BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
PORTAGE COUNTY HIGHWAY EMPLOYEES LOCAL 311,
Mr. Jeffrey J. Wickland, Staff Representative, Wisconsin
Council 40, AFSCME, AFL-CIO,
appearing on behalf of the Union.
Kelley, Weber, Pietz & Slater, S.C., Attorneys at Law, by Mr.
Richard J. Weber, appearing
on behalf of the County.
Portage County Highway Employees Local 311, AFSCME, AFL-CIO, hereinafter
to as the Union, and Portage County, hereinafter referred to as the County, are parties to a
collective bargaining agreement which provides for the final and binding arbitration of
arising thereunder. The parties jointly requested that the Wisconsin Employment Relations
Commission assign a member of its staff to act as an arbitrator to hear and decide a
a written reprimand. The undersigned was so assigned. Hearing was held on
October 30 and
December 12, 1997. The hearing was not transcribed and the parties filed briefs and
the last of which was received on February 17, 1998.
The grievant has been employed by the County since May 17, 1976, and is a
and shovel operator. In the winter, he is assigned to winter maintenance and snow plowing
has 19-20 years' experience plowing snow. The County had a snowstorm on
January 24 and 25,
1997. The grievant was assigned to plow snow in Section 19, an area that includes
the most heavily traveled county road connecting Wisconsin Rapids and
Highway P has the highest priority. Section 19 also includes County Roads C,
E, II and PP. C
is a main road and the others are secondary. The grievant punched in at
approximately 6:52 a.m. on January 24, 1997, and was assigned
Truck #60. Truck #60 was an
older truck and its battery was dead so it was jump started and the heater was hot-wired and
battery load tested. The truck was loaded with materials and gas and the grievant tested the
but the hydraulics were not working so further repairs were made and the grievant arrived in
Section 19 around 10:00 a.m. Another plow operator had been assigned to
plow Highway P until
the grievant arrived on the scene. The grievant plowed for less than an hour when an
short filled the truck with smoke. The grievant got out and was waiting outside the truck
the mechanic arrived in his service truck. The truck was temporarily repaired and it ran for
couple of hours and then quit. Another truck, #76, was sent out and the grievant switched
The person who brought Truck #76 out told the grievant he was having problems with
and the defroster. The grievant plowed for a couple of hours and returned to the shop
a headlight out and brakes needing adjustment. The truck needed 1 1/2 hours of
grievant then returned to Section 19 and plowed until sometime after 10:00 p.m.
to the shop. After returning, the grievant did not tell the mechanics about the wipers or the
defroster problems. The grievant had put in 15 3/4 hours of work by his time card
his trucks were non-usable for eight hours.
On January 25, 1997, the grievant punched in at about 5:26 a.m. and
drove Truck #76 to
Section 19. The grievant plowed in Section 19 for an hour or two and then
returned to the shop
to have the wipers and defroster repaired and to load more sand. The grievant went to the
room and wrote in his diary and then called his supervisor and told him he was sick and
be going home and punched out at 9:25 a.m.
The Highway Commissioner went to Section 19 the morning of
January 25, 1997, and
found that it was in very poor condition with some secondary roads appearing not to have
plowed at all and Highway P snow packed with only "wheel tracks." The Highway
then got Supervisor Dale Peterson and Union Vice President Tom Moss and they toured
Section 19 and all agreed that Section 19 was in poor winter driving condition.
The Highway Commissioner held a meeting with the grievant on January 28,
the grievant was given the following written reprimand on February 14, 1997:
On 1/25/97, I reviewed section #19 and found it to be
poor winter driving condition.
I then picked up Dale Petersen and Tom Moss. We drove the majority of your section and
that your secondary roads had not been opened and contained areas of high snow drifts.
Highway 'P' was snow packed and did not appear to have been salted. Complaints were
on the condition of Highway 'E', between Highway 10 and 'C', and this too had not been
An investigation as to the lack of winter maintenance
on section #19 was then
opened and consisted of interviews with Ken Gliszinski, Jeff Firkus, Jim Shevelson, Tom
and yourself. I also inspected the daily shop labor reports, county salt/sand inventory sheets,
cards, and your winter maintenance time sheet for the period of 1/24 and 1/25/97.
