BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
IOWA COUNTY EMPLOYEES, LOCAL 1266,
AMERICAN FEDERATION OF STATE, COUNTY
MUNICIPAL EMPLOYEES, AFL-CIO
IOWA COUNTY, WISCONSIN
Mr. Michael J. Wilson, Representative at Large, Wisconsin
Council 40, AFSCME, AFL-CIO, 8033
Excelsior Drive, Suite B, Madison, Wisconsin 53717-1903, for Iowa County Employees,
American Federation of State, County and Municipal Employees, AFL-CIO, referred to
below as the
Bell, Gierhart & Moore, S.C., by
Attorney Mark B. Hazelbaker, 44 East Mifflin Street, P.O. Box
1807, Madison, Wisconsin 53701-1807, for Iowa County, Wisconsin, referred to below as
Employer, or as the County.
The Union and the Employer are parties to a collective bargaining agreement which
effect at all times relevant to this proceeding and which provides for the final and binding
of certain disputes. The parties jointly requested that the Wisconsin Employment Relations
Commission appoint an Arbitrator to resolve a dispute filed on behalf of Mitchell
is referred to below as the Grievant. The Commission appointed Richard B. McLaughlin, a
of its staff. Hearing on the matter was held on April 26, 1999, in Dodgeville, Wisconsin.
transcript was made of the hearing. At the close of the hearing, the parties mutually
I draft findings of fact, then contact them for the submission of their closing arguments. I
findings of fact on May 3, 1999. By June 11, 1999, the parties submitted their closing
with a statement that my draft findings of fact were acceptable.
The parties stipulated the following issues for decision:
Did the County have just cause to suspend the Grievant,
Mitchell Zablotowicz, for five days
without pay for the incident which occurred on August 31, 1998?
If not, what is the appropriate remedy?
ARTICLE 3 MANAGEMENT RIGHTS
3.01 The County possesses the sole right to operate the
County and all management rights
repose in it, subject only to the provisions of this contract and applicable law. These rights
but are not limited to the following:
A) To direct all operations of the County;
B) To establish
reasonable work rules and schedules of work;
C) To suspend, demote,
discharge and take other disciplinary action against employees
for just cause;
D) To layoff employees;
E) To maintain
efficiency of County operations;
F) To take whatever
action is necessary to comply with State or Federal law;
G) To introduce new or
improved methods or facilities;
H) To change existing
methods or facilities;
I) To determine the
kinds and amounts of services to be performed as pertains to
County operations; and the number and kind of classifications to perform such
J) To contract out for
goods and services subject to the following conditions: The
County agrees that no work will be transferred out of the bargaining unit while any
unit employees are on layoff, nor shall any unit employees be laid off as a result of a
decision to transfer work out of the bargaining unit, provided the decision to transfer
work out of the bargaining unit is a mandatory subject of bargaining;
K) To determine the
methods, means and personnel by which County operations are to
L) To take whatever action is necessary to
carry out the functions of the County in
situations of emergency.
3.02 The above rights shall not be used for the purpose of
discriminating against any
employee or for the purpose of discrediting or weakening the Union, and further, that the
shall be used fairly and reasonably.
ARTICLE 4 DISCIPLINE AND DISCHARGE
4.01 Just Cause: No employee shall be
disciplined or discharged without just cause.
4.02 Union Steward: A steward or officer of the
Union may be present when an employee
is being reprimanded by the Employer.
4.03 Limitations: Written reprimands will
remain in effect for a period of time not to
exceed eighteen (18) months; at the end of such period of time, it shall become null and
4.04 Personnel Files: Personnel files shall be
open to employee and officers of the Union
at all times. The Union shall indemnify and save the Employer harmless against any and all
demands, suits, and other forms of liabilities which shall arise out of any action taken by the
under this Section for the purpose of complying with the provisions of this
The Union filed grievance 5-98 on September 22, 1998 (References to dates are to
unless otherwise noted). The grievance form states the "Circumstances of facts" thus:
Per mowing incident Aug. 31st 1998 in which
employee received 5 days off without pay.
