BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
IOWA COUNTY HIGHWAY DEPARTMENT
EMPLOYEES, LOCAL 1266, AFSCME,
(Termination of B.S.)
Mr. Michael J. Wilson, Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, 8033 Excelsior Drive, Madison, Wisconsin, appeared on behalf of the
Bell, Gierhart, Moore, S.C., by Attorney Mr. Mark B.
Hazelbaker, 44 East Mifflin Street, Madison, Wisconsin, appeared on behalf of
On December 2, 1998, Iowa County and the Iowa County Highway Department
Local 1226, AFSCME, AFL-CIO, requested that the Wisconsin Employment Relations
appoint William C. Houlihan, a member of its staff, to hear and decide a grievance pending
the parties. Hearing on the matter was conducted on February 19, 1999, in
A transcript of the proceedings was made and distributed by March 4, 1999. Post-hearing
submitted and exchanged. Reply briefs were waived by letter dated May 7, 1999.
Corrections to the
evidentiary record were made on July 20, 1999.
This Award addresses the termination of employe B.S., for the circumstances
temporary loss of his Commercial Driver's License.
BACKGROUND AND FACTS
B.S., the Grievant, had been employed by the Iowa County Highway Department for
under three years when he was discharged on August 25, 1998. S. regularly operated
of which required him to possess a driver's license, some of which required that he hold a
Commercial Driver's License. S. obtained a Commercial Driver's License at the outset of
employment with the County.
Mr. S.' birthday is June 5. His license came due for renewal on June 5, 1998. Mr.
that he was unaware that his license had expired, and further testified that he never received
of renewal. S. had a change of address and it appears from his testimony that whatever
license renewal was mailed was never forwarded to his new address. When Mr. S.' license
on June 5, 1998, it was not then renewed.
On the evening of August 20, 1998, S. was a party to a domestic dispute. The
Department was called, and the Grievant was arrested, and taken into custody. During a
review of his driver's license, the Sheriff's Deputy, Daniel Carey, discovered that the
license had expired. He so informed the Grievant, and cautioned the Grievant not to drive
expired license. Before the Grievant left the county jail, Carey reiterated his directive that
Grievant not drive with an expired license. The Grievant heard and understood Carey's
The Grievant was released from the county jail at 2:30 in the morning.
deputy's directive, the Grievant perceived a need to go to work the next morning, and did
Friday, August 21, the Grievant appeared for work at a starting time of 5:30 a.m. He told
no one of
his driver's license expiration. On Friday, the Grievant was assigned to operate equipment
requires a Commercial Driver's License, and was assigned work in Dane County. The
worked a normal work day on Friday, August 21.
On Monday, August 24, Leo Klosterman, County Highway Commissioner, was
by an employe, prior to the start of the workday, who advised Klosterman that that employe
a conversation with Deputy Carey and been advised that S. was without an Operator's
Klosterman talked with Don Bach, S.' supervisor, and advised Bach that he (Klosterman)
that S. may be without a Commercial Driver's License. Bach responded that S. was
assigned to work
on the back of a paver, work which did not require S. to drive. Bach had given work
out before 7:00 a.m., and had so assigned the Grievant. The conversation between Bach and
Klosterman occurred after that assignment was made, and the Grievant had left for the work
As it turns out, once the work crew arrived at the worksite, S. was reassigned to
equipment. On Monday, August 24, the Grievant drove two dump trucks. Bach first
fact on Tuesday morning when he reviewed employe time cards. Bach called
the Grievant at approximately 2:00 in the afternoon on Monday, August 24 to inquire
as to the
Grievant's Friday time card. The topic of the Grievant's driving license and/or restrictions
Klosterman began an investigation into the matter. He called the Department of
Transportation on Monday morning, and requested and received a printout of the Grievant's
license status. That printout reflected that the license had expired on June 5. Klosterman
talked with Deputy Carey, who confirmed that he had told B.S. that he had no license. It
was at that
point that Klosterman realized that B.S. had been without a driver's license and Commercial
License endorsement for the entire summer.
