BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
LOCAL 1366, AFSCME, AFL-CIO
CITY OF FOND DU LAC
The Union and the City named above are parties to a 1998-99 collective bargaining
that provides for final and binding arbitration of certain disputes. The parties asked the
Employment Relations Commission to appoint an arbitrator to hear the grievance of Michael
A hearing was held on October 20, 1998, in Fond du Lac, Wisconsin, at which time the
given the opportunity to present their arguments and evidence. The parties completed filing
by December 16, 1998.
The issue to be decided is:
Did the City have proper cause to give the Grievant, Michael Detert, a three-day
for an incident that occurred on May 9, 1998? If not, what is the appropriate remedy?
The Grievant, Michael Detert, has worked for the City for 18 years, with 17 years in
Division. His job description is that of a Caretaker II. This grievance is about a three-day
he received for an incident that occurred on May 9, 1998, when he had volunteered for
a Saturday to paint one of the City's two pools. Employees paint one pool every other year.
It is a
major project and must be done when weather conditions allow. The Grievant has
participated in this
project several times in the past.
There are two foremen in the Parks Division. One is Timothy Klima, who has been
City for 18 years and a foreman for the last three years. He was a bargaining unit member
becoming the foreman and was the Union president for three years. Klima has known Detert
many years, as they started working for the City about the same time. The other foreman is
Rosenthal. Klima handles the trees, grass, shrubs, flowers, or the green end of the parks,
Rosenthal handles the construction projects, such as playground installations. Both of them
Detert, depending on the particular work assignment.
The City has a safety committee made up of five bargaining unit members and four
management members. The committee establishes safety policies, issues a safety manual and
the safety program in the City. Part of the safety manual includes the following policy
The wearing of sandals or canvas sneakers (tennis shoes) in City work
areas is prohibited.
Wear sturdy comfortable work shoes/boots.
Foot protection is a sound investment for any employee not only for work
activities, but for
many off-the-job tasks as well. Following are some of the activities in which safety shoes
should be worn:
1. Engineering Office personnel while on the job site of any public service
2. All Street Maintenance Division personnel while on the job site of street
storm drain maintenance, curb and gutter construction or other public service maintenance
3. Park Department personnel while on the job site of any park construction project,
during ground maintenance activities involving use of mowers, trimmers, and other power
4. Refuse Collection Division personnel working collection routes or in the disposal
5. Sewage Treatment Plant maintenance personnel and plant operators when assisting
teardown of machinery.
6. All Construction Division personnel while on the job site of construction and
7. All Electric Division personnel while on the job site of installation and
street lighting facilities.
8. All Electric Division personnel while on the job site of installation and
traffic control facilities.
9. All Water Department personnel while on the job site for construction and
of water transmission facilities.
10. All other personnel working near construction equipment.
11. All personnel performing repair shop tasks.
The Grievant received a copy of the safety handbook in November of 1993 and
acknowledgement of its receipt.
The Grievant was previously warned about failing to wear work boots. Klima gave
verbal warning on Friday, September 23, 1997, when the Grievant came to work wearing a
loafer type of shoe. Klima told the Grievant that he was expected to be wearing a sturdy
when he came back to work the following Monday. The Grievant asked him to put the
writing, and Klima wrote it up. This warning was not grieved or taken up to the safety
Klima's notes show his version of the events of May 9, 1998, and are worth
After going through the extra board I had 5 employees assigned to work overtime to
due to good weather conditions on this Saturday. 2 employees came in at 7:00 a.m. to
vacuum the bottom of the pool and mix paint and three were to come in ready to work at
9:00 a.m. I arrived at the pool at 9:10 a.m. to find that Mike B. and Gary M. had the paint
all mixed and the pool cleaned and ready to paint. At 9:15 a.m. Bruce B. arrived and at
a.m. Bev K. and Mike D. arrived. As Mike D. walked on to the pool deck I observed that
he was wearing tennis shoes. I said "Mike what are you doing in tennis shoes." He replied
"I'm not going to get paint all over my work shoes." I then said "You know you can't work
in tennis shoes." He replied "Fine I'll go home." As he walked past me toward the pump
house he stated to me "You are not my mother and you don't tell me what to do!" I replied
as I walked behind him into the pump house "Your right I'm not your mother I'm your
supervisor, and I will tell
you what to wear." As Mike D. walked in front of me in the pump house I heard
"Fuck you." I then gave Mike D. a ride in 315 back to LSP during which not a word was
Klima had no idea whether the Grievant's shoes were in the truck, his locker, the
shop or his
home. Klima testified that he told the Grievant to get his work boots, and he would have
to go him and get them and return to the job. The Grievant did not come back to work on
at all. Klima did not tell him to take the rest of the day off. The Grievant asked for pay for
he spent working on Saturday (about 30 minutes) but was not paid for any time on that
The other employees who stayed and worked that day were also paid for the time spent
and from the job site, as well as their time on the job itself.
