BEFORE THE ARBITRATOR
In the Matter of the Arbitration of a Dispute Between
DODGE COUNTY PROFESSIONAL
LOCAL 1323-A, AFSCME, AFL-CIO
DODGE COUNTY (DEPARTMENT OF HEALTH AND
(5-20-99 grievance, No. 99-1 2-day suspension of Grievant
Mr. Sam Froiland, Staff Representative, Wisconsin Council 40,
AFSCME, AFL-CIO, P.O. Box 944, Waukesha, WI 53187, appearing on behalf of the
Union and Grievant.
Davis & Kuelthau, S.C., by Attorney Roger E. Walsh, 111 East
Kilbourn Avenue, Suite 1400, Milwaukee, WI 53202-6613, appearing on behalf of the
At the joint request of the County and Union, above, the Wisconsin Employment
Commission designated the undersigned Arbitrator, Marshall L. Gratz, to hear and decide a
concerning the above-noted grievance which arose under the parties' 1997-99 collective
By agreement of the parties, the record was submitted by stipulation in lieu of a
stipulated record consists of a set of documentary exhibits and a set of stipulated facts. The
then submitted written arguments on the basis of that record, consisting of initial briefs and a
brief by the County. The Union chose not to submit a reply brief. Briefing was completed
October 9, 1999, marking the close of the record.
The stipulated documents make it clear that the parties jointly chose to submit this
the undersigned with knowledge of the fact that the Arbitrator had actively mediated the
agreement to the Grievance Settlement Agreement at issue in this case.
Notwithstanding the Arbitrator's participation as mediator in the creation of the
Agreement, this Award is based exclusively on the record evidence and arguments submitted
parties in the current grievance arbitration proceeding.
The Union brief contains the following statement regarding the issues for
the Arbitrator in this matter:
The parties, in a September 8, 1999 telephone conversation,
stipulated to the following issue:
The only issue to be decided in this case is whether under the provisions of a May 3, 1998
Settlement Agreement, the County could impose a suspension on [the Grievant]? If not,
what is the
The County brief contains the following statement concerning the issues for
arbitration in this
In a September 8, 1999 telephone conversation, the parties
stipulated to the following issue:
The only issue to be decided in this case is whether under the provisions of Section B(5) of a
3, 1998 Grievance Settlement Agreement, the County could impose a suspension on [the
If not, what is the appropriate remedy.
It is the County's understanding that the
Union claims that under Section B(5), the County
could only impose a written warning on [the Grievant].
It is also the understanding of the County
that neither the length of the suspension, or whether
there was cause for the discipline is at issue between the parties.
It is clear from the stipulated record and from the balance of their briefs that the
respective references to a "May 3, 1998 Grievance Settlement Agreement" were intended to
the "March 3, 1998 Grievance Settlement Agreement" that was included among the stipulated
Except for correcting the date of the Grievance Settlement Agreement, the Arbitrator
it appropriate to address the issues as they were quoted in the Union's brief. Accordingly,
for determination in this matter are as follows:
1. Under the provisions of the parties' March 3, 1998 Grievance
Settlement Agreement, could
the County impose a suspension on [the Grievant]?
2. If not, what is the appropriate remedy?
PERTINENT PROVISIONS OF THE MARCH 3,
. . .
B. The Union and [the Grievant] agree:
. . .
(3) [The Grievant] understands that he has
an obligation to report for work in a timely manner.
Tardiness occurs if [the Grievant] arrives at work one or more minutes after 9:00 a.m. on
or after 8:30 a.m. on any other scheduled work day.
(4) [The Grievant] will stop at the front
desk immediately upon arrival to and departure from
work and note his exact arrival and departure time according to the time clock located at the
receptionists (sic) desk. This notice of arrival and departure time shall remain with the
In the event, that the receptionist is not available, [the Grievant] shall proceed directly to his
and telephone his supervisor, Mr. Edward Ormont, with the exact time of his arrival and
If Mr. Ormont is not available, [the Grievant] shall leave a voicemail message identifying
(5) In the event [the Grievant] is tardy on
two occasions within a rolling one month period, the
County may impose discipline on [the Grievant], provided however, that the parties agree
first instance of discipline for such tardiness after the date of this Agreement will be a
letter. Each additional occasion of tardiness within this rolling one month period shall
Grievant] to additional discipline.
