BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
KENOSHA COUNTY (Wisconsin)
KENOSHA COUNTY LOCAL 990 (JAIL STAFF),
(Grievance concerning the discharge of V_ P_)
Mr. Frank Volpintesta, Corporation Counsel,
with Davis & Kuelthau, S.C. by
Mr. Mark L. Olson
and Mr. Gregory B. Ladewski on the brief, on behalf of the County.
Mr. John Maglio, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, on behalf of
At the joint request of the Union and County noted above, the Wisconsin
Relations Commission designated the undersigned Marshall L. Gratz as Arbitrator to hear
a dispute concerning the discharge of the Grievant, which dispute arose under the parties'
At a pre-hearing settlement conference in this matter held on May 4, 1998, the
the Union and Arbitrator that it refused to proceed to arbitration in the matter. The County
agreed to proceed at the conclusion of a resultant WERC complaint hearing regarding that
Thereafter, pursuant to notice, the grievance dispute noted above was heard by the Arbitrator
County Personnel Department office on October 27, 1998. The proceedings were not
however, the parties agreed that the Arbitrator could maintain a cassette tape recording of the
testimony and arguments for the Arbitrator's exclusive use in award preparation.
By agreement of the parties, the County initially summed up orally at the hearing,
then submitted a brief, and the County submitted a reply which was exchanged on December
1998, marking the close of the hearing.
At the hearing, the parties authorized the Arbitrator to decide the following issues:
1. Did the County have just cause to terminate V__ P__?
2. If not, what is the appropriate remedy?
PORTIONS OF THE
ARTICLE I - RECOGNITION
. . .
Section 1.2. Management Rights: Except as
otherwise provided in this Agreement, the County
retains all the normal rights and functions of management and those that it has by law.
limiting the generality of the foregoing, this includes the right to . . . suspend or otherwise
or discipline for proper cause; . . . .
. . .
ARTICLE III - GRIEVANCE PROCEDURE
. . .
Section 3.5 Work Rules and Discipline: Employees
shall comply with all provisions of this
Agreement and all reasonable work rules. Employees may be disciplined for violation
the terms of this Agreement, but only for just cause and in a fair and impartial manner.
employee is being disciplined or discharged, there shall be a Union representative present
and a copy
of the reprimand sent to the Union. . . .
The foregoing [grievance and arbitration] procedure shall govern
any claim by an employee that
he/she has been disciplined or discharged without just cause. Should any action on the part
County become the subject of arbitration, such described action may be affirmed, revoked or
in any manner not inconsistent with the terms of this Agreement.
. . .
The Union represents certain jail staff personnel employed in the County's Jail
County and Union have been parties to a series of collective bargaining agreements covering
including the Agreement.
Prior to his discharge effective January 19, 1998, the Grievant was employed as a
in the County Jail. It is undisputed that, when discharged, Grievant was a "long term"
whose County employment dated from sometime before 1984.
The grievance giving rise to this proceeding was dated January 19, 1998. That
asserts the following:
P__ was terminated by Kenosha County for reasons other than
proper or just cause [in violation
of] Article I Sec. 1.2 and Article III Sec. 3.5 and any and all articles that may apply. [Such]
P__ [should] be reinstated immediately and made whole for any lost wages or benefits and
furthermore, that his work record be expunged of this matter.
The above-noted grievance was then filed and processed to arbitration as noted
above. At the
hearing the County presented testimony by Sheriff's Department Chief Deputy Charles Smith
County Personnel Director Brooke Koons. The Union cross-examined the County's
rested its case.
It is undisputed that, in January of 1991, after having experienced alcohol-related
and off the job, and after having undergone alcohol abuse counseling, the Grievant and
representatives met with County representatives regarding a recommended six-month
suspension of Grievant that resulted from Grievant being arrested for driving under the
alcohol earlier that month. It is also undisputed that on January 15, 1991, an
ultimately entered into and signed "FOR THE UNION" by Grievant, Union 1st Chair Karen
Shepard and Union Steward Oscar D. Salas, County and "FOR THE COUNTY" by Koons
and then-Sheriff Allan K. Kehl, which read, as follows:
It is hereby agreed by and between the parties, Kenosha County,
Kenosha County Sheriff's
Department, Local 990-Jail Staff, and V__ P__, that the issue involving Kenosha
Department employee V__ P__ shall be resolved as follows:
1. In lieu of a 6 month suspension for V__
P__, the parties agree that a 4 work day suspension
will be imposed. The dates of the suspension to be January 14, 15, 16th and 17th, 1991.
