BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
ST. FRANCIS HOME EMPLOYEES,
LOCAL UNION NO. 1760-A, AFSCME,
ST. FRANCIS HOME, INC.
(Tammy Buck Discharge Grievance)
Mr. James Mattson, Staff Representative, AFSCME, Council
40, appeared on behalf of the Union.
Mr. William Sample, Consultant, Labor Relations Consultants,
Inc., appeared on behalf of the Employer.
The above-captioned parties, hereinafter the Union and the Employer, respectively,
to a collective bargaining agreement which provides for final and binding arbitration of
Pursuant to a request for arbitration, the Wisconsin Employment Relations Commission
the undersigned to decide a grievance. A hearing, which was not transcribed, was held on
11, 1998, in Superior, Wisconsin. After the hearing the parties filed briefs and reply briefs,
whereupon the record was closed on January 26, 1999. Based on the entire record, the
issues the following Award.
The parties were unable to stipulate to the issue to be decided in this case. Having
the record and arguments in this case, the undersigned finds the following issue appropriate
purposes of deciding this dispute:
Did the Employer discharge the grievant for just cause? If not,
what is the appropriate remedy?
The parties' 1996-1999 collective bargaining agreement contains the following
ARTICLE 10 WORK DAY WORK
. . .
Section 6. All called-in employees are required to
work the position called-in for. The least
senior employee on duty will be required to stay for overtime at the discretion of the
all alternatives are exhausted and no replacement has been found. On a case by case basis
be rotated, with union agreement, with the understanding that the employer will not be left
adequate staff under any circumstances.
. . .
ARTICLE 16 DISCIPLINE
Section 1. The parties recognize the authority of the
Employer to discipline, discharge or take
other appropriate disciplinary action against employees for just cause.
Section 2. The following shall
be the sequence of disciplinary action:
a). Oral reprimand;
b). Written reprimand;
c). Written reprimand
with a one day suspension as scheduled by the Employer, which
may be waived by the Employer;
d). Written reprimand
with a one week suspension as scheduled by the Employer;
The above sequence of disciplinary action
shall not apply in cases where the infraction is
considered just cause for immediate suspension or discharge.
The following lists some of the common infractions and their
disciplinary actions. In general, any
conduct which exhibits disregard for the goals of St. Francis Home, Inc. or the health and
of its residents, may be grounds for immediate dismissal. This list does not
contain, of course, all
actions that may call for disciplinary measures, but it is intended to be a guide, helping you
to avoid activities that are opposed to the goals of St. Francis Home, Inc.
(Emphasis in original).
Infractions for which you may be dismissed
immediately include, but are not limited to:
1. Failure to obey legitimate directions
from a person in authority.
. . .
St. Francis Home, Inc., operates two separate nursing homes in Superior, Wisconsin:
Francis Home in the Park and St. Francis Home-South. St. Francis Home in the Park
Park) is a conventional nursing home and St. Francis Home-South (hereinafter South), a
facility which provides care to Alzheimer Dementia and developmentally disabled
facilities are licensed by the State of Wisconsin. Both homes are covered under the same
bargaining agreement with the Union.
In early 1997, St. Francis Home-South repeatedly failed to pass state inspection and
for substandard quality of care. The Home had to pay substantial civil fines as a
matters were subsequently reported in various newspapers including the Milwaukee
In May, 1997, the Home's owner responded to the foregoing by replacing the top
management at St. Francis Home-South.
When the new administration took over at South, one of the matters which it
South's staffing level. One of the deficiencies which South was cited for was
minimum staffing requirements.
The Employer uses overtime to maintain minimum staffing levels and ensure that
positions are filled. The Employer initially attempts to fill vacancies via volunteers. This
overtime, known as voluntary overtime, is just that; employes have a choice whether to work
the Employer cannot fill a vacancy with a volunteer or some other replacement employe, the
Employer requires the least senior employe on duty to stay over and
work overtime. This type of overtime, known as mandatory overtime, is just that;
employes do not
have a choice whether to work it. (Note: An exception to this at Park will be noted later).
Mandatory overtime is specifically authorized by the labor agreement. The record indicates
parties have negotiated a series of agreements dealing with the pay employes receive for
mandatory overtime and when employes can be mandated to work it. The details of those
are not pertinent here. The Employer uses mandatory overtime only as a last resort and
rotate it among employes so that a single person does not have to work an inordinate amount
same. Historically, workers on the day shift are mandated to stay over into the night shift
workers on the night shift are mandated to stay over into the day shift.
