the Board were present in the Board Room with the door open.
The District also asserts that while Bugni's utterance was not "insubordination" in the
technical sense of the term, it did have an insubordinate motive, and reflected an
attitude which under the circumstances, cannot be countenanced. A common synonym for
"insubordinate" is "factious", i.e. promoting divisiveness or disunity in an organization.
See, e.g. The
American Heritage Dictionary (1983). As is clear from Kunelius'
Dec. No. 30267-A
testimony, that is precisely the meaning she intended the term to have in her letter to
made his utterance to Krusick with the expectation of a positive, supportive response from
laugh, a wink and certainly quasi-conspiratorial silence. By his own admission, Bugni does
hesitate to express his contempt for Kunelius and given this attitude and his evident lack of
self-awareness, Bugni obviously presumes that everyone else not only shares his views, but
unbridled expression of them. Bugni does not allege that his utterance was spontaneous, but
it was a conscious, deliberately-stated afterthought. It was intended to foster disrespect and
While Krusick may have tolerated his boorishness in other settings and circumstances, she
saw the circumstances here as being different.
The District asserts that there is no excuse or justification for Bugni making his
While fortunately no one overheard the comment except for Krusick, the record indicates that
Bugni nor Krusick could have known that to be the case for sure. It was quiet in the room,
for Bugni, and the door to the Board Room was open far enough that Krusick could see
Kunelius could see Bugni.
While Bugni complains that Krusick did not have to report what he said to Kunelius
have ignored it, Krusick was not willing to lie for him. Bugni cannot expect others to
or overlook his inappropriate behavior. Bugni also blames Kunelius for not simply letting
drop. He also seems to blame his colleagues and supervisors for not complaining sooner
coarse language and attempts to excuse himself on the grounds that he is not the only one
foul language. Finally, he ridicules Krusick for daring to be offended by his language.
most bizarre claim was that his vulgar utterance was made to Krusick "in confidence. . .as a
This allegation has no relevance and in no way mitigates Bugni's culpability.
The District asserts that Bugni's tactics should not be countenanced. While there is a
deal of tension between some elements of the professional staff and the administration and
is a minority view, as not one other member of the Association supported Bugni in this case.
However, a pattern of evidence emerges of a concerted attempt by some elements of the
to undermine the District Administrator and engage in pointless bloodletting, such as this
Examiner should consider "using his bully pulpit to do good, as well as to do justice." This
an attempt to coerce and intimidate the District and to punish any employees who dare to see
District's point of view. For the District to overlook such provocation would only invite an
more outrageous statement under even more inappropriate circumstances. No employer can
its employees to intimidate it into silence, nor abide the conscientious erosion of morale by
employees, however disgruntled.
Dec. No. 30267-A
In its reply brief, the District responds that while the Association initially
discussion between Kunelius and Bugni as a "disagreement about. . . military time", and a
of opinion as to what time military time represented", it subsequently alleges that there was a
argument in which the District Administrator "repeatedly accused" Bugni of being wrong.
conversation was not a "argument" much less a "contentious" one. There was in fact no
rather, as Kunelius testified, they discussed the conversion of military time. She had been
thing by the motel staff and Bugni had related another. Kunelius herself checked into the
was already aware of the proper conversion, even before Bugni delivered his document to
the following day.
The Association describes Bugni's utterance as mere "slang", and while the terms
"vulgarity" are not mutually exclusive, there is an important distinction between them. Not
is vulgar. "Slang" is defined as "non-standard speech. . ." American
"Vulgarity" is "an expression that offends good taste or propriety." While inoffensive slang
acceptable in most settings, no reasonably prudent person would assume, much less contend,
vulgar slang is always and everywhere appropriate. There is no need for "policies"
regarding the use
of slang expressions in the District offices, as inoffensive slang would not reasonably bother
while no reasonable person would use offensive slang in a professional setting.
The District disputes the assertion that manifest disrespect is not insubordination.
definition of "insubordination" encompasses expressions of disrespect. Twin Coast
89 LA 799, 802. Even the definition cited from Roberts Dictionary of Industrial Relations,
"insubordination" as "use of objectionable language. . .towards supervisors" because it
disrespect of management's authority." Insubordination is not limited to disrespect expressed
very face of the superior, as it is enough if the intended target is the supervisor. According
District, arbitrators have recognized that some forms of disrespectful/insubordinate utterances
more serious than others. Bryan Foods, Inc., 109 LA 633. One of the factors to be
in deciding whether the remark should be regarded as insubordination is whether other
were present to hear it. It is reasonable to assume that Bugni had hoped that Kunelius and
would hear his remark, which was spoken aloud by the open door, ostensibly to Krusick.
even if he intended to speak "confidentially" to Krusick, his intent to ridicule her supervisor
was at her desk, was factious, and thus, insubordinate.