Bev Kindschuh was working on the pool project and told Klima that he gave Detert a
out of this, that he could have gotten his shoes. Klima testified that she seemed surprised
would leave the job site.
The Grievant noted that when Dick Davies was the foreman, the Grievant wore tennis
and shorts to paint the pool. At times, employees were allowed to take their shirts off while
the pools. Davies retired in 1992. Klima was not aware that employees wore tennis shoes
in the past
to paint the pools. Employees have been asked to wear shorts and tennis shoes when
The Grievant testified that Klima objected to his sweat pants as well as his tennis
that Klima did not tell him that he wanted him to return to work. The conversation between
had been loud and heated. The Grievant told Klima that they had problems with the marring
soles on the surface of the pools, that the work boots made black scuff marks, which had to
cleaned off. The Grievant stated he was angry when he told Klima that he was not his
Grievant said Klima told him to go home, and that there was no option to get his work boots
return to work that day.
The following Monday, Klima met with his supervisor, the Superintendent of Parks,
Kiefer, and Rosenthal, the other foreman. Rosenthal told Klima about another incident on
1998, which ended with a verbal warning being given to the Grievant for work performance.
Rosenthal has been a foreman in the parks for more than five years. On May 4,
parks employees were installing a playground system at Lakeside Park. There were several
six timbers, eight feet long, inside a snow fence, which was four feet high. Rosenthal
Detert to open up the fence and pull the timbers out of that area so employees could start
on them. The employees had to take half-inch rods or stakes out of the timbers. Detert
the fenced area and started picking up the timbers and throwing them out over the top of the
fence with the rods still intact. Rosenthal told
Detert he wanted the timbers to be pulled out. Rosenthal was concerned that Detert
himself with one of the rods in the timbers, or that they could fall backwards or hit
timbers weighed about 75 pounds.
Rosenthal walked up to Detert and told him that it was not the proper procedure
could hurt himself. Detert replied that Rosenthal was not his supervisor, that he was his own
and he was going to do it his way whether or not Rosenthal liked it. Rosenthal told Detert
was his supervisor. Detert finished getting the timbers out of the fenced area by handing
the fence to another employee, Jim Zahn, but did not open the fence as Rosenthal had asked.
then walked off toward the park office which was about 300 feet away and returned to the
about 15 or 20 minutes later.
Detert testified that Rosenthal never told him to open the fence and drag the timbers
Detert stated that employees had never dragged the timbers out before.
The warning given to Detert regarding the timbers was a verbal warning. Rosenthal
it on May 5 but did not give it to Detert until May 8, 1998. It states:
This is a verbal warning in ref. to May 4 disagreement between you & myself.