. . .
The facts are undisputed.
On March 3, 1998, the County, the Union and the Grievant entered into the
Settlement Agreement referred to in ISSUE 1 and quoted above.
On June 16, 1998, Grievant received a warning letter from his supervisor for being
May 13, 1998, and May 19, 1998. Between May 19, 1998, and May 5, 1999, there were no
when Grievant was tardy on two occasions within a rolling one month period. On May 6,
May 13, 1999, Grievant was tardy. As a result of being tardy on May 6 and 13, 1999, the
on May 20, 1999, issued Grievant a two-day suspension.
On May 20, 1999, Grievant filed Grievance No. 99-1 asserting, in pertinent part, that
suspension be rescinded with back pay on the ground that the Grievance Settlement
limited to a written warning the discipline the County could impose in the circumstances.
The Grievance was denied and ultimately the parties agreed to submit the ISSUES to
Arbitrator for final and binding determination, as noted above.
POSITIONS OF THE PARTIES
The language of B(5) of the Grievance Settlement Agreement is clear and
be disciplined for tardiness, Grievant must be tardy on at least two instances within a rolling
one-month period. Once there are two instances of tardiness within that rolling one-month
County may impose discipline. For the first situation that two occasions of tardiness
occurred in a
rolling one month period after the date of the Grievance Settlement Agreement (March 3,
discipline that could be imposed is limited to a written warning -- not a verbal warning, but
severe than a written warning. After a written warning is properly issued in that first
following March 3, 1998, the language limiting discipline to a written warning has no further
application. The last sentence of B(5) applies only in cases of three or more occasions of
within any rolling one-month period, which is not what happened in this case.
B(5) does not limit the circumstances in which the County can suspend the Grievant
tardiness to situations in which Grievant is tardy on more than two occasions within a
period. That interpretation is contrary to the clear language of the Grievance Settlement
on its face and in the context of its bargaining history. That interpretation must also be
a harsh and nonsensical outcome because it would allow the Grievant to repeatedly be tardy
occasions in multiple successive rolling one-month periods with the County limited to issuing
than a written warning in each of those periods.
Accordingly, the Arbitrator should deny the grievance by concluding that under 5(B)
Grievance Settlement Agreement, the County had the authority to impose a two-day
Grievant's tardiness on May 6 and 13, 1999, and that the County's discipline was not limited
The language of B(5) plainly indicates that Grievant's pattern of tardiness is to be
by a rolling one-month period of time. In effect, the County has agreed to forgive Grievant
instance of tardiness in any rolling month. If, however, more than one instance of tardiness
for the Grievant in a rolling month, ". . . the parties agree that the first instance of discipline
tardiness after the date of this Agreement will be a written warning letter." Additionally, if
if instances of tardiness beyond two in a rolling month occur, the final sentence of B(5)
"[e]ach additional occasion of tardiness within this rolling one month period shall subject [the
Grievant] to additional discipline."
The Grievant went almost one year between his most recent instances of two
within rolling one month periods. While Grievant's tardiness on May 13, 1999, triggered
right to discipline him, the language of B(5) clearly spells out that the first instance of
be a written warning. The County's interpretation of the written warning limitation as
to the initial tardiness discipline imposed after the date of the Grievance Settlement
ignores the rolling one-month concept, and must therefore be rejected.
Accordingly, the suspension issued on May 20, 1999, should be rescinded and purged
any and all personnel files, and Grievant should be made whole for all wages and benefits
reason of the County's imposition of the suspension. The County should be allowed to
rescinded suspension with a written warning as regards his tardinesses on May 6 and 13,
However, for the reasons noted above, the County exceeded its rights under the Settlement
Agreement by imposing the more severe disciplinary action of suspension.
The Arbitrator finds the meaning of the language of B(5) on its face to be clear and
unambiguous, making reference to the bargaining history unnecessary.
As the Union correctly asserts in its brief, under the language of B(5), "[i]n effect,
has agreed to forgive [the Grievant] for one instance of tardiness in any rolling month." The
sentence of B(5) so provides by stating, "[i]n the event that [the Grievant] is tardy on two
within a rolling one month period, the County may impose discipline on [the Grievant] . . ."
