BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
IOWA COUNTY HIGHWAY DEPARTMENT
LOCAL 1266, AFSCME, AFL-CIO
Mr. Michael J. Wilson, Representative at Large, Wisconsin
Council 40, AFSCME, AFL-CIO,
8033 Excelsior Drive, Suite B, Madison, Wisconsin 53717-1903, appearing on behalf of the
Brennan, Steil, Basting & MacDougall, S.C., by Attorney Howard
Goldberg, 433 West
Washington Avenue, Suite 100, P. O. Box 990, Madison, Wisconsin 53701-0990, appearing
behalf of the County.
Iowa County Highway Department Employees Local 1266, AFSCME,
Union, and Iowa County, hereafter County or Employer, are parties to a collective
agreement which provides for the final and binding arbitration of grievances arising
The Union requested, and the County concurred, in the appointment of a Wisconsin
Relations Commission staff arbitrator to hear and decide the instant dispute. The
so designated. The hearing was conducted at Dodgeville, Wisconsin, on January 15,
hearing was transcribed and the record was closed on January 29, 1998, upon receipt
of post-hearing written argument and the transcript.
The Employer presents the following issue:
Is the grievance arbitrable?
The parties stipulated to the following statement of the issue:
Did the Employer have just cause to issue a written reprimand
to the Grievant, Mitchell
Zablotowicz, on August 26, 1997, and/or discipline the Grievant, Mitchell
Zablotowicz, as per
the September 12, 1997 Iowa County disciplinary notice?
If not, what is the appropriate remedy?
ARTICLE III - MANAGEMENT
3.01 The County possesses the sole right to operate the
County and all management
rights repose in it, subject only to the provisions of this contract and applicable law. These
include, but are not limited to the following:
A) To direct all operations of the County;
B) To establish reasonable work rules and schedules of work;
C) To suspend, demote, discharge and take other disciplinary
action against employees
for just cause;
D) To layoff (sic) employees;
E) To maintain efficiency of County operations;
F) To take whatever action is necessary to comply with State
G) To introduce new or improved methods or facilities;
H) To change existing methods or facilities;
I) To determine the kinds and amounts of services to be
performed as pertains to County
operations; and the number and kind of classifications to perform such services;
J) To contract out for goods and services subject to the
following conditions: The County
agrees that no work will be transferred out of the bargaining unit while any unit employees
on layoff, nor shall any unit
employees be laid off as a result of a decision to transfer work
out of the bargaining unit,
provided the decision to transfer work out of the bargaining unit is a mandatory subject of
K) To determine the methods, means and personnel by which
County operations are to
L) To take whatever action is necessary to carry out the
functions of the County in
situations of emergency.
3.02 The above rights shall not be used for the purpose of
discriminating against any
employee or for the purpose of discrediting or weakening the Union, and provided further,
the above rights shall be used fairly and reasonably.
ARTICLE IV - GRIEVANCE
4.01 A grievance shall mean any dispute concerning the
interpretation or application of
a provision of this Contract, and shall be handled in the following manner:
4.02 STEP 1: The Union Committee and/or
Union Representative, shall present the
grievance in writing to the Highway Commissioner no later than seven (7) working
days after the
grievance occurred or the employee or the Union knew or should have known of such
In the event of a grievance, the employee shall perform his/her assigned work task and
his/her complaint later. The Commissioner shall within seven (7) working days, in writing,
inform the employee and the representative of his/her decision.
4.03 STEP 2: If a satisfactory settlement is not
reached as outlined in Step 1, the Union
Committee and/or Union Representative may within seven (7) working days of the
receipt of the
Commissioner's decision, present the grievance to the Iowa County Highway Committee.
a meeting shall be held within seven (7) working days of receipt of a written request by the
party unless a later date is set by mutual agreement. The Committee shall within ten (10)
days of the meeting, in writing, inform the Union and employee of its decision.
4.04 STEP 3: If a satisfactory settlement is not
reached as outlined in Step 2, either
party to this Agreement may request within ten (10) working days of the Union's receipt of
Committee's decision that the dispute be submitted to arbitration.
Arbitration Procedure: The parties shall attempt
select a mutually agreeable arbitrator
to hear the case. In the event the parties are unable to agree
on the selection of the arbitrator, either party may request the
Relations Commission to appoint an arbitrator from its staff. The Arbitrator shall make a
on the grievance, which shall be final and binding on both parties. Only questions
application or interpretation of this Agreement are subject to arbitration. Expenses for the
arbitrator shall be borne equally by the Employer and the Union. The arbitration board shall
no power to modify, add to or delete from the express provisions of this Agreement.