The finding of the investigation shows there was an
work slow down on your
part. Your substandard performance resulted in road conditions that endangered the lives of
general public and the reputation of this department. This level of service will not be
If immediate improvements on maintenance operations are not seen your dismissal from the
Portage County Highway Department will be considered.
The investigation brought out areas where your productivity
lacking during this storm.
Down Time: You must notify a supervisor when your vehicle
is out of service. This
allows the supervisor to assign you a different truck or shift other workforces to your
You must notify shop mechanics of problems with equipment
soon as you are aware of
them, much of this repair work can be done between shifts while you are at home.
Breaks: Maximum length 15 minutes, this includes time spent
writing in your notebook.
Notebook: During the investigation you stated you routinely
stop for a minute or two
during the day to write in your notebook. This takes away from the productive time you
on your section. If you feel you must take notes, do it during your two daily break periods.
As an experienced highway employee, management expects
to accomplish the duties
of patrolman without close supervision. If you feel you are unclear as to the snow removal
practices of this department, contact Dale Petersen or Ed Ewen from our management team
they will review these practices with you.
The letter of reprimand was grieved and appealed to the instant arbitration.
The parties stipulated to the following issue:
Did the County have just cause for the written disciplinary
warning issued to the grievant
in February, 1997?
If not, what is the appropriate remedy?
SECTION 2 - MANAGEMENT RIGHTS
A. The County possesses the sole right to operate county
government and all
management rights repose in it, subject only to the provisions of this contract and applicable
These rights include, but are not limited to the following:
. . .
4. To suspend, demote, discharge, and take other
disciplinary action against employees for
. . .
The County contends that it was the grievant's primary duty to keep
safe for travel during the 5-6 inch snowstorm on January 24, 1997. The County
observes that the
grievant's time card indicates that he worked just under 16 hours on January 24, 1997.
respect to the down time issue, the County submits that when Truck #76 was delivered
grievant at 2:00 p.m., he was told about the wipers and defroster; yet when he came in at
5:00 p.m. he had a headlight replaced and the brakes adjusted but made no mention of
or defroster. It further notes that when he brought the vehicle in at the end of his shift, he
no mention of these problems to either his supervisor or the mechanics who were on duty all
and could have effected the required repairs. The County contends that the next day the
checked in at 5:26 a.m. and at 7:00 a.m. called the mechanic and advised him
problems with the wipers and defroster and he was returning to the shop for repairs. It
the grievant's assertion that he returned to the shop to get sand because he left with a full
morning and he still had 3-4 yards of material on the truck. It maintains that the grievant
to the break room at 8:50 a.m. and at 9:20 a.m. called his supervisor and
reported that he was ill
and punched out at 9:25 a.m. It asserts that he was paid for 4 hours with no evident
results of any
road maintenance and having spread only half a load of sand. It states that the grievant's
maintenance sheet for the period ending January 25, 1997, does not show any sanding
for either the 24th or 25th of January and the "material used" sheet shows none used. It
whether the grievant spread any sand/salt on the roads on the morning of January 25,
County points out that it is undisputed that the roads in Section 19 were in terrible
morning of January 25, 1997. It argues that the grievant did minimal services during
hours he was paid on January 25, 1997, and literally abandoned his post during a snow
without giving his supervisor the opportunity to assess the condition of the section.
With respect to taking breaks, the County points out that the contract states when and
long breaks may be taken. It submits that the grievant violated the break times and
amounts. It admits that a "safety break" may be taken with notice to and approval
supervisor if it needs to be done for safety's sake but that was not the case with the
actions on January 25, 1997.
With respect to the notebook issue, the County argues that the grievant acknowledged
violation of the rules concerning writing in notebooks while on duty by admitting that he
keep detailed notes by writing in his diary while the vehicle was being repaired and he would
and do this at turn-around points while on patrol in his truck. It asserts that drivers who are
operating large and expensive equipment on the highway have no duty and should not write
personal notes to themselves in a diary.