Employee feels he was performing his duties as instructed per Hiway Superintendent.
The grievance form states "The contention what did management do wrong?"
Local 1266 feels Art. 4 Sec. 4.01 was violated. In addition, per
Employees Handbook pertaining
to work rules page two, paragraph 3. Explaining purpose of disciplinary action is not
punish but to learn from mistakes and to improve performance.
The Iowa County Highway Commission Employee Handbook states, under the heading
RULES," the following:
The purpose of disciplinary action is to correct problem
situations. Disciplinary action is not
taken with the intent to punish, but to learn from mistakes and to improve performance
diminishing an employee's self-esteem. . . .
The grievance form seeks that the disciplinary notice issued to the Grievant be
withdrawn from his
personnel file, and that the Employer make him whole for losses traceable to the suspension.
Leo Klosterman is the Employer's Highway Commissioner, and issued the Grievant
response of the Transportation Committee (the Committee) to Grievance 5-98. The
response, dated October 26, states:
. . .
With respect to grievance #5-98, the Committee is satisfied, after
hearing your appeal, that the
County had just cause to suspend you without pay for one week. It is undisputed that you
a rented tractor to roll onto its' side by backing the tractor so that its' rear wheel dropped off
shoulder into a ditch. Fortunately, the tractor had a roll cage and you were uninjured.
tractor was damaged and repairs will cost the County between $2,000 and $3,000. The
agrees with the Commissioner that this accident was completely preventable. If you could
what you were backing into, as you said, you should have stopped the mower and got off to
the culvert area. You should not have been mowing in that manner in the first place. The
denied your grievance and found that the reasons stated in the letter imposing the suspension
The balance of the background to the grievance is best set forth as an overview of
Klosterman was not present when the Grievant was assigned to mow a section of
Highway B on August 30 and 31. During the afternoon of August 31, however, he was
the mower the Grievant was using had turned over while the Grievant was mowing around a
He spoke with the Grievant and the Grievant's direct supervisor, Donald Bach, on the
Klosterman learned that the Grievant had been assigned to mow the first swath along
highway as part of a two-man mowing team. The Grievant was using a four-wheel drive
tractor, which the County had rented from an outside vendor. The tractor pulled a
mower, which ran from the power take off (PTO) at the rear of the tractor. The mower unit
offset slightly from the right of the centerline of the tractor.
In the Spring of 1997, Klosterman reviewed State of Wisconsin mowing procedures
management team, which consisted of himself, Bach, who is the Employer's General Patrol
Superintendent and Roger Venden, who is the Employer's State Patrol Superintendent. They
to adopt, with Committee approval, a procedure by which the County would mow
a height of five inches, using teams wherever possible. Under this approach, right-of-ways
be mowed in two steps. The first swath would be from to the roadway's shoulder into the
right-of-way to the width of the mower's blade unit. The second, and if necessary, further
swaths would be
cut from the first swath deeper into the right-of-way. Where possible, the County would use
rear-mounted mowers only for the first swath. The following swaths would be cut by a
tractor with a side
mounted mowing unit. Such units typically have flail driven blade units, which add the
being mounted on a unit run by hydraulics. The hydraulic system permits an operator to
raise the unit
over obstructions. A rear-mounted PTO driven unit, like the one operated by the Grievant
30 and 31, is fixed to the tractor, and must be driven around obstructions. The side
mounting of a
unit can also make the unit more stable on an incline. On August 30 and 31, the Grievant
assigned to mow the first swath, to be followed by Roger Parman, who was operating a
wing-mounted mower. Klosterman felt the policy adopted by his management team in the
Spring of 1997
had been communicated to employes through the instructions of their direct supervisors and
the repetition of work assignments.
Bach was responsible for investigating the incident on-site. Bach filed a written
his investigation with Klosterman on August 31. His statement reads thus:
I received a call from (the Grievant) about 2:00 PM, that he
wanted to see me. He stated that
his location was on B about 1 mile east of 80. . . .