2. V__ P__ shall be on probationary status for a 1 year period
ending January 14th 1992.
During this period the County and the Sheriff's Department [shall have] the right of
applied to any other employee in that status.
3. V__ P__ shall during the period of
probation submit to random testing for drugs and alcohol.
4. V__ P__ shall have must [sic] perfect attendance and
punctuality with exception of legitimate
illness during the period of probation.
5. V__ P__ shall be terminated from
employment with Kenosha County and the Kenosha
Sheriff's Department where the use of alcohol or drugs causes him not to report to work, or
to work late, or report to work under the influence of an intoxicant or drugs; or causes him
arrested; or brings discredit upon the reputation of County and the Sheriff's Department in
community, during the life of his employment with Kenosha County.
6. It is not required but recommended that
V__ P__ seek treatment for his problem with alcohol.
The County will not monitor his treatment as in the past, only his conduct as related to any
that may affect the operations of the Sheriff's department and its reputation in the
7. By this agreement, Local 990-Jail Staff does not acknowledge
the ability of the County to
conduct drug and/or alcohol tests of County employees.
8. This agreement is non-precedential and
shall have no effect in any future grievance which may
arise between the County, the Sheriff's Department and Local 990-Jail Staff.
Dated this 15th day of January, 1991
It is also undisputed that on January 5, 1998, Grievant was involved in a one-car
damage accident occurring at approximately 5:30 p.m. that day. After being apprehended by
Kenosha City Police in the process of walking from the scene toward his home, Grievant was
and cited for operating a motor vehicle while intoxicated, for doing so with a blood alcohol
of .23, for operating his vehicle left of the center line, and for leaving the scene of an
Grievant was transported to the County Jail and booked in before being released later that
In response to those developments, the Sheriff's Department placed Grievant on
leave with pay until an investigation by the Department was made and completed. Following
Department's investigation, the Department recommended that Grievant be terminated.
a January 13, 1998, pre-disciplinary hearing at which Grievant was present and represented
Union, Smith issued a January 16, 1998, memorandum concluding as follows:
I find that Mr. P__ has been given every opportunity by the
County to preserve his job and find
help for his alcohol problem. His irresponsible actions in his second arrest for driving under
influence and [his] leaving the scene of an accident has indeed violated the Last Chance
and damages the reputation of the Kenosha County Sheriff's Department, a law enforcement
with the community.
It is also disheartening to realize that the Union, who bargained
for the Last Chance Agreement
in 1991 and signed off fully recognizing and agreeing to its demands, now doesn't recognize
wants to renege on their agreement.
I, therefore find no recourse but to accept
the recommendation of the Department of termination
as it relates to V__ P__.
Mr. P__'s last day of employment with
Kenosha County will cease at 4:00 p.m. on Monday
January 19, 1998.
Additional background information is set forth in the summaries of the parties'
in the discussion, below.
POSITION OF THE EMPLOYER
Even in the absence of any last chance agreement, the facts of this case would
cause for Grievant's termination. The Grievant, a County Sheriff's Department employe,
property and endangered the safety of the citizens his Department is responsible for
then illegally left the scene of the accident, abandoning his vehicle in the road, causing the
expend time and resources investigating the scene, obtaining statements and tracking him
Ultimately, he was arrested and later booked and incarcerated by his co-workers in the Jail
Given the terms of the 1991 agreement, there is no reason to compare the gravity of
and 1998 incidents as the Union has done. However, if such a comparison is made, the
1998 behavior was more serious than his 1991 actions and merits more serious
consequences. In 1991, Grievant received a single citation for driving while
intoxicated after being
observed by the arresting officer driving through a red light after stopping for it. In 1998
was cited for four violations: operating a motor vehicle while intoxicated; having a blood
content in excess of the legal limit; operating left of center; and hit and run adjacent to a
In 1998 Grievant's van struck and damaged a bridge barrier support, a fire hydrant and a
and he endangered the safety of numerous citizens by careening down the street at speeds
miles per hour, crossing the center line numerous times, and causing numerous cars to
avoid colliding with his vehicle; and then he left the scene of the accident altogether. Given
increased public concern about the dangers of drunk driving, Grievant's 1998 behavior can
presumed to have done greater harm to the reputation and integrity of the Sheriff's
the County generally than was the case in 1991.
