BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE DISTRICT COUNCIL 48
and AFSCME LOCAL 587, AFL-CIO
MILWAUKEE AREA TECHNICAL COLLEGE
(Grievance of Jose-Ortiz Coss)
Podell, Ugent, Haney & Delery, S.C., Attorneys at Law, by Ms.
Carolyn H. Delery, on behalf of
Milwaukee District Council 48, AFSCME, AFL-CIO, and its affiliate, AFSCME Local 587.
Mr. William J. Roden, Vice-President and General Counsel, on
behalf of Milwaukee Area Technical
Milwaukee District Council 48, AFSCME, AFL-CIO and its affiliate, AFSCME,
hereinafter the Union, requested that the Wisconsin Employment Relations Commission
appoint a staff
arbitrator to hear and decide the instant dispute between the Union and the Milwaukee Area
College, hereinafter the College, in accordance with the grievance and arbitration procedures
contained in the parties' labor agreement. The College subsequently concurred in the request
undersigned, David E. Shaw, of the Commission's staff, was designated to arbitrate in the
hearing was held before the undersigned on March 24, 1998, in Milwaukee, Wisconsin. A
stenographic transcript was made of the hearing and the parties submitted post-hearing briefs
matter by June 2, 1998. Based upon the evidence and the arguments of the parties, the
makes and issues the following Award.
The parties stipulated that there are no procedural issues and that the substantive issue
Was the Grievant (Jose-Ortiz Coss) disciplined for just cause?
Article III -- Management Rights
The Board retains and reserves the sole right to manage its affairs in
accordance with all applicable laws and legal requirements, except as limited by the
specific provisions of this Agreement. Included in this responsibility, but not limited
thereto, is the right to:
. . .
i. For just cause, suspend, discharge, demote, or take other disciplinary
The Employer maintains and operates the Milwaukee Area Technical College
campuses located at a number of locations, including its South Campus at Oak Creek,
Grievant, Jose-Ortiz Coss, has been employed by the College for approximately 14 years,
and at the
time of the incident in question, held the position of Building Service Worker (BSW) II at the
College's South Campus. The Grievant's immediate supervisor is Clyde Rymer, the head of
Operations Department at the South Campus. Richard Dries is the College's Director of
Also employed at the South Campus is Margaret Damrow, who has been employed at
College for 14 years. Damrow is an Educational Assistant and for the past two years has
the Computer Center (Room A206) at the South Campus. In March of 1997, Damrow
the Center with two other Educational Assistants, Martha Miller and Dorothy Veal. Miller's
shift finishes at 4:00 p.m. and Damrow's shift is from 1:30 p.m. to 10:00 p.m. Students
Computer Center to do their homework, to scan the Internet, or to read their e-mail. In
Damrow, Miller and Veal, the Computer Center is also staffed by student helpers and
although Damrow at times works alone during the evening hours. The number of students at
Center at any time varies from 10 to 20. The closest students are approximately five feet
Damrow's desk and there is a counter
separating Damrow's and Miller's area from the rest of the room. The Center is
partitioned into three
sections by glass panels so as to have a front, center and back room.
Damrow has a hearing impairment, in that she cannot hear high-pitched sounds,
is not necessary to raise one's voice for her to hear the person. Damrow and the Grievant are
acquainted through their both working at the South Campus. The Grievant has taken classes
College and had the permission of his supervisor to use the Computer Center during his
break times, and has done so. As a BSW, the Grievant is required to carry a two-way radio
at all times on the job, so that he can be contacted. The Grievant's assigned work area is
does not include the Computer Center.
Damrow testified that in early 1997, the Grievant was in the Computer Center with
turned on, and that a student complained to Damrow that the Grievant's radio was too loud.
According to Damrow, she spoke to the Grievant about it, but as he was finishing his break
point, the Grievant left the area. The Grievant denies this occurred. There is also a dispute
whether this again occurred soon thereafter. Damrow testified that it happened again and a
complained to her, whereupon she spoke to the Grievant, who then angrily left the Center.
Grievant testified that Damrow had never told him to turn off his radio when he was in the
and that if she had, he would have done so.
On March 6, 1997, Rymer called the Grievant to his office and showed him the
anonymous note Rymer had received:
March 5, 1997
I've noticed that Jose was often in the computer lab for sometime. Was there any
special reason or project that he was doing that requires him to use the computer?
Please investigate this and find out why he is often in the computer lab.