Upon arrival, I saw that a rented (Zetor)
was on its side in the ditch. First question asked of
(the Grievant) was if he had any injuries. I asked (the Grievant) because he was the one who
me and he also appeared (agitated). The other (Zetor) and both Tigers were also there. The
was on (its) right side about 15 ft. from a 6ft culvert that had running water. The immediate
(swampy) and the top 2ft of the cab was laying in mud. The top was about 1ft lower (than)
wheels. Immediately behind the mower, the weeds were about 5 ft high. The area between
and rear tires was (very) steep and a large depression could be seen. Tire tracks were very
from the point he started backing to the area where the unit started sliding. . . . When I went
the bank to check the
unit, I stepped in a 12 to 18 in ditch just
over the edge of the gravel. That ditch was not (visible)
due to the tall grass. It led to the large depression that I saw between the tires.
I asked (the Grievant) what happened. He stated that he had
made a cut along the blacktop
and then was backing up to make a 2nd cut, as the weeds were very tall
right there. The unit started
to slide, hit the bottom, and rolled over.
Greg . . . was mowing in a Tiger mower behind (the
making the 2nd cut. There is
a small hill about 5-600 yards from where the accident happened and Greg was on the other
the crest. He said he did not see (anything until) he got closer.
I contacted Leo and advised him of the situation, and that a
wrecker would be needed.
Terry's towing was called. Tom Pratt was also contacted . . . I was concerned about starting
to get it . . . back to the shop. When Tom arrived, he started it and it ran OK. It was then
. . and taken directly to (Mueller's).
Right side mirror, door window, rubber around window,
(possible hydraulic) leak on back
right side, and battery fluid leak. No estimate to total damage as of 3:00 PM on 9-1-98.
The next morning, Klosterman met with the Grievant. A dispute arose concerning
what, if any, union
representation the Grievant should have. That dispute has been resolved and plays no role
Klosterman summarized the meeting in a memo, which he and the Grievant signed. That
(The Grievant) was mowing with a rented tractor . . . They were
mowing on CTH B east of Hwy
80. (The Grievant) was mowing outside edge. There was a drop off about 15 to 20 ft. from
There were tall weeds next to culvert. (The Grievant) backed into culvert area to get second
back wheel of tractor dropped into a ditch, gave away and slid down into hole and tipped
right side. There was a lot of mud in area. Greg Parman was a little west of (the Grievant).
Grievant) reported no injuries except like a paper cut on right forearm. (The Grievant) was
seatbelt and stated that it worked. This accident happened about 1 p.m. . . .
After interviewing the Grievant, Klosterman spoke with Bach, Venden, Pratt and
Parman. He also
reviewed the Grievant's personnel file. The file includes a disciplinary incident which
resulted in a
grievance arbitration award. That award, iowa county, ma-10073 (burns, 4/27/98) states:
The Employer presents the
Is the grievance arbitrable?
The parties stipulated to the
following statement of the issue:
Did the Employer have just
cause to issue a written reprimand to the Grievant,
Mitchell Zablotowicz, on August 26, 1997, and/or discipline the Grievant, Mitchell
per the September 12, 1997 Iowa County disciplinary notice?
If not, what is the
. . .
1. The grievance is arbitrable.
2. The Employer has just cause
to issue a written reprimand to the Grievant, Mitchell
Zablotowicz, for repeated objection to orders and directions given.
3. The Employer did not have
just cause to issue a written reprimand to the Grievant for
refusal to start work before a supervisor was present or for poor preparation for job signing -
4. The Employer does not have
just cause to demote the Grievant to a Group II - County
Patrolman Helper and to place the Grievant on a ninety-day probationary period.
5. The Employer is to immediately remove the Employee
Disciplinary Notices dated
August 26, 1997 and September 12, 1997 from the Grievant's personnel file and modify
accordance with this decision.
6. The Employer is to
immediately return the Grievant to the Patrolman position that he
occupied on August 20, 1997, and to make the Grievant whole for any wages or benefits lost
result of the unjust demotion and placement on probation.