The County argues that the grievant failed to notify his supervisor or the mechanics
the wipers and defroster on January 24, 1997, and he knew about these at
2:00 p.m. with the result that he wasted four hours of time with deplorable conditions
Section 19. It submits that the grievant ignored the contract with respect to break
times. It states
that the grievant is obsessed with the maintenance of his written diary which is not part of
work assignment. It cites a long list of reprimands and suspensions as well as a termination
resulted in reinstatement without back pay to show a continuing course of work slowdowns
substandard performance. It observes that his defenses in the past have been that he is being
singled out and the problems are the fault of someone else or equipment failure. The County
points out that these are the same defenses raised in this case. The County submits that it is
discharging him for his snow plowing activities on January 24 and 25, 1997, but
that his substandard performance resulted in road conditions that endangered lives. It alleges
the reprimand rightly described areas where his productivity was lacking and offered to
practices as to snow removal in case the grievant is unclear. It insists that it acted
the grievance should be denied.
The Union contends that the discipline was unjust, the work rules are ambiguous and
the weather and equipment that resulted in the road conditions in Section 19. The
application of the seven tests applied in Enterprise Wire Co., 46 LA 359 (Daugherty, 1966)
to the instant case. It asserts that the County has the burden of proof and if any of the seven
are not met, just cause for the discipline does not exist. The Union observes that the
charged with engaging in "an intentional work slow down." It also notes that the grievant
disciplined for failure to follow certain procedures relating to mechanical break downs,
notebooks. It acknowledges that work slow downs are prohibited by rule and contract and a
proven violation can result in discipline, however the policies concerning the other charges
unclear. As to breaks, the Union asserts that employes can take "safety breaks" and the
times set forth in the contract are not applicable to the weekend. The Union notes that there
no written rule on mechanical down time and minor problems are not reported to a
when the down time is short. It also asserts that the rule relating to personal notebooks is
and employes have a different understanding than the County. The Union insists that it
unreasonable for the County to enforce its ill-defined rules.
The Union claims that the County's investigation of the grievant's conduct was
to prove guilt. It states the investigation included the tour of Section 19, meetings on
1997, and the February 14, 1997 letter. It contends that the tour was incomplete as
there was no
comparison to Wood County or to Sections 20 and 21 to determine whether the
Section 19 were unique or the same as other roads in the area, which would indicate
equipment were to blame. It concludes that the investigation was inadequate and should not
resulted in discipline.
The Union argues that the County did not conduct a fair investigation because it did
expand the geographic scope of its tour and did not interview more witnesses. The Union
the position that the investigation should have been conducted by someone outside the
It questions the objectivity of the supervisors who had previously discharged the grievant. It
suggests that the Highway Commissioner was biased in statements that he made and for
to assign the grievant a regular truck as opposed to older, unreliable vehicles and failing to
adequately respond to the grievant's problems in Section 19. It maintains that the
the grievant engaged in an "intentional work slow down" is implausible and the County's
conclusion is unreasonable and reflects bias.
The Union submits that the evidence failed to prove the grievant was guilty as
It asserts that the allegation of a slow down is a sham. It claims the evidence proves the
and equipment caused the conditions in Section 19 which received far less service than
roads, 10 hours versus more than 20.
The Union insists that the grievant is a target and did not get equal treatment. The
concludes that the County did not prove any offense and the discipline is not warranted. It
suggests that the County should be penalized for abusing its rights. It asks that the grievance
sustained and the letter removed from the grievant's file and the County be directed to treat
The County contends that if the Union's allegations are taken literally, one would
conclude that the grievant did not know the most basic departmental rules. It submits that
grievant has 20 years experience and knew that he had to report to his supervisor before
to the shop for repairs and he also had to describe the road conditions. It submits that the
has been disciplined before for wasting time such as in 1990, where he wasted four hours to
plow blades on his truck. The County observes that the grievant's tactics are to blame
and ask that management apologize or be penalized. It notes that the discharge was termed
but the Arbitrator concluded the grievant's conduct in his discharge resulted in reinstatement
no back pay due to the grievant's culpability in the matter. The County claims that it has
on the conduct such as the failure to report the problems with the wipers and defroster and
returning to the shop without permission with a half load of sand/salt on his truck. It
his actions were irresponsible and clearly in violation of the rules, especially when the roads
his section were in terrible shape. It maintains that the
grievant's sole assignment was to keep the roads clean in Section 19; yet, his
failure to follow the
simple established rules is the reason that ten hours were squandered and his section not
maintained. It observes that the grievant ignored the rules on breaks and note taking. The
grievant, according to the County, was not on a "safety break" and his note taking had
to do with work. The County states that the Union attributed the Union's Vice President's
statements to the Highway Commissioner to show bias and prejudice, therefore this argument
amounts to sheer nonsense. It claims that it is easy to blame the weather for the bad roads,
weather is the reason that there is plowing, sanding and salting. It avers that the grievant's
job was to keep the roads in good winter driving condition and the County paid him for 20
when he spend only ten of these on the road doing his job and the rest of the time was
the reprimand was appropriate.