The record indicates that under South's prior administration, employes who were
mandatory overtime and who refused to work it (i.e. the mandatory overtime) received a
warning for same. That was the extent of the discipline they received for refusing to work
overtime. South's new management team decided to change this because of perceived
abuse. Specifically, South's new management team decided that henceforth when employes
directed to work mandatory overtime, they had to work it; if they refused to do so, they
fired. After management made this decision, South's new Director of Nursing, Pat Willie,
following memo notifying staff of same:
To: All Staff
Re: Refusal of Mandatory
July 8, 1997
According to the contract,
Article 10, section 5, (sic) Mandatory Overtime is not optional!
Effective this date, refusal can result in termination. At supervisor discretion a refusal may
be acceptable for that instance. However, continued refusal may not be and may be subject
to termination. The home has a responsibility to have, at the very least, minimum staffing to
meet the needs of the residents.
I am also aware that you have
other commitments, but arrangements can be made in
advance for the time you may be required to stay. I'm hiring staff as the appropriate
applications come in. We also need to send a positive message to the community, especially
now that we have been cleared of our deficiencies by the state. With every-one continuing to
work together and patience we can get over this hurdle also.
To provide better coverage for
the PM shift, any-one interested in 12 hour shifts (7 am -
7 pm or 7 pm 7 am) please contact the cottage secretary. Overtime would be paid
for the 4
extra hours worked.
Pat Willie, DON
This memo put South's employes on notice that henceforth if they refused to work
overtime when they were directed to do so, they could be terminated. The memo referenced
was discussed at several labor-management meetings in 1997. It was also discussed at a
labor-management meeting on July 30, 1998. At the meeting just referenced, South's
representatives reiterated that when someone is directed to work mandatory overtime, they
either work the mandatory overtime or find a co-worker who will work it for them (i.e. find
replacement). One of the people who attended the July 30, 1998 labor-management meeting
The record indicates that mandatory overtime is handled differently at South than it is
At South, as was just noted, employes who are directed to work mandatory overtime cannot
it. At Park, employes who are directed to work mandatory overtime can apparently reject it
Grievant Tammy Buck was hired as a CNA in August, 1995 and was employed in
capacity at St. Francis Home-South until her discharge on August 4, 1998. Her discipline is
subject of this case. She was discharged for refusing to work mandatory overtime.
Prior to the instance involved herein, Buck had been directed just once to work
overtime. That instance occurred in April, 1998. She worked that mandatory overtime as
For most of her employment, Buck worked the night shift. In May, 1998, Buck
working days. In July, 1998, Buck worked a substantial amount of voluntary overtime
hours). Sometimes when she worked voluntary overtime, Buck worked two consecutive
Thursday, July 30, 1998 1/ Buck worked a regular eight-hour shift.
1/ All dates hereinafter
refer to 1998.
On Friday, July 31, Buck took a sick day due to a toothache. Saturday, August 1 and
August 2 were her scheduled days off. She worked a regular eight-hour shift on Monday,
On Tuesday, August 4, the Employer decided that one more employe needed to be
that day's 3:15 to 11:15 p.m. shift to maintain a minimum staffing level. Specifically, the
decided that it needed nine employes on that shift and just eight employes were available.
was short one employe. Unit Secretary Priscilla Strang initially went through the voluntary
list, but she could not get anyone to work voluntary overtime. Since no volunteers were
the Employer decided that someone from the day shift would have to be mandated to work
the second shift as well (i.e. another eight hours). Buck's name was next on the mandatory
list, so she was selected to work the mandatory overtime.
That day about 11 a.m., Nurse Manager Missy Stouffer went to Buck and told her
she finished her day shift, she would be required to stay and work through the end of the
Stouffer also told Buck that the reason she (Buck) was being directed to stay over and work
second shift as mandatory overtime was because it was her turn to do so. Upon hearing this,
told Stouffer that she was too tired (to do so) and would not stay over. Stouffer responded
Buck that if she (Buck) would not stay, then she had to get someone else to work the
overtime in her place.
Shortly thereafter, Strang happened to see Buck in the hallway. Strang testified that
told her that she was not going to stay for the mandatory overtime and that she was not
going to play
the game. Buck denied making this statement. Strang later told Stouffer that Buck had told
was not going to work mandatory overtime.