Klosterman had a regularly-scheduled meeting of the County Transportation/Highway
Committee scheduled for the evening of Monday, August 24. During the course of that
matter of S.' license expiration was brought to the Committee's attention. Following its
the situation, the Committee determined to terminate the Grievant. According to
greatest concern among Committee members was over the fact that following his arrest, the
knew that his license had been suspended, and determined to drive notwithstanding the
warning not to do so.
Klosterman met with the Grievant on Tuesday morning and terminated him by the
Due to your negligence of failing to renew
your CDL, as required as a condition of employment,
and by further gross negligence by putting Iowa County, Columbia County and Dane County
severe risk for wrongly and willing operating illegally County-owned vehicles, your
Iowa County Transportation Department is terminated as of 7:30 a.m., Tuesday, August 25,
No one from the Transportation/Highway Committee or departmental management
with the Grievant prior to his meeting with Klosterman on Tuesday morning. The Grievant
afforded no opportunity to present his side of the story or to offer explanations into what
The Grievant had intended to wait until the Department of Motor Vehicles came to
Thursday, August 27 to renew his license. It appears that the Department rotates its office
and that August 27 was the first time the DMV would be
in Dodgeville. Later on August 25th, following his termination, the
Grievant had a friend drive him
to Platteville, where he got his driver's license and CDL, renewed. He secured the renewal
payment of a fee. There was no other impediment to the renewal of his license.
Prior to this incident, the Grievant had no discipline. A grievance was immediately
protesting the Grievant's termination. The grievance points to Article 14 and requests the
to abide by that Article. The grievance was denied, and subsequently appealed. The
1998 response to the appeal, authored by Klosterman, outlines the Employer's perspective on
matter. That response provides:
This is in response to your grievance appeal concerning your
termination from the County for
failing to have the required Commercial Driver's License. Your license expired on June 5,
You did not renew it until late August, 1998. You were terminated when we learned that
been working for 81 days without a CDL. During the time you worked without a CDL, you
Columbia County equipment into other counties. You used equipment of other counties.
been involved in an accident, your lack of a license would certainly have become a factor in
determining liability of the County. Most troubling of all, you continued to report to work
you learned that your license expired when you were stopped by police in August.
Under the collective bargaining agreement between the Union and
Iowa County, an employe who
loses his CDL for more than sixty days for any reason may be permanently replaced by the
Section 14.01, Agreement. The Committee has determined to do so.
The Committee has determined that your negligence in seeking
renewal of your CDL, together
with your lack of candor on the issue, warrant your termination.
The Grievant was denied Unemployment Compensation benefits.
An Examiner, in affirming the initial
determination, found that the Grievant was terminated for misconduct.
The parties stipulated to the following issue:
Did Iowa County have just cause on August 25, 1998, to
discharge the Grievant, B.S., for failing
to have a Commercial Driver's License, operating county vehicles without a valid license,
to notify the Employer that his CDL had expired? If so, what is the appropriate remedy?
RELEVANT PROVISIONS OF THE COLLECTIVE
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:
. . .
C) To suspend, demote, discharge and take other
disciplinary action against employees
for just cause;
. . .
ARTICLE 4 DISCIPLINE AND DISCHARGE
4.01 Just Cause: No employee shall be
disciplined or discharged without just cause.
. . .
ARTICLE 14 COMMERCIAL DRIVER'S LICENSE
14.01 If an employee is required to have a CDL to
or her job and loses that CDL
for any reason, then the employee shall be immediately placed on layoff status. If that
able to obtain an occupational CDL within sixty (60) days of the date that his/her CDL is
then he/she shall be able to return to his/her former job within the limits of the occupational
After sixty (60) days from the date that the CDL is lost, the Employer is free to seek a
replacement employee to perform the work. If a permanent replacement is hired, the
loses his/her CDL shall have no right to his or her former job if the CDL is subsequently
if an occupational CDL is subsequently obtained.