The Union does not dispute the conditions in Section 19, but it does dispute
that they were
caused by the grievant. It refers to the County's assertion that Highway P is the most
traveled County highway and questions why the grievant would not be assigned a regular
instead of a spare, old, small and unreliable truck to tend to such a high priority section. It
blames the County for failing to provide the grievant with reliable and appropriate equipment
do the job.
It submits the County was aware of the equipment problems experienced by the
but did not adequately respond. The Union states that minor mechanical problems are
in a snow emergency and it was unreasonable to discipline the grievant for failure to report
wiper and defroster problems at the end of his work day. The Union disputes the County's
assertion that on Saturday the grievant returned to the shop for these repairs; rather, he
to reload with road product and he returned an hour later than he would have if the primary
purpose had been repairs. It insists that permission from management to return to the shop
reload product is not required. It argues that the grievant violated no rule.
The Union disputes the County's claim that the grievant failed to salt County
and C. It contends that he did so but the weather conditions, equipment problems and
from his supervisor account for the limited evidence of effect from the product on Saturday.
Union states that the County alleged that the Union vice president stated that "something had
be done to rectify the situation," inferring he was advocating discipline of the grievant, when
fact this statement was in reference to the roads in Section 19. The Union takes issue
County's appearing to suggest that the grievant drove his section with his plow up and
distributor closed. The Union also explains that the grievant returned to the shop to load
when there was a partial load remaining because it is dangerous to run out of product in the
middle of an application because accidents occur when drivers come to a stretch where
sanding/salting abruptly stops. It disputes that the grievant did not salt or sand on Saturday
because for this to have occurred, the grievant would have had to dump 4-5 yards of
to breaks, the Union insists that there is a lack of proof and of common understanding on the
policy of breaks on weekends and after normal hours and a lack of consistency with respect
to safety breaks. The Union disputes the amount of time the grievant was on break
and denies that
it was 35 minutes and indicates that it was 18 minutes with a call from the Highway
during this period, so the County is being unreasonable. As to writing in his notebook, it
maintains that the grievant only wrote in the notebook when he was on break or not plowing.
insists that the grievant is trying to survive as an employe at Portage County and the
an essential tool. The Union states that given the history between the grievant and the
the letter of reprimand has serious implications for the grievant. The Union argues that the
County's attempt to throw in the "kitchen sink" by listing the grievant's prior discipline must
rejected because these are of no probative value because the evidence fails to support the
discipline. It states the discipline is not appropriate because the conditions in
Section 19 were
caused by weather, equipment and lack of managerial response and oversight. It infers that
County is attempting to complete unfinished business. It requests the grievance be sustained
the remedy it seeks be granted.
The issue presented in this case is whether there is just cause for the
February 14, 1997
letter of reprimand. The County has the burden of proof that the letter was for just cause.
review of the letter is necessary to determine whether it is supported by the evidence. The
two paragraphs of the letter essentially describe the conditions of the roads in
Section 19 on the
morning of January 25, 1997, and the investigation conducted by the Highway
The record supports and does not contradict these two paragraphs. The Union admits that
conditions in Section 19 were as alleged. In its reply brief, the Union states, "County
do not dispute the condition of the roadways in Section 19." The testimony of the
Commissioner, the Union's Vice President and even the grievant supported the conclusion
the roads in Section 19 were in bad condition. As to the people the Highway
to and the documents he looked at as spelled out in paragraph 2, these were not
documents were placed in evidence. The winter maintenance report shows that the grievant
blading and plowing on the 24th and 25th of January, 1997 (Ex. 22). The materials used
nothing on the 24th and 25th of January (Ex. 23). On the other hand, the inventory sheets
that the grievant loaded eight yards of salt at 7:00 p.m. on the 24th and five yards of
sand on the
morning of January 24, 1997 (Ex. 24). It follows that the grievant used five yards of
salt on the
evening of the 24th; the grievant's replacement used only six yards of sand and salt on
1997 in 1.4 hours (Ex. 21). It is noted that County Highway C is not mentioned but
testimony by Mr. Moss that it appeared that it had been salted and was in good
follows that salt was put on Highway C sufficiently to make it in good condition. The
may have put some salt on Highway P but because the center line was not open and it
plowed with only wheel tracks, it follows that the conclusion that it appeared not to have
salted is established.