On August 20, 1997, Mitchell Zablotowicz, hereafter the Grievant, was a Patrolman
the County. As Patrolman, the Grievant had primary responsibility for his assigned section.
responsibility included functioning as lead worker when crews were assigned to work on his
One August 20, 1997, Patrol Superintendent Venden met with the Grievant at 7:00
and gave the Grievant work instructions. At that time the Grievant was advised,
inter alia, that
he and a fellow employe, Mark Reynolds, were to go to the river hills section of Highway
to remove brush which lay along the north and south side of the highway; that a fellow
would be joining the two at the work site after this employe completed another assignment;
the employes were to pick up the brush that lay on the south side of the highway, walk
two lane highway, and throw the brush down the river bank on the north side of the
that the employes were to pick up the brush that lay on the north side of the highway and
it down the same river bank. The Grievant and Venden also had discussions concerning
signs and the method for removing brush which was adjacent to a blue house.
On August 22, 1997, the Grievant was called in to meet with his immediate
Venden, and Leo Klosterman, the Highway Commissioner. The Grievant was accompanied
a Union Steward. During this meeting, the Grievant was presented with the following:
EMPLOYEE DISCIPLINARY NOTICE
Name of Employee Mitch Zablotowicz
Job Title Patrolman Department
Oral Reprimand Written
Suspension for day(s) Discharge
If oral reprimand, give date, time, and place of reprimand
The above disciplinary action was taken against you today for one
or more of the following
Sexual Harassment 1
Work Performance 1 2 3
4 5 6 7 8 9 10
Attendance & Punctuality 1 2
3 4 5 6 7 8 9 10
Use of Property 1 2 3
4 5 6 7 8 9 10
Personal Injury 1 2 3
4 5 6 7 8 9 10
Personal Safety 1 2 3
4 5 6 7 8 9 10
Appear before the Highway
Statement of facts causing this action:
Aug. 20, 1997
Repeated objection to orders and
Refusal to start work before
Poor preparation for job signing -
cones - traffic paddles.
I delivered a copy of this form to above named individual on
Aug. 22, 97 at
Commissioner's Office at 8:45 AM .
The phrase "Work Performance" had been circled, as had the subsequent "8." After
this, the Grievant engaged in a discussion with Venden and Klosterman. Klosterman told the
Grievant that he would take the matter under advisement. As the Grievant was leaving the
Venden approached the Grievant and asked for the Grievant's copy of the "Employee
The Grievant was recalled to meet with Klosterman and Venden on August 26, 1997,
was provided with a second copy of the "Employee Disciplinary Notice." The document had
modified by altering the date from "Aug. 22" to "Aug. 26." Klosterman had initialed this
modification. During this second meeting, Klosterman advised the Grievant that he was not
to make a decision and wanted the County Board's Highway Committee to intervene.
On August 29, 1997, written Grievance No. 38 was filed with the
County at Step 1 of the
grievance procedure. This written grievance alleged that "Employee Mitchell Zablotowicz
was given a Disciplinary Notice Written Reprimand for poor performance" in violation
Sec. 3.01 and 3.02 of the contract and asked that the following corrective action be
ask that the reprimand be thrown out and removed from Mitchell's file." On that same date,
Grievance No. 39, which is not at issue in this proceeding, was also filed. By letter
September 2, 1997, Klosterman advised the Grievant that "Grievance #38 shows no merit."
On September 8, 1997, the Grievant and his Union Representative met with the
Committee. On September 12, 1997, the Transportation Committee, A/K/A Highway
Committee, issued the following:
Iowa County Disciplinary Notice
DATE: September 12, 1997
TO: Mitch Zablotowicz, Patrolman
On September 8, 1997 you appeared before the
Transportation Committee with Mike Wilson,
Wisconsin Council 40, AFSCME Representative to present your side of the August 20,
incident which resulted in your receiving a written reprimand on August 26, 1997.
reviewing all the information presented the Transportation Committee supports the Written
Reprimand issued to you on August 26, 1997 by Roger Venden, Patrol Superintendent
1) your repeated objections to orders and directions given; 2) refusal to start
supervisor was present; and, 3) poor preparation for job signing, cones, and traffic
retrospective, Mitch a simple job took many additional hours to complete due to your lack of
cooperation and poor preparation. The Transportation Committee believes that your lack of
cooperation and or inability to follow the Patrol Superintendent's instructions shows the need
an increased level of on-the-job supervision. In order that you receive this increased level of
on-the-job supervision, the committee has made the following decision for the discipline to
accompany your written reprimand:
effective September 15, 1997, you will
classified as a Group II - County Patrolmen
Helper for a probationary time period of 90 days; as a Patrolmen Helper you will report
to an immediate supervisor; your compensation will be at the hourly rate of $12.16; to aid
in monitoring your job performance during this time period you will be evaluated on a
regular basis by your immediate foreman (e.g., every 30 days); the same evaluation
information will be conveyed monthly to the Transportation Committee by Leo
Klosterman, Highway Commissioner; at the end of the 90 day period your job
performance evaluations will be reviewed by the Transportation Committee if you have
successfully completed the probationary period you will then be allowed to sign for posted
openings for your prior position.
