BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
GENERAL TEAMSTERS LOCAL UNION NO.
VILLAGE OF FAIRCHILD
Previant, Goldberg, Uelmen, Gratz, Miller & Brueggeman, S.C., by
Attorney Frederick Perillo, appearing on behalf of the Union.
Weld, Riley, Prenn & Ricci, S.C., by Attorney William G.
Thiel, appearing on behalf of the Village.
General Teamsters Local Union No. 662, hereinafter referred to as the Union, and
of Fairchild, hereinafter referred to as the Village, agreed to submit the thirty-day suspension
Kenneth Nelson to final and binding arbitration. The Union made a request, with the
of the Village, that the Wisconsin Employment Relations Commission designate a member of
to act as an arbitrator to hear and decide whether there was just cause for the suspension.
undersigned was so designated. Hearing was held in Eau Claire, Wisconsin, on
March 25, 1999. The
hearing was not transcribed and the parties submitted post-hearing briefs, the last of which
received on April 27, 1999.
The grievant is employed by the Village of Fairchild which has a population of 510
located about 30 miles southeast of Eau Claire, Wisconsin. The grievant is the only Village
who is a State certified Water System Operator and performs a wide variety of
maintenance duties including the running and repair of the water and sewer systems,
street sweeping, road patching, minor maintenance and other duties of a similar nature. The
has been employed by the Village for 23 years and is supervised by the Village Board and in
his immediate supervisor has been the Village Board President. The grievant was never
by the Village until May, 1998. Prior to April, 1998, the Village employed another full-time
and a half time employe. The half-time employe was injured and did not return to work for
Village and in April, 1998, the other full-time employe quit and was not immediately
the grievant was the only Village employe performing maintenance and other duties from
through December, 1998. Sometime in April or May, 1998, the Village Board President
supervision of the grievant to Village Board member Tom Gorkowski. The grievant was
written reprimand on May 4, 1998, for failure to perform certain duties, failure to
supervisor's directives, failure to maintain records, failure to work the hours the Village
other failures. The grievant was put on notice that if his attitude and willingness to follow
instructions and directives of his supervisor and/or the Board did not improve substantially
further discipline and/or discharge may follow. The grievant was also informed that he
evaluated 90 days from the letter of reprimand. (Exhibit 3)
After a closed session of the Village Board on November 10, 1998, where the
performance was discussed, the grievant was given a letter dated December 4, 1998,
wherein a list
of 25 deficiencies were listed with a notice that the grievant's supervisor recommended that
grievant be discharged. (Exhibit 2) At the Village Board meeting on December 10,
grievant was given a thirty (30) day suspension without pay.
The parties stipulated to the following:
Whether there was just cause for the 30-day suspension of the
grievant in December, 1998?
If not, what is the appropriate remedy?
The Village contends that the grievant's failure to abide by the State requirements
to flushing water system valves and hydrants and preparing the records related thereto by
justifies the disciplinary action taken. It submits that in 1996, the Village was alerted to the
the grievant was not performing these duties. The Village claims that the grievant failed to
the required hydrant flushing and the appropriate documentation and
the grievant admitted at the November 10, 1998 evaluation session that he had
not performed these
duties in the manner required by DNR. It points out that in May, 1998, the grievant was
provide copies of all correspondence to and from governmental agencies including water and
reports to the Village Clerk and the grievant had not done so by December, 1998, a failure
to follow a direct order. It alleges that the grievant is responsible to operate the Village's
system in accord with State standards to ensure the safety and health of the residents and the
cannot decide which rules he will follow and those he considers to be superfluous.
The Village claims that the grievant was clearly insubordinate in general terms. It
over an extended time, the grievant failed and refused to perform required job
argues that after the grievant failed to respond to oral directives, he was given written
which were to be signed and returned when the task was finished. It refers to
Exhibit 5 as evidence
of such directives which were not followed through by the grievant. It insists that the
excuses that he was the only maintenance man where previously there were two and the new
project kept him away from his normal job, falls flat. The Village maintains that the
grievant was not
asked to perform what two men had performed before; rather he was asked to perform
tasks. It contends that fixing a library window should not require a memo on May 26,
on June 15, 1998, yet another on August 16, 1998, again on August 31,
1998, and a further memo
on October 12, 1998. It observes that the grievant never did fix it but the recently
hired helper did.