Bugni's vulgar comment was inappropriate, especially under the circumstances and he
excuse for making the comment. Further, his rudeness to Krusick and Kunelius also merit
The District cites arbitral precedent for the principle that mockery of a supervisor or
words or behavior toward a supervisor are unacceptable, and that "vulgarity" is punishable
provocative and contemptuous of the individual's position.
Dec. No. 30267-A
Tri-County Beverage Co., 107 LA 577 (1996). Further, Bugni's intentions do not
conduct or preclude the District from setting minimum standards of decorum in its own
The District reasserts that the letter is not discipline, and argues that nothing in
precludes the District from placing a non-disciplinary notice in a teacher's personnel file.
Bugni's vulgar utterance constitutes "just cause". The District suggests that the Examiner
to answer that question in dicta. The plain words of the letter, plus Kunelius' testimony,
doubts as to whether the letter could be construed as discipline. Further, the prior decision
Examiner Jones, resolving the identical question is res
judicata. While the letter, because of its notice
function, may underpin future discipline, it is only insofar as it will demonstrate that Bugni
certain behavior would result in discipline.
The District asserts that Bugni's attacks on others only aggravate his own culpability.
particular, the allegation that Krusick acted either from fear of Kunelius, or in order to gain
Kunelius' eyes belies the facts. Krusick expected no favors from Kunelius, and has not
from her for telling the truth. Rather than acting out of fear, Krusick believed that
cover up for Bugni by failing to tell the whole truth would hurt her credibility with the
Administrator and the Board. Further, the allegation that a "reasonable and prudent" person
not have understood that Krusick would disclose the utterance to Kunelius is best answered
response that no "reasonable and prudent" person would have made the utterance in the first
in that setting, nor would they be surprised if others overheard it or heard about it. Finally,
question of why, if Krusick had ignored Bugni's disrespectful comments about Kunelius in
did she not do so this time, is answered by the content and context of the utterance in
In conclusion, the District requests that in his decision, the Examiner at the least
Krusick's actions and motives, and further requests that the District Administrator's right to
reasonable ground rules for her own offices and to place non-disciplinary letters of notice
invocation of "just cause" be confirmed.
The parties' dispute centers on Kunelius' letter of June 26, 2001 to Bugni, i.e.,
constitutes discipline and, if so, whether the District had "cause" to issue the discipline.
There is little
dispute as to the facts, with only minor differences in the testimony in that regard. While at
Kunelius' letter might appear to be a "written warning", for the following reasons it is
under the circumstances in this case, the letter does not constitute discipline within the
Article VI, D, of the Agreement.
Dec. No. 30267-A
First, as the District points out, the letter does not state that Bugni is being
it states that he "will be subject to discipline if such conduct continues."
(Emphasis added). It speaks
to the consequences if he engages in such conduct in the future. Also, the Board's response
August 6, 2001 denied that the letter was a reprimand.
Second, Kunelius testified that the letter was not intended to be discipline, but to
on notice that she considered his comment to be unprofessional, disrespectful and
therefore unacceptable. The letter states, "I am providing you with written notice that such
is unacceptable." It is also noted in this regard that unlike the discipline Bugni was issued in
2001, the June 26th letter was not titled "written reprimand"; rather, it had
In the context of these facts, Kunelius' letter constitutes a notice to Bugni that his
was considered to be unacceptable behavior, and is not discipline for engaging in the
that regard, it is important to note that the notice does not count as a step in the disciplinary
and does not obviate the need to follow the normal order of discipline. It is also important
remember that at this point it is necessarily only Kunelius' opinion that Bugni's comment was
"unprofessional, disrespectful and constituted insubordination." There has been no
made in those regards by a neutral third party. 1/ An employer is, however, entitled to
employee on notice that it views certain conduct as unacceptable; indeed, such prior notice is
normally required under the "cause" standard. It is also appropriate to include such a notice
employee's personnel file.
1/ The District
have it both ways. The Examiner expressly declines the District's invitation to make such a
determination in dicta.
Whether an examiner or arbitrator would agree with Kunelius in all those regards is left for
For the foregoing reasons, it has been concluded that the District did not violate
Bugni's rights under the parties' Agreement, and the complaint
is being dismissed in its entirety.
While I have declined to gratuitously comment on Bugni's conduct, I will comment
view of why JoAnn Krusick informed Kunelius of what Bugni said to her. Bugni made the
to Krusick in at least a normal conversational voice just outside the Board Room with the
partially open. Afraid the comment had been overheard by those in the Board Room,
Kunelius, Krusick did not wish there to be any question of complicity on her part,
Dec. No. 30267-A
i.e., she did not wish to be viewed as somehow sharing Bugni's opinion of Kunelius or
the comment. Such a desire on her part is understandable and nothing more need be said
Dated at Madison, Wisconsin, this 8th day of July, 2002.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION
David E. Shaw,