The file included a written reprimand for "Unsatisfactory work performance" traceable
to an incident
which occurred on July 21. Roughly speaking, the alleged misconduct concerned the
failure to document the removal of County materials from its quarry and his time in using
materials to perform repair work on a State highway. Such material and work must be
to bill to the State. The reprimand also concerns the conduct of the Grievant and another
when the oversight was brought to their attention by management. The Union appealed that
discipline to arbitration, which, as of the date of this decision, is still pending. Klosterman
reviewed the Employee Handbook, which he found included the following:
1. Insubordination, including disobedience, failure or
refusal to follow written or oral
instructions of supervisory authority or to carry out work assignments.
2. Neglecting job duties or responsibilities.
. . .
6. Failure to observe all safety rules and practices
including, but not limited to, the use of
protective equipment and clothing, or in the operation of vehicles and equipment.
. . .
8. Poor performance. . . .
Any violation of the above will be
subject to the following disciplinary action:
Offense: remainder of day off without pay
Offense: appear before the Transportation Committee and possible
. . .
On September 8, the Grievant appeared before the Committee to give an account for
actions of August 31. Klosterman did not make a specific recommendation of the
response the Committee should take. He did, however, share with the Committee, the
results of his
own investigation. The Committee determined to suspend the Grievant for five days.
agreed with this conclusion and documented it in a memo headed "IOWA COUNTY
DISCIPLINARY NOTICE." That memo is dated September 16. The form consists of a
printed form entries with blanks to be filled out to detail the specific circumstances. One of
entries is "Consequences should an incident occur again". That form entry contains no
Another form entry is headed "Type of violation". Under this entry are the following
entries, with blanks to be checked where appropriate: "Attendance & Punctuality";
Early"; "Rudeness to co-workers/customers"; "Unsatisfactory work performance";
"Use of material/equipment"; "Insubordination"; "Violation of safety rules"; "Working on
matters"; "Abuse of sick time"; "Failure to follow instructions"; "Sexual harassment"; and
Klosterman checked the following entries: "Unsatisfactory work performance";
of material/equipment"; "Insubordination"; and "Failure to follow instructions". The notice
included the following narrative:
. . .
You were to be the lead mower responsible for cutting the first
swath with the rear-mounted
mower. The second operator of the side-arm mower was to cut the second swath, which he
accomplish by remaining on the shoulder of the road. For some reason, you decided to cut
second swath with the rear-mounted mower. In deciding to cut the second swath, a wheel of
tractor fell off the edge of the road's shoulder, causing the tractor to tumble over.
were belted into the restraining harness on the machine, and the cab over the seat prevented
having any serious injury. This decision to cut the second swath with a rear-mounted mower
beyond negligent, it amounted to you consciously and intentionally failing to follow the
that any person operating heavy equipment would deem necessary. You also disregarded
mowing instructions which was to cut the first swath. This conduct is parallel to and similar
behavior, which was determined to have existed in the April 27, 1998 arbitration decision. .
. . In this
mowing incident, you have chosen to be unproductive, and to exhibit your lack of
failure to follow work instructions by handling your work improperly. You should not have
mow a second swath with your rear-mounted mower. Given this level of misconduct I have
a suspension for five working days off . . .
Klosterman stated that the suspension was "proportionate and fair" for the misconduct.
He felt the
accident was avoidable if the Grievant had followed the 1997 policy and made the first swath
backing into the culvert area. Once the Grievant had determined to ignore the policy,
thought his failure to look into the tall grass to gauge the soundness of the ground
situation. He felt the Grievant had difficulty complying with departmental policy, and
needed a strong
Klosterman did not seek to determine whether the Grievant had mowed this section
August 31. His familiarity with the terrain was, Klosterman noted, irrelevant to the flawed
manifested by the accident. He felt that the Grievant operated the mower safely until he
back into tall weeds to mow around the culvert. The disciplinary form includes an entry for
"Violation of safety rules," but Klosterman felt that the entries he checked were sufficient to
Klosterman acknowledged he rolled a County tractor in 1989 or 1990. He was
mower with a side mounted mower on a State highway section. The side mower was on the
of an incline when its rear wheel sank into some loose fill, causing the unit to roll. He was
before the Committee to explain the incident. He did so, and received no discipline.