The Grievant testified that when Rymer gave him the note, he asked who sent it and
something to the effect, "You know how Margaret is," and that the Grievant responded to
"So Margaret sent this memo," and Rymer did not say anything. The Grievant testified he
asked if it
was okay for him to go talk to her about it, and that Rymer said okay and gave him the
Grievant then went immediately to the Computer Center and confronted Damrow about the
With regard to the confrontation, there is a considerable dispute as to what the
to Damrow, his demeanor and the tone of his voice. Damrow testified that she was at
talking to a part-time instructor who was on the other side of the counter when the Grievant
the Center and interrupted their conversation. According to Damrow, the Grievant began
waving a piece of paper at her while leaning over the counter toward her, and that he stated,
write this? Did you write this?", and then said, "What I do is my own business and it's
fucking business." Damrow testified that the Grievant was very upset, and appeared tense
and that she felt threatened by his behavior and still is afraid.
Martha Miller, who was near Damrow at her own desk, testified she first noticed the
when he raised his voice, and that he was leaning over the counter toward Damrow waving a
paper in his hand. Miller testified that all she recalled the Grievant saying was, "Did you
and that he repeated this several times. She described the Grievant as being "very loud and
and that he spoke to Damrow in a "loud, angry voice". Miller testified that Damrow looked
and afterward was "very white, shaking" and that she still appeared upset by the incident the
The Grievant testified that although he told Dries he was "angry" when asked about
at the time of the incident, what he meant was that he was "disappointed", because he had
friendly to her and had helped Damrow in the past. He testified that he entered the Center
confronted Damrow and spoke to Damrow in a loud voice, as he always does because she is
According to the Grievant, he then said to Damrow, showing her the anonymous memo,
this?", and then said, "This is not right. Why you do it to me? Why don't you talk to me?"
said she did not know anything about it. The Grievant then said, "What goes around comes
and left the Center. He testified that their conversation lasted two to three minutes and that
Damrow said she did not know anything about it and was trying to read the memo, he
realized she did
not know about it and that he should look for more information. The Grievant denied using
"fuck" or any obscene or abusive language to Damrow. He further testified that he went to
cafeteria for coffee right after confronting Damrow in the Center, that five to ten minutes
Damrow came through the cafeteria, and that he stopped her and told her he had made a
judgment" and apologized to her. According to the Grievant, Damrow then told him that all
said to Clyde (Rymer) was to tell the Grievant to not bring his radio to the Center, and that
Grievant asked her why she had not spoken to him instead. He testified Damrow then said
should shake hands and told him not to worry. Damrow testified she has not spoken to the
about the matter and that he has never apologized to her.
Damrow did not attempt to contact the security guard the evening of the incident, but
if someone could stay and walk her to her car when she was done with work, and a student
that night and the next. Damrow did tell Karen Switzer about the incident
later that same day. Switzer is the Campus Chair of the School's Business Division,
Damrow's time sheets and to whom Damrow calls in if she is ill. Switzer told Damrow to
matter to the Grievant's supervisor, Rymer. The day after the incident Damrow reported the
Rymer who said he would talk to the Grievant about it. Damrow testified she told Rymer
would not tolerate such language and that she would like to have someone walk her to her
car in the
evenings, and that he said it could probably be arranged with security. Damrow did utilize
that regard a few times after the incident. Rymer spoke to the Grievant about the matter, but
take further action or notify anyone higher up in management of the matter.
On or about March 24, 1997, the President of the College received the following
DR. JOHN BIRKHOLZ
I AM A STUDENT AT MATC AND I AM WRITING THIS NOTE FOR ME AND
THE OTHER PUPILS IN MY CLASS. MY TEACHER IS MARGARET, WHO IS
AN INSTRUCTOR AT SOUTH CAMPUS, IN A206 NITE SCHOOL. I BELIEVE
SHE IS A COMPUTER TECHNICIAN ON NITE SCHOOL.
ABOUT 2 OR 3 WEEKS AGO, JOSE ORTIZ FROM OPERATIONS
DEPARTMENT CAME INTO THE COMPUTER LAB WITH HIS RADIO ON
DISTURBING THE CLASS WITH HIS RADIO ON WITH OUTSIDE STATIC
AND CONVERSATION FROM THE RADIO DISTURBING THE CLASS WHILE
MARGARET WAS GIVING THE CLASS. JOSE ORTIZ WAS USING
MARGARET ASKED HIM KINDLY TO LEAVE THE CLASS TILL SHE
WAS DONE WITH HER CLASS. HE WAS VERY UPSET AND SAID HE HAD
PERMISSION TO USE THE COMPUTER. THIS IS OUR COMPLAINT.