Turning to paragraph 3, the first sentence states: "The finding of the
that there was an intentional work slow down on your part." An intentional work slow down
a very serious offense, particularly during a snow storm emergency. The grievant had
been given an unpaid suspension from April, 1995, until September, 1996. Surely,
had the grievant engaged in an intentional slow down, he would have been discharged.
was given a letter of reprimand. This simply does not follow so the County could not have
what it said in this sentence. Furthermore, the evidence failed to show that the grievant
in any slow down. There was no evidence that the grievant drove slowly or did things such
fueling, loading or checking in an unreasonably slow manner to indicate a slow down. There
no evidence that he was protesting any policy by the County to support a conclusion that he
engaged in a deliberate slow down to accomplish a change in such policy. The inventory
shows he used 5 yards of salt and 4-5 yards of sand (Ex. 24). The mileage report on
shows 135 miles traveled from 7:06 p.m. on the 24th until 10:35 a.m. on the
25th (183,625 miles
- 183,490 miles = 135), whereas his replacement traveled only 107 miles (183,732 -
107 miles) (Ex. 30). This supports a conclusion that there was no slow down as
Section 19 has
only 50 lane miles. It must be concluded that the first sentence of paragraph 3 is not
by any credible evidence.
The balance of paragraph 3 discusses substandard performance on the part of
The evidence established that Highway P was in bad shape and the secondary roads
opened. The Union has asserted that weather conditions, bad equipment and poor
oversight were to blame and not the grievant. It is true that the grievant had some equipment
problems, but on the morning of January 24, 1997, a substitute operator plowed
Highway P until
the grievant arrived. When further problems ensued, a substitute truck was sent out and the
grievant was given clearance for further repairs. The grievant is not a novice but has been
plowing snow for 20 years and with that much experience, it is expected that he would plow
sand/salt properly with little or no supervision. The mechanic's log indicates other
needed repairs and they even had to dump the load on #440 (Exs. 33-37). Apparently other
drivers accomplished the job of getting their sections in good winter driving condition. It
admitted that Section 19 was in bad shape and even considering the weather and
problems, there is no satisfactory explanation on the part of the grievant why
Highway P was in
such poor shape. At least part of it should have been properly attended to. This is a case
the condition of the roads speaks for themselves. With an experienced operator working on
they were still in poor condition. The only explanation for this state of affairs is that for a
operator, the grievant performed his duties in an incompetent manner or used such bad
that his performance was simply unacceptable. Therefore, it is concluded that the rest of
paragraph 3 is proven by the record and the County's comments are warranted.
The balance of the comments in the letter of reprimand are instructions as to future
which certainly are appropriate. These are simply job instructions as reminders that breaks
limited to 15 minutes and that note taking of the kind the grievant admitted to are not
These items appear to be minor and the directives should take care of them. While the
discussed "safety breaks" and job notes, these were not applicable to the grievant and these
arguments are not persuasive enough to alter the balance of the letter of reprimand. If the
had been reprimanded solely for exceeding break times and note taking and the failure to
the mechanics of the wipers and defroster at the end of the shift, the Union's assertions that a
reprimand was unwarranted would have greater weight. Here, however, the reprimand was
because the grievant, an experienced snow plow operator, did not perform his job in
a satisfactory manner as others did in the same weather and under similar conditions.
grievant's performance did not measure up to that expected of an experienced operator and
deserved the written reprimand except for the first sentence of paragraph 3.
Based on the above and foregoing, the record as a whole and the arguments of the
the undersigned issues the following
The grievance is upheld in part and denied in part. The County did not have just
issue the letter of reprimand dated February 14, 1997, as written, in that the first
paragraph 3 has not been proven. The County is directed to remove the letter of
the grievant's file. The County had just cause to issue the balance of the letter of reprimand
may place an amended letter in the grievant's file where the first sentence of
paragraph 3 has been
Dated at Madison, Wisconsin, this 26th day of March, 1998.
Lionel L. Crowley /s/
Lionel L. Crowley, Arbitrator