Gollon is a County Board Supervisor and a member of the Committee. Gollon
regularly in his bait and fish farming enterprise. The Zetor unit rolled by the Grievant was,
estimation, superior to his own equipment. He noted he has watched the Grievant operate
mowers in the past. In an incident occurring last June or July, he confronted the Grievant
what he viewed as careless operation of the equipment. He assumed the Grievant would
incident to County management, but learned after the incident posed here that the Grievant
done so. Gollon acknowledged it affected his own view of the severity of the conduct
here, but could not specifically recall if he brought the matter to the Committee's attention
the implementation of the five day suspension.
Bach was the Grievant's immediate supervisor on August 31. He noted that County
calls for a rear mounted mower to make an initial swath before additional swaths are taken
mower with a wing mounted unit.
When Bach arrived on County B on August 31, he found the Zetor on its side, with
of the cab stuck three to four inches in mud. He hesitated to offer his own opinion regarding
the Grievant had failed to exercise proper care. He noted his role in the matter was
investigative. He did not express to the Committee an independent opinion on the level
if any, to be meted to the Grievant. Rather, he put the results of his investigation into their
It would not, he noted, be unusual for an operator of a rear-mounted mower to make a
at a right-of-way. This would not, however, be standard procedure, and was not necessary
Parman was assigned on August 31 to follow behind the Grievant. He did not think
unusual for the lead mower to back up to a culvert to alert him to its location. He noted it
to the Grievant to determine whether to make a second swath to cut around a culvert.
The Grievant noted that he and Parman cut as a team on the same road section on
and 31. On August 30, he cut the first swath and then made a second cut around signs and
He stated he believed Bach had watched him cut around signs. He noted that he has four
experience mowing grass for the Employer, and that he routinely backs up to cut around
He has neither been instructed on how to cut around culverts nor been warned not to back up
so. Neither he nor Parman had any experience mowing this section of road prior to August
On August 31, he and Parman first cut the side of the road opposite the accident site.
noted he backed up to mow around the end of the same culvert on the opposite side of the
before moving across the road. After he and Parman had crossed the road, he noted that he
quite a distance ahead of Parman, and decided he could do some additional cutting to permit
to stay within sight. He acknowledged that he was not able to see far down the incline
leading to the
culvert, and that he chose not to inspect the area. He noted he did not, as a rule, get out of
mower to check out terrain. Rather, he put it in low gear at low idle and slowly backed into
to get a feel for the terrain. He was, throughout the day, strapped into a safety harness. As
backed into the incline, he felt the rear wheels start to slide, and then held on while the unit
Only the harness and good luck prevented serious injury. Only after he was able to crawl
cab, did he see the terrain which he had fallen into. There had been a washout roughly
from the culvert. As a result, a sinkhole had been created, which had been overgrown with
He testified that he had never been informed that Employer policy was to have the
make only one swath. He did not willfully disobey any instruction, and although he was not
to be disciplined, he was shocked to be suspended for five days. He was not sure the
cared to learn his side of the incident. He noted he did not view the July incident to be
decided, nor did he view the 1997 arbitration award to be fully resolved.
Highway B is typically assigned to Kitelinger for maintenance and mowing. He is
with the road, but on August 31 was assigned to work on a paving crew. Kitelinger noted
he mows, he typically mows a first swath, and routinely backs up to culverts. He has never
instructed not to do this. He added that he rarely, if ever, gets off of his mower to inspect a
before mowing it. Kitelinger, as the Grievant, did not view sinkholes to be unusual in the
the County mows.
The Union and the County stipulated that two other unit employes, Mark Olson and
Dobson, would have given testimony to the same effect as Kitelinger. The parties also
the submission of a decision of the Labor and Industry Review Commission, dated February
In that decision, a two person majority found that "in week 38 of 1998 the employe's work
suspended, but not as a disciplinary action for good cause connected with his work, within
meaning of Wis. Stat. (sec.) 108.04(6)."