(1) WE PAY FOR OUR SCHOOLING AND WISH NOT TO BE
DISTURBED IN OUR CLASS.
(2) TWO DAYS LATER JOSE ORTIZ CAME IN THE MIDDLE OF
THE ENTIRE CLASSROOM WITH A PIECE OF PAPER, WAVING IT IN
FRONT OF MARGARET'S FACE AND TOLD HER IN A LOUD AND
BOISTEROUS TONE "TO KEEP YOU'RE FUCKING NOSE OUT OF MY
BUSINESS AND IT WAS NONE OF HER BUSINESS WHAT HE DOES" HE
USED THE WORD FUCKING AT LEAST THREE TIMES IN A ABUSIVE
MANNER WHICH IS UNBECOMING TO ANY EMPLOYEE OF MATC AND
ESPECIALLY FROM THE OPERATION DEPARTMENT.
(3) WE WOULD LIKE TO KNOW WHY HE SPENDS ONE TO TWO
HOURS A DAY ON THE COMPUTER AND ESPECIALLY ON THE
(4) WITH ALL THE TIME HE SPENDS ON THE COMPUTER
DURING HIS WORKING HOURS SHOULD BE LOOKED INTO B DOES'NT HE
HAVE A JOB LIKE THE REST OF THE EMPLOYEES IN THE OPERATION
(5) DR. BIRKHOLZ WE REQUEST YOU LOOK INTO THIS
STUDENTS OF A206 COMPUTER LAB SOUTH CAMPUS
Dr. Birkholz turned the matter over to the College's Director of Operations, Richard
Dries then began investigating the matter and interviewed Damrow, Miller and met with the
and the Grievant to obtain his version of what had occurred. Damrow told Dries the Grievant
used the word "fuck", while the Grievant denied doing so, and Miller did not recall hearing
that word. The Grievant did state to Dries that he was "angry". Dries testified that as a result
investigation, he felt the evidence as to whether the Grievant used obscene language was
and that element was not considered as a part of the basis for his discipline. Dries concluded
Grievant had otherwise done what was alleged and that his actions merited a three-day
without pay and made that recommendation to the College's Labor Relations Department.
testified that when he asked Rymer why he had not reported this matter to him, that Rymer
thought it had been resolved between Damrow and the Grievant.
On April 16, 1997, Dries issued the following letter of suspension to the Grievant:
M E M O R A N D U M
DATE: April 16, 1997
TO: Jose Ortiz-Coss
FROM: Richard Dries
RE: Suspension Notice B Inappropriate
On March 31, 1997 a fact finding meeting was held at the South Campus to review
allegation that you had disrupted students in Room A206 on March 6, 1997.
Specifically, you were reported to have, in a loud voice, angrily confronted a District
employee in this room. Union representation was present for this meeting.
As a result of this meeting, it has been determined that you did confront an A206
member on March 6, 1997. This confrontation was in response to your assumption
that an anonymous complaint about your presence in that computer lab had been sent
by the above noted staff member. This confrontation was witnessed by students who
were using this facility and a faculty member.
Your conduct, as noted above is inappropriate and inconsistent with the mission of
District. Specifically, your actions constitute a serious violation of Department Work
Rule XIV, item A (attachment). In confronting the staff member in Room A206 you
disrupted the work of District staff and the students who were utilizing this facility.
This type of disruptive behavior will not be tolerated. In consideration of your actions,
you are being placed on a three (3) day unpaid suspension. During this period, you
may not utilize any accumulated sick, holiday or vacation pay. During this period, you
are not to be present in the workplace. You are to return to duty on April 21, 1997 at
4:00 P.M. Future incidents of this nature will result in further disciplinary actions up
to and including termination of your employment.
MATC has a fully confidential Employee Assistance Program (EAP). You may
contact the EAP by calling the EAP Coordinator at 342-4559 or the Manager,
Compensation and Benefits at 297-6204.
Work Rule XIV, A, reads as follows:
XIV. GENERAL RULES OF CONDUCT
Commonly accepted rules of conduct help maintain good relationships between
people. They promote co-operation, responsibility and a good working environment.
