BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
WISCONSIN PROFESSIONAL POLICE
EMPLOYEE RELATIONS DIVISION
Mr. Richard Thal, General Counsel, Wisconsin Professional
Police Association, appearing on behalf of the Association.
Mr. Eugene R. Dumas, Deputy Corporation Counsel, Rock
County, appearing on behalf of the County.
The Association and the County named above jointly requested the Wisconsin
Relations Commission appoint the undersigned arbitrator to hear and resolve the grievance of
Eddy. A hearing was held on March 4, 1999, at which time the parties were given the
to present their evidence and arguments. The parties completed filing briefs by April 14,
The issue to be decided is:
Did the Employer have just cause to suspend the Grievant, Susan
Eddy, for three days? If not,
what is the appropriate remedy?
The Grievant, Susan Eddy, has been a juvenile detention officer for nearly two years
County's Juvenile Detention Center. She has not been disciplined except for a three-day
at issue here. The suspension was for insubordination, for events that centered around the
September 12th through the 19th in 1998 (all dates will
refer to the year 1998 unless otherwise stated).
Juveniles were detained in the County's jail until 1994 when the County built the
Detention Center. Fred Atlas is the Superintendent of the facility. E. L. (Mo) Ruffin is a
in charge of programming and is the Grievant's supervisor.
The facility has a secure area and a shelter area. Both the Departments of
Health and Human Services and the respective statutes and administrative codes govern the
Guns are not allowed in the building, although oleoresin capsicum (O.C.) spray and
available to the staff for use on juveniles under limited circumstances. DOC 346.30(7)
use of handcuffs as discipline. The facility keeps the O.C. spray and handcuffs in the central
area, the supervisors' office and the intake office. DOC 346.14 requires the facility to
hot meals a day, and the facility provides lunch and dinner as the hot meals.
The County has concerns about the safety and well being of juveniles. Before the
built in 1994, a juvenile committed suicide while in the jail. The County recently terminated
detention officer who was criminally charged for use of force on a juvenile. Ruffin recalled
handcuffs were used on a juvenile just once in the past seven years. If there are unusual
regarding juveniles, staff members are to fill out behavior reports about them.
On Saturday, September 12th, the Grievant was on duty. Ruffin
not present at the facility
but had designated Paul Parker to be the lead worker because he was the most senior
officer on duty. Steve Stoltz and Jason Russell were also detention officers on duty. Parker
working in the central control area when a juvenile started to cause some trouble. When
are causing trouble, they are sometimes moved to a holding cell as a time out or for control.
The facts regarding the incident of September 12th are not in
dispute. Parker decided that the
juvenile should be handcuffed while being moved to the holding cell. Russell started to get
and met the Grievant in a hallway. He asked if she had handcuffs, and she did. She took
set of handcuffs from her belt and used them to handcuff the juvenile, and the staff moved
him to the
Stoltz was concerned about the incident and talked to Ruffin about it at a later time.
talked with all the staff members involved a few days later, either the following Tuesday or
Wednesday, and wrote up his thoughts which are the following:
Jason said, I told Steve (juvenile's name omitted) was making
noise. Before Steve got there,
Paul had left Central and was in the unit talking to (the juvenile). Jason went in.
that he get handcuffs. He walked into the secure hallway and Sue was walking through.
if she had handcuffs and she said yes. They both went in. Paul asked Steve about moving
holding. He said they prodded Steve into saying yes. Jason said (the juvenile) was doing a
talking/threatening but was not violent. (The juvenile) was against the wall, not doing
pulled the cuffs from the duty belt and applied them. Jason thought policy had been changed
he was gone. Steve had an astonished look on his face but acquiesced. He, (the juvenile)
escorted to holding.
During my conversation with Sue, she said the cuffs were on her
duty belt and she took them
from there. She didn't know what was going on. When she arrived, (the juvenile) was
facing the wall. She placed the cuffs on him and took them off in holding. She was
to include where the cuffs were taken from. Of course, she didn't. Next, she said Jason
them. I explained to her that line staff are not allowed duty belts according to policy and
Her reply was, "I was on a ride along and forgot to take it off." I asked if (the juvenile) was
hostile. She told me not from the time she arrived but no idea about what had happened
Parker conversation. I asked him to justify why he was cuffed.
He said at POSC training, they
were told to do this at all times. I said, "You've been here for over 2 years and I've never
do it, how can you justify your actions when he was being compliant. You forgot about
of force. In this instance the ends did not justify the means." Paul said Steve made the
move (the juvenile). Sue states, both Steve and Paul told her he was going to holding.
stated, "I requested handcuffs." View what Jason says, it was like he prodded Steve. I then
Paul, he was gonna flood the unit. Did you turn the water off.
POSC refers to "Principles of Subject Control" -- a training technique that teaches
force and restraint. The training emphasizes that officers are to follow directions in their
Ruffin testified that when he talked with the Grievant about wearing the duty belt on
September 12th, she told him that she forgot to take it off, but she did not
raise an issue about the
policy on duty belts.
Ruffin was concerned about the Grievant having her own set of handcuffs as well as
liability if something happened to the juvenile. His investigation indicated that handcuffs
necessary, since the juvenile was being compliant with the staff.
The concern over someone using his or her own set of handcuffs is two-fold.
take them from staff. Also, if something happened while a juvenile was cuffed, getting the
could be a problem if only one key opened the cuffs and that key had to be retrieved from
owning the handcuffs. The parties dispute whether or not there is a universal key that opens
of handcuffs including those kept by the facility and those that individuals might
own. The Grievant
believes there is such a universal key on the premises, and that she has been aware of it
started working there. Atlas was not aware of a universal key being available in the facility.
The Grievant was aware that handcuffs were not to be used as discipline but could be
to transport someone. She testified that she was never told that she could not wear
The parties also dispute what is meant by the term "duty belt." There are a couple of
kinds of belts that hold attachments. One belt is an inch and one-half wide, the other is two
and one-quarter inches wide. The Grievant and Association refer to the thinner belt as an
inner belt, one that
can fit between the belt loops on pants. County Exhibit #7, a page from a catalog featuring
equipment and the buckleless belt systems, calls the one and one-half inch wide belt an
belt," and the two and one-quarter inch wide belt an "outer duty belt." The Grievant
wider belt to be a duty belt, not the thinner belt. Atlas is concerned about attachments that
normally put on duty belts. If a juvenile gets hold of something that is attached to the belt, it
be used as a weapon. He is not concerned about radios as an attachment on a belt, as radios
required to be used by staff.
The Grievant has been a police officer for a couple of police departments in
rides along with officers in another city and county and wears a duty belt or a set of
can assist in making arrests when riding along with other officers. She wore the inner
with the handcuffs in the facility for a month before the September 12th
incident. She was wearing
the inner trouser belt with a set of her personal handcuffs attached to the belt on September
also put her radio on the belt. She did not recall Ruffin or any other supervisors saying
about the belt or the handcuffs before the incidents in question.
Atlas did not know of anyone other than the Grievant who wore a duty belt at the
Atlas believed that it was common knowledge that duty belts were not allowed, and that
would ask a supervisor first before wearing such gear. Ruffin never heard the Grievant say
did not understand what he meant by a duty belt. There was no written policy that
detention officers from wearing duty belts, until after the incident that gave rise to this
There is no written policy that prohibits wearing handcuffs in the facility. Not all the rules
policies are in writing. Atlas intends to update the policy and procedure handbook.
The Grievant testified that when she talked with Ruffin about the September
12th incident, he
told her that supervisors were the only ones allowed to wear duty belts, according to policy
procedure. She responded that she was not wearing a duty belt. She testified that she was
about what he meant, because she considered her duty belt to be the wider belt, not the
She was wearing the thinner belt during the conversation with Ruffin. She testified that
gave her a direct order to remove that particular belt.
Ruffin was working the following Saturday, September 19th. He
saw the Grievant wearing
a belt when she came in. Ruffin thought he saw the wider belt, but the thinner belt was also
objectionable to him. He did not see any attachments. The belt caught his attention.
The parties dispute some of the facts regarding September 19th.
Ruffin testified that nearly
an hour after the Grievant came in to the facility, he told her to remove the belt, and she
that she forgot or okay. The Grievant testified that her belt was through the belt loops on
trousers and that she did not believe she was wearing a duty belt. She had her radio attached
belt, and she did not feel that she was in violation of any policy. She also testified that it
absolutely clear to her until later that afternoon that she was not to wear the belt she had on.
The Grievant was going to the shelter area with dinner trays and did not stop in the
area to remove the belt. She continued to take the dinner trays to the shelter area and got
in checking for lice on a juvenile in that area.
Ruffin testified that Officer Frazier told him that the Grievant had been looking
policies to see whether duty belts were prohibited. The Grievant does not dispute that she
her own policy and procedure handbook and found nothing on the subject.
Ruffin was talking outside with some staff members a couple of hours later and asked
the belt. While no one wanted to say that the Grievant had the belt on, Ruffin figured she
had it on.
He found her in the shelter area and told her to take the belt off and that he would watch the
while she got rid of it.
Ruffin wrote the following to Atlas regarding the September 19th
incident with the Grievant:
1500 On the above date, D.O. Eddy entered the staff area for
briefing. I noticed she was
wearing a duty belt which contained her personal handcuffs. I didn't mention anything to her
time. By not saying anything, I was affording Eddy the opportunity to place the duty belt in
locker on her own volition.
1550 Approximately, 45 minutes later, Eddy was passing down
the secure hallway. At this time,
I noticed she was still wearing the duty belt. I entered the secure corridor and told her, "I
earlier in the week that you're not to wear the duty belt on the premises." Eddy's reply was,
1823 Officer Frazier came to the office. I asked if she was still
wearing the duty belt. In a round
about way, I knew she was. Officer Frazier said she was looking through information and
could not find it anywhere stating she couldn't wear it. Furthermore, she was gonna
continue to wear
1825 I entered shelter. I said, "You're not wearing the duty belt
are you." Eddy replied, "I'll
take it off in a bit. My response was, "Take it off now and place it in your locker. I will
kids until you return." At this time, she took it off and proceeded to the staff area.
In the above actions, Officer Eddy was totally insubordinate. I
am requesting stronger action be
taken than a verbal or written reprimand, because insubordination is grounds for termination.
Suspension without pay for a minimum of 3 days would be sufficient. Your attention to the
will be appreciated.
Ruffin based his recommendation for a three-day suspension on the grounds that the
needed discipline stronger than a reprimand because she had ample opportunity to take the
and that the Grievant was showing total disregard for a supervisor. Ruffin considered issues
security, safety and liability to be important in this matter also.
The Grievant put her side of the story in a memo to Atlas also. The memo was
September 20th and states:
I am writing to you with regards to issues concerning
Mo Ruffin. It was brought
to my attention by staff members that Supervisor Ruffin made the following statement: Either
(referring to myself) goes or I go (referring to Supervisor Ruffin). I have also been advised
Supervisor Ruffin stated to others that he asked me to remove my duty belt approximately
and I refused. I would like the chance to reveal my side of the incident that supposedly took
On 09-19-98, Supervisor Ruffin asked me to remove my duty belt as we were exiting Secure
that time I responded, "O.K." but I was in route to Shelter care with the food trays for
I arrived in Shelter care Juvenile inmate (name omitted) asked me to check Juvenile inmate
omitted) head for lice cause (the juvenile) was constantly itching his head. At that time I put
gloves on and proceeded to check (the juvenile) for lice. During the check I found (the
several open scratch marks on his scalp and I did find eggs. I asked Officer Keith Pleasant
check (the juvenile) head and Officer
Pleasant advised me that we should put a hair net on (the
juvenile's) head. Officer Pleasant then took the dirty dinner trays to the kitchen, then
hair nets. While Officer Pleasant was on his way back he stopped in Rec to play basketball
with A-unit girls. Officer Pleasant asked Officer Melanie Meyers to take the hair nets to me
in Shelter care.
When Officer Meyers entered Shelter care she stated, "Here I'm suppose to give these to
is playing basketball with A-unit." I then took a hair net and placed it on (the juvenile's)
Officer Meyers left Shelter care. Officer Pleasant returned to Shelter care, received a phone
Supervisor Ruffin (reason unknown) and he left again not returning. I then sat with Juvenile
(four juvenile names omitted here) (who was in his room, R-7-A). Supervisor Ruffin entered
Program A to ask me if I removed my duty belt. I responded, "No" cause no one was in
to relieve me. Supervisor Ruffin raised his voice and said, "Take that damn thing off now!"
to take it off and I was going to place it under my chair when supervisor Ruffin said, "No, I
here, you go and put that in your locker." I got up, set my clipboard on the counter and
went to my
locker where I left my belt (which is not a duty belt).
On several occasions I have noticed that
Supervisor Ruffin's actions and behaviors are
unprofessional. For examples: Not responding to assistance calls, Using profanities such as
asses, dumb fucks, not getting pussy, Yelling at staff in front of juveniles, I have also had
ask me if Supervisor Ruffin still takes kids down to sallyport to smoke. (Names of two
omitted.) On different occasions I have noticed Supervisor Ruffin had altered the work
09-18-98 which he wrote over Supervisor McNutt handwriting which placed Officer Hatchett
central and on 09-19-98 Supervisor Ruffin informed me I was in Shelter care but according
schedule I was in Central. I feel that Supervisor Ruffin has singled me out by calling other
(Officer Paul Parker and Officer Steve Stoltz) to find out when and if I leave my unit and
I have been gone.
I feel that Supervisor Ruffin's actions are
leading to harassment and I feel that they should
be dealt with appropriately.
Atlas spoke with the Grievant and Ruffin, in the presence of a representative from the
Association, and later determined that the Grievant would be suspended for three days. He
her in writing on October 7th:
On September 12, 1998, you removed a pair of handcuffs from
your "duty belt" and placed them
on a male juvenile. Shift Supervisor Ruffin, per his conversation with you, informed you
belts are not a part of the Juvenile Detention Officer's uniform, and they (duty belts) are not
It was reported that your response was "I was on a ride-a-long, and forgot to take them off."
On September 19, 1998, you entered the
staff room for briefing and again were wearing the "duty
belt" equipped with handcuffs. You made no effort to remove the belt and place it in your
Approximately one hour (1 hr.) later, you were still wearing the duty belt and were
Shift Supervisor Ruffin. Supervisor Ruffin's comment was "I told you earlier in the week
are not to wear the duty belt on the premises." Your reply was "I forgot."
Approximately three and one half hours later (3 ½ hrs.)
Supervisor Ruffin entered the Shelter
area of the facility, approached you and said "you're not wearing the duty belt are you?"
was "I'll take it off later." Supervisor Ruffin responded with "take it off now and place it in
locker. I will watch your juveniles until you return." At that time, you took off the duty
proceeded to the Staff Room.
Your actions were totally insubordinate; and therefore, you are
receiving a three day suspension
without pay. The days included will be Thursday and Friday, October 8 and 9, 1998, and
October 13, 1998. Any further violations may lead to disciplinary action up to and including
Atlas testified that he found that the Grievant willfully disobeyed Ruffin's order. He
a three-day suspension appropriate because she had been notified previously that a duty belt
inappropriate, that it took several occasions before the belt was removed although she had
chances to remove the belt in the secure area. The Grievant testified that she did not disobey
order from any supervisor, and that she was never warned of the consequences of continuing
Atlas has been trying to have detention officers wear appropriate clothing at work.
instances where employees come to work with improper attire, he has used progressive
In the first instance, an employee is sent home to get proper attire. In the second instance,
employee is sent home without pay to get the proper attire. In the third instance, the
THE PARTIES' POSITIONS
The County argues that the grievance should be denied because the plain language of
collective bargaining agreement authorizes the County to create, promulgate and enforce
work rules, such as the policy prohibiting juvenile detention officers from wearing duty belts
handcuffs in areas of the Center occupied by residents. The Association has acknowledged
to management to make rules and orders of the sort involved in these proceedings.
The County disputes the Association's contention that management failed to make its
to the Grievant perfectly clear. There is no doubt that the Grievant knew what Ruffin was
her to do from September 12th through September 19th.
She was taking the time to look over her
policy and procedure manual to see if she could find any reason for her to obey Ruffin's
Even if the Grievant were confused about the belt, she was still in defiance of the
terms of the
collective bargaining agreement. Section 17.01 provides that: "Suitability of clothing will be
determined between Employer and employee." The County submits that there is no doubt
made clear management's objection to the Grievant's belt as an article of clothing.
The facts show that the duty belt was understood to involve wearing law enforcement
of a type associated with weapons and restraints. The Grievant does not deny that she was
handcuffs on her belt on September 12th and 19th, and this
is the essence of the issue associated with
duty belts. Whether the belt she wore was an inner trouser belt or outer duty belt is truly a
without a difference. The Grievant knew or should have known that she was not to be
type of gear in the Detention Center. She owned both types of belts and she appreciated
The Grievant was recently counseled by Ruffin regarding the prohibition on wearing
in the Center. She also should have known from the State Administrative Code and the
Plan for the Center that the topic of handcuffs was viewed as a serious matter with regard to
welfare of juveniles.
The County states that fairness and public policy support the reasonableness of its
that the Grievant was intentionally and willfully insubordinate to a degree that warranted a
suspension. The actions of Ruffin and Atlas were at all times done openly and in the good
to teach the Grievant to respect the legitimacy and seriousness of the limits which juvenile
officers must observe in performing their duties. While it was heartening to hear that the
no longer believed that Ruffin was harassing her, it is not too much to ask that she accept the
there needs to be proportionate consequences for insubordinate defiance of legitimate
The County argues that all of the evidence and testimony support the reasonableness
actions of Ruffin and Atlas in concluding that the Grievant's refusal to comply with Ruffin's
efforts to get her to cease wearing her duty belt and handcuffs was a blatant act of
An employee should expect adverse consequences for violating an order of his or her
The County asks that the grievance be denied, or that any relief be limited.
The Association asserts that the Grievant was not insubordinate and that she never
to obey an order to remove her belt. Moreover, Ruffin never informed her that she would
disciplined if she failed to take her belt off. It is the employer's burden to show that the
received an order that was clearly expressed, and that the employee was made aware of the
consequences of failing to comply with the order. The order must be clear and specific
let the employee know exactly what is expected, and what the penalty will be if he or she
comply. In this case, the Grievant never received an order requiring her to take her belt off.
undisputed that Ruffin never told her that she would be disciplined if she failed to remove the
The Association states that the Grievant never refused to comply with an order. This
would not exist if Ruffin had explicitly directed the Grievant not to wear her belt and not to
handcuffs during his September 16th interview, but he gave no such explicit
instructions cannot be considered adequate notice of what an employer expects. If a dispute
over whether an instruction was ambiguous, an arbitrator will not assume that the employee
During the September 16th interview, Ruffin failed to make it clear
that he expected the
Grievant not to wear the belt that he objected to and not to carry handcuffs. He told her that
supervisors were allowed to wear duty belts. This is not the equivalent of a clear order to
Grievant that she should not wear the belt that she regularly wore while working, and the
she was wearing during that interview. Also during that interview, Ruffin said nothing about
the Grievant could continue to carry her own pair of handcuffs. While it is now clear that
considered the Grievant's one-and-one-half-inch-wide trousers belt to be a duty belt, the
knew that her one-and-one-half-inch-wide belt was not a duty belt. She could have asked
clarify what he meant, but it was not her responsibility to elicit from him clarification as to
she could continue to wear her belt and carry her handcuffs. Rather, it was Ruffin's
communicate his expectations to the Grievant. Since he failed to do this, the Grievant was
insubordinate. The Union notes that when the verbal instructions of an employer may have
meanings to different listeners, an employee who fails to discern the employer's intended
The Union submits that even if Ruffin had clearly told the Grievant to remove her
was not told that she would be penalized for failing to take it off. An employee is not
unless that employee received explicit statements about the penalty for failing to comply with
expressed order. The failure to warn about a penalty for inaction deprives an employee of
opportunity for reflection and possible correction of unacceptable behavior. Ruffin did not
anything on September 16th about the Grievant being penalized if she
continued to wear her belt and
continued to carry handcuffs. Similarly, on September 19th, Ruffin said
nothing to the Grievant about
a penalty for failure to take off her belt, even though he noticed that she was wearing the
belt that he
disapproved of at 3:00 p.m. when she was in the staff area for briefing. If the wearing of
the belt was
actually a serious violation of rules,
Ruffin should have told her that she would be disciplined for insubordination if she
refused to remove
the belt. But he merely watched her and let her work for three hours without informing her
would be severely penalized for wearing her belt and cuffs. Given this failure to warn the
of the consequences of her wearing her belt, the County does not have just cause to
Grievant for her inaction.
The Association asks that the grievance be sustained and the County be directed to
the suspension from the Grievant's record and make her whole for all lost compensation.
Section 1.01 of the collective bargaining agreement provides that management has the
to suspend and discipline for just cause. Section 12.11 provides that insubordination or
comply with the proper order of an authorized supervisor is grounds for disciplinary action
from a warning to discharge, depending on the seriousness of the offense.
There are a couple of standards that arbitrators have used in cases of alleged
The Union cites a standard that includes the need for management to warn an employee of
consequences of not following a direct order. This standard has some appeal where the
imposed is severe, and a three-day suspension, as in this case, is certainly a severe penalty.
it should also be noted that in this case, the Grievant is a juvenile detention officer and has
police officer in a couple of communities. Her training has made her aware of the necessity
following orders from superiors. Accordingly, she should have known that she was to
order on September 19th.
The County believes that it has given a verbal warning to the Grievant about wearing
belt. So when she continued to wear it even after being told on September
19th not to wear it she
was being openly defiant to Ruffin's order and insubordinate. It is a close call as to whether
the counseling session between Ruffin and the Grievant sometime between September
12th and 19th
constituted a verbal warning. However, it is not necessary to determine whether it
put the Grievant
on notice that her belt was unacceptable, because it became perfectly clear on September
Despite any confusion over what was a duty belt and what was an inner belt or
the Grievant knew on September 19th that she was not to be wearing the
belt she had on. Ruffin told
her before she took the dinner trays that she was not to be wearing a duty belt. The
that he was objecting to the belt that she had on. She either said okay or that she had
had an opportunity right then to take the belt off and put it away in a locker. While she said
to take hot meals to the shelter area, she could have taken a minute to remove the belt then
it away. The meals would not have gotten cold in a minute.
Moreover, the Grievant showed that she was defying Ruffin's order by spending
that afternoon looking through the policy and procedure handbook in order to find out
Ruffin was wrong about the belt. The Grievant is a trained officer and understands the
of complying with orders. While she could question policy at another time, her obligation
follow Ruffin's order to take off whatever kind of belt she was wearing on September
19th. She did
not do so in any timely manner, and only did so later when Ruffin forcefully told her to take
it off now
and he would watch her kids while she put it away.
The County has proved that the Grievant was being insubordinate. It had just cause
discipline. The question is whether her insubordination was serious enough to warrant a
Arbitrators should hesitate to second-guess the degree of discipline imposed once it is
determined that there is just cause for discipline. Arbitrators should not substitute their
reduce the disciplinary measures unless those measures are clearly excessive, unreasonable,
capricious or management has abused its discretion.
While the Grievant had only been at the facility less than two years, she had no prior
disciplinary matters. Jumping to a three-day suspension was excessive and unreasonable
the circumstances, where she was not told that she could suffer such a severe penalty for not
complying immediately with the order given and had no prior disciplinary record. However,
reprimand would be in order, given the finding that the Grievant was insubordinate.
remedy is for the Grievant to be restored any lost compensation, and the County is to replace
disciplinary action of a suspension with a written reprimand.
The County had just cause to discipline the Grievant, Susan Eddy, for
did not have just cause to suspend her for three days. The County is ordered to reduce the
to a written reprimand and pay back to her money lost for three days of suspension or
her whole for the suspension. The Arbitrator will retain jurisdiction until May 14, 1999,
the purpose of resolving any disputes over the scope and the application of the remedy
Dated at Elkhorn, Wisconsin this 23rd day of April, 1999.
Karen J. Mawhinney, Arbitrator