During this time period of County Patrolmen Helper should any
further incident(s) and or
violation(s) connected with your employment with Iowa County occur, discipline up to and
including discharge could result.
By letter dated September 15, 1997, Klosterman advised the Grievant of the
"You may meet with the Transportation Committee on September 22, 1997 at 7:30 p.m. to
grievances #38 and #39." On September 18, 1997, the County posted a Patrolman position
replace the Grievant.
By letter dated September 18, 1997, Wilson advised the County Highway
Re: Grievances 38 and 39
Pursuant to Commissioner Klosterman's letter of
September 15, 1997, I wish to confirm
the attendance of Mitch Zablotowicz and the undersigned at 7:30 p.m. meeting on
1997 with the Transportation Committee regarding Grievances 38 and 39.
Grievance 38 alleged that the discipline of August 20,
1997, was without just cause and
had been processed at Step I prior to the September 12, 1997, Disciplinary
Zablotowicz in addition to the original reprimand, was effective September 15, 1997,
and placed on a thirty (30) day probationary period to be evaluated "on a regular basis
immediate foreman . . . reviewed by the Transportation Committee . . . if
you have successfully
completed the probationary period you will then be allowed to sign for posted openings for
position." Under the circumstances it would appear that grievance 38 be amended to
discipline taken per the September 12, 1997 IOWA COUNTY
The grievance alleges that the Employer did not have just
for discipline, and that
discipline of September 12 constitutes both double jeopardy and excessive discipline.
It is also noted that the Employer has put
Mr. Zablotowicz on notice that:
During this period of County Patrolmen Helper should any
further incident(s) and or
violation(s) connected with your employment with Iowa County occur, discipline up to and
including discharge could result.
Please be advised that the above not only is part of the alleged
excessive discipline but also
exceeds the employer's authority to unilaterally impose a disciplinary probationary period.
the record you are notified that the conditions as announced are rejected.
Also please be advised that any and all of the disciplinary
actions taken in this instance are
not recognized as precedent for appropriate employee discipline in the future for
or any other bargaining unit employee.
The undersigned shall serve as Mr. Zablotowicz's
representative and accordingly all
correspondence and any other communications regarding the grievance should be directed to
undersigned. The Local Union grievance committee is by copy of this letter is (sic)
the meeting and their invitation to attend. It is my understanding that Mr. Zablotowicz
determined to pursue the grievance with or without the endorsement of Local 1266.
I herein request the following information for use in contract
1. Copy of all employee disciplinary notices issued to
bargaining unit employees within
the approximate ten (10) year period, August 20, 1987, through and including
2. Copy of any and all department rules, regulations,
guidelines, etc. regarding safety
procedures, precautions and the like for traffic control of employee work sites.
3. Copy of any notes, records, minutes, memorandum or any
other documents generated
of any supervisory personnel regarding the work performance of Mr. Mitch
during the course of Mr. Zablotowicz's employment with Iowa County that were not
included in Mr. Zablotowicz's personnel file as of September 12, 1997.
should make a written request to review and inventory the contents of his personnel file.)
The Grievant and Wilson met with the Highway Committee on September 22, 1997,
discuss Grievances No. 38 and 39. On October 1, 1997, Wilson received a letter from
Klosterman dated September 29, 1997, and which states:
Following the Sept. 8, 1997 meeting before the
Transportation Committee, a letter was
prepared and delivered to Mr. Zablotowicz which expressed the concerns of the
was, and still is, apparent to all that Mr. Zablotowicz requires more supervision and
while on the job. Based upon its own investigation, as well as the comments made to the
Committee at the Sept. 8 meeting, the decision was made to affirm the discipline that
and the decision was also made to reassign Mr. Zablotowicz as a
Group II - County Patrolmen
Helper so that better supervision can occur. Under his former job classification,
had only limited supervision
because of the nature of his duties in that classification. The
Committee feels that the level
of increased supervision contemplated by this re-assignment should help to obtain the desired
remedial results. At the recent Sept. 22 meeting of the Transportation Committee, you
appeared with Mr. Zablotowicz. You indicated that you felt that
Mr. Zablotowicz was being
penalized twice for the same misconduct. That is not the case. Mr. Zablotowicz has
reprimanded for his misconduct and, in investigating the matter, the Committee has
that it is necessary for Mr. Zablotowicz to be re-assigned so that he can be supervised
closely and can, hopefully, learn how his job is to be properly performed.