It is important that you practice courtesy, respect, and maintain an effective working
relationship with your supervisors, co-workers, staff, faculty, students, and the general
public. Conduct which is inappropriate and which may result in disciplinary actions
include but are not limited to:
A. Actions or conduct that disrupts the work force such as profane, obscene,
abusive, or harassing language. Fighting, threatening, intimidating, or coercing others
on MATC premises or carrying weapons.
A grievance was filed on the suspension and in the course of the grievance procedure
suspension was reduced to two days in an attempt to resolve the matter. The attempt was
and the parties proceeded to arbitration of their dispute before the undersigned.
POSITIONS OF THE PARTIES
The Employer takes the position that it had just cause to impose a two-day suspension
pay upon the Grievant based upon the incident of March 6, 1997. The Grievant verbally
threatened a co-worker in response to an anonymous memorandum. As an Educational
Damrow has the responsibility for maintaining a learning atmosphere in the Computer Center
accomplishes that task by requiring individuals to lower their voices or turn down the volume
radios. On two occasions prior to March 6, Damrow was required to speak to the Grievant
volume on the radio he is required to wear as part of his job. Based upon complaints from
about the volume of the radio, Damrow had told the Grievant to turn off his radio while
Center. On the second occasion, when Damrow approached the Grievant, he became upset
the Center in an angry manner.
According to the Employer, on March 6, 1997, the Grievant stormed into the Center
confronted Damrow in the presence of approximately 30 students and staff members, and
Damrow was conversing with an instructor. The Grievant interrupted their conversation and
waving a piece of paper and shouting at Damrow in a threatening tone of voice and
shouting, "What I do is my own business and it's nobody else's fucking business!" The
actions were so loud and abusive and disruptive that Damrow's conversation with the
ceased, the students fell silent, and all eyes were directed upon
the Grievant. Damrow froze in response to the Grievant's abusive behavior and became
what further action he might take. The incident was such that it instilled continuing fear in
that affected her ability to perform her job and students who had witnessed the incident were
concerned for her safety. Damrow relied on the students to walk her to her car after the
had a security guard frequent the Center at her request. The paper the Grievant was waving
anonymous memorandum addressed to Rymer, which questioned the amount of time the
spending in the Center. The Grievant assumed that Damrow had written the memorandum
confronted her with it minutes after Rymer showed it to him. Damrow testified that she did
the memorandum and the Grievant testified that he subsequently also did not think she wrote
During the month it took to investigate the matter, the Grievant never offered an
his behavior, and instead denied the severity of the incident. It is also only now that the
claims he only spoke loud because of Damrow's hearing impairment, however, Damrow
she consistently tells people that it is not necessary to speak to her in a loud voice and that
explained that to the Grievant, who thereafter spoke in a normal tone to her. Also, while the
denied using obscene language, he did not deny the incident itself. In investigating the
determined that Damrow was a more credible witness, as third party witnesses corroborated
The Employer asserts that given the disruptive and confrontational nature of the
conduct, a two-day suspension is appropriate.
The Employer cites the Daugherty seven tests of just
cause, and asserts that it has satisfied all
of the elements of that test. The Grievant was adequately warned of the consequences of his
The evidence indicates that he had received a copy of the Operations Department Work Rules
specifically forbids "actions or conduct that disrupts the workforce such as profane, obscene,
or harassing language." That work rule is reasonably related to the efficient and safe
operation of the
College. The Employer has not only the right, but the duty to create a working environment
harassment and threatening behavior. This is especially so given the national rise in
violence and harassment. The Employer, through the Director of Operations, conducted a
investigation before administering the discipline. An experienced manager, Dries interviewed
parties involved, including the Grievant and Damrow, as well as Martha Miller, a third party
While Dries was unable to identify the person who had drafted the anonymous memorandum
Rymer, that has no relevance, since the Grievant was not disciplined for the conduct cited in
memorandum. On completing the investigation, Dries issued the suspension letter detailing
Grievant's misconduct and the department work rule that was violated. Also addressed was
rationale for not tolerating the Grievant's conduct. As to the fairness and objectivity of the
investigation, there is no evidence that management exhibited any biases with regard to the
which the investigation was conducted. With regard to whether there was sufficient
evidence of guilt, through the investigation Dries accumulated sufficient evidence upon
which to base
his disciplinary decision. The Grievant admitted to Dries that he became angry after reading
memorandum and that he confronted Damrow because he assumed she had written the
The Grievant essentially admits the incident occurred, but characterizes it differently than
witnesses. However, Damrow described the confrontation and her version was corroborated
Miller, who was approximately five feet from Damrow and the Grievant when it occurred.