Buck testified that after being directed by Stouffer to work the mandatory overtime,
several of her co-workers if they would be willing to work the mandated second shift for her.
volunteered to do so.
About 1 p.m., Stouffer told Buck again that she was being directed to work the
as mandatory overtime. In response, Buck told Stouffer again that she was too tired to stay
would not work the mandated overtime. Stouffer then asked Buck if she had gotten anyone
the second shift as her replacement and Buck replied in the negative.
Stouffer then contacted Director of Nursing Pat Willie and told her that it was Buck's
to work the mandatory overtime and that Buck was refusing to do it (i.e. work the mandatory
About 2:30 p.m., Willie called the local union vice-president at South, Deb Maeder,
her to come to her (Willie's) office for a meeting. Willie told Maeder in this phone call that
Buck's turn to work mandatory overtime and that Buck was refusing to work it. Willie told
to talk to Buck about it and advise her that if she did not work the mandatory overtime, she
could be fired.
Maeder then went and found Buck and told her about Willie's phone call. Maeder
that unless she stayed over and worked the mandatory overtime, she was going to be fired.
responded that she was too tired to stay over.
Maeder and Buck then went and found local union president Cathy Moniasque.
Moniasque that Buck had been mandated to stay and work the next shift as overtime, and
was not going to do it. Moniasque responded to this by telling Maeder and Buck that if
Buck did not
stay over, the Employer would fire her.
Moniasque, Maeder and Buck then went into Willie's office for a meeting with
understood going into this meeting that she could be fired for not working mandatory
When this meeting started, Willie had a document entitled "Progressive Disciplinary Record"
completed and sitting on her desk. This meeting lasted about 15 minutes. Buck did little
this meeting. Moniasque did most of the talking for the Union.
At this meeting, Willie told Buck that she had to stay over and work the second shift
mandatory overtime. Buck replied that she would not do so because she was too tired. Buck
this in a matter-of-fact fashion and did not elaborate any further. Specifically, she did not
say she was
exhausted, that it would be unsafe for her to stay over, that she had a toothache, or that she
care obligations at home. Buck was not loud, belligerent or confrontational during the
Willie testified that Buck did not appear to her to be exhausted.
Also during the course of this meeting, Moniasque proposed a number of alternatives
which did not involve firing Buck. She first noted that the Employer's mandatory overtime
was different at Park than at South. Specifically, she noted that when an employe at Park is
to work overtime, they can reject it once. Moniasque proposed that Park's more lenient
toward rejecting mandatory overtime be applied at South. Willie rejected this proposal. In
she noted that mandatory overtime at South had been discussed just one week earlier at a
management meeting, and that management representatives had reiterated at that time that
person was mandated to work overtime at South, they either had to work it or find their own
replacement. Next, Moniasque proposed that Buck, who had previously received two
absenteeism, receive another written warning and a one-day suspension. Willie responded
that in her
view, that proposed discipline
was inappropriate because what Buck had just done constituted insubordination. Next,
proposed that an LPN be mandated for the overtime rather than a CNA. Willie responded
that in her
view, an LPN was not needed on the second shift.
Willie testified that at the end of the meeting, she decided to fire Buck for
refusing to work the mandatory overtime. She then handed Buck the document entitled
Disciplinary Record" which was sitting on her desk. Willie testified that the reason she had
document partially completed at the start of the meeting was that it was her regular standard
operating procedure for such a meeting.
The record indicates that since the Employer posted its July 8, 1997 memo regarding
mandatory overtime, three employes other than Buck have (initially) refused to work
overtime. In each instance, Willie met with the employe who was refusing to work
overtime and told them that they either had to work the mandatory overtime or find a
and that if they did not, they would be fired. Afterwards, two of the employes changed their
and worked the mandatory overtime. The other employe found a replacement to work it (i.e.
mandatory overtime) for them. Thus, in all three instances prior to Buck where the employe
refused to work mandatory overtime, the employe either ultimately worked the mandatory
as directed or found a replacement to work it for them. Willie testified that in all three
threw away the disciplinary notice which she had prepared in advance.
Willie also testified that had Buck either worked the mandatory overtime as directed
her own replacement to work it for her, she (Buck) would not have been fired.