I hope this letter fully addresses your questions and your
On October 2, 1997, the County received a letter from Wilson which is dated
1997, and states, in relevant part, as follows:
Re: Consolidation of Grievances 38 and 39 Appeal to
The Union herein serves notice of the appeal of the
disciplinary grievance to
arbitration. As you will recall grievance 38 was amended to incorporate both the reprimand
the discipline dated September 12, 1997.
Under the circumstances, grievances 38 and 39 should be
consolidated or grievance 39
should be held in abeyance until after grievance 38 is resolved. To determine the reasonable
of discipline, the arbitrator will have to make some sort of judgement as to what was
conduct at the work site on August 20, 1997. The parties could thus save the expense
of a second
The Union would be willing to stipulate that any one of the
following should be appointed
by the Wisconsin Employment Relations Commission from its staff to serve as arbitrator:
Bielarczyk, Jr.; Colleen (sic) Burns; Peter Davis; Amedeo Greco; and, Raleigh Jones.
. . .
On October 14, 1997, Wilson received the following letter, dated October 10, 1997,
County Attorney Goldberg which states, in relevant part, as follows:
Re: Zablotowicz grievances #38 and #39
I have been provided with copies of your certified letters to the
"Iowa County Highway
Commission" which pertain to Mr. Zablotowicz. I also have been given a copy of your
3, 1997, letter addressed to Jan Hollaway-Falk. In your October 1, 1997, letter you state
grievance 38 was amended. The County is unaware of any amendment that was made to that
grievance. I am enclosing copies of grievances that we received. It is my understanding that
grievance #38 pertains to a notice of reprimand that was given to Mr. Zablotowicz for poor
performance, which is alleged to have occurred on August 26, 1997. Grievance #39
Mr. Zablotowicz' allegations that Roger Venden is supposed to have refused to provide
safety flagmen of a job on Highway 133. That alleged refusal is supposed to have
August 20, 1997, or August 26, 1997; I am really not sure what is being alleged here as to
dates. Perhaps you can inform me.
As stated above, there is nothing in the file to indicate that
grievance #38 was ever amended.
Perhaps you can provide me with information as to that amendment. In your letter, you
as to the advisability of consolidating these grievances, or holding #39 in abeyance until #38
resolved. These are your grievances, and we expect the Union to follow the grievance
set forth in the contract. Mr. Zablotowicz was informed that Grievance #38 was denied, at
two, on September 12, 1997. Step 3 requires that the matter be submitted to arbitration
ten working days after the time that the grievant is informed of the step 2 decision of the
Committee. I calculate that this was to have been done not later than September 26, 1997.
ten day period has not been complied with, and the Employer considers the grievance
unless you can provide to me any documents or other information which would shed further
on this point.
In your October 3, 1997, letter, you ask that the County agree
that only certain individuals
working at the WERC would be entitled to hear this grievance. The County is not willing to
direct the WERC as to who it wants the WERC to appoint. The contract only specifies that
Wisconsin Employment Relations Commission is to appoint an arbitrator from its staff. If
matter goes to arbitration, then it will be before the person selected by the WERC.
. . .
Since we have been retained by Iowa County to defend these
claims, please forward all future
correspondence regarding any of these matters to the undersigned at the address set forth in
Wilson sent Goldberg a letter dated October 16, 1997, which states as follows:
Per your request be advised that the incident in question
occurred on August 20, 1997.
A written reprimand was issued to the grievant on August 26, 1997. Written grievances #38
(Discipline) and #39 (Safety) were submitted to Highway Commissioner Leo Klosterman on
about August 29, 1997. The Commissioner denied the grievances in letters dated September
1997. Both grievances were appealed to the next step of the grievance procedure and on
September 15, 1997, Commissioner Klosterman wrote to Mitch Zablotowicz "You may meet
the Transportation Committee on September 22 at 7:30 p.m. to discuss grievances #38 and
The Transportation Committee in a letter dated September 29, 1997, signed by
Klosterman denied the grievance regarding discipline. On October 1, 1997, written notice of
appeal to arbitration was mailed.
Grievance #38 Zablotowicz Discipline has been amended
according to the circumstances.