regard to whether the work rule in the discipline was applied in a discriminatory fashion,
testified that an employe in the department was recently suspended for a hostile confrontation
another employe that was similar to this case. A grievance was not filed challenging that
Finally, as to whether the penalty reasonably relates to the seriousness of the offense and the
Grievant's past record, Dries testified he considered three factors in making his decision: 1)
there was a violation of a specific work rule; 2) how egregious was the conduct; and 3) what
past practice. Dries testified the past practice usually is to follow progressive discipline, but
not do so when the conduct is so abrasive and serious that progressive discipline is not
Employer cites an award where an arbitrator rejected the assertion that an employe who had
his co-workers deserved a written warning, rather than discharge. B & B Poultry, 81
Next, the Employer asserts that the Grievant created a hostile environment in
confronting a co-worker. Damrow has the right to work in an environment free from threats
and intimidation and the
Employer has recognized this right and taken steps to make sure employes are aware of its
against harassment. Further, arbitrators have been overturned by courts when they have
employers for implementing discipline in cases such as this. The Grievant was not provoked
outburst at Damrow. The evidence indicates Damrow was engaged in a conversation with an
instructor when the Grievant approached her, and that she neither looked at him, nor spoke
prior to his outburst. The memorandum that supposedly incited the Grievant was unsigned.
showed the memorandum to the Grievant, who then went straight to the Center to confront
If anything provoked the Grievant, it was his own inappropriate conduct cited in the
A two-day suspension is reasonable. Under the Management Rights provision of the
Agreement, the Employer retains the right to suspend, discharge, demote, or take other
action for just cause. When an employe violates a rule or engages in conduct meriting
discipline, it is
primarily the function of management to decide on the proper penalty. Hess Oil Virgin
Corporation, 93 LA 580 (Chandler, 1989). The arbitrator is only to intervene when the
proves discriminatory unfairness or arbitrary or capricious action. In this case, the
rules of conduct alerting its employes as to what is considered inappropriate conduct. The
provided input and approval of these rules, and the Grievant received a copy of the rules
started his employment with the College. Dries conducted a thorough investigation of the
based on the facts, the Grievant
was suspended for inappropriate conduct listed in those work rules. The Grievant's
abusive behavior, coupled with profane language, is unacceptable under those rules. Further,
Grievant displayed his unprovoked anger and threats in front of a room full of students and
members. Thus, a two-day suspension is appropriate.
The Employer notes that it reduced the original three-day suspension to a two-day
and asserts that stiffer penalties have been upheld for similar degrees of harassment, such as
disparaging remarks toward a co-worker, or using racial epithets and vulgar language.
evidence has shown that a suspension is a common penalty for similar conduct in the
Operations Department and it would be inappropriate to deviate from that practice in this
With regard to credibility issues in the case, the Grievant's claim that he did not say
or that he raised his voice to compensate for Damrow's deafness, cannot be credited.
motive and bias, there is a presumption that Damrow and Miller were credible and that the
was not. The Grievant, being the recipient of the discipline, and thus having the most to lose
from the proceeding, is presumed to have a strong incentive to not tell the truth. When the
testimony is contradicted by disinterested third party witnesses, the testimony of the
witnesses should be credited. Citing, Fairweather's Practice and
Procedure in Labor Arbitration,
Third Edition, at 238 (1991). In this case, Damrow and Miller had no reason to fabricate the
against the Grievant. Miller was seated approximately five feet from Damrow at the time of
incident and was able to both see and hear the Grievant and her testimony supports that of
Having nothing to gain from her testimony, Miller is more credible than the Grievant.
obviously in the best position to witness the language and actions of the Grievant and
although she has
a hearing impairment, she can hear a normal conversation and is proficient at reading lips.
She is also
capable of witnessing a person's demeanor and testified that the Grievant was upset and
conflicting testimony as to what the Grievant said during the incident must be resolved
Grievant and the Union's third party witnesses. Joanne Haglund, who investigated the matter
Union, and testified on behalf of the Grievant, agreed with the statement on
cross-examination that it
is a rare occurrence when management tells the truth. Similarly, Ronald Krutzka testifying
Grievant, testified that he believed the Grievant because he was in the Union. Thus, neither
was able to offer unbiased testimony.
The Employer concludes that given the serious issue of harassment in the workplace,
College's attempt to deal with that issue, a modification of the Grievant's discipline in this
a message to him, the victim, and the students who observed the incident, that harassment is
acceptable at the College.