Grievance Settlement Agreement language thereby limits a tardiness-related offense for which
Grievant can be disciplined to a situation in which more than one tardiness in a rolling
period occurs. As a result, the County is precluded from imposing discipline of any kind for
occasion of tardiness that is preceded and followed by at least a month free of tardiness. In
the rolling one-month concept set forth in B(5) is given its full and meaningful effect by the
proposed interpretation of that language.
The Union is also correct when it asserts that, "[a]dditionally, in the event that
tardiness beyond two in a rolling month occur, the final sentence of paragraph B(5) provides
'[e]ach additional occasion of tardiness within this rolling one month period shall subject [the
Grievant] to additional discipline'" beyond the discipline imposed by the County on account
first two occasions of tardiness in that rolling one-month period.
However, the Arbitrator does not agree with the Union's further assertion that B(5)
unconditionally protects Grievant against being disciplined more severely than a written
where, as here, two occasions of tardiness within a rolling one-month period are followed by
a month free of tardiness and then by another two occasions of tardiness within a rolling
The only part of B(5) that limits tardiness-related discipline of Grievant to a written
is the clause in the first sentence which reads, "provided however, that the parties agree that
instance of discipline for such tardiness after the date of this Agreement will be a written
letter." That clause is expressly made applicable to "the first instance of discipline for such
after the date of this Agreement." It follows that the clause does not apply to the second or
subsequent instance of discipline for such tardiness after the date of the Grievance Settlement
Agreement. The parties' express specification of a situation to which the clause applies
indicates that the parties intended to exclude its application to all other situations.
Furthermore, the Union's interpretation treats the "provided however . . ." clause as
if it did
not contain the words "after the date of this Agreement" at all. Such an interpretation is
the well-established standard of contract construction that, if possible, all parts of an
should be given some effect rather than rendered entirely meaningless.
The "first instance of discipline for such tardiness after the date of [the Grievance
Agreement]" was the written warning issued as regards Grievant's being tardy on May 13
1998. Therefore, the discipline issued by the County as regards Grievant's being tardy on
May 6 and
13, 1999 was not "the first instance of discipline for such tardiness after the date of [the
Settlement Agreement]." Accordingly, the limitation to a written warning contained in the
however . . ." clause did not govern the discipline imposed for the May 6 and 13, 1999
The concluding sentence of paragraph 5 clarifies that the provisions authorizing the
to impose discipline for a second tardiness in a rolling one month period do not preclude the
from imposing additional discipline for a third or additional instance of tardiness occurring
single rolling one-month period -- a situation not involved in this case. Neither that sentence
Grievance Settlement Agreement as a whole wipes Grievant's disciplinary record clean of
tardiness-related discipline after the passage of a month without another tardiness.
For those reasons, the Arbitrator finds it necessary and appropriate to reject the
proposed interpretation of paragraph B(5) in favor of the County's, which gives effect to all
the paragraph, including the rolling one-month period. Therefore, the Grievance Settlement
Agreement did not prohibit the County from imposing a suspension in the circumstances of
The Union has also pointed out that "[the Grievant] went almost one year between
1998 and May 6, 1999 in between his most recent instances of tardiness." Such an argument
have been appropriately considered if the issues submitted for determination had included
the two-day suspension penalty imposed in this case exceeded the County's rights under the
standard for discipline set forth in the parties' 1997-99 Agreement. However, in this case,
expressly agreed that "the only issue to be decided in this case . . ." by the Arbitrator was,
whether the Grievance Settlement Agreement precluded the County from imposing a
The Arbitrator has concluded that the Grievance Settlement Agreement did not
County from imposing the instant suspension. Accordingly, consideration of factors bearing
the general propriety of the penalty under the 1997-99 Agreement is neither necessary nor
in resolving the issues submitted for arbitration by the parties in this case.
DECISION AND AWARD
For the foregoing reasons and based on the record as a whole, it is the decision and
the Arbitrator on the issue submitted that:
1. Yes. Under the provisions of the parties' March 3, 1998
Grievance Settlement Agreement,
the County could impose a suspension on [the Grievant].
2. The subject grievance is denied.
Dated at Shorewood, Wisconsin, this 22nd day of December, 1999.
Marshall L. Gratz, Arbitrator