The record indicates that after Buck refused to work the mandatory overtime and was
another employe was mandated to work the overtime. That employe performed the
overtime as directed.
POSITIONS OF THE PARTIES
The Union's position is that the Employer did not have just cause to discharge the
It makes the following arguments to support this contention.
First, the Union argues that Buck was not insubordinate because she was not
or antagonistic toward management when she refused to stay over. She knew the seriousness
she was doing and the possible consequences. The Union also notes that she tried, albeit
unsuccessfully, to get a replacement to work the second shift for her. In the Union's view,
establish that she was not trying to be insubordinate when she refused to work the mandatory
The Union argues in the alternative that even if Buck's refusal to work the mandatory
overtime was insubordination, there are mitigating circumstances here which should excuse
actions. The first was her physical condition on the day in question. The Union notes in
that the grievant clearly told management representatives that she was too tired to work an
eight hour shift. According to the Union, her testimony establishes that Buck was physically
to stay and work another eight hour shift. The Union submits that employes in a nursing
be physically able to provide proper care for the residents. Said another way, they certainly
not put the residents in jeopardy by working when they are physically exhausted. The Union
that on the day in question, the grievant's physical fatigue and exhaustion prevented her from
providing quality care for another eight hours. In the Union's view, the grievant acted very
responsibly and exercised good judgment by knowing her physical limits and declining to
Another mitigating circumstance cited by the Union is the fact that the grievant often
overtime (albeit voluntary overtime). As the Union sees it, this establishes that the grievant
prone to avoiding working extra hours. The Union characterizes it as ironic that the grievant
fired for refusing to work overtime when she worked many hours of overtime (albeit not the
hours which the Employer wanted her to work on August 4, 1998).
Third, the Union notes that mandatory overtime is handled differently at Park than at
Specifically, it avers that Park employes are allowed one opportunity to refuse mandatory
while South employes are not allowed to refuse any mandatory overtime. The Union
since these different mandatory overtime standards exist at the two Homes, the Employer is
applying a uniform standard. According to the Union, this establishes that the grievant was
unfairly by the Employer and was subjected to disparate treatment.
Finally, the Union argues that by discharging the grievant, the Employer did not
progressive discipline as it should have. It notes in this regard that prior to the incident
the grievant had only received two written warnings. The Union implies that if discipline
warranted here, it should have been less than a discharge. The Union views discharge in this
harsh, unreasonable and excessive. The Union submits that where employers fail to follow
progressive discipline and impose excessive discipline, arbitrators have not hesitated to
discipline imposed. It asks the arbitrator to do likewise here. The Union therefore asks that
grievance be sustained, the discharge overturned, and Buck made whole for lost wages and
The Employer's position is that it had just cause to discharge the grievant. It makes
following arguments to support this contention.
First, the Employer contends that Buck was insubordinate on August 4, 1998 when
refused directives from two supervisors to work mandatory overtime. According to the
two supervisors gave Buck a legitimate work order to work mandatory overtime which she
have followed. The Employer notes that Article 10, Section 6 specifically gives it the right
employes work mandatory overtime. The Employer avers that the grievant was aware of
was even told by the union's president and vice-president that she had to work mandatory
and if she did not, she would be fired.