14.02 In the event an employee does
obtain an occupational CDL which permits him or
her to return to his/her former job within the sixty (60) day time period, then the employee
on lay off status until such time as there is a vacancy in the bargaining unit which the
qualified to perform. (The Employer shall have the right to reasonably test the employee if
applies to perform a job which the Employer is not reasonably sure the employee is qualified
14.03 While on layoff status, the
employee shall not lose seniority but the employee shall not
be entitled to use or accrue any benefits under the contract other than death benefits. While
status, the employee shall be entitled to remain in the Employer's health insurance plan that
that time; however, the employee shall pay the full amount of the premium, on a monthly
such manner as shall be reasonably required by the Employer. Failure to tender the
premium, in full,
at such time and in such manner as shall be required by the Employer shall result in the
being removed from the Employer's health insurance group.
14.04 Any employee who loses his or
CDL who has not obtained an occupational CDL
within the sixty (60) day period described above may, at the sole option of the Employer, be
in another job in the bargaining unit which does not require a CDL as a condition of that
assignment may be made without prior posting. Any employee so assigned shall be paid at
rate of that job classification, as set forth in the contract, and shall be entitled to the ninety
increase, if he/she is still working in that capacity for that period of time.
14.05 Any employee who permanently
loses his or her CDL shall be terminated at that time
without being placed on layoff Status. Any employee who has been on layoff status for a
two (2) years shall be terminated.
14.06 At no time shall the Employer be
required to have more than two (2) employees in the
bargaining unit with occupational licenses. If there are two employees in the bargaining unit
occupational CDL licenses, then any subsequent person who loses his or her CDL shall be
layoff status and may not return to work at any job in the bargaining unit that requires a
there shall be less than two (2) employees in the bargaining unit with occupational CDL
the time of return.
. . .
RELEVANT PROVISIONS OF
THE WISCONSIN STATUTES
Section 343.20(2), Wis. Stats. The Department shall mail to the
last known address of the
licensee at least thirty (30) days prior to the expiration of the license a notice of the date
such license must be renewed. Failure to receive notice to renew such license shall not be a
to a charge of operating a motor vehicle without a valid operator's license.
. . .
Section 345.245(2)(b), Wis. Stats. Notification of suspensions,
revocations and cancellations.
An employe whose Commercial Driver's License is suspended, revoked or cancelled by a
the privilege to operate a commercial motor vehicle in any state for any period, including
disqualified from operating a commercial motor vehicle are subject to an out-of-service
notify his or her current employer of that fact before the end of the first business day after
the day on
which the employee receives notice of the suspension, revocation, cancellation,
. . .
Section 343.245(3m) Employer Notification Program.
A) The Department shall
establish by rule an Employer Notification Program to permit
an employer to register the name of an employee and be notified by the Department
whenever a conviction or suspension, revocation, cancellation, disqualification or
out-of-service order is recorded on the operating record of the employee. An employer
may withdraw an employee's name from the program at any time.
. . .
IOWA COUNTY HIGHWAY COMMISSION
IOWA COUNTY HIGHWAY
COMMISSION, EMPLOYEE HANDBOOK,
Work rules are defined as and limited to rules designated by the
Iowa County Highway
Transportation Dept. within its discretion which regulate the personal conduct of employees.
rules are not intended to limit the rights of employees, but rather to define those rights so the
Highway Transportation Dept. can obtain its objectives in an orderly manner.
The Highway Transportation Department
expects employees to perform their assigned duties at
or above satisfactory levels; to conduct themselves according to established policies and
to follow generally accepted standards of business behavior and to comply with all laws,
regulations applicable to their activities.
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.
Discharge will be used only as a last resort
when reasonable efforts have failed to remedy those
situations outlined under the following:
Employees of the Iowa County Highway
Department are prohibited from committing any of the
following acts during assigned working hours, including but not limited to:
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
3. Loafing, loitering, sleeping,
visiting, or engaging in unauthorized personal business.
4. Disclosure of confidential
information and/or records.
5. Falsifying records or giving
false information to other employees responsible for record
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.
7. Failure to report accidents
or injuries, including traffic accidents.
8. Poor performance.
9. Conduct which disrupt work
activities, including but not limited to, conducting union
activities during working hours.