The parties also submitted evidence concerning prior accidents involving unit
is undisputed that the Employer reviews accidents on a case by case basis to determine what,
discipline to impose.
Further facts will be set forth in the
The Employer's Position
The Employer notes that the grievance does not pose "an open and shut case" and
facts will not support a conclusion that "this discipline was excessive and the County
operations improperly." Noting that this "is not a case where the employee involved is
doing the work," the Employer asserts that the difficulty it faces with the Grievant is that
for attention is so great that he chooses to seek it by engaging in foolish, risky behavior."
specifically, the Employer argues that the Grievant took the "simple, routine work task" of
the first swath, and turned into the high risk endeavor to back a rear mounted mower into a
depression, hidden by tall weeds. Nor is this a case where the Grievant "was simply trying
to get his job done." Rather, he "simply didn't care what happened," and put himself and
equipment in danger.
Against this background, the five day suspension cannot be considered "harsh."
Rather, it "is
actually quite consistent" with his work record and the prior arbitration decision. In each
Grievant "is acting out his inability to get along with supervisors and authority by engaging
in self-destructive behavior." This is demonstrated by the evidence, which manifests that
absolutely no reason why (the Grievant) needed to back up the tractor." The discipline
an appropriate response to an employe "who consumes (a) vastly disproportionate amount of
management time." It sends the appropriate signal that he will "either . . . learn to do his
job and do
it in a manner which is not calculated to gratuitously seek attention, or he will wind up
without a job."
That the employe handbook is need of revision can supply no defense for his action.
Employer concludes that "the grievance should be denied and the discipline sustained."
The Union's Position
The Union contends that "(j)ust cause requires the Employer to prove the charges
grievant by 'clear and convincing proof.'" Noting that arbitrators hold different views on
the Union concludes that the 'clear and convincing proof' standard has been adopted by many
arbitrators "as a compromise between the criminal standards of proof 'beyond a reasonable
and a mere 'preponderance of the evidence.'" More specifically, the Union argues that the
establishes "that the grievant and other Iowa County Highway Department employees have
discretion when assigned the first cut along the right-of-way to also make a second cut
culverts." Testimony establishes that other employes operate mowers in the same fashion as
Grievant did on August 31. Since there is "no policy or rule or direction communicated by
management to the grievant or other department employees forbidding a second cut, around
by the mower operator assigned to a rear-mounted mower," it follows that the Employer has
to demonstrate cause for its discipline.
Beyond this, the Union argues that the September 16 notice of discipline "is totally
unsupported by the evidence." A review of the evidence establishes that it "is more than
the grievant was not charged with a violation of safety rules but instead was alleged to have
committed insubordination and a host of other offenses." A more reasoned view of the
that "the employer has subjected the grievant to unfounded and excessive discipline," and has
consistently failed "to live up to the philosophy of its own employee handbook."
In the Grievant's line of work "accidents do happen . . . particularly when mowing
treacherous right-of-way along county highways." The evidence shows no negligence, much
insubordination, by the Grievant. Since he acted "in good faith" and "was not guilty of
the Union concludes that the grievance should be sustained and that the "Arbitrator should
make whole remedy including the purging from the grievant's personnel file any and all
to the mowing incident of August 31, 1998."
The stipulated issue is whether the County had just cause to suspend the Grievant for
days. Because the parties have not stipulated the standards defining just cause, the analysis
my opinion, address two elements. First, the County must establish the existence of conduct
Grievant in which it has a disciplinary interest. Second, the County must establish that the
imposed reasonably reflects that interest. This does not state a definitive analysis to be
contracting parties. It does state a skeletal outline of the elements to be addressed and relies
parties' arguments to flesh out that outline.
The Grievant's conduct on August 31 is the focus of the Employer's disciplinary
Klosterman's September 16 disciplinary notice states the interest to extend to "Unsatisfactory
performance; Carelessness; Use of material/equipment; Insubordination; and Failure to
instructions." As detailed in testimony, these stated reasons form three distinguishable bases
discipline. The categories "unsatisfactory work performance," "carelessness," and "use of
material/equipment" are essentially different ways of stating the Grievant acted negligently on
31. This asserts the Grievant failed to generally exercise judgment which could reasonably
expected of an experienced patrolman. The category "failure to follow instructions" is
distinguishable from the category "insubordination." "Failure to follow instructions" states
conduct is gross negligence, since the Grievant failed to follow specific work instructions.
"Insubordination" states that his failure was a willful disobedience of those instructions.
The evidence supports only the assertion that the Grievant acted negligently on
This conclusion can be based on the Grievant's testimony standing alone. He acknowledged
routinely backs a rear mounted mower to trim around culverts; that he had no clear view of
of this culvert or the quality of the ground around it; and that he did not check the culvert
backing his mower toward it. He acknowledged that when he felt the ground give beneath
one of the
rear wheels, he experienced the sickening sensation of the tractor tipping beyond its center of
From that point on, the severity of damage to the Grievant and to the tractor was out of his
The judgment that placed the tractor in that position cannot be characterized as anything
That the Grievant or other unit or non-unit employes may have acted similarly does
the County's disciplinary interest in this conduct. It is undisputed that the Grievant's conduct
unnecessarily put his equipment and, more significantly, his safety at risk. Any equipment
is employed not simply to operate machinery but to exercise the discretion which makes the
equipment valuable. It cannot be persuasively asserted that an employer's history of
unnecessarily unsafe work creates a right to assign unsafe work. It can no more persuasively
contended that employe exercise of flawed judgment creating unsafe work creates an employe
to exercise flawed judgment. The Grievant's personal interest in avoiding discipline cannot
the overriding unit-wide interest in the enforcement of safe working conditions.
The remaining bases for the discipline have not, however, be proven. The asserted
to follow instructions" has no persuasive evidentiary basis. Klosterman noted that his
team set the policy on mowing right-of-ways in two swaths in the Spring of 1997. This
he noted, been communicated to workers through his Patrol Superintendents and through the
repetitive nature of the mowing process. That the unit understood the two swath process
however, of establishing that the policy included a strict prohibition against backing the first
mower around obstructions. There is no evidence that either Patrol Superintendent
this to unit employes. More specifically, Bach was the Grievant's supervisor on August 30
There is no evidence he specifically instructed the Grievant not to back the mower to cut
obstructions. The record shows, at most, that the Grievant was assigned to cut the
was generally expected to exercise good judgment in doing so. This falls short of
County supervisor gave the Grievant a specific instruction which he failed to follow.
Insubordination is the most serious allegation made against the Grievant.
is a "deliberate defiance of . . . supervisory authority." Bornstein and Gosline, Labor
Arbitration, (Matthew Bender, 1996) at Sec. 20.04. Insubordination is not
uncommonly treated as
a capital offense in labor relations, because it connotes the willful attempt to undermine the
management of a work place. To establish insubordination in this case, the County must
that the Grievant was issued, and understood, a clear, work-related order given by a known
supervisor. See, for example, Roberts' Dictionary of Industrial Relations,
(Third Edition, BNA,
As noted above, however, there is no persuasive evidence that the Grievant was
ordered not to make a second cut to mow around obstructions. Bach noted that the second
attempted by the Grievant on August 31 was unnecessary and not standard procedure, but
short of establishing the clear work order necessary to demonstrate insubordination.
In sum, the County has established that the Grievant failed to exercise proper
he backed down the grass-covered incline on August 31. This flawed judgment manifests
but not gross negligence or willful misconduct.
This poses the second element of the cause determination. The issue thus becomes
a five day suspension reasonably reflects the County's proven disciplinary interest. While it
apparent the Employer uses a system of progressive discipline, the components of that system
unclear. The Employee Handbook specifies, on its face, a two-step system, starting with
of day off without pay" as the sanction for a first offense of work rules. The second step
encompass further steps since it puts the employe before the Committee, but states no limit
Committee discretion, which extends to "possible termination." The September 16 notice
states a five-step system, ranging from oral reprimand to discharge, but the fourth step is the
Committee, which exercises discretion over "possible discipline up to and including
The evidence posed here does not clarify which, if either, of these systems governed
August 31 incident. This ambiguity in the progressive discipline system complicates the
of the second element of the cause determination. Ultimately, the discipline must reflect that
County has proven a disciplinary interest in the August 31 conduct but has not proven the
alleged in the September 16 notice of discipline.