Next, the Employer argues that none of the Union's defenses have merit. With
regard to the
defense that Willie had her mind made up to discharge Buck before the meeting started since
already had the disciplinary paperwork completed, the Employer notes that that was Willie's
operating procedure for disciplinary meetings. It also notes that Willie testified that had
changed her mind at that meeting and decided to work the mandatory overtime, then she
thrown the (disciplinary) notice away and Buck would not have been fired. With regard to
defense that Buck worked a lot of voluntary overtime, the Employer acknowledges same but
it is irrelevant because the overtime involved here was mandatory overtime, not voluntary
With regard to the defense that the grievant was tired/physically exhausted, the Employer
acknowledges that the grievant was no doubt tired at the end of her shift on the day in
Employer opines that most employes are tired after completing an eight-hour shift. The
submits however that if all an employe had to do to get out of mandatory overtime was
they were too tired to work it (as Buck did), that would effectively eliminate the Employer's
to require employes to work mandatory overtime. The Employer also calls the arbitrator's
to the fact that the grievant was off work for three straight days (Friday, Saturday and
one work day before she was directed to work the mandatory overtime in question. With
the defense that mandatory overtime is handled differently at Park than at South, the
believes this argument misses the mark because only South's policy is in issue here. The
stresses that it is treating all South employes uniformly regarding mandatory overtime. With
to the defense that an LPN should have been mandated rather than a CNA, the Employer
notes that determining the level of staffing is a management right. Aside from that, the
submits that on the day in question, there were already more LPNs working that day than the
level dictated. That being so, the Employer avers that what was needed that day was a
CNA, not an
Finally, with regard to the level of discipline which was imposed, the Employer
discharge was appropriate under the circumstances for the following reasons. First, it cites
16, Section 2, subsection 1 for the premise that that language makes failing to obey a
legitimate directive a cardinal offense warranting immediate discharge. Second, it notes that
discharge is a common penalty for insubordination. It cites several arbitration awards
arbitrators have upheld discharges for insubordination. It submits that the arbitration cases
the Union which are contrary (i.e. where the arbitrators overturned discipline for
all factually distinguishable from the instant case. Third, the Employer argues that the Union
to show that the level of discipline which the Employer imposed here (i.e. discharge) was
discriminatory or constituted disparate treatment. It asserts that the other three instances
employes (initially) refused to work mandatory overtime can be distinguished from Buck's
the grounds that in those three cases, the employes ultimately either worked the mandatory
or got their own replacement. The Employer therefore contends that the grievance should be
and the discipline upheld.
Article 16, Section 1 of the parties' labor agreement contains what is commonly
known as a
"just cause" provision. It provides that the Employer will not discipline an employe without
cause. What happened here is that the grievant was discharged by the Employer. Given this
disciplinary action, the obvious question to be answered here is whether the Employer had
for doing so.
As is normally the case, the term "just cause" is not defined in the parties' labor
While the term is undefined, a widely understood and applied analytical framework has been
developed over the years through the common law of labor arbitration. That analytical
consists of two basic questions: the first is whether the employer proved the employe's
and the second, assuming this showing of wrongdoing is made, is whether the employer
that the discipline which it imposed was justified under all the relevant facts and
As just noted, the first part of a just cause analysis requires that the Employer prove
grievant's misconduct. In the context of this case, there are four separate sub-parts to
call: 1) did the grievant do what she is charged with doing (i.e. refusing to work mandatory
on August 4, 1998); 2) assuming she did, did she understand the directive she was given; 3)
she did, did she understand the consequences for failure to obey and 4) assuming she did,
grievant have any valid defenses for her conduct. In the discussion which follows, these
be addressed in the order just listed.
The first point referenced above is not in issue. There is no question that the
to work mandatory overtime on August 4, 1998. On that date, two supervisors (Stouffer and
directed her to stay over and work the next shift as mandatory overtime, and she told both of
that she would not do so. Although Buck did not specifically say "I refuse to work
overtime", that was what she meant her words to mean and that was how both Stouffer and
interpreted them. That being so, it is held that Buck did what she is charged with doing (i.e.
to work mandatory overtime on August 4, 1998.)
The second point referenced above is also not in issue. In some cases, there is a
about whether the employe understood the work order they were given. That is not the case
What happened here is that both Stouffer and Willie told Buck in plain and understandable
she was to stay over one more shift and work mandatory overtime. Buck understood that.
Moreover, she acknowledged that the two supervisors did not ask her if she wanted to stay
rather, both directed her to do so. Buck therefore understood that she was being directed to
mandatory overtime, not asked if she would work voluntary overtime.
In some disciplinary cases, there is also a question about whether the work directive
was given was a legitimate managerial directive. Here, though, that is not the case. The
this: Article 10, Section 6 specifically gives the Employer the contractual right to have
work mandatory overtime if needed. Since two supervisors gave the grievant a legitimate
that she was to stay over for mandatory overtime, that is what she was to do. It is a cardinal
the workplace that employes are to obey supervisory orders and do what they are told
whether or not they agree with it. 2/ The reason for this is obvious; there can hardly be a
challenge to supervisory authority, and
2/ There are certain
exceptions to this rule but none are applicable here.
hence the Employer's ability to direct the work force, than the refusal to obey a
Thus, the proper course of action is for employes to obey orders they believe are improper
redress through the grievance procedure. Under this "obey now-grieve later" principle, the
should have obeyed management's directive to work the mandatory overtime. Had she done
could have later tested the validity of the Employer's order via the grievance procedure.
by refusing outright to obey management's directive, the grievant invited disciplinary action.