On September 8, 1997, the Transportation Committee reviewed the discipline, the written
reprimand, and issued more severe discipline in the form of demotion, probation, etc. The
grievance has been amended to include traditional aspects of "just cause" such as double
disparate treatment, excessive discipline and also alleges that the discipline taken by the
Transportation Committee, i.e. probation and loss of job posting rights is unauthorized
contrary to the terms of the collective bargaining agreement. Notice of the amendments were
verbalized by the undersigned at the grievance meeting of September 22, 1997.
The Employer on September 18,1997, (sic) posted the
State Patrolman position to replace
Zablotowicz. All of the above events are incorporated into the amended grievance.
Regarding Grievance #39, the matter is being held in
because it would be
unnecessary to duplicate a hearing on the events of August 20, 1997. Zablotowicz's defense
the discipline is in part is (sic) grounded in the contention that he acted reasonably on
of legitimate safety concerns regarding the August 20, 1997 work assignment.
Upon receipt of a check in the amount of $125 from Local
payable to the Wisconsin
Employment Relations Commission (WERC) I will file the paperwork for appointment of an
Arbitrator from its staff. As per your admonition, the appointment will be left to the
The request I made for records of prior employee discipline
be enforced pursuant to
111.70 (3) (a) 4. and 1. Wis. Stats. The reason for requesting a ten (10) year span is in
because of the unusual nature of the discipline as administered in the instant case.
On October 21, 1997, the WERC received the Union's Request to Initiate Grievance
with an accompanying letter requesting the appointment of a staff member to serve as
of a grievance regarding the discipline of Mitch Zablotowicz.
POSITIONS OF THE
The parties agreed to file written argument on the issue of arbitrability. These
are as follows.
The Grievant is required to comply with the grievance procedure which has been
negotiated by the parties. The Grievant did not comply with this grievance procedure
Grievant did not file a Step 1 grievance on the September 12, 1997 notice; the County
agree to amend Grievance No. 38 to include the September 12, 1997 notice; and,
notification from the County's Attorney that the County expected the Union to comply with
time limits set forth in the contractual grievance procedure, the Union did not request
arbitration within ten working days of the Union's receipt of the Committee's decision.
On September 18, 1997, by certified mail, the Union notified the Iowa County
Commission that Grievance No. 38 was "amended to include the discipline taken
September 12, 1997, Iowa County Disciplinary Notice." On September 22,
1997, the parties met
to consider Grievance No. 38, as amended. On September 29, 1997,
Klosterman responded to
Grievance No. 38, as amended. The County did not object to the Union's amendment of
Grievance No. 38 during the meeting of September 22, 1997, nor in Klosterman's
September 22, 1997. The grievance was processed in accordance with the requirements of
contractual grievance procedure.
Notice of appeal to arbitration was mailed to the Highway Commission on
1997. This notice is adequate for the purposes of Sec. 4.04, Step 3. The
Grievant complied with
the provisions set forth in the grievance procedure and Grievance No. 38, as amended, is
Grievance No. 38, as filed at Step 1, challenges the County's right to discipline the
Grievant by issuing the Employee Disciplinary Notice which was provided to the Grievant on
August 26, 1997. Inasmuch as this Step 1 grievance was presented, in writing, to the
Commissioner within seven working days of the date that the Grievant was provided with
Employee Disciplinary Notice, Grievance No. 38 was filed in compliance with Article 4.02.
When the Highway Commissioner, the Union, and the Grievant met on August 26,
the Grievant was advised that the Highway Commissioner could not make a decision and that
matter would be referred to the Highway Committee. Despite the fact that the Highway
Commissioner had not reached a final decision on the discipline to be imposed on the
the Highway Commissioner denied Grievance No. 38 on September 2, 1997.
The Grievant appeared before the Highway Committee on September 8, 1997. This
meeting was not the Step 2 meeting with the Highway Committee provided for in Sec. 4.03
grievance procedure. Rather, this meeting was for the purpose of acting upon the Highway
Commissioner's referral of the disciplinary decision to the Highway Committee. Following
meeting, the Highway Committee finalized the discipline to be imposed upon the Grievant
it issued the Employee Disciplinary Notice dated September 12, 1997.
On September 15, 1997, the Grievant was advised that he could meet with the
Committee on Grievances No. 38 and 39 on September 22, 1997. By letter dated
1997, Union Representative Wilson confirmed that he and the Grievant would appear before
Highway Committee to discuss the two grievances. Wilson also placed the County on notice
the Union wished to amend Grievance No. 38 to include the Employee Disciplinary Notice
September 12, 1997.
The Union's request to amend Grievance No. 38 was received by the County within
working days after the County had finalized the discipline of the Grievant. Since the claim
was the subject of the requested amendment was presented to the County within the time
set forth in Sec. 4.02 of the grievance procedure and the Highway Commissioner was
with a copy of the request to amend Grievance No. 38, the County was not prejudiced by the
Union's decision to request an amendment of Grievance No. 38, rather than to file a second
grievance at Step 1 of the grievance procedure.