Any violation of the above will be subject to the following disciplinary action:
1st Offense: remainder of
day off without pay
Offense: appear before the highway Transportation Committee and possible
Attendance & Punctuality
1. Failure to report promptly at the starting time,
leaving before the scheduled quitting time, or
failure to notify management of impending absence or tardiness. (Note: A 5-minute leeway
will be given for tardiness. If an employee does not call in ½ hour before his/her
starting time that he/she will be unable to be at work that day, he/she will not be paid for
2. Any employee working in or
from an outlying shop must check in 5 minutes before his/her
scheduled starting time and be in radio contact at all times after check-in. (Note: All radios
are to be on and operating loud enough to hear from a distance of 10 feet during working
3. Unexcused or excessive absenteeism. (Note:
Definition of excessive will be 3 times in 18
4. Leaving the place of duty
during scheduled working hours with a county vehicles. No
employee shall leave the place of duty before quitting time unless for repairs, maintenance,
the job is completed, or he/she is called away by management. This includes, but is not
limited to, using a county vehicles without permission and leaving the work area to go for
lunch or at break time.
5. No one should return to the
shop more than 20 minutes before quitting time unless
maintenance on unit is required. (Note: Examples of maintenance would be the greasing of
all fittings, changing of tires or lights, and washing of your vehicle. If a unit is already in
wash area, then you should be greasing your unit.) Do not stand around waiting for another
unit to be cleaned.
6. Failure to observe the time
limits of lunch, break, or wash up periods. (Note: one 15-minute
break is allowed in the morning.)
7. Engaging in any outside
activities which may improve the employes' independence of
judgement or his/her ability to perform duties as an employee of the county. (Note: This
includes, but is not limited to, working at an outside job when requested to work at or for
8. All overtime will be
authorized by the foreman, supervisors, or commissioner when deemed
9. Anyone who leaves work for any reason must
inform his/her foreman, superintendent, the
commissioner, and/or the parts room, that he/she will be leaving prior to his/her departure.
10. Smoking shall be done in
designated areas only.
Any violation of the above will be subject to
the following disciplinary action, except as noted
1st Offense: verbal
2nd Offense: written
3rd Offense: one
day off with no pay
Use of Property
1. Theft (Note: Employee will be terminated and
turned over to proper authorities for
2. Abuse or misuse of county
or private property, equipment or materials.
3. Any employee involved in
any type of accident while using county owned, rented, or leased
equipment will be required to appear before the highway Transportation Committee.
4. Unauthorized possession of
county and private property, equipment, including vehicles,
telephones, or mail service.
5. Unauthorized use of county
or private equipment, including vehicles, telephones, or mail
6. Unauthorized entry to
county property outside of assigned working hours.
7. Unauthorized lending,
borrowing or duplicating of keys.
8. Soliciting or accepting any
unauthorized compensation, reward or gift from outside sources
for any matter related to the employees' job as an employee of the county.
Any violation of the above will be subject to
the following disciplinary action except as noted
1st Offense: written
2nd Offense: 1 day
off without pay
1. Threatening, attempting or inflicting bodily
2. Threatening, intimidating,
or interfering with other county employees.
3. Unauthorized possession of
4. Making false or malicious
statements concerning other employees, supervisors, or the
highway Transportation Dept.
5. Possession of or use of
alcoholic beverages or unauthorized drugs during working hours.
6. Reporting for work in an
unsafe condition or under the influence of alcoholic beverages or
7. Sexual abuse (Note: Proof
thereof will be subject to termination.)
Any violation of the above will be subject to
the following disciplinary action except as noted
Offense: 3 days off with no pay
Offense: termination of employee (if he/she does not agree to treatment)
1. When fueling equipment, the engine will be shut
off and there will be no smoking allowed
around the unit.
2. All vehicles will be brought
back to the highway shop or outlying shops and will be fully
fueled up at the end of each working day.
3. All units will be checked by
the operator as to the condition of the lights, oil, tires, water in
radiator, and cleanliness of the unit before it is taken out of the shop. Each employee is
responsible for keeping his/her truck, piece of equipment, or work area clean. If any of
areas are to be found in an unsafe or unclean condition, it should be reported to the shop
foreman or the superintendent immediately.
4. No one but employees of the
highway Transportation Dept. may ride on or in any county
vehicles except in an emergency or when approved by management.