The Union takes the position that the two-day suspension was unduly harsh, and that
the Employer did not have just cause to impose that discipline upon the Grievant. The Union
that in the Grievant's 14 years with the College, he has no recorded disciplinary actions in
personnel file. With regard to the incident in question, the Union asserts that when Rymer
Grievant the anonymous note referencing the Grievant's using computers at the Center, the
then asked Rymer whom he thought might have sent it and Rymer suggested that Damrow
been the author. The Grievant received permission from Rymer to speak to Damrow about
and gave him the anonymous memo. The Grievant admits that he was very disappointed with
Damrow, since he had known her since her first day at the South Campus and had helped her
including walking her to her car. The Grievant testified that he took the original memo to
and questioned her about it, and wanted to know if she had sent it. The encounter lasted only
three minutes and when the Grievant saw Damrow later in the hall, he apologized to her and
that he had used bad judgment. While Damrow testified that the Grievant used vulgar
testified she was fearful for her life, the incident occurred on Wednesday, March 5, but she
contact security until the following Monday. When she did contact security, she just asked
officer to check on her every once in a while, and did not report the incident. Further,
admitted that when she did talk to Rymer about the matter, she did not tell him that she felt
threatened, but only that she would not tolerate that kind of language. Damrow testified that
wanted Rymer to approach the Grievant and explain the situation, and hopefully prevent it
occurring again. Damrow also testified that the only action she wanted was an apology from
Grievant. As to abusive language, Miller, who was sitting to the right of Damrow when the
occurred, testified that the only words were heard were, "Did you write this?", and that she
hear any abusive language. Miller admitted that no one called security, even though a
With regard to management's action in the matter, Dries testified that he became
the request of his supervisor, and that neither the Grievant's supervisor, Rymer, or Damrow,
requested that the Grievant be disciplined. Further, while incident reports are used for
complaints, no report was ever made by any employe regarding this incident. Dries testified
the anonymous letter to the College not been received, he would not have taken any action.
testified that the Grievant admitted that the note upset him, and that it was wrong for him to
confronted Damrow in an angry manner. Dries also admitted that had he received such a
note, he too
would have been upset by it. Dries further confirmed with Miller that no obscenity was used
Grievant. When Dries questioned Damrow about the matter, she had no further complaint
it had been initially resolved, and did not express any hostility toward the Grievant, nor did
request that any security measures be taken.
Dries testified that the Grievant should have resolved the issue with his supervisor,
he also admitted that Rymer believed the matter between the Grievant and Damrow had been
and was not in need of further action. Dries further admitted that there have been
between employes and that many resulted only in warnings or counseling. An example of a
situation where an employe was disciplined for a confrontation involved a physical
Dries also acknowledged that, although he was aware of the Grievant's long and clean
record, he did
not consider those factors in reaching his decision.
The Union asserts that the issue to be determined in this case is whether the Grievant
suspended for reasonable and proper cause under the circumstances. In making that
is essential to consider whether there was a system of progressive discipline in effect, and if
whether the Employer was obligated to follow those procedures under the circumstances.
individuals have been guilty of excessive wrongdoing, arbitrators have not hesitated to set
reduce penalties where the employer failed to follow an established system of corrective
Progressive discipline is a well-accepted concept, the intent of which is to correct the
possible, by the use of progressively severe penalties. The undisputed evidence shows that
Employer has in effect a system of progressive discipline. Thus, the remaining question is
not the Employer properly applied progressive discipline to the Grievant in accord with its
great weight of arbitral authority holds that if there is such an established system of
progressive discipline, it must be followed except in unusual circumstances. The Union cites
of arbitration awards where the arbitrator set aside the discipline because the Employer failed
the established progressive discipline procedures. While an Employer has the right to expect
reasonable work rules will be followed, employes have the right to expect that reasonable
established procedures will be followed.
In this case, it is undisputed that the Grievant had no prior discipline in his 14 years
employment. The Union asserts that while it maintains the Grievant did not use abusive
even if he did, the penalty assessed in this case was excessive. The established disciplinary
of the Employer would first call for a verbal reprimand, and then proceed through a written
before going to a suspension or greater discipline. Here, the Grievant had not received as
much as a
counseling letter prior to this incident. Having embraced the principle of progressive
parties are bound by its application.