The grievance procedure neither prohibits an amendment of a grievance, nor
a procedure for amending grievances. By discussing the "amended" grievance at the meeting
September 22, 1997, and responding to the "amended" grievance in Klosterman's
September 29, 1997, without advising the Union that it had any objection to the amendment,
County gave de facto approval to amend the grievance as
requested by the Union.
It is not evident that the County raised any objection to the Union's request to amend
Grievance No. 38 until County Attorney Howard Goldberg issued his letter dated
1997, which was received by the Union on October 14, 1997. Under the facts of this
Goldberg's objection to the amendment of Grievance No. 38 is not timely.
The Step 2 meeting on amended Grievance No. 38 was held on
September 22, 1997. The
Highway Committee's written Step 2 decision, i.e., Klosterman's letter dated
1997, was received by the Union on October 1, 1997. Prior to that time, the Union could
have known whether or not a satisfactory settlement had been reached at Step 2. Thus, it is
receipt of Klosterman's letter by Wilson which triggers the ten working days time limit
in Step 3 of the contractual grievance procedure.
By letter dated October 1, 1997, Wilson placed the County on notice that it
amended Grievance No. 38 to arbitration. The County received this letter on October 2,
Wilson's letter of October 1, 1997, constitutes a request to submit amended
38 to arbitration. This request was made within ten working days of the Union's receipt of
Highway Committee's Step 2 decision. The Union and the Grievant have complied with the
requirements of Sec. 4.04.
As the Union argues, the parties have a contractual duty to attempt to select a
agreeable arbitrator prior to requesting the Wisconsin Employment Relations Commission to
appoint an arbitrator from its staff. In the letter dated October 1, 1997, Union
Wilson offered to stipulate to one of several named arbitrators. The County refused this
Attorney Goldberg's letter of October 10, 1997, which was received by the Union on
As the County argues, the Wisconsin Employment Relations Commission did not
the Union's "Request to Initiate Grievance Arbitration" until October 21, 1997.
language of Step 3 of the grievance procedure neither expresses, nor implies, that the
requesting grievance arbitration must file a "Request to Initiate Grievance Arbitration" with
Wisconsin Employment Relations Commission within ten working days of the Union's
the Highway Committee's Step 2 decision, or within any other time limit. By filing
to the Wisconsin Employment Relations Commission on October 21, 1997, which is one
after receiving notice that the County would not stipulate to a specific staff arbitrator, the
did not violate any term of the contractual grievance procedure, or unreasonably delay the
In summary, amended Grievance No. 38 was processed through the grievance
and submitted to arbitration in a manner which is consistent with the requirements of the
contractual grievance procedure. Accordingly, the undersigned concludes that the grievance
Under the facts of this case, the Grievant was not disciplined twice for the same
The reason being that, at the time that the Grievant finally received the initial "Employee
Disciplinary Notice" on August 26, 1997, the Grievant was advised that the Highway
Commissioner could not make a final decision on the discipline and that the matter would be
referred to the Highway Committee. The decision on the discipline was not final until the
Highway Committee issued the "Iowa County Disciplinary Notice" dated September 12,
As set forth in that notice, the Grievant was disciplined for a lack of cooperation and
to follow the Patrol Superintendent's instructions as evidenced by repeatedly objecting to
and directions; refusal to start work before the supervisor was present; and poor preparation
job signing, cones, and traffic paddles.
As the testimony of Patrol Superintendent Venden establishes, the conduct which
to the decision to discipline the Grievant occurred on August 20, 1997. According to
the Grievant's repeated objections to orders and directions on August 20, 1997, were in
to Venden's decision to not assign flagmen.