Attention is now turned to the third point referenced above (namely, whether the
understood the consequences of failing to obey management's directive to work
mandatory overtime). The following record evidence convinces me that she understood
consequences. To begin with, all bargaining unit employes were put on notice by Willie's
1997 memo that refusing to work mandatory overtime could henceforth result in termination.
Second, on July 30, 1998, Buck attended a labor-management meeting where the memo just
referenced was discussed. At that meeting, management representatives reiterated that when
someone is directed to work mandatory overtime, they either have to work the mandatory
or find their own replacement to work it (i.e. the mandatory overtime). Third, before Buck
Willie's office for the August 4 meeting, both the local union president and vice-president
in plain terms that she would be fired if she did not work the mandatory overtime as
during that meeting, Willie told Buck the same thing and gave her the opportunity to change
before discipline was imposed. Given the foregoing, it is held that Buck understood that she
be fired for not working mandatory overtime as directed.
Having so found, the focus turns to the fourth point referenced above (namely, does
grievant have any valid defenses for her conduct). The Union asserts that she does and that
the defenses) should excuse or justify her actions.
The Union's first defense is that Buck's physical condition on the day in question
her from working another eight-hour shift. According to the Union, Buck was unable to stay
due to physical fatigue and exhaustion. The problem with this contention is that it is not
by the record evidence. All the evidence shows is that on August 4, Buck told Stouffer and
that she would not stay over because she was too tired. Buck did not elaborate further on
physical condition. Specifically, she did not say she was exhausted or suffering from
Buck did not elaborate on her physical condition on August 4, there is no basis for the
to do so either. That being so, the Union's physical condition defense boils down to the
assertion that she was tired. The undersigned has no reason to dispute that assertion. Most
are tired after they finish working a shift. Be that as it may, I find that being tired, in and of
not a sufficient basis to get out of working mandatory overtime. If it were sufficient, all an
would have to do to get out of working mandatory overtime would be to say they were too
work it. Such an outcome would not be compatible with Article 10, Section 6 which, as
noted, expressly gives the Employer the right to have employes work mandatory overtime.
The Union's second defense can be characterized as its "lots of overtime" theory.
notes that Buck worked many hours of overtime (albeit voluntary overtime). As the Union
this establishes that Buck was not prone to avoiding working extra hours in general, just the
hours on August 4. The flaw with this argument is that it overlooks the critical fact that the
involved on August 4 was mandatory overtime. Under the contract, employes have to work
mandatory overtime; they do not have a choice. There are
no ifs, ands or buts about it. When an employe is mandated for overtime, they have to
work it. The
fact that Buck had historically worked many hours of voluntary overtime does not change this
or entitle her to an exemption.
Another Union defense is that an LPN should have been mandated to work overtime
than a CNA. There are two problems with this contention. First, the level of staffing at the
is a management right. Second, aside from that, the record evidence establishes that on
there were already more LPNs working that day than the staffing level dictated. That being
LPN was simply not needed.
Another Union defense is that mandatory overtime is handled differently at Park than
South. The record indicates that at Park, employes who are directed to work mandatory
can apparently reject it once, whereas at South employes cannot reject it. The record does
indicate why this difference exists. Perhaps it is attributable to South's recent troubles.
the reason, Park's mandatory overtime policy is more lenient than South's. The Union
since the two Homes have different mandatory overtime standards, the grievant was subjected
disparate treatment. This argument is obviously premised on the notion that the two Homes
have identical mandatory overtime policies. If the grievant was a joint employe of both
worked at both Homes, the undersigned could easily accept the premise that Park's
overtime policy was applicable here. However, neither is the case. First, Buck was not an
of both Homes; she was only an employe of South. Her paychecks, which are drawn on the
of "St. Francis Home South", prove this. Second, Buck always worked at South; never at
Given the foregoing, it is South's policies, not Park's policies, that apply to Buck.
South's mandatory overtime policy, not Park's mandatory overtime policy, applies to Buck.
record establishes that since the Willie memo was posted in July, 1997, South has been
mandatory overtime policy uniformly to all employes and not allowing anyone to refuse to
mandatory overtime. That being the case, Buck was not treated differently herein than any
South employe. The Union's disparate treatment argument relative to different mandatory
policies at Park and South is therefore rejected.
The final Union defense is an assertion that Willie decided to discipline Buck before
heard from her. To support this contention, the Union notes that Willie had Buck's
notice partially completed and sitting on her (Willie's) desk at the start of the August 4
agree with the Union that the fact that Willie had prepared a disciplinary notice in advance of
meeting certainly gave the outward appearance that Willie had her mind made up before the
started that she was going to impose discipline and had no interest in listening to Buck's
the incident. However, Willie was not precluded from making a preliminary decision before
meeting started or thinking about what course of action she intended to take based on the
facts as she
knew them before the meeting started.
As a practical matter, most supervisors going into an investigatory meeting with an
thought about the potential courses of action before arriving at such a meeting. In this case,
did not give Buck the disciplinary notice at the start of the meeting or before hearing what
the Union representatives had to say. Instead, Willie gave the disciplinary notice to Buck
Buck had refused her directive to work mandatory overtime and she (Willie) had responded
to all of
Moniasque's alternatives and proposals. Moreover, Willie testified that had Buck changed
during this meeting and decided to work the mandatory overtime, she (Willie) would have
the disciplinary notice away. The undersigned has no reason to dispute her testimony in this
because she did just that in three previous instances. In those instances, Willie had likewise
disciplinary notices for three employes who refused to work mandatory overtime. She threw
disciplinary notices away after the employes either changed their minds and worked the
overtime or got a replacement to work it for them.
Having found none of the Union's defenses persuasive, it is held that the grievant
misconduct by refusing to work mandatory overtime on August 4. That misconduct
The second part of a just cause analysis requires that the Employer establish that the
imposed was appropriate under the relevant facts and circumstances. The relevant facts and
circumstances which are usually considered are the notions of progressive discipline, due
protections and disparate treatment. In this case, the Employer summarily discharged the
Based on the following rationale, I conclude discharge was appropriate here.
First, while Article 16, Section 2 specifies that the normal progressive disciplinary
is for employes to receive warnings and suspensions prior to discharge, that does not mean
discipline must follow this sequence. Some offenses are so serious that an employer does not
to follow progressive discipline. This disciplinary principle is incorporated into this labor
in Article 16, Section 2 wherein it provides that progressive discipline does not apply in
situations. The first such situation listed is "failure to obey legitimate directions from a
authority." That is exactly what the grievant did here (i.e. failed to obey a legitimate direct
from two supervisors to work mandatory overtime). Since the grievant committed an offense
Article 16, Section 2 specifically identifies as warranting summary discharge, the Employer
have to impose progressive discipline here prior to discharge; instead, it could discharge
Second, when Willie filled out the "Progressive Disciplinary Record" for Buck, she
categorize Buck's actions as insubordination. The Union argues that Buck's actions were not
insubordinate because Buck was not confrontational or antagonistic toward either
supervisor when she refused to stay over. I disagree. An employe can commit
either intentionally refusing to obey an order or by otherwise manifesting contempt for
authority. Either one constitutes insubordination. In my view, Buck's refusal to work
overtime can easily be categorized as the first type of insubordination. Employers have a
and justifiable interest with preventing employes from refusing or failing to obey a
directive. Such conduct is obviously detrimental to the working environment since it
authority of supervisors.
Third, nothing in the record indicates that the grievant was subjected to disparate
in terms of the punishment imposed. While three other employes who (initially) refused to
mandatory overtime were not fired, there is a logical and non-discriminatory reason for this.
reason is that those employes ultimately either worked the mandatory overtime as directed or
their own replacement to work it. In contrast, Buck neither worked the mandatory overtime
directed nor got her own replacement to work it.
Finally, it cannot be overlooked that the grievant was a relatively short-term
some disciplinary cases an employe's length of service with an employer serves as a
Here, though, it does not because the grievant's length of service with the Employer is not
Accordingly, then, it is held that the severity of the discipline imposed here (i.e.
was not excessive, disproportionate to the offense, or an abuse of management discretion but
was reasonably related to the seriousness of the grievant's proven misconduct. The
therefore had just cause to discharge the grievant.
Based on the foregoing and the record as a whole, the undersigned enters the
That the Employer discharged the grievant for just cause. Therefore, the grievance is
Dated at Madison, Wisconsin this 10th day of March, 1999.
Raleigh Jones, Arbitrator