In any event, the Grievant's termination was the proper and direct result of his
violation of the
terms of the 1991 last chance agreement. The County has lived up to the obligations
imposed on it
in the 1991 agreement. In 1998, the Grievant violated those terms. There is no basis in this
the Arbitrator not to hold Grievant and the Union to their end of that bargain.
The last chance agreement was fully in force in 1998 and is unambiguous in its
effect. The 1991 agreement was bargained for and freely signed by the Grievant and by his
representatives. It clearly states that if Grievant were ever again involved in an
he "shall" be terminated. Grievant and the Union could have challenged the severe discipline
was facing in 1991 through the grievance procedure and argued that Grievant's off-duty
drinking-related conduct was not susceptible to discipline by the County. By choosing,
instead, to enter the
1991 agreement, they waived their right to advance any such arguments in this case. While
year probationary period referenced in paragraphs 2-4 has expired, the terms of paragraph 5
alcohol-related arrests have not expired. Those latter terms expressly provide that "during
of his employment with Kenosha County" if Grievant is arrested due to the use of alcohol he
be terminated from employment with Kenosha County and the Kenosha County Sheriff's
Department." If the Union or Grievant felt those terms were too harsh or unreasonable they
have taken their chances grieving the proposed 1991 discipline. Having entered into the
agreement, they are now bound by it.
Arbitral authority, including that cited by the Union, strongly supports the
enforceability of that
agreement. Citing, Tecumseh Products, 82 LA 420 (Murphy, 1984) (enforcing last chance
agreement requiring no further alcohol abuse). In the Exxon case cited by the Union, the
stated that the last chance agreement "is a part of the agreement by which the grievant was
and which is enforceable by the Company by proper discipline." The discharge in that case
reduced to a reinstatement without back pay
because the grievant had committed only technical, minor and even ambiguous
violations of the last
chance agreement. In the Ohio case cited by the Union, despite his expressed concerns that
years is too long to maintain a last chance agreement, the arbitrator wound up sustaining the
discharge and enforcing the agreement, which, unlike the one in the instant case, contained
language regarding its duration.
For those reasons, the Arbitrator should conclude that the discharge was for just
should deny the grievance in all respects.
POSITION OF THE UNION
The Grievant's January 5, 1998, arrest for driving under the influence of alcohol
the 1991 agreement. The 1991 agreement followed various job related problems associated
Grievant's bouts with alcohol. Those problems included inability to fulfill his work duties
County to replace him with other employes working at overtime premium rates. In contrast,
Grievant's 1998 arrest did not cost the County money and did not interfere with the County's
operations in any way. Grievant was not in uniform when he was arrested. He did not try
influence anyone involved in his arrest based on his County employe status. Moreover,
not report to work under the influence of alcohol in 1998 or at any time since the 1991
was entered into.
While Grievant's problems with alcohol recurred in 1998, the County has failed to
a nexus or direct relationship between Grievant's alcohol abuse and Grievant's job
1998 arrest was not so egregious as to put his job in jeopardy. Citing, Exxon USA, 101 LA
(Sergent, 1993). Without a showing of adverse effect of the Grievant's off-duty conduct on
Employer's business, just cause for discharge has not been established. Citing additional
In any event, after the passage of seven years, the 1991 agreement was no longer
valid in 1998.
In its numbered paragraph 2, it places Grievant on probationary status for a one year period
January 14, 1992," such that "During this period the County and the Sheriff's Department
the right of termination as applied to any other employee in that status." That was double
month probationary period made applicable to newly hired employes in Agreement Sec. 6.1.
Grievant to that much higher standard goes well beyond the terms of the labor agreement.
