BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
MILWAUKEE DEPUTY SHERIFFS'
MILWAUKEE COUNTY (SHERIFF'S
(Willie Taylor Suspension Grievance)
Gimbel, Reilly, Guerin & Brown by Mr. Franklyn Gimbel and
Aaron Hurvitz, on behalf of the Milwaukee Deputy Sheriffs
Mr. Timothy Schoewe, Deputy Corporation Counsel, Milwaukee
County, on behalf of Milwaukee County.
The Milwaukee Deputy Sheriffs' Association, hereinafter referred to as the
Milwaukee County, hereinafter referred to as the County or the Employer, are parties to a
bargaining agreement which provides for final and binding arbitration of grievances arising
thereunder. The Association made a request, with the concurrence of the County, that the
Employment Relations Commission designate a member of its staff to hear and decide a
filed by the Association. The undersigned was so designated. A hearing was held in
Wisconsin on February 2, 1999. The hearing was not transcribed. Afterwards, the parties
filed post-hearing briefs. The County subsequently filed a reply brief while the Association
elected not to file
a reply brief. The record was closed on March 17, 1999. Based on the entire record, the
issues the following Award.
The parties stipulated to the following issues: 1/
1. Did Deputy Taylor, in fact, violate departmental rules?
2. In the event he did, was the disciplinary disposition reasonable?
1/ In their initial briefs,
both sides worded the issue(s) differently from that noted here. The
wording of the issues referenced here reflect what is contained in the arbitrator's notes from
The parties' 1998-2000 collective bargaining agreement contains the following
1.02 MANAGEMENT RIGHTS
The County of Milwaukee retains and reserves the sole right
manage its affairs in
accordance with applicable laws, ordinances, regulations and executive orders. Included in
responsibility, but not limited thereto, is the right to determine the number, structure and
departments and divisions; the kinds and number of services to be performed; the right to
the number of positions and classifications thereof to perform such service; the right to direct
work force; the right to establish qualifications for hire, to test and to hire, promote and
employes; the right to transfer and assign employes, subject to existing practices and terms of
Agreement; the right, subject to civil service procedures and ss. 63.01 to 63.17, Stats., and
of the Agreement related thereto, to suspend, discharge, demote or take other disciplinary
right to maintain efficiency of operations by determining the method, the means and the
which such operations are conducted and to take whatever actions are reasonable and
carry out the duties of the various departments and divisions.
In addition to the foregoing, the County
reserves the right to make reasonable rules and
regulations relating to personnel policy procedures and practices and matters relating to
conditions giving due regard to the obligations imposed by this Agreement.
. . .
PERTINENT DEPARTMENTAL WORK
1.05.15 RULE 15 COURTESY AND
Members of the department shall
answer all inquiries from citizens in a courteous
manner and, if requested, shall give their name and badge number. Courtesy and
civility toward the public is demanded of all members of the department, and conduct
to the contrary will not be tolerated. Members in their conduct shall be civil and
orderly, and shall at all times exercise the utmost patience and discretion.
The County operates a Sheriff's Department. The Association is the exclusive
bargaining representative for the Department's deputy sheriffs. Grievant Willie Taylor is a
sheriff who has been with the Department since 1989. This case involves the discipline
meted out to
Taylor following two separate complaints by private citizens about Taylor's work conduct.
The April 22, 1998 Incident
On April 22, 1998, Deputy Taylor, who was then assigned to the Parks Unit, was
to McGovern Park to answer a disturbance call at a baseball diamond at the park. He
the call. Upon arriving at the park, Taylor spoke with the umpire at the baseball game. The
told Taylor that a group of about half a dozen spectators was being so disruptive that he (the
wanted them removed from the stands. Taylor then spoke to the people whom the umpire
identified as the disruptive spectators and told them to leave the park or he would arrest
of the spectators, who was later identified as Deloris Trice, argued with Taylor about being
from the park and a verbal exchange between the two ensued. During the course of their
exchange, Trice asked Taylor for his name and badge number. Taylor gave Trice his badge
but not his name. Taylor then asked Trice for her name, but she refused. Trice then left the
After Trice left, she called the Sheriff's Department and asked, among other things,
deputies are to give their name and badge number upon request. The Department supervisor
answered Trice's phone call responded that deputies are to give their name and badge
Following this phone call, Trice returned to the park where she approached Taylor
him she was going to file a complaint against him. She also told Taylor that a supervisor in
Sheriff's department had told her that deputies were supposed to supply their name and badge
upon request. Trice then demanded to know his name. Taylor responded by telling Trice
that if she
wanted to know his name, she should come over to his squad so they could exchange
Trice refused Taylor's offer and walked away.