It states that the grievant was told to sweep Humbird Street, not to spend so much time on
sewer project, to put machine parts away and not to work overtime unless authorized, yet the
grievant did not do what he was told to do. It submits that the grievant continued to question
authority of his supervisor and failed to follow his instructions. It asserts that the grievant
numerous written reminders to perform certain job tasks which the grievant ignored.
The Village contends that the grievant destroyed Village records, to wit, water test
It notes that he admitted throwing these away without any authorization. It submits the
to turn in all records to the Village Clerk and the grievant's response that some vendors sent
to his home address is an unsatisfactory explanation, as all the grievant had to do is timely
records with the Village Clerk. It insists the destruction of the water test results is another
of insubordinate behavior on the grievant's part.
The Village claims the grievant failed to abide by Village policy with respect to
accidents. It points out that on July 5, 1998, the grievant failed to set the brakes on
the Village truck
and it rolled down a slope into the edge of the lagoon. It notes that the grievant enlisted the
assistance of a nearby farmer to pull the truck out. It asserts that by this conduct the
exposed the Village to potential liability or personal injuries and/or property damage. It
the grievant's actions violated the Village handbook which requires employes involved in
to immediately notify the police, their supervisor and
the Village Clerk, none of which the grievant did on the basis he did not consider this
to be an
accident. The Village claims that the grievant's supervisor should have been notified and the
as to whether or not this was an accident was not the grievant's to make.
The Village argues that the grievant failed to adequately deal with an emergency
It submits that the grievant did not want to be disturbed while at a tavern and failed to
respond to an
emergency call about a sewer backing up into a residence. The Village claims that the
calling the resident and determining it was not an emergency is another example of the
insubordinate behavior towards his supervisor who directed him to go to the house and look
The Village states that the standard applicable to the grievant's suspension is "just
It cites numerous arbitral authorities which stated a "just cause" standard and the Village
it by asserting that "just cause" means that an employer, acting in good faith, has a fair
discipline the employe and the reason is supported by the evidence. It adds that the
be directly connected with an employe's work, represent a willful disregard for the
interest and be inconsistent with an employe's obligations to the employer. The Village
it had ample "just cause" for the grievant's thirty-day suspension. It insists that it engaged in
progressive discipline and the grievant engaged over a substantial period of time in the same
for which he was reprimanded on May 4, 1998. It claims that the grievant simply
refused to do what
his supervisor directed him to do and the grievant decided when and how to do several job
Village maintains that it was not up to the grievant to decide what jobs should be done or
to respond to the Village's demand for services. It submits the grievant was disrespectful of
Village's needs and persisted in doing things his own way.
The Village asserts that it did not act precipitously, punitively or without basis in
characterizes its actions as a last resort--one final attempt to convince the grievant he could
in an insubordinate manner and he was not an entity unto himself. It observes that the
record, the written reprimand of May 4, 1998, plus the numerous memos sent to him
he was warned.
It maintains that the grievant was insubordinate in that he refused to obey his
many orders. It contends that the grievant was issued clear and direct orders which were
and consistently disobeyed by the grievant. The grievant, according to the Village, did not
memo system, so he ignored it and he did not care for his supervisor, so he was
him and perhaps he just didn't "get it" but that is not the Village's fault.
The Village insists that on one occasion the grievant was directly insubordinate when
supervisor told him not to work unauthorized overtime and an argument ensued. It observes
grievant was required to obey his supervisor's order even if he did not agree with it.
The Village submits that the grievant engaged in a pattern of activity where he was
given instructions which he disobeyed warranting his discipline and it asserts that it engaged
great deal of forebearance" before it disciplined him. It suggests that the grievant could have
discharged for his egregious conduct but was properly disciplined by the 30-day suspension.
The Village insists that it had "just cause" to impose this particular penalty. It points
the grievant was reprimanded in May, 1998, and up until the suspension, was given
directions and orders which the grievant chose to ignore. It argues that the grievant's blatant
disregard of supervisory authority was so severe that it merited the 30-day suspension. It
it attempted to correct the grievant's behavior but nothing less than the 30-day suspension
have brought to the grievant's attention that it is the Village and not he that establishes policy
determines what staff should work on within their respective job duties. It concludes that
exists for the 30-day suspension.