Mike, I am
able to & will inform you on what, where & how I want things to be done on any
job that I
am supervising. I also have the right to allow you to use your own judgment on the jobs we
do. First the method you used to move the timber out of the fence area was improper and
could have injured yourself or someone else. The second thing is yes you are your own
person but when you are here & working you will follow proper working procedures.
the number of times you walk off the job sites for unknown reasons will stop. On Friday I
had to talk to you about the lunch 7:30 "break" you were on and this is not the first we
noticed you abusing the break time or dead time during work. You will also take
responsibility on the job site and not tell employees that I am not going to because . . . The
warning is in ref to your job performance. The next time may be time off do to progressive
Rosenthal had been concerned with Detert taking unusual breaks, sometimes 15
hour without saying where he was going. He told Detert a few days earlier that he should
eating at 7:30 a.m., that the breaks are at 9:00 a.m. and noon. Detert had been given a
on October 24, 1997, and a written warning on November 7, 1997, by Rosenthal. He did
either the verbal or written warning about his breaks. He has a condition called Raynaud's
syndrome, which is a disorder of the circulatory system that affects blood circulation to
toes. The Grievant went to a doctor in November of 1997 because his hands were going
turning white. His doctor has told him to minimize his exposure to the cold during the
wear comfortable mittens when outdoors. The Grievant gave the doctor's letter regarding his
condition and treatment to the City.
When Klima and Rosenthal and Kiefer met on Monday, May 11, 1998, the prior
measure was fresh in Rosenthal's mind since it had all happened within a few days. The
team agreed that the Grievant's conduct showed a hostile approach to supervision and that he
did not need to follow instructions. Klima was concerned about safety violations,
and work performance. He noted that the crew painting the pool did not accomplish as much
wanted to because they were short one person.
The disciplinary notice given to the Grievant also referred him to the Employee
Program for work conflict and anger management. The notice stated that the referral to EAP
mandatory, and the Grievant complied with this aspect of the notice.
The Human Resources Director for the City, Ben Mercer, reviewed the Grievant's
noted that he has a fairly lengthy history of disciplinary actions. In the spring 1996, the
given a verbal warning for a late arrival to work on April 16, 1996, and two written
being late on April 18th and 24th, 1996. When he showed
up late on May 3, 1996 the fourth time
in three weeks he was given a one-day suspension.
Mercer noted that the Grievant was given a three-day suspension later that spring,
called in sick on May 29, 1996. The City considered this late notice to be the fifth time he
notified the City after his normal starting time that he was late. This suspension was grieved
parties entered into a non-precedential settlement of the grievance, which reduced the penalty
one-day suspension. On July 22, 1997, the Grievant was given a written warning for using a
vehicle for his own personal use.
Mercer testified that the Grievant's insubordination was the primary issue that the
to address in the May 1998 pool incident. There was also the safety issue, the prior warning
improper shoes, as well as the issue of the Grievant leaving a job and not coming back to
THE PARTIES' POSITIONS
The City states that it gave the Grievant a three-day suspension for violating a safety
insubordination for refusing to follow work directives, engaging in self-help by walking off
and poor work performance by not completing his assigned task. The City asserts that the
combination of these factors and the seriousness of the Grievant's behavior show that the
was warranted. Management may use its discretion to impose discipline ranging from a
reprimand to discharge, depending on the seriousness of the offense.
The Grievant received a copy of the work rule that prohibits the wearing of sandals
sneakers or tennis shoes. The City notes that he had been warned before about the proper
The City further points out that the Grievant admitted being insubordinate
to Klima and saying that he wasn't his mother. That was clearly an example of
the Grievant questioning the supervisor's authority. His statement you don't tell me
what to do
is a perfect example of an employee overtly refusing to take direction from a supervisor,
an attitude of defiance and insolence. The Grievant's behavior undermines the supervisor's
and his conduct cannot be condoned.
There is little doubt that the Grievant's work performance was deficient where he
perform the task assigned. Finally, he engaged in self-help by walking off the job. While
testified that Klima told him to go home, his testimony is not credible. Kindschuh overheard
conversation and she told Klima that he had given Detert an out, that he could have gotten
Klima never ordered the Grievant off the work site. The Grievant left his fellow workers
work to do, and the City did not accomplish its goal of painting the pool in a timely fashion.