In addition, it is manifestly unreasonable, and inherently violative of the Agreement
standard for discharge for the 1991 agreement to expose the Grievant to summary discharge
without the full protection of the just cause standard applicable to new hires after completion
six month probationary period. Citing, Ohio Department of HighwaySafety, 96
LA 71, 77 (J.
Dworkin, 1990) ("In order to be regarded as reasonable,
last chance compromises must terminate within sensible times; to withhold full
from an employee for five, ten, twenty or thirty years is a model of unreasonableness, so
just cause as to constitute an irrefutable contractual violation. . . . Two years seem
long for an employee to be kept 'under the gun,' too long to weather a critical evaluation of
Even the State of Wisconsin Motor Vehicle Code has more reasonable standards
convictions for driving while intoxicated. Thus, by 1998, Grievant's 1991 conviction for
had been expunged from his permanent record based on the passage of time, such that the
treated his 1998 conviction as his first such offense. To be consistent with the Agreement's
standard, the County and the Arbitrator must do the same.
It is ridiculously harsh and unreasonable to deprive the Grievant of the full
protections of the
just cause standard for seven years. Especially so where those protections are made available
hires after six months; where Grievant avoided a recurrence of his driving under the
more than the forgiveness period for such convictions under Wisconsin law; and where the
conviction did not cost the County any money.
For those reasons, the Arbitrator should conclude that the discharge was without
should order the County to reinstate Grievant with full back pay and expunge the discharge
Agreement Article III Step 5 expressly limits "the authority of the arbitrator . . . to
construction and application of the terms of this Agreement and limited to the grievance
him/her for arbitration. . . ." For that reason, and given the STIPULATED ISSUES
submitted by the
parties, the Arbitrator has limited his analysis in this case to the question of whether the
discharge of the Grievant violated the "proper cause" and equivalent "just cause" standards
in Agreement Secs. 1.2 and 3.5, to which the Arbitrator understands the parties to refer by
reference to "just cause" in STIPULATED ISSUE 1. Thus, the Arbitrator does not address
question of whether the discharge violated any laws; only whether the discharge violated the
cause/just cause standard of the 1998-99 Agreement between the Union and the County.
At the center of this arbitrator are the parties disputes about whether the 1991
remains in effect and if so whether it applies to this case.
It is a well established arbitral principle that "an arbitrator must abide by the terms
of a last-chance agreement fairly negotiated between an employer, an employee and (where
union representing the employee." St. Antoine, et al., The Common
the Workplace -- The Views of Arbitrators (BNA, 1998) at 161. That
treatise elaborates with the
a. Occasionally parties may settle a disciplinary grievance with a
"last-chance" agreement. These
agreements vary in terms but usually grant the employer discretion to discharge the employe
subsequent offense (sometimes for a subsequent similar offense) and commonly
state or imply that the
usual procedural protections will not apply. One of the most common occasions for
agreements is the reinstatement of an employee discharged for problems related to substance
b. Preclusive Effect. Depending on its exact
phrasing, the last-chance agreement may definitively
resolve the question of whether a given offense provides a legitimate basis for discharge.
agreement may bar an arbitrator from imposing a further requirement of proportionality or
progressivity, but it normally would not bar inquiry into the question of whether the
committed the final offense charged by the employer.
. . .
c. Relationship to the "Just Cause" Requirement.
Depending on its wording, the agreement may
or may not replace the just cause requirement. Because the just cause requirement is so
an arbitrator should not, without express language, presume the parties intended to abandon
it. If the
agreement does replace the just cause requirement, the arbitrator's authority may be limited
interpreting the last-chance agreement itself and determining whether the employee actually
d. Necessary Parties. In a unionized workplace, no
employee may enter into an agreement that
conflicts with the collective bargaining agreement. The union, however, is generally free to
the collective agreement, even in the context of a last chance agreement affecting a single
If the last-chance agreement conflicts with the collective agreement, the union must be a
party to it
before it will be binding.
. . .
e. Duration. A well-drafted last-chance agreement
will specify an expiration date, after which
the employee will be subject to the same disciplinary rules and procedures applicable to other
employees. If the agreement does not state how long it lasts, an arbitrator should find that
intended it to last a "reasonable" time, depending on the nature of the offense, the parties'
and other relevant factors."