Venden's testimony and written account of the events indicate the following: at the
that Venden assigned work to the Grievant on the morning of August 20, 1997, the Grievant
that he was not being assigned any flagmen; that the Grievant did not raise any issue with
to flagmen until 7:30 a.m., when the Grievant radioed in that he needed a couple of guys to
that Venden reiterated the procedure that had been explained previously to the Grievant,
a flagman was not needed unless the work crew was loading brush on the truck parked on
highway and, at that time, one man could flag and the other two could load the brush on the
Venden also reiterated that, at other times, if there were to be a problem with traffic, one
could watch and listen, while the other two carried the brush across the road and threw it
side of the river bank; that the Grievant replied in a sarcastic manner, but that Venden could
recall exactly what the Grievant said; that approximately one hour later, the Grievant again
radioed an objection to having to work without flagmen; that Venden reiterated the procedure
using one of the crew to flag when the truck was being used; that the Grievant belligerently
responded "well you better come down here then and show me how to protect both ends of
truck with one man"; that Venden responded that he would be there when he could; that
arrived at the Grievant's work site at approximately 9:40 a.m.; that the Grievant again
to doing the assigned work without flagmen; that the Grievant stated "Roger if you would do
job we wouldn't be here like this" and "You know you really ought to think about the safety
your men"; that the Grievant asked Venden to look at the work site; that Venden walked the
roadway for about five minutes, without observing any problem; that Venden returned to the
Grievant and asked what was the problem; that the Grievant objected to doing the work
flagmen; and that Venden told the Grievant to do the job as he had been instructed or he
home for the rest of the day; and that, thereafter, the Grievant made no further objection
Venden's decision to not assign flagmen.
The Grievant's testimony and written statements dispute the above in the following
respects: the Grievant maintains that, when he initially received his instructions from
the Grievant asked about flagmen; the Grievant maintains that his second radio call occurred
to 40 minutes after the first, rather than one hour; and the Grievant denies that he was
during the first radio call, that he was belligerent during the second radio call, or that he
statements "Roger if you would do your job we wouldn't be here like this" and "You know
really ought to think about the safety of your men."
The Grievant acknowledges that he said "well you better come down here then and
me how to protect both ends of the truck with one man," but denies that he was belligerent.
However, the statement is belligerent because the Grievant is not asking his supervisor for
assistance, but rather, is issuing an order to his supervisor. The Grievant recalls that when
Venden returned from walking the work site, he asked Venden "what he was trying to
made a comment about Venden not wearing a vest; and told Venden that he (the Grievant)
care what Venden did.
The record does not provide a reasonable basis to conclude that Venden would
his testimony that the Grievant said "Roger if you would do your job we wouldn't be here
this" and "You know you really ought to think about the safety of your men." These
are recounted in a written statement which Venden prepared shortly after the event and are
type of statement that a supervisor is likely to remember. The Grievant's own testimony
that he made other statements to Venden which were of the same ilk, i.e.,
sarcastic. Accordingly, the undersigned is persuaded that the Grievant made these statements
The Grievant was the crew lead worker. The Grievant and his crew were asked to
along a rural roadway which was in a 55 MPH speed zone and which was curvy, hilly, and,
times, had a narrow shoulder and was bordered by a guard rail along a river bank. The
and his crew were asked to carry brush across two lanes of traffic. Given the terrain and the
nature of the work task, it was not unreasonable for the Grievant to raise a safety concern by
questioning Venden's decision to not assign flagmen.
The other employes who were at the work site did not testify. While Venden and the
Grievant each claim that these employes made comments to them which support their
on the appropriateness of Venden's work instructions, their testimony concerning these
has been disregarded on the basis that it is unsubstantiated hearsay.
The Grievant's claim that it was unsafe to work without two flagmen is not
by any other witness. Venden's claim that two flagmen were not necessary is corroborated
testimony of Robert Regan, a member of the County's Highway Committee. Moreover, the
flagging booklet issued by the DOT does not indicate that flagmen are required for any work
performed by the Grievant and his crew on August 20, 1997, other than the task of loading
brush onto the truck in the vicinity of the blue house. Since that task, as recommended
Venden, involved a short section of one-lane traffic where vehicles can be seen approaching
both directions and the obstruction was only a single piece of equipment, the DOT booklet
recognizes that one flagman may be utilized.
In summary, the record fails to establish that Venden's work instructions to the
and his crew created any unsafe working conditions. While the Grievant may have had a
reasonable basis to question whether or not there was a need for two flagmen, upon receiving
supervisor's opinion that two flagmen were not necessary, the Grievant did not have a
basis to continue to protest this decision of the supervisor, nor to protest such decision in a
belligerent, sarcastic and disrespectful manner.
Venden's testimony and written account of the events of August 20, 1997, indicate
when Venden first gave the Grievant his work instructions, Venden told the Grievant that he
would need a "full set of signs." The Grievant's testimony, however, establishes that he
understood Venden to have given the Grievant discretion to pull the truck off the highway
onto a driveway as it was being loaded. Given this misunderstanding, and the fact that a
Patrolman is generally able to exercise discretion over the manner in which work is to be
performed, the Grievant had a reasonable basis to conclude that he was not required to load
truck while it was parked on the highway and that he would not need cones, paddles, or the
The Grievant denies that he refused to start work before the supervisor was present.