The Union contends that the grievant was suspended without just cause and in
his rights under Secs. 111.70(3)(a)1 and 3, Stats. The Union asserts that the thirty
which the Village charged the grievant fall into four categories:
1. He was rude and insubordinate to Village officials.
2. He failed to perform work adequately in
response to his supervisor's orders.
3. He failed to follow Village policy
regarding schedules, reports or other procedural matters.
4. He failed to follow DNR guidelines on
water system maintenance.
The Union claims that these charges are untrue or there are substantial mitigating
render the severe discipline imposed unjust. It submits that the claims of rudeness and
insubordination were not substantiated. It insists that the grievant's supervisor, rather than
grievant, was the abrasive, confrontational party. It states that at worst, the incidents cited
Village reveal a personality conflict and discipline based on mere personal dislikes cannot be
of even minor discipline. It observes that the grievant had no such conflicts in the previous
although he worked with different administrations. It notes that the grievant has harmonious
with citizens in general, employes of contractors and the DNR but not with a few Village
officials. It claims that this evidence suggests that the problem inheres in unreasonable
and hypersensitivity on the part of these officials.
The Union contends that the Village's attempt to force this case into the mold of
insubordination, characterizing the grievant as a willful worker who simply refused to follow
instructions must fail. It asserts that the grievant was repeatedly given orders he could not
was not obliged to follow. It points out that he was not obligated to work unsafely in a
window. It takes the position that it was unreasonable to expect him to perform all the
given to him after the loss of two other Village employes. It cites arbitral authority for the
proposition that discipline cannot be imposed upon employes given such "Catch 22"
With respect to the claim that the grievant did not work promptly to resolve citizen
supervisory complaints, the Union submits that virtually all of these complaints were
and concerned a relative of a Village official or the supervisor's own street. It points out
is a dearth of evidence that citizens in general believed the grievant was slow to respond. It
that the problems stemmed from the supervisor's dislike of the grievant or the failure of the
to hire enough workers to perform the work needed. It insists that the Village made
demands upon the grievant by adding Sewer Inspector duties at the same time other employes
It argues that the supervisor's officious style was designed to put the grievant into impossible
situations where he would always be guilty of something. It maintains that three employes
required to maintain the level of service but the Village refused to hire the help it needed and
discipline for not doing the work of three is simply unjust.
The Union insists that the charge that the grievant's being faulted for not rigidly
scheduling procedures are largely irrelevant to a one-man operation. The Union observes the
to call an empty clerk's office to report a change in starting time, or to change the time of
or break have no demonstrated impact on any operation of the Village. It notes that
rebuffed exaltation of the trivial by officious and bureaucratic-minded supervisors. It
there is no evidence that the grievant's rearrangement of breaks or starting time was part of a
to claim pay for time not worked or to avoid work or that it caused an inconvenience to any
operation. It terms these so-called offenses as unreasonable restrictions having no purpose
hobble the grievant's work and then to find fault with him afterwards.
With respect to the failure to perform his primary duties required by the State DNR,
refers the State's environment engineer's opinion that the grievant was dedicated to the
operation of drinking and wastewater systems to comply with the appropriate rules and he
delayed reporting not to be a deficiency worthy of formal enforcement. The Union finds that
it is not
surprising that the Village reached the opposite conclusion because it is not the safe operation
system that is important, but rather, the paperwork. The Union points out that there was no
of a single adverse consequence to the Village from the minor delays in keeping certain
forms and it
asks the undersigned not to champion form over substance but to apply the common sense
of the State engineer.
The Union argues that there is substantial evidence that anti-union prejudice played a
the grievant's discipline. It points out that there was an explicit statement made in the
context of an
organizing drive that the grievant could be fired for organizing a union. It observes that the
this official is one of the grievant's contemporary accusers. The Union refers to the
record for his first 23 years until he mentioned organizing a union. It claims the Village
a pretense at progressive discipline and attempted to discharge him under a blunderbuss of
It claims that the grievant was under surveillance and that two incidents were "set ups"
entrap the grievant using management members or their relatives. It concludes that these
show that the decision to suspend the grievant was based, in part, on anti-union reasons. It
the grievant was not guilty of any offense and he should be compensated for his unjust
with full back pay and benefits.