Id. at 161-163.
The Arbitrator finds that the foregoing principle and comments provide appropriate
guidance as regards the effect, if any, that the 1991 agreement should have in this case. The
Arbitrator so concludes for the reasons outlined by arbitrator Dworkin at the outset of his
in the Ohio award, as follows:
Last-chance agreements are effective tools for promoting
employment security. They benefit
both parties; they aid the Union to salvage jobs and the [Employer] to salvage employees.
side agreements, fully as enforceable as any memorandums of understanding interpreting
terms and establishing standards of compliance. If they were not, neither party would have
to review its stand on a discharge. Unenforceable last-chance agreements would be futilities.
Union would be deprived of an important resource for protecting employes; the [Employer]
lose the wherewithal to give an employe the "one last chance" the Union so often pleads for
preliminary grievance levels.
96 LA 71 at 76.
Here, a 1991 dispute concerning a proposed six-month suspension of the Grievant
for alcohol-abuse-related conduct was resolved by resort to a last chance agreement among
the Grievant the
Union and the County. Because all of the parties to that agreement signed it and have acted
reliance on it since it was entered into, and because there has been no showing that it was
negotiated, the Arbitrator concludes that the 1991 agreement was fairly negotiated.
The provisions contained in paragraphs 2-4 of that agreement expired by their
on January 14, 1992. In contrast, however, the agreement specifically and expressly
the terms of paragraph 5 of that agreement are applicable "during the life of [the Grievant's]
employment with Kenosha County." Accordingly, unlike the Ohio case cited by both parties,
is not a case in which the last chance agreement does not state how long it lasts. It is
not a case in which the Arbitrator is in a position to impose his own judgement -- based on
Vehicle Code timelines or any other considerations --regarding what a reasonable duration
for the provisions of paragraph 5. The parties unambiguously determined that for themselves
paragraph 5 by specifically making that paragraph applicable throughout the life of the
employment with the County. The Grievant and Union accepted that provision and the
others as part
of an agreement that provided Grievant a significant benefit relative to taking his chances
grievance procedure challenge of the pending six month suspension. Since that time, both
Grievant and the County have apparently benefited from the Grievant's successful avoidance
alcohol-abuse-related-conduct violative of the terms of the 1991 agreement. Notwithstanding
lengthy success period, under the clear and unambiguous language of the 1991 agreement,
remains entitled to enforcement of the remaining provisions of that Agreement if they are
in this case.
The language of paragraph 5 also definitively resolves the question of whether a
provides a legitimate basis for discharge. It specifically and expressly provides that Grievant
be terminated from employment with Kenosha County and the Kenosha Sheriff's Department
the use of alcohol . . . causes him to be arrested . . . ." The 1991 agreement therefore bars
Arbitrator from imposing a further requirement of proportionality or progressivity. It also
Arbitrator from requiring the County to show that there is a sufficient nexus between the
alcohol-caused arrest of Grievant and interests that the County has an Agreement right to
protect by means
of employe discipline. In those respects, the 1991 Agreement redefined the meaning of
cause" and "just cause" as regards instances of conduct on Grievant's part that fall within the
categories of misconduct described in paragraph 5.
However, paragraph 5 of the 1991 agreement does not bar inquiry into the question
the Grievant committed the violation of the 1991 agreement as charged by the County.
When that inquiry is undertaken, the record evidence clearly establishes that
Grievant's use of
alcohol caused him to be arrested on January 5, 1998. When he was apprehended shortly
accident, Grievant took and failed both field sobriety tests and an Intoxilyzer Alcohol
registering an unlawfully high Blood Alcohol Content of .23 on the latter test. He was
charged with, among other offenses, operating a vehicle while intoxicated.
Accordingly, the County was within its rights under the Agreement, as properly
accordance with the provisions of the 1991 agreement, to impose the instant discharge.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the STIPULATED ISSUES noted above that
1. Yes. The County did have just cause to discharge the Grievant.
2. Accordingly, the grievance giving rise to this arbitration is
denied, and no consideration of a
remedy is necessary or appropriate.
Dated at Shorewood, Wisconsin this 17th day of May, 1999.
Marshall L. Gratz, Arbitrator