5. Safety guards and shields on
all equipment shall be kept in place except when removed for
repair work. At no time shall machine be operated without proper safety equipment in place.
6. Employees shall wear the
proper safety equipment recommended for the type of work they
are performing. Safety vests must be worn at all times when working within the road
right-of-way. (Note: Due to most working conditions for a highway Transportation Dept.,
tennis-type shoes are not allowed and long pants, (not shorts) and a shirt or t-shirt are
be worn during scheduled working hours.)
7. Hard hats must be worn
when working in the quarry, cutting brush or trees, snowfencing,
when doing any construction work, and any type of ditching, when not being the actual
operator of a motorized machine. (Note: One example is the operator of the backhoe while
digging a ditch need not have a hard hat on as long as he stays in the machine. Anyone
working outside around that area must wear a hard hat.)
8. Any gas, grease, fuel oil, or
other fluids spilled on shop floor or at work site should be
cleaned up immediately. (Note: If a large amount of gas, fuel or oil is spilled in an outside
work area, the commissioner or superintendent must be notified immediately.
9. When vehicles are equipped
with safety restraints, they must be worn at all times.
Any violation of the above, except as noted,
will be subject to the following disciplinary action:
1st Offense: verbal warning
2nd Offense: written
3rd Offense: one
day off with no pay
ANY EMPLOYEE WHO VIOLATES ANY
COMBINATION OF ALL 3 OF ALL OF
THE PREVIOUSLY LISTED RULES WILL BE GIVEN 3 DAYS OFF WITH NO PAY.
MORE VIOLATION OF ANY TYPE WILL RESULT IN TERMINATION.
CONTAINED IN THE EMPLOYEE'S HANDBOOK
SHALL BE DEEMED TO BE MERELY GUIDELINES. THE EMPLOYER MAY
MORE HARSH, THE SAME, OR LESS HARSH PENALTIES DEPENDING ON THE
FACTS, CONSISTENT WITH THE STANDARDS OF JUST CAUSE.
POSITIONS OF THE PARTIES
The Union contends that the County lacks just cause to discharge B.S. The parties
negotiated the loss of the CDL driving privilege in Article 14. In accordance with 14.01, the
should have been placed on layoff status for up to one day. The Grievant renewed his CDL
Tuesday, August 25 (the same day he was discharged). Under the circumstances, the grievant
entitled to return to his former position on or about August 26. An employe on layoff
is entitled to
recall. The Grievant's position was vacant and unfilled at the time he obtained his CDL.
had not at that time hired a permanent replacement. The 60-day period referenced in Article
the period of time an employe has to obtain an occupational license before the Employer can
permanent replacement. Even in cases where the employer might actually fill a position with
permanent replacement, the incumbent remains on layoff. The employe is not discharged.
The Union acknowledges that the period following the August 21 notice of expiration
license from Officer Carey is troubling. Whatever the Grievant's tortured reasoning may
he did not make the right choice. The Union notes that the Employer imposed the harshest
possible. The Union reviews the work rules and notes that the discharge penalty is more
is contemplated for positive tests for drug or alcohol, reporting for work in an unsafe
under the influence of alcoholic beverages or unauthorized drugs, threatening, attempting or
bodily harm and a failure to report accidents or injuries including traffic accidents, or
The Union acknowledges that the Grievant should assume responsibility for the timely
of his license. However, the Union contends that the lack of notice from the State to the
meaningful. The lack of notification implies that the State of Wisconsin does not consider
in renewal of a CDL as serious as revocation, conviction, etc., because it apparently did not
expired licenses. This does not excuse the Grievant's behavior, but serves to highlight the
between revocation based on driving record, drug screens and the like as opposed to
renew a license otherwise unrestricted and easily obtainable. The Union points to Section
343.245(3m), Wis. Stats., and notes that the Employer did not advantage itself of the
Employer Notification Program.
The Union contends that the Employer permitted the Grievant to work on Friday,
and Monday, August 24. The Union contends that the Highway Commissioner was not
concerned to take reasonable measures that would ensure the Grievant did not operate
requiring a CDL at that time. The Union acknowledges that the Unemployment
Administrative Law Judge found to the contrary, but contends that the ALJ was wrong.