The City cites arbitrators who have held that insubordination is a serious offense. It
submits that other employees knew of the work boot rule and complied with it, and that the
applied the rule in an evenhanded manner.
The totality of the Grievant's employment history supports the decision to suspend the
Grievant for three days, the City argues. Detert has a lengthy history of disciplinary actions,
five instances of reporting late to work, using a City truck for personal use, improper foot
extending break time improperly. The Grievant was issued a verbal warning just a few days
this suspension. The events show a pattern of insubordination by the Grievant. He defied
Rosenthal's order regarding the timbers and stated that Rosenthal was not his supervisor.
than a week later, he told Klima that he was not his mother. The common theme is the
to follow supervisors' directions. The close proximity of insubordinate behavior on May
4th to the
insubordinate behavior of May 9th warrants time off. Rosenthal warned
Detert that he could be
subjected to more severe discipline.
The City submits that the arbitrator should not substitute her judgment for the City's
does not agree with management in its disciplinary decision. It is the function of
decide what disciplinary action will be taken. Unless the discipline is discriminatory, unfair
arbitrary and capricious, the arbitrator should not substitute her personal judgment.
The Union points out that under Article XXXI, written reprimands are not considered
for future disciplinary action 12 months after they are given, and verbal reprimands are used
supervisors in accordance with each department's own practice. However, verbal reprimands
become part of an employee's personnel file and are an informal step given before the City
more formal discipline, such as written warnings or suspensions.
The Union finds the three-day suspension given to Detert to be unusual in that
verbal warning immediately preceded the suspension, without any subsequent written
Detert got a three-day suspension for an alleged second incident of insubordination within
of the first incident which resulted in only a verbal warning. The written warning that
gave notice of harsher discipline in the future was given six months earlier for alleged
totally different City policies.
The Union is concerned that the normal disciplinary process function in a way that is
understandable by all employees by virtue of its being predictable. Employees should know
normal and reasonable consequences of receiving any warning and what further penalties
if a reprimand were given to them for the same reason. There is no way the discipline
can be considered progressive, and at the most, he should have been given a written
The Union points out that Rosenthal's warning was a verbal warning, and the events
in that incident are not the subject of this arbitration and Detert cannot receive any additional
for that incident. Klima was not aware of the prior verbal warning during the pool incident
filled in by Rosenthal later. Klima later determined that the pool incident in conjunction with
occurred the previous week justified a three-day suspension for the pool incident. All three
Department supervisors decided that Detert should be suspended for a variety of reasons, and
it a progressive disciplinary action even though it went from a verbal warning to a
an intervening written reprimand.
Regarding the pool incident, the Union notes that both parties agree that Detert
he would go home after being told he could not work in tennis shoes. There is no testimony
Detert was told to return to the pool after getting the proper shoes, or that he was expected
a certain time. Klima had the chance to tell him what the City expected when he drove him
the shop. If Klima wanted Detert to come back to work, he should have said so, in the same
way he told him he couldn't work in his tennis shoes.
There is an additional issue that of the pay for the time that Detert punched
until the time
he punched out. This time would have been at least a half hour of time for all other
the City did not pay him because they did not consider him to be working. However, all of
employees were considered to be working from the time that they punched the time clock at
of the assignment until they punched out after returning when the day was done. The Union
that he should have been paid for that half hour. The Union also believed that the record
he was sent home by management, rather than returning by his own choice.
The Union also submits that both parties should share the blame, that Klima started
argument between him and Detert by reacting angrily to Detert's shoes. Klima began
yelling, and to
put the entire blame on Detert is unfair. The Union agrees that Detert needs to control how
to his supervisors and their instructions, and that he will have to learn to listen
and follow instructions. However, the outcome of this case should not ignore
mentioned earlier or fail to recognize that both Detert and Klima participated in the
The City disagrees that there is any procedural question, and it included all of the
disciplinary actions taken so that the arbitrator could review the cumulative work history of
Grievant. The City states that there is not lock-step system that requires it to move in a
in the disciplinary process, and the Union admits that progressive discipline normally
includes a series
of warnings from verbal through termination. The timing of the Grievant's infraction and his
history warrant a stronger form of discipline than the written reprimand the Union suggests.
cumulative record is a valid factor in considering a more severe form of discipline.
was placed on notice that the next time he was insubordinate, he would receive time off, and
insubordinate less than one week later.