The June 29, 1998 Incident
On June 29, 1998, Susan Sellin's car was hit by another car while she was driving in
Milwaukee. The striking car fled the scene and Sellin gave chase in an attempt to get its
number. While Sellin was pursuing the hit and run car, she used her car phone to call 9-1-1
report the hit and run accident.
During the course of her 9-1-1 call, Sellin drove past Deputy Taylor who was sitting
marked squad car in Lincoln Park clocking cars with radar. Taylor's radar clocked Sellin
miles per hour in a 25 miles per hour zone. Sellin was preoccupied with chasing the car that
her and her still ongoing 9-1-1 call, and was unaware that she had just driven past Taylor's
squad and been clocked going about 25 miles an hour over the speed limit. Taylor then
into traffic, turned on his flashing overhead lights, and attempted to pull Sellin over. At the
Taylor was unaware that Sellin had been hit by another driver and that Sellin was pursuing
and run) driver.
Sellin, who was still preoccupied with chasing the car that had hit her and her still
9-1-1 call, did not pull over even though Taylor's marked squad was behind her with its
activated. Other cars in the area pulled over, but Sellin did not. Instead, she drove for
about 3/4 of
a mile without pulling over. This frustrated and irritated Taylor, who eventually activated
siren. Taylor first used "manual" blasts from the siren, and then he put the siren on "full
Taylor then activated the squad's public address system and ordered the driver to
over, which she did. After stopping, Sellin jumped out of her car and ran back to Taylor's
In doing so, she thought that Taylor was the police officer who had been dispatched, via her
call, to give chase to the hit and run driver she was pursuing. She was wrong in this regard
Taylor, at that point, did not know anything about her hit and run accident, or her 9-1-1 call;
he had tried to stop this driver for speeding and she had not pulled over for 3/4 of a mile
his flashing lights and siren were activated. When Sellin ran back to Taylor's squad, she
to explain her situation to Taylor and show him the location of the hit and run vehicle.
Taylor to give chase to the car that had hit her. Taylor declined to do so, and told Sellin to
to her car, which she did. Taylor then called the dispatch center and a dispatcher confirmed
Sellin had previously reported a hit and run accident.
Taylor's failure to pursue the hit and run car made Sellin irate.
When Taylor walked up to Sellin's car, a verbal exchange ensued between the two.
part, Sellin berated Taylor for not pursuing the hit and run car. For his part, Taylor berated
speeding, driving recklessly, and not pulling over. During this verbal exchange, Taylor told
was going to give her traffic tickets for speeding and failing to stop for an emergency
news made Sellin even more irate.
After Taylor went back to his squad to write the tickets, Sellin called her husband
car phone and told him what was happening. While Sellin was talking with her husband on
two more police cars from different jurisdictions drove up and parked.
When Taylor returned to Sellin's car with the completed tickets, Sellin was still on
with her husband. Sellin's husband therefore heard part of what happened next. Sellin told
he was being mean to her and was not helping her as he was supposed to. She then twice
Taylor for his name and badge number. Taylor did not verbally respond with his name and
number either time. The first time he told Sellin that his name and badge number were on
The second time Sellin asked for this information Taylor responded thus: "My name is here"
to one side of his chest) "and my badge number is here" (pointing to the other side of his
. . .
Following the incidents referenced above, Trice and Sellin filed citizen complaints
Sheriff's Department concerning Taylor's work conduct. The Department's Office of
Standards investigated the complaints and, after doing so, referred them to the Police
Bureau. Captain Randy Tilke of that Bureau recommended to his supervisor that Taylor be
"Employe Documentation" for the Trice matter, but that no discipline be imposed for same.
Sellin matter, Tilke recommended that Taylor be given a one-day suspension, stayed for six
Inspector Willie McFarland did not follow Tilke's disciplinary recommendations. After
the matter, McFarland decided to suspend Taylor for three days: one day for the Trice
matter and two
days for the Sellin matter. Taylor was subsequently suspended for September 30, October 1
1998. He grieved his suspension, and the grievance was ultimately appealed to arbitration.
The record indicates that the Department's Inspector makes the decision whether to
discipline, and if so, how much. Captains can make recommendations to him, but the
under no obligation to follow them.
The record also indicates that other complaints of incivility have been filed against
citizens. The complaints involved here are the first two which have been "sustained" by the
Department's Office of Professional Standards.