The Union contends that the Grievant should be given credit for the sense of
obligation he felt
to his job. At a time of enormous stress in the Grievant's life, his job was an anchor.
actions were inappropriate, his work ethic should be acknowledged.
The Union contends that the Grievant deserved an opportunity to tell his side of the
the time, in an effort to retain his position. The County denied him that opportunity. The
contends that the Employer did not follow its own written work rules involving progressive
in reserving discharge as a last resort in its dealings with the Grievant. The Union
County's attitude in this matter as hypocrisy. The Union cites arbitral authority in support of
contention that the Grievant was entitled to be heard prior to the determination to terminate
the lack of fundamental due process and investigation, and for the failure to utilize
discipline in an appropriate circumstance.
It is the position of the Employer that Iowa County had just cause to discharge the
because his conduct was contrary to law and public policy. It is the view of the Employer
and state law regulating the CDL are not external laws, which may or may not be applied
agreement, but rather, they are a part of the Agreement. Article 14 was drafted and
included in the
Agreement in response to the CDL legislation. In the Employer's view, the Grievant had
the expiration of his license. The County contends that while Article 14 creates rules to
the CDL, it does not modify the law applicable to CDLs or license renewal in general.
Under the law,
and the contract, if an employe loses his CDL, that employe cannot work. The County
Wisconsin Statutes, specifically 343.20(2), flatly rejects the Grievant's excuse that he did not
notice of his license renewal. The burden of a timely renewal is statutorily placed on the
It is the licensee's obligation to notify the DOT within 10 days of a change of address. The
license has its date of expiration on its face.
Both federal and state law required the Grievant to notify the County of the loss of
The Employer cites both federal law and Section 343.245, Wis. Stats. The Employer
the Grievant did not bother to inform the DOT of his current address, ignored the expiration
his license, and defied the direction of Deputy Carey not to drive without a license. In the
view, sustaining the Union's grievance would send the worst possible message to CDL
would tell them that the mandate of federal and state government is invalidated by the just
standard of the labor agreement. It would indicate that an employe can utterly fail to attend
duty to maintain a valid license, and intentionally drive without a license after learning of its
The Employer contends that it had just cause to discharge the Grievant under the
terms of the
collective bargaining agreement. Pointing to Article 14, the County contends that the CDL
is a bona
fide job qualification for the Highway Department. Article 14
represents an agreement by the parties
to mitigate the severity of the consequences of loss of a CDL. The employe has 60 days to
his or her position by obtaining an occupational or permanent license. Following 60 days,
employe may be permanently replaced and loses his or her job. Had the Grievant acted
come forward when his license expired, or when he was personally notified of its expiration
would be a different case. However, he did not. He chose instead to ignore his duty to keep
DOT informed of his current address, to disobey a law enforcement officer who told him not
and to drive heavy equipment into and out of the county without a license. The Employer
his conduct as beyond negligent.
In the Employer's view, the Grievant's lack of honesty serves to forfeit any
Article 14 forbearance. His actions which began as reckless disregard of licensing procedures
culminated in willful defiance of the law and the County's interests. He should not be
allowed to hide
behind the savings provision of Article 14 when he made no attempt to honestly invoke them.
actions should be analyzed as a discharge for lack of qualifications.
The Employer contends the same conclusion results under an analysis of Article 14.
Grievant lost his CDL on June 5, 1998. He was without a driver's license from June 5
August 25, the date of his termination, a total of 81 days. He did not obtain a new license
days of the date the license was lost. The County had a right to permanently replace him.
County did. He had "no right to his or her former job".
There are two provisions of the collective bargaining agreement operative in this
Article 4 and Article 14. Article 14 regulates the parties' understanding relative to the
loss of a commercial driver's license. Under Section 14.01, loss of a commercial driver's
results in immediate layoff. The provision contemplates employer awareness that the
lost his or her license. The employer's ignorance of the fact that the grievant lost his CDL
is a direct
product of the grievant's failure to so notify the County. As a consequence, the grievant was
placed on immediate layoff. The provision goes on to allow an employe to obtain a
within sixty days and return to the job. Given the sequence of events, this provision never
The employer is free to permanently replace the employe who fails to secure a CDL
sixty days. If the employer elects that option, the employe has ". . .no right to his or her
. ." The parties dispute the meaning of these words. The employer contends that these
the individual is fired. The Union believes the words to not be applicable due to the facts. I
the meaning of that clause is found in paragraph 14.2.
Section 14.02 provides that the employe who is unable to get a license to return to
within sixty days remains on layoff until such time as there is a vacancy. Reading 14.01 and
together, there is no discharge; just a layoff until such time as the individual is relicensed to
work becomes available. If 14.01 is read to result in a discharge, 14.02 has no meaning.
The Union contends that the grievant got his license back on August 25, and so had a
to return to the job at that point. The Union notes that at that point no permanent
been hired. The Union is right on the facts, but the context of the Union's analysis is that
drove for 81 days without a license, and that he never provided the employer with the notice
by law, and implicitly required by the contract. Given the grievant's behavior in this regard,
estopped from making such a claim. That is, given his own behavior, the grievant is in no
to insist upon a return to the job effective August 25 or so. The County has a
in the grievant's behavior.
Paragraph 14.03 addresses an employe's seniority and health insurance status while
The paragraph is not relevant to the analysis in this proceeding, other than that it supports
that an employe on layoff for loss of a CDL is not treated as a terminated employe.
14.04 describes an employer option not exercised in this proceeding. As such, it is not
relevant to this dispute, other than that this paragraph continues to treat an employe who has
without a CDL for more than sixty days as having some ongoing relationship with the
That is in contrast to treating the individual as having been terminated.
Paragraph 14.05 is directly relevant to this dispute, and to the construction of
Article 14 as
a whole. Article 14.05 specifically addresses the circumstances in which an employe who
or her CDL is terminated. The paragraph describes two situations; one, permanent loss of
and two, layoff status for two years. Neither of those events occurred. The grievant
CDL. Even if June 5, 1998 is considered the constructive date of layoff, two years have not
The existence of Article 14.05 confirms that the paragraph 14.01 reference to "no right to his
former job" is a reference to the particular job, not a declaration that employment rights
I do not believe that Article 14.06 is relevant to the analysis in this proceeding.
It is my conclusion that Article 14 does not lead to the termination of the grievant. If
analysis is limited solely to Article 14, the grievant is entitled to be placed on layoff status
a CDL. Article 14 does not support a termination of the grievant's employment.
However, the analysis is not limited to Article 14. Article 4 permits the County to
an employe for just cause. Here, the grievant allowed his driver's license, and CDL to
licenses are necessary to the performance of his job. He drove all summer without required
Upon being starkly confronted with the fact that he had no license, the grievant decided to
chance that he could slide for a week. This, in the face of a deputy directing him not to do
is little analysis necessary to conclude that the grievant's behavior in this regard was
misguided. He placed himself and his employer at risk. The Union urges that his domestic
contributed to his bad judgment, and further cites his work ethic. The Union is no doubt
However, workers who display extraordinarily poor judgment typically do so for a reason.
limits as to what the employer must tolerate.
Here, the grievant engaged in behavior that he reasonably knew could lead to his
Once confronted, he knew that he had been driving without a license for 80 days. He had
warned by a deputy not to drive. If his actions on Friday were the product of muddled,
thinking, he thereafter had the weekend to contemplate. Saturday and Sunday provided the
with the opportunity to put some distance between himself and the troubling events of
night. It further gave him the opportunity to reflect on the fact that he had spent Friday
a piece of equipment which required his Commercial
Driver's License. Notwithstanding this opportunity, he worked Monday. But for his
the grievant would also have worked on Tuesday and Wednesday. His was a conscious
drive and operate equipment without a license. His misfortune was that he got caught.
The decision of the Unemployment Compensation division that the grievant was
for misconduct is not binding on an arbitrator construing the terms of the parties' collective
bargaining agreement. However, I have no quarrel with that conclusion. The grievant did
in misconduct. His actions expose him to discipline. The sole question in this proceeding is
the employer overreacted by summarily terminating him.
This termination is troublesome for two reasons. The first, is that the employer
to terminate the grievant without ever talking to him. Fundamental notions of fairness
the grievant should be confronted with the basis for his termination, and afforded an
explain and/or present his side of the story. (Cf. Cleveland Board of Education v.
118 LRRM 3041 (1985)). That concept is basic to our notion of due process and procedural
and did not occur in this proceeding.
The severity of this discipline, measured against the employer's progressive discipline
handbook, is a second basis of concern. The collective bargaining agreement contains a just
standard. The County has adopted work rules which purport to construe and apply just
to provide employes notice as to the consequences of certain behavior. Those work rules
a philosophy of discipline which the County purports to adhere to.
The discipline schedule is prefaced by the following provision:
"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 employe's self-esteem.
Discharge will be used only as a last resort when reasonable
efforts have failed to remedy those
situations outlined under the following: . . ."
Against that philosophical background, the employer has laid out a lengthy list of
and potential sanctions for those behaviors, as a warning/notice to County employes.
Discipline for a first offense for work performance rule violations, including
job neglect, sleeping on the job, and falsifying records is one day without pay. Less serious
involving attendance and punctuality are subject to a four-step progressive discipline
Abuse of property work rule violations are subject to a
three-step progressive discipline process. Personal injury work rule violations, some of
very serious matters, including inflicting bodily injury, possession of weapons, use of alcohol
drugs on the job, are subject to a two-step progressive disciplinary process.
There are two specific work rule violations, theft, and sexual abuse, which the
declares to be offenses that can lead to automatic termination. These are exceptions to an
lengthy list of sins. They stand alone in the Employer's handbook. With the exception of
offenses, all other behaviors described are subject to a progressive discipline schedule. This
progressive discipline approach is consistent with the corrective philosophy expressed in the
paragraphs of the discipline portion of the work rules.
The grievant is a young man who was functioning under considerable stress at the
of his termination. His behavior reflected very poor judgment. But the exercise of
is precisely the kind of behavior susceptible to a progressive discipline scheme. This
grievant has no
prior disciplinary record. There is nothing in this record that suggests that this man is an
incapable of learning from his own prior mistakes. By all accounts, he is a willing worker.
This award does not seek to diminish the seriousness of the grievant's actions. What
was wrong. I merely note that on its face, his behavior is not markedly worse than rank
insubordination, falsifying records, bringing a weapon to the worksite, drinking or taking
the job; all of which call for some form of progressive discipline under the Employer's work
The summary paragraph of the work discipline code reserves to the Employer the
modify the guidelines set forth in the disciplinary schedule. Specifically, the Employer
itself the right to impose harsher penalties depending upon the facts. To the extent the
this proceeding reflects the Employer's determination that the facts involved in this matter
termination and that the grievant displayed incorrigible behavior, the Employer's failure to
explore the facts from the grievant's perspective is inexplicable.
In summary, I do not believe the Employer had just cause, as that term is defined in
Employer's work rules, to terminate the grievant. I believe his poor judgment is potentially
remediable. I believe the Employer has committed to a progressive discipline scheme in all
extreme cases. I do not believe the Employer is free to impose more harsh sanctions without
minimally undertaking a thorough review of the facts.
The grievance is sustained.
I am not awarding backpay in this matter. It was the grievant's responsibility to find
advise his Employer that his CDL, and his driver's license, had expired on June 5. He
failed to do
so. He is thus estopped from contending that the sixty-day period described by Article 14
begin to run on June 5. As of August 5, I do not believe that he was any longer entitled to
job. While I do not believe the Employer was entitled to terminate the grievant, I do believe
Employer was entitled to put him on layoff status. This Award converts the August 25, 1998
discharge to a layoff (effective August 25, 1998) as that is described in Article 14.01
of the collective
bargaining agreement. The grievant is entitled to the restoration rights described by Article
grievant is not entitled to bump anyone hired between August 25, 1998 and the date of this
However, if such a person exists, the August 25, 1998 layoff date shall be adjusted to the
of that individual.
Dated at Madison, Wisconsin this 6th day of August, 1999.
William C. Houlihan, Arbitrator