The City further disagrees that Detert was sent home. He told Klima that he would
after Klima told him he couldn't wear tennis shoes to work. The City also disagrees that
not allowed to work. It was Detert's decision not to come back to work. Klima told him to
shoes, and he would not have done so if he had not expected him to come back to work.
there is no proof that Klima reacted angrily or that Klima yelled, as the Union claimed. The
if the verbal warning did not have the desired effect of improving Detert's behavior
in less than one
week, does the Union really believe that a written warning will have some positive impact?
suspension is the Grievant's wake-up call to work with supervisors, not against them.
The Union replies that it does not see the lack of work shoes as supporting
by itself. Also, the issue of Detert leaving work and not returning is not insubordinate since
no evidence that Klima told Detert to return to the pool. The City did not prove that it gave
instructions to return to work, and therefore he cannot be considered insubordinate on this
record also shows that the exchange between them at the pool was heated on both sides.
The Union also notes that the City spends a lot of time defining the concept of just
narrowing it from the seven classic tests to a rather brief two-question test. But the City
mention of the procedural due process arguments, leaving it to do whatever it feels is
And while the City urges the arbitrator to not substitute her own judgment, it requires an
to determine which party has the most credible position.
Under Article XXVII, the City may discipline or discharge employees for proper
Article XXXI states that written reprimands or warnings are not to be considered valid for
disciplinary action 12 months after they are given. Whatever is outside of the
one-year period is outside of it for this proceeding. If the parties agreed that they
could not consider
written warnings after a year passed, then those warnings cannot be considered in this
Therefore, the written warnings in April of 1996 cannot be part of the picture, but
else is either a suspension or within the 12-month period.
The Union makes a good point that Klima could have been clear about his
could have told Detert that he expected him to come back to work once he got his shoes.
the failure to clearly delineate those expectations is not fatal to the City's disciplinary action
insubordination, because the insubordinate act had already occurred.
I disagree that the record shows that the Grievant was sent home it appears
that he made
that choice on his own. While the evidence is somewhat sketchy in this matter, and Klima
do not agree on this very point, Kindschuh was present during the testimony and no one
have her dispute Klima's testimony in this regard.
There is little dispute between the parties that some discipline was warranted. The
acknowledges that the Grievant has to learn to listen to his supervisors and respond to them
appropriate manner. The Grievant had been on a track of defying them openly.
Once it has been determined that there is just or proper cause for discipline,
hesitate to second-guess the degree of discipline imposed. An arbitrator should not substitute
her judgment for that of management unless the penalty is excessive, unreasonable, arbitrary,
capricious, or management has abused its discretion.
The real dispute in this case is whether the penalty was excessive. It is somewhat
an employer to jump from a verbal reprimand to a three-day suspension over a similar
However, the fact that the Grievant was insubordinate less than a week after he had been
shows that he was not heeding the lesson of the prior warning, and that it was going to take
drastic action to get his attention. Also of particular note is the fact that the Grievant was
warned about not wearing the proper shoes, in September of 1997. That warning
less than a year
before this incident should have been fresh in his memory. Finally, the Grievant
was piling up a
number of warnings and suspensions. It is proper to look at the whole record, except with
exceptions noted above for contractual reasons.
One cannot say that discipline was clearly excessive under all the
circumstances. The issue
of the one-half hour of overtime does not weigh heavily in this matter. While the Arbitrator
that the City should have paid the Grievant for time going to and from work if it pays other
employees for such time, the amount of time involved is too small to make much difference
The grievance is denied and dismissed.
Dated at Elkhorn, Wisconsin this 23rd day of December, 1998.
Karen J. Mawhinney, Arbitrator