According to the Grievant, after he received his work instructions from Venden, he met
at the truck; drove to the Clyde Town hall to pick up two set of signs, i.e., road
work ahead and
be prepared to stop; set up the signs; and, beginning on the east side of the work site,
and the Grievant removed brush from the north side of the road until 9:00 a.m., when they
to meet Venden.
When Venden arrived at the work site, he did not ask the Grievant or Reynolds what
had been doing. When Venden walked along the roadway, he started at the west side of the
site, where he had met the Grievant, and walked for approximately five minutes. Venden
walk the entire length of the work site. Nor is it evident that Venden otherwise inspected the
entire work site to determine what work, if any, had been done.
Venden's testimony and written account indicate that his conclusion that the Grievant
refused to start work before his supervisor was present is based upon two facts,
i.e., that the
Grievant and Reynolds were not working at the time that Venden arrived at the work site and
when Venden then walked along the roadway, he did not observe that any work had been
Reynolds did not testify at hearing. Venden, however, was surprised by the fact that
of the work was completed that day because the Grievant had such a "late start." The
that Venden did not think that the time period from Venden's arrival at the work site
until the end
of the work day provided sufficient time to complete all of the work, supports the Grievant's
that he and Reynolds had worked prior to the time that Venden arrived at the work site.
Neither Venden's testimony, nor any other record evidence, establishes that Venden
inspected that portion of the work site which the Grievant claims to have worked. The
does not provide a reasonable basis to discredit the Grievant's claim that he and Reynolds
performed work prior to the time that Venden arrived at the work site.
In summary, the record fails to establish that the Grievant refused to start work
supervisor was present, or that the Grievant had poor preparation for job signing, cones and
paddles. Since these allegations have not been proven, they cannot serve as a basis for
disciplining the Grievant.
The Grievant exhibited a lack of cooperation and inability to follow the Patrol
Superintendent's instructions when, after raising a safety concern regarding the lack of
the Grievant continued to protest this decision of the supervisor and protested such decision
belligerent, sarcastic and disrespectful manner. The County has just cause to discipline the
Grievant for engaging in such conduct.
It is not evident that any of the other employes engaged in the same type of
as the Grievant. Thus, there has been no disparate treatment. Having concluded that the
has just cause to discipline the Grievant, the undersigned turns to the issue of whether or not
discipline imposed upon the Grievant by the County meets the just cause standard.
Prior to the events of August 20, 1997, the Grievant has received only one
discipline, i.e., an oral reprimand issued on March 25, 1997, regarding failure
to observe the time
limits of noon lunch. Venden's other meetings with the Grievant were not documented as
discipline and, thus, cannot be considered to involve prior discipline.
The Grievant has been employed by the County for approximately eight years. The
Grievant's one prior discipline, i.e., the oral reprimand, is for a rules violation
which is unrelated
to the misconduct which occurred on August 20, 1997. Contrary to the opinion of Venden,
principles of progressive discipline were not observed when the County disciplined the
by issuing a written reprimand and the disciplinary notice of September 12, 1997, wherein
Grievant was demoted and placed on probation.
Under normal standards of progressive discipline, an oral reprimand would be
by a written reprimand and a written reprimand would be followed by a suspension. While
demotion is a more uncommon form of discipline, such a discipline is recognized by the
in their collective bargaining agreement. Its juxtaposition between suspension and discharge,
suggests that the parties intended demotion to be imposed if a suspension has not been
in correcting employe misbehavior.
Given the Grievant's prior work record, and the severity of the misconduct which
on August 20, 1997, the County has just cause to issue a written reprimand to the Grievant,
does not have just cause to demote the Grievant and place the Grievant on probation. Based
the above and foregoing, and the record as a whole, the undersigned issues the following
1. The grievance is arbitrable.
2. The Employer has just cause to issue a written reprimand to the Grievant,
Zablotowicz, for repeated objection to orders and directions given.
3. The Employer did not have just cause to issue a written reprimand to the Grievant
refusal to start work before a supervisor was present or for poor preparation for job signing -
cones - traffic paddles.
4. The Employer does not have just cause to demote the Grievant to a Group II -
Patrolman Helper and to place the Grievant on a ninety-day probationary period.
5. The Employer is to immediately remove the Employee Disciplinary Notices dated
August 26, 1997 and September 12, 1997 from the Grievant's personnel file and modify
accordance with this decision.
6. The Employer is to immediately return the Grievant to the Patrolman position that
occupied on August 20, 1997, and to make the Grievant whole for any wages or benefits lost
a result of the unjust demotion and placement on probation.
Dated at Madison, Wisconsin, this 27th day of April, 1998.
Coleen A. Burns /s/
Coleen A. Burns, Arbitrator