The evidence falls far short of the conduct noted in the memo to the September 16
More specifically, the evidence does not establish his conduct was "beyond negligent." Nor
establish he "consciously and intentionally" failed to follow procedure, or acted "parallel to
similar to the behavior . . . determined to have existed in the April 27, 1998 arbitration
Klosterman's memo repeatedly emphasizes the alleged willful aspects of the Grievant's
but the proven misconduct was negligent, not willful in nature.
In the absence of proof of deliberate conduct, the five-day suspension cannot be
reasonable. The length of the suspension presumably reflected the severity of the
in turn rested on the County's perception of a deliberate disregard of instructions.
The significance of the Grievant's negligence must not, however, be minimized. He
himself and his equipment at considerable peril. As noted above, the actions of other
cannot excuse this. Neither an employe nor the Employer can reasonably assert a right to
unnecessarily put employe safety at risk. The Award entered below authorizes the County to
the Grievant a written reprimand for the flawed judgment he exercised on August 31, when
to survey questionable ground prior to backing a mower onto it. This discipline, in my
unpersuasively repeats a level of discipline affirmed in a prior arbitration award. I do so,
because the significance of a suspension is unclear in light of the County's progressive
system. Because much of rationale for the five day suspension turns on the asserted, but
willful nature of the misconduct, I am reluctant to permit a suspension. On this record, a
suspension may be equivalent to a five day suspension, since either arguably puts the
Grievant on the
threshold of discharge. While this may be appropriate on another record, it would ignore
alleged willful misconduct is unproven on this record. The written reprimand thus stands as
of two evils.
The written reprimand has the virtue of permitting the County to clearly state its
policy to the Grievant. If he is to be required to exercise reasonable discretion before
mower in the future, and to view questionable terrain before backing into it, the County may
in the reprimand. If he is to be precluded from backing the mower at all in the future, the
say so. The County is the policy making body, and the Award does not attempt to intrude in
area, except to require the County to clearly specify the inappropriate behavior committed by
Grievant on August 31 and how he is to modify that behavior in the future.
The Award does not attempt to address the broader arguments of the parties
clearly fraying relationship between the Grievant and his supervisors. Whether, as the
the Grievant demands a disproportionate amount of supervision that will lead to his
termination is too
broad a point to be resolved here. The Grievant's unwillingness to unequivocally
role of his own flawed judgment on August 31, however, lends troublesome support to the
aspects of the County's assertion. Whether, as the Union asserts, a pattern of excessive
exists is too broad a point to be addressed here. The County's characterization of the August
misconduct as willful behavior, however, lends troublesome support to the darker aspects of
Union's assertion. In any event, the Award seeks no more than to make the broader issues
the parties manageable. The written reprimand should state specific behavior that, if
lead to further discipline. The quality of the Grievant's behavior in response to the
determine the broader implications of this proceeding.
The County did not have just cause to suspend the Grievant, Mitchell Zablotowicz,
days without pay for the incident which occurred on August 31, 1998.
As the appropriate remedy for the County's violation of Articles 3 and 4, the County
make the Grievant whole by compensating him for the wages and benefits he would have
for the five day suspension noted in the September 16 Disciplinary Notice. The County shall
any reference to the suspension from his personnel file(s).
Because the County had just cause, within the meaning of Articles 3 and 4, to
Grievant for his conduct on August 31, it may amend his personnel file(s) to note the
issuance of a
written reprimand to him for that conduct. The reprimand should state the specific behavior
Grievant committed on August 31 that prompted the reprimand, how he is to modify that
in the future, and may specify the consequence of repeating that behavior.
Dated at Madison, Wisconsin, this 1st day of July, 1999.
Richard B. McLaughlin, Arbitrator