POSITIONS OF THE PARTIES
The Association first contends that Taylor did not violate Department Rule 1.05.15 in
instances involved here. The Association focuses its attention at the outset on the portion of
which provides: "shall give their name and badge number." According to the Association,
just referenced is ambiguous because it does not explicitly specify how deputies are to
citizens who request their name and badge number. The Association asks the arbitrator to
same and construe any ambiguity against the drafter of the language (i.e. the County). Next,
Association argues that Taylor made a good faith effort to provide his name and badge
Trice and Sellin. To support this premise, it notes that Taylor did tell Trice his badge
that he listed both his name and badge number on the citations which he issued to Sellin. In
Association's view, these acts were sufficient to comply with Rule 1.05.15. Finally, the
contends that the level of discipline which was imposed here (i.e. a three-day suspension)
unreasonable under the circumstances and should be reversed. The Association therefore
the grievance be sustained, the suspension overturned and Taylor made whole.
The County first contends that Taylor violated a department rule when he failed to
name and badge number to Trice and Sellin. For background purposes, the County avers
Department Rule 1.05.15 has historically been interpreted to mean that officers are to
their name and badge number when requested. The County asserts that Taylor failed to do
the two citizens here, so he violated that rule. In the Trice matter, the County notes that
admits he told Trice he would only give her his name if she (Trice) would accompany him to
squad. The County argues Taylor should not have conditioned his response (on giving his
badge number) as he did. According to the Employer, Taylor's statement to Trice can
be viewed as an effort to "cow her" into not pushing her complaint against him further. In
matter, the County notes that Taylor admits he never verbally responded to Sellin's request
name and badge number. According to the Employer, he should have; since he did not, he
the rule. Next, with regard to the level of discipline which was imposed, the Employer
a three-day suspension was measured, not excessive, progressive and reasonable under the
circumstances. It submits that the arbitrator should grant deference to the level of discipline
was imposed here, and should not substitute his own judgment for that of the Sheriff. The
therefore contends that the grievance should be denied and the discipline upheld.
At issue herein is whether the discipline which the County imposed on the grievant
reasonable. The County contends that it was while the Association disputes that assertion.
I begin my analysis with a discussion of the standard which will be utilized to make
The standard which is set forth in many labor contracts is that there be just cause for
the term "just cause" is found in labor contracts, it ordinarily is not defined. Be that as it
widely-understood and applied analytical framework for determining just cause has been
through the common law of labor arbitration. That analytical framework consists of two
elements: the first is whether the employer proved the employe's misconduct, and the
assuming this showing of wrongdoing is made, is whether the employer established that the
which it imposed was justified under all the relevant facts and circumstances. The relevant
circumstances which are usually considered are the notions of progressive discipline, due
protections and disparate treatment. Here, though, this particular labor agreement does not
a just cause standard. In fact, insofar as the undersigned can tell, no standard at all for
discipline is included in the labor agreement. Notwithstanding the foregoing, what the
here was stipulate in issue number (2) to a reasonableness standard. While the term "just
a term of art in labor relations with a universally accepted meaning or analytical framework,
not the case with the term "reasonable". The term "reasonable" is not a term of art in labor
because it does not have a universally accepted meaning or analytical framework. That being
case, it is left to the undersigned to define "reasonableness". The undersigned has decided to
the following dictionary definition of "reasonable": not arbitrary, excessive or extreme.
comparing the definition of reasonable just noted with the previously-referenced notions of
it is apparent that a reasonableness standard gives employes less protection than does a just
standard. An employer's decision to impose discipline on an employe can be reasonable
even if it
does not comport with the notions of just cause referenced above.
Taylor's suspension notice indicates he was suspended for violating Department
That rule provides as follows:
Members of the department shall answer all inquiries from
citizens in a courteous manner and,
if requested, shall give their name and badge number. Courtesy and civility toward the
demanded of all members of the department, and conduct to the contrary will not be
Members in their conduct shall be civil and orderly, and shall at all times exercise the utmost
Certainly the Department has a legitimate and justifiable interest with ensuring that
members of the
Department are courteous and civil to members of the public. Police departments that fail to
their employes from being discourteous and uncivil to members of the public are at risk for
In their brief, the Association focuses its attention on the portion of the
which provides: "shall give their name and badge number". The undersigned will do
According to the Association, that phrase is ambiguous because it does not explicitly specify
deputies are to respond to citizens who request their name and badge number. The
the arbitrator to interpret same.
Arbitrators routinely interpret ambiguous language; it is their bread and butter so to
Generally speaking, the language which arbitrators interpret is contract language. The
referenced above is not contract language. Specifically, it is not part of the collective
agreement between the County and the Association. Instead, it is a work rule that was
adopted by the County. The second paragraph of Sec. 1.02 of the labor agreement expressly
the Employer the right to make reasonable rules and regulations relating to personnel policy
procedures. I read this same sentence to also implicitly give the Association the right to
the reasonableness of any such unilaterally adopted (work) rule. The (work) rule involved
1.05.15) indicates on its face that it was issued and became effective in 1984. Insofar as the
shows, the Association has not challenged the reasonableness of this rule in the 15 years that
elapsed since then. Also, the Association does not expressly challenge the reasonableness or
application in this instance either.
When work rules are unilaterally adopted by the employer, the employer usually gets
crack at interpreting them. Such is the case here. In this case, there was testimony from the
Employer's sole witness, Captain Mascari, about how the last portion of the first sentence of
1.05.15 (i.e. the phrase "shall give their name and badge number") has historically been
and applied in the Department. He testified that when a citizen asks for a deputy's name and
number, the deputy is supposed to immediately verbally respond by telling the citizen their
badge number. Mascari's testimony is important for two reasons. First, his testimony
very point which the Association says is lacking in the last portion of the first sentence of
1.05.15, namely how deputies are supposed to respond to citizens who request their name
number. Specifically, when a citizen asks a deputy for their name and badge number, the
to immediately verbally respond by saying their name and badge number. The deputy is not
to withhold this information; providing it is mandatory, not optional. Second, Mascari's
of how this portion of Rule 1.05.15 has been interpreted and applied in the Department was
contradicted or disputed by any witness testimony or record evidence. That being so, an
interpretation of that portion of Rule 1.05.15 already exists. Since an established
interpretation of that portion of Rule 1.05.15 already exists, the undersigned sees no
independently interpret same. Instead, I will apply that existing interpretation to the instant
When Taylor was asked his name and badge number in the two instances in issue
here, he did
not respond verbally and immediately with his name and badge number as he should have.
following shows this. In the Trice matter, Taylor's own written statement of the incident
thus: "I advised this lady that I would gladly give her my name if she would step over to
so we could exchange information." Taylor's statement to Trice does not comport with the
portion of the first sentence of Rule 1.05.15. He should not have conditioned his telling
name on her coming to his squad to exchange information. His statement to Trice can easily
construed as an effort to intimidate her into not pushing her complaint against him further.
reply brief, the County puts it thus:
Taylor wanted to use his identity as a chip to barter with the
citizen who asked his name in order
to file a complaint with the Sheriff. He said he would only give his name and badge number
went to his squad. The implication is clear. The only conclusion that can be drawn here is
that if the
citizen wanted to subject herself to Taylor's possible retribution then she would get the
If she dropped the quest to complain about him, no official action would befall her.
The undersigned agrees with this characterization. Turning now to the Sellin matter,
indicates that Sellin twice asked Taylor for his name and badge number. He never verbally
either. The first time Sellin asked for his name and badge number, Taylor responded that
on the tickets which he had just given her. The second time Sellin asked for this same
Taylor snidely responded: "My name is here" (pointing to one side of his chest) "and my
number is here" (pointing to the other side of his chest)." Suffice it to say he should not
so. In both instances, Taylor should have responded to the citizen's request for his name and
number by simply immediately verbally giving them same. Since he did not do so on the
occasions at issue herein, Taylor violated that portion of Rule 1.05.15 which mandates that
"shall give their name and badge number" to citizens upon request. Violating a portion of
1.05.15 constitutes a violation of the entire rule. Taylor therefore violated Rule 1.05.15 by
conduct herein. His misconduct constituted inappropriate workplace conduct which
Having so held, the next question is whether the discipline imposed on Taylor for his
misconduct (a three-day suspension) was reasonable. I find that it was. The Employer's
impose this suspension has not been shown to be arbitrary, excessive or extreme. It
muster. In so finding, it is expressly noted that nothing in this labor
agreement requires that a lesser form of discipline had to be issued in this particular
case. Many labor
agreements specify a particular sequence which must be followed by the employer when it
discipline. For example, some labor agreements provide that a verbal warning must be
then a written warning, then a suspension, etc. This particular labor agreement does not
language. That being so, the undersigned finds no basis for overturning the Employer's
Based on the foregoing and the record as a whole, the undersigned enters the
1. That Deputy Taylor did, in fact, violate Department Rule 1.05.15;
2. That the discipline which was imposed on him for violating that rule was
Therefore, the grievance is denied.
Dated at Madison, Wisconsin this 30th day of April, 1999.
Raleigh Jones, Arbitrator