The Union has raised an issue that involves a statutory violation of
Secs. 111.70(3)(a)1 and
3, Stats. There was no evidence that a complaint of prohibited practices regarding the
suspension has even been filed and thus there has been no deferral of the issue to the instant
arbitration. It follows that the undersigned has no jurisdiction to determine whether
animus played a part in the grievant's suspension. The cases cited by the Union in support
position, Antilles Consolidated School System, 110 LA 136 (Kanzer, 1998) and University
of Minnesota, 111 LA 676 (Neigh, 1998) contained contractual language prohibiting
based on union activity. Inasmuch as the parties have not yet reached agreement on a
bargaining agreement, there is no enforceable contractual provision prohibiting discrimination
on union activity. Additionally, the parties stipulated that the issue before the undersigned
whether there was just cause for the suspension. Thus, the undersigned lacks any authority
whether the suspension was based in part on protected union activity.
The Village has offered many definitions of "just cause" which other arbitrators have
the cases before them. Again, because the parties do not have a contract, there is no
definition of just cause nor is there any listing of the steps in a progressive disciplinary
there might be, say similar to the Village's handbook. An amalgam of the various
definitions can be
stated as whether the Village proved misconduct on the part of the grievant, and under all the
circumstances, is the discipline appropriate.
The Village offered evidence that the grievant failed to perform certain duties as
the Village or his supervisor. The Village has shown that the grievant did not flush the
and cycle the valves and make a record of it. On October 20, 1995, the Village had a PWS
survey performed by the DNR with the assistance of the grievant and certain deficiencies
by letter of January 10, 1996, including requiring maintenance records with valve and
information. (Exhibit 7) The record keeping was
to be established by March 31, 1996. (Exhibit 7) The DNR even attached
forms for this use and the
grievant was aware of these as well as the requirements. At the February 5, 1998
meeting, the grievant updated the Board on the maintenance report and the Board passed a
that a copy of reports and correspondence would be given to the Clerk by the grievant to
maintain. (Exhibit 9) On May 4, 1998, the grievant was given a letter of reprimand
for, among other
things, failing to give the Clerk the reports and correspondence. (Exhibit 3) On
September 18, 1998,
the grievant was given a memo to give all reports and records to the Village Clerk. (Exhibit
letter of suspension dated December 4, 1998, indicated that the grievant had not
submitted the reports
nor had the grievant performed hydrant flushing as required by the DNR. (Exhibit 2) The
reliance on Mr. Thon's letter to Mr. Novacek dated March 29, 1999
(Exhibit 14), is not persuasive
because it is hearsay, and secondly, Mr. Thon conducted the 1995 survey which resulted in
directing the Village to take certain action in a timely fashion, and then states that delayed
was not worthy of formal enforcement action. (Exhibit 4) Obviously, Mr. Thon is speaking
by the DNR against the Village and it is noted that as of March 23, 1999, the reports
(Exhibit 14) The Village apparently took action so that the reports became current. In any
the evidence establishes that the grievant's performance as directed by the Village was not up
standards made known to the grievant and so this misconduct has been proven by the
The Village has asserted that the grievant was insubordinate in that he failed to
assigned duties. Insubordination is an offense for which severe discipline may be imposed.
Insubordination is defined by the Village, citing a number of arbitration decisions.
involves a direct order from a supervisor and a refusal of that order, other than on grounds
morals or illegality, and a warning of the consequences of failing to follow the order. It is
direct affront to the authority of the supervisor. For example, say a custodian is told to
sweep up the
floor, a normal duty, and he flatly refuses and after told of the consequences, he still refuses.
supervisor leaves and the custodian changes his mind and sweeps the floor. On the other
custodian is told to sweep the floor and says "yes, sir," and after the supervisor leaves, he
sweep the floor. The first case would be insubordination as it directly challenges the
second is not insubordination even though the work is done in the prior case but not the
latter would be neglect of duties. The evidence in this case is not your classic
certainty borders on it. The evidence firmly establishes a neglect of duties.