The Union asserts that in this case the Employer applied unequal treatment to the
The Employer must enforce its rules and maintain discipline in a consistent and fair manner.
this basic responsibility, the Employer has the obligation to evaluate the nature of the
offense, the past
history of the employe, the degree of fault, and whatever mitigating factors influenced the
is upon the evaluation of all of those factors that the Employer must make its decision. Dries
that there have been incidents where
employes have had confrontations and that many of those employes only received a
counseling. He admitted that the example he used was different from this incident in that it
a physical confrontation. Here, the Grievant only used words. While they may have been
inappropriate, they were not obscene or abusive. Principles of fairness and equity dictate that
treatment must be remedied. As it has been shown that the Employer's penalty in this case
similar to those assessed in the past, it must be concluded that the Grievant's suspension was
and therefore improper.
The Union concludes that the contractual just cause standard involves certain
must be met, the most widely recognized criteria being those articulated by Arbitrator
the "Daugherty Standards". All seven of those criteria must be met in order for there to be
As they were not all met in this case, and the contractual obligation of the Employer to deal
impartially with its employes in accord with fairness and due process was not met, it must be
that the penalty imposed was unduly harsh. Thus, the grievance should be sustained and the
Where, as here, the issue is whether there was just cause for the discipline imposed,
two prongs to the inquiry: Did the employe engage in the misconduct alleged, and if the
yes, is the level of discipline imposed reasonable relative to that misconduct and the
With regard to the first question, it is necessary to review the basis offered by
its decision to suspend the Grievant. The suspension letter stated that the Grievant "did
A206 (Computer Center) staff member on March 6, 1997", and that "This confrontation was
witnessed by students who were using this facility and a faculty member." The letter goes on
in relevant part,
Specifically, your actions constitute a serious violation of Department Work Rule
XIV, item A (attachment). In confronting the staff member in Room A206 you
disrupted the work of District staff and the students who were utilizing this facility.
This type of disruptive behavior will not be tolerated. In consideration of your actions,
you are being placed on a three (3) day unpaid suspension.
Although the District is now asserting that the Grievant used obscene language in
Damrow, that allegation does not appear in the Grievant's suspension letter. Moreover, Dries
that he felt the evidence in that regard was inconclusive and that the decision to suspend the
was not based on his having used profanity, but upon his display of hostility in
"his confrontation with
Damrow" (Tr. 141-142). Given Dries' testimony and the
lack of mention of the use of profane or obscene language as a basis for the decision to
Grievant, that allegation is not further considered or addressed.
With regard to the Grievant's demeanor when he confronted Damrow, both Miller
Damrow described him as appearing to be angry and upset. Damrow described the Grievant
"yelling" and Miller testified he was "very loud" and "disruptive". Damrow testified that
occurred the room went silent and Miller testified that the students in the Center stopped
were doing and watched the Grievant. While the Grievant testified he was not "angry", and
spoke "loud" due to Damrow's hearing impairment, that appears to be an attempt to diminish
extent of his behavior, rather than an accurate description of it. In the face of his initial
Dries that he was angry and upset at the time, and the congruent testimony of Damrow and
those regards, it is concluded that the Grievant was visibly angry and speaking in a voice so
to be heard above everyone else and so as to quiet the room. The Grievant does not deny
paper at Damrow or interrupting her conversation with the instructor, nor does he deny that
behavior disrupted the students and others that were in the Computer Center at the time.
The College asserts that such conduct constitutes a serious violation of Work Rule
Actions or conduct that disrupts the work force such as profane, obscene, abusive, or
harassing language. Fighting, threatening, intimidating, or coercing others on MATC
premises or carrying weapons.
The evidence indicates that the Grievant received a copy of the work rules. As the
on March 6th disrupted the work of Damrow and others in the Computer
Center, as well as that of the
students, and had the effect of intimidating Damrow, the Arbitrator agrees.
In considering the second question under the just cause standard, it is necessary to
level of the misconduct, how other employes who have engaged in such conduct have been
and whether there were any mitigating circumstances.
The Arbitrator is not convinced by the evidence that Damrow feared she would
physically harmed by the Grievant, nor that the Grievant intended any physical harm to her.
testified that she expected Rymer to speak to the Grievant and have the Grievant apologize to
While she also testified she feared for her life, that she asked Rymer about having security
to her car at night and asked security to check on the Computer Center once in awhile, it
real concern was avoiding having the Grievant confront her again. However, the Grievant's
not only disrupted Damrow's work, but that of everyone else in the room, which included
employes and the students using the
Computer Center. Further, this was not just a quick remark or angry comment. By the
admission, his confrontation lasted two or three minutes. While that may not seem like a
it is a very long time to have someone yelling angrily at you and is also more disruptive for
present. Miller, an apparently unbiased co-employe, testified that Damrow was white and
after the confrontation and still appeared to be upset the next day. The Union's assertion that
could not have taken the incident that seriously since it happened on Wednesday, March
5th, and she
waited until the following Monday to contact security, is not supported by the record. The
occurred on Thursday, March 6th and Damrow's unrebutted testimony is
that she reported it to Switzer
that evening and to Rymer the next day. The Grievant's testimony that he talked to Damrow
cafeteria minutes later and apologized to her is credibly refuted by Damrow. It is also
Damrow would tell the Grievant not to worry about it, given the degree to which she
appeared to be
upset, her reporting the matter to Switzer that evening, and asking that someone walk her to
The Union also asserts that Dries conceded he would not have taken any action in
had it not been for the second anonymous memo received by the College and that Rymer
matter to have been resolved between the Grievant and Damrow. Dries testified as follows in
Q. So it was over two weeks before you got involved in this?
A. Before I was aware of it, yes.
Q. And if you had not, or the president had not received that particular
anonymous letter, this matter would have never been addressed by you; is that
A. I don't think that's fair to presume that.
Q. Well, Clyde never reported it to you, correct?
A. He hadn't at that point.
. . .
MS. DELERY: I'll rephrase the question. Did you question Clyde Rymer on
why he did not report this to you?
Q. And what was his response?
A. His response was that he thought the matter was resolved between Jose and
Margaret. My response to him was this is not merely a matter between Jose and
Margaret, this is a matter which strikes to the heart of what we are trying to do at
south campus and that is to provide an educational experience and a work environment
where people feel secure from actions of intimidation in the work pace, and that he
errored in that approach. The fact that he thought it was resolved between Jose and
Margaret does not address the issue that there still was a hostile confrontation that day,
and that institution has a wider interest than that.
The College may appropriately consider its institutional interests in discouraging and
preventing conduct such as the Grievant's and may appropriately consider the impact the
on others besides Damrow, such as the students who were present at the time. While the
the victim of the confrontation is relevant, the propriety of the Employer's disciplinary
decision is not
dependent upon whether that individual is sensitive or has a "thick skin" and is able to shrug
The record regarding how other employes have been treated after engaging in similar
misconduct is limited to two incidents. One was an incident involving a physical
between two employes resulting in a suspension, and the other involved an instructor
speaking to mail
room employes in an abusive and insulting manner using obscene language, and who
not disciplined. While there was also testimony regarding a witnesses' understanding that an
used abusive language with other employes in the College's bookstore and was not
is too little information to utilize it for comparison purposes. Clearly, a confrontation
physical contact is distinguishable from this case in that such misconduct is more egregious.
other hand, the instructor's abusive manner in dealing with two mailroom employes did not
disrupting students as well, nor was it intimidating, as in this case. This case falls
between the two other incidents. The duration of the confrontation and the anger that was
Damrow personally made it more intimidating and disruptive placing it closer on the
spectrum to the
physical confrontation than to the abusive remarks.
The Grievant had approximately fourteen years of service with the College with a
record at the time of this incident. The record also indicates that the Grievant had previously
harassed by a co-employe. The Grievant testified that he thought the anonymous note was
more of the
same and that Rymer had suggested that Damrow had authored it. While the Grievant was
understandably upset by the anonymous memo, especially in light of his prior problems with
co-employe, that does not justify his conduct.
As far as Rymer's being satisfied that the matter had been resolved between the
Damrow, it appears this was based on his presumption that the two had discussed the matter
Grievant had apologized to Damrow. Damrow credibly testified that neither had occurred. As
previously, the Grievant's version that they spoke amiably minutes after the confrontation
Damrow told him not to worry about it after he apologized is not plausible, given the degree
Damrow was upset by the Grievant's actions, according to her testimony and Miller's.
Given the duration and emotional level of the Grievant's confronting Damrow, the
which it occurred, the disruptive impact it had on the students in the Computer Center, as
well as on
Damrow and the other employes, and the Grievant's attempts to avoid responsibility for his
it is concluded that the Employer had just cause to depart from progressive discipline and
two-day suspension in this instance.
Based upon the foregoing, the evidence, and the arguments of the parties, the
makes and issues the following
The grievance is denied.
Dated at Madison, Wisconsin this 26th day of October, 1998.
David E. Shaw, Arbitrator