The Village established a work order system whereby work orders were given the
and he was to complete the work order and sign it indicating it was completed. The Union
exaggerates by referring to this system as "intensely bureaucratic" and "numerous lengthy
memoranda" and "bullying tactics." The Village acted in an appropriate manner to give the
work orders which he was to sign off when completed. The Village is small and the
a full-time job elsewhere, so this system was neither bureaucratic nor burdensome but
reasonable. The various memoranda were short. (Exhibit 5) The memoranda were
numerous because the grievant never performed
them requiring repetition of the same memo or the grievant did not sign off and return
work order. This alone is indicative of the fact that the grievant failed to perform assigned
The evidence established that the grievant continued to work overtime contrary to
from his supervisor and continued to spend time at the new sewer addition contrary to the
of his supervisor. (Exhibits 5 and 8) The record establishes that the grievant apparently did
any supervision. Perhaps he had none for over twenty years and did not adjust to the change
management style. The grievant for the most part simply ignored his supervisor and
duties as he deemed appropriate. The grievant apparently failed to realize that everyone has
and while he might not agree with the directives of the supervisor, he had to comply where
was within his normal duties and did not involve health or safety or other concerns that
legitimize a refusal to follow the instructions. A clear example is the library window. On
1998, the grievant's supervisor sent the grievant the following memo: "It has been reported
that an upper window in the Library has been broken and needs to be repaired. Thank you."
were no instructions on how or when to do it. The grievant argued it was unsafe, yet the
could have decided how to do it so it would be safe whether it was to build a scaffold or use
picker. The grievant was reminded of the window on June 15, 1998, and was asked to
check if it
could be repaired from the inside. The grievant did nothing. On August 16, 1998,
two months later,
the grievant was instructed to board the window up from the inside. On August 31,
grievant was directed to fix or secure the window by September 3, 1998, and it was
then boarded up.
On October 12, 1998, the grievant was told to remove the window and replace it with
grievant never did this. Here, a minor repair within the job duties of the grievant was left to
grievant's discretion as to how and when to do it and due to the grievant's failure to do so,
instructions became more specific both as to how to do it and when. The grievant cannot
that supervision became closer than it previously was because he brought this on himself.
examples could be given but there is sufficient evidence in the record that the grievant failed
perform duties as directed and discipline was warranted.
Having concluded that discipline was warranted, the next issue is whether there was
for the quantum of discipline imposed. As noted earlier, the contract has not been agreed to
are no guidelines as to the amount of discipline for offenses. Generally, the concept of "just
provides for progressive discipline which is corrective rather than punitive. The concept of
progressive discipline is that except for major offenses such as theft, selling illegal drugs,
discipline will follow in increasing amounts, ultimately resulting in discharge. The theory is
small amount of discipline will correct an employe's behavior, and if not, greater discipline
if that is unsuccessful, the employe cannot be salvaged and dismissed is appropriate. In the
case, the grievant had a written reprimand and was then given a 30-day suspension. The
justifies this on the basis that the grievant engaged in a pattern of conduct over a period of
that 30 days was appropriate. The problem with this argument is that an employer cannot
transgressions to build up so that it has a sufficient number of offenses to justify a
severe penalty. In
the instant case, the grievant should have been given discipline at a lower amount after he
the same conduct that resulted in the written reprimand. The grievant may have realized the
of his ways had he been given a five- or ten-day suspension early on when his conduct did
improve after the May 4, 1998 letter of reprimand. Additionally, the delay and failure
to take prompt
action may have given the grievant the impression that the Village condoned or did not
grievant's failure to perform as directed serious enough to warrant discipline. In any case,
suspension is too severe when taking into account the failure to give any intermediate
the offenses continued over a long period and each one taken by itself would not be serious
to warrant a severe penalty. Just cause requires that the penalty fit the crime. Given the
23 years of service and only a written reprimand, the undersigned concludes that just cause
be limited to a ten-day suspension without pay. The grievant's failure to properly perform
duties as directed in a number of areas warranted a ten (10) day suspension which should be
to put the grievant on notice that future conduct of a similar nature will result in greater
Based on the above and foregoing, the record as a whole and the arguments of
undersigned issues the following
The Village had just cause for a 10-day suspension without pay of the grievant, but
the 30-day suspension. The Village shall reduce the 30-day suspension to a 10-day
without pay, and the grievant shall be made whole for the other 20 days.
Dated at Madison, Wisconsin, this 11th day of June, 1999.
Lionel L